Jones v Foxall
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1852 |
| Date | 01 January 1852 |
| Court | High Court of Chancery |
English Reports Citation: 51 E.R. 588
ROLLS COURT
S. C. 21 L. J. Ch. 725. See Vyse v. Foster, 1872-74, L. R. 8 Ch. 333; L. R. 7 H. L. 318.
588 JONES V. FOX ALL WBBAV.i [388] jones v. foxall. Jan. 27, March 29, 1852. [S. C. 21 L. J. Ch. 725. See Vyse v. Foster, 1872-74, L. B. 8 Ch. 333; L. E. 7 H. L. 318.] Principles on which, in cases of breach of trust, trustees are charged with simple and compound interest, and with the profits made in the investment of trust money in trade. Generally, an executor improperly retaining balances, is charged with interest at four per cent.; but if, in addition, he commits a breach of trust, or changes money from a proper into an improper state of investment, he is charged five per cent. If he employ the trust money in trade, he will be charged either with the profits, or five per cent, compound interest. From 1834 to 1850 a trustee, who ought to have withdrawn a trust fund from a trading firm, of which he was a member, neglected to do so. He was charged with compound interest at five per cent., and with costs. Letters written " without prejudice " cannot be used in evidence of admissions. The practice of attempting to do so disapproved of. The facts of this case were shortly these: Previously to the marriage of Anit Minchin, the mother of the Plaintiff, in June 1830, a sum of 350 had been lent by her to the banking firm of Thomas Clarke & Co. on interest at five per cent, per annum. In June 1830, on the marriage of the father and mother of the Plaintiff, this sum of 350, being the debt due from the banking firm, with interest at five per cent, per annum, together with certain stock-in-trade, was assigned to Charles Chamberlaine and the Defendant Joseph Foxall upon trust, to stand possessed thereof for the sole and separate use of the mother for her life, and subject to a power of appointment (which did not appear to have been exercised), and, after her decease, in trust for any child of the marriage. The settlement provided that the trustees should call in the debt of 350 during the life of the mother, whenever they should be requested by her, by any note in writing, to do so; and after her decease, the settlement made it imperative upon the trustees, without any request or application from anyone, to call in this sum of 350, and the interest due on it, and to invest [389] the amount in Government or real securities, upon the trusts of the settlement. The mother received the interest during her life, and never required the money to be got in. She died on the 15th of November 1834, leaving the infant Plaintiff, her only child ; and since then no step had been taken till this bill was filed in. January 1860, either to get in the money or to receive the interest. The manner in which the Defendant Foxall became connected with this trust fund was as follows: When the settlement was executed in 1830, the firm of Thomas Clarke & Co. consisted of Thomas Clarke, Francis Clarke, and the Defendant Joseph Foxall; the sum of 350 was therefore, at that time, a debt due from himself and his co-partners, jointly and severally. This continued to be the state of the case till the month of October 1847, when Thomas Clarke died ; and Francis Clarke and the Defendant Foxall continued to carry on the partnership till the beginning of the year 1850, a fortnight before this bill was filed, when it was finally dissolved. In March 1836 Charles Chamberlaine, having taking no step to get in and invest the money settled, retired from the trust, and Thomas Wilson was appointed co-trustee with Foxall...
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...of Trust”(1918) 34 LQR 168. 9 See Jamie Glister, “Breach of Trust and Consequential Loss”(2014) 8 J Eq 235 at 235–238. 10Jones v Foxall(1852) 15 Beav 388 at 393; (1852) 51 ER 588 at 590; see also Robert Chambers, “Liability” in Breach of Trust (Peter Birks & Arianna Pretto eds) (Oxford: Har......
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