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Decisions of the Superior Courts of New South Wales, 1788-1899

Marquis of Ailsa and others v. Watson and others [1845] NSWSupC 3

fraudulent deed, Port Phillip, appeal from Resident Judge

Supreme Court of New South Wales

Stephens C.J., Dickinson and Therry JJ, 22 November 1845

Source: Sydney Morning Herald, 25 November 1845, in Supreme Court Collection, Vol. 1, pp 28-30

SUPREME COURT. Banco Sittings

Saturday

Before their Honors the three Judges.

The Marquis of Ailsa, Alexander Hunter, James Ogilvie Fairlie, Lieut.-Colonel James MacDowall, Sir Charles D'Oyley, Arthur Forbes, and others; - Plaintiffs:

v.

James Watson, John Hunter, and Henry Ward Mason; and (by bills of revivor and supplement) William Hull and another, their assignees respectively; - defendants.

On appeal from Port Phillip.

(In equity.)

The Chief Justice delivered Judgment in the above case as follows: -

This is an Appeal, by the defendant, Henry Ward Mason, from the Decree made in this suit, at Port Phillip, by His Honor Mr. Justice Jeffcott, the then Resident Judge, on the 21st day of September, 1844; whereby a deed, dated the 9th August, 1842, executed by the defendants, James Watson and John Hunter, assigning a very large property to the said Mason, consisting of sheep, horses, and cattle, was declared fraudulent and void, as against the plaintiffs; and a reference was directed to the Deputy Registrar, to take various accounts as to that property, and as to certain landed estates, in the Port Phillip district, claimed by the plaintiffs and the said Mason respectively. The Appeal came on to be heard before us on the 18th and 19th April last; and it was then argued, and on other days in that month and in May following, as the business of the Term permitted, by the Solicitor - General, Mr. Donnelly, Mr. Gordon, and Mr. Broadhurst, for the Appellant, and Mr. Foster and Mr. Cunninghame for the Respondents; and finally, the Court took time to consider its decision.

The facts in the case, as to which there was no dispute, or which were otherwise established, are the following. The defendant, John Hunter, a nephew of the plaintiff Alexander, emigrated to Port Phillip from Scotland in the year 1838; having some money of his own, it appears, and some of other persons, said to be the plaintiffs James Ogilvie Fairlie, Elizabeth Carr, and two others his constituents. Shortly after his departure, the defendant Watson decided also on emigrating to Port Phillip; and on the 5th December 1838, an agreement was entered into at Edinburgh, between him, Alexander Hunter, and the latter's son Alexander M'Lean Hunter; out of which the plaintiffs' claim in this suit arises. By that agreement, Watson undertook to receive the son as an apprentice in agriculture; and to invest £1000 for him, then paid into Watson's hands for that purpose, in sheep or cattle in Port Phillip, to be managed by the latter until 25th November 1842, free of charge; when the whole, deducting the young man's annual expenses, were to be handed over to him. Then, Alexander Hunter engages to send Watson not less than £5000, belonging to the said Alexander and his friends; which Watson binds himself to invest in stock, and to manage in the colony receiving for his trouble and expenses therein, one-third of the annual produce. But it was agreed, that if convict labour were done away with, whereby the expenses of management should be increased, a similar increase should be allowed to Watson, should such be general in the colony. Watson undertook to send hone to Alexander Hunter, regular yearly accounts of the stock, and their increase; and to remit, to Alexander and his friends, such portions of the profits as they night direct - retaining the surplus in the colony, on the same terms. It was lastly stipulated, that John Hunter should be entitled, if he thought fit, to join Watson in partnership, under the contract; and Alexander M'Lean Hunter, after November, 1842, was also to be admitted a partner, from that date: - the shares of each as to their own stock, to be in proportion to their capital; but as to the remuneration of the partnership, for managing the stock of others, the shares of each to be equal.

Under this agreement, the defendant Watson sailed from Scotland; and, on his arrival, entered into partnership with John Hunter - the latter throwing in to the Company, as it was called, (meaning Alexander Hunter, and the parties associated with him,) the stock previously purchased by him for his own constituent; a premium or bonus being allowed them, in account, under the name of interest on the purchase money. He also brought into private partnership with Watson, certain stock and property of his own. This was about the middle of the year 1839, when ( (--------) )provisions, and the prices of every description of cattle, in all parts of the colony, were at the highest. In the course of that year, and in the month of January following, large sums were remitted, making (with the moneys belonging to John Hunter's constituents, as I understand the facts,) no less than £23,250. With this, sheep were purchased at 34s. a head; horned cattle at £7; and other stock in proportion. An Estate was also purchased, in the Sydney district; with the view, it was explained, of getting a few convict servants. In addition to the sum mentioned, it would appear that £2000 of Alexander Hunter had been sent out; but that this was appropriated by Watson, to the expenses of the concern, according to agreement, they being very heavy. The only agreement in evidence, to which this can refer, is one bearing even date with the first. By this, Alexander agrees that any part of his money may be used, 'for the purchase of land, &c.;' he receiving the same profit, as if it had been invested in stock. The £1000 of Alexander M'Lean Hunter was brought out, and invested separately. The stock intended for the other parties, or such of them as advanced their moneys, after the agreement of 5th December 1838, would seem to have been purchased before that agreement, ( i.e. by John Hunter,) was originally thrown together in like manner, or the separate portion of each constituent was distinguished, does not appear. But, on the junction of Watson with Hunter, the stock of both sets of proprietors was brought into one account without distinction. It was announced, that all moneys subsequently received would be invested separately; and a charge be made, for effecting such investment. Under the agreement of 1838, it would seem obvious that the moneys of each since each was to receive his own profits or not, as he pleased, were also to have been invested separately; but such was not the course pursued.

Some time afterwards, Alexander Hunter announces that, in addition to a third of the increase, one-half of the wool would be allowed Watson and Hunter, in respect of t he non-assignment to them of convicts; and a correspondence is carried on, in the hears 1840 and 1841, between these parties. During this period, or at least the earlier part of it, money was still poured in - £18,000 additional and upwards being remitted. All the moneys thus sent, from the commencement, were supplied by different individuals; but after the agreement of 1838, except in one instance, (that of Sir Charles D'Oyley,) the hand actually remitting was that of Alexander Hunter. Their names, and the amounts sent by each, were always mentioned with the remittance. Of the individuals who so sent moneys, the plaintiffs in this suit are the greater number; but there are some who are omitted. This is accounted for first, by the death of one of them, Lady Flora Hastings; on which event Alexander Hunter (he writes word) took her share. Secondly by one other (Captain Arabin) having retired; and transferred his share to the said Alexander. Thirdly, it would seem by Watson and Hunter having credited one of the plaintiffs (William Donaldson) with a remittance of £1000; of which only £750 was remitted for him, the residue being for his daughters, Agnes, Mary, and Margaret. Of the constituents of John Hunter, one (a Mr. Craig) is omitted, for what reason does not appear. At one period, there was some apprehension, that the bills sent for Captain Arabin would not be met; or rather that his investment would be withdrawn. Either to pay for these, or some purchases made in Scotland, and expenses incurred there, Alexander Hunter tells Watson and Hunter, that they would have to sell some of the stock. In one of his letters, written in 1840, he mentions to them his wish, that they had invested some of his money in land near Melbourne; but he admits, that they were justified in using it, to enable the Company to carry the concern on. He speaks of the parties, in one of his letters, who had sent out money after the first year, as the second Company; but no such distinction appears to have been made by Watson and Hunter. One of the parties alluded to, (the plaintiff William Allison Cunningham,) is entered in their books, in respect of the amount of his remittance, as the owner, separately, of 280 head of cattle and 8 mares. In like manner, Sir Charles D'Oyley is debited with the purchase of some land; and Dr. Donaldson with 14 mares. Yet all these parties join in the present suit, equally with the constituents of John Hunter, and those who selected Watson in December 1838; all as having one common object, of which the source and origin are (or are claimed to be) the same.

To proceed, however with the facts. The profits of the year 1840 were not satisfactory; but in 1841, with the extraordinary depreciation which then occurred, in every kind of colonial property, came complaints of severe attacks of disease among the sheep; annoyances from the native blacks; losses from unavoidable concentration of the flocks; ruinous expenses; and inability to effect sales. In one letter, Watson and Hunter say, that if compelled to refund Captain Arabin's money, there must be a fearful sacrifice. At last, in July 1841, Watson writes to Alexander Hunter, asking to be relieved from the charge; he states that property has become almost valueless, and announces that, in order to avoid sacrificing the stock, in the then state of the market, the firm proposed to draw on him, in the hope that within a twelvemonth, there would be better times. If their drafts be not paid, they say in a letter of May 1842, (on hearing of the bills being dishonoured,) everything would be swamped.

In point of fact, Watson and Hunter drew on Alexander Hunter, between the months of July 1841, and February 1842, to the amount of £20,000 or thereabouts, which they procured to be indorsed by various parties in Melbourne, and then cashed by the Banks. Of these indorsers, the defendant Mason was one, to the amount of £8200. The several bills thus drawn, with the exception of one for £600, the plaintiff Hunter refused to honor. There is a bill spoken of for £1000 drawn by John Hunter alone, which Alexander accepted and paid; on the previous undertaking by Watson, to make over stock to that value to one Campbell Hunter: but whether this is included among the £20,000 spoken of, does not very distinctly appear. Be this as it may, (and the question is not material to the present inquiry,) there was a very large amount of these bills coming back dishonoured; and the indorsers were, of course, anxious to know how they were to be provided for. Meetings took place, accordingly, between them (or some of them) and the drawers, and two of the local banks, at which propositions were discussed for the advance of money, to take up the several dishonoured bills, with the heavy charges thereon, and for the making over of property to secure its repayment. It will be most material to ascertain, what was the knowledge of the parties, or, at least, of Mason, at this period, or at any subsequent time, before the assignment of the 9th August 1842 was executed. The facts, as they really existed, and were known to Watson and Hunter to exist, having been stated. The question will be, how far those facts were known to Mason. But this is not the place for the consideration of that question. The result of the several meetings, after propositions to the same effect, to other parties interested, had been made and declined, was, the assignment to Mason in dispute; followed by conveyances, on the same terms, of several estates and portions of land. The arrangement on which that assignment was based, was the following. Mason was to give his promissory notes or acceptances, in Watson and Hunter's favour, at 8 and 12 months' date, for £20,000 in the whole; with which the several dishonoured bills, as they came back, (though there is some obscurity as to this part of the arrangement, in the wording of the deed,) were to be taken up: but Mason was to receive, and he did receive, the indemnity and guarantee of all the other endorsers of those bills, that they would contribute (each in proportion to his liability) to any loss which he might sustain thereby. The property was to be carried on and managed, as fare as possible, but sales were to be effected, to raise funds as occasion might require; the £20,000, with interest at 12 1/2 per cent., was to be repaid; a commission also on all sales and disbursements, was provided for; and finally, after these deductions, and payment of various debts specified, and all expenses incidental to the management, and arrangement generally, the surplus property remaining was to be restored. The assignment, accordingly, bearing date the 9th August 1842, was prepared and executed; the acceptances mentioned were duly given; and the defendant Mason entered into possession. The deed recites, that Watson and Hunter were seized of or entitled to considerable landed estates, and also were possessed of or entitled to a large personal property, and debts due to them; and that they had drawn sundry bills on Scotland, some of which were then dishonoured, and the others were expected so to be; and that Mason had consented, in order to supply funds to meet all such bills, to lend them £20,000 upon the security of that property; and then, in consideration of the premises, and of the acceptances of the said Mason for that sum, Watson and Hunter covenant to convey to Mason, all and singular their kinds and real estate, and they convey and assign to him all their live stock and cattle, and other personal estate; - the whole, upon the trusts above mentioned; the first in order being, as usual, the incidental expenses, including Mason's own commission; the second, they payment of the specified creditors, who are mentioned in a schedule; the third, the reimbursement of the £20,000, for which he had so become liable; and fourthly, any then remaining balance (if any) on the retired bills, and charges thereon. The conveyances of the several landed properties were executed on the 24th September following.

The plaintiffs in this suit, soon after the date of these arrangements, filed their Bill, charging the entire transaction as a fraud; alleging that the assignment in question was taken, with full knowledge that both land and stock belonged to the plaintiffs, and that Watson and Hunter had no authority, or power, to assign them; and prayed that the said assignment, accordingly may be declared void, and the defendant Mason be decreed to convey the lands, to the plaintiff Hunter, in trust for himself and the other plaintiffs. In this bill, Watson and Hunter are stated to have been merely "agents or superintendents," under the agreement of 5th December 1838, for the several plaintiffs; and all the sums of money received by those defendants from time to time, or by the defendant Hunter, on account of the several plaintiffs, are alleged to have been remitted, and received, in terms of that agreement. The whole are said to have been remitted, accordingly, by Alexander Hunter; including the moneys sent by Sir Charles D'Oyley, and by the constituents of John Hunter. It is stated that Watson and Hunter purchased, with the moneys so sent, for the plaintiffs, or some or one of them, large quantities of horses, sheep, and other cattle; and also divers landed properties, and allotments of land. Throughout the Bill, in accordance with that statement, the property is described as that of the plaintiffs; or rather, in some parts of the bill, as belonging to the plaintiffs, and (in other parts) to the plaintiffs or some or one of them. The Bill charges, that the bills drawn on Alexander Hunter were not on account of the plaintiffs, but for Watson and Hunter's private engagements, and that Mason knew that fact. It states also, that Watson and Hunter drew their proportion of increase, or thirds; and insists that they were entitled to no other remuneration. This sum sent by the plaintiff Donaldson is put at £1000, and no mention is made of his daughters. The remittance of Lady Flora Hastings is taken no notice of. The investment of Captain Arabin is mentioned, but it is stated to have been assigned to the plaintiffs Alexander Hunter and Andrew Hunter.

Of the Answers put in by the defendants, Watson and Hunter, respectively, nothing need be said beyond this; that they admit the leading facts of the remittances and investment, but deny that they drew on Alexander Hunter for any private purpose of their own. They assert, that they did so solely for the benefit of the proprietary, and to enable themselves, in the then state of affairs to carry on the management without sacrificing the stock by sales, to meet the necessary expenses of so large an establishment. It was suggested on the argument of the Appeal, that parts of those defendants' Answers must have been used at the hearing, against the other defendant; but the fact was not in any way shown. But the irregularity, had it existed, would not much affect the case; for it would not, we apprehend, justify a reversal of the Decree, if materials exist, independent of any thing in those Answers, to support it. Into that question it would not be convenient to enter here. The defendant Mason, in his Answer, asserts that up to, and at the time of the assignment, he believed Watson and Hunter to be in possession of the property as owners, fully empowered to sell the same; and that he dealt with them in that persuasion; and that Watson and Hunter covenanted with him, that they were so possessed and empowered. As to the stock, he does not deny, that he understood the plaintiffs, or some of them, to have some interest in the property, or parts of it. He admits that he saw, or heard read, the agreement of December 1838; but then he says, that he never knew what sums (if any) were remitted under it or what investments (if any) were made; and he thought, that Watson and Hunter were still the owners, subject only to Alexander Hunter's claim. He submits, that they were al all events partners with the plaintiffs; but that, even if only agents, yet as they were the ostensible owners of the stock, contracting debts in its management, they had a right to dispose of it, for their liquidation. As to the landed property, he denies having ever heard that any part of it belonged to the plaintiffs, or any of them; and he insists, that no part of the agreement of 5th December 1838, gave intimation of any intention to purchase land.

There was much controversy, on the hearing of the Appeal, whether the defendant Mason's admission, that he know of the agreement of December 1838, was in fact read against him. There is nothing to show, that it was so read; and we must deal with the case, therefore, as if it was not. But, supposing that it was, we are not prepared to say that the admission, such as it is, will much assist the plaintiffs. Here are herds of cattle, horses, numerous flocks of sheep, depasturing stations, under the direction of these persons. The property appears to have been bought, and when thought necessary sold, at their sole discretion; and, it would seem, in their own names. The whole, or nearly the whole, of the stock, bore their brands; the letters W. And H. Being merely arranged differently, in some instances to denote (for themselves, and in their confidence,) the particular interests represented. The wool is sent home, as they think fit; and they draw in their own name for the proceeds. Sheep and cattle are killed to furnish meat for their establishments, servants are hired, and supplies procured by them. Under such circumstances, will information that some other parties unknown had some interest, if some kind, in the property, or some part of it, defeat a creditor's right to deal with them for that property? If so, there will be few persons in this colony with large capitals invested in stock, with whom it would be safe to deal; because an understanding that there exists some unknown interest, in some third party, somewhere, is easily created, and not infrequently in such cases may be conveyed, with very little ground for the imputation. Then, as to the defendant's knowledge of the agreement of 1838. In the absence of information, that it had been ever acted upon, or that some of the property in question was its fruit, the mere perusal of that agreement would scarcely amount to notice; and we can by no means say, that the defendant did not safely purchase, notwithstanding. But there are other questions in the case, which render the disposal of this immaterial. We may observe, however, that if the admission, so to call it, in Mason's Answer, on this point, be not called in aid of the other evidence, we strongly doubt whether notice of knowledge of any kind, as to the plaintiffs' interest in the property, be brought home to him.

For the Appellant, several objections were taken to the Decree. First, that if the plaintiffs or any of them had any remedy, it was at law. The defendants Watson and Hunter were described as agents; the plaintiffs as owners. It is true, that they may so have perplexed matters, and so obscured their rights, and otherwise so have conducted themselves, as to have no remedy at all. But this was no reason, for harassing an innocent purchaser, for value, in Equity. Whether all the plaintiffs could sue, by the possession of a joint interest, or ought to have sued separately, in respect of their separate and distinct interests, the property was alleged to be theirs; bought for them, by agents. They must, therefore, seek that property elsewhere. This was the case made by the Bill; and it could not be departed from Secondly; in any event, there is in this suit not merely a non-joinder of parties, but a mis-joinder. If the persons claiming under the agreement, of 5th December 1838, were partners, what entitled those who purchased stock through John Hunter, before that agreement had existence, to treat themselves as partners in it? And if a partnership existed, whey were not all joined, who (by the investment of money under that agreement) composed it? Why was Mr. Craig, and why were others, omitted? But it was clear, that there was no partnership; the interests were separate and distinct. As to some of the plaintiffs, there could be no doubt that it was so; and the throwing together of the investments, by the unauthorised act of the agent, could not make those interests joint, which were intended to be several. The Bill claimed everything, exclusively, under the agreement of 1838. But, not only were several of the remittances not under that agreement, but some of the investments clearly were not. There was nothing in it which contemplated a purchase of land; and every such purchase, therefore, was clearly uncovered by the claim set up. Fourthly, the Decree was erroneous, being at all events in excess. The whole of the assignment, of the 9th August 1842, was declared void against the plaintiffs. But that assignment included, not merely the results of their remittances, but the private property of Hunter, and of Watson; and their joint property, also, in the thirds of the increase of the stock. An inquiry was directed, also, concerning the lands; with which there was no pretence for interfering. Fifthly, there was no evidence, to identify the property assigned, with any of that purchased under the agreement, or with the plaintiffs' money. Still less, that any of it was purchased for and on account of the plaintiffs. But, if not so purchased, the Bill must fail in any event; for trust moneys could not be followed, into chattels merely. Sixthly, it was broadly contended, that the defendant Mason had acquired an indefeasible claim, even were the property shown to be the plaintiffs; by their laches and misfeasance. They had trusted Watson and Hunter, not only with its possession, but with the indicia and appearances of property, in the stock; and, having thus allowed them to obtain a false credit, by enabling and permitting them to appear as owners, the plaintiffs must take the consequences. It was further contended, that even if the plaintiffs had a right, yet at least, under such circumstances, Equity would not assist them. Lastly, if notice or knowledge of the plaintiffs' title would defeat the defendant Mason, yet neither was shown. It was further insisted, that proof merely of notice would not sustain the Bill; for that actual knowledge was charged, and must therefore be proved. And, supposing even that he had knowledge, Watson and Hunter had at least a right to sell, to meet the necessary expenses of management; and they conveyed the property to Mason, for no other purpose. These were the principal points relied on. There were some others; such as, that the agreement of 1838 was not stamped, as by law is required. This last objection we will at once dispose of. It did not appear to have been taken below; and we will not, therefore, now entertain it. A very great number of cases were cited, in support of the several objections; but we do not think it necessary, in the view which we take of the matter, to refer particularly to them.

For the Respondents it was first objected, that the Appellant here had no interest, and no locus standi. He was an insolvent; his assignees were the substantial defendants; but they did not interfere. On the point of mis-joinder, it was argued that, unless the interests were opposed and conflicting, the objection could not prevail. It would not, at any rate, now be entertained, on Appeal; not having been taken, as it ought to have been, at an earlier stage. But there was no mis-joinder. The plaintiff Hunter was the manager and director of the friends for whom he acted; and their assent, with that of the others remitting money (testified sufficiently by their joining in the Bill,) to the formation of a company, was sufficient. In like manner, his directing the investment of money in land, was sufficient to bind them. His letters on these points, and the replies of Watson and Hunter, with the admissions made by them as to their purchases, were all evidence against the Appellant; for he claimed under them. Alexander alone might have sued. This was not a Bill to carry out trusts. It was merely to get rid of a conveyance; equally prejudicial to each plaintiff, as to all. There is here no conflict of interests: the interest in the object of the suit is the same. As to the non-joinder of parties, that objection is at all events too late, even if the former be not. As to the objection, that the only remedy is at law, it was replied that Equity exercises a concurrent jurisdiction, in a large class of cases; and that this was one of them: - that a void bond, for instance, would be decreed to be delivered up; that so would a deed, forming a cloud on a man's title: - that the case was one, of complicated accounts; a well-known ground for relief in Equity: - that here the Appellant, moreover, was in a fiduciary capacity; - lastly, that it was also a case, involving peculiar if not insurmountable difficulty at law; which presents another ground for coming into Equity. On these several heads of answer, many cases were cited. For the evidence of the several remittances and investments, the letters and statements of Watson and Hunter, and the entries in their books, were relied on; as being statements and admissions, against their own interest, and made by persons under whom the Appellant himself claims. But there was also other evidence, on these points; that, for instance, of Alexander M'Lean Hunter, and others. On the point of notice or knowledge, it was insisted that the former was equivalent to knowledge; and that so, in the latter would be inferred, on proof of notice. Where a man bad good reason to suspect, he was put on enquiry; information of circumstances exciting suspicion was equivalent to notice. Actual and complete knowledge was not necessary. A man is not permitted, purposely and deliberately, to shut himself out from full knowledge. The evidence of the Bank Directors, who were present at the conferences respecting the dishonoured bills, and of the two solicitors employed by Mason, and by Watson and Hunter respectively, was referred to and commented on; and it was contended, that actual knowledge was established. The circumstances most relied on, as to this, were the following: that Mason had access to Watson and Hunter's books, during those conferences or one of them; that he signed a paper after these conferences, in which the interest of absent parties in the property is distinctly referred to; that, at one or more of the conferences, the agreement of 1838 was mentioned, and the power of Watson and Hunter to assign the property was discussed; and finally, that his solicitor had notice, if he had not. As to the indicia of property, it was admitted that they were in Watson and Hunter; but it was urged, that those persons had assumed the symbols of property; that the plaintiffs had not sanctioned the assumption. The other arguments used, it is unnecessary to mention; as they were on points which we do not propose here to determine.

After full consideration of this case, we remain of the opinion intimated by us on the argument; that the plaintiffs' remedy is at law, and that therefore our judgment must be for the Appellant. We are clearly of opinion that he had a right to come here; and we are disposed to think, that the objection, had it been a good one, should have been taken before. But the Appellant, though a volunteer, is still a trustee. He has undertaken to pay certain parties, and to manage the large property now in question. He has sold and applied portions of it, for which he may be made liable. He has a resulting beneficial interest for himself. He is charged with fraud. On the objection to this suit, as the plaintiffs have shaped their case, (and we do not say that it could have been shaped better,) we entertain no doubt. It is impossible not to see that the plaintiffs will be met with difficulties, in whatever mode they proceed; but this, we conceive, forms no ground for coming into Equity for relief, in a matter of pure and simple legal right. The right, on the statement in the Bill, is simple; it is the attendant circumstances only, which are complicated. The plaintiffs' case is this. They have sent out moneys, at different times, to certain agents, to be invested for them; and they are invested accordingly. The property purchased is their own. If not belonging to them all, or in entirety, it belongs to some or one of them. It is expressly so described. Putting aside the difficulty which here arises, and the question, whether relief could be given at all, (for to whom should it be given?) on a claim so loose and uncertain, here is a claim, at all events, of property; of legal right. The defendant Mason has, they say, fraudulently obtained possession of this property. Then he can be sued at law; that is the obvious answer. On other points in the case, we offer no distinct opinion. It may be thought right to say, however, that we felt much struck by several of the objections urged for the Appellant. Of these, the most prominent are - the joinder of parties; the apparent right of Watson and Hunter, under the circumstances, to effect the assignment; and the want of sufficient proof, of any knowledge in Mason, to defeat the exercise in his favour of that right. We deem it fit to abstain, however, from entering further into those questions, because the case may again come before us; or, if it shall be sent home, on appeal from this judgment, a decision on them may be there obtained, of far higher authority. The Decree in this cause, made by the Resident Judge, bearing date the 21st September 1844, is now reversed.

Published by the Division of Law, Macquarie University