Simond v Hibbert
| Jurisdiction | England & Wales |
| Judgment Date | 03 August 1830 |
| Date | 03 August 1830 |
| Court | High Court of Chancery |
English Reports Citation: 39 E.R. 276
HIGH COURT OF CHANCERY
snioxu r. hibbert i buss. & m. 719. [719] simonn / . hibbert. Jan. -2~), iifi, An pi4 .'), 1830. Lien established against the jn-oduce of West India estates in respect of supplies furnished to the estates, upon an agreement implied from the course of dealing and conduct of the parties. In the year 1794 John Tharp, Esq., was the owner of considerable estates and plantations in the island of Jamaica. In the month of December in that year Alexander Campbell, a nephew of Mr. Tharp, then residing with him upon one of his estates in Jamaica, communicated to his uncle in conversation his intention of connecting himself in business with some house of agency at Xew Vrork, and he begged to know how far he might expect Mr. Tharp's assistance and support, should such a connection take place. In reply, Mr. Tharp assured him that, in the event of his forming the connection contemplated, he (Mr. Tharp) would send an order to that house for all the supplies wanted for his estates in Jamaica, and would consign to it in return a sufficient quantity of rum, the produce of the estates, to pay for the supplies, and would allow upon the sales the usual mercantile commission. In consequence of that conversation Campbell went to New York, and, in the month of April 1795, was admitted a partner in the house of Simond & Company. Accordingly, acting upon that understanding, Simond & Co. from time to time made shipments of lumber and provisions for the use of Mr. Tharp's estates, and received consignments of rum for sale on account of Mr. Tharp, and in payment of their shipments. This course of dealing went on during the short time Mr. Tharp remained in Jamaica, and was distinctly recognised as a permanent arrangement in several letters written by him to Simond & Co. ; and after he quitted the island it was continued as long as he lived, with his sanction, by his attorney, Mr. Green, who was the manager of his West India estates. [720] By his will Mr. Tharp devised his estates to certain trustees, of whom Green and another lived in Jamaica, and the rest were resident in England, upon trust to manage and cultivate the same to the best advantage, and after payment of all charges and expenses, to apply the profits and produce thereof in manner therein mentioned, till the testator's grandson, then an infant of tender years, should attain the age of twenty-four. And he further directed that, in order to relieve his trustees from the trouble and responsibility of keeping long and voluminous accounts, an amicable suit should be instituted in Jamaica, for the purpose of annually passing the accounts of the persons who were employed in managing the estates. Upon Mr. Tharp's death, which happened in 1805, Mr. Green, with the approbation of the other trustees, entered into the possession and management of the plantations, and carried on the cultivation of them, agreeably to the trusts of the will. Under his management exactly the same course of dealing continued between him and Simond & Co., which had existed in the testator's lifetime ; shipments of lumber and provisions being made for the use of the Jamaica estates, on the one hand, and consignments of rum in payment of them being sent to Xew York, on the other. The invoices, accounts of sales, and accounts current transmitted by the New York house to the manager in Jamaica relative to these transactions, were uniformly headed, "On the account and risk of and in account with the estate of J. Tharp, Esq., deceased;" while certain other transactions, which took place during the same period between that house and Green in his private capacity, were, in their books, kept distinct from the former...
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