Ryan v Cambie

• Jurisdiction: Ireland
• Judgment Date: 28 November 1845
• Date: 28 November 1845
• Court: Equity Exchequer (Ireland)

Equity Exch.

RYAN

and

CAMBIE.

Cockburne v. WrightUNK 6 Ir. Eq. Rep. 1.

White v. White 3 Ir. Law Rep. 118, in notis.

Dillon v. CruiseUNK 3 Ir. Eq. Rep. 70.

Cockburse v. Wright Ubi supra.

Stewart v. CottinghamUNK 6 Ir. Eq. Rep. 248.

Garnet v. ArmstrongUNK 5 Ir. Eq. Rep. 533.

Knox v. KellyUNK 6 Ir. Eq. Rep. 279.

Clarke v. Bodkin Not yet reported.

Lord St. John v. BoughtonENR 9 Sim. 219.

Phillipo v. Munnings 2 M. & Cr. 309.

Neate v. The Duke of Marlborough 3 M. & Cr. 407.

Brown v. CavendishUNK 7 Ir. Eq. Rep. 369; et vide Sugden Vend. & Pur., 11 ed. 662.

Thompson v. Harrison 1 Cox, C. C. 344.

Sterling v. ForresterENR 3 Bligh, 575.

Capel v. Butler 2 S. & St. 457.

Ryan v. CambieUNK 2 Ir. Eq. Rep. 338.

378 CASES IN EQUITY. 1845. RYAN v. CAMBIE. (Equity Exchequer.) Nov.26,27,28. A having ob- TEE bill in this cause was filed on the 4th August 1838, and sub- tained a j1 789 in 1789 sequently amended, by the plaintiff, as the surviving executor of against B, who George Ryan deceased ; it stated amongst other matters was then sei sed of several That Solomon Cambie and his eldest son David Cambie, on the estates ; B, in 21st of February 1789, executed their joint and several bond, with 1792, died, and by his will de- warrant of attorney for confessing judgment thereon, to the said vised one deno- mination to c George Ryan, father of the plaintiff, in the penal sum of 1027. 2s., and another to conditioned for the payment of the sum of 513. 11 5., and that the D: C, in 1796, married, and said George Ryan caused two separate judgments to be entered on thereupon set- said bond, at his suit, against the said Solomon Cambie and David tied the estate devised to him. Cambie, in the Court of Common Pleas, in or as of Hilary Term The executors 1789. of A, in 1828, revived the That the said Solomon Cambie, being so indebted to the said judgment of 1789 against George Ryan, died in the month of July, in the year 1792, having C,the heir,and duly made his last will and testament, bearing date the 8th day of certain terre tenants, and June 1792, and thereof appointed his eldest son the said David thereupon is- Cambie, his second son Edward Cambie, and his (the testator's) sued an elegit and obtained a wife Elizabeth Cambie (since deceased), his executors, and soon finding there- under prior to afterwards died ; and that probate of his will was duly obtained from the passing of the Court of Prerogative in Ireland by his eldest son, the said David the 9 G. 4, c. 35, but were Cambie, who became the acting executor. prevented from That the said George Ryan departed this life on or about the getting into possession by 23rd day of April 1805, having previously made his last will and tee the proceed- ings of a prior tament, bearing date the 12th day of March in said year, and thereof creditor. The appointed his three sons, William Ryan, since deceased, the plaintiff; judgment was an revived or and George Ry , also since deceased, executors ; and that plaintiff, redocketed on the 16th day of February 1816, duly proved said will in the within five years from the passing of that Act, according to the provisions of the 3rd section. On a bill filed within twenty years from the revival of 1828 against E, claiming under the settlement of 1796, and D and other parties; Held, that notwithstanding the revival of 1828, elegit and other proceedings thereunder, no possession having been obtained, the plaintiff was barred as against E by the 3rd section of the 9 G. 4, c. 35. Held also, that the judgment creditor (having a legal right and proceeding against the legal estate of his debtor) by his omission to redocket-thereby exonerating one denomiÂÂnation of land originally liable, and casting the entire debt upon the other, without affording a right of contribution to that other-did not thereby lose his right to go against that other for the whole amount, and that no equity ested to restrain such creditor to the amount to which that denomination was originally liable. Held also, that a judgment creditor filing a bill in a Court of Equity for a sale of his deceased debtor's freehold estate, need not aver on the face of his bill that be had sued out an elegit on his judgment. CASES IN EQUITY. 379 Court of Prerogative in Ireland, and has since been, and still is, the 1845. acting executor of the said testator George Ryan. EluitY Exch. That the said judgment, which was entered against the said RYAN Solomon Cambie in or as of Hilary Term 1789, was duly revived v. by scire facias at the suit of the executors of the said George Ryan CAMBIE. deceased, in Hilary Term 1808, against the said David Cambie, heir Statement. of said Solomon, the conusor of said judgment, and certain terreÂÂtenants of the freehold lands of which the said Solomon had died seised. 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, on 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 thereÂÂunder possessed himself of all the personal property of the said David Cambie; and also, as his heir-at-law, entered into and became seised and possessed of the freehold properties thereinafter mentioned, of which the said David had been before seised 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 facial 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 Silgarvin, 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 teste the 23rd 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 inquisiÂÂtion 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 seised, and long afterwards continued seised, 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 shilÂÂlings above reprisals; and that the said Sheriff, on the day of taking 380 CASES IN EQUITY. 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 Cambie, 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 favour of said lessors of the plaintiff. That on said trial the said Charles, the defendant in said ejectÂÂment 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 seised, at the time of the rendition of said judgment, of the town and lands of Castletown, Brookfield, Rilgarvin, Clonmackilliduff, 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 execuÂÂtion against the said Charles Cambie, and were paid by him. CASES IN EQUITY. 381 The bill further charged, that Alexander Disney accordingly 1845. entered into possession of the rents of Brookfield, and...