William Farran, - Plaintiff in Error; John Claudius Beresford and Catherine Mary Ottiwell, - Defendants in Error
| Jurisdiction | England & Wales |
| Judgment Date | 18 August 1843 |
| Date | 18 August 1843 |
| Court | House of Lords |
English Reports Citation: 8 E.R. 764
House of Lords
Mews' Dig. xii. 650.
Judgment - Revivor - Stat. 3 and 4 W. 4, c. 27 - Pleading; Departure.
X CLARK & FINNELLY, 319 FARRAN V. BERESFORD [1842-43] [319] WILLIAM FARRAN,-Plaintiff m. Error; JOHN CLAUDIUS BERESFORD and CATHERINE MARY OTTIWELL,- Defendants in Error [June 30, July 1, 1842; March 6, August 18, 1843]. [Mews' Dig. xii. 650.] Judgment-Bevivor-Stat. 3 and 4 W. 4, c. 27-Pleading; Departure. To a writ of scire facias issued in 1837 by the executors of the conusee of a judgment recovered in 1810, against the heirs and terre-tenants of the conusor, one of the terre-tenants pleaded the 40th section of the statute 3 and 4 W. 4, c. 27 ; to which the executors replied a judgment of reviver, recovered by themselves within 20 years before the issuing of the scire facias.- Held by the Lords (agreeing with the unanimous opinion of the Judges of England, and reversing a judgment of the Court of Exchequer Chamber in Ireland) : 1st. That the plea was a sufficient answer to the claim stated in the writ. 2d. That the replication was a departure from the writ, and therefore bad on general demurrer. 3d. That a new right accrued to the executors by the judgment of revivor recovered by themselves. Semble, that if the executors had issued the scire facias on the judgment revived by them within the 20 years, the statute would not have barred the claim. Semble, that the Irish statute 8 G. 1, c. 4, s. 2, is repealed, so far as judgments are concerned, by the statute 3 and 4 W. 4, c. 27, s. 46. The questions raised on the record in this case will be better understood by premising a short statement of the facts:-On the 16th of March 1810, John Claudius Beresford, as assignee of Henry Ottiwell and John Cockburne, bankrupts, and the said Henry Ottiwell, demised to John Dunbar, in consideration of 500 as a fine, a dwelling-house and premises in the city of Dublin, for lives renewable for ever, at the yearly rent of 120 guineas. Dunbar paid 100 of the fine, and for the residue he passed four bonds, in the penalty of 200 each, on which Henry Ottiwell obtained judgments in the Court of King's Bench in Ireland, as [320] of Hilary term 1810; one of the bonds was paid, and the judgment thereon satisfied; the others remained unpaid. Henry Ottiwell died in 1813, having by his will appointed the said J. Claudius Beresford, and his wife Catherine Mary Ottiwell, his executors. In that year also Dunbar assigned his interest in the lease of 1810, to the Plaintiff in Error, for 341 5s., the premises being then subject to the three judgment debts, of which the Plaintiff in Error alleged that he was then wholly ignorant. These judgments were revived by scire facias against J. Dunbar, in Trinity term 1817, in the names of the Defendants in Error, as executor and executrix of H. Ottiwell. By the record it appeared, that on the 31st of January 1837, a writ of scire facias, tested as of that day, was issued, by the Defendants in Error as executors of Henry Ottiwell, out of the Court of King's Bench in Ireland, reciting a judgment recovered by the testator in Hilary term 1810, for 200 debt, and 2 9s. 6d. costs, against J. Dunbar, since deceased, and directing the sheriffs of the county of the city of Dublin to make known to the heir of Dunbar, and to the tenants of the lands, etc. of the said J. Dunbar, in 1810, to show cause why the plaintiffs should not have execution against them, etc. (in the usual form). The Plaintiff in Error having been served as one of the terre-tenants, pleaded to the sd. fa. two pleas; First, That no part of the principal money secured by the judgment in the sci. fa. mentioned, nor any interest thereon, was paid, nor was any acknowledgment of the right thereto given in writing, signed by J. Dunbar or by his agent, or by any other person or persons by whom, the said judgment was payable, or by the agent of any such person, to H. Ottiwell, or to any other person entitled thereto, within 20 years [321] next before the time of the suing out of the writ. Secondly, That a present right to receive the said debt and damages accrued to a person capable of giving a discharge for and a release of the same, more than 20 years before the suing forth of the writ of sci. fa., and that no part of the principal money of the said debt and damages, nor any interest thereon, was paid, nor any acknowledgment of 764 FARBAN V. BERESFORD [1842-43] X CLABK & FINNELLY, 322 the right thereto given in writing, signed by the said J. Dunbar or by his agent, etc., to the said H. Ottiwell, or to the executors, or to any or either of them, or to any other person entitled thereto, within 20 years next before the time of the issuing of the sci. fa. (see the statute 3 and 4 W. 4, c. 27, s. 40). To these pleas, the Defendants in Error replied a former sci. fa., issued at their instance in Michaelmas term 1817, to revive the same judgment; and that such proceedings were had thereon, that it was afterwards considered by the Court of King's Bench that they should have their execution against J. Dunbar, for the debt, damages, etc. To this replication the Plaintiff in Error filed a general demurrer, in which the Defendants in Error joined. The case was argued before the Court of Queen's Bench in Michaelmas term 1837, and judgment of execution was awarded to the Defendants in Error (6 Law Rec. 2d series, p. 10 : 1 Sause and S. 218 n.). The Plaintiff in Error brought a writ of error on that judgment in the Exchequer Chamber in Ireland, where the judgment of the Court of Queen's Bench was affirmed, dissentiente Mr. Baron Foster (see Ottiwell v. Farran, 2 Irish Law Rep. 110, 3d series). The present writ of error, brought to reverse both those judgments, was argued in the presence of the [322] learned Judges of the Common Law Courts,* on the 30th of June and 1st of July 1842. The Solicitor-general and Mr. Wordsworth, for the Plaintiff in Error :-It is a difficult task, and requires much confidence in the case of the Plaintiff in Error, to contend against a judgment which has the sanction of two Courts, and of all the Judges in Ireland, except one (see this case 6 Law Rec. (2d series) p. 10, and 2 Ir. Law Rep. 110 et seq.; Crofts v. Hewson, 5 Law Rec. (2d series) 263; Kealey v. Bodkin, 1 Sau. and Scul. 211; Finch v. Fitzgibbon 6 Law Rec. (2d series) 312; and Ryan v. Cambie, 2 Ir. Eq. Rep. 328). It appears that three judgments had been entered up on so many bonds in 1810, against a Mr. Dunbar. He was then and for some time afterwards in possession of some freehold property, which he assigned to the Plaintiff in Error and other persons, for valuable consideration. There is no doubt that this property was then affected by those judgments, and they were revived in 1817 against Mr. Dunbar. The scire facias issued in 1837 applied to one of those judgments of 1810, without taking any notice of the revival in 1817. The Plaintiff in Error knew nothing of the demand thus made, having purchased the property in ignorance of any charge of this nature. He appeared to the writ, and pleaded the recent Statute of Limitation. The Plaintiffs below then replied the revival in 1817, as sufficient to take the case out of the statute, the 20 years' limitation not having expired from the date of that revival to the issuing of the present writ of sci. fa. Upon demurrer to that replication, the case came before the Courts, whose judgments are now brought under the consideration of this House. The question turns on the construction of the 40th [323] section of the statute...
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