Sir John Charles Hamilton, Bart. - Appellant; Joseph Houghton, - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 21 July 1820 |
| Date | 21 July 1820 |
| Court | Exchequer |
English Reports Citation: 4 E.R. 290
APPEAL FROM THE COURT OF EXCHEQUER.
Mews' Dig. ii. 1382: ix. 312; x. 888: as to computation of interest, see now R.S.C. 1883, Ord. 55 rr. 62, 63.
[169] IRELAND. appeal prom the court op exchequer. sir JOHN CHARLES HAMILTON, bart.-Appellant; JOSEPH HOUGHTON,- Respondent [21st July 1820]. [Mews' Dig. ii. 1382 : ix. 312; x. 888: as to computation of interest, see now R.S.C. 1883, Ord. 55 rr. 62, 63.] Where a tru^b is created by deed for the payment of debts; if a bill is filed by one of the creditors to enforce the payment of his debt; that purpose can only be effected by the general execution of the trust. The decree ought to direct such execution and an inquiry as to all the debts owing and payable under the trust, and that they should be paid according to their priorities. A decree for payment of the debt of one creditor, under a deed of trust, which, provides for the payment of other creditors is erroneous1.-So if the bill, stating A. to have been the survivor of the trustees named in the deed, makes the heir of A. a party to the suit, as such supposed survivor, and that allegation 290 HAMILTON V. HOUGHTON [1820] II BLIGH. proves to be false, the decree made upon such state of the pleadings is erroneous. A bill to carry such 'a decree into execution, notwithstanding long acquiescence, cannot be sustained. The original decree may be examined, impeached and varied in a suit to carry that decree into execution. It is not conclusive until reversed by original bill, or bill of review, for error apparent on the face of the decree, and the court may refuse to- carry it into execution. A decree, to carry into execution a.n erroneous decree, being reversed; the ca-use was remitted, with leave to amend the bill, by adding parties and making a better case as to the original claim, notwithstanding the lapse of sixty years from the date of the deed by which the debt was secured, and of forty years from the date of the erroneous decree; as between the plaintiff creditor, and the debtor there is no presump-[170]-tion from lapse of time in such a case, and upon such state of the pleadings that the debt ha.s been paid. But other creditors, whose debts ought to have been provided for by the decree, might have a right toj raise that question. A debt by simple contract does not carry interest, because provision for its discharge is made by a deed of trust; such a deed per se does not import contract or trust for the payment of interest, especially where the creditors have not signed the deed, and no agreement is made to charge the land and discharge the person. Interest ought not to be computed from Wie date of the decree for payment, but from the day when payment is by the decree directed to be made. An erroneous decree, directing payment of interest cannot give the right to interest; but interest may be due under circumstances, A party who files a bill in a court of equity to have the benefit of a former decree, must shew (if the case requires it) that such former decree was right. If a decree appears to be erroneous, it cannot be carried into execution. A decree taken pro confesso is the decree of the plaintiff who takes it, and it is his duty to see that it is right. A decree taken pro confesso against one of the defendants in a suit, may be impeached for error by a party claiming under that defendant; and the party claiming under the plaintiff in the suit can have no1 benefit of that decree1, if erroneous. A bill taken pro confesso is conclusive against the defendant only as u the facts within his knowledge; not as to facts which the plaintiff has the same opportunity of knowing as the defendant, e.g. as to the survivorship of a trustee, which was alleged in the; bill but proved to be contrary to the fact. This was an appeal, on various grounds, from a decree of the Court of Exchequer (Equity side) in Ireland. The following are the facts of the case, shortly abstracted from the pleadings in the Court below. [171] By indenture of release', bearing date the 13th of May 1758, and made between William Hamilton* and John Hamilton, his eldest son (afterwards Sir John Stewart Hamilton, baronet,) of the first part; the Bishop of Limerick, William Scott, Henry Hamilton, and Galbraith Lowry, of the second part; and Redmond Keane, of the third part; certain hereditaments and premises therein mentioned were conveyed to the parties of the second part; and their heirs, upon trust, that they or the survivor of them, his or their heirs, should, by sale, etc. discharge the debts and in-cumbrances mentioned in the schedule to the release annexed, together with all interest then due thereon respectively. Robert Carson was one of the creditors named in the schedule, and opposite to his name is written the sum of 350. Upon the several debts contained in the schedule, which carried interest, being debts by mortgage, judgment, etc. the interest was computed, and the word " interest " was written under them; but the word " interest" was not written under the debt of Robert Carson, and no interest was computed on his debt. William Hamilton died intestate before the 5th day of January 1778, when Sir * It appears that William Hamilton was tenant for life of the estates conveyed in trust, and John Hamilton was owner of the inheritance in remainder. See p 184 291 IIBLIGH. HAMILTON' V. HOUGHTON [1820] John Stewart Hamilton * became entitled to the premises comprised in the release; and also obtained letters of administration of the personal estate of his father. [172] On the 5th of January 1778, Robert Carson filed a bill in the Court of Exchequer in Ireland, against Sir John Stewart Hamilton, James Scott, as the heir at law of William Sco*tt, (in the bill stated to be the survivor of the trustees named in the release), and others, f The bill stated, that Robert Carson had been employed for several years before the month of May 1758, by William Hamilton, as attorney and solicitor in several causes; that for the prosecution and defence thereof, after making all fair allowances, there remained duel to Robert Carson 400 for money laid out and expended, and for his fees as an attorney or solicitor, and that William Hamilton being so indebted to him, and at the same time owing several other debts, did, with Sir John Stewart Hamilton, execute such indenture of release as before mentioned; nod the bill prayed, that an account might be taken of what was due to Robert Carson, lor principal, interest and costs, in respect to the said sum of 400, and also what was due to the other creditors of the said William Hamilton, who should come in and contribute to the expenses of the suit, and that the lands and premises mentioned in the deed of release, or a competent part thereof, might be sold for payment of such ilomanda. Robert Carson died, and his executors1 filed a bill of revivor; but Sir John Stewart Hamilton having been served with process, and not appearing to the original bill and bill of revivor, process of contempt to sequestration was entered up against him, for want of appearance and answer. [173] On the 26th day of February 1779, the cause came on to be heard on sequestration as against Sir John Stewart Hamilton, and on kill and answer, as against the other defendants,^ when it was decreed that the bill should be taken as confessed against Sir John Stewart Hamilton, and that the Remembrancer should state an account of what was due to the executors of Robert Carson, on the foot of the deed of the 13th of May 1758, for principal, interest and cost, and also on the sum of 50 in the pleadings mentioned. In pursuance of the decree, the Remembrancer made his report; bearing date the 15th day of September 1779, whereby he certified that there was due to the executors of Robert Carson, for principal and interest on the foot of the deed of the 13th May 1758, and of the said sum of 50, 835 5s. This report was afterwards confirmed. On the 23d day of February 1780, the cause came on to be he.vrd for further directions, when it was ordered and decreed, that the Remembrancer should take an account of interest on the principal sum of 350, from the 3d day of December then last, to which time interest had been computed, to the 31st day of January then last, being the time when the report was confirmed, which (being computed) amounted in the whole to the sum of 855 19s. 6d.; and it was further ordered and decreed, that Sir John Stewart Hamilton should, in three calendar [174] months, pay such sum to the executors of Robert Carson, with interest from the 31st day of January then last, until paid with the costs of the suit, or in default thereof, that the Remembrancer should sell the premises comprised in the deed of the 13th day of May 1758, and that out of the money arising by such sale, the plaintiffs should be paid the principal money, interest and costs. In the year 1785, the...
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