Borough v Williamson

• Jurisdiction: Ireland
• Judgment Date: 31 May 1848
• Date: 31 May 1848
• Court: Court of Chancery (Ireland)

Chancery.

Head before RICHARDS, B., JACKSON, J., and BROOKE, M. C.

BOROUGH

and

WILLIAMSON.

Swann v. BrowneENR 3 Burr. 1595.

Morris v. PughENR 3 Burr. 1241.

Rolleston v. MortonUNK 1 Dr. & War. 171; S. C. 4 Ir. Eq. Rep. 147.

Robinson v. TongeENR 3 P. Wms. 398.

See Appendix to 5 Bar. & Adol.

CASES IN THE COURTS OF CHANCERY, ROLLS, AND Ofitittp @ateQuer, BOROUGH v. WILLIAMSON. (Chancery) BEFORE THE LORDS COMMISSIONER'S.. Tnis was a mortgagee's suit for foreclosure and sale of certain freehold estates, one-third of which belonged to John Browne Williamson, one of the mortgagors, the remainder to his brothers David and George, the other mortgagors. Under the decree to account the Master found, that in or as of Hilary Term 1842, the defendant Emma B. Williamson obtained a judgment in her Majesty's Court of Common Pleas against the defendant John B. Williamson for the penal sum of £1000 debt * Heard before RictiAnns, B., JACKSON, J., and BROOKE, M. C. 2 CASES IN EQUITY. 1848. besides costs ; and that there was due to the said Emma B. Wil ce - Chanry. • hamson upon foot of the said judgment the principal sum of £500 BOROUGH v. and certain arrears of interest and costs, amounting to £667. lls. WILLIAMSON. He also found that the defendant John Buckley, in or as of Mary Statement. Term 1842, obtained separate judgments in her Majesty's Court of Exchequer against the defendant John B. Williamson and the two other mortgagors for the sum of £700 debt besides costs, to secure £350 and interest, and that the said last mentioned judgments were obtained on the joint and several bond of the conuzors, dated the 9th of February 1842, and that there was due for principal, interest and costs to the said John Buckley £478. 14s. 6d. The report then contained the following finding : " I find that the .in.dgment so obtained by the said Emma Browne Williamson as aforesaid, and the judgments so obtained by the said John Buckley having been entered up as of one and the same Term, as hereinbefore mentioned, although the said judgment so obtained by the said Emma B. Williamson was, in fact, entered before the said Buckley's judgment, are all of equal priority, and therefore that the respective sums so due upon foot of said four last mentioned judgments are in equal priority as aforesaid the next charge" (after the plaintiff's mortgage) " affecting the estate and interest of the said defendants John, David and George B. Williamson in the said lands and premises, and that neither of the sums now due or to accrue due upon foot of said judgments respecÂtively should be paid out of the funds to be realised in this cause before the other." The judgment confessed to Emma B. Williamson was in reality entered on the 26th of January 1842 ; that recovered by Buckley was entered on the 1 1 th of February 1842. These dates were entered in the margin of the records pursuant to statute 3 G. 2, c. 7. Buckley's judgment was in the Court of Exchequer; Emma Browne Williamson's was in the Common Pleas. According to the form in which judgments are entered in the Exchequer, the record, after the formal commencement, which refers to the Term only, and after the entry of the parties' names, states that in the Term referred to the plaintiff brought his bill against the defendant, "the tenor CASES IN EQUITY. 3 of which bill follows in these words, that is to say." It then sets out the declaration, in the very commencement of which it is stated that the plaintiff comes before the Barons of the Exchequer on a certain day mentioned-in strictness the day of the defendant's appearance--and complains by bill against the defendant present in Court the same day, of a plea, &c.,-setting forth the cause of action. In judgments on warrants of attorney this part of the record follows the form of a declaration in debt. The record of a judgment in the Common Pleas, after the formal commencement entitled of the Term generally and the entry of the parties' names, proceeds at once in the words of the declaration, which in that Court comÂmences merely by stating that the defendant was attached to answer the plaintiff, and thereupon the plaintiff complains that, &c., setting forth the cause of action. In judgments on warrants of attorney it is, as in the Exchequer, a declaration in debt.* Thus, in the Exchequer the day of the supposed appearance and declaration appears in the body of the judgment to be of a certain date after the first day of the Term, which is not so In judgÂments in the Common Pleas. Emma Browne Williamson excepted to the foregoing report, insisting that her judgment should have been reported prior to that recovered by Buckley. Mr. Baldwin, Mr. Hughes and Mr. Norman, in support of the exception. They relied first upon statute 3 & 4 Vic. c. 105, as having made judgments a charge on the estates of the debtor from the real date of their entry, and argued that absurd consequences would follow if the words " the time of entering up such judgment," the phrase used in the 19th and 22nd sections, were interpreted to mean the fictitious date under the pre-existing law. Thus, suppose the conuzor of these two judgments was seised of lands at the date of the entry of the first, and sold them before the date of the entry of the second, unless the real dates were referred to, the purchaser would be bound by Argument. • See precedents Ferguson's forms, 236, 237 ; Tidd's forms, 181, &c. 4 CASES IN EQUITY. both under the 22nd section ; and so, the concluding sentence of that section, which prevents a judgment creditor from enforcing his charge in equity until after the expiration of a year from the enterÂing up of the judgment, would, if the fictitious time be referred to, in the case of judgments entered at the end of October, restrict the creÂditor to little more than six months. A similar absurd consequence would follow in calculating interest under the 26th section; and decrees or orders being, under the 27th and 28th sections, placed on the same footing as judgments, shows that their priority must depend on the true dates, as no fiction is admitted in the case of decrees or orders. They argued that therefore it must have been the meaning of the Legislature to alter the old doctrine of the relation of judgments to the first day of Term, which had in fact been preÂviously abolished by a rule of Court in England, before the passing of the analogous English statute, from which these provisions of statute 3 & 4 Vic. c. 105 were copied ; and they relied on the general policy of the Act and the obvious justice of such an alteration, as leading to the same conclusion. They also contended that, even independently of that statute, Buckley's judgment, being in the Exchequer, should be postponed to Miss Williamson's, which was in the Common Pleas ; inasmuch as a judgment in the Exchequer shows in the body of it the ,Elate of the appearance, before which the judgment could not have been entered, but in the Common Pleas the whole record refers geneÂrally to the first day of Term ; that the recital contained in the 10th section of the 7 W. 3, c. 12, shows that a distinction existed at Common Law between the relation of judgments in the Exchequer and in the other Courts of Law ; that in the former, the day of the return of the original being the day of the defendant's appearance, no judgment could before that have been given against him, while in the other Courts the declaration related to the first day of the Term; that thus the priority should be ascertained without travelÂling out of the record itself : Swann v. Browne (a); or having recourse to the entry of the date under the Docketing Act 3 G. 2, (a) 3 Burr. 1595. CASES IN EQUITY. 5 c. 7, which was only available in favour of purchasers, &c.; and they argued that this might be pleaded even at law : Morris v. Pugh (a). They also referred to statute 7 & 8 Vic. c. 90 (Registry of JudgÂments), and statute 7 W. 3, c. 12 (Statute of Frauds), and the 32nd section of statute 5 & 6 W. 4, c. 55 (Sheriff's Act), as bearing on the construction of 3 & 4 Vic. c. 105, and cited Rolleston v. Morton (b). 1848. Chancery. BOROUGH v. WILLIAMSON. Argument. Serjeant Warren, Mr. Brewster and Mr. Molesworth, contra. They contended that statute 3 & 4 Vic. c. 105, made no alteration in the law as regarded the priority of judgments inter se; that that was a subject with which the Act was not at all conversant, its object, as far as judgments were concerned, being only to increase the remedies of the creditors against their debtors, as ex. gr, by enabling the creditor to extend the whole in place of a moiety of his debtor's lands ; that there is admittedly no express enactment altering the previous rule, and therefore the words, " at the time of entering up said judgment," must refer to that time which, accordÂing to the existing law, was regarded as the time of its entry-viz., the first day of the Term of which the judgment is entitled ; that there is no way of ascertaining on the face of a judgment what was the real date of its entry ; that the concluding sentence of the 22nd section of the statute shows that it was not the intention of the Legislature " to take away or prejudice any remedy which any such judgment creditor might have had if that Act had not passed," which must necessarily be done if its effect was to alter the prioriÂties in which judgments stood in reference to each other; that if necessary to hold that the true date of the entry was to be regarded for...