of the 29th of June might be rescinded, and the consolidated appeals admitted. The petition was supported by the affidavit of the Mr. Serjeant Spankie and Mr. Robinson, for the Now moved to restore the appeal, insisting that the various proceedings in the Court below had been strictly regular; and the leave given on the 1st of September 1835, to consolidate the appeal allowed on the 15th December 1828, with that of the 2d of September 1834, was consistent with the provisions of the charter of 1774, and the Regulations (a), which require that appeals shall be preferred within six months, but do not limit the time for perfecting the securities. They urged also, that the dismissal of the appeal from the decree of 1828 was a surprise, and ought not to have been applied for without notice. Mr. Pemberton, K. C., and Mr. G. Richards, for Objected to the appeal of 1828, which, being against the finding of a jury upon issues, ought not to have been allowed at all; but at all events, not having been prosecuted for seven years, was virtually abandoned, and could not be revived by the order for consolidating the two appeals. Mr. Baron PARKE: We think that the appellant is entitled to be let in to appeal. The rule of this Court is, that a party (a) See 13 Geo. III. c. 63; 21 Geo. III. c. 70; and Reg. XVI. A. D. 1797, sec. 2. 1837. CHOWDRY v. MULLICK. appealing from an order or decree of the Court below must present his petition of appeal to the King in Council within a year and a day. This he has, in fact, done for the consolidated appeals were allowed on the 1st September 1835; and, on the 1st September 1836, the petition of appeal to the King in Coun cil, for the reception of the appeals, was lodged, that is within the prescribed period. The Appellant is, therefore, entitled to be let in; but it must be upon the terms of his paying the costs. ON APPEAL FROM THE COURT OF FIRST Albacea Dativo, THE Appellants in this case were the mortgagees of The offices of Depositario an estate called Montrose, in the island of Trinidad, the General and property of Joseph Graham, the Depositario General Date in the of the tribunals of the island, and the Albacea Dativo island of of the estate and effects of Henry Jones, otherwise distinct and Horace Johnson, a deceased intestate, whose heirs offices, and were the Respondents. Trinidad, are separate the security given in the former is not available for defaults made On the 21st of February 1818, Mr. Graham was appointed Depositario General by the Governor of the in the island; and instructions for the performance of the latter. duties of the office having been drawn up and sanctioned by the Governor, were at the same time delivered to him. These duties consisted in administering estates placed under his charge by any tribunal; in receiving in charge any deposit of money, produce, houses, or other property, moveable or immoveable, delivered to him pending litigation, or for safe custody; the accounts of which were directed to be taken and kept in a particular form (a). * Present:-Lord Brougham, Mr. Baron Parke, Mr. Justice Bosanquet, and the Chief Judge of the Court of Bankruptcy. (a) This office was abolished by the Order in Council for the administration of justice in British Guiana, Trinidad, and St. Lucia, 23d April 1831. 1837. v. JOHNSON. On the 15th of May 1818, Mr. Graham entered DAVIDSON into a bond for the due performance of the duties of his office, and as security mortgaged, or hypothecated the plantation, and estate called Montrose, with the slaves and stock thereon, which estate was judicially valued at 55,3537. 10s. currency. On the 6th December 1822, Mr. Graham mortgaged the same estate of Montrose to Messrs. Davidson, Barkly & Co., Merchants of the City of London, for the sum of 15,512. 128. 7d. currency, and executed an indenture of mortgage to secure the same, which was duly recorded in the island. On the 5th February 1825, Mr. Graham was appointed by the Court of First Instance to be executor, or Albacea Dativo, of the estate and effects of the late Henry Jones, otherwise Johnson, who had died intestate in the island. The office of Albacea Dativo was distinct from that of Depositario General, though, from the responsible nature of the latter, it was often conferred on the person holding that office: the appointment was confined to this particular estate in question, and security was taken in the form of a deposition oath, by which the party undertaking the office swore to administer the estate of the intestate faithfully, and to make good any loss or damage it might sustain from his neglect or default. On the 6th of February 1829, Mr. Graham executed a second mortgage to Messrs. Davidson, Barkly & Co. of the same estate of Montrose, to secure the sum of 32,000l. sterling, being the amount then ascertained to be due for principal and interest on the former security of 6th December 1822, and the additional sum of 7,0007. sterling agreed to be further advanced by Messrs. Davidson & Co. to him. By virtue of his authority as Albacea Dativo, Mr. Graham received and got in various parts of the estate of the intestate Henry Jones, otherwise Horace Johnson; and upon taking the accounts he was found on the 12th of December 1829 to be indebted to the estate in the sum of 1,3251. 9s. 84d. sterling, which was afterwards increased to 1,6527. 6s. 5d. sterling. The Respondent, Catherine Johnson, and her daughter Margaret Eliza Johnson, the widow and daughter of the intestate, who was known in the island by the name of Henry Jones, having instituted a suit in the Court of First Instance to establish themselves the heirs of the deceased, obtained a decree to that effect, by which they were declared entitled to the above sum of 1,6521. 6s. 51d., the amount of the estate of the deceased, and obtained a writ of execution for that amount against the property moveable and immoveable of Mr. Graham. By virtue of this writ a levy was made upon certain parts of Mr. Graham's property, consisting of a house and premises in King-street and Abercrombie-street, in the town of Port Spain. Upon citation being issued to Mr. Graham to show cause why the property levied upon should not be sold in satisfaction of the execution issued against him, he, not being in the island, appeared by attorney, and stated exceptions in writing to the sale of the property levied; amongst which the chief was, that the debt for which execution had issued against him was due from him as Depositario General of the island, for the execution of which office the estate of Montrose was security; and after stating that the property levied was not wholly his, but was held jointly with his father, and was moreover under mortgage, he 1837. DAVIDSON v. JOHNSON. |
