Garstin v Keogh

• Jurisdiction: Ireland
• Judgment Date: 23 November 1858
• Date: 23 November 1858
• Court: Court of Common Pleas (Ireland)

Common Pleas.

GARSTIN

and

KEOGH.

England v. WatsonENR 9 M. & W. 333.

In re KeoghUNK 4 Ir. Ch. Rep. 288.

Reilly v. FitzgeraldUNK 6 Ir. Eq. Rep. 335.

Rigg v. BowaterENR 3 Bro., C. C., 365.

Dacres v. ChuteENR 1 Vern. 160.

Barrett v. Deare M. & Mal. 200.

Hawkins v. Rudd Peake, N. P. R. 248.

Robinson v. Hawksford 9 Q. B. 52.

72 COMMON LAW REPORTS. T. T. 1858. cannot bring myself, by any act of mine, to open this Court to CommonPleas. parties admitting themselves to have been guilty of a gross fraud; ARMSTRONG but of course, as I have the misfortune to differ from the other TURQUAND. Members of the Court, the judgment of the Court will be that the defendant's demurrer be overruled, and that the plaintiff have judgment ; and as we have already decided that we have a right to refer to the original policy on which the action is brought, the judgment will be entered on reading and considering not only the pleadings in the cause, but also the policy of insurance, which will be described in the judgment and identified by the officer of the Court as that referred to in the judgment. Demurrer overruled. GARSTIN v. KEOGH. THIS was a writ of revivor issued against John Henry Keogh, as eldest son and heir-at-law of George Rous Keogh, calling on him to appear and show cause wherefore Henry Clopton Keogh, adminÂÂistrator of the goods, chattels and credits which were of Anne Garstin, deceased, at the time of her death, and left unadministered by Elizabeth Keogh, administratrix of said Anne Garstin, and which Elizabeth is also since deceased, should not have execution against the said John Henry Keogh, who is the heir-at-law of the said George Rous Keogh, of a judgment, whereby the said Anne Garstin, widow, on the 16th of October 1813, in the Court of Common Pleas in Ireland, recovered against the said George Rous COMMON LAW REPORTS. 73 Keogh the sum of 2400, late Irish currency, debt, besides costs, M. T. 1858. mmonPleas. of which 1301. Os. 11d. still remained due. Co`on. The first defence, as to the 1109. 6s., parcel, &c., alleged payment of 1109. 6s., in the manner indorsed, being the. entire amount due at the time of such payment upon said judgment ; ,and as to the residue of said sum of 1301. Os. I Id., that same consisted of interest alleged to have accrued due after such payment. The indorsement upon the plea of payment was as folÂÂlows :-" 9th of May 1853.-Allocated by the Commissioners of " Incumbered Estates, in the matter of the estate of John Henry " Keogh, owner and petitioner, to the personal representative of "Anne Garstin, deceased, out of the funds then in Court to the " credit of said matter, 1109. 6s., being the entire amount due "for principal, interest and costs on foot of said judgment on said " day, 1109. 6s." The second defence, in substance, averred, that John Henry Keogh, on the 16th of December 1850, presented his petition, as owner, to the Commissioners of the Incumbered Estates Court, for sale of the premises therein mentioned, and consisting of certain lands situate respectively in the counties of Kildare and Carlow, for the payment of certain incumbrances thereon, including the said judgment; that an order for the sale thereof was made by the Commissioners, and that a portion of said premises, to wit, the Kildare estate, was, on the 16th of November 1852, sold in said Court, and that the purchase-money amounted to 15,030 ; that the .amount of the purchase-money was brought into the Court, to the credit of the matter, by the several purchasers ; that a final schedule of incumbrances was settled by Mr. Commissioner Long-field, who was the Commissioner in the matter, and thereby a sum of 1061. 10s. 9d. for principal, and 31. 16s. 1011 for interest up to February 1853, was, by the said Commissioner, stated to be due to the personal representative of the said Anne Garstin, on foot of the judgment in' the writ of revivor mentioned, and to be the second incumbrance affecting the said Kildare estate ; that on the 9th of May 1853, the said Commissioner, by an allocation schedule, duly, allocated part of the proceeds of the sale of the said Kildare voL. 9. 10 L 74 COMMON LAW REPORTS. M. T. 1858. estate, and then in Court, to the representative of the said Anne CommonPleas. Garstin, in satisfaction, &c., of the entire sum then due for prin GARSTIN cipal, interest and costs on foot of such judgment ; that thereby the V. KEOGH said judgment was satisfied and discharged, as a charge on the said lands so sold as aforesaid, and all other lands the property of the said J. H. Keogh ; that the sum then lodged in Court, and allocated as aforesaid, became the property of the said personal representative of the said A. Garstin, as the sole remaining right in respect of the said judgment ; that the residue of the sum alleged to be due consisted of interest alleged to have accrued due on said judgment, since the date of the said allocation schedule, and from which period the said judgment, under the 29th Rule, ceased to bear interest. The third defence, which was on equitable grounds, stated the presenting of the petition for sale ; the order for sale ; that afterÂÂwards a consent was entered into, and made a rule of Court, between said J. H. Keogh and certain creditors mentioned in the schedule annexed to the petition, to wit, Richard Spring, &c., whereby it was agreed that the said creditors should not require payment of their demands and charges out of the produce of the Kildare estate, but allow them to remain outstanding against said Carlow estate, and thereby waive their respective rights, claims and demands, and give priority as to the Kildare estate, and the produce of the sale thereof, to and in favour of the other creditors named in the schedule to the petition, and of all other creditors of the defendant J. H. Keogh, having charges or claims affecting the Kildare estate, and allow the proceeds of the said Kildare estate to be divided in the first instance among such other creditors; without prejudice, however, to their rights as against the Carlow estate, in case a sale of same might become necessary ; that under said order and consent, the sale of the Carlow lands was postÂÂponed, and the Kildare estate sold to certain purchasers for...