Union Bank of Australia v Harrison, Jones and Devlin Ltd [1910] HCA 44

Union Bank of Australia v Harrison, Jones and Devlin Ltd [1910] HCA 44 - HCA 1910 case summary — Zoe

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to be parties: that there may be a complete decree between all parties, having material interests: but that, being a general rule, established for the convenient administration of justice, must not be adhered to in cases, to which consistently with practical con- venience it is incapable of application. Accordingly there are several well known cases of exception; and, without going through them all, I will mention one instance of not applying it to persons, having valuable interests in real estate: viz., where it has been held sufficient to bring before the Court the first person, having an estate of inheritance ; though it cannot be denied, that, persons, having present, immediate, valuable, interests in the same real estate, may become most deeply affected by what is done here in their absence. The same principle ina great variety of cases has obliged the Court to dispense with the general rule as to persons, out of its jurisdiction; and there are many instances of justice administered in this Court in the absence of those, without whose presence, as parties, if they were within the jurisdiction, it would not be administered ; as it obviously cannot be so completely, as if all persons interested were parties: but the Court does what it can :" and again (1): - "So as to partnerships: the Court will settle the account between those parties who are before it: and do all possible justice. The principle being founded in conveni- ence, a departure from it has been said to be justifiable, where necessary ; and in all these cases the Court has not hesitated to depart from it, with the view by original and subsequent arrange- ment to do all, that can be done for the purposes of justice ; rather than hold, that no justice shall subsist among persons, who may have entered into these contracts." This judgment was cited and relied upon by Lord Maenaghten in Duke of Bedford v. Ellis (2) and by myself in Barnes v. Sharpe (3). See also Williams v. Salmond (4). The old rule has since been frequently relaxed by Statute in particular cases.

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to the execution creditors, the now appellants, the personal estate of the testator, including the equity of redemption to the live stock and chattels? The Chief Judge in Equity has answered this ques- tion in the affirmative, and I think correctly. Although in actions against executors all should in strictness be sued, yet the non-joinder of any could only be the subject of a plea in abate- ment by an executor defendant. It was never a bar to the action, Where the non-joinder of a defendant is pleaded in any action, the Common Law Procedure Act 1899 makes it neces- sary to state in the plea that the person not joined is resident within the jurisdiction of the Court; otherwise the non-joinder canrot be objected to. Here the declaration as amended alleges him to be outside the jurisdiction, and there is no plea at all. John McGregor therefore waived the objection he could have raised by dilatory plea. The appellants' judgment against him is not open to objection on that score; and the judgment by default was of course an admission of assets: Erving v. Peters (1). The action is brought for a debt due from the testator, and therefore the judg- ment is against his effects in the hands of the executor: (2). In Further vy. Further (3) it was held, and it is still law, that a recovery against one administrator shall bind all; and a joint administrator stands on the same footing as a co-executor: Jacomb v. Harwood (4). The judgment must be satisfied, though recovered against one executor only out of several. This seems to proceed on the principle, stated by Toller, at p. 133, that an executor "is not entitled in his own right, but in autre droit, the right of the deceased. He is entrusted merely with the custody and distribution of the effects." The inclusion of the other executor or executors in the action would give the estate no greater protection. As the judgment is to be satisfied out of the goods of the testator, the writ of fieri facias would properly direct levy of the effects which were of the testator at his death, in the hands of the executor sued, to be administered. This writ, however, commands levy to be made of the effects, lands, equities of redemption and equitable interests which were of the deceased at the time of his death "in the hands of John McGregor and

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to do so, and then of course so far only as the value of the assets by descent would extend. When it became lawful to dispose of lands by will, a debtor, even after binding his heirs by specialty, could devise his land to a person other than the heir, and so frustrate the operation of his deed. Except in the cases of tes- tamentary trusts and charges for the payment of debts, this iniquitous state of the law was endured till the Statute of 3 Wm. & Mary ec. 14 made void all devises of land as against creditors by specialty in which the heirs were bound, excepting devises for the payment of debts, and in substance made lands liable in the hands of devisees in the same way as in the hands of the heir named in the ancestor's specialty. Whether the action was against the heir as so named (in which case the amount of the judgment was to be levied on the assets by descent) or against the devisee under the Act of William and Mary, for satisfaction out of the lands devised, it lay against the one or the other simply because the legal estate in the lands to be made liable was vested in that person. By the Statute 54 Geo. IIL, c. 15, sec. 4, 'real estate of debtors in New South Wales was made assets for the satisfaction of all just debts of any kind, and made subject to the like remedies and process for seizing and selling it in satisfaction of debts as personal estate. But this did not vest the land in the executor so as to make it legal assets in his hands. A creditor was bound after the Statute, as before it, to proceed in respect to the real estate against the person in whom the property was vested, that is, the heir or devisee: Bullen v. dBeckett (1), decided in 1863. A plaintiff had obtained judgment against an executor for his testator's debt and had sued out a fieri fucias ; it was held that, notwithstanding the enactment, the sheriff could not under this writ sell and convey to a purchaser land of the testator, as the land did not pass to the executor by sec. 4 so as to become legal assets in his hands. So it remained necessary for a creditor desiring to obtain a satisfaction of his debt out of a testator's estate to bring two actions, if the personal estate was insufficient to discharge the debt: one against the executor so as to secure execution upon the personalty, the other against the heir or the devisee to give him recourse to the realty, joining both heir and

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entire interest in the property. Each can alienate any asset ; and in this respect their interest differs from that of joint tenants, where the grant of one operates only on the share of the grant- ing party (Platt, Leases, 367). Each executor can release a debt, can surrender a term, can confess judgment, can attorn tenant (see notes to Anon. (1). The executors cannot partition a chattel, whereas joint tenants can. In Simpson v. Gutteridge (2) it was pointed out that where one of several joint tenants exe- cutes a deed it passes only the share of the party executing ; but that a gift, or sale, or surrender, or payment, or release, or judg- ment confessed by one of two executors is effectual. In that case only one of the two executors had executed the assignment of the term ; but it was held that, the executors not being entitled in moieties, not being joint tenants, each having the entire interest, the assignment operated on the whole term (see also Jacom) v. Harwood (3)). The law on the subject is well summed up in Wentworth's Office of Executor, 14th ed., p. 213 : - * Each executor hath the whole of the testator's goods and chattels, be they real or personal, and each may sell or give the whole. One of them cannot give nor release to the other his interest ; and if he do, it is void, and he who releaseth shall have still as much interest as he to whom he releaseth, because each had the whole before. Upon this reason, long since, when one of the two executors released but his part of the debt, it was held that the whole was discharged. And so, if one executor grant his part of the tes- tator's goods, all passeth, and nothing is left to the other; for that each hath the whole, and there be no parts or moieties between executors. Therefore, also, though a lease for 1,000 years, of 1,000 acres of land, come to two executors or more, no partition or division can be made between them, because it is not between them as between joint lessees of land, where each hath but a moiety in interest, though possession of or through the whole."

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the stockholders in the place of the testator, and therefore they had to be treated as any ordinary joint holders, not as exeentors; _ Barton v. London and North Western Railway Co. (1); Barton v. North Staffordshire Railway Co. (2). Ihave dealt with this subject, the nature of executors' property in personal assets, at what may seem unnecessary length, in order to show that the words "as joint tenants," used in see. 15 of the Probate Act 1300, must either be treated as used in a general, popular sense, as dis- tinguished from the strict technical sense, or else must be treated as used by mistake. Iam aware that in one case Lord Halshury L.C., when delivering a dissenting judgment, used language which seems, on first reading, to favour a quaint doctrine of infallibility of the legislature in matters of law. In Commissioners jor Special Purposes of the Income Tax v. Pemsel (3) his Lordship said: "I do not think it is competent for any Court to proceed upon the assumption that the legislature has made a mistake, Whatever the real facts may be, I think a Court of Law is bound to proceed upon the assumption that the legislature is an ideal person that does not make mistakes." But the real meaning of these words, so flattering to the "ideal person," must, I think, be found in their application, in the sentence which follows: "It must be assumed that it has intended what it has said." That is the whole point - the intention. We must find the intention from the words used; and we have no right to refuse to give effect to the intention, even if we are convinced that the legisla- ture acted under a mistake as to the existing law. There is indeed ample authority for saying that the words of an Act are by no means conclusive as to the existing state of the law; and ample authority even for eliminating words which would defeat the real object of the Act: Mollwo, March & Co. y. Court of Wards (4); Salmon v. Duncombe (5); per Lord Cranworth in Mitcalfe v. Hanson (6); Ex parte Lloyd (7); per Patteson J., in Green v. Wood (8); per L.C.J. Cockburn in Shrewsbury v. Scott (9); per Willes J. obiter, in Mills v. Mayor of Colchester (10); Maxwell, 4th ed., pp. 355, 380, 462, et seq.

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Judgment (203 paragraphs)