The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, FEBRUARY 12, 1848. "Quod magis ad NOS Pertinet, et nescire malum est, agitamus." HORAT. THE CONSTITUTION AND PRAC-siderable opportunities of ascertaining the TICE OF THE ARCHES' COURT. OUR last number contained, without any material abridgment, the observations which fell from Sir Herbert Jenner Fust, in reference to the unfortunate circumstances disclosed in the case of Geils v. Geils, which have necessarily drawn so large a share of public attention to the constitution and practice of the court over which that learned civilian presides. feelings of the profession, we have not heard his decisions impugned or complained of more frequently than those of any other judge in the courts of law or equity. We believe, Sir Herbert Jenner Fust is entirely mistaken when he supposes that any one has accused him of "general corruption," or "undue partiality." His unblemished character during the course of a long and honourable professional career would be a sufficient answer to such a charge, and in It is natural and not unbecoming, that truth no such charge has ever been made. It the learned judge should be sensitive, and is said, with the force that truth never fails to anxious to repel the attacks made upon a bring with it, that Sir Hebert Jenner Fust tribunal in which he has practised or pre- is unfortunately placed as the sole judge in sided for a period exceeding forty years; a court in which the suitors, at one side or and, so far as these attacks have been di- the other, are constantly represented by his rected personally against Sir Herbert Jenner nearest relatives. It is contended that this Fust, it may be at once conceded that his is a position in which no judge, however vindication is complete. We cannot, indeed, pure or high-minded, ought to be constantly assent to the proposition, that the general placed. It is a position in which the detercorrectness of a learned judge's decisions, has mination to resist ordinary impulses may been conclusively established, because an lead to results unfavourable to justice,-in inconsiderable proportion of his decrees which the anxious desire to be just may dishave been reversed, on appeal. In every pose the most upright man to deal unjustly. court much depends upon the discretion of At all events, it is a position not calculated a judge, in cases where an appeal is neither to secure public confidence in the exercise practicable nor advisable, and a weak or of judicial functions, and is therefore to be timid judge may generally find means to deplored. Upon this subject, on which so save himself from the mortification conse- much has been said and written, we do not quent upon the frequent reversal of his de- find a single remark in the prepared and cisions. Our estimate of the soundness and elaborate statement put forth by the judge justice of the judgments pronounced by the of the Arches' Court. learned judge of the Arches, however, is The learned judge has also misdirected founded on the fact, that in the lengthened his explanations upon another point. He period during which he has filled the judicial seems to have conceived that those who call seat a period of thirteen years-with con- for the reform or abolition of the court over VOL. XXXV. No. 1,040. Q 354 The Constitution and Practice of the Arches' Court.-Attorneys Undertaking, &c. which he presides, found their arguments | portion of his life has been passed, or, upon the supposed abuse of his patronage, perhaps, from habit has become insensible in respect of offices connected with the court. to the defects of a system which shocks Upon this assumption the learned judge has others. "It has no faults, or he no faults laboured very vigorously, and it must be can see." But the public will have little confessed, very triumphantly, to disabuse difficulty in distinguishing between the the public mind. He has shown conclu- venerable judge and the odious monopoly clusively that he never has had any with which his name is accidentally conpatronage to dispose of, beyond the ap- nected. The one may, and we trust will, pointment to two insignificant offices, the live to enjoy the esteem of his own circle, emoluments of which taken together do not and the respect of the world, long after the amount to 50l. per annum; and that those other has been abolished with the universal have been disposed of in a manner most approval of the disinterested portion of the praiseworthy and honourable to the patron. community. The complaint which the learned judge has Our readers cannot fail to have observed, demonstrated to be so totally unfounded, that the address of the judge of the Arches' however, only existed in his own imagina- Court was not exclusively of a defensive or tion. It has never been publicly relied vindicatory character. Pursuing a course upon, or alluded to, by those who wish to of procedure almost peculiar to the Eccle see the Arches' Court reformed, or placed siastical Courts, he indulges pretty liberally on a different footing, for different and far in recriminative charges. He meets Dr. more substantial reasons. It is thought by Addams' attack upon the court by commany, that the court, in matters uncon-menting in terms of unqualified disapproval nected with church discipline, has ceased to upon the language, the tones, and the be useful; that it exercises a jurisdiction gestures of the learned advocate, and not only useless, but pernicious and mis- accuses him in express terms of a flagrant chievous; and that its continued existence, as violation of professional etiquette, in drawat present constituted, tends to perpetuate ing the pleadings, answers, and interroga a system disgraceful to an enlightened com- tories, without communication with the munity, and wholly repugnant to the great proctor acting for Mrs. Geils; and with principle, that laws should afford equal having personally seen and communicated means of redress to the rich and poor. The with two of the most important witnesses. course of proceeding pursued in the Eccle- Upon those charges Dr. Addams has yet siastical Courts in what are called matri- had no opportunity afforded him for explamonial causes,—as exemplified in this case of nation. In ordinary cases, the course said Geils v. Geils,-renders those courts an in- to have been pursued by that learned gentolerable nuisance, and the evil is enormously tleman would certainly be considered unaggravated by the circumstance, that those usual, inconvenient, and irregular. Whether who have the misfortune to be dragged be- the circumstances of this extraordinary case fore such tribunals, are forced to resort for justified so remarkable a departure from professional assistance and advice in circum- ordinary rules, we cannot venture at present stances the most novel and delicate-not to to determine: it is a question of importthose in whom they have previously reposed ance, affecting the professional character of their confidence-but to strangers, who, Dr. Addams, upon which it is only fair that however able and respectable individually, public opinion should be suspended, until consist for the most part of gentlemen ample opportunity is afforded for expla whose names are unknown beyond the nation. snuggery of Doctors' Commons. The Ecclesiastical Courts are based upon principles too narrow and illiberal to entitle them to, or render it possible they can possess, the ATTORNEYS UNDERTAKING TO INQUIRE INTO sympathy or support of the legal profession SUFFICIENCY OF SECURITY. or the public. For all this, we unreservedly admit, the judge of the Arches' Court is no more to blame than any one of his predecessors. He appears to do himself the injustice of supposing that the attacks directed against the institution of which he is a minister, are levelled personally at him. He seems to find it impossible to dissociate himself from the courts in which so large a 355 Attorneys Undertaking to Inquire into Sufficiency of Security.-Notes on Equity. The point discussed was, whether from it was insisted, on the part of the defendants, such a retainer an undertaking can be im- that the second branch of the promise alplied to examine into the value of the se- leged, extended to the ascertainment of the curity, as well as the title of the grantor, sufficiency of the land charged in point of and this question was ultimately decided in value, otherwise, it was said, it would be a the negative. mere repetition of the first branch, which provides for the ascertainment of the legal The facts upon which the action was founded were shortly as follow:-The requisites. plaintiff (Mr. Hayne) being desirous of The court, however, was of a different becoming secretary of a proposed company, opinion, and Lord Denman expressed his to be called the Holborn Improvement regret that he had not suffered the case to Company, in order to obtain that situation, go to the jury. "I thought," said the agreed with a Mr. Ross, the promoter of learned chief justice, "that the undertaking, the company, and who had the power of ap- as laid, did not stop at the legal investigapointment, to advance a sum of 600l., for tion of the title, but meant more, but upon the benefit of the company, Ross securing further consideration, I think this is not the repayment of that sum, with interest, so." Mr. Justice Patteson, also, very upon the occurrence of certain events, by clearly pointed out the distinction between charging some landed property in Somer- ascertaining that the title was good, and setshire, in which he possessed, or was sup- that it was a sufficient security. A title," posed to possess, some interest. The plain- says that learned judge, "may be good, and tiff advanced the money, and the proposed yet from its nature insufficient as a security; security was duly executed by Ross. Messrs. for instance, if the party had a perfectly Rhodes and Co. were the plaintiff's solici- legal title, but only for a short time. The tors in this transaction, and looked into the two phrases do not mean the same thing, sufficiency of Ross's title to the lands in therefore the undertaking to ascertain the question. The security was afterwards sufficiency of a security does not compresupposed to be inadequate, and Hayne hend an undertaking to inquire into its brought an action against his attorneys, value." NOTES ON EQUITY. PROPERTY. 66 DEVISE TRUST and averred in his declaration, that he em- Upon these grounds, the court thought ployed them as attorneys, to use due care the nonsuit incorrect, and made the rule in ascertaining the title of Ross to the lands absolute to set it aside. which were to be charged as security for payment of 6007., and to take due care that the same should be a sufficient security for payment of the 6001. The defendants specially traversed this allegation, and at POWER OF TRUSTEES TO the trial, it appearing that the defendants had been retained in the ordinary manner to investigate the security, Lord Denman, ing the power of trustees to devise trust (who tried the cause,) thought the evidence property. The Vice-Chancellor of England did not support the declaration, for that the holds that a trustee ought not to devise an averment in the latter, that the defendants estate vested in him in that character, but were to take care that the security was suf- to permit it to descend. This was decided ficient, imported that they were to inquire in the case of Cooke v. Crawford. into its value, and as no such undertaking was created by the retainer, or could be implied, he nonsuited the plaintiff. Upon a rule for setting the nonsuit aside, the import of the allegations in the declaration, that the defendants promised to use due and proper care and diligence in and about ascertaining the title, and to take due and proper care that the lands should be a sufficient security for the repayment of the money advanced, were fully considered; and THERE are conflicting decisions regard There, one William Hall devised his real estates to William Hall, John Burkitt, and W. Woolley, in trust that they, or the survivors or survivor of them, or the heirs of the survivor, should, as soon as conveniently might be after his decease, but at their discretion, sell the same; and he empowered them and their heirs to make contracts with, and conveyances to, the purchasers; and declared that the receipts of them or the survivor or survivors of them, or the heirs, executors, or administrators of such survivor, should be The form of the declaration, so far as it in-good discharges to the purchasers; and he volves the question submitted for the con- directed that they, their heirs, administrasideration of the court, was that given in 2 Chitt. Plead. (7th ed.) p. 282. "13 Sim. p. 91. tors, and assigns, should hold the proceeds assets of the trustee. I see no substantial disof the sale upon certain trusts. Burkitt and tinction between a conveyance by act inter vivos Woolley disclaimed, and William Hall, the and a devise; for the latter is nothing but a son, alone acted. He devised the estates to post mortem conveyance; and, if the one is unM. and N. upon the trusts affecting the lawful, the other must be unlawful. It appears After his death, M. and N. agreed field has been acquiesced in, the question to me that, as my decision in Bradford v. Belraised by the demurrer in this case is concluded by that decision; but if it is not, then the authority of Townsend v. Wilson is binding on the point." same. to sell the estates to P. The Vice-Chancellor, in his judgment, said, "It is plain that the persons whom the surviving trustee has thought proper to appoint to execute the trusts of the testator's will, are persons to whom no authority was given for that purpose, by the testator; and there is no case in which a person not mentioned by the party creating the trust, has been held entitled to execute it. I have always understood, ever since the point was decided in Hawkins v. Kemp, (or rather was, as the judges said in that case, properly abandoned by the defendant's counsel, as not capable of being contended for,) that, where two or more persons are appointed trustees, and all of them, except one, renounce, the trust may be executed by that That decision, if it may be so called, has been approved of by Lord Eldon and other judges." one. b His Honour observed, that the testator had not used the word "assigns" either in the clause in which he created the trust for sale, or in either of the two clauses that followed it, in which he pointed out the machinery by which the sale was to be effected. "He does not introduce that word until he begins to speak of something that is to be done after the sale has taken place, that is, until he declares the trusts upon which the proceeds of the sale are to be held. Therefore, it is plain that when William Hall, who, by the disclaimer of Burkitt and Woolley, became the sole trustee, thought fit to devise the legal estate that was vested in him, he did an act which he was not authorized to do." And then the Vice-chancellor emphatically protested against the proposition, which was stated in the course of the argument, that it was a beneficial thing for a trustee to devise an estate which was vested in him in that character. My opinion is," (said his Honour,)" that it is not beneficial to the testator's estate that he should be allowed to dispose of it to whom soever he may think proper; nor is it lawful for him to make any disposition of it. He ought to permit i to descend; for, in so doing, he acts in accordance with the devise made to him. If he devises the estate, I am inclined to think that the court, if it were urged so to do, would order the costs of getting the legal estate out of the devisee to be borne by the b 3 East, 410. d Lord Langdale, in another case, to which his lordship gave great consideration, decided differently. The case we refer to was that of Titley v. Wolstenholme. There the testator, Richard Titley, devised real and personal estate, on certain trusts, which the court considered the testator intended to be performed by the trustees named, and the survivors and survivor, and by the heirs and assigns, or by the executors or administrators, of the survivor. The will contained no power to appoint new trustees. The surviving trustee, Robert Tebbutt, devised and bequeathed the trust estates and powers to Edward Titley, David Waddington and Charles Wolstenholme, upon the trusts of the first will. The Master of the Rolls said, "The question is, whether the devisees in trust, under the will of Robert Tebbutt, have, by virtue of the devise, lawfully become trustees of the estates devised by the will of Richard Titley. It is admitted that the legal estates and interests which were vested in Robert Tebbutt, as surviving trustee and executor, have, by virtue of his will, become vested in his devisees and legatees; that they, as such devisees and legatees, are under an obligation so to dispose of such legal estates and interests, that the cestuis que trust under the will of Richard Titley may have the benefit of them; but it is alleged that they have not themselves any legal authority to execute the ought to be appointed for the purpose by this trusts, and consequently, that the new trustees court. "The testator has not, by his will, given any power to appoint new trustees, and it is thereupon argued, justly, that the trustees, or the survivors or survivor of them, could not, by any assignment or act inter vivos, relieve themselves from the responsibilities and duties of the trust; but it is further contended, that the same disability attends any assignment by way of devise or bequest, and that, although the estate and property may be vested in the devisees or legatees of the surviving trustee, the duties and the responsibilities attending the execution of the trust's remain in the legal re c2 Sim. 264. d 1 Barn. & Ald. 608; 3 Madd. 261. © 7 Beav. 425. Notes on Equity.-The Palace Court. 357 presentatives, real and personal, of the sur- of trust by not permitting the trust estate to viving trustee." descend, or by devising it to proper persons, His Lordship thus proceeded to state the hands of the surviving trustee. But the case on the trusts to which it was subject in the general doctrine of the court : "When a trust estate is limited to several trustees, and the survivors or survivor of them, and the heirs of the survivor of them, and no power of appointing new trustees is given, we observe a personal confidence given, or at least probably given, to every one of the several trustees. As any one may be the survivor, the whole power will eventually come to that one, and he is entrusted with it, and being he is not, without a special power, to assign it to any other ; he cannot, of his own authority, during his own life, relieve himself from the duties and responsibilities which he has undertaken." so, so considered is not the present case. We have in this will expressions which clearly show that the testator intended the trusts to be performed by the "assigns" of the surviving trustee; and in construing the will we must, if practicable, ascribe a rational and legal effect to every word which it contains. We cannot, consistently with the rules of this court, con sider the word "assigns" as meaning the persons who may be made such by the spontaneous act of the surviving trustee to take effect, during his life; but there seems nothing to prevent our considering it as meaning the persons who may be made such by devise and bequest; and if we do not consider the word "assigns" as meaning such persons, it would in this will have no meaning or effect whatever. "We cannot assume, (said his Lordship,) that the author of the trust placed any per- "For these reasons, and under the circumsonal confidence in the heir of the survivor; stances of this case, I am of opinion that the it cannot be known beforehand which one devise and bequest made by Robert Tebbutt of of the several trustees may be the survivor; the trust estates held by him under the will of and as to the contingent survivor, it cannot Richard Titley, was a good and valid devise be known beforehand whether he may have given to Edward Titley, David Waddington, and bequest; and that the estates thereby an heir or not, or whether the heir may be and Charles Wolstenholme, are vested in them, one, or may consist of many persons, trust- on such of the trusts thereof declared by the worthy or not, married women, infants, or will of Richard Titley as now remain to be perbankrupts, within or without the juris- formed." diction." THE PALACE COURT. "The reasons, therefore, which forbid the surviving trustee from making an assignment inter vivos in such a case, do not seem to apply to an assignment by devise or bequest; which, THE jurisdiction of the Palace Court is being made to take effect only after the death not affected by the County Courts' Act, and of the last surviving trustee, and consequently as a reasonable remuneration is allowed in after the expiration of all personal confidence, that court for professional costs, and the may, perhaps not improperly, be considered as system under which justice is administered made without any violation or breach of trust. It is to take effect only at a time when there there, is in other respects considered more must be a substitution or change of trustees: beneficial to suitors than that which prevails there must be a devolution or transmission of in the County Courts, there has lately been the estate to some one or more persons not im- a very marked increase of business in that mediately or directly trusted by the author of court. Indeed, we have heard that the the trust." The estate, subject to the trusts, must pass either to the hæres natus or the hæres factus of the surviving trustee, and if the heir or heirs-at-law, whatever may be their situation, condition, or number, must be the substituted trustee or trustees, the greatest inconvenience may arise, and there are no means of obviating them, other than by application to the court. profits of the limited number of practitioners belonging to the court has increased fourfold since the establishment of the County Courts. The practice, as most of our readers are aware, is confined in the Palace Court to four barristers and six attorneys. A monopoly of this description is, of course, admitted to be highly objectionable, and it is authoritatively stated, that the AttorneyGeneral has intimated an intention of proposing some legislative measure to remedy "With great respect," (added his lordship,) the evil, but as all the practitioners in the for those who think otherwise, and quite Palace Court have paid considerable sums aware that some inconveniences, which can only be obviated in this court, may arise from of money for their offices, it is not to be devising trust estates to improper persons, for expected that their exclusive rights can be improper purposes, I cannot at present see my interfered with without giving them full way to the conclusion, that in the case contem- | compensation. Until this difficulty has plated the surviving trustee commits a breach been satisfactorily adjusted, no material al |