JUDGMENT

Murray-Aynsley CJ:

In this case the testator made a deposit in a bank in the joint names of himself and of the appellant who was then an infant. The bank issued a receipt for the money in the names of the testator and the appellant which document recited the fact that interest was agreed at a certain rate and added that "this amount shall be received" by the named persons "or bearer in Singapore". I think that it is reasonably clear that if this had been an ordinary banking account the right to this sum of money would have passed at law to the survivor in the event of the death of one of the named persons and not to the personal representatives of the deceased, and further, in the circumstances of this case, there would in the ordinary way be no question of a resulting trust. The doctrine of resulting trusts has been applied in this Colony. I regard this as a misfortune. The rules as applied in England may have been in accordance with conditions that prevailed in England in the time of the first Queen Elizabeth but they have long since become merely arbitrary and I do not think that they have ever had any relation to conditions in this Colony. It is probably too late to do anything about it.

There are juristic difficulties in considering what happens when money is paid by anyone into the banking account of another. The resulting chose in action is a right in contract by that other person against the bank. This involves questions of agency and if the payment was not made at the invitation of the other person ratification is necessary to complete the cause of action. However, the thing is so commonly done that in the normal course of events there is no difficulty in assuming these things though they do not occur to those who are not lawyers. To the lay mind, no doubt, the whole thing appears as simple as dropping a coin into a money box.

In the present case the difficulties arise from the form of the receipt issued, in particular, from the words "or bearer". The learned Judge who heard the matter at first instance held that this document was a bearer security and that the title was in the holder who was the testator and that the appellant never had any rights in it either at law or in equity. I do not agree with this. This document was not negotiable and it could not be assigned at law by mere delivery. Parties cannot by contract make a chose in action negotiable, nor can they create a chose in action which is assignable other than in accordance with the statute. Delivery would at most operate as an equitable assignment and an assignee could only sue the bank in his own name after the procedure required by statute for the legal assignment of a chose in action had been completed. I think that the words "or bearer" merely have the effect of excusing payment by the bank to a holder unless they have had a contrary direction from the depositors. If the document got lost the depositors could require payment without its production and without giving an indemnity. In my opinion this document is not a security or a document of title but a mere receipt. I think, therefore, that we must deal with this transaction as we would with any other deposit in a bank. In the circumstances it appears to belong to the appellant and the appeal should be allowed.

Costs to be reserved.

JUDGMENT

Storr J:

I agree. The main question to be considered in this appeal is whether the words "or bearer" added to the names of the testator and appellant had any bearing on the nature of the document. The learned trial Judge came to the conclusion that such words turned the document into a bearer security, with which conclusion I am unable to agree, because had they done so, the issuing bank would have been infringing s. 8(1) of the Currency Ordinance, 1938.

I agree with the learned President that all that the words "or bearer" did was to permit the bank to pay a holder unless they had received contrary directions from the named depositors. From the fa