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(1901) JELR 87181 (KB)

King's Bench  •  11 Nov 1901  •  United Kingdom



LORD ALVERSTONE C. J. I am of opinion that the judgment of the county judge in this case must be affirmed. I think there is no doubt that an absolute assignment of future debts may be a good assignment for the purpose of the section; and I also think that an absolute assignment of a definite sum out of a future debt may possibly be within the section. But I think that an assignment of an undefined portion of future debts will not come within it. To satisfy the section you must be able to find in the document an intention to assign some definite sum, so that the debtor may know how much he is justified in paying to the assignee. It was contended by Mr. Bray that to the extent of 22l. 10s. of the salary coming to Kerr after May 24 the document did purport to assign a definite sum. But I am of opinion that that is not so. The document is expressed to assign so much of Kerr’s future salary “as shall be necessary and requisite for payment to you of the sum of 22;. 10s., or of any further or other sums in which I may at any time hereafter become indebted to you”. Looking at the document as a whole, I think that it contemplates that the 22l. 10s. may not only be increased by future borrowing, but may also be reduced by payment, and that it means that the plaintiff is to be at liberty to apply Kerr’s future salary to the satisfaction of his indebtedness to the plaintiff, whatever the amount of that indebtedness may happen to be. That being so, the document is not an absolute assignment of any definite sum, but is mere security purporting to be by way of charge. Whether, if the amount of Kerr’s debt to the plaintiff had been defined, the fact that the document assigned only a portion of the salary coming from the defendant, and not the whole of it, was sufficient to prevent it from being an absolute assignment within the meaning of the section, I express no opinion.

DARLING J. I am of the same opinion. This was not an assignment of any ascertained sum. The sum which Kerr owed to the plaintiff at the time when assignment was to take effect might be only a part of what the defendant owed to Kerr, or it might be more. It is impossible to say how much was assigned. But even if the sum had been ascertained, I think, having regard to the expression of opinion by Chitty L. J. in Durham Brothers v. Robertson (1), it is extremely doubtful whether the assignment, being of part of a debt only, would come within the Act.

CHANNELL J. I agree. This is not an assignment of the entirety of a debt, not of an ascertained part of a debt. I do not think it necessary to decide the point which was left open in Durham Brothers v. Robertson (1), as to whether the assignment of part of a debt can come within the section. Here the assignment if of an unascertained part, and that, in my opinion, is not enough.

Appeal dismissed.

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