a thesis - Institute of Advanced Legal Studies

RULES DETERMINING INTENTION TO CREATE A TRUST. 47
one creditor to another. C., a creditor, executes the deed and
receives under it a payment on account. 0. is entitled to a decree
for the execution of the trust. Cosser v. Radford (1863), 1
De GK J. & S. 585.
(b) When it is communicated to any of them who expressly or
implicdly assents thereto.—In Garrard v. Lauderdale (supra], it
seems to have been held that even the communication to the creditors
of the fact that the trust has been made would not defeat the
power of revocation, but this was dissented from in Acton v.
Woodgate (supra), where Sir John Leach, M. E., says : " It appears
to me, however, that this doctrine is questionable; because the
creditors being aware of such a trust might be thereby induced to
a forbearance in respect of their claims which they would not
otherwise have exercised"; a view with which Sugden, L. 0., agreed
in the Irish case of Field v. Donoughmore (1841, 1 Dru. & "War.
228), where he said: "It is not absolutely necessary that the
creditor should execute the deed; if he had assented to it, if he
had acquiesced in it, or acted under its provisions and complied
with its terms, and the other side expressed no dissatisfaction, the
settled law of the Court is that he is entitled to its benefits." The
same judge subsequently expressly assented to the above statement
of the law by Sir John Leach in Browne v. Cavendish (1844, 1 Jo.
& Lat. 635), where, however, he goes on to say: "I do not mean
to bind myself to hold that in every case a representation to a
creditor will give him the benefit of the trust. It must depend on
the character of the representation and the manner it is acted on.
On the other hand, I should be sorry to have it understood that a
man may create a trust for the benefit of his creditors, communicate
it to them, and obtain from them the benefit of their lying by
until perhaps the legal right to sue was lost, and then insist that
the trust was wholly within his power." The point was again
discussed in Kincan v. Daniel (1847, 5 Ha. 493), and the statement
in Garrard v. Lauderdale dissented from, although the actual
decision went upon another ground; while in Griffith v. Ricketts
(1849, 7 Ha. 307), it was said plainly, although again only by
way of dictum, that such a deed would not be revocable against
creditors between whom and the trustees such communications had
taken place " as would give them an interest under the deed."
The decision in Garrard v. Lauderdale, therefore, must, on this
point, be regarded as overruled by the later cases. In Harland v.