Mac Carthy v Fermoy

• Jurisdiction: Ireland
• Judgment Date: 16 April 1891
• Date: 16 April 1891
• Court: Chancery Division (Ireland)

Chancery Division.

MAC CARTHY

and

FERMOY.

Fuller v. RedmanENR 26 Beav. 600.

Simpson v. MorleyENR 2 K. & J. 71.

Van Gheluive v. Nerinckx 21 Ch. Div. 189.

Hickey v. HayterENR 6 T. R. 384.

Steel v. RorkeUNK 1 B. & P. 307.

Revell v. Revell 4 Ir. Ch. R. 436; 5 Ir. Ch. R.

O'Brien v. Scott 11 Ir. Eq. R. 63.

Turner v. Waller 12 W. R. 337.

Kemp v. Warrington 1 Q. B. 355.

In re Perrin 2 Dr. & W. 147.

In re Perrin 2 Dr. & W. 147.

Burke v. KillikellyUNK 1 Ir. Ch. Rep. 1.

Fuller v. RedmanENR 26 Beav. 600.

Evans v. Williams 2 Dr. & S. 324.

Judgment — Registration — Re-registration — Priority — Administration of personal estate — 3 Geo. 2 (Ir.), c. 7, ss. 1 — 3 — 9 Geo. 4, c. 35 — 7 & 8 Vict. c. 90, ss. 1, 2, 6, 7.

Vol- XXVII.] CHANCERY DIVISION. 27:5 MAC CARTHY v. FERMOY. Judgment-Registration-Re-registration-Priority-Administration of perÂsonal estate-3 Geo. 2 (Ir.), c. 7, 8s. 1-3-9 Geo. 4, c. 35-7 & 8 Vict. c. 90, 88. 1, 2, 6, 7. The registration of a judgment under 7 & 8 Viet. o. 90 is equivalent to docketing under 3 Geo. 2 (Ir.), o. 7. Re-registration is unnecessary for the preservation of the right of a judg ment creditor to priority in the administration of personal estate, as there is no enactment applying to Ireland requiring such re-registration. ADJOURNED SUMMONS. This suit was commenced in 1875, in the Court of Chancery, for the administration of the estate of the Right Hon. Edmond Burke, Baron Fermoy, who had died on the 17th September, 1874, and a decree for administration was made on the 18th June, 1875. The Norwich Union Life Insurance Society were assignees of a judgment for £2000 and interest recovered against Lord Fermoy by one Maurice Lane, and entered on the Roll of the Queen's Bench, on the 13th January, 1844. The said judgÂment was assigned to Edward Field, in trust for the society, by deed dated the 26th May, 1870. The judgment was registered on the 14th July, 1860, under the 7 & 8 Vict. c. 90, and reÂregistered on the 13th June, 1865. It was not again re-registered. The Norwich Union Life Insurance Society claimed that the judgment was entitled to priority over the specialty and simple contract creditors as against the personal estate of Lord Fermoy. Mr. Ttcigg,Q.C., and Mr. Henry Maxwell, for the claimants : The Norwich Union Insurance Society is entitled to priority over the specialty and simple contract creditors of Lord Fermoy in respect of their judgment. The 23 & 24 Viet. c. 38 which requires re-registration every five years is expressly excluded from applying to Ireland. The 3 Geo. 2 (Ir.) c. 7 is the only Act which expressly protects heirs, executors, and administrators, in the Vol.. XXVII. X Serjeant Jellett, Q. C. and Mr. Sugrue, for the plaintiff:- (1) 26 Beay. 600. (2) 2 K. & J. 71. VOL. XXVII.] CHANCERY DIVISION. 277 A judgment not re-registered within five years of the testator's V.-e. death, as this was not, is levelled. If this were an English case 1M91. there could be no question : Van Gheluive v. Nerinckx (1). The 31" C&RT a I v. provisions of the 23 & 24 Vict. c. 38 as to re-registration do not F IiitlE0Y. apply to Ireland, because re-registration in Ireland was already provided for by 7 & 8 Vict. c. 90. The objects of the 4 & 5 William & Mary, c. 20, in England, and of the 3 Geo. 2 (Ir.), o. 7, are identical, namely, to provide one office where heirs, executors and administrators might find judgments recovered against their testators and intestates. The title of 3 Geo. 2 (Ir.), c. 7, is " An Act for the better Discovery of Judgments," &o. That Act remained in force until the 13th August, 1878, when it was repealed by the Statute Law Revision (Ireland) Act of that year, which contains a saving of existing rights. In Hickey v. Hayter (2) it was held that a judgment debt not docketed under 4 & 5 William & Mary, c. 23, is put on a level with simple contract debts, and such judgments could not be pleaded to an action on simple contract : Steel v. Rorke (3). There is a distinction between the 2 & 3 Vict. o. 11, and 7 & 8 Vict. c. 90. The former Act did not provide for the continuation of the old docketing books under 4 & 5 William & Mary, c. 20, whereas the 7 & 8 Vict. c. 90 did provide for the transfer of the books kept under 3 Geo. 2 (Ir.), c. 7, to the new office in which all judgments were in future to be registered. The 7 & 8 Vict. c. 90 requires re-registration every twenty years, so as to preserve the priority of judgments as against purchasers, mortgagees, and creditors. The word " creditors " includes creditors claiming against the personal estate in the administration of assets. The same meaning must be given to the word " creditors" in 13 & 14 Vict. c. 29, and therefore re-registration every five years is now necessary. It has never been the practice to carry searches for judgments back for more than five years. [Counsel also cited Revell v. Revell (4) ; O'Brien v. Scott (5) ; (1) 21 Ch. Div. 189. (4) 4 Ir. Ch. R. 436; 5 Ir. Ch. R. (2) 6 T. R. 384. (5) 11 Ir. Eq. R. 63. [284. (3) 1 B. & P. 307. 278 LAW REPORTS (IRELAND). [L. R. I. V.-C. Turner v. Waller (1) ; Kemp v. Warrington (2) ; In re Perrin (3) ; 1891. Burke v. Killikellg (4).] MAC CARTHY V. Fmtuor. THE VICE-CHANCELLOR :- April 16. The question brought before me for decision has not been correctly stated in the memorandum, in which it is put as whether the judgment debt of the Norwich Union Insurance Company has lost its priority against the personal estate of Lord Fermoy, because it was not re-registered within five years from the date of his death. If this were the question it should, without doubt, be decided in favour of the Company, as the right of the judgment creditor arises on the death of the conusor, and if it were then entitled to rank as a judgment debt, no omission to re-register afterwards could deprive it of its priority. The real question, and that which was argued, is whether it lost its priority by the omission to re-register it within five years next preceding the death of Lord Fermoy. The dates are as follows :-The judgment was entered on the 13th January, 1844 ; it was registered on the 14th July, 1860, and re-registered on the 13th June, 1865 ; but was not again re-registered ; and Lord Fermoy died on the 17th September, 1874. It was, therefore, not re-registered within five years next preceding his death. The question turns on the operation of the several Irish Acts as to the docketing and registering of judgments. The Act of 3 Geo. 2 (Ir.), c. 7, is the first Act bearing on the question. The object of that Act was two-fold, first to protect purÂchasers and mortgagees, and secondly to protect heirs, executors, and administrators in the administration of the estates of their ancestors, testators, and intestates. It is essential to bear these two distinct objects in mind through the consideration of the entire course of legislation on the subject. The first section provides for the due docketing of all judgments. Sect. 2 enacts, first, that judgments, as against purchasers or mortgagees, should be in consideration of law judgments, so as to charge the lands ; only from such times as they (1) 12 W. R. 337. (3) 2 Dr. & W. 147. (2) 1 Q. B. 355. (4) 1 Ir. Ch. 1. Vet. XXVII.] CHANCERY DIVISION. 279 should be brought into the proper office to be docketed ; and 77.- secondly, that they should not have any preference against heirs, 1t491. MAC CARTHY executors, or administrators, in their administration...