COURT OF CHANCERY. SMITH v. CHICHESTER.-Nov. 30. Judgments-Priority. Judgments of the Exchequer rank in the same priority with those of the other Courts, obtained in or as of the same Term, the Exchequer judgment having relation to the first day of Term, although the day of the plaintiff's appearance named in the declaration, be subsequent to it. This case came before the Court on exceptions to the Master's report. Several creditors having judgments against the defendant, all of which being entered during vacation, related generally to the first day of the previous Term, the Master, in considering the priorities of these judgments, postponed that of Messrs. Rundell and Bridges, being in the Exchequer, to those in the Courts of Queen's Bench and Common Pleas. Christian, Q. C., for Rundell and Bridges, in support of the exception. The Master reported the Exchequer judgments puisne to those in the Queen's Bench and Common Pleas, because the record in the Exchequer shews the date of the appearance, which the others do not, but nevertheless they have relation to the first day of the Term. Burrough v. Williamson, (11 I. E. R., not published); Stanford v. Cooper, (3 Cro. 102). Gayer, Q.C., for report. The doctrine of relation does not take place where the record shews that the judgment could not have been recovered on the first day of Term. Anonymous, (3 Salk. 212); Swan v. Broome, (3 Bur. 1595); Hynde's case, (4 Co. Rep. 71. b). Pilkington for another creditor, in support of the report, referred to Porchester v. Petre, 3 Dougl. 274); Miller v. Bradley, (8 Mod. 190); Huys v. Wright, (Yelv. 35). Rogers, in reply, cited Att-Gen. v. Andrews, (Hardres 23); Doe & Davies v. Creed, (5 Bing 327); Bragner v. Langmead, (7 T. R. 20, 24); Calvert v Tomlin, (5 Bing. 1); Ex parte Birch, (4 B. & C. 880); Greenway v. Fisher, (7 B. & C. 436); Witton v. Girdlestone, (5 B. & Al. 847). LORD CHANCELLOR.- In this case the judgment obtained by Messrs. Rundell and Bridges has been postponed to those of creditors who obtained judgments in the same term, but in different courts. It appears that all the judgments in question were entered in vacation, that of Messrs. Rundell and Bridges in the Court of Exchequer, and, according to the practice of that Court, the plaintiff states his own day of appearance, which in this instance was on a day subsequent to the first day of Term; and it is contended that a judgment upon a declaration, which on the face of the record appears to have been filed on a particular day, cannot relate to the first day of Term, or farther back than the day mentioned in the declaration. There can be no doubt that in point of law all judgments are considered as having relation to the first day of Term. The authorities are uniform with the distinction noticed in Whittaker v. Whittaker, (8 B. & C. 768); Samuel v. Evans, (2 T. R. 569). That where the proceedings are in the Queen's Bench by bill, they relate to the first day of Term, but that where there is judgment on process by original, it relates to the first essoign day of Term. Thus, in Stanford v. Cooper, (Cro. Car. 102), a judgment was held to relate to the first essoign day, instead of to the first day of the full Term. That is a strong case, and shows the force given to a fiction of law, it being determined that even against a Statute solemnly acknowledged, the Court will give effect to the fiction of relation. A decree of this court is different, and in Morrice v. Bank of England, (3 P. Wms. 401, note F), the decree of the Court of Chancery being for a just debt, and having a real priority in point of time, not by fiction and relation to the first day of Term, was preferred in the order of payment to the judgments, and the executrix protected and indemnified in paying a due obedience to such decree. But, with regard to judgments, among themselves their relation to the first day of Term, even in this court, is settled by doctrine is contained in the case of Bragner v. Robinson v. Tonge, (3 P. Wms. 397). The general Longmead, (7 T. R. 20,) which decides "That a judgment signed in any part of the Term, or the subsequent vacation, relates back to the first day of the term, notwithstanding the death of the defendLord Kenyon says, ant before judgment actually signed." In that case "If we were now to consider for the first time, whether legal relations and legal fictions should be adopted, we would inquire into, and sift most minutely the foundations on which they could be supported, but it is now too late for us, sitting in a court of law in the eighteenth century, to consider whether or not that which has at all times been considered as law, should continue to be law now. In this case, we are bound by a current of authorities all speaking the same language." In Javil v. Wiltshire, (Willes, 428), a similar doctrine obtained when "the whole court were of opinion that the statute 29 Car. 2, c. 3, strengthens the case, for that statute was drawn by Lord C. J. Hale, and provided only for judgments affecting lands, in the case of purchasers, leaving them in all other cases to the course of the court, where, though entered after the death of the parties, they have relation to the first day of Term if signed in Term, if signed out of Term, to the first day of the preceding Term." The same doctrine is held in Doe v. Magill, (1 H. & Bro. 396,) and Calvert v. Tomlin, (5 Bing. 1; 2 Moo. Paine, 1 S.C.) that the statute of frauds has no relation between creditors, it was passed only for the protection of purchasers. For the general doctrine there is ample and unvarying authority. But it is now contended that though this is so in general, yet if there appears on the record any date which shows that judgment could not have been actually recovered on the first day of term, the relation is only to the day which appears on the record, and this is said to be founded on the authority of a dictum of Lord C. J. Holt in 3 Salk. 212:—" A judgment shall have relation to the first day of the Term, as if it were given on that very day, unless there is a memorandum to the contrary, as where there is a continuance of the cause till another day in the same Term." It is important to observe that what the dictum mentions as having the effect of preventing relation to the first day of Term, is a continuance, which is the act of the court. In Miller v. Bradley (8 Mod. 190), judgments in the Exchequer relate, not to the first it appears that a judgment was given on the last day of Term, and the plaintiff having issued a testatum ca. sa. on it, it was contended that that was irregular. But the court held-"This is a judgment of the first day of the Term in which it was obtained, by relation which is sufficient to ground a ca. sa., and by consequence a testatum ca. sa.; and if there is no difference between an action by bill and by original, it is regular. As to the continuances being carried on from one Term to another, no such thing appears on the record, so this exe. cution is regular. It is true, if the continuances had been entered no execution could be prior to such entry; and so is the case Prince v. Haughton, and Dobson v. Bell." So the case before C. J. Holt, and the case 8 Mod., do not carry the exception farther than this, that if there be a continuance on record, the doctrine of relation will not operate to carry the judgment farther back than the day of the continuance. Huys v. Wright (Yelverton, 35) was an action on an award made in Easter Term, that the defendant should cease all actions against the plaintiff, and should release all demands. The breach assigned was, that the defendant had not ceased his action, but had prosecuted it, and afterwards obtained judgment against the plaintiff in the same Term. The defendant pleaded non assumpsit; on a motion in arrest of judgment, it was argued that there was no breach, because the judgment related to the first day of Term. The court at first admitted that, but afterwards said that the defendant had filed a pleading confessing that the judgment had been obtained after the award. In fact, they did not refer to the record of the original judgment, and held they could not look at it. Lord Mansfield, in Porchester v. Petrie (3 Doug. 274), seems to have mistaken Hynde's case (4 co. 70 b.), which appears to have been the same in principle as Huys v. Wright, there the party having demurred to a pleading which alleged that the enrollment of a deed had occurred after a fine had been levied, and the court held that the demurrer admitted that fact. In Porchester v. Petrie, the question did not arise. In Swan v. Broome (3 Bur. 1595), a recovery was questioned on this ground the return day of the writ of summons happened to be on a Sunday, on which day the tenant died; and the court held, that as it appeared by the record that the return day was Sunday, on which day judgment could not be given, and as the judgment could not relate to a previous day, the recovery was bad. All that is in conformity with the doctrine of relation, and the language of the Statute of Frauds, "that judgments of the King's Courts at Dublin do many times relate to the first day of the Term whereof they are entered, or to the day of the return of the original, or filing the bail" does not distinguish between the Exchequer and the other King's Courts. Now, the question is, whether there is anything in the practice of the Court of Exchequer to introduce a distinction between the judgments of that court and those of any other. I may say that no such distinction has ever yet been acted on. There cannot be found any case in which there is the slightest allusion to the doctrine, that day of the Term, but to the day on which the party What is there to prevent the rela ROLLS COURT. FULTON, Petitioner, FARRAN, Respondent.-Nov.13. Judgment Creditor-Petition—Charging Order— Where a charging order has been obtained by a the fund will not be transferred upon motion. This was an application that two sums of stock, which, by an order bearing date the 19th day of February, 1848, and made in the cause of Blake v. Ffrench, had been transferred to the separate credit of the respondent Farran, a reported creditor in the cause of Blake v. Ffrench, might be paid to Fulton, the petitioner. And, by an order bearing date the 18th of January, 1848, made in the matter of Fulton, petitioner, and Farran, respondent, the interest of the respondent in the fund standing to the credit of the cause of Blake v. Ffrench, was under the 3 & 4 Vic. c. 105, charged with payment of two judgment debts due to the petitioner, and upon the 12th of February, 1848, the charging order was made absolute. By the said order of the 19th of February, 1848, made in the cause of Blake v. Ffrench, the sum of £977. 2s. 7d. was directed to be transferred to the separate credit of William Farran, the respondent. ceiver might be directed to pay him £100 out of the moneys coming to the annuitant. The Vice. Chancellor held, that as the lady appeared by counsel and opposed the petition, he had no jurisdiction to make the order; but that a bill must be filed. Newton v. Askew (12 Jur. 766), shews that Whitfield v. Prickett is law in England, and supports Lord Langdale's reading upon the cor responding statute in England, and the jurisdiction under it. In the present case, the petitioner is under obligation to other persons to pay them out of the fund now sought for. THE MASTER OF THE ROLS.-In this case, on the 18th of January last, a conditional order had been made, that certain stock, which has subsequently been transferred to the separate credit of the respondent, by an order made in the cause of Blake v. Ffrench, should, under the 23rd section of the 3rd & 4th Vic. cap. 105, stand charged with the petitioner's demands. This conditional order was made absolute on the 12th of February following, the Master having, in the interim, made his allocation report, dated the 24th of January. I may here remark, according to a case decided in the Court of Exchequer, the conditional order was irregular ; for that court will not make a charging order before an allocation report has been made, and I think that practice is convenient, but it does not apply in this case, for there has been no application to set aside the order, though more than six Hamilton Smythe. The question in this case is, whether the petitioner is entitled to have this sum paid out six months after the charging order was made absolute, without filing a bill. By the 3 & 4 Vic. c. 105, s. 23, it is enacted that "such charging order shall entitle the judgment creditor to all such remedies as he would have been entitled to if such charge had been made in his favour by the judgment creditor." The language of the act gives the party the same benefit as if the fund had been charged in his favour by the owner. The case of Burke v. Burke, (7 I. E. R. 174,) is directly in point, and the order to transfer the fund was there made upon motion. Whitfield v. Prickett, (13 Sim. 259,) is not an authority against this motion. That and the other English cases all proceed on the prac-months have elapsed since the charging order. tice, that it is not the course to pay out money to an assignee of a fund upon motion, unless by consent of the assignor. In this country, however, the practice is different, for upon an ordinary motion to pay out funds pursuant to an allocation report, it is usual to entertain motions upon behalf of persons to whom funds have been assigned, or in whose favour they have been charged. In the case of petitioners, and Bridgeman respondent, unreported, upon application by the judgment creditor (of a party who was tenant for life of a fund in court) for a receiver, or to have the dividends paid out, it was ordered that the dividend should be paid to the judgment creditor in satisfaction of his demand. Richard Armstrong contra.-It must be admitted that this court has been in the habit of substituting equitable assignees of a fund, and making the payment to them of monies allocated to their assignor; but this practice appears not to be warranted except by consent. The practical inconvenience of parting with a fund, in which parties may be interested who are not before the court, is manifest, and a motion should not be elevated into a hearing of a cause, and a settling of rights and priorities of different claimants to a fund. When Burke v. Burke was decided in 1844, Whitfield v. Prickett was not before the profession, the report not having been published till 1846, and the same observation applies to the manuscript case cited. In Westall v. Leslie reported in a note to Neate v. Pink (15 Sim. 453), in which a lady entitled to an annuity which the receiver in the cause was directed to pay her, charged it with the repayment of £100 lent to her by one Carter, who presented a petition, praying that the re. In this case, the owner is interested in supporting that this case should be made a precedent for a similar rule, under such a state of facts. Order in terms of the notice, EQUITY EXCHEQUER.-TRINITY TERM. PUTLAND V. EVANS.-Dec. 5. Personal Interrogatories, 115th Order. The Court will not, in general, interfere with the discretion given by the 115th Order to the Remembrancer, as to the examination of parties by interrogatories in the office. Mara moved that the defendant, Evans, might be at liberty to examine Mrs. Putland, the plaintiff, on personal interrogatories, notwithstanding the refusal of the officer to permit it. It appeared that the Remembrancer in the office had named a day up to which Mrs. Putland might be examined in the manner now applied for, and that the defendant had allowed that time to pass. It was further sworn that her evidence was material, and could not be replaced by that of any other person. Longfield, Q. C.-The Remembrancer knows all the facts, and has refused this application, and the order gives no appeal to the court. The court certainly ought not to interfere, as it was evidently intended that the Remembrancer's decision on such points should be final. RICHARDS, B.-This is an appeal from the decision of the Remembrancer, upon a matter purely within his jurisdiction and discretion. The general rule provides that the Remembrancer shall have power, at any time he sees fit, to direct such an examination as the present; apparently intending that the matter should remain constantly in his discretion. I do not say that we should not have jurisdiction to interfere under very special circumstances, but, before we so interfere, we must see very special circumstances. In this case we have not heard sufficient to induce us to interfere with the officer, the more especially as he is intimately acquainted with the cause, and can order the examination at any time he sees fit. HORT V. BLOOMFIELD.-Dec. 17. Practice-Liberty to Creditors not parties to suit to come in and prove. Clarke v. Jessop, (10 I. E. R. 40,) dissented from. After the report and final decree in the cause, the court will not, at the instance of the plaintiff, grant liberty to judgment creditors to come in and prove their demands, with permission to object to the accounts and proceedings already had, unless upon consent of all the creditors. Robert Johnston, on behalf of the plaintiff, moved, that notwithstanding the report and final decree in this cause, certain judgment creditors of the defendant and inheritor of the lands decreed to be sold might be at liberty to prove their demands, The notice was in the precise terms of that in the case of Clarke v. Jessop and others (10 I. Eq. R. 40). The bill had been filed previously to the new rules, and the various judgment creditors had not been made parties. Neither the judgment credi tors, nor any of the defendants in the cause, appeared on the motion. Counsel relied on the authority of Clarke v. Jessop (10 I. Eq. R. 40), and Gillespie v. Alexander (3 Russ. 136), referred to in the judgment in that case. LEFROY, B.-With great respect to his honour the Master of the Rolls, the case of Gillespie v. Alexander cannot be relied upon as warranting his ruling in Clarke v. Jessop. The effect of the decree in the case before Lord Eldon was not to undo any thing that had been done in the previous stage of the suit, but to leave matters in statu quo— but here non constat, that some of these creditors may not prove charges prior to those already reported, and thus unsettle the entire proceedings. To grant this application, would be to make a decree upon motions. Perhaps, if all the judgment creditors mentioned in your notice enter into a consent to be bound by the previous proceedings, I may grant the liberty you seek, but at present I say no rule. COMMON PLEAS.-MICHAELMAS TERM. IN RE BOOTH AND OTHERS. Where a matter is referred to arbritration, and It appeared that all matters in dispute between the parties had been referred to arbitration, and that the arbitrators had awarded in favour of the applicant, with costs; and, on taxation, the officer had disallowed certain items relative to the perusal by counsel of the draft deed of submission. The taxing officer now made his report, as to his reasons for disallowing the above items, which was as follows:-"I disallowed in the said costs the items entitled draft instructions for counsel to settle deed, 5s. 4d.; attending counsel therewith, 6s. 8d.; paid his fee, £2 2s.;' because it is contrary to the practice in the taxation of law costs, between party and party, to allow any fee to counsel for the settling of a deed, the reason of which I apprehend to be, that a deed is not a document that requires the signature of counsel to give it effect. For instance, no fee was ever allowed to counsel in the taxation of costs, between party and party, for drawing a fine or recovery, or a deed to declare uses thereof, because the signature of counsel was not required to those documents. So in England, where the signature of counsel is not required to declarations, or to the plea of the general issue, no fee is allowed to him for drawing the pleadings; Pigot, C.B., Pennefather and Richards, B.B., were absent. but if the pleadings be special, as a replication, or demurrer, &c., the signature of counsel is necessary before the pleading is filed, and then a fee is always allowed to counsel. In Ireland, where, by a rule of all the law courts, every pleading must be signed by counsel before it can be filed, a fee is always allowed to him for drawing declaration, the plea of the general issue, and every other pleading." Coates now, with R. Armstrong, contended that the items ought to be allowed, that the reasons assigned in the officer's report for disallowing them were fallacious, that the deeds mentioned in the report meant deeds of conveyance, as the instances cited-viz., fines and recoveries, and deeds to declare their uses—and thus plainly shewed that the English practice was incorrectly stated; and although many pleadings in England do not require the signature of counsel, fees to special pleaders, gentlemen practising under the bar, were always allowed on taxation,-that the deed of submission was not a deed of a conveyance, but in the nature of a record, the foundation of the proceedings, and it was necessary it should be perused and settled by counsel, in order to the proper adjustment of the rights of the parties, that serious questions of law and equity were in dispute between the parties to this arbitration, and that the deed of submission required to be drawn up with great care and accuracy,—that it was not within the province of a solicitor, however skilful, to settle such a deed on his own responsibility, and that he would not have been justified in so doing. Fitzgibbon, Q.C., contra, resisted the application, and insisted that the items were properly disallowed, that the deed of submission was not special, but of the ordinary character of deeds of this kind,—that it was unnecessarily prolix, the facts of the case not requiring any special deed, and that it might have been drawn in a much more concise form,—that if one party chose to employ counsel to settle his deeds, it was done for his own satisfaction, and that they had no reason for burdening others with costs unnecessarily incurred. PER CURIAM. This draft deed is not a mere formal copy to be signed by counsel, but appears to have been carefully and laboriously altered, and the other parties acquiesced in this deed. We think it right to allow the fee for perusing it, but in doing so we do not mean to interfere with the general rule set out in the Master's report. No costs to either party. PRENDERGAST v. Lord GLENGALL.-Nov. 25. Sheriff-Informal return of Fi. Fa. To a writ of fi. fa. the Sheriff returned the delivery of prior writs to his predecessor and to himself; seizure by the predecessor, in whose hands goods remained for want of buyers; and that there were not any other goods and chattels within his bailiwick at the time of the delivery to him of the said annexed writ, or at any time since, whereout he could levy the sum mentioned, or any part thereof. Held a bad return. J. B. Murphy, on behalf of the plaintiff, applied for an order that the Sheriff for the county of Tipperary should amend his return to a writ of fi. fa., on the ground that the said return was irregular, informal, and defective. The Fi. Fa. was delivered to the sheriff on the 23d of October, 1848, returnable on the 2d of November, and was indorsed to levy the sum of £1066. 11s. 4d., besides damages and costs. this the sheriff made a return, stating that on the 15th of February, 1847, and before the delivery to him of the said writ, a certain other writ of Fi. Fa. against the goods and chattels of the same defendant, at the suit of the Governor and Company of the Bank of Ireland, marked for the sum of £1,119, and returnable on the 15th of April, then next, was delivered to Lord Suirdale, his predecessor in office. That on the 12th of November, 1847, and before the delivery to him of the said writ, a certain other writ of Fi. Fa. against the goods and chattels of the same defendant, at the suit of Timothy George Adams, marked for the sum of £667. 10s. 3d., and returnable on the 19th day of November then next, was also delivered to his said predecessor. That on the 31st of December, 1847, and before the delivery to him of the said writ, a certain other writ of Fi. Fa. against the goods and chattels of the same defendant, at the suit of John R. Byrne, marked for the sum of £381. 12s. 10d., and returnable on the 11th day of January then next, was also delivered to his said predecessor. And that on the 6th of January, 1848, and before the delivery to him of the said writ, a certain other writ of Fi. Fa. against the goods and chattels of the same defendant, at the suit of Hugh O'Callaghan, marked for the sum of £870. 2s. 5d., and returnable on the 11th of January then next, was also delivered to his said predecessor. That six other writs of Fi. Fa., at the suit of other persons, against the same defendant, had been delivered to himself before the delivery of this writ, and that on the 23d of October, 1848, the writ at the suit of the present plaintiff was delivered to him, and the return then concluded as follows:-" and I further certify that by virtue of the said four first-mentioned writs, and according to the priorities thereof respectively, the said Richard, Lord Suirdale, my predecessor in office, took and seized the following goods and chattels of the said Earl, to wit, 200 sheep, 20 cows, 14 horses, 3 carriages and harness, and a quantity of household furniture, of the amount and value of £800, and that these goods and chattels remained in the hands of the said Richard, Lord Suirdale, for want of buyers, and that the said Earl had not any other goods or chattels within any bailiwick at the time of the delivery to me of the said annexed writ, or at any time since, whereout I could levy the sum therein mentioned, or any part thereof." This return is defective; it or any part thereof." is argumentative and uncertain. It should have stated in positive terms that the defendant either had, or had not, goods in the sheriff's bailiwick. From this return it cannot be concluded whether, in point of fact, there were any goods which the sheriff could have seized. If there were not any such goods, the return should have been nulla bona. If there were any such, he should have seized them, so as to have given us an opportunity of issuing a venditioni erponas, selling the goods, and out of |