Burroughs v Elton
| Jurisdiction | England & Wales |
| Judgment Date | 13 April 1805 |
| Date | 13 April 1805 |
| Court | High Court of Chancery |
English Reports Citation: 32 E.R. 998
HIGH COURT OF CHANCERY
See Pearse v. Hewitt, 1835, 7 Sim. 480.
[29] burroughs v. elton. Feb. 25th, VGth, 28M, Mure It- \st, lath, April 13th, 1805. [See Pearse v. Hewitt, 1835, 7 Sim. 480.] Suit by a creditor against persons accountable, to the estate allowed in a special caso ; as, where the representatives cannot, or will not, act. One object of the suit being the establishment of an agreement for carrying on a colliery, the Plaintiff must take it subject to all engagements as a continuing concern. No security to be given for the result of the account. Whether the Plaintiff, being a creditor by judgment seventeen years old, can have a decree without putting himself iti a situation to proceed at law, viz. reviving by ticire facias, Quaere. The bill would be retained, that the debt might be substantiated by an issue, or other proceeding at law. The original bill was filed in 1798, by a creditor by judgment in 1781, of James Weston, deceased, on behalf of himself and all other creditors, &c. ; stating the death of Weston, and the bankruptcy of his executor, the Defendant Cooke ; that he never received any of the personal estate and papers of Weston, which were all possessed by his widow ; and refuses to get in the personal estate : and praying, that a receiver may be appointed ; and that the personal estate of Weston may be collected, and applied in payment of the debts. In 1800 the Plaintiff filed a supplemental bill ; stating the appointment of a receiver under an order in 1798 ; and that Cooke by his answer stated, that he had commenced a suit in the Ecclesiastical Court against the widow ; but that she had absconded. By a decree, made on the 13th of May 1800, in the original cause, it was ordered, that the Plaintiff should be at liberty to prosecute the suit in the Ecclesiastical Court, and that the receiver should be continued ; and any of the parties were to be at liberty to apply. No farther proceedings were had in that cause. The supplemental bill farther stated, that, the widow of Weston having absconded with the deeds and papers, the receiver had not been able to get in the personal estate ; which, exclusive of Weston's interest in the colliery, after-mentioned, will not be sufficient for the debts. In 1793 Weston was concerned with tlje Defendant Elton [30] and Richard Jenkins in working and carrying on a colliery 11VES. JUff. 31. BURROUGHS V. ELTON 999 at Languern in the county of Glamorgan ; to which they were entitled, as to one moiety under a lease unexpired ; and as to the other moiety, under an agreement for a lease for twenty-one years from October 1787 : Jenkins having also an interest in the reversion. In December 1793 Weston and Elton came to an agreement, that in case the share of Jenkins in the colliery, and his reversionary interest in it and the lands, under which the coals lay, should be purchased by them or either of them, it should be for their mutual benefit in equal shares. In 1794 Weston, becoming embarrassed, was arrested; and Elton, who was then engaged in treaty with Jenkins for the purchase, formed a plan to obtain the whole benefit of the concern for himself ; and with that view in 1795 charged Weston in execution upon a bond. Elton also agreed with the widow and heir of Jenkins for the re-linquishment and sale of his interest in the colliery, and the moiety of the reversion ; and he procured another lease of the other moiety. Weston died in prison in 1798. The bill, farther stating, that Weston's affairs were considered desperate ; and the Plaintiff did not find out his heir at law, the Defendant Heush, till lately ; who from ignorance of his right, or conceiving, that the creditors will exhaust the effects, or in collusion with Elton, to disappoint the specialty creditors, has not taken any steps, and refuses to join in the suit; and, that Cooke, having been compelled by the Plaintiff to prove the Will, refused to act farther, charged combination between the Defendants...
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