Rundell v Lord Rivers
| Jurisdiction | England & Wales |
| Judgment Date | 06 December 1841 |
| Date | 06 December 1841 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 564
HIGH COURT OF CHANCERY
S. C. 11 L. J. Ch. 27; 6 Jur. 89.
rundell v. lord riverk. Nov. 22, Dec. 6, 1841. [S. C. 11 L. J. Ch. 27; 6 Jur. 89.] Practice in the Master's oftice in the proof of bond debts under a decree in a creditor's suit. This was a creditor's suit, in which a question arose, upon exceptions to the Master's report, as to the proper form of the affidavit to be made by a bond creditor in proving his debt under the decree. The estate under administration being insolvent the claim in question had been opposed before the Master on a suggestion that the consideration for which the bond had been given was illegal; and some evidence had been adduced in support of that suggestion. The Master, however, had allowed the claim, upon proof of the due execution of the bond, and an affidavit, by the obligee, simply stating that such and such a sum was due upon it for principal and interest. The ground of one of the exceptions was, that that affidavit was insufficient in not further stating whether any and what consideration had been given for the bond. And in support of the exception it was argued that the form of the affidavit which X PH. l. HERRING V. CLOBEHY 565 the Master had admitted was applicable only to cases in which the debt was not disputed on behalf of other creditors; Fladmg v. #/m-[89]- r (19 Ves. 196); and that where it was so disputed the form of the affidavit ought to be the same as in bankruptcy, where the party tendering a proof was in all cases required to state the consideration upon which his debt had arisen, whether it was founded upon a specialty or upon simple contract. (See Archbold's B. L. B. ii. p. 40.) On the other hand, it was insisted that whatever might be the form of the affidavit required in bankruptcy, the affidavit in question was framed in conformity with the ordinary practice in the Master's office; and that, to justify a departure from that practice, it was not enough that the debt was disputed, but it must appear to be disputed upon substantial grounds which, in the opinion of the Master, was not the case here. the lord chancbllob, before giving judgment, sent the following question to the Masters respecting the practice in their offices : " Whether, in the administration of assets where a charge is brought in for a bond debt, it is the practice in the Master's office to require that the affidavit of debt should state the consideration for which the...
To continue reading
Request your trial
-
Whitaker v Wright
...245-6. V.-C. xii.-5 130 whitaker v. wright 2 hake, sis. Mr. Romilly and Mr. Follett, for the Plaintiffs, cited Ewndell v. Lord Rivers (1 Phillips, 88), Hill v. Montagu (2 Mau. & Sel. 377), Nichols v. Lee (3 Anstr. 940). . Mr. Temple and Mr. Elmsley, for the representatives of the obligor, m......