A

6. Cestui que trust has no remedy but by subpœna in Chancery; and by Chancery must be understood, not exclusively the court of the Lord Chancellor, but any court invested with an equitable jurisdiction, as opposed to common law courts (k) and spiritual courts (1), neither of which have any cognisance in matters of trust. common law court could never indeed, from the defective nature of its proceedings, have specifically enforced a trust; but at one time it affected to punish a trustee in damages for breach of the implied contract (m): an exercise of authority, however, clearly extra-provincial, and long since abandoned (n). Should a spiritual court attempt to meddle with a trust, the Court of King's Bench might be moved to issue a prohibition (0).

(k) Sturt v. Mellish, 2 Atk. 612, per Lord Hardwicke; Allen v. Imlett, F. L. Holt's Rep. 641; Holland's case, Styl. 41, per Rolle, J.

(1) Miller's case, 1 Freem. 283; King v. Jenkins, 3 Dowl. & Ryl. 41; Farrington v. Knightly, 1 P. W. 549, per Lord Parker; Edwards v. Graves, Hob. 265; Witter v. Witter, 3 P. W. 102, per Lord King.

(m) Megod's case, Godb. 64; Jevon v. Bush, 1 Vern. 344, per

Lord Jeffries; and see 1 Eq. Ca.
Ab. 384, D. (a).

(n) Barnardiston v. Soame, 7 State Trials, 443, Harg. ed. per Chief Justice North; Sturt v. Mellish, 2 Atk. 612, per Lord Hardwicke; Holland's case, Styl. 41, per Rolle, J.; Allen v. Imlett, F. L. Holt's Rep. 14.

(0) Petit v. Smith, 1 P. W. 7; Edwards v. Freeman, 2 P. W.441, per Sir J. Jekyll; Barker v. May, 4 M. & R. 386.

21

CHAPTER II.

THE DIFFERENT KINDS OF TRUSTS.

THE first and natural division of trusts is into simple and special.

The simple trust corresponds with the ancient use, and is where property is simply vested in one person upon trust for another, and the nature of the trust, not being qualified by the settlor, is left to the construction of law.

The special trust is where a trustee is interposed for the execution of some purpose particularly pointed out, and the trustee is not, as before, a mere passive depositary of the estate, but is bound to exert himself actively in the execution of the settlor's intention; as where the conveyance to trustees is upon trust to reconvey, or to sell for payment of debts.

Special trusts have again been subdivided into ministerial or instrumental and discretionary. The former, such as demand no further exercise of reason or understanding than every intelligent agent must necessarily employ; the latter, such as cannot be duly administered without the application of a certain degree of prudence and judgment.

A trust to convey an estate must be regarded as ministerial; for, provided the cestui que trust be put in possession of the estate, it is perfectly immaterial to him by whom the conveyance was executed.

Mr. Fearne was of opinion, that even a trust for sale should be considered as ministerial, "for the price, he said, is not arbitrary, or at the trustee's discretion, but to be the best that can be gotten for the estate, which is a fact to be ascertained independently of any discretion in the trustee (a)."

A fund in trustees upon trust to distribute among such charitable objects as the trustees shall think fit (b), or an advowson conveyed to them upon trust to elect and present a proper preacher (c), is clearly discretionary; for the selection of the most deserving objects in the first instance, and the choice of the best candidate in the second, is a matter calling for serious deliberation, and not to be determined upon without due regard to the merits of the parties, and all the particular circumstances of the case.

A trust such as to distribute at the discretion of the trustees is frequently designated in the books as a mixture of trust and power (d), that is, a trust of which the outline was sketched by the settlor, but of which the full measure was left to be filled up at the discretion of the trustees. The exercise of such a power is imperative, while the mode of its execution is matter of judgment and arbitrary.

A mixture of trust and power is not to be confounded with a common trust to which a power is annexed; for, in the latter case, the trust itself is complete, and the power being but an accessory, may be exercised or not as the trustee may deem it expedient; as where lands

(a) F. P. W. 313.

(b) Attorney-General v. Gleg, 1 Atk. 356; Hibbard v. Lambe, Amb. 309; Cole v. Wade, 16 Ves. 27; Gower v. Mainwaring, 2 Ves. 87.

(c) Attorney-General v. Scott, 1 Ves. 413; Potter v. Chapman, Amb. 98.

(d) Cole v. Wade, 16 Ves. 43; Gower v. Mainwaring, 2 Ves. 89.

are limited to trustees with an authority to grant leases, or stock is transferred into the names of trustees with a power of varying the securities: for in such cases the power forms no integral part of the trust, but is merely collateral and subsidiary, and the execution of it, in the absence of fraud, cannot be compelled by application to the Court.

24

CHAPTER III.

WHO MAY DECLARE A TRUST.

As the trust is in equity the boná fide and substantial ownership, the capacity of declaring a trust must be measured by the capacity of disposing of the interest at law.

A feme covert cannot declare a trust, except with the formalities required by the late Fines and Recoveries Act.

If an infant before that statute had levied a fine or suffered a recovery, he might also have declared the uses (a), and, unless the fine or recovery had been reversed by him during his nonage, he had been bound by the declaration (b): but now that deeds have been substituted for fines and recoveries, an infant cannot bind himself in any case; for the deed of an infant is not obligatory upon him, but may be avoided at any time. However, if the assurance of the infant be voidable only and not void, it seems the trust will hold good, until the legal estate be defeated.

As an infant may by the custom of Kent enfeoff for valuable consideration at the age of fifteen, a trust declared upon such a feoffment would, if we follow the analogy of uses, be supported in equity (c). And of course an infant of the age of fourteen may declare a trust of personal estate by will.

(a) Gilb. on Uses, 41, 245, 250.

(b) Id. 246. (c) Id. 250.