48 Principles of Equity-Voluntary and Incomplete Settlements. VOLUNTARY AND INCOMPLETE SETTLE MENTS. IN the recent case of Bridge v. Bridge, 16 Beay. 320, the several decisions regarding voluntary and incomplete settlements were fully discussed and considered by the Master of the Rolls, and the effect of the several cases clearly pointed out. The general rule is thus stated by Lord Eldon in Ellison v. Ellison, 6 Ves. 662:-"I take the distinction to be, that if you want the assistance of the Court to constitute you a cestui que trust, and the instrument is voluntary, you shall not have that assistance for the purpose of constituting you cestui As upon a covenant to transfer stock, &c., if it rests in covenant and is purely voluntary, this Court will not execute that voluntary covenant; but if the party has completely transferred stock, &c., though it is voluntary, yet the legal conveyance being effectually made, the equitable interest will be enforced by this Court." This rule has been recognised and acted upon in all the subsequent cases, but a considerable diversity will be found amongst them, as to what does or does not constitute the relation of trustee and cestui que que trust. trust. In order to render the observations he was about to make more clear, his Honour said he would first exclude from them the consideration of all these cases, where the donor has created a debt in favour of a volunteer, as by executing a bond or a covenant to pay a sum of money. In these cases, though the obligee or the covenantee should be constituted trustee for the donee, and even if the trustee so constituted should decline to act or to enforce payment of the debt, the Court would enforce it as in the case of Fletcher v. Fletcher, 4 Hare, 67. In these cases the relation of trustee and cestui que trust was clearly complete, and the interposition of the trustee alone prevented the donee from enforcing payment of the debt at law, against the debtor or his representatives. The question before the Court depended upon those cases, where the donor professed to assign, for the be'nefit of the donee, some previously existing chose in action. His Honour said : trust. But if the same person executed an assignment of the stock in favour of the vo lunteer, and no transfer of the stock tookplace, this, I apprehend, would as clearly be considered to be no more than an imperfect gift, in which the donor had not done all that it was in his power to do, and the donee would get no assistance from a Court of Equity to compel a transfer of the stock. "On the other hand, if the stock stood in the names of trustees, and the beneficial owner of it executed, in favour of a volunteer, an assignment of such stock, and if notice of that assignment were given to the trustees, who acknowledged the validity of it, and acted upon it, they would thereupon, through the act of the beneficial owner become the trustees for the volunteer, and equity would enforce the due performance of that trust in his favour. able difficulty arises, but to what extent an as"Up to this point, I think that no considersignment of a chose in action by the beneficial owner, in favour of a volunteer, will be binding without such notice or such acts by the trustees, is, I think, doubtful on the authorities. They all proceed on this principle:- that the relation of trustees and cestuis que trust must be created between the persons who were before the asvolunteer assignee. Upon this principle, as signment trustees for the assignor and the Lord Cottenham observes, Sir William Grant proceeded in the case of Sloane v. Cadogan, 3 Sugd. Vend. 10th ed. app. 66, which has been the subject of so much comment, as did Sir John Leach in the case of Fortescue v. Barnett, 3 Myl. & K. 36. I "But with respect to the acts or circumstances which will make the relation, it is not, think, easy to reconcile all the authorities. In Meek v. Kettlewell, 1 Hare, 464, a most acute and careful Judge, after much consideration and a minute examination of all the authorities, decided, that where a person entitled to the contingent reversion of a fund vested in trustees on various trusts, assigned all her interest in that fund to her son-in-law, and declared the trusts of the assignment to be, in part for herself, and as to the residue to her son-in-law, but of which assignment no notice was given to the trustees, the relation of trustee and cestui que trust was not created, and that equity would not enforce or execute the trusts of that assignment, and this decision was affirmed on appeal by Lord Lyndhurst (1 Phill. 342). This, it is to be observed, was the asaction not communicated to the trustees, in signment of a mere expectancy in a chose in whom the legal interest was vested. "In Fortescue v. Bennett, (ubi suprà,) Sir John Leach held, that the voluntary assignment of a policy of assurance on the life of the assignor, of which no notice was given to the insurance office, entitled the assignees to the benefit of the policy. ་་ "If a person possessed of stock execute a declaration of trust of that stock in favour of a volunteer, he would, I apprehend, clearly In Antrobus v. Smith, 12 Ves. 39, Sir constitute himself a trustee for the volunteer, William Grant held, that an indorsement on a and equity would execute the trust and com- receipt for subscription to shares in the Forthpel a transfer of the stock to the cestui que and Clyde: Navigation, expressing that the 498 Principles of Equity.-Law of Attorneys and Solicitors. City of London Reform. donor thereby assigned them to his daughter, had been concerned for the plaintiff, and that not being a legal assignment, conferred no in- they should give credit therein for all sums of terest; and the same principle was followed by Lord Cottenham in Edwards v. Jones, 1 M. & money by them received of or on account of Cr. 226, with respect to a bond where the bond the plaintiff. No bill of costs or account was had been delivered to the assignee. rendered, and the plaintiff brought an action "In Blakely v. Brady, 2 Dr. & Walsh, 311, for the breach of duty cast on the defendant Lord Plunkett held, that an assignment of a note for a sum due to the donor from a third by the Statute to deliver his bill. In allowing person, accompanied with the delivery of the a general demurrer to the declaration, Parke, note to the donee, and the execution of an irre- B., said,—“It is said, that there is an implied vocable power of attorney, constituting the undertaking on the part of the attorney to dedonee his attorney for the recovery of the debt, liver his bill of costs upon a reasonable recreated the relation of trustee and cestui que trust, and enforced the execution of the trust quest; but this declaration does not contain against the legal personal representatives of any allegation of that kind. Then, it is the donor. further said, that this is not a mere interlocu"One of the latest cases on this subject is tory, but a final or collateral order. But in the case of Kekewich v. Manning, De G., Emerson v. Lashley, 2 H. Bl. 248, it was held, MN. & G. 176, before the Lords Justices. The case was this:-A lady entitled to the re- that an action would not lie to recover costs version in stock, subject to the life interest of ordered to be paid by a rule of an inferior her mother therein, and which stock was stand- Court in the course of a suit there, notwithing in the joint names of her mother and her standing the defendant might not be liable to daughter, assigned her interest in this stock on her marriage to trustees, in trust for her- an attachment of the inferior Court, by being self for life, remainder to her husband for resident out of its jurisdiction. The Court life, and after their decease, in trust for the there held, that the action would not lie, upon issue of the marriage, and the issue of a the ground that the proper remedy was by niece, according to appointment; and in default of issue of the marriage, in trust for the attachment. This case is not distinguishable niece of the settlor. No transfer of the fund from that of Emerson v. Lashley, where the took place, but the mother had notice of the order was quite as collateral and final as the settlement. There was no issue of the mar-present." Martin, B., observed, that “In Carpenter v. Thornton, 3 B. & Ald. 52, Dent v. riage, and the Court executed the trust in favour of the niece. Assuming that the deed, as regards her, was voluntary, and not supported by the marriage construction, which point, however, the Court did not decide, it is, I think, distinguishable in some respects from the other cases, where it was held that no relation of trustee, and cestui que trust existed; but if some of the expressions to be found in the judgment of the Judges, as there reported, are to be taken according to their full force, it is difficult to reconcile them with the decision in Beatson v. Beatson, 12 Sim. 281, and with Meek v. Kettlewell. In all these cases, however, the THE COMMISSIONERS' RECOMMENDATIONS. principle in Ellison v. Ellison, has been adopted, and the variation has been, as to the particular circumstances, which have been considered sufficient or insufficient to make the relation which will induce this Court to act." LAW OF ATTORNEYS AND SO- ACTION FOR DISOBEDIENCE TO ORDER FOR DELIVERY OF BILL OF COSTS UNDER 6 & 7 VICT. c. 73. A JUDGE's order was made under the 6 & 7 Vict. c. 73, s. 37, on the defendant and another attorney, for the delivery within 10 days to the plaintiff, or his attorney, of a bill of costs in all causes and matters wherein they CITY OF LONDON REFORM. THE following are the principal recommendations of the Commissioners for effecting the proposed reforms in the City of London : "1. That a new charter be issued, contain ing all such provisions in existing charters of the corporation of London, and all such cusTM toms of the city, as it may be deemed expedient to preserve. 2. That the Lord Mayor be elected by the common council, from the common councillors, or from persons qualified to be common councillors. "3. That the aldermen be elected by the burgesses of the ward for six years, and be reing their term of office. eligible; that they be justices of the peace dur 4. That the powers of the Municipal Cor poration Act with respect to the appointment on 50+ City of London Reform.-Law of Costs. stipendiary magistrates be extended to the corporation of London. "5. That the Court of Aldermen be abolished, and that its functions be transferred to the common council. "6. That the number of wards be reduced to some number not less than 12, nor greater than 16; and that their area and population be, as far as possible, made equal. "7. That each ward return one alderman and five common councilmen to the common council; and that their qualification be that prescribed by the Municipal Corporations Act for the larger class of boroughs; namely the possession of real or personal estate of 1,000l., or being rated on an annual value of at least 301. "8. That the voters in the wardmote elections be the occupiers of premises in the ward rated to the amount of 101. per annum, without any additional qualification. 9. That the elections in common hall be abolished. "10. That the sheriffs be elected by the common council. "11. That the Lord Mayor's Court and the Sheriff's Court be consolidated, and that an appeal be given from such Court to one of the Superior Courts at Westminster. "12. That the Court of Hustings be abolished. "13. That the Court at St. Martin's-leGrand be abolished. "14. That all regulations prohibiting persons not free of the city from carrying on any trade, or using any handicraft within the city be abolished. "15. That the metage of grain, fruit, and other measurable goods be no longer compulsory. "16. That the fellowship of porters be dissolved; and that other privileges of porters be abolished. "17. That the admission of brokers by the Court of Aldermen be abolished. "18. That the street toll on carts not the property of freemen be abolished. 19. That the city police be incorporated with the metropolitan police. "20. That the conservancy of the river Thames be transferred to a board consisting of the Lord Mayor, the First Lord of the Admiralty, the President of the Board of Trade, the Deputy Master of the Trinity House, and the First Commissioner of Woods. "21. That the exclusive privilege of the Company of Watermen and Lightermen on the river Thames be abolished. "26. That the Irish Society be dissolved; that its trusts be declared by Act of Parliament; and that new trustees be appointed by the Lord Chancellor of Ireland. "27. That the external boundaries of the city remain unchanged; but that the municipal connexion between the corporation of London and a part of the borough of Southwark be abolished. "28. That the rest of the metropolis be divided into districts, for municipal purposes. "29. That in the event of such division being made, a Metropolitan Board of Works be created, composed of members deputed to it from the council of each metropolitan municipal body, including the common council of the city. "30. That the coal duties now collected by the corporation of London, so long as they remain in force, be under the administration of this board; and that in case the coal duties which expire in 1862 should not be renewed, the 4d. duty now levied on behalf of the city should cease at the same time. "31. That this board be empowered to levy a rate, limited to a fixed poundage, for public works of general metropolitan utility, over the metropolitan district. "32. That no works be executed by this board unless the plans have been approved by a committee of the Privy Council." LAW OF COSTS. OF PURCHASER UNDER DECREE WHERE TITLE DEFECTIVE. On the title being defective to an estate sold in a cause, held that the purchaser was entitled to payment out of the fund in Court of his costs, charges, and expenses properly incurred, occasioned by his bidding for and becoming the purchaser of the lot in question, and also his costs of the reference as to title, and of all proceedings consequent thereon, including his costs of and occasioned by the plaintiff's exceptions to the Master's' report and the order thereon, and of the application by the purchaser for his discharge and consequent thereon. Lewis v. Lewis, 9 Law J., N. S., Ch., 176, was cited. Perkins v. Ede, 16 Beav. 268. FORM OF CONVEYANCE. "22. That the accounts of the revenue and OF FRIVOLOUS SUIT BY PURCHASER AS TO expenditure of the corporation be consolidated. "23. That the money and securities of the corporation be lodged in the Bank of England. 24. That the election of auditors be amended. "25. That the provisions of the Municipal Corporation Acts, with respect to the mortgaging of lands, and the making of an annual return of revenue and expenditure to the Secretary of State, be extended to the corporation of London. The only question in a suit by a purchaser for specific performance was as to the form of the conveyance, the Master of the Rolls said, "This is on both sides as idle a contest as I ever knew brought into a Court of Justice. As far as I have been able to understand the matter, no injury would have arisen to either 51 Points in Equity Practice.-Chancery Returns to Parliament. Trinity Term Exam. party by having the conveyance in one form TRINITY TERM EXAMINATION... or the other." His Honour therefore declined to give costs on either side, although the plaintiff was entitled to a decree to have the conveyance in the form he asked. Clark v. May, 16 Bear. 273. POINTS IN EQUITY PRACTICE. THE Examiners appointed for the examina-> tion of persons applying to be admitted Attorhalf-past nine in the forenoon, at the Hall of neys, have appointed Tuesday, the 6th June, at the Incorporated Law Society, in Chancery Lane, to take the examination. The Articles of Clerkship and Assignment, if any, with answers to the questions as to APPEAL FROM DECREE. INTERLOCUTORY due service, according to the regulations ap APPLICATION.-LACHES. proved by the Judges, must be left at the Law Society on or before Wednesday, the 31st instant at the Law Society. Where the articles have not expired, but will examined conditionally; but the articles must expire during the Term, the Candidate may be be left within the first seven days of Term, and WHERE a decree has been made, and an appeal is brought long after the decree, the Court always leans against the appeal, and this principle applies in my opinion much more strongly to the case of an interlocutory application." Per Turner, L. J., in Great answers up to that time. If part of the Term Western Railway Company v. Oxford, Worcester, and Wolverhampton Railway Company, 3 De G., M'N. & G. 363. JURISDICTION ON PETITION BY TRUSTEES 56; A sum of money was standing in the joint names of the three trustees of a friendly society established under the 10 Geo. 4, c. 4 & 5 Wm. 4, c. 40; and 9 & 10 Vict. c. 27. The society was dissolved as directed by those Statutes, but one of the trustees refused to join with the two others to withdraw the fund for distribution among the members. On a petition for the appointment, under the 15 & 16 Geo, 4, c. 56, s. 15, of a person to transfer, on behalf and in the name of the dissentient trustee, the fund to the two other trustees, the Vice-Chancellor Wood held he had no jurisdiction, and that the application must be by suit in the usual way. In re Eclipse Mutual Benefit Association, 1 Kay, xxx. CHANCERY RETURNS TO PAR- ORAL EVIDENCE. has been served with a Barrister, Special questions must be obtained from them, as to Pleader, or London Agent, answers to the the time served with each respectively. A Paper of Questions will be delivered to each Candidate, containing questions to be answered in writing, classed under the several heads of-1. Preliminary. 2. Common and Statute Law, and Practice of the Courts. 3. Conveyancing. 4. Equity, and Practice of the Courts. 5. Bankruptcy, and Practice of the Courts. 6. Criminal Law, and Proceedings before Justices of the Peace. Each Candidate is required to answer all the Preliminary Questions (No. 1); and also to answer in three of the other heads of in quiry, viz. :-Common Law, Conveyancing, and Equity. The Examiners will continue the practice of proposing questions in Bankruptcy and in Criminal Law and Proceedings before Justices of have given their attention to those subjects, may the Peace in order that Candidates who may have the advantage of answering such questions, and having the correctness of their answers in those departments taken into consideration in summing up the merit of their General Examination. Under the new Rules of Hilary Term, 1853, it is provided that every person who shall have given notice of Examination and Admission, and "who shall not have attended to be examined, or not have passed the Examination, THE number of causes in the High Court of or not have been admitted, may within ONE Chancery, whether commenced by bill or claim, WEEK after the end of the Term for which such in which the evidence was taken orally, be- Notices were given, renew the Notices for Extween the 1st November, 1852, and 1st No-amination or Admission for the then next envember, 1853, was 96. suing Term, and so from time to time as he shall think proper;" but shall not be admitted until the last day of the Term, unless otherwise ordered.' And the number of causes, whether commenced by bill or claim, in which any witness or party was examined therein under the 15 & 16 Vict. e. 86, s. 39, before the Court when such causes were heard, for the same period, was 12. This rule has been made in order to avoid the practice of giving double notices. 52 Notes of the Week.-Superior Courts: V. C. Kindersley.-V. C. Wood. NOTES OF THE WEEK. INQUIRY INTO THE INNS OF COURT AND THE Commissioners are directed to inquire into the arrangements in the Inns of Court and Inns of Chancery, for promoting the Study of the Law and Jurisprudence, and securing a sound education to the students. It appears that they have already commenced their labours by sending a circular to the Principal of each Inn of Chancery, requesting a statement of the existing arrangements, for promoting the study of the Law, and particularly as to any lectures, examinations, or library; and the regulations in respect to the admission thereto. As the members of these Inns of Chancery are almost entirely attorneys and solicitors, we presume they will claim the ancient rights and privileges which belonged to them, and take their proper position in the proposed University of the Law. We shall take an early opportunity of adverting to their former state, and considering the improvements which may be effected for the benefit of the larger branch of the Profession. SCOTCH LAW APPOINTMENTS. The Queen has been pleased to nominate and appoint John Deas, Esq., one of the Lords of Session, to be one of the Lords of Justiciary in Scotland, in the room of Henry Cockburn, Esq., deceased. The Queen has been pleased to grant the place of one of the Lords of Session in Scotland to Charles Neaves, Esq., Advocate, in the room of Henry Cockburn, Esq., deceased. From the London Gazette of May 16. RECENT DECISIONS IN THE SUPERIOR COURTS. Vice-Chancellor Kindersley. In re Turner's Estate, exparte Oxford and RAILWAY COMPANY.-PAYMENT OF PUR- On a petition for payment of the purchase- Vice-Chancellor Wood. Darlington v. Hamilton. April 25, 1854. SPECIFIC PERFORMANCE OF CONTRACT FOR Where, on a sale of the lease of a house sub- THIS was a petition for the payment out of Court of the purchase-money of certain lands taken for the purposes of the above railway, By the conditions of sale of the lease of and which had been paid into the bank under a house in Upper Albany Street, Regent's the 8 & 9 Vict. c. 18, s. 76, upon the mort- Park, the purchaser was precluded from ingagees thereon refusing to take a partial sisting upon the production of the lessor's payment. It appeared that the owner had died title. It appeared, however, from the abstract after entering into the contract with the com- that the house was held on an under-lease, and pany, and had charged the estate with payment of certain legacies subject to the mortgage. Browell, in support, contended that the company were liable to the costs of the legatees who had been served with the petition, as the purchase-money was of the nature of realty, citing In re Horner's Trust, 5 De G. & S. 483. Stevens for the railway company, contrà; Hawkins for the mortgagees; Bathurst for the legatees. The Vice-Chancellor said, that as the sale was by a tenant in fee, the money was not realty, and that the company were only liable to the costs of the petitioners and of the mortgagees-the costs of the legatees to be paid by the petitioners. that the original lease included other property besides the house in question, and was liable to forfeiture by breaches of covenant in respect of other portions of the property comprised therein by the several holders. The defendant accordingly refused to complete, whereupon this bill was filed for a specific performance. Grenside in support, on the ground that the covenants, as well as the rent had been apportioned among the several properties. The Vice-Chancellor (without calling on Rolt and Selwyn for the defendant) said, that it did not appear the covenants, upon the breach of which the lease would be forfeited, were capable of being apportioned, and the doctrine of notice in the case of the purchase of a lease did not apply. The title was not one which a purchaser could be compelled to |