Russell, Executrix, v Martin

• Jurisdiction: Ireland
• Judgment Date: 03 November 1848
• Date: 03 November 1848
• Court: Exchequer of Pleas (Ireland)

Exchequer of Pleas.

RUSSELL, Executrix,

and

MARTIN.

Lister v. Mundell 1 Bos. & Pull. 427.

Slingsby v. LambertENR Cro. Jac. 394.

Vogel v. ThompsonENR 1 Exch. Rep. 60.

Rock v. Layton 1 Ld. Ray. 589.

Hannor v. MaseENR Hob. 283.

Gilburn v. RackENR 2 Sid. 12.

Keane v. Barry 8 Ir. Law Rep. 211.

CASES AT LAW. 61 RICHARDS, B. T. T. 1848. That was in order to raise a part and parcel question. Exch.of Pleas. BUCHANAN V. Duggan. LANDERS. That is the object for which the defendant in the present case seeks the order. PENNEFATHER, B. In that case the Court may give you a conditional order for that purpose. I do not think our doing so can injure the plaintiff. Ordered accordingly. RUSSELL, Executrix, v. MARTIN. M. T. 1848. Nov. 3. Tins was a motion that the original judgment of revivor of the year The plaintiff in a scsre 1841, obtained by the plaintiff as executrix of the conusee, be set facias, issued to revive a aside on the ground that, though it was obtained by her as executrix, judgment, des cribed herself in point of fact she had not obtained probate of the will. as executrix of the conusee of the judgment, W. F. Darley, in support of the motion. and made pro- fert of the pro- bate of oafndhis The old method of setting aside such judgments was by an audita querela, but the modern is to apply by summary motion : Lister V. mobetnatinupojnudge- Mundell (a); Slingsby v. Lambert (b); Bacon's Abr. tit. Audita tSforllegfChiCillaSiact Querela. If the executrix obtained probate at the trial even, it Eraotbabteeenhad would relate back, and would be sufficient to entitle her to a judg- granted to her. The Court, ment of revivor upon a scire facias issued before the obtainment of notwithstand ing, refused to probate. In England an affidavit of probate having been obtained is set aside the judgmentbunpton necessary, though there judgments are revived on nits : Vogel v. ,mot that made proceed- noeredde. order Thompson (c). In all the proceedings the plaintiff has stated that she ings thereon be stayed on terms of the defendants bringing the money into Court-within ten days, the defendants undertaking to satisfy the judgments. (a) 1 Bos. & Pull. 427. (6) Cro. Jac. 394. (c) 1 Exch. Rep, 60, 62 CASES AT LAW. M. T. 1848. has obtained probate.-[Francis Fitzgerald. It is not stated in any Bibekof of the affidavits].-The affidavit of Mrs. Charlotte Russell, upon RUSSELL which the application for a wire facias is grounded, describes her as v. MARTIN...