Page images
PDF

On the Construction of the New Statute of Limitations.Practical Points. 53 Naticcs of New Books: Lewin on the Law of Trusts and Trustees.

claim and title to the annuity. That the case must have been governed by the 2d section, if that section had stood alone, cannot be doubted ; and, upon a more close examination of the 3d section, the object and intent of it seem to us to be no more than this: to explain and give a construction to the enactment contained in the second clause, as to 'the time at which the right to make a distress for any rent shall be deemed to have first accrued,' in those cases only in which doubt or difficulty might occur; leaving every case which plainly falls within the general words of the 2d •ection, but is not concluded amongst the instances given by the 3d, to be governed by the operation of the 2d. Many reasons concur to shew that such must be the just construction of the Act. In the first place, if it had been intended that the 3d section should limit the application of the 2d to those cases, and those only, which are enumerated in the 3d, it might justly have been expected that words would have been employed to express clearly and distinctly such an intention. But in this section there are no words that can be said directly to exclude all instances, except those enumerated in the 3d section. Again, if the words "granted by any instrument other than by will,' were to be held to prevent the application of the statutory limitation of 20 years to claims of land or rent granted by will, it would be at direct variance with other parts of the statute, for the instance in the 3d section, immediately following that now under consideration, which provides for cases of claims in respect of estates in reversion or remainder, 'or other future estates or interests,' is large enough to comprehend and would comprehend all executory devises; and again, sec. 40 expressly provides for the case of any legacy. And indeed, the words, 1 by any instrument other than by will,' carry the matter no further than if the 3d section had proceeded by attempting to enumerate every species of instrument by which an estate in land or rent could have been granted, and had omitted to mention a will, in which case the only inference that could be drawn from such omission would have been, that the case not being enumerated in the 3d section, fell back upon the general provision contained in the 2d. Indeed, unless this is held to be the true construction, the case which is likely to occur perhaps with the most frequency, viz. the devise of an estate in possession in land, or of an estate in possession in a rent charge firit created by the will, would be altogether

unprovided for by the statute. For the third class of instances enumerated in sec. 3, describes the grant to be 'by a person being in respect of the same estate or interest in the possession or receipt of the profits of the land, or in the receipt of the rent,' a description which can neither apply to the case of a devisee of a particular estate in land, or of a newly created rent; for the devisor who has by his will carved an estate in laud out of the estate whereof he was seised, can never be said to have been possessed in respect of the same estate or interest as that claimed by the devisee; still less can the devisor who creates a new rent charge by his will, be said to have been in the receipt of the rent. The case therefore under discussion, not falling within the 3d section, but falling within the clear and unambiguous terms of the 2d, we hold to be governed thereby; that the claim and title of the defendant Salter to the annuity, is barred by the lapse of twenty years, since his. right to distrain first accrued; and that the verdict upon this issue must be returned for the plaintiff.""

PRACTICAL POINTS OF GENERAL. INTEREST.

WHAT WAOKRS A HE ILLEGAL.

A Wagbr in not illegal unless contrary to morals or public policy, Good v. Elliott, 3 T. R. 693; De Costa v. Jones, Cowp. 729. Thus a wager upon the event of a suit at law, has been held legal, Jones v. Randall, Cowp. 17. A wager upon the event of an election, is illegal, as k might lead to bribery, Allen v. Hearn, 1 T. R. 66„ So also a wager by which A. was to receive from B. 100 guineas on the 3lst of May, 1802, in consideration of paying to him a guinea aday as long as Napoleon Buonaparte, then first consul of the Frenoh republic, should live, was held void on the grounds of immorality and impolicy, Gilbert v. Sykes, 16 East, 150. The point most recently discussed on this subject has been, whether a wager on the price of foreign stocks is not illegfd by statute or common law. We have recently stated the cases on the construction of the Stock Jobbing Act, 7 Geo. 2, c. 8, in which it has been held that the Act does not extend to what is called stock-jobbing in the foreign funds, Wells v. Porter, 2 Bing. 722, N. C.; and Oakley v Rigby, 2 Bing,

» James v. Salter, 3 Bing. 544, N. C,

[ocr errors]

732, N. C, stated 12 L. O. 218; and it has recently been held that a wager on the price of foreign stocks is not illegal. In the case of Paterson v. Powell, 9 Bing. 320, an engagement in consideration of forty guineas to pay one hundred pounds in case Brazilian shares should be done at a certain sum on a certain day, subscribed by several persons, each for themselves, was held a policy of insurance, and void under the 14 Geo. 3, c. 48; but with respect to the wager, Tindal, C. J. said, unless we were to give a judgment contrary to all the decisions, from Good v. Elliott down to the present time, we have no right to say that a wager on the price of foreign stock is void at common law. At common law wagers are not illegal, except such as involve a breach of law or morals, or affect the public policy of the country; but as I do not conceive any such consequences necessarily resulting from this wager, I see no ground on which it is void at common law. Morgan v. Pebrer, 3 Bing. N. C. 457.

NOTICES OF NEW BOOKS.

A Practical Treatise on the Law of Trusts

and Trustees. By Thomas Lewin, Esq. of Lincoln's Inn, Barrister at Law. London: A. Maxwell, 1837. This is an able work on Trusts and Trustees,—a branch of the law of great extent and practical importance. We think the Author has bestowed great pains iu its composition, and that it is entitled to rank amongst the standard works of the profession. After an introductory view of the rise and progress of Trusts, Mr. Lewin arrauges the materials of his subject in the following method:

The First Part treats of the Definition, Distribution, and Creation of Trusts, under the heads of: 1. Definition of a trust. 2. The different kinds of trusts. 3. The creation of trusts by the act of a party, and who may declare a trust. 4,. The formalities to be observed in the creation of trusts. 5. In what words a trust may be declared. 6. Who may be trustee. 7. Of vesting the legal estate in the trustee. 8. Who may be cestui que trust. 9. What consideration will support the trust. 10. Of the object proposed by the trust. 11. Creation of trusts by act or operation of law.

The Second Part relates to the estate and office of a trustee, and comprises: 12. The disclaimer and acceptance of the trust. 13. What estate will be vested in the trus

tee. 14. The devolution and properties of the legal estate in the trustee. 15. The general properties of the office of trustee.

16. Duties of trustees of chattels personal.

17. Duties of trustees of renewable leaseholds. 18. Duties of trustees to preserve contingent remainders. 19. Duties of trustees for sale. 20. Duties of trustees of charities. 21. The powers of trustees. 22. Of allowances to trustees. 23. How a trustee may relinquish his office.

The Third Part treats of the estate of the cestui que trust, under the following subdivisions: 24. In what the estate of cestui que trust consists. 25. The properties of cestui que trust's estate. 26. Cestui que trust's relief against the failure of the trustee. 97. The rights of cestui que trust in prevention of a breach of trust. 28. Remedies of cestui que trust in event of a breach of trust. 29. Maxims of equity for sustaining the true character of the trust estate against the laches or tort of the trustee.

As an example of Mr. Lewin's style and manner, we select his definition of trusts, which contains passages that may be useful to some of our readers.

"A trust cannot be more exactly defined than in the terms employed by Lord Coke for the definition of a use, viz. A confidence reposed in some other, not issuing out of the land, but as a thing collateral, annexed in privity to the estate of the land, and to the person touching the land, for trhich cestui que use has no remedy hut by subpoena in chancery.

"1. It is a confidence; not necessarily a confidence expressly reposed by one party in another, for it may be raised bv implication of law; nor need the trustee of the estate be actually capable of confidence, for tbc capacity itself may be supplied by legal fiction, as where (he administration of the trust is committed to a body corporate ; but a trust is a confidence, as distinguished from jut in re and jus ad rem, for it is neither a legal property, nor is it a legal right to property.

2. It is a confidence reposed in some other; aot in some other than the author of the trust, Cor a person may convert himself into a trustee, but in some other than the cestui que trust; for as a man cannot sue a subparna against himself, he cannot be said to hold upon trust for himself. If the legal and equitable interests happen to meet in the same person, the equitable is. for ever absorbed in the legal;;i s i f .7. die seised of the legal estate ex parte paieriui, and of tlie equitable ex parte maiernd, the heir of the maternal line has no equity against the heir of the paternal.

"But the rule holds only where the legal and equitable estates are co-extensive and commensurate ; for if a person be seised of the legal estate in fee, and have only a partial equitable interest, to merge the one iu the other might

Notices of New Books: Lewin on the Law of Trusts and Trustees.

[ocr errors]

lead to a violation of rights j as if lands be conveyed to A. and his heirs, in trust for B. in tail, with remainder to A. in fee, should the equitable remainder limited to A. be converted into a legal estate, it would not be barrable by B.'i equitable recovery. Lord Aleanley upon this case observed—' The objection to the recovery is, that at the time it was suffered the remainder in A. was not an equitable, but a legal remainder; and therefore, according to the doctrine established in this court that in order to make a good equitable rccovcty the remainders must be equitable, the recovery is void as to him. It was maintained/ that where there is in the sameperson a legal and equitable interest, the former absorbs the latter, i admit that where he has the same interest in both, he ceases to have the equitable estate, and has the legal estate, upon which the Court will not act, but leaves it to the rules ef law; but I do not by any means admit, that, where be has the whole legal estate and a partial equitable estate, the latter sinks into the former. It has been very ably argued, that there seems an absurdity in saying he had an equitable remainder for himself, where he had the whole legal fee ; but it is much more absurd to say, he had a legal remainder. It is impossible—it would be a solecism—to state to a lawyer that he could have an estate in fee with a remainder in tail expectant in law upon it; but there is no such absurdity in saying he might have the whole legal estate, ana a limited interest in the beneficial interest of that estate. When I am told that legal and equitable estates cannot subsist in the same person, it must be understood always with this restriction—that it is the same estate in law and in equity; for then there is no person upon whom the Court can act—the equitable estate is absorbed—the better phrase is, that it no longer exists : but when for the purposes of justice it is necessary it should exist, that circumstance shall not put a party entitled into a worse condition.'

"In the case of a mortgage, in fee it is said a man ami his heirs are trustees for himself and his executors; but the meaning is no more than this, that, until a release, or foreclosure of the equity of redemption, the interest of the mortgagee Is of the nature of personalty, and passes on his death to his personal representatives ; the heir, therefore, takes the estate upon trust for the executor; a release or foreclosure, unless it happen in the lifetime of the mortgagee, comes too late after his decease to alter the character of the property, for, as the tree falls, to it must lie.

"3. A trust is not issuing of the land, but as a thing collateral to it. A legal charge, as a rent, issues directly out of the land itself, and therefore binds every person, whether in the per or post, whether a purchaser for valuable consideration or volunteer, whether with notice or without; but a trust is not part of the land, Iwt an incident made to accompany it, and that not inseparably, but during the continuance only of certain indispensable adjuncts, for—

"4. A trust is annexed in privity to the es

tate, that is, must stand or fall with the interest of the person by whom the trust is created; as, if tenant for life declare a trust in fee, the determination of the life estate must put an end to the trust. And so, if lands be limited to A. and his heii s, with a springing use to B. and his heirs, a trust declared by A. must necessarily expire with the shifting of the use to B. And if the trustee die and leave no heir, the lord who takes by escheat is not a privy to the estate upon which the trust was ingrafted, and therefore will not be bound by it, but will hold beneficially. And upon the same principle, if the trustee be disseised, the tortious fee is adverse to that impressed with the trust, and therefore the equitable owner cannot sue the disseisor in Chancery, but must bring an action against him at law in the name of the trustee.

*' During the system of uses, and also while trusts were in their infancy, the notion of privity of estate was not extended to tenant by the curtesy, or in dower, or by elegit, or in fact to any person claiming by operation of law, though through the trustee; but in this respeet the landmarks have since been carried forward, and at the present day a trust follows the estate into the hands of every one claiming under the trustee, whether in the per or post. A lord by escheat and a disseisor are the only persons not bound : the lord, because he claims by title paramount; a disseisor, because his possession is adverse.

"6. A trust is annexed in privity to the person. To entitle the cestui </ue trust to relief in equity, it is not only necessary he should prove the creation of the trust, and the continuance of the estate supporting it, but should also make it clear that the assign is personally privy to the equity, and therefore amenable to the subparmt. If it can be shown that the assign had actual notice, then, whether he paid a valuable consideration or not, he is plainly privy to the trust, anil bound to give it effect; but if actual notice cannot be proved, then, if he be a volunteer, the Court will affect him' with notice by presumption of law; but if he be a purchaser, the Court must believe, that, having paid the full value of the estate, he was ignorant, at the time he purchased, of another's equitable title. A purchaser for valuable consideration without notice is therefore the only assign against whom privity annexed to the person cannot at the present day be charged.

"6. Cestui que trust has no remedy but by subpoena in Chancery; and by Chancery must be understood, not exclusively the Court of the Lord Chancellor, but any Court invested with an equitable jurisdiction, as opposed to common law courts and spiritual courts, neither of which have any cognisanee in matters of trust. A common law court could never indeed, from the defective nature of its proceedings, have specifically enforced a trust; but at one time it affected to punish a trustee in damages for breach of the implied contract: an exercise of authority, however, clearly extra-provincial, and long since abandoned. Should a spiritual court attempt to meddle with a trust, the

[ocr errors][merged small]

Court of King's Bench might he moved to issue a prohibition."

In treating of the allowances made to trustees, Mr. Lewin adverts to the case of a solicitor or attorney, who, sustaining the character of a trustee, will not be permitted to charge for his time, trouble or attendance, but only for his actual disbursements. Lord Hardwkke, he observes, thought that an attorney might make the usual professional charges ;a but the contrary, he adds, has now been expressly decided in the "still unreported case of New v. Jones, cited 9 Jarm. Prec. 338." We take leave to say that this case, which was decided in the Exchequer on the 8th August, 1833, was reported at some length in the Legal Observer of the 28th September following, (see vol. 6, p. 410). Mr. Lewin, however, observes, that the rule against allowances to trustees is merely a general one, in the absence of express directions to the contrary; for there is no objection if the settlor himself choose to compensate the trustee for his services, either by the gift of a sum in gross, or by the allowance of a salary.b

Many parts of a subject so extensive as that of Trust6 and Trustees, have, of course, been ably handled by other writers, particularly that which relates to the creation and first principles of trust rights; but there is no book in which all parts of that subject have been thus brought together into one systematic whole; and it is no small recommendation of the work, that that portion of the law, in regard to which a treatise -was most wanted, — namely, the estate and office of trustees, and their rights, duties, and liabilities,—is most fully and ably executed. The work is throughout remarkuble for the care and research, which have left very few, if any, points unnoticed, and which are the more particularly evinced in the apt selection, and the accurate citation of authorities. It will be found useful also as a collection of principles, correctly stated, and supported by well-chosen extracts from the opinions of the most eminent judges. It contains several discussions also upon points still unsettled, such as rjie questions arising upon the separate use, in regard to which, though we may not ourselves concur in the opinion of the author, yet we cannot but give him credit, for distinctions properly pointed out, for general soundness of view, and very considerable legal acumen.

[ocr errors]

ON THE EXPENSES OF CORONERS.

To the Editor of the Lrgal Observer.
Sir'

Having for some time been a subscriber to your valuable journal, the Legal Observer, and on a former occasion been obliged by your inserting a communication made by me, I am induced lo trouble you with the following remarks, suggested by a notice in your publication of the 13th inst., respecting the expenses of coroners' inquests.

The bill now brought bofore parliament is a measure that was very much required, for since the new poor law act, the expenses attending inquests, which were formerly paid by the parish officers, have been altoiietherdisallowed: the consequence is, great difficulty often occurs in obtaining accommodation tor the coroner's court, as also the attendance of jurymen. For the most part, these juries are summoned from the working cUsses; and now that the shilling usually paid to each juryman for his loss of time has been done away with, it is with considerable difficulty that a jury can be collected. The proposed liquidation of those expenses, however, though reimbursed to the coroner by the county treusurer, under an order of two magistrates, is, for the time being, a further impost upon that officer, who, it is well known, does not receive from the county any reimbursement equal to his expenses. 1 speak more particularly as regards the northern counties, where that oilicer has great distances to travel in performance of his duties. The expenses of the jury ought to be paid by the overseer of the parish.

Several attempts have been made by the coroners to obtain an increase of their travelling expenses; and on the last application to parliament they only asked to have the 9</. per mile statutable allowance extended to their returning home again from the place of inquest. This measure was opposed by Mr. Wakley, who brought in a bill for the remuneration of medical witnesses, which passed into a law. By this act, a surgeon who is called in to give evidence before the'eoroner, although he merely attends from the adjoining house, and is not detained half an hour, is entitled to be paid two guineas, when the coroner, who has travelled 20 miles to that place, and may be detained nvo or three days, only receives U. 15*. This I know to be an occurrence not unusual, and forcibly shews the inequality of the remuneration received by tlie coroner, and that now paid to the attending surgeon. The coroner's fees do not, in most cases, reimburse him the expense out of pocket, much less pay him any ihinir for his fatigue, time, and the loss of other professional emolument in his absence from home. A further hardship has also fallen on the county coroners, by the municipal corporation act. Townships forming parts of counties have been annexed to borough towns, which has extended the jurisdiction of the borough coroner, and diminished that of the county coroner, hi these townships the

[merged small][ocr errors]

county coroner could hold inquests at a trifling sacri6ce of time and money: the places alluded to being generally near to his abode. The county coroner is now deprived of the benefit of any inquest holden there, and has left to him, without any compensation, the more distant parts of the county, where his duty is performed at greater expense, fatisrue, and inconvenience to himself. These are great causes of complaint; and the coroner has just claims to he put on a better footing as ro the emoluments of office, when any legislative measure relating to the office of coroner is brought before parliament.

The coroners of England and Wales ought never to rest until they have fair and equal justice done them; and they should call on every candidate at a general election, to bring their claims before the House, and advocate thtm to the best of his power, and, in the meantime, represent their case in as forcible a way possible to the members of their respective counties, in order that the subject may be submitted to the notice of the House when any measure relating to the coroners is before parliament. If you think proper to afford these observations a place in your journal, and can at all advocate the cause of these neglected officers of tin crown, you will confer a great favour on them collectively.

Veritas.

[In our last number we called the attention of the legislature to this subject. The present allowance to coroners was fixed 85 years ago, "when firf. a mile would procure a post-chaise -and a pair of horses, and the odd 3d. a mile, making the present 9</., perhaps pay the other expenses. This allowance, therefore, should surely be raised ; and, at any rate, the coroners should be exempted from tolls when going or returning from their duty. The committee on the bill has been postponed to the 30th, when we hope this matter will be fully considered, and that, at any rate, the bill will not be passed as a matter of course.—Ed.]

ON THE EXAMINATION OF BARRISTERS.

To the Editor of the Legal Observer.
Sir,

When I consider the anomaly that exists of sending young men up to the luns of Court to study the law, of which there are no professors to teach them,—an anomaly which exists only in this country, and which excites the surprise and wonder of all foreigners,—I feel certain that in the present age manv years will not pass away before steps are taken to remove it.

There is no more reason why any one should take the degree of barrister, without having attended some instructor in the laws, or given some little attention to the subject, than there is, that a man should take bis degree of 13. A. or M. A. without having once opened a book, or attended a class fur thai purpose.

I am not one of those however who cry out that this is a great abuse and ought to be reformed, and who think that the public suffer by its existence. On the contrary, I feel confident that the public itself would not be in any way benefited by it, more than it mediately is by any thing which benefits a particular class, who form a portion of it. For the case of barristers, who practise ignorant of law, cannot be confounded with that of doctors, ignorant of medicine; for the former, if wanting in necessary knowledge, meet with their own reward in a lack of employment; whereas the latter, called in to irive professional assistance, by persons wholly incapable of judging of their ability, might, if there were not some prior examination, or warrant of theirproper knowledge, do incaleulable injury to the public.—What is more common than when an accident happens to a man's limbs or body, to cull in the first doctor to cure him; but who would ever dream, in the case of an injury to his property, of calling in the first barrister he might meet to plead his case?

Such then being the difference between medical men and barristers, the public does not suffer by the present system, nor would it benefit, but mediately, by any change.

But the profession itself, to which I more particularly look, being but an unworthy member of it, would materially have cause to rejoice at a public system of instruction and examination, as affording to its members the means of distinguishing themselves in legal studies, which so many now pant for in vain; until, after years of useless toil, they turn disgusted from the fruitless pursuit, and with a bitter heart, and at no youthful period of life, find themselves compelled to select some new pursuit and means of existence. But many object to any particular examination, or any fixed routine of public studies, as tending to deprive the bar of those persons who now enrol themselves as members merely for the sake of an honourable profession; and they say that the bar will thus be degraded from that elevated situation which it holds in our country, and reduced to that inferior position in society, in which it stands in every other country, by causing all who enter it to do so with a strict view of following it up as a profession.

Were this to be the consequence of an examination and a public course of studies, I should hesitate before I became the advocate of them; but I cannot see why the same argument should not apply to Oxford and Cambridge, and prevent all men from going there who do not intend to become professors of learning.

I do not wish the examination for the degree of barrister to be in any ways stricter than the examination for a B. A., but the advantage I propose is, having a severer examination for those who court it, so that a man may have an opportunity of taking honours in legal learning, as in academical. And the "senior irrangler" will then be a title more appropriate than it is at present.

But in the mean time what is there to bin

« PreviousContinue »