William Farran, in Error v John Beresford and Catherine Ottiwell, Executor and Executrix of Henry Ottiwell, Deceased

JurisdictionIreland
CourtQueen's Bench Division (Ireland)
Judgment Date11 June 1844
Date11 June 1844

Queen's Bench.

WILLIAM FARRAN, in Error
and

JOHN BERESFORD and CATHERINE OTTIWELL, Executor and Executrix of HENRY OTTIWELL, deceased.

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

Glover v. Nagle 3 Ir. Law Rep. 21.

Wilkinson v. Edwards 1 Scott, 174.

Ld. Raym. 10.

54 CASES AT LAW. case of a mutual release, made to determine the relation of landlord and tenant; the landlord says, I will release the rent, and the tenant says, I will give up the land and the stock as a consideration for the release of the rent. Now, the instrument it is agreed had a sufficient stamp for the purposes of the surrender, and a surrender requires a higher stamp than a release ; and feeling a difficulty about that doctrine in the case from 4 Per. 4. Day., I would rather rest my opinion on the peculiarity of the present transaction, as not amounting to a sale under the Stamp Act, but as a releasing of the rights of landlord and tenant. PERRIN, J. That is my view of the matter. This is not the case of a sale where you are to measure it by the stamp duties. Allow cause shown with costs. WILLIAM FARRAN, in Error, v. JOHN BERESFORD and CATHERINE OTTIWELL, Executor and Executrix of HENRY OTTIWELL, deceased. MR. RICHARD ARMSTRONG moved to have judgment obtained in this case by the plaintiff in error entered up against the defendant in error, with costs. The action had been originally commenced in this Court by the defendants in error, as executors of Henry Ottiwell, against the plaintiff in error on a scire facias, and judgment had been obtained thereon against the plaintiff in error, from which judgment a writ of error had been brought into the Exchequer Chamber, and that Court affirmed the judgment of the Court of Queen's Bench ; and on this judgment a writ of error was brought to the House of Lords, when the judgment of the Court of Exchequer Chamber was reversed (a). The plaintiff in error is therefore now entitled to have judgment entered in his favour in this Court, but the officer has refused to enter the judgÂment with costs. The question raised here is, can executors plaintiffs in scire facias be made liable for costs ? The first statute that gave executors costs (a) Farran T. Ottiteett, 5 Ir. Law Rep. 487. CASES AT LAW. • 55 is the 6 Edw. I, but that statute only applied where damages were T. T. 1844. given, and in the action of scire facias no damages aro given. Then • Queen'sBench. came the Act 9 W. 3, c. 10, s. 3.- [CRAMPTON, J. Was the ease FARRAN of...

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