The English Reports: King's Bench (1378-1865)

417. S. C. 4 M. & P. 87). There was quite enough evidence to go to the jury; and, if so, the direction being correct, the verdict cannot be disturbed. [The arguments here on the weight of the evidence are omitted.] Secondly, as to the admissibility of the award. It is, in the first place, evi-[931]-dence under both issues, as a fact shewing in what circumstances Edward Thorpe was, at, and just previously to, the time of the judgment by default at the suit of Eyre. It is also evidence as to the property, just as any other deed would be, which affected to deal with the land. It is not necessary, to make such an instrument evidence on these grounds, that both the parties to the particular action should be parties to the instrument. Thirdly, as to the effect of the award: it determined the tenancy from the delivery, and revested the property in the present plaintiff. It will be argued that an award is not a surrender, and therefore that the property was not changed; and Hunter v. Rice (15 East, 100), may be cited. In that case, an award was offered by the plaintiff as evidence of his property in certain hay; and the award had directed that the hay should be delivered up to the plaintiff, on his paying a certain sum, which sum had been tendered and refused. And it was held, that this award did not transfer the property. But the arbitrator, there, had no power reserved to him of saying specifically what was to be done with the hay; and Lord Ellenborough distinguished between property awarded to be transferred, and property actually transferred by the contract of the owner through the medium of his agent. Now here, Edward Thorpe by his own act had conferred upon the arbitrator the full controul; for the arbitrator was to say what should be done with respect to the land. Besides, the party who was to deliver possession, in Hunter v. Rice (15 East, 100), repudiated the award: here, Edward Thorpe has let the plaintiff into possession. In Doe d. Morris v. Rosser (3 East, 11), [932] an action of ejectment had been referred to arbitration, and the award was held to be conclusive in a second action of ejectment between the same parties (a). [Taunton J. The decision was, that the award was conclusive as to the right. Can your award be more than executory till the possession is actually delivered up? Patteson J. The effect of the award in Doe d. Morris v. Rosser (5 East, 11), was, that the land had always been the property of the claimant. Now here, so far as the possession during the term is concerned, the property was, up to the time of making the award, found to be in Edward Thorpe. Is there any instance in which an award has been held to transfer property?] This award expressly determines the tenancy; when the tenancy is determined, the landlord's property vests in possession. [Taunton J. Suppose Edward Thorpe had mown and taken the hay on the 1st of June; could the plaintiff have brought trover?] At all events the case may be put as that of a surrender by operation of law determining the tenancy. In Thomas v. Cook (c), a surrender in law was construed to arise upon a landlord's accepting, as his tenant, a party whom his lessee had let into possession as under-tenant, the first lessee consenting, though notbing passed in writing. Walls v. Atcheson (3 Bing. 462), was a similar decision. The plaintiff here could not have sued Edward Thorpe for use and occupation after the delivery of the award: the whole transaction between the parties ultimately amounts to a surrender; and the only question is as to the date. On the delivery of the award Edward Thorpe [933] ceased to be tenant, and became bailiff. Lastly, as to the claim of emblements: the custom shews only a right to the crops on the regular expiration of the tenancy at Lady-Day. This case is not within. the custom, which would not have given emblements to Edward Thorpe if he had actually surrendered at Lady-Day. Emblements are given only where the tenancy determines by the act of God, or of a third person; the act of a third person means only the act of one over whom the party has no control; and the rule properly applies where the loss of the possession could not be foreseen or guarded against. Thus, if a parson let land for a year without confirmation, and die within the year, the lessee shall have emblements; but if the parson lose his benefice by misconduct, he himself shall have no emblements. [Taunton J. This is a question of way-going crops under a custom; it is quite a different matter from emblements, which are by common law: Com. Dig. Biens. G, 2. Patteson J. It might be argued that, although the custom might not in itself give the crops to Edward Thorpe, yet it might furnish an inference that the arbitrator's intention (he not declaring the contrary) was, that

(a) See Whitehead v. Tattersall, ante, 491.

the tenant should not lose the crops to which he would have been entitled under the custom.

The defendant in person, in support of the rule. First, as to the direction of the learned Judge. The jury may have been led to suppose that if Edward Thorpe did not resist the judgment, it was voluntary and collusive; on which principle every judgment by default would be collusive. But since there was a debt proved, as the learned Judge himself pointed out, the proceeding to recover it must be held to be adverse. [934] The doctrine of fraudulent preference does not apply to the thirtysecond section of the Insolvent Act, and that section is inapplicable in all cases where the debtor has been simply passive. It does not even contain the provision, which is found in the Bankrupt Act (6 G. 4, c. 16, s. 3), as to procuring goods to be taken in execution. The safest guide in doubtful cases is the wording of the Act: and besides, this statute may be considered as depriving the subject of his rights, in derogation of the common law; and, if so, it should be construed strictly, as was admitted by Lord Tenterden in Cockburn v. Harvey (2 B. & Ad. 800). At common law the debtor might have given a warrant of attorney for this debt. The judgment cannot, in itself, be considered as tantamount to a transfer by the party against whom it is recovered. It was held in Sir Gerrard Fleetwood's case (c), that a bona fide sale of chattels is good after judgment and before execution. A judgment creditor must take out execution before he is entitled to redeem a mortgage; Shirley v. Watts (3 Atk. 200): and Angel v. Draper (1 Vern. 399), and Brace v. The Duchess of Marlborough (2 P. W. 491), (second point), go to establish a similar principle, namely, that the Court will not treat a judgment, not followed by execution, as a conveyance of the property. In Doe dem. Wigan v. Jones (10 B. & C. 468), it was said, that a judgment was not an act done by the party against whom it was recovered, but was a proceeding in invitum, and therefore might be defeated by the subsequent execution of a previously granted power, though the party executing was the party [935] who had suffered the judgment. Sharpe v. Thomas (6 Bing. 417. S. C. 4 M. & P. 87), does not militate against this principle, for there the party had not been merely passive; he had executed a warrant of attorney. It has been held that a transfer made under apprehension of arrest is not voluntary within the thirty-second section of the Insolvent Act; Corbould v. Broadhurst (1 M. & Rob. 189): and that case shews that the word "voluntary" is to be interpreted as in the Bankrupt Act. Now, under the Bankrupt Act, it is held that a fresh consideration prevents a payment from being voluntary: Hunt v. Mortimer (10 B. & C. 44), Arnell v. Bean (8 Bing. 87). But here the debt, which was established, was in the nature of a new consideration for the judgment. [He then proceeded to argue this from the facts.] It is only where there is no new contract producing the transfer, &c., that the intention of the bankrupt is material. The learned Judge ought to have defined the meaning of "voluntary to the jury. The merely submitting to the judgment is not a frand within stat. 13 Eliz. c. 5: Holbird v. Anderson (5 T. R. 235). [Patteson J. No doubt a man, independently of the Bankrupt and Insolvent Acts, is entitled to prefer one creditor to another.]

Secondly, as to the evidence. Fraud is not to be presumed; but there should be distinct evidence of fraudulent intention, as was laid down by Burrough J. in Flook v. Jones (12 Moore, 112), where the question was whether bankruptcy had been contemplated. [The arguments upon the facts here are omitted.]

[936] Then as to the award. A stranger cannot be estopped by the award; Rex v. Cheadle (3 B. & Ad. 833), Rex v. Cotton (3 Campb. 444). And if it is said that this award estops the present defendant, as claiming under or through Edward Thorpe, it may be answered that all estoppels must be certain to every intent, and must not be taken by argument or inference: Co. Lit. 352 b. Neither could this award, if admissible as against the present defendant, determine the tenancy; Hunter v. Rice (15 East, 100). The order of Nisi Prius directed the arbitrator to say what was to be done by the parties; he could not do any act himself, such as the determination of the tenancy would be. It has been denied that Edward Thorpe would have been liable to the present plaintiff in an action for use and occupation after the delivery of the award; but in fact he would have been so liable. The argument on the other side, would make him liable as a trespasser. This award cannot, as has been argued,

operate as a surrender in law; the transaction has none of the circumstances essential to such a construction. The property, at common law, would have been bound by the teste of the fi. fa.: Anonymous case, in Cro. Eliz.(d). The Statute of Frauds, 29 Car. 2, c. 3, s. 16, does indeed enact, that the property shall be bound only from the time of the delivery of the writ; but, by the preamble to the fifteenth section, it appears that this was intended merely as a protection to bonâ fide purchasers for valuable [937] consideration, which the present plaintiff can scarcely be said to be by virtue of the award. Now the writ was tested before the date of the award. At any rate, Edward Thorpe was entitled to emblements, for he cannot be said to have determined the tenancy himself, according to the authorities; Bulwer v. Bulwer (2 B. & Ald. 470); 1 Roll. Abr. 726, Emblements, A, pl. 7; Davis v. Eyton (7 Bing, 154). It is very improbable, besides, that the arbitrator should have meant to deprive Edward Thorpe of the customary way-going crops, to which he would have been entitled if he had gone out regularly at Lady-Day.

Cur. adv. vult.

Lord Denman C.J. delivered judgment in the same term, January 27th, as follows:This case, which was tried before Bolland B. at the assizes for Buckinghamshire, arose out of proceedings under the Interpleader Act. The Court directed two issues: first, whether certain growing crops taken in execution by the defendant in an action against one Edward Thorpe were his property; secondly, whether the judgment and execution were void against the plaintiff, as assignee of Edward Thorpe under the Insolvent Act of 7 G. 4. The verdict was for the plaintiff on both issues, finding that the goods did not belong to Edward Thorpe, and that the judgment and execution were void as against the plaintiff. The defendant moved for a new trial, complaining that the verdict was against evidence on the latter issue, and that an award between the two Thorpes was improperly received in [938] evidence against this defendant, and that the verdict proceeded on a misdirection as to the law on both.

Whether the property belonged to the plaintiff or to Edward Thorpe, mainly depended on the effect to be given to that award made in an action between Edward Thorpe and the plaintiff. Edward Thorpe had held a farm, the property of the plaintiff, as a Lady-Day tenant, in a country where the custom of way-going crops prevailed on the regular expiration of a Lady-Day tenancy.

We have no doubt that the award was admissible in evidence; and we think the custom had no operation in the case of a tenancy so determined.

The award made on the 1st of June ordered that Edward Thorpe's tenancy should cease at the delivery of the award, but that he should give up the farm a month after that period. The plaintiff had argued at the trial that the property was changed by the award, and the learned Judge appears so to have directed the jury. We think that the award could not of itself change the property.

The plaintiff at the trial endeavoured to maintain his issue that the judgment was void, by evidence that it was voluntary within the thirty-second section of the Insolvent Act. But as that section speaks only of acts done by the debtor, we are strongly inclined to think that it cannot apply to a judgment, without clear proof at least that the insolvent had acted in collusion with the creditor in his obtaining the judgment, for the purpose of giving him a preference over other creditors; and we collect from the defendant's statement that the learned Baron so instructed the jury; but on reading his [939] report, we apprehend that the jury had no sufficient evidence to support their finding.

We therefore think it desirable that both these issues should be submitted to another jury.

Rule absolute for a new trial.

End of Trinity term, vacation, &c.

(d) Cro. Cliz. 174. See the cases cited in Payne v. Drew, 4 East, 523; and note (¿) to Wheatley v. Lane, 1 Saund. 219 f. Sugden's Vend. & Pur. ch. xvi. s. 4, p. 198, (9th ed. 1834).