Assignment of the benefit of the contract.

(f) Wood v. Griffith, 1 Swaust. 43,' 55, 50; Sug. V. & P. 356; Shaw v. Foster, L. R. 5 H. L 321, 333. 338; Tolhnrst v. Asso-ciattd Portland, etc. Ltd., 1963, A. C. 414. 420, 423.

(g) Nelthorpe v. Holgate, 1 Coll. 203; and see Crosbie v. Tooke, 1 My. & K. 431; Morgan v. Rhodes, ib. 435; Lowell v. Dew, 1 Y. & C. C. C. 345, 358; 12 L. J. (N. S.)Ch. 15S. 102, 165; Buckland v. Papil-lon, L. R. 1 Eq. 477, 2 Ch. 07; Fry, Sp. Perf. Sec. 222, 3rd ed.

(h) Browne v. Loudon Necropolis Co., 6 W. R. 188: Shaw v. Foster, L. R. 5 H. L. 321, 333, 338 - 344, 350.

(i) Stat. 30 & 37 Vict c. 06, s. 25, sub-s. 6; Turkington v. Magee, 1902, 2 K. B. 427, reversed on the facts, 1903, 1 K. B. 644; and see Dawson v. Great Northern Ry., 1905, 1 K. B.

200, 270, 271. It has been decided that where there is an absolute assignment of the chose in action in the sense of a complete transfer of the legal ownership thereof), the assignee may sue in his own name, although the assignment be made to secure the payment of money, and be subject to a proviso for redemption on such payment: Tanered v. Delagoa Bay, etc. Sail. Co., 23 Q. B. D. 239; Durham v. Robertson, 1898, 1 Q. B. 705; Hughes v. Lump House, etc. Co.. 1902, 2 K. B. 190; cf. Mercantile Bank of London v. Evans, 1899, 2 Q. B. 013; Jones v. Humphreys, 1902, 1 K. B. 10; or although the assignment be made on trust for the assignor: Comfort v. Belts, 1891, l Q. B. 737; Fitzroy v. Cave, 1905, 2 K. B. 364.

Shawv. Foster.

(k) shaw v. Foster, L. R. 5 H. L 321, 333, 338, 339, 350;

Wins. Pers. Prop. 36, 16th ed.

(l) See Torkington v. Mager.

1902, 2 K. B. 127, reversed on the facts, 1903, 1 K. B. 644.

(m) Shaw v. Foster, I.. R.

H L. 321

Of course, neither party to the contract can assign over the burthen thereof (n). It follows that when one party to the contract has assigned his interest therein he remains liable to perform his part of the contract; and the other party cannot sue the assignee, either for the specific performance or for damages for breach of the contract (o), unless he has accepted the assignee as occupying the assignor's place, in respect of the fulfilment of the contract. In this case there appears in truth to be a novation of the contract, and the assignor is not a necessary or proper party to any action thereon (p).

As to the burthen of the contract after an assignment.

If a party to the contract make no direct assignment, either legal or equitable, of his whole interest in the contract, but merely transfer by some independent act or agreement a part of the benefit which he is to derive from its performance - as if the vendor merely charge the purchase money with the payment of some smaller amount, or the purchaser agree to sell a part or to lease the whole or a part of the land sold - the transferee, being no party to the contract and being unable to assert an absolute assignment to himself of the original contractor's interest within the meaning of the Judica-ture Act of 1873, is not entitled to sue the other party to the original contract in his own name at law (q).

Transfer of part of the benefit of the contract.

(n) Tolhurst v. Associated Port-land Cement Manufacturer's, 1902, 2 K. B. 660, 668, affirmed, 1903, A. C. 414.

(o) Chadwick v. Maden, 9 Hare, 188

(p) Holden v. Hayn, l Mer. 47; Hall v. Laver, 3 Y. & C. 191.

(7) See above, p. 568; Mercantile Bunk of London v. Evans, L899, 2 Q. B. 613; Jones v. Humphreys, 1902, 1 K. B. 10. It is a question whether an absolute assignment by the vendor of part of the purchase money would enable the assignee to sue the purchaser at law; but the better opinion appears to be that it would not: see Brice v. Bannister, 3 Q. B. D. 569: Durham v. Ro-berlson bertson, 1898, 1 Q. B. 705, 769 - 775, and the two cases cited above; Skipper v. Holloway, 1909, W. N. 230, 79 L. J. K.B. 91. reversed on the facts, 1910,W. N.

But, in equity, one who has acquired from an original contractor a derivative interest in the subject-matter of a contract which is specifically enforceable, may claim, as against his grantor and the other party to the contract, to be an assignee pro tanto of the benefit of the contract, and to have the same specifically performed in his own favour accordingly. Thus, in Browne v. London Necropolis Co. (r), a vendor of land assigned a portion of the purchase money by way of mortgage, the mortgagee deposited this mortgage with another by way of sub-mortgage, and the sub-mortgagee sued the purchaser, his own mortgagor and the vendor, claiming, as against the purchaser, the specific performance of the contract. Wood, V.-C, held that the suit was maintainable in this form, considering that any person who was an assignee of the vendor might assert the vendor's rights under the agreement to purchase, and thus obtain the benefit of his charge through the medium of specific performance. The same rule appears to be applicable in the case of the acquisition by a third person from the purchaser of an estate or interest in the land sold. But to obtain such relief the person claiming it must submit to perform the original contract, so far as any duty thereby created relates to the interest acquired by him in the subject-matter of the agreement, and he must also procure the whole of the obligations undertaken by his assignor in the contract to be completely discharged (s). For a contractor cannot, by a partial any more than by a complete (t) assignment of his interest under the contract, deprive the other party to the contract of his right to have the same performed in its entirety (n); and he can only enforce specific performance by the other party on the terms of carrying out his own part of the agreement (x).

Browne v. London Necropolis Co.

71; 1910, 2 K.B. 630; Bowks v. Baker, 1910, W. N. 24, 110. 119; nom. Forster v. Baker, 1910, 2 K. B. 636.