JOHN CONLAN, Assignee of the Assignees of JAMES BAKER v The Heir and Tertenants of THOMAS BODKIN

• Jurisdiction: Ireland
• Judgment Date: 06 June 1845
• Date: 06 June 1845
• Court: Court of Common Pleas (Ireland)

Common Pleas.

JOHN CONLAN, Assignee of the Assignees of JAMES BAKER

and

The Heir and Tertenants of THOMAS BODKIN.

Farran v. Ottiwell 5 Ir. Law Rep. 487.

Farrell v. Gleeson Vide post, p. 477.

Philips v. ManglesENR 11 East, 516.

Executors of Wright v. NuttENR 1 T. R. 388.

Stewart v. CottinghamUNK 6 Ir. Eq. Rep. 256.

Oƒ€™Brien v. RamENRENR 3 Mod. 187; S. C. Carth. 30.

Farran v. Ottiwell 2 Ir. Law Rep. 110.

Farran v. Ottiwell 6 Daw Rec. N. S. 10.

CASES AT LAW. 467 T. T. 1845. Common Pleas. JOHN CONLAN, Assignee of the Assignees of JAMES BAKER, V. The Heir and Tertenants of THOMAS BODKIN. Scxn FAc1As.-The writ recited the recovery of a judgment for £180 and damages, by James Baker, as of Michaelmas Term, in the fifty-third year of the reign of King George the Third (1812), against Thomas Bodkin-that the said Baker died intestate, and that administration of his goods and chattels was granted on the 29th of July 1825, to Ellen O'Donnell, who afterwards intermarried with Robert White; and afterÂwards, in Michaelmas Term 1828, it was considered that the said Robert and Ellen should have execution against the said Thomas for the debt and damages aforesaid, according to the force, form, and effect of said recovery. The writ then recited an assignment of said judgment by the said Robert and Ellen to John Conlan, as of Trinity Term 1842, accordÂing to the form of the statute, &c.; and that although judgment was thereupon given, and execution awarded in form aforesaid, yet execution remained to be made. The writ then recited the death of Thomas Bodkin, and that he died seized of several lands and tenements, and comÂmanded the Sheriff to make known to the heirs and tenants of the lands, which were of the said Thomas Bodkin, on the day of the rendition of the original judgment (December 21, 1812), to show cause why the debt and damages aforesaid should not be levied off all the lands and tenements which were of and belonged to the said Thomas Bodkin at the time of the rendition of the judgment aforesaid or afterwards, and rendered to the said John Conlan, according to the form of the recovery and statute aforesaid, &c. The writ then stated the return of the Sheriff of the heirs and tenants of the lands of which the said Thomas Bodkin was seized in his demesne as of fee, at the time of the rendition of the said original judgment. To this scire facias James Clarke, one of the said tenants, filed the following pleas:- First-* Executio non against him for the debt and damages aforesaid of the lands and tenements in the writ mentioned, because no part of the principal money of the said debt and damages, nor any interest thereon, was paid, nor any acknowledgment of the right thereto given in writing, signed by the said Thomas Bodkin deceased, or by him or his agent, or * This plea is bad for not stating the commencement of the period of limitation ; vide Fortescue v. AP Kone,1 J. & S. 341. 468 CASES AT LAW. by any other person or persons by whom the same was payable, or by the agent of any such person, to the said John Conlan, or to the said James Baker, or to any person entitled thereto, or to the agent of the said John Conlan, or of the said James Baker, or of any other person entitled thereto, within twenty years next before the time of the issuing of the said writ of scire facias, to wit, &c. ; and this he is ready to verify, wherefore he prays judgment, &c. Second-Executio non of the said lands and tenements, because a present right to receive the same debt and damages accrued to a person capable of giving a discharge for and a release for the same, to wit, to the said James Baker, more than twenty years before the suing forth said writ, to wit, on the 21st day of December 1812, to wit, at, &c.; and that no part of the principal money of the said debt and damages in the said writ mentioned, nor any interest thereon, was paid, nor any acknowledgÂment of the right thereto given in writing, signed by the said Thomas Bodkin deceased, or by his agent, or by any other person or persons by whom the said debt and damages was payable, or by the agent of any such person or persons, to the said James Baker, or to his agent, or to the said John Conlan, or to his agent, 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 the said writ of scire facias; and this he is ready to verify, &c. Third-Non-seizin of the said Thomas Bodkin, of the said lands, at the time of the rendition of the said judgment of Michaelmas Term 1812, in the said writ mentioned, or at any time after. To the first and second of these pleas, the plaintiff replied, precludi non, because that after the recovery of the said judgment, and the said writ of scire facias first mentioned, and within twenty years next before the time of the issuing of the said writ of scire facias, to wit, in Trinity Term 1828, at, &c., a certain other writ of scire facias to revive the said judgment, was duly issued out of, &c., and such proceedings were had and taken upon the said last mentioned writ of scire facias, that it was afterÂwards, to wit, in Michaelmas Term 1828, by the said Court, &c., conÂsidered, as in the said first mentioned writ of scire facias is set forth, that the said Robert and Ellen, in the said first mentioned writ of scire facias, should have execution against the said Thomas Bodkin, for the debt and damages aforesaid, according to the force, form, and effect of the said first mentioned recovery, &c., as by the said last mentioned writ of scire facias and the said judgment thereon remaining of record in the said Court, may more fully appear. And the said John Conlan further avers, that the said judgment whereby it was in Michaelmas Term 1828, considered that the said Robert and Ellen should have execution, &c., as set forth in the said writ of scire facias in this replication first aforesaid, was, and is, the same judgment had upon the said writ of scire facias in the replication CASES AT LAW. 469 secondly aforesaid, whereby it was in Michaelmas Term 1828, by the said Court, &c., considered as aforesaid, that the said Robert and Ellen should have execution against the said Thomas, for the debts and damages aforesaid, and not another and different judgment ; and this he is ready to verify, &c. To the third plea, the plaintiff replied the seizin of the conuzor after the time of the rendition of the judgment of Michaelmas Term 1812, concluding to the country. To the replication to the first and second pleas, the defendant rejoined executio non, because that the said Thomas Bodkin was not at the time of the rendition of the said judgment of Michaelmas Term 1828, or at any time afterwards, seized in his demesne as of fee, &c., of and in any of the said lands and tenements in the return to the said writ of scire facias mentioned; concluding with a verification and prayer for judgment...