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![handle is hein.slavery/ssactsengr0259 and id is 1 raw text is: TURNER'V. COX [1853]
ON APPEAL FROM THE COURT OF CHANCERY OF' THE ISLAND OF
BARBADOES.
CHARLES TURNER and Others,-Appellants; THOMAS FRANCIS COX, the
WEST INDIA BANK, and Others,-Respondents * [April 13 and 14, 1853].
S. was seised of real estate in the Island of Barbadoes. S. was indebted to T.
in a sum secured by S.'s bond, and at the death of T., in the lifetime of S.,
such bond debt was due. T., by his Will, appointed S. his executor, who
proved and acted in the trusts thereof. S., after T.'s death, regularly
entered up his books, debiting himself, not only with the principal but the
interest of this debt annually as it accrued. In this state of affairs, S. died,
being at the time indebted to B. H. and Co., of Liverpool, and having by his
Will devised his real estates in Barbadoes to trustees for sale, subject to his
debts, and directed them to consign the crops of such real estates to B. H.
and Co., until the several debts due by him to them should be paid in manner
therein described. Held, (affirming the judgment of the Court in Barbadoes,
in a creditor's suit, in marshalling the assets of S.).
First. That the fact of T. appointing S. his executor, did not, in equity, change
the character of the debt due to T., and that such debt remained a specialty
debt, as though a stranger had been appointed executor, and retained its
priority [8 Moo. P.C. 315].
Second. That the Statute, 5th Geo. II., c. 7, s. 4, made real estates in the West
Indies legal assets, in such a way as to give the same priority to specialty
creditors against real estate, as they previously had against personal estate,
and that it was not competent to a Testator by devise, to change the legal
distribution of his assets, by directing a distribution equally among his
creditors [8 Moo. P.C. 317].
Quaere ? Whether the direction in the Will of S., that the produce of the real
estates should be consigned to B. H. and Co., in Liverpool, until the debt due
by him to them should be paid off and discharged, created a lien by S. in
B. H. and Co.'s favour upon the proceeds of those estates directed by the
will to be sold, for any debt which, at the time of the death of S., might be
owing to B. H. and Co.? Such point not having been raised in the Court
below by the exceptions to the Master's report, or at the hearing of the excep-
tions, the Judicial Committee, as a Court of the last resort, declined to enter-
tain the question [8 Moo. P.C. 315-16].
The case of Charlton v. Wright (12 Sim. 274), which ruled that real estates in
the West Indies might, since the passing of the 5th Geo. II., c. 7, s. 4, be devised,
so as to make them equitable assets, observed upon and overruled [8 Moo.
P.C. 316-17].
The Appellants, in this case, were the assignees of the estate and effects of Higgin-
son and Deane, [289] merchants and copartners trading in Liverpool, under the
firm of Messrs. Barton, Irlam and Higginson, and in Barbadoes, under the firm of
Messrs. Higginson, Deane and Stott. The appeal was brought from an order of
the Court, dated the 20th of November, 1851, made in a creditor's suit, instituted
in Barbadoes, by the Appellants as such assignees, on behalf of themselves and the
other creditors of William Sharp, late of that Island, against the Respond cnts, Cox
and others; by which order certain exceptions taken by the Appellants to the
Master's report upon the priority of Sharp's debts were overruled.
'The suit was brought under these circumstances: Sharp in his lifetime executed
a bond to John Tapin, late of the Island, deceased, dated the 29th of March, 1825,
for securing the sum of £1500 currency, which bond remained due at the death
of Tapin, who died in the lifetime of Sharp, having by his Will bequeathed his
* Present: The Lord Justice Knight Bruce, the Lord Justice Turner, the Right
Hon. Dr. Lushington, the Right Hon. Sir Edward Ryan, and the Right Hon. Sir
John Patteson.
VIII MOORE, 289](ViewImageLocal?handle=hein.slavery/ssactsengr0259&div=1&collection=&method=preview&ext=.png&size=3)