But during the reigns of Charles the First and Second, and particularly during the Chancellorship of Lord Nottingham, who, from the sound and comprehensive principles upon which he administered trusts, has been called the father of equity (r), the courts gradually threw off the fetters of uses, and, disregarding the operation of mere technical rules, proceeded to establish trusts upon the broad foundation of conformity to the course of common law. "In my opinion," said Lord Mansfield," trusts were not on a true foundation till Lord Nottingham held the great seal; but by steadily pursuing from plain principles trusts in all their consequences, and by some assistance from the legislature, a noble, rational, and uniform system of law has since been raised; so that trusts are now made to answer the exigencies of families and all purposes, without producing one inconvenience, fraud, or private mischief, which the statute of Hen. 8 meant to avoid (s).”

To point out the changes that were successively introduced, it was held with reference to the trustee, that actual confidence in the person was no longer to be looked upon as essential. A body corporate therefore was not exempted from the writ of subpoena on the ground of incapacity (t), and even the king, notwithstanding his high prerogative, was invested with the character of a Royal Trustee (x), though the precise mode of enforcing the trust against him was not exactly ascertained to use the language of Lord Northington, "the arms of equity were very short against the Preroga

(r) Philips v. Brydges, 3 Ves. 127; Kemp v. Kemp, 5 Ves. 858. (s) Burgess v. Wheate, 1 Ed.

223.

(t) See Green v. Rutherworth, 1

Ves. 468; Attorney General v.
Whorwood, 1 Ves. 536.

(x) See Penn v. Lord Baltimore, 1 Ves. 453; Earl of Kildare v. Eustace, 1 Vern. 439.

tive" (y). The subtle distinctions which had formerly attended the notion of privity of estate were also gradually discarded. Thus it was laid down by Lord Hale, that tenant in dower should be bound by a trust as claiming in the per by the assignment of the heir (2); and so it was afterwards determined by Lord Nottingham (a): and when an old case to the contrary was cited before Lord Jeffries, it was unanimously declared both by the bench and the bar to be against equity and the constant practice of the court (b). A tenant by statute merchant was held to be bound upon the same principle, for he took, it was said, by the act of the party, and the remedy which the law gave thereupon (c). But as to tenant by the curtesy, Lord Hale gave his opinion, that one in the post should not be liable to a trust without express mention made by the party who created it; and therefore tenant by the curtesy should not be bound (d): but his Lordship's authority on this point was subsequently overruled, and curtesy as well as dower was made conformable to the general principle.

With respect to the cestui que trust, or the person entitled to the subpoena, the narrow doctrine contained under the technical expression of privity began equally to be waived, or rather to be applied with considerable latitude of construction. "The equitable interest," said Justice Rolle," is not a thing in action, but an inheritance or chattel, as the case may fall out" (e); and when once the trust, instead of passing as a chose in action, came to

(y) Burgess v. Wheate, 1 Ed.

256.

(z) Powlett v. Attorney General, Hard. 469.

(a) Noel v. Jevon, Freem. 43.
(b) MS. note by an old hand

in the copy of Croke's Reports in Lincoln's Inn Library. Cro. Car.191. (c) Powlett v. Attorney General, Hard. 467, per Lord Hale.

(d) S. C. Ib. 469.

(e) King v. Holland, Styl. 21.

be treated on the footing of an actual estate, it soon drew to it all the rights and incidents that accompanied property at law: thus, the equity of the cestui que trust, though a bare contingency or possibility (f), was admitted to be assignable (g); and Witham's case, that a husband who survived his wife could not, for want of privity, claim her equitable chattel, was declared by the court to be no longer an authority (h). So a judgment creditor, it was held by Lord Nottingham, might prosecute an equitable fieri facias (i); and though Lord Keeper Bridgman refused to allow an equitable elegit (k), it is probable, had the question arisen before Lord Nottingham, his Lordship would in this, as in other cases, have acted on a more liberal principle; at all events, the creditor's right to relief in this case has since been established by the current of modern authority (7). Again, a trust was decided by Lord Nottingham to be assets in the hands of the heir (m); and though Lord Guildford afterwards overruled this decision (n), yet Lord Nottingham's view of the subject appears to have been eventually successful (o). Curtesy also was permitted of a trust estate, though the widow of cestui que trust could never establish her title to dower (p). "Not," said Lord Mansfield, "on reason or principle, but because wrong determinations had misled in too many instances to be then set right (q)"; or rather,

as Lord Redesdale thought, because the admission of dower would have occasioned great inconvenience to purchasers a mischief that in the case of curtesy was not equally to be apprehended (r).

Lord Mansfield was for carrying the analogy of trusts to legal estates beyond the legitimate boundary. "A use or trust," he said, "was heretofore understood to be merely as an agreement, by which the trustee and all claiming from him in privity were personally liable to the cestui que use, and all claiming under him in like privity; nobody in the post was entitled under or bound by the agreement: but now the trust in this court is the same as the land, and the trustee is considered merely as an instrument of conveyance (s)." And in the application of this principle his Lordship argued, that the estate of the cestui que trust ought to be subject to escheat, and that, on failure of heirs of the trustee, the lord who took by escheat should be bound by the trust. But to these propositions the courts of equity have never assented. The limit to which the analogy of trusts to legal estates ought properly to be allowed, was well enunciated by Lord Northington in the case of Burgess v. Wheate. "It is true," he said, "this Court has considered trusts as between the trustee, cestui que trust, and those claiming under them, as imitating the possession; but it would be a bold stride, and in my opinion a dangerous conclusion, to say therefore this Court has considered the creation and instrument of trust as a mere nullity, and the estate in all respects the same as if it still continued in the seisin of the creator of the trust, or the person entitled to it for my own part I know no instance where this Court has permitted the creation of the trust to affect the

(r) See infra.

(s) Burgess v. Wheate, 1 Ed. 226.

right of a third person (t);". that is, to illustrate the principle by particular cases, a tenant by the curtesy, or in dower, or by elegit, as claiming through the cestui que trust or trustee, though in the post, is bound by and may take advantage of the trust; but the lord, who comes in by escheat, is not in any sense a privy to the trust, and therefore can neither reap a benefit from it on failure of heirs of the cestui que trust, nor is bound by the equity on failure of heirs of the trustee.

To the extent therefore pointed out by Lord Northington, and no farther, the analogy of trusts to legal estates is at the present day to be applied.

(t) Burgess v. Wheate, 1 Ed. 250, 251.