OSTELL v. LE PAGE.

1852.

Dec. 16.

(2 D. M. & G. 892-897.)

[A note of this appeal will be found at the end of a report of an earlier proceeding in the case before Turner, V.-C., 90 R. R. 25 (5 De G. & Sm. 95). See 90 R. R. at p. 34.]

PIDCOCK v. BOULTBEE.

(2 D. M. & G. 898; S. C. 22 L. J. Ch. 611; 1 W. R. 94.)

A guardian to an infant defendant of unsound mind, not so found by inquisition, should be appointed by the Court of Chancery, and not under the jurisdiction in lunacy.

MR. W. H. TERRELL applied, at the suggestion of ViceChancellor KINDERSLEY, before their Lordships, under their jurisdiction in lunacy, on behalf of the plaintiff, for the appointment of a guardian ad litem to an infant defendant, who was a lunatic, but not so found by inquisition. Lord TRURO had in another suit, in which the same infant was a party, made a similar order; and the VICE-CHANCELLOR, without giving any opinion upon the point, considered under these circumstances that the application had better be made to the same jurisdiction.

Mr. H. F. Bristowe appeared for the other defendants.

Their Lordships held that the application ought not to be made under the jurisdiction in lunacy, but might be made to the ViceChancellor.

1852. Dec. 22.

KNIGHT
BRUCE,
Lord

CRANWORTH,
L.JJ.

[898 ]

BOWEN v. PRICE.

(2 D. M. & G. 899--890.)

[Under 15 & 16 Vict. c. 86, s. 12, delivery of interrogatories at the office of the defendant's solicitor without personal service on the solicitor was sufficient; but now see Ord. XXXI. rr. 22, 23.]

EX PARTE BRADSHAW (1).

(2 D. M. & G. 900–901.)

Under the old law of husband and wife, where the husband of an executrix had gone out of the jurisdiction and could not be found, a vesting order might be made under s. 22 of the Trustee Act, 1850. THIS was an application made to their Lordships by the decision. of Vice-Chancellor KINDERSLEY, who felt a difficulty in applying

(1) See now the Trustee Act, 1893, s. 35.

1852. Dec. 21, 22.

1852.

Dec. 17, 22.

KNIGHT

BRUCE, Lord CRANWORTH,

L.JJ.

[900]

Ex parte BRADSHAW.

[ 901 ]

to the case the provisions of the Trustee Act, 1850, s. 22, which enacts, that where any person or persons shall be jointly entitled with any person out of the jurisdiction of the Court of Chancery, &c. to any stock, &c., upon any trust, it shall be lawful for the Court to make an order vesting the right to transfer such stock, or to receive the dividend, &c., either in such person jointly interested, or in such person together with any others whom the Court may appoint.

In this case a testator named William Dennison, by his will, dated 15 February, 1835, bequeathed to William Bradshaw and John Bradshaw all his property, and appointed J. H. Pearl and Elizabeth Bradshaw executor and executrix.

Elizabeth Bradshaw married in 1838 Youngman Charles Jolly, who in September, 1839, sailed for the West Indies, leaving his wife, and had never since been heard of.

William Bradshaw had lately attained twenty-one, and now sought by a petition under the above Act to have his share transferred to him.

Mr. Hetherington supported the petition.

Their Lordships held the case to be within the 22nd section.

The order was made by the VICE-CHANCELLOR on the 22nd of December, some additional evidence having in the meantime been obtained.

1852. Aug. 2.

DAVENPORT v. STAFFORD.

(2 D. M. & G. 901-902.)

By admitting assets, the executor of an executor renders himself liable to the same decree as the executor himself, if living, would have been liable to in respect of the personal estate of the original testator.

[A note of this appeal will be found at the end of the report of the case below at the Rolls Court, 92 R. R. 119 (14 Beav. 328). See 92 R. R. at p. 129.]

BODENHAM v. HOSKYNS (1).

(2 D. M. & G. 903-906; affirming S. C. 21 L. J. Ch. 864; 16 Jur. 721.)
A receiver of an estate, who had a private account at his bankers', opened
another there, under the name of the estate, under such circumstances as
to inform the bankers that the money which would be paid in to that
account would belong to the owner of the estate. The receiver drew a
cheque on the estate account and paid it into his private account: Held,
that the bankers were liable to repay the amount to the owner of the

estate.

THIS was KINDERSLEY.

1852. June 10. KINDERSLEY, V.-C.

On Appeal.

Aug. 3.
Nov. 3.

KNIGHT
BRUCE,
Lord

an appeal from a decision of Vice Chancellor CRANWORTH,

The plaintiff was the owner of an estate in Herefordshire, called the Rotherwas estate. He employed Mr. Parkes (a defendant) as his solicitor, and also as his receiver and agent in respect of this estate. Mr. Parkes had an account with Messrs. Hoskyns (other defendants), who were bankers at Hereford. Upon his appointment as receiver, he opened another account with them. for the purpose of placing to the credit of it the sums which he might receive in respect of the rents and profits of the Rother was estate; and what took place upon the occasion of this second account being opened was a subject of dispute, but it appeared that the account had been opened by a Mr. Ward, who was a clerk of Mr. Parkes, and Mr. Ward's evidence, which was wholly uncontradicted, was to the following effect.

In the month of October, 1846, the witness was directed by Mr. Parkes to open an account for him with Messrs. Hoskyns & Co., in the name of "The Rother was Estate Account;" and accordingly attended at the Bank on the 26th of October, 1846, and opened the said account by paying to the credit of it 7001. He saw there the then manager of the Bank, to whom he addressed himself, but to the best of his recollection one of the defendants (a partner in the Bank) was also there, and near enough to hear what passed. The witness then stated to the manager, by Mr. Parkes's direction, that the account was to be opened under the title of "The Rotherwas Estate Account," and that the cheques which Mr. Parkes would draw upon it would be so indorsed, because the money which would be paid in to the account belonged to the plaintiff, and that Mr. Parkes wished it to be kept separate from the other account which he had with the Bank. The sum of 7001., which

*.

(1) Pearson v. Scott (1878) 9 Ch. D. 198, 38 L. T. 747, 26 W. R. 796; Coleman v. Bucks and Oxon Union

Bank [1897] 2 Ch. 243, 66 L. J. Ch.
564, 76 L. T. 684, 45 W. R. 616.

L.JJ.

[ 903 ]

[ *904 ]

BODENHAM

V.

HOSKYNS.

[ *905]

June 10.

[ 16 Jur. 723]

the witness paid in to the credit of the account, consisted of rents arising from the Rotherwas estate, which had been just received by Mr. Parkes, and belonged to the plaintiff, and was, to the best of witness's recollection, chiefly composed of country bank notes.

Mr. Parkes had also been examined and deposed to a previous interview between himself and a partner in the Bank in June, 1846, in which he asked for leave to overdraw his account to the extent of 1,500l., and stated it to be his intention to introduce to the Bank the Rother was account, when he should become the plaintiff's receiver, whereupon the partner asked what was the rental of the estates; and, being informed that it was 6,000l. a year, said that he was satisfied, and Mr. Parkes was consequently allowed to overdraw.

In July, 1847, Mr. Parkes drew a cheque for 8291. 11s. 9d. on the Rotherwas account, and paid it into the Bank to the credit of his own private account.

Upon the discovery of this transaction the present bill was filed, stating to the above effect, and that Parkes was insolvent, and praying that the transfer or paying of the 8291. 11s. 9d. might be declared fraudulent and void, and that the defendants the bankers might be ordered to make good that amount.

The VICE-CHANCELLOR decreed the repayment with interest *after the rate which the bankers allowed on the account.

[The judgment of the VICE-CHANCELLOR is reported in 16 Jurist, commencing on p. 722. In that report, after stating the facts and after commenting upon the evidence, with special reference to the circumstances attending the opening of "The Rother was Estate Account," his Honour said (p. 723) :]

Whatever doubt might exist on Parkes's evidence, here is Mr. Ward's evidence, showing that when the account was opened - at the moment when the very first sum was paid in to the credit of that account-the bankers were distinctly informed of the reason why it was kept as a separate account-why the cheques were to be intitled with the words the "Rotherwas Account." The reason was, because the monies which had been paid in to that account belonged to Mr. Bodenham, the plaintiff. It appears to me beyond all question, therefore, that from the very commencement of that account the bankers knew that the monies paid in to that account were the monies of Mr. Bodenham, arising from the rents and profits of the Rotherwas estate; and

that the account was kept by Parkes, not as an account of his own in relation to his own monies, which belonged to himself, but in his character of agent to Mr. Bodenham's Rotherwas estate. Now, whether the bankers, in their own minds, or even in their own books-if the fact had been so-treated the Rotherwas account as if it had been the private account of Mr. Parkes-whether they did so or not, the question is, whether they had a right to do so; whether they had a right to say, knowing from the outset that the money placed to that account was Mr. Bodenham's money, and that any balance standing to the credit of that account at any time was Mr. Bodenham's balance-the question is, whether they had a right to say that they would make such an arrangement with Mr. Parkes as that at any time they should be at liberty to appropriate that balance, to the credit of that account, towards the liquidation of the balance standing to the debt of the private account of Mr. Parkes. It appears to me that it is not a question whether, simply, at the time when the cheque was drawn for the 8291., they had a right then to allow that cheque to be placed to the credit of the other account-the private account of Parkes— but whether they had a right ever to make an arrangement with Parkes to that effect, if the arrangement was made or intended to be made whether they had a right to say that the receiver should so deal with them as to make his principal's money at any time. liable to be appropriated to discharge the private debt of the receiver to the bankers. I am quite satisfied, that upon all principles of equity that could never be done; and this case illustrates what has very often struck me as a very remarkable view of the principles of equity, that almost all the principles which are acted upon by a court of equity, in point of fact, are pervaded by a higher and purer and more exalted tone of morality than that which prevails among mankind, even among the moral portion of mankind; and I wish it to be understood, that I do not think there is to be imputed to these gentlemen any design of doing that which in their minds was dishonest or improper. I believe they had no such intention; all I think that I can impute to them is, that they were not aware that, according to the principles, the usual principles of a court of equity, a person who deals with another, which other he knows to have in his hands or under his control monies belonging to a third person, cannot deal with the individual holding those monies for his own private benefit, when the effect of that transaction is, that that individual