1841. O'KELLY v. BODKIN. words in these two sections, which are conversant about the same subjectmatter, in the same sense. It is upon that clear expression of the in- Equity Exch tention of the Legislature that my judgment is founded; and whatever expressions may be found in the cases to which we have been referred, apparently at variance with this meaning of the words, they must be considered as relative to the law as it then stood, and to the particular circumstances of the case then brought under the consideration of the Judge using them; and they cannot, as it appears to me, affect the meaning which the Legislature has by the 40th section affixed to these words. The two sections must in this respect receive the same construction. At first I was very much influenced by the decision of the Master of the Rolls, in the case of Kealy v. Bodkin. Great respect is certainly due to any thing which deliberately falls from that learned Judge. But it appears to me, that in so far as the judgment of his Honor is founded upon the opinion that a judgment is not a charge upon land, the statute itself gives a full and complete answer to it: and as to the difficulty he suggests, in different sums being leviable out of different species of property, by means of one and the same judgment, it is best answered by holding (although we are not called on to decide the question in the present instance), that the same sum must be levied for interest, whether the execution be directed against the lands or the person, or the personal property of the debtor. That appears to me to be the best solution which can be given to the difficulty said to exist by the Master of the Rolls.. There is no reason to suppose that it exists at all, or that it was the intention of the Legislature that different sums in point of amount should be levied by different executions upon the same judgment. The language used in the statute is general, and sufficient to embrace every species of execution. If, however, we are to take into our consideration the anomalies arising from any particular construction of this section, a much greater one would exist by adopting the construction given to it in Kealy v. Bodkin, than any which have been suggested to arise from a contrary construction. Suppose a mortgage is executed, and a judgment in a penal sum is confessed to secure the payment of one and the same debt, with interest. By the express words of the act, six years' interest only can be levied out of the land by means of the mortgage; yet, according to the construction contended for, twenty years' interest upon the same debt might be levied out of the same land by means of the judgment. That would, indeed, be anomalous ;-to hold, that on one and the same transaction, and in the case of securities passed at the same time, and affecting the same subjectmatter, six years' interest only was recoverable by the one, and twenty years' by the other. The judgment creditor in this case cannot, for the reasons assigned, take advantage of this suit as his suit. With regard to another creditor, 1841. O'KELLY บ. BODKIN. who came in regularly under the decree in this cause, we held, upon the Equity Exch. authority of Sterndale v. Hankinson, that he had a right to consider the suit as his from the time of its institution. We so ruled upon the principle, which, I think, is a sound one, that a creditor who is aware that a suit has been instituted, so far as he is concerned, for the very purpose for which he himself would have filed his bill, is perfectly justified in lying by and not instituting a second suit, which would have the effect of increasing costs upon the estate. But we cannot consider the present applicant as in that situation. He expressly states that he was ignorant of this suit until long after the decree and the report was obtained; and, therefore, cannot claim the benefit of it, as being his from the beginning. Upon the construction to be given to the 3 & 4 Vic. c. 105. s. 26, which I mention, that it may not be supposed that it has escaped our observation, an anomaly may be hereafter found to exist. It in terms enacts, with regard to judgments not upon bonds in penal sums, that they shall carry interest at the rate of £4 per cent. per annum until paid; and if the words of that section are to be construed in their literal sense, it may be contended that twenty years' interest may be recovered upon judgments in case, although no more than six years' interest can be recovered upon a judgment on a bond in a penal sum, where, by the contract of the parties, the principal money is to bear interest until paid. It is a question which well deserves consideration. But that statute is expressly confined to judgments which do not, by the contract of the partics, carry interest; and the case before us is one in which the sum secured by the judgment is, for the reasons mentioned by the Chief Baron, to be considered as bearing interest. RICHARDS, B. I also fully concur in the judgment of the Court, and in the reasons assigned for it by the Chief Baron. The Master of the Rolls having, with much and anxious deliberation, pronounced a judgment upon this very question at variance with the conclusion we have come to, I felt, in common with the other members of the Court, that it was due to the abilities of that eminent Judge, and to ourselves, to examine fully the grounds of his opinion; and after having done so, I confess I am not able to adopt his reasoning. It occurs to me that the great strength of his judgment lies in the assumption, that by giving the act of Parliament. the construction we now give it, this incongruity would exist, that upon the same judgment, the conusee might have an execution for one sum against the chattel property or the person of the conusor, whereas he could only have execution for a smaller sum against his land. If I were of that opinion, I confess I would have great difficulty in coming to a conclusion different from that of his Honor. It therefore appeared to 1841. O'KELLY v. BODKIN. me that it was necessary I should come to some definite conclusion upon that point, ere I could dissent from the judgment of the Master of Equity Exch. of the Rolls; and in this process of reasoning, I may perhaps differ from the other members of the Court. I have accordingly done so, and have come to the conclusion that the creditor cannot have an execution for one amount against the personal property or the person of the debtor, in any case which falls within the 42nd section of the act, and an execution for another and different amount against his real estate. The statute applies generally to judgments, and to every mode of enforcing their payment. I think, with great respect and deference for the opinion of the Master of the Rolls, that he has permitted himself to be misled by considering these anomalies; which, however, he does not avoid by the construction he has put upon the act; for in the case of a mortgage, which is confessedly within the 42nd section, one sum may, according to that construction, be recovered by suing upon the personal covenant contained in the mortgage deed, and another and different sum, by proceeding directly against the land. I do not think that such is the case. For these reasons, in addition to those given by the Chief Baron, I concur in the judgment of the Court. BRADY, C. B. My Brother Foster has heard this case argued, but is not able to be present in Court to-day. He has, however, requested us to state that he retains the opinion expressed by him in his judgment in O'Kelly v. Bodkin (a). (a) 2 Ir. E. R. 372. 3 H t 1841. Chancery. Jan. 15, 16, 18, 19. Feb. 26. The committee and heir presumptive of a lunatic, who was absolute He subse quently appli ed to the Court ap rents of the es NEWCOMBE v. NEWCOMBE. JOHN BRADDELL being seized of two-thirds of the lands of Ballyshane, vey children younger of the marriage, to be divided among them, as he John Braddell should appoint; and, subject thereto, to the use of such son or sons of the for leave to marriage as John Braddell should by deed or will appoint, and to the ply the surplus heirs male of such appointed son; and, for want of such appointment, to towards the use of the eldest son of the marriage, and the heirs male of his body; payment of the and, for want of such issue male, to the use of John Braddell and his charge; but there were heirs. The articles contained a provision enabling the trustees, after the then judg. decease of the intended wife, in case her intended husband should survive her, to raise £200 out of his real and personal estate; and, if there should be more than one younger child, then to raise £100 more. tate ments affect ing the lunatic personally, and the application was refused. When the judgments were paid, the committee paid off the charge out of the surplus rents, without any order, but was allowed the amount in passing his account: Held, that the next of kin of the lu natic had no equity to have it kept alive for their benefit. The marriage took effect, but no deed was executed in pursuance of the articles, and Anne died in the lifetime of her husband, leaving three children, Henry, Benjamin, and Elizabeth. In the year 1779, Benjamin, in consideration of £500 advanced him by his father, by deed poll, assigned to the father all his share of the sums provided for the younger children by the articles. Besides the lands of Ballyshane, John Braddell was seized of the lands of Kilalongford under a lease for lives renewable for ever; and he, by his will bearing date the 22nd of July 1780, duly executed and attested, so as to pass freehold estates, after reciting the articles and the deed poll of 1779, gave to his daughter Elizabeth the moiety of the sums of £200, £200, and £100, assigned to him by the deed poll, and appointed to her the other moiety of those sums. The testator provided that in case of difficulty in raising said sums off the said lands of Ballyshane, that his personal property and his freehold estate of Kilalongford should stand charged with said sum of £500, with interest from his death; and he gave to his said daughter the further sum of £400, in satisfaction of all claims upon his real and personal estate. He then gave all his real and personal estate, subject to the payment of his debts and legacies, to his (1 Beat. 270). his son Henry, and appointed him and his (testator's) brother Mathew Grimstone's case (2 Amb. 705) was right- Weld v. Tew. any executors. The testator died shortly afterwards, without having revoked or altered his will, which was proved by his son Henry. Henry Braddell the son took possession of the real and personal estate of the testator, and having afterwards become of unsound mind, a Commission of Lunacy was issued, bearing date the 2nd February 1785, under which it was found that he was of unsound mind since October 1784, and that he was then seized of an estate for lives renewable for ever in the lands of Ballyshane and Kilalongford, and of personal property to the amount of £400. Benjamin Braddell, the brother of the lunatic, was appointed committee of the fortune, by order bearing date the 5th February 1785. Elizabeth Braddell had married William Newcombe (the father of plaintiff), and he, on the 17th of March 1795, filed his bill in Chancery against Henry Braddell, for the purpose of raising the £900 to which she was entitled. On the 22nd of July 1795, a reference was directed in the lunacy matter to the Master, to inquire whether the sum of £900 was charged on the lunatic's estate; and the Master, on the 10th of August 1795, reported that it was. Upon the 18th of August 1795, Benjamin Braddell, who was the heir presumptive of the lunatic, applied to the Court for liberty to pay off the £900 out of his own monies, and have it assigned to a trustee for him; and, by an order of that date, it was declared that he should be at liberty to do so, and should be allowed the interest on the £900 upon passing his accounts. Benjamin Braddell accordingly paid the £900, and took an assignment of the charge to Thomas Braddell, as a trustee for him. Benjamin Braddell having petitioned the Chancellor to be allowed, in passing his accounts, certain sums alleged to have been advanced by him, an order was made on the 28th of January 1805, referring it to the Master to inquire and report what were the circumstances of the lunatic. Under that reference, the Master made his report upon the 6th of March 1805, finding that the lunatic was seized of the denominations of lands mentioned before, and that his personal property amounted to £381. 16s. 3 d., the expenditure of which had been regularly accounted for. The Master further found that the freehold lands were subject to the charge of £900, mentioned before; to a judgment against the lunatic for £300 principal; to an annuity of £14 created by the will of the lunatic's father; to a judgment obtained by one Hall, against the lunatic, for £100 principal; to another judgment obtained against him by one Foley for £64. 10s. 5d. principal; and that the lunatic owed a debt of £50 secured by bond and warrant of attorney. He then reported the circumstances relating to the assignment of the £900, and further found that two of the judgment creditors having threatened to take proceedings for the recovery of their debts, Benjamin 1841. Chancery. NEWCOMBE V. NEWCOMBE. |