Evans v O'Donnell and Another

• Jurisdiction: Ireland
• Judgment Date: 10 November 1883
• Date: 10 November 1883
• Court: Queen's Bench Division (Ireland)

Q. B. Div.

Before O'BRIEN and JOHNSON, JJ.

EVANS

and

O'DONNELL AND ANOTHER

Hibernian Bank v. HughesUNK 10 L. R. Ir. 15.

Fearnside v. Flint 22 Ch. Div. 579.

Sutton v. Sutton Ibid. 511.

Donegan v. NeillUNK 16 L. R. Ir. 309.

Darley v. TenantUNK 53 L. T. (N. S.) 257.

Wall v. WalshUNK Ir. R. 4 C. L. 103.

Johnson v. BellUNK 6 Ir. C. L. R. 526.

O'Hara v. Creagh 3 Ir. Eq. R. 179.

Sheppard v. DukeENR 9 Sim. 567.

Watson v. BirchENR 15 Sim. 523; 16 L. J. Ch. 188.

O'Hara v. Creagh 3 Ir. Eq. R. 179.

Ex parte Tynte 15 Ch. Div. 125.

Sutton v. Sutton 22 Ch. Div. 511.

Fearnside v. Flint Ibid. 579.

Sherwood v. HannanUNK 15 L. R. Ir. 334.

Jhonson v. BellUNK 6 Ir. c. L. R.526.

Henry v. Smith 2 Dr. &. War. 381.

Farran v. BeresfordENR 10 Cl. & Fin 319.

Darley v. Tenant 53 L.T. (N.S.) 257.

O'Kelly v. BodkinIR 3 Ir.Eq. 390

Henry v. Smith 2 Dr. & War. 381

Eyre v. M'Dowell 9 H.L.Cas.619.

Limerick Guardians v. Heffernan Ir.R. 11 Eq. 112.

O'Hara v. Creagh 3 Ir. Eq. R. 189.

Henry v. Smith 2 Dr. & War.386.

Statute of Limitations —Judgment creditor — Right to issue execution —Judgment more than twelve years old — No payment or acknowledgment — 37 & 38 Vict. c. 57, s. 8 — 16 & 17 Vict. c. 113, s. 20.

VOL. XVI.] Q. B., C. P., & EX. DIVISIONS. 445 tiffs ; that the parties continued in the same position, and no corn- Q. B. Div. promise was pending. This affidavit was sworn on the 23rd day 1885. of May, 1885. NATIONAL BANK V. Ignatius O'Brien, for the Defendant, in.support of the motion, CANNING. relied upon The Hibernian Bank v. Hughes (1). There was no appearance for the Plaintiffs. JOHNSON, J., granted the motion. Solicitor for the Plaintiffs : X Larkin. Solicitors for the Defendant : Rice 8f Ai' Mallon. EVANS v. O'DONNELL AND ANOTHER (2). Q. B. Die. 1885. Statute of Limitations-Iudg ?lent creditor-Bight to issue execution-Tudg- ment more than twelve years old-No payment or acknowledgment-37 4 Nuv. 5, 10. 38 Vict. c. 57, s. 8-16 6. 17 Vict. c. 113, s. 20. Execution cannot be issued on a judgment more than twelve years. old , where there has been neither payment on foot thereof nor acknowledgment.. Sherwood v. Hannan (15 L. R. Ir. 334) dissented from. SUIVImoNs by the Plaintiff for leave to issue execution. It appeared from the affidavit of the Plaintiff, that on the 15th day of July, 1871, he obtained a verdict against the Defendants for £250 damages, and that on the 9th day of August, 1871, he entered up judgment for the said sum of £250 damages, together with £71 14s. 11d. costs, making together the sum of £321 14s. 11d. No payment had been made by the Defendants or either of them on foot of the said sum of £321 148. 11d., and there was then due on foot of the judgment the sum of £321 148. 11d., together with £178 138. for interest thereon, at the rate of £4 (1) 10 L. R. Ir. 15. (2) Before O'BRIEN and JOHNSON, J.J. 2 B 2 446 LAW REPORTS (IRELAND). [L. R. L Q. B. Div. per, cent. per annum, from the 9th day of August, 1871, to the 1885. time of making this application. It also appeared that at the EVANS time when the judgment was obtained neither of the Defendants v. O'DONNELL. had any means of paying it, but that by the death of their father in the year 1882 or. 1883, they each became entitled to conÂsiderable property, and that they were both still alive. It was also stated in the affidavit that the judgment had not been registered as a mortgage, nor were any proceedings ever taken to have it declared to be a charge upon lands. Roche, Q. C. (with him D. Mahony), for the Plaintiff: The bond in Fearnside v. Flint (1), and the covenant in Sutton v. Sutton (2), were portion of the security on the land. Rent reserved by a lease is recoverable for twenty years : Donegan v. Neill (3) ; Darley v. Tenant (4): The Judgment Mortgage Act puts an end to any judgment being a charge upon lands except in the way pointed out by that Act. The word judgment in the section of the Act of 1874 only refers to judgments marked before the Judgment Mortgage Act. The judgments in the cases of Wall v. Walsh (5), and Johnson v. Bell (6), were upon judgments marked before 1850 when judgments were charges upon land. In O'Hara v. Creagh (7), the judgment was a charge upon the land, and the decision rests upon the same principle as in Fearnside v. Flint (1) ; Sutton v. Sutton (2). J. G. Swift MacNeill for the Defendants :- This motion is unsustainable since the judgment in respect of which these proceedings have been instituted is barred by the provisions of the Real Property Limitation Act, 1874 (37 & 38 Viet., c. 57, s. 8) : 2 Chitty's Archbold (Ed. 1885), p. 957; Sheppard v. Duke (8) ; Watson v. Birch (9). These cases were, no . doubt, decided on the construction of the 3 & 4 Wm. 4, c. 27, • (1) 22 Ch. Div. 579. (6) 6 Ir. C. L. R. 526. (2) Ibid. 511. (7) 3 Ir. Eq. R,. 179. (3) 16 L. R. Ir. 309. (8) 9 Sim. 567. (4) 53 L. T. (N. S.) 257. (9) 15 Sim. 523 ; 16 L. J. Ch. 188. (5) Ir. It. 4 C. L. 103. s. 40; but its provisions are identical with those of the 8th sect. of Q. B. Div. the Act of 1874, save that the period of limitation is reduced from , 1885. twenty to twelve years. Ev&Ns v. If this motion be granted, the remedy against personal estate O'Domarx. will survive, when the remedy against the real estate has been barred. Nay, further, the provisions of the statute of 1874 will be evaded, for there will be nothing to prevent the Plaintiff, on revivÂing his judgment from registering it as a mortgage, and thus charging the Defendant's lands long after the period limited by the Act of 1874 for the creation of such charges. Under the old Act the danger and confusion likely to arise from such a state of things was perceived and avoided. In O'Hara v. Creagh(1) Brady, C.B., said (p. 187) :-" I do not see how a demand can be worked out against the personal property of the debtor when the proceeding is barred as against his real estate. Therefore I read the 3 & 4 Wm. 4, c. 27, s. 40, as barring a demand which might have been recovered against the real estate, whether it be sought to be put in force against the real or the personal estate." " In my opinion," Richards, B., said (p. 188), " we ought not to cut down the operation of the general words of that enactment for the purpose of establishing a difÂference in respect to the effect of a judgment or other security according as it is sought to be enforced against real or personal estate. The language of the statute is general that no action or suit, or other proceeding, shall be brought to recover any sum of money secured by judgment, &c.; and the legislature, when passÂing this Act, must have been aware of the state of the law in this country, and of the bar created by 8 Geo. 1, c. 4." The more recent English cases do not disturb, but acknowledge, the authority of the earlier decisions : Ex parte Tynte (2) ; Sutton v. Sutton (3) ; Fearnside v. Flint (4). The recent decision of the Vice-Chancellor of Ireland in Sherwood v. Hannan (5) draws a distinction between the law in England and the law in Ireland on this...