Ryan v Cambie

• Jurisdiction: Ireland
• Judgment Date: 25 January 1840
• Date: 25 January 1840
• Court: Equity Exchequer (Ireland)

Ryan

and

Cambie.

CASES

IN THE

COURTS OF CHANCERY, ROLLS, AND

EQUITY EXCHEQUER.

CHANCERY.

JUDGMENT — SCIRE FACIAS — REVIVOR — STATUT OF LIMITATIONS, 3 & 4 W. 4, c. 27 — ELEGIT — PLEADING — PARTIES — BILL — DEMURRER.

The bill in this cause, which was filed on the 4th August 1833, by the plaintiff as the surviving executor of George Ryan, deceased, stated, amongst other matters—

That Solomon Cambie and his eldest son David Cambie, on the 21st of February 1789, executed their joint and several bond, with warrant of attorney for confessing judgment thereon, to the said George Ryan, father of the plaintiff, in the penal sum of £1027. 2s., conditioned for the payment of the sum of £513. 11s., and that the said George Ryan caused two separate judgments to be entered on said bond, at his suit, against the said Solomon Cambie and David Cambie, in the Court of Common Pleas, in or as of Hilary Term 1789.

That the said Solomon Cambie being so indebted to the said George Ryan, died in the month of July, in the year 1792, having duly made his last will and testament, bearing date the 8th day of June 1792, and thereof appointed his eldest son, the said David Cambie, his second son, Edward Cambie, and his (the testator's) wife, Elizabeth Cambie (since deceased), his executors, and soon afterwards died; and that probate of his will was duly obtained from the Court of Prerogative in Ireland by, his eldest son, the said David Cambie, who became the acting executor.

That the said George Ryan departed this life on or about the 23d day of April 1805, having previously made his last will and testament, bearing date the 12th day of March, in said year, and thereof appointed his three sons, William Ryan, since deceased, the plaintiff, and George Ryan, also since deceased, executors; and that plaintiff, on the 16th day of February 1816, duly proved said will in the Court of Prerogative in Ireland, and has since been, and still is, the acting executor of the said testator George Ryan.

That the said judgment, which was entered against the said Solomon Cambie, in or as of Hilary Term 1789, was duly revived by scire facias at the suit of the executors of the said George Ryan, deceased, in Hilary Term 1808, against the said David Cambie, heir of said Solomon, the conusor of said judgment, and certain terretenants of the freehold lands of which the said Solomon had died seized.

That the said David Cambie died in the year 1813, intestate; and that after the death of the said David Cambie, his son Charles Cambie, oh his attaining the age of twenty-one years, obtained letters of administration of his goods and chattels from the Court of Prerogative in Ireland, on the 21st of November 1821, and thereunder possessed himself of all the personal property of the said David Cambie; and also, as his heir-at-law, entered into and became seized and possessed of the freehold properties thereinafter mentioned, of which the said David had been before seized and possessed as heir-at-law of his father, the said Solomon Cambie.

That afterwards, in Trinity Term 1827, the executors of the said George Ryan issued another writ of scire facias against the heir and terretenants of said Solomon Cambie, to revive the judgment of Hilary Term 1789; and afterwards, in Easter Term 1828, said judgment was duly revived against said Charles Cambie, as heir of said Solomon, and as tenant to the lands of Brookfield, in the county of Tipperary; and also against Edward Cambie, tenant to the lands of Kilgarvin, in said county, and against two other persons, tenants to the lands of Ballyscanlan, in the said county; and that thereupon said executors issued a writ of elegit to the sheriff of the said county, bearing test the 23d day of April 1828, returnable on the morrow of the Holy Trinity next following, and marked for the sum of £950. 3s. 10d., the sum then due on foot of the judgment so obtained as aforesaid against the said Solomon Cambie in Hilary Term 1789; and in pursuance of said writ, the said sheriff returned an inquisition taken by him on the 19th day of May 1828, whereby the jury therein named found that said Solomon Cambie, at the time of the rendition of said judgment, was seized, and long afterwards continued seized, as of fee or of a descendible freehold, of and in the said town and lands of Brookfield, Kilgarvin, and Ballyscanlan, situate, lying, and being in the county of Tipperary aforesaid; and also that the said towns and lands of Brookfield were one moiety or one equal half of the entire of said lands, and of the yearly value of five shillings, above reprisals; and that the said sheriff, on the day of taking said inquisition, caused same to be delivered to the said executors in said will named, at the extent aforesaid, to be held by them as their freehold, until the debt and damages in said writ mentioned should be fully levied.

That afterwards, as of Easter Term 1828, the said executors brought an ejectment on the title in the Court of Exchequer against the said Charles Carabie, founded on the said elegit and return, to recover the possession of said lands of Brookfield as a moiety of the aforesaid three denominations of land; to which ejectment the said Charles Cambie took defence, and same was tried at Clonmel, at the Summer Assizes of 1828, when a verdict was had for said executors (the lessors of the plaintiff in the ejectment), subject to a bill of exceptions taken on the part of said defendant; and upon which bill of exceptions judgment was afterwards given by the said Court in favor of said lessors of the plaintiff.

That on said trial the said Charles, the defendant, in said ejectment cause, relied on a prior judgment obtained in the Court of Exchequer by one Anne Carroll against his grandfather, the said Solomon Cambie, in Hilary Term 1785, for the sum of £630, and which had then become vested in Alexander Disney, who had recently revived the same and issued an elegit thereon, and obtained a finding that said Solomon was seized, at the time of the rendition of said judgment, of the town and lands of Castletown, Brookfield, Kilgarvin, Clonmackilliduffe, Coobawn, and Ballyscanlan, in the county of Tipperary, and that said lands of Brookfield, Kilgarvin, and Ballyscanlan were a true and equal moiety of all the said lands and tenements.

That said judgment in ejectment, so obtained by said executors, was afterwards duly enrolled in Hilary Term 1829, in the Court of Exchequer; and that the said Alexander Disney about the same time brought an ejectment, founded on said elegit and return so obtained by him, to recover possession of said denominations of land, and caused same to be served on plaintiff as one of the said executors, whereupon plaintiff was advised, that by reason of said proceedings of the said A. Disney, and the priority of the said judgment of Hilary Term 1785, the executors of the said George Ryan, deceased, could not legally enforce payment of the rents of Brookfield from the tenants thereof, inasmuch as said rents were applicable to the payment of said prior demand, and therefore no habere was issued at the suit of said executors on the judgment so obtained by them in the said ejectment cause.

That soon after the enrolment of said judgment by said executors, the costs of the ejectment so brought by them were levied by execution against the said Charles Cambie, and were paid by him.

The bill further charged that Alexander Disney accordingly entered into possession of the rents of Brookfield, and also of the lands of Kilgarvin and Ballyscanlan, and took and received the rents and profits thereof for several years in payment of his said demand, whereby he had been or might, without wilful neglect and default, have been fully paid and satisfied the entire sums due to him for principal, interest, and costs; but that he alleged he was entitled to continue in receipt of the rents of said lands for payment of some other demand.

That plaintiff was then the only surviving executor of the said George Ryan, deceased, and that as such surviving executor and sole personal representative of the said George Ryan, deceased, he was entitled to the amount of the principal, interest, and costs then due, under and by virtue of the elegit which was issued on the judgment for £1027. 2s., obtained by the said George Ryan against the said Solomon Cambie in Hilary Term 1789, and that the amount so due to plaintiff on foot of said judgment, and the said elegit issued thereon, exceeded the said sum of £1027. 2s., being the penalty in the bond on which said judgment was obtained.

That the said Solomon Cambie, the conusor of said judgment, was, at the time of the rendition thereof, and at the time of his death, seized of certain denominations of land, viz., Kilgarvin, Castletown, Brookfield, and Ballyscanlan. That at the time of his decease he was also seized and possessed of several other freehold and leasehold lands, and of considerable personal estate; and that by his will, bearing date as therein before mentioned, &c.—[By his will, his debts were to be paid out of his personal estate; Brookfield and other lands were devised to David Cambie, his eldest son; the lands of Ballyscanlan and Kilgarvin he devised to his...