Robert Morrogh and Walter Morrogh, Executors of Walter Morrogh, Deceased, v Richard Power

• Jurisdiction: Ireland
• Judgment Date: 22 April 1842
• Date: 22 April 1842
• Court: Exchequer of Pleas (Ireland)

Exch.of Pleas.

ROBERT MORROGH and WALTER MORROGH, Executors of WALTER MORROGH, deceased,

and

RICHARD POWER.

Paget V. FoleyENR 2 Bing. N. C. 679.

Palmer V. Algeo 1 J. & S. 501.

Brady V. Fitzgibbon 1 Ir. Law Rep. 295; S. C. 1 J. & S. 503.

Lanigan V. Fogarty 3 Ir. Law Rep. 185.

Nisi Prius, Martin V. Cunningham Arm. & Mac. 149.

See Lessee O'Sullivan V. M'Sweeny, 2 Ir. Law Rep. 89.

Gilmore V. ShuterUNKENR Jones,108; and see 2 Inst. 292; Barrington's case, 8 Rep. 136, b.; Fowler V. Chatterton, 6 Bing.258; Padden V. Bartlet, 5 Nev. & Man. 283, Per Tindal, C. J.

Truelock V. RoblyUNK 5 Jur. 1101.

Plumtree V. O'Dell 2 Law Rec. N. S. 121; S. C. 3 id. 133.

Smith V. Creagh Batty, 384.

Leaper V. TattonENR 16 East, 423.

Lessee O'Sullivan V. M'Sweeny 2 Ir. Law Rep. 94.

9G. 4, c. 14.

Johnstone V. Cottingham Jebb & B.33.

O'Hara V. Creagh 3 Ir Eq. Rep. 179.

O'Kelly V. Bodkin Id. 390.

Irwin V. Ormsby 2 Jebb & S. 91.

Brady V. Fitzgibbon 1 Ir. Law Rep. 295; S. C. 1 J. & S. 503.

Martin V. Cunningham Arm. & MAc. 149.

Wymer V. KembleENR 6 B. & C. 482.

Paget V. FoleyENR 2 Bing. N. C. 690; S. P. Probey V. Michell, 853.

Brady V. Fitzgibbon 1 Ir. Law Rep. 295; S. C. 1 J. & S. 503.

Glover V. Nagle 3 Ir. Law Rep. 21.

Johnstone V. Cottingham Jebb & B. 31.

494 CASES AT LAW. 1842. Exeh.of Pleas. ROBERT MORROGH and WALTER MORROGH, Executors of WALTER MORROGH, deceased, V. RICHARD POWER. Easter Term. (Exchequer of Pleas.) April 19, 22. A sci. fa. was SCIRE FACIAS to revive a judgment.-The writ, which was issued on the issued in 1839 11th of January 1839, recited that Walter Morrogh, in Trinity Term, to revive a judgment of 47th G. 3 (1807), recovered a judgment by confession against Richard 1h807, against the conusor ; Power (the defendant) for 426. 12s. 6d. of the late currency, debt, and t in 1827, a fifty-one shillings and seven pence, damages ; that Walter Morrogh had schedule was filed by the since died, but before his death had made his will and appointed his sons conusor,in the (theplaintiffs), Robert Morrogh and Walter Morrogh, his executors ; Court for the Relief of In- that the debt so recovered was a debt due to the said Walter Morrogh, solvent Debt- ors, contain- , deceased, on foot of a certain bond or writing obligatory of the obligatory trig an admis- Richard Power. The writ then proceeded as follows :-" And whereas sion of the judgment debt, "we are informed by the said Robert Morrogh and Walter Morrogh, but no pay " executors as aforesaid, that after the rendition of said judgment, to wit, ment or satis faction had " on the 9th day of March in the year 1827, the said Richard Power been made on account, nor " then being a prisoner in the actual custody of the marshal of the mar- any proceeding " shalsea of his late Majesty King George the Fourth, at the suit of one taken for re covery thereof, " Thomas Foley, within the meaning of the statutes then in force for within twenty " Relief of Insolvent Debtors in Ireland, did apply by petition in a sum years next be fore the issuing " mary way to the Court for Relief of Insolvent Debtors in Ireland for of the writ ; Held, that an "his his discharge from the custody aforesaid, according to the provisions acknowledg- " of said statutes, which petition was then and there filed in said Court ; ment in writ ing within the " and that a large sum of money, to wit, the sum of 220, being at the 40th section of "time of the filing of the said petition, and still, due by the said Richard the 3 & 4 W. 4, c. 27, was " Power on foot of said judgment, for principal money, besides interest not sufficient set up or "and costs, the said Richard Power did afterwards and within fourteen to give validity to cc days from the filing of said petition, and within twenty years before the the judgment which had "issuing of this writ, to wit, on the 9th day of March 1827, deliver been barred in " into the said Court a schedule pursuant to said statutes, containing 1833 (at the time of the " (amongst other things) a description of all and every the person and passing of that by the " , persons to whom he was then indebted, together with the nature and Act), operation of " amount of such debts respectively, and did then and there sign and the 8 G. 1, c. 4. Semble, that an admission of the debt in the schedule of an insolvent, is a sufficient acknowledgment to prevent a judgment from being barred by the 3 & 4 W. c. 27, s. 40. Itlua.re, whether the 8 G. 1, c. 4, has been repealed as to judgments, by the 3 & 4 IV. 4, c. 27? _ 'J fat 7#8. Vik.cqo.§ 3,9- CASES AT LAW. 495 "subscribe the said schedule, and then and there caused the same to be " filed in said Court, in which schedule so signed as aforesaid is contained "(amongst other things), an acknowledgment in writing by the said " Richard Power of the right to the sum of money due on foot of said " debt so due on foot of said judgment, which said acknowledgment is in " the words and figures following, that is to say " And which said acknowledgment was signed by the said Richard Power " in manner aforesaid, as by the said schedule, reference being thereunto " had, will more fully appear ; and which said bond in said acknowledgment " mentioned, is the same bond as the said bond or writing obligatory "mentioned in the record of said judgment and upon which said judgÂÂ" ment was recovered, as by said Robert and Walter as executors as " aforesaid, we are informed. Yet execution of the said judgment," &c. To this scire facias the defendant pleaded six pleas, whereof the first four were pleas of payment under the 8 G. 1, c. 4, and the fifth and sixth pleas of the 3 & 4 W. 4, c. 27. The fifth plea was in the following terms :-executio non: "Because "he saith that the said writ of scire facias was issued after the 31st day " of December 1833, to wit, on the 11th day of January in the year " of our Lord 1839, and because the said writ of scire facias did not " issue within twenty years next after a present right to receive the said " debt and damages in said scire facias mentioned had accrued to the " said Walter Morrogh in said recovery and said writ of scire facias "mentioned, to wit, on the day of the recovery of said judgment, the said "Walter Morrogh in said recovery mentioned being at the time of the "accruing to him of such right and from thence for a long time after, "to wit, until the time of his death, to wit, the 1st day of January 1831, " a person capable of giving a discharge for, or a release of the same ; and "because in the mean time no part of the principal money secured by "said judgment, or of the said debt or damages, nor any interest thereof, "or of any part thereof, bath been paid, and no acknowledgment of the "rights thereto bath been given in writing signed by this defendant by 496 CASES AT LAW. "whom said debt and damages in said scire facias mentioned were "payable, or by his agent, to the said Walter Morrogh in his lifetime or " to the said Robert or Walter, executors as aforesaid, or to either of " them, or to their or any of their agents respectively ; and this the " defendant is ready to verify," &c. Sixth plea was similar to the fifth. Replication to the first four pleas traversing payment modo et forma. Replication to the fifth plea, precludi non :-" Because they say that "after the rendition of said judgment, and within twenty years next "before the issuing of said writ of scire facias, to wit, on the 9th day " March 1827, the said Richard Power being then a prisoner," &c. [The insolvency proceedings, petition and schedule were here set forth in the same terms as in the scire facias. The replication concluded thus] :-" And which said acknowledgment was signed by the-said Richard " Power in manner aforesaid ; of which said petition and schedule conÂÂ" taining such acknowledgment as aforesaid, he, the said Richard Power "afterwards, and after filing of said schedule, and within twenty years "before the...