1907.

.ANNING

H. C. OF A. Moore v. Ulster Banking Co. (1) was before the Irish Judicature Act. The inspection of the deed by the bank's manager was sufficient notice of the assignment, equivalent to an express notice in writing: Encyclopædia of Laws, 2nd ed., vol. I., p. 357; Camp v. King (2); William Brandt's Sons & Co. v. Dunlop Rubber Co. (3); Harding v. Harding (4).

v.

ANNING.

[GRIFFITH C.J. referred to Lee v. Magrath (5).

ISAACS J. referred to Bateman v. Hunt (6).

HIGGINS J. referred to Hudson v. Fernyhough (7).]

The appointment of the appellant, who was one of the beneficiaries of the deed, as executrix of the donor's estate, completed the gift: In re Griffin (8); Strong v. Bird (9). In In re Deane; Reid v. McIntyre (10) the assignment, though voluntary and notice given after death, was held valid.

The deed is good as an equitable assignment apart from the Judicature Act 1876 (Qd.) (40 Vict. No. 6); Fortescue v. Barnett (11); no act remained to be done by the grantor: In re Griffin (8); Gason v. Rich (12); Elliott v. Elliott (13); Gilbert v. Overton (14).

It having been possible to assign debts at law before the Judicature Act, the fact that the fixed deposits are choses in action makes no difference, as choses in action may be assigned freely, the only objection being to the form of action: Master v. Miller (15); and the omission of notice is immaterial: Re Frankish (16); In re King; Sewell v. King (17); William Brandt's Sons & Co. v. Dunlop Rubber Co. (18). The assignment, being by deed, was valid at law before the Judicature Act as between the assignor and assignee, on the principle that the grantor may not derogate from his own deed: Deering v. Farrington (19); Caister v. Eccles (20); In re Patrick (21).

The mortgage debt, under the New South Wales Real Property

1907.

Act, is by the law of Queensland a simple contract debt, and, H. C. OF A. although the security would not pass because the assignment was not in the form of the New South Wales Real Property Act, yet the benefit of the covenant to pay was passed by the assignment: Payne v. Reg. (1).

[GRIFFITH C.J.—The transferees under the deed could not give a discharge for the mortgage.]

Feez in reply. The deed was not a declaration of trust, and it was imperfect as a transfer: May on Voluntary Dispositions, p.

454.

The assignment is really a bill of sale within the meaning of the Bills of Sale Act 1891 (Qd.) (55 Vict. No. 23); it was never registered, therefore even the chattels in possession did not pass, because the assignment was void until registered, and cannot now be registered. The gift was left incomplete, and the donor did not do everything that he could do and was necessary to be done: West v. West (2); Hayes v. Alliance Assurance Co. (3). Notice of the assignment can be given to the banks by the assignor or the assignee; but notice has not in fact been given: Encyclopædia of Laws, vol. IX., p. 218.

ANNING

ANNING.

Cur. adv. vult.

GRIFFITH C.J. The question for determination in this case is as to the effect to be given to an instrument under seal executed by William Anning a few days before his death, and alleged to have been made with a view to avoid payment of succession duty. The instrument, which was in form a deed poll, witnessed that Anning freely and voluntarily conveyed to his wife (the appellant) and his five infant children (the respondents) all his personal estate of whatsoever nature and wheresoever situate, including a station called Chudleigh Park, his share in another pastoral property called Mount Sturgeon, all cattle and horses thereon, and all moneys lying to his credit in three banks, to be equally divided between the donees.

In a suit in the Supreme Court of New South Wales between (1) (1902) A.C., 552.

(2) 9 L.R. Ir., 121.

May 4.

(3) 8 L.R Ir, 149.

1907.

ANNING

H. C. OF A. the same parties the question was raised whether this instrument was intended to take effect as a deed inter vivos or as a donatio mortis causâ, and A. H. Simpson, Chief Judge in Equity, upon the evidence before him took the latter view, but held that the attempted gift failed to take effect in consequence of want of delivery of possession.

v.

ANNING.

Griffith C.J.

Upon the hearing of the present action before Cooper C.J. on oral evidence, that learned Judge came to a different conclusion on the facts, and held that the deed was intended to operate as an immediate irrevocable gift. This finding of fact is not challenged, nor is it suggested that the decision of the Supreme Court of New South Wales concludes the matter as res judicata. The question for our determination, therefore, is how far the deed was effectual to pass the property in the personal estate of the donor.

The whole law on the subject is contained in the judgment of Turner L.J. in Milroy v. Lord (1):-"I take the law of this Court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may of course do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes; and if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol; but, in order to render the settlement binding, one or other of these modes must, as I understand the law of this Court, be resorted to, for there is no equity in this Court to perfect an imperfect gift. The cases I think go further to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the Court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust,

(1) 4 De G. F. & J., 264, at p. 274.

for then every imperfect instrument would be made effectual by H. C. OF A. being converted into a perfect trust."

The learned Chief Justice thought that in the present case the donor intended to constitute himself a trustee of the property, and that the deed was therefore effectual as to all the property described in it. I am unable to agree in this conclusion. It seems clear to me that the testator intended to divest himself of his legal ownership. The question therefore arises, and must be answered with respect to each class of property described in the deed, whether the donor did everything which, according to the nature of the property, was necessary to be done in order to transfer the property and make the gift binding upon himself. I think that the words "necessary to be done," as used by Turner LJ. in Milroy v. Lord (1), mean necessary to be done by the donor. Thus, in the case of shares in a company which are only transferable by an instrument of transfer lodged with the company, I think that the donor has done all that is necessary on his part as soon as he has executed the transfer. So, in the case of a gift of land held under the Acts regulating the transfer of land by registration, I think that a gift would be complete on execution of the instrument of transfer and delivery of it to the donee. If, however, anything remains to be. done by the donor, in the absence of which the donee cannot establish his title to the property as against a third person, the gift is imperfect, and in the absence of consideration the Court will not aid the donee as against the donor. But, if all that remains to be done can be done by the donee himself, so that he does not need the assistance of the Court, the gift is, I think, complete.

I proceed to apply this doctrine to the several kinds of property comprised in the deed now in question.

With regard to some of the property no difficulty arises. The Chudleigh Park Station was held under lease from the Crown, which by law was transferable by an instrument duly executed and registered in the Lands Department. Anning did not execute any such instrument. The attempted gift of this leasehold was therefore ineffectual. The same consequences follow as to certain promissory notes payable to order, which the donor

(1) 4 DeG. F. & J., 264.

1907.

ANNING

v.

ANNING.

Griffith C.J.

1907.

H. C. OF A. failed to endorse. With regard to the donor's share in the Mount Sturgeon property and the stock upon it, his interest, being equitable only, was effectually assigned by the deed.

ANNING

v.

ANNING.

Griffith C.J.

With regard to his money in the banks, some of which was on fixed deposit and some at current account, a more difficult question arises. The donor's interests in all these funds were choses in action. In Fortescue v. Barnett (1), Sir John Leach M.R., held that a voluntary assignment by deed of a policy of life assurance was valid and complete without notice to the assurance company. He put the case on the same footing as an assignment of a bond, and seems to have thought that, as all property is assignable in equity by some means or other, and as no other way of assigning a chose in action than by some writing can be suggested, an assignment by deed is sufficient. In Edwards v. Jones (2), however, Lord Cottenham C. said that the decision in Fortescue v. Barnett (1) depended upon the relationship of trustee and cestui que trust having been completely created between the assignor and assignee. He did not elaborate his reasons for taking this view, but on consideration they will, I think, be found to be these: Although a legal chose in action was not assignable at law, a Court of Equity would give effect to it by allowing the assignee to sue the debtor in his own name. As between the assignee and the debtor the absence of consideration for the assignment was immaterial. But in such a suit the assignee was bound to join the assignor as a defendant. The foundation of the jurisdiction of the Court of Equity in such a case was that the assignor would not take the necessary action at law to enable the assignee to get the benefit of the assignment. But this assumes some breach of duty on the part of the assignor, against the consequences of which the Court will relieve the assignee. In the absence of consideration for the assignment it is clear that there is no such breach of duty, unless the assignor has become a trustee for the assignee. Another way of arriving at the same result is to say that a suit by the assignee of a legal chose in action against the debtor was only an instance of the class of suits by a cestui que trust in respect of trust property when the trustee refuses to take the necessary steps for its protection. (1) 3 Myl. & K., 36. (2) 1 My. & C., 226.