Case of Ex parte
Angel.

Ex parte Angle is reported also in Barnardiston, C. C. 423, under the name of Ex parte Angle. The marginal note in Barnardiston is, "When there are several managers concerned in a public trust, and some of them die, how far the survivors shall alone be obliged to account for a mismanagement of the trust." Atkyns gives this marginal note, "Where some of the undertakers, under the act 4 Anne, c. 14, in regard to briefs, are dead, in a bill for an account, their representatives need not be brought before the Court, for they are each answerable the one for the other."

The act here mentioned is entitled "An Act for the better collecting Charity-Money on Briefs by Letters Patents, and preventing Abuses in relation to such Charities ;" and by it printed copies of the briefs were to be delivered to the persons undertaking, on behalf of the sufferers, the collection of the monies, and when such briefs were received back from the parishes and places to which they were sent, the same were to be deposited with the register of the Court of Chancery. By the 4th section it was enacted as follows, "that the said undertaker or undertakers shall within two months after the monies respectively received, and after due notice thereof to the sufferers (who are to be admitted to controvert the same), account before one of the Masters of the Court of Chancery, to be for that purpose appointed by the Lord Chancellor, Lord Keeper, or commissioners for the custody of the great seal of England for the time being, for all the monies by them received on account of such letters patents and briefs, and shall produce before him an exact account of the respective briefs by them delivered out and received back, and left with the register as aforesaid; and thereupon the said Master shall proceed to make his report of what shall be found due on such account, and the said report being confirmed by the said Court of Chancery as usual, shall be a charge on the said undertaker or undertakers, and shall be carried into execution against him or them, as if decreed in a suit there depending; in taking which account such Master shall make all just allowances to such undertakers for their trouble and pains of management, over and besides the charges to be expended for the said letters patents and copies thereof; and such Master shall also have power by the common methods of the Court of Chancery to examine into all frauds and ill practices that shall be committed by the said undertakers or their agents, or any others concerned for or under them in such collection, and he shall report the same to the Court; which report being confirmed by the said Court, it shall be in the power of the Lord Chancellor, Lord Keeper, or com

missioners as aforesaid, for the time being, to impose such fine and costs on every such offender, as the nature of the case shall require; which said fine, and all other forfeitures incurred by the said undertakers or their agents, shall be only for the benefit of the sufferers, for whose benefit such briefs shall be granted, and shall and may be recovered by the order of the said Court of Chancery, founded on such report so confirmed as aforesaid, and carried into execution, as the decrees of that Court usually are.” By the fifth section it was provided, that where any penalties are by the act inflicted on any person or persons, other than the undertakers, their deputies, substitutes, or servants, such penalties shall be recovered by action of debt, bill, plaint, or information.

In Ex parte Angel the undertakers were seventeen in number, and-it turning out that upwards of 800 briefs, with the contributions thereon, had been lost, and apparently by the negligence of the undertakers-upon the hearing of a petition to compel an account according to the act, it was objected on behalf of the respondents, that out of the seventeen undertakers, seven were dead, and that their representatives ought to be brought before the Court. Lord Hardwicke said he was of opinion, that it was not necessary to bring these representatives before the Court, and that an order for accounting ought to be made against the survivors; that he did not at all like the behaviour of the undertakers in what they had done: that the undertakers were to be considered as one body, and they were each of them answerable the one for the other, for which reason the objection for want of bringing the representatives of the dead undertakers before the Court was quite immaterial.

Any observation to show that Ex parte Angel has no authority beyond cases arising under the Act of Anne would be superfluous.

The circumstances of Walker v. Symonds were these. Nicholas Case of Walker Donnithorne, Griffith and Symonds were trustees of a fund that v. Symonds. Mrs. Walker had become entitled to, and which upon her marriage had been the subject of a settlement. The fund, after having been invested, had been called in and suffered to remain in N. Donnithorne's hands upon the security of his bond. He died intestate in 1796, possessed of the trust money. Isaac Harris, his son, was his heir at law and administrator; and in March, 1797, an indenture was made, by which Harris conveyed all the real and personal estates of his father N. Donnithorne, and also his own property, upon trust to pay the debts of N. Donnithorne and of Harris himself. This indenture was exe

cuted by Griffith and Symonds as creditors for the trust fund, and, as they alleged, with the approbation of Mrs. Walker. Griffith died in 1800. Lilly was his executor. In 1802 Mr. and Mrs. Walker and their trustees filed a bill against Symonds, Lilly and Harris, praying that Symonds and the respective estates of Griffith and N. Donnithorne might be charged with the amount of the trust money, and that Symonds, and also Lilly and Harris, out of the estates of their respective testators, or some or one of them, might be decreed to pay the same. The bill having been dismissed by Sir William Grant, was in August, 1812, reheard by Lord Eldon, who made a decree directing an inquiry. In 1816 Symonds died, and the suit was revived against his executors. In 1818 the cause was heard before Lord Eldon upon further directions, who upon the 21st April determined that Mrs. Walker was entitled to relief: and that the trustees [the representatives of Symonds and Griffith] must stand in her place under the deed [of March, 1797].

On the 25th April Mr. Hart proposed that the decree should declare the trustees [Symonds and Griffith] personally liable for the trust money; leaving them to proceed for their indemnity against the estate of N. Donnithorne. Sir Samuel Romilly objected, that it was unprecedented to allow a cestui que trust, seeking compensation for a breach of trust, to select two of the trustees, and prosecute no claim against the third, and that the defendants [the representatives of Symonds and Griffith] could effectuate their equity only by means of the plaintiff [Mrs. Walker].

On the 26th May Lord Eldon said the result of the case was, that the plaintiff Mrs. Walker had a demand against both defendants [against the representatives of Symonds and Griffith] for the amount due; and that they must take their remedy against those who made the composition, to recover it as their own debt. The question was, whether it was not to be considered as a case of concert between Harris and the two trustees [Symonds and Griffith]: the consequence of which was, that they [the representatives of Symonds and Griffith] must arrange with each other as well as they could, making up to the plaintiff Mrs. Walker the amount: that the composition could not be rescinded, unless the plaintiff Mrs. Walker filed a bill against all the parties to that deed; and the single question was, whether in all the circumstances of the case, and having regard to general principles, the plaintiff Mrs. Walker was at liberty to abandon her remedy under the trust deed, and charge the surviving trustees personally [go only against the estates of Symonds and Griffith].

On the 10th June Lord Eldon further said, that when three trustees are involved in one common breach of trust, a cestui que trust suffering from that breach, and proving that the transaction was neither authorized nor adopted by him, may proceed against either, or all, of the trustees. That the case before him comprised this peculiarity, that Harris, being the son and representative of a deceased trustee, by deed dedicated all his own fortune and the assets of his father to the payment of debts, including the trust-fund; and by the form of the arrangement he became the debtor of the co-trustees [Symonds and Griffith], and they became his creditors: if with the approbation, properly obtained, of the plaintiff Mrs. Walker, she [would have] had no reason to complain. Her demand against the assets of the deceased, it appeared to him, might be enforced under the trust deed, but then all parties interested in it must be parties to the suit. The real question was, whether on the record in its present state, supposing the Court right in declaring the two surviving trustees guilty of a breach of trust with the deceased trustee, the plaintiff Mrs. Walker was not entitled to abandon all benefit of the trust deed, and charge the survivors with [the] breach of trust, and also the representative of the deceased (a): and to say that the assets had, without her concurrence, been placed in such a state that she was not bound to pursue them, but might leave the survivors to indemnify themselves thence: that if she abided by the trust deed, she must abandon her claim against the survivors.

On the 13th June Lord Eldon observed in addition, that N. Donnithorne, if the trust deed had not been executed, was first liable; but the consequence of that [of the deed being executed] was no more than this, that the plaintiff Mrs. Walker would be bound to place the other trustees in her situation, that they might have every remedy, which she might have had against him [N. Donnithorne]; that the difficulty arose from this, that the trust deed had made all the property of N. Donnithorne a trust fund for the creditors executing that deed, and had therefore taken the property out of the situation in which it would otherwise have stood as his real or personal assets. But if the plaintiff Mrs. Walker was compelled, in consequence of the execution of that deed, to pursue his assets under all the difficulties that deed had interposed, by which, in the circumstances of the case, she was not bound to abide, the question was, whether she was

(a) It is plain the words "and also the representative of the deceased" have crept in by inadvertence.

not entitled to an equity of this kind,-to say to the surviving trustees that the bond of N. Donnithorne was discharged as a bond, not by her act but by theirs, and to require them to replace the trust fund, leaving them to seek justice through the means provided by this deed? That a declaration must be inserted in the decree, that all demands which the plaintiff Mrs. Walker might possess under the trust deed, or against the assets of N. Donnithorne, as assets, the surviving trustees would be entitled to enforce for their own benefit.

On the 6th July Lord Eldon again mentioned the cause, repeating and confirming some of his former remarks.

The marginal note in Walker v. Symonds is thus, "Right of a cestui que trust to proceed separately against one trustee implicated in a joint breach of trust." The words of Lord Eldon, to which this note is affixed, have been already stated. "When three trustees are involved in one common breach of trust, a cestui que trust suffering from that breach, and proving that the transaction was neither authorized nor adopted by him, may proceed against either, or all, of the trustecs." It must be admitted that these words, regarded abstractedly, justify those, who ascribe to Lord Eldon the above doctrine; but taken in relation to the circumstances of the case in which they were pronounced, and in conjunction with the passages that precede and follow, it is obvious such words do not support the proposition for which they have been so often cited.

The foregoing abstracts of the two cases of Ex parte Angel and Walker v. Symonds were made about three years ago, since which time the case of Munch v. Cockerell, mentioned ante, page 78, has been published; see 8 Simons, 219. The abstracts and the author's conclusion will be found in accordance with the ViceChancellor's judgment.

In Munch v. Cockerell it does not appear that reference was made to Wilson v. Moore, 1 Mylne & Keen, 126, often mentioned under this head. The language there used by Sir John Leach, that all parties to a breach of trust are equally liable, but cestui que trusts have a right to proceed against such of them as they think fit, when understood in connexion with the facts of the case, furnishes, however, no authority in favour of the doctrine here considered.

ERRATA IN PART III.

Page 415, line 40, for "speed," read "need."

Page 479, case of Scholefield v. Ingham, after line 6, insert "Mr. Cooper and Mr. Bethell for the plaintiff. Mr. Wigram for the defendants."