WALKER Vs. G ABDUL AZIZ SAHEB

JUDGEMENT

(1.) This is an appeal from the Original Side. The suit was brought to recover the value of certain goods consigned by the plaintiffs with the Ist defendant firm of Messrs. Walker & Co. as a free consignment. The suit Was filed on 24th August, 1922, and the written statement of Messrs. Walker & Co. was filed on 2nd October, 1922. By that time, Messrs. Walker & Co. had executed a trust-deed In favour of the creditors with the firm of Messrs. Fraser & Ross as trustees. In the list of creditors at the end of the deed, the plaintiff s name does not occur. We are informed that the written statement of Messrs. Walker & Co. was signed by Mr, Fraser under Clause (2) of the deed authorising him to defend suits against Messrs. Walker & Co. In December 1922 the plaintiff having heard of the assignment, applied by Judge s summons to make Messrs. Fraser & Ross parties to the suit and their firm was impleaded as 2nd defendant.

(2.) The plaintiffs contention that the 2nd defendant was liable on the ground that the consigned goods were held by Messrs. Walker & Co. as trustees for the plaintiffs and that the plaintiffs can follow the goods or their proceeds into the hands of the assignees, was disallowed by the learned Chief Justice on the ground that the trust fund was not identifiable. He relied on In re Hallett and Co. : Ex parte Blane (1894) 2 Q.B. 237. He also held that the plaintiffs did not give up their right of action against the 1st defendant by impleading the 2nd defendant. The 1st defendant appeals and the contention before the learned Judge has been repeated before us.

(3.) The principle has been stated thus by Lord Cranworth in Forbes v. Limond (1854) 4 De. G.M. & G. 298 at 315: