a thesis - Institute of Advanced Legal Studies

2 TRUSTS IN GENERAL.
look askance at all efforts in this direction—a frame of mind that
has found expression in the maxim, " omnis definitio in jure periculosa
est." Nevertheless, in order to attain clear ideas definitions
are essential, and this is no less so in the law of trusts than in anyother
branch of our law; before the scope and detail of the subject
can be known it must be determined what the nature and definition
of a trust is.
Many attempts to define a trust have been made, but it cannot
be said that any of them is entirely satisfactory. The following
are the most important, placed in their chronological order:—
Lord Hardwire (1734, Stitrt v. Hellish, 2 Atk. 211).—"A
trust is where there is such a confidence between parties that no
action at law will lie, but is merely a case for the consideration of
this court" (i.e., of course, the High Court of Chancery).
This definition accentuates one of the most striking characteristics
of a trust at the time at which it was enunciated, but, though
frequently cited by later writers (e.g., Holland, Jurisprudence,
6th ed. 218), is obviously insufficient at a time when the distinction
between courts of equity and courts of law has ceased to exist
in England. It only regards two of the peculiar features of a
trust, neither of which is now essential. It makes no allusion to
the fact that a trust is concerned only with property (In re Barney,
(1892) 2 Ch. 265), nor to the separation between the beneficial and
legal ownership of that property, nor to the obligation to which
it gives rise. It was, in fact, framed merely to emphasize a point
in the case then under discussion.
Mr. Justice Story (1835, Equity Jurisprudence, 2nd (Eng.) ed.
§ 964).—"A trust, in the most enlarged sense in which the term
is used in English jurisprudence, maybe defined to be an equitable
right, title, or interest in property real or personal, distinct from
the legal ownership thereof."
This definition was adopted by Brett, L. J., in the case of
Wilson v. Lord Bury (1880, 5 Q. B. D. 530) ; but, as pointed out
by Mr. Underhill (Law of Trusts and Trustees, 6th ed. 3) and by
Mr. H. A. Smith (Principles of Equity, 2nd ed. 23), it is rather a
definition of the interest of the person in whose favour a trust is
created than of the trust itself, and omits to take account of