ulations from the first settlement of the coun | Such fish-ways did not admit of the usual and try to the date of the decision in that case. unobstructed passage of the fish, as required by Com. v. Chapin, 5 Pick. 204. the law of the state and the 7th section of their act of incorporation. Complaints subsequently arose and the company was indicted for such neglect, and the case came to trial, and the jury, under the rulings and instructions of the court, found the defendants guilty and they excepted to the rulings and instructions of the court and the case was heard before the full court. Unquestionably the case was fully considered, and the court, in the first place, reaffirmed all of their previous decisions upon the subject, which hold that persons who build a dam for mill purposes on a stream frequented by migratory fish, do it under an implied obligation to keep open sufficient sluices and fish-ways for the passage of the fish in their accustomed seasons, and that every grant to erect such a dam is to be construed as under the same implied condition, unless such implication is excluded by an express provision to that effect. Still the court held that the legislature had the power to regulate the public right, and in view of the fact that the amended charter substituted a new proceeding for the recovery of damages by the owners of the fish rights, and that the same, as assumed by the court, had been executed, the court also held that the amended charter had in it all the elements of a contract executed by one party and binding on the other, and that it was not competent for the legislature, even under the power reserved in a prior general law, to amend, alter, or repeal *any such charter [*519 to require the proprietors of the dam, without any change of circumstances, to construct the fish-ways, which by the terms of the amended charter they had been exempted from any obligation to construct, basing their opinion upon the ground that the right acquired under that provision had become vested by a legitimate exercise of the power granted. Sess. Acts 1831, 613. Vested rights, it is conceded, cannot be de

Litigations upon the subject ceased for a time, but the same questions thirty years later were again presented to the supreme court of the state in the case of Com. v. Essex Co. 13 Gray, 248, in which the opinion of the court was delivered by Chief Justice Shaw, as the organ of the whole court. Special reference is made in that opinion to the prior decisions of the court upon that subject, and all the leading cases here referred to are approved and the propositions decided are reaffirmed, the court 517] announcing the following *conclusions: That from the earliest time the right of the public to the passage of fish in rivers and the private rights of riparian proprietors, incident to and dependent on the public right, have been subject to the regulation of the legislature; that the mode adopted by the legislature, whether by public or private acts, to secure and preserve such rights, has been by requiring, in the erection of dams, such sluices and fish-ways as would enable these migratory fish, according to their known habits and instincts, to pass from the lower to the higher level of the water occasioned by such dam, so that, although their passage might be somewhat impeded, it would not be thereby essentially obstructed. It appears in that case that the company, was duly incorporated with power to construct a dam across the Merrimac river at Lawrence, subject to the condition, among other things, that they should construct suitable fish-ways in their dam for the passage of migratory fish; that they applied to the county commissioners, requesting them, after due notice, to prescribe the mode in which they should construct such fish-ways in their dam; that such notice was given and a hearing had, and that the commissioners did prescribe the mode in which the company should comply with that requirement, and that the company did construct such fish-stroyed or impaired. under such a reserved ways in their said dam according to the mode and plan so prescribed; that the fish-ways, however, as constructed, proved to be unsuitable and insufficient to provide a convenient passage-way for the fish. 8 Special Laws, 470. Circumstances occurring subsequently made it necessary for the company to ask for leave to increase their capital stock, and the legislature, in granting their application, also provided that the company should be liable for all damages occasioned to the owners of fish rights above the dam by the stopping or impeding the passage of the fish up and down the river by the said dam, and that such damages should be assessed by the county commissioners of the county in which such fish rights existed, saving to the respective parties the right to apply 518*] *for a jury to make such assessment in the manner provided for the recovery of damages from laying out highways. 8 Special Laws, 990. Having accepted the amendatory act, the company availed themselves of that provision and caused the damages to the fish rights existing above the dam to be assessed, and they paid the several assessments to the owners of Suppose the rule, however, to be correct, still the same, amounting to the sum of $26;000, "as it is quite clear that it does not control the case damages for hindering or impeding the passage before the court for the reasons given by the of fish by their said dam, with the aforesaid same court in rendering the decree brought fish-ways therein, as previously constructed." here for re-examination by the present writ of

power, but it is clear that the power may be exercised, and to almost any extent, to carry into effect the original purposes of the grant and to protect the rights of the public and of the corporators, or to promote the due administration of the affairs of the corporation. Miller v. New York, ante, 98.

Had it appeared in that case that the amended charter contemplated the assessment of damages for fish rights owned below the dam as well as those owned above the dam, the opinion would certainly be more satisfactory, as in that event the theory assumed by the court that all the parties damaged in their fisheries had been indemnified by the owners of the structure would be correct. Moulton v. Libbey, 37 Me. 484. Fish rights below a dam, constructed without passage-ways for the fish, are liable to be injured by such a structure as well as those owned above the dam, as the migratory fish, if they cannot ascend to the head waters of the stream at their accustomed seasons will soon cease to frequent the stream at all, or in greatly diminished numbers.

error. Passage-ways for the fish had been constructed in that case under the act passed incorporating the company, but they proved to be unsuitable and insufficient, and the court in sustaining the views of the defendants rested their decision upon the ground that the amend520*] ed charter discharged them from the obligation to reconstruct such fish-ways, as the amended charter required them to make compensation for the injuries to the fish rights in the place of their prior obligation arising from the rules of the common law of the state and the terms of their original charter, the court holding that the government could not, without any change of circumstances, require the defendants to do the very acts which, by the terms of the amended charter they had been exempted from doing, but the court declined to decide whether, if the fish-ways provided should prove to be wholly unfit and inadequate to their purpose the legislature could not by further legislation require the company to fulfil the original obligation. Sufficient appears to warrant the conclusion that no evidence was introduced in that case to show that the fish rights below the dam suffered any injury whatever, nor does it appear that the attention of the court was drawn to the fact that the river across which the dam was built runs through more than one state. Moor v. Veazie, 32 Me. 353; Veazie v. Moor, 14 How. 517. Different rules perhaps may be applied in ascertaining the power of a state legislature to authorize permanent obstructions to the free passage of fish in a river flowing through two or more states, like the Connecticut or Merrimac, from the rules which should be applied in a case where the river across which the dam is constructed is wholly within the state which authorizes the structure, but it is not necessary to consider that question in this case, as it was not raised in the state court nor was it presented here by either party.

contemplated the construction of a dam with a convenient passage-way for fish, so as not to impair unnecessarily the rights of the riparian owners either above or below the dam, and that the legislature, if the company failed to fulfil that obligation, may "compel them to do so by more specific legislation." Damages, it is true, were to be paid to "the owners of present fish rights existing above the dam," but the court here in respect to that matter concurs with the state court that the meaning of the sentence is satisfied by regarding it as providing for a partial interruption and injury of those rights and not as contemplating their utter destruction; that the legislature which granted the charter may well have supposed that a dam across the river at that place, with the best fish-way that could be constructed, would, to some extent, obstruct the free passage of the fish, and may have intended by that provision to require the owners of the dam to make compensation for such injuries.

Viewed in any reasonable light, it is quite clear that the charters of the respondents do not contain any stipulation or contract exempt. ing then: from the implied condition annexed to such a grant, not qualified by such a contract, that the corporation in erecting such a dam shall construct suitable and convenient fishways for the free passage of the fish *to [522* the head waters of the river in their accustomed seasons; and that the charter in view of the fact that it contains no such exemption, is subject to the power reserved to the legislature by the general, law, in operation when the charters were granted, that all acts of incorporation shall at all times hereafter be liable to be amended, altered or repealed at the pleasure of the legislature. Such charters being subject to the implied condition to construct suitable fishways for the free passage of the fish, it follows that the corporations are not exempt from that burden, and that the legislature, under the reFish-ways have never been constructed by the served power to amend, alter or repeal the respondents in their dam, and they contend that charter, may pass laws to enforce that duty, as they are not obliged to make any such provision such a law does not impair any contract creatfor the passage of the fish, as their charter does ed by the charter or infringe any right vested in not create any such obligation; but the answer the corporation. Rev. Stat. 366; Penn. College which the complainants make to that sugges- Cases, 13 Wall. 213, 20 L. ed. 553. Charters tion is decisive, that the charter does not con- subsequently granted must be understood as tain any provision exempting them from that standing just as they would if that reservation implied obligation, which arises in every such of the power to amend, alter, or repeal the same case by the common law of that state, unless the had been incorporated into each charter. Milcharter contains some provision which express- ler v. New York, supra. Power to legislate, 521*] ly negatives that *implication. Even founded upon such a reservation, is certainly suppose that is so, still they contend that the not without limit, but it may safely be affirm4th section of the charter of their grantors ed that it reserves to the legislature the aushould be construed as negativing any such im-thority to make any alteration or amendment plied condition, but the court is entirely of a different opinion, as that section makes no provision for any compensation to the owners of the fish rights below the dam, and the record shows that such fish rights, as well as those above the dam, are injured by the obstruction to the free passage of the fish in their accustomed seasons to the head waters of the river. Authority to construct and maintain a dam Such a charter may, doubtless, be granted to without a fish-way, it is conceded, is not grant-build a dam across a river whose whole course ed in terms in the charter, and it may be added that the charter does not contain any words to warrant any such implication. On the contrary, the terms and provisions of the charter are consistent with the theory that the legislature

in a charter granted, subject to it, that will not defeat or substantially impair the object of the grant, or any rights which have vested under it, which the legislature may deem necessary to secure either the object of the grant or any other public right not expressly granted away by the charter. Com. on Fisheries v. Holyoke Co. 104 Mass. 451.

is within the state granting the franchise, with a provision exempting the corporation from all obligation to construct such fisn-way for the free passage of the fish, as the enterprise of erecting a dam to create power to operate mills is

Mr. Causten Browne appeared Feb. 7, 1873, in response to the order of this court in relation to the motion to dismiss the appeal, and read a statement which he submitted to the consideration of the court without argument. Mr. Chief Justice Chase delivered the opinof the court:

so far public in its nature that it is competent | made on May 6, preceding, and to quash the for the legislature to exercise the power of emi- appeal. nent domain to accomplish the purpose, if suit523*] able provision is made to compensate the owners of the property or rights condemned under that power, but it may be more doubtful whether the legislature of a state can make a contract with such a corporation authorizing them to construct a dam across a river flowing through two or more states, which shall perma-ion nently exempt the grantees from all such obligation and destroy forever the rights of fishery in the river throughout its whole course from its source to its confluence with tide-waters. Concede, however, that the power to make such a contract exists, and that it is as boundless as the theory of the respondents assumes it to be, still the court here is of the opinion that the decree of the state court is correct, and that it should be affirmed, as the charter under which the dam in this case was erected and is maintained does not contain any such exemption from the implied obligation to construct fish-ways for the free passage of the fish, nor any provision which prohibits the legislature from imposing that obligation under the power reserved to amend, alter, or repeal

the charter.

Properly construed, neither of the charters affords any support whatever to the theory of the respondents, as they do not contain any semblance of a grant to take and subvert the fish rights below the dam, nor is there anything in the provision requiring compensation to be made to the owners of the fish rights above the dam, which is not perfectly consist ent with the theory that it was incorporated into the charter merely to compensate the owners of such fish rights for injuries which they would suffer from the obstruction, even if the customary fish-ways were constructed as required by immemorial usage and the express enactment of the legislature. Decree affirmed.

BENONI E. GARDNER, Appt.,

v.

GOODYEAR DENTAL VULCANITE
PANY et al.

Collusive suit dismissed.

The original suit in equity was brought by the Goodyear Dental Vulcanite Company against Gardner, to enjoin him from the use of certain patented subjects, belonging, as alleged, to the company, and for an account. The case was heard upon a bill, answer and testimony, and there was a decree in favor of the company in the circuit court for the district of Rhode Island in September, 1870. Upon appeal to this court, the decree below was affirmed on the 6th of May, 1872, but the opinion has not been read.

The defense was conducted by counsel orig. inally employed and paid by Newbrough, under whom Gardner was licensee. On the 1st of July, 1869, before the decree in the circuit court, Newbrough and the company compromised all matters of difference between them, with the understanding that this suit should go on to the final hearing and determination, both in the circuit court and in this court, on appeal, as if the compromise had not been made.

The company, however, paid the counsel employed for the defense as well as for themselves in the circuit court, and subsequently in this

court.

These facts appear from the record and from the admissions of the company, in the 9th article of their answer to the motion to dismiss the appeal. They are the only facts which we think it necessary to notice.

It may be that the company has not become the legal or equitable owner of the opposing interest involved in the suit. There may be, and doubtless are, large opposing interests, of which they are neither the legal nor equitable ownBut it cannot be admitted that one party to a suit can pay the fees of counsel on both COM-sides, both in the court below and on appeal,

1. Where parties to a suit have compromised and settled all differences between them with the understanding that the suit shall go on to a final hearing and determination as if the compromise had not been made, and one party paid the counsel employed for both sides in the circuit court and in this court, the suit is collusive.

2. Where such facts become known to this court after its decision of the case, its decree will be vacated, its mandate to the circuit court recalled, and the motion to dismiss the appeal granted.

[No. 133.]

ers.

without being held to have such control over both the preparation and argument of the cause as to make the suit clearly collusive in both courts. It can make no difference that the counsel fees were charged to the party apparently, though not really, liable to pay them, and payment from the other parties procured through him. This, indeed, is a circumstance against the party who pays the fees rather than in his favor.

The motion to vacate the decree of affirmance, heretofore made, and to dismiss the appeal must, therefore, be granted, and an order made to recall the mandate which has been issued to

Motion Submitted Feb. 7, 1873. Decided Mar. the circuit court. We take occasion, however, 3, 1873.

to say, that we see nothing in the conduct of the counsel who actually represented the comUnit-pany which merits blame, or which ought to affect in any degree the high esteem in which they have been held. Neither of them appears to have had any knowledge of any arrangements made by their client with the opposing party.

The facts of the case are stated by the court. Oct. 29, 1872, motion was filed by Mr. J. S. Black to set aside the decree of affirmance

WILLIAM B. DUNCAN et al., Appts.

v.

MARY T. B. JAUDON,

and

NATIONAL CITY BANK, Appt.,

v.

MARY T. B. JAUDON.

(See S. C. 15 Wall. 165-177.)

Trustees, for what accountable-rights of cestui que trust-stock pledged by trustee-notice of trust.

1. Where the trustees under a will, in making investments, depart from the rule prescribed by the testator, the right of action of the cestui que trust for an illegal disposition of the property thus substituted, is not affected by reason of this departure.

duty than that of ascertaining whether the power to sell and buy securities, ordinarily attending the title to such securities had been, in this case, lawfully withheld from the trustee by the terms of the trust.

Ashton v. Bk. 3 Allen, 217; Lowry v. Bk. Maryland Circuit, 1848, reported 3 Bank. Mag. 2111; Albert v. Bk. supra, S. C. 2 Md. 160; Atkinson v. Atkinson, supra; Perry, Trusts, § 225; Ins. Co. v. Austin, 42 Pa. 257; Dodson v. Simpson, 2 Rand. 294; Garrard v. R. Co. 29 Pa. 154; Tillinghast v. Champlin, 4 R. I. 173; Field v. Schieffelin, 7 Johns. Ch. 160; McLeod v. Drummond, 14 Ves. 353; Gray v. Johnson, L. R. Eng. & Irish App. Cas. 1; Shaw v. Spencer, 100 Mass. 382. While, in the case of executors, the law implies the power to dispose of the personal assets, and a purchaser may as a rule assume its existence without inquiry; and while, in the case of strict trustees, where the purchaser has notice of the existence of the trust, it may be necessary for him to ascertain that the power of sale has not been withheld by the terms of the trust; nevertheless, unless it has been withheld and the trustee is therefore unable to sell without committing a breach of trust, the principles of law which govern both cases are, from Argued Jan. 28, 1873. Decided Mar. 3, 1873. that point forward, identically the same, and

him.

2. Where a trustee holding stock, declared on its face to be in trust for his cestui que trust, pledged the same for a loan of money to himself, the cestui que trust may compel the lender to pay the proceeds of such stock as pledged and sold by 3. The party taking such stock on pledge, deals with it at his peril; for there is no presumption of a right to sell it, as there is in the case of exec4. Notice of the trust communicated to the cashier of the lender when he received the stock binds the lender.

utors.

[Nos. 108, 109.]

APPEALS from the Circuit Court of the are so treated in all the authorities.

United States for the Southern District of New York.

The bill in each of these cases was filed in the court below by the appellee, to reach the proceeds of certain trust property. The decree having been entered in her favor, the respond ents in each case took an appeal to this court. The facts are fully stated by the court. Messrs. W. W. McFarland and Wm. Arnoux, Rich & Woodward, for appellants: The defendants are bona fide pledgees of this stock, which they received as security for a loan made at the time.

similar transactions with executors, guardHence, the foregoing authorities touching they contain of the principle embraced in the ians, etc., selected for the clear exposition which proposition.

In cases where it is the duty of the purchaser to inquire into the trustee's power to sell, and he finds that he possesses this power, and may sell, without by the act of sale comH.mitting a breach of trust, he has the right to presume, as the law presumes, in favor of honesty and against fraud. Broom, Leg. Max. 911.

The application was made for a loan upon so many shares of the stock of the Delaware & Raritan Canal Company. The certificates of stock were not produced, nor was any notice given that the stock was held in trust.

The defendants, knowing the security to be adequate, agreed to make the loan, and gave the necessary instructions to a clerk, who subsequently, as a mere matter of business routine in carrying out their agreement that had already been made, received the certificates.

Upon this state of facts the defendants are not to be charged with even constructive notice of the existence of this trust.

Lowry v. Bk. Md. Circuit, 1848, reported 3 Bank. Mag. 2111; Albert v. Bk. 1 Md. Ch. Dec. 408; S. C. 2 Md. 160; Atkinson v. Atkinson, 8 Allen, 15.

There are a few cases in which the purchaser is bound to see to the application of the purchase money. To this class the foregoing observations are of course inapplicable; but to this class the case at bar does not belong.

A pledge of mortgage stands upon the same footing and is governed by the same principles as a sale, it being but a part execution of the larger power, and the exercise of which may be just as beneficial to the beneficiaries.

Petrie v. Clark, 11 Serg. & R. 388; Miles v. Dernford, 2 Sim. (N. S.) 234; Russell v. Plaice, 18 Beav. 21; Ins. Co. v. Austin, 42 Pa. 263; Ashton v. Bk. 3 Allen, 217.

Messrs. Theron R. Strong and Shepard, for appellee:

The defendants were legally chargeable with notice and knowledge that the defendant, Samuel Jaudon, held the Delaware & Raritan Canal Company stocks as trustee for the complainant, and that the pledge or hypothecation thereof by him to them respectively, as collateral security for the payment of the loans by them to him, was a breach of his trust; hence, they became accountable severally, for the stock they severally received, to the complainant, and the sale of the stock by them respect

Assuming, for the purposes of the argument, that the defendants are to be charged with constructive notice that the stock in question was held subject to some trust, from the circumstance that the word "trustee" appeared upon the face of the certificates, it is submitted that such notice cast upon the defendants no other NOTE--Purchaser of trust estate with knowlively was a wrongful conversion of the same to edge of the trust is subject to all the duties of trustee see note to Wormiey v. Wormley, 5 L. ed. U. S. 651; note to Hughes v. Edwards, 6 L. ed. U. 8. 142; and note, 2 L. R. A. 481.

their own use.

The certificates showed upon their face that the defendant, Samuel Jaudon, held the stock

as trustee for the complainant; which was no- | tice to them of the ownership of the stock by her; and that pledging it as collateral security for the loans was a violation by the trustee of his trust.

It was at least notice to them of the complainant's right sufficient to put them upon inquiry and to charge them with knowledge of what they would readily have learned upon fair inquiry.

Johns. Ch. 150; McLeod v. Drummond, 17 Ves. 152; Pendleton v. Fay, 2 Paige, 202; Hill v. Simpson, 7 Veş. 152.

A very recent case which received elaborate examination by counsel and court, and which strongly supports the position on the part of the complainant in this case, is Shaw v. Spencer, 100 Mass. 382.

The cases in the law of partnership, as to attempts by one partner to pledge the responsibility of the firm for his own individual debt, and as to what is notice to the party dealing with him of the wrongful act, are in point in this case.

Mr. Justice Davis delivered the opinion of the court:

Upon such inquiry they would have learned from the will the nature of the trust; from the complainant, that the stock belonged to the trust; that no loans were wanted for the trust; that the loans applied for were desired for per- Wilson v. Williams, 14 Wend. 146; Joyce v. sonal unofficial purposes of Samuel Jaudon; Williams, 14 Wend. 141; Bk. v. Cameron, 7 and the same facts would have been learned on Barb. 153; Elliott v. Dudley, 19 Barb. 326; inquiring of Samuel Jaudon; from which the Austin v. Vandermark, 4 Hill, 259; Fielden v. conclusion would be inevitable and apparent | Lahens, 6 Abb. Pr. (N. S.), 341; Bk. v. Bradthat such use of the stock would be in violation ncr, 43 Barb. 379. of the trust. In support of these propositions, see Lowry v. Bk. 4 Cir. Md. 6 West Law J. 121; The Ploughboy, 1 Gall. 41; Carr v. Hilton, 1 Curt. 390; Hinde v. Vattier, 1 McLean, 110; Dexter v. Harris, 2 Mass. 531; Oliver v. Piatt, 3 How. 333; Bk. v. Seton, 1 Pet. 299; Wormley v. Wormley, 8 Wheat. 421; Garrard v. Railroad Cc. 29 Pa. 158; Jaques v. Weeks, 7 Watts, 266; Epley v. Witherow, 7 Watts, 163; Hill v. Epley, 31 Pa. 331; Field v. Schieffelin, 7 Johns. Ch. 150; Swarthout v. Curtis, 5 N. Y. 301; Anderson v. Van Alen, 12 Johns. 343; Pendleton v. Fay, 2 Paige, 202; Baker v. Bliss, 39 N. Y. 70; McLeod v. Drummond, 17 Ves. 152, and particularly the observation of the Lord Chancel-pay the interest on the investment to her during lor Eldon, p. 170; Bayard v. Bk. 52 Pa. 232; Petrie v. Clark, 11 Serg. & R. 377; Shaw v. Spencer, 100 Mass. 382.

Such a case is very different from that of an executor, administrator or guardian, having general authority to sell the property, borrow money on the pledge of it for the purposes of his trust, etc.; or the case of any trustee having extended general authority by the terms of the trust. Dealings by trustees of the latter character having prima facie authority for their acts would not in many cases be notice to the other parties of the future trust, where, in the case of trustees with more limited and re stricted authority, it would be otherwise. The distinction is recognized and applied in many cases. The case of Bayard v. Bk. 52 Pa. 232, presents this distinction forcibly, and besides is in point in support of the present case generally. Ashton v. Bk. 3 Allen, 217, is a case on the other side of the line of distinction suggested. This decision turned upon the "very broad and general power" vested by the will in the trustee. In Petrie v. Clark, 11 Serg. & R. 377, which is cited in support of the general doctrine claimed by the complainant as to a breach of trust and notice thereof, Gibson, J., says: "The later cases have gone much further in circumscribing the executor's authority over the assets, and with great propriety; very far to overrule Lord Hardwicke's decisions, that an assignee of the assets for his own debt cannot be disturbed, except on specific evidence of actual and positive collusion.

The object of these suits is to reach the proceeds of certain trust property which, it is charged, was disposed of by Samuel Jaudon, the trustee, in violation of his trust, to the advantage and gain of the plaintiffs in error. The trust in question had its foundation in the will of Commodore Bainbridge, who died in Philadelphia in 1833. Among other things, the testator directed certain trustees, whom he named, to invest a portion of his estate in trust for his daughter, the complainant below; to

her natural life, and at her death to divide the property equally between her children. These trustees, at their own request in 1835, were discharged from the duties of their appointment by the court of common pleas of Philadelphia, and Samuel Jaudon appointed in their stead. The trustee thus substituted received at the time of his appointment, with other effects of the estate, certain state bonds which he sold and invested the proceeds in the stock of the Delaware & Raritan Canal Company. One hundred and seventeen shares of this stock were appropriated to the use of this appellee, and stood upon the books of the company in the name of Samuel Jaudon as her trustee, and certificates for said shares, showing on their face that this was so, were issued and delivered to him, and the dividends, for a long period of time, were regularly paid by him to the cestui que trust.

At different times during the years 1865, 1866, 1867, these shares of stock were pledged as security for loans obtained by Samuel Jaudon from the appellants in these cases, on his own private account, and were afterwards sold by them to extinguish this private indebtedness. The legality of these respective transactions form the subject-matter of these suits.

It is too plain for controversy that Samuel Jaudon committed a gross breach of trust in allowing the shares of stock to be disposed of and applied in the manner they were; but as he is insolvent, and the specific property cannot be reclaimed, the inquiry arises whether the appellants, with whom the shares were pledged Those decisions of Lord Hardwicke have not and for whose benefit they were sold, or the been questioned in other cases, and are mani-cestui que trust, shall bear the loss occasioned festly not law. by his misconduct.

See, the cases cited in Field v. Schieffelin, 7

It is argued that the appellants bear a differ