1907. ANNING 17. ANNING. Higgins J. deed-even assuming that the bank manager's casual holding of H. C. or A. the deed can be treated as knowledge on the part of the bankis not notice in writing given to the bank of the assignment. But it is said that in Courts of Equity a legal chose in action has always been treated as assignable. This is true, with limitations. Courts of Equity gave effect to contracts for the assignment of legal choses in action; but the contracts, from their very nature, were for valuable consideration. In the case of this deed there was no valuable consideration; there is not even mention of any “meritorious" consideration, such as love and affection for the family. But Courts of Equity, in their anxiety to give effect to intentions of persons owning property, have gone even further. Although the Courts of Equity do not aid incomplete voluntary gifts-do not compel a donor (or his representatives) to make complete a gift which he has left incomplete-yet if the legal title is not vested in the donor, is for instance outstanding in a trustee, and if the donor execute a deed purporting to assign his interest to a donee, the Courts will treat the gift as effectual, and insist on fulfilment. They treat the trustee as being under an obligation henceforth to hold on trust for the donee, as he had been for the donor. In such a case the assignor has done all that in him lies to divest himself of his property in the asset. The position is like that in the case of a mere equitable chose in action, and nothing remains that the donor can do personally. These exceptions to the general rule that equity will not interfere so as to compel completion of voluntary gifts have to be scanned closely before they are applied, in order that the existing confusion as to the subject may not be still worse confounded. The question here is, as to the deposit receipts, and money on current account, do they pass to the wife and children by virtue of a mere deed without valuable consideration, and without transfer of the deposit receipts, or other indicia of title? I shall deal with this question, (1) as if the Judicature Act 1876, sec. 5 (6), had not been passed; and (2) having regard to the provisions of that Act. Now, as to (1), there is no instance that I can find of a mere voluntary assignment by deed, without anything more, of a legal chose in action being treated as valid or enforceable by Courts of Equity. Equity operated on the conscience of the owner of 1907. ANNING Higgins J. H. C. OF A. property, where he received value on a contract to assign. But the theory was, that a man who forms an intention to make a gift is under no conscientious or other obligation to complete the ANNING. gift. "There is a locus poenitentur, as long as it is incomplete": Antrobus v. Smith (1). The owner may alter his intention before the gift be actually completed; and equity would not compel him to complete it. In the present case, the intending donor did not enable the donees to receive the money from the bank. He did not hand over the deposit receipt for presentation to the bank; he did not give the donees any power of attorney to receive the money or to sue the bank; and he did not even hand over the deed to any of the donees, but to his station manager, Geldring. Nor did Anning in any way deprive himself of the power to receive the money himself, for as he kept the deposit receipts he could produce them and claim payment. I shall refer to the cases presently. As for (2), the effect of the Judicature Act, it is clear that he could, ever since that Act, have made use of the provisions of that Act, so as to vest the legal title to these deposits in the donees, but he did not do so. He could have given notice, or caused notice to be given, to the bank of the assignment, and this would have operated as a complete legal transfer of the debts, but he failed to do so. He did not do everything that was in his power at the time to make the gift complete, and equity, therefore, would not compel the completion of the gift. If it be urged that sec. 5 (6) of the Judicature Act does not alter substantive rights, but merely gives an additional remedy, that is probably true. But the remedy is there, and the fact that the remedy is there, and has not been made use of, may indirectly affect the position of those who claim under deeds of gift. It is quite true that Lord Macnaghten has shown, in William Brant's Sons & Co. v. Dunlop Rubber Co. (2) that the power to make an equitable assignment still remains, notwithstanding the Judicature Act and its provisions as to assignments. The two modes of assignment exist, side by side. But what I am submitting is that the time-honoured rules as to equitable assignments should be applied; and that, according to these rules, there can be no equitable assignment if the donor has failed to (1) 12 Ves., 39, at p. 46. (2) (1905) A.C., 454. avail him whether by the OF AUSTRALIA. 1081 such powers of transfer (if any) as are given him, H. C. or A. Judicature Act or otherwise. The point is, that under the deed cannot now show that the donor has done all that lay in his power to make the gift complete; and the facts, therefore, do not bring them within the exception to the rule laid down in Ellison v. Ellison (1). This view as to the effect of the Judicature Act is confirmed by the judgment of the Court of Appeal in Ireland, in Lee v. Magrath (2), and by the distinctly expressed opinion of Hall V.C. in Bizzey v. Flight (3). It may be thought that the fact of the instrument of assignment being under seal might supply the lack of valuable consideration; but the remarks of Lord Justice Knight Bruce, in Kekewich v. Manning (4) disposes of this view. For it is shown there that although Courts of Equity give full effect to the legal doctrine as to the seal supplying the lack of valuable consideration, they do not, in applying their own peculiar doctrine as to imperfect gifts, treat deeds executed without valuable consideration as if they had been executed for valuable consideration. (See also per Lord Eldon in Ellison v. Ellison (1); In re Earl of Lucan: Hardinge v. Cobden (5). As might be expected with a class of transactions so numerous and rules so technical, the cases are puzzling. In Fortescue v. Barnett (6) there was a voluntary assignment by deed of a policy of assurance on a life, and the Court gave effect to the gift as between the donees and the representatives of the donor. But, as Lord Cottenham L.C. pointed out in Edwards v. Jones (7), that case was decided on the ground-whether right or wrong does not concern us now-that by the contract with the assurance company the policy was assignable. The deed was treated as transferring completely the title. See the comments in Bizzey v. Flight (3). In Donaldson v. Donaldson (8) the equitable owner of stock, which stood in the names of trustees, executed a voluntary assignment by deed. This transaction was enforced, for a reason which I have previously mentioned, that the assignor had done all that · 1907. ANNING ANNING. Higgins J. 70 1907. ANNING v. ANNING. Higgins J. H. C. OF A. he personally could do towards passing the property. Sometimes, as in Milroy v. Lord (1) the Courts use such expressions as that the donor has done, or not done, all that was necessary to be done." But the word so used obviously means, not necessary in the sense of obligatory on the donor, but necessary for the purpose of passing the property. Turner L.J. explains the words by adding the phrase "according to the nature of the property." The donor is under no necessity, no obligation; he is under no duty to do more than he has done. What the Courts look at is what the donor might have done. This point has been put so fully in the judgment of Mr. Justice Isaacs that I need not deal with it further. The case of Walker v. Bradford Old Bank (2) is very close to the point. By a deed, all moneys then-in 1881or thereafter standing to the credit of the assignor at a bank were purported to be assigned. After the death of the assignor, notice in writing was given to the bank; and such notice was held to satisfy the Judicature Act. This was sufficient to give the legal title to the assignee; but the Court also seems to have thought that, apart from the Judicature Act, there was a good equit able assignment. However, the explanation of this dictum seems to lie in the fact that it was a future debt which was assigned and claimed; and that, on the principle of Holroyd v. Marshall (3) the future debt was property cognizable in Courts of Equity; and, as already stated, an equitable chose in action can always be assigned by mere deed. The case of In re Patrick; Bills v. Tatham (4), is strongly urged in favour of the validity of this gift. On 11th August 1873, Patrick assigned to trustees debts owing on certain securities, with power to sue and receive, and power to enforce the securities. Patrick received the debts before his death in 1888, and it was held that his estate was liable to the trustees, because the gift was as complete as the donor could at the time have made it. But as to this case, it has to be noticed (i.) that the assignment took place before the Judicature Act came into force, and before the provisions of that Act were available for the purpose of making perfect the assignment of a legal chose in action; and the Act is (1) 4 DeG. F. & J., 264. (2) 12 Q.B.D., 511. (3) 10 H.L.C., 191. 1907. ANNING v. ANNING. Higgins J. not retrospective (In re Joseph Suche & Co. (1); Sherwin v. Selkirk H. C. or A. (2); Annual Practice, 1996, vol. II., 436); and (ii.) that the assignor, by the power of attorney, put it completely in the power of the trustees to receive the debt, and to enforce the securities. In In re Griffin (3), a deposit receipt, endorsed "pay my son," was handed to the son-who also became the executor. The deceased had put it out of his own power to receive payment himself; and it was found by the Judge that the bank would have paid the money on production of the receipt so endorsed. Besides, the appointment of the defendant as executor completed the title, and enabled the defendant to sue the bank as the legal owner. As for the case of Aulton v. Atkins (4), and the case of Gerard v. Lewis (5), which substantially follows it, I cannot see how they are relevant to the present question. Aulton v. Atkins (4), was a decision on demurrer; and for the purpose of the demurrer it had to be assumed that the property in the document itself a bill of exchange- had passed, and for value received; and the defendant was treated as liable under an implied covenant not to do anything in derogation of his assignment of the document. Here, we have no question of covenant; there has been no value given; and the question is simply one of title. I may add that I cannot admit that the property in the deposit receipts-the paper documents-passed under this deed of Anning's. What Anning wanted to assign was the right to get the money-not the paper. The right to the paper is merely incidental to the right to the money-not the right of the money to the paper. As regards title deeds to real estate, it has even been laid down that title deeds are not chattels; and that they pass by conveyance of the land, without being named: Copinger, Title Deeds, p. 2. If there were a will devising real estate to A., and all the personalty to B., I should have no hesitation in ruling that the title deeds to the real estate pass to A. Whatever may be thought about the refinements of distinction on which these cases turn, there is no authority for saying that where there are mere words of voluntary assignment as to a |