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Definition of crime and distinction between crimes and torts considered-
Division of crimes in English law-The punishments of crimes which
are inflicted by English law considered-Essential ingredients of crime
and persons capable of committing it
1161-1165

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Accident-Duress-Insanity-Infancy-Drunkenness-Ignorance of law
-Ignorance of fact-Necessity-considered in their relation to crime

The Sovereign-Reason for the constitutional maxim, "The king can do no
wrong"-Indictments against corporations-The law as to the various
persons implicated in the commission of a crime-viz.: principals in
the first and second degree and accessories before and after the fact
considered and illustrated
1171-1172

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BOOK V.

EQUITY.

INTRODUCTORY.

Ir has already been pointed out that by the 34th section of the Judicature Act, 1873, which came into operation on the 2nd of November, 1875, certain business has, subject to the power of transfer vested in the High Court of Justice, been assigned to the Chancery Division. These subjects, along with others, which seem to fall most appropriately within this portion of our work, shall now be considered in the following order :

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A trust may be described generally as an obligation affecting Definition property, legally vested in one or more (the trustee or trustees), which obligation he is, or they are, bound to perform, wholly or partially, for the benefit of another or others (the cestui que trust or cestuis que trust) in whom the equitable interest is vested (1). Generally speaking any property whether real or personal may be made the subject of a trust.

A trust has also been defined as a "beneficial interest in or (') Watson's Compendium of Equity, p. 959.

VOL. II.

2 M

Definition. beneficial ownership of real or personal property unattended with the legal or possessory ownership thereof." This definition, which has been adopted by several subsequent writers, has been made the subject of somewhat severe criticism (1), but it may serve to bring clearly before the mind of the reader the general idea of a trust (2).

Creation

of trust.

For the purpose of creating a trust it is necessary to have It is an (1) a settlor; (2) a trustee; (3) a cestui que trust. established rule of the Court never to allow a trust to fail for the want of a trustee. Accordingly, if no trustee be named, or if he die in the lifetime of the testator, or if he be an improper or incapable person, yet the trust shall prevail (3). "The Court has from a very early period decided that even an Act of Parliament shall not be used as an instrument of fraud; and if in the machinery of perpetrating a fraud an Act of Parliament intervenes, a Court of Equity does not, it is true, set aside the Act of Parliament, but it fastens upon the individual who gets a title under that Act, and imposes upon him a personal obligation, because he applies the Act as an instrument for accomplishing a fraud. In this way a Court of Equity has dealt with the Statute of Frauds, and in this manner it also deals with the Statute of Wills" (4). The selection of some person to act as trustee is with the settlor. Where trusts and powers require the exercise of judgment and discretion, such trusts and powers are supposed by the Court to have been committed by the testator or settlor to the trustees whom he appoints by reason of his personal confidence in them. The settlor may also so act as to constitute himself a trustee for those whom he intends to benefit (5).

Where any formalities are prescribed by law for the declaration or creation of the trust they must be observed, and the object of the trust must be lawful (6).

The subject of the creation and transfer of trusts was

(1) Underhill on Trusts, p. 2, et seq. (*) See an elaborate discussion on the early history of trusts in Lewin on Trusts, p. 1, 8th el. Littleton's definition of a trust of real property founded on the definition of a use is as follows:-"A confidence reposed in some other, not issuing out of the land, but as a thing collateral, annexed in privity to the estate of the land, and to the person touching the land, for which cestui que trust has no remedy but by subpœna in Chancery," i.e. now by an application to the Chancery Division (sect. 34 of the

Judicature Act, 1873).

(3) Gravenor v. Hallum, Amb. 643; Robinson v. Flight, 4 D. G. J. & S. 608.

(1) Per Lord Westbury in, McCormick v. Grogan, L. R. 4 H. L. 82.

(5) To render a gift or voluntary trust valid there must be what amounts to either a complete transfer of the property, or a valid declaration of trust: Richards v. Delbridge, L. R. 18 Eq. 11.

(6) Per Lord O'Hagan, Dawkins v. Lord Penrhyn, 4 App. Cas. 51, 68.

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