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No. 481-VOL. X.

MARCH 28, 1846. Price 1s., with Supplement, 1s. 9d.

** The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and

decided in the several Courts of Law and Equity:

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Temple, Barrister at Law.

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A VERY important case for solicitors has lately been determined by the Master of the Rolls, (Stanes v. Parker, not yet reported). The defendant, Charles George Parker, a solicitor, was a trustee of certain property under the will of one William Clachar, and the plaintiffs were the cestuis que trustent. The defendant had done certain law business for the plaintiffs, in reference to the sale of the trust estate, and had delivered to them a bill of costs, and a draft of a release to himself as trustee, duly accounting for the trust property, after deducting the amount of his bill. The draft release was kept by the plaintiffs for a fortnight, and then they executed the deed. They afterwards filed their bill, in effect to set aside the release, and to have their shares of the testator's estate paid to them, without allowing the defendant any payments for his professional services in the matter of the trust. The charges were not objected to as such. The only objection was, that the defendant, being a trustee, had no right to charge for services done as solicitor to the trust. Lord Langdale dismissed the bill, with costs, observing that, the plaintiffs having had the draft release before them from the 27th October to the 13th November, and having executed it, with full means of information, he saw no grounds for not giving the release its full operation.

The general and well-settled rule undoubtedly is, that, if a solicitor, being a trustee, thinks fit to transact professional business in relation to the trust, he is not entitled to any remuneration for his services*. The rule is, however, merely that he cannot, in the absence of express agreement, insist upon payment; not that it is impossible for him to put himself in a position to be

Court

{

Inn, Barrister at Law.

Court of Queen's Bench {G. J. P.SMITH, Esq. of the Inner

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Temple; and

A. V. KIRWAN, Esq. of Gray's Inn, Barrister at Law.

D. POWER, Esq. of Lincoln's Inn, Barrister at Law.

W. M. BEST, Esq. of Gray's Inn, Court of Exchequer....Barrister at Law.

Ecclesiastical and Admi- f J. P. DEANE, D.C.L. of Doctors'

ralty Courts

Court of Review

........

......

Commons. JW.W.COOPER, Esq. of the Inner Temple, Barrister at Law.

entitled to payment, or that in no case, even in the absence of express agreement, can a valid payment be made to him.

If, by express contract with the intended cestuis que trustent, being sui juris, before accepting the trust, and without any fraud or undue pressure, a solicitor stipulates that he shall be paid for professional services, it seems that such a contract would be good. In Moore v. Frowd, (3 My. & C. 45), which turned upon whether the language of a trust deed authorised the payment to a trustee, being a solicitor, of his professional charges, Lord Cottenham said, "The first question is, whether the deed of trust disposes of this question, because the parties may, by contract, make a rule for themselves, and agree that a trustee, being a solicitor, shall have some benefit beyond that which, without such contract, the law would have allowed; but, in such a case, the agreement must be distinct, and in its terms explain to the client the effect of the arrangement; and the more particularly, when the solicitor for the client, becoming himself a trustee, has an interest, personal to himself, adverse to that of the client. It is not easy, in such a case, to conceive how, consistently with the established rules respecting contracts between solicitors and their clients, a solicitor could maintain such a contract, made with his client, for his own benefit, the client having no other professional adviser, and in the absence of all evidence, and of any probability, of the client (a woman, too) having been aware of her rights, or of the rule of law, or of the effect of the contract; but the necessity for following up these considerations does not arise in this case, unless the deed contains a distinct agreement for this purpose,"

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 stibrigge v. Blair, 9 Jur. 765.

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pulate that he shall be paid for professional services,

render it a contract, the enforcing of which is by no means to be reckoned upon as free from difficulty; and it is obvious, that, in acting upon such contracts, much must be trusted by either party to the good faith of the other.

payment of his bill, or whether their knowledge of their right was presumed. We conceive, however, that, in acting upon the authority of Stanes v. Parker, it will always be a prudent as well as a proper course for the trustee, specifically to apprise the cestuis que trustent of their legal right to refuse payment.

WAY SCRIP.

It has been well observed, in a leading daily journal, that the subject of the liability of allottees to an action at law, for the amount of their deposits, is the most interesting, with the exception of the legality of the sale of scrip, of all the numerous questions connected with under circumstances, which, as a system, are absorailways. In considering a question of this sort, arising lutely the creation of the present day, it is material to look at the morality and justice of the case; because the law is not settled, and because it may well be anticipated, that, in deciding what is the law, regard will be had to those implied intentions of parties, to which one of the keys is the obvious justice or injustice of particular implied intentions.

Whether a solicitor, who has accepted a trust without 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 matter of the trust, is a question of much more difficulty. We are not aware of any authority expressly deciding the point; and, upon principle, it should seem that such a contract ought not to be made. Because, firstly, in acting for the trust estate, the trustee is, technically speaking, acting for himself-employing himself. His contract, therefore, with the cestuis que trustent is technically a nullity. For, as he is the owner of the trust estate, he alone has authority to employ a solicitor in the trust business; and a contract with the cestuis que trustent that he shall employ himself is a contract without a consideration. They have no power to prevent his employing whom he may think fit; no authority to select any solicitor; and nothing, therefore, to contract about. Secondly, in regard to the policy of the matter; the mischief which the policy of the law apprehends from a trustee being allowed, in the absence of contract, to charge for business done by himself, would be equally to be apprehended if a trustee might contract with his cestuis que trustent to be paid for his services. Because, the relation of trustee gives him an advantage in dealing with the cestui que trust, which would make it necessary in every case to inquire whether the acquiescence of the cestui que trust in the contract, was not the result of undue pressure or influence.

It is, however, quite another thing to say, that, if the cestui que trust, not being liable to pay his trustee for his professional services, thinks fit to do so, after due time and opportunity for exercising his judgment, such a payment shall be at all, or after any lapse of time, revocable. The policy of such a rule as that might be very questionable, as many cases may occur in which the services of a particular person as trustee are desired, specifically because it may be the interest or the choice of the cestui que trust, that his trustee and solicitor should be one and the same person. And, if the solicitor is dependant for his payment upon the good faith of his client, it is impossible to say that the disadvantage of that position, is not fully a counter-balance for any advantage or influence which his position as trustee may give him.

Lord Langdale's judgment in Stanes v. Parker seems, however, to settle the question to this extent: that, if cestuis que trustent, having had before them for a reasonable time their trustee's bill of costs, and the instrument by which he proposes that they should release him from the trusts, think fit to pay that bill, and, by their own deliberate and solemn deed, to ratify the payment, they shall not afterwards re-open the transaction merely on the ground of the solicitor having been also trustee. We have not been informed whether it appeared in Stanes v. Parker that the defendant had distinctly apprised the plaintiffs of their right to refuse

The only actual decision at law which bears materially upon the question whether allottees of shares in railway companies, resting only in project, are liable to pay their deposits towards defraying the preliminary cided long before the great railway company mania. expenses, is Nockels v. Crosby, (3 B. & C. 822), deIn that case, the doctrine laid down is well represented in the language of Bayley, J.: "In all projects some expense must be incurred before many members join the concern. Upon whom should that fall? Undoubtedly, if the scheme proves abortive, it should fall upon the original projectors, and not upon those who advance their money upon the faith of its going on." And Littledale, J., said, "If persons set a scheme on foot and assume to be directors or managers, all the expenses incurred before the scheme is in actual operation must, in the first instance, be borne by them. When it is in should be borne by the concern, and then it may be fair operation, the expenses and charges of management that the preliminary expenses should be paid in the same way, for then the subscribers have the benefit of them. With respect to the supposed partnership, it is plain that there could be none, until the money was laid out in the execution of the proposed scheme." If that case purported to have been decided upon purely legal reasoning, or if it had been followed by others, it would be, perhaps, useless to criticise it; but, as the principal ground of its reasoning is the presumption of a fact, from the existence of which an intention is inferred, and as it has not been followed by other cases, it legal point of view, to consider whether there is, in gemay not be improper or useless, in a neral, any good ground for presuming the fact, from which the intention of allottees is to be inferred, to be such as it was presumed to be in Nockels v. Crosby. Upon whom say the court, in that case, should the loss should fall upon the original projectors, and not upon fall? Undoubtedly, if the scheme proves abortive, it those who advance their money upon the faith of its going on. Now, this is precisely the assumption, the truth of which may, at this date at any rate, be questioned. Do persons asking for, and accepting, an allotment of shares, do so upon the faith of the scheme certainly whole tenour of a railway company prospectus, and of going on? Let us, for a moment, consider what is the the letter of application for shares. The prospectus, in its language, invariably and unmistakeably conveys the idea of a mere project being on foot; and it would re

any

quire 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 attain maturity. The application for shares also, when in the usual form, shews, upon the face of it, that the applicant knows he is proposing to take shares in something that is still incomplete, and may or may not go on to maturity. Many prospectuses, in terms, state, that the deposits will be required for the preliminary expenses; and, whether they do or do not, can any man say, when he subscribes to a mere undertaking, which, he knows, cannot pass through any preliminary stage without expense, and which, he must know, may fail to attain maturity, quite independently of any volition of the active promoters; can any man in his senses, subscribing under such circumstances, be heard to say that he did not advance, or contract to advance, his deposits, with a full knowledge, or with the full means of knowledge, that the payment of them could not ensure the completion of the project? Can he really say, in the language of Nockels v. Crosby, that he advanced his money upon the faith of the project going on? There is, clearly, we contend, no ground for imputing to a subscriber any such belief; and, therefore, it cannot be presumed to be the intention of the parties to such a contract, that, if the undertaking fails to proceed, the active promoters alone shall bear all the preliminary expenses. Besides, what is meant by the persons "who set a scheme afoot," or the "original 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, the 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 obCessat 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 inviding 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, so, 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 to put the case so high as to say that there was an implied contract that the scheme should succeed; there was an express contract that the money subscribed should be employed in a particular way, and it was not

The truth seems to be, with regard to subscribers for shares in such undertakings as projected railway companies, that they are, ex necessitate rei, and unless they wilfully shut their eyes, perfectly well aware that they are advancing their money to forward an undertaking which must, in every stage, be attended with some expense, and the ultimate completion of which is a contingency; and their object is, by the advance of such sums as they undertake to pay by way of deposit, to entitle themselves to the profit which they hope may arise, with the perfect knowledge, that, in the event, it may turn out that no fruit will have arisen from the preliminary expenditure. If this be what, as ordinary men of business we know must be, the substantial understanding of the parties, then, does not a legal inference arise, that it is of the essence of the legal contract between a provisional committee and the allottees of shares, that the latter are intended to be (always supposing no fraud in the case) liable to contribute, by their deposits, to the preliminary expenses of the company, if it shall have failed to reach maturity? The legal inference being no more than that intention which, in the absence of express contract, the law will impute to the parties, upon the ground, that, looking at their relative situations, and the nature of the subject-matter of the contract, it would be contrary to justice and common sense to impute to them any other intentions.

the prospectus, the application, and the allotment, taken together, that the allottees shall contribute their shares of the preliminary expenses. If, on the other hand, it shall be determined that the promoters and allottees are partners, then we conceive that the Court of Chan

cery would find means consistently with authority, or,
if need be, by creating a precedent, to avoid the difficul-
ties interposed by the ordinary rules of pleading, in the
way of the attainment of substantial justice.
Allottees, in fine, appear to us to be hung upon the
horns of a dilemma. They may choose whether they
will not be partners, and be sued at law; or whether
they will be partners, and be sued in equity.

Correspondence.

TO THE EDITOR OF THE JURIST.

THE JURIST of February 28th contains some remarks "On Descent among Coparceners." J. W., their author, names two or three of his contemporaries, whose opinions are contrary to those advocated. He might

have added Mr. Shelford to the number.

The principle involved in the question is an important one; yet not only do we look in vain for any decision on the point under 3 & 4 Will. 4, c. 106, but we are no less baffled in attempting to elicit an authoritative reply from the more ancient oracles of law. There may no doubt be cases in which the identical question is raised: we, however, have been unable to find any such; and may fairly presume that the cases ingeniously brought forward by J. W. are the most decisive the books contain. When we come to examine them we think we shall be able to shew that they fail to establish

his views.

every

The new Statute of Inheritances enacts, "that in case descent shall be traced from the purchaser." (3 & 4 Will.4, c. 106, s. 2). Let us suppose that F. dies intestate, leaving two daughters, D 1. and D 2.; and that D 1. like wise dies intestate, leaving issue. The issue claim by descent, and the descent must be traced from the purchaser, or, in other words, the subject-matter of inheritance must devolve on the purchaser's heir. Now, D 2. and the issue of D 1. together constitute the composite heir of F. We maintain, therefore, that the subject-matter of descent, namely, the moiety held by D 1. till her death, and by that event set in motion, will devolve in equal moieties upon D 2. and the issue of D 1.; in other words, that D 2. will thus become possessed of three-fourths of F.'s estate, while D 1.'s issue will have only one quarter

between them.

Under the old law, where seisin, not purchase, constituted the root of descent, we should have had a strictly analogous case had F. left two daughters, D 1. and D 2., his co-heirs, and had one of such coparceners died, leaving issue, before she or her sister had obtained scisin*.

There are two other cases in which the like difficulty seems to arise, as well under the old as the new law. The first is that of F., tenant in tail general, leaving at his death two or more daughters coparceners, one of whom dies, leaving issue.

The second is that of F., a purchaser in fee simple, devising to X. for life, and leaving at his death two or more daughters, (to whom the reversion expectant on the life tenancy descends), one of whom dies during the life tenancy, leaving issue.

We are aware that it has been argued, that, under these circumstances, the descent of the entire estate must be looked upon as remaining open. We believe such a view to be contrary to law; for coparceners have, as between themselves, several freeholds, which we maintain might severally be subjects of descent even before actual seisin; and, in the analogous case of reversioners, we think it equally clear that the coparceners of the reversion would have several estates, which might severally become subjects of descent during the tenancy for life. We are not aware that it has ever been disputed that the shares of such reversioners might be effectually severed by alienation. But it is needless to perplex the subject under discussion by pursuing these collateral questions.

We have stated all these analogous cases, at the risk of being prolix, in the hope that they may tend to illustrate the question in all its bearings. One of these cases concerns the devolution of an estate tail; and, before proceeding further, we would take the opportunity thereby suggested of remarking on the plan pursued by J. W. in his inquiry. We cannot congratulate him on 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 whereon to support his arguments as to the devolution of estates in fee simple; for, as saith Lord Coke*, " from this estate in fee simple, estates in tail and all other particular estates are derived; and therefore worthily our author (Littleton) beginneth his first book with 'Tenant in fee simple.'" Such a course would, we submit, have suggested more obvious and satisfactory solutions of the difficulties and anomalies which J. W. has not failed to attack with Quixotic courage, and to explain away with all the ingenuity of his favourite and subtle, but somewhat fanciful, author, Perkins.

Could we once fully satisfy ourselves of the exact course in which, under any given circumstances, a fee simple would have devolved, a fee tail need not, we think, cause much difficulty; and such difficulty would resolve itself simply into this: how was the course of devolution altered by cutting down a fee simple by restrictions confining the descent to lineal heirs of the donee, and the reservation to the donor of a reversion consequent upon the possible default of such lineal descendants of the donee? It is perfectly clear, that, except so far as the well-known words of the statute prevented, a fee tail devolved precisely as a fee simple would have done.

Such we believe to be the clue to the true explanation of such an anomaly as tenancy by the curtesy of an estate tail. Previously to the Statute of Westminster 2, the well-established rule of descent had been "Seisina facit stipitem;" and, from this reason, we do not doubt it was that seisin was one of the requisites of tenancy by the curtesy. By that statute, seisin, as regards estates in tail, became, in time, utterly inoperative for this purpose. It may, however, have taken time to establish such an interpretation of the statute, as that, on the death of a tenant in tail, the heir of such person must be passed over, and the heir of the original donee sought for; and meanwhile it may have been ruled that the husband of such tenant, if the old requisitions had been complied with, should, notwithstanding the statute, be tenant to the curtesy, and this rule may have been too firmly established to admit of alteration before its anomalous nature was thoroughly perceived. It is very unlikely that the framers of the Statute of Westminster 2 ever contemplated abolishing tenancy by the curtesy of estates tail. Add to which, that former usage, and in a feudal age many other causes, would have operated in favour of the claims of the widower against his issue; and thus a blind acquiescence with the former practice, regardless of the principle it had embodied, or a judicial timidity and disinclination to follow the statute to its fair consequences, and abolish tenancy by the curtesy of estates tail, may have rendered such estates exceptional cases, in which such tenancy was still allowed, although the general rule that the issue should claim as heir of the mother could not any longer be complied with: at all events, nothing can be more explicit than the terms in which the highest authorities lay down the rule, nothing more certain than the legal existence of tenancy by the curtesy of estates tail, notwithstanding. We hope our explanation of this anomaly will prove as sa

*We have followed J. W. in giving him this title, which was in his day a common ellipse for Lord Chief Justice; but we doubt whether we are not guilty of a misnomer in so doing.

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