O'Kelly v Bodkin

• Jurisdiction: Ireland
• Judgment Date: 23 June 1841
• Date: 23 June 1841
• Court: Equity Exchequer (Ireland)

Equity Exch.

O'KELLY

and

BODKIN.

Berrington v. Evans 1 Y. & C. 434.

Sterndale v. HankinsonENR 1 Sim, 393.

Sterndale v. HankinsonENR 1 Sim. 393.

Kealy v. BodkinENR 1 Sau. & Sc. 211.

Plrillipo v. Munnings 2 M. & C. 309.

Foley v. Dumas 1 Smy. 78.

Kealy v. BodkinENR Sau. & Sc. 211.

Barnewall v. Barnewall 3 Ridg. P. C. 35.

Sterndale v. HankinsonENR 1 Sim. 393.

Berrington v. Evans 1 Y. & C. 434.

Lord St. John v. BougtonENR 9 Sim. 219, 223.

Asbee v. ShipleyENR 6 Madd. 296.

Kealy v. BodkinENR 1 Say. & Sc. 211.

Neate v. The Duke of Marlborough 3 M. & C. 407.

p. 417.

Sheppard v. DukeENR 9 Sim. 567.

O'Hara v. Creagh Ante, p. 179.

Sterndale v. HankinsonENR 1 Sim. 393.

Berrington v. Evans 1 Y. & C. 436.

Finch v. The Earl of WinchelseaENR 1 P. Wms. 283.

Brace v. The Duchess of MarlboroughENR 2 P. Wms. 491.

ThompsonENR 9 Mod. 395.

Barnewall v. Barnewall 3 Ridg. P. C. 24.

In re AndersonENR 1 Co. & Al. 1.

D' Arcy v. Chambers 1 Sch. & Lef. 476.

Neate v. The Duke of Malborough 3 M.& K. 417.

Sheppard v. DukeENR 9 Sim. 567.

O'Kelly v. Bodkin 2 Ir. E. R. 372.

390 C*.S.Efi N EQUITY. 1841. Emily Exch. 1840. June 29. Nov. 14. Nov. 20. 1841. Ferib.l 16. p 24. (MELLY V. BODKIN. A June 23. Where a judg- AFTXR the final ,decree in this cause had been pronounced, DruwAef ment has been obtained upon the receiver in the cause of .31,vxray and others v, and Ozer.% a bond in a (which suit tad been instituted to administer the assets of W, Burke penalty con- ditioned for deceased), and who had •t debts een appointed to collect the outstanding the payment due to the personal estate of W. Burke, applied to this Court that, ns of a principal sum with in- such receiver, he might be at liberty to come in before the Rernema terest, the brancer under the decree to account pronounced in this cause on the principal sum is " a sum of 23d of June 1835, and prove the amount due on foot of the judgment money charged upon or paya- obtained as of Easter Term 1808 by W. Burke against John Bodkin ble out of which application was founded upon an affidavit by T. Browne, in which land or rent" within the he stated that up to the month of November 1839, he had not heard of meaning of the 3 & 4 W. 4, c. and was wholly ignorant of the institution of this suit, and of the pro-, 27, s. 42: and ceedings in it. Whereupon it was ordered by the Court that he be at that statute bars the reco- liberty to come in before the Remembrancer and prove the amount 40 very of all on foot of said judgment and obtain a separate report thereunder ; he arrears of in terest thereon, undertaking to take such reference and procure such report at his own which have accrued due expense, as such receiver ; without prejudice to any question as to the more than six claim for the amount of interest on said judgment, having regard to the years next be fore the emu. late Statute of Limitations or otherwise. mencement o a suit institu-f The Remembrancer by his report of the 4th of June 1840, found that ted after the W. Burke in Easter Term 1808, obtained a judgment in the Common 31st of Decem- ber 1833, to the sum Pleas against John Bodkin, the father of the defendant, for e of enforce pay- 3600, besides costs; under and by virtue of the bond and warrant of ment thereof out of land, or J Bodkin, dated the 6th of March 1808 for the sum of 3600, conditioned rent ; the case being with- for the payment of 1800 with legal interest thereon :--that in Easter not in any of the Term 1826 the judgment was duly revived by W. Burke;-and was re' exceptions mentioned in docketted on the 24th of June 1833. the 42nd sec- That several payments were made to W. Burke in his lifetime, in part tion. Semble :- discharge of the sum due on foot of the judgment for principal, interest That the sta- is a sim- and costs ; amounting in the whole to 548. 12s. 5d.: and that there tute ilar bar to the recovery of interest thereon by a proceeding against the person or personal chattels of the debtor. A creditor who does not come in regularly to prove his demand under the decree to account in a creditors' suit, but obtains an order for liberty to file a charge and obtain a separate report at his own expense, upon an affidavit stating that he was ignorant of the existence of the suit until after the decree to account was pronounced and the report thereunder made, cannot rely on the suit as being his from the beginning, so as thereby to avoid the bar of the 3 & 4 W. 4. c. 27, s. 42. CASES` IN E9t1Dir. 391 was then chid on foot of the judgment, for principal and interest (the interest exceeding the principal), the amount of the penalty, being 3323'. Is. 9d., after giving credit for the sum of 548. 12S. 6d.: and for costs, the sum of 42. 8s. 3d. But that it was insisted on the part of the defendant, that inasmuch as no claim was made to prove said'judgment in this cause, nntil after the pronouncing of the final decree, no interest On the princi= pal sum secured thereby should be allowed or reported as a charge upon the lands in the pleadings mentioned, save so much as accrued due during the six years before the 12th day of March 1840, being the date of the filing of the charge On- foot of said judgment ; which` question;. being niatter° of difficulty; the Remembrancer referred to the decision= of the Court. The original' bill was filed on the 28th of October 1832i, against Dominick Bodkin, W. Burke and others ; but W. Burke never appeared in the cause or was served with a subpcona, and his name waraftervratets struck out of the bill. By the report under the decree to account in this cause., the Remelt= brancer reported that he did not find that J. Bodkin died possessed of any personal estate, no evidence thereof having been laid before him. Mr. Blake, Q. C., for the judgment creditor, now moved that the special point in the report be ruled' in his favour. Upon the argument' of the exceptions in this case,* the Court held' that a: creditor coming in at the proper time, and proving his demand under' the decree in this cause, was not affected by the provisions of the 3 & 4 W. 4, c. 27, inasmuch as' the suit was instituted prior to the passing of that act. The first questionin the present case is' whether a creditor who has proved his demand under this decree, not' in the regular course of the proceedings, but pursuant to the leave of the Court for that purpose given, is not in the same shy. ation. Bennington. v. Evans (a) does not decide that question. There the' Court refused to permit the judgment creditor to prove his demand under the decree ; here he has been permitted to do so, and has obtained` a report finding that the full amount of the penalty of the judgment still remains dim and unpaid to him. In Berrington v. Evans, the Courtdid not determine what would be the effect of the creditor proving his. de= mand under the decree.--EPENNErATHEn, B. j' They did so in-substance. The question there was, whether the whole demand of the creditor was barred.or not. The only thing relied on to take the case out of the operation= of the statute was the pendency of the suit ; but' the Court: determined that inasmuch as the creditor stated that he war not aware of the institution of the snit until after the final decree was prenbunce0 (a) 1 Y. & C. 434. • 2 Ir. Eq. Rep. 36r. t Solna. 1841. Equity Exch. O'KELLY 17. BODKIN. 392 CASES IN EQUITY. he could not in any wise consider that suit as his own : and being of that opinion the Court properly refused-to allow him to go before the Officer and prove his demand.]-That case goes much further ; for the Court said that since the passing of the 3 & 4 W. 4, c. 27, the pendency of a suit did not take the case out of the operation of that statute. In the opinion of Lord Abinger, Sterndale v. Hankinson (a) is no longer to be considered as law. [PENNEPATIIER, B. Such an opinion may have been thrown out by the Chief Baron, but it was not necessary for the decision of the case, and I do not think that it was fully considered. In so far as Berrington v. Evans overrules Sterndale v. Hankinson, I have no hesitation in saying that it is wrong : for I have the judgment of this Court upon the ruling of the exceptions in this case, determining that Sterndale v. Hankinson is law notwithstanding the 3 & 4 W. 4, c. 27. The quesÂÂtion as to the amount of interest recoverable on this judgment is a diffiÂÂcult one ; therefore let the case stand for argument before the full Court.] 1840. Nov. 14. The case case now came on to be argued, before the full Court. Mr. Corballis for the judgment creditor, argued that the Court having permitted the creditor to go before the Officer and prove his demand under the decree in this cause, they thereby decided that the suit was one which the creditor had a right to consider as having been instituted from the beginning, for his benefit ; and therefore that the case was withÂÂin the principle of Sterndale v. Hankinson (b).-[PENNEFATHER, B. The Court only decided that there being a fund in Court, the creditor had a right to come in to ascertain whether there was any thing due to him, properly payable out of that fund. But we by no means decided how much was payable to the creditor.]-Then the judgment creditor claims the full amount of the judgment upon 'two grounds : first, that a judgÂÂment is not a charge upon land, and, therefore, not within the operation of the act ; and secondly, that if it be a charge upon land, it is a charge for the full amount of it ; and upon that sum the creditor does not claim interest. Kealy v. Bodkin (c) is an authority for both positions. Mr. Monahan, Q. C., for the defendant J. D. Bodkin, the inheritor, opÂÂposed the motion, and also moved that the special point be ruled in his favour. The simple question in this case is, whether a judgment upon a bond in a penal sum for securing the payment of a principal sum with interest, is or (a) 1 Sim. 393. (c) 1 San. & Sc. 211. (6) 1 Sim. 393. CASES IN EQUITY...