Hunt v Bateman

• Jurisdiction: Ireland
• Judgment Date: 09 June 1848
• Date: 09 June 1848
• Court: Equity Exchequer (Ireland)

Equity Exch.

HUNT

and

BATEMAN.

Keane v. Barry 8 Ir. Law Rep. 211.

Hickson v. CollisUNK 6 Ir. Eq. REp. 524.

Lessee Moffett v. Whittaker Long. & Town. 141.

O'Kelly v. BodkinUNK 3 Ir. Eq. Rep. 390.

Townshend v. Townshend 1 Bro. C. C> 551

Beckford v. Wade 17 Ves. 87.

Cholmndeley v. Clinton 2 Jack. & Walk. 175.

Milnes v. LawleyENR 4 Price, 103.

Jones v. ScottENR 1 Russ. & My. 255; S. C. 4 Cl. & F. 391.

Shipard v. Lutwidge 8 Ves. 26.

Salter v. Cavanagh 1 Dru. & War. 668.

Shaw v. BorrerENR 1 Keen, 559.

Cockburne v. WrightUNK 6 Ir. Eq. Rep. 1.

Knox v. KellyUNK 6 Ir. Eq. Rep. 279.

Kelly v. Kelly 6 Law. Rec. N. S. 222.

Dillon v. Crusie 3 Ir. Eq.Rep. 70.

WiltonUNK 10 Ir. Eq. Rep. 10.

St. John v. BoughtonENR 9 Sim. 219.

Lord WaterparkENR 13 Sim. 202.

Doe v. Field 2 B. & Adol. 564.

Doe v. EdlinENR 4 Ad. & El. 582.

Mott v. Baxter 7 Ves. 201.

Hughes v. Kelly 3 Dru. & War. 48.

Harrison v. Duigman 2 Dru. & War. 295.

Francis v. GroverUNKENR 10 Jur. 280; S. C. 5 Hare 1.

The Commissionaries of Charitable Donations and Bequests v. WybrantsENRUNK 2 Jones & Lat. 182; S. C. 7 Ir. Eq. Rep. 580.

King v. Denison 1 Ves. & Beam. 273.

Bailey v. Ekins 7 Ves. 323.

Elliott v. MerrymanENR Bar. Chan. Rep. 82; S. C. 2 Atk. 41.

Shepard v. Ledwidge 8 Ves. 26.

Shaw v. Borrer 1 Kee. 577.

Ball v. HarrisENR 4 My. & Cr. 267.

SCott v. JonesENR 4 Cl. & Fin. 383, 384.

AnonymousENR 2 Atk. 15.

Harrison v. Duigman 2 Dr. & W. 295.

Gressly v. Adderly 2 Swanst. 579.

Behen v. Wood Tur. & Russ. 348.

Sharp v. CarterENR 3 P. Wms. 378.

Wrixton v. Vize 3 Dr. & War. 104; S. C. 2 C. & Law. 138.

Bailey v. Ekins 7 Ves. 322.

King v. DenisonENR 1 V. & B. 270.

Francis v. GroverENR 5 Hare, 39.

Shaw. BorrerENR 1 Keen, 577.

Ball v. HarrisENR 4 My. & Cr. 267.

360 GASES IN EQUITY. 1848. Equity Exch. HUNT v. BATEMAN, (Equity Exchequer.) Tars cause came before the Court on exceptions taken, to the Remembrancer's report. The facts of the case, more fully stated in the judgment of the Court, are shortly these: The Rev. Henry Bateman being seised of certain denomination of land, in the introductory part of his will directed that all his justi, debts and funeral expenses should be paid ; and subject to the payment thereof, he devised his real estate to trustees to permit his; wife to receive the rents, &c., until his eldest son should attain his; majority, and then to permit his son to receive the rents, &c., during i his life, with remainder in tail male, &c., with an ultimate devise too' the testator's right heirs. In 1824 a bill was filed in this Court by a judgment creditor of the testator, to raise the amount of his judgment. A receiver was, appointed over the lands, and after several bills of revivor, &c., the lands were subsequently sold under the decree of this Court. A fund remaining in Court, the assignee of a judgment creditor,1 who had obtained a judgment in 1810 against the testator, but who, \ had not proved under the decree in the cause, in 1845 obtained a reference to the Remembrancer to ascertain what was due on foot of his judgment. He was opposed in the office by the assignee for value of an annuitant under the will of the testator. The RememÂÂbrancer by his report found that the judgment had been obtained against the Rev. Henry Bateman in Easter Term 1810 ; that Henry Bateman died in or previous to the year 1821 ; that the judgment was revived against the testator's heir and terretenants, in Easter Term 1838, and was shortly afterwards assigned to Robert Ferguson; and that the judgment was not redocketed purÂÂsuant to the Act 9 G. 4, c. 35. The Remembrancer then found that• the testator had duly made his will, as above stated, and that the annuitant under it had assigned for valuable consideration that annuity to Edward Harnett. He then found that under those circumstances the judgment so assigned to Robert Ferguson was not barred by the Statute of Limitations. No evidence had been given to show any payment of principal or interest at any time on • At the desire of the Profession, immediate publication is given to this case. CASES IN EQUITY. 361 foot of this judgment, nor any acknowledgment to take the case out of the Statute of Limitations. To this report Harnett excepted, insisting that under the circumÂÂstances stated, the Remembrancer ought to have reported that the judgment was barred by the Statute of Limitations ; also that having found by his report that the judgment was not redocketed, pursuant to the Act of 9 G. 4, c. 35, he should not have so found, but according to the evidence, have found that the judgment was not redocketed at any time within five years after the passing of that Act, and therefore should have reported the judgment to be null and void against Harnett ; and further, that the Remembrancer should have found no more than six years' interest due, in any event. Mr. Kane and Mr. Deasy, in support of the exceptions, argued at Argument. much length on several former days, and cited Keane v. Barry (a), Hickson v. Collis (b), Lessee Moffett v. Whittaker (c), O'Kelly v. Bodkin (d), and cases referred to in the judgment of the Court. The Solicitor-General (Mr. Monahan) and Mr. Robert Ferguson, for the report, cited Townshend v. Townshend (e), Beckford v. Wade (f), Cholmondeley v. Clinton (g), Milnes v. Lawley (h), Jones v. Scott (1), Shiphard v. Lutwidge (k), Salter v. Cavanagh (1), Shaw v. Borrer (m), and cases referred to in the judgment of the CHIEF BARON. PIGOT, C. B. In this case, a fund remained in Court after the distribution, among certain reported creditors of the Rev. Henry Bateman, of the produce of a sale under a final decree. On the 26th of June 1845, upon the application of Robert Ferguson, claiming to be a judgment creditor of the Rev. Henry Bateman, who had not proved or claimed under the decree to account in the cause, an order was made, " That he should be at liberty to file a charge at foot of the judgment, and that the Chief or Second Remembrancer should inquire and report whether there was any and what sum due on foot of the said judgment, and to whom ; and to consider whether (a) 8 Ir. Law Rep. 211. (b) 6 Ir. Eq. Rep. 524. (c) Long. & Town. 141. (d) 3 Ir. Eq. Rep. 390. (e) 1 Bro. C. C. 551. W 17 Ves. 87. (g) 2 Jack. & Walk. 175. (h) 4 Price, 103. (i) 1 R1289. & My. 255; S. C. 4 Cl. & F. 391. (k) 8 Ves. 26. (1) 1 Dm, & War. 668. (m) 1 Keen, 559. 46 Judgment. 362 CASES IN EQUITY. 1848. the said judgment was barred or not under the circumstances; the Equity Each, puisne creditors to have notice of proceedings under the order ; the HUNT reference to be at the expense of the said Robert Ferguson ; and if v. there should be any opposition to the proof of the said judgment, BATSMAN. that the consideration of the costs of such opposition should be Judgment. reserved." The officer has found, that upon the judgment which was obtained in Easter Term 1810, upon the bond and warrant of attorney of the Rev. Henry Bateman for the penal sum of 177. 7s. to secure the principal debt of 87. 8s. 3d. the entire penal sum is due for principal and interest on the debt. He further found that the Rev. Henry Bateman, by his will, bearing date 5th of June 1821, devised his freehold lands (comprising the lands sold under the decree) to trustees, subject to the payment of his debts, upon trusts therein mentioned, and among others, to permit his wife Matilda to receive an annuity of 120 a-year out of the lands; that by a deed bearing date the 1 1 th of June 1833, the widow assigned the annuity to Edward Harnett, upon trust to secure a debt due by her to him, and subject thereto upon trust for the widow ; and that in the year 1838, the judgment, after the death of the Rev. Henry Bateman, was revived against his heir and terre-tenants. The Remembrancer then stated, that he did not find that the judgÂÂment was ever redocketed pursuant to the provisions of the 9 G. 4, c. 35. And he found that, under the circumstances set forth in the report, the judgment was not barred by the Statute of Limitations. The judgment creditor was opposed in the office by the assignee of the annuity. That assignee was a party defendant in the cause ; and under the report and final decree in the cause, he has the first claim upon the fund now remaining in Court, of the produce of the sale ; a sum having been reported due to him for arrears of the annuity more than sufficient to exhaust the entire residue of the fund. The questions, therefore, on which we have to decide, arise between a creditor of the testator, and the assignee for value of an annuitant under his will ; and between these parties only. On behalf of the assignee of the annuity it was contended that, as the judgment was not revived or redocketed within five years after the passing of Moore's Act (9 G. 4, c. 35), and as the assignee was a purchaser for valuable consideration of the annuity, the judgment was void as against him. It will not be necessary to consider that question, if the debt secured by the judgment be a debt which, by reason of the will of Henry Bateman, is not affected by the Statute of Limitations. If it be not so affected, then, according to CASES IN EQUITY. 363 the view taken by this Court in Cockburne v. Wright (a), it must at least rank as a simple contract debt, for which by the will provision is made for payment, and if not barred by the statute (3 & 4 W. 4, c. 27), it must, as such, affect the lands in priority to the annuity ; for the annuity, by the will, is charged upon the lands, expressly subject to the debts of the testator. It was further contended, that the revivor of the judgment in 1838 could not be relied on as exempting the judgment from the operation of Moore's Act, because neither the annuitant nor the trustees of the will appeared to have been served with a writ of scire facias. If the debt be preserved from the bar of the statute of Limitations by the effect of the will, this also, and for the same reason, is a...