Kennedy v Whaley

• Jurisdiction: Ireland
• Judgment Date: 15 January 1848
• Date: 15 January 1848
• Court: Exchequer of Pleas (Ireland)

Exch.of Pleas.

KENNEDY

and

WHALEY.

Fortescue v. M'Kone 1 J. & S. 341.

Roakes v. Mansergh 1 Com. B. Re/p. 531.

Mahon v. Davoren 2 Hud. & 523.

Barber v. Shore 1 Jebb & S. 610.

Lynch v. Blake Smthe's Rep. 141.

Snook v. Mattock 6 Nev. & Man. 783.

Ottiwell v. Farran. in error 2 Ir. Law Rep. 113.

Tuckey v. HawkinUNK 11 Jur. 910.

54 CASES AT LAW. H. T. 1848. Exch.of.P0s. KENNEDY v. WHALEY. Jan. 15. To a scire SCIRE FACIAS upon a judgment obtained in 1823. Pleas, payment facsas upon a judgment re- and the Statute of Limitations. Replication to the latter, that the covered in 1823, the de- judgment was a judgment entered upon a bond payable at the fendant plead ed, amongst death of one J. W., which had occurred within twenty years. other pleas, Special demurrer to this replication, on the ground, amongst the Statute of Limitations other objections, that it was an argumentative traverse of the plea. The plaintiff replied, speciÂally traversing this plea, alleg. David Lynch (with whom was J. D. Fitzgerald), in support of ing that the judgment was the demurrer. a judgment entered on a Although there has been in this case a collateral agreement, it is bond condi tioned for the not the proper construction of the statute to hold that a present payment of the amount right to receive the sum payable means a right to receive in confor within six months after mity with an agreement entered into, perhaps by parol, controlling the death of one J. the judgment. The Statute of Limitations makes the proviso, that which bad oc- nothing in it shall operate to take out of the bar of the statute a curred within twenty years • judgment barred by the 8 G. 1. The 7 W. 3, cc. 10 and 11 (the Irish of the suing out of the scire Statute of Frauds), the 10 G. 3, c. 7, and all that class of statutes facias, and concluding down to the 9 G. 4, c. 35, show that the operative period of every with a verifi cation. Held, judgment is the time of its recovery ; and the entry of the judgment upon demur- rer, that the is the terminus a quo the statute is to be considered to operate. replication both dis- This replication besides is faulty in the mode of stating the traverse; closed a good answer to the the plea is that the judgment is on a bond appearing to give a right to plea, and needed not to recover in prasenti, and that within twenty years a present right to conclude to the . receive accrued to the plaintiff. The replication states that the con- country. dition...