488 Analytical Digest of Cases: Scotch Appeals. conflict, with the interests of those whom he is bound by fiduciary duty to protect. So strictly is this principle adhered to, that no question is allowed to be raised as to the fairness or unfairness of the transaction; for it is enough that the parties interested object. It may be that the terms on which a trustee has attempted to deal with the trust estate, are as good as could have been obtained from any other quarter. They may even be better. But so inflexible is the rule that no inquiry into that matter is permitted. It makes no difference whether the contract relates to real estate or personalty, or mercantile transactions; the disability arising, not from the subject-matter of the contract, but from the fiduciary character of the contracting party. The law of Scotland and the law of England are the same upon these points; both coming from the Roman Law, itself bottomed in the plainest maxims of good sense and equity. The rules which govern fiduciary relations are equitable rules, unknown to the English Courts of Common Law. Consequently, in a case properly determinable by those equitable rules, the decision of a Court of Common Law, when opposed to them, must be disregarded. The great case of York Buildings' Company v. Mackenzie, decided by the House in 1795, under the advice of Lord Thurlow and Lord Loughborough, commented on and expounded. Remarks of Lord Brougham as to the inconvenience occasioned in England, by the severance of legal and equitable jurisdiction. His lordship's regret that the English are still without the doctrine of "bona fide consumptio et perceptio." Aberdeen Railway Company v. Blaikie, 1 Macq. 461. UNIVERSITY OF EDINBURGH. 2. Whether it may be private.—Presumption of enjoyment.-Effect of non-user.-Although a public way may pass through private property, it must have at each end a public terminus. The terminus of a public way may be suffi cient, although it have not, in the ordinary sense, an exit. It may be a cul-de-sac. But a mere private place, not admitting of a passage through or beyond it, cannot form the terminus of a public way. Upon evidence satisfactory and uncontradicted, showing a public right of way as far back as the memory of living witnesses can be expected to extend, the jury may presume a previous enjoyment corresponding with that evidence. Non-user or obstruction of a public right of way may be evidence for the jury that the right of way does not exist, but whether it can be evidence to show that the right has been lost, quære? Young v. Cuthbertson, 1 Macq. 455. 66 YOUNGER CHILDREN." Supremacy of town council.-Power to reDeed of entail. Power or faculty. — The gulate the studies for degrees.-The university word "younger" applied to classes of children or college of Edinburgh stands on an entirely in a settlement, is construed to mean posterior, different footing from that of the other collegiate institutions of Scotland. It is not an in- or lower, in point of limitation. Thus, where there is a provision for younger children, dependent establishment, but is subject to the superintendence and dominion of the Town daughters will be included, though older than the son taking the estate. Council of Edinburgh. It is, in fact, the college of the town; and the town council have the government of it. Hence the town council can regulate the character, course, and limits of study in the college, and they can rescind at their pleasure any rules or orders made by the Senatus Aca demicus. fact meant the unprovided for branches of a By the expression "younger children " is in family. A deed of entail contained a power to make child who should take the estate; but one of provision for younger children other than the the tenants in tail had only a life interest given In particular, the town council have the to him by the entail-the estate, on his death, power of determining the qualification for de- passing away from his children to another set of heirs :-Held, that elder and younger were grees. And they may even declare that extra-correlative terms; and that, as none of his mural teaching by qualified instructors shall, children could take the estate, so none of them as part of the curriculum, be equivalent to colcould be objects of the power. legiate instruction under the professors. Semble, that the Aberdeen Act, 5 Geo. 4, C. 87, could not be applied to such a case; for the power conferred by it to make provision for younger children implies that the elder takes Dickson v. Dickson, 1 Macq. 729. Semble, therefore, that although the learned body can alone grant the degree, it is the civic Dody that must fix the required qualification. University of Edinburgh v. Lord Provost, &c., the estate. of Edinburgh, 1 Macq. 485. The Legal Observer, AND SOLICITORS' JOURNAL wwww -"Still attorneyed at your service."-Shakespeare. SATURDAY, APRIL 28, 1855. THE EXECUTOR AND TRUSTEE ITS UNSUCCESSFUL PROGRESS. projects to the scheme which bears the name of The Executor and Trustee Company," we find from statements, to which we have recently had access, that it was proposed to raise a large capital in shares of 201. each, WE some time ago had occasion to notice amounting to a million of money, the prelimiseveral objections to the system of private nary deposit, on which was to be only two legislation for personal purposes, apart from, shillings per share. Supposing all the 50,000 or in opposition to, the general interest of shares to be taken, the 28. deposit would the community. It may be right and just have amounted to 5,000l.,-no large sum that a certain number of persons subscribing to start a great company, under the trusa given sum, in certain proportions, may be teeship or management of Noblemen, Bapermitted to embark in an enterprise for their ronets, Members of Parliament, Queen's joint advantage; and that the Crown or the Counsel, Barristers-at-Law, and AttorneysLegislature may authorise the association to at-Law! sue and be sued in the corporate name. In Instead, however, of a subscription for this way, there may be, amongst the several | 50,000 shares, it appears that so late as members, a liability limited to the extent of March last, only 12,368 have been taken, the capital subscribed by each, and the and the sum received in lieu of 5,0007. is joint-stock be alone responsible for the con- only 1,2367. 168. tracts into which the association may enter. So far the powers of Incorporation may be useful. The advertisements, rent of offices and furniture, and of the general and parliamentary expenses, amount to 1,7107. 128. 7d., and But it is a very different thing to alter there was consequently a deficiency of the law of the land for the advantage, not 4737. 16s. 7d. The original and the new even of a class of joint-stock companies directors have generously advanced a sum established on certain well considered prin- beyond the payment on their shares, and, ciples, but to confer powers on some indi- with a small additional sale of shares, the vidual company which are withheld from sum of 1,000l. has been raised to meet the rest of the public. the above deficiency of 4731. odd, and It seems, in the history of private Legis- to "carry on the concern" in the present lation, if an ingenious projector can asso- Session. 1854. Receipts. £ s. d. 1,236 16 0 ciate with himself an able solicitor, and The items of the account are thus stated jointly can induce a sufficient number of re- in arithmetical order :— spectable persons to act as Committee-men, Directors, or "Executive Counsel," it is not difficult, such is the taste for speculation, -to attract or decoy a considerable number of the credulous public to subscribe for shares, especially when the first call is of small amount. Applying this brief notice of joint-stock 12,368 shares at 2s. per share 473 16 7 £1710 12 7 D D The Executor and Trustee Joint-Stock Project. Advances made by 22 original directors, beyond the payment on their shares Payment on 100 additional shares at 28. per share Subscriptions by new directors, about 1854. 715 0 10 0 0 0 £ s. d. 49,402,3917. of personal estate only. The Succession Duties' Act, it is sanguinely computed, will greatly augment the sums liable to such payments. And then it is modestly concluded, that if "one-fortiet. of this amount of personal estate should 275 0 0 pass through the hands of the society, and a similar amount in trusteeships under set 0 tlements and deeds, and one per cent. wer charged by the Society, an annual sum of 25,000/ would be produced." £1,000 0 409 15 0 35 12 6 427 15 1 750 0 0 Adding to this moderate reckoning the 87 10 0 dividends on the paid-up capital (and deducting the expenses of the establishment) we are assured "there would remain more than sufficient to give a dividend of ten pe cent. to the shareholders, on a paid-up co £1,710 12 7 pital of 250,000l." Is it not marvellous, after this statement, that only 12,000 shares out of 50,000, at the small call of 28, pai share, should have been subscribed for; but so it is. 473 16 7 £1,000 0 0 We understand, it is stated by the Executive Council that, in accordance with the provisions of the Joint-Stock Companies' Act, no further deposit will be required, in the first instance, than 2s. per share. The projectors anticipate that, after the passing of the Act, a call of 21. per share will then be made; and they assure the shareholders that future instalments will be regulated by the increase of business, by the advancing prosperity of the society, and the necessity of a corresponding increase of the guarantee fund. It is intimated that a small charge only will be made upon the property administered by the company, as a remuneration for the security it affords. One per cent, it is calculated, will be amply sufficient for this purpose! We are rather flatteringly told that the capital paid up, with the exception of the deposit of 28. per share for preliminary expenses, will, in order to form a guarantee fund, be immediately invested in consols, and the shareholders will, from the commencement, receive dividends on the sums so invested, in addition to their share of the profits arising from the business transacted by the society. Then comes an estimate of a large sum as the result of the successful establishment of the company. We are told as the basis of the calculation, that in 1851, legacy duty in the United Kingdom was paid on 'It will be seen, on applying to the abstract of accounts, that a balance of about 5261. 3s. 56 still remains nominally to the credit of the conpany. This balance is derived from extra sums consider that it will, in all probability, affo contributed by the directors; and the counc sufficient funds to meet the necessary e penses. They, however, wish it to be clear · understood, that they have no claim upon ti shareholders, until the Act of Incorporatio: shall be obtained." The executive council ascribe the reje tion of their Bill last Session, in some mes sure, to the unfavourable effect which the South Sea Company's Bill had upon tha of the Executor and Trustee Company, and they state that "The aim of the South Sea Company's B was to terminate the affairs of that company. still to maintain its existence, and divert i so far as regarded its original purpose: be capital to a new object, namely, the underta! ing of trusts; to which many of the share holders had the greatest objection. The Sout Sea Company having now ceased to exist; th Executor and Trustee Company's Bill will future rest entirely upon its own merits." This, we think, is very ungenerous a ungrateful treatment of the South Sea Co pany, who valiantly joined in the conflic. last year, and certainly enabled the pr moters of the scheme to make a more fo midable appeal to Parliament than can no be presented. The sanction, to a certain extent, given t the principle of the Bill by some membe of the then Government, may be ascribed the The Executor and Trustee Joint-Stock Project.-Testamentary Jurisdiction Bill. to the facilities afforded by the South Sea 491 or the distribution of the estates and effects of deceased persons, or any testamentary cause or matter, or any matter arising out of or connected with the grant of administration, shall belong to or be exercised by any such Court or person as aforesaid; s. 3 All jurisdiction, power, and authority in relation to the granting probate of wills and We are informed that the executive letters of administration of the effects of decouncil have been unwilling to abandon the ceased persons now vested in or which might undertaking without a further effort. They, be exercised by any Court or person in England or Wales, together with complete jurishowever, acknowledge the secession of some diction for the purpose of determining all of their members, who think that the ap-questions and matters relating to matters plication to Parliament should be indefinitely testamentary, shall belong to and be vested postponed; but the majority of (though not in her Majesty, and shall be exercised in the all) the directors are of opinion, that the name of her Majesty in a Court to be called abandonment of the undertaking now would "The Testamentary Court;" s. 4. be a waste of the money which has been al- The Testamentary Court shall, for the purready expended, and would throw into the pose of exercising the jurisdiction, power, and hands of others the reward they anticipate authority hereby vested in the same Court, have all the jurisdiction, power, and authority s justly due to the projectors of the plan; of the High Court of Chancery by Statute or ad, therefore, it appears they are deter- otherwise now exercisable by the Court of nined to try one more experiment. As Chancery with respect to matters within its they have advanced 1,000l. from their own jurisdiction, and also all powers and authorunds, they may claim the privilege of con- rities by Statute or otherwise now exerciseable tinuing the agitation; but it must be ad- by the Prerogative Court or any other Court, nitted that the circumstances which we or body politic or corporate, or any person Have thus extracted from the prospectus and whomsoever, exercising or entitled to exercise report issued by the promoters themselves, jurisdiction in relation to matters testamentary ; amply prove the inexpediency and impropriety of this mode of private legislation, whereby it is attempted to alter the general law for the profit and advantage of a trading company. TESTAMENTARY JURISDICTION BILL. JURISDICTION OF THE COURT AND COURSE OF PROCEEDING AND PRACTICE. HAVING set forth the clauses relating to the Judges, registrars, and other officers, and the provisions affecting the practitioners of the Court, we proceed now to lay before our readers the proposed enactments relating to che Jurisdiction and Practice of the Court. Except where otherwise provided, the Act will commence on the 1st January, 1856, or such other day as her Majesty by order of Council may appoint; s. 1. Interpretation clause; s. 2. Constitution of the Court. The jurisdiction and authority of all ecclesiastical, royal peculiar, peculiar, manorial, and other Courts and persons in England and Wales, now having jurisdiction, power, or authority to grant or revoke probates of wills or letters of administration of the effects of deceased persons, shall absolutely cease and determine, and no jurisdiction or authority in relation to legacies, inventories, and accounts, s. 5. The practice and proceedings in the Court, except where otherwise directed by this Act, or by any general order of the Lord Chancellor, in pursuance of the provisions of this Act, shall be similar to the practice and proceedings of the Court of Chancery; s. 6. The Court shall hold its sittings at such place or places in London or Middlesex, or elsewhere as her Majesty in Council shall from time to time appoint; s. 7. The Lord Chancellor shall direct a proper seal or proper seals to be made for the Court, and it shall be lawful for him to direct the same to be broken, altered, and renewed, at his discretion; s. 17. The principal office of the Court, to be called the Testamentary Office, shall be established in such place as her Majesty in Council shall Testamentary Office shall be appointed by her from time to time appoint; and, until another Majesty in Council, the present public registry of the Prerogative Court shall be used as the Testamentary Office; s. 18. Every order of the Court, when drawn up by the registrar, shall be entered by the registrar in a proper book to be provided for that purpose, and such registrar shall furnish to every person requiring the same office copies of such orders or of such part thereof as may be required, which copies shall be signed by one of such registrars, and sealed or stamped with the seal of the Court; and every such office copy, purporting to be signed, and sealed or stamped with such seal, shall at all times, and on behalf of all persons, and whether for the purposes of this Act or otherwise, be ad DD 2 492 Testamentary Jurisdiction Bill. mitted as evidence of the order of which it through the General Post Office to the prinpurports to be a copy, without any further cipal registrar; s. 37. proof; s. 32. The principal registrar shall cause printed forms to be prepared and circulated, containing directions to Commissioners for taking oaths in the Court as to the inquiries they are to make of persons applying for probate or administration, and printed forms of affidavits, applicable as far as circumstances will permit to the different cases likely to arise, in order that such printed forms of affidavit may be filled up and signed, and sworn to by the applicant; s. 38. When any order of the Court relates to the payment, transfer, or carrying over of any cash, stock, funds, annuities, securities, or other effects, to or into the name of the AccountantGeneral of the Court of Chancery, to the credit of any cause or matter depending in the Testamentary Court, or other payment, transfer, or carrying over, or other disposal by the said Accountant-General of any cash, stock, funds, annuities, securities, or other effects which may be standing in his name to the credit of any If and when the principal registrar shall be cause or matter depending in the Testamentary satisfied upon any such application as aforeCourt, the said Accountant-General, and all said, whether made directly at the Testaother persons, including the Governor and Commentary Office or sent to him through the pany of the Bank of England, and all other General Post Office, that the same ought to companies and societies, shall act upon such be granted, he shall signify such satisfaction order in the same manner as if such order had to the person making such application, and been an order of the Court of Chancery duly subject to such regulations as may be made drawn up, passed, and entered, and one of the registrars of the Testamentary Court shall certify under his hand to the said AccountantGeneral what stocks or funds he is by virtue of any such order to transfer, and to whom, in the same manner as the registrars in the Court of Chancery have been accustomed to do; s. 34. Any person desirous of proving any will or obtaining letters of administration to the effects of any deceased person is, either personally or through a solicitor, to apply for the same at the Testamentary Office of the Court, and leave or cause to be left in such office, the will, if any, of the deceased (unless the same shall have been previously deposited in the Court or the registries thereof, or shall for any other reason be not required to be left), and also a copy of the will, if any, and an affidavit made by the person or some one of the persons applying for such probate or administration, with a schedule thereto, in a form similar to the form set forth in the Schedule A. to this Act, with such variations as the nature and circumstances of the case may require, and such other papers as may be necessary for the purpose of obtaining such probate or administration; s. 36. Where the person applying for such probate or administration shall be resident out of the limits of the London district post, such application, together with the documents necessary for the purpose of obtaining such probate or administration, may be addressed and sent by the Lord Chancellor as to the mode of payment of the stamp duty payable by law on such probate or administration, and the fees payable thereon, shall cause such probate or administration to be granted accordingly, and to be delivered or transmitted through the General Post Office to the person making such application as aforesaid or his solicitor; s. 39. Probate and administration may be granted in the form or to the effect set forth in Schedule B. to this Act, with such variations as the nature and circumstances of the case may require; s. 40. Probate copies of wills and letters of administration, with or without the will annexed, as the case may be, shall be printed under the direction of the principal registrar, who shall cause the seal of the Court to be affixed to any be required by the person proving the will or one or more of the printed copies which may taking out the letters of administration; s. 41. The principal registrar shall, within such time after the grant of probate or administration as the Lord Chancellor shall by any general order direct, cause a printed copy thereof to be transmitted through the post to each of the following offices or places; that is to say, 1. The Metropolitan Register Office of Births and Deaths in London: 2. 3. 4. 5. The Office of her Majesty's Prerogative in The Office of the Commissary of the County The Office of the Registrar of Births and Deaths in the district within which the deceased died, in all cases where the place of his death shall be known to have been within any such district : Such other offices or places, if any, as the Lord Chancellor shall from time to time direct; s. 42. Any printed copy of a will, probate, or administration to be so transmitted as aforesaid may be inspected by any person, on payment of a fee of 6d. ; s. 43. The principal registrar shall also retain in the Testamentary Office so many printed copies |