Executors Kemmis in Error v MacKlin

• Jurisdiction: Ireland
• Judgment Date: 29 April 1848
• Date: 29 April 1848
• Court: Court of Exchequer Chamber (Ireland)

Exch. Cham.

Executors KEMMIS in Error

and

MACKLIN.

Lord Trimleston v. Kemmis 5 Ir. Law Rep. 394.

372 CASES AT LAW. E. T. 1848. Exch. Chan:. ,•nn•n•ynwal eydequtr ebambtr. Executors MOUS in Error v. MACKLIN. (In Error from the Court ("Common Pleas.) April 29. To a declara- Tins was an action of debt on a bond for £2000, bearing date the tion of debt on a bond, bear- 29th of September 1806, payable on the 25th of the following March. ing date in 1806, the de- The declaration was in the common form, and the defendant pleaded end the plead- ed the usual solvit post diem, to which the defendant replied, taking issue on it. plea of solvit post diem • and At the trial, before the Chief Justice of the Common Pleas, the p at the the • plaintiffha ving plamtiff proved the execution of the bond, and payments on foot of feaviildeedneteo that it to the amount of £1800 down to the 21st of October 1812; also a any suit had reference to arbitration in the year 1824, on which occasion the been commen ced or prosecu- defendant said he never would pay any interest, but that he would ted for the re covery of the pay £200 on getting up his bond. The plaintiff then having proved said debt, or any payment a recent offer on the part of the defendant to compromise, closed his of principal or interest, or case. Counsel for the defendant then called upon the Chief Justice other satisfac tion made on to direct the jury to find a verdict for the defendant on the following account of said bond, within grounds :-First, that the plaintiffs were barred from recovery by twenty years before the corn- the provisions of the 8 G. 1, C. 4, inasmuch as more than twenty mencement of ment on the suit, Held, years had elapsed between the last pay foot of such bond that the Judge and the passing of the 3 & 4 W 4, c. 27, and 3 & 4 Vic. c. 105 ; and ought not to have left the that no suit had been commenced or prosecuted, nor any interest question of payment to the paid, or other satisfaction made, within twenty years next before jury, but to have directed the passing of either of the said statutes ; secondly, that more than a verdict for the defendant. twenty years had elapsed between the date and execution of the (Dissentienti bus CR Amp- bond and the 1st day of January 1833; thirdly, that the right to TON, J., and PENNEFA- recover the money secured by the bond was barred by the 8 G. 1, THEE, B.) c. 4, previous to the passing of the 3 & 4 W. 4, c. 27, and 3 & 4 Vic. c. 105, and 7 & 8 Vic. c. 90 ; and that the 8 G. 1, c. 4, was then in force, so far as related to the bond, and the money thereby secured ; CASES AT LAW. 373 • fourthly, that the 3 & 4 W. 4, c. 27, applied solely to charges on real E. T. 1848. Exch. Cham. property, and could not apply to the proceedings in this case, which must be governed by the 3 & 4 Vic. c. 105, with the enactments and KEMMIS v. provisions of which the plaintiffs did not comply, by showing a pay- MACKLIN. ment or acknowledgment in writing within twenty years before the commencement of this suit. The Chief Justice, however, refused so to direct the jury, but left it to them to say whether the money due on foot of the bond had been paid or not, or whether there was any thing in said evidence, and from the length of time that had elapsed from the period of the award to the bringing of the action, which would lead them to presume that it had been paid by the defendant, and to find accordingly. The jury found a verdict for the plaintiff, with £200 damages ; and a bill of exceptions having been taken to the charge of the Chief Justice on the foregoing ground, the same was argued before the Court of Common Pleas, who gave judgment in Trinity Term 1846, allowing the exceptions.* The plaintiffs sued out a writ of error, on which the case now came on for argument before this Court. A general judgment for the defendants having been entered up in the Court below (and not a venire de novo), which was admitted to be an erroneous judgment (vide Lord Trimleston v. Kemmis (a)), there was a preliminary discussion as to the proper course to be taken by this Court under such circumstances, as no writ of error could have lain at this stage of the proceedings if the proper judgment had been entered up. But the Court decided to have the principal question argued, to ascerÂtain whether, in the reversal of the judgment, a venire de novo was to issue, or whether judgment was to be entered up for the plaintiffs. The former judgment would be virtually one affirming the judgment of the Court below, the latter a reversal of it. Francis Fitzgerald and Napier, for the plaintiff in error. James Wall and Fitzgibbon, for the defendant in error. * 8 Ir. Law Rep. 401. (a) 5 Ir. Law Rep. 394. 374 CASES AT LAW. E. T. 1848. [The arguments were substantially the same as those advanced Exch. Chata, in the Court below, and will also be found fully adverted to and KEMMIS . discussed in the judgments of the learned Judges in this Court]. v. MACKLIN. JACKSON, J. The action in this case was debt on a bond dated the 29th of September 1806, by the defendant Macklin to Thomas Kemmis, for £4000 Irish, payable on the 25th of March 1807. The plainÂtiffs declared as executors of Thomas Kemmis deceased. The defendÂant, after praying oyer of the condition, pleaded solvit post diem, and issue was joined thereon. At the trial on the 9th of February 1846, before my Lord Chief Justice of the Common Pleas, the plaintiffs proved the bond, and a memorandum of the 21st of OctoÂber 1812, showing that £200 was due. It was also proved on the part of the plaintiffs, that in the year 1824 there was a reference to arbitration, and that the defendant Macklin said he would never pay any interest, the delay was Kemmis's ; but that he would pay £200 on getting up his bond. The plaintiffs having closed their case, the defendant called for a direction to the jury to find for him on the provisions of the 8 G. 1, c. 4, insisting that the plainÂtiff's demand was barred thereby before the passing of the 3 & 4 W. 4, c. 27, and the 3 & 4 Vic. c. 105, and that it could not be revived thereby ; but the Chief Justice refused so to direct the jury ; whereÂupon Counsel for the plaintiffs excepted. The Judge left the case to the jury on the issue of payment in fact, on the evidence of acknowledgment and offer of payment of £200, on the one hand, and the presumption arising from the length of time on the other. The jury found a verdict for the plaintiffs, £200 damages and sixÂpence costs. It is right to say, I apprehend the Chief Justice, in thus leaving this case to the jury, did not mean to declare it as his opinion that the law was in favour of the plaintiff's right to recover on such grounds, but took that course in order to put the important question involved into the best course of final decision, at the least expense to the parties. The Court of Common Pleas, after arguÂment, allowed the exception ; and the defendant, instead of making up the judgment awarding a venire de novo, entered it as a final CASES AT LAW. judgment for the defendant. In that respect the judgment is plainly E. T. 1848. erroneous, and must be reversed. This Court had considerable Exch.-.._.,vham. difficulty in dealing with this record as it stands; but at the pressing V. KEMMIS instance of both parties, it permitted the case to be argued on the MACKLIN. merits, to see whether a venire de novo ought to be awarded, or whether the plaintiffs below ought to have had judgment. It must be now taken, since the 7 & 8 Vic. C. 90, s. 39, that the • effect of the 3 & 4 W. 4, c 27, and 3 & 4 Vic. c. 105, was to repeal the Act of the 8 G. 1, c. 4, and that as regards bonds, the 8 G. 1 has been repealed since the 1st of November 1840, when the 3 & 4 c. 105 came into operation. The question for the Court then is, what was the effect of that repeal? Is the 8 G. 1, c. 4, es it were obliterated from the statute book, as though it never had been passed, or has it had any and what effect upon the bond in question, and upon this action ? It is true, Statutes of Limitation generally only bar the remedy, and not the right. In my opinion, the 8 G. was more than a mere Statute of Limitations in this respect-it barred both remedy and right on this bond, and I think (to use the language to be found in a modern Act, 9 G. 4, c. 35, in reference to the 8 G. 1), it barred and extinguished this debt. Look to the 8 G. 1 ; observe its title ; " far more effectually quieting and securing possessions, and preventing vexatious suits at-law;" observe also the recital ; " that it may reasonbly be presumed that "debts due by the space of twenty years or more, which have not "been demanded, nor any suit prosecuted for the recovery thereof, or any interest or other sum of money paid or received on account "thereof, are paid and satisfied, though no legal discharge can be "produced, or proof made of the payment thereof." I conceive the effect of this preamble is not confined to section 1 ; it is a key to the mind and intent of the Legislature as to these stale demands resÂpecting which they were legislating. The 1st section then gives two years from the 25th of December 1721 to sue upon debts circumstanced as described in the preamble, or in default thereof such debts shall be presumed to be satisfied and paid; and enacts, that if after the 25th of December 1723, any action or suit be brought, the party sued shall and may plead payment, and such 376 CASES AT LAW. plea shall be received and allowed as an absolute bar thereof, as if the money had been paid at the day and place first limited for payÂment thereof, unless the plaintiff shall prove that some action or suit hath been prosecuted for recovery of said debt, or some interest or money paid, or other satisfaction made on account thereof, withÂin twenty years before action brought. The 2nd section enacts, that if after the 25th of December 1725, any action be brought for any • debt by...