Stewart v Cottingham and Others

JurisdictionIreland
CourtRolls Court (Ireland)
Judgment Date02 May 1844
Date02 May 1844

Rolls.

STEWART
and

COTTINGHAM and others.

Ottiwell v. Farran 2 Ir. Law Rep. 121.

O'Brian v. RamENRENRENR 3 Mod. 186; S. C. Comb. 103; Carth. 30.

Farran v. Ottiwell 5 Ir. Law Rep. 487.

Trevivan v. LawrenceENR 2 Ld. Raym. 1048.

Hardisty v. BarryENR 2 Salk. 499; Tidd's Pr. 1034.

Master Henn 1 Dr. & Walsh, 564.

Ottiwell v. Farran, per Pennefather, B. 2 Ir. Law Rep. 144.

Dom. Proc. 5 Ir. Law Rep. 487.

Knox v. KellyUNK 1 Dr. & Wal. 554.

248 CASES IN EQUITY. 1844. STEWART v. COTTINGHAM and others. April 29. (In the Rolls.) May 2. CASES IN EQUITY. 249 Mr. Ross S. Moore, and Mr. Wm. Brooke, Q. C., for the plaintiff.- The question in this case turns on the construction of the first three sections of the 9 G. 4, c. 35.* The first section relates to judgments " entered or recovered " after the passing of that Act (27th June 1828); the second, to judgments "entered or recovered" within twenty years ; and the third, to judgments " entered or recovered " twenty years or • The following are the preamble and first three sections of 9 G. 4, c. 35 :- " Whereas great difficulties are frequently found to arise in making out title to freeÂ" hold property in Ireland, by reason not only of the number of old outstandingjudgments "in the respective Courts of King's Bench, Common Pleas, and Exchequer, in that "part of the United Kingdom, appearing unsatisfied on record, though considerable "numbers of the same have been actually paid off and discharged, but also by reason "that in many cases the defendants in judgments entered in the said Courts are not "sufficiently described, so as to identify the persons against whom such judgments have "been actually recovered, to the great impediment of the due transfer of such freehold "property, and to the great disquiet of purchasers for valuable considerations ; and it "is expedient that a remedy be provided for the same." Be it therefore enacted, that all judgments which shall, after the passing of this Act, be entered or recovered in his Majesty's Courts of King's Bench, Common Pleas, or Exchequer, in Ireland, shall, after the expiration of twenty years from the date of the entry or recovery thereof, be null and void as against purchasers for valuable consideration, of any lands, tenements or hereditaments in Ireland, unless the same shall be duly revived, according to the course and practice of the said respective Courts, or re-docketted in manner hereinafter directed, and the revival or re-docketting thereof entered in the manner hereinafter proÂvided, within twenty years next before the execution of the conveyance, settlement, mortgage, lease, or other deed or instrument, vesting or transferring the legal or equitable right, title, estate, or interest in or to such purchaser for valuable consideÂration. II. And he it further enacted, that all judgments which shall have been entered or recovered in his Majesty's Courts of King's Bench, Common Pleas, or Exchequer, in Ireland, within twenty years next before the passing of this Act, shall, after the expiration of twenty years from the entry or recovery thereof, be null and void, as against purchasers for valuable consideration, of any lands, tenements, or hereditaments in Ireland, unless the same be duly revived according to the course and practice of the said respective Courts, or re-docketted in manner hereinafter directed, and the revival or re-docketting thereof be entered in the manner hereinafter mentioned, within twenty years next before the execution of the conveyance, settlement, mortgage, lease, or other deed or instrument vesting or transferring the legal or equitable right, title, estate, or interest, in or to such purchaser for valuable consideration, or within five years from the passing of this Act. III. And be it further enacted, that all judgments which shall have been entered or recovered in his Majesty's Courts of King's Bench, Common Pleas, or Exchequer, in Ireland, twenty years or upwards next before the passing of this Act, shall be null and void, as against all purchasers for valuable consideration, of any lands, tenements, or hereditaments in Ireland, whether their purchases shall have been made before or after the passing of this Act, unless the same shall be duly revived, according to the course and practice of the said respective Courts, or re-docketted in manner hereinafter directed, and the revival or re-docketting thereof be entered in the manner hereinafter mentioned, within five years from the passing of this Act. 250 CASES IN EQUITY. upwards next before that date. We contend that the judgment in question having been entered and recovered in the year 1796, is within the third section ; and therefore null and void as against our mortgage, inasmuch as it was not revived or re-docketted pursuant to the provisions of the Act within five years next after 27th of June 1828. This must be admitted, unless either the judgment of revivor in 1838, or that in 1823, is to be considered as a judgment "entered or recovered" within the meaning of the first or second section. Throughout the Act, a judgment "entered or recovered" is distinÂguished from a judgment of revivor, which is therein called "a revival:' This was particularly noticed by Perrin, J., in his judgment in Ottiwell v. Farran (a) : and whether we consider the language of the Act, or the nature of the grievance which it was intended to redress, it seems to us impossible to avoid the conclusion that a judgment of revivor is not a judgment "entered or recovered" within the meaning of this Act of Parliament ; and that the judgment thereby intended is an original judgÂment and none other. By. the first section it is enacted, that " All "judgments which shall, after the passing of this Act, be entered or "recovered * * * ° shall, after the expiration of twenty years " from the date of the .entry or recovery thereof, be null and void as " against purchasers for valuable consideration, unless the same shall be "duly revived or re-docketted in the manner...

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9 cases
  • Carroll v Darcy
    • Ireland
    • Court of Chancery (Ireland)
    • 29 April 1847
    ...Geraghty v. Abbott 8 Ir. Law. Rep. 60. Blake v. DarcyENR San. & Sc. 493. Knox v. KellyUNK 1 Dru. & Wal. 542. Stewart v. CottinghamUNK 6 Ir. Eq. Rep. 248. Collyer v. Graves Not reported. Davis v. Strathmore 16 Ves. 419. Le Neve v. Le NeveENR 3 Atk. 646. Forshall v. Coles App. 53. Garnett v. ......
  • Hone v O'Flahertie
    • Ireland
    • High Court of Chancery (Ireland)
    • 17 January 1859
    ...1 Ves. jun. 50. Ware v. Horwood 14 Ves. 28. St. John v. St. John 11 Ves. 535. Jackman v. Mitchell 13 Ves. 581. Stuart v. CottinghamUNK 6 Ir. Eq. Rep. 248. Harris v. Royal British Bank 2 H. & Nor. 535 Underhill v. DevereuxENR 2 Saund. 72t, and p. 6. Stewart v. GravesENR 10 M. & W. 711. Barke......
  • Beere v Head and Others
    • Ireland
    • Court of Chancery (Ireland)
    • 13 February 1846
    ...BEERE and HEAD and others. Davis v. Lod Strathmore 16 Ves. 428. Wyatt v. Barwell 19 Ves. 438. Stewart v. CottinghamUNK 6 Ir. Eq. Rep. 248. Jolland v. Stainbridge 3 Ves. 478. Thomas v. PledwellUNK 7 Vin. Abr. 53. Davis v. Stratmore 16 Ves. 419. Willis v. BrownsENR 10 Sim. 148. Le Neve v. Le ......
  • Peter Geraghty v George Abbott
    • Ireland
    • Exchequer of Pleas (Ireland)
    • 3 December 1844
    ...542. Knox v. Kelly 1 Dru. & Walsh, 542. Blake v. DarcyENR Sau. & Sc. 499. Hickson v. Collis 1 Jones & L. 120. Stewart v. CottinghamUNK 6 Ir. Eq. rep. 248. Warrens v. O'Shee 5 Law Rec. N. S. 77. ENR UNK Blake v. Darcy, Sau. & Sc. 423; S. C. 1 Dru. & Wal. 559. UNK Know v. Kelly, 1 Dru. & Wal.......
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