Pagina-afbeeldingen
PDF
ePub

otherwise to use the Chancery1 for the most trifling causes. And thus another method of adding to the delay and expense of litigation was put into the hands of the rich and unscrupulous litigant.

The sphere of the chancellor's jurisdiction was curtailed, but the business of the court continued to increase. The prosperity of the country was growing, with the result that life was growing more complex; and so more detailed rules were needed to guide the new activities and relationships which were emerging. Thus the chancellor had abundant opportunities for developing a set of principles and rules applicable to the various pieces of jurisdiction which he still retained. That he took these opportunities we shall see if we look at the manner in which he developed the principles of equity during this period.

In dealing with these developments I shall first speak of the development of the law as to Trusts. Throughout the history of equity this branch of the equitable jurisdiction has been by far the most important; and its principles have permeated many other branches of that jurisdiction. These trusts were in very many cases connected with marriage settlements or wills. The chancellor, in adjudicating upon them, was compelled to consider many problems of family law. To this branch of law, which was as yet very scanty, he thus made considerable additions. With some of these additions I shall deal in the second place. These two branches of the equitable jurisdiction presuppose a machinery capable of administrative work. The possession of this machinery naturally attracted other branches of jurisdiction to which such machinery was essential. Some of these begin to emerge during this period, and with them I shall deal in the third place. Fourthly, all these branches of jurisdiction presupposed a power to give in a suitable case a certain measure of specific relief; and we have seen that from the earliest period the chancellor had attempted to give this relief. The cases in which it would be given were beginning during this period to be reducible to certain categories. Fifthly, there is still a somewhat indeterminate list of cases in which equity gave relief against the rigidity of the law. They have not yet become distinct branches of the

1 In the case of Bristowe v. Phillips (1609), Monro, op. cit. 115-116, master Grimeston certified that the matter in question was only a debt of £9," which if the complainant do refuse or forbear speedily to pay and discharge, then I think the defendant is not to be restrained to take his remedy, by suing the obligation at the common law; and the rather, for that Honourable Court doth not use, or, by the dignity thereof, ought to admit the commencing of, or proceeding of, suits for so mean or petit sums or values"; cp. Dutton v. Philcocks (1565), ibid 355; Johnes v. Morgan (1565), ibid; Metcalfe v. Brough (1565), ibid 357-358; Browne v. Tachell (1566), ibid 359; Harbarde v. Readinge (1566), ibid 362.

2 Above 287-288.

equitable jurisdiction; but we can see that some of them were developing in this direction. We shall see, in the following section, that these developments have begun to affect the character of Equity.

Trusts.

3

We have seen that one result of the Statute of Uses, was to transfer from the court of Chancery to the courts of common law, jurisdiction over all that numerous class of cases in which A. was seised of an interest in land to a passive use in favour of B.1 But we have seen that there were a number of cases to which the statute did not apply. It did not apply to active trusts, to trusts of pure personalty, or to trusts of a term of years. We can find instances in the reports in which equity dealt with all these varieties of trusts. And it is probable that one of the results of the Statute of Uses was to increase the importance of trusts of long terms of years. By the machinery of long terms of years the king's rights over land held of him by knight service in chief could be evaded, and provision could be made by marriage settlement for widows and younger children.* Therefore, although the equitable jurisdiction over trusts had been diminished by the Statute of Uses, it showed, towards the end of this period, distinct signs of recovery; and in the cases decided, partly on the old principles applicable to uses, and partly on new principles, we can see the beginnings of the modern law as to trusts. We shall see that this competition of the court of Chancery had some influence on the manner in which the common law courts moulded the incidents of the new legal estates in the land—the shifting and springing uses and executory devises— which had come into the common law as the result of the enactment of the Statute of Uses and the Statute of Wills. 5

In the following directions we can see the beginnings of some of the modern rules of equity on this topic.

(1) We begin to see the modern classification of trusts. At the present day they are divisible, according to the objects for which they are created, into charitable or private trusts; and private trusts, from the point of view of the manner of their creation, are divisible into express trusts, implied or presumptive trusts, and constructive trusts. This classification does not, it is

[blocks in formation]

3 Active Trust, Cary 10, 11, citing Crompton 48b; Trust of pure personalty, Game v. Hoe (1628-1629), I Ch. Rep. 27-28; Bracken v. Bentley (1636-1637), ibid IIO-III; Trust of a term, Cary 11, citing Crompton 65a.

4 See e.g. Lyddal v. Vanlore (1626-1627), I Ch. Rep. 9-13: Earl of Newcastle v. Earl of Suffolk (1630-1631), ibid 50-52; below 306.

5 Pt. II. c. I § 4.

true, emerge till 1676; but it will be clear from the following cases that its foundations were laid during this period.

5

3

In the case of a charitable trust, the court," after a little hesitation, followed older precedents and allowed a gift in favour of an unincorporate group of persons. It repeatedly said that it would look favourably upon such trusts, and interpret the documents creating such a trust in the manner most beneficial to it. If there was any difficulty about carrying out the trust it would itself make a scheme for the purpose. We may perhaps see here the influence of the canonist leaning in favour of promises made for charitable purposes; and no doubt that influence was strengthened by the Elizabethan legislation in favour of these trusts.

8

9

6

The only difficulty arising with regard to the creation of an express private trust is to prove that it has been created. Equity exacted strict proof of this, unless the facts were admitted; 10 and it would appear that, at this period, it was not so ready, as at a later period, to allow that merely precatory words proved the existence of such a trust.11 Of an implied trust we get an illustration in the rule laid down in 1608-1609 that in equity executors did not necessarily take the undisposed-of residue beneficially, and that a trust might be implied in favour of the next of kin and charity. 12 Of constructive trusts we get many illustrations. The principle upon which they rested was already well known in the law relating to uses of freehold.13 illustration from the year 1579 will suffice.14 "The bill setteth forth, that Gibone, one of the defendants, in consideration of £286 did bargain and sell unto the plaintant certain lands in the bill mentioned; and made unto him a deed of feoffment, and a

1 Vol. vi c. 8.

One

2 Though by this time cases of trusts went to the court of Chancery, it may be noted that the Council sometimes interfered in cases of public charitable trusts, see e.g. Dasent x 197, 368 (1578)—a case in which Queen's and Lincoln College, Oxford, were concerned.

3 Vol. iv 439-440.

4" Mayor de Reading contra Lane, gift to pcor, because no corporation, void; yet relieved in 42 Eliz. li. A. fo. 706" (1599-1600), Tothill 7.

5 See Emmanuel Coll., Cambridge v. Evans (1625-1626), 1 Ch. Rep. at p. 21; "In cases of charitable uses, the charity is not to be set aside for want of every circumstance appointed by the donor; if it should, a great many charities would fai!," Joyce v. Osborne (1636-1637), Nelson at p. 41.

Mayor of Reading v.

6 Maggeridge v. Grey (1641-1642), Nelson 42-43; cp. Lane (1600-1601), Tothill 32; Steward v. Jermyn (1578-1579), ibid 30.

7 Doctor and Student, Bk. ii c. 24, cited above 295.

9

8 Vol. iv 398-399.

Mynn v. Cobb (1604), Cary 25, above 276 n. 3; Lake v. Phillips and Lake

(1636-1637), 1 Ch. Rep. 110.

10 Spring v. Upton (1579), Cary 81.

11 (1603) Cary 22-23; vol. vi c. 8.

12 Brereton v. Roberts (1608-1609), Tothill 87.

13 Vol. iv 424.

14 Ireby v. Gibone, Cary 82-83; cp. Rooke v. Staples (1579), ibid 76; Cosin v.

Young, Nelson 33-34.

VOL. V.-20

letter of attorney, to make livery and seizin; and before livery, made a lease to Cateline, who knew of the bargain, and he leased to Brown, who knew also of the bargain, and this appearing to this court to be true, an injunction is granted to the plaintant, until the cause should be heard and determined." As we can see from this case and others, the crucial point in these cases was the presence or absence of notice; and it would seem the court had already begun to consider the question of constructive notice. From a mere rumour notice would not be implied; but from the existence of a suit it would. It was a doubtful point whether a purchaser without notice from one with notice was bound.”

4

(2) The object of the trust must be legal. In 1601 the court refused to redress a breach of trust where the trust had been made to defraud creditors. Similarly the court declined to aid trusts which would defraud the king of his rights or would create perpetuities. In 15995 "Lord Egerton pronounced openly that he would give none aid in Chancery for the maintenance of any perpetuities, nor of any lease for hundreds or thousands of years, made of lands holden in capite; because the latter be grounded upon fraud, and the former be fights against God." Several cases show that the court acted upon these principles."

(3) The duties of the trustees were to hold themselves ready to deal with the property in accordance with the terms of the trust. The court would order the necessary conveyances to be made. They must invest money with due care; but the court did not as yet set an excessively high standard of prudence. "If the trustee let it (money) out to supposed able men (though they fail) (the court) will not charge the trustee for no more than he received."

"8

9

(4) With regard to the trustee's liabilities, it was settled that he could not plead the statute of limitation. As to the liability of co-trustees it was held that one was not liable for the mis

1" A conveyance absolute in words, and yet there is a bruit of trust, but doubtful whether there be a trust or not, and on hearing the bruit bought the land, yet shall not be concluded by such a bruit, as Sir Thomas Egerton said, Cornwallis's case 1595," Tothill 186.

2A suit is depending for a trust, and after upon hearing the trust is proved, then that is a sufficient notice of trust to any man which buyeth it, hanging the suit," Diggs v. Boys (1598), Tothill 186.

3 Pitts v. Edelph (1631-1632), Tothill 186.

4 Woodford v. Multon overruling Greene and Cotterell's Case, Cary 13. 5 Cary 8.

6 Bishop of Hereford v. Bright (1630), Tothill 43—a conveyance made to avoid wardship ordered not to be given in evidence; cp. Coke's statement in Lampet's Case (1612), 10 Co. Rep. at f. 52a; Risden v. Tuffin (1597), Tothill 122, "no relief in equity touching leases of one thousand years because they tend to defraud the " ibid 146, cases as to perpetuities.

crown;

7 Young v. Leigh (1577-1578), Cary 67.

8 Carew v. Peniston (1637-1638), Tothill 136.

9 Tothill 75, 89.

feasances of the other unless he took part in them,1 or unless by his negligence he made them possible.2

6

(5) We have seen that during almost the whole of this period the court did not attempt to evade the Statute of Uses by upholding a use upon a use.3 To do so would, as I have said, have been clearly detrimental to the royal rights to the incidents of tenure; 1 and we have seen that Egerton frowned upon leases for long terms of years upon this ground. But there are some indications that both the common lawyers and the chancellor agreed that relief might be given to the second cestuique use in the case of a charitable trust, or if a clear case of fraud could be proved. Bacon seems to hint at these possibilities in his argument in Chudleigh's Case' which was delivered in 1594; and an anonymous case reported by Cary illustrates its application: "If A sells land to B for twenty pounds, with confidence that it shall be to the use of A, yet A shall have no remedy here, because the bargain hath a consideration in itself; and such a consideration in an indenture of bargain and sale seemeth not to be examinable, except fraud be objected, because it is an estoppel." 8 In the precedents contained in the 1615 edition of West's Symboleography an attempt is made to impose a trust upon the bargainees in a bargain and sale; and in Sir Moyle Finch's Case,10 in 1600, it seems to have been admitted that, though the trust at issue in that case was not enforceable, a trust, though it was the trust of a use, if it was clearly proved, might be enforced in equity. As this case affords a good illustration of the views held both by the common lawyers and by the chancellor at this period upon this matter, it is necessary to examine its somewhat complicated facts.

Queen Elizabeth granted by letters patent to Sir Moyle Finch and John Awdelye and their heirs, certain lands, on trust to convey some of them to Sir Thomas Heneage and Anne his wife and the heirs of Anne, and to convey others to Sir Thomas Heneage and Anne his wife and the heirs of Sir Thomas. The lands were conveyed accordingly by bargain and sale. Thomas had an only child Elizabeth. Anne died; and Sir

[blocks in formation]

3 Vol. iv 472-473.

4 Ibid.

5 Above 306.

Sir

646 Although in the habendum a trust is declared, that without question cannot make the bargain and sale void, but the conveyance, being by bargain and sale, was wisely made to declare the confidence and trust," Case of Sutton's Hospital (1613), IO Co. Rep. at f. 34a.

7" The said feoffees in special cases which pretend favour may be enjoined out of Chancery, where uses always have been ordered, that they shall not do any act to the prejudice of the use which may thereafter arise, and the subpœna in this case be revived," Works (Ed. Spedding) vii 636.

8 Cary 14.

§ 284.

10 Coke, Fourth Inst. 85-86.

« VorigeDoorgaan »