Trutch v Lamprell
| Jurisdiction | England & Wales |
| Judgment Date | 24 January 1855 |
| Date | 24 January 1855 |
| Court | High Court of Chancery |
English Reports Citation: 52 E.R. 546
ROLLS COURT
[116] tkutch v. lampbell. Jan. 24, 1855. Two trustees having properly sold out trust money, one of them handed the cheque for the proceeds to the other, who misapplied it. Held, that they were both liable. It is a contradiction in terms to say that a trustee who acts is not an active trustee, and a defence by a trustee, that he only acted for conformity's sake, is unavailing. The Plaintiff, Caroline Agnes Trutch, was entitled, subject to the life interest of her mother, to one moiety of a sum of 1763, 3s. 7d. consols, standing in the names of two trustees, Lamprell and Holmes. Her mother, who had assigned her life-estate to secure 640, proposed absolutely to assign her life interest to the Plaintiff, and that the Plaintiff should pay off the mortgage out of the proceeds of the sale of a moiety of the stock, which would then belong to her absolutely in possession. The Plaintiff assented, and on the 25th of July 1853 an absolute assignment was executed to the Plaintiff. On the same day, Lamprell and Holmes, the trustees, at the Plaintiff's request, sold out one moiety thereof, and out of the proceeds paid the mortgage, leaving a balance of 193. For this sum another cheque was drawn by the stockbroker, and put into the hands of Holmes, who handed it over to Lamprell, on a suggestion by the latter, that he had claims against the Plaintiff, which he would first settle, and then hand over the balance to her. Lamprell, having obtained the cheque, applied it to his own use. He claimed to retain the greater part of it for sums amounting to 138, for which he alleged the Plaintiff was liable to him ; but, except 43, th e Plaintiff repudiated 20BEAV. 117. ATTORNEY-GENERAL V. MOOR 547 the whole demand. The Plaintiff, being unable to obtain payment, filed her bill against Lamprell and Holmes, for an account and payment. The case came on upon motion for a decree, Lamprell, [117] having disappeared, the question argued was as to the liability of Holmes. The evidence, as to the circumstances connected with the delivery of the cheque for the 193, was contradictory, but the trustees failed to establish that the Plaintiff had concurred. Holmes, by his answer, stated that he had become a trustee at the Plaintiff's request, and on the understanding that he was to have no trouble or responsibility in carrying out the trusts, which were to be borne by Lamprell. Mr. R. Palmer and Mr. C. T. Simpson, for the...
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