1834. Monday, 4BNC - Issue was en 14 tered in a cause, 43.35 and docketed according to the practice of the 1828, recovered have prevailed for 100 years, A HOPWOOD against GEORGE WATTS. RULE nisi had been obtained calling upon Edward Watts and Hannah Watts, the committees of the defendant, a lunatic, and J. Hyatt, the mortgagee of his estate, to shew cause why the judgment in this cause should not be docketed nunc pro tunc. The action was commenced on the 31st of March 1827, and issue was joined in Easter term of the same year, and notice of trial given for the sittings after that term; the issue was entered as of Easter term 1827, and docketed at the same time. The plaintiff obtained a verdict at the sittings after was not dock- Hilary term 1828, for 757., and his costs were taxed by the Master, and final judgment signed on the 31st of eted as required by 4 & 5 W. & 1834, to order no power to May 1828, when the Master gave his allocatur for 1581. damages and costs. Final judgment was entered on the roll, and carried into the Treasury chamber on the 9th of December 1828. In May 1828, George Watts was found by inquisition to have been a lunatic since the 31st of October 1826, and on the 16th of June 1828, Edward Watts and Hannah Watts were appointed committees of his estate. Pursuant to an order of the Court of Chancery, made in August 1829, that estate was mortgaged, on the 1st of May 1830, to Hyatt for 1400l. The interest of the mortgage was 70l. per annum. The plaintiff Hopwood having afterwards become bankrupt, his assignees revived the judgment by scire facias, and sued out an elegit, under which the sheriff delivered to them legal possession of a moiety of the defendant's lands. An action was was subsequently brought in the court of Exchequer by the assignees of Hopwood against Edward Watts, to recover from the latter the rents of the moiety so delivered by the sheriff, and which rents were received by E. Watts. The plaintiffs (the assignees) were nonsuited, on the ground that the mortgagee was entitled to preference over them, because their judgment had not been docketed (a). The affidavits in support of the present rule stated the practice to be, whenever issue is joined between parties, upon entry of the same, to deliver a docket paper thereof to the clerk of the judgments, who enters the same in a book kept by him at the judgment office for that purpose; that it has not been the practice to docket any judgment on such issue; but that on signing judgment an entry is made of such judgment in a book kept for that purpose, and that a number is fixed to the issue so docketed as above, corresponding with the number of the judgmentroll in the treasury, and that, by the entry and docketing, all persons searching have an equally good opportunity of discovering judgments as if the judgments themselves had been docketed as well as the issue; and the affidavits further stated, that for the last 100 years it had been the practice not to docket judgments after verdict, but the issues only, and that the issues so docketed were entered in a book kept for that purpose; that the numbers affixed to each issue afforded an immediate reference to the roll upon which the final judgment was entered up; that all persons searching at (a) Braithwaite and Another v. Watts, 2 Tyrwh. 293,, 2 Cro. & J. 318. The plaintiffs had a verdict, subject to the point of law, but the Court directed a nonsuit to be entered. See the evidence in that case as to the practice of docketing. Also Davis v. The Earl of Strathmore, 16 Ves. 419. 3 Z 3 the 1834. HOPWOOD against WATIS. 1834. HOPWOOD against WATTS. the office for incumbrances, so far as related to judgments after verdict, searched for the issues so entered and docketed, and upon finding such issues so entered and docketed, searched for final judgments thereon, and could make enquiries of the plaintiff's attorney respecting the result of the suit; and that by these means a full opportunity was given to all persons to discover such judgments, if any. The affidavits in answer to the rule stated, that final judgments were frequently docketed after trial, and taxation of costs on the postea, by applying to the clerk of the judgments, and informing him of the amount of damages and costs recovered in the action, and that the clerk of the judgments thereupon made the docket of the issue in such action a docket of the judgment, by adding such particulars thereto, for which he was paid a fee of 6d. That the clerk of the judgments never so entered the docket of the judgment, unless he was so applied to by the plaintiff's attorney, and paid such fee of 6d.: that the practice was, where it was intended to affect lands by judgments, to docket them in the manner above described that when it was intended to enter up final judgment on the roll after trial and verdict, the postea, with the Master's allocatur thereon, was left with the clerk of the treasury at Westminster Hall, who entered up the final judgment; but these entries were totally distinct from the dockets of the judgment which are entered and kept at the King's Bench office in the Temple. Joseph Addison now shewed cause (a). The 4 & 5 W. & M. c. 20. s. 2. (made perpetual by the 7 & 8 W. 3. c. 36. (a) Before Denman C. J., Littledale, Taunton, and Patteson Js. s. 3. (a)), enacts, that the clerk of the doggets of the Court of King's Bench shall make into an alphabetical dogget by the defendants' names a particular of all judgments, which shall contain (inter alia) the debt, damages, and costs recovered thereby. Here there has been a docketing of the issue only, not of the judgment. The judgment, therefore, does not affect the lands as to a mort (a) Sect. 2. enacts, as to judgments in K. B., that the clerk of the doggets shall, before the last day of every Easter term, make into an alpha. betical dogget by the defendants' names, a particular of all judgments for debt by confession, non sum informatus, or nil dicit, entered of Hilary term preceding, which shall contain the names of the plaintiffs and defendants, their places of abode, and title, trade, or profession (if any such be in the record of the said judgments), and the debt, damages, and costs recovered thereby, and the venue and the number roll of the entry thereof: That the clerk of the judgments shall, within ten days before the time aforesaid, bring to the clerk of the doggets notes in writing of all the judgments by him entered of Hilary term upon verdicts, writs of inquiry, &c., to the end that the same may be by the clerk of the doggets entered in the doggets before mentioned in manner and form aforesaid; and also that the respective officers shall, before the last day of every Michaelmas term, make and cause to be made the like doggets containing all such judgments of Easter and Trinity term then last past, and the names of the plaintiffs and defendants, titles and additions, debts and damages, in all things as aforesaid; and, before the last day of every Hilary term, cause the like dogget to be made of the judgments of Michaelmas term, with the names of the plaintiffs and defendants, titles and additions, debts and damages, in all things as aforesaid; and it is then enacted, that the doggets shall be fairly put into and kept in books in parchment in the office of the clerk of the doggets, to be searched and viewed by all persons, at all reasonable times, paying to the clerk of the doggets for every term's search for judgments against any one person, 4d.; upon pain that every clerk of the doggets shall for every term in which he shall neglect his duty in the premises forfeit 1007. Sect. 3. enacts, that no judgment not doggeted and entered in the books as aforesaid shall affect any lands or tenements as to purchasers or mortgagees, or have any preference against heirs, executors, or administrators, in their administration of their ancestors', testators', or intestates' estates. Sect. 4. enacts, that there shall be paid to the clerk of the judgments by the plaintiff, in every judgment upon verdicts, &c. by him respectively to be entered, the sum of 4d. 1834. HOPWOOD against WATTS. 1834. HOPWOOD against WATTS gagee, and he is entitled to the rents. The object of the legislature manifestly was, that any person might, by searching the books in the office, learn from them what judgments there were affecting the lands of a given individual. Now all that could be learnt by searching the books here, would be, that there had been an issue joined in a particular cause. The party seeking to ascertain whether there was any judgment, would have to make further enquiry of the attorney in the cause. The Court of Exchequer have decided, that this judgment was not properly docketed so as to give the judgment creditor a preference over a mortgagee whose title accrued after the judgment: Braithwaite and Another, Assignees v. Watts (a). The object of the present application is to place the judgment creditor in the same situation he would have been in if his judgment had been duly docketed in May 1828, and thus give his debt precedence over that of the mortgagee. The Court has no power to grant the application. The statute requires all judgments to be docketed in the term next succeeding that in which the judgments are entered. The effect of now docketing the judg ment as of May 1828, would be to make it operate as a specialty debt from that time, whereas the statute puts a judgment not docketed on a level with a simple contract debt: Hickey v. Hayter (b), Steele v. Rorke (c). The effect, therefore, of granting this application, would be to contravene the statute. The plaintiff is not without remedy; he may have an action against his own attorney if he has neglected to docket the judgment according to the usual practice, or he may have an (a) 2 Tyrwh. 293. 2 Cro. & J. 318. (b) 6 T. R. 384. (c) 1 B. & P. 307.; and see Hall v. Tapper, 3 B. & Ad. 655. |