Archer v Leonard

• Jurisdiction: Ireland
• Judgment Date: 25 May 1863
• Date: 25 May 1863
• Court: Rolls Court (Ireland)

Archer

and

Leonard.

Rolls.

CHANCERY REPORTS,

BEING A SERIES OF

CASES ARGUED AND DETERMINED

IN THE

HIGH COURT OF CHANCERY,

COURT OF APPEAL IN CHANCERY,

Rolls Court, Landed Estates Court,

AND

COURT OF BANKRUPTCY AND INSOLVENCY.

(In the Rolls.)

This was a suit for the administration of the assets of John Leonard deceased. The matter was referred to Master Brooke, under the 15th section of the Court of Chancery (Ireland) Regulation Act 1850.

The petitioner sued as administrator to his wife, in respect of a debt due to her by the intestate: but he filed a charge, claiming the amount of six bills of costs due to himself. Four of the bills of costs were for business done more than six years before the filing of the petition. The Statute of Limitations (16 & 17 Vic, c. 113, s. 20) was set up by the respondent as a defence; but the Master held that the notices served by the respondent's solicitor [stated in the judgment, infra, pp. 271–72] took the claim out of the operation of the statute, and declared the petitioner entitled to all the bills of costs as against the assets of the intestate.

The respondent appealed.

Argument.

Mr. Sherlock and Mr. Pilkington, in support of the appeal, argued, first, that the alleged acknowledgment contained in the notices was not signed by the party chargeable; and the 16 & 17 Vic., c. 113, s. 24 (Common Law Procedure (Ireland) Act, in analogy to Lord Tenterden's Act (9 G. 4. c. 14), enacted that, in actions grounded upon any simple contract, no acknowledgment or promise shall be deemed sufficient evidence of a new or continuing contract, to take any case out of the operation of the provisions of that Act, in relation to the limitation of actions, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing, to be signed by the party chargeable thereby; and the Mercantile Amendment Act (19 & 20 Vic., c. 97, s. 13, does not apply to debts antecedent to the statute. Secondly, that the notice did not contain a sufficient promise to take the debt out of the operation of the statute 16 & 17 Vic., c. 113, s. 20: Tanner v. Smart (a); Hyleing v. Hastings (b); Spong v. Wright (c); Francis v. Hawhesly (d); Buckmaster v. Russell (e); Cockerell v. Sparkes (f); Thompson v. Waithman (g); Mills v. Fowkes (h); Tippets v. Heane (i).

Sergeant Sullivan, Mr. Carleton, and Mr. Medde, in support of the Master's order, argued that the notice contained a promise and undertaking to pay the costs when taxed: Philips v. Philips (k); Smith v. Thorne (l); Everett v. Robertson (m); Hayden v. Williams (n); Holmes v. Smith (o); Sidwell v. Mason (p); Waters v. The Earl of Thanet (q); Williamson v. Naylor (r); Hill v. Walker (s); Smith v. Poole (t); Collis v. Stack (u); Hart v. Prendergast (v); Maunsell v. Hodges (w). That the acknowledgment was subsequent to the Mercantile Amendment Act, and therefore came within the express words of the 13th section of that Act; that, in reference to the 16 & 17 Vic., c. 163,

ss. 24 and 27, an acknowledgement by an agent of the party chargeable thereby, duly authorised to make such acknowledgment or provision, shall have the same effect as if such writing had been signed by such party himself.*

Mr. Sherlock and Mr. Pilkington, in support of the appeal

Sergeant Sullivan, Mr. Carleton, and Mr. Meade, in support of the Master's order

Judgment.

The Master of the Rolls.

This is a suit to administer the assets of John Leonard deceased, who died on the 10th of March 1858. The respondent is his administrator. The petitioner was married to a daughter of the said John Leonard; and the claim in the petition was in respect of a sum due by John Leonard to his daughter, who is dead, and on which no question arises. The petitioner took out adminstration to his wife. The case having been referred to W. Brooke, Esq., the Master in the matter, under the 15th section of the statute, the petitioner filed a charge on foot of certain bills of costs, which were not mentioned in the petition, and which he claimed to be due to him as attorney for John Leonard. I suppose the reason the claim for costs was not mentioned in the petition was, that the petitioner claimed the demand in the petition as personal representative of his wife; and it may have been' thought that

some question of misjoinder would have arisen if he had joined a demand due to him in his own right. The bills of costs were in fact seven in number, although made up into one bill; and the date of the last item in each of the first four bills was more than six years before the filing of the petition. The respondent admits his liability as administrator of John Leonard to the fifth, sixth and seventh of those bills; but relies on the Statute of Limitations as a bar to the first four bills.

The Master has, by his order signed the 6th of February 1863, declared the petitioner “entitled as against the assets of the said John Leonard deceased, to the miscellaneous costs of the said John Leonard, in the said petitioner's charge filed in this matter mentioned”—that is, that the petitioner is entitled to the seven bills of costs.

A motion has been moved on the part of the respondent by way of appeal against that declaration in the order; and although the notice of motion is obscurely worded, the question raised thereby is, that the four first of those bills of costs are barred by the Statute of Limitations.

On the 21st of April 1862, a notice was served on the respondent, dated the 19th of April 1862, and which notice was signed by the petitioner, which notice was as follows:—

“In the Matter of the Assets of John...