higher claim against the deeds, or the fund, than that of his client the trustee(a).

1042. Another species of lien is that which results to one joint owner of any real estate, or other joint property, from repairs and improvements made upon such property for the joint benefit, and for disbursements touching the same. This lien sometimes arises from a contract, express or implied, between the parties, and sometimes it is created by courts of equity, upon mere principles of general justice, especially where any relief is sought by the party who ought to pay his proportion of the money expended in such repairs and improvements(b).

1043. The doctrine of contribution in equity is larger than it is at law; and, in many cases, repairs and improvements will be held to be, not merely a personal charge, but a lien on the estate itself. Thus, for example, it has been held, that if two or more persons make a joint purchase, and afterwards one of them lays out a considerable sum of money in repairs. or improvements, and dies, this will be a lien on the land, and a trust for the representatives of him who advanced it(c).

1044. Courts of equity have not confined the doctrine of compensation, or lien, for repairs and improvements, to eases of agreement or of joint purchase. They have extended it to other cases, where the party making the repairs and improvements has acted bona fide and innocently, and there has been a substantial benefit conferred on the owner, so that, ex æquo et bono, he ought to pay for such benefit(d). Thus, where a tenant for life, under a will, has gone on to finish improvements, permanently beneficial to an estate, which were begun by the testator, courts of equity have deemed the expenditure

(a) See Francis v. Francis, 5 D. M. & G. 108; Groom v. Booth, 1 Drew. 548; Martindale v. Picquot, 3 K. & J. 317. And see as to set-off, Ex parte Cleland, L. R. 2 Chan. 125; In re Bank of Hindostan, L. R. 3 Chan. 125. But see Simmonds v. Great Eastern Rail w., L. R. 3 Chan. 797.

(b) Story, s. 1234. And see Gage v. Mulholland, 16 Gr. 145.

(c) Lake v. Craddock, 1 Eq. Abr. 291; 3 P. W. 158. See also, Scott v. Nesbitt, 14 Ves. 444; Hamilton v. Denny, 1 B. & B. 199.

(d) See Sug. V. & P. 698.

So,

a charge, for which the tenant is entitled to a lien(a). money bona fide laid out in improvements on an estate by one joint-owner, will be allowed on a bill by the other, if he asks for a partition(b).

1045. Another species of tacit or implied trust, or, perhaps, strictly speaking, of tacit or implied pledge or lien, is that of each partner in and upon the partnership property, whether it consists of lands, or stock, or chattels, or debts, as his indemnity against the joint debts, as well as his security for the ultimate balance due to him for his own share of the partnership effects(c).

1046. In the case of partnership property, the joint creditors, in case of insolvency, are deemed in equity to have a right of priority of payment before the private creditors of any separate partner. The joint property is deemed a trust fund, primarily to be applied to the discharge of the partnership debts against all persons not having a higher equity. A long series of authorities has established this equity of the joint creditors, to be worked out through the medium of the partners(d); that is to say, the partners have a right inter sese, to have the partnership property first applied to the discharge of the partnership debts, and no partner has any right except to his own share of the residue; and the joint creditors are, in case of insolvency, substituted in equity to the rights of the partners, as being the ultimate cestuis que trust of the fund, to the extent of the joint debts. The creditors, indeed, have no lien; but they have something approaching to a lien, that is, they have a right to sue at law, and by judgment and execution, to obtain possession of the property(e).

(a) Hibbert v. Cooke, 1 S. & S, 552. But see Floyer v. Banks, L. R. 8 Eq. 115. (b) Swan v. Swan 8 Price, 518.

(c) Collyer on Partn., 65; West v. Skip, 1 Ves. Sen. 239, 456.

(d) Campbell v. Mullett, 2 Sw. 574; West v. Skip, 1 Ves. Sen. 237, 455; Ex parte Ruffin, 6 Ves. 126; Taylor v. Fields, 4 Ves. 396; Young v. Keighley, 15 Ves. 557. And see Baker v. Dawbarn, 19 Gr. 113.

(e) Ex parte Ruffin, 6 Ves. 126; Ex parte Williams, 11 Ves. 3, 5, 6; Ex parte Kendall, 17 Ves. 521, 526.

1047. The extent of a banker's lien upon securities left with him for special purposes, but in some sense connected with his general business, is one not always easy of determination. Thus, where the customer kept exchequer bills locked up in a-box in the bank, of which the officers had the key, he handed them over to the bankers from time to time, for the purpose of being exchanged merely, this being so understood by the bankers. This exchange of the bills was regarded as a special agency, and as giving no control over the bills, for any other purpose, after that was accomplished; so that in performing this agency the bankers stood in much the same relation to the owner as a messenger employed to procure the exchange; and it was held that no lien for the general balance of account attached(a). But where Dutch bonds were deposited with a broker to cover an advance, the broker having power to sell the bonds when the advance became payable, it was held that the broker had a general lien upon them for the balance of his account(b).

1048. Implied trusts, or perhaps, more properly speaking, constructive trusts, which are independent of any presumed intention of the parties, and are forced upon their conscience by the mere operation of law, may next be considered.

1049. One of the most common cases in which a court of equity acts upon the ground of implied trusts in invitum, is where a party has received money which he cannot conscientiously withhold from another(c). The receiving of money which cannot consistently with conscience be retained, is in equity sufficient to raise a trust in favour of the party, for whom, or on whose account it was received(d). This is the governing principle in all such cases. And, therefore, whenever any interest arises, the true question is, not whether money has been received by a party, of which he could not

(a) Brandao v. Barnett, 12 Cl. & Fin. 787. See also Davis v. Bowsher, 5 T. R. 488.

(b) Jones v. Peppercorne, 5 Jur. N. s. 140; 1 Johns. 430.

(c) Com. Dig. Chancery, 2 A. 1; 4 W. 5.

(d) 2 Fonbl. Eq. B. 2, ch. 1, s. 1, note (b).

have compelled the payment, but whether he can now, with a safe conscience, ex æquo et bono, retain it. Illustrations of this doctrine are familiar in cases of money paid by accident, or mistake, or fraud. And the difference between the payment of money under a mistake of fact, and a payment under a mistake of law, in its operation upon the conscience of the party, presents the equitable qualifications of the doctrine in a striking manner(a).

1050. Another instance, perhaps more comprehensive in its reach, in which courts of equity act by creating trusts in invitum, is where a party purchases trust property, knowing it to be such, from the trustee, in violation of the objects of the trust. In such a case equity forces the trust upon the conscience of the guilty party, and compels him to perform it, and to hold the property subject to it, in the same manner as the trustee himself held it(b).

1051. The only thing to be inquired of in a court of equity, in cases of this sort is, whether the property, bound by the trust, has come into the hands of persons, either compellable to execute the trust, or to preserve the property for the persons entitled to it(c). It is upon this ground that persons, colluding with the executor or administrator in a known misapplication of the assets of the estate, are made responsible for the property in their hands; for they are treated as purchasers with notice, and thus as mere trustees of the parties, who are entitled to the assets, the latter being a trust fund under the administration of the executor or administrator(d).

1052. Upon similar principles, wherever the property of a party has been wrongfully misapplied, or a trust fund has been

(a) Story, s. 1255. And see Farmer v. Arundel, 2 W. Bl. 824; Moses v. Macferland, 2 Burr. 1012; Bize v. Dickason, 1 T. R. 185; Bilbie v. Lumley, 2 East, 469.

(b) See 2 Fonbl. Eq. B. 2, ch. 6, s. 1, note (a); id. s. 2, note (h); Com. Dig. Chancery, 4 W. 28; 2 Mad. Pr. Ch. 103, 104; Jeremy on Eq. Jurisd. B. 2, ch. 3, pp. 281, 282; Adair v. Shaw, 1 S. & L. 243, 262.

(c) Lord Redesdale. in Adair v. Shaw, 1 S. & L. 262. See also Leigh v. Macaulay, 1 Y. & C. Ex. 265, 266.

(d) Story, s. 1257; Hill v. Simpson, 7 Ves. 166. And see Harford v. Lloyd, 20 Beav. 310; Ernest v. Croysdill, 6 Jur. N. s. 740.

wrongfully converted into another species of property, if its identity can be traced, it will be held, in its new form, liable to the rights of the original owner, or cestui que trust(a). The general proposition, which is maintained both at law and in equity upon this subject, is, that if any property, in its original state and form is covered with a trust in favour of the principal, no change of that state and form can divest it of such trust, or give the agent or trustee converting it, or those who represent him in right, (not being bona fide purchasers for a valuable consideration without notice), any more valid claim in respect to it, than they respectively had before such change (b).

1053. Where a trustee, or other person, standing in a fiduciary relation, makes a profit out of any transactions within the scope of his agency or authority, that profit will belong to his cestui que trust; for it is a constructive fraud upon the latter, to employ that property contrary to the trust, and to retain the profit of such misapplication; and by operation of equity, the profit is immediately converted into a constructive. trust in favour of the party entitled to the benefit(c). For the same reason a trustee, purchasing the estate of his cestui que trust, is deemed incapable of holding it to his own use; and it may be set aside by the cestui que trust. Nor is the doctrine confined to trustees, strictly so called. It extends to all other persons standing in a fiduciary relation to the party, whatever that relation may be(d).

1054. There is no rule of equity law applicable to trusts which is more uniformly acted upon by the courts than that

(a) Ex parte Dumas, 1 Atk. 232, 233; Scott v. Surman, Willes, 400; Burdett v. Willett, 2 Vern. 638; Griggs v. Cocks, 4 Sim. 438; Wilkins v. Stevens, 1 Y. & C. 431. And as to equity aiding a purchaser who has to surrender his purchase in recovering his money, see Hope v. Liddell, 21 Beav. 183.

(b) Taylor v. Plumer, 3 M. & S. 574, See Ord v. Noel, 5 Mad. 408; Copeman v. Gallant, 1 P. W. 319, 320; Ryall v. Rolle, 1 Atk. 172; Leigh v. Macaulay, 1 Y. & C. Ex. 260, 265; Lench v. Lench, 10 Ves. 511, 517; Lewis. Madocks, 17 Ves. 57; Phayre v. Peree, 3 Dow, 116: Liebman v. Harcourt, 2 Mer. 513.

(c) Fawcett v. Whitehouse, 1 R. & M. 132, 149; Com. Dig. Chancery, 4 W. 30. (d) Bulkley v. Wilford, 2 Cl. & Fin. 177. But see Imperial Mercantile Credit Assn.

. Coleman, L, R. 6 Chan. 558; Whitney v. Smith, L. R. 4 Chan. 513.