Curry v Tevlin

• Jurisdiction: Ireland
• Judgment Date: 13 November 1876
• Date: 13 November 1876
• Court: Common Pleas Division (Ireland)

Com. Pleas.

CURRY

and

TEVLIN.

Webb v. AdkinsENR 14 C. B. 401.

White v. BartlettENR 9 Bing. 378.

Action by executor while question of execution of will in contest — Staying proceedings — Lodging money in Court.

CURRY r. TEVLTN. Actwn by executor while question of execution of will in contest-Staying pro ceedings-Lodging money in Court. An executor sued, as such, while the question whether the will had been duly executed was still in contest in the Court of Probate : this Court stayed the action, and allowed the Defendant to pay money into Court in discharge of it. MOTION to stay proceedings until probate of the will of John Farrell should have been granted to the Plaintiff, and notice of. such grant and a reasonable opportunity of inspection of same should have been given to the Defendant or his attorney ; and that the Defendant might be at liberty to bring into Court the sum of £270 16s. 8d., being the amount due by him to the legal repreÂsentatives of John Farrell. The Plaintiff sued, as executor of John Farrell, to recover the sum of £400 for money had and received and on an account stated ; the endorsement of particulars set forth that the amount claimed -was in respect of returns of sales by auction effected by the DeÂfendant of certain stock, &c., for the Plaintiff as executor, &c. It appeared by an affidavit of the Defendant's attorney, that the validity of the will under which the Plaintiff claimed as executor was being contested in the Court of Probate by one Christopher Farrell ; that no probate had been granted to the Plaintiff, and that the cause in the Probate Court was at the time. of this motion listed for trial. It further stated that the DefendÂant had in his hands the sum of £270 16s. 8d. received by him in his capacity of auctioneer, on foot of the sale of chattels the proÂperty of the late John Farrell, and that he was willing to pay that sum to the person legally entitled to receive it; that previously to the bringing of this action, the Defendant had been warned by Christopher Farrell not to part with that sum to any one pending the decision of the Court of Probate, and that the Defendant was. advised that he could not with safety either pay it to the Plaintiff or plead in this action pending the decision of that Court. VOL. X.] COMMON LAW SERIES. 459 The Plaintiff filed an affidavit in reply, in which he stated that Com. Pleas. . he had been acting as executor since the death of John Farrell ; 18'76 that the...