Assignment-Rights of Assignee-Assignee' of bankrupts claims 'can recover
only purchase price

Assignment-Unliquidated damages claim assigned
Bankruptcy-Assignment-Assignee of bankrupts claims can recover only pur-.
chase price of assignment

Reception-Assignment-English Judicature Act section 25 (6) applicable in
the Sudan

When the receiver of a bankrupt's estate assigns on unliquidated dam-
ages claim to the wife of, the bankrupt, the assignment is valid when the
claim is ascertainable and the assignment is absolute, under the English
Judicature Act 1873, section 2S (6); but in these circumstance the assignee
can receive no more than the purchase price of the assignment plus interest

                and costs,                                                        

Civil Justice Ordinance 1900, s. 4.

Huges v. Pump House Co. Ltd. [1902] 2 K.B. 190.
Jones v. Humphreys [1902] 1 K.B. 10.

Egyptian Mixed Civil Code, Art. 442.

English Judicature Act 1873, s. 2S (6).

French and Egyptian Law, C.C. 1699.

Action

Advocate: Mr. Francoudi ... for defendant

1926. Halford J.: Nima Bint Saleh has: purchased from the
official receiver, as receiver of the bankrupt estate of her husband
Ishak Daoud, a claim for £E.50 unliquidated damages for breach of
contract against the defendant. The consideration for the assignment
was tlte sum of £E.5. The first issue of law to be decided is whether,
the assignment is void because it related' to an unascertained claim.
This issue has, been ably argued by both sides.

It is common ground that the rules of English law in the matter
of an assignment of a chose in action as laid down by the Judicature
Act 1873, section 25 (6) are applicable to such assignments in this
country. In the application of these rules it is essential: inter alia,

• Court: Halford J.

that the assignment should be absolute and Mr. Francoudi has stressed
a dictum of Chitty to the' effect that an unascertained sum cannot be
assigned (7th Edition, page 957). He maintains that the official
receiver as receiver of the bankrupt estate has assigned to the debtor's
wife a claim for damages arising out of a contract with the defendant
which of its nature is unascertained until assessed by the court. In
the course of his argument he goes so far as to suggest that an action
for the damages may be partly assignable, that is to say that a claim
for special damages which are ascertained can be validly assigned,
while, if in addition general damages are sought, such part of the claim
is not assignable.

I have little hesitation in finding against him on this issue. Id
certum est quod certum fieri potest: i.e. that which is ascertainable
is certain; and I hold that, so long as the claim is ascertainable or
assessable, and the whole of the claim is assigned, the assignment is
absolute within the meaning of section 25 (6) of the Judicature Act
1873. I agree with the official receiver that Chitty's dictum is mis-
leading in so far as it is based on a case which he cites: Jones v.
Humphreys [1902] 1 K.B. 10, in which a charge only was assigned.
On the other hand it is clear from Huges v. Pump House Hotel Co.
Ltd. [1902] 2 K.B. 190 that, so long as the instrument of assignment
has e effect of passing the whole right and interest of 'the assignor
in the moneys, even though such moneys are ascertainable at some
future date, the assignment is good in law.

After careful consideration I have come to the conclusion that in
the circumstances of this case I must find for the defendant on the
second issue raised, namely that the debt is dischargeable by payment
to the assignee of the moneys paid by her by way of consideration to
the assignor. This is a rule of French and Egyptian Law, C.C. Art.
1699 and Egyptian Mixed Civil Code, Art. 442, and is known as re-
straint litigieux. The assignor has been adjudicated bankrupt; his assets
are barely sufficient to satisfy the preferential ,daims. His ordinary
creditors will not receive a millieme in the pound. The official receiver
has sold a claim for £E.500 damages for the sum of £E.5 to the
bankrupt's wife, who, to all intents and purposes, can only-be re-
garded as the bankrupt himself. If -the assignee succeeds in her claim,
her husband's creditors will not be provided for. In these circum-
stances I feel that it would be inequitable and unjust to allow her to
recover more than the purchase price of the assignment with interest.
and costs of the action, and in view of section 4 of the Civil Justice