1849. THE MAR CHIONESS OF BUTE and others v. MASON which it is based. A question then arises, whether the decree in the cause is to be reversed. The view which their Lordships take of the case, is this: it appears that Watson and Hunter had property of their own, (that is quite clear,) as well as being agents; they had received monies from a number of persons and others. in Scotland, transmitted separately and distinctly, on account of those parties individually, and these sums they were to lay out and administer for the benefit of the individuals who sent them. They conduct the whole business and establishment, in their own names, it being known, as it appears very distinctly upon the evidence, to the persons with whom they were dealing, that they not only had property of their own, but they had property, the greater part probably, not their own, entrusted to, and to be administered by, them, which belonged to other parties. In that state of things, Watson and Hunter drew bills: these bills are drawn as between themselves and their principals, and, whether rightly or wrongly drawn by Watson and Hunter, are sworn by all the parties to have been drawn on account of the general establishment. These bills are dishonoured, and there seems to be nothing in the case to show that there was any authority on the part of the agents to draw bills on their principals, which would personally bind them. On the other hand, if they draw bills on account of the property committed to them, although they could not bind their principals personally for the payment of such bills; yet in the situation of agents and managers of the trust property they might deal with the property itself, and, probably, might have authority either to sell or pledge such property for the payment of the bills: and then the question comes to be this; the deed which they VOL. VII. C 1849. actually do execute is a deed which binds the whole of the property, including the trust property, as their CHIONESS OF own, and the whole of the debts as their own. THE MAR BUTE and others v. MASON Now, so far as it assigns their own property for payment of their own debts, of course it would be effectual. On and others. the other hand, so far as it assigns the trust property, which certainly it does, it would be clearly bad. It also would be bad, we apprehend, with respect to those trusts for commission and management which are included in the trust deed; and, therefore, the question is, whether, the deed being in that form, in the first place, it would not be good to bind the trust property to the extent of giving those persons who had made themselves liable for the bills drawn, on what they call the joint account; whether it would not be good to the extent of making the joint property subject to the payment of those joint debts. In other words, to the payment of those bills which were drawn on account of this establishment. And if it would not have that effect, whether, at all events, it would not have been good to this extent, that those persons, Mason and whoever else advanced monies on the faith of that deed, would not be entitled to stand in the place of Watson and Hunter, who were the agents, and who, supposing a balance to be due to them from their principals, would clearly have a right themselves upon that property, and might transfer that right to Mason. Then there is a further question as to the frame of the bill filed in the Court below; we should be extremely unwilling to dispose of the case on a mere technical point. If justice could be done as the bill is at present framed, we should be anxious to do it, though at the expense of technical rules, as understood here. This bill is filed by several Plaintiffs claiming CASES BEFORE THE PRIVY COUNCIL. separate and distinct interests. To that it is said, that 1849. CHIONESS OF BUTE and others v. MASON and others. no objection to their joinder is taken upon this record, THE MARand, therefore, no objection could be taken on appeal. That would, we think, be a sufficient answer. Then comes this question; several of the persons who were parties, have died in the course of the proceedings, and the suit has not been revived against them. There may be two ways, perhaps, of looking at it; one would be, to say those persons having died leaving separate and distinct interests, you would maintain the suit in respect of the interests of those persons who are here, leaving out those who are gone. Another view which has been taken in the decree in the Court, at Port Phillip, by Mr. Justice Jeffcott, is, to treat it as a bill filed on behalf of a class, although it is not a bill filed on behalf of the Plaintiffs and other persons; and (looking at it as a matter of form) to inquire what was the property belonging to these Plaintiffs and also to other persons deceased, or persons not upon the record, who may also be interested. These are the points which seem to arise upon this appeal. Assuming that there is sufficient proof to lay a foundation for an inquiry, whether there is some property, at all events, belonging to these Plaintiffs, under this trust deed, which we are inclined to think there is, upon such attention as we have given to the evidence; and also, that the Plaintiffs had severally made remittances of money on that account, it will be necessary, in going into these points, to consider whether the decree as it originally stood, that is, Mr. Justice Jeffcott's, can be supported; or whether it will be necessary to modify or amend the decree in any way. The first decree may be wrong, the last decree is clearly wrong, 1849. THE MAR CHIONESS OF BUTE and others the Judge deciding that there was no relief in equity, but only at law. The remaining point is, that Mason, the Appellant below, was an insolvent at the time he presented the appeal. We have considered this question: the difficulty is, that he is not a mere individual; and others. he is a trustee not merely for himself, but for other persons, and being a trustee for other persons, we do not see how you can get rid of him. บ. MASON Lord BROUGHAM: The case of Rochfort v. Battershy was very fully considered. It was a case of the greatest hardship, owing to defects in the law, because it was found by a correspondence between Sir Edward Sugden and myself, that the law, to his great regret and mine, did not enable an insolvent who had paid twenty shillings in the pound to get any property which was over, because the Courts had no power to force the assignee to prove; but notwithstanding that hardship, they found that they had no power to allow him to institute a suit. The following report was made by the Judicial Committee, upon the appeal, which was confirmed by Her Majesty : The Lords of the Committee, in obedience to your Majesty's order of reference, have taken the said petition and appeal into consideration, and have "heard Counsel on behalf of the Appellants, no appearance having been entered on behalf of the Respondents, and their Lordships do this day agree humbly to report to your Majesty, as their opinion, "that the order of the Supreme Court of New South Wales at Sydney, of the 2nd of December, 1845, and 1849. THE MARCHIONESS OF BUTE and others v. MASON "also the orders of the Resident Judge of the said Supreme Court for the district of Port Phillip, of the "25th of June, the 16th of July, the 8th of October, and "the 3rd of December, 1846, excepting so much of the "last-mentioned order, as ordered taxation of the costs "of the Plaintiffs, of and occasioned by the petition of and others. "the Defendant, Archibald M'Lachlan, and payment of "the taxed amount of such costs by the said Archibald "M'Lachlan to the Plaintiffs' solicitor, ought to be "reversed; and that the decree of the Resident Judge "of the said Court for the said district, of the 21st of 'September, 1844, ought to be varied in manner fol"lowing: instead of declaring that the Deed of assignment in the pleadings mentioned, bearing date the 9th of August, 1842, and made between James "Watson and John Hunter (two of the Defendants in "this cause), of the one part, and Henry Ward Mason, "another of the said Defendants, of the other part, "is fraudulent and void as against the Plaintiffs; de"clare that under the special circumstances of this case "the said James Watson and John Hunter had autho"rity to dispose of the property entrusted to them by the Plaintiffs and other persons in the said bill "mentioned, in discharge of debts contracted and lia"bilities incurred by them on behalf of the Plaintiffs, and such other persons as aforesaid, in the manage"ment of such property, and that the said deed of "the 9th of August, 1842, is valid against the Plain"tiffs and such other persons, to the extent of subjecting such property to such debts and liabilities as "aforesaid, contracted and incurred previously to the "date of the said Deed, and that it ought to be declared "that an account ought to be taken of such debts and "liabilities as aforesaid, if any, and that provision |