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1. LONDON, MARCH 28, 1846.

entitled to payment, or that in no case, even in the

absence of express agreement, can a valid payment be A VERY important case for solicitors has lately been made to him. determined by the Master of the Rolls, (Stanes v. Par-| If, by express contract with the intended cestuis que ker, not yet reported). The defendant, Charles George trustent, being sui juris, before accepting the trust, and Parker, a solicitor, was a trustee of certain property without any fraud or undue pressure, a solicitor stipuunder the will of one William Clachar, and the plain- lates that he shall be paid for professional services, it tifs were the cestuis que trustent. The defendant had seems that such a contract would be good. In Moore v. done certain law business for the plaintiffs, in reference Frowd, (3 My. & C. 45), which turned upon whether to the sale of the trust estate, and had delivered to the language of a trust deed authorised the payment to them a bill of costs, and a draft of a release to himself a trustee, being a solicitor, of his professional charges, as trastee, duly accounting for the trust property, after Lord Cottenham said, “ The first question is, whether deducting the amount of his bill. The draft release the deed of trust disposes of this question, because the was kept by the plaintiffs for a fortnight, and then they parties may, by contract, make a rule for themselves, executed the deed. They afterwards filed their bill, in and agree that a trustee, being a solicitor, shall have effect to set aside the release, and to have their shares of some benefit beyond that which, without such conthe testator's estate paid to them, without allowing the tract, the law would have allowed; but, in such a case, defendant any payments for bis professional services in the agreement must be distinct, and in its terms explain the matter of the trust. The charges were not objected to the client the effect of the arrangement; and the to as such. The only objection was, that the defendant, more particularly, when the solicitor for the client, bebeing a trustee, had no right to charge for services done coming himself a trustee, has an interest, personal to as solicitor to the trust. Lord Langdale dismissed the himself, adverse to that of the client. It is not easy, bill, with costs, observing that, the plaintiffs having in such a case, to conceive how, consistently with the had the draft release before them from the 27th October established rules respecting contracts between solicitors to the 13th November, and having executed it, with and their clients, a solicitor could maintain such a confull means of information, he saw no grounds for not tract, made with his client, for his own benefit, the giving the release its full operation.

client having no other professional adviser, and in the The general and well-settled rule undoubtedly is, absence of all evidence, and of any probability, of the that, if a solicitor, being a trustee, thinks fit to trans- client (a woman, too) having been aware of her act professional business in relation to the trust, he is rights, or of the rule of law, or of the effect of the CON-> not entitled to any remuneration for his services*. The tract; but the necessity for following up these consider rale is, however, merely that he cannot, in the absence ations does not arise in this case, unless the deed conof express agreement, insist upon payment; not that it tains a distinct agreement for this purpose, is impossible for him to put himself in a position to be The qualifications, with which Lord Cottenham has

guarded even the doctrine, that, by agreement antece* New V. Jones, 9 Jarman's Prec., 3rd ed., 731; and Bain-dent to the acceptance of the trust, a solicitor may sti. i brigge v. Blair, 9. Jør. 765. . .

pulate that he shall be paid for professional services, VoL, X.

K

render it a contract, the enforcing of which is by no payment of his bill, or whether their knowledge of their means to be reckoned upon as free from difficulty; and right was presumed. We conceive, however, that, in it is obvious, that, in acting upon such contracts, much acting upon the authority of Stanes v. Parker, it will must be trusted by either party to the good faith of the always be a prudent as well as a proper course for the other.

trustee, specifically to apprise the cestuis que trustent of Whether a solicitor, who has accepted a trust with their legal right to refuse payment. out any stipulation antecedent to and as a condition of his acceptance, can by subsequent stipulation put himself in a position to be enabled to recover pay- THE LIABILITIES OF ALLOTTEES OF RAILment of his charges for professional business done in the

WAY SCRIP. matter of the trust, is a question of much more difficulty. We are not aware of any authority expressly It has been well observed, in a leading daily journal, deciding the point; and, upon principle, it should seem that the subject of the liability of allottees to an action that such a contract ought not to be made. Because, at law, for the amount of their deposits, is the most infirstly, in acting for the trust estate, the trustee is, tech- teresting, with the exception of the legality of the sale

of scrip, of all the numerous questions connected with nically speaking, acting for himself-employing him

railways. In considering a question of this sort, arising self. His contract, therefore, with the cestuis que

under circumstances, which, as a system, are absotrustent is technically a nullity. For, as he is the owner lutely the creation of the present day, it is material of the trust estate, he alone has authority to employ to look at the morality and justice of the case; because a solicitor in the trust business; and a contract with the law is not settled, and because it may well be antithe cestuis que trustent that he shall employ himself is cipated, that, in deciding what is the law, regard will

be had to those implied intentions of parties, to which a contract without a consideration. They have no

10 one of the keys is the obvious justice or injustice of parpower to prevent his employing whom he may think ticular implied intentions. fit; no authority to select any solicitor; and nothing, The only actual decision at law which bears matherefore, to contract about. Secondly, in regard to terially upon the question whether allottees of shares in the policy of the matter; the mischief which the policy

railway companies, resting only in project, are liable to of the law apprehends from a trustee being allowed, in pay their deposits towards defraying the preliminary

expenses, is Nockels v. Crosby, (3 B. & C. 822), dethe absence of contract, to charge for business done by

be by cided long before the great railway company mania. himself, would be equally to be apprehended if a trus- In that case, the doctrine laid down is well represented tee might contract with his cestuis que trustent to be in the language of Bayley, J.: “In all projects some paid for his services. Because, the relation of trustee expense must be incurred before many members join gives him an advantage in dealing with the cestui que the concern. Upon whom should that fall? Undoubttrust, which would make it necessary in every case to

edly, if the scheme proves abortive, it should fall upon

the original projectors, and not upon those who adrance inquire whether the acquiescence of the cestui que

their money upon the faith of its going on." And Littrust in the contract, was not the result of undue pres- tledale, J., said, “If persons set a scheme on foot and sure or influence.

assume to be directors or managers, all the expenses inIt is, however, quite another thing to say, that, if the

curred before the scheme is in actual operation must,

in the first instance, be borne by them. When it is in cestui que trust, not being liable to pay his trustee for

operation, the expenses and charges of management his professional services, thinks fit to do so, after due

should be borne by the concern, and then it may be fair time and opportunity for exercising his judgment, such that the preliminary expenses should be paid in the a payment shall be at all, or after any lapse of time, re- same way, for then the subscribers have the benefit of vocable. The policy of such a rule as that might be them. With respect to the supposed partnership, it is very questionable, as many cases may occur in which plain that there could be none, until the money was

laid out in the execution of the proposed scheme." the services of a particular person as trustee are desired,

If that case purported to have been decided upon specifically because it may be the interest or the choice | purely legal reasoning, or if it had been followed by of the cestui que trust, that his trustee and solicitor

others, it would be, perhaps, useless to criticise it; should be one and the same person. And, if the solicitor but, as the principal ground of its reasoning is the preis dependant for his payment upon the good faith of his sumption of a fact, from the existence of which an inclient, it is impossible to say that the disadvantage of

tention is inferred, and as it has not been followed by

any other cases, it may not be improper or useless, in a that position, is not fully a counter-balance for any ad

legal point of view, to consider whether there is, in gevantage or influence which his position as trustee may neral, any good ground for presuming the fact, from give him.

which the intention of allottees is to be inferred, to be Lord Langdale's judgment in Stanes v. Parker seems, such as it was presumed to be in Nockels v. Crosby. however, to settle the question to this extent: that, if Upon whom say the court, in that case, should the loss

fall? Undoubtedly, if the scheme proves abortive, it cestuis que trustent, having had before them for a rea

should fall upon the original projectors, and not upon sonable time their trustee's bill of costs, and the instru

those who advance their money upon the faith of its going ment by which he proposes that they should release him on. Now, this is precisely the assumption, the truth of from the trusts, think fit to pay that bill, and, by their which may, at this date at any rate, be questioned. own deliberate and solemn deed, to ratify the pay- Do persons asking for, and accepting, an allotment of ment, they shall not afterwards re-open the transaction

shares, do so upon the faith of the scheme certainly werely on the ground of the solicitor having been also

going on? Let us, for a moment, consider what is the

whole tenour of a railway company prospectus, and of trustee. We have not been informed whether it ap- the letter of application for shares. The prospectus, in peared in Stanes v. Parker that the defendant had dis- | its language, invariably and unmistakeably conveys the tinctly apprised the plaintiffs of their right to refuse idea of a mere project being on foot; and it would require a person to be most singularly unacquainted so employed. The express consideration, therefore, on with the nature of a railway project, in order to con- which the money was paid, failed. clude, that, because it is projected, it must necessarily The truth seems to be, with regard to subscribers attain maturity. The application for shares also, when for shares in such undertakings as projected railway in the usual form, shews, upon the face of it, that the companies, that they are, ex necessitate rei, and unless applicant knows he is proposing to take shares in some-they wilfully shut their eyes, perfectly well aware that thing that is still incomplete, and may or may not go they are advancing their money to forward an underon to maturity. Many prospectuses, in terms, state, taking which must, in every stage, be attended with that the deposits will be required for the preliminary some expense, and the ultimate completion of which is expenses; and, whether they do or do not, can any a contingency; and their object is, by the advance of man say, when he subscribes to a mere undertaking, such sums as they undertake to pay by way of deposit, which, he knows, cannot pass through any preliminary to entitle themselves to the profit which they hope may stage without expense, and which, he must know, may arise, with the perfect knowledge, that, in the event, it fail to attain maturity, quite independently of any vo- may turn out that no fruit will have arisen from the lition of the active promoters ; can any man in his preliminary expenditure. If this be what, as ordinary senses, subscribing under such circumstances, be heard men of business we know must be, the substantial unto say that he did not advance, or contract to advance, derstanding of the parties, then, does not a legal inferhis deposits, with a full knowledge, or with the fullence arise, that it is of the essence of the legal contract means of knowledge, that the payment of them could between a provisional committee and the allottees of not ensure the completion of the project? Can he shares, that the latter are intended to be (always supreally say, in the language of Nockels v. Crosby, that posing no fraud in the case) liable to contribute, by their he advanced his money upon the faith of the pro- deposits, to the preliminary expenses of the company, if ject going on? There is, clearly, we contend, no ground it shall have failed to reach maturity? The legal infor imputing to a subscriber any such belief; and, ference being no more than that intention which, in therefore, it cannot be presumed to be the intention of the absence of express contract, the law will impute to the parties to such & contract, that, if the undertaking the parties, upon the ground, that, looking at their refails to proceed, the active promoters alone shall bear lative situations, and the nature of the subject-matter all the preliminary expenses. Besides, what is meant of the contract, it would be contrary to justice and by the persons " who set a scheme afoot,” or the “ ori-common sense to impute to them any other intentions. ginal projectors” of a scheme? Are not all the persons The next material question for consideration on this who join in carrying it forward, between the periods subject is that of partnership; but this question is of its birth and of its attaining maturity, equally the principally material, with a view to ascertain whether original projectors? If the allottees are not, why are allottees of shares should be proceeded against at law or all the committee-men or directors to be so considered, in equity. Fox v. Clifton, (6 Bing. 776), so continually without reference to their having been, de facto, thé ! cited in this sort of inquiry, certainly decides that peroriginal proposers and projectors of the scheme, or hav- sons having contracted to take shares in a company ining joined it after its original concoction? When does tended to be constituted upon terms not yet completed, a projected company begin, and when does it cease to and to possess a given capital not yet subscribed, are be a mere project? If it has ceased to be a project not partners with the promoters; and Nockels v. Crosby before the final incorporation of the company, then involves a decision to the same effect. It will be ob Ceasat ratio, according to Nockels v. Crosby, as to the served, however, that in Fox v. Clifton the question non-liability of mere allottees; for their non-liability was not whether there was intended partnership inter is put, in that case, on the ground that the objects se, but whether there was implied partnership as to of the company are but a project, an inchoate scheme; third persons. And the court did not decide what was but, if it is merely a project, then, what is there in the relation between the promoters and the subscribers allottees to distinguish them from directors, so far as inter se. In Nockels v. Crosby, the promoters and subregards their character of projectors of the company? / scribers were certainly held not even partners inter se. It should also be observed, in reference to the appli- | But in that case there was no partnership business concation of Nockels v. Crosby to cases of projected railway templated, except the laying out of the money and dicompanies, that there were peculiar circumstances in viding the proceeds of it. And neither in Fox v. Clifthat case. The principal business of the intended ton, nor in Nockels v. Crosby, does the question appear partnership was the laying out of and dividing the to have been presented to the attention of the court, money subscribed, in a particular way, (on the prin- whether there may not be a present limited partnership ciples of a tontine). The express contract was, that as between the promoters of an intended commercial the money subscribed should be paid to trustees, and company and the subscribers, in the capital composed of by them invested; the interest to be divided between the deposits and the preliminary business for which the surviving shareholders at particular periods. It they are specifically applicable, independently of the appeared, that, of the subscriptions paid, no part was future general partnership, in the commercial business ever invested at all. “It was the duty," said Bayley, intended to constitute the ultimate business of the J.,“ of the defendants, within a reasonable time, to lay company. out in securities the money received. They never did But this question is, as we have observed already, 80, but kept it for eighteen months in their bankers' one affecting the jurisdiction under which relief is to be hands, and appear to have acted throughout as if they sought, rather than the right to relief. If it shall be thought the undertaking must fail.” This is a very finally determined that the provisional committee-men. different state of circumstances from that of a projected or directors of a projected railway company, are not railway company, where money is subscribed profess- partners in any sense, then the only difficulty remainedly not to be invested, but to be paid away for active ing in principle, (there may be many of form), as to proservices, essential to the due bringing of the scheme ceeding against the allottees at law for their deposits, is, before Parliament, the tribunal upon whose decision that which we have already discussed, viz. whether there alone, its attaining maturity, or being altogether quash-is or is not an implied intention in the contract formed by ed, depends. It was not necessary in Nockels v. Crosby the prospectus, the application, and the allotment, taken to put the case so high as to say that there was an im- together, that the allottees shall contribute their shares plied contract that the scheme should succeed; there of the preliminary expenses. If, on the other hand, it was an express contract that the money subscribed shall be determined that the promoters and allottees should be employed in a particular way, and it was not I are partners, then we conceive that the Court of Chancery would find means consistently with authority, or, We have stated all these analogous cases, at the risk if need be, by creating a precedent, to avoid the difficul- of being prolix, in the hope that they may tend to illus. ties interposed by the ordinary rules of pleading, in the trate the question in all its bearings. One of these way of the attainment of substantial justice.

cases concerns the devolution of an estate tail; and, beAllottees, in fine, appear to us to be hung upon the fore proceeding further, we would take the opportunity horns of a dilemma. They may choose whether they thereby suggested of remarking on the plan pursued by will not be partners, and be sued at law; or whether J. W. in his inquiry. We cannot congratulate him on they will be partners, and be sued in equity.

having followed the natural or logical order in first investigating the course of descent of an estate tail, and

adopting the results so arrived at as a sort of foundation Correspondence.

whereon to support his arguments as to the devolution

of estates in fee simple; for, as saith Lord Coke*, “from TO THE EDITOR OF THE JURIST.

this estate in fee simple, estates in tail and all other THE JURIST of February 28th contains some remarks | particular estates are derived; and therefore worthily « On Descent among Coparceners.” J. W., their au

our author (Littleton) beginneth his first book with thor, names two or three of his contemporaries, whose

• Tenant in fee simple.” Such a course would, we opinions are contrary to those advocated. He might

submit, have suggested more obvious and satisfactory have added Mr. Shelford to the number.

solutions of the difficulties and anomalies which J. W. The principle involved in the question is an import

has not failed to attack with Quixotic courage, and to ant one, yet not only do we look in vain for any deci

explain away with all the ingenuity of his favourite and sion on the point under 3 & 4 Will. 4, c. 106, but we

subtle, but somewhat fanciful, author, Perkins. are no less baffled in attempting to elicit an authorita

Could we once fully satisfy ourselves of the exact tive reply from the more ancient oracles of law. There

course in which, under any given circumstances, a fee may no doubt be cases in which the identical question

simple would have devolved, a fee tail need not, we is raised : we, however, have been unable to find any

think, cause much difficulty; and such difficulty would such; and may fairly presume that the cases ingeniously

resolve itself simply into this: how was the course of brought forward by J. W. are the most decisive the

| devolution altered by cutting down a fee simple by rebooks contain. When we come to examine them we

strictions confining the descent to lineal heirs of the think we shall be able to shew that they fail to establish

donee, and the reservation to the donor of a reversion his views.

consequent upon the possible default of such lineal de The new Statute of Inheritances enacts, “that in every

scendants of the donee? It is perfectly clear, that, excase descent shall be traced from the purchaser." (3&4

cept so far as the well-known words of the statute preWill.4.c. 106, s.2). Let us suppose that F. dies intestate vented, a fee tail devolved precisely as a fee simple leaving two daughters, D 1. and D 2.; and that D 1. like

would have done. wise dies intestate, leaving issue. The issue claim by de

Such we believe to be the clue to the true explanascent, and the descent must be traced from the purchaser,

tion of such an anomaly as tenancy by the curtezy or, in other words, the subject-matter of inheritance must

of an estate tail. Previously to the Statute of Westdevolve on the purchaser's heir. Now, D 2. and the issue

minster 2, the well-established rule of descent had been of D 1. together constitute the composite heir of F. We

“ Seisina facit stipitem;" and, from this reason, we maintain, therefore, that the subject-matter of descent,

do not doubt it was that seisin was one of the requinamely, the moiety held by D 1. till her death, and bý sites of tenancy by the curtesy. By that statute, seithat event set in motion, will devolve in equal moieties

sin, as regards estates in tail, became, in time, utterly upon D 2. and the issue of D 1.; in other words, that

inoperative for this purpose. It may, however, have D 2. will thus become possessed of three-fourths of F's taken time to establish such an interpretation of the estate, while D 1.'s issue will have only one quarter

statute, as that, on the death of a tenant in tail, the between them.

heir of such person must be passed over, and the heir of Under the old law, where seisin, not purchase, consti

the original donee sought for; and meanwhile it may tuted the root of descent, we should have had a strictly

have been ruled that the husband of such tenant, if the analogous case had F.left two daughters, D 1. and D 2.,

old requisitions had been complied with, should, nothis co-heirs, and had one of such coparceners died,

withstanding the statute, be tenant to the curtesy, and leaving issue, before she or her sister had obtained

this rule may have been too firmly established to admit scisin*.

of alteration before its anomalous nature was thoroughThere are two other cases in which the like difficulty

ly perceived. It is very unlikely that the framers seems to arise, as well under the old as the new law.

w of the Statute of Westminster 2 ever contemplated The first is that of F., tenant in tail general, leaving at

abolishing tenancy by the curtesy of estates tail. his death two or more daughters coparceners, one of

Add to which, that former usage, and in a feudal age whom dies, leaving issue.

many other causes, would have operated in favour of The second is that of F., a purchaser in fee simple,

the claims of the widower against his issue; and thus a devising to X. for life, and leaving at his death two or

blind acquiescence with the former practice, regardless more daughters, (to whom the reversion expectant on the

of the principle it had embodied, or a judicial timidity life tenancy descends), one of whom dies during the

and disinclination to follow the statute to its fair conlife tenancy, leaving issue.

sequences, and abolish tenancy by the curtesy of estates

tail, may have rendered such estates exceptional cases, • We are aware that it has been argued, that, under these in which such tenancy was still allowed, although the circumstances, the descent of the entire estate must be looked general rule that the issue should claim as heir of the upon as remaining open. We believe such a view to be con.

mother could not any longer be complied with: at all trary to law; for coparceners have, as between themselves, 1

events, nothing can be more explicit than the terms in several freeholds, which we maintain might severally be subjects of descent even before actual seisin ; and, in the analo

which the highest authorities lay down the rule, no

thing more certain than the legal existence of tenancy gous case of reversioners, we think it equally clear that the coparceners of the reversion would have several estates, which

| by the curtesy of estates tail, notwithstanding. We might severally become subjects of descent during the tenancy

hope our explanation of this anomaly will prove as safor life. We are not aware that it has ever been disputed that the shares of such reversioners might be effectually severed by * We have followed J. W. in giving him this title, which alienation. But it is needless to perplex the subject under was in his day a common ellipse for Lord Chief Justice; but discussion by pursuing these collateral questions.

I we doubt whether we are not guilty of a mignomer in so doing.

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