Gilman v Chute and Others

• Jurisdiction: Ireland
• Judgment Date: 15 November 1847
• Date: 15 November 1847
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

GILMAN

and

CHUTE and others.

Barber v. Shore 1 J. & Sy.610.

Tuckey v. HawkinsUNK 11 Jur. 910.

Cook v. Jones Cowp. 727.

Edmunds v. GrovesENR 2 M.& W. 642.

Bradley v. Urquhart Ibid 456.

Mahon v. Davoren 2 H. & Br. 522.

Warrens v. O'Shea 5. L. R. N. S. 77; S. C. 1 J. & Sy. 504.

442 CASES AT LAW. The defendants' second objection assumes that corporate property can be passed only under the common seal of the Corporation. Now, that assumption we have seen is not founded in law. The cause shown therefore should be allowed. PERRIN, J., concurred. Cause allowed. GILMAN v. CHUTE and others. Nov. 15. f To a scire SCIRE FACIAS, tried before JACKSON, J., at the Summer Assizes of acias defendÂÂant pleaded 1847, for the county of Kerry. that a present right to re- The writ recited a judgment recovered by Catherine Morris in ceive the mo ney secured Easter Term (59 G. 3, 1819,) against James William Raymond, as by the judg ment accrued well of a certain debt of 600 late currency, by the acknowledg to the conusee ,more than ment of the said James William Raymond, as 2. 13s. 10d. which twenty years before the were adjudged to the said Catherine Morris as damages. The writ suing out the writ ; the then stated the death of the original parties, and that the parties 'plaintiff re- on the record became their representatives, and concluded in the plied that the judgment was usual form, praying execution on the judgment. obtained on a post obit bond, The defendants pleaded that a present right to receive the money traversing that a present right secured by the judgment accrued to Catherine Morris more than to recover the money secured twenty years before the commencement of the action or suit of scire by the judg ment accrued facias, and that at the time the right to recover the money secured more than twenty years by the judgment accrued to Catherine Morris, and from thence until before the suing out the her death, she was a person capable of giving a discharge for or writ ; on this, issue in fact release of the same, and that no part of the principal money secured was taken. Held, that the by the judgment, or any interest thereon, was paid, nor was any production of a bond, agreeing in all respects with that on which the judgment had been entered, was prima facie evidence that it was the same bond as that on which the judgment had been entered. Held also, that the condition of the bond being given in evidence, it did not con tradict the record, and was properly admissible to show that the bar created by the Statute of Limitations did not arise. Held also, that the defendant having taken issue on the fact, could not aver the record precluded enquiry. CASES AT LAW. 443 acknowledgment given within twenty years before the issuing of the writ of scire facias. The plaintiffs replied that J. W. Raymond, on the 5th of April 1819, by his bond or writing obligatory, acknowledged himself indebted to Catherine Morris in the sum of 600, conditioned for the payment of 300 to Catherine Morris, her executors, adminisÂÂtrators and assigns, on the day of the decease of Catherine Morris, and that this was the same bond mentioned in the record of the judgment ; that Catherine Morris died within twenty years before the commencement of the present action, to wit, on the 1st of May 1836, and that thereupon a present right to recover the money secured by the judgment accrued to her executors ; Absque hoc, that a present right to recover the moneys secured by the judgment accrued more than twenty years before the commencement of the action or suit; and concluded with profert of the bond, the condition whereof was, that if the said James William Raymond, his heirs, executors, administrators or assigns, should well and truly pay, or cause to be paid, unto the said Catherine Morris, her executors, administrators or assigns, the just and full sum of 300 of the then currency of Ireland, on the day of the decease of the said Catherine Morris, with legal interest from the date thereof, without fraud or further delay, that then the said obligation should be void and of none effect, or else should stand and remain in full force and virtue in law. The defendants rejoined, taking issue on the averment that a present right to receive the moneys secured by the judgment accrued to Catherine Morris more than twenty years before the commenceÂÂment of the said action or suit. The plaintiffs at the trial gave in evidence an attested and compared copy of the judgment on which the scire facias issued, and it appeared to be a judgment entered up in the ordinary way on a bond payable in prcesenti, and contained no stay of execution. They also offered in evidence a bond...