1899 v. HARBISON. Madden, C.J. responsibility with another person, nor impose upon those who are suing him for the satisfaction of their claims against FALKINGHAM the assets of the deceased the obligation to make anyone else a defendant. He and the person thus holding the assets are subject, as fraudulent trustees are, to a separate liability. The new liability has been created, not by contract, but by tort; and it seems to have been always a principle in Courts of Equity that persons whose responsibility arises out of a tort may be separately sued." The principle laid down by those cases appears to be this: if the liability arises from some tortious act of the trustees the liability in equity as well as at law is always separable. In this case the charge against the deceased trustee is no more than a narrative of the transaction-nothing is claimed against him. As that is so I do not think I should have authority to stop the action against an unwilling plaintiff merely for the absence of the representatives of a deceased trustee. The Attorney-General-Those cases and that principle apply where there is only a breach of trust alleged, and relief in respect of it alone claimed. But where, as here, a general account is asked for it is different: Coppard v. Allen (h); Calvert on Parties to Suits in Equity, 171. [THE CHIEF JUSTICE. The case of Coppard v. Allen recognizes the rule I have been referring to, but it also shows that where a general account is asked for as well as the declaration of and relief for breach of trust, all the trustees and their representatives are necessary parties. Is not that so, Mr. Goldsmith ?] Goldsmith-It is so if, as indicated in Re Harrison, special circumstances are shown. The case of Coppard v. Allen was referred to in that case. The representatives of Stone were not necessary parties in the first instance. The defendant Harbison, if he wished them joined, could add them under rule 11 of Order 16, as was also decided in Re Harrison, cited as good law in the Annual Practice 1899, p. 164. 1899 FALKINGHAM v. HARBISON. Madden, C.J. The Attorney-General-The distinction is clearly shown at page 172 of Calvert on Parties, where it is stated that in cases of general administration all responsible persons must be made parties. MADDEN, C.J. I have come to the conclusion that the case is one in which the principle that circumstances alter cases is very well illustrated. I was of opinion that, in cases of breach of trust alleged against trustees, there was a several cause of action against each trustee, and that a plaintiff would have a perfect right to make any of them defendants, or omit any of them; but it appears that the rule by which I was guided to that opinion is varied where there is joined with the breach of trust a claim for a general account. I want no better authority than this case cited to me of Coppard v. Allen. The principle is also observed upon in the standard book in equity on these matters (Calvert on Parties)—that is, that unless the representatives of deceased trustees are parties the suit is abortive. If that is so-and it seems very naturalthat being a principle of equity, and not a mere matter of practice variable at the will of any judge sitting in equity, I take it that the rules under the Judicature Act adopted here cannot by any means do away with the necessity of a suit being so constituted. The Act and Rules have simply prevented the Draconian method of stopping the case, making an end of the whole litigation and the loss of all the costs. These rules, therefore, simply provided that any party or the Court might add the proper parties. The rule does not mean that a defendant who objects that the suit is wrongly constituted is himself bound to put it right, though perhaps he may do so; nor is the suit to go on though wrongly constituted. I do not think that can be allowed to happen. The necessity of joining the missing party is not for the purpose of punishing the party who has not done what he ought to have done, but to do justice between all parties concerned. That view of the rule has been adopted in our own Court in Williams v. Sandy, and it and other cases show what is to be done. There is to be an adjournment to have the matter set right, and 1899 บ. HARBISON. Madden, C.J. the party to blame is to pay the costs. If the defendant knows of a deficiency of parties, and keeps it till the day of trial, then FALKINGHAM he must abide his own costs; but if, at the earliest moment, he takes an objection that the plaintiff has not made so-and-so a party who is a necessary party, he is entitled to get costs from the plaintiff if the plaintiff chooses to go on without amendment. I think I should take the same course herethat I should give to the plaintiffs the option of going on at their peril with the suit as framed, or to take an adjournment for the purpose of adding parties and giving them an opportunity of adding them, and in that case, if the plaintiffs choose to amend, the costs of the day must be paid by them. The Attorney-General-The option should be either to have the action dismissed with costs, or else take the adjournment with costs, because otherwise the defendants who are parties might be put to great expense when the Court will afterwards dismiss the action for want of parties. Weigall-In Embling v. Parry (i) and Crowley v. Sandhurst and Northern District Trustees Executors and Agency Company Limited (k) the Court refused to go on. MADDEN, C.J. I think I should take the same course as in the case of Crowley v. Sandhurst, etc., Trustees Company. I will give power to amend generally, and adjourn the action till the suit is properly framed by adding as parties and serving the personal representatives of the deceased Charles Stone, and I think I should follow the rule laid down by Mr. Justice Webb, that where notice is given by the defence, if the amendment is not made before trial, costs of the adjournment to amend must fall on the plaintiff neglecting to amend. The plaintiffs subsequently added as defendants the two executors of the will of Charles Stone deceased — namely, Alfred Robert Stone and George Thomas-and served them. They also took advantage of the power to amend given to them by altering and adding to the charges of breach of trust made (i) [1897] 23 V.L.R. 70. (k) Ibid., p. 661. 1899 FALKINGHAM υ. HARBISON. against the defendant Harbison and Charles Stone. One of the breaches of trust alleged was as follows: "9 (i). They have expended over 9,0007. in repairs and Madden, C.J. additions to and in new buildings for the trust estate in Melbourne, and it is submitted that such was an excessive expenditure and not contemplated by the said will. Such repairs, etc., were to the extent of 5000l. or thereabouts, made out of money borrowed by them at interest, which interest has been paid by them out of the funds of the estate.” The claim was added to by asking for an inquiry as to the profits made in his business by the defendant Harbison from the use of moneys of the estate, and an inquiry whether the amount expended by the trustees in repairs was proper or excessive, and an order that the defendant Harbison repay to the estate moneys paid by way of interest on moneys borrowed for such repairs, and also an order that the defendant Harbison repay to the trust estate, with interest, a sum of 1200. misappropriated by an agent of the trustees. The action now again came on for hearing before Hood, J. Goldsmith and Bryant for the plaintiff. Isaac A. Isaacs (A.G.) and Weigall for the defendant Harbison. Agg for the other defendants, except Alfred Robert Stone and George Thomas, the executors of the will of Charles Stone deceased. No appearance for the defendants A. R. Stone and G. Thomas. The plaintiffs put in an affidavit of personal service of the amended writ, and produced from the Prothonotary's office a statement of claim filed on the 27th February 1899. Two complete copies of all the pleadings were filed at such office on the 10th March and were in Court, one having been handed to the Judge, the other produced from the office. Weigall objected that there was no affidavit that any state ment of claim had been filed in accordance with Order XIII., r. 12, on the non-appearing defendants. [HOOD, J. A statement of claim was filed, and from the date of the filing marked by the Prothonotary—namely, 27th February 1899—it must have been with the object of complying with that rule. The complete copies of the pleadings were not filed until the 10th March. I can give them an opportunity of making an affidavit that it was filed against those defendants, if that is necessary.] It has been held to be necessary. The practice upon the point has been quite settled by the cases of Embling v. Parry (l) and Crowley v. Sandhurst and Northern District Trustees Executors and Agency Company Limited (m). The object of the statement of claim being filed is to give defendants not appearing an opportunity of seeing what is alleged therein and a time (10 days) again to decide whether they will still appear. When that 10 days has expired without an appearance by those defendants notice of motion must be given to them under Order XXVII., r. 11, by leaving it at the Prothonotary's office, and an affidavit of the due service of that notice of motion made: Order XXVII., r. 11. As Harbison would be entitled to contribution. from them he has a right to see that they are properly bound. Agg adopted the objection and arguments of WeigallAccording to the practice settled by the cases there must be filed under Order XIII., r. 12, in equity cases a separate statement of claim against each defendant who has not appeared. Here there is only one statement of claim filed against two defendants. Nobody can say against which of those two it is filed. Further, the action has never been set down on motion for judgment against those defendants under Order XXVII., and the Court is not therefore in a position to give judgment against them. My clients would be entitled to judgment against both trustees, and they are therefore entitled to ask that that should be done. Goldsmith and Bryant for the plaintiffs, contra-The plaintiffs 1899 FALKINGHAM v. HARBISON. Hood, J. |