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PART III.

CH, II.

inan's lien.

If the tenant for life of an incumbered estate fails to

pay the interest on the incumbrances and a part of the Remainder- incumbered property is sold to satisfy the interest, the

remainderman is entitled to a charge or lien on the life estate, but he has no present right to receive the money till the death of the tenant for life, and therefore time does not run against the remainderman in respect of such a charge or lien until his interest falls into

possession (1). Revivor of In the case of judgments, however, it has been judgments.

questioned whether or not a new period from which the statute begins to run afresh is given by revivor, the real point involved being whether, when a right to receive has once existed, it can accrue a second time within the meaning of the Act, or whether the time must always be reckoned from its first accrual. In Ireland, where by statute (2) judgments were assignable at law, and consequently were always, before 13 & 14 Vict. c. 29, looked on as common assurances (3), and kept alive as real securities for long periods, the opinion of the judges was almost from the first in favour of the view that time would run afresh from the date of the revivor (4). In one case the question came before the House of Lords (5) on appeal from the Exchequer Chamber in Ireland (6), but no decision was given upon it, as the House of Lords reversed the decision of the Court below on a point of pleading, holding that the judgment in sci. fa. relied on could not, as was held below,

(1) Kirwan v. Kennedy, 3 Ir. R. Eq. 472.
(2) 9 G. II. c. 5, Ir.
(3) Carleton on Judgments, p. 1.

(4) Crofts v. Hewson, 5 Ir. L. Rec. N. S. 263; 2 Jon. 499; Kealey v. Bodkin, S. & Sc. 211; 5 Ir. L. Rec. N. S. 224; Finch v. Fitzgibboii, 6 Ir. L. Rec. N. S. 312; Ottiwell v. Dunbar, 6 Ir. L. Rec. N. S. 10; Ottiwell v. Farran, S. & Sc. n. 218; kyan v. Cambie, 2 Ir. Eq. R. 328; contra Bolton v. Armstrong, 5 Ir. L. Rec. N. S. 37.

(5) Farran v. Beresford, 10 C. & F. 319; 5 Ir. L. R. 487.

(6) Ottiwell v. Farran, 2 Ir. L. R. 110; 2 Jebb & S. 97; sub nom. Farran v. Beresford, 1 Smythe, 297.

CH. II.

be taken advantage of by replication. Tindal, C.J., Part III.

, however, in delivering the opinion of the judges, intimated that, whatever might be the case, if the revivor was between the same parties and was only necessary because the time for execution had elapsed, a new present right to receive was given by the judgment in sci. fa. when that writ was necessary in consequence of the death of the parties, as was the fact in the case before the House of Lords, and indeed in every case in which the point had occurred. This doctrine was approved by Lyndhurst, L.C., in giving judgment, and was in the next year expressly affirmed in the House of Lords in a precisely similar case (1), where no question arose on the form of the pleadings. So far, therefore, as regards a revivor against the representatives of a deceased party to the existing judgment, the law was settled (2). Lord St. Leonards in his essay on the Real Property Statutes (3), and Mr. Prideaux in his treatise on Judgments (4), seem to treat the cases referred to above as deciding the point generally, whatever might be the nature of the revivor; but neither of the cases in the House of Lords can be considered as deciding the effect of a revivor between the original parties. The point arose in Ireland, and it was decided in the case of Griffin v. Blake (5) by Cusack-Smith, M.R., that time began to run afresh from such revivor as well as from a revivor where there was a change of parties. This decision was confirmed by the judgment of the Committee of the Privy Council on appeal from the Incumbered Estates Commissioners (6), and must be considered law in

(1) Farrel v. Gleeson, 11 C. & F. 702.

(2) See Conlan v. Bodkin, 7 Ir. L. R. 467; and Kirkwood v. Lloyd, 11 Ir. Eq. R. 561; on appeal, 12 Ir. Eq. R. 535.

(3) Page 123.
(4) Page 57.
(5) 2 Ir. Ch. R. 645.
(6) In re Blake, 2 Ir. Ch. R. 613.

N

CH, II.

Part III. Ireland (1). It is clear that the nature of the Irish judg

ments before alluded to had a great effect upon the minds of the Irish judges. There is no decision on the point in England, but Tindal, C.J., seems to have thought that the question depended on whether an action would lie on a judgment on a sci. fa. between the original parties (2), and if it depends on this the distinction would seem to cease, as it is probable that under the practice before the Common Law Procedure Act, 1852 (3), such an action would have lain (4). The action of sci. fa. or the writ of revivor substituted for it by the Common Law Procedure Act, 1852 (5), was of a mixed nature, being for some purposes an original action, and for others only a continuation of the former action (6). The subject matter of the plaintiff's claim was not given by the judgment of revivor, and the effect of a judgment of revivor was to give the plaintiff a new right to receive the benefit of the original judgment or the money secured by it, and the form of the judgment in revivor was the same, whoever were the

parties (7). What lands

Although a judgment of revivor was in some sense a were bound by revivor continuation of the original judgment, yet, according to of a judge the weight of authority, it would not revive the original

judgment as against any of the lands of the conusor which previous to the revivor had come into the hands of persons neither parties nor privies to the revivor; nor would a judgment of revivor against an executor have

(1) See Johnson v. Bell, 6 Ir. C. L. R. 526. Irish Land Commission v. Junkin, 24 L. R. Ir. 40.

(2) Farran v. Beresford, 10 C. & F. 319; 5 Ir. L. R. 487.
(3) 15 & 16 Vict. c. 76.

(4) See as to Ireland the Common Law Procedure Act, 1853 (16 & 17 Vict. c. 113), ss. 148–154, now repealed (except s. 153), see 55 & 56 Vict, c. 19.

(5) Obrian v. Ram, 3 Mod. 186; Woodyeer v. Gresham, Holt, 101 ; see 2 Lord Raymond, 1050; Fitzherbert N. B. 122 E.; Vin. Abr. tit. Debt, M. 13 & 14. See Carleton on Judgments, 182.

(6) See Wall v. Walsh, 4 Ir. R. C. L. 103.
(7) See Conlan v. Bodkin, arguendo, 7 Ir. L. R. 470.

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CH, II.

XLII. rr.

revived the original judgment against the heir or vice Part III. versá (1). Where, however, land had been settled subsequently to the original judgment, a revivor against å a person in possession under the settlement would have bound all those who claimed reversionary or contingent interests in the same land under the settlement (2) The sections of the Common Law Procedure Act, Revivor

abolished. 1852, relating to revivor are repealed, and it would seem that the writ of revivor and judgment of revivor are now abolished. The procedure substituted for the writ of revivor is to be found in R. S. C., 1883, 0. XLII., rr. 22 & 23 (3). These rules are as follows :R. 22. “As between the original parties to a judgment R. S. C.,

1883, 0. or order, execution may issue at any time within six years from the recovery of the judgment or the date of 22 & 23. the order.

R. 23. “In the following cases, viz. :

“(a) Where six years have elapsed since the judgment or date of the order, or any change has taken place by death or otherwise in the parties entitled or liable to execution.

(6) Where a husband is entitled or liable to execution upon a judgment or order for or against a wife.

"(c) Where a party is entitled to execution upon a judgment of assets in futuro.

(d) Where a party is entitled to execution against any of the shareholders of a joint stock company upon a judgment recorded against such company, or against a public officer or other person representing such company;

“The party alleging himself to be entitled to execution,

(1) Kirkwood v. Lloyd, 11 Ir. Eq. R. 561; on appeal, 12 Ir. Eq. R. 585; In re Boškin, 12 Ir. Ch. R. 61; contra, Martin v. McCausland, 3 Ir. L. R. 113; Murray v. Clarke, 4 Ir. C. L. R. 610.

(-) Ryanv. Cambie, 2 Ir. Eq. R. 328; Franks v. Mason, 9 Ir. Eq. R. 358. (3) R. S. C. Ir., 1891, 0. XLII. rr. 24 & 25.

CH. II.

PART III. may apply to the Court or a Judge for leave to issue

execution accordingly. And such Court or Judge may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in an action may be tried. And in either case such Court or Judge may impose such terms as to costs or otherwise as shall be just.”

O'Brien, J., in the case of Evans v. O'Donnell (1), raised the question whether an order of this kind for leave to issue execution would have the effect that was ascribed to a revivor in Farran v. Beresford (2) by the House of Lords, so as to give to a plaintiff a new period from which the statute runs afresh. The learned judge expressed an opinion that the force of the Irish Judicature Act (which for this purpose is the same as the English one) would be held to deprive such an order of all efficacy

as a means of making time run afresh. Judgment The recovery of a judgment in an action of debt in action on judgment.

on the original judgment will not have the effect of extending the time for bringing any proceedings on the original judgment (3); but of course the new judgment creates a new judgment debt, and proceedings may be

taken on it independently. Legacies. In the case of a legacy, apart from a deficiency of

assets, which will presently be discussed, time begins to
run from the moment at which the legacy becomes
actually payable (4); this, in an ordinary case, where no
time is fixed in the will, is twelve months after the
testator's death (5). A legatee is ordinarily entitled
to interest from the time when the legacy becomes

(1) 16 L. R. Ir. at p. 452.
(2) 10 C. & F. 319.
(3) Watters v. Lidwill, 9 Ir. L. R. 362.

(4) Earle v. Bellingham (No. 2), 24 Beav. 448; Prior v. Horniblow 2 Y. & C. Ex. 200.

(5) See Williams on Executors, 8th ed. 1393, and cases referred to.

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