TRUSTS-continued.

do (at any rate, since the Trustee Act, 1850, and Trustee Extension Act, 1852) in the case of a gift to an individual (Mills v. Farmer, 1 Mer. 55);

(b.) The Court of Chancery, equally with the Courts of Law, requires charitable bodies to bring their actions and suits within the times limited for the same by the Statute of Limitations (3 & 4 Will. 4, c. 27); Att.-Gen. v. Christ's Hospital (3 My. & K. 344), being no longer law. Again,

(2.) Charities are treated with more favour than individuals in the two following respects:

(a.) Where a general intention to give to charities is evidenced by the particular intention which is expressed in the instrument of gift, and that particular intention fails from any cause, the Court of Chancery will find some other particular_mode of making the gift effectual for a charity (Moggridge v. Thackwell, 7 Ves. 69, see title CY-PRES); whereas in the case of individuals the trust in such a case would be void for want of one of the three requisite CERTAINTIES.

(b.) The Court of Chancery will also supply in favour of a charity defects in conveyances, not being defects which any statute has rendered fatal to the gift (Sayer v. Sayer, 7 Hare, 377); but no such assistance would be rendered to individuals (see sub-title VOLUNTARY TRUSTS); lastly,

(3.) Charities are less favoured than individuals in this respect, that the Court will not marshal assets in favour of charities, although it will do so in the case of individuals. Williams v. Kershaw, 1 Keen, 274, n.

Vendor's Lien.-Where the vendor conveys the estate sold before receiving the whole or some part of the purchase-money thereof, he has a lien, i.e., hold, on the estate for the unpaid purchase-money or unpaid part thereof; and conversely, the purchaser or vendee also has a lien on the estate contracted to be sold for the purchase-money or the part thereof where he has already paid, or prematurely paid, the same, by way of deposit or otherwise, and the contract for any reason not imputable to himself afterwards goes off. Mackreth v. Symmons, 15 Ves. 329; Wythes v. Lee, 3 Drew. 396.

Either the vendor or the vendee may, however, by his own negligence, or by being party to a fraud, prejudice or lose the priority of his lien over subsequent charges or claims (Rice v. Rice, 2 Drew. 73). Moreover, he will be taken to have abandoned his lien in the following cases:

(1.) Where a bond, bill, promissory note, or covenant, is taken expressly in lieu of, or in substitution for, the unpaid purchase

TRUSTS-continued.

money (Buckland v. Pocknell, 13 Sim. 406; Parrott v. Sweetland, 3 My. & K. 655);

(2.) Where any security (not of a personal nature), e g., either a long annuity (Nairn v. Prowse, 6 Ves. 752), or a mortgage either of the same (Bond v. Kent, 2 Vern. 281), or of a distinct estate (Cowell v. Simpson, 16 Ves. 278), is taken for the unpaid part of the purchase-money.

But the lien will remain where any security which is of a personal nature is taken generally, that is to say, is not taken in express substitution for the purchase-money. Collins v. Collins, 31 Beav.

346.

All these distinctions depend upon the simple principle, that the lien being a real right, and therefore higher in quality than a personal right, is not lost or merged in the subordinate right, unless the parties have so expressly agreed.

Trustee's Renewal of Lease.-In the case of a renewable lease which is held in trust by A. for B., upon the time for renewal coming round, if A. renews the lease in his own name, and expressly or impliedly for his own benefit, he is nevertheless held by the Court of Chancery to be a trustee for B. of the renewed lease, and it does not matter that the landlord, for reasons of his own, expressly and persistently refused to grant a renewal to B., or in favour of B. (Keech v. Sandford, 1 W. & T. L. C. 39), the trustee being the only person in the world who, in such a case, is incapacitated from taking a renewal in his own name. The like stringent rule applies in the case of one co-partner taking a renewal behind the backs of his co-partners (Featherstonhaugh v. Fenwick, 17 Ves. 311); also, of an executor de son tort doing the like (Mulrany v. Dillon, 1 Ball. & B. 409); also, of a tenant for life doing the like (Rowe v. Chichester, Amb. 211); also of a joint tenant doing the like (Palmer v. Young, 1 Vern. 276); also of a mortgagee (Rushworth's Case, Freem. 12), or mortgagor (Smith v. Chichester, 1 C. & L. 486; Seabourne v. Powell, 2 Vern. 11) doing the like.

Permanent Improvements by Tenant.

TRUSTS-continued.

Where a tenant for life (but not also where a tenant in tail, or a tenant in fee simple) expends money in finishing the unfinished buildings of the testator or settlor, or in doing other works of the like permanent and beneficial nature, being also works which are necessary to be done, and which will not wait, then he is entitled to be repaid a proportion of those expenses, as for unexhausted improvements (Hibbert v. Cooke, 1 S. & S. 552; Dent v. Dent, 30 Beav. 363). But, excepting in the two cases before mentioned, he is not entitled to any such repayment, however beneficial or meritorious the result may be to the estate generally (Dent v. Dent, supra); and in all cases, therefore, other than the two before mentioned, it is advisable for him, on the one hand, if the improvements are of an agricultural nature, to borrow money for the purpose under the Improvement of Land Act, 1864 (27 & 28 Vict. c. 114), or, on the other hand, if the improvements are of a residential nature, to borrow the necessary money under the Limited Owners' Residences Act, 1870 (33 & 34 Vict. c. 56).

Heir a Trustee.-When a person has a mortgage in fee which he has not foreclosed, and dies intestate, the legal estate in the mortgaged property descends to his heir or real representative; but the administrators of the deceased, or his personal representatives, are entitled to the beneficial ownership of the moneys due on the mortgage, and to the security for the same; and, accordingly, the Court of Chancery, finding the legal estate in the heir, declares him a trustee for them to the extent of the moneys secured by the mortgage. Thornborough v. Baker, 1 Ch.

Ca. 28.

See also next title.

TRUSTS RESULTING. Either, (1.) From purchase iu name of stranger;

or

(2.) From incomplete disposition of equitable estate; or

(3.) From the failure of equitable conversions.

(1.) In the case of purchasers, whether of land or of goods, the conveyance or assignment of which is taken or made in the name of a party other than the purchaser himself or person who pays the money, the GENERAL RULE is, that the grantee or assignee in whom the legal estate is so vested holds the property in trust for the purchaser and for the benefit of the purchaser only. This is merely one form of the old rule that a feoffee without consideration was a trustee for the feoffor. But the EXCEPTIONS to this rule are more important than the rule itself, and are

TRUSTS RESULTING―continued. generally summed up under the head Advancement, which title see.

(2.) In the case of a conveyance or assignment, or devise or bequest of lands or of personal estate to A. in fee simple, or other estate, upon trust for certain estates and purposes which do not exhaust the entire fee simple or other estate, it is a general rule and without any exceptions, that all that part of the estate which is not exhausted by the trusts declared results, in the case of a settlement to the settlor, and in the case of a will to the heir or real representatives of the testator if the estate is in realty, and to the executors or personal representatives of the testator if the estate is in personalty (Parnell v. Hingston, 3 Sm. & Giff. 344). But in applying this rule it is necessary to distinguish conveyances or assignments, or devises or bequests upon trust, from conveyances or assignments, or devises or bequests, which are merely subject to or charged with certain limited beneficial interests, the grantee or devisee, assignee or legatee, in the latter case taking the entire residue for his own benefit after satisfying the charge. King v. Denison, 1 Ves. & B. 272.

(3.) When money is directed to be turned into land, or land is directed to be turned into money, for certain purposes or upon certain trusts, the property is in Equity considered as already, from the date of the direction taking effect, converted into that into which it is directed to be converted (see title CONVERSION); in other words, the money as being notionally land, and the land as being notionally money. But this equitable conversion is subject to the following limitation, that is to say, the direction extends no further than the trusts or purposes for the sake of which it is given, or such of the same trusts or purposes as are capable of taking effect, and as also take effect, require it to extend; and accordingly the margin or surplus of the property over and above what is required for those trusts or purposes results in the case of a deed to the settlor, and in the case of a will to the next of kin, so far as the direction for conversion concerned personal estate, and to the heir-at-law so far as it concerned real estate.

TUBMAN: See title PRE-AUDIENCE.

TURBARY (from turba, an old Latin word for turf). Turbary, or common of turbary, is the right or liberty of digging turf upon another man's ground. Kitchin, 94. See also title COMMON.

TURNPIKE ROADS. These are roads on which parties have by law a right to erect gates and bars, for the purpose of

TURNPIKE ROADS-continued. taking toll, and of refusing the permission to pass along them to all persons who refuse to pay (Northam Bridge and Roads Co. v. London and Southampton Ry. Co., 6 M. & W. 428.) So in the Railways Clauses Act, 1845 (8 & 9 Vict. c. 20), s. 50, a turnpike road means a road which is repaired by tolls payable by passengers for the use of the road (Reg. v. East and West India Docks and Birmingham Junction Ry. Co., 2 El. & Bl. 466.) The law of turnpike roads is partly regulated by statute, the Act 3 Geo. 4, c. 126, being the General Turnpike Act, and having been amended by subsequent Acts. A turnpike-road may become a highway (see that title), 30 & 31 Vict. c. 121. A mandamus does not lie to compel the repair of a turnpike-road (Reg. v. Oxford and Witney Roads (Trustees), 12 A. & E. 427); but the proper proceeding is to summon in the first instance the treasurer, surveyor, or other officer of the turnpike-road trust before the justices at special sessions, under the stat. 5 & 6 Will. 4, c. 50, s. 94.

TUTEUR OFFICIEUX. In French Law, a person over fifty years of age may be appointed a tutor of this sort to a child over fifteen years of age, with the consent of the parents of such child, or in their default the conseil de famille. The duties which such a tutor becomes subject to are analogous to those in English Law of a person who puts himself in loco parentis to any one.

TUTEUR SUBROGÉ. In French Law, in the case of an infant under guardianship, a second guardian is appointed to him, the duties of the latter (who is called the subrogé tuteur) only arising where the interests of the infant and his principal guardian are in conflict. Code Nap. 420.

U.

UMPIRAGE. When matters in dispute are submitted to two or more arbitrators and they do not agree in their decision, it is usual for another person to be called in as umpire, to whose sole judgment it is then referred; the word "umpirage," in reference to an umpire, is the same as the word "award" in reference to arbitrators; but award is commonly applied to the decision of the umpire also,

See title ARBITRATION and AWARD. UNDER-CHAMBERLAIN OF THE EXCHEQUER. An officer in the Exchequer who cleared the tallies written by the clerk of the tallies, and read the same, that the clerk of the pell and the comptroller might see that their entries were

UNDER-CHAMBERLAIN OF THE EX-
CHEQUER-continued.

true. He also made searches for all records in the treasury, and had the custody of Domesday Book. There were two officers of this name, but their office is now abolished. Cowel.

UNDERLEASE. Is a lease granted by one who himself is only a lessee of the premises which he underlets. Thus, if A. grants a lease of land to B. for twenty-one years, and B. afterwards grants a lease of the same land to C. for fourteen years, here C. would be termed the underlessee, and the lease, by virtue of which C. held the land, an underlease. In this respect an underlease differs from an assignment, which is a transfer of the entire term, or residue thereof. The underlessee has no privity with the original lessor, and is liable for rent to his immediate lessor only. But it is different with the assignee.

Is

UNIFORMITY OF PROCESS ACT. the title commonly given to the statute 2 Will 4, c. 39, by which a more simple and uniform course of proceeding for the commencement of personal actions was established. Until the passing of that statute, the practice or forms of proceeding in the three superior Courts at Westminster differed greatly from each other. The improvements introduced by this statute were founded on the report of the Common Law Commissioners, a body of distinguished men in the legal profession, appointed to consider the effects of the then existing system, with a view to its correction. In some important particulars, however, the enactments of the stat. 2 Will. 4, c. 39, have been again altered by the more recent Act of 1 & 2 Vict. c. 110; as, for instance, under the Act of Will. 4 an action might be commenced either by a writ of summons or by a capias, whereas under the subsequent statute, which is still in force, it can only be commenced by a writ of summons. More sweeping enactments have been made by the C. L. P. Act, 1852.

See title PROCEDURE.

Joint posses

UNITY OF POSSESSION. sion of two rights by several titles. As if I take a lease of land from a person at a certain rent, and afterwards I buy the feesimple of such land; by this I acquire unity of possession, by which the lease is extinguished; because I, who before occupied the premises only in consideration of rent, do by the purchase of the fee simple become lord of the same. Cowel.

UNLAWFUL ASSEMBLY: See title RIOT.

UPPER BENCH, COURT OF. The Court of Queen's Bench was so called during the

UPPER BENCH, COURT OF-contd. interval between 1649 and 1660, the period of the Commonwealth.

USAGE. This word as used in English Law differs from custom and prescription, in that no man may claim a rent, common, or other inheritance by usage, though he may by prescription. Moreover, a usage is local in all cases, and must be proved; whereas a custom is frequently general, and as such is noticed without proof. Usage, in French Law is the usus of Roman Law, and corresponds very nearly to the tenancy at will or on sufferance of English Law.

USANCE. The time which, by the usage of different countries between which bills of exchange are drawn, is appointed for their payment. This is a calendar month, as from the 20th of May to the 20th of June, and what is termed a double usance consists of two such months. Chitty on Bills.

USER, Is the act of using or enjoying any profit or benefit to be taken from or upon the land, or any easement to be enjoyed upon or over any land or water. And in law the effect of such user (if continued for a period sufficiently long, and under circumstances which indicate the exercise of a right on the part of the person so using the land), is to establish a prescriptive claim ever after to enjoy the same profit or easement. Co. Litt. 115 a; and see title PRESCRIPTION.

USES. The word "use," in its original legal application, denoted simply the benefit or beneficial enjoyment of land. The invention of uses is commonly attributed to the ecclesiastics; and they having been the early lawyers, that origin is probable. The system of uses was attended with numerous advantages to the true owners of the land,-the use not being subject to escheat or to forfeiture, and being devisable by will, and transferable without livery of seisin; but like other systems it was made the channel of numerous abuses, lands being conveyed by means of it to persons and in ways forbidden by the words-or, at all events, by the policy-of the Statute Law. Thus, by means of the use, lands came largely into mortmain to spiritual corporations, contrary to the Statutes of Mortmain (7 Edw. 1; 15 Ric. 2, c. 5); and, ultimately, after some Acts of a more imperfect character, the Statute of Uses (27 Hen. 8, c. 10) was passed, which in effect enacted that the use should be the land, and that where the use was there the land or legal estate should be and should be deemed to be. In consequence of this statute the word " use departed with its original signification,

39

USES-continued.

and became equivalent to seisin or legal estate.

By the decision in Tyrrell's Case (4 & 5 Ph. & M.) the Courts of Law held that the Statute of Uses intended the first use only, and that as soon as it had executed that use and made it the legal estate, it was exhausted. But the Courts of Chancery, while adopting the rule of Law so far, went further, and gave the benefit or beneficial enjoyment, as before, to the person intended to benefit, calling the first usee the legal estate man, or trustee merely, and the proper beneficiary, being the second or last usee, the cestui que trust and true owner in Equity.

By the joint operation of the Statute of Uses and the decision in Tyrrell's Case two lines of estate have become well established in Law,-namely, (1) the legal estate in the trustee, which retains all, or nearly all, its ancient incidents; and (2) the equitable estate in the cestui que trust, which has received incidents analogous to those of the legal estate, upon the maxim, Equity follows the Law.

By the means of these uses new facilities have been furnished for the conveyance of property.

See title CONVEYANCES.

USES, CHARITABLE: See titles CHARITIES; CHARITABLE USES AND TRUSTS.

USES, SUPERSTITIOUS: See title SUPERSTITIOUS USES.

USHER (from the Fr. huissier, a doorkeeper of a Court). A subordinate officer in the Courts of Law. The chief usher in the Court of King's Bench used to hold his office by letters patent under the great seal for two lives, and to execute it by three deputies. But see now 15 & 16 Vict. c. 73, ss. 16-21, which enacts that the ushers of the Superior Courts shall be appointed by the Chief Justices and Chief Baron respectively, and prescribes their salaries and tenure of office. There are also ushers in the Courts of Chancery, appointed in like manner by the judges of those Courts.

USHER OF THE BLACK ROD. The Gentleman Usher of the Black Rod is an officer of the House of Lords appointed by letters patent from the Crown. His duties are, by himself or deputy, to desire the attendance of the Commons in the House of Peers when the royal assent is given to bills either by the Queen in person or by commission, to execute orders for the commitment of persons guilty of breach of privilege, and also to assist in the introduction of peers when they take the oaths and their seats.

USUCAPIO. A term of Roman Law used to denote a mode of acquisition by the civil-i.e., old strict, law. It is, however, sometimes used as interchangeable with longi temporis possessio. It corresponds very nearly to our term prescription or limitation, which by the stats. 3 & 4 Will. 4, c. 27 (as to corporeal hereditaments), and 2 & 3 Will. 4, c. 71 (as to incorporeal hereditaments) confers a positive (although merely possessory) title on the holder. But the prescription of Roman Law differed from that of the English Law, not only in its times (which are of less importance), but also in this great and peculiar feature, that no malâ fide possessor (i.e., person in possession knowingly of the property of another) could by however long a period acquire title by possession merely, the two never-failing requisites not only to usucapio, but also to longi temporis possessio, being justa causa (i.e., title) and bona fides (ie., ignorance). The term usucapio is sometimes, but erroneously, written usucaptio. In Roman Law, re-acquisition by usucapio was called USURECEPTIO.

USUFRUCT (usufructus). An usufruct has been defined to be that real right in another's property which entitles a party to reap all the fruits of the thing, and in general to have the whole use and enjoyment of it, as far as is practicable, without injury to its substance (salva rerum substantia). He who is so entitled to enjoy the fruits of another's property is termed the usufructuary, in contradistinction to the actual proprietor of the thing (Just. Inst. ii. 4). The usufructuary was invariably entitled for life, and for no less period; he, therefore, corresponds to our tenant for life.

USUFRUIT. This is, in French Law, the usufruct of English and Roman Law.

USURA MARITIMA: See title FENUS NAUTICUM.

USURIOUS CONTRACT: See title USURY.

An

USURPATION OF ADVOWSON. injury which consists in the absolute ouster or dispossession of the patron, and which happens when a stranger who has no right presents a clerk, and the latter is thereupon admitted and instituted.

USURPATION OF FRANCHISES, or OFFICES. The unjustly claiming or usurping any office, franchise, or liberty.

USURY (usura.) An unlawful contract on the loan of money to receive the same again with exorbitant increase; that is, not only to receive the principal sum again, but also an exorbitant interest by way of compensation for the use of such principal sum. All restrictions upon the rate of

USURY-continued.

interest were, however, abolished by stat. 17 & 18 Vict. c. 90.

UTTER, TO. In law signifies to put in circulation, to offer or tender to another man, and is used in reference to forged instruments or counterfeit coin. Thus, by stat. 11 Geo. 4 & 1 Will. 4, c. 66, it is enacted that the forging or uttering of any Exchequer bill, Bank of England note, bill of exchange, deed, transfer of stock, &c., &c., knowing it to be forged, and with the intent to defraud, shall be felony; and by 2 Will. 4, c. 34, s. 7, it is provided that "if any person shall tender, utter, or put off any false or counterfeit gold or silver coin, knowing the same to be counterfeit, he shall be guilty of a misdemeanor, and be imprisoned for any term not exceeding a year. See Rex v. Jones, 9 C. & P. 761.

UTTER BAR (or Outer Bar) is the bar at which those barristers, usually junior men, practise who have not yet been raised to the dignity of queen's counsel. These junior barristers are said to plead without the bar, while those of the higher rank are admitted to seats within the bar, and address the Court or a jury from a place reserved for them and divided off by a bar. See title UTTER BARRISTERS.

UTTER BARRISTERS. Barristers-atlaw, in general, who plead without the bar. They are called utter barristers, i.e., pleaders without the bar, to distinguish them from the benchers, or those who have been readers, and are sometimes admitted to plead within the bar, the same as king's and queen's counsel are. Cowel.

V.

VACATION. The interval between each term is termed the vacation, that is, between the end of one term and the beginning of the next. These intervals of a cessation of business are retained under the Judicature Act, 1873, but are differently reckoned, the distinction of terms having been abolished by that Act, in name at least.

VADIUM MORTUUM (dead pledge): See next title.

VADIUM VIVUM (a living pledge). When a man borrows a sum of money of another (suppose £200), and grants him an estate, as of £20 per annum, to hold till the rents and profits shall repay the sum so borrowed; in this case the land or pledge is said to be living; it works off, i.e., repays and survives, the debt, and immediately on the discharge of that reverts back to the borrower. It is called a ricum