National Bank v Cullen

• Jurisdiction: England & Wales
• Judgment Date: 01 January 1894
• Court: Queen's Bench Division
• Date: 01 January 1894

The National Bank (Limited)

and

Cullen.

-defendant desires to pay the debt without defending, namely, the Q. B. Div. 1894, liability to pay the defendant's costs of a motion to set aside thewrit. "We will give the plaintiff leave to amend the writ, but he HARBISON must pay the defendant three guineas costs of this motion. M'LARNON. Solicitor for the plaintiff : Thomas J. 8. Harrison. Solicitor for the defendant: John Malone. G. G. THE NATIONAL BANK (LIMITED) V. CULLEN (1). Am* 1894. PracticeLeave to issue executionJudgment more than six years oldOrder Feb. 16. XL1L, Rules 24 and 25Application ex parte. Leave will not be given, in the absence of special circumstances, to issue execution on a judgment more than six years old, without notice to the party liable. ON the 26th November, 1885, the plaintiffs recovered a judgment against the defendant for £85 15s., and £5 16s costs, making together £91 lis. The plaintiffs did not issue execution because the defendant had not any goods or chattels which could be seized. On the 8th Dec, 1893, an application was made to Gibson, J., ex parte for leave to issue execution, which was refused, and the plaintiffs, on the 12th January, 1894, appealed to the Court of Appeal from that order, and the appeal was refused, on the ground that the affidavit on which the motion was grounded contained no explanation of the delay. On the 6th February, 1894, a second application was made to the Queen's Bench, grounded on the affidavit of John Chamney, the manager of the branch of the plaintiff's Bank at Portarlington, in which he stated that the sum of £91 lis. was still due, and £29 9s.4rf. for interest on the judgment, and that there had been no change of parties since the date of the judgment. He also stated that he had recently ascertained that the defendant was in possession of a (1) Before "WALKEB, C, PALLES, C.B., and FIIZGIBBON and BABRT, L.JJ. large amount of chattel property, consisting of farming stock, and furniture, and that, from his own knowledge, he believed that if the defendant had notice that a seizure of his goods by the sheriff was about to take place he would take steps at once to place his goods out of the reach of the sheriff. The application was refused by Gibson, J., and from that order the plaintiffs appealed. Herbert Wilson, in support of the appeal: I submit that the application should be granted for two reasons. First, because it is the practice in England to grant these applications ex parte before a Master, and it is not necessary to show any special circumstances: Annual Practice, 794. I admit that before the Judicature Act it would have been necessary to show special circumstances on an application ex parte to enter a suggestion on the record. Secondly, because there are special circumstances in this case, which should induce the Court to make the order without notice to the defendant, namely, it is in evidence that if the defendant gets notice of this application he will make away with his goods. "WALKER, C.: W e do not feel justified in interfering with the order of Gibson, J., in this case. We have already decided on the motion of Mr. Wilson, of the 12th January, that on the facts before us we should not be justified in making the order on an ex parte application. His affidavit then stated no special reason for the delay of eight years, and the question now isHas Mr. Wilson brought himself within the rule that he is entitled to issue execution without notice to the defendant ? All that is alleged is that he has ascertained that the defendant has now got chattels available to satisfy the judgment. In other words, that he has goods now, and that the defendant would, if he received notice,, place his goods out of reach of the sheriff. There may be, in many cases, circumstances which would enable, or authorise, a judge to make the order after six years have elapsed, as, for example, if the defendant was making away with his goods, or was calling an auction; but in this case the object seems to be toenable the plaintiffs to put in an execution before the defendant Appeal. can exercise ownership over the property. 1894...