M. T. 1865. "paid, unto the above-named William Willis, his executors, admiCommon Pleas "nistrators, or assigns, the sum of £651. 18s. 11d., and interest as WILLIS บ. GILDEA. "aforesaid, within the term of three years, to be computed from the "date hereof, in case he shall become entitled to the said lands "within that period, and if not, in case he shall become entitled "in possession to the said lands within that period; and if not then, "within six calendar months after he shall have so become entitled "in possession, without fraud or further delay; that the above obli"gation to be void and of none effect, or else stand or remain in "full force and virtue in law.-Signed, sealed," &c. Collateral with the bond was the usual warrant of attorney to confess judgment, and the condition therein followed the words of condition in the bond itself. Judgment was entered thereon in the Court of Common Pleas, as of Michaelmas Term 1847. stay of execution till the death of Gildea appeared upon the judg ment roll. No On the 11th of August 1865, on motion of the plaintiff, Mr. Justice O'HAGAN made an order for liberty to issue a writ of revivor. 66 6 Finch White, on the part of defendant, now moved, on notice, that, "the order made in this cause, on the 11th of August last, "giving the plaintiff liberty to issue a writ of revivor on foot of the "judgment herein, of Michaelmas Term 1847, may be set aside, or "that the entry of the said judgment may be amended, by adding "in the margin of the roll the words following, viz., with stay of "execution until the expiration of six calendar months after James "Knox Gildea the elder, brother of the conuzor, shall die, and the 666 conuzor shall become entitled to the possession of the lands, &c., 666 'of which the said James Knox Gildea was seised on the 4th of "January 1848." The order which I seek to set aside was made absolute, in the first instance.* The object of the plaintiff in attempting to revive his judgment cannot be merely to keep the case out of the statute, because the cases of Kennedy v. Whaley (a) and Gilman v. Chute (b) establish that the Statute of Limitations does not begin to run until the time limited by the condition incorporated with the bond upon which a judgment is obtained. The reason why we are obliged to come into Court to make this motion, instead of pleading to the writ, is, that the matters upon which the present application is based do not afford a good defence, and might be demurred to; it being a rule of law that no plea to a revived judg(6) 11 Ir. Law Rep. 442. (a) 12 Ir. Law Rep. 54. NOTE.-There were also affidavits of the plaintiff and defendant respectively, upon which, however, nothing subsequently turned. ment shall be allowable which would have been a good defence to the original judgment. If, however, we were to allow the judgment to be revived, we may be concluded by the record from denying our present liability: Sealy v. Lawder (a). The only defences admissible are nul tiel record, release, payment, or the Statute of Limitations. I cannot plead any of those. As the Statute of Limitations has not yet begun to run,, the only object that the plaintiff can have in reviving this judgment is, to be in a position to levy execution. This would manifestly be a gross perversion of the process of this Court; and yet, if the judgment be now unconditionally revived, there will be nothing to prevent the plaintiff from at once setting the Sheriff in motion. As our object is merely to protect ourselves, by carrying out the terms of the original contract, we have framed our notice of motion in the alternative, and pray that if the judgment be revived, the officer of the Court be directed to indorse a stay of execution upon the margin of the judgment roll. The case of Banco v. Banco (b) is a case where this course was adopted. We have obtained a copy of the revived judgment in that case from the Court of Exchequer; and it contains in the margin such a stay. There is a short note of the case in 1 Ir. Law Rec., old series, p. 236, under the title of Banes v. Banes. That was a case of a post obit bond; and the stay of execution was till after the death of the conuzor. In that case also there was no stay of execu tion on the original judgment. Jordan, in support of the rule. There are two objects in reviving this judgment; first, to prevent the statute from running; and, secondly, to enable us to levy execution. I submit that this Court has no authority to interfere with us at this stage of the proceedings, and that the only courses open to the other side, if they think that they can make out a case, is to plead the facts that constitute that defence, or to apply to a Court of Equity for an injunction. The original judgment being in 1848, the Statute of Limitations would be a good plea in two years and a-half more; and this we wish to prevent. [Having read the condition of the bond.]-The lands there mentioned are actually, at the present time, about being sold in the Landed Estates Court, at the petition of the defendant, so that what he is now doing will prevent the lands from ever coming into his possession; under these circumstances he is not entitled either to assistance from a Court of Equity nor to any favour at your hands; it being a well settled principle that, where a man, by his own act, (6) Exch., Hil. 1828. (a) Arm. M'C. & Ogle. 64. M. T. 1865. WILLIS V. GILDEA. M. T. 1865. prevents a condition from taking effect, he shall not be allowed to shelter himself under that condition. Common Pleas. WILLIS GILDEA. Per Curiam. Let the judgment be revived, but let stay of execution till the death of Anthony Knox Gildea and the further order of the Court be marked upon the judgment roll. Let the defendant also have his costs. The order was as follows:-It is ordered by the Court, that the first portion of the motion be refused, and accordingly, that the order pronounced in this cause by the Right Honorable Mr. Justice O'HAGAN on the 11th of August last do stand; and it is further ordered, that an entry be made on the judgment roll, staying execution in the cause until six months after the death of James Knox Gildea, the elder brother of the conuzor of the judgment, and until the further order of this Court. And it is further ordered, that the plaintiff do pay to the defendant the costs of this motion, when same shall be taxed and ascertained. Motion granted with costs. INDEX. ACTION. See COSTS OF ACTION. AGENCY. See CARRIER. AGREEMENT. See SUB-LETTING. AIDING AND ABETTING. See FORGERY. ALTERNATIVE PENALTY. ARBITRATOR. See MANDAMUS, 1. ASSIGNMENT. See SUB-LETTING. ATTACHMENT ORDER. See GARNISHEE Order. ATTORNEY. See COSTS OF ACTION AGAINST. BAIL MOTION. See PRACTICE, 2. BANKRUPTCY. See TRADER DEBTOR SUMMONS. BILL OF SALE. See PRACTICE, 5. VOL. 16 A sent a parcel from Belfast, by the Upon the refusal of A to pay for, and Held, that it was not the duty of 77L CONDITION, PRECEDENT. The Grand-jury Act made certain notices to certain public bodies and officers a condition precedent to obtaining compensation for malicious burning. The C. Improvement Act, as far as the city of C. was concerned, transferred the jurisdiction as to compensation for malicious burning to the Town-council, and introduced various changes as to the powers and duties of the public bodies and officers mentioned in the former Act, which rendered an exact compliance with its provisions impossible. A, having applied to the Town-council of C. for compensation, was required to prove the service of these notices; and this decision was affirmed by the Recorder. A now applied for a certiorari. Held that, though compliance modo et forma with some of the notice provisions had become impossible, yet those provisions had an ulterior object, with respect to which compliance might still be had in substance. Held also that, though the performance of all the notice provisions might be rendered impracticable by subsequent legislation, the performance of 1. Certiorari.-The Summary Jurisdiction Act (14 & 15 Vic., c. 92, s. 9, clause 7) makes a party convicted thereunder liable to fine or imprisonment. D. being convicted under this clause, was sentenced to a fine of £5 or to be imprisoned for three months Held, bad, as it was the duty of the Justices to make the selection of the penalties. Held also, that, though bad in part and good in part, the sentence could not be amended by omitting the part bad, inasmuch as the adjudication was not an order but a conviction. Q. B. Regina v. Justices of Wicklow 23 2. Conviction at Petty Sessions for keeping a setting dog Held, bad, the Act prohibiting the keeping of setting dogs conferring no summary jurisdiction. Q. B. Regina v. Justices of County of Cork 423 |