TRIBUNAUX DE COMMERCE-contd. president, judges, and substitutes elected in an assembly of the principal traders. No person under thirty years is eligible as a member of the tribunal, and the president must be forty years of age at the least. The tribunal takes cognizance of all cases arising between merchants, and also of all disagreements arising among partners. The course of procedure is as in civil cases, and with an appeal to the regular Courts. TRIORS OF JURORS. Persons selected by the Court to examine whether a challenge made to the panel of jurors, or any of them, be just or not. A challenge to the panel is grounded on some probable cause of suspicion, as an acquaintance, or the like, the validity of which is determined by these triors. These, if the first juror be challenged, are two indifferent persons named by the Court; if they find one man indifferent, he shall be sworn, and he with the two triors shall try the next, and when another is found indifferent and sworn, the two triors shall be superseded, and the two first sworn on the jury shall try the rest. Cowel; Smith's Action at Law, 146. See also titles CHALLENGE; JURORS. TRITHING: See title TITHING. TROVER (from the Fr. trouver, to find). Is that form of action adapted to try a disputed question of property in goods or chattels. It is called trover, because it is founded upon the supposition (which, however, is in general a mere fiction), that the defendant found the goods in question; and the declaration, after stating such a finding, proceeds to allege that the defendant converted them to his own use (such conversion being the true gist of the action); and then he claims damages for the injury which he has sustained by such wrongful conversion. In form, the action is a fiction; in substance, it is a remedy to recover the value of personal chattels wrongfully converted by another to his own use. The form supposes the defendant may have come lawfully by the possession of the goods. This action lies, and has been brought, in many cases, where in truth the defendant has got the possession lawfully. It is an action of tort, and the whole tort consists in the wrongful conversion. Two things are necessary to be proved to entitle the plaintiff to recover in this kind of action: First, property in the plaintiff, and, secondly, a wrongful conversion by the defendant (see per Lord Mansfield in Cooper v. Chitty, Ì Burr. 20; 1 Smith's L. C. 230). Moreover, the property necessary to support the action must be one which draws with it a right to TROVER-continued. the immediate possession also of the thing converted (Gordon v. Harper, 7 T. R. 9); consequently, if the thing is in pledge another, the pledgor, although owner, cannot bring the action. But the pledgee, s having what is called a special property in the thing, may bring the action; and generally any bailee of the goods may do so on the like ground. TRUSTS. Uses having existed previously to the Statute of Uses (27 Hen. & c. 10), as confidences which the Court of Chancery upheld and enforced, these early confidences were the earliest form of trusts; but after that statute, these uses having in consequence thereof become transmuted into legal estates, the jurisdiction of Equity over trusts promised to cease, or at any rate, to become unnecessary, when the decision in Tyrrell's Case (4 & 5 Phil. & M.), whereby the Courts at Westminster refused to recognise any second use upon a first use, i.e., a use upon a use, revived or restored to the Courts in Lincoln's Inn, and even increased, their former jurisdiction over trusts. In regulating the qualities and incidents of trust estates, Equity followed the Law in its leading principles, construing for example, words of limitation in the like manner as the same were construed at Law, and generally (although with some exceptions hereinafter mentioned), adopting the rules of Law with little or no varistion. Thus, in fact, in every estate, there came to exist, by possibility at least, and in general in actual fact as well, two estates of equal quality and duration, existing side by side, and like parallel lines of equal length running beside each other, the one estate being called the equitable estate and the other the legal estate. And like parallel lines, the two estates in their own nature never meet, although just as the two parallel lines being laid upon the top of each other would coincide and grow into one line only, so the two estates being by force, ab extra themselves, brought together do also coincide and grow into one estate only, a union which is called the union of the equitable with the legal estate in fee. Two statutes are all-important in their bearing upon trusts, the first of the two being the Statute of Uses already mentioned, and the other of them the Statute of Frauds (29 Car. 2, c. 3); and in distinguishing these two statutes, it is essential to note,-(1.) That the Statute of Uses, on the one hand, extends to freehold hereditsments only, and neither to leaseholds nor to copyholds; and, à fortiori, not to pure personal estate; and, (2.) That the Statute of Frauds, on the other hand, extends to free heads : I. Express Trusts,-being trusts which are created in so many fit and appropriate terms, and which are subdivided thus, (a.) Express Private Trusts,-being trusts affecting individuals only; and (b.) Express Public Trusts,-being trusts affecting public bodies primarily. II. Implied Trusts, being trusts founded on the presumable, although unexpressed, intention of the party who creates them; and III. Constructive Trusts,-being trusts which are founded neither on an expressed nor on any presumable intention of the party, but which are raised by construction of Equity without any regard to intention, and simply for the purpose of satisfying the demands of justice and good conscience. The following is a more or less exhaustive list of all the varieties of trusts falling under each of the three principal heads above enumerated, and for a particular description of each such variety, see the subtitle that is descriptive thereof. The varieties of trusts are:- (1.) Express Private Trusts: (a.) Executed and executory trusts; (b.) Trusts voluntary and for value; (c.) Trusts in favour of creditors, (2.) Express Public Trusts, called also Charitable Trusts. II. Implied Trusts. (a.) Trusts resulting from a purchase (d.) Trusts under conversions that (e.) Trusts in cases of joint tenancies, whether for purchasers, or for mortgagees. TRUSTS-continued. III. Constructive Trusts. (a.) Vendor's lien, also vendee's lien, in respect of purchase-money either unpaid or prematurely paid; (b.) Renewal of leases by trustee in (c.) Permanent improvements to an There are certain requisites for the creation of a trust, other than and in addition to the statutory requisite of writing above mentioned, where writing is required, these requisites being three in number, and familiarly called the Three Certainties in Trusts. These three certainties are,— (1.) Certainty in the words creating the trust; (2.) Certainty in the subject of the trust, i.e., in the trust property; (3.) Certainty in the object of the trust, i.e., in the beneficiary. (See Knight v. Knight, 3 Beav. 172; 11 Cl. & F. 513). And failing any one or more of these three certainties, the trust which was intended inevitably fails. But it being clear that some trust was intended, the trustee is not, in such cases, entitled or permitted to take or keep the property for his own benefit (Briggs v. Penny, Mac. & G. 546), if there are any other persons entitled (whether as devisees or legatees of the residue, or as heirs, or next of kin of the testator or intestate), to have it made over to them according to its quality; and if there are no such other persons as last mentioned, then the Crown takes the personal estate as bona vacantia (Taylor v. Haygarth, 14 Sim. 8); but the trustee keeps the real estate for his own benefit, his tenure thereof excluding escheat. Burgess v. Wheate, 1 Eden, 177. Executed and Executory Trusts.—An executed trust is one which the person creating it has fully and finally declared, whence also it is called a Complete Trust; an executory trust is one which the person creating it has not fully or finally declared, but has given merely an outline of it by way of direction to the conveyancer, whence also it is called sometimes an Incomplete and sometimes a Directory Trust. The Court of Chancery deals very differently with executory trusts to what it does with executed ones. Thus (1.) That Court follows the Law (æquitas sequitur legem) with regard to executed trusts, e.g., the rule in Shelley's Case applies to these without any exception; whereas with regard to executory (a.) If the executory trust occurs in marriage articles (Trevor v. Trevor 1 P. Wms. 622), or in a will manifestly pointing at marriage (Papillon v. Voice, 2 P. Wms. 571), the Court refuses to follow the rule in Shelley's Case as to their construction, as by so doing it would give to the intended husband full power of defeating the prospective issue of the intended marriage of the provision presumably intended to have been made in their favour; but (b.) If the executory trust occurs in a will, and that will does not manifestly point at marriage, the Court follows the rule in Shelley's Case, and gives to the ancestor an estate in fee simple or in fee tail without reference to his issue, there being no presumption in this case of any intention to provide for such issue (Sweetapple v. Bindon, 2 Vern. 536; Papillon v. Voice, supra); and (2.) The Court of Chancery is ready, and is even compellable, in all cases of an executed trust to give full effect to the same, saving all prior equitable rights, and that even in favour of volunteers, but the Court refuses and is not compellable in any case of an executory trust being in favour of a volunteer to give any effect whatever to the same, which consequently falls to the ground, although the Court will in many cases of executory trusts being in favour of purchasers for value and such like, give effect thereto, saving all prior equitable rights. See title TRUSTS VOLUNTARY AND FOR VALUE. A trust may be an executed trust in either of two ways, either (1.) By declaration of trust, which is a simple and informal mode of creating it, requiring, however, writing (although not a deed) in the case of land (whether freehold, copyhold, or leasehold), but not even requiring any writing in the case of pure personal estate. The Court of Chancery is bound to enforce a trust that is completely created in this simple manner (Ex parte Pye, Ex parte Dubost, 18 Ves. 140). If the person should be both legal and equitable owner of the property of which he declares the trust, he declares himself the trustee thereof; if, on the other hand, he is the equitable owner only, he directs his own trustee (who is the legal owner) to hold the property upon the trusts which he then and there specifies in the direction; and such latter direction, although it has not (nor any notice of it) been sent to the trustee, and although the trustee refuses his assent to it, is binding and effectual against the party giving it; but notice to the trustee is necessary to give the new TRUSTS continued. cestui que trust a right in rem over the trust property which shall protect him in it against third persons claiming without notice thereof (Bill v. Cureton, 2 My. & K. 503); Or, again, a trust may be an executed trust, (2.) By assignment or conveyance of the trust property, according as it is personal or real estate, to a trustee, accompanied with a limitation or declaration of the trusts thereof; but many difficulties have arisen with reference to this second mode of creating a trust, which manifestly is a mere technical or formal mode of doing so. The sources of the difficulty have been two, and (apparently) only two, that is to say, (a.) The circumstance that, at Law, and also in Equity, there can be no assignment, strictly so called, of personal estate, and no conveyance, strictly so called, of rel estate otherwise than by deed; and neither the statutes (e.g., the 30 & 31 Vict. c. 14, as to Policies of Life Assurance; the 31 & 32 Vict. c. 86, as to Policies of Marine Assurance), which prescribe a simple statutory form of assignment or conveyance, nor the Judicature Act, 1873, ss. 25, 26. itself have altered the former law of the Courts in this respect; and (b.) The further circumstance, that until the Judicature Act, 1873, s. 25, the Courts of Law and the Courts of Equity respectively proceeded upon different principles with regard to the assignability of choses in action (see that title), which con stitute by far the larger part of the personal property which is made the subject of a trust. From these two sources of difficulty combined, it has been held in numerous cases that trusts attempted to be created in the more formal manner, i.e., by assignment of conveyance accompanied with an express declaration of the trusts, are executory only and not executed in the following cases, (a.) When the assignment was attempted to be made by the use of the words, "I do hereby assign," &c., indorsed on the back of the receipt given for a subscription paid upon a call in respect of shares in a company, the indorsement not having been executed and delivered as a deed. Antrobus v. Smith, 12 Ves. 39; (b.) Where the assignment was at tempted by the like form of words also indorsed on the back of a bond, the indorse ment not having been executed and delivered as a deed, although the bond itself was delivered (Edwards v. Jones, 1 My. & C. 226); and even (c.) When collateral formalities, being such as went to affect the efficacy of the TRUSTS-continued. deed for the purpose of assignment had been neglected, although the assignment was by deed duly executed and delivered, and therefore valid by the general law. Searle v. Law, 15 Sim. 95. On the other hand, it has been held in still more numerous cases, that trusts attempted to be created in the more formal manner are executed and not executory merely in the following cases : (a.) Where the property was assignable at Law, and the person assuming to assign it used for that purpose a deed duly executed and delivered, there being no neglect of collateral formalities interfering with the validity of the deed for the purpose of assignment; and even (b.) Where the property was not assignable at Law, but the person assuming to assign it used for that purpose a deed duly executed and delivered, there being no neglect of collateral formalities interfering with the validity of the deed for the purpose of assignment. Fortescue v. Barnett, 3 My. & K. 36; Kekewich v. Manning, 1 De G. M. & G. 176. And a comparison of the two cases just cited shews, that for the validity of such an assignment in the creation of a trust it makes no difference whether the assignor is both legal and equitable owner, or equitable owner only, provided that if equitable owner only, it is not within his power at the time of the assignment to clothe himself with the legal ownership as well, before making the assignment (Gilbert v. Overton, 2 H. & M. 110); but the assignment is executory only, if it is within his power to do so at the time of the assignment and he neglects to do it before assigning (Bridge v. Bridge, 16 Beav. 322); but of course only if he knows it. Gilbert v. Overton, 2 H. & M. 110. Trusts Voluntary and for Value.-Voluntary Trusts are trusts in favour of a volunteer, i.e., of a person as to whom the trust is a pure bounty or gift, for which he pays or gives nothing as the price thereof; on the other hand, trusts for value are trusts in favour of purchasers, mortgagees, or others, whom the Courts of Equity regard as valuable claimants. (A.) If a voluntary trust is executed, i.e., complete (see title EXECUTED TRUSTS), the Count is ready and is compellable to enforce it; but if a voluntary trust is executory, i.e., incomplete, the Court refuses and is not compellable to enforce it, and accordingly it falls to the ground (Jefferys v. Jefferys, Cr. & Ph. 138). This rule is without any exception, excepting (but to a very limited extent) in the case of powers, and excepting in the case of powers in the nature of trusts; and accordingly, in the TRUSTS-continued. case of voluntary trusts, the conflict has in general been confined to the finding of one fact, viz., whether the trust is executed, ie., complete, or is executory, i.e., incomplete, as to which see the sub-title EXECUTED AND EXECUTORY TRUSTS. (B.) On the other hand, a trust for value, whether it be executed or executory, is invariably enforced by the Court of Chancery, saving all prior equitable rights. Voluntary trusts and trusts for value are also distinguished by the Courts of Equity in many other ways; thus (a.) A voluntary settlement, whether of real or of personal estate, if it be fraudulent within the meaning of the stat. 13 Eliz. c. 5, is void against creditors who were in existence at the date of the settlement, and are thereby hindered in the recovery of their debts (Spirett v. Willows, 3 De G. J. & S. 293), or who not having become creditors already at the date of the settlement, have an equity to stand in the position of the creditors who were already such at that dato (Freeman v. Pope, L. R. 5 Ch. 538); but although being fraudulent it is good and valid against the settlor himself (Smith v. Garland, 2 Mer. 123). On the other hand, a settlement for value, whether of lands or goods, if it be not fraudulent within the meaning of the Common Law, i.e., in common sense and reason, is valid against all the world, including the settlor, and also creditors and purchasers, no matter although these latter persons may be hindered or frustrated in the recovery of their debts or purchases; and a very little value, not being colourable, will in general suffice, more especially if it be conjoined with the consideration of blood or natural affection, which the law considers meritorious (Hewison v. Negus, 16 Beav. 594); again, (b.) A voluntary settlement (being, however, of real estate only), if it be fraudulent within the meaning of the statute 27 Eliz. c. 4, is void against purchasers, including mortgagees, who become such subsequently to its date (and, à fortiori, if they were so already previously to its date); but such a settlement is good against subsequent judgment creditors (Beavan v. Earl of Oxford, 6 De G. M. & G. 507), and as against the settlor himself and volunteers claiming under him that are subsequent in date, and even (it has been held) against a bona fide purchaser for value from such latter volunteers (Doe v. Rusham, 17 Q. B. 723; Lewis v. Rees, 3 K. & J. 132; Richards v. Lewis, 11 C. B. 1035). On the other hand, a voluntary settlement, being of personal estate, can in no case be fraudulent within the meaning of, not being in fact comprised within, the stat. 27 Eliz. c. 4, and TRUSTS-continued. therefore is good against all the world, so far, at any rate, as that statute is concerned (Jones v. Croucher, 1 S. & S. 315); but it is clear it may be fraudulent either within the meaning of the 13 Eliz. c. 5, or within the meaning and intention of the Common Law, in either of which cases it would have no validity excepting as against the settlor himself, volunteers claiming under him, and, semble, purchasers under such volunteers (see title FRAUDULENT GIFTS). On the other hand, a settlement for value, whether of lands or goods, not being fraudulent within the meaning of the Common Law, is good against all the world. Lastly, (c) Under the Bankruptcy Act, 1869, 8. 91, settlements that are post-nuptial are ipso facto void on the ground of fraud, if the settlor becomes bankrupt within two years from their date, and are also void upon the like event happening within ten years until proof of solvency at their date, the property settled being the bankrupt's in his own right, and not what he takes in right of his wife. Trusts for Creditors.-Deeds of trust in favour of creditors, although they contain no express power of revocation, are (unlike other deeds, and unlike even voluntary deeds) revocable by the settlor, as a general rule (Garrard v. Lord Lauderdate, 3 Sim. 1), they being arrangements for the debtor's own convenience merely, and not investing his creditors with the character of cestuis que trust. Made one day, they may be unmade the next, upon a happier thought. Nevertheless, such deeds become irrevocable in certain cases, being principally two, namely,— (a.) Where the creditors, or one or more of them, are parties to the deed, and execute it, it becomes irrevocable as to the executing creditor or creditors (Mackinnon v. Stewart, 1 Sim. (N.S.) 88); and (b.) Where the deed is communicated to non-executing creditors, and they, or one or more of them, after such communication, relying on the deed, have altered their positions or position relatively to the debtor, e.g., by abandoning some compulsory proceeding which they had commenced against him for the recovery of their debts (Acton v. Woodgate, 2 My. & K. 495; Field v. Lord Donoughmore, 1 Dru. & War. 227); but mere communication, not followed by such an alteration of position, does not make the deed irrevocable. Biron v. Mount, 24 Beav. 649. Trusts in Joint Tenancies.-Equity acting upon the maxim that equality is equity, although it is bound to recognise the joint tenancies which the rules of law create, nevertheless seizes upon the TRUSTS-continued. very slightest grounds of difference, distinction, or inequality for neutralising in effect the incident of survivorship which attaches to joint tenancies, on the ground that such incident is unequal or inequi table as between the tenants. And ac cordingly, in the case of MORTGAGES, although the mortgagees are as a general (and, indeed, almost invariable) rule made joint tenants at law, and the legal estate accordingly survives to the survivor wholly, yet Equity, as well (a) where the amourts advanced by the respective mortgages are equal, as also () where they are us equal, breaks through the rule of Lawto this extent, that it secures to the deceased his due proportion of the mortgage debt, and for that purpose, and because it finds the legal estate already vested wholly in the survivor, declares the latter a trustee (1) for the deceased, to the extent of his proportion, and (2) for himself, as to the residue of the money lent. And again, in the case of PURCHASES, although the pur chasers are made joint tenants, and ne cessarily, therefore, are to remain so at Law, so that the legal estate survives to the survivor wholly, yet Equity (c) where the amounts advanced by the respective pur chasers are unequal, breaks through the rule of Law to this extent, that it secures to the deceased his due proportion of the purchased land, and for that purpose, and because it finds the legal estate already vested wholly in the survivor, declares the latter a trustee (1) for the deceased to the extent of his proportion, and (2) for himself, as to the residue of the pur chased land: but (d) where the amounts advanced by the respective purchasers are equal, Equity has no ground for breaking through the rule of Law, and in that case therefore (being one case only out of four) permits the incident of survivorship at Law to have its way in Equity as well. Ser also SURVIVORSHIPS. Charitable Trusts.-These are trusts in favour of hospitals, the people, and such like. As compared with trusts in favour of individuals, trusts in favour of charities are treated by the Court of Chancery as being, (1.) In some respects on a level with individuals; (2.) In other respects with more favour than individuals; and (3.) In one respect with less favour than individuals. Thus (1.) They are treated on a level with individuals in the two following re spects (a.) The Court of Chancery will supply the want of a trustee or executor in the case of a gift to a charity, just as it will |