Higgins v Browne

JurisdictionIreland
CourtUnspecified Court
Judgment Date30 January 1885
Date30 January 1885

Appeal.

Before SIR E. SULLIVAN, C., FITZ GIBBON AND BARRY, L. JJ.

HIGGINS
and

BROWNE

Rankin v. HarwoodENR 2 Phill. 22.

Rush v. Higgs 4 Ves. Jun. 638.

Pennell v. RoyENR 3 De G. M. & G. 126.

Harman v. Harman 20 Solr. Jour. 431.

Re Stubbs' Estate; Hanson v. Stubbs 8 Ch. Div. 154.

In re WilliamsELR L. R. 15 Eq. 270.

Geoghegan v. Domer 20 Solr. Jour 97; also reported in the Weekly Notes, 1875, p. 229.

Harman v. Harman 20 Solr. Jour. 431.

In re YoungI. R. 11 Eq. 521.

In re Artistic Printing Company 14 Ch. Div. 502.

Llanngenneck Coal Company v. Old Park Printing CompanyDLTR 13 Ir. L. T. R. 74.

Re Timms 47 L. J. Ch. 831.

Geoghegan v. DomerUNK 20 Solr. Jour. & Rep. 97; Weekly Notes, 1875, p. 229.

Harman v. Harman 20 Solr. Jour. & Rep. 431.

Practice — Executor de son tort — Administration action — Motion to stay proceedings before administration decree —

VOL. XVI.] (t. B., C. P., & EX. DIVISIONS. the fact in the affidavit. The creditor under the original statute is by the amending Act made to include a corporate body-not that a new power is given to such a body to register, but the meaning of the original creditor is extended-and that creditor is the creditor in the judgment itself, so that we read the statute as substituting the body for an individual in the very judgment itself; and,when the body is found there-that is in the judgment or the record-the agent may make the affidavit. In my opinion, there is no proof or statement whatever beyond that necessary. As to the other point, made upon the statement as to the property, it would lead to very serious consequences if such a degree of exact and positive averment as is contended for on behalf of the DefenÂdants were necessary. But in any case I am of opinion that the affidavit contains sufficient in the first part of the averment that they are entitled, and that the effect of that statement is not deÂ, stroyed by the words " or one of them." 173 Q. B. Div. 1385. MENSTER BANK V. MAHER. Cause shown allowed. Solicitors for the Plaintiffs : Maxwell, Weldon Co. Solicitor for the Defendants : D. J. Higgins. HIGGINS v. BROWNE (1). Appeal. Practice-Executor de son tort-Administration action-Motionto stay pro- 1885. • ceedings before administration decree-Judicature (Ireland) Act, section 27, Jan. 30. sub-section 5 ; section 28, sub-section 1. An action having been brought in the Common Pleas Division against the Defendant as executor de son tort of B. deceased, the Defendant obtained letters of administration to B. and then issued a writ in the Chancery DiviÂsion for administration of the real and personal estate of the deceased, and before obtaining a decree the Defendant moved the Common Pleas Division for an order to restrain the Plaintiff's action, and obtained an order staying the proÂceedings pending the administration suit (1) , Before Sin E. Suiadverr, C., FITZ GIBBON and BARRY, L. JJ. 174 LAW REPORTS (IRELAND). [L. IL I. Appeal. Held, by the Court of Appeal (reversing the order of the Common Pleas 1885. Division) that the Court had no jurisdiction to restrain the Plaintiff's action, as IltoGuts no decree for administration had been. obtained ; v. Per Sin E. SuiirvAN, C. :-Section 27, sub-section 5, of the Judicature BnowNz. (Ireland) Act, 1877, only gives the Court power to stay proceedings in cases where the Court of Chancery, before the Act, could have restrained the action. Quere-Has the Court, even. after decree, any power to restrain an action. against an executor de son tort? APPEAL by the Plaintiff Margaret Higgins from an order of the Common Pleas Division, dated the 21st day of January, 1885, whereby it was ordered that the Plaintiff's proceedings in the action be stayed pending a certain suit to administer the estate of Peter Denis Browne, deceased ; the Plaintiff to have her costs of the action up to and including the motion to stay proceedings, to be...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT