II. Of the remedy against the trustee personally by way of compensation.

262; and see Pulteney v. Warren, 6 Ves. 89; University of Oxford v. Richardson, Ib. 701; Grierson v. Eyre, 9 Ves. 346; but see Garth v. Cotton, 1 Dick. 211; Lee v. Alston, 1 B. C. C. 194.

Although where a remedy lies at law an account cannot be had in equity against the pernor of the profits himself, yet, perhaps, after his decease, if the action survive at law against the executor, the party entitled to the profits may consider himself a creditor, and file a bill in equity for an account of the assets. Monypenny v. Bristow, 2 R. & M. 117 (but the bill also prayed delivery of title deeds); Gardiner v. Fell, 1 J. & W. 22 (but the plaintiff was also an infant).

Where, as in the preceding cases, a court of equity assumes a concurrent jurisdiction with courts of law, the account will not be extended beyond the legal limit of six years, provided the statute be pleaded, Lockey v. Lockey, Pr. Ch. 518; but if the defendant do not avail himself of the statute by demurrer, plea, or answer, the account will be granted in equity, as at law, from the time the title accrued. See Monypenny v. Bristow, 2 R. & M. 125.

It often happens that a legal remedy did exist, but has since, by the death of a party, or the determination of the estate, become extinguished. In such a case, as the right was not, but only is, without a remedy at law, there seems no ground in general for the interference of a court of equity. Barnwall v. Barnwall, 3 Ridg. P. C. 71, per Lord Fitzgibbon; Hutton v. Simpson, 2 Vern. 722; Norton v. Frecker, 1 Atk. 525-6, per Lord Hardwicke; and see Pulteney v. Warren, 6 Ves. 88.

But if the remedy was lost through mistake, the Court upon that principle will interpose: as where a lease was held for the lives of A. and his two daughters B. and C., and A. afterwards married again, and had another daughter, who was also named B., and the landlord on the expiration of the lease by the death of the real cestuis que vie did not enter, B. the daughter by the second marriage being mistaken for B. the life named in the lease, Lord Macclesfield said, "Where one has title of entry, and neglects to enter or to bring his ejectment, but sleeps upon it for several years, as he has no remedy at law for the mesne profits, so neither has he in equity, for it was his own fault he did not enter, and he shall never come into a court of equity for relief against his own negligence, or to make the tenant in possession who held over his lease to be but his bailiff or steward, whether he will or not; but in the present case, by reason of the circumstance of both daughters being of the same name,

In the event of a breach of duty by the trustee, the cestui que trust is entitled to file a bill against the trustee,

and the mistake consequent thereon, the defendant must account for the mesne profits from the expiration of the lease." Duke of Bolton v. Deane, Pr. Ch. 516. (Note, in this case Lord Hardwicke thought a remedy still existed at law, Dormer v. Fortescue, Ridg. Rep. t. Hardwicke; but Lord Macclesfield was evidently of a different opinion, and so was Lord Fitzgibbon. Barnwall v. Barnwall, 3 Ridg. P. C. 68.)

So equity will relieve where the remedy was prevented by fraud: as where A. was entitled to a leasehold estate, but B., concealing the deeds, remained in possession until the term had expired, Lord King directed an account of the rents and profits from the time that A.'s title accrued, on the ground that A. had been kept in ignorance of his just rights through B.'s fraudulent concealment of the deed and counterpart. Bennet v. Whitehead, 2 P. W. 644; and see Duke of Bolton v. Deane, ubi supra, and Barnwall v. Barnwall, 3 Ridg. P. C. 66.

And generally the Court will in all cases lend its aid where the legal process has been lost, not by any delay on the part of the plaintiff, but through some default of the defendant. Pulteney v. Warren, 6 Ves. 73.

And an infant will of course be entitled to an account upon the ground that the pernor of the profits is a bailiff or receiver for the infant. Duke of Bolton v. Deane, Pr. Ch. 517, per Lord Macclesfield; Hutton v. Simpson, 2 Vern. 724; Tilly v. Bridges, Pr. Ch. 252.

II. An account may be sought as incident or collateral to the relief. The doctrines upon this subject have been very distinctly laid down by Lord Fitzgibbon in Barnwall v. Barnwall, 3 Ridg. P. C. 66.

1. "The general rule of equity," he said, " is, that if the suit for recovery of possession be properly cognizable in a court of equity, and the plaintiff obtain a decree, the Court will direct an account of rents and profits, as incident to such relief."

This rule has been treated of in the text, and requires no further observation.

2. "If a man have a mere legal title to the possession, he has no right to come into equity for the recovery of it; and if he has originally recovered the possession at law, he has no manner of right to proceed by bill for an account of rents and profits: as his title to the possession was at law, he must proceed for the whole there." See also Dormer v. Fortescue, 3 Atk. 130; Tilly v. Bridges, Pr. Ch. 252; Owen v.

if living, or, if dead, against his representative, to enforce a compensation for the loss the trust estate has sus

Aprice, Ch. Re. 32; Anon. case, 1 Vern. 105, contradicted 3

Atk. 129.

Upon this rule it must be remarked, that a dowress, Mundy v. Mundy, 2 Ves. jun. 122; D'Arcy v. Blake, 2 Sch. & Lef. 387; Wild v. Wells, 1 Dick. 3; Meggot v. Meggot, 2 Id. 794; Goodenough v. Goodenough, 2 Id. 795; Curtis v. Curtis, 2 B. C. C. 620; Moor v. Black, Rep. t. Talbot, 126; and see Dormer v. Fortescue, 3 Atk. 130; Pulteney v. Warren, 6 Ves. 89; Agar v. Fairfax, 17 Ves. 552; and infant, see Dormer v. Fortescue, 3 Atk. 130, 134; S. C. Ridg. Rep. t. Hardwicke, 183, 191; Pulteney v. Warren, 6 Ves. 89; Newburgh v. Bickerstaffe, 1 Vern. 295, are allowed, on the principles before mentioned, to proceed in equity upon their legal title, and incidentally to the relief will be decreed an account of the mesne rents and profits. But by 3 & 4 W. 4. c. 27, s. 41, the arrears of dower are recoverable for six years only next preceding the commencement of the suit. And the account of an infant will be barred, if he do not bring his bill within six years after he has attained his majority. Lockey v. Lockey, Pr. Ch. 518.

3. "If a party be obliged to come into a court of equity for aid to enable him to prosecute his title at law" (as where he cannot recover in a legal action by reason of an outstanding term, or because the title deeds to the estate are in the hands of the defendant), "after possession recovered at law, there may be cases in which he may come back for an account of rents and profits in the suit depending in equity." And see Dormer v. Fortescue, 3 Atk. 124; S. C. Ridg. Rep. t. Hardwicke, 176; Reade v. Reade, 5 Ves. 744. Or the plaintiff, being obliged to resort to equity on one ground, may, to prevent circuity, ask complete relief in the first instance in that court; and if his title be established, either by the determination of the Court itself, or by an issue directed at law, an account of the rents and profits will be consequential upon the relief. Townsend v. Ash, 3 Atk. 336; Edwards v. Morgan, M'Clel. 541; Reynolds v. Jones, 2 Sim. & Stu. 206.

In these cases the account will clearly be restricted to the period of six years; for the plaintiff recovers upon a legal title, and the circumstance of his being obliged to sue in equity does not alter the nature of the action for mesne rents and profits. See Reade v. Reade, 5 Ves. 749, 750; Harmood v. Oglander, 6 Ves. 215; Drummond v. Duke of St. Albans, 5 Ves. 439; Hercy v. Ballard, 4 B. C. C. 468; Stackhouse v. Barnston,

tained (1). But the claim of the cestui que trust is a simple-contract debt only, and therefore, until the late act, it was payable, not out of the real, but only out of the personal assets (1).

If the trustee become bankrupt or insolvent, the cestui que trust may prove for his loss against the estate of the bankrupt or insolvent (m); and if interest would have been decreed in equity against the trustee himself, it will constitute part of the debt in the proof against the estate in the hands of the assignees (n); and if the breach of trust was a sale of stock and misemployment of the money, the cestui que trust may, at his option, prove either for the proceeds of the sale, or for the price of the stock at the date of the commission (0).

(1) See supra, p. 228. (m) Keblev. Thompson, 3B.C.C. 112; Moons v. De Bernales, 1 Russ. 301; Dornford v. Dornford, 12 Ves. 127; ex parte Shakeshaft, 3 B. C. C. 197; Bick v.

Motly, 2 M. & K. 312.

(n) Dornford v. Dornford, Bick v. Motly, Moons v. De Bernales, ubi supra.

(0) Ex parte Shakeshaft, 8 B. C. C. 197.

10 Ves. 470; Monypenny v. Bristow, 2 R. & M. 125; and see Reynolds v. Jones, 2 Sim. & Stu. 206.

But if the plaintiff has been kept out of the estate by the fraud, misrepresentation, or concealment of the defendant, the Court will suppose that, had the plaintiff known his just rights, he would have commenced his action at law on the first accruer of his title, and will then decree an account of the mesne rents and profits against the defendant from that period. Dormer v. Fortescue, Ridg. Rep. t. Hardwicke, 184, 185; S. C. 3 Atk. 130.

On the other hand, if the plaintiff be in fault, as, if he be guilty of laches, the account will be restricted to the time of filing the bill. Edwards v. Morgan, M'Clel. 541, see 557.

(1) The right against the representative was very early established, for Sir T. Egerton, in ruling to that effect in the reign of Elizabeth, said, he had seen a similar case resolved by all the judges of England in the thirty-fourth year of H. 6. Mears's case, 4 Inst. 86.

In awarding compensation against the trustee, the Court pays no regard to the circumstance whether the trustee derived any actual advantage or not, but proceeds upon the principle, that a trustee, who deviates from the line of his duty, is under an obligation to make good the situation of the cestui que trust (p); and if a trustee be guilty of misconduct, and a loss follow, it does not acquit him, because, as subsequent events have shewn, the loss would equally have been incurred had the breach of trust never been committed: if the damage happen by fire, lightning, or any other accident, it will be no excuse to the trustee, if guilty of previous negligence (q).

But a trustee will not be charged with imaginary values (r); and, being regarded as a mere stakeholder, he will not be liable for more than he has actually received (s), except in cases of very supine negligence, or wilful default (t).

Where co-trustees are jointly implicated in a breach of trust, it seems the cestui que trust may at his option proceed against any one of them singly, or against all of them collectively (u), for as regards the remedy of the cestui

(p) See Dornford v. Dornford, 12 Ves. 129; Raphael v. Boehm, 13 Ves. 411; S. C. Ib. 490, 491; Moons v. De Bernales, 1 Russ. 305; Adair v. Shaw, 1 Sch. & Lef. 272; Lord Montfort v. Lord Cadogan, 17 Ves. 489; Scurfield v. Howes, 3 B. C. C. 90; but see Attorney-General v. Greenhouse, 1 B. N. R. 57-9.

(q) See Caffrey v. Darby, 6 Ves. 496; Cocker v. Quayle, 1 R. & M. 535.

(r) Palmer v. Jones, 1 Vern. 144.

(s) Harnard v. Webster, Sel. Ch. Ca. 53.

(t) Pybus v. Smith, 1 Ves. jun. 193, per Lord Thurlow; Palmer v. Jones, ubi supra, per Lord Nottingham.

(u) Ex parte Shakeshaft, 3 B. C. C. 197; Walker v. Symonds, 3 Sw. 74, 75; and see ex parte Angle, Barn. 425; but see in re Chertsey Market, 6 Price, 278, 279; Taylor v. Tabrum, 6 Sim. 281.