a thesis - Institute of Advanced Legal Studies

48 EXPRESS TRUSTS.
Bink* (1850, 15 Q. B. 713), for example, it was expressly decided
that the trust became binding when the assignment was communicated
to the creditors, and they expressed themselves " satisfied " and
took no steps to enforce their claims. Again, in Si/nnot v. Simpson
(1854,5H.L.dat p. 138), Lord Gran worth said: " If the debtor has
notice given him [sic—qy., has given him (i.e., the creditor) notice]
of the existence of the deed, and has expressly or impliedly told him
he may look to the trust property for payment of his demand, the
creditor may thereby become a cestui que trust." In Cosser v.
Radford (1863, 1 De G. J. & S. 585), it was said by Turner, L. J.,
that " if the creditors act upon the deed it becomes binding"; but
there the creditor had, as a matter of fact, executed the deed;
and in Johns v. James (1878, 8 Ch. D. 744), James, L. J., said:
" If the creditor has executed the deed himself, and been a party
to it and assented to it—if he has entered into obligations on the
faith of the deed, of course that gives him a right." But it appears
from Comthwaite v. Frith (1851, 4 De G. & Sm. 552) that it must
be clearly proved that the trust has been communicated; mere
communications by the trustee with the creditors about their claims
was held insufficient to entitle them to a decree for the execution
of the trust.
Exactly what must be the nature of the communication with
creditors in order to prevent the deed being revocable seems, then,
not to be quite clear.
It does not seem to matter whether the communication is made
by the settlor or the trustee. In Synnot v. Simpson (supra), Lord
Cranworth spoke of communication by the debtor being sufficient;
while in Harland v. Binks (1850, 15 Q. B. 713), it was held that
communication by the trustee was sufficient. (See also Griffith v.
Ricketts, supra.}
Again, it does not seem necessary that the assent of the
creditors should be an express one. If the creditor incurs obligations
on the faith of the deed it becomes binding, according to
James, L. J., in Johns v. James (supra).
Whether a sufficient communication of the deed to some only
of the creditors renders it irrevocable as to all cannot be gathered
from the cases, but, having regard to the cases as to the effect of
execution by some only of the creditors (SGQ supra), it is submitted
that it would not.