Balsh v Hyham
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1728 |
| Date | 01 January 1728 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 810
LORD CHANCELLOR KING.
Referred to, Fraser v. Murdoch, 1881, 6 App. Cas. 872.
810 BALSH V. HYHAM 2 P. WMS. 453. [453] db teem. pascsle, 1728. Case 143.-balsh versus hyham. [1728.] [Referred to, Eraser v. Murdoch, 1881, 6 App. Gas. 872.] Lord Chancellor King. 2 Eq. Ca. Ab. 741, pi. 8. A. who is a trustee for B. of 1000 South-sea stock, at the desire of B., borrows 4000 on this stock of the Company, and B. receives the money, A. pays the 10 per cent, upon the late act to be discharged of the loan; though B. forbade the payment, yet he is liable. The plaintiff was a trustee for the defendant of 1000 South-sea stock, and at his desire in 1720, borrowed of the company 4000 on a mortgage of the stock; the defendant the cestui que trust received the money borrowed; afterwards the act of parliament (7 Geo. 1, sess. 2, sect. 7) was made, which provided, that if any of the borrowers would pay to the company 10 per cent, before such a day, they should be discharged of the rest of the money borrowed. The defendant the cestui que trust directed the trustee not to pay the 10 per cent., alleging that he thought the borrowers were not obliged to pay to the company the money borrowed, but that it was in the election of the borrowers to forfeit the pledge. There were some attempts to prove an agreement by the plaintiff the trustee and others to pay the money borrowed in [454] compassion to the defendant the cestui que trust, and in regard to the losses by him sustained, but that proof was deficient. The plaintiff who had thus mortgaged his stock to the company, and had permitted the defendant to receive the money, paid the 10 per cent, and brought a bill in equity to recover it as laid out for the defendant. Whereupon for the defendant it was insisted, that this was an officious payment of the 10 per cent, against his express directions, which (as the defendant's counsel objected) was not recoverable at law; for the act of parliament, had the money been recoverable there, would have given to the company more than 10 per cent, for the money borrowed, or at least would have made it compulsory upon the borrower to have paid this 10 per cent.: and although there had been a verdict at the suit of the company against one of the borrowers, yet that was not against the defendant: it was res inter olios acta, and might have been recovered on a faint defence, and therefore ought not to be any evidence against the defendant...
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