Bristed v Wilkins
| Jurisdiction | England & Wales |
| Judgment Date | 04 November 1843 |
| Date | 04 November 1843 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 369
HIGH COURT OF CHANCERY
[235] bkisted v. wilkins. Nov. 4, 1843. After the order, obtained by a judgment creditor, for charging the interest of his debtor in Government stock, standing in the name of trustees, has been made absolute, under the statute 1 & 2 Viet. c. 110, s. 15, the Bank of England is still bound to pay the dividends to the trustees, being the legal hands to receive them; and the trustees are to apply the dividends according to the equitable interests of the parties. Costs given to the Bank of England out of a trust fund of Government stock, in the suit of the cestui que trusts for the application of the fund according to their interests, although the decree was made against the bank, the bank having acted upon a doubtful construction of a late Act of Parliament, before that construction had been settled by any judicial determination. Semble. A judgment creditor who has obtained an order charging the interest of his debtor in Government stock may, in a proper case, sustain a suit for the intermediate protection of the interest which he has so acquired, notwithstanding the six months prescribed by the stat. 1 & 2 Viet. c. 110, s. 14, have not expired. Under the trusts of a settlement, made on the marriage of the Defendant, Sophia Wilkins, two sums of Bank 3 per cent, consolidated annuities, 1768, 19s. Id. and 316, 18s., stood in the names of trustees (in the events which had happened), to the separate use of the Defendant, Sophia Wilkins, for her life, with remainder to her daughter, the Defendant, Georgiana Sophia Frazer, absolutely. In August 1832 370 BRISTED V. WILBLINS 3 HAKE, 236. Sophia Wilkins, as surety, joined with her daughter, Georgians Sophia, in executing a deed whereby the reversionary interest of the latter was assigned to A. Bain, by way of security for the sum of 800 and interest. Notice of the charge was immediately given to the trustees. By an indenture, dated in May 1839, Sophia Wilkins, then a widow, and her said daughter, then the wife of the Defendant, Frazer, joined with Bain (whose debt of 800 was paid off by the Plaintiff), and with Frazer, in executing an assignment of the debt of 800, and the securities for the same, and the said trust funds to the Plaintiff, upon trust, to secure the repayment of a sum of 1000 borrowed from him, with interest for the same, and to apply the dividend in payment of such interest, and also in payment of the premiums of a policy of life insurance, assigned to the Plaintiff as a collateral security, if such premiums were not otherwise paid. On the 28th of November 1839 the Defendant, [236] Maude, obtained final judgment, in an action brought by him in the Common Pleas, against the Defendant, Sophia Wilkins for 324, 7s. lid., principal, interest and costs; and on the 17th of December 1839 Maude obtained an order of Mr. Justice Coltman, nisi, for charging the said sum of 1768, 19s. Id. and 316, 18s. 3 per cent, consolidated Bank annuities with the sum of 324, 7s. lid., the amount of the judgment; which order was made absolute, by an order of Mr. Justice Maule, as follows :-" /. M. Maude v. S. Wilkins. Upon hearing the attornies or agents on both sides, and upon reading the order nisi made herein by the Honorable Mr. Justice Coltman, I do order that the sum of 1768, 19s. Id. 3 per cent, consolidated Bank annuities, standing in the names of the Eeverend J. Webster (since deceased), J. Hunt and T. W. Clement, in trust for the Defendant, and the further sum of 316, 18s. 3 per cent, consolidated Bank annuities, standing in the names of the said T. W. Clement and J. Hunt, in trust for the said Defendant, respectively, in the books of the Governor and Company of the Bank of England, shall stand charged with the payment of the sum of 324, 7s. lid., being the amount for which judgment has been recovered in this cause and interest thereon, pursuant to the statute of 1st & 2d of Victoria, c. 110. Dated the 18th of February 1840. (Signed) " W. H. maule." On the 8th of February 1841, after hearing the Plaintiff and other parties, a further order in the action was made by Mr. Justice Maule, as follows :-" Maude v. Wilkins. Upon hearing counsel on both sides, and upon reading the affidavits of, &c., I do order that the order made herein, dated the 18th of February 1840, shall be amended by making the said order apply to the ' interest of the Defendants in the sums' therein mentioned, [237] instead of the sums themselves. Dated the 8th of February 1841. (Signed) "W. H. maule." The Bank of England, being served by Maude with notice of the Judge's order, refused to pay the dividends on the two sums of stock to the trustees or to the Plaintiff. The bill was filed against Sophia Wilkins, C. Frazer and Georgiana Sophia, his wife, the trustees of the settlement, Maude, the judgment creditor, Bain, as a subsequent incumbrancer, and the Bank of England; and prayed that the charge of the Plaintiff under the assignment might be established in priority to the charge obtained by Maude, and that the Defendants, the cestui que trusts-the judgment creditor-or some of them, might pay to the Plaintiff what should be found due to him for principal, interest, premiums and costs, or that the Defendants might be foreclosed; and that in the meantime the bank might be ordered to pay, and the trustees to receive, the dividends, and that the trustees might be ordered to pay the Plaintiff a sufficient part of such dividends to satisfy what should be due and should accrue due to him for the interest and premiums. And the bill prayed that Maude and the bank might pay to the Plaintiff so much of the costs, if any, as should not be payable out of the trust fund. Mr. Temple and Mr. Willcock, for the Plaintiff, insisted on the title acquired by him under the assignment prior to the judgment or to the Judge's order; and argued that the bank was not justified in refusing to pay the dividends to the trustees. Churchill v. Governor and Company of the Bank of England (11 Mee. & Wels. 323; and see Fowler v. Churchill, Id. 57). They submitted [238] also that it was the duty of the trustees to have enforced their legal rights against the bank. 3 HARE, 239. BRISTED V. WILKINS 371 Mr. Bagshawe, for the trustees, submitted to act as the Court might direct; but contended that the trustees, having no trust funds in their hands for such a purpose, were in no default for having declined to enter into a contest with the bank on a doubtful question. Mr. Roundell Palmer, for the Bank of England, said that, after the decision of the Court of Exchequer, which, however, had been but recently pronounced (April 19th, 1843), it must be admitted that the bank might safely have continued to pay the dividends to the trustees, as the legal hands to receive them; but, until the question of the effect of the Judge's order, under the statute 1 & 2 Viet. c. 100, ss. 14, 15, had received the determination of a Court of law, the bank was in a situation of great difficulty. Having notice of the order to shew cause, which restrained the bank from permitting the stock to be transferred until the order was made absolute or discharged (s. 15), and being bound to know that the statute provided that no proceedings should be taken in equity to have the benefit of the charge until after the expiration of six months from the date of the order, there was great reason to apprehend that the protection of the fund for the judgment creditor was, at least during the six months that the proceedings were suspended, wholly cast upon the bank. The present suit having been instituted before the decision of the Court of Exchequer on the point, the bank was entitled to receive costs, as if it had been in fact the stakeholder. [239] Mr. Kenyon Parker, for other parties. the vice-chancellor [Sir James Wigram] said that he was not prepared to accede to the suggestion that a judgment creditor, having obtained a charge on the interest of his debtor in a sum of stock, was not entitled to institute a suit for the protection of his interest in the fund until six months after the order was made absolute, when the stock might be transferred and the charge thereby defeated. If the decision of the Court of Exchequer on the effect of the Judge's order, so far as...
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