the representatives of Joseph Stainton before the Court; a person in the position of a trustee is liable in equity for a breach of duty, and so are his representatives, though he may have derived no benefit from it. Montford v. Lord Cadogan. (a) A director is a trustee, his office differing from that of an ordinary trustee, not in the nature of its obligations, but in the character of the duties which he has to perform. The concealment practised in this case was one which reduced the dividends, and therefore necessarily affected the price of the shares.

Judgment reserved.

November 14.

* 689

THE LORD JUSTICE KNIGHT BRUCE. The allegations of the bill in this case, if taken as true, appear to me to show that a relation of confidence* as to property existed between Mr. Garbett (whom the plaintiff represents) on one hand, and Mr. Joseph Stainton and Mr. Henry Stainton, of whom the former is represented by the demurring defendant, on the other hand; that acts of fraud, to the prejudice of Mr. Garbett, were committed by Mr. Henry Stainton and Mr. Joseph Stainton, with respect to that property in the course of that relation by means of an abuse of it; and that as to these acts, on the part of each of them, the two were so associated together as to entitle the plaintiff to proceed in equity by one suit against the personal representatives respectively of Joseph and of Henry Stainton.

I think that the demurrer should be overruled, but I have no objection to reserving to the demurring defendant the benefit of it at the hearing of the cause, a course which, whatever its meaning or effect, has on several occasions been taken in the Court of Chancery.

THE LORD JUSTICE TURNER. This case is so fully reported in Hemming and Miller's Reports, and has been so recently before us, that it is unnecessary to state the facts. The demurrer is by the personal representative of Joseph Stainton, for want of equity and for multifariousness.

So far as the demurrer rests on want of equity it will be suffi

(a) 17 Ves. 485.

cient, as it seems to me, to consider the case as it is stated with reference to the forty shares purchased by Henry Stainton. The case stated by the bill as to these shares cannot be represented as standing lower than this, that two confidential agents of the partnership, Joseph Stainton and Henry Stainton, conspired together to obtain for themselves the shares of the partners in

the concern, at an undervalue, by keeping the accounts of * 690 the *partnership fraudulently, so as to conceal from the partners the true value of the shares, and that it was by means of this fraudulent conspiracy, the detailed workings of which are fully stated in the bill, these forty shares were obtained by Henry Stainton at a price far below their real value. We are to consider then whether, in this state of circumstances, the estate of Joseph Stainton is or is not liable in equity to account to the plaintiff for the dividends and bonuses which have accrued upon these forty shares since the transfer of them to Henry Stainton, and I am of opinion that the estate of Joseph Stainton is so liable. A more gross breach of duty, on the part of an agent towards his principal, than is disclosed by this bill, cannot well be conceived, and it is not denied (at least the Vice-Chancellor has not denied) that there would be a remedy at law against Joseph Stainton and his estate in respect of this breach of duty, but with all deference to his Honor's judgment, there is at least a concurrent jurisdiction in equity in the case of fraud by an agent upon his principal, and certainly, I am not prepared to agree to the doctrine that, where two agents concur in a fraud, and one of them only derives benefit from the fraud, the other is not liable in equity for the benefit so derived. Agents are, in a sense, trustees; they owe to their principal a similar duty to that which trustees owe to their cestui que trust, and it could hardly, I think, be doubted that if this case be looked at as one of trust, and not of mere agency, the estate of Joseph Stainton would be liable for the benefits which accrued to Henry Stainton's estate.1

Upon these grounds, my opinion is, that there is a sufficient equity to maintain this bill as to the forty shares, and it is unnecessary therefore to consider how the case stands upon the bill as to the fifteen shares purchased by Joseph Stainton. * 691 Possibly the bill may be * advantageously amended as to that part of the case. Length of time was not much, if at 1 See Kerr F. & M. (1st Am. ed.) 172.

all, relied upon in support of the demurrer in the course of the argument before us, and the allegations of the bill seem to meet any argument which could have been founded upon it. It was, however, much insisted upon in support of the demurrer, that it was fatal to the plaintiff's case as to the forty shares that there was no allegation in the bill of fraud upon Selkrig, by whom those shares were sold; but this is a case of impeaching a sale, not for fraud in the mortgagee, but for fraud in the purchaser, which affects the mortgagor no less than the mortgagee.

There remains then only the question of multifariousness, and, in my opinion, the demurrer fails upon this ground also. It is true that there are separate purchases of the fifteen shares and the forty shares, but these separate purchases are alleged by the bill to have resulted from a fraudulent contrivance, which is common to both, and it is in respect of that fraud that relief is sought. The rule as to multifariousness does not, I think, apply to such a case. This demurrer, therefore, ought, in my opinion, to be overruled; the costs of the demurrer, and of the appeal, to be dealt with by the Vice-Chancellor.

[ 537 ]

AN INDEX

ΤΟ

THE PRINCIPAL MATTERS

CONTAINED IN THIS VOLUME.

ACCOUNT. See TRADE-MARK.

ACQUIESCENCE.

A trustee permitted his co-trustee, the father of one of the cestuis que trust-
ent, to sell out the trust fund, the co-trustee depositing with him a
packet of title-deeds by way of indemnity. The son on coming of age,
in 1851, had an interview with the trustee upon the subject. In 1855,
the father, when dangerously ill, spoke to the son, about the breach of
trust, and desired him to call on the trustee, and obtain from him and
keep the packet of deeds, which the son did. The son afterwards
received a letter from his father, while still dangerously ill, request-
ing the son, in the event of the father's death, not to hold the trustee
responsible, and enclosing the form of a memorandum for the son to
copy, and sign, and send to the trustee, and by which the son, in con-
sideration of the delivery up of the deeds, discharged the trustee from
all liability. The father died in 1859, and in 1861 the son filed a bill,
seeking to make the trustee liable for the breach of trust.

Held, that
the son had by his conduct so acquiesced in the breach of trust as to
preclude him from complaining of it. Farrant v. Blanchford, 107.
ACT OF BANKRUPTCY. See BANKRUPTCY, 1.
ADMINISTRATION OF ASSETS.

-

*694

The testator was a partner in a trading firm, and shortly after his
* death the surviving partner became bankrupt. A dividend was
paid on the joint debts, and after the joint estate had been fully
distributed a decree was made for the administration of the testator's
estate. Held, that the joint creditors were not entitled to prove under
the decree for the unpaid residue of their debts pari passu with the
testator's separate creditors, but must be postponed to them. - Lodge
v. Prichard, 610.

See EXONERATION.

ADMISSION. See LIMITATIONS (STATUTE OF), 1, 2.

ADVANCES.

A testator sold to his daughter's husband a business, which the testator had
purchased, for sums secured by promissory notes, payable five years