Congreve v Evetis
| Jurisdiction | England & Wales |
| Judgment Date | 21 June 1854 |
| Date | 21 June 1854 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 457
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 2 C. L. R. 1353, 23 L. J. Ex. 27, 18 Jur. 655. Referred to, Morrise v Delobbel Flipo, [1892] 2 Ch 359.
[298] CoNGREVE v. E VET is June 21, 1854. - S, by indenture, a&bigned to the plaintiff (amongst other things) his ciops of grain upon his faim, as a security for money lent. By the indenture it was declared and agreed that it should be lawful for the plaintiff at any time to seize and take possession of the crops and other effects thereby baigained and sold, and all such crops and other effects which should or might from time to time be substituted in lieu of the ctopa hereby assigned, or which should from time to time be found orr or about the farm, and the same to sell and dispose of, and out of the proceeds pay all costs and retain all monies due to the plaintiff. On the 21st of February, 1849, a sum of 12971 18s 7d. being then due to him, the plaintiff seized and took possession of some crops of grain then giowing on the faim, and which had be on sown by S. subsequently to the execution of the indenture. In Trinity Tetai, 1848, the defendant recovered a judgment against S , and on the 22nd of February, 1849, a writ of ti. fa indorsed to levy .'3101 19s Jd , was issued on such judgment and delivered to the sheriff for execution, who on the same day seized the sard crops On the 8th of March, 1849, S petitioned the Insolvent Court under the 7 & 8 Viet, c 9b. The official assignee in the tiist instance claimed the crops, and a bill was filed by him in the Court of Chanceiy to restrain the plaintiff from selling them, which bill was dismrssed upon terms agreed on between the plaintiff and the assignee, and the latter then abandoned all claim to the crop- The sheriff afterwards sold the crops for 2941 which came to the hands of the defendant; and the plaintiff having sued the defendant for the same-Held - First, that, supposing the debtor had not petitioned the Insolvent Court, the plaintiff had a right to recover , for though the power to seize future crops, it unexecuted, would have been of no avail against the defendant's execution, since it gave no legal or equitable title to any specific crops, yet when the power was executed to the extent of the plaintiff's taking possession of the then growing crops, he was rn the same situation as if the debtor himself had delivered them to him, and consequently his title would prevail against that of the defendant. -Secondly, that the circumstance of the defendant having petitioned the Insolvent Court subsequently to the seizure and before the sale of the crop^ did riot affect the plaintiff's right, since the meaning of the 21st section of the Ex. Div. xii. -15* 458 CONQREVE V. EVETT8 10 EX 299. 7 & 8 Viet, c 96, is that no creditor under a bill of sale not completely executed before the petition, shall avail himself of it to the piejudice of the geneial body of creditors; and theiefore, although this bill of sale was inoperative as against the assignee, yet, as he abandoned his claim, it was valid as against the defendant. -Semble ò that if the pioceeds of the sale had been more than sufficient to satisfy the defendant's execution, as to the surplus, he would have been liable to the assignees, and therefore would have had a good defence against the plaintiff.- Held, also, that in the case of an execution founded on a war unit of attorney within the 108th sect of the 6 Geo. 4, c. 16, the effect of that enactment is not to render the writ void, and thereby let in an execution at the suit of a subsequent adverse judgment cieditor, but only to vary the legal operation of the vvnt, so as to render a sheiiff who executes it liable in tort. [S. C. 2 C. L. R. 1253, 23 L. J. Ex. 273, 18 Jur. 655. Kef erred to, Monus v Delobbel-Fhpo, [1892] 2 Ch 359.] This action was brought to recover 2941 , and aftei the issuing of the wilt, and by consent of the parties and order of a Judge, the following case wat, stated for the opiuion of this Court without any pleadings .- In the years 1846, 1847, and 1848, the plaintiff advanced from time to time to H. Small, who was then the owner and occupier of a dwelling house and pi enures at Haversham in the county of Bucks, and also occupiet of a faim and lands theie, several sums of money by way of loan, amounting in the whole to 10061. 18s 7d , and for securing their repayment, H. Small, by a deed dated the 26th of January, 1648, made [299] between himself of the one part, arid the plaintiff of the other part, after reciting that the plaintiff had lent to H. Small various sums of money amounting to the above sura, H. Small assigned and transferred to the plaintiff all his household goods in and about his said dwelling-house, and all his live and dead farming stock, crops of grain, and the whole of his personal estate in and about the same, and upon and about his said farm and lands. To hold the same unto the plaintiff, his executors, &c , as a security for the payment of the said sums of money, and of all such further sums as H Small might thereafter owe and become indebted to the plaintiff, not exceeding in the whole 20001. And by the said indenture it was declared and agreed, that it should be lawful for the plaintiff, his executors, &e., by virtue of the said indenture, at any time or times to seize and take possession of the said household goods, live and dead farming stock, crops of grain and hay, and other etlectsand premises thereby bargained and sold, and of all such live and dead farming stock, crops, and rmplenients of husbandry, and other effects which should or might from time to time be substituted in lieu of the said stock, crops, and implements of husbandry thereby assigned, or any part thereof, or which should for the time being be found in or about the messuage or dwelling-house, farm, lands, and premises at Haversham aforesaid, or any or either of them, either in the lifetime or after the decease of the said H. Small, and the same to sell and dispose of by public auction or private contract in such manner as the plaintiff, his...
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