both what he calls a retainer and a trustee, he betrays his trust by doing what a person holding those notes ought not to have done. At the same time as one of the executors of William Campbell he had received his own legacy, and must have known that the others were not paid. It is manifest therefore that he directed payment of that 3,2001. in a manner in which it ought not to have been paid, and that without necessity. Even if the law had given him a right of retainer, why is such a right given? that he may not suffer injury; it is not given him for the purpose of enabling him to do injury. That transaction therefore was neither more nor less than this; that considering Thomas Brown as residuary legatee of William and William's estate sufficient, he took that money as residuary property. If he did not, he took it dishonestly; for if he knew that the effects of William Brown were not sufficient for the payment of debts and legacies, he ought to have pursued his demand against Brown and Oakman and against John Brown, so far as he was surety, to prevent a loss to the estate. His conduct therefore must be considered as amounting to this; that the 3,2001. was taken, not as effects of William, applicable to the payment of his debts, but as part of the residuum, applicable to pay the debts of Thomas Brown: but before he applied the effects of William to pay the debts of Thomas, it was his duty to see that the debts and legacies of William were paid.

With respect to the sums of 1,540% and 513.; they are in the same situation: it is impossible to say that the copartner of Campbell would have paid that money to Thomas Brown without the approbation of Campell, he standing in the character of co-partner and trustee.

There are cases on this subject, which, though they do not appear to apply as to the precise facts, yet will be found

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applicable when we consider the principle. I have a MS.
case, Carsey v. Barsham and Haydens, decided by Lord
HARDWICKE in March 1753. Anne Monckton left the two
defendants her executors, and trustees of her real estate for
the payment of debts and legacies, and she gave the surplus
to Barsham: he alone proved the will: the real estate sold
for 630%.;-both the executors and trustees joined in the
sale; Haydens never proved the will and does not appear
to have acted with respect to the personal estate; but he did
act in respect of the real, and joined in the sale. The sum
of 300l. was by the agreement of both the trustees left
in the purchaser's hands to pay legacies: 300l. was paid
to Barsham in discharge of a legacy which was given him
besides the residue, and 10l. to Haydens. The plaintiff was
a creditor whose debt was not included in the fund so pro-
vided for and left in the hands of the purchaser; he brought
his bill and (Bursham being in doubtful circumstances) in-
sisted that Haydens was answerable for the application of
this purchase money, having joined in the direction for the
application of it in the manner stated, and not having taken
care that the debts were paid. The master of the rolls,
(Sir JOSEPH JEKYLL) decreed both the defendants answer-
able for this money as to creditors: the cause was re-
heard on the part of Haydens, alleging that he had received
none of the assets, was a 'mere trustee and ought not to be
charged, and that the debt should be paid by Barsham out
of the assets.
ets. Lord HARDWICKE said, "a trustee is
only answerable for what he receives or applies, but
“Haydens has made himself liable by joining in the deed by

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which the purchase money was left in the hands of the purchaser for payment of the legacies;" he considered it a devastavit, and made Haydens responsible for the deficiency of Barsham because he had joined in the direction to pay. Now it is impossible to say that Campbell did not join in the

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direction that the money so paid to Thomas Brown should be paid.

The circumstance of the delivering up the note of Brown and Oakman as well as of fohn Brown, I think brings this case within the other cases; for it amounts to a release of the debt without payment to the estate of Wm. Brown: the interference of courts of equity is not confined to cases of executors; but any person who has any thing in the nature of a trust is made responsible by a court of equity in such

cases.

L

There was a case determined in the court of Exchequer in Englandin 1778, of which I have a note, where the principle on which a person holding for a particular purpose (and so far holding in trust) was bound, was a good deal considered. The bill was filed by the late Lord Verney v. Carding, Noah and Bacherach. In 1773, Lord Verney delivered two notes to Bacherach, who promised to carry them to a merchant to get discounted. Lord V. attended at a place in the city appointed for the purpose of receiving the money; but Bacherach did not appear, and he soon after absconded. The notes were delivered the same day to Noah, who delivered them to Tatlock; he produced one of these notes to Carding, and asked him to discount it; he took the note and proposed inquiring into Lord Verney's circumstances; but not being satisfied with the result of the inquiry, he returned the notes (which were not then endorsed) to the brother of Noah; Carding afterwards, having more favourable accounts of Lord Verney's circumstances, took the notes, (which were then endorsed by Bacherach) and gave Noah different notes for them. Noah was taken up for procuring the notes by false pretences, and the notes were delivered into court, bills of indictment being found. A bill was filed against Carding; it was proved that he knew

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of Noah's character and circumstances, and that Noah's notes were worth nothing. Noah examined a witness to prove that he had delivered the value to Bacherach. The barons at first were disposed to direct an issue as to the consideration which Carding gave for the notes, but afterwards thought they ought to decree the notes to be delivered up, because Carding had procured them malâ fide; that he knew they were a trust in Bacherach's hands, which trust followed the notes that this was an equity which might have been rebutted by a purchase for valuable consideration without notice; but that he had notice that Bacherach and Noah were the same person, and that he was in the case of a purchaser for valuable consideration with notice.

There was another case, mentioned in that case : it was the case of Lord Bolingbroke, who delivered notes to a person to get discounted; he carried them to a banker, who insisted on taking the notes, aud placing them to the holder's credit, there being a balance due by him to the banker; the holder consented; but the banker, knowing that he had them for the purpose of getting them discounted, was obliged to account to Lord Bolingbroke for them. The cases cited upon the argument of that case were those

where an executor transfers part of the assets for the avowed purpose of paying his own debt, in which case the person so receiving the assets is held liable; for by this sort of dealings the person concurs in a devastavit, as the value he gives for the assets is of a nature which it is impossible should be applied to the purposes of the administration. In fact, the executor gets nothing applicable in any manner to the trust for which he holds the assets in lieu of what he so parts with. These two cases which I have mentioned are cases on which a variety of determinations have been made in England. I think Campbell must be considered, as to the

3,2001. as a purchaser with notice of the trust, and that the trust was broken; and I therefore ought to hold him responsible in default of Tho. Brown, as Lord HARDWICKE held Haydens to be in default of Barsham.

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cr It was referred to a master Reg. Lib. xlix. 500. "take an account of the debts, legacies and funeral ex66 pences of William Brown, deceased, and also an account "of the real and personal estate of said William Brown; “and that in taking such account, the master should re"port particularly the part of the personal estate of said "William Brown which came to the hands of defendants "Campbell and F. Joy respectively; and that the mas66 ter should also take an account of the personal estate of "said W. Brown, and of the rents and profits of his real

estate charged by his will with his debts and legacies, "which came to the hands of the late defendant T. Brown "before the bankruptcy; and also an account of the pay

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ments made by the said T. Brown in respect of the debts, "funeral expenses and legacies of said IV. Brown. And "further, that in taking such account the master should in "the first instance charge the estate of T. Brown with the

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sum of 5,285. 18. 5d. in, the pleadings mentioned, as "received by him from the partnership in which IV. "Brown was engaged with said F. Campbell. And that "the master should also charge the estate of T. Brown "with the several sums of money appearing by the books "of said T. Brown to have been carried to the account of