BANK.] BERNARD v. Davies. [ROLLS. Formal evidence was then given of the bankrupt's | power to make the same transaction a legal offence or arrest and adjudication, service of the charge, &c., but no offence at all according to its discretion. Yet, if in consequence of the attesting witness to the settle for the purposes of charging the bankrupt with a misment not being present the instrument was not put in. demeanor the court had authority to hold the adThis was the case for the prosecution. judication as moveable and to fix it upon one day or Edlin, for the bankrupt, submitted that there was upon another, according as it might direct, it would no case upon which to go to the jury. There was no be in possession of a jurisdiction not very different in proof of any parting with property within the meaning effect from that dispensing power claimed, in former days, of the allegations of the written period. The charge by the Crown, the exercise of which produced the Rewhich the jury would have to consider was, that within yolution of 1688. I must therefore hold that the day three months next before adjudication, namely, on the of adjudication in this case is that on which it was 2nd Nov. 1861, the bankrupt had knowingly and actually made. And as the transaction impugned is fraudulently made away with all his property, and had, not shown to have taken place within three months therefore, been guilty of a misdemeanor. He con- before the adjudication, I must hold that the charge tended that, without the production of the settlement, has legally failed. there was no legal evidence of the charge, and nothing to show that the bankrupt had placed his property out of the reach of his creditors. Stone argued that, in the charge furnished to the bankrupt, there was no allegation as to how and in what way he had made away with his property, and that the bankrupt clearly admitted on his examination having made the property over to his wife within three months of his adjudication. The COMMISSIONER said there was very much in what had been submitted to the court on behalf of the bankrupt, to show that the case ought not to be left to the jury. But upon the best judgment he could form on the moment, he thought he must let the case go to the jury, leaving the parties, if so advised, to go to the Court of Criminal Appeal upon the point. His HONOUR then directed the gentlemen of the jury to pronounce the bankrupt not guilty. A verdict of not guilty was then returned, and the bankrupt received his order of discharge. Equity Courts. ROLLS COURT. Reported by H. R. YOUNG, Esq., Barrister-at-Law. Tuesday, Nov. 4. BERNARD V. DAVIES. AND Ex parte PHILIP CARTERET BERTRAND, THOMAS BOSVILE BOSVILE, AND DANIEL JAMES LEE. West Indian estate-Manager-Costs of cultivation and management-Lien for-Executors of manager -Mortgagees in possession—Accounts. Edlin asked his Honour to take a note of the objection, and then urged that it was impossible to make the 103rd section date back the adjudication from the 9th April to the 21st Jan., in order to bring the bank-1. A lien exists upon an estate for the costs of its rupt within the penal clauses of the statute. Stone having replied, 66 Mr. Commissioner HILL.-The question for the consideration of the court is, whether the term adjudication" in the 103rd section of the Bankruptcy Act 1861 was intended by the Legislature to denote the particular day on which the adjudication had been made, or to denote some other day which, for legal purposes, was to be considered as if it had been the actual day of adjudication. The clause runs thus: "Every adjudication against every prisoner for debt so brought up as aforesaid shall, unless the court shall otherwise direct, have relation back to the date of his commitment or detention as the case may be, and shall be as valid and effectual for all purposes as if it had been made under any other of the provisions of this Act." It is contended that the words which by relation carry back the date of the adjudication to the date of the commitment, must be held effectual for all purposes; but I am of opinion that the generality of the words "for all purposes" is restrained by the succeeding words, viz., "as if it had been made under any other of the provisions of this Act." This construction puts the adjudications referred to in the 103rd section upon a level with adjudications made under any other of the provisions of this Act. But it does not place them on higher ground, as Mr. Stone's construction would do, and I think that the reference in the section to adjudications made under the other provisions of the Act shows that the intention of the Legislature was to assimilate all adjudications with regard to their legal consequences. But if this be so, it is quite clear that as no other provision of the Act would make the day of the commitment and the day of adjudication one and the same, I cannot believe that it was the intention of the Legislature to give such an incident to adjudications against prisoners. Certainly the opposite construction would not only be new in our law, but it would be a novelty of a most inauspicious kind. It is repugnant to the principles of English law that a court should be endowed with a quasi legislative 2. 2. management, where the management has been conducted by a person authorised to do so by the owners of the property; but that lien must be confined to such interest in the estate as the parties had who appointed the manager, or were privy to his appointment. Where, therefore, a party who has a life-interest only in an estate appoints a manager of it, he gives him indeed a lien on the estate in respect of his acts of management; but it is a lien on the estate for life only which the appointer has. Neither can he give, nor the manager acquire, any lien upon the inheritance of the estate as against any person who had no voice in the appointment, and who can do nothing to alter or qualify it. Though there is no express appointment of the manager, yet, if the parties interested in the estate know that a person is performing the duties of a manager, and do not interfere, they must be presumed to have acquiesced in his continuance in that office; and they cannot then dispute his claim to a lien on the estate for the expenditure which, by their tacit acquiescence, they have encouraged him in making. Where a receiver or manager of an estate is appointed by the court, in a suit properly constituted, such manager or receiver is to be considered as appointed on behalf of all persons interested in the property; and he is entitled to his ordinary commission and allowances, and also to a lien on the estale, as against all persons interested in it, for the balance, whatever it may be, that may be found to be due to him on taking his accounts. 4. The owner of the inheritance in the estate cannot take the crop which accrues for his benefit next ofter the death of the tenant for life, without paying for the supplies which produced that crop; and to that extent, but no further, the manager of the estate who has furnished those supplies is entitled to a lien on them as against the inheritance. those, however, which the manager may have provided during the lifetime of the tenant for life, For ROLLS.] Bernard v. Davies. [ROLLS. for crops gathered in his lifetime, the manager | cording to the laws of Dominica. The marriage bemust resort to his estate: 5. The remainderman in such a case is entitled, on the death of the tenant for life of the property, to give notice to the manager of it, that he is not his agent, or acting by his authority; and that he is to have no claim thereafter upon the remainderman or his estate; after which, the manager can only continue in possession of the property, either us a mortgagee in possession in respect of a prior existing lien, or as holding adversely to the will of the owner; and, holding in that latter character, he can have no claims in respect of any acts done by him to the property, however beneficial such acts may have been. 6. On the assumption that the executors of a deceased manager of an estate, who kept possession of the estate, were entitled to a sum of money for supplies furnished by the manager in the last year of the life of the tenant for life, in order to provide the crop accrued in the year after his death for the the benefit of the owner of the inheritance, the deceased manager was treated as a mortgagee in possession; and the accounts were directed to be taken between his executors and the owner of the inheritance, on the like footing as to them. 7. If a mortgagee, not being a party to a suit in which a receiver or manager is appointed-or if any mort- | gagee-allows his mortgagor to manage the estate, and to receive the produce of it, without any interference on his part, he is not bound or affected by the previous management. He cannot require any account of past profits or past produce, and in like manner cannot be injured by any of the costs of management incurred subsequently to his mort ⚫gage. He may take possession of the estate at any time he may think fit, when the accounts will be taken against him as mortgagee in possession; but neither he, nor his interest in the estate, will be liable for, or affected by, the previous management of the mortgagor, his agent or manager. tween Edmund Rufus Bertrand and his then intended wife, a Miss Frances Elizabeth Lee, took place; and Philip Carteret Bertrand was the first son of the marriage. On the 25th June 1849 Edmund Rufus Bertrand entered into an agreement with Mr. William Davies for the cultivation and management by him of the estates, and for the payment out of the produce thereof of certain debts due from Mr. Edmund Rufus Bertrand to the Colonial Bank and other parties. Davies accordingly managed the estates till 1855, in the month of April in which year Edmund Rufus Bertrand died, having made a will, but without having exercised his power of appointment under the settlement, and leaving Philip Carteret Bertrand surviving, who then demanded possession of the estates. It was believed that Davies never rendered any account of his management to Mr. Edmund Rufus Bertrand. Mr. Davies died in 1857, having made a will and appointed trustees and executors thereof. Mr. Philip Carteret Bertrand then again demanded possession of the estates from Davies' executors, but without success. No accounts of the management of the Tabery estate were rendered until 1860, and they then only commenced with the death of Mr. Edmund Rufus Bertrand, and ended in Feb. 1860, showing a balance of 3210l. 8s. 6d. in favour of the estate of Mr. Davies. There was also a further balance alleged to be due to Mr. Davies' estate of 1900., making together the sum of 5110l. 8s. 6d., and the executors of Mr. Davies refused to give up possession of the Tabery estate, except on payment of that amount. After the administration decree in the cause, a claim was taken out for the gross amount of the produce admitted by the executors of Davies to have been made out of the estates; leaving them to discharge themselves by showing their payments for expenses incurred in the making of that produce. That claim, however, was still open, and on the hearing of the summons in question the solicitor of Mr. Philip Carteret Bertrand demanded unconditional possession of the estate for him, without reference to any lien for any debt. On the other hand it was contended that possession could only be given to him, subject to any claim for lien by Mr. Davies' executors. Secondly, as to the Waganary estate : This cause, which was argued before the long vacation, came on upon an adjourned summons from chambers. The suit was virtually one for the administration of the real and personal estate of a Mr. William Davies, and the summons was taken out by the plt. for obtaining an order, "that the executors and trustees of the said William Davies might be at liberty to retire from the cultivation of two estates called the Tabery and Waganary estates, in the island of Dominica, and for directions as to giving up possession of the said -estates." That summons was taken out in conse-quence of a claim made in the administration of the testator's estate by Mr. Philip Carteret Bertrand, in respect of the produce alleged by him to have been made on the two estates by Mr. W. Davies and his -executors, after the death of Mr. Edmund Rufus Bertrand, the father of Mr. Philip Carteret Ber-charges on the Waganary estate, but, in the events trand. The facts with regard to the two estates were shortly these; and, first, as to the Tabery estate : 1. By the marriage-settlement of Mr. Edmund Rufus Bertrand, dated the 8th Feb. 1823, the Tabery estate was settled to the use of Mr. Edmund Rufus Bertrand for life, with remainder to trustees to preserve contingent remainders, with remainder upon certain trusts for securing a jointure of 500% per annum to Mr. Edmund Rufus Bertrand's widow, with remainder to the use of such of the sons of the marriage as Edmund Rufus Bertrand should appoint; and in default of appointment to the use of the first son of the said Edmund Rufus Bertrand by his then intended wife, and the heirs of the body of such son, with divers remainders over. The settlement also contained powers for making provisions for younger children; and it was duly registered acNo. 131 On the 24th Oct. 1846 Mr. Edmund Rufus Bertrand mortgaged that estate to Messrs. Thomas Bosvile Bosvile and Daniel James Lee, to secure the sum of 2356l. 16s., with interest on a former charge. That mortgage was duly registered according to the laws of Dominica, on the 13th Sept. 1847. The Waganary estate was not devised by the will of Edmund Rufus Bertrand, but descended on his death to Philip Carteret Bertrand, as his heir-at-law, subject to the legal incumbrances thereon. There were several other incumbrances and which had happened, and to which it is not necessary more particularly to refer, Messrs. Bosvile and Lee were the first mortgagees of it. On the death of Edmund Rufus Bertrand, Philip Carteret Bertrand and the first mortgagees demanded possession of the Waganary estate, which was refused by the executors of Mr. Davies. In Feb. 1860, however, they rendered an account of that estate, showing a balance in their favour from the management of it of a sum of 10971. 58. 8d., but no particulars of that balance were then furnished, and it was believed that it had been since much increased. Under these circumstances, the summons in question was taken out on behalf of Mr. Philip Carteret Bertrand and Messrs. Bosvile and Lee, and was to the effect already stated. Follett, Q.C. and Nalder appeared in support of the summons. ROLLS.] BERNARD V. DAVIES. [ROLLS. Selwyn, Q.C. and Bagshawe, jun. opposed it on such managernent from the 26th April 1855 to the 1st behalf of Mr. Davies' executors. Follett, Q.C. in reply. The following authorities were cited in the arguments and referred to by his Honour in his judgment, infra:-Scott v. Nesbitt, 14 Ves. 438; Leith v. Irvine, 1 Myl. & K. 277; Farquharson v. Balfour, 8 Sim. 210; Shaw v. Simpson, I Y. & C. C. C. 732; Morrison v. Morrison, 2 Sm. & G. 564; s. c. on app. 7 De G. M. & G. 214: Fraiser v. Burgess, 6 Jur. N. S. 327; Sayers v. Whitfield, 1 Knapp. 133. Sept. 1857 when he died? and, thirdly, whether there exists any such lien in respect of what may have been expended by the executors for their management of the estates since the 1st Sept. 1857 down to the present time? I do not, in considering this case, make any distinction between that of a consignee of West Indian estates in this country, and of a manager of estates in the West Indian Islands themselves. They appear tome to rest on the same footing; and the principles applicable to one are equally so to the other. So reThe MASTER of the ROLLS.-The question argued garding it, then, I have consulted the various authoon this summons is twofold. First, whether the ex-rities to which I was referred; and such other casesecutors of a testator, who was the manager of certain West Indian estates, can claim a lien on those estates for the balance due to the testator in respect of his management and cultivation thereof previously to his decease; and, secondly, whether the executors who have continued that management since the decease of the testator are entitled to a similar lien for the balance due to them in respect of such subsequent management. There are two estates, differently situated, and the questions accordingly divide themselves into several branches which must each be considered separately, though they will all be found to rest on the same principles. One estate is called the Tabery estate, and the other the Waganary estate, both being on the island of Dominica. The testator, whose name was Wm. Davies, died on the 1st Sept. 1857. He was the manager of both estates from 1849 up to the time when he died. He was constituted manager by certain articles of agreement of the 25th June 1849, made between Edmund Rufus Bertrand, the owner of the estates of the first part, the testator of the second part, and various execution-creditors of Edmund Rufus Bertrand of the third, fourth and fifth parts. The deed provided that the testator was to manage both estates, and pointed out the manner in which he was to apply the proceeds. The estates themselves were differently limited. The Tabery estate was limited to Edmund Rufus Bertrand for life, with remainder to his first and other sons in tail male. The Waganary estate was limited to Edmund Rufus Bertrand in fee. Edmund Rufus Bertrand died on the 26th April 1855, leaving Philip Carteret, his eldest son and heir in tail, surviving him. On the death of his father, Philip Carteret Bertrand called upon the testator Wm. Davies to give up possession of both the estates to him; but the testator refused to do so unless he were paid the balance due to him for the management of the estates from 1849, when he was first appointed manager. In consequence of such refusal, Philip Carteret Bertrand did not obtain possession of the estates, and took no active steps to obtain possession of them. The testator continued to manage both the estates until his death in Sept. 1857. Upon his death P. C. Bertrand again applied to the executors of William Davies for the possession of the estates; but they refused to deliver them up, unless they were paid the balance due to the testator for his management. Still Philip Carteret Bertrand took no active steps to enforce possession, but gave them notice that he would not be answerable for any expenses, or any of the supplies furnished. The executors of the testator have therefore continued in possession of, and have managed, both the estates down to the present time. The estates have always been worked at a loss. Philip Carteret Bertrand has received nothing from them, and a large balance is claimed against each estate. I will consider the case of each estate separately. With respect to the Tabery estate, the question of lien divides itself into three branches: first, whether there exists any lien on the estates for the sum due to the testator up to the death of the tenant for life on 26th April 1855, or for any and what part thereof? secondly, whether there exists any such lien for the sums due to the testator in respect of as appeared to me to have any material bearing on the Levy under fi fa. followed by declaration of insolvency-After sale bankruptcy, the act being the filing of the declaration of insolveney-Goods do not pass to assignee 207 275 A nuisance-When injunction granted for..... Railway company refusing to deliver goods addressed to-Legal Goods in order and disposition of, with consent of true owner- 248 259 Au editor and writer of money articles in a newspaper is a servant, 290 CHARITY. CHOSE IN ACTION. Equitable assignment of, with power to sue-Action on a set-off pleaded by defendant-Remedy as in law CHURCH, LAW OF. (See Ecclesiastica! Law-Parish Law.) 297 238 315 |