R v Winstanley

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date01 January 1831
Date01 January 1831

English Reports Citation: 148 E.R. 1492

IN THE HOUSE OF LORDS, IN ERROR FROM THE EXCHEQUER CHAMBER.

Rex
and
Winstanley

in the house of lords. eex v. winstanley. Kevenue. 1831.-A sale by auction by assignees of a bankrupt, of the absolute interest in fee of an estate in mortgage, is not liable to auction duty. [In Error from the Exchequer Chamber.] Upon a scire facias upon an auctioneer's bond, the question raised by demurrer wa$, whether a sale by auction by the assignees of a bankrupt, of the absolute interest in fee of an estate belonging to the bankrupt, which was mortgaged, was liable to the auction duty. The Court of Exchequer, overruling the case of The King v. Abbott (3 Price, 178,), decided that auction duty was not payable (2 Y. & J. 124). Upon a writ of error, I a* J.438. BEX V. WINSTANLEY 1493 the Chief Justices differed in opinion, and the judgment was affirmed (3 Y. & J. 126). A. writ of error was afterwards brought in the House of Lords. The Judges were summoned, and the case was argued by the Attorney-General arid the Soliejtor-Qfeneral, [435] for the Crown, and by Sir . B. Sugden and M'Arthur, for the defendant. lord tbnteeden. My Lords, this case, which has been argued with very great learning and ability on both sides, cornea before your Lordships upon a decision of tie Court o Exchequer, having, in the intermediate stage, been before the Court of Ijxehequer Chamber. Upon the occasion when it was heard before the noble and learned Lord now present and myself, we thought it a case fit to be submittec| to tiie consideration of your Lordships, for it cannot be denied that the case flow before your Lordships does, in effect, overrule a solemn decision of the Court of Exchequer, in a, case very much the same upon principle, although distinguishable frbm it int some respects. Under such circumstances, I should humbly propose to y^iur Lordships, that certain questions should be put to the learned Judges whose assistance the House has had during the present argument, and that we should receive the benefit of their answers to those questions, before we come to any decision. The ease has been argued principally as a case of property, mortgaged by a trader, who became bankrupt, which property was ultimately put up to sale by his assignees, witk the concurrence of the mortgagor. The case is not, however, precisely of that character, because it appears that, after Mr. Clayton, who was the original owner of the estate, had conveyed his estates to different persons by way of mortgage, to secure different sums of money, the equity of redemption remaining in him, he conveyed the wide, that is, his equity of redemption in the whole, to certain trustees, with very lafge powers, and from those powers, I should judge that it was considered of more vafue than it really was; because, among other powers vested in the trustees, is a power of raising further sums, whether by mortgage or by sale of leases, [436] and so on;; the trust, ultimately, being to pay off whatever they should borrow, ;is well as the further incumbrances. The sale in question was a sale by order of the assignees, with the concurrence of those trustees. Now, for the purpose of deciding this case, I shall submit to your Lordships, that it will be proper to put two different questions to jbhe learned Judges, one of them applicable to the general principle upon which the question has been argued; and another, applicable to the especial facts that appear up&n the record in this case. The questions I should propose would be these: First, whether, if a trader, having mortgaged his land as security for payment of a debt, afterwards become bankrupt, and the whole interest in the land is sold by auction, by orcjeT of the assignees of the bankrupt, and with the concurrence of the mortgagee, duly on the sale is payable to his Majesty on the whole, or any or what part of the sum produced by the sale. Secondly, whether, if a trader, after such mortgage, cortveys the land to trustees in trust, to raise further sums, and to sell for the payment of former and new incumbrances, and the land is sold by auction by order pf the! assignees, Svith the concurrence of the trustees, it not appearing that any further suni was raiseq by...

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4 cases
  • Power v Power
    • Ireland
    • Court of Appeal in Chancery (Ireland)
    • 24 June 1858
    ...Harmood v. Oglander 8 Ves. 107. Lock v. FooteENR 5 Sim. 618. Casburne v. Inglis Lee's Rep., temp. Hardw. 401. The King v. WinstanleyENR 1 C. & J. 434. Sparrow v. Hardcastle 1 Lord Ken. 70. Rider v. WagerENR 2 P. Wms. 334. Luther v. KidbyENR 3 P. Wms. 169. n. Webb v. Temple Freem. Law Rep. (......
  • Speednet Communications Ltd Appellant v Public Utilities Commission Respondent
    • Caribbean Community
    • Caribbean Court of Justice (Appellate Jurisdiction)
    • 9 December 2016
    ...Hon Mme Justice M Rajnauth-Lee 1 CAP 223. 2 SI 2002/110. 3 CAP 229. 4 Record of Appeal, 335–359. 5 [1831] Eng R 202; (1831) 1 C & J 434; 148 ER 1492. 6 [1948] 1 All ER 7 Record of Appeal, 360–363. 8 Speednet Communications Limited v Public Utilities Commission (Court of Appeal of Belize, 19......
  • Speednet Communications Ltd v Public Utilities Commission
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    • Caribbean Court of Justice
    • 9 December 2016
    ...define ‘channel’ in the Schedule as it relates to Point-to-Point links and, citing R v. Winstanley [[1831] Eng R 202; (1831) 1 C & J 434; 148 ER 1492.] and Inland Revenue Commissioners v. Ross and Coulter and Others (Bladnoch Distillery Co Ltd) [[1948] 1 All ER 616.], submitted that the wor......
  • R v Sedgwick
    • United Kingdom
    • Exchequer
    • 1 January 1835
    ...part exempt from the auction duty was that which remained in the mortgagor ; but this Court, and the House of Lords on a writ of error (1 C. & J. 434 ; 5 Bligh. N. S. 130), decided that the whole of the estate was in the bankrupt, and consequently that it was altogether exempt from duty. Ba......

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