Alexander Boyle, and Others, - Appellants; Daniel Henry Ferrall, - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 14 August 1846 |
| Date | 14 August 1846 |
| Court | House of Lords |
English Reports Citation: 8 E.R. 1602
House of Lords
Mews' Dig. i. 865. S.C. 1 Ir. Eq. R. 391.
Judgment, assignment of - Notice.
[740] ALEXANDER BOYLE, and Others,-Appellants; DANIEL HENRY FER-RALL,-Respondent [June 13, 19, 1845; August 14, 1846]. [Mews' Dig. i. 865. S.C. 1 Ir. Eq. R. 391.] Judgment, assignment of-Notice. Under the 9 Geo. II., c. 5 (Irish Statute), payment by the conusor of a judgment to the conusee, without notice of the assignment of the judgment, is to be deemed payment to the assignee thereof. The registration of the assignment under that statute does not operate as notice to the conusor. The situation of a conusor under this statute resembles that of a mortgagor, under the (English Statute) 32 Hen. VIII., c. 34. This was an appeal against a decree of the Court of Chancery in Ireland, made in a suit for an account which the respondent had instituted. The circumstances out 1602 BOYLE V. FBKEALL [1845-46] XII CLARK & HNHELLY, 741 of which the suit arose were these:-In the month of May, 1823, the respondent became entitled, as heir at law and devisee of his uncle, John Ferrall, to considerable landed estates in the county of Eoscommon and elsewhere, producing an annual income of nearly 8000. The respondent had previously incurred debts to a large amount, and in particular owed to one Patrick Nolan, his uncle by marriage, the sum of 4026 8s. lOd. To secure this debt, the respondent executed an ordinary bond in double that amount, conditioned for the payment of the original debt. The other creditors of the respondent having become pressing for payment of their demands, it was arranged that the respondent should leave the country, and appoint Patrick Nolan his agent to manage his affairs. Upon the bond given to himself, Patrick Nolan, in November 1823, entered up judgment and obtained a custodiam upon the respondent's estates. He afterwards bought up other judgments which other creditors had entered up [741] against the respondent, and obtained writs of custodiam upon them to the amount of about 15,000. On the return of the respondent to Dublin, in 1828, a dispute arose between him and Nolan as to the amounts which Nolan had in the mean time received from the estates of the respondent, and as to the balance between them. This dispute was referred to the arbitration of a person named Strickland, who, in December 1829, awarded that there was still remaining due from Ferrall to Nolan the sum of 15,396 5s. 9d., on a general balance of their accounts. This award was disputed by both parties, by Ferrall, because a sum of 3000 had been, as he alleged, improperly allowed to Nolan, and by Nolan, because the sum secured to him by the judgment of November 1823, had not been taken into account. These disputes continued for some time; but at length, in July 1831, it was arranged that the 3000 objected to by Ferrall, should be struck out, and, on the other hand, that money due on the judgment of November 1823, should be brought into the account, and that if Ferrall could procure the assent of his other creditors to take their demands out of the residue of tho rents, Nolan would accept the sum of 3000 yearly until all his demands should be paid off, but without prejudice to the custodiam obtained by him. The respondent had been arrested by one of his other creditors, and was at that time in prison. On the 25th June, 1834, he executed a deed of trust for the purpose of raising money to pay off his creditors. By this deed he vested his property in two persons, named O'Conner and Veevers, who were to raise a sum of 15,000 for payment of the other creditors, and to pay a sum of 2500 a-year to Nolan, till Nolan's claim should be liquidated. Nolan consented to this arrangement and was a party to the deed. Money was afterwards raised on annuity, and Nolan joined in the securities given to the annuitants. Nolan himself was, during at least a part [742] of this period, in embarrassed circumstances. He owed a sum of 1400 to Brown and Co., and to secure it he assigned to them the judgment of November 1823, and the deed of assignment, dated the 9th January, 1833, recited that the whole sum of 4026 8s. lOd. was at that time remaining unpaid. Brown and Co. were afterwards paid off by means of a loan of 1900 obtained by Nolan from one Kobert Gray, to whom the judgment of November 1823 was, in July 1833, assigned as security. The deed of assignment stated that a sum of 3844 was then due on the judgment for principal and interest. Under the trust deed of the respondent's property, executed to O'Conner and Veevers, Messrs. Stewart and Kincaid had been appointed receivers, and from them Nolan had received various payments according to the trusts in the deed. On the 4th of December, 1833, he obtained from them a memorandum to the following effect:-"Mr. Nolan and Mr. Kincaid, to prevent further misunderstanding, have agreed to the following arrangements as to payments : viz., Mr. Nolan to receive at present 1250; and on the 3rd March next, 750 more: on the 1st June, 1000, and 1st December, 1000; Mr. Nolan not to be considered as thereby waiving his right to dispose of, as he may think proper, any surplus that may be at the end of the year after the above payments: and in case Mr. Nolan should, in the mean time, accept the rent charge of 3000, under the deed between him and Mr. Ferrall, the above quarterly payments then to be reduced to 750." The payments under the trust deed were duly made by Stewart and Kincaid down to the 1st December, 1834. On the 31st July in that year, Nolan having obtained advances from the appellants, his bankers, and desiring to obtain further advances from them, procured Stewart and Kincaid to address to himself a letter in the following terms: - 1603 331 CLAEK & FINNELLY, 7 BOYLE V. FERRALL [1845-46] " You will please mention to Messrs. Boyle and Co. that we shall pay them, pursuant [743] to the memorandum between Mr. Kincaid and you, on the 1st September next, 1000; on 1st December following, 1625; and every three months, after so long as we continue agents for Mr. Ferrall's estates, the sum of 1625, on every 1st March, 1st January, 1st September, 1st December following, until your custodiami debt shall be discharged." The memorandum thus referred to was that of the 4th December, 1833. On the 18th February, 1835, Ferrall filed his bill against Nolan, stating that the judgment of November 1823, had been paid off, and praying for an account of the rents, and for a receiver. The subpoena to answer this bill was served on Nolan, on the 19th February; on the 20th he made a third assignment of the judgment of 1823. This assignment was executed in favour of Boyle and Co., to secure the repayment of 2500, previously advanced by them, and such further sum as they might advance. Nolan, by this deed of assignment, covenanted with Boyle and Co. that a sum of 4205 5s. 7d. remained due on the judgment for principal, interest, and costs. All these assignments were duly enrolled. On the llth June following, Nolan became bankrupt. On the 25th July, Ferrall filed a supplemental bill, making the assignees of Nolan and Boyle and Co. defendants to his suit. The allegations and prayer of this bill were the same as in the former bill. On the 24th December, Boyle and Co. having previously put in an answer to Ferrall's bill, filed a crossbill against him, in which they went into all the transactions between Nolan and the various persons to whom he had assigned this judgment, and declared that the sums secured by the judgment, principal, interest, and costs, were still due, and they prayed that the judgment should be declared valid and subsisting for the amount of their demand, and that an account might be taken, and a receiver appointed. Before the causes came on for hearing, the Court referred it to the Master [744] to take an account of what was due on the cutstodiam proceedings, on the award of December 1829, and on the judgment of November 1823, and the motion for the receiver was directed to stand over till the report had been made. The Master made his report on the 6th July, 1838, and found that Nolan had been overpaid to the extent of 4982 Is. 5d. In February 1838, a motion, made by Boyle and Co., to send back the report to the Master, was refused, with costs, without prejudice however to the rights of the parties to insist, at the hearing of the cause, that the rents received by Nolan himself, after the assignment of the judgment of 1823, ought not to be applied in payment thereof, as against the assignees of that judgment. The causes were finally heard before the Lord Chancellor, who, on the 26th June, 1839, made a decree, in the case of Ferrall's bill, in accordance with the prayer of that bill, and dismissed the cross-bill, with costs (1 Ir. Eq. Rep. 391). This appeal was then brought, and the questions raised upon it, depended on the construction to be put upon the Irish statutes, 9 Geo. II., c. 5, and 25 Geo. II., c. 14.* * The 9 Geo. II., c. 5, of which the first four sections are as follows: - Whereas judgments, statutes-staple, and statutes-merchant, are frequently assigned for valuable considerations, and to protect the purchase of estates, but are no more than equitable securities in the hands of the assignees: and whereas assignees of such judgments, statutes-staple, or statutes-merchant, as the law now stands, cannot revive or discharge the same in their own names, but in the name of the conusees of such judgments, statutes-staple or statutes-merchant, or their representatives, which is often attended with very great inconveniences, and the conusee may, after such assignment, enter satisfaction on the record of the said judgments, statutes-staple, or statutes-merchant...
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