Evelyn v Lewis
| Jurisdiction | England & Wales |
| Judgment Date | 08 June 1844 |
| Date | 08 June 1844 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 467
HIGH COURT OF CHANCERY
[472] evelyn v. lewis. (1) June 8, 1844. In suits by creditors and legatees a receiver was appointed of the rents and profits of real estate, part of which was copyhold. The death of the last tenant having been duly presented at the court baron of the manor, proclamations were made for the next tenant to come in and be admitted, and, no person appearing, the bailiff of the manor was ordered to seize the lands guousgue. Declaration in ejectment at the suit of the lord was afterwards served on the terre-tenant; but, on the motion of the receiver, the lord was restrained by injunction from prosecuting the action. A receiver of the rents and profits of the real estates of Lynden Evelyn, deceased, was appointed by an order dated the 23d of August 1839, made on these (creditors' and legatees') causes (see p. 320, ante), and the tenants were ordered to attorn and pay their rents in arrear, and growing rents, to such receiver, who was to be at liberty, with the approbation of the Master, to manage, set and let the said estates as there should be occasion. Part of the estates consisted of certain copyhold lands of the manor of Pembridge Foreign, in the county of Hereford, which had been purchased by Lynden Evelyn, and the legal estate in which had been surrendered by a mortgagee to the use of Frederick Evelyn, his heirs and assigns, according to the custom of the manor, in trust for Lynden Evelyn. Frederick Evelyn died in May 1837. Lynden Evelyn died in April 1839. Elizabeth Plunkett, a Defendant in two of the causes, was the heiress at law and according to the custom; and Francis Evelyn, a Plaintiff in two of the causes, and Defendant in the other, was the devisee of the real estate, and residuary legatee under the will of Lynden Evelyn. The will had not been established in this Court. No person appeared to claim admittance to the copyhold premises after the death of Frederick Evelyn. At a court baron of the manor, held in February 1844, the homage presented the death of Frederick Evelyn, the last tenant; and at that and two subsequent courts baron, in April following, first, second and third proclamations were made for persons claiming title to the premises to [473] come in and be admitted. Notices of the proclamations were served upon the receiver and the solicitor for the Plaintiffs and Defendants in these causes. No person applied for admittance, and a precept was, at the third court, issued to the bailiff of the manor to seize the lands guousque. (See 1 Scriven on Copyholds, p. 353, ed. 3.) On the 20th of May declaration in ejectment, in Her Majesty's Court of Exchequer, at the suit of the lord of the manor, was served upon the terre-tenant. (Id. 356.) It did not appear that either the lord or the steward of the manor, had been served with a copy of the order appointing the receiver. Mr. Eomilly and Mr. Calvert moved, on behalf of the receiver, for an injunction (1) Nom. Plunkett y. Lewis, Keg. Lib. - , 468 EVELYN -Vi LEWIS 3 HARE, 474. to restrain the lord from proceeding with the action, or commencing any other action for the like purpose, and that he might be ordered to pay the costs of the application : 'Dixon v. Smith (1 Swans. 457), Angel v. Smith (9 Ves. 335), Johnes v. Claughton (Jac. 573), Brooks v. Greathed (1 J. & W. 176). In Wadmore v. Trevanion (not reported) a receiver had been appointed over the interest of the lessee in a leasehold estate, and the Court restrained the lessor from proceeding to recover on a forfeiture in respect of breaches of covenant, without having previously applied to this Court for leave. Mr. Cooper and Mr. Bolt, for the lord of the manor. The lord does not, in this case, seek to interfere with the property over which the right of the receiver extends : the receiver is not appointed receiver of the seigniory ; he is receiver over that which belongs to the [474] copyholder, not of that which belongs to the lord. In appointing a receiver of the property of a suitor the Court does not interfere with the right of third persons. It will, no doubt, protect its officer from disturbance by parties for the first time setting up adverse claims. This is illustrated by the case of a right of common. Lord Eldon says, " If, when a receiver is appointed, a commoner is in the exercise of his right of common, the appointment does not interfere with it:" Johnes v. Claughton. The receiver is bound to attend to the rights of others, and may apply for the direction of the Court where he has any difficulty; but the legal rights of all other persons in an estate are not extinguished by the fact of a receiver being appointed of the property of one who has a qualified interest in that estate. The lord is not bound to notice any suits which may be in progress amongst his tenants or persons claiming the copyhold tenements, unless they are suits in...
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