Dugdale v Vize

• Jurisdiction: Ireland
• Judgment Date: 01 June 1843
• Date: 01 June 1843
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

DUGDALE

and

VIZE.

Smith v. Poole 10 L. Jour. N. S. 192.

Furtain v. Harte 1 Longf. & T. 187.

M`Carthu v. O'Brien 2 Ir. Law Rep. 67.

Rawson v. Moore 2 Jebb & S. 601. See also Neligan v. Gun, 3 Ir. Law Rep. 354.

Hill v. Stawell 2 Ir. Law Rep. 302; S. C. 2 Jebb, & S. 389.

Lord St. John v. BoughtonENR 9 Sim. 219.

Barrett v. BriminghamUNK 4 Ir. Eq. Rep. 537, 542.

Eicke v. NokesENR 1 M. & Rob. 359.

College v. HornENR 10 Moore, 431.

Lindley v. Bonsor 2 Scott, 399.

Waller v. Lacy 1 Scott's N. Rep. 197, and the cases there referred to.

Kennett v. MilbankENR 8 Bing. 38.3

568 1843. Queeh'sBeach. Trinity Term. June 1. CASES AT LAW. DUGDALE v. VIZE. (Queen's Bench.) In scire facias Se-HIE FACIA s.-This was an action of wire facias, to revive a judgment to a plea of the Statute of Li- obtained by plaintiff against defendant in Hilary Term 1821. To the mitations (3 & W 4, c.27), writ of scire facias defendant pleaded the following pleas, viz., first, 4 the plaintiff re- payment : second, the Statute of Limitations, 3 & 4 W.4, c. 27 : third, that plied that the defendant, by defendant was discharged under the Insolvent Act, pursuant to the I & 2 whom the da- G. 4. To the first plea, plaintiff replied that the defendant did not pay mages, &c., were payable, the amount of said judgment, and joined issue. To the second plea, by his schedule plaintiff replied, that defendant being the person by whom the damages, filed in the In- • solvent Court, expenses and costs in the writ of scire facias mentioned were payable, by acknowledged to the plainly' his schedule filed in the Court for the Relief of Insolvent Debtors, and his (tbe plain- signed by him, acknowledged to the plaintiff his (the plaintiff's) right tiff's) right to the said da- to the said damages, &c., and concluded with a verification. Plaintiff "lag", 'C., to replied to the third plea, admitting it to be true, and praying judgment which the de fendant re- and execution for the damages, expenses and costs in said writ of scire joined that be did not, within facias mentioned, to be levied not on the person of the defendant, but on twenty years his lands, tenements and real estates. before the issuing of the Defendant filed a rejoinder, joining issue as to the matters mentioned scire facias, in the said replication to the second plea. acknowledge to the plaintif To the replication to the second plea the defendant rejoined that he his right to the damages, d did not, within twenty years before the issuing of the scire facial, acknow- said &c., mode et ledge to the plaintiff his right to the said damages, &c., mode et forma. forma. At the trial it ap- The case was tried at the Sittings after last Hilary Term, before peared that the Pennefather, C. J. The following is a copy of his Lordship's report :ÂÂdebt acknow ledged in the The first witness for the plaintiff was Edward Rogers; he swore he was schedule was messenger to the Insolvent Court; ; the paper which he produces con- one due on a promissory tains the petition and schedule of Joseph Vize, which the witness got note, but the from the Chief Clerk of the Insolvent Court. amount was the same as in The second witness was Joseph Phelan ; he looks at the said schedule the sci. fa., and evidence and petition, and the witness saw the defendant, the Rev. Joseph Vize, was given that sign gn both of the same. In the second page of the schedule, there is an they were one and the same entry under the date of 20th May 1821 ; it refers to a debt of 62. debt ; Held, 8s. 7d. " admitted as due upon a promissory note :" this schedule is signed that, upon the issue knit be- by the defendant. The plaintiff Dugdale was the sole detaining creditor ; tween the par ties, the plain- and it appears by the same entries that the defendant was discharged on tiff was entitled the 18th of June from said proceedings to which I refer. to recover. Semble- An Third witness, Robert Roe, plaintiff's Attorney, swears that the plain insolv ent's schedule is a sufficient acknowledgment of a debt within the statute.* This statute has a retrospective operation ; and an acknowledgment made before its its enactment is sufficient to take a case out of the bar created thereby. See ante, Marrogh v. Power, 49, 503, and cases cited in note to last page. CASES AT LAW. 569 tiff John Dugdale is the person mentioned in that schedule ; the witness T. T. 1843. knows of his own knowledge that the debt due to the plaintiff-the sub_ QueetesBehch. ject matter of the present suit-is the same debt, and to the same amount, DuGDA.Lu as that mentioned in the schedule, page 2, as " admitted." The case v. closed for the plaintiff. VIZE. Mr. Lonergan, Counsel for the defendant, called upon the learned Judge to direct the Jury to find a verdict for the defendant, upon the folÂÂlowing grounds :-First, that a present right to receive the said damages, expenses and costs, secured by the judgment in the writ of scire facia: mentioned, accrued to the said John Dugdale, being a person capable of giving a discharge for and a release of the same, more than twenty years before the commencement of this suit; and there was no evidence that any part of the principal money, that is to say, of the said damages, expenses and costs, or any interest thereon, was in the meantime paid, or any acknowledgment of the right thereto given in writing, signed by the said Joseph Vize, to the said John Dugdale. Second exception.-That a present right to receive the said damages, expenses and costs, secured by the judgment in the writ of scire facias mentioned, accrued to the said John Dugdale, being a person capable of giving a discharge for and release of the same, more than than twenty years before the commencement of this suit; and there was no evidence of any part of the principal money, that is to say, of the damages, expenses and costs, having been in the meantime paid, or any interest thereon ; nor of any acknowledgment of the right thereto having been given in writing, signed by any person by...