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seems, both by its general meaning, and by the interpretation clause (sec. 25), to be limited to cases of loan and repayment, Again, with regard to the receipts of mortgagees, the ordinary receipt clause in a mortgage with power of sale, has a wider effect than is given to a receipt by the statute, and must therefore still be retained in all such mortgages; for it not only discharges the purchaser under the power from seeing to the application of the purchase-money, but also from inquiring whether the events in which the sale is authorized have happened, and this is not the effect of the statutory receipt clause.‘
It may be feared, also, that purchasers will derive no benefit from the provision intended to protect them from loss through fraudulent suppressions. No doubt, such a practice is well worthy of severe punishment; but it is said that the dread of being involved, however groundlessly, in criminal proceedings, will induce solicitors to deliver to purchasers, schedules of all documents in their possession, of whatever date, relating to the property, thus throwing upon the purchaser the onus of selecting such of them as may be material to the title.”
We believe that the fears of solicitors on this subject are groundless. No prosecution can be commenced without the sanction of the Attorney-general; and solicitors may be assured that a strong prime? facie case of fraud would have to be shown before such sanction could be obtained. The state ofour law on this point was certainly not creditable before the passing of the Act; and in the course of the discussion in the House of Lords in 1857, on the two bills which were then brought in by Lord St. Leonards, and which have since been curtailed and compressed into the present statute, Lord Cranworth remarked that ours was the only code which did not visit such offences with condign punishment. It was at his lordship’s suggestion that the ingredient of hard labour was added to the punishment of imprisonment.
‘ Hunter, p. 69.
2 This practice appears to be countenanced by a not very felicitously framed question proposed in last Michaelmas term to the candidates for admission as attorneys. The question is as follows :—“ What principle should govern the practitioner in setting forth the title to land after a contract for sale entered into ! Should all deeds afl"ecting the title be set out in the abstract I and what will be the consequence to the vendor and his solicitor if any be kept back!”
This 24th section does not contain any provision similar to that inserted in the Fraudulent Trustee Act, (20 & 21 Vict., ’c. 54¢, s. 11) to the effect that the criminality of -such suppressions or falsifications as are here spoken of, shall not avail to protect persons from making discovery, or giving evidence which they would have been liable to make or give, if the Act had not passed. It is questionable whether the omission of such a provision may not be found to impede defrauded purchasers or mortgagees in any attempt to retrieve their position, inasmuch as the guilty parties will now be able to decline answering interrogatories with respect to the transaction.
8. Tnnsrnns, Exnourons, AND Annrmsrnxrons, (Secs. 26 -—31.)———These sections are devoted to the relief of trustees, executors, and administrators. The 26th section relates to powers of attorney, and relaxes in favour of trustees and executors 1 the old strict rules, that no one could be the attorney of a dead man, and that no valid act could be done under a revoked power of attorney. A trustee, or executor, may now safely act on the supposition of the validity of a power of attorney, so far as the continuance of the life of the constituent, or the fact of the power not having been avoided, is concerned, provided that the death of the constituent, or other avoidance of the power, be not known to the trustee or executor. This enactment is in the nature of a privilege given to trustees and executors, by way, we may suppose, of compensation for the many difficulties and risks with which they are surrounded. Such amode of remedying grievances is not the most satisfactory that could be adopted; and we do not see any reason why the same privilege should not be extended to all classes of persons, so that any loss whatever, arising from the unknown avoidance of a power of attorney, might
fall upon the person who gave it, or his estate, rather than upon innocent persons.
1,l_;'<‘or bravity‘s sake we shall not, in the following remarks, specially name ad"""""'a¢0T-9; but it must be understood that all these clauses, -applying to
executors and the estates of testators, apply equallv to administrators and the estates of mtestates. ' ‘
* The 27th and 28th sections exempt executors from ‘personal liability, on the continuing covenants entered into by their testators, in leases and in conveyances on rent-charges. The exemption is obtained by satisfying all present liabilities, and making provision for any fixed and ascertained sum which the testator may be bound to lay out on the property; and in the one case, by assigning the lease; and in the other, by conveying to a purchaser the property out of which the rent-charge is payable. It is not, however, very evident ‘how an executor, in the latter ease, can convey the property, unless it should happen to be devised to him, or should be charged with debts, &c., so as to give him a power of sale. There is little to be said against the
justice of making rent-chargers look to the property charged as.
their security; but we think that landlords have some right to complain, that their interests have been overlooked in providing for the security of the executors of their lessees. It does not appear that the assignment need necessarily be bond fide, (Hunter, p. 83); it may therefore be made to a man of straw, and the only protection given by the Act to the landlord is, that he may follow the assets of the testator into the hands of the
persons amongst whom they may have been distributed. In
many cases this provision will, of course, afford no protection whatever.
Mr. Hunter has pointed out (p. 83) that the statute does not apply to the case where a testator has assigned his lease in his lifetime. There is no apparent reason for the distinction, and the case must have been overlooked.
Section 29 gives to executors issuing the usual advertisements,‘ that complete protection which formerly they could obtain only by means of a suit in equity. It is an excellent provision; for it secures to the creditors of a deceased person, -exactly the same opportunity of learning where and when to make their claims, and so of obtaining some share of the assets as has always been considered a benefit sufiicient to compensate
‘ A form of advertisement, and the modes of advertising, are given in Mr. .I_jInnter’s edition, p. 90.
them for the loss of their common-law right to proceed against the executor at any time, while the estate is saved the heavy burden of the “costs of suit.”
Section 30 enables trustees and executors to obtain the opinion, advice, or direction of a judge of the Court of Chancery, on any point relating to the management of the trust property, or the assets of the testator, in a summary manner, without formal pleadings. Several applications under this section have already been made, both in open court and in the chambers of the judges; and one of the Vice-Chancellors is understood to have said, that in passing the clause the Legislature appears to have forgotten the existence of the Bar of England, and that many matters had come before him which ought to have been decided in the chambers of a conveyancing counsel. It may be doubted whether his Honour, in making these observations, sufficiently remembered that no opinion, however fairly obtained, of any counsel, however eminent, is any protection to an unfortunate trustee, who has been led to commit a breach of trust on the faith that the facts submitted were accurate, and that the law applicable to them was correctly laid down. Under the statute
. no trustee or executor will be liable, if he act in good faith on
the opinion, advice, or direction obtained.
Section 31 provides that “every deed, will, or other instrument creating a trust," shall be deemed to contain a trustee indenmity clause, “in the words or to the effect" set forth in the section. Conveyancers have always been loth to avail themselves of clauses of this nature, which are seldom expressed “with suflicient accuracy to render a reliance upon them justifiable. The present section is no exception to the general rule. It does not apply in words to “shares,” which it may be contended are not included in the term “sccurities,"’ nor does it apply to any monies or securities which come into the hands of bankers, brokers, auctioneers, or others in the course of business, without being deposited, as for instance on sales and
.pu1-chases of lands, stocks, funds, or securities.
Moreover, there is an inaccuracy in the wording of the clause supposed to be incorporated in every instrument of trust. This clause is given in the section in inverted commas, and commences as follows :-“ That the trustees or trustee for the time being of the said deed, will, or ot/zer instrument, shall be respectively chargeable,” &e. Now, to give any effect to the section, the words we have italicised must be construed to mean in the case of a deed-“ these presem‘s,"’ in the case of a will-“this my wil ,"’ and in the case of any other instrument_“ this instrument.” Probably they would be so construed, but a ViceChancellor, a Lord Justice, or a Lord Chancellor might have his doubts on the subject, more especially if there should happen to be any recited “deed, will, or other instrument,” to which the words might by any possibility be held to apply. In the bill there was a provision that the clause should be construed beneficially for trustees; but the House of Commons did not approve of trustees being so benefited, and the provision was rejected.
9. INVESTMENTS, (Sec. 32.)---This section allows investments of trust property to be made in any government or real security in the United Kingdom, or on East India or Bank stocks. Two cases are reported as having arisen on this section; the first, Re Colne Valley and Halsted Railway Bill (29 L. J., Ch. 33), arose upon the petition of the parties interested, seeking to have certain money in court invested in the new East India stock, created under an Act passed on the same day with, but subsequently to, that which we are considering. Vice-Chancellor Wood appears to have thought that the Act gave no authority to make such an investment; but the Lord Chancellor thought that, whatever was the nature of the guarantee of the new stock, it was entitled to be called East India stock, and was therefore within the Act; the Lords Justices gave no opinion on this subject, but all the judges concurred in the determination that the Court ought not, in the exercise of its discretion, to sanction such an investment; and the Lord Chancellor, in the course of his judgment, referred tg