Burke v Killikelly

• Jurisdiction: Ireland
• Judgment Date: 13 May 1850
• Court: Court of Chancery (Ireland)
• Date: 13 May 1850

Chancery.

BURKE

and

KILLIKELLY.

Barrett v. BerminghamUNK 1 Ir. Eq. Rep. 417.

Doe d. M'Ilwaine v. Magill 1 Hud. & Br. 396, n.

Abbott v. StrattenENRUNK 3 Jo. & Lat. 603; S. C. 9 Ir. Eq. Rep. 233.

Smith v. ChichesterUNK 12 Ir. Eq. Rep. 579.

O'Brien v. ScottUNK 11 Ir. Eq. Rep. 63.

Robinson v. TongeENR 3 P. Wms. 398.

Hickey v. HayterENR 6 T. R. 384.

Steele v. RorkeENR 1 Bos. & Pul. 307.

Hall v. Tapper 3 B. & Adol. 655.

Smith v. O'Reilly 1 Cr. & Dix, 161.

Jeffreson v. MortonENR 2 Wms. Saund. 9, c note.

Ashley v. PocockENR 3 Atk. 208.

Morrice v. Bank of EnglandENR Cas. temp. Talbot, 217; S. C. 3 Swanst. 573; 2 Bro. P. C. 465, Toml. ed.

Simpson v. TaylorUNK 7 Ir. Eq. Rep. 182.

Robinson v. Harington Powell on Mortgages, 515.

Borough v. WilliamsonUNK 11 Ir. Eq. Rep. 1.

Landon v. FergusonENR 3 Russ. 349.

Hickey v. HayterENR 6 T. R. 384.

Steele v. RorkeENR 1 Bos. & P. 307.

Hall v. Tapper 3 B. & Adol. 655.

Braithwaite v. Watts 2 Cr. & Jer. 318.

Doe d. M'Ilwaine v. Magill 1 Hud. & Br. 396, n.

Robinson v. Harrington 1 Powell on Mortgages, 515.

Abbott v. StrattenENRUNK 3 Jo. & Lat. 603; S. C. 9 Ir. Eq. Rep. 233.

Smith v. ChichesterUNK 12 Ir. Eq. Rep. 519.

Hickey v. HayterENR 6 T. R. 384.

Hickson v. CollisUNK 10 Ir. Eq. Rep. 447.

Carroll v. D'ArcyUNK 10 Ir. Eq. Rep. 321.

Borough v. WilliamsonUNK 11 Ir. Eq. Rep. 1.

Hickey v. HayterENR 6 T. R. 384.

Borough v. WilliamsonUNK 11 Ir. Eq. Rep. 10, 17.

Barrett v. BirminghamUNK 1 Ir. Eq. Rep. 417.

CHANCERY REPORTS, BEING A SERIES OF CASES ARGUED AND DETERMINED IN THE HIGH COURT OF CHANCERY AND ROLLS COURT. BURKE v. KILLIKELLY. (Chancery.) Tins was a supplemental suit against D. M. Killikelly and Thomas Gillespie and Eliza his wife for the purpose of binding them by the proceedings in the cause of Burke v. Concannon, and thus to make title to a purchaser of lands directed to be sold by the decree of the 20th of June 1846 in the latter cause. The plaintiff was assignee of a judgment for £2000, obtained against Henry Concannon. The defendant Killikelly was also assignee of a judgment against the same conuzor, and the defendant Eliza Gillespie was administratrix of Thomas O'Reilly, who was also assignee of a judgment against the same conuzor. The plaintiff filed his original bill in 1817 for the administration of the assets of Henry Concannon, for a sale of his real estate, and to set aside a voluntary deed of settlement of the real estate, executed upon the 31st of August 1805, as fraudulent and void against the creditors of Henry Concannon. After various proceedings and numerous abatements a decree for a sale was obÂtained on the 20th of June 1846. A person named John J. Cruice, on the 2nd of December 1812, filed a bill to raise the amount secured by a judgment (which was that subsequently assigned to the defendant Killikelly), and obtained a decree for an account in 1817. In 1820 he assigned the judgment 2 CHANCERY REPORTS. and decree to the defendant Killikelly, who took no proceedings until 1837, when he filed a bill to obtain the benefit of the decree of 1817, and for a sale of the lands. A decree for a sale was pronounced on the 27th of January 1841, and in the same month a receiver was appointed in that cause, who, up to the hearing of the present cause, still continued in receipt of the rents. Thomas O'Reilly was the only reported creditor in Killikelly v. Concannon. No further proceedings were taken in that cause to enforce a sale, nor was the deed of 1805 impeached, or the necessary parties brought before the Court to effect a sale. Both Killikelly and O'Reilly were cognizant of the proceedings in Burke v. Concannon, and had been required by notice to prove their demands under the decree in that cause, and also had been served with a notice similar to that in Barrett v. Bermingham (a), calling upon them to enter into a consent to be paid according to their priority, and to be bound by the proceedings in Burke v. Concannon, which notices were proved in the present cause. The judgments vested in the plaintiff and in the defendant Gillespie were both entered on the 15th of December 1810. The judgment vested in the defendant Killikelly was entered on the 17th of December 1810. Henry Concannon, the debtor, had died subseÂquently to the first day of Michaelmas Term 1810 and previously to the entry of any of the three judgments ; they were, however, all three entered in pursuance of warrants of attorney for that purpose executed by him in his lifetime. The defendant Killikelly in this cause relied on the Statute of Limitations in bar of the plaintiff's demand, and also alleged that it had been paid off. A decree to account was pronounced in November 1848, by which it was referred to the Master to take an account of the sums due to the plaintiff...