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traffic regulations, however, these two theories seem to have been considered inadequate, and still a third view was adopted. Where the plaintiff's illegal conduct consisted in driving an unregistered car, recovery for an injury due to the defendant's negligence was denied, although failure to register the car in no way contributed to the injury, on the ground that the automobile laws made the car an outlaw on the highway. This outlawry, it was subsequently established, embraces innocent passengers as well. And it seems to have been assumed that it would not only bar the owner of the car as plaintiff, but make him liable regardless of due care as defendant.6

Here were three distinct theories of the relation of illegal conduct to tort liability. A fourth was soon to emerge. In the case of Bourne v. Whitman' the illegal element was the circumstance that the operator's license of the defendant had expired. The court held that this did not make the car an outlaw; but it said that the lack of an operator's license would be evidence of the driver's lack of skill in managing the car. This dictum is not easy to understand. 8 The lack of a license might under some circumstances be evidence of the general incompetence of the driver, where that is in issue, although as a rule the logical relevancy would be faint. This would perhaps explain the decision in a subsequent case, which held erroneous the refusal by the trial court to instruct that the fact that a chauffeur hired by the plaintiff had no license was evidence of the plaintiff's negligence. But the rule as laid down in


severity than a defendant, saying, by Knowlton, J., that “in the sanctuary of the law, a violator of law imploring relief from the consequences of his own transgression, will receive no favor."

Dudley v. Northampton St. Ry. Co., 202 Mass. 443, 89 N. E. 25. The decision is made to turn on the language of $ 3 of the automobile laws (STAT. 1903, c. 473), providing that “except as otherwise provided herein no automobile or motor cycle shall

. . be operated upon any public highway ... unless registered as above provided.” It was said that the purpose of the statute was to protect travelers on the highway by giving them means of identifying an automobile which injures them, and that a car not so registered was a “forbidden and dangerous machine.” In other jurisdictions this view has not been adopted, registration being regarded as a revenue measure, not designed to affect civil liability. Atlantic Coast Line R. Co. o. Weir, 63 Fla. 69, 58 So. 641; Hemming v. New Haven, 82 Conn. 661, 74 Atl. 892; Lockridge v. Minneapolis & St. L. Ry. Co., 140 N. W. 834 (Ia.). See 27 Harv. L. Rev. 93.

Feeley v. Melrose, 205 Mass. 329, 91 N. E. 366. 6 The reasoning in Bourne v. Whitman, 209 Mass. 155, 95 N. E. 404, goes on this assumption. This would indicate that the doctrine is not so much that no duty of care is owed to a trespassing automobile, as that the operation of an unregistered car is legally so reprehensible that the illegality is equivalent to negligence. The language of the opinion in Dudley v. Northampton St. Ry. Co., supra, gives support to this view.

? Supra, n. 6.

& The court's position is indicated in the following extract from the opinion of Knowlton, C. J.: “If in any case the failure to have a license, looking to those conditions that ordinarily accompany the failure to have it, is a cause contributing directly to an injury, a violator of the law would be legally responsible to another person injured by the failure; or, if he is injured himself, would be precluded from recovery against another person who negligently contributed to the injury. But we are of opinion that his failure in that respect is only evidence of negligence in reference to his fitness to operate a car, and to his skill in the actual management of it, unless in the case of the plaintiff, it is shown to be a contributing cause to the injury sued for, in which case it is a bar to recovery.”

* Conroy v. Mather, 217 Mass. 91, 104 N. E. 487.

Bourne v. Whitman is that lack of the license is evidence of negligent management at the time of the accident. It seems unwise to violate the character rule to such an extent in favor of evidence which might tend strongly to prejudice the jury, and which in many cases can have almost no probative value.10

The ground of decision in the principal case does not fit easily into any one of these theories. If the outlaw doctrine, as extended to defendants, rests on some analogy to the liability of a landlord to third persons for a nuisance on land which existed at the time of the lease, 11 or to the absolute liability of the owner of a wild beast,12 it logically justifies holding the father liable for any harm done while the car is in his son's hands.13 The court considers him liable, however, only for his son's negligence. This would indicate that the liability depended on principles of respondeat superior, a view that seems hardly tenable. By no alchemy known to the courts can the mere fact of illegality make one in law an agent who is not an agent in fact.

Is Cestui QUE TRUST's RIGHT IN REM OR in PersonAM ?

“An use is a trust or confidence reposed in some other which is not issuing out of the land but a thing collateral annexed in privity to the estate of the land and to the person touching the land.” I So Lord Coke in 1628 defined the right of a cestui que trust, a definition which few lawyers of a century ago would have dared to dispute. But in recent times there has grown up a rapidly increasing expression of opinion both among judges and text-writers that the cestui has more than a bare “trust or confidence” in the trustee, that he has an interest in the res itself, real in nature and good against everyone save a bonâ fide purchaser of the legal title.2 In a recent case the Supreme Court of the United States seems to have added the weight of its authority to this modern conception. Brown v. Fletcher, 235 U. S. 589, 35 Sup. Ct. 154. The trustee and cestui que trust of a certain trust fund were citizens of New York. The cestui assigned his interest to the plaintiff, a citizen of Pennsylvania, who brought suit against the trustee in a federal District Court. Section 24 of the Judicial Code provides that the District Courts shall not have jurisdiction of “any suit to recover upon any promissory note or other chose in action in favor of any assignee, ... unless such suit might have been prosecuted in such court . . . if no assignment had been made.” The District Court dismissed the bill for want of jurisdiction. The Supreme Court reversed the decree apparently on the ground that the cestui's right under a trust was a property right and not a “chose in actionwithin § 24.3 Has the cestui's right, then, really become a right in rem? 4

10 As in Bourne v. Whitman, supra, where the driver's license had expired only the day before the accident and was renewed two days after.

il Dalay v. Savage, 145 Mass. 38, 12 N. E. 841.
12 Filburn v. People's Palace, etc. Co., 25 Q. B. D. 258.

13 In some jurisdictions the owner of an automobile who allows members of his family to take the car for a ride is held liable for their negligence, on some theory of agency growing out of the relationship. The cases are collected and criticised in 28 Harv. L. Rev. 91. In these jurisdictions the problem of the principal case would not arise. But in Massachusetts this view is not adopted. Whether or not the driver of the car was an agent of the defendant is considered a question of fact in each case. See Bourne v. Whitman, 209 Mass. 155, 173, 95 N. E. 404, 408.

1 Co. Lit. 272 b.

2 See Cave v. Cave, 15 Ch. D. 639, 647; Cory o. Eyre, i DeG. J. & S. 149, 167; Shropshire Railways, etc. Co. v. The Queen, L. R. 7 H. L. 496, 506, 512, 514. See SALMOND, JURISPRUDENCE, 3 ed., 230 et seq.; WILLOUGHBY, THE LEGAL ESTATE, ch. 1; Professor Pound in 26 Harv. L. REV. 462. Lord Mansfield's view of the nature of trusts in his dissenting opinion in Burgess v. Wheate, 1 Eden 177 (1759) is worthy of note (p. 226): “A use or trust heretofore was (while it was a use) understood to be merely an agreement by which the trustee and all claiming from him in privity were personally liable to the cestui que trust, 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; therefore is in no event to take a benefit; and the trust must be coextensive with the legal estate of the land, and where it is not declared it results by necessary implication; because the trustee is excluded except where the trust is barred in the case of a purchaser for valuable consideration without notice.”

At the outset the procedural maxim that “equity acts in personam. must not be confused with the substantive right itself. This manner of procedure is no doubt due to an historical accident. Courts of law were gravely defective in being unable to give specific reparation for a wrong by enforcing their judgment against the defendant personally. To correct this defect, equity seized on the procedure then in use in the Ecclesiastical Courts and acted on the conscience of the wrongdoer. But the Chancellor was early confined to this one way of enforcing his decrees by the sharp jealousy of the law courts aroused by the surprisingly rapid growth of equity practice. This procedural limitation, however, has no real bearing on the true nature of the right itself.

Historically, the earliest cases of equitable rights of this kind were the uses of real property. On a feoffment to uses the feoffee acquired a complete title. He was amenable to no process whatsoever, although of course morally bound to perform. But by the middle of the fifteenth century courts of equity came to recognize the cestui's right and to enforce it. Originally it was purely a personal obligation against the trustee and the trustee alone.? If the res was wrongfully conveyed to another with notice or for no consideration, no subpæna would issue against the


3 The case might be supported on the narrower ground that a chose in action within $ 24 means a chose in action based on contract. In the opinion, however, the court says: “The beneficiary here had an interest in and to the property that was more than a bare right and much more than a chose in action. . . . His estate in the property then in the possession of the trustee for his benefit, though defeasible was alienable to the same extent as though in his own possession and passed by deed. ... The instru

was not a chose in action payable to the assignee, but an evidence of the assignee's right, title and estate in and to the property.'

* Austin defines a right in rem as one which “avails against persons generally or universally,” and a right in personam as one which "avails against certain or determinate persons. AUSTIN, JURISPRUDENCE, 3 ed., 380. See also HOLLAND, JURISPRUDENCE, 11 ed., 144; SALMOND, JURISPRUDENCE, 3 ed., 205.'

5 It remained for express statutory enactment in the early part of the nineteenth century to grant to courts of equity limited powers in rem. See POMEROY, EQUITABLE REMEDIES, 88 13, 14, 15.

6 See Bacon, READING UPON THE STATUTE OF USES, pp. 20, 22, 23; 3 Rot. Parl. 511, No. 112.

1 FITZHERBERT'S ABRIDG., tit. SUBPENA, pl. 19. See Y. B. 14 Hen. VIII, fol. 4, pl. 5 (AMES, CASES ON TRUSTS, 2 ed., pp. 282, 283).


transferee; or if the trustee died or married, the title descended to his heir and the widow acquired her dower free from the trust obligation. But gradually the cestui's rights were enlarged until they began to assume characteristics closely resembling jura in rem. First it was held, although with some difficulty, that the heir must perform the trust.9 Later the cestui was allowed to enforce his right against the donee, the purchaser with notice, the creditor, and the devisee of the trustee; 10 until now it appears that the right of the cestui follows the res into whosesoever hands it may come, save in the case of a transfer of the legal title to a purchaser for value and without notice.11

On first thought this power of the trustee to cut off the cestui's interest by a sale to a bonâ fide purchaser seems fatal to any in rem theory. The very essence of a right in rem is that it shall “avail against persons generally or universally." 12 Here that is not the case as regards certain individuals; so it is argued that after all the right must be only in personam against the trustee.13 Yet rights may be rights in rem although as to some individuals they do not impose collective duties.14 The law is not unfamiliar with instances in which legal property rights are of no avail against certain people. The sale of a chattel in market overt will give a title good against the former legal owner; 15 the transferee of money, or of a bearer bank-note, promissory note, or bill of exchange owes no duty to the original owner; 16 a subsequent deed or mortgage recorded before a prior unrecorded deed or mortgage creates a right superior to that of the prior mortgagee; 17 the owner of goods entrusted to a factor and wrongfully pledged by him to another is remediless under the Factor's Acts; 18 a vendor in possession can pass an indefeasible title to a subsequent vendee although a vested property right is thereby cut off.19 Social welfare demands a security and stability in business transactions and acquisitions. Therefore the law has given the vendor in market overt, or the thief or finder of a promissory note, the power to pass a title which he himself does not possess. So in the case of trusts, in order to secure acquisitions of property equity concedes to the holder of the legal title, who stands before the world as owner, the power to clothe a purchaser for value without notice with a complete title.20 Where is the anomaly in saying that cestui's rights are in rem? No doubt the cestui has a personal right against the trustee that he perform the trust in accordance with its terms, but it is submitted that primarily he has a real right in the res itself.21

8 Brook's New Cases, MARCH'S TRANSLATION, 95; Y. B. 8 Ed. IV, fol. 6, pl. 1 (AMES, CASES ON Trusts, 2 ed., pp. 285, 345); Nash v. Preston, Cro. Car. 191. See Burgess v. Wheate, supra, 218.

9 FITZHERBERT'S ABRIDG., tit. SUBPENA, pl. 14, citing Y. B. 14 Ed. IV (1472) (AMES, CASES ON TRUSTS, 2 ed., n. 2, p. 345).

10 Against donee: Y. B. 14 Hen. VIII, fol. 4, pl. 5; against purchaser with notice: Y. B. 55 Ed. IV (Mich.) 7; against creditor: Ex parte Chion, 3 P. Wms. 187, n. (A); against devisee: Marlow v. Smith, 2 P. Wms. 201. See also LEWIN, Trusts, 12 ed., pp. 275, 276; MAITLAND, EQUITY, pp. 117, 118.

11 In the case of disseisin the courts first drew a distinction. It was said that the disseisor of the trustee was in by the post and not by the per, and so took free from any obligation. Earl of Worcester v. Finch, 4 Inst. 85. See Chudleigh's Case, i Rep. 120 d, 139 b; LEWIN, Trusts, 12 ed., 280. But that doctrine now seems to have been repudiated. In re Nesbitt and Potts' Contract, [1905] 1 Ch. 391; afi'd in Court of Appeals, (1906) 1 Ch. 386. See also MAITLAND, EQUITY, pp. 121, 170. 12 NOTE 4, supra.

13 See LANGDELL, A BRIEF SURVEY OF EQUITY JURISDICTION, 6; MAITLAND, EQUITY, 122 et seq.; Hart, “The Place of Trust in Jurisprudence,” 28 LAW QUART. REV. 290.

14 See SALMOND, JURISPRUDENCE, 3 ed., 208. 15 Case of Market Overt, 5 Co. R. 83 b.

16 Money: Higgs v. Holiday, Cro. Eliz. 746; bank-note: Miller v. Race, 1 Burr. 452; promissory note: Grant v. Vaughan, 3 Burr. 1516; bill of exchange: Peacock v. Rhodes, Doug. 632.

17 Odd-Fellows' Savings Bank v. Banton, 46 Cal. 603; O'Brien v. Fleckenstein, 180 N. Y. 350, 73 N. E. 30.

18 See WILLISTON, SALES, $ 319; MECHEM, SALES, $ 168. 19 See WILLISTON, SALES, $ 352 et seq.; MECHEM, SALES, $$ 167, 981. A number 22 Cave v. McKenzie, 46 L. J. Ch. 564; Cave v. Cave, supra; Cory v. Eyre, supra; Shropshire Rwys., etc. Co. v. The Queen, supra; Carritt 0. Real and Personal Advance Co., 42 Ch. D. 263; In re Vernon, Ewens & Co., 33 Ch. D. 402; Trustees of Union College v. Wheeler, 61 N. Y. 88; Downer v. South Royalton Bank, 39 Vt. 25.

This conception seems not only analytically sound but carries with it very salutary practical results. Under this view the many English and American cases 22 which prefer the cestui under a trust of an equitable interest (the legal estate being outstanding) to an assignee of the trustee for value and without notice are explainable, for the trustee then had nothing to assign; while if the cestui's right is merely in personam the assignee, having acquired the trustee's title for value without notice, should be protected.23 Moreover, to work out the cestui's right to the res on the in personam doctrine where he is allowed to follow the res into the hands of successive holders either with notice or for no consideration is complicated and involved, while if the cestui is considered the real owner in equity the result is simple enough. He has an actual estate which can only be cut off by a sale to a bonâ fide purchaser. Simplicity of thought is always conducive to sound reasoning, and therefore much to be preferred to an over-refined theory full of difficulties which, although not insurmountable, are very misleading and often open the door to possible error.24

of the above instances are statutory. But that fact seems immaterial, for a statutory rule is no less a part of the legal system than a rule of the common law.

20 Maitland distinguishes the case of a sale in market overt, etc., from that by a trustee, on the ground that in the former case the purchaser acquires an original title, while in the latter, a derivative title which equity will not take away. MAITLAND, EQUITY, 143. But the distinction seems formal only, for in either case it is a question of establishing an indefeasible title to secure the acquisition of property. The manner of creating that title seems immaterial.

2. Nor is there any inherent difficulty in this twofold conception. A contract in the same way creates a personal obligation and a right in rem, - a right against the obligor specifically, and a right against everyone generally that the relationship shall not be disturbed.

For a further exposition of the theory that the cestui's right is in rem rather than in personam, see HusTON, THE ENFORCEMENT OF DECREES IN EQUITY (Harvard Univ. Press, 1915, in press), and Professor Pound's Review of WILLOUGHBY, THE LEGAL ESTATE, in 26 Harv. L. REV. 462.

23 See Professor Ames’ article, “Purchase for Value without Notice,” in 1 Harv. L. Rev. I, at pp. 11 and 12.

24 A conspicuous example of the error into which some courts have fallen in attempting to follow out the in personam view to its logical conclusion is the case of Willson v. Louisville Trust Co., 102 Ky. 522, 44 S. W. 121. The trustee of an infant cestui, having wrongfully conveyed the res to another, allowed the Statute of Limitations to run against his right to recover the res. The court held that the cestui, having to work out his rights through the trustee, was barred because the trustee was barred, although

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