Scott v Nesbitt
| Jurisdiction | England & Wales |
| Judgment Date | 29 January 1808 |
| Date | 29 January 1808 |
| Court | High Court of Chancery |
English Reports Citation: 33 E.R. 589
HIGH COURT OF CHANCERY
See Farquharson v. Balfour, 1836, 8 Sim. 213; Bertrand v. Davies, 1862, 31 Beav. 435; Securities, &c., Corporation v. Brighton Alhambra, Ltd., [1893] W. N. 15.
14 YES. JUN. 438. SCOTT V. NESBITT 589 [438] scott v. nesbitt. Jan. 29/i, 1808. [See Farquharson v. Balfoitr, 1836, 8 Sim. 213 ; Bert-rand v. Davies, 1802, 31 Beav. 435; Securities, (&c., Corporation v. Brighton Alhambra, Ltd., [1893] W. N. 15.] Allowance in respect of Advances for Supplies to a West India estate by persons, acting as Consignees, not under a regular appointment, but with permission of the Owners, or by one Tenant in Common ; if not upon the ground of Lien by the Colonial Law or Usage, upon the nature of the subject, requiring expenditure ; as in the case of Mines, Allum Works, &c., distinguished from a mere landed estate in this Country. Arnold Nesbitt, seised in fee simple of one undivided third part of a plantation in Jamaica, called Duckenfield Hall, with the stock, &c., subject to a mortgage, by his Will, dated the 14th of March 1779, after directing, that all his debts and funeral expences should be fully paid and satisfied, gave all his third part of the said estate to trustees to the use of his natural son Arnold Nesbitt, and his first and other sons, in strict settlement, with remainder in the same manner to his nephew John Nesbitt, and his first and other sons, and to the testator's right heirs. The trustees and John Nesbitt wrere appointed executors. Two Bills were filed by creditors ; and the Master's Report, under a Decree for taking the usual accounts, having ascertained, that the personal estate was greatly deficient to satisfy the debts, a sale of a sufficient part of the real estate wras directed; and an account of the rents and profits against John Nesbitt ; who admitted, that he had received them. A Commission of Bankruptcy issued on the 13th of April 1802, against John Nesbitt and his partners Edward Stewart and John Nesbitt the younger. The result of two examinations, one put in by John Nesbitt, the other by him with the assignees under the Commission, was, that a balance was due from John Nesbitt to the testator's estate of 974, 13s. lid. By an Order, made on the 16th of May 1805, upon a motion for the appointment of a consignee of the testator's West India estates, it was ordered, that the Defendant Jacob Franks, who was interested in the other two-[439]-thirds of the plantation, and had since the bankruptcy of the Defendant John Nesbitt been in the receipt of the consignments of the whole, should continue to receive the consignments of the said third part ; and an account was directed of the produce of that third part, received by him. Under that Order Franks, being examined upon interrogatories, stated in his account, commencing on the 4th of May 1802, and ending on the 1st of March 1805, that he had on the 1st of March 1803, paid to the assignees of Nesbitt and Co. in part of the debt, due to them from the estate, 3000, and on the 20th of the same month in full for the balance 3521, 9s. 2d. ; claiming to be allowed those payments ; which the Master refused to allow ; on the ground, that it appeared from the examinations in these causes, that no balance was due in respect of the testator's one-third of the estate ; and, on the contrary, a balance was due from the Defendant John Nesbitt., the accounting party, in respect of that third part. Franks upon the refusal of the Master to allow those claims presented a petition ; stating, that for many years before, and up to April 1802, the house of Nesbitt, Stewart, and Nesbitt, merchants in London...
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