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8.3.

bound, in assessing the damages, to confine themselves to the CH. XXV. diminution of the value of the advowson to the plaintiff, by the

Of the Amount defendant's life interest; nor, in estimating the annual proceeds, Recoverable to deduct the curate's stipend (t).

generally.

We have already referred to the rule, whereby the defendant, Evidence in

reduction of in an action for breach of contract, is allowed to give evidence of damages. breaches of contract by the plaintiff, in order to reduce the damages (u). But it is said that this rule does not admit of the damages being reduced, by showing a breach of contract on the plaintiff's part subsequent to the commencement of the action (x). So where the defendants had contracted with the plaintiffs, to discharge a ship of the plaintiffs without delay; and in an action against the defendants for breach of that contract, it appeared that—from the fact of another ship, in which some of the plaintiff's were interested, having been substituted for the purpose for which the former ship was acquired--those plaintiffs had, by reason of the breach of contract complained of, made profits which they would not otherwise have made: it was held, that the damages which had been sustained by the plaintiffs jointly, could not be reduced by the amount of profits so made (y). And in an action against a railway company for injury to a passenger, the defendants may not take into account, in reduction of damages, a sum received by the plaintiff on an accident insurance policy (2).

SECT. 4.-Inadequate Damages.

In all cases where the damages may be ascertained by mere Too high

damages. calculation, the Court will grant a new trial, or a new assessment of damages, if the damages given appear to be excessive (a), except where the value on which the damages were calculated was assented to by both sides at the trial (1). A similar course will be taken where the damages appear to be Too low

damages. too low (c). If the plaintiff is entitled to substantial damages, and a verdict Power of

Court to for the plaintiff cannot be impeached except on the ground of reduce

damages. (1) Lord Sondes v. Fletcher (1822), 5 (a) See Chit. Arch. Pr. (1885), Vol. I., B. & Al. 835.

p. 735 ; Mayne on Damages, 7th ed. (u) Ante, pp. 496, 621.

(1903), Ch. XX., sect. 4, p. 617. (a) Per Jervis, C.J., Bartlett v. Holmes (0) Hilton v. Fowler (1836), 5 Dowl. (1853), 13 C. B. 630, 638.

312. (y) Jebsen v. East and West India (c) See Phillips v. London and South Dock Co. (1875), L. R., 10 C. P. 300. Western Rail. Co. (1879), 5 C. P. D.

(2) Bradburn v. Great Western Rail. 280 ; and p. 420, ante. Co. (1874), L. R., 10 Ex. 1.

CH. XXV.

excessive damages, the Court may refuse a new trial unless the 8. 4.

defendant will consent to the damages being reduced to such an Inadequate

Damages. amount as the Court would consider not excessive had they been Belt v. Lawer, given by the jury. So it was held by the Court of Appeal in

Belt v. Lawes (d), a decision in a libel case, but apparently equally

applicable to the case of contract. Unliquidated Where, as in actions for breach of promise of marriage (see damages.

ante, p. 477), the claim is for unliquidated damages, the Court will rarely interfere on the ground of the damages being too high, and scarcely ever on the ground of their being too low (e).

(d) Belt v. Lawes (1884), 12 Q. B. D. 356, C. A.

(e) See Mayve at pp. 620, 623.

CHAPTER XXVI.

ASSIGNMENT, NOVATION, AND DEVOLUTION OF CONTRACTS.

1. Assignment.....
2. Novation....
3. Devolution

PAGE

721 725 726

SECT. 1.- Assignment.

CONTRACTS, being things in action, were not assignable at Common law common law without the consent of both contracting parties, but rule. this rule was subject to two exceptions (1) that the Crown could assign a contract, and (2) that the holder of a bill of exchange could assign it by law merchant (a).

But the general rule of equity was that a contract could be Rule in assigned, so as to give the assignee a right in equity to sue in his

equity. own name thereon (b).

A yearly tenancy is assignable, if not at common law, at all Yearly events under the Real Property Act, 1845, 8 & 9 Vict. c. 106,

tenancy s. 6 (c).

By 32 Hen. 8, c. 34, contracts between landlord and tenant Statutory concerning the land demised were annexed to the reversionary right to

assign. estate therein, so that the assignee of both landlord and tenant might both sue and be sued upon them (d); bills of exchange and promissory notes are assignable under the Bills of Exchange Act, Bills and 1882, 45 & 46 Vict. c. 61 (e); the Policies of Assurance Act, 1867, 30 & 31 Vict. c. 144, and the Policies of Marine Assurance Act, Policies. 1868, 31 & 32 Vict. c. 86, give the assignees of life and sea insurance policies the right to sue thereon in their own names; the Bankruptcy Act, 1883, 46 & 47 Vict. c. 52, s. 50, sub-s. 5, Bankruptcy. repeating former enactments, provides that the choses in action of a bankrupt are to be deemed to have been duly assigned to his

notes.

(a) See per Blackburn, J., Crouch v. Crédit Foncier (1873), L. R., 8 Q. B. 374.

(6) Watson's Compendium of Equity, tit. “Contracts," Ch. V.; Row v. Dawson (1749), 1 Ves. 331, and notes to Ryall v. Bowles, 2 Wh. & T., at p. 765.

C.C.

(c) Allcock v. Moorhouse (1882), 9 Q. B. D. 366, C. A.

(d) And see Conveyancing Act, 1881, ss. 10–12.

(e) Ante, p. 429 ; and see Crouch v. Crédit Foncier, ubi sup., per Blackburn, J.

46

s. 1.

CH. XXVI. trustee in bankruptcy; and the Judicature Act, 1873, 36 & 37

Vict. c. 66, by sect. 25, sub-sect. 6, enacts as follows: Assignment.

Any absolute assignment by writing under the hand of the assignor (not Assignment of debt or

purporting to be by way of charge only) of any debt or other legal chose in other legal action, of which express notice in writing shall have been given to the debtor, Chose in

trustee, or other person from whom the assignor would have been entitled to action, by

receive or claim such debt or chose in action, shall be, and be deemed to have written notice to

been effectual in law (subject to all equities which would have been entitled debtor, &c. to priority over the right of the assignee if this Act had not passed) to pass Jud. Act, and transfer the legal right to such debt or chose in action from the date of 1873, s. 25 (6). such notice, and all legal and other remedies for the saine, and the power to

give a good discharge for the same, without the concurrence of the assignor; provided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or anyone claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court of Justice, under and in conformity with the provisions of the Acts for the relief of trustees.

This sub-section gives no new right of action which did not exist before (f); but appears to invalidate a parol assignment, which was valid in equity before the Act (g). It has been said. however, that there are many cases in which there may be an

equitable assignment independent of the sub-section (1). Absolute

The words “absolute assignment " cover an assignment of assignment.

moneys not yet due (i), or of debts to a creditor, the surplus to Brice v. Ban. nister.

be paid to the assignor (k), but have been said not to cover the Burlinson v. assignment of a mortgage by the mortgagee to his trustees with llull.

a proviso for re-assignment in a certain event (1). Where debts were assigned by mortgage in consideration of advances made and to be made by the assignees, and the mortgage deed contained a proviso for redemption and re-conveyance on repayment of all

moneys advanced, this was held to be an absolute assignment (m). Unascer

An unascertained amount cannot be assigned (n), and it has tained

been twice (0) said to be doubtful whether a part of a debt can be.

A contract of sale is assignable. This was held by the High Part of debt. Contract

Court in Torkington v. Magee (P), in respect of the sale of a of sale.

reversionary interest in personal property. Torkington v. Vagee.

(f) Schröder v. Central Bank of London (m) Tancred v. Delagoa Bay, de., Co. (1876), 24 W. R. 710 and p. 437 (0), ante. (1889), 58 L. J., Q. B. 459, following

(g) See Re Richardson (1885), 30 Harle's case, supra, and disapproving Ch. D. at p. 397, per Kay, J.

Burlinson v. Hall, supra. (h) See Annual Practice, p. 37 ; Pol. (n) Jones . Humphreys, [1902) 1 K. B. lock on Contracts, 6th ed., at p. 206. 10.

(i) Brice v. Bannister (1878), 3 Q. B. D. (0) In Jones v. Humphreys, supra, and 569, C. A. ; diss. Brett, L.J.

in Durham v. Robertson, [1898] 1 Q. B. (k) Burlinson v. Hall (1884), 12 765. Q. B. D. 347.

(p) Torkington v. Mayee, [1902] 2 (l) National Provincial Bank of Eng. K. B. 427, reversed on another ground, land v. Harle (1881), 6 Q. B. D. 626. (1903), 1 K. B. 644, C. A.

amount.

S. 1.

pay rent to

of notice.

Where a landlord borrowed money of the plaintiff and gave him CH. XXVI. a letter addressed to a tenant of the landlord, of which letter the

Assignment tenant had notice, directing him to pay the rent to the plaintiff of Contract. until the order should be countermanded by the plaintiff, it was Direction of held that this was an absolute assignment within the sub-section, landlord to and that the plaintiff could sue the tenant for the rent (q), but a creditor. direction by a reselling vendor of goods to the purchaser to pay Knill v.

Prowse, the price to bankers who had advanced money to the vendor before the resale has been held not to be (r). The effect of disregarding the notice of assignment, by payment Effect of

disregard of the original creditor notwithstanding such notice, will be that the debtor will have to pay the assignee as well. This appears Brice v. from the very hard case of Brice v. Bannister (s). There a ship

Bannister. builder agreed to build a ship for the defendant, before completion of which the shipbuilder, being in debt to the plaintiff, by order in writing directed the defendant to pay the plaintiff 1001, out of moneys due or to become due from the defendant to him, and the plaintiff gave notice in writing of this order to the defendant, who however disregarded the notice, and afterwards paid the shipbuilder more than 1001., being the balance of the contract price, of which parts had been paid in instalments. It was held that there had been a valid assignment of the debt, and that the fact that the defendant had already paid the shipbuilder all the contract price was no answer to the assignee's claim.

Where a debt due to a firm was assigned by one partner to the Equitable defendants by writing, and afterwards by the other partner to the assignments

. plaintiff by deed, and the plaintiff gare a notice to the debtor before the defendants, it was held that there was a valid equitable assignment to the plaintiff in priority to the defendants (t).

Upon the exact extent of the right of one party to assign a con- Extent of tract without the consent of the other there is no direct authority.

assign. Contracts for the payment of money, and contracts for the sale or occupation of land, can beyond doubt be assigned by either party merely on notice to the other. As to other contracts, there is an Contracts for admitted rule (which has been four times applied to contracts skill, &c. between author and publisher (u)), that they cannot without consent be assigned if the individual skill or other personal qualifications of the assignor were relied on by the party contracting with him (x).

Priorities

(9) K’nill v. Prowse (1884), 33 W. R. 163.

(7) Brandts, Sons & Co. v. Dunlop Rubber Co., (1904) 1 K. B. 387, C. A., reversing Walton, J.

(8) Brice v. Bannister (1878), supra.

(1) Marchant v. Morton, [1901] 2 K. B. 829; 70 L. J., K. B. 820 ; 85 L. T. 169,

per Channell, J.

(u) Stevens v. Benning (1855), 6 De G. M. & G. 223, App. ; Reade v. Bentley (1857), 3 K. & J. 271 ; llole v. Brailbury (1879), 12 Ch. D. 886; Griffiths v. Tower Publishing Co., [1897] 1 Ch. 21.

(2) Robson v. Drummond (1831), 2 B. & Ad. 303; Humble v. Hunter (1848).

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