Braithwaite and Another v Edward Watts
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1832 |
| Date | 01 January 1832 |
| Court | Exchequer |
English Reports Citation: 149 E.R. 136
EXCH. OF PLEAS.
S. C. 2 Tyr. 390; 1 L. J. Ex. 97.
[318] braithwaite and anothkk v. ed\vakl watts. Exch. of Pleas. 1832.- Docketing the issue is not a sufficient docketing of a judgment, within the provisions of 4 & 5 W. & M. c. 20 :-Held, that the committee of a lunatic, who had received and paid over rents to a subsequent mortgagee, was not liable in an action for money had and received to a judgment creditor, to whom the land had been delivered by the Sheriff, under an elegit sued out upon a judgment prior to the mortgage, of which judgment there was no docket, though the issue had been docketed. [S C. 2 Tyr. 390; 1 L. -T. Ex. 97.] Debt for money had and received, Sic. Plea, nil debet. At the trial, before Lord Lyndhurst, C. B., at the London Sittings after Michaelmas Term last, the following were the facts of the case : The plaintiff's were the assignees of one Hopwood, a bankrupt, and the defendant was one of the committees of George Watts, a lunatic. Hopwood, in 1828, had obtained a verdict against George Watts, in the Court of King's Bench ; in Easter Term, 1828, the postea was indorsed on the record, and final judgment signed ; and, in December, 1828, judgment was entered on the judgment roll. The plaintiffs, after having sued out a scire facias, issued a writ of elegit, on the 8th January, 1831, under whioh the Sheriff, on the 25th January, 1831, delivered to them a moiety of the lands of George Watts, the lunatic. The defendant had received 181. 5s. Gd., the amount of rent of that part of the lunatic's lands which had been delivered by the Sheriff to the plaintiffs on the execution of the writ of elegit. In May, 1828, a commission of lunacy had issued against George Watts, under which he was found a lunatic from 31st October, 182!!. On the 16th June, 1828, an order was made by the Court of Chancery, appointing the defendant, and one Hannah Watts, committees of the lunatic's estate and person ; and, on the 25th, the usual grant was made to them. In August, 1829, an order was made by the Court of Chancery, for charging the lunatic's real estate, by way of mortgage, for payment of debts; and, on the 1st of May, 1830, the land in question was accordingly mortgaged to a Mr. Hyatt, to secure to him the sum of 14001. and interest. [319] The principal question at the trial was-whether the judgment or the mortgage was entitled to the priority. The docket book of the King's Bench was produced, in which there was an entry of the cause, from which it appeared the issue was docketed. The entry shewed the number of the roll, but the officer who produced it proved, that it did not follow, from such tentry, that there had been a judgment. He said also, that the book in question was the only one produced to persons coming to search for judgments; that, when a...
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