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GAZETTE
JANUARY/FEBRUARY 1986
named defendant for £5,000 and the lands in Folios A
and B to the second named defendant for £12,000.
The plaintiff sought possession of the lands contained
in Folios A, B and C and the defendants replied that he
was statute barred and had been since the expiry of six
years from Edmund Dwyer's death. The latter was the
crucial date since James Dwyer had died in 1937 and his
title to the lands would have been effected by s.24 of the
Statute of Limitations which, subject to formalities,
extinguishes title to land after twelve years. Judge
Sheridan could not believe that the taking out of adminis-
tration could revive claims already barred and thus
James Dwyer's estate was only important to the extent
of the portion of the two Folios captured by Edmund
Dwyer during his life.
The plaintiff contended that the relevant limitation
period was twelve years and that proceedings had been
commenced within that period. On the face of it, that
contention was consistent with, and supported by,
McMahon J.'s
obiter dicta
in
Drohan.
Judge Sheridan,
however, found for the defendants on the ground that
the right of Edmund Dwyer's next of kin to shares in his
estate accrued on his death and that right was barred
after the expiry of six years from that date. S.45(l) has
no direct application to an action brought by a personal
representative but the facts, as agreed, revealed that
the plaintiff was acting at the behest and authority
of the next of kin of the registered owners, who resided
in America. The fact that the personal representative
was acting as attorney for next of kin who were statute
barred led Judge Sheridan, unavoidably in the present
writer's opinion, to the conclusion that it would appear
to defeat the purpose of s.45(l) if his personal represent-
ative could acquire Edmund Dwyer's assets and vest
them in his next of kin outside the six year limitation period.
The latter course of events however is not improbable
in the light of McMahon J.'s
obiter dicta
in
Drohan
and
that
dicta
presented an obstacle which Judge Sheridan
felt obliged to surmount. Having referred to the status
of McMahon J.'s observations on the scope of s.45 as
obiter dicta
he went on: "This may be so but,
obiter
or
not, I would never regard any pronouncement of
McMahon J., even if it does not bind me, other than
with respect and total admiration and I would follow it
except in circumstances where I am forced not to do so,
in conscience, having regard to my own view and con-
viction."
6
A consideration of McMahon J.'s observations
in
Drohan
on the scope of s.45 led Judge Sheridan to the
conclusion that McMahon J. was dealing with the law as
it was prior to the Succession Act, 1965. That conclus-
ion was based on McMahon J.'s equation of s.45 with
s.20 of the English Limitations Act of 1939 in both of
which the claims barred were described as actions in
respect of claims to the personal estates of deceased
persons. Since the new s.45(l) applies to claims in
respect of both real and personal property Judge
Sheridan believed that the views of McMahon J. in
Drohan
were clearly distinguishable from the
instant cases and he held "that by reason of the new
s.45(l), as distinct from the old section which did not
affect real property, the claims of the next of kin were
barred after the lapse of six years from Edmund's death."
7
With respect to Judge Sheridan, McMahon J.'s
obiter
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