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34

HARVARD LAW REVIEW.

the trustee, funds of his own being paid to the same account. Here the question is not whether the cestui que trust is entitled to a lien or to a proportionate part, for it is entirely immaterial in the case of money, but whether he has any rights at all against the bank account. There can be little doubt that, according to the older English precedents, the question would have to be answered in the negative. Money when mixed with other money could not be followed, because it had no ear-mark. A consideration of these old cases led Justice Fry, so late as 1879, ^^ decide that the rights of the cestui que trust were gorie.^ It had been decided, however, in Pennell v, DeflFell,^ that the cestui que trust was entitled in equity to his money though mingled with other money, and did not become an ordinary creditor. This case was followed by Frith V, Cartland,® and other cases.* But, as stated before, Mr. Justice Fry, finding it impossible to reconcile the early decisions with the late ones, took the extraordinary course of following the early cases and disregarding the later ones, though admitting their doctrine to be preferable. The law on the subject was thus in a very unsettled state till Sir George Jessel, M.R., in a case involving the state of facts now under consideration,^ made a thorough review of the whole subject. He frankly admitted that formerly equity would give no relief, but was of opinion that the modern doctrine in equity was at variance, that equity had ad- vanced. He accordingly Overruled Mr. Justice Fry's decision, and again placed the matter in a satisfactory shape. Any other result would involve the consequence that a trustee by simply putting one dollar of his own with a sum of trust money would make him- self merely a debtor instead of a trustee, although the trust fund were still in existence and in his possession. The doubt arose because the judges were not (to quote Jessel's words), "Aware of the rule of equity, which gave you a charge — that if you lent

^i,oooof your own and £,1,000 trust money on a bond for ;^2,ocx
)

or on a mortgage for ;^2,ooo, or on a promissory note for ;£2,ocx:), equity could follow it, and create a charge." The case has been followed very recently.^

In this country what Sir G. Jessel calls the modem doctrine of

1 ExparU Dale, 1 1 Ch. D. 672. * 4 De G., M. & J. 372.

5 2 H. & M. 417.

  • Brown v. Adams, L. R. 4 Ch. App. 764 ; ExparU Cooke, 4 Ch. D. 123 ; Birt v.

Burt, 36 L. T. Rep. 943. « Knatchbull v. Hallett, 13 Ch. D. 696. * Gilbert v, Gonard, 54 L. J. Ch. 439.