brance so as to acquire priority in case subsequent dealings with the property should be attempted.

As a general rule where a man assigns his property to a trustee for the benefit of his creditors, it is open to him to revoke the trust, if the transfer has been made without the knowledge of the creditors.

But where the transaction is made known to the latter and they have thereby been induced to refrain from pressing their claims, or to grant some other indulgence which they would not otherwise have shown, the trust will then be irrevocable.

RENUNCIATION, RELEASE, AND REMOVAL OF TRUSTEES.

After intermeddling with the trust, the trustee cannot renounce it of himself; but he may obtain a release from the Equity Court, or under a special provision in the instrument by which the trust was created, or with the consent of all the cestuis que trust-they being all capable of contracting for themselves. If a trustee does not wish to accept the trust, he should, before interfering, execute a proper deed or instrument of renunciation.

The court, however, will not grant a release merely because the trustee wishes it, but will require him to show good cause such as bodily infirmity, etc.

A trustee may be removed by procedure in equity in case he is convicted of felony, is guilty of misconduct in relation to his trust, or departs beyond seas permanently, etc.

DELEGATION OF TRUST BY TRUSTEE.

A trustee may safely delegate his trust (i.e., employ an agent to act for him in connection therewith) in cases where it is absolutely necessary to do so, but he should give the business his personal attention whenever practicable.

Delegation of the trust is said to be excusable when the "regular course of business" requires it, otherwise the trustee would often be unable to transact every-day matters in connection with his trust.

DUTIES OF A TRUSTEE.

A well-known writer lays down the following rules for the guidance of a trustee in the performance of his duties, that is to say, he must not

1. Omit to take such care of the trust property as a man of average prudence would take of his own.

2. Allow the trust property or funds to remain longer
in the hands of third parties than is necessary.
3. Mix the trust property with his own; if he does so
the cestui que trust will be entitled to every part
to which the trustee cannot clearly establish his
claim.

4. Associate with himself the authority of another per-
son and so divest himself of his exclusive control
over the property.

His two cardinal duties are

(1.) To fulfil the directions of the creator of the trust. (11.) To place the trust property in a state of security.

CASES IN WHICH A TRUSTEE WILL BE LIABLE FOR LOSS.

Instances in which a trustee will render himself liable in the event of loss to the trust estate are illustrated by the same authority thus, viz., where he receives trust money and hands it over without securing its due application; where he allows a co-trustee to receive trust money without making proper inquiry as to his dealings with it; and where he becomes aware of a breach of trust, actual or premeditated, and omits to take the steps necessary to obtain redress or prevent the breach. RECEIPTS BY TRUSTEES-TOWNLEY v. SHERBORNE.

In the celebrated case of Townley v. Sherborne, it was decided that one trustee is practically responsible for the default of his co-trustee or co-trustees.

The tenor of the judgment in that case was to this effect, viz., if property be conveyed to two or more persons upon trust and one of them receives all or the greater portion of the profits of the estate, and subsequently dies or becomes reduced in circumstances, his co-trustee or co-trustees, in the absence of fraud or evil-dealing on their part to the prejudice of the trust, shall not be liable in equity for the profits received by the trustee who dies, etc.

But it was further decided that, if satisfactory proof was given of any fraud or evil-dealing in the trustee who allowed his co-trustee to receive all or the greater portion of the profits, he should be held liable although he received nothing.

The above principles apply to the case where a trustee signs a receipt for trust money simply for conformity's sake; in such instances the mere fact of signature does not render the trustee liable in the event of misapplication; but he must not allow the money to remain in his co-trustee's hands longer than is reasonable under the circumstances of the case, as such

conduct will amount to "evil-dealing" within the meaning of the case previously cited and he will be answerable.

The loss may be occasioned by a comparatively brief delay, e.g., neglect to make inquiry respecting the disposition of the money for a fortnight or less.

REMEDIES OF CESTUI QUE TRUST FOR BREACH OF

TRUST.

If a breach of trust should occur, the beneficial owner may, as it is said, "follow" the estate where it has come into the: hands of a person who gave no valuable consideration for it, or who gave value for it but was aware of the trust; but if valuable consideration is given for the property in ignorance of the trust, the purchaser having obtained the legal estate will be safe.

The cestui que trust may lose his remedy by concurring or acquiescing in the breach, or by executing a release to the defaulter.

TRUSTEE ENTITLED TO SETTLEMENT OF

ACCOUNTS.

Where the trust has been completely executed and the cestui que trust is satisfied that nothing more is due to him from the trustee, the latter is entitled to a release.

If a release is refused, the trustee may proceed in equity for an account.

STATUTORY PROVISIONS FOR THE RELIEF OF

TRUSTEES.

Certain provisions have been made by statute for the relief of trustees, executors, and administrators, the principal of which are briefly as follows:

1. In the absence of special directions in the instrument creating the trust, trustees, etc., may invest the trust funds in real securities in this State, or in Government debentures or other public securities of the same.

2. All trustees, etc., or a majority of them, may pay or transfer the trust property into the hands of the Master in Equity, and thus obtain a discharge.

But reasonable cause for such transfer, etc., must be shown; e.g., as if there is a doubt as to what persons are entitled to the property.

3. Any trustee, etc., may apply to the Chief Judge in Equity for his opinion and advice respecting the

management and administration of the trust property, and on acting on such opinion shall be deemed to have discharged his duty-except in cases of fraud or misrepresentation.

4. The Equity Court may appoint a trustee where none is appointed, or appoint new trustees in addition to or substitution for any existing trustee or trustees. 5. Every instrument creating a trust shall be deemed to provide for the reimbursement out of the trust fund of the trustees-for expenses incurred by them in the execution of their trust.

TRUSTEE ALLOWED OUT-OF-POCKET EXPENSES

ONLY.

It is a general rule of equity that a trustee shall not profit by his trust, therefore he is allowed out-of-pocket expenses only; but by statute temporary trustees and executors and administrators may be allowed a commission on the sum represented by the assets of the testator or intestate collected by them.

FRAUDS BY TRUSTEES.

Where a trustee, with intent to defraud, converts or appropriates the trust property or any part of it to his own use or purposes; or, with a similar intent, otherwise disposes of or destroys such property, he is liable to a maximum sentence of ten years' penal servitude.

This provision of the criminal law applies only to trustees on some express trust created by a deed, will, or other instrument in writing.

PURCHASE BY TRUSTEE OF TRUST PROPERTY.

The purchase by a trustee of the trust estate is, generally speaking, liable to be set aside in equity; but in the following cases the purchase will, according to a high authority, hold good

1. Where the trustee is willing to give a "fancy price" for the estate, i.e., more than any other person.

2. Where the offer to sell proceeds from the cestui que trust and the trustee pays the ordinary market value the latter having the benefit of independent advice.

3. Where the sale is by public auction and the trustee has obtained permission to bid of the Equity Court.

If the cestur que trust is capable of acting for himself (i.e., under no disability) the court has no authority to allow the trustee to bid.

Wagers, Gaming, Etc.

WAGERS.

A wager is defined by Anson as a promise to give money or money's worth upon the determination or ascertainment of a certain event; the consideration for such promise being either something given by the other party, or a promise to give something upon the event determining in a particular way.

At common law all wagers were enforceable, unless tainted with immorality or in some way outraging public decency.

But by the Act 14 Vic., No. 9, it is provided that all contracts or agreements by way of wagering or gaming shall be null and void; and that no action shall be brought for recovering any money or valuable thing alleged to be won on any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made.

But subscriptions or contributions, or agreements to subscribe or contribute, for or towards any plate, prize, or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise, are expressly excluded from the operation of the statute.

TRANSACTIONS COLLATERAL TO WAGERS.

As a rule, transactions collateral to, i.e., arising indirectly out of wagers, are not illegal, and therefore money lent to make or pay bets can be recovered; and a man may recover money received on his behalf by another on account of his share or interest in a winning ticket in a "consultation or sweep.

دو

As regards securities, such as promissory notes, cheques, etc., given to secure money won by gaming or wagering, these are void not only as between the original parties, but also as in favour of an innocent holder of the security, although he took it without knowledge of the illegal consideration for which it was given, and gave valuable consideration for the same-in virtue of the Act 9, Anne, c. 14, section 1, held to be in force in this colony in Edwards v. Hirschman.

Money won at cards, dice., etc., cannot be recovered by the winner, for no action will be against the loser.