48. XII. The last maxim which will be noticed is that equity acts specifically, and not by way of compensation; which embodies a general principle running through the whole system of chancery jurisprudence. This principle is that equity aims at putting parties exactly in the position which they ought to occupy; giving them in specie what they are entitled to enjoy ; and putting a stop, actually, to injuries which are being inflicted. Thus, equity decrees the performance of a contract, and does not give damages for its breach. So, also, equity will, under certain circumstances, restrain the commission of destructive trespass;2 whereas at common law all that the aggrieved party could obtain would be a money compensation for the injury. And so, again, a chancellor will sometimes compel a party specifically to make good his representations by which another has been misled; while in the common law action of deceit, damages alone can be recovered.

In some exceptional cases, indeed, equity will afford compensation in lieu of specific relief; but such cases are rare. These exceptions, as well as the general principle contained in this maxim, will be illustrated more at length under the appropriate heads of Specific Performance and Injunction.

Post, Part III., chap. on Specific 2 Post, Part III., chap. on Injunctions. Performance.

PART I.

EQUITABLE TITLES.

CHAPTER I.

TRUSTS; THEIR ORIGIN, HISTORY, AND GENERAL NATURE.

54. General nature of Trusts; Active and 61. Alienation of Equitable Estates; Lia

Passive Trusts.

bility for debts.

55. When Trusts will be executed by the 62. Exceptions to the general rules of deStatute; Rules in several States. volution of Equitable Estates.

56. Lawful and Unlawful Trusts.

49. A TRUST in its technical sense is the right, enforceable solely in equity, to the beneficial enjoyment of property of which the legal title is in another. The radical idea of a trust is this separate co-existence of the legal title with the beneficial ownership, or, as it came to be called, the equitable title. The perfect ownership is, as it were, decomposed into its constituent elements of legal title and beneficial interest, which are vested in different persons at the same time. Thus to take the simplest case, if land is conveyed or devised to A. on such terms that he is compellable to hold it for the benefit of B., here A. has the legal title, B. has the beneficial ownership, or a right to enjoy the land; and this right, originally enforceable solely in equity by suing out a subpoena against A., was considered as attaining the dignity of a title.

1 See the argument in McDonough's Exrs. v. Murdoch, 15 Howard, 391.

The length of time during which this separation of the ownership into its constituent elements continues, and the extent of B.'s control over the property, in other words the duration and the nature of the trust, depend upon the terms by which it is created, subject, of course, to certain established legal rules.

50. It has been supposed that the English trust was identical with, or, at all events, bore a very great resemblance to, the Roman fidei commissum; but that there is a broad distinction between the two has been pointed out by high authority. In McDonough's Executors v. Murdoch' the question arose whether a "trust" was within the language of the Louisiana code prohibiting substitutions and fidei commissa, and it was held that it was not. The difference between the two was clearly explained in the opinion of the court in that case,2 and indeed is obvious from a consideration of the nature of the fidei commissa as they existed under the Roman law.

The fidei commissum was the means of carrying out substitutions which could not be otherwise effected by the testator. By a substitution a party could be appointed to take the inheritance in case the person who was designated as heir in the first instance, did not make his election to accept the inheritance within a specified time, or in case he was a descendant of the testator, and after becoming heir died under puberty. Thus, the testator could say, "Lucius Titius, be heir and make thy cretion within the next hundred days after thou hast knowledge and ability. But if thou dost not so make cretion be disinherited, and then Mævius be heir." And also, "Titius, my son, be my heir. If my son shall not become my heir, or if he become my heir and die before he comes into his new governance, Seius be heir." If, however, a stranger, and not a descendant, was instituted as heir, a substitution could not be made in such a way that if the heir died within a specified time some other person should be heir to him.7 But this end was effected by means of the fidei commissum,

15 Howard, 367.

2 Id. 407-409.

3 Commentaries of Gaius (Abdy & Walker), Book II., 22 174 to 180; and see McDonough's Exrs. v. Murdoch, 15 How. 407, 408.

4 Election, choice.

5 Com. of Gaius, ut sup.

6 Id. & 179.

7 Id. & 184.

whereby the heir was bound to deliver over the inheritance either in whole or in part, at or after a designated time.1 In other words, the fidei commissa were the means whereby the transmission of estates, to be enjoyed by successive owners, was secured. The performance of the fidei commissa was enforced at Rome by the consul or the prætor whose special jurisdiction was over fidei commissa, and in the provinces by the governor.3 Subsequently a prætor was appointed for the special purpose of hearing such causes, receiving, from the nature of his duty, the name of prætor fidei commissarius.*

It is true that in both the Roman fidei commissa and English trusts, a confidential relationship was presumed to exist; but in the former it was called into being for the purpose of transmitting the inheritance, in the latter in order to regulate the present enjoyment of the estate."

The fundamental idea, moreover, which lay at the root of both trusts and fidei commissa was probably the same, viz., that under certain circumstances it might be convenient or desirable that one man should take and hold property, the benefit of which was sooner or later to accrue to another; but the development of this idea, in the two systems of jurisprudence, was essentially different.

The distinction, therefore, which it is desirable to remember as existing between the fidei commissum and the trust is this, that in the former there was no separation of the legal and equitable title, but there was simply a request, which afterwards became a duty imposed upon the gravatus, to convey the inheritance to another person, either immediately or after a certain event, e. g., the death of the first taker; whereas, in the trust, the perfect ownership is decomposed into its constituent elements of legal title and beneficial interest, which are vested in different persons at the same time.

It may also be here remarked that the fidei commissa arose out of testamentary dispositions; whereas, English trusts were

1 Com. of Gaius, ?? 184, 246 to 289.

2 Resembling, in this particular, the system of estates tail in the English law.

3 Gaius, Book II., 278.

5 Amos on the Science of Jurisprudence,

91.

6 A trust to convey an estate to another would bear a near resemblance to a fidei

Justinian, Lib. II., Tit. xxiii., 21 and commissum.

originally created only by conveyances inter vivos, land not being devisable before the statute of Henry VIII.

It may further be observed here that the usus and usufructus of the Roman law are not to be confounded with the English use or trust. The usus in the Roman law of property consisted in the right to the natural use of a thing, owned by another, by some definite individual, and the family circle of which he constituted the head, and was ordinarily not transferable. The usufructus was of greater extent than the usus, there being added to the latter the fructus or a right to enjoy the fruits of land to a greater extent than is necessary for daily consump tion; and this right could be let, sold, or given to another.1

51. When it was exactly that the idea of the separation of the complete ownership into the legal and equitable titles first made its appearance in England, it is, perhaps, impossible to say; nor can it be asserted with any certainty whether this idea was one of purely English growth, or whether it was imported from some other system of laws. The probabilities are in favor of its indigenous nature; for, as we have seen, it has no exact counterpart in the Roman law; nor is it likely that the English lawyers of very early times had opportunities of studying this law, if any such ideas could indeed have been gathered from it.3

In early times, the idea of the separation of the legal and equitable titles must have met with an enemy in the feudal system. To allow a feud to be held by one person in trust for another, would have created confusion in determining to whom the lord was to look for the performance of the services annexed to the feud, and for these pecuniary and other advantages which he derived from the death of the feudatory, or the alienation of the estate. Hence Mr. Butler has regarded the introduction of

1 See Justinian's Institutes, Lib. II., Tit. IV. and V. Tomkins and Jenkyn's Modern Roman Law, 173, 174.

2 See the opinion of Judge Campbell in McDonough's Executors v. Murdoch, 15 Howard, 409.

3 The tendency in modern times is, perhaps, to exaggerate the extent to which the early English law is indebted to

the Roman law. Points of resemblance nearly always exist between all systems of jurisprudence; and, therefore, it should not be hastily inferred that the rules of one system were borrowed from another. The Roman law which influenced the English law was probably the early Roman law-not the law of Justinian.