Re Fitzgerald's Estate; ex parte Andrew Comyn, Appellant

• Jurisdiction: Ireland
• Judgment Date: 24 April 1860
• Date: 24 April 1860
• Court: Court of Appeal in Chancery (Ireland)

Ch. Appeal.

In re FITZGERALD'S ESTATE; Ex parte ANDREW COMYN,

Appellant.

M'Dowell v. WheatleyIR 7 Ir. Com. Law Rep. 562.

Crosbien v. Murphy 8 Ir. Com. Rep. Law Rep. 301.

Fonblanque v. LeeIR 7 Ir. Com. Law Rep. 550.

Haslope v. ThorneENR 1 M. & S. 103.

Blackwell v. England 8 Ell. & B. 541.

Wills v. AdeyENR 2 C. B. 246.

Osborne v. Gough 3 B. & p. 550.

278 CHANCERY REPORTS. 1860. Ch. Appeal. nn•n•n••vnS Court of ifpprni fn Cbanterp.. In re FITZGERALD'S ESTATE ; Ex parte ANDREW COMYN, Appellant. FRANCIS FITZGERALD, who was possessed of certain leasehold premises in the town of Galway, executed a bond and warrant, conditioned for the payment of 700, upon which a judgment was entered in Hilary Term 1840. The judgment was registered in 1845, and re-registered on the 21st of July 1856, it having, in 1854, become vested in the appellant. In 1856, Patrick M. Lynch obtained a judgment against Francis Fitzgerald, in the Court of Common Pleas, for the sum of 894. 10s. 10d., besides 2. 2s. 8d. costs, and registered the same as a mortgage, under the provisions of the 13 & 14 Vic., c. 29. Francis Fitzgerald died in 1857 ; and, on the 8th of March 1859, Patrick M. Lynch filed a supplemental affidavit, under the proviÂÂsions of the 21 & 22 Vic., c..105. John Redington had obtained a judgment against Francis FitzÂÂgerald, in Trinity Term 1855, and registered the same as a mortÂÂgage on the 25th of October 1855 ; but the affidavit was defective, in not containing a substantive statement of the plaintiff's last known place of abode. The estate of Francis Fitzgerald was sold in the Incumbered Estates Court on the 8th of April 1859 ; and upon the settlement of the final schedule of incumbrances, Judge Hargreave ruled that the supplemental, affidavit filed by Patrick M. Lynch was invalid, having been sworn subsequently to the death of the conusor ; but that his original affidavit was sufficient, and that his judgment was, therefore, entitled to be paid in* priority to the judgment of the appellant. From that decision the present appeal was brought, upon the grounds, among others, that the affidavit originally filed by Patrick CHANCERY REPORTS. 279 In re secondly ; because the sum of 3. 2s. 8d., mentioned therein as FITZGER- having been recovered fol. costs, did not correspond with the record, ALD'S ESTATE. upon which the sum for costs appeared to be 2. 2s. 8d. Lynch's original affidavit ran as follows : "Common Pleas. Patrick Mark Lynch, of KenÂÂmore-lodge, in the county of the town of Galway, Esq., aged thirty years and upwards, the plaintiff in this cause, maketh oath and saith that the defendant, by his name and description of Patrick Mark Lynch, of Renmore-lodge in the county of the town of Galway, Esq., did, on the 27th day of February, in the year of our Lord 1856, and in or as of Hilary Term, in the said year of our Lord 1856, obtain a judgment in Her Majesty's Court of Common Pleas in Ireland, against Francis FitzÂÂgerald, late of the town of Galway, but now of the county of Dublin, the defendant in this cause, by the name and description of Francis Fitzgerald, late of the town of Galway, but now of the county of Dublin,' for the sum of 894. 10s. Od. sterling, besides 3. 2s. 8d. for costs, as by the records of said Court may more fully appear. This deponent further saith that, to the best of deponent's knowledge, information and belief, the said defendant in this suit is, at the time of swearing this affidavit, seised and possessed of, or has disposing power, which he may, without the assent of any other person, exercise for his own benefit, over and issuing out of certain tenements, hereditaments and premises hereinafter mentioned ; that is to say.-[Here followed a description of the lands sought to be affected.]-Deponent further saith that the sum of 894. 10s. Od., besides the sum of 3. 2s. 8d. for costs, aforesaid, so secured by said judgment, as aforesaid, with interest thereon, still remains justly due and owing to this deponent, on foot of said judgment, over and above all just and fair allowances, and that said judgment is still in full force, virtue and effect in law." 280 CHANCERY REPORTS. 1860. - SUPPLEMENTAL AFFIDAVIT. Ch. Appeal. ......-„--0 "In the Court-of Common Pleas. In re "Patrick M. Lynch, of Renmore, in the county] FITZGER- Patrick Mark Lynch, of ALIA of the town of Galway, Esq., Plaintiff; ESTATE. Francis Fitzgerald, late of the town of Galway, Renmore, in the county of - but now of the...