The Same against Grove
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1846 |
| Date | 01 January 1846 |
| Court | Court of the Queen's Bench |
English Reports Citation: 116 E.R. 59
QUEENS BENCH
[152] sophia de medina against grove, weymouth and righy. the same against GROVE. 1846. No action lies against an execution creditor or his attorney for issuing a fi. fa. indorsed to levy the whole sum recovered by a judgment which, to the knowledge of both, has been partly satisfied by payments, unless malice and want of probable cause be alleged in the declaration, and proved. Money levied by a regular execution, under a judgment valid on the (6) Hughes v. Bucklmd, 15 M. & W. 346. (a) Reported by H. Davison, Esq. 60 DE MEDINA V. GROVE AND OTHERS 10 Q. B. 163. face of it, cannot be recovered back in an action for money had and received on the ground that judgment was signed, or execution issued, fraudulently, for the whole sum named in the judgment, when part had been already paid. The remedy, in case of such fraud, ia by motion to the Court in which the action was brought, to set aside the judgment or the execution. [Affirmed, 10 Q. B. 172; 17 L. J. Q. B. 321 ; 11 Jur. 145. Referred to, Churchill v. Siggers, 1854, 3 El. & Bl. 939.] In De Medina v. Grove and Others, the action was on the case. The first count alleged that, before the committing, &c., to wit on 3d October 1842, one Patrick Strachari recovered a judgment, in the Common Pleas, against plaintiff' for 10601. 10s., for breaches of certain covenants : that afterwards, and before the payment next after mentioned, all the right, title, &o. of Strachan in and to the said judgment, and the money due and payable by virtue thereof, and all the benefit, &c. thereof, by assign-tneut thereof theretofore made by Strachan, came to and vested in defendant Grove, who then, and from thence until and at the time of the committing, &o., became and was entitled to the said damages. That, before the time of committing, &c., divers large sums of money, amounting, to wit to 10001., had been paid to and received by Grove, by and on behalf of plaintiff, on account and in part satisfaction of the said damages; all which defendants Weymouth and Highy, at the time of the committing, &c., well knew. That, before and at the time of the committing, &c., the last mentioned defendants carried on the business of attorneys in copartnership, and, as such attorneys, they, acting for and on behalf of Grove, caused to be issued out of the [153] said Court, upon and for having satisfaction of said judgment, a certain writ, &c. (describing a ca. sa. against plaintiff, directed to the Sheriff of Middlesex), to satisfy Strachan the said sum of 10601. 10s., so, as aforesaid, recovered, with interest, &c. Yet defendants, well knowing the premises, but intending to injure, &c. the plaintiff, afterwards, to wit "on 8th March 1843, wrongfully and injuriously caused the said writ to be indorsed " with a direction to the sheriff to levy the whole of said sura of 10601. 10s., and interest as aforesaid, and then " wrongfully and injuriously caused " the said writ, so indorsed, to be delivered to the said sheriff to be executed ; and " wrongfully and injuriously caused " plaintiff to be, and plaintiff was afterwards, to wit on, &c., under and by virtue of the said writ, taken and imprisoned by the said sheriff for a long space of time, to wit one day, and until plaintiff executed and delivered, and plaintiff was, by force and duress of such imprisonment, afterwards, to wit on, &c., forced and obliged to, and did then, execute and deliver to defendants certain securities, to wit a certain warrant of attorney, &c., described in the count to be given on behalf of plaintiff' and one Henry Augustus de Medina, to confess judgment for 21641. and costs, at the suit of Grove, with a defeasance declaring it to be given to secure to Grove 10811. 14s. 2d., for which sum, with interest, costs, &c., Grove if he entered up judgment might sue out execution: and also a memorandum of agreement, whereby the plaintiff' and H. A. de M. agreed to, and did thereby, charge all and every their respective interests, &c., of and in certain leasehold messuages, &c., with the payment of the said 10811. 14s. 2d., and interest, &c., and whereby plaintiff and H. A. de M. did also agree to [154] execute a good and valid mortgage to Grove of the said leasehold messuages, &o., for securing the aforesaid sum and interest, &c. : whereas, in truth and in fact, there was not, either at the time of such indorsement, delivery or taking as aforesaid, or at the time of executing and delivering such warrant of attorney as aforesaid, due and owing, upon and by virtue of such judgment, the said sum of 10601. 10s.; but, on the contrary thereof, the amount due and owing at the respective times aforesaid, upon and by virtue of the said judgment, was much, to wit 5001., less than the said sum of 10601. 10s.: all which, &c.; averment of knowledge by defendants. 3d count. That Grove, before the committing, &c., had entered up judgment in the Queen's Bench against plaintiff and one H. A. de Medina, upon a warrant of attorney theretofore given and executed by plaintiff and H. A. de M., for securing to Grove payment of a certain sum, to wit 10811. 14s. 2d., and interest at 5 per cent. That, before the committing, &c., divers large sums of money, amounting to, &c., to wit 10801., had been paid by...
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Carolyn Gibbs v Lakeside Developments Ltd
...The claim for money had and received was not therefore inconsistent with the judgment of the inferior court. 16 In De Medina v Grove (1846) 10 QB 152, 116 ER 59, an action for money had and received was brought to recover sums paid in excess of a judgment debt in order to obtain the release......
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