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prayed that the levy might be removed, and a new writ of execution issued, directed to be levied on the Montrose estate.
A new writ was accordingly issued against the lastnamed estate, and the same being advertised for sale, Messrs. Davidson 8 Barkly, whose mortgages were still unsatisfied, filed their terceria in the Court of First Instance, and appeared as terceros opositores, declaring to claim the preference and priority of payment out of the proceeds of the Montrose estate, insisting, among other reasons, that the debt due by Graham to the estate of Jones was a mere personal debt, and that the security given by him for the performance of the duties of his office of Depositario General did not extend to or operate as a security for the performance of the duties of his office as Albacea Dativo, or administrator to Jones's estate.
This claim of preference on the part of Messrs. Davidson 8 Barkly was argued before the Court by counsel on either side, when the Court (the second puisne Judge being dissentient) decided against the Appellants, and directed that the terceria should be dismissed.
From this decision Messrs. Davidson f Barkly appealed to His Majesty in Council, and contended that the above sentence ought to be reversed for the following reasons:
1st. Because the Appellants had a good and valid security over the property in dispute, for large sums of money exceeding its value, and were entitled to have the debts so due to them paid from the proceeds of the said estate, in preference to any claim on behalf of the Respondents.
2d. Because the claim of the Respondents against the said Joseph Graham was a claim against him as Albacea Dativo only, and gave them no security on the estate in question.
3d. Because the debt, if any, due to the Respondents, was not a debt due from the said Joseph Graham, as Depositario General, which is an office wholly separate and distinct from that of Albacea Dativo.
The Respondents, on the other hand, submitted that the judgment of the Court below ought to be affirmed, for the following reason; Because, in appointing Joseph Graham Albacea Dativo of the estate of Henry Jones, deceased, the Court of First Instance were entrusting the said Joseph Graham, in his character of Depositario General, with the administration of that estate; and consequently, the mortgage deed of the 15th May 1818 was an available security for any deficiency arising in the execution of that trust.
Dr. Lushington and Mr. Charles Turner, for the
Mr. James Wigram, K.C., and Mr. Crowder, K.C.,
for the Respondents.
Lord BROUGHAM :
For the due performance of these offices, he
executed two distinct securities, viz. a hypothecation or mortgage of the estate of Montrose, as security for the office of Depositario General, and a deposition oath or personal obligation for the due performance of that of Albacea Dativo. It is in the latter character, and by virtue of his office as administrator of the estate of Horace Johnson, that he has received the amount for which execution issued against him; and however the circumstance of his being the Depositario General might have induced his appointment to the office of Albacea Dativo, their Lordships are of opinion that the security given by him in the former office is not available for the liabilities of the latter. Their Lordships will therefore advise Her Majesty to reverse the sentence of the Court of First Instance, of 26th January 1835, and to allow the claim of the Appellants for the amount levied on the estate of Montrose, which they direct may be paid in part satisfaction of the mortgage due to them, without deduction for costs in the Court below.
ON APPEAL FROM THE COURT OF
NICHOLAS PALMER, MARTIN WILLIAMS, and RICHARD BARRETT
EDWARD BARRETT the younger, and Respondents*.
15 May 1837. THIS was an appeal from two orders made in certain causes pending in the High Court of Chancery of On motion by Jamaica, and in which the Appellants and Respon- in the Court
below, for the dents were severally Plaintiffs and Defendants.
discharge of By the first, a petition presented by the Appellants the Court
, for the discharge of a Receiver previously appointed, refused the was dismissed with costs, and a reference ordered to dismissed the
petition with the Master to inquire and take certain accounts on costs, but the footing there stated; which inquiries and accounts the order of
dismissal cerwere directed upon the authority and by reason of the tain direcstatements contained in the affidavit of the Respon- for
Defendants, * Present:-Lord Wyndford, Lord Brougham, Mr. Baron Parke, ed by their
and supportMr. Justice Bosanquet, and the Chief Judge of the Court of affidavits, in Bankruptcy.
opposition to the motion:
Held, by the Lords of the Judicial Committee, that such addition to the order was contrary to the practice of the Court, and ought not to have been made; and that, upon the facts disclosed, an order for the dismissal of the Receiver ought to have been made pursuant to the prayer of the petition.
An order having been made, dismissing a motion for the settlement of accounts, and payment over of the balance, on the ground that the accounts had not been fully taken under the original decree, or the balance ascertained, affirmed on appeal, but without costs.
dents, in opposition to the above petition for the disPALMER charge of the Receiver. By the second, a motion made BARRETT. by the Appellants, notice of which had been given
prior to the filing of the above petition, for a general reference to the Master, and directions to take the accounts in full as prayed by the original rule, and which was the object of the suit, was also dismissed with costs.
The facts and circumstances which gave rise to these proceedings are fully stated in the judgment. Mr. Pemberton, K. C., and Mr. Burge, K. C., for
the Appellants. Mr. Knight, K. C., and Mr. Bazett, for the Re
The Chief Judge of the Court of Bankruptcy :
The first of these three orders was pronounced on the 5th February 1835, dismissing a petition presented by the present Appellants on the 15th of January 1835, and giving certain directions in the cause.
The second of such orders was made on the 26th of March 1835, dismissing a motion made by the Appellants in those causes with costs.
In order to explain the view which their Lordships have taken of the question between the parties, it will be necessary shortly to trace the proceedings from the commencement. They originated in certain arrangements made between one Edward Barrett, deceased,