- (1.) The facts of this case are fully set forth in the judgments of the trial Judge, Wallis, C.J., and of Sadasiva Aiyar and Napier, JJ., and it is unnecessary to repeat them here.
(2.) The first question argued before us is whether the transactions evidenced mainly by Exhibits B, C and D constituted an equitable assignment of the two decrees in question, by the 1st defendant who was at that time the transferee of the decrees in favour of the plaintiff. Exhibit B (dated 14th July 1909) is an agreement which provides that as soon as the amounts of the decrees are realised, the plaintiff should take Rs. 3,500 due to him by the 4th defendant The 4th defendant is the person in whose favour the decrees originally stood and who had executed two pro-notes of Rs. 1,500 each in favour of the plaintiff at the instance of the 1st defendant, who was acting as the 4th defendant's agent. The amount was to be collected by the plaintiff under Exhibit C, a power-of-attorney which was executed the day after Exhibit B. This arrangement was subsequently varied as shown by Exhibit D to this extent, that instead of the plaintiff collecting the amounts due under the decrees, the 1st defendant himself undertook to do so promising to pay the plaintiff the amounts due to him under the agreement (Exhibit B) if the money is realised, that is to say, as I read it, out of the money which might be realised under the decrees. I entertain no doubt that these facts are sufficient to create an equitable assignment of the decrees in favour of the plaintiff giving him a charge on the fund for the amount due to him. The laws succinctly stated in Halsbury's Laws of England, Volume IV, pages 376 and 377, where among the examples of transactions which have been held to amount to an equitable assignment, we find cases of an agreement between an assignor and an assignee that the debt shall be paid out of a specific fund and of an undertaking to pay over to another moneys to be received from a particular source. Some of the English cases from which these propositions are deduced are Rodick v. Gandell, 1852 1 DeGM&G 763 Riccard v. Prichard, 1855 1 K&J 277 William Brandt s. Sons & Co. v. Dunlop Rubber Company, 1905 AC 454. Such assignments by way of charge are also well recognised here. See Shair Mull v. Singaravelu Mudali, 1883 6 ILR(Mad) 294, Palaniappa v. Lakshmanan, 1893 16 ILR(Mad) 429 and Our Prasad v. Gorakhpur Bank Ltd., 0 24 IndCas 385. As stated by Lord Macnaghten in Tailby v. Official Receiver,1888 13 AC 523, the mode or form of assignment is absolutely immaterial, provided the intention of the parties is clear.
(3.) It is contended, however, by Mr. Govindaraghava Aiyar who appeared for the 2nd defendant, who obtained a transfer of the decrees in 1912, that since it has been found in a suit instituted by the plaintiff against the 4th defendant on the promissory note that the latter who was a minor at the time was liable only to the extent of Rs. 160, the plaintiff could not have a charge for more than that amount under Exhibit B. But the 1st defendant made himself liable for the entire amount pf the two promissory notes and it is that liability that is provided for in Exhibit B. The extent of the liability is expressly stated at Rs. 3,509 and the mere mention of the fact that the plaintiff mistakenly believed that the whole of the amount was payable by the 4th defendant can make no difference.;