It will be observed that an assignment of a chose in action under the statute is not effective until express notice in writing is given to the debtor (z). Notice to the debtor is not, however, essential to the validity of an equitable assignment as between the assignor and the assignee (a), and an assignment which does not comply with the statute may nevertheless be a good equitable assignment (b). Formerly the rule was that an equitable assignee must sue in the name of the assignor, but in modern practice it is customary for the assignee to sue in his own name, joining the assignor as co-plaintiff or as a defendant, and recently in England the highest courts have shown a tendency to dispense altogether with the assignor's presence in cases where his interest in the subject matter has ceased and his presence is not necessary for the protection of the debtor (c). In Ontario it is expressly provided by rule 85 that an assignee of a chose in action may sue in respect of it without making the assignor a party (d), and the rule enables an equitable assignee to sue in his own name where the assignment is of the whole fund and no beneficial interest is left in the assignor (e).

(x) Re Bland and Mohun, 1913, 30 O.L.R. 100, 16 D.L.R. 716; Hughes v. Pump House Hotel Co., [1902] 2 K.B. 190; Mercantile Bank of London v. Evans, [1899] 2 Q.B. 613; Sovereign Bank v. International Portland Cement Co., 1907, 14 O.L.R. 511.

(y) Stothers v. Borrowman, 1916, 38 O.L.R. 12, 33 D.L.R. 179.

(z) R.S.O. 1914, c. 109, s. 49, quoted in Sec. 102. See Pringle v. Hutson, 1909, 19 O.L.R. 652.

(a) Gorringe v. Irwell India Rubber and Gutta Percba Works, 1886, 34 Ch.D. 128; Rennie v. Quebec Bank, 1901, 1 O.L.R. 303.

(b) Sovereign Bank v. International Portland Cement Co., 1907, 14 O.LR. 511 (no notice to the debtor); Trusts Corporation of Ontario v Rider, 1897, 27 O.R. 593, 24 O.A.R. 157 (oral assignment).

It is nevertheless advisable that notice of the assignment of a mortgage should be given to the mortgagor in order to prevent his making subsequent payments to the mortgagee on account of the mortgage or to prevent subsequent dealings between the mortgagor and the mortgagee which may affect the account.

If the mortgagor, without notice of the assignment, satisfies the mortgage in whole or in part by payments to the original mortgagee (f) or has dealings with the mortgagee which affect the mortgage account (g), the assignee will take subject to such payments or dealings. The mere registration of the assignment of the mortgage will not operate as notice to the mortgagor, because registration operates as notice only to persons subsequently acquiring an interest in the land (h).

(c) Maitland, Equity and the Forms of Action, p. 148; Tolhurst v. Associated Cement Manufacturers, [1903] A.C. 414, at pp. 420, 424; Brandt's Sons & Co. v. Dunlop Rubber Co., [1905] A.C. 454, at p. 462; Graham v. Crouchman, 1917, 41 O.L.R. 22, 39 D.L.R. 284.

(d) This rule was originally derived from the former general orders of the Court of Chancery.

(e) Graham v. Crouchman, supra; cf. Neveren v. Wright, 1917, 39 O.L.R. 397, 36 D.L.R. 734.

(f) Engerson v. Smith, 1862, 9 Gr. 16; Wilson v. Kyle, 1880, 28 Gr. 104; Turner v. Smith, [1901] 1 Ch. 213, and cases cited at pp. 219-220.

(g) Baskerville v. Otterson, 1873, 20 Gr. 379.