Gaunt v Taylor
| Jurisdiction | England & Wales |
| Judgment Date | 28 February 1843 |
| Date | 28 February 1843 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 170
HIGH COURT OF CHANCERY
See Staniar v. Evans, 1886, 34 Ch. D. 475. Followed, In re Griffith [1904], 1 Ch. 807.
[413] gaunt v. taylor. Feb. 24, 25, 28, 1843. [See Staniar v. Evans, 1886, 34 Ch. D. 475. Followed, In re Griffith [1904], 1 Ch. 807.] Administration of an estate, where a creditor had obtained judgment upon a plea of plene administravit by two of the executors, and a confession of assets to a certain amount by another executor-such assets consisting of money in the hands of bankers not reached by the execution-which the two executors prevented from being paid upon the cheque of the third executor to the judgment creditor, and which was afterwards paid into Court. An executor, who, in an action at law by a creditor of the testator, has pleaded according to the truth of the case, is, when the assets are taken from him, and administered in equity, entitled to the protection of the Court against any personal liability in respect of such plea. Notwithstanding an order on further directions in a creditor's suit that the costs of all parties should be taxed as between solicitor and client, and paid out of a fund in Court-the fund proving insufficient to pay all the costs-the Court ordered the costs of the executors to be paid in the first place. Interest on debts by judgment recovered against the executor. J. Taylor, the testator, married Hannah, the widow of R. Stringer, and borrowed of Waterhouse, Holt and Cooper, the executors of Stringer, the sum of 1200. Taylor, who was not a trader, died in January 1830, indebted in that sum, and also indebted to other persons; and entitled to some real estate, subjected by his will to the payment of his debts, and to other real estate which did not pass by his will. He appointed Hannah, his widow, Tottie and Shaw his executrix and executors. In June 1830 Waterhouse, Holt and Cooper brought their action in the Common Pleas against the executrix and executors of Taylor, for recovery of the 1200 and interest; to which the executrix and executors of Taylor pleaded plene administravit. In the same month of June the Plaintiff in this suit, a creditor of the testator, Taylor, filed his bill on behalf of himself and the other unsatisfied creditors for the administration of the estate. Hannah Taylor, the executrix, withdrew her plea of plene administravit to the action by the executors of Stringer,(l) and instead thereof pleaded plene administravit prceter the sum of 383, 6s. 7d. (part .of the testator's assets, which the executrix and executors had received and deposited in their joint names in the bank of Messrs. Brown & Co. at Leeds), and [414] goods and chattels of the value of 481, 13s. 6d. (being the furniture and effects in the testator's house), making together 865, Os. Id. Waterhouse, Holt and Cooper then entered a nolleprosequi on the plea of the executors, Tottie and Shaw, with payment of assets in future as against them; and an interlocutory judgment was signed against Hannah Taylor, the executrix, for the assets confessed, with an award of a writ of inquiry to assess the damages. The issued out of the High Court of Chancery, or by the serjeant-at-arms attending the same Court, and also be liable to have your estate sequestered for the purpose of compelling you to obey the same order [or, decree]." See. Beavan's Ord. Can. p. 167. (1) The executrix also severed in her defence in this suit, having a different interest from her co-executors; and it was held to be a case in which two sets of costs should be allowed. See Gaunt v. Taylor, 2 Beav. 346. 2HAEE.M.5. GAUNT V. TAYLOR 171 writ of inquiry was executed on the 2d of November 1830, and the damages (the debt and interest) were assessed at ,1249, with 31, 13s. costs, and final judgment was signed on the llth of November, upon which execution issued to levy 865, Os. Id., part of the said damages and costs of the goods and chattels of the testator, acknowledged by Hannah Taylor to be in her hands. Under this execution the sheriff seised arid sold the furniture and effects, and paid the sum produced by the sale, amounting, after deducting the expenses, to 400, 9s. 5d., to Waterhouse, Holt and Cooper, in part satisfaction of the judgment. Waterhouse, Holt and Cooper applied to Hannah Taylor for payment of the 383, 6s. 7d., and she gave them a cheque on Messrs. Brown & Co., dated the 15th of November 1830, for 380. The bankers, however, refused payment, alleging that they had received notice from Shaw, one of the executors, not to part with the money. Under an order of the 8th of February the 383, 6s. 7d. was paid into Court in the cause. The decree was made in June 1831, and the usual accounts were directed. The Master, in taking the account of the debt due to the executors of Stringer, allowed interest on the principal sum of 1200 from the time of assessment of damages until the time of the levy under the execution, and on the balance of such principal sum, after deducting the sum levied, from the time of the levy to the date of his report. Exceptions to the report in respect of such al-[415]-lowance of interest were taken and allowed ;(1) and the amount reported to be due was reduced to 880, 3s. 7d. In December 1840, by an order made on further directions, and on the petition of Waterhouse and Cooper (Holt being dead), it was ordered that, there being a deficient fund for the payment of the creditors of the testator in full, the Master should tax the costs of the Plaintiff as between solicitor and client, and any costs, charges and expenses he had incurred, not being costs in the cause-and tax the costs of the Defendant, James Taylor, the heir at law-and tax the costs of the Defendant, Hannah Taylor, as between solicitor and client, and her costs, charges and expenses, not being costs in the cause-and tax the costs of the Defendants, Tottie and Shaw, as between solicitor and client, and their costs, charges and expenses, not being costs in the cause. And, without prejudice to any question as to the ultimate appropriation thereof, an inquiry was directed of how much of 2732, 6s. lid. consols, standing to the credit of the cause, was purchased with the 383, 6s. 7d. paid into Court by the executrix and executors, and what interest had arisen therefrom; and so much of the fund as was so purchased and accumulated was ordered to be carried over to a "special account;" and an inquiry was also directed of how much of the 2732, 6s. lid. consols arose from legal assets of the testator, and so much as should be found to have so arisen was ordered to be carried over to the same " special account." And the residue of the consols was ordered to be applied in payment of the costs, and costs, charges and expenses before ordered [416] to be taxed. And it was ordered that a case should be sent to the Common Pleas for the opinion of the Judges of that Court on the following questions : first, whether it was necessary to docket the judgment recovered by E. Holt, W. Waterhouse and W. Cooper against the Defendants, Hannah Taylor, T. W. Tottie and J. H. Shaw, as executors of J. Taylor, deceased, in order to give preference against the executors in the administration of the testator's estate, in pursuance of the 4th and 5th W. & M. cap. 20; and if the Judges of the said Court should be of opinion that it was necessary to docket such judgment, then, secondly, whether such judgment was duly docketed. In Michaelmas term 1841 the Judges of the Common Pleas certified that it was not necessary the judgment should have been docketed to give priority to the judgment creditor.(2) The Master, by his separate report in April 1842, found that a part of the fund, (1) See the report of Gaunt v. Taylor, 3 Myl. & K. 302, on the question of the right of the creditors in the Master's office to interest on the debt in respect of which bhey had recovered at law principal and interest. (2) See the report of the argument before, and certificate of the Judges of the Common Pleas-Gaunt v. Taylor, 3 Scott, New E. 700, 712. And with reference to bhe same point, see 2 & 3 Viet. c. 11, s. 1; 1 & 2 Viet. c. 110, s. 19; 2 Wms. Executors, 804, ed. 3. 172 GAUNT V. TAYLOR 2 HAKE, 417. consisting of 497, 12s. 8d. consols, and 156, 14s. 3d. interest thereon, was produced by the 383, 6s. 7d.; and that 1312, 15s. 2d. consols arose from legal assets of the testator. And, by his general report in July following, he certified that he had taxed the costs, charges and expenses of the Plaintiff at the sum of 1367, 11s. 6d., of J. Taylor, the heir at law, at 127, 6s. 9d., of the executrix, Hannah. Taylor (deducting sums due from her), at 971, 13s. 6d., of the executors, Tottie and Shaw, at 552, 13s. 9d.; making in the whole 2997, 16s. 8d. [417] Feb. 24. At the time the cause came on for further directions 1597, 2s. 2d. consols, and 45, 12s. lOd. cash, were standing to the "special account," and 1497, 13s. 3d. consols, and 111, Is. Id. cash, to the credit of the cause generally. Cooper, who'had survived Waterhouse and Holt, the other executors of Stringer, by his petition, prayed that the fund produced by the 383, 6s. 7d, might be paid to him, in satisfaction of the judgment recovered against Hannah Taylor, upon her confession as to that sum. Mr. Anderdon and Mr. E. Montagu, for -the Plaintiff, contended that he was entitled to be paid his costs out of the entire fund before specialty creditors, whether of the testator or of the executors; LarMns v. Paxton (2 Myl. & K. 320), Barker v. Wardle (Id. 818); and that this right was not affected by the proceedings which had taken place at law. The creditors, who had obtained judgment, had received all that .the execution could give them ; and the Court did not aid them further. If they had acquired any right personally against the executrix, in consequence of the form of her plea at law, that was a circumstance with which the Court would not interfere ; Kent v. Pickering (5 Sim...
To continue reading
Request your trial
-
Ramsay v Simpson
...— Practice. Batten v. The Wedgewood Coal and Iron Co.ELR 28 Ch. D. 317. Fitzgerald v. Fitzgerald 5 Ir. Eq. R.525. Gaunt v. TaylorENR 2 Hare, 413. In Blenkinsop v.Foster 3Y. & C. (Ex.) 205. Le Grand v.WhiteheadENR 1 Russ. 309. Lyne v. Lyne 8DeG. Mac N. & G. 553. Swalw v. MilnerENR 6 Sim. 572......
-
Moore v McGlynn
...m. r. d. m. (1) 7 DeG. M. & G. 214. (2) 35 Beav. 449. (3) 15 Ch. D. 548. (1) [1891] A. C. 190. (2) 25 Ch. D. 710. (3) [1904] W. N. 88. (4) 2 Hare, 413. (5) 23 L. R. Ir. (1) 7 DeG. M. & G. 214. (2) 25 Ch. D. 710. (1) 5 Russ. 29, at p. 31. ...
-
Sanderson v Stoddart
...divided amongst the creditors. Mr. Selwyn, for the executor, claimed to have his costs in priority of all other claims ; Gaunt v. Taylor (2 Hare, 413). Mr. Ince, in reply, insisted that the executor had disentitled himself to priority by voluntarily confessing judgments which had swept away......
-
Table of cases
...[1919] 3 W.W.R. 185, [1919] A.J. No. 54 (S.C.) ............................................ 293 Gaunt v. Taylor (1843), 2 Hare 413, 67 E.R. 170 ................................................ 291 GE Capital Canada Retailer Financial Services Co. v. Nova Scotia (2000), 182 N.S.R. (2d) 165, ......