Woodgate v Field
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1842 |
| Date | 01 January 1842 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 88
HIGH COURT OF CHANCERY
[211] woodgate v. field. July 4, 7, Nov. 10, 21, 23, 1842. In a suit by a creditor on behalf of himself and all other creditors, if the debt of the Plaintiff be admitted or proved, and the executor or administrator admits assets, the Plaintiff is entitled at the hearing to an immediate decree for payment, and not to a mere decree for an account. A mistake of the law or practice of the Court is not, per se, a ground for allowing a party to go into further evidence, on facts at issue at the hearing of the cause, semble. The Plaintiff, claiming to be a creditor of the intestate, on a promissory note, filed his bill on behalf of himself and all other creditors against the administrator for payment. The Defendant, by his answer, admitted assets, but denied the debt, and suggested that the pretended promissory note was a forgery. The Plaintiff went into evidence, and proved the note. At the hearing, Mr. Teed and Mr. Bagshawe, for the Plaintiff, asked for the immediate decree of the Court against the Defendant for payment of the debt. Wall v. Bushby (1 Bro. C. C. 488, per Lord Thurlow). Mr. Girdlestone and Mr. Allfrey, for the Defendant. 2 HAKE, 212. WOODGATE V. FIELD 89 The decree must be for an account in the usual way. The admission of the executors does not entitle the Plaintiff to a personal decree, without giving the other creditors an opportunity of contesting the claim. Owens v. Dickenson (Cr. & Ph. 48). The practice uniformly is to direct the account only in the first instance. Seton on Decrees, [212] p. 52; Attorney-General v. Cornthwaite (2 Cox, 45); Gray v. Chiswell (9 Ves. 123); 2 Dan. Chan. Pr. 854. Not only have the other creditors of the intestate an interest which may be opposed to the Plaintiff, but they have an inchoate interest in the prosecution of the suit, and, if it be not dismissed, they have an interest in requiring that it shall be prosecuted in such a manner as will give them the benefit of it. Sterndale v. HanJcinson (1 Sim. 398); Connop v. Hayward (1 Y. & C. C. C. 33). An immediate decree would operate as a surprise on the Defendant, who had expected that he should be able to contest the debt before the Master. Tomlin v. Tomlin (ante, vol. 1, p. 236). Mr. Teed, in reply. Other creditors have no interest in the suit: the Plaintiff might dismiss his bill at any time before decree; and the Defendant might also have paid the debt and costs, and procured the bill to be dismissed before the hearing. Pemberton v. Topham (1 Beav. 316); Holden v. Kynastm (2 Beav. 204). the vice-chancellor [Sir James Wigram]. The suit is instituted by a simple contract creditor on behalf oi himself and all other creditors, seeking the payment of a debt alleged to be secured by the promissory note of the intestate. The Defendant, by his answer, says he believes the note to be a forgery, and that no debt was due to the Plaintiff, but admits assets sufficient to pay the amount, and all other debts of the intestate. He suggests no ground for his belief as to [213] the debt and note. Evidence has been gone into on the part of the Plaintiff to prove the debt, and he asks an immediate decree for payment. The Defendant says it ought to be referred to the Master to take the account, not only of the estate, but of what other debts are owing from the testator. This inquiry is said to have two objects: one that the Plaintiff's debt may be proved in the Master's office; the other that the rest of the creditors may have an opportunity of getting their debts paid in the suit. In a creditors' suit, where there is no admission of assets, that is no doubt the usual form of the decree, and though the Plaintiff may have proved his debt at the hearing, it may still be displaced by evidence in the Master's office; but the question is whether that form of decree is applicable when assets are admitted 1 The reason for, and the principle of, the usual form of decree, are stated in Owens v. Dickenson (Cr. & Ph. 48), but that reasoning has no application where assets are admitted, for the executor thereby makes himself liable to the payment of the debt. In such a case the other creditors cannot be prejudiced by a decree for payment of the Plaintiff's debt; and the object of the special form of the decree in a creditors' suit fails. I entertained no doubt upon this point, nor can I, upon inquiry, find that it was ever doubted in the other branches of the Court. In effect, the rule is proved by the fact that the creditor and the Defendant, the executor, may settle the matter pending the suit, by the latter paying the debt and costs of the suit. And it has twice been decided at the Eolls that the Court will order the same thing to be done, even when [214] the suit had proceeded to a considerable extent. If then the Court would compel a creditor to accept payment of his debt when the executor offers to pay it, with the costs of suit, where is the line to be drawn, beyond which the Plaintiff cannot be allowed to have the exclusive benefit of his own suit. I am satisfied that in this case there ought to be a decree for immediate payment. It was objected, however, that in Sterndale v. Hankinson Sir A. Hart said that, on the filing of a creditors' bill, every creditor has an inchoate right in the suit; the meaning of that expression is that a right then commences which may indeed fail, but may also be perfected by decree; and it is not inaccurately called an inchoate right. After the decree every creditor has an interest in the suit; but the question is whether the Plaintiff, until decree, is not dominus litis, so that he may deal with the suit as he pleases. There is nothing to prevent other creditors from filing bills for a like purpose; and there is nothing more common than for several suits to exist together, and the Court permits them to go on together until a decree in one of them is 90 WOODGATE V. FIELD 2 HARE, 215. obtained, because it is possible, before the decree, that the litigating creditor may stop his suit. The only question then is whether the Plaintiff has sufficiently proved his debt. The Defendant admits that he saw the note before putting in his answer; he therefore knew what was upon the face of it. It purports to be signed by the intestate, and it has two attesting witnesses. They deposed that it was produced to them, written as it now appears, except that the interlineation of the name of the payee was omitted; that the interlineation was inserted in their presence, and that it was then signed in their presence by the intestate; I see no ground for saying that the evidence was not sufficient. [215] It is quite clear that it would be sufficient at law. The Defendant might have cross-examined the attesting witnesses; or, if necessary, he might have filed a cross-bill for discovery. There is no evidence that the note was a forgery, and no statement of the ground for that suggestion. The only point suggested at the Bar as a reason why the decree should not now be made was that the practice was supposed to be different, and that...
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