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would have been the question of title (as against the true owner) to goods purchased at the fairs to which the merchants were accustomed to travel for trade purposes. But it is impossible to say that European law concurred with the English law of market overt upon the subject.
If there is any one point in the law of “ negotiable securities” about which we might have expected unanimity, it would be as to title to them when passed by a thief or a finder. What the French law upon the subject was I have endeavored elsewhere to show.1 It had no resemblance whatever to that of England.
If there is any other point in the law of bills about which agreement would be expected, it would be that which (with us) declares that a transferee after maturity takes subject to existing equities. But in France that never was the law.' The Germans do not agree with either of us. 3
And for coup de grâce let me quote from the Lex Mercatoria, in which it is said that the customs as to bills:
“In their formation, times of running, and falling due, days of grace, &c., are almost as various as each European nation from one another."
What else could they be? With lay judges; no records. no law books (or next to none); facts, customs and laws, all jumbled together; little communication; no consultationcustoms as various as the nations? Yes, as various as the county towns, or as one pepoudrous judge's notions from those of the other unskilled temporary adjudicators, with not even a Coke to help them.
Had I more space I would proceed to treat of several points still requiring explanation, but I must content myself with suggestion :
1. My notions seem to necessitate an inversion of generally assumed order; for have I not put courts first, and the law that they are to administer as something subsequent? Yes, I have done so; and that is perfectly right. The other theory: that there was a common law, an equity,
235 Am. Law Review, 722, ff.
2“ L'endossement entraîne les mêmes conséquences qu'il soit anterieur ou posterieur a l'échéance.” Lyon-Caen and Renault, s. 1094.
3 See Law of 5 June, 1869, sec. 16. *p. 561.
a law merchant first, and then courts established to apply them, is not only unhistoric, but, save in the very simplest of social relations, quite impossible.
“ It must be remembered that although we are naturally inclined to think of law as coming first, and courts being afterwards created to administer the law, it is really courts that come first, and that by their actions build up law, partly out of customs observed by the people, and partly out of their own notions of justice.”!
2. Read Maine's Ancient Law (31-33) as to the “in nubibus ” law, which courts are supposed in some mysterious way to precipitate out of the clouds into library receptacles. And reflect a little on the sentence:
“We do not admit that our tribunals legislate ; we imply that they have never legislated ; and yet we maintain that the rules of the English Common Law, with some assistance from the Court of Chancery and from Parliament, are coextensive with the complicated interests of modern society." A most impudent pretender, that Common Law, I think.
3. And observe this paragraph extracted from a very good book:
*The proper idea of a rule of law is that it is an attempt to sum up current opinion upon a class of cases. The possibility of constructing these rules, however, depends on two distinct faculties: the faculty of observation and the faculty of expression.” To which faculties the courts preposterous—I mean pepoudrous—had not the slightest claim. Coke and his century and half of successors may have had them, but did not use them. Lord Mansfield, and not any pepoudrous predecessor “may be said to be the father of the commercial law,"3 the father par excellence; but of course the family has been much extended since his day.
“ Market law has long exercised and still exercises a dissolving and transforming influence.
The wish to establish as law that which is commercially expedient is plainly visible in the recent decisions of English courts of justice.'
"Legal rules must ever be adjusting themselves to the requirements of human relations.” 5
Bryce's Studies in Hist. & Jur. 79.
Per Buller, J. in Lickbarrow v. Mason (1787), 2 T. R. 63.
4. The Law Merchant, it is suggested, is still in existence.
May we not yet have hope in the lineotype? or, happy thought, that Marconi may some day, unsuspectingly, catch the thing? If emanations can reach him from anywhere, why not from everywhere? why not from the home of Teufelsdröch-Weissnichtwo ? 1
JOHN S. EWART.
[Through the courtesy of the Editors of The REVIEW I have had the pleasure of reading Mr. Ewart's very interesting article, and am permitted to add a word of comment. It is, indeed, an article calculated to add to the gaiety of nations, even though it was intended to knock the Law of Nations into a cocked hat. I have laughed heartily at its sallies of wit, and been dazzled, if not enlightened, by its rhetorical pyrotechnics, but I do not see that it calls for a serious reply.
It may have been very inconsiderate of the ancient law merchant not to submit itself to the lineotype in England, and quite impudent not to get itself transformed into a “tan. . gible, legible, concrete thing," a veritable code de commerce or Handelsgesetzbuch, which could be read, handled and laid away on a shelf by the doubting Thomases. Notwithstanding its delinquencies in these and other respects, it does not seem to me quite fair to brand it as a “phantom," “ an empty abstraction or even hallucination," and cast it into outer darkness. However, I am consoled by the assurance that if this fate really awaits it, the common law, as even a more impudent pretender, shall accompany it on its descent into the “ limbo of ambiguities."
F. M. B.]
DESTRUCTION OF EXPRESS
EXPRESS TRUSTS BY MERGER.
The provision of Section 63 of the New York Revised Statutes prohibiting the beneficiary of a trust to receive and apply rents and profits, from assigning or disposing of his interest, was amended a few years ago by the addition of a provision to the effect that if such a beneficiary is also“ entitled to a remainder " he may effect a merger of his two interests, and thus terminate the trust. A number of questions relating to the true meaning of this statute have been passed on by the lower courts, and it is the purpose of the present article to discuss one of these questions, namely, whether or not the statute, in referring to beneficiaries who are“ entitled to a remainder ”, means literally to include all who are thus entitled, without reference to the manner in which they became so; that is, to include not only beneficiaries to whom the trust instrument gives a remainder, but also beneficiaries who have subsequently acquired, by purchase or otherwise, a remainder which the trust instrument gave not to them but to some one else. To this end it will be convenient at this point to call attention briefly to certain familiar statutes and principles of law which have a bearing on the subject.
Under the Revised Statutes, every express trust to receive and apply rents and profits, or income, effected two results. In the first place, the statute provided that “ every sale, conveyance, or other act of the trustees, in contravention of the trust, shall be absolutely void,"") and that no person beneficially interested in a trust for the receipt of the rents and profits of lands, can assign or in any manner dispose of such interest ; but the rights and interest of every person
for whose benefit a trust for the payment of a sum in gross is created, are assignable."'?
The Real Property Law3 contains the same provisions in slightly different form. And although they reser particularly to trusts of real property these statutes have uniformly been held applicable to personal property also, and R. S. 730, $ 65.
21 R. S. 730, $ 63. *$S 83, 85.
now the Personal Property Lawl contains a similar provision. The result of these statutes was, that as it was impossible for either the trustee or the beneficiary to shake the property free from the trust, such a trust afforded, as was intended, a means of protecting a beneficiary against his own inexperience, poor judgment or folly, in any case where the creator of the trust did not consider it wise to trust him with the absolute disposition of the property.
The second result effected by such a trust arose out of the joint operation of the statutes above referred to, and of a different set of statutes, namely, those dealing with the suspension of the absolute power of alienation of real property and the absolute ownership of personal property. These provided in effect that such a suspension existed, “ when there are no persons in being by whom an absolute fee in possession ean be conveyed,” and that “the absolute power of alienation shal not be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate," (with one exception which, in connection with the subject here to be discussed, is immaterial). By the Real Property Law4 these provisions were consolidated and soinewhat changed in form. A similar provision applied to personal property.
Under these statutes relating to real and to personal property the test of the existence of a suspension of the power of alienation, or of absolute ownership, is the same, namely, the non-existence of persons who can convey an absolute fee in possession of real estate, or transfer the abso. lute ownership of personal property. Such a situation might be caused, for example, by creating an express trust to receive and apply rents and profits, or income ; for in that case, as neither the trustee nor the beneficiary, nor both together, could get rid of the trust, as already stated, it followed that there were no persons in being who could convey an absolute fee of the real property, in possession, or transfer the absolute ownership of the personal property. In other words there was necessarily a suspension of the absolute power of alienation, or of absolute ownership. And 21 R. S. 723, § 14.
3, R. S. 723, $ 15. "I R. S. 773, $ 1; Pers. Prop. L., $ 2.