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On the Construction of the New Statute of Limitations.Practical Points.

53

claim and title to the annuity. That the unprovided for by the statute. For the case must have been governed by the 2d | third class of instances enumerated in sec. section, if that section had stood alone, 3, describes the grant to be by a person cannot be doubted; and, upon a more close being in respect of the same estate or in. examination of the 3d section, the object terest in the possession or receipt of the pro, and intent of it seem to us to be no more fits of the land, or in the receipt of the rent,' than this: to explain and give a con- a description which can neither apply to the struction to the enactment contained in the case of a devisee of a particular estate in second clause, as to the time at which the land, or of a newly created rent; for the right to make a distress for any rent shall devisor who has by his will carved an esbe deemed to have first accrued,' in those tate in land out of the estate whereof he cases only in which doubt or difficulty might was seised, can never be said to have been occur; leaving every case which plainly possessed in respect of the sume estate or falls within the general words of the 2d interest as that claimed by the devisee; still section, but is not concluded amongst the less can the devisor who creates a new rent instances given by the 3d, to be governed charge by his will, be said to have been in by the operation of the 2d. Many reasons the receipt of the rent. The case therefore concur to shew that such must be the just under discussion, not falling within the 3d construction of the Act. In the first place, section, but falling within the clear and if it had been intended that the 3d section unambiguous terms of the 2d, we hold to be should limit the application of the 2d to governed thereby; that the claim and title those cases, and those only, which are of the defendant Salter to the annuity, is enumerated in the 3d, it might justly have barred by the lapse of twenty years, since his been expected that words would have been right to distrain first accrued; and that the employed to express clearly and distinctly verdict upon this issue must be returned for such an intention. But in this section there the plaintiff.”a are no words that can be said directly to exclude all instances, except those enumerated in the 3d section. Again, if the words PRACTICAL POINTS OF GENERAL 'granted by any instrument other than by

INTEREST. 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 |

WHAT WAGERS ARE ILLEGAL. would be at direct variance with other parts A Wager in not illegal unless contrary of the statute, for the instance in the 3d to morals or public policy, Good v. Elliott, 3. section, immediately following that now un- T. R. 693; De Costa v. Jones, Cowp. 729. der consideration, which provides for cases Thus a wager upon the event of a suit at of claims in respect of estates in reversion law, has been held legal, Jones v. Randall, or remainder, - or other future estates or Cowp. 17. A wager upon the event of an interests,' is large enough to comprehend election, is illegal, as it might lead to bribery, and would comprehend all executory de- Allen v, Hearn, 1 T. R. 56 So also a vises ; and again, sec. 40 expressly provides wager by which A. was to receive from B. for the case of any legacy. And indeed, 100 guineas on the 31st of May, 1802, in the words, ‘by any instrument other than consideration of paying to him a guinea aby will,' carry the matter no further than if day as long as Napoleon Buonaparte, then the 3d section had proceeded by attempting first consul of the French republic, should to enumerate every species of instrument by live, was held void on the grounds of imwhich an estate in land or rent could have morality and impolicy, Gilbert v. Sykes, 16 been granted, and had omitted to mention East, 150. The point most recently disa will, in which case the only inference that cussed on this subject has been, whether a could be drawn from such omission would wager on the price of foreign stocks is not have been, that the case not being enume- illegal by statute or common law. We have rated in the 3d section, fell back upon the recently stated the cases on the construction general provision contained in the 2d. In- of the Stock Jobbing Act, 7 Geo. 2, c. 8, deed, unless this is held to be the true con- in which it has been held that the Act does struction, the case which is likely to occur not extend to what is called stock -jobbing perhaps with the most frequency, viz. the in the foreign funds, Wells v. Porter, 2 Bing. devise of an estate in possession in land, or | 722, N. C.; and Oakley v. Rigby, 2 Bing. of an estate in possession in a rent charge first created by the will, would be altogether

James v. Sulter, 3 Bing. 544, N. C.

54 Notices of Neu Books: Lewin on the Law of Trusts and Trustees. 732, N. C., stated 12 L. 0. 218; and ittee, 14. The devolution and properties of has recently been held that a wager on the legal estate in the trustee. 15. The the price of foreign stocks is not illegal. | general properties of the office of trustee. In the case of Paterson v. Powell, 9 Bing. 16. Duties of trustees of chattels personal. 320, an engagement in consideration of 17. Duties of trustees of renewable leaseforty guineas to pay one hundred pounds in holds. 18. Duties of trustees to preserve case Brazilian shares should be done at a contingent remainders. 19, Duties of truscertain sum on a certain day, subscribed by tees for sale. 20. Duties of trustees of several persons, each for themselves, was charities. 21. The powers of trustees. held a policy of insurance, and void under 22. Of allowances to trustees. 23, How the 14 Geo. 3, c. 48; but with respect to a trustee may relinquish his office, the wager, Tindal, C. J. said, unless we were The Third Part treats of the estate of the to give a judgment contrary to all the de- cestui que trust, under the following subcisions, from Good v. Elliott down to the divisions: 24. In what the estate of cestui present time, we have no right to say that que trust consists. 25. The properties of a wager on the price of foreign stock is void cestui que trust's estate. 26. Cestui que trust's at common law. At common law wagers relief against the failure of the trustee. 27. are not illegal, except such as involve a The rights of cestui que trust in prevention breach of law or morals, or affect the public of a breach of trust. 28. Remedies of cestui policy of the country ; but as I do not con- que trust in event of a breach of trust. ceive any such consequences necessarily re- 29. Maxims of equity for sustaining the sulting from this wager, I see no ground on true character of the trust estate against which it is void at common law. Morgan v. the laches or tort of the trustee. Pebrer, 3 Bing. N. C. 457.

| As an example of Mr. Lewin's style and

manner, we select his definition of trusts, NOTICES OF NEW BOOKS, which contains passages that may be use

| ful to some of our readers. A Practical Treatise on the Law of frusts

and Trustees. By Thomas Lewin. Esa. “A trust cannot be more exactly defined of Lincoln's Inn, Barrister at Law. Lon

than in the terms employed by Lord Coke for don : A. Maxwell, 1837.

the definition of a use, viz. A confidence reThis is an able work on Trusts and Trus- but as a thing collateral, annexed in privity to

posed in some other, not issuing out of the land, tees,-a branch of the law of great extent the estate of the land, and to the person touching and practical importance. We think the the land, for which cestui que use has no remedy Author has bestowed great pains in its but by subpæna in chancery. composition, and that it is entitled to rank “l. It is a confidence ; not necessarily a conamongst the standard works of the profes- |

| fidence expressly reposed by one party in

another, for it may be raised by implication of sion. After an introductory view of the rise la

of the rise law; nor need the trustee of the estate be ucand progress of Trusts, Mr. Lewin arranges tually capable of confidence, for the capacity the materials of his subject in the following itself may be supplied by legal fiction, as where method :

| the administration of the trust is committed to The First Part treats of the Definition, I a body corporate ; but a trust is a confidence, Distribution, and Creation of Trusts, under as distinguished from jus in re and jus ad rem, the heads of: 1. Definition of a trust.

for it is neither a legal property, nor is it a legal 2. The different kinds of trusts. 3. The phant to property.

"he " 2. It is a confidence reposed in some other ; creation of trusts by the act of a party, and not in some other than the author of the trust, who may declare a trust. 4. The forma- for a person may convert hijnself into a trustee, lities to be observed in the creation of but in some other than the cestui que trust; trusts. 5. In what words, a trust may be for as a man cannot sue a subpana against himdeclared. 6. Who may be trustee. 7. of self, he cannot be said to hold upon trust for vesting the legal estate in the trustee. 8. |

himself. If the legal and equitable interests

: | happen to meet in the same person, the equitWho may be cestui que trust. 9. What Lab

9. Whatable is for ever absorbed in the legal; as if A. die consideration will support the trust. 10. Of seised of the legal estate ex parte paterni, and the object proposed by the trust. 11. of the equitable ex parte materna, the heir of Creation of trusts by act or operation of the maternal line has no equity against the law.

heir of the paternal. The Second Part relates to the estate! “But the rule holds only where the legal and and office of a trustee, and comprises : 12.1.

| equitable estates are co-extensive and com. The disclaimer and acceptance of the trust. l estate in fee, and have only a partial equitable

mensurate ; for if a person be seised of the legal 13. What estate will be vested in the trus-interest, to merge the one in the other might

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

55

lead to a violation of rights : as if lands be | tate, that is, must stand or fall with the interest conveyed to A. and his heirs, in trust for B. in of the person by whom the trust is created; tail, with remainder to A. in fee, should the as, if tenant for life declare a trust in fee, equitable remainder limited to A. be converted the determination of the life estate must put into a legal estate, it would not be barrable by an end to the trust. And so, if lands be li: B.'s equitable recovery. Lord Alvunley upon mited to A. and his heirs, with a springing use this case observed— The objection to the to B. and his heirs, a trust declared by A. recovery is, that at the time it was suffered the must necessarily expire with the shifting of the remainder in A. was not an equitable, but a use to B. And if the trustee die and leave no legal remainder; and therefore, according to heir, the lord who takes by escheat is not a the doctrine established in this court that in privy to the estate upon which the trust was order to make a good equitable recovery the ingrafted, and therefore will not be bound by remainders must be equitable, the recovery is it, but will hold beneficially. And upon the void as to him. It was maintained that where same principle, if the trustee be disseised, the there is in the same person a legal and equitable tortious fee is adverse to that impressed with interest, the former absorbs the latter. I ad- the trust, and therefore the equitable owner mit that where he has the same interest in both, I cannot sue the disseisor in Chancery, but must he ceases to have the equitable estate, and has bring an action against him at law in the name the legal estate, upon which the Court will not of the trustee. act, but leaves it to the rules of law; but I do “During the system of uses, and also while not by any means admit, that, where he has the trusts were in their infancy, the notion of priwhole legal estate and a partial equitable estate, vity of estate was not extended to tedant by the latter sinks into the former. It has been the curtesy, or in dower, or by elegil, or in very ably argued, that there seems an absurdity fact to any person claiming by operation of in saying he had an equitable remainder for law, though through the trustee; but in this himself, where he had the whole legal fee ; but respect the landmarks have since been carried it is much inore absurd to say, he had a legal forward, and at the present day a trust follows remainder. It is impossible it would be a the estate into the hands of every one claiming solecism—to state to a lawyer that he could under the trustee, whether in the per or post. have an estate in fee with a remainder in tail A lord by escheat and a disseisor are the only expectant in law upon it; but there is no such persons not bound : the lord, because he claims absurdity in saying he might have the whole by title paramount; a disseisor, because his legal estate, and a limited interest in the bene. I possession is adverse. ficial interest of that estate. When I am told “5. A trust is anneved in privity to the person. that legal and equitable estates cannot subsist To entitle the cestui que trust to relief in in the same person, it must be understood equity, it is not only necessary he should always with this restriction--that it is the same prove the creation of the trust, and the contiestate in law and in equity; for then there is no nuance of the estate supporting it, but should person upon whom the Court can act-the also make it clear that the assign is personally equitable estate is absorbed-the better phrase privy to the equity, and therefore amenable to is, that it no longer exists : but when for the the subpæna. If it can be shown that the purposes of justice it is necessary it should assign had actual notice, then, whether he paid exist, that circumstance shall not put a party a valuable consideration or not, he is plainly entitled into a worse condition.'

privy to the trust, and bound to give it effect; “In the case of a mortgage, in fee it is said a but if actual notice cannot be proved, then, if man and his heirs are trustees for himself and he be a volunteer, the Court will affect him' his executors; but the meaning is no more with notice by presumption of law; but if he than this, that, until a release, or foreclosure be a purchaser, the Court must believe, that, of the equity of redemption, the interest of the having paid the full value of the estate, he was mortgagee is of the nature of personalty, and ignorant, at the time he purchased, of another's passes on his death to his personal representa equitable title. A purchaser for valuable contires ; the heir, therefore, takes the estate uponsideration without notice is therefore the only trust for the executor ; a release or foreclosure, / assign against whom privity annexed to the unless it happen in the lifetime of the mort person cannot at the present day be charged. gagee, comes too late after his decease to alter 6. Cestui que trust has no remedy but by sub. the character of the property, for, as the tree pæna in Chancery; and by Chancery must be falls, so it must lie.

understood, not exclusively the Court of the 3. A trust is not issuing of the land, but I Lord Chancellor, but any Court invested with as a thing collateral to it. A legal charge, as aan equitabie jurisdiction, as opposed to comrent, issues directly out of the land itself, and mon law courts and spiritual courts, neither of therefore binds every person, whether in the which have any cognisanee in matters of trust. per or post, whether a purchaser for valuable A common law court could never indeed, from consideration or volunteer, whether with notice the defective nature of its proceedings, have or without; but a trust is not part of the land, specifically enforced a trust; but at one time but an incident made to accompany it, and it affected to punish a trustee in damages for that not inseparably, but during the continu breach of the implied contract: an exercise of ance only of certain indispensable adjuncts, authority, however, clearly extra-provincial, for

and long since abandoned. Should a spiritual “4. A trust is annexed in privity to the escourt attempt to meddle with a trust, the

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Notices of New Books.-Expenses of Coroners.

Court of King's Bench might be moved to ON. THE EXPENSES OF CORONERS. issue a prohibition."

In treating of the allowances made to To the Editor of the Lrgal Obserrer. trustees, Mr. Lewin adverts to the case of

Sir, a solicitor or attorney, who, sustaining the Having for some time been a subscriber to character of a trustee, will not be permitted your valuable journal, the Legal Observer, and to charge for his time, trouble or attendance, on a former occasion been obliged by your inbut only for his actual disbursements. Lord serting a communication made by me, I am

ardwicke he observes thought that an induced to trouble you with the following reattorney might make the usual professional

marks, suggested by a notice in your publica

tion of the 13th inst., respecting the expenses charges ;a but the contrary, he adds, has

of coroners' inquests. now been expressly decided in the still un- |

The bill now brought before parliament is a reported case of New v. Jones, cited 9 Jarm. Ineasure that was very much required, for since Prec. 338." We take leave to say that the new poor law act, the expenses attending this case, which was decided in the Exche- inquests, which were formerly paid by the quer on the 8th August, 1833, was reported parish officers, have been altogetherdisallowed:

server of the consequence is, great difficulty often ocat some length in the Legal Observer of the

curs in obtaining accommodation for the cothe 28th September following, (see vol. 6,

roner's court, as also the attendance of juryp. 410). Mr. Lewin, however, observes, men. For the most part, these juries are sumthat the rule against allowances to trustees moned from the working classes, and noir is merely a general one, in the absence of that the shilling usually paid to each juryman express directions to the contrary; for there for his loss of time has been done away with, is no objection if the settlor himself choose

it is with considerable difficulty that a jury can to compensate the trustee for his services,

be collected. The proposed liquidation of

those expenses, however, though reimbursed either by the gift of a sum in gross, or by

to the coroner by the county treasurer, under the allowance of a salary.b

an order of two inagistrates, is, for the time Many parts of a subject so extensive as being, a further impost upon that officer, who, that of Trusts and Trustees, have, of course, it is well known, does not receive from the been ably handled by other writers, parti-county any reimbursement equal to his excularly that which relates to the creation which relates to the creation penses. I speak inore particularly as regards

the northern counties, where that officer has and first principles of trust rights; but there

great distances to travel in performance of his is no book in which all parts of that subject duties. The expenses of the jury ought to be have been thus brought together into one paid by the overseer of the parish. systematic whole; and it is no small re- Several attempts have been ipade by the commendation of the work, that that par- coroners to obtain an increase of their traveltion of the law, in regard to which a treatise ling expenses ; and on the last application to was most wanted, -namely, the estate and parliament they only asked to have the 9d.

al per mile statutable allowance extended to their office of trustees, and their rights, duties, and per

returning home again from the place of inliabilities,- is most fully and ably executed.

quest. This measure was opposed by Mr. The work is throughout remarkable for Wakley, who brought in a bill for the rethe care and research, which have left muneration of medical witnesses, which passed very few, if any, points unnoticed, and into a law. By this act, a surgeon who is called which are the more particularly evinced in to give evidence before the coroner, although

ita. Ihe merely attends from the adjoining house, in the apt selection, and the accurate cita.

and is not detained half an hour, is entitled to tion of authorities. It will be found useful ar

be paid two guineas, when the coroner, who also as a collection of principles, correctly has travelled 20 iniles to that place, and may stated, and supported by well-chosen ex- be detaineid two or three days, only receives tracts from the opinions of the most eminent | 11. 158. This I know to be an occurrence not judges. It contains several discussions unusual, aud forcibly shews the inequality of also upon points still unsettled, such as the remuneration received by the coroner, and the questions arising upon the separate that now paid to the attending surgeon. The

coroner's fees do not, in inost cases, reimburse use, in regard to which, though we may

him the expense out of pocket, much less pay

te him any thing for his fatigue, tiine, and the author, yet we cannot but give him credit, loss of other professional einolument in his fur distinctions properly pointed out, for absence from home. A further hardship has general soundness of view, and very consi

dness of view. and very consi. also fallen on the county coroners, by the muderable legal acumen.

nicipal corporation act. Townships forming parts of counties have been annexed to borough

towns, which has extended the jurisdiction of a Ayliffe v. Murruy, 2 Atk. 58.

the borough coroner, and diminished that of b Rubinson v. Pell, 3 P. W. 250,

the county coroner. In these townships the

not

Expenses of Coroners. On the Examination of Barristers.

57

county coroner could hold inquests at a trilling I am not one of those however who cry out sacrifice of time and inoney: the places al. that this is a great abuse and ought to be reluded to being generally near to bis abode. The forined, and who think that the public suffer county coroner is now deprived of the benefit by its existence. On the contrary, I feel conof any inquest bolden there, and has left to fident that the public itself would not be ja him, without any compensation, the inore any way benefited by it, more than it medistant parts of the county, where his duty is diately is by any thing which benefits a partiperforined at greater expense, fatigue, and in- cular class, who form a portion of it. For the convenience to himself. These are great causes case of barristers, who practise ignorant of of complaint; and the coroner has just claims law, cannot be confounded with that of docto be put on a better footing as to the emolu. tors, ignorant of medicine; for the former, if ments of office, when any legislative measure wanting in necessary knowledge, meet with relating to the office of coroner is brought be their own reward in a lack of employment; fore parliament.

whereas the latier, called in to give prosesThe coroners of England and Wales ought sional assistance, by persons wholly incapable never to rest until they have fair and equal of judging of their ability, might, if there were justice done them; and they should call' on not some prior examination, or warrant of erery candidate at a general election, to bring their proper knowledge, do incalculable injury their claims before the House, and advocate to the public. -What is more common ihan them to the best of his power, and, in the mean when an accident happens to a man's limbs or time, represent their case in as forcible a way body, to call in the first doctor to cure him ; possible to the members of their respective but who would ever dream, in the case of an counties, in order that the subject may be sub injury to his property, of calling in the first mitted to the notice of the House when any barrister he might meet to plead his case ? measure relating to the coroners is before par. Such then being the difference between meJiament. If you think proper to afford these dical men and barristers, the public does not observations a place in your journal, and can suffer by the present system, nor would it beat all advocate the cause of these neglected nefit, but mediately, by any change. officers of the crown, you will confer a great But the profession itself, to which I more favour on them collectively.

particularly look, being but an unworthy mem

Veritas. ber of it, would materially have cause to reIn our last number we called the attention joice at a public systein of instructivn and of the legislature to this subject. The present

examination, as affording to its members the allowance to coroners was fixed 85 years ago,

means of distinguishing themselves in legal "when 6d. a mile would procure a post-chaise

studies, which so many now pant for in vain; and a pair of horses, and the odd 3d. a mnile,

until, after years of useless toil, they turn dismaking the present 9d., perhaps pay the other

gusted from the fruitless pursuit, and with a expenses. This allowance, therefore, should

bitter heart, and at no youthful period of life, surely be raised; and, at any rate, the coroners

find themselves compelled to select some new should be exeinpted from tolis when going or

pursuit and means of existence. But many returning from their duty. The committee on

object to any particular examination, or any the bill has been postponed to the 30th, when

fixed routine of public studies, as lending to we hope this matter will be fully considered,

deprive the bar of those persons who now enand that, at any rate, the bill will not be passed

rol themselves as members merely for the sake as a matter of course. -Ed.]

of an honourable profession; and they say that the bar will thus be degraded from that elevated situation which it holds in our coun

try, and reduced to that inferior position in ON THE EXAMINATION OF

society, in which it stands in every other counBARRISTERS.

try, 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 exTo the Editor of the Legal Observer.

amination and a public course of studies, I Sir,

should hesitate before I became the advocate When I consider the anomaly that exists of of them; but I cannot see why the same argusending young men up to the lons of Court to ment should not apply to Oxford and Cainstudy the law, of which there are no professors bridge, and prevent all men from going there to teach them,--an anomaly which exists only who do not intend to become professors of in this country, and which excites the surprise | learning. and wonder of all foreigners,—I feel certain I do not wish the examination for the dethat in the present age many years will not gree of barrister, to be in any ways stricter pass away before steps are taken to remove it. than the examination for a B. A., but the ad

There is no more reason why any one should vantage I propose is, having a severer examitake the degree of barrister, without having nation for those who court it, so that a man attended some instructor in the laws, or given may have an opportunity of taking honours in some little attention to the subject, than there legal learning, as in acadeinical. And the is, that a man should take his degree of B. A.“ senior wrangler" will then be a title more or M. A. without having once opened a book, appropriate than it is at present. or attended a class for that purpose.

I But in the mean time what is there to hin.

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