The Earl of Westmeath v John Coyne, Executor De Son Tort or Otherwise of Patrick Coyne

• Jurisdiction: Ireland
• Judgment Date: 20 April 1896
• Date: 20 April 1896
• Court: Queen's Bench Division (Ireland)

The Earl of Westmeath

and

John Coyne, Executor de son tort or otherwise of Patrick Coyne (1).

Q.B. Div.

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1896.

Civil-bill decree renewal — Executor de son tort of deceased defendant — “Personal representative” — 14 & 15 Vict. c. 57, ss. 9, 142 — Certiorari — Discretion — 27 & 28 Vict. c. 99, s. 9.

In section 142 of 14 & 15 Vict. c. 57, the words “personal representatives” (of a deceased party to civil bill proceedings) do not include any but a rightful executor or administrator; and therefore there is no jurisdiction in a Civil Bill Court to renew against an executor de son tort a decree obtained against the person with whose assets he has intermeddled.

Where a plaintiff in a Civil Bill Court obtained a renewal against an executor de son tort of a decree for more than £20, made against the deceased defendant, the Court, in the exercise of the discretion given by 27 & 28 Vict. c. 99, s. 9, refused to order a writ of certiorari to issue under that section to remove such renewal decree, so as to give it the effect of a judgment of the High Court.

Motion, ex parte, on behalf of the plaintiff, for a writ of certiorari, under 27 & 28 Vict. c. 99, sect. 9, to remove into the

Queen's Bench Division a renewal of a civil bill decree obtained against John Coyne, as executor de son tort of Patrick Coyne, the defendant in the original civil bill decree. In January, 1894, the plaintiff had obtained a civil bill decree against Patrick Coyne, for £64 15s. rent and costs. The decree was lodged with the sheriff for execution, who returned nulla bona. In June, 1895, the plaintiff got a renewal of this decree in the County Court, and the sheriff, to whom it was delivered for execution, again made a return of nulla bona. In October, 1895 (the defendant Patrick Coyne, having meanwhile died), the plaintiff obtained a further renewal, on notice, “against John Coyne, as executor de son tort or otherwise of Patrick Coyne.” This was likewise lodged with the sheriff who made the same return as in the former cases. It was stated in the affidavits, filed on the plaintiff's behalf in support of the present application, that on Patrick Coyne's death, John Coyne, his son, had entered upon and had continued in possession of his father's farm (for the rent of which the original civil bill had been brought), and was still in possession thereof as executor de son tort or otherwise of his father Patrick Coyne; and that the said John Coyne had no goods or chattels, which could conveniently or at all be taken in execution under the renewal decree so obtained (1).

C. F. Doyle, for the plaintiff, referred to section 57 of 14 & 15 Vict. c. 57 (by which “any person rendering himself an executor de son tort shall be liable to be sued by civil bill, as if he were a rightful executor, in the manner and to the extent herein mentioned respecting rightful executors, provided that such executor de son tort shall not be liable beyond the amount of the assets actually received by him”); and to section 142 of the same Act (which provides that any decree or dismiss may be renewed “against any defendant or plaintiff or surviving defendant or plaintiff, or the personal representatives of such parties respectively”); and relied on Hughes...