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Unreported Judicial Decisions of the Privy Council, on Appeal from the Australian Colonies before 1850

Bute v. Mason [1849]

equity - deed of assignment - fraud

Judicial Committee of the Privy Council, 1849

Appeal from New South Wales

Reported as Bute (Marchioness of) v. Mason (1849) 7 Moo. P.C. 1; 13 E.R. 779[1] 

            The Printed Papers for the appeal are in Printed Cases in Indian & Colonial Appeals Heard in 1849, vol. 45 (kept in the office of the Judicial Committee of the Privy Council)).  They record the full title of the case as The Most Noble Sophia Marchioness of Dowager of Bute v. Henry Ward Mason, James Watson, John Hunter, Archibald M'Lachlan and William Hull.  They include the following in handwriting:

"Reported 5th. July 1849.

                        Present -          Lord Brougham

                                    Master of the Rolls

                                    Judge of the Admiralty

                                    Chancellor of the Duchy of Cornwall.

Their Lordships agreed to report &c. (Vide Judl Comtee Minute Book Page 208.)"

Source: Minutes of the Judicial Committee, 1845-1853, vol. 3 (kept in the office of the Judicial Committee of the Privy Council)).

23 June 1847 (p. 114): present, Lord Brougham, the Master of the Rolls, the Judge in Admiralty, the Chancellor of Cornwall.  The Minutes record that the committee read the petition for leave to appeal, and continue:  "Their Lordships agreed to report to H.M. that such leave to appeal ought to be granted from the said order of the said Sup. Court of the 2nd. December 1845 and likewise from the supplemental orders made in the said cause, upon giving security &c. for 500£ for costs &c."

26 June 1849 (p. 200): Same members present, heard counsel for the appellant.

27 June 1849 (p. 201): Same membership present, continued hearing counsel and stood over to 5 July on the suggestion of the appellant's counsel.

5 July 1849 (pp 208-210): Same membership present, the minutes noting:

"(Reported). Their Lordships agreed humbly to report to H.M. that the Order of the Supreme Court of N.S. Wales at Sydney of the 2nd. December 1845 and also the Orders of the Resident Judge of the said Supreme Court for the District of Port Phillip of the 25th. June 16th. of July 8th. of October & 3rd. 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 the Defendant Archibald McLachlan and payment of the taxed amount of such costs by the said Archibald McLachlan to the Plaintiff's Solr. ought to be reversed and that the decree of the Resident Judge of the said Court for the said District of the 21st. Septr. 1844 ought to be varied in manner following, "Instead of declaring 'that the Deed of Assignment in the Pleadings mentioned bearing date the 9th. August 1844 and made between James Watson & John Hunter (two of the Defendants in this cause) of the one part and H.W. Mason another of the said Defendants of the other part is fraudulent and void as against the Plaintiffs declare that under the special circumstances of this case the said James Watson & John Hunter had authority 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 liabilities incurred by them on behalf of the Plaintiffs and such other persons as aforesaid in the management of such property and that the said deed of the 9th. August 1842 is valid against the Plaintiffs 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 ought to be made for the payment of the same out of such property as aforesaid and that it ought to be declared that save as aforesaid the said Deed is fraudulent and void against the Plaintiffs and with this variation that the said last mentioned Decree ought to be affirmed and their Lordships are further of Opinion that all sums which may have been paid under the Order of the 8th. October 1846 by the said Plaintiffs to the said Defendant Henry Ward Mason or to Mr. John Duerdin his Solr. ought to be refunded by the Defendant H.W. Mason to the appellants or to their Order and that the Defendant Archibald McLachlan ought to refund and pay to the Appellants or their Order such sum as he or his Solr. the said John Duerdin may have received from the said Plaintiffs or any of them on account of Costs and that a Receiver ought to be re-appointed of the property in question and the Injunction renewed and that the property and monies handed over and paid Henry Ward Mason on the discharge of the late Receiver together with any increase of such property and money produced by any sales of any part thereof ought to be refunded and restored to the Receiver so appointed after making all just allowances and with these declarations their Lordships recommend that the case be remitted to the Court below with directions to give effect to this Report and to prosecute the enquiries and take the accounts directed by the Decree of the 21st. day of September 1844 and those which it by this Report declared ought to be made or taken and to proceed in the cause consistently with Your Majesty's Order upon this report and as the justice of the case may require."

Notes

[1]  The Appeal Book 1837-1876 (kept in the office of the Judicial Committee of the Privy Council) includes the following:

Whence 1847

Parties Marquis of Bute & Others v Mason & Others

lodged 14/6/47

Reference refd by genl order of 14/11/46

Report 23/6/47

Approval 28/7/47

Soclrs App W Braikenridge 16 Bartletts Building

Resp [blank]

Petit for leave to appeal

The next line of the Appeal Book is as follows:

The Appeal Book 1837-1876 (kept in the office of the Judicial Committee of the Privy Council) includes the following:

Whence [blank]

Parties Do. v Henry Ward Mason, James Watson & John Hunter, Archibald McLachlan & Wm Hull

lodged 7/12/47

Reference refd by gen. order of 22/11/47

Report 5/7/49

Approval 18/7/49

Soclrs App W Braikenridge 16 Bartletts Building

Resp [blank]

Petit for leave to appeal

Published by the Division of Law, Macquarie University