transferred unto, or should be otherwise well and effectually vested in the said trustees upon the trusts of those presents, he, the said Thomas Hudson, his heirs, executors, administrators and assigns, should and would thenceforth stand possessed of and interested in the said particulars and trust moneys respectively, and all moneys recoverable thereunder, or so much thereof respectively as should not for the time being be well and effectually vested in the said trustees as aforesaid, and of and in the income thereof respectively, upon and for such trusts, intents and purposes, and with, under and subject to such powers, provisoes, declarations and agreements as were therein expressed, declared and con-[714]-tained of and concerning the said trust funds and premises respectively, and the income thereof, or as near thereto as circumstances would allow; and it was thereby further agreed and declared between and by the said parties thereto that the said trustees and trustee for the time being of those presents should and would stand possessed of and interested in all and singular such further moneys, stocks, funds and securities (if any) as might at any time or times thereafter be vested in them or him by the said Thomas Hudson for that purpose, and of and in the income thereof, upon and for such trusts, intents and purposes, and with, under and subject to such powers, provisoes and declarations as were therein declared and contained of and concerning the said trust funds and premises thereby settled as aforesaid, or intended so to be, or such of the same as should be for the time being subsisting, undetermined and capable of taking effect, but so as not to increase or multiply charges.

The schedule to this deed comprised numerous securities for very large sums of money, most of which were investments in the funds and otherwise in the settlor's own name, and certain mortgages made to him. Among the rest was the sum of stock which raised the chief question in this case, and which was mentioned in the schedule as follows:-" £29,400, £3, 5s. per cent. Bank annuities, in the names of the trustees of the settlement, dated the 26th day of July 1819, executed on the marriage of the said Thomas Hudson, and which trustees it is hereby declared shall hold the said Bank annuities in trust for the trustees and purposes of the above-written indenture."

By a codicil to his will, dated the 13th of April 1852, the said T. Hudson, after reciting the settlement and revoking some pecuniary legacies made by his will, in all other respects confirmed his will, whereby he had given all his residuary personal estate to the same persons who [715] were trustees of the voluntary deed, upon certain trusts, and appointed them executors. T. Hudson died on the 14th of February 1853, having previously delivered to his said trustees the certificates of, or other securities for, the several sums of Bank annuities and East India stock, railway stock, shares, debentures, calls and other particulars mentioned in the said schedule to the deed, and also the said mortgage securities; but no transfer of the stock was made to the trustees of the voluntary settlement, nor was any notice of that settlement given to the trustees of the indenture of the 26th of July 1819, previously to the decease of the said Thomas Hudson.

The question was whether these particulars were included in the voluntary settlement or were liable to probate duty.

Mr. Daniel, Q.C., and Mr. Bateman, for the first tenant for life under the deed. The only substantial question is with respect to the £29,400 consols, which was not standing in the settlor's own name, and to the trustees of which no notice was given of this settlement. But this sum must also be bound by this deed, for the settlor assigned all his equitable interest in it, and could not himself do any further act to complete the transfer: Ex parte Pye (18 Ves. 140), Wheatley v. Purr (1 Keen, 551), M'Fadden v. Jenkins (1 Ph. 153), Fletcher v. Fletcher (4 Hare, 67), Bentley v. Mackay (15 Beav. 12). In Kekewich v. Manning (1 De G. Mac. & G. 176) Lord Justice Knight Bruce puts the case of stock being vested in A. as a trustee for B. for life, and subject thereto for C. absolutely; and observes that it must surely be competent for C. in B.'s lifetime to make an effectual gift of his interest, with or without the consent of A.; but [716] his Lordship continued-"It may possibly be thought necessary to the complete validity of such a transaction that notice should be given to A. Upon that we do not express an opinion."

Mr. Greene and Mr. Bathurst, for other parties claiming under the deed, cited

Voyle v. Hughes (2 S. & G. 18), in which a similar assignment, of which the trustees had notice, was held good; but Vice-Chancellor Stuart in the judgment seemed to intimate that, even without such notice, the assignment would be good.

Mr. Hanson, for the Crown. No valid trust of the £29,400 stock was created by this deed: Sloane v. Cadogan (Sugd. Vend. & Pur. p. 1119, 11th edit.) is commented on in Beatson v. Beatson (12 Sim. 281), where a similar voluntary assignment was held to be revocable. The trustees of the stock should not only have notice of such an assignment, but they should acknowledge the assigns to be cestuis que trust of the fund: Dillon v. Coppin (4 My. & Cr. 647).

THE VICE-CHANCELLOR reserved his judgment.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. In this case a question has been raised how far a deed of assignment, executed by Thomas Hudson, and dated the 29th day of June 1850, by which he voluntarily assigned a large amount of property, consisting of various securities, to trustees upon certain trusts for the benefit of his donees, has been available to pass certain portions of the property included in the deed. The question has arisen between some of the parties claiming under the deed and [717] the Crown, because the property which did not pass by the deed would be liable to probate and legacy duty as passing by the settlor's will.

With respect to the great bulk of the property comprised in the deed the counsel for the Crown has conceded that, as it stood in the funds and other securities in the name of the settlor, and as he has executed a declaration of trust contained in this deed, the relation of trustee and cestui que trust has been created, so that this Court will give effect to it. The real question arises with respect to the sum of £29,400 stock, which was standing in the names of the trustees of the settlor's marriage settlement in trust for himself. I do not think that the declaration of trust annexed to the description of this stock in the schedule is material. What I have to consider is how far an assignment of this kind, of which no notice was given to the trustees in whose names this stock was standing, was effectual to pass the property therein to the trustees of the voluntary deed, so that this Court would hold, as between the donees under that deed and the representatives of the assignor, that the title was complete. For the purposes of this question it was necessary to consider the case of Kekewich v. Manning (1 De G. Mac. & G. 176), in which the other decisions are reviewed and commented on by Lord Justice Knight Bruce, and which seemed to me, if I may use the expression, to stem the current of authority which had begun to set in adversely to these trusts, more especially since the decision in Edwards v. Jones (1 My. & Cr. 226). Ever since that case there has been considerably more difficulty as to how far a voluntary assignment of a chose in action does or does not confer a title on the donee. Looking through the cases, the principle which I gather from them is the same as that on which the Lords Justices seem to have proceeded in Kekewich v. Manning (1 De G. Mac. & G. 176), and, though that case [718] does not go so far as the present, I still think that this is concluded by it. In all the cases, except Beatson v. Beatson (12 Sim. 291), and particularly in Ex parte Pye (18 Ves. 140), it is laid down that, when there is a complete declaration of trust by a party concerning stock or choses in action vested in himself, this Court will enforce it. On the other hand, where there is a contract only, or an imperfect gift, which requires some other act to complete it on the part of the assignor or donor, the Court will not interfere to require anything else to be done by him. The intermediate cases alone are difficult of solution. The question is in every case, has there been a declaration of trust, or has the assignor performed such acts that the donee can take advantage of them without requiring any further act to be done by the assignor; and, if the title is so far complete that this Court is not called upon to act against the assignor, it will assist the donee in obtaining the property from any person who would be treated as a trustee for him. In Beatson v. Beatson (12 Sim. 291) alone there was an assignment of an equitable interest in stock, which was vested not in the donor but in a third party, and it was held that the Court would not assist the volunteer. In Dillon v. Coppin (4 My. & Cr. 647) stock standing in the donor's own name was assigned, and there this distinction was taken, which was somewhat nice, but still consistent with Ellison v. Ellison (6 Ves. 656) and the other cases, namely, that, the stock being in the name of the donor himself, and there being no declaration of trust but a mere

assignment, which would not pass the stock at all, and the deed shewing an evident intention on the part of the assignor to do some further act, and containing a covenant to perfect the gift, the Court said, we cannot call upon the donor to transfer the stock or complete the gift. But in the case of an as-[719]-signment of the equitable interest in stock standing in the names of trustees, the deed of assignment passes the whole equitable interest of the donor, and the donee may go with that deed to the trustees, and say, transfer to me the interest in this sum of stock; and I think that in such a case it would not even be necessary to make the donor a party to a suit to enforce the gift.

Then the question is whether, notice not having been given to the trustees, the gift could be enforced. As to that it has been said in some cases that the gift is complete when no further act is required to be done by the donor or the donee (see Edwards v. Jones, 1 My. & Cr. 239); and that seems to imply a doubt whether, if there were any act to be done by the donee, the gift could be treated as complete. But the assignment has completely passed the interest of the donor. It is true that, if no notice of it were given to the trustees, they would be justified in transferring the stock to the original cestui que trust for whom they held it; and if they did so there would be no remedy against them; and it is possible that the donee might not be able to recover the stock; but all that the donee has to do is, at any time he thinks fit, to give notice to the trustees before the stock is transferred; and when he has given such notice his title is complete; and, unless the donor or his executors actually obtain possession of the fund, the donee does not require the aid of this Court against them. The fact that the trustees are themselves the executors of the donor in this case I think does not make any difference. As the donor has not obtained possession of the fund, the donees have a right to go to the trustees and require them to transfer the stock or come to the Court to have that done. The donees require no assistance from the Court against the original assignor, and therefore the assignment is such as the Court will support. That is the principle upon [720] which cases like Sloane v. Cadogan (Sugd. Vend. & Pur. p. 1119, 11th edit.) proceed, and which Lord Cottenham seems to recognise in Edwards v. Jones (1 My. & Cr. 238), where he says, "In Sloane v. Cadogan (Sugd. Vend. & Pur. p. 1119, 11th edit.) the claim was not against the donor or his representatives for the purpose of making that complete which had been left imperfect, but against the persons who had the legal custody of the fund; and the question was whether the transaction constituted them trustees of the fund for the cestui que trusts. Sir W. Grant came to the conclusion that it did; and the consequence was that they were bound to account. That case has been considered by Sir Edward Sugden as going a great way; but, upon the principle stated by Sir W. Grant, it is free from all possible question, for there was no attempt in that case to call in aid the jurisdiction of the Court." In this case there is no need whatever for the donees to call in aid the jurisdiction of this Court against the original assignor or his representatives. All that they have to do is to require the trustees who hold the fund to transfer it to them.

This decision goes somewhat beyond all the authorities, except Cadogan v. Sloane (Sugd. Vend. & Pur. p. 1119, 11th edit.); but I cannot hold that the owner of an equitable interest in a chose in action is not entitled to assign it; and I think that, upon the principle recognised in Ellison v. Ellison (6 Ves. 656) and like cases, I must decide that the equitable interest in this stock was effectually assigned by this deed.

[721] STONE v. VAN HEYTHUYSEN. July 27, 1854.

Recital in Deed. Debt. Specialty. Agency.

A., being indebted to B., made and executed an indenture between himself and C., to which B. was no party; and thereby, after reciting that A. stated that he was indebted to B. in a certain specified sum, A. conveyed and assigned all his real and personal property to C., upon trust to sell, and out of the proceeds to pay the debt, and to pay the surplus to A. And the deed contained a covenant for further assurance. Held, that the debt to B. was not converted into a specialty. Whether that would have been the effect if B. had been a party to the deed, or if C. had executed it as B.'s agent, quære.

In this case a question arose whether Richard Edward Van Heythuysen had made himself a specialty debtor by executing the following deed in respect of £9249, part of the £10,249 therein mentioned:-"This indenture, made the 29th day of November 1851, between Richard Edward Van Heythuysen, of John Street, Bedford Row, in the county of Middlesex, gentleman, of the one part, and George Shepherd, of Beverley, in the county of York, gentleman, of the other part: Whereas the said Richard Edward Van Heythuysen states that he holds a sum of £10,249 or thereabouts, on behalf of Edward Gresley Stone, of Chambers Court, in the county of Worcester, Esq., and Henry Edward Montagu Stone, eldest son of the said Edward G. Stone, or one of them: And whereas the said Richard Edward Van Heythuysen claims to have a lien or right of set-off against the said sum; or a portion thereof, for certain law costs and advances of money: And whereas the said Edward G. Stone and his son have applied to the said Richard Edward Van Heythuysen for the immediate repayment of the said sum; and the said Richard Edward Van Heythuysen, not being prepared at once to pay the said sum or to state an account, hath consented, on the application of the said Edward G. Stone and his said son, to make and give such security to them as is hereinafter contained: And whereas the said Richard Edward Van Heythuysen hath this day paid to or on behalf of the said Edward G. Stone and his said son, the sum of £1000 on account and in part discharge of the said first-mentioned sum: Now this indenture witnesseth that, in pursuance of the said agreement, and for the considerations aforesaid, he the said Richard Edward Van Heythuysen doth hereby grant, convey and assign unto the said George Shepherd, his [722] heirs, executors, administrators and assigns all and singular the real and personal estate, rights and credits whatsoever and wheresoever of him the said Richard Edward Van Heythuysen, To have and to hold the said real and personal estate, rights and credits unto the said George Shepherd, his heirs, executors, administrators and assigns, Upon trust to call in, sell and convert into money, at his or their discretion, and at such time or times, and in such manner, and in such parts or shares as he or they shall think fit, all or any part of the said real and personal estate, rights and credits, and to convey and assure the same to the purchasers thereof, and to give full and effectual receipts and discharges for the moneys to arise therefrom, which shall exonerate such purchaser or purchasers and all others paying any such moneys from seeing to the application thereof. And upon further trust, out of such moneys to pay and retain all costs and expenses which shall be incurred or arise in the exercise or otherwise in relation to these presents, and after payment thereof, to retain and pay to and on behalf of the said E. G. Stone and his said son, or such of them as may be legally or equitably entitled to the same, the said firstmentioned sum, or such other sum or sums not exceeding altogether £12,000 as are due or payable from or by the said Richard Edward Van Heythuysen in respect of the matters aforesaid. And upon further trust as to the surplus of such real and personal estate, rights and credits (if any), for him the said Richard Edward Van Heythuysen, his heirs, executors, administrators and assigns, according to the natures, tenures or qualities thereof. And the said Richard Edward Van Heythuysen hereby covenants for himself, his heirs, executors, administrators and assigns, with the said George Shepherd, his heirs, executors, administrators and assigns, at any time or times hereafter to make or execute any further assurance or assurances, which the said George Shepherd, his heirs, [723] executors, administrators and assigns may reasonably require. In witness," &c.

Mr. James, Q.C., and Mr. Beales, for Van Heythuysen. This deed did not make the debt a specialty, for the Stones were not parties to it: Garrard v. Lord Lauderdale (2 Russ. & My. 451); and a mere recital in a deed does not so change the nature of a simple contract debt: Lacam v. Mertins (1 Ves. sen. 312); and the words used are not such as "raise a declaration or agreement amounting to a covenant:" Adey v. Arnold (2 De G. Mac. & G. 432).

Mr. Willcock, Q.C., and Mr. A. J. Lewis, for the Stones. This deed created a specialty in respect of the £9249 upon which an action of debt might be brought; no particular form of words is necessary. An I. O. U. contains no promise to pay.

It is stated in 3 Com. Dig. "Debt" 382, A. 4-"So debt lies on an obligation or other deed or specialty, as if a man by obligation or other deed acknowledges that he

has received money from A. ad computandum, A. may have debt upon it: 1 Roll. Ab 597, 1. 30; or, that he has so much of the money of A. in his hands:" Brice v. Carre (1 Lev. 47), Hollis v. Carr (Freem. 3), Graves v. White (Freem. 57), Barefoot v. Freswell (3 Keb. 465, pl. 47), Mountstephen v. Brooke (3 B. & Ald. 141). In Cheslyn v. Dalby (4 Y. & C. Exch. 238) a promise to pay was implied from recitals, so as to take the debts out of the Statute of Limitations. In The Duke of St. Albans v. Ellis (16 East, 352), a covenant in a lease to cultivate the demised premises, except the rabbit warren, was held to imply a covenant not to cultivate the rabbit [724] warren, upon which an action of covenant would lie. Rigby v. The Great Western Railway Company (4 Railw. Cas. 190) shews that, in questions of this kind, the general intention of the deed is to be regarded: Saltoun v. Houstoun (1 Bing. 433). The principle was recognised in Courtney v. Taylor (6 Man. & Gr. 851).

The reply was not heard.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I think I cannot hold this to be more than a simple contract debt. It appears that Van Heythuysen, being pressed to give security for his debt to the Messrs. Stone, executed this deed, which was made between him and George Shepherd, who acted as a trustee for the Stones. The most favourable view of the case for those gentlemen would be to treat Shepherd as their agent, and to consider this acknowledgment to have been given under seal to their agent at their own instance. I am not quite sure what the effect of such a transaction might be. There is a case in the Cases temp. Talbot in Chancery (Gifford v. Manley, Cases t. Talbot, 109) in which it is laid down that an acknowledgment of accountability under seal given to a party to the deed will create a specialty debt; and this doctrine would probably apply to a case in which a similar instrument was entered into with an agent of the principal creditor and handed over to such agent, which would be equivalent, in fact, to giving it to the creditor himself. If Shepherd in this case had been simply Stones' agent the first recital in this deed would have favoured the view taken by the Stones. The words are, "Whereas the said Richard Edward Van Heythuysen states that he holds a sum of £10,249, or thereabouts, on behalf of Edward Gresley Stone of Chambers Court, in the [725] county of Worcester, Esq., and Henry Edward Montague Stone, eldest son of the said E. G. Stone, or one of them." Then the recital proceeds, " And whereas the said R. E. Van Heythuysen claims to have a lien or right of set-off against the said sum, or a portion thereof, for certain law costs and advances of money; and whereas the said E. G. Stone and his son have applied to the said R. E. Van Heythuysen for the immediate repayment of the said sum; and the said R. E. Van Heythuysen, not being prepared at once to pay the said sum, or to state an account, hath consented, on the application of the said E. G. Stone and his said son, to make and give such security to them as is hereinafter contained; and whereas the said R. E. Van Heythuysen hath this day paid to or on behalf of the said E. G. Stone and his said son the sum of £1000 on account and in part discharge of the said first-mentioned sum." And then it is witnessed that R. E. Van Heythuysen makes an assignment of all his real and personal estate to Shepherd upon trust to sell and convert, and out of the proceeds to pay the said debt, and then there is a covenant for further assurance. The question is whether I can collect from the recitals a sufficient expression of intention to convert this simple contract debt into a specialty. The ground on which the case in Cases temp. Talbot, and the other cases which have been cited, proceeded was that it was impossible to import any other intention into the instrument, which in those cases was simply an acknowledgment that the party owed so much money, than this, namely, that he intended to make it a specialty debt; and there could be no other reason for his going through the formality of sealing it. In several cases it has been held that recitals in deeds may have a similar effect, where the recital is that one party owes a certain sum of money to another party to the deed. I do not know whether any case has gone quite so far; but if there is a recital of any previous agreement, as in the case in [726] Bingham and the case in Levinz, the Court collects an intention, as L. C. J. Tindal expresses it, to convert a simple contract into a specialty debt. That learned Judge, in Courtney v. Taylor (6 Man. & Gr. 851), which was as strong a case as could be, for there was a distinct admission of a debt due and owing by one party to the deed to another, said this, "It is not necessary that there should be express words of covenant or agreement. It is enough