Obrazy na stronie

TRUSTS-continued. therefore is good against all the world, so far, at any rate, as that statute is concerned (Jones v. Croucher, 1 8. & S. 315); but it is clear it may be fraudulent either within the meaning of the 13 Eliz. c. 5, or within the meaning and intention of the Common Law, in either of which cases it would have no validity excepting as against the settlor himself, volunteers claiming under him, and, semble, purchasers under such volunteers (see title FRAUDULENT GIFTs). On the other hand, a settlement for value, whether of lands or goods, not being fraudulent within the meaning of the Common Law, is good against all the world. Lastly,

(c.) Under the Bankruptcy Act, 1869, 8. 91, settlements that are post-nuptial are ipso facto void on the ground of fraud, if the settlor becomes bankrupt within two years from their date, and are also void upon the like event happening within ten years until proof of solvency at their date, the property settled being the bankrupt's in his own right, and not wbat ho takes in right of his wife.

Trusts for Creditors.-Deeds of trust in favour of creditors, although they contain no express power of revocation, are (unlike other deeds, and unlike even voluntary deeds) revocable by the settlor, as a general rule (Garrard v. Lord Lauderdate, 3 Sim. 1), they being arrangements for the debtor's own convenience merely, and not investing his creditors with the character of cestuis que trust. Made one day, they may be unmade the next, upon a happier thought. Nevertheless, such deeds become irrevocable in certain cases, being principally two, namely,—

(a.) Where the creditors, or one or more of them, are parties to the deed, and execute it, it becomes irrevocable as to the executing creditor or creditors (Mackinnon V. Stewart, 1 Sim. (N.S.) 88); and

(6.) Where the deed is communicated to non-executing creditors, and they, or one or more of them, after such communication, relying on the deed, have altered their positions or position relatively to the debtor, e.g., by abandoning some compulsory proceeding which they had commenced against him for the recovery of their debts (Acton v. Woodgate, 2 My. & K. 495; Field v. Lord Donoughmore, 1 Dru. & War. 227); but mere communication, not followed by such an alteration of position, does not make the deed irrevocablo. Biron v. Mount, 24 Beav. 649,

Trusts in Joint Tenancies.-Equity acting upon the maxim that equality is cquity, although it is bound to recognise the joint tenancies which the rules of la v create, nevertheless seizes upon the

TRUSTS—continued. very slightest grounds of difference, distinction, or inequality for nentralising in effect the incident of survivorship which attaches to joint tenancies, on the ground that such incident is unequal or inequitable as between the tenants. And accordingly, in the case of MORTGAGES, al. though the mortgagees are as a general (and, indeed, almost invariable) rule made joint tenants at law, and the legal estate accordingly survives to the survivor wholly, yet Equity, as well (a) where the amounts advanced by the respective mortgagees are equal, as also (6) where they are unejual, breaks through the rule of Law to this extent, that it secures to the deceased his due proportion of the mortgage debt, and for that purpose, and because it finds the legal estate already vested wholly in the survivor, declares the latter a trustee (1) for the deceased, to the extent of his proportion, and (2) for himself, as to the residue of the money lent. And again, in the case of PURCHASES, although the purchasers are made joint tenants, and necessarily, therefore, are to remain so at Law, so that the legal estate survives to the survivor wholly, yet Equity (C) where the amounts advanced by the respective purchasers are unequal, breaks through the rule of Law to this extent, that it stcures to the deccased his due proportion of the purchased land, and for that purpose, and because it finds the legal estate already vested wholly in the survivor, declares the latter a trustee (1) for the deceased to the extent of his proportion, and (2) for himself, as to the residue of the purchased land: but (?) where the amounts advanced by the respective purchasers are equal, Equity has no ground for breaking through the rule of Law, and in that caso therefore (being one case only out of four) permits the incident of survivorship at Law to have its way in Equity as well. Sce also SURVIVORSIUPS.

Charitable Trusts.--These are trusts in favour of hospitals, the people, and such like. As compared with trusts in favour of individuals, trusts in favour of charities are treated by the Court of Chancery as being,(1.) In some respects on a level with

individuals ; (2.) In other respects with more farour

than individuals; and (3.) In one respect with less favour than

individuals. Thus (1.) They are treated on a level with individuals in the two following respects :

(a.) The Court of Chancery will supply the want of a trustee or executor in the case of a gift to a charity, just as it will TRUSTS—continued. do (at any rate, since the Trustee Act, 1850, and Trustee Extension Act, 1852) in the case of a gift to an individual (Mills v. Farmer, 1 Mer. 55);

(6.) The Court of Chancery, equally with the Courts of Law, requires charitable bodies to bring their actions and suits within the times limited for the same by the Statute of Limitations (3 & 4 Will. 4, c. 27); Att.-Gen. v. Christ's Hospital (3 My.& K. 344), being no longer law. Again,

(2.) Charities are treated with more favour than individuals in the two following respects :

(a.) Where a general intention to give to charities is evidenced by the particular intention which is expressed in the instrument of gift, and that particular intention fails from any cause, the Court of Chancery will find some other particular mode of making the gift effectual for a charity (Moggridge v. Thackwell, 7 Ves. 69, see title CY-PRÈS); whereas in the case of individuals the trust in such a case would be void for want of one of the three requisite CERTAINTIES.

(1.) The Court of Chancery will also supply in favour of a charity defects in conveyances, not being defects which any statute has rendered fatal to the gift (Sayer v. Sayer, 7 Hare, 377); but no such assistance would be rendered to individuals (see sub-title VOLUNTARY TRUSTs); lastly,

(3.) Charities are less favoured than individuals in this respect, that the Court will not marshal assets in favour of charities, although it will do so in the case of individuals. Williams v. Kershaw, 1 keen, 274, n.

Vendor's Lien.- Where the vendor conveys the estate sold before receiving the whole or some part of the purchase-money thereof, he has a lien, i.e., hold, on the estate for the unpaid purchase-money or unpaid part thereof; and conversely, the purchaser or vendee also has a lien on the estate contracted to be sold for the purchase-money or the part thereof where he has already paid, or prematurely paid, the same, by way of deposit or otherwise, and the contract for any reason not imputable to himself afterwards goes off. Mackreth v. Symmons, 15 Ves. 329; Wythes v. Lee, 3 Drew. 396.

Either the vendor or the vendeo may, however, by his own negligence, or by being party to a fraud, prejudice or lose the priority of his lien over subsequent charges or claims (Rice v. Rice, 2 Drew. 73). Moreover, he will be taken to have abandoned his lien in the following cases :

(1.) Where a bond, bill, promissory note, or covenant, is taken expressly in lieu of, or in substitution for, the unpaid purchase

TRUSTS-continued. money (Buckland v. Pocknell, 13 Sim. 406; Parrott v. Sweetland, 3 My. & K. 655);

(2.) Where any security (not of a per. sonal nature), e g., either a long annuity (Nairn v. Prowse, 6 Ves. 752), or a mortgage either of the same (Bond v. Kent, 2 Vern. 281), or of a distinct estate (Cowell v. Simpson, 16 Ves. 278), is taken for the unpaid part of the purchase-money.

But the lien will remain where any security which is of a personal nature is taken generally, that is to say, is not taken in express substitution for the purchase-money. Collins v. Collins, 31 Beav. 346.

The lien avails against the following parties :(1.) The purchaser or vendor, as the

case may be ; (2.) The heirs of either; (3.) Volunteers claiming under either; (4.) Malâ fide purchasers for value under

either; (5.) The trustee in bankruptcy of either;

and (6.) Bonâ fide purchasers for value

under either, not having the legal

estate. All these distinctions depend upon the simple principle, that the lien being a real right, and therefore higher in quality than a personal right, is not lost or merged in the subordinate right, unless the parties have so expressly agreed.

Trustee's Reneiral of Lease.- In the case of a renewable lease which is held in trust by A. for B., upon the time for renewal coming round, if A. renews the lease in his own name, and expressly or impliedly for his own benefit, he is nevertheless held hy the Court of Chancery to be a trustee for B. of the renewed lease, and it does not matter that the landlord, for reasons of his own, expressly and persistently refused to grant a renewal to B., or in favour of B. (Keech v. Sandford, 1 W. & T. L. C. 39), the trustee being the only person in the world who, in such a case, is incapacitated from taking a renewal in his own name. The like stringent rule applies in the case of one co-partner taking a renewal behind the backs of his co-partners (Featherstonhaugh v. Fenwick, 17 Ves. 311); also, of an executor de son tort doing the like (Mulrany v. Dillon, 1 Ball. & B. 409); also, of a tenant for life doing the like (Roue v. Chichester, Amb. 211); also of a joint tenant doing the like (Palmer v. Young, 1 Vern. 276); also of a mortgagee (Rushworth's Case, Freem. 12), or mortgagor (Smith v. Chichester, 1 C. & L. 486; Seabourne v. Powell, 2 Vern. 11) doing the like. Permanent Improrements by Tenant.-

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TRUSTS—continued. Where a tenant for life (but not also where a tenant in tail, or a tenant in fee simple) expends money in finishing the unfinished buildings of the testator or settlor, or in doing other works of the like permanent and beneficial nature, being also works which are necessary to be done, and which will not wait, then he is entitled to be repaid a proportion of those expenses, as for unexhausted improvements (Hibbert v. Cooke, 1 S. & S. 552; Dent v. Dent, 30 Beav. 363). But, excepting in the two cases before mentionell, he is not entitled to any such repayment, however beneficial or meritorious the result may be to the estate generally (Dent y. Dent, supra); and in all cases, therefore, other than the two before mentioned, it is advisable for him, on the one hand, if the improvements are of an agricultural nature, to borrow money for the purpose under the Improvement of Land Act, 1864 (27 & 28 Vict. c. 114), or, on the other hand, if the improvements are of a residential nature, to borrow the necessary money under the Limited Owners' Residences Act, 1870 (33 & 34 Vict. c. 56).

Ieir a Trustee.- When a person has a mortgage in fee which he has not fore. closed, and dies intestate, the legal estate in the mortgaged property descends to his heir or real representative; but the administrators of the deceased, or his personal representatives, are entitled to the beneficial ownership of the moneys due on the mortgage, and to the security for the same; and, accordingly, the Court of Chancery, finding the legal estate in the heir, declares him a trustee for them to the extent of the moneys secured by the mortgage. Thornborough v. Baker, 1 Ch. Ca. 28.

See also next title.

TRUSTS RESULTING-continued. generally summed up under the head Advancement, which title see.

(2.) In the case of a conveyanceor assignment, or devise or bequest of lands or of personal estate to A. in fee simple, or other estate, upon trust for certain estates and purposes which do not exhaust the entire fee simple or other estate, it is a general rule and without any exceptions, that all that part of the estate which is not exhausted by the trusts declared results, in the case of a settlement to the settlor, and in the case of a will to the heir or real representatives of the testator if the estate is in realty, and to the executors or personal representatives of the testator if the estate is in personalty (Parnell v. Hingston, 3 Sm. & Giff. 344). But in applying this rule it is necessary to distinguish conveyances or assignments, or devises or bequests upon trust, from conveyances or assignments, or devises or bequests, which are merely subject to or charged with certain limited beneficial interests, the grantee or devisee, assignee or legatee, in the latter case taking the entire residue for his own benefit after satisfying the charge. King v. Denison, 1 Ves. & B. 272.

(3.) When money is directed to be turned into land, or land is directed to be turned into money, for certain purposes or upon certain trusts, the property is in Equity considered as already, from the date of the direction taking effect, converted into that into which it is directed to be converted (see title CONVERSION); in other words, the money as being notionally land, and the land as being notionally money. But this equitable conversion is subject to the following limitation, that is to say, the direction extends no further than the trusts or purposes for the sake of which it is given, or such of the same trusts or purposes as are capable of taking effect, and as also take effect, require it to extend ; and accordingly the margin or surplus of the property over and above what is required for those trusts or purposes results in the cause of a deed to the settlor, and in the case of a will to the next of kin, so far as the direction for conversion concerned personal estate, and to the heir-at-law so far as it concerned real estate.


TURBARY (from turba, an old Latin word for turf). Turbary, or common of turbary, is the right or liberty of digging turf upon another man's ground. Kitchin, 91.

See also title COMMON.


TRUSTS RESULTING. Either, (1.) From purchase in name of stranger; (2.) From incomplete disposition of

equitable estate; or (3.) From the failure of equitable con

versions. (1.) In the case of purchasers, whether of land or of goods, the conveyance or assignment of which is taken or made in the name of a party other than the purchaser himself or person who pays the money, the GENERAL Rule is, that the grantee or assignee in whom the legal estate is so vested holds the property in trust for the purchaser and for the benetit of the purchaser only. This is merely one form of the old rule that a feoffee without consideration was a trustee for the feoffor. But the EXCEPTIONs to this rule are more important than the rule itselt, and are

TURNPIKE ROADS. These are roads on which parties have by law a right to erect gates and bars, for the purpose of


UNDER-CHAMBERLAIN OF THE EXtaking toll, and of refusing the permission

CHEQUER—continued. to pass along them to all persons who true. He also made searches for all records refuse to pay (Northam Bridge and Roads in the treasury, and had the custody of Co. v. London and Southampton Ry. Co.,

Domesday Book. There were two officers of 6 M. & W.428.) So in the Railways Clauses this name, but their office is now abolished. Act, 1845 (8 & 9 Vict. c. 20), s. 50, a turn- Cowel. pike road means a road which is repaired

UNDERLEASE. by tolls payable by passengers for the use

Is a lease granted by of the road (Reg. v. East and West India

one who himself is only a lessee of the Docks and Birmingham Junction Ry. Co., premises which he underlets. Thus, if A. 2 El. & Bl. 466.) The law of turnpike roads

grants a lease of land to B. for twenty-one is partly regulated by statute, the Act

years, and B. afterwards grants a lease of

the same land to C. for fourteen years, 3 Geo. 4, c, 126, being the General Turn

here C. would be termed the underlessee, pike Act, and having been amended by subsequent Acts. A turnpike-rond may A

and the lease, by virtue of which C. held the become a highway (see that title), 30 & 31

land, an underlease.

In this respect an

underlease differs from an assignment, Vict. c. 121. A mandamus does not lie to compel the repair of a turnpike-road (Reg.

which is a transfer of the entire term, or

residue thereof. The underlessee has no v. Oxford and Witney Roads (Trustees), 12 A. & E. 427); but the proper proceeding

privity with the original lessor, and is is to summon in the first instance the

liable for rent to his immediate lessor only.

But it is different with the assignee. treasurer, surveyor, or other officer of the turnpike-road trust before the justices at UNIFORMITY OF PROCESS ACT. Is special sessions, under the stat. 5 & 6 the title commonly given to the statute Will. 4, c. 50, s. 94.

2 Will 4, c. 39, by which a more simple TUTEUR OFFICIEUX. In French Law,

and uniform course of proceeding for the a person over fifty years of age may be ap

commencement of personal actions was pointed a tutor of this sort to a child over

established. Until the passing of that fifteen years of age, with the consent of

statute, the practice or forms of proceeding the parents of such child, or in their de

in the three superior Courts at Westminster fault the conseil de famille. The duties

differed greatly from each other. The imwhich such a tutor becomes subject to are

provements introduced by this statute were analogous to those in English Law of a

founded on the report of the Common Law person who puts himself in loco parentis to

Commissioners, a body of distinguished

men in the legal profession, appointed to any one.

consider the effects of the then existing TUTEUR SUBROGÉ.

In French Law,

system, with a view to its correction. In in the case of an infant under guardianship, some important particulars, however, the a second guardian is appointed to him, the

enactments of the stat. 2 Will. 4, c. 39, have duties of the latter (who is called the been again altered by the more recent Act subrogé tuteur) only arising where the of 1 & 2 Vict. c. 110; as, for instance, under interests of the infant and his principal

the Act of Will. 4 an action might be comguardian are in conflict. Code Nap. 420. menced either by a writ of summons or by

a capias, whereas under the subsequent

statute, which is still in force, it can only U.

be commenced by a writ of summons.

More sweeping enactments have been made UMPIRAGE. When matters in dispute

by the C. L. P. Act, 1852. are submitted to two or more arbitrators

See title PROCEDURE. and they do not agree in their decision, it is usual for another person to be called in UNITY OF POSSESSION.

Joint possesas umpire, to whose sole judgment it is then sion of two rights by several titles. As if referred; the word “umpirage,” in refer- I take a lease of land from a person at a ence to an umpire, is the same as the word certain rent, and afterwards I buy the fee" award ” in reference to arbitrators; but simple of such land; by this I acquire unity award is commonly applied to the decision

of possession, by which the lease is extinof the umpire also.

guished ; because I, who before occupied See title ARBITRATION and AWARD.

the premises only in consideration of rent, UNDER-CHAMBERLAIN OF THE EX

do by the purchuse of the fee simple become

lord of the same. Cowel. CHEQUER. Au officer in the Exchequer who cleared the tallies written by the

UNLAWFUL ASSEMBLY: See title Riot. clerk of the tallies, and read the same, that the clerk of the pell and the comp- UPPER BENCH, COURT OF. The Court troller miglit see that their entries were of Queeu's Bench was so called during tho

U?PER BENCH, COURT OF-contd. interval between 1619 and 1660, the period of the Commonwealth.

USAGE. This word as used in English Law differs from custom and prescription, in that no man may claim a rent, common, or other inheritance by usage, though he may by prescription. Moreover, a usage is local in all cases, and must be proved; whereas a custom is frequently general, and as such is noticed without proof. Usage, in French Law is the usus of Roman Law, and corresponds very nearly to the tenancy at will or on sufřerance of English Law.

USANCE. The time which, by the usage of different countries between which bills of exchange are drawn, is appointed for their payment. This is a calendar month, as from the 20th of May to the 20th of June, and what is termed a double usance consists of two such inonths. Chitty on Bills.

USER. Is the act of using or enjoying any profit or benefit to be taken from or upon the land, or any easement to be enjoyed upon or over any land or water. And in law the effect of such user (if continued for a period sufliciently long, aud under circumstances which indicate the exercise of a right on the part of the person so using the land), is to establish a prescriptive claim ever after to enjoy the same profit or easement. Co. Litt. 115 a; and see title PRESCRIPTION.

USES. The word "use," in its original legal application, denoted simply the benefit or beneficial enjoyment of land. The invention of uses is commonly attributed to the ecclesiastics; and they having been the early lawyers, that origin is probable. The system of uses was attended with numerous advantages to the true owners of the land,—the use not being subject to escheat or to forfeiture, and being devisable by will, and transferable without livery of seisin ; but like other systems it was mailo the channel of numerous abuses, lands being conveyed by means of it to persons and in ways forbidden by the words-or, at all events, by the policy-of the Statute Law. Thus, by means of the use, lands came largely into mortmain to spiritual corporations, contrary to the Statutes of Mortmain (7 Edw. 1; 15 Ric. 2, c. 5); and, ultimately, after some Acts of a more imperfect character, the Statute of Uses (27 Hen. 8, c. 10) was passed, which in effect enacted that the use should be the land, and that where the use was there the land or legal estate should be and should be deemed to be. In consequence of this statute the word " departed with its original siguitication,

USES—continued. and became equivalent to seisin or legal estate.

By the decision in Tyrrell's Case (4 & 5 Ph. & M.) the Courts of Law held that the Statute of Uses intended the first use only, and that as soon as it had executed that use and made it the legal estate, it was exhausted. But the Courts of Chancery, while adopting the rule of Law so far, went further, and gave the benefit or beneficial enjoyment, as before, to the person intended to benefit, calling the first usee the legal estate man, or trustee merely, and the proper beneficiary, being the second or last usee, the cestui que trust and true owner in Equity.

By the joint operation of the Statute of Uses and the decision in Tyrrell's Case two lines of estute have become well established in Law,-namely, (1) the legal estate in the trustee, which retains all, or nearly all, its ancient incidents; and (2) the equitable estate in the cestui que trust, which has received incidents analogous to those of the legal estate, upon the maxiin, Equity follows the Law.

By the means of these uses new facilities have been furnished for the conveyance of property:



USHER (from the Fr. huissier, a doorkeeper of à Court). A subordinate osicer in the Courts of Law. The chief usher in the Court of King's Bench used to hold his oflice by letters patent under the great seal for two lives, and to execute it by three deputies. But see now 15 & 16 Vict. c. 73, ss. 16-21, which enacts that the ushers of the Superior Courts shall be appointed by the Chief Justices and Chief Baron respectively, and prescribes their salaries and tenure of office. There are also ushers in the Courts of Chancery, appointed in like manner by the judges of those Courts.

USHER OF THE BLACK ROD. The Gentleman Usher of the Black Rod is an officer of the House of Lords appointed by letters patent from the Crown. His duties are, by himself or deputy, to desire the attendance of the Commons in the House of Peers when the royal assent is given to bills either by the Queen in person or by commission, to execute orders for the commitment of persons guilty of breach of privilege, and also to assist in the introduction of peers when they take the oaths and their seats.


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