Jopp v Johnston's Trs [1904] ScotCS CSIH_1 (15 July 1904)

Jopp v Johnston's Trs [1904] ScotCS CSIH_1 (15 July 1904)

The proceeds of Mrs Jopp's shares, though mixed with Johnston's own funds, remained sufficiently identified and earmarked in the deposit-receipts, and the law presumes that withdrawals from mixed funds are made from the trustee's own money first. Therefore, Mrs Jopp is entitled to recover the remaining deposit-receipts from the bankrupt estate.

Citation
[1904] ScotCS CSIH_1
Parties
Petitioner: Mrs Jopp; Respondent: Johnston's Trustee
Jurisdiction
Scotland
Judgment Date
15 July 1904
Procedural Posture
Civil Appeal / Appellate Judgment
Outcome
appeal dismissed; interlocutor affirmed
Legal Topics
Tracing of Trust Funds, Fiduciary Duty, Bankruptcy of Trustee, Following Trust Property, Mixing of Funds
Trusts Bankruptcy Property Law Tracing of Trust Funds Fiduciary Duty Bankruptcy of Trustee Following Trust Property Mixing of Funds

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Parties

Mrs Jopp

Petitioner

Johnston's Trustee

Respondent

Procedural Posture

Civil Appeal / Appellate Judgment

Legal Issues

  1. 1 Whether Mrs Jopp can trace and recover the proceeds of her shares misapplied by her agent Johnston from the bankrupt estate.
  2. 2 Whether the deposit-receipts purchased by Johnston with mixed funds can be claimed by Mrs Jopp as representing her property.

Ratio Decidendi

The proceeds of Mrs Jopp's shares, though mixed with Johnston's own funds, remained sufficiently identified and earmarked in the deposit-receipts, and the law presumes that withdrawals from mixed funds are made from the trustee's own money first. Therefore, Mrs Jopp is entitled to recover the remaining deposit-receipts from the bankrupt estate.

Court Disposition

appeal dismissed; interlocutor affirmed

Orders

  • Mrs Jopp is entitled to the five deposit-receipts amounting to £1000 to be taken out of the sequestration under section 104 of the Bankruptcy (Scotland) Act, 1856.