Lee v Park
| Jurisdiction | England & Wales |
| Judgment Date | 24 December 1836 |
| Date | 24 December 1836 |
| Court | High Court of Chancery |
English Reports Citation: 48 E.R. 482
ROLLS COURT.
S. C. 6 L. J. Ch. (N. S.), 93. See In re Womersley, 1885, 29 Ch. D. 559.
[714] lee v. park. Dec. 21, 22, 24, 1830. 1 c-A . 3 * 'ò [S. C. 6 L. J. Ch. (N. S.), 93. See In re Womersley, 1885, 29 Ch. D. 559.] Motion to restrain a creditor, after a decree, from issuing execution on a judgment obtained before the decree de bonis Ustatoris, et, si non, de bonis propriis aa to costs, refused utider the circumstances. 1KEEN71B. LEE V. PARK 483 Principles upon which the Court acts in restraining proceedings at law, after a decree, with reference to the priority of the decree or judgment at law, and other circumstances. This was a motion, on behalf of the Defendants, Godfrey Park and James Iveson, executors of the will of Richard Bigham, deceased, for an injunction to restrain the Rev. William Gilby and Henry John Shepherd, executors of the will of John Lock-wood, deceased, from issuing execution upon a judgment, obtained by them at law on the 8th of August 1835 on a bond, dated the 6th of April 1824, and given by Richard Bigham, the testator in the cause, to John Lockwood, and Robert Sandwith, deceased. The bond was conditioned to secure the repayment of the sum of £1800 advanced by Lockwood and Sandwith, the trustees under a marriage settlement, to Richard Bigham, with interest at 4 per cent. Richard Bigham died shortly after the execution òof the bond, without having paid the debt thereby secured, and having by his will, dated the 26th of January 1825, appointed Godfrey Park arid James Iveson his executors. [715] John Lockwood survived his co-trustee Sandwith, and died on the 9th of May 1827, having made a will by which he appointed William Gilby and Henry John Shepherd his executors. The executors of Lockwood, being unable to obtain payment of the bond debt and interest, brought an action in the Court of Exchequer of Pleas, on the 19th of June 1835, against Park and Iveson, the representatives of Richard Bigham, to recover the sum of £2606, 11s. lid., being the amount of the principal and interest due upon the bond at that time. The Defendants at law at first pleaded nan est fadwm, but, being advised that they had no defence to the action, they withdrew that plea, and suffered judgment to go by default. The costs were taxed by the Master at £20, 9s., and judgment was entered up, on the 5th of August 1835, for the amount of the debt and costs to be levied tie lends textataris, et, si nan, de bonis propriis as to the costs. On the 5th of December 1835 the Plaintiff's at law issued a writ at fieri facias de bonis testatorii on the judgment indorsed by the sum of £2027, Os. lid., but the writ remained unexecuted, there being no goods of the testator. On the 10th of July 1832 John Lee and Eleanor his wife, and Cicely Robinson, claiming as legatees under the will of Richard Bigham, filed their bill against Park and Iveson, the executors of that will, and other parties, praying for the usual amounts of the testator's personal estate, and for the application of the same in a due course of administration. By the answer of all the Defendants to the bill, the Defendants Park and Iveson stated their belief, that they had possessed themselves of the personal estate and effects of the testator sufficient to pay all his debts, [716] funeral and testamentary expenses, but not his legacies charged ou his personal estate. They admitted that they had entered into possession of the testator's real estates, and receipt of the rents, and that the rental of the real estates was £350 per annum. The Defendant Iveson admitted that he was a solicitor, and that he had received all the rents of the real estate; but he denied that either of the executors had then or at any time any balances in their hands of the testator's personal estate, or of the rents of the real estate, except such small sums as might from time to time have remained in their hands until the application thereof, but the amount of which the Defendants were unable to set forth. By their further answer, the Defendants Park and Iveson said that Park had received the greater part of the personal estate, and had made the...
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