Wall v Walsh

JurisdictionIreland
Judgment Date05 July 1869
Date05 July 1869
CourtQueen's Bench Division (Ireland)

Q. Bench.

Before O'BRIEN, FITZGERALD, and GEORGE, JJ.

WALL
and

WALSH

Atkins v. Tredgold 2 B. & Cr. 23.

Slater v. LawsonENR 1 B. & Ad. 396.

Johnson v. BellUNK 6 Ir. C. L. R. 526.

Warrens v. O'Shea 5 Law Rec. N. S. 77; 1 Jebb & Symes, 504.

Kelly v. Kelly 6 Law Rec. N. S. 222.

Clarke v. Bodkin 13 Ir. Eq. R. 492.

Martin v. M;CauslandUNK 3 Ir. L. R. 113.

Goddard v. Ingram 3 Q. B. 839.

Homan v. Andrews 1 Ir. Ch. R. 106.

O'Hara v. CreaghECAS L. & T. 65; 3 Ir. Eq. R. 179.

Sheppard v. DukeENR 9 Sim. 567.

Watson v. BirchENR 15 Sim. 523.

Fortescue v. M'Kone 1 Jebb & Symes, 341.

Maloney v, O'BrienUNK 5 Ir. L. R. 577.

Jackson v. WoolleyENR 8 E. & B. 784.

Archer v. Leoard 15 Ir. Ch. R. 267.

Ruckley v. KiernanUNK 7 Ir. C. L. R. 75.

Woodyear v. GreshemENR Skin. 682.

Fenner v. EvansENR 1 T. R. 267.

Winter v. KretchmanENR 2 T. R. 45.

Fortescue v. M'Kone 1 Jebb & S. 350.

Molony v. O'BrienUNK 5 Ir. L. R. 579.

Revivor — Limitation — Statute of Limitations — 3 & 4 Wm. 4, c. 27, s. 40 ——

Vol,. IV.] COMMON LAW SERIES. 103 _Buckley v. Kiernan (1), on the form of pleadings under the Common Q. Bench. Law Procedure Act, to the effect that every intendment is to be 1869. made in support of the pleading. That must mean when the sub- MooiNs stance of the complaint or of the defence sufficiently:appears on the O'DONNELL. pleading. There is no substance in the Plaintiff's case here ; and, therefore, no intendment can be made in his favor. O'BRIEN, FITZGERALD, and GEORGE, JJ., concurred. Judgment for Defendant. Attorney for the Plaintiff : Alfred B. Kelly. Attorney for the Defendant : Miles Jordan. WALL v. WALSH (2). Q. Bench. 1869. Revivor-Limitation-Statute of Limitations-3 car 4 Wm. 4, e. 27, 8. 40- Common Law Procedure Act, 1853, s. 20-Mercantile Law Amendment Rib' 2, Act-19 4. 20 Vict. c. 97, s. 14. Writ of revivor against the executor of W. Defence that the alleged causes of action did not accrue within twenty years before this suit. Replications-1st, stating in substance that the, judgment against W. was recovered on the joint and several bond, with warrant to confess judgment of W. and one K; that another judgment was entered on the same bond and warrant against K., and that within twenty years before suit part of the prinÂcipal moneys was paid by K. 2nd, like the 1st, but averring payment of interest within twenty years beÂfore the suit. Held (dissentience FITZGERALD, J.), that a writ of revivor is not an action upon a judgment within section 20 of the Common Law Procedure Act, 1853, 16 & 17 Vict. c. 113 ; that the period of limitation in such proceedings is still regulated by the 3 & 4 Wm. 4, c. 27, s. 40, and that the defence was bad, as it did not negative the exception in the 3 & 4 Wm. 4, e. 27, s. 40. Held, by FITZGERALD, J., that a writ of reviver is an action -upon a judgÂment within section 20 of the Common Law Procedure Act, 1853; and that the replications were bad, as not showing that the payments were made before the. (1) 7 Ir. C. L. R. 75. and GEORGE, N. - (2) Before O'BRIEN, FITZGERALD, passing of the Mercantile Law Amendment Act, which provides (section 14) that " no co-debtor shall lose the benefits of the Common Law Procedure Act, 1853, s. 20, by reason only of payment of any principal, interest, or other money by any other co-debtor." DEMURRER. Writ of revivor, by which Mathew John Mooney and Mary Walsh, the Defendants, who were executors of Peter Walsh, were summoned to appear and show cause wherefore Joseph Wall should not have execution against the said Mathew John Mooney and Mary Walsh, as such executors, of a judgment whereby the said Joseph Wall, on the 24th day of July, 1845, and in or as of Trinity Term in said year, in said Court of Queen's Bench, recovered against the said Peter Walsh, in his lifetime, the sum of £1600, besides £2 1 ls. lid. costs, and, of which sum, the said Joseph Wall alleged there remained clue and unsatisfied the sum of £216 16s. 8d. Defence. That the alleged causes of action did not accrue within twenty years before this suit. Replications :-First. That Peter Walsh, in the writ of revivor mentioned, and one Peter Keon, in the lifetime of the said Peter Walsh, by their bond, bearing date the 18th day of July, 1845 (which said bond is the writing obligatory mentioned in the record of the judgment in the said writ mentioned), became jointly and severally bound to the Plaintiff in the sum of £1600, in the said writ mentioned, to be paid to the Plaintiff, subject to a condition, that if the said Peter Walsh and Peter Keon, their heirs, executors, or administrators, should pay to the Plaintiff the sum of £800,with interest therefor, at the rate of £6 per cent. per annum, on the 18th day of January, 1846, the said bond should be void ; and the judgment in the said writ mentioned was entered on foot of the said bond by virtue of a warrant of attorney for confessing judgÂment thereon thereunto annexed, and executed by the said Peter Walsh and Peter Keon respectively, to secure the said principal money of £800, with interest therefor, as aforesaid, whereby the said principal money of £800, with interest therefor as aforesaid, became and was, and the sum of £216 16s. 8d., parcel thereof in the said writ mentioned, hath been, and still is, secured by the said judgment ; and the Plaintiff, by a certain other judgment of the Court of Queen's Bench in Ireland, on the 24th day of July, VOL. IV.] COMMON LAW SERIES. 1845, and in or as of Trinity Term, in the said year, recovered against the said Peter Keon the said sum of £1600; which said last mentioned judgment was also entered on foot of the said bond, and by virtue of the said warrant of attorney ; to secure the said principal sum and interest therefor as aforesaid ; whereby the said principal sum of £800, with interest thereon as aforesaid, became and was, and the said sum of £216 16s. 8d., parcel thereof, hath been, and still is, secured by the said last mentioned judgment; and within twenty years next before this suit part of the principal money then secured by the said two judgments respectively, as aforesaid, was paid on account of the, said principal money, by the said Peter Keon, to the Plaintiff, then being the party entitled thereto. Second. That Peter Walsh, in the writ of revivor mentioned, and one Peter Keen, in the lifetime of the said Peter Walsh, by their bond, bearing date the 18th day of July, 1845, which said bond is the writing obligatory mentioned in the record of the judgment in the said writ mentioned, became jointly and severally bound to the Plaintiff in the sum of £1600, in the said writ menÂtioned, to be paid to the Plaintiff, subject to a condition that if the said Peter Walsh and Peter Keon, their heirs, executors, or adÂministrators, should pay to the Plaintiff the sum of £800, with interest thereon at the rate of £6 per cent. per annum, on the 18th day of January, 1846, the said bond should be void ; and the judgÂment in the said writ mentioned was entered on foot of the said bond, by virtue of a warrant of attorney for confessing judgment thereunto annexed, and executed by the...

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