Tatham v Parker
| Jurisdiction | England & Wales |
| Judgment Date | 13 July 1853 |
| Date | 13 July 1853 |
| Court | High Court of Chancery |
English Reports Citation: 65 E.R. 221
HIGH COURT OF CHANCERY
S. C. 22 L. J. Ch. 903; 17 Jur. 929; 1 W. R. 491. See In re Hoare [1892], 3 Ch. 98.
[506] tatham v. parker. July 4, 13, 1853. [S. C. 22 L. J. Ch. 903 ; 17 Jur. 929 ; 1 W. E. 491. See In re Hoare [1892], 3 Ch. 98.] The discharge under the Insolvent Debtors Act of one whose estate was in possession of sequestrators, for breach of an order for non-payment of money, does not entitle the assignee in insolvency to discharge the sequestration, although it discharges the-person of the insolvent. The writ of sequestration is in rem, and not in personam. Eents in the hands of sequestrators ordered to be paid to mortgagees who had been prevented by the sequestration from taking possession, and whose title was found under examination pro interesse suo. This was the petition of the assignee of an insolvent debtor, a Defendant in this-suit, against whom an order duly registered had been obtained for payment of a sum of money, for non-payment of which he had been committed for contempt. The petition asked that a sequestration, under which sequestrators were in possession of the real and personal estate of the insolvent, might be discharged. The question was whether the sequestration was discharged by the discharge-under the insolvency., By an order made in this cause, dated the 16th of March 1849, the Defendant, Joseph Parker, was ordered to pay into Court the several sums of £1500, £1000 and £1200. The Defendant having disobeyed this order, an attach- 222 TATHAM V. PARKER l SM. & GIFF. 507. ment was issued against him for the contempt; and he was arrested and committed to prison on the 29th of August 1849. Under an order, dated the 19th of December, the usual writ of sequestration, dated the 22d of December 1849, was issued, directed to certain sequestrators, whereby they were authorised to enter upon the real estate of the Defendant, and to receive and sequester into their hands the rents and profits of his said real estate and his personal estate, and to detain the same under sequestration until the Defendant should pay the several sums he was, by the order of the 14th of March 1849, ordered to pay. The sequestrators entered into the receipt of the rents of the Defendant's real estates, and into the possession of parts of his personal estate. The order of the Court of the 14th of March 1849 was registered in May 1850, as a judgment, in the Court of Common Pleas, under the provisions of the 1 & 2 Viet, c. 110. [507] The Defendant, Parker, being in custody under the attachment, presented his petition for discharge to the Court for the Belief of Insolvent Debtors on the 27th of May 1850. The sums of £1500, £1000 and £1200, for non-payment of which he was in custody, were duly entered in his schedule of debts ; he was discharged according to the provisions of the Act for the Belief of Insolvent Debtors on the 20th of August 1850. Mr. Bichard Griffin, the Petitioner, was duly appointed assignee of the estate and effects of the insolvent. The sequestrators continued in the receipt of the rents and profits of the real òestates of the Defendant, and also in the possession of the personal estate after the insolvency and discharge of Joseph Parker. Mr. Griffin, the assignee, by this petition, after stating the above circumstances, prayed that the writ of sequestration might be discharged, and that the sequestrators might deliver up to the Petitioner, as the insolvent's assignee, possession of the real and personal estate and property of the insolvent; and that they might account for and pay over to him all rents and profits, and all other monies possessed or received by them as such sequestrators. Mr. J. V. Prior, in support of the petition. The Petitioner is entitled to have the sequestration removed. This is the effect of the discharge of the Defendant, Parker, from custody under the provisions of the Act for abolishing arrest on mesne process, the 1 & 2 Viet. c. 110, particularly sects. 79, 90 and 91.(1) The 79th section (1) By 1 & 2 Viet. c. 110, it is provided :- By sect. 79, " That the discharge of any prisoner so adjudicated as aforesaid shall .and may extend to all process issuing from any Court, for any contempt of any Court, ecclesiastical or civil, for non-payment of money or of costs or expenses in .any Court, ecclesiastical or civil; and that in such case the said discharge shall be deemed to extend also to all costs which such prisoner would be liable to pay in consequence or by reason of such contempt, or on purging the same; and that every discharge so adjudicated as aforesaid, as to any debt or damages of ^,ny creditor of such prisoner, shall be deemed to extend also to all costs incurred by such creditor before the filing of such prisoner's schedule, in any action or suit brought by such creditor against such prisoner for the recovery of the same; and that all persons as to whose demands for any such costs, money or expenses as aforesaid any such persons shall be so adjudged to be discharged shall be òdeemed and...
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