CHANCERY REPORTS, BEING A SERIES OF CASES ARGUED AND DETERMINED IN THE HIGH COURT OF CHANCERY AND ROLLS COURT. . BURKE v. KILLIKELLY. (Chancery.) THIS was a supplemental suit against D. M. Killikelly and Thomas Gillespie and Eliza his wife for the purpose of binding them by the proceedings in the cause of Burke v. Concannon, and thus to make title to a purchaser of lands directed to be sold by the decree of the 20th of June 1846 in the latter cause. The plaintiff was assignee of a judgment for £2000, obtained against Henry Concannon. The defendant Killikelly was also assignee of a judgment against the same conuzor, and the defendant Eliza Gillespie was administratrix of Thomas O'Reilly, who was also assignee of a judgment against the same conuzor. The plaintiff filed his original bill in 1817 for the administration of the assets of Henry Concannon, for a sale of his real estate, and to set aside a voluntary deed of settlement of the real estate, executed upon the 31st of August 1805, as fraudulent and void against the creditors of Henry Concannon. After various proceedings and numerous abatements a decree for a sale was obtained on the 20th of June 1846. A person named John J. Cruice, on the 2nd of December 1812, filed a bill to raise the amount secured by a judgment (which was that subsequently assigned to the defendant Killikelly), and obtained a decree for an account in 1817. In 1820 he assigned the judgment VOL. 1 1 1850. May 11, 13. In the admi nistration of assets judg ments rank inter se accord ing to the time of their entry upon the roll under the sta tute 3 G. 2, c. 7 (Ir.) Statement. 1850. Chancery. BURKE V. Statement. and decree to the defendant Killikelly, who took no proceedings until 1837, when he filed a bill to obtain the benefit of the decree of 1817, and for a sale of the lands. A decree for a sale was pronounced on KILLIKELLY the 27th of January 1841, and in the same month a receiver was appointed in that cause, who, up to the hearing of the present cause, still continued in receipt of the rents. Thomas O'Reilly was the only reported creditor in Killikelly v. Concannon. No further proceedings were taken in that cause to enforce a sale, nor was the deed of 1805 impeached, or the necessary parties brought before the Court to effect a sale. Both Killikelly and O'Reilly were cognizant of the proceedings in Burke v. Concannon, and had been required by notice to prove their demands under the decree in that cause, and also had been served with a notice similar to that in Barrett v. Bermingham (a), calling upon them to enter into a consent to be paid according to their priority, and to be bound by the proceedings in Burke v. Concannon, which notices were proved in the present cause. The judgments vested in the plaintiff and in the defendant Gillespie were both entered on the 15th of December 1810. The judgment vested in the defendant Killikelly was entered on the 17th of December 1810. Henry Concannon, the debtor, had died subsequently to the first day of Michaelmas Term 1810 and previously to the entry of any of the three judgments; they were, however, all three entered in pursuance of warrants of attorney for that purpose executed by him in his lifetime. The defendant Killikelly in this cause relied on the Statute of Limitations in bar of the plaintiff's demand, and also alleged that it had been paid off. A decree to account was pronounced in November 1848, by which it was referred to the Master to take an account of the sums due to the plaintiff and defendants, with liberty to the parties respectively to surcharge and falsify their mutual demands as found under the decrees in Burke V. Concannon and Killikelly v. Concannon, and the defendant Killikelly had liberty to rely on the Statute of Limitations in bar of the plaintiff's demand. The Master (Henn) found by his report that the sums claimed by all the parties were due to them, and that the demands of the plaintiff and of the defendant Gillespie consti (a) 1 Ir. Eq. Rep. 417. tuted the first charge upon the lands, and that the demand of the defendant Killikelly was the second charge upon them. 1850. Chancery. BURKE บ. To that report the defendant Killikelly took four exceptions. Three of those exceptions, which insisted upon the bar of the KILLIKELLY Statute of Limitations, were overruled without argument. The Statement. fourth exception claimed a priority for Killikelly's demand over that of the plaintiff, and an equality for it with that of Gillespie. Mr. Christian and Mr. Close, for the defendant Killikelly. The whole of a Law Term is deemed but one day, and all legal acts have relation thereto; therefore by general intendment every judgment relates to the first day of the Term on which it is entered. There is accordingly neither at Common Law or Equity any priority between judgments of the same Term inter se : Doe d. M'Ilwaine v. Magill (a); Abbott v. Stratten (b); Smith v. Chichester (c); O'Brien v. Scott (d); Robinson v. Tonge (e). The latter case shows that judgments on warrants of attorney, entered, as here, after the death of the debtor, relate back to the first day of the Term on which the debtor was alive, and that there exists no priority between the creditors. The statute 3 G. 2, c. 7, commonly called the Docketing Act, in the 2nd section enacts that all "such judgments (viz., those docketed under the 1st section), as against purchasers or mortgagees bona fide for valuable consideration, of lands, tenements or hereditaments to be charged thereby, shall, in consideration of law, be judgments only from such time as they shall be brought into the proper office to be entered of record and signed by the proper officer on such docket or record as aforesaid, and shall not have any preference against heirs, executors or administrators in their administration of their ancestors', testators' or intestates' estates, but from the time aforesaid." The cases already cited show that in the construction of this and the English statute, 4 & 5 W. & M. c. 20, the word "preference" is to be referred to the (a) 1 Hud. & Br. 396, n. (b) 3 Jo. & Lat. 603; S. C. 9 Ir. Eq. Rep. 233. Argument. (c) 12 Ir. Eq. Rep. 579. (d) 11 Ir. Eq. Rep. 63. (e) 3 P. Wms. 398. |