Mohamadu V. Ahamadali

1914 Present: Wood Renton C.J. and De Sampayo A.J.

MOHAMADU v. AHAMADALI et al.

392-D. C. Badulla, 2,761.

Promissory note Assignment-Notice of assignment in writing necessary to enable assignee to sue.

The validity of the assignment of a promissory note depends on the giving express notice in writing, and the legal right to the instrument passes only from the date of such notice. The assignee of a note cannot sue the maker without such notice.

THE facts are set out in the judgment of Wood-Renton C.J.

A. St. V. Jayewardene, for appellant.

J. W. de Silva, for respondent.

Cur. adv. vult.

October 14, 1914. Wood Renton C.J.-

The plaintiff sues the defendant on a promissory note made by the defendant in favour of Palaniappa Chetty, and assigned by Palaniappa Chetty to the plaintiff. The learned District Judge has come, though with some hesitation, to a conclusion favorable to the plaintiff on the evidence, but, on the authority of the decision of this Court in Carpen Chetty v. Sammugan Tewer,1 has dismissed the action on the ground that no written notice of the assignment had been given by the plaintiff to the defendant. The plaintiff appeals.

Carpen Chetty v. Sammugan Tewer 1 is a decision by the Full Court. It is directly in point, and is therefore binding upon us. I desire to add that it is, in my opinion, sound, as well as authoritative. Section 2 of Ordinance No. 5 of 1852 provides that-

" The law to be hereafter administered in this Colony in respect of all contracts and questions arising within the same upon or relating to bills of exchange, promissory notes, and cheques, and in respect of all matters connected with any such instruments, shall be the same in respect of the said matters as would be administered in England in the like case at the corresponding period, if the contract had been entered into or if the act in respect of which any such question shall have arisen had been done in England, unless in any case other provision is or shall be made by any Ordinance now in force in this Colony or hereafter to be enacted."

1 (1883-84) 6 S. C. C. 40.

The language of this section is of the most comprehensive character. In particular, the words " all contracts and questions arising within the same relating to bills of exchange, promissory notes, and cheques, " and " all matters connected with any such

instruments, " must include an assignment of a negotiable instrument if they are to receive a natural interpretation. The only point to be determined then is, What is the law of England as to the assignment of such instruments ? The answer is supplied by section 25 (6) of the Judicature Act, 1873 1 which provides that-

" Any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor. "

The words of this section are wide enough to embrace negotiable instruments, just as those of section 2 of Ordinance No. 5 of 1852 are sufficiently comprehensive to include assignments of such instruments, and Chalmers 2 places the matter beyond doubt-

" A bill may be transferred by assignment or sale, subject to the same conditions that would be requisite in the case of an ordinary chose in action. "

Now it is. well-settled law that the requirement as to express notice in writing is a condition precedent to th

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