Carroll v Darcy

• Jurisdiction: Ireland
• Judgment Date: 29 April 1847
• Date: 29 April 1847
• Court: Court of Chancery (Ireland)

Chancery.

CARROLL

and

DARCY.

Berrington v. Evans Yo. & Col. Exch. 434.

Hickson v. CollisUNKENR 6 Ir. Eq. Rep. 524; S. C. 1 Jo. & Lat. 94.

Sterndale v. HanksonUNK 3 Ir. Eq. Rep. 390.

Vincent v. Wellington long. & Tow. 456.

St. John v. BoughtonENR 9 Sim. 219.

Geraghty v. Abbott 8 Ir. Law. Rep. 60.

Blake v. DarcyENR San. & Sc. 493.

Knox v. KellyUNK 1 Dru. & Wal. 542.

Stewart v. CottinghamUNK 6 Ir. Eq. Rep. 248.

Collyer v. Graves Not reported.

Davis v. Strathmore 16 Ves. 419.

Le Neve v. Le NeveENR 3 Atk. 646.

Forshall v. Coles App. 53.

Garnett v. ArmstrongUNK 5 Ir. Eq. Rep. 533.

Toulmin v. SteereENR 3 Mer. 210.

Maroribanks v. HovendenUNK 6 Ir. Eq. REp. 238.

Sterndale v. HankinsonENR 1 Sim. 393.

Sterndale v. HankinsonENR 1 Sim. 393.

Berrington v. Evans 1 Young & Col. Exch. 434, 440.

Lord St. John v. BoghtonENR 9 Sim. 219; pp. 223, 224.

Holland v. Clark 1 Y & Col. C. C. 458.

Whippy v. HillaryENR 3 B. & Ad. 399.

Routledge v. RamsayENR 8 Ad. & El. 221.

Philips v. PhilipsENR 3 Hare, 300.

Courtenay v. WilliamsENR 3 Hare, 550.

Hickson v. CollisUNKENR 6 Ir. Eq. REp. 524; S. C> Jo. & Lat. 94.

CASES IN EQUITY. 321 1847. Chancery. CARROLL v. DARCY. (Chancery) April 21, 29. May 10. Tuts was a creditor's suit instituted by a judgment creditor of John The construe-Darcy deceased, for the administration of his real and personal tion applied to Lord Tenter- estates, and praying the usual accounts. John Darcy had been den's Act, that seised of several real estates. He died in October 1839, having by an acknow- ledgment, to his will devised the estates, subject to certain legacies, to his son take a simple contract debt Hyacinth Darcy, with remainders over. out of the In Hilary Term 1819 John Kelly recovered a judgment against operation of the Statute of John Darcy. John Kelly died in 1821, and his executors S. D. Limitations, Kelly and Patrick Kelly revived the judgment in April 1822. must amount to a promise to In 1820 John Darcy executed a marriage settlement, by which p - Fay, is not ap e to he charged his estates with a jointure of 800 a-year and L14,000 kn plicablowiedg- - ac ments for younger children's portions. He also executed mortgages for statute 3under & 4 large sums to persons of the name of Eyre in 1836 and 1839. There W. 4, c. 27, s. 40 ; and were besides a great number of judgments affecting his estates. therefore The questions in this cause all arose between the parties entitled letters recog- to Kelly's judgment and the claimants on foot of these last-mentioned nising the incumbrances. The first was on the statute of Limitations, which judgment debt, though qu all was set up against Kelly's judgment by the discharges in the fled by an offer Master's office, and in answer to which two points were made- payment of from a fund first, that there was a sufficient acknowledgment to keep the debt stated to be the only one avail- alive, and secondly, that the claimants under Kelly's judgment able, Held, were entitled to the benefit of this suit from its commencement, a sufficient acknowledg- which was within twenty years of 1822. The material facts on ment under the which these points depended were the following :- latter Act. Sb- In 1836 the executors of John Kelly had equitably assigned the doctreminele ofT he Sternd,ale v. Hankinson, by which a creditor, proving under a decree, may avail himself of the pendency of the suit to save his demand from the Statute of Limitations, applies to suits instituted after as well as before the passing of statute 3 & 4 W. 4, c. 27. The circumstance, that a judgment creditor has, pending the suit, proceeded by sci. fa., is not such a repudiation of the suit by him as will disentitle him from relyÂÂing on this doctrine. A judgment in case carries interest under statute 3 & 4 Vic. c. 105, s.26, even as against creditors whose charges are prior to the passing of that Act. A judgment less than twenty years old when the statute 9 G. 4, c. 35, was passed, and not redocketed within five years after the Act, ortwenty years after its entry, is, as against purchasers both before and since the Act, but claiming under deeds within twenty years of the entry of the judgment, valid by the operation of statute 7 & 8 Vic. c. 90, s. 7, whatever be the true construction of the 2nd section of the RedocketÂÂing Act. The practice of giving priority to costs of resisting claims in creditors' suits obÂÂserved on. 322 CASES IN EQUITY. 1847. judgment to Robert Darcy and Robert Fahy for family purposes. Cam_y. Messrs. Ridge and M'Namara were solicitors acting for the persons CARROLL beneficially entitled to the judgment for some time previous to 1839. V. Mr. Kilkelly was from 1836 to the time of John Darcy's death in DARCY. 1839 his general solicitor, and for a short time after that was the Statement. solicitor of Hyacinth Darcy. The sums borrowed in 1836 from the Eyres by John Darcy were principally expended in buying up other incumbrances on the lands, which were, when bought up-, assigned to trustees for the lenders. In 1839 there was a balance of this money in the hands of a Mr. Norris, who held it for the Eyres, the lenders. There was conflicting evidence as to whether Kilkelly, in writing the following letters, acted on behalf of the Eyres or of John Darcy. The Master had come to the conclusion that he was Darcy's agent. It was clearly proved that the money referred to was that in Norris's hands, and that the letters were written on the subject of buying up Kelly's judgment. They were as follow :- "28th January 1839. "MY DEAR RIDGE-Believe me if I had known you still to be the solicitor of the parties I should not have communicated with Mr. J. S. on the subject of the settlement of the judgment against Mr. D.; but he having spoken to me urgently a few days ago, I mentioned to him that a sum of 1300 was available for that purpose, and that this was the only fund now remaining, and that if he chose to comÂÂmunicate with his clients (as I then conceived them to be) upon their executing a deed of assignment, it would be immediately paid over to them. Should this proposition meet your approbation, drop me a line by return of post, and let Mr. Macnamara have the necessary instructions to draw the deed, as there are many anxious, I assure you, to touch the fund.-Faithfully yours-4mm KILRELLY." " lst March 1839. "Mt mar. R1DGE-I regret your clients did not know their own minds, as it has caused me to have the money lodged here as agreed on ; and I assure you, sooner than break the arrangement with you, I exerted myself in a manner you are little aware of. With regard to the judgment in question being prior to Mrs. Darcy's settlement, and by which settlement 800 a-year is charged for her and 14,000 for younger -children, it is, I admit, in date ; but not being revived or redocketed since 27th June 1828 it comes within Lord Plunket's decision in Knox v. Kelly and in Blake v. Darcy. The latter deciÂÂsion was on K. Martin's judgment, which was obtained by his father in 1811. Lord Plunket in that case declared it not only postponed CASES IN EQUITY. 323 to Mrs. Darcy's settlement, but also to Messrs. T. and C. Eyres' 1847. mortgage of December 1836 for 22,000. If you were on the spot Chancery. I would clearly prove to you an existing incumbrance of over CARROLL 50,000 before you. To the truth of this I pledge myself. Having v. gone to the expense of having the draft deed approved by counsel, I DARCY. should not wish a break off at this moment, and please to let me Statement. know the determination of the parties by Sunday or Monday. * * Faithfully yours-J. KILRELLY." " My DEAR RIDGY-As your client has no objection to insert more than the actual consideration paid, be it so. I have had a good...