Mr Cotton brought proceedings against Mr Heyl and a company which were compromised on the terms of a Tomlin order which contained an undertaking by Mr Heyl to pay Mr Cotton pounds 1,000 forthwith and pounds 4,000 out of the first monies received by or on behalf of Mr Heyl from the sale or licensing of certain patents. At that time, Mr Cotton was aware that Mr Heyl had already disposed of half of his interest in the patents. The pounds 1,000 was duly paid. Subsequently Mr Heyl sold the remaining half of his interest for pounds 10,000 payable in stages, but failed to pay Mr Cotton the sum of pounds 4,000. Mr Cotton applied for an order for committal alternatively leave to issue a writ of attachment against Mr Heyl.
Held: the undertaking was caught by section 4, but that the exception contained in subsection (3) applied, although The order was refused, since no time for payment had been specified.
The undertaking was caught by section 4, but the exception contained in subsection (3) applied and an undertaking to money could not be enforced by committal or attachment unless one of the exceptions applied.
Luxmoore J said: ‘My attention has been called to a decision of Byrne J. in Carter v. Roberts [1903] 2 Ch 312. In that case the defendant gave an undertaking as also did the plaintiff ‘to pay all sums of money which shall be received by them in respect of the matters in dispute in this action to the credit of the partnership account of the plaintiff and defendant with [certain banks].’ . . The learned judge decided that that case was not within any exception to the Debtors Act, 1869. The undertaking in fact was merely to pay into a joint account to await the decision of the court, and with all possible respect to the learned judge it is a little difficult to see how this was an order for payment of money covered by the Debtors Act at all. Indeed the decision hardly seems to be in accord with what was said by the Court of Appeal in the case of Bates v. Bates. [He proceeded to quote from the judgment of Lindley LJ.] I am satisfied in the present case that there has been a breach of an undertaking which is within the Debtors Act, 1869, s. 4.’
Luxmoore J
[1930] 1 Ch 510
Debtors Act 1869 4
England and Wales
Citing:
Distinguished – Carter v Roberts ChD 1903
The parties to a partnership dispute respectively undertook to pay all sums of money received by them into a particular account pending trial. One of the parties allegedly failed to honour his undertaking, and the other party sought his committal, . .
Cited by:
Cited – Hussain v Vaswani and Others CA 18-Sep-2020
Breach of Undertaking went Beyond Debt
The tenant had obtained a stay of execution of a warrant for possession, by undertaking to discharge the arrears. He failed to pay, and the Court now considered whether such a failure was a contempt with a possible imprisonment for punishment. The . .
Lists of cited by and citing cases may be incomplete.
Contempt of Court
Updated: 11 December 2021; Ref: scu.654051
