Ferrall v Boyle, Boyle v Ferrall

• Jurisdiction: Ireland
• Judgment Date: 30 May 1839
• Date: 30 May 1839
• Court: Court of Chancery (Ireland)

Ferrall.

and

Boyle,

Boyle

and

Ferrall.

CASES

IN THE

COURTS OF CHANCERY, ROLLS, AND

EQUITY EXCHEQUER.

CHANCERY.

ASSIGNMENT OF JUDGMENT — RELATIVE RIGHTS AND DUTIES OF CONUZOR AND ASSIGNEE.

This was a suit for an account, brought by Ferrall, the conuzor of a judgment, against Boyle & Co., to whom the judgment had been assigned, Ferrall alleging that the judgment had been paid off.

The principal questions discussed in the case were, first, whether the conuzor of a judgment can have credit for payments made by him to the original conuzee, after the latter has assigned away the judgment, the assignment being regularly enrolled under the statute,* but the conuzor being ignorant that such assignment has taken place.

Secondly, whether the circumstance that the original conuzee had taken proceedings by outlawry, and got a grant in custodiam of the conuzor's lands in virtue of his judgment, made any difference in the case, or rendered it incumbent on the assignee of the judgment, who had enrolled his assignment, to give notice to the conuzor to discontinue all further payments to the original conuzee.

Thirdly, whether an assignee, who had notice that such custodiam proceedings had been had, and who did not warn the conuzor to discontinue all payments to the original conuzee, can avail himself of the enrolment of the assignment under the statute, and refuse credit to the conuzor for payments made by him in ignorance of the assignment.

The circumstances under which the above questions arose were as follows:

The plaintiff, Ferrall, had succeeded, on the death of his uncle, to considerable estates in the county of Roscommon, and being in embarrassed circumstances, he, in 1823, executed his bond and warrant to Patrick Nolan, for £4026. 8s. 10d., and went abroad, having appointed the said Patrick Nolan agent and receiver of his rents.

Nolan entered judgment on the above bond, in Michaelmas, 1823, and Farrell being abroad, Nolan took proceedings by outlawry against him, and obtained a grant in custodiam and an order of the court of Exchequer, in February, 1825, on Ferrall's tenants, to pay their rents to him as custodee.

Nolan purchased several other judgments from other creditors of Ferrall, amounting to about £8960. 14s. 1d. He took like proceedings by outlawry thereon, which it is unnecessary here to state more particularly.

Ferrall returned to Ireland, in 1828. He found his affairs still in disorder, and conceiving that Nolan must by this time have been paid off out of the rents, he required him to come to an account.

Disputes ensued, pending which Ferrall was arrested, in November, 1828, by one Moriarty, another of his creditors, and remained in prison several years.

The disputes being Ferrall and Nolan still continued, and in January, 1829, Ferrall being still in prison, Nolan furnished his accounts, claiming a balance of £22,874. 15s. 8d., and remained in receipt of the rents.

Ferrall protested against the accuracy of the account, and it was referred to one Strickland to adjust it. He made his award, 17th December, 1829, and thereby found, that debiting Nolan with the rents, the balance still remaining due by Ferrall to Nolan was £15,396. 5s. 9d. on foot of all accounts up to 5th May, 1829.

The award, however, failed in adjusting the differences between the

parties. Ferrall wished to strike off an item of £3000, and other large sums, from the credits to Nolan. Nolan, on his part, said, that the above-mentioned judgment of 1823 (concerning which the questions now arose in the present suit) had been wrongly omitted by Strickland in taking the account.

In order to accommodate matters, a deed was executed by Ferrall and Nolan, bearing date 30th July, 1831, by which it was agreed that the £3000, objected to by Ferrall, should be struck off; and, on the other hand, that the said judgment of 1823 should be brought into account; and it was further agreed that if Ferrall should procure his other creditors to take their demands by instalments out of the residue of the rents, after payment of £3000 a-year to Nolan, Nolan was to accept that sum yearly, until his demands should be paid off, but without prejudice to the custodiam obtained by him.

Ferrall still remained in prison. The proposition contained in the above deed, as to paying £3000 a-year only to Nolan, did not appear to have been carried into effect, but a deed, bearing date 25th June, 1834, was executed, by which Ferrall, in order to raise money to pay off his creditors, vested his property in O'Connor and Veevers, as trustees, who were to pay Nolan £2500 a-year (which he agreed to accept, instead

of £3000) until his demand was paid off. Nolan was to facilitate the raising of £15,000 to pay off creditors, by giving priority to the persons advancing it, and Messrs. Stewart and Kincaid were appointed to receive the rents for the trustees.

Money was accordingly afterwards raised, by way of annuities on the estates. Nolan joined in the securities to the annuitants, directing O'Connor and Veevers, the trustees, to pay the annuities first, and then his £2500 a year, until the sums due on foot of his custodiam should, be paid off, and he reserved a right to resort to his grants in custodiam in case any default should be made in paying the £2500 a-year.

Money having been thus raised, Ferrall obtained his liberation from prison, in August, 1834; and again called on Nolan to come to an account.

Nolan had continued in receipt of Ferrall's rents until the conveyance to O'Connor and Veevers, as trustees, and the appointment of Stewart and Kincaid, as receivers. Subsequently to that date, he received several sums through their hands, on foot of the rent-charge or annuity of £3000, afterwards reduced to £2500 by the deed of June 1834. These payments by Stewart and Kincaid continued down to 1st December, 1834, although Nolan had, in the mean time, as will be mentioned hereafter, assigned away the judgment of 1823.

Pending the above transactions between Ferrall and Nolan, the latter, who was also in embarrassed circumstances, had been raising money on his own account, by various means, and without the knowledge of Ferrall, had assigned the judgment of 1823, by way of pledge, to secure advances made to himself, and had also made over, for the like purpose, his right to receive the £2500 a-year.

These transactions between Nolan and his own creditors, so far as related to the judgment of 1823 (now in question), were as follows:—

On the 9th January, 1833, Nolan, being then indebted to Brown and Co. in a sum of £1400, in order to secure the same, by deed assigned the judgment of 1823 to them, by way of pledge, and in that deed alleged that the whole sum of £4026. 8s. 10d., Irish currency, remained due by Ferrall on foot thereof.

On 18th July, 1833, another assignment of the judgment took place, Nolan having paid off Brown and Co. their £1400, by raising a sum of £1900 from one Robert Gray, and in order to secure the latter sum, Nolan procured Brown and Co. to join him in making this last entioned assignment to Robert Gray, the deed stating that £3844. 7s. 2d., British, was then due thereon by Ferrall, for principal, interest and costs.

On 31st July, 1834, Nolan having been receiving advances from Boyle and Co., as bankers, he, in order to induce them to continue their advances, procured a letter from Messrs. Stewart and Kincaid, the receivers appointed under the deed of 25th June, 1834, which was as follows:

“Dear Sir,

“You will please mention to Messrs. Boyle and Co. that we shall pay them, pursuant to the memorandum between Mr. Kincaid and you, on the 1st September next, £1000; on 1st December following, £625; and every three months after, so long as we continue agents of Mr. Farrell's estates, the sum of £625, on every 1st March, 1st June, 1st September and 1st December following, until your custodiam debt shall be discharged.

“Your obedient servants,

“Stewart and Kincaid.”

31st July, 1834.”

[The memorandum referred to...