adhere to this opinion: and, upon this appeal, my order is * 421 that, as against Smith & Co., it stand over for one year, * with liberty for the plaintiff to bring such action as he may be advised upon the contract of indemnity in the bill mentioned; but, as to the rest of the bill, the decree must be affirmed.

The appeals of Smith & Co. and of Reynell may be disposed of together, as both depend upon the question how far Smith & Co. acted as solicitors for the plaintiff: for this purpose I have looked through the pleadings and proofs, and think it clearly established that they did so act. No company was ever formed; but, certain individuals wishing to establish a company, at the suggestion, it appears, of Smith & Co., employed Messrs. Smith & Co. for that purpose. That they acted for that purpose as solicitors, and were subject to all the responsibilities attaching to such employment, cannot be disputed; but for whom were they so acting? Not for any company, for none was ever formed; obviously, therefore, for those who employed them in their individual character, though for the purpose of establishing a company; but of them the plaintiff was one, and as such entitled to all the protection against the acts of his solicitors, which any other client is entitled to. The injunction, therefore, was, I think, properly ordered; and the costs of the suit, so far as it related to such injunction, properly given.

But in both these appeals a question is raised as to the costs of a motion for an injunction, which was refused, but the costs reserved; and, by the decree, those reserved costs are ordered to be paid by these two defendants. I before stated my objection to this course of proceeding; but it is merely a question of costs, and if there had not been other matter introduced into the appeal it could not

have been supported upon that ground alone. Now, being of * 422 opinion that * the appeal must be supported upon such other matter, it rests solely upon the reserved costs of the motion; but I am not absolutely precluded by the practice of the Court from correcting what I conceive to be an error as to the costs of the motion, though it would be unjust to permit them to affect the costs of the appeals. I propose, therefore, to affirm the decree as to these two appellants, striking out the direction for payment of the reserved costs of the motion, but making the appellants pay the costs of the appeals.

1 See 2 Dan. Ch. Pr. (4th Am. ed.) 1600; Waring 4. Manchester, &c., Railway Co., 14 Jur. 613, 616, V. C. W.; Jones v. Batten, 10 Hare App. 11.

STYLES v. GUY.!

1848. November 11. 1849. November 10.

Two of three executors, with the knowledge that there were unsettled accounts subsisting at the testator's death between the testator and their co-executor in respect of which they had reason to believe that the latter was considerably indebted to the estate, took no effectual steps to compel him to account and pay or secure the balance due for several years after the trustees' death, at the end of which he became bankrupt. The solvent executors being unable to prove that an attempt to recover the money at an earlier period would have been fruitless, were decreed to make good the loss, as having been occasioned by their wilful neglect and default.2

It is the duty of executors, no less than of trustees, to keep a check upon each other's conduct, and an executor is equally chargeable with neglect in allowing a part of the estate to remain outstanding in an improper state of investment, whether the party in whose hands it is so outstanding be a co-executor or a stranger.3

Under a decree against executors for the common accounts, each is chargeable only with his actual or constructive receipts; and, therefore, in such a suit an executor will escape liability, by showing either that he has been wholly passive, or that he has only acted so far as it was necessary to enable his coexecutor to administer the estate; but secus where he is sought to be made liable for wilful neglect and default. [p. 434, note.]

THIS was an appeal from part of an order of the Vice-Chancellor of England, on exceptions and further directions, whereby the appellants, who were two of the executors of a testator, were ordered to make good, with interest at four per cent from the testator's death, a large sum of money which their co-executor, who had been agent to the testator, had retained in his hands for six years after the testator's death, and which had been eventually lost by his becoming bankrupt.

*423

*The plaintiffs were a daughter of the testator, who was entitled for life, and her children, entitled in remainder to a share, of his residuary estate. The suit was commenced in the Exchequer, and was heard before Lord LYNDHURST C. B., (a) who (a) See 4 Y. & C. 572.

1 S. C., 1 H. & T. 523; 16 Sim. 230.

2 See 3 Lead. Cas. in Eq. (3d Am. ed.) [725, 752]; Scully v. Delany, 2 Ir. Eq. 165; Egbert v. Butter, 21 Beav. 560; West v. Jones, 1 Sim. N. S. 205; Hengst's Appeal, 24 Penn. St. 413; Weigand's Appeal, 28 Penn. St. 471; 2 Story Eq. Jur. § 1284.

3 See Clark v. Clark, 8 Paige, 153; Wayman v. Jones, 4 Md. Ch. Dec. 500; Jones's Appeal, 8 W. & Serg. 143.

was of opinion that a primâ facie case of liability was established against the solvent executors, but at their request directed certain inquiries suggested by their answer. These inquiries, with the findings of the Master upon them, and the other facts and circumstances of the case are sufficiently detailed for the purpose of this report in the Lord Chancellor's judgment.

On the hearing of the appeal,

Mr. Stuart, Mr. James Parker, and Mr. Heathfield appeared for the two solvent executors (the appellants).

Mr. Bethell, Mr. Rolt, and Mr. Pittman, for the plaintiffs.

Mr. Lloyd, Mr. Bevir, and Sir W. Riddell, for other parties in the same interest.

1849. November 10.

THE LORD CHANCELLOR. The facts of this case, so far as necessary to be considered in deciding the question upon the appeal, are as follows: The testator had been accustomed for many years, and up to the time of his death, to employ Anthony Guy, a solicitor, not only in his professional capacity, but as agent in the management of his pecuniary affairs, much in the character * 424 of a banker. He left large sums of money in his hands, not as incidental to his employment of a solicitor and agent, but upon loan at interest without security, and simply upon his notes or accountable receipts, the whole balance at the time of the testator's death amounting, as the Master's report finds, to 12,9817. 5s. 4d.

*

The testator appointed this Anthony Guy and Richard Tuckey the younger, the testator's nephew, and Richard Tuckey, one of his sons, executors and trustees of his will. The will does not take any notice of the testator's connection with Anthony Guy, or of the debt due from him, but it directs the executors as soon as conveniently may be after his decease, to sell and convert into money all such parts of his property as should not consist of moneys, or securities for money, and to call for, receive, and get in all such part or parts thereof as consisted of book debts or securities for money not approved of by them; and, after directing them to retain 501. each as a small compensation for their trouble, and

directing the payment of his debts, he gave one-seventh part of the residue to his son Richard, and directed his executors to place out and invest the remaining six-sevenths in or upon any of the parliamentary stocks or funds, or on real securities in England: and one of these six-sevenths he gave to each of his children and their families (the particulars of which it is not material to state, as infants were interested in all these shares, which, so far as the capital is concerned, excludes all question as to acquiescence, on the part of the cestui que trusts of the capital, in the devastavit for which compensation is sought in this suit). He also directed that all advances made by him to any of his children should be taken as part of their shares.

The testator died in September, 1823. All the three executors proved; but Anthony Guy appears to have principally acted in the trusts of the will.

米

*The correspondence shows that no one of the family * 425 interested under the will or of the executors was acquainted with the actual state of Anthony Guy's account with the estate : but that he had large funds belonging to that estate in his hands. must have been known, several of the tenants for life applying to him for and receiving from him payment on account of what was coming to them, and he having, in December, 1825, paid Richard Tuckey, the son, 32007.

The family soon became impatient at their not being able to ascertain the state of the testator's property, but do not appear to have entertained any suspicions of the solvency of Anthony Guy. The letters show that Richard Tuckey, the son, so early as the 11th January, 1825, applied to Anthony Guy, and pressed him for a settlement of the testator's affairs. Applications for this purpose were often repeated by the co-executors, and by different members of the family, but were always avoided by Anthony Guy, until the original bill in this cause was, in March, 1829, filed by Joanna Stiles, one of the testator's daughters, and her children. On the 23d July, 1829, an order was made upon Anthony Guy's answer, for payment into Court by him of 61007., on account of the testator's estate on or before the 6th November, and that time was afterwards, without the knowledge of the co-executors, enlarged by an order of 12th November, 1829, to the 18th January, 1830; but, on 22d November, 1829, Anthony Guy, being insolvent, absconded, and was soon afterwards declared a bankrupt, and, in November,

1830, a supplemental bill was filed, stating the case (a) against his co-executors.

* 426

*By the original decree of the Exchequer in 1832, the usual accounts were directed to be taken, and it was referred to the Master to inquire,

1st. Whether any of the adult parties had acquiesced in the debt due from Anthony Guy at the time of his death not being called in.

2d. Whether, if Richard Tuckey, the son, had taken measures to call in that debt, it might or could have been recovered, and, 3d. Whether the enlargement of the time for paying the 61007. into Court had been ordered without the knowledge or consent of Richard Tuckey the younger and Richard Tuckey the son; and whether, if such enlargement had not taken place, the money might or could have been recovered?

The first inquiry the Master answered in the negative, finding that none of the adult parties acquiesced in the debt due from Anthony Guy to the testator at the time of his death not being called in.

This was the only part of the Master's findings disputed by exceptions, which asserted the affirmative. These exceptions the Vice-Chancellor overruled, and I think most properly.

*427

*The acquiescence to be inquired into could only consist of what would be tantamount to an approval of the debt due from Anthony Guy remaining in his hands; whereas the evidence and correspondence prove that all parties were kept in ignorance as to the state of the account between Anthony Guy and the estate, and that all were anxious and earnestly pressed for a statement and settlement of this account. It is true that it appears that the parties were aware that large sums were in his hands, and that they received on account of their life income various sums of money from Anthony Guy, and to this extent the (a) The case so stated was, - That the Tuckeys were privy to and authorized the receipt of various sums of money, part of the personal estate of the testator by Anthony Guy, and that they well knew that a very large sum of money was at all times due from him to the testator's estate, and was retained by him without any sufficient security for the same, and that they acquiesced in and permitted such retainer by him, and thereby became responsible for the whole balance due from A. Guy at the time of his bankruptcy; and the bill, which was supplemental as against the assignees and Guy, prayed that the Tuckeys might be made liable accordingly.