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![handle is hein.slavery/ssactsengr0738 and id is 1 raw text is: PLAYER V. FOXHALL
(1) The following case on the right of retainer occurred before Sir Thomas Plumer.
Thomson v. Grant. Rolls. Dec. 22, 1823.
Alexander Donaldson devised plantations in Jamaica to several trustees, whom
he also appointed his executors. Of these, Thomson alone proved the will in the
prerogative court of the Archbishopvof Canterbury; and Grant, Campbell, Meek,
and Green, proved it in Jamaica. Thomson died ; and Grant, who was one of his
executors, proved his will here in the prerogative court. Both Thomson and Grant
were creditors of Donaldson to a large amount.
In a suit which was instituted by Thomson on behalf of himself and other creditors,
for the administration of Donaldson's estate, and which was afterwards revived by
Grant, the devise of the plantations had been declared fraudulent as against creditors,
and Grant had been appointed consignee. Grant now claimed to be entitled to
retain, in priority to the other creditors, out of the balances in his hands as consignee,
both the debt due from Donaldson to him individually, and also the debt due to
him as the executor of Thomson.
Mr. Shadwell, for Grant. The principle on which an original executor is allowed
to retain a debt due to him is, that, being the hand to pay as well as the person who
is to demand, he cannot enforce his right by legal remedies against himself : and
it cannot make any difference, whether he has the demand in his own right or in
autre droit ; nor whether he is the original executor of the debtor, or merely the
executor of that original executor ; for in either case there is the same union of
characters, out of which the right of retainer arises. The principle is clearly admitted
in Hopton v. Dryden (Prec. in Chan. 151), where the Lord Keeper says, the executor
of an executor may retain ' ; though in that case the right of retainer was not
allowed, because the creditor, who claimed to retain, was not the personal repre-
sentative of the debtor, but only the executor of an executor, who had died leaving
a co-executor of the debtor him surviving. Then the only question that can be
raised is, whether the produce of the plantations in the hands of Grant can be con-
sidered as assets in the hands of the executor. That is settled by the 5 G. 2, c. 7, s. 4
(repealed as to Negroes, by 37 Gee. 3, c. 119), which makes West India plantation
assets for the payment of debts. Here, therefore, are assets in the hands of a creditor,
who is also the personal representative of the debtor. Under such circumstances
the right of retainer must attach.
Mr. Longley, for Defendants interested under the will of Donaldson, submitted
that the produce of the estates, supposing it to be assets, came into the hands of
Grant, not in his capacity of executor, but merely in consequence of his being
appointed by the Court to be consignee ; that, with respect to the balances, his
hand was to be regarded as the hand of the Court itself ; that a court of equity
will never assist a retainer (Prec. in Chan. 181) ; and, therefore, that it will not
permit a consignee to retain, in any other character, property which has come into
his possession only in virtue of his appointment to that office by the authority of
the Court itself.
The Master of the Rolls [Sir Thomas Plumer]. The executor's right of retainer
over personal property is clear ; and by the act of Gee. II., plantations in Jamaica
are converted, with respect to the payment of debts, into personal assets, and, as
such, are possessed by the executor. Grant, therefore, is in a situation in which
he cannot sue either for the debt due to himself personally, or for that which he, as
the executor of Thomson, has the sole legal right to demand. His coming over to
this country, and acting as consignee, cannot take away from him a right which
attaches on the property in his hands. That property is personal assets, and in all
respects to be administered as such. In the character of consignee, he retains only
the charges incident to that situation. As executor, he is entitled to retain both
debts.
209
I MISS. 542.](ViewImageLocal?handle=hein.slavery/ssactsengr0738&div=1&collection=&method=preview&ext=.png&size=3)