Bernard John Daly v Patrick Kirwan

• Jurisdiction: Ireland
• Judgment Date: 15 March 1847
• Date: 15 March 1847
• Court: Rolls Court (Ireland)

Rolls.

BERNARD JOHN DALY

and

PATRICK KIRWAN.

Mitf. 289; Harris v. PollardENRENR 3 P. Wms. 348; S. C. 2 Eq. Ca. Abr. 2.

Sibree v. TrippENR 15 M. & W. 23.

Williams v. PriceENR 1 Sim. & St. 581.

Dartnell v. Taylor 1 Ll. & temp. Plun. 247.

Hatchell v. Lord Cremorne Ll. & g. temp. Pl. 236.

Saunders v. Leslie 2 Ball & Bea. 509.

Loftus v. Swift 2 Sch. & Lef. 642.

Whitebead v. Brockhurst 1 Br. C. C. 404; S. C. 2 Ves. & B. 153 n.

Cumber v. WaneENR 1 Str. 426.

Davis v. GydeENR 2 Ad. & El. 623.

Worthington v. Higley 3 Bing. N. C> 454.

Curlis v. Rush 2 Ves. & B. 416.

Beresford v. ChambersUNK 5 Ir. Eq. Rep. 482.

Ferrall v. BoyleUNKENR 1 Ir. Eq. Rep. 391; S. C. 12 Cl. & Fin 740.

owen v. CurzonENR 2 Vern. 237.

Turner v. DavisENR 2 Saund 148.

Blake's caseUNK 6 Rep. 44 a.

Harris v.PollardENR 3 P. Wms. 348.

Browne v. PerkinsENR 1 Hare, 564.

Claridge v. Hoare 14 Ves. 66.

Forbes v. SkeltonENR 8 Sim. 345.

Sibree v. TrippENR 15 M. & W. 23.

Worthington v. WigleyENR 3 Bing. N. C. 454.

Fowell v. Forrest 2 Saund. Rep. 5th ed. 47 s. & 48.

The King v. EllisENR 1 price, 23.

Player v. BandyENR 10 Mod. 26.

Turner v. Davies 2 Saund. Rep. 148.

Ognel v. RandalENR Cro. Jac. 29.

Curtis v. RushENR 2 Ves. & Bea. 416.

Hatchell v. Cremone Ll. & G. temp. Plunket, 236.

Dartnell v. Taylor Ib. 247.

Saunders v. Leslie 2 Ball & Bea. 509.

312 CASES IN EQUITY. BERNARD JOHN DALY v. PATRICK KIRWAN. decreed to pay the same. Where mat- ter of defence That after various proceedings being had in the said cause, a arises subse- decree to account was pronounced on the 9th of November 1839, quently to a decree in a whereby it was referred to the Master to take an account of the cause which afterwards be- personal estate of the said Martin Kirwan, deceased, and of his comes abated, debts and legacies, and further to ascertain the proportions due to it may be pleaded to the the plaintiffs respectively. That the Master made his report on the bill of revivor, and it is not necessary to file a cross bill to get the advantage of it. A obtained a decree directing the defendant to pay him a sum of money. A died, and the plaintiff as administrator filed a bill of revivor, to which the defendant pleaded an agreement with A, that if he procured B to execute his bond and warrant of attorney to enter judgment for part of the money, and paid the remainder, A would accept the same in full satisfaction and discharge of the sum decreed. That B executed his bond and warrant to A, on which judgment was entered, and the defendant, his son, executed their joint and several bond and warrant to B, on which j udgment was also entered ; that the defendant paid the balance of the sum decreed, which bond and warrant of B, and balance, A accepted in full satisfaction and disÂÂcharge of the sum decreed. The plea further stated, that the judgment entered against the defendant and his son had been assigned by B ; that the defendant had been compelled to pay the amount to the assignee, and the judgment bad been satisÂÂfied. That A. had assigned the judgment against B in trust for his daughters, and afterwards by his will bequeathed it on the same trust. The plea then averred that A thereby and otherwise recognised and affirmed the said agreement, and admitted that the judgment against B had been substituted for the debt decreed. Held lst.-That the covenants in the pleas with respect to the assignment of the judgments being immaterial did not make the plea double. 2ndly.-That the agreement stated in the plea was a valid defence in equity, although the debt was by decree, and the agreement by parol. 3rdly.-That the defence was a proper subject for a plea, and that a cross bill need not be filed to raise it. CASES IN EQUITY. 313 19th of June 1840, and thereby found that the said Martin Kirwan was at the time of his death possessed of personal estate sufficient to pay his debts and legacies, and that the entire of his personal estate came to the hands of the defendant Patrick Kirwan. And the Master further found that there was due to the said John Daly, as administrator of Julia Daly, for principal and interest on foot of her one-fifth share of said sum of 1500, the sum of 693. 5s. And the Master further found the sums due to the other plaintiffs in respect of their shares respectively of the said sum of 1500. That the said cause came on to be heard on report and merits on the 15th of November 1840, when the report was confirmed ; and it was decreed that the said John Daly, as such administrator as aforesaid, was entitled to the said sum of 693. 6s. ; and the other plaintiffs to the sums reported to them, together with their costs, and that the defendant Patrick Kirwan should pay the same. The bill of revivor then stated, that soon after the said final decree, the defendant Patrick Kirwan paid to the said Bridget Kirwan and Martin Kirwan the sums reported and decreed to them respectively, together with their costs, but the said Patrick Kirwan did not pay the said John Daly the amount decreed to him. That John Daly died in the month of January 1844, withÂÂout having been paid the said sum of 693. 5s. or any part thereof, and that the plaintiff since the death of the said John Daly had obtained administration de bonis non to the said Julia Daly, and, as such administrator of the said Julia Daly, was entitled to the said sum of 693. 55. The bill then prayed that the suit might stand revived. To this bill the defendant put in a plea, which stated that the said John Daly, being such administrator as aforesaid, and soon after said final decree of the 15th of November 1840, that is to say, on the 14th...