PART III. joined in the notice, and he afterwards adopt it, and join in the demise in ejectment (ƒ). The reason is, that these acts need not necessarily have been for the benefit of the others. Div. I. CHAPTER I. SECT. 1. Possession of possession of all. Notwithstand ing 3 & 4 W. IV. c. 27, s. 12. If however one of several trustees be duly authorized by the others to act as their agent, the legal maxim of "quod facit per alium facit per se" applies; and any act of the agent alone, which does not exceed his authority, will be binding on the others (g). But where the act is for the benefit of the estate, the act of one will be binding on all.-And on this ground the entry or re-entry of one of several joint trustees of an estate,—or the grant of livery of seisin,— or a surrender by a lessee,-to one of them, will enure for the benefit of all (h). And so the possession or seisin of one or more of several joint trusone trustee the tees operates as the possession of the others. And the Statutes of Limitation will not begin to run against the cestuis que trusts as long as one of the trustees is in possession (i). The alteration of the law on this point by the statute 3 and 4 Will. IV. c. 27, affects those jointtenants only, who have the beneficial as well as the legal ownership.— The 12th section of that act provides, that where one or more of several joint-tenants shall have been in possession of the entirety, or more than his proper share of an estate, for his own benefit, or for the benefit of any person other than the persons entitled to the other shares, such possession shall not be the possession of the other joint-tenants. This enactment therefore cannot apply to the possession of one of several co-trustees, who, if they hold as joint-tenants, must all hold for the joint benefit of the same cestuis que trusts. Recognition of debt by one of several trustees how far binding on the others. Notice to one notice to all? An acknowledgment of a debt by one of several joint trustees will not take it out of the Statute of Limitations, as regards the others (k); but part payment made by one will revive the remedy against them all (?). It has been decided, that notice of a charge or incumbrance on the trustee, how far trust estate, given to one of several co-trustees, is sufficient to perfect the equitable title of the incumbrancer (m). And it is immaterial, that the incumbrancer is himself the trustee, who thus receives the notice for his own benefit (n). However the effect of such a notice only continues, as long as the party, to whom it is given, continues to (f) Right d. Fisher v. Cuthell, 5 East, 491. (g) Ex parte Rigby, 19 Ves. 343; and see (h) 1 Inst. 49, b.; id. 192, a.; 6 Mod. (k) See 9 Geo. IV. c. 14, s. 1; Chitty, (1) Whitcomb v. Whiting, Dougl. 652; Burleigh v. Stott, 8 B. & Cr. 36; Pease v. Hurst, 10 B. & Cr. 122; Perham v. Raynall, 2 Bingh. 306. (m) Smith v. Smith, 2 Cr. & Mees. 232; Meux v. Bell, 1 Hare, 73; and see re Raikes, 4 D. & Ch. 412; ex parte Vauxhall Bridge Company, 1 Gl. & J. 106; Duncan v. Chamberlaine, 11 Sim. 123. (n) Smith v. Smith, 2 Cr. & Mees. 232; see re Raikes, 4 D. & Ch. 412; Duncan v. Chamberlaine, 11 Sim. 123. Div. I. CHAPTER I. SECT. 1. hold the office of trustee; and after his death, or retirement, a subse- PART III. quent incumbrancer may gain a preference, by giving notice to the then existing trustees; if in the mean time they have received no notice of the first charge (o). No case has arisen, in which a notice to one of several trustees has been held to bind the others, so as to render those, who have not received notice, personally liable to the incumbrancer for any subsequent disposition of the trust estate by them; and it appears difficult to contend successfully, that a notice so limited should have such an operation. It is therefore for many reasons advisable, that notice of an equitable incumbrance, &c. should in every case be given to all the trustees. A trustee who has disclaimed or renounced-or upon the same principle one, who has been duly discharged under a power contained in the trust instrument, or by a decree of the court-need not join in any sale or other disposition of the estate, or in receipts for the trust monies (p). And it is immaterial that those acts are directed to be performed by the particular trustees by name; for a gift to several individuals nominatim upon trusts is a gift to those only who accept the trust; and they consequently take full power to perform all ministerial acts consequent upon the office (q). Trustee who has disclaimed, need not join in the acts of the other trus tees. has once accepted, or has But a trustee, who has once acted or accepted the trust, and has not Secus, one, who been properly discharged from it, must join with the other trustees in the receipts to purchasers or other persons, requiring a discharge for released. the payment of trust money; and it is immaterial that he has parted with the possession of the legal estate (r). And it is on this principle, that a person, who executed a release of the estate, devised to him as a trustee, instead of making a simple disclaimer, has been held to be a necessary party to a receipt to a purchaser (s). Where however a mere discretionary power, or one simply collateral, has been given to several persons expressly by name, and to them only; all the individuals named must join in exercising it; and any act by those only, who have accepted the trust, will not be a valid execution of the power (t). But it is otherwise where the power is not strictly personal, but is annexed to the office of trustee (u). In ordinary cases of private trusts there does not appear to be any established rule, according to which the decision or opinion of the ma (0) Timson v. Ramsbottom, 2 Keen, 35; Meux v. Bell, 1 Hare, 97. (p) Flanders v. Clark, 1 Ves. 9; Smith v. Wheeler, 1 Ventr. 128; Hawkins v. Kemp, 3 East, 410; Adams v. Taunton, 5 Mad 435; Worthington v. Evans, 1 S. & St. 165. (q) Adams v. Taunton, 5 Mad. 435, 8. a of Hardwick v. Mynd, 1 Anstr. 109, is of (8) Crewe v. Dicken, 4 Ves. 97; Small v. (t) See 1 Sugd. Pow. 138; et post, Chap. [Powers]. (u) Worthington v. Evans, 1 S. & St. 165; Clarke v. Parker, 19 Ves. 19. All the donees join. When? of a power must How far the decision of the majority of the trustees is binding on all. PART III. Div. I. SECT. 1. In cases of charitable or public trusts. Where the trust instrument vests the power in the majority. Proof of debt by one of several trustees. Taxation of jority in number of the trustees would be binding on the dissentient minority. The principle that all co-trustees have equal power and authority would seem to be directly at variance with the existence of any such rule. All the trustees are of course bound to concur in every ministerial act requisite for the discharge of the trust; and those, who should refuse to do so without sufficient reason, would be compelled to act by the court, whose decree would also visit the offending trustees with the costs, occasioned by their conduct (x). But where the act is a matter of pure personal discretion, we shall see presently, that the court cannot in general interfere to control a trustee in the bonâ fide exercise of his discretion; and there seems to be no remedy against one or more of several co-trustees, who without any corrupt motive refuse to concur with their co-trustees in any discretionary act (y). The proof of fraudulent or improper conduct would of course give the court jurisdiction (z). However, in cases of charitable and public trusts, where the number of trustees is usually greater, the decisions of the majority will be binding on the rest; for otherwise it would be in the power of one dissenting trustee to embarrass and possibly disappoint the working and object of the trust (a). It is almost needless to add, that if the trust instrument contain express directions for the administration of the trust according to the decision of the majority of the trustees, the dissentient minority will be compelled to give effect to the decision of the majority. For instance where an advowson is vested in trustees, in trust to present the person whom the majority approve of, those trustees, who voted for an unsuccessful candidate, must join in the presentation of the one chosen by the majority (b). One of several trustees cannot prove a debt, due from a bankrupt to the trust estate, without an order of the court; although one of several executors may so prove without any order (c). One of two or more executors, or trustees, may apply for the taxacosts on appli- tion of a bill of costs, which had been paid by the other (d). cation of one trustee. At law any one of several joint-tenants has the power to receive One of several and give discharges for the whole of the rents and income arising from the property. Therefore one of several co-trustees of stock in the trustees may receive rents and dividends. Malin, 2 Tyr. 544; Att.-Gen. v. Shearman, 2 Beav. 104; Att.-Gen. v. Cuming, 2 N. C. C. 139. (b) Att.-Gen. v. Cuming, 2 N. C. C. 139. (c) Ex parte Smith, 1 Deac. 385, and M. & A. 586; ex parte Phillips, 2 Deac. 334. (d) Hazard v. Lane, 3 Mer. 285; see Lockhart v. Hardy, 4 Beav. 224. Div. I. CHAPTER I. SECT. 2. public funds may receive the dividends on the whole sum (e); for PART III. the bank looks only to the legal title (ƒ). And the rule is the same as to the dividends on shares and other similar payments. And so the rents of a trust estate may be paid to, and received by, one or more of several trustees (g). Although it would be different, if the tenants had received notice not to pay their rents except upon the receipt of all the trustees. the trustees, how far requi site. Where an account at a banker's is opened in the name of two or Signature of more trustees, it is in their power to require, that the cheques should banker by all be signed by all or any one or more of their number. However we shall presently see that a trustee would be held personally liable for any loss, if he diminished the security of the trust fund by placing it in the exclusive power of any one or more of his colleagues (h). In strictness therefore it is the duty of trustees to require, that the cheques should bear the joint signature of all the trustees. Where there are several trustees however, this might be regarded as a matter of extreme and over caution, which would moreover be productive of much inconvenience in the working of the trust. And most trustees would probably be satisfied with requiring the signature of two or three of their number only. SECT. 2.-Of the Liability of a Trustee for the Acts of his Co-trustees. Where more than one trustee is appointed, and all have accepted the trust, it is the duty of each one to protect the trust property from the acts of his colleagues. And if through the neglect of this duty any one or more of the trustees have been enabled to misappropriate, or otherwise occasion any loss to, the trust estate, the others, as a general rule, will be personally answerable to the cestuis que trusts for the amount of the loss; although they had not been actively engaged in, or benefited by, the breach of trust. For instance, if a trustee stand by, and suffer his co-trustee to retain the exclusive possession of the trust funds, and they are lost or wasted by the co-trustee, the non-acting trustee will be decreed personally to make good the loss; for it was his duty to have interfered, and protected the fund from the misapplication; and by his acquiescence he was directly accessory to the loss (i). However this knowledge and acquiescence must be proved against the trustee (k). In Booth v. Booth (1), a testator bequeathed his personal estate to his partner and to B. in trust to invest for the benefit of his wife and (e) Williams v. Nixon, 2 Beav. 472. (f) See Williams v. Nixon, 2 Beav. 472. (g) Townley v. Sherborne, Bridg. 35. (h) See next sect. and Walker v. Symonds, 3 Sw. 1, 58; Clough v. Bond, 3 M. & Cr. 490. (i) Williams v. Nixon, 2 Beav. 475. Trustees liable for breach of trust committed by cotrustee. Where there has been acquiescence by them in the breach of trust. PART III. CHAPTER I. SECT. 2. Or connivance. Or neglect to obtain proper information. Or where they have concurred in the act, their co-trustee to commit the children. B., together with his co-trustee, the surviving partner proved the will, and thus accepted the trust, but he did not actively interfere; the other and sole-acting trustee with B.'s knowledge and acquiescence retained the testator's money in the trade for several years, instead of investing it, as directed by the will. Upon the failure of the business the trust fund was lost; and it was held by Lord Langdale, M. R., that both the trustees were equally responsible for the loss (1). In Lincoln v. Wright (m) the testator gave the residue of his estate to trustees, to be invested for the benefit of his daughter and her children. Two of the executors and trustees suffered the ascertained residue to remain in the hands of their co-trustee, and they were decreed to make good the loss, which was occasioned by his bankruptcy (m). It is still more evident, that if a trustee connive at a breach of trust committed by his co-trustee, or use any artifice to conceal it from the cestui que trust, he will himself be involved in the same liability. Thus where one of two trustees had sold out a sum of trust stock, and the other knew of it and concealed it from the cestui que trust, they were both held equally liable upon the loss of the fund (n). And in another case where one of two trustees retained a sum of trust money in his possession, but the other joined in a false representation to the CESTUI QUE TRUST, that it was invested in stock in their joint names, both trustees were declared responsible (o). And it is the duty of trustees to obtain every information from their co-trustee as to the situation and disposition of the trust property; and if they neglect this precaution they will become answerable for any misfeasance on the part of the acting trustee (p). Again if a trustee join in doing any act, or in carrying into effect any arrangement, by which the trust property is taken out of the joint which enabled protection and control of all the trustees, and is placed within the sole power, and at the mercy of, one or more of their number, by whom it breach of trust. is lost, it is clear, that the trustees so acting will as a general rule be held responsible for all the consequences; for by his conduct he diminished the security of the property, and was thus directly accessory to the loss, that ensued. The exceptions to this rule will be considered presently. Thus if two or more trustees join in the sale of the trust estate, or the conversion of the existing investments, and suffer the proceeds to be received and retained by one or more of their number exclusively (9): (1) Booth v. Booth, 1 Beav. 125. (n) Boardman v. Mosman, 1 Bro. C. C. 68. (0) Bate v. Scales, 12 Ves. 402. (p) Walker v. Symonds, 3 Sw. 58. (g) Sadler v. Hobbs, 2 Bro. C. C. 114; Scurfield v. Hawes, 3 Bro. C. C. 90; Chambers v. Minchin, 7 Ves. 198; Shipbrook v. |