articles: the marriage took effect and the articles were registered on the 4th Aug. 1764. There was issue of the marriage, the plaintiffs James Marinus and Macarius John Kennedy. At the time of the death of Marinus James Kennedy, the estates were subject only to one judgment of 7001. obtained by Mrs. Elizabeth Clarke, which became vested in: John Fullam: but Thomas and Walter having after the marriage, improvidently contracted debts, for most part of which they had executed their joint and several bonds, on which judgments had been entered; and having disagreed as to the proportions of said debts to which they were respectively liable, Walter filed his bill, in 1776, for a partition of his father's estates, grounded on the then existing laws against the growth of popery ; and Thomas having answered and filed a cross bill, several adverse proceedings were had from thence until 1780, when their differences were accommodated, and a decree for a partition had by consent of Thomas pursuant to which the county of Dublin estates were allotted to Thomas, and the city estates to Walter. In the mean time several of the creditors had sued out custodiams, and particularly Ignatius Purcell, who sued out the first custodiam and got into possession of the whole estate and James Farrell, who had obtained two judgments, in Hil. 1773, having employed the defendant, Orven Daly a practicing attorney, to recover the amount, he had proceeded to issue executions thereon. For the purpose of extricating themselves from these embarrassments, Thomas and Walter Kennedy conceived the design of procuring a sale of the estate discharged of the articles of Aug. 1764, for the payment of their own debts; and with this view they laid a case before Dr. Radcliff, a -1.804. KENNEDY V DALY. 1804.* KENNEDY v. DALY. gentleman of eminence at the bar, for his advice how far these articles were a charge on the estate, and whether they would preclude a sale for the benefit of the judgment creditors of Thomas and Walter. The opinion given by Dr. Radcliff on this case was, that the judgment creditor of Marinus James Kennedy (the father of Thomas and Walter) had a right to a sale for his benefit, and that the judgment creditors of Thomas and Walter, previous to the statute of 1778(a) were also unaffected by the articles (upon this however he expressed some doubt); but he advised a bill to be filed by a judgment creditor of their father on behalf of himself and the other judgment creditors, as well of the father (if any) as of Thomas and Walter, to take the opinion of the court on the point, and praying a sale for satisfaction of their demands. A meeting of the creditors was had, and this opinion laid before them. The defendant Daly attended as Farrell's attorney, and assisted Thomas and Walter in prevailing on the creditors to come into these terms; and it was stipulated that Thomas and Walter should be allowed a maintenance of 100l. per annum each, and that their persons should be free from arrests pending the suit. Fullam having refused to permit the suit to be carried on in his name, Farrell was induced to take an assignment of his judgments, and the bill was filed in the Exchequer, in his name, (Daly being his solicitor) on the 13th May, 1782, against Thomas Kennedy and Frances his wife and their children, the present plaintiffs, (who were ther. minors of tender years) and against Walter and his wife and children, against the personal representative of Marinus James, and the trustees in the marriage articles of Thomas, and against Ignatius Purcell and others; stating the decree and partition, the assignment of Fullam's judgments to Farrell and his judgments, and the several other judgments which had been (a) 17 & 18 Geo. 3, c. 49. obtained against Thomas and Walter, and that Farrell was unable to recover his demands by reason of the custodiams obtained by Purcell, and that there was no means of raising or satisfying said several debts, without having a sale of said estates or a competent part thereof; and praying that Farrell and the other creditors might be relieved, and an account of the debts and incumbrances affecting the respective estates of Thomas and Walter and that all the creditors might come in, and that a competent part of said estates might be sold to discharge, as well the judgments against Marinus James the father, as against Thomas and Walter. On the 19th June, 1782, Thomas put in an answer in the name of himself, his wife and sons, which Daly consented to receive without oath; and Thomas and Walter also put in an amicable answer for Thomas Daly, surviving trustee in the articles of 1764 without his consent, and without his having any notice of the suit; issue was immediately joined, an order was obtained by consent for liberty to prove exhibits, (among which were the articles of Aug. 1764) and that all the defendants should appear gratis at the hearing. The cause came, on to be heard as a short cause, on the 3d July, 1782; the articles of 1764 were proved and entered as read; and a decree was pronounced, referring to the chief remembrancer to take an account of the debts affecting the estate of Marinus James Kennedy at the time of his death, and of what was due to Farrell on the foot of the judgment assigned to him, and also on the foot of the judgments obtained by him against Thomas and Walter Kennedy, and of what was due to Ignatius Purcell; and that the several creditors of Marinus James, Thomas and Walter Kennedy should be at liberty to come in and ascertain their several demands: but the decree did not direct an account of the real or personal estate of Marinus James. The parties proceeded before the officer; Farrell proved not only the judgment assigned to him, but those which he had obtained against 1804. KENNEDY υ. DALY. 1804. KENNEDY V. DALY, Thomas and Walter; Purcell also and all the other judgment creditors of Thomas and Walter, to the number of thirty, proved their demands. Pending the account, on the 9th of June 1783, Daly and Farrell settled accounts on the foot of Farrell's several demands, costs, &c. and Farrell appearing thereon to be entitled to the sum of 1,949/. 10s. he accepted Daly's note for that sum payable in twelve months, handed him over all the securities and gave him liberty to proceed in his name. On the 15th July, 1783, the master made his report, stating that the judgment obtained by E. Clarke was the only judgment debt affecting the estate of Marinus James, on which there was due for principal and interest at the time of filing the bill, no more than 920/. but that the other incumbrances amounted to 10,000l. No exception being taken to this report by Thomas and Walter Kennedy, it was confirmed, and the cause was set down and came on to be heard as a short cause on the 23d July, 1783; but though counsel on behalf of Thomas and Walter Kennedy consented to a decree, the court, entertaining doubts as to the propriety of making the decree sought, ordered the cause to be transposed into the list of long causes. It came on accordingly to be heard as a long cause on the 17th Nov. 1783, when the court, having been furnished with copies of the articles of Aug. 1764, ordered that the report should be sent back to the officer, and that Farrell should be at liberty to rehear the cause. The officer having refused to report concerning the real or personal estate of Marinus James, there being no direction for that purpose, Daly set down the cause again for hearing on the 25th of Feb. 1784, but, having ⚫ been irregularly set down, it was struck out of the list, and then Daly obtained an order for a rehearing: upon which, on the 15th May, 1784, it was ordered that Farrell should be at liberty to amend the decree, and the officer was directed to take an account of the real and personal estate of Marinus James, and the value thereof. On the 14th June, 1784, the officer reported that Marinus James did not leave any personal estate, but that he was seized in fee of the estates before mentioned; the county of Dublin estate being of the annual value of 210l. and the city estate of 416%. that Marinus James died a papist, and that Thomas and Walter his only issue also professed the popish religion; and they not having conformed to the established religion, that the said estates became of the nature of gavelkind and partible between Thomas and Walter: the report also stated the bill filed for a partition, the decree thereon, the partition that had taken place, and that Thomas and Walter were seized and possessed of the respective estates thereby allotted to them. On this report the cause came on to be finally heard, on the 19th June, 1784, when the bill was dismissed as to Ignatius Purcell, and as to the trustees in the marriage articles of Thomas and Walter, and as to the personal representative of Marinus James; and the court decreed that Farrell was entitled to the sum reported due to him as assignee of the judgment obtained by E. Clarke, and that in default of payment in three months, a moiety of said lands should be sold to satisfy said judgment, the surplus money to be paid Thomas and Walter on their making a good title to a purchaser. Mr. Robert Blakeley, who had hitherto acted in the cause as solicitor for the defendants Thomas and Walter Kennedy and their wives and children, now ceased to be further concerned for them; notwithstanding which, Daly continued to serve the orders, &c, which were had in the cause, on Blakeley; and also served him with a copy of the decree, the latter part of which, directing the surplus to be paid to Thomas and Walter, was not warranted by the notes at the hearing, 1804. KENNEDY V. DALY. |