The Sun.
London, England, 1829-11-26 00:00:00

lIANBURY V. KIRKLAND.

The case arose out of one of the many frauds committed
by Mr. Charles Kaye, jun., lately a solicitor of well-
known eminence in London. From the statements of the
Counsel for the plaint ff (Mr. Knight), it appeared that
upon the marriage of Mr. Hanbury, the father of the
plaintiff, with a lady of the name of Fellowes, in 1818, a
sum of 7,4041. Navy Five per Cents., was invested in the
name of Kirkland, Mills, anti Charles Kaye, as trustees, for
the separate use of Mrs. Hanbury, for life, without power
of anticipation, with remainder to Mr. Hanbury, and the
children of the marriage, of whom there was but one who
was the present plaintiff, an infant. In the settlement was
contained a power to raise out of the 7,4001. a sum of
1,5001. for the private purposes of Mr. Hanbury. That
power was exercised by all the trustees ; the sum of 1,5001.
was raised, and paid to Mr. Hanbury. This reduced the
stock to 6,000/. and a fraction ; that money was afterwards
converted into Four per Cents. by the Act of Parliament.
The stock so standing in the name of trustees, was actually
gone, in consequence of the frauds of Mr. Kaye. Stock
being high in 1822, Mr. Hanbury expressed a wish to
lay out the money in mortgage, if a good one could be
procured. Mr. Charles Kaye acted as the solicitor of the
trustees, and undertook to sell out the stock, and invest it
on a mortgage; a power of attorney was executed by his
co-trustees, enabling him to do so ; the stock was sold
out, but, instead of the money being invested in mort-
gage, Mr. Charles Kaye had applied it to his own pur-
poses, and since that period had decamped. Mr. Knight
did not mean to say one disrespectful word against Mr.
Kirkland and Mr. Mills ; it was a hard case upon them,
but ten times harder upon the infant plaintiff, who
would he deprived of the whole of her fortune, unless
a decree was obtained according to the prayer of the bill.
No mortgage had ever been made, proposed, or executed.
Surely it was the duty of the trustees to see such a course
had been adopted as would have secured the property ;
they had not done so, and he (Mr. Knight) submitted,
under such circumstances Isis client was entitled to the
decree asked, namely, a return of the money so carelessly
allowed to be purloined by the trustees and a co•trustee.
The Learned Counsel cited the case of " Chambers and
Minshull" and two other authorities in support of his pro-
position.
The SOLICITOR-GENERAL, on behalf of the trustees,
considered they had acted rightfully in giving the consent
they had done. He submitted, in point ofjustice and morality,
they could not beheld liable to refund under the circumstances
that had taken place, nor could they be visited on account
of the misconduct of a brother trustee. Mr. Capel Han-
bury hearing a reduction was about to take place in the
5 per Cents., wrote to Messrs. Kirkland anti Mills, stating
that he had consulted with Mr. Charles Kaye upon the
subject of the reduction, the result of which was Mr.
Kaye's informing Mr. Hanbury that he had an opportunity
of placing the funds out on mortgage at five per cent. Mr.
Kaye stated to his co-trustees this circumstance, observing
that he thought the parties could not do better than em-
brace so favourable an opportunity for investing the money.
Mr. Kaye, by letter, a few days afterwards, urged the
speedy execution of the power of attorney, which was to
authorise him to sell out the stock, as the mortgage deed
would he ready on the next Monday or Tuesday. In con-
sequence of this, knowing that under the settlement they
could not rightfully do so, the power of attorney was
signed by them. The stock was sold out by Mr. Kaye,
who continued to pay the dividends to Mr. and Mrs. Ilan-
bury, as if they arose out of the mortgage; nor was it till
the flight of Mr. Charles Kaye the trustees became ac-
quainted with the fact that the money had not
been placed out on rnortgai,se, but applied to the
private purposes of Mr. Kaye. In point of morality
and equity, he could not see how the Court was to grant
the decree applied for. He trusted, if the Court in point
of fact, should think the trustees liable, it would direct an
enquiry upon the subject. The whole of the correspond-
ence must then come out, in the present instance the