Obrazy na stronie

TRESPASScontinued. pass quare clausum fregit: and to support this action, the plaintitt' must have been in the actual possession of the land at the time of the trespass committed. On the other hand, where the trespass is done to goods or personal property, it is called trespass de bonis asportatis-an action which, equally with the other, rests upon possession, but the possession in this case may be either actual or constructive; constructive possession being that which ownership or property draws with it by implication or construction of law.

See next title.

TREASURE-TROVE--continued. many cases treasure-trove belongs to the lord of the manor within whose limits it is found, by special grant or prescription. Cowel.

TREASURY BENCH. In the House of Commons the first row of seats on the right hand of the Speaker is so called, because occupied by the First Lord of the Treasury or principal Minister of the Crown.

TREBLE COSTS. Are three times the amount of the costs incurred by a party in an action, and the payment of such costs is by various statutes imposed as a punishment upon persons violating the provisions of those statutes. Thus by 29 Eliz. c. 4, the sheriff for extortion on final process is liable not only to pay treble damages (or three times the amount of the sum which he has extorted), but also treble costs, which is the amount of the plaintittos costs reckoned three times over. 2 B. & Ald. 393; 1 Ch. Rep. 137; 2 Ch. Pl. 326, n. (h), 6th ed.

TREBUCKET. A certuin engine of correction, in which persons convicted of the offence of being common scolds were placed; it was also called the castigatory or cucking stool, wbich latter is said to signify in the Saxon language scolding stool, though frequently corrupted into ducking stool, from the circumstance of the offender placed therein being plunged in the water for her punishment. 3 Inst. 219.

TRESPASS. This word, in its most comprehensive sense, signifies any transgression or offence against the law of nature, of society, or of the country in which we live; and this, whether it relates to a man's person or to his property. In its more limited and ordinary sense, it signifies an injury committed with violence, and this violence may be either actual or implied ; and the law will imply violence though none is actually used, when the injury is of a direct and immediate kind, and committed on the person or tangible and corporeal property of the plaintiff. Of actual violence, an assault and battery is an instance; of implied, a peaceable but wrongful entry upon a person's land. For the above offences an action of trespass lies; and this action is usually either an action of trespass vi et armis, or an action of trespass on the case ; the former being brought to recover dainages for wrongs done with direct violence, the latter to recover damages for wrongs not done with direct violence, or if done with direct violence, yet resulting from negligence as distinguished from design (Stepiı. Plead. 17; Smith's Action at Law, 2). Again, where trespass is done to linds or real property, it is called tres

TRESPASS ON THE CASE, Is the form of action adapted to the recovery of damages for some injury resulting to a party from the wrongful act of another, unaccompanied with direct or immediate force. Thus, if a man, in throwing a log into the highway, strikes a passer by, he may sue in an action of trespass simply socalled, and only in that action for damages for the injury he may have sustained; but if after the log has fallen and rested on the ground, he stumbles over it, and so receives an injury, then “trespass on the case,” or, as it is commonly called, an action “on the case," would be bis appropriate remely. It is called an action upon the case, because the original writ by which this action was formerly commenced was not conceived in any fixed form, but was framed and adapted to the nature and circumstances of the case by virtue of the statute De Consimili Casu (13 Edw. 1, Statute of Westminster the Second). c. 24. See Scott v. Shepherd, 2 Bl. Rep. 892; 1 Smith's L. C. 210; 1 Chit. on Pl. 127, 6th ed. ; Com. Dig. tit. “ Action upon the Case” (a.)

TRIAL. The mode of determining a question of fact in a Court of Law. Or it may, in other words, be defined to be the formal method of examining and adjudicating upon the matter of fact in dispute between a plaintiff and a defendant in a Court of Law. There are various different species of trials according to the nature of the subject or thing to be tried; these, however, will, in general, be found under their respective titles. A trial at bar, which is a species of trial now seldom resorted to excepting in cases where the matter in dispute is one of great importance and ditficulty, is a trial which takes place before all the judges at the bar of the Court in which the action is brought (Steph. Pl. 81). The recent case of Reg. v. Castro, otherwise Tichborne, or Orton (1872-3), was an example of trial at bar.

[blocks in formation]

TRIBUNAUX DE COMMERCE-contd. president, judges, and substitutes elected in an assembly of the principal traders. No person under thirty years is eligible as a member of the tribunal, and the president must be forty years of age at the least. The tribunal takes cognizance of all cases arising between merchants, and also of all disagreements arising among partners. The course of procedure is as in civil cases, and with an appeal to the regular Courts.

TRIORS OF JURORS. Persons selected by the Court to examine whether a challenge made to the panel of jurors, or any of them, be just or not. A challenge to the panel is grounded on some probable cause of suspicion, as an acquaintance, or the like, the validity of which is determined by these triors. These, if the first juror be challenged, are two indifferent persons named by the Court; if they find one man indifferent, he shall be sworn, and he with the two triors shall try the next, and when another is found indifferent and sworn, the two triors shall be superseded, and the two first sworn on the jury shall try the rest. Cowel; Smith's Action at Law, 146.

See also titles CHALLENGE; JURORS.


TROVER (from the Fr. trouver, to find). Is that form of action adapted to try a disputed question of property in goods or chattels. It is called trover, because it is founded upon the supposition (which, however, is in general a nere fiction), that the defendant found the goods in question ; and the declaration, after stating such a finding, proceeds to allege that the defendant converted them to his own use (such conversion being the true gist of the action); and then he claims damages for the injury which he has sustained by such wrongful conversion.

In form, the action is fiction ; in substance, it is a remedy to recover the ralue of personal chattels wrongfully converted by another to his own use. The form supposes the defendant may have come lawfully by the possession of the goods. This action lies, and has been brought, in many cases, where in truth the defendant has got the possession lawfully. It is an action of tort, and the whole tort consists in the wrongful conversion. Two things are necessary to be proved to entitle the plaintiff to recover in this kind of action : First, property in the plaintiff, and, secondly, a wrongful conversion by the defendant (see per Lord Mansfield in Cooper v. Chitty, 1 Burr. 20; 1 Smith's L. C.230). Moreover, the property necessary to support the action must be one which draws with it a right to

TROVER--continued. the immediate possession also of the thing converted (Gordon v. Harper, 7 T.R. 9); consequently, if the thing is in pledge to another, the pledgor, although owner, cannot bring the action. But the pledgee, as having what is called a special property in the thing, may bring the action; and generally any bailee of the goods may do so on the like ground.

TRUSTS. Uses having existed previously to the Statute of Uses (27 Hen. 8, c. 10), as confidences which the Court of Chancery upheld and enforced, these early confidences were the earliest form of trusts; but after that statute, these uses having in consequence thereof become transmuted into legal estates, the jurisdiction of Equity over trusts promised to cease, or at any rate, to become unnecessary, when the decision in Tyrrell's Case (4 & 5 Phil

. & M.), whereby the Courts at Westminster refused to recognise any second use upon a first use, i.e., a use upon a use, revived or restored to the Courts in Lincoln's Inn, and even increased, their former jurisdiction over trusts.

In regulating the qualities and incidents of trust estates, Equity followed the Law in its leading principles, construing for example, words of limitation in the like manner as the same were construed at Law, and generally (although with some exceptions hereinafter mentioned), adopting the rules of Law with little or no variation. Thus, in fact, in every estate, there came to exist, by possibility at least, and in general in actual fact as well, two estates of equal quality and duration, existing side by side, and like parallel lines of equal length running beside each other, the one estate being called the equitable estate and the other the legal estate. And like parallel lines, the two estates in their own nature never meet, although just as the two parallel lines being laid upon the top of each other would coincide and grow into one line only, so the two estates being by force, ab extra themselves, brought together do also coincide and grow into ono estate only, a union which is called the union of the equitable with the legal estate in fee.

Two statutes are all-important in their bearing upon trusts, the first of the two being the Statute of Uses already mentioned, and the other of them the Statute of Frauds (29 Car, 2, c. 3); and in distinguishing these two statutes, it is essential to note, -(1.) That the Statute of Uses, on the one hand, extends to freehold hereditaments only, and neither to leaseholds nor to copyholds; and, à fortiori, not to pure per. sonal estate ; and, (2.) That the Statute of Frauds, on the other hand, extends to free



TRUSTS-continued. holds, leaseholds, and copyholds indifferently, requiring for the creation of a trust thereof respectively the use of writing, but as the latter statute does not extend to pure personal estate, it follows that a trust of pure personal estate may be created without writing, or by word of mouth only. McFadden v. nkins, 1 Phil. 157.

Trusts are manifold; but are monly arranged under the following heads : I. Express Trusts,-being trusts which

are created in so many fit and appropriate terms, and which are

subdivided thus, (a.) Exprees Private Trusts,—being trusts affecting

individuals only; and (6.) Express Public Trusts,-being

trusts affecting public bodies

primarily. II. Implied Trusts, being trusts

founded on the presumable, although unexpressed, intention of

the party who creates them; and III. Constructive Trusts,- being trusts

which are founded neither on an expressed nor on any presumable intention of the party, but which

raised by construction of Equity without any regard to intention, and simply for the purpose of satisfying the demands of

justice and good conscience. The following is a more or less exhaustive list of all the varieties of trusts falling under each of the three principal heads above enumerated, and for a particular description of each such variety, see the subtitle that is descriptive thereof.

The varieties of trusts are :-
I. Express Trusts.
(1.) Express Private Trusts:

(a.) Executed and executory trusts ;
(6.) Trusts voluntary and for value;

(c.) Trusts in favour of creditors, (2.) Express Public Trusts, called also

Charitable Trusts. II. Implied Trusts. (a.) Trusts resulting from a purchase

in the name of a stranger; (6.) Trusts resulting from an incom

plete disposition of the equit

able estate; including (c.) Trusts of the undisposed of sur

plus of personal estate for the next of kin, or of real estate for

the heir-at-law; (d.) Trusts under conversions that

fail : (e.) Trusts in cases of joint tenancies,

whether for purchasers, or for mortgagees.

TRUSTS-continued. III. Constructive Trusts. (a.) Vendor's lien, also vendee's lien,

in respect of purchase-money either unpaid or prematurely

paid; (6.) Renewal of lenses by trustee in

his own name; (c.) Permanent improvements to an estate which

were unavoid. able; (d.) Heir of mortgagee in respect of

mortgage loan for next of kin

of mortgagee. There are certain requisites for the creation of a trust, other than and in addition to the statutory requisite of writing above mentioned, where writing is required, these requisites being three in number, and familiarly called the Three Certainties in Trusts. These three certainties are, (1.) Certainty in the words creating the

trust; (2.) Certainty in the subject of the trust,

i.e., in the trust property; (3.) Certainty in the object of the trust,

i.e., in the beneficiary. (See Knight v. Knight, 3 Beav. 172; 11 ČI. & F. 513). And failing any one or more of these three certainties, the trust which was intended inevitably fails. But it being clear that some trust was intended, the trustee is not, in such cases, entitled or permitted to take or keep the property for his own benefit (Briggs v. Penny, 3 Mac. & G. 516), if there are any other persons entitled (whether as devisces or legatees of the residue, or as heirs, or next of kin of the testator or intestate), to have it made over to them according to its quality; and if there are no such other persons as last mentioned, then the Crown takes the personal estate as bona vacantia (Taylor v. Haygarth, 14 Sim. 8); but the trustee keeps the real estate for his own benefit, his tenure thereof excluding escheat. Burgess v. Wheate, 1 Eden, 177.

Executed and Executory Trusts.-An executed trust is one which the person creating it has fully and finally declared, whence also it is called a Complete Trust; an exccutory trust is one which the person creating it has not fully or finally declared, but has given merely an outline of it by way of direction to the conveyancer, whence also it is called sometimes an Incomplete and sometimes a Directory Trust.

The Court of Chancery deals very differently with executory trusts to what it does with executed ones.

Thus (1.) That Court follows the Law (æquitas sequitur legem) with regard to executed trusts, e.g., the rule in Shelley's Case applies to these without any exception; whereas with regard to exccutory

[ocr errors]


TRUSTS-continued. trusts the Court takes the following dis- cestui que trust a right in rem over the tinction, viz. :

trust property which shall protect him in (a.) If the executory trust occurs in it against third persons claiming without marriage articles (Trevor v. Trevor 1 P. notice thereof (Bill v. Cureton, 2 My. & K. Wms. 622), or in a will manifestly point

503); ing at marriage (Papillon v. Voice, 2 P. Or, again, a trust may be an executed Wms. 571), the Court refuses to follow the trust, rule in Shelley's Case as to their construc- (2.) By assignment or conveyance of the tion, as by so doing it would give to the trust property, according as it is personal intended husband full power of defeating or real estate, to a trustee, accompanied the prospective issue of the intended mar- with a limitation or declaration of the riage of the provision presumably intended trusts thereof; but many difficulties have to have been made in their favour; but arisen with reference to this second mode

(6.) If the executory trust occurs in a of creating a trust, which manifestly is a will, and that will does not manifestly mere technical or formal mode of doing so. point at marriage, the Court follows the The sources of the difficulty have been rule in Shelley's Case, and gives to the two, and (apparently) only two, that is to ancestor an estate in fee simple or in fee say, tail without reference to his issue, there (a.) The circumstance that, at Law, and being no presumption in this case of any also in Equity, there can be no assignment, intention to provide for such issue (Sweet- strictly so called, of rsonal estate, and apple v. Bindon, 2 Vern. 536 ; Papillon v. no conveyance, strictly so called, of real Voice, supra); and

estate otherwise than by deed ; and neither (2.) The Court of Chancery is ready, the statutes (e.g., the 30 & 31 Vict. c. 144, and is even compellable, in all cases of an as to Policies of Life Assurance; the 31 & executed trust to give full effect to the 32 Vict. c. 86, as to Policies of Marine same, saving all prior equitable rights, and Assurance), which prescribe a simple statuthat even in favour of volunteers, but the tory form of assignment or conveyance, nor Court refuses and is not compellable in any the Judicature Act, 1873, ss. 25, 26, itself case of an executory trust being in favour have altered the former law of the Courts of a volunteer to give any effect whatever in this respect; and to the same, which consequently falls to (6.) The further circumstance, that the ground, although the Court will in until the Judicature Act, 1873, s. 25, the many cases of executory trusts being in Courts of Law and the Courts of Equity favour of purchasers for value and such respectively proceeded upon different prin-, like, give etlect thereto, saving all prior ciples with regard to the assignability of equitable rights. See title TRUSTS VOLUN- choses in action (see that title), which conTARY AND FOR VALUE.

stitute by far the larger part of the perA trust may be an executed trust in sonal property which is mude the subject either of two ways, either

of a trust. (1.) By declaration of trust, which is a From these two sources of difficulty comsimple and informal mode of creating it, bined, it has been held in numerous cases requiring, however, writing (although not a that trusts attempted to be created in the deed) in the case of land (whether freehold, more formal manner, i.e., by assignment or copyhold, or leasehold), but not even requir- conveyance accompanied with an express ing any writing in the case of pure personal declaration of the trusts, are executory only estate. The Court of Chancery is bound

and not executed in the following cases, to enforce a trust that is completely created (a.) When the assignment was attempted in this simple manner (Ex parte Pye, Ex to be made by the use of the words, “I do parte Dubost, 18 Ves. 140). If the person hereby assign,” &c., indorsed on the back should be both legal and equitable owner of the receipt given for a subscription paid of the property of which he declares the upon a call in respect of shares in a comtrust, he declares himself the trustee pany, the indorsement not having bein exethereof; if, on the other hand, he is the cuted and delivered as a deed, Antrobus v. equitable owner only, he directs his own Smith, 12 Ves. 39; trustee (who is the legal owner) to hold the (b.) Where the assignment was at. property upon the trusts which he then

tempted by the like form of words also and there specifies in the direction; and indorsed on the back of a bond, the indorsesuch latter direction, although it has not ment not having been exécuted and (nor any notice of it) been sent to the delivered as a deed, although the bond trustee, and although the trustee refuses itself was delivered (Eduards v. Jones, liis assent to it, is binding and effectual 1 My. & C. 220); and even against the party giving it; but notice to (c.) When collateral formalities, being the trustec is necessary to give the new such as went to aflect the efficacy of the


TRUSTS-continued. deed for the purpose of assignment had been neglected), although the assignment was by deed duly executed and delivered, and therefore valid by the general law. Searle v. Law, 15 Sim. 95.

On the other hand, it has been held in still more numerous cases, that trusts attempted to be created in the more formal manner are executed and not executory merely in the following cases :

(a.) Where the property was assignable at Law, and the person assuming to assign it used for that purpose a deed duly executed and delivered, there being no neglect of collateral formalities interfering with the validity of the deed for the purpose of assignment; and even

(6.) Where the property was not assignable at Law, but the person assuming to assign it used for that purpose a deed duly executed and delivered, there being no neglect of collateral formalities interfering with the validity of the deed for the purpose of assignment. Fortescue v. Barnett, 3 My. & K. 36; Kekevich v. Manning, 1 De G. M. & G. 176.

And a comparison of the two cases just cited shews, that for the validity of such an assignment in the creation of a trust it makes no difference whether the assignor is both legal and equitable owner, or equitable owner only, provided that if equitable owner only, it is not within his power at the time of the assignment clothe himself with the legal ownership as well, before making the assignment (Gilbert v. Overton, 2 H. & M. 110); but the assignment is executory only, if it is within his power to do so at the time of the assignment and he neglects to do it before assigning (Bridge v. Bridge, 16 Beav. 322); but of course only if he knows it. Gilbert v. Overton, 2 H. & M. 110.

Trusts Voluntary and for Value.-Voluntary Trusts are trusts in favour of a volunteer, i.e., of a person as to whom the trust is a pure bounty or gift, for which he pays or gives nothing as the price thereof'; on the other hand, trusts for value are trusts in favour of purchasers, mortgagees, or others, whom the Courts of Equity regard as valuable claimants.

(A.) If a voluntary trust is executed, i.e., complete (see title EXECUTED Trusts), the Couit is ready and is compellable to enforce it; but if a voluntary trust is executory, i.c., incomplete, the Court refuses and is not compellable to enforce it, and accordingly it falls to the ground (Jefferys v. Jefférys, Cr, & Ph. 138). This rule is without any exception, excepting (but to a very limited extent) in the case of powers, and excepting in the case of powers in the nature of trusts; and accordingly, in the

TRUSTS-continued. case of voluntary trusts, the conflict has in general been confined to the finding of one fact, viz., whether the trust is exccuted, i e., complete, or is exccutory, i.e., incomplete, as to which see the sub-title ExeCUTED AND EXECUTORY TRUSTS.

(B.) On the other hand, a trust for value, whether it be executed or executory, is invariably enforced by the Court of Chancery, saving all prior equitable rights.

Voluntary trusts and trusts for value are also distinguished by the Courts of Equity in many other ways; thus

(a.) A voluntary settlement, whether of real or of personal estate, if it be fraudulent within the meaning of the stat. 13 Eliz. c. 5, is void against creditors who were in existence at the date of the settlement, and are thereby hindered in the recovery of their debts (Spirett v. Willows, 3 De G. J. & S. 293), or who not having become creditors already at the date of the settlement, have an equity to stand in the position of the creditors wbo were already such at that date (Freeman v. Pope, L. R. 5 Ch. 538); but although being fraudulent it is good and valid against the settlor himself (Smith v. Garlund, 2 Mer. 123). On the other hand, a settlement for value, whether of lands or goods, if it be not fraudulent within the meaning of the Common Law, i.e., in common sense and reason, is valid against all the world, including the settlor, and also creditors and purchasers, no matter although these lat. ter persons may be hindered or frustrated in the recovery of their debts or purchases; and a very little value, not being colourable, will in general suflice, more especially if it be conjoined with the consideration of blood or natural affection, which the law considers meritorious (Hewison v. Negus, 10 Beav. 591); again,

(6.) A voluntary settlement (being, however, of real estate only), if it be fraudulent within the meaning of the statute 27 Eliz. c. 4, is void against purchasers, including mortgagees, who become such subsequently to its date (and, à fortiori, if they were so already previously to its date); but such a settlement is good against subsequent judgment creditors (Bearan v. Eurl of Oxford, 6 De G. M. & G.507), and as against the settlor himself and volunteers claiming under him that are subsequent in date, and even (it has been held) against a bona file purchaser for value from such latter volunteers (Hoe v. Rusham, 17 Q. B. 723; Lewis v. Rets, 3 K. & J. 132; Richards v. Leucis, 11 C. B. 1035). On the other hand, a voluntary settlement, being of personal estate, can in no case be fraudulent within the meaning of, not being in fact comprised within, the stat. 27 Eliz. c. 4, and

« PoprzedniaDalej »