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CH. II.

PART VIII. the part of a public officer, and not on the part of the plaintiff (1). If the writ had not come to the knowledge of the defendant, it may be that the only remedy of the plaintiff would have been an action against the sheriff for negligence.

Claims brought in under administration decree.

When claims are brought in under a judgment in an administration action, a question of importance arises whether the bringing in of the claim is to be considered as the commencement of the suit or whether the issuing of the writ (formerly the filing of the bill) stops the operation of the statute for the benefit of all creditors coming in under the judgment. The question arose under the old practice before 3 & 4 Wm. IV. c. 27, in Sterndale v. Hankinson (2), with reference to a simple contract debt; a claim in the usual course had been brought in under a decree in an administration suit which was instituted by a creditor on behalf of himself and all other creditors; it was held that the bill was the bill of the claimant to such an extent as to make it his suit for the purpose of stopping the statute from running. As the debt in this case was a simple contract debt, the Court was not at the time of the decision actually bound by any statute.

Berrington v. Evans (3) was the case of a judgment debt; the bill was filed after 3 & 4 Wm. IV. c. 27, and the claim was made by petition after decree on further directions and when part of the funds had been distributed amongst the creditors; the petitioner, by way of excuse for not coming in under the decree in proper time, alleged that he had not seen the advertisements published by the Master and that he knew nothing of the proceedings and was ignorant of his rights under them; it was held by Lord Abinger, C.B., that the bill could not be considered the bill of the claimant, and that for

(1) Markey v. Dowdell, 2 Ir. C. L. R. 117.

(2) 1 Sim. 393.

(3) 1 Y. & C. Exch. 434.

CH. II.

the purposes of the statute the petition was the commence- PART VIII. ment of the suit. Lord Abinger in his judgment used expressions which seem to show that the principle of Sterndale v. Hankinson could not be applied to any case within 3 & 4 Wm. IV. c. 27, since the passing of that Act. And Shadwell, V.-C., seems to have taken the same view (1). In Ireland Berrington v. Evans was followed as deciding that where the claimant came in, not in the ordinary course, but in circumstances which show that he had not adopted the suit as his own, then the bringing in of the claim must be considered as the commencement of the suit and the filing of the bill would in no way benefit the claimant (2). But, so far as the expressions used in Lord Abinger's judgment are inconsistent with the decision in Sterndale v. Hankinson, they have not been considered law in Ireland, and the latter case has, notwithstanding the expressions of Lord Abinger, been applied to judgment debts where the claimant has come in under the decree in the ordinary course (3). Lord St. Leonards, when L.C. of Ireland, was of opinion (4) that Berrington v. Evans was properly decided, but that it did not impeach the previous decision in Sterndale v. Hankinson, and did not prevent a creditor from coming in under another creditor's bill filed for the general benefit of creditors, when his demand would not have been barred, had he himself filed the bill and where he came in according to the decree and course of the Court.

In England, under the present practice in administration actions, the decision in Sterndale v. Hankinson has become quite inapplicable. When any proceeding is now taken in the Chancery Division of the High Court

(1) Lord St. John v. Boughton, 9 Sim. 219 at p. 225; see also Watson v. Birch, 15 Sim. 523.

(2) O'Kelly v. Bodkin, 3 Ir. Eq. R. 390; Hutchins v. O'Sullivan, 11 Ir. Eq. R. 443.

(3) O'Kelly v. Bodkin, 2 Ir. Eq. R. 361; Carroll v. Darcy, 10 Ir. Eq. R. 321; and see Bermingham v. Burke, 2 J. & Lat. 699, 714; and Bennett v. Bernard, 12 Ir. Eq. R. 229, 234.

(4) 2 J. & Lat. 714; 9 Ir. Eq. R. 93.

PART VIII. to recover a simple contract debt, the Chancery Division CH. II. is as much bound by the statute of James as the Queen's

Watson v. Birch.

Bench Division (1). Moreover, it is no longer the practice, as far as the personal estate is concerned, for one creditor to bring an administration action on behalf of himself and others. Thus, in the case of In re Greaves, Bray v. Tofield (2), where an administration action was commenced by one of the executors, who was also a creditor of the testator, and a claim was brought in by a creditor for a simple contract debt, which was more than six years old at the time of the decree, but not at the time of the commencement of the action, it was held by Jessel, M.R., that the claim was barred by statute.

The action by whomsoever commenced must, to come within the reasoning of the cases, be in its nature one for the recovery of the demand sought to be saved from the bar of the statute, and, therefore, if in a foreclosure action an inquiry is directed as to incumbrances, no incumbrancer coming in under the decree can get any benefit from the commencement of the action, so far as the Statute of Limitations is concerned (3).

It was held in Ireland (4) that, if a bill by a creditor is substantially a bill on behalf of himself and all others, it is immaterial whether it is so expressed or not; but Shadwell, V.-C., in Watson v. Birch (5), appears to have been of a different opinion. The last-mentioned case, however, was rather a peculiar one. The bill praying the usual administration decree was filed by an annuitant on behalf of himself alone; R., a judgment creditor of the testator, who claimed a lien on certain documents in his possession, was made a defendant; the bill prayed production of the documents and that the lien, if any, might be ascertained, and paid according to its priority.

(1) In re Greaves. Bray v. Tofield, 18 Ch. D. at p. 554.
(2) 18 Ch. D. 551.

Bennett v. Bernard, 12 Ir. Eq. R. 229.
O'Kelly v. Bodkin, 2 Ir. Eq. R. 361.
15 Sim. 523.

CH. II.

The decree directed payment of the annuity out of a PART VIII. fund in Court, and, without directing an account of what was due to other incumbrancers, ordered that the amount found due should be paid. R.'s personal representative afterwards presented a petition praying that it might be referred back to the Master to ascertain what was due on the judgment and praying for payment; on that petition an order was made directing the Master to inquire as to incumbrancers generally; and on the Master's finding that R.'s personal representative was the only incumbrancer and certifying what was due to her, she presented a petition for payment; but it was held that there was no commencement of proceedings on behalf of R. until the presentation of his first petition, which was out of time, and therefore that the debt was barred. It is submitted that in the circumstances it was properly held that the suit was not the suit of R.; but the case is disapproved of by Lord St. Leonards (1).

However, in Humble v. Humble (2), it seems to have been the opinion of Romilly, M.R., that if an incumbrancer be made a defendant to a suit in which he might obtain payment of his charge, he will be exonerated from the necessity of taking further proceedings to prevent time running against him, and that time will cease to run from the moment of his being so made a defendant. In that case the bill was filed by legatees for the administration of the real and personal estate of a testator who had charged his legacies on his real estate, and one of the residuary devisees had mortgaged his share. At the time of the filing of the bill the legatee did not know of the mortgage, and it was not till many years afterwards that the mortgagees were made defendants by a supplemental bill. The mortgagees had not taken any steps whatever during the whole period to realise the security or enforce their claims, and after the estates had (1) Property Statutes, 124.

(2) 24 Beav. 535.

Effect of making an brancer a

incum

defendant.

CH. II.

PART VIII. been sold in the suit, upon a petition by the assignees of the residuary devisee for payment to them of a share of the money in Court, it was decided that they were entitled to it as against the mortgagees whose claim was held barred. The Master of the Rolls in the circumstances held that the mortgagees' claim was barred long before they were made defendants, but he intimated an opinion that, if it had not been then barred, time would have stopped running at that moment. If Romilly, M.R., was right in this opinion, then it would seem that Shadwell, V.-C., in Watson v. Birch (1), ought to have been decided differently, on the ground that the incumbrancer had been made a defendant before the lien was barred. Considering the question on principle, it would seem that when a plaintiff makes an incumbrancer a defendant, on the ground that the latter claims a charge, then, if this charge is established in any way in the suit, either by the decree itself or by a chief clerk's certificate, made in pursuance of inquiries and duly confirmed, the defendant is entitled to obtain the benefit of the decree or order establishing his charge in any way and at any time at which, according to the rules of the Court, he could obtain such benefit, quite irrespective of any question arising on the statute; and that, if to obtain actual payment it be necessary for any reason to present a petition, such petition ought to be considered as a means of obtaining the benefit of the order or decree, and not a proceeding to recover money. If the question of the validity of the incumbrance is determined under an inquiry, then, as the incumbrancer is a defendant, the suit cannot be his, and it would seem that his claim under the inquiry ought to be considered the commencement of proceedings, and that the plaintiff could set up the defence of the statute, treating it as running until the claim under the inquiry was made. If this view is right, the case of Watson v. Birch was rightly decided; for in (1) 15 Sim. 523.

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