brown case John Crookshanks appellant richard turner and another respondent  that march Mews dig xiv see now Judicial trustee Act Vict c S a trustee shall  not be answerable for a mistake commit innocent and from which he derive no  advantage and a court of equity will grant a perpetual injunction to prevent  any proceed at law ground on such mistake decree of Lord Macclesfield c affirm  the respondent be partner and moneyscriveners keep cash as banker for several  gentleman and serve they by commission in buy and sell stock government  security and SouthSea subscription in may the appellant and one Mr rigby  employ the respondent to buy for their joint account several SouthSea  subscription receipt which they do and particular one receipt for pound in the  first subscription which they deliver to rigby on the that of June follow the  appellant give order to the respondent to buy for he several receipt in the  three subscription to the SouthSea company and as a security to the respondent  for his perform such contract as they shall make for he the appellant deposit  with they the say first subscription receipt for pound and their servant  pheasant Blackler give the appellant a note acknowledge the receipt thereof in  the follow word videlicet June that receive of John Crookshanks Esq pound in  the first subscription to the SouthSea company to account for on demand for  messrs turner and mark pound receipt No p Blackler and have so do he put the  say receipt into a public drawer where other receipt of the like nature be  promiscuous keep but do not in any book or elsewhere mark down the number of  it or acquaint the respondent what the number thereof be or that he have put  the same in the margin of the receipt which he have give nor be the particular  number of such receipt in the great hurry of business at that time common  regard by the dealer in they all receipt for the like sum be of equal value  pursuant to the appellant order the respondent contract for twothird  subscription receipt for pound each for the appellant account for the  performance which contract the say first subscription receipt for pound be  deposit as a security and which contract still remain to be perform at this  time the respondent have in their custody several other first subscription  receipt which they keep for different person particular one for pound belong  to Mr David Mitchell which by his order and for his account the respondent  turner brown on the same that of June when the appellant receipt be leave sell  to Mr shaw for pound and which sum be pay by he to the respondent upon deliver  to shaw a subscription receipt for pound but which as it afterward appear  happen to be the receipt which the appellant on that day leave and most  probable because it lie uppermost in the drawer the respondent in deliver out  receipt not regard the number but only the sum and the very same day the  respondent pay over or allow in account to the say Mr Mitchell the say pound  which they receive for the same and have no other benefit whatsoever by it but  their commission nor do the appellant sustain the least prejudice thereby  about a year afterward and not before when the say subscription receipt be  fall very low in price the appellant come to the respondent and tell they he  find his subscription receipt have be sell and deliver to the say Mr shaw and  that he have pay the respondent pound for the same and therefore he require  they to pay that sum to he whereupon the respondent tell the appellant that  they have always in their custody a receipt for pound to deliver to he and  which they keep for that purpose but that as to the number of receipt they pay  no regard to they and be stranger to the particular number of his receipt as  they be likewise to the number of Mr Mitchell receipt which they have sell nor  do Mr Mitchell himself know the number of his receipt which he have leave with  the respondent and that as every first brown er p subscription receipt for the  same sum though of a different number be of the same value the appellant be no  sufferer thereby notwithstanding this the appellant in Trinity term bring his  action of trover against the respondent for have convert his subscription  receipt to their own use and also another action for money have and receive  whereupon the respondent who have behave themselves in the trust repose in  they by the appellant with the great integrity and have expose themselves to  the say action by a accidental and inadvertent delivery of the appellant  receipt to Mr shaw instead of another of the same value without the least  advantage to themselves or prejudice to the appellant bring their bill in the  court of chancery to be relieve and also indemnified against the contract  which they have enter into upon the appellant account and to be discharge of  their trust the appellant instead of answer this bill stand in contempt for  about six month and then be arrest on a attachment he put in his answer and  thereby insist not only on the payment of the say pound by reason of his  receipt be deliver instead of the other although the respondent have before  pay the money to Mr Mitchell but likewise on have so much more money as his  receipt may have be sell for in August when such subscription receipt be at a  much more advance price and when he apply to the respondent brown and they as  be pretend though true refuse to sell the same on the that of may the cause be  hear at the roll when his honour conceive that the matter in question be  proper triable at law be please to order that the appellant shall be at  liberty to proceed to trial in the action at law bring against the respondent  notwithstanding the injunction in this cause and after the say trial either  party be to be at liberty to resort back to the court and he reserve the give  direction touch the appellant indemnifying the respondent in respect of the  contract make on his behalf as also the consideration of cost till after the  trial the respondent apprehend that they be proper relievable in a court of  equity when it so full appear by the proof in the cause that they have not in  any manner misbehave themselves in the whole transaction and that the  appellant be no way a sufferer thereby appeal from the say decree to the Lord  chancellor Macclesfield and the cause be hear on the that of December his  lordship be please to decree that a perpetual injunction shall be award to  stay the appellant proceed at law against the respondent for and touch the say  subscription receipt No for pound in the first subscription take in by the  SouthSea company or for the sum of pound for which the respondent sell the  same but that the respondent shall pay the appellant his cost at law to be tax  by a master and that the appellant shall indemnify the respondent against the  contract by they make on his behalf with Halhed and caswell for two pound  three subscription receipt by give to they in a fortnight his own bind in such  penal sum as the master shall think sufficient to indemnify the respondent  against the say contract which bind when give be to be esteem a sufficient  indemnification for the respondent against the say contract and the respondent  be thereupon to transfer to the appellant or his order all the SouthSea stock  and the produce thereof arise from the pound first subscription receipt or in  case the respondent have reserve a first subscription receipt not claim they  be then to deliver the same to the appellant who be thereupon to deliver up to  the respondent the say Accountable note for the say pound subscription receipt  No from this decree the appellant appeal insist c Wearg t Lutwyche that he  have full prove his property in the deposit subscription receipt both by mark  and number that the respondent by their Accountable note of the that of June  be engage for a specific subscription receipt No and have while those thing be  fresh in memory and obvious to view commit a breach of trust by sell the  appellant property without his knowledge and have afterward receive order for  the sale of this identical receipt they be become responsible for the specific  receipt or the money for which it have be sell or may have be brown sell in a  fair and honest method by a faithful trustee that there be nothing suggest by  the respondent but what they may insist upon as far as it shall have any  weight in mitigation of damage at law where as the appellant conceive the  matter be brown er p proper triable in a action of trover and on which trial  the circumstance of the respondent sell the receipt and the intent of do it  may proper come in question that it be admit the appellant have proper  commence his action at law because the decree have order the respondent to pay  he his cost at law and if the appellant be entitle to his action at law he be  entitle also to recover damage which be proper for the consideration of a jury  and also whether the respondent have only commit a innocent mistake as they  pretend for it do not certain appear that they have Mr Mitchell receipt in  their custody on the that of June or if they have that they do not deliver out  that as well as the appellant or that they keep any receipt for the appellant  the evidence be very lose as to these point and therefore proper to be leave  to a jury as to the appellant suffer no damage if a first subscription receipt  for pound though different number be deliver to he it be say that if another  receipt have be render at the time it be demand for sale the one may then have  be a equivalent for the other but a subscription receipt in December can never  be of the same value as a subscription receipt which be sell in June or may  have be sell in August beside it be unreasonable that the respondent shall  have all the benefit when the appellant run all the hazard in case the  respondent have fail it be therefore hope that in this particular case where  the appellant property have be clear ascertain and full prove and which have  be dispose of without his authority he shall be at liberty to proceed to a  trial at law wherein all the circumstance of the case the credibility of the  evidence and the whole matter in question may be full examine and fair  discover and the jury may give what damage they shall think reasonable on the  other side I Darnall c Talbot it be say to be full prove in the cause that  other person who keep subscription receipt as well as the respondent seldom  regard the number but only the sum of such receipt all receipt for the say sum  be of equal value that the respondent have no advantage but their commission  nor be the appellant in any manner prejudice by this sale as the respondent  have always keep a subscription receipt by they to answer that which be  deposit by the appellant that it be manifest that this transaction of the  respondent in deliver to shaw the appellant number instead of Mitchell be mere  a innocent mistake without any design and therefore consider the nature and  circumstance of the case the decree be agreeable to justice and equity and  ought to be affirm brown accord after hear counsel on this appeal it be order  and adjudge that the same shall be dismiss and the decree therein complain of  affirm jour vol p