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- II.-ON was Pansnnr Posrrron or Exscurons AND TRUSTEES; WITH some Sueessrrons FOR AN EQUITABLE
Paovrsron roa THEIR. RELIEF. By Gsosss Hsmus,
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 ion 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 he 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 exouerating them from all liability on account of their trusteeships. N o 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 fimost certain to entail upon them.
It is quite unnecessary to urge on this society how very unsatis
factory 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 oflice 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. i
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 ofiicial 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 dilficulties, 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 measure--might 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 maybe 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 atrustee 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, eflicient legal enactment that would deal fully with this question, which is one of vital importance to the whole community.
THE BAR EXAMINATION QUESTIONS.
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?
~ 9. What is the earliest authority in favour of the right of the House of Commons to originate money bills?
10. What is the earliest assertion of the doctrine that the king ought not to take notice of matters pending in parliament?
V 11. Mention any instance in which this constitutional rule was violated.
12. Give an account of the manner in which secular peerages were created at the accession of Henry the Fourth.
13. What was the origin of the court of high commission as it existed in the time of Charles the First?
14. \Vbat was the case of Bates, in James the First’s time?
15. Give an account of the case of Cavendish, in the reign of Elizabeth.
16. Mention any instances in which the right of impeachment was exercised by the Commons in the reign of James the First.
17. When were feudal tenures finally abolished?
18. State the date and purport of the Act of Settlement.
19. Give an account of the causes which led to the trial of Sacheverell, and of the principles it established.
1. A sufficient answer to a bill having been filed, what are the courses which are open to the plaintiff ? Mention the advantages and disadvantages attendant upon each.
2. What is meant by the expression that a suit is abated? Can an abatement be partial ? In what manner is an abatement remedied according to the present, and in what manner was it remedied according to the former, practice of the court?
3. With what view is a plaintiff empowered to enforce an answer to interrogatories from a defendant? N o interrogatories having been filed by the plaintifl, is it ever, and when, expedient for the defendant that he should file an answer to the bill?
4-. A bill is filed by A. to set aside a. sale by his trustee to B.,
on the ground that it constituted a breach of trust. B. files u. plea, alleging simply that he is a purchaser for valuable consideration. A. replies to the plea, which is proved to be true. What will be the result of the suit? ' 5. A. dies intestate, leaving a wife, a first cousin, and a great nephew, but no issue or other relations. In what manner shall A.’s personal estate be divided? State the general rules applicable to the case proposed.
6. A., who is entitled to certain railway shares standing in his name, enters into a written contract with B. for the sale of the shares to him; B. refusing to perform his contract, can A. maintain a. bill praying that B. may be decreed to accept a transfer of the shares and to pay the purchase-money?