veyors, &c., have no such lien, except, it may be, in some special case (a); and the law is so settled, notwithstanding an express declaration by the settlor that the trustee shall in the first place pay the expenses of the trust, and though the trustees themselves be charged to be insolvent in every deed is implied a direction to pay the costs and expenses, and expressio eorum quæ tacite insunt nihil operatur: it would be a mischievous principle to hold, that every person with whom the trustees had incurred a just and fair demand might sue the trustees, and come for an account of the whole administration (b). And, vice versa, the agents of the trustees are accountable to their employers only, the trustees, and not to the cestuis que trust (c); unless they have not confined themselves to the duties of agents, but by accepting a delegation of the whole trust have themselves become trustees by construction of law (d).

If the trust estate fail, it seems the trustees may then file a bill against the cestui que trust to recover from him personally the amount of the money expended (e).

III. It remains to consider the subject of the costs of trustees incurred in legal proceedings.

1. The general rule is, that a trustee or executor shall have his costs, though not his costs charges and expenses (f), awarded him at the hearing out of the trust

estate (g). And if there be a fund under the control of the Court, but not otherwise (h), he will have his costs as between solicitor and client (i). But the executor or trustee will not be allowed without question whatever sum by way of costs he thinks fit himself to pay his solicitor; for, the bill, though not submitted to a regular taxation, will be moderated in the Master's office by a deduction of such charges as may appear irregular and excessive (j).

Even where the trustee did not appear at the hearing, and a decree nisi was made against him, and the trustee set down the cause again, and prayed to have his costs of the suit upon his paying the costs of the day, Lord Kenyon said, "The payment of the costs of the day makes the trustee rectum in curia; and as he would most unquestionably have been entitled to his costs if he had appeared at the original hearing, so he now stands in the same situation, and is therefore entitled to his costs (k).” But if the decree has been passed, a trustee who has omitted to ask for his costs at the hearing cannot have the cause reheard upon the subject of costs only, and cannot obtain an order for payment of his costs upon presenting a petition (1).

(g) 1 Eq. Ca. Ab. 125 note (a); Hall v. Hallet, 1 Cox, 141, per Lord Thurlow; Attorney-General v. City of London, 3 B. C. C. 171; Norris v. Norris, 1 Cox, 183; Sammes v. Rickman, 2 Ves. jun. 38, per Lord Chief Baron Eyre; Rashley v. Masters, 1 Ves. jun. 201; Rocke v. Hart, 11 Ves. 58; Maplett v. Pocock, Rep. t. Finch, 136; Landen v. Green, Barn.

389; Taylor v. Glanville, 3 Mad. 176; &c.

(h) Edenborough v. The Archbishop of Canterbury, 2 Russ. 112.

(i) Mohun v. Mohun, 1 Sw. 201, per Sir T. Plumer.

(j) Johnson v. Telford, 3 Russ.

477.

(k) Norris v. Norris, 1 Cox, 183. (1) Colman v. Sarell, 2 Cox, 206.

If a person named as trustee be made defendant to a suit, and by his answer disclaim the trust, the bill will be dismissed as against him with costs, but not with costs as between solicitor and client; for, having refused to accept the office, he stands in the light of any ordinary defendant (m).

In the case of two or more trustees, each of them may employ a separate solicitor, and put in a separate answer, and will each have his costs; for, as they are separately responsible, they cannot be obliged to repose confidence in the same person (n).

2. If any particular instance of misconduct, or a general dereliction of duty in the trustee (o), or even his mere caprice and obstinacy (p), be the immediate cause why the suit was instituted, the trustee, on the charge being substantiated against him, must pay the costs of the proceedings his own improper behaviour has occasioned. And where two executors had kept large balances in their hands for a great length of time, and one

(m) Norway v. Norway, 2 M. & K. 278, overruling Sherratt v. Bentley, 1 R. & M. 655.

(n) See Reade v. Sparkes, 1 Moll. 10.

(0) Attorney-General v. Hobert, Rep. t. Finch, 259; Earl Powlet v. Herbert, 1 Ves. jun. 297; Caffrey v. Darby, 6 Ves. 488; Littlehales v. Gascoyne, 3 B. C. C. 73; Ashburnham v. Thompson, 13 Ves. 402; Hide v. Haywood, 2 Atk. 126; Adams v. Clifton, 1 Russ. 297; Mosley v. Ward, 11 Ves.

581; Piety v. Stace, 4 Ves. 620; Seers v. Hind, 1 Ves. jun. 294;

Fell v. Lutwidge, Barn. 319, see 322; Brown v. How, Barn. 354, see 358; Sheppard v. Smith, 2 B. P. C. 372; Haberdashers' Company v. Attorney-General, 2 B. P. C. 370; Franklin v. Frith, 3 B. C. C. 433; Whistler v. Newman, 4 Ves. 129; Stacpoole v. Stacpoole, 4 Dow. 209; Crackelt v. Bethune, 1 J. & W. 586.

(p) Taylor v. Glanville, 3 Mad. 178, per Sir J. Leach; Jones v. Lewis, 1 Cox, 199; Earl of Scarborough v. Parker, 1 Ves. jun. 267.

of them had become insolvent, the Court decreed each of them to be liable for the costs of the whole suit (q).

But where a bill was filed charging the trustee with a breach of trust both as to realty and personalty, and the charge failed as to the former but succeeded as to the latter, the Court said, it was scarcely possible to suppose that the trustee should be permitted to have his costs, but it would be injustice to make him pay the whole costs, as one part of the bill had failed (r).

Trustees for sale had purchased in the name of a trustee at an under value, but without any imputation of fraud, and by auction. As to so much of the suit as related to calling upon the trustees to submit to a resale, and the directions consequential thereon, the Court gave relief against the trustees with costs; but, as to the accounts that must have been taken had the sale been unimpeachable, the trustees were allowed their costs (s).

If the suit was occasioned by the mistake, or some slight neglect of the trustee, the Court will content itself with not giving him costs (t), or will punish him with payment of part of the costs only (u), or will even give him his costs (x).

3. If the bill filed did not originate from any necessity of inquiring into the conduct of the trustee, but in the

course of the proceedings instituted upon other grounds it appears the trustee has in some particular instance been guilty of a breach of trust, the Court will not award against the trustee the costs of the whole cause, but only of so much of it as connects itself with his misconduct, and as to the rest of the suit will allow him his costs (y).

An executor, instead of accumulating a fund as directed by the will, had improperly kept the balance in his hands; but, as the amount of costs had in great measure been occasioned by the inquiry what rule the Court ought to adopt with respect to the computation of interest, it was thought hard under the circumstances to fix the executor with payment of costs even relatively to the breach of trust; and therefore the Court gave no costs (z).

As to one part of the suit, the trustee ought from his misconduct to have paid the costs, and, as to another, to have been allowed his costs; and the Court, by a kind of compromise, left each party to pay his own costs (a).

Where the breach of trust is very trivial, the Court may overlook it altogether, and give the trustee hist whole costs (b).

4. If a trustee have a private interest of his own separate and independent from the trust, and oblige the cestui que trust to come into a court of equity merely to have some point relating to the trustee's private interest determined at the expense of the trust, that is such a

(y) Tebbs v. Carpenter, 1 Mad. 290, see 308; Newton v. Bennet, 1 B. C. C. 359.

(z) Raphael v. Boehm, 13 Ves.

(a) Newton v. Bennet, 1 B. C. C.

362.

(b) Fitzgerald v. Pringle, 2 Moll.

534.