Fitzgerald v Stewart
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 1828 |
| Date | 12 June 1828 |
| Court | High Court of Chancery |
English Reports Citation: 57 E.R. 813
HIGH COURT OF CHANCERY
S. C. affirmed, 2 Russ. & My. 457; 39 E. R. 467.
Equity. Appropriation. Consignees.
[333] fitzgerald v. stewart. June 11, 12, 1828. [S. C. affirmed, 2 Russ. & My. 457; 39 E. E. 467.] Equity. Appropriation. Consignees. A receiver of an estate in Jamaica, appointed by the Court of Chancery there, in a suit by a second incumbrancer, to have the proceeds of the estates applied in satisfaction of the incumbrances, was ordered, out of the first proceeds, to pay to A., the first incumbrancer in London, the interest on her charge, and to consign the produce to B., the Plaintiff, a merchant in England, for sale. The receiver, on making the first consignment, sent the bill of lading to A., with directions to deliver it to B., on payment of her interest. The consignments were afterwards made by B.'s direction, to other merchants, who, for several years, continued to pay (I) Mr. Dunn kindly furnished the editor with the above note of this case. 814 FITZGERALD V. STEWART 2 SIM. S3*. A. her interest; but afterwards ceased to do so. Upon which she filed a bill in this country against them, the receiver and the owners of the estate, for an account of the consignments and payment of her interest, charging collusion between the consignees and the receiver. Demurrer, by the consignees, for want of equity, overruled. The Plaintiff was entitled to an annuity of 325, payable out of certain estates in Jamaica, and to the sum of 17,600 currency, charged thereon with interest at six per cent; and subject thereto, George Reid was entitled to 15,321, 10s. 7d. sterling, and interest also charged upon the same estates, which, subject to these incumbrances, were the absolute property of Edward Dalling Fitzgerald. In 1814 the annuity and the interest on the two other sums had become greatly in arrear; upon which Reid filed a bill, in the Court of Chancery in Jamaica, against the Plaintiff and Edward Dalling Fitzgerald, for the purpose of having the produce of the estates applied in satisfaction of the incumbrances. In pursuance of an order made in that suit, in May 1815, Edward Dalling Fitzgerald was appointed receiver of the estates, and was ordered to pay to the Plaintiff in London the annuity and interest due to her out of the first proceeds of the estates, and to ship and consign all the sugar then made or to be made thereon to Reid for sale. [334] In 1815 E. D. Fitzgerald died, having devised his estates to his sons, the Defendants Edward Fitzgerald and Thomas Fitzgerald, and appointed the Defendant Wentworth Bayly and one Cozens his executors; who, in 1816, were appointed receivers of the estates, in his place, and were ordered to conform to the directions contained in the order before mentioned. In May 1816 Bayly and Cozens wrote a letter to the Plaintiff, and enclosed in it a bill of lading of 160 hogsheads of sugar, on which was an indorsement addressed to the captain of the ship by which the sugar was sent, directing him in case Reid & Co. should give satisfactory security to the Plaintiff, agreeably to the order of the Court of Chancery in Jamaica, to pay to her the amount of her annuity and interest, to deliver the sugar to them, otherwise to the order of the Plaintiff. The letter, in which the bill of lading was sent, was as follows:-"Jamaica, May 3d, 1816.-Madam,-The Master not having as yet made his report on the arrears of your annuity, we have acted on the order, issued on the 9th of May last year, directing your son as receiver of the estate, to pay your growing annuity out of the proceeds of the property, and the interest of 17,600 currency, for which we have now enclosed indorsed, a bill of lading on 160...
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Rodick v Gandell
...(17 Ves. 227), Hmtnker v. Wigg (4 Q. B. Rep. 792). They cited also Ex parte Skinner (1 Deac. & Chitty, 403), Fitzgerald v. Stewart (2 Sim. 333), Lyde v. Mynn (1 Myl. & K. 683). [The Lord Chancellor, in the course of the argument, referred to Hunt v. Mortimer (10 B. &C. 44).] Mr. Rolt and Mr......
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Burn v Carvalho
...into a. contract. That has been the course of their decisions; but is certainly not the doctrine of this Court." In Pitzgeralil v. Stewart (2 Sim. 333. See S. C. 2 Russ. & Mylne, 457), and Lett v. Morrix (4 Sim. 607), the same rule was acted upon; and, in fPatsm v. The Duke Wellington (1 Ru......