Prendergast v O'Gorman

• Jurisdiction: Ireland
• Judgment Date: 27 June 1933
• Date: 27 June 1933
• Court: High Court (Irish Free State)

Prendergast v. O'Gorman

JOHN PRENDERGAST

Plaintiff

and

PATRICK O'GORMAN, Personal Representative of JAMES O'GORMAN, Deceased, Defendant (1)

High Court.

Statute of Limitations - Acknowledgment - Claim for goods sold and delivered - Action by creditor against administrator of deceased debtor - Debt included by administrator in schedule of assets of deceased - Whether an acknowledgment sufficient to satisfy statute - Common Law Procedure Amendment Act (Ir.), 1853 (16 & 17 Vict. c. 113), sects. 20, 24.

The plaintiff issued a Civil Bill for a certain sum, the price of goods alleged to have been sold and delivered to J. O'G., deceased, the defendant being the administrator of J. O'G. J. O'G. died in April, 1924, and administration was not taken out by the defendant until 1929. The Civil Bill was served in May, 1932. The defendant had set out the debt in the affidavit made by him for estate duty, and the plaintiff contended that this operated as an acknowledgment of the debt which would take it out of the Statute of Limitations.

Held by the High Court (Meredith and Johnston JJ.), affirming the decision of the Circuit Court Judge, that the plaintiff's contention was unsustainable and the debt was statute barred.

Spollan v. Magan, 1 Ir. C.L.R. 691, discussed and distinguished.

Appeal from the Circuit Court.

The plaintiff issued a Civil Bill for £155 4s. 0d. for goods sold and delivered to James O'Gorman, deceased. The defendant was sued as personal representative of the said James O'Gorman. The deceased had a running account with the plaintiff from March, 1918, up to the time of his death which occurred in April, 1924. Payments on account were made up to August, 1923, by the deceased. Representation to the estate of the deceased was not taken out until 1929 when letters of administration were granted to the defendant, a son of the deceased. Two letters referring to the amount due were written by the deceased's widow: one of which was dated the 24th November, 1924, the other was not dated. The letter of 24th November, 1924, requested the plaintiff to furnish his account to her, and the other letter asked him to send it to her solicitor. A certified copy of the schedule of assets was produced to the Circuit Court Judge, and amongst the liabilities set out in the affidavit for estate duty was the amount now sued for by the plaintiff. The Civil Bill was served on the defendant on the 24th of May, 1932.

In the Circuit Court the plaintiff contended...