The Gazette 1975

BOOK REVIEWS

Pettit (Philip H.) — Equity and the Law of Trusts — Third Edition; Pp. cxxiii, 565. London: Butterworth, 1974; (limp) £6.20. The fact that in 8 years there have been three editions of this learned work speaks for itself. Professor Pettit extended the text of the first edition published in 1966, by 48 pages in the second edition in 1970 and by 75 pages in the present edition. The author has wisely omitted Mortgages and Restrictive Covenants as pertaining to Land Law, and Administration of Assets as pertaining to the Law of Succession. As a result he has been able to treat the law of Trusts and Trustees in great detail, devoting not less than 13 out of the 17 chapters in the book to this subject. Although the amount of research into English Reports has been most painstaking, it is quite surprising in mentioning the Commonwealth decisions, that the better known Irish cases such as "Knox — Barclay's Bank (Channel Islands) v. Revenue Commissioners" — (1963) IR, Saul's Trust—(1951) Ir. Jur. Rep., re Election —and in Re Elwood—Fitzpatrick v. Maynooth Mission, (1944) IR, re marshalling of charitable assets, and Walsh v. Walsh—(1942) re presumption of advance- ment, appear to have been omitted. Fortunately Mr. Wylie's forthcoming book on Irish Land Law will bring many of these Irish decisions to the notice of English practitioners. Apart from that, Professor Pettit has brought to our attention in the most enlightened way all the important decisions relating to the English Law of Trusts, and has made many appropriate citations. Chancery practitioners will benefit immensely, if they can master the contents of this book, which has been so well brought out. Thornton, C. E. and J. P. McBrien—Bui ding Society Law; Cases and Materials; Second Edition. London: Sweet & Maxwell, 1975; xx, 174p.; paperback, £2.50. It is well known that, apart, from Wurtzburg, there has not been any textbook of note on the intricate subject of Building Society Law, and the work of the two learned solicitor authors, published under the auspices of the Building Societies Institute, when it first appeared in 1970, received great commendation. Its excellence may be gauged by the fact that a second edition has been called for in this specialised subject, within 5 years. The first chapter headings are wisely split up according to subject, such as Objects, Member- ship, Rules, Directors, Meetings. The second chapter is financial, and deals with such matters as Invest- ments, Rights and Liability of Investors, Withdrawals, Interest, Pass Books and Deposits. The third chapter deals with mortgages and also inter alia with Advances by Societies, Capacity of the Borrower, Creation of a Mortgage, Rights of a mortgagee to enforce Mortgages, Interest, the Borrowers' Covenant, Consolidation and Mf.rchailing. Chapter 4 deals mainly with the Registrar of Friendly Societies, Amalgamations and Office Premises. In respect of every item mentioned, case law is quoted in support of particular propositions. In

relation to mortgages, such up to date cases as Lloyds Bank v. Marcan — (1973) l.W.L.R. — where the mortgagees were granted possession because the mortgagor granted a fraudulent lease to his wife with intent to defraud creditors, and Cushmere Brick Co. v. Mutual Finance Ltd. (1971) Ch.D. in which a mortgagee, in exercising a power of sale, had not taken reasonable precautions to ascertain the true value of the property, and was thus refused possession, are listed. Those who wish to learn their Building Society Law in a relatively simple way could not do better than study this book. Harris, J. W.—Variation of Trusts; xv, 118p. London: Sweet & Maxwell, 1975; £1.25. (Modern Legal Studies). The modern English legislation called the Variation of Trusts Act, 1958, owes its origins to the decision of the House of Lords in Chapman v. Chapman— (1954) A.C. which decided broadly that the Court had no inherent jurisdiction to override the Settlor's express intentions on behalf of persons under incapacity; it laid down that unless there were a genuine dispute amongst the Beneficiaries about their respective rights under the Settlement, the Court had no jurisdiction to agree to a compromise on behalf of persons under incapacity or unascertained beneficiaries. Up to then it had been thought that the "Compromise jurisdiction" was much wider. The English Law Reform Committee published a 6th Report in 1957 on "The Court's Power to sanction Variation of Trusts," and the proposals contained in the Report were largely adopted in the 1958 Act; there is now equivalent legislation in Scotland, Northern Ireland, Canada, Australia, and New Zealand. There are four distinct jurisdictions under the Act: (1) The Conversion Jurisdiction by which the Court may authorise a con- version from land to money or vice versa , in the case of trust property even though the trust confers no power of conversion upon the Trustees; (2) The Salvage or Emergency Jurisdiction recognises that the Court had inherent jurisdiction to authorise the Trustees to go beyond the administrative provisions of the settle- ment in exceptional cases where this was essential to preserve the trust; the leading case is In Re New— (1901) 2 Ch.D; (3) The Maintenance Jurisdiction by which the Court has inherent jurisdiction to authorise trustees to appropriate income which the settlor has directed to be accumulated or to be used for the payment of debts, and to use it instead for the main- tenance of beneficiaries who have not yet attained vested interests in the property; (4) The Compromise Jurisdiction previously explained. Section 57 of the English Trustee Act, 1925, by granting wide powers to the Court, ensured that trust property should be managed as advantageously as possible in the interest of the beneficirries, and is now largely superseeded by the 1958 Act. Dr. Harris, a learned solicitor, has succeeded admirably in summarising in a few succinct and clear words the most intricate decision of the 1958 Act—a remarkable feat considering the difficulties

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