A NOTE ON TRUSTEESHIP, AND ON THE PRESENT STATE OF
OUR LAWS.
THE newspapers lately reported various arguments in the case of Marsh and Others, before the Lord Chancellor*. The main question in the case is the responsibility of trustees. From our own experience, we know no office more anomalous in its character. Trustees are of two kinds,—nominal, where
the name Merely is employed to answer a fiction or a form of law; and real, where the duty is to protect the interests of others. The latter is the subject of our present remarks. It is a very common office, and the property, which
* Fauntleroy, being the trustee of some stock, with two other gentlemen, con- trived, by a forgery of their names, to obtain possession of it, and applied the pro- duce of it to the b.inking purposes of the firm of Mare.: and Co. The trustees claimed to prove against the estate of Marsh and Co., who have since become bankrupts, on the ground that the whole firm were liable for the acts of every member of it, and the more so as it had profited by his misconduct. On the other hand, it was con- tended that the trustees should have watched the interest of those for whose benefit they were appointed. The Court, having taken time to consider the case, has not yet delivered judgment upon it.
is subject to the laws respecting it, is of very great magnitude, being indeed a large proportion of the property of the whole kingdom. We have said that the condition of a trustee is anomalous. The appointment is founded on the personal character and credit of the individual ; and yet the exercise of his discretion is prescribed within the narrowest limits. He is usually relieved by the terms of the trust from all responsibility arising front the misconduct of his colleagues ; and yet his appointment is generally intended to be a check upon their conduct. The objects of the trust frequently miscarry, from the want of adequate powers ; and the trustee is chosen for his discretion, his judgment, and skill. The office, from motives of friendship, or a feeling of obligation, or the influence which it ceders, and sometimes from no motive whatever, is often inconsiderately accepted ; and, as a necessary consequence, is negligently performed ; and the end of all these things is, that the affairs of the trust are referred to the control and decision of the Court of Chancery ; where the patrimony of orphans is con- sumed, for the expenses of the trustees are commonly disbursed from the trust fund. The intricate laws relating to the duties of trustees, render the office impracticable without the aid of legal advisers ; and the great liabili- ties to which a departure from the strict letter of the trust may expose them to induces in general a strong aversion to favour the views and interests of those for whose benefit the trusts were created—though a contribution front the fund may have a great influence on their fortunes or future conditions in life : and thus it has fallen to our lot to know that the very purposes of the trust have been frustrated. A father dying when his children are young, cannot foresee the situations in life which their peculiarities of temper or talent may lead them into ; and yet, mayhap, limits their coming of age, as far as the enjoyment of his property is concerned, to a later period than is limited by law. If his son possess talent or the good fortune to bring him into a profession or business at a much earlier period than is usually the lot of young men, his success may be retarded, or the opportunity may be lost, from the want of the necessary aid which a small property might supply. We have glanced at this subject, as it forms the larger portion of the sub- jects which come within the jurisdiction of the Court of Chancery. The proceedings of that Court, and indeed of all our courts of judicature, are too little regarded. The law is gradually moulded into new forms, and takes new characters from the successive decisions of the Judges ; who being themselves bound by former decisions, are in some degree the arbiters of tuture cases. The portion of law forming the statutes or acts of Parliament, is trifling in extent and operation, when compared with that which is con&. posed of the decisions of the Courts, interpreting and expounding the sta tutes, and former cases in reference to the peculiar facts of that which then happens to occupy their attention ; and thus unwittingly forming a mass of law comprising every principle, in every variety of form and character, front the complexity of which it becomes impossible to dis- cover the applicability of a principle to a new case possessing facts and features entirely different from the facts and features of all the cases which have preceded it. The acts of the Legislature receive the attention of the public, because they are often tests of the strength of the two great parties in the State ; but the other growing branch of the law, except in such glaring cases as the Wellesley case, as they involve no point of prominent interest, are too generally neglected. The present state of the law is owing to the inattention of the public mind to it. If the intel- ligence of the country were directed to the subject, and it more fre. quently formed part of the discussions of the press, the knowledge of the law would be more prevailing ; and by a necessary reaction, the public would require all law to be within the range of their comprehension. As it is, the largest and the highest head, and the longest life, with unwearied industry and research, are insufficient for the attainment of more than a very moderate knowledge. Lawyers are commonly indexes of greater or less value ; they but point to where the law may be found,—a great merit amid such abundanee of repealed and unrepealed, written and oral law—of decisions of this Court opposed to decisions of another Court, and both reversed by the Court of Appeal. Our law, as it stands at present, is the fruit of various emergencies, from which we have received the light of an extensive experience ; and it is now the proper time to systematize and arrange,—a measure which would do honour to the nation, and be of no less advantage to the lawyers themselves, than it would certainly be to the rest of the people.
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