COURTS OF JUSTICE (No. 2) ACT, 1928

AN ACT TO VALIDATE CERTAIN JUDGMENTS HERETOFORE OBTAINED IN THE HIGH COURT ON DEFAULT OF APPEARANCE BY THE DEFENDANT AND TO MAKE PROVISION IN RESPECT OF CERTAIN MATTERS CONSEQUENTIAL ON SUCH VALIDATION AND IN PARTICULAR IN RESPECT OF CERTAIN OTHER JUDGMENTS SO OBTAINED WHICH HAVE LATELY BEEN SET ASIDE BY THE HIGH COURT. [26th December, 1928.]

BE IT ENACTED BY THE OIREACHTAS OF SAORSTÁT EIREANN AS FOLLOWS:—

1 Definitions.

1.—In this Act—

the word “Judge” means a Judge of the High Court;

the expression “the Master” means the Master of the High Court; and

the expressions “the summons”, “the suit”, “the plaintiff”, and “the defendant”, when used in relation to a judgment to which this Act applies, mean respectively the summary summons or the plenary summons (as the case may be) on which such judgment was obtained, the suit instituted by such summons, and the plaintiff and the defendant in such suit.

2 Judgments to which this Act applies.

2.—Wherever—

• (a) a plaintiff in a summary summons or a plenary summons on foot of a liquidated demand has on default of appearance by the defendant therein obtained judgment on such summons against such defendant, and

• (b) such defendant was not an infant or person of unsound mind not so found, and

• (c) such judgment was obtained by entering or marking the same in the Central Office without any hearing of such summons by the Master or a Judge, and

• (d) such judgment was so obtained on or after the 1st day of October, 1926, and before the 14th day of July, 1928, and

• (e) such judgment was not set aside, withdrawn, or vacated before the 18th day of October, 1928, by an order made or other proceeding had in the suit instituted by such summons,

then and in every such case such judgment shall be a judgment to which this Act applies.

3 Validation of judgments to which this Act applies.

3.—(1) A judgment to which this Act applies shall be and shall be deemed to have been as from the 17th day of October, 1928, incapable of being impugned, set aside, or reversed on account of the same having been obtained without any hearing of the summons by the Master or a Judge or without any determination by the Master or a Judge of the judgment to which the plaintiff was entitled, and every order made or proceeding had after the 17th day of October, 1928 (whether before or after the passing of this Act), whereby such judgment was or shall be set aside or reversed on the ground aforesaid shall be and, if made or had before the passing of this Act, be deemed always to have been void and of no effect.

• (2) Subject to the provisions of the next following sub-section of this section, every judgment to which this Act applies and every order made, proceeding had, or step taken (whether by way of legal or equitable execution or of registration of a judgment-mortgage or otherwise howsoever and whether before or after the passing of this Act) on foot of such judgment shall be and, if obtained, made, had, or taken before the passing of this Act, shall be deemed always to have been as valid and effectual as the same would have been if such judgment had been obtained after a hearing of the summons by the Master or a Judge (as the case might require) and the determination by the Master or such Judge of the judgment to which the plaintiff was entitled.

• (3) Nothing in this Act shall prejudice or prevent a judgment to which this Act applies or any order made, proceeding had, or step taken (whether before or after the passing of this Act) on foot of such judgment being set aside, reversed, vacated or avoided, whether before or after the passing of this Act, on any ground other than on account of such judgment having been obtained without any hearing of the summons by the Master or a Judge or without any determination by the Master or a Judge of the judgment to which the plaintiff was entitled.

4 Judgments already set aside by the Court.

4.—Where a judgment of the High Court on a summary summons or a plenary summons on foot of a liquidated demand was obtained on default of appearance of the defendant and has been set aside by the High Court or a Judge thereof before the 18th day of October, 1928, or where the setting aside of such judgment has been affirmed by the Supreme Court, on account of the same having been obtained without any hearing of the summons by the Master or a Judge, the following provisions shall have effect, that is to say:—

• (a) if before such judgment was so set aside an order in the nature of a writ of fieri facias was issued to recover the amount of such judgment and chattels of the defendant were seized and sold under such order, the defendant shall not be entitled to recover from the plaintiff or from the under-sheriff or county registrar by whom such order was executed or from any other person on account of such seizure and sale any greater sum (whether by way of damages, money had and received to his use or otherwise) than the sum for which such chattels were so sold less by any moneys paid out of such sum to the defendant by such under-sheriff or county registrar;

• (b) if before such judgment was so set aside the plaintiff recovered from the defendant by garnishee, receiver by way of equitable execution, or any other form of execution not otherwise specifically dealt with in this section any moneys on foot of the amount of such judgment, the defendant shall not be entitled to recover from the plaintiff on account of such execution any greater sum (whether by way of damages, money had and received to his use or otherwise) than the amount of the moneys actually so recovered by the plaintiff;

• (c) if before such judgment was so set aside the plaintiff registered such judgment as a judgment-mortgage against lands of the defendant, the defendant shall not be entitled to recover from the plaintiff on account of such registration of such judgment any sum (whether by way of damages or otherwise) whatsoever save only the costs and expenses (if any) actually incurred by the defendant in procuring the vacation or cancellation of such judgment-mortgage.

5 Short title and citation.

5.—(1) This Act may be cited as the Courts of Justice (No. 2) Act, 1928.

• (2) For the purposes of collective citation the expression “the Courts of Justice Acts, 1924 to 1928,” shall include this Act.