Assignment-Formality-Recording of assignment in court records
Assignment-Judgement debt-Notice to debtor omitted-Equitable assignment
defeating assignors receiver in bankruptcy

Bankruptcy-Vesting of property in receiver-Receiver defeated by assignment
or judgement debt due to bankrupt

Execution-Assignment of judgement debt in satisfaction another judgement .

   Plaintiff obtained a judgement against Dimitri Georgiou and pressed for

execution of the judgement debt. Dimitri Georgiou applied to the court,
plaintiff being present, to assign to plaintiff in part-satisfaction of the judge-
ment debt a judgement debt which Dimitri Georgiou himself had against
R. & 1<.. Plaintiff agreed before the court 'to accept this assignment "for
what it is worth," in part-satisfaction, and this agreement was approved and

• Court: Dun C.J., Peacock and Williamson JJ.

recorded by the court. A note of the assignment was made on the record
of Dimitri Georgiou's execution against R. & K, but no further steps were
taken ih that execution, and no notice of the assignment was given to
R.&K.

On a petition for bankruptcy being presented against Dimitri Georgiou,
defendant claimed Dimitri Georgiou's judgement debt from R. & K. Plain-
tiff brought the present action against defendant for a declaration that he,
and not defendant, was entitled to the judgement debt of Dimitri Georgiou

               against R. & K.                                                  

In the High Court it was held by Bell J. that there had not been
a complete assignment "to the plaintiff which would give plaintiff preference
over the receiver in bankruptcy. From this decision plaintiff appealed.

Held: (i) Where a debt has been validly assigned, the assignee is en-
titled to receive the debt as against the assignor's receiver in bankruptcy
if the assignor subsequently becomes bankrupt.

(ii) The fact that notice of an assignment of a debt is not given to
the debtor does not prevent the assignment from being complete and valid,
so thavfhe assignee gets a title to the debt as against the assignor and
the assignor's subsequent receiver in bankruptcy.

In re Patrick [1891] 1 Ch. 82 referred to in argument.

Mercantile Bank of 'London v. Evans [1889] 2 Q.B. 613 referred to in
argument.

Bankruptcy Ordinance 1916, ss. 13, 28.

Action

May 25, 1924. Bell J.: The facts are as follows: Kyriazi is
judgement creditor of Dimitri Georgiou in HC-EX-63-1923 for a sum
of £E.477.523 m/ms. He applied 'for execution inJuly 1923. The
debtor offered to pay instalments. The creditor refused, and on Sep-
tember 15, 1923, the court ordered the sale of certain property. On
October 20, 1923, the parties appeared before the court. The debtor
applied to assign his rights in HC-EX-74-1923 to the creditor. The
creditor agreed and accepted the assignment "for what" is is worth."
On December 20, 1923, the creditor applied saying that no payment
had been made. An order for the sale of the property seized was
made.

In HC-EX-74-1923, Dimitri Georgiou is judgement creditor of
Russos & Karagoris for-: £E.529.060 m/ms. Execution was applied

 for on October 8, 19~. There is a note in the record of the execution,

dated October 20,1923, "see HC-EX-63-1923 for assignment of this
debt in part payment of execution debt in HC-EX-63-1923." Nothing,
further was done in HC-EX-74-1923 until after the presentation of
the petition fi}r bankruptcy of Dimitri Georgiou.

Kyriazi gave no notice to Russos and Karagoris, and they in fact
alleged that they had paid off the execution debt by payments to an-
other creditor of Dimitri Georgiou by his order. .Tt has been decided .
that these payments by Russos and Karagoris to the other credit were
not a good discharge of their liability to Dimitri Georgiou.

The question now for decision is whether K yriazi is entitled to. the

judgement debt in HC-EX-74-1923, or whether this debt should be
paid to the receiver for distribution amongst the creditors of whom

      Kyriazi is one.'                                                                            

I am of the opinion that there was no assignment which can avail
against the receiver. The transaction was merely a licence to Kyriazi
to receive a debt due to Dimitri Georgiou. Kyriazi could enforce it
through the court by attachment, and he is in no better position than
if he had formally attached the debt. . What formalities are requisite
for a proper assignment of a debt in this country it is difficult to say,
but I am quite clear that it would be against the whole spirit of the
bankruptcy law to treat this transaction as an assignment which would
prevail against the receiver. -

That Kyriazi did not consider the transaction ali. absolute assign:"
ment is shown by the words in which he accepted it, and, by 'the fact
that he subsequently attempted to get the money out of Dimitri Geor-

      giou by sale of 'his property.                                                  

The claim of Kyriazi is' therefore dismissed and it, is declared

that the receiver is entitled to the judg₇ment debt in HC-EX-74-1923.

, Judgement for defendant
From the above judgement plaintiff then: appealed to the Court
of Appeal, claiming that the agreement between himself and Dimitri
Georgiou had amounted to an assignment.

Appeal

Advocate: Mr. Francoudis : . For appellant; The Official Re-
ceiver appeared in person.

Mr. Francoudis: The only thing necessary to constitute an as-
signment is the consent of the parties, i.e., the assignor and assignee.
Notice to the debtor is not necessary; it is only necessary to enable
the assignee to get payment. The position in English law is as follows.
At common law the assignee could never sue in his own name.
T ouity permitted assignments, but the assignment would not bind the

. debtor until he received notice; In re Patrick [189~] 1 Ch. 82. The
Judicature Act 1873, s.25 (6), requires certain' formalities for a legal
assignment, e.g., the assignee takes subject to existing equities, the
assignment must be absolute, of the whole debt and not by way of
charge, must be in writing, and express notice in writin~ must be
given to the debtor. The assignee's title dates from the giving of
notice to the debtor. But the mode of assignment under the Judicature
Act is additional to the old mode of assignment at equity.

The requirement of writing is, in any event, met in the present
case by the written record of the agreement made by the court, and
there is also the letter written by DiIIiitri Georgiou asking the court
to approve the agreement. The writing of the court in HC-EX-74-
1923 referring to the agreement recorded in HC-EX-63-1923 is ex-
press written notice to the debtor, who was the defendant in HC-

           EX-74-1923.                                                                                                           .

H this is not a legal assignment under the Judicature Act, it is at
least an equitable assignment. I do not know what the English courts
have decided as between an equitable assignee and the receiver in
bankruptcy of the assignor.

An assignment "for what it is worth" is a valid assignment.' The
words mean that no specified value is put on the debt assigned, but it is
not necessary to a valid assignment that the debt assigned should have
a specified value.

The Official Receiver, Mr. Gerrard: Plaintiff, after the alleged
assignment, proceeded with the sale of D.G.'s property, and took no
action to get in the debt in HC-EX-74-1923 until a petition in bank-
ruptcy was presented against D.G. This indicated that plaintiff had
returned to his principal remedy and waived the alleged assignment,
i.e., there was a reassignment in any event.

At the time qf the alleged assignment, R & K, the debtors, had a
claim before the court that they had already paid part of the debt on
D.G's instructions. Therefore, it was not known by D.G. precisely
what was sfill owing to him, therefore his assignment' to plaintiff
could no(be absolute of the whole debt, but was in the nature of the

 creation of a charge over a debt, which cannot be a valid assignment;

M~antile Bank v~ Evans [1899] 2 Q.B. 613.

No notice of the alleged assignment was ever given to the debtor,
nor was any action taken against him by the assignee before the present
disnute arose.

My earlier position was that this was an attachment, not an
assignment, and therefore did not prevail against me in view of Bank-
ruptcy Ordinance 1916, s. 28.¹ I have now changed my view and say
. that any rights against debtors which a bankrupt has or had are prop-
erty within the meaning of Bankruptcy Ordinance s. 13.² .An assign-
ment, if valid, would o~rate. to extinguish the debt.

Mr.i.Francoudis, in reply: The Official Receiver states that' the
plaintiff returned to his principal remedy and thereby waived the as-
signment. In fact the sale of the kilns of Dimitri. Georgiou was
ordered a month before the assignment, and the kilns remained under'
seizure throughout. Plaintiff has never abandoned his assignment,
nor has he abandoned his seizure, and he js entitled to prpceed with

        both remedies.                                              .

December 16, 1924. Peacock J.: It appears to me that-the deci-
sion must turn on our determination' whether the agreement between
Dimitri Kyriazi and Dimitri Georgiou was or was not an assignment
by Dimitri Georgiou of his rights under HC-EX-74-1923. If it was
an assignment the receiver is not entitled under section 28 of the Bank-
ruptcy Ordinance 1916,to the amount realized; but if, as the learned
judge in the court below has held, it was not an assignment, the' re-
ceiver is entitled to treat- the transaction as insufficient to' defeat the
rights of creditors in the Bankruptcy of Dimitri Georgiou.

On the affairs of Dimitri Georgiou coming into the Bankruptcy
Court the Official Receiver on February 23 made the following appli-
cation to the court that HC-EX-74-1923 should proceed, and he makes
use of the following words: ('I beg to inform the court that the rights' of
the above execution were assigned to Dimitri Kyriazi by letter dated
October 20, 1923, to satisfy his judgment debt in HC-CS-132-1923, ex-
ecution HC-EX-63-1923. In virtue of section 28 of the Bankruptcy
Ordinance 19Jj(, I have 'informed Mr. Francoudi (as. advocate for
Mr. D. Kyr~) that I propose to treat such assignment as null and
void and tc(proceed with the execution." The court ordered that exe-
cution ,Ioceed without prejudice to the rights ~f Dimitri Kyriazi. .

. .1)1 do not propose to lay too much stress on the fact that the 0ftJ-
c: Receiver makes use of the word "assignment," but I propose to, ex'

        " ine the transaction itself.                                                                              

.1 Section 28 of Bankruptcy Ordinance 1916 was substantially re-enacted 81

          se~'on 47 of Bankruptcy Ordinance 1929.                

• Section 13 of Bankruptcy Ordinance 1916 w~ substantially re-enacted ••

          secti n 23 of Bankruptcy Ordinance 1929.                 

Dimitri Kyriazi had a judgmen't against Dimitri Georgiou and was
pressing for payment. He applied for execution, HC-EX-63-1923.
Dimitri Georgiouon October 20, 1923, applied to the court to transfer
his rights in HC-EX-74-:-1923 in part payment of the debt. Dimitri
Kyriazi and Dimitri Georgiou were both present in court and the judge
records "Kyriazi agrees to this and accepts the assignment in part pay-
ment-for what it is worth. He will carry on HC-EX-74-1923 for
judgment debtor in this. execution and the amount realized will be de-

. ducted from his judgment in this execution. Kyriazi says he agrees to
have the sale of the Berber property, stayed for the present, but sei-
zure to stand."

This record of the learned judge appears to me to contain as be-
tween the parties all the elements of a complete and operative assign-
ment-e-the one party gave up and the other party took over all right
or interest in the execution HC-EX-74-1923 for valuable considera-
tion-the form adopted was one which parties to a transaction fre-
quently adopt when they wish to be certain that it will be recognised by
the courts: they both went to the court for the purpose of the court
recording the agreement and the court recorded the agreement.

It is suggested that the fact that notice was not given to the judg-
ment debtor in HC-EX-74-1923 renders the operation incomplete.
There is ample authority for declaring that under English' law the
agreement as between the parties is complete and operates as an as-
signment of all rights and interest under the execution. I am unable to
agree that the transaction was a mere licence to Kyriazi to receive a
debt due/to Dimitri Georgiou and am of the opinion that the appeal
must be allowed.

Williamson J.: I agree that the appeal should be allowed. The
record made by the court is sufficient to establish a complete assign-
ment of the judgment debt in HC-EX-74-1923, and to record such an
assignment before the Court appears to me to be a 'reasonable and
convenient means of legalising it.

In the Mohammedan Court certain transactions are recorded in a
similar though somewhat more formal manner.

The English cases clearly show that an assignment without notice
to the debtor is a valid assignment as against the assignor, or the re-
ceiver in bankruptcy of, the assignor, although notice would be neces-

sary to enable an assignment to prevail against a subsequent assignee.
I think this rule .can be applied with justice in the present case.

Appeal allowed

Editorial Note. The assignment found by the Court of Appeal in the above
case is probably best regarded as an equitable assignment, since there was no
Sudanese statute which defined a legal assignment at the time of the decision
and the English Statutory definition of a legal assignment (now reenacted 88
section 136 of the English Law of Property Act 1925) required notice to the
debtor to make the assignment valid.

A legal assignment of a chose in action has now been statutorily defined in
the Sudan by Civil Justice Ordinance 1929, s. 8.

The dictum of Williamson J. in the above case, that ". • • notice would be
necessary to enable an assignment to prevail against a subsequent assignee.";
would need some qualification if, as seems probable, the learned judge was in-
tending to refer to the rule in Dearie v. Hall (1828) 3 Russ. 1. It is true,
under that rule, that an assignment without notice to the debtor (which would
necessarily be an equitable assignment) would not prevail against a later as-
signee, whether of a legal or equitable assignment, who had given notice to the
debtor in good faith of his assignment. But an assignment without notice to the
debtor will prevail against a subsequent equitable assignment which is also with-
out notice· to the debtor; or even against a subsequent equitable assignment
with notice to the debtor where the subsequent assignee knew of the first

        assignment at the time he took his assignment.             .

(IDGH COURT)·

IBRAHIM BABIKER KAROUM, Appellant-Plaintiff v.

MOHAMMED BILAL KABBASH, Respondent-Defendant
HC-APP-4-1925

Common Carrier-Damage to goods-Goods set 00 boat to lighten the ioad-
Damage by rain-Negligence of consignor-Local trade customs-English
law

Contract-Carriage of goods-s-River boat transport-Goods set 00 by order-
Damage by rain-Who liable

Under a written contract the respondent agreed to carry for the appel-
lant. 40 parcels of gamsha from Roseires to Medani by boat. When the
respondent got to Mukwar, south of the Mukwar Dam, he considered it
dangerous to travel along the Sudd with a heavy load of cargo. He there-
fore unloaded the gamsha and sent it across by cart to a village north of
the Dam and wired the appellant about the action taken. The gamsha ar-
rived at the village before the respondent did, and was left on the river
bank where it was damaged by rain. The district judge apportioned the

• Court: N. G. Davidson J.

damages, finding the carrier negligent, but the consignor also negligent in
not providing covers against the rain. The consignor appealed.

Held: (i) There was no basis for apportioning the damages as the
_ negligence of the consignor was a eomplete defence to an action against
the carrier and was in this case a proximate cause of the damage.

(ii) The finding of negligence on the part of the carrier was against the
weight of the evidence.

Glover v. London and South Western Ry. (1867) L.R. 3 Q.B. 25, approved.

Appeal

Advocates: Mr. Claxton ... for appellant; Mr. Francoudi
for 'respondent

-February 23, 1926. Nigel Davidson J.: I have come to the con-
clusion that this appeal must be dismissed with costs.

The claim by the plaintiff who is now appealing is for £E.30.890
m/ms, being the agreed damages caused by - rain to 40 parcels of
gamsha while deposited on the river bank at Kabbosh North of the
Mukwar Dam. The defendant was under contract to convey these
goods and others by boat from Roseires to Medani. The contract be--
tween the parties is in writing. On arrival at Mukwar, South of the
Dam, the defendant 'considered it dangerous to pass the Sudd without
lightening his boat and he stated on oath that the District Commissioner
ordered him to unload his cargo. He did and sent it accross by cart to
Kabbosh, telegraphing at the same time to warn the plaintiff of his
action. This telegram did not teach the plaintiff. The defendant's
boat then got safely round, but meanwhile rain had fallen and the goods
at Kabbosh were damaged.

The plaintiff in the first instance claimed damages on the simple
ground that the defendant was liable for damage caused by rain, in
other words, that he was an insurer under the contract of carnage.

The defendant pleaded a custom of merchants and shippers in that
part of the country that such a contract as the one between him and
the plaintiff did not render the carrier liable for damage by rain,
but only for loss or shortage on delivery. As a consequence of this, the
custom also laid on the consignor of the goods the duty of providing

        covers against rain during the kharif.                                                   .

In answer to this contention a further point was taken by the
plaintiff, that the damage was, caused by the landing of the goods at

Mukwar and that the defendant had no right to do this withouttlie_
plaintiff's authority.

The learned judge decided the c~ii these two issues. On the
first, namely the interpretation of tile contract, he held the custom to
be proved, namely, that it was the duty of the plaintiffto provide ade-
quate cover for the goods, and further found as a fact that the defend-
ant had both at Roseires and at a spot lower down the river called on
the plaintiff to supply protective' covers for his gamsha. He therefore
found the first issue in favour of the defendant.

On the second issue, which was stated in general terms: "Did the
defendant take reasonable care of the goods during transit?" the
learned judge found in favour of the plaintiff in the following terms:

"I am satisfied however that if the goods had remained on
board, damage in all probability would not have ensued, and that
the defendant should not have discharged- the 'ghamsha' at' Ge-
miza, taken them by cart to Kabbosh, and then stacked them on
the river bank without obtaining the previous permission and con-
sent of the plaintiff or his duly. appointed representative, and that
by so doing he has in part contributed to' the damage they sus-
tained. Although, therefore, I find for the defendant on the first
issue, my finding is against him on the second."

He thereupon held that the damages should be divided and he
_ gave judgment to the plaintiff for half the assessed damages,

Learned counsel for the appellant does not question the findings 'of
the learned judge nor is he concerned to show that the decision is not
a just one on the merits. He relies on the purely legal principle that
where the defendant's negligence is the proximate cause ,of the dam-
age, contributory negligence by the plaintiff cannot be admitted in re-
duction of the damages so caused. He relies on the finding "that if
the goods had remained on board, damage, in all probability, would
not have ensued" as showing that the wrongful landing of the goods
was the proximate cause of the damage; and he contends that the plain-
tifI's wrongful omission to provide covers against rain was merely con-
tributory and therefore ought not to have been admitted in reduction of
damages.

In support of his contention Mr. Claxton cites the cases referred
t.9"and explained on pages 66 and 69 of Mayne on Damages (2nd ¢i-
,tion). I am not disposed to question the principle he deduces that
contributory negligence by the plaintiff cannot be admitted. in reduction

of damages, provided that the converse principle, in support of which
most of the cases are cited, is also taken into consideration, namely that
negligence by the. plaintiff which contributes to the damages may debar
him from recovering any damages at all for the negligence of the de-
fendant.

For this reason I regret that the respondent was not advised to en-
ter a cross-appeal, claiming judgement for the defendant. There would
then have been a clear issue, as to whether the plaintiff's negligent
omission to provide covers did or did not debar him from recovering
damages. However equitable in the particular circumstances the halv-
ing of the damages may be, I find it rather difficult to support in
principle.

It is only fair to Mr. Francoudi to say that owing to the difficulty
in serving a wandering rais like the respondent he was only briefed
at the last moment and it may be that his client was satisfied with the
judgement as being to his untutored mind, just. At all events, though
he cannot make use of the argument that the plaintiff's negligence en-
titles him to judgement, he is entitled to use it in opposing the ap-
pellant's claim to increased damages.

Approaching the case from this point of view, I have come to the
conclusion that even on the finding of the judge the plaintiff is not
legally entitled to recover damages.

As I have said above, Mr. Claxton relies on the judge's words
"that if the goods had remained on board, damage in all probability
would not have ensued" as amounting to a finding that the' discharge
of the goods was the proximate cause of the damage and the plaintiff's
failure covers merely contributory negligence.

That is certainly not what the judge said, and in my opinion it is
not what he meant. This is what he says and the order in which. he
says it:

"The damage admittedly was caused by rain. Did the con-
tract absolve defendant froni damage to the goods arising from
rain?"

In answering this question in the affirmative he says: "I also find
that it was the duty of the plaintiff to provide adequate protection."

. Then comes the paragraph relied on by Mr. Claxton which con-
cludes with these words: "By so doing (i.e., by discharging the goods

without the consent of the plaintiff) he (the defendant) has in part
contributed to the damage they sustained."

In view of the order adopted by the judge, and the last explicit
words, his finding was intended to be:

"The damage was caused by rain, and plaintiff's omission
of his duty to provide cover. But the defendant's action in re-
moving the goods from the boat, where in all probability they
would have escaped, contributed to the damage but was not the
first cause. The first cause was rain plus absence of cover.

On such a. finding it seems to me that the cases cited in Mayne
would entitle the defendant to judgement. Take for example Glover v.
London & South Western Ry. (1867) L.R. 3 Q.B. 25, the facts of
which are stated by Mayne at the top of page 66. If you substitute
the wrongful removal of the goods in this case for the wrongful re-
moval of the plaintiff in that, the cases are on all fours; Mr. Glover
was negligent in leaving his glasses unprotected in the carriage; the
plaintiff was negligent in consigning his goods without protection
against rain; Mr. Glover would in all probability not have lost his
glasses if they had not been wrongfully removed, yet he was debarred
from recovering damages. Similarly here, even though the goods would
in all probability have escaped damage if they had not been dis-
charged, the plaintiff who had been negligent in not providing protec-
tion should not be entitled to damages.

In case this appeal should be taken further, I desire to add that
if it had been necessary I should have been prepared to hold that the
finding of the learned judge that "the defendant should not have dis-
charged the gamsha at Gemeiza, taken them by carto Kabbosh, and
there stacked them o'n the river bank without the previous permission
of the plaintiff or his duly appointed representative" is wrong and
against the weight of all the evidence. The evidence is that owing
to the state of the river several boats were held up; that it was dan-
gerous for- heavily laden boats to pass the Sudd; that the District Com-
missioner ordered the defendant- not to do so; and that he not only
discharged the goods and arranged to transport them by land in the
interest of the plaintiff as much as of himself, but that he took the only
step he could to inform the plaintiff. I cannot see what else he could
have done. It would have been negligent and wicked to have risked
the loss by going on. On the other hand it was in everybody's interest
that he should get on before the heavy rains set in. In my opinion he
was justified in presuming the consent of the consignor.