Hugh Simpson v William Taylor and Others Robert Wilson, Petitioner; William Taylor, Respondent. James Rispin v William Taylor and Others

• Jurisdiction: Ireland
• Judgment Date: 06 December 1844
• Date: 06 December 1844
• Court: Rolls Court (Ireland)

Rolls.

HUGH SIMPSON

and

WILLIAM TAYLOR and others.

ROBERT WILSON,

Petitioner;

WILLIAM TAYLOR,

Respondent.

JAMES RISPIN

and

WILLIAM TAYLOR and others.

Williams v. CraddockENR 4 Sim. 313.

Burdon v. KennedyENR 3 Atk. 739.

Shirley v. WattsENR 3 Atk. 200.

Hanley v. Lord Langford 5 Law Rec. N. S. 203.

Angell v. Draper 1 Ver. 399.

In re PerrinUNK 4 Ir. Eq. Rep. 362.

Williams v. CraddockENR 4 sim. 313.

Balch v. WastallENR 1 P. Wms. 445.

1844. Rolls. LUCKIE V. FORSYTH. 182 CASES IN EQUITY. that they had authority from the said executors to act on their behalf in this country relative to the concerns of the firm of Cameron and Co.; and that it was by their authority said Messrs. O'Beirne and Co. had filed the said charge in Hamilton v. Forsyth. MASTER OF THE ROLLS. Let service of the subpoena to appear and answer, with the copy of the bill and usual notice, be made upon George Kenny, the solicitor who verified the charge filed on behalf of the defendants in Hamilton v. Forsyth and let the service, when made, be deemed good service on the said defendants.* * See the case of Hothouse v. Courtney, 12 Sim. 140, and the cases in the notes thereto ; also Weymouth v. Lambert, 3 Beay. 333; Lane v. Hardtacks, 5 Beay. 222; Cooper v. Wood, 5 Beay. 391; Murray v. Vibart, 9 Jur. 173 ; Hereby v. Holmes, 9 Jur. 225. HUGH SIMPSON v. WILLIAM TAYLOR and others. ROBERT WILSON, . • . Petitioner ; WILLIAM TAYLOR, . • . Respondent. JAMES RISPIN v. WILLIAM TAYLOR and others. Dec. 6. R., a judgÂment creditor, having sued out a fi. fa. in 1840, on which there was a return of nulls bona (the debÂtor's leasehold estate being previously mortgaged), filed his bill on the 16th of November THE bill in the first cause had been filed in June 1838, by the plaintiff, for a foreclosure and sale on foot of a mortgage executed previous to 1837 by the defendant to him of certain lands in the county of Dublin, and a house in Leeson-street in the city of Dublin, held by the defendant for a residue of a term of nine hundred and ninety-nine years. In the month of April 1839 a receiver was appointed in the first cause over the premises, who was continued until the sale in 1843. In Easter Term 1837, Robert Wilson obtained a judgment against Taylor in the Common Pleas, for the penal sum of £1200. 1840. W., a prior judgment creditor, subsequently presented his petition for a receiver, and by an order in the cause and matter, and also in the cause of the prior mortgagee, a receiver was appointed. The lands having been sold for the payment of the mortgage, R. and W. applied for the surplus fund. Held, R. was entitled to it in priority to W. The right acquired by the suing out of the fi. fa. was not lost on the return of the writ. The right of the judgment creditor, before the return of the writ, is but inchoate and incomplete ; but where on the return, it appears that his executoris frustrated by a legal impediment, then the equitable remedy is called into operation. CASES IN EQUITY. 183 In Easter Term 1840, James Rispin recovered judgment against Taylor for the sum of £150. 19s. 32d., and caused a writ of Afa. to be issued against the goods of Taylor, bearing teste the 17th of June 1840; the writ was issued on the 20th of October, delivered to the Sheriff of the city of Dublin on the 24th of the same month, and made returnable on the 2nd of November 1840. On the 7th of November 1840 the Sheriff filed the writ, with a return of Huila bona. On the 16th of November 1840 James Rispin filed his bill in the second cause, setting forth the issuing of the writ offi.fa., and the Sheriff's return of nulla bona thereon, and praying payment of the sum due to him on foot of the judgment recovered by him ; but he did not proceed further to prosecute his suit. On the 5th of December 1840 Wilson presented his petition on foot of his judgment ; and by an order of the 7th of the same month, the receiver appointed in the first cause was extended to the matter of his petition. By consent of the parties in the two causes and the matter, it was agreed that Wilson and Rispin should prove their demands in the first cause and obtain a separate report ; and accordingly they filed charges in the office on foot of their respective demands, and proved the same. The lands and house were sold in 1843, under the decree in the first...