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the sanction of the court. Chancery will have a bite at the oyster. Even where the parent has been proved too poor to support the infant and maintenance accordingly allowed, the repayment of former outlays on that account was not suffered. (Ex parte Bond, 2 My. & K.)
Keeping up a trusteeship by the appointment of new trustees in the place of those deceased or desirous of retiring, and by vesting the property effectually in the continuing and new trustees as joint tenants, is one of the most technical and expensive operations of conveyancing. The smallest oversight leads sometimes to incalculable and fatal confusion. A word out of its place in the power of appointment, a slight slip of the ingrosser's pen, or the attorney's eye, may nullify every attempt at rectification. The least variation from the usual form necessitates the conveyancer's most anxious attention. Say, that a power of new appointment is limited to a "surviving or continuing trustee. It is thought by the erudite superstitious, that a surviving trustee should not appoint two trustees in the place of himself and the deceased trustee, but first appoint a person in the room of the deceased trustee, and then the person so substituted may, as continuing trustee, appoint a new trustee in the place of the one desirous of retiring. When there are many different kinds of trust property the ingenuity of the draftsman is taxed to the utmost. Where the property is realty, settled to uses, there must be a revocation, a conveyance to a provisional trustee, and a re-conveyance by such provisional trustee to the remaining and newly appointed trustees upon the old uses. Personalty always demands an assignment and re-assignment to obtain a joint-tenancy in the continuing and new trustees. Besides all this double toil and trouble, the retiring trustees will probably want voluminous releases. It may be that the trust has not the felicity of a power to change and renew trustees, or that it is destroyed by some inadvertency, when recourse to Chancery is inevitable. It also frequently happens that a trustee is lunatic, is an infant, or is contumacious, that he is out of the jurisdiction, that it is unknown whether he be living or dead, or which is the surviving trustee, or whether the surviving trustee left a heir or devisee, in all which events a Chancery process must ensue.
Now on the hypothesis that a trustee has scrupulously fulfilled his trust, and retires with a due release, and with the united thanks of his cestuis que trusts, is he to be considered free from future danger? The well known case of Knatchbull v. Fearnhead (3 My. & Cr.) directly manifests the contrary. There a breach of trust took place in the years 1801 and 1804 re
spectively. The two trustees implicated therein died, one in 1814 and the other in 1824. The suit was instituted in 1833 to charge the personal representatives of the trustees deceased with the loss consequent on the alleged breach of trust. The executors of one trustee admitted in their answer the receipt of sufficient assets, and stated that they were wholly ignorant of the existence of any such trust as in the bill alleged until 1830, and that they had accordingly administered the estate of their testator, and finally divided the residue among the residuary legatees. Notwithstanding their total want of knowledge, not only of the breach but of the very trust itself, they were held liable to make good the loss, occasioned by the misfeazance of their testator, out of their own proper monies, and the Chancellor laid it down, that a trustee and executor, who pays away residue without passing his accounts in the court, does so at his own risk.
In all that has been before adduced we have given the trustee credit for good faith and right intentions. If he be dishonest and of evil intent his powers of malversation are unlimited. He may spoliate to any extent by wilful default or fraudulent alienation. He may freely appropriate the trust personalty to his own use, and convert the realty to personalty for a similar design. A person purchasing a trust estate with full notice of the fraud may make a good title to a purchaser from himself without notice and mutatis mutandis. He may collude with a profligate husband or unnatural father in cheating the wife and children out of their lawful provision. And when the cestuis que trusts become capable and desirous of seeking redress for their wrongs, their remedy is a suit in Chancery and the personal responsibility of an insolvent trustee-a ruinous superannuated justice, and tardy restitution of—"no effects.
Enough has now been said, it is hoped, to demonstrate the deficiencies both in principle and in expediency of the present structure of trusts. The institution of a public trusteeship would meet all the evils impeached. The commencement of a trust would be unequivocal and its transmission simple and inexpensive. Its multifarious duties would be performed with regularity by an experienced and unprejudiced person. The trust property would be guaranteed from waste and misappropriation. Family feuds would cease for want of a ground of contention, and in conclusion the Court of Chancery would be relieved of a vast quantity of scandalous and contemptible business, calculated to bring discredit on any judicial system. T. W. L.
ART. II. THE LIABILITIES IN THIS COUNTRY OF FOREIGN SOVEREIGNS.
TWO decisions have very recently been made by the Court of Queen's Bench, which involve matter of so much importance to merchants and others having dealings of any kind with foreign crowned heads, as well as interest to the profession, both from their bearing on that subject and upon questions of the extent and nature of the custom of proceeding by way of foreign attachment in the ancient courts of the city of London, that we hasten to lay before our readers some observations on the law therein laid down. Judgment in both these cases was delivered on the 28th of May last. The short statement of the first of them is as follows. Some time ago the present Queen of Portugal's government took possession of certain monies of A., then in the hands of his banker at Lisbon. A., finding that the Queen of Portugal has a sum of money in the hands of B., within the city of London, attaches the last-mentioned sum by means of the usual process of foreign attachment, issuing out of the Lord Mayor's Court. The queen moves for a prohibition, and the questions made are, whether the goods of a sovereign prince are liable to this process, and whether such process is available at all where the cause in the first instance arises out of the jurisdiction? The Court of Queen's Bench have decided both questions in the negative, relying in the first instance partly on the statute 7 Anne, c. 12, making void from the date thereof all process whereby the person of any ambassador, or of his domestic servant, may be arrested or his goods distrained or seized; and making all persons prosecuting, soliciting or executing such process violators of the law of nations and disturbers of the public repose, and subjecting them to such penalties and corporal punishment as the Lord Chancellor and the two Chief Justices, or any two of them, shall think fit; and partly on the circumstances attending the passing of that statute, which are thus treated in the judgment. On the occasion of the outrage (the arrest for debt of the Russian ambassador) which gave rise to that statute, Lord Holt was present as a privy councillor to advise the government as to the fit steps to be taken, and with his sanction seventeen persons, who had been concerned in arresting the ambassador, were com
De Haber v. Queen of Portugal.
mitted to prison, that they might be presented by information at the suit of the Attorney-General. Can we doubt that in the
opinion of that great judge the sovereign himself would have been considered entitled to the same protection, immunity and privileges as the minister who represented him?" Now, passing by the irregularity of a chief justice sworn (as was the fact) a privy councillor for the occasion, advising in the cabinet on the committal of parties whom he was afterwards himself to try, and whom he did try, and many of them being convicted of the facts, he reserved the question of law, how far the facts were criminal, to be afterwards argued before the judges, which question was never determined,1--let us observe that the whole question, whether the sovereign would have been considered entitled to the same immunities as his ambassador, depends not on Lord Holt's opinion, much less on any inference as to what his opinion might have been, if the case had arisen, but solely on the law of nations, which is part of the common law. Nevertheless, is it not obvious that the offence of these parties must have been, in the opinion either of Lord Holt or of the judges, or both, of a very slight character, otherwise a little more punishment would probably have been inflicted upon them than they actually suffered? They do not appear to have been punished at all, or even ever to have had judgment against them. Then the law of nations, as most lawyers know, is gathered from usage and authority, and common consent. But the usage of nations at the time of the above-mentioned outrage, and long after, was to arrest ambassadors for debt, &c. much like other people. Vattel3 mentions a case of a foreign minister in France, in 1771, and nine years after the above event Count Gyllenborg, the Swedish ambassador to the court of St. James's, had his papers seized, and was himself arrested and sent home in custody on suspicion of a misdemeanor, notwithstanding the statute and the law of nations, which it professes to declare and confirm. Grotius, the father of the law of nations, lays down the rule with very considerable hesitation. "De non violandis legatis," he says, "difficilior est quæstio, et
1 1 Bla. Com. 255.
2 Grotius, Prolegom. 40; Bynkersh. de Foro Legator. c. 3; Fennings v. Lord Grenville, 1 Taunt. 248; per Lord Stowell, Le Louis, 2 Dods. 241; Flad Oyen, 1 Robins, 140; Wheaton, pt. i. c. i. s. 7; and see 6 Beav. 45.
3 Bk. iv. ch. viii. s. 110, and another case of the ambassador of the King of Portugal, imprisoned for debt at the Hague in 1668, by order of a court of justice, of which Puffendorf was a member, is mentioned in the same place.
+5 How. Sta. Tri. 508; 2 Ward's Law of Nations, 548, and see a vast number of cases of arrests of ambassadors, mentioned 5 How. St. Tri. 479, 491, 492, 496, and the reason for ambassadorial privilege, 20 How. St. Tri. 1130, 1134.
variè a claris hujus sæculi ingeniis tractata,"" though he concludes on the whole for their irresponsibility, and for the exemption of their goods from attachment for debt, &c. Puffendorf only claims for them in very short and general terms the right of personal security. Even with respect to the right to personal freedom from arrest of a foreign sovereign coming into another country on a visit of pleasure, authorities and writers on this kind of law are not at all agreed. Vattel says he cannot, in such case, be treated as subject to the common law, for the weak reason (as it seems to us) that it is not to be presumed that he has consented to such subjection. In Calvin's case, the Court, which consisted of all the judges and Lord Chancellor Ellesmere, laid down the law thus, "If a king of a foreign nation come into England, by the leave of the king of this realm (as it ought to be), in this case he shall sue and be sued by the name of a king, &c."4 Lord Langdale, in a case of considerable note, observed, "that no case had been produced in which, upon the question properly raised, it has been held that a sovereign prince, resident within the dominions of another prince, is exempt from the jurisdiction of the country in which he is; there was no precedent, no law, no evidence of the common consent of nations, no usage which can be relied on. It must be admitted that all the reasons assigned for the immunity of ambassadors are not applicable to the case of sovereign princes: it has been truly observed that an ambassador, if exempt from the coercive power of the law, in the country where he is, may nevertheless be compelled to submit to justice by his prince in his own country, but that if you exonerate the prince himself, justice fails altogether." But he concludes, "I think on the whole it ought to be considered as a general rule, in accordance with the law of nations, that a sovereign prince resident in the dominions of another, is exempt from the jurisdiction of the courts there ;" and Wheaton lays down similar doctrine, citing authorities, however, which do not bear out his position. Ward says, a sovereign prince in a foreign country cannot be tried by the courts of that country, though he may, upon provocation,
'De Jure Belli et Pac. lib. ii. cap. xviii. s. 4-7, 9.
2 De Jure Naturæ et Gent. lib. ii. c. iii. s. 22.
3 Vattel, bk. iv. c. vii. s. 108; and he treats as an absurdity the notion that a foreign sovereign who enters another country without permission may be arrested.
47 Rep. 15 b, and see S. C. Moor. R. 803, showing this not to be Coke's comment, but the resolution of the court.
* Duke of Brunswick v. King of Hanover, 6 Beav. 40, 47, 48, 51.
Law of Nations, part i. cap. ii. s. 10.