Edwards & Company v Picard
| Jurisdiction | England & Wales |
| Year | 1909 |
| Date | 1909 |
| Court | Court of Appeal |
Practice - Execution - Receiver - Patent - Equitable Execution -
The defendant, against whom the plaintiffs had recovered judgment in an action, which remained unsatisfied, was resident abroad, and had no property within the jurisdiction available for the purposes of a fieri facias, or other ordinary process of execution. He was the registered owner of three English patents, but it was not shewn that he was in receipt of any profits therefrom by way of royalties or otherwise. On an application for the appointment of a receiver, by way of execution, of all rents, profits, and moneys receivable in respect of the defendant's interest in the patents:—
Held by Vaughan Williams L.J. and Buckley L.J. (Fletcher Moulton L.J. dissenting), that an order for appointment of a receiver could not in such a case be made.
APPEAL from an order made by Sutton J. at chambers refusing to appoint a receiver as after mentioned.
In an action brought by solicitors for work done and disbursements made for the defendant, the plaintiffs recovered judgment against the defendant for 221l. 8s. 11d. and costs in default of appearance, which judgment remained unsatisfied. The defendant resided in Paris, and appeared to have no property within the jurisdiction available for the purposes of a fieri facias or other ordinary process of execution. He was the registered owner of three English patents relative to taximeters. It was not shewn that he was in receipt of any profits therefrom, either by way of royalties or otherwise.
An application having been made at chambers by the plaintiffs for an order for appointment of a receiver of all rents, profits, and moneys receivable in respect of the defendant's interest in the before-mentioned patents, in or towards satisfaction of the above-mentioned judgment, Sutton J. refused the application.
J. D. Crawford, for the plaintiffs. A patent is in the nature of a chose in action: British Mutoscope and Biograph Co. v. Homer.F1 It cannot be taken in execution under a fi. fa. or other ordinary process of execution at common law. These patents are, however, assets of the defendant, and the remedy by equitable execution extends to whatever is considered in equity to be an asset of the judgment debtor: Blanchard v. CawthorneF2; Gore v. BowserF3; Kerr on Receivers, 5th ed. p. 110. The decision in Holmes v. MillageF4, on the authority of which this application was refused at chambers, has really no application to the present case. There the appointment of a receiver was made in respect of the future earnings of a judgment debtor in his employment, and it was held that, inasmuch as no Court could before the Judicature Acts have made such an order by way of execution, there was no jurisdiction to make such an order since those Acts. There is no analogy between such an order and that which is asked for in the present case. It could not be said that the future earnings of a judgment debtor were existing assets like these patents. It is contended that a Court of Equity could before the Judicature Acts, where there was no property available for the purpose of legal execution, have made an order for the appointment of a receiver by way of equitable execution in respect of property of a judgment debtor like these patents which could not be reached by legal process of execution. [He also cited In re Shephard.F5]
The defendant, not having appeared in the action, was not represented by counsel.
July 30. The following written judgments were read:—
VAUGHAN WILLIAMS L.J. This is an appeal against an order of Sutton J. refusing to make an order on plaintiffs' summons for the appointment of a receiver of the defendant's interest in certain patents.
I am of opinion that this appeal should be dismissed.
The affidavit filed on behalf of the plaintiffs, after stating that the defendant has no property within the jurisdiction of the Court which can be taken by way of fi. fa., elegit, or other ordinary process of execution, and that the only property which the defendant possesses in this country is three patents relating to taximeters, sets forth that the plaintiffs desire the appointment of a receiver of the defendant's said property.
I think that the judgment of Lindley L.J. in Holmes v. MillageF6 is really conclusive of this case.
This is not a case in which the plaintiffs rely upon any charge or assignment of the defendant's interest in these patents in their favour, directly or indirectly. Now, as pointed out by Lindley L.J., the only section of the Judicature Acts expressly applying to receivers is s. 25, sub-s. 8, of the Judicature Act, 1873, which provides that a receiver may be appointed in all cases in which it shall appear to the Court just or convenient that such order should be made. Holmes v. MillageF6 decides that the Court cannot grant equitable execution by the appointment of a...
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...... words is, in our view, the same and their effect as described by Fletcher Moulton LJ in Edwards & Co v Picard 2 at p 907 is, `where it is practicable and the interests of justice require it`. We ......
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