1841. O'KELLY v. BODKIN. was then due on foot of the judgment, for principal and interest (the interest exceeding the principal), the amount of the penalty, being £3323. Equity Exch. 1s. 9d., after giving credit for the sum of £548. 12s. 5d.: 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, until after the pronouncing of the final decree, no interest on the principal 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 matter of difficulty, the Remembrancer referred to the decision of the Court. The original bill was filed on the 28th of October 1832, against John Dominick Bodkin, W. Burke and others; but W. Burke never appeared in the cause or was served with a subpoena, and his name was afterwards struck out of the bill. By the report under the decree to account in this cause, the Remembrancer 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 question in 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 situation. Berrington 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 due and unpaid to him. In Berrington v. Evans, the Court did not determine what would be the effect of the creditor proving his demand under the decree.-[PENNEFATHER, B.† 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 was not aware of the institution of the suit until after the final deeree was pronounced, 1840. June 29. 1841. O'KELLY v. he could not in any wise consider that suit as his own: and being of that Equity Exch. 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. BODKIN. 1840. Νου. 14. [PENNEFATHER, 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 question as to the amount of interest recoverable on this judgment is a difficult one; therefore let the case stand for argument before the full Court.] 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 within 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 judgment 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 Kealy v. Bodkin (c) is an authority for both positions. Mr. Monahan, Q. C., for the defendant J. D. Bodkin, the inheritor, opposed 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 is not within the operation of the 3 & 4 W. 4, c. 27, s. 42. The present Master of the Rolls has, in Kealy v. Bodkin, decided that it is not; but, notwithstanding that decision, we contend that it is. The previous sections of that act are conversant about land and rent; the 40th section is the first in which charges upon land or rent are mentioned. It is plain, from that section, that whether a judgment be in its nature a charge upon land or not, the Legislature treats it as such for the purposes of the act. The words, "secured by judgment or otherwise charged upon or payable out of land," are conclusive of their meaning. Then construing the 42nd section by the 40th, it is manifest that the general phrase," any sum of money charged upon or payable out of any land," in the 42nd section, includes within it the particular case of "any sum of money secured by judgment ;" and the 42nd section may be read in the present case as if those latter words were substituted for the former, The enactment would then run thus :-" No arrears of interest in respect "of any sum of money secured by judgment shall be recovered but within "six years after the same shall have become due ;" and the question is, what is the sum of money secured by the judgment? The act does not legislate with respect to interest on the security, but on the sum secured thereby. What is that sum? It is the principal sum mentioned in the bond upon which the judgment has been obtained. The penalty of the bond is but a security for the re-payment of that principal sum, with interest thereon; and the judgment follows the nature of the obligation. The universal practice of the Courts, and the understanding of mankind, is to consider the judgment as a security for the principal sum. Prior to the 3 & 4 Vic. c. 105, interest was not payable upon the sum for which a judgment had been recovered without a contract for that purpose. That act does not relate to judgments upon bonds in penal sums with warrants of attorney; but it shews that if, as is contended, the sum secured by the judgment be the sum for which it has been obtained, subject to be reduced to the amount of the principal sum and the interest then due, a payment of interest must be a payment of part of the sum for which the judgment has been recovered, and, therefore, that no more than the amount of the judgment, as reduced by such payment, could be thenceforward recovered on foot of it; which is contrary to every day's practice. As to the difficulties suggested by the Master of the Rolls, that this inconsistency would arise from the construction of the act now submitted to the Court, viz., that the creditor may recover twenty years' arrears of interest by proceeding on his judgment against the chattels personal or the person of the debtor-although he can only recover six years' arrears of interest out of land, the same inconsistency will arise in the case of a mortgage, which is expressly within the operation of the 42nd section. The only construction by which these inconsistencies may be avoided is, by holding that the 42nd section applies to 1841. Equity Exch. O'KELLY v. BODKIN. 1841. Equity Exch. O'KELLY v. BODKIN. all actions and suits brought to recover interest upon any sum of money which is or may be charged upon or payable out of land; whether by such action or suit it is sought to raise that interest out of the real or personal estate of the debtor. This construction is fortified by the case of Hodgens v. Kelly, in the Queen's Bench, which is not in print. It was a scire facias upon a judgment more than twenty years old, against the conusor of the judgment. The defendant pleaded the 3 & 4 W. 4, c. 27, s. 40. The plaintiff replied, that within twenty years before the issuing of the scire facias, he had caused another writ of scire facias to be issued against the conusor upon the same judgment, and that certain proceedings, but not to judgment, were had upon that writ. The defendant demurred. It was argued for the plaintiff, that as the issuing of the former writ of scire facias was sufficient to save the bar of the 8 G. 1, c. 4, and as the Court might award execution against the person or chattels personal of the conusor, the 3 & 4 W. 4, c. 27, s. 40, was no bar to the action: but the Court held that it was, and gave judgment for the defendant.-[BRADY, C. B. The 42nd section does not say that no interest shall be recovered out of land; but, generally, that no interest shall be recovered but within six years after the same shall have become due.]-So in Phillipo v. Munnings (a), it seems to have been admitted, that a legacy payable out of personal estate was within the 40th section. Bruen v. Nolan, in which this Court held that in an action of covenant by a lessor against his lessee, no more than six years' arrears of rent could be recovered; and Foley v. Dumas (b), in which the Court of Common Pleas held that no more than six years' arrears of an annuity charged upon land, and collaterally secured by a judgment against the defendant, could be recovered on foot of that judg ment, are authorities in support of this view of the case. It is, however, unnecessary to decide that question at present; for the entire fund in Court is the produce of the real estate of the conusor, and the Remembrancer does not find that he died possessed of any personal estate. Mr. Blake, in reply. 1. The 42nd section does not apply to judgments. They are not charges on land. Kealy v. Bodkin (c), Barnewall v. Barnewall (d). But supposing that they are charges on land within the meaning of that section, the question arises, what is the sum of money thereby charged on or payable out of the land, and does it bear interest? The charge is the full sum for which the judgment has been recovered; not the amount of the principal and interest which may at any particular time be due. In this respect it differs from a mortgage, which is a charge for : the principal sum, and for the interest, as it from time to time accrues 1841. Equity Exch บ. BODKIN. |