Executors of MARTIN v The Heir and Tertenants of M'CAUSLAND

• Jurisdiction: Ireland
• Judgment Date: 17 November 1840
• Date: 17 November 1840
• Court: Court of Common Pleas (Ireland)

Common Pleas.

Executors of MARTIN

and

The Heir and Tertenants of M'CAUSLAND.

Mahon v. Davoren 2 H. & B. 523.

Warrens v.O'Shea 5. L. R. N. S. 77.

Kelly v. Kelly 6 L. Rec. N. S. 231.

Ottiwell v. Farran 6 L. Rec. N. S. p. 10, and 2 Ir. L. Rep. p. 110.

Maddocks v. Bond Ir. Term Rep. 332.

Palmer v. Algeo 1 J. & S. 501.

Irwin v. Ormsby 2 J. & S. 91.

Murray v. The East India CompanyENR 5 B. & A. 215.

Berrington Evans 1 Y. & C. 439.

M'Carthy v. O'Brien 2 Ir. Law Rep. 67.

Hewitt v. M'Geown 1 Ir. L. Rep. 88.

Putman v. BatesENR 3 Russ. 188.

Wood v. BlakeUNK 2 Mol. 392

Tulloch v. Dunn 1 Ry. & Mo. 416.

Grenfell v. Girdlestone 2 Y. & C. 672.

Pittam v. FosterENR 1 B. & C. 250.

CASES AT LAW. 113 Executors of MARTIN v. The Heir and Tertenants of M'CAUSLAND. ( Common Pleas.) . 1840. aniamonPleas. Mids. Term. Nov. 10, 13, 17. Santa FACIAS to revive a judgment.-The writ, which was directed to Inascirefacias the Sheriffs of the city and county of Londondery, recited, that Samuel judgment veinvte a Martin, in Trinity Term in the 48th year of the reign of King George 3, against the heir and ter-(1808), recovered against Marcus Langford M'Causland, as well a certain tenants of the sorarep e loin e; u debt of 400 sterling, by the acknowledgment of the said Marcus Langford M'Causland, as 2. 12s. 5d. for his damages which he had sus- tion of a revival oufd the entsame j tamed by reason of the detention of the said debt. It further recited, that the said Samuel Martin had since died, having by his last will against the personal repre appointed Arabella Martin, John Martin, and Samuel Martin (the sentative of the plsorrigiwnaitlhienon2u0- o plaintiffs) his executors; W ; and that the said Marcus Langford M'Caus- land had also died ; that execution of the said 'judgment yet remained years from the scirein gfoi ient. seized of several lands and tenements as of fee, or of a descendible Heldsufficient. A payment freehold. The Sheriffs were, therefore, commanded to make known to of interest by the heirs, and also to the tenants of all the lands and tenements which the personal representative were of and belonged to the said Marcus at the time of the rendition of of the original conusor within the said judgment, to come in and shew cause why the debt and damages 20 years, Is aforesaid, should not be levied of all the lands and tenements which sufficient to keep the judg were of and belonged to the said Marcus, and of which he was seized ment alive as aforesaid, at the time of the rendition of the judgment aforesaid or against the lands in the afterwards, and rendered to the said plaintiffs according to the form of hands of his the recovery aforesaid. The Sheriffs returned, that they had made htee nirantsand ter-known to the Rev. Marcus M'Causland, the heir of the conusor, and to Semble.-An macenntowinledwgri- certain parties, particularly named, the tertenants of the lands of signed which the said conusor was seized in fee at the time of the rendition of ing within twenty the said judgment. To this writ the tertenants pleaded the following years by the personal repreÂÂpleas :- sentative or his First, executio non, because of the non seizin of the said Marcus Lang- agent, that the paid, is sumo_ i ford M'Causland same is un- , at the time of the rendition of the judgment, or at any time after. ent to enable the judgment Second, payment by the said Marcus Langford M'Causland. creditor to re Third, executio non of the lands and tenements in the return of the cover the amount of the writ of scire facias mentioned, whereof they are returned tenants, judgment out tohfethenldanodfs thine " Because they say, that a present right to receive the said debt and ha ter- "damages accrued to a person capable of giving a discharge for or release heir and of the same, more than twenty years before the suing forth of the " said writ of scire facias, to wit on the 1st day of January in the year " of our Lord 1818, at the place aforesaid. And that no part of the "principal money of the said debts and damages in the said writ men.. " tioned, nor any interest thereon, was paid, nor any acknowledgment of 114 CASES AT LAW. " the right thereto given in writing signed by the said Marcus Langford " McCausland or his agent, or by any other person or persons by whom " the said debt and damages was payable, or by the agent of any such " person or persons, to the said Samuel Martin, the plaintiff's testator, or " to the said Arabella Martin, John Martin, and Samuel Martin, or to " any or either of them, or to their agent, or to the agent of any or either " of them, or to any person entitled thereto, or to the agent of any such " person or persons, within twenty years next before the time of the " issuing of the said writ of scire facias ; and this they are ready to 44 verify, wherefore," &c. Fourth, Executio non, &c.-" Because they say, that a present " right to receive the said debt and damages out of the lands and " tenements whereof they are returned tenants as aforesaid, accrued to a " person capable of giving a discharge for, or release of the same, more " than twenty years before the suing forth of the said writ of scire facias, " to wit, on the 1st day January 1818, at the place aforesaid ; and that " no part of the principal money of the said debt and damages in the said ivrit mentioned, nor any interest thereon was paid, nor any acknowÂÂ" ledgment of the right thereto given in writing, signed by the said " Marcus Langford M'Causland, or by his agent, or by any other person " or persons, by whom the said debts and damages were payable out of " the said lands and tenements, or by the agent of any such person or " persons to the said Samuel Martin the plaintiff's testator, or to the " said Arabella Martin, John Martin, and Samuel Martin, or to any " or either of then), or to their agent, or to the agent of any or either " of them, or to any person or persons entitled thereto, or to the agent " of any such person or persons, within twenty years next before the " time of the issuing of the said writ of scire facias; and this they are " ready to verify, wherefore," &c. The following plea was put in by the heir. "And the said Marcus " M'Causland saith, that the said plaintiff ought not to have execution " against him for the debt and damages aforesaid, out of any lands and " tenements which were of the said Marcus Langford M'Causland, at the " time of the rendition of the judgment in the said writ of wire facias " mentioned, or at any time after, because he saith that a present right " to receive the said debt and damages out of the lands and tenements which " were of the said Marcus Langford M'Causland, at the time of the renÂÂ" dition of the said judgment in the said writ of scire facias mentioned, " or at any time after, accrued to a person capable of giving a discharge " for or release of the same, more than twenty years before the issuing " forth of the said writ of scire facias, to wit, on the 1st day of January " 1818, at the place aforesaid ; and that no part of the principal money " of the said debt and damages in the said writ mentioned, nor any " interest thereon was paid, nor any acknowledgment of the right CASES AT LAW. 115 " thereto given in writing signed by the said Marcus Langford M'Causland, or by his agent, or by any other person or persons by " whom the said debt and damages were payable out of any lands and " tenements which were of the said Marcus Langford M'Causland, at " the time. of the rendition of the said judgment in the writ of wire "facias aforesaid mentioned, or at any time after, or by the agent " of any such person or persons to the said Samuel Martin the "plaintiff's testator, or to the said Arabella Martin, John Martin, and "Samuel Martin, or to any or either of them, or to any person or perÂÂ" sons entitled thereto, or to the agent of any such person or persons, "within twenty years next before the issuing of the said writ of scire "facias, and this he is ready to verify, wherefore," &c. To the first plea of the tertenants, the plaintiffs replied the seizin of the conusor of the judgment of the lands and tenements as of fee. To the second plea they replied, tendering issue on the fact of payÂÂment. To these replications there was a joinder in issue by the defendÂÂants, and they are therefore out of the present consideration. To the third plea the plaintiffs replied, precludi non from having exÂÂecution against them (the tertenants) for the debt and damages aforesaid, of the lands and tenements aforesaid, whereof, &c., "because they say, "that after the rendition of the said judgment in the said writ of scire " facias mentioned, the said Marcus Langford M'Causland died, having "first duly made and published his last will and testament in writing, and "thereby nominated and appointed one Charles Richardson executor " thereof, after whose death the said Charles Richardson duly proved the " said last will and testament, &c. And the said plaintiffs say, that "after the death of the said Marcus Langford M'Causland, and within "twenty years next before the term of the issuing of the said writ of "scire facias above mentioned, to wit, in Trinity Term in the fourth "year of the reign of our late Sovereign George the Fourth, to wit, at " Dublin aforesaid, &c., a certain other writ of scire facias to revive the "said judgment was duly issued out of and under the seal of the said "Court, &c., against the said Charles Richardson, as such executor of the "said Marcus Langford M'Causland as aforesaid; and the said plaintiffs " further say, that such proceedings were had and taken upon the said "last mentioned writ of scire facias, that it was afterwards in the said " Court, &c., considered, /that the said Samuel Martin the plaintiff's "testator, should have his execution against the said Charles Richardson " in the said last mentioned writ of scire facias named, the executor of the " said Marcus Langford M'Causland, for...