A verbal agreement was entered into between D., a broker and commission agent at Sydney, and S., who speculated in sugars, in consequence of which two sums were advanced by D. to S. at different, periods, the first for andpound;3000, and the second for andpound;7999 15s. 3d., S. undertaking to place in the hands of D., for sale, certain sugars to be imported from Maurituis and Batavia D. taking the profits of the commission arising from the sale, and repaying his advances, with interest, out of the proceeds of the saIe. Of the moneys thus borrowed, the sum of andpound;3000, with other moneys, was remitted by S. to H and Co., his agents at Batavia, for the purchase of sugars. From the state of the market E, and Co. could not then purchase any sugars on S.’s account, who in the interim became Insolvent, and executed a deed assigning his property to Trustees for the benefit of his creditors. After S.’s insolvency H. and Co. purchased Mauritius sugars with the money sent by S., to whom the same was consigned and sold by the Trustees. The exact time when H. and Co. heard of S.’s insolvency did not appear, but they afterwards purchased Batavian sugars, and having heard of S.’s insolvency, consigned the sugars to S., as agent of the Trustees. S. had deposited with D. prornissory notes and acceptances of J. and J. and Co. by way of security for D.’s advances to him. J. and C. were interested in the adventure of S. After S.’s insolvency J. and Co, also became insolvent, and D. received from their estate the sum of andpound;6083 12s., on account of their Bills, and applied andpound;3000 to the payment of the first advance, and the balance towards the other sum of andpound;7999 15s. 3d. D claimed a lien on the sugars in respect of the sum of 4916 11s 3d, the remaining part of the sum of andpound;7999 15s. 3d. Held, affirming the decree of the Court below:-
First, that it was no part of the agreement that S. should invest the moneys lent him by D. in any particular way, and having assigned his property to Trustees for the benefit of his creditors before the purchase by H. and Co., the sugars consigned were for the benefit of the Trustees, and that D. had no lien on the sugars,
Second, that S.’s Trustees allowing H, and Co. to purchase Batavian sugars on their account did not affect the Trustees with any equity in favour of D. under his agreement with S.
A Bill was filed by D. praying a declaration that he had a lien on the sugars consigned from Batavia, but the Bill did not mention the Mauritius sugarrs.
Held, that as D. had so framed his Bill, he was precluded from afterwards
insisting on any new claim by way of lien on the Mauritius sugars.
Citations:
[1864] EngR 623, (1864) 3 Moo PC NS 92, (1864) 16 ER 35
Links:
Contract, Insolvency
Updated: 02 May 2022; Ref: scu.282337
