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the functions of a trustee performed without any transfer of property, the connexion between the parties appears to come within the character of agency and not of trust. In early times, when the political conduct of proprietors, or other strongly influencing motives, prompted them to conceal the real ownership of property, and the irregular state of the law aided the dubiety, latent trusts were frequently created, the person who had a conveyance as absolute proprietor being trustee for another. This was partly remedied by a statute enacting that no action of Declarator of trust should be competent, unless on the oath of the trustee, or his signed acknowledgment in a declaration or back-bond of trust.1 "Since which time," says Erskine, "trust-deeds have been seldom granted, without either a clause in the deed expressing the uses, or a back-bond by the trustee declaring them." An acknowledgment by the trustee's representative has been held to fulfil the requisites of the act. The act is intended to apply to actions to establish the trust, at the instance of the party who alleges himself to be the truster or of his representatives, against the party whom he alleges to be his trustee. In questions where creditors or other third parties are concerned, the constitution of the trust may be proved by ordinary evidence. In a late case where an absolute disposition had been granted for the purpose of a temporary transfer for creating votes out of the superiority, and no possession had been taken by the disponee, and the disponer bonâ fide continuing in possession burdened the land,-the disponer becoming bankrupt, the trustee on his estate obtained a conveyance from the disponee's heir, and thus in his alternate qualities, as representative of the disponer for whom the lands were held in trust, or as representative of the disponee to whom they were absolutely conveyed, attempted a reduction of the securities, but unsuccessfully-the court finding that the disposition "is proved and admitted to have been a trust title, granted for a temporary purpose, and for the granter's own behoof, which passed no right of property in the lands to the said [disponee] who never had any possession. It thus appears that there may be cases where there is an absolute conveyance which, never having been followed by possession, or made the ground of a claim on the part of the person benefited, is to be treated as a merely temporary and

11696, c. 25, Duggan v. Wight, M. 12761.-2 E. iii. 1, 32.-3 Fordyce v. Montgomery, 7th February 1811.- Elibank v. Hamilton, 16th November 1827. Lindsay v. Giles, 27th February 1844.

nominal trust, not having even so much of the character of a genuine trust that the trustee is temporarily invested with the property.1

Investment. In a genuine trust the divestiture of the truster and the investment of the trustee constitute the primary element. It must generally be a main object with the parties, that the property concerned, whether heritable or moveable, should not be attachable by the truster's creditors, or in any other way subject to be affected by his conduct or operations. To accomplish this, possession must be changed, and besides the title given to the trustee by the deed of trust, there should be delivery of moveables, infeftment of land, and notice of assignments.2 Where there are more trustees than one, it is not necessary that the investment should be in them all. The management may be distributed among the whole the investment may be in the person of one or more. Sometimes the limitation of the trustee's right is incorporated in his title, while in other cases his title is absolute, and the limitation is contained in a back-bond. The latter method has facilities for effecting sales and transactions with third parties, but it may subject the estate to risk from the trustee's creditors.3

The purposes of the trust may be set forth in the deed investing the trustees, or power may be reserved to set them forth wholly or partly in a separate writing or succession of writings. In the latter case the law of deathbed may operate, rendering ineffectual any destination contrary to the interests of the heir-at-law, unless he have been previously disinherited (see above, p. 97). The trustees are debtors to any person holding a beneficiary interest under the trust, and as a creditor, such a person has, after the vesting, a preference over the creditors both of the truster and the trustees. This beneficiary right may be bequeathed or assigned, or may be attached by creditors.4

Trusts, as they come under our notice on the present occasion, are for the accomplishment of private objects relating to succession, the payment of debts, &c. Those creations of permanent establishments for the accomplishment of public purposes, which are called Mortifications, and are generally in the hands of corporate bodies, have a more direct connection with public law. Questions as to whether the objects

See the Law of Bankruptcy, &c. p. 338.- See Forsyth on Trusts, 70, et seq-3 B. P. 1994.- Gibson v. Arbuthnot, M. 12885. Gordon's Trustees v. Harper, 4th December 1821. Macdowall v. Russell, 6th February 1824.

of a trust are competent, are generally connected with this department; and though the rule that no contract, obligation, or deed, for the furtherance of any immoral or illegal object, can be supported by the courts of law, must apply to trusts, there has hardly ever been occasion to question private trust-deeds on such grounds.

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Thelusson's Act.-The only special restriction on the purposes of a trust is by Thelusson's Act, passed in 1800, which prohibits any one, by any description of deed, from providing for the accumulation of property, or its returns, so and in such manner that the rents, issues, profits, or produce thereof shall be wholly or partially accumulated for any longer term than the life or lives of any such granter or granters, settler or settlers, or the term of twenty-one years from the death of any such grantor, settler, devisor, or testator, or during the minority or respective minorities of any person or persons who shall be living, or in ventre sa mère at the time of the death of such granter, devisor, or testator, or during the minority or respective minorities only of any person or persons, who, under the uses or trusts of the deed, surrender will or other assurances, directing such accumulations, would, for the time being, if of full age, be entitled unto the rents, issues, and profits, or the interest, dividends, or annual produce so directed to be accumulated." Trusts contrary to the provision are null. The act specially exempts" any disposition respecting heritable property" in Scotland,' and it was found both by the Court of Session and the House of Lords, that the Strathmore settlement came within the exemption.2 The accumulation in this case was not a perpetuity, and the Lord Chancellor said: "I do not mean to say that there may not be an extremely good ground for setting aside an accumulation, that is to go on for ever, and I do not consider how long or how short a period money or land may accumulate in Scotland." It was found that a trust for accumulating money in the public funds for a hundred years, to be then applied to the erection of an hospital for the benefit of poor boys belonging to the inhabitants of Dundee," and to be under the management of the kirk-session, was struck at by the act.3

SECT. 2.-Constitution.

Where more than one trustee is appointed, it is expedient

1 39 & 40 Geo. III. c. 98.-2 Strathmore v. Strathmore's Trustees, 23d March 1831, 5 W. S. 170.-3 Currance v. Kirk-session of Dundee, 12th February 1846.

that the powers and duties of the trust should be conferred on the acceptors or survivors. Many litigations regarding the fulfilment of their duties, by trustees generally named without provisions for their not all accepting, not all surviving, and not being unanimous, show the utility of making the machinery of the trust flexible by such provisions.1 It is usual to appoint a certain number a quorum, and it appears that in such a case, if by deaths or resignations that number do not concur, the trust cannot be fulfilled; while at the same time it appears that if a quorum of accepting trustees be in existence, no one of them will be entitled to withhold his consent from an ordinary act of management.2 If there be no established quorum, and no special regulation on the subject, it appears that a majority of the existing trustees may act in the trust.3 When a trustee has accepted, and the business of the trust has commenced, he is not entitled to resign, and one who had in such circumstances intimated a resignation was found not entitled to relief by his co-trustees from the expense of legal proceedings in which they had used his name along with their own.* But in a case where the business had not actually commenced, a trustee who had in a brief and general manner intimated his acceptance, and who differed with his colleagues on a material department of the conducting of the trust, was found entitled to retire.5 It has been said that "when a trustee has urgent occasion to resign from the state of his own affairs, or it may be from the state of his health or avocations abroad, and in fact when this is not done capriciously, to embarrass the trust-management, he has a right to do so at the sight and by the authority of the Supreme Court."6 In general, where the trust is continuous, not only are full powers conferred on survivors, but they are empowered to add to their number so as to keep up the succession of the trust. Where, by deaths or non-acceptances, there is not a sufficient number to put in force the trust, the court will give a remedy. It has been usual in such a case to appoint a factor or curator;7 but in two late cases, where all the parties assented both to the appointment and to the persons, the court appointed a

1 See Freen v. Beveridge, 28th June 1832, and Cases there cited.-Lynedoch v. Ochterlony, 15th February 1827.-B. P. 1993.- Logan v. Meiklejohn, 26th May 1843.- Bannerman v. Bannerman, 1st December 1842.6 p. Lord Ordinary Cuninghame in Watson v. Crawcour, 17th February 1844.-7 Grant, &c. Petitioners, M. 7454, Campbell v. Campbell, M. 16203. Busby, 1st February 1823. Alexander and Others, 27th February 1824. Sheriffs v. Boyd, 24th January 1829. Douglas, 14th December 1839.

set of trustees, with the full powers of those who had been named in the original trust.1

SECT. 3.-The Trustees-their Powers, Duties, and

Responsibility.

There are probably few matters on which individuals are more apt to seek a guide in the principles of the law than in desiring to ascertain their powers and duties as trustees, and at the same time there is scarcely any occasion for which the law is less prepared with general rules. The exigencies of trusts refer more or less to almost all the transactions in which individuals may be engaged on their own business, and each decision generally applies to its own peculiar circumstances, affording very inadequate means of framing a general rule. The most prominent of the generally received rules regarding the powers of trustees is, that whether it be so expressed or not, all the legitimate and legal operations suitable to the accomplishment of the ends of the trust are possessed by them; so, where trustees were infeft in land for payment of the truster's debts and with power of sale, they were entitled to enter vassals, and pursue declarators of nonentry. In one case, which however was entirely special, where funds had been vested in trustees for the purchase of an estate to be entailed, having purchased one without a mansion-house, they were found entitled to apply surplus funds to the erection of a house.3 It was found that the trustees of a trust for charitable purposes might sell superiorities (which were then valuable as creating votes) for the benefit of the trust, though not specially authorized in the trust-deed. In one case where, from the context of the trust-deed, it was inferred that the truster intended to authorize the trustees to sell certain lands and entail them along with other lands, and a special power to effect this appeared to have been omitted in the trust-the Court of Session, in a litigation with a party whose interest it was that the lands should not be entailed, found the trustees entitled to sell and entail; but the decision was reversed. It was found that the destination of and right to a meeting-house and other property of a dissenting congregation may be inferred from the

5

Melville v. Preston, 8th February 1838. M'Aslan, 17th July 1841.Ker v. Russell, 7th December 1838.-3 Sprot's Trustees v. Sprot, 11th March 1830.- Moore's Trustees v. Wilson, 25th June 1814. Robertson v. Allan, 7th March 1832; reversed. 2 S. & M'L., 333,