209

BURTON
J.A.

drawer to accept or not, would be obligatory upon him Judgment. without acceptance merely because he had dealings with the drawer from which moneys might become due. If the instrument itself discloses the fact that a certain portion of those moneys has been transferred, that is a different matter, and having notice of such transfer the debtor cannot disregard it.

It is scarcely necessary to refer to authority to shew that if this is a bill of exchange it cannot be treated as an equitable assignment; perhaps no stronger case can be found than Shand v. Du Buisson, L. R. 18 Eq. 283, where the drawer had a fund in his hands and the party entitled to that fund drew a bill of exchange for the exact amount, and where it was endeavoured to treat it as an equitable assignment, a contention which Bacon, V. C., thus disposed of:

"I do not desire to narrow the jurisdiction that has been handed down to this Court, by which an equitable assignment has been dealt with by this Court; but it is entirely new to me to hear that a bill of exchange in an ordinary mercantile transaction in the shape in which this appears, can amount to an equitable assignment of the debt. *** A mercantile instrument it is in its origin, and in that shape it remains, and has no other vitality or effect, and to call it an assignment of a debt would be to call it not by its right name."

If this point had been urged in the Court below I think the learned Judge would in all probability have given effect to it, and I do not think it right that the plaintiffs, whose claim is a perfectly honest one, should in addition to their other loss be saddled with the costs of this appeal.

OSLER, J. A. :

The plaintiffs' difficulty is that they have failed to prove the allegation in the statement of claim that they procured from their debtor Eyrie an order upon the defendant for $138.40" of the moneys then due or accruing due from the

40-VOL. XVII. A.R.

Judgment. defendant to Eyrie under her contract with the said Eyrie." OSLER The order produced differs in no legal respect from an

J.A.

ordinary bill of exchange, and though the defendant, the drawee, may have verbally promised to pay it, she never accepted it and is not liable thereon. The only ground on which it was sought to charge her was that the order amounted to an equitable assignment of so much of the moneys as were then or would thereafter become payable to Eyrie, the drawer, under his contract with the defendant. But one of the very incidents which makes the instrument a valid bill of exchange, namely that it is not drawn against or payable out of any particular fund, prevents it from operating as an equitable assignment. It is clear that a bill of exchange is not an equitable assignment of the drawer's money in the hands of the drawee: Shand v. Du Buisson, L. R. 18 Eq. 283; Hopkinson v. Forster, L. R. 19 Eq. 74; Lamb v. Sutherland, 37 U. C. R. 143. And it is equally well settled that to constitute a valid equitable assignment there must be a specific appropriation of the whole or some part of an existing fund, or of a fund which. is to arise out of some existing contract or agreement: Lamb v. Sutherland, 37 U. C. R. 143; Brown v. Johnston, 12 A. R. 190; Lett v. Morris, 4 Sim. 607; Ryall v. Rowles, 2 W. & T. L. C. 6th ed., at p. 841. In that respect this instrument is deficient. It was argued that the direction in the order to "charge to my account" was a sufficient indication of an existing fund. That point was unsuccessfully taken in In re Farrell, 10 Ir. Ch. R. 304 (1860). These words are nothing more than the ordinary language of a bill of exchange. They identify no particular specific ascertained fund or account against which the drawer has a right to draw, and do not affect its negotiability.

I have examined the evidence carefully in order to see whether sufficient proof of a parol assignment, apart from the order, might not have been established, for a parol assignment if clearly proved would be sufficient and the order might have been disregarded: Heath v. Hale, 4 Taunt. 326; Gurnell v. Gardner, 9 Jur. N. S. 1220; Arm

OSLER
J.A.

strong v. Farr, 11 A. R. 186, and cases there cited. There Judgment. is, however, no such evidence. All that was said or done seems to have been said or done with reference to the order itself. There is no proof of any independent agreement between the plaintiffs and Eyrie that so much of the moneys due under the contract should be assigned or made payable to the plaintiffs, as a consequence of which agreement the order was given.

The appeal must therefore be allowed, but I think without costs, and the action dismissed with costs.

HAGARTY, C. J. O., and MACLENNAN, J. A., concurred.

Appeal allowed without costs.

Statement.

MACDONELL V. BLAKE.

Law Society-Bencher-" Retired Judge "-R. S. O, (1877) ch. 138, sec. 4.-R. S. O. (1887) ch. 145, sec. 4,

A Judge of a Superior Court of the Province of Ontario, who, after his
voluntary resignation of his office, before he has become entitled to a
retiring allowance, has been accepted, resumes the practice of his pro-
fession, is a "retired judge " within the meaning of R. S. O. (1877) ch.
138, sec. 4, and as such is an ex officio Bencher of the Law Society of
Upper Canada.

Judgment of the Chancery Division, 17 0. R. 104, affirmed, BURTON,
J.A., dissenting.

THIS was an appeal from the judgment of the Chancery Division, reported 17 O. R. 104.

The action was brought to obtain a declaration that the defendant Blake was not ex officio a Bencher of the Law Society of Upper Canada, and to restrain him from sitting or acting as a Bencher of the said Society, and to restrain the Society from permitting or allowing him to sit or act.

The defendant Blake, then a barrister of the Law Society of Upper Canada, was, on the 2nd of December, 1872, appointed, by commission under the great seal of Canada, one of the Vice-Chancellors of the Province of Ontario, and fulfilled the duties of that office until the 9th of May, 1881, when he tendered to the Secretary of State for Canada, his resignation of the office. On the 18th of May, 1881, his resignation was accepted, and he then entered into the active practice of his profession as a barrister-at-law. He was not in receipt of any retiring allowance from the Government of Canada. Upon his resignation, and upon his resuming practice, the defendant Blake was treated by the Benchers of the Law Society of Upper Canada as ex officio a Bencher of the Society, and was appointed a member of different Committees of the Society, and exercised the rights and discharged the duties of a Bencher of the Society.

The plaintiff was a barrister and a member of the Law Society of Upper Canada.

The action came on by way of motion for judgment Statement. before the Chancery Division, on the 28th of February, 1889, and on the 5th of March, 1889, judgment was delivered dismissing the plaintiff's action with costs.

An appeal from this judgment came on to be heard before this Court (HAGARTY, C. J. O., GALT, C. J. C. P., BURTON, and OSLER, JJ.A.) on the 18th of March, 1890.

J. Reeve, for the appellant. The defendant Blake is not a "retired judge" within the meaning of section 4 of R. S. O. (1887) ch. 145, and is therefore not ex officio a Bencher of the Law Society. The word "retired" used in its ordinary accepted sense is not applicable to one who resigns a public office for the purpose of actively engaging in work of some other nature. It is clearly intended to include only a judge, who, after the completion of the term of service which entitles him so to do, retires from his office upon a retiring allowance or pension, and gives up active duties: Maxwell on Interpretation of Statutes, pp. 24, 28, 67; Caledonian R. W. Co. v. North British R. W. Co., 6 App. Cas. at p. 126; Wood v. Preistner, L. R. 2 Exch. at p. 68.

H. Cassels for the respondent Blake. The only mode by which a judge can become a "retired judge," is by resignation, and therefore at once upon the acceptance by the Governor in Council of the respondent Blake's resignation of his office of Vice-Chancellor of Ontario he became a "retired judge," and ex officio a Bencher. See 31 Vic. ch. 33 (D). The word "retired "in the section in question has no reference to the course of life upon which a judge may enter after his resignation has been accepted, but refers solely to the relinquishment of the position that he has been occupying. It is not by virtue of the retirement that the judge becomes entitled to exercise the dignity of a Bencher, but by virtue of his appointment to the high office of judge. A. H. Marsh, and W. Read, for the respondents, the Law Society of Upper Canada. The words "resign" and retire," are synonymous, no special meaning being attachable to the word " retire," and the words being used inter