NOVEL POINT

Dominion, Volume 24, Issue 209, 1 June 1931, Page 11

NOVEL POINT

Mortgagors Relief Act MEANING OF PHRASE Judge’s Interpretation An interpretation of the words “the issue of any progress of execution,” as used in the Mortgagors Relief Act, 1931, has been given by Mr. Justice MacGregor in a reserved decision on an application made by William Hewitt Wakefield (Mr. Garbett) to set aside a charging order absolute issued by Alexander William Scott and another (Mr. Seott) against the interest of Wakefield in “certain parcels of land.” His Honour said the application raised a question of some importance and difficulty as to the precise scope and effect of section 4 of the Act. Outlining the facts of the case, his Honour said that on February 1, 1926, the plaintiffs advanced to the defendant the sum of £530 on mortgage of a piece of land at interest payable quarterly. Tile principal sum became due on November 9, 1928, and was not then paid. No interest was ever paid under the mortgage. On April 9, 1931, the plaintiffs sued the defendant under the covenants contained ’in the mortgage for the respective sums of £530 principal and £267 interest, both then overdue. No defence was filed, and on April 29 the plaintiffs entered judgment by default against the defendant for the sum of £797/9/10 and £l7/12/- for costs. On May 4 plaintiffs issued and registered the charging order absolute now in question against the defendant’s interests in certain parcels of land, which stood charged with payment of the amount of the above judgment—£Bls/1/10. On May 6 the plaintiffs caused to be served on the defendant a notice claiming to “issue execution” in pursuance of the judgment. The notice was apparently given in order to comply with the terms of section 5 of the Mortgagors Relief Act, 1931, which was passed on April 17. The defendant now contended that the notice was out of time. He claimed that the plaintiffs to issue the charging order in the present case was “to issue or to be concerned in the issue of any process of execution of any judgment” within the meaning of section 4 (1) (b) of the Mortgagors Relief Act. The question to be decided, his Honour said, was, in effect, the precise meaning of the words “the issue of any process of execution.” It was clear that in England the word “execution” might be used in a narrow sense, which would exclude charging orders, or in a wide sense, which would include them! He had come to the conclusion that in the present case the word would have to be construed in its narrow sense. As the point involved was a novel one, he would grant leave to appeal from the order, if leave should be required.