Callanan v Blake

• Jurisdiction: Ireland
• Judgment Date: 20 November 1843
• Date: 20 November 1843
• Court: Rolls Court (Ireland)

(In the Rolls).

Callanan

and

Blake.

Rolls.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

Where a suit, to the prosecution of which no obstacle existed, was dormant and apparently abandoned for several years; and it appeared that but for the lis pendens the demand should long ago have been barred by the Statute of Limitations, the Court refused an application (although made on behalf of minors) for further time to prosecute it—the case being within the provisions of the 81st General Order (of 27th March 1843).

This was an application on behalf of Lorenzo Dundas and Ellen Dundas, otherwise Callanan, his wife, for liberty to file a supplemental bill and bill of revivor, or to take such other proceedings in this cause as they might be advised for recovery of the mortgage debt in the pleadings mentioned, notwithstanding the 58th General Order; and for further time to prosecute the cause to a hearing, notwithstanding the 81st General Order. This motion was grounded on the proceedings in the cause and a joint affidavit of Dundas and wife, which stated as follows:—

On the 25th of May 1796, one Stephen Blake executed to one Joseph Callanan for a long term still subsisting, a mortgage of certain lands in the county of Galway, of which the mortgagor was seized in fee, to secure to Callanan the repayment of a principal sum of £1000 with interest at £6 per cent. The mortgagor, having paid the interest down to the year 1811, died intestate and without issue in the year 1813; when Robert Blake, his brother and heir, possessed himself of the mortgaged lands. The mortgagee died in 1812, having by his will devised and bequeathed all his property (subject to certain legacies for younger children which were paid soon afterwards), to his eldest son John Callanan, and appointed too executors who proved the will.

In June 1818, the original bill in this cause was filed by John Callanan the son, and Francis Ferrall, the surviving executor of Joseph, against Robert Blake, the heir and personal representative of Stephen, and others, stating the mortgage of 1796,—that the principal sum thereby secured, together with £400 interest, was then due thereon, and praying an account and foreclosure and sale. Robert Blake was served with subpæna, but never appeared in the cause. Process to a serjeant was entered against him; and in December 1818, there was an order for a receiver on process. In 1819, as the plaintiffs were about setting down the cause for a decree on sequestration, Robert Blake died; having made his will, whereby he devised one portion of the mortgaged lands to Giles Eyre Blake (who was his heir-at-law) for life, with remainder to his first and other sons in tail; and the residue of the mortgaged lands to his sister-in-law, Jane Blake, and her heirs; and he appointed her executrix and residuary legatee. She, by deed bearing date the 28th of October 1819, conveyed the lands devised to her, in trust for the benefit of her second son Stephen Blake, reserving to herself a power to charge them with the sum of £1000. The plaintiffs proceeded to revive the cause and bring before the Court Giles Eyre Blake, Jane Blake and Stephen, who were duly served with process; and by an order of the 21st of May 1821, the cause was revived against them. None of them answered: an attachment was issued against Jane for want of an answer; process to a Serjeant against Giles, and to a commission of rebellion against Stephen. Soon afterwards the suit was again abated by the death of Francis Ferrall, one of the co-plaintiffs; and in 1825, the surviving plaintiff John Callanan, having obtained administration de bonis non to his father, filed a bill of supplement and revivor, to which Giles Eyre Blake appeared in April 1825, but afterwards in the same year the...