The Estate of Anna Leonora Smith, Owner; Whitestone and Harrison, Petitioners

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 20 June 1905
• Court: Chancery Division (Ireland)
• Date: 20 June 1905

In The Matter of the Estate of Anna Leonora Smith

Owner

and

Whitestone and Harrison

Petitioners (NO. 2).

Ross, J.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1905.

Limitations, Statute of — Estate in Land Judge's Court — Date from which operation of statute is suspended.

The order for sale which prevents the operation of the Statute of Limitations in respect of an estate in the Land Judge's Court (within the rule laid down in Colclough's Estate, 8 Ir. Ch. R. 330) is the absolute order, and not the conditional order.

[The following cases were also cited:—In re Swantons Estate (8); In re Bateson's Estate (9).]

A Further question arose in this case, whether a judgment was barred under the Statute of Limitations.

In or as of Trinity Term, 1837, George Briscoe obtained a judgment against Richard Boyse Osborne, the predecessor in title of the owner herein, in the Court of Exchequer for the sum of £800, debt, besides costs, on foot of a bond to secure £400, with interest at the rate of £5 per cent. George Briscoe died in the year 1862, and letters of administration of his personal estate were subsequently granted to his widow, Henrietta Louisa Briscoe, who, on the 17th October, 1864, in consideration of £400, assigned the judgment to Isaac Thornton. This judgment was reregistered from time to time. An action was instituted in the Court of the Vice-Chancellor (Osborne v. Smith) to have an annuity (1) declared well charged on the lands for sale herein; and a receiver was appointed in June, 1892. This action terminated on the 20th June, 1904, and the receiver was discharged.

On the 29th January, 1894, Isaac Thornton applied, in the action of Osborne v. Smith, to have the receiver extended to the judgment: notice of this application was not served on the owner, who was resident in Corea. Mr. Justice Monroe made the order. Before Isaac Thornton had time to make any further application on foot of the order—which was not made up—he died on the 17th February, 1894. It was stated that no further proceedings were taken thereunder because Isaac Thornton's representatives considered that, owing to the large arrears due on foot of the annuity, there would be no money available to meet their claim. A bank-book of a former receiver in Osborne v. Smith was produced from which payment of interest on the 31st July, 1890, to Isaac Thornton on foot of this judgment was claimed to be proved; and this, coupled with a statement in the affidavit of Isaac Thornton, used on the application to extend the receiver on the 29th January, 1894, that interest on the judgment up to the 10th April, 1890, had been paid, was relied on as proof of such payment. Ross, J., held that the bank-book did not sufficiently or clearly show that the entry therein referred to a payment in respect of the judgment, and that as the affidavit of Isaac Thornton was not served on the owner, she would not be affected by its contents. However, he allowed the legal question to be argued on the assumption that such payment was proved. The conditional order for sale herein was made on the 27th January, 1902, and this order was made absolute on the 12th August, 1902. The net point, then, for...