appellants were an English company with their registered and head office at Norwich, where the directors and shareholders met, the dividends were declared, and all the affairs of the company were directed and controlled. The business carried on out of the United Kingdom was conducted by the managers of the various branches abroad who were appointed by and acted under power of attorney signed by nine directors of the company at Norwich, and such managers had the power to accept risks and issue policies without prior reference to the head office, whereas in the case of the agencies in England covenants only were given, and the directors in the head office determined whether to accept or decline risks. The annual income of the company was derived from premiums, interest on investments, fees and profits on sales earned at the head and branch offices, the whole being brought into one account and set of books, kept and entered up at the head office as set forth in the annual balance-sheets which were issued by the head office alone. The assessment of £65,787 made upon the appellants was based on their own return, which included profits and losses made at all the branches. This sum included an item of £17,157 for untaxed interest, and an item of £12,841 for profits made at the New York and New Zealand branches. The appellants sought to have the assessment amended by having (a) £5,502 deducted from the item of untaxed interest, as being dividends upon various foreign securities payable out of and not specifically remitted to or received by them in the United Kingdom; and (b) £12,841 deducted, as being profits made at some of the foreign branches and not specifically remitted to or received by them in the United Kingdom. The £5,502 represented part of the profits made abroad, and instead of being specifically remitted to this country was, with other funds of the appellants, reinvested in American securities, but the amount was accounted for at the head office here and included in the general account. It was contended by the company (a) that the dividends upon the foreign securities ought to be assessed under the 4th case of section 100 of 5 & 6 Vict. c. 35, and that, therefore, the assessment should be restricted to the sums actually received in Great Britain, and that the sum of £5,502 not having been received in this country by the company, the assessment should be reduced by that sum: Colquhoun v. Brooks, 38 W. R. 289, 14 App. Cas. 493; (b) that, as to the £12,841 profits made by foreign branches, they fell to be assessed under case 5, and as they had not been remitted to or received in this country, they were not liable to assessment. For the Surveyor of Taxes it was contended first that, even if the dividends on the foreign securities fell to be assessed under case 4, those dividends had been constructively received here: Scottish Mortgage Co. of New Mexico v. McKelvie, 24 Sco. L. Rep. 87, 2 Tax Cas. 165; and secondly, that as the company was an English company the whole of the profits, wherever made, were assessable under the first case in schedule D, whether specifically remitted to this country or not. The Commissioners dismissed the appeal by the company, and confirmed the assessment. The company appealed. Bigham, Q.C., and Loehnis, for the company.-The interest arising from these various foreign investments are not "profits" that are taxable under schedule D. The money so accruing is not received either really or constructively by the company. It is not "income." The balance-sheet shows that this interest has accrued, but not as income, for it has been at once invested to form part of the reserve COURT OF APPEAL. capital. The case of the Scottish Mortgage Co. of New Mexico v. McKelvie is distinguishable from this case, and does not apply. The business of the Scottish Mortgage Co. was to lend money outmoney which they borrowed expressly for the purpose of advancing again. It was held, and quite rightly, that the profits so made were taxable. Sir R. Webster, A.G., and Danckwerts, were not called upon to argue for the Crown. WRIGHT, J.-The real question we have to decide is whether these investments made abroad by the company are necessary to form the trading capital required to enable them to profitably carry on their business in America. There can be no doubt that the company could not carry on, or at any rate could not so conveniently or profitably carry on, their American business unless, as their business increased, they constantly augmented their reserves in America. If the money required to increase these funds there were not raised in that country then it would be compulsory on the company to send out capital from England. It follows, therefore, that these investments are not made simply for the purpose of capital investment, but are, in fact, part of the trading assets of the company, and the interest arising therefrom is liable as a trade profit. For these reasons I think the Commissioners were right in treating the interest accruing from such investments as part of the trading gains of the company liable to income tax. KENNEDY, J., concurred. In re SANDERS' SETTLEMENT. (a.) Solicitor-Costs-Taxation-Scale fee-Grant of easement Conveyance-Solicitors' Remuneration Act, 1881 (44 & 45 Vict. c. 44)--General Order, Schedule I., Part I. A deed creating an easement for the first time does not come within the scale of charges prescribed by Schedule I., Part I., of the General Order made in pursuance of the Solicitors' Remuneration Act, 1881. In re Stewart, 37 W. R. 484, 41 Ch. D. 494, followed. In re Earnshaw-Wall, 42 W. R. 567, [1894] 3 Ch. 156, distinguished. . Decision of North, J., ante, p. 309, affirmed. Appeal from the decision of North, J., reported ante, p. 309. By an order of North, J., made on the 5th of August, 1893, the London County Council were ordered to pay the costs of the investment of certain moneys in court in the purchase of a right of way, and upon the taxation of these costs the question arose whether they were within the scale prescribed by Schedule I., Part I., of the General Order made in pursuance of the Solicitors' Remuneration Act, 1881. The facts relating to the investment in the right (a.) Reported by ARNOLD GLOVER, Esq., Barristerat-Law. of way Rule 2 of the General Order made in pursuance of the Solicitors' Remuneration Act, 1881, provides as follows: "(a) In respect of sales, purchases, and mortgages completed, the remuneration of the solicitor having the conduct of the business, whether for the vendor, purchaser, mortgagor, or mortgagee, is to be that prescribed in Part I. of Schedule I. to this order, and to be subject to the regulations therein contained." "(c) In respect of business not herein before provided for, connected with any transaction, the remuneration for which, if completed, is hereinbefore or in Schedule I. hereto prescribed, but which is not, in fact, completed, and in respect of settlements, mining leases or licences or agreements therefor, reconveyances, transfers of mortgage or further charges, not provided for herein before or in Schedule I. hereto, assignments of leases not by way of purchase or mortgage, and in respect of all other deeds or documents, and of all other business the remuneration for which is not herein before or in Schedule I. hereto prescribed, the remuneration is to be regulated according to the present system as altered by Schedule II. hereto." The taxing master held that the scale did not apply, inasmuch as this was the creation of an easement for the first time, and came within the decision of Kay, J., in In re Stewart, 37 W. R. 484, 41 Ch. D. 494. North, J., being of the same opinion, dismissed a summons to review the taxation. The London County Council appealed. W. Baker, for the appellants.-This was a purchase of property to which the scale applies. In re Stewart is distinguishable, for there the vendors merely gave a licence to lay pipes. Here the vendors parted with the whole surface of the strip. The purchase money, too, in In re Stewart was small. Here it could hardly have been larger if the freehold of the strip had been sold. The case comes within In re Earnshow-Wall, 42 W. R. 567, [1894] 3 Ch. 156, where Chitty, J., held that the scale applied to the sale of an advowson. He referred also to Coverdale v. Charlton, 27 W. R. 357, 4 Q. B. D. 104, and In re Merchant Taylors' Company, 33 W. R. 542, 693; 30 Ch. D. 28. COURT OF APPEAL. The case falls within In re Stewart, which was rightly decided. Moreover, this is something more than a mere sale for £516. Mutual obligations were imposed by the agreement. W. Baker, in reply. The only consideration expressed in the conveyance itself is the £516. The word "conveyance is applicable to the creation just as much as to the transfer of an easement. LINDLEY, L.J.-When you look at this agreement it is obvious that it is not merely an agreement for the purchase of a right of way across the strip. It includes that, and the £516 is the only money consideration expressed in the agreement; but each set of trustees is accommodating the other, and the Gubbins trustees stipulate not only for the £516, but for the construction of this road across Gubbins' property, and for the right to use it before it comes upon the highway, and it is agreed that when the whole thing is done it shall be a public road. That agreement, therefore, is not a mere agreement for purchase and sale. It was carried out by the deed of the 4th of September, 1894, which, again, is not a mere conveyance of this right of way for £516; but it is that, and more. On approaching the question we have to decide, it is important to observe that whether the solicitor is to be paid according to the scale of fees or not does not depend upon any abstract question of law as to whether an easement is property-in one sense it is obvious an easement is property-nor does it depend upon whether the grant of an easement can be called the conveyance of an easement. What we have to consider is the scale for the payment of solicitors. The gentleman who drew the conveyance of September, 1894, did not take up the position that the scale would apply, but considered that he might charge as he could before the scale was invented, according to the ordinary course. Relying upon a decision of In re Stewart, he took it for granted that the scale would not apply. The costs have been taken in for taxation, and the taxing master has taken the view that the scale, so far as regards what I may call shortly the purchase of that easement, the right of way, is not applicable; and, North, J., having taken the same view, the County Council have appealed to us, and the object of their appeal is to satisfy us, if they can, that the costs ought to be taxed according to the scale, in which case those costs will amount to about £12 10s., whereas unless the scale applies the costs will be about £95. The question is of a little importance in this case; but it is perhaps of more importance from a general point of view. Now, let us look at the orders which relate to this mode of payment. There is no doubt that the language of the Solicitors' Remuneration Act of 1881, by section 2, is large enough to cover these rules and any other rules which may be made relating to the remuneration of solicitors for the work there referred to, which may be called conveyancing work and noncontentious work. Rules have been made accordingly; and the rules, which will be found at p. 345 of the 2nd volume of the Annual Practice, are so worded that it is necessary to see into which clause any particular work comes. [His lordship referred to rule 2 of the General Order.] If you look at that (clause (a)) alone, I am not prepared to say that such an agreement or conveyance as this would not fall within that clause. It is in some sense, or may be considered in some sense, as a sale and purchase of this right of look at the deed, that that is not a full description of way; but at the same time it is obvious, when you it. If you look at it as a sale of a right of way, you must add this, that it is a good deal more than that. Channell, Q.C., and J. Gent, for the respondent. That is important when you look at the other clauses, COURT OF APPEAL. IN RE SANDERS' SETTLEMENT. I do not think (b) is material; (c) is important. [His lordship read clause (c).] Now, that takes us to the schedule, and when you come to the schedule you find this. Schedule I., Part I., is the scale schedule: "Scale of charges on sales, purchases, and mortgages, and rules applicable thereto." Then, looking down, you find the vendor's solicitor "for negotiating a sale," "for conducting a sale of property by public auction," and so on, may charge so much. Then there is "when the property is sold " and when it is not sold; then deducing title"; then "purchaser's solicitor," which I suppose this would be, "for negotiating a purchase of property by private contract so much, "for investigating title to freehold, copyhold, or leasehold property, and preparing and completing conveyance (including perusal and completion of contract, if any) so much. When you come to look at the scale you see it is a percentage on the amount of money consideration. Then, when you look a little further, you find that that is expanded in Part II., and then you come to the second schedule. The second schedule, I think, is the old scale. It is Part I. of Schedule I. as altered by Schedule II. Schedule II. is for business not otherwise provided for. Now, let us see what this is. It appears to me that the language is somewhat obscure; it is not very clear whether this is within the schedule or scale rule, or whether it is within the other rule. I think, when you look at the language, when you talk about a conveyance of property and sale of property, prima facie the language is adapted to existing property and to the transfer of it. I do not say it could not possibly be extended so as to include what is popularly called a conveyance, although the conveyance creates the thing conveyed-perhaps it might, but that is a little converting the thing; but when you look at the substance of the thing and bear in mind that, as a rule, the consideration is small, whereas the trouble may be very great, it seems to me, in a simple case, the conveyance would fall under "business not otherwise provided for." I think that would be the business point of view. That has been the view adopted already in In re Stewart, and I do not understand In re Stewart to be based upon the theory that an easement is not property; it is based upon the theory that such a deed as creates an easement for the first time is not a sale or conveyance of property within the first part of the rule, but is business otherwise provided for under the last. That, I think, is right, and it is quite consistent with that to say that the sale of an advowson is within the scale. Such a transaction as this does not strike me as coming within the rule applicable to the scale, and in this particular case I have no doubt whatever about it. I cannot conceive that such a deed as we have to deal with is a mere sale, and that the business connected with it should be paid for upon the basis of it being a mere sale. There are arrangements made between the two adjoining owners, and the mere fact that one of them gives £516 for the right to cross a piece of land, plus what the other gets out of it in other respects, does not make it a conveyance and sale in the ordinary view of business men. In this particular case I have no doubt that North, J., was right; but I am not prepared to throw any doubt upon the rule, which had better be settled once for all, that a deed creating an easement for the first time does not come within the scale rule, but comes within the other. KAY, L.J.-I will add a few words upon the meaning of this Act. Under the Solicitors' Remuneration Act of 1881 undoubtedly there is an authority which has power to make an order prescribing and regulating the remuneration of solicitors for certain work, including the case of the creation of an ease COURT OF APPEAL. ment. The words are as large as may be: This authority" may from time to time make any such general order as to them seems fit for prescribing and regulating the remuneration of solicitors in respect of business connected with sales, purchases, leases, mortgages, settlements, and other matters of conveyancing, and in respect of other business not being business in any action or transacted in any court or in the chambers of any judge or master, and not being otherwise contentious business, and may revoke or alter any such order." Therefore clearly the authority may make orders for any business which is practically non-contentious-any conveyancing or other business which is not contentious business. Therefore undoubtedly they had power to make the orders which would include the scale fee for the creation of an easement. That an easement is property nobody would think of denying, and it comes plainly, to my mind, within those words. Then the next thing to be observed is this, that the orders which have been made, on the face of them, show they did not include every case, because by sub-section (c), to which Lindley, L.J., has referred, of order 2, it is expressly provided that in respect of business not provided for by the two former subsections in that order the ordinary fee shall be paid as altered by Schedule II.; so that they did not intend to make the scale to be applied to all business that was not contentious business. The authority who made the order were perfectly well aware that the orders which they did make were not so large as that. Now, then, we have to see whether, under Schedule I., the scale can be applied to a case of this kind. This is not a transfer of any property in the ordinary sense of a transfer. It was not an existing subject of property which was conveyed from one owner to another; it was a grant out of the owner's property of a certain easement. Take other instances which were referred to during the argument. Supposing the grant had been of the passage of light over the property of A. to a window of B., that would be an easement; or supposing it had been of the right to let the smoke from B.'s chimney or from B.'s brickkiln pass over the land of A., and a consideration paid for that, that would be the grant for the first time of an easement, and not a transfer, in the ordinary sense of that word, of any existing property. The easement never existed as an easement until it was created by the particular grant. Now, does this Schedule I. to Part I. apply to a case of that kind? I confess that it does not seem to me to be the prima facie meaning of the word. I take the case of the purchaser's solicitor: purchaser's solicitor "for negotiating a purchase of property "this is a purchase of property in one sense-“ -"for investigating title to freehold, copyhold, or leasehold property, and preparing and completing conveyance (including perusal and completing of contract, if any)." No doubt that means a conveyance of that property the title to which he investigates. Primá facie, the word conveyance " is not at all an apt word to describe a deed by which an easement over somebody's property is created for the first time. If the easement had existed in A. B. and was by him transferred to another person, it would come within these words plainly enough, and that would be a transfer of property. That is what prima facie this schedule contemplates-a transfer of some existing property, and not a creation of a mere right, whether it be an easement or right-a mere right which is for the first time created by a deed which may in one sense be called a conveyance, but which is not a conveyance in the sense of being a transfer of existing things. I say this because there seems to have been COURT OF APP. COURT OF APP. some question about the words which were used by me in the case of In re Stewart. I there seem to have said: "Obviously the schedule contemplates primâ facie conveyances of land held as freehold, copyhold, or leasehold property, and the scale is fixed upon the purchase money which is paid when such property changes hands. When a mere easement is granted there is no change of property in that sense, and the purchase money is comparatively trifling in amount; but it might well be that a difficult and expensive investigation of the grantor's title might in many cases be necessary, for which a scale charge calculated on the purchase money of the easement would be a very inadequate compensation." IN RE SANDERS' SETTLEMENT.-CHILLINGWORTH v. CHAMBERS. Now, that case came before Chitty, J., in the case of In re Earnshaw- Wall, and he, referring to the decision, quotes the words which I have read, and adds: "His words had reference to the particular circumstances of the case before him; he was not dealing with the general question, nor with the question of property passing by conveyance; he did not express any decided opinion on the point before me. I should feel bound to follow him if I thought he intended to lay down the proposition that the term 'property' did not include incorporeal hereditaments; but as I consider he did not so intend, I am free to decide as I do." That it could be imagined for a moment that my words were meant not to include incorporeal hereditaments I cannot understand. The language I used was used in a case in which the particular easement, which was a licence to lay down pipes on somebody else's land, was created by deed, and I used the word " grant to express unmistakably, as I thought, the difference between the transfer of a thing which existed, and the creation of it by grant for the first time. I never for a moment suggested that an existing easement or an existing incorporeal hereditament of any kind, being transferred from a vendor to a purchaser, would not come within Schedule I. I most distinctly think it would; but I still remain of opinion that if the deed in question be the mere creation for the first time of an easement over land, the words of Schedule I. are not very apt to meet that case, and I do not think they are intended to meet it. I have pointed out that it appears most distinctly upon the face of this order that Schedule I. was not intended to include them, and in fact a good many cases are left to be dealt with under Schedule II.that is to say, according to the ordinary rules as to costs, somewhat modified by that section; and I cannot help thinking that if it had occurred to the minds of those who drew these orders, they would not have included the mere creation of an easement by deed in Schedule I., but would have left it to be dealt with by Schedule II. I think that is the right construction of these rules. Therefore I should think, in this case, that if the £516 were the purchase money for the grant of an easement created for the first time, it would not come within Schedule I. But, as has been pointed out, there is more in this case than that, because the deed by which this right or easement was created is a deed which contains a sort of give-and-take arrangement. There were advantages given to the vendor besides the purchase money, and therefore to say that the scale fee on the purchase money was the only fee that could be charged seems to me again not consistent with Schedule I. For these reasons I think that the decision of North, J., was quite right. It is obvious that it is possible that if the authority who has the power to make a rule thinks it right to make a rule which includes this case, they can do so; but I think the rule should be much more explicitly expressed than is Schedule I. of the General Orders at present. | A. L. SMITH, L.J.-I am of the same opinion. Having heard this case argued, I think that Chitty, J.'s judgment in In re Earnshaw-Wall was right, and that the judgment of Kay, J. (as he then was), in In re Stewart was right. The main distinction between the cases is this, that in the case before Chitty, J., there was a transfer of existing property brought about by conveyance, and in In re Stewart and in this case there has been no transfer of existing property, or of prior existing property at all, and, as has been pointed out by Mr. Channell, the conveyance itself creates a right which had no existence before. It seems to me, therefore, that this case does not fall within the phraseology of Schedule I., Part I., to which we have been referred, and which the Lords Justices have called attention to; and for these reasons I think this case follows the case before Kay, J., of In re Stewart, that that case was rightly decided, and that North, J., was quite right in following it. Appeal dismissed. Solicitors, W. A. Blaxland; Withall, Trotter, & Patteson. From Chan. Div. Jan. 21, 22, 23; CHILLINGWORTH v. CHAMBERS. (a.) Trustee Breach of trust Trustee beneficiary—Indemnity-Right to contribution from co-trustee. If one of two trustees who have been guilty of a breach of trust is also a beneficiary, he is liable to make good out of his share and to the extent of it the whole of the loss that has accrued to the trust fund, and can claim no contribution from his co-trustee when the breach of trust was committed for his benefit. Appeal from North, J. (ante, p. 32). below, and it is only necessary to state here that part The facts are fully stated in the report in the court of the trust estate, a sum of £8,650, was invested on named Hughes, part before and part after May, mortgage of certain leasehold houses to a builder 1881. Warmington, Q.C., and Arnold Statham, for the appellant.-Where trustees are fighting amongst themselves, the doctrine of acquiescence has never been held to be an estoppel. An innocent trustee who becomes a beneficiary after the breach of trust ought not to be put in the same position as a trustee who is particeps criminis. The true principle is that so far as he stood to make or did make a profit, he must make good that loss to the extent of his profit. They referred to Raby v. Ridehalgh, 3 W. R. 344, 7 D. M. & G. 104; Baynard v. Woolley, 20 Beav. 583, 4 W. R. Dig. 99. dent.-A cestui que trust who concurs in a breach of Swinfen Eady, Q.C., and Tebbutt, for the respontrust cannot turn round and take proceedings against the trustee Trafford v. Boehm, 3 Atk. 440; Lord Montfort v. Lord Cadogan, 17 Ves. 485. Where a trustee assents to a breach of trust by his co-trustee (a.) Reported by W. SHALLCROSS GODDARD, Esq., Barrister-at-Law. who is also a cestui que trust, the deficiency must be made good first out of the estate of the one who benefited by it. They referred to Walker v. Symonds, 3 Swans. 1; Booth v. Booth, 1 Beav. 125; Fyler v. Fyler, 3 Beav. 550; Lincoln v. Wright, 4 Beav. 427; Raby v. Ridehalgh; Evans v. Benyon; Sawyer v. Sawyer, 33 W. R. | 403, 28 Ch. D. 595; Bahin v. Hughes, 34 W. R. 311, 31 Ch. D. 390. Feb. 20.-LINDLEY, L.J., stated the facts, and continued:-The circumstances under which the trustees made the loans on mortgage were as follow. The borrower was a person named Hughes, a builder, and he was employed by the trustees to erect houses on the testator's property. Hughes also had other property on which he was building, and as the houses on this property were erected the trustees advanced him money on mortgages of them. The plaintiff favoured these loans both when his wife was alive and after her death, because Hughes was willing to pay and did pay 5 per cent. On the other hand, it is proved that the defendant was mixed up with Hughes in building operations, and was interested in them, and that after the trustees had agreed to make an advance to Hughes, the defendant frequently made him a temporary loan, intending that it should be repaid by Hughes as soon as he got money from the trustees; and it is proved, and in truth admitted by the defendant, that these temporary loans were so repaid. The amounts, however, of these temporary loans and repayments cannot be accurately ascertained. They probably amounted to considerably more than £1,500. The plaintiff asserts that he knew nothing about these loans and repayments until quite lately, and his counsel contended that the defendant ought to be treated as having received the trust money himself to the extent of at least £1,580, and that the defendant was in strictness liable to make good the whole of the loss sustained by the trust estate, but that the plaintiff was content with onehalf and did not ask for more. On the evidence, however, I am not satisfied that the plaintiff was so ignorant of these loans and repayments as he now says he was. No hidden scheme on the part of the defendant to get the moneys ostensibly for Hughes, but really for himself, is made out. Under these circumstances the repayments of the defendant's advances cannot be regarded as breaches of trust. Hughes was a mere borrower of trust money. His liability as regards the trust money lent to him was simply to repay it with interest. This was settled in Stroud v. Gwyer, 28 Beav. 130, 8 W. R. Dig. 85, and Vyse v. Foster, 21 W. R. 207, L. R. 8 Ch. App. 309. He therefore could pay the trust money away after he had borrowed it to anyone, and no one taking it from him, even with notice of the source from which he obtained it, would incur any liability to the trustees who lent it or to their cestui que trust. See Butler v. Butler, 26 W. R. 85, 7 Ch. D. 116, 119, where the liability of persons dealing with borrowers of trust property is discussed. It is impossible, therefore, to treat the defendant as liable to make good the whole or even half of the loss on any such theory as that to which I am now referring. But, although the defendant is not bound to indemnify the plaintiff against the whole loss, it has to be considered whether the plaintiff is not bound to indemnify the defendant. I am not now alluding to the plaintiff as a cestui que trust. I will consider his position in that character presently. I am regarding him simply as a co-trustee. It sometimes occurs, though not often, that one co-trustee is bound to indemnify the other | COURT OF APPEAL. against all loss. Whether he is or is not depends on what is just as between the two, and this depends on what they have respectively done (see Bahin v. Hughes. 34 W. R. 311, 31 Ch. D. 390, and the cases there cited). Now, in the present case the improper investment which led to the loss was made, so far as the plaintiff was concerned, in order to obtain a high rate of interest for the benefit of his own wife so long as she lived, and for the benefit of the plaintiff himself after her death. If, then, the defendant had not been interested in procuring advances for Hughes, it would require consideration before holding it to be just as between the plaintiff and the defendant to throw any part of the loss upon the defendant. In the case supposed the defendant would have strong grounds for contending that he was entitled to be indemnified against all loss by the plaintiff. It is, however, unnecessary to decide how this would have been; because, although no such scheme on the part of the defendant as I have before alluded to is proved, yet it is proved that the defendant was interested in keeping Hughes afloat and in facilitating borrowing by him, and I cannot avoid the conclusion that the plaintiff and the defendant, for personal reasons of their own, although for different ends, were both ready to run risks which as trustees they ought not to have run, and were too lax in seeing after the sufficiency of the securities they took. As between the plaintiff and the defendant, therefore, if the plaintiff had no beneficial interest in the estate, the ordinary right of one trustee to contribution from his co-trustee would exist. The Having arrived at this conclusion, it is necessary to consider what the effect is of the circumstance that the plaintiff became entitled to his wife's one-fifth share in the trust estate when she died. The plaintiff contends that if two trustees are jointly and severally liable to make good a breach of trust, and as between themselves in pari delicto, they are as between themselves entitled to contribution so as to equalize the loss to which both are equally liable. The plaintiff further contends that the fact that on the death of his wife he became beneficially entitled to a share of the trust property does not deprive him of his right to contribution from his co-trustee. On the other hand, it is contended by the defendant that a cestui que trust who concurs or acquiesces in a breach of trust cannot obtain any relief against his co-trustee. defendant further contends that this principle applies not only when the cestui que trust is not himself a trustee, but also when he is; and that the same principle applies even although the person filling both characters does not become a cestui que trust until after the breach of trust has been committed. North, J., in his judgment, first pointed out that as between the beneficiaries the plaintiff's share was primarily applicable and had properly been applied to make good the loss arising from the breach of trust; and then he held, on the authority of Evans v. Benyon, that the plaintiff was precluded from throwing any part of that loss on the defendant. Evans V. Benyon, however, was not a case of co-trustees at all. The court did decide that a person who instigated a breach of trust could not, when he himself became a beneficiary, compel the trustees to make good the loss occasioned by such breach. It is therefore an authority for saying that if the plaintiff had not been himself a trustee, his conduct before he became a cestui que trust would have precluded him from obtaining relief against the defendant in respect of the breach of trust which the plaintiff concurred in, as above stated. In order to determine the rights of the parties it is necessary to consider, first, the plain |