Stewart v Cottingham and Others

• Jurisdiction: Ireland
• Judgment Date: 02 May 1844
• Date: 02 May 1844
• Court: Rolls Court (Ireland)

(In the Rolls.)

Stewart

and

Cottingham and others.

Rolls.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

In 1796, J. C. confessed a judgment for £400: in 1823, it was revived against his heir and tertenants; in 1838, it was again revived, and the revival docketted under the 9 G. 4, c. 35; but it was not revived or re-docketted within five years after the passing of that Act—i.e. from 27th June 1828 to 27th June 1833.—In 1839, the heir executed a mortgage:—Held, that as the original judgment was obtained more than twenty years before the passing of 9 G. 4, c. 35, and was not revived or redocketted within five years after the passing there—of, it was null and void as against the mortgage.

That neither the revival in 1823 nor that in 1838 could be considered as a “judgment recovered and entered” within the meaning of the 9 G. 4, c. 35; the judgment thereby intended being one which may be revived or re-docketted-i.e., original judgment.

The decision in Farran v. Ottiwell, Dom. Proc. 5 Ir. Law Rep. 487, does not establish that a judgment of revivor has all the properties of an original judgment, much less that it is a judgment within the meaning of the 9 G. 4, c. 35.

Suit for foreclosure, &c.—The mortgage was dated the 10th of June 1839, and was made by the defendant to the plaintiff to secure the sum of £5000 with interest.

The title of the mortgagor was as heir of the Rev. James Cottingham, by whom a judgment for £400, on bond conditioned for payment of £200 and interest, was confessed in the Court of King's Bench in or as of Easte Term 1796. After the decease of the conuzor, this judgment was revived against his heir, the defendant, and the tertenants, in 1823; and it was afterwards duly assigned to the Rev. Wm. N. Guinness and Wm. C. Beatty, Doctor of Medicine, who were defendants in this cause. The interest on the principal sum was regularly paid down to and for the 24th of October 1841, but the judgment was not revived or re-docketted within five years next after the passing of the 9 G. 4, c. 35 (Moore's Act)—i.e. between the 27th of June 1828 and the 27th of June 1833; it was, however, revived in 1838, and a docket of the revival was then entered.

Under an order of reference to the Master to report the order and priority of the several charges and encumbrances affecting the lands, he reported that the before-mentioned judgment had priority to the plaintiff's mortgage.

The plaintiff excepted to the report, and now moved that it might be varied, and that it might be declared that the mortgage had priority to the judgment, and that the judgment was null and void as against the mortgage; inasmuch as the judgment was entered and recovered twenty years and upwards next before the passing of a certain Act of Parliament, made, &c. (9 G. 4, c. 35), and was not revived or re-docketted in the manner by said Act directed, within five years from the passing thereof; and inasmuch as it did not appear that the said judgment was duly or at all revived or re-docketted according to the provisions of the said Act, within five years from the passing thereof; and inasmuch as the said judgment was not duly revived or re-docketted within five years from the passing of the said Act.

Mr. Ross S. Moore, and Mr. Wm. Brooke, Q. C., for the plaintiff.—The question in this case turns on the construction of the first three sections of the 9 G. 4, c. 35.* The first section relates to judgments “entered or recovered” after the passing of that Act (27th June 1828); the second, to judgments “entered or recovered” within twenty years; and the third, to judgments “entered or recovered” twenty years or

upwards next before that date. We contend that the judgment in question having been entered and recovered in the year 1796, is within the third section; and therefore null and void as against our mortgage, inasmuch as it was not revived or re-docketted pursuant to the provisions of the Act within five years next after 27th of June 1828. This must be admitted, unless either the judgment of revivor in 1838, or that in 1823, is to be considered as a judgment “entered or recovered” within the meaning of the first or second section.

Throughout the Act, a judgment “entered or recovered” is distinguished from a judgment of revivor, which is therein called “a revival.” This was particularly noticed by Perrin, J., in his judgment in Ottiwell v. Farran (a): and whether we consider the language of the Act, or the nature of the grievance which it was intended to redress, it seems to us impossible to avoid the conclusion that a judgment of revivor is not a judgment “entered or recovered” within the meaning of this Act of Parliament; and that the judgment thereby intended is an original judgment and none other. By the first section it is enacted, that “All judgments which shall, after the passing of this Act, be entered or recovered * * * * shall, after the expiration of twenty years from the date of the entry or recovery thereof, be null and void as against purchasers for valuable consideration, unless the same shall be duly revived or re-docketted in the manner hereinafter directed,” &c. None other than an original judgment can be revived; and it is plain, from the schedules to the Act and the forms there given, that none other can be re-docketted in the manner thereby directed.

It is material to observe that no entry of a revival is ever added to the record, or entry on the books, of an original judgment; but, on the other hand, if the debt be paid, and satisfaction be entered, such entry is always upon the original judgment, and never upon the judgment of revivor.—Ancient judgments appearing unsatisfied on record (although the debts may have been paid within a month after their entry) created—and but for the 9 G. 4, as it is conceived, would still create—an almost insuperable bar to a sale of the lands once charged by them. A search for revivals from the date of the original judgment to the moment of the execution of the conveyance—a period of perhaps fifty or a hundred years—should not only be a very costly affair, but altogether uncertain and unsatisfactory to the purchaser: for although the judgment may never have been revived, the charge created by it may still have been kept alive by secret payments on account. To remedy and prevent the mischiefs to both vendors and purchasers arising out of such a state of the law, is the object of this Act; and it is plain that as to the particular class of judgments, the existing mischiefs of which especially called for a remedy-

namely, judgments entered or recovered twenty years or upwards before the Act, and appearing unsatisfied on record, the remedy and protection which the Legislature undoubtedly intended to give to purchasers for valuable consideration must be, in a great measure, if not altogether defeated, by construing the words “judgment entered or recovered” to include within their meaning a judgment of revivor as well as an original judgment.

It will, no doubt, be said that the proceeding in Scire facias is in the nature of an action; that the defendant may plead thereto, and that the award then made by the Court is to be considered as an original judgment. But to this it may be answered, in the first place, that...