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session of parliament, and although the state of popular feeling on the subject is for the present discouraging, it would yet be unwarrantable to have the smallest fear for the progress of that cause for which this Society has now laboured for sixteen years. The advantages which have resulted from those amendments of the law which have already taken place, have been so manifest, that no apprehension need be entertained that other and further improvements in our legal system will not be adopted as soon as the political circumstances of the country will permit.
The magnitude of some recent changes in that system-such as the establishment of the new Probate and Divorce Courts—which, though long delayed, were yet successfully carried at last, shows the height to which the tide has risen, and the force which it has acquired; nor is there any reason to doubt that it is still flowing, although the present is the period of the recoil of the wave. Subject, however, as the cause of law amendment must always more or less be to temporary checks, it is of great advantage to have such a Society as ours, pursuing its inquiries in season and out of season, and offering a continuing protest against all unjust and unequal laws. By its publications and meetings for the discussion of important questions; by the great authority and influence of its president; by the zeal and energy of many of its supporters, Jabouring in the various fields of inquiry which it embraces; and by its very list of members comprehending names from
influential class in this great and free community, it will still keep the cause alive through all political vicissitudes, and prepare the public mind for the wise and beneficial measures that are to be adopted in happier times,
II.-ON THE PRESENT POSITION OF EXECUTORS AND TRUS
TEES ; WITH SOME SUGGESTIONS FOR AN EQUITABLE
The attention of this Society has several times been called to the state of the law as it affects executors and trustees; but mainly as regards the opportunities afforded to dishonest and fraudulent trustees to mis-appropriate the property intrusted to them, on the one hand; and, on the other hand, as, regards the perils to which trustees who are honestly disposed, and desirous to act fairly, are but too frequently exposed. In consequence of a paper which was some time ago written by our noble president, pointing out in a very forcible manner the evils which arise from the defects of our law as regards the former of these considerations, a committee of this society was appointed on the subject, who, after very careful consideration of the whole matter, drew up a report, embodying their views and recommendations. As regards the provisions which ought to be adopted, in order to restrain the misappropriation by trustees of trust property committed to their charge, the committee recommended that such an act, when fraudulently perpetrated, should be brought within the provisions of the criminal law. This suggestion has since been adopted by the legislature, and is now the law of the land.
As regards the perils to which trustees, who are honestly disposed and desirous of acting fairly, are very frequently exposed, the committee recommended that facilities should be afforded for an investigation into the condition of the trust estate before proper tribunals for the purpose, so that trustees who are acting improperly might be restrained in their proceedings, and the trust estate saved from ruin ; while those trustees who desire to act fairly would be directed aright in cases where they had erred, and prevented from following an erroneous course ; and those trustees whose conduct is proved to have been in all respects satisfactory, as regards their administration and investment of the trust fund,
would receive a certificate exonerating them from all liability on account of their trusteeships. No measures whatever have, however, been adopted by the legislature as regards the relief of trustees, and enabling them to obtain an investigation into the state of the trust. They are, therefore, now placed, in reality, in a much worse position than they were before, being threatened with criminal proceedings in addition to the harassing litigation which an error in judgment, or a mistake on the part of their advisers, frequently arising more from the uncertain and anomalous state of the law than from any want of skill, or learning, or caution on their part is almost certain to entail upon them.
It is quite unnecessary to urge on this society how very unsatisfactory is this state of things, and how imperatively it calls for, a remedy of some kind being applied to it. Families are exposed to ruin both on account of their own property having been vested in trusts which are unskilfully administered, and also from certain members of such families having unconsciously acted erroneously in the discharge of trusteeships. The ultimate consequence must be, that no persons of property or character will be found to take upon themselves the onerous, thankless, and dangerous office of trustee, which must, therefore, be left to devolve upon those who are either wholly ignorant of its duties and responsibilities, or whose sole object in undertaking it is to make an improper use of the funds which are thus placed at their disposal.
Various measures have been proposed, from to time, both by this society and in other quarters, for remedying the evil complained of, the magnitude of which is on all sides admitted. The plan of official trustees has been on several occasions discussed, and has, doubtless, much to recommend it.
Two objects appear to me to be mainly requisite, and, indeed, it is at the attainment of these which all the plans which have been proposed, alike seek to arrive. The first of these is, an investigation, without the expensive and tedious process of a suit in Chancery,
into the actual condition of the trust estate, more especially as regards the investments which have been made of trust pro
perty, and by obtaining which, wrongful acts, which are in progress, may be stopped, and both the estate, and the trustees of it, rescued from litigation and probable ruin. The other of these objects is the discharge from liability, and from the risk of future litigation and loss, of those trustees who have properly discharged their trust, or who desire to act fairly and honestly.
The difficulties, however, of obtaining any legislative enactment for this purpose--especially at the present time, when so many important measures are pressing upon parliament, though none of them in reality of half the consequence to the security and comfort of every individual in the community as is that now under consideration—appear to me to be almost, if not wholly, insurmountable. What I wish, therefore, to submit to the candid consideration of the learned members of the Law Amendment Society is, whether an initiatory measure—and which may possibly, I hope I may say probably, eventually lead the way to an Act of Parliament being adopted, and which would, at all events, be useful as an experimental measuremmight not at once be adopted by an order of the Court of Chancery (should the Lord Chancellor coincide in the opinion here entertained as to the desirableness of such a proceeding), directing that all trustees who desire an investigation into the state of the trust fund, and all cestuisque trust who are dissatisfied with the administration of the trust estate, may, on petition, have such investigation conducted before one of the masters, or one of the chief clerks, belonging to the Court of Chancery in London ; or before one of the registrars of the Court of Bankruptcy in the country; and which master, chief clerk, or registrar, shall make a report of the condition of such trust estate, and direct such proceedings to be taken for correcting errors, with regard to its administration, as should appear desirable.
Such a proceeding, it may be objected, will not have the effect of discharging a trustee from liability; but it will frequently accomplish what is more important still, by rescuing him from an erroneous course of proceeding, and directing him into a right path, so that the necessity for a discharge from liability will no
longer exist. In fact, instead of guarding against the liability, the liability itself would be removed. It will also be a satisfactory record of the trustee having discharged his duty aright, and may be referred to as such, when the estate has been properly administered. On the other hand, where a trustee is acting improperly, and refuses to submit to this inquiry, the cestuisque trust will have thereby ample warning that their property is in peril, and that they must adopt means for its rescue.
That something is now required to be done, is admitted by all who are conversant with the subject. But as we cannot obtain at once a legislative measure, why not endeavour to obtain a remedy of another kind, which appears practical in itself, and may have the effect of allaying, to a large extent, the evil of which the complaints are now so general and so just ? Should the experiment thus tried be found to answer, it would probably form the basis of a comprehensive, and I trust, efficient legal enactment that would deal fully with this question, which is one of vital importance to the whole community.
THE BAR EXAMINATION QUESTIONS.
TRINITY TERM, 1859. Questions by the Reader on Constitutional Law and Legal
History. 1. At what era of our history is the right of every man detained in prison to a trial a clear principle of our constitution ?
2. What was the limit which the charter of Henry the Third fixed to the amount of a fine ?
3. What is the first instance of parliament giving a conditional assent to the demand of supply?
4. What is Bracton's view of the prerogative? 5. When were justices of assize first instituted ?
6. When were writs of summons first issued to cities and boroughs ?
7. When did deputies of cities and boroughs finally become an integral part of the legislature?
8. What events important to our constitutional history happened during the reign of Richard the Second ?