Hockson v Collis

• Jurisdiction: Ireland
• Judgment Date: 14 June 1847
• Date: 14 June 1847
• Court: Court of Chancery (Ireland)

Chancery.

HOCKSON

and

COLLIS

Geraghty v. Abbott 8 Ir. Law Rep. 60.

Sausse and Acully's ReportsENR Sau. & Sc. 493.

Drury and Walsh's ReportsUNK 1 Dr. & Wal. 560, et seq.

Drury and Walsh's ReportsUNK 1 Dr. & Wal. 542.

Sausse and Scully's ReportsENR Sau. & Sc. 512.

Jones and Latouche's Reports 1 Jo. & L. 105.

Jones and Latouche 1 Jo. & L. 94.

Irish Equity ReportsUNK 6 Ir. Eq. Rep. 524.

Geraghty v. Abbott 8 Ir. Law Rep. 60.

Knox v. KellyUNK 1 Dr. & Wal. 577.

Blake v. DarcyUNK 1 Dru. & Wal. 561.

Knox v. KellyUNK 1 Dr. & Wal. 554-5.

CASES IN EQUITY. 447 against that mortgagee. I feel, therefore, justified in refusing to grant the receiver, and must affirm the order of the Rolls, with costs ; the defendant to receive the deposit. HICKSON v. COLLIS. Tins case had been heard before Sir E. Sugden, and is reported, ante, vol. 6, p. 524. It now came again before the Court on a petition of re-hearing presented by John Busteed. The only facts material for the question re-argued were the following : John Busteed, deceased, recovered a judgment in Michaelmas Term 1818, in the Court of Exchequer, against William Collis, which judgment was now vested in John Busteed the petitioner. On the 1st of April 1831, William Collis executed a mortgage to J. J. Hickson of the lands of Lismore, which was now vested in the plaintiff. The judgment was not redocketed or revived until 1840, in which year it was revived by the petitioner. The Master reported that the judgment was void as against the mortgage, not having been redocketed or revived within twenty years before its execution or five years from June 1828, the passing of the RedockÂeting Act, 9 G. 4, c. 35. The petitioner excepted to this report, contending that the judgment did not lose its priority, notwithÂstanding the second section of that Act. At the hearing before Sir E. Sugden the exception was overruled. Mr. Hughes, Mr. F. A. Fitzgerald and Mr. Conyngham Ellis, in support of the exception. Mr. Serjeant Warren, Mr. Hickson and Mr. Franks, contra. The principal authority cited, in addition to those referred to in the former argument, was Geraghty v. Abbott (a). It was also insisted by Counsel for the petitioner, that this quesÂtion had been brought before Sir Michael O'Loghlen upon the very same state of facts, and that his Honor had decided that (a) 8 Tr. Law P.ep. 60. 448 CASES IN EQUITY. 1847. Busteed's judgment was not void as against the plaintiff's mort Chancery. gage. In proof of this position, proceedings by Hickson, under HICKSON the Judgment Creditors' Act, instituted in 1841, were given in v. evidence; by which it appeared that Hickson, having presented his COLLIS. petition on the 5th of June 1841 for a receiver over the lands of Statement. Lismore, amongst other lands, and obtained a conditional order, Collis, on the 15th of June, showed cause as to those lands of Lismore, on the ground that the petitioner's judgment was not redocketed within twenty years of its entry or five after the passing of the Act 9 G. 4, c. 35. The cause, however, was disallowed as to those lands by his Honor, who ordered that the receiver in the cause of Hickson v. Collis, when appointed, should be extended to the matter. Statute 7 & 8 Vic. c. 90, s. 7, was also relied on as having altered the law since the former hearing of this case.* June 23. Judgment. The LORD CHANCELLOR. I will consider this case before deciding it. I should be very slow to give the benefit of the recent statute to the parties. It would be a dangerous thing to allow a re-hearing for the purpose of giving the benefit of an intermediate Act of Parliament. There is no authority for such a course. Whatever my impression may be, I am disposed to look at the question apart from that statute, as bound by authority ; and though I should not come to just the same conÂclusion as my learned predecessor, on the construction of this section of the Redocketing Act, my opinion should be much stronger than it is at present, before I would overrule his decision. [The case having stood over for further consideration, the judgÂment was inevitably postponed in consequence of the Lord ChanÂcellor's indisposition, until Trinity Term 1848.3 1848. June 14. The LORD CHANCELLOR. This case comes before the Court on a petition of re-hearing, presented by John Busteed, a judgment creditor of the defendant William Collis, who claims the amount now due on a judgment obtained by John Busteed, deceased, against the defendant, in or an of Trinity Term 1818. This judgment has been revived by the petitioner in Trinity Term 1840, as administrator de bonis non of John Busteed. The question raised in respect of it is not one between the petitioner and the defendant, but between the petitioner • See Carroll v. Darcy, ante p. 321. CASES IN EQUITY. 449 and the plaintiff, who claims under a mortgage of certain lands the estate of the defendant, by deed of the 1st of April 1831, for valuable consideration, and who in that right disputes the demand of John Busteed. The decree to account in this cause was pronounced on the 8th day of June 1837, and under that decree the petitioner filed a charge on the 21st day of June 1838 as an equitable assignee of this judgment. That charge appears to have been disallowed ; but the petitioner having revived the judgment in the manner stated, filed a second charge on the 24th day of June 1840. Interest is alleged to have been paid on this judgment to the petitioner in the year 1827 ; and the present suit, to the benefit of which the petitioner is entitled, was instituted before the expiration of twenty years from the date of the judgment, so that the debt is not affected by the Statute of Limitation. The plaintiff being a mortgagee of 1831, which was only thirteen years after the rendition of the judgment, it was plainly a subsisting and valid incumbrance on the mortgaged lands at the date of his mortgage. But it appears that the judgment was not revived or redocketed before the execuÂtion of the plaintiff's mortgage, or within five years of the passing of the statute 9 G. 4, e. 35 ; and the plaintiff therefore contends that under the second section of that Act the judgment has become null and void as against him. Upon this state of facts the Master reported in favour of the plaintiff, and against the claim of Mr. Busteed. An exception was taken by him to that report, which came on to be argued on the 22nd of April 1844, before Sir Edward Sugden, by whom the exception was overruled (a), and judgment thereon was given for the plaintiff. The present petition of Mr. Busteed prays a re-hearÂing of the case on this exception. It has been accordingly argued again before me, and it remains for me now to pronounce judgment on this question between the parties. The statute on which the question depends is that known famiÂliarly as "Moore's Act," viz., 9 G. 4, c. 35, which received the royal assent on the 27th of June 1828. It is entitled, " An Act to proÂtect purchasers for valuable consideration in Ireland against judgÂments not revived or redocketed within a limited time." At the time this Act was passed, the law of Ireland as to judgments was mainly governed by the provisions of the statute 8 G. 1, c. 4. Under that statute a plea of payment was a bar to any suit on a judgment over twenty years old, unless there had been some payment or other satisfaction made on account of it, or some proceeding had on it (a) Ante, vol. 6, p. 524. 450 CASES IN EQUITY. • within that period. There was therefore no certain record or period to refer to as conclusive of the right to sue upon such judgments, as the plea might be defeated by evidence of matter in pais, or by proof of proceedings not in any way connected with the original record of the judgment so as to lead to their discovery by any ordinary search. The consequence was, that in the language of the preamble to the statute 9 G. 4, c. 35, a number of old outstanding judgments appeared unsatisfied on record in the several Courts, although conÂsiderable numbers of them had been actually paid off and discharged; and it is obvious that this evil was one which would progressively continue and become every day more serious and embarrassing. A defect also existed in the records of the judgments as entered in the respective Courts, which is recited in the preamble to the statute 9 G. 4, c. 35, viz., that the defendants were not sufficiently described so as to identify those against whom the...