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evidence of its being in his reputed ownership, possession by

§ 44. a trustee is no evidence whatsoever of trust property being by the consent of the cestui que trust in the reputed ownership of the bankrupt trustee, because so long as the trustee deals with the trust property in a manner consistent with the trusts the cestui que trust has no right even in equity to disturb his possession, and therefore cannot be said to consent to it. In other words, it is only when the cestui que trust permits the trustee to deal with the trust property in a manner inconsistent with the trust that there is evidence that the cestui que trust consents to the trustee disposing of the trust property as the reputed owner. But there are in the books many cases where cestuis que trust have by permitting the trustee to deal with the trust property in a manner inconsistent with the trusts brought the trust property into the reputed ownership of a bankrupt trustee : thus in Ex p. Grainger, 24 L. T. 334, a wife was held to have so dealt with her separate estate as to make it in the reputed ownership of her husband on his bankruptcy, and the creditors of a deceased person may, by suffering his personal representative to dismiss the representative character and assume that of an absolute owner, render the estate of the deceased person on the bankruptcy of the personal representative distributable among his creditors as being in his order and disposition as reputed owner. (Kitchen v. lóbetson, L. R. 17 Eq. 46; Fox v. Fisher, 3 B. & A. 135; Williams on Executors, 8th ed. 644.)

In the second class of trusts, i.e., trusts created by the Trusts created bankrupt where the bankrupt has by his express contract, or by the bankby his conduct, given to others an equitable interest in pro

rupt. perty the legal title to which is vested in him, it has already been pointed out that unless at the time of the bankruptcy the bankrupt has no beneficial interest whatsoever, the legal interest in the property will pass to the trustee in bankruptcy, ante, p. 165. The most difficult questions which arise with reference to this class of trust property relate not so much to the question whether the trust is a bare trust, so that not even a legal interest will pass to the trustee in bankruptcy, but rather whether a trust or equitable interest has been created at all available against the trustee in bankruptcy. Sometimes a trust is plainly enough created by declaration of trust, express contract, or otherwise, but often, especially in the case of what are called specific appropriations, very difficult questions arise as to whether or not a trust available against the trustee in bankruptcy has been created.

Now the property in respect of which it is alleged that the Specific aptrust or specific appropriation has been created may be pro- propriations, perty either (1) in the hands of the person in whose favour

§ 44.

(2) of pro

the trust or appropriation has been made, or (2) in the hands of an agent of the bankrupt, or (3) in the hands of the bank

rupt himself. (1) of pro

The first of these cases seems not to differ materially from perty in the

a case of specific lien. In the second of these cases, i.e., possession of the appro

where goods are in the hands of an agent of the bankrupt, priatee;

or where there is a debt, or something in the nature of a debt

due to the bankrupt, it is very material to consider what conperty in the

stitutes a valid appropriation in equity, when notice of the possession of appropriation is necessary to the appropriatee, and when to an agent of

the agent or debtor, when an appropriation is revocable and the bankrupt; when irrevocable. Where there is a contract to appropriate,

charge, or hold in trust specific property, or a specific debt or fund, nothing more, assuming the contract not to be in fraud of the bankruptcy laws, is required. The contract operates forthwith as an assignment in equity, without any notice to the agent or debtor or trustee for the bankrupt (Rodick v. Gandell, 1 De G. M. & G. 789; Burn v. Carvalho, 4 M. & Cr. 690); but where the property, debt, or fund is not specific, the bankrupt must, in order to constitute an assignment in equity, by overt act, as by posting an order to the debtor or agent, specify the subject-matter of the assignment. (Ex p. Adams, 26 L. T. 96.) `As to the effect of the specification of the subject-matter rendering the order irrevocable, see Fisher v. Müller, 1 Bing. 150, and Gibson v. Minnet, 2 Bing. 7. It is necessary, however, to bear in mind the distinction between an imperfect legal assignment and a perfect contract to appropriate; the former of which, if bankruptcy intervene, is of no avail against the trustee in bankruptcy, if the intention of the contracting parties is that no interest shall pass until the legal assignment is perfected, whereas the latter gives immediately a perfect title against the trustee. It is always to be remembered when speaking of the necessity of notice to the agent, debtor, or trustee of the bankrupt, to perfect the equitable assignment, that although notice may not be necessary to the perfection of the equitable assignment, yet if the subject matter be something falling within the scope of the reputed ownership section (sub-section (iii.), post), notice will generally be necessary to take the subject-matter out of the operation of that section. It does not, however, seem necessary in any case where there is an antecedent contract to appropriate, to give notice to the appropriatee of an appropriation made in pursuance of the contract, as his consent will be assumed to that which is to his advantage. (See Ex p. Imbert, 1 De G. & J. 24; 26 L. J. Bank. 65; Thayer v. Lister, 30 L. J. Ch. 427.) The most remarkable case where an appropriation not strictly in pursuance of an antecedent contract has been upheld, is Bailey v. Culverwell, 8 B. & C. 448, in which case § 44. agents sold goods of their principal to a trader who paid by a bill drawn by the trader and accepted by another person, and the goods after the sale were left by the purchaser in the hands of the same agents. Before the bill became due the acceptor failed, and the agents, without instructions from the seller, having applied to the trader for security, he gave them a written order to sell the goods and apply the proceeds in payment of the bill, but before the sale was effected, and before the appropriation was communicated to the seller, the trader became bankrupt. It was held that the goods were subject, as against the assignee in bankruptcy, to the charge created by the bankrupt for the payment of the bill.

As to what constitutes a contract for specific appropriation Contract to as distinguished from a representation of the bankrupt's means appropriate. of paying, see The Citizens' Bank of Louisiana v. The Bank of New Orleans, L. R. 6 H. of L. 365, in which case it was held that a representation made by the New Orleans bank, the drawers of a bill of exchange on the Liverpool bank, at the time of the sale of the bill to the Louisiana bank, that the bill was expressly or specially drawn against funds to a larger amount already remitted to the bank at Liverpool, did not constitute an equitable assignment of an equivalent amount of such funds, so as to entitle the Louisiana bank to have the funds in the hands of the Liverpool bank appropriated on the bankruptcy of the New Orleans bank to meet the bills, even though the Liverpool bank had both at the time of the

representations and of the bankruptcy, sufficient funds of the New Orleans bank so to do.

A promise to pay money when the debtor receives a debt What does due to him from a third person does not constitute an equit- not amount to able assignment, there being a distinction between a promise

an equitable

assignment. to pay out of a specific fund, and a promise to pay when that fund shall be received. (Field v. Vegaw, L. R. 4 C. P. 660; see also Re Irving, ex p. Brett, 7 Ch. D. 419.)

A letter on the face of it, amounting only to a revocable authority to a tenant to

pay his rent to the writer's bankers, cannot be converted into a specific appropriation by proof of an oral agreement to charge such rent, rent being an interest in land within section 4 of the Statute of Frauds. (Ex p. Hall, re Whitting, 10 Ch. D. 615.) It is, however, to be observed that no particular words are necessary to constitute an equitable assignment of either chattels or choses in action if the intention be clear, and that such an assignment may be created by word of mouth. (Row v. Dawson, 1 Ves. 331 ; Tudor's Leading Cases in Equity, vol. 2, 731 ; Gurnell v. Gardner, 4 Giff. 626—680.)

8 44.

son v.


As to what may be the subject of an equitable assignment, and the distinction between such an assignment and a mere licence to seize, see Holroyd v. Marshall, 10 H. of L. C. 191 ; 33 L. J. Ch. 193; Reeve v. Whitmore, 33 L. J. Ch. 63 ; 4 De G. J. & S. 1; Brown v. Bateman, L. R. 2 C. P. 272 ; Thomp

Cohen, L. R. 7 Q. B. 527; Cole v. Kernot, L. R. 7 Q. B. 534; Collyer v. Isaacs, 19 Ch. D. 342, and see ante, pp. 45, 46. The last-mentioned case shows that an assignment of after-acquired chattels, though absolute in form, may amount merely to a contract to assign, for breach of which proof must be made in the bankruptcy of the assignor, and, consequently, that chattels brought on the premises after bankruptcy cannot be seized under the assignment.

It was said in Keane v. Beard, 8 C. B. N. S. 381, that a cheque operates as an appropriation of an equivalent amount of the money of the drawer in the hands of the banker; see also Ramchurn Mullick v. Luckmeechund Radakissen, 9 Moore, P. C. 46, and Byles on Bills, 11th ed., p. 20; but it was decided by Jessel, M. R., in Hopkinson v. Foster, L. R. 19 Eq. 74, that a cheque is not an equitable assignment of a part of the drawer's balance at his bankers. This was followed by Schræder v. Central Bank of London, 34 L. T. 735, and these cases certainly seem to accord with those which decide that death operates as a determination of the authority to the banker to pay the cheque, which certainly would be utterly inconsistent with the operation of a cheque as an appropriation. See also Ex p. Richdale, re Palmer, 19 Ch. D. 409.

Where there is no antecedent contract to appropriate, an appropriation in consideration of an existing debt due from the appropriator, will, if communicated to the creditor, be irrevocable, because he may have forborne to sue in consequence (Fitzgerald v. Stuart, 3 B. & C. 842; Ranken v. Alfaro, 5 Ch. D. 786), and such an appropriation, unless in fraud of the bankruptcy law, will be enforceable against the trustees in bankruptcy; but an order on an agent or a legal assignment to a trustee intended to pass the property or other appropriation, will be a mere mandate from a principal to his agent, and therefore revocable unless communicated to the creditor for whose benefit it is made. (Scott v. Porcher, 3 Mer. 652; Morrell v. Wooten, 16 Beav. 197; Garrard v. Lauderdale, 3 Sim. 1; Hill v. Royds, L. R. 8 Eq. 290.) For instances at law where the rule that mandates to an agent not communicated to beneficiaries are revocable, even where a legal interest is intended to pass, see the cases cited by Lord Campbell in Siggers v. Evans, 5 E. & B. 367 ; 24 L. J. Q. B. 305.

Where there is no antecedent contract to appropriate.

A legal conveyance to a trustee who is himself a beneficiary,

§ 44. even if it be not communicated to the cestui que trust, would seem to be irrevocable. (Hobson v. Thelusson, L.R.2 Q. B. 642.)

The assent of the beneficiary to whom the communication is made will, in the absence of evidence to the contrary, be presumed, since the appropriation is for his advantage (Siggers v. Evans, 5 E. & B. 367; 24 L. J. Q. B. 305), but his dissent may be inferred from his conduct (Garrard v. Lauderdale, 3 Sim. 1), or after long delay in assenting after notice (Gould v. Roberts, 4 De G. & S. 509).

The order, the communication of which to the beneficiary renders it irrevocable, must be directed to the person in whose hands is the fund charged. (Bell v. L. 8. N. W. Railway Co., 15 Beav. 548.) See further, as to what constitutes an equitable assignment, the case of Ex p. Morgan, re Larivière, 44 L. J. Bank. 457.

As to goods in the hands of the bankrupt himself, the con- (3) of property tract to appropriate specific goods operates as an assignment in the posses

sion of the of those goods in equity, but it is to be observed that such a

bankrupt. contract, if relied on as an equitable assignment, is, if in writing, a bill of sale, and unless registered, void as against the trustee in bankruptcy.

Where the goods are not specified by the contract, it is necessary that they should be specified before any interest will pass; and it would seem that this appropriation must be evidenced by some overt act. (Ex p. Imbert, re Latham, 1 De G. & J. 152.) How far an appropriation to meet an existing liability, but not in pursuance of an antecedent contract, is a binding appropriation before it is communicated to the person in whose favour it is made, seems doubtful, but generally such an appropriation would amount to a fraudulent preference. (Wilson v. Balfour, 2 Camp. 579; Edwards v. Glynn, 28 L J. Q. B. 350; Bailey v. Culverwell, 8 B. & C. 448.)

There is one great exception to the rule that to constitute Rule in an equitable assignment there must be privity between the Waring's case. assignor and assignee, either by contract or by estoppel, and that exception is the well-known doctrine in Waring's case, 19 Ves. 345, where it was decided that if both the drawer and acceptor of bills become bankrupt, and as between the drawer and acceptor funds have been specifically appropriated to meet the bills, the bill-holders, although in no way privy to or cognizant of the appropriation, are entitled to enforce the appropriation, not on account of any equity in themselves but of the necessities connected with the administration of the two insolvent estates, and the equities as between the insolvents. The principle which is thus applied in favour of

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