The King v Winstanley
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1829 |
| Date | 01 January 1829 |
| Court | Exchequer |
English Reports Citation: 148 E.R. 1120
IN THE EXCHEQUER CHAMBER.
Affirmed in House of Lords, 1 C. & J. 434.
in the exchequer chamber. coram lord tenter.den, C. J., and best, C. J. (In Error from the Court of Exchequer.) te king y. winstanley. 1829.-Quaere, whether a sale by auction by the ' assignee^ of the absolute interest, in fee of an estate of the bankrupt in mort-' gagQi is or is not liable to the auction duty. [Affirmed in House of Lords, 1 C. & J. 434.] This was a scire facias upon an auctioneer's bond, conditioned to render an exact account of the money bid at each sale by auction, and of the lots sold, and to pay the auction-duty in respect thereof, according to the true intent and meaning of the acts of Parliament in that behalf. The question raised by the pleadings was, whether a sale by auction by assignees of a bankrupt of the absolute interest in fee, of an estate belonging to the bankrupt in mortgage, is or is not subject to auction-duty. On a former argument, the Court of Exchequer had decided that a sale so circumstanced was not liable to the duty (2 Y. & J. 124), upon which a writ of error was brought, an|J the case was now argued by- The Solicitor-General for the Crown, who, in addition to the arguments urged upon 3Y. 6J.127. THE KING V. WINSTANLEY 1121 the former occasion, contended that the question depended, not upon the construction of the late bankrupt act, 6 Geo. 4, c. 1C, s. 98, but upon that of the statute 19 Geo. 3, c. 56, s. 15, the former [127] act containing no repealing words, but being in effect the same as the Litter, with the omission only of the order of the assignees, which omission was immaterial, as no sale could take place except by their order. He insisted that the latter act of Parliament, although its primary object was for the benefit of creditors, applied to sales in itivitum merely; the first branch applying to a sale under an execution, and the second to a sale by order of assignees, in neither of which the proprietor of the estate had any participation ; and, therefore, that the exception was inapplicable to a sale of the interest of the mortgagee, which could only be with his concurrence. He further submitted that the inapplicability of the exception to the present case was manifested by the sixteenth section, which, in the case of sales of bankrupts' property, required certain things to be done by the assignees, which could not be where the interest of third parties was disposed of. And he relied upon the authorities of Conn v. Creed ('2 Esp. (i99), and Rex v. Alibatt (3 Price, 178), as decisive of the question. Patterson, contra, recapitulated the argument upon which he relied in the Court below. The learned Chief Justices differed in opinion ; and, in consequence, upon the advice of Lord Tenterden, the Lord Chancellor affirmed the judgment of the Court of Exchequer, in order that the question might ultimately be disposed of by the highest tribunal of the country. Judgment affirmed.(c) (c) A writ of error is now pending in the House of Lords. Upon the cases of Goare v. (/reed, and Rex v. Abbott, the following observations are made by a very learned author: " By an order of Lord TJosslyn, Bro. C. C. (at the end) it ia directed that, upon application by mortgagee of a bankrupt's estate, the mortgaged estate [128] shall be sold before the commissioners, or by public unction, if they shall think tit. And it has been decided (Uonre v. (freed, 2 Esp. 699). that a sale of a mortgaged estate by auction under this order, is liable to the auction-duty, and is not within the exception, in the acts, of sales of bankrupts' estates by order of the assignees. The decision was made at Nisi Prius, and perhaps cannot be supported. The legislature intended that the creditors of bankrupts should have the advantage of selling the estates by auction without being charged with auction-duty. Now, this intention is, in the case under consideration, clearly subverted by the decision in Coare v. Creed. The argument was, that the sale was by the mortgagee, and so not part of the bankrupt's estate. But, if the money produced by the sale of the pledge is insufficient to cover the mortgagee's debt, he, of course, resorts to the general effect for a dividend on the residue. If the pledge produce more, the surplus sinks into the general fund ; so that, assuming, as the legislature clearly did, that the auction-duty is in substance a charge on the land, it in this case takes so much from the bankrupt's property, distributable for the benefit of his creditors. It was considered to be clear, however...
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