Hyndman-Jones CJ:

The Plaintiff claims from the Defendants as Executors of the late Seah Song Seah the sum of $5,000 with interest at the rate of 8 0.000000rom 25 April 1911 the date on which the amount became payable till payment or judgment. The Plaintiff claims as assignee of the debt from one Seah Jim Huat.

The facts are simple. Seah Song Seah on 22 April 1910, appears to have signed eight documents in the shape of Promissory Notes in favour of Seah Jim Huat. These documents were put in, and one of them evidences the amount now claimed. Seah Song Seah shortly afterwards died, and Seah Jim Huat by a Memorandum of Agreement dated 3 April 1911, assigned six of these Promissory Notes which had not been paid "together with all sums of money due or to become due thereunder or by virtue thereof respectively" to the Plaintiff in consideration of the sum of $27,675 thereupon paid to Seah Jim Huat by the Plaintiff.

The points taken on behalf of the Defendants were, first, that owing to the introduction of the word "personally" in the promissory note Seah Jim Huat had no right or power to assign: secondly, that if he had that right or power the Assignment was not absolute: thirdly, that the payment of the notes was subject to the conditions set out in paras. 5, 6, 7, 8 and 9 of the Statement of Defence; while, in answer to paras. 3, 4 and 8 of the Reply and Defence to Counterclaim, the Defendants contended that the circumstances disclosed therein worked not estoppel. The Defendants further counterclaimed for a return of the six Promissory Notes, a claim which their Counsel abandoned at the hearing, substituting for it, a claim for a declaration that the notes are not assignable and should be retained in Court.

With regard to the third point I may say at once that in my opinion the Indian case cited Ramjeebun Serowgy v. Oghur Nath, 2 Cal WN 188, and the case of Foster v. Jolly, 4 LJ (NS) EX 65, conclude the matter. As Lord Abinger CB, said in the latter case:- "The maker of the note payable on a day certain cannot be allowed to say" I only meant to pay you on a contingency "that is at variance with his own written contract."

With regard to the first point, it was urged by the plaintiff's Counsel that there is a distinction between negotiating a Promissory Note which by its terms is non-negotiable and assigning a debt of which that Promissory Note is merely the evidence. In this case Seah Jim Huat had been co.-owner with Seah Song Seah of some Land in Muar and there was owing to him by Seah Song Seah $43,000 for his share in the land; it was in respect of this $43,000 that this and the other Promissory Notes were given.

A Bill drawn "pay A" or a note drawn "I promise to pay A" is negotiable although it does not contain the words "or order" Eddie v. East India Co. [1761] 12 Burr: 1216 and See Bills of Exchange Act 1882, s. 8(4) unless indeed the bill or note contains words prohibiting transfer: in this case the word "personally" was relied on as indicating that the note was not negotiable, and no doubt that word does make it non-negotiable in the sense that Seah Jim Huat was precluded from exercising the rights he would have had under the Act or according to the law merchant.

It was contended however that this left untouched his right to transfer the debt, see s. 38 of the Bills of Exchange Act 1882, and Mr. Chalmers' commentary under that Section, viz: "Transmission by Act of Law," and r. 6 thereunder.

As against that contention Mr. Koek cited the cases of Davies v. Davies, 36 Ch Div 359, and Tolhurst v. The Associated Portland Cement Manufacturers, Ltd. and The Imperial Portland Cement Co. Ltd. [1903] App Cases 414 and urged that in each of these cases the contracts were held to be assignable or not according to whether the parties by what they had expressed and in view of the surrounding circumstances, had intended that the contract should be personal or otherwise. In Davies v. Davies at p. 394 of of the report Bowen