laid in the name of the trustee, in whom the legal estate is outstanding or the plaintiff will fail in the action (u). And so in the case of a bond, or covenant, or other contract, the obligee, or covenantee, or other person with whom the engagement was originally made, is in general the only person, who can sue and recover upon the contract at law (x). Moreover in an action by a trustee, the defendant cannot set-off an equal or greater debt due to him from the cestui que trust, although at one time a contrary doctrine seems to have prevailed (y)*. Where the cestui que trust brings an action at law in the name of his trustee, the trustee may apply to a court of equity to compel him to give security for costs (z). The legal act of presentation to a benefice, must be exercised by the trustee, in whom the legal interest in an advowson is vested. But unless by the express terms of the trust, the trustee is empowered to nominate, as well as present, he will be bound to present the nominee of the beneficial owner (a), even though the latter be an infant only six months old (b). PART II. CHAPTER III. Trustee of advowson has the right of presentation. But cestui que trust the right of nomination. manor has the appointing the steward. And so the trustee of a manor has the legal right of appointing the Trustee of a steward; and if the cestui que trust by reason of infancy or other legal legal right of incapacity be incompetent to nominate, and the trustee has exercised his own discretion in making the appointment, the court will not set aside this appointment, in favour of a steward appointed by the testamentary guardian of the infant cestui que trust, unless there has been some improper conduct on the part of the trustee, or unless some advantage is to be derived from the change. However it seems that in such a case the trustee ought to attend to the wishes of the guardian or even of the infant cestuis que trust in making the appointment (c). A person claiming as heir at law of a bare trustee, who had been A dry trustee found by inquisition to have died without heirs, has not sufficient cannot traverse interest to enable him to traverse the inquisition (d). (u) Goodtitle v. Jones, 7 T. R. 47. (x) Wake v. Tinkler, 16 East, 36. (y) Tucker v. Tucker, 4 B. & Ad. 745; overruling Bottomley v. Brooke, and Rudge v. Birch, cited 1 T. R. 621, 2. (z) Annesley v. Simeon, 4 Mad. 390. (a) Barrett v. Glubb, 2 Bl. 1052; Arthington v. Coverley, 2 Eq. Abr. 518; Bo teler v. Allington, 3 Atk. 458; Earl of (b) Arthington v. Coverley, 2 Eq.Ab. 518. *If a trustee being the nominal plaintiff, fraudulently release an action at law without the consent of the party beneficially interested, the court will on motion set aside a plea of the release, and will order the release to be cancelled. Legh v. Legh, 1 B. & P. 447; Baberman v. Radenius, 7 T. R. 670, 6; Payne v. Rogers, Dougl. 407; Hickey v. Burt, 7 Taunt. 48; Anon. 1 Salk. 260; Manning v. Cox, 7 Moore, 617; Barker v. Richardson, 1 Y. & J. 362, Chitt. Contr. 605. an inquisition. PART II. CHAPTER III. Proof debt in bankruptcy by trustee. May sign bankrupt's certifi cate. Trustee's right of voting for members of parliament at common law. How far excluded by statute. In case of the bankruptcy of any person indebted to the trust estate, the trustee must prove the debt, for he is in general the party to receive the dividends. However the cestui que trust, if not under disability, should join in the proof (e). And so in the case of an assignment of a bond or other chose in action, although the court of bankruptcy recognizes the equitable title of the assignee, and admits him to prove for the amount, it requires that the original obligee or creditor, in whom the legal title is vested, should join with him in the proof (ƒ). However this subject will be further considered in a future Chapter (g). The right to sign a bankrupt's certificate follows the right to prove (h); and therefore a trustee may sign the certificate of a bankrupt debtor to the estate although one of several trustees cannot do So, unless authorized by his colleagues (i). It was said by Lord Northington in the case of Burgess v. Wheate, that the right of voting for coroners sheriffs and members of parliament was annexed by the common law to the possession of the land; and where there was a transmutation of the possession to a trustee, those rights could not be separated retained or suspended by the creator of the trust; but the legislature was obliged to interpose for that purpose (k). The first statute made with this view appears to be that of 8 Hen. VI., which after fixing a freehold of the value of 40s. at the least as the qualification of a voter for a member of parliament, concludes by providing that he should be able to expend 40s. per annum. But the statute 7 & 8 Will. III. c. 25, s. 7, expressly provides, that no trustee or mortgagee shall be entitled to vote in an election for a member of parliament by reason of the trust estate or mortgage, unless he be in actual possession or receipt of the rents and profits; but that the mortgagor or cestui que trust, in possession shall vote for the same estate. It is observable, that this enactment, by expressly doing away with the claim of trustees to vote when out of possession, seems by implication to give them the right of voting, when in possession of the estate or of the income arising from it (1). However the subsequent act of 10 Ann. c. 23, effectually obviated any doubt on this point. For the 2nd section of that statute enacts, that no person shall vote in respect or in right of any lands, &c. for which he shall not have received, or be entitled to have received, the rents and profits to his own use. (e) Ex parte Green, 2 D. & Ch. 116; ex parte Dubis, 1 Cox, 310; Archb. Bkrpt. Law, 155, 6. (f) Ex parte Dickenson, 2 D. & Ch. 520; Archbold, Bkrpt. Law, 303, 308, 156. (g) Vide post, [Bankruptcy of Trustees.] And the 18 Geo. II. c. 18, s. 5, (h) Re Lawrence, 1 M. & A. 453. (i) Ex parte Rigby, 2 Rose, 224; and S. C. 19 Ves. 463. (k) In Burgess v. Wheate, 1 Ed. 251. (1) Roger's Law of Elections, 126. CHAPTER III. also required as the qualification for a voter the possession of the pro- PART II. perty to his own use. And the words " to your own use," were inserted in the form of the oath to be taken by the freeholders. These enactments appear to have entirely excluded the claim of trustees to vote in respect of the trust estate in any case. But the late Reform Act (2 Will. IV. c. 45, s. 23) re-enacts the provisions of the 7th section of 7 & 8 Will. III. c. 25, declaring that trustees or mortgagees shall not be allowed to have any vote for the trust estate, or mortgage, unless they be in actual possession or receipt of the rents and profits; without adding the words " to their own use," which were introduced into the acts of 10 Ann. and 18 Geo. II.; and this, if it had not subsequently been explained and qualified, might probably have restored the implication, that trustees in actual possession were to be entitled to vote. However the 26th section of the same act provides, that notwithstanding anything thereinbefore contained, no person shall be entitled to vote unless duly registered, as thereinafter provided; and that no person shall be registered in respect of his estate or interest in any lands, &c., unless he shall have been in the actual possession thereof, or in the receipt of the rents and profits thereof, "for his own use" for the period specified in the act. Therefore the provisions of the 26th section appear completely to negative the right of a trustee to exercise the elective franchise, although he may be in actual possession of the trust estate, and notwithstanding any implication arising from the 23rd section. And this opinion seems to be supported not only by the sound principles of construction, as applicable to the act, but also by considerations of the general object and nature of the elective franchise. It is to be remarked however, that the construction contended for has not been universally adopted, and the point in question has repeatedly been agitated with conflicting results before the several revising barristers. has a beneficial The rule is of course different, where the trustee has a beneficial Where trustee interest in the trust estate to the amount in value fixed by the act as interest. the minimum of qualification according to the nature of the property: for in that case his right of voting would be unquestionable. In like manner the privilege of voting on the election of a coroner, which at common law was attached to the possession of the legal freehold (m), has been transferred by the statute 58 Geo. III. c. 95, s. 2, to the beneficial owner. And wherever a certain property qualification has been fixed by the legislature as necessary to the holding of an office, or the enjoyment of certain privileges; as in the case of members of parliament (n); or (m) Burgess v. Wheate, 1 Ed. 251. (n) 1 & 2 Vict. c. 48, s. 2, which expressly requires that the property giving the qualification, shall belong to the party "for Trustees not qualified to vote for coroner. Trustee not qualified by trust estate to be a member of parliament, &c. PART II. justices of the peace (o); or other similar offices; or (previously to the CHAPTER III. alteration of the game laws by the recent statute (p) ), with respect to the right of shooting game (q); in all these cases though a beneficial enjoyment of the property, on which the qualification is rested, may not in terms be expressly required, yet there can be no doubt, but that the equitable construction of the statute would exclude the claim of the trustee, and support that of the party beneficially entitled. A mere trustee a mortgage. A mere trustee, in whom the equity of redemption of a mortgaged cannot redeem estate had been vested for a particular purpose, which has been satisfied (as for the payment of debts, which had long since been discharged), has not a sufficient interest in the estate to entitle him to redeem the mortgage (r). Is a competent witness for cestui que trust. Secus, if he have any interest. Trustee cannot be receiver. Has an insurable inte A mere dry trustee, who is made a party defendant to a suit in respect of the legal estate vested in him, is in equity a competent witness for the cestui que trust (s). And a trustee differs in that respect from an executor or administrator, whose evidence cannot be received in a suit respecting the estate (t). Indeed at law the testimony of a mere trustee is inadmissible (u). But if there be any charge against the trustee, which he has an interest in rebutting, or any pecuniary liability (however small), which depends upon the result of the suit; the evidence of the trustee cannot be received even in equity, and for the same reason that of his wife will be equally inadmissible (x). As a general rule a trustee, whether he be sole trustee or jointly with others, cannot be the receiver of the trust estate with a salary: and a special case must be made to warrant such an appointment in opposition to the general rule (y). A trustee of a ship has an insurable interest in it, in respect of the legal property vested in him; although it seems that the title of the rest in a ship. cestui que trust will also be recognized at law, for the purpose of supporting an insurance effected by him (z). (0) 5 Geo. II. c. 18; 18 Geo. II. c. 20. (r) James v. Biou, 2 S. & St. 600. (8) Croft v. Pike, 3 P. Wms. 182; Mann v. Ward, 2 Atk. 229; Fotherby v. Pate, 3 Atk. 604. But it seems that a trustee plaintiff cannot be a witness, -v. Fitzgerald, 9 Mod. 330; Phillips v. Duke of Bucks, 1 Vern. 230. (t) Goss v. Tracy, 1 P. Wms. 290; Croft v. Pike, 3 P. Wms. 182; Fotherby v. Pate, 3 Atk. 604. (u) Mann v. Ward, 2 Atk. 229. (x) Frank v. Mainwaring, 2 Beav. 126; see Smith v. Duke of Chandos, Barn. 416. (y) Anon. 3 Ves. 515; v. Tolland, 8 Ves. 72; Sykes v. Hastings, 11 Ves. 363; Sutton v. Jones, 15 Ves. 584; but see Tait v. Jenkins, 1 N. C. C. 492; vide post, [Disabilities of Trustees.] (2) Ex parte Yallop, 15 Ves. 67. CHAPTER IV. OF THE DISPOSITION OF THEIR ESTATE BY TRUSTEES. I. Where the Disposition is made by Deed, or Act inter vivos. II. Where it is made by Will. III. Where by Trustees under Disability. SECT. 1.-Of the Disposition by Trustees of their Estate by Deed, or Act inter vivos. WHERE the legal interest in real or personal estate is vested in trustees, they are entitled at law to the exercise of all the powers of disposition incident to the legal ownership. In equity, their legal powers are regarded as under the control and subvervient to the interest of the cestui que trust, according to whose direction only it is in general their duty to convey or dispose of the trust estate. The present question is altogether distinct from a conveyance or disposition by a trustee made under a power conferred upon him by the instrument creating the trust. The consideration of this last question will be reserved more conveniently for a future chapter (a). Where the persons entitled to the whole beneficial interest are in esse and sui juris, it is one of the first duties of a trustee to execute such conveyances of the legal estate, as the cestuis que trusts shall direct (b). Therefore if a mere dry trustee without reason refuse to convey, when required by the person who is clearly entitled to the equitable interest, and a bill is filed to compel a conveyance, the decree will be made against the trustee with costs (c). And where the refusal proceeds from any improper motive-as, for the purpose of extorting a sum of money as the price of compliance-that will be an additional inducement for the court to visit the trustee with the costs of the suit, as a penalty for his misconduct (d). But if the re fusal be boná fide and by advice of counsel they will not However, although the title of the cestui que trust to require a couveyance from the trustee be quite clear in the opinion of the court, yet if the trustee in refusing act bonâ fide, and under the advice of his counsel, he will not be charged with the costs of the suit; but neither on the other hand will his costs be given him, but no order will be costs. made respecting the costs (e). (a) Post, [Powers of Sale.] (b) 1 Cruis. Dig. Tit. 12, Ch. 4, s. 6; Boteler v. Allington, 1 Bro. C. C. 73. (c) Willis v. Hiscox, 4 M. & Cr. 197; Jones v. Lewis, 1 Cox, 199; Lyse v. Kingdom, 1 Coll. 184; Penfold v. Bouch, ViceChancellor Wigram, 19th November, 1844, MS; vide post, [Costs.] (d) Watts v. Turner, 1 R. & M. 634; vide post, [Costs.] (e) Knight v. Martin, 1 R. & M. 70; Angier v. Stannard, 3 M. & K. 566; vide post, [Costs.] be fixed with |