66

receipt of the rents and profits to his own use for one year before the election" was by some oversight omitted. This defect was afterwards remedied by the 18 G. 2, c. 18. s. 1, which incorporated into the oath the declaration that the elector had been " in the actual possession or receipt of the rents and profits to his own use for two calendar months" before the election. It must be observed that the words " actual possession, or receipt of the rents and profits," correspond to the expression in the statute of Anne, "who shall not have received the rents and profits to his own use," and therefore the words "to his own use" in the statute of George must be taken to apply to "actual possession" as well as to "the receipt of the rents and profits." We now come to the Reform Act (i), which first, by the 23rd section, re-enacts the provision of the statute of William, that no trustee or mortgagee shall vote "unless he be in actual possession or receipt of the rents and profits," and then, as the oath prescribed by the statute of George was for the time to come abolished, restores the effect of it (with a slight variation) by the directions relating to the registration of voters contained in the 26th section. It then declares, that," notwithstanding any thing thereinbefore contained, no person shall be registered in any year in respect of his estate or interest in any lands or tenements as a freeholder, copyholder, &c. unless he shall have been in the actual possession thereof, or in receipt of the rents and profits thereof for his own use for six calendar months previous to the last day of July in such year." So that the Reform Act seems to have left the law in respect of trustees precisely on the same footing on which it stood be

(i) 2 Gul. 4, c. 45.

fore the act was passed.

The inference is that a

mere trustee is now in all cases excluded from the franchise. It has been said that the 23rd and 26th sections are contradictory, but "trustees" in the former section may reasonably be taken to mean, not a bare trustee, but one who has also a beneficial interest in the estate; as, where a conveyance is made by way of mortgage to A. and his heirs upon trust to pay himself in the first instance, and, subject thereto, upon trust for the grantor. But, supposing the two clauses to be absolutely conflicting, the latter must undoubtedly prevail over the former: an Act of Parliament is not like a deed, which, being irrevocable in its nature, binds the party as it proceeds; but resembles rather a will, which, being ambulatory until the testator's death, may be revoked by any subsequent declaration of intention, whether contained in the same or in any other instrument. An Act of Parliament is no estoppel upon the legislature, but may be varied from time to time by the promulgation of any subsequent statute. The 26th section declares, that, "notwithstanding any thing thereinbefore contained," the voter shall be in the actual possession or receipt of the rents and profits" to his own use," and the 23rd section must either be reconciled with that enactment or be rejected as repugnant. By the Registration Amendment Bill, introduced the last session in the House of Commons but thrown out in the House of Lords, it was proposed that trustees of charities should be entitled to vote; it is probable that in the course of the next session either this or some similar provision may be passed into law.

Again, the trustee of a copyhold must pay a fine on his admission (k), and on his decease a heriot becomes

(k) Earl of Bath v. Abney, 1 Dick. 260; S. C. 1 Bur. 206.

due to the lord (7). But, where two or more trustees have been admitted jointly, on the decease of one neither fine nor heriot is due; not a fine for admission, because, joint tenants being seised per my et per tout, the estate has vested in the survivors by the original grant, and not a heriot, because, however many in number the trustees may be, they all form but one tenant to the lord, and therefore no heriot is demandable until the death of the longest liver (m). Where a number of trustees are admitted as the joint owners of the trust estate, the fine is to be assessed upon the following principle: for the first life is to be allowed the fine usually paid on the admission of a single tenant, on the second life one half the sum taken for the first, and on the third one half the sum taken for the second, &c.; the result of which will be, that, however great the number of the trustees admitted, the amount of the whole fine will never be double of that paid upon the first life (n). Though the manorial burdens fall upon the trustee personally at law, he is of course entitled in equity to reimburse himself the expenditure out of the profits of the estate (o).

If a trustee trade jure alieno on the foot of the trust, he makes himself amenable to the operation of the bankrupt law (p), and on his decease his lands will be liable under Sir Samuel Romilly's Act (q) to the discharge of simple contract debts (r).

(1) Trinity College v. Browne, 1 Vern. 441; see Car v. Ellison, 3 Atk. 77.

(m) See 2 Watk. Cop. p. 147. (n) Wilson v. Hoare, 2 B. & Ad. 360, per Lord Tenterden.

(0) Rivet's case, Moore, 890. (p) Wightman v. Townroe, 1 M. & S. 412; ex parte Garland,

10 Ves. 119, per Lord Eldon; Hankey v. Hammond, cited in marginal note to 1 Cooke's Bank. Law, 84, 3rd ed.

(g) 47 G. 3, c. 74. Repealed, and re-enacted by 11 G. 4 & 1 Will. 4, c. 47.

(r) Longuet v. Hockley, Feb. 16, 1836, Exch. Moss Levy,

II. Of the legal estate in the trustee with reference to the construction of particular statutes.

By the 6 G. 4, c. 16, ss. 63 & 64, and by 1 & 2 W. 4, c. 56, ss. 25 & 26, it is enacted, that "all the present and future personal estate of the bankrupt, wheresoever the same may be found or known, and all property which he may purchase, or which may revert, descend, be devised or bequeathed, or come to him before he shall have obtained his certificate, and all lands, tenements and hereditaments, except copyhold or customaryhold, to which the bankrupt is entitled, and all interest to which such bankrupt is entitled in any of such lands, tenements or hereditaments, and of which he might have disposed, and all such lands, tenements and hereditaments as he shall purchase, or shall descend, be devised, revert to, or come to such bankrupt before he shall have obtained his certificate," shall vest in the assignees of such bankrupt.

The operation of the Bankruptcy Acts was thus commented upon by Lord Chief Justice Willes :-"The assignees," he said, "under a commission of bankruptcy are not to be considered as general assignees of all the real and personal estate of which the bankrupt was seised and possessed, as heirs and executors are of the estate of their

a trader in partnership with his brother Lewis Levy, and his cousin Walter Levy, devised and bequeathed all his real and personal estate to Hockley, upon trust to convert the same into money, and to stand possessed of the proceeds upon certain trusts in the will mentioned. Hockley, in breach of his duty, continued the business with

the two co-partners in the name of the testator, and died indebted to the trust estate in the sum of 1,100%., and without leaving sufficient personal assets. Baron Alderson held clearly, that Hockley was a trader within the meaning of the statute, and his lands were liable for the money due to the trust.

ancestors and testators, for nothing vests in the assignees even at law but such real and personal estate of the bankrupt in which he had the equitable as well as legal interest, and which is to be applied to the payment of the bankrupt's debts (s)."

It is clear, therefore, that, in the case of a bare trust, the property, whether real (t) or personal (u), will not vest by the bankruptcy in the assignees, even at law. And the proposition applies not only to the case of express trustees, but also of trustees virtute officii, as executors, administrators (x), factors (y), &c.

And, where the trust estate or fund has been converted into property of a different character, the new acquisition will equally be protected against the effects of the bankruptcy; for the product or substitute of the original thing must follow the nature of the thing from which it proceeded (*). Thus, if goods consigned to a factor be sold by him and reduced into money, so long as the money can be identified, as, where it has been kept in bags, the employer, and not the creditors, will

(s) Scott v. Surman, Willes, 402. (t) Ex parte Gennys, 1 Mont. & Mac. 258.

(u) See Winch v. Keeley, 1 T. R. 619; Carpenter v. Marnell, 3 B. & P. 40; Gladstone v. Had

wen, 1 M. & S. 517.

(x) Howard v. Jemmet, 3 Bur. 1369, per Lord Mansfield; ex parte Butler, 1 Atk. 213, per Lord Hardwicke; Viner v. Cadell, 3 Espin. 88; Farr v. Newman, 4 T. R. 629, per Grose, J.; see ex parte Ellis, 1 Atk. 101.

(y) Godfrey v. Furzo, 3 P. W.

186, per Lord King; Tooke v. Hollingworth, 5 T. R. 226, per Lord Kenyon; L'Apostre v. Le Plaistrier, cited Copeman v. Gillant, 1 P. W. 318; Delauney v. Barker, 2 Star. 539; Boddy v. Esdaile, 1 Carr. 62; see ex parte Dumas, 2 Ves. 582; S. C. 1 Atk. 232; Paul v. Birch, 2 Atk. 623; Ryall v. Rolle, 1 Atk. 172; ex parte Chion, note (A) to Godfrey v. Furzo, 3 P. W. 187.

(z) See Taylor v. Plumer, 3 M. & S. 575; Scott v. Surman, Willes, 404.