Re ARTHUR PERRIN, a Bankrupt. [Bankruptcy.]

• Jurisdiction: Ireland
• Judgment Date: 02 February 1842
• Date: 02 February 1842
• Court: Bankruptcy Court (Ireland)

Bankruptcy.

In re ARTHUR PERRIN, a Bankrupt.

Estates Vol. 2, p. 406.

Coleman v. Croker 1 Ves. jun. 160.

Lessee of Assignee of Byrne v. Ryan 4 Law Rec., N S., 263.

Egan v. MulhollandUNK 2 Ir. Eq. Rep. 454.

Act 5 & 6 W. 4, c. 55.

Littleson v. Brierly 1 Jones, 606, 610.

Doe v. EransENR 1 C. & M. 450.

13 Edw. 1, c. 18.

Inst. p. 396.

Dalton on Sheriffs p. 137.

Fleetwood's caseENR 8 Coke, 174.

1st Nov. 1840.

1st Nov. 1841.

Whitmore v. RobertsonENR 8 Mees. & Wels. 463.

Colman v. Croke 1 Ves. jun. 160.

6 Bac. Ab. 380.

Godson v. SanctuaryENR 2 B. & Ad. 255.

Vol 1, p. 89.

Viner Vol. 20, p. 525.

Foster's caseENR 1 Coke, 119.

Hayden v. CarrollENR 3 Ridg. 599.

Read v. DavisUNK 3 Ir. Eq. Rep. 153.

Whitmore and others, assignees v. Robertson 8 Mee. & W. 463.

Ex parte Varnish 1 Mont. Dea. & De Gex, 514.

CASES IN EQUITY. 89 1842. Bankruptcy. Coratra MR. COMMISSIORRR MACAW. In re ARTHUR PERRIN, a Bankrupt. (Bankruptcy.) Trio case came before the Court on charge and discharge. The charge stated that the bankrupt Arthur Perrin, having (before his bankruptcy) been indebted to one Amelia Nelson in the sum of 11518, executed to her his bond and warrant of attorney for confessing judgment on the 10th November 1837. Judgment was entered on this bond in Michaelmas Term 1837. Upon the occasion of the marriage of Amelia Nelson with one Thomas Jeffrey Robertson, this judgment was assigned to two trustees, Charles Robertson and William M'Dermott, upon certain trusts contained in the deed of settlement of 6th March 1838. The trustees charged that the judgment upon which they claimed having been entered up more than one year before the bankruptcy, they were entitled, under the provisions of the 3 & 4 Vic. c. 105, as against the simplecontract creditors of the bankrupt, and all puisne judgment creÂditors, to a special lien and charge upon the bankrupt's estate, freehold, leasehold, &c., and prayed that there might be a sale thereof under the direction of the Court. The assignee filed a discharge to this, and insisted that the trustees, as such judgment creditors, were not entitled to have their judgments made a special lien and charge upon the freehold and chattels real of the bankrupt under the provisions of that act, and in this way the question was raised. Mr. Dwyer, for the judgment creditors.-First, under the law as it present stands, judgments bind chattels real equally with freehold inteÂrest; and secondly, judgments entered up prior to 1st November 1840, and which should be thereafter entered up, are to operate as a charge upon all such freehold and leasehold estates, and have priority in bankÂruptcy, provided such judgment already entered up, or which should be entered up, be so entered up one year prior to the bankruptcy. If the Court be satisfied on the latter point, the former would be established. The judgment under which the parties claim in the present case was entered up in 1837. They were within the act, and also one year before the bankruptcy of Perrin. The object of the act by its title was, " To extend the remedies of creditors against the property of debtors, "and for the further amendment of the law, and the better advancement 90 CASES IN EQUITY. "of justice in Ireland." The 22nd section, in making judgments a specific lien upon all leasehold and freehold property, necessarily gave to such lien priority in bankruptcy, as a mortgagee or party having an equitable charge would have ; and the first part of the 22nd section clearly making judgments already entered up a specific lien, conÂferred upon such all the qualities and priorities of such. But to prevent any doubt in cases of bankruptcy, the 126th section of the 6 W. 4, c. 14, having been construed as depriving judgment creditors of such priority, the clause in the 22nd section in the body of it conÂtained what would, taken with the effect of the previous part of the section, amount to an express enactment ; otherwise there was no meanÂing in words, and no object in introducing those words into the clause. "Nor shall such charge (that is, the charge created by the preceding "part of the section) operate to give the judgment creditor any prefe rence in case of the bankruptcy of the person against whom judgment "shall have been entered, unless said judgment shall have been entered " up one year at least before the bankruptcy." Then followed a provision, making the object of the above more plain, and in limitation, as it would appear, to the extent of the meaning of the words in the section and other parts of the act, "Provided also that as regards purchasers, mort gagees or creditors who shall have become such before the time apÂ" pointed for the commencement of this act, such judgment shall not "affect lands, tenements or hereditaments"-(the Court will observe, not using the more ample description of property previously enumerated in the section)-" otherwise than as same would have been affected by such " judgment if this act had not passed." The plain inference of this is, that if the judgment creditor claimed on a judgment entered up one year prior to the bankruptcy, that except as to purchasers, mortgagees or creditors-that is, parties having recorded or registered liens or executions issued against lands or chattels-such judgment creditor was to have priority in bankruptcy. And it appeared further, that the Legislature, to guard against collusive judgments in bankruptcy, annexed the qualifiÂcation, that such judgments claiming priority should be entered up one year before the bankruptcy. The 95th section of the 6 W. 4, c. 14, provides, that unless executions were executed or levied two months before thicommission, they should be void against the creditors. In the 3 & 4 Vic. c. 105, s. 22, the provision as to judgments claiming priority is, that they should be entered up one year prior to the bankruptcy. The object of the act is greatly to enlarge the powers of judgment creditors over every species of property of the debtor, before exempt from their effect; and why should it be argued that judgments in the case of bankÂruptcy are to be excluded ? They are recorded liens : and all perÂsons dealing with traders and others ascertain their existence, as well as mortgages ; and the provision as to the year of existence prior to the bankruptcy, afforded a full and equitable protection. In Sugden on CASES IN EQUITY. 9/ Estates (a), the act is thus commented upon--" But now the late act, "in making the judgment debts an actual charge on the estate, proÂ" vides that such charge shall not operate to give the judgment creditor "any preference in case of the bankruptcy of the person against whom "such judgment shall have been entered up, unless such judgment shall "have been entered up one year at least before the bankruptcy; in "that case, therefore, it will still operate as a judgment, and, consequently, "should now be searched for against a bankrupt, where the sale is by "his assignees." I contend, that the reading which this distinguished author gives to the act, as to priority in bankruptcy, is the correct one. There is another point connected with this branch of the argument,-that in claiming the priority, it should be granted, as in the case of legal and equitable mortgagees, and parties having charges, that is, to the exclusion of simple contract creditors not having obtained judgment or execution for their debts. The words in the proviso are, "purchasers, mortgagees, or creditors," making "creditors" co-extensive and synoÂnimous with "mortgagees." They are words ejusdem generis ; and in other acts, when used in the same order as in this act, they should be held to mean the same class of creditors ; Coleman v. Croker (b) is an authority as to the meaning to be attached to the word creditor so used. That was a case arising upon the construction of the act of Etiz. against fraudulent conveyances. A bill was filed by the committee of a lunatic to set aside a voluntary settlement for fraud; the Lord Chancellor said-" As to fraud, there must be some creditor to complain of that, and "he must put himself into a situation to complain by getting judgment "for his debt, and stating that by the settlement he is defrauded." Lessee of Assignee of Byrne v. Ryan (c) may also be relied on as an authority upon the same subject. But independent of the authority of these cases, from the language of the act, 3 & 4 Vic., c. 105, it is clear that the object of the Legislature was as between creditors whose demand affected the real estate and chattels real of their debtor ; the act should not alter their relative rights and priorities. On the second point controverted by the discharge, viz., judgments binding the chattels real of the bankrupt, subject to the provisons in the 22nd section, the wording of that section is so ample and unequivocal, that whatever doubt might have existed before could not exist at present. In Egan v. Mulholland (d), it has been held by the Master of the Rolls, that under the Sheriffs' Act (e) a receiver would be extended over chattels real equally with freehold. In the case of Littleson v. Brierly (f), the Court of Exchequer have held differently ; but at present both Courts hold that receivers should be extended over the chattels real of the debtor (a) Vol. 2, p. 406. (b) 1 Yes. jun. 160. (c) 4 Law Ree., N. S., 263. (d) 2 Ir. Eq. Rep. 454. (e) 5 & 6 W. 4, a. 55. I Jones, 606, 610. 92 CASES IN EQUITY. equally with his freehold lands. The words in the 22nd section are clear and intelligible-." shall operate as a charge upon all /ands, tenements, "rectories, advowsons, tithes, rents and hereditaments, including lands "and hereditaments of copyhold, tenure of, or to which such person shall "at the time of entering up such judgment be seized, possessed or "entitled to any estate or interest whatever at law or in equity," &c. Under the Statute of Frauds, and the existing law, chattels real had been...