Weeks v Ward
| Jurisdiction | England & Wales |
| Judgment Date | 21 March 1862 |
| Date | 21 March 1862 |
| Court | High Court of Chancery |
English Reports Citation: 54 E.R. 1037
ROLLS COURT
See In re Dangar's Trusts, 1889, 41 Ch. D. 192.
The Authorized Reports of CASES in CHANCERY ARGUED and DETERMINED in the ROLLS COURT during the time of the Right Honorable Sir JOHN ROMILLY, Knight, Master of the Rolls. 1862. By CHARLES BEAVAN, Esqr., M.A., Barrister-at-Law. Vol. XXXI. 1863. [1] simmons) v. rose. weeks v. ward. Re R. A. ward. March 21, 1862. [See In re Hangar'.-; Trust*, 1889, 41 Ch. D. 192.] A receiver was appointed by the Court, upon the representation of the Plaintiffs solicitor that the receiver had entered into the usual recognizances, which he had not in fact done. A loss occurred, in consequence of the receiver's liability being only in the nature of a simple contract debt. The solicitor was, at the instance of a Defendant, made personally liable for the loss occasioned by his neglect. Held, also, that the country solicitor was liable, though the representations were made by hia London agents. The first-mentioned suit of tiimnwmt v. Ease was instituted for the administration of real and personal estate of Lewis Rose, and by the decree, made in 1853, the usual accounts were directed, and it was ordered that a receiver should be appointed of his real and personal estate. In 1854 the Plaintiffs, who had the conduct of the suit, took out a summons for the appointment of a receiver. On the attendance before the Judge in Chambers on [2] this summons, the Plaintiffs proposed Alfred Lovegrove as such receiver, and he was approved of by the Judge in Chambers to be such receiver, he finding security in the sum of 10,000. On the 27th of April 1854 the Plaintiffs book out a summons in the first cause returnable on the 2d day of May 1854, in which summons the nature of the application to b& made was stated in the words following :-"That Alfred Lovegrove be appointed receiver of the real and personal estate of Lewis Rose, the testator, he having entered into the usual recognizances." By an order dated the 2d of May 1854, made by the Master of the Rolls in Chambers upon the summons, after reciting the decree directing a receiver, and that Alfred Lovegrove had been approved of by the Judge as a proper person for that purpose, and that Alfred Lovegrove had given security, pursuant to the General Order of this Court, and had entered into a recognizance, together with Samuel Nicholls and seven others (naming them), as his sureties, dated the 5th of April 1854, which had been approved of by the Judge and duly inrolled, it was then ordered that Alfred Lovegrove should be appointed receiver of the rents and profits and to get in the outstanding personal estate. Lovegrove died in September 1856. Mr. Weeks and Mr. Ward, his executors, had in 1859 submitted, in the first suit, to account for what they had received of Love-grove's estate as if a bill had been filed against them. "1037 1038 simmons v. rose; in re ward In 1860 the suit of Weeks v. Ward was instituted for the administration of Lovegrove'a real and personal estate. [3] In passing Lovegrove's accounts as receiver in Simmons v. Rose, a balance of 3996 was found due from his estate, and it was then discovered that his recognizances were wholly irregular, for Lovegrove had never signed, acknowledged or entered into the recognizances referred to, and by such recognizances his eight sureties, instead of becoming bound for 10,000, did merely "acknowledge themselves and each of them did acknowledge himself to owe," &c., "the sum of 1250." The effect of this was that Lovegrove was not liable under the recognizance, and his eight sureties were jointly and severally liable for one single sum of 1250 and no more. In consequence of this irregularity, the balance found due from Lovegrove constituted a mere simple contract debt, instead of being a debt of record, payable out of his assets in priority to simple contract debts; besides this, it enables his executor Mr. Ward to retain a simple contract debt due to him from the testator. In addition to this, the sureties were only liable to the extent of 1250. Under these circumstances, a petition was now presented by Rose, who was a Defendant in the first suit, against Mr. Ward (a country solicitor) who had acted for the Plaintiffs and for the receiver in Fiimmons v. Roue through his London agents Messrs. Child & Kelly, stating the circumstances relative to the recognizances, and that the omission of Lovegrove to enter into a recognizance was quite contrary to the settled practice and had not been...
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