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6 TRUSTS IN GENERAL. time be said to be one of their distinguishing marks. Further, it is scarcely accurate to distribute all trusts into the classes of those " expressly undertaken" and constructive trusts. The trustee (save when the author of the trust constitutes himself a trustee), even in the case of express trusts, generally does not express his assent to undertake it. It would be more correct to distinguish between trusts which are imposed expressly and constructive trusts. It should perhaps be added that in the 5th and 6th editions of his book, Mr. Underbill has modified his definition so as in part to meet the criticisms here advanced. Lord Justice Lindley (1897, In re Williams, (1897) 2 Ch. 19).— " A trust is really nothing except a confidence reposed by one person in another and enforceable in a court of equity." This is substantially the same as Lord Hardwieke's, given above, and is subject to the same objections as his. Now, in order to construct a definition which shall not be open to the criticisms urged against those set out above, it is necessary to inquire what are the distinguishing marks of a trust, for the definition should include all those and none others. " A definition, in order to be satisfactory, ought to give with precision the marks whereby the thing to be defined is distinguished from all other things." (Lawrence, International Law, 1.) For this purpose it is advisable to see, in the first place, what relation the law of trusts bears to other branches of our law. There can be no doubt that a trust possesses some characteristics which are closely analogous to those of a contract. (See Pollock, Contracts, 6th ed. 195; Anson, Contracts, 8th ed. 8; Enc. Brit. Art. "Trust"; Enc. Eng. Law, Intro. vol. i. 11; Underbill, Trusts and Trustees, 6th ed. 3.) This analogy is specially marked in the case of that class of contracts known as bailments. These, indeed, are not infrequently spoken of as trusts (see, e.g., Blackstone, Comm. iii. 432), and it seems impossible to distinguish a depositum bailment from what is sometimes called a simple or bare trust. It is common usage to speak of a depositee as a trustee (see, e.g., Lord Hollis's Case (1686), 2 Vent. 345; the judgment of Holt, C. J., in Coggs v. Bernard (1702), 1 Sm. L. C. 10th ed. 167; and both argument and judgment in In re Tidd, (1893) 3 Ch. 154), and authority may even be found for extending this to all bailments. Thus it is stated by
DEFINITION OF A TEUST. 7 Mr. Justice Story in his work on Bailments (8th ed., note at the foot of p. 8) that " a bailment is strictly a trust in the common judicial sense of the word " ; and he quotes a passage from Comyns' Digest (Chancery, 4 W. 5), in which it is even said that " if a man give goods upon trust to deliver them to a stranger, Chancery will oblige him to do it," which apparently amounts to saying that equity would enforce the duties of a bailee as though he were a trustee of the goods carried by him. Conversely we find another eminent writer, Sir William Markby (Elements of Law, § 617), admitting the question why the liability of a trustee should not be considered a contractual liability, to be one to which he does not find any clear answer. On the other hand, historically speaking, there is, of course, an immense distinction between contract and trust. The one is the creation of common law, the other of equity; and in the old days, when courts of law and equity were distinct tribunals, probably no one would ever have felt any doubt (in spite of the dicta of Story and Comyns cited above) but that except perhaps in the case of a depositum bailment a bill in equity against a bailee would be bad for want of equity. Even at the present time, when the differences between the old jurisdictions have become obscured, one cannot but feel that it is going to an extreme to speak of some kinds of bailees—say, e.g., common carriers—as trustees of the goods bailed to them. (See also Pollock, Contracts, 6th ed. 196; Anson, Contracts, 8th ed. 225.) It seems desirable, therefore, that the definition of a trust should, if possible, be so narrowed as to prevent its confusion with a bailment in particular and all other classes of contract in general. But it is not satisfactory to make what is purely a matter of history a basis of the distinction. An endeavour should be made to find a logical rather than a historical difference, if possible. Dr. Whitely Stokes (Anglo-Indian Codes, vol. i. 823) purports to have effected this in the Indian Trusts Act by making his definition emphasize the fact that the obligation of the trust is annexed to the oicnership of the property, and arises out of a confidence reposed in and accepted by the owner, or declared and accepted by him. But this is not satisfactory, for the double reason that the trustee is not necessarily the legal owner of the trust property, and, secondly, that the reposal of a confidence, although a characteristic which many, perhaps most, trusts possess, is not an invariable characteristic ; for it is quite clear that the author of the trust may
Page 2: UNIVERSITY OF LONDON INSTITUTE OF A
Page 7 and 8: A THESIS UPON THE DEFINITION, CLASS
Page 9 and 10: TABLE OF CONTENTS. PAOK INTRODUCTOR
Page 11 and 12: INTRODUCTORY. THE term "trust" has
Page 13 and 14: Part L—TBUSTS IN GENEBAL. CHAPTEE
Page 15 and 16: DEFINITION OF A TRUST. 3 active or
Page 17: DEFINITION OF A TEUST. 5 owner. Thi
Page 21 and 22: DEFINITION OF A TRUST. 9 courts the
Page 23 and 24: DEFINITION OF A TRUST. 11 since the
Page 25 and 26: CLASSIFICATION OF TRUSTS. 13 constr
Page 27 and 28: CAPACITY OF PARTIES. 15 CHAPTEE III
Page 29 and 30: CAPACITY OF PARTIES. 17 The sanctio
Page 31 and 32: CAPACITY OF PARTIES. 19 party to it
Page 33 and 34: CAPACITY OF PARTIES. 21 Lunacy also
Page 35 and 36: THE TRUST PROPERTY. 23 CHAPTER IV.
Page 37 and 38: THE TRUST PROPERTY. 25 expectancy o
Page 39 and 40: CREATION OF EXPRESS TRUSTS OF LAND.
Page 41 and 42: CREATION OF OTHER EXPRESS TRUSTS. 2
Page 49 and 50: RULES DETERMINING INTENTION TO CREA
Page 65 and 66: ENFORCEABILITY OF EXPRESS TRUSTS. 5
Page 67 and 68: ENFOECEABILITY OF EXPRESS TRUSTS. 5
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ENFORCEABILITY OF EXPRESS TRUSTS. 5
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ENFORCEABILITY OF EXPRESS TRUSTS. 5
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DISCLAIMER OF EXPRESS TRUST, 61 CHA
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DISCLAIMER OF EXPRESS TRUST. 63 hav
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CONSTRUCTION OF EXPRESS TRUSTS. 65
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CONSTRUCTION OF EXPEESS TRUSTS. 71
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INVALIDATING CAUSES. 75 CHAPTER XI.
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INVALIDATING CAUSES. 77 Guardian an
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INVALIDATING CAUSES. 79 upon good (
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INVALIDATING CAUSES. 81 ment is not
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INVALIDATING CAUSES. 83 UNLAWFUL PU
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INVALIDATING CAUSES. 85 7. Testator
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INVALIDATING CAUSES. 87 Immoral Tru
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RESULTING TRUSTS. 89 Part IIL—IMP
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RESULTING TRUSTS. 91 to give the tr
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RESULTING TRUSTS. 93 satisfied with
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RESULTING TRUSTS. 95 tion of A.'s e
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RESULTING TRUSTS. 97 or successive,
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RESULTING TRUSTS. 99 4. Copyhold la
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RESULTING TRUSTS. 101 Lastly, if A.
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RESULTING TRUSTS. 103 It does not s
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RESULTING TRUSTS. 105 CHAPTER XV.
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CONSTRUCTIVE TRUSTS. 107 B.—Const
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CONSTRUCTIVE TRUSTS. 109 quences of
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CONSTRUCTIVE TRUSTS. Ill (1857), 8
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CONSTRUCTIVE TRUSTS. 113 40 Ch. D.
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CONSTRUCTIVE TRUSTS. 115 4. A. and
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CONSTRUCTIVE TRUSTS. 117 The follow
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