William Farran v John C. Beresford and Catherine Ottiwell, Executors of Henry Ottiwell, Deceased

JurisdictionIreland
CourtHouse of Lords (Ireland)
Judgment Date01 Jul 1842

House of Lords.

WILLIAM FARRAN
and
JOHN C. BERESFORD AND CATHERINE OTTIWELL, Executors of HENRY OTTIWELL, deceased.

Maddox V. Bond Ir. T. R. 332.

CASES AT LAW. 487 1842. House of Lords. Sin the Vouoe of itothi. IN ERROR FROM THE COURT OF EXCHEQUER CHAMBER IN IRELAND. WILLIAM FARRAN v. JOHN C. BERESFORD AND CATHERINE OTTIWELL, Executors of HENRY OTTIWELL, deceased.* June 30. July 1. ON the 31st of January 1837, a scire facias was issued, at the instance A scire facias of the defendants in error, as the executors of Henry , Ottiwell deceased issued by the out of the Court of King's Bench in Ireland, reciting a judgment executors of a conusee of a recovered by the testator in Hilary Term 1810, for 200 debt, and judgment, re- d 2. 9s. 6d. costs, against John Dunbar, since deceased, and directing the cited, and prayed execu- Sheriffs of the city of Dublin to make known to the heir and to the tion of the judgment, tenants of the lands, &c., of the said John Dunbar, in the usual form. which was re covered up The plaintiff in error having been served as one of the tertenants, wards of twen- pleaded to the scire facias two pleas, viz.: first, that no part of the prin- ty years be- fore the issuing cipal money secured by the judgment in the scire facias mentioned, nor of the writ and to the de any interest thereon was paid, nor was there any acknowledgment of the Pendant's plea right thereto given in writing, signed by the said John Dunbar, or by his of the 40th section of the agent, or by any other person or persons by whom the said judgment was 3 & 4 W. 4, c. 27, the plain payable, or by the agent of any such person, to the said Henry Ottiwell, tiffs replied a or to any other person entitled thereto, within twenty years next before judgment of revivor re the time of the suing out of the writ of scire facias : and secondly, that covered by themselves a present right to receive the said debt and damages accrued to a person within twenty capable of giving a discharge for, and a release for the same, more than years. Held, by the House twenty years before the suing forth of the said writ of scire facias, and of Lords (over- that no part of the principal money of the said debt and damages, nor any ruling the judgment of the Court of Exchequer Chamber in Ireland), that the plea was a sufficient answer to the claim, as stated in the declaration, and that the replication was bad on general demurrer, as being a departure from the declaration. A new right accrued to the said executors by the said judgment of revivor. Semble-The time of limitation prescribed by the 3 & 4 W. 4, c. 27, s. 40, begins to run from the entry of the original judgment, and not from the date of a judgment of revivor- except that where a new right was conferred by the judgment of revivor (as where the judgment was revived at the suit of the executors of the conusee), the money sought to be recovered may he considered to have been secured to them by that judgment within the true meaning of the 40th section of the 3 & 4 W. 4, c. 27; and the time, therefore, begins to run from the date of such a judgment in wire facias. Semble-The 8 G. 1, c. 4, s. 2, is repealed, as far as judgments are concerned, by the 3 & 4 W. 4, c. 27, s. 40. Vile 6 Law Rec. N. S. 10, and 2 Ir. Law Rep. 110. 488 CASES AT LAW. interest thereon, was paid, nor any acknowledgment of the right thereto given in writing, signed by the_said John Dunbar, or by his agent, or by any other person or persons by whom the said debt and damages were payable, or by the agent of any such person or persons, to the said Henry Ottiwell, or to the executors, or to any or either of them, or to their agent, or to the agent of any or either of them, or to any other person entitled thereto, or to the agent of any such person, within twenty years next before the time of the issuing of the scire facias. To these pleas, the defendants in error replied a former scire facias, issued at their instance (viz., as executors of the said John Dunbar), in Michaelmas Term 1817, upon the same judgment ; and that such proÂÂceedings were had thereon, that it was afterwards considered by the Court...

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6 cases
  • Stewart v Cottingham and Others
    • Ireland
    • Rolls Court (Ireland)
    • 2 May 1844
    ...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......
  • George Stephenson v Henry Theophilus Higginson
    • Ireland
    • Court of Exchequer Chamber (Ireland)
    • 20 January 1847
    ...Inhabitants of RamsgateENR 6 B. & C. 712. Sussex Peerage case 11 Cl. & F. 143. Fraran v. Beresford 10 Cl. & F. 335 ; S. C. 5 Ir. Law Rep. 487. Lumby v. Allday I C. & J. 306. The King v. HoggI T. R. 721. Dock Company of Kingston-upon-Hull v. BrowneENR 2 B. & Al. %9. The K......
  • William Farran, in Error v John Beresford and Catherine Ottiwell, Executor and Executrix of Henry Ottiwell, Deceased
    • Ireland
    • Queen's Bench Division (Ireland)
    • 11 June 1844
    ...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 dete......
  • JOHN CONLAN, Assignee of the Assignees of JAMES BAKER v The Heir and Tertenants of THOMAS BODKIN
    • Ireland
    • Court of Common Pleas (Ireland)
    • 6 June 1845
    ...Pleas. JOHN CONLAN, Assignee of the Assignees of JAMES BAKER and The Heir and Tertenants of THOMAS BODKIN. Farran v. Ottiwell 5 Ir. Law Rep. 487. Farrell v. Gleeson Vide post, p. 477. Philips v. ManglesENR 11 East, 516. Executors of Wright v. NuttENR 1 T. R. 388. Stewart v. CottinghamUNK 6 ......
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