1. This court has jurisdiction in equity upon two grounds; because there are more than two persons having distinct rights and interests, which cannot be settled by one action at law, namely, the Michigan State Bank, Gardner & Co., DeWolf, and Gibson; and because the liability of Gardner to the plaintiffs was that of a trustee, not of the legal estate, but the qualified property, coupled with possession and power to use, and a power may be held in trust as well as an estate. .
2. The suit did not abate by the determination of the charter of the plaintiffs; because the plaintiffs, before such dissolution, transferred and assigned their effects, and especially this claim against Gardner, to Trowbridge, in trust for the stockholders of the bank and himself; and because the statute of Michigan provides that, where a suit is pending when the corporation is dissolved, it may be continued by receivers who have been appointed by the court, or by trustees on whom the property of the corporation has devolved, under such orders as the court may make in regard to costs, in the name of the corporation or in the name of such receivers or trustees.
3. By the acts done by DeWolf in making the warehouse receipt and certificate, and shipping the flour to Gibson, and the subsequent pledge of the consignment to the plaintiffs a special property vested in them — they not having negotiated the draft — and the plaintiffs therefore would have a right, on giving notice to Gibson, before he had otherwise disposed of the goods consigned, or the proceeds of the sale if sold, in the ordinary course of business, to hold him liable in equity for the amount of such draft.
Then comes the question, whether, by Gibson’s transfer of the consignment to Gardner & Co. to raise money for himself, in the manner he did, they took the flour subject to the like trust. This depends on the question whether Gibson stood in such relation as consignee that he had authority to pledge the consigned property, or whether he was so far a trustee holding the title, that his transfer to raise money for himself, although a breach of his trust, was a valid transfer by a trustee, *374so as to give a valid title to the purchasers, provided they had no notice of the trust. If he was a consignee and to be treated as such, was his conveyance by way of hypothecation valid or void ? ,
At common law, the character of Gibson being that of consignee, if he accepted the consignment, he was bound to accept and pay the draft drawn expressly against it, and could not claim to hold the goods and the proceeds in his general account, although he was a creditor of the consignor; and the hypothecation of the goods to Gardner & Co., for advances of money to himself, passed no title to Gardner & Co., because the absolute legal title was not in him, nor under his authority to sell, because he did not sell, but did mortgage or pledge the flour. See DeWolf v. Gardner, 12 Cush. 24.
The St. of 1845, c. 193, so far changes the common law that, if the consignee in possession or having the bill of lading making the merchandise deliverable to him shall make a bona fide contract of sale, such contract shall be deemed valid. He may sell for credit, against his orders; he may take his own note in payment, in other words, apply the proceeds to his own debt; or he may make any other definitive and final disposition of the property, as by barter or on unusual terms; and yet he shall be so far deemed the owner as to make such sale. But this does not authorize a pledge or mortgage. The St. of 1849, c. 216, § 3, was passed after this transaction, and cannot affect it. But it shows that the former statute was insufficient, and extends the authority, and by expressly giving the authority to pledge implies that that authority did not exist before, even where the pledge was made in good faith and with probable cause to believe that the agent had authority, and was not acting fraudulently therein against the owner of the property. See Warner v. Martin, 11 How. 209; DeWolf v Gardner, 12 Cush. 19 Ullman v. Barnard, 7 Gray, 554.
Decree for the plaintiffs.