belchier agt parson chanc march a assignee of a bankrupt employ a broker to  sell and receive the money for good who after the sale die in insolvent  circumstance hold that the assignee be not responsible to the creditor for the  value of the good sell by the broker beyond the dividend actual receive from  the broker effect a assignee or trustee not be liable for accidental loss  without blameable negligence ambler SC mrs parson be choose assignee under a  commission of bankruptcy issue against one hold among who effect be a  considerable quantity of tobacco which she employ one Wigan a broker to sell  by public auction Wigan accord sell it and receive the money a few day after  as appear by the evidence be fall sick and after ten day illness die on his  death his circumstance prove bad bis creditor have but a small dividend and  mrs parson among the rest have but little of the money receive by he for the  tobacco the master have by his report charge her with the whole the question  now before the court on exception to the master report be whether she shall be  charge with the whole money or that part of it only which actual come to her  hand Kenyon for mrs parson the attorneygeneral solicitor general Mr Wilbraham  c insist that she ought to be charge with no more than the money actual  receive by her that she be simple a trustee for the creditor and have no  profit by it that trustee be never liable in this court for loss unless they  happen through their own negligence that she have be guilty of no laches that  it can not be expect she shall herself attend to sell the good or receive the  money that in employ a broker to do it she have do no more than be customary  this they read the deposition of five broker to prove three of who depose they  have be frequent employ by assignee trustee executor c and have always sell  the good and receive the money but the other two seem to differ one of they  confirm this custom as to sale of household good and the like but say that in  sale of merchandise c be believe it may be otherwise and the other side he  have sometime receive the money himself on such occasion and at other time a  person have attend for the purpose that as it can not be expect she shall  herself attend the sale somebody must be entrust that the broker she employ be  at that time a person in good credit which be prove that have she permit the  money to remain in his band any considerable time and he have then prove  insolvent there may have be some colour to charge her with it that in this  case Wigan be take sick a few day these be the witness be word after the sale  and so sick that the witness who want to have speak with he be not permit of  which sickness he die that on his death it be not deny mrs parson immediate  apply to Kenyon his representative that they have not attempt to impeach the  credit of Wigan at the time she employ he nor be there any pretence of  collusion or fraud on the part of mrs parson that it will be extreme hard to  make her answerable for accident which she can neither foresee nor prevent  that trustee unless some gross neglect or fraud appear be never Chargeable in  this court with more than actual come to their band that if a trustee manage a  trust as a pruden t man may be suppose to act in respect of his own affair he  will never be answerable for accidental loss that there have be variety of  case in which this court have exempt trustee from loss that have happen in  their trust which may be reduce under three general bead and those be saint in  the case of a necessary act d where the loss be occasion by some inevitable  accident d where the act do be prudent at the time though it may occasion a  loss that in general it be sufficient for a man to take the same care in the  management a see Ambl Kenyon er p of a trust as he will in the management of  his own affair that of the saint sort be the case of two trustee who join in a  receipt one only actual receive the money the other in that case be never hold  responsible because his join be a necessary act but in the case of executor it  be otherwise because it be not necessary for they to join the receipt of one  alone be a sufficient discharge that of the second sort be the case where a  trustee c be rob or the like that be a accident which he can not foresee or  avoid he be always exempt that of the three sort be the follow instance in the  case of my Lord Plymouth Mr Llewelyn the receiver appoint of his estate during  his infancy have take bill of exchange from one Mr Winslow a merchant in  Worcester Kenyon for about pound those bill when offer for acceptance be  refuse and protest and Winslow become insolvent the money be lose the question  be whether Llewelyn shall be answerable for it and it appear that Winslow be  in good credit and have the reputation of a man of fortune and that Llewelyn  have usual remit the produce of my lord estate through his hand your lordship  hold that he ought not to hear the loss though that be the case of a receiver  who have a salary and therefore may with abundant more reason have be oblige  to indemnify against accidental loss for that some method must have be take of  remit the money and this be the proper as well as the most usual method of do  it and as the loss be such as he can not foresee nor owe to any negligence of  his he ought not to make it good so in the case of blow v martial before Lord  Talbot in which be the case of a administrator who in conformity to the rigid  rule of the commonlaw be much more strict deal with than a trustee a tenant be  considerable in arrear and abscond so that there be very little probability of  recover that arrear refuse also to give up the possession and a God deal of  difficulty be likely to occur in get it the administrator think it more for  the interest of the intestate estate to give up his demand for the arrear to  obtain the possession and accord on the tenant give up the possession he  release the arrear to he and it become a question whether or no he shall be  charge with those arrear Lord Talbot think from the situation of the affair  that the step he have take be a prudent one and for the benefit of the estate  and therefore hold he shall not be liable this case be cite to your lordship  in a case of Worthington v Stamfellow and you Kenyon be please to say you  shall have be of the same opinion if then in the case of a receiver who be pay  for his labour and of a administrator who act must conform to the severity of  the commonlaw much more will that doctrine prevail in the present case where  mrs parson be a mere equitable trustee act for the benefit of creditor without  any expectation of gain or reward to herself this case fall under all the  beforementioned head of exemption her employ somebody to sell be a necessary  act the insolvency of the person employ be a accident which she can not  foresee or prevent the choice of this person as he be a broker of credit be  prudent at the time though it eventual turn out to be otherwise have she do a  unusual act it may have have a different construction as be the case of Lord  Litchfield and sir John William where the assignee employ the clerk of the  commission to receive the debt of the bankrupt that be unusual the court hold  they be answerable for he but the employ a broker in this case appear from our  evidence which they have examine none to controvert to be always customary and  where be the impropriety of it we may it be true have employ a agent to  receive the money but why shall not the broker be entrust with the money as  well as the good which he be always in possession of to sort they c before the  sale and sure have they be in that case embezzle it will not have be pretend  that we be liable to make they good for his sort sell c be necessary act and  for the benefit of the creditor which we be unconversant in these affair can  not have do our self be trustee assignee c who receive no advantage from their  Kenyon office to be hold answerable for the act of the people they employ in  case where it be necessary they shall employ somebody and no imprudence be  impute to they in the choice no one will be foolhardy enough to undertake  those office on the other side Mr Noel Mr clarke Mr Henley c admit that if it  be customary for the broker on these occasion to receive the money and mrs  parson have not be guilty of any laches in neglect to get it from he she ought  Kenyon er p not to be Chargeable but they insist the fact be otherwise for  though some of her witness have depose that it be usual for broker to receive  the money at sale and auction other bad very proper make the distinction and  confine that custom to sale of household good and thing of small value which  be usual sell in the bankrupt house and deliver and the money pay at the time  of sale but in sale of merchandise like the present where the good remain in  the warehouse and be deliver and the money pay after the sale either the party  sell or somebody on his behalf and not the broker usual receive the money that  the good remain in warehouse can not be say to be in the broker possession and  therefore the argument draw from thence will not hold but admit she do right  in permit the broker to receive the money she ought to have apply to have have  it from he in a day or two at the far and then perhaps she may have recover it  that the witness who mention his sickness call it a few day without say how  many it be after the sale before be fall sick and after that he live ten day  during all which there be no proof of any application by mrs parson for Kenyon  the money that this be like the case of a person who receive a goldsmith note  who ought to call immediate for the money within one day at most and if he  neglect it and the drawee become insolvent be can come upon the drawer as he  may but for his own negligence have receive it the general rule that it be  sufficient for a person to manage a trust estate as he will his own be subject  to many restriction that in the case of Worthington v Stamfellow in which that  cite by Mr solicitor have be mention a administratrix employ a person to  receive the intestate debt c and that person become insolvent though it be  prove in the cause that she be infirm herself and that she have employ the  same person in the management of all her own effect yet she be hold answerable  for he these circumstance be not a sufficient excuse and she ought to have  receive it herself Lord chancellor I be of opinion that there be no ground to  make mrs parson answerable in this cause for any more of the money than what  she actual receive be it once to be lie down as a rule in this court that a  assignee or trustee shall be answerable in all event for the people they  employ do man in his sense will ever undertake those office in the case of  executor and administrator the commonlaw do in most case consider the person  receive by their direction only as the band b which they receive and this  court likewise to preserve some consistency with the commonlaw do confine they  to strict rule and what be a devastavit at law must be so here but in the case  of trustee and assignee particular who be act immediate under the authority of  this court it have always admit of great latitude nay in the former case this  court and sometime even the court of Kenyon law have dispense with that rigour  in case of this kind it be not to be expect that the assignee will themselves  attend the disposition of the bankrupt effect and less so still in the present  case from the sex of the person who the creditor have think proper to choose  assignee nor will it indeed be for the benefit of the creditor if they do  broker and such sort of people be more conversant with the effect to be  dispose of better judge of their value and more capable of dispose of they to  advantage and I be of opinion here be sufficient evidence of its be customary  for the broker in these case to receive the money one of the witness indeed  who be himself only conversant in sale of household good c say that it be so  in his way of business but in mercantile transaction it may be otherwise and  another say that sometime he have know a person appoint to receive the money  and not the broker who sell the good but where be the difference the broker  when she employ he be a man in business and credit have she appoint another  person be can be do more be too may have fail it be impossible to know the  circumstance of man with absolute certainty she may indeed have take security  but that security may have fail and she can not have security for security  beside this will have obstruct and stop the affair and be contrary to the  custom and rule of these sort of transaction I think indeed that the broker  who sell if a man of credit be the proper person to receive the money and the  court have always think so for what be more common in this court when the  property of ship good or merchandise be dispute than to direct the same to be  sell by some broker of reputation and credit who be to receive the money and  pay it into the bank to wait the event of the cause the Kenyon er p broker in  these case may fail and the money Kenyon never be pay into the bank but that  be the usual way of do business and this be a accident which can be foresee or  guard against the good themselves be in the broker possession be very material  since if he be fit to be entrust with these why not with the MODey as they be  equal liable to be embezzle and though these good may be as the counsel for Mr  belchier contend in the warehouse that will not alter the case for if the  broker have the key as be necessary must for the purpose of sort c previous to  the sale that be all that be usual in these case where good be general permit  to remain in the warehouse have be determine to be proper possession and do  certain enable he to dispose of they at big pleasure as much as if they have  be in big own house and I do not see that mrs parson have be guilty of any  laches it appear the man fall sick a few day after the sale and of that  sickness die whether or no she apply to he during his sickness do not appear  perhaps she may not be for that press and in that situation it will not be  very consistent with humanity to be so but upon the whole I do not think she  bag be guilty of any blameable negligence any Crassus heedlessness to make her  answerable in this court for money she confess do not receive this be not like  the case that have be mention of a goldsmith note where for the benefit of  trade that be look upon as money the drawer have be indemnified if not offer  the drawee in season to manage a trust in the manner a man will manage his own  affair be in general sufficient but that be not to be understand that a  trustee may act wile and arbitrary as a man may in big own affair but as a  prudent man it may be suppose will do Kenyon in case of necessary act or act  prudent at the time trustee have be always indemnified by necessary act be  mean two sort of necessity a legal necessity and a moral necessity a legal  necessity be where as in the case which have be mention two trustee join in a  receipt that be legal necessary to discharge the debtor shall not charge the  party but the person actual receive shall alone be answerable in the case of  executor it be otherwise for payment to one executor be sufficient one  executor have a absolute power over the testator estate and be capable of  release a debt dispose of any part of the effect assign a leasehold estate c  and big act will bind the rest whereas in the case of trustee they must join a  moral necessity be as in the case of Lord Plymouth the receiver business be to  receive the produce of my lord estate and remit it to London for that purpose  be must either have remit it in the manner he do or bring or send it to town  in cash in both of which there be some hazard it be true be may have come to  town with it guard but since the increase of trade and commerce inland bill of  exchange become more frequent that have not be insist on and as the person  through who band be remit it be a person of reputation and have usual convey  it safe the court think he ought not to be answerable for a loss which be no  way to be impute to he notwithstanding he be a receiver and have a salary  which it be urge imply a undertake to indemnify c in the present case the  party be a trustee for the benefit of other without any expectation of gain or  reward be to be sure more to be favour for that bag always be consider as a  material ingredient in question of this kind I remember a case of a similar  nature of my Lord CJ Eyre who be guardian to Lord Shaftesbury under the will  of the late earl he have appoint a steward of one of Kenyon his lordship  estate in the north who fail with about pound or pound in arrear and it become  a question whether the chief justice shall be answerable for it I remember it  be think he ought not to be answerable as it be impossible he can receive the  rend of the several estate himself and as the man have be employ by the late  earl himself I do not remember whether that case be ever before the court or  not but I know the principal counsel be consult in it and that be their  opinion under the bead of prudent act be the determination that have be  mention of my Lord Talbot and certain it will be very unreasonable that a  trustee shall be a sufferer by any act apparent for the good of the person  entitle to the benefit of the trust and this court will be always cautious of  establish any rule that may deter people from undertake office of this nature  by subject they to the hazard of become considerable loser without any  possibility of gain therefore let the exception be allow Kenyon er p there be  another question in this cause which arise on this case hold before his  bankruptcy purchase three ship the vendor title to which be derive by mesne  assignment from the original bill of sale on the that that and rd of October  he enter into separate contract with the government for employ these ship in  their service on the that of the same month he borrow of Kenyon wood and for  secure the repayment of it assign these ship by way of mortgage together with  three bottomry bind the original bill of sale be not deliver to the mortgagee  nor have he any possession of the ship on the that of march after the  bankruptcy the ship be sell and mrs parson the same day pay wood the money due  on his mortgage after which she apply to the commissioner of the navy and  receive of they the money due on their contract the question now be whether  she ought to have pay wood and have pay he whether she shall be allow it for  mrs parson Mr attorneygeneral solicitor general c argue and cite the case of  brown v Heathcol which they say be a deed of covenant purport a sort of  mortgage of a ship from one Peirson to Heathcot covenant to put he in  possession thereof by way of security for a debt and that he shall sell it to  pay the same return the overplus if any the ship be then abroad consequent  possession of it not deliver but the invoice and other paper concern it be  deliver to Mr Heathcot Peirson die soon after William be his representative  who become a bankrupt Martin for Heathcot take possession of the ship and sell  it on a bill file by the assignee against Heatbcot and Martin they be direct  to account with leave to come in as creditor but the suit abate and be  afterward revive by supplemental bill in march it come on again before your  lordship and it be object first that here be no legal assignment because not  accompany with delivery dly that it be only a covenant can vest no legal  property at most but a equitable one and therefore the creditor have a  equitable interest likewise ought to be let in Kenyon dly that it be void by  the statute James but your lordship say the case be strong than usual for the  defendant defendant get a assignment to secure a old debt have prevail though  the court lean against they as in Jacob v shepherd I think in a sale of good  delivery be not absolute necessary as of a horse if the money be pay not  deliver good be a badge of fraud when another come to take they in execution  there be no word amount to a actual assignment in point of law the deed rest  in covenant but the question be whether it be not a lie in equity tailor v  Wheeler cock v goodfellow so be the case of assignment of choose in action  thou h here be no actual assignment it be sufficient to give a lie especial as  it be at the time of the money lend have it be only a declaration that the  good shall remain till the money pay it will have be a equitable lie invoice  bill of lade c all be leave with Heatbcot nothing remain with the bankrupt  that can give he false credit this determination be hold a right one by all  the judge in the great case of rial v roll the present case be not a  assignment for a old debt nor make at the eve of a bankruptcy but by a man in  good circumstance and for money then advance it be object the mrtgagee have  not possession actual possession it be impossible he shall have as the ship be  in the service of the government who have a temporary property in they but it  be say he may have deliver a sort of seize a cable a anchor or the like Lord  chancellor the question be whether the mortgagee have not all the possession  be can have all which the mortgagor himself have for a man can give no more  Kenyon answer in the case of sale of good in a warehouse delivery of the key  be delivery of possession and though the seller have another key by mean of  which he can dispose of the good that will be no objection unless his  disposition be with the consent of the vendee as to the objection that the  mortgagee have not the original bill of sale deliver he it be not necessary he  shall have it and be often impossible the commissioner of the navy be satisfy  without it if they can have show that it remain in the mortgagors band by  which he can have impose on other that will have be another thing this be  certain a good assignment and within the reason of that case which be so  solemnly determine where a bind debt be assign delivery Kenyon er p of the  bind be sufficient to vest a proper lie in the assignee and so of all oath r  choose in action be all the possession that can be deliver and that by mean of  which actual possession can be obtain in the case of de grey v Richardson  easter term though seize be necessary to make a man tenant by the courtesy  your lordship on the authority of   light where it be hold that a man may be  tenant by the courtesy of a advowson without actual seize if he be prevent  from Itaining it by the life of the incumbent hold that in the case of a  reversion after lease for year tenant for year have the legal title the  husband will have be trespasser have be enter and therefore though he never  take possession he be tenant by the courtesy in the case of Stephens v Saul  which be a mortgage of in it all three hoy the mortaazor become a bankrupt  Lord Talbot set aside the mortgage of the boy becail they have continue in the  bankrupt possession but in the case of brown and ffeatheot the ship be Kenyon  abroad and the invoice proper deliver make it a good assignment and take it  out of the statute in the case of rial v roll the judge all agree in this  principle that the end of the statute be to prevent bankrupt from obtain a  false illusive credit on good which be not their own by the collusion of the  true owner wherever a bankrupt have the mean of get actual credit it be within  the statute but Mr justice Burnett say how can the assignor be say to have the  actual possession when all the muniment or mean of reduce be ship into actual  possession be in the hand of the assignee or what false crWdit can a man  acquire on the credit of ship at sea who have not one evidence of ownership it  be like the case of the delivery of the key of a warehouse to a assignee of  good in that warehouse it be the mean of the assignee get possession and  prevent the assignor from obtain false credit by show the good as his own Mr  Noel contra it appear that mrs parson payment to wood be entire without the  privity of the creditor so it will be no hardship to disallow this payment if  he be not entitle to it so far from possession accompany this assignment it  appear on the evidence of wood that there be no talk or mention of possession  at the time they say the ship be abroad and in the government service and  therefore no possession can be deliver there be no proof of their be abroad  nor can they be so for the mortgage be make the very day after the date of the  contract with the government and when that contract be not sign have they go  to the captain he will have deliver possession to Mr wood Mr attorney cite a  case of a bill of sale of a Kenyon person who be owner of ail eight part only  of a ship hold good without delivery of possession that be nothing to the  present case for the assignor have a eight only can not have deliver  possession delivery of possession be as necessary to a mortgage as to a sale  the case of rial v roll be a express determination that mortgage as well as  absolute sale be within the Act in the case of brown v Heathcot be some  circumstance which have not be mention a the title be deliver the ship be  abroad at the time of the assignment and possession be take as soon as it  return the original assignment here they say be lose but there be no proof of  it and if it be still in the hand of the mortgagor as it may be he will have a  right to dispose of the ship to any other person subject to the contract with  the government Mr clarke on the same side every case almost be consider in  that of rial and roll and these general rule lie down that equitable interest  as well as legal may be assign that a choose in action may be in such a  situation as will enable the mortgagee to bold it in opposition to the general  creditor but all these case be accompany with a declaration that every thing  possible to come at actual posseSSiOl and to prevent the vendor or mortgagor  from impose upon other and to take the ownership from he must be do do wood  then do all be can for this purpose he have not all the title the original  bill of sale be not deliver to he it be not sufficient to say it may be lose  that will be presume it do not appear that be inquire about it at the time the  first time Kenyon wood give notice of his claim be after the commission it be  not show but that he may have have the bill of sale have be require it the  contract with the commissioner of the navy can not prevent his take possession  the ownership continue in the contractor mrs Kenyon er p parson receive the  money from the commissioner be a instance of the great inconvenience that may  be occasion by wood laches in not endeavour to obtain the visible ownership  for if their argument be true mrs parson have no right to receive it it be  plain he have not comply with the rule I mention which be so solemnly  establish in that case that the court will do nothing to enervate they the  case cite be not similar in brown v Heatheol the pledgee have use the utmost  diligence to obtain actual possession be do every thing possible to obtain it  and as there be so vast a quantity of property which do not lie in livery  actual possession may be dispense with where every thing possible have be do  to obtain it wood be so far from do this that he leave the vendor for mrs  parson stand in the place of the bankrupt must in this respect be consider as  the bankrupt himself to transact the affair relative to it with the  commissioner of the navy c here the court say as Mr clarke lie so great a  stress on mrs parson receive the money of the commissioner they inquire in  what right she receive it and it appear it be as a purchaser and after the  mortgage be pay off the sale be on the that the mortgage pay off the same day  and the application to the command issioners afterward Mr Henley insist the  mortgagee ought to have give immediate notice to the master that the property  of the ship be transfer to he for on the knowledge of Kenyon the master the  reputation of ownership entire depend it will then have be know to be wood  ship and hold can not have obtain a false credit by it Mr jewel observe that  one of the contract with the government be subsequent in point of time to the  mortgage and therefore one of the ship be entire out of the reason the  gentleman go on so that of that he may have deliver actual possession and as  to the two other the mortgagee may have apply to the commissioner as mrs  parson do after and be receive with they as owner Lord chancellor this be a  material distinction apply yourselves to this ship and consider against Monday  whether any other possession may have be deliver of it give yourselves no  further trouble about the other