Chapman v. Morris , 9 G. & J. 101 ( 1837 )

Archer, Judge,

delivered the opinion of the court.

The prayer of the plaintiff is somewhat ambiguously-worded, but as we understand, it, it embraces two propositions. First — the general proposition that the plaintiff is not entitled to recover if the proceeds came into the hands of the intestate by the consent of Mrs. Maddox, the cestui que trust; and secondly, that the plaintiff could only recover in case the jury believed that , the plaintiff had made advances on the faith of the trust fund, to the amount thereof, which have not been allowed him.

We think the court were right in rejecting these prayers. The defendant’s intestate was appointed to sell these negroes by the plaintiff, with the consent of Mrs. Maddox, but that fact alone would not release Morris from his responsibility as a trustee. To accomplish this purpose the prayer should have gone further, and have put it to the jury to find the fact that she had consented to look to -the defendant’s intestate for the proceeds. She might have consented to his agency in the sale, knowing his responsibility to her trustee, without meaning in any degree to have looked to him for the proceeds, otherwise than through her trustee; and there is evidence to go to the jury from which this fact might have been inferred. It would therefore have been erroneous to have dir'ected the jury that the reception of the proceeds by consent of Mrs. Maddox, would prevent the plaintiff’s recovery.

The second proposition is not sustained, because, if Chapman was appointed the'plaintiff’s agent to sell these negroes, and there is evidence to go to the jury to prove this, still notwithstanding her consent that Chapman should sell the negroes, she may- have looked to the responsibility of her trustee, as Chapman’s principal, and may have given her consent, to such agency, with no view to the substitution of a new trustee. In this point of view the right of the plaintiff’s recovery could not be made to depend upon his advances to Mrs. Maddox upon the faith of the trust fund.

JUDGMENT AFFIRMED.