ingly, during the period in question, in respect of which Captain Pengelley makes the present claim for advances, the actual personal superintendence of the cultivation of the estates was undertaken firstfrom July, 1860, to July, 1862-by Mr. Dalley, and from the latter period to the sale of the estates in December, 1862, by Mr. MacCubbin. With reference to Mr. Dalley's management, a difference of opinion has arisen. He was originally selected by Captain Pengelley, and the other trustees confirmed the selection, and all three executed the power of attorney to him; but it is asserted that his management was injudicious and wasteful, and that Captain Pengelley continued him improperly as manager after being warned of such mismanagement by the other trustees. With regard to Mr. MacCubbin's management no such assertions are made. Under these circumstances, from July, 1860, to the sale of the estate in December, 1862, Captain Pengelley, with the approval of his co-trustees, and in pursuance of a mutual agreement and arrangement in writing, acted as consignee of the produce of the estates, and advanced large sums of money for the cultivation of the estate to the respective managers, and the balance of which, after giving credit for the net proceeds of the estate, the proper and usual charges of a consignee, and lastly, for the proceeds of the stock on the estate at the time of the sale -viz., £818 4s. 3d.-amounts, as finally allowed by the certificate, to £1,468 1s. 11d. None of the items of this account are disputed except the charge for commission on proceeds of sale, which has been objected to on the grounds that a trustee cannot fill the legal character of a consignee, or that if he does so he forfeits his claim to the remuneration in question. All the advances by Captain Pengelley to the managers are therefore admitted, and Mrs. Coke and one of her children, Mr. H. Coke, by their counsel, and the other of her children, the Rev. E. F. Coke personally, have disclaimed any imputation of mala fides upon Captain Pengelley or Mr. Dalley. It has, however, been lastly contended, on the part of Mrs. Coke and her children, that should the claim of Captain Pengelley be allowed prima facie to have priority over all the other incumbrances, the claim filed by them, which is in respect of a sum of £617 16s. ld. Consols, which arose from the surplus rents of the estates

after payment of the annuity of £200, and which is asserted on the one hand, and denied on the other, to have been appropriated towards the capital of Mrs. Coke's portion, and which was certainly subsequently sold out, and advanced by the three trustees for charges connected with the cultivation of the estate, together with the amount of the dividends from the time of that sale, should have priority over this as well as all other claims.

The first question to be considered is, whether Captain Pengelley, as consignee of the produce of these estates, is prima facie entitled to a lien on the purchase money for the balance of his account, either including or excluding the charges for commission. The next question is, whether, if he is not so entitled as consignee, he is so entitled as a trustee in possession under the decree of the Court of Chancery. The third question is, if he be so entitled, either as consignee, or trustee, or both, the injudicious and wasteful management of the manager ought to affect his claim if proved, or in the absence of proof, be the subject of further inquiry in this or the Local Court. And the fourth question is, whether, if Captain Pengelley is so entitled, and his claim is not affected by the charge of mismanagement, the claim of Mrs. Coke and her children for the sum of Consols and dividends which I have mentioned, is entitled to priority over his claim.

Upon the first question, I am of opinion, on the authority of the cases cited, and for the reasons given in the judgments of this Court, in the cases of ex parte Davis and Boddington, and exparte Chapman, (ante p. 219), and exparte Fraser, (ante p. 235), that a consignee of the produce of a West Indian estate is prima facie entitled to a lien, not only on the produce of the estate, but also on the corpus of the estate, for advances made for its cultivation; and that if the estate be sold, and it becomes the duty of a Court of Equity to distribute the proceeds, that lien must have priority over all others. I am aware that the point is reserved by Lord Kingsdown in Fraser v. Burgess, (ante p. 246,) and by Lord Justice Turner in Daniel v. Trotman, 11 W. R. 717, but the balance of judicial decisions and dicta appears to me to be so overwhelming in favour of the lien in question, that I am compelled to adhere to the former decision of this

Court, although I cannot but feel the great responsibility of so doing.

With regard to the objection that Captain Pengelley could not act as consignee because he was a trustee, I have heard no authority cited, and I can see no valid reason why a trustee cannot act in the capacity of a consignee, especially as it might often be impossible to get any other person so to do; with regard, however, to the commission on the proceeds of sale, I think, considering the strict rules of the Court of Chancery against any profits being derived by a trustee from his trust estate, that it is very doubtful whether he is entitled to it, but as I understand this item (about £14) to have been withdrawn by Captain Pengelley's counsel, it is unnecessary for me to decide the point. Upon the main question, however, viz., Captain Pengelley's lien for his advances, my responsibility is, I think, much lessened by the fact that Captain Pengelley was not only consignee of these estates, but also a trustee in possession under a decree of the Court of Chancery, and as such is, I think, clearly entitled to priority for his advances over all other incumbrancers, or, at all events, over all other incumbrancers claiming under the decree, which includes all the other claimants now ore the Court, according to the case of Morrison v. Morrison, 2 Sm. & Giff. 544, 7 De G., M. & G. 214, and Fraser v. Burgess. In the latter case Lord Kingsdown says-" When a trustee is in the possession of the plantation, managing it on behalf of all parties, and employs a manager for the purpose, the expenses and proper advances of the manager for the benefit of the estate are the expenses and advances of the trustee, who is entitled to be reimbursed out of the estate." Accordingly, in that case the Court decided in favour of the manager's lien. In the present case the trustee, who is in possession under the decree of the Court of Chancery, has made advances, and not the manager for him; and he is evidently à fortiori entitled to the same lien.

This brings me to the consideration of the next question, whether, assuming Captain Pengelley to have priority as consignee or trustee, or as both, and the management of Mr. Dalley to have been injudicious and wasteful as asserted, but without mala fides on his part, and much less on the part of Captain Pengelley, such mismanagement ought to affect his claim, and I

am of opinion that it ought not; and upon this point some observations contained in the judgment of the Privy Council, delivered by Lord Justice Turner in the case of Daniel v. Trotman, 11 W. R., 717, appear to me in point. His lordship there says-"We collect from the order under appeal, that in the opinion of the Court of Barbadoes the appellant, a consignee, was bound to see to the application of the moneys advanced by him under any agreement" (very similar to the one which was entered into in the present case); "but however this may have been in the view which the Court of Barbadoes took of the case, we are of opinion that, as the case really stands, no such obligation rests on the applicant. The moneys advanced by him were not meant or intended to be applied to any defined or special purpose; they were of necessity to be applied at the discretion of the 'trustees' (in the present case it would be in the discretion of the manager), to whom they were advanced. To hold that the appellants' firms were bound to see to the application of these advances would in effect render it impossible that any such advances could be made. The principle which governs the cases as to the obligation of seeing to the application of money applicable to the payment of debts, seems to their Lordships to settle this question." These observations appear to me to apply equally to the case of Captain Pengelley, whether we regard him as a consignee or trustee. Declining, therefore, to go into the question of Mr. Dalley's alleged mismanagement, for the reasons I have stated, particularly the absence of any charge of mala fides against him or Captain Pengelley, I think it right nevertheless to state that the balance of the evidence before the Court at present is not in my opinion by any means in favour of the charge of injudiciousness or extravagance which has been made. It is to be observed that, during the whole of his management, the most accurate accounts were regularly furnished at very short periods (I believe monthly), and were carefully examined by Captain Pengelley and communicated by him to his co-trustees. No complaints were made till, after two unusually bad seasons, the balance turned against the estate, and then Mr. Dalley was dismissed by Captain Pengelley at the desire of his co-trustees, without any unnecessary delay, and perhaps, indeed, rather

hastily, before his management had had a fair trial. I think it right to say this much in justice to Mr. Dalley, especially as I do not feel justified in directing any further investigation of the charges against his management.

The fourth and remaining question is, whether the claim of Mrs. Coke and her children, in respect of the sum of £617 16s. 1d. Consols and dividends ought to have priority over the claim of Captain Pengelley, and all the other claims; and it appears to me that there is no reason for admitting this claim at all upon the schedule, except so far as it is included in the claim for £4,000, and arrears of annuity of £200 already appearing on the schedule. The inclination of my opinion is very strongly that there never was any appropriation of this sum of Consols to meet the principal of Mrs. Coke's portion, and that, whether there was such an appropriation as is contended or not, the trustees were justified, under the decree of the Court of Chancery and the will, in subsequently selling the same, and applying the proceeds for the cultivation of the estate. But assuming the contrary, and that a breach of trust was committed by Captain Pengelley and his co-trustees, and that they are now liable to Mrs. Coke and her children, the latter may have their remedy against him in the Court of Chancery; but they do not appear to me to have any priority over or lien upon the first charge which he has acquired on this estate by the last advances made for its cultivation, according to the rule of the civil law Interdum posterior potior est priori; ut puta, si in rem ipsam conservandam impensum est quod sequens credidit. Hujus enim pecunia salvam fecit totius pignoris causam.' It follows, therefore, that the schedule ought now to be finally settled, giving priority to Captain Pengelley's claim for the amount found due on the Secretary's certificate, less the amount charged as commission on produce of sales, which has been waived; that the certificate should be confirmed, subject to this deduction; and that, inasmuch as any injudicious or wasteful management by Mr. Dalley would not under the circumstances affect this or any other claim on the schedule, the petition for a transfer of these proceedings, with a view to a further investigation of such mismanagement, must be dismissed.