into any agreement with them, simply directs certain payments to be made by them, if there comes to be a considerable surplus, it will go to the heirs-at-law of the truster.

(3.) If the trust purposes become impracticable, wholly or partially, a trust will result in favour of the truster's heirs-at-law.

In England, the leading case on this subject is Lord Eldon's celebrated judgment in the Attorney-General v. The Mayor of Bristol (2 Jacob and Walker, 294). Mr Lewin summarizes the results of that decision, as well as those preceding and following it, with admirable clearness, thus (Lewin, 124):-'It may be noticed, that settlements to charitable purposes are an exception from the law of resulting trusts; for, upon the construction of instruments of this kind, the Court has adopted the following rules:—(1.) Where a person makes a valid gift, whether by deed or will, and expresses a general intention of charity, but either particularizes no objects (Attorney-General v. Herrick, Amb. 712), or such as do not exhaust the proceeds (Attorney-General v. Haberdashers' Company, 4 B. C. C. 102; S. C. 2 Ves. Jun. 1; Attorney-General v. Minshull, 4 Ves. 11; Attorney-General v. Arnold, Shower's P. C. 22; Attorney-General v. Sparks, Amb. 201; and see Lord Eldon's observations in Attorney-General v. Mayor of Bristol, J. and W. 319), the Court will not suffer the property, in the first case, or the surplus, in the second, to result to the settlor or his representatives, but will take upon itself to execute the general intention, by declaring the particular purposes to which the fund shall be applied. (2.) Where a person settles lands, or the rents and profits of lands, to purposes which at the time exhaust the whole proceeds; but, in consequence of an increase in the value of the estate, an excess of income subsequently arises; the Court will order the surplus, instead of resulting, to be applied in the same or a similar manner with the original amount (Inhabitants of Eltham v. Warreyn, Duke 67; Sutton Colefield case, second resolution, Id. 68; Hynshaw v. Morpeth Corporation, Id. 69; Thetford School case, 8 Coke 130 b., Vol. iv., 401), (3.) But, even in the case of charity, if the settlor do not give the land, or the whole rents of the land, but, noticing the property to be of a certain value, appropriate part only to the charity, the residue will then, according to the circumstances of the case, either result to the heir-at-law (see Attorney-General v. Mayor of Bristol, 2 J. and W. 308), or belong to the donee of the property, subject to the charge, if the latter

be (as in the case of a charitable corporation) itself an object of charity.'

Mr Lewin then goes on to observe, that the law was settled at a time when the doctrine of resulting trusts was imperfectly understood; and that there is little doubt, were the subject still open, the Court would in the general case hold a trust to result.

THE APPELLATE JURISDICTION IN SCOTCH APPEALS.

Ir is certainly a great anomaly in the administration of justice, that the decision of Scotch appeals in the House of Lords, which is the final and sovereign Court of the realm, should be given by judges not familiar or acquainted with the law of the country which they are called on to administer, and to whom the law of that country is as a sealed book. And this anomaly is only surpassed by the still greater marvel, that Scotland should have allowed this state of things to remain so long without redress or remedy.

If the nobility and landed interests in Scotland knew how intimately the security of their titles and estates depended on their having a Scotch judge always sitting in the House of Lords, along with the English Law Lords, they would not rest until this serious defect in the appellate jurisdiction was rectified. Let us give point to this remark by an illustration. The Bargany cause involved vast interests; and it was brought three times before the House of Lords. Had the judges there understood the law of Scotland, there would have been but one appeal. There would have been no remit back to the Court in the first appeal; nor would the judgment pronounced by the House of Lords in the second appeal have been so defective and obscure, as only to give rise to a fresh litigation; for, observe that the sole contention in the third appeal, was as to what was the import and meaning of the judgment of the House of Lords in the second appeal. This pronouncing of a judgment, which only leads to further litigation, to ascertain what that judgment meant, amounts to an utter negation of the very object for which the appellate tribunal was instituted, namely, the finality and conclusiveness of the judgment. We might single out other cases where the same defects were exhibited, e.g., in the Roxburgh causes and the Queensberry cases; but we do not wish to multiply instances. The magnitude

of the interests that are involved in many appeals is exemplified in the history of the Douglas cause, the Bargany cause, the Roxburgh cause, and the Queensberry causes. In each of these, it is no exaggeration to say that property was involved to the value of half a million of money. Now, that one single mind, and that the mind of an English judge, should adjudicate on such pure questions of Scotch law, without any assistance from the Scotch bench, is one of the most extraordinary anomalies in the history of jurisprudence. It is a radical and fundamental defect in the constitution of the present appellate jurisdiction, that it wants the Scotch law element. It violates a fundamental and sacred principle in the constitution of all courts of law, namely, that the courts should be presided over by a judge versant, and capable of judging, in the law to be administered, without which they cannot enjoy the confidence of the country. This is universally adopted. Accordingly, in the constitution of the Privy Council, which is a sovereign court of appeal, this principle is practically admitted. There the different laws in the British colonies, in so far as they vary from the law of England, are fairly represented by some judge versant in those laws, sitting along with the law Lords. Even in judging in Irish appeals, this principle is admitted. It has been said that the appellate jurisdiction Scotch appeals has hitherto worked well, and has given satisfaction. Fully acknow ledging the remarkable ability of the many eminent English judges who have adorned the woolsack, we think that this statement is capable of such an answer as entirely deprives it of any weight, in considering the expediency of improving the constitution of the appellate tribunal in appeals from Scotland. Lord Camden confessed a positive dislike to sit in Scotch appeals, on no other ground than that the Scotch law was not familiar to him. The consequence was, that he invariably relieved himself, where he could possibly lay the duty on another generally on Lord Hardwicke or Lord Mansfield; but then, Lords Hardwicke and Mansfield were both of them great masters of the Roman law, on which the law of Scotland is founded. Lords Mansfield and Loughborough had studied the law of Scotland as a separate system; and both, while at the bar, had long years' experience in pleading Scotch appeals. They were both versant in the feudal system. These circumstances were, however, accidental. On the other hand, Lord Bathurst acknowledged his total incapacity, by handing over the Scotch appeals to Lord Mansfield. Even Lord Eldon, on many occasions, showed himself uneasy

and at great difficulty in judging in Scotch appeals. The bias of the English lawyer, which he sought most anxiously to guard against, was apt, he confessed, to give a turn to the judgment which was not expected. Accordingly, his difficulty and hesitation in Scotch appeals were great; and too frequently produced no result, but a remit back to the Court for reconsideration, which remit ended often with the same judgment as before; or, if the parties could not stand a second or third appeal, ended with compromise or with ruin. This hesitancy on the part of Lord Eldon arose from the judgment of the Court of Session appearing to him to be inconsistent with what he, as an English lawyer, considered should have been the judgment, or on some misunderstanding on Scottish points of

form.

In the Roxburgh causes, disposed of by Lord Eldon in the House of Lords, Viscount Melville was obliged to interfere, when Lord Eldon had tabled a motion as to the procedure in the Court of Session in that case, and by explanations familiar to all Scotch lawyers, and upon the authority of Stair and Erskine, obliged the Chancellor to withdraw his motion.

Lord Redesdale-a very eminent judge-confessed that he participated in the same difficulty in the Queensberry cases (1819). 'It is,' said he, 'a very difficult task unquestionably, for persons who are not familiar with the administration of the law of any country, to apply their minds so fully as those who are familiar with it. No person can feel that more strongly than myself. Having been for a twelvemonth only in the situation of Speaker of the other House of Parliament, and therefore absent from courts of justice, I certainly did not find myself, when I returned again to a judicial situation, so capable of applying my mind to the subject as I should have been if there had been an interval between my following the profession at the bar, and my holding the situation of Chancellor of Ireland. I heard that one of the most able men that ever sat in the Court of Chancery in this country (Lord Cowper), having ceased for four years to be Chancellor, in consequence of a change in the Administration, when he afterwards came back to the office of Chancellor, often declared that he did not feel himself so ready in the discharge of his duty in that office as he had been before. Whenever, therefore, I judge of a case of Scotch law (being bound, nevertheless, by the situation in which I stand to form a judgment upon it as well as I can, and as every one of your

Lordships is bound), I always have a jealousy of myself upon the subject, and always endeavour most particularly to divest myself of anything that can be called English prejudice. I hold that to be a most imperious duty, because I must admit that it is likely such prejudice should exist in my mind.'

It thus appears, that eminent as these judges undoubtedly were, none of them was insensible to the difficulties attending the discharge of his duty in the disposal of Scotch appeals. If even an absence from judicial duty, from change of Ministry or other causes, made a Chancellor, on his return to office, less ready and capable for the discharge of the judicial functions, how much less capable must that judge be, who, through his whole professional life, has been disassociated from the practice of Scotch law.

These defects in the appellate jurisdiction are made more apparent by marking a few of the changes which it has wrought in the law of Scotland by the force of decisions, thus suddenly wrenching the law from its ancient bases.

At one time the fetters of an entail were held to apply to the institute as well as the substitute heirs, under the general term 'heirs of tailzie;' but in the Duntreath case this law, which had existed for nearly half a century, was changed by Lord Mansfield by a reversal in the House of Lords, although with much dissatisfaction among the highest legal authorities on the bench both in Scotland and England-Lord Eldon having always disapproved of that judg ment. Until the Queensberry cases occurred on the Neidpath and Queensberry entails, it was understood as law that leases could be granted to any extent and duration, where not expressly prohibited; but in these cases it was held that leases beyond the ordinary period of endurance were alienations, and fell under the prohibitory clause, to 'alienate' or 'dispone. In like manner, for more than half a century it had been understood that an heir substitute of entail, disappointed of the succession from defect in the irritant and resolutive clauses not applying to sales, was still entitled to insist on the reinvestment of the price, as against the heir in possession; and two or three decisions had been pronounced in the Court of Session to that effect. But in the Ascog case, although the previous decisions were confirmed by the whole court (11 judges for it, 4 against it), this law was upset in the House of Lords by one single English judge, thus unsettling things long at rest.

Examples of a similar nature are referred to by the distinguished