Richard Watters v The Heir and Terretenants of George Lidwill

• Jurisdiction: Ireland
• Judgment Date: 12 June 1847
• Date: 12 June 1847
• Court: Court of Common Pleas (Ireland)

Common Pleas.

RICHARD WATTERS

and

The Heir and Terretenants of GEORGE LIDWILL.

Hobhouse v. Hamilton 2 Sch. & Lef. 207.

Ramsbottom v. BuckhurstENR 2 M. & S. 567.

Malcolmson v. Gregory 1 H. & Br. 310.

Maguire v. Armstrong Ibid, 313.

Barry v. Hoare 4 Ir. Law Rep. 103.

Creagh v. Fulton 5 Ir. Law Rep. 322.

Lewis v. Parkes 3 M. W. 133.

Dawes v. PapworthENR Willes, 408.

Malcolmson v. Gregory Batty, 561.

Mahon v. Joyce Glasc. 268.

Bruce v. Cooke 1 H. & Br. 310.

Mahon v. Davoren 2 Hud. & Br. 523.

Warrens v. O'Shee 5 Law Rec. N. S. 77; S. C. 1 Jebb & Sym. 504.

Ottiwell v. FarranENR 2 Ir. Law Rep. 110; S. C. 10 Cl. & Fin. 319.

Farrell v. GleesonENR 11 Cl. & Fin. 702; S. C. 7 Ir. Law Rep. 478.

Ryan v. CambieUNK 2 Ir. Eq. Rep. 328.

Conlan v. Bodkin 7 Ir. Law Rep. 467.

Rowe v. Murray 1 H. & Br. 296.

Barton v. Seymour Ibid, 304.

Preston v. Preston Cro. Eliz. 817.

Morgan v. Odlum Al. & Nap. 300.

Blakeston v. Martyn Sir W. Jones, 90.

Henry v. Jones Al. & Nap. 14.

Carroll v. Cooke 1 Jebb & Sy,. 33.

Hobhouse v. Hamilton 1 Sch. & Lef. 207.

Maguire v. Armstrong 1 H. & Br.313.

Barry v. Hoare 4 Ir. Law Rep. 97.

Holland v. FranklinENR 1 Leo. 184.

Tinkler v. WalpoleENR 14 East, 231. See the authorities on this subject, I Stark, Evid. 410.

Rex v. HopperENR 3 Price, 495.

Bailie v. ChandlessENR 3 Camp. 17.

Bruce v. Cooke 1 H. & Br. 310.

Lewis v. ParkesENR 3 M. & W. 133.

Malcolmson v. Gregory 1 H. & B. 310.

Fulton v. Creagh 5 Ir. Law Rep. 322, in notis.

Mahon v. Davoren 2 H. & B. 523.

Farran v. Beresford 10 Cl. & F. 319.

Farrell v. Gleeson 11 Cl. & F. 702; S. C. 7 Ir. Law Rep. 467.

Barrett v. Bermingham F. & K. 564.

Hill v. Stawell 2 Jebb & Sym. 389.

Wrixon v. VizeUNKUNK 5 Ir. Eq. Rep. 183; S. C., 2 D. & War. 192.

2 Phil. Ev. 12, 13.

Cowper v. Longworth Moore, 545.

Foster v. JacksonENR Hobart, 52.

Regina v. Millis 10 Cl. & F. 534.

Jebb & Bourke, 259.

Taylor v. WatersENR 5 M. & S. 103.

Vernon v. GoodrickENR 1 Str. 5.

Carroll v. Cooke 1 Jebb. & S. 33.

Jefferson v. MortonENR 2 Saund. 20.

Adams v. SavageENR 2 Salk. 601.

In re John Bagot 8 Ir. Law Rep.295.

ENR Vide 2 Saund. 71, note 4.

ENR Vide Greenshields v. Harris, 9 M. & W. 774.

Howard v. PittENR 1 Salk. 261, & 2 Saun, 72d.

Erby v. ErbyENR 1 Salk. 80.

Taswell v. StoneENR 4 Burr. 2454.

Benwell v. BlackENR 3 T. R. 643.

Snook v. Mattock 6 New. & Man. 788.

Blakeney v. Ware 1 Jebb & Sym. 524.

Henry v. Kelly 2 Hud. & Br. 591.

Carroll v. Cooke 1 Jebb & Sym. 33.

Jefferson v. MortonENR 2 Saund. 20.

Smith v. AngelENR 1 Salk. 355.

Barret v. TrotmanENR 3 Lev. 205.

362 CASES AT LAW. T. T. 1847. CommanPkas. RICHARD WATTERS v. Jan. 19,22,26. May 28. The Heir and Terretenants of GEORGE LIDWILL. M June 1, 12. To a scire SCULE FAcus.-The writ, tested as of the 8th of May in the facias in 1846, 9th year of the reign of her present Majesty, and directed to the to revive a judgment re- Sheriff of the county of Tipperary, was issued to revive a judg covered in 1811 by W. ment obtained by George Watters in Hilary Term, 51 G. 3 (1811), against L., against George Lidwill for 640. l ls. debt, and 2. 13s. 6d. damages. which scire facias stated After reciting the recovery of this judgment, and the death of the the recovery in conuzee before execution thereupon had, having first made his will, 1827 of a judgment in and thereby appointed Patrick Nolan and Charles John Wade his an action of debt by the executors, and probate by them, the writ proceeded thus : " And executors of gc whereas afterwards, in or as of Trinity Term in the 8th year of W. against L. for the amount of the judgment debt of 1811, and of another judgment debt due from L. to W. and contained an averment that upon the recovery of the judgment in 1827, a present right to receive the amount of the judgment of 1811 accrued to the executors of W.: Held, that a plea of the Statute of Limitations (3 & 4 W. 4, c. 27, s. 40) was a valid defence. A judgment in an action of debt upon a judgment has not upon the latter the same effect as a judgment of revivor by scire facias. To a scire facias upon a judgment setting forth an assignment by deed of the judgment debt " according to the form of the statute in such case made and provided, as by the memorial and record of the same enrolled, &c., manifestly appears," a plea that no one witness to the memorial who was a witness to the deed of assignÂÂment, made an affidavit at the foot of the memorial of the true perfection of the deed of assignment and memorial before the officer, &c., where the judgment was entered secunclum fornzam statuti, and that therefore the judgment was not duly assigned seeundum formam statuti, is bad as amounting to a plea of nul tiel record. Like law as to a plea (to the same scire facias) alleging that it is stated in the memorial, that the deed of assignment bears date the 19th of June 1843, and that it is not stated in the memorial, that the deed was perfected on any other day, as appears by the record of the memorial, and averring that the deed was not perfected on the 19th of June 1843, but was, in fact, perfected on another day. A judgment, and by the executors of the conuzee a judgment in debt obtained for the amount of the debt secured by the original judgment, and of another debt ; death of the debtor in execution under a ca. sa. upon the second judgment, is no bar to the assignee of the original judgment having execution against the lands of the CO nuzor. To a sci. fa. on a judgment the return alleged that the conuzor, at the time of the rendition of the judgment, was seised of a descendible freehold, but did not aver it to be still subsisting : plea by the heir that A B was seised in fee before the issuing of the sci. fa. and being so seised before the issuing of the sci. fa., to wit, on, &c., demised to the heir for one year, and so from year to year, by virtue of which demise, which is still subsisting, the heir is still possessed, and that the conuzor was not at the time of the rendition of the judgment seised of a descendible freehold still subsisting. Replication, that he was seised at time of rendition of judgment mock et forma as in sci. fa. and return stated. Quare, first, whether replication is bad for not averring the descendible freehold to be still subsisting ; secondly, whether plea is bad, being a plea by the heir of non-seisin in the ancestor? "the reign of his late Majesty King George the Fourth (1827), the T. T..1847. Common . " said P. Nolan and C. J. Wade, as executors as aforesaid, impleaded Pleas "the said George Lidwill, in our said Court of the Bench, of a plea WATTEItS v. "of debt for the recovery as well-of the said debt and damages;" LIDWILL. (viz., recovered by the judgment of 1811), ".as also for the recovery " of a certain other debt of 774. 19s. 4d. sterling, and 2. 14s. 2d. " sterling damages, which the said George Watters had theretofore, " to wit, in or as of Trinity Term, in the 53rd year of the " reign of his late Majesty King George the Third, recovered against "the said George Lidwill ; and such proceedings were thereupon had, " that afterwards, in Trinity Term in the 8th year of the reign of "his said late Majesty King George the Fourth, the said P. Nolan " and C. 3. Wade, executors as aforesaid, by the consideration of "the said Court recovered against the said George Lidwill the sum of "1420. 18s. late Irish currency, making 1311. lls. 11d. sterling "British currency, being the aggregate of the said several debts and " damages, together with the sum of 16. 18s. 8d., which in and by "the said Court of, &c., were then and there adjudged to the said "P. Nolan and C. 3. Wade, as executors as aforesaid, for their costs " and charges by them. about their suit in that behalf laid out and " expended ; and thereupon a present right to receive the said sum " of 640. 1 1 s. debt, and 2. 13s. 6d. damages, secured by the " said judgment so as aforesaid recovered by the said George Watters " against the said George Lidwill, accrued to the said P. Nolan and " C. J. Wade as executors as aforesaid, who then and there were " capable of giving a discharge for, or release of the same. And " whereas afterwards, to wit, on the 19th day of June, in the year of " our Lord 1843, to wit, at &c., the said P. Nolan and C. J. Wade, " executors as aforesaid, by the name and description of P. Nolan, " late of, &c., but now of, &c., and C. J. Wade, of &c., execuÂÂ" tors of the above named George Watters, by deed duly "executed, transferred, assigned and made over the said judgment " debt and damages so recovered by the said George Watters against " the said George Lidwill, as aforesaid, to one John Burke, by the "name and description of John Burke, of &c., according to " the form of the statute in such case made and provided ; as by " the memorial and record of the same enrolled in our Court here in "Trinity Term in the 7th year of our reign, manifestly appears. "And whereas afterwards, to wit, on the 17th day of January, in " the year of our Lord 1846, to wit, at &c., the said John Burke by " deed duly executed, transferred, assigned and made over the said " judgment debt and damages so recovered by the said George " Watters against the said George Lidwill as aforesaid, to Richard " Watters by the name, &c., according to the form of the statute in " such case made and provided, as by the memorial and record of the " same enrolled in our Court here in Hilary Term, in the 9th " year of our reign, manifestly appears." After reciting the death of George Lidwill the conuzor, and that execution of the judgment of 1811 yet remained to be done, the scire facial concluded in the usual manner. The Sheriff returned that he had summoned Frederick Lidwill as heir of George Lidwill, and Charles Lidwill and several others particularly named as terretenants of certain lands therein specified as being in his bailiwick, " which were the lands and tenements of " said George Lidwill in the within writ named, in...