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was dead at the time of such payment or act, or had done some act to avoid the
power. By the same Act, sect. 30, and 23 & 24 Vict. c. 38, s. 9, any trustee, executor, or administrator may apply to a judge of the Court of Chancery at chambers, for his opinion or direction respecting the management or administration of the trust property or the assets (q); and by acting on such opinion or direction, shall be deemed, so far as regards his own responsibility, to have discharged his duty.
By the same Act of 22 & 23 Vict. c. 35, s. 31, every instrument creating a trust, either expressly or by implication, shall be deemed to contain a clause to the effect following, viz, that the trustees or trustee shall be chargeable only for what they shall respectively actually receive, notwithstanding their signature of any receipt for the sake of conformity, and shall be answerable only for their own acts and neglects, and not for those of each other, nor for any person with whom any trust fund may be deposited, nor for any deficiency of any securities, unless through their own wilful default; and also that it shall be lawful for them to reimburse themselves out of the trust premises, all expenses incurred in the execution of the trusts.
By 23 & 24 Vict. c. 145, ss. 1–7 (r), it is provided that in all cases where, by any instrument of settlement, it is expressly declared that trustees or other persons therein indicated shall have a power of sale over any hereditaments, it shall be lawful for such trustees or other persons, whether such hereditaments be vested in them or not, to exercise such power of sale, by selling such hereditaments, either together or in lots, and either by auction or private contract.
(9) See Ord. of Chancery, 20th March, 1860, as to the practice under this provision.
(r) The provisions in this Act (except as therein otherwise pro
vided) extend only to persons entitled or acting, under an instrument executed after the passing of the Act, viz. 28th August, 1860.
By the same Act, sect. 25, it is provided that trustees, with trust money in their hands, which it is their duty to invest at interest, may, in their discretion, invest the same in any of the parliamentary stocks or public funds, or in government securities (s); provided that no investment shall be made except in the £3 per cent. consols, where there is a person under no disability, entitled in possession to receive the income during life (or for a term determinable with life), or for any greater estate, without his consent in writing(t). And this Act also contains provisions (sect. 26) authorizing trustees to provide, out of the trust funds, for the maintenance or education of infant cestuis que trusts ;and (sect. 27) for the appointment of new trustees in the event of any trustee or trustees dying or becoming unfit to act, or being desirous to be discharged from acting ;-and also (sect. 29) making the receipts in writing of any trustees, for money payable to them as trustees, sufficient discharges, and effectually exonerating the party paying, without his being required to see to the application thereof(u).
By 24 & 25 Vict. c. 96, provisions are made against the fraudulent conversion of trust funds by the trustees; but this belongs to a later part of the volume (u).
(s) By a previous enactment (22 & 23 Vict. c. 35, s. 32,) a trustee, executor or administrator, not expressly forbidden by some instru. ment creating his trust, to invest the funds on real securities in any part of the United Kingdom, or in Bank or East Indian stock, may so invest them and shall not be held liable for a breach of trust, provided the investment in other respects be reasonable and proper.
(t) By 23 & 24 Kict. c. 38, ss. 10, 11, the Lord Chancellor was empowered (with the assistance of the other equity judges) to make orders from time to time as to the investment of cash under the control of the Court of Chancery; and it was enacted, that it should be lawful for
trustees, executors and administrators having power to invest their trust funds on government securities or upon parliamentary stocks, funds, or securities, to invest their trust funds in the same way. And, accordingly, an order issued 1st February, 1861, under which cash in the control of the court may be invested in, 1. The consols, £3 per cent. annuities. 2. Reduced £3 per cent. annuities, 3. New £3 per cent. annuities. 4. Bank stock. 5. East India stock. 6. Exchequer bills. 7. £2:10s. per cent. annuities. 8. On mortgage of freehold or copyhold estate in England or Wales.
(u) See also the previous enactment of 22 & 23 Vict. c. 35, s. 23.
Lastly, by 25 & 26 Vict.c. 108, s. 2, it is provided that every trustee and other person authorized to dispose of land by way of sale, exchange, partition, or enfranchisement, may, unless forbidden by the instrument creating the trust or power, so dispose thereof, with an exception or reservation of any minerals, or may dispose of the minerals separately from the residue of the land; but such disposition must be sanctioned by the Court of Chancery, to be obtained on petition in a summary way.
2ndly. The Court of Chancery has long exercised the jurisdiction of decreeing the specific performance of agreements, instead of giving redress for their non-performance by way of damages (v). And hence a fiction is established in equity, [that what ought to be done shall be considered as being actually done, and shall relate back to the time when it ought to have been done originally.) This mode of relief, indeed, is confined, generally speaking, to contracts of lands, it not being the ordinary practice of courts of equity to enforce the specific performance of agreements relating to personalty ; for the breach of those may in general be adequately redressed by an action at law (w). But contracts for the purchase of land or the like will be decreed to be specifically performed (x); and here the application of the doctrine above referred to, which considers as actually done that which ought to have been done, gives birth to nearly all the same consequences in equity, as would follow at law from a conveyance actually made to the vendee at the time specified in the contract. Thus, though the legal estate remains in the vendor till the conveyance is completely executed, the vendor is in equity considered as having been trustee for the vendee from the time specified in the contract; and the vendee, on the other hand, as a trustee for the vendor from the same period, so far as the purchase-money is concerned. With respect to the specific performance of an agreement it is to be remarked, that no decree or order for it, can be obtained from a court of law, though damages for the breach of it will be awarded there (y).
(u) Vide post, bk. vi. chap. v.
(v) This practice of the Court of Chancery, has been traced to the time of Edward the fourth. (1 Mad. Chan. p. 361.)
(w) As to specific performance of contracts, see Mortlock v. Buller, 10 Ves. jun. 315; 1 Mad. Chan. 402; Claring bould v. Curtis, 21 L. J. Ch.
(.) In addition to, or in substitution for, the decree for specific performance, the Court of Chancery may now by 21 & 22 Vict. c. 27, award damages to the party injured ; which, antecedently to that provision, such court had no power to award.
3rdly. With respect to an injunction ;-this may be obtained from a court of equity, in a variety of cases, to restrain the adverse party in the suit from committing any acts in violation of the plaintiff's rights (2): as, particularly, to restrain him from infringing a patent or copyright; or from committing waste or nuisance. It may also be obtained to restrain a party from proceeding with an action, or from enforcing a judgment he has recovered (a); and in some instances of an urgent nature, (if the case be supported by a proper affidavit,) may be obtained immediately upon the institution of the suit, and without any previous notice to the opposite party (c). In the course of an action, an injunction may now also be granted, as the reader will recollect, by a court of law; but it is by the effect of a very recent alteration of our system (d).
(y) A court of law, however, may now, in certain cases, and as incidental to an action, grant a mandamus to compel the defendant to perform a duty in which the plaintiff is interested, vide sup. p. 9.
(8) By 5 Vict. c. 5, ss. 4, 5, the Court of Chancery may, on motion or petition in a summary way, without bill filed, restrain the Bank of England or other public company from permitting a transfer of stock or shares, or from paying any dividend. And by The Consol. Gen. Ord. (Feb. 1860) xxvii., the mode of proceeding by writ of distringas on stock under that statute, is regulated.
(a) The practice with respect to injunctions to stay proceedings at law, (formerly called common in
junctions,) differed at one period, in some respects, from the practice with respect to injunctions to prevent waste or the like, (then called special injunctions). But by 15 & 16 Vict. c. 86, s. 58, it is now provided, that the practice as to the former, shall for the future be assi. milated to the practice as to the latter, so far as the nature of the case will permit. As to the present practice on injunctions, see Consol. Gen. Ord. (1860) xxv. It may be here observed, that by 21 & 22 Vict. c. 27, the Court of Chancery is, for the first time, enabled to award damages to the party injured, in addition to, or in substitution for, an injunction.
4thly. As to the perpetuation of testimony. The examination of witnesses never takes place at common law, except in reference to matters in respect of which some action or legal proceeding has been already commenced. But it is sometimes very material for the protection of existing rights, that the evidence relating to them should be taken and preserved, though they may not yet be the subject of any suit,—the position of the parties interested being such as not yet to afford any occasion or opportunity for litigation; for there may be reason, nevertheless, to expect a future legal contest of the right, and that at a period when the witnesses, now competent to give material evidence upon it, may have been removed by death. In such cases, therefore, a court of equity lends its aid by permitting any of the parties interested, to institute proceedings against the rest, with a view to the mere perpetuation of the testimony, and without reference to any other present relief. And this is effected by taking down, as in an ordinary cause, the examinations or depositions of the witnesses,which in the event of the right being tried at any future period, when the attendance of the witnesses can no longer be procured, may be received in evidence between the
(c) 1 Mad. Chan. 126. By 15 & court; and this without prejudice 16 Vict. c. 76, s. 226, it is provided, to the liability of the person, so viothat in case any action, suit, or pro- lating the injunction, to punishment ceeding, shall be commenced or pro- for the contempt. secuted in disobedience to any in- (d) 17 & 18 Vict. c. 125, ss. 79— junction, the court in which it is so 82 ; sup. vol. 111. p. 484. And see commenced or prosecuted, shall, on also 15 & 16 Vict. c. 83, s. 42, in production of the writ of injunction, reference to infringement of a pastay all further proceedings in such tent (sup. vol. 11. p. 32).