Fuller v Redman
| Jurisdiction | England & Wales |
| Judgment Date | 30 April 1859 |
| Date | 30 April 1859 |
| Court | High Court of Chancery |
English Reports Citation: 53 E.R. 1030
ROLLS COURT
S. C. 29 L. J. Ch. 324; 5 Jur. (N. S.) 1046; 7 W. R. 430.
[600] fuller v. redman (No. l).(l) April 21, 27, 30, 1859. [S. C. 29 L. J. Ch. 324; 5 Jur. (N. S.) 1046; 7 W. R. 430.] By the 4 & 5 Will. & M. c. 20, judgments not docketted were not to have any preference against executors, &c., in the administration of estates. The 2 & 3 Viet, c. 11, closed the docket. Held, that the old law was thereby revived, and that the administrator had committed a devastavil by paying a simple contract debt before a judgment debt, even though he had no actual notice of the latter. In 1845 a judgment was entered up against the testator George Redman, but it was not docketted. The testator died in 1855, and letters of administration were granted to the Defendant John B. Redman, cum testamento annexo. In February 1856 a claim was filed for the administration of the estate, and on the 23d of April 1856 the judgment creditor registered his judgment in the Common Pleas, under the 1 & 2 Viet. c. 110. A decree was made in July following, and it having appeared that the assets were deficient, and that the administrator had paid simple contract creditors of the testator to the extent of 174, 17s. 8d., the judgment creditor now sought to have that sum disallowed to the administrator as a proper payment. Mr. R. Palmer and Mr. C. C. Barber, for the judgment creditor. At common law the administrator was bound to take notice of the judgment debt, and the payment of a simple contract debt before one of higher value was a devastavit, for which he became personally liable; Littleton v. HibUns (Cro. Eliz. 793). The 4 & 5 Will. & Mary, c. [601] 20, afterwards made perpetual by the 7 & 8 Will. 3, c. 36, s. 3, removed this hardship by requiring judgments to be docketted, and enacting " that no judgment, not docketted and entered in the books as aforesaid, shall affect any lands or tenements, as to purchasers or mortgages, or have any preference against heirs, executors or administrators, in the administration of their ancestor's testator's or intestate's estates." The 1 & 2 Viet. c. 110, ss. 13, 19, does not affect the question, but merely the rights of " purchasers, mortgagees and creditors, as against the lands of the judgment debtor." The 2 & 3 Viet. c. 11, s. 1, enacts "that no judgment shall hereafter be dooketted under the 4 & 5 Will. & Mary, c. 20, and that all such dockets shall be finally closed. There is, therefore, no necessity for or possibility of docketting, and the common law is revived ; notice to the administrator is immaterial; Williams on Exors. (vol. 2, p. 927 (5th ed.)). Mr. Lloyd and Mr. De Gex, contra. Even, if it could be maintained that the law in force antecedent to the 4 & 5 Will. & Mary, c. 20, was restored by the 2 & 3 Viet. c. 11, it is by no means clear that the law at that time was so unreasonable and unjust as is contended on the other side. In Anon. (2 Anderson, 159, pi. 87), it is said, " Le ley n'est cy unreasonable yue un prender notice a son perrill de chose le qua ill ne (1) dates. 1839, Act of 2 & 3 Viet. 1845. Judgment. 1855. Death. 1856. April. Judgment registered. July. Decree. MBEAV. 602. FULLER V. REDMAN 1031 poit per ascun resonable. intendment aver notice," and the Court, either laying down or acceding to that proposition, held that the executrix should not be charged with a judgment of which she had no notice. This case appears to have been decided in the same term as Littleton v. Hibbins, but it appears by [602] the same report that a case of Bereblock v. Rode was subsequently decided in the same way in Michaelmas term, 44 & 45 Eliz.; and this seems to have been the better decision, for afterwards in Harman v. Harman (3 Mod. 115), Trinity term, 1 Jac. 2, the Court relied on the case reported in Anderson's Reports, saying, "So where an obligor did afterwards enter into a recognizance in the nature of a statute, and judgment was against him upon the bond, and then he died, his executrix paid the creditor upon the statute, and the obligee brought a scire facias upon the judgment on the bond debt, and she pleaded payment of the recognizance; this was held a good plea, for she is not bound to take notice of the judgment against the testator, without being acquainted therewith by his creditors, for she is in no wise privy to his acts." But, secondly, the 2 & 3 Viet. c. 11, did not restore the old law. That Act, by inadvertence, as it must be supposed, omitted to provide for the consequences of closing the dockets. The question would be, who is to suffer by the inadvertence of the Legislature. Ought the 4 & 5 Will. & Mary, c. 20, to be held to be repealed without any intimation to that effect being expressed in the 2 & 3 Viet. c. 11, the consequence of which would be, to subject executors to great hardship and injustice, if the present view taken by the judgment creditor of the old law be correct; or ought it not rather to be considered that...
To continue reading
Request your trial
- Motor Terms Company Pty Ltd v Liberty Insurance Ltd
-
Miles v Fox
...and to have the 129 handed over to the estate of Richard, to form part of his assets. I had lately to consider (Fuller v. Eedman (No. 2), 26 Beav. 614) whether the creditors of a deceased person were entitled, although against the will of his executors, to insist on the defence of the Statu......
-
Rogers v Quinn
...E. 102. Clark v. HooperENR 10 Bing. 480. Goodwin v. CulleyENR 4 H. & N. 373. Grenfel v. Girdlestone 2 Yo. & Coll. 676. Fuller v. RedmanENR 26 Beav. 614. Moodie v. bannisterENR 4 Drew. 439 Tanner v. SmartENR 6 B. & C. 603. Cassidy v. FirmanUNK Ir. R. 1 C. L. 8. Anner v. SmartENR 6 B. & C. 60......
-
Mac Carthy v Fermoy
...Division. MAC CARTHY and FERMOY. Fuller v. RedmanENR 26 Beav. 600. Simpson v. MorleyENR 2 K. & J. 71. Van Gheluive v. Nerinckx 21 Ch. Div. 189. Hickey v. HayterENR 6 T. R. 384. Steel v. RorkeUNK 1 B. & P. 307. Revell v. Revell 4 Ir. Ch. R. 436; 5 Ir. Ch. R. O'Brien v. Scott 11 Ir. Eq. R. 63......