John Claudius Beresford and Catherine Mary Ottiwell v William Farran,

JurisdictionIreland
CourtCourt of Exchequer Chamber (Ireland)
Judgment Date05 February 1840
Date05 February 1840

EXCHEQUER CHAMBER.

JOHN CLAUDIUS BERESFORD and CATHERINE MARY OTTIWELL
and
WILLIAM FARRAN,

6 Law Rec. 2d ser. 10.

Ram v. O'BrienENRENRENRENR 3 Mod. 170; S. C. Comb. 108; S. C. Carth. 30; S. C. Holt. 97.

Maddox v. Bond Ir. T. R. 332.

Reniger v. Fogossa Plowd. 9.

Trexivan v. Lawrence 2 Ld. Rayd. 1050.

Saunders' ReportsENR 2 Saund. 71.

Wright v. NuttENR 1 T. R. 388.

UNKUNKENR Fide Executors of Ottiwell v. Farran, 6 Law Rec. 2d Ser. 10; S. C. 1 Sausse & Scully, 218, n.; keely v. Bodkin, 5 Law Rec. 2d Ser. 224; S. C. 1 Sausse & Scully, 211; Crofts v. Hewson, 5 Law Rec. 2d Sar. 263; Finch v. Fitzgibbon, 6 Law Rec. 2d Ser. 312.

Crofts v. Hewson 5 Law Rec. 2d Ser. 266.

O'Brien v. RamENR 3 Mod. 186.

Crofts v. Hewson 5 Law Rec. 2d Ser. 263.

JUDGMENT REVIVOR STATUTE OF LIMITATIONS, 3 & 4 W. 4, c. 27 PLEADING DEPARTURE.

HILARY TERM, 1840. IN THE EXCHEQUER CHAMBER. Wednesday, February 5th. JOHN CLAUDIUS BERESFORD and CATHERINE MARY OTTIWELL V. WILLIAM FARRAN,* ( In Error from the Court of Queen's Bench.) JUDGMENT-REVIVOR-STATUTE OF LIMITATIONS, ' 3 & 4 W. 4, c. 27-PLEADING- DEPARTURE. The period of SCIRE FACIAS to revive a judgment. The writ, which was directed to limitation pre scribed by the the sheriffs of the county of the city of Dublin, was tested on the 31st 3 & 4 W. 4, c. of January, in the 7th year of the reign of King William the 4th 27, a. 40, be gins to run (1837), and recited that Henry Ottiwell, in Hilary Term, in the 50th against a judg- ment from the Year of the reign of King George the 3d (1810), recovered against John date of the last Dunbar as well a certain debt of 200 sterling, by the acknowledgment revival, and not from the of the said John Dunbar, as 2. 9s. 6d. damages, sustained as well by entry of the reason of the detention of the debt, as for expenses and costs. It fur original judg ment. Fos- ther recited, that Ottiwell and Dunbar afterwards died, Ottiwell hay TER, B. dis- . ing made his will, and appointed John Claudius Beresford and Catherine sentiente To a scare M. Ottiwell (the plaintiffs), and one Richard Moore, his executors; that facies to re vive a judg- Moore died, and that J. C. Beresford obtained probate of the will, saving went brought the right of the said Catherine M. Ottiwell ; that Dunbar died seized of by the execu tors of the con- lands and tenements in fee simple, and of several descendible freeholds. usee, against heir and The sheriffs were therefore commanded by the writ to make known the terre-tenants to the heir of the said John Dunbar, and also to the tenants of the of the conusor, the defendant, lands and tenements of the said John Dunbar, whereof he or any a terre-tenant, person or persons to the use of him and his heirs, was or were having pleaded the 40th sec- seized in his or their demesne as of fee, or of a descendible freehold, in tion of the the term of the rendition of the judgment, to come and shew cause why above statute, the plaintiffs the plaintiffs should not have execution against them for the debt and replied a judg- damages aforesaid of the lands and tenements which were of the said ment of revivor recovered by r n John Dunbar at the time of entering the judgment, or at any time since, themselves against the according to the force, form, and effect of the recovery aforesaid. conusor,within '0 years next before the issuing of the scare facies:- Mid, on demurrer, that the replication was good. *The report of this case has been furnished by Mr. Ross S. MOORE. HILARY TERM, THIRD VICTORIA. 111 The sheriffs returned, that they had warned the co-heiresses of the conusor, and Farran, the defendant, who was one of the terreÂÂtenants of the lands which were of the said conusor at the time of the rendition of the judgment. To the above writ the defendant Farran pleaded the following pleas, founded on the 40th section of the 3 & 4 W. 4, c. 27.* First plea.-That the plaintiffs ought not to have execution against. him for the debt and damages aforesaid of the lands and tenements in the return of the writ of scire facias mentioned, whereof he was returned tenant, " Because he says that no part of the principal money of the said " debt and damages in the said scire facias mentioned, nor any interest " thereon, was paid, nor any acknowledgment of the right thereto, given "in writing signed by the said John Dunbar, or by him or his agent, " or by any other person or persons by whom the said judgment in the " said scire facias mentioned was payable, or by the agent of 'any such " person to the said Henry Otti well, or to the said John Claudius BeresÂÂ" ford, or Catherine Mary Ottiwell, or to any other person entitled "thereto, or to the agent of the said Henry Ottiwell, John Claudius " Beresford, or Catherine Mary Ottiwell, or to any other person entiÂÂ" tied thereto within twenty years next before the time of the issuing "of the said writ of scire facias aforementioned, to wit, at Dublin aforeÂÂ" said, in the county of the city aforesaid. And this be is ready to verify, " wherefore," &c. Second plea.--Executio non of the debt and damages, &c., " BeÂÂ" cause he saith that a present right to receive the same debt and " damages accrued to a person capable of giving a discharge for and a " release of the same, more than twenty years before the suing forth of " said writ of scire facias, to wit, on the 1st day of November, in the " year of our Lord 1816, at the place aforesaid, and that no part of the " principal money of the said debt and damages in the said writ men • "tinned, nor any interest thereon, was paid, nor any acknowledgment "of the right thereto, given in writing signed by the said John Dunbar, " or by his agent, or by any other person or persons by whom the "said debt and damages were payable, or by the agent of any such "person or persons, to the said Henry Ottiwell, or to the said.John Which enacts, that after the 31st of December, 1833, "No action, or suit, or other "proceeding, shall be brought to recover any sum of money secured by any mortgage, "judgment, or lien, or otherwise charged upon, or payable out of, any land or rent, " at law or in equity, or any, legacy, but within twenty years next after a present "right to receive the same shall have accrued to some person capable of giving a dis charge for, or release of the same ; unless, in the meantime, some part of the "principal money, or some interest thereon, shall have been paid, or some acknowÂÂledgment of the right thereto shall have been given in writing, signed by the person "by whom the same shall be payable, or his agent, to the person entitled thereto, or "his agent ; and in such case, no such action, or suit, or proceeding, shall be brought "but within twenty years after such payment or acknowledgment, or the last of such " payments of acknowledgments, if snore than one, was given." 112 IN THE EXCHEQUER CHAMBER. 'i Claudius Beresford, or Catherine Mary Ottiwell, 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, "within twenty years next before the time of the issuing of said " writ of scire facias. And this he is ready to verify ; wherefore," &c. To these pleas the plaintiffs replied, that "They ought not to " be precluded or delayed from having execution against the said " William Farran for the debt and damages aforesaid, of the lands "and tenements in the return of the writ of scire facias aforesaid, " mentioned, whereof he is returned tenant, because they say, that "after the rendition of the said judgment in the said writ of scirefacias "mentioned, and within twenty years next before the time of the " issuing of the said writ of scire facias to wit, in 1.11ichaelmas Term, "in the 58th year of the reign of our late Sovereign Lord King George " the Third, to wit, at Dublin aforesaid, in the county of the city of " Dublin aforesaid, 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 "of our said Lord the King, before the King himself; and the said "John Claudius Beresford and Catherine Mary Ottiwell further say, " that such proceedings were had and taken upon the said last-men. " tioned writ of scire facias, that it was afterwards, by the said Court of " our said Lord the King, before the King himself, considered that the " said John and Catherine should have their execution against the said " John Dunbar, in the said writs of scire facias respectively mentioned, " for the debt, damages, expenses, and costs aforesaid, according to the " force, form, and effect of the recovery aforesaid, and soforth, to wit, " as of Michaelmas Term aforesaid, in the 58th year of the reign of our "said late Lord King George the Third, at Dublin aforesaid, in the " county of the city aforesaid, as by the said last mentioned writ of scire "facias, and the said judgment thereon, of record in the said Court of " our said Lord the King, before the King himself, may fully appear. "And this they the said John and Catherine are ready to verify ; whereÂÂ" fore they pray judgment and execution against the said William FarÂÂ" ran for the debt and damages aforesaid of the lands and tenements in "the. return of the said writ of scire facias above mentioned, to be "adjudged to them, and soforth." To this replication the defendant demurred generally, and the plainÂÂtiffs having joined in demurrer, the case was argued in the Court of Queen's Bench in Michaelmas Term 1837, and judgment given by that Court for the plaintiffs. Upon this judgment the present writ of error was brought. Common errors assigned, and joinder in error. The case was argued in the Court of Exchequer Chamber, in MiÂÂchaelmas Term, 1839, by Mr. Gilmore, Q. C., and Mr. Sproule, for the plaintiff in error, and by Mr. John Brooke, Q.C., and Mr. Fitzgibbon fo r HILARY TERM, THIRD VICTORIA. 113 the defendants in error : and having stood...

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