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CIHM/ICMH 
 
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 1 2 3 
 
 1 
 
 2 
 
 3 
 
 4 
 
 6 
 
 S 
 
Vv 
 
TRUSTEES 
 
 LIMITATIONS OF ACTIONS 
 
 AND 
 
 OTHER RELIEF. 
 
 \^ 
 
LIMITATIONS OF ACTIONS 
 AGAINST TRUSTEES 
 
 AND 
 
 RELIEF FROM LIABILITY FOR TECHNICAL 
 BREACHES OF TRUST. 
 
 Being a concise treatise upon the position of Trustees 
 
 AS AFFECTED BY 
 
 The Imperial Statute, 51 and 52 Victoriae, Cap. 59, Section 8. 
 The Revised Statute of Ontario (1897), Cap. 129, Section 32. 
 The Nova Scotia Statute, 52 Victoriae, Cap. 18, Section 17. 
 
 AND BY 
 
 The Imperial Statute, 59 and 60 Victoriae, Cap. 35, Section 3. 
 The Ontario Statute, 62 Victoriae, Cap. 15, Section i. 
 The New Brunswick Statute, 61 Victoriae, Cap. 26. 
 
 tHith an Jppfnbi^E of ^iatutfs. 
 
 COPIOUS REFERENCES AND A VERY FULL INDEX. 
 
 By FRANCIS A. ANGLIN, B.A.. 
 
 OF OSGOODE HALL, BARRISTER-AT-LAW. 
 
 Toronto : 
 
 CANADA LAW BOOK COMPANY, 
 
 32 Toronto Street. 
 
 1900. 
 
 
Entered according to Act of the Parliament of Canada, in the year 
 One Thousand Nine Hundred, by R. R. Cromarty, at the Department 
 of Agriculture. 
 
 Printed bv R. G, McLean, 
 
 Law Printer, 
 
 Toronto. 
 
TO THE 
 
 HONOURABLE WILLIAM GLENHOLME FALCONBRIDGE, 
 
 ONE OF THE JUSTICES 
 OF HER majesty's HIGH COURT OF JUSTICE FOR ONTARIO, 
 
 gUEEN's BENCH DIVISION, 
 THIS LITTLE WORK iS, AS A SLIGHT TOKEN OF ESTEEM, 
 
 RESPECTFULLY INSCRIBED. 
 
- y i»^»lipi mu p* <' i <m ' ■' l >'* 
 
 J 
 
w vm '■» ?^ I" w I 
 
 CONTENTS. 
 
 A-LIMITATIONS OF ACTIONS AGAINST 
 
 TRUSTEES. 
 
 CHAPTER I. 
 
 PAGE. 
 
 Pre-Existing Law j 
 
 CHAPTER II. 
 
 The Statute ; Its Scope n 
 
 CHAfTER III. 
 
 The Exceptions— First Exception— Fraud 19 
 
 CHAPTER IV. 
 
 Fraud of Agent ; Concealed Fraud 23 
 
 CHAPTER V. 
 
 Partners ; Co-Trustees ; Acknowledgments .... 33 
 
 CHAPTER VI. 
 
 The Second Exception, " Still Retained " 39 
 
xiv CONTKNTS. 
 
 (^H AFTER VII. 
 Tlie Third Exception, " I'lopt'i'ty Converted". . . 43 
 
 CHAPTER VIII. 
 
 ClauHe A '^^ 
 
 CHAPTER IX. 
 
 Aecnial of Cause of Action ; Di.sabilities, etc ... 58 
 
 CHAPTER X. 
 
 Clause B 6- 
 
 CHAPTER XI. 
 
 Clause B. — Action for Account 70 
 
 CHAPTER XII. 
 
 Reversionary Interests 81 
 
 CHAPTER XIII. 
 
 Married Women Cestuis que Trustent H4 
 
 CHAPTER XIV. 
 
 Co-Cestuis que Trustent 88 
 
 CHAPTER XV. 
 
 Statute Retrospective ; Conclusion 95 
 
CON'TKNTS. XV 
 
 B.-RELIEF OF TRUSTEES FROM LIABILITY 
 
 FOR TECHNICAL BREACHES 
 
 OF TRUST. 
 
 (^HAPTKH I. 
 
 Teeliiiicul Broticlics of Trust D!) 
 
 rr 
 
 ('HAPTKH n. 
 
 Soiiu' Duties and l^'S])()lls^l)^liti('s !();') 
 
 CILMTKH lir. 
 
 rii." statute : Its Eti'cct 115 
 
 'I' 
 
 . CHAPTRH rv. 
 
 " Honestly " 122 
 
 CHAPTER V. 
 
 " Reasonably " 120 
 
 CHAPTER VT. 
 
 Miscellaneous ; Conclusion 141 
 
 Appendix —Statutes 149 
 
 Appendix B. — Forms of Orders 17() 
 
 Index 181 
 
 1 
 
It-HK 
 
 ERRATA ET ADDENDA. 
 
 l'A(iK 
 
 MNK 
 
 KOR 
 
 KKAD 
 
 
 
 Note :5 
 
 Broody 
 
 Broddy 
 
 9 
 
 1() 
 
 could 
 
 can 
 
 01 
 
 18 
 
 co-.iStitiies 
 
 constitutes 
 
 101 
 
 20 
 
 Whitely 
 
 Wliiteley 
 
 ii:i 
 
 Note 4 
 
 A.C. 
 
 1 Ch. 
 
 i:i<» 
 
 " G 
 
 creditor's 
 
 creditors' 
 
 143 
 
 " ;] 
 
 were 
 
 was 
 
 Page (], Note U, and Page 39, Note 1, add: — Bi(/(is v. Freehold L. 
 <!'• .S. Co., 26 A.K. 232. 
 
 Page 94, Note 2, add: — The statutory provision, made by 19 & 20 
 Vict. (Imp.) cap. 97, sec. 10, not having been adopted in British 
 Columbia, Nova Scotia, or New Brunswick (see A]>pendix A. p. 171), 
 Pcrri/ V. Jackson. 4 T.K. olC, will still be serviceable as an authority 
 in those Provinces. 
 
 \ 
 
TABLE OF CASES. 
 
 X.Il. — Ifcdrilji faced vitmhcrs hulicale principal references to, anti 
 statements of facts of, case. 
 
 Addy, BiMies v., L.R. 9 Ch. App. 244 4 
 
 Adey v. Arnold, 2 De G. M. & G. 4:52 54 
 
 Allan V. McTavish, 2 A.R. 278 57 
 
 Allison V. Frisby, In re Frisby, 4.3 Ch. D. 106 57 
 
 Andrew v. Cooper, In re Bowden, 4') Ch. D. 444 8, 48, 58, 63, G5, 
 
 69, 84, 95, 96 
 
 Annesley (Lord;, Hovenden v., 2 Sch. & Let". 6130 1 
 
 Arnold, Adey v., 2 De G. M. & G. 432 54 
 
 Ashdown v. ^Fontgomery, 8 Man. Kep. 520 169 
 
 Ashwell, Soar v., (1893) 2 Q.B. 390 3, 4, 5, 65 
 
 Atherton, Udell v., 7 H. & N. 172 30 
 
 Attorney-General v. Fishmongers' Co., 5 My. & Cr, 16 5 
 
 Bahin v. Hughes, 31 Ch. D. 390 34 
 
 Baldwin v. Thomas, 15 Gr. 119 108 
 
 Bank of Nova Scotia, Richards v., 26 S.C.R. 381 26, 31 
 
 Ball, Ex parte, 35 W.R. 464 51, 53 
 
 Banner v. Berridge, 18 Ch. D. 254 6, 7. 55, 65 
 
 BannistCi-, Moodie v., 4 Drew. 432 92 
 
 Barker v. Ivimey, In re Turner, (1897) 1 Ch. 536 34, 77, 85, 110, 
 
 116, 117, 122, 123, 126, 129, 144 
 
 Barker, In re, Ravenshaw v. Barker, 77 L.T. 712 101, 111, 117, 
 
 122, 137, 139, 144 
 
 Barnaby, Sporlev., 13 W.R. 151 112 
 
 Barnard, Chisholm v., 10 Gr. 479 102 
 
 Barnes v. Addy, L.R. 9 Ch. App. 244 4 
 
 Barwick v. English Joint Stock Bank, L.R, 2 Ex. 259 26, 30 
 
 Bateman v. Davis, 3 Madd. 98 112 
 
 Bayne v. Eastern Trust Co., 28 S.C.R. 606; 30 N.S.R. 173 109, 113 
 
 Beard, Boultonv.,3 De G. M. & G. 608 139 
 
 Beatty, Stephens v., 27 O.R. 75 58, 61, 95 
 
 Beck v. Pierce, 23 Q.B.D. 316 86 
 
 Beck ford v. Wade, 17 Vesey, 87 4 
 
 Belchier, Ex parte, Ambler 219 34 
 
 Bell, Houghton v., 23 S.C.R. 498 5 
 
.will TAIiLE OF (ASKS. 
 
 Bell, Wvli^ht v., IK A.R. LT) 5 
 
 Bellamy, Clark v., ;iO O.K. [uV2 27, ;]1. :*•_'. i:i(l 
 
 Bellamy & Metropolitan Board of Works, In re, 24 Ch. D. :{87 1(IL> 
 
 Bellamy, Perrins v., (isyy) 1 Ch. 797;. (18!)8) 2 Ch. 527 loo. li;{, 
 
 118, J21, 122, 12"), 127, 136, KJl), ]4(), 141. 142. 14:!. 14") 
 
 Benyon, Kvans v., 37 Ch. 1). 32!) li;j 
 
 Berridf^e, Banner v., 18 Ch. D. 2.14 G, 7, "),"), (>') 
 
 Betjeman v. Betjeman, (189')) 2 Ch. 474 1)2 
 
 Billinf?s V. liiist, 1 Thorn, (il or 88 37 
 
 Bin<;haiu, I'ardo v., L.U. 4 Ch. App. 735 98 
 
 Blackwell's Case, 1 Vernon, 152 145 
 
 Blair v. Bromley, 2 Ph. 359 28, 33 
 
 Blair v. Ormond. 1 De G. &Sm. 428 9 
 
 Bleazard v. Whalley, 2 W.li. ()U8 108 
 
 Blencowe, Ex j)artp, L.R. 1 Ch. Ai)p. 393 52 
 
 Blue V. Marshall, 3 P. Wms. 381 lOS 
 
 Boatwri^ht V. Boatwrijjht, L.K. 17 F^q. 74 94 
 
 Bolton V. Curre, (1895) 1 Ch. 544 113 
 
 Bond, Clout,'h v., 3 M. & Cr. 49(5 Ill 
 
 Boiiney v. Hidf^ard, 17 Vesey 97; 4 Bro. C.C. 138 4 
 
 Booth V. Warrington, 4 Bro. C.C. 1(13 3 
 
 Bostoek V. Floyer, L.K. 1 E(i. 2(1 109 
 
 Boiilton V. Beard, 3 De G. M. & (i. (508 139 
 
 Bowden, In re, Andrew v. (hooper. 45 Ch. 1). 444 8, 48, 5s. (13. (i5. (lit. 
 
 84, 95, 9(1 
 
 Bowes V. Strathmore, 8 ,Iur. 92 los 
 
 Bowyer, Knight v. ,2 DeG. & ,1.421 9 
 
 Boyes, (Joodnian v., 17 A.K. 528 92 
 
 Bridgman v. Gill, 24 Beav. 302 4 
 
 Bright V. Legerton, 29 Beav. (50 3 
 
 Bringeman, In re Swain, Swain v., (1891) 3 Ch. 233 2, (5. (id, (il, 
 
 (53. 79, 95 
 
 Britisli Mutual Banking Co. v. Charnwood Forest Kailwav Co.. 18 
 
 Q.B.D. 714 '. 25. 2(5. 30 
 
 Brittlebank v. Goodwin, L.K. 5 Eq. 550 9 
 
 Broddy, Coyne v., 15 A.K. 159 5 
 
 Brogden, In re, 38 Ch. D. 54(5 105, 111 
 
 Bromley, Blair v., 2 Ph. 359 28, 33 
 
 Bromley, Lingard v., 1 V. & B. 114 34 
 
 Brooke, Mountstephen v., 3 B. & Aid. 141 9-2 
 
 Browne, Mara v., (1895) 2 Ch.69: (189(5) 1 Ch. 199 5,20, 33,43, .50, 
 
 5s, (50 
 
 Brown, Peters v., 4 Esp. 40 92 
 
 Brown v. Sewell, 11 Hare 53 102 
 
 Browne v. Radford, W.N. (1874) 124 3 
 
TAl'.I.K OF CASKS. \1\ 
 
 Brownlie v. Campbell, ") A.C. d'.i5 "-I 
 
 Hulli Coal Milliner Co. v. Osborne, (1899) A.C. .3;')] 1, 2, I!, LMi. .V). \\a 
 
 Biivrlll, Uobertson v., 212 A.K. U.Ki !•!'. 'Xi 
 
 Biirritt v. Burrltt, 29 (Jr. :}21 In? 
 
 Burrows v. Lock, 10 Vesey 470 '•>- 
 
 Hurt V. Palmer, 5 Esp. 145 ■'>~ 
 
 Bustross V. White, 1 Q.B.D. 42^ l4.-> 
 
 Buxton V. Buxton, I My & Cr. 80 lOS 
 
 Byrne V. Frere, 2 Moll. 171 9' 
 
 Caldecott v. Caldecott, 1 Y. & C.C.C. ;{12 ]\\> 
 
 Cameron v. Cain]>liell, 7 A.R. 301 (;• 
 
 Cameron v. Grant, 18 S.C.K. 71(); 23 N.S.K. oO 37 
 
 Campain, Want v., 9 T.L.K. 254 58, 59, 80, 91, 17(). 177 
 
 Campbell, Brownlie v., 5 A.C. 935 31 
 
 Campbell, Cameron v., 7 A.R. 361 (> 
 
 Cann v. Cann, 33 W.R. 40 1U9 
 
 Carruthers v. Carruthers, (1896) A.C. 659 liMi, l(i7 
 
 Cavanaf?h, Salter v., 1 1). & W. 668 (> 
 
 Cavendish- Bentinik v. Fenn, 12 A.C. 052 40 
 
 Chambers, Chillinsworth v., (1896) 1 Ch. 685 34, li:t. 
 
 Champion, In ic, Dudley v. Champion, (1893) 1 Ch. 101 in:; 
 
 Chandler, Ford v., 8 Gi . 85 11:; 
 
 Chapman, In re. Cocks v. Chapman, (1890) 2 Ch. 763... 103, lOS, 127. 13> 
 
 Charlotte Co. Bank v. Ross, 3 Allen, 627 37 
 
 Charnwood Forest Railway Co., British Mutual Banking Co. v.. Is 
 
 q.B.D. 714 * 25, 20. 30 
 
 Chillingworth V. Chambers, (1896) 1 Ch. 685 34. 113 
 
 Chisholm v. Barnard, 10 Gr. 479 102 
 
 Cholmondeley (^[arquis of) v. Clinton, 2 J. & W. 192 7 
 
 Christ Church, Dartmouth, In re, Russ. N.S. Eq. D. 405....110,135.146 
 
 Churcher v. Martin, 42 Ch. D. 312 
 
 City Bank v. Maulson, 3 Chy. Ch. 334 107 
 
 Clack V. Holland, 19 Beav. 202 1.34, i:!5. 144 
 
 Clanricurde (Marquis of), v. Henning, 30 Beav. 175 0, 27 
 
 Clark V. Bellamy, 30 O.R. 532 27, 31, 32, 130 
 
 Clark V. Ilougham, 2 B. & C. 149 93 
 
 Clark V. Macdonell, 20 O.R. 504 60' 
 
 Clay, Smith v., 3 B.C.C. 639 (note) Ot> 
 
 Clegg, Pott v., 16 M. & "W. 321 36; 
 
 Clews v. Grindey, In re Grindey (1898), 2 Ch. 593 ...103, 120, 123, 136,. 
 
 139, 143 
 
 Clinton, Marquis of Cholmondeley v., 2 J. & W. 192 7 
 
 Cloud, Youde v., L.R. 18 Eq. 634 \o:\ 
 
XX TA15LE OF CASES. 
 
 ("lou>.'li v.Boiid, ;i JI. & Cr. 49(5 HI 
 
 Cocker v. Qiiayle, 1 Kuss & My. 535 112 
 
 Cocks V. Chiipnian, In re Chapman, (189()) 2 Ch. 7«5;{....103, 108, 127. l.'$8 
 Coleman, Liquidators of Imp. Mercantile Credit Assn. v., L.K. (5 
 
 E. & I. App. 189 : 46 
 
 Ceilings v. Wade, {189(5) 1 Ir. R. 340.. ..21, 40, 44, 50, 58, 00, (52, (59, 75, 
 
 78, 79, 82, 88, 90 
 
 Colyer, In re, Millikin v. Snelling, 55 L.T. 344 108 
 
 Colquhonn v. Murray, 19 Can. L.T. 241 37 
 
 Commercial Bank of X.B., Mackay v., L.K. 5 P.C. 410 30 
 
 Cook V. Grant, 32 C.P. 511 5 
 
 Cooper, In re Bowden, Andrew v., 45 Ch. I). 444. .8, 48, 58, (53, (55, 09, 
 
 84, 95, 9(5 
 
 Cooper V. Green, 3 De G. P. & G. 58 9 
 
 Cornish, In re, (1890) 1 Q.B. 99 10 
 
 Costello, Seeord v., 17 Gr. 328 5 
 
 Coventry, Evans v., 8 De G. AL & G. 835 45 
 
 Coyne v. Broddy, 15 A.R. 159 5 
 
 Craig, Crowe v., 29 N.S. Kep. 394 34 
 
 Crawford, Gillihmd v., 4 Ir. R. Eq. 35 108 
 
 Creasy, Ilaycraft v., 2 East 108 20 
 
 Crewe v. Dicken, 4 Vesey, 97 .34 
 
 Cross, In re, Harston v. Tenison, 20 Ch. D. 109 3, 8, 9, 52 
 
 Crowe V. Craig, 29 N.S. Rep. 394 34 
 
 Crowter, In re, Crowter v. Hinman, 10 O.K. 159 35, 107 
 
 Cumming v. Landed Banking & Loan Co., 22 S.C.R. 246; 19 
 
 A.R. 447 118 
 
 Culley, Godwin v., 4 H. & N. 377 93 
 
 Curre, Bolton v., (1895) 1 Ch. 544 113 
 
 Dacre v. Patriekson, 1 1). & Sm. 185 7 
 
 Daines, Eaton v., W.N. (1894) 32 118 
 
 Dann v. Spurrier, 6 K.R. 119 10 
 
 Davies, In re, Ellis v. Roberts, (1898) 2 Ch. 142 40, 77, 176 
 
 Duvies, Evans v., 4 A. & E. 840 37 
 
 Davis, In re, (1891) 3 Ch. 119 7 
 
 Davis, Bateraan v., 3 Madd. 98 112 
 
 Davy v. Taylor 21, 34 
 
 Dawkins v. Lord Penrhyn, 4 A.C. 51 98 
 
 Dean v. Thwaite, 21 Beav. 621 3 
 
 DeMoleyns, Leahy v., (1896) 1 Ir. R. 206 17 
 
 Derry v. Peek, 14 A.C. 337 31 
 
 Dicken, Crewe v., 4 Vesey, 97 34 
 
 Dooby V. Watson, 39 Ch. D. 178 5 
 
 Dudley v. Champion, In re Champion, (1893) 1 Ch. 101 103 
 
TABLE OF CASES. XXI 
 
 Eastern Trust Co., Baynev., 28 S.C.K. 606; 30 N.S.K. 173 109, 113 
 
 Efistwood, Thomson v., 2 A.C. 215 2, 10, 26 
 
 Eiiton V. Daines, W.N. (1894) 32 118 
 
 Eaves v. Hickman, 30 Beav. 136 112 
 
 Ecclesiastical Commissioneis v. North-Eastern IJailway, 4 Ch. D. 
 
 845 26 
 
 Edgar v. Sloan, In re Hess Mfg. Co., 23 8.C.R. 644; 21 A.R. 66 . 46 
 
 Edmonds, Evans v., 13 C.B. 777 20 
 
 Elliott, McDonald v., 12 O.K. 98 o7 
 
 Ellis V. Roberts, In re Davies, (1898) 2 Ch. 142 40, 77, 176 
 
 Emesv. Ernes, 11 Gr. 325 109 
 
 Empson, Hughes v., 22 Beav. 181 107 
 
 English Joint Stock Bank, Barwick v., L.R. 2 Ex. 259 26, 30 
 
 Erlanger v. New Sombrero Phosphate Co., 3 A.C. 1218 2, 9, 46 
 
 Errington, Randall v., 10 Vesey, 427 9 
 
 Evans V. Benyon, 37 Ch. D. 329 113 
 
 Evans v. Coventry, 8 De G. M. & G. 835 45 
 
 Evans v. Davies, 4 A. & E. 840 37 
 
 Evans v. Edmonds, 13 C.B. 777 20 
 
 Evans, Vickery v., 33 Beav. 376 140 
 
 Ewartv. Gordon, 13 Gr. 40 108 
 
 Pearnside v. Flint, 22 Ch. D. 581 57 
 
 Fenn, Cavendish Bentinek v., 12 A.C. 652 46 
 
 Ferrier v. Trepannier, 24 S.C.R. 86 108 
 
 Fishmongers' Co., Attorney -General v., 5 My. & Cr. 16 5 
 
 Fitzgerald v. Pringle, 2 Moll. 534 110 
 
 FitzSimon, Kearnan v., 3 Ridg. 1 52 
 
 Fletcher V. Green, 33 Beav. 426 Ill 
 
 Flint, Fearnside v., 22 Ch. 1), 581 57 
 
 Flitcroft's Case, 21 Ch. D. 519 16 
 
 Flower & Metropolitan Board of Works, In re, 27 Ch. D. 592 107 
 
 Floyer, Bostock v., L.R. 1 Eq. 26 109 
 
 Foley V. Hill, 2 H.L.C. 28; 1 Ph. 399 5, 49 
 
 Ford V. Chandler, 8 Gr. 85. 113 
 
 Forest of Dean Coal Mining Co., In re, 10 Ch. D. 450 14 
 
 Foster, Vyse v., L.R. 8 Ch. App. 309 108 
 
 Foxwell's Estate, In re, 1 N.B. Eq. 195 143 
 
 Francis v. Hawkesby, 1 El. & El. 1052 93 
 
 Frere, Byrne v., 2 Moll. 171 9 
 
 Frisby, In re, Alliso: v. Frisby, 43 Ch. D. 106 57 
 
 Fry V. Tapson, 28 Ch. D. 268 106 
 
 Fuller V. Redman, 26 Beav. 614 93 
 
 Fyler v. Fyler, 3 Beav. 550 Ill 
 
xxii T.\i!i,i: oi" CASES. 
 
 (iiililc, Wiiinl v.. S (;r: 4r)8 110 
 
 Oi.iinuiic. Ill n-, i:; ().}{. (isr) Ill 
 
 (Jiuiiit. Ill ic, Spt"i<,'lit V. <J:iiiiit, \12 (Ml. D. 727: 9 .\.C. 1 :!4, Hi), 10() 
 
 (ifiiiU'V. Low v., IS S.C.K. CH.") 10(5 
 
 Ohost V. Wiillcr, <) Henv. 497 10!) 
 
 Oibbfson, (Jreoiiliam v., 10 Biiij;. 'Mi',\ 1 1'J 
 
 (iii.bs V. niiiid, !) (^.n.i). -}\} tin 
 
 (Jihson, (irif.'!,'s v., 121 W'.li. 818 108 
 
 (iill, BridKiniin v., 124 Beiiv. :}02 4 
 
 Gillilaiul V. Crawford, 4 Ir. It. Eq. 3') lOS 
 
 f^irdh-stoii.', OrtMifcll v., 2 Y. & C. ()7(; 'Xi 
 
 <Jodfrfy. Ill re, 2:5 CIi. I). 48!! Ill 
 
 Godwin v. Cullt'.y, 4 11. & N. :i77 93 
 
 Oooderliiiin V. Moore, 31 O.K. 8ti 119. 140 
 
 (ioodniaii v. Hoyes, 17 A.U. ri28 • 92 
 
 Goodwin. P.rittlt'liank v., L. R. 5 Eq., 550 9 
 
 Gordon. Kwart v., 13 (ir. 40 108 
 
 Gordon, Jones v., 2 A.C. (iKi 124 
 
 (iould. Head v., (1898) 2 Ch. 2r)0 34 
 
 (irant, Cameron v., 18 S.C.K. 71(5; 23 N.S.K. ."lO 37 
 
 <;nint. Cook v., 32 C. P. 511 5 
 
 Green's Case, L.K. 18 Eq., 428 3 
 
 Green, Cooper v., 3 De (J. F. & .1. 58 9 
 
 Green, Fletcher v., 33 Beav. 42(i HI 
 
 Green v. Humphreys, 26 Ch. D. 474 93 
 
 (ireen v. Nixon, 23 Beav. 535 20 
 
 Gre^^ory, Kolfe v., 4 De G. J, & S. 576 4 
 
 Grenfell v. Girdlestone, 2 Y. & C. (576 93 
 
 Greenham v. Gibbeson, 10 Bin}?. 3(53 112 
 
 Gresham, Wiles v., 2 Drew. 258 Ill 
 
 Griffith V. Hughes, (1892) 3 Ch. 105 113 
 
 Griggs V. Gibson, 21 W.K. 818 108 
 
 Grindev, In re. Clews v. Grindey, (1898) 2 Ch. 593 103,120,123,136, 
 
 139,143 
 
 Grove v. Price, 26 Beav. 103 109 
 
 Guild, Gibbs v., 9 Q.B.I). 59 25 
 
 Gullick V. Wolmerhausen, (1893) 2 Ch. 514 61 
 
 Gurney, In re. Mason v. Mercer, (1893) 1 Ch. 590 44 
 
 Gye, Knox v., L.K. 5 H. L. (556 2, 49 
 
 Haliett v. Hastings, In re Lady Hastings, 35 Ch. I). 94 86 
 
 Haliiday v. Ward. 3 Camp. 32 92 
 
 Halter, Molson's Bank v., 18 S.C.R. 88; 16 A.R. 323 51 
 
 Harcourt v. White, 28 Beav. 303 3, 10 
 
'I'AI'.I-K OK CASKS. Will 
 
 llar.li>ty, \V<k.i1 v.. li ('(ill. CC. '^2 M 
 
 Ihirkin. K'dl.iiisnii v., (lH'J<i) L> Ch. 4ir> 'H,'MJ)0,<iO 
 
 lliiriis V. Ihivris, (No. 12) '2\) Jif-av. 110 J* 
 
 ilii I'is III V. lliirrisoii, 14 dr. r)S() ll«'l 
 
 iliin'isdii V. L'iiiuliill, !» Hiiro, :!!)7 HI 
 
 Iliustoi; V. Ti'iiisoii, In re Cross, 2(» Cli. 1). 109 ;!,H,9, T)!' 
 
 Iliirwood, Isaacson v., I .W. :i Ch. Apj). 22.') M 
 
 llaslar, Tatani v., 'JU (^H.D., :i4r> 124 
 
 Ha fmf,'s. Lady. In re, llallctf v. Hastings, X) Cli. D. !M 86 
 
 llawUfslpy. Francis v., I Kl. N: HI. 1052 d'.i 
 
 llaycratt v. Creasy, 2 Kast, KtS 20 
 
 Head V. (Jonld. (1808) 2 Cli. 2r)(l U 
 
 Heard. Thome v., (ISSK!) :\ Cli. ."liiO : (1S04) 1 Ch. :)!».-); (IHOf)) 
 
 A.C. 4!C) H, Ki, 1!», 23, 24, 2.'), 2(i, 20, :!2, ;iO, 42, .')(), M, (il , 7"), Or> 
 
 Heiron. Metrojiolitan Bunk v., L.H. '> Kx. D. :!10 2, H, 
 
 Hennintr, Marquis of Clnnricarde v., :iO lU-av. 17") 0,27 
 
 Hess Mf<r. Co., In re, Kd<,'ar v. Sloan, 2:i S.CK. 044; 21 A.K. 0(5 40 
 
 Hickman. Haves v., :i() lieav. ]:u\ 112 
 
 Hill, F.dey v., 2 H.L.C. 28; 1 I'h. :i!)!) r), 49 
 
 Hill, Trinihie v., f) A.C., :542 a7 
 
 llinnian. In re Crowter, Crowter v., 10 O.K. 159 ;J5, 107 
 
 Hod-res. In re, 1 (Jr. 2S0 7 
 
 Hod^'son V. WUliamson, l."> Cli. I). 87 80 
 
 Holmes V.Moore, 2 Moil. :!28 110 
 
 Holland. Clack, v.. 19 Beav. 202 134,135,144 
 
 Holt, in re. lloll v. Holt, (1897) 2 Ch. 525 113 
 
 Hotham, Hpickerell v., Kay 009 4 
 
 Hoii-rhajn. Clark v., 2 R. & C, 149 93 
 
 Hoiifj:hton v. Bell, 23 S.CK. 498 5 
 
 llovenden v. Lord Anncsley, 2 8oh. & Let'. 030 1 
 
 How v. Harl Winterton, (1890) 2 Ch. 020 2, 13, 40, 48, 49, 51, 53, 54 
 
 55, 50, 58, 01, 03, 05, 70, 77, 78, 90, 97, 98, 170 
 
 Howell v. Yoiiii^', 5 B. & C. 259 01,08,80 
 
 Hnfihes, Baliin v., 31 Ch. I). 390 34 
 
 Hiifrhes V. Empson, 22 Beav. 181 107 
 
 Hughes, Urimth v., (1892) 3 Ch. 105 113 
 
 Hughes V. Twisden, 55 L..T. Ch. 481 33, 58 
 
 Hulkes, In re, Powell v. Hulkes, 33 Ch. 1). 552 112 
 
 Humphreys, Green v., 20 Ch. 1). 474 93 
 
 Hurd, Lindsay Petroleum Co., v., L.K. 5 P.C. 221 2,9,26 
 
 Hurst, In re, 03 L.T. 605 112 
 
 Hyatt, In re, 38 Ch. D. 009 118 
 
 Hyde v. Johnston, 3 Scott, 289 30 
 
XXIV TAHLE OF ' ASES. 
 
 Imperial Mercantile Credit Assn., Li(iuidaton; of, v, Colenian, 
 
 L.U. n E, & I. App. ISO 46 
 
 InncH, Williams v., 1 Camp. 'Mi 37 
 
 Isaacson v. Havwood, L.li. ;! Ch App. 225 54 
 
 Ivirafy, In re Turner, Barker v., (1897) 1 Ch. alio :}4, 77, s,"), 110, 
 
 IKi, 117, 122, 12:{, 12(i, 129, 144 
 
 Jackson, Kent v., 14 Heav. I584 10 
 
 .lackson, .'erry v.. 4 T.Ii. 516 94 
 
 Jackson, Sharp v., (1899) A.C. 420 52 
 
 Jackson, Whyte & Foole'.s Case, 9 Ch. D. 322 16, 45 
 
 Jenkins, Richardson v., 1 Drew. 477 54 
 
 Jenkins V, Robertson, 1 Eq. Rep, 123 54 
 
 Johnston, Hyde v., 3 Scott, 289 36 
 
 Jones V. Gordon, 2 A.C. 016 124 
 
 Jones V. Morgan, In re Page, (1893) 1 Ch. 308 58, 60, 77 
 
 Kay, In re. Mosley v. Kav, (1897) 2 Ch. 518 .118, 120, 120, 131, 140, 
 
 144, 145 
 
 Kearnan v. FitzSimon, 3 Ridg. L 52 
 
 Kelk, London Financial Association v., 26 Ch. I). 107 45 
 
 Kelly, Ex parte, 11 Ch. D. 311 52 
 
 Kennedy, Lyall v., 14 A.C. 437 60 
 
 Kent V. Jackson, 14 Beav. 384 10 
 
 Keys V. Pollok, 1 Thorn. 81 or 100 37 
 
 Kittridge, Toothe v., 24 S.C.R. i>S7 10 
 
 Knight V. Bowyer, 2 De G. & J. 421 9 
 
 Knight, Moore v., (1891) 1 Ch. 547 26, 33, 35, 43 
 
 Knight V. Roberts, In re Roberts, 76 L.T. 479 .114, 116, 117, 118, 121, 
 
 132, 134, 146 
 
 Knox V. Gye, L.R. 5 H.L. 65u 2, 49 
 
 Kydd, In re Lacy, Royal General Theatrical Fund v., (1899) 2 
 
 Ch. 149 7 
 
 Lacy, In re. Royal General Theatrical Fund, v. Kydd, (1899) 2 
 
 Ch. 149 7 
 
 Lailey, Paterson v., 18 Gr. 13 Ill 
 
 Landed Banking & Loan Co., Gumming v., 22 S.C.R. 246 ; 19 
 
 A.R. 447 118 
 
 Lands Allotment Co., In re, (1894) 1 Ch. 616 5, 13, 14, 15, 20, 25, 
 
 47, 65, 121 
 
 Leahy v. DeMoleyns, (1896) 1 Ir. R. 206 17 
 
 Learoyd V. Whiteley, 12 A.C. 727 101, 105, 106, 111, 127, 138 
 
 Lee V. Sankey, L.R. 15 Eq. 204 4 
 
 Leed'8 Estate Co. v. Shepherd, 36 Ch. D. 787 45 
 
TAHLE OF CASES. XXV 
 
 Lejfertoii, Bright v., 'J!) Benv. (iO 3 
 
 \jen(rtitt, Wassell v., (1890) I Ch. 5M 39, H4 
 
 Lewellin v. Mackwortli, L' Fa\. Cas. AV>r. 579 8 
 
 Lewis V. Nobbs, 8 Cii. I), 'm 110 
 
 L.fe AsHociation of Scotland v. Siddall, ;j D. F. & J. 58 4 
 
 Lindsay Petroleum Co. v. Huid, L.R. f) P.C. 221 2, 9, 2H 
 
 Liiidsell V. Phillips, In re Powers, 30 Ch. i>. 291 57 
 
 Lingard v. Bromley 1 V. & B. 114 34 
 
 Li(iiiidators of the Imperial Mercantile Credit Assn. v. Coleman 
 
 L.K. (i E. & I. App. 189 40 
 
 Lister v. Htubbs, 45 Ch. D. 1 5 
 
 liock, Burrows v., 10 Vesey, 470 ^2 
 
 London Financial Association v. Kelk, 26 Ch. I). 107 45 
 
 Low V. Gemley, 18 S.C.R. G85 lOG 
 
 Lyall V. Kennedy, 14 A.C. 437 00 
 
 Maedonell, Clark v., 20 O.K. 504 GO 
 
 Macdougall v. Patterson, 11 C.B. 755 145 
 
 Mack V. Mack, 23 S.C.R. 14G 2 
 
 Maekay v. Commercial Bank of New Brunswick, L.R. 5 P.C. 410... 30 
 
 Mackenzie Trusts, Re, 28 O.R. 312 110 
 
 Mackworth, Lewellin v., 2 Eq. Cas. Abr. 579 8 
 
 Magrath, Taylor v., 10 O.R. GG9 144 
 
 Mara v. Browne, (1895) 2 Ch. 09; (1896) 1 Ch. 199 5, 20, 33, 43, 
 
 50, 58, GO 
 
 Marquis of Cholmondeley v. Clinton, 2 J. & W. 192 7 
 
 Marquis of Clanricarde v. Henning, 30 Beav. 175 6, 27 
 
 Marshall, Blue v., 3 P. Wms. 381 108 
 
 Martin, Chnrcher v., 42 Ch. D. 312 
 
 Mason v. Mercer, In re Gurney, (1893) 1 Ch. 590 44 
 
 Maulson, City Bank v., 3 Chy. Ch. 334 107 
 
 Mercer, In re Gurney, Mason v., (1893) 1 Ch. 590 44 
 
 Metropolitan Bank v. Heiron, L.R. 5 Ex. D. 319 2, 8, 9 
 
 Metropolitan Board of Works, In re Bellamy and, 24 Ch. D. 387.... 109 
 Metropolitan Board of Works, In re Flower and, 27 Ch. D. 592... 107 
 Miall V. Pearce, In re Second East Dulwich etc. Building Soc. 
 
 79 L.T. 720 ...123, 130 
 
 Mickleburgh v. Parker, 17 Gr. 503 107 
 
 Middleton, Wood v., 79 L.T. 155 117 
 
 Millikin v. Snelling, In re Colyer, 55 L.T. 344' 108 
 
 Mitchell V. Ritchey, 12 Gr. 88; 11 Gr. 511 107 
 
 Molson's Bank v. Halter, 18 S.C.R. 88; 10 A.R. 323 51 
 
 Montgomery, Ashdown v., 8 Man. Rep. 520 109 
 
 Moodie v. Bannister, 4 Drew. 432 92 
 
XXVl TAIJLK OK CASFX 
 
 Moore, (iooderlmin v., Ill O.H. S(i ll!l, 14(i 
 
 Moore, Holmes v., 2 Moll. li'JS 110 
 
 Moore v. Kiii^'lit. (IH'M) I <'li. 547 2(5, IW, :J5, 4:J 
 
 Moore, Wilson v., I M. & K. ;]:{7 •. 4 
 
 Morgan, In re I'lifye, Jones v., (IHlKt) 1 Ch. ;J08 r)H, 60, 77 
 
 Moslev V. Kiiv, In re Kiiy, (lHil7) L' Cli. r)18 118, I'JO, I'Jd, 131, 
 
 140, 144, 14.-) 
 
 .MoniitstcplicM V. Jirooke, :t 15. iV Aid. 141 912 
 
 Munlock V. I'itts, .liiines 1258 37 
 
 .Miirriiy, ('ol<iuhoiin v., lit Can. L.T. 'J41 37 
 
 McCiirter V. MeCnrter. 7 O.W. 243 10(1 
 
 MeDonnM v. Klliott. I'J ().!'.. [»8 n? 
 
 MeDonuld, Smytli v., Coehrtin, 8() 37 
 
 MeDonsall, McKeen v., 2 Thorn. 403 37 
 
 .^[eKeen v. McDon-rall, 2 Tliom. 403 37 
 
 Mel.jitcliie, In re, :w O.K. 179 35 
 
 Mc'.Malion, KoMin v.. IS O.K. 219 37, 92 
 
 McTavisli, Allan v., 2 A.W. 27,S 57 
 
 New Sombrero Phosphate Co., Erlanper v., 3 A.C. 121H 2, 9, 4G 
 
 Nixon, (ireen v.. 215 Beav. r)35 20 
 
 Nobbs, J.ewis v., S Ch. D. r)91 110 
 
 Norris v. Wright. 14 Beav. 291 110 
 
 *^->rth flastern Railway Company, Ecclesiastienl Commissioners 
 
 v.. 4 Ch. D.Slo '. ' 20 
 
 Oakes v. Smith, 17 Gr. (500 10 
 
 Ontario Bank. Saderqnist v., 15 A.K. 009; 14 O.K. 580 9 
 
 Ormond, Blair v., 1 l)e G. & Sm. 428 9 
 
 Osborne, Bnlli Coal Mining Co. v., (1899) A.C. 351 .1, 2, 3, 26, 55, 60 
 
 OwenP, In re, 47 L.T. 61 108 
 
 Oxford Benefit Bdg. Soc, In re, 35 Ch. I). 502 16, 45 
 
 Page, In re, Jones v. Morgan, (1893) 1 Ch. 308 58, 60, 77 
 
 Palmer, Burt v., 5 Esp. 145 37 
 
 Pardo V. Bingham, L.li. 4 Ch. App. 735 98 
 
 Parker, Mickleburg v., 17 Gr. 503 107 
 
 Patrick v. Simpson, 24 Q.B.I). 128 6 
 
 Patriokson, Daere v., 1 D. & Sm. 185 7 
 
 Paterson, Lailey v., 18 Gr. 13 Ill 
 
 Patterson, Macdougall v., 11 C.B. 755 145 
 
 Pearce, Miall v.. In re Second East Dulwieh etc. Bdg. Soc, 79 
 
 L.T. 726 123, 130 
 
TAIILK ol' CASKS. XW 11 
 
 IVcU, l»<Tiy v., 14 A.C. :VM :tl 
 
 I'cnnofatlKT, Pliillips v., 18 Ir. K. Kq. 4H0 U, 2(5 
 
 iViirhyii (lionl). DiiwkiiiH v., 4 A.(;. T)! US 
 
 Pt'i'ley V, SiKiw, Hiisscll's \.S. K(|. D. :\7;\ 10, 110, 14(> 
 
 Perry v. Jackson, 4 T.H. olU 1)4 
 
 Perrins v. Ik-Uaniv, (1809) 1 Ch. 707: (18!)8) 2 Ch. 527 .100. li:J, 
 lis. I'Jl, r_"_', ILT), l'J7, 136, i:if», 140, 141. 14'J, I4:i, 14;") 
 
 Peters v. Hrnwn, 4 Ksi|. 4(i i»2 
 
 Petre V. Petre, 1 Drew. 'M:\ Tm 
 
 Phillips V. Pennefather, S Ir. K. Eq. 480 2, 2(i 
 
 I'hiiiips V. I'hiilips. Fvceiii. Cli.Cu. 11 100 
 
 Phillips, In re I'owers, Linclseil v., 'M) Ch. D. 201 ITu 
 
 Pierce, Beck v., 23 Q.B.D. aid Sfi 
 
 Pitts, JMurdock v... lames, 2r)8 ;J7 
 
 Pocock. Smith v.. 2 Dr. 107 f) 
 
 Poilok, Keys v.. 1 Thorn. 81 or 109 'M 
 
 Poole, .laeksnii i^c Wliyto's (^ase, Ch. D. 322 10, 45 
 
 Poole, Kmith v., 12 Sim. 17 02 
 
 Pott V. Clegp, l(i M. & W. 32! 3(1 
 
 Poulett (Knrl). In re Somerset, Somerset v., (1804) 1 Ch. 231 ...11 , 88, 
 
 i){l, ()1. 03, 07, 80, 01, 113, 177, 170 
 
 Powell V. Ilulkes, in re llulkes, 33 Ch. D. 552 112 
 
 Powers, In re. Lindsell v. Phillips, 30 Ch. D. 201 57 
 
 Price, Grove v.. 20 Beav, 103 100 
 
 Prinfjle, Fitzfjerald v., 2 Moll. 534 lid 
 
 Quayle, Cocker v., 1 Kuss. & My. 535 112 
 
 Quinn, Rogers v., 20 L.R. Ir. 130 03 
 
 Radford, Browne v., W.N. (1874) 124 3 
 
 Randall v. Ph-rington, 10 Vesey 427 
 
 Randall, Harrison v., Hare, 397 Ill 
 
 Ravenshaw v. Barker, In re Barker, 77 L.T. 712 101, 111. 117, 122. 
 
 137, 139, 144 
 
 Rawlins v. Wickham, 2 De G. F. & ,1. 104 27, 32 
 
 Reckitt, Shaw v., (1803) 1 Q.B. 779 145 
 
 Redman, Fuller v., 20 Beav. 014 93 
 
 Richards v. Bank of Nova Scotia, 20 S.C.R. 381 20, 31 
 
 Richardson v. Jenkins, 1 Drew. 477 54 
 
 Ridgard, Bonney v., 17 Vesey 97, 4 Bro. CO. 138 4 
 
 Rines, Smith v., 2 Snmn. 338 110 
 
 Ritehey, Mitchell v., 12 Gr. 81; 11 Gr. 511 107 
 
 Roberts, In re Davies, Ellis v., (1898) 2 Ch. 142 40, 77, 170 
 
 Roberts, In re. Knight v. Roberts, 70 L.T. 479 114, 110, 117, 118. 
 
 121, 132, 134, 140 
 
xxvm 
 
 TAIJLE «H' (A.SES. 
 
 Uotiorts V. Tmistiill, 4 Han- 'J(iH 10 
 
 Koh.Tlsoii V. Hiirrill, 1]'J AM. '.iM 02,93 
 
 KohtTtsoii, JcTikiiis v., 1 K((. lio\y, 123 54 
 
 UohiiiHoii V. Harkiii, (1H!)«!) 2 Ch. 415 8, 34, SO, 60 
 
 H()))iiisoii V. liohiiiHoii, II HtMiv. 371 Ill 
 
 Uol.liii V. McMalioM, IH O.K. HI!) 37, !»'_' 
 
 Uojjm-H V. (.^iiiiiii, 1]() L.K.I.U. VMl <13 
 
 Kolfe V. (}rHf,'ory, 4 De G. .1. & S. 57(5 4 
 
 Hollasoii, In rn, Holt v. Holt, (18!)7) 2 Ch. 525 113 
 
 RoHs, Cliiirlotte Co. Bank v., 5 Allen (527 37 
 
 Kowe, In re, W.N. (188!)) Kil 7 
 
 Koyul General Theatrical Fund v. Kydd, In re Lncv, (1899) 2 
 
 Ch. 149 '. 7 
 
 liuHt, Billings v., 1 Thorn. 01 or 88 37 
 
 Sadeniuist v. Ontario Bank, 15 A.U. ()09; 14 O.K. 586 9 
 
 Sale Hotel and Botanical Gardens Co., Ltd., In re, 4(J W.li. 314, 
 
 017 5, 8, 19, 20 
 
 Salter V. Cavanagh, 1 Dr. & W. 008 G 
 
 Sankey, Lee v., L.K. 15 Eq. 204 4 
 
 Sawyer v. Sawyer, 28 Ch. D. 005 113 
 
 Sculthorpe v. Tipper, L.K. 13 Eq. 232 107 
 
 Seaman, Vernon v., Uuss. N.S. Eq. D. 190 108, 146 
 
 Second East Dulwieh etc. Bid. Soc, In re Miall v. Pearce, 79 
 
 L.T. 720 123, 130 
 
 Secord v. Costello, 17 Gr. 328 5 
 
 Sewell, Brown v., 11 Hare 53 102 
 
 Sharp V. Jackson, (1899) A.C. 420 52 
 
 Sharp V. Wright, 28 Beav. 150 10 
 
 Sh'rpe, In re, (1892) 1 Ch. 154 15 
 
 Shaw V. Reckitt, (1893) 1 Q.B. 779 145 
 
 Shepherd, Leeds Estate Co. v., 36 Ch. D. 787 45 
 
 Siddall, Life Association of Scotland v., 3 D.F. & J. 58 4 
 
 Simpson, Patrick v., 24 Q.B.D. 128 6 
 
 Sinclair v. Wilson, 20 Beav. 331 52, 53 
 
 Singlehurst V. Tapscott Steamship Co., Ltd., W.N. (1899) 133 121 
 
 Sloan, In re Hess Manfg. Co., Edgar v., 23 S.C.R. 644; 21 A.R. 66 46 
 
 Smart, Tanner v., B. «& C. 603 93 
 
 Smith V. Clay, (Note to Deloraine v. Brown) 3 B.C.C. 639 66 
 
 Smith, Oakes v., '7 Gr. 660 10 
 
 Smith V. Pococke, 2 Dr. 197 5 
 
 Smith V. Poole, 12 Sim. 17 92 
 
 Smith V. Rines, 2 Sumn. 338 119 
 
 Smith V. Smith, 13 Gr. 81 110 
 
TAIIM; <tl" (ASKS. XXIX 
 
 Smith, Stiinifonl HaiikiriK Co. v., (IHII'J) 1 C^.H. 7»i."i IKl 
 
 Smith V. Stuart, In re Stimrt, (1.407) 'J <'h. .'iHIJ IKI. 117. I'JO. I'Jl, 
 
 lUli, rji», 131, i:t}» 
 
 Smyth V. McDoimhl, Cochruii 8(5 'M 
 
 SiielliiiK, InreCoIIyor, .Miilikiu v., 5.') li.T. :»44 lOH 
 
 Snow, INtI.'V v., Husa. N.S. Kq. I). a7:» 10, 110, 14(i 
 
 Snyfi.T, St.'wart v., :i() O.K. 110 9, .'10, 41, SK, (11, HO, llil 
 
 Soar . AHhwell, (IHiKJ) 12 (^.H. ;{i)0 ;i, 4, 5, (1.') 
 
 Somrr^'t, III re SomiTwet v. Earl Poulftt, (18!)4) 1 <'h. 'J:tl 11, 88, 
 
 M, (il, (hi, 07, HO, ill, li:{, 177, 179 
 
 SiuMKht, In If, Speight V. (iannt, 22 Ch. D. 727; 1) A.C. 1 ...34, 35, 10(5 
 
 Spickcroll V. Hothnni, Kay (!(!{) 4 
 
 Sporio V. Rarnnhy, i:t W.IMSl 112 
 
 Spratt V. Wilson, 1!) O.K. 28 110 
 
 Spurrier, Dann v.,G It.li. 119 10 
 
 Stamford Banking' Co. v. Smith, (IH()2) 1 Q.B. 7(55 93 
 
 Stephens v. Beatty, 27 O.K. 75 58, (51, 95 
 
 Stewart V. Stewart, 15 Ch. I). 544 7 
 
 Stewart v. Snyder, 30 O.K. 110 9, 30, 41, 58, (51, 80, 119 
 
 Stone V. Stone, L.R. 5 Ch. App, 74 4 
 
 Strathraore, Bowes v., 8 Jur. 92 108 
 
 Stuart, In re. Smith v. Stuart, (1897) 2 Ch. 583 110. 117, 120, 121, 
 
 12-, 129, 131, 139 
 
 Stubbins, Ex parte, 17 Ch. I). (59 51 
 
 Stubbs, Lister v., 45 Ch. D. 1 5 
 
 Sturt, Ex parte, L.R. 13 Eq. 309 .52 
 
 Sutton V. Sutton, 22 Ch. I). 511 57 
 
 Swain, In re, Swain v. Bringeman, (1891) 3 Ch. 233 2, 0, 00, 01, 
 
 (53, 79, 95 
 
 Tanner v. Smart, G B. & C. 003 93 
 
 Tapseott Steamship CJc, Singlehurst v., W.N. (1899) 133 121 
 
 Tapson, Fry v., 28 Ch. D. 208 100 
 
 Tatam v. Hasiar, 23 (^,B.D. 345 124 
 
 Taylor, Ex parte, 18 (^.B.D, 301 51, 53 
 
 Taylor, Davy v., 21, .34 
 
 Taylor v. Magruth, 10 O.R. 009 144 
 
 Tempest, Wynne v., 13 T.L.R. .300: W.N. (1K97) 43. .109, 122, 123, 129 
 
 Tenison, In re Cross, Harston v., 20 Ch. D. 109 3, 8, 9, 52 
 
 Thomas, Baldwin v., 15 Gr. 119 '08 
 
 Thomson v. Eastwood, 2 A.C. 215 2, 10, 20 
 
 Thome v. H-ard, (1893) 3 Ch. 530; (1894) 1 Ch. 599; (1895) 
 
 A.C. 495 8, 13, 19, 23, 24, 25, 20, 29, 32, 39, 42, 50, 58, 01, 75, 95 
 
 Thwaite, Dean v., 21 Beav. 021 3 
 
 Tipper, Sculthorpe v., L.R. 13 Eq. 232 107 
 
XXX TAIlLt: (»1' CASES. 
 
 ToDtlic V. Kittridge, '_>4 S.C.K'. L'S7 10 
 
 Torkingtoji, Wanier v., 4 L..I. X.S. Ch. lOli 110 
 
 Towiish.-nd V. TowiisliL'iid, 1 Bro. ('.(". .'(oO 4 
 
 Trepannier, Ferrier v., 24 S.C.H. H() 10« 
 
 Triiiihlc V. Hill, ii AC. ;!4l! ' 57 
 
 TuiiiiiflinV, Wt'stmorelimd v., W.N. (IHdO) 182 54 
 
 Tunst.ill, KobertH v., 4 Hare 20(5 10 
 
 Turner, In re, Barker v. Ivimey, (18!)7) 1 Ch. 536 :!4, 77, 85, 110, 
 
 11(5, 117, 122, 12:3, 120, 129, 144 
 Twisden, Hughes v., 55 L.J. Ch. 481 ;j;}, 58 
 
 Udell V. Atherton, 7 H. & N. 172 ;J0 
 
 Vawdry, Vernon v., 2 Atk. Ill) 52 
 
 Vernon V. Seaman, Russ, N.S. p]q. 1). 1!)0 IdS, 14() 
 
 Vernon v. Vuwdry, 2 Atk. 119 52 
 
 Vic'kery v. Evans, 'S,i Beav. 370 140 
 
 Vyse V. Foster, L.R. 8 Ch. App. 309 108 
 
 Wade, Beckford v., 17 Vesey .S7 4 
 
 Wade, Collings v., (1S9G) 1 Ir. K. 340. .21, 40, 44, 50, 58, (iO, 62, 69, 
 
 75, 78, 79, 82, 88, 90 
 
 Waller, Ghost v., 9 Beav. 497 lOD 
 
 Want V. Campain, 9 T.L.R. 254 58, 59, 79, 91, 176, 177 
 
 Ward, Halliday v., 3 Camp. 32 92 
 
 Warner V. Torkington, 4 L.J. Ch. (N.S.) 193 110 
 
 Warrington, Booth v., 4 Bro. C.C. 163 3 
 
 Wassell V. Leggatt, (1896) 1 Ch. 554 39, 84 
 
 Waterman v. Will, Russ N.S. Eq. I). 197 10 
 
 Watkins, Whitwam v., 78 L.T. 188 16, 20, 65 
 
 Watson, Dooby v., 39 Ch. 1). 178 5 
 
 Weall, In re, 42 Ch. 1). 678 105 
 
 Westmoreland v. Tunniclifi'o, W\N. (1869) 182 52 
 
 Whalley, Bleazardv., 2 W.R. 608 108 
 
 Whitc'ombe v. Whiting, Douglas 652; Smith's L. Cas., Vol. 1., 
 
 p. 575 36 
 
 White, Bustross v., 1 Q.B.I). 423 145 
 
 White, Hareourt v., 28 Beav. 303 3, 10 
 
 Whiteley, Learoyd v., 12 A.C. 727 101, 105, 106, 111, 127, 138 
 
 Whiting, Whitcombe v., Douglas 652: Smith's L. Cas., Vol. I., 
 
 p. 575 3(i 
 
 Whitwam v. Watkins, 78 L.T. 188 16, 20, 65 
 
 Whyte, Poole & Jackson's Case, 9 Ch. I). 322 16, 45 
 
TAIiLK OF CASES. XXXJ 
 
 Winnl V. fJable, 8 Gr. 4r)S HO 
 
 Wickhani, I^awlins v.. L' De (;.F. & .F. 304 27, :JL> 
 
 Wilcox, Ziininerniiui v.. 1!) Ciiii. I^.T. ;{;J7 108 
 
 Wiles V. Gresham, 12 Drew. '2'>H HI 
 
 Will. Wjitorinan v., Kiiss. N.S. K([. I). 197 10 
 
 Williiuns, lure, 22 A. K. 19() 143 
 
 Williams v. Junes, I Camp. 3(J4 37 
 
 Williamson, Jlodgson v., 15 Ch. ]). 87 gy 
 
 Wilson V. Moore, 1 M. & K. 337 4 
 
 Wilson, .Sinclair v., 20 Beav. 331 -,2 ')3 
 
 Wilson, Sprattv., 19 O.K. 28 'ijO 
 
 Winterton (Earl), How v., (189(5) 2 Ch. ()2() 2, 13, 40, 48, 49, 51. 
 
 53, 54, 55, 50, 58, 01, 03, 05, 70, 77, 78, 90, 97, 98, 170 
 
 Wolmerhausen V. (iullick, (1893) 2 Ch. 514 (il 
 
 Wood V. JIardisty, 2 Coll. C.C. 542 r,^ 
 
 Wood V. Middleton, 79 L.T. 155 j'l7 
 
 Woods' Ships' Co., In re, 02 L.T. 700 K;, 4,-i 
 
 Wright V. Bell, 18 A.K. 25 !.'.'''Z .. ' 5 
 
 Wright, Xorrisv., 14 Beav. 291 1]0 
 
 Wright, Sharp v., 28 Beav. 150 jO 
 
 Wynne v. Tempest, 13 T.L.K. 300: W.N. (1897) 43 109, 122, 123, 129 
 
 Voiide V. Cloud, L.R. 18 fJq. 034 103 
 
 Voung, Howell v., 5 B. t^c C. 259 01,08,80 
 
 Zimmerman v. Wilcox, 19 Can. L.T. 337 
 
 108 
 
■»l'"»J -V* J'"-'-'" 
 
 Limitations of Actions 
 
 AGAINST TRUSTEES. 
 
 51 and 52 Victoriae (Imperial), cap. 59, sec. 8. 
 
 Revised Statutes of Ontario (1897), cap. 129, sec. 32. 
 
 52 Victoriae (Nova Scotia), cap. 18, sec. 17. 
 
 CHAPTER I. 
 
 Pre-existixo Law. 
 
 It is soiaowluit tnte learning- that, althouo-h Limitations 
 not witliin tlie Statutes of Limitation, Courts of "' ''*"'^'''" 
 E<iuity have held themselves to be Avithin the spirit 
 and meanino- of those enactments (1). In cases 
 within their purview, e.piity follows the law—not. 
 says Lord Redesdale, by analogy merely, l)ut, in 
 reality, in obedience to the statutes. In the opinion 
 of Mr. Horace Davey, Q.C. (now Lord Davey), 
 Coui-ts of Ecpiity are bound to act in obedience to 
 the Statutes of Limitation only in cases within their 
 ancillary jurisdiction ; when exercising- concurrent or 
 exclusive jurisdiction they apply statutory liniita- 
 
 (1) ISuin Coal Miunu, Co. v. Osborne, (1899) A.C. at n 'JG^- 
 nmumdai V. Lord Ainwsh'!,, -' Wch. & Lef. p. 630. 
 
2 I'HE-EXISTINO LAW. 
 
 tioiiH by aii{il()<;y o)ily(l). In cases of conciirront 
 jurisdiction it has been stiHjnuously, tliout;li not 
 successfully, ai'fifued, . that the Statutes must be 
 regarded as obligator}^ (2). 
 
 Trusts, Trusts, however, are within the exclusive jui'is- 
 
 diction of Courts of Eijuity. Tiiey are pecuiiai-ly 
 creatures of equity, not cognizable at law, and, using 
 the word " apply " in a sense restricted and narrow, 
 though no doubt accurate, Mr. Justice Kekewich 
 says that, before IHHH, no Statute </: Limitations 
 
 l^iuiitations, applied to breaches of trust (8). Nevertheless, 
 
 acquiescence j. •-. • • i 
 
 and laches C^ourts 01 Lqiuty, actnig by analogy to the Statutes 
 
 as defences p t • -^ i- ,• i- ^ i- 
 
 for trustees, oi J^nnitation, or upon presumptions or releases trom 
 
 lapse of time, or upon grounds of public convciiiene*;, 
 
 or because of acijuiescence or laches on the j)art of 
 
 the plaintiff', will in many cases protect a defendaiit 
 
 trustee against stale demands (4). Ut sit /inis 
 
 litiam is deemed a desideratum in e/juity, just as 
 
 it is at law. Like claims in respect of concealed 
 
 (1) Law Journal (1884) p. 101. 
 I 
 
 {2) Bum Coal Mining Co. v.Oshonic, (1899) A.C. 361-2; 
 
 see Knox v. Gi/e, L.R. 5 H.L. 056, 674; Metropolitan Hank v. 
 
 Heiron, L.R. 5 Ex. D. 319, per James, L.J., p. 3'j:j; per Cotton, 
 
 L.J., p. 325. 
 
 (;5) How v.Earl Wintcrton, (1896) 2 Ch. 632; but see 3 & 4 
 William IV., cap. 27, post; R.S.O. (1897) [cap. 133, sees. 30 
 and 24; see Appendix A; see also per Romer, J., In re Swain, 
 Swain v. Jiringeman, (1891) 3 Ch., at p. 241. 
 
 (4) Pliillips V. Penncfather, 8 Jr. R, Eq. 486 ; Thomson v. 
 Eastwood, 2 A.C. 215, 236, 239, 257; Erlangcr v. New Sombrero 
 Phosphate Co., 3 A.C. 1218, 1279; Lindsai/ Petroleum Co. v. 
 Hurd, L.R. 5 P.C. 221, 239; Mack v.Mack,'23 S.C.R. 146. 
 
PREEX1STIX(J LAW. 3 
 
 frauds (1), " because the defendant's conscience is so Express 
 
 trusts, 
 affected that he ouglit not to be allowed to avail 
 
 himself of the Statute or lapse of tune," the rights of 
 cestuis qui triistent against their trustees u'.:der 
 express or direct trusts, have been ever consistently 
 dealt with by the Court of Chancery as being outside 
 the bounds and the reason of the doctrine of limita- 
 tions. Subject to the equitable doctrine as to laches 
 and actjuiescence, in cases in which the claim was for 
 damages, the trust fund being no longer in exist- 
 ence (2), such claims were, prior to 1888 (3), treated 
 w^ithout regard to lapse of time. Where the trust 
 property still exists in specie, neither laches nor 
 .acquiescence furnish a defence (4). 
 
 " That time (by analogy to the Statute) is no bar Constructive 
 
 trusts, 
 in the case of an express trust, but that it will be 
 
 a bar in the case of a constructive trust," says 
 
 Bowen, L.J., in Socw v. Ashwell (5), " is a doctrine 
 
 which has been clearly and long established." In 
 
 the practical application, however, of this apparently 
 
 well-defined rule of equity, " the authorities do not 
 
 seem to have drawn with any precision the line 
 
 (1) Booth V. Warrington, 4 Bro. P.C. 1G3; Dean v. Tliivaite, 
 21 Beav. 6121; Bulli Coal Mining Co. v. Osborne, (1899) A.C. 351. 
 
 (2) Harcourt v. White, 28 Beav. 303, 308; Bright v. Legcrlon, 
 29 Beav. 60; Green's Case, L.K. 18 Eq. 428, 432. 
 
 (3) Nova Scotia, 1889; Ontario, 1891. 
 
 (4) Browne v. Radford, W.N. (1874) p. 124 ; In re Cross, 
 Harston v. Teuison, 20 Ch. D. 109. But see Angeil on Limita- 
 tions, 5th ed., p. 165. 
 
 (5) (1893) 2 Q.B.395. 
 
4 l'HE-EXISTIX«i F.AVV. 
 
 ol' distinction betwi'on cxpri'ss and conHtrnctivo 
 
 trusts " ( I ). Tlu'i't,' {ir(! cases not i"allin<; strictly 
 
 within rithcr class, some of which have been treated 
 
 as within the class in respect of which a Statute of 
 
 Limitations will not be allowed to })e vouched, and 
 
 some within the class in respect of which such a 
 
 I'trsons hclil statute may be vouched (2). Thus, althoujjjh obviously 
 
 I'l'MponsiMt' 
 
 as express not express or direct trustees, in the sense of havinjj 
 
 trustees. " • i i i 
 
 i)een "ni terms nonnnated to be the trustees ot trusts 
 
 created in expressed terms written or verbal " (.S), 
 persons in the followini;; positions have been held 
 subject by Courts of E([uity to the responsibilities and 
 risks inciUTed by trustees of express or direct trusts: — 
 persons who have assumed to act, and have acted, as 
 trustees — "conduct e(]uivalent to a written declara- 
 tion" (4); persons knowino-ly participatino' in fraudu- 
 lent acts of express trustees (5); persons who have 
 received property subject to a trust and have dis- 
 posed of it inconsistently with terms of that trust (jf 
 whicli they are cognizant ((J). Whatever the variety 
 
 (1) (1893) 2 Q.B. at p. 401, per Kay, L.J. 
 {2} S.C. at p. 393, per Lord Esher, M.R. 
 
 (3) Idem. 
 
 (4) Life Association of Scoflaiid v. Si(hhiU, 3 D. F. & J. ')», 
 at p. 72. 
 
 (5^ Barnes v, Addi/, L.R. 9 Ch. 244. Compare with lionneij 
 V. Riihiiml, 17 Vesey 97, 4 Bro. C.C. 138; lloifc v. iireyorij, 4 
 DeG.J. & S. 570. 
 
 (<)) SfuekereU v. Hotliain, Kay 009; Stone y. Stone, L.K. 5 Ch. 
 App. 74: Lee V. Sanlccj/, L.K. 1.") Eq.204; fnisoii v.Moorr, 1 M. 
 & K. 337; liruhiman v. GUI, 24 Beav.302. Compare Townslinni 
 V. Tou)islieii(1, 1 Bro. C.C. 550, and Beckford v. Wude, 17 Vesey 87. 
 
l*|{E-i;.\l.sTI\(J LAW. 5 
 
 and iiieoiisistciicy in the laii^ua^^e usetl about con- 
 structive trusts (1), it has been establislied beyond 
 
 doubt that a person occup^'ini;' a fiduciary rehition. l>«poNit!u-ie8 
 
 of trust 
 who has ])roperty deposited witli liini on the strength propt^rty. 
 
 of such n-lation, is to be dealt with as an express, 
 
 and not merely a constructive trustee of such 
 
 property" (2>. Fiduciary accents of every description 
 
 who, as such, become <k'positaries of property are 
 
 within the purview of this dictum (8). 
 
 But defendants against whom claims are made Trust must 
 founded upon alleged trusts, are entitled to liave the ma("ie''out^. 
 existence of such trusts clearly established before the 
 plaintiti' can claim the benerit of the rule excludintr 
 them as trustees from the benefit of all Statutes of 
 Limitation. Lord Cottenham so held in Atttn-nci/- 
 General v] Fishmongers' Co. (4). 
 
 There is an all important distinction to be borne itnpiied 
 in mind in dealing wdth trusts " by implication." ^"'^^^• 
 These may be express or constructive. Trusts Express. 
 
 (1) As a recent instance compare judgment of Liiidley, L..T., 
 ():}l-2, with that of Kay, L.J., 638-9, lit re Lands AUotmcut Co., 
 (1894) 1 Ch. 61(5. 
 
 (2) Soar v. Jshwell, L.R. (1893) 2 Q.B. at p. 397, per 
 Bowcn L.J, 
 
 (3) Doobji V. Watson, 39 Ch. D. 178; Smith v. Poeocke, 
 2 Dr. 197. But see Mara v. Browne (1896) 1 Ch. 199 ; (1895) 
 2 Ch. 69; and for a case without the principle see In re Sale 
 Hotel and Botanical Gardens Co, Ltd., 46 W.R. at pp. 314 and 
 617; see also Lister v. Stnbh.s, 45 Ch. D. 1; Folei/ v. Hill 2 
 H.L.C. 28, 35; Coyne v. Broody, 15 A.R. 159; Cook v. Grant, :i2 
 C.P. at pp. 521-2; Secord v. Costello, 17 Gr. 328; Hou(jhton v. 
 Bell 23 S.C.R. 498, sm6 mm. IVriyht v. Bell, 18 A.R. 25. 
 
 (4) 5 My. & Cr. 16. 
 
6 l'UK-KXlSTIX(i LAW. 
 
 infeni'd from the laiitjuatjfo of a written instrunient 
 an<l (liscoverablu on the face of it, tiiou^li implied 
 ratlu'r than oxpreased, are nevertheless invariably 
 
 Constnu- treated by Courts of Ecjuity as direct or express 
 trusts : M'hile, crusts established only by the applica- 
 tion of ('(juitable principles to the position or to the 
 acts and conduct of parties, — " trusts to be made out 
 by circumstances" — are ret^arded as constructive only 
 (1), and the trustees thereof have been held entitled 
 to the shelter of a period of limitation. Thus the 
 resultini;; trust of surplus rents, in a case where land 
 has been devised to a person upon trust to pay out 
 of the rents certain annuities insufficient to exhaust 
 the income, is inferrable from the deed, and there- 
 fore, though a trust by implication, is an express 
 trust (2), while the resulting trust upon a failure of 
 a gift to trustees for a charity within the Statute, 9 
 Geo. II., cap. 3G, being a trust, not upon but " against 
 the deed " or other instrument, and " due only to the 
 fact that it is void," is, (if a trust at all) constructive 
 merely (3). The former trusts are created by the 
 words of the declarant, the latter by operation of 
 
 Executors. law. An executor, though his testator may, of 
 course, by apt language so constitute him (4), is not 
 
 (1) lianuer v. Jierridgc, 18 Ch. D. at p. 269; Marquis of 
 Clanricarde v. Henuing, LJO Beav. 175. 
 
 (12) Salter v. Cavamgh, 1 Dru. & Walsh 668; Patrick v. 
 Sinipsou, 24 Q.B.D. 128. 
 
 (3) Cliurcher v. Martin, 42 Ch. D. at p. 319; see too Banner 
 V. Berridge, 18 Ch. D. 254. 
 
 (4) Cameron V. Campbell, 7 A.R. 3G1; In re Swain, Stvainv. 
 Bringcman, (1891) 3 Ch. 233. 
 
i'KE-i;\isTiN(; i-.\\v. 
 
 virtu tf officii, an eyprt'ss trustee Tor ci-editors, 
 le^^iUees oi- persons entitled under tlie Statute of 
 I)istril)utions. He is only in a loose sense, and ))y 
 opei-ation of law (1), a trustee by implication (2), 
 and as such is not excluded from the benefit of the 
 Statutes of Linntotion, 
 
 The Imperial Statute, .S & 4 Will. IV., cap. 27 (3), 3 & 4 Will. 
 
 IV. Imp., 
 
 makes certain provi.sions, detinin^- and extendini^', cap. 27. 
 rather than limiting- (4.), the ritjhts of ccstai.9 que 
 triMti'iit in actions for the recovery of lands or rents 
 vested in trustees upon express trusts, subject to an 
 exception in cases of concealed fraud. But this 
 limitation does not aft'ect other forms of action 
 atjainst trustees, and constructive tru.sts, and all 
 trusts of personalty are wholly without the oper- 
 ation of this statute (5). It is in fact, as is the Act 
 37 k .SS Vict., cap. 57, sec. 10 (G), a provision for the 
 security of property rather than for the protection 
 of trustees. Neither section is available to the 
 trustee ai^ainst a personal claim upon him for breach 
 of trust. 
 
 (1) Imp. Stat. 11 Geo. IV. and 1 Will. IV. cap. 40; Stewart 
 V. Stewart, 15 Ch. 1). at p. 544; R.S.O. (1897) cap. 51, sees. 
 26-7; /;* re Hodges, 1 Gr. at p. 289. 
 
 (2) In re Lacy, Royal General Theatrical Fund v. Eydd (1899) 
 2 Ch. 149; In re Davis (1891) ;} Chy. 119; In re Howe, W.N. 
 (1889) IGl: Dacre V. Patrick-son, 1 Dr. & Sm. 185. 
 
 (3) R.S.O. (1897) cap. 133, sees. 30 et seq; see Appendix A. 
 
 (4) Marquis of Cholmondeley v. Lord Clinton, 2 J. & W. 192. 
 
 (5) In Ranner v. Berridge, 18 Ch. D. at p. 262, Kay .1. says 
 that this statute was extended by tho Judicature Act of 1873, 
 sec. 25, R.S.O. (1897) cap. 51, see. 58, to trusts of personalty. 
 
 (6) R.S.O. (1897) cap. 133, sec. 24; see Appendix A. 
 
8 IM{i:-K\lSTIN(; I, AW. 
 
 .Iiidiciitun' Tilt' 2.')tli section <)l" tlir Iiiiiu'riiil JtKlic'iitiuf Act 
 
 Act, K.S.O. ' 
 
 (1H!)7), Clip, ol' \S7',] (embodied in our own .ludicature Act ) ( I ), 
 
 ')!, sec. ">M, 
 
 rt.H. 1. which enacted that " no chiini ol' ii ci'sfiii (jinlntst. 
 
 ai^iiinst his trustee I'oi' any property held on an 
 
 express trust shall he held to he barred by any 
 
 Statute ol" Limitations," "is," .says Ba^allay, L..I., 
 
 " but a statutory declaration of a law wli'ch had 
 
 always been reco*(nized and administered in Courts of 
 
 ^^*^ ,. . E(|uity"(2). Hut this " ley-islative recoiinition and 
 
 application. \ J y ' >-< >-. 
 
 ex])ression of a })revious well settled princijile in 
 e(juity " (8), like that principle itself, -extends only to 
 claims of the redui que trust (4), or those represent- 
 inij or assertintjj his ri<(ht to relief (5), in respect of 
 his own property wasted or done away with by the 
 trustee, and not to eases where the cestui qur trust, 
 can claim as due to him, as an equitable debt, money 
 not belontring to him, but the receipt of which by 
 the trustee is a fraud upoi'i liim ((>). The claim for 
 breach of trust, to whicii, before 1888 no lapse of 
 time was a bar, must be, says Cotton, L.J., in respect 
 
 (1) 44 Viet. (O.) cap. 5, see. 17, ss. 2; R.S.O. (1897) cap. 
 51, sec. 58, ss. 1, and cap. 133, sec. 30, ss. 2; 47 Vict. (N.S.) 
 cap. 25, sec. 14, ss. 1; 58 & 59 Vict. (Man.) cap. 6, sec. 39, 
 ss. 1; R.S.B.C. (1897) cap. 187, sec. 89; see Appendix A. 
 
 (2) In re Cross, 20 Cli. 1). 109. 
 
 (3) Tlionie v. Heant, per Lindley, L.J. (1894) 1 Ch. at (iOS. 
 
 (4) Leiceliin v. Mnckwortli, 2 Eq. Cas. Abr. 579; lioliinson v. 
 Harkin (1896) 2 Ch. 415. 
 
 (5) In re Bowden, Andrew v. Cooper, 45 Ch. D. 444. 
 
 (6) Metropotitnn Bank v. Heiron, 5 Ex. D. 319; in re Sale 
 Hotel and Botanical Gardens Co., Ltd., 46 W.K. at p. 316. 
 
l'lti:-K.\ISTIN<i LAW. 
 
 of propri'ty which, prior to and hut lor the l)rt'ji('h ol' 
 trust, h('lon^t'<l to the crshii iiiic //w/.s/ ( 1 ). 
 
 The distinction hclwcfu casi-s in wiiich hN' the I'lifli.s nn.l 
 
 ll(M|lllfSCfIlCI' 
 
 ai>i)lication of Statutes of Limitation, Courts of distin- 
 
 ;,'uislu'<l from 
 
 E(|uity relieve a defendant, and cases in whieh the limitations 
 
 in L'fiuity. 
 ])hiintitl' is held disentitled to succeed uj)on orounds 
 
 of laches and ac(|uiescence, is clear and well-dctine*!. 
 In the former class of case u])on the eHluxion of 
 the period of limitation fixed Ijy the Statute the 
 plaintifi's remedy is held to he barred quitch inde- 
 pendf.'utly (except in cases of concealed fraud) of 
 whether or not he was aware that he had a cause of 
 action at the time when it first accrued to him (2). 
 But, in the other class of case, knowledge (jf his 
 riglit on the part of the plaiiititi' is essential ; with- 
 out knowledfje there could be neither laches nor 
 ac()uiescence (8). Tlie length of time elapsed which 
 will Huftice to disentitle the plaintiff to succeed upon 
 grounds of laches or acfpiiescence varies according to 
 the circumstances of each case (4), and may be either 
 longer or shorter than the period of limitation fixed 
 
 (1) Metropolitan Hank v. Hciron, 5 Ex. D. at p. :J'25; as to 
 claims between co-ccstiiis que tnistent see Harris v. Harris (No. 
 12) 29 Beav. 110; Knight v.Jiowyer, 2 De G. & J. 421. 
 
 (2) Byrne y.Frere, 2 Alolloy 171, 178. 
 
 (3) Br it tiehank y. Goodwin, L.R. 5 Eq. at p. 5oO; Coopers. 
 Green, 3 De G. F. & J. 58, 74; Erlangcr v. New Sombrero 
 Phosphate Co., 3 A.C, 1279; Blair v. Orniond, 1 De G. & Sm. 
 428, 443 ; Randall v. Errington, 10 Vesey, 427 ; Saderqnist v. 
 Ontario Bank, 15 A.R. 609; 14 O.R. 586. 
 
 (4) Lindsay Petroleum Co. v. Hard, L.R. 5 P.C. 240; In re 
 Cross, Harston v. Tenison, 20 Ch. D. 109; Stewart v. Snyder, 30 
 O.R. at p. 113. 
 
Distinction 
 hilrr N". 
 
 law ( I ). Liu'hcH and iiC(|ui('H(H'nc«' me also diHtin- 
 <;uislial)h! one from tlu' other. The hitter implies 
 more than mere hipse ol" time. It involves the idea 
 ol' assent express or imphed (2). 'Diese remarks 
 upon the foi'mer position of trustees in rejjard to tlie 
 Statutes of Limitation, whiU' hy no means exhaus- 
 tive, nor inten<h;d so to be, nuiy perhaps prove of 
 assistance in consi(h>rin«^ the statutory provision 
 which may be called The Trustee Limitations Act, 
 first introduced in En<;land in 188S (8), in Nova 
 Scotia in LS8J) (4), and in Ontario in 1891 (5), which 
 it is now proposed to discuss. 
 
 (1) Uarcnurt v. fVhite, 28 Beav. :{03, :UC , Sharp v. Wright, 
 28 Beav. ir)0; Thomson \. KaHtwnoil, 2 A.C. at p. 23G; Roberts v. 
 Tioi.stall, 4 Ilure 2GG-8; Ifatcrmaii v. mil, Kussell's N.S. Eq. 
 197; 0(1 kcs v. Smith, 17 Gr. 0(50. 
 
 (2) Kent V. Jackson, 14 Beav. 384; Davn v. Spurrier, G R.R. 
 119, 123; Toothc v. Kittridge, 24 S.C.R. 287; Pcrleij v. Snow, 
 Russell's N.S. Eq. D. 373. 
 
 (3) Imperial Act, 51 & 52 Vict. cap. 59, sec. 8. 
 
 (4) 52 Vict. (N.S.) cap. 18, see. 17. 
 
 (5) 54 Vict. (O.) cap. 19, sec. 13; now R.S.O. (1897) cap. 
 129, sec. 32. 
 
CMAITER II. 
 
 TiiK Statc'e — Its Scope. 
 
 Spcjikiiio- of " 'I'ho Tru,sto(3 Act, 1888," Mr. Justice 
 Kekcwifli says tlwit lie "can conceive of no subject of 
 deeper interest to trustees, or to those who have to 
 advise them or eoiuhict their cases, than the proper 
 construction and application of its provisions " (1). 
 That Statute (section 8). as fomid in R.S.O. (1897) 
 is in these terms : — 
 
 ( 1 ) In any action or other proceeding- ao-ainst a The statute, 
 trustee or any person claiming; throu^-h him, except 
 where the ckiim is founded upon any fraud or fraudu- 
 lent Ijreach of trust to which the trustee was party or 
 privy, or is to recover trust property, or the proceeds 
 thereof, still retained by the trustee, or previously 
 received by the trustee, and converted to his use, the 
 followin<r provisions shall apply : 
 
 {(i) All rights and privileges conferred by any 
 Statute of Limitations shall be enjoyed in the 
 like manner and to the like extent as they 
 would have been enjoyed in such action or 
 other proceeding if the trustee or person 
 claiming through him had not been a trustee 
 or person claiming througli a trustee (2). 
 
 ( 1 ) In re Somerset, Somerset v. Earl Pouleff, ( 1894) 1 Ch. at 245 . 
 
 (2) In the English and Nova Scotia Acts the concluding 
 words are "through him," instead of "through a trustee." 
 
!! 
 
 12 THE STATUTE — ITS SCO!'E. 
 
 {h) If the action or other proceediii*;' is hrouj^lit 
 to recover money or otlier property, ami is 
 one to wliicli no existiny; Statute of Liniita- 
 tions applies, the trustee or person clainiinu 
 throuii'h him siiall be entitled to the henetit 
 of, and be at liberty to plead, the lapse of 
 time as a bar to such action or other })ro- 
 ceeding in the like manner and to the like 
 extent as if thf claim had been against him 
 in an action of debt for monev had and 
 received ; but so, nevertheless, that the 
 Statute shall run against a married woman 
 entitled in possession for her separate \ise, 
 whether with or without restraint upon 
 anticipation, but shall not begin to run 
 against any beueticiary unless and mitil the 
 interest of such beneficiary becomes ( 1 ) an 
 interest in possession. 
 
 (2) No beneficiary, as against whom there would 
 be a good defence by virtue of this section, shall 
 derive any greater or other benefit from a judgment 
 or order obtained by another beneficiary than he 
 could have obtained if he had brought the action or 
 other proceeding, and this section had been pleaded. 
 
 (8) This section shall apply only to actions or 
 other proceedings connnenced after the first day of 
 January, 1892 (2), and shall not deprive any executor 
 
 (1) The English and Nova Scotia Acts contain the words 
 "shall be" instead of "becomes." 
 
 (2) In England this date is January 1st, 1890. 
 
THK STATl'TE — ITS SCOl'K. 1'^ 
 
 or julniiiiistnitor of any ri.ulit or defence to which 
 lie is entitled under any exlstino- Statute of Lnni- 
 tations (1). 
 
 " IMie legislature has intervened and said that the ^^^J^"'"''^ 
 old rule of eciuity is v^'rong, and that a trustee is 
 entitled to be protected as nuich as any other person 
 who owes money, except where he has committed an 
 act of fraud or has put trust money into his own 
 
 pQcl^et It is for the benefit of the public 
 
 that actions against trustees for innocent breaches 
 of trust should be put an end to. That is the 
 principle" of the Statute (2). 
 
 The Statute is (subject to the expressed excep- Jt ^iffects all 
 tions) couched in terms unrestricted and wide enough 
 to cover all trusts. Any possible doubts on this 
 point would seem to be set at rest by the interpreting 
 provision (3). 
 
 Some question was, however, raised in an Eng- Directors . 
 lish case (4), as to the applicability of the Act to 
 
 (1) 5-J Vict. (N.S.) cap. 18, see. 17. 
 
 (2) How V. Earl Wintc, on, per Kekewieh, J.. (189G) 2 Ch. at 
 pp. ();i2-3; Tiionie y. Beard, (l8Qo) A.C. at p. 504, per Lord 
 Maeiuighteu. 
 
 (3) R.S.O. (1897) cap. 129, sec. 27, ss. 1. "For the pur- 
 poses of the next f.ve sections of this Act the expression 
 'trustee' shall be deemed to include an executor or adminis- 
 trator and a trustee whose trust arises V»y construction or 
 implication of law as well as an express trustee." (See 51 
 Vict. (N.S.) cap. 11, sec. 3.) Ss. 2, "The provisions of the 
 said five sections relating to a trustee shall apply as well to 
 several joint trustees as to a sole trustee." 51 & 52 Vict 
 (Imp.) cap. 59, sec. 1 ; see Appendix A. 
 
 (4) In re Lamls Allotiiieut Co., (1894) 1 Cli. 61(5. 
 
14 THE STATUTE — ITS SCCJl'E. 
 
 jig persons in the position of directors, "not properly 
 
 speaking trustees , . . yet always considered 
 
 and treated as trustees of money which comes to 
 
 their hands or wliicli is actually under their control." 
 
 These persons, it was argued, were merely qoxmi 
 
 trustees. But Lord Justice Lindley answered that 
 
 to hold that directors are liable " upon the footing 
 
 that they committed a breach of trust, but that 
 
 : they are not entitled to the benefit of a Statute of 
 
 I Limitations which was passed for the benefit of 
 
 j. trustees," would put the Court in a most grotes({ue 
 
 \ Are directors position. The Lord Justice thinks directors are, qiut 
 
 1 express or 
 
 |. oonstriK'tive company property under their control, express 
 
 ! trustees ? . 
 
 trustees, but, if not, that they are certainly trustees 
 
 "by construction or implication of law" (1). 
 
 Lord Justice Kay (2), citing In re Forest of Dean 
 
 Coal Mining Company (8) for the proposition that 
 
 I directors are only trustees of awsets in their liands or 
 
 i under their control, says that the obligation of 
 
 directors in such cases arises " by construction 
 
 or implication of law," and he points out that the 
 
 definition clause in the Statute could not have 
 
 expressly included directors, because " as directors 
 
 they are not trustees at all, they are only trustees 
 
 qua the particular property which is put into their 
 
 hands or under their control, and which they have 
 
 applied in a manner which is beyond the powers 
 
 of the Company." 
 
 (1) (1894) 1 Ch. at pp. G:il-'_». 
 
 (2) Idem at pp. ()3H-y. 
 (;]) 10 Ch. D. 450, 45.'}. 
 
THE STATUTE — ITS SCUi'E. 15 
 
 Lord Justice A. L. Smith adds (1): "As I nndfi- 
 stand the arj^uinent it is this : It is said that within 
 the Act there may be an express trustee, there may 
 be a trustee whose trust arises by impHcation of 
 hiw (I leave out " construction of law "), and there 
 may also be a tertiiim quid, and the tertlum quid 
 wliich IVIr. Finlay suggests is a gentleman in 
 a fiduciary position. Now I do not agree with him 
 at all as to this tcrtiimi quid, for it seems to me 
 that the tertiam quid would be a man who is not 
 an express trustee or whose trust arises by impli- 
 cation of law, and therefore would not be within the 
 Act. But if he does come within this tertium quid, 
 that is not being an express trustee or not a trustee 
 whose trust arises by implication of law, he then 
 has the ordinary Statute of Limitations to rely 
 upon, which gives him a defence after a lap.se 
 of six years. If, however, the respondents are Director.s are 
 express trustees, or trustees " whose trust arises by statute. 
 implication of law," then they have the defence of the 
 Statute of Limitations which is atibrded by this Act 
 of 1888, unless they are deprived thereof by reason 
 of the three exceptions which are set out in section 8 
 of the Act. Therefore, it seems to me, wliichever way 
 you take this case, the Statut of Limitations is an 
 available defence for these gentlemen." 
 
 Directors were likewise held entitled to the 
 benefit of tiie Statute by Mr Ju.stice Stirling in 
 
 (1) //( rv Lauds Ailotment Conipntiy, (1894) 1 Ch. at p. (343; 
 see also In re Sharpe (1892) 1 ("h. at p. 154. 
 
16 THE STATUTE — ITS SCOPE. 
 
 Formerly no M/nhnnn.v. Wdtkius (1). The liability of a direc- 
 
 liinitiition 
 
 !i|. plied to tor for iiiis-application of the funds of the coinpaiiy, 
 
 (liret'tors. 
 
 because it partakes of the character of liability for 
 
 breacii of trust, was formerly not barred by the 
 
 Statute of Limitations (2). But directors are onl\- 
 
 trustees for the company not for creditors (8). 
 
 All persons, j^ , therefore be reo-arded as settled that all 
 
 treated as -^ f^ 
 
 trustees, are persons u])on whom Courts of Equity fasten the 
 covered by '^ ^ i ./ 
 
 the statute, oblio'ations and responsibilities of trusteeship, except 
 Lxception. Court officers sucli as liquidators, receivers, and 
 trustees in bankruptcy (4), are trustees within the 
 mean i no- of the Statute. Constructive trustees, 
 formerly held entitled, whether by analogy to the 
 Statute of Limitations or upon other ecpiitable 
 grounds, to protection b\' reason of lapse of time, 
 can ncjw rely upon an aljsolute statutory bar ; 
 and express trustees, not excluded b}' any of the 
 exceptions, are given statutory assurance of relief 
 which Courts of Equity Iwnl always denied them. 
 Li considering the efficacy of a plea of this 
 statutory limitation, it is probably, in cases within 
 the Statute, not material to which class, constructive 
 or express, the trust belongs. 
 
 (1) 78 L.T. (X.S.) at p. 188. 
 
 (2) In re Oxford Benefit lUhj. Society, 35 Ch. D. 502; Flit- 
 croft's Case, 21 Ch. D. 519, 537. 
 
 (3) 111 re U'ood's Sliijis' Co. Ltd., G2 L.T. (X.S.) 700, 7(52; 
 Poole, Jackson and lyiii/te's Case, i) Ch. I). 322, 328. 
 
 (4) //( re Cornish, (189(5) 1 Q.B. 99. 
 
THE STATUTE — ITS SCOPE. 17 
 
 Althouo-li to eitt" authority upon the point wouM '' ^^y^-f^"" 
 
 V, 1 4 I I I IX 111 %^ 
 
 seem uinu'Cessary, it has been decided in Ireland, through a 
 ^ . trustee." 
 
 tliat thi' words in ss. 1.— "or any person ehiiniin<r 
 
 tln-(ju>,di hiin," ic, the trustee, mean, not a benefi- 
 ciary of the trust, but a person chiiniino- as liis 
 executor or achninistrator, or l)y assi^'unient or 
 otlicrvvisc under the trustee adversely to the cestui 
 qiw ffiisf (1), 
 
 Ss. 4 of section 27 (2), the interpretation or Tho inter- 
 pretation 
 detiiiiti<Mi clause, seems to call for some observation, clause. 
 
 Thou»,di perhaps intended to apply to some of the 
 
 other .sections of the orio-inal Act (8), rather than to 
 
 what i,s now section 82 of R.S.O. (1897) cap. 129 
 
 (4), the provision, that " .save as in the .said sections 
 
 (2S-82) expre.ssly provided, nothino- therein con- 
 
 taincfl .shall authorize any trustee to do anythino- 
 
 which he is in express terms forbidden to do, or to 
 
 omit to do anything- which he is in express terms 
 
 directed t(j do by the instrument creating the trust " 
 
 (5), may have an important bearing upon the case of 
 
 a triistee who, without any fraudulent purpose, — in 
 
 the s(^nse of seeking a personal advantage, or 
 
 designedly impairing the trust estate, — does that 
 
 which he is expressly forl)idden to do, or omits to do 
 
 that which he is expres.sly directed to do. Such a 
 
 (1) (I) Leahy v.DcMnleyus, (1896) 1 I.R. 206, 213. 242. 
 
 (2) R.S.O. (1897) cap. 129. 
 (:J) 54 Viet. (Ont.) cap. 19. 
 
 (4) 52 Vict. (N.S.) cap. 18, sec. 17. 
 
 (5) .52 Vict. (N.S.) cap. 18, sec. 22, ss. 2. 
 
IS 
 
 THE STATl'TE — ITS S<'01»E. 
 trustee can scarcely be heard to say that lie has 
 
 Wilful 
 
 brt'iieli, it' not 
 
 frnudukMit, unwittingly contravened his trust ; his breach is 
 
 is not 
 excluded. 
 
 neither purely ignorant nor merely negligent : it is a 
 wilful and conscious dei-eliction of dutv. Hut this 
 proviso, while it precludes the trustee from claiming 
 that he is, by mere implicati(jn from any of the pro- 
 visions of tlu; Statute, absolved from the dischai-ge of 
 any such expressed <luty, does not appear to mean 
 that, even in such a case, though unable t(i maintain 
 that his act or omission was authorized, he may not 
 be entitled to the protection of section I]'!. K.S.O. 
 (1897) cap. 12i). Neither is such a l)reach of trust 
 though wilful, necessarily fraudulent. There may 
 be an entire absence of dishonest intent and motive. 
 This aspect of it, however, leads rather to a con- 
 sideration of the exceptions as expressed in the 
 section. 
 
CHAPTER III. 
 
 The Exceptions. 
 
 The First Exception — Fraud. 
 
 The exceptions to its operation stated in tlic 'pi,,. tiucc 
 Statute call tor some special remarks. I hree classe.s 
 of trustees are by them denied the benefit of the 
 Act : — Tlie trustee who has been guilty of or privy 
 to any fraud or fraudulent breach of ti'ust : the 
 trustee who still retains trust property ; the trustee 
 wlio has received and converted to his own use trust 
 property or its proceeds. The general effect of these 
 exceptions is to exclude, from the relief extended to 
 the innocent trustee, his dishonest brother. 
 
 The Statute does not apply "where the claim is Fraud: 
 founded upon any fraud or fraudulent breach of complicity. 
 trust to which the tru.stee was party or privy." 
 "These words in the Statute indicate moral compli- 
 city," says Kay, L. J.,(l) speaking of the purport of 
 the words "party or privy;" that is, moral guilt in 
 the person sought to be charged. Wright, J., how- 
 ever, thinks that " it would be impossible to hold 
 that i\ioral fraud is required for the purpose of the 
 section (2)." But that learned Judge continues — 
 " The section seems to me to be directed to the relief 
 
 (1) Tfionie V. Heard, (1894) 1 Ch. at p. (iOS. 
 
 (2) III re Sale Hotel and Botanical Gardens Co., Ltd., 4() \V. 
 
 R. at p. :n(;. 
 
20 THE EXCEPTIONS. 
 
 ol' tiustct's (Voiii wliiit may 1k» called innocent or 
 iipiilio-cnt })rL'acht's of trust, and not breaches of trust 
 in wliicli f(jr their own personal ^ain, the trustees 
 have connnitted kno\vin<^l3' acts from the nature of 
 which the law imputes to them knowled«(e that they 
 are doino- wron^^" indicatintj that perhaps the con- 
 fusion is really in the conception of moral as distin- 
 
 Impvoper o-uished from le^al fraud (1). Whenever by a wilful 
 motive. 
 
 wroni;' or ille^^al act — by unjustifiable means — a 
 
 [ j trustee intentionally deprives his cestui que trad of 
 
 the trust estate (2), and, (t fortiori, if he does so for 
 
 purposes of personal train (3), there is unrpiestionably 
 
 moral fraud. 
 
 Motive need In most of the cases in which this exception of 
 
 not 1)6 
 
 persona! K.iin fraud has been discussed, the lan^uaije of the 
 to constitute . . . 
 
 fraud. .)^i''ri*^'^ l-^) would seem to nidicate that personal <;ain 
 
 or profit to the trustee is an essential element of acts 
 
 or conduct such as are re(|uisite, upon this (ground, to 
 
 exclude a trustee from the benefit of the statute. 
 
 The personal ^am of the trustee would include that 
 
 of any other person with whom he was in collusion 
 
 or for whose benefit he connnitted the breach of 
 
 trust. But, even if so extended, must this element 
 
 be superadded to a wilful (5) act or omission in breach 
 
 (1) See post p. 31 note. 
 
 (2) Green wXinDi, 23 Beav. 535. 
 
 (3) Hinjcraft v. CVcmv/ 2 East at p. 108; Erans v. E(lmon<h 13 
 C.B. 777; see Kerr on Fraud and Mistakes (2 ed.) pp. 1 and 2. 
 
 (4) Mara v. Browne (181)5) 2 Ch. at p. 1)5; Whitinvn v. 
 Watkiiis, 78 L.T. (N.S.) at p. 11)0; //( re Sale Hotel and 
 Botanical Hardens Co. Ltd., 46 W.R. at j). 31G. 
 
 (5) Re Lands Allotment Co., (1894) 1 Ch. at pp. G39-641. 
 
 Jn_ 
 
TIIK FIRST KXCKITION — FIJACD. 21 
 
 ol" trust, jukI intended to inipjiir or imperil tlie trunt 
 estate, in order to make a ease of tVand witliin the 
 exception :* Of course, it seldom liappfus that a 
 trustee is knowingly derelict to his trust, without 
 seekinjjj thereby to advantage himself or some (jther 
 ])erson in whom he is interested; Vmt such cases may 
 hapixm, and means distinctly ille<:;al and inetjuitable 
 may be deliberately resorted to — for instance, to 
 gratify a feeling of ill-will towards the cestui que 
 trust. The intent to deprive the cestui que trust in 
 breach of trust by unfair or improper means, of trust 
 property, it is submitted, sutHces by itself to ctinsti- 
 tute acts done pursuant thereto fraudulent within 
 the meaning of the exception, wiiatevei" may be the 
 improper irotive inducing their connnission. In 
 ('(Mings v. Wade (I), FitzGibbon, L.J., says : "Fraud 
 within the meaning of the Act, we think, must 
 amount to dishonesty." But this word admits of 
 more than one signification (2). 
 
 In Davy v. Taylor (3), decided by the Court of Davy v. 
 
 Taylor. 
 Appeal for Ontario on March 15th, 1898, but not 
 
 reported, Barclay, one of the two defendants having 
 
 pleaded the Statute, (then 54 Vict., cap. 19, sec. 13,) 
 
 was held disentitled to relief as party or privy to 
 
 the fraudulent breach of trust, which was the subject 
 
 of the action. The moneys of the estate, of which 
 
 (1) (1896) 1 In. Kep. 340, 349; see also p. 353. 
 
 (2) See post, part II., chap. IV. 
 
 (3) This statement of facts is taken from the judgment of 
 Mr. Justice Maclennan. 
 
22 THE EXCEl'TIONS. 
 
 lilt' (It't'cndantH wen; cxccutorH and tnistfL's, had been 
 deposited to their joint credit. Four th(JiiHand 
 doHars were with(h'awn hy Taylor I'roin the triiHt 
 fund and used by him in liis l)nsiness. Barclay 
 denied kno\vled<;e of this withdrawal at the time it 
 took place, but Mr. Justice Maclennan distinctly 
 finds that he was aware of it and consented to it. 
 In any case he certainly became aware of it not very 
 loni;- afterwards. He did not take an}' step to make 
 Taylor refund, ))ut, on the contrary, for several years 
 he either himself concealed, or connived at Ta^dor's 
 concealment of this fact from the plaintitl' the life 
 beneficiary. Indeed, he subsefjuently, with Taylor's 
 assent, "took and converted to his own use $4000 of 
 what was left, the result beintj that these two 
 executors divided for their own u.se i?8000 of the 
 trust money in tlieir hands. I therefore think," saj's 
 ]\raclennan, J. A., "tliat, in respect of the !?4000 taken 
 I)}' Taylor, the defendant Barclay was a party or 
 privy to a fraudulent breach of trust and that this 
 is a case excepted from the operation of the Act of 
 1891." 
 
 Mr. Justice IVIoss draws the same conclusion from 
 Barclay's conduct subsefjuent to the time at which 
 he admittedly knew of Taylor's misappropriation of 
 the fund. Burton, C.J.O. and Osier, J.A., concur. 
 
 In this case the plaintiff was a co-executrix as 
 well as life beneficiary, but, being- resident in 
 Chicago, took no part in the administration, and 
 these moneys were never deposited to her credit. 
 
 IL. 
 
CHAPTER IV. 
 
 Fit.Mi) oi' A(JK\T— C'()\(i:.\i,Ki) Fkaii). 
 
 Wlit'i-u the tni.stt't' liiiiisflf coimiiits a t'nuidulont "Piivy." 
 
 hrcacli ol" trust the case is tVt'o from the ditHcultieH 
 
 which ot'tcii ai'isc where it is souijht to hold him 
 
 rospuiisil))!' for the fraudiUeiit acts of another, as 
 
 "parly or privy" thereto. Tliese words, which Lord 
 
 Justice Kay says imply "moral complicit}'," mean 
 
 more, his Lordship indicates, than would the ex[)rcs- 
 
 sion "for which the trustee is liable" (1). 
 
 In T/ionic v. Heard (2), Heard and Marsh, first Tlionif r. 
 
 Heard, 
 mortuayees, sold in ISTS undei- power of sale, 
 
 employ ino- Searle, who was also the mort»i,'a»;'or's 
 solicitor, to conduct the sale for them. Searle 
 received the sale moneys .ad after satisfyin^j Heanl 
 and Marsh's claim retained the surplus, either con- 
 cealing," from them the existence of a second mortijao'e 
 or falsely representing; to them that he had the 
 autlun-ity of Thorne, the second morte-atree, to 
 receive the surplus mone s. Searle kept these 
 moneys and did not inform Thorne of the sale, Init, 
 as mort^-agor's .solicitor, continued to pay him 
 interest on the second mort^atje as if it were still 
 subsistino-, until 1892, when Searle became bankrupt. 
 Heard and Marsh, as well as Thorne, then, for the 
 
 (1) Thorncx. Heard, (1894) 1 Ch. at p. G08. 
 
 (2) (1H93) 3 Ch. 5.10; (1894) 1 Ch. r)99; (1895) A.C. 495. 
 
24 h'UAii) '»F .\(ii:xT — <()N(i;alki» I'ltvi i>. 
 
 first tiiiu', Ix'C'aiiic aware ol" the tiur state nl' alliiirs. 
 Ill tlie action l)r<)iiy,iit l>v 'I'lionie ayaiiist He;iril ami 
 Mai-sli to hold them accountahle to liiiii, as trustees 
 of the siiri)his, it was held in the House ol' Fiords, ( 1) 
 atHrniiny; tlu' Court of Ai)i)eal (2) and Konier, .1.. (.*i) 
 that, a.ssuniini,^ Heard and Marsh to lia\f Iteen 
 trustees for Tlajme, they were not "party or privy" 
 to Soai'le's fi-aud. nor were the sui'plus moneys still 
 retaine(l by them within the meanin*^ of the t .\eep- 
 tion to the Trustee Act, sect. S (R.S.O. sec. :\2)\ that 
 in connnittin^ and concealini^ the fraud Searle was 
 not actintj as agent for Heard and Marsh so as to 
 make them char<;eal)le with hi:; act; and that there 
 was nothini^ to prevent the Statute of Limitations 
 running by virtue of the Trustee Aci,, 1888 (sec. 32 
 R.S.O. (18f)7) cap. 129) (4). 
 
 To fraud From the cour.se of reasonini; of the Judifes of the 
 
 merely 
 
 imputable to Court of Appeal in Thome v. Heard (5), (certainly 
 
 '»i'" ♦lie ,. 1 ii. 1 
 
 trustee is not not irom any express statement to that eriect), tlie 
 
 nccBssflrilv 
 
 "privy." cursory reader might infer that, wdiere the trustee 
 
 WO' ^ J held liable for the fraud of an agent, 
 
 '' not "party or privy" thereto, in the sense of 
 
 .ing part in or knowing of and ac(|uiescing in, or 
 
 willingly deriving benefit from the P2tH done in 
 
 breacli of tru.st, he is to be excluded from the benefit 
 
 (1) (1895) A.C. 495. 
 
 (2) (1894) 1 Ch. 599. 
 
 (3) (1893) 3 Ch. 530. 
 
 (4) 52 Viet. (N.S.) cap. 18, see. 17. 
 
 (5) (1894) 1 Ch. at pp. 603-5; 609-11. 
 
 L. 
 
I'liAii) DF .\(ii:NT <<)N('i;ali;i) I'liAiD. 25 
 
 ol" the Stiitutt' ( I ). I5ut, upon cxiiiniiiiitiou, it will be 
 
 n'julily ixTC'civcd tluit tlu' .Ju(1<;'('H are dfalin^' with tlic 
 
 cotitontion that, aHsuniiii;;' the srction ol' the Kii<;lisli 
 
 Ti'ustt'o Ac-, eorrt'Hpondiii;;' to section IJ2 H.S.O., 
 
 (IS!)7)cap. 12!), to make tlie Statute ol' LiiiiitatiouH 
 
 applicable, yet the concealed I'raud of the alle*;e(l 
 
 a^'i'Jit should he imputed to the pi'incipal, so us to 
 
 det'er the accrual ol' the cause ol' action aii'ainst the 
 
 principal until tlu; discoveiy of such I'raud (2). The 
 
 statutory limitation, thou<^h held applicable to the 
 
 trustee as bein*;' neither " party or privy " to the 
 
 i'raud (.S), would thus be defeated. While, therefore 
 
 concealed I'raud of an atjent, lc(;ally imputable (4) to 
 
 his principal, may postpone the accrual of tlie cause 
 
 of action until its discovery, such fraud, imless the 
 
 trustee sought to be charged is himself in some way 
 
 a participant in it (5), or at least assents to it or 
 
 receives benefit from it (6), or aids in concealincf 
 
 it (7), so as to involve him in " moral complicity," will 
 
 not exclude him from the benefit of section 32 R.S.O., Notoriety of 
 
 ; '897) cap. 129. But fraud, or fraudulent breach of immaterial 
 
 trust, to which the trustee is " party or privy," how- of tli« 
 
 ever notorious and open, and whatever answer to the ^^^'^^ '^"' 
 
 (1) Thome V. Beard, (1894) 1 Ch. at pp. 610-11; 614-15. 
 
 (2) Gibbs V. Guild, 9 Q.B.D. 59. 
 
 (3) Thome v. Heard, per Lord Davey, (1895) A.C. at p. 505. 
 
 (4) British Mutual Banking Co. v. Chamwood Forest By, Co., 
 18 Q.B.D. 714. 
 
 (5) Thortic V. Beard, (1894) 1 Ch. at p. 606, per Liudley, L.J. 
 
 (6) S.C. (1895) A.C. at p. -'^03. 
 
 (7) In re Lands Allotment Co., (1894) 1 Ch. at pp. 639-40. 
 
20 FKAL'l) OK AGENT — COXCEALED f'^AUJ). 
 
 action lio ma}' have upon equitable grounds of laches 
 
 and ac(|uiescence (1), will eflectually prevent his 
 
 clainiino- an}' benefit from the ''.atute'now being 
 
 considered. 
 
 Concealed Jt would open too wide a field to enter upon anv- 
 
 fi'iiud of ..... I J 
 
 a^fiit, wlicn thinu- like a discussion of the grounds upon or the 
 
 imimtnlilt' 
 
 to tnistf'c. circumstances under which the concealed fraud of an 
 
 agent will be imputed to his trustee-principal, so as to 
 
 prevent, until its discover}^ time beginning to run in 
 
 bar of the remedy of the injured person. Such 
 
 fraudulent acts nuist be within the scope of the 
 
 agency (2), and must be done in the interest or for 
 
 the benefit of the principal, and not solely on the 
 
 agent's own behalf or for his own benefit (8). There 
 
 need be no active step taken to conceal secret fraud 
 
 by either principal (4) or agent ; its own furtive 
 
 nature sufficing, if such as to make detection diffi- 
 
 EfEect of cult or remote (5). But fraud is considered to have 
 
 luitice to . 
 
 crstiti (/!(!■ been discovered at the tune when such reasonable 
 
 notice of what has happened has been given to the 
 
 person injured, as to make it his duty, if he intends 
 
 to seek redress, to make en([uiry and to ascertain 
 
 (1) Thomson v. Eastwood, 2 A.C. 21."); Lindsay Pctroleioii Co. 
 V. Himl, L.R. 5 P.C. 2121 ; Pliillips v. ronicfatlur, 8 Ir. R. Eq. 480. 
 
 (2) Barwick v. English Joint Stock Bank, L.R. 2 Ex. 259. 
 
 (;{) British Mutual Banking Co. v. Charnwood Forest Railwai/ 
 Co., 18 Q.B.D. 714; liichards v. Bank of Nom Scotia, 20 S.C.R. 
 381. 
 
 (4) Thome V. Beard, {' A) 1 Ch. at p. (ill, per Kay, L.J.; 
 Moore v.Knigh,, (1891) 1 Ch. 547. 
 
 (5) Bulli Coal Mining Co. v. Osborne, (1899) A.C. 351, 363-4; 
 overruling Ecclesiastical Commissioners v. N.E, Rij., 4 Ch. D. 845, 
 
 trust. 
 
FllAri) OF A<;E\T — COXCEALEl) FHAri). 27 
 
 the circumstances of the case (1). On tlie other Cvxiui fine 
 
 trust entitled 
 hand, althoutrh the injured person Iiad means of to rely upon 
 
 discliiii'se of 
 
 ascertaining' that he was defrauded, if, as between duty by 
 
 trustee, 
 himself and tlie person ^"uiUy of the fraud, he was 
 
 entitled to rely upon the latter, time will not run 
 
 against him until there is somethino' to arouse 
 
 suspicion and lie has liad reasonable opportunity 
 
 thereafter for encpiiry (2). 
 
 Clark V. Beilt 1:1111/ (^) a recent case in which Mr. Clark r. 
 
 Beliiiiuy. 
 Justice Street held executor-trustees liable, presents 
 
 some peculiar circumstances. Thomas C'lark had 
 ijiven a considerable siun of money to his solicitor for 
 investment upon mortgage. The solicitor nevei- 
 invested the money, and probably made away with it 
 during Clark's Hfetime. Clark died in February, 
 1<S,S!). By his will he directed the income of S5,00(), 
 which sum was to be set apart for that purpose, to 
 be paid to liis widow during her life. Tlie executors 
 retaine(l their testator's solicitor to manao'e the estate 
 for them. The solicitor paid all the other bene- 
 ficiaries under the will in cash, and represented to 
 the executors that he lield morto:a<''es amountin''- to 
 S5()0(), which he had set asich^ for the widow's 
 benefit. Without ascertainino- whether or not the 
 mortgages actually did exist, the executors informed 
 the widow that certain mortii'ao'es in the .solicitor's 
 hands had been set apart for her and that the 
 
 (1) Marquis of Clanricartlc v. Hcuuitig, \W Beav. at p. 180. 
 
 (2) RnwUus V. Wickham, 3 De G. & .1. ;{04. 
 (:{) 'M O.R. W.\2. 
 
28 FKAUIJ OF A(ii:NT — CONCEALED I'KAID. 
 
 solicitor would collret and pay over the interest to 
 her. The solicitor did pay such interest rej^'ularlv 
 until May 1st, 18!)2, when the last payment was 
 made ])y him, many ol' his cluMjues bearing" the state- 
 ment that they were for interest on the i?.'). ()()(). 
 The executors took no part whatever in the nianaov- 
 nient of the estate. The solicitor died in July. 1S!I2, 
 and the executors discovered in the Autmnn of that 
 year that no morto-ao-es existed. The widow hrou^i'lit 
 this action ay:ainst the executors on June 10th, l<S(t7. 
 
 Estoppel. Mr. Justice Street held the trustees estopped from 
 
 denyint; the truth of the statements made hv them, 
 and that " each payment was the renewal of the 
 representation oricrinally made " — such renewal being 
 imputable to the trustees. The responsibility of the 
 trustees for their own orio-inal mis-statement seems 
 abundantly clear. " Those who, having a duty to 
 perform, represent to those, who are interested in the 
 performance of it, that it has been performed, make 
 themselves responsible for all the conse(iuenees of its 
 non-performance (1) ", and such a representation is 
 " a guarantee that the parties whose interests might 
 be affected shall be placed in the same situation as if 
 the facts represented were true (2) ". 
 
 Principal In applying to the subsecpient representations of 
 
 and agent. . i i • • i p h 
 
 the solicitor the doctrine eitlier ot estoppel or oi 
 
 concea' .^.iit of fraud as against the trustees, the 
 
 (1) Jihtif V. Bromley, 2 Ph. at p. 359. 
 
 (2) Idem at p. 360. 
 
KHAUJ) OF A(;EXT — CON (EA LEI) rHAlD. 2i) 
 
 vt".'3' iiic-fst <iuostioiiH in tlic law of principal an<l 
 
 atjent arise. Did the scjlicitor act within the scope ot" 
 
 his employment ? When makino- his payments lie 
 
 was ()stensil)ly doino-, and was certai)ily purporting;' to 
 
 do, what his principals had authorized and instructed. 
 
 This distin<>"in>^hes his position clearly i'ro!!i that of Clnrk r. 
 '^ ^ '' Bellainy 
 
 the solicitor in Tliornc v. Hmrd {]). Perhaps as distinfrui.sli- 
 
 0(1 fi'om 
 
 much cainiot be said of the accompanyino- .state- Tliorne v. 
 
 Heard. 
 
 ments. But these payments, without any such 
 
 expr(\ss statements, made as the}' were, would be 
 fraudulent misrepresentations. If the acts done by 
 him weie within the express invtructions o-iven to 
 the .solicitor, nulU qudcstlo. fouM the trustees, 
 who, however innocently, led the widow to expect 
 the solicitor to do precisely what he ostensibly did, 
 ])e heard to say that they were not ? And would 
 not the statements, if true, l\ave been the ordinary 
 concc itants of the payments, und therefore eijually 
 within the .solicitor's authoi'itv ^ 
 
 If the idea that the case should ])e re<;arded as Seojio of 
 one of express authority to the agent, by reason autliority. 
 of the information as to the instructions o-iveu him 
 conveyed b}' th.e trustees themselves to the widow, 
 be put aside, of both payments and statements it 
 mii;ht be (piite plausibly argued that they were 
 made neither pursuant to the principals' instruc- 
 tions nor on their behalf, but on behalf of the 
 agent himself as "holder l)y wrong of the fund" 
 
 (1) (1895) A. C. at p. 502 : (1894) 1 Ch. at p. G03. 
 
Hr 
 
 
 30 
 
 I I 
 
 For 
 
 principal % 
 benefit. 
 
 FItAll) OF ACiENT— CONf'KALEl) FUAl'J). 
 
 (1). His authority was to pay over interest ecj)- 
 lected, not to advance his own moneys to conceal 
 his tVainl. Yet, as put in UdeU v. AtJu'rtoiK (2) 
 "was (not) the a<:;ent's situation such as to bring 
 the representations he made within the scope ol' his 
 authority f "Frauds," say their Lordsliips of the 
 Ju(hcial Connnittee, (-S) "are beyond th{! seo})e of 
 the atjents authority, in tlve narrowest sense of 
 wiiich tlie express- achnits, for ])i'incipals do not 
 <;enerally authorize tlieir a^^ents to act wrongfully. 
 A wider construction has been put on the words." 
 If the principal "has put the agent in his place 
 to do that class of acts he nmst be answerable for 
 the manner in which the agent has conducted him- 
 self in doing the business (4), But did the solicitfjr 
 act "for his principals' benefit T' (5). Though he 
 certainly had his own purposes in view, in one sense 
 the trustees reaped certain benefits from his {)ay- 
 ments, (G) and to that extent they may be regarded 
 as made for their l)enetit. I'lu! acconipanying mis- 
 statements may not, perhaps, at first l)lush seem to 
 have b-'cn made for the trustees' benefit, but, if 
 regarded as put upon or accompanying the cheijucs for 
 
 (1) SUmtrt V. Su:i<kr, :U) O.K. 110, 114. 
 (li) 7 H. & N. 172. 
 
 {'.]) Alackai/ v. Commercinl liaitk of N.B., L.R. 5 P.C at p. 411. 
 (4) Ilanrivk v, EtujUsh Joint Stock Bank, L.R. 2 f]xcli. 259. 
 (.")) British Mtttudl Baiikiiu/ Co. v. Ch<ir)iiroo<t Forest Co. 18 
 (^.B.l). at ]). 718. 
 
 (6) Maekay v. Coiiniurcial /ioiik of JS'.B., \j.\i. ") p.C. at p. 
 410. 
 
KHALI) OK AGENT LOXCKAI.KI) KKAll). JJl 
 
 tlie purpose of identifying^ them and nuikinoj of tin ni 
 receipts available f(;r the trustees, were they not 
 likewise made for the trustees' benefit?' But. as 
 already said, the statements may be discarded. It 
 seems possible, too, that the pre.sence of this element 
 of benefit to the principals may be deenuMl not 
 indispensable in the fraudulent act itself, if, th* ugh 
 not to be treated as expressly authorized, it is 
 merely incidental to acts which have l)een so 
 authorized, or which are within the scope of the 
 a<(ent's authority and for the principals' benefit ( 1 ). 
 
 Apart alto*;'ether from these (jue.stions of aijency, Framl of 
 may not the decision in ('lurk wBnlamij be sus- 
 tained upo)i the ground that the trustees themselves 
 were- guilty of legal fraud (2) in the statements maile 
 
 by them to the vcstni que trust ^ " Ji misreprt'senta- Innocent 
 
 niisi'cpreseii- 
 tion is a fraud at law, although made innocently, and tation by one 
 
 1 !• p • • 1 •<• ■ 1 11 bound to 
 
 With an honest belier ni its truth, it it be made by a know tlie 
 
 1 1 - • , 1 1 1-1 (• 1 • 1 . trutli. 
 
 man wlio ought m the due (h.scharge oi his <luty to 
 
 have known the truth, and be made under such 
 
 circumstances or in such a way as lo induce a 
 
 (1) Cliok- V. BcUamij seems . adily distinguishable from 
 Kichanls v. Hank of Xova Scotia, 2G S.C.K. 381, which, how- 
 ever, should be carefully considered. This latter case does not 
 appear to have been cited in Clark v. licllunuj. 
 
 (12) This phrase is used notwithstanding its unequivocal con- 
 demnation in Dvrrij v. Peek, 14 A.C. 'S.M , to describe tlie 
 conduct of persons who, being under an obligation to know the 
 truth, are held liable in equity for the consequences of misre- 
 presentations, though made without knowledge of their falsehood 
 and even witli an honest belief in their truth — cases entirely 
 distinguishable from actions for damages for false representa- 
 tion, Jiroinitic V. ('(UHphell, 5 A.C i>. [)',iii. Perhaps "equitable 
 fraud " or " fraud in ecjuity " would be a more apt phrase. 
 
H 
 
 I 
 
 ; 1 
 
 |l 
 
 : 1 
 
 :; 
 
 the statute. 
 
 32 iM{.\ri) OF a(;kn't — coxckalkd fhai'D. 
 
 reasonable iiuui to ])elieve that it was true and was 
 ni';ant to be acted on and has l)een acted on by liini 
 acconHnyly to his prejudice (1)." This leo-al fraud 
 remained undiscovered until alter the (h'ath ol' the 
 solicitor, and within six years before action, and the 
 cause of action aii'ainst the trustees did not accrue 
 until its discoN'cry (2). The existence of this fraud 
 of the trustees is another o-round of (hstinction be- 
 tween this case and Tliovno v. Heard {'A). 
 
 No iirivity jn ncithei" case was tlie original frau<l of the 
 
 witliin the 
 
 mt'iiniug of solicited', or its concealment by hini, such, that the 
 
 trustees, themselves o'uiltless of moral wroiiij, would 
 be held 'party or privy" to it, and, therefore, the 
 provisions of the section, embodied in the R.S.O. 
 (1897) as section IV2, were applicable to both : but in 
 the one case time, under the Statute of Limitations 
 thus made available, did not begin to run in favor of 
 the trustees initil within six years before action, 
 because they were legally liable for their agent's con- 
 cealment of fraud or estopped from denying the 
 truth of his misrepresentations ; in the other, neither 
 the original fraud nor its subse(pient concealment 
 were imputable to the trustees so as to prevent the 
 Statute running in their favor. 
 
 CldJ'k \. Bellamy (4) is now in the Court of Appeal. 
 
 (1) Kerr on Fraud 2 Ed. pp.29, 402 ; Rawlins v. irickhani, 3 
 De G. & J. 304, 313, 31(3; liKtrows v. Lock, 10 Vesey 470. 
 
 (2) liawlins v. WU-khnm, 3 De G. & J. 304, 314; Jietjeman v. 
 
 Jictjemuii, (1895) 2 Ch. 474. 
 
 (3) (1893) 3 Ch.530; (1894) 1 Ch. 599; (1895) A.C. 495. 
 
 (4) 30 O.K. 532. 
 
CHAPTER V. 
 
 Partners — Co-trustees — Acknowledumexts. 
 
 Partnership cases retjuiro careful consideration in Innocent 
 
 piirtiier's 
 fit'teruiining the litibility of one partner for the liability. 
 
 fraudulent acts of the other, of which he was 
 
 i>,niorant (1). Upon exaniinino; the authorities it 
 
 will be found, however, tliat the (juestion generally 
 
 raised is not so much whethm- the fraud debars the 
 
 iiniocent partner from the protection of section 32, 
 
 K.S.O., (1807) cap. 129, but rather, assuming the 
 
 jip})licability of this section, from what date, for the 
 
 purpose of the Statute of Limitations thereby made 
 
 applicable, the cause of action as against the innocent 
 
 partner, is to be deemed to have accrued, — and this 
 
 »|uestion depends entirely upon the pre-existing law. 
 
 Incidentally it is interesting to note that, in Solicitors as 
 
 constriictivo 
 Mara v. Browne, the Court of Appeal (2), reversing trustees. 
 
 Mr. Justice North (3), held that "it is not within 
 
 the .scope of the implied authority of a solicitor, 
 
 carrying on business in partnership, to con.stitute 
 
 liim.self a constructive trustcie, so as to subject his 
 
 partner to liability in that character, the partner 
 
 (1) Moore V. Knight, (1891) lCh,547; Mara v. liroirne, (189,")) 
 12 Ch. 69; (1H9G) 1 Ch. 199; Hughes v. Tivmlcn, 55 L.J. Ch. 
 481 ; Blair v. Bromlcij, 2 Ph. 359. 
 
 (2) (1896) 1 Ch. 199. 
 
 (3) (1895) 2 Ch. 69. ' 
 
:j4 
 
 I'ARTXKRS — CO-TRUSTEES — ACKNOWLEIXjIMEXTS. 
 
 Liability of 
 innocent 
 00 -trustee. 
 
 Ix'iny iiiuoraiit ol" the dealiiiijs bv \vhic'> tlu^ con- 
 striictivc trust is cstablislicd." 
 
 Ill cases of co-trusteeship where one trustee has, 
 without necessity and under circinnstances not suffi- 
 cient to afford a justitication in t'(iuity (I), been 
 alhjwed exclusive control of the trust funds, and has, 
 by con(hict in breach of trust, lost such funds, his 
 co-trustee may be held to be in pari ddicto and liable 
 to make good the loss (2). To render the trustee, not 
 actively participatintj in the breach of trust, liable for 
 a loss occasioned by the acts of his co-trustee, the 
 former must himself have been culpably ne^jlitfent at 
 
 Contrii)iition least. In cases where one of two co-trustees has 
 between 
 
 co-trustees, made good a loss sustained by breach of trust, he 
 may, unless under the special circumstances of the 
 case he would Inmself be held bound to in<lemnify 
 his co-trustee, obtain contribution to that loss from 
 such co-trustee (3). And the same rule as to liability, 
 though not as to contribution, applies to cases in 
 which the trust moneys have been lost through the 
 fraud of one of two co-trustees. Excluding cases of 
 discretionary^ trust, which can never be delegated (4), 
 
 ! i 
 
 (1) Ex parte Belchier, Ambler 219; Be Speight, 22 Ch. D.727; 
 9 A.C. 1. 
 
 (2) Robinson v. Uarkin, (1896) 2 Cii. 415; see also Head v. 
 Gould, (1898) 2 Cli. 250; Crowe v. Craig, 29 N.S. Rep. 394; and 
 see Davy v. Taylor, ante p. 21. 
 
 (3) Chillingworth v. Chambers, (1896) 1 Ch.695, 707; liahin v. 
 Hughes. 31 Ch. D. 390; Lingard v. Bromley, 1 V. & B. 114; In 
 re Turner, Barker v. Ivimey, (1897) 1 Ch. 536. 
 
 (4) Crewe v. Dickcn, 4 Vesey 97. 
 
PARTNERS — CO-TRUSTEES — ACKNOWLEDGMENTS. 36 
 
 one of two t'o-tnistees, wIkj, under cireuin.stjincc.s 
 
 which would ill e([uity justily the eoutidcuce (1), 
 
 plat't's trust property in the hands of his follow- 
 
 trustt'f or ix'nuits it to be undi-r his contrcjl, would ^'raudulciit 
 ^ CO -trustee. 
 
 not 1h' held liable for a fraudulent nnsappr()})riation 
 of such property by the co-trtistee (2): and, notwith- 
 staiidinj/ tin; laniruau'e of Hub-sec. 2 of sec. 27 (8) — Section 27, 
 
 9* 9 • Ml 
 
 the provisions of section 82 "shall Mpply as well to 
 several joint trustees as to a sole trustee," — there 
 would seem to be no reasonable eround upon which 
 it could be contended that the fraud of his co-trustee 
 sh(juld deprive an innocent trustee of the benefit of 
 section 82. 
 
 AcknowlediTuients, whether made in writin<j or Acknowledg- 
 
 \ meiit by 
 
 l)y part payment (thouijjh the case is not so clear co-tnistee: 
 
 . its effect, 
 perhajjs as to the latter) ni manner suihcient to 
 
 debar the trustee niakintr them, will probably not 
 del)ar his co-trustee from the benefit of the Statute. 
 This would seem to be clearly the case in England 
 under the provisions of the Mercantile Law Amend- 
 ment Act (19 & 20 Vict (Imp.) cap. 97, sec. 14), 
 which places co-debtors (4) on the same footing upon 
 which co-contractors are placed by Lord Tenterden's 
 
 (1) Tn re Speight, 22 Ch. D. 727; 9 A.C. 1, 
 
 (2) Re McLaichie, 30 O.R. 179; Re Crowter, Crowter v. Hin- 
 vian, 10 Ont. R. 159. 
 
 (3) R.S.O., (1897) cap. 129 (not adopted in Nova Pjotia); 
 see Moore v. Knight, (1891) 1 Ch. 553. 
 
 (4) See post pp. 36-37. 
 
:]('} 
 
 PAKTN'KHS — CO-TIU'STEEH — ACKN<>\VLKI)(iMKNTS. 
 
 ( I i 
 
 1 ;• 
 
 Act, K.S.O. (18i)7) cai). 14(), sec. 2(1). 'I'll.' former 
 Act (Iocs not Hetnu to he in I'orei! in Ontiiiio r in 
 Nova Scotia, hut is in force in British Columbia (2), 
 i\Ianitol)a ('i) and New Hiunswick (4). Dut as, 
 
 Ackiiowledf,'- undtM' Lord Tcnti'rih'n's Act, the a^hnission of an 
 
 nieut of (.111 -111 1 • «• • 
 
 agent. a^cnt oi the dehtoi* is held to l)t' nisufiieicnl (')), it 
 
 would seem to follow, apart fi-oni the })rovisions of the 
 
 Mercantile Law Amendment Act, that one (jf two or 
 
 niore co-trustees would not he hound hy an aeknow- 
 
 ledti^ment made hy his fellow or fellows ((j). In Hn<^- 
 
 land, hy the same Mercantile Law Amendment Act 
 
 (sec. \'i), an acknowledfjment hy an a;;-ent is declared 
 
 to he sufficient to Innd Ins principal, thus restorinj^ 
 
 the law as it stood undi'r the Act, 21 James I., 
 
 cap. 1(), when admissions hy an a^ent were held 
 
 sufficient and those of a co-contractor hound his 
 
 fellow (7). 
 
 Requisites of The re(piisites of an acknowledgment, in i^eneral, 
 
 lU'knowledg- ,. . • i i /.. <• i , ,■ i 
 
 nieiits. sufncient to avoid the effect oi the Statute of James, 
 
 ma}' he succinctly stated as follows (S) : — To revive 
 
 (1) See Appendix A. 
 
 ('J) R.S.B.C. (1897) cap. 123, sec. 5. 
 
 (3) R.S. Man. (1891) cap. 3(i, sec. 9. 
 
 (4) C.S.N.B. (1877) cap. 85, sec. 6. 
 
 (5) Hyde v. Johnston, 3 Scott, 289; Pott v. t'lc;/!/, KJ M. & W. 
 321. 
 
 (6) As to specialty debts, see post p. 38. 
 
 (7) Whitcomh v. Whiting, Douglas 652 ; Smith's Leading 
 Cases (9 Am. ed.), vol. I., p. 909. 
 
 (8) Banning on Limitations, (2 ed.) pp. 42 82. 
 
rAllTNlOKS— t'O-TIU'STKKS ACKNOWLlMKiMKNTS. 'M 
 
 i\u' (It'ht ahsohittily it must lu' an uii(|ualiH<'(l and 
 
 uneoiKlitional promise ol" payment, or an al)soliite 
 
 admission of indehtcdncss (1) from wliidi such a 
 
 promise may 'h' inferred. If (pialiHt'd or conditional 
 
 its effect is limited by its terms (2). It nuist be 
 
 made before action to the creditor or his aj^ent, in 
 
 a wi'itin^' si<;iied l)y tiie debtor (li), but need not 
 
 .state tiie amount of the debt. Part payment, to be Part 
 
 payment, 
 the e(juivalent ol an acknowledj^ment, must be made 
 
 on accoiuit of the very debt, reasonably identified, 
 
 and under circumstances evidencing- a balance to be 
 
 due an<l not neijativin<.; an implied promise to pay 
 
 .such l)alance (4). The payment need not be in 
 
 mom.'}' and may be made by or to an at;'ent, if 
 
 sufHciently authorized (5). 
 
 Where a payment made by one of two co-trust(!es Part 
 
 1-1 1 11 , . 1 • 1 ii payment by 
 
 is rene<l upon as an acknowledgment to bnid the co-trustee. 
 
 other. Lord Tenterdon's Act not aii'ectint^ the case, the 
 
 Hutficiency of the acknowledgment would appear to 
 
 (1) Clmrlotle Co. liauk v. i^o.v.s, 5 Allen 027; Jiilliiu/.s v. 
 Riisl, 1 Thorn. Gl or 88; Kei/s v. Pollok; 1 Thorn. 81 or 109 ; 
 Cameron v. Craut, 18 S.C.R. 71G, 2:i N.S.R. 50. 
 
 {•2} llohlh, V. McMahou, 18 O.K. 219; Murdoch v. Pitts, 
 James 'J58. 
 
 (3) Colquhonu V.Murray, 19 C.L.T. 241. 
 
 (4) McKecu w.McDougaU, 2 Thorn. 403; Smyth v. McDonald, 
 Cochran 86. 
 
 (5) Hurt V. Palmer, 5 Esp. 145; Williams v. Innes, 1 Camp. 
 364; Emus v. Ihmcs, 4 A. & E. 840. 
 

 88 
 
 Aoknowh 
 
 UH'Ilt (»f 
 
 Bpeciiiltv 
 
 (lel»t. 
 
 ilg. 
 
 PARTNERS — CO-TUL'STEES — Af'KNOWLElKJMENTS. 
 
 (Irpciid upon the a<;('iic'y of the trustei', who l)iis nuule 
 the payment, l)ein<; satisfactorily established (1 ). 
 
 An aeknowlerlti^nient of a specialty debt may be 
 ^iven by an a<:;ent, whether it be by written admis- 
 sion or by part payment (2). 
 
 (1) Tho Nova Scotia statute embodying Lord Tt'iitcrden's 
 Act contains these words: " But nothing herein conhiint-d siiall 
 alter or take away or lessen the effect of any payinent of any 
 principal or interest by any person whomsoever." [H.S.N.H. 
 (1884) cap. 112, sec. 2], which are also in the original A'-t 
 9 Geo. IV., cap. 14, but not in the Ontario Statute. 
 
 (2) R.8.0. (1897) cap. 72, sec. 8. See Appendix A. 
 
CHAPTKH VT. 
 
 Thi-: Second Exception — " Stili. Retained." 
 
 By the second exception claims " to recover trust 'Still 
 
 1 1,1 <• i '11 • 1 1 I'otaincd " 
 
 property or the proceeds tliereoi still retamed l>y means at. 
 
 xi 1 i " 1 1 1 << L--i-ii 1 • 1" -^ • tlnte of writ, 
 
 the trustee are excluded. ' .Still T-etained , it is 
 
 well settled, means in the hands, or under the control 
 
 of the trustee at the date of commencement of the 
 
 action (1). Money in the liands of an atjent for 
 
 the, trustee, ".so that he can ^et it "(2), is "still 
 
 retained " by the latter, becau.se " the intention of 
 
 the exception in the Statute was to prevent a 
 
 trustee using the bar by lapse of time to enabli; 
 
 him.self to appropriate a trust fund which he had 
 
 not appropriated but liad tlie power of appropriatini;. 
 
 It would not be the intention of the Statute 
 
 that the trustee might bar the vcstai que trust and 
 
 then recover the money from his own agent and 
 
 keep it " (3). 
 
 In Wassell v. Leggatt (4). a married woman, whose Wassell r. 
 
 husband liad forcibly deprived her, in 187G, of a 
 
 legacy which she had received and which he knew 
 
 to be her separate property, .sued his executors to 
 
 recover the money. The action was brought in 
 
 (1) Thome v. Heard, (1895) A.C. at p. 503 ; S.C. (1894) ICh. 
 at pp. 602, 606, 613. 
 
 (2) S.C. (1894) 1 Ch. at p. 606. 
 
 (3) Thome v. Heard, (1894) 1 Ch. at p. 609, per Kay, L.J. 
 
 (4) (1896) 1 Ch. 554, 558. 
 
-T' 
 
 
 3 
 
 li 
 
 ■ 1 * 
 
 ! I 
 
 I ! 
 i i 
 
 I i 
 
 1 
 
 
 40 THE SECOND EXCEPTION. 
 
 1805. I)uriM(r tlie husband's lit'etiine tlie wife liiul 
 f"i'e(|ueiitly demanded tlie money. Mr. Ju.stice 
 Romei- held that the husband was a trustee i'or 
 the plaintiff'. " No Statute", he says, " applies to 
 the case, for the husband's executors cannot, on 
 his behalf, avail themselves of sec. 8 of the Trustee 
 Act 1888 (R.S.O., .sec. 32), inasmucli as he retained 
 the money and iiever accounted for or parted with 
 the pos.se,s.sion of it. The Statute of Limitations, 
 therefore, cannot be relied on as a defence". 
 
 In CoU'mijs v. Wnde (1) the Iri.sh Court of 
 Appeal held that this exception was inapplicable 
 where trust funds were loaned improperly lo a 
 person, who applied them in payment of a debt, for 
 which the trustees were liable as sureties. 
 Money.s Althou«'h this exception prevents the trustee, 
 
 ,vit,i,." who "still retains" any trust property, from 
 
 successfully' pleading the Statute as to so nnich of 
 the trust estate as is still under his control, the fact 
 that he still has, or controls, some portion of the 
 trust fund will not preclude him from setting up the 
 Statute as an answ^er to a claim that he should make 
 good any other portion of the trust property, which 
 lie haa, more than six years before action, " parted 
 with." It was so held, by Mr. Justice Kekewich, 
 in In re Davles, Ellis v. Roberts (2), following 
 Hmr V. JiJarl Winterton (3), which plaintiff's counsel 
 
 (1) (1896) 1 Ir. Rep. 340, 353. 
 
 (2) (1898) 2 Ch. 142. 
 (3^ (1896) 2 Ch. 625. 
 
"STILL HETAINED." 41 
 
 souirht to <li.stini;uiHh, on the rn'oiin'l t'uit tlio 
 admission in that case was liniited to tho presence of 
 assets in the trustee's hands six years before action' 
 while in this case a bahmce of assets was admitted to 
 hv. still in the defendant's hands. No fraud was 
 chai;ii<'d. The order made limited the account 
 (Hrected to assets in hand six years prior to the date 
 of the issue of the writ and subsenuent receipts (I). 
 
 But, thouo'h trust property should be in the Property 
 
 misappro- 
 hands of an agent, and, up to a day before the coui- priated by 
 
 o nrprif 
 
 mencement of the action, recoverable by the trustee, if, 
 from any cause, other than the fraud of the trustee, 
 such propert}' was not, at tlie moment of the l)rin(;- 
 iui;' of the action against the trustee, an}' longer 
 recoverable from such agent, the trustee would be 
 entitled to the benefit of section 32 ; and, although 
 the placing or leaving of the property in the hands 
 of such ajient might b.aN'e been a clear brt^ach of 
 trust (not fraudulent), if it occurred more than six (2) 
 years prior to the issue of the writ against the 
 trustee, the cause of action therefor would be 
 barred (8). Nor, it is submitted, would the fact tluxt 
 the trustee had a right of action, qdantum volcrct, 
 against his agent, in reppect of the loss of tiie trust 
 property, avail the cestui que trvM in endeavoring to 
 exclude the trustee from the benefit of section 82. 
 
 (1) See Appendix B. 
 
 (2) For i)eriods of limitation, where breacli of trust creates a 
 specialty debt, see post. p. T'- 
 
 (3) Stewart v. Snyder, 30 O.K., 110, 114. 
 
!! 
 
 42 TJIE SECUXJ) EXCEPTION. 
 
 Notliino; sliort of an ability, at the date of the eoia- 
 nienceiiient of tlie action, to recover tlie trust 
 property, or some part of it or its proceeds, — and 
 then only to the extent to which it might Ije recover- 
 able, — would seem sutHcient for that purpose (1). 
 This exception has no bearing upon claims for 
 damages for breach of trust. Such actions imply 
 loss or alienation of the trust property, which it 
 cannot therein be sought to " recover "' as " still 
 retained." 
 
 (1) But see TItonic v. Heard, (1894) 1 Ch. at p. (500, per 
 Kay, L.J. 
 
 M: 
 
CHAPTER VII. 
 
 The Third Exception — " Property Converted." 
 
 The third exception debars from the benefit of Moneys 
 
 . ,11 • 1 • 1 represented 
 
 the section the trustee who has " previously received to eestui que 
 
 and converted to his own use trust property, or tlie invested, but 
 
 proceeds thereof," which it is sou(;;ht to recover, g^b^e'zzled 
 
 ]\[oneys deposited with a hrin of solicitors for invest- ^^ employee. 
 
 ment, and not in fact invested, but represented by the 
 
 firm to have been invested, and in fact embezzled by 
 
 a clerk of the firm, were deemed, by Mv. Justice 
 
 Stirling, to have been converted to the use of the firm, 
 
 within the meaning of this exception (1). 
 
 Mr. Justice North points out that there may be Conversion 
 
 may be 
 such a conversion not involving fraudulent brea:h of innocent. 
 
 trust (2), as in the case of a trustee, who appropriates 
 
 trust funds to recoup himself amount.s previously 
 
 advanced out of his own funds upon securities, which 
 
 he, in good faith, turns over to the trust estate, but 
 
 which afterwards prove to have been inadequate. 
 
 But this exception will not be held to extend to a In re Gurney 
 
 Mason?'. 
 case where the interest of the trustee in the security Mercer. 
 
 taken over is very trifling or indirect. Thus a 
 
 trustee, who, with the concurrence of the mortgagor, 
 
 applied a portion of his trust fund, advanced upon a 
 
 mortgage, in payment of a debt previously charged 
 
 (1) Moore v, Kfiigiit, (1891) 1 Ch. 547, 553. 
 
 (2) Mam v. Browne, (1895) 2 Ch. 69,95. 
 
44 
 
 THE THlllJ) EXCEI'TIOX. 
 
 Moneys 
 appropriated 
 to anotlier 
 account. 
 
 Directors. 
 
 on the iMorto'aovd property in favor of a bank in 
 which the trustee was a partner, was held not to 
 liave converted to liis own use the money so 
 applied ( I ). To hold the exception applicable to 
 such a case, says Ronier, J., would be " a per- 
 version of languajije" (2). 
 
 In Callings v. Wa<le{fi) the Irish Court of Appeal, 
 affirming the Vice-Chancellor, held that trustees, who 
 had wrongly loaned money to the husband of the 
 adult p\aint\i\'-cestiiA que trust, which he had paid 
 into his bank in reduction of an overdraft, for which 
 tlie trustees were liable as his sureties, were not 
 precluded from the benefit of the Statute by this 
 exception. The trustees did not apply tlie money to 
 their own use ; and " the use of the money made by 
 the borrower cannot be made a constructive conver- 
 sion of the money by the trustees to their own use, 
 merely because they were sureties for the debt." 
 
 Wiiere there are moneys which, though still dr 
 facto in the hands of the trustee, are no longer held 
 by him as part of the trust estate, and in respect to 
 which he has been guilty of a breach of trust result- 
 ing in tlieir loss to the cestui que trust, the : ase is 
 w'thin this exception, ratiier than within that of 
 " property still retained." 
 
 There may be many cases in which directors of 
 companies, guilty of misapplication of company pro- 
 
 ()) III re Gurneij, Mason v. Mercer, (1893) 1 Cli. 590. 
 
 (2) Idem at p. 593. 
 
 (3) (189(5) 1 Ir. Uep. 340, 349, 353-4. 
 
 -W. 
 
" I'UOl'EKTY C()XVERTP:D." 45 
 
 perty, as to which they .staiKl in the position of 
 trustees " for the sluireliolders, that is, for the com- 
 pany " (I), will be debarred f)'oni the benefit of the 
 Statutes of Limitation under this third exception. 
 
 In dealing with directors as trustees, it must Directors as 
 
 trustees, 
 always be remembered that, unlike " ordinary 
 
 trustees, who.se primary duty it is to preserve the 
 trust property and not to I'isk it, directors have to 
 carry on business and this necessarily involves 
 risk "(2). While managing the Company's property 
 either in investing it, or otherwise employing it 
 in the manner contemplated by the charter and by- 
 laws, directors are not responsible for honest mis- 
 takes of judgment (8), though they are for los.ses 
 occasioned by culpable negligence (4) in such man- 
 agement. As already seen, they are liable for all 
 losses arising from employing assets for purposes or 
 in manner ultra vires of the Company. 
 
 Directors, subjected, upon the application of thesti Directors 
 principles, to liabilities, were formerly unal)le to entitled to 
 claim any protection from the Statutes of Limita- limitations, 
 tion (5). Unless debarred by the exceptions, they 
 can now do so. Most of the cases, in which they will 
 find them.selves so debarred, will no doubt fall within 
 
 (1) Poole, Jackson and Ifhyte's Case, 9 (^h. D. 322, 328. In 
 re Wood's Ships' Co., Ltd. 62 L.T. (N.S.) 760, 762. 
 
 (2) Lindley's Law of Companies, (1889) p. .364. 
 
 (3) London Financial Association v. Kclk, 26 Ch. 1). 107, 144. 
 
 (4) Evans v. Covcntrif, 8 l)e G. M. & G. 83r); Leeds Estate Co. 
 V. Sl,c-'hard, 36 Ch. 1). 787. 
 
 (5) In re 0.tford Benefit Bidlding Society, 35 Ch, I). 502. 
 
w 
 
 Mi 
 
 THE TIUHJ) EXCEPTION. 
 
 i 
 
 
 Wlien the 
 first 
 
 excei)tion 
 applies. 
 
 Sales to 
 company by 
 directors. 
 
 the first cxcoption, frainl or frauduloiit ])reacli of 
 trust. Under tliis tir.st exception, rather than under 
 the third, btit certainly under one or the otlier, will 
 fall all the cases, in which directors and promoters (1) 
 are held liable to account for profits made by 
 themselves, upon, or in consequence of, sales by such 
 fiduciaries of property belongintj to them, or in which 
 they are interested, to the Company, without full 
 disclo.sure of such interest (2). 
 
 But there are other cases in which, though the 
 first exception may proN'e no obstacle, the third 
 exception will be found an insuperable barrier. 
 Thus, directors, who have, with full disclosure and 
 without fraud, sold to their Company property 
 belonging to themselves, are not liable, if the 
 purchase of the property be warranted by the 
 constitution of the Company, to account for any 
 profits made upon the transaction, (3) nor to 
 indemnify the Company for any loss it may sus- 
 tain through such a purchase. The fact that the 
 property was their own and not that of strangers 
 Ultra rircs. in this case is immaterial. But, if the ac(|uisi- 
 tion of such property should be idtra vires, the 
 fact that the Company's money, expended in its 
 purchase, went into the pockets of the directors, 
 
 (1) Erlangcr v. New Sombrero Phosphate Co., U A.C. 1218, per 
 Lord Cairns at p. 1236. In re Hess Mfy. Co., Edgar v. Sloan, 
 23 S.C.R. G44; 21 A.K. G6. 
 
 (2) Liquidators of The Imperial Mercantile Credit Association 
 V. Coleman, L.R. G, E. & I. App., 189, 198, 204. 
 
 (3) Cavendish -lientinck v. Fenn, 12 A.C. G52. 
 
" I'ROI'KUTV COWEHTEl)." 47 
 
 {UkI not into those of strun^^'ers, may entuil very 
 (.■rave consequenceH to tlie vendors. The purchast; 
 bein'.- a breach of trust, the directors are Hable I'oi' 
 conse(|uential loss to tlie conipan}'. Had the 
 purchase been from stranoers, the action for sucli 
 a breach of trust against the directors would be 
 Ijarred six years after it occurred (1). But, the 
 purchase money, property of the Company, havino- 
 (-•one into the directors' own pockets nmst l)e 
 regarded as "converted to their use" within tlie 
 meanincr of the third exception, and no plea of 
 the Statute of Limitations could be successfully 
 set up. Other cases will, no doubt, from time to 
 time arise, which will be held to fall within the 
 tliii'd exception, but the instance just given will 
 suffice to illui trate the importance of this excep- 
 tion to directors of companies. 
 
 (1) In re Lands AUotmcnt Co., (1894) 1 Ch. GIG. 
 
CHAPTER VIII. 
 
 Clais.' a (1). 
 
 i\ ] 
 
 I ii 
 
 1 ' I 
 
 1 i 
 
 I 
 
 I 
 
 1 , 
 
 Clauses A. 
 and B. 
 
 Difficulties 
 In applica- 
 tion of 
 Clause A. 
 
 Having determined tliat the provisions, embodied 
 in section IV2, R.S.O. (181)7) cap. 129, are not 
 rendered inapplicable because of the breach of trust 
 fallin<j; within one of the three exceptions just dealt 
 with, some attention should be (;^iven to the (|Uestion, 
 what cases fall within clause A and what within 
 clause B. Upon this point there is considerable 
 divergence of opinion. 
 
 Clause A. assumes that there are some actions or 
 proceedings against trustees, as such, to which a 
 Statute; of Limitations would be applicable, " if the 
 trustee had not V)een a trustee" (2): Clause B. 
 excludes all actions " to which any existing Statute 
 of Limitations applies, (.'lause B. presents little diffi- 
 culty in its application ; not so Clause A. 
 
 " It is obvious," says Fry, L.J. (8), " that if a 
 person had not been a trustee he could not be sued 
 for breach of trust ; and further, there is no right or 
 privilege, that I am aware of, conferred by any 
 
 (1) "All rights and privileges conferred by any Statute of 
 Limitations shall be enjoyed in the like manner and to the like 
 extent as they would have been enjoyed in such action or other 
 proceeding if the trustee or person claiming through him had 
 not been a trustee or person claiming through a trustee." 
 
 (2) How V. Earl Winterton, (1896) 2 Ch. at pp. 6:{H-9, 641. 
 (;]) In re Bowden, Andrew v. Cooper, iit Ch. D. 444, 4,10-1 . 
 
CLAUSE A. 49 
 
 Statute of Limitations in respect of breacli of 
 
 trust " ; and upon tliese j^rounds, the Statute only 
 
 applyint^ to actions for breacli of trust (1), he would 
 
 apparently hoM clause A. entirely ineft'ective. Lord View of 
 
 Limllcy, L.J. 
 Justice Lindley shares these difficulties, but cannot 
 
 think Fry, L.J. intended to hold clause A. entirely 
 meaningless, and he proceeds to discuss possible 
 forms of action against trustees, as such, to which a 
 Statute of Limitations might apply, and, assuming 
 that an action of account in ecjuity excluding all 
 trust, though liaving no equitable element in it and 
 ])ased upon legal rights, might lie, and would 
 perhaps afford better machinery than an action at 
 law, he adds : — " To any such action the Statute of 
 Limitations would be as much a bar in equity as at 
 law. See Foley v. Hill (2), and Knox v. Gye " (3; 
 And the Lord Justice concludes that this action, if 
 maintainable, would be subject to a six years' 
 statutory bar. " This I take to be the law applic- 
 able to all cases which can be brought within 
 Clau.se A." Lopes, L.J. concurs in this judgment. 
 
 But would an action for an account " excluding 
 all trust ", though brought in equity as for an 
 equitable debt, be an action for breach of trust, or 
 in any sense an action against a trustee, qua trustee? 
 
 Rigby, L.J. (4), premising that a right of action, View of 
 to come within the Statute, must be founded on ' ' ' 
 
 (1) How v.Earl Winterion, (1896) 2 Ch. 641, per Kigby, L.J. 
 
 (2) 1 Ph. 399. 
 
 (3) L.R. 5 H.L. 656. 
 
 (4) Hoxo v.Earl Winterion, (1896) 2 Ch. 641. 
 
50 
 
 (•i.Arsio A. 
 
 I V 
 
 ! 1 
 
 i 
 
 I 
 
 1 
 I 
 
 ! 
 
 .1 
 
 Roincr, .T. 
 
 Nortli, .1. 
 
 Stirling?, J. 
 
 8ix-ye!U' 
 period of 
 limitation. 
 
 some act or oini.ssion in Ijrcaeh of trust (1), for i\w 
 ])Ui'pOH«}s of clause A., wouM rt'<;ar(l the oljlioation of 
 the trustee as arising; from a contract or promise to 
 perform his trust, and the breacli of trust as an 
 actionabU' breach of duty. 'I'hus discardino; tlie idea 
 of breach of trust, he would encjuire what Statute of 
 Limitations would be appropriate to such a breach 
 of contractual duty, not to extin<j;uish the cause 
 of action but to bar the remedy, and this he would 
 api)ly. To ditt'erent cases Statutes, with periods for 
 their runnino- of varyinij len^^ths, miti;ht apply. In 
 Thome V. Heiird (2), Romer, J. thouo-ht that a claim 
 foi' an account of lost trust funds would come within 
 I'lause A., while in Mam v. Browne (3), North, J., 
 adoptintr the view of Fry, L.J., tliouifht that clause A. 
 did not atlect a claim ai^ainst a trustee to make ^ijood 
 trust moneys lost by improper investment. In 
 Callings v. Wade (4) the Irish (^ourt of Appeal 
 apparently applied Clause A. to such a claim. In 
 Rohinsoi) V. Harkin {0} Mr. Justice Stirlino- held that 
 a claim for contribution between co-trustees would 
 fall within Clause A., as a claim for recovery of debt 
 already subject to the Statutes of Limitation. 
 
 It is an important question whether or not, in 
 any ca.se within Clause A., sec. 32, R.S.O. (1897) cap. 
 12!), there would be any period of limitation applic- 
 
 (1) See Chap. XV. 
 
 (2) (1893) 3 Ch. 534. 
 
 (3) (1895) 2 Ch. 95 
 
 (4) (189G) 1 Ir. Rep. 340, 349. 
 
 (5) (189G) 2 Ch. at p. 426. 
 
CLAUSE A. 61 
 
 jilil*' otlit'i" tliiiii six years. Tt may hv taken as 
 ('Stal)Iislit'(l tluit a ri<^lit ol' action to 1»> within the 
 section nmst he founded on some aet or omission in 
 breach ol" trust (1). The action must necessarily bo 
 a^Minst the trustee, (jiiii trustee, and, exchidinij tlie 
 cases covered \>y the exception ol' pi'Operty "still 
 retaine 1," what action can be sutJfgested which would 
 lie atjainst a trustee, as such, not founded upon 
 breach of trust innocent or fraudulent <* If this be 
 so, and if the relation between the trustee, who has 
 been i^uiity of breach of trust, and his cestui que 
 I rust were always that of debtor and creditor as 
 upon a simple contract debt, the period of limitation 
 applicable would certainly be in every case six years. 
 The n^lation of creditor and debtor upon simple con- 
 tract j^ives to the person in the former position a 
 rii,dit to recover money from the person occupyin*:^ 
 the latter. To this right the onl^- statutory' period 
 of limitation applicable is six years. 
 
 Now, although, in Ex parte Taylor(2), Lord Esher, Debtor and 
 
 creditor 
 M.R. states, with all the positiveness of well settled 
 
 conviction, that "a cestui que trust is not a creditor 
 
 of his trustee — the parties do not stand in the 
 
 relation of debtor and creditor," and this opinion is 
 
 also expressed in many other cases, such as Ex parte 
 
 Stubbins (3), Ex p)arte Ball (4), Molsons Bank v. 
 
 (1) Per Rigby, L.J., How v. Earl Wintertou, (1896) 2 Ch. at 
 p. (541. See chap. XV. 
 
 (2) 18 Q.B.D. at p. 301. 
 (.'{) 17 Ch. D. at p. 69. 
 
 (4) 35 W.R. 264 (reluctantly by Sir James Hannen). 
 
if 
 
 52 Cf.AlSK A. 
 
 Ill 
 
 II(U'"f(\), SiiKidir V. WUnon{2) and other ciineH, 
 these were all cases of fraudulent preference, and the 
 cestui que trust was held not to be a creditor, 
 payment of whose claim would be a preference 
 under the Bankr;i]jtcy Acts. But tlwre are strong 
 ( ij authorities the other way. Thus, in h'.r /nrrte 
 
 Krlhj (3), Lord Justice James says : — " No doubt if a 
 trustee connnits a broach of trust by stealin*,' or 
 otherwise misappropriating the money of his i-fstui 
 que trust, he becomes a debtor to his rest a i, (juc fruM 
 in respect of the money which Ik; has improperly 
 taken, and, if he becomes a debtor in that way, ho 
 remains only a debtor and the cestui (jue trust only 
 a creditor, unless he can 'ear-mark' the money which 
 the trustee has misappropriated." See also lu re 
 (^7'0S8, Harston v. Tenison (4). 
 Halsbury, l^ut that a trustee, guilty of breach of trust, is 
 
 Sharp V. ^^^^ debtor of his cestui que trust, though the debt 
 
 be only ecjuitable (o), must now be regarded as 
 settled, in view of the unmistakable language of 
 Lord Chancellor Halsburv in the House of Lords, in 
 the very recent case of Sharp v. Jackson (0), where 
 His Lordship, having had hif^ attention expressly 
 
 (1) 18 S.C.R. p. 94, per Strong, J.; IG A.R. p. :!;J1, per 
 Osier, J. A. 
 
 (2) 20 Beav. at p. 331. 
 
 (3) 11 Ch. D. at p. 311. 
 
 (4) 20 Ch. D, at p. 120; also Kearnan v. FilcSimon, 3 
 Ridgw. 1; Vernon v. Vawdry, 2 Atk. 119. 
 
 (5) Ex parte Bleticowc, L.R. 1 Ch. App. 39:5; Ex parti- Sturt, 
 L.R. 13 Eq. 309. 
 
 (6) (1899) A.C. 419, 426. 
 
 Jackson. 
 
CLAl'SE A. 53 
 
 callt'il It) A'.'" ixn'te Tuylor ( I ), uiid Ex /xtrh' Hall ('1), 
 s!ii<l : - ■ It luiH l)(ieii HUtrijc.stod that there was a 
 proposition which could be nuiintaiiied, as to which 
 I coiiless I entertain jjiave (h)ul)t wliethei' any 
 decision ;;oes U) tliat extent, namely, that the rela- 
 tion between a ccdui que ti'ust and a trustee wlio has 
 iiiisuppro])riated the trust fund is not tliat of debtor 
 and creditor. That it may be something; more than 
 tliat is true ; but that it is that of debtijr and 
 cr(!dil<Ji' I can entertain no dcnibt. As that (piestion 
 lias been nujoted and brout(ht before your Lordship's 
 House as one question for decision here, I certainly 
 liave no hesitation in sayin<( that in my opinion no 
 such projjosition can properly be maintained, and 
 that, althou<;h there are other and peculiar elements 
 in the relations between a rest a I qua trust and a 
 trustee, undoubtedly the relation of debtor and 
 creditor can and does exist." 
 
 In Hotr V. Earl Winterton (3), Kekewich, J., 
 a.ssumes that a breach of trust creates a simple con- 
 tract debt. 
 
 As indicated in Sinclair v. Wilson (4) and .some Cestui que 
 
 tYllSt 18 
 
 other cases, the cestui que trust may, so long as the owner of 
 specific trust fund exists, be said rather to be the pe"rty^n' 
 owner of that property in his trustee's hands, — but jfu^teJ* 
 such a case would be excluded altoorether from the 
 
 (1) 18 Q.B.D. 295. 
 
 (2) 35 W.R. 264. 
 
 (3) (1896) 2 Ch. 625, 632; but see per Rigby, L.J., p. 642. 
 
 (4) 20 Beav. at p. 331. 
 
1 
 
 54 CLAUSE A. 
 
 operation of seciion 32, R.S.O. (1897) cap. 120. by 
 
 the second exciption, as property " still retained." 
 
 After loss lie When, however, the fund is ^one, by niisappropria- 
 
 i ; a creditor . , , . ,. , . 
 
 of the tion, the euuni or the cestui que trust, no lonvrcr tliat 
 
 trustee- ,. „ . , , i i i i c 
 
 debto/. t)! owner or specihc property ni hand, Ijut tliat oi a 
 
 person having a right to compel his trustee to make 
 good tlie loss sustained, is the claim of a creditor, 
 the trustee being in the position of debtor. 
 
 To such a claim, except in the comparatively 
 rare cases presently to be alluded to, the statutory 
 period of limitation applicable, " if the trustee had 
 not been a trustee ", would un([uestionably ])e six 
 years, so that if any claim against a trustee, as 
 such, can be brought within clause A. it would si'em, 
 as stated by Lord Ju3tice Lindle}' (I), to be neces- 
 sarily subject to this period of limitation, except in 
 
 Specialty- those cases in which tlie trustee has, in an 'nstru- 
 
 debts the sole 
 
 exception ment executed by him under seal, covenanted or 
 
 from six-year i- ^ 
 
 period. undertaken to perform the trust, thus maknig the 
 
 debt created by a breach of trust a f.pecialty debt (2). 
 
 Specialty debts will only arise in cases of express trusts. 
 
 It has been suggested that the many cases of 
 
 Areconstrue- constructive trust, in which trustees, thouirh not at 
 tive trusts ^ 
 
 within all within the wording of the Statutes of Limitation, 
 
 Clause 4..? * 
 
 were held entitled to the beneh't of them, the many 
 
 {1) Hoc V, Earl V oib tax, (1896) 2 Ch. p. (340. 
 
 (2) Richardson v. Jenkins, 1 Drew 477 ; Jenkins v. liohcrtson, 
 1 Eq. Rep. 123; Isaacson v. Harwood, L.K. 3 Cli. Apj). 225 ; 
 Westmoreland v. TnnnicVJe, W.N. (18()9) 182 ; Adey \. Arno'd 
 ■2 l)e G. -vl. & G. 432 : Wood v. Hardistfi 2 Coll. C.C. 512. See 
 post p. 56 for periods of limitation applicable to s^acialty debts. 
 
CLAUSE A. 55 
 
 l)reael)' .s of sucli trusts, to wliich the Courts of 
 Kcjuity lield tL 'mselves bound to apply the pro- 
 visions of those Statutes ( 1 ), at least by analot^y, in 
 fact almost as " if the trustee had not been a trus- 
 tee ", may be regarded as intended to be covered by 
 clause A., thus giving the trustee in such cases an 
 absolute statutory protection in lieu of that to 
 wliich he was before held entitled per cursum ran- 
 cellaridc To such cases it is argued that, in a 
 certain sense, •' an existing Statute cl Limitations 
 applies" (2), and that they may, therefore, be excluded 
 from clause B. Although the protection formerly 
 accorded to trustees can scarcely be said to have 
 been " a right or privilege conferred by any Statute 
 of Limitations," and although the words " if the 
 trustee ha' not been a trustee " would, in applying 
 the section to such cases, be entirely inoperative and 
 meaningk'-\s, yet it is contended that, in order to give 
 to all honest trustees the benefit of the Statute, 
 which is supposed to have been intended, breaches of 
 such constructive trusts, if excluded from clause B., 
 should be deemed to fall within clause A. But the 
 construction of clause A. necessary to effect this 
 seein;^ strained to \e degree of violence, and the 
 ground for contending that these cases do not fall 
 within clause B., seems entirely insufficient (3). 
 
 (1) Petrcv. Petre, 1 Drew. 393: Banner v. Berridye, 18 Ch. D. 
 1^70. 
 
 (2) But see BiiUi Coal Mining Co. v. Osborne, (1899) A.C. 
 p. 363, ami How v. Earl Winterton, (1896) 2 Ch. 632. 
 
 (3) See post p. 6G. 
 
.■)(! 
 
 CLAUSE A. 
 
 Six -year 
 ju'iiod 
 generally 
 applicable. 
 
 Periods of 
 limitation 
 for specialty 
 debts. 
 
 Failintr thi.s clas-s of cases as subjects i'or tliu 
 operation of clause A., unless it is to be held entirely 
 inoperative, or is to be held to apply to actions 
 ao-ainst trustees other than those founded on breach 
 of trust, resort must be had to some such construc- 
 tions of that clause as those mentioned by the Lords 
 Justices, Lindley and Rigby, in Hoiv v. Earl Winter- 
 ton {\). But, as every case of breach of trust, not 
 excluded by the exceptions, should presumably fall 
 within one clause or the other, — A. or B., — if 
 the view, apparently taken by Lindley, L.J., were 
 ab.solutely accurate, — that in such cases as might be 
 brought within clause A. the period of limitation 
 would be six years, (and tliis view would be sustain- 
 able in the great majority of cases upon the basis of 
 the claim against a trustee for breach of trust being 
 a simple contract debt as above explained), — the 
 practical importance of determining within which 
 clause any particular case should be held to fall, 
 except in the case of a specialty debt, is not very 
 great. In England, and likewise in the Provinces of 
 Nova Scotia, New Brunswick, British Columbia and 
 Manitoba, the period of limitation applicable to all 
 personal claims for specialty debts is twenty years. 
 In Ontario the same period of limitation applies to 
 all personal claims upon specialty debts, except in the 
 case of " actions upon any covenant contained in any 
 indenture of mortgage made on o tifter the Lst day 
 
 (1) (1896) 2 Ch. at pp. G38, G41. 
 
CLAUSK A. 57 
 
 of July, 1S94," to wliicli a Icii-year period of limita- 
 tion is sptieially applied ( 1 ). In the other Provinces Mortgage 
 
 covenants, 
 it is probable (2) that the C'ourts will follow the 
 
 Kn;4lish Court of Appeal (8), which decided that, to 
 claims upon mortt^a^^fe covenants, the period of limita- 
 tion prescribed for claims for moneys charged upon 
 or payal)le out of lands applies, rather than that 
 prescribed for claims upon bonds or other specialties 
 not so charged. The Court of Appeal (4) for 
 Ontario had decided otherwise, and this decision was 
 followed (5) in Ontario up to 1894 in preference to 
 that of the Enj:flish Court of Appeal. To all mone^-s 
 charo-ed upon, or payable out of lands, other periods 
 of limitation apply (G), but with these we are not 
 now particularly concerned. In the case of claims 
 ao-ainst trustees, founded upon specialty debts, it is 
 most ijuportant to determine whether or not they 
 fall within cU "'^e A. 
 
 Clause A, does not appear to call for further 
 connnent. 
 
 (1) R.S.O. (1897) cap. 72, soc. 1. See Appendix A. 
 
 (L') Trimble v. Hill, 5 A.C. M2, 344. 
 
 (;j) SiiUini V. Sutton, 22 Ch. 1). 511 ; Fenni.mJc v. Fliitf, 22 Ch. 
 1). 581 ; In re Powers, LindscU v. Phillips, 30 Ch. D. 291 ; In re 
 Frishi, Allison v.Frisby, 43 Ch. D. 106. 
 
 (4) Allan v. McTavish,2 A.R. 278. 
 
 (5) McDonahl \. Elliott, 12 O.K. 98. 
 fO) K.S.O. (1897) cap. 133. 
 
CHAPTER IX. 
 
 iii 
 
 Payment of 
 interest by 
 mortgagor. 
 
 Accrual of Cause ok Acti(3X — Disahilitiks, Etc. 
 
 Before proceedintj to coiisitler tlie features 
 peculiar to Clause B., it may be well to note that by 
 neither section are the principles, which deteruiine 
 when a cause of action accrues, at all ati'ectcd (1). 
 The ett'ect of concealed fraud has been already ad- 
 verted to: reversionary interests of beneliciaries (2) 
 are expressly protected by Clause B. (8); acknovv- 
 ledgnients by payment of interest (4) or otherwise 
 and disabilities (5) are dealt with upon lon^' settlt-d 
 principles, and are <jiven their well known effects in 
 appl^dno- whatever Statute of Limitations is rendered 
 available. 
 
 Thus, in hi re Sonieri-iet, Somerset v. J'Jarl 
 Pouleti (()), the trustees of a settlement, who, in 1S78, 
 had committed an innocent breach of trust, by 
 investint;' trust money upon mortgage of pi'operty 
 
 (1) Thome V. Heard, (1894) 1 Ch. at p. 605. 
 
 (2) In re Bowdcii, 45 Ch. D. at p. 351. 
 
 (;}) How V. Earl IFinterton, (1896) 2 Ch. at p. 637; Want \. 
 Campain, 9 T.L.K. 2oi; Mara v. nrnicne, (1895) 2 Ch. 96; 
 Collins V. fVade, (1896) 1 Ir. Kep. 340. 
 
 (4) In re Somerset, (1894) 1 Ch. 231, 256, 264, 268; H'anI v. 
 Campain, 9 T L.R. 254; Hughes \. Twisden, .55 L.J. Ch. 481; 
 Stephens v. Beatty, 27 O.K. p. S8. 
 
 (5) In re Somerset, (1894) 1 Ch. p. 257; Steicart v. Snyder, 30 
 O.K. 115; In re Page, (1893) 1 Ch. 308. 
 
 (6) (1894) 1 Ch. 231. For the judgment pronounced in tliis 
 case see Appendix B. 
 
 IL 
 
ArCRUAL OF CAUSE OF ACTION — DISABILITIES, ETC. 5f) 
 
 (if iMsurticieiit value, were held entitled, under Section 
 S oi tlie Trustee Act of 188S [Sect. 82 RS.O. (181)7) 
 cap. 129], as again.st the life tenant in possession, 
 tiiout^h not as against the infant remaindermen, to 
 •set up the Statute of Limitations, notwithstanding 
 the payment of interest by the mortgagor until 
 l-SilO. The action was brought in 1892. The right 
 of tlie tenant for life was held to be barred after six 
 years from the time when the investment was made. 
 The payment of interest, though e(|uivalent to a 
 payment by the mortgagor to the trustees and by 
 them to the life tenant, is not an admission or 
 acknowledgment " of any breach of trust nor of any 
 liability on the part of the trustees that they owe, 
 or are liable to make good, the principal sum to the 
 plaintiff', or to any other of the cestiiis (lac trastent ; 
 it is a mere acknowledgment that they had received 
 fi-om the mortgagor so much money in respect of his 
 mortgage " (1). If payment of the interest "was 
 evidence of anything, it was evidence of Mr. 
 Somerset's (the life-tenant) acquiescence and accept- 
 ance of the mortgages as a proper investment" (2). 
 
 That the right of recovery of the infant remainder- Infant re- 
 
 veiHionei's. 
 men was attected by the Statute was not contended. 
 
 The judgment of IMr. Justice Wright, in Want v. 
 
 (Umpaiii (3), was precisely to the same efi'ect : see 
 
 (1) Per Lindley, L.J., at p. 264. 
 
 (2) S.C. per Davey, L.J., at p. 274; see also per A. L. 
 Smith, L.J., at pp. 2(58-9. 
 
 (3) 9 T.L.R. 254. See Appendix B. 
 
60 Af'ClUJAL OF CWSK OK ACTION' —DISAJMLITIKS, KTC, 
 
 also Mara v. Jir(*a;iir (\ ) ami In rr Stvain, Stvalii^ 
 V. lirlvf/riiKi/ii (2). 
 
 Statute runs On the otlicl' liiUid in /// vr Paf/f\ Joiich v. 
 
 from reiuoval • ,. i i • 
 
 of disiibility. M<»iy(tii (.'i), when; u trustee lor an mlant nacJ, ni 
 
 hi'eaeli ()\' trust, (!Xjtt!iid(j(l an iulant's rnorKsys u})()n 
 
 Ills inaintcinance <lurin^' his minority, the action, 
 
 l)rou^ht twelve years after th(; ini'ant had attained 
 
 his majority, to comjx;! the ti'ustcse t(j replac<; sueh 
 
 monciys, was lield to Ije Ijarred hy the Statutes. 
 
 L Contriljutioii A^^ain, in Jtahliison v. Harkiii (4), an a(;tion hy 
 
 ' between 
 
 co-trustees; oik; iA two co-trustees and infant oestuAs tftw 
 
 accrual of • i i i i • 
 
 cause of frushuil a<;anist the other trustee to compel hnn to 
 
 '\i' " make ;;()od a loss sustained l^y his dealin<;s with tlu; 
 
 trust fund in })n;ach of trust, th(; dcsfendant claimed 
 
 conti'ibution from iiis co-trust(!e, one of the plaintiff's, 
 
 whereupon the latter souj^ht, hy am(;ndm(!nt, to plead 
 
 the Statute of Limitations. 'I'lu; moneys had been lost 
 
 mor(^ than six years befon; the action was br'ou<^ht. 
 
 Mr. Justice? Stirling, in considtirin*; tlu; effect of the 
 
 proposed phsa of tin; Statute*, indicates that the case 
 
 would fall within Clause A of the Statute, fxicauses an 
 
 existino^ Statute of Liniitations was applicalth; to it, 
 
 and then points out (5) that time, under the Statute;, 
 
 (1) (1895) 2 Ch. at p. 9«. 
 
 {2) (1891) :J (;h. 241. See Collitif/.s v. ff'adc, (189(5) 1 Ir. R. 
 :)40. 
 
 i_l (;{) (i89:{) 1 Ch. :}08. But see Clarke v. MaciloudI, 20 O.K. 
 
 'I ■ 564, and cases there cited; Lyall v. Ketincili/, 14 A.C. 437. 
 
 (4) (1H9G) 2Ch. 4ir). 
 
 (5) Idem at p. 42G. 
 
 I 
 
 i 
 
ACCRUAL OF CACSH OK ACTION DISAIilMTIKS, KTC. 61 
 
 wouit], a.s b(!tw('('ii i\\('. two co-tnistons, in rt-spcct ol' 
 
 tlic claiiri tor indcimiity, not h('<(iii to I'Uii initil 
 
 the cluiiii ol" the crsliiis (jiic tru.slciif liud Ix'cii 
 
 <'Htal)linlM!(i ii<(iiir.st oik; oi* l)otli, a.s was licM in 
 
 WolifUivluijiHcii, V. (JaUlck (I), a oas(; ol' (contribution 
 
 b(!tw(;(!n co-Hui'cti<(S. 
 
 But, ('xc;('[)t where post])one(l hy tlie aj)plication CuuHf oi 
 
 . Jictioii 
 
 ol some such ruh', tli(! cause oi action, lor the hi'itupswIkh 
 
 purposes ol" s(!C. :}2, liS.C). (I-SDT) cap. 12!), is held o,'-!-urH. 
 
 to have accru(!(l when the l)r'eacii ol" ti'ust, which 
 
 forms sucli cause; ol" action, occui'red (2), and not 
 
 wJK^n the resultin^f daina<(o liapponed (.S), noi- wdien 
 
 citJKfr breach or dania;^e became known to tin; cestui 
 
 (lite IriiM (4). \or will any theory ol" a continuinj^' <'"iititmin^,' 
 
 duty tlicory. 
 duty on tht; part ot" the; trust(!e to his cento i <jae 
 
 trant, or that a t"ailui'e upon the pai't of tiii! trustcjc 
 
 to make ^ood tin; loss resulting from tin; breach of 
 
 trust, con.stitues a fresh violaticjii of duty, <^ivin_i( a 
 
 new cause of action, be permitted to disturh) this well 
 
 settled rule. " To ((iv(! assent to such a doctrine," 
 
 says Lord Horschell, " would practically put an end 
 
 to the value of the Statute (5). Where a breach has 
 
 (1) (IHO.-i) 2 Ch. 514. 
 
 (2) Tftonie v. Jfmnt, (1894) 1 (.'h. at p. GOf) ; SIc/itK-us v. 
 Ikntty, 27 O.K. 79, 91; In re Soiner.sef, (1K94) 1 Ch. at )>. 208; 
 l/ow V. Earl Winlerton, (189(5) 2 Ch. at (VM . 
 
 (3) Mr. JiiHtice Roraer's expreHsion apparently to th« con- 
 trary in Inre Swtiin, (1891) ',) Ch. at p. 241, must be inaccurate. 
 
 (4) Slcrmrt v. Snyder, WO O.K. 112, 11;'); Howell v. Yoiwf/, "> 
 B. &. C. 2r)9. 
 
 (5) Ttwrne v. Heard, (1895) A.C. at p. 50;{ ; see p. 499. 
 
I 
 
 31 
 
 62 
 
 ACCRUAL OF CATSE Ol" ACTION' — DISAHILITIEH, ETC. 
 
 been committed, wliich results in the loss of the 
 corpus of tlie trust estate, " each <.^ale of interest 
 cannot be treated as creatin^j a fresh cause of action 
 against a trustee, without taking away the very 
 relief which the section expressly gave." The 
 Statute, in such a case, does not bar merely the right 
 of the life tenant in possession to recover more than 
 six years arrears of income, prior to the commence- 
 ment of the action; his whole claim is barred (!)• 
 " Time runs from the breach of trust committed " (2). 
 
 (1) CnUuKjs V. Wade, (189G) 1 Ir. R. 340, IJoO. 
 
 (2) S.C. p. 354. 
 
 III 
 
 m 
 
 
 
 ii 
 
 i ( 
 
 I 
 
 \ ' i 
 
 1 ]'. 
 
 ^^ff^^^l^ ' 
 
CHAPTKU X. 
 
 Clause B(1). 
 
 '^riie construction and operation of Clause B. must 
 now he considered. The "action or other proceed- 
 iiin" must be ])rou<;'ht "to reco\er money or other 
 ])r<jperty. ' These words do not mean, exchisively, 
 to recover trust property in spi'cie(2), — "money as 
 ht'lon;^in«i' to tlie person " ('i). The}' extend to 
 actions brout^ht to compel trustees to account (4), and 
 to any action which is in substance an action to make 
 a trustee pay money into a fund as ai;ainst whicli the 
 i-rstnl (pie trust has a claim (5), 01" to make good a 
 loss conse(pient upon breach of trust (())■ The words 
 
 ' ' To recover 
 mouey." 
 
 (1) "(/') If the action or oilier proeeeilin<r is Ijrought to 
 recover money or other property, and is one to which no exist- 
 ing; statute of Liniitations applies, the trustee or person claim- 
 ing: throufjh him shall be entitled to the lienefit of, and be fit 
 lilierty to plead, tlie lapse of time as a bar to such action or 
 other proceeding in the like manner and to the like extent as 
 if the claim had been against him in an action of debt for 
 money had and received; but so, nevertheless, that the Htatute 
 shall run against a married woman entitled in possession for 
 her separate use, whether with or without restraint upon antici- 
 pation, but shall not begin to run against any beneficiary unless 
 and until the interest of sucli beneficiary becomes an interest in 
 possession." 
 
 (2) In re Boicden 45 Ch. 1). at p. 4')1; Iii re Swain, (1891) 3 
 Ch. '-'41. 
 
 (3) How v.Earl Wintcrton, (189()) l! Ch. G42. 
 
 (4) Idem at p. 633. 
 
 (5) Idem at p. 642. 
 
 (6) hi re Somerset, (1894) 1 Ch. 268. 
 
64 
 
 CLAUSE H. 
 
 "Or other 
 property." 
 
 (': 
 
 I I 
 
 'II 
 
 Only actions 
 " to which 
 no existing 
 Statute 01 
 Limitations 
 applies " 
 are within 
 Clause B. 
 
 " other prop«M-ty," it would .seoin, inUHt be strictly 
 construed, if not under the rule '' ejiii^tlem. <jriierw," 
 I'rom the very necessities of the case, as not extending 
 the word "money." " (3ther property "cainiot, thoui,'h 
 the Statute is confined to actions awiinst trustees or 
 those clainiin<( throu<;li them, include trust property 
 sought to be recovered from thi.'m in specie, because 
 of the second exception. Such property would be 
 "still retained." If the property sou^dit to be 
 recovered were lands, the case would fall within an 
 existino- Statute of Limitations, R.S.O. (1S!)7) cap. 
 183, sec. 80 (I), and upon that <;round, also, would 
 be without Clause B. 
 
 It seems impossible to conceive of any action to 
 recover property which mi^ht be brought a*j^aiust the 
 trustee, as such, and which would not fall within the 
 exceptions, yet would be an action to which no existing 
 Statute of Limitations applied, except an action " to 
 recover money ", in the sense in which those words 
 have been held to be used in clause B. 
 
 The action nnist be " one to which no existing 
 Statute of Limitations applies." Every action 
 founded upon breach of an express trust is clearly 
 within this description (2). But, says Lord Esher, 
 against a breach of trust, made .such by its con- 
 struction, a CouT't of E(]uity allows Statutes of 
 
 (1) See Appendix A. 
 
 (2) R.S.O. (1897) cap. 51, sec 58, ss. 2; 47 Vict. (N.S.) cap. 
 25, sec. 14, ss. 1; 58 and 59 Vict. (Man.) cap. 6, see. :]9, ss. 1; 
 K.S.B.C. (1897) cap. 187, sec. 89. 
 
 
f;i,.\rsr. it. 
 
 05 
 
 l/miitiition to l»' vouclifd ( I ). Mu\- it Ix- said of such Constructivo 
 
 trusts. 
 
 cjisfs that the Statutes ol' I^iiuitatiou ''ipply to 
 ihi'Mi ' II* so they would he cxchidcd IVoni the 
 operation ol' chiusc 15. Kor this, it may he plausihly 
 contciidcih it is not f('<|uisit»' that the coustfuctivc 
 truster should eu/|oy " a fi<;'ht or | )i-i\ih '*;•(' con t"ei'fed 
 hy a Statute of Liiuitations " (2); it should sutlice if 
 the case he one to which an e\istin<;' Statute has 
 i)een held ai)i)licahle, thoui'-h h\' analoii'N' oidw lUit 
 Mr. Justice Kekewk'h .'ays, " no Statute applied to 
 hreaches of trust " (8). His Lordship uses the word 
 ■ applied " as nieanirit^' " was in terms extended, and 
 e\iilently re<;ards it as ,so employed in clause B. 
 Lord .lustice Kav. reo'urdini'' directors as trustees 
 l>y implication of law, held thou to be within 
 clause B. (4). The interpretation clause (5) defining 
 trustees, expressly brinos such trustees within 
 the Act, but of couifto this does not indicate that 
 such cases would fall >vitliin one clause rather 
 iliau the other. To cases of concealed fraud, 
 entirely subject, like actions founded on l)reaches 
 of trust, to e(|iiitab]e doctrines, Lord James of 
 
 (1) s,,(i}- V. Ashwfll, (IHDIJ) 2 q.B. p 393; naiii'ir v. /{a- 
 
 ilil(/t 
 
 IS Ch. 1). )) 
 
 (2) //( re Bowdoi, Andrew v. Cooper, 45 Cli. D. pp. 450-1; 
 How y.Juirl miiterton, (ISfXi) 'J Cli. p. (i.'kS. 
 
 (3) S.C. p. 03:2. 
 
 (4) //( /•(■ Ldiids Allotment Co., (1894) 1 Ch. p. 1)39; soe also 
 iyiiitwain\. If'ntkins, 78 L.T. 188. 
 
 (5) K.S.O. (1897) eap. 129, sec. 27; 51 Vict. (N.S.) cap. 11. 
 sec. 3. 
 
e> 
 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 /A 
 
 V. 
 
 // 
 
 
 J/. 
 
 
 1.0 
 
 I.I 
 
 1.25 
 
 Mas 
 
 'iM 
 
 2.2 
 
 IM 
 
 1.8 
 
 U III 1.6 
 
 V 
 
 <^ 
 
 /] 
 
 ^% 
 
 
 -^ 
 
 V/A 
 
 i 
 
 P 
 
 '/ 
 
 J 
 
 €3 
 
 ^ 
 
 \ 
 
 ;V 
 
 ^\ 
 
 ^<b 
 
 V 
 
 
 <^ 
 
 <^ V. '^O*^ 
 
 '<^\>, 
 
 
 
iii!! 
 
 fid CLAUSE H. 
 
 Hereford, Hitting in the Judicial Connnittei', says 
 
 "tliese Statutes really have no application "( I ). The 
 
 benefit of them was jijiven by Courts of Eijuity in 
 
 certain cases to constructive trustees, not ])y \ irtue 
 
 of the Statutes themselves, but, as explaine(! in 
 
 Smith V. Clay (2), by a rule adopted by the Court 
 
 of Chancery itself, whereby the Court, in the exercise 
 
 of its own inherent power, applied the statutory 
 
 periods of limitation to cases in ec|uity similar to 
 
 those at law covered . by such Statutes. It seems 
 
 reasonably clear, therefore, that the Statutes of 
 
 Limitation cannot be said to have themselves 
 
 Constructive " applied " to such cases. This discussion is however, 
 
 trustees 
 
 are now rather academic than practical : for the inapplica- 
 
 nssured of a 
 
 period of bdity oi clause B. depends upon the existence of a 
 
 statutory provision already applicable, an<l which 
 that clause would otherwise render applicable. If 
 the constructive trustee, sued for breach of trust, is 
 amply assured of protection under the previously 
 well-established practice or rule oi Courts of E(juity, 
 by the application to his case of the period of limita- 
 tion prescribed by an existino- Statute, not itself in 
 terms coverino; h\s case, it nnist be matter of small 
 moment to him whether or not he can as well claim 
 the same protection from the same Court in \irtue of 
 clause B., of sec. 32, R.S.O. (1897) cap. 121). Of 
 course, in the comparatively rare cases, in which 
 
 (1) BhIU Coal Mining Co. v. Osborne, (1899) A. (J. p. V,6[i. 
 
 (2) Reported in Note to Dclomine v. Brown, ',i B.J.C. ();i9. 
 
CLAUSE IJ. (IT 
 
 Lreaclies of trust result in specialty debts, this 
 
 ([uestion might be of importance here if such debts 
 
 could arise out of constructive trusts. But, as 
 
 already explained, specialty debts only arise upon 
 
 breaches of express trusts, and the question is of no 
 
 practical moment, indess such cases should be held to 
 
 fall within clause A. B'or, to all cases within clause 
 
 B., the limitation [)eri()d applicable is necessarily six 
 
 years. 
 
 In all cases within clause B., "the trustee or person Bar as if 
 
 claim " ill 
 elaiminsr through him shall be entitled to the benefit action of ^ 
 
 of, {v.i... be at liberty to plead the lapse of time as a for money ] 
 bar to such action or other proceeding in the like received." 
 manner and to the like extent as if the claim had 
 been against him in an action of debt for money had 
 and received". In In re Somerset, Somerset v. Earl 
 Poaleti (1), Mr. Warmington, Q.C., says, arguendo: — 
 " From the time of Lord Mansfield there has been an 
 equitable aciion for money had and received. The 
 cfistvi que trust could not sue unless he got an 
 admission from the trustee, but if he got that admis- 
 sion he could sue and the Statute of Limitations 
 applied to the action irnd ran from the time when 
 the money was received to the use of the plaintiff. 
 Treating this action as analogous to an action for 
 money had and received, there would be no right to 
 sue until default made, that is, until the trustees 
 tailed to do their duty in paying the interest etc.'" 
 
 (1) (1894) 1 Ch. p. 244. 
 
G8 
 
 CLAUSE J{. 
 
 H 
 li 
 II 
 
 ii 
 
 ii 
 
 Time runs 
 from brHiicli, 
 not from 
 default in 
 payment. 
 
 Ml-. Justice Kekewich in dealirifj witli these wonls of 
 the Statute and this ai-fjunient says (1) :—" The 
 plaintilis' arounu'ut was that tlie principle of Howell v. 
 Yoavg (2) has no application to such a case as this, 
 and that, aecordincj to the words of the Statute itself, 
 the action must be treated as one for money had and 
 received, and that so treatintj it, the plea cannot be 
 maintained. The meaning of the provision, that is, 
 of the particular language in which the provision is 
 expressed, is not to my mind by any means clear, but 
 I do not think that it means what was contended by 
 the plaintitts. It would have been easy and possibly 
 better, to provide, if that had been the intention, 
 that an action against trustees to recover money or 
 other property to which no existing Statute of Limi- 
 tations applied, should be brought within six years 
 from the time when the right of recovery accrued, 
 but, notwithstanding that it has not been so plainl}' 
 provided, that must, I think, be the meaning of the 
 .section. I suppose that the words " money had and 
 received " were used because in that particular form 
 of action for debt there was more analogy to 
 pleadings and procedure in Chancery than in any 
 other like action, and, in truth, .m action of that 
 character might have been In'ought, and some- 
 times was brought, against trustees, in wdiat we 
 now call the Queen's Bench Division, before the 
 Judicature Acts. The controlling Avords for tlu' 
 
 (1) (1894) 1 Ch."p. L'55. 
 
 (2) 5 B. & C. L\it>. 
 
CLAUSE B. 
 
 (i!) 
 
 purpose of construction are, I think, "an action of "Aotinuof 
 debt." and in sucli on act'on a plea tliat the ritjlit 
 accrued six years before writ issued is tj^ood, and can 
 only be defeated by acknowledgment, or some other 
 act, takintr the case out of the Statute. This appar- 
 ently was the view of other Judfjes before whom the 
 section has come, although the precise point either 
 did not arise or was not argued before them ". And 
 ill the same case Lord Justice A. L. Smith says (1) : — 
 " The defence is to be treated as if it were a plea 
 t)f the Statute of Limit Uions pleaded at com- 
 mon law to an action for money had and received. 
 The cause of action was complete '^'hen the defen- 
 dants committed the breach of trust." 
 
 In In re Bowden, Andrew v. Cooper (2), Fry, L.J., 
 
 says : — " If this had been an action for debt for Tlit- inoacli 
 
 11 1 -1 1 *.i 1 1 i 1 1 ■ ■'* *''^' ^''"s® 
 
 money had and received, and the debt luid arisen ,,f iu-tion. 
 
 more than six years ago, and no acknowledgment 
 had taken place, the lapse of time would have 
 furnished a defence." A breach of trust, constitut- 
 ing the cause of action, is to be treated as havinn; bv, 
 and at the moment of, its commission created a debt 
 <lue by the trustee — as if he had then received 
 money payable forthwith to his eestai que trust, and 
 from that hour, save in the special cases already 
 alluded to, time under the Statute begins to run in 
 his favor (3). 
 
 (1) (18!)4) 1 Cli. at p. 268. 
 
 (2) 45 Ch. D. at p. 451. 
 
 (:!) See too Collings v. Wade, (189G) 1 Ir. K. :J40. 
 
CHAPTER XI. 
 
 Clause B.— Action fok Account. 
 
 IIow /'. Kiiil 
 Winterton. 
 
 Altliouoh the action be brou(.^ht for an account, 
 tlie rule a.s to the time from whicli the Statute 
 will be lield to run will be the same as if the 
 claim were for damaj^es or to recover a stated sum 
 of money. How v. Kdii Winterton (I) illustrates 
 this. A testatrix, who died in May, 1875, by her 
 will devised to the defendant and another, who 
 disclaimed, all her real estate upon trust to accumu- 
 late and invest the income for a period of fourteen 
 years, and then to pay to the plaintiff' an annuity of 
 £50 durino- her life, payable half yearl}'. The 
 plaintiff' in this action, be^un August !)th, 1895, 
 alleijed that the defendant had failed to invest 
 surplus rents and profits, or to accumulate or othei'- 
 wise make them available as security for her 
 annuity ; that he had failed to keep down interest on 
 encumbrances, havintj^ had the means to do so, and 
 that, in consequence of this and of his ne<;lect in 
 certain foreclosure proceedinos, property had been 
 lost and there was no estate a\'ailaf)le to satisfy 
 plaintiff's annuity, of which she had been deprived 
 since November, ISO.!/. The defendant had no trust 
 moneys in his liands at the issue of the writ and had 
 nuver converted any to his own use. The plaintiff' 
 
 (1) (1896) 2 Ch. 02(5. 
 
CLAUSE 15. — ACTION FOR ACCOUNT. 
 
 71 
 
 C'lainu'd an account of all rents and profits received 
 (lurinn" the fourteen years ; a declaration that the 
 defendant was chargeable wit'j the difference 
 between such rents and profi*^s and moneys i)roperly 
 expended and interest thereon, — and an account 
 upon that basis ; and a declaration that her annuity 
 was charged on the amount so to be found due. The 
 defendant, denying the breaches of duty and neglect 
 charged, pleaded the Trustee Act of 1888, [Section 
 :?2, R.S.O. (1897) cap. 129] as a defence. At bar, 
 however, it was admitted on his behalf that he had 
 in his hands, on August 9th, 1889, that is si.x years 
 before the issue of the writ, certain moneys liable to 
 the trust for accumulation. No fraud was suggested. 
 It was held by the Court of Appeal, affirming Mr. 
 Justice Kekewich, that the plaintiff* was entitled to 
 an account of the moneys in the hands of th<' 
 defendant six years before the issue of the writ and 
 liable to the trust for accumulation, and also to an 
 account of the rents which ought afterwards to have 
 been accunnilated, but not to an account from the 
 death of the testatrix. The plaintiff' had receive! 
 her annuity regularly from the persons beneficially 
 entitled to the real estate from 1889 to 1895, when 
 piior mortgagees intervened and the annuity ceased 
 to be paid. 
 
 Mr. Justice Kekewich says in the course of his Kekewit-li,.). 
 judgment : — 
 
 " What Mr. Micklem (counsel for the plaintiff') pro- 
 poses to prove is that at the end of the term there was 
 
72 
 
 CLAUSE Ji. — ^ACTIOX I'ol! ACCOUNT. 
 
 in tliL' liiinds of the trustoe a coiiHidorable sum, part 
 of whicli lie ini<;ht liave disposed of more than six 
 years before the issue of the writ, but some of which 
 still remained in his hands after the issue of the writ. 
 That is entirely a ((uestion of evidence. He also 
 proposes to prove that moneys had been received 
 within the six years, and that the trustee is liable for 
 that. That is a (juestion of evidence, and upon that 
 of course I nnist not trench. As at present advised, 
 it seems to nie that Mr. Micklem is entitled to an 
 
 account upon that footing 
 
 " This is an action brought by JMrs. How to 
 recover trust property. It is an action for account 
 and necessarily so. She is an annuitant whose 
 annuity was paid up until November, IH!)4, and the 
 form of her action must necessarily be to insist upon 
 the trustee rendering an account of wluit he has 
 received, of what he ought to have received and has 
 not, and of what, having been received, has not been 
 properly dealt with by him, and to make him liable 
 accordingly ; an account being taken, year by year, 
 in order to see how far the annuity had been paid 
 and how far it ought to have been paid. ^Ir. 
 Micklem s j)oint is this : that if on taking that 
 account he shows that the trustee received, say 
 No nceount £1000 at any time, he must account for that : and 
 
 to be taken 
 
 of moneys that it is no answer to say that at some point of 
 
 ' ' parted . . „ • i i i 
 
 witli" more tune more than six years before action In-ougiit, that 
 
 years Vefore i»ont^y has been parted with. When I use the 
 '"^^ '^"" expression ' parted with,' all I mean is, parted with 
 
CLAUSE Jl. — ACTION lOK ACCOUNT. 
 
 
 l)y breach of trust. It is not ii (jucstioti of tlir 
 
 trustee liaving coTiverted tlie money to his own use, 
 
 ])ecause then it would be excepted ; nor of )iis havin<; 
 
 connnitted a fraufbdent act, for tliat attain would be 
 
 e.xcepitd. I will take the ca.se sujijt;'ested l)y Mr. 
 
 .MickU'ni. Suppose the trustee, bein^ the owner of 
 
 this land, had subscribed to a parochial charity out 
 
 of the money which he ou<:;ht to have kept for the 
 
 amiuity, or had handed the money directly over to 
 
 the rector of the parish, that would have been a 
 
 breach of tru.st. Such a breach of trust constitutes 
 
 a simjjle contract debt to which no Statute of 
 
 Limitations applied before 1888, because no Statute 
 
 applied to breaches of trust. But the let^islature has 
 
 intervened and .said that the old rule of ecpiity is 
 
 wrono', and' that a trustee is entitled to be protected 
 
 as nnich as any other person who owes mone}', 
 
 except where he has committe<l an act of fraud or has 
 
 ])ut trust money into his own pocket. If ne has not 
 
 done anything of that kind, a trustee, who has 
 
 parted with money and is therefore a delator, is as 
 
 nuich entitled to protection as any other person. In 
 
 my opinion I should be repealing)- the Statute, or 
 
 depriving; the Statute of a very lart^e part of its 
 
 remedial benefit, if I were to hold that it is not to 
 
 l)e applied in that way 
 
 " I cannot see that it is rit^ht to stop shoit of 
 applying;' that principle here merely because this is 
 an action for account and not an action simply to 
 recover a certain sum of money. Therefore, an 
 
CLAISE li. — ACTION FOR ACCOUNT. 
 
 LiiuUev, L..). 
 
 Eiieh breacli 
 of trust 51 
 fi'i'sh eansf; 
 of Jietion. 
 
 Kifflit of 
 reversioner. 
 
 account inii.st he tnkeii, with a spuial direction to the 
 chief clerk that, as to moneys proved to have been 
 parted with before six yeai'.s from the isHue of the 
 writ, tlie Statute will be applicable." 
 
 Lortl Ju.stice Lindley, in the Court of Appeal, 
 adds : — 
 
 "It has been decided, first by Kekevvich, J., and 
 at;jain by this Court, on appeal by the trustee, that 
 the plaintirt' is entitled to an account of the moneys 
 in the hands of the trustee on August Oth, \HHd (i.e., 
 six years before the connnencement of this action), 
 and liable to the trusts for accumulation under the 
 will, and also to an account of the rents and profits 
 subsecjuently received by the trustee which ought to 
 have been accunuilated. But the plaintiff' is not 
 content with this, and by her cross-notice she asks 
 for an account from the death of the testatrix in 
 May, 1875, and the plaintiff* further seeks to charge 
 the defendant with compound interest at 5 per cent, 
 on all the balances of rents received bv him and not 
 properly invested and accumulated 
 
 " Each time the defendant failed to invest what 
 he ought to have invested, he committed a breach of 
 trust in respect of which the plaintiff might have sued 
 him. A series of separate causes of action thus 
 arose, each breach of trust giving her a fresh cause 
 of action. 
 
 '■ But her annuity did not begin until the end of 
 the term, namel3% on May 20th, 1889. Until that 
 day she was rather in the position of a person entitled 
 
CLAUSE 11. — ACTION FOIJ ACCOUNT. 7a 
 
 ill n'iimii»(U'i- tluin in the position ol* a [mthoii cntitlt'd 
 
 ill pos,s('s.sion. Althou*;!) hIic inifjht have .sikmI the 
 
 trusto*' iH'l'orc Uvv intoiVHt accnuMl in poH.soHsion, she 
 
 was not bound to do so. Fov the purposes ol" tlui 
 
 Statutes oi' Limitation, therei'cav, lier cau.ses of action 
 
 cannot be retjarded as havin;^' tirst accrued before 
 
 .Mav 2()th, 18«i). Even then slie could not have 
 
 sued lor her annuity. Her annuity connnenc<'d to 
 
 run l'r(jni that time, ))ut no payment in respect of it 
 
 became due to her until six months afterwards, 
 
 namelv, Novenibor 20th, IHH\). She could not have 
 
 sued for payment of any arrears of her annuity until 
 
 that date. Her riijht, however, to sue for arrears is i{ir,^ht to s\io 
 
 ... for default in 
 (die tlun^, her rio'ht to sue her trustee tor })rior payment. 
 
 breaches of trust is another thintr, and although her 
 ri^>ht to sue for arrears did not accrue till Novembe'-. 
 18(Sn (1), her rioht to 8ue for the previous breaches 
 of trust accrued six months earlier. In this parti- 
 cular case nothing' really turns on this point, for the 
 defendant has admitted that, within six years next 
 liefore the issuing of the wait in this action, he had 
 rents in his hands whicli he ought to have invested 
 and accumulated ; and there is reason to suppose that 
 he has received some more since. Thome v. Heard (2) 
 shews that he cannot be treated as if he still retained 
 these moneys so as to deprive him of the benefit 
 of s. 8 of the Trustee Act, 1888, but neither that 
 nor any other Statute protects liim from liability to 
 
 (1) See CoUhigs v. W'luU, (1896) 1 Ir. Kep. 340, 350, 3r)4. 
 
 (2) (1895) A.C. 495. 
 
i; 
 
 (•I.AISK I!. — ACTION roH A('((»rNT. 
 
 Ac'-oiinl 
 limited to 
 -i\ VMirs. 
 
 Amount in 
 liiMul six 
 yeiirs before 
 action ii 
 question of 
 fact, not 
 niiitter of 
 in-count. 
 
 Order made. 
 
 tiof'onnt tor hrciu'lii'S of trust foininittcd \)y liiiis 
 within the six vcars noxt bct'orc! the eoimnenccinent 
 ol' this lU'tioii. Tlic writ was issucMl on Atij^ust !)th, 
 I H!)5, and the account which has been directed is 
 contincd to that period 
 
 " In the })ri'sent case the action is niaintainabk* 
 in resjK'ct of the (h'fendunt's receipts since August 
 i)th, IHS!), and in respect of rents then in his hands 
 wliich ho ou^ht to liave aecinnuhited. It is said 
 that the amount of what he then had cannot he 
 ascertained without takino- an accoiuit from the death 
 of the testatrix. This, however, is not so. Wiiat 
 the (U'fendant had in his hands in I8S!) can he 
 asce'rtained hy an encpiiry. It is a mere (luestion of 
 fact to ))(' ascei'tained hy evidence, and in partictdar 
 l)y the examination of the (k't'en^hmt on oath, and 
 the production of his earlier accoinits, whicli of 
 coiu'.se are eviihoice against him. But to take an 
 account of his i-eceipts and prvments from 1875 is 
 ([uite another matter. That involves the disallow- 
 ance of every payment which the defendant cannot 
 now prove that he is entitled to have allowed as 
 apiinst the plaintiff. Such an account is necessary 
 to ascertain what the defendant ouyht to have had 
 on Auo'ust n, 1S(S9, but it is not necessary to ascer- 
 tain what in fact he then had. I see nothing in the 
 nature of the accounts which renders it necessary in 
 this case to go further back than six years ". 
 
 The form of order settled in this case by Mr. 
 Justice Kekewich, and subsequently confirmed and 
 
CLAISI': li. — ACTION I'oli ACCorNT. 77 
 
 iist'd l)y liiiii ill //' '■'' Davicfi, KUis v. Holnrls { 1 ), will 
 1m' I'uund ill llic A])|R'n(lix B. 
 
 'I'lic iu(l<i;nionts in Hoii' v. h'<ni Winterfon (2), 
 liMVt' hoi'ii thus I'ully ((uoti'd hccausc tlicy clucidfitc! 
 scveml points in the conHtructioii and ap})li('iiti()ii of 
 the Statutes ol' Limitation to elainis amiinst trustt-cs 
 in actions tor account of trust funds founded upon 
 
 hrcachcs of trust. That the Statute l)ars any rio-jit 'I'lif ruli- iniil 
 
 down, 
 to an account of nioneys (exceptinj^- always cases in 
 
 which there has bee'u frawUdent niisa})propriation), 
 " ]mrted with ' by the trustee more than si.x years 
 hefore action is also laid down by Mr. Justice North 
 in In rePaf/a, Morgnn v. Jones (8), and the same rule 
 was applied in In re Turner, Barker v. Ivimcy (4), 
 lit'fore Mr. Justice Byrne, and was held to appl}', 
 uotwithstandino- an admission by the trustee that he 
 • still retained " a balance of trust funds, by Mr. 
 .Justice Kekewich, in In re Davies, Ellis v. Rohei'ts (5). 
 Such nioneys cannot be recovered ; neither can the 
 trustee be compelled to account for them. 
 
 Tlie (piestion, which did not directly arise in l>o(s non- 
 
 1 7 Trr- pjivnieiit of 
 
 How V. Em% Wmterton (G), viz. — whether or not each jjale 
 
 the non-payment of each instalment of moneys, pay- oiiuso of ac- 
 
 11 • T 11 • • L 1' 1 c L- tion af,'aiiist 
 
 able periodically, gives rise to a iresh cau.se ot action, ti,^. trustee f 
 
 (1) (189J^) 2 Ch. 142 at p. 144. 
 
 (2) (I89r 2 Ch. 626. 
 
 CJ) (1893) 1 Ch. at p. 308. 
 
 (4) (1897) 1 Ch. 536. 
 
 (5) (1898) 2 Ch. 142. 
 
 (6) (1896) 2 Ch. 626. 
 
1H 
 
 CI.Al'SK M. — ACTI(3N FOR ACCOl'NT. 
 
 i 
 
 
 
 i !*! 
 
 tlius aftbrdino a new starting point for the Statute 
 tor eacli of a series of separate causes of action, — - 
 came up s(juarely for decision before the Irish Court 
 (if Appeal in ('(tilings v. Wtuie (1). Altlioutjh, as 
 Lindley, L.J. said in How v. Earl Winterton, — " In 
 this particular case nothing really turns on this point, 
 for the defendant has admitted that, within six years 
 next before the is.suing of the writ in this action, he 
 had rents in his liands which he ought to have 
 invested and accumulated", — ^yet, the Court, by limit- 
 ing the recovery to moneys in hand six years before 
 the action was begun and to moneys since received, 
 virtually held that any right the plaintiff might have 
 to sue for arrears of annuity would not prevent her 
 entire cause, or all her causes, of action being 
 etiectually barred by the expiration of six years 
 from the commission of the breach of trust. But, in 
 Collings V. WhaIc (I), whcve the adult plaintiff' was 
 life-tenant in possession (not a deferred annuitant as 
 was Mrs. How), it was insisted on her beluilf that 
 non-payment of each gale was a separate cause (jf 
 action, " as would have been the case if the capital 
 was duly invested, arA the income had been received 
 and withheld by the trustees". The Court, there- 
 fore, had to decide whether or not the life-tenant, 
 being barred by lapse of time as to her right of 
 action for the breach of trust, could, nevertheless, sue 
 the trustees for non-payment of all gales of income 
 
 If! 
 
 (1) (1896) 1 Ir. R. 340. 
 
si(i_iuris iJi 
 posaewsioii. 
 
 CLAUSE H. — ACTI(/\ FOll ACCOUNT. 7!) 
 
 which liad fallen due within six years before action. 
 The Court disposes of the matter in this unmistakable 
 lantifuatife : — - 
 
 Fitzgibbon, L.J., says(l) : " We cannot concur in The lapt^e of 
 
 six years 
 this view. It appears to us that any defence which from the 
 
 . ' hreuch b;irs 
 
 would have prevailer" against her as regards the aii rights of 
 
 wliole fund, if she had been the ab.solute beneticiarv, 
 
 or as regards the income, if she had been the sole 
 
 plaintiff", nntst ecpuilly prevail to prevent her from 
 
 recovering anything for herself from Wade, when 
 
 she sues as co-plaintiff' with her children. In otlu'r 
 
 words, lier whole claim is barred as against Wade. 
 
 Furthermore, we think that each gale of inte.est 
 
 cannot be treated as creating a fresh cause of action 
 
 against a trustee without taking away the very relit'f 
 
 which the section exprtssly gave. It would not be 
 
 so treated, if the defendant were not a trustee, and 
 
 the Act says that he is to have the same protection 
 
 from the Statute of Limitations as if he " had not 
 
 been a trustee ". Walker, L.J. (2), answering tlie 
 
 contention above stated, adds : — " I think this loses 
 
 sight of the scope of the section. 1 think the effect 
 
 was to free the trustee from all claims in respect of 
 
 the life estate of Mrs, Collings, who is one of the 
 
 claimants in respect of the breach of trust." He 
 
 intimates that Swain v. BrliKjeman (3): 11'"/'^ v. 
 
 (1) (189G) 1 Ir. K. at p. 350. 
 
 (2) Idem p. 354, 
 
 (3) (1891) 3 Ch. 233, 
 
S{) 
 
 CLAUSE 1!.— ACTJOX FOR ACCOUNT. 
 
 Kiile is 
 
 fidiipnlii (1 ), and In re Sonwrset (2) are decisions to 
 the same ett'ect. So is Steivart v. Snyder ('■)). 
 
 'I'lic recovery, in respect of int 'rests in possession, 
 must, therefore, except in cases of fraud or conver- 
 sion, always be limited to funds in hand six years 
 before action, or subse(juently received hy the 
 trustees — that is, of course, where there lias been no 
 interveniiiji;" acknowled^-ment. Jf the breach of trust, 
 committed six years before action, results, without 
 any further breach, or acknowledgement of liability, 
 within that period, in a total loss, thou<(h such loss 
 should occur within six years, the action will be com- 
 pletely barred : if the loss be only partial, the bar 
 will l)e i>i'(j td.nto. This would be the case, although 
 the life-tenant should have received the income (4) 
 steadily until after the expiry of the six years, which 
 had barred his right of action, the breach of trust 
 Ijeing meantime unknown to him. Thus, in the case 
 of trustees, is the principle of Hotvell v. Youn(j (5) 
 carrie<l to its ultimate logical, yet, only legitimate, 
 conclusion. 
 
 (1) !) T.L.K. 'J54 ; see Judgment us given in Seton on 
 Decrees, vol. 3, p. 2V27. See Appendix B. 
 
 (2) (1.S94) 1 Ch. 599. 
 
 (;{) :ii) O.K. 110; compare K.H.O. (1897) cap. i;U5, sec. 6, ss. 3. 
 
 (4) Tiie trustee may, however, make payments to the cestui 
 ijuu trust in such manner, (for instance, if he pays, as income or 
 interest, money out of his own pocltet, in order to conceal the 
 loss of the trust fund, or as interest upon such a fund admit- 
 tedly lost and wliieli the trustee concedes his liability to replace) 
 as either to prevent the Statute running at all, or to keep alive 
 or revive the claim of the cestui que trust. 
 
 (5) 5 B. & C. ;2.-)9. 
 
CHAPTER Xll. 
 
 Reversionary Interests. 
 
 Tho jud^nnent of Lord Justice Lindley, quoted in 
 the last chapter, would seem to clearly indicate that 
 a peison in the position of a deferred annuitant, or 
 (•har<;ee, or a remainderman, may have two distinct 
 causes of action, one, that for breach of trust, the 
 other that for non-payment of the annuity. 
 Althoui^h the breach of trust itself mi^ht have been 
 made the subject of an action the moment it occurred, 
 yt't the annuitant (or other person in like plight), 
 l)cin(;- "rather in the position of a person entitled in 
 remainder than in the position of a person entitled in 
 [)()Ssession," is not bound to exercise this right : but, 
 the moment he becomes "entitled in possession," time 
 begins to run against him as to the cause of action 
 lor any breach of trust already connnitted. Yet, 
 although the right of action for non-payment could 
 oidy be held to have accrued when the first payment 
 fell due, (and the same rule would apply to each 
 sul)se(juent payment), upon those causes of action, 
 when the whole corpus was lost and the right to 
 liave it replaced had been eti'ectually barred, the 
 annuitant would not have any further right to sue 
 tilt' trustee personally. Otherwise, for each instal- 
 ment as the same fell due, he would accpiire a fresh 
 cause of action, which would only be barred at the 
 
 Reversioner 
 may sue 
 when breaeli 
 occurs. 
 
 His riglit is 
 deemed to 
 accrue, for 
 the purposes- 
 of the 
 Htatute, 
 when his 
 interest 
 vests in 
 possession. 
 
82 
 
 REVERSIONARY INTERESTS. 
 
 expiration of .six years from tlie due date of such 
 instalment, and tliis, as Lord Justice Fit/XJibbon 
 points out, would deprive the trustee of the very 
 relief which the section was intended to give him ( 1 ). 
 
 A remainderman, thout^h likewise entitled, imme- 
 diately upon the connnission of a breach of trust, to 
 sue to have it repaired, cannot be held bound to do so 
 until his interest is vested in possession, and only 
 from that time will the Statute be held to ruri in bar 
 of his remedy to recover the trust estate from his 
 trustee. This is the plain effect of the concluding; 
 
 Correspond- words of clause B., that " the Statute shall not begin 
 
 ing provision 
 
 of "The to run against any beneficiary, unless and until the 
 
 interest of si "h beneficiary becomes an interest in 
 possession," corresponding to the similar provision in 
 "The Real Property Limitation Act," R.S.O. ( l.Sl)7) 
 cap. 18.S, sec. 5, ss. 11 & 12 (2). 
 
 But it is to be noted that, while the principle of 
 " The Real Property Limitation Act " in respect of 
 future interests is thus introduced and made applic- 
 able to actions against trustees for losses arising from 
 breaches of trust, some of the restrictions or (pialifi- 
 cations upon that principle have not been imported 
 with it. Thus, there is no provision corresponding 
 with that made by sec. 6 of " The Real Property 
 Limitation Act " in respect of cases in which the 
 person entitled to a particular estate, upon wiiich the 
 
 Real 
 l^roperty 
 J ji nutation 
 Act." 
 
 (1) Callings y. Wade, (189G) 1 Ir. R. at p. 350. 
 
 (2) See Appendix A. 
 
HE\ EUSION'AHV IXTERESTS. S:{ 
 
 ruture estate or interest was expectant, was out of 
 
 possession when his interest was determined, or with 
 
 that, to be fomid in the same section (1), in respect ot 
 
 subsequent interests of other persons, or of future 
 
 interests of the person whose ri*(ht to a prior interest 
 
 in possession had lu'en baired. 
 
 The eases cited in the preceding- chapter all When time 
 , . 1 , . . licejins to 
 
 recognize that tune only begnis to run aganist a luii against 
 
 rt'versioner fi'oni the moment at which his estate 
 
 becomes an estate in possession. Until then he is, 
 
 for the purposes of the Statute, rejijarded as if his 
 
 cause of action had not accrued, thout^h in fact it had. 
 
 (1) See Appendix A. 
 
 reversioners. 
 
I - 
 
 Time iiuis 
 ngainst ii 
 niavrit'il 
 womiui. 
 
 Wass-ll r. 
 Letr-'iilt. 
 
 CHAPTER XIII. 
 Maiuued Womex Cestuis (^i;e Trustent. 
 
 Clause B. of section 82, K.S.O. (1807), cap. I2f), 
 thouijh it does not prevent other persons luider 
 disabilities availinii" themselves of any answer there- 
 by afibrded to a plea of the Statute to tlu^ same 
 extent as they might liave done if suin*:^ in " an action 
 of debt for money had and received," precludes a 
 married woman, who is " entitled in possession for 
 her separate use, whether with or without restraint 
 upon anticipation," from claimin<,^ any advantage 
 upon the score of disability. This provision does 
 not appear to call for any extended comment. 
 
 It is noticed, but not di.scussed, l)y Fry, L..T., in 
 In re Boivden, Andrew v. Cooper (1). 
 
 In Wdssell v. Leggatt (2), where the husband was 
 held to be a trustee of separate property of his wife 
 which he had taken forcibly from her, the riglit of 
 the wife to recover such property from his executors 
 was held not to l)e affected by the English provision 
 corresponding to sec. 32, but, upon the ground, as 
 stated above, that such property was " still retained " 
 as part of the deceased trustee's estate. The Court 
 <lid not have to con.sider the proviso affecting man-ied 
 women possessed of separate estate. 
 
 (1) 45 Ch.D. at p. 451. 
 
 (2) (189G) 1 Ch. 554. 
 
MAHUIEI) WOMEN CESTIIS (^I'E TRUSTENT, 
 
 85 
 
 In re Tamer, Bdrker v. Ivimcy (I) was an action In le Tuiiut. 
 l)iou<(lit by a niavriod woman, lit'e-tenanfc of an in- 
 vested fund,a)id another person entitled in remainder, 
 to compel the trustee to make ^ood icjsses iiustained 
 by breaches of trust which had been committed more 
 than six years before action. The plaintiff's counsel 
 conceded that the plaintifi", tenant for life, could onl}' 
 recover six years' arrears of interest; — that her rij^ht 
 of recovery was barred entirely (though of course that 
 of the remaindermen was not), does not appear to 
 have been argued, the defence resting upon sec. 1) of 
 ^)') and 5() Vict. (Imp.), cap. 53 (2), and sec. Ji of 50 
 
 and (K) Vict. (Imp.), cap. 135(3). No case has yet No ciise 
 
 really in 
 arisen re(|uiring a determination of the construction point. 
 
 or ayiplicability of th(; special provision of clause B. 
 
 in reganl to married women. 
 
 By sec. 7 of the Statute of James (4) coverture The policy of 
 
 this 
 was one of the special disabilities which prevented provision. 
 
 the Statute running until their removal. But, what- 
 ever may, theretofore, have been the disabilities of a 
 married woman at law, since the enactment of the 
 Married Women's Property Acts, her powers and 
 I'ights art; so extensive in regard to her separate 
 estate, — as indeed they were previously in equity, 
 subject to the ruU' applicable where there was 
 
 (1) (1897) 1 Ch. 536. 
 
 (2) K.S.O. (1897) cap. 130, see. 9. 
 
 (:J) 02 Vict. (O.) cap. IT), see. 1; 01 Viet. (N.B.) cap. '2r.; ^ 
 
 see Appendix A. 
 
 (4) See Appendix A. 
 
 t«j 
 
sd 
 
 MAIIIMKI) WCt.MKN CKSTl'IS {)VE THrsTKNT. 
 
 It affects 
 elaiiiis ill 
 respect of 
 sei>arnte 
 estate only. 
 
 I'cstvaint on aiiticM|»}itior;' — tluit, luivinji; •••ivcii \\v\- the 
 iulvaiitHt^cs of iliscovortu.c, the [iowci'h of n frnic soir, 
 till-' U'}^islaluiv lull- b( I'll <ll,-^j)OHt'(l, in so far as it 
 relieviMl her from the foinicr (lisal)iliti;'S of coverture, 
 to .subject her to inconveniences, such as a statutory 
 bar, against wliich, by reason of those same (Usabil- 
 ities, it formerly so carefully protected her. The 
 provision in clause IJ. in ret^ard to mari'ie*! women is 
 an instance of this ])olicy. 
 
 The operation of this })ro\ision Avill nece.s.sarily 
 1k' restricted to ea.ses in which a marrie<l woman 
 makes claim a<;ainst her trustee in resjx'ct of her 
 separate estate. That the Statute should Ix; a bar to 
 such a claim is not tuu'easonal)le, becau.se, in respect 
 of her separate estate, a married wonian has the same 
 facilities and rio;hts of action as if di.scovert, and she 
 enjoys all the advantaj^es of the Statutes of Limita- 
 tion when her.self a defendant (1). Under the 
 Married Women's Property Acts, subject to the power 
 of the Court with the con.sent of the married woman 
 to order otherwi.se (2), separate property, which she 
 is restrained from anticipating, as was always the 
 case in E((uity, is not available to .satisfy any liability 
 or obli(:;ati()n incurred by her (8). But, although, for 
 
 (1) In re Lathi Hasti)H/s, HaUct v. llasthKjs, ;}5 Ch. 1). 94; 
 Beck V. Pierce, 'l'.\ Q.li.l). 31fi. But see HodijHon v. JVilliamsou, 
 15 Ch. D. 87, commented on in In re Lddi/ Hastings, Ballet v. 
 Hastings, a') Cli. D. at p. 106. 
 
 (2) R.S.O. (1897) cap. 1G.3, sec. 9. 
 
 (:5) K.S.O. (1897) cap. 1G:5, sec. 4; 56 and r)7 Vict. (Imp.) 
 cap. 63, see. I. 
 

 MAKHIKI) \V():vIi;\ CKSXriS t^lK tuistent. 
 
 .S7 
 
 111*' )»r<)ti'cti()ii ol' lici- Hcpai-jitf cstatt', a rcHtniint upon li«'ns()ii of 
 
 tlio 
 
 auticiiiation puts it out of licr power to bind hucIi provisioii. 
 estate, and j)reverus a eivditor inaki)ii^ it aval!al»le 
 lor sntisli.ctioM ol' his debt — tlie de*jr«'e of the pro- 
 Irctioii attbided eorrespoiKhMu- with that of the 
 incapacity ujion which it is founded -married 
 wowu'U. ccsl II is (fiif //w^s•^'H/, because able to sue for 
 l)reach of trust in I'espect of their separate; estate, 
 quite as freely where it is subject to I'estraint on 
 anticipation as where it is not, are, by tlie provision 
 now bein^' consi<h'red, sliould tlioy fail to brin*;- 
 action within the })eriod of statutory limitation, 
 del)aried in the one case as in the other, if the estate 
 be in possession. A reversionar}' interest in such 
 property will l)e protected by the provision of clause 
 H. following' that dealiii<( specially with married 
 women. 
 
 Before leaving; this chiuse attention should be 
 directed to an instance of crude (h'aut^htsmanship 
 which it contains. The enactin*;' portioi\ of the 
 clause enables the trustee " to plead the lapse of 
 time as a bar, etc." The restrictive phrase which 
 follows is in these words : — " Hut so nevertheless 
 that the Statute shall run, etc." Presumably " the 
 Statute " applicable to " an action of debt for money 
 had and received " is intended, but the phraseoloj^y 
 is certainly noteworthy rather for its clumsiness and 
 awkwardness than for its perspicuit}'. 
 
CHAPTKR XIV. 
 
 Siib-sectioii 
 o 
 
 Col lings r. 
 Wade. 
 
 Co-cEHTris Qi:k Thustent. 
 
 Sub-soctioii 2 of Section .S2 R.S.O., (l.S!>7) cjip. 
 121), reads thus : 
 
 " No beiieticiary, a.s agairiHt vvlioiii there would l)e 
 a good defence by virtue of this section, siiall derive 
 any greater or other benefit from a judgment or 
 order obtained by another beneficiary than he c(juld 
 have obtained if he liad brought tlie action oi- other 
 proceeding, and this section had been phvided." 
 
 This sub-section has yet to receive express 
 judicial construction in England and Canada. But it 
 has been carefully considered by the Court of Appeal 
 for Ireland in i'oUings v. Wdib' (1). By a settie- 
 ment executed on the 7th of July, 1878, on the 
 marriage of J. G. CoUings and Eliza ]\I. CoUings (the 
 plaintiff'), of which Wade and Harvey were trustees, 
 amongst other property, the following was put in 
 settlement : — Two policies of insurance for t200 
 each and six shares of Canadian railway stock. 
 Tlie property was settled upon trust for the plaintiff' 
 for life with remainder to the children of the mar- 
 riage, of whom there were six. The insurance money, 
 amounting to £510, was paid to Wade in April, 
 1877, and was lent by him and his co-trustees to J. G. 
 Ceilings without security and was lost. In [H79 
 
 (1) (1896) 1 Ir. R. 340. 
 
CO-CKSTns i)[-K TIM STKN'T. 
 
 Sl> 
 
 Wiule rc'tinsd from tlif tiustt'cslii]) and Skinner was 
 M|)|)oint('<l in his place. The trustecH ne<flecte(l to 
 ohtain a tranHl'ei' of the (^madian tail way shares 
 until IMH4, when the plaintiH' tiansferred them to 
 Harv«'y. On March 1st, IS84, Harvey sold these 
 shares for .€7!>. Hs. and a|)|)ro|)riated the proceeds. 
 .1. (i. ('ollin<;s, th(( plaintiff's husband, die(l in 1.S!).'), 
 never having repaid the £5Ui lent him l»y Wade, 
 'i'liis action was hroue;ht by his widow an<l minor 
 children aj^ainst Wade, Harvey and Sharp to compel 
 them to replace the trust funds and for an account. 
 Wade lodo(Ml £5l(). in Court and pleaded the Statute 
 of Limitations, re.sei'vinj; the rij^ht to contribution or 
 indemnity a<;ainst Harvey and Skirmei-. or aii'ainst 
 Mrs. Collintjs or any interest she mijjfht have in the 
 fund. The Vice-Chancellor, who heard rhe case, 
 luivine- foimd Wade liable to pay interest ai. four j)er 
 cent, on the sums of .£5H) and X7!) to the plaintiff, 
 Mrs. C'ollin*;s, durin<; her life, VV^ide appealed to the 
 Court of Appeal. This (\)urt held (reversinu- the .liidtriiunt. 
 decision of the Vice-Chancellor) that, by virtue of 
 the Trustee Act, 18S8, Section l\, on Wade lodoino- 
 the £51G as he had done, and upon his payinj; into 
 Court the proceeds of the sale of the Canadian rail- 
 way shares, in case of the default of Harvey so 
 to do, no interest was payable to the plaintiff", ^frs. 
 CollingH, during her life, but that such interest 
 would be payable out of Court to the tru.stee, Wade, 
 himself. 
 
!»(• 
 
 (O-CKSTIIS (/IK Yl{ TKNT. 
 
 Bnrml liri'- 
 tfiitint 
 
 ♦ Ifl'ivi'S 11(1 
 bflD'lll t'i'OIII 
 
 I't'i'DVcry of 
 ifiiuiiiuler- 
 
 IllMII. 
 
 Life tenant 
 lieinfT barred, 
 the income 
 belonjfs to 
 the trustee 
 wliile the life 
 tenant lives. 
 
 I )('iiliiiji' with tilt' jH'ovisioii, tliiit a barrcfl l)t'iifli- 
 ciary shall <l('ri\c no hciit'lit IVoiii a ju(l<;iii<'iit 
 <)l)taijM'<l hy anotht'i- hciicticiai-y, l''it/(iil)l)(Hi, L..I.(I) 
 Hays: — " Ihit then it is said that the trust rum! is 
 now nplaccfj, and that tJR' income of it must, thcic- 
 I'oi-c, 1)1' ]))iid to the tenant for life pnrsuant to the 
 tnist. It has not been replaced so fai' as Kli/a Maria 
 ('ollin<is is concerned; and Wade has a defence to 
 any action for its replacement which she could i)rin<4' 
 a*;ainst him. He not only luid not the trust money 
 in his hands, l)ut he has been oblit>'ed to replace it 
 witli liis own money, in order to meet the unbarred 
 claim of the childi'en. lender such circumstances we 
 rei>ard the lodjjment of the money in coiu't by \Va<le, 
 as nothing more than a proceeding; to .secure the 
 fund, so that it shall be forthcomino-, when retpiired 
 to meet the claim of the children. When it is 
 invested, wliich it nuist be, for security, this can 
 neitber accelerate the riji'ht of the children t(j 
 receive tlie income, nor can it confer the right upon 
 their mother, when she could not have enforced it 
 for ber.self, if sbe bad sued alone. To t^ive it to her 
 would be contrary to tbe express words of sub- 
 section 2, for she would thereb;^' derive a (greater 
 benefit from the jud^nient obtained by lier children 
 than she could have obtained if she had brought the 
 action alone. It follows that the inconu; of what- 
 ever money is replaced by Wade nuist be paid to 
 him during the life of Eliza Maria Collings." 
 (1) (189G) 1 Ir. K. at page 350. 
 
(.'O-CKSTI'IS (/IK TKCSTKNT. 
 
 })1 
 
 Loi<l .lustifi' Walkt'i- adds: -" Ml'. W'udc t'oiitciids 
 thai Mrs. Collin^s, tlif tenant for lil'c, is hy hit. <S, 
 suh-st'c. -2, of tlic 'rrusttM' Act, I. SMS, put in tlir 
 same position, as if slic were tlic .sole plaintill'. I 
 am clrarly of opinion that thi.''. is so, just as much 
 » if .'"he Were entitled to and sued for the whoh- 
 principal, and the sul)-seclion was introduced for the 
 xcry purpo.se of nieetine' the case of the joindt'r of 
 one atiainst whom the Statute ha<l I'un with others 
 against whom it furnishecl no hai'. The learned 
 Lord Justice points out that the decisions in ]V<(iif 
 V. (tinipolii ( I ), and III I'l' So)ii.(')'Hi't (2), are to the 
 etl'ect that the life-tenant, auainst whom time has 
 rini, cannot hi' benefitted by a decisicjii in favour of 
 remaindermen. 
 
 The import of sul)-sec. 2, even were there no Otlicr ciisfs. 
 authority upon it, .seems too plain to a(hnit of doubt 
 or confusion. Cases nnist often ari.se, in which the 
 remedy of one beneficiary will l)e barred, while that 
 of another still subsists. In addition to the cases 
 where, the life-tenant bein^' ])arred, the ri<jjht of the 
 remain<lerman is tuiafi'ected, as we have .seen, by 
 lapse of time, another case, which innnediately 
 suii'ii'ests itself, is that in which, by some acknow- 
 ledj;inent on the part of the trustee, i>iven to oik; or 
 more of several beneficiaries, as a<;'ainst him or them, 
 the runninti^ of the Statute has been interrupted. 
 
 (1) U T.L.R. 254; but see jud>?meut as given in Seton on 
 Decrees, Vol. o, p. 'J1'J7. 
 
 (-') (1H94.) 
 
!>2 CO-CESTUIS QUE TRUSTEXT. 
 
 Acknow- This provinioii, unless the bonefit of an acknowlodo- 
 
 Icdfrment 
 
 to one, inent given by the trustee to one beneficiary can be 
 
 lientficinry 
 
 <U)es t.ot help claimed by anotlier in his own action against the 
 
 otlici's. 
 
 trustee, clearly shuts out the latter cestui que trust 
 from the enjoyment of the fruits of any judgment 
 recovered by the former. 
 
 Although Mr. Banning in his work on Limita- 
 tions (1) says that it is still an open question 
 whether an acknowledgment of debt, given by the 
 debtor to some person other than his creditor or his 
 creditor's agent, suffices to take the debt out of the 
 Statute, it is clearly settled, in Oiitario at all events, 
 that such an acknowledgment, except in the case of 
 a debt by specialty (2), will not " obviate the 
 Statute " (3), on the ground that no acknowledg- 
 ment, except one made to the creditor or his agent, 
 imports a promise to pay the creditor, which, since 
 Lord Tenterden's Act (4), is deemed essential. 
 Formerly, in England, an acknowledgment or admis- 
 sion given to a third party was deemed sufficient (5), 
 but, in England, as in Ontario, it is submitted that 
 
 Acknow- 
 ledgment 
 must be to 
 creditor or 
 his agent. 
 
 (1) 2 ed (189L:; at pp. G4-7. 
 
 (2) Moodie v. Bannister, 4 Drew. 432; Goodman v. Boyvs, 17 
 A.E. 531; see ante. p. 38. 
 
 (3) Goodman v. Boijes, 17 A.R. 528, 530: Robertson v. Biir- 
 rill, 22 A.R. 356. But see lioblhi v. McMaliou, 18 O.R. at p. 
 225, and Smith v. Poole, 12 Sim. 17, there cited. 
 
 (4) 9 Geo. IV. Ch. 14; R.S.O. (1897) cap. 146, sec. 1. see 
 Appendix A. 
 
 (5) Peters v. Brown, 4 Esp. 46; Monnisteplien v. Brooke, .'I B. 
 & Aid. 141; HaUiday v. Ward, 3 Campbell, 32. 
 
CO-CESTUIS QUE TRUSTEXT. 
 
 !>n 
 
 vlic law i.s now clearly otherwise (1). In applyinti' 
 the Statute to lej^al demands, Courts of Equity 
 followed the same rule. " I have always under- 
 stood," says Romilly, M.R., " that, since Lord Tenter- 
 den's Act, the acknowledgment oi' promise to pa}' 
 nnist be made to the creditor " (2). Under the law 
 as it stood prior to 1820 it was held in Clark v. 
 Hoiifjhaiii (3), that an admission given by the 
 defendant to one of several parties, whose interests 
 wore similar, enured to the benefit of all to take the 
 case out of the Statute ; ttnd this decision does not 
 rest on an}'^ ^Tound of ogency. But, upon the 
 recent authorities, it would seem that, unless in the 
 case of an acknowledgment made to someone 
 entitled to represent them all (4), only an a,cknow- 
 Icdginent made by the trustee to the individual 
 rci^tui que trust wlio sues, or to his lawful agent, 
 can be relied upon in answer to a '^dea of the 
 Statute. 
 
 If an action be brought as a class action under (Jhiss iction. 
 Consolidated Rule 201 (Ont.), or be an action 
 authorized by Consolidated Rule 20M (Ont.) to be 
 
 (1) Stamford liankinn Co. v. Smith, (18912) 1 Q. B. 7G5; 
 Fmncis v. Uawkrshy, 1 El. & EI. 1052; liogers v. Qidnn, 26 L.R. 
 Ir. J 36; (irvcn v. Humphreys, 26 Ch. 1). 474; Godu-in v. 
 ('(dh'ii, 4 H. & N. 377; Grciifell v. Girdlrstonr, '2 V. & C 676: 
 TaiDicr V. Smart, 6 B. & C. 603. 
 
 (2) Fuller v. liedmau, 20 Beav. 614, 61'J. 
 
 (3) 2 B. & C. 149. 
 
 (4) liohertson v. Burrill, 22 A.R. 306. 
 
i)-4 
 
 CO-CESTl'lS iiVK THl'STKNT. 
 
 brontrht by one of a class without joining tlu' otlu-rs. 
 no jud^inoiit tlu'ivin recovered could avail any 
 uieniber of the class who would himself have been 
 d' barred from suin<>' on his own behalf (I). 
 
 Ah under R.S.O. cap. 72, sec. 4 (2), the former 
 impediment of absence and its effects are done away 
 with in the case of a plaintiff", it follows that the 
 absence of one of several (•cstiiis que trustont will 
 not prevent the Statute ruiniing against his fellows. 
 Perry v. Jackson (8) was authority to this effect, but 
 is now superseded by the statutory provision just 
 mentioned. Although the policy of the law will 
 make the exceptions to the Statute available as far 
 us possible to honest plaintifiis (4), it seems clear tliat 
 no disability of one co-cestwi que trust can be taken 
 advantage of by another for the purpose of extend- 
 ing the time within which the latter must bring 
 action (5). 
 
 (1) Ss. 2, sec. 32, K.S.O. (1897) cap. 129; see supra p. HH 
 and Appendix A. 
 
 (2) 19 & 20 Viet. (Imp.) cap. 97, see. 10; see Appendix A. 
 
 (3) 4 T.K. 516. 
 
 (4) Jiontwright v. Iiontwri(/ht, L.R. 17 Eq. 74. 
 
 (5) See Darby & Bosanquet (2nd ed.), p. 59. 
 
CHAPTER XV. 
 
 STATITK KeTR( )SI>E('TI VE. CoNCl.rSK )N. 
 
 The eoinbintMl etiect of ss. 4 of tlio intoi-pretation Hetv •^peo- 
 
 clause, sec. 27 (I); and of ss. H of st'c. 1^2, K.S.O. oi)eratioii of 
 
 the Statute. 
 (1S!)7) Cap. 129 (2), calls for some brief notice. By 
 
 the former the operation of the Act is extended, 
 retrospectively, to trusts created by instruments 
 executed before the date upon which the Statute 
 liecame operative ; o that all trusts, irrespective of 
 the date of their creation, fall within section 32. By 
 the latter subsection the operation of the Act is con- 
 fined to actions connnenced after the 1st day of 
 January, 1892. But, in such actions, it is (juite clear 
 that the trustee will be entitled to the benefit of time 
 elapsed between the date of the breach of trust, 
 forming the cause of action, and the time at which 
 the Statute came into force. 'I'he Act is retrospective 
 in this respect. The earlier cases decided in 
 England put this beyond doubt. In re limnlcn, 
 
 Andreiv v. ('ooj)cr (3). In re Swiili), Sicain v. 
 BriiKjeman (4), Thorne v. Heard (5): see also 
 
 Stephens v. Beatty (0). 
 
 (1) R.S.O. (1897) cap. 129; 52 Viet. (N.S.) cap. 18, sec. 
 22, 8S. 1, see Appendix A. 
 
 (2) 52 Vict. (N.S.) cap. 18, sec. 17, ss. ;}. 
 
 (3) 45 Ch. D. 444. 
 
 (4) (1891) 3 Ch. 233. 
 
 (5) (1893) 3 Ch. 530; (1894) 1 Ch. 599; (1895) A.C. 495, 
 
 (6) 27 O.K. 75. 
 
STATUTE ItETIlOSI'ECTI VE. 
 
 (Ifffiioes 
 j.ifst'i'vecl. 
 
 \>y sub-Heetion li of section '52, (1), it is t'lirtht'i- 
 provided that tlmt section "shall not dej)rive uny 
 executor or juhninistrator ol" uny rii;ht oi" defence to 
 wliich he is entitled \uulei- any existin<^ Statute of 
 l^iniitations." The insertion of this provision, if the 
 operation of the Statute is limited to actions founded 
 upon ))n,'ach of trust, seems work of supei-ero<jation. 
 The word "trustee," by the definition clause, includes 
 "executors and administrators," and the entire 
 section is framed to pi-es.'i've and extend existino- 
 rights. By no reasonable construction of the section 
 woidd it sciMM possil)le to liold that any " ri<^ht or 
 defence of a trustee, " under any existin*;' Statute 
 of Limitations," is at all impaiied or interfered with, 
 nnich less taken away. 
 
 The presence of this clause would, but for the 
 stron*( view to the contrary taken by tlie Court of 
 Appeal in Hotv v. Earl Winterfon (2), and by Fry, 
 L.J. in In re Bowilen (8), almost justify a contention 
 that the Statute is not restricted in its operation to 
 cases founded upon breaches of trust. Executors 
 are within the definition of trustees in this Statute; 
 and there art; other actions a<;ainst executors, 
 as such, to which existing- limitations did apply. 
 For in^;tance, under R.S.O. (l«!)7) cap. 120, sec. 
 11 (4), an action for an}- wrong to another in i-e.spect 
 
 (1) K.S.O. (1897) cap. I'JK; 52 Viet. (N.S.) cap. 18, see, 
 17, ss. 3, 
 
 (2) (1896) 2 Ch. (520. 
 (:{) 4;") Ch. D. 444. 
 (4) See Appendix A. 
 
CONTLrsioX. 
 
 !»7 
 
 iifquit'seence 
 
 to liis person oi* ["property may ))e brought ai;ainst 
 the executor or administrator of the tort-feasor, hut 
 must be taken within one year from the decease of 
 sucli tort-feasoj'. Hut the wordin*,^ and evident pur- 
 view of section .'i2, taken as a whole, would seem to 
 indicate, almost conclusively, that no other actions, 
 except those founded upon breaches of trust, can 
 have been in the contem[)lation of the Le<;islature 
 when it enacted that provision. And, since tin- 
 decision of the Kn*i,lish Court of Appeal in H<nf \. 
 Eurl Winh'vfoi) (1), it would be rash to advance any 
 other view as to the scojx- of the Statute. 
 
 The exi.stence of the sub-section or clause now l-acln s und 
 under consideration may, however, be made the 
 foundation foi- a sonu'what plausible argument that, 
 other defences, formerly available to trustees, for 
 instance, those founded on laches and acquiescence 
 on the part of the ct'suii qnc trust, not bein^- 
 e.xpressly preserved, the Letjislature nni.st be assumed 
 to have intended to take them away. This 
 ar<,nnnent is stren*,4hened by the fact that, in the 
 Imperial Act, 8 and 4 Will. IV., cap. 27 (2), pro- 
 xifjin^ intci' aim for certain limitations upon actions 
 l)rought to recover |)ro])i'rty vested in a trustee upon 
 any express trust, it was deemed advisable, r.r 
 iiKijori rautchi no doubt, to provide expre.s.sly that 
 nothing in the Act should " interfere with any rule 
 of equity in refusing relief, on the ground of 
 .U|uiescence, or otherwise, to any per.son whose right 
 
 (1) (1890) 2 Ch. ()2r). 
 
 (2) K.S.O. (1897), oap. i:j;j; sec 33; see Appemli.x A. 
 
98 
 
 STATITK HKTI{(»Sl'i;( TIVK. 
 
 I 
 
 to bi'in^- an aclioii is not l)urrt'<l l)y \irtuc ol' tliis 
 Aft." f)Ut so l'iivoi'al)ly arc (Id'cnci's upon ^rounds 
 ot" lac'lii's ami ac(|ui(,'s('i'ii('(' looked upon, so tiruil}' 
 t'stablislicd is tlir nuixiin, ri(/thi iiflhiis, non dovnii- 
 eatibiis <t'(ji(iJiis sahvcnif, that notliiu*;- but an 
 express statutory prohibition wouM rvcr prevent a 
 Court of Ecniitv troni ••i^inii" t'rt't'ct to such dd'enees, 
 ii* well (grounded. 
 
 riciKliiit,'. The Statute, because it bars remedies oidy with- 
 
 out extino;uishin<i- riohts, must be pleade<l as a 
 dci"enct'( I ), and will be deemed })art ol' the b'.r fin'i.('l). 
 
 ('oiiilusidii. The more carefully the construction and the 
 
 lane;ua<:-e of this entire provision, which should provi' 
 of the oreatost advantaii'e to trustees, is studied, the 
 more closely it is scrutinized, the more fully is the 
 truth and force of Lonl Justice Undlev s connncnt 
 upon it borne in ui)on the student. "Section <S " 
 (K.S.O. (l.S!>7) cap. 12!), sec. :\±) "is cumbrously 
 worded," says His Lordship, " and it is difficult to 
 <2^ra.sp the idea which underlies it : but the short 
 i'ti'ect of .section 8 appears to me to be that, except 
 in thi"t!e .specitiecl eases (vi/., fraud, retention by a 
 trustee of ti'ust money when an action is connnenced 
 ao-ainst him, and conversion of trust money to his 
 own use), a trustee, who has committed a breach of 
 trust, is entitled to the benefit of the several Statutes 
 of Limitation as if actions and suits foi- breaches of 
 trust were enumerated in them " i-S). 
 
 (1) Jhttrkiiis V. Lord rnirln/ii, 4 A.C. ')!, ilS-t). 
 
 (2) Pardo v. lihKjhani, 4Ch. App. 735. 
 
 (3) How V. Enrl fVintcrtoii, (18S)()) 2 Oh. at p. (i40. 
 
 II 
 
Relief of Trustees 
 
 FROM LIABILITY FOR TECHNICAL 
 BREACHES OF TRUST. 
 
 59 and 60 Victoriae (Imperial)^ cap. 35, sec. 3. 
 
 61 Victoriae (New Brunswick), cap. 26. 
 
 62 Victoriae (Ontario), cap. 15, sec. 1. 
 
 CHAPTER I. 
 
 TeCHXICAI. BuEACUKS <)!•' 'I'ursT. 
 
 Prior to llu' cnac-tineut ot" the statutory pro- FormtT state 
 
 of law liorc 
 \ ision. witli which it is now projwsed to dcnl hardly on. 
 
 . , , ... trustees. 
 
 \(iy l)ri('ny, ti'ustccs wore, even by the exercise ol 
 
 extraordinary dilio-enco, often unabh' to avoid incur- 
 ring Hahilities for hreacli of trust. Altiiou*;h they 
 had. in the nianau'ement of the trust estate, acted 
 in the utmost ^"ood faith, and liad exercised what 
 would, in orchuary l)usiness atiairs, !>(> deemed a 
 sound discretion and a decree of catition not to he 
 looked Un- in any hut a prudent man, nevertheless, 
 they not unfre(juent]y found that somc^ artificial 
 rule laid ilown hy Courts of Ivpiity had heen dis- 
 regarded, or some (hity whidi those Courts held to 
 l»e [)rescrihed hy statute, or by technical construction 
 of the trust in>trument, had been neglected, and 
 
100 
 
 TKCUXKJAL MItKACIIKS OF TIUST. 
 
 ■ii |i 
 
 i 
 
 I . 
 
 il 
 
 Grounds of 
 liability iivo 
 (iiinierous 
 ami vurii'd. 
 
 that they had thus hiid thcniHclvt's open to a ch.ii*;!' 
 of broach of trust. Thoui^h thcii* coiKhiot ha<l Ix'cii 
 t)oth honest an<l I'caHoiiabli', these miforliuialc 
 trustees conM not claim innmuiity from jx-vsonal 
 h)ss. This, says the Master of the Rolls. Sii* 
 Nathaniel I^indley, in a very recent case, w.-is "a 
 very hai'(l state of the law and one which slincked 
 ones sense of humanity and fairness "( I ). 'It 
 sho(d<ed ones conscience," says Lord .Justice Ki,L,d)y (2). 
 "Now all this has 1)een altered," he adils, lefcr- 
 rin<;' to the provision for the relief of trustees 
 from liahilitv foi' what have been termed 'techni- 
 cal breaches of trust,' first enacted in Kn(;land in 
 1S()(J, and, with some modifications, ad()i)ted in New 
 Brunswick in IS!)S, and in Ontario in IS!)!) (:\). 
 
 'l\) attempt to enumerate, at all exhaustively, 
 oi- even to sunnnarize with any de<;ree of accuracy, 
 tlie various classes of case in which, and the /roinids 
 upon which, ( 'ourts of Kcjuity so held trustees 
 liable, would be a most difficult undertakine- and of 
 maj;nitude far l)eyond the scope of this little woi'k. 
 W<^ can but elance at the "•eneral rules, which 
 appeal- to have o'overned t]\o (/ourts in dealing' 
 with trust(K's, with a view the better to appreciate 
 "the laim; alterations" which, savs Mi'. Justice 
 Kekewich, the let^islature has introduced "in a feu- 
 words dealin<^ with a lar<;e bo'ly of law" (4). 
 
 (1) Pen-hus v.liclhnnii, (1899) 1 Ch. 797 at p. 800. 
 
 (2) S.C. at p. 801. 
 
 (3) 59 & GO Vict. (Imp.) cap. .T), sec. :{; (51 Viet. (X.H.) 
 cap. 26; 62 Vict. ((>nt.) cap. 15, see. 1. See Appendix A. 
 
 (4) Pcrrins v. licllamy, (1898) 2 Ch. 521, 527. 
 
TKCMN'KAL lUUvVCIIKS Ol' TIU'ST. 
 
 101 
 
 Mr. .lusticf StorN'. in his work on l*i(|uit\' JurJH- 
 
 jxiidcncf, (1) says tlmt the cases, in which th(^ 
 
 trustee, for his acts to the prejudice ol" his ctshii 
 
 ijiir trust, will he held i'esj>o!isil»le in e(|uity, ai'»' 
 
 "ditficult to l)e detined." They are as nuniei'ous 
 
 and as varied as the ohjects and the sti'uctiu'es of 
 
 trusts themselves. 
 
 It was fornierlv said that "a trustee is called <i«»i'nil ml»i 
 
 ol" conduct 
 
 Upon to exert pr<'cisely the same cai'e and solici- i)r('Hcrll)ed 
 
 lor truHtet'8. 
 tu<le on hehalf of his rest n I, qiw I rust as lie would 
 
 employ for himself, hut ercater measure than this 
 
 a Comt of K(|uity does not exact" (2). In a late 
 
 case JH'fore Mv. Justice North, however, that learned 
 
 •lud^e says: — " If y(ju find that a trustee has acted 
 
 with trust j)ro])erty as he wouM with his own, that 
 
 is a jtoint in his favour: hut that is not enou<;ii, for 
 
 wiiat mi*^ht l)e reasonai)le for a man to do with his 
 
 own ])roperty mieht not l)e a pro])er dealine- witii 
 
 (rust property" (•*?). 
 
 As put by Lord Watson, in /jraroi/il v. W/iifdi/, in 
 
 (he House of Lords (4) :" As a jreneral rule the law 
 
 re(|uires of a ti'ustee no higher deo-ree of dilij^cnce in 
 
 the execution of his office tlian a man of ordinary' 
 
 l»rtidence would exercise in the mana(j^eni<'nt of his 
 
 own affairs. Yet he is not allowed the .same 
 
 (1) Second Kng. ed. p. H"]. 
 
 (12) Lewin on Trusts, (8 ed.) p. 2U4 ; but sec now 10 cd. p. 
 
 :ii7. 
 
 (:{) In ir Barker, Rarnishaw v. linrkcr, 77 L.T. 712. 
 
 (4) 12 A.(;., 727, T.VS; see also per I.indley, L.J., S.C, 'X.\ 
 V\\. 1). 347, 355. 
 
 I 
 
!l 
 
 I 1 
 
 
 ' ' 
 
 i J < 
 
 102 
 
 His limitcfl 
 disc rut ion. 
 
 He must be 
 fiiiidoiit, luid 
 imisl, oltey 
 the rules of 
 t'fiiiity 
 as well. 
 
 Wlien a 
 trustee will 
 probably be 
 relieved. 
 
 TECHNK AL l!Ki:.\( IIKS oK TItlST. 
 
 • Hscft'tioii ill iiiV('Nliii;j tin' iiioiicvh oI' the trust ms if 
 lie wciT ji jxTsoii sal Juris (Icjiliiio- with liis own 
 estate. Husiiiess men ol' ordinary prinleiice may, 
 and t're(|nently do, select imcstments wliicli are moi-e 
 or less ol" a spet'nlati\'e eliaracter ; hut it is the duty 
 of a trustee to eoiiHiie himself to that elass of 
 investments whieli jire ])ermitted l)y the trust, and 
 likewise to avoid all investments of that elass which 
 are attended with lia/,ar<l. So, so lono- as he acts in 
 the honest observance of these limitations, the 
 oeneral rule already stated will a|)[)ly." Therefore, 
 not only must the trustee he circumspect and 
 vi<rilant as. a ])rudent ])usiness man, l)ut he must 
 moi'eover ouar*! ae;ainst an\- tran.so-ression <»f the 
 rules ])rescrihed b\' the Courts or 1)\' the Leo'islature 
 for the manao'ement of trust jji-operty and the 
 discluiro^e of trustees' duties, or any depart uir from 
 any special directions contained in the instrument 
 creatine; the trust. Moreover, the Court " rei|uires 
 full explanations of all trustees' dealinos and >>f the 
 causes which ma\- have led to outstanding' del its not 
 beino- collected, or to the disappearance of property 
 belon^ino; to the trust estate " (1 ). Any unexplained 
 less will be ascribed to ne^lij:;ence " (2). 
 
 If a tru.stee fails to act as a i)rudent business 
 num, he will probably tind it ditli.'ult to c(jnvince the 
 Courts that he has acted rcasonahhj however honest 
 may have been his intentions ; but in many cases 
 
 (1) Chisholm v BaninnI, 10 Gr. 479. 
 
 (2) lirnini v. Sewcll, 11 Hare 5;j. 
 
TKCIINK Al, ItlfKAt'lir.S ( »!' TIMST. I ().•{ 
 
 \v!ht(', thouH-li jdudciii, he Ims lraiis;^rfs,siM| soiiif 
 
 tccliiiiciil rule, HI' iiiisuii(|t'i-Ht()(Ml soiiM' rt'(|iiir('iiit'iil of 
 
 llu' trust iiistniiiH'Mt. couclitMl, pcilmps, in laii<,niii;4;f 
 
 ilitKcult ol" coiistructioii. lie iimy now Ih' tlccnic*! t<» 
 
 liiivc act«'<l not Mni'ciisoimhly and (o !)»' I'airly cntitlrd 
 
 to ri'licl'. 
 
 In tlu' ^Tcat Niiricty (»!' cases tlial \\a\v claiincMl 
 
 till' attontioM of Courts ol" K(|uity, it is not always 
 
 •'asy to rt't'oncilc the ai)])ar('nt strictiu'ss rcciuircd ni 
 
 some instances with tin- seeming laxity pei'niitt<'d in 
 
 others. Those Couits, howevel', do seem to ha\ e l<iiiiinnih(i 
 
 Ill/is IkuiiI 
 acte(l with unit'oi'niity in never excusine- an un- rxnisui. 
 
 authoi'ized act. or an inlVaetion ol' the I'ules laid 
 
 down by thenisel\-es. IJut, thou;;h a trustee was 
 
 always presumed to know the domestic law ( I ) and 
 
 the rules ol' Kipiity. he was not held liable for the 
 
 non-performance of a trust of which he was, throuj^h 
 
 no fault (4' his own, ignorant (2). And, where the 
 
 (|Uestion was, whether, within his powers, the trustee 
 
 had acted pru<lently, he was so far held not to be " a Tli- tmstco 
 
 is jiot an 
 surety nor an insuivr," tiiat for mere errors of ix-micr. 
 
 judgment he was not held i-esponsible. To render 
 
 himself personally liable for loss to the estate he 
 
 must liave failed to exercise ordinary prudence ; he 
 
 must himself have been ouilty of some wronu' of 
 
 omission or counnission {',]). Jieyond this it would 
 
 (1) Lewin, (10 ml.) 'M2. 
 
 (2) Yoiide V. Chilli, L.K., 18 Eq, G34, G4'J. Misuiulerstiuul- 
 \ug the trust iiistrmiient would formerly not cxcuHe; /// re 
 <'li(i)ii])ion, Dudley \. Cluuiipiini {WSS), 1 Cli. 101, 111; but see 
 now In re Grindey, (1898) 2 Ch. 593. 
 
 (3) Jii re Chaimimi, Cock.s v. Cliapmuti, (1H9G) 2 Ch. 7G3, 775, 
 778. 
 
104 
 
 TK<HN1(AL HUKACMKS <)l' TIU'ST. 
 
 I; 1 
 
 ii';' 
 
 I ;; 
 
 iliM 
 ill' I 
 
 
 Fmudiilt'iit 
 trusti't'f*. 
 
 l)t' ilitiic'iilt to Htatr any rulr or principle to wliieli 
 every (lecision will hv I'oimd to t'oiironii. The 
 Statute will prohaUly he rouii<l to ati'ord icliel' to 
 trustees luueh more fretpieritly in the former class ol' 
 case than in the latter. 
 
 In the case ol" IVautlulent hi'eaches ol' trust, no 
 limitation will evi-r he peimitted, no excuse will ever 
 he accepted in E(|uity. Strict and riy;()rous enforce- 
 ment of liahility to the last extremity is the 
 iuHexihle policy ol' the Courts. Such cases are 
 entirely excluded from the operation of the Statute 
 we are considering', which is expressly ri'stricte<l to 
 cases where the trustee has acti'd himrsfly ; they 
 may, therefore, ))e dismissed from furtlu-r considera- 
 tion. 
 
 Innocent Hut, fortunately or unfortunately, conse(juences, 
 
 trustees _ i ' i i • / 
 
 treated witli which may almost \)c characterized as penal, have 
 
 severity. ' i. \ / i i v v ■ i i ■ 
 
 been meted out l)y t ourts ol h,(pnty to nniocent as 
 
 well as to roguish trustees, where their management 
 
 of the affairs of their trust did not accord, as 
 
 Mr. Justice Story says, cpioting Lord Bacon, with 
 
 the dictates of " the general conscience of the realm, 
 
 which is Chancery " (1). Though, theoretically, in a 
 
 position analogous to that of a gratuitous bailee, the 
 
 ijfenerous treatment accorded to the latter individual 
 
 in the Courts of Law would be a m(wt welcome 
 
 surprise to a trustee brought before a Court of 
 
 E(piity I ) answer for some inadvertent breach of trust. 
 
 (1) Story's Equity, (2 Eng. ed.) p. 874; Bacon on Uses, by 
 Rowe, p. 10. 
 
CHAITKK II. 
 
 So.MK DlTIES AND ResPONSIIIILITIKS. 
 
 " His (lisciction," say.s Lord .lustifc Fry, speak- nutits 
 
 ,. , , , . , , ... paiiinioiiiit. 
 
 m;;' oi tlu' trustee, " is never uii nnsolute one ; it is 
 
 ulways liniitod by tlie duty - tlu^ tloniiiiant duty, the 
 ^uidi'^i; duty -of recovering, seeuriii<;, and applying' 
 the trust fund. And no truHtee can elaiin any rii,dit 
 of discretion which does not aojree with that para- 
 mount oblitjation." (I) Tliese may he said to ))e 
 palpable (bities of trustees, to which the (.Courts 
 exact a ri<;id adliennice. 
 
 Thouo-h tlie irustee, because the confidence 
 reposed in him is personal, is bound t ) (jivo to his 
 <-i'sf(ii que trusf the benefit of liis own judgment, " I 
 do not think it is true," says Lord Halsbury (2), 
 "to say that one is entitled to consider the >!Decial 
 (|ualities or de<^ree of intelligence of the particular 
 trustee. Persons who accept that office must be 
 supposed to accept it with the responsibility at all 
 events for the possession of ordinary care and 
 
 prudence." A discretionary trust can never be dele- Emiilovnicnt 
 
 of iifjritit>. 
 li'ated, it is said, but, subject to this exception, if he 
 
 select properly qualified per.sons (8), and there is a 
 
 moral necessity for his doing .so, arising from tlie 
 
 I 
 
 (1) In re Bmgdoi, :]H Ch. D. 546, 571. 
 (•J) Learoyd v. Whitcley, 12 A.C. at p. 7:J2. 
 (;}) In re Weall, 42 Ch. D. 678. 
 
0(i 
 
 SOME DUTIES AND KESP(j\SlJUUTIES. 
 
 :;,! 
 
 '...; 
 
 'I 
 111 
 
 1 
 ! ;lr I 
 
 I 
 
 nsa<i'('H of mrtiikiiid, or the regular conrse of busiiiesii 
 ill administerincr such property (1), tlie trustee may 
 always justify the euiployinent of a(ji;ents. Indeed, 
 in matters in wliich he is not and cannot b expected 
 to be liimself experienced, a trustee is not only 
 entitled to rely upon, but he may be charoeable with 
 negligence should he fail to avail himself of, the 
 Kistrictioiis. services of skilled and experienced persons. In 
 doing so, howe\er, he must always be careful not to 
 accept the bare opinions of such skilled persons in 
 matters upon which he should exercise his own 
 judgment, based upon the data furnished by the 
 }>rofessional men employed (2). And the trustee 
 must take care, for instance, not to rely upon the 
 advice of a solicitor respecting a matter of land 
 value, nor rpon that of a real estate surveyor 
 respecting the propriety of an investment apart 
 from the value of the property (8). Though the 
 employment of an agent to collect or receive trust 
 jiropert}' ma}' be lawful, undue delay in rec pairing 
 an accoiuit (4) from any agent, or neglect co super- 
 vise his acts (5) will be unjustifiable ((>)• The same 
 
 P 
 pi 
 
 illi 
 
 (1) Tn )•(■ Spcifiht, SjH'iffht v. daitut, 9 A.C. 1, 1!»: 22 
 Ch. I). 7l!7. 
 
 (2) Lcaroiid v. Whitcleij, VI A.C. pp. T,\2, 7.'}4. 
 
 (;i) 8. C. pp. 732, 7:54. See also Frtj v. Tapsoti, 28 Ch. D. 2(i8, 
 (•4) R.8.O. (1897) cap. 129, sec. 28. See Appendix A. 
 McCarler v. McCartcr, 7 0. K. 24:5. 
 
 (5) Low V. dcinloy, 18 S.C.R. i'Sii; Can-Ktiiers v. Cdrnitlicis, 
 (189G) A.C. (5r)9. 
 
 (6) An exception wa^ appai'ently made to tliis vnle where the 
 settlor had stipulated expressly (tliougii only verbally) with the 
 
SOME Dl'TIES AXI) HESI'<)XSII'.IE1TIB:s. 
 
 107 
 
 piiueiples apply })ot\veen co-trusteos us between a Co-tm^tecs. 
 trustee and a stnmtjer ao-ent. (1) Of course regard 
 iinist be liad to any express direction of tbe trust 
 instrument (2). The indenuiity clauses infused into 
 every trust instrument by Courts of E((uity, and noM' 
 ly statute (8), are applied upon these principles. 
 
 Trustees, findino- that the trust estate or any Getting: in 
 j)ortion of it is unsecured or upon unauthorized or 
 unsafe investments, must, without undue flelay, 
 " reduce it into possession " (4). There is no 
 inflexible rule as to the time which will V)e con- 
 sidered reasonable for this p'lrpose. Each cast; 
 uuist be governed l)y its own circumstances: and 
 certain " reasonable discretion " nnist be allowed as 
 
 the estate. 
 
 trustee that a certain named agent should receive, invest and 
 iiceumulateall trust moneys, and tliat the trustee should have no 
 trouble or concern in the matter. Under such circumstances a 
 trustee was held, in Mitchell v. lUtchcii, VI (ir. SS, 11 Or. nil, to 
 he exonerated from liability for moneys misapiJropriated without 
 his knovvleiige by the ajxent. But see Cdrnilhers v. Ciiniithcrs, 
 (1S9(}) A.C. (i59, and compare with Mivl-lchurgli v. rarh-ry. )i 
 Or. r)03, which, though probably no longer good law as to a 
 consenting ('(■«/«* r/i trust (K,8.(). (1897) cap. l'2{^, sec. ;>0: see 
 .\l)pendix A), is certainly sound as to cvstiiis qm IrKslt'nl who do 
 nut, or cannot consent. 
 
 (1) III re Crowtcr, Cnnctcr v. Hiiiiiiaii, lit O. li. 1.')!'. //' re 
 I'loirer and Miiyopolitan Board of Works, 'J7 Ch. I). .■>!!■_': ('itji 
 Hank V. Maiilson, 3 Chy. Ch. ;{;i4. 
 
 (2) liiirritt V. Burritt, 'J<) Or. ;3'21. 
 
 (3) R.S.O. (1897) cap. I'JO, sec. 3. .")li Vict. (X.S.) cap. Is, 
 sec. 9. See Appendix A. 
 
 (4) Seiillliorpe v. Tipper, L.K. 13 E(i. 23'J: Hiaihis v. lunpson 
 •2-2 Beavan, 181. 
 
Ids 
 
 Kfitltv 
 
 SOMK IX TIKS AND llKSI'ONSIIMhITIKS. 
 
 to till' i-('iilizati()ii ol" uiuiutliorizcd s(;cui-iti<'s (1), and 
 tlic collection of outstanding- dchts. (2) Tlicre are 
 now certain statutory provisi(jns |)rot(!ctin<^ l<In<;IiHh 
 trustees who retain unauthorized investments (8), 
 but these <lo not aj)[>ear to he in force in any of the 
 ( 'anadian provinces. 
 
 Where the investments, upon takin<^ ovei- the 
 trust estate, are found to hi^ of an authorizec] kind 
 and adeipiate, the ti'ustee will, of course, uierely 
 retain them. If the trust property he realty, and 
 the trust contemplates such [)i'0})erty hein<( retaiiuid, 
 the trustee will, subject to any special directions 
 contained in the trust instrument, in resjiect to this 
 portion of his trust, })e obliged to j)erf()i'm, as would 
 a prudent business man, the usual w^ork inci<lent to 
 ownei'ship of such real (estate (4). But, if tlu^re l)e 
 an e\{)iess direction in the trust instrum(;nt for the 
 
 (1) /// ;-r CliiipiiKni, CdcLs v. Chfqnuau, (IHlid) 2 Cli. TCi.'J, 
 77(); Eniul v. (ionloii, \'.i (jv. 40; Buxton v. liuxloii, 1 My. 
 iV: Cv. HO. 
 
 (l!) lie (hiciis, 47 L.T. (il . He may even ((oiiiitouiid or 
 n'l('ii.><o ill (^\<•l■(MHinf,' a sound discrotioii, /lli<r v. Marshdll, ',\ P. 
 Wins. :iH| ; l>ut niust lie prcfpai'ed to show f?ood roasons. 
 Unltliciii V. ThoiHds, 15 <{r. II!); U.H.O. (1H97) cap. 129, see. 
 ;!:». Sec Ai)]icndi.\ A. 
 
 (If) r)7 & ")K Vict. (Imp.) cap. 10, sec. 4. 
 
 (4) See O.J,'.. Zimmenriini v. Wilcox, 1!) Can. L.T. ;i:i7, X\H; 
 Frrritr v. Tnixiiniirr, 24 S. (!.!{. H(i; I'enioti v. Seaman, Kiiss. 
 N.S. Va\. I). 190. But the o.xpenditure of money for improve- 
 ments or n'jtairs is not a matter in which he has an absolute 
 discretion hy any means; Howes v. Strath more, K Jur. 92; Vyse 
 V. Foster, L.l{. H ('h. Ajip. :!09; (iiUHami v. Crawford, 4 
 Ir. \{. K»|. .T) ; ^'nV/r/v v. (lihson, 21 W.K. HIH; lileaznrd v. 
 lyiiallei), 2 W.K. (lOH : In re Cohjcr, Milliken v. Snelling, 55 
 L.T. :i44. 
 
 ':;li 
 
SOMK DKTIKS AM) KKSI'ONSIMI LITIKS. 
 
 (>!» 
 
 s.ilc or conversion of this oi- any otlu^r class of 
 property, or if tho purposes of the trust re(|uire such 
 ;i step to })(j taken, and the trustee omit to sell aii<l 
 convert vvhcni h(; ou^dit(l), and a loss is therehy 
 occasionefl, alth()u<(h in i-elVainin^- I'roni seMino- li)> 
 acted, as hv, thoui^ht, in the h((st interests of the 
 estate, he will l)e held lial)Ie for' having- failed to 
 pei-forni a manifest duty. 
 
 Havin<,' reductid th(^ trust estat*; into j»ossession, Oustody. 
 the tiust(!e must, p(^ndin;^' its })erman«!nt inv<;stment 
 or its distrihution, <;uard it vv^ith the same care and 
 fidelity as a ])rudent man v/ould his own. I'oi- any 
 nej^]i<;(!nce he will he I'esponsihie. Monc^ys deposited 
 in l)aid\ must not he plac(id to th(( trustee's own 
 ci-edit, noi- allowed to r(;main unchily lono(2); nor 
 may trust funds \n'. unnectsssarily conimitted to, or 
 left under the control of, any ao;ent {'i). 
 
 If the trust does not permit of the innnediate invcstiiiciit a 
 distrihution of the estate, hut contem|)lates its 
 investment, tin; trustee must diliu('ntly seek such 
 investnu^its as arc; authorized. He cannot allow the 
 fund to remain unproductive, or merely on deposit at 
 inten^st, without makin<r himself accountahle for aiiN' 
 
 (1) PJmcN V. /i'wt'.v, II (ir. IJ'J"); drove v. I'ticc, l!(J IJcav. 
 lOU. A rcaHoiialde diHcrcti i as t<» ti/ric will lif allowcii cvi'ii 
 under thi'HtM'ii'cuuiHtiiiu'OH. Jiiil sc^o /'//(////w v. I'hiUips, Fn-otii. 
 Ch. Ca. 11. 
 
 (2) dann v. Cuun, \V,\ W.W. 40. 
 
 (:i) Winuic V. Tempest, \\\ T.li.K. \\m \ liosloel: v. rioiier, 
 h.U. 1 Fq. 2U; Jiaiitie v. Eaxlern Tnist Co., 2K S.C.U. (;0(i; 
 oO N.S.Ii. 17;J; In re lieUdiinj and Afetropolilan Hoard of Works, 
 24 Oh. D. 387; UhoHt v. WnUer, t) Beav. 497. 
 

 
 SO.MK DCTIKS AND liESPOXSI ItWJTIPX 
 
 Lawful 
 invostiiients. 
 
 Ml'- , ^agt's. 
 
 li -I 
 
 los-^ (if iiicoiiir to the rest II is (juc triusLiiil iirisiii;^- 
 iVoiii his railur*' to invest (I). 
 
 In niakiuii' l>is invjUHtnients, unless some others be 
 authorized by the trust instrument (2), the trustee 
 must eontine himself to sueh as are prescribed by the 
 Statutes in that behalf {'-i), whieh virtually em))ody 
 all classes of investment ]>ermitted by the rules of 
 Courts of Eipiity, as well as son»e others. If lending- 
 upon mort^i^aov of real estate, he should securi! first 
 mortiiaut's, (4) and should ad\anee to an amount not 
 exeeedinu", ivt the most, two-tliirds of the vai ir of the 
 
 > I 
 
 •■n 1 
 
 ,! i 
 
 (1 ) Spritit V. Wilson, ]'.) O.W. -JS; tfiiinl v. (liililv, 8 (Jr. 4r)9. 
 
 ('-*) Spociiil diivotioiis will poiierally not lie construed so as to 
 justify what, in their abseiiee, would be breaches of trust, 
 unless such construction be nnavoi(hible. Smith v. Siiiilh, l.'i 
 (Jr. SI: Lcirisy. Xnhhs, S (Jli. 1). ")!)]; Spmll v. It'ilsoii, 1!) O.K. 
 'JS; rcrlcif V. Snow, Huss., X.S. Eq. 1). ;573; IIdIiiics v. Moore, 
 2 Moll. ;i2S; CiiUU'cott v, Caldcvotf, 1 Y. & C.C.C. 312. Where 
 there is a discretion, the course which the Court would take 
 luis l)een said to be the test of nej^lifjenee. Ifdnwr v. 
 T'lrkiiif/toii, 4L..I., Ch. (N.tS.) lt);J;but see lie Mavhni-ic Trusts, 
 28 O.K. ;)12, where a letter of the settlor was held to justify an 
 investment on personal security, a power to vary the directions 
 of tlie deed as to investments h.tvinp Iteen reserved; the letter 
 was treated as a defective e.xecutiou of such power which the 
 Court should aid. 
 
 Ci) K.S.O. (1HS»7) cap. 130 (see App. A); K.S.B.C. (1897) 
 cap. 1S7, sec. 11; K.8. Man. (1891) cap. 14(5, sees. 22-2(5; .'il 
 Vict. N.S., cap. 11, sec. r)8. There appears to be no 
 corresponding statutory provision in New lirunswick, where, 
 therefore, recourse must be Inid for guidance to tlie rules of 
 Courts of Equity. 
 
 (4) Lewin on Trusts, (10 ed.) p. 371; but see In re Christ 
 Chiirrh, Durtinoiith, Kuss., N.S. E<i. 1). 4(55; also In re Turner, 
 (1897) 1 Oil. at p. 543; Xorris v. H'rii/ht, 14 Beav. 291, 307, 
 30S: Fitzijcrahl v. I'rinijle, 2 Moll. .■)34. 
 
SOME IHTIKS AND l{i;si'(»NSII!I MTl KS. 
 
 I I 
 
 jiroperty ( I ), wliiili imist, inoivovcr, he itscll' ol" ;i 
 
 satV and propiT kind for trustcx's' invt'stnu'nt (2). 
 
 'I'nistct'S may now absolutely protect themselves in I'lotictiuu. 
 
 Kn^Iand {''\), Ontario (4), and Nova Scotia (5), by 
 
 complyini^' with the pi'ovisions ol' the Stat. 
 
 respecting such investments. The various ways in 
 
 which trustees may oti'end in the investment of the I'iit''ilitii'>'. 
 
 trust estate are I'ar too numerous to discuss heiv. 
 
 They may invest in unauthorized sccui'ities, but 
 
 entirely at their own risk as to loss ((»), both ol" 
 
 capital and income (7), and cannot clain» to set ofl' 
 
 aii'ainst a loss made U})on one unauthorized in\est- 
 
 ineiit a o-ain above the oi'dinaiy made upon 
 
 another (<S). 
 
 Pendin*; final distribution, the trustee must Inconu'. 
 dilie'ently collect and faithrully apply the income 
 accordini;- to the re(|uirements of the trust, either 
 expendin*;- or accunudatin*;' it as may be prescribed. 
 
 Finally, he nnist, when the i)roper time comes, I'istiii.ution 
 satisfy himself beyond doubt that the trust estate 
 
 (1) But SOP Til ir (lodfreii, 23 Ch. D. 48.'!. 
 CJ) Learoijil v. Wliitrfrij, V2 A.C. 727. 
 (15) 51 and r)2 Vict. cap. 59, see. 4. 
 
 (4) K.S.O. (IS97) cap. 130, sec. 8. 
 
 (5) 52 Vict. (X.H.) cap. 18, sec. 13. 
 
 (()) Cloiuih V. HoikJ, '^ M. & Cr. 496; In re Ilnxjilcii, 38 Cii. J). 
 r)4(j, 5(>7, Fi/lrr v. Fi/lcr, 3 IJeav. 550. 
 
 (7) Jic (liihiiKiir, 13 O.K. 035; /'atcrsoii v. Ln'deij, 18 (»r. l,"!: 
 Hanisoii V. liaiidall, 9 Hare. 397. 
 
 (8) n'/V(>.s' V. dreslKiiii, 2 Drew. 258, 271 ; In ir linihrr, 77 
 L.T. (N.S.) 712: Jiohiiison v. liohiiisoii , 11 Beav. 371, 375; 
 Fit teller V. (irccii, 'Xi Beav. 420. 
 
I:> 
 
 SO.MK DITIKS AND IJKSI'ONSiniLlTlES. 
 
 Many other 
 duties. 
 
 Breach of 
 trust defined. 
 
 Spfciul 
 direetioiifs. 
 
 passt'H into till' Imnds ol* thos(> who jirc l('<;iilly 
 entitled to it, and whose receij)t of it will efi'crtnally 
 ac(jiiit and disehai<;t' him (1). 
 
 Alany incidental duties and res])onsihilities, 
 which attach to almost every trust, have been neces- 
 sarily overlooked in this synoptical outliiK'. Most 
 ol' these are ol"ten not expresHod in trust instruments, 
 but Courts of Eipiity expect them to V)e steadily 
 acted upon and executed just as if the}' were so 
 expressed, and in respect of an}' of these a trustee 
 may vi^ry innocently become ^jfuilty of a breach of 
 duty, which is l>reach of trust. In tine, as stati^d by 
 Mr. Underhill, "any act or ne<;lect on the part of a 
 trustee, which is not authorized or excu.sed by the 
 terms of the trust instrument (2), ov by law, is 
 called a breach of trust"' (8). 
 
 Almost every trust instrument contains some 
 special direction, confers some unustial power, or 
 imposes some extraordinary duty. Of these it is 
 impossible to say anything except that such jxnveis 
 nuist be exercised within their limits, such duties 
 nmst be dischar<j;ed according; to the terms in which 
 they are prescribed, and such directions nuist br 
 complied with accordint^ to their spirit, if not accord- 
 ing to their letter (4). 
 
 (1) Tn re indhcs, Piiwcll v. Hidhs, :i3 Ch. D. ooll; Iuirr.->- v. 
 Hickman, 30 Beav. I'M; Sporliv. liarnabii, Hi W.li. 151. 
 
 (2) Re Hurst, GIJ L.T. 665. 
 
 (3) Trusts and Trustees (4th ed.) p. 12, 
 
 (4) Cocker V. Qnai/lc, 1 Russ. & My. 535; liateman v. l>nris, ;> 
 ^fadd. 98; Oreenham v. (iihbenon, 10 Bingham 363. 
 
SOME IHTIES AND RESPONSIIJIMTIKS. 
 
 i:{ 
 
 The rrsful nor trust iimv, bv eonoun'oncc or f'r.s/ni iiiic 
 
 lni'>i iH'oinpt- 
 iUMiuiesct'iiet.' thoivin, or hv so conduetiui; himst'll" as im; i.ifiieh 
 
 ot tll>;-t. 
 
 to iiiduc'c it, or to mislead the trustee into it (I), 
 debar hiiiisell' iVoiii lioldine- tlie trustee responsibh' 
 i'or the eonse(iuences ot" any breach ol' trust (2). 
 He may even render his interest in the trust estate 
 liable to be impounded lor the indenniitieation ot" a 
 trustee, who has acted at his instillation or reijuest, 
 or with his consent in writin<; (3). 
 
 The severity with which trustees were foi'merly Hxcusf tor 
 
 t'oriiier 
 treated, when, without any moral default, they were st-veiity. 
 
 >,niilty ol" breach of trust, was oidy excusable upon 
 
 the old basis of the open-door of the Court of 
 
 Chancer}', whose aid and advice were always at the 
 
 service of trustees (4). " In the old days, when a 
 
 trustee could <j;et rid of his trust entirely by throw- 
 
 int; the whole of the obliteration on the Court of 
 
 Chancery, it mi»;'ht have been reasonable to hold him 
 
 to the very strict i)erformance of his trust, which we 
 
 (1) Ford V. ('lidiKller, K Or. S.'). 
 
 ('J) Emus V. licin/oH, 'M Cli. J). ;iu'£); Han-isou v. Harrison, 14 
 CrV. 58G. 
 
 (:{) K.S.O. (1897) cap. ILM), seo. :]0. (See Appendix A) ; 52 
 Vict. (N.S.) cap. 18, sec. 15; 51 & 52 Viet. (Imp.) cap. 59, 
 sec. G; <ir(tfitli v. Hiojiies, (1892) ;! Ch. 105; ChiUn,<jworth v. 
 Clinnibvrn, (1890) 1 Ch. 085; In re Sonifrset, Somerset v. E<irl 
 I'niilctt, (1894) 1 Ch. 231; Bolton v. Curre, (1895) 1 Ch. 544. 
 i'rior to the Statute see Sawi/cr v. Siucyer, 28 Ch. D. 605; see 
 :ilso liaijne v. Eastern Trust Co., 28 S.C.R. 000; 30 N.S.H. 
 '73. As to manner of raising and dealing with such a question, 
 see In re Holt, In re RoUasou, Holt v. Holt, (1897) 2 Ch. 525. 
 
 (4) Per Rigby, L.J. in Perrins v. liellamii, (1899) A.C. 801. 
 
 
14 
 
 SOME DtTlES AND HESI'UNSiniLlTIK.S. 
 
 
 know was in those rlays cnt'orctMl (I). Hut now, 
 when that cjinnot he done, and there is no longer the 
 power ol' ;;•( ttini; rid of tlie trust hy throwing- it on 
 the Chaneery 1 )ivisi()n, as we used to do by throw- 
 ing it on the old Chancery Court, I do not think 
 that the hiw would he t(jh'rated (I do not think it 
 waH toh'iatt'd before the passino- of this Act) {'2) 
 whicli would make it reasona))le that trusti'es should 
 ])e held to the strict liability to which they were 
 held in former days" (.S). 
 
 How far the Statute enables the Court to ndax 
 its former rigour, may now be advanta<»;eousl3' 
 considered. 
 
 
 I •)> 
 
 (1) Applications to Court, for directions, R.S.O. (lH97),(>np. 
 129, sec. TO: liL> ami lili Vict. (Imp.) cap. 35, sec. 30. 8ee 
 Appendix A. 
 
 (2) 59 & 1)0 Vict. (Imp.) cap ;}5, sec. ;i. 
 
 (3) In re Boberts, Kiiitjht v. IMwrls, 7(1 L. T. at p. 4S4, per 
 Kigby, L..) , 
 
 iiiiljl 
 
 I 11 ! ii 
 
 iiiilj 
 
 li 
 
 I! i| 
 
 i'Hi 
 
 iiill 
 
CHAl'TKH III. 
 
 1' 1 1 K S r A'l' L- IK — Its K v i' ix r. 
 Tilt' stututoi'y provision dcsiuinMl to ;;"iv«^ to the ^^ I'cm'fHMMl 
 
 ' , OlliU'lniLMll. 
 
 ('ouit tlic iiicaiis iind tlu' power of slicwiiij^ more 
 consideration, than had been its wont, to " honest " 
 ti'ustees, and which the leariuvl Master ol' the ilolls 
 (Lindley) twice in the same jnde-nient speaks ol" as 
 " that extremely l)enetieial enactment," is, as adopted 
 in Ontario, in the following; words : — 
 
 " It", in anv ])roc(!edin<>' aU'ectino; trustees or trust Its terms, 
 property, it appears to the Court that a trustee, 
 whet her appointed by tlie Court or by an instrument 
 in writing- or otherwise, or that any person who in 
 law may be held to be tiduciarily ri'sponsible as a 
 trustee is or may be personally liable for any breaeh 
 of trust, whether the transaction alle<;ed or found to 
 lie a breach of trust occurred before or after tlu> 
 jiassin*;' of this Act, but has acted honestly and 
 reasonalily and ou<;ht fairly to be excused for the 
 breach of trust and for omittino; to obtain the 
 • lirections of the Court in the mattei* in which he 
 (onnnitted such breach, then the Court may relieve 
 the trustee wholly or partly from personal liability 
 for the .same " (1). 
 
 (1) 62 Vict. (Ont.) cap. 15, .sec. 1; 61 Vict. (N.B.) cap. 
 'Jti; 59 and 60 Vict. (Imp.) cap. 35, sec. 3; see Appendix A, 
 where tliese provisions are given in full. 
 
IKi 
 
 IIIK ST AT I "IK ITS KFI'KCT. 
 
 Its «t'iuiriil " 'I'lit' law as it stood at the luissinu' dl' tin- Act 
 
 is not iiltcrcd, but a Jurisdiction is <;iM'U to tlui 
 Court under special circumstances, the Court l)eini^ 
 satisfied as to the several matters mentioned in tlu; 
 section, to relieve the ti'ustee ol" the conse(|Uences ot* 
 a br(!ach of trust as re<^ards his personal liability " ( I ). 
 
 Statute to be 'i'hat this enactment is to be lairlv and liberally 
 
 liberally 
 
 construed. construcfl, SO as to atibrd I'eliel" to trustees, is 
 
 recoj^nized in all the cases which have l)een decided 
 
 upon it. Ki<^by, L.J., in J ii /v Jiohcrfs, Kitiijhl v. 
 
 Kolx'i'ts (i), says, " I consider that that section has to 
 
 be, carefully no doubt, but not ^"rudi^intily, exercised 
 
 in favour of trustees wlio have acted honestly and 
 
 reasona})Iy," and in the same case (8), Lopes, L.,]. 
 
 cites with approval this ])assaije from the judti'ment 
 
 of Mr. .Justice Bvrne, in Id re Ttirncr, lim'h'i' v. 
 
 Ivimpji (4-), the first case upon the Act : — " I think 
 
 that the section relied on is meant to be acte(l upon 
 
 freely and fairly in the exercise of judicial discretion." 
 
 Althouoh this may, therefore, perhaps be regarded 
 
 as the cardinal canon of interpretation applicable to 
 
 this Statute, the number and the class of ca.ses in 
 
 wliich it will be found of material assistance to 
 
 trustees may not prove to be so extensive as mioht, 
 
 not unnaturally, be anticipated. 
 
 (1) Per Stirling J., In re Stuart, (1897) 2 Ch. 583, 590. 
 
 (2) 76 L.T. 479, 485. 
 
 (3) At p. 484. 
 
 (4) (1897) 1 Ch. 536, 542; also In re Stuart, (1897) 2 Ch. at 
 588. 
 
TIIK STAII ri: ITS KIKKCT. 117 
 
 TIk Oiscs, ill wliicli tllc St.-ltlltf liiis )ilrrj|(|\- Ihtii I'tw chm'^ as 
 
 y.l. 
 
 • liscusscd, jiic conipjual i\c|y Tew. owiii^^ tn I lie !('(M'iit 
 
 • late ol its ciiiictKii'iil. To rx])laiii its pros isioiis, so 
 liii- as llic judicial exposition wliicli the cases atlonl 
 tlii'ows linhi upon tlieiii. alludiii;;' incidentally to some 
 points not covered \>y tlie decisions, will lie llie 
 purpose of this and tin- succeedin*^' cliapt<'i's. 
 
 Uv the opeiiiii''' words of the I'jedish section TIhj Court 
 
 I'liii only 
 " if it apj)ears to the ( 'oiirt '" it is made clear that, io-t upon 
 
 (•\ illlMICM'. 
 
 i'l a|)]>lyiii;4' the j)ro\isions of this Statute, the ( 'ourt 
 can only exercise the ijiscretioiiary powers which it 
 confers, w.lieii, Ity [iroper e\ idence, such circumstances 
 are shown as make it apparent that the conduct of 
 the trustee has l)eeii honest and reasoiiahle, and such 
 as ouo-ht fairly to l>e excused ( I ). The onns of 
 estahlishini;' lliis is ujion the trustee, ainl in the 
 absence of sutiicieiit e\ idence the Court cainiot, 
 however anxious to he indulot-iit, surmise or conjec- 
 ture circunistaiices of justification or palliaticMi (2). 
 The breach of trust heiiio- shewn or admitted, the 
 defiuice atibi'detl l)v the Statute can only be made 
 available l)y the produetion of comjx'tent and 
 sufficient evidence, thou*.' the Court may, and will, 
 draw all leoitinuitc inferenecH from tacts, of which it 
 is put in a position to take judicial co^jnizance. 
 
 (1) fn IT Sliiort, Smilh v. Sfudrt, (ISf)?) 2 Cli. 'tSli, ;'•$)(); In re 
 I'lmtcr, Barker v. Ir'niicij, (1H97) 1 Cli. ");{(]; /// re Jiarker, 77 
 L.T. 714; III re linherls, 7G L.T. nt p. 484, 
 
 (2) IVood V. MhhlhtoH, 7t» L.T. 15,'). 
 
MM 
 
 TIIK STATITK ITS i;i'KK< T. 
 
 Mi'i'iicii i>r 
 
 trust is tlic 
 liiixis <.t' !>!(' 
 
 SiMllltr. 
 
 Wliu lll'f 
 
 I I'llstffS 
 
 witlliri I he 
 A.-l. 
 
 I'lxcciititrs. 
 
 Till' IcMiinlMtioM (>r the Stiililtf, (hat uliicli it 
 iissiiiiit's as its liasis (I), is an rxistiii;;' lial)ility lof 
 hrcacli ol' tiiist allfycfl of IoiiikI ; and the |»('fs(ni to 
 ()(' iclit'\ ('(| is 'a tfiistcc siiii pi irihr, nvcimWw*^ to 
 till' Ni'W lli'iiiiswick Act (2), "a tfustcc," expressly 
 incliidiiie' ••jiii executof or ailiiiiiiistratoi," according' 
 to till' liii])i'rial Statute (;{), or. accordiii;;' to the 
 ( )utario enact iiieiit (4), "a trustee ' or " '\- person 
 who may in law he held to he tiduciarily responsihle 
 as a trustee." Now an executor, thoueh I'oi many 
 purjioses treated hy Courts of Kipiity as a 
 trustee (.")), is not a trustee within the iiieanin;;,' ol' 
 'I'lie Trustee Act, at all exeiits until the estate is 
 cleared hy payment of dehts ((>). When it is 
 intended to include an executor or administrator 
 under the term "trustee" in a statute, it is usual (7), 
 ir Jiot im])erati\e. that that word shall, hy an expr(»ss 
 (letiniti\<' pro\isi()ii, i)e so extended. Therefore, 
 while under the I'jiulish Act, at the suit ol' a creditor 
 r<ir a ihrashi ril (S), the pro\ision now under con- 
 
 (1) I'rrriiis V. liillaniii, (1S<)9)1 Cli. at pp. 80(1, m'2; (1898), 
 •J Ch. -■••27. 
 
 (2) ()1 Vict. cap. 'J(i. Sec Appendix A. 
 
 {[]) ")!) & (!0 Vict. cap. If."), set*. 1, ss. ,. and st'c. 11. 
 
 (4) iVJ Vict. caji. 1"), sec. 1. 
 
 (a) Williams on K.xcciitors, (9 ed.) pp. !()91, 124:}, 1870: 
 Ciiinniiiin V. L(()i(lnl lUnikiiKj dud Loan Co., 19 A.li. 447: 
 reversed 122 S.C.R. 24(i; hi re Ht/aft, 38 Cli. D. C.on. 
 
 {()) Ealoii V. nai)iis, W.N. (1894) .'$2. 
 
 (7) R.S.O. (1897) c. 129, s. 27; 51 Vict. (N.S.) e. 11, 8.3. 
 
 (8) /)( re Kan, ^oslei/ v. L'ay, (1897) 2 Ch. 518. See also hi 
 re Uohvtis, KitUjUt v. liubtrls, 77 L.T. 479. 
 
 I ; '-ij- 
 
 iiii 
 
 v.i 
 
THE STATITE — ITS EKKECT. 
 
 !» 
 
 sidcmtion is ('X[)rt'HHly iiuMle availiil)!*' to an ext'ctiior 
 or atliiiiiiiHtratoi' \)y tlic definition claust', it is pro- 
 bable that it will not be available to liiiii in New 
 HrunHwifU ; and, in Ontario, tlioueh an executor so 
 Hue<l will probably be re^^arded as covered by the 
 rather inapt phrase; "any pcirsoii who may in law be 
 held to be tiduciai'ily responsible as a trustee," it will 
 perhaps be safer not to rely too much n\nm this view 
 until our CVjurts have ho decided. For, as stated by 
 Mr. Justice Story in Sntifh, v. Riiwf^ ( 1 ), " it is not for 
 Courts of Justice, pvoprlo marte, to provide for all 
 ihe defects or mischiefs of imperfect legislation." The 
 words; " in law," are presumably nc^t used here, as 
 was f(jrmerly tlie phrase, " at law ", in contra- 
 distinction to " in ecjuity." If so, they would lead 
 to a manifest absurdity, for " at law " the trustee 
 and his liduciar}' responsibility were unknown (juan- 
 tities. These words, "in law," will, therefore, 
 probably be held to mean, (3r rather to have been 
 used as an e(|uivalent for, " in t le Courts," which 
 now of course administer law^ and ecpiity conciu'- 
 rently. 
 
 How far executors are covered by the Ontario 
 Statute may possil)ly be decided in Stewart v. 
 Snyder' (2), now standing- for judgment in the 
 Ontario Court of Appeal, the benefit of this Statute, 
 pas.sed since the trial, having been there claimed for 
 the defendant executor. But, as their testator was 
 
 (1) 2 Sunin. IV.\8, 'Mii; cited by Street, .!., in Goodcrltam v, 
 Moore, 31 O.K. 8G, 91. 
 (12) :]0 O. R. 110. 
 
 in law, 
 
120 
 
 THE STATUTE — ITS EFi'ECT. 
 
 m 
 
 Quasi 
 
 trustees. 
 
 himself a trustee for the phiintifts in respect to the 
 subject matter of the action, it may not be necessary 
 to determine this question, even should the 
 defendant's conduct be held to be " honest and 
 reasonable." Although the case turr.;; largely upon 
 the sufficiency, under R.S.O. (1897) cap. 120, sec. 
 38 (1), of the advertisement for creditors issued by 
 the defendants, as executors (2), their failure or 
 neglect to sufficiently comply with all the require- 
 ments of that provision, to entitle them to its abso- 
 lute protection, does not conclusively establish that 
 their conduct must be regarded as unreasonable 
 under the Act of 1891) (3). Of course, when liis 
 purely executorial functions have been discharged, 
 of the surplus the executor may, and, if it remains 
 in his hands, generally does, become trustee (4). 
 Thereafter he will be uncpiestionably v»uthin the 
 protection of the Act. 
 
 Persons, who are not actually trustees, but are 
 placed in that position b}^ Courts of Equity, and 
 made subject to the responsibilities of trustees, will, 
 no. doubt, be held to be within the purview of tiie 
 Ontario Statute ; and, in view of the language of 
 
 i» 
 
 1 k 
 
 (1) See Appendix A. 
 
 (2) Compare with, I)i re Kai/, Moslcy v. Kaif (1897) L' Ch. 
 518. Post p. 131. 
 
 (3) Ont. Imp. 1P96; N.B. 1898. See In re Stuart, Siiiifli v. 
 Stuart, ('^97) 2 CI.. 583; also In re Knij, ubi sup. 
 
 (4) Lewin, (10 ed.) 795. See also In re Grindeij, Cleu-s v. 
 Grindeij, (1898) 2 Ch. 593. 
 
 
THE STATlTE — ITS EFFECT. 
 
 IL>I 
 
 Liinlley, L.J., in /;/ re Ldnds AUutment Co. (1), will 
 
 probably be held to bo covered aUo by the Imperial 
 
 and Ne\v Brunswick Acts. 
 
 Every trustee, however appointed, conies within ^fo*\t' of 
 
 ^ ^ trustees 
 
 the Act; and it is immaterial when the breach of iipi'ointn.ciit 
 
 not material, 
 trust occurred, for the Act is expressly niade retro- statute retin- 
 
 spective (2), and is applicable to cases already '^l'^*^'^'^'^- 
 pendino- (3) wiien it became operative. 
 
 It lias been held that this Statute need not be I'leadinir. 
 specially pleaded as a defence (4), yet Sir F. H. 
 Jeune, President of the Probate Division of the 
 Enj:;lish Hi^^h Court, points out that it will be Vjetter 
 to plead it, so that parties may come prepared witii 
 evidence in answer (o), and ]\Ir. Justice Stirling- 
 intimates that wluni, upon sunnnary application or 
 otherwise, an order or judgment of reference for 
 enquiry is beino- made, the intention of the trustee 
 to seek relief under the Statute should be brou^jht to 
 the attention of the Court, " in order to insure the 
 proper evidence beinj)' before the Court " when the 
 lesult of such euipiiries is to be adjudicated 
 upon (G). 
 
 (1) (18C4) 1 Ch. 61(5, 631, sjpra p. 14. 
 
 (-2) Pariiis v. liellamii, (1890) 1 Ch. 800: S. C. (1898) 12 Ch. 
 ")27. Ill re lidherls, Kiiitjht v. Roberts, 76 L.T. 48:5. 
 
 (:j) /;, re Stuart, Smith v. Stuart, (1897) 2 Ch. 083. 
 
 (4) Sitifilehiirst y. Tapscott Slraiiisliip Co. {Ltd.) W.N. (1899) 
 
 i:;:;. 
 (.o) Idem. 
 (6) Til re Stuart, Smith v. Stuart, (1897) 'J Cli. ,')83. 
 
: 
 
 CHAPTER IV. 
 
 " Honestly." 
 
 (li>!houtf*ty, 
 
 Fraud 
 
 iibsoliitely 
 
 e.xehuJed. 
 
 'I'lie Statute is desii^iied for tlu' wWvi ol' tin- 
 hone.st and reasoiiabk' trustee. Lei^al honesty may 
 ditt'er Irom moral honesty in much the same way as 
 It'^al fraud (I) has been hehl to difi'er from n)oral 
 fraud. A trustee, without havino morally dishonest 
 purj)oses, or bein*; actuated by motives morally bad. 
 may have such an intention to depart from his sdiet 
 line of dutv — that is, his ley-al duty — as will sulHcr 
 to stamp his conduct as leu-ally repivliensible and 
 dishonest. 
 
 To brinu- himself within the Statute the truster 
 nuist have acte<l " honestly." All fraudulent bi-cachcs 
 of trust are, of course, completely excluded by this 
 iv(|uirement ; but, althouifli in all the cases tliat have 
 come before the Courts, the (|uestion raised has been 
 not as to the honestv. but as to the reasonaV)leness of 
 the trustee's conduct, and it seems to have been 
 almost taken for u-ranted (2) tliat " honestly " is used 
 as the eijuivalent of "not fraudulently," is this 
 really all that the word means as employed in the 
 Statute ^ Mr. Justice Kekewicli apparently thinks 
 
 (1) See ante. p. lU, note. 
 
 (2) In re Barker, liarcnsliaiv v. Barker, 77 L.T. at 714: //( n 
 Simrt, Smith v. Stuart, (1897) 2 Ch, oSIJ, iVJO; Wiiuue v. 
 Teiiipest, W.N. (1897) V.i: In re Turner, Barker v. Irhneij, (l.S97i 
 1 Cli. at 541; I'errlns v. Bellann/, (1899) 1 Ch. at pp. 800, 802. 
 
IIDNKSI'LV. 
 
 \2'i 
 
 not, t'oi" he Sii\ s, ill III !'<• Srroiid I'jdsl I in I ii'lr/t , ((c, " Iloiiistly" 
 
 iiiriiiis more 
 
 Hil(f. Site, Mill// v. I'l'di'i-f ( I ), " tilt' word ' lioncst ' is thun not 
 
 fi'.iiiilulf'iitly. 
 used in iiifuiy st'iisfs. A truster is lioiK'st it' iir lias 
 
 not (lone anytliiii^' dislioiicst. iJiit in anotlicr 
 
 si'iisc he is dislioiK'st. It sct'iiis to iiu' that a man 
 wlio acci'jits sucli a tnistt'csliij), (undrv n '!c(m1 I'or tlif 
 dissolution ol' a iSuildino- Society ) and docs notliino'. 
 swallows wholesale what is said hy Ids co-irustce, 
 ncN'cr asks I'or explanation, and accepts Minisy 
 explanations, is dishonest. He poses here hel'ore nie 
 as a [»()or man, the \ictiin of his c(j-trustee. He was 
 imposed on l)y Poaree, hut suttered himseir to he 
 iinposeil on "(2). And the learned Judoi' ordered 
 the trustee to [lav the costs of ail action in which he 
 had heeii ali'cady c(.ndeiiined to make ^ood the 
 defalcation of his co-trusltn'. 
 
 The Century and Siandard Dictionaries o'ive ?»l<;iiiiiiir of 
 li ' /' ii/i(i, " properly as a M* Hnition of " honestly :' 
 and Mr. Stroud in his .ludiciid Dictionary says: — 
 ■ The (Mpiixalelit of the phrase, /iintii Jii/r, is 
 honestly." If. as Lord .lustice Chitty .says (W) the 
 ac'comiiaiixiim' adxcrh. " reasonabh', must mean 
 reasonably as trustees," .so must " honestly mean 
 '■ honestly as trustees." As put by Lord Hhu k))urn, 
 
 llOIM'StlV.' 
 
 (1) 7!) L.T. 7'J(). 
 
 (2) But eonipai't' with tliis tlie two cases, ll'ninii v. Tciiijin^t, 
 W.N. (18i)7) 44, and hi rr Tiinur, (181)7) 1 Ch. r)36, where, 
 under similar eircumstaiiees, the trustees' conduct was, though 
 held to be unreasonable, not regarded as dishonest. 
 
 (:j) fii re (iriiiilni, Clars v. Gnmlcji, (1898) 2 Ch. ")!);{, (501. 
 
121 
 
 Can a w i 
 lireiicli (it 
 trust lie 
 Ji.»i, •,-.'. .' 
 
 I'll I 
 
 " HONESTLY. 
 
 ill the House of I^oi'ds, in ./mirx v. (un'<l<ni ( I ), 
 (Icciliii;^ with the word, " lionestly," used in tlio 
 Bjud<)-u])tc'y Acts: — " H" the fncts and circunistjinces 
 an' svu'li tliiit tlic Jury, of whoever hus to try the 
 (juestion, eanie to the eonchision that he was not 
 hoiiestlv hhuiderino- and careless, hiit that he must 
 ha\f had a sus])icion that there was soniethini^ 
 wroni;', and that he refrained tVoin asking' (piestions, 
 not l)ecause he "vas an honest hhniderei' or a stupid 
 man, l>ut hecaiise he thou<;lil in his own secret min<l 
 - I suspect there is some{hin<;- wrc^n^;', and it* I ask 
 (juestions and make further in(|uii'v, it will no 
 lonecr l)e my suspectine- it, hut my knowing' it, and 
 then 1 shall not he al)le to recover — I think that is 
 dishonesty." " Honestly," as the e(|uivalent of ' in 
 ^•ood faith," is also discussed in Tahnn. v. Ilaslar by 
 Ml-. .Justice Den man (2). 
 
 Now, can a trustee l)e said to act " honestly as a 
 trustee," who, knowintily, thoueh witlujut frautjulent 
 moti\(' or intent, (IJ) commits a breach of trust!* 
 And. of course, as pointed out by Lord Blackburn, 
 the conduct of th'' trustee who suspects he is doint^ 
 wrontj — that is, let>ally wront;' — and desio'uedly 
 refrains from (nKpiir}', is ecpially repreliensible. Tlie 
 word " honestly," as use<l in the Statute, will, upon 
 further consideration, it is believed, be found to 
 exclude from the operation of the Act many cases in 
 
 (1) 2 A.C. OK), (il2S). 
 
 (2) 23 Q.B.]). -M-), :{48. 
 
 (3) Ante p. 20. 
 
 t i:)-. 
 
" HONESTLY. " 
 
 which it is impossible to (K-tect actiml fruud or 
 tVaudulent intent. On the other hand, most of the 
 eases vvliieh, by this wider consti'uction, tlie word 
 " honestly " would oxehide, will, in all probability, be 
 cases in which it will also be held that tht^ trustees 
 have not acted reasonably— tliat is, reasonai)ly as 
 trustees. If this view of the Statute is correct, no 
 wilful breach of trust can be held to fall within it ; 
 and, accordintr to the view of Mv. Justice Kekewich, 
 the trustee, who has entirely ignored his trust, or 
 shew^n supine inditterence to its duties, must likewise 
 be deemed dishonest. Perrins v. Bella, ikij (1), 
 though at first blush it might .seem to indicate that 
 a conscious breach of trust may be honest within the 
 meaning of the Statute, does not so hold : for, as 
 pointed out by Lindley, M.R., the trustees, in that 
 case, had put themselves in a position from which 
 they could not recede, before they became aware that 
 they were acting in breach of trust. They then 
 " had to submit to the consecjuences of having 
 entered into invalid contracts " (2). 
 
 12; 
 
 (1) (1899^ 1 Ch. 797. 
 
 (2) H.C. at. p. 801. 
 
CHAlTKll V 
 
 " ReAS()\.\1!I,V." 
 
 1 1 
 
 (U'tiiiitioii 
 vi-t irivt'ii. 
 
 K;ich case 
 must (lejieiid 
 (III its own 
 cii'eum- 
 stanees. 
 
 Most (>r tilt' cases, in wliicli tlic Statute now Ix'inii' 
 discussed lias come bel'oi'e the Courts, have turned 
 uj)on the ert'ect of the woi'd " I'ea.sonably. " Vet, we 
 are still without any precise or accurate juflicial 
 detinition oi" tlie nieanine- and etiect ot" that term. 
 Indeed, in the tirst case ( 1 ) in which the eiiactmcnt 
 came u}) tor consideration, Mr. .Justice Byrne, dealini;- 
 with tlie contention that the trustee's conduct was 
 rea.sonahk', said : — 
 
 " It would l)e impossible to lay down any <;(.iieral 
 rules or principles to be acted on in carrying;- out the 
 provisions oi' the section, and I thiid< that each case 
 must depi'ud upon its own circumstances." 
 
 This view has been further endorsed (2) since it 
 was expressed, and in all the cases we find that the 
 -Judges refrain from attempting to define or limit the 
 circum.stances under which a trustee will, or will not. 
 l)e deemt'd to have acted reasonably. The cour.se of 
 conduct shewn to have been pursued in each indi- 
 vidual case is pronounced upon as it comes up. As 
 put by Lindley, jM.K., the (yourt nmst, in the exercise 
 of the judicial discretion <jiven it by the Act, .say or 
 decline to say in each case presented, " We are of 
 
 (1) In re Turner, liarkrr v. Triniey, (1897) 1 Ch. 5;i(5. 
 
 (2) In re Kay, per Romer, J., (1897) 12 Ch. at p- ">--l. 
 
" KKASONAIthV." 12" 
 
 • tpiiiioii it is not a east' in wliicli you oiiyht to be licM 
 
 li;il)I»' to niiikc ^()()(l the loss ' ( I ). No casi" will 
 
 iK'Cfssiirily Im' iUitlioi"ity in anotlwr wliicli is similar, 
 
 unless the parity is so (^rcat that tlicy may litcrall}' 
 
 Im' dt'scriht'd as " on all fours'" one with the other. 
 
 Vet we may, J)e liaps, venture to draw some Gcnoral mil 
 
 tl('(lneil)li- 
 ^•eneral deductions from the decided cases upon the from tla- 
 
 (piestion of what will he deeme<l such reasonabh; 
 conduct as to fairly entitle a trustee to excuse. It 
 will he foiuid that in no case, where the trustee lias 
 failed to evince that ordinary caic and pru<lence for 
 the possession an<l exercise of which the acceptance 
 I A' ottice renders him responsil)le, (2) has he been 
 relieved. Where a lo.ss has happened, not thi'()u<^h a 
 lack of such care or prudence, hut throueh an error 
 of .jud^nneiit, he nevei- would have been held person- 
 ally liable, C'V) and the Statute, therefore, has no 
 a])plication. On the other hand, where the breach 
 of trust consists in an inadvertent disregard by the 
 trustee of some technical rule, a mistaken a.ssinnption 
 of power, or an omission to discharo-e .some duty 
 uj)on the erroneous belief of a lack of power — that 
 i-^. whei'e the breach is really a failure to coujply 
 with some obli<(ation inciunbent upon him qi(<i 
 trustee, and the disre<j;ard of which, were h.e not a 
 trustee, would not subject him to rebuke for lack of 
 prudence or care, or for impropriety, — if there be 
 
 (1) I'cirius V. Jiellain!/, (1899) 1 Ch.ati). 800. 
 
 CJ) Learoyd v. Ulntclcy, 12 A,C. at p. 731, per Lord Ilalsbiny. 
 
 (:{) //* re Chapman, Cocks v. Chapman, (189G) 2 Ch. 703. 
 
12S 
 
 " REASON A Hl.Y. 
 
 ; t 
 
 Business 
 iiiiliriulence 
 not excused 
 
 cvidt'iK'c iqxni which the C'ourt can find that thci-c is 
 tail" i^round of cxcu.se for tlic mistake tliat has been 
 made, it will relie\'e the trustee from personal 
 liability for such a breach of trust, upon the ^^round 
 that he has acted reasonably. A careful ])erusal of 
 the cases, which it is now proposed briefly to re\iew. 
 indicates the forei^cjin*;- as the only <;eneral pi-inciplc 
 upon which the Act is to be administered, that can 
 be fairly drawn from the authorities yet available. 
 
 In the former class of case the unreasonableness 
 of his conduct — that is, his lack of ordinary care and 
 prudence- — was the very essence of the trustt'c's 
 ofience ; while, in the latter class, the fact that, 
 viewed throu<;h any other spectacles than those of 
 the Court of Chancery, his acts had been reasonable 
 and connnendable, formerlv availed him naui>ht as an 
 answer to the suit of his cc.^ttil qvc frui^t. Thus, 
 where the Court formerly permitted to the trustee 
 " a reasonable discretion," the Statute will be found 
 to have not materijilly affected his position. Hut 
 
 riirti-ustee" ^^''>^'^"^' t^*^' ^^'^'""^ ^^^''^ '^•^•^'^*" ^"""'^ t<^ exclude all 
 
 iiiiiy l)e considerations of prudence, all i<lea of discretion, and 
 
 excused. '■ 
 
 to act upon arbitrary rules, the t^reatest opportunity 
 is presented for the remedial operation of this "bene- 
 ficial enactment." That the Act is designed to relievo 
 trustees from liability for " technical breaches of 
 trust " would, therefore, appear to be a tolerably 
 accurate statement of its scope and purview. 
 
 Thus, no trustee, who has wholly neglected liis 
 trust, or been culpably indifierent in regard to it, 
 
 Brcacli of 
 
" REASON' A MI. V. 
 
 129 
 
 entirely, or even too iiiuch, rdyiii*^ upon the Over- 
 
 <'(nifi(leiu;e in 
 iiitct^rity, ability, and _,(i<lt,nn('nt of his co-trustiM', oi- co-trustt'o or 
 
 of an a*;ont(l), niH'd look lor rcliul under tliis 
 
 })rovision. This sort of " unreasonable " conduct has 
 
 Ix'f'n already several times inie(|ui vocally condemned. 
 
 In III rn Tamer, Barker v. Ivimnu (2), a testa- I" i« Turner, 
 
 Barker r. 
 trix had aj)pointed two trustees, Turner, a linen- Ivimey. 
 
 draper, and Ivimey, a solicitor. The trust moneys 
 
 were invested by Ivimey upon mort<;a<^e, which was 
 
 an improper investment both in its nature and its 
 
 \alue. The (.^ourt refused to excuse Turner, not 
 
 heinrj satisfied that he had acted with the same care 
 
 which he would probably have taken if the money 
 
 luid been iiis own. He had relied on his co-trustee, Co-tmstee. 
 
 the solicitor. There was no evidence ottered to 
 
 Justify Turner's cour.se except the fact that he was a 
 
 hnen-draper, and Ivimey a solicitor, and that the 
 
 latter evidently had the confidence of the testati'ix. 
 
 These facts the learned Judi^e re<(arded as (piite 
 
 insutiicient and held Turner liable, tliou^h entitled to 
 
 iiidenniity from Ivimey. 
 
 In Wiiiiae v. Teiniicst {'^), before Mr. Justice Wynne r. 
 
 Homer, it appeared that the defendant, a trustee, had 
 
 l^'rinitted his co-trustee, a solicitor, to receive the Co-tmstee. 
 
 proceeds of the sale of some trust property. The 
 
 solicitor, whose firm was actin*( for the trust, 
 
 dcpo.sited the moneys to the firm's credit, pendinjLj 
 
 (1) In re Stuart, Smith v. Stuart, (1897) 'J Ch. 583. 
 
 (2) (1897) 1 Ch. :vm. 
 
 (3) W.N. (1897) 43. 
 
;{() 
 
 " UEASONAhLV.' 
 
 Ill re Sfcoiid 
 Knst Diil- 
 wicli, Miiill 
 
 V. PflXl'Of. 
 
 Co-tl'ilstfC 
 
 Clark r. 
 Belliiniy 
 
 Agent. 
 
 the disposition ol' some (|U('sti()ns us to tlicii" distri- 
 l)U(ioii. I'lic solit'itoi- (lied luriicK' indcr. 'd to his 
 Uankcrs Oil liis ])ri\fit(' account, and tlicy sticeocdcMl 
 in lioldino- tlic firm account, includin<f these trust 
 moneys, to cover the amount due them. The defend- 
 ant was htsld liabh' to make i^ootl to the trust "state 
 the moneys so lost. 
 
 Ill re Hcroixl Edfif DulivicJt 7Jf'>th Starr lioirkHt 
 Ii(/;/. Soc, Midi! V. /Vf(/vr(l), ]\Ir. .Justice Kekewich 
 lu'ld one of two trustees luider a deed of dissolu- 
 tion of a huildini^ society, who confided everythin*; 
 to the hands of his co-trustee without en(iuiry, knew 
 nothing of the books, sit^ned wluitever docunients his 
 co-trustee put before him, and even swore to an 
 affidavit which he did not understand, liable for 
 moneys misappropriated by the co-trustee who had 
 eventually absconded. 
 
 The conduct of the defendants in tlie.se three 
 cases may certainly be said to be unreasonable, apart 
 iiltogether from the consideration of duti(?s peculiar 
 to them as trustees. 
 
 In Clarh v. Bellmny (2), where executor-trustees 
 had relied entirely upon their testator's solicitor, who 
 misappropriated a sum of $5,000.00, no reference 
 could have been made to this enactment, which, at 
 the date of the decision in that case (15th March, 
 1899), had not yet become law in Ontario. It will 
 
 (1) 79 L.T.72G. 
 
 (2) 30 O.K. 532. See Ante p. 27. 
 
" HKASONAMKV. 
 
 \:\\ 
 
 no (l<)ul)t Im- ui<;«>(l as a «;n)un<l ol' (Ict'cncc in the 
 (^ourt of Appt'al, where thi.s ease is awaiting argu- 
 ment. 
 
 Anolhei' ilhistration of the first iiart of the 1 "'•••«< "a. '; 
 
 ' Smith *•. 
 
 genei'al rule above stated is afloriled hy the judg- Stuart. 
 
 nient of Mr. .Justice StirHn^, in In re Shnii't, HtDifli 
 
 V. Staarf ( 1 ). He h( Id that a trustee who Ii^nt 
 
 trust moneys u})on advice, and uii(h'r circumstanceM 
 
 iXH to vahiations, such, that, in the o])inion of tlie 
 
 Court, he would not have advanced tiio moneys, had 
 
 they been liis own, without further en(|uirie.s, could 
 
 not be held to have acted reasonably. The trustee BusinesH 
 
 inipnuleiioe. 
 in this case placed too much contidence in " the long 
 
 trusted solicitor of his testator." On his advice he 
 lent trust moneys upon valuations made by sur- 
 \eyors not employed independently of the borrowers, 
 and stating merely the amount for which the 
 properties would be good security and not their 
 actual value. The loans made were beyond what the 
 surveyors had stated would be safe. The trustee was 
 held liable for the lo.ss sustained and not entitled to 
 relief under the Statute. His conduct was unreason- 
 able, regarding him as a business man merely. 
 
 In re Kay, Mosley v. Kay (2) afibrds a good in re Kay, 
 instance of the application of both portions of the Kay. 
 general rule. In so far as the conduct of the execu- 
 tor in that case was imprudent, from the point of 
 view of a business man, he was denied relief. But 
 
 (1) (1897) 2 Ch. 583. 
 
 (2) (1897) 2 Ch. 518. 
 
182 
 
 " REASON' A MLY. 
 
 BiiHiiiPHH ill HO far as liis coiwhict, tlioui^h rcaHOual)!*' as that of 
 
 iiiiju'mlt'iicc 
 
 not (xciiMtd; a huHiiicsH mail iiuTcly, was ncvcrthelcHH a hiH'acli of 
 
 technical , . , i • i i • t- • 
 
 l)reiu'h Ins (liity hh cxi'cutoi', tiK' evidence r)em<,f Hwtlicieiit to 
 
 satisfv the Court that he; had not intentionallv 
 off ('IK led, and had what Lindley, I\I.U. calls " rea.son- 
 ahle rea.sonH"(l) for his coiuhict, he was excused. 
 The testator, Kay, left an estati; of £22,()()() and, 
 apparently, only £100 of debts. He died in -Jiuie. 
 His will befjueathed an " innnediate le^jacy of £:J0() " 
 to his widow ; this the executor paid, and he also 
 allowed the widow to receive some of the income for 
 the support of herself and family. In Auf^ust a 
 claim for rents, received by the testator and not 
 accounted for, was sent in ; in November tin? custom- 
 ary advertisement for creditors was issued ; in 
 December an action, claiminijj an account of the 
 before mentioned rents upon a footin*; of wilful 
 default, was l)e(jjun. The executor, without ^oin^ to 
 the Court for directions, defended the action, and con- 
 tinued to allow the widow to receive moneys until 
 judo-ment in April, 189(5, which resulted in some 
 £2(5,000 being found due from tlie testator's estate 
 to the plaintifis. The matter now came up on 
 further consideration, upon a claim that the executor 
 be ordered to make good the moneys paid by him to 
 the widow, a liability from which he sought to be 
 relieved under the Statute. Mr. Justice Roiner held 
 that, though there had been undue delay in issuing the 
 
 (1) In re Roberts, 7G L.T. 483. 
 
" KKASONAHl.V." 1 8.S 
 
 julvci'tist'iiu'iit lor creditors, the rxccMitor luul iictt'il 
 reaHonuljly uii«l<'i' all tlic circuiMHtuiicrs in payin<^^ the 
 £.S00 l('<;acv iinil siu-li I'lirtlicr .suiiis on account of 
 inconu- as wcj'c necoHsar}' to maintain the widow and 
 family up to the issue of the writ, but not after, and 
 that to this extent lie mi<:"ht be relieved from per- 
 Honal liability. 
 
 The sums paid to the widow wvw not lar^e in 
 pj'opoition to the testator's available assets, as they 
 appeared. Some payments were })Ound to be made 
 at once. The plaintiti's' claim was a])parently not 
 <lelaye(l by the slowness of the defendant in adver- 
 tisint^, nor should the latter be refused the benefit of 
 the Act merely because he was somewhat slow. But 
 wdien served with a writ makin*;' a claim obviously 
 very serious and important, and winch mivht result 
 in a very lart^e sum beint( found due, it was the 
 executor's duty to try and ascertain the extent of the 
 claim. He did not do so. He must be held to have 
 acted at his own risk in continuing payments after 
 service of the wa-it. 
 
 The breach of trust, here relieved against, was of Tlie rule 
 the technical and arbitrary kind. As that of a 
 business man, apart from the duties incumbent upon 
 him qiut executor, his conduct down to the issue of 
 of the writ was highly reasonable. " It would be 
 monstrous to suppose that it is the duty of an 
 executor peremptorily to stop all supplies and allow 
 the family to go to the workhouse, when he has 
 every reason to believe that the testator has left 
 
I: 
 
 l?4 
 
 Technical 
 faults. 
 
 In re Roberts, 
 Knight r. 
 Roberts. 
 
 I 
 
 " REASONABLY." 
 
 ample means for their support" (I). After the 
 service of the writ, neither as a business man, nor 
 as a trustee, could he be said to ha^e acted prudently 
 or reasonably, and to that extent he was, accordingly 
 held disentitled to relief. 
 
 The following cases illustrate the second portion 
 of the general principle, or rule, upon which it would 
 seem that the Statute will be applied, viz : — where 
 there has been no " business imprudence or negli- 
 gence," which would render the trustee liable, but he 
 lias merely connnitted some technical fault, if it be 
 shewn that he acted inadvertently, and there is 
 evidence upon which the Court can find that his 
 transgression is not unreasonable, he will be excused. 
 
 In re Roberts, Knight v. Roberts (2). In this 
 case the Court of Appeal held that where an 
 executor, being bona Jide and on rea.sonable grounds 
 satisfied that he could not maintain an action ag-ainst 
 a debtor of his testator, took no proceedings to 
 recover his debt, such executor was, on the principle 
 of Claek v. Holland (8), not guilty of any default ; 
 but, if technically liable for a breach of trust, having 
 acted honestly and reasonably, the Court held that he 
 ought fairly to be excused. The deceased, a solicitor, 
 had made an arrangement with the debtor, his client, 
 that the latter should not be personally liable for his 
 costs of an administration action unless the solicitor 
 
 (1) (1897) 2 Ch. 521. 
 
 (2) 76 L.T. 479. 
 
 (3) 19 Beav. 262. 
 
 ■mi 1: 
 i 
 
 P9' 
 
UEASOXAHLY. 
 
 136 
 
 should fail to recover them in such {iction. The 
 facts of the case were complicated. The Court found 
 that the defendant's belief that the clain^ was uncol- 
 lectable was reasonable and well founded. 
 
 Lord Justice Lindley says : " It is not enough 
 for a trustee to say ' I believed so and so, and I 
 honestly beli. ved so and so, and I believed I could 
 not succeed, and I Iionestly believed I could not suc- 
 ceed ' (1). The Court must go further than that and 
 consider whether that honest belief is a reasonable 
 
 belief When the reasons are reasonable and 
 
 satisfactory for his belief, and he honestly entertains 
 
 that belief .... he is not liable " The judg- 
 
 nient in Vlack v. Hulland " oucjht to be a o'uide to 
 any Court which has to consider what ought to be 
 done under the Act of 189(). The Act of lSi)G 
 comes in in a case like this, and ought to be applied 
 to a ca ■'^ like this, where, even if there is, no doubt, 
 on the evidence, a technical liability for a breach of 
 trust, the Court is dealing with a thoroughly honest 
 trustee who has acted reasonably and honestly and to 
 the best of his ability, and who has conniiitted no 
 breach of trust, unless it is a very technical breach 
 of trust." 
 
 It is to be noted that in this case, apart 
 altogether from the Statute, the Court was of the 
 opinion that the executor had incurred no liability. 
 As a business man the executor could not reasonably 
 
 (1) Coi e with //( re Christ Church, Dartmouth, Russell's 
 (N.S.) Eq. I). 4(55. Infra p. UG. 
 
 CoiuIiU't 
 
 ri'iisoiiiible, 
 no liiil>ility 
 apart from 
 the Statute. 
 
 Hut if there 
 had been a 
 technical 
 breach the 
 Statute 
 would cover 
 it. 
 
im 
 
 REASONAHLY 
 
 III re 
 Grindey, 
 Clews r. 
 tJiindi'V. 
 
 Perrins r 
 Be".aniv. 
 
 be uxpuctt'd to spend money in a vain endeavour to 
 collect wliat lie, on sufficient grounds, tiiou<jlit to be 
 an uncollectable debt. As an executor he had a 
 discretion in such a matter within which he was 
 held to have acted wisely. But, had he made a 
 mistake, there was abundant evidence to satisfy the 
 Court that it was an inadvertent blunder, and one 
 which, haviuij sound and satisfactorv reasons to 
 excuse it, could not be held to Ije unreasonable. It 
 was therefore, a fittin<i' case for the,' application of 
 the statutory remedy. 
 
 In re Grindey, Cleiv.s v. Grhidei/ (1), was a case 
 in which cixecutors, acting upon their own idea of 
 the construction of a clause in their testator's will, 
 directing them " to maintain the estate in the like 
 mode of investment as at his death," and believing 
 the debtor to be a man of good credit, did not call in 
 a debt of £1GG. The Court held this conduct of the 
 executors reasonable. Without saying that the 
 construction they had put upon the will was correct, 
 Lindley, MR. held it not to be unreasonable. The 
 breach, if any, was technical, and, under the Statute, 
 was deemed excusable. 
 
 In the last reported case upon the Statute, 
 Perrins v. Bellamy (2), we find the Court of Appeal, 
 affirming Mr. Justice Kekewich, holding that, in a 
 case where trustees, acting upon the advice of their 
 solicitors as to their powers, sold certain leaseholds, 
 
 (1) (1898) 2 Ch. 593. 
 
 (2) (1899) 1 Ch. 797. (1898) 2 Cli. 521. 
 
" KEASOXAHF^V." 137 
 
 wliic'li it WiiH clear they luul not tlie power to sell, ^n\e by 
 
 trustees 
 the}' must be relieved from personal liability for without 
 
 such a technical breach of trust. In this case the 
 
 sale, from a business point of view, was, says 
 
 Lindley, i\I.R., "a most judicious breach of trust 
 
 .... and there is not one trustee in a thousand, or 
 
 one business man in a thou.sand, who would not havi; 
 
 done likewise" (1 ). This case shews that where the 
 
 breach of trust has been technical, and there is 
 
 evidence of reasonable precautions having been 
 
 taken, (here then; was the advice of solicitors upon 
 
 deeds confusin«]f enough to a layman) the Court will 
 
 relieve. 
 
 But, that such relief will not be gi-anted, thoucjh Court cjin 
 
 only iu't 
 the breach be purely technical, and, viewed as a upo'u 
 
 , . . 1 1 • 1 1 evidence, 
 
 busniess transaction, not unreasonable, m tlie absence 
 
 of evidence shewing the trustee's mistake to have 
 
 been such as ought to be excused, is well illustrated 
 
 by Iv re Barker, Bdvens/iaiv v. Jiarkcr (2). An 
 
 executrix and life-tenant, acting on the advice of a 
 
 commission agent, a friend and adviser of her 
 
 husband, the testator, retained for fourteen years 
 
 some shares, a large portion of which were onl}' 
 
 partly paid up. She was sued by the beneficiaries 
 
 for an account. It being found b}' the chief clerk 
 
 that, upon these speculative investments, she ha<l, 
 
 upon some of them, lost £l,5.'i(), and upon others, 
 
 gained enough to make the net loss to the estate, 
 
 (1) (1899) 1 Ch. p. KOI. 
 (12) 77 L.T. 712. 
 
1 as 
 
 " REAS(J\AHLY." 
 
 
 Techiii.-iil 
 hrciifli not 
 t'xciist'd. 
 
 i^usiiicss 
 iiiipnidt'iKH' 
 treated as 
 forinerlv. 
 
 upon ill! the nniiuthorized invostnioiits wliicli she 
 liful retained, onlv VMi), Mr. Justice Nortli held her 
 lial)le to recoup to the estate the entire £1,58(), 
 and not entitled to relief under the Statute, the 
 postponement of the sale not having' been proven 
 to be rea.sonable. This case exemplifies Lord Justice 
 Cyhitty's view that the trustee must act " reasonably 
 as a trustee," to brino; himself within the Statute. 
 The breach of trust, thoui]fh technical, in th(^ sense 
 that, as a business transaction, it mi<^ht not have 
 been alto^^ether imprudent, was very <(larino-, and 
 the evidence failed to shew any ^rround upon which 
 the Court could hold the trustee to have acted 
 reasonably, ov upon which she ou^-ht fairly to be 
 excused. 
 
 That the Court will, under the Statute, deem 
 conduct reasonable or unreasonable upon iiuich the 
 same ^'rounds as previously, (that is in cases where 
 its hands were not formerly tied by the presenc 
 of some transm-ession bv the trustee, of a technical 
 rule of duty, peculiarly applicable to him as such) 
 is well illustrated })y the view taken of the propriety 
 or necessity of trustees securing professional a<lvice. 
 Thus, prior to the Act, in matters upon which as 
 business men, tliey uiioht be deemed to be fairly 
 well informed, trustees were not liable for mistakes 
 of iudo-ment, even thouiih thev had not taken the 
 advice of experts (1). But, where the (luestions 
 
 (1) In re Clidpnian, Cocks v. Chapman, (189G) 2 Cli. 7()o; 
 Lcarnyd v. Whlhlvy, VI A.C. 7:}2-4. 
 
" HEASOXAMLV. 
 
 |:!!t 
 
 {irisin*;" involved luattci'H upon wliieli no ])iu<lfnt 
 l)iisiness man would act without sccUini:' skillt'(l 
 aHHintanci', it was always considered ne(;li<i'enet' and 
 breacli of duty on the part of a trustee, if, havin;;' 
 acted without such advice, he made a mistake ( I ). 
 Thouf^^h formerly, should such advice, if takt'U, have 
 proved erroneous, the trustee who acted upon it 
 would not liave been protected (2), it nuiy !)»■ that 
 he would now be saved from personal lial)ility, as 
 havinii' taken every reason{i])le ])recaution. That 
 tlie same principles will still prevail is shewn b\' 
 I ii I'f (friudci/ C'l), where, there bein<;' what he miyOit 
 easily regard as a plain direction, in what he un'ght 
 also well consi'k'r a simplt; matter, an fxccutor 
 was held not to l)e bound to obtain professional 
 opinions; while, in In. tr Bdrkcr {4^), t\u' failuri' to 
 take professional advice was severely connuented on, 
 and, in /// /r StiKirt (o) the action of the trustee, 
 l)ased upon advice given by an improper person, 
 was condenuKMl 
 
 In this latter case it is intimated that, wlu-rc a A ciitt''. uu 
 
 of unreason - 
 Statute points out a certain course which may be ahient'ss. 
 
 followed by a trustee with absolute safety (ti), its 
 
 (1) Pen-ins V. lieUatuji, (1898) 2 Ch. p. 5:}0. 
 
 (2) liimltou w Heard, ;j De Ci.M. & (J. (i08, 
 
 (3) (1898) 2 Ch. r)9:{. 
 
 (4) 77 L.T. 712, 714. 
 
 (;')) (1897) 2 Ch. 583. 
 
 (()) Though an executor or adniinistriitor may, in Ontario and 
 Manitoba, protect himself persomilly, and his trust estate, 
 against creditor's claims, V)y complying with the provisions of 
 
«! 
 
 140 
 
 REASOXAHLV. 
 
 The interest 
 of the trust 
 as a whole. 
 
 re(|uii'ementH, pi'ima facie, constitute a Htandanl, by 
 which the reasoiiableneHs of the trustee's coiKhict in 
 such matters is to be jud^jed, thou^-h non-compliance 
 ■\vitli Hucli re(|uirements is not, per se, and without 
 more, a fatal obstacle to an application for relief 
 under the Imperial Statute of 18()G (1). 
 
 Mr. Justice Romer, in In re Kay (2), takes a 
 similar view with regard to some of the provisions 
 made for the protection of t'xecutors. 
 
 The course that is best, in the interest of the 
 trust as a Avhole — for cestwis que tvustent in rever- 
 sion, as well as for those in possession — and, certainly, 
 the course best calculated to preserve the corpus of 
 the estate, thoutjjh at the immediate expense of the 
 income, will always be deemed reasonable (*J). 
 
 "The orit of the section," says Mr. Justice 
 Kekewich, " is in the words, 'reasonably and ought 
 fairly to be excused ' " (4), and the cases would seem 
 to indicate that he is not mistaken. 
 
 R.S.O. (1897) cap. 129, sec. ;{5 (see Appendix A., (ioodevham v. 
 Moore, ;U O.Ii. 86), it is not probable thfit his failure to avail 
 himself of this beneficial provision will be deemed even prima 
 facie evidence of negligence in any action brought by the 
 beneficiaries against him. 
 
 (1) (52 Vict. (Ont.) cap. io, sec 3; Gl Vict. (N.B.) cap. 26. 
 
 (2) (1897) 2 Ch. 518. 
 
 (3) Pcrrius v. JMInmy, (1899) 1 Ch. 797, 801; (1898) 2 Ch. 
 pp. 530-2. But see Viekerij \. Evans, 33 Beav. 376. 
 
 (4) S.C. (1898) 2 Ch. at p. 528. 
 
CHAPTER VI. 
 Miscellaneous — Conclusion. 
 
 The words "and ought fairly to be excused for "Ouf^lit 
 
 the breacli of trust and for oniittini.' to obtain the '""'''y tf /;» 
 
 " excused. 
 
 directions of the Court," have been connnented upon 
 in only one case. 
 
 " How nmch the words ' oujrht fairly to l)e 
 excused; " says Mr. Justice Kekewich (1), " add to the 
 force of the word ' reasonably,' I am not at present 
 prepared to say. I suppose, however, that in the 
 view of the Legislature there might be cases in 
 which a trustee, though he had acted reasonably, 
 ought not fairly to be excused for the breach of 
 trust." An objection by a cestui que fru.st to the 
 course taken, notified to the trustee in advance, is 
 suggest* d as a possible ground upon which to give 
 effect to these words. " In the section the copulative 
 ' and ' is used, and it may wijll be argued that in 
 order to bring a case within the section it must be 
 sliewn not merely that the trustee has acted 
 ' reasonably,' but also that he ' ought fairly to be 
 excused ' for the breach of trust. I venture, how- 
 ever, to think that, in general and in the absence of 
 special circumstances, a trustee who has acted 
 'reasonably ' ought to be relieved, and that it is not 
 incumbent on the Court to consider whether he 
 
 (1) Pcrruis V. Bellamy, (1898) ? Ch. at p. 528. 
 
14: 
 
 M rSCELLA XE( )rs — C( )NCLUSION. 
 
 ■W 
 
 Directions of 
 the Court. 
 
 oii^lit fairly to he excused, iinloss tluii'e is evidence of 
 a special character showing that the provisions of the 
 section oui^fht not to be applied in his favor." 
 
 Thv'st words have not yet })een <liscussed in any 
 other case, and it is rather ditiicult to suggest circum- 
 stances under which the trustee must be held to have 
 acted " honestly and reasonably," and yet " ouglit 
 (not) fairly to be excused." Judicial ingenuity may, 
 liowever, yet find some proper application for these 
 words. 
 
 The dili'erence between the practice at present 
 and that formerly in vogue as to applications to the 
 Court for directions has been already adverted to (1). 
 Mr. Justice Kekewich thinks the word.s — "for omitting 
 to obtain the directions of the Court in the matter in 
 which lie committed such breach of trust" — difficult 
 Kekewich, J. to foUow (2). " I do not See how the trustee can be 
 excused for breach of trust without also being 
 excused for the omission referred to, or how he can 
 be excused for the omission witiiout also being 
 excused for the breach of trust. If I am at liberty 
 to guess, I should suppose that these words were 
 added by way of amendment and crept into the 
 Statute without due regard being liad to the meaning 
 of the context. The fact that a trustee has omitted 
 to obtain the directions of the Court has never been 
 held to be a ground for holding him personally 
 
 (1) Ante p. 113; R.S.O. (1897) cap. 129, sec. 39 (see Appendix 
 A.) ; Con. Rule (Ont.) 938; 53 Vict. (N.B.) cap. 4, sec. 212. 
 
 (2) rerrins v. Bellamy, (1898) 2 Ch. pp. 528, 529. 
 
MISCELLANEOUS — ^CUNX'LI'SIOX. 
 
 14:i 
 
 J table, thougli it may be a reaHon j^uidiii;;- the Court 
 ill the matter of costs, or in deeifliiio- whetlicr he has 
 acti'd ri'asoiial)ly or otherwise, and especially .so in 
 these days when (juestions of difficulty, I'ven as 
 reo'ards the leiial estate, can be (h.'cided economically 
 and expeditiously on oriuinatinti" summons. But, it' 
 the Court comes to the conclusion that a trustee has 
 acted reasonably, I cannot see how it can usefully 
 proceed to consider, as an independent matter, the 
 (piestion whethei he has or has not omitted to obtain 
 the directions of the Court." 
 
 The learned Master of the Rolls . 1) thinks these Iiiiull(y,.M K 
 words were put into the section in order to give 
 trustees an answer to the argument which is sure to 
 Ije urged. " Oh, you ought to have applied to the 
 Court." Ju.st how their j^resence in the section helps 
 trustees His Lordship does not indicate. 
 
 Rigby, L.J. says that the Statute indicates that Kigi>y, L.-'. 
 
 tiie omission to obtain the directions of the Court is 
 
 one of the things against which trustees are to be 
 
 })rotected. In In re Grindey (2), Lindley, M.R. and 
 
 Cliitty, L.J. intimate that the .smallness of the Small sum 
 
 involved, 
 amount involved — there £166 — affords an answer 
 
 to the contention that the trustee should have 
 
 sought the directions of the Court. 
 
 In III re Williams (3), the Court of Appeal for 
 
 (1) Pen-ins v. BeUamy, (1899) 1 Ch. at p. 800, S.C. p. 802. 
 
 (2) (1898) 2 Ch. 593. 
 
 (3) 22 A.R. 196; see also InreFoxweU's Estate, 1 N.B. En. 195, 
 where the Supreme Court of New Brunswick refused to enter- 
 tain an application under 53 Vict. (N B.) cap. 4, sec. 212, to 
 tletermine which of two claimants were entitled to a fund. 
 
144 
 
 MISCELLANEOUS — CONCH'SION. 
 
 Liti^iitidii 
 iiicvitiildc 
 
 When 
 omission 
 ex('Usal>lo 
 and 
 when not. 
 
 Ontario lidd that it vvas not incunibont u])on a 
 trustee to seek the advice of th(i (^ourt, where it was 
 plain that the matter in ((Uestion could not be dis- 
 posed of without litij^ation. Nnno tenetar ad 
 inufiliii (1). 
 
 On the other hand, in In re liiirkcr (2), Mr. 
 Justice North, indicatinij what it would have been 
 reasonable for a trustee to do, says : " He mij^ht have 
 consulted a solicitor who niij^ht have advised that 
 the opinion of the Court should be taken." He 
 evidently thou<ijht this a precaution which cannot 
 always be safely neglected. 
 
 A similar observation is made by Romer, J., in In 
 re Kay (3). 
 
 In this matter, therefore, the trustee's conduct 
 must be considered in nnich the same way apparently 
 as in reo-ard to obtainincr professional opinions, or 
 skilled assistance. If the circumstances be such that 
 an ordinarily prudent man would not have failed to 
 avail himself of such a safeo-uard, the trustee's 
 conduct will probably be deemed unreasonable, in 
 cases in which his breach of trust has resulted in a 
 loss to the estate, if he has omitted to take this 
 precaution. 
 
 " The Court may relieve the trustee wholly or 
 partly from personal liability." Althou^jh these 
 
 (1) Tiuiloy V. Magratli, 10 O.R. G69; Clack v. Holland, 19- 
 Beav. 2C2. 
 
 (2) 77 L.T. 712, 714. 
 
 (3) (1897) 2 Ch. 518, 524. 
 
MIscKM.W'Eors — roNciJsioN', 
 
 14.") 
 
 •■ Wholly or 
 liiii'tly." 
 
 ('OiK'ludin^- words ol" the Statute iii'c rnunrd as Tln' statute 
 
 is riumtlatory 
 cimbliMi;' iiicrch-, and not inaiidatofv, " niav " no 
 
 doubt means " sliall," as it is axiomatic that where 
 Statutes authorize acts Tor the henetit of others, th<' 
 exercise of the power conl'erred is not discre- 
 tionary ( 1 ). Lindh'y, M.H. recoeiii/es this whi-n 
 lie sayH: — "Bein*; enabled, we oue-ht to say, that the 
 trustees ai'e entitiecl to this protection ' (2) : as does 
 likewise Uie-hy, L..I., when he says: — " If, then, we 
 come to the cojiclusion that tiny are within the Act, 
 I think we ai'e bound in the exercise of the discre- 
 tion vested in us to eive then\ the relief which the 
 Act proN'ides " (.S). For the same reason it is only in 
 a proper case that the relief accorded to the trustee 
 may l)e restricted under the words " wholly or 
 partly." The (.ourt cannot act arbitraril}-. An 
 instance, in which these words found their application 
 very readily, was In re Kay, Mosletj v. Kay (4), 
 where the executor was relieved partly only, tliat is, 
 so far as the Court found his conduct to have been 
 reasonable. 
 
 Of course it is only the personal liability of the IV'isonaf 
 trustee that is ati'ected by the Statute. All remedies affectt-d. 
 of the cestui que trust at^ainst the trust estate, 
 whether in the hands of the trustee or of strani^vrs, 
 are left intact and undiminished. 
 
 (1) lilackweWs Ca,sc, 1 Vern. 152; Mncdouyal \. PaUcrson, 11 
 C.B. 755; Bustross v. friiite, 1 Q.B.D. 423; Shaw v. Keckitt, 
 (1893) 1 Q.B. 779. 
 
 (2) Pcrrins v. Bcllami/, (1899) 1 Ch. at p. 801. 
 
 (3) S. C. at p. 803. 
 
 (4) (1897) 2 Ch. 518, Ante p. 131. 
 
I Mi 
 
 MISCELLANEOUH — CONCf.USION. 
 
 Novii Scotia 
 law. 
 
 Nova Sc'otiit hiiH not yet luloptcd this Statutoiy 
 provision. It' tiUHtccN in that Province could always 
 be assurcMJ of the iiuhil^cnt treatment acconh'd by 
 the Court, in In re Ckrld ('hitrch, Parhnouth (1), 
 the n«'(Ml for a siniihir Act in Nova Scotia, w(ju1(1 not 
 seem to be very trroat. In that case trustees were 
 sou<;lit to be made personally liable for a sum of 
 about lif 1,150, inv(\sted by them upon niortfjacfe, upon 
 the ground that they had advanced an excessive 
 amount, and upon a second mortgage, on property in 
 which the mortgagor had only a two thii'ds interest, 
 subject to a first mortgago of !ii> 1,200 ujjon the entire 
 property, which was valued at $5,000. The trustees 
 had the advice of a solicitor as to title and value. 
 They were held to be not liable personally to make 
 good the loss sustained by the trust estate, on the 
 ground that, although the security was not first-class 
 the trustees believed it to be safe when investing, 
 and that there was not " wilful default " within R.S. 
 N.S. (1884) cap. 114, sec. 24, corresponding to R.S.O. 
 (1897) cap. 129, sec. 3 (2). It is interesting to 
 compare the judgment in this case with the 
 language of Lindley, L.J., in In re Roberts, Knight 
 V. Roberts (3). No English precedent is cited by 
 the learned Nova Scotia Judgre. 
 
 It is to be regretted that a Statute of this 
 character should not, where it is apparently so easj' 
 
 (1) Russell's (N.S.) Eq. D. 465. But see Perleij v. Snow, Kusi^. 
 Eq. D. 373 ; Vernon v. Seaman, Russ. Eq. D. 190. 
 
 (2) See Appendix A. 
 
 (3) 76 L.T. 483. 
 
MISCELLANEorS — CONCLUSION. 
 
 U7 
 
 n tiling to do, Ix' adoptcfl in the colonics, it' at all, in 
 tlu! sanic terms in wliidi it has hccn passed in 
 England. The (U'paiturcs made in the present 
 instance may not he very serious, but they are sutH- 
 cient to raise questions as to the applicability of 
 some valual)le Eniilish authorities to cases arisin*: in 
 ( )ntario and N«'W Brunswick. 
 
 Thou^^h they have expressed themselves as bein*; 
 .stron<(ly desirous " not to narrow the effect of tlie 
 Act," the Judijes have found that tlie field of its 
 opisration cannot well be extended beyond cases in 
 which the breach of trust has been of a " technical " 
 cliaracter. 
 
:lj!: 
 
APPENDIX A. 
 
 STATUTES OF 
 
 ONTARIO, NOVA SCOTIA, NEW BRUNSWICK, BRITISH 
 
 COLUMBIA AND MANITOBA. 
 
 I. Tiustce Limitation Provisions: 
 
 (") Ontario ^ -q 
 
 {/>) Xova Scotia 15]^ 
 
 Jr. Kxprcss Trusts 1^9 
 
 • . . . . I O ^ 
 
 III. Technical Breaclies of Trust- -Relief 158 
 
 IV. The Trustee Act I54 
 
 The Trustee Investment Act 1 59 
 
 V. Linn'tation of Actions: 
 
 ('0 Personal Actions ](j3 
 
 (h) Specialties Kjjj 
 
 {(■) Real Property I73 
 
 N.B.— IVir- Oufiirio statutory provisions, <ind 
 those of the other Provinces, which are of immediate 
 imi.^rtance, are cjiven in fuU. Correspondivg 
 statutory provisions of other Provinces are referred 
 torn italics under each section of The Ontario Acts, 
 or will J>e f)u ixl at the end of eacli chapter. 
 
150 
 
 API'ENDIX A. 
 
 LIMITATIONS OF ACTIONS AGAINST 
 TRUSTEES. 
 
 ((0 ONTARIO. 
 
 Revised Statute (1897), Chapter 12!). 
 
 B 
 
 Interpreta- 
 tion iis to 
 ne.xt five 
 sections. 
 
 "Trustee." 
 Imp. Act 
 51 -52 v., 
 e. 59, see 
 E.xtend 
 to Joint 
 trustees. 
 
 Apply to all 
 trusts. 
 
 1. 
 
 Proviso. 
 
 Section 27. 
 
 (1) For the purpoHcs of the next five section.s of 
 tliis Act the expre.s.sioii " Tru.stoe " shall be deemed 
 to include an executor or administrator and a trustee 
 whose trust arises by construction or implication of 
 law as well as an express trustee. 
 
 (2) The provisions of the said five sections 
 relatin<)j to a trustee shall apply as well to several 
 joint trustees as to a sole trustee. 
 
 Application 
 of Statutes 
 of Limita- 
 tions to cer- 
 tain actions 
 ajijainst 
 trustees. 
 Imp. Act 
 51-52 v., 
 c. 59, sec. S. 
 
 (4) The .said five sections shall apply as well to 
 trusts created by an instrument executed before as 
 to trusts created on or after the 4th day of May, 
 1891 and the powers by the said sections conferred 
 are in addition to the powers conferred by the instru- 
 ment, if any, creatino- the trust; Provided always 
 that save as in the said sections expressly provided, 
 nothing therein contained shall authorize any trustee 
 to do anythintr which he is in express terms forliidden 
 to do, or to omit to do anythino- which he is in 
 express terms directed to do by the instrinnent 
 creatinii" the trust. 
 
 Section 32. 
 
 (1) In any action or other proceedin^ij a^jainst a 
 trustee, or any person claiminj^ through him, except 
 where the claim is founded lipon any fraud or 
 fraudulent breac.i tvf trust to whicii the trustee was 
 [)orty or privy, or is to recover trust propei-ty, or the 
 proceeds thereof, still retained by the trustee, or 
 
APPENDIX A. 
 
 151 
 
 previoufsl3'^ received by the tni.stee and converted to 
 liis use, the followintr provisions shall apply : 
 
 (^0 All riijhts and privileijjes conferred by any 
 Statute of Limitations shall be enjoytKi in the like 
 manner and to the like extent as they would hfive 
 been enjoyed in such action or other proce(!diti<i^ if 
 the trustee or person clainiint;' throu<^h him had not 
 been a trustee or person claiminjjj thi"ou;^h a trustee. 
 
 {!)) If the action or other proceedin<^ is l)rou<^ht 
 to recover money or other property, and is one to 
 whicli no existiniij Statute of Limitations applies, the 
 trustee or person claimin*;- throu^^h him shall bo 
 entitled to the benefit of, and be at liberty to plead, 
 the lapse of time as a l)ar to such action or other 
 proceedin<ij in tlu^ like manner and to the like extent 
 as if the claim had been atiainst him in an action of 
 de})t for money had and received ; Vnit so neverthe- 
 less that the Statute shall run a«jainst a married 
 woman entitled in possession for her separate use, 
 whether with or without restraint upon anticipation, 
 but shall not be^in to run ai^ainst any beneficiary 
 unless and until the interest of sucli beneficiary 
 becomes an interest in possession. 
 
 (2) No beneficiary, as ai2;ainst whom there would 
 be a <;rood defence by virtue of this section, shall 
 derive any greater or other benefit from a jud<jjment 
 or order obtained by another beneficiary than he 
 could have obtained if he had brou^lit the action or 
 other procecdinir, and this section had been pleaded. 
 
 (3) This section shall apply only to actions or 
 otlier proceeding's connnenced after the first day of 
 January, 1892, and shall not deprive any executor 
 o)' administrator of any riyht or defenct^ to which he 
 is entitled under anv existinii' Statute of Limitations. 
 
 (h) NOVA SCOTIA. 
 
 51 VicTORiAE, Chaiter 11, Seotion 3. — The 
 word " trust " does not mean the duties incident to an 
 estate conveyed by way of mort(:;a<j^e ; but, with this 
 
152 
 
 AIM'EXDIX A. 
 
 exception, tlir wonls "trust" and " tnistoo " extend 
 to and include implied and constructive trusts, and 
 extt'ud to and include cases where the trustee has 
 some beneficial interest in the subject of the trust, 
 and extend to and include the duties incident to the 
 otlico of pin'sonal representative of a deceased 
 person. 
 
 E.S.n.C. {1807), cap. JS7, sec. .7. 
 
 52 Victoriae, cap. 18, sec. 17, is the same as sec. 
 82, R.S.O. (1897), cap. 129; and sec. 22 corresponds 
 with ss. 4 of sec! 27, K.S.O. (1897), cap. 129.— This 
 Nova Scotia Statute is to be read with, and as if 
 part of, 51 Vict., cap. 1 1. 
 
 II. EXPRESS TRl^STS. 
 
 Former Law in Enolaxi*, Ontario and 
 Nov.v Scotia. 
 
 Ontario Revised Statute (1897), car 51, 
 SEC. 58. 
 
 The law to be administered in Ontario, as to the 
 
 matters next hereinafter mentioned, shall be as 
 
 follows : 
 
 36-37 v., (1) Subject to the provisions of sec. 32 of The 
 
 (Imp.) c. (>(>, Xrii.stee Act, no claim of a cestui que trust atrainst 
 
 ,.,._. j^.^ trustee for any property held on an express trust, 
 
 or in respect of any breach of such trust, shall be 
 
 lield to be barred by any Statute of Limitations. 
 
 NOVA SCOTIA— /i'..S..V..S\ {1SS4), cap. 101, sec. 1.1, ss. 1. 
 
 OTHER PROVINCES. 
 Similar provisions are made by : 
 
 BRITISH COLUMBIA— /^etim/ Slatutc {1S'J7), cap. 1S7, 
 SCO. .^.9. 
 
 MANITOBA— 55 <r 59 Victoriae, cap. 6, sec. .19, ss. t. 
 
 NEW BRUNSWICK has no corresponding statuloru pro- 
 vision. 
 
AI'i'EXDIX A. 
 
 III. TEC'HXICAL HRI'LVCHES OF TRUST. 
 ENCJLAX]). 
 
 Imperial Statitk, 5!) ^i: (iO Vktoiuae, cap. .S5, 
 
 See. 1, sH. 2. — Till.' lulministratiou of tlio pi-operty 
 of any deceased person, wliether a testator or intes- 
 tate, sluill l)e a trust, and the execntor or adminis- 
 trator a trustee, witliin the iiieaninp- of tliis Act. 
 
 5;} 
 
 Sec. 3. — If it appeal's to tlie (Vjurt tliat a trustee 
 whether appointed nn(h'r tliis Act or not, is or may 
 be personally liable f(jr any l)T'each of trust, whether 
 the transaction alleged to be a breach of trust 
 occurred before or after the passing of this Act, but 
 ]ias acted honestly and reasonably, and ouf^ht fairly 
 to be excused for the breach of trust and for 
 omittint)' to obtaijj the directions of the Court, in the 
 matter in which he conniiitted such breach, tlien the 
 Court may relieve the trustee wholly or partly, from 
 personal liabilit}' for the same. 
 
 NEW BRUNS\VICK. 
 
 New Brunswick Statute, 01 Victoriae, cap. 2(). 
 
 Where in any suit or proceedin*^' in the Supreme 
 Court in E([uity it appears to the Court that a 
 Trustee is or may be personally liable for any breach 
 of trust, whether the transaction alleoed to be a 
 breach of trust occurrisd before or after the passino- 
 of this Act, but has acted honestly and reasonably and 
 oun;ht fairly to be excused for the breach of trust, 
 and for omitting to obtain the directions of the Court 
 in the matter in which he conniiitted such breach, 
 then the Court may relieve the Trustee wholly or 
 partly from personal liability for the same. 
 
 ONTARIO. 
 
 Ontario Statute, 02 Victoriae, cap. 15. 
 
 Sec. 1. If in any proceedin^j ati'ecting trustees or 
 trust property it appears to the Court that a trustee, 
 
154 
 
 AI'l'ENDlX A. 
 
 Short title. 
 
 wliethcr jippointtMl by tlie Court, or by an iiistruiiuiiit 
 ill writiiio- or otberwise, or tbiit uiiy person who in 
 law may be lield to be tiihiciarily resp()nHil)le as a 
 trustee, is or may be ])ersonally liable for any breach 
 of trust, whether the transaction, alle;j;e(l or found to 
 be a breach of trust, occurred before or aft(;r the 
 passing- of this Act, but has acted honestly and 
 reasonably, and ou()'lit fairly to be excused for the 
 breach of trust, and for omittino- to obtain the 
 directions of the Court in the matter in which he 
 committed such breach, then the Court may relieve 
 the trustee wholly or partly from personal liability 
 for the same. 
 
 Tlicrc is no siniihtr provision in any other Prorinrc of Cunatia. 
 
 IV. THE TRUSTEE ACT. 
 Revised Statute of Ontario (1<S07), cap. 120. 
 
 Her Majesty, by and with the advice and consent 
 of the Legislative Assembly of the Province of 
 Ontario, enacts as follows: 
 
 1. This Act mav be cited as " The Trustee Act." 
 
 Every trust 
 iiu3trument 
 to be deemed 
 to contain 
 cliuisefor the 
 indemnity 
 and reim- 
 bursement of 
 the trustees. 
 Imp. Act 
 •J12-23 v., 
 c. 35, s. 31. 
 
 3. Every deed, will, or other document creating a 
 trust, either expressly or by implication, shall, 
 without prejudice to the clauses actually contained 
 therein, be deemed to contain a clause in the words 
 or to the effect following;, that is to say : — " That the 
 trustees or trustee, for the time being, of the said 
 deed will or other instrument, shall be respectively 
 chargeable only for such moneys, stocks, funds and 
 securities as they shall respectively actually receive, 
 notwithstanding their respectively signing any re- 
 ceipt for the sake of conformity, and shall be 
 answerable and accountable only for their own acts, 
 receipts, neglects or dcjfaults, and not for those of 
 each other, nor for any banker, broker, or other 
 person with whom any trust moneys or securiti'^s 
 
Ai'PExnix A. 155 
 
 may be deposited ; nor for the insutKcieiiey or 
 deficiency of any stocks, funds, or securities, nor for 
 any other loss, unless the same shall hap]>en throu^di 
 their own wilful default respectively ; and also that 
 it shall be lawful for the trustees or trustee for the 
 time beinn;, of the said deed, will or other instrument, 
 to reimburse themselves or himst'lf, or pay or dis- 
 chartjje out of tlie trust premises all expenses incurred 
 in or about the execution of the trusts or powers of 
 the said deed, will or other instrument." 
 5J Vict. X.S., cap. IS, sec. !). 
 
 11. In case any deceased person conunitted a Actions 
 
 wrono; to another in respect of his person, or of liis "gainst cx- 
 
 1 1 i , 1 1 ecutors Mini 
 
 real or personal property, tlie person so wron^^ed may administra- 
 
 nuiintain an action aijainst the xecutors or admini- torsfor torts. 
 
 strators of the person wlio conunitted the wronj;-. 
 
 The action shall be brou<;'ht at latest within one 
 
 year after the decease. This section shall not apply 
 
 to libel or slander. 
 
 In EngliDu} the 3 and 4 W. IV., cap. /J, sec. J, gives a 
 
 similar reincdy for wrouffs committed tritiiiu six mouths before the 
 
 testator's death, the action to he brought within six months after 
 
 the decease. This latter 2>'''>'''a"""' '•'>' "' force in Xova Scotia 
 
 (E.S.X.S. (1SS4), cap. 113, sec. 2); in British Columbia (ILS. 
 
 B.C. (US97), cap. 73, sec. 40); in Manitoba (U.S. Man. (ISrH), 
 
 cap. 14<>, sec. 4S); sec C.S.N.B. (1S77), cap. So, sec. 14 — a most 
 
 extraordinary provision. 
 
 For Section 27, see Ante p. 150. 
 
 28. (1) It shall be lawful for a trustee to Appolntmont 
 
 appoint a solicitor to be his aoent to receive and o-ive of w^xewu by 
 
 ^ S . , ,. " 111 trustees for 
 
 a discharge tor any money or any vahiable con- certain pur- 
 
 sideration of property receivable by such trustee poses. Imp. 
 
 under the trust ; and no trustee shall be eharijeable Aet;'l -•'»-' 
 
 with breach of trust bv reason onlv of his having ' ' ' ' • 
 
 made or concurred in making any such appointment ; 
 
 Provided that nothing herein contained shall exempt Proviso. 
 
 a trustee from any liability which he would have 
 
loO 
 
 AIM'EXDIX A. 
 
 iiicuiri'(l il' this section luul not Ix-cn ciiacttMl in case 
 of |it'iiiiittin_y sucli money, vnlniil)l(' consideration, or 
 property to remain in the hands or under the c(^ntro! 
 of tiie solicitt)!' f(^r a ])eriod Icjnj^cr than is i'easona])ly 
 necessary to enal)le the solicitor to pay or transfer 
 the same to the tl'Ustee, 
 
 (2) It sliall be lawfid for a trustee U) a])point a 
 l)aid<er or solicitor to he his a<rent to risceive and 
 if\vv a ilischaro-(; for ajiy money payal)Ie t(j such 
 trustee unch'i' or l)y vii'tuo of a policy of assin-ance 
 or otherwise : and no ti'ustee sliall be chai';;'eable 
 with a breach of trust by reason only of liis havino- 
 made or concurred in makin^; any sucli appointment: 
 Provided that nothing- jierein contained shall exempt 
 a trustee from any liabiliiy which he would have 
 incurred if this section had not been enacted, in case 
 he p rmits such money to remain in the hands or 
 under the control of the l)anker or solicitor for a 
 period lonii^er than is reasonably necessary to enable 
 him to pay the same to tlu; trustee. 
 
 (8) This section shall a})ply on!}' where the 
 money or valuable considei'ation or property was or 
 is received on or after the 4t]i day of May, 18!)1. 
 
 V)ene(ioi!irv 
 Iniji. Aot, 
 51-;')!.' \ .. 
 e 
 
 Triisti-es 30. ( 1 ) Where a trustee has connnitted a breach 
 
 br-i'-l'/or'" ^'■' ^^"^'^^ '^^ ^'^^ insti^axtion or re([U(!st or with the 
 trust at consent in writing- of a beneficiary, the Court may, if 
 
 instigation of it thinks tit, and notwitlistandino- that tlie beneficiary 
 is a niarried woman entitled for her separate use, 
 whether witli or without a restraint upon antici])a- 
 51t, see. 0. tion, make such order as to the Court seems just for 
 impounding" all or any part of the interest of tlie 
 beneficiary in tlie trust estate by way of indemnity 
 to the trustee or person claiming througli him. 
 
 (2) This section shall apply to breaches of trust 
 committed as well before as after the 4th day of 
 May, 1891, except where an action or other 
 proceeding was then pending with reference thereto. 
 
AIM'EXDIX A. I,') 7 
 
 For Se('TI()\ ii'2 sek Ante i-. 150. 
 
 33. (1) ft sliiill be liiwrul I'oi' any cxccntors to Powcih of 
 
 l)av any debts of claims ui)oii anv cvidciUM' tbat tbcv '"^•''' ''''!'''' '"" 
 ^ "^ ,. , „ . , ' ■ '^ to sett hilt,' 
 
 may think sutticicnt, and to accept any comp(jsition ddits owiiif,' 
 
 or any security, real oi- personal, for any debts due I'l'"" "' to 
 
 to the deceased, and to allow anytime lor p.-iyment 
 
 of any sucli del)ts as they may think fit, and also to 
 
 compromise, compound, oi- sul)mit to arbitration all 
 
 debts, accounts, claims and things whatsoeNer 
 
 rolatini*' to the estate of the deceased, and, for any of 
 
 tlie purposes afon^said, to enter into, _i;ive and 
 
 execute such ao-n^enuMits, instruments of cojiiposition, 
 
 releases and other tlnn<;-s, as they may think 
 
 expedient, without bein^- responsible for any loss 
 
 occasioned tliereby. 
 
 (2) None of the ])owers in this secii(jn confei'red 
 shall take etlect, or be exercisable, by virtue of this 
 Act, by any trustees or executors, if it is expressly 
 declared in the deed, will or otlu^r instrument 
 ereatino- such trustees or executors, that such trustee." 
 or executors shall not have such power. 
 
 (•'f) This section shall apply and extend to l)oth 
 present and future trustees and executors. 
 
 R.S.n.C. {JS97), rap. /.S7, sec. J4; U.S. Man. {ISHD, rap. 
 146, .-ICC. JS; 51 I'irl. A.S.. raj). 11, scr. G.S. 
 
 35. In case the executor or administrator t;ives ir claini is 
 
 notice in writinii- referrin<r to this section and of his ''t'.U;<^t(Hl and 
 
 intention to avail himself thereof to any creditor or .,„ aftion 
 
 other person of who.se claims aiiainst the estate he "nif^t be 
 
 X c^ 114- 
 
 has notice, or to the attorney or ao-ent of such ^l.^j^j^^/.j ,.,.,.. 
 creditor or other person, that he the executor or tain period. 
 administrator rejects or disputes the claim, it shall 
 be the duty of the claimant to conunence liis action 
 in r63spect of tlx^ claim within si.x months after the 
 notice is given, in case the debt or some part thereot' 
 is due at the time of the notice, or within six months 
 from the time the debt or some part thereof falls due 
 
15H 
 
 AI'I'ENDIX A. 
 
 ProviHO. 
 
 il' no part tlH'ifol' is duci at the tiiiic ol' the notice, 
 jiiid ill (Icl'ault the claim shall lu' forever hai'red ; 
 I'rovided always that in case the claimant shall be 
 nonsuited at tlut trial the claimant, or his exfcntors 
 or administrators, may commence a new action within 
 a further j)eriod ol' one month from the time of the 
 nonsuit. 
 
 U.S. Man. {1S01), mp. itr,, sec. :U. 
 
 Distribution 
 of assets 
 uiuler trust 
 (le»'ds for 
 ))('ii('(it of 
 <'ie(litors or 
 of t!ie assets 
 of a testator 
 or intestate 
 after notice 
 }i;iven by 
 trustei% 
 assignee or 
 executor or 
 administra- 
 tor. 
 
 Imp. Act, 
 22-t!;j v., ^ 
 c. 35, sec. 29. 
 
 38. Where a trustee or assio-iiee actini"' under the 
 trusts of a deed or assiijnment for the heiietit of 
 creditors generally, or a particular class or classes of 
 creditors, where the creditors are not desionated by 
 name therein, or an executor or an administrator has 
 iriven such or the like notices as in the opinion of the 
 Court in whicli such trustee, assi^^nee, executor, or 
 administrator, is sout^ht to be chari^ed, would have 
 been (fiven by the Hi«;h Court in an action for the 
 execution of the trusts of such deed or assitjnment, 
 or an administration suit (as the case may be), for 
 creditors and others to send in to such trustee, 
 assignee, executor or administrator, their claims 
 against the per.son for the beneiit of the creditors of 
 whom such deed or assi^^nment is made, or the estate 
 of the testator or intestate (as the case may be), 
 the trustee, assignee, executor or administrator shall, 
 at tlie expiration of the time named in the said 
 notices, or the last of the said notices, for sending in 
 such claims, be at liberty to distribute the proceeds 
 of the trust estate, or the assets of the testator or 
 intestate (as the case may be), or any part thereof 
 amongst the parties entitled thereto, having regard 
 to the claims of which the trustee, assignee, executor 
 or administrator has then notice, and shall not be 
 liable for the proceeds of the trust estate, or assets 
 (as the case may be), or any part thereof, so distri- 
 buted to any person of whose claim the trustee, 
 assignee, executor, or administrator, had not notice at 
 the time of the distribution thereof or a part thereof 
 (as the case may be) ; but nothing in this Act con- 
 
Al'l'ENDIX A. 151) 
 
 taincd shall prt-judicc tlic rit^lit of iinv rr('(litor or 
 clainuuit to follow the pi-cjcccds (jf th(; trn.st estate or 
 assets (as the case may he), or an}' part thereof, into 
 the hands of the person or persons who may have 
 received the same resp(!ctively. 
 
 R.S.Ii.C. {1897), cap. 1S7, sec, 20; U.S. Man. [IS'Jl), rap. 
 146, sec. ,U; 51 Vict. {X.S.), cap. If, scr. Co. 
 
 39. (1) An}' trustee, (ixecutor or administrator, Ti'tiste«'s, 
 
 sliall be at lil)ertv, without the institution of an "'^"'■; "'"-^ 
 
 action, to apply ni Court or ni Chambers m the man- advice in 
 
 ner prescribed by Rules of Court, for the opinion, niiinnKeiiicnt 
 
 advice, or direction of a Judj^e of the Hi<,di Court on p|.o,',"hv 
 
 any question respcictinfj the mana<,fement or adminis- iTup. Act, 
 
 tration of the trust proT)erty or the assets of a ---'•;<^^-. 
 
 c 'iy sec •!(' 
 testator or intestate. ' " 
 
 (2) The trustee, executor or a<hninistrator actint^' 
 upon the opinion, advice or direction fjiven by the 
 Judge, shall be deemed, so far as refjards liis own 
 responsibility, to have discharged his duty as such 
 trustee, executor or administrator, in the subject 
 matter of the said application ; but this provision 
 shall not extend to indenniify a trustee, executor or 
 Iministrator in respect of any act done in accord- 
 ance with such opinion, advice or direction as 
 aforesaid, if the trustee, executor or administrator 
 has been guilty of any fraud or wilful concealment 
 or misrepresentation in obtaining such opinion, 
 advice or direction, 
 
 R.S.Ii.C. {18U7), cap. 187, sec. 77; li.S. Man. {18!)1), cap. 
 146, sec. .13, ct scq.; 53 Vict. {N.B.), cap. 4, sec. 212; 51 Vict. 
 {N.S.), cap. 11, sec. 63. 
 
 THE TRUSTEE INVESTMENT ACT. 
 
 Revised Statute of Ontario (1897) Chapter 130. 
 
 Her Majesty, by and with the advice and consent 
 of the Legislative Assembly of the Province of 
 Ontario, enacts as follows :— 
 
 1. This Act may be cited as "The Trustee Short title. 
 Investment Act." 
 

 
 ^S^.. 
 
 
 ^> 
 
 ^^ 
 
 ^^.% 
 # 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 // 
 
 M 
 
 
 / 
 
 ^ 
 
 '^'^ 
 
 /- 
 
 
 / <.<■ 
 
 f/. 
 
 
 
 10 
 
 I.I 
 1.25 
 
 U Hi 
 
 I lis 12.0 
 
 1.8 
 
 1.4 11.6 
 
 % 
 
 
 Ta 
 
 /. 
 
 
 V' 
 
 
 1.^ 
 
 ^1^ 
 
100 
 
 APPENDIX A, 
 
 Trustees or 
 executors 
 may invest 
 trust moneys 
 in certain 
 secui'ities. 
 Imp. Act, 
 
 iiy-i.'4 v., 
 
 c. 14."), 
 sec. Llf). 
 
 This section 
 1 o apply to a II 
 trustees, etc. 
 
 Interpreta- 
 tion. 
 
 "Trustee." 
 
 Additional 
 
 powers 
 
 given. 
 
 2. (I) Trustees or executors having trust money 
 in their hands, which it is in tlieir duty, or which it 
 is in their discretion, to invest at interest, shall be at 
 liberty at their discretion, to invest the same in any 
 stock, debentures or securities of the Government ot" 
 the Dominion of Canada, or of this Province ; or in 
 securities which are a first charge on land held in fee 
 simple, provided that such investments are in other 
 respects reasonable and proper, and such trustees or 
 executors shall also be at liberty, at their discretion, 
 to call in any trust funds invested in any other 
 securities than aa aforesaid, and to invest the same 
 in any such stock, debentures or securities aforesaid, 
 and also, from time to time, at their discretion, to 
 vary any such investments as aforesaid, for others of 
 the same nature ; and any such moneys already 
 invested in any such stock, debentures or securities 
 as aforesaid, shall be held and taken to have been 
 lawfully and propi.'rly invested. 
 
 (2) This section shall apply and extend to both 
 present and f'lture trustees and executors. 
 
 U.S. B.C. {tS!)7), cap. 1S7, see. 11; U.S. Mcui. (ISOl), cuji. 
 146, sec. 22; 51 Vict. {N.S.), cap. 11, sees. 58 and 04; 55 Vict. 
 {N.S.), cap. 52: 56 Vict. {N.S.), cap. 8, sec. 2, .vs. 6; 62 Vict. 
 (.¥.«.), cap. 24. 
 
 3. (I) For the purposes of the following- sections 
 of this Act the expression " Trustee " shall be 
 deemed to include an executor or administrator and 
 a trustee whose trust arises by construction or 
 implication of law as well as an express trustee. 
 
 (2) The provisions of this Act relating to a 
 trustee shall apply as well to several joint trustees as 
 to a sole trustee. 
 
 (3) The expression " stock " shall include fully 
 paid up shares. 
 
 (4) The expression " instrument " shall include 
 an Act of the Legislature of Ontario. 
 
 4. The powers hereby conferred are in addition 
 to the powers conferred by the instrument, if any, 
 
APPENDIX A. IGl 
 
 creating the trust ; Provided that nothiiio' herein Proviso, 
 contained shall authorize any trustee to do anythin<^ 
 which lie is in express terms forbidden to do, or to 
 omit to do anything which he is in express ter/ns 
 directed to do, by the instrument creating the trust. 
 
 5. (1) It shall be lawful for a trustee, unless rnvestment 
 expressly forbidden by the instrument (if an\') ['f „ , 
 creating the trust, to invest any trust funds in his 
 hands in terminable debentures or debenture stock 
 of the hereinafter mentioned societies and companies, 
 provided that such investment is in other respects 
 reasonable and proper, and that the debentures are 
 registered, and are transfera))le only on the books of 
 the society or company in his name as the trustee 
 for the particular trust estate for which they are held 
 in such debentures or debenture stock as aforesaid:-- 
 
 (N.B. — The italicised word, "/«," was probably a misprint in 
 the originai Act for the word "of," but this section is cuinhronsli/ 
 worded at best.) 
 
 (a) Of an}^ ijicorporated society or company 
 which has been, or shall hereafter be authorized })y 
 any lawful authority to lend money upon mortgages 
 on real estate, or for that purpose and other purposes, 
 such society or company having a capitalized, tixefl, 
 paid up and permanent stock not liable to Ije 
 withdrawn therefrom amounting to at least i?500,000, 
 and having a reserve fund amounting to not less 
 than 25 per cent, of its paid up capital, and its stock 
 having a market value of not less than 25 per cent, 
 premium, and the society or company having during 
 each of the ten years next preceding the date of 
 investment, paid a dividend of not less than six per 
 cent, on its ordinary stock ; 
 
 (6) Or of any society or company heretofore 
 incorporated under chapter 1G4 of the Revised 
 Statutes of Ontario, 1877, or any Act incorporated 
 therewith, or under chapter 109 of the Revised 
 Statutes of Ontario, 1887, having a capitalized, fixed, 
 paid up and permanent stock not liable to be 
 withdrawn therefrom amounting to at least $100,000, 
 and having a reserve frnd amounting to not less 
 
1(52 
 
 APPENDIX A. 
 
 Compauiesin 
 which funds 
 invested to be 
 approved by 
 Lieutenant- 
 Governor. 
 
 Revocation 
 of Order in 
 Council 
 approving of 
 investments. 
 
 When trus- 
 tee not 
 cliargeable 
 for lending 
 on insuffi- 
 cient 
 security. 
 Imp. Act, 
 5l-r>2 v., 
 c. f)9, see. 4 
 
 than 15 per cent, of it.s paid up capital, and its stock 
 having a market value of not less than 7 per cent, 
 premium, and the .society or company havin^^ during 
 each of the ten years next preceding the date of invest- 
 ment paid a dividend of not less than six per cent, 
 on its ordinary stock ; provided that nothing in this 
 clau.se (//) shall in any way affect any investment 
 made under statutory authority Vjefore the passing 
 of this Act 
 
 (2) The trustees may from time to time vary 
 any such investment. 
 
 6. No investments shall be made under authority 
 of tliis Act in the debentures of any society or 
 company of the class first her(!inbef re mentioned 
 which has not obtained an order of th' L jutenant- 
 Governor in Council approving of investments in the 
 debentures thereof ; and such approval is not to be 
 granted to any society or company which does not 
 appear to have kept strictly witliin its legal powers 
 in relation to borrowing and investment. 
 
 7. The Lieutenant-Governor in Council if he 
 deems it expedient may at any time revoke any 
 Order in Council previously made approving of 
 investments in the debentures or debenture stock of 
 any society or company. Such revocation shall not 
 affect the propriety of investments made before such 
 revocation. 
 
 8. (1) No trustee lending monej'' upon the security 
 of any property shall be chargeable with breach of 
 trust by reason only of the proportion borne by the 
 amount of the loan to the value of the property at 
 the time when the loan was made, provided that it 
 appears to the Court that in making the loan the 
 trustee was acting upon a report as to the value of 
 the property made by a person whom the trustee 
 reasonably believed to be an able practical surveyor 
 or valuer, instructed and employed independently of 
 any owner of the property, whether such surveyor or 
 valuer carried on business in the locality where the 
 
APPENDIX A. 
 
 10.-] 
 
 property is situate or elsewliere, and that the amount 
 of the loan does not exceed one half of the value of 
 the pror"fty as stated in the report, and that the 
 loan was made under- tlie advice of the surveyor or 
 valuer expressed in the report. This section shall 
 apply to a loan upon any property on which tlie 
 trustee can lawfully lend. 
 
 (2) This section shall apply to transfers of exist- 
 in^,^ securities as well as to new securities, and to 
 investments made as well before as on and after the 
 4th dav of May, 1<S01, unless some action or other 
 pi-oceL'(lino' was pendin^^ with reference thereto at the 
 said date. 
 
 J." \'U't. (X.S.), (•«/>. IS, sec. hi. 
 
 9. (I) Where a trustee has improperly advanced Trustee 
 trust money on a mortcrarje security which would at '^""'f^ •"°'"*' 
 the time of thv 'nvestment have been a proper ized amount, 
 investment in all respects for a less sum than was JmP; ^V^ 
 actually advanced th(!reon, the security shall be j! '^q g^^l - 
 <leemed an authorizetl investment for such le.ss sum, 
 and the ti'ustees shall only be liable to make good the 
 sum advanced in excess thereof with interest. 
 
 (2) This section shall apply to investments made 
 as well before as on and after the 4th day of May, 
 1(S1>1, unless some action oi" other proceeding was 
 pending with reference thereto at the said date. 
 
 5ii Viet. {X.S.), cap. 16\ sec. 14. 
 
 V. LIMITATIONS OF ACTIONS. 
 {<() Personal Actions. 
 
 ENGLAND. 
 
 Imperial Statute 21 James L, Chapter 16, (Simple 
 
 Contracts). 
 
 3. And be it further enacted, Ti at all actions of 21 Jao. I., 
 trespass, quare elausum f regit .... all actions of tres- ^" *" 
 
16-i 
 
 APPENDIX A. 
 
 :ll 
 
 u 
 
 pass, detinue, action sur trover and replevin U)V 
 taking away of goods and cattle, all actions of 
 account and upon the case, other than such accounts 
 as concern the trade of merchandise betwet.ni ujer- 
 chant and merchant, their factors or servants, all 
 actions of debt grounded upon any lending or eon- 
 tract without specialty, all actions of debt for an-car- 
 ages of rent, and all actions of assault menace 
 battery wounding and imprisonment, or any of them 
 which shall be sued or brought at any time after the 
 end of this present session of Parliament shall be 
 commenced and sued within the time and limitation 
 hereafter expressed, and not after (that is to say) the 
 said actions upon the case (other tlian for shindcr), 
 and the said actions for account, and the said actions 
 for trespass debt, detinue and replevin, for goods or 
 cattle, and the said action for trespass, (juare elausuni 
 f regit, within three years next after the end of this 
 present session of Parliament, or within six years 
 next after the cause of such actions or suit, and not 
 after ; and the said actions of trespass of assault 
 battery wounding imprisonment, or any of them, 
 within one year next after the end of tliis present 
 session of Parliament, or within four years next after 
 the cause of such actions or suit, and not after ; and 
 the said action upon the case for words, within (jne 
 year after the end of this prosent session of Parlia- 
 ment, or within two years next after the words 
 spoken, and not after. 
 
 4. And nevertheless be it enacted, That if in any 
 the said actions or suits, judgment be given for the 
 plaintitl', and the same be reversed by error, or a 
 verdict pass for the plaintiff, and upon matter alleged 
 in arrest of judgment, the judgment be given against 
 the plaintitl", t'uxt he take nothing by his plaint writ 
 or bill, or if any the said actions shall be brought by 
 original, and the defendant therein be outlawed, and 
 shall after reverse the outlawry, that in all such 
 cases the party plaintiff his heirs executors or 
 administrators, as the case shall require, may com- 
 
APPENDIX A. 
 
 165 
 
 riKiuce a now action or suit from time to time within 
 a year after such judoinont reversed, or such judg- 
 ment i;iven atjainst tlie plaintiff, or outUiwry reversed, 
 and not after. 
 
 7. Provided nevertheless, and be it further 
 enacted, That if any person or persons that is or 
 shall be entitled to any such action of trespass 
 dt'linue action sur trover replevin actions of account 
 actions of debt actions of trespass for assault men- 
 ace battery wounding or imprisonment actions upon 
 the case for words, be or shall be at the time of any 
 such cause of action given or accrued, fallen or come 
 within the age of twenty-one years, feme covert, non 
 corn pi )f^ 'iiif'ufifi, imprisoned or beyond the seas, that 
 tluMi such person or persons shall be at liberty to 
 ])ring the same actions, so as they take the same 
 within such times as are before limited, aftei' their 
 coming to or being of full age, discovert, of sane 
 memory, at large and returned froin beyond the seas, 
 as other persons having no such impediment should 
 have done. 
 
 ONTARIO. 
 
 Revised St.\tute (1897), cap. 111. 
 
 1 . In all matters of controversy relative to The law of 
 }ji'opevty and civil rights resort shall continue to be fl^i?^^,*! "" 
 ha 1 to the laws of England as they stood on the said 1790, to be 
 ]n{]\ day of October, 1792, as the rule for the the rule o£ 
 decision of the same, and all matters relative to *^°'*^"'"- 
 testimony and legal proof in the investigation of 
 fact and the forms thereof in the several Courts in 
 Ontario, shall continue to be regulated by the rules 
 of evidence established in England, as tliey existed 
 on the day and year last aforesaid, except so far as 
 the said laws and rules have been since repealed, 
 altei-ed, varied, modified or affected by anj'^ Act of 
 the Imperial Parliament, still having the force of 
 law in Ontario, or by any Act of the late Province 
 
r! 
 
 166 
 
 Knglish 
 Statutes of 
 .leofails, etc. 
 before 17th 
 .Ian., 1822, 
 adopted. 
 
 Promise by 
 words only 
 not f^ufficient 
 to take the 
 case oixt of 
 the Statute 
 of Limita- 
 tions, 21 Jac. 
 1, c. 16. 
 
 Case of two 
 or more joint 
 contractors 
 or executors. 
 
 APPENDIX A. 
 
 of Upper Canada, or oi: the Province ot* (Janada, or 
 of tlie Province of Ontario, still having tlie force of 
 law in Ontario, or by these Revised Statutes. 
 
 2. The Statutes of Jeofails, of Limitations, and 
 for the amendment of the law, excepting those of 
 mere local expediency, which, previous to the 17th 
 day of January, 1822, had been enacted respecting 
 the iaw of England and then continued in force, 
 shall be valid and efi'ectual for the same purposes in 
 Ontario, excepting so far as the same have, since the 
 day last aforesaid, been repealed, altered, varied, 
 modified or attected in the mann( • mentioned in 
 section 1 of this Act. 
 
 Revised Statute (1897), cap. 146. 
 
 1. No acknowledgment or promise by words only 
 shall be deemed sufficient evidence of a new or 
 continuing contract whereby to take out of the 
 operation of the Act, passed in England in the 
 twenty-first year of the reign of King James the 
 First, any case falling within the provisions of the 
 said Act respecting actions ; 
 
 (a) Of account and upon the case other than 
 such accounts as concern the trade of merchandise 
 between merchant and merchant, their factors 
 or servants ; 
 
 (b) On simple contract or oi debt grounded 
 upon any lending or contract M'ithout specialty 
 and 
 
 (c) Of debt for arrears of rent; 
 
 2. Where there are two or more joint contractors, 
 or executors, or administrators of any contractor, no 
 such joint contractor, executor or administrator shall 
 lose the benefit of the said Act so as to be chargeable 
 in respect or by reason only of an}^ written acknow- 
 ledgment or promise made and signed by any other 
 or others of them, or by reason of any payment of 
 any principal or interest made by any other or others 
 of them. 
 
 
Al'FEXDlX A. 
 
 1(37 
 
 3. In aetiouH coiuineiicod uirainst two or more 
 such joint contraetor.s, executors or adniinistrators, il" 
 it appears at the trial or otherwise that the plaintiff', 
 though barred by the said Act of Kini;- James the 
 B'irst or by this Act, as to one or more of such joint 
 contractors, or executors or administrators, is never- 
 theless entitled to recover a»;jainst any other or others 
 of the defendants by virtue of a new acknowledu- 
 ment, promise or payment, as aforesaid, judgment 
 shall be tjjiven for the plaintiff' as to the defendant or 
 defendants a^jainst whom he recovers, and for the 
 other defendant or defendants at>'ainst the plaintifi'. 
 
 4. No endorsement or memorandum of any pay- 
 ment, written or made upon any promissory note, 
 bill of exchange or other writing, by or on behalf of 
 the party to whom the payment has been made, shall 
 be deemed sufficient proof of the payment so as to 
 take the case out of the operation of the said Act of 
 King James. 
 
 5. The said Act of king James and this Act, 
 shall apply to the case of any claim of the natm'e 
 hereinbefore mentioned, alleged by way of set-off' on 
 the part of anj^ defendant. 
 
 NOVA SCOTIA. 
 
 Rf:visED Statute (1884), Chapter 112, 
 (8ecs. 1 TO 5.) 
 
 Sec. 1. No action of assumpsit trespass (juare 
 clausum fregit, detinue, trover, replevin, debt 
 gromided upon any lending or contract without 
 specialty, or for rent, account, or upon the case shall 
 be brought but within six years after the cause of 
 action. 
 
 Sec. 2. Virtually corresponds with R.S.O. (1897), 
 chapter 14G, sees. 2 and 8. 
 
 .Iiidgraent 
 wliere pliiin- 
 t iff is barred 
 lis to one or 
 more defon- 
 dantH but 
 not as to all. 
 
 J']ndors»'- 
 ment, etc., 
 nia'" by tlie 
 payee not to 
 take a note, 
 etc., out of 
 tlie Statute. 
 
 Statute to 
 iipply to 
 
 set-off. 
 
 Sees. 4 and 5. Correspond with R.S.O. (18!)7), 
 chapter 146, sees. 4 and 5. 
 
168 
 
 APPENDIX A. 
 
 Certain othc • actions are specially provided for, 
 and the usual provisions are made for disabilities, 
 absence, etc., ay in the Act of Kin^- James. 
 
 NEW BRUNSWICK. 
 
 Consolidate]) Statute (1^77), Chaiter 85, 
 
 SECS. 1 TO 4. 
 
 This statute prescribes a six year limitation for 
 all actions except u])on scire facias, judi^ment or 
 specialty (twenty years), statutory money penalty' 
 (two years), and assault, battery, wound in^r, imprison- 
 ment or for words (two years). 
 
 The principle of Lord Tenterden's Act has also 
 been adopted in New Brunswick, for which see R.S. 
 (). (1807), chapter U() : ante p. KHJ. 
 
 BRITISH COLUMBIA. 
 Revi.sed Statute (1807), Chapter 12.S, 
 
 SeCS. 8, ET SE(?. 
 
 The provisions of the Imperial Statute, Jl James 
 1, chapter 16, and of Lord Tenterden's Act (see R.S.O. 
 (1897), chapter HO: antt; p. 106), f^i'c in force in 
 British Columbia. 
 
 I 
 
 IMANITOBA. 
 
 Revised Statute (1891), Chapter 36. 
 
 Sec. 9. " The Court may and shall decide and 
 determine all matters of controversy relative to 
 property and civil riijjhts, both legal and equitable, 
 according to the laws existing, or established and 
 being in England, as such were, existed and stood of 
 the loth day of July in the year of one thousand 
 eight hundred and seventv, so far as the same can be 
 made apj)lieable t(5 matters relating to property and 
 civil rights in this Province; and all matters relative 
 
AI'HENDIX A. ion 
 
 to testimony and Ic^al proof in the inve.stigationH of 
 fact and the forms tliereof, and the practice and 
 ])i()('('(hn'e in the Court may and .sliall be regulated 
 and jjoverned by the rules of evideiiC' and the modes 
 of jtraetiee and proeechire as they were, existed and 
 stoo'l in England on the day and year aforesaid, 
 except etc., as alt<'red etc." 
 
 Tlidt the Sliitulc of James is in force hi Mdiiitoba is dssitnied 
 ill iirini) (uithorities (c.ff., Aslidoini i\ Moutgniiierij, S Man. Hep, 
 5 JO). The foregoiiKj Maniioba Slalnte must be laken to have 
 ill t foil need the Jet of James, if not as affeetiiuj ^' properti/ or 
 civil riijhts,''' as matter of " leijal proof," <r of '^practice and 
 proeediirc." But compare with Ii.S.O. cap. Ill, sees. J and 2, 
 ante jij). IGo, JOG. 
 
 (h) LIMITATIONS— SPKCIALTIES, ETC. 
 
 OxTAHi(> Revised Statfte (1S!)7), Chapter 72. 
 
 Her Majesty, by and witl: tlie advice and consent 
 of the Legiskitivc Assembly of the Province of 
 Ontario, enacts as follows : 
 
 1. (1) The actions hereinafter mentioned shall Linntntion 
 be connnenced Avithin and not after the times commcncinL' 
 respcctivel}' hereinafter mentioned, that is to say : particular 
 
 actions. 
 {(i) Actions tor rent upon an nidenture or 3-4 W. TV., 
 demi.se, c. 42, sec. 3 
 
 (Imp.) 
 {})) Actions upon a bond, or other specialty, 
 except upon the covenants contained in any 
 indenture of mort<(a(;e made on or after the 
 l.st day of July, 1.S94. 
 
 (c) Actions upoii a recognizance 
 within twentv years after the cause of such actions 
 aro.se ; 
 
 {(l) Actions upon an award where tlie sub- 
 mission is not by specialty ; 
 
 (e) Actions for an escape ; 
 
 (/') Actions for money levied on execution, 
 within six ^x'ars after the cause of such actions arose ; 
 
170 
 
 AI»I»ENI)I.\ A. 
 
 IS 
 I 
 
 W'licrt) time 
 
 specially 
 
 limited. 
 
 Actions of 
 account, 
 etc., to be 
 commenced 
 within six 
 yen vs. 
 
 In case of 
 disability of 
 jilaintiff. 
 
 (g) ActionH for penalties, damages, or .sums 
 of luonoy given to the party aggrieved, hy any 
 statute, 
 within two years after the cause of such actions 
 arose ; 
 
 (h) Actions upon any covenant contaitujd 
 in any indenture of mortgage, made on or aftei- 
 tlie 1st day of July, 1H()4, within ten years after 
 the cause of ;iuch action.^ arose. 
 
 (2) But nothing herein contained shall extend to 
 any action given by any Statute, when the time for 
 bringing the action is by the Statute specially 
 limited. 
 
 li.S.li.C. {18!)7), i'd}). 123, see. 50, 
 
 C.S.N.li. {tS77), cap. .S'.J, sees. 1 and 2, aiile j>. ICS. 
 
 R.S.N.S. {'SS4), (■«}). IIJ, see. 24. 
 
 2. All actions of account or for not accounting, or 
 for such accounts as concern the trade of merchandise 
 between merchant and merchant, their factors and 
 servants, shall be commenced within six ears after 
 the cause of such actions arose ; and no claim in 
 re.spect of a matter which arose more than six years 
 before the commencement of the action, shall be 
 enforceable b}^ action by reason only of some other 
 matter of claim comprised in the same account, 
 having arisen within six years next before the 
 commencement of the action. 
 
 li.S.li.C. (IS!)?), eap. JJ.i, see. 4. 
 R.S.N.S. (ISS4), eap. 112, see. G. 
 
 3. In case a person entitled to such action, as 
 aforesaid, is at the time of the cause of action 
 accruing within the age of twenty-one years, or voik 
 compos mentis, then such person may bring the 
 action, within such time after coming to or being of 
 full ago, or of sound memory, as other persons 
 having no such impediment should, according to the 
 provisions of this Act, hixve done. 
 
 R.S.B.C. {1897), cap. 123, sec. S. 
 R.S.X.S. {1SS4), cap. 112, see. 25. 
 
AIM'ENDIX A. 
 
 171 
 
 
 4. x\ pUiintirt' wlio i.s I'o.sidt'nt out oi' Ontario 
 shall have no lontjor pciiod of time to coiiniu'iice an 
 action than if he were roHidcnt in (Jntario when tlu; 
 cause of action or proeocMllncir first accrued. 
 
 R.S.Ii.C. {1S!>7), vap. IJ.J, sec. 51 {lo (he vnulmvij) . 
 li.S.N.S, (ISSf), <'(ii>. 112, sec. i'5 {to the conlvnrij). 
 
 5. If a person a*;ainst whom any sucli cause of 
 action accrues i.s at such time out of Ontai'io, tiie 
 person entitled to the cause of action may hrin<( the 
 action within such times as are before limited after 
 the return of the absent person to Ontario. 
 
 R.S.Ii.C. (1S!)7), cap. IJ.l, sec. ,51. 
 R.S.N.S. {1884), cap. 112, sec. 25. 
 
 6. Where a cause of action, with r^.spect to 
 which the period of limitation is fixed Ijy the 
 Imperial Act of the 2 1st year of the rei^n of Kin<^ 
 James the First, cap. 16, sec. 8, or by an}' Act now 
 in force in (Ontario, lies against joint debtors, the 
 person entitled to the same shall not be entitled to 
 any time within which to commence such action 
 against any one of the joint debtors who was within 
 Chitario at the time the cause of action accrued, by 
 reason only that some other of the joint debtors was 
 at the time the cause of action accrued out of 
 Ontario. 
 
 R.S.B.C. {1897), cap. 123, sec. 55. 
 R.S.N.S. {/S84), cap. 112, sec. V. 
 
 7. Tlu; person so entitled shall not be barred from 
 commencing an action against the joint debtor who 
 was out of Ontario at the time the cause of action 
 accrued, after his return to Ontario, by reason only 
 that judgment has been already recovered against 
 the joint debtor who was within Ontario at the time 
 aforesa d. 
 
 Nonresident 
 plttintiffs. 
 1!»-'J0 v., 
 (Imp.) ('. !»7, 
 see. 10. 
 
 Xon-residpiit 
 (leftMidants. 
 
 As to cases 
 wliere sonic 
 joint deVitors 
 have been 
 within and 
 some with- 
 out Ontario. 
 
 Recovery 
 against one 
 joint debtor 
 no bar to ac- 
 tion against 
 another who 
 is absent. 
 
 R.S.B.C. {lS:i7), cap. 123, sec. 55. 
 R.S.N.S. {1884), cap. 112, sec. 9. 
 
 writintr, siirned 
 
 8. In case an acknowledgment 
 by the principal party or his agent, is made by 
 
 a 
 
172 
 
 APPENDIX A. 
 
 Efi'cct of 
 written 
 ac'kiiowlcilj,'- 
 nieiit ov imrl 
 pavment. 
 .'5-4 W. IV., 
 c 42, srf. ■'), 
 (r.n]..) 
 
 An action to 
 rocoviM- per- 
 sonal «'Statt' 
 of an intes- 
 tate or any 
 part tliereni'. 
 mnst be 
 brouglit 
 within 
 
 twenty yeais. 
 Imp. Act, 
 23-124 v., 
 e.Jis, see. i:). 
 
 per.soii lial)k' upon an indenture, specialty or recoo-- 
 nizance. or in case an acknowledgment is made by 
 such person by part payment, or part satisfaction, on 
 iiccotnit of any principal or interest due on such 
 indenture, specialty or recognizance, the person 
 entitled may bring an action for the money remaining 
 unpaid and so acknowledged to be due, within 
 twenty years, or in the cases mentioned in clause 
 (h) of sub-section 1 of section 1 within ten j'^ears, 
 after such acknowledgment by writing, or part 
 payment, or part satisfaction, as aforesaid; or in case 
 the person entitled is at tlie time of the acknowledg- 
 ment under disability, as aforesaid, or the part}' 
 making the acknowledgment is, at the time of m.aking 
 the same, out of Ontario, then within twenty years, 
 or in the cases aforesaid within ten years, after the 
 disability lias ceased, as aforesaid, or the party has 
 returned, as the case ma}' be. 
 U.S. B.C. {isnr), cap. 12.1, sec .5.?. 
 
 n.S.X.S. cap. II.J, sec. iiO. 
 
 9. No action or other proceeding shall be brought 
 t(j recover the personal estate, or any share of the 
 ])ersonal estate of a person dying intestate, possessed 
 by the legal personal representative of such intestate, 
 but within twenty years next after a present right 
 to receive the same accrued to some person capable 
 of giving a discharge for or release of the same, 
 unless in the meantime some part of the estate or 
 share, or some interest in respect thereof has been 
 accoinited for or paid, or some acknowledgment of 
 the right thereto has been given in writing, signed 
 by the person accountable for the same, or his agent, 
 to the person entitled thereto, or his agent ; and in 
 such case no action shall be Ijrought but within 
 twent}' 3^ears after such accoimting, payment or 
 acknowledgment, or the last of such accountings, pay- 
 ments or acknowledgments, if more than one was made 
 or given. 
 
 For corresponding statute lair in Xew Brunswick and Afanitoha, 
 see C.S.y.B. {tS77), cap. 8-J; U.S. Man. {lS91),cap. 36, sec. 9. 
 
APPENDIX A. 
 
 173 
 
 (e) LIMITATIONS— REAL PROPERTY. 
 
 Ontario Revised Statute (1897), Cap. 133. 
 
 1. This Act may be cited as " The Real Propert}- wiiort title. 
 Limitation Act." 
 
 5. In the construction of this Act, the rio-ht to ^yiit-'n tlio 
 
 make an entry or distress, or bring an action to i,t?\ieeimHl 
 
 recover any land or rent, shall be deemed to Iuiac to imve first 
 
 tirst accrued at such time as hereinafter is mentioned ; '■'<'<'''>i<''l- 
 
 (11) Where the estate or interest claimed is an 
 estate or interest in reversion or remainder, or other 
 future estate or interest, and no person has obtainefl 
 the possession or receipt of the profits of such land, 
 or the receipt of such rent, in respect of such estate 
 or interest, then such right shall be deemed to have 
 first accrued at the time at which such estate or 
 interest became an estate or interest in possession. 
 
 (12) A right to make an entr}' or a distress, or to 
 bring an action to recover any land or rent, sjiall be 
 deemed to have tirst accrued, in respect of an estate 
 or interest in reversion or remainder, or other future 
 estate or interest, at the time at which the same 
 became an estate or interest in possession, by the 
 determination of any estate or estates in respect of 
 which such land has been held or the profits thereof 
 or such rent have been received, notwithstanding 
 that the person claiming such land or rent, or some 
 person through whom he claims, has, at any time 
 previously to the creation of the estate or estates 
 which have determined, been in the possession or 
 receipt of the profits of such land, or in receipt of 
 such rent. 
 
 6. (1) If the person last entitled to any particular 
 estate on which any future estate or interest was 
 expectant has not been in the possession or receipt (jf 
 the profits of such land, or in receipt of such rent, at 
 the time when his interest determined, no such entrv 
 
 Til case of 
 t'utiue 
 
 CStiltt'S. Iiiip. 
 
 Act ;5-4 
 W. IV., 
 e. 127, sec. 3. 
 
 Fiirtlier 
 l)rovisioii for 
 case of future 
 estates. Imp. 
 Act, :i-4 
 W. IV., 
 <•, 1*7, sec. 5, 
 
 ;i7-:is v., , 
 c..r)7, sec. 2. 
 
 Time limited 
 as to fiitui'o 
 estates wlicii 
 jiei'sou 
 entitled to 
 jtai'ticiilar 
 estate out of 
 
174 
 
 API'EXDIX A. 
 
 I' 
 
 possession, 
 f'tc. Imp. 
 Aet:i7-:JH 
 v., c. f)?, 
 sec. 2. 
 
 The ease of 
 bar of future 
 estate and of 
 a subsequent 
 interest 
 created after 
 right of 
 entry, etc., 
 accrued to 
 owner of 
 pra-ticular 
 estate. 
 Imp. Act, 
 37-38 v., 
 e. 57, s. 2. 
 
 When the 
 right to an 
 estate in 
 possession is 
 barred, the 
 riglit of the 
 same persons 
 to future 
 estates shall 
 also be 
 barred. 
 Imp. Act. 
 3-4 W. IV., 
 c. 27, s. 20. 
 
 ( 
 
 Of distress shall be Diade, and no sueli action shall be 
 broutjht, by any person beconiini^ entitled in posses- 
 sion to a future estate or interest, but within ten 
 years next after the time when the ri^ht to make an 
 entry or distress, or to brnig an action for the 
 recovery of such land or rent, first accrued to the 
 person whose interest has so determined, or within 
 five 3'ear8 next after the time when the estate of the 
 person becominij entitled in possession has become 
 vested in possession, whichever of those two periods 
 is the lono-er. 
 
 (2) If the rioht of any such person to make such 
 entry or distress, or to bring any such action, has 
 been barred mider this Act, no person afterwards 
 ciaimino- to be entitled to the same land or rent in 
 respect of any subsecjuent estate or interest under 
 any deed, will or settlement executed or taking ettect 
 after the time when a right to make an entry or 
 distress, or to bring an action for the recovery of 
 such land or rent, first accrued to the owner of the 
 particular estate whose interest has so determined as 
 aforesaid, sliall make any such entry or distress, or 
 bring any such action, to recover such land or rent. 
 
 (8) Where the riglit of any person to make an 
 entry or distress, or to bring an action to recover any 
 land or rent to which he has been entitled for an 
 estate or interest in possession, has been barred by 
 the determination of the period, hereinbefore limited, 
 wliich is applicable in such case, and such person has, 
 at any time during the said period, been entitled to 
 any other estate, interest, right or possibility, in 
 reversion, remainder or otherwise, in or to the same 
 land or rent, no entry, distress or action shall be made 
 or brought by such person, or any person claiming 
 through him, to recover such land or rent in respect 
 of such other estate, interest, right or possibility, 
 unless in the meantime such land or rent has been 
 recovered by some person entitled to an estate, 
 interest or right which has been limited or taken 
 
APPENDIX A. 
 
 175 
 
 ottV'Ct after or in (lol'easance of .such estate or interest 
 in possession. 
 
 24. No action, or otlier proceeding sliall be 
 bi'outjlit to recover any sum of money or lej^acy 
 charged upon or payable, out of any hind or rent, and 
 secured by an express trust, or to recover any arrears 
 of rent or of interest in respect of any sum of money 
 or h'gacy so cliaroed or payal)h! and so secured, or any 
 damages in respect of sucli ari-ears, except within tlio 
 time within whidi tlie .same wouhl be recoverable if 
 there were not any such trust. 
 
 Time for 
 recoveriiif^ 
 eharp;es and 
 arreiirs of in- 
 terest not to 
 be enlarged 
 by express 
 trusts for 
 raising tlie 
 same. Imp. 
 Act37-;{8 
 v., c. i")?, 
 see. 10. 
 
 EgujTAiM.K Claims. 
 
 30. (1) Where any land or rent is vested in a 
 trustee upon any express trust, the right of the cestui 
 qi((' tni.st, or any person claiming through him to bring 
 an action against the trustee or any person claiming 
 through him, to recover such land or rent, shall be 
 deemed to have first accrued, according to the mean- 
 ing of this Act, at and not before the time at which 
 such land or rent has been conveyed to a purchaser 
 for a valuable consideration, and shall then be 
 deemed to liave accrued only as against such pur- 
 chaser and any person claiming through him. 
 
 In ease of e.\- 
 ])ress trust, 
 the right 
 shall not 
 be deemed 
 to have 
 ace rued until 
 aconveyanco 
 to a pur- 
 chaser. Imj). 
 Act :{-4 
 W. IV., 
 c. L'7, sec. 25. 
 
 31. In every case of a concealed fraud, the right 
 of any person to bring an action for the recovery of 
 any land or rent of which he or any per.son through 
 whom he claims may have been deprived by such 
 fraud shall be deemed to have first accrued at and 
 not before the time at which such fraud was or with 
 reasonable diliffence miofht have been first known or 
 <iiscovered. 
 
 In case of 
 fraud no 
 time shall 
 run whilst 
 the fraud 
 remains 
 concealed. 
 Imp. Act 
 3-4 W. IV., 
 C.27, see. 2(3. 
 
170 
 
 AIM'EXDIX A. 
 
 Unless in 
 the case of 
 bona fide 
 purchaser for 
 value with- 
 out notice. 
 Imp. Act 
 :{-4W. IV., 
 o.'ll, sec. 120. 
 
 32. Xotliino' in the last pivct'ding .section con- 
 tained .shall enable any owner of lands or rents to 
 bring an action for the recovery of such lan<ls or 
 rents, or for .settini^ aside any conveyance of such 
 lands or rents, on account of fraud against any bona 
 fide purchaser for valuable consideration, who has 
 not a.ssisted in the connnission of such fraud, and 
 wlio, at the time that he made the purchase did not 
 know, and had no reason to beheve that any such 
 fraud had been committed. 
 
 
 Kijjhtto 33. Xothing in this Act contained shall be 
 
 refuse relief ■, i i. • i i- •l\ i a ^^ -l 
 
 outhe deemed to interfere witli any rule oi btiuit}' m 
 
 ground of refusing relief on the ground of ac(piie.scence, (jr 
 
 acquiescence otherwi.se, to any person who.se rio-ht to hv'nvf an 
 or otiiBrwis© ' »/ i o r^ 
 
 Imp. Act action is not barred by virtue of this Act. 
 :j-4 W. IV., 
 c. 27, sec. 27. 
 
 OTHER PR()V1>X^ES. 
 REAL PROPERTY LIMITATION ACTS. 
 
 BRITISH COLUMBIA— .Scf R.S.Ii.C. {1S07), cap. l.J-l, srw. 
 15 et seq. 
 
 MANITOBA— /?..S\ Ma)i.{lSni),cap.Sn,an(lo7 Vict., mp. /O, 
 
 NEW BRUNSWICK-C..S.A'./}. {1877), cap. S4. 
 
 NOVA SC0TIA-7?..S..Y..S:. {isy4), cap. 112, .sees. 11 vl .srq., 
 and 40 Vict., cap, .17. 
 
APPENDIX B. 
 
 The order made in How v. Eaul Winterton as 
 found in the report of In re Da vies, Ellis v. Roberts^ 
 (1898) 2 Chy. at p. 144, was in the following form : — 
 " And the defendant by his counsel admitting that 
 on the 9th August, 1889 — six years before the issue 
 of the writ — there were moneys in his hands liable 
 to the trust; for accumulation by the will of the 
 testatrix directed. This Court doth order that the 
 following account be taken, that is to say, 1. An 
 account of the moneys in the hands of the defendant 
 on the 9th August, 1889, liable to the trusts for 
 accumulation under the will of the testatrix, Mary 
 Rabett, and of the rents and profits of the testatrix's 
 estate subsequently received by him in respect of the 
 said term of fourteen years ; but in ascertaining the 
 actual amount of moneys in the hands of the defend- 
 ant on the date aforesaid, any payments made before 
 that date are to be allowed to the defendant." 
 Further consideration adjourned. Costs reserved. 
 Liberty to apply. 
 
 Judgment in Want v. Camfain (Seton on Decrees 
 
 5 ED. p. 2127.) 
 
 Declare that the investment of the sum of £400 
 upon land at P., as in the pleadings mentioned, was, 
 as against the plaintiff's other than the plaintiff' W. 
 (the tenant for life), improper. And the defendants 
 C. and S. by their defence admitting assets of J. G. 
 C, in the pleadings mentioned, for the purposes of 
 this action, it is ordered that the defendants C. and 
 S. do, within ten days after service of this order, pay 
 into Court as directed by the schedule hereto the sum 
 of £400. Declare that the plaintiff" W. is debarred 
 by the Trustee Act, 1888, from maintaining any 
 action or other proceeding in respect of any impro- 
 
ITS 
 
 APPENDIX 15. 
 
 ; 
 
 !',('■ 
 
 ■fi: 
 $ 
 
 
 ih 
 
 priety in such investment, and accordingly from 
 deriving any benefit from the relief hereinbefore 
 granted. Declare that the defendants C. and S. are 
 entitled to the income arising from the .-.aid sim of 
 £400 during the residue of Ihe life of the plaintiff 
 W., as part of their testator's estate, and that after 
 her decease the said sum shall be held upon tlie 
 trusts subsequent to the life interest of the plaintiff' 
 W., declared by the settlement dated the 28th 
 November, 1872, in the pleadings mentioned, of and 
 concerning the moneys thereby settled. And let the 
 said sum of £400, when paid into Court, be dealt 
 with as in the said schedule hereto directed. Declare 
 that the defendants C. and 8., upon making such 
 payment into Court as hereinbefore directed, will, 
 after the death of the plaintiff W., and in the mean- 
 time subject to her life interest therein, be entitled to 
 the said mortgage debt as part of the testator's 
 estate. Defendants C. and S. to pay to plaintiffs 
 their costs of action up to and including this judg- 
 ment, except so far as same increased by reason of 
 W. being a party plaintiff thereto. Liberty to 
 persons interested to apply after the death of the 
 plaintiff W. for payment out of Court of the £400, 
 or any investment representing the same, as they 
 may be advised. Add lodgment and payment 
 schedule directing payment of £400 and investment 
 in consols and payment of interest accruing during 
 life of plaintiff W. to defendants C. and S. Want v. 
 Campai7i, Wright, J., 6 February, 1893, B. 806 ; 8. 
 C, 9 Times L.R. 254. 
 
 Judgment in re 8omer.set, Somerset v. Earl 
 PouLETT (8et()n on Decree.s, 5 ED., P. 2128. 
 
 This action, &c. — Declare that the investment of 
 the sum of £34,612 in the pleadings mentioned by 
 the defendants and G. 8., deceased, on the security of 
 the estates, &c., comprised in the indentures, &c., in 
 the pleadings mentioned, was, so far as regards the 
 plaintiffs B., &c. (infants), a breach of trust on the 
 
AIM'ENDIX M. 
 
 170 
 
 part of the doteiKhiDts au'l the hixuI (}. S. Declare 
 that so far as regards the plaiiitifis B., &c. (infants), 
 th(* said estates comprised in tlie said indentures 
 would at the time of the investment of the said sum 
 of £84,012 upon the security thereof have been a 
 propel investment in all respects for the sum of 
 .i2(),()00, and no more, and ou^^ht to be <leemed to 
 have been an authorized investment for such sum of 
 X2(),00(). Declare that so far as regards the plaintiff's 
 B., &c. (infants), the defendants are jointly and 
 severally liable to make good to the trust estate the 
 ditl'erence between the aggregate amount of the 
 proceeds of sale of such portion of the said estates 
 as ?■?.., been already sold, and the proceeds of sale of 
 the remainder of such estates hereinafter directed to 
 Ix' sold, when sold, or the said sum of £2(),000 
 (whichever shall be the larger sum) on the one hand, 
 and the said sunk of £.S4,()12 on the other hand, and 
 that until such difference shall have been made good 
 the said plaintiffs are entitled to a lien foi' the 
 amount of such difference upon the proceeds of sale 
 of such portion of the said estates as has already 
 been sold, and upon the portion of the said estates 
 remaining unsold, and upon the proceeds thereof 
 when sold ; let the defendants proceed with the sale 
 of such portion of the said estates as remains unsold. 
 ] )eclare that so far as regards the plaintiff' A. (tenant 
 for life), his right to sue in respect of the matters 
 complained of by him in this action is barred by 
 sec. 8 of the Trustee Act, 1888. Declare that the 
 defendants are entitled to have the life interest of 
 the said plaintiff A. in the wdiole of the trust estate 
 under the said indenture of settlement of, Szc, im- 
 pounded by way of indemnity to the defendants in 
 respect of their joint and several liability herein- 
 before declared. And let the following inquiry be 
 made: (1) An inquiry what is the amount of the 
 difference for which the defendants are jointly and 
 severally liable pursuant to the ' claration in that 
 behalf hereinbefore contained ; And the defendants 
 
Hi 
 
 i 
 
 m 
 
 |i|i; 
 
 ill 
 
 180 APPENDIX H. 
 
 by their counsel desiring to retire t'runi tlie trust of 
 the said indenture of settlement, Let the plaintiff A. 
 be at liberty to exercise the power of appointment 
 coi'Uiined iu the said indenture of settlement by 
 appointing two ov it, ore proper persons trustees of 
 the same indenture in the place of the defendants 
 and G. S., deceased (usual conse(|uential directions) ; 
 Let the income arising from the whole of the said 
 trust estate during the life of the plaintiff A., including 
 any arrears of such income now outstanding, be from 
 time to time applied as follows, that is to say: — In the 
 first place, in paying to the defendants interest at the 
 rate of 4 p.c. p.a. on the amount which ma} be paid 
 by them under the declaration and incjuiry herein- 
 before contained, or on so nmch thereof as shall not 
 have been recouped to them as hereinafter mentioned 
 (such interest to be treated as commencing on tlie 
 date of the said pjiyment by the defendants), and in 
 the second place in recouping to the defendants the 
 amount to be so paid by them as aforesaid. — Tax 
 costs of the infant plaintiffs, and also costs of the 
 defendants, so far as incrc^ased by the plaintiff A., 
 being joined as a plaintiff in his personal character. — 
 Defendants to pay costs of infant plaintiffs when 
 taxed, and plaintiff A. to pay defendants amount of 
 their said co.sts when taxed. — Adjourn further con- 
 sideration. — Liberty to apply.- — Re Somerset, S. v. 
 E. Poulett, Keke\\'ich, J., 12th April, 1893, B. 488. 
 
INDEX. 
 
 Absence, 94, 171 
 
 Account 
 
 action for acjainst truHtoe, 41), 70 et seq. 
 
 in e(iuity, 40 
 
 order made in, 7(5, Appendix B., p. 177 
 
 restrictions upon, 40, 71, 72, 70, 177 
 
 rule governing, 77 
 
 subject to Statute of Limitations, 49, 71, 73 
 
 when time begins to run, 70-77 
 agent must be made to render promptly, 100,155,156 
 amount in hand six years before action, a question 
 of fact, 72, 76, 77 
 
 recovery limited to, 75, 77, 177 
 
 Accrual 
 
 of cause of action, see Cause of Action. 
 
 Acknowledgrment 
 
 admission must amount to, 37 
 after action brought, 37 
 agent by, 36, 171 
 
 to, 37, 92-3 
 amount of debt need not be stated in, 37 
 barred debt, revival of by, 80 (note) 
 cestiiis que trustent, to one of several, 91 
 conditional effect of, 37 
 co-trustees, by one of several, 35, 36, 166 
 creditor, must be to, 37, 91 
 
 creditors, several having like interest, to one of, 92 
 differences between English and Ontario law, 36 
 effect of, 37, 69, 80, 91, 92 
 interest, payment of by mortgagor, 58 
 
 by trustee, 59, 80 (note.) 
 joint debtors, 166 
 Ontario law as to, differs from English, 36 
 
 similar to English, 92-3 * 
 
 i 
 
IH2 INDEX. 
 
 Acknowled8rment-6V;w//>///<Y/. 
 
 })ait payiiiont, by, .S5, .'i7 
 
 on account of sjK'cialty debt, .S8 
 
 In'oniiHc to pay interred from, 87, 02 
 
 representative, to, 98 
 
 re(|uiHiteH of, in <^eneral, 8(5-7 
 
 Hijtifnature of debtc^r neci'.s.sary, 87 
 
 ,sinjj)le contract debt, of, 85-7 
 
 specialty debt, of, 88, 171 
 
 stranger to, insntlicient on simple contract, 92-8 
 sutticieiit on specialty debt, 92 
 
 TenterdeTi'.s (Lord) Act, under, 87, IGG 
 
 Trustee Limitation .\ct, under, bow it operates 57 
 
 \vritin<( necessary, 87, IG(), 171 
 
 Acquiescence 
 
 a defence in e(juity, 1, 8, 20, 118 
 
 when not, 8 
 assent, at least tacit, involved in, 10 
 cestui que trust, of in In-each, 118 
 defence of, })reserved, 97, 98, 17() 
 tlistin^uislu^d from laches, 10 
 
 limitations, 9 
 favoured in e(|uity as a defence, 98 
 bow afi'ected by fraud of trustee, 20 
 knowledjife essential to, 9 
 length of time, no fixed rule as to, 9 
 Trustee Limitatioji Act, under, 97 
 under 8 k 4, William IV., cap. 27 : 97, 17(5 
 under R.S.O. (1897) cap. 129, sec. 88; 118, 17(1 
 
 Administrator 
 
 See Executor. 
 
 Admission 
 
 See AcKN( )Wlej)OM ent. 
 
 Advertisement 
 
 for creditors, 120, 182, 188, 139 (note), 158 
 
 Agent 
 
 acknowledgment by, 30, 171 
 to, 37, 92, 93 
 of specialty debt, 88 
 
 U 
 
INDEX. 
 
 188 
 
 AgQYii — Con /in tied. 
 
 action I'or (laina^i'.s, ri^lit ol" at^aiiist, vW'evt ol', 41 
 
 authority, Hcopf of, 28, 2!>, 'M) 
 
 • liHcrctionary trust may not he (l<'k't;ate<J to, Ji4, 105 
 
 employ iiu'ut of when justified, 105, 155 
 
 expert, when to be employed, 1 0(1 
 
 fraud of, 2:i, 2(5,31 
 
 for principal's hentitit, -U), .SI 
 
 imputable to principal, 24, 20, 2\)-'M 
 
 trustee not privy to, 24, 25 
 misappropriation by, effect of, 41 
 njisrepresentations by, 27, 28, 20 
 money in hands of, is "still retained" })y trustee, .'{!), 41 
 part payment by, and to, 87 
 
 what suffices to obviate the statute, 37 
 placint; moneys in hands of, 35, 41, 100, 100, 155 
 restrictions on employment of, 105, 100, 155, 150 
 retainintj trust property, 30, 41 
 scope of authority of, 27-31 
 supervise, trustee nuist carefully, 100, 120 
 too nnich confidence may not be reposed in, 27-30, 120 
 trust funds coinmitted to care of, 35, 41, 100, 100, 
 155,150 
 
 Amount of Debt 
 
 acknowledj4"ement need not state, 37 
 
 Annuity 
 
 See Possession, Interest in. 
 
 Anticipation 
 
 restraint on. See Maruied Women. 
 
 Arrears 
 
 account of, 71, 75-77 
 
 limitation on recovery of, 02, 71, 72, 77 
 
 Assig-nee of Trustee, 17 
 
 Bar 
 
 See Stati'tes of Limitation. 
 
 Beneficiary 
 
 See Cestui i^ue Trust. 
 
 Bona Fide 
 
 equivalent of honestly, 123 
 
184 ^n)EX, 
 
 Bonds 
 
 Soo Specialty Debts. 
 
 Breach of Trust 
 
 a hrtiach of contractual duty, 50, 54 
 action for account upon, 4}), G.'i 
 
 to nicovcr money, (i.S, 151 
 after objection umde by e.q.t., 141 
 agent of trustee, by. See AuENT. 
 cauHe of action, is, 41,4!), 5H, (Jl, HH, (iO, 74, 0(5 
 
 every barre<l after six years, 78, 7!) 
 certain breaches excepted from Trustee Limitations 
 Act. See Fraud, Stilf. Retained and 
 Conversion hy Trustee 
 certain claims for, limitation applied to, 8 
 cental que trunt only, not barred as to, 8 
 clause A. applied to, 4!), 50 
 clause B. applied to, 03 ct seq 
 co-trustees, by one of, 34 
 creates simple contract debt generally, 51, 53, 5G 
 
 specialty debt, when, 54, 56 
 debtor and creditor, relation created by, 51-54, 50, 73 
 
 in what sense not, 52 
 defined, 112 
 
 directions of Court, effect of , upon, 142, 143, 144, 159 
 directors committing, 14, 15, 16, 45, 47 
 each, a cause of action, 74, 7(5 
 easily committed, 99, 112 
 equitable doctrines govern, 05 
 errors of judgment are not, 103 
 foundation of Statutes for Relief of Trustees, 49, 50, 
 
 51, 64, 118 
 fraudulent. See Fraud. 
 
 excepted from Relief Acts, 11, 19, 21, 98, 104. 122 
 honest — what is, 122 et seq. 
 inadvertent, treatment of, 104, 127 
 lapse of six years bars all causes of action of persons 
 
 entitled in possession, 79, 80 
 liabilities of trustee for, are numerous and varied, 100 
 limitations, now subject to, 11, 68, 79, 98 
 negligent, not excused, 129, 130 
 
INDEX 185 
 
 Breach of Trust— 6>;«//>///<</. 
 
 not foniK^ily witliin tlu( Statutes ol' l^imitation, 2, S 
 
 oiniHHiou to Hcek (lin'ction.s of Court, 142, 14.'J, 144 
 
 over coufidt'uce in co-truHttM' or airt'ut, 121), l.*JO 
 
 partnorH, by one of, 'Mi 
 
 prior to Statutes, i.s covered by them, 95, 121 
 
 prompted by f.f/i., ll.S, 15(5 
 
 reaHonablo. See Reasoxaule. 
 
 relation of trustee and c.q.i. after, 51-54 
 
 Statutes of Limitation, not f armerly within, 2, 8 
 
 now within, 11, 1 8, 1 (5, 5(), (15, 95, 9H 
 technical, what excused, 103, 104, 128, 132, 133, 
 134, 13() 
 
 evidence required for, 117, 137 
 when not excused, 137, 138 
 time runs from conniiission of, 41, 60, 61, 68, 69, 75, 
 
 80, 81, 82 
 what formerly not excused, 103 
 wilful, under Technical Breaches Act, 1 24, 
 
 Trustee Act, 154 
 
 Trustee Limi ations Act, 18 
 
 Cause of Action 
 
 accrual of, 41, 58, 61, 68, 69, 75, 81, 83 
 
 concealed fraud, effect of on, 22, 25, 32, 65, 175 
 disabilities, 58, 60, 85, 94, 165, 170 
 not affected by Trustee Limitations Act, 58 
 reversionary interests, upon, 58, 59, 75, 81, 83, 88, 
 
 90, 173, 174 
 time runs from, 58, 61, 68, 69 
 
 whatever the form of action, 70 
 
 arrears for, 75 
 
 breach of trust forms, 41, 49, 58, 61, 68, (J9, 74, 96 
 each a separate, 74, 76 
 
 contribution in action for, 60 
 
 co-sureties, and co-trustees, between, 60, 61 
 
 every, barred six years after breach, 78, 81, 82 
 
 indemnity, in action for, 60 
 
 interest, gales of, 62, 67, 78, 81 
 
 periodical payments, 78, 81 
 
180 INDEX. 
 
 Cestui que Trust 
 
 account, right of, to, now limited, 75, 7G 
 acknowledgment to (see Acknowledgment), 91 et. nfq. 
 acquieHcence and laches affect, 2, }), 113, 150 
 
 when not, 3 
 certain claims of formerly barred b}^ time, <S 
 co-cestuis que trustent, 88 et seq. 
 
 acknowledgment to one, 91 et seq. 
 
 class action on behalf of. 93 
 
 disability of one, effect of on others 94, 170 
 
 life-tenant barred, reversioner not, 88, 90, 91 
 suing with reversioner, 88, 91, 15 1 
 
 one barred, others not, 88, 91 
 
 several having same interests, 93 
 creditor of trustee after breach, 51-54, 09, 73 
 
 in what sense not, 52 
 disabilities of, 57, 59, 105, 170 
 entitled to benefit of trustee's judgment, 105 
 
 trust estate on distribution, 111, 112 
 following trusl estate, personalty, 3, 53, 97 
 
 lands, 3, 7, 53, 97, 174 
 fraud upon, what breaches of trust are, 20 
 
 notice of to, effect of, 2() 
 ignoraiice of, of breach does not extend time, 59, 01 
 instigatirg breach, impounding interest of, 1 13,150,17:) 
 Judicature Act, under, 8, 152 
 
 married woman (see Marhied Women), 40. 84 et «<'/. 
 objecting to proposed action of trusteee, 141 
 owner of trust property in hands of trustee, is, 53 
 payment to, see .^.cknowledgment. 
 prompting breach of trust, 113, 150, 179 
 responsibilities of trustees to, 101 
 reversionary protected, 57, 58, 81, 89, 90, 151, 172 
 under constructive trusts, lapse of time bars, 3 
 
 express trusts, not subject to limitations, 3, 8, 152 
 
 Chargres on Lands 
 
 See Lands. 
 
 Class Action, 98, 94 
 
INDEX. 1H7 
 
 Clause A.— 48 et seq. 
 
 account, action for under, 50 
 
 breach of trust, foundation of action under, 4J), 51 
 
 construction of, 48, 50, 55, 50 
 
 constructive trusts not within, 54, 55 
 
 contribution, action for between co-trustees, 50, (50 
 
 difficulties in application of 48 et seq. 
 
 express trusts, 50, 57 
 
 loss of trust funds, action for, 50 
 
 period of limitation under, 50 et seq. 
 
 specialty debts, for, 56, 57, 07 
 vStatutes of Limitation assumed to be applicable, 48 
 what cases are within, 48 et seq. 
 
 Clause B.— ()3 et seq. 
 
 actions wiiliin, 03 et seq., 07 
 
 not within, 48, 04 
 construction of, 08, 01) 
 constructive trusts within, 55, 00 
 directors within, 05 
 easy of application, 48, 08 
 excludes all actions to which any existing' Statute of 
 
 Limitations applies, 48, 04 
 express trusts, 07 
 
 actions on {apparently within, 04 
 limitation period under, 07, 09 
 
 married woniwn, separate estate of, affected bv,84,85,80 
 not clearly worded, 08, 87, 98 
 specialty debts, 07 
 
 Client 
 
 '^ee Solicitor. 
 
 Co-Cestuis que Trustent 
 
 See Cestui que trust. 
 
 Co-Contractors 
 
 See Co-Trustees. 
 
 Co-Debtors 
 
 (See Co-Trustees) 160, 167, 171 
 
188 INDEX. 
 
 Co-Executors 
 
 See Executor and Co-Trustee.;. 
 
 Company 
 
 See Direc ' 'Rs. 
 
 Concealed Fraud 
 
 cental que trust can sal'ely presume against, 27 
 effect of upon limitations. 22, 25, 32, f)5, 80 (note), 175 
 equitable doctrines govern, 65 
 excepted expressly from, Ji k 4 Wni. W., cap. 27, 
 
 7,174 
 instances of, 22, 32 
 
 no active Tneasures to conceal necessary, 2() 
 outside of Statutes of Limitation, 8, 05, 170 
 
 reason why, 3, 05 
 partners how affected b}^ 33 
 postpones accrual of cause of action, 22, 25, 32, 17o 
 
 Conditional Acknowledgrment 
 
 (See Acknowledgment), 37 
 
 Constructive Trustees 
 
 See Truhtee.s. 
 
 Constructive Trusts 
 
 See Trusts. 
 
 Continuing Duty 
 
 does not postpone operation of Statute, 61 
 
 Contract 
 
 relation of trustee and c.q.t. regarded as, 50 
 breach of, 50, 52, 73 
 simple, 51, 53, 50, 73, 103 
 specialty, 50, 54, 50, 57, 109 
 
 Contribution 
 
 action for within Clause A., 50 
 between co-trustees, 34 
 
 Conversion by Trustee, 48, 73, 98, 150 
 
 appropriating funds to another account, 44 
 constructive, 44 
 director, 44 et seq. 
 embezzlement by clerk, 43 
 innocent, i.e., not fraudulent, 43 
 
INDEX. 
 
 189 
 
 Conversion by Trustee -Co«//;/?/^^. 
 
 not in cascH of triflin^r or indirect interest, 43, 44 
 not on payment of debt with trust funds, by borrower 
 
 for whom trustee is surety, 44 
 securities sold by trustee to his estate, 43 
 when property deemed to have been converted, 44 
 
 Co-Trustees 
 
 acknowledgment by one, 35, 3(), 1G6 
 contribution between, 34, 50, 80 
 discretionary trusts, 34 
 exclusive control by one, 35, 107 
 fraud of one, imputable to other, 34, 35 
 
 to which other privy, 22 
 indemnification of one by other, 34, 80 
 in pari delicto, 34 
 liability of one for acts of other, 34, 80, 107 
 
 grounds of, 34 
 limitation between, 50, 01 
 over confidence of one in other, 120, 130 
 part payment by one, 37 
 
 responsibility of one for other, 22, 35, 107, 129 
 time runs between, when, 01 
 
 Court 
 
 directions of, failure to obtain, 132, 142, 143, 144 
 
 for trustee, 113, 142, 143, 144, 150 
 
 small amount involved, 143 
 
 when useless to seek, 144 
 discretion of under Technical Breaches Act, 145 
 evidence requisite as foundation for relief, 113,136,137 
 jurisdiction under Technical Breaches Act, 116,117.145 
 limitation, will not raise defence of, 08 
 married women's property, power over, 86 
 payment into, efifect on barred interest,-., 80, 00 
 
 for reversioner's security, 00 
 requires evidence upon which to act, IIC, 136, 137 
 will draw legitimate inferences of fact, 117 ' 
 
 Covenants 
 
 See Mortgage and Specialtv Debts. 
 
*t I 
 
 100 • INDEX. 
 
 Creditors 
 
 See Cestui (^ue Trust and Debtor and Creditok. 
 
 51, 00 
 advertisement for, 120, 182, 133, 139 (note), 15H 
 suin},^ for devastavit, 118, 132, 134, 130 
 
 Damages 
 
 action for, on breach of trust, 3, 42 
 time runs from breacli, 41 
 
 Debt 
 
 acknowledgment of (see tliat title), 69 
 
 action of for money had and received, (P, (id 
 
 breach of trust creates, 51, 53, 00, 73 
 
 failure of tv\ stee to collect, 102, 108, 134, 130, 157 
 
 how executors may bar claims for, 157 
 
 responsibility of executor for collection of, 108, 134 
 
 135, 130, 157 
 specialty (see Specialty Dehts), 54, 56, 57, 07 
 
 Debtor and Creditor 
 
 breach of trust creates relation of, 51-54, 50, 00, 73 
 limitation applicable to, 51, 50, 57, 00, 73 
 right to recover money, 50 
 
 Deceit 
 
 action of, 31 (note) 
 
 Defences 
 
 existing not taken away, 00, 151 
 
 Delay 
 
 See Laches and Statutes of Limitation. 
 
 Devastavit 
 
 action for, 118, 132, 134 
 
 Diligence 
 
 See Laches. 
 
 required of trustee, 101, 109 
 
 Directions of Court 
 
 See Court. 
 
 Directors 
 
 clause B. covers, 05 
 
 concealment of interest by, on sale to company, 4() 
 
 constructive, or express trustees, 14, 15 
 
INDEX. 
 
 I!> 
 
 Di PeCtOPS— Contin tied. 
 
 conversion by, of company's assets, 40 
 
 formerly not within Statutes of Limitation, H) 
 
 mistakes of judgment by, 45 
 
 negligence of, 45 
 
 responsibilities of, how limited, 45 
 
 sales by to company, 40 
 
 secret profits made by, 40 
 
 vStatutes of Limitation did not apply to, 1 (i, 45 
 
 Trustee Limitations Act covers, 14, L5 
 
 trustees, 14, 10, 45 
 
 for whom, KJ, 45 
 
 not for creditors, 1 
 
 not ordinary, 45 
 ultra vires acts of, 45 
 
 use of assets of company by, 45, 40 
 
 Disabilities, 165, 170 
 
 absence from jurisdiction, 94, 171 
 
 co-cestuis que trustent, of one of, 94 
 
 coverture, 84 et seq. 
 
 effect of, under Trustee Limitations Act, 5<S, 59, (iO, 
 
 84, 94, 178, 179 
 infancy, 59, GO 
 policy of Courts as to, 94 
 time runs from removal of, 00, 85 
 
 Discovepy 
 
 of cause of action, 9, 01, 80 
 of fraud, 22, 24, 25, 20, 170 
 
 Discpetion 
 
 of Court, 145 
 
 of trustee, 105, 108, 110 (note) 
 
 Dishonesty, 21, 104, 122 
 
 DistPibution of Tpust Estate 
 
 duties as to, 111, 112 
 
 pending, 109 
 risks attending. 111, 112 
 
 Domestic Law 
 
 trustee presumed to know, 103 
 
192 INDEX. 
 
 England 
 
 law of, in Manitoba, 168, lOO 
 
 Ontario, 1(55, 10() 
 Technical Breaches Act in, 158 
 Trustee Limitations Act in, 150 
 
 Equitable 
 
 claims to lands or rents, 7, 175 
 debt, action for, 49, 08 
 
 limitations upon, 8, 40 
 doctrines crovern breaches of trust, 65 
 
 concealed fraud, 65 
 Equity 
 
 account, action for. in, 49 
 
 acquiescence and laches in, *3, 9, 26, 97, 113, 176 
 
 ancillary, concurrent and exclusive jurisdiction of, 1, 2 
 
 applies Statutes of Limitation by analogy, 1, 64, 66 
 
 artificial rules of, governing trustees, 99 
 
 concurrent administration of law and, 119 
 
 contrasted witli law. 104 
 
 favours cestiiis que trastcnt, 99 
 
 follows the law, 1, (}{i 
 
 harsh treatment of trustees in, 99, 103, 104 
 
 in, — in contradistinction to "at law," 119 
 
 indemnity clauses, effect of, in, 107 
 
 innocent trustees severely treated by, 104 
 
 excuse for, 113 
 laches and acquiescence in, 3, 9, 26, 97, 113, 176 
 laxity of, 103 
 married women in, 85 
 open door of Court of Chancery, 113, 159 
 
 divergencies in treatment of trustees, 103, 146 
 practice of, regarding limitations, 1-10, 66 
 
 trustees, 101, 102, 104 
 rule of conduct for trustees in, 101-102 
 severity of treatment of trustees in, 104 
 strictness of, 103, 104 
 trusts within exclusive jurisdiction of, 2, 65 
 
 Estoppel 
 
 misrepresentation by agent, 27, 28 
 by trustee, 30 
 
INDEX. 
 
 im 
 
 Evidence 
 
 ot ackiiowlcdoiiifiii, ;{7 
 
 r«'(|iiisiir nuiU'v 'IVflmiciil Hivachrs Ad. I 17, |:;7 
 Exceptions 
 
 to 'IVustcc Liiuiiatioiis Act. scr KiiAii), •■Still Hi-;- 
 
 TAINLD," and CoWKlisiox |!V TlU'STEK 
 
 Executor 
 
 Sec TinsTKHS. 
 
 action I'or Jr/v(.s/f///7 against. I IN. LSI, \:]-2 
 M«l\rrtisiiiu- I'oi- eivditors, 120. |;}2. |:]!», l.-,s 
 
 c'onipouiidin^dfhts. lOS (note), 157 
 
 • Ichts, collcciion ,)|; |(),s, |:;4 
 
 <liivctioiis of Couil for. 144, 15!) 
 
 • lisciTtion of, I OS. I:}:}. |:{4, |.S(i 
 duties to family, |:;:{ 
 nco-lcc'tino' duties, 2S, I :}2 
 
 not a trustee. 7, I I.S 
 
 of trustee, i 7 
 
 ^)i'iiii(i /"'■I'- s[an<h\rt\ i)[' dutv, 140 
 
 provisions for ijrotection of. i57-l5<> 
 
 Statute of Limitations applied to, 7 
 
 torts of testator, liability for. !)(i. 155 
 
 limitation of action foi-. !»(;, !)7, 155 
 under 'rechnical Hi-eaclies Act, 11 -S, I l!l. | 20 LSI I 5. '5 
 when a trustee, (J, !)(), 1 Ls, | 20 
 within Trastoo Limitations Act, !»U, 150 
 Experts 
 
 employment of l)y trustee, 10() 
 
 Express Directions, 17 
 
 disobedience to. 17, IS, 107 
 
 Express Trusts 
 
 See TiU'STs. 
 
 Fairly Entitled to Relief, uw-, mi 
 Father 
 
 as o-uurdian of infant, h'mitation, (JO 
 entry by, upon infant's estate, GO 
 
 Foreigrn Law 
 
 trustee not presumed to know, lO.'i 
 
104 
 
 IXDEX. 
 
 Forms of Orders 
 
 A])j)t'iulix l>., p. I 77- ISO 
 
 Fraud and Fraudulent Breach of Trust, 19 
 a<,a'nt of, 2li, 25 
 an exception to Teeliniciil lireaclies Act, 104, 122 
 
 Ti-nstee Limitations Act, II, I!), 21 , 7.*}, !).S, !.")() 
 ccslai (/iir (riisl, not hound to look Tor, 27 
 concealed. Si'c CoXCKAI.KD FltAlD. 
 concealment of hy trustee, 22, <S() (note) 
 co-trnstee.s by om; of, »'U, •'>.') 
 defined in cases of breach of trust, 20 
 dir»'ctors, misccaiduct of <;i'nerally is, 45, 4(1 
 discovered, when deemed to he, 2(i, 27 
 dishonest motive, l<S. 122 
 disobedience to express directions, 17, IS 
 i^ain, not essential as motive for, 20 
 honesty as o])pose(l to, 122 cf wv/. 
 iiinorance of, of co-trustee or aii'ent, 2.S, 24, 25 
 improper motive makes In-each of trust, 20, 21 
 knowled^^e of, of co-trustee or a^ent, 2.'}, 24, 25 
 leoal, 20, 28, :U (note), 122 
 misre]M"esentation, W I 
 moral c(/,uplicity essential to, 1!) 
 moral, what is, 20 
 no limitation for, 11, 19, 21, 7 , 104 
 
 excuse for, 104, 122 
 notovietv of, not material under 'IVustee Limitations 
 
 Act, 25 
 of a<;ent imputable to principal, 24, 32 
 of partner, 33 
 of .solicitor, 23, 130 
 of truste(>, 22, 23, 32, 104 
 
 partners' liability of on(3 for acts of others, 33 
 party or priv}' to, means more than re.spon.sible for, 24 
 
 moral complicit}' implied by, 23 
 
 when trustee is, 21, 23, 25 
 pursued to last extremity, 104 
 time runs from discovery of, 26, 27 
 whatis, 20, 21 
 wilful breach of trust is not necessarily, IS 
 
I\I>K\. 
 
 in.' 
 
 Guardian 
 
 oc-('ii).ati()ii of iiifiuit's estate h\\ (iO 
 time runs for, IVom nijijoi'ity ol" infant, (iO 
 Honest 
 
 " t'rauilulcnt " is not the converse ol", Il>2, I 2.S 
 plaintiff helped hy the Courts, !I4 
 trustee, iufh'rterent is not, I li:}, 125 
 
 "inst !)e to enjoy hen.-Ht of Reli,>r Aets 1 «) 
 104, 122 
 
 must sliow conchiet to l)e, I 17 
 
 not protected formerly, !)!), |()(), |()4 
 
 protected now. I 22, I.S.'i 
 
 purposely makin^' no en(|uii-y, 124 
 
 tr«'ate 1 harshly, !)!), |()4 
 
 who is under Technical Hivaches Act, 122 ff ,svy/. 
 
 wilfully conniiitttini;- l)reach is not, 124 
 
 "Honestly," vi2.]2r, 
 
 See HoNIJST. 
 
 absence of fraudulent motive not sole re(,uisite 1 •>;{ 
 as trustees, I2;i i , - 
 
 in cases excluded by this re,|uirement, conduct is 
 
 <;en(,'rally unreasonable, 125 
 meanini;' of, I'll^rf i^rq. 
 not e(juivalent to "not fraudulently," 122 
 Husband 
 
 See MAHHtEi) Women. 
 
 Identity of Debt, H7 
 
 Igrnoranee 
 
 of breacli, no excuse for delay, 0,' 61, 80 
 of facts, by trustee, 108 
 
 inconsistent witli laches or aeriuiescence, !) 
 of fraud of a^^-ent, or co-trustee, 24, 25 28 •><) 
 of law, effect of, 108 
 of trust, trustee excused for, when, 108 
 
 Implication 
 
 of promise to pay from acknowledgment, 87 
 of trust, (see Trusts), 5, 6 
 
l!>(i 
 
 INDKX. 
 
 Income 
 
 uiTfiii's of, what rccovcffiblc, il'l. 77, S') 
 (Ict'iuilt ill pjiyiiit'iit of, 75, 7S 
 duty of tniHlci' iis to, I I I 
 
 incrctiHc of, siil)onliiuiti' to pi'cscrvatioii of rorpiis, 140 
 loss of, tlirou;;li ii('(;,l('C't of trustee, I I I 
 rcccijit of, wlicii it docs not prevent Statute ot I, imit- 
 ations running', 70, 72, HO, <S1 
 ri^i'lit to, when I'arreil, .')!), o2 
 
 trustee entitled to when life tenant haired, <S!l, 177, 
 I7.S-1.S() 
 Indemnity 
 
 hctwt'cii eo-trustees. ."{-l-, 107 
 
 clause in trust deed, 107, ir)4 
 
 for trustee, from c.q.f. insti*^'ating breach, 1 1;}, loli, 17!) 
 
 Infancy 
 
 See DlSAlilLI'llHS and (Jr.\|{|)IA\. 
 
 "In Law" 
 
 nieaninu' of ii» 'I'echnical Breaches Act, 11!' 
 
 Insanity 
 
 Sec DiSAI'.IMTlKS. 
 
 Instalments 
 
 non-paynicnt of, ett'ect of, 77, 7<S 
 
 Interest 
 
 See ACKNOWI.KIXJMKXT. 
 
 default in payment of, 07, 75 
 
 i^ales of, how far se})arate causes of action, 62, 77, 7S, 79 
 
 pa^Miu'iit of hy trustee, 5!>, <S(){n<>te) 
 
 six years' arivars, limit of recovery for, ()2, 77, 85 
 
 trustee entitled to, when life-tenant barred, <S0 
 
 Interpretation Clause, 1;5, 17, !)'> 
 
 Intestate 
 
 Action to recover per.sonal estate of, limitation, 172 
 
 Investments 
 
 109 et seq. 
 
 action for ne^litjent, ill 
 dutv of trustee to make, 109 
 equity, rules of, as to, 110 
 
INDKX. 
 
 i!»; 
 
 Investments ('ontimn-d. 
 
 I'oi' security of r<'\fcsi()ii(.|s, !)() 
 
 inipioprr, 102, |()7, I OS, Ml, I2!>, |:},S, Uli 
 
 loss upon c'uimot he set off iioainst o-uiii, I i |, |;{,s 
 ivtaiiiiiin-, I OS, |;'7, |;{s 
 
 liahilitics of tnistccs upon, nuin.-rous, 11 I 
 ni()rt;;a;;'(",s, upon, sec MoirniAca;. 
 nt'o|i(^r,.nt 120 
 
 proper, what arc, 102. I lo, hio, |(;| 
 
 should be retained, 1 07 
 protection of trustees as to, III, 14(1, l()2 
 statutory pro\ isions as to, I 10, 1.')!), v\ .svy/. 
 trustee accountal)Ic foi- faihuv to make, 10!) 
 
 uiisrcprcscntation as to, 4."> 
 
 Joint Debtors Kio, l()7, 171 
 Judg-ment 
 
 See Sl'KCIALTV DkI'.TS. 
 
 l)ariv<| i-.(j.i. derives no advautao-c from, SS, 04, 151 
 
 • ■rroi's of, trustee not responsible for, |():}, |:}s 
 
 forms of, 177- 1 SO 
 
 ill class action, 04 
 
 of trustee, r.^./. entitled to benefit of, 105 
 
 Jurisdiction 
 
 See Court. 
 
 ancillary, concni'reut and exclusive, I, 2 
 
 orin-inatini;' summons on, 14.'i 
 
 Knowledg-e 
 
 acquiescence imports, 
 essential to laches, !) 
 
 not for <lei'ence of limitation, 9, Gl, SO 
 
 except in case of concealed fi-aud, 0, .'J2 
 of breach by trustee, effect of, I2:M25 
 of fraud of ao-ent, or co-trustee, 22-2!) 
 
 when assumed, 2(i 
 of law l»y trustee, presumption as to, lO.S 
 
 Laches 
 
 a defence in equity, 1, 3, 2(5, !)S 
 
 when not, -S 
 assent not involved in, 10 
 
108 
 
 INDKX. 
 
 Laches — Continued. 
 
 (l('t'«'iu't' of pn'Mcrvod, 07, 08, 170 
 (li.stiii^uislicd tVom jU'ciuicsccncc, 10 
 
 liinitiitionH, !) 
 favoured in ('(luity as a (h'fciu'u, 08 
 how art'ct'tcd by fraud of truHtce, 20 
 knowlcd^^c; «'HS('utial to, 
 no Hxcd I'uli' as to Iniiftli of tini(> for, 
 not iinj)utt'(l to person ij^norant of facts, 
 TruHtoL' Limitations Act, how aft'octcd l)y, 07 
 un.U'r W k 4 Win. IV., cap. 27; 02, 170 
 H.S.O. (1807) cap. 120, sec. m\ 17(5 
 
 Lands 
 
 actions to recover, 7, ()4, 82, 8:i 
 express trusts of, 7, 07 
 future interests in, 82, 8;i 
 improvements on by trustee, 108 (note) 
 limitation, when sold for value, 7, 175 
 moneys ch'vged upon, 57, 178, 175 
 niortgatre on, mone3^s secured by, 57 
 purchaser of for value protected, 7, 175 
 sale of, special directions for, 100 
 
 to purchaser for value, 7, 175 
 trustee holdinfj, duties of, 108 
 trusts of, 7, 108, 175 
 
 Lapse of Time 
 
 See L.vcHEs, Statutes of Limitation, Cestui que 
 TRUST, Trustee, and Trustee Limitations 
 Act. 
 
 Law 
 
 presumption as to knowledge of, 103 
 of England in Manitoba, 108 
 in Ontario, 105, 100 
 
 Leg-acy 
 
 charged on land, 174-175 
 
 Legislation 
 
 imperfect, how treated by Courts, 110 
 
 Lex Fori, 98, 169 
 
IXDEX. 
 
 I!l!) 
 
 Liabilities 
 
 iiujiierouH nrid vjiricd, |()() 
 when fiduciary, 5 
 
 Life-Tenant 
 
 Sec l^)S,SK.SSION, TVTEFIKSTS IV. 
 
 ri<,dit of. to iueomc, when ham-d, 51), 75, 7i), H4-!>| 
 oMure.s to truHtou's boni'tit, «i) 
 
 Limitations 
 
 (See Statute of I^imitatioxs.) 
 di,stii)(,nii,sh(>d from laclicH and acquie.scence, 9 
 
 Liquidators 
 
 not within Trusttie LimitationH Act, 16 
 Loss 
 
 upon investment. See Investment. 
 
 time does not run from, 41, (50, (58, 75, 80, 81 
 
 unexplained, ascribed to netrli^ronce of trustee, 1 02 
 Manitoba 
 
 Englisii law adopted in, 168 
 
 Married Women 
 
 anticipation, restraint on, 85, 87 
 
 power of Court over, 86 
 
 cestuis que. triisffnt, 80, 86 
 
 defendants, 8(5 
 
 husband trustee of separate estate taken from, 89,40,84 
 
 interest in possession of, 84, 85, 89 
 
 policy of Trustee Limitations Act as to, 85 
 
 Property Acts, 85, 8(5 
 
 separate estate only affected by Statute, 86, 87 
 
 position of, 86 
 
 powers as to, 85 
 
 Maxims 
 
 ipnomntia Icrjis hand excitsat, 108 
 interest reipuMiccc, lU sit finis Utiiim, 2 
 nemo tenet iir ad inutilia, 144 
 
 vigilantihm, non dormientibns, (vquitas subrenit 98 
 May 
 
 means " shall," 144, 145 
 
 Mercantile Amendment Act, 35, 36, 170 
 
200 
 
 INDEX. 
 
 Mergrer 
 
 cxecMitor becomes trustee wlien, 9G, IIH, 120 
 
 Misrepresentation 
 
 See Fl{AUD. 
 
 Mistake 
 
 ot tact by cq.t. See Laches. 
 
 by trustee, 108 
 of law by trustee, 108, 18(), 137 
 
 Money 
 
 action to recover, 03, 04 
 
 lueaniiio- of, 63, (U 
 aoent, placed in tbe hands of, 41, 106, 10!), 155, 156 
 appropriated to another account, 44 
 eharoed on land (see Lands, Mohtoaue), 173-174 
 converted to use of trustee, 43, 44 
 deposited in bank, 109, 156 
 embezzled by employee, 43 
 had and received, action of debt for, 67. 69, .S7 
 
 limitation on, ()7, 69 
 
 meaning of, 68 
 improvements, spendino; on, 108 (note) 
 " other property, ' meanin;^' of, 64 
 "parted with," 72, 76, 77 
 payment into Court. See Court. 
 receipt of by fiduciary, effect of, 5 
 retained, see " Still Retained." 
 ri^'ht to recover, 51 
 
 Mortgage 
 
 amount a trustee may advance on, 110, 14(5, 162 
 cov^enant in, limitation to action on, 57, 169 
 improper investment upon, 129, 131, 146 
 investment of trustees, 110, 160, 162 
 payment of interest on, effect of, 59 
 property which a trustee may lend on, 110, 14(5 
 personal remedy upon, when barred, 57, 169 
 second, not a trustee's investment, 110, 146 
 sold by truste:' to the trust estate, 43 
 surplus proceeds on sale luider, trust of, 23 
 
INDEX. 0()| 
 
 Negrligrence 
 
 in exercise of discretion, 1 JO (note) 
 
 losses nnexplnine(l ascribed to, 102 
 
 priiitd fdcie test of, 120, 13f), 140 
 
 trustee, of, never excused. 128, 129, 130 
 New Brunswick 
 
 Teeliiiieal Breaches Act in, ll.S, 158 
 Non Compos Mentis 
 
 See DjSAIilLITIES. 
 
 Ontario 
 
 Eno-Iisli law adopted in, 105, lOw 
 Technical Breaches Act in, 158 
 Trustee Limitations Act in, 150 
 Orders Made, 70, 77, ho, 17G-178 
 
 Orig-inating" Summons, 113 
 
 "Ougrht fairly to be excused," 141, 142 
 
 Parol Acknowledgment 
 
 (See ACKNOWLEDGMEXT), 87, l(j(), 178 
 
 Partners 
 
 acknowledo-niont by one of, see Agext. 
 innocent, liability of, 88 
 liability of one for fraud of other, 88 
 .solicitors, not within scope of implied autiiority of, to 
 become constructive trustees, 88 
 ''Party or Privy" 
 See Fraud. 
 
 Part Payment 
 
 See ACKXOWLEDGMEXT. 
 agent by or to, 87 
 co-trustees, by one, 87 
 identity of debt, 87 
 interest when, 50 
 money, need not be in, 87 
 re(piisites of to take ca.-e out of Statute, 87 
 Payment 
 
 default in, not cause of action on breach, (38. 75, 7!> 
 in breach of trust, effect of, 75 
 
 i 
 
202 
 
 INDEX. 
 
 Payment into Court 
 
 barred life tenant, effect on rights of, 80, 90 
 
 trustee entitled to interest out of Court, 89 
 
 Period of Limitation 
 
 See Statutes of Limitation and Specialty Debts. 
 
 Pleading- 
 effect of, 69 
 
 of Trustee Limitations Act necessary, 98 
 of Technical Breaches Act, unnecessary, 121 
 
 Personal Liability 
 
 of trustees, 18, 89 et seq., 64, 145 
 
 Personal Representative 
 
 See ExECUTOK. 
 
 of intestate, action against to recover personal 
 estate, 172 
 
 Personalty 
 
 trusts of not within 3 & 4 W. IV^, cap. 27 ; 7 
 
 Possession, Interests in 
 
 all causes of action of holder of, barred when, 78, 81, 
 
 82, 90, 91 
 entire remedy barred with right as to corpus, 59, 61, 
 
 62, 78, 79, 82, 90 
 future interests of holder of, 88, 178, 174 
 married women, 84, 85, 87 
 
 j)ersori entitled to, out of possession, 82, 88, 173, 174 
 periodical payments in respect of, fresh causes of 
 action, 75, 81, 82 
 
 when not, 67, 78, 79 
 time runs against from breach, 59, 61, 78, 85 
 
 when reversionary interests become, 75, 81, 83 
 when barred, not helped by recovery of reversioner, 
 79, 89, 91 
 
 right to income vests in trustee, 90 
 
 Power 
 
 mistaken assumption of, 127, 136, 137 
 unusual of trustee, 112 
 
INDEX. 
 
 203 
 
 Professional Assistance 
 
 effect of securin^r or omitting to secure, 138, 139 
 erroneous advice acted on, 139 
 proper must be employed, 100, 131, 139 
 when not necessary to employ, 136, 138, 144 
 when trustee should seek, 106, 137, 139, 144 
 Property 
 
 action to recover, see Money. 
 
 deposit of, with fiduciary agent an express trust, 5 
 
 provisions for security of, 7 
 
 Promise 
 
 to pay, implication of, 37 
 
 Prudence 
 
 ordinary, required of trustee, 103, 105, 127 
 lack of not excused, 105, 127 
 Purchaser for Value, 7, 97, 175 
 Quasi Trustees, 14, 120 
 
 Realty 
 
 See Land, 
 
 Reasonable 
 
 conduct of trustee not formerly a justification, 100 
 
 protects him from liability for loss, 135 
 coi'pus, to preserve, is, 140 
 
 criterion of what is, in trustee's conduct, 124, 139 
 directions of Court, when it is, to seek, 142-144 
 dishonest trustee generally not, 125 
 honest trustee is not necessarily, 102 
 imprudent trustee is not, 102, 131 
 meaning of, not judicially defined, 126 
 no change as to what is, 138 
 onus on trustee to show conduct to be, 117 
 prima facie test of what is not, 120, 139, 140 
 technical mistakes may now be excused if, 103, 1 32, 133 
 to consult interests of trust as a whole, 140 
 trustee when prima facie not, 120, 139 
 what breaches of trust are, 103 
 
 are not, 129, 130, 131 
 when trustee is, principal subject of casos, 122 
 
204 
 
 iM)i:.\. 
 
 "Reasonably," I'iOiio 
 
 us trustee, is iiiejuit by, 1 2.S, l.S.S 
 
 enterion of, 120, \:vS 
 
 each case (lejxaids on its own circnnistances, 12() 
 
 o'oneral rule deduced from authorities, 127, 128 
 
 illustrated, 128-140 
 
 second part of illustrated, 184 
 not yet defined, 1 2(i 
 
 " out^Iit fairly to bo excused," how affected by, 141 
 prim(( facie standard, 140 
 solicitor or a^eiit, trustee confidin<;- too much in does 
 
 not act, 120, 180, 181 
 trustee, doine- what is best for trust as a whole, acts, 140 
 
 who has acted, should be relieved, 141 
 
 Receipt 
 
 (jf trust estate by beneficiary, 1 1 1 
 
 by stran<;'er, 112 
 res})onsibi]it\' of trustee for, b\' co-trustee or ao;ent- 
 8.'), 41, 10(), l()7,'lO!» 
 
 Receivers 
 
 not within Tiustee [imitations Act, 1(5 
 
 Recognizance 
 
 See Si'i:<iAi;rv Dkhts. 
 
 Recovery 
 
 ability of trustee to make. Sec " 8tiij. Rf:TAiNEi)," 
 " of money or other property," action for, G8 
 
 Release 
 
 ])resumption of from delay, 2 
 
 Relief 
 
 how far discretionary with the Court, 14o 
 partial when givoii, 131, 14o 
 
 Remainders 
 
 See RevkrsioNAUV InTKHESTS. 
 
 Rents 
 
 limitations as to recover}^ of, 57, 178, 174 
 
 Representative 
 
 Personal. (See ExEorToiO, '^8 
 
IXJ)EX. 
 
 20; 
 
 Retrospective 
 
 • 'tfcct oi' Stati Ics, !).'). 121, 150 
 Return to Jurisdiction 
 
 Sl'C DlS.'U'.IIJTlKS. 
 
 Reversionary Interests, ^' 
 
 ucenuil of cause ol" a. ..,.11 I'oi-, 75, S|-n:{ 
 coupled witli iutei-cst in possession, .S:; 
 
 • lererred annuitant, 70, 7'). SI, S,:] 
 in lands, rents, \'c., I7.S, 174 
 nian-ied women, of, S7 
 
 payment into Court foi- security of. !»(» 
 
 l)ersons lia\ in^', with intcrch't in possession as well. ,s;3 
 
 pei-sons holdiiii.' may sue ujxmi breach, 75, N|. ,s:5 
 
 not l)oun<l to do so. 75, S], Hii. 17:}, 174 
 protected undei- 1'rustee Limitations Act, 5.S 5!) ,si 
 
 .S2. -S!), 151, 177- ISO 
 i'"covery u])on does not help harred lilV tenant 7!l S<» 
 
 1)1,151, 177 ^?/ .sv'7. 
 when time bc^j^ins to run ao-ainst. 75, S\-s:] 
 Right 
 
 accrual of, sec Cacse of Action. 
 
 Sale by trustee 
 
 • li'lay in etiectino', 1()() 
 in breach of trust, l-Sd, l;i7 
 special direction for, 108 
 without power, l.*}7 
 
 Scire Facias 
 
 See Sl'K(I.\LTV J)eI5T.S. 
 
 Securities 
 
 proper foi' Trustee. See I.WEst.mexi'. 
 
 Signature 
 
 See ACK\()\VEEl)<;.Mi:\T. 
 
 Simple Contract Debt 
 
 See Bhe.Vcji of 'I'iust. 
 
 Six Years 
 
 See Pei{Ioj) of Li.mjt.\tio.\. 
 
20(1 
 
 i\i)f:\. 
 
 Solicitor 
 
 advice of t\ i)i'ott'ction, 137 
 
 eouHtnictivc tnistco, not within scope of partnership 
 
 of. to l)e, 83 
 eniploynient of, by trustee authorized by Statute, 150 
 fraud of. imputable to trustee, 28-31 
 misrepresentations })y, 27-30 
 over contidcncc of trustee in, 121), 130. 131 
 partnei's. liiddlity of, 33 
 
 trustee nuist not rely too implicitly upon, 27-30, 
 120-131 
 
 must require, to account promptly, 100, 150 
 
 not privy to fraud of, 24 
 
 Special Directions 
 
 construction of, 110 (note), il2 
 
 departure l)y trustee from, 102, lOS, 110, 1 12, 130 
 
 ettect of. intrust instrument, 108, 110, 112, 13() 
 
 for sale, 10!> 
 
 inve.stments, as to, 110 
 
 obedience to, 102. 108, 1 10, 112,130 
 
 Special Powers, 1 1 i 
 Special Restrictions, 112 
 
 Specialty Debts 
 
 acknowledo-ment of, 38, 5)2, 171, 172 
 clause A., are they within, 51, 50, 07 
 disabilities, 170 
 express trusts upon, 54, 07 
 how created. 54 
 
 limitations applicable to, 41, 50, 56, 57, 169 
 mortgage covenants, 57, 109 
 none upon constructive trusts, 67 
 not within Lord Tenterden's Act, 38 
 period of limitation upon, 57 
 statutes governing, 57, 169 
 trustees, when liable as upon, 54, 67 
 4 when they arise upon breach of trust, 54, 67 
 
 4 
 
 Stale Demands 
 
 See Laches. 
 
IN'DKX. 
 
 207 
 
 Statutes 
 
 liKITISIf CoLfMIMA : 
 
 KKW.r. (1,S!I7), cap. 7:j; ir,r, 
 li.S.RC. ()N!>7). cap. 128; :^(J. I 70, 171, I 72, I 7(i 
 K.S.K(. (lS07j, cup. 187; 8. 110, 152, 157, 15!), 100 
 l.MI'EIMAL : 
 
 21 James L, cap. 10 ; '}0, 85, !(>;], I(i4, 105, l(i(i, |(i8, 10!) 
 y Geo. 1\., cap. 14; 85, 87, 02 
 
 11 (Jeo. IV. ^ 1 Will. IV., cap 40; 7 
 
 8 & 4 Will IV., cap. 27; 7, f)7, 178, 174. 175, 17(i 
 
 eap., 42; 155, 100, 171 
 10&20 Vict, cap. 07; 85, !)4, 171 
 
 22 & 28 Vict, cap. 85 ; 114. 154,158,150 
 28 \: 24 Vict., cap 88; HiO 
 
 80 vV 87 \'ict, cap. (jO ; 8, 152 
 
 87 ^: 88 \'ict, caj). 57; 7, 178, 174, 175 
 
 II f ^:. v'V'^^'- ^''' '^^' ' ^' '-' '•^' ^^^' i^<'> '*'^' i<^-j 
 
 55 & 50 Vict., cap. 58 ; 85, 1 1 1 
 50 & 57 Vict, cap (i8 ; 80 
 
 50 & m Viet., cap. 85; 85, 1 14, 1 15, 118, 120, 158 
 Maxitoi'.a : 
 
 K.S. Man. (18!) I), cap. 8() ; 8(), 1()8, 172 
 R.S. Man. ( 18!) 1 ), cap. 8!) ; 1 75 
 
 RS. Man. (1801), cap. 140; 1 10, 155, 157, 158, 15!), 100 
 
 57 Vict, cap. Ki ; 170 
 
 58 & 50 Vict., cap. 0; 8, 152 
 New BiiL'NswK'K : 
 
 C.S.N. B. (1877), cap. 84; 170 
 C.8.N.B. (1877), cap. 85; 8(i, 108, 100, 172 
 58 Vict, cap. 4; 148, 150 
 61 Vict, cap. 20; 85, 115, 118, 120, 158 
 Nova Scx/jta : 
 
 47 Vict., cap. 25 ; 8 
 
 li.8.N.8. (1884), cap. 104; 152 
 
 R.S.N.S. (1884), cap. 112; 88, 107, 108. 170 171 
 
 172, 170 
 R.S.N.S. (1884), cap. 118; 155 
 49 Vict, cap. 87 ; 175 
 51 Vict, cap. 11 ; 18, 05, 110. 151, 157, 150, 160 
 
•20S 
 
 INDKX. 
 
 Statutes - 
 
 N(>\A Scotia {('nullinirJ) -. 
 
 r)'2 Vict., cjip. IS; 10, II, 12, I, 'J, 17, !>;'>. IMI. 107, I 10 
 
 I i<s, |-)2, ir,o, hi;] 
 55 Vict, cap. 52 : KiO 
 
 5<) Vict., c.'i]). <S : I (10 
 02 Vict., cap. :U: KiO 
 
 On'TAHK) : 
 
 44 Vict., cap. 5 ; S 
 54 Vict., cai!. ID: 10, 
 K.S.O. (l.S!)7), cap 51 ; 
 
 7,21 
 
 s 
 
 52 
 
 K.S.O. (I.S!»7), cap. 72; :W, 57, !)4. I(i!>. 170. 171. 172 
 
 K.S.O (IS!)7), cap. Ill; 1()5 
 
 K.S.O. (I.S!>7), cap. I2!»: 10, II. 12. I:]. 17,88,48 (15, 
 
 71, SS, !)5, !)(), I0(), 107, 114, I IS, 120. 150. 
 
 151, 152, 154, 155, ISO, 157, 15S, 15!) 
 R.S.O. (1S!>7), cap. 180: S5. 110. 111. I5!», l(K), hil. 
 
 I 02, 108 
 R.S.O. (1S!)7), caj). 188: 7, S, SO, S2, 07, 1 78 W 6Y'ry. 
 H.S.O. (IS!)7), cap. 14(); 8(J, 02, Ui«). I«i7. KiS 
 R.S.O. (1S!)7), caj). 108; SO 
 02 Vict., cap. 15; S5. 115, US, 158 
 
 Statutes of Limitation 108 et seq. 
 
 actioiLs aii;aiiist trustees, now sul)ject to, 49, 70-77 
 
 to recover per.soiuil estate of intestate, 172 
 ackno\vle(lo-nu'nts, .see that title 
 applied in K(iuity, by analotry, 1, 2, 04, 00 
 
 to e({uitable debts, S, 40 
 arrears of income, 72 
 assumed to apply to Clause A., 48 
 breaches of trust formerly not within, 2, 8, 05, 73 
 cases not covered by any, within Clause B., 48-()4 
 cause of action unknown to plaiutiti' barred by, SO 
 concealed fraud, etlecl of, 25, 27, 05, 174 
 constructive trusts, how formerly applied to, 8, (5, 55, 
 
 04, GO 
 contribution, actions for, Avithin, 50 
 Court otlicers not now protected by, 10 
 covenant in mortgage, when barred, 57, Ki!) 
 
iNr)i:N. 
 
 Statutes of Limita-ion CouthiuaL 
 
 im 
 
 • '••(rt„rs ionnc.-ly iiol nit 1, in, K; 4.-, 
 •Iisal.ilitics (s.... (hut title, I (J-,), 170 
 <'X»'Clit()rs entitled to heiictit ol', 7. {Mi 
 
 special provisions fop, i;)7" 
 existino- defences un.ler preservo.l to trustees HO 1 ij 
 express trusts lonnerly excluded from, .'U -S 04 5-> 
 
 iHnvcovere.1 ),v, 10, (J4 ' ' 
 
 |j|M.H-anc;M>f ri<^^ 
 
 intestates personal estate, action against adn.ini^ira- 
 tor to recover lin)ited, 17-' 
 
 ind.'.niuty, action for, witl.in, 50 
 
 •'nines (Knio), Statute of. KKMoj) 
 
 knowled^y of nVl.t to sue not necessary to har SO 
 
 nn(ls, actions to recover, 7, (i4, -S2. I7:i .t <.<, ' 
 Icx^toi'i, part of, !)8 ' '' 
 
 married women. .S4, 85, 8() 
 
 defendants, <S() 
 moiK'vs cliarovd „„ k,,,,]^ ^7- 
 
 i"orto-aov covenants, when bar.v.l. 57 KJO 
 partners, hou- atfected I,y fi-aud of on,> ;i.S 
 perH3d o. limit^Ui,.^^^ 
 
 specialty debts for, 50, 57, l(]f) 
 torts of deceased, one year, !)7 155 
 plea(hno' of necessary, OS 
 Real Property, 7, 04, 82, 178 
 .s(!t-otf, claims by way of, within, l(i7 
 torts ot .leceased testator or intestate, 00 97 
 trustees, now by Statute appbVd to, 10, !)S 150 
 vvi.en tune be^nns to run, 5!), (JO, OS, 00 70 SI 
 * 'Still Retained," ;{9, 150 
 
 application of exception, 58-04 98 
 
 by ajrent of trustee, 89, 41 4-^ ' 
 
 exception ext^Kls only to pr.^erty actually in hand, 
 
 not applicable when, 40, 42 75 
 liusband of married woman, by 80 84 
 nieanincr of, at date of writ, 80 '75 '08 
 moneys misappropriated by solicitor are not -'4 
 
 part only retained, ett'ect of, 40 
 
•210 
 
 i\i)i:x. 
 
 Sureties 
 
 f(intril)uti()n niul liniitatioii lift ween, (il 
 
 Technical Breaches of Trust Act, 1 1 "», l"i:5 
 a bciu'ticial ciiactiiicnt, I I.') 
 all tnistfcs fovcrcd hy, J2I 
 altc'iatioii iiiadc in law by, TOO. 147 
 autlioritit's upon, few as yet, I 17 
 lucacli ol" trust, l)asis of, 1 IS 
 
 what witliiii, 100, 127, I 2S, 147 
 cases fovci'cd by not \t'i-\- niinicioiis, 1 hi. 147 
 consti'Mctioii of to !)»• liberal. Mi! 
 <lcfii)ii;ioM clause, I ')."} 
 
 none in ( )ntai'io oi- New lirunswick, I IS 
 iliscretion of Coiu-t in aduiinistei-in^i', 14.') 
 evidence necessary to enable Court to a))j)ly. I 17 
 executors within,' IIS, I 1!). |:}|. i:):i 
 fiaud entirely e.\clu<led by, 104 
 ^reneral etlect of, 100. 114, 1 1(1, 147 
 e'uidc for ap])licati()n of, l'}5 
 ini]irud(^nce not excused under, 102, 104, <2S, 125), 
 
 IMO, i.'n 
 
 inadvertent technical bn>aches, lO.S, 104, 127, I 2S, i:}:{, 
 
 i:i4, i:i(), li7 
 
 " in law," meaning- of these words, I I!) 
 
 is mandatory, not permissive merely, 144, 145 
 
 modified in Ontario and New Brunswick, 100, 14(1, 
 
 147, I5:i 
 nej^lie'ence not excused by, 104, 12S-1.S2 
 New Brunswick, in, 100,"^ 147, 15;j 
 Nova Scotia, how far needed in, 1 4(i 
 Ontario, in, 100, 115, 147, 15:i, 154 
 " ouf^ht fairly to be excused," 141 
 partial relief when t^iven, 181, 145 
 personal liability of trusttse only affected by, 145 
 pleaded, need not be, 121 
 proceeding's pendintj, affected by, 121 
 reasonable, what is not (see Reasoxamle and Reasox- 
 
 ahly), 120, 128, K32 
 relief proportioned to deserts of trustee, 14b 
 retrospective, 121 
 
IN'DKX 
 
 21 J 
 
 Technical Breaches of Trust Act ( 'onth,ncd. 
 
 t<-cl.incall,n.acl....s,.x(.u.s,.,l, lO.S, 105 127 \\V.\ I 'U li- 
 not excused I.S7-|,S!) ' ' 
 
 trustees eiititle.1 to pn.t.rtion of. M", 
 I'OW lielj;,..! },y, 100, I.S.S^ |;{4 ,4. 
 who are within, IIS, 1 |!), io(i 
 
 " wholly or partly," Uo 
 
 Tenant for Life 
 
 >^<'e {'(.SSKSSIOX, IntkKKSTS |\ 
 
 Tenterden's (Lord) Act, ;{^-;iH, uw; 
 Time 
 
 Torts 
 
 action a^rainst executor, lin.itation on, !>?, 1.-,.-, 
 
 Trustee Limitations Act, w ct scq., i,X). loi 
 u complete har, (i| 
 
 accoum, action for against trustee, M-ithin, 70 V,^ 
 ctiectol, HI, 7;j, 74, 7(), 77 - ' • ''^ 
 
 accrual of cause of action not affVcte,] })v 58 
 acknowledo-nients unrlei- effect i^^ 1. \ 
 
 MKXT), 57, J)2 ' ^ ^^'''-^•^>^VLEDG- 
 
 ac.,uiescener, defence ol unaffected bv '»7 
 
 -''^ " t^Lr 4!;;';;;""^^ ^'^' ^-"'^^'' - ^^-H of 
 
 miist be bec^u.1 after Statute operative ')5 
 all trusts covered by. l.'i, K], 50, 05, 75 50 
 bars remedy only, 98 ' 
 
 breach of trust, foundation of, (J4 (JO «)7 
 
 cause of action, what is, under, 41, '49,58 (J| (;o fiO 74 
 clumsily draM-n, 48, (18, 87 98 ' ' 
 
 commencement of, 95, 151' 
 
 construction of, 7.S, 98 
 
 continuincr duty theory fil 
 
 conversion by trustee, an exception, 43 98 
 
 Court ofhcers not within 1() 
 
 'lefondant to be treated as if not a trustee 50 79 
 
 directors within, 14, 15, 45, 47, 75 ' 
 
212 
 
 IN'DEX, 
 
 Trustee Limitations kci— Con tin tied. 
 
 ilisiil)iliti('H undtT, cH'cct ol", (sec DisAitiUTiKs). 57, 
 
 m, 17S, I7!> 
 cxccptioiiH IVoni. Set' Fi{.\ri), Still lUrr\i\i:i), .md 
 
 ('(>NVi:i{si.()\ hv TitrsTi;!;. 
 t'xistiiin- (IcrciK'cs pn'scrvcd Uy, !)(i, J.')| 
 iViiiKl, ail rx('('|)ti(>ii. 2.'}, !)S 
 
 of anient, il' iMcrcly iiii])iitiil)K' to tnistcf.cH'cct ()l',24 
 
 ol' one ti'iistt'c docs not exclude iiinoeent co- 
 trustee, Jio 
 
 whether coiiceah'd or o[)en, iniumtorijil, 25 
 honest trustei' j)rotecte(l by, ID 
 ^^eneral eti'ect of, I :}. (i!>, 'i ,, !)S 
 in force in JMi^land, ( )utario and Xoxa Scotia, 10, 
 
 150, 151 
 income, arrears of, 72, (Si 
 interpretation chiuse, l.'i, 17,!>5, 150 
 Jud<;nient un(h'r, forms of, 177-liSO 
 knowledge of cfuse of action not ess( utial to bar, 80 
 hiclies, defence of, still available, !)7 
 liouidatoi's not within, l(i 
 married W(Mnen, 84 et .sw/. 
 
 policy of, as to, 85, 8(5 
 Nova Scotia, in, 151 
 Ontario, in, 1 1 ^'/ xi'ij., 150 
 period of limitation under, 54-57, ()7, (jit, 72 
 I)leadini;, {)8 
 
 prior l)reaches covered by, !>5 
 
 property "still retaine*!," eti'ect of, 39 ai seq., ()4 08 
 <iuasl trustees within, 13, 15, 45, 47, (i5 
 receivers not within, Ki 
 remedy oi\lv l)arred bv, !>8 
 retrospective operation of, 05, 150 
 reversionary interests, position of, 58, 5!), 81, 83, 8!), 
 
 17!), 180 
 scope of the Statute, 13, !)7, !)8 
 when Statute became operative, 10, 05, IGl 
 
 time begins to run under, (il, GO, 70, 81-83 
 where in force, 10, 05 
 
 wilful breach of trust not excluded unless fraudu- 
 lent, 18 
 

 IXDKX. 
 
 213 
 
 Trustees 
 
 action a«^niiist in (^)uccii'.s Bcncli, (iM 
 
 iU'tion of iimHiiit in (-(iiiity ao-ainst. 4!), (JH, 70, VT)-?? 
 
 to ivcovcr money or other property From, OM 
 u<:en(, employment ol' })y, 10;"), l()(i, 155 
 
 liaud of, imi)utal)le to, 24, 2"), 2(j-.'K), '.i2 
 
 trustee not {jrivy to, 24 
 responsibility for, 10(5, 107, loo, \ni> 
 all e()V(re(| by Teehnieal Hreacbes Act, 121, I5.S 
 
 Trustee Limitations Act, l,*}, 10, 55, tiS. 05, 150 
 appropiiatnii; trust moneys to anotber account 44 
 assio-nee of, ,' 7 
 
 bank, (]epositin«r moneys in, 10!> 
 by imj)Hcation, 5, 7 
 
 care and solicitude recpiired of, 101, 127 
 cestui qtir trnsf may rely upon discharcre of duty by 27 
 concealment of fraud by, 22 ' 
 
 conduct, rule of for, 101, 102 
 confidence reposed in, personal, 105 
 confidinc: too much in agent or solicitor, 27-30 100 
 
 10!), 120-131 
 constructive, directors are, 14 
 present position of, 10, 00 
 
 solicitors, not witiiin scope of partnership to be, 33 
 wlio are, 0, 33 
 continuincr duty of, effect of, oO 
 
 convei tincT trust property to tlieir own use. See Con- 
 version BY Trustee. 
 co-trustees, see Co-Trustees. 
 debtors of c.q.t. after breach, 51-54, 69, 73 
 
 in what sense not, 52 
 debts, bound to collect, 102, 108 
 
 compromifiing, 108 (note), 157 
 defences available to, 2, 5, 96, lol • 
 directions of Court for, 142-144, 159 
 discretion of, limited, 102, 105, 107, 108, 128 
 
 test of negligence in exercise of, 110 (note) 
 dishonest, not protected, 19, 104, 125 
 disobeying express directions, 17, 108, 112 
 duties paramount, 105 
 entitled to relief under Technical Breaches Act 145 
 
214 
 
 INDEX. 
 
 Trustees — Cou tinned. 
 
 excepted fi'oiii Tnistoe Ijiiiiitatioiis Act, who ai'c, 1!) 
 
 executor of, 17 
 
 executor-H when they are, (>, 118-120 
 
 express, directors may be, 14 
 
 executors arc; iinf,. 7 
 
 formerly not protected l)y lapse of time. .'^, S, 1 52 
 
 present position of, 1(3 
 
 specialty debts of, 54, 67 
 
 who are, 4, 5, 14 
 following; regular course of business, 106 
 fraudulent, not protected, 19, 104, 122 
 full explanations required of, 102, 108 
 gettint^ in trust e-state, 107, 108 
 
 <;ratui tons bailees, theoretically in similar position to, 104 
 harsh treatment of, in equity, 90, 104 
 holdinc^ land, duties of, 108 
 honest, now protected, 19, 99, 104 
 husbands, of separate estate taken from wives, 40, 84 
 ignorant of law% 108 
 
 trust, 108 
 imprudent, not excused, 102-105, 128, 129. 131 
 income entitled to, during life of barred life-tenant, 
 
 90, 178, 180 
 indemnity from c.q.t., Avhen entitled to. 118, 156, 179 
 indifferent, not honest, 125, 128, 180 
 
 not reasonable, 129, 180 
 innocent, treated with severity, 104, 118 
 
 excuse for, 118 
 insolvent, rights of c.q.t. against, 52, 58 
 investment by, see Investpjemts. 
 joint, 18, 150 
 judgment, mistake of, not responsible for, 127, 188 
 
 of, c.q.t. entitled to benetit of, 105, 106 
 laches and acquiescence, defences for, 2, 8, 97, 176 
 law, what presumed to know, 108 
 liabilities of, difficult to define, 100, 101 
 losses by, unexplained, attributed to negligence, 102 
 misrepresentations by, 27-80, 48 
 mode of appointment of, immaterial, 121 
 must be pn,ident and obey rules of Ecjuity, 102 
 
INDEX. 
 
 215 
 
 Trustees -ConlinueU. 
 
 neoligence not excusable in, 128 
 
 prima facie test of, 110 (note), 120, V,V.) 
 unexplained losses ascribed to, 102 
 not sureties or insurers, 108 
 
 not always consistently treated, lO.S, 146 
 onus upon, to show conduct honest and reasonable, 1 1 7 
 payment by, of interest, 58, 80 (note) 
 personal liability of, depends on breach of duty, lO.S 
 not covered by 3 & 4 Will. IV., cap. 27 ;"7 
 only, affected by Relief Acts, 89 et seq., 1)4, 145 
 persons claiminjLj through, who are, 17 
 power, mistaken assumption of, by, 127 
 privy to fraud, when, 24, 25 
 proceeding after ol^Jection by c.q.t., 141 
 prudence of, often unavailing, f)f) 
 required of, 101-4, 105, 127 
 want of, not excused, 127 
 <{ualifications of, 105 
 quasi, 14, 120 
 realty, duties as to, 108 
 reasonable, see Reasonahle. 
 relief of, under Technical Bread s Act, 100-147 
 retaining trust funds, see " Still Retained." 
 rule of conduct for, general, 101, 102 
 Statute, neglect of precautions prescribed bv 120 
 189, 140 ^' ' 
 
 sureties as, 40, 44 
 
 to be treated as if not trustees, 50, 54, 57, 59 
 transgressing rules of equity, 102 
 treatment of, formerly harsh, 9f), 104, 118 
 
 in Nova Scotia, 14{) 
 trust property in hands of, owned by c.o ^ 58 
 who are, in equity, 5, 7, 18, 14, 89 
 
 within Technical Breaches Act, 118, 150, 151 
 Trust Estate 
 
 agent, retained by, 89, 41 
 care of, required, 101, 109 
 cestui que trust owner of, 58 
 custody of, 109 
 
 
2 Hi iM)i:x. 
 
 Trust Estate— 0^////////^^/. 
 
 • lislriWiitioii of, III, 112 
 
 l'()ll()\viii<;, n(it ati'cctcij by llclid' Acts, .'}!!, (J4, 145 
 
 t^cttino- in, duty oi" tnistcc, III, 112 
 
 improper inveHtiiicnts of, 107, l()<S. 110, III, l'i7 
 
 iiicoinc I'roiii, i^ocs to ti'ustec wlicn lil't' - tenant 
 
 barred, !M) 
 interest </l' r.</./. may l)e imjxjunde*! to indemnify 
 
 trustee, when, I 1.'}, ]')('} 
 investment of, a duty, I0!> 
 ladies and a('(|uieseenee not defences i.i actions to 
 
 recover in sjx-cie, .'}, {>7 
 no limitation to action to i-ecovei- in s])ecie, .'{, ()4 
 
 exce[)tion, ])urcliaser foi- value, 7, !)7, 175 
 owned by r.r/./., 5.'i 
 
 p\n-cliaser for viilue protected, 7, J>7, 175 
 retained, see "StilI- Hkt.MXKD.'' 
 reversion in, see Hi:vi:i{si()\Ai{V Intkuksts. 
 
 Trusts 
 
 all covered by 'recbnical Jireaclies Act, 121 
 
 Trustee Limitations Act, 18, 1(5, 55, 05, 150 
 breach of. See Breach or Tursr. 
 constructive, how created, 
 
 lapse of time formerly a bar unrler, 8, 55, 04, 00 
 
 not within claus(! A., 54, 55 
 
 3 & 4 Will. IV., cap. 27 : 7 
 
 specialty debts do not arise out of, 07 
 
 Statutes of Limitation applie(l by analogy to, 
 3, 55, 04 
 
 what ar(! deemed, 3, (i 
 
 within clause B., 55, 00 
 declared, () 
 
 deletjjation of, when justified, 85, 105 
 discretionary, may not be diiletjated, 38, 105 
 express, actions on, apparently within CUxuse B., 04 
 
 formerly not barred by lapse of time, 3, 8, ()4, 152 
 
 how afl'ected by 3 & 4 Wm. IV., cap. 27 ; 7 
 created, 
 
 not clearly dtitined, 4, 5 
 
 specialty debts luider, 54, GV 
 
 time runs in favour of purchaser for value, 7, 175 
 
INDKX. 
 
 implied, 5, (j, (Jo 
 
 incidental, duties us to, I 12 
 
 interest of, us a whole, must he ivirardiid, UO 
 
 li.'ihdities upon, ditficult to deHne, J 00, 101 
 
 made out hy cireumstanctiH, 6 
 
 must be eleurly mude out, 5 
 
 not (•o<,'ni/:t})le at law, 2, 11<) 
 
 ivsultin<r, () 
 
 within <'.\elusive jurisdietioii of eciuity, 2, 11!) 
 
 Ultra Vires 
 
 See Directors 
 
 Value 
 
 what proportion trustee should leiul, 110, 102 
 Wife 
 
 See Marriki) Women. 
 
 21