Cates and Panchaud v Dill

• Jurisdiction: Bermuda
• Judgment Date: 15 August 1956
• Date: 15 August 1956
• Docket Number: Civil Jurisdiction 1954 No. 107
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 1954 No. 107

Between:

Cecil Laurie Cates

and

Louis William Panchaud

Plaintiffs

and

Wesley Ew Dill (The Elder)

Defendant

The following cases were referred to in the judgment:

Turner v CoxENR 14 ER 111

Lyon V ColvilleENR 63 ER 494

Bullen v A'BeckettENR 15 ER 684

Re Lambe (Vol. 1, Page 142, Considered Judgments of Bermuda, unreported)

Wigan v Jones (1830) 10 B&C 459, 109 ER 521

Skeeles v ShearlyENR (1837) 3 My & Cr 112, 40 ER 867

Hunt v Hooper [1844] EngR 267, 12 M&W 674

Real property — Interpleader — Execution —Charge on land under Supreme Court Act — Priority of charges — Debt — Application of English law before 1612 in Bermuda

JUDGMENT of Smith, AJ

1. This in an interpleader taken out by the Provost Marshal General asking the directions of the Court as to how he shall apply the proceeds of the sale of the judgment debtor's property in satisfaction of a number of judgments recorded against the latter and of two writs of execution issued on behalf of two of the judgment creditors, and it raises two questions of general public importance and a third question which is almost equally important to the two execution creditors.

2. These questions are:

• i. Is a judgment of this Court a lien on land;

• ii. If it is a lien, can it be overreached by the exercise of a general power of appointment; and

• iii. Who was the first execution creditor.

3. The main facts of this case are not seriously disputed, though the proper conclusions to be drawn from certain of these facts have been the subject of keen argument before me.

4. These facts are that in 1952 Dill, the judgment debtor, purchased a piece of land in Southampton Parish, which was conveyed to him to uses to bar dower in the usual form. He also owned a quantity of personal property.

5. On 18^th December 1953, the judgment creditor, Cates, obtained judgment against him in this court for £403.17.6d and £4.4.0d costs. Following this, in 1954 and 1955, seven more judgments were entered against him for various amounts to a total of over £4,000, the last of which was a judgment entered by Panchaud on 25^th June 1955 for £350 and £11.7.0d costs.

6. On the 4^th November 1954 Cates, the first judgment creditor, took out a writ of execution in the usual form against the judgment debtor, which was delivered to the Provost Marshal General with instructions to levy on the 15^th November 1954, but no action was taken by the Provost Marshal General at that time and on 1^st February 1955, Cates' attorneys instructed the Provost Marshal General to hold the writ until further notice and in consequence of these instructions the Provost Marshal General returned the writ, unexecuted, to the Registrar the same day.

7. On 14^th March 1955, the same writ was again returned to the Provost Marshal General with instructions to levy and in consequence the Provost Marshal General seized the judgment debtor's real and personal property and advertised the lands to be sold on 25^th Mary 1955, but this sale never took place as the result of a verbal request by Cates' attorney to stay the sale.

8. As the Provost Marshal General received no further instructions from the attorneys he returned to writ to them on 2^nd August 1955.

9. On 3^rd August 1955, Panchaud, the last judgment creditor delivered a writ of execution to the Provost Marshal General with instructions to levy immediately.

10. On 18^th August 1955, Cates' writ was again delivered to the Marshal with instructions to levy and on 22^nd August 1955 the real and personal property of the judgment debtor were seized under both writes and the properties were later sold; Cates, the first judgment creditor, being the purchaser of the real property, and the net proceeds paid into Court.

11. In discussing and deciding the questions of law which arise from the above facts, it would be more convenient if I should first deal with the third question as to the priority of the two writs.

12. On this point there can be no question that Cates' writ was issued before Panchaud's and that insofar as priority depends on the date of issue Cates' writ takes priority, but insofar as priority depends on the date of delivery of the writ to the Provost Marshal General with instructions to levy I am of the opinion that Panchaud's writ takes precedence.

13. The instructions given to the Provost Marshal General on 1^st February 1955, by Cates' attorneys to hold the writ pending further instructions was a clear cancellation of the original instructions to levy.

14. The position in regard to the second levy under Cates' writ is not quite so clear. The instructions given on 25^th Mary to stay the sale of the judgment debtor's land do not necessarily give rise to the inference that the instructions to levy were then withdrawn but when the Provost Marshal General having received no further instructions returned the writ to Cates' attorneys on 2^nd August he divested himself of the authority to hold or sell the property which he had seized under the writ, and when Cates' attorneys accepted the writ and took no further action for over two weeks, they must be understood to have concurred in the Provost Marshal General's action and the necessary implication is that the instructions to levy which were given on 14^th March were withdraws.

15. I would not incidentally in regard to both of these writs that while the praecipes for the writs ask that they be indorsed with instructions to levy, neither of the writs have any such instructions endorsed on them.

16. The form in the White Book contains the precedent for this endorsement to be signed by the judgment creditors' solicitors, and from my memory of practice in Bermuda I know that a similar endorsement used to be made here, and if I were the Provost Marshal General I should refuse to take action on any such writs unless they bore this endorsement.

17. But as both writs are defective in this respect neither of the competitors gains any advantage over the other on this point.

18. I next consider the question as to whether a judgment of this Court constitutes a lien on the judgment debtor's land.

19. There can be no doubt that it is a historical fact that the original settlers of these Islands regarded themselves as still being governed by the general laws of England from which they came and Lefroy's Memorials of archives relating to Bermuda give a great number of specific instances in support of this general statement.

20. Very early in the history of this colony one finds references to a Court of General Assize which tried criminal and civil cases with juries. Courts of Chancery and Exchequer were established and officers such as Sheriff, Bailiffs and Constables were appointed with functions modeled on those of their counterparts in England.

21. In the Charter of King James I which established the Bermuda Company the lands in Bermuda were granted by the Crown to the Company ‘to be houlden of us our heires and successors as of our Mannor of East Greenwich in free and common socage, and not in Capite’ (Lefroy Vol 1, p 88) and the Company was authorised to conduct the Government of these Islands ‘according to such orders, ordinances etc’ as they should establish ‘and in defect thereof in case of necessity according to the good discretion of the said Governor and officers respectively, as well in cases criminal and civil both maritime and other So always that the said Statutes ordinances and proceedings (as neere as convenientlie may bee) be agreeable to the lawes statutes government and pollicy of this our realme of Englande.’ (Lefroy Vol 1, p 95)

22. And finally on this point section 14 of the Supreme Court Act 1905, gave statutory recognition to this state of affairs when it declared ‘Subject to the provisions of any Acts which have been passed in any way altering, amending or modifying the same, and of this Act, the common law, the doctrines of equity, and the Acts of the Parliament of England of general application which were in force in England at the date when these islands were settled, that is to say, on the 11^th day of July, 1612, shall be and are hereby declared to be in force within these islands.’

23. One of the Acts of the Parliament of England which was in force in 1612 was Cap 18 of 2 and 3 Ed 1 passed in 1285, commonly known as the Statute of Westminster the Second which gave a judgment creditor the choice as to how he could recover the fruits of his judgment. Either he could ‘have a writ of fieri facias unto the sheriff for to levey the debt of the lands and goods (ie, take the produce of the lands, but not the lands themselves) or that the sheriff shall deliver to him all the Chattels of the Debtor (saving only his Oxen and Beasts of his plough) and the one half of his land, until the debt be levied upon a reasonable price or extent, (?) and if he be put out of that tenement he shall recover by a writ of novel disseisin, and after by a writ of redisseisin, if need be.’

24. This is a piece of typical English Legislation which altered the law not by declaring rights and liabilities to exist, but by changing the machinery of the law which in effect gave rights and imposed liabilities, and it has during the centuries been interpreted in the typical English way as actually conferring the rights which arise from the use of the new procedural machinery which it introduced. It has therefore been held that because the law provided the means of seizing and holding one half of the judgment debtor's lands, the judgment creditor in consequence had a lien on those lands by virtue of his judgment.

25. Although, as I have observed, English law was understood to be applicable in Bermuda and from a very early date Courts modeled on those in England were set up which in the main followed the procedure of the English Courts I can make reference to the adoption of the...