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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 other instrument, shall be respectively chargeable," &c. 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 presents;” in the case of a will—“this ту will;" 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 to
a letter he had received from Lord St. Leonards, expressing his : intention to introduce a bill for the repeal of this clause, which was inserted (as we pointed out in our last Number, p. 191) during the passage of the bill through the House of Commons."
The other case to which we have alluded is In Re Miles' Trusts, (29 L. J., Ch. 47), in which an application was made. by a trustee, under the 30th section, for the advice of the Master of the Rolls, as to the propriety of a proposed investment in Scotch real securities. The trust in this case was under an instrument dated prior to the passing of the Act, and his Honour thought that the section was not retrospective, so that the act in no way enlarged the discretion of trustees of existing instruments; his Honour, moreover, without giving any opinion on the effect of the usual final clause, “this act shall not extend to Scotland,” did not, in his discretion, think right to advise a trustee to make an investment on Scotch securities.
We apprehend that there can be little doubt that Scotch investments are authorized by the Act; and on the question, whether the 32nd section be prospective only, we must observe that the words of futurity “shall not be forbidden,” seem to be used by the Legislature with reference to the future time at which the investment is made, and not to that at which the instrument creating the trust is executed. The form in which the question arose in Re Miles' Trusts, prevents that case from being held as a binding authority upon the point, which probably, sooner or later, will be settled in a hostile suit.
The insertion of this section in the Act, to meet the selfish views of particular persons, cannot be too severely reprehended ; and it would be a just retribution if, on the ground of the clause not being retrospective, the trustees under the will we have referred to in our note were held responsible for retaining securities which the will did not authorize them to retain. It is
1 It is understood that the clause was introduced to suit the convenience of some persons interested in the estate of a certain testator, who died possessed of a very considerable amount of Bank Stock and Indian securities, but whose will contained no provision enabling his trustees to retain such investments.
deeply to be regretted that the forms of parliament compelled the noble lord who had charge of the measure, to allow it to receive the royal assent without the removal from it of its greatest blemish.
In other respects the Act, notwithstanding the defects we have mentioned, and some others of minor importance, is, taken as a whole, a most valuable instalment of a really effective course of reform of “the Law of Property.”
We have in the course of our remarks on this important statute, made frequent reference to Mr. Hunter's edition of the Act. This we have done for our own convenience, because we had found it from the first a very useful work; and, moreover, we had the duty imposed upon us of testing its accuracy in detail, that we might speak with certainty of its merits. used the stereotyped phrase of, “ we commend this book to our readers," it might only signify that it was ordinarily well prepared, and not ordinarily ill got up to sell. We therefore prefer to say, that, upon careful examination and sifting, we are willing and desirous to pledge ourselves that Mr. Hunter (who has already distinguished himself as a sound and accurate law-writer in his “Suit in Equity” ') has now produced, in his edition of Lord St. Leonards’ Act, a work, which must bring him, both as a master of legal principles and a practical lawyer, augmented reputation. To each of the divisions composing the statute, the editor has prefixed introductory remarks, wherein he points out clearly the state of the law prior to the passing of the Act, and the evil which it is intended to remedy; and to each division he has appended excellent and practical notes on the wording and effect of the sections themselves. The work, indeed, proves to us that an Act of Parliament may be edited skilfully by a learned man so as to be worthy of his professional credit, and useful alike to doctor and student.
6 1 An Elementary View of the Proceedings in a Suit in Equity, by S. J. Hunter, Esq., B.A., barrister at law, and Holder of the Studentship of the Inns of Court.”
HE absolute independence of all Judges is a first principle in
our constitution, and is the very foundation-stone both of our liberties and of the administration of justice. No less ought the independence of magistrates in an inferior station be kept entire. This latter class has not only judicial functions to perform, but certain duties which are quasi judicial; and others of a discretionary kind, which make partiality much more easily and safely exercised than in the deciding of causes. If this latter class of magistrates were appointed by the executive government--that is, by some minister responsible for his selectionthere could be no doubt whatever that their absolute independence would be the rule.
Lord Eldon carried this principle so far, that he refused to exercise the power of removal undoubtedly possessed by the Crown-that is, by the holder of the Great Seal-against any person who had been put in the commission of the peace, whatever misconduct he might have been guilty of, unless there had been a prosecution and a conviction. This was possibly a safe rule to lay down ; yet it ought to have been accompanied with some restriction
upon the appointment of Justices, which is known to rest almost entirely with the lords-lieutenant of counties, who, from party connection or from personal favour, may often place unfit persons in the commission.
The existence of the power to remove Justices, generally speaking prevents any gross misconduct; because the matter can be brought before the public in various modes, and would inevitably find its way into the houses of parliament. But there is a class of magistrates exercising all the functions, judicial and otherwise, of Justices, who are irremovable; and who are appointed by no responsible minister, but by a body of their fellow-citizens—we mean the Borough Justices, and to them we purpose directing the attention of our readers.
When we say that these corporation magistrates are appointed without any minister being responsible, we do not forget that the consent of the secretary of state is required under the Municipal Act in many cases ; but we conceive that this consent is given as a matter of course, unless there be some manifest objection known to all the borough. The town-council, in fact, chooses the persons whose names are submitted ; and there is, therefore, no real responsibility, because there is no individual responsibility. In counties the lord-lieutenant is responsible, and this affords a material check to bad appointments : in boroughs, it may truly be said, no one is responsible. But in many cases the magistrates are chosen without a veto in the secretary of state ; and we shall instance that of the city of London as the most remarkable case, and it is, unhappily, the one in which the most glaring misconduct is not unfrequently exhibited. We may advert by way of illustration to one or two examples.
It has of late years become the practice for persons having a claim, real or supposed, against any person, to go before the sitting magistrate, and, under the form of asking his advice (which he, in ninety-nine cases out of every hundred, had no authority or right to give), to state whatever they choose against an absent party; and the magistrate, instead of refusing to interfere, in most cases gives his opinion--of course against the absent party. The whole is reported in the newspapers. In one case, a person stated his claim to part of the estate of a great peer in one of the northern counties. The Lord Mayor, who was the sitting magistrate of the day, must have known that this was a matter which he had no more right to hear than he had to hear the claims of the Pretender to the Crown, yet he allowed the party to tell his story, and issued a letter, sealed with the city seal, to the duke, calling his attention to the man's claims. In another instance, a woman appeared as the widow of an eminent person deceased ; and, representing her distress to be great, stated that the king had given to two peers a certain sum of money for her behoof, but that their lordships withheld it from her. The Lord Mayor (another than the one before whom the case last mentioned