Re Nixon's Estate

• Jurisdiction: Ireland
• Judgment Date: 17 December 1874
• Date: 17 December 1874
• Court: Court of Appeal in Chancery (Ireland)

Ch. App.

IN RE NIXON'S ESTATE.

Sterndale v. HankinsonENR 1 Sim. 393.

In re Power's EstateUNK 11 Ir. Ch. Rep. 295.

In re Colclough's EstateUNK 8 Ir. Ch. Rep. 330.

Bennett v. Bernard 12 Ir. Ch. R. 229.

Berrington v. Evans 1 Yo & Coll. (Exch.) 434.

Carroll v. DarcyUNK 10 Ir. Eq. Rep. 321.

Landed Estates Court — Charge upon land — Owner's petition for sale —— Statute of Limitations — Uniformity of decision.

VOL. IX.] EQUITY SERIES. 7 forfeiture of the Owners' estate, and declare that they are entitled L. E. Court. to charge 3d. per share for the first month, 3d. per share for the 1874. second month, 3d. per share for the third month, and so on. In re Let the accounts as regards Lots Nos. 2, 4, and 5, be sent ESTATE. back to the Examiner to vouch the amount properly chargeable for fines in accordance with that direction ; and let Mr. Davis pay to the Petitioners all costs properly and necessarily incurred by reason of his delay in bringing the matter under the notice of the Court-that is the costs of taking the former accounts, and of taking the accounts as now directed, and of this application. Order accordingly. Solicitor for the Petitioners : Mr. W. B. Armstrong. Solicitor for Mr. Davis : Mr. B. D. Bates. , A /"Ge-d41 •/: /73 IN RE NIXON'S ESTATE. Ch. App. Landed Estates Court-Charge upon land-Owner's petition for sale-Absolute 1874. order-Statute of Limitations-Uniformity of decision. Nov. 23, 24. Dec. 17. An absolute order for sale made on an owner's petition to the Landed Estates Court for the sale of lands charged with a legacy bars the operation of the Statute of Limitations as against the legatee. Decision of FLANAGAN, J., affirmed. In re Colelough's Estate (8 Ir. Ch. R. 330) commented on, explained, and (with a qualification) followed. Per CHRISTIAN, L. J. It is better that law should be certain than that it should be abstractly correct. APPEAL by the Owner and Petitioner in the Landed Estates Court from an order of Judge Flanagan of the 8th of June, 1874,. allowing the objection of the Respondents, James Kerr and wife, to the schedule of incumbrances, and ordering that they should be returned thereon as entitled to the legacy claimed by them (1). (1) The following is the judgment of carefully, having regard to the deci- June 8. JUDGE FLANIGAN : sion in In re Colelough's Estate. It is I have considered this case very manifest that, if I were to adopt the 8 THE IRISH REPORTS. [I. R. Ch. App. The facts of the case are succinctly stated in the judgment of 1874. the Lords Commissioners. In re Nixou's RiTATE. Mr. Monahan, Q. C., and Mr. Beeves, for the Appellant. A bill cannot be filed by one creditor on behalf of another so as to take the latter's case out of the Statute of Limitations : Berrington v. Evans (1), followed. in. 0' Kelly v. Bodkin (2) ; and. in Hutchins v. O'Sullivan (3) ; also approved of in Bermingham v. Burke (4). As to further instances in which litigation by other creditors has been held. not to bar the Statute : Watson v. Birch (5), and.. Humble v. Humble (6). Reference is made in Shelford's view put forward by Mr. Monahan in his learned and able argument, I should be substantially reversing not only the decision, but also the ratio decidendi in that ease ; and I am not prepared to do that. The ground and the broad principle of the decision in that case, as it was stated by the Lord Chancellor, is that this Court is a public trustee for all parties interested in property ordered to be sold here ; and that the Statute of Limitations is inapplicable for the purpose of barring any claim which was not barred at the time of the preÂÂsentation of the petition for sale ; and the Lord Justice of Appeal laid down the same proposition in language equally clear and forcible. It may, perhaps, appear hard to reÂÂconcile the decision in that case of In re Colclough's Estate with the words of the Statute of Limitations, and with the decisions and the reasonÂÂing of the decisions in the cases referred to by Mr. Monahan. I think that there was great force in his argument; and, if the question before me had been res nova, I might, perhaps, have acted otherwise ; but, as it is, my hands are tied by the decision of the Court of Appeal in Chancery in thiscountry, and I have not the slightest intention of acting contrary to it. I have therefore no alternative but to allow the claim of these legatees in Canada, so far as they may be able to establish it ; that is to say, the legacy of £150 claimed by their objection, with such interest thereon as they can prove to be due. In other words, having regard to the decision in the case of In re Colclough's Estate, I hold that the claim of these objectors is not barred by the Statute of Limitations. I would observe that Judge Hargreave gave directions that these parties should be served with notice ; but the solicitor having the carriage did not serve them or make the slightest effort to do so. In fact, he seems to have deliberately omitted to do so in order that he might be able to avail...