Barry v Barry

• Jurisdiction: Ireland
• Judgment Date: 30 January 1891
• Date: 30 January 1891
• Court: Queen's Bench Division (Ireland)

Q. B. Div.

Before O'BRIEN, HOLMES, and GIBSON, JJ.

BARRY

and

BARRY

Curtis v. CottingwoodENR 1 Vent. 29.

Rook-wood's Case Cro. Eliz. 164.

Dutton v. PooleENR 1 Vent. 318.

Braithwaite v. SkinnerENR 5 M. & W. 313.

Gregory v. HarmanUNK 1 M. & P. 209.

Ewer v. JonesENR 2 Salk. 415.

Topham v. Moore-craftENR 8 E. & B. 972.

Hart v. MinorsENR 2 Cr. & M. 700.

Williams v. LeeENR 3 Atk. 223.

Highway Board v. Harrow District Gas Co.ELR L. R. 10 Q. B. 92.

Davis v. MorganENR 4 B. & C. 8.

Willatts v. Kennedy ENR 8 Bing. 5.

Barrell v. TrussellENR 4 Taunt. 117.

Twedle v. AtkinsonENR 1 B. & S. 393.

M'Coubray v. ThompsonUNK Ir. R. 2 C. L. 226.

Longbottom v. LongbottomENR 8 Exch. 203.

Messenger v. AndrewsENR 4 Russ. 478.

Gregg v. CoatesENR 23 Beav. 33.

Account stated — Promise by legatee of chattel real, on being let into possession, to pay pecuniary legacy charged thereon — Personal liability — Contract — Consideration.

VOL. XXVIII.] Q. B. & EX. DIVISIONS. 45 took of the evidence as regards Mr. O'Brien Dalton ; and that, as Ex. Div. to him, I should have found myself coerced to arrive at the same 1890. Ex parte conclusion. say nothing as to the effect of the evidence against n 1./ALTON. the other persons who have been convicted ; but having regard to the mass of evidence (to a portion only_ of which I have referred), I should have held myself bound to arrive at the conclusion that Mr. O'Brien Dalton was a party to the conspiracy. There must, therefore, be no rule on Mr. Healy's application. ANDREWS and MURPHY, Th., concurred. Solicitors for the prisoner : V. B. Dillon 81, Co. BARRY v. BARRY (1). Q. B. Div. 1891. Account stated-Promise by legatee of chattel real, on being let into possession, Jan. 27, 30. to pay pecuniary legacy charged thereon-Personal liability-Contract Consideration. A farmer, upon the marriage of his eldest son J., assigned part of his farm, held under a yearly tenancy, and farming stock, in trust for J., but continued until his death to reside on and manage the farm, I. and the other members of his family residing with him. By his will, which was duly admitted to proÂbate, J.'s father bequeathed to J. the whole of the farm, charged with certain legacies, including £20 to E. After the testator's death, and before grant of probate, his executors, as one of them deposed, asked J., in presence of E., -would he " possess" and pay the legacies, to which J. assented, and went into possession of the whole farm. In an action by E. against J. for the amount of his legacy as due on an account stated, the jury found that J. promised to pay the sum claimed in consideration of being allowed by the executors to take and keep his father's property under the will, subject to the legacies: Reid, that there was sufficient consideration for J.'s promise to pay the legacy ; that a personal action lay for the amount against J. ; and that E. was entitled to judgment. (1) Before O'BRIEN, HOLMES, and GIBSON, JJ. 46 LAW REPORTS (IRELAND). [L. It. 1. Q. B. Div. ACTION to recover £22 Hs. on accounts stated, and inte 1891. rest. The following particulars were indorsed on the writ of Legacy, payable by the defendant to the plaintiff, under the will of John Barry, deceased (who died on the 21st December, 1885), dated the 13th December, 1885, proved on the 12th May, 1890, . . . . • . . . . . £20 0 P 21st December, 1886, to 6th June, 1890.-Interest thereon to this date, at 4 per cent. per annum, . 2 11 0 £22 11 0 The defendant having entered an appearance the plaintiff moved for judgment, under Gen. Ord. XIII., which motion being refused no statement of claim was delivered. The defence was a traverse. The case was tried before Johnson J. and a common jury on the 29th November, 1890. The evidence material to this report, in the view taken by the Divisional Court, was as follows : The plaintiff Edward Barry and the defendant, his elder brother, John Barry, were sons of John Barry, senior. By an agreement dated the 8th February, 1877, made between John Barry, senior, of the one part, and John Sheehan of the other part, reciting that the said John Barry, senior, held part of the lands of Lyredane, containing 100 acres, as a yearly tenant, at the yearly rent of £56 4s., and also...