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IRISH CHANCERY REPORTS. 

REPORTS OF CASES 

ABGUED AND DETERMINED IN 

THE HIGH COURT OF CHANCERY, 

Court 0f Jppeal in C^anttrg, 
ROLLS COURT, 

THE LANDED ESTATES COURT, 

▲ND 

COURT OF BANHHUPTCY AND INSOLVENCY, 

IN 

IKELAND, 

DcBiNG THE Years 1860 and I66I. 



Cjbanters, antt Court o( 9$$e«l fn Cjftintrrs: 

Bt JOHN PITT KENNEDY, Esq. WILLIAM HICKSON, Esq. 

Airo LESLIE S. MONTGOMERY, Esq. 

Bt EDWARD SHIRLEY TREVOR, Esq. 

%ttxioei fftftateif Court: 

R. W. MCDONNELL, Esq. and ROBERT REEVES, Esq. 

Court o{ )8«tdmi)itcs snli Sntfolbnits : 

Bt JOHN O'LEARY, Esq. and GEORGE CREE, Esq. 

YOL. XL 

DUBLIN: 
HODGES, SMITH & CO., 104 GRAFTON STREET. 



1861. 



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Printed by Datid Cobbbt, 11 Upper Onnond Quay, DabHii. 



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JUDGES AND LAW OFFICERS, 



HIGH COURT OP CHANCERY. 
Lord Chancellor, — The Right Hon. Mazdsbb Bradt. 
Master of the Rotte The Right Hon. Thomas Bebrt Cusack Smith. 

COURT OF APPEAL IN CHANCERY. 

The Right Hon. The Lord Chancellor. 

Lord Juttiee. — The Right Hon. Francis Blaokburne. 

LANDED ESTATES COURT. 
Judges, — The Hon. Mountifort Lonofield. 

The Hon. Charles James Habobeave. 
The Hon. William C. Dobbs. 

COURT OF BANKRUPTCY AND INSOLVENCY. 
Judges, — The Hon. Walter Bebwick. 
The Hon. David Lynch. 

ATTORNEYS-GENERAL. 
The Right Hon. John D. Fitzoebald, Q. C. 
The Right Hon. Rickabd Deast, Q.C. 
The Right Hon. Thomas CHaoan, Q. C. 

SOLICITORS-GENERAL. 
Rickabd Deasy, Esq., Q. C. 
Thomas O'Hagan, Esq., Q. C. 
James A. Lawson, Esq., Q.C. 

SERJEANTS. 
John Howlet, Esq., Q. C. 
Thobcas O'Haoan, Esq., Q. C. 
GrEBALD Fitzoibbon, Esq., Q. C 
Jaices a. Lawson, Esq., Q. C. 
Edwabd Sullivan, Esq., Q. C. 



Mbx.— In the Long Vacation of I860, Mr. Serjeant Fitzoibbon was appointed Master in 
Chancery, in the room of A. Ltle, Esq. 



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GOBBIGENDA. 

Page 205, line 14 firom top,>r " two " read " four." V 

,, 309, line 2, for " there are two parties," read *' there are not two parties." Brer 

„ 335, first line of second paragraph, /)r " incumbered," read " unincumbered." g 



Bon 

Cm 
Cot 
Cw 
Cot 

do 

Da] 



A TABLE 

OF THE 

NAMES OF THir CASES KEPORTED. 

N.B.— ^ (veriusj always follows the name of the Flaintiff. 



Adams t; Gramble 


...269 


Delahoyd, In re 


...404 


Attorney-General, Daly v 


... 41 


DoddsrDodds 


... 374 


Attorney-Greneral v Evans 


... 171 


Doran v Carroll 


... 379 


B 




Down and Connor, Bishop 


of, V 


Barry, Brereton v ... 


... 97 


Miller 


App. 1 


Brereton v Barry 


... 97 


Duckett V Gordon ... 


... 181 


Browne v Coote 


... 213 


Dnndalk and Enniskillen Railway 


Browne v Fitzpatrick 


... 213 


Company, In re... 


... 467 


Bnlfin V Danne 


... 198 


Dunne, Bulfin v 


... 198 


Burgess' Trusts, In re 


... 164 


E 




Burmester, In re 


... 1 


Edgeworth's Estate, In re 


293, 294 


C 




Edwards' Estate, In re 


... 367 


Caffirey, Kinsella » ... 


... 164 


Elliott 9 EUiott 


... 482 


Carroll, Doran p 


... 879 


Evans, The Attorney-General t; ... 171 


Comyn's Estate, In re 


... 830 


F 




Coote, Browne v 


... 213 


Fitzgerald v (yConnell 


... 437 


Courtney, In re 


... 410 


Fitzgerald's Estate, In re 


278, 356 


Croebie, In re 


... 432 


Fitzpatrick, Browne v 


... 218 


D 




Fitzpatrick, Watson v 


... 213 


Daly V The Attorney-General 


... 41 


Fowler v Lightbume 


... 495 



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TABLE OF CASES REPORTED. 



G 




In re Houghton 


... 136 


Gamble, Adams v ... 


... 269 


In re Humble 


... 132 


Gardiner, In re 


... 519 


In re Hunt's Estate ... 


...299 


Gordon , Duckett v ... 


... 181 


In re Jackson 


... 145 


Gray t; Gray 


... 218 


In re Jessop and others 


... 424 


Gray v Robinson 


... 205 


In re Johnston 


... 62 


H 




In re Kennedy's Estate 


... 298 


Hammersley, In re ... 


... 229 


In re Lanauze 


... 19 


Harding, In re 


... 29 


In re Lawder's Estate 


... 346 


' Harley v Harley 


... 451 


In re Lockhart 


... 68 


Harris, Malone v 


... ^3 


In re M'Kenna 


... 65 


Homan v Skelton 


... 75 


In re Plunketf s Estate 


... 361 


Houghton, In re 


... 136 


In re Power's Estate 


288, 295 


Humble, In re 


... 132 


In re Quin 


... 57 


Hunfs Estate, In re ... 


... 299 


In re Rathbome 


... 141 


Hutton, Joyce v 


... 123 


In re Robinson 


... 385 


1 




In re Roddy's Estate 


... 369 


In re Burgess' Trusts 


... 164 


In re Sallery 


... 236 


In re Burmester 


... 1 


In re Sanderson 


... 421 


In re Comyn's Estate 


... 330 


In re Smith and Ross 


... 897 


In re Courtney 


... 410 


In re Turner's Estate 


... 304 


In re Crosbie 


... 432 


J 




In re Delahoyd 


... 404 


Jackson, In re ^ 


... 145 


In re Dundalk and Enniskillen 


Jessop and others. In re 


... 424 


Railway Company 


... 467 


Johnston, In re 


... 62 


In re Edgeworth's Estate 


293, 294 


Joyce t; Hutton 


... 123 


In re Edwards' Estate 


... 367 


K 




In re Fitzgerald's Estate 


278, 356 


Kennedy's Estate, In re 


... 298 


Ifi re G-ardiner 


... 519 


Kemaghan v M*Nally 


... 52 


In re Hammersley ... 


... 229 


Kinsella t; Caffrey ... 


... 154 


In re Harding 


... 29 


Knox V Mayo 


... 265 



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TABLE OF CASES REPORTED. 



m 



Q 



Lanauze, In re 


... 19 


Qnin, Inre 


... 57 


Lawder's Estate, In re 


... 346 


R 




Ligbtburne, Fowler v 


...496 


Rathbome, In re 


... 141 


LitUewood, Orr V ... 


... 502 


Redmond, Tobin v ... 


... 446 


Lockhart, In re 


... 68 


Rice V O'Connor 


... 510 


Long V Long 


... 252 


Robinson, Gray v 


... 205 


M 




Robinson, In re 


... 385 


McDowell, M'Tear v 


••• 338 


Roddy's Estate, In re 


... 869 


H*Kenna,Inre 


... 65 


S 




M^allj, Kemagban r 


... 52 


Sallery, In re 


... 236 


M^ear v M'DoweU 


... 338 


Sanderson, In re 


... 421 


Malone v Harris 


... 33 


Scott V Scott 


... 114 


Martin, Woods p 


... 148 


Sim V Sim 


... 310 


Mayo, Knox V 


...265 


Skelton, Homan v ... 


... 75 


Miller, Bishop of Down and Con- 


Smith and Ross, In re 


... 397 


nor V 


App. 1 


Smyth, Walcott v ... 


... 266 


. N 




T 




Newton v Newton ... 


... 239 


Thornton v Thornton 


... 474 


O 




Tobin V Redmond . . . 


... 445 


O'CJonnell, Fitzgerald v 


... 437 


Turner's Estate, In re 


... 304 


O'Connor, Rice v 


... 510 


W 




Orr V Little wood 


... 502 


"Walcott r Smyth ... 


... 266 


P 




Watson V Fitzpatrick 


... 213 


Flnnkett's Estate, In re 


... 861 


Woods V Martin 


... 148 


Power's Estate, In re 


288, 295 







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A TABLE 

OP 

THE NAMES OF THE CASES CITED. 

N.B. — V (vertuM) always foQowB the name of the Flaintiff. 







... 386 


Atkinson, Hyde v ... 


...350 


Acheson v Fair 




... 426 


Attorney-General v Golding ... 43 


Ackerdey, Tipping v.. . 




382, 383 


Attorney-General v Hurst 43, 45 


Adams v Jones 




... 864 


Attorney-General v Ironmongers 


AdamSy Wedgwood v... 




... 215 


Company 


43,44 


Addison v Bnsk 


166, 


, 160, 161 


Attorney-General v. Poulden ... 438 


Adey, Wills v 




... 284 


Attorney-General v Sheffield Gras 


Aldrich v Cooper 


348, 


351, 352 


Consumers Company ... 36 


Aldndge, Strickland v 




... 224 


Audsley v Horn J 15, 


118, 119, 120, 


Alison V Furnival 




... 385 




121, 122 


Ancastcp, The Dnke of, Lord 


Tyr. 


Averajl v Wade 


370, 372 


connell v 




... 100 


Ayres, "Vicars Choral v 


...496 


Anderson, White v ... 




...229 


[bachelor, Bennett v ... 


... 142 


Andrewes v George ... 




... 184 


Baggott V Meux 


271, 272, 276 


Andrews, Messenger v 




... 475 


Bailey, Keppel t; 


36, 38, 138 


Anster 9 Nehns 




... 55 


Bailey, Power v 


272, 275 


Applebee, Be 




...247 


Baker v Baker 


438, 439, 442 


Appleford, Easnm v ... 




... 428 


Baker v Gostling 


... 174 


Armagh, Archbishop of, Marraj v 


Baldwin, Popham v ... 


512,516 






App. 41 


Ban V Bumford 


... 128 


Armstrong, Tullettv 


271 


, 273, 275 


Ball, Forbes v 


... «}4v 


Armstrong, Williams v 




... 49 


Balls V Thick 


... 457 


Arnold, Ex parte *•• 




... 404 


Bantock, Hockley v ••• 


199,204 


Arrowsmith, Stupart v 




... 314 


Bardwell, Ex parte ... 


... 415 


Arrowsmith's Trust ... 




... ^\jnt 


Bargeman, Scott v ... 


... 156 


Amndale, Blades V ... 




... 457 


Barker, Wharton v ••• 


^.494 


Ascne, Vanghan v ... 




App. 11 


Barkworth v Toung 


188, 191, 192, 


Asl^town, Lord, Cosby v 




476, 480 




193,194 


Atkinson, Bernasconi v 




362, 364 


Barlow v Osborne ... 


...230 

1 



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TABLE OF CASES CITED. 



Barnes v Racster 346, 348, 349, 350, 
351, 352, 353, 354, 355 



Barnbart v Greenshields 

Barrett 9 Hajter 

Barron v Barron 

Barron, Honsin v 

Barry, Brereton v ... 

Barton v Barton 

Barton, Major v 

Barwell, Wyatt v 

Bateman, Doe d. Freeman v 

Batwell, Massy v 

Beaumont v Fell 

Beaumont v The Marquis of Salis- 
bury 

Beck t; Bum 

Bedford, The Duke of, v Trustees 
of British Museum 

Beech t; Jones 

Beeton, Ex parte 

Bell V Hyde 

Bell V Jackson 

Bell, Scott V 

Bell, Tindall v 

Bellamy v Sabine 

Bennett V Bachelor ••. 

Bennett v Bernard ..< 

Bennett, Bullock v ... 

Bennett v Marshall ... 

Bentley, Sherratt v ... 

Benyon v Maddison ., 

Bernard, Bennett v ... 

Bernard v MinshuU ... 

Bemasconi v Atkinson 

Berry v Berry 

Biel, Hammersley v ... 

Biggs, Sadlier v 

Biggs V Ward 

Bignold, Bugden v . . 

Bignold V Giles 

BingHam, Duke of Portland v, Jfp. 13 

Bingham, Goodhill v... ... 271 

JBion, James v ... ... 495 



511 
47 
229 
457 
98 
481 
174 
516 
307 
100 
362 

495 

485 



... 138 
... 58 
... 415 
... 275 
... 844 

123, 130 
... 58 
... 268 
... 142 
... 268 
...490 
... 362 

426, 428 

... 494 

... 268 

219, 223, 227 

362, 364 
... 165 
... 189 
... 32 
... 218 
...350 

206, 211 



Birch V Wade 


... 340 


Birkhead, Doe d. Clift v 


... 156 


Bishop, Cox t; 


... 446 


Bishop, Davenport 9... 


130, 196 


Bishop, Grace v .^ 


... 404 


Black, Willis V 


183, 190 


Blackford v Long 


... 426 


Blackmore 9 Ince 


... 339 


Blackstone, Ex parte... 


... 410 


Blackwell v England 


283, 290 


Blades v Arundale ... 


... 457 


Blagrave v Routh ... 


325, 326 


Blake, Darcy v 


... 54 


Blake v French 


... 123 


Blakely v Smith 


...511 


Bliss, Dean of Ely v ... 


305, 308 


Bliss V Woods 


Jpp. 11 


Bloomfield, Daly v ... 


... 305 


Blundell, Camoys v ... 


862, 365 


Boddington, Witts v ... 


... 340 


Boles, Brandon v 


199, 203, 204 


Bolton, Brennan v ... 


... 512 


Bolton, Townly v 


...206 


Bonnaker v Evans ... 


App. 38 


Bott, Lawes v 


... 68 


Bourke v Murray 


... 67 


Bourne, Dawson v ... 


... 120 


Boutell, Boublat t; ... 


... 290 


Bouverie t; Bouverie... 


... 484 


Bowman t; Taylor ... 


... 55 


Bowyer, Curre v 


... 496 


Boyd V Robins 


... 60 


Boyd V Bobinson 


... 59 


Boyse v Cotelough ... 


... 387 


Bradbury, Ex parte ... 


... 440 


Bradford, Buffar v ... 


... 115 


Bradford v Roulston ... 


...511 


BradshAw v Bradshaw 


862, 364 


Bradstreet, Shannon v 


... 517 


Brady v Fitzgerald ... 


174, 178, 446, 




447, 451 


Brady, Nelson v 


213, 216 


Brandon v Boles 


192, 203, 204 



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TABLE OF CASES CITED. 



m 



Branham v Ringrose 


... 484 


Brathwaity Lampleigh v 


... 58 


Brawn, Doe v 


... 456 


Breaiy, Boundell v ... 


... 132 


Brennan v Bolton ... 


... 512 


Brereton v Barry 


... 98 


Bretz, Fickard v 


... 359 


Briggs V Penny 


219, 226, 426 


Brisick v Manners ••• 


199, 204 


British Museum, Trustees of, The 


Duke of Bedford v 


... 138 


Britton v Twig 


... 375 


Brook, Cobbett v ... 


... 16 


Brown, Grreville v ... 


... 26 


Brown v Higgs 


... 840 


Brown v The Marquis of Sligo ... 79 


Browne t; Coote and others ... 215 


Browne, Doe v 


... 464 


Browne v Fitzpatrick and others 214 


Browne, Potts v 


... 386 


Browne, Probyn v ... 


... 385 


Browne v Spenoe 


App. 27, 28 


Browne's Trusts 


... 426 


Brownrigg, Campbell v 


... 389 


Bruce, Ex parte 


199, 200, 204 


Buchanan, Smith v ... 


... 885 


Buck, StronghiU v ... 


... 100 


Buffur V Bradford ... 


... 115 


Bugden v Bignold ... 


... 350 


BuDer, Carpenter v .. 


... 100 


Bullock V Bennett ... 


... 490 


Bulteel, Ex parte ... 


200, 203 


Bumford, Ball v 


... 128 


Burke a minor, In re 


... 27 


Burke, OTay v 


... 109 


Bum, Beck v 


... 485 


Burnett, M'Donnell v 


... 259 


Burrough v Philcox ... 


... 340 


Burton v Fitzsimon ... 


...259 


Bushby, Stockdale v 


... 362 


Bushell V Bushell ... 


... 280 


Busk, Addison v 


156, 160, 161 


Busk, Lee o 


160, 162 



Bustard V Saunders ... ... 115 

Bute, Marquis of, v Conyngham ... 439 
Butler V Portarlington 96, 259 

Butterfield V Heath ... ...123 

Cadogan, Wright v ... ... 272 

CalcraftvWest ... ... 40 

Callender, Wright v ... 439 

Cammell v Sewell ... ... 387 

Camoys v Blundell ... 362, 365 

Campbell v Brownrigg ... 339 

Campbell, Smith v ... ... 362 

Canterbury, Archbishop of, and 
Bishop of London, The King v 

App. 41 
Carberry v Cox ... 48, 46 

Carey, Creed v ... ... 132 

Carlisle, The Earl of, Lechmere v 132 
Carpenter V BuUer ... ... 100 

Carr, HoUis v ... ... 183 

Carr v Marsh ... App. 86 

Carter, Parker « ... ... 123 

Cartwright, Doyne v ... 156 

Casamajor v Pearson ... 439 

Casselis, Kennedy v ... ... 886 

Cassidy, Ex parte ... 410, 411 

CatoroCator ... ...115 

Caulfield, Ex parte ... 413,416 

Chambers, Gates v ... App. 23, 29 
Chambers v Goldwin 825, 326 

Chaplin v Chaplin ... ... 142 

Chapman, Maddison v ... 426 

Charlesworth, Malcolms v ... 268 

Charlton, Doe d. Burren v ... 376 

Charlton v Driver ... ... 503 

Chinnery, Muskerry v ... 130 

Chitty, Williams v ... 143, 144 

Cholmondeley, Fitzgerald « 314 

Cholmondeley, Pitt v ...326 

Cholmondely, Walpole v ... 247 

ChurchiU V Dibben ... 270,273 

Clarendon, M'Auley v ... 219 

Clarke, Dawson v ... 219, 227 

Clarke, Mason « ... 1 16, 1 16, 121 



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tabu: of cases cited. 



79 
230 



43,47 
... 123 
...227 
... 16 
...485 
...387 
... 456 
456, 457t ^6b 
... 404 
... 518 
165, 169 
... 86 
... 130 
...496 
••. 58 
268, 269 



Clarke v Moore 
Cleghom, Moore v .< 
Clements, Scott v 
(Sergy Society, In re 
Clerk V Nettleship .. 
. Clowea, Russell v 
Cobbett V Brook 
Cock, Matchwick V . 
Coldoagh, Boyse « . 
G^ Taylor v 
Coleman v BawUnson 
Collard, Lewis « 
Collen 9 Gmrdiner 
CoUetOQ V Grarth 
Collios V Plumb 
OoDyear v Mulgrave 
Oolmore 9 Tyodall . 
Oompion, Smith o 
Condon, Walcott v . 
Con^, Smith v 
Conyngham, Marquis of Bute v ... 439 
Cooke, Idle v ... ... 376 

Cooke, Norris v •.. «.. 511 

Cooper, Aldrich p ... 348, 351, 352 
Copier 9 Cooper ... ... 426 

Cooper, Sparrow «... .^.. 138 

Ooote and others, Browse « ... 215 
Coj^er-miners Company, Wood v 183 
Coppin, Dillon V ... ...189 

Corbett's Trusts, Be ... 843 

GomwaU, In re ... ... 350 

Cosby V Lord Arirtown 476, 480 

Coventry v Coventry ... 132 

CoKV Bishop ... *.. 446 

Oox, Carberry v ... 48, 46 

Cox, Qrigbyr . ... 271,275 

Cox, Hewer v ... ... 359 

CoK,Woodo ... ...219 

Crawford, Gray v ... ... 213 

Ckawford v Trotter ... 116, 120 

Creed* Carey ... ...132 

Creed, Schreier v ... ... 35 

Cranan « Hawkes 174, 446, 447, 451 



Creswick v Bokeby ... App. 25, 29 

Crockett v Crockett ... 115, 120, 121 

Crofts V Feuge ••• 132, 135 

Crosbie, Gilman v ... ... 511 

Crosbie v Murphy 281, 290, 358, 898, 

399 

Crosbie, Stoughton v 99, 100, 512 

Crosbie, Sugrue v ... ... 305 

Crossling v Crossling ... 340 

Crowley's case ... ... 415 

Cnlliford, Westcott tr ... 184 

Cumming, In re ... 432, 435 

Carre v Bowyer ... ... 496 

Carrie v Nind ... ... 128 

Curtis V Curds ... ••• 54 

Curtis, Johnson v ... 314, 324 

Curtis V Price ... ... 495 

Custance, Holmes v ... ... 362 

Daly V Bloomfield ... ... 805 

Darbon v Rickards ... ... 439 

Darcy v Blake ... ... 54 

Darthez v Lee ... ... 315 

Davenport v Bishop 1 30, 196 

Davis V G^u'diner ... ... 25 

Davis V Hone ... ... 503 

Davis, Selkrig v 385, 887, 391 

Davoren, Day t; ... ... 430 

Dawding, Bippon v ... . ... 272 

Dawson v Bourne ... ••• 120 

Dawson v Clarke ... 219, 227 

Dawson v Dawson ... 314, 824 

Dawson, Stocken v ... .., 509 

Day V Davoren ... ... 480 

Dean, Stocker v ... ... 138 

Deane, Rex v ... .«. 456 

Dedue, Fremoult v ... 132, 134 

Delmare v Bobello ... ... 362 

De Medina t; Grove ... ... 387 

De Mdeyns, Joyce v ... 17 
Denison, Druce v 165, 169, 170, 171 

De Bode, Re ... ... 247 

De Vitre, Jeflfrey v 116, 120, 121 
Devondnre, Duke of, v Eglin 35, 37 



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TABLE OF CASES CITED. 



De Witte o De Witte 




... 115 


Doffield V Doffield ... 


... 4sf4 


DibbeD, Churchill v ... 




207, 273 


Duignan, Harrison v... 


... 447 


Diggee, Flock v 


174 


, 305, 807 


Dummer v Pitcher . . . 


... 476 


Dillpn V Coppin 




... 476 


Dunbar t; Tredennick 


... 100 


DUlon, Hodflon v 


App. 


36, 37, 39 


Dunn, Maclean v 


...511 


Dillon « Parker 




... 476 


Dwyer, Trant v 


... 79 


Ditchfield, Francis « ... 




... 428 


Easum v Appleford ... 


... 428 


Dodd, Hine v 




... 512 


Edge V Worthington... 


199, 203, 204 


Dodgson, Johnson v ... 




...511 


Edmeades, Pearce v ... 


...206 


Doe V Brawn 




.;. 456 


Edmonds, Proeser v ... 


... 92 


Doe V Browne 




...464 


Egan V Morris 


... 164 



Doe V Douston ... 456, 464 

Dee V Huthwaite ... 364, 365 

Doe V Jones ... ••• 464 

Doe V Laming ... ... 375 

Doe « Milborne ... ...101 

Doe V Bawlings ... ... 94 

Doe o Wilton ... ... 164 

Doe d. Baoiford V Hayky ...138 

Doe d. Burren v Charlton ... 875 

Doe d. Burton « White ...484 

Doe d. Clift v Birkbead ... 156 

Doe d. Freeman v Bateman ... 807 

Doe d. Grains 9 Rouse ...362 

Doe d. Phillips v Bawlings ••• 80 

Doe d. Phipps v Boiling ... 259 

Doe d. Stephens v Scott 271, 275 
Doe d. Westmoreland v Smith ... 456 

Doaner t; Fortescue ... ... 54 

Dorrton, Holliday v ... ... 229 

Douglas, Hardwicke v 426, 431 

Douglas, WiUis v ... ... 206 

Douston, Doe v ... 456, 464 

Down V Down ... ... 496 

DowDiog, Ex parte ••• ... 410 

Doyne v Cartwright ... ... 156 

Drew 9 Eellick ... ... 206 

Drew V Lord Norbury 519, 520 

Drew 9 Power ... 314, 325 

Driller, .Charlton V ... ...508 

Druce 9 Denison 165, 169, 170, 171 

Dnice, Reimers 9 ... ••• 886 

Drury, Williams 9 ... ,.. 404 



Eglin, Duke of Devonshire 9 35, 37 

Elcock, Mapp 9 ... ... 227 

EUis, Grant 9 ... 804, 306 

Ellis, Knight 9 ... ... 375 

Eij, Dean of, v Bliss... 305, 398 

Emery « Mucklow ... ... 68 

England, Blackwell 9... 283, 290 

Evans, Bonnaker 9 ... -^^PP' 38 

Evans, Johnson « ... ... 457 

Evans 9 Bees ... ... 415 

Exeter, The Bishop of, Southcome 9 

79, 80 

Ex parte Arnold ... ... 404 

Ex parte Bardwell ... ... 415 

Ex parte Beeton ... ... 414 

Ex parte Blackstone ..* ... 410 

Ex parte Bradbury ... ... 410 

Ex parte Bruce ... 199, 200, 204 

Ex parte Bulteel ... 200, 208 

Ex parte Cassidy ... 410, 411 

Ex parte Caulfield ... 413, 415 

Ex parte Downing ... ... 410 

Ex parte Fitzhenry ... ... 410 

Ex parte Hickie ... ... 410 

Ex parte Hooper ... 199, 203, 204 

Ex purte Isaac ... ••• 414 

Ex parte Kendall ... ... 848 

Ex parte Langhome ... ... 414 

Ex parte Lee ... ... 410 

Ex parte Legge ... 412, 414 

Ex purte M'Gee ... ... 415 

Ex parte Martin ... ... 410 



Digitized by 



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VI 



TABLE OF CASES CITED. 



Ex parte MiUer ... 413, 414, 415 
Ez parte Nolan ... ... 413 

Ex parte OUver ... 410,412,415 
Ex parte Pearse and Protheroe 

199, 203, 204 
Ex parte Bamsden ... ... 440 

Ex parte Rogers ... 160, 161, 162 
Ex parte Stokes ... ... 415 

Ex parte Yogel ... ... 414 

Ex parte Ward ... ... 410 

Eyre v Marsden ... ... 340 

Eyre v Monro ... 184, 191 

Fair, Acheson v ... ... 426 

Farmer v Mills ... ... 439 

Farrell v Hildridge ... ... 184 

Fell, Beaumont v ... ... 362 

Feltham's Trusts, In re 862, 366, 367 
Ferrall, In re ... ... 290 

Fenge, Crofts v ... 132, 135 

Field V Moore ... ... 271 

Finch V Harris ... 4/^* ^^ 

Findon v Findon ... ... 339 

Fisher v Fisher ... 143, 145 

Fitzgerald, Brady v » 174, 178, 446, 

447, 451 
Fitzgerald v Cholmondeley ... 314 

Fitzgerald v O'Connell ... 259 

Fitzgerald, Be ... ... 358 

Fitzgerald's Estate, In re 290, 294 

Fitzhenry, Ex parte ... ... 410 

Fitzmaurice v Sadlier 99, 123 

Fitzpatrick & others, Browne v ... 214 
Fitzpatrick, Enaresboroagh v ... 426 
Fitzpatrick, Watson v ... 215 

Fitzsimon, Burton v ... ... 259 

Flack, Owen v ... ... 495 

Florence, Taplin v ... ... 39 

Flnester t; M'Clennan ... 404 

Fonblangue t; Lee 281, 282, 286, 859 
Forbes v Ball ... ... 340 

Forbes, Jackson t; ... ... 340 

Fortescne, Dormer v .•• ... 54 

Foxley'scase ... ...414 



Francis v Ditchfield ... 


... 428 


Frankfort V Thorpe ... 


... 503 


Freeland v Neal 


Jpp. 36, 88 


Fremoult v Dedire ... 


132, 134 


French, Blake V 


... 123 


French r French 


... 116 


Froggart, Sacheverell v 


... 137 


FuUbrooke, Hill e ... 


... 265 


Furnival, Alison v ... 


...385 


Garcias, Ricardo v ... 


... 387 


Gardiner, CoUen v ... 


...518 


Gardiner, Davis v ... 


... 25 


Gardiner, Stringer v.. . 


... 362 


Gardiner v Townsend 


... 132 


Garrard v Tuck 


... 55 


Garratt v Niblock ... 


... 485 


Garth, Colleton v 


166, 169 


Gastrel « Jones 


Jpp. 11 


Crates V Chambers ... 


App. 23, 29 


Geddington, The King v 


... 517 


Geering, Weatherall v 


... 137 


Geoi'ge, Andre wes v ... 


... 184 


Gibson v Seagrim 


348, 351 


Gibson, Whatman v ... 


35, 138 


Giles, Bignold v 


206,211 


Giles V Grover 


... 457 


Oilman v Crosbie 


... 511 



Gladstone, Office v App. 36, 38, 39 

Glazier, Goodrigh t v... ... 247 

Glynn, Harding v ... ... 340 

Gt>dolphin, Marlborough v ... 840 

Gxklson, Holmes v ... ... 481 

Godson V Sanctuary ... ... 457 

Gliding, Attorney-General v ... 43 

Gx>ldwin, Chambers v 325, 826 

Grolton V Handcock ... ...142 

Gomme, Hill e ... ... 130 

Gompertz v Gompertz 840, 343 

Goodhill V Bingham ... ... 271 

Groodlittle, d. Peake v Pegden ... 375 

G-oodright v Glazier ... ... 247 

Goodright v Moses ... ... 123 

Gtx)dyear, In re ... ... 357 



Digitized by 



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TABLE OF CASES CITED. 



Vll 



Grordon v Whieldon 
Gronnan, Hill v 
Gorman, Taylor v 
GosUing, Baker v 
Grough, Osborne v 
Grace v Bishop 



... 115 

... 130 

213, 216 

... 174 

... 284 
... 404 



Granbj, Marquis of, Earl of Nor- 
thumberland V ... ... 475 

Grant e Ellis ... 304, 306 

Grares v Holland ••• ... 156 

Gray v Crawford ... ... 213 

Gray v Minnethorpe ... ... 814 

Gray v Pearson 21 1, 212, 442, 492 

Gray, Ward v 115, 118, 121, 122 

Greenshields, Bamhart v •••611 

Gregg, Office v ... App. 36, 38 

Gregory, M*CiiUoch v 496, 601 

Greville v Brown ... ... 26 

GrigbyrCox ... 271,276 

Grove, De Medina v ... ... 887 

Grover, Giles v ... ... 467 

Gummoe v Howes ... ... 376 

Gurly V Gurly ... 165, 170, 171 

Gurly, Morgan v ... 79, 80, 96 

. Hadland's case ... ... 415 

Halbard, In re ... 332, 336 

Hall, Johnston v ... ... 382 

Hall V Roche ... ... 467 

Hamilton v Hamilton ... 449 

Hamilton v Haughton ... 447 

Hamilton, Nixon v ... ... 99 

Hamilton v Eoyse ... ... 512 

Hammersley v Biel ... ... 189 

Hams, In re ... 389, 408 

Handcock, Golton v ... ... 142 

Handcock v Handcock 370, 371, 372 

Hannyngton, Wilcox v ... 271 

Harding v Glynn ... ... 340 

Hardwicke v Douglas 426, 431 

Hardwicke, Lord, v Vernon ... 814 

Harris, Finch e ... Jpp. 36 

Harris, Hethergill v ... ... 486 

Harris v Mott ... 271, 274 



Harrison v Duignan ... ... 447 

Harrison v Lawford ... ... 404 

Hartfort, In re ... 99, 100 

Hartley v OTlaherty 370, 378 

Haslope v Thome ... 282, 283 

Hassard, Newcomen v 271, 274 

Haughton, Hamilton v ... 447 

Hawker, Wickham v... ••• 39 
Hawkes, Cremen v 174, 446, 447, 461 

Hawksbee v Hawksbee ... 55 

Hayley, Doe d. Bainford v ... 138 

Hayley, Boe v ... ... 79 

Haylin, Taylor v ... ... 326 

Hayter, Barrett v ... ... 47 

Hayter t; Tregoe ... ••• 43 
Headford, Marqnb of, Yanghan v 116 

Heap V Tongue ... ... 123 

Heaphy v Hill ... 79, 80, 96 

Heath, Buttterfield v ... 123 

Heath v Perry ... ... 206 

Helps, Manning v ... ... 306 

Heneage, Meredith v ... ... 218 

Hertford, Marquis of, v Zichi ... 197 

Hervey v Hervey ... ... 99 

Hethergill « Harris ... ...486 

Heveningham v Heveningham ... 360 

Hewer v Cox ... ... 859 

Hewson v Myers ... ... 130 

Hickie, Ex parte ... ... 410 

Higgs, Brown v ... • ... 340 

Hildridge, Farrell v ... ... 184 

Hill V Fullbrooke ... ... 265 

Hill V Gromme ... ... 180 

HillvGrorman ... ...180 

Hill, Heaphy v ... 79, 80, 96 

Hillary v Waller ... ... 447 

Hillcoat, Moisey 9 ... j^. 11 
Hinds, Martin v ... App. 30, 88 

HinevDodd ... ...612 

Hockley v Bantock ... 199, 204 

Hodder, Shannon v ... ... 305 

Hodges, Wilson v ... ... 449 

Hodgson V Hutchinson ... 183 



Digitized by 



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Tin 



TABLE OF CASES CITED. 



Hodson V Dillon -^^^^ 


36, 37, 39 


In re Ferrall 


... 


... 290 


Holland, Graves v ... 




... 156 


In re Fitzgerald's Estate 


290,294 


Hdliday v Dorrton ... 




...229 


In re Goodyear 


... 


... 357 


Hollis V Carr 




... 183 


In re Halburd 


... 


332,335 


Holntes t; Castance . . . 




... 362 


In re Hams 


... 


898, 403 


Holmes v Godson 




... 481 


In re Hartfort 


... 


99, 100 


Holmes v Bemnon ••• 




... Soi 


In re Hughes 


... 


... 332 


Holmes, Swan v 




... 206 


In re Kelly 


... 


19,26 


Hdt V Holt 




... 100 


In re Keilly 


... 


348, 350 


Hone, Davis V 




... 503 


In re Keen 


... 


70,71 


Hooper, Ex parte ... 


199, 


, 203, 204 


In re Lord 


... 


... 410 


Horn, Aadsley v 115, 


118, 


119.120, 


In re Low's Estate 


... 


...268 






121, 122 


In re M'Netle 


... 


77, 82, 84 


Horner^ Mayor of Kingston-! 


upon- 


In re Nolan 


... 


...410 


UuMv 




... 447 


In re Philips 


... 


...525 


Honsin « Barron 




... 457 


In re Pj11« 


... 


.^414 


How, Jones v 


183, 192, 193 


In re Bogers 


... 


... 422 


Howes, Gummoe v ... 




... 875 


la re Smith and Ross 


357, 360 


Hoyte V Thompson ... 




386, 387 


In re Stokes 


... 


... 414 


Hubbard t; Ljster ... 




... 15 


In re Tipping's Estate 


... 174 


Hughes, In re 




...332 


In re Wynch's Trusts 


... 375 


Hughes, Whitehead v 




... 68 


Ironmongers Company, Attorney- 


Hulme V Hulme 




...339 


General v 


... 


43,44 


Hulme V Tennant ... 




... 375 


Irving V Toung 


... 


... 314 


Hunt, Pfeilitzer v •.. 




...299 


Isaac, Ex parte 


... 


... 414 


Hunter v Kennedy ... 




...268 


Isaac, Richard v 


... 


...290 


Hunter, Phillips v ... 




...387 


Jack V M^Intyre 


... 


...496 


Hunter v Potts 




385,387 


Jack V M*Loughlen 


... 


...305 


Hurst, Attorney-Genera] 


[v 


43,45 


Jackson, Bell v 


... 


... 344 


Hutchinson, Hodgson v 




... 183 


Jackson v Forbes 


... 


... 340 


Huthwaite, Doe V ... 




364,365 


Jackson v Roe 


• a. 


... 15 


Hyde v Atkinson 




...350 


Jackson, Russell v 


... 


219, 224, 227 


Hyde, Bell v 




... 275 


Jackson v Saunders 




... 259 


Hyde t; Skinner 




... 79 


James v Bion 


... 


... 495 


Idle V Cooke 




... 375 


James' case 


... 


... 415 


Inoe, Blackmore v ... 




... 339 


James, Locke v 


... 


... 247 


Ince, Parker V 




... 61 


James v Rice 


... 


... 199 


Incorporated Society, Shiel v 


... 305 


James v Salter 


... 


305,306 


In re Burke a minor 




... 27 


Jeffrey v De Vitre 


... 


116, 120, 121 


In re Clergy Society 




43,47 


Jeffreys, Walker v 


... 


* 79,95 


In re Cornwall 




... 350 


Jeffrys 9 Jeffrys 


... 


... 129 


In re Cumming 




432, 435 


Jennings v Ward 


... 


...368 


In re Feltham's Trusts 


362, 366, 367 1 


Jesson V Wright 


... 


375, 376 



Digitized by 



Google 



TABLE OF CASES CITED. 



IX 



Johnson t; Curtis 


314, 324 


Johnson v Dodgson ... 


...511 


Johnscm v Evans 


... 457 


Johnston v Hall 


... 382 


Johnston v Webster ... 


... 520 


Joliand V Stainbridge 


... 512 


Jones, Adams v 


...364 


Jones, Beech v 


... 58 


Jones, Doe v 


... 464 


Jones, Gastrel V 


Aj^. li 


Jones V How 


183, 192, 198 


Jones V Jones 


... 603 


Jones 9 Kearney 


80,229 


Jones V Martin 


184, 191, 198 


Jones 9 Randall 


...206 


Jones V Smith 


...611 


Joyce V De Moleyns 


... 17 


Ealloway, Short v ... 


... do 


Kay V Kay 


... 206 


Keane, Momington v 


... 229 


Kearney, Jones v — 


80,229 


Kelly, Be 


348, 850 


Keity, Wright « 


... 214 


KeiUi, Trebec » 


Jpp.96 


Kellick, Drew v 


...206 


Kelly, In re 


19,26 


Kelly • KeUy 


28, 29, 214 


Kendall, Ex parte ... 


... 348 


Kennedy V Casselis ... 


... 886 


Kennedy, Hunter • ... 


...268 


Kennedy v Kingston 


... 340 


Kent V Stoney 


... 80 


Keen, In re . 


70,71 


Keppel V Bailey 


36, 88, 138 


K^ V Williams 


199,204 


Sadd, Milliken v ... 


... 123 


King, Sarory « 


...108 



King, The, v Archbbhop of Canter- 
bury and Bishop of London idlpp. 41 
King, The, v Geddington ... 517 

King, The, V Long Berrington ...517 
King, The, v Toddington «.. 517 

Cngston, Kennedy v ... 340 



Kingston-upon-HuU, Mayor of, v 
Homer ... ... 447 

Kingston's, Duchess of, case ... 386 
Ejrke v Kirke ... ... 247 

Kirkman's Trusts ... ... 494 

Knaresborough v Fitzpatrick ... 426 
KnatchbuU, Woodgate v ... 456 

Knight V Ellis ... ... 375 

Knight V Knight ... ... 218 

Knox, Wood v ... ... 259 

Lainson v Lainson ... ... 206 

Lambert v Lambert ... ... 382 

Laming, Doe v ... ... 375 

Lampleigh v Braithwait ... 58 

Lanauze t; Malone ... ^.. 24 

Lane V Page ... ...100 

Langham t; Sanford ... 426 

Langhome, Ex parte ... 414 

Langhome's case ... 410, 418 

Langley v Thomas 430 

Lansley, Major v ... ... 272 

Lassenoe v Tiemey 271, 339| 340, 342 
Law V Warren ... ... 123 

Lawes v Bott ... ... 68 

Lawford, Harrison v ... 404 

Leadbitter, Wood v ... 85, 38, 89 

Leak, Melling v ... ... 55 

Leake v Robinson ... ... 494 

Leapingwell, Page v ••• 49 

Lechmere v Earl of Carlisle ... 132 
Lee V Busk ... 160, 162 

Lee,Darthe2v ... ...315 

Lee, Ex parte ... ...410 

Lee, Fonblanque v 281, 282, 286, 359 
Leeming v Sherratt ... ... 840 

Lees V Massy ... ... 494 

Legge, Ex parte ... 412, 414 

Le Neve v Le Neye ... ••• 611 

Lewis V Collard ••• •*• 404 

Lewis V Peake ••• 58, 59 

Lewis V Bees 496, 497, 498, 601 

Lewis and another « Smith & Boss $99 
Lichfield, Ubich V ... 4M, 42d 



Digitized by 



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TABLE OF CASES CITED. 



LidwoU, £oe v ... ... 496 

Lightbome v WEyoj ... 99 

LillvLiU ... ...206 

Lister, liddv ... ...350 

Llojd, Pennell v ... •.. 387 

Locke V James ••. ... 247 

Logan V Wienholt ... 184, 190 

Long BerringtOD, The Ejog v ... 617 
Long, Blachford v ... ... 426 

Long V Long 94, 256, 257, 258, 262, 

263 
Lord, Li re ... ,.. 410 

liOscombe v Winteringham 43, 48 

Loveday's case 432, 438, 435, 436 

Lovegrove, Parr v ... ... 496 

Lovegrove, Smith v ... App. 36, 37 
Low's Estate ... ... 268 

Lncas, WUliams v ... ... 132 

Lyle V Earl of Yarborough ... 496 

Lymberry, Mason v ... ... 340 

Lyne v Lyne ... ... 265 

Lyster, Hubbard t; ... ... 16 

M'Anley v Ckrendon ... 219 

ATClennan, Fluester v ... 404 

M'Clintock, Walpole v ... 520 

M'Cttlloch V €rregory 496, 501 

HODermot v Wallace ... 206 

M'Dermott, Peyton v ... 216 

McDonnell v Burnett ... 259 

McDowell V Wheatley 281, 282, 286, 

290, 291, 293, 358, 397, 398, 399, 

400 
M'Evoy, Lightbume v ... 99 

M'Gee, Ex parte ... ... 416 

M'Lityre, Jack v ... ... 496 

M*Loughlen, Jack v ... 306 

M*Neale, Li re ... 77, 82, 84 

Maclean 9 Dunn ... ...511 

Maddison, Benyon v ... 494 

Maddison v Chapman ... 426 

Hagee 9 Townsend ... ... 339 

M^or p Barton ... ... 174 

ffajor 1^ Lansley ... ...272 



Malcolms v Charlesworth ... 268 

Malone, Lanauze v ... ... 24 

Mann v Stephens ... 35, 138 

Manners, Brisick v ... 199, 204 

Manning V Helps ... ...305 

Maples V Pepper ... ... 58 

Mapp V Elcock ... ... 227 

Marchant, Parker « ... ... 143 

Marchant, Roberts v 495, 500 

Marlborough v Godolphin ... 340 

Marriott, Raworth v ... 250 

Marsden, Eyre v ... ... 340 

Marsh, Carrv ... Jlpp. 36 

Marshall, Bennett v ... ...362 

Martin, Ex parte ... ... 410 

Martin v Hinds ... App, 30, 38 

Martin, Jones t; ... 184, 191, 198 

Mason vClarke ... 115, 116, 121 

Mason v Lymberry ... ... 340 

Massy V Batwell ... ...100 

Massy, Lees v ... ... 494 

Massy vO'Dell ... 173,179 

Match wick v Cock ... ... 485 

Mather, Re ... ... 415 

Melling v Leak ... ... 55 

Meredith v Heneage ... 218 

Messenger v Andrews ... 475 
Metcalf V The Airchbishop of York 229, 

230 

Meux, Baggott v ... 271, 272, 276 

Milbome, Doe v ... ... 101 

Mildmay v Smith ... ... 457 

Miller, Ex parte ... 413, 414, 415 

Miller v Scare ... ... 410 

Miller's case ... ...415 

Milliken v Eidd ... ... 123 

Mills, Farmer v ... ... 439 

Milman, Morgan v ... ... 517 

Miltown, Earl of, v Stewart ... 450 

Minnethorpe, Gray v ... 314 

Minshull, Bernard v 219, 223, 227 

Mitchfijl, Steele v ... 99, 100 

Mitford V Wicken ... 426, 430 



Digitized by 



Google 



TABLE OF CASES CITED. 



11 



Moisej V HiUeoat ... 


App.n 


Nelms, Anster v 


... 56 


Molonj V ScoUard ... 


603, 507, 509 


Nelson v Brady 


213, 216 


Monck, Peacock v ... 


270, 273 


Nettlesbip, Clarke v ... 


... 123 


Monk V Sharp 


... 404 


Newbolt V Pryce 


862, 367 


Moore, Clarke v 


... 79 


Newcomen v Hassard 


271, 274 


Moore v Clegbom 


... 230 


Niblock, Garratt v ... 


... 486 


Moore, Field v 


... 271 


Nind, Currie v 


... 128 


Moore v Morris 


... 271 


Nixon V Hamilton ... 


... 99 


Moore, Orpen v 


516,517 


Nixon, Office v 


dpp. 86, 88, 42 


Morgan v Gnrly 


79, 80, 96 


Nixon, Scott v 


64,66 


Morgan v Milman ... 


... 517 


Nolan, Ex parte 


... 418 


Momington v Keane... 


... 229 


Nolan, In re 


... 410 


Morrall t; Sutton 


... 426 


Norbury, Lord, Drew v 


619, 520 


Morris, Egan v 


... 164 


Norris' case 


... 415 


Morris, Moore v 


... 271 


Norris v Cooke 


...611 


Morris v Morris 


... 274 


Norris v Wilkinson ... 


199, 203, 204 




...266 


Northern Banking Company v Ro- 


Morse v Morse 


115, 116, 120 


binson 


... 389 


Morton, Office v 


App. 36 


Northumberland, Earl of 


f V Marquis 


Moses, Goodright v ... 


... 123 


ofGranby 


... 476 


Mostyn, Townsend «... 


...512 


Norton v Turvill 


... 276 


Mott, Harris v 


271, 274 


Nott V Biccard 


... 496 


Moxhay, Tulk v 


35, 87, 138 


O'Brien, Roche v 


... 100 


Mucklow, Emery v ... 


... 68 


aConnell, Fitzgerald v 


...259 


Mulgraye, CoUyear v 


... 180 


O'DeU, Massy V 


173, 179 


Mundy v Mundy 


... 64 


aFayt; Burke 


... 109 


Munkittrick, Bidgeway t 


f ... 116 


Office V Gladstone ... 


App. 36, 38, 39 


Munro, Eyre v 


184, 191 


Office V Gregg 


App. 86, 88 


Mnrphy, Crosbie v ... 


281, 290, 868, 


Office V Morton 


App. 36 




398, 899 


Office V Neal 


App. 37 


Murphy, Smyth v ... 


... 213 


Office V Nixon 


j^. 86, 38 


Mnrphy, Stevelly v ... 


... 178 


O'Flaherty, Hartley v 


870, 378 


Murray v Archbishop of Armagh 


Oliver, Ex parte 


310, 412, 416 




Jpp. 41 


Onions v Tyrer 


...247 


Murray, Bourke v ... 


... 67 


Ordich, Wood v 


143, 144 


Murray v Palmer 


... 100 


O^ReiUy, Re 


... 339 


Murtagh e Tisdall ... 


... 268 


Orpen 9 Moore 


616, 617 


MusgroYC, Playfeir » 


456, 464 


Osborne, Barlow v .. . 


... 230 


Muskerry e Chinnery 


... 130 


Osborne v Gough 


... 284 


Myers, Hewson t; 


... 130 


Owen V Flack 


...495 


Naish, Tourville v ... 


151, 152 


Page, Lane v 


... 100 


Neal, Freeland V 


App. 36, 38 


Page V Leapingwell ... 


•... 49 


Neal, Office v 


App. 37 


Paine V Wagner 


... 116 



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TABLE OF CASES CITED. 



Palmer, Murray v 




... 100 


Parker v Carter 




... 123 


Parker, DiUon v 




... 476 


Parker v Ince 




... 61 


Parker p Marchant 




... 143 


Parker v Smith 




... 612 


Parkin v Thorold 




...495 


Parr v Lovegrove 




...496 


Patten v Ponlton 




... 247 


Patton, Wallace v 




...259 


Payne 9 Trappes 




... 247 


Peacock v Monck 




270, 273 


Peake, Lewis v 




58,59 


Pearce v Edmeades 




...206 



Pearse & Protheroe, Ex fMurte 199, 203, 

204 
Pearson, Casamigor v ... 439 

Pearson, Gray v 2 1 1, 212, 442, 492 
Pegden, Goodlittle d. Peake « ... 375 
Pennell v Lloyd ... ... 387 

Penny, Briggs v ... 219, 226, 426 
P^per, Maples v ... ••• 58 

Perkins, Lord Bandcliff 9 ^.476 

Parrott v Perrott ... 247, 250 

Ferrotfs case ... 412, 413, 418 

Perry, Heath v ... ... 206 

Peters, Usticke v ... 476, 480 

Peytai 9 M'Dermott... ... 216 

Pfeilitaer 9 Hunt ... ... 299 

Philoox, Burrongh 9 ... ... 340 

PhiKpe, In re ... ... 525 

PhilUps 9 Hunter ... ... 887 

Pickard 9 Bretz ... 359 

Pierce 9 Williams ... ... 58 

PiUer, Inre ••• .••414 

Pinchard's Trust ... 218, 219 

Pitcher, Dnmmer v ... ... 476 

PiU 9 Cholmondeley... ... 325 

Plestero, Abraham 9 ... ... 386 

Pluck 9 Digges ... 174, 305, 307 
Plnmb, Collins 9 ... ... 36 

Play&k V Mnsgrove... 456, 464 

Fopham 9 Baldwin ... 512, 516 



Portariington, Botler 9 96, 259 

Portland, Dnke of^ 9 Bingham Jpp. 13 

Potter 9 Browne ... ... 385 

Potts, Hunter 9 ... 385, 387 

Poulden, Attorney-General « ... 438 

PonUqn, Patten 9 ... ... 247 

Powell V Thomas ... ... 35 

Power 9 Bailey . . . 272, 275 

Power, Drew 9 ... 314, 325 

Price, Curtis 9 ... ... 495 

Probyn 9 Browne ... ... 385 

Pressor 9 Edmonds ... ... 92 

Pryce, Newbolt 9 ... 362, 367 

Pulvertoft 9 Pulvertoft .•. 123 

Pybus 9 Smith ... 271, 275 

Bacster, Barnes 9 346, 348, a49i 350, 

851, 352, 353, 354, 355 

Badford 9 Southern ... ••• 496 

Ramaden, Ex parte ... ••• 410 

Randall, Jones 9 ... ..* 206 

Randall 9 Willis ... ... 184 

Randcliff, Lord, 9 Perkins ... 457 

Raodfield 9 Randfield ... 426 
Ranelagh 9 Ranelagh 156, 159, 162 

Bawlings, Doe 9 •.. ... 94 

Rawlings, Doe d. Phillips 9 ... 80 
Rawlinson, Coleman 9 456, 457, 465 

Baiworth 9 Marriott ... ... 250 

RM V Steadman ... ... 227 

Read, West V ... ...511 

Re Applebee ... ... 247 

Re Corbett's Trusts ... ... 343 

Re De Rode ... ...247 

Rees, Evans 9 ... ... 415 

Rees, Lewis 9 496, 497, 498, j501 

Re Fitzgerald ... ... 358 

Reid, Wilson 9 ... ... 95 

Reignolds, Turton 9 ... Jpp. 13 

Reimers 9 Druce ... ..« 386 

ReKeiUy ... 348,350 

Re Mather ... ... 415 

Renmon, Holmes v ... ... 387 

Be O'Bfeilly ... ... 339 



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TABLE OF CASES CITED. 



xui 



Bestall, Sparks V 


166, 160, 161 


Bex V Deane 


...466 


Bex V Walters 


... 416 


Reynolds v Waring ... 


... 612 


Bhodes v Rhodes 


... 158 


Rieardo v Grarcias ... 


... 387 


Riccard, Nott v 


...496 


Rice, James v 


...199 


Richard t; Isaac 


... 290 


Rickards, Darbon v ... 


...439 


Ridgeway v Monkittrick 


... 116 


Ridg^way v Wharton 


... 618 


Ringrose v Branham ... 


... 484 


Rippon V Dawding *.. 


...272 


Robello, Delmare v ... 


... 862 


Roberts v Marchant ... 


496,500 


Rabins, Boyd v 


... 60 


Robinson, Boyd v 


... 59 


-Robinson, Leake v ••• 


... 494 



Robinson, The Northern Banking 

Company 9 ... -. 389 

Roche, Hall V ... ...467 

Roche V O'Brien ..* ... 100 

Roe V Hayley ... ... 79 

Roe, Jackson v ••• ... 15 

Roe V LidweU ... ... 496 

Rogers, Ex parte ... 160, 161, 162 

Rogers, In re ... ... 422 

Rc^Lcby, Creswick v ... App. 26, 29 

Bollmgj Doe d. Phipps v ... 259 

Boublot V Boutell ... ... 290 

Bonlston, Bradford v.«. ... 511 

Bonndell v Breary ... ... 132 

Beoae, Doe d. Gains v ... 362 

Bontb, Blagrave v ... 826, 326 
Soyal Bank of Scotland 9 Stein ...387 

Boyse, Hamilton v ... ... 612 

Busd V Rnsael ... 199, 203, 204 

Bwsett V Clowes ... ... 2^ 

Bflssell V Jackson ... 219, 224, 227 

Sabine, Bellamy v ... ... 268 

SachevereU o Froggart ... 137 

Sadleir, Fitzmaurice v ... 99> 128 



Sadleir, Watson v ... ... 182 

Sadlier o Biggs ... ... 32 

Salisbury, The Marquis of,, Beau- 
mont V ... ... 495 

Salmond, Scott v ... ... 439 

Salter, James v ... 306, 306 

Sanctuary, Gbdson v ... ... 467 

Sanford, Langham v ... ... 426 

Saunders, Bustard v ... ... 116 

Saunders, Jackson v ... ... 269 

Savory « King ... ...108 

Scholfield V Templar ... 15, 16 

Schreier v Creed ... ... 36 

Scollard, Molony v ... 503, 507, 609 

Soott « Bargeman ... ...166 

Scott V Bell ... 123,130 

Scott V Clements ... ... 26 

Scott, Doe d. Stephen 9 271, 276 

Scott f^ Nixon ... 64, 66 

Seott V Salmond ... ... 439 

Seagrim, Gibson v ... 348, 361 

Scare, Miller ir ... ...410 

Selkrig v Davis ... 385, 387, 301 

Sdl V Woswick ... .J. 887 

Sewell, Commell 9 ... ... 387 

Shannon t; Bradstreel ... 617 

Shannon v Hodder ... ... 806 

Shannon, Smith ... 78, 91 

Sharps Monk v ... ... 404 

Sheffield Gas Consumers Company, 

Attorney-General v ... 86 

SherraU v Bentley ... 426, 428 

Shenratt, Leeming v ... ... 340 

Shiel V Incorporated Society ... 305 

Shippardson v Tower ... 425 

Short d. Gastrell v Smith ... 247 

Short V Ealloway ... ... 58 

Short, Tickel v ... 814, 316 

Skinner, Hyde v ... ... 79 

Slatter r Slatter ... ...169 

Slig<^ The Marquis of, Brown 9 79 

Smith, Blakely V ... ...611 

Smith V Budlanan ... ... 886 



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ZIV 



TABLE OF CASES CITED. 



Smith « Campbell ... 


... 362 


Stibbert, Taylor v 




511,512 


Smith V Compton 


... 58 


Stockdale v Busby 




... 362 


Smith t; Coney 


... 362 


Stocken v Dawson 




... 509 


Smith, Doe d. Westmoreland t; ... 456 


Stocker v Dean 




... 138 


Smith, Jones v 


...511 


Stokes, £z parte 




...415 


Smith V Lovegrove . . . 


Jpp. 36, 37 


Stokes, In re 




...414 


Smith, Mildmay v ... 


... 457 


Stoney, Kent v 




... 80 


Smith, Parker v 


... 512 


Stoughton V Crosbie 




99, 100, 512 


Smith, Pybus v 


271, 275 


Strickland v Aldridge 


... 224 


Smith & Boss, In re ... 


857, 360 


Stringer v Gardiner 


... 


... 362 


Smith & Boss, Lewis & another v 399 


Stronghill v Buck 


.«• 


... 100 


Smith V Shannon 


78,91 


Stupart V Arrowsmith 


... 314 


Smith, Short d. Gastrell v 


... 247 


Sugden, Stelfox v 


••« 


... 439 


Smith V Smith 


180, 512 


Sugrue, Crosbie v 


... 


...305 


Smith, Wheeler v ... 


... 218 


Sumner v Thorpe 


... 


... 315 


Smyth V Murphy 


... 213 


Sutton, Mofrall v 


... 


... 426 


Snow, Steward v 


... 247 


Sutton V Tone 


... 


... 115 


Snow, Wilbraham v ... 


... 457 


Swan V Holmes 


... 


... 206 


Soames © Spencer ... 


... 511 


Taplin v Florence 


... 


... 39 


Southcome t; The Bishop of Exeter 79, 


Taylor, Bowman v 


... 


... 55 




80 


Taylor v Cole 


... 


... 456 


Southern, Badford v ... 


... 496 


Taylor v Gorman 


... 


218, 216 


Sparkes t; Bestall ... 


156, 160, 161 


Taylor v Haylin 


... 


... 325 


Sparrow V Cooper ... 


... 138 


Templar, Scholfield 


u .. 


15,16 


Spence, Browne v ... 


Jpp. 27, 28 


Taylor v Stibbert 


... 


511,512 


Spencer, Soames v ... 


...511 


Taylor v Waters 


... 


38,39 


Spencer's case 


... 78 


Taylor v Watson 


..-. 


... 35 


Spicer v Todd 


... 68 


Tebbs, Walgrave v 


... 


... 219 


Spooner v Weyman ... 


... 200 


Tennant, Hulme v 


... 


... 275 


Spooner's Trusts 


426, 428 


Thick, Balls v 


... 


... 467 


Squire, Wilson v 


... 49 


Thomas, Langley v 


... 


... 480 


Stainbridge, Jolland v 


... 512 


Thomas, Powell v 


... 


... 35 


Standen v Standen ... 


... 362 


Thomond, Wilson v 


... 


...611 


Staunton v Vemey ... 


... 17 


Thompson, Hoyte v 


••• 


386, 387 


Stead V Wilson 


... 276 


Thome, Haslope v 


••• 


282, 283 


Steadman, Bead v ... 


... 227 


Thorold, Parkin v 


... 


... 495 


Steele v Mitchell 


99, 100 


Thorpe, Frankfort v 


... 


... 503 


Stein, Boyal Bank of Scotland t; 387 


Thorpe, Sumner v 


... 


... 315 


Stelfox t; Sugden 


... 439 


Tickel V Short 


••• 


314, 315 


Stephens, Mann v 


35, 138 


Tidd t; Lister 


... 


... 360 


Stevelly v Murphy ... 


... 178 


Tiemey, Lassence v 


271, 


339,340,342 


Steward v Snow 


... 247 


Timmins, Morris v 


... 


...265 


Stewart, Earl of Miltown 


V ... 450 


Tindall v Bell 


... 


... 58 



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TABLE OF CASES CITED. 



X7 



Tipping V Aokerslej 


382, 383 


Walcott V Condon ... 


268, 269 


Tipping's Estate, In re 


... 174 


Walgrave v Tebbs ... 


... 219 


TisdaU, Mnrtagh V ... 


... 268 


Walker v Jeffreys 


79,95 


Todd, Spicer v 


... 68 


Walker v Walker ... 


... 166 


Toddington, The King v 


... 517 


Walker's case 


... 410 


Tone, Sutton v 


... 115 


Wallace » Patton ... 


... 259 


Tongue, Heap v 


... 123 


Wallace, M'Dermot v 


... 206 


Tourville v Naish 


151, 152 


WaUer, HUlary v ... 


... 447 


Tower, Shippardson v 


... 425 


Walpole V Cholmondely 


... 247 


Townly © Bolton ... 


...206 


Walpole V M'Clintock 


... 520 


Towns V Wentworth 


... 156 


Walters, Rex v 


... 415 


Townsend, Gardiner v 


... 132 


Warburgh v Tucker 


... 58 


Townsend, Magee v 


... 339 


Ward, Biggs v 


... 218 


Townsend r Mostyn 


...512 


Ward, Ex parte 


... 410 


Trant v Dwyer 


... 79 


Ward V Gray 115, 


118, 121, 122 


Trappes, Payne v 


... 247 


Ward, Jennings v 


... 368 


Trebecr Keith . ,.. 


'^tpp* 36 


Waring, Reynolds v ... 


... 512 


Tredennick, Dunbar v 


... 100 


Warren, Law v 


... 123 


Tregoe, Hayter v 


... 43 


Waters, Taylor v 


38,39 


Trotter, Crawford v ... 


116, 120 


Waters, Williams v ... 


...496 


Tuck, Garrard v 


... 65 


Watson, Fitzpatrick v 


... 215 


Tucker, Warburg » ... 


... 58 


Watson V Sadleir 


... 132 


Tulk V MoThay 


35, 87, 138 


Watson, Taylor v ... 


... 35 


Tnllett V Armstrong 


271, 273, 275 


Weatherall t; Goring 


... 137 


Turvill, Norton V 


... 275 


Webb V Wools 


... 218 


Turton 9 Beignolds ... 


App. 13 


Webster, Johnston v 


... 520 


Twig, Britton v 


... 375 


Wedgwood v Adams 


... 214 


Twiss, York v 


... 456 


Wentworth, Towns © 


... 156 


T^dall, Cohnore v ... 


... 496 


West, Calcraft V 


... 40 


Tyrconnell, Lord, v The Duke of 


West V Read 


... 511 


Ancaster 


... 100 


Westcott V Culliford 


... 184 


Tyrer, Onions v 


... 247 


Weyman, Spooner v 


... 200 


Ulrich V Lichfield ... 


426, 428 


Wharton v Barker ... 


... 494 


Usticke V Peters 


476, 480 


Wharton, Ridgeway v 


...518 


Yaughan t; Ascue 


App.n 


W batman v Gibson . . . 


53, 188 


Yaughan e Marquis of Headford 1 1 6 


Wheatley, McDowell v 


281, 282, 286, 


Yemey, Staunton v ... 


... 17 


290, 291, 293, 358, 


897, 398, 399 


Yemen, Lord Hardwicke 


V ...314 


Wheeler v Smith ... 


... 218 


Yicars Choral v Ayres 


... 496 


Whieldon, Grordon v 


... 115 


Yogel, Ex parte 


... 414 


W hite V Anderson ... 


... 229 


Wade, Averall v 


370, 372 


White, Deed. Barton V 


... 484 


Wade, Birch v 


... 340 


Whitehead v Hughes 


... 68 


Wagner, Paine v 


... 115 


Wicken, Mitford v ... 


426, 430 



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XTi TABLE OF CASES CITED. 




Wickham v Hawker ... 


... 89 


Winteringham, Loscombe v 


43,48 


Wiekham v Wickham 


... 495 


Witts t> Boddington ... 


... 340 


Wienholt, Logan v ... 


184, 190 


Wood V Cox 


... 219 


Wilbraham v Snow ... 


..• 467 


Wood V Knox 


... 269 


Wik50x V Hannyngton 


... 271 


Wood » Leadbitter ... 


35, 38, 39 


Wild's case 


... 116 


Wood V Ordich 


143,^144 


Wilkinson, Norris v ... 


199, 203, 204 


Wood V The Copper-miners 


Com- 


Willett V Winnell ... 


...368 


pany 


... 183 


Williams v Armstrong 


... 49 


Woodgate t; KnatchbuU 


466, 457 


Williams v Chitty ... 


143, 144 


Woods, Bliss V 


App. 11 


Williams v Drury ... 


... 404 


Wools, Webb v 


... 218 


Williams, Keys v 


199, 204 


Woolston, Zouch v ... 


... 110 


Williams v Lucas ... 


... 132 


Worthington, Edge v 19S 


1, 203, 204 


Williams, Pierce v ... 


... 68 


Woswick, Sell v 


... 387 


Williams » Waters ... 


... 496 


Wright V Cadogan ... 


... 272 


Williams v Williams 


... 218 


Wright r Callender ... 


...439 


Willis, Douglas v — 


...206 


Wright, Jesson v 


376, 376 


Willis V Black 


183, 190 


Wright V Keily 


... 214 


WUlis, Randall v ... 


... 184 


Wyatt V Barwell 


...516 


Wills V Adey 


... 284 


Wynch's Trusts, In re 


... ^75 


Wilson V Hodges 


... 449 


Yarborough, Earl of, Lyle v 


...496 


WUson V Beid 


... 95 


York, The Archbishop of. 


Met- 


Wilson V Squire 


... 49 


calfv 


229, 230 


Wilson, Stead v 


...276 


York t» Twiss 


... 456 


Wilson V Thomond ... 


...511 


Young, Barkworth t; 183, 191, 192, 


Wilton, Doe v 


... 164 




193, 194 


Windham v Windham 


...206 


Young, Irving v 


...314 


Windus V Windus ... 


426, 430 


Young V Winter 


... 68 


WinneU, Willett v ... 


... 368 


Zichi, Marquis of Hertford v 


197 


Winter, Young V 


... 58 


Zouch V Woolston . . . 


... 110 



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CHANCERY REPORTS, 

BEING A 8B&IE8 OF 

CASES ARGUED AND DETERMINED 

IN TBB 

HIGH COURT OF CHANCERY, 

COURT OF APPEAL IN CHANCERY, 

llolls €omt, Janhb istahs Court 

AND 

COURT OF BANKRUPTCY AND INSOLVENCY 



Court oC 9ppeal fit Cjbaitceri^* 

In the Matter of the Estate of 
JOHN WILLIAM BURMESTER, FARMERY JOHN LAW 
and JAMES SADLEIR, Oumers and Petitioners ; 
Continued in the names of 
JOHN WILLIAM BURMESTER, WILLIAM CORY 
and JAMES ANDREW DURHAM, Owners and Petitioners; iggO. 
THOMAS JOSEPH EYRE, Appellant. Ch,App€aL 
May 29, 81. 



The following were the material facts disclosed by the pleadings s., being 

and affidavits in this case : — In the years 1843, 1844 and 1845, Mr. ed^to B. and 

Eyre* *^® appellant, had employed John Sadleir deceased, as his ^greed^wiiA b! 

for a fixrther 
advance, on a mortgage of rarioufl estates in Ireland. By the deed of mortgage, S. 
covenanted that the lands of E., which formed part of the secority, were free iix>m 
inenmbrances, and for farther assurance. No title was famished by S., nor search in 
the registry in Ireland made by B. Before the entire advance was paid over to S., 
it was discovered that the lands of E. were sabject to a mortgage to E, B. there- 
upon applied to S., who told him thatE. would release the Unds, on his (S.'s) 
reqnest ; on which assurance B. paid over the residae of the loan to S. S., sabse- 
qnently, by fraad, procured a release from E., of which release B. was made aware, 
bnt was ignorant of the fraud. The fraud was discovered after some months had 
elapsed. — Held, that B. was a purehaser for value of the release, as having been 
procured by S., in pursuance of the covenants in the mortgage deed ; and that, being 
i^orant of S.'s fraud, he was entitled to retain the advantage which the release had 
given him. 

VOL, 11. 1 



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In re 
BURMBSTER 

StQlement. 



2 CHANCERY REPORTS. 

1860. solicitor, in the matter of a certain loan of £40,000, made bj 
v^J^^ffl; Mr. Eyre to the Earl of Kingston, upon mortgage of the said EarFs 
life estate in certain lands ; and of a certain other loan of £12,000 
to Henry Smith, Esq., upon mortgage of certain estates of the said 
Henry Smith ; and, by reason of the insufficiency of the securities 
taken, or the misconduct of John Sadleir in that behalf, a great risk 
had arisen that the said sums would be lost ; and thereupon John 
Sadleir agreed to secure Mr. Eyre against any ultimate loss in 
respect of the said loans, by executing a mortgage of certain lands 
of the said John Sadleir, as collateral security to Mr. Eyre. 

Accordingly, by indenture of mortgage of the 20th day of Octo- 
ber 1854, after reciting that the said sums of £40,000 aiid £12,000 
had been advanced by Mr. Eyre, by the hands of John Sadleir, and 
that the said John Sadleir had agreed to secure him against any 
ultimate loss, by reason of such advances, in the manner therein 
provided, it was witnessed that the said John Sadleir granted to 
Mr. Eyre and his heirs all the lands therein mentioned, including 
the estate of Kilcommon and other lands sold in this matter, subject 
to redemption in case the said John Sadleir should repay the said 
sums so advanced as aforesaid, with interest at £6 per cent. And 
by the said deed of mortgage the said John Sadleir and Mr. Eyre 
duly constituted and appointed Mr. James Barron Kennedy as agent 
and receiver of the rents of the said estates ; and it was by the said 
deed of mortgage provided that the said James Barron Kennedy 
should, out of the said rents, in the first place, keep down the 
interest of certain incumbrances affecting the said lands, and, in 
the next place, pay to Mr. Eyre an annual sum of £3000, in part 
liquidation of the said moneys so advanced by and remainiog due 
to him, and should pay the residue of the said rents to the said 
John Sadleir. It was further provided that the said John Sadleir 
should be at liberty to sell the lands, as therein mentioned, but 
not for any less price than that for which the same had been 
purchased by the said John Sadleir in the Court of Incumbered 
Estates ; and that the produce of the sale should be invested as 
a security, in place of the lands sold. This deed of mortgage was 
duly registered in Dublin, on the 19th day of December 1854. 



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CHANCERY REPORTS. 3 

John Sadleir had become a director and the chairman of the Lon- 1860. 
don and County Bank, in or about the year 1848, and, from that time, ^J^~^^' 
in conjunction with various co-directors of the said Bank, he was bubbcesteb. 

engaged in a great variety of speculations and adventures in many 

parts of the world ; and the funds necessary for such speculations 
were supplied by very large advances of money made by the said 
Bank to him, as its chairman, in direct violation of the existing 
laws of the said Bank, and upon very inadequate security. 

Previously to the year 1863, the said John Sadleir had deposited 
with the said Bank, as a security to cover his debt to the said Bank, 
a certain deed, called *' the Chandos mortgage deed," by which cer- 
tain estates of the Duke of Buckingham and the Marquis of Chandos 
purported to be mortgaged to the said John Saldeir, to secure the 
sum of £134,934. 8s. Id., as due to him ; and, afterwards, with the 
permission of some of the parties connected with said Bank, he 
obtained possession of the said Chandos mortgage deed indirectly, 
and without the knowledge of the board of directors of the said 
Bank, and raised a sum of £55,000 from other persons, which he 
applied to his own use, having, nevertheless, undertaken to pay the 
same to the said Bank, in reduction of his debt to them. He subse- 
quently deposited with the said Bank a certain other deed, called '* a 
declaration of trust of the said Chandos mortgage ; " and, afterwards, 
clandestinely abstracted from the Bank the said deed of declaration 
of trust, and raised upon the same a further sum of £10,000, which 
he also applied to his own use, all which matters were well known 
to the directors of the Bank. 

In the month of May 1855, John Sadleir appears to have owed 
the Bank £250,000 and upwards, upon loan and discount ; and, in 
the month of June 1855, a further advance was made to him, of 
£25,000, upon discount of a bill for that amount, drawn by the 
Tipperary Joint-stock Bank, of which James Sadleir, the brother 
of the said John Sadleir, was the sole managing director. 

On the 24th of July 1855, John Sadleir applied to the Bank for 
a further loan of £15,000, which was refused ; and, on the same 
date, the Bank refused to honor his cheques, and closed his drawing 
account, of which they gave him notice. James Sadleir, thereupon, 



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4 CHANCERY REPORTS, ' 

1S60. and on the same 24th day of July, applied to the Bank for a loan of 

.^,- Jl^ the sum of £15,000, upon the security of his promissory note for 

BURKESTER. ^^^ amount at twenty-one days; and such advance was made to 

him accordingly, but in fact for the urgent necessities of the said 

John Sadleir, as was well known to the dii*ector8. 

On or about the 26th day of July 1855, James and John Sadleir 
proposed to the said Bank that they should advance, out of the 
funds of said Bank, a farther sum of £95,000^ to meet the most 
pressing demands on the safd John Sadleir, and that, to secure the 
whole of the debt of the said John Sadleir to the said Bank, 
including the said sum of £95,000, all the available property of the 
said John Sadleir should be vested in trustees to sell ; and James 
Sadleir then stated and represented that John Sadleir was entitled 
to real estates in Ireland, to the value of £174,000, which were to be 
included in such security ; and James Sadleir, as managing director 
of the said Tipperary Joint-stock Bank, agreed to give the guarantee 
of the said Bank for the repayment of the whole amount of the said 
debt of the said John Sadleir to the London and County Bank, 
amounting to the sum of £300,000, or thereabouts. To this propo- 
sition the London and County Bank agreed, on the Slat of July. 
Two, daya later, via., on the second day of the following month of 
August, twenty deeds of conveyance were executed by the said 
John Sadleir, bearing date respectively the 1st day of August 1855, 
whereby he conveyed, or purported to convey, to John William 
Burmester, Farmery John Law and the said James Sadleir, as 
trustees, divers lands and estates in Ireland, including the said 
estate and lands of Kilcommon, and the other lands included in 
Mr..£yre*s deed of mortgage of the 20th day of October 1854; 
and, on the same 2nd day of August, the said trustees executed 
a declaration of trust, in writing, whereby it was declared that the 
said trustees would hold all the said real and personal estate so 
vested in them, in trust to sell, and, out of the proceeds^ to pay 
all soma due by the said John Sadleir to the said London and 
County Bank. It did not appear that, with respect to the said 
estates, any statement of title to the same was ever made by the 
said John Sadleir or the said James Sadleir to the Bank or ita 



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CHANCERY REPORTS. 5 

solicitors, or that the Bank, or its solioitors or agents, ever saw I860. 

anj deed or dooument evidencing the title of the said John Sadleir y^ 

to the same ; or that they inquired whether the said John Sadleir bormestbr. 

was in fact in possession of or in receipt of the rents of the said 

Statement. 
lands, or that any search or inqairj was made by the said Bank for 

incumbrances or judgments affecting the said lands. 

On or about the 10th day of August 1855, Mr. Stevens, of 
the firm of Wilkinson, Gumey & Stevens, solicitors for the London 
and County Bank, went over to Dublin, for the purpose of regis- 
tering the twenty deeds; and Mr. James Barron Kennedy, who 
was a member of the firm of Messrs. Morrogh & Kennedy, in 
Dublin, was employed by the Bank to assist in the registry thereof. 
Mr. Kennedy had acted as Mr. Eyre's solicitor in the matter of 
the said mortgage of the 20th of October 1854, 'and had been 
named receiver therein ; and» behig thus aware of the existence 
of that security, he informed Mr. Stevens thereof; and Mr. Ste- 
vens, thereupon, on or about the 13th day of August, wrote to 
his said firm in London, and also sent a message by tel^raph 
to John Sadleir, mentioning to both Mr. Kennedy's communication, 
and desiring his partners to prevent the Bank parting with more 
money until the matter was cleared up. 

On the said 13th day of August 1855, John Sadleir wrote to 
Mr. Eyre, who was then in Bath, a letter, as foUowa: — 

•'London. Avgost 13th 1855. 

'*' Mt dear Mr. Eyre — I suppose you have with you the indem- 
nity deed signed by me, in which we both agpreed that a proviso 
should be to the effect that I might substitute for the lands included 
in the deed other lands^ or shares paying £5 per cent. / am tram- 
ferring now the lands included in the dtd^ in order to enable me 
to pay up all my shares in the Royal Swedish Railway, which is 
Hkely to turn out a very valuable concern, and to provide for other 
payments, such as calls on the East Kent shares I hdd, and other 
matters ; and I want you to instruct J. B. Kennedy to prepare, at 
my expense, such deed or deeds as may be requisite to carry out 
o«v instructions according to the proviso in the indemnity deed. 
My notioo is that, as I have to pay you £3000 a-year, and, as I 



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6 CHANCERY REPORTS. 

1860. shall be entitled to £3000 a-year on 12,000 Rojal Swedish shares of 

^J^S^ £S each, folly paid up (and with coupons for the interest at £5 per 

BUBiCESTER. ^^^ payable half-yearly), it is better for you, and also for me, to 

have this certain means of my paying the £3000 regularly to you, 

than I should lose the present 6pportunity of making a general 
arrangement as to the mortgaged lands, which certainly enables me 
' to have a very large stake in the Railway, which will have its first 
opening in next month. If yon desire to have more property in the 
indemnity deed than the £60,000 of Railway shares, paying £3000 
a-year, I have no objection to have the Wall lands, as they are to 
be included in the secunty for the Wall purchase-money (after 
Moore's £15,000), also made liable under the indemnity ; and, if 
you would prefer that the yearly payment by me to you should 
be £5000, and not £3000, I shall be quite prepared to meet your 
wishes in this particular ; for, certainly, by substituting the Railway 
shares, paying £5 per cent., for the lands, I become enabled to pay 
£5000 a-year far easier than £3000 without such an arrangement. 
If I have not sufficiently explained this matter to you in this letter, 
I shall go to Bath, and explain my position and plans to you more 
fully. I hope you will be able to write to me a line by Tuesday's 
post, to No. 1 1 Gloucester-square, for I am rather anxious not to let 
the present opportunity slip ; and, from what I have heard this day, 
I feel unwilling to delay the afl&ur. You might wish to refer to 
J. B. Kennedy the task of carrying out the alteration in the indem- 
nity, and the substitution of property according to the proviso in 
the original deed, in a way which would be just and proper, as 
regards our respective interests ; and, with that view, I think if you 
sent him this letter, with your own written instructions, the business 
could be done by him in a satisfactory manner. Of couse, before I 
would expect you to sign any deed of release of lands, I should hand 
you over the Railway shares, with the coupons for the dividends or 
interest. I do not know whether you consider it unreasonable to 
wait for the £1500 I am to pay, until I get my coupons paid at the 
Royal Swedbh next month ; but if it is inconvenient to you to give 
me until then, I believe I can have no difficulty in discounting the 
coupons now at once, and so be able to pay in the £1500 to your 



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CHANCERY REPORTS. 7 

credit. If I have to go down to Bath oa Wednesday, to see you on I860. 

Ch, Appeah 

this indemnity basiness, I shall explain to you about Lord Chandos. V"-v^ 

In re 
" I remain, my dear Mr. Eyre, yours sincerely, bubmester. 



'* John Sadlieb." 
On the following day (the 14th of August), Mr. Eyre wrote to 
John Sadleir a letter in reply, to the effect that he did not perfectly 
understand his proposition, but was willing to forward his views if 
safe, and that he would send Sadleir's letter to Mr. Kennedy for 
consideration ; which accordingly he did on the same day. On the 
same 14th of August, and before Mr. Eyre*s letter had reached Sad> 
leir, Mr. Wilkinson (of the firm of Wilkinson, Greene & Stevens), 
having received Mr. Stevens' letter from Dublin, had an interview 
with Sadleir, who informed him that the mortgage to Mr. Eyre need 
form no difficulty, as Mr. Eyre would at once release at his request, 
and that he had written to Mr. Eyre with reference to the matter. 
On the 15th day of August, John Sadler sent by telegraph, to Mr. 
Kennedy, a message as follows :-^*< Favourable letter from Bath, 
which I send you. He also writes to you." And on the same 16th 
day of August, Mr. Kennedy wrote and sent to Mr. Stevens, who 
who was then at Killamey, a letter as follows : — ^' I got the follow- 
ing message from London this morning : — * Favourable letter from 
Bath, which I send you. He also writes to you.' As yet I have 
not got Mr. Eyre's letter." 

On the 15th of August, James Sadleir asked Mr. Wilkinson for a 
cheque for £10,000 (part of the £95,000) then in his hands; and 
also for another cheque for £15,000 (part of the same fund), for the 
purpose of paying off the £15,000 promissory note of James Sadleir. 
Mr. Wilkinson said that this money could not be paid until the mat- 
ter of Mr. Eyre's mortgage was arranged ; whereupon John Sadleir, 
who was present, stated to Mr. Wilkinson, that he had had a com- 
munication from Mr. Eyre, undertaking to release the estates from 
the mortgage; and in reliance on that assertion the two cheques 
(constituting the then unpaid part of the £95,000) were handed 
over. 

On the same 15th day of August, John Sadleir wrote and sent to 
Mr. Eyre another letter, which was as follows : — 



Statement. 



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SUitem£Mt, 



8 CHANCERY REPORTS. 

1860. "11 Gloncester-sqiiare, Hyde Park, London, 

Ck^ppeai. " 16th Augnst 1855. 

BURME8TSR. *' ^^ DEAR Mb. Etre — I am (}tiite satisfied that the ot>eration 
of substitutiDg other security for the lands now included in the in- 
demnitj deed should be according to what J. B» Kennedy may 
consider right and fair as between us two. From the beginning to 
the end, I have but the one object, and that is, to manage matters 
so as that, whatever delays or annoyances you may have had to ex- 
perience heretofore, no ultimate loss should at all eivents happen. 
This change of security will greatly facilitate me in my efforts, with- 
out, I trust, at all damaging your position. In fact whatever serves 
me, in this respect, cannot, I believe, damage yon. The lands in- 
cluded in the indemnity deed are worth, I suppose, about £106,000, 
subject to mortgages to the amount of £46,000. I am looking to 
recovering losses on foot of lands, by the gain on the Royal Swedish 
shares ; and I think that in proposing to substitute for the indemnity 
lands 12,000 Royal Swedish shares, producing £3000 a-year, and 
agreeing to the Wall lands standing also as an indemnity, and in- 
creasing the yearly payment to you from £3000 to £5000, I will be 
carrying out an arrangement which must be of the two more favour- 
able to your interests than the present one. The present arrange- 
ment was the best I could offer and make at the time ; but I told J. 
B. Kennedy at the time, that I would want to act on the proviso 
for liberty to substitute securities, in order to carry out my own 
plans for covwing and protecting myself against loss. You most 
bear in mind that, after all, it may turn out that I will not have to . 
make good a very serious loss, in re Kingston^ and that when the 
poUcy for £4000, in re Smith v. Dennehy^ falls in, the loss in that 
case will be lessened too. However, we shall see what view J. B. 
Kennedy will take of the matter. Mr. William Eyre has not any 
charge or claim on the Wall lands. He has obtained from me a 
security on portions of the Cahir lands, and the other lands not in* 
eluded in the indemnity deed \ so that what I propose is, that your 
indemnity should attach on the Wall lands, subject only tq Judge 
Moore's £15,000, and your own claim thereon. — ^I remain, my dear 
Mr. Eyre, yours truly, " John Sadleir.*' 

*.* To Thomas Etbb, Eeq." 



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CHANCERY REPORTS. 9 

On the I6th day of August, Mr. Kennedy received a letter from 1860. 
John Sadleir, written by him on the 15th of August, suggesting that » -^ ^» 
Mr. Kennedy should go to Bath, to negociate with Mr. Eyre the BURHfESTER. 

proposed substitution of securities, and inclosing Mr. Eyre's letter 

of the 14th of August. And on the 16th day of August, Mr. 
Kennedy received from the said John Sadleir another letter, inclos- 
ing a copy of a share in the Swedish Railway Company, and of the 
charter, prospectus and reports of that Company. Mr. Kennedy, 
having received such letters, wrote and sent to Mr. Stevens, who 
was still at Killarney, a letter as follows : — 

*' 5 Great Denmark-street, Dublin, 16th Angiist 1855. 

'^ My dsar Sib — I have had letters from Sadleir, also from 
Mr. Eyre, and I consider my best course is to go to Bath to-night, 
imd arrange with Mr. Eyre as to the exchange, and for releasing^ 
his lands. I shall be back, I hope, on Monday, and meet you here. 
I send you letters, and leave your bag and deeds with Mr. John- 
ston. The parcel came to-day from Nicholas-lane^ but the deed I 
want is not in it. I have written for it. — Yours truly, 

•« J. R. Stevkhs, Esq." " J. B. Kennedy. 

Mr. Kennedy had previously informed Mr. Stevens that an ex- 
change of the securities so held by the petitioner was intended to 
take place. 

Mr. Kennedy left Dublin accordingly, on the I6th day of 
August, and arrived in Bath on the 17th of that month. On 
the 16th of August he sent the following telegraphic message to 
John Sadleir : — " Dublin — To John Sadleir, Reform Club, London. 
I go to Bath to-night, and will telegraph to-morrow to Nicholas- 
lane* what I do. 1 hope to leave Bath Saturday morning." And 
during his journey, Mr. Kennedy sent a second telegraphic mes- 
sage to John Sadleir :—" Stafford— To J. Sadleir, Reform Club, 
London. — To secure £5000 a-year there should be 20,000 shares 
of £5 each ; four per cent, only stated on the share sent." And on 
his arrival in Bath, on the said 17th of August, he received from 
John Sadleir two telegraphic messages in reply, as follows : — " From 
J. Sadleir, London, to J. B. Kennedy, White Hart Hotel, Bath— 

• Where Messrs. Wilkinson, Gumey & Stevens had their office. 
VOL. II. * 2 * 



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10 CHANCERY REPORTS. 

'I860. The shares to the amount you meBtioo can be given ; if not, other 
Ch. AppwL 
"^^^ ' property. Dargan's note for £12,000, due Ist May next, can be 

BUBBCBeTES. given." From same to same : — ** If requisite, James will guarantee 
Staument ^^® £5000 a-year; in May next, ten or twenty thousand <x>uld 
be paid.'' Mr. Kennedy did not send any telegraphic message to 
Nicholas-lane, inasmuch as, after his interview with Mr. Eyre, as 
next hereinafter stated, he was unable to state that Mr. Eyre would 
release his said security until the inquiries Mr. Kennedy was to 
make were satisfactorily answered. 

On the said 17th day of August, Mr. Eyre had an interview 
with Mr. Kennedy, when Mr. Eyre agreed to the arrangement 
proposed, subject, nevertheless, to the result of certain inquiries to 
be made as to the line of Railway, and the value of the said shares ; 
and Mr. Kennedy undertook to go to London, to make inquiry re- 
specting the said line and shares. Mr. Kennedy accordingly pro- 
ceeded to London, and met John Sadleir there, on the evening of 
the said l7th of August, and handed to him certain queries in writ- 
ing, as to the Railway and shares ; and, on the 1 8th of August the 
said Mr. Kennedy and John Sadleir had an interview, and the 
said John Sadleir then delivered to Mr. Kennedy answers in writ- 
ing to the said inquiries, which answers Mr. Kennedy embodied in 
a letter written by him to Mr. Eyre, on the same 18th of August, 
recommending the acceptance of Sadleir's proposition. 

On Monday the 20th of August, and not before, Mr. Eyre 
wrote to Mr. Kennedy, according to a form inclosed in the said 
letter, a letter as follows : — 

" Bath, 20th Angnst 1655. 
" Dbar Sis — Upon the terms stated in your memorandum of 
the 18th instant, I will release the Irish estates of Kilcommon, 
Skehana, Boggawn, Castlegrace and Clonmore, from the indenmity 
given me upon them under the deed of the 20th of August 1864, 
and I request you will prepare the necessary docqments for my 
signature, — Tours truly, Thomas Etbb." 

And it was only then that Mr. Eyre had finally determined to 
accept Sadleir's proposal for a change of securities. However, Mr. 
Kennedy, on his arrival in Dublin, on Sunday the 19th of August, 



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CHANCERY REPORTS. 11 

immediately had an iDterview with Mr. Stevens ; and, aasuming that I860. 

Mr. Ejre would act on his recommendation, told Mr. Stevens that -l-^-^ 

the release would be executed, and, at his request, then wrote a bitbmesteIi. 

letter, which, however, was dated the 18th of that month, and was 

Statemeni. 

as follows : — 

" Great Denmark-Street, 18th Anguat 1855. 
** Dbas Sirs — We have arranged with Mr. Eyre to release the 
Kilcommon, Castlegrace and Clonmore estates, and hope to have 
the necessary deed executed in a week or ten days. — Yours truly, 

'^ MoRBOOH & Kennedy. 
•* To Mesm. Wilkinson, Gubnkt & Stevens." 

On the 13th day of October 1855, Mr. Eyre executed a certain 
deed of re-conveyance, made between him of the one part, and John 
Sadleir of the other part, and purporting to bear date the 5th day of 
October 1855, whereby, after reciting the deed of the 20th October 
1854, Mr. Eyre, at the request of the said John Sadleir, re-conveyed 
all the lands therein comprised to the said John Sadleir, discharged 
of the trusts of the said indenture of mortgage. 

In this deed no consideration was stated, nor any reason given for 
such re-conveyance. It was executed by Sadleir, in the office of 
the solicitors of the bank in London, in presence of one of their 
clerks and of Mr. Kennedy, and taken by Mr. Kennedy to Dublin, 
for registratiod ; and Mr. Stevens deposed that, in the subsequent 
November, being in Dublin, he had inquired and was satisfied that the 
release was registered. On the same ISth of October 1855, Mr. 
Eyre executed certain indented articles of agreement, purporting to 
bear date the 6th day of October 1 855, and made between the said 
John Sadleir of the first part, Mr. Eyre of the second part, and the 
said jKmes Sadleir of the third part ; whereby, after reciting the said 
indentures of the 20th of October 1854, and of the 5th October 1855, 
and that Mr. Eyre had agreed, in lieu of the said mortgage, to accept 
the securities therein mentioned, and reciting the delivery of the 
said Swedish Railway shares, and reciting that, by virtue of a special 
resolution of the said Railway Company, of the 26th of August 1855, 
the said shares bore interest at £5 per cent, per annum, it was 
witnessed that the said shares should be vested in Mr. Eyre, sub- 



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12 CHANCERY REPORTS. 

I860. ject to redemption on the terms therein expressed, and correspond^ 
■- V -^ ing to the terms contained in the said deed of the 20th of October 
BURME8TER. 1854. And bj the said agreement the said John Sadleir covenanted 
to convey, by way of mortgage and farther security, to Mr. Eyre, 
certain lands called the Wall or Coolnamuck Estate, subject to a 
certain other agreement of the 13th of May 1855, relating thereto, and 
entered into between Mr. Eyre and the said John Sadleir, and in 
which said articles were contained certain powers of sale, respecting 
the said last mentioned lands; and by the said articles, the said 
James and John Sadleir covenanted with Mr. Eyre for the payment 
of an annual sum of jE5000, in liquidation of Mr. Eyre's demands ; and 
it was declared, that any moneys received by Mr. Eyre, on foot of 
the said promissory, note for £12,000, of the said William Dargan, 
should be applied in liquidation of his said demands. 

At the time of the execution of the said agreement by Mr. Eyre, 
the said Swedish Railway shares, and also a copy of the said resolu- 
tion of the 26th day of August 1 855, and the said promissory note 
of the said William Dargan, were handed^over to Mr. Eyre by Mr. 
Kennedy. 

The intended mortgage of the lands of Coolnamuck was never 
executed, nor was any payment of money ever made under the pro- 
visions of the agreement of the 6th day October 1855. And it was 
discovered by Mr. Eyre, after the death of John Sadleir, and not 
before, and established by the evidence in this matter, that the 
Swedish Railway shares 'were forgeries ; that no such minute or reso- 
lution of the said Railway Company was ever made, as pretended, and 
that the promissory note for £12,000, of the said William Dargan, 
was also a forgery. It was also proved that in fact the Wall or 
Coolnamuck lands were, previously to the date of the articles of 
the 6th day of October 1855, subject to charges which exceeded the 
value of such lands, and that the guarantee of James Sadleir was 
wholly worthless. 

By an indenture of the 7th day of September 1855, executed be- 
tween the said John William Burmester, Farmery John Law, and 
James Sadleir, of the one part, and the said 'John Sadleir of the 
other part, after reciting the execution of the said twenty deeds of 



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CHANCERY REPORTS. 13 

the 1st of Aagost 1855, it was declared that the trustees should stand ^ Amieal 
possessed of all the lands and premises thereby conveyed, upon trust ^"^li^^ 
to sell, and out of the proceeds to pay all incumbrances for the time BURiiESTEB. 
being affecting the said landSj and upon trust, as to the residue or statement. 
surplus of such proceeds, for the said John Sadleir absolutely ; and 
by another deed, of the 8th day of September 1855, the said John 
Sadleir declared a trust of the said residue so coming to him, and 
that the same should be applied in discharging the sums due by him 
to the London and County Bank, and to the said Tipperary Bank. 

John Sadleir died, by his own hand, in February 1856, insolvent ; 
and that no payment was made to Mr. Eyre on foot of the said 
indenture of the 20th day of October 1854, except a payment of 
£3000, made on or about the 4th day of December 1855, in pur- 
suance of the term^ of the said indenture ; and it was believed 
that the entire sums lent to Lord Kingston and Mr. Smith would 
be lost. 

On the dOth of June 1856, the said trustees presented a petition 
to the Incumbered Estates Court, for a sale, among others, of the 
lands included in Mr. Eyre's mortgage ; and Mr. William Cory and 
Mr. Andrew Durham having been substituted for Messrs. Law and the 
late James Sadleir as trustees for sale, the proceedings were carried 
on in the names of the new trustees, and the lands sold. On the 
ruling of the final schedule of incumbrances, on the 31st of October 
1^9> Mr. Eyre, in pursuance of an objection previously filed by 
him, submitted that, at the date of the declaration of trust, of the 7th 
of Septembet 1855, his mortgage was in equity a subsisting charge 
on the said lands, and a trust was, by the last-mentioned deed, de- 
clared for the payment of the same, and that the said London and' 
County Bank could claim nothing under the said last-mentioned 
deed, or the deed of the 8th of September 1855, except the surplus 
to which the said John Sadleir was entitled after payment of Mr. 
Eyre's mortgage, of the 20th of October 1 854. The indenture of the 
7th day of September 1855 was alone registered. 

Judge Longfield, however, 'was pleased to order and adjudge — 
** That the said release of the 5th day of October 1855 was void as 
against any surplus coming to John Sadleir, but that the same was 



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14 



CHANCERY REPORTS. 



1860. valid as regards the daim of the London and County Bank.** And 
CA. AppeuU ^ 

— p ' it was aocordingly declared by the Court, that the objection of Mr. 

BUBME8TER* Ejrc should be OYerruled with costs. Thereupon Mr. Eyre filed 
Statement. ^^ petition of appeal, submitting thereby that Judge Longfleld's 
order was erroneous, and ought to be reversed or varied, so far as it 
declared the said deed of release valid, as regarded the claim of 
the said London and County Bank, and so far as it overruled Mr. 
Eyre's objection ; and that he ought to be declared entitled to a lien 
on the proceeds of the sales of the lands comprised in the said in- 
denture of mortgage, of the 20th of October 1854, according to the 
rights conferred on him by that deed, as if the said indenture of re- 
conveyance, of the 5th day of October 1855, had never been executed 
by him. 



The Aitamey-General (with whom were Mr. Rogers and Mr. 
May)y for the appellant. 
Argument. The question in this case is entirely one of equity, as neither of 

the parties concerned has the legal estate in the lands, which are 
now vested in the heir-at-W of John Sadleir. The Bank, in this 
ease, does not fill the position of a purchaser who advances his 
money on the fiiith of receiving an unincumbered estate as security. 
At the time of the mortgage, their advances to Sadleir, and their 
connection with him, had been sueh that they were obliged to take 
anything he had to give diem as security for. the further advances 
which, to save themselves, they were compelled to mi^e to him. 
Tbey never attempted to aseertain, by search in Ireland, or by any 
investigation of title whatever, what they were getting as security. 
Li truth, therefore, whatever may be the form of the recitals and 
covenants in their conveyances, in substance they took subject to 
Mr. Eyre's mortgage^ and any other that might appear. They had 
fall notioe, moreover, that, if Mr. Eyre released, it would be only on 
getting valid securities in exchange. They must have known that 
his release was subject to 'an implied condition that it should be 
honestly obtained. But, in Dsust, they are mere volunteers, as 
regards this release ; they never paid a shilling on the faith of it. 
The great bulk of th^ money they paid without having taken the 



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CHANCERY REPORTS. 15 

ordiDarj precaution of inquiring into Sadleir's title, and, therefore, 1860. 
in ignorance of the mortgage ; and then, notwithstanding notice, >J^JLS 
paid out the remainder of their money, on a promise of Sadleir bubmester. 

that he would obtain a release, and without any communication 

with Mr. Eyre himself. It was not until long afterwards that 
Mr. Eyre re-conveyed ; and, up to the moment of re-conveyance, 
he had never bound himself to do anything. As far as they were 
concerned, it was a purely voluntary act; and, so fiir were they 
from acting on it, that they did not see the deed until after Sad- 
loir's death, and they do not appear to have been even aware that 
it was executed. They did nothing and gave nothing on the &ith 
of this release. A person who has given no consideration cannot, 
even though innocent, take advantage of a deed obtained by fraud : 
Sehoifield v. Ten^lar{a). There is no authority for saying that 
if a party buys subject to a mortgage, he can, without giving any 
further consideration, avail himself of a release obtained by the 
fraud of his vendor. In such case, the vendor must be considered as 
the agent for the purchaser in the negociation of the release ; and 
the latter would, therefore, be affected by the fraud. The neglect 
of this Bank, in making none of the usual searches, disentitles them 
to the consideration of a Court of Equity: Jackson v. Roe{b). 
'*It would be against reason," says the Master of the Rolls, in 
Hubbard v. Lyater (c), where there was a defence of purchase for 
value without notice, '^to allow the protection of this plea to a 
purchaser who had wilfully relinquished the security which the 
statute has afforded him.** 

On the subject of notice, they cited Sug. Ven. ^ Pur.^ p. 619, 
and the cases there referred to. 

Mr. Serjeant Lawson and Mr. Sullivan (with whom were Mr. 
Brewster and Mr. Romney Foley\ for the London and County 
Bank. 

It is quite a mistake here to suppose jthat the Bank contracted 
with Sadleir for a security on these lands subject to Mr. Eyre's 

(a) 1 Johns. 185. (6) 2 Sun. & Stn. 472. 

(c) 7 It. Eq. Rep. 560. 



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In re 
BURBfESTBB. 

Argument. 



16 CHANCERY REPORTS. 

I860. mortgage. If they did, their case would stand on different grounds 
s^J^fElS from what it rests on. They contracted, as the deeds show, for a 
security on an unincumbered estate (save as to a specified mortgage). 
Sadleir covenanted that the lands were unincumbered, and for fur- 
ther assurance. As soon as the Bank, in the fair and regular 
completion of this conveyance, discovered the existence of this 
mortgage, they called on Sadleir, in pursuance of his covenant, to 
procure a release ; and it was only on his express understanding to 
do so forthwith that the remainder of the money was paid. How can it 
be said that the Bank have not given their money for whatever 
Sadleir procured for them in pursuance of that undertaking? They 
are plainly purchasers of it for value. It is not necessary that the 
consideration in such a case should be paid to the person releasing : 
CobbeU V. Brook (a). The Bank, as is alleged by the appellant 
himself, held themselves altogether aloof from the dealings between 
Sadleir and Mr. Eyre ; and, in that respect, their case is quite 
distinguishable from that of Templar, in Scholfield v. Templar. 
There, the misrepresentation was made with the concurrence (no 
doubt innocently) of the person who was to obtain the advantage 
by it. Then, Immediately after the payment of the money, they were 
assured, by Mr. Eyre's known solicitor, with whom they had been in 
communication, that a release would be executed by Mr. Eyre; 
and on that assurance, and relying on the release, they remained 
quiescent ever after. It is impossible to say what their position 
might have been, with regard to these moneys, if Mr. Ejrre had 
refused to release, and they had proceeded to call th^m in. They have, 
therefore, changed their position materially on the faith of his release. 
He knew well, through his solicitor, that the release was wanted to 
enable Sadleir to de^ with other persons ; and, if he intended that 
there should be any such condition attached to it, with regard to 
the validity of the new securities, as suggested at the Bar, he should 
have so expressly stated at the time. Is it to be supposed that 
everyone taking lands released under a proviso, such as was in Mr. 
Eyre's deed, is bound to see to the title of the substituted securities ? 
As for negligence, it is Mr. Eyre's own negligence, in taking this 

(a) 20Beav.5a4. 



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CHANCERY REPORTS. 



17 



great amount of shares without taking a single question at the I860. 
Railway office, which has caused all the difficulty. .^tppm 

They referred to Staunton y. Vemey(a)\ Joyce v. De Mo- bdrmesteb. 



leym(b\ 

The Lord Chancellor. 

The question in this case turns not upon the poiot of registry 
search, or upon the &ct of notice of the incumbrance itself. It 
comes simply to this ; if these Bankers have given consideration for 
what they derive under this instrument, unless you show that they 
had notice of the fraud in question, or that they were concerned in 
the misrepresentation, what case do you make against them ? That 
distinguishes their case from the case in Johmon^t ReporU. Here, 
the London and County Bank had no notice whatever of the fraud ; 
they are not parties in any way to the misrepresentation ; and the sole 
and single question then is, have they given consideration for what 
they got by virtue of this deed ? What they got was a discharge of 
the incumbrance from the estate which they bought. They gave 
eonsideration for the xsontract to effect that discharge, and for the 
covenant for further assurance by John Sadleir, and all deriving 
under him, ineluding Mr. Eyre. This agreement is carried out. 
The consideration comes down to the completion of the transaction ; 
and it is impossible to say that the consideration does not run 
through the whole of it. Unless they can be fixed with fraud or 
ausre^pesentation prior to the execution of the deed, their position 
is unaffected. It would be inequitable in the highest degree to take 
ftom them the protection which they got, in innocence of the frauds, 
and upon the faith of which they paid their £95,000. The judg- 
ment of the Court below must be affirmed, and with costs. 



ArgwrnmU, 



JudgmmU. 



The Lord Justice of Appeal. 

The grounds of my opinion, that the order of Judge Longfield 
should be affirmed, have been partly stated in the course of the 
acgument. They are very few and simple. The London and 

(«) 2 Ed. 81, 85. (6) 9Ir, Eq. Rep.676; 8, a, » J. ft L. 69a 

VOL. 11. 3 



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CHANCERY REPORTS. 



" 1860. 
Ch. AppeaL 

In re 
BURME8TER. 

Judgment. 



County Bank are purchasers for value under this deed. They 
advanced £95,^00 on the mortgage executed to them by John 
Sftdleir, purporting to convey to their trustees the lands free from 
incumbrances. The money advanced by ' the Bank was the consi- 
deration as well for the conveyance of the lands as for the protection 
which the covenant of the deed bound John Sadleir to afford, when- 
ever it was found to be necessary. It was in substance and effect 
a remedy for restoring to the Bank as much of the money as should 
be equivalent to any undiscovered incumbrance, if, when discovered, 
John Sadleir failed to have the estate discharged from it. This was 
a continuing right on their part, and an obligation on him quite 
independent and irrespective of the time, whether earlier or later, 
that the £95,000 should be advanced^ When, therefore, the incum- 
brance of Mr. Eyre was discovered, the liability of John Sadleir to 
have it released, or to pay an equivalent in damages, became imme- 
diate and absolute. To discharge it, he applied to Mr. Eyre, who 
declined to be himself the medium of negociating the proposed sub- 
stitution of other security for that he was asked to relinquish, and 
committed the whole affair to his solicitor. In the deception prac- 
tised on him, and the consequent loss incurred by Mr. Eyre, there 
is no pretence that the Bank participated ; they required only what 
they were entitled to, a release ; and John Sadleir, under the obli- 
gation of his covenant, obtained it for them, thus performing one 
alternative, and avoiding the other, of making them restitution or 
compensation in damages. The act of John Sadleir was only what 
he was legally bound to do. The fraud he practised to accomplish 
it was wholly unknown and unsuspected by the Bank, and, as pur- 
chasers, they have obtained what they were entitled to, and have 
paid for, and have an indisputable right to retain. 



Order. 



It is ordered by this Court that the petition of appeal be, 
and the same is hereby, dismissed with costs ; and, accord- 
ingly, it is further ordered that the order of the Landed 
Estates Court, bearing date the 3l6t day of October 1859» 
be, and the same is hereby, af&rmed. And it is further 
ordered that the deposit of £10 lodged with the Registrar 



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CHANCERY REPORTS. 



19 



1860. 
Ch, Appeal, 

In re 



be paid to the said John William Burmester, William Cory, 

and James Andrew Durham, in part payment of such costs. 

And it is further ordered that the said appellant do pay bubmester. 

to the said John William Burmester, • William Cory and 

James Andrew Durham their further costs of this appeal, 

beyond the sum of £10, when same shall be taxed and 

ascertained. 

Court of Appeal Hearing Book,/, 371. 



Judgment, 



In re the Estate of GEORGE JOHN LANAUZE. 



1859. 
Nov. 22, 



This was an appeal, on behalf of the owner, from an order of Judge a testator de- 

Longfield in the Landed Estates Court, ruling that certain legacies ^^^ ^ ^ 

bequeathed by the will and codicil of John George Lanauze were ^]J^oldinb^l 

charged upon the lands sold in this matter. ^' «'?au*"h*' 

John George Lanauze, appellant's uncle, was, in his lifetime, pos- ^7 property 

and worldly 
estate what- 
ever," to a trustee, upon trust, in the first place, to preserve the sidd chattel interest 
by payment of head-rent and renewal fines. He then bequeathed certain pecnniary 
legades, and, among others, a smn of £100 to the trustee; *'and as to, for and 
concerning all the residue of my interest in my said lands, and as to, for and con- 
cerning the residue, similarly, of m^ other personal estate and effiscts, subject to the 
hereinbefore trusts, I hereby give, beaueath and devise all such residue of my inter- 
est in the said lands, as also SH such the residue of my personal estate and ejects, in 
trust for my eldest son." The testator then charged the lands and the residue of 
his personal estate with certain sums for younger children. The testator then de- 
dared that, in case he should die leaving no son, but leaving an eldest or only 
daughter, then he devised all his interest in said lands, and ail the residue of his 
personal estate, in trust for such daughter, with remainders over ; and he directed 
*' that ail the intermediate rents and profits of my said lands, as well as of the resi- 
due of my said other personal estate and effects, which shall accrue, arise or be made 
out of both said funds," subject only to the provision made for testator's wife by 
their marriage settlement, and to his debts and funeral expenses, '* and to the seve- 
ral legacies hereinbefore enumerated," should go to the trustee. In 1846, Master 
Henn had made a report, afterwards confirmed by a decree in Chancery, by which be 
found that the legades under the will were not chaiged upon testator's mterest in 
the lands. — Beld, that, upon the true construction of the will, the legades were not 
charged upon the lands. 

Held alio, that the legatees were bound by the Master's report 

The Judges of the Landed Estates Court are bound by a final decree of the Court 
of Chancery. 

In re Kelfy (9 Ir. Chan. Bep. 103) commented on. 



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Statement* 



20 CHANCEBT REPORTS. 

1859. sessed of a chattel leasehold interest, under the Bishop of Eilmore, 

CA« Appetd, 

'^«— -V — -^ in portions of the lands of Kildrumliftrtin and Eilnaleck, subject to 
In re 

ILAJSAUZE, A moiety of a yearly rent reserved thereout. By his marriage set- 
tlement, dated the 25th of April 1832, he assigned to the trustees 
therein named the lands of (amongst others) Eildrumfartin and £il- 
naleck, and all his estate and interest, benefit of renewal, claim and 
demand whatsoever, in and to the same, upon trust (subject to the 
payment of the rent and renewal fines, and to a life estate for him- 
self) that, in the event (which actually happened) of his own death 
in his wife's lifetime, and of the death of all the issue of the mar- 
riage unmarried and under age, then the wife should take a certain 
annuity out of the lands during her life, and, immediately upon his 
death in his wife's lifetime, then upon trust, subject to the wife's 
annuity, for such persons as he should by deed or will appoint. 

John George Lanauze subsequently made his will, dated the 19th 
of February 1834, whereby, after confirming to his wife the provi- 
sion made for her by the deed of settlement, he devised all his 
interest in the lands of Eildrumfartin and Eilnaleck, and certain 
other lands called Tonelyon and Coolkill, to his trustee and friend 
William 0*ReilIy, his executors and administrators, upon thist, 
^* First, that he (and, during the continuance of this present trust 
they idso) shall, from time to time, and at all times necessary, pre- 
serve my interest in all my tenant rights, by duly paying the head- 
rent due by me, and coming out of all my lands, to the proper 
landlords able to give good acquittances for the sum and sums 
respectively paid to them on the account of such head-rent ; and, 
secondly, that he and they, my said trustees, shall duly pay and 
satisfy, to the proper persons, all fines which shall have become due 
to, and remained claimable by, such persons respectively, for enti- 
tling my said trustee and trustees to obtain renewal or renewals of 
the interest in any of my said lands ; and that also they shall duly 
jpay all impositions, taxes and duties, of what degree or nature 
soever, lawfully and accustomarily levied out of all or singular my 
sidd lands, and likewise all other necessary and usual burdens affect- 
ing the same ; and, as a mark of my willingness to invite the said 
William O'Reilly to make this trust not unworthy of his acceptance. 



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CHANCERY REPORTS. 21 

I empower him to take and receive, from each and every one of my 1859* 

tenants of my lands, or to retain for his own nse, as fees for HBceiv- ^-^ v ■ ^ ^ 

In f€ 
ing my rents, the sum of one shilling for every pound sterling paid u^nau^b. 

as rent hy each one of my tenants. I nominate, constitute and 
hereby appoint my said friend William O'Reilly to be sole executor 
of this my last will and testament ; and I hereby give and bequeath 
unto him a sum of one hundred pounds sterling, as a mark of my 
confidence and faithful regard : also to my friend Edward Plunkett, 
of Dunowen, I give and bequeath the sum of two hundred pounds 
aterling. I give and bequeath to Peter Keogh, a servant now em- 
ployed in my business, a sum of thirty pounds sterling. I give and 
bequeath to Mathew Cumisky, my maternal uncle, a sum of one 
hundred pounds sterling ; and as to, for and concerning all the 
residue of my interest in my said lands, and as to, for and concem- 
' ing the residue, similarly, of my other personal estate and effects, 
but still subject to the hereinbefore trusts by this my last will 
declared, I hereby give, bequeath and devise all such residue of 
my interest in said lands, as also all such the residue of my personal 
estate and effects, in trust for my eldest and yet unborn son, hfs 
executors and administrators ; but I charge hereby the said lands, 
and the said residue of my said other personal estate and effiscts 
(if, besides such eldest son, I shall have also a younger child who 
shall be living after my death), with the sum of five hundred pounds 
for such younger child ; and, if I shall beget two such younger chil- 
dren, I hereby charge my said lands, and my said residue aforesaid, 
with the sum of eight hundred pounds, the same to be equally 
divided, share and share alike, between them, when payable under 
4hk my will. And, if I shall leave me surviving more than two 
younger children besides an eldest son, then (whatever may be the 
number of such younger children above such two) I charge my said 
interest in the said lands, and the residue of my said other personal 
estate, with the sum of one thousand pounds sterling, the said sum 
to be ^vided, share and share alike, amongst such younger children, 
being more than two in number, when their legacies shikll become 
demondable and payable to them under this my will ; and, more- 
over, I mean, order and 4iUrect that, in the event of my leaving two 



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22 



CHANCERY REPORTS. 



1869. 
Chn Appeal. 

In re 
I.ANAUZE. 

Statement. 



8Qch younger children, as herein aforesaid, as only issue, besides an 
eldest son, the share or legacy so meant for either of them dying 
unmarried and under the age of twenty-one years shall go over and 
survive to the other of them such two younger children ; but it is, 
notwithstanding, my will, and I hereby also ordain that, in the 
event of my younger child or children so dying unmarried and 
under full age (when the number of such younger children shall 
be more than two), no surviving younger child shall, by the death 
of any one or more of them, under such full age and unmarried, be 
. entitled to receive, in any manner, more than the sum of five hun- 
dred pounds ; but any possible surplus above such ^ve hundred 
pounds, for any such child as last mentioned, shall not be raised, but 
shall sink in my interest in said lands for their relief and ease. And 
further, if it happen that I shall die leaving no son, but shall die 
leaving an eldest or only daughter, then in trust, as to all such my 
interest in the said lands, and all the residue of such my other per- 
sonal estate and effects (charged in like manner as herein aforesaid), 
for such eldest or only daughter, her executors and administrators ; 
and, if I shall leave no daughter me surviving, or if all daughters 
me surviving shall happen to die severally under the age of twenty- 
one years and unmarried, then, and in such event, I give, bequeath 
and devise my interest in my said lands, and all the residue then 
remaining unadministered of my said personal estate and effect, to 
my nephew George Lanauze (the appellant), eldest son of my late 
brother William George Lanauze, deceased, when and so soon as 
my said nephew George Lanauze, aforesaid, shall attain the age of 
twenty-one years ; but, if he the said treorge Lanauze shall die 
without legally attaining such age, then I give and devise my inter- 
est in my said lands, as also all the residue of my said other personal 
estate and effects, to that child, be it male or female, of my first 
cousin George Lanauze (now residing in the East Indies), son of the 
late Andrew Lanauze, of Carrigan, in the county of Cavan afore- 
said, who shall first attain the full age of twenty-one years ; but I 
will, at the same time, and direct hereby, that all the intermediate 
rents and profits of my said lands, as well as of the residue of my 
said other personal estates and effects, which shall accrue, arise or be 



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Statement. 



CHANCERY REPORTS. 23 

made out of both the said funds durmg all the period, number of 1859* 
years and time which shall intervene between my said nephew's first w y ■/ 
becoming the next devisee of my said property, by virtue of this my lanauze. 
will, until such his death (if he shall so chance to die under the age 
of twenty-one years, as lately supposed), and also all the intervemng 
profits of the same lands, and of all the residue of my said other 
personal estates, deriving, intervening or in any manner accruing 
between the time of the death under age of my said nephew George 
Lanauze, and the coming to the age of twenty-one years as aforesaid - 
of the eldest child of my said first cousin George Lanauze, now 
residing in the East Indies, that all the said profits, subject only to 
the provision made for my said wife, Elizabeth Lanauze, by the said 
deed of settlement so executed upon, or previously to, our marriage, 
and to my debts and funeral expenses, and to the several legacies 
hereinbefore enumerated, shaU go and belong to, be retained, taken 
and recovered by the said William O'Reilly, to and for his proper 
use and benefit." Then followed a provision, empowering the trus- 
tee to make leases during the minority of such person as should, for 
the time being, be entitled under the will to the lands thereby 
devised. 

The testator made a codicil to his. will, dated the same day, 
whereby, in addition to the legacies bequeathed by the will, he 
bequeathed £60 to George Hines. 

The testator died on the 16th of January 1837, leaving his 
widow, Eliza Lanauze, afterwards the wife of Charles Malone, and 
one only child, a daughter, Mary Anne Lanauze, who was thereupon 
entitled, under the will, to said leasehold interest in the lands. 

On the 5th of February 1842, an order in Chancery was made, in 
the matter of Mary Anne Lanauze a minor, whereby it was referred 
to the late Master Henn to take an account, amongst other things, 
of the debts, legacies and funeral and testamentary expenses of said 
testator, and of the charges and incumbrances affecting his property. 
Under the order of reference, four of the legatees, namely, William 
O'Reilly, Edward Plunkett, Peter Eeogh and Mathew Cumiskey, 
filed charges, claiming their respective legacies ; but George Hines 
did not put forward any claim. Charles and Eliza Malone, on 



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24 



CHANCERY REPORTS. 



1859^ 

CA. Appeal. 

In re 
I.AIIAUZK. 



behalf of the minor, denied the fact of said several legacies being 
any charge or lien on said lands of Kildruinfartin and Kilnaleck, or 
tbd income thereof. 

On the 5th of November 1847, the Master made his report, and 
thereby stated that he had examined into the matters referred, in 
tbe presence of the respective claimants ; and the Master thereby 
found, amongst other things, several judgment and other debts 
affecting the testator's property, and also that the principal and 
arreflf of interest were due in each case of the legacies, except that 
Qjk George Hines, inasmuch as no claim had been laid before him in 
regard thereto; and the Master directed the surplus of all future 
it^Mits to be applied in liquidation of testator's debts, the several 
legattees under the will not being, in his opinion, entitled to any 
portion .of said rents. 

The several legatees took objections to the Master's report, which 
was, notwithstanding^ confirmed by an order of said Court of Chan- 
cery, of the 10th of July 1848, in the same matter, made upon due 
notice to all of the said legatees, none of whom Intervened on the 
OfDcasion, or ever took any further proceedings for the purpose of 
disputing the decision of Master Henn, or took any steps whatever 
for recovery of their respective legacies, until after an absolute order 
for sale of the said lands had been made in the Incumbered Estates 
Court. 

The minor, Mary Anne Lanauze, died on the 24th of February 
1851, under agia and unmarried, whereupon the bequest in petition- 
er'a favour came into effect. 

^ After the death of the minor, her mother, Eliza Malone, continued 
in possession of the lands, and in receipt of the rents and profits, in 
deroigation of the i^^lant's rights; who, on the 2nd of June 1853, 
filed a cause petition against Eliza and Charles Malone ; and, by a 
d^retal order in the cause of Lanauze v. Malone^ dated the 2nd 
of Pecember 1855, the petitioner was declcu^ entitled to the 
Imids. The appellant entered into possession, and, on the 25th of 
November 1856, filed his petition in the Incumbered Estates Court 
for a faje of said lands, for discharge of the incumbrances affecting 
them. Th». lands were sold on the 18th of January 1859; and, on 



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CHANCERY REPORTS. 



25 



the settliDg of the final schedule, Judge Longfield made an order, 
declaring, amongst other matters, that the legacies bequeathed to 
William CReillj, Peter Eeogh, Matthew Cumiskej and George 
Hines were charged upon the lands told in the matter ; and it was 
ordered that the legacies should l)e paid, with the arrears of interest 
for six years prior to the filing of the petition. 

From this order the present appeal was now brought, upon the 
ground that, upon the true construction of the will of John George 
Lanauze, the legacies in question were not charged upon the testa- 
tor's chattel interest in the lands ; and also, upon the ground that the 
legatees were bound by the report of Master Henn, confirmed by the 
decree of 1848. 



1859. 
Ch. Appeal. 
^- f ^* 

In r« 
LANAUZE. 

Stattment. 



^Ir. BrewiteTy Mr. J. E. Walsh and Mr. TudoTy for the appellant. 

It is admitted that, if a testator makes a common fund of his 
real and personal property, and, aftor bequeathing legacies, then 
bequeaths the residue of the whole common mass, every portion of 
that mass is subject to the legacies. But the testator, in the present 
case, has adopted an entirely opposite course ; for he has carefully 
kept the t#o funds distinct throughout the entire will. In such a 
case, a money le^tee cannot have recourse, for payment of a legacy, 
to a chattel real specifically devised : Davis v. Gardiner (a). The 
testator here had a perfectly legitimate reason for dividing his pro- 
perty into two classes, and keeping them distinct. He had already, 
by his marriage settlement, made provision for his wife, but not for 
children, and he was now by his will about to provide for his child ; 
and it is not likely to have been his intention that his child should 
not have his ob&ttel interest in the lands until the legacies had been 
satisfied out of it, a course which might have left her penniless. But 
this matter wad In fact res judicata. The report of Master Henn in ' 
1846, confirmed by the decree of 1848, was the decision of a Court 
of competent jurisdiction, by which the parties are now bound. 



Arffumeni. 



Mr. Sherlock and Mr. Bamill, for Myles William O'Reilly, the 
personal representative of the executor. 

(a) 2 P. W. 187. 
VOL. 11. 4 



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CHANCERY REPORTS. 



1859. 
Ch, AppeaL 

In re 
LANAUZE. 

Argument, 



Mr. F. Walshe and Mr. Purcell, for Greorge Hines» one of the 
legatees, and — 

Mr. John J7. Richards^ for another legatee. 

The legal intention of the testator was to charge the legacies 
upon his interest in the lands: Greville v. Brown {a) \ Scott v. 
Clements (b). Master Henn's report is not an estoppel. If the 
Judge in the Landed Estates Court thought the decision of the 
Master erroneous, he was not bound by it, nor are his legatees: 
In re Kelly {c). — [The Lord Justice of Appeal. That was 
the case of a decree prp confesso. — The Lobd Chancellor. It 
would tie the most inconvenient thing possible if, after a report such 
as that made by Master Henn in this case, the parties come forward 
now to establish their claims]. 



The Lord Chancellor. 

Judgment. j^ my opinion, it is very plain, on the construction of this will, 

that the legacies are not charged upon the chattel interest, which 
has been specifically devised. This was a particular case. The 
testator was possessed of a chattel interest in land, and also of other 
property of a purely personal character ; and he devised the chattel 
interest specifically^ for a distinct purpose, in the first instance, and 
then he devised the rest to a trustee, William O'Reilly, upon trusts 
which he specified ; and the very first of those trusts was, not to 
admiilister all the propeii;y in one common fund, but to preserve all 
his interests in his tenant rights, by payment of^ head-rent due by 
him, and to pay the renewal fines, and all taxes and duties levied 
out of the lands, and so on. He then gives the trustee £5 per cent, 
on the rents received by him, thereby showing that he meant hip to 
possess this chattel interest free from the^ legacies. Having done 
that, he then nominates the same William O'Reilly his executor, and 
gives him a legacy of £100, as a mark of his co;ifidence and regard, 
and he then bequeaths the legacies now in question. Now, if the 

' other legacies were charged on the chattel interest, so was the 

legacy bequeathed to O'Reilly ; and it certainly would have been a 

(a) 5 Jut., N. S., 849. (6) 8 Ir. Chan, Rep. I. 

(c) 9 Ir. Chan. Rep. 103. 



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CHANCERY REPORTS. 27 

strange inconsistency on the part of the testator to direct O'Reilly to 



1859. 

CA. Appeal, 



In re 



preserve the chattel interest in the way th^ testator has directed, 
and then to give him a legacy charged on that same chattel interest, lanauze. 
which would enable him to sell the property for the payment of that . -^ 
legacy. All through his will the testator has taken care to keep a 
distinct line between his chattel interest and the rest of his personal 
property. He then devises the residue of his property in the follow- 
ing way :-t" And as to, for and concerning all the residue of my 
interest in my said lands, and as to, for and concerning the residue 
similarly of my other personal estate and effects, but still subject to 
the hereinbefore trusts, by this my last will and deed, I hereby give, 
bequeath and devise all such residue of my interest in said lands, as 
also all such the residue of my personal estate and effects, in trust 
for my eldest and unborn son ; " but he charges *' the said lands, and 
the said residue of my said other personal estate and effects " with 
certain charges for younger children, which charges he calls legacies. 
Kow, if the testator supposed that the legacies given by his will 
would have been charges on the chattel property, there would have 
been no need for him to give this specific direction as to the charges , 

or legacies for his youngeir children. There is not a single clause in 
[this will making this chattel interest into a common fund. Master 
Henn's decision is an authority for the opposite view. I am, for my 
part, quite satisfied to abide by the older decision of the ofiicer of 
this Court, although it does happen that a Judge of the Landed 
Estates Court has come to a different conclusion. It is said that 
the decisions of the Court of Chancery in minor matters are not 
binding. Perhaps that may be true, in a certain sense, inasmuch 
as the minor would not be bound, if he did not choose to adopt the 
decision. Lord Manners refused. In re Burke a minor (a), to allow 
executors, on motion^ to account before the Master for property 
which the testator had bequeathed to minors, on the ground that 
the account so< taken would not be binding on the minors, there 
•being no suit pending in Court to which they were parties. But, 
if the minor does adopt such decision, it then, I apprehend, becomes 
binding upon all parties ; and, unquestionably, \^here parties have 

(a) 1 B. & B. 74. 



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CHANCERY REPORTS. 



1859. 
Ch, AppeaL 

^ In re 
JLANACZE. 

Judgment. 



thus come before the Master^ and have acquiesced in his decision, 
wliich the minor has also adopted, it would require a strong author- 
ity to induce me to hold that they are not bound thereby. 

It has been urged that the Judges of the Landed Estates Court 
have power to investigate a decree of the Court of Chancery, and to 
refuse to act upon.it, if they come to the conclusion that it was 
erroneous ; and the decision in Kelfy v. Kelfy (a) has b^n cited in 
support of that proposition. Kelfy y. Kelfy does not decide any 
such thing, and, if any idea to that effect exists, the sooner such an 
idea is dispelled the better. The decree in Kelfy v. Kelfy^ in the 
Court of Chancery, was a decree />ro confesso^ which b always of an 
ex parte character ; moreover, it was a decree for a receiver ; but 
no sale of the lands was ordered. The Commissioners of the 
Incumbered Estates Court had full power to construe that decree, 
and tliat was all they did; it was merely the case of putting a 
construction on a decree. The Loud Justice of Appeal, in his 
judgment, confined himself to that point. There is a great 'deal of 
other matter in the report, which may perhaps be considered as 
extra-judicial, and by which I certainly should not feel myself 
bound, if it means that the Judges of the Landed Estates Court 
have authority to examine and go behind a final decree of the Court 
of Chancery. The 42nd section of the Incumbered Estates Court 
Act (12 & 13 Via^ c. 77) plainly shows that where there is a final 
decree of the Court of Chancery, which would be binding on the 
parties in this Court, that decree would be equally binding on the 
Commissioners of the Incumbered Estates Court. I do not think 
that, upon such a decree of the Court of Chancery, any question 
can even be raised in the Landed Estates Court, except for the 
purpose of construing that decree ; and I am quite sure that, in 
Kelfy V. Kelly ^ the Commissioners of the Incumbered Estates Court 
did not mean to do anything more. The ruling of the Court below 
must be reversed. 



The LoBD Justice of Appeal. 

I entirely concur in the construction which has been given to the 

(a) 9 Ir. Chan. Bep. 103. 



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CHANCERY REPORTS. 



^9 



will by the Lobd ChanceLuor; and I shall only add that, with 1859. 
respect to the case of Keliy y. KeUij, all that was dotoe by the ^^'^PP^^{ ' 
decree of the Court of Chancery was to appoint a receiver, and 
the Incumbered Estates Court construed tliat to be a decree for 
a sale. This Court merely reversed the construction which the 
Commissioners of the Incumbered Estates Court had given to the 
decree of the Court of Chancery. 



Ih re 
LANAUZE. 

JadymenL 



In re HARDING'S ESTATE. 



1860. 



Bt indenture of 20th of July 1765, Theobald Wolfe demised to By deed of 

William Harding the lands of Derryhiney otherwise Castlefarm, at ed a'perpetual 

a yearly rent, for three lives renewable for ever. charge "of 

By deed of 20th of July 1769, made between the said William ^ut^f^^ 

Harding and Henry Harding his eldest son, of the first part, George Mm Vot *tfii^ 

Harden and Anne Harden his daughter, of the^second part, William HT^* P®n>^ 

Harden and Thomas Gee, of the third part, being the settlement That deed was 

^ lost ; but It ap- 

executed on the marriage of said Henry Harding with said Anne P«&red> from a 

memorial 
Harden, said William Harding (among other things) granted a per- thereof, that A 

had graoted to 
petual yearly rentcharge i)f £134 of the then cuiTcncy of Ireland, to* B and C, for 

be issuing and payable out of said lands. tioned in i&e 

The petition of appeal stated that this deed was not forthcoming, rentchai^e of 

and could Jiot be procured, notwithstanding diligent search ; but that ifs^g^^out^f 

it appeared, from the memorial thereof, that William Harding, for The"reit-"^ 

the considerations therein mentioned, had granted and confirmed c^i?J8® ^«f 

° paid by the 

onto William Harden and lliomas Gee (trustees), for the uses and owners of the 

lands from 
purposes in said deed mentioned, u yearly rentcharge of £134, for 1769 down to 

ever, to be issuing out of the said lands. . petition was 

presented to 
tlie Landed 
Estates Court for a sale of the rentcharge. — Held (oyerroling a decision of a J^dge 
of the Landed Estates Conrt), that the memorial, coupled with eTidence of the pay- 
ment of the rentcharge down to 1861 1, was sufficient evidence of a perpetual subsist- 
ing rentcharge, so ais to enable the Court to sell. 



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CHANCERY REPORTS. 



1860. 
Ch. Appeal, 

In re 
HARDING. 

Statement. 



William Harden, one of the trustees in the deed of 1769, died on 
the 11th of August 1779, and Thomas Gee, the other trustee, died 
in 1785. 

By articles of agreement, dated the 9th of July 1792, and exe- 
cuted on the marriage of William Harding, the eldest son of said 
Henry Harding, with Miss Elizabeth Holmes, made between said 
George Harden, of the first part, said William Harding, of the 
second part, said Elizabeth Holmes, of the third part, and Peter 
Holmes, jun., Alexander Holmes, Samuel Middleton and William 
Poe, of the fourth part, it was, among other things, recited, that 
said William Harding was entitled to said rentcharge, which .was 
therein described as "the perpetual rentcharge of £134, chargeable 
and issuing out of said Castlefarm of Derrihiney ; " and same was, 
with certain lands therein mentioned, settled to the use of said 
William Harding for life, with remainder, subject to a jointure of 
£200 a-year for G^id Elizabeth, to the use of William Poe and 
Samuel Middleton, for a term of 200 years, the trusts of which term 
were thereby declared to be to raise, in the manner therein men- 
tioned, a sum of £2000, as portions for the younger children of said 
marriage. There was issue of this marriage an eldest son, George 
Harding, and eight younger children, of whom the appellant was 
one. 

William Harding, who was the grantor of said rentcharge, and 
owner of said lands whereon same was charged, and who regularly 
paid said rentcharge during his life, by his will, dated the 1 3th day 
of March 1773, devised all his estate in said lands to his second 
son, Jonathan Harding, and died previous to the year 1777, leaving 
said Jonathan surviving, who thereupon entered into possession of 
said lands, and thenceforth during his life regularly paid the. rent- 
charge. He died in 1815, leaving Jonathan Harding his eldest son 
and heir-at-law, who thereupon entered into and continued, and was 
at the time of this appeal, in possession and receipt of the rents and 
profits of the lands, and had regularly paid the rentcharge. By his 
marriage settlement, dated the 18th of July 1816, the lands in ques- 
tion were conveyed to the use of Jonathan Harding for life, with 
remainder, subject to a jointure, to the use of the issue of the 



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CHANCERY REPORTS. 31 

marriage, in such shares and proportions as he should by deed or 1860. 

Ch. Appeal. 

wUl appoint. — — V ' 

In re 
By deed of appointment, dated the 27th day of March 1834, harding. 

which recited the last mentioned settlement, and the power given « "J . 
thereby, Jonathan Harding appointed one undivided third part of 
the lands to the use of Frances Harding, his daughter, and her 
heirs, for ever, and thereby declared and appointed *' that the only 
incumbrance to be paid out of said third part of said lands thereby 
appointed shall be, one-third of an annuity or yearly rentcharge 
of £134 late currency, now affecting and charged on said lands.'^ 
The^rentcharge had thus been regularly paid by the owners of the 
lands from the year 1769. , 

From the year 1777 to the year 1815, the lands were held by 
Jonathan Harding,^ second son of William Harding, the lessee in 
said lease, and grantor in the deed of 1769, as owner in quasi fee, 
and were not, during that period, affected by settlement, but de- 
scended to his eldest son, Jonathan Harding, as his heir-at-law. 
A petition having been presented by Peter Holmes Harding, the 
appellant, to the Landed Estates Court, for sale of the rentcharge, 
for discharge of the incumbrances affecting it. Judge Dobbs, on 
the 14th day of May 1860, made an order declaring that there was 
not sufficient evidence that the rentcharge of £134 was then a 
subsisting rentcharge, inasmuch as the memorial of said deed was 
the only evidence of its contents laid before the Court; and 
it appeared that the rentcharge was not then a charge on the 
lands, having expired on the death of the survivor of the grantees, 
William Harden and Thomas Gree ; and the Court declined to ap- 
prove of the title to the said rentcharge as a good title, until further 
and sufficient evidence should be produced, that the same was then a 
subsisting- rentcharge on said lands. 

From this order Peter Holmes Harding now appealed ; on the 
grounds, first, that the memorial of the deed of 1769 was good 
secondary evidence that a perpetual yearly rentcharge of £134 was 
granted by said deed, and was thereby charged on said lands. Secondly, 
that the memorial, coupled with evidence of the uninterrupted 
receipt of the rentcharge, from the execution of the deed of 1769 to 



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CHANCERY REPORTS. 



1860. the time of presenting the petition, hy the persons claiming under 
« vJ^.^£!!L the deed, was good ; secondary evidence of a perpetual rentcharge 
having been thereby created, and of such rentcharge being still sub- 
sisting. 



In re 
HARDING. 



Staiemmt^ 



ArgtimenU 



Mr. Serjeant Lawson and Mr. E. M. Kelly ^ for the appellant 
Under the 43rd section of the Landed Estates Act (21 and 22 
Vic. c. 72) the Court had clearly jurisdiction to sell. The memorial 
of the deed of 1 769» coupled with the evidence of payment of the 
rentcharge since then down to tlie present time, made by parties 
whose interest it was to resist this claim, is ample evidence thfX it 
was a perpetual rentcharge, still subsisting. Sadlier v. Biggs (a) 
is in point. In that case. Lord Cran worth in his judgment said 
(p. 455) : — *^ It appears to me that there are the most satisfactory 
circumstances tending to show what the rights of the parties are : 
these are, long enjoyment, the same dealing with the property for 
a very great period, during the whole of which it was the interest 
of one party to resbt that which, nevertheless, he from time to 
time performed." 

There was no appearance in support of the order of the Court 
below. 



The Lord Chancellor. . 
Judgment. ^^ ^ clearly a mistake tOi say that the memorial is the only evidence, 

for the payment of the rentcharge during so long a period is cer- 
tainly evidence also. We are of opinion that there is evidence in 
this case for a perpetuiEd ^subsisting rentcharge, quite sufficient to 
warrant the Court in aelling. The order of the Court below must, 
therefore, be reversed. . . , 

The Lord Justice of Appeal concurred, 
(a) 4 H. L. C. 435. 



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CHANCERY REPORTS. 33 



1859. 
Chancery, 



MALONE V. HARRIS. 

(In Chtincery,) 

June 3, 8, 16. 

This case came before the Court upon a cause petition and affida- ^^® owners of 

a theatre, by 

vits. The following were the material facts of the case: — By deed bearing 

date in 1839, 

letters patent of the 16th of May 1820, made in pursuance of made for yaln- 

26 G. 3, c. 57 (Ir.)^ the Crown empowered Henry Harris to estab- tion, covenant- 

lish a theatre in Dublin. Henry Harris proceeded to erect a theatre' to certain d^ 

in Hawkins'-street in the city of Dublin ; and by deed of the 4th ^^^ p^^ 

February 1822, he assigned to William Moore and William Lau- lege of free ad. 

•^ ' ^ mission to the 

rence Bicknell the Hawkins'-street premises and the letters patent, th'totre. The 

petitioner waa. 
upon trust to secure the payment to George Bicknell of two an- entitled, as one 

of the deben- 
nuities of £700 and £300 per annum respectively, which were therein tore holders, to 

granted. New letters patent -were subsequently obtained, on the the deed of 

surrender of those of the 15th of May 1820, and the new patent and sequenthr* bst 

the Hawkins'-street premises were duly vested in Samuel Beasley and ^i^[ ST"^' 

William Laurence Bicknell, in trust to secure the said annuities to ^P***^*!?^' be- 
came lessee of 
George BickneD. «he theatre, 

' with notice of 
On or about the 1st of November 1820, Henry Harris, in order to the deed of 

1839. — ire% 
.raise the sum of £10,000, proposed to issue fifty debentures for that the peti- 

£200 each, such debentures to be chargeable upon the theatre, the entitled specip 

patent, and the theatrical property, to carry interest at the rate of f^^ agaiMt 

£3 per cent, per annum, and to confer on the holder of each deben- [hep^egeof 

ture a right to a free ticket of admbsion, transferable- at the free admission 
^ ' created bv the 

commencement of each season. Many of such debentures were deed of 1839. 
accordingly issued. In 1825, Henry Harris, by deed, conveyed all Suuemenu 
his interest in the theatre, &c., to trustees for the debenture holders. 
This deed contained a schedule of the debenture holders, amongst 
whom the petitioner was included as holder of one. In 1826, the 
petitioner purchased a second debenture, and received a certificate 
as entitled to the benefit of the two. 

VOL. 11. 5 



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CHANCERY REPORTS. 



1869. 
Chancery. 




Statement, 



On the 3l6t of May 1839, in consequence of difficulties which had 
arisen respecting the debenture holders, their rights and priyileges, 
a deed was executed, of that date, between Henry Harris of the first 
part, the representatives of the said George Bicknell of the second 
part, the said Samuel ^Beasley and William Laurence Bicknell of 
the third part, George WUliam Bicknell of the fourth part, John 
William Cole of the fifth part, and the debenture holders who 
should execute the same of the sixth part. The petitioner was one 
of the executing debenture holders. By this deed the debenture 
holders released all claims for interest on their debentures ; and in 
consideration of this it was provided that the holders of debentures 
should have a right to free admission to the theatre for themselves, 
' and should also have a right to issue certain tickets for free admission 
for others. 

The respondent, John Harris, obtained a lease of the theatre 
from the representatives of Greorge Bicknell, with full knowledge 
of the deed of 1839 ; and on the 24th of September 1854, he issued a 
circular by which he required the debenture holders to produce 
their debentures for inspection, in order that the names of the holders 
might be registered. 

The petitioner alleged that he had lost his debentures, and was 
consequently unable to produce them. The respondent then refused 
to permit the petitioner to exercise any of the privileges of a de* 
benture holder, and the petitioner brought an action in the Court 
of Queen's Bsnch against the respondent for such refusal, which* 
terminated in a vei*dict and jtldgment for the respondent. The 
petition prayed for a declaration that he was entitled to the two de- 
bentures and the privileges flowing from them, and that the re- 
spondent might be restrained from obstructing the exercise of the 
rights conferred by deed of the 31st of May 1839, on the petitioner, 
as a debenture holder. 



Mr. Hughes, Mr. Robinson and Mr. Purcell, for the petitioner. 
Argument, ^^ ^^^^ ^^ remedy at Law, considering the form of this deed and 

the title of Harris. The debenture or scrip itself could confer no 



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35 



right of entry on anyone. Taylor v. Watson (a), as explained and 
modified by Wood v. LeadbiUer {b\ Duke of Devonshire v. Eglin {c\ 
and Powell v. Tkomas (d)^ show how the Court will assist a merely 
eqnitable right grounded on acquiescence. The respondent himself 
has neyer disputed our right, provided we produce the particular evi- 
dence of it which he requires. In the year 18399 great pains were 
taken by the then lessee, with whom the present respondent is in 
privity, to find the real owners of the debentures, and the peti- 
tioner's right was then admitted. There has been, therefore, a con- 
tinued user of this right during all this time ; and the i*cspondent 
admits that on his purchase he knew of the claim, and of the deed 
of 1839» by which the owners of the legal estate in the theatre 
covenanted that the petitioner and persons situated like him should 
have a right of entering. Such a covenant will be enforced in 
Equity, whether at Law it runs with the land or not : Tulk v. Mox- 
kay{e). 



1859. 
Chancery, 




Argmuni, 



Mr. Brewster and Mr. Exham^ contra. 

In this case the question between the parties is concluded by the 
decision in the Common Law Court. The principle of Tulk v. 
Moxkay does not apply. That certainly does decide that, in a 
certain class of cases, this Court will give relief to a covenantee, 
without reference to the question whether at Law his covenant would 
run with the land or not : but these are all cjtses where there is a 
stipulation with the owner or lessee of certain property, that certain 
neighbouring property shall be or shall not be used in some parti- 
cular way, as in that very case of Tulk v. Molehay (f)^ where the 
agreement Was to keep a square garden in a neat state ; or the cases 
of Whatman v. Gibson (g), Schreier v. Creed (h\ and Mann v. 
Stephens (i), where there were covenants respecting building. These 
depend on the injury to the covenantor being incapable of compen- 
sation by damages, and the right confeiTed being much in the nature 

(a) 7 Taont. 874. (6) 13 M. & W. 83a 

(c) 14 Bcav. 530. (<0 6 ^^' 300. 

(0,2 PbiL 774; S. C. 18 Law Jonr., Ch^ N. a, 83. 
092Phn.777. 0^)9SiiiL 196. 

(A) 10 Sim. 85. (0 15 Sim. 879. 



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CHANCERY REPORTS. 



1869. 
Chancery. 




ArgwmeiU. 



of a covenant. It is not, however, laying down the rule too broadly 
to say that where damages will compensate, as they will here, for 
the loss is only the price of admission, this Court will not interfere. 
The contract here is so merely personal, that it is not a case for 
specific performance : Attorney-General v. The Sheffield Gas Con* 
sumers* Company (a) ; Keppel v. Bailey (b) ; Collins v. Plumb (c). 



The Lord Chancellor. 
Judgment. The claim of the petitioner in this salt is not to realise a pecuniary 

demand. This has been expressly relinquished ; the suit is alto- 
gether confined to the assertion of the right of free admission to the 
Theatre Boyal for the petitioner and others, under his orders, by 
virtue of the deed of 1839, referred to in the petition. The re- 
spondent is not a party to this deed ; he is not in privity with the 
petitioner, either by estate or by contract, and the petitioner has 
failed to establish his alleged right at Law, which has been dis- 
affirmed in the action. His present demand is, therefore, consequent 
on the disaffirmance, not on the establishment, of a legal right By 
the judgment at Law he is now concluded in the several matters 
which were expressly put in issue in the action ; the findings of the 
jury and the judgment of the Court of Queen's Bench are matters 
of record, and not open to be controverted. How then could I de- 
clare the petitioner to be the owner and proprietor of the debentures, 
or make any other declaration of right, in defiance and denial of the 
judgment at Law ? Supposing, however, that this barrier could be 
removed, and that, on the true construction of the; deed of 1839» I 
might hold that the personal right of the petitioner was secured by 
covenant, can I say that this covenant is so binding in Equity on 
the present respondent that I could graitt the relief sought by the 
petitioner ? 

It could not be said that there is to be found in this deed 
any covenant running with the land on which the theatre had 
been built. Has any equity been fastened on the premises by the 
lessors of the lease under which the respondent derives ? In my 

(a) 3 De G., M. & Gor. 320. (6) 2 M. & K. 547. 

(c) 16 Ves, 454. 



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37 



opinion there has not ; the privilege conferred, and the provi- 
sions by which such privilege is secured, are simply personal, and the 
respondent onght not to be bonnd by obligations which he has not 
contracted to fulfiL The cases which were cited on behalf of the 
petitioner, with a view to famish a principle for my guidance, do 
not seem to me to be at all applicable to the facts of this case. In 
one of them, The Duke of Devonshire y. Eglin(a)f there was a 
complete executed agreement, which had been made for valuable 
consideration, the benefit of which had been enjoyed for upwards of 
ten years, and one party could not be allowed to defraud the other 
of the advantage of the contract. Equity will sometimes mature 
partial into complete performance, and will not allow what has been 
done in good faith to be undone against good faith. Where the 
parties cannot be restored to their original relative position, neither 
party will be allowed to rescind the contract, against the will and 
to the prejudice of the other. , Where part performance ought to be 
completed, complete performance^ ought not to be rescinded. The 
case of Powell v. Thonuu (b) is open to a like comment. Indeed 
there is a class of cases well known, in which a person who may be 
said to have encouraged an act to be done cannot afterwards be 
allowed to interfere with the enjoyment of what he has thus deli- 
berately sanctioned ; he shall not derogate from the just and full 
effik^t of that acquiescence, which must be supposed to have been 
intended, as it was calculated, to induce the doing of the act, which, 
when done, is complete and irreversible. 

It occurred to me, after the case had been argued, that it 
was deserving of consideration whether the doctrine of Tulk 
V. Moxhay{c)y and the cases of the same class, might not be 
applicable, and I brought these under the notice of the Bar, 
so as to afford an opportunity for any comment which might 
seem proper. I am well satisfied that a Judge should never decide 
a case on any ground not noticed at the Bar, nor on any authority 
which he may have discovered, without giving the Counsel in the 
cause the fullest opportunity of offering such observations' as they 
think the matter may require. I derived much assistance from the 

(a) 14 Beav. 530. (6) 6 Hare. 300. - 

(c) 2 PhiL 774. 



1859. 
Chancery, 




Judgment, 



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CHANCERY REPORTS. 



1869* 
Chancery, 




Judgment, 



comment of Mr. Brewster on the class of cases to which I have just 
adverted, and to which exclusivelj lie confined Iiimself in the second 
argument which I heanl. These cases establish this, that there may 
be an equity affecting the land and flowing out of a covenant, which, 
through the medium of notice, may affect the conscience of a party 
who would not be bound at Law Ity privity of estate or of contract. 
The reason of this rule of Equity is explained by Lord St. Leonards 
in the Treatise on Vendors (a). 

In tlie well-known judgment of Lord Brougham, in Keppel v. 
Bailey {b\ an instructive exposition is given of the doctrine of 
binding an estate by covenants ; in connection with this, the valu- 
able comment of Lord St. Leonards should be read. It is not 
by reason of notice simply and merely that a covenant is made 
to bind in Equity; there must be an equity so annexed to the 
land that the covenant becomes obligatory on the conscience of 
the proprietor of the estate. A party deriving under the propri- 
etor^ with notice of the covenant, ^ill then be restrained by a Court 
of Equity from doing an act which would leave the party under 
whom he so derives exposed to an action for breach of the cove- 
nanty and especially so where, from its peculiar nature, damages 
would not afford an adequate remedy. But, in the present case, 
it may well be asked, where is the covenant in the deed of 1839» 
by which an equity is annexed to the premises demised to the 
respondent by the trustees? 

The debentures originally issued were founded on a two-fold 
right. Tliere was the repayment of the sum advanced, with interest 
in the meantime; there was the right of free admission to the 
theatre by tickets. This latter claim is what is now sought to be 
enforced. It originated in what was supposed to be the law, as 
decided in Taylor v. Waters (e), a case subsequently questioned on 
several occasions, but at last deliberately overruled by the well- 
considered decision of the Court of Exchequer in England, in Wood 
V. Leadbitter {d). The right of admission is but a license to enter 
on the premises of the licenser ; there is not any grant of an interest 

(a) Vol. 3, p. 485. lOth ed. (6) 2 Myl. & K. 617. 

(c) 7 Taunt 374. 

(lO 8 M. & W. 838; see also Hewitt v. Isham (7 Exch. 77). 



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CHANCERY REPORTS. 



in Uie subject of the license. It was stated by Mr. HugheSy on 
behalf of the petitioner, that his case would be concluded at Law 
by Wood v. Leadbiiter. If so, where is his equity to be found ? 
If tliis be a license to enter upon the premises, in which it grants 
nothing by way of interest, but is simply a license for pleasure, 
there is nothing to attach an equity to tlie premises in tlie occu- 
pation of the respondent. I agree with Mr. Hughes^ that at Law a 
license only has been conferred or secured under t]ie covenant of 
Mr. Bicknell. It purports to be assignable ; but it seems to me 
neither to be assignable nor transferable. In ShephercTs Touch- 
Mione (vol. 1, p. 239) it is said: — *' Licenses and authorities are 
grantable at first for the lives of the parties, or for years ; but the 
grantees of them cannot assign them over." In accordance with the 
decision of Taylor v. Waters^ it was supposed that the privilege 
would be quite as lasting as the debentures, and might be as readily 
transferred; and the deed of 1839 deals with this privilege as a 
right in perpetuo belonging to the debenture holder, his representa- 
tives and assigns. There is a case in the Year Book, 1 1 Hen. 7, 
f. 86, which is cited in Wickham v. Hawker (a), in which it is said, 
of a license to a man and his heirs to come and Iiunt in the park of a 
licenser, that this must be by deed, " for a thing passes by the license 
which endures in perpetuity." But, in Com. Dig.^ tit. Chase H, 1, 
it is shown, hy a reference to Manwood^s Forest Law^ that such a 
license implies a right to killing and carrying away the game which 
might be hunted, and thus, in reference to the subject-matter of the 
license, it is coupled with an interest. In the present case, there 
seems to be nothing on which the license can operate so as to confer 
an interest in the subject-matter. It is simply a right of free entry 
for pleasure, granted for pecuniuy consideration ; and so the case is 
governed by Wood v. LeadbiUer, and especially as that case is 
explained in Taplin v. Florence (b). Tlie distinction should always 
be noted between a mere license and a license either expressly or 
impliedly coupled with an interest A further distinction is import- 
ant, between a license to do an act on the land of the licenser, which 
should be granted by a deed, and a license to do an act on the land 
of the party to whom such license is given, which act he might have 
(a) 7 M. & W. 79. (6) 10 C, R 744. 



1859. 
Chancery. 

V— V— ^ 

MALONE 

V. 
HARSIS. 

JudgimmU. 



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40 



CHANCERY REPORTS. 



1859. 
Chancery. 




Judgment. 



done without the Ucense, were it not for some easement connected 
with the property of the party who has given the license. The 
general rule is that sucli a license, though given hy word only, 
when acted on cannot be revoked ; but in anywise, where the with- 
drawal or revocation of the license would amount to a fraud on a 
licensee, a Court of Equity will interfere. A license may confer a 
right in the nature of an easement ; and, in the learned treatise of 
Messrs. Gale S^ Whatley^ p. 10, it is stated that ''Many personal 
rights which, in their mode of enjoyment, bear a great resemblance 
to easements, as, for instance, rights of way, may be conferred by 
actual grant, independently of the possession of any tenement by the 
grantee ; but such rights, though valid between the contracting par- 
ties, do not possess the incidents of an easement. In case of disturb- 
ance of a personal right thus given,' the remedy would appear to be 
upon the contract only." The case of Caicrqft v. West (a), which 
relates to this theatre in some degree, sustains the proposition that, 
as a licensee, the petitioner has no locus standi in a Court of Equity. 

It was admitted, by the Counsel for the petitioner, that no prece- 
dent could be found for the relief sought under such circumstances. 
I would not be deterred by the absence of precedent, if I could dis- 
cover a principle clearly established, and capable of being safely 
applied to the admitted facts before me. But I think it would be 
without precedent, and against principle, to give the relief required 
by the petitioner, who must resort to the covenant^in the deed of 
1839 for whatever relief he can obtain ; in this Court, I can give 
him none. 

It is not necessary to advert to other views of the case, nor to say 
whether the respondent might not resist this claim, as in substance 
a suit for specific performance ; or on the ground of the great incon- 
venience and hardship to which he might be exposed, if such a 
claim as that which has been put forward by the petitioner should 
be allowed. 

On the broad principles which I have stated and explained; I 
think I am bound to dismiss this petition ; and of course I dismiss it 
with codts. 

(o) 2 J. & L. 123. 

Beg. Lib. 26,/. 51. 



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CHANCERY REPORTS. 41 



1860. 
Chancery. 



DALY V. THE ATTORNEY-GENERAL and others. 

June 15. 

The Rev. Skeffington Preston, by his will, bearing date the 16th A testator. 

being j^ossess* 
day of June 1843, after reciting that he was possessed of certain ed of £4000 

stock, be- 
bonds for the respective sums of £1428 and £1500, and of a sum of qaeathed 

£4000 old £3^ per cent. Government stock, gave and bequeathed an indiyidnaL 

the said securities, and all money due thereon, to James Daly, after- remainder he 

wards Lord Dunsandle, and the Hon. Bowes Daly, on trust, to pay Jj^^^^^^f ^^ 

the yearly income thereof to the testator's two sisters, share and ^«>te8tant 

share alike, during their lives, and to the survivor of them djuring I*eter*s parish, 

' ^ ' *^ and another 

her life; and, after the death of the survivor, he declared that the ^1000 for the 

use of the 
pecuniary legacies in his will mentioned should take effect (save school attach- 

. edtotheEpis- 
some small pecuniary legacies, which were to be paid within six copal chapel 

in B.-street. 
months after his decease). He then bequeathed to Bowes Daly The chapel in 

£2000 of the said stock ; and he left and bequeathed, for the use of,Q^ school at. 

the Protestant school belonging to the parish of St. Peter's, in the B.^^et^ww 

city of Dublin, the sum of £1000 of said stock; and he left and p^^.J^^^J^^ 

bequeathed, " for the use of the Protestant school attached to the ^^*^' ^^ ^ 

gard to the 

Episcopal chapel in Upper Baggot-street, Dublin, the sum of £1000 second £1000, 

the will show- 
of said stock." And all the remainder of his property he gave and ed a general 

'^ ^ '' ^ charitable in- 

bequeathed to his sisters, and the survivor of them, for life ; and, tention, which 

might be exe- 
after the decease of the survivor, he gave it to Bowes Daly ; and he cated cy pres, 

appointed the said Bowes Daly and James Daly executors of his Protestant 
will. On the 23rd of January 1844, the testator died; and the said Peter'spiuTsh; 
will was afterwards duly proved by the executors. It appeared that fJJ^^' ^ JJ^ 
there was, at the testator's death, and had been for a long period ^^^^ ^^ set- 
previously, and continued to be at the time of the filing of this accordingly. 

The costs, 

petition, a Protestant school, for the education of the parishioners down to and 

of St. Peter's parish, in connection with the parish church of St. hearing,^ or-^ 
Peter's. There was also an asylum or institution in Upper Baggot- p^douU)f the 
street, for the reception of penitent females, and, in connection ^^g*^°® j. J^^ 

reference to be 
borne by the fund. 
VOL. 11. 6 



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42 



CHANCERY REPORTS. 



1860. 
Chancery* 

N- , » 

DALY 

v. 

ATTORNBT- 
OENEBAL. 

Statement. 



therewith, an Episcopal chapel ; and it appeared that the testator 
was in the habit of attending Divine Worship at that chapeL There 
was another Episcopal chapel in Baggot-street. This chapel, and 
the institntion with which it was connected, were vested in certain 
trustees, under the provisions of a certain deed of trust, bearing 
date the 18th day of February 1835. The institntion was supported 
partly by subscriptions, and partly by the pew-rents of the ohoreh, 
but principally by the industry of the inmates of the institution* Ko 
school, in the proper sense of the term, was attached to or con- 
nected with the chapel or institution. 

The present petition was filed by Mr. Bowes Daly (Lord Don- 
sandle having died), sobtnitting that the bequest for the use of 
the Baggot-street school failed, for i^ant of an object ; and that the 
sum of £1000 intended for it was not devoted to general charitable 
purposes, and that, therefore, it fell into the residue bequeathed 
to Bowes Daly ; and praying the decision of the Court, and that 
the trusts of the will, so far as concerned the two sums of £1000, 
might be performed. The respondents named were the trustees of 
the Baggot-street institution, ^e incumbent of the parish of St. 
Peter's, and the Attomey-Greneral. 



Mr. Brewster and Mr. Oeorge May^ fat the residuary legatees. 
Argument. On the statement of the trustees of the institntion in Upper 

Baggot-street, there does not exist any such charity as a Protestant 
school attached to their chapel. Considering what a school is, it 
would be too great a stretch of language to hold that this establish- 
ment for the benefit of a certain class of females could be deemed a 
schooL It cannot be so described, if there be not an organised 
system of teaching or telLchers attached. It is not possible to say, 
therefore, that this establishment is within the scope of the bequest 
or the terms of the will. Then the question is, whether the bequest 
&ils altogether, or can be worked out by this Court, cy pres^ on the 
doctrine that a charitable bequest will not be allowed to fail fbr want 
of an object ; but the rule is established, that that can only be done 
where the testatof appears to have had a general intention to make 
a charitable bequest, and that, when he seems only to have had a 



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CHANCERY REPORTS. 



43 



pMticalAr chgritj in view, if the beqnest is for any reason invalid, t|ie 1 860. 

legacy lapses. The mode of the gift here makes no difference ; the ' — ^!^]Lf 

snras hoiag all speoifieallf appropriated, it is as if he had mad^ ^ 

different bequests of £1000 eaek It makes no difference, his haying ATTOKHsr- 
pot them together in the first instance : Attomey^Genend v. 
Hmrsi (a) ; Attomey^General v. GoUing {b) ; Carberry y. Cox (e) i 
Au^tmey-Gemral y. Ironmongers Comf^my (<0* Of course, as the 
rest of the estate is in no way inyolyed in this qoestion, the costs of 
this matter, relating exclosiv^y to this fnttd, most he borne by it. 



a|£N£RAL. 

ArgvmetU. 



Mr. R. B. Warren and Mr. Franks, for the tmstees of the Pro- 
testant Episcopal chapel in Upper Baggot-street. 

This institotion may fiuriy be deemed a school. It is a house 
for discipline and instraetaofi % at any rate there \b enough to sh<>w 
that this bequest ou^ to be carried out as a charity ; and, if 
so, the Coort will give it to this institution : Loioombo y. Win- 
iermgham (s) ; In re Clergy 8oeiety(fJi Hester y. Tregoe(g). 
As for the costs, the invariable rule is, that the residuary legatee 
bears all the ^eoets of determining the construction of a will. 

lir. Francis Brady, for the rector of the parish of St. Peter's. 

Mr. C<issidy, for the Attomey-Creneral, submitted that there 
was such an indication of a general charitable intention, that the 
Court would carry it out ey pres. 



The Lord Chancellor. 

I am not satisfied in this case that, on the materials before me, 
I could say that this institution comes witiiin the description of a 
school annexed to the Episcopal chapel in Upper Baggot-street, 
according to the provisions of the trust deed, llie chapel seems 
rather to be annexed to the school, or the establishment contended 
to be a school. I think it is better that some points of evidence 



(a) 2 Cox, 3fi5. 

(c) 3 Ir. Chan. Bep. 213. 

(e) 13 Bear. 87. 

(^)6Biiflt. 113. 



(6) 2 Bro. 42a 
((0 2114K.576. 
09 2KayAJ.ei5. 



Judgment, 



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DALY 

V. 



44 CHANCERY REPORTS. 

1860. should be supplied, which might aid ia arriving at a right con- 
Chancery, 

elusion ; and I do not think it necessary just now to discuss the 

questions raised, respecting the construction of the bequest, as I 

ATTORNEY- think that at present I cannot do anything more than refer it to the 

GENERAL 

Master to inquire whether there is a Protestant school attached 

Judgment, ^q ^^jg chapel, within the meaning of the will. Then there arises 
the question as to what direction is to be given, in case the Master 
shall find that there is not such a school ? It has been contended, 
on the part of the petitioner, that this sum of £1000 is sq appropriated 
to this particular purpose, that, if it appear that there is no such 
school, it cannot be applied for any other charity, and must fall 
into the residue for the benefit of the petitioner, who is residuary 
legatee. On the other side it was alleged that, even if this insti- 
tution-were not within the precise language of the will, yet, on 
the whole language of the testator, a general charitable intention 
appears to have been shown; so that I can apply the doctrine 
of cy presy and appropriate the fund to some other charitable * 
purpose. 

In this case there are some peculiarities. The petitioner here 
fills several distinct characters. He is petitioner ; he is executor 
of this charitable fund, and he is residuary legatee ; and he has, 
therefore, a personal interest in the decision ; he has an interest apart 
from that which, as executor, he would have, to come here to be 
absolved from all liability in respect of the future application of 
the fund ; and, therefore, this cause petition was rightly instituted, 
as the will does raise a question of some difficulty. 

I am, however, quite satisfied that there is a general purpose in 
favour of charity indicated in this will. If I am to act on the 
authority of The Attorney- General v. The Ironmongers Com- 
pant/ (a), I must certainly hold the general charitable intention 
to have been manifested. The principle is there laid down very 
clearly, in such language that it is difficult to conceive a case coming 
more completely within it than the present ; Lord Brougham say- 
ing: — "So, in the case of a charity, when I bequeath £100 to one 
object, and £50 each to two other objects of bounty, my trustees 

(a) 2 M. & K. 576. 



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CHANCERY REPORTS. 45 

violate their duty if they give less than £100 to the one, and more I860. 

Chancery. 
than £50 to each of the other two ; and that, whether I use words of *— — v — -* 

exclusion, such as ** no otherwise," "no other charities," &c., or omit ^ 

to use them. But, when the one ohject fails, the doctrine of cy pres attoeney- 

QENERAL. 

hecomes applicable, although it has no place in legacies to indivi- 

duals ; and the intention to which the Court is to approximate will Judgment. 

be gathered from the other gifls, and from the gift itself." The 

words here are very general. I find a legacy of £2000 given, as to 

£1000 in trust for one charity, as to the other £1000 for the other ; 

and, taking the intention from the whole instrument, I cannot but 

feel convinced that that whole £2000 was intended to be applied for 

a charitable purpose of this kind. 

Then it is said, on behalf of the petitioner, that the doctrine of 
that case is controlled by another principle, viz., that if there be but 
a single object of charity named, and that confined to a single local- 
ity, definitely specified and pointed out, then there is no room for the 
application of the doctrine of cy pres; but, if the prescribed object 
be wanting, the legacy fails, as in the case of a legacy to an indivi- 
dual. A dictum of the Master of the Rolls, in the case of The 
Attorney- GenercU v. Hurst (a), was referred to. In that case, the 
testator had bequeathed the residue of his personal estate, upon 
trust to pay £12 per annum to the schoolmaster at Ravenstone, 
and to apply the surplus, if any, in clothing and apprenticing two 
children of the parish of Ravenstone, and one of the parish of Little 
Woolstan. The fund was too large for these objects, and the surplus 
was held applicable to general charitable purposes ; Sir Lloyd Ken- 
yon saying : — '* If there is one particular object to which a testator's 
mind applies, as the building of a church at Wheatley, and that pur- 
pose cannot be answered, the next-of-kin must take, there being in 
that case no general charitable intention ; but when, as in the Case 
of Thetford School^ and other cases, the testator intends to give all 
generally to charitable purposes, the increase will go cy pres,** Now 
that case of a church at Wheatley, which was relied on, is a very par- 
ticular case, suggested by the Master of the Rolls — that of building 
a church in a certain specified place ; the intention there does not 

(6) 2 Cox, 364. 



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CHANCERY REPORTS, 



1860. 

Chmteery, 

^ _ _v 

DALT 

ATTQBNET- 
OSNEBAJU 

JudgmmL 



go beyond the benefit of this preoiBO localHji and there is nothing to 
show that building a church iq another pUoe «oold at all have eoma 
within the wishes of the testator. Then it is said thai, in Car* 
berry v. Cox (a), dieoe was a decision which went x^n the prin- 
ciple of that didums but, in timth, it wfks a very difbreni case 
from the present, s^ far as regards the particular bequesjt which 
was then in question. It was the gift of a perpetual annuity to 
the nooks of Moast Melleraj, near Cappoquin, to be appropriated 
for the improTevtent of the chapel of Melleraj, That was as like 
the case of & bequest for building a church as could well be ima- 
gined ; and, accordioglj, I^ord Chancellor Blackburne says there : — 
** The finding as to this is, that the defendant, the Rev. Matthew 
Joseph Ryan, who is the successor of the Very Rev. Michael 
Vincent Rjan, deceased, is the abbot and principal of the monks 
of Mount Meller^. From this I infer that, since the dsiatb of 
the testator, Michael YinceBt, who was then the abbot or prin- 
cipal, has died ; so that I canopt reeogniae any right in his 
successor; neither can I discover any general charitable purpose 
thait can authorise the Court in devising a scheme.** Tha^ beqqeat, 
however, was of an aniiuity.-*4i specific hequ^t, staadiAg bf i^selC 
and totally without anything to indipalc a general purpose of 
charity; and, therefore, it was decided to belong to th(S reaiduary 
legfUee. In the very aaiBie case, however, the cy pres doctrine 
was applied to Another bequest mpre like this, by which the suqi 
of £20 yearly was bequeathed "to the monks of Shandpn, near 
Dungannoo, to provide clothing for the poor children attei^iiog 
their school.'* Th^ school was iNQcidentally discoBjtiaued ; hot the 
Lord Chancellor held that, eveo if the school was altogether to 
cease, there was such a g(B4ieral charitable intention indicated 
as to be capable of being carried out by a scbevAe befiffe the 
Master. Some other decisions may be nention^ showing jthat 
the doctrine may be applicable even in the mwsh weaker $aae of 
an isolated bequest, if the bequest cui be seen to imj^y a general 
charitable intention. Master v. Ti^ke w»b a case where the tes- 
tator gave £500 to a voluntary society called the ^* Plyinavth 



(a) 3 Ir. Caian. B^, 281. 



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CHANCERY aEK)BTS. 47 

and DeTonehire Asjrlam for (br the reception o£ female penitents." I860. 
This society was in existence at the time when the win was made, 
and at the death of the testator, but was soon afterwards dissolved ; 
and the Master of the Bolls held that there was a sufficient indica- 
tion of a general charitable purpose, and directed a scheme to be 
prepared by the Master, in order to the execution of it cypres, Judgm§Mi. 

One Case was mentioned, in which a question not unlike this 
occurred ; I mean In the maiier of the Cl&tgy Society (a) ; and 
it is more analogous perhaps than aify other to the present, in this 
respect^ that the will bequeathed several sums to different institu- 
tions of a similar character ; and then, though one could not be 
found, it was held that the bequest to it could be applied to charity 
cypres. The will was : — *^ I bequeath to the following societies or 
institiitioiiB established or carried on in London the several legacies 
or snms next hereinafter mentioned ; that is to say, to the Church- 
building Society the sum of £2000 £3 per cent, consols; to the 
Clergy Society the like sum of £2000, like annuities ; " and so on, 
giving similar legacies to other societies. The executrix could not 
discover what society was meant by "the Clergy Society." Several 
institutions claimed this legacy, and the executrix paid it into Court 
under the Trustee Relief Act. It was strongly argued that the gift 
must be held void f<^ uncertainty, because no object could be found 
to answer the description ; but a scheme was directed, the Vice- 
Chanedlor saying : — *^ The right course seems to me to be to direct 
a scheme for the application of this ftind in London ; the testatrix 
has specified that locality, though she has not sufficiently defined 
the object of the gift." That decision is a very useful guide in this 
case ; for we have the separation of these two sums fii^m the rest of 
the property, which are stated to be for the benefit of schools in St. 
Peter's pariah. One of them is tiientioned, in a general way, as the 
sehool of the parish ; the other, which he shows a wish to benefit, 
is also situate in the parish of St. Peter ; and therefore there is, so 
far, an indication of intention to benefit the Protestant schools in 
the parish of St. Peter. 

In Barrett v. Hayter (6), the testator bequeathed as follows : — 

(a) 1 K. a J. 615. (6) 2 Bear. 81. 



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48 



CHANCERY REPORTS. 



1860. 
Chancery. 

K , -/ 

DALY 

V. 

ATTORNEY- 

GENEBAL. 



Judgment, 



" I leave, after the death of Lucy Hawes, as many thousand £3^ per 
cent, to the following charities; viz.,^ £1000 £3^ per cent, to the 
Jews' poor, Mile-end, " and so on to a number of other charities. 
There was a reference to inquire what charity was meant by the 
" Jews' poor, Mile-end," and a controversy arose as to which of two 
institutions was entitled to this ; and the Master found that there was 
no sufficient evidence as to what charity was meant by the testator 
by the description of the ** Jews' poor. Mile-end." Both charities 
filed exceptions to the report. The Master of the Rolls overruled 
both sets of exceptions, but applied the fund, by the doctrine of 
cy pres, to the two charities equally. Thus, in fact, the gift there 
was to a particular institution, of a portion of a larger si^m, the whole 
of which seemed to be dedicated to charitable purposes — a case pre- 
cisely analogous in that respect to the present ; and the Master of the 
Rolls, not being able to find the particular institution intended by the 
testator, proceeded to have a scheme settled, by which his wishes 
might be carried out o^ pres, 

I need not, however, go more at length into the cases, the whole of 
which are collected in a note to the case of Loseomhe v. Wintering- 
ham (a) ; but on the grounds which I have mentioned, looking to all 
the cases and to the language of Lord Brougham, I do not think 
that I can hold that there is any expression in the will to indicate 
an intention that the fund should not be applied for the benefit of any- 
thing save schools attached to this Episcopal chapel, or to show an 
appropriation of this sum to one purpose only. The intention ex- 
pressed is in favour of schools in St.* Peter's parish, one in one place 
and another in another. There appears a general intention to sup- 
port such schools, and I think it a fit case to make a reference as to 
the proper application of the fund. 

Then the question arises, who is to pay the costs of this suit ? Now, 
it is plain that if this had been a cause petition to have a general 
administration, and this question had arisen in it, all the costs must 
have come out of this general personal estate. The legatee is en- 
titled to be paid his legacy, discharged of all such deductions ; he is 
to have it clear ; and whether the administration takes place with 

(a) 13 Beay. 84. 



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CHANCBEY REPORTS. 49 

or without the aid of a Court of Equity, he is entitled to have the I860* 
legacy exonerated. If, in order to have the rights clearly ascer- >^^ — ,, — ^ 
tainedy any expenditure is necessary, whatever costs may be so in- ^^ 

curred must fall on the personal estate. The cases are very fall a'RTornet- 

upou the point I had them before me in the case of Williams v. 

Armstrong (a), in which a question of construction was raised as to Judgment, 

a particular fund ; and I then held that ^* the costs of all necessary 

parties to an administration suit, occasioned by a question on a will, 

come out of the general assets, and cannot be thrown on a particular 

fund, though the only difficulty arises between, the parties interested 

in that fund, knd there is no question as to the rest of the assets." 

In that case the question was as to the construction of the word 

" balance." The testatrix had bequeathed certain amounts out of a 

sum of stock, which was really only £1750, but which she stated 

in the will to be £2255, to certain parties respectively, and gave 

the balance to a particular individual ; and the question was 

whether, according to Pags ▼• L€0pingwell (6),' the balance was 

to be taken as an ascertained aliquot share of the actual fund, or 

whether the legatee of the balance was not to get anything until the 

others were fully paid. I held that the legatee of the balance could 

get nothing, the fund being deficient ; but that although the question 

only concerned that particular fund, still, on the result of all the 

authorities up to that time, the costs of all parties were held to 

come out of the general residuary estate There is another case 

much to the same effect, Wilson v. Sqwire (e), which was a suit for 

administering a testator's assets, and in which a legacy was claimed 

by two legatees adversely to each other ; and it was held that, as 

the question arose on the testator's will, the costs must be borne by 

his estate, and not by the legacy; the Vioe-Chancellor saying : — 

** If a fund be separated from a bulk of the testator's estate, and 

then a question arises about it, the fund pays the costs. But if the 

question is, who is entitled to the fund in the first instance, that 

question is raised by the testator himself, and his estate must bear 

the costs ; for a testator's estate bears the cqsts of all the questions 

(a) 12 Ir. £q. Bep. 356. (6) 18 Yes. 463. 

(c) 13 Sim. 212. 
VOL. 11. 7 



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50 



CHANCERY REPORTS. 



1860. that arise on his will respecting it. In this xjase, therefore, the costs 
Chaticery. 

'' . -' of all parties must be paid out of the estate." 

DALY 

^ ^^ Now here we have a fund which has never been separated from 

ATTORNET- the estate of the testator. The petitioner, who comes to seek the 

GENERAL. ,. . « , ^ . , 

directions of the Court, is the executor and residuary legatee under 



Judgment. 



the will, and is the trustee of this particular fund. There is no 
other trustee of it ; it has never been appropriated to a separate trust. 
There has been no administration of the estate ; the consequence is, 
that if there were a suit by the Attorney- General, or by the charity, 
to have an administration, or by the executor, to have his rights 
ascertained, the costs must come out of the fund. In this case the 
distinction is taken that it is not for general administration, but to 
have the rights in this fund ascertained ; in other words, it is filed 
partly for the protection of the executor, partly fl>r the purposes of 
the owner of the fund, whoever he may be. Under these circum- 
stances, I think that up to this point the costs should be paid out of 
the residuary estate, and that the remaining costs should be borne 
by the fund itself, as if brought in under the Trustee Relief Act. 



Mr. Brewster and Mr. May, for the petitioner. 
Argument. If this fund had been brought in under the Trustee Act, that 

expense would have been imposed on the fund, in addition to the 
expense of a petition against the Attorney- General, which would, no 
doubt, have been directed by the Court. It was for the benefit of 
the fund to take the course here adopted ; and the petitioner, who is 
himself the residuary legatee, ought not to be burdened with this 
expense. The* fund is perfectly appropriated on special trusts, and 
separated from the rest of the property. It is not an administration 
suit, it is merely in the nature of, and analogous to, proceedings 
under the Trustee Relief Act. 

The Lord Chancellor. 

Judgment. I do not think that there is anything here to take this case out 

of the general rule ; ngr ought the executor to be allowed to evade 

the settled rule on the subject, merely by an alteration in the form 

of proceeding. The executor comes for the advice of the Court, 



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CHANCERY REPORTS. ' 51 

and the general personal estate must paj for that. It is settled by 1860. 

the cases to which I have referred, that whenever a suit is instituted < ^ — 1; 

for the administration of personal estate, though there be only a 

question as to the bequest of a particular fund, it is a matter of strict attorn et- 

right that the meaning of the will is to be declared at the expense _] 

of the general estate. It is now, however, contended that an Judgment. 
executor, keeping portions of the assets in his hands, and after the 
general estate is wound up, may say, " Here is a particular sum, 
respecting which I will ask the opinion of the Court," and may 
throw on that fund all the costs of that inquiry. I allow that, if 
it can be once properly vested in separate trustee?, and' thus com- 
pletely severed from the residue, it may, if a question arises, under 
some circumstances, be made to bear the costs ; but I do not think 
that it can in this way, which would be just as applicable if there 
were twenty different funds to be disposed of, as in the present case. 
I cannot allow the residuary estate to be withdrawn from its proper 
liability by this method of proceeding. If the executor has any 
assets, he must pay these costs out of them. All that I can do is to 
have the money, if now brought into Court, made to bear the costs 
of any further litigation respecting it. 

Reg. Lib. 26,/. 185. 



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52 CHANCERY REPORTS. 



1859. 
Ch. Appeal, 



Court of 9pptA in tfjbAncetp* 
KERNAGHAN v. M'NALLY. 



Dec. 9. 



A widow filed This case came before the Court on an appeal from an order of the 
against alienees LoBD CHANCELLOR, dated the Uth day of July 1859, by which 
band!^ In°*or- ^^ ^^ dismissed the petition. The following were the material 
out her "tide ^^^^ ^^ *^® ^*^ :— Alexander Nixon made his will, dated the 5th 

to dower, the ^^y of March 1776, and thereby devised certain lands therein men- 
petitioner was ^ ' ' 

obliged to give tioned, to his executors, therein named, in trust for his eldest son, 

m evidence a 

deed, by which George Nixon, and bequeathed all the residue of his real estate to 

the estate had 

been conveyed his executors, in trust for his younger children, as tenants in com- 

to the person 

from whom her mon, subject to the charges in the said will mentioned. In the 

ed. This deed month of November 1776, after the execution of said wiU, the said 
dtal^tlmt^the Alexander Nixon purchased the lands of Rea's-tenement or Rea's- 
w^o^tetand- P*"^^' which were conveyed to him by deed of the 16th of November 
ing in certain 1775 
trustees. The * ' 

petitioner also Mr. Alexander Nixon died in 1791, leaving his said eldest son 
gave in evi- 
dence certain and six younger sons surviving him ; and these younger sons imme- 
orders of the 

CoortofChan- diately went into possession of Rea's-park, and so continued in 
eery, to show , ., , , , , i. , , 

that sach red- possession until the subsequent sale thereof, and dealt with it as 
tal was mis- , . a 1 • • • • >n « 

taken. —ZfeW, ^"^^'^ ^^^ property. An administration suit (known as Scott v, 

entitl^^to^^ iVtxon) having been instituted by a judgment creditor of Alexander 
ascertain '^he ^'^^°» * ^i^c^ee was made in it for a sale ; and Rea's-park was, on 

lands of which the 24th of April 1839, sold to George Rankin. A reference 
she was dow- * ° 

able. respecting the title of Rea's-park having been then made, and the 

Statement, Master having reported good title, the purchaser took exceptions to 
this report, which were allowed by the Master of the Rolls, by an 
order dated the 14th of January 1843. From this order the plain- 
tiffs appealed ; and, on the 8th of February 1843, Lord St Leo- 
nards (the then Lord Chancellor of Ireland) reversed the order of 
the Master of the Rolls, on the ground that the younger children 



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CHANCERY REPORTS. 53 

of the said Alexander Nixon had acquired an indefeasible title, bj 1 859* 
an adverse possession of more than twenty years: vide this case, « 1^,. .../* 

« mr. X V * ■.. 1 , . , KERNAOHAN 

reported as ScoU v. Ntxon (a). Accordingly, by an indenture, p, 

bearing date the 3rd day of April 1844, and professing to be made 

by Master Litton, of the first part, James Scott, Esq., of the second -Ste^eiiwii^ 
part, Adam Nixon and Alexander }<^ixon, of the third part, the said 
Alexander Nixon and Maryanne his wife, of the fourth part, Han- 
nah Scott, Elizabeth Scott and Mary Scott, of the fifth part, Ralph 
Scott, of the sixth part, Adam Nixon, of the seventh part, Montgo- 
mery Downes Nixon, Frederick Nixon, Mary Nixon, Henry Carey 
Field, Jemima Field and Espine Ward and Sophia his wife, of the 
eighth part, William Ribton Ward and Montgomery Downes Nixon, 
of the ninth part, Jemima Nixon, of the tenth part, the Rev. Alex- 
ander Nixon, of the eleventh part, the Rev. Thomas James Oven- 
den, of the twelfth part, Alexander Power, of the thirteenth part, 
the said Adam Nixoo, of the fourteenth part, and the said George 
Rankin, of the fifteenth part, the parties thereto of the first fourteen 
parts conveyed to the said George Rankin Rea's-park or Rea's-tene- 
ment in fee. This deed contained a recital that the legal estate in 
those lands was in the representative of the trustee of Alexander 
Nixon's will ; and the conveyance was not executed by such repre- 
sentative. 

On the 26th of June 1844, the said Joseph Rankin conveyed the 
lands of Rea*s-park to Thomas Kernaghan, the appellant's husband, 
in fee. In 1848, Thomas Kernaghan made a conveyance of all his 
property to trustees, for the benefit of his creditors. In 1849> the 
trustees, having set up Mr. Eernaghan's property for sale by 
auction, Rea's- tenement was purchased by Edward Dufiy. On the 
investigation of the title on behalf of the purchaser, it was objected ^ 
that the property was subject to the petitioner's title to dower. This 
objection was afterwards compromised, by the parties permitting the 
purchaser to retain £200 out of the purchase-money, the petitioner 
refusing to release her dower. On the 8th of August 1850, the 
lands of Rea's-park were conveyed to Edward Duffy in fee, by a 
deed in which the petitioner was named as a party, but not executed 

(a) 6 It. Eq. Rep. 8; S. C„ 3 Dr. & W. 388. 



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64 



CHANCERY REPORTS. 



1859. 
Ch, Appeal, 

kbbnaohan 
m'nallt. 
Statement. 



hy him, and containing a recital that the petitioner w^ entitled 
to dower out of the said lands, contingent on her surviving Thomas 
Kernaghan. On the 2l8t of January 1861, said Edward Duffy 
conveyed Rea's-park to the respondents Charles M^Nally, Daniel 
Boylan and Thomas Gartland, in fee. 

Thomas Kernaghan having died, the petitioner instituted this 
suit, for the purpose of recovering her dower out of Rea's-tenement. 
At the hearing in the Court below, the deed of the 8th of April 
1844 was given in evidence on the part of the petitioner, who 
had had no opportunity of seeing it before that hearing ; and, it 
appearing, by the recitals in that deed, that the legal estate was 
outstanding in trustees, the Lord Chancbllor m^de a decree dis- 
missing the petition. From this order the present appeal was 
brought. , 



The Solicitor-General (Mr. R. Deasy) and Mr. F. W. Walshe 
(with them Mr. Richey)^ for the petitioner. 
Argument. The widow, in a suit for dower, has a clear right to have an 

opportunity of trying her title in the Master's office, or by an 
action at Law, if her title to dower be controverted : Mundy v. 
Mundy (a) ; Curtis v. Curtis (b) ; Dormer v. Fortescue (c) ; Darcy 
V. Blake (d). And she has also a right to the assistance of the 
Court, to enable her to have an opportunity of trying that title. 
That is all the relief we seek here, although we have made a case 
which really shows the petitioner to.be entitled. The decision in ScoU 
V. Nixon (e) shows that the legal estate was vested in the younger 
sons of Alexander Nixon, and that the trustees of his will were 
as much excluded from the property as the eldest son was. That 
decision shows that the deed was mistaken in reciting the legal 
estate to be in the trustees ; and we only ask not to be concluded by 
this erroneous recital. If we be not. Sir Edward Sugden's decision 
in Scott V. Nixon determines the whole case in favour of the peti- 
tioner ; and, even if there be anything like an estoppel in that 

(a) 2 Ves. jun. 125. (6) 2 B. C. C. 620, 632. 

(c) 3 Atk. 130. (d) 2 Sch. &Lef. 390. 

(e) 6 Jr. Eq. Bep. 8; S. C, 3 Dr. & War. 388. 



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CHANCERY REPORTS. 



55 



deed, the conveyance to the respondent operates as forcibly in the 1859. 
petitioner's favour. ^J^j^Hl.' 



KEBN1.0HAN 



Mr. Brewster and Mr. Lawson^ contra. ^ 

The deed states the finding of the report, under which the 
property was sold ; and as the petitioner can only make title 
through that deed, she is estopped from disputing the averments 
in it : Bowman v. Taylor (a). The deed clearly failed to pass a 
legal estate. The younger children had no colour of title, save 
under the will, and could not be heard to say that they did ^ot 
derive their title under it : Hawhabee v. Hawksbee (b) ; Anster v. 
Nelms (c) ; Garrard v. Tuck (d) ; Melling v. Leak (c). 



Arsument, 



The Lord Chancellor. 

This is a very singular case. I think that there ought to be 
some further inquiry ; and it would only put the parties to a needless 
expense to leave the petitioner to institute pother suit; but the 
petition of appeal does not at all point to the case made here at 
the Bar, nor was it suggested at the hearing before me. Under 
these circumstances, I think that there ought to be a further 
inquiry, but that the appellant must pay the costs of the pro- 
ceedings, which her own conduct has rendered necessary. I think 
that there must be a reference to one of the Masters, whether 
Mr. Eemaghan was seised of these lands. 



Judgment, 



The Lord Justice op Appeal. 

The petitioner, who claims dower out of the estate purchased 
by her deceased husband, naturally relied on the deeds which con- 
stituted his title. One of them, being the conveyance under the 
decree of this Court to a trustee for him, was produced by the 
respondent, and was read, and entered as the evidence of the peti- 
tioner. The effect of this deed, as conveying a legal title, was in 
fact the only matter discussed ; apd the Lord Chancellor decided. 



(a) 2 Ad. & El. 278. 
(c)_l^H. &Nor.223. 



{h) 11 Hare, 230. 
((0 8C. B. 231. 



(e) 16 C. B. 652. 



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1869. 
Ch. Appeal. 



^ CHANCERY REPORTS. 

most properlj, that it did not pass the legal estate, not having been 



executed by the heir of the surviving trustee in the will of Alex- 
„^ ander Nixon, or by a trustee legally constituted in his place. This 

Ihv'ltf A T T 7 

* assumed (and there was no evidence to the contrary presented to 

Judgment, ^^iQ view of ^he Court) that the legal estate had passed to the 
trustees in * the vriU of Alexander Nixon, of 1 766, as the deed 
recited ; and the objection to the petitioner's claim, so far, appeared 
to be conclusive. There were, however, several orders and pro- 
ceedings in ScoU V. iVtaron, in which the lands had been sold to 
a trustee for the petitioner's husband, entered as proofs on the part 
of the petitioner; and now, for the first time, they are brought 
under our consideration * I do not believe that there is an aUusion 
made in the case of either the appellant or respondent to them. 
The result is, that they disclose a state of the title quite at variance 
with the recital in the deed of sale, on which the petitioner had 
entirely rested, and on which alone the Lord Chancsllok had- 
acted in dismissing the petition. From thepi the real state of the 
title appears to be, that the lands were purchased by the < devisor 
after the execution of his will ; that they did not pass to the 
' trestees, but that the. six sons claiming as devisees of the testator 
became seised -and possessed of them, as if they had been well 
devised ; and so had acquired iuch a title by adverse possession 
as the purchaser was bound to accept. . This evidence satisfies the 
object which I had in view in asking whether, besides the deed 
of sale, there were any deeds or facts on which the dowress could 
rely, as putting her claim on grounds difierent from those founded 
on the truth of the recitals of the purchase deed undet* the Court. 
The consequence of the evidence I haye alluded to, as now dis- 
closed, is, either that the petition should be disolissed without 
^"^Jrejudice, or that we should reverse the decree, and direct an 
inauiry into the title. The mwer is, for aAl purposes, the more 
cqpvenient course ; but it must be on the terms, as to costs, sug* 
gested by the Lord Chancej^lor. 

Chancery Appeal Hearing Book, 1,/. 330. 



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CHANCERY REPORTS. 57 



1860. 



Court of Sanktttytcs anH Sn^olbentp. 

In re JOHN QUIN a Bankrupt ; 
Ex parte CHRISTOPHER MOORE.* 



June 6, 14. 



In this ease Christopher Moore sought to prove on the bankrupt's A employed 

B, a builder, 
estate for £251. 7s. lid. The fbcts, as appeared by the affidavit of to take down 

the front wall 
Moore, sworn the 30th of May 1850, were as follows : — In 1859, the of his hoose, 

, ,.. and execute 
said Christopher Moore, being desirous of taking down and re-build- some other re- 

. ing the front wall of a house occupied by hi to, No. 144 Upper the works were 

Dorset-street, and of making certain alterations in the next house, }hj*^^ier of 

No. 145, entered into a contract with the bankrupt, who was a ^ouse^^^sel^ed 

builder, for the above work, for the sum of £150. Some extra works, \ ««J»f . HP^^ 
' ^ A, that injury 

not in the estimate, were done, and the whole completed according was likely to 

result to his 

to contract. On the 17th of September 1859, the bankrupt was house from the 

repairs, and 

paid for the entire works, original and extra, the sum of £177. that he would 

hold A respon- 

12s. 8d. On the Idth of July 1859> the works being then jn pro- gibie. B,upon 

gress, a notice was served upon Moore, by Edward Doran, who mentioned to 
resided next door, at No. 146, that said alterations were likely to be ^i^^ 'estimate of 
injurious to his house, and that Moore would be held liable for any fou^^ng ^e! 
damage caused by said alterations. Moore showed said notice to the I?iJ^"^^Lj^ 
bankrupt, who assured him that the works in progress eould not in ^^} ^^® M^' 

QOtnff work, 1 
any way injure Dorao's house, and, as a guarantee, indorsed on the bereby under- 

estimate of the works a memorandum, dated the 23rd of July 1859, myself respon- 

sible for any 
injury done to 
the adjoining houses." Some works in addition to these in the estimate were done, 
the contract was completed, and B paid in full for all. C brought an action against 

A, averring negligence, anff alleging various injuries to his house from the works. 

B, upon being cal^d upon to settle or defend the action, made no reply, and soon 
after became bankrupt and absconded. A, having had to pay £191. 7s. lid. 
damages and costs, and £60, his own expenses in the action, sought to prove for 
£251. 7s. lid. — ^e/</, that (supposing the memorandum to constitute a contract 
upon a valuable consideration) the damages which C might recover against A were 
not necessarily identical with those contemplated by the guarantee, and that A could 
not prove for the above sum, either as for a debt payable upon a contingency, within 
8, 257, or as for a liability to pay money upon a contingency, within s. 258. 

• Coram Lynch, J. 
VOL.11. 8 



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1860. 
Banktcy; ifC. 

In re 
QDIN, 

Statement, 



58 CHANCERY REPORTS. 

in the following words : — " In carrying out the foregoing work, I 
undertake to hold myself responsible for any injury done to the 
adjoining houses, Nos. 143 and H6.** The works were accordingly 
completed and paid for. On the 31st of October 1859, Moore was 
served with a writ of summons and plaint, at the suit of the said 
Edward Doran, who claimed £1100 damages for the injuries alleged 
to have been done to his house. Moore called upon the bankrupt 
to settle or defend the action, but got no reply, and shortly after 
the bankrupt absconded from this country. Doran recovered in 
said action £75 damages against Moore, together with £116. 7s. 1 Id. 
costs, which sums, amounting in all to £191. 7s. lid., Moore was 
obliged to pay. In addition to the above sums, Moore had incurred 
other costs and expenses in defending the action, amounting to £60. 
Moore claimed to prove for the above sums, making, in the whole, 
£251. 78. lid. 



Argument, 



Mr. Sidney^ for the assignees, cited Maples v. Pepper ^) ; War- 
burg v. Tucker {h)\ Young v. Winter {c) ; and contended that 
Lewis V. Peahe (d) did not apply. On .the point whether Moore 
was entitled to recover the costs which he had to pay in the 
action, he cited Mayne- on Damages^ pp. 28, 29; Tindall v. 
Bell{e) ; Short v. Kallotoay (f) ; Beech v. Jones (g) ; Pierce v. 
Williams (A). 



Mr. James Keman^ for Moore, referred to the Bankrupt Act, 
sections 253 to 258, especially ss. 2579 ^^B, and commented on 
Tindall v. Bell^ and cited Lampleigh v. Brathwait{i)\ LewU 
V. Peake (k) ; Smith v. Compton (/). The form of the guarantee 



(a) 18 C. B. 177. 

(b) 4 Jnr., N. S.. 1142 ; S. C, 9 E. & B. 914. 

(c) 16 C. B. 401. (d) 7 Taunt. 153, 

(c) 11 M. & W. 228. (fj 11 A. & E. 28. 

(g) 5 C. B. 696. {h) 23 L. J.. Ex.. 322. 

(f> Hob. 105; S. C, I Sm. L. C. 126. 127. 



(A) Ubisup. 



(0 3 B. & Ad. 407. 



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Argument, 



CHANCERY REPORTS. 59 

may be said to be one that sounds in damages. The contingency 1860. 

was the ascertainment after the bankruptcy of an injury done before ^ ^* 9^ ' 

the bankruptcy. It is a hardship, and is contrary to the principle of qcin. 

the Bankrupt Law, that he who has given up his estate should be left 

liable to a demand ascertained before bankruptcy. If the amount of 

damages be ascertained before bankruptcy, why can we not prove ? 

— [Ltkchi J. Is it necessary to have recourse to that section ? Is 

this not an existing debt ?] — He cited Boyd v. Robinson (a). In 

this case the liability was incurred before bankruptcy, therefore we 

are entitled to prove. As to costs, he cited Lewis v. Peake (b). 

Ltnch, J. 

This was a claim made by Christopher Moore, for £251. 7s. lid., June 14. 
on foot of an alleged indemnity, indorsed on the contract, and dated 
23rd of July 1 859. Moore was the owner of a house in Dorset- 
street, and had entered into a contract with the bankrupt, whereby 
the bankrupt was to make certain alterations in Moore's house. 
After the contract was made, and while the work was in progress, 
Edward Doran, the owner of the adjoining house, apprehending 
damage to his concerns, from the works, served a notice on Moore, 
cautioning him respecting the apprehended mischief, and threatening 
to hold him responsible therefor; upon this the bankrupt indorsed 
on his contract the alleged indemnity, in these words s — '*In carrying 
out the foregoing work, I hereby undertake to hold myself respon- 
sible for any injury done to the adjoining houses 143 and 146." 
After this the works proceeded. The bankrupt completed his con- 
tract with Moore, and was paid in full. A short time after, Quin 
became bankrupt and, absconded. The petition was filed on the 
9th of November 1859. On the 31st of October 1859, an action 
was brought against Moore by Doran, for the injuries done to his 
house during the alterations made, for changes injuriously affecting 
him in the new works, and for resulting injuries in stopping his 
trade, &c. Negligence is alleged in the summons and plaint ; but, 
on examining the pleadings in that case, and the issues raised, in 
my opinion the damages that Doran might recover against Moore 

(«) 5 C. B., N. S., Sfn. (6) 7 Tatmt. 153, 



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Judgment, 



60 CHANCERY REPORTS. 

1860. are not identical with those contemplated by the memorandum on 
— ^?— ' ' the contract; the memorandam contemplates merelj injuries done 

QUiN. to the house by the works in execution^ and would not, I think, 
cover the case of the change of the building, no matter how well 
executed, which might have rendered Moore liable to an action, as 
for instance stopping ancient lights, or interfering with other ease- 
ments belonging to the acyoining house. I, therefore, do not think 
that the amount of damages and costs recovered in the action against 
Moore is the necessary amouat of damages to be recovered in an 
action by Moore against the bankrupt, if ^ such action lay on this 
memorandum. In my opinion, any claim on foot of that memoran- 
dum, which now exists, is plainly a claim for unliquidated damages, 
for not repairing or making good any injury done by him to the 
adjoining house, in the works executed by him. The language of 
the memorandum is not indemnity from any claim by the owners 
of the houses against Moore,, it is only for responsibility for injury 
done ; and I cannot see that these are identicaL It is unnecessary 
for me here to decide whether the contract disclosed by the memo- 
randum has really any valuable consideration to support it. The 
contract was then complete, and in course of execution, and boond 
Moore as well as the bankrupt ; and it is not easy to see the consi- 
deration for it, as it is now sought to interpret ijt ; but I do not think 
it necessary to decide this point, as my opinion is^ that this claim, 
even admitting it to be a liability of the bankrupt, is not proveable 
in the bankruptcy. 

It is now sought to prove against the estate of the bank- 
rupt the claim which exists on foot of the menLorandum, against 
the bankrupt; and several cases have been cited to me, showing 
the construction put on the providions of the statute respecting 
proofs for debts payable on a contingency, and, for liabilities to pay 
money upon a contingency. In addition to the cases cited to me, I 
have two very material cases on this point : Boyd v. Robins (a), 
on a guarantee (continuing) for goods supplied, in which case the 
Exchequer Chamber reversed the decision of the Common Pleas, as 
to the goods supplied after the bankruptcy of the guacaator, and 

Ca)4C.B^N. S.,749; in Eiror, S C. B., N. B.,5G7. 



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CHANCEKY REPOETS. 61 

Parker y. Inee (a). These cases bring down the decisions of the 
Courts to the latest period reported, and are in accordance with the 
cases cited already. I am not going into any minute consideration 
of the cases, or the points of difference in them, as, in my opinion, 
this case does not require for its ^decision any such nice considera- 
tions. Take the words of the statute themselvea, and see if, by any 
possibility, this claim can be embraced. Moore, certainly, at the 
time of the bankruptcy, had no debt due to him, or no claim of any 
sort against the bankrupt. The bankrupt had undertaken to be 
responsible for injury to the adjoining houses, and was responsible 
for it, if injury happened, but between him and Moore there was no 
debt and no liability then ; but if Moore is called upon to do what 
the bankrupt contracted to do, namely, to discbarge the damages for 
injury done to an adjoining house, then he will have an action over 
against him on his contract : and this contingent circumstance of 
liability is said to be within the statute, either as a debt payable 
upon a contingency, or a liability to pay money upon a contingency. 
Now it seems to me clear it is not a debt payable on a contingency, 
for it is in no sense a debt at all, and it is not a liability to pay 
money oa a contingency, for there is no liability to pay money at all, 
uakas I were to hokl that every sort of liability in tort^ which, in the 
end, say resnlt in damages, is properly expressed by the phrase 
liabili^ to pay money. Therelore, in my opinion, it is impossible 
for me, upon the bnguage of the statute, and having regard to the 
decisions of all the Courts in England on it, to say that this claim 
comes within its provisions, and I consequently feel bound to rule 
that this claim cannot be admitted as a proof. I confess that, in 
coming to this decision, on the ground of the nature of the claim, 
supposing it to be otherwise a well-founded one, I regret the neces- 
sity which the language of the statute and the cases already decided 
impose on me, and I do not see the policy of excluding from proof 
any well-founded demand, because of any difficulty that may exist 
as to its ascertainment. Serious injustice may be done parties with 
perfeotly dear rights, by this Ck>urt rejecting claims on the grounds 
put in many of tW eases ; and a man may, through this Court, be 

Ca) 4 H. & N. 58. 




JudfWUMt, 



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62 CHANCERY REPORTS. 

1860. rendered insolvent to discharge liabilities quite as proper to be dis- 

v,i»y '— ^ ' charged as any ascertained debt due at the time of his bankruptcy. 

QUiN. However,* I have but to administer the law as established ; and I 



Judgfkent. 



shall be glad if I am shown to be wrong in the decision I have 
come to. 

Let the claim be rejected, with costs. 



4prt/2 
Mayi 



In re EDWARD RUBY JOHNSTON to Insolvent.^ 



The decision in This case is reported, on the point upon which it formerly came 

this case, ante, 

Tol 9, p. 559, before the Court, ante, vol. 9, p. 559, where will be found the mate* 

J. ' rial facts. — Judge Lynch haying directed a reference to the Chief 

quired by an Clerk to inquire and report as to the debts of the insolvent, alleged 

insolyent, sub- ^ ^ 

seguendj to to have been incurred subsequently to his insolvency, thcr case now 

his insolyency, 

is charged with came before the Court upon the report of Mr. Kelly, acting for the 

a first trust for 

his subsequent Chief Clerk. The debts in the first schedule to the report amounted 

and, before the to £48. 3s. lid., those in the second schedule (including £250 due 

tach such sub^ ^o Mrs. Ackleston, the sister of the insolvent) to £1337- 8s. 3d., 

^^^pn^ making in aU £1385. 128. 2d. The funds to meet the above Uabili- 

Ee^satisfied** 'ties consisted of £1 150 realised, including the sum of £273. Is. lid. 

that theinsol- lodged in Court; a sum of £500, to which the insoWent was en- 
rent is of abi- 

lity to pay his titled in expectancy, and a debt of £40, which was pronounced very 
scheduled 

debts ; and doubtful, if not bad. 
this ability to 
pay is not to 

be determined -m, t\ ^ rr n i 

by the casual Mr. JJ. C. Heron, for the assignee. 

^IdTbut V ^^* ^' ^' -^^Ty* ^^^ ^^^ insolvent. 

tlie possession 

of assets ultra 

the liabilities t «^«« t 

subsequently ^™^«> •^• 

mcurred. "pi^jg ^^^ comes afeain before me upon the report of Mr. Kelly, 

Judgment, acting for the Chief Clerk, upon the reference which I offered to the 

* Coram Ltnob, J. 



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CHANCERY REPORTS. 63 

assignee, respecting the debts alleged by the insolvent to have been I860. 

Btmktcy.tffc, 

incarred since his insolvency. Already in this case I have re- ' 

In re 

marked that the order made, attaching the subsequently acquired johnston. 
funds of the inHolvent, seemed to me to have been made before the j jgnent 
facts were ascertained which could warrant any order beiug made 
attaching them as funds in the insolvency ; but I have decided, and 
I abide by that decision, that the saving in the order of the 20th of 
October leaves the case now to be dealt with by me as if the money 
were not already paid into Court to the credit of this matter, and 
that I am free to consider whether it is at all a fund proper to be 
dealt with in the insolvency. In looking into the provisions of the 
statute, I think subsequently acquired property of the insolvent is 
certainly charged with a first trust for his subsequent creditors, and 
that it never was meant, or could be meant, that any funds in his 
possession subsequently were actually bound with an existing liability 
to be brought in as funds in the insolvency. To hold that would 
lea?e the insolvent incapable of conducting any business until he 
had discharged all his schedule debts. However, I cannot yield in 
any way to Mr. Barry's argument as to the anticipated legislation ' 

in England on this subject ; it is not as yet even the law there : 
and were it law, I could not regard it here, although I do hope and 
trust that the law will always stand on the same foundation in both 
countries, and that we may have the same principles and the same 
procedure in each. We have the same Court of Appeal, and our pre- 
cedents and authorities ought to be of the like operation in each ; 
and, I think, everything making our practice different, or our la^s 
not the same, is a great mischief to this country. But I have 
nothing to do with any principle but that to be deduced from the 
Acts before me ; and I hold the principle is, that before I attach 
subsequently acquired property, I must be satisfied that the insol- 
vent is of ability to pay his scheduled debts ; and this ability to pay 
is not, I think, to be determined by the casual possession of a fund 
in his name, but by the possession of assets ultra the liabilities sub- 
sequently incurred. This principle, being established, leads me then 
to consider the report before me. First, I am asked to declare that 
the alleged debt of £260 was never a debt, or that it was not to be 



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64 



CHANCERY REPORTS. 



1860. 
Banktcy,, ^. 

In re 
JOHNSTON. 

Judgment. 



paid until after the debts under the insolvency. The report is in- 
accurate, in not finding whether it is a debt or not : however, I have 
now on this motion to determine that question on the evidence before 
me ; and, in my opinion, finding the evidence all one way, and no 
suggestion made to lead me to doubt its truth, I feel bound to declare 
that it is a debt. A sister can lend to her brother as well as to a 
stranger, and the expected kindness and forbearance of a near rela- 
tion is no foundation for declaring the loan not to be a debt ; and 
merely regarding now the question of ability to pay by means of subse- 
quently acquired property, it would be a strong measure for me 
to confiscate this money of his sister, in order to raise up an ability 
to pay by-gone debts, and this' in direct opposition to the only evi- 
dence, in the case. Taking, then, Mrs. Ackleston's debt as still due, 
the report shows me, in first schedule £48. 3s. lid., in second 
schedule £1337. 8s. 3d., making a total of £1386. 12s. 2d.; and 
against this the assets are £1150 realised, an expectancy on a 
sum of £500, and a bad debt of £40. I do not think this shows a 
present ability to pay the schedule debts, for I do not think it shows 
a present ability to discharge his subsequent debts. 

I, therefore, in this state of facts, must declare that the insolvent 
is not shown to me to have such ability, and hence, that this fund 
is not a fund properly applicable to the matter of the insolvency ; and 
consequently I will order this fund to be restored to the insolvent. 

The only matter I have then to consider is the costs. The motions, 
when made, were prima facie well-founded ; and the realisation of 
the claim then existing would have discharged all the debts. By sub- 
sequent compromise, now unquestioned, the assets are diminished 
below sufficiency ; but I think it proper to give the costs of the pro- 
ceedings to the assignee, up to the hearing of the motion before me ; 
but the reference was taken at the assignee's own risk, and I must hold 
that he substantially failed in every branch of it, and that I should 
give the insolvent the costs o^ these proceedings. However, on the 
whole, setting one off" against the other, I will make the order with- 
out costs to either party, and give the insolvent back the £50 lodged 
in Court. 



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CHANCERY REPORTS. 65 



1860. 
Banktcy,, ^c. 



In re JOHN M'KENNA a Bankrupt.* 



June i 



In this case, bj an order of this Coort^ made on the 27th of March A^abanknipt, 

haying become 

1860, it was (amongst other things) ordered '' that the carriage of able to pa^ in 

full, obtained 

all proceedings in the matter of this baokmptej, after the creditors an order of tbe 

shall have been paid 20s. in the £1, and that this order has been ingthat, upon 

complied with, shall be re-convejed by the aMigaees in this matter to ^tara^2oL^ 

the banlumpt.'' The order also made payment of the assignees' costs pa%ig Uie «h 

a condition precedent to the transfer of the carriage of proceedings and Jh^^^<!a^^ 

re-assignment of the estate. On the said 27th of March, the bwik- ?^ proceed- 
°^ ' mgs in bank. 

rapt lodged to the crt^lit of the bankruptcy DMtter a sufficient sum raptc^r sbonld 

"^ be transferred, 

to pay the creditors 20s. in the £1, and they were afterwards paid and the estate 

re-assigned to 
in full, and the said order complied with, sare as to the payment of him. The cre- 

« . . XV. ,... .^. ditors were 

the assigneer costs. Owmg to a delay in the taza^A of these costs, paid in fuU; 

the bankrupt was unable to have the matter entered for a final audit, the d^of the 

or 4o proeuR} a' reassignment of his estate and efl^ts. The bank- b^|^p^ ^ 

rupt having applied to Henry Thomas Walsh, the trade assignee, ^^^J^^^A 

for certain bills of exchange, drawn by the bankrupt on one John ^** nnable to 

Nugent, and indorsed to the said Walsh, Walsh lodged the said bills «>»^» a?d get 

the carnage of 
with Mr. M. Murphy, the official assignee, who handed them to proceedings 

transferred, 
the bankrupt. The official assignee, upott being applied to, gave and the estate 
_-. ^ re-assigned. 

Mr. Grerrard, the bankrupt's solicitor, on the 19th of May I860, UpongivingB, 
., « „ . ^, .^ the official as- 

the following authonty :— aignee, a letter 

"Deab Sir — ^If you lodge with me a written guarantee, relieving b iSd'ci^e 

official and 
trade assignees, A got an authority from B to take proceedings in the names of B and C 
for the recoTcry of debts due to the estate. A, having brought an action in the names 
of B and C, was served by C with notice to discontmue, on the ground that he had 
no anthority to use G's name. The defendant in the action took defenoe, and gave 
notice of motion to set aside the summons and plaint, on the same ground. This Court, 
having been ajjplied to while the motion in the Law Court (C, P.) was pending, 
ordered that said motion be not moved, that the action be proceeded with, and that 
C should pay the costs of this motion and of tht motion in the G. P. 

• Coram Ltnch, J. 



Note. — In this case application was made to the Court on a former day to 
grant an allowance to the bankrupt. The Court, having ascertained upon inquiry 
that the bankrupt had property over and above what went to pay 20s. in the £i, 
refused, on that ground, to grant the allowance. 

VOL. 11. 9 



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66 



CHANCERY REPORTS. 



1860. 
Banktc y., jf c. 

In re 
m'kenna. V 

Statement. 



the assignees from any demand for costs, I will allow you to use my 
name, and that of Mr. Wabh, in suing for any debts due to the 
estate of Mr. M*Kenna;— Yours, " Michael Mubphy." 

Thereupon Mr. Gerrard sent Mr. Murphy the following in- 
demnity : — . 

"Bo JOHN M*KENNA. 
** To MicHAXL MuBPHT and Hbnbt Thomas Walsh, Esqn. 
« SiBS — I hereby personally undertake to indemnify you, as assig- 
nees of John M'Kenna, against finy costs or expenses incurred or to 
be incurred in suing for the outstanding debts due to the bankrupt's 
estate, or otherwise in relation thereto. 

" Samuel Gebbabd." 
On the 13th of Jane the bankrupt commenced an action in the 
Court of Common Pleas, in the names of the official and trade 
assignees, against Nugent, on foot of said bills. On the same day 
notice was senred by Walsh upon the bankrupt to discontinue, on 
the ground that he had no authority to use Walsh's name, and 
Nugent lodged £15 with the official assignee on account of the 
bankrupt's demand. Nugent filed his defence, and on the 19th of June 
the bankrupt received notice of a motion in the Court of Common 
Pleas, to set aside the summons and plaint That motion was still 
pending, and the bankrupt now applied to this Court, pursuant to 
notice, that he be at liberty to continue the proceedings taken by 
him, in the names of the assignees, against John Nugent, in the 
Court of Common Pleas, notwithstanding the notice of motion to the 
said Court, of the 19th of June, and for the costs of the motion to be 
paid by the said Henry T. Walsh or his solicitor personally. 



Mr. GambUy for M'Eenna. 

Mr. Dowse f for Walsh. 

Argument. The bankrupt should in the first instance have got the order of 

the Court authorising him to use the assignees' names. Here Walsh 

is a trustee for the creditors. No man has power to use a trustee's 

name without his consent. If it be necessary to apply to the Court 



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CHANCERY REPORTS, 67 

now, it was necessary in the first instance. He cited Bourke v. 1860. 
Murray {a). B^aUu^c. 

Mr. GambU. mkemna. 

The assignee is not an ordinary trustee ; he is the officer of the Argumenu 
Court. 

Lyhch, J. 

It has been argued here that Mr. M*Kenna ought not to be Judgment. 
permitted to proceed with this action against Mr. Nugent, on the 
grounds' that there is not so much due as is sued for, and that the 
amount, being under £20, ought not^to be sued for in the Superior 
Courts. I do not know enough of the merits of that case to go into 
any question of that kind. I have nothing to do with the merits 
of that case. Mr. M*Eenna paid all his creditors 20s. in the £1, 
and he w^ in a condition in April last to have got a re-assignment 
of his estate, and a legal title to institute proceedings in his own 
name for the recovery of this debt ; but he was stopped from doing 
80, by the agent of the commission not furnishing his costs, so to 
enable the bankrupt to pay them and get back his estate. If the 
bankrupt had been in that position, no one could have interfered 
with his proceedings to recover the amount of these securities. 
There was indeed no special order of this Court to bring the action, 
but there was a general order that the carriage of the proceedings 
should he given to the bankrupt, on his paying the 20s. in the £1, 
and the costs. It would have been more regular to have obtained 
the sanction of this Court before bringing the action, for the Court 
would not allow any action to proceed under its authority unless 
it saw that it was right ; and if any person has any just reason to show 
why the action should not be brought, it can be stated. But here the 
trade assignee is the person interfering to prevent the action from 
being brought in his name. Now, as long as he remains the officer 
of the Court, he is bound to submit to the directions of the Court ; 
and I cannot sanction that he, an officer of this Court, should, in 
defence of a debtor of the bankrupt, interfere to stop an action. Why 
should I interfere between Mr. M'Eenna and his debtor ? If the 
(a) 10 If. Com. Law Rep., App., xi. 



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1860. ' 
B tnktc y,, 4^. 

In re 
M^KENNA. 

Judgment. 



68 CHANCERY REPORTS. 

trade assignee took exception to the proceeding with the action, 
and brought it before me in a formal manner, I would have con- 
sidered it ; but I cannot sianction that Mr. Walsh, the trade assignee, 
should of his own caprice interfere to stop the action. I will sanc- 
tion the action already brought, and let Mr. M*Eenna proceed as he 
may be advised. The only question for consideration was, whether 
the assignees are sufficiently indemnified, and I think they are. I 
do not consider that Mr. Walsh has the slightest interest in the 
matter. If he have any interest, why is it that he has so ? Because 
the agent had not his costs ready to be taxed, and delayed famish- 
ing them from April to June. That was the only reason why Mr. 
M*Kenna had not got the assignment of his estate, to enable him to 
have his action tried in his own name. Mr. Walsh is the officer of 
the creditors up to this time. He has attempted to interfere with 
the action brought by the bankrupt. I direct that the motion in 
the Common Pleas be not moved, and that the action be proceeded 
with. I also direct that Mr. Walsh, the trade assignee, do pay the 
costs of this motion, together with the costs of the said motion in the 
Common Pleas, necessarily and properly incurred by the bankmpt, 
by reason of Mr. Walsh so proceeding, up to the 22nd of June inat. 



Note.— Vide Lowes y. Bott (16 M. & W. 300, 362) ; Spicer y. Todd (1 DowL 
306) ; Whitehead y. Hughes (2 DowL 258) ; Emery y. Mucklow (10 Bing. 23). 



Jufy 31. 
August 1, 



In re THOMAS LOCKHART a Bankrupt.* 



Where a bank- This was a sitting for the final examination of the bankrupt. The 
rapt had traded 

recklessly, by passing of the final examination was opposed by the trade assignee, 
means of ac- ,,.,.. 

commodation and by individual creditors, on the ground that the bankrupt had 
bills, and had j j i_i i «, 

got extensiY© traded recklessly, by means of accommodation bills, and had re« 
credit by re- 
presentations that he was solvent, and that said bills were for valne, the Court 
adjourned his final examination, sine die, npon the state of fiftcts disclosed by his 
schedule. 

• Coram Lynch, J. 



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CHANCERY REPORTS. 69 

presented said bills to be bills £(>r value, and also had made other I860, 
wilful misrepresentations as to the state of his affairs, and thereby ' ^"'^"_? ^' 
got large credit. The bankmpt was a proTision merchant, and ^ockhabt. 

Army and Navj contractor. His liabilities, as appeared by the 

schedule, were jC42,880, and his assets consisted merely of some 
plant necessary to carry on his business, debts due to him, and 
household furniture, but no stock in trade ; learing net liabilities 
£25,995. The dealings mentioaed in the schedule commenced 
in Jane 186B, at which time the debts due by the bankmpt 
were £8770, and his assets £1690. In the five months pre- 
vious to his stoppage, the bankrupt had reoeived and disbursed 
£242,102. The amount of bills discounted from December 1859 
to May 1860 was £82,306 ; and, of this amount, £32,205 con- 
sisted of aocommodatioo bills, which the bankrupt had repre- 
sented to creditors to be for Yalue. Most of these accom- 
modation bills were drawn upon the father of the bankrupt, who 
carried on the same trade in Glasgow. As the bills drawn on 
the bankrupt's father arrived at maturity, they were retired by 
means of accommodation bills drawn upon other parties. The 
special losses in the two years were put down at £7341. Part 
of the said sum of £7341 was the loss on a contract for salt pro- 
visions, taken at 32s., when the market price was iOs., and expense 
of caring 5b^ giving a loss of 13s. per cwt. £1098, another 
part of said £7341, was the loss on a eontraet for mess beef. It 
appeared that the bankrupt purchased beef in the Dublin market 
at 40s., which he sdd in Glasgow and Liverpool at 21s. to 288. at 
the utmost Sundry trade charges were set down at £3000. 
These, with many other items, constituted the losses which led 
to the bankruptcy. The bankrupt admitted that a sum of £2400, 
doe to a Mr. Geale, a victoaller, consisted of debts contracted 
in January, February and March 1860, and that it included 
the amount of two bills on which Geale had put his name, for 
the bankrupt's accommodation. 

In explanation of two statements of his affairs, the one made 
on the 21st of April last, showing his assets to be £18,000, and 
his liabilities £6094, and the other made on the 12th of May 



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70 



CHANCERY REPORTS. 



1860. 
Banktcy,, j-c. 

In re 
LOCKHART. 

Statement* 



last^ and showing his assets, over and above liabilities, to be 
£3000, the bankrupt stated that, by the liabilities in the first 
statement, he only meant those v^hich he had to meet between 
the 21st of April and the 1st of May, and that the second state- 
ment was drawn up on the same principle. Mr. Megaw, the trade 
assignee, proved that the bankrupt had made several representa- 
tions to him as to the bankrupt's solvency, which induced him to 
give the bankrupt credit for wheat, in April and May I860, to 
the amount of £1000. He also expressed his dissatisfaction at the 
way the bankrupt's books were kept, and stated that the ^bankrupt 
had entered into contracts which could not turn out otherwise than 
ruinous to him. These statements, as to solvency, the bank- 
rupt said he did not remember. It was proved that the amount 
of discount on the bankrupt's accounts in the National Bank, from 
June 1858 to May 1860, was £1160. Mr. Hardy, the manager 
of the National Bank, deposed that the bankrupt always repre- 
sented that the bills he was discounting were for value, else the 
bank would have nothing to say to them. When the first state- 
ment (that of April kst) was produced to him, he thought it re- 
presented the actual state of the bankrupt's affairs at the time, 
and not the mere requirements for the month. In consequence of 
the satisfactory nature of the accounts, which he had no reason to 
doubt,. and the explanation of the bankrupt's father, who stated 
that the bankrupt's position was an excellent one, he. (Mr. Hardy) 
agreed to advance him £2000, to enable him to carry on his 
monthly contracts with the Government. That amount was over- 
drawn, and he was very much annoyed at it. The second state- 
ment was then furnished. He repudiated the idea that he held 
out any hope that any further advance would be made until 
the statement was inquired into. That inquiry was made, after 
which the bank refused to advance any more money. 



Argument, Mr. D. C. HeroHy for the trade assignee, asked the Court to 

adjourn the final examination sine die, and to refuse protection ; and 
relied upon In re Keon (a). 

(a) lOIr. Eq.Rep. 113, 



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CHANCERY REPORTS. 71 

Mr. Levy, for Mr. Geale and another creditor. . 1860. 

^ Sanktcy,, fyc. 

^ In re 
Mr. James Keman^ ior the bankrupt, submitted that, though lockhart. 

the Court might not approve of the conduct of the bankrupt, the a^^^m. 

justice of the case would be met by passing the final examination, 

and letting the assignees enter an objection to the certificate. In 

re Keen was a case of forgery, fictitious names having been put 

on bills. 



Lynch, J. 

This case has occupied a good deal of time, but not more than Judgment, 
it deserves, for it is a case of very great importance to the mercan- 
tile world ; a case in which this Court is bound to remember the 
interests of the mercantile community, and the protection to which 
it is entitled. Unfortunately, the investigation cannot tend much 
to the benefit of the creditors, for whom there are very little assets, 
to go against the enormous liabilities of the bankrupt ; but the 
Court has a public duty to discharge towards the mercantile world, 
which looks for protection against fraudulent traders coming into 
the Court, and, as a matter of course, passing through it. In deal-^ 
ing with the case, I shall first take the schedule containing the 
representations of the bankrupt himself; and looking at those 
representations, they seem to well warrant the few pertinent obser- 
vations made by Mr. Lfivj/ in reference to it. There is in the 
schedule a statement of the affairs of the bankrupt on the 2nd of 
June 1858, from which it appears that he then owed debts amount- 
ing to £8770, and I should be almost justified in stating that there 
was not a fraction of assets to meet them. There are put down 
as good, bad and doubtful debts £3100, and goods in hand to the 
amount of £1600. There is no such thing, for the goods spoken of 
are merely the implements by which the bankrupt carried on 
his trade ; and he was utterly without capital to enable him to 
go on with his trade at that time ; so that the state of his 
affairs in June 1858 was, that he owed £8770, three-fourths of 
which consisted of accommodation transactions, showing a trade , 
bolstered up'and forced on through means of accommodation bills, 



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72 CHANCERY REPORTS. 

I860. with scarcely a fraction of assets. No doubt it is stated that 
Ban ey., »c. ^^^ bankrupt had large transactions afterwards. But would any 
LOCKHABT. ^^^ ^ justified in entering into large and extensive transactions 

— commencing in that way? Mr. Keman has asked if this Court 
Judgments 

would prevent speculation ? It will not. Trade generally has specu- 
lation connected with it, and an honest trader may be brought down 
in the mercantile world and compelled to become a bankrupt. « It is for 
the benefit of trade that legitimate speculation should be encouraged ; 
but that speculation is not gambling, nor risking your neighbour's 
money, having none of your own to put in peril. In the present 
case, the bankrupt was obliged to resort to accommodation transac- 
tions to take him out of the state of insolvency he was in in June 
1858, and then commenced a career of greater accommodation trans- 
actions to float him on in the mercantile world, and enable him to 
come before mercantile people with accommodation bills as if they 
were legitimate trading transactions. If the case came before 
the Court on the state of things in June 1858, as disclosed by 
the schedule, it would call for the greatest condemnation by tlte 
Court on a trader who so conducted himself. The bankrupt en- 
tered into a large Navy contract in October 1859> speculating on a 
fall in the price of cattle, when the opposite conclusion might have 
been more naturally drawn. Is it honest dealing to go into the 
commercial world and raise money on such speculations ? And how 
was it efiected ? By accommodation transactions with his father, the 
representation or pretence being that they were bills for value, and not 
accommodation kites set up to carry on a false and fictitious trade. On 
the patent facts set out in the schedule, this Court would not be doing 
justice to the mercantile world if it did not state that no such schedule 
could pass here without the strongest condemnation. Unfortunately, 
accommodation bills are used in trade. It is well known, however, that 
a man will lose credit if it be understood that he deals in them. 
To avoid this loss of credit, the bankrvpt represented that they 
were bills for value, and, on the foith of that misrepresentation, 
he got enormous credit. In April last> he made a statement ai his 
circumstances; and if it was an account of a month's liabilities 
only, as stated, why make a statement of all his assets ? If all 



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In re 
LOCKHART. 

Judgment, 



CHANCERY REPORTS. 73 

the assets were on one side of the account, why should not all I860, 
the liabilities be on the other? K such were the case, any man ^^* Q^^gf * 
would understand the document. The bankrupt would not pledge 
his oath that he told Mr. Hardy, of the National Bank, that those 
were only a month's liabilities. Independent of Mr. Hardy's evi- 
dence, the document itself would go to show that it was intended 
to be a representation of the bankrupt's circumstances at the time ; 
otherwise, what would be the meaning of Mr. Hardy's statements 
that, if the account were true, the bankrupt was then in a solvent 
state ? That observation would not be applicable to a month's account, 
and would only apply to a statement meant to show that the bank- 
rupt was in a complete state of solvency. If this view requires 
confirmation, the statement made in May abundantly supports it ; 
and both documents show that the statement was wilfully and 
deliberately made, for the purpose of procuring a large loan to 
himself. Poor men are brought to justice for taking small sums 
from their neighbours; but. to filch money out of another man's 
pocket by force is a lesser crime than for a man to go into the 
mercantile world, and put into his pocket money which he knows 
he never can pay back. The man who represents that he has 
large transactions for value in the way of trade, and by that means 
obtains in the mercantile world credit to which he is not entitled, 
is guilty of a greater offence than stealing money from his neigh- 
bour ; for such conduct strikes at the root of all confidence in trade, 
and does great mischief in a mercantile community. Mr^ Hardy 
was made the instrument by which Mr. Megaw was also misled 
as to the bankrupt's solvency. Having made that statement of his 
affairs to Mr. Hardy, Mr. Megaw was referred to him, and thus 
was induced to place confidence in the bankrupt still, though his 
name had been mentioned in connection with the failure of the 
Messrs. Rogerson. There was then a wilful, deliberate misrepresen- 
tation by the bankrupt,> in order to get credit when he was in a 
state of insolvency, and wh^n he knew that he could not pay his 
debts from the proceeds of the contracts. That was not honest 
trading. Under the Bankruptcy Code, the fact of a man having 
engaged in gambling prevents him passing, or getting a certifi* 

VOL.11. 10 



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Judgment* 



74 CHANCERY REPORTS. 

I860. cate; but it is worse than gambling for a man to go into the 

. mercantile world, and raise money which he cannot hope to be 

In re 
LOCKHART. ^^^^ ^0 paj, and to raise it altogether at other people's risk, having 

nothing himself to lose. Therefore, on the ground of reckless, pro- 
fligate and dishonest trading, and on the ground of wilful misrepre- 
sentation, I am prepared to deal with this case. I4 he to pass the 
final examination ? Mr. Keman has said^ that there is only one 
case in which I refused to pass the final examination, and that that 
is a pase where there was an absolute forgery committed, in the 
eye of the law — where fictitious names were put on bilb brought 
into the market. My jurisdiction to adjourn the final examination 
sine die was questioned ; but no appeal was taken to my decision. 
I refused to pass the final examination in that case ; I do equally 
in this case. I feel that I should not be justified, holding the place 
I do, in giving the bankrupt a certificate, as I do not think, looking 
at the bankrupt's past conduct and transactions, that he is entitled 
to the certificate of the Court for his future dealings. I regret to 
have to adopt that course ; for I should be better pleased if I could 
deal leniently with the case ; but my duty to the public compels me 
to adjourn the bankrupt's examination sine die. 

Protection refused. 



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CHANCERY REPORTS. 75 



1860. 
RolU. 



IIOMAN V. SKELTON. 
(In the Rolls.) 



Mau 

No 



'off. 13. 



The cause petition in this matter was filed for the specific perform- In 1827, a les- 
sor, as to 

ance of a covenant for renewal, contained in a lease of the 20th of whom it was 

dtspiited who* 

October 1827. The facts of the case, which are very fully stated t^er she was 

in the judgment, were shortly as follow : — ^^J lifef'^'or 

Daniel M*Neale, being seised for lives renewable for ever of the ^^^^f^j 

lands of Proleek (a part of which called Rosabella Proleek was in- hves renewable 
^ ^ for ever, made 

duded in the lease of the 20th of October 1827), made his will on a lease for her 

own life, with 
the 22nd of April 1822, whereby he devised all his freehold pro- a covenant 

that if she 
perty in the county of Louth to trustees, on trust to permit his should be en- 

, . , abled, either 

daughter Rosabella, who was his heiress-at-law, to receive the rents separately or 

- ^ , . , 1 . . , , , in conjunction 

and profits for such term, time and space as his said daughter with any other 

should remain unmarried, or marry with the consent of both his ^j^^ to'^e^t 

trustees ; but in case his said daughter Rosabella should not marry" mUes^^or ^ 

with consent of one or both of his said trustees, then she was to receive Jj'^K®^ ^JJ^ 

tnan was there- 
only an annuity of £60 for her life, and the residue of the property V G*""**?^* 

Sue wouiu, at 

was to be vested in Government stock for the benefit of her issue ; the request and 

costs of the 
lessee, execute 
* all such further act or acts, ^., for the purpose of granting the premises to him, for 

any term not exceeding three lives, with covenant for perpetual renewal, on payment 
of a peppercorn fine on the fall of each life, at the rent thereby reserved, &c., and 
the lessee covenanted for himself, his heirs and assigns, with the lessor to accept 
such grant. It was decided by the Court of Appeal (7 Ir. Ch. Rep. 388) that the 
lessor was tenant in quasi tail. 

Semble. — The covenant was a personal covenant, binding on the lessor during 
her life, and did not descend with the land. 

No claim was made on foot of the covenant during the lifetime of the lessor, 
who died in 1854. Judgments had been obtained by the petitioners for the same 
debt against the lessee and R., who was Entitled in remainder to the reversion, and 
who niterwards became entitled to the lessee's interest. After the lessor's death, 
a petition was filed by creditors of R., in the Incumbered Estates Court, for sale 
of^he reversion, on the ground that the lessor was only tenant for life, or, if she were 
tenant in ^uast tail, that she had not barred the entail. The petitioners were made 
parties in that matter as judgment creditors of R. ; and after it was dismissed by 
the Court of Appeal, they had, in other proceedings in the Landed Estates Court, 
admitted the right of the respondents, who were devisees of the lessor, and had 
gone into possession of the lands. — Heid^ that the right to a specific performance 
of the covenant had been abandoned, and was barred by laches and acquiescence. 

A judgment creditor of a tenant may maintain a suit for a renewal. 



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76 



CHANCERY REPORTS. 



1860. 
RoUt, 




Statement 



and in case of do issue he bequeathed such residue to his right heirs ; 
and in case of his daughter dying unmarried or without lawful 
issue, he devised Proleek to his nephew, James Wolfe M*Neale, 
for life, remainder to Donald M^Neale, fourth son of J. W. M'Neale, 
his heirs and assigns, for ever. 

The testator died in 1825, whereupon hb daughter Rosabella 
entered into possession of the lands of Proleek. Donald M'Neale 
died in 1829) intestate, and leaving his eldest brother, Malcolm 
M'Neale, his heir-at-law, who died in 1845, having devised his 
remainder in Proleek to his brother Robert M'Neale. 

On the 20th of October 1827, Rosabella M'Neale demised the 
lands of Rosabella Proleek, containing 30a. Ir. 20p., to James 
Forde, his heirs and assigns, in trust for J. W. M'Neale, for the 
life of Rosabella M^Neale, at the rent of £67* 3s. Id. ; and Rosabella 
M'Neale covenanted that if she should be enabled, either separately 
or in conjunction with any other person or persons, to grant the 
said premises for any longer term than was thereby granted, she 
should and would, at the request and proper costs of the said James, 
Forde, his heirs and assigns, make, do and execute all such fur- 
ther and other act and acts, &c., for the purpose of granting and 
releasing the said premises to him or them, for any term not exceed- 
ing a term of three lives, with covenant for perpetual renewal on 
payment of a peppercorn as a fine on the fall of each life, at and 
under the yearly rent thereby reserved, and other covenants in such 
cases usual ; and James Forde covenanted for himself and his heirs, 
with Rosabella M^Neale, to accept such grant and release, and to 
execute a counterpart; 

In Michaelmas Term 1847, Samuel Reid obtained a judgment 
against James W. M'Neale, and in the same Term he obtained 
another judgment against Robert M*Neale. Both judgments were 
entered up on a joint and several bond and warrant of attorney, 
executed by J. W. M'Neale and R. M'Neale for the same debt. 
James W. M^Neale died in 1853, having devised bis intere^ in the 
lease of the 20th of October 1827 to Robert M'Neale, who was also 
his heir-at-law ; and Rosabella M'Neale died in 1854, without hay- 
ing been married, and having devised her interest to the respondents 
William Skelton and Philip Skelton. 



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CHANCERY REPORTS. 



77 



1860. 



Some creditors of Robert M'Neale presented a petition in the 
Incumbered Estates Court, for the sale of the interest devised to 
Rosabella M*NeaIe, alleging that she only took a life estate under ^^^^^ 
the will of Daniel M'Neale, or, if she took an estate in quasi tail, skelton. 
that she had not barred it. The petition was, on the 2l8t of April statment 
1858, dismissed by the Court of Appeal, who decided (a) that Rosa- 
bella M'Neale took an estate in quasi tail, which had been barred 
by a renewal of 1 829. Anne M*Neale, Margaret M*Neale and Maria 
Frances M'Neale, who were petitioners in this matter, were parties 
in the proceedings in the Incumbered Estates Court and Court of 
Appeal. A receiver had been appointed in this Court over the 
lands, pending the proceedings in the Incumbered Estates Court by 
George Crawley, a creditor of Robert M*Nealev After the decision 
of the Court of Appeal, the respondents, on the 22nd of June 1858, 
obtained an order from Master Lyle to discharge the receiver, and 
(the tenants having refused to give up possession) they brought an 
ejectment, recovered possession and let the lands. Some other lands, 
the property of Robert M*Neale, having been sold in the Incumbered 
Estates Court, a question of compensation for injury done to the 
lands of Proleek, by the making of a watercourse on the lands so 
sold, arose between the creditors of Robert M'Neale and the respond- 
ents William Skelton and Philip Skelton; and, from May 1868 to 
April 1859, certain proceedings took place, in the progress of which 
Mr. £. Mathews, purporting to act as solicitor for the petitioners as 
creditors of Robert M'Neale, served notices in which he treated the 
respondents as owners of the lands of Rosabella Proleek. Ultimately, 
by an order of Judge Longfield, of the 15th of April 1859, £200 
compensation was awarded to the respondents. Those proceedings 
and notices were relied on by the respondents as an abandonment 
by the petitioners of the right claimed in this suit. They are set 
out at length in the judgment. On the 15th of February 1859, 
Samuel Reid assigned the two judgments to the petitioner Frederick 
Homan, in trust for the petitioners Anne M'Neale, Margaret 
M'Neale and Maria Frances M*Neale. In February 1860, the 
petition in this matter was filed by them, as judgment creditors of 

(«) Sec In re M*Neale (7 Ir. Chan. Rep. 388). 



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78 



CHANCERY .REPORTS. 



1860. 
RolU. 

* V ' 

HOMAN 

V. 

SKELTON. 

Statement. 



James Wolfe M^Neale, for a specific performance of the covenant 
contained in the lease of the 20th of October 1827, against William 
Skelton and Philip Skelton, the devisees of Rosabella M'Neale, 
Richard Lucas, the assignee of Robert M'Neale, and Theobald Forde, 
the representative of the lessee of the lease of the 20th of October 1827. 
The pnncipal defences set up by the answering affidavits of 
the respondents William Skelton and Philip Skelton, and those 
to which the arguments and judgment are dii*ected, were, first, 
that the petitioners, 8l9 judgment creditors of J. W. M^Neale or 
R. M*Neale, could not maintain a suit for the specific performance 
of the covenant. Secondly, that the covenant in the lease of the 
20th of October 1827 was a personal covenant, intended to be 
carried out, if at all, during her lifetime, and was not binding 
on her heirs or the respondents her devisees. Thirdly, that after 
the order discharging the receiver, the petitioners, and the other 
parties acting with them, elected not to take any proceedings to 
enforce a renewal, and relinquished all claim, considering that the 
lands were not then worth more than the rent of £67* 3s. Id.; 
and that the petition had been filed solely because Judge Xiongfield 
had awarded so large a sum in respect of compensation for the 
watercourse, and on a speculation that, if the suit were successful, 
that sum would form a fund for the payment of the petitioners, 
as creditors of Robert M'Neale. Fourthly, laches and acquiescence, 
and the Statute of Limitations. Fifthly, waste by James W. 
M^Neale, in making the watercourse through the lands. 



Argument, 



Mr. Serjeant Lawson, Mr. Chatterton and Mr. Xeech, for the 
petitioners. 

Smith V. Shannon (a) is a conclusive authority as to the 
right of a judgment creditor to maintain a suit for renewal. 
As to the construction of the covenant, the principle of law 
is, that when a covenant is attached to the demise, it is im- 
material whether the word '* heirs "^ is used. It runs with the 
lands, and is binding on the assignee of the grantor and on 
the lissignee of the grantee : Spencer's case (b). There were 

(a) 3 Ir. Chan. Bep. 462. (J,) 1 Sm. L. C. 23. 



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CHANCERY REPORTS. • 79 

mutual coyenants in the lease of 1827. A covenant to renew I860. 

RolU. 
runs with the land : Roe v. Hayley (a) ; Hyde v. Skinner (b). There ^ v^— ^ 

HOMAN 

was no waiver or abandonment of the petitioners' rights, under ^^ 

the covenant, by the proceedings in the Incumbered Estates Court skelton. 
and Court of Appeal ; for whatever part was taken in these pro- Argument, 
ceedings by the petitioners was taken by them in assertion of a 
different right and in a different character. They were creditors 
of Robert M^Neale, as well as creditors of James W. M'Neale* 
The interests of their two debtors happened to be conflicting^ 
but they were not, therefore, bound to elect against which of 
them they would proceed. They had a right to make the estates 
of both available for the payment of their demand. How then can 
it be said that, by proceeding to realise .a fund for the payment 
of the debts of Robert M^Neale, they abandoned their right to 
proceed against the estate of James W. M'Neale? The abandon- 
ment or waiver of a contract must be clearly proved, to be a defence, 
even in a Court of Equity. The acts relied on must be done with 
the intention to waive the contract : Clarke v. Moore (c). 

The respondents did not recover possession of the lands, under 
the ejectment, until November 1858. Until then, there was no 
possession adverse to the petitioners. There was no refusal by 
the respondents to grant the renewal; and that distinguishes this 
case from Walker v. Jeffreys {d)y Beaphy v. HiU {e\ Morgan v. 
Gurly (f)^ and Southcome v. Tke Bishop of Exeter {g\ Waste, or a 
breach of covenant by the tenant, is not a valid defence to a suit for 
renewal : Trant v. Dwyer (A) ; Brown v. The Marquis of Sligo (t ). 

Mr. Brewster^ Mr. Sullivan and Mr. M*Blain^ for the re- 
spondents. 

The covenant in the lease of the 20th of October 1827 was 

(a) 12 Eaut. 464. (b) 2 P. Wma. 136. 

(c) IJ. & L. 123. (rf) I Hare. 347. 

(0 2 Sim. & St. 20. (f) 1 Ir. Chan. Bep. 482. 

(g) 6 Hare, 213. 

(A) 1 Dow., N. S., 125; S. C, 2 BU., N, S„ 11. 

(0 10 Ir. Chan. Rep. 1. 



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80 



CHANCERY REPORTS. 



1860. 
RolU, 

HOMAN 
V, 

8ILELTON. 

Argument* 



Nov. 12, 
Judgfnent, 



not binding on the heirs of Rosabella M'Neale. It was binding 
on her during her life, and the lessee might, during that time, 
have compelled her to perform it; but it conferred no obliga- 
tion binding her heirs. No action on it could be maintained at 
Law against them, and, a fortiori^ no suit for specific performance 
could be maintained in Equity : Piatt on Covenants, pp. 448 ahd 
449* The covenants appear to have been framed designedly with 
that view ; fof , in the covenant by the lessee, his heirs are 
bound, whereas, in the covenant by the lessor, the word " heirs" 
is omitted. It ih therefore a mere personal equity, attaching on 
the conscience of the party, and not descending with the land : 
Sug, Ven, Sf Pur.^ pp. 612, 613; Kent v. Stoney (a); Jones v. 
Kearney (b.) The doctrine of laches, as established by Morgan v. 
Gurley (c), Heaphy v. Hill (rf)j and Southcome v. The Bishop of 
Exeter (tf), forcibly applies to this case. No claim was made 
during the lifetime of Rosabella M^Neale, from 1827 to 1854; ' 
and, after her death, not only was no claim made, but the claim 
was abandoned and proceedings were taken, which amounted to a 
disclaimer of the title of the reversioners: Doe d. Phillips v. 
Rawlings (f). 



The Master of the Rolls. 

The petition in this case has been filed by Frederick Homan, as 
assignee of a judgment, entered on a bond and warrant of attorney, 
as of Michaelmas Term 1847, against James Wolfe M'Neale, at suit 
of one Samuel Keid, and also as assignee of a judgment, of equal 
date, entered on the same bond and warrant, against Robert 
M'Neale, for the specific performance of a contract to execute a 
lease for three lives, with a covenant for perpetual renewal, which 
contract is contained in a lease made by Rosabella M^Neale to 
James Forde, and which bears date the 20th of October 1827* The 
judgments were assigned in February 1859 by Samuel Reid to 
Frederick Homan. Frederick Homan was a trustee for the other 
petitioners. James Forde, the lessee in the said lease, was a trustee 



(<t) 9Ir. Chan. Rep. 249. 
(c) 1 Ir. Chan. Bep. 482. 
(e) 6 Hare, 213. 



(6) 1 Dr. & War. 134. 
(<0 2 Sim. k St. 20. 
09 4 C. B. 200. 



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SI 



for James Wolfe M'Neale. The facts of the case, so far as they I860. 

RoUs, 
appear to me to be material, are as follow: — Rosabella M'Neale, ^ — -v — ' 

HOMAN 

being seised of the lands of Proleek, in the county of Louth, by ^^ 

indenture, dated the 20th of October 1827, and made between the skelton. 
said Rosabella M'Neale, of the one part, and James Forde (since judgment. 
deceased), of the other part, demised to the said James Forde, and 
to his heirs, part of the townland of Prqleek, in the county of Louth, 
containing 30a. Ir. 23p., plantation measure, to hold unto the said 
James Forde, his heirs and assigns, from the 1st day of November 
1826, for the life of the said Rosabella M^Neale, at the yearly rent 
of £67. ds. Id. sterling, payable half-yearly, on the days therein 
mentioned ; and the said Rosabella M'Neale did thereby covenant, 
proihise and agree, to and with the said James Forde, his heirs and 
assigns, that if she, the said Rosabella M^Neale, should be enabled, 
either separately, or in conjunction with any other person or per- 
sons, to grant the said premises for any longer term than was 
thereby granted, she the said Rosabella M^Neale should and would, 
at the request and proper costs of the said James Forde, his heirs 
or assigns, make, do and execute all such further and other act and 
acts, deed and deeds, for the purpose of granting and releasing the 
said premises to him or them, for any term not exceeding a term of 
three lives, with covenant for perpetual renewal, on payment of a 
peppercorn as a fine on the fall of each life, at and under the 
yearly rent thereby reserved, and other covenants in such cases 
usual ; and the said James Forde did thereby for himself, his heirs 
and assigns, covenant and agree, to and with the said Rosabella 
M'Neale, to accept such grant and release, and to execute a 
counterpart thereof, as aforesaid. This b the covenant or contract 
the specific performance of which is* sought in this suit. It will be 
observed that the rent reserved by the said lease was upwards of £2 
an acre, which will account for the delay of thirty-three years in 
seeking to enforce the specific performance of the ■ contract, and 
which contract wx>uld never have been sought to be enforced, except 
for the order of Judge Longfield, of April 1859, to which I shall 
hereafter advert. 

It appears, from the decision of the Court of Appeal, in the case 
VOL. 11. 11 



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CHANCERY REPORTS. 



1860. 
RoiU, 

HOMAN 

V, 

8KELTON. 

Judgment. 



of In re M^Neale (a), that, at the time of the execution of the lease 
of 1827, Rosabella M'Neale was seised of an estate in quasi tail, 
under a head-lease for lives renewable for ever, and that such estate 
in quasi tail was barred bj a renewal of the head-lease in 1829; 
and Rosabella M'Neale, therefore, had th6 power, when she made 
the lease of 1827, of barring such quasi estate tail, and making a 
sub-lease for lives renewable for ever. 

Rosabella M^Neale, being seised m qttasi fee of the immediate 
reversion of the lease of the 20th of October 1827, made her will, 
in writing, bearing date the 28th day of October 1853, and thereby, 
after devising certain other lands situate in the county of Louth, she 
devised all the rest, residue and remainder of her real and personal 
estates, situate in the county of Louth, to the respondents William 
Skelton and Philip Skelton, their heirs and assigns ; and the said 
Rosabella M^Neale died in the year 1854, without having altered or 
revoked her said will. 

The lease of the 20th day of October 1827 was made to the said 
James Forde, in trust for James Wolfe M*Neale, since deceased. 
James Wolfe M^Neale being, along with his son Robert M'Neale, 
indebted to Samuel Reid in the sum of £2510, they, iri order to 
secure the repayment thereof, executed their joint and several bond 
to Samuel Reid, bearing date the 10th day of November 1847, with 
warrant of attorney for confessing judgment thereon, in the penal 
sum of £5020, upon which bond the said Samuel Reid, on the^ 20th 
day of December 1847, entered a several judgment in the Court of 
Queen's Bench, against the said James Wolfe M'Neale, for the said 
penal sum, and, ob the same day, entered a several judgment in said 
Court against the said Robert M^Neale, for the said penal sum. 

By indenture, bearing date the 15th of February 1859 (at which 
time the respondents William and Philip Skelton were in possession 
of the lands demised by said lease, adversely to any claim of Samuel 
Reid, or of the petitioners), and which indenture was made between 
tl)e said Samuel Reid, of the first part, the petitioners Anne M^Neale, 
Margaret M^Neale and Maria Frances M^Neale, of the second part, 
and the4>etitioner Frederick Homan, of the third part, the said Samuel 

(a) 7 Ir. Chan. Rep. 388. 



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83 



1860. 
RolU. 



HOMAN 

V. 

8KELT0N. 



Reid assigned to the petitioner Frederick Homan the said judgment 
obtained against the said James W. M*Neale, and likewise assigned 
to him the said judgment obtained against the said Robert M'Neale, 
and memorials of the said assignments were, on the 14th day of 
March 1859, duly enrolled. The assignments were in trust for the Judgment, 
petitioners Anne M'Neale, Margaret M*Neale and Maria Frances 
M^Neale ; and the assignn^nts were made for the purpose of insti- 
tuting this suit, as I shall just now explain. James Wolfe M'Neale 
died in June 1853 ; and the petitioners allege that his estate, under 
the lease of 1827, and the contract therein contained, was bound bj 
the judgment against him. 

James Wolfe M^Neale made his will^ dated the 29th of January 
1853, and thereby devised all his estate and interest in the [said* 
lands to his son, the said Robert M*Neale. 

Rosabella M'Neale was then living, and Robert M'Neale, who 
was heir-at-law, as well as devisee, of James Wolfe M'Neale, 
became entitled to the lands for the life of Rosabella, and to the 
benefit of the contract contained in the said lease of October 1827. 
The estate and interest in the said lands, of which the said Robert 
M'Neale became so seised, was, of course, bound by the judgment 
against him, and was alsd bound by the judgment on the same bond 
against his father. The petitioners seek to sustain this suit as 
assignees of the judgment against J. W. M'Neale, being apprehen- 
sive that their having been parties to the proceedings, to which I 
shall just now refer, in the Landed Estates Court, as creditors of 
Robert M^Neale, might affect their right to maintain this suit. 

Robert M^Neale was discharged as an insolvent debtor, in the * 
year 1854, and all the estate and interest of the said Robert 
M'Neale, in the said lands, became vested in Richard Lucas, who 
was appointed assignee by the Insolvent Court. James Forde died 
in the year 1837, and his heir-at-law is a respondent. Some mat- 
ters are "put in issue by an amendment of the petition, which do 
not appear to me to be material, from the view I take of the case. 

Several grounds of defence have been set up in the affidavit by 
way of answer, filed by the respondents William Skelton and Philip 
Skelton, the devisees of the said Rosabella M'Neale. One, at least, 



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CHANCERY REPORTS. 



1860. 
RoUs. 




Judgwient* 



of those grounds of defence I consider to be sustainable, and I shall 
refer to the facts on which that defence rests. 

Rosabella M'Neale claimed to be entitled to the lands demised bj 
her by the lease of the 20th of October 1827, under the will of Daniel 
M<Neale, dated the 22nd of April 1822. That will is set out in 
the report of In re IPNealcy reported 7 /r. Chan. JRep^^ p. 389* 
Daniel M'Neale, the testator, was ej^titled to the said lands, 
under a head-lease for lives renewable for ever. A question arose 
as to whether Rosabella M^Neale was entitled to said lands under 
said will, for her life, or in quasi tail. There was a devise. over in 
said will, in the event, which took place, of Rosabella M'Neale 
dying unmarried, or without issue, to the said James Wolfe M^Neale, 
for life, with remainder to Donald M'Neale, fourth son of James 
Wolfe M^Neale, his heirs and assigns. Donald M'Neale having 
died without issue, Malcolm M^Neale, his eldest brother, became 
entitled to whatever estate or interest Donald M'Neale had, as his 
heir-at-law. Malcolm M'Neale died in 1845, and devised all his 
estate and property to the said Robert M^Neale. James Wolfe 
M'Neale having died in 1853, it became the interest of the creditors 
of Robert M^Neale to contend that Rosabella M^Neale was only 
entitled to a life estate, under the will of Daniel M^Neale; and 
some of those creditors having filed the petition in the Incumbered 
Estates Court, set forth in the answering affidavit, an absolute order 
for a sale of the part of the lands of Proleek, demised by the lease 
of the 20th of October 1827, was made, the creditors not claiming 
that the lease should be sold, but insisting that it had determined, on 
the ground that Rosabella M^Neale was only tenant for life, and that 
the said lease, and the contract sought by this petition to be enforced, 
had determined by her death, and that Robert M'Neale was entitled 
to the lands, discharged of said lease and contract, as devisee of the 
heir-at-law of the. remainderman Donald, to whom the devise was 
made by the will of 1822. This case was, of course, wholly incon- 
sistent with the claim now made by the petitioners, so far as they 
are judgment creditors of Robert M'Neale ; the present claim being, 
that they are entitled to have a specific performance of the con- 
tract in said lease, entered into by Rosabella M^Neale ; and their 



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CHANCERY REPORTS. 



85 



case in the Landed Estates Court being, that the lease and the eon- 
tract were at an end by her death. 

The respondents William Skelton and Philip Skelton^ who in- 
sisted, in the Landed Eata1;^s Court, that Rosabella was tenant in 
quasi tail, and not tenant for life, and that she had barred the quasi 
estate tail in 1829, and that they were entitled, under his will, 
obtained a ruling from Judge Longfield, dated the 13th of Novem- 
ber 1857, whereby he ordered that the order for the sale should be 
discharged, and that the petition, as to the lands called '* Rosabella 
Proleek," which were the lands demised by the lease of 1827, and 
also as to certain other lands, should be dismissed. That decision 
was affirmed by the Full Court, and ultimately by the Lord Chan- 
cellor and Lord Justice of Appeal, who decided that Rosabella 
M*Neale was tenant in quasi tail, and that she had barred the 
entail ; and that the said William Skelton and Philip Skelton, two 
of the respondents in this matter, were entitled to said lands, under 
her will. The order of the Court of Appeal was made on the 
21st of April 1858, and the case is reported, as I have stated, in 
the 7 Ir. Chan. Rep. The present petitioners, Anne M'Neale, 
Margaret M^Neale and Maria Frances M'Neale, were parties to the 
said appeal, and bound thereby. In what right they were parties 
I do not know ; but the ingenioua plan of obtaining assignments of 
the two judgments in February 1859, after the decision of the Court 
of Appeal, was to endeavour, by suing in a new right, to avoid the 
effect of their proceedings in the Incumbered Estates Court and 
Court of Appeal. Now, of course, it was open to the present peti- 
tioners, and to the other creditors of Robert M^Neale, to have 
applied to the Landed Estates Court, to sell the estate and interest 
of Robert M*Neale, under the lease of 1827, and the covenant 
therein contained, after the title of Rosabella M'Neale was estab- 
lished by the decision of the Court of Appeal ; but I presume that 
they thought it then unadvisable to do so, having regard to the 
lease having demised only 30a. Ir. 23p., and the rent reserved being 
£67. 3s. Id. 

George Crawley, one of the petitioners in the Incumbered Estates 
Court, had filed his cause petition in the Court of Chancery, on or 



I860. 
RoUs. 

ROMAN 

V. 

SKELTON. 

Judgment. 



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86 CHANCERY REPORTS. 

1860. about the 12th of January 1857, against Robert M'Neale and 
RoUm. 
> , ' Richard Lucas, his assignee under the Insolvent Act, for the pur- 
pose of raising, out of the estate and interest in said lands, sought 
8KELTON. to be sold in the Incumbered Estates Court, the amount of a certain 
Judgmeru, judgment debt due by the said Robert M'Neale ; and, on the 17th 
of August 1857, one Robert Fagan was appointed receiver over the 
said estate and interest, the property of the respondents in this 
matter, William and Philip Skelton, who had not been made parties 
to such proceedings. The said Wiliam Skelton and Philip Skelton 
having discovered such proceedings, they moved before Master 
Lyle to discharge the receiver. Master Lyle made an order on the 
said motion, on the 22nd of June 1858, and thereby ordered that the 
receiver should be discharged, and that he should pay to William and 
Philip Skelton the rents which he had received out of the said lands, 
and he ordered the petitioners in the said matter to pay the costs of 
the motion. The respondents William and Philip Skelton were 
unable, notwithstanding the said order, to obtain possession of the 
said lands, and were obliged to bring ejectments in the Superior 
Courts against the occupying tenants, and were put to large costs 
and expense, which have never been repaid. The said respondents 
William and Philip Skelton having, at last, got possession, and no 
claim having been put forward for a performance of the covenant in 
the lease of 1827, they let the lands to one Launcelot Coulter, at the 
rent of £75, for one year from the 1st of November 1858. The 
title of the said William and Philip Skelton was thus distinctly 
adverse to the claim of any persons claiming under the covenant in 
the lease of October 1827. The said William and Philip Skelton, 
. on the 1st of June 18599 caused advertisements to be inserted in 
the * public newspapers, and ciiused hand-bills to be posted, for a 
letting of the said lands, from the 1st of November 1859, and which 
advertisements were inserted and hand-bills posted before the letter 
of the 11th of June 1859, to which I shall just now advert. It is 
difficult to understand on what principle, on the facts I have now 
stated, Robert M^Neale's creditors, including the petitioners, wholly 
disavowing, in the Incumbered Estates Court and before the Court 
of Appeal, the title of RosabeUa M^Neale to make the lease of 1827, 



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CHANCERY REPORTS. 87 

for a longer period than her own life, and wholly disavowing the 1860. 
title of the landlords and reversioners, the present respondents Wil- 




liam and Philip Skelton, and allowing the receiver to be discharged 
hj Master Lyle's order, and an ejectment to be brought, and posses- 
sion to be taken thereunder, prior to the 1st of November 1858, and Judgment* 
allowing a lease to be made by the said William and Philip Skelton, 
that those creditors should now allege that the right to enforce perform- 
ance of the contract subsists. In fact there was no intention to seek a 
renewal; all notion of the kind was abandoned, until some circum- 
stances took place in the Incumbered Estates Court, which led to 
this petition, which I shall now state. 

Certain other lands, the property of Robert M^Neale, were sold in 
the Incumbered Estates Court, and a sum of £1008. 10s. 4d., part of - 
the proceeds of such sale, was retained by said Court, as and for the 
value of the mill-race or watercourse constructed through the lands 
pf Proleek, for the purpose of indemnifying and compensating the 
owners of said lands for the damages occasioned thereto by reason of 
the said watercourse ; and the said respondents William and Philip 
Skelton, having been declared the owners of that part of said lands 
of Proleek called Rosabella's Proleek, which are the subject of this 
suit, and which were demised by the lease of October 1827, they 
thereupon became entitled to a proportional part of the said sum, in 
respect to that portion of the said mill-race which runs through 
said part of the lands called Rosabella's Proleek. Edward Mathews, 
as solicitor for the petitioners who claimed in the Incumbered ^ 

Estates Court as creditors of Robert M'Neale, and who is solicitor 
for the petitioners in this suit, caused the solicitor of the said re- 
spondents William and Philip Skelton to be served with a notice, 
bearing date the 20th of May 1858, of an application to be made to 
Judge Longfield, for an order directing that John Neville, Esq., 
C. £. (who made the valuation of the watercourse in respect of which 
the sum of £1008. 2s. 6d. was set apart, out of the moneys produced 
by the sales in the said matter, as the value of the said watercourse, 
and which had been vested in Government stock, and then stood to 
the credit of the said matters), should be at liberty to apportion the 
said amount (the value of the said watercourse), as between the 



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88 



CHANCERY REPORTS. 



Judgment, 



1860. portion of the lands of Proleek called Rosabella M'Neale's Proleek, 
Ro 8. through which the said watercourse ran (t. e., the part demised by 
HOMAN ^^^ j^^^ ^^ October 1827), and the other parts of the lands of Pro- 
SKELTON. leek through which it also ran, and to report his opinion, as to the 
said apportionment, to Judge Longfield ; and that a further appli- 
cation would be made to the said Judge, that the amount of such 
apportionment, in respect of Rosabella M'Neale's Proleek, should be 
paid to the said respondents William and Philip Skelton, who had 
been declared entitled to the said , Rosabella M'Neale's Proleek. 
Now this notice, served by £. Mathews, then and now solicitor for 
the petitioners, distinctly recognised the right of the respondents 
William and Philip Skelton to the possession of the lands. The , 
said notice was afterwards withdrawn, and a further notice of 
motion was served by the said Edward Mathews, on the 8th of 
December 1868 (t. «., after Master Lyle had discharged the receiver, 
and after William and Philip Skelton had obtained possession under 
the ejectment, and let the lands), on the solicitor of the said 
respondents William and Philip Skelton, for an order that John 
Neville, Esq., C. E. (who made the valuation of the watercourse, in 
respect of which the sum of £1008. 10s. 4d. was set apart, out of 
the moneys produced by the sale in the matter of the said petition, 
as the value of the said watercourse, and which said sum had been 
invested in the purchase of £1008. 2s. 6d. consols, and then stood to 
the credit of the said matter), should be at liberty to proceed to 
apportion the said amount, as between the portion of the lands of 
Proleek called Rosabella M'Neale*s Proleek, through which the 
said watercourse ran, and the other parts of the said lands of Pro- 
leek, through which it also ran, and to report his opinion, as to the 
said apportionment, to Judge Longfield ; iand that further applica- 
tion would be made to the said Judge, that the amount of such 
apportionment, in respect of Rosabella M*Neale's Proleek (t. «., the 
portion demised by the lease of October 1827), should be paid to 
\he said respondents William and Philip Skelton, who had been 
declared entitled to the said Rosabella M'Neale's Proleek. That 
notice of Mr. Edward Mathews, then and now solicitor for the 
petitioners, again recognised the right of the respondents to the 



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89 



landa, unaffected bj any contract. An order on the said last-men- 1660. 

Rolls, 
tioned notice was made by Judge Longfield, on the Idth of Decern- ^^.^ — 



HOMAH 

ber 1858, whereby it was ordered that Mr. John Neville, C. E., ^ 

and any other sarreyor the said respondents William and Philip skslton. 
Skelton might nominate, should be appointed to determine the Judgmmu. 
value of the watercourse passing through Rosabella M'Neale's Pro- 
leek (t. «., the lands in the lease of October 1827), without refer- 
ence to the sum set apart, and that the rest of the motion should 
stand over. The said WiUiimoi and Philip Skelton, pursuant to the 
said order, appointed Christopher Mulvany, Esq., C. E., as their 
surveyor; and the said John Neville and Christopher MulviCtoy 
did not agree as to their estimate of the value of the said water- 
course passing through Rosabella M'Neale's Proleek (the property 
of the said respondents William and Philip Skelton), inasmuch as 
the said John Neville valued the same at £13. 15s. only, whereas 
the said Christopher Mulvany considered that the said respondents 
were entitled to the sum of £200 sterling, or thereabouts, in respect 
of the said value. 

The said Edward Mathews caused a further notice of motion, 
dated the 8th of March 1 859, to be served on the said respondents* 
8<dicitor, for an order that, out of the funds in Bank to the credit of 
the said matter, the sum of £13. 15s. lOd. cash should be paid to 
the said William and Philip Skelton, in respect to the value of that 
part of the mill-race which ran through that portion of the lands of 
Proleek called Rosabella M'Neale's Proleek. So long as Mr. E. 
Mathews, as solicitor for the petitioners, thought that £13. 15s. Od. 
was what would be payable to William and Phillip Skelton, he and 
his clients were determined not to enforce the contract, but wholly 
abandoned all claim in respect of it ; but, on that motion coming on 
to be heard before Judge Longfield, on the 15th of April 1859, it 
was declared that the said respondents William and Philip Skelton 
were entitled to compensation in respect of the mill-race which ran 
through that portion of the lands of Proleek known as Rosabella 
M'Neale's Proleek, at the rate of twenty- three years' purchase, 
upon the valuation of the water-power, and land taken for the 
watercourse, as set forth in Mr. Mulvany^s report. This order of 
VOL. 11. 12 



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CHANCERY REPORTS. 



1860. 
RolU. 




Judgment. 



Judge Longfield quite altered the views of Mr. £. Mathews and his 
clients. So long as it was supposed that £67. 3s. Id. rent was to 
be paid for 30a. Ir. 23p.» and that only £13. 15s. Od. was to be paid 
as compensation, it was not contemplated that the covenant in the 
lease of October 1827 should be enforced; and the contract was in 
fact abandoned, and the respondents William and Philip Skelton 
permitted to go into possession ; but a new light broke in on Mr. E. 
Mathews and the petitioners, when it was discovered that about 
£200 was about to be paid over by Judge Longfield to the said 
respondents ; and, accordingly, after said order was pronounced, the 
said Edward Mathews, without any notice to the respondents 
William and Philip Skelton, applied to Judge Longfield to put a 
stay upon said order, for the purpose of enabling him, as solicitor 
for the parties interested in the said estate of Robert M'Neale, to 
file a cause petition against respondents for the specific execution of 
the contract contained in said lease of the 20th of October 1827. 
Judge Longfield, in pursuance of such notice, put a stay on the 
payment. The first intimation made to the said respondents, of any 
intention to enforce said contract, was the letter of said Edward 
Mathews, dated the 1 1th of June 1859, in the petition mentioned, 
t. «., about twelve months after the receiver was discharged by Mas- 
ter Lyle. Mr. E. Mathews, apprehensive, I presume, of the efiect 
of his notices, and the acts of himself and the petitioners in the 
Landed Estates Court, adopted then the ingenious plan of getting 
an assignment of the two judgments, in February 1860, from Mr. 
Reid; and Counsel for the petitioners, feeling the difficulty of 
getting over the question of laches and abandonment, seek to uphold 
the petition, on the ground that the petitioners are assignees of the 
judgment against James Wolfe M'Neale, and are not to be affected 
by anything which took place in the Landed Estates Court, where 
they claimed as creditors of Robert M'Neale, although the judgment 
against James Wolfe M'Neale, and the judgment against Robert 
M'Neale, are for the same debt, and on the same bond. 

The respondents William and Philip Skelton state they believe 
that, after the said order of Master Lyle, of the 22nd of June 1858, 
had been made, discharging the receiver over the said lands, the 



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said petitioners, and the other parties acting with them, as aforesaid, 
did in fact elect and determine not to take any proceedings to 

ROMAN 

enforce a renewal of the said lease, pursuant to the said covenant, ^^ 

and did then relinquish and give up all claim thereto; the said skelton. 
petitioners considering that the said lands were not then worth more judgment, 
than the rent of £67. 3s. Id. per annum, reserved by the said lease. 
That statement is, I think, in accordance with the fact ; and they 
state, by said affidavit, that they believe the present petition has 
been filed against them solely and entirely because Judge Longfield 
awarded to them so large a sum, in respect of that part of said 
watercourse running through their lands; and they verily believe 
that said petition would never have been filed, if the valuation of 
the said John Neville, C. E., had been adopted, instead of the valu- 
ation of Christopher Mulvany, C. E.; and the affidavit further states 
that this petition is founded on the speculation that, if same be suc- 
cessful, and if the said respondents William and Philip Skelton are, 
in consequence, compelled to execute a lease for ever of said lands 
to the petitioners, then the sum so apportioned to the said respond- 
ents William and Philip Skelton, by the order of Judge Longfield, 
will not be paid to them at all, but same will form a fund for the 
payment of the petitioners, as creditors of said Robert M^Neale ; 
and the affidavit then submits that the course of proceedings adopted 
throughout towards the said respondents by the petitioners, and the 
parties in the same interest with them, has been unjust, and such as 
ought to disentitle them to the interposition of a Court of Ekjuity in 
their &vour. 

The first question which arises in this case is, whether the peti- 
tions Frederick Homan, as assignee of the judgment against James 
Wolfe M'Neale, or as assignee of the judgment against Robert 
M^Neole, is entitled to maintain this suit ; t. ^., whether a judgment 
creditor of a party with whom a contract has been entered into can 
enforce the performance of the contract ? I apprehend that question 
is not open for argument in this Court, having regard to the deci- 
sion of Lord Plunket, in Smith v. Shannon (a) ; and I therefore 
offer no opinion upon it. 

The second question arises under these circumstances : — The 
(a) 3 Ir. £q. Rep. 452. 



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respondents Willimn and Phillip Skelton, having obtained an 
order from Master Ljle, in the former Chancery canse to which 
I have adverted, dated the 22nd of June 1858, to ^Uscharge the 
receiver, who had been appointed over the lands in question, 
without notice to the said respondents, and the tenants in posses- 
sion having refused to give up the possession, notwithstanding 
the discharge of the receiver, the said respondents William and 
Philip Skelton brought an ejectment, and obtained possession of 
the lands, prior to the 1st of November 1858 ; and they then let 
the said lands to Launcelot Coulter, for one year from the 1st of 
November 1858, at the rent of £75. William and Philip Skelton 
being thus adversely in possession, the petitioner Frederick Homan 
obtained an assignment of the judgment against James Wolfe 
M^eale, and of the judgment agidnst Robert M'Neale, in the 
month of February 1859- The question is, whether the petitions 
Frederick Homan, who is trustee for the other petitioners, is at 
fiberty to purchase a right to file a cause petition in Equity, there 
being no doubt, on the facts of the case, that the assignments of the 
judgments were obtained for that purpose? In Story*s Equity 
Jurisprudence, voL 2, s. 1040c, it is said: — *' Indeed it has been 
laid down as a general rule that, where an equitable interest is 
assigned, in order to give the assignee a laeus standi injudicio in 
a Court of Equity, the party assigning such right must have some 
substantial possession, and some capability of personal enjoymenti 
and not a mere naked right to overset a legal instrument, or to 
maintain a suit." This subject was fully considered in the judgment 
of Lord Abinge]^, in Prosser v. Edmonds (a). 

In Fry on Specific Performance, pp. 55, 56, where the cases are 
collected, it is stated that, '^ Whilst it is clearly lawful to assign a 
right at the time undisputed, and if, from circumstances afterwards 
discovered, a necessity arises for litigation against third parties, the 
assignee may maintain his bill in Equity, yet it is as clearly against 
public policy to allow of the assignment of a mere naked right to 
file a bilL" Jn the present case, the assignments of the judgments 
were obtained by the petitioners in February 1 859, for the purpose 

(a) lY&.C.,Ex. Ca«.,481. 



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•f fiHDg this oaose petition, the respondents William and PhiUp 
Skelton being then adversely in possession. I do not, however, 
consider it necessary to oflfer an opinion on this question, as I am ^^■^^ 
of opinion, on other grounds which I shall hereafter state, that this skblton. 
suit cannot be sustained. , jiiZH^. 

The next question which arises is, whether this suit can be sus- 
tained, as Rosabella M'Neale did not by the covenant bind her 
hdrs? I do not consider it necessary to decide that point, although 
I am of opinion that the intention of the contract contained in the 
lease of the 20th of October 1827 was, tliat it should be carried out, 
if at all, by Rosabella herself, and during her lifetime; a matter of 
importance, in considering the question of laches, to which I shall 
hereafter advert. 

The next question which arises is, whether the petitioners are 
precluded by laches or acquiescence, or from the contract having 
been abandoned, from sustaming this suit ? The petitioners could 
not, of course, have acquired any right to a specific performance, by 
reason of the assignments of the judgments in February 1859» if the 
right to enforce the performance of the contract had then been lost 
by laches, or by the abandonment of the contract by those who, 
pre? ions to such assignments, represented the interest in the lease 
of the 20th of October 1827- It may be doubtful whether that 
lease was a lease for lives renewable for ever, such as was contem- 
plated by the Tenantry Act. It was a lease by Rosabella for her 
own life, withi a contract that, if she should be enabled to grant the 
premises for any longer term than was thereby granted, she the 
said Rosabella should and would, at the request and proper costs 
of the said James Forde, his heirs and assigns, do such further acts 
as would be necessary for the purpose of granting the said premises 
to him for any term not exceeding the term of three lives, with 
corsnant for perpetual renewal, on payment of a peppercorn as a 
fine on the fall of each life. But whether it was a lease within the 
Tenantry Act or not, I think the contract cannot now be enforced. 
James Forde, the lessee, was ^ trustee for James Wolfe M^Neale, 
and the contract was in efiect with James Wolfe M^Neale. Robert 
M'Neale, who claimed the reversion derivatively under the limita- 



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Judgment, 



tions contained in the will of Daniel M*Neale, and his creditors^ 
insisted, after the death of James Wolfe M*Neale, that Rosahella 
M'Neale had onlj a life estate in the lands under the said will, and 
that the said Robert M'Neale became, on her death, entitled to the 
lands ; and that the said Rosabella had no power to perform the said 
contract, having been only tenant for life. Rosabella died in J'ulj 
1854. The above claim was relied on, until the Court of Appeal 
decided, on the 21st of April 1858, that Rosabella M*Neale had a 
quasi esthte tail under the will of the said Daniel M'Neale. Surely, 
if a tenant is to be at liberty to allege that the title of the landlord 
has expired on his death, and that the tenant has thereupon become 
absolutely entitled to the lands in his own right, assuming that such 
denial of title in the landlord does not preclude the tenant from 
enforcing the contract. Doe v. Rowlings {a)^ Long v. Long{b)t 
it is the duty of the tenant, if he seeks to enforce the contract as 
against the devisee of the landlord, to proceed without any delay, 
after it has been solemnly decided that the claim of the tenant to the 
lands is unfounded. If James Wolfe M*Neale, or Robert M'Neale, 
had been informed by notice that their right to the performance of 
the contract was disputed, they or their creditors could not have lain 
by for any such period as has been permitted to elapse in this case. 
What has taken place is quite as strong a disavowal of the liability 
of the respondents William and Philip Skelton to perform the con- 
tract, as any notice which could have been served. The creditors 
seek to account for their delay, by the fact that they had insisted 
that Rosabella had no title enabling her to perform the contract, she 
being, as they alleged, only tenant for life, and that the lease of 
October 1827, and the covenant therein contained, expired on her 
death in July 1854. The Lord Chancellor and the Lord Justice of 
Appeal decided, in April 1858, that Rosabella was tenant in quasi 
tail ; and it followed from that decision that Rosabella could, in her 
lifetime, have executed the covenant in the said lease of October 
1827. The petitioners, in a different right from that in which they 
now sue, were parties to the appeal, and, after the decision of that 
Court, in effect admitted, in the Landed Estates Court, in the pro- 

(a) 4 Com, R Bep. 188. (6) 10 Ir. Ch. Bep. 406. 



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HOMAN 

V. 

SKELTON. 



ceediDgs I have detailed, the right of William and Philip Skelton to 
the lands, and did not think of raising the question of a right to 
enforce the specific performance of the agreement until after Judge 
Longfield made the order of April 1859* The receiTer in the former 
Chancery cause had been discharged in June 1858. The said re- Judgment, 
spondents William and Philip Skelton entered into possession prior 
to November 1858, after the ejectment was brought ; and they 
entered into a contract for the letting of the lands, for twelve 
months, in November 1858; all claim on foot of the contract was 
given up: bat when it appeared, by Judge Longfield's order of 
April 1859) that a sum of £200 or thereabouts was to be awarded to 
the said respondents William and Philip Skelton, as compensation 
in respect of the injury done to the said lands by their watercourse, 
the petitioners adopted the plan of obtaining assignments of the two 
judgments in February 1 859^ for the purpose of laying claim to the 
lands, by reason of the covenant contained in the lease of October 
1827, and with the view of obtaining the said compensation. I do 
not think that, consistently with any principles of Equity, a party 
can first dispute his landlord's title, and her right to carry the con- 
tract into effect ; then, when the landlord's title is fully established 
against him, abandon all claim on foot of the contract, permit his 
landlord to enter into possession, and deal with the lands, enter into 
a contract with a tenant, and then seek, under the circumstances I 
have stated, to set up the abandoned contract, which never would 
have been set up but for the decision of Judge Longfield in April 
1859. 

The principal cases on the subject were referred to by the Lord 
Chancellor, in Morgan v. Gurley (a). In that case, his Lordship 
adopted the language of Yice-Cbancellor Wigram, in Walker v. 
J^ffrey9^ who said, " Heapky v. HiU and Wilson v. Reid are direct 
authorities that, if one of two parties, concerned in a contract 
respecting lands, gives the other notice that he does not hold himself 
bound to perforp, and ^ill not perform, the contract between them, 
and the other contracting party to whom the notice is given makes 
no prompt assertion of his right to enforce the contract, Equity will 

(a) 1 Ir. Chan. Rep. 494. 



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consider him as acquiescing in the notice, and abandoning any equi- 
taUe right he might have had to enforee the contract, and will leave 
the parties to their remedies and liabilities at Law." 

Surely what took place in the Landed Estates Court in this case, 
and the acquiescence in the proceedings of William and Philip 
Skelton, which I have stated, are as strong an intimation to a party 
who had far years before controverted his landlord's title, as any 
notice which could have been served. Is it to be said, even if this 
were a case within the Tenantry Act, that a landlord i;^ho takes 
possession of land under an ejectment is to serve a notice un^er 
that Act after he has taken possession ? A notice to quit has been 
held to be a demand under the Tenantry Act Lord St. Leonards' 
observations in Butler v. Portarlington (a) are important in refer- 
ence to the proceedings in the Landed Estates Court. But whether 
the contract in this case falls within the Tenantry Act or not, a 
contract may be abandoned. Where a tenant holds under an agree- 
ment for a lease, pays his rent, has possession of the property and the 
enjoyment of all the benefits given him by the contract, the efiiuxion 
of time will not be a ground for resisting its enforcement. The 
tenant, in such case, has not been sleeping on his rights, but relying 
on his equitable title, without thinking it necessary to have his legal 
right perfected (h) ; but that principle does not apply where the 
petitioners allowed the landlord to take possession, four years after 
the death of Uie person for whose life the lease was made, and dis- 
puted the landlord's title during those four years, adopted a course 
in the Landed Estates Court which amounted to an abandonment 
of the coptraot, and then, when by the order of April 1869f they 
find that it would be their to interest enforce the contract, seek to get 
rid of the efiect of the abandonment, by obtaining an assignment of 
the judgment against James Wolfe M*Neale ; and they now contend 
that, although as creditors of Robert M^Neale, they may have aban- 
doned the contract, yet, by the contrivance of getting an assign- 
ment of the judgment against James Wolfe M^eale, that, as 
creditors of James Wolfe M'Neale, their abandonment of the con- 

(a) 1 Dr. & War. 62. 
(6) See i^ on Sj»9iafic Performance, 322, 323. 



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CHANCERY REPORTS. 97 

tract as creditors of Robert M'Neale is not to affect them. That the I860. 

RolU, 
abandonment of a contract is an answer to a suit for specific per- ' . ' 

HOMAN 

formance is clear. The cases are referred t^ by Lord St, Leonards ^ 

in his work on Vendors and Purchasers^ 11th ed,, pp. 172, 173. I am skelton. 
of opinion that the contract was abandoned in this case ; that the right Judgment. 
to enforce the contract is barred by laches ; that what has taken 
place amounts to more than mere neglect, and that the petition 
ought to be dismissed. 

The petition will be dismissed with costs. 



BRERETON v, BARRY. Miw 26, 28. 

June 1. 
Nov. 5. 

The petition was filed by Dilliana Brereton to recover an arrear of A, being 

tenant for life, 
jointure, alleged to have been charged in her favour, on the lands in withapowerto 

the petition mentioned, by a settlement executed on the 11th of remainder to 

July 1846, previously to her marriage with Ralph Westropp Brere- g^j^ byhia^m 

marriage, in 
tall, charged a jointure on his second marriage which was not aathorised by the power. 
A and B afterwards joined in barring the estate tail, for the pnipose of securing 
by mortgage a sum advanced to A. The disentailing deed recited the power and the 
charge of the jointure, and by it the lands were conyeved to a trustee, without pre- 
judice to the jointure, to such uses as A and B should appoint, and in de&ult of 
appointment to ^uch uses as were subsisting before the execution thereof, so as to 
secure and restore the former title to the lands. By a contemporeanous deed, to 
which the jointress was a party, reciting the power and charge of the jointure, and 
the contract for a loan of £1000 to A and B, to be secured by a mortgage dischai^ed 
of the jointure, but to the intent only that it should be postponed to the £I(^, 
and the interest on it ; and reciting the oonyeyance by the disentailing deed, subject 
to the jointure, A and B appointed the lands by way of mortgage to secure the 
£1000, and the jointress released the lands from the jointure, with a proviso that the 
release should take effect only for the purpose of postponing the jointure to the 
£1000. By another deed of the same date, reciting the disentailing deed, and that 
the lands were charged with £1000, for the use of A, he granted a rentcbarge to a 
trustee for B. — Held^ that the charge of the jointure being void was not confirmed 
by the deeds, and that the mortgage deed did not operate as a re-grant of the join- 
ture, the intention being merely to postpone the jointure to the mortgage. 

A tenant for life had a power, by deed or will, to charge a jointure, not exceeding 
£100 a-year, for every £1000 which he should actually and bona fide receive with 
his wife. On his marriage, a life estate of his wife, in a chattel mterest in lands, 
was conveyed to him for life. The tenant for life received, befpre the date of the 
will, about £2000 out of the rents of said \anda,^Ueid, that the charge by his will 
of a jointure of £200 a-year was valid if £2000 was received, and that if said sum 
was not received the jointure should abate proportionably. 

VOL.11. 13 



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^ ■ ■ V ■ " ' 

BKBKBTON 

r. 

BAKRT. 

Statement 



98 CHANCERY REPORTS. 

ton, or by his will, in pursuance of a power to jointure contained in 
a deed of the 31st of January 1818. 

A former suit had been instituted for the same purpose by the 
petitioner, which was dismissed, on the ground that the power had 
not been well executed, as no fortune had been received by Ralph 
W. Brereton, which would have authorised him to charge the 
jointure (a). But it having appeared, in the progress of the suit, 
that certain deeds had been executed on the 22nd- of November 
1 850, by Arthur Brereton, under whom the respondents claimed, 
which might have operated as a confirmation of the jointure, the 
petition in that suit was dismissed, without prejudice to the peti- 
tioner filing a further cause petition, stating fully the grounds on 
which she sought to establish her claim. 

The petition in this matter was accordingly filed. It relied on 
the settlement of the 11th of July 1846, as an execution of the 
power to jointure, and on the deeds of the 22nd of November 
1850, which are fully stated in his Honor's judgment, as preclud- 
ing Arthur Brereton, and the respondents who claimed under him, 
from questioning the execution of the power by the settlement of 
the nth of July 1846 ; and it also relied on the will of Ralph W. 
Brereton, as an execution of the power. The will was made on the 
18th of March 1855. The following was the part of it relied on as 
an appointment : — '* And whereas, by the marriage settlement exe- 
cuted by me previous to my intermarriage with my present wife, I 
charged all that and those the farms, towns and lands of Loughglass, 
&c,, with one annuity or yearly sum of £200, as and for a jointure, 
to be paid to my said intended wife, in case she survived me ; now 
I hereby ratify said arrangement, and I hereby charge said lands 
and premises with the payment of the annual sum of £200 sterling, 
to be paid and payable to my dearly beloved wife, as and for her 
jointure, in case she should survive me, with full power and lawful 
authority for the said Dilliana Brereton, or her assigns, at all times 
during her life, to enter into and upon said premises, and, if neces- 
sary, to distrain for same, and the distress and distresses there found 
to be disposed of according to law, and by the sale thereof to pay 
off and discharge any arrears of said annuity or jointure that may 

(a) See Brereton y. Barrif (10 Ir. Chan. Rep. 86). 



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be doe at the time of such difltrees, and all costs and expenses that 
may attend the distraining for same ; and I hereby further will and 
devise to my said wife, DiUiana Brereton, said annuity, yearly rent- 
charge and sum of £200, as and for her jointure, and to be charged 
and chargeable on the premises aforesaid/' The power in the deed 
of the 31st of January 1818, the settlement of the 11th of July 
1846, and the deeds of the 22nd of November 1850, are fully stated 
in his Honor's judgment, and in the report of the former case. 



1860. 
BoUt. 




Statement, 



Mr. Serjeant Lawson^ Mr. Bretaster and Mr. Philip Keoghy for 
the petitioner. 

They contended, ' first, as in the former suit, that, having regard 
to the value of the lands of Ardgart, and the rents received thereout 
by Ralph W. Brereton, the settlement of the 11th of July 1846 
was an execution of the power. Secondly ; that the effect of the 
deeds of the 22nd of November 1850 was to convey the estate, sub- 
ject to the jointure, so as to validate it, either by way of confirma- 
tion, Co. Lii^f p. 295 6, p. 800 a, or by way of re-grant ; that if 
a tenant for life, with a power of leasing, make a lease not war- 
ranted by the power, and he and the remainderman afterwards 
J9in in opening the estate, subject to the lease, the lease is 
confirmed: Steele v. Mitchell {a); Stoughton v. Crosbie(b); 
and those cases were analogous to the present case. There 
was full consideration given by the petitioner for a re-grant of 
the jointure : Nixon v. Hamilton (c) ; Lighthume v. WEvoy (d) ; 
Fitzmaurice v. Sadlier{e)\ In re HartfortQ). Thirdly; that 
the will of Ralph W. Brereton was a due execution of the power. 
Such a power might be executed in favour of the wife at different 
times, provided the limits of the power be not exceeded : 2 Sug. on 
Powers, p. 290, 7th ed. ; Hervey v. Uervey (g). That the will 
must be taken to speak from the testator's death; and from 1846 
until his death, Ralph W. Brereton had received from the rents of 
the lands of Ardgart a sum sufficient to empower him to cliarge the 



(a) 3 Ir. Bq. Rep. I. 
(c) 1 Ir. £q. Rep. 46. 
(e) 9 Ir. Eq. Rep. 595. 



(6) 5 Ir. Eq. Rep. 451. 
(rf) 4 It. Jut. 179. 
(f) 3 It. Jut. 5. 



Argument, 



(jg) 1 Atk. 561. 



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Argument. 



full amount of £200 a-year, or (if be did not receive £2000) to charge 
a jointure in proportion to the sum which he had actually received : 
Lord TyrconneH v. T^e Duke of Ancaster (a) ; Holi v. HoU (b) ; 
Lane v. Page (c). 

Mr. WarreUy Mr. Lawless and Mr. James Murphy^ for the 
respondents, contended that the valuation of the lands of Ard- 
gart, on pretence of which the jointure was charged by the settle- 
ment of the 11th of July 1846, was a valuation of the entire interest 
in the lands, and not of the petitioner's life interest in them, which 
alone was conveyed by that settlement. It was, therefore, not a 
bona fide settlement, but an evasion of the condition imposed on the 
power, and absolutely void against the remainderman. It could 
not, therefore, be confirmed. A voidable deed may, but a void one 
cannot, be confirmed: Co. Lit.^ p. 295 b; Massy v. Baiwell(d); 
2 Sug. on Powers, p. 308; StronghiU v. Buck{e). Even if 
the deed of 1846 were voidable only, the parties were not apprised 
of or aware of their rights in the transaction of 1850, and the latter 
could not, therefore, have the effect of a confirmation. They 
could not confirm what they knew nothing about: Murray v. 
Palmer (f) ; Dunbar v. Tredennick (g) ; Roche v. O'Brien (A). 
The cases of Steele v. Mitchell^ and Stoughton v. Crosbie, relied 
on for the petitioner, were cases where the assets of the tenant for 
life were liable on the covenants in the void leases ; and, in order 
to avoid circuity, the Court estopped the parties from denying the 
validity of the leases : Carpenter v. JBuller (t). The question as 
to whether the deed of 1 850 amounted to a re-grant was a question 
of intention. The parties had no intention that it should operate as 
a re-grant, for they were dealing with what they supposed to be a 
valid charge, and postponing it to the mortgage: In re Hartfori (k). 
The power might, no doubt, have been executed by the will, but 



(a) 2 Ves. 500. 
(c) Ambl. 235. 
(«) 14 Q. B. 78. 
(g) 2 Ball &B. 204. 
(0 8 M. & W. 209. 



(6) 2 P. Wms. 648. 
(<f) 4 Dr. & War. 79. 
Cf) 2Sch.&Lef.485.. 
(A) I Ball & B. 330. 
(*) 8 It. Jur. 5. 



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the same condition was annexed to its execution by the will as to 
lis execution bj the settlement of 1846; and the question still re- 
roainedf whether the receipt bj the husband of the rents of Ardgart 
was a sufficient compliance with that condition? The receipt of 
the income of lands of the wife was not a compliance with that con- 
dition, and would not authorise, the charge of the jointure: Doe v. 
Milbame (a). 



I860. 
Rolh. 



The Master of the Rolls. 

The petition in this case has been filed to recover an arrear of 
jointure, claimed by the petitioner to be due to her out of the lands 
in the petition mentioned, under the settlement executed on her 
marriage with Ralph Westropp Brereton, dated the 11 th of July 
1846, or under the will of the said Ralph Westropp Brereton ; and the 
questions which arise are, first, whether Ralph Westropp Brereton, 
who was tenant for life of said lands, under a deed of the 31st of 
January 1818, and who had a power to charge a jointure thereon, 
upon the conditions stated in that deed, duly executed such power 
by the settlement of the 11th of July 1846? Secondly; whether 
it is open to the respondents, who claim under Arthur Brereton, to 
raise the question that the power was not duly executed ? having 
regard to the provisions contained in certain deeds execdted by the 
said Arthur Brereton, who was the eldest son of Ralph Westropp 
Brereton by a former marriage, and to which deeds I shall hereafter 
particulaiiy refer. Thirdly; whether the power to jointure was 
duly executed by the will of Ralph Westropp Brereton? 

A former petition was filed by the present petitioner against the 
present respondents, to raise the arrears of the said jointure, which 
petition was referred to William Brooke, Esq., by the Lord Chan- 
cellor, undet the 15th section of thiB Court of Chancery (Ireland) 
Regulation Act The will of Ralph Westropp Brereton was not 
put in issue or relied on in that suit, the jointure halting been 
claimed only under the deed of the Uth of July 1846. Master 
Brooke, made an order on the 27th of October 1859» dismissing that 
petition, being of opinion that the petitioner had not any fortune 
authorising the power to be executed by the deed of July 1846, 

(a) 2 T. R. 721. 




ArgummU, 



Nov. 5. 
Judgment. 



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1860. 
BolU. 




Judgment, 



having regard to the terms of the deed of 1818, containiDg the power. 
The case was brought before me by way of appeal, and I was of 
opinion that the Master was right on the point argued before him 
and before me ; but I thought there might possibly be a question 
whether the respondents, who claimed as volunteers under Arthur 
Brereton (the eldest son of Ralph Westropp Brereton by a former 
marriage), could dispute the petitioner's claim to the jointure, having 
regard to certain deeds executed by Arthur Brereton, and referred 
to in the former petition. I, however, did not offer any opinion on 
the point, not having then seen copies of the deeds. That question 
not having been raised on the former petition, or the question 
.whether the will of Ralph Westropp Brereton was a due execution 
of the power, and Counsel for the petitioner being desirous to file a 
new petition, in which the alleged rights of the petitioner should 
be more fully put forward than in the former petition, I made an 
order on the appeal motion, dated the 22nd of February 1860, 
whereby it was ordered that the motion should be refused with costs, 
to be paid by the petitioner to the respondents, the order to be with- 
out prejudice to the petitioner, if so advised, filing a further cause 
petition, stating fully the ground on which she sought to establish 
her claim. The present petition has accordingly been filed. 

With respect to the first question, I was of opinion on the former 
petition that Ralph Westropp Brereton had not actually and bona 
fide received £2000, or any fortune, on his marriage with the peti- 
tioner, authorising the execution, by the deed of the 11 th of July 
1846, of the power of jointuring given by the deed of 1818. Hav- 
ing stated the material facts of the case, so far as they relate to the 
first question, when giving judgment on the former petition; and the 
grounds of my decision, it is not necessary to repeat them now. The 
case is not as yet reported, but it will, I presume be reported 
shortly (a). 

It is, no doubt, now stated, which was not alleged when the former 
petition was heard, that Ralph Westropp Brereton received £200 
at the time of his marriage ; and it will be necessary to direct a 
reference to the Master to inquire and report whether Ralph Westropp 
Brereton received ahy fortune with his wife, previous to or at 

(a) Since reported, 10 Ir. Chan. Rep. 376. 



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103 



the time of the execution of the deed of marriage settlement of 
the 11th of Jaly 1846, exclusive of the conveyance of tHe lands 
of Ardgart, as therein mentioned. I continue of the opinion ex- 
pressed on the hearing of the former petition, that the convey- 
ance of Ardgart to Ralph Westropp Brereton for life (the petitioner 
having only a life interest therein) did not authorise the settle- 
ment of the jointure of £200 a-year on the petitioner. The 
grounds of that opinion are stated in my former judgment 

The second question, however, which is raised for the first time 
upon the present petition, must be considered. The facU which give 
rise to that question are as follow: — Ralph Westropp Brereton 
married his first wife, Ellen Gray, in 1826. She died in 1832, leav- 
ing Arthur Brereton the younger her eldest son, and two other 
sons and three daughters her surviving. Ralph Westropp Brereton 
married the petitioner, his second wife, in July 1846, and, in con- 
templation of the said marriage, the settlement of the 11th of July 
1846 was executed, which purported to exercise the jointuring 
power contained in the deed of 1818, in favour of the petitioner. 
Arthur Brereton the younger attained his age previous to the 22nd 
of November 1860, that is to say, in March 1849* Under the 
limitations in the settlement of 1818, Ralph Westropp Brereton was 
tenant for life of the lands thereby settled, with remainder to 
Arthur Brereton in tail. Ralph Westropp Brereton was desirous to 
borrow money, on a mortgage of the said settled lands, and it was 
necessary, in order to effect that object, that Arthur Brereton should 
join in the mortgage, and it appears to have been considered neces- 
sary by the mortgagee that the petitioner should consent to give 
priority to the mortgage over her jointure. Four deeds were 
accordingly executed, on the 22nd of November 1850. The dis- 
entailing deed was made between the said Ralph Westropp Brereton 
and the said Arthur Brereton of the one part, and William John 
(jreary of the other part. It recites the settlement of the 31st of 
January 1818, and that, by indenture of the 11th of July 1846, 
Ralph Westropp Brereton, in exercise of the power contained in 
the deed of 1818, charged the lands with a jointure of £200 for the 
petitioner. It further recites that the said Ralph Westropp Brereton 



1860. 
BoOm. 




JudgfMnt. 



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CHANCERY REPORTS. 



1860. 
RotU. 




Judgment, 



and Arthur Brereton were desirous that the inheritance in fee-simple 
in the lands should be settled in the manner thereafter mentioned ; 
and after subh recitals the indenture witnessed that, for the purpose 
of barring the estate tail in the lands vested in said Arthur Brereton, 
the said Ralph Westropp Brereton, and Arthur Brereton, and the 
said Arthur Brereton, with the concurrence of Ralph Westropp 
Brereton, as protector of the settlement, conveyed to William John 
Geary the said lands (particularly described in the deed), to hold to 
said AV. J. Greary and his heirs, discharged of all estates tail, and all 
remainders over, ^* and without prejudice to the said yearly sum of 
£200, by the said indenture of settlement of the 11th of July 1846 
limited and secured to the said Dilliana Brereton during her life, 
as aforesaid, and the aforesaid power of enforcing payment thereof^ 
and to the term of ninety-nine years by the same deed limited 
to J. P. Molony and F. Jackson, and the trusts thereof,** upon the 
trusts and further purposes in said deed of the 22nd of November 
1850 mentioned ; that is to say, to such uses as Ralph Westropp 
Brereton and Arthur Brereton should, by any deed or deeds to be 
executed as therein mentioned, direct or appdnt ; and, in default of 
such appointment, or so far as same shall not extend, to such uses as 
were subsisting before the execution of the said presents, ** so as to 
secure and restore the former title to the said lands and premises, and 
every part thereof.'* There is some obscurity in the last passage, but 
the object appears to have been that the remainder in tail to the said 
Arthur should not be barred, except so far as the power given by the 
said deed to Ralph Westropp Brereton and Arthur Brereton should be 
exercised ; and, in fact, Arthur Brereton derived no benefit from uiy 
of the deeds, except so far as the £30 a-year provided for him by one 
of the said deeds (to which I shall just now refer) was a benefit. The 
petitioner was no party to the disentailing deed, but all the deeds of 
the 22nd of November 1850 are to be considered together, being part 
of the same transaction « A deed of equal date was executed (22nd of 
November 1850) by and between the said Ralph Westropp Brereton 
and Arthur Brereton, of the first part, Dilliana Brereton (the peti- 
tioner), the wife of the said Ralph Westropp Brereton, of the second 
part, Anne Williamson of the third part, Frederick Jackson of the 



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CHANCERY REPORTS. 105 



foorth part^ and Henij H(^kiQip Foster of the fifth part. . Tba^ 1860. 
deed recited the indeotore of the Slet of January 181$. It then - J^!^' - 
recited an indenture of the 22nd of JT^uary 1844, under which the ^^'^^'^ 
said Anne TyUliamson ^as entitled to a rentcharge of £70. 186. 9d^ babbt. 
charged on said lands in her fiiivour by the said Ralph Westrq>p judgment- 
BreretoB. It then recited t^e settlement of the 11th of July 1846, 
and the exercise of the jcMuturlng power by BaJph Westropp Brereton, 
charging the knds with the jointure of £200 a-year for the peti- 
tioner, and the ppwer of distress thereby c^reaAed. It then roeited 
that Arthur Brereton attained his age on the 18th of March 1849, 
and it .tl^en recited as follows : — '* And whereas the said Ralph 
Westr^pp BreretQn and Arthur Brereton, having occasion for the 
sum of £1000, have applied to the 8ai4 Henry H. Foster to lend 
theut the same, ^hich he ha3 accordingly agreed to, upon having 
the repayment thereof, with interest thereon in the meantime, 
sec^nred to him by a mortgage of the said lands." The deed then 
contaipp a further recital that the lands should be conveyed to the 
sfiid mortgagee, H. H. Foster, discharged of Anne Williamson's 
^wuity, " aud also free and discharged from the said yearly sum of 
£200, by the said indenture of settlement of the 11th of July 1846 
limited and secured to the said DiUiana Brereton (the petitioner) and 
her asAigna^^as hereinbefore is nientioned ; but as to the said yearly 
sum» to the.eod and intent only that the same should be postponed 
to the jwid sum of £1000, and the interest thereof, and that the 
said sum and interest ahould have priority over and be a prior or 
superior inctimbratice thereto, upon or affecting the said landsJ^ 
It then recited the deed of equal date, barring the estate tail, and the 
conveyance thereby to William John Geary, ^'subject, however, 
and without prejudice to the said yearly sum of £200, by the said 
indenture of the 11th of July 1846 limited and secured to the said 
Dilliana Brereton and her assigns during her life, and to the power 
for enforcing payment thereof; " and it recited the uses declared by 
the said deed of equal date, barring the entail ; and after such reci- 
tals the indenture witnessed that, in consideration of the said sum of 
£1000 paid to the said Ralph Westropp Brereton and Arthur Brereton 
by the said H. H. Foster, the receipt whereof they thereby acknow- 
VOL. 11. 14 



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106 



CHANCERY REPORTS. 



I860. 
BolU. 




Judgment, 



ledged, the said Ralph We^ropp Brereton and Arthur Brereton, 
in pursuance of the powers in the said disentailing deed of equal 
date, appointed the lands (particularly describing them) to the said 
H. H. Foster, subject to redemption on the repayment of the £1000 
with interest. The indenture then contained a clause whereby the 
petitioner released the lands from her jointure of £200 a-year, and 
all powers and remedies for securing payment thereof, and she 
joined in conveying the lands to H. H. Foster, discharged of the 
jointure, and from all powers and remedies for enforcing payment 
thereof. 

The indenture then contains a proviso and agreement that the 
release by the petitioner of her jointure should take effect only for 
the purpose of postponing and deferring the said yearly jointure of 
£200 to the said sum of £1000 ; so that the £1000 should be taken 
to be a prior incumbrance, but not otherwise. That deed was 
executed by Ralph Westropp Brereton, Arthur Brereton, Dilliana 
Brereton the petitioner, and Anne Williamson. By another deed, 
of equal date (22nd of November 1850), and purporting to be made 
by and between the said Ralph Westropp Brereton, of the first part, 
the said Arthur Brereton, of t^e second part, and Greorge Stamer 
Brereton, of the third pkrty after reciting that, under the deed of 
the 31st of January 1818, the said Ralph Westropp Brereton hath 
become, and now is, entitled to an estate for life, with remainder in 
tail male to his son, the said Arthur Brereton, in the said lands 
(describing them), the said deed of the 22nd of November 1850 
contains the following inaccurate recital of the disentailing deed, of 
equal date: — ** And whereas the said Arthur Brereton being, entitled 
to an estate in tail of and in said lands, expectant upon the decease 
of his father, the said Ralph Westropp Brereton, and, having 
attained his age of twenty-one years, by deed, bearing equal date 
with these presents, and made between the said Ralph Westropp 
Brereton and the said Arthur Brereton, of the one, and William 
John Geary, of the other part, the said Ralph Westropp Brereton 
and Arthur Brereton, according to their respective estates and 
interests therein, did grant, convey and assure, unto the said 
William John Geary, and to his heirs, all that and those the said 



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107 



several lands thereinafter more particularly mentioned, situate in 
the Queen's County, to hold to the said William John Greary and 
his heirs, for ever, upon the trusts therein mentioned, freed and 
absolutely discharged of and from all estates tail of the said Arthur 
Brereton, and all other estates tail, remainders, reversions, condi- 
tions and limitations thereinbefore expectant and depending ; " and 
then follows, as a recital of the contents of the disentailing deed, 
which is not contained therein, " but, nevertheless, charged with 
the sums of £1000 and £500, by way of mortgage, for the use of 
the said Ralph Westropp Brereton ; and subject thereto, that the 
said several lands should go and enure to the use of the said Ralph 
Westropp Brereton and his assigns, for and during the term of his 
natural life ; and, from and after the decease of the said Ralph 
Westropp Brereton (and what next follows is also an inaccurate 
statement of the disentailing deed), *' to the use of the said Arthur 
Westropp Brereton for life, with remainder to his first and other 
sons in tail male, with divers remainders over, as therein men- 
tioned." And then follows a recital that, in order to make a 
provision for the said Arthur Brereton, during the lifetime of the 
said Ralph Westropp Brereton, he the said Ralph Westropp jBre- 
reton had agreed to grant to the said Greorge Stamer Brereton 
one dear annuity or yearly rentcharge of £30, to be paid quarterly, 
to and for the use of the said Arthur Brereton, during the lifetime 
of his said father ; and, after such recitals, Ralph Westropp granted 
the rentcharge to the said trustee, for the use of the said Arthur 
Brereton. Arthur Brereton* does not appear to have executed that 
deefd. A fourth deed, of equal date, was executed ; but it does 
not appear to affect the questions in this case. 

Arthur Brereton died in November 1858, having previously exe- 
cuted a further disentailing deed, in April 1858, and thereby limited 
the lands to himself for life, and, after his death, to the respondents, 
in the manner therein mentioned. The respondents claim as volun- 
teers under Arthur Brereton ; and, if he was not at liberty to 
dispute the petitioner's jointure, neither are they. 

It is contended on the part of the respondents^that the entire amount 
of the mortgage money was received by Ralph Westropp Brereton. 



1860. 
RolU, 




Judgment. 



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108 CHANCERY REPORTS. 

1860. The mortgage deed contains the recital that the £1000 was paid 
to the father and son ; and there is a receipt indorsed on the deed. 




signed by both^ acknowledging the receipt of the money ; bat it 
appears to me that the recitals in the deed granting the annuity 
Judgnmt. ^^ ^^^ a-year to Arthur Brereton establish that the £1000 was 
for the use of Ralph Westropp Brereton alone, and received by 
him. The affidavit of Mr. Geary is also important on this poiot. 
Now, of course, if the jointuring power was not duly executed, 
and the execution was void, a void instrument cannot be con- 
firmed. But it has been argued, on the part of the petitioner, 
that the effect of the instruments was, that there was a new 
grant of the £200 a-year by Ralph Westropp Brereton and Arthur 
Brereton to the petitioner. I have considered this question with 
a desire to see sufficient ground to hold that there was a re-grant ; 
but I am of opinion that there was not a re-grant, and that the 
effect of the deed of mortgage was only to postpone the jointure 
for the benefit of Ralph Westropp Brereton, and to enable him 
to raise the £1000. It never occurred to the parties, so far as 
I can judge, from a careful perusal of the deeds of November 1850, 
that the jointure was invalid. The £30 a-year was not granted 
to Ardiur Brereton as a consideration for a confirmation or re-grant 
of the jointure. The £30 a-year was granted as a consideration 
for Arthur Brereton joining his father in the mortgage ; and the 
petitioner was only made a party at the instance of and for the 
security of liie mortgagee. The affidavit of Mr. Geary is important 
in the case. It is impossible, in considering the transaction of 
the 22nd of November 1850, not to feel that Arthur Brereton 
had not adequate and independent advice. There are observations 
in Savory v. King{a\ which are applicable to the present case. 
I cannot come to the conclusion that the petitioner joining with 
her husband, simply to give precedence to the mortgage over the 
jointure, made the deed a confirmation of the jointure, if it was void ; 
or a re-grant of a new annuity, which re-grant was not intended by 
the son, so far as I can judge, from a perusal of the deeds. The 
petitioner's Counsel have argued the question not upon the ground 

(a) 5 H. L. Cas. 627. 



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109 




of coDfirmation; but of a re- grant, feeling the difficulty of con- I860, 
tending that, under the circumstances of the case, the execution 
of the power, if void, could be confirmed ; but, even if the exe- 
cution of the power was not absolutely void, but only impeachable, 
I do not think, having regard to the authorities, that the petitioner Judgment, 
could sustain this suit, by reason of the provisions in the deeds 
of the 22nd of November 1850. Lord Si. Leonards^ in his treatise 
on Ven. and JPur., 13th ed., pp. 212, 213, states, " To give validity 
to a confirmation of a voidable conveyance, the party confirming 
must not be ignorant of his right ; nor, of cdurse, must his right 
be concealed from him by the person to whom the confirmation 
is made. He must know the transaction to be impeachable that 
he is about to confirm ; and with this knowledge, and under no 
influence, he must spontaneously execute the deed; and he must 
be fully aware not only of the fact upon which the defect of 
title depends, but of the consequences in point of law; and he 
must in fiict be a free agent, and not under the infinence of the 
previous transaction." I, therefore, am of opinion that there was 
no confirmation of the petitioner's jointure, and no re-grant of a 
new annuity. All that was contemplated, taking all the deeds 
together, was, that the jointure was to be postponed to the mort- 
gage; but it did not thereby acquire any additional validity. 

The remaining question is, whether the will of Ralph Westropp 
Brereton operated as an exercise of the power ? It was not con- 
tended that the execution of the disentailing deed, of the 22nd of 
November 1 850, extinguished the jointuring power. I had occasion 
to consider that question in 0*Fay v. Burke (a), and I then stated 
the ground Upon which I considered the power was not extinguished. 
It is contended, on the part of the petitioner, that in determining 
the question whether the will of Ralph Westropp Brereton operated 
as an execution of the power, the Court should take into considera- 
tion the rents of Ardgart received, from year to year, by Ralph West- 
ropp Brereton, before the execution of the will, and that such rents 
so received, having, as is alleged, exceeded £2000, Ralph Westropp 
Brereton was authorised to charge, by his will, a jointure of £200 

(a) 8 Ir. Chan. Bep. 244, 245. 



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110 CHANCERY REPORTS. 

I860. , a-year. It is contended, on the part of the respondents, that if a 
^ ■ V ' — * property conveyed to a husband for his life does not authorise the 

BBERETON . « «... , , , . - .. 

^^ execution of a power of jointuring, that the annual receipts of the 

BARRY. property, which would probably be spent as they are received, do 
Judgment. ^^ authorise its execution ; and that those annual receipts do not 
constitute a sum or sums '* actually and bona fde received" with 
the wife, within the meaning of the power. This appears to me to 
be a question of some difficulty, and it will be right to ascertain the 
amount of the rents of Ardgart received by the late Ralph Westropp 
Brereton, previous to the execution of his will. I am of opinion, 
however, that if £2000 was actually and bona fide received out of 
Ardgart, by Ralph Westropp Brereton, before the execution of 
the will, the power was well executed by the will ; and that if a 
less sum was received, the power was well executed, to the extei^t of 
the sums received ; that is, if less than £2000 was received, the join- 
ture of £200 must abate proportionally. It was not necessary, I 
apprehend, under a power in the terms of the power in this case, that 
the fortune of the wife should have been received at the period of 
the marriage. There may be successive executions of a power to 
jointure, such as is contained in the deed of 1818, in respect of 
successive portions of the wife's fortune received, from time to timt, 
by the husband : 2 Sug, on Powers^ 6th ed., vol. 2, p. 310 ; Zaueh 
V. Wooltton (a). If £2000, the property of the petitioner, had been 
received by Ralph Westropp Brereton, in one sum, shortly before 
the execution of the will, I presume it would not be denied that the 
jointuring power was well executed by the will. If this be so, 
it is difficult to understand why the jointuring power could not be 
duly executed, if the £2000 was received in annual or half-yearly 
sums, for some years previous to the execution of the will. If por- 
tions of the fortune of the petitioner, received from time to time by 
Ralph Westropp Brereton, previous to the execution of the will, 
from other sources than the rents of the lands of Ardgart, would 
have authorised Ralph Westropp Brereton to charge £100 a-year 
for the jointure of the petitioner, for every £1000 of such fortune 
60 received, it is difficult to understand why the fact of such sums 

(a) 2B1UTOW8, 1136. 



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CHANCERY REPORTS. 



Ill 



having been received in respect of the rents of the lands of Ardgart 
can make any difference. The power authorised Ralph Westropp 
Brereton, when in possession, to charge the lands with a jointure 
for such wife or wives as he should many, not exceeding £100 
a-year for every £1000 sterling which he should actually and bona 
fide receive with such woman or women as he should marry. I do 
not, of coarse, intend to intimate an opinion that, if I am mistaken 
on the first point, and that Ralph Westropp Brereton was entitled to 
charge £200 a-year jointure, by the deed of the 11th of July 
1846, valoing the interest in Ardgart, at that date, at £2000, the 
annual receipts of the rents of Ardgart would have justified the 
charge of a further jointure in respect of such receipts : nor do I 
express an opinion that, if £2000 in cash, or in the funds, had been 
given to Ralph Westropp Brereton, on his marriage, he could first 
charge a jointure in respect of the £2000, and then, at the end 
of several years, charge a further jointure in respect of the interest 
or dividends received. In holding the will a due execution of the 
power to jointure, I assume that the conveyance of Ardgart, by the 
settlement of the 11th of July 1846, did not authorise the elercise 
of the jointuring power by that settlement. 

To prevent the expense of proceeding with the reference which 
it will be necessary to direct, and in order to allow the opinion of 
the Court of Appeal tp be taken at once on the three questions of 
Law, I shall declare on the order my opinion on the first and second 
questions, and I shall also declare that if Ralph Westropp Brereton 
actually and bona fide received out of the lands of Ardgart, previous 
to the execution of his will, the sum of £2000, the jointuring 
power was well executed by the wilL If it should appear, on the 
reference, that a less sum was received, the jointure should be reduced 
accordingly ; but, I presume, when the legal questions are finally 
decided, the parties can ascertain the amount received, without pro- 
ceeding with the reference. It will be necessary, when directing 
the reference, also to direct a reference in respect of the allegation 
in the petition, that, upon the occasion of the petitioner's marriage, 
she gave to the said Ralph Westropp Brereton £200 in cash, and 
much valuable plate and other household effects. I doubt that the 



1860. 
Rolls. 

BRERETON 
BARRT. 

Judgment, 



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112 CHANCERY REPORTS. 

plate or household effeots can be taken into consideration, but that 
question can be more satisfactorily decided when the value is 
known. 

As a reference is directed bj the order, the costs must be reserved. 
Judgment. ^ ^^^^ make the following order : — 

Order, ^^ ^ ordered and declared, bj the Right Hon. the Master 

OF THE Rolls, that the conveyance of the lands of Ard- 
gart, to which the petitioner was entitled for her life, at 
the time of the execution of the marriage settlement bear- 
ing date the 11th of July 1846, to her late husband, Ralph 
Westropp Brereton, by the said settlement, for his life, 
if she should so long live, with a limitation, by the said 
settlement, to the petitioner, for her life, if she should sur- 
vive the said Ralph Westropp Brereton, did not authorise 
the exercise of the jointuring power vested in the said 
Ralph Westropp Brereton, under the deed of the 31st of 
January 1818, in the petition mentioned, having regard to 
the terms of the said jointuring power. And it is further 
ordered an^ declared, that the several deeds, dated the 22nd 
day of November 1850, did not, nor did any of them, amount 
to a confirmation or re-grant by Arthur Brereton, party to 
said deeds, of the jointure purporting to be appointed to the 
petitioner by the said deed of the 1 0th of July 1846. And 
it is further ordered and declared, that if Ralph Westropp 
BrereUm, before the execution of his ^ill, dated the 18th 
day of March 1855, actually and bona fide received the 
sum of £2000, or upwards, after all outgoings, opt of the 
rents of the said lands of Ardgart, the jointuring power of 
the deed of the 31st of January 1818 was duly executed 
by the said will. But it not clearly appearing what the 
amount of said rents, so received 1\rj the said Ralph 
Westropp Brereton, was, it is further ordered, that it be 
referred to William Brooke, Esq., the Master of this Court, 
in rotation, to inquire and report the net amount of the 
rents of the said lands of Ardgart actuaUy and Uma fide 



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CHANCERY REPORTS. 113 

received by the snid li<i1ph Westropp BreretOD, from the I860. , 
11th of Jiiij 1846, being the date of the said marriage ^ r-^ 

BHiEAETOIl 

settlement, down to the 18th of March 1855, the date of the 
said will, after all outgoings ; and also to inquire and report babry. 
the net amount of the rents of the said lands of Ardgart, 'oi^. 
actually and h(ma fide received, by the said Ralph West- 
ropp Bi-ereton, from the date of the said will to the date 
of the death of the said Ralph Westropj) Broreton, after 
all outgoings ; but the Court doth not at present d^ide 
whether or not the rents received by Ralph Westropp 
Brereton, after the date of his will, are to be taken into 
calculation. And the petitioner having alleged, by the 28th 
paragraph of the petition, that, upon the occasion of her 
marriage, she gave to the said Ralph Westropp Brereton 
£200 in cash, and much valuable plate, and other house- 
hold effects, it is further ordered, that it be referred to the 
Master to inquire avid report whether the said petitioner 
did, upon the occasion of her marriage, and at what date 
particularly, give to the said Ralph Westropp Brereton 
£200, or any other and what sum, and whether she gave 
to the said Ralph Westropp Brereton, on the occasion of 
her marriage^ and at what date particularly, any plate and 
household effects, and, if so, the value and particulars of 
AQch leqtectively : and the Court doth reserve further 
order, and the question of costs. 



VOL. llr Iff 



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114 CHANCERY REPORTS. 



1860. 
RottM. 



^ , , SCOTT V. SCOTT. 

May 1, 4. 

Aw. 7. 

Bequest of the Maby Keabnet, being entitled to two soma of £400 and £100 
interest of 

£500 to A for charged on lands, and being possessed of certain Waterford Bridge 
lifb, and as to 

the principi^, debentures, and other property, made her will on the 24th of De- 
cease of A, cember 1882, bj which she desired that all her debts should be 
oUieM>ropertY P^^ ^^ ^^^^ ^ convenient after her decease; and she devised aU 
meTXitf m2y ^^^ property to two trustees, upon trust to pay certain legacies, 
^^^^1^ Y^^ and upon further trust, to pay ** to my sister Catherine Kearney 

entitled nnto, the interest of £500 to which I am entitled under my father's 
in trust, for the 

use, benefit settlement (and which interest is now paid to me by the repre- 
andbehoofof" t— / r 
Band her chil- sentativcs of my late brother William Kearney and Mr. Alcock 
dren, " with- 
out the control of Wilton), for and during the term of her natural life; and^as 

dling of her to the principal thereof, from and after the decease of my sister, 

to'bepiid^hi *^^ as to all other property belonging to me, that I may die 

my stdd^^us^ scised and possessed of or entitled unto, in trust and for the use, 

SSrSsore^n ^^^^^ ^^^ behoof of my niece Hannah (Maria) Scott and her chil- 

^U that"^ ^^^^^ without the control or intermeddling of her husband, and to be 

took a life paid at such times and in such manner as my said trustees shall 

interest in all ' 

the piroperty, in their discretion think fit." Mary Kearney died shortly afW- 

with remain- ' "^ 

der to all her wards, leaving her sister Catherine Kearney and her niece Hannah 

children bom 

in A's lifetime, Scott surviving. Hannah Maria Scott had, at the death of the 

before and 

after the death testatrix, three children, and she had four children born after the 

^12. death of the testatrix. Hannah Maria Scott died on the 16th of 

Statement. -A-Ugust 1858; Catherine Kearney died in November 1858. The 

interest of the £500 was paid to Catherine Kearney during her 

life, and the interest of the debentures was paid to Hannah Maria 

Scott during her life. 

The petition was filed by James Sheppard Scott, one of the 

children of H. M. Kearney, bom at the death of the testatrix; 

and the question now disdussed at the hearing was, what interest 



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Hannah M. Scott took in the £500 charge and Waterford Bridge 
debentures ? 

Mr. Brewster, Mr. Blake, Mr. Leslie and Mr. A. Keogh, for 
the petitioners, and the children of H. M. Scott, born at the death 
of the testatrix. 

H. M. Scott, and the children born at the death of the testatrix, 
took as joint tenants: WtldPe e(ue(a). The rule in WikTs case 
was modified in Crockett v. Crockett (b) ; Audsley v. Horn (c). 
But there is nothing in this will to show an intention that the 
parent should take only a life estate. The words are, *'to be 
paid at such time and in such manner as my trustees shall in their 
discretion think fit" To whom was it to be paid ? To Hannah 
M. Scott, and her children. They took eo instanti at the death 
of the testatrix. It was then that the discretion of the trustees 
was to be exercised, and therefore the objects to take were to be 
ascertained then: 2 Jarman on Wills, pp. 335, 336; Gordon v. 
Whieldon (d) ; Buffar v. Bradford (e) ; Paine v. Wagner (f) ; 
Bustard v. Saunders (^) ; Sutton v. Tone (A) ; Mason v. Clarke (t) ; 
De Witte v. Be Witte {k) ; Cator v. Cator (/). 



1860. 
Rolls. 

' V ' 

SCOTT 

V. 
SCOTT. 

Argument, 



Mr. Sullivan and Mr. Arthur Close, for the children bom after 
the death of the testatrix. 

H. M. Scott took a life interest, with a power of appointment 
among all her children, whether bom before or after the death 
of the testatrix, or she took a life interest with remainder to h^ 
children as tepants in common : Audsley v. Horn (m) ; Ward v 
Gr(^ (n). The trustees are to pay the legacy to the separate use 
of H. M. Scott. That has been held to be inconsistent with the 
parent taking with her children as joint tenant: Morse v. 

(o) 6 Rep. 17. (fi) 2 Ph. 563. 
(c) 26 Bear. 195 ; on ^peal, 6 Jar., N. S., 205. 

(<0 11 Bear. 170. (e) 2 Atk. 220. 

(i) 12 Sim. 184. (g) 7 Bear. 92. 

(A) 6 Jut. 234. (0 17 Bear. 126. 

(A) 11 Sim. 41. (0 14 Bcay. 463. 

(m) Ubi sup, (n) Uhi sup. 



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18Q0. 
BoUs. 




Arpment, 



Nov. 7. 
Judgment, 



Morse (a) ; Mastm ▼. Clarke (6) ; Vauffhan y. The MarquU of 
Headford (e) ; Cratlford v. Trotter {d)i French v. French {e). 
As to the £500, in which a life interest was beqeathed to Catherine 
Kearney, it is clear thiit all the children born at the period of 
distribution, t. e^ the death of Catherine Keamej, are entitled: 
Jeffery v. De Vitre (f) ; and the same construction must be put 
on the word *' children," in respect of the bequest of the Waterford 
debentures, which was immediate, without the intervention of a 
preceding life estate : Ridgeway v. MunkiUrieh (g)^ 

Mr. Serjeant Lawion and Mr. Tandy^ for the trustees. 

The Masteb of tub Rolls. 

The questioa which arises in this case is, the construction to 
be put on the will of Maiy Kearney deceased, dated the 24th of 
December 1838. Mary Kearney was possessed of a sum of £400 
and. of another sum of £100, which constitute the £500 in her 
will mentioned, and was also possessed of certain Waterford Bridge 
debentures; and being so possessed, she luade her will, bearing 
date the 24th of Decemb^ 1833, wheioby she devised all her pro« 
perty to two trustees, on the trusts therein mentioned; and after 
certain trusts not material in the present case, the will ^proceeded 
to declare the trusts thus : ^* and, to my sister Catherine Eeamey, 
the interest of £500, to which I am entitled under my father's 
settlement (and which interest is now paid to me by the repre- 
sentatives of my late brother William Kearney, and Mr. Alcock 
of Wilton), for and during the term of her natural life ; and as 
to the principal thereof, from and after the decease of my sister, 
and as to all other property belonging to me, that I may die 
seised and possessed of, or entitled unto, in trust and for the use, 
benefit lUid behoof of my niece Hannah Scott and her children, 
without the control or intermeddling of her husband, and to be 



(a) Sim. 485. 
(c) 10 Sim. 639. 
(e) 11 Sim. 257. 



(*) 17 Beav. 126. 
(J) 4 Mod. 361. 
09 24 Beav, 296, 



(si) I Dr. & War. 84. 



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117 



paid at soch times and in sach manner as my said trustees shall 
in their discretion think fit.** 

The testatrix died a few days after the date of her will, leaving 
her sister the said Catherine Kearney; and her niece Hannah 
Maria Scott (in the will called Hannah Scott), her surviving. 
Hannah Maria Scott had, at the death of the testatrix, three chil- 
dren ; namely, the petitioner James Sheppard Scott, Joseph Scott 
and Elizabeth Maria Scott ; but she had four more diildren^ namely, 
Hannah Maria Kearney Scott, Sheppard Thomas Scott, Josephine 
Mary Scott, and Gilbert Thomas Scott, born after the death of 
tlie testatrix. Hannah Maria Scott died on tlie I6th of August 
1858, in the lifetime of the said Catherine Kearney, and the 
said Catherine Kearney died in November 1858. The interest 
o( the £500 was paid to Catherine Kearney in her lifetime, and 
the interest of the Waterford Bridge debentures was paid to 
Hannah Maria Scott in her lifetime, on the assumption that she 
was entitled to such int^ivst for her life, and that none of her 
children had any claim during her life ; but of course that cannot 
affect the question which arises on the construotiou of the will. 

Counsel on the part of the petitioner contended that the peti* 
tioner, and his brother' Joseph Scott and his sister Elizabeth 
Scott, who were the only children bom in the lifetime of the 
testatrix, became entitled, on her death, with their mother Hannah 
Maria Scott, to the Waterford Bridge debentures, either as joint 
tenants <Nr tenants in common; and Counsel for the petitioner 
also contend that the petitioner, and his said brother and sister, 
bom in the lifetime of the testatrix, became entitled to the £500 
on the death of Catherine Keamey, their said mother having 
died in the lifetime of Catherine Keamey t and they contend 
that the four children bom after th» death of the testatrix are 
entitled to 'no share either of the Waterford Bridge debentures or 
of the £500. 

I do not concur in the argument of the petitioner's Counsel 
that, aecording to the true construction of the will of Mary Kearney, 
the petitioner and his brother and sister, born in the testatrix' 
lifetime, are entitled to the £500, to the exclusion of the four 



I860. 
RoU$. 

SCOTT 

9. 
SCOTT. 



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CHANCERY REPORTS. 



1860. 
BoUs. 




Judgment, 



other children bom during the lifetime of Catherine Kearney^ 
the tenant for life. Mr. Jarman, in his Treatise on Wills^ 2nd ed., 
vol 2, p. 127, states : — *' Where a particular estate or interest is 
carved oat, with a gift of er to the children of the person taking 
that interest, or the children of any other person, such gift will 
embrace not only the objects living at the death of the testator, 
but all who may subsequently come into existence before the 
period of distribution. Thus, in the case of a devise or bequest 
to A for life, and, after his decease, to the children of B, the 
children, if any, of B, living at the death of the testator, together 
with those who happen to be born during the lifetime of A, the 
tenant for life, are entitled, but not those who may come into 
existence after the death of A." The cases referred to by Mr. 
Jarman are in accordance with his statement of the law. Now 
without reference to the question which arose in Audshy v. Hom^ 
Ward V. Crray^ and cases of that class, to which I shall just 
now refer, I do not understand why any of the seven children 
in this case, all of whom were bom during the lifetime of 
Catherine Kearney, the tehant for. life, are to be excluded, so far 
as relates to the £500. 

If Hannah Maria Scott had survived Catherine Keamey, it would 
have been necessary, witjh reference to this sum of £500, to have 
considered Audsley v. Hom^ Ward v. Gray^ and that class of cases, 
in order to determine whether Hannah Maria Scott would have 
been entitled to a life interest in the entire of the £500 ; but, as she 
died in the lifetime of Catherine Keamey, the decision of that ques- 
tion would have been unnecessary, so far as the bequest of the £500 
is concemed ; and I do not understand, having regard to the cases 
referred to by Mr. Jarman, in the passage I have read from his 
work, why you are to exclude any of the seven children, so far as 
relates to the bequest of the £500, they all having been bom in the 
lifetime of Catherine Keamey, and before the period of distribution* 
It will, however, I think, be necessary to decide the question which 
arose in Audsley v. i7on», and that Class of cases, as the construc- 
tion to be put on the will, as to the £500, may assist in the 
constmction of the o^her bequest. With respect to the Waterford 



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119 



Bridge debentures, the question which arises is, in some respects, 
different from that which arises as to the £500. Where there is an 
immediate gift to children (t. e., a gift to take effect in possession 
immediately on the testator's decease), it comprehends onlj the chil- 
dren living at the testator's decease : Jarman on Wills^ 2nd. ed., 
vol. 2, pp. 126, 127. If, therefore, as to the Waterford Bridge 
debentures (the gift of which was preceded by no life interest in 
Catherine Kearney), Hannah Maria Scott and her children were to 
take either as joint tenants or tenants in common, the four children 
bom afler the death of the said testatrix would be excluded ; and it 
is, therefore, necessary, as to those debentures, to consider the ques- 
tion which has been argued before me, as to the construction of the 
general bequest (which included those debentures), "for the use, 
benefit and behoof of my niece Hannah Scott, and her children^ 
without the control or intermeddling of her husband." 

It is impossible to reconcile all the cases, as to the effect of a 
bequest to a parent, and his or her children. One of the most 
recent cases on the subject is Audsley v. Horn (a). In that 
case, the words of the will were : — *' I leave Hansard-place to my 
daughter Mary Rossiter, during her life, and, at her death, to her 
daughter Amelia RoMsUer and Amelia Roseiter'f children ; but, if 
they, should die without issue, in that case, the property to be divi- 
ded between William Hansard, John Tuttle and John Larry and 
Maria Larry." Amelia had no children at the date of the will, or 
at*the date of testator's death, or at the date of the death of Mary 
Rossiter ; and it was contended that the bequest was either a qua$i 
estate tail in Amelia Rossiter, or that it was an estate to Amelia 
and her children as joint tenants ; and that, upon that assumption, 
as there was no child alive at the time when the gift took effect, 
Amelia took the whole absolutely. Sir J; Romilly, in giving judg- 
ment, stated, amongst other matters, as follows : — '* Upon a review 
of the whole of the cases upon the subject, I think that, setting 
aside some contradictory decisions, which it is not very easy to 
reconcile, the tendency in modern decisions has been, in cases like 
the present, to hold that, in personalty, the bequest gives an interest 

(a) 26 Bear. 185. 



1860. 
Rolls. 

SCOTT 

V. 
SCOTT. 

Judgment. 



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CHANCERY REPORTS. 



1860. 
RolU. 




JudgmeiiL 



for life to the mother, with an interest in remainder to the children. 
Thus, in Crawford v. Troiier, a bequest to one and her children 
was held to give an interest for life to the mother, with remainder to 
her children ; and, in Morse v. Morse^ a bequest of a sum of monej 
to the testator's daughter, and her children, was held to give an 
interest for li(b in the daughter, with remainder to all her children. 
I certainly cannot say that oases are not to be found in the books 
which it is not easy entirely to reconcile with this view of the 
subject; but I think that the'vidw I have stated is that wliich is 
most consistent with the line of modem cases^ and their tendency, 
and gederally most in accordance with the spirit and intention of 
the testator in those cases. I also find that I have, npon two former 
occasions, adopted the same view, viz., in DawMon v. Bourne^ and 
in Jeffery v. 2>e VitroT The decision in AucUey v. Horn was 
affirmed on appeal (b). 

In th^ case of Ward v. Gray (a), reported in the same volume of 
Bemoanj a question arose as to the effect of a bequest to a mother 
and her childrai. The bequest in the fourth codicil in that case 
was, to '^Mrs. Horatia Ward and her children;" and there was a 
[ bequest in the fifth codicil to " Mrs. Horatia Ward and her family." 
It is strange that, in that case, Audsley v. Horn was not referred 
to; nor does Sir J. Romilly appear to have recollected it. In 
giving judgment, p. 493, he said : — " There is still one remaining 
question ptit to me by this special case, namely, what is the nature 
of the interest taken by the plaintiff (I^Irs. Horatia Ward) and her 
children in this bequest ? I cannot find any distinct authority cm 
this subject; and, following the opinion of Lord Cottenham, in 
Croebeti V. Orookeity which this case closely resembles, I am of 
opinion, first, that the plaintiff and her children do not take as 
joint tenatits ; and next, adopting one of the alternatives suggested 
by the Lord Chancellor, I am of opinion that the plaintiff takes an 
estate for Hfe in the fund, with a power of appointment amongst her 
children, and, in default of appointment, and subject to her life 
estate, the children take the estate equally amongst them ; and I 
will answer the case accordingly." Now it does not appear to me 

(a) 29 L. J., N. S., Ch., ao. (&) 26 Bear. 485. 



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1860. 

BolU. 

8GOTT 

V. 
SCOTT. 



CHANCEBT B£PO|tTS. 121 

to be materm, in t\ie pfesept c§8«, to C9iifii4dr wl^ether %\^e view 
taken in At^dsff^^ v. Bam^ pv in Ifiw^ v. Grqy, is ^he cor^t yiew ; 
because, aecordipg to the op^liQn qf S|f J. 9on^^J, in t^e latter 
cf^ t))e power was tfl appoint ^n^^gst tbe cbildrei) ; and, as tbe 
wil) of Papnab ^aria Scott exploded many qf t)ie ftbildren, it woiild 4udgmnt, 
bave been an invalid appqintpient ; an^, tberefore, I apprehend^ 
aocordipg to either pf tbe decisjons of Sif J. ]|oi]c^i%, (he seven 
children in the present case wqpld take. 

Tl^e qbseryatioi^s of Sir J- Bon^iPy, in Ma^of^ ?. Clfifke (a), do 
not appe^ very re<M>ncileable with War^ y* Grxij^f as tl^^F^ were 
children liying at the dea(h pf tUf^ tiesf^r i^ W(i^4 ^' (?ray. I^ 
OroctsU y. CfWilutff (b) it was laid do^p by pprd Cp^tenbam, " that 
in siich cas0 (f.i^., a gift to A ^^A^ her childrei^) a very slight 
ind|catioQ of intention t|ia^ the children should i^t take jpiptly with 
the mother has been thongfat sufficient to ^^abl^ tbe Gp^rt t9 decriee 
a life jBstate to the mother, with rismainder to her children.^ Now, 
in the present case, so far as relate to tfte £60Q^ it is, I tbink» clear, 
for the reasons I have already stated, that fpl the cbildjren of 
Hannah Maria Scott, bom in the lifetime of Catherine Kearney 
(t. €., the sevei) childrep), were entitled to to tbe £500. If this be 
so, it has been decided in J^ff^ v. Dt Viire (c), that where there 
was a bequest to a married woman, ''for the benefit of hefself and 
such children as she then had, or might thereafter have, by her then 
hosband, free from the control of her husband,'^ the married woman 
took for life, with remainder to such children. Sir J. BomiUy, in 
giving judgment, said ** all the childi:!en were ii^tevded to take; and 
this 0an only be effect^ by giving a )ife i/itercat jto tb^ mothpr, and 
the fond afterwards to the children.^ The argument of the defend- 
^Bjt's Gppnsel, which was in effect adopted by Sir <^. BomiHy, ex- 
plains the grounds of the decision; and those grounds are just as 
applicable to the case of children bom after the death of a testator, 
but within the lifetime of a tenant for life of the fund. In the 
present case, if it b clear, which I apprehend it is, that, as to the 
bequest of the £50.0 after the death of Catherine Kearney, it included 



(a) 17 Bear. 126. (6) 2 Phil. 555. 

(c) 24 Beay, 296. 
VOL. 11. 16 



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1860. 

RoJh. 
* , * 

SCOTT 

r. 

SCOTT. 
Judgment. 



children born after the death of the testatrix, and during the lifetime 
of the said Catherine Kearney, it appears to me that the case I have 
last referred to would apply, and that Hannah Maria Scott would 
have been entitled to the interest of the £500 for her life, in the event, 
which did not take place, of her surviving the said Catherine, virith 
remainder, as to ihi^ corpus of the £500 (after the death of Catherine 
and Hannah), to Hannah's children. I may further observe that the 
bequest to Hannah Maria Scott, being without the control of her 
husband, is in itself, according to one case, an indication of inten- 
tion that she should take for life. The cases, however, on this 
point conftict: Jarman on WilU^ 2nd ed., vol. 2, p. 335. In 
either view of the case, therefore, whether on the authority of the 
cases referred to by Mr. Jarman^ in the passage I have read, or on 
the authority of the cases of Audsley v. Horn and Ward v. Ort^f^ 
ahd the case in 24 Beavan^ the seven children are entitled to the 
£500. K the seven children are entitled to the £500, there are many 
cases which establish that the same construction should be given to 
the general bequest, which included the Waterford Bridge deben- 
tures. It would, I think be difficult to hold that, as to the £500, 
Hannah Maria Scott was entitled for her life, if she survived 
Catherine Kearney, with remainder, as to the corpus of the fund, for 
her children, and that the same words should receive a different con- 
struction as to the general bequest. I am, therefore, of opinion that 
the seven children are entitled both to the £500 and to the deben- 
tures. 

I sent in an order, shortly after the Court rose, last Sittings, de- 
claring very precisely in the order the rights -of the parties ; but I 
have now stated the grounds of my decision, as it may be satis- 
factory to the parties. If there is any desire to' appeal, I shall have 
4he date of the order changed to this day. 



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1860. 
RolU. 



JOYCE V. BUTTON. , , „ 

June \, 2. 

Nov. 2. 

The facts of this case appear sufficiently from the judgment. The Bj a marriage 

setileinent, 
question was, whether a post-nuptial settlement, of the l8th of lands were 

January 1850, was voluntary or for valuable consideration? trustees, to the 

separate use of 

Mr. Sullivan and Mr. G. O. Malley, for the petitioners. ^J m-^^k, 

Mr. Sherlock and Mr. Laughnan, for the respondent. iSwbSSi^.' ^^ 

should soirive 
Pulverioft V. Pulvertofi (a) ; Heap v. Tongue (b); Blake v. ^^^' ^^ ^ 

French (c); Roe v. Mitton(d)\ SeoU v. Bell{e); Ball v. Bum- after the death 

of the sorviYor 

ford (f) ; Clerk v. Netileship (g) ; Currie v. Nind (A) ; Goodright of A and B, in 

tmst to conyey 

V. Moses (t) ; Parker v. Carter (A) ; BuUerfield v. Heath (I) ; to the child or 

Milliken v. irt<ie{(m); Zate^ v. Warren {n)\ Pitzmaurice v. Sad- marriage, as A 
... V. .^ , and B should, 

^r(o), were cited. 5^ deed or 

win, appoint, 
and, in de&tdt 
The Master of the Rolls. of appoint- 

The petition in this case prays that a conveyance, dated the 18th children 

of December 1850, made by the father and mother of the petitioners, -^ de^uiU of 

issue, to the 
suryiyor of A and B. There was issae ; and bj deed reciting that A, in order to 
farther the prospects in life of the children, had consented to assign her Ufe estate for 
the benefit of the children, and that B, for the like purpose, agreed to assign his re- 
yersion, in case he should snryiye his wife. A, for the considerations aforesaid, and 
lOs., conyeyed her life interest to trustees, in trust to reoeiye the rents during the life 
of A and B, and applj them for the benefit and maintenance, ftc, of the chudren, in 
such manner as the trustees might deem sufficient. And it was agreed that the 
trustees should haye full power and control oyer the proper^ during the life of A 
and B, iree from the control or intermeddling, debts, &c, which at anj time miffht 
haye afiected the estate of A and B ; and B coyenanted that, if he should sunriye his 
wife, he would, if called on by the trustees, assign his estate and interest to the 
trustees, on the said trusts. — Held^ that the children were not within the consideration, 
and could not enforce a specific performance of B's coyenant to assign his interest. 

(a) 18 Yes. 84. (&) 9 Hare, 104. 

(c) 5 Ir. Chan. Bep. 246. (<0 2 Wils. 356. 

(e)2Ley. 7a 09 I Pr. in Chan. 113. 

(g) 2 Ley. 148. (A) 1 M. A Cr. 17. 

CO 2 W. BL 1019. (A) 4 Hare, 409. 

(0 15 Bcay. 40a (m) 5 Ir. Eq. Bep. 396. 

(«) 6 Ir. Bq. Bep. 299. (o) 9 Ir. Eq. Bep. 395. 



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Horn. 




Judgment* 



and by William Joyce, to the respondent John Hntton, of certain 
premises in the city of Dublin, and also certain articles, dated the 
3rd of December 1850, and made by and between the petitioners' 
father and mother and the said John Hutton, may be set aside as 
fVaudulent and void as ttgainst th^ po^-ht!iptial settlement of the 
I6th of January 1850, under which the petitioners claim ; and that 
the fath^ of the pfetitiOiliers may specifically perform the cove^iaBt 
contaSilied lA tfcte said post-ttfptial Settlement ; or that said convey- 
ance, dfkt^d the 18di Vyf D^ember 1850, ftnd said articles of the 3rd 
of December 1850, may stand as a security for the repayment to 
the said John Button of so much money, if any, as shall be found 
to be fairly due to the said John Hutton, on the taking of the neces- 
sary accounts; itfnd, accordingly, that afh account may He taken of; 
the sums payable to tlie 'sffid ^ohn Hutton, and trf the rents tfnd 
pi'^fits which, Wfthout witfti! defkult^ he might haVe received out 
of \he said premised, in l!he city of Dublin, ftom the 18th c€ Decem- 
bet 1850, a'nd fbv a re-^Onveyance, on "payment of such sum, if 
any, as may be due. 

The petition is unnecessarily prolix, but the material facts may 
be shortly stated: — Previous to the month of April 1831, Eliza 
Mary Nicholson was possessed, for a long term of years, of certain 
premises in the city of t)ublin, and was seised of other property not 
the subject of this firuit;'atid, being so Seised and possessed, a settle- 
ment was executed, bearing date the 5th of April 1831, in contem- 
plation (k the then iittended marriage of the said Eliza Mary 
Nicholson with Thomks Joyce, whereby the said 'Eliza Mary 
Nicholson conveyed to the trustees of the settlement certain lands 
and premises therein mentiohecl, and, amongst others, the said 
premises in the city of Ijlublin, on trust that they should pay the 
head-rent, and, subject thereto, for the separate use of the said 
Eliza Mary, and, in case Thomas Joyce survived the said Eliza Mary, 
on trust to permit and suffer tHe said Xhomas Joyce to receive 
the rents for his life, and, from and after the death of the survivor 
of the said Eliza Mary and said Thomas Jdycis, on trust that the 
trustees shdUld'Conv^y the said lands and preHnises, and said houses 
in the city of Dublin, to the child or children of the marriage, in 



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CBAm)£ltT REPOHtS. 125 

mob shares and proportions as the said Elisa Marr^ Nioliolson and 
Tliottias Joyce should, by d^ed or will, appoint ; and, in default of 
appointment, for tbe •obUdren^ sbare and ^are al&e ; and, in de&nlt 
of isBoe, the said lands, premises and houses were to be oonreyed 
to t^ snrviTor of the said Mary Niohokon and Thomas Joyoe. judMem. 

The muriage took efibot, and tihiere irere nx children of the 
mtHrriage (the petitioners), tfaree of whom are of age and three of 
whom are minors. The petitioners allege that the petitioners' 
father having, about the year 1849, given himself up to habits of 
intoxication, and the petitioners being apprehensive that petitioners' 
father woold induce the petitioners' mother to join him in some 
securities, and thereby reduce her and the petitioners to indigence, 
a case was laid before eminent Counsel, on behalf of the peti- 
tioners, who gave "direi^tions that if a deed was executed by 
' the petitioners' father and mother, conveying to new trustees their 
several and respective estates for life, in said houses, lands and 
premises, the same would be preserved for the benefit of the 
petitioners. This allegation is denied by the answering affidavit. 
The case and opinion would have been important to show the 
hanafidei of the plroeeedings. It has not been produced by the 
petitioners. There are provisions in the deed of the 18th of 
January 1850, calculated to show that this instrument, as alleged 
by the respondent, was executed to cover the ptoperQr'from the 
creditors of ihe fathtar and mother of the petitioners ; and I pi^ 
Very little attention to the statements made as to the case and 
opinion. If that opinion was handed over to the respondent, with 
any other documents, iilteirrogatories might have been exhibited 
on the subj^t. On the evidence before the Court, I cannot assume 
that it was. If it 'be lost, the solicitor who prepared the same 
might (if its loss had been put ia issue and sworn to) hare proved 
its contents. The petition states that, in pursminee of sasd 
lirrAngement (t. «., the advice of Counsel), a settlement bearing 
date the 16ih of January 1850 was executed, by and between 
thre petitioners' father and mother, of the first part, John Orpen, 
*t^ho vrsts the surviving trustee in the settlement of 1831, of the 
second pan, and WiUfaim Joyce and J. G. Douglas, of the third 



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126 



CHANCERY REPORTS. 



1860. 

RolU. 
V. — , ' 

JOTCE 

V 

HUTTON. ' 

Judgment. 



part. That deed (which is not correctly stated in the petition), 
after reciting the title to the lands and premises, and the marriage 
settlement of 1831, and the names of the children of the marriage, 
recites as follows : — ** And where^ the said Eliza Mary Joyce, in 
order to farther the prospects in life of her before-named children, 
and also in consideration of the sum of 10s., has consented and agreed 
to assign and make over her life estate in the lands and premises 
in the before-recited indenture of settlement, to trustees, for 
the benefit of her children ; and the said Thomas Joyce, for the 
like purpose, and^ also in consideration of lOs., hath also agreed 
to assign his reversion in the lands, tenements and premises in the 
before-recited indenture of settlement, in case he should survive 
the said Eliza Mary Joyce, his wife, to trustees, for the like purpose, 
and has consented to be an executing party to these presents." 
And after such recitals, the indenture witnessed that Eliza Mary* 
Joyce, "for the consideration herein mentioned," and in consider- 
ation of 10s. paid to her by the trustees William Joyce and J. S. 
Douglas, conveyed her life interest in the said houses, lands and 
premises (with the consent of her husband Thomas Joyce) to the 
said trustees, on the trusts therein men^oned. The petition 
erroneously states that Thomas Joyce conveyed. Thb is not the 
case; he only covenanted to convey, as I shall just now state; 
and it is strange that there should have been a misrepresentation 
of the deed, in so important a particular, in the petition. The 
trusts are then declared, that the trustees *' shall have, receive 
and take the rents, issues and profits of the herein-mentioned 
premises, during the life of the said Eliza Mary Joyce and Thomas 
Joyce respectively, and apply the proceeds thereof, after payment 
of head-rent and renewal fines payable out of same, to the use 
and benefit and for the maintenance, clothing, education and 
preferment in life of the before-mentioned children, issue of the 
marriage, lawfully begotten on the body of the said Eliza Mary 
Joyce, and to be paid and payable at such time and times, and 
in such manner, shares and proportions as they the said William 
Joyce and James Gttrdiner Douglas (the trustees), their executors, &c^ 
may deem sufficient for the furtherance and benefit of the before- 



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CHANCERY REPORTS. 



127 



meDtioned children of said Eliza Maiy Jo)rce and Thomas Joyce 1860. 
respectively." And it was by said deed further agreed that the ^. -, '^' 
said trustees should have full power and control oyer the said ^^^^* 
houses, lands and premises during the lifetime of Eliza Mary button. 
Joyce and Thomas Joyce, " free from the control or intermeddling, Judgmenu 
debts or engagements, securities or incumbrances, which at any time 
may have affected the estate of Eliza Mary Joyce or Thomas 
Joyce, their executors," &c. This provision looks like a plan to 
defeat the creditors of Thomas Joyce and Eliza Mary Joyce. A 
leasing power is then given to the trustees, to demise, with or 
without fine, provided that, if fines were taken, they should be in- 
vested in the funds, and the dividends applied on the trusts of the 
settlement. 

Then follows a covenant by Thomas Joyce, for himself, his heirs, 
&C., with the trustees, that, if he should survive his wife, he would, 
if called on by the trustees^ assign his estate and interest in the said 
houses, lands and premises to the said trusts, on the trusts herein- 
before mentioned. Then follows a power to appoint new trustees, 
framed in such a manner as to enable the said Eliza Mary Joyce 
and her husband to remove the trustees without any cause, and 
appoint other trustees ; and indeed the frame of the deed is such 
that it was, probably, a mode adopted of protecting the property 
from the creditors of Thomas Joyce and his wife ; and I have little 
doubt that, if the case and opinion laid before Counsel had been 
proved, this would have appeared. The petition states that William 
Joyce, one of the trustees (who was the brother of Thomas Joyce), 
misapplied the rents, and that the other trustee, Douglas, entered 
into the receipt thereof, having served notices on the said William 
Joyce, the last of which bore date the 10th of August 1850; and 
afterwards the petitioners' father, having intermeddled in the receipt 
of the rents, Douglas gave up receiving the same. This is denied 
by John Button's answering affidavit, who- says that the agent of 
Thomas Joyce and hb wife continued to receive the rents after the 
execution of the deed of 1 850. The premises being under ejectment 
for non-payment of rent, and the habere executed, the respondent 
John Hutton advanced to the landlord £203. 8s. 8d., and paid to 



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128 



CHANCEBT REPORT& 



186a 

JOTCK 

V. 

HUTTQIL 

JudgwimL 



Tbomat Joyce idO ; mmI the respondent John HnUoa alleges thul 
ke bfts expended Urge sums in keeping 4owa he»d-ren^ i^nd \n 
repairs^ and thai he is out of pooket, after all sums received l^ hii^, 
£214. Hs. The sehedule to the anawering affidavit shows how this 
sum is made oat. The petition then alleges that the recqpto^idept 
John Hutton received a anm of £500 on a polioy of in^urance^ 
which he effected on the life of petitioners' mother, as coUateiral 
security with the deed hereinafter mentioned, of the 1 8th qf Dece^i- 
ber 1850, and that be undertook that the petitionera should haye the 
benefit of such inauranoe: that allegation, however, has not been 
proved, and is wholly denied by John Hutton. The petition states 
the indenture of the 1 8th of December 1850^ made between the 
petitioners' father and mother, of the first part, the said Joyce, of 
the second part, and the respondent John Huttou, of the third part ; 
whereby the said parties of the first and second p^rta, for th^ alleged 
consideration of £20, of which the petition stfttes pnly £16 was 
paid, conveyed the said Rouses in Dublin to the said John Hutton 
and his heirs, for the unexpired term fi>r which same were beld ; 
which deed was registered on the 12th of July 1851. The petition 
then states certain articles of agreement, made between petitignei^' 
father and the said John Hutton, and which bear date the 3rd of 
Dec^ber 1853, whereby it was agreed, to prevent further litigation, 
that the rents of the said houses should be divided between 
them, share and share alike, the said respondent John Qutton 
retaining a certain sum for head-rent^ repi^s and tfULQs, end 
collection of the rents i and it was ftirther agreed tbut, upon the 
said John Hutton receiving £150, he would iiii^er ^^ possesripn 
to the petitioners' father. The petition then alleges thet t)ie 
respondent received the £150, by perception of the rents^ he not 
having paid the petitioners* fibber the moiety of the rents, but only 
a small weekly sum. 

The petitioners' mother died on the let, of May 1852, An 
afldavit has been made, in reply, by the petitioner Sophia Joyce, 
and an affidavit by way of rejoinder by the re^^ondent Jp^n 
Hutton, and there are eonfliieting siatem^M^ ee to soi9e of th^ 
facts ; but I do not consider it necessary to BUd9 ihew, «6« (m tfae 



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CHANCBRY REPORTS. 



1«9 



iepil -gromnd I shall just mm stalt, I oMMider ttiat the petilioii ii 
jM)t tittltiaable. The petUionen 4wv6 no present rights under 
the marriage settlemeiit «f IJie 5lli of April 1631, as the trosts 
im 4heir fiwonr ware, uader said settkment, to ti&e effect only 
after the death of their father wmi mother; and their fatber is 
still living, and was entitled to a life estate wsder said settlement. 
With respect to the peet^nnplMl setdement, «f the 16th of January 
ld50, nnder which the petiti— eri can alone ^aim, the Hfe estate 
of the petitioners' motiier, •conreyed thereby, has determined by 
her dsath ; and the petitimwrs' father di^ not thereby convey hb 
life estatd, as erroneeosly stated m the petition, but he covenanted 
with the tnistees that, if he ahoold snrvive his wife, he would, 
if called ^n hy the trosteee, assign to them his estate and interest 
ia the hovses, oa the trusts of the eettiement. 

The light of the petitioaers to maintain this suit depends, there^ 
finwy on their right to enforee ^e speeiffc performance of that 
oovenant against the respondent John Hntton, and the right to 
enforce soeh pertfiiimaaaee must depend on two questions; first, 
whether the post-nwptiBl settlement d£ 1850 was a voluntary deed? 
ai!i if it was, tins suit cannot be sustained ; and secondly, whether, 
if the said settlement was, as between the father and mother of 
the petitioners and the trustees, a deed for valuable consideration, 
the petitiooers, who were not within the consideratien, and were 
no parties to the oontraet, can enforce the performance of the 
eovenant? A merely meritorions consideration, as a provision for 
a wife or children after marriage, will not be a sufficient induce- 
meai for a Court of Equity to lend its aid in enforcing a voluntary 
i^greament or covenant : Jtffr^ f. Jeffrys (o) ; Dillon v. Cop-' 

The qsestion, therefore, arises, whether the post-nuptial settle- 
ment of 1850, as ikr as the petitioners have a claim thereunder, 
was a deed in valuaUe consideration? A conveyance by hus- 
band and wife, of the estate of the wife, is, as between the 
husband and wife, a deed for valuable consideration, the property 




Judgment* 



(a) Or. & Phil. lie. 
VOL. 1 1 . 



(fr) 4tf.&C.647. 
17 



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130 



CHANCERY REPORTS. 



1660. 
Eolli. 

• /— -^ 

JOTCB 

HUTTOH. 

JudgwitiU. 



passiDg out of both husband and wife, and neither being able 
to convey without the concurrence of the other. Muikerry v. 
Chinnery (a), ScaU v. Bell {b\ Hewton v. Myers (c), and other 
cases, establish that. This case, however, differs in this respect; 
that here the wife was, under the settlement of April 1831, 
seised for her separate use for life, with remainder to her husband 
for life; and the wife, by the post-nuptial settlement of 1860, 
conveyed her life estate and her husband covenanted to convey his 
life estate to her trustees, if he survived his wife, and if called on by 
the trustees. Now, whether the wife conveying her separate 
estate, and the husband covenanting to convey his reversionary 
estate for life, constituted a valuable consideration between the 
husband and wife, there being no statement on the face of the 
deed that the conveyance by the wife was in consideration of the 
covenant by the husband, it is, in my opinion, unnecessary to 
decide, as the petitioners were not parties to the post-nuptial 
settlement, nor within the said consideration, assuming that there 
was a valuable consideration as l)etween the husband and the wife. 
I have already referred to the cases which establish that a 
mere meritorious consideration, such as a provision for children 
after marriage, will not authorise a Court of Equity to lend its 
aid to enforce a voluntary agreement or covenant. It is also 
established by authority tbat^ as a general rule, where two persons, 
for valuable consideration, as between themselves, covenant to do 
an act for the benefit of a third person, that third person cannot 
enforce the covenant against the two, although either of the two 
might, as against the other : ' CoUyear v. Mulgrave (d) ; Hill v. 
Gorman (e) ; Davei^ori v. Bishop (f). No doubt, as stated by 
Lord Cottenham in Hill v. Gomme^ <* in all marriage contracts 
(«. e., in contracts in consideration of marriage), the children of 
the marriage are not only objects of it, but qwui parties to it" 
But I apprehend that observation is not applicable to post- 

(a) L. & G., Ump. Sag., 222. (6) 2 Ley. 70. 

(c) 16 BeaT. 5W. (rf) 2 Keen, 81. 

(e) 1 BeaT. 540; S. C, 5 MyL 4 Cr. 25a 
09 IT. AC, CO., 451; b. C, I PhU. 698. 



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CHANCERY REPOETS- 



181 



nuptial deeds or.contraots. There is no marriage conilderation 
in SQch case; and I do not understand on what ground the peti- 
tioners, as children of the marriage, and who are not within the 
consideration (if any) of the post-nnptial settlement, and who are 
not parties to the contract, can enforce it. 

It if not necessary to offer an opinion on a point relied on by 
the respondent John Hntton, that the deed of January 1860 
was a deed executed by the father and mother to defeat their 
creditors, and was not bona fid^. The provisions of the deed 
affbrd some colour for the objection, as also the non-production 
of the case laid before Counsel, or his opinion. I think it was 
imprudent of the petitioners to reject the offer made by Mr. 
Sherloekf on the part of the respondent John Button, to take 
£100 if the costs were paid, and to re-convey to the petitioners. 
Mr. Sherlock stated* and I presume from the circumstances of 
the case, correctly, that the petitioners would be unable to pay 
the costs to be incurred upon a reference ; and he therefore relied 
on the legal objections I have adverted to, in the event of the offer 
not being accepted. I am of opinion, on the whole, that the 
petitioners have no right to maintain the suit against the respondent . 
John Button, unless they could enforce the covenant of their &ther, 
contained in the post-nuptial settlement; and I think that, asauming 
there was a valuable consideration between the husband and wife 
and the trustees in that settlement, which may admit of much 
doubt, that the petitioners were not within the conlideration, and 
were no parties to the contract, and cannot enforce it. The 
petition, therefore, will be dismissed. 







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13? CHANCERY REPORTS, 



X. K Omirt. 



Kantrelr tfiftattif ffatirt. 

In the Mstter of the EitAte of 

Sir JOHN NUGENT HUMBLE^ Owner and P$Hti0nir, 

Deraee of J. T. FITZGERALD. 

•Toil. 15. 

A enten into Th£ fltota of this caee^ whieh seemt la be a ease of first impressloiiy 

an agrreenienty 

to the follow- aj^ear follj fron the judgment. The ease came en for argument 

'^^That^hr' o^ oh^tion td the final edkedale. 
flhonld ezecate 
a mortgage, 

^^ ^£5 ^' •^- -^ "^^•^^ ** ^^ objection, cited Cn^ r. fW«(«) * 

^<^^ ^ Fr#moi«ftT.l>e(lMr0(6); Pwaeh^i^ om SeOlemetUs, p. 550; Wittiam 

B and c/ to t. X«ca#(e)( Leckmere v. Bawl of CarHih{d)i Gardiner t. 

secure to them ^ ^ ^ ^ ^ 

an amount aTaaPfMtffkf («)» 

awarded, yiz., 

£3120, with 

interest at £5 

per cent, on Mr. Thomm Hmrrky and Messrs. Owen F. SmM and /SbMlM^ 

sum of £2600, ^^^ ^^i°» tfenlri^ cited RaundeU T. Sremy (f) ; Creedr. Carey {g)% 

frSLX^ M^a<foiST.5iM«iW'W; Cavemry r. Cowenhy (i). 
of April 1842, 

the date of the award, A giying reasonable proof that he has power to grant snch 
mortgage, and that the property to be mortgaged is adequate seenrity lor 
it. — Meld, that snch an agreement (though not sufficient to ground a decree 
for immediate specific ptrfiaanaDoe) would antfiorise the Coml el Chaooeiy to 
order A to select a suffiaent portion of his estates, and make it a security in com- 
pliance with the agreement 

Held alao, that, afker the lapse of four years and A's doath, it ooald aot he 
spedfically enforced acainst the heirs and devisees of A, but would enable B and 
to institute an administration suit, and claim that a sufficient portion of A's real 
' estate be applied in payment of the debt 

Held also, that this being so, it was (after a sale in the Landed Estates Court) 
to be regurded as a specific charge, taking priority of general creditors, hutjmigne 
to other specific charged 

(a) 4 Ir. Ch. Bep. 316. (b) 1 P. Wms. 429. 

(c) 2 Cox, Ch., 160. (rf) 3 P. Wms. 211. 

(s) Coop., C. B., 801. 09 2 Vem. 481. 

(if) 7 Ir. Ch. Bep. 295. (A) 1 Moll. 585. 

(t) 2 P. Wms. 222. 



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CHANCBRY BBPOBT& ' 



123 



HABOBBAtB, J. 

The facto of this case are as follows : — The lands sold im Mb 
matter wave Ae profperfy of Thamas Josepk Fitzgerald, who is now 
daoeasadi and tlMy ilrere derWed by ]um» in part at least, frem Ua 
graoid&tber, ThoaBaa FitageraM. In and prior to the year 1841, 
diapntea were pending between him and two gentlemen of the name 
of QnuL and Heam, and their wiTes^ as to his liability te a consider- 
able aom of mooey, in eonseqoence of an alleged breach of trusty 
conunittad by his gtandibtber, Thomas Fitagerald ; and bj a ^leei 
of ^6 I6tb of NoTcmber 1941, all matters in dispate were referred 
to the arbitration of the late Jndge libore and Judge KeaHnge, then 
jpaetking at the Bar. I am not informed whether tiiese gentlemen 
made any final award, bnt it sufficiently appears that they had 
decidad that Mr. Fitogerald should pay t» Mr. Qain and bis wife, 
and Mr. Heam and his wife^ in eqnal moieties, £2600, late cuReney, 
with SIX years' intexcst> at £5 per cent., in all £3120 sterMng. 
Nediiaig fnrtber appears to hare been done vntil the 29th of May 
1860^ when a meeting was held between the parilea and tbeir soli* 
dter, the restilt of whiek was embodied in a written memorandnm 
of ^preement, signed by Mr* Fitigerald and Us solicitor, by Mr. 
Quin and the^aolickoar of Mr. Qain, and Mr. Heam i and the qnes^ 
tion which I have to detvrmine is^ whether this agreement is eapalito 
of being enfinnced speeifleaUy against the real estate of Thomaa 
Joseph Fitsgerald, er its p rodnee now in Court? It is admitted 
that the agreement can have no effect against mortgagees of any 
part of Mr. Fitagerald^ real estate, or against parties having specific 
charges thereon i and effect is somght to be given to it only as 
against the heir and deviaaea of Mr. Fitsgerald and his general 
efeditorBi The snbatanoe of the agreement may be stated thns« — 
*^ It was agreed that Mr. Fitsgerald should execute a mortgage, pay* 
dbfcle with interest ai £5 per eent., in fbur years, to Dr. Qafn «m1 
Mr. Heam^ to seenra to them the amount awarded, vi^, £9120, 
with interest at £5 per osnt. on the prmeipal sum of £2600, hkU 
ennrency, from the 27th day of April 184^ the date df such award, 
Mr. Fitagerald giving reasonaUe proof that he has power to grant 



1860. 
Xt. J5. C#itrt. 

In re 
BUMBUB. 

MigmmL 



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184 



CHANCERY EEPORTS. 



1860. 
X. E. Ctmrt. 



JudgmnL 



such mortgage, and that the property to be mortgaged ia adequate 
security for it " 

Numerous cases were cited, beginning with Freemouii w. 
Dedire{a\ principally upon covenants to settle or to charge join- 
tures, in some of which they have been held to be specific liens, and, 
in others, the contrary, according to circumstances. These cases 
generally have reference to after-acquired estates ; and where there 
is a covenant to settle such estates, of a particular value, the rule 
would appear to be that such a covenant does not specifically aifeot 
property purchased, unless there be evidence to show that the pur- 
chase was made with a view to its performance. I intimated, during 
the argument, that I was disposed to place a construction upon this 
agreement which would render that dass of cases only remotely, if 
at all, applicable. It appeared, and still appears to me, that the 
agreement must be read in one of two ways ; it is -either n mere 
general promise by a debtor to his creditor, that he will give seeurity 
for the debt to be paid at the end of four years, or it is a ipeoific 
agreement, for sufficient consideration, that he will mortgage a suffi- 
cient portion of his real property to secure the debt; and show a 
good title to it. The former would be vague, and, in thf eye of a 
Court of Equity, unmeaning and incapable of enforcement. The 
latter would, I think, be a contract sufficiently definite for the Court 
of Chancery to enforce, if the debtor should neglect to tender, 
within a reasonable time, a sufficient mortgage, with proper proof 
of title. 

After full consideration, I am disposed to think thut the latter is 
the fair construction of this agreement. Th6 term ''mortgage" 
implies ordinarily a security on real estate ; and a covenant to make 
a mortgage would not be satisfied by a mortgage of a ship or of 
personal estate, any more than trustees authorised to lend money on 
mortgage would be justified in lending it on a mortgage of goods. 
I think also that this agreement imj^rts a mortgage by Mr. Fits- 
gerald of a sufficient portion of his then existing real estate, as it is 
evident that the agreement was intended to be carried into execu- 
tion immediately ; that is, within a reasonable time, and not upon 

(a) 1 F< Wmf . 429. 



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CHA]NC£BY BEFOBTS. 



135 



any future contingeiK^y such ts his' porchasiiig other estates. This 
view distinguishes this ease from the authorities cited. Now, taking 
this as the meaning of the agreement, I do not see any ground for 
doubting that a contract between a debtor and his creditor, that the 
former will make a mortgage of all his real estate, or of a specific 
portion of his real estate, to secure payment of the debt with inter- 
est at a future day, is a contract which would be enforced by a 
Court of Equity. The case of CrofU t. Feuge (a) was relied on 
against this proposition ; but that case was decided upon the. ground 
that the creditor had already, by means of a judgment^ substantially 
got all that the Court could give him ; and also on the ground that 
there was no consideration for the agreement ; and the Court was 
influenced by the apparent hardship of subjecting the debtor to a 
suit to compel him to make a mortgage, contemporaneously with 
another proceeding, to sell the estate on foot of the collateral 
judgment. In the present case, however, there is a sufficient con- 
sideration in giving time for four years ; and, during the period of 
delay, in such a case as I have put, I do not see any obstacle in 
the way of enforcing specific performance. Is the case then altered, 
when the agreement is not to mortgage all the debtor's estate, or a 
defined portion of it, but to mortgage a sufficient portion, to be 
selected by the debtor, and proved to be sufficient? It is not difficult 
to suggest practical impediments which would occur in the course 
of a suit to obtain performance of such an agreement \ but I do 
not see any objection in principle to a decree requiring the debtor 
to select a sufficient portion, and, in default of his doing so, that the 
Master should make the selection. I am bound, however, to say 
that^ after the end of the four years, and the death of the debtor, 
I do not think that a suit could be sustained against his heir 
or devisee, to compel him to make the mortgage. Such a course 
would be open to the objection of its being a suit to obtain 
security,, with a view to the security being immediately enforced. 
The proper course, I think, would be to proceed by way of 
administration of the estate, and in the course of such a suit to 
claim that a sufficient portion of the produce of the real estate 

(a) 4 Ir. Chan. Bep. 816. 



1860. 
L» Em Court* 

' y ' 

In re 
HUMBLB. 

JndgmtmL 



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136 CHANC£BT BEPOBTS. 

1S60. sbonld b« applied to paj the d«bt. That k what th« oredium 
tre BOW seeking to do ; and, <m the whole, I am of opinion that, 
as against the devisees of Thomas J. Fitagerald, they are entitled 
to this relief; and, as the general creditors oan only attaoh the 
property whi^ beneficially comes to the heir or devisee, I think 
that they are equally bounds The Statnte of Limitations does 
not apply, as the consolidated sum to be aeeured by the mortgage 
wouid not be payable until May 1864, whioh was within six years 
of the filing of the p^ition in this Court. Indeed the petition 
was filed within two or three years after the date of the agree- 
0)00 1 of 1850, and before the lapse of the four years' delay. 

I have had some doubt whether Dr. Quin, by taking a bond and 
warrant of Thomas J. Fitzgerald, did not waive his right under 
tho agreement. It is not, however, unreasonable to assume that 
the bond and warrant were given by the debtor with a view to 
the judgBMBt being made a charge on his real estate ; and, as this 
has £uled, I think Dn Quin is entitled to fall back- on the agree- 
ment / 



In the Matter of the Estate of 
GEORGE POWELL HOUGHTON, Owner and PeHtioner. 



Nov. 15. 



A lease for 500 Ths petition in this case was presented by George Powell Hough* 

14th Decern- ton, owner and petitioner, for the sale of certain of his property 
her 1669, con- , . 1, . \ 

tained a core- m the oounty of Wexford, including (amongst others) the lands of 
nant by the «_. . 

lessee, his exe- Kihnanogue, held under an indenture of lease, dated the 14th of 

^j^t^„ im^ Deeember 1669» and made between Robert Leigh, of the one part, 

assigns, with 

the landlord, bis executors, administrators and assigns, not to sell before the first 

prefer be made to the landlord, his execntors, administoators and assigns, to the 

end that thej might have the fint rpfasal thereof, and pay as mnch as any other 

person should bona fid* offer.-^Heid, that is a ooyenant that runs with the land, but . 

that it is not a perpetual one ; and, therefore, an assignment of the tenant's interest 

haying been made 140 yearsago, it must be presaged that the landlord declined the 

ofier or waired his right, and the tenant must now hold discharged from the said 

ooTenant 



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CHANCERY REPORTS. 137 

and Patrick Lambert, of the other part, for the term of 500 years, I860. 

at the yearly rent of 408. The lease, in addition to the usual cove- nI — 1^ — ^' 

nants, contained one in the following words : — " And likewise the houohton. 

said Patrick Lambert, his executors, administrators and assigns, allZIL 

doth covenant, promise, grant to and with the said Robert Iieigh, 

his executors, administrators and assigns, that neither the said 

Patrick Lambert, nor his executors, administrators and assigns, 

shall or will assign over or sell their whole interest, or any 

part of their interest, in the before demised premises, to any 

person or persons whatsoever, before the first proffer thereof be 

made unto the said Robert Leigh, his executors, administrators 

or assigns (if they, or any of them, be at Rosegarland or near 

Eilmanohe at the time of such sale), to the end that they 

may have the first refusal thereof, and pay as much for the 

same as any other person or persons shall bona Jide offer for the 

same.'* 

The lessee's interest in the land comprised in the said lease sub- 
sequently became vested in the said George Powell Houghton, and 
the lessor's interest in Francis A. Leigh. It appeared, during the 
course of the case, that an assignment of the lessee's interest had 
been executed to a purchaser for value, about 140 years ago, and 
that rent had always since that time been received by the persons 
representing the lessors, from the persons deriving title under the 
said assignment. 

Mr. J, B, Walih (with him Mr. /?. Owen) moved, on behalf Argument. 
of the said F. A. Leigh, that the rental in the said matter might be 
amended, by placing the lands and hereditaments comprised in the 
said indenture of lease in a separate lot, and not jointly with any 
other lands, in order that the said F. A. Leigh might have the right 
of pre-emption reserved to him by the said indenture. The cove- 
nant in the lease is not repugnant : Weaiherall v. Geering (a). If 
the covenant runs with land, the heir taking the reversion may sue 
upon covenants, though not expressly entered into with the lessor 
ADd his heirs : Saeheverell v. Froggart {b) ; 2 Piatt on Leatei^ 

(a) 12 Yes. jon. 504. (6) 2 Sannd. 367. 

VOL. n. 18 



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138 



CHANCERY REPORTS. 



1860. 



In re 



p^ 362 ; Doe d. Ban^d ▼. Hayley (a) ; and assigiiee of reversion 
has the same right: 10 Car. 1» seas. 2, c. 4 (Ir,) ; 82 H. 8, e. 34 
HOTOHTON. (S^*) s 1 F^urL^ p. 509^ This coFenaiit runs with the knd t 2 PlaU 
"^^ en Leases^ p. 400 j iSh^f. K. oih^ P.» p. 485^ 

Mr../. iio$wr4^ for Geofge PoweU Hong^n, refisrred to SmyM» 
Landhrd and Tamnt, pp^ 2»4|; 286. The right of pre-emption in 
this case, from the Tory language o£ the eovenani^ is conined to the 
irst sale oalj ; aad it m«st nom he prfsomed that^ on the oecaaioa 
of tiM assigmeiit of the lessee's interest, so long ago^ the \umot 
lefnaed the land, and therdere the right does not now exist. He 
referred als» to SUcknr t. Dean (6) ; Keppel ▼. Bailey {e) ; Duke of 
Dmdfordy. Trmteoi of Brkisk MnMum{dy ; Sparrow v. Cooper (e> 

Mr. R^ ihcen^ in repl j. 

Sparrow y. Cooper is not now law: see Sugden on Vendore 
and PmrAaeers^ '^PF** P*^ 651 ; Wkaiman y. Oibeon (f) % Mann ▼. 
Si9pbene(<s^) ; Tulk r. Moxhay (k). 



Nov. 17., 
Judgment. 



HABOmXATB, J. 

This is an appKeatien on the part of Mr. Leigh, of Roeegarland, 
to haTet the rental amended hy placing in a separate lot that portios 
of the Eilmannodc property which ia held hy the owner nnder a 
lease of the 10th of December 1669} in order that, when the sale has 
taken place, Mr. Leigh may exercise an alleged right of pre-emption, 
and take the. lease at the same price as is offered for it at the sale. 
I am of opinioa that, if the rigfai of pre-emption oxistSi there Is 
necessaHly incident to it a right to haTe the lease sold by itself, and 
not in conjnaotion with othet ppoperty in which Mr. Leigh has no 
interest, and bo ccmresponding right of pre-emption. The question 
tnms on the eflfeot of a clause in the lease of 1669) which ia im the 
form of a co^eoant hy the lessee Pattick Laaihert, that neither he 



(a) 12 East, 464. 
(c)2M.&E.517. 
(e) H. 4 J. 404. 
(9) 15 Sim. 977. 



(b) 16 Bear. 161. 
(<0 2M.&K.652. 
09 9 Sim. 126. 
(A) 2 Ph. 775. 



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CHANCERY REPORTS. 1»9 

•or feds exeootors, ateinbtoaton or MV^St woold assigo OTer or ISSO. 

iett their wkole inlerast, or ai^ )pftFt of it, in liie 4emiMd premises, ^— \,. .,/ ' 

before the ii«t profit be made lo Beben Leigh, hu exoeotMs, houohtom. 



sAMniBtralors Or aesigM (if they oar lie be at Bod^arknd at the 
tiue), to the e^d that he or they m$j ha^e the tot Missal thereof, 
and pay as miieh for tiie eaaie m any other person should htmafide 
oftr. After the best <ioiisM0rsti#n that I ean fiTS the mtttter, I 
see ao reawn to doubt Ihat, regarded -as a legal eerveaflant, it vk one 
fvhkh iviU run mVtk the land, so the* the teaefit of it wifl belong for 
tlM time being to Ae owaer «£ the reversion, nad that the burden 
of it willlhll «9on the <>wn0r fbr the «ime beingof tba leave, t^ere 
I ind a coyenairt rebning to the thwig ^mised, which cannot possi- 
bly bs perftnMed^ except by the lessee or the assignee for the tij»e 
bfittg^f the leasey and to the benefioial proitof srhioh ao title ean 
be made, exeept by the <miisr of the vensrsiMiy it seems to tne thai 
to hold that saeh a ooyeuaal does not nm with the land has the 
effeet of destivying it altofether. But ivhatever donbt anayiealst 
On this teehaioal point, there eannot be moeh doobt that 4he eon- 
tratft is one whidh a Court of Squity would enforae against a 
pvrcd^ase with netiee ; and in such m ease as this •veiy purchaser is 
necessarily m pcapcbaser with aotiee. Iiet ws- sappose for a moment 
that a lease ooatains a clause thai the hiadlord anry at any time 
determine it, on payment of ft certain sum of moneys can there be 
any doubt that such a clause is vaKd, and capable of being enfoteed 
at Law if it be in the nature of a coofditiciti, and Eqaityif it bein 
tiie form of a covenant or contract P The preaeut eorenant is mora 
limited) for it restricts the landlord's power of daiermiaing the lease 
to certain events, over which the lessee has the principal oontroL 
If I am right in this view, the only question is as to the construction 
of the covenant. Is it a general and perpetual covenant that when- 
ever the owner of the lease wishes to part with it for money, he 
must give the landlord the pre-emption, although he himself was a 
purchaser for money ? or is it simply a contract by the lessee that» 
whenever he or his representatives or family shall sell the lease^ 
they shall give the first offer to the landlord ? I may observe tbat^ 
the latter is a much more probable species of contract than the 



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140 CHANCERY REPORTS. 

I860. former; in fact it ia a natural contract to enter into, whenever a 

.1.^.^,....^' Yendor (which in this case Mr. Leigh substantially was) sells to a 

HOUGHTON. P^i*^^ ^ ^ \l\vA of favoar. Sach a contract points to a personal 

wish on the part of the landlord or vendor to have the property 

Judgmm. ^ r v^ J 

back at its fair value, whenever the lessee or purchaser ceases, by 

himself or his family, to have the personal enjoyment of it. I should 
not have entertained any doubt at all that this was the view of the 
parties in this case, if it were not for the introduction of the word 
« assigns'' into the covenant; in all other respects I should have 
considered the language of the covenant as conclusive that the 
parties were merely contemplating the event of the property passing 
from Lambert and his representatives to a purchaser. There are 
no words indicating a plurality or succession of sales ; nothing 
pointing to a permanent right, toHes quoHeSj whenever the property 
should be sold. I do not think that this very extensive and incon- 
venient construction of the covenant should be adopted, merely from 
the use of the word ** assigns," particularly as a meaning can be 
given capable of satisfying that word, without giving so high a 
degree of importance to it. The word *' assigns " may very well 
^pply to the case of parties claiming as legatees or volunteers under 
the lessee, or persons claiming under a marriage settlement, or any 
form of assignment, except that of an assignment upon the sale for 
money. On the whole, I think that a purchaser <^ this lease fw 
money, the landlord having had the offer of standing in his place, and 
having declined it, holds the lease free from this onerous condition. 
Applying these principles to the present case, I find that the lease 
was sold by Lambert's son (I believe) in 1720, to a purchaser for 
money value, under whom Mr. Houghton derives. I must, of 
course, now assume either that the landlord then declined the offer, 
or waived his right, as there has been a possession for 140 years^ 
without any attempt to enforce a title on the part of the landlord. 



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CHANCERY REPORTS. 141 



1860. 
L, E, Court. 



In the Matter of the Estate of 

WILLIAM HUMPHREY RATHBORNE, ROBERT 

ST. GEORGE RATHBORNE, GEORGE LOWTHER 

RATHBORNE, RICHARD COFFEY and PENELOPE 

. COFFEY, hia wife, Otonen and PeHHonen. 



Nov. 27. 



William Ratbbornb, late of Scribblestown, in the conntj of A lapsed share 

of a reddae of 
Dublin, father of the several owners and petitioners (except Richard real and per- 
sonal estate, 
Coffey, the husband of his daughter the said Penelope Coffej), derised, sub- 
made his will, dated the 19th day of December 1855, and which, {>ayment of 
afier the confirmation of certain settlements and appointments, andtestament- 
and the execution of certain powers, contained the following re- S^notTSSte* 
siduary gift ; — " And as to all the rest, residue and remainder of *f t^**^^^?^ 

my property, real and personal, of every nature, kind or description, in exoneration 

of the rest 

whereof I may die seised or possessed, my will is that the same of the resi- 
duary estate, 

be sold by my executors hereinafter named; and the produce bat rateably 

the«of (sul^ect to the payment of my debt., «.d fimend and ^'^ JL. 
testamentary expenses) I give, devise and bequeath the same to StaUmenL 
my sons Robert St George Rathbome, St. George Bathbome, 
Gorges Lowther Rathbome, and my daughter Penelope Coffey, 
share and share alike, as I consider my eldest son William is 
sufficiently provided for*'' 

The aaid testator died in the month of September 1857, without 
revoking or altering his said will, and left all the said residuary 
devisees him surviving, with the exception of the said St George 
Rathbome, who died in the lifetime of his father, the said testator. 

Some time after the death of the said testator, the petition was 
presented for a sale of the property comprised in the said will, 
and the name of the said William Humphrey Rathbome was used 
as one of the owners, but without his consent ; but he was aware 
of the proceedings, and offered no opposition thereto. The property 
of the testator consisted of estates of different tenures ; some in 



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1660. 



142 CHANC£BY REPORTS. 

fee-siinple, some held under leases for lives renewable for tYtr, 



In re 



and some under chattel leases. The said William Humphrey 
BATHBOBNE Rathbomo, one of the owners, was the eldest son and heir-at-law 
siaiamLi ^^ ^^ ^^^^ testator, and, on his father's death, became entitled 
to the share of the saSd St. George Rathbome, so far as it 
consisted of realty. The question arose on the «llooatioii of the 
surplus funds, after the payment of all the izicumbranoes ; the 
residuary dcFisees contending that the lapsed share of St. G^rge 
Rathbome was liable to the payment of debts and incumbrances, 
in exoneration of the shares of the other residuary devisees. 



Mr. J. E. Waltk (Mr. Rickatd^ with him), Ibr the residuary 
devisees. 
ArgHmau, In the applkation of aissets in the payment of debts and lega- 
cies, estates whioh descend ie the heir, whether aoquired btifbre 
, or after the making of the will, are liable to the payment of debts 

and legacies, in exoneration of real and personal property, devised 
or bequeathed charged with debts. See 2 Jarman on WUb^ 
p. 327, and the cases therein reflurfed to. 

Mr. Robert Oimm, for the heir-at-law. • 

TIm cases cited cm ikie other side do not apply; for the rule 
laid down in those oases is based on the principle that the in- 
tention of the testator should not be diBapp<teted: Ckafim v. 
Chapiin (a) ; GoUon v. Handeo^k (6). The testator's intentkm 
will not be frustrated if the lapsed sharo beai« debts equally 
with the rest of the pesidue. This n not a oaae of one estate 
devised, and anotther descended ; it is, in faet, a devise of one 
estate for payment of debts, and another, viz., the residue, to 
fbnr persons, and out of which residue there is a laps^. The 
rule as to real estate descended does not apply to ^ case of a 
lapsed devise : BmneU v. Bachelor (c). It is decided that a 
lapsed share of real estate, devised subject to payment of debts, 
is applicable for payment of debts; in the same order as the 

(a) aP. Wms. 368, note. (b) 2 Atk. 424.. 

(c) 1 V«. jim. 67. 



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CHANCERY REPORTS. 143 

devised estetM : Wood v. Ordieh (a) ; see also FiiUr v. FUher {h) ; 186a 
Pother V. If ordkon^ (c) ; WilUam v. C7iU«y (d). L.E.(^ 

In rt 
BATBBORNS 

HASaBBATX, J, 

Dm. 1$. 

William Bathbome, the testator in this matter, by his wiU, Judgment. 
made in 1855, directed that all his property, real and personal, 
whereof he ought die seised or possessed, shoald be sold by his 
executors ; and the prodace thereof (subject to the payment of 
his debts, and funeral and testamentary expenses) he devised and 
bequeathed to his sons Robert Rathbome, St. George RathboriM^ 
Gorges Lowther Rathbome^ and his daughter Penelope, share 
and share alikos stating that he considered his eldest son William 
suflSdently provided for. One of the four legatees died in the 
testator's lifetime, so that his one-fourth, as to the real estate^ 
descended in Equity to his heir, William RaUibocne, and as 
to the personal estate, devolved upon his nexi*<tf-kin. The 
question which is now raised is, whether this fourth ia liaUe 
to the ^debts of the testator, in exoneration of the other shares 
of the residuary estate, or merely rateably with than i I entertain , 
no doubt, either upou prinoiple or upon authority^ that tiie proper 
mode of administration is t» pay the dehto out of the genenl 
residuary fund, and that the balance ia to be divided into four 
shares, and that one of theae' fourths, thus ascertained) is to go, 
as I have stated^ to the heir and next-of-kin. By this distribu- 
tion, each of the three surviving vesiduary legatees obtains pseqisdy 
what the testator gave to hiuk, and he is not placed in any worse 
Off. in any better position than he would have been in if there 
had been no lapse. The rule of Equity appears to be that,, where 
there is a devise or bequest of any t>srticular real or personal 
property, the property which is not disposed of and descends to 
the heir must indeainify the deyised property from debts; for 
the flunple reason that, if any of ihe debts is cast upon the devised 
esMe, there is a frustratioa to that extent of the testator's dis- 

(a) 3 Sim. & Giff. 126; 8. C, 1 Jur. (£ng.)» N. 8., 584. 
(4) 2 Keen, 610. (c) 1 T. & C, C. C, 805. 

(^ 3 Yak M5. 



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144 CHANCERY BEPOBTS. 

1860. position. The testator, in making a devise, is considered to have 

>_-^- ^ ' intended such a marshalling of his various assets as will hest 

RATHBOBNE o^^ctuate his expressed intention of devising the estate to his 

devisee, which means devising the whole estate free from liahilities. 

But» from the nature of the case, this doctrine can have no 
application to devisees of a fund, which fund is defined as being 
the general residue of his estate, subject to the payment of his 
debts, and funeral and testamentary expenses. The Court cannot 
collect any' intention that any particular estate or any particular 
amount should go to the devisees ; and, therefore, any marshalling of 
assets cannot be said in any way to contribute to carry into effect 
any supposed intention of the testator. I apprehend, therefore, 
that there is no principle of Equity which would warrant the view 
of the devisees, or place them in a better position than they would 
have been in if no lapse had taken place; and I mention this 
because it was suggested by Mr. WaUh that the rule of marshal- 
ling against the heir, in favour of the devisee, was a merely arbitrary 
rule, and was to be carried into effect in all cases, independently 
of any other reason for doing so, except that it is the rule. The 
case of Williams v. ChiUy decided that an heir taking by lapse 
was in no better position than the heir taking after-acquired estate, 
or taking what was never intended to be devised ; and this seems 
to me to be a natural consequence of the rule. The Court, in 
fact, will lay hold of all property which is not disposed of in 
fact (whether it is intended to be or not), so as, if possible, to 
give the devisee what the testator meant for him, viz., the estate 
in its integrity. I cannot, however, reconcile this case with Wood 
V. Ordisk (a). In that case there were after-acquired estates 
imd a lapsed devise, both of which the heir took. The former 
were not sufficient to pay the debts; and then the question arose 
whether the latter should bear the debts in exoneration of the 
estates which were effectually devised, and the Court decided 
in the negative. The case was peculiar, inasmuch as the lapse 
was of an undivided share of a remainder expectant on a life estate 
created by the will; and the Court considered that, as the life 

(a)3&&0.125. 



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CHANCEBT BEPOBTS. 145 

estate was protected, the remainder in the whole ought to to 1860. 

T JS Cotiri 

be considered as standing in the same eqoitj, notwithstanding « — 1^ '* 

/fi re 
that the devise of two shares took effect and the third failed. I kathbobnb 

do not think, for the reasons I have mentioned, that either of ,"; — 

JudgmeKi. 

these cases governs the present. This case more resembles Fisher 
y. Fisher (a). They are,' in fact, identical, except that the general 
residoarj estate was made a primary fund to pay the debt, so 
as to exonerate the personalty. But thai circumstance was im- 
material, as the question was not between the realty and the 
personalty, but between different shares of the really, as to one 
of which there has been a lapse ; and the Court held that all the 
shares were in the same position, as the testator merely intended 
each share to be a share <^ the surplus after paying debts. In 
this case, therefore, the debts must be distributed* rateably over the 
real and chattel property, and one-fourth of the residue of the 
real must go to the heir, and one-fourth of the residue of the 
chattels to the next-of-kin. 

(a) 2 Keen, 610. , 



In the Matter of the Estate of 
ROBERT WILLIAM JACKSON, Owner and PeHHoner. ^^g^ 

Jaii 15. 

Mb. J. H. RicHABDS moved, on behalf of Sir Capel Molyneux, that in the conrer- 

sionofaleaM 
there should be inserted in the conversion order of a lease for lives for lives ranew- 

renewable for ever, ordered to be sold in this matter, and the lessor's the Landed 

interest in which was vested in the said Sir C. Molyneux, and the ^yi make no 

lessee's interest in the said R. W. Jackson, a covenant giving to the ^J^JJ^^^ ^J 

landlord the right of pre-emption, or, in case of the omission of the ^"^^^J^^ 

said covenant, that compensation should be given to the said Sir C. ****2SMrt^ *^* 

Molyneux, by way of increased rent . hi&. ^^® .^^" 

^ ' ^ ^ lordthenghtof 

The lease in question was dated the 6th of February 1764, and preemption. 
VOL. 11. 19 



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146 



CHANCEEY REPORTS. 



1661. 
X. E. CowrL 

In re 
JACKSON. 

Statement, 



Argument. 



was made between Robert Sibthorpe, of the one part, and John 
Watson, of the other part, for three lives, with a covenant for 
perpetual renewal thereof, and comprised part of the lands of 
Teemore, in the county of Armagh, at the yearly rent of £41. 98., 
with a renewa^ fine of £6. 6s. on the fall of each life. The said 
lease contained a covenant on the part of the said John Watson, 
in the following words : — *' And the said John Watson, for himself, 
his heirs and assigns, doth further covenant, promise and grant, 
to and with the said Robert Sibthorpe, his heirs and assigns, by 
these presents, that the said John Watson, his heirs and assigns, 
shall not sdl or depart with his or their estate therein unto any 
person or persons whatsoever, without the consent of the said 
Robert Sibthorpe, his heirs or assigns, until he or they have 
had a first refusal thereof." 

By deed poll, dated the 8th of June 1789, the said John Watson, 
in consideration of £400, granted to Robert W. Jackson, the father 
of the owner and petitioner, his heirs and assigns, the said part 
of the lands of Teemore so demised by the lease of 1764. 

The last renewal was dated the I7th of March 1820, and was 
made by Thomas Molyneux, grandfather of the said Sir C. Moly- 
neux, to the said R. W. Jackson. This renewal was not produced 
in Court; and it did not, therefore, appear whether the above- 
mentioned covenant was expressly inserted therein, or whether the 
renewal was made subject to the subsisting covenants in the original 
indenture of lease. Mr. Richards did not press for the insertion 
of the covenant, but only for an increase of rent, and referred to the 
5th section of the Renewable Leasehold Conversion Act. Counsel 
also relied on a case laid before Messrs. Brassington & Gale, sur- 
veyors, and their opinion upon it, in which they stated that, from 
the peculiar situation of the land (being in the middle of other 
property of Sir. C. Molyneux), the omission of the covenant was 
a loss to the landlord equivalent to two years' purchase, 

Mr. Frazer^ for the owner. 

The principle of this opinion is quite erroneous. The lands have 
been assigned several thnes; and, it must now be presumed, with 
the consent of the lessor. 



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CHANCERY REPORTS. 



147 



LOKOFIBLD, J. 

I think that the 5th seotion of the Renewable Leasehold Conver- 
sion Act was framed to meet cases like the present, and that, there- 
fore, the lessor is entitled to compensation for the non-insertion of 
the covenant in the conversion order, so far as he can show that 
its omission canses any injury to the reversion. But what is the 
amount of injury that its omission causes ? I have every respect 
for the opinion of such eminent gentlemen as Messrs. Brassington 
and Gale ; but I think that, in this case, they have framed their 
opinion on an entirely erroneous basis. The value of this covenant 
must be calculated on the ordinary arithmetical principles which 
regulate the value of future contingent interests. I think two years' 
purchase is an absurd estimate. I must be guided, in my calcu- 
lation, by two principles ; firstly, the probability of the occurrence ; 
and, I think, it would be found that, in fifty cases, the landlord 
might, perhaps in one, have availed himself of a covenant like the 
present ; secondly, by what is called, in analogy to the language of 
insurance, the discounting principle, and which, in this case, is the 
length of time which would probably elapse without the landlord 
taking the benefit of the covenant ; as, for example, this covenant 
has been in .existence for ninety-six years, without the landlord 
having taken advantage of it. I think, therefore, that no sub- 
stantial loss will be sustained by the owner of the reversion by 
the non-insertion of this covenant. Probably, by reference to a 
table of logarithms, the loss might be estimated at a farthing 
a-year.* 

* By coiuent of the parties the rent was increased by one pexmy a-year. 



1861. 
Z. E. Court 

In re 
JACKSON. 

Judgment. 



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148 



CHANCERY REPORTS. 



1860. 
Ch, Appeal, 



Nov, 8, 9. 

Wh«re a pur- 
chaser is ia 
possessioii of 
lands, under 
an ezecated 
convejance, 
and part of the 
purchase- 
money has 
been secured 
bj a bond, the 
purchaser maj 
come into 
Equity to hare 
it employed in 
discharge of an 
arrear of head- 
rent due at 
the date of the 
conreyance, 
and is not con- 
fined to his 
remedy at 
Law» on the 
covenants in 
his conrey- 
ance. 

Statement, 



Court ot Appeal in tfjbanters. 

WOODS V. MARTIN and others. 

This was an appeal from a decretal order of the Master of the 
Rolls, dated the 11th of June I860. The facts of the case were as 
follows: — By indenture, dated 18th of November 1858, made 
between Patrick Martin, of the one part, and William Woods, of 
the other part, reciting a lease of 1836, firom Greorge Mathews to 
John Martin, of a farm of land, in the county of Down, for two 
lives, still in being, subject to the yearly rent' of £29. 14s. 3^., 
and that Martin's interest had become vested in the said Patrick 
Martin, who had agreed to convey the same to said William Woods, 
clear from all incumbrances, for the sum of £350, it was witnessed 
that, in consideration of that sum, therein recited to have been paid 
by the said William Woods to the said Patrick Martin, the lands 
were thereby conveyed, subject to the rents and covenants in the 
lease, to the said William Woods ; and said indenture contained 
Covenants for title, quiet possession, freedom from incumbrances fu[id 
further assurance. 

Contemporaneously with the execution of said indenture, Wil- 
liam Woo4s paid to Patricia Martin the sum of £100 in cash, 
being part of the consideration of £350, mentioned in said inden- 
ture ; and William Woods, with Thomas Woods and Isaac Lindsay - 
as his sureties, at the same time executed to the said Patrick Martin 
their i)ond and warrant of attorney, bearing equal date with said 
indenture, in the sum of £500, conditioned for the payment of £250 
with interest, the balance of said purchase-money. The petitioner 
stated that an unwritten agreement had been made at the time 
of the execution of said bond, that William Woods was to be 



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CHANCERY BEPOBTS. 



149 



allowed full credit, out of the amount therebj secured, for auj in- 
cumbrances which should appear against .said lands, and especially 
for an arrear of rent which the said Patrick Martin admitted to be 
due thereon, and which he then represented to the said William 
Woods only amounted to a sum of about £40. Immediately after 
the execution of said indenture and bond, the said William Woods 
entered into possession of said form ; but upon a verbal stipulation 
with the said Patrick Martin, that his doing so was not to be consi- 
dered as waiving his right to have such incumbrances paid off, and 
discharged out of such purchase-money. WUUam Woods, upoir 
making inquiry from the reversioner of said lands, as to the amount 
of rent due thereout, was informed that it amounted to £90. 9s. 8^. ; 
but that, if same were at once paid, a composition of £67 would be 
accepted ; but on Woods applying to Patrick Martin, he refused to 
pay, or to allow William Woods, any larger sum than £40, which 
the reversioner refused to accept, and brought an ejectment for non- 
payment of the rent up to the 1st of November 1856, against both 
the said William Woods and Patrick Martin, who were duly served 
therewith ; upon which he, on the 26th of March 18599 obtained a 
decree for said sum of £90. 9s. 8^, with costs, which decree was 
executed on the 2drd of April 1859. Patrick Martin not only still 
refused to allow the said William Woods to pay off said rent, but 
threatened to issue execution upon foot of a judgment, which he 
had entered upon said bond, against both the said William Woods 
and his sureties, unless the entire amount thereof was paid to him 
on or before the 18th of May 1859, when the stay of execution 
therein would expire. 

On the 19th of May 1859, William Woods filed his original 
cause petition in this matter, against Patrick Martin, steting the 
foregoing facts, and praying for an injunction to restrain the said 
Patrick Martin from issuing execution upon said bond and warrant, 
undertaking, if so directed, to bring in and lodge to the credit of this 
matter the entire amount secured by said bond ; and asking a decla- 
ration that he was entitled to have the amount of said rent and costs, 
and all other incumbrances affecting said lands, at the the date of 



1860. 
Ch, Appeal. 




Statement, 



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CHANCERY REPORTS. 



18fi0. 
Ch, Appeal 




Statement. 



said indenture of 18th November 1856, paid off and discharged out 
of the amount secured by* said bond. Upon the 27th of May 1859> 
an injunction, until further order, was granted, pursuant to the 
prayer of said petition. In pursuance of the terms of said injunction 
order, the said William Woods invested a sum of £250 in Grovern- 
ment stock, and transferred the same to the credit of this cause. 
Patrick Martin filed his answering affidavit, alleging that the said 
William Woods agreed to become the purchaser of said farm, at the 
sum of £350, and also to clear, at the landlord's office, whatever 
arrears of head-rent might be then due ; and denying that it was 
ever agreed that credit should be allowed out of the amount of the 
bond given for the balance of the purchase-money, for any incum- 
brance which should appear against said lands, or any arrear of rent. 
This affidavit further stated, that judgment had been entered on 
said bond, and registered as a statutable mortgage against the lands 
of the conusors ; but that the said Patrick Martin had, by inden- 
ture of 20th April 1859, assigned said statutable mortgage, and all 
interest therein, to the said John Martin, in satisfaction of a debt of 
£200, and the arrears of interest thereon. In consequence of the 
allegations contained in said answering affidavit, the petition was, 
on the 2nd of August 1859, amended^ by making said John Martin 
and others respondents. 

On the hearing before the Master of the Rolls, on the 11th of 
January I860, Patrick Martin's Counsel having insisted that the 
covenants of the deed of 18th of November 1858 had not been 
broken, and that the petitioners' remedy, if any, was at Law, his 
Honor directed the further hearing to stand over, to enable the 
petitioners to bring an action against the said Patrick Martin on the 
said deed ; and an action of covenant having been brought accord- 
ingly, Patrick Martin allowed judgment to go by default; but 
upon the assessment of damages, the said Patrick Martin and John 
Martin were examined to prove that there was only £40 of rent 
due to Mr. Mathews ; and the Sub-sheriff having let this evidence 
go to the jury, they found a verdict of £40 for petitioner. 

The said cause petition having come on for further hearing on 



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said judgment at law, and tbe Sheriff's report of inquiry, on the 
11th day of June I860, the Master of the Rolls made a decretal 
order, declaring the said William Woods entitled to have the sum of 
£92. 15s. 8d., being the amount of rent and costs ascertained by the 
said civil-bill decree to be due, by the said Patrick Martin, to the 
head-landlord, out of the lands, up to the 1st of November 1858, 
paid off and discharged out of the amount secured by the said bond 
for £250; and further declaring the assignment of the judgment 
entered on the bond, and of the statutable mortgage entered thereon, 
fraudulent and void as against the petitioner and his sureties ; and 
ordering that the injunction, which issued pursuant to the order of 
tbe 27th of May 1859> should be made perpetual, and that the said 
John and Patrick Martin should re-convey the lands against which 
they had so registered said judgment as a statutable mortgage, to 
the said William Woods and his said sureties, according to their 
respective estates and interests therein ; and declaring the said Wil- 
liam Woods entitled to his costs of the suit, and procuring such 
satisfactions and re-conveyances against the said Patrick Martin and 
John Martin, when taxed, together with the som of £21. 9s. 9d., 
the taxed costs of the action at Law ; and further declaring that the 
respondents Thomas Woods and Isaac Lindsay were entitled to be 
paid their costs by the said William Woods, and that he should 
have them over, with his own costs, against the other respondent ; 
and directing that, after pajrment of those sums out of the stock 
standing to the credit of this matter, the balance, if any, should be 
transferred to the said Patrick Martin. 

The respondents Patrick and John Martin having appealed 
against the entire of this decree — 



1860. 
Ch,',AppeaL 

WOODS 

MABTIN. 

StatemenL 



Messrs. Brewster^ Lawty and Faloon, on behalf of William 
Woods and his sureties, in support of it, cited Dart, on Vendors, 
p. 538, and TourtnUe v. Naish (a), to show that when the convey- 
ance is executed, and the purchase-money is secured, the purchaser 
may come into Equity to have it employed in discharge of newly 
discovered incumbrances. 

(a) 3 P. Wms. 306. 



Argument, 



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CHANCERY REPORTS. 



V. 
MABTIN. 

Argument, 



I860. The AUomey-General, with whom were Messrs. Warren and 

Ch. Appeal j^ Fitzgibhon, for the Martins, reUed on Sug. on Ven., p. 684, 
WOODS ^Yi\i ed^ in which this proposition is laid down — " It seems that if 
the conveyance be actaallj executed, the purchaser can obtain no 
relief, although the money be only secured." It is true that, in 
TowrvilU V. Naish^ Lord Hardwicke says, '* Though the purchaser 
has no remedy at Law against the pajrment of the residue for which 
he gave his bond, yet now he has notice of an incumbrance, under 
which circumstances the Court would stop payment of the money 
and on the bond.^ . But that is an extrajudicial opinion of Lord 
Hardwicke, and not the point decided in that case, which was 
merely that notice before actual payment of the purchase-money is 
equivalent to notice before the contract; for which Sir E. Sugden 
does cite it as an authority, at page 1036 of his Vend, and Pmr.y 
11th edition. 



The Lo&D Chan CEixoB. 
Judgment. Whether it be a mere dictum or decision of Lord Hardwicke in 

Tourville v. Naishj we think it both good law and good sense ; and, 
as it is directly in point in the present casCi we will act vpon it and 
affirm the decree. 



Order, 



Mr. Warren then submitted that the costs of the, appeal ought 
not to be given against the appellant, as the decretal order had not 
given credit to the appellant for the interest which accrued on the 
bond between its' date and the issuing of the injunction, and because 
the appellant ought not to have been ordered to pay the costs of 
re-assigning the statutable mortgage, and satisfying the judgment 
entered upon the bond. 

The petitioner's Counsel admitting the amount of interest due, 
the following order was made: — 

Affirm the order bearing date the 11th of June I860, except 
in so far as same declares the said William Woods entitled 
to his costs of procuring satisfaction of the aaid judgment 



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CHANCERY REPORTS. 153 

and re-convejance of the statutable mortgage in said order I860, 
mentioned, against the said P. Martin and John Martin ; ' pp^o*, 
and let the costs thereof be borne and paid by the said 
William Woods ; that the said Patrick Martin is entitled to 
credit for a sum of £6. 5s., being a half year's interest upon Order, 
the bond for £350, &c. ; and declare the said William 
Woods bound to give credit for such sum out of the amount 
decreed to him. No costs of appeal. 

Chancery Appeal Hearing Book, 1,/. 385. 




TOL. 11. 20 



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1660. 
RolU. 



Mmf 1. 
Nov. 20. 



KINSELLA V. CAFFREY. 



(In the RoU$.) 



Where there TiMOTHT EnrsELLA, bj bis will, bearing date tbe 24tb of Septem- 

is an indefinite 

bequest to the ber 1839, bequeathed to each pf his grand-nephews, Laurence 

hediewithoat Caffrej and Thomas Caffrey, respectivelj, one annuity of £50, 
i^T'c^dr^r ^^^S^ ^^ ^^ diyidends of his Goyemment stock, payable during 
rottdoiwttfiJke *^®*'^*v«fl half-yearly, at the times of the payment of the dividends 
by impUcation. ^^f ^^ gj^^k^ ^j^i^ ^ ^ji^use against alienation ; and he directed that, 

Where there 
is a bequest to on the death of either of them, leaving issue lawfully begotten, his 

life, and, if he annuity should go to such issue equally ; the share of such child or 
haying or leav- <^^il<^®n as should happen to die before the age of twenty-one years, 
owiSeSd- ^^ ^y ^^ ^*y® ^^ marriage, to go to and be equally divided amongst 
SSed^b^*'^'*' *^® survivor or survivors of such issue, during their respective 

plication. lives ; and if but one child, the whole of said annuity of £50 a-year 

Where there 
is a bequest to to go to such only child for life ; and in the case of the death of 

life, and, if he either of them, Laurence and Thomas Cafifrey, without lawful issue 

haying or leay. l^^ng at his death, he ordered that his annuity should go to the 

^r and there s^'^^^®' ^^^ 1^^®» ^^^ ^ <5*s® ®^ *^® death of both his grand- 

Se wSnto "^ nephews, " without leaving issue, or, leaving such, and that such 

raise an infer- igg^^ should die before the age of twenty-one years,** in either 

ence in favour ^ ^ ^ i 

of the children, 

the Court is at liberty to take them in connection with the bequest in the event of 

tbe parent dying without haying or leaying issue, and to hold that the children are 

entitled by implication. 

A testator bequeathed to each of his grand-nephews, A and B, an annuity for 
their respective Uyes, and, in case of the death of either of them, leaying issue, he 
directed that the annuity of him so dying should go to such issue, if more than one, 
shwre* and share alike ; the share or shares of such child or children as should die . 
under twenty-one or marriage to go to and be equally divided amongst the sur- 
yiyor and suryiyors of such issue, during their respectiye natural liyes; and if but 
one, the whole of the annuity to go to such only child for life ; and in case of the 
death of either A or B, without layrfdl issue liying at his death, that the annuity of 
him so dying should go to the survlyor for his life ; and in case of the death of both 
A and B, without leaying issue, or, leaying such, and that such issue should die 
before tiie age of twenty-one years, then, after the death of the suryiyor of such issue 
of A and B, he directed that the said two annuities should sink into his residual]^ 
personal estate. A died without issue. — Held, that there was a bequest, by imph- 
cation, of A's annuity to the children of B. 



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^ase, and immediately after the death of the survivor of such issue, 
the said two annuities of £50 a-jear should sink into and form part 
of his capital stock and funds, for the residuary purposes of his will ; 
and he bequeathed the residuary fund, subject to an annuity, to his 
nephew John Kinsella. 

The exact terms of the bequest are stated by his Honor, in his 
judgment, infra, pp. 156, et seq. 

Timothy Kinsella died shortly after his will ; and a bill having 
been filed to carry the trusts of the will into execution, by a decree 
in the cause, bearing date the 18th of May 1847, two sums of stock 
were set apart, and directed to be carried to a separate credit, to 
answer the annuities. 

Thomas Caffrey left Ireland in April 1847 ; and not having been 
heard of afterwards, an order was made, on the 13th of July 1858, 
referring it to the Master to inquire and report whether the said 
Thomas Cafifrey was living or dead ; and if the said Thomas was 
married, and, if married, whether he had any child or children. The 
Master, by his report, dated the 17th of February 1860, found that 
he was dead, and had died on the 22nd of April 1847, and that he 
was not married at the time of or previous to his death. 

Laurence Caffrey died on the 19th of October 1857, leaving five 
children, Thomas, Marian, Rosanna, Laurence and John Joseph, all 
under age. 

A motion was now made by John Kinsella, the residuary legatee, 
that the stock set apart to answer Thomas Caflfre/s annuity might 
be transferred to him. 



1860. 
RolU. 




Statement., 



Mr. S. Ferguson and Mr. Lindtay^ in support of the motion, 
contended that, on the death of Thomas Caffrey, his anhuity sank 
into the residue. There was no bequest by implication to the 
children of the survivor. In order to create a gift by implication, 
a clear intention to that effect must be collected from the will. The 
intention to be collected in this will was rather against such an im- 
plication, for both annuities were to go over, in the event of Thomas 
and Laurence dying without issue ; and there was no reason why 
one should not go over, on failure of issue of the party entitled 



ArgwMnt. 



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1860. 

Rolls. 

*■ _' 

KIN8BLLA 
CAFFBRT. 
Argument. 



Nov, 20. 
Judgment. 



to it : Ranelagh y. Ranelagh (a) ; Addison y. Busk (b) ; Toums 
y. Ti^entworih(e) ; Sharks y. Restall{d). 

Mr. Brewster and Mr. Brereion^ contra, contended that there 
was a clear gift by implication. The residuary legatee was to take 
only '^ in case of the death of both my grand-nephews- without leay- 
ing issue, or, leaying such, and that such issue,*' t. «., the issue of 
both, " should die under the age of twenty-one years." So long as 
there was issue of either, the residuarylegatee was to take nothing : 
1 Jar.j p. 462; Scott y. Bargeman {e); Graves y. Holland (f)\ 
Doyne y. Cartwright (g) ; Doe d. Clifi v. Birkhead (A). 



The Master of teub Rolls. 

The question which arises in this case is, on the construction 
of the will gf Timothy Kinsella, dated the 7th of Noyember 1839- 
By that will the testator directed, " That by and out of the annual 

interest, diyidends and proceeds of my Groyemment stock, 

my executors hereinafter named, and the surviyor of them, do and 
shall, yearly and eyery year, pay unto each of my grand-nephews, 
Laurence Caffrey and Thomas Caffrey, respectiyely, one annuity or 
clear yearly sum of £50 sterling ; the same to be charged upon and 
paid and payable unto them the said Laurence Caffrey and Thomas 
Caffrey, out of the annual interest and diyidends of all my said 
Goyemment stock and funds which shall be in the Bank of Ire- 
land at the time of my decease, or out of a sufficient portion of such 
stock and funds, which I order and direct my executors to set apart 
and inyest, for the purpose of securing unto my said two grand* 
^ nephews, Laurence Caffrey and Thomas Caffrey, the said annuities 

of £50 each, so by me bequeathed to them respectiyely 

The said annuities or annual sums of £50 each to be paid and pay- 
able to the said Laurence Caffrey and Thomas Caffrey, for and 
during their respectiye natural liyes, by tv^o equal half-yearly pay- 



(a) l2BeaY.20O. 

(c) U Moo., P. C. C, 543. 

C«) 2 P. WmB. 6a 

{jj) I CoU. 482. 



(6) 14 Beav. 459. 
((/) 24 Bear. 21. 
('/J 11 It. Eq. Rep. 284. 
(Ji) 4£xch.Rep. 110. 



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mente, at the reapective times of the payment of the interest and 
diYidends upon mj said Grovernment stock and funds, or upon 

the portion thereof to be set apart for that purpose And 

my will and desire is, that the said Laurence Caffrej and Thomas 
Cafirey, or either of them, shall not sell or dispose of his, her or 
their said annuity to any person or persons whatsoever ; and in case 
they, or either of them, shall sell or dispose of the same, then and 
in such case, I order and direct, and my will is, that the annuity of 
him so selling or disposing of the same shall go to the other of the 
said annuitants who shall not sell or dispose of the same ; and in 
case of the death of either of them, the said Laurence Caffrey and 
Thomas Cafirey, leaving issue lawfully begotten, then I order and 
direct that the said annuity of £50 a-year of him or them so dying 
shall go to such issue, if more than one, share and share alike ; the 
share or shares of such child or children as shall happen to die before 
the age of twenty-one years, or day or days of marriage, to go to 
and be equally divided amongst the survivor and survivors of such 
issue during their respective natural lives ; and if but one child, 
then the whole of said annuity of £50 a-year to go to such only 
child,, for and during the term of his or her natural life ; and in 
case of the death of either of them, the said Laurence Cafirey and 
Thomas Cafirey, without lawful issue living at his death, then I 
order and direct that the annuity of him so dying shall go to the 
survivor of them, the said Laurence Caffirey and Thomas Caffrey, 
for and during the term of his natural life." 

Before adverting to the clause which next follows, under which it 
is said that there was a bequest by implication, of Thomas Caffirey's 
annuity to Laurence Caffrey's children, it may be convenient to 
state the facts to which I shall now advert, and to consider shortly 
the effect of the bequests I have already read. 

It is found by a report of Master Brooke, dated the 17th of 
February I860, that Thomas Cafirey died upon the 22nd of April 
1847, and that he never was married. Laurence Caffrey survived 
Thomas Caffrey, and died in the month of October 1857, leaving 
Catherine Caffrey his widow (lyho has taken out administration to 
the said Laurence Caffrey), and several minor children. Laurence 



1860. 
EoU». 




Judgment. 



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1860. 




Judgwunt* 



Cafftej received both annoities of £50 a-year, during his lifetime. 
Now the short sabstance of the beqaest of Thomas Caffrej's annaitj 
of £50 a-year (which, on the one hand, is claimed by.the children 
of Laurence, and, on the other hand, by John Kinsella, the resi- 
duary legatee, under the clauses m the will to which I shall just 
now advert) is as follows : — That annuity of £50 a-year was be- 
queathed to Thomas Caiirey for his life. The non-alienation clause 
need not be referred to, as there was no alienation of the annuity. 
If Thomas Caffrey had left issue living at his death, which, under 
the term% of the bequest, I think meant children (a), the annuity of 
£50, bequeathed to the said Thomas Caffrey for life, was to go 
amongst his children ; and if any died under twenty-one, the sur- 
vivors were to become entitled, during their respective natural lives, 
and if but one child, the whole of the annuity was to go to such 
child, for the term of his natural life. The effect of this part of the 
will is, that Thomas' children (if he had been married and left 
children) would have only been entitled for their respective lives. 
By the provision of the will which next follows, Thomas Caffrey's 
annuity (in the event which happened, of the said Thomas dying 
without issue living at his death) was bequeathed to the; said 
Laurence Caffrey for his life. Now it will be observed that 
there was no express bequest of Thomas Caffrey's annuity to the 
issue or children of Laurence ; and, therefore, the validity of their 
claim depends on this, whether the clause which I shall now read 
gave Thomas Caffrey's annuity, by implication, to the children of 
Laurence, Laurence being dead ? That clause is as follows : — *' And 
in case of the death of both my grand-nephews, without leaving 
issue, or, leaving such, and that such issue should die before the age 
of twenty-one years, in either of which cases, and from and imme- 
diately afler the decease of the survivor of such issue of the said 
Laurence Cafirey and Thomas Caffrey, I order and direct, that said 
two annuities of £50 a-year shall sink into and fbrm part of my 
capital stock and funds for the residuary purposes in this my will 
mentioned." 

With respect to those residuary purposes, an annuity of £25 was 

Ca) See Rhodes ▼. Rhodes (27 Bear. 413). 



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CHANCERY REPORTS. 



159 



bequeathed to Mary Marphy, charged on the testator's Govemment 
stock ; and after some other bequests of sums of Government 
stock, there is the following residuary clause: — "And as to, for 
and concerning all the rest, residue and remainder of my said 
capital stock and funds which shall be in the Bank of Ireland at 
the time of my decease, I give and bequeath the same, and the stock 
and funds upon or in which the same shall be invested, unto my 
said nephew John Elinsella (subject to the payment of the annuities 
and legacies, and the interest and dividends thereon, as hereinbefore 
mentioned)," for his life, and, after his death, to the children of 
John Kinsella living at his death, as in the will mentioned ; *' and 
as to the rest, residue and remainder of all my property and effects, 
of whatever nature or kind soever, not hereinbefore dbposed of, I 
give, deviae and bequeath the same unto my said nephew John Kin- 
sella, to be disposed of by him. as he shall think fit." John Kinsella 
and another person were named executors, and proved the will. 

With respect to the question whether the children of Laurence 

Caffrey became entitled by implication to Thomas Cafirey's annuity 

of £50, there is some difficulty, having regard to the authorities. 

In Ra$ulagh v. Banelagh (a), pecuniary legacies were severally 

given to A, B, C and D, during their . natural lives, and, in case 

of the denth of any of them without legitimate issue, his proportion 

was to be divided amongst the survivors. A died, leaving children. 

It was held that they did not take by implication, but that on A's 

death his legacy fell into the residue. Lord Langdale, in giving 

jndgiDent in that cftse, stated, amongst other matters : — " In this case 

the le^tec;, by the express words of the codicil, takes no interest 

beyond bis life ; and if there be no further gift of the legacy, the 

residuary legatee, who takes subject to all that is not otherwise 

well given, must be held entitled. The issue of the legatee is 

named in the codicil only in the description of contingency on which 

the legacy is given over ; and I am unable to find anything which 

assists in collecting an intention to give to the children. I can 

collect no particular intention to give this legacy to the residuary 

legatee (the words residuary legatee were, I presume, used in mistake 

(a) 12 Beay. 200. 



1860. 
RoUs. 




Judgment, 



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CHANCERY REPORTS. 



I860. 
RolU. 




Judgment. 



for children) ; and I cannot answer the question proposed bj Sir 
Thomas Plumer, in Ex parte RogerSy why the children were named 
on the occasion of the gift over. Bat in that case there seems 
to have been found some farther reason, which does not here exist, 
for inferring an implied gift ; and on the whole, mj opinion is, that 
the legacy falls into the residue. I think it extremely probable 
that the testator did mean a benefit to the children, but si voluU 
non dixit, I think there is not sufficient to raise the implication, 
and that the legacy falls into the residue." Sparks ▼. RestaU (a) 
decides the same point. In the case of Addison t. Bush (6), there 
was a bequest of residue to John Lee ; but if he should die in the life- 
time of the testatrix, without leaving children, then to Charles Lee. 
John Lee died in the lifetime of the testatrix, leaving issue. It 
was held that the children of John Lee took nothing by implication. 
That case differs from the present, in this respect, that the devise 
to John Lee was not limited to him for life ; and in that class of 
cases the children clearly do not take by implication. 

In Jarman on WtUs^ 2nd ed., vol. 1, p. 473, it is laid down as fol- 
lows : — *' In several cases it has been considered that a bequest to a 
person, and if he shall die without having children, or without leaving 
children, which means without having had a child bom, or without 
leaving a child living at his decease, does not raise an implied gift 
to the children, but the parent takes an absolute interest, defeasible 
on his dying without having had or without leaving a child, as the 
case may be. The rejection of the implication in such a case is not 
(as already pointed out) productive of any absurdity ; for it supposes 
the testator, by making the interest of the legatee indefeasible on 
his having or leaving a child, to intend that if there are children he 
shall have the means of providing for them.'' Mr. Jarman refers to 
most of the authorities on the subject. The case of Addison v. 
Busk was affirmed on appeal, under the name of Lee v. Busk (c) ; 
and the principle on which it was affirmed was that adverted to by 
Mr. Jarman in the passage I have read. There was no estate for 
life given to John Lee. The devise was indefinite ; and on the prin- 

(a) 24 Beav. 218. (b) 14 Bear. 469. 

(c) 2D., M.DeG.8ia 



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CHANCERY REPORTS. 161 

ciples adverted to bj Mr. Jarman, there was no ground for 1860. 

holding that the children took an estate by implication, and accord- ^^..^i^^^^ 

iiiglj* ift ^&s lield ^l^at there was an intestacy. The case of ^^ 

JRanelagk y. Ranelagh (a), no doubt, appears to decide that, if caffret. 

there be a bequest to A for life, and if he die without leaving judgmeid. 

children, to B, and A dies leaving children, the children will 

not take by implication, and that the bequest will fall into the 

residue. But that is a different case, and involves a different 

question from that decided in Addison v. Busk (b), Mr. Jarman, 

in his work on Willsy 2nd ed., vol. 1, p. 478, states: — "But it 

seems that where the language of the will necessarily confines 

the interest of the parent to his life, the Court will lay hold of 

slight circumstances to raise a gift in the children, and thereby 

avoid imputing to the testator so extraordinary an intention as 

that the devisee or legatee over is to become entitled if the first 

taker have no child, but that the property is not to go to the 

child, if there be one, or its parent." Mr. Jarman then refers 

to Ex parte Rogers (c). In that case, a testator having by his 

will bequeathed £1000 to his niece A, by a codicil, reciting that 

she had married indiscreetly, and that he intended to withdraw 

the legacy out of her power to dispose of it, and out of the 

power of her husband so to do, did therefore direct his executors 

to secure his niece the interest of the said £1000, independently 

of her husband, by placing out that sum in trust for his niece; 

she to enjoy the interest or dividends during her life, and, at 

her decease without child or children, the principal and interest 

to be divided amongst such of her sisters as should be then living." 

Sir T. Plumer was of opinion that, by the combined effect of the 

will and codicil, he was justified in saying that the children took 

the legacy by necessary implication. Why, he asked, did the 

testator mention children if he did not intend them to take ? Mr. 

Jarman then proceeds to state that in Ex parte Rogers ^Uhe 

implication was evidently aided by the testator's prefatory ezpres- 

(a) 12BeaT.20O. 
(fr) 14 Beay. 459; 2 De G.» M. & G. 810. 
(c) 2 Madd. 449. 
TOL. 11. 21 



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1860. 
RolU. 




Jud(fmetU. 



sions in the codicil, which showed that he did not intend to 
deprive his niece of the legacy bequeathed by the will, bat merely 
to qn»Ufy it in a manner suited to her altered condition.'* Mr. 
Jarman then adverts to the observations of Lord Langdale on 
that case, in Randagh v. RaneUighf and to Lord Cranworth's 
observations mLee v. Busk, Now the case before Lord Langdale 
appears to me not to be at all inconsistent with Ex parte Rogers. 
Ranelagh v. Ranelagh only decides that, if there be a bequest to A 
for life, and, if he die without leaving children, to B, the children, 
in the absence of anything on the face of the will from which an 
intention can be inferred that they should take, will not be entitled 
by« implication arising solely from the contingency on which the 
devise over is to take effect. But Sir T. Pluroer appears to have 
held, which is consistent with Ranelagh v. Ranelagh, that the 
Court may, from slight circumstances in connection with the devise 
over, imply that the testator intended the children to take. With 
all respect for Lord Cranworth's observations on Ex parte Rogers^ 
in Lee v. Busk^ his Lordship appears to have overlooked the dis- 
tinction that, in the ktter case, the bequest to the parent was an 
indefinite bequest, and not a bequest for life. The two cases are 
of an entirely different class, and are distinguishable on the very 
clear grounds stated by Mr. Jarman, 

I apprehend, therefore, that the authorities may be classed under 
three heads : — First ; where there is an indefinite bequest to the 
parent, and, if he die without having or leaving children, to B. In 
that case, it is clear that the children do not take any interest by 
implication. Secondly ; if there is a bequest to the parent for life, 
and, if he die without having or leaving children, to B ; if the 
parent dies leaving children, they are not entitled by implication. 
Thirdly ; if, however, in a case such as I have last mentioned, there 
are matters on the face of the will to raise an inference in favour of 
the children, the Court is at liberty to consider these circumstances 
in connection with the bequest' over, in the event of the parent 
dying without having or leaving children, although such bequest 
over, by itself, is not sufficient to justify the Court inferring a gift 
in favour of the children. 



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CHANCERY REPORTS. 163 

If this be the result of the authorities, all of which may be I860, 
reconciled by reducing them to the three classes I have stated, the v ^— ^ 

, , - . , KINSBLLA 

question is, whether there are circumstances in the present case, ^^ 

taken in connection with the gift over, to justify the Court ia gaffrbt. 
holding that the testator intended that the children of Laurence judgment. 
Cafirej should take the £50 a-year bequeathed to Thomas Caffrey 
for life, he having died unmarried, and consequently without child- 
ren ? The one annuity of £50 was bequeathed to Thomas Caffrey 
for life, with the bequest over, which I iiave stated, to his children. 
The other annuity of £50 was bequeathed to Laurence Caffrey for 
life, with the bequest over, which I have stated, to his children. In 
the event of either dying without liawful issue (which, I think, 
means children) living at his death, the annuity of £50 of the party 
so dying was to go to the survivor of them, the said Thomas Caffrey 
and Laurence Caffrey, for life. The annuity of Thomas Caffrey 
was, therefore, in the event, which happened, of his dying without 
children living at his death, to go over for a certain period, at all 
events, viz., during the life of Laurence Caffrey. Then follows the 
provision on which the question mainly turns ; that, in case of the 
death of Thomas Caffrey and Laurence Caffrey " without leaving 
issue, or, leaving such, and that such issue should die before the age 
of twenty-one years^ in either of which cases, and from and imme- 
diately after the decease of the survivor of such issue of the said 
Laurence Caffrey and Thomas, I order and direct that said two 
annuities of £50 a-year shall sink into and form part of my capital 
stock and funds for the residuary purposes in this my will men- 
tioned.** Now John Kinsella daims, as residuary legatee, that 
which, by the passage of the will which I have read, was not to go 
over and form a fund for the said residuary purposes, in the events 
which have happened, of Laurence Caffrey having left children. So 
also the limitation over, in the event of Thomas and Laurence Caf- 
frey dying without leaving issue, or, leaving such, that the issue 
should die under twenty-one, is to take effect only in the event 
of both Thomas and Laurence dying without leaving issue, or, 
leaving such, that the issue should die under twenty-one. So also, 
the limitation over not being confined to Thomas and Laurence 



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CHANCERY REPORTS. 



1860. 
RoU$. 

KIN8ELLA 

r. 

CAFFRET. 

JudgmenU 



dying without leaving issue, or, leaving such, and that such issue 
should die before the age of twenty-one^ would appear to negative 
the idea stated bj Lord Eldon, in Doe v. Wilton (referred to hj 
Mr. Jarman)^ that *' nothing is given to them (the children) bj this 
will. Thej are merely named in the description of the contingency 
on which the estate was to go over." Why was the event of their 
attaining twenty-one introduced in this case, if they were intended 
to take nothing prior to theif attaining twenty-one ? It appears to 
me that the testator intended that, on the death of Thomas Ca£&ey 
without leaving children, Thomas' annuity was to be held by Lau- 
rence, in the same manner as his own, and that Laurence's children 
were to take the same interest in Thomas' annuity, on their £Bither*8 
death, that they admittedly take in their father's annuity. 

I am of opinion, therefore, on the whole, that this case falls within 
the third class of cases which I have mentioned, and that the motiou 
of John EinseUa should be refused. It is a case of difficulty ; and I 
shall not give any costs.* 

* See Egan t. MorrU (L. & G., Ump. Plan.» 297). 



Abo. 6. 



In the Matter of BURGESS' TRUSTS, 
and 11 & 12 Ftc, c. 78. 



Thk petition was presented by Elizabeth Jane Allen, formerly the 
widow of William Burgess, claiming as such, under the Statute of 



A ^aarriage 

setUemeDt 

contained a 

clauBe that -i^v. • 

the provision DistnbuUons, her share of a sum of £1544. Is. Id., lodged to the 

and^intended^ credit of this matter, part of the assets of the said William Burgess, 



her yidoity, 
should be 
accepted, 
deemed and 



By the settlement executed on the marriage of the petitioner, 
then Elizabeth Jane Toung, with the said William Burgess, and 



taken in foil bearing date the 20th of August 1841, certain houses, the property 

lien of dower 

or thirds, to 

which she might be entitled at Common Law, or otherwise howsoerer. — HeU, that 

she was barred of her share of her husband's personal estate, under the Statute of 

Pistributions* 



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165 



1860. 
RoUs. 



In re 
BUBGESS' 
TRUSTS. 



of the petitioner, were assigned to trustees, in trust for William 

Burgess, for life, and, after the death of the petitioner, to the use of 

the said William Burgess, his heirs, executors and assigns ; and a 

sum of £500) the property of the said William Burgess, was assigned 

to the same trustees, in trust to permit him to receive the interest Siatmenu 

during his life, and, after his decease, in the lifetime of the petitioner, 

to permit her to receive the interest for her life, and, after her death, 

in trust for the issue of the marriage, as William Burgess should 

appoint, and, in default of appointment, equally ; and in case of no 

issue, in trust for Richard Burgess, after the death of the petitioner 

and William Burgess ; and it was agreed and declared to be the 

true intent and meaning thereof, 'Hhat the provision hereby named 

and intended for the said Elizabeth Jane Young, in the event of her 

viduity, shall be accepted, deemed and taken in full lieu of dower or 

thirds, to which she might be entitled at Common Law or otherwise 

howsoever.'* 

William Burgess died intestate, on the 3rd of May 1846, leaving . . 
the petitioner his widow, and three children, the survivor of whom « " 
was Mary Elizabeth Burgess. The petitioner claimed one-third of 
the fund in Court, as his widow, and also a moiety of the shares of 
her deceased children. 

The provisions of the settlement, and the rights of the several 
parties, are more minutely stated in his Honor's judjgment. 



Mr. Warren^ for the petitioner. 

The rule, as now established by the authorities, is, that the 
widow's right to her share, under the Statute' of Distributions, can 
only be barred by express words in her settlement. ''Thirds" has 
been held not to mean a share under the statute, because the widow's 
share varies ; and the words " or otherwise " do not carry tht» re- 
striction further, for they must be read in connection with the word 
** thirds : " Berry v. Berrj/ (a) ; Druce v. Denison (*) ; 64rJ^ v. 
Gwrly {e) ; Colleton v. Garth {d) ; Co. Lit., p. 32. 

(a) 6 Ir. Chan. Rep. 497. (6) 6 Ves. 885. 

(c) 2 Dr. & Wal. 463 ; S. C, 6 CI. & Fm. 759. 
{d) 6 Sim. 19. 



Argument. 



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CHANCERY REPORTS. 



1860. 
RoUs. 




Argument. 



Mr. Lemnge, for Marj Elizabeth Burgess. 

The word ** provision,'' used in this settlement, is an index to the 
intention of the parties, which was, that the petitioner should have 
no other benefit from the property of the husband, real or personal, 
except that provided for her by the settlement. That; intention is 
fully carried out by the words '* or otherwise," which are not to be 
found in any of the authorities relied on, and would be insensible 
unless they are applicable to a share under the Statute of Distribu- 
tipns: Walker V.Walker (a). 



Nov. 6. 
Judgment, 



Mr- Warren, in reply. 

In Walker v. Walker^ Lord Hardwicke merely decided that the 
widow was barred of her free bench. The word " otherwise " may 
have effect by being applied to the widow's right to lands, under 
any customary right or statute. 



The Mastek of the Roixs. 

This is a petition under the Trustee Relief Act, presented by James 
Bedford Allen and Elizabeth Jane Allen his wife. The faots appear 
to be as follow : — ^By indenture of settlement, made in contempla- 
tion of the marriage of Richard Burgess with Fhillis Duckett, dated 
the 26th of October 1829, and made between the said Richard 
Burgess, of the one part, the said Fhillis Duckett, of the second 
part, and Richard Mayberry Duckett and Thomas Murray, since 
deceased, trustees, of the third part, two policies of insuranoe on the 
life of Richard Burgess, for £600 each, and also a sum of £1000, 
were assigned by him to the trustees, upon trust, after the decease 
of the said Richard Burgess, to pay the interest of the said two sums 
of £500, and of said sum of £1000, to the said Fhillis Duckett, for 
her life, and, after her decease, in case there should not be issue of 
the marriage at the time of her death, on trust to assign the- said 
sums to the executors, administrators and assigns of the said Richard 
Burgess. There were no issue of the marriage. 

Richard Burgess died on the 18th of October 1844, having pre- 
viously made his will, dated the 1 6th of November 1842, and thereby 

(a) 1 Vm. 54. 



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CHANCERY REPORTS- 167 

bequeathed to TVllliam Burgess, his son by a former marriage, the 1860. 

Roils, 
amount of the two pdicies, subject to testator's wife's life interest 




therein ; and also £500, further portion of the property in his said 
marriage settlement, subject to his wife's life interest therein. 
Fhillis Burgess proved the will on the 1st of March 1845. Wil- Judgment. 
liam Burgess surviTcd his father, and died intestate on the 3rd of 
May 1846, in the lifetime of Fhillis Burgess, leaving Elizabeth Jane 
Burgess, otherwise Young, his wife, and two sons, Richard Howard 
Burgess and William Young Burgess, and one daughter, Mary 
Elixabeth Burgess, him surviving ; and the petitioner submits that 
thereupon the petitioner Elizabeth Jane Burgess, now Elizabeth 
Jane Allen, became entitled to one-third of the sums bequeathed by 
Richard Burgess to William Burgess, subject to the life interest 
therein of the said Fhillis Burgess, and that the children of William 
Burgess became entitled to the remaining two-thirds. Administra- 
tion of the goods of William Burgess was, on the 23rd of May 1846, 
granted to the said Elkabeth Jane Burgess, his widow'. Elizabeth 
Jane Burgess was married again, and is now the wife of James 
Bedford Allen, and they have filed the present petition. Richard 
Howard Burgess and William YotfUg Burgess, the sons of the said 
William Burgess, have died under age, without having been mar- 
ried. Their sister Mary Elizabeth Burgess is now about fourteen 
years of age. The petition states that the shares of the two 
deceased ehildreii passed, under the Statute of Distributions, in 
equal shares, to their mother, the petitioner Elizabeth Jane, and to 
their sister, the said Mary Elizabeth. Richard May berry Duckett, the 
surviving trustee in the settlement of the 26th of October 1829, has 
transftsrred to the credit of this matter, under the Trustee Relief 
Act, £1544. Is. lid., which is invested in £3 per cent, consols, and 
which represents the sums bequeathed to William Burgess by the 
said Riehard Burgess. 

The question which arises in the case is, whether the petitioner 
Elizabeth Jane Allen was barred by the terms of the settlement, 
executed on her marriage with her first husband, William Burgess, 
from claiming one-third of the sums bequeathed to said William 
Burgess by Richard Burgess, the said William Burgess having died 



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CHANCERY REPORTS. 



1860. 
RolU. 

In re 
burgess' 

TRUSTS. 
Judgment. 



intestate? That settlement bears date the 20th of August 1841, and 
was made between Epaphroditus Young and the petitioner, then 
Elizabeth Jane Young, his daughter, of the first part, the said 
Richard Burgess and William Burgess, of the second part, and 
Thomas Carpenter and Richard Mayberrj Duckett, of the third 
part. The settlement, after other recitals, recites that it was agreed 
that Elizabeth Jane Young should convey her interest in certain 
premises therein mentioned to the trustees, and that Richard Burgess 
should assign a sum of £600, part of a sum charged on certain 
estates in said settlement mentioned, to the trustees, on the trusts 
thereinafter mentioned ; and, after such recitals, the indenture 
witnessed that the said Elizabeth Jane Young assigned her interest 
in the said premises (describing them) to the trustees, on trust, 
from and immediately after the death of the said Epaphroditus 
Young, to the use of William Burgess and his assigns, for life ; 
and, after the death of the said Elizabeth Jane Young, to the 
use of William Burgess, his heirs, executors, administrators and 
assigns. I think there is some error in the copy of the settlement 
sent to me, as to the part I have just read; but it does not appear 
to be material, having regard to the question in the case. The 
indenture further witnessed that Richard Burgess assigned said sum 
of £600 to the trustees, on trust to permit William Burgess to 
receive the interest for his life, and, after his decease in the lifetime 
of the said Elizabeth Jane, to permit the said Elizabeth Jane to 
receive the interest for her life ; and, after her death, in the event 
of there being issue of the marriage, the £600 was to be paid to 
and amongst such issue, in such shares as the said William Burgess 
should appoint ; and, in default of appointment, amongst the issue, 
and, in case there should be no issue of the marriage, on trust 
to pay over the £600 to Richard Burgess, after the death of the 
said William Burgess and of the said Elizabeth Jane. The deed 
then contains a covenant by William Burgess to use his best exer- 
tions to become a member of an annuity company for the purpose 
of promoting annuities for widows, and thus to make a further 
provision for the said Elizabeth Jane ; and then follows this pro- 
vision, on which the question arises : — " And it is further agreed, 



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CHANCERY REPORTS. 



169 



by and between all tbe parties to these presents, and declared to 
be the true intent and meaning hereof, that the provision hereby 
made, and intended to be made, for the said Elizabeth Jane Young, 
in the event of her viduity, shall be accepted, deemed and taken 
in full lieu and bar of dower or thirds, to which she might be entitled 
at Common Law, or otherwise howsoever." 

The petition alleges that there was a deed of settlement executed 
on the marriage of the petitioner, but that it does not deal with or 
affect the stock to the credit of this matter. 

With respect to the constrnctibn to be put on the clause in the 
settlement which I have last read, it is necessary to refer to the 
authorities which have been cited. In the case of Colleton v. 
Garth (a), a rentcharge, expressed to be for jointure, " and in lieu 
of dower and thirds, at Common Law," was held to be in lieu only 
of. any claim which the wife might have upon her husband's lands, 
and not to bar her claim under the Statute of Distributions. There 
was no reference in that case to personal estate. In the case of 
Slaiter v. Slatter (6), which was the case of a deed of separation, 
the provision made for the wife was to be in bar '*of all dower 
or thirds, either at Common Law or by custom, which she at any 
time thereafter might claim, challenge or demand, from, out of, upon 
or against the said John Slatter (her husband), or his present or 
future estate, real or personal." The authorities bearing on the 
question were not referred to ; and Lord Lyndhurst, as the report 
states, " without entering into any detail of the circumstances of the 
case, expressed his opinion that there w^s nothing in the deed to 
deprive the wife of any interest to which she was entitled in the 
personal estate of her late husband." I do not think that these cases 
are applicable to the case before the Court. In Druce v. Dent- 
$on{c\ the wife agreed to accept the provisions in the settlement, 
^' in lieu, bar and satisfaction of all dower or thirds, which she might 
otherwise be entitled to oat of all the real and personal estate of her 
husband." Lord Eldon, in giving judgment (p. 394) said : — *' As 
to the word thirds^ the clear intention must be taken to mean her 

(a) 6 Sim. 19. 

VOL. 11. 22 



18«0. 
BolU. 




Judgment, 



(6) IT. &C,Ex.Ca«.,28. 
(c) 6 Ves. 386. 



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CHANCERY REPORTS. 



I860. 

RolU. 
>. ... ■/ 

In re 

burgess' 

TRUSTS. 
Judgment, 



interest in case of intestacy. If that word did not occur, I doubt 
whether the personal estate would not have been included under the 
word ' dower.' The word thirds is never used accurately. It is a 
sort of expression, in common parlance, descriptive of an interest 
upon an intestacy." 

That case, it is said by Counsel for the petitioner, does not 
apply ; for here the words are, " in lieu and bar of dower or thirds, 
to which she might be entitled at Common Law, or otherwise how- 
soever ; " and there is no reference to personal estate. Now, if 
the words ** or otherwise howsoever " had been omitted, the case in 
6 Sim. would have applied. It is difficult, however, to hold, with- 
out acting against the opinion of Lord Eldon, in Druce v. Denison, 
that the words " thirds," at Common Law, or " otherwise howso- 
ever," did not include the claim of a widow, under the Statute of 
Distributions. 

In Gurfy V. Gurfy (a), the jointure was declared by the settle- 
ment to be in full lieu, bar and satisfaction of any dower or thirds 
which the wife should or might claim at Common Law, out of all 
or any of the said estates, real, personal or freehold, of which the 
intended husband was then, or at any time or times thereafter 
should become, entitled to or possessed of. Lord Plunket com- 
mented on the case in 6 Sim.y on the case before Lord Lyndhurst, 
and decided that the wife was barred of all claim on the personal 
estate of her husband, under the Statute of Distributions. TJiat 
decision was affirmed in the House of Lords (6); and the words 
**at Common Law," in the clause in question in the case, were 
relied on ; but the House of Lords considered that Druce v. Dent' 
son was applicable, notwithstanding the introduction of these words ; 
and the Lord Chancellor, in giving judgment, said, ** The words 
* Common Law ' in this passage must, therefore, be construed as 
equivalent to the terms * according to the general law,' * according 
to law,' as distinguished, in ordinary parlance, from Equity ; and, 
unless we put this construction on the clause, the word personal^ 
which is contained in it, would have no effect or meaning whatever." 
The other noble and learned Lords concurred ; and it is to be kept 

(a) 2 Dr. & Wal. 463. (6) 8 CL & Fin. 759. 



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CHANCERY REPORTS. 



171 



in mind that Lord Lyndharst was the Lord Chancellor when that 
case was decided, who had, as Chief Baron, decided the case in 
1 Young Sf CoL, to which the House of Lords was referred. In 
the present case, the clause does not refer to personal estate ; and, 
therefore, the same reason does not applj for giving the meaning to 
the words " at Common Law " which was given to these words in 
Gurfy V. Gurly ; but I cannot reject the words in this case "or 
otherwise howsoever ; '' and I am of opinion, on the whole, having 
regard to the observations of Lord Eldon, in Druee v. Denuan^ 
which case was recognised by the House of Lords, in Gurly v. 
Gurly^ and having regard also to the judgment of the Law Lords 
in the latter case, that the petitioner, Elizabeth Jane Allen, was 
barred by the settlement of 1841 from claiming any part of the 
personal estate of her first husband, William Burgess, under the 
Statute of Distributions. I shall make a declaration to that effect ; 
and I presume the parties will agree upon an order, as to the distri- 
bution of the fund, subject, of course, to the right to appeal against 
my decision. It would be desirable that there should be a schedule 
to the order, explaining the distribution of the fund. I apprehend 
that administration should be taken out to the two sons of William 
Gurly, before the order is made. There is some difficulty on the 
question in this case ; and I think it would be reasonable that the 
costs of the parties should be paid out of the fund in Court. 



1860. 
RolU. 

In re 
BUaOESS' 
TRUSTS. 

Judgment, 



The ATTORNEY-GENERAL r. EVANS. 



June 26, 27. 
Nov, 5. 



The petition was presented under the Acts of the 10 Ftc, c. 32, A rentcharge 

granted to se- 
and 12 & 13 Ktc, c. 59 (the Land Improvement Acts), for the care a loan to 

an owner in 
fee, subject to a rent, by a grant prior to the 14 & 15 Fie., c. 20, haa priority oyer 
the rent, nnder the Land Improyement Act, 10 Ftc, c 32, f. 38. 

Semble. — ^Where the loan is made to a tenant, the rentcharge has not priority oyer 
the rent resenred by his lease, such rent not being a charge or mcombrance, within 
the meaning of the 38th section of the Land Improyement Act. < 



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172 CHANCERY .REPORTS. 

1 860. appointment of a receiver, to pay an arrear of rentcharge due to 
the Crown, in respect of loans made to Richard W. Yielding under 
the said Acts, for the drainage of the lands of Carrigkerrj. The 
loans were made in 1847. At that time, Richard W. Yielding 
was seised in fee, under an indenture of the 7th of June 1845, 
Statement, wherehy John Evans conveyed the said lan<]^ to the said Richard 
W. Yielding, his heirs and assigns, yielding and paying thereout 
to the said John Evan^, his heirs and assigns, the rent of £100 
a-year, payable half-yearly. The deed contained a clause of distress 
and of re-entry, and perception of the rents and profits until the 
rent should be satisfied, and a covenant for payment of it. 

On the 25tb of January 1860, the Court made an order for 
the appointment of a receiver, without prejudice to the question 
of priority between the claim of the Crown for the rentcharge, 
and that of John Evans for the rent reserved by the deed of 
the 7th of June 1845. The sum claimed by the Crown was 
£871. A motion was now made on behalf of the Attomey-Grene- 
ral, that the receiver should pay the arrears of rentcharge due 
to the Crown, and the accruing gales thereof, in priority to the 
rentcharge claimed by John Evans. A cross-motion was also 
moved by the latter for liberty to proceed at Law for recovery 
of the rent. 

Mr. Serjeant Lawson and Mr. C KeUy^ for the Attorney- 
General. 
Argument. The 11th section of the 10 Ktc, c. 32, provides that ^' Any 
owner of land^ within the meaning of this Act, who may propose 
to improve the same under the provisions of thb Act, may apply 
to the Commissioners of Public Works, by memorial, for a loan;" 
and the word " owner," by the 6th section, includes " any persoa 
who shall be entitled to lands under any grant, lease or any other 
deed or assurance, for an estate in fee.'' Yielding was owner 
within that definition; and he applied for a loan, and the appli- 
cation and notices required by the Act were published. No 
objection was made by Evans. The security given for the loan 
was the land — not any particular estate in it; and, under the 



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CHANCERY REPORTS. 



173 



38th section, the rentcharge had priority of ** all charges and incum- 
brances whatsoever, and whensoever made, save and except quit- 
rents and rentcharges. in lieu of tithes, and also save and except 
aU charges prior in date," under the 6 & 6 Ftc, c. 89. The rent- 
charge, being a charge on the land itself, and not on any particular 
estate in it, would have priority over an ordinary rent-service, 
and could be recovered after an eviction by the landlord for non- 
payment of rent. But this is not a rent-service ; it is a rentcharge. 
Since the Statute of Quia EmptoreSy no rent can be recovered on 
a conveyance in fee: ZtV., s. 217; Co. Lii.^ p. 143 b, Harg. note. 
Such a rent, if secured by a power of distress, is a rentcharge, 
and a new purchase, which would have descended to the heirs 
ex parte patema : Co, Lit,^ 12 b ; 3 Pr. on Abstracts, p. 64. 
The legal operation of the deed of 1845 was a grant in fee by 
Evans, and a grant of a rentcharge by Yielding out of the fee 
so conveyed to him. The rentcharge was, therefore, a charge and 
incumbrance on Yielding's estate : Massy v. 0*Dell (a), which was 
a stronger case, for it was the case of a quit-rent reserved by 
the Crown. The Renewable Leasehold Conversion Act, and the 
14 <& 15 Fife., c. 20, cannot affect the question ; for they are both 
subsequent to the fee-farm grant of 1845. 



1860. 
RdU, 




Argument. 



Mr. Brewster and Mr. Jellett, contra. 

This is a case of great hardship, if the Crown has priority; 
for the money was not expended in the drainage of the lands. 
Although the rentcharge is created by the 10 Vic., c. 32, the 
several Drainage Acts, beiqg in pari mcUeriay may be referred to 
in construing its operation. By the first Drainage Act (5 & 6 Vic, 
c, 89, s. 110), priority is given to the sum advanced in preference 
tOj and in priority over, all incumbrances on such land. That 
the word "incumbrance" in that Act was used in its proper 
sense, and contradistinguished from "rent," is plain, from the pro- 
viso: "Provided, nevertheless, that any quit or chief-rent issuing 
thereout, or incumbrance, &c., shall have priority over spch charge, 
to the extent of the value of the lands before such improvement was 
(a) 9 Ir. Chan. Bep. 447. 



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CHANCERY REPORTS. 



1860. 
RolU. 

ATTORNEY- 
GENERAL 
V. 
EVANS. 

Argument, 



effected ; '* and a chief or quit-rent is defined '^ to extend to and 
include all rent or rents reserved upon, Or payable out of, or in 
relation to, any estate or interest of any person being a proprietor 
within this Act, for an estate or interest paramount thereto." Bj 
the 10 Ftc, c. 32, s. 38, ''Every such rentcharge to be secured by 
virtue of this Act shall take priority of all charges and incum- 
brances whatsoever, and whensoever made, except quit-rents and 
rentcharges in lieu of tithes ; and also, save and except all charges 
prior in date, if any existing, under and by virtue of an Act passed 
in the Session of Parliament held in the fifth and sixth years of 
the reign of her present Majesty,** &c. This reference to the 
Drainage Act shows that, by the 10 Ftc., c. 32, it was not intended 
to extend the security, or to give the rentcharge priority over a 
rent annexed to an estate paramount to that of the owner, to 
whom the advance was made. That is the nature of the rent 
in this case. A rent reserved on a grant in fee is different from 
an ordinary rentcharge : Brady v. Fitzgerald {a). If there is not 
an actual there is a quasi relation of landlord and tenant : Baker 
V. Gostling {h) ; Cremen v. Hawkes (c) ; Pluck v. Digges {d) ; In 
the matter of the Estate of James Tipping {e)\ and that is a 
difference recognised and adopted by the 14 & 15 Ftc, c. 20, 
which gives to a rent secured on a grant in fee all the incidents 
of a rent-service, except ejectment for non-payment. That Act 
is retrospective : Major v. Barton (f). The whole scope of the 
Act, and in particular the payment of the sum advanced, in twenty- 
two years (section 7)9 shows that the security was to be the interest 
of the party to whom the money was advanced. If it were intended 
to secure it on the whole fee-simple, why limit the time within 
which the advapce was to be paid off? 



The Master of the Rolls. 

Nov h 

Judgment, . A motion has been made, on the part of the Attomey-Greneral 
(in pursuance of a reservation contained in an order of the Court, of 



(a) 12 It. Eq. Rep. 278. 
(c) 8 Ir. Eq. Rep. 153, 503. 
(«) 2 It. Jur. 172. 



(6) 1 Bing., N. C, 19. 

(<0 1 H. & Br. 81, 

09 2 Ir. Com. Law Rep. 28. 



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CHANCERY REPORTS. 



175 



the 25th of January), that the receiver in this matter should pay 
the arrears of rentcharge due to the Crown, and the accruing 
gales thereof, and the petitioner's costs, in priority to the rentcharge, 
and arrears thereof, claimed by the respondent, Johiji Evans. The 
petition was filed in this case under the Acts of the 10 Re, 
c. 32, and 12 A 13 Vic., c. 59? for the appointment of a receiver, 
to pay the arrear of rentcharge due to the Crown, and the accruing 
gales thereof, payable in respect of loans made under said Acts; 
and an order was made, on the 25th of January, appointing a 
receiver; but the respondent, John Evans, who claimed to be 
paid a rentcharge or fee-farm rent payable to him out of the 
lands over which the receiver was appointed, in priority to the 
claim of the Crown, the order of the 25th of January concluded 
as follows : — ** And the Court doth reserve the question of the costs 
of John Evans appearing on this motion, the Court not at present 
deciding whether the rent payable to him out of the said lands 
has or has not priority over the claim of the petitioner under 
the Lands Improvement Act." 

The present motion has been now brought forward, the receiver 
having funds in his hands; and the question which arises is, 
whether the claim of the Crown has priority over the claim of 
John Evans? 

The facts of the case, so far as they are material to the con- 
sideration of the legal question, are as follow: — On the 7th of 
June 1845, an indenture was executed by and between the said 
John Evans, of the one part, and Richard W. Yielding, of the 
other part, whereby, in consideration of the sum of £19919. 19s. 9d., 
paid by the said Richard W. Yielding to the said John Evans, 
and also in consideration of the rents and covenants thereinafter 
mentioned and reserved, the said John Evans conveyed to the 
said William R. Yielding the lands of Carrigkerry, containing 
722a. 2r. 30p., situate in the county of Limerick ; Habendum 
to the said William R. Yielding, his heirs and assigns, yielding 
and paying thereout to the said John Evans, his heirs and assigns, 
the rent of £100 a-year, payable half-yearly, on the 7th of Decem- 
ber and 7th of June ; and the usual clauses of distress and re-entry 



1860. 
RoUs, 

ATTOBNEY- 
OENEBAL 

r. 

EVANS. 
Judgment, 



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176 



CHANCERY REPORTS. 



1860. 
RoUs. 

ATTORNET- 

OENERAL 

V. 

EVANS. 

Judgment. 



are contained in the deed, and a covenant to pay the rent, <&c. 
William R. Yieldiing having applied, in the year 1847, for a 
loan, to the Board of Works, under the Landed Property Improve- 
ment Act (10 Ftc, c. 32^, obtained an order for the loan of 
£500, under the provisions of the said Act, which order bears 
date the 15th of October 1847, and v^as signed by Sir R. Griffith 
and W. J. Mulvany, Esq., two of the then Commissioners. The 
schedule to the order states the owner to be William R. Yielding, 
and the townland or denomination by which the lands are known as 
Carrigkerry, being the lands conveyed in fee-farm by John Evans 
to William R. Yielding by the indenture of the 7th of June 1845. 
A further loan was made by the Board of Works, to William R. 
Yielding, of £1000 ; and the Commissioners now claim an arrear 
of rentcharge amounting, as I understand, to £871, together with 
the accruing gales ; the effect of which is that, if the claim of 
the Crown, in respect of such arrear, in priority to Mr. John' 
Evans,' be sustainable, he will not for very many years, if ever, 
receive any part of the fee-farm rent or rentcharge payable to 
him under the deed of 1845. It appears, from the affidavit of 
Mr. John Evans, that he received no notice of the application 
for the loans^ from William R. Yielding, or from the respond- 
ents Richard M. Yielding and Hugh E. Yielding, or from anyone 
on their behalf, or from the Board of Works, or anyone on their 
behalf; nor had Mr. John Evans any notice whatever, until long 
after the granting of the loans, in the petition mentioned, of the 
fact of William R^ Yielding having presented memorials for the 
loans ; and Mr. John Evans positively states, in his affidavit, 
that he never saw the notices in the Dublin Gazette^ or heard 
of the publication thereof, until he read the petition. The affidavit 
of Mr. John Evans states that, several months after the death of 
William R. Yielding (who died in the latter end of 1853), the said 
John Evans heard that a large sum was due to the Commissioners 
of Public Works, on foot of loans made to William R. Yielding, for 
the drainage of the said lands, and that little more than half the 
sum had been expended on drainage or improvements ; whereupon be 
addressed a letter to the secretary of the Commissioners, dated the 



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CHANCERY REPORTS 
2l8t of December 1854, 



177 



GENBBAL 

V. 

BVANS. 

Judgment. 



The letter is set out at length in the I860. 

RolU. 
affidavit ; and it explains the facts to the Commissioners, and con- ' v ' 

, ,. . ATTORNEY 

ttms the following passage : — *^ As I was no party ta the application 
made for this money, my interest cannot be affected by it, excepting 
80 far as this additional charge upon the property may prevent a 
solvent tenant from taking it ; and, as I h^ye no remedy, except by 
distress, my head-rent, in that case, may be lost. It is, therefore, 
necessary that the Board should ascertain to what extent the money 
advanced for draining this portion of the late Mr. Yielding's pro- 
perty has been bona fide expended thereon, in order that the property 
may only be charged with what has actually been laid out upon it, 
and the sureties called upon for the balance.'' The affidavit fur- 
ther states that Mr. John Evans called on the Commissioners to 
proceed to recover the arrears, against the parties entitled to the 
estate of William R. Yielding, but that they declined to do so ; and 
the affidavit of John Evans further states that he believes that, if 
proceedings had been taken from time to time to recover the instal* 
roents, as they became due, against the said William R. Yielding, or 
those representing his estate, or deriving under him, the amount of 
the instalments could have been recovered. The affidavit states that 
the Board of Works did not answer the letter of Mr. John Evans. 

Two affidavits are made, one by the solicitor, and the other by the 
land agent of Mr. John Evans, corroborating some of the statements 
made by Mr. John Evans. It is impossible to conceive a much more 
unjust proceeding than that a person who stands in the position of a 
quasi landlord is to be improved out of his property by such pro- 
ceedings as I have stated. The question, however, which I have to 
decide, is not the justice or injustice of the case, but what is the 
construction to be put on the statute? 

It haa been contended, on the part of the Crown, that, even in 
the ordinary case of landlord and tenant, if the tenant falls within 
the definition of an owner under the statute, the Board of Works 
may advance loana 'to the tenant without notice to the land- 
lord — ^may omit to take the trouble to see that the money advanced 
is expended — may lie by for years, without making the tenant pay 
the ina^alinents ; and then may appoint a receiver over the tenant'a 
VOL. 11. ' 23 



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178 



CHANCERY REPORTS. 



1860. 

RolU. 

y , ' 

ATTOBNBT- 
OBNBRAIi 

EVANS. 

■Judgment 



intereat, and insist that the landlord is entitled to no rent, until the 
large arrear due £or iastalments, accrued bj the neglect of the Board 
of Works to proceed sooner, has been paid. So far as that propo- 
sition is concerned^ I am of opinion that there is no foundation for 
it, and that a rent-service is not a charge or incumbrance, within the 
meaning of the section of the statute to which I shall hereafter refer. 
. It iSy however^ secondly insisted that the rent payable to Mr. 
John Evans, under the deed of the 7th of June 1845, is a rent- 
change, Mr. Joba Evans having conveyed the fee tp Mr. Richard 
W. Yielding. I think it nuist be so considered (at all events so far 
as the claim of the Commissioners of Public Works b concerned), 
notwithstanding the provisions of 14 & 15 Fife, c. 20, and that the 
rights or priority of the Commissioners, which existed at the time 
that Act was passed, cannot be affected thereby. Independently of 
that Act, the rent reserved by the deed of the 7th of June 1845 
was, I apprehend, a rentcharge. Sir Michael O'Loghlen so held it 
to be ia Stevelly v. Murphy (a) ; and although, in Brady v. Fitz- 
gerald {b)y the Lord Chancellor differed from Sir Michael O'Loghlen, 
as to a bill in Equity being sustainable, where there were no legal 
impediments to the recovery of the rent reserved on a grant in fee, 
yet his Lordship considered that such rent was a rentcharge. Mr. 
Hargrav^^ a high authority on a question of conveyarcing, in a note 
to Co. Lit., p« L43 &, note 235, says :»** After the Statute of Quia 
Emptor£Sy granting in fee-farm, except by the King, became imprac- 
ticable, because the grantor parting with the fee is, by operation of 
that statute, without any reversion ; and without a reversion there 
cannot be a rent-sec vice, as Littleton himself writes, in section 
216; yet I have seen a modern grant in fee, of a large estate in 
Ireland, reserving a perpetual rent of great value ; but such rent, 
considered as a fee-farm rent, I thought clearly void. However as, 
in the case I allude to, the conveyance con^taifred a power for the 
grantor, his^ heirs and assigns, to distrain for the rent wiien in 
arrear, and also a power to enter, and receive the profits, until 
all arrears should be paid, the rent might be good as a rent- 
charge ; and so, on being consulted, I held it to be." It is, therefore, 

(a) 2 Ir. Eq. Bep. 456. (6) 12 Ir. Eq. Rep. 279i 



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CHANCERY REPORTS. 



179 



clear that, without reference to the Act of the 14 db 16 of The 
Qmeen^ c 20, the rent reserved on the indenture of the 7th of June 
1845 was a rentcharge ; and, without oflbring any opinion as to the 
eff^t of that Act, as to cases occurring after the statute, I an of 
opinion that the legal rights and priority of the Crown which existed 
when the Act was passed (which was passed subsequetit to the 
Umna) were not affected by that Act. 

It is now, therefore, necessary to consider some of the sections 
of the statute 10 Ftc, c. 32, under which Act the loans were 
made to Mr. William R. Yielding. The 37th section provides 
that, in case any loan shall be made under the Act^ the 
lands specified ia the order of the Commissioners of Public 
Works shall, from the date of such order, become charged with 
the payment to Her Majesty of an ananal rentcharge of £6. 
10a. Od. for every £100 of every such loab, from time to time 
advtincdd, including certain costs and CKpeoses^ in said iMictaoB men- 
tioned ; a^d the S^h section enacts that, ** Ev^y such rentcharge^ 
to be secured by virtue of this Act, shall take priority of all charges 
and incumbrances whatsoever, and whensoever made, except qvut- 
renta and rentcharges in lieu of tithes, and also save mnd except all 
charges prior in date, if any, existing under and by virtae of an 
Act passed in the Session of Parliament held in the fifth aad sixth 
years of the reign of Her present Majesty, entitled ' An Aot to 
Promote the Drainage of Lands, and Improvement of Navigatioo 
and Water-power, in connexion with kuth Drainage in Ireland,' and 
two other Acts since passed, amending same Act, or under or by 
virtae of this AcU" The 39th section then provides the mode of 
recovering the rentcharge, by the presentation of a petition in the 
name of the Attorney-General, for the appointment of a receiver. 
The present petition was presented under that section. 

The only question, I apprehend, is, whether the rentcharge reserved 
by the deed of the 7th of June 1845 is a *' charge and incumbrance'^ 
within the 38th section ? I am of opinion that it is. I had occasion to 
consider the question whether a rentcharge was a charge or incum- 
brance, in the case of Massy v. G^Dsll (a) ; and the authorities 

(a) 9 Ir. Chan. Bep. 447, 448. 




JiidgnmU* 



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1860. 
EoUs. 

ATTORKBT- 
OBNERAL 

V, 
EVANS. 

Judgment, 



180 CJIANCERY REPORTS. 

to which! then referred establiBh that it is. That decision was 
affirmed on appeal. It is. not necessary to go through the cases 
again. I am, therefore, of opinion that I must make the order 
sought by the Crown, and direct that the receiver shall pay the 
arrears of rentcharge due to the Crown under the provisions of 
the 10 Ftc, c 32, and, the future accruing gales thereof, and the 
Attorney-General's costs, in priority to the rentcharge claimed by 
the said John Evans. 

With respect to the application made by the respondent, that I 
should permit him to proceed at Law, I think I should not do 
so. On reference to the clause of re-entry, in the indenture of the 
7th of June 1845, it is not a clause of forfeiture for non-payment 
of the rentcharge thereby reserved ; it is only a power to enter, 
and receive the profits until the arrears are satisfied ; and, as Little- 
ton lays down, *^ The feoffor shall have the land, but in manner as 
and for a diitress, until he be satisfied of the rent due,** &c The 
authorities on this subject were referred to in Smith v. Smith (a). 
If I were to permit the respondent either to distrain or bring an 
ejectment, and enter, the effect would be to give him priority over 
the Crown, in contravention to the 38th section of the 10 Vic,^ 
c. 32. I regret to be obliged to make an order against the respond- 
ent, which I consider to be very unjust ; but the terms of the 
sUtute are clear. The injustice does not arise from the statute, 
but from the Board of Works not having enforced payment of 
the instalments as they fell due. 

(«) 5 Ir. Chan. Bep. 07. 



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CHANCERY REPORTS. 181 

1860. 



DUCKETT V. GORDON. ^^^ j3 

Nov. 3. 

The petition in thig matter was filed for the administration of the A, ^^^^ 

joined in 'a 

assets of Colonel Charles Edward Grordon, by William Dackett, who settlement ex- 

ecnted on the 

claimed to be a specialty creditor, under the following circumstances, marruige of 

his danghter. 

In 1843, William Duckett was seised for life of the lands of which con- 

Rathellin, with power, when in possession, to charge them with a that he was de- 

fortane for any wife he should marry, at the rate of £10 per cent., her,°LaiSrw 

for each £100 such wife should bring or give to him as her portion. ^^ I2m*^or 

William Duckett was also seised in fee of the lands of Rathlyon ^ he^iiihtbe 

and Coppenagh. In January 1843, William Duckett married entiUed to dis- 

*^*^ * ^ * pose of, which 

Harriett Isabella Anne Gordon, the daughter of the testator Colonel child's share it 

was calculated 
Grordon, and a settlement was executed in contemplation of the would be at the 

least £5000, 
marriage, on the 17 th of January 1843. That settlement recited but the same, 

that it had been agreed that, in order to make a suitable provision amount there- 

for the intended wife, during the lifetime of William Duckett, by be' a^ertainiMl 

way of pin-money, and after his death by way of jointure, the said ^^ .^d1;he 

William Duckett should convey the said several lands, upon the trusts jjjjjj^^ij ^ 

thereinafter expressed : — " And whereas the marriage portion of ? . po^er to 
*^ ^ '^ jomtnre to the 

the said Harriett I. A. Gordon is to be paid to the said William amount of £10 

per cent, on 

Duckett, and whereas the said Charles Edward Grordon is minded the fortune 

which he 

and desirous to give to his daughter the said Harriett I. A. Gordon, should reoeiTe 

with his wifo, 

as a marriage portion, such sum or child's share as he may be appointed a 

jointure of 
£500 a-year, 
which was also collaterally secured on other lands, not the subject of the power. 
The daughter died in G.'s lifetime. 

Hetif that the recital amounted to an absolute covenant that his daughter 
should haye, on his death, an equal share of his personal estate with his other 
children. 

SemhU — If it was not a covenant, it would have amounted to a binding repre- 
sentation to the same effsct. 

Held alto, that the obligation was not discharged by the daughter's death in 
his lifetime. 



Held aUo, in calculating the amount payable under the covenant, sums advanced 
to other children by the testator in his lifetime should be taken into account 
and be added to the assets. 

Held al99t that interest should not be calculated on the sums so advanced. 



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CHANCEEY REPORTS. 



1860. 
RolU. 




StaiemenL 



entitled to dispose of, which child's share it is calculated will be at 
the least £5000, bnt the same or the precise amount thereof cannot 
be ascertained until the decease of him the said Charles Edward 
Grordon ; and whereas, in the event of the portion of the said Har- 
riett I. A. Gordon falling short of £5000, the said William Duckett 
could not charge the said lands of Rathellin with a jointure of £600 
per annum, it was agreed, by and between the said parties, that the 
other lands hereinafter mentioned, and of which the said William 
Duckett is so seised in fee-simple, should be charged and incum- 
bered with the entire of said sum of £500, or so much thereof 
as the said William Duckett would be unable to charge upon the 
said lands of Rathellin, in aid of and subsidiary to the charge herein- 
after to be made upon the said lands of RathelUn ; it being the 
true intent and meaning of the parties hereto, that, under any 
circumstances, the said Harriett I. A. Gordon should have her join- 
ture of £500 effectually charged upon the lands hereinafter granted 
and appointed, or intended so to be : " and in pursuance of said 
agreement, and in consideration of the marriage, William Duckett 
oonveyed to trustees the said lands of Rathlyon and Coppenagh, of 
which he was seised in fee, for ninety-nine years, in trust to pay 
out of the said lands £100 a-yeat pin-money, and, subject thereto, 
to the use of William Duckett for life; and the said William 
Duckett, in consideration of the said intended manriage, and in 
consideration of the portion or fortune of the said Harriett I. A. 
Gordon, agreed to be paid, as thereinbefore stated, to the said 
William Duckett, and in pursuance of his power to jointure, appoint- 
ed a jointure of £500 a-year for the said Harriett I. A. Grordon^ 
and further conveyed the fee-simple lands, upon trust that, in case he 
did not receive a fortune with the said Harriett I. A* Gordon suffi- 
cient to enable him, under the said power, to charge the jointure of 
£500 on the said lands of Rathellin, the rents of the fee-simple lands 
should be applied to pay such jointure, or to make up the deficiency 
thereof. 

The marriage was celebrated shortly afterwards, and there was 
issue of it, three sons and one daughter. William l>uckett died 
previously to the 1 7th of February 1854. Colonel Gordon made 



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183 



hi» will on the 17th of February 1854, by whioh be recited that he 
had given £2000 to his eldest son, Charles Edward Parke Gordon^ 
and £2000 to hia youngest son, Johu Henry Gordon ; ha bequeathed 
£2000 to Charles Duckett, the youngest son of bia deceased daugh- 
ter, and, if he should die under twenty-one, he bequeathed the said 
£2000 to his grand-daught^, Harriett, Duckett, and be, bequeathed 
a specific sum of £500 to be divided between his said two sons, 
aod he devised and bequeathed some other property to his sons 
and to bis wife, and appointed his sons and Alexander Jopp his 
ea^eeutors, and made his sons residuary legatee^. The ticms of the 
will are atated in the jnd^nent, injra^ p. 187- 

The petition having been referred to Master Litton, under the 
15th section of the Court of Chancery (Ireland) Regulation Act 
1850, he, by a decretal order, made on the 16th of June I860, 
deoUred that, by the settlement of the 17th of January 1843, the 
testator, Charles Edward Gordon, contracted to give to the peti- 
tioner, William Duckett, as much money as either of his sons should 
thereafter receive from him, either by gift in hjs; lifetiin^ or by 
bequest, or intestacy, and directed accounts accordingly; 

The respondents, the sons and executors of the petitioner, 
appealed from the order. 



1860, 
RolU, 

DCJCKBTT 

V, 
QORpON. 

Statement. 



Mr. BrewsUr and Mr. F. White^ for the petitioner. 

First; the recital in the settlement was binding on the testator 
and his assets, as a covenant : Hollis v. Cart (a) ; Wood v. !%€ 
Copper'nun$r9 Company [b)v Barkiporih v. Young^ic); Jones v, 
How{d)i ov as a representation: Hodgson v. ffuichimon. (e)* 

Secondly; the expression ** child's share," in the settlement, 
meana, that, there shall be an equal, diviaion of his property 
among his children, so that Mrs. Duckett shall get, an eqfial 
share of it : Wmia v. Blcufk (f) ; to the exclusion of specific 
legacies ; and in. taking account of the " child's shai^es," thfd tes- 
tator's sons are bound to bring into hotchpot the sums advanced 



(a) 1 Vem. 431. 

(c) 4 Drew, la 

(e) 1 Sim. & St. 525. 



(6) 7 Man.. G. & Sc 906. 

((0 7 Hare, 267- 

f/J 5 Via. Ab. 522, pA 34. 



Argvcmiad. 



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184 



CHANCERY REPORTS. 



1860. 
EolU. 

DUCKETT 

r. 

GORDON. 
Argument, 



Judgwunt. 



to them by the testator in his lifetime, and interest from the date 
of the advances ; for the testator could not act in derogation of 
to the contract which he had entered into : Andrewes v, George (a) ; 
Westcott V. Culliford{b). 

Mr. Warren and Mr. Forbes Johnson^ contra. 

First; no case has been cited where a mere recital, without 
something more, has been held to be a covenant : Farreli v. ffild- 
ridge (e). The recital is so vague and uncertain, that it would be 
very difficult to carry it into effect ; but if any intention can be 
collected from it, it would appear to be that Mrs. Duckett was to 
receive a portion conditionally on her surviving her £Etther. 

Secondly ; if it amounts to an unconditional covenant, the true 
construction of it was, that the testator had an unlimited power of 
disposition, during his lifetime, and his daughter would be entitled 
only to a share of the assets of which he should die possessed : 
Logan v. Wienkoli (d) ; Lord Si. Leonards* Handy Book of Pro- 
perty LaWf p. 106 ; Jones v. Martin (e) ; Randall v. Willis (f) ; 
Eyre v. Munro (g). 



The Master of the Rolls. 

This case is an appeal from the decretal order of E. Litton, Esq., 
the Master in the matter, which order was signed on the I6th of 
June. The petition was filed by the petitioner William Duckett, 
Esq., claiming to be a creditor by covenant, of the late Colonel 
Charles Edward Gordon deceased, whose assets are sought to be 
administered in this suit. The facts of the case are as follow : — 
The petitioner William Duckett was, on and previous to the 1 7th 
of January 1843, seised for life of the lands of Rathellin, with a 
power to the said William Duckett, when in possession, to charge 
said lands with a jointure for any wife he should marry, at the rate 
of £10 per cent, by the year, for each £100 such wife should bring 



(a) 3 Sim. 893. 
(c)4C.B,840. 
(e) 6 Vc8. 265. 



(6) 8 Hare, 265. 
(<0 6 CI. & Fin. 610. 
CfJ 5Vei.261. 



(g) 3K.it, J. 309. 



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CHANCERY REPORTS. 



185 



1860. 
RoUs. 



DUCBLETT 

V, 
GORDON. 



or give to him, the said William Duckett, as her portico. I have 
not seen the instrument creating the power, but I have stated it from 
a recital contained in the settlement which I shall just now refer to. 
The said William Duckett was also seised in fee of the lands of 
Rathljon and Coppenagh, situate in the county of Cnrlow. The judgment, 
said William Duckett being so seised, a settlement was executed, in 
contemplation of his marriage with Harriett Isabella Anne Gor-^ 
don, daughter of the said Colonel Gordon. The settlement bears 
date the 17th of January 1843, and was made and exe* 
cated by and between the said William Duckett, of the first part,. 
Colonel Gordon and his said daughter, of the second part, and 
certain trustees, of the third and fourth parts ; and, after reciting 
the facts I have stated, it further recites that, upon the treaty for ' 
said intended marriage, it was agreed that, in order to make a 
suitable provision for the said Han-iett I. A. Gordon, as well during 
the lifetime of the said William Duckett, by way of pin-money, as, 
after his decease, by way of jointure, he, the said William Duckett, 
should settle, convey and assure the said several lands and premises 
upon the trusts thereinafter expressed ; and then there is a recital 
in the following words : — '' And whereas the marriage portion of 
the said Harriett Isabella Anne Gordon is to be paid to the said 
William Duckett, and whereas the said Charles Edward Gordon is 
minded and desirous to give unto his daughter, the said Harriett 
Isabella Anne Gordon, as a marriage portion, such sum or child's 
share as he may be enabled to dispose of, which child's share it is 
calculated will be at the least £5000, but the same, or the pre- 
cise amount thereof, cannot be ascertained until the decease of him 
the said Charles Edward Gordon ; and whereas, in the event of the 
portion of the said Harriett Isabella'Anne Gordon falling short of 
£5000, the said William Duckett could not charge the said lands 
of Rathellin with a jointure of £500 per annum, it was agreed, by 
and between the said parties, that the other, lands hereinafter men- 
tioned, and of which the said William Duckett is so seised in fee- 
simple, should be charged and incumbered with the entire of said 
Bum of £500, or so much thereof as the said William Duckett would 
be unable to charge upon the said lands of Rathellin, in aid of, and 
VOL. 11. 24 



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186 



CHANCERY REPORTS. 



1860. 
RoUs. 

DUCKETT 

r. 

GORDON. 
Judgment, 



subBidiary to, the charge hereioafter to be made upon the said lands 
of Rathellin ; it being the true intent and meaning of the parties 
hereto that, under any circumstances, the said Harriett Isabella 
Anne Gordon should have her jointure of £500 effectually charged 
upon the lands hereinafter -granted and appointed, or intended so to 
be ; " and, after such recitals, it was, by the said indenture, witnessed 
that, '* in pursuance of the said agreement, and in consideration of 
said intended marriage, *' &c., the said William Dqckett conveyed 
the said lands of Rathellin to the said trustees, of the fourth part, for 
the term of ninety*nine years, on trust that they should, out of the 
rents and profits, pay £100 a-year to the said Harriett, by way of 
pin-money ; and, subject to the said trust, to the use of said William 
Duckett for his life ; and the indenture farther witnessed that, 
'^ in consideration of the said intended marriage, and in consideration 
of the portion or fortune of the said Harriett Isabella Anne Gordon, 
agreed to be paid, as hereinbefore stated, to the said William 
Duckett, *" he, the said William Duckett, in pursuance of the re- 
cited power of jointuring, charged the said lands of Rathellin with 
a jointure of £600 a-year for the said Harriett ; and the indenture 
further witnessed that, '* in further pursuance of the said agreement, 
and for and in consideration of the SMd intended marriage, " &c^ 
the said William Duckett conveyed to the said trustees, of the third 
part, the said lands of which the said William Duckett was seised 
in fee, upon trust that, in case the said William Duckett did not, in 
his lifetime, receive a portion with the said Harriett sufficient to 
enable him, under the power hereinbefore mentioned, to charge the 
jointure of £500 on the said lands of Rathellin, that the rents of the 
fee-simple lands, so conveyed to the said trustees, of the third part, 
should be applied to pay such jointure, or to make up the deficiency 
therein* The marriage took place shortly afterwards, and the peti- 
tioner William Duckett, and his said wife, had four children, three 
sons and a daughter. 

The said Colonel Charles Edward Gordon had three children, 
viz., his said daughter Harriett I. A. Duckett, and two sons, Charlea 
Edward Parke Gordon and John Henry Gordon. The said Harriett 
I. A. Duckett died in her father's lifetime, and before the making 



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of his will, hereinafter mentioned, and her father made no provision for 1 860. 

....... , , . . . . Rolh, 

her m his lifetime, end made no payment to the petitioner m porsuance 

of the e^yenant or contract contained in the said marriage settlement. 

The said Colonel Charles Ekiward Gordon made his will, dated 
the 17th of February 1854, and he thereby directed his debts and judgment. 
funeral expenses to be paid ; and after reciting that in his lifetime the 
tesUtor had given £2000 to his eldest son, Charles Edward Parke 
Gordon, captain in the 75th Regiment, for the purehase of his com- 
mission, and farther reciting that the testator had given, in his 
lifetime, £2000 to his youngest son, John Henry Gordon, to set 
him up in the business of wine-merchant, the will proceeds thus : — 
'' And now that my beloved daughter Harriett Isabella Anne Gor- 
don has died, I give, devise and bequeath to her youngest son, 
Charles Duckett, the sum of £2000, upon my death, to be held in 
trast for him until he attains the age of twenty-one years, and the 
interest thereon to be used towards his education, and such expenses 
as may be deemed necessary during his minority;" and in the 
event of the said Charles Duckett dying under twenty-one, the 
testator bequeathed the said sum of £2000 to his grand-daughter, 
Harriet Duckett. The will then proceeds thus: — '^ And whereas, on 
the death of the Hon. Mrs. Hutcheson, I am entitled to the sum of 
£500, bequeathed to me under the will of the late Lord Glenbervie, 
it is my will and desire that the said sum of £600 shall be divided 
between my sons Charles Edward Parke Gordon and John Henry 
Gordon." The testator then bequeathed a sum of £1000, to 
which he stated his representatives would be entitled, in the 
event of his pre-deceasing his sister, between his said sons. The 
testator then bequeathed his share of his fisheries on the river Dee 
to his son Charles Edward Parke Gordon. Then follows a bequest 
to testat^n^'s wife, of some trifling articles, and he appointed his said 
sons, and his son-in-law, the petitioner, and Alexander Jopp, his 
executors, and made his said sons his residuary legatees. The peti- 
tioner William Duckett, and the respondent John Henry Gk>rdon, 
proved the will, saving the rights of the two other executors. 

Charles Edward Parke Gordon denies the accuracy of the recital 
in his father's will, that he had given him £2000, and he says he 



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CHANCERY REPORTS. 



1860. 
Rolls. 

DUCKETT 

r. 

GORDON. 



Judgment 



only received £1450. ^ L believe the other son also disputes the snm 
alleged to have been advanced to him. 

The first question which arises is, whether there was any covenant 
or contract, by the said Colonel Gordon with the petitioner, con- 
tained in the settlement of the 17th of January 1843 (executed on 
the marriage of the petitioner with Harriett I. A. Gordon, daughter 
of the said Colonel Gordon), to pay to the petitioner any sum as the 
portion or fortune of the said Harriett I. A. Gordon, or any repre- 
sentation made by the said Colonel Gordon, by said settlement, as 
to his intentions, binding on him and on his assets? 

Secondly; if there was any contract or agreement binding on 
the late Colonel Gordon, is the construction put upon such contract 
by the Master the right construction? 

Thirdly* ; if there was a binding contract, and if the construction 
put upon it i>y the Master is not the true construction, what is the 
construction to be put upon it ? 

Fourthly ; did the death of Harriett I. A. Duckett, in her father's 
lifetime, render the performance of the contract impossible ? 

Fifthly; if there was a contract binding on the late Colonel 
Gordon, at the time of his death, and if the construction which I 
think should be put upon the contract be correct, how is such con- 
tract now to be carried into effect ? 

With respect to the first question, I am of opinion that there was 
in the said settlement a covenant or contract entered into by the late 
Colonel Gordon with his son-in-law, the petitioner. The terms of 
the contract are very vague ; but the recitals in the settlement show 
that the petitioner was tenant for life of the lands of Rathellin, and 
had a jointuring power entitling him to charge a jointure at the rate 
of £10 a-year for every £100 his wife "should give or bring to 
him,'* the said William Duckett, as her portion. It was clearly 
intended by the parties to the settlement that the jointuring power 
should be executed, although it may be very doubtful whether the 
agreement of the late Colonel Gordon, contained in the recital I 
have read, authorised the execution of the power. If it was intended 
that the power of jointuring shoftld be exercised, it must, I think, 
have been intended that the said recital should amount to a contract 



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189 



binding on the late Colonel Gordon. That a recital maj amount to 
a binding contract is establbhed hj the authorities which have been 
referred to. That the recital was intended to amount to an agree- 
ment is, fn my opinion, also established, by what follows the recital; 
for it is by the deed witnessed that, ''in consideration of the intended 
marriage, and in consideration of the portion or fortune of the said 
Harriett I. A. Gordon, agreed to be paid, as hereinafter stated*, to 
the said William Duckett," he the said William Duckett conveyed 
the lands of Rathellin to the trustees; and the power to jointure 
purports to be executed. I concur, therefore, with the Master, in 
his opinion that there was a binding contract entered into with the 
petitioner by the late Colonel Gordon, to give a marriage portion 
with his daughter, to be paid to the petitioner on Colonel Gordon's 
death. I doubt whether it is open to the appellants to raise this 
question now, as it appears, from the recitals in the Master's order, 
that he made an order, dated the 16th of September 1858, which 
has not been appealed from, to pay the petitioner a part of his 
claim, which was accordingly paid, and which should not have been 
paid except on the assumption that there was a contract binding on 
the late Colonel Gordon. As I am of opinion that there was a tu>n- 
tract, it is not necessary to decide whether, if there was no contract, 
there was a representation of intention, binding on the late Colonel 
Gordon, and on his representatives. The principal authority on the 
latter point is Hammersley v. Biel (a). I think, however, there is 
strong ground for holding, on the authority of that case, that there 
was a representation of i|ptention on the part of the late Colonel 
Gordon, binding on him, and on his assets. A difficulty arises, as to 
my finally deciding, at present, whether there was such contract or 
representation, on the ground that the minor, Charles Duckett, 
was not represented by Counsel or solicitor or guardian, before the 
Master, or before me ; but I shall advert more particularly to that 
difficulty just now ; it was not raised by Counsel. 

Thre second question is, if there was a contract, or agreement or 
representation, in the settlement, binding on the late Colonel Gordon, 
M the construction put upon it by the Master the correct construction? 

(a) 12CL&F.45. 



1860. 
Rolls. 

DUCKETT 

V. 
OOBDON. 

Judgment. 



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1860. 
RolU. 




Judgment, 



The Master has declared by his decretal order that, according to the 
true coDStrnction and efibct of the marriage settlement of the I7tb of 
January l<84d, the testator, Charles Edward Gordon, contracted to 
give to the petitioner, William Duckett, as much money as either 
of his sons should thereafter receive from him, either by gift in 
his lifetime, or by bequest or intestacy. I am of opinion that that 
declaration is erroneous. I understand thut the Master made the 
declaration on the authority of the cases of Willis v. Block (a) and 
Logan v. Weinholi (6) ; but I do not think that those eases are appli- 
cable, having regard to the terms of the settlement in the present 
case. Suppose the testator had property in his lifetime of the value 
of £6000, which, I believe, was about the value, and that he had 
advanced to one of his sons in his lifetime £6000, and left assets, 
after payment of funeral expenses and debts, to the amount of 
£3000, the petitioner would have been entitled, according to the 
Master's decision, to the whole of such assets, and the other son 
would have been entitled to nothing. So also, according to the 
construction put by the Master on the contract, if the testator 
had not advanced either of his sons in his lifetime, and had given 
nothing, or only 0, nominal sum, to one or both of his sons, and 
had bequeathed his property to a stranger, the petitioner would 
have been entitled to nothing, or only to a sum equal to such 
nominal sum bequeathed to one of the sons. Many other cases 
might be suggested, equally inconsistent with what Was the inten- 
tion of the parties to the settlement. The words of the recital are 
as follow : — *' And whereas the marriage portion of the said Harriett 
Isabella Anne Gordon is to be paid to the said William Dnckett ; 
and whereas the said Charles Edward Gordon is minded and desir- 
ous to give unto his daughter, the said Harriett, as a marriage 
portion, such sum or child's share as he may be entitled to dispose 
o^ which child's share it is calculated will be at the least £5000, 
but the same, or the precise amount thereof, cannot be ascertained 
until the decease of him, the said Charles Edward Gordon ; " and 
t)ie recital then proceeds to provide for the event of the porticm 
being less than £5000. The question is, what is the meaning of 

(a) 4 Row. 170. (*) r CL & F. 61 1. 



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the term "child's share?** I cannot concur with the Master's 
opinion on that point, as stated in the declaration contained in 
the decretal order. 

Thirdly; if there was a contract or a reprsentation hinding on 
the late Colonel Gordon, and on his assets, and, if the construc- 
tion put upon the settlement by the Master is not the true con- 
struction, the question is, what is the true construction? That 
depends, as I have already slated, upon the meaning of the 
term ^* child's share." I am of opinion that the contract of the 
late Colonel Grordon was, that his daughter Harriett should have 
as her portion, on his death, an equal share of his personal estate 
witk his other children, and that such portion should be paid to 
the petitioner. 

In Lord Si, Leonards* Handy Book on Property Law, 7th ed., 
pp. 157, 158 (a work containing a greater aBH>unt of learning than 
any work of a similar size), it is thus laid down: — *'It is not 
unusual for a parent, upon a daughter's marriage, to agree to leave 
her at his death a fortune equal to his other children. Such an 
agreement does not confine or restrict the father's power ; he may 
alter the nature of his property from personal to real, or he may 
give scope to projects, or indulge in a free and unlimited expense ; 
but he win not be allowed to entertain mere partial inclinations 
towards one ohild at the expense of another. If his partiality do 
rise so high, and he will make a difference, he must do it directly, 
absolutely^ and by surrendering all his own right and interest ; he 
must give out-and-out; he must not exercise his power by an 
act which is to take effect not against his own interest, but only at 
a time when his own interest will cease. He cannot, for instance, 
give property in his lifetime to one child, reserving the interest 
to himself; for such a gift is in fact testamentary, and in fraud 
of his agreement." 

In the case of Jones v. Martin, reported in a note to 5 Veeey, 
p. 260, the law was laid down in the House of Lords, in the manner 
stated by Lord St. Leonards^ in his Hantfy Book. The case of 
Jones ▼. Martin is referred to by Vice- Chancellor Wood, in B$fre 
T. Munro (a). In the case of Barkteorik v. Youn^ (6), a question 
(a) 3 Kay & J. 309. {b) 4 Drew. 18. 



I860* 
RolU. 

DUCKBTT 

v. 

GORDON. 
Judgment. 



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CHANCERY REPORTS. 



1860. 
RoU$. 

DUCKETT 

v. 

QOBDON. 
Judgment, 



arose on demurrer, as to the effect of a marriage contract entered 
into with the plaintiff, on his marriage with the daughter of R. C 
Young. The contract of R. C. Young with the plaintiff, as stated 
in one part of the bill, was that he would, at his death, leave to his 
daughter an equal share of his property with his other children ; and 
in another part of the bill, the contract would appear to have been 
that, at his death, his daughter should have an equal share with his 
other children. That is, I apprehend, what was meant in this case 
by *' a child's share." Vice-chancellor Eindersley, in his judgment 
on the demurrer j[p. 18), considered that there was no difference 
between those two Statements in the bill, and said : — ** According to 
either of the two forms of expression, the promise was capable of 
being performed in two ways — either by bequeathing to his daugh- 
ter by will an equal share, or by dying intestate, and leaving his 
children to share equally, under the Statute of Distributions." That 
case differs from the present only in this, that here the contract was 
that the share of Harriett should be paid to the petitioner ; but that 
does not affect the question as to what was the meaning of the term 
" child's share." A question arose in the above case of Barkwarth 
V. Young^ to which I shall advert just now, in considering another 
part of this case. 

In the case oi Janes v. How{a\ decided by Vice-Chancellor 
Wigram, which was referred to and considered by Yice-Chancellor 
Eindersley, in Barkworth v. Young^ a father, on the marriage 
of his daughter with the plaintiff, covenanted with the plaintiff 
that he would, by deed or will, leave and bequeath to his daugh- 
ter an equal share with his other children. That is, I apprehend, 
what in the settlement in the present case is called ^* a child's 
share." The bill in that case was dismissed, on a ground that I 
shall advert to just now, that the contract became incapable of per- 
formance, by the death of the daughter without issue in her father's 
lifetime ; but it. was not doubted that the contract was in its in- 
ception a valid contract, and that a father might contract with the 
intended husband of his daughter, that he would give or leave her 
an equal share of his property with his other children ; i. e^ in other 
words, that her portion was to be " a child's share." If the term 
(a) 7 Hare, 267. 



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193 



"child*!! share/' in the present case, meant that Harriett shonld 
have an equal share of the testator's property, and that the con* 
tract in the present case was substantially the same as in the 
cases I have referred to, except that the portion of Harriett was 
to be paid to the petitioner, the declaration in the Master's order 
is incorrect in declaring that, according to the true construction 
of the settlement of the 1 7th of January 1843, the testator con- 
tracted to give to the petitioner as much money as *' either of his 
sons should thereafter reeeive from him, either by gift in his 
lifetimci or by bequest or intestacy .'^ 

The next question which arises (suppdaing there was a valid 

and binding agreement or representation made by the testator) 

is, whether he was discharged from its obbgations by the death 

of Harriett I. A. Duckett in his lifetime? In Jon€9 v. How{a\ 

to which I have already referred, the father, on the marriage 

of his daughter, covenanted with the plaintiff that he would by 

deed or will give, leave and bequeath to the daughter an equal 

share of his real and personal estate with his other children. She 

died in her father's lifetime, ^ without issue;' and, on the latter 

ground, it was held that Ibe agreement was incapable of being 

performed. That case was considered by Vice-Chancallor Ein- 

deraley, in the case of Barkworih v. Young (b)y the marginal 

note to which is not correei; and, having regard to the judg^ 

ment of the Yice-Chaocellor, commencing at page 18^ and that 

Harriett L A. Duckett left issue^ the contract would have been 

capable of p^ormanoe if^ in the present case, it had been to 

give or leave a child*s share to the said Harriett. But no diffi- 

eoltj auch as arose in Barbeorih v. Young ariaes here, as the 

ooBtraet in this case was, that the portion of the said Harriett 

alioold be paid to the petitioner; and the late Colonel Grordon 

might have made a will, leaving such portion to the petitioner, 

whidi, I apprehend, would have been a performance of the con- 

iract* I do not, therefore, think that the death of Harriett in 

ibe lifetime of her father rendered the contract or representation of 




JuigwteM* 



(a) 7 Hare, 267. 
TOL. 11. 



(*) 4 Drew. 1. 



23 



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CHANCERY REPORTS. 



1860. 
Rolh. 




Judgment. 



the late Colonel Gordon, contained in the settlement, incapable of 
performance. 

The next question which arises is, as to the manner the contract 
should be carried into effect, assuming that the construction which 
I put upon it be correct. If the contract of the late Colonel 
Gordon had been similar to the agreement in Barkworth v. Youngj 
that he would, at his death, leave to his daughter an equal share 
of his property with his other children, or that his daughter should 
at his death have an equal share with his other children, according 
to the judgment of the Vice- Chancellor (p. 18), it could have been 
performed in two ways, if Harriett had survived her father, ^' either 
by bequeathing to his daughter by will an equal share, or by dying 
intestate, leaving his children to share equally under the Statute of 
Distributions;" and, in page 20, he states :—^'* Now here, it was 
manifestly the intention of the parties that, in one way or the other, 
the daughter should have an equal share of the testator's property." 
Any testamentary disposition which would have prevented the 
daughter taking an equal share of the testator's property would, 
according to what is laid down by Lord Si. Leonards^ have been 
a fraud on the agreem^t. Now if, in the case of Barkworth 
v. YounQy the term used had been ** child's share," instead of 
*^ equal share of his property with other children," I should have 
considered the meaning to be the same. If so, the contract in 
the present case being that the portion should be paid to the 
petitioner cannot vary the amount payable. The amount payable 
was, in my opinion, an equal share; that is (the late Colonel 
Gordon having had three children), one-third of his property ; 
and, in calculating what that one-third would amount to, I think 
that the sums advanced to the two sons should be taken into 
consideration, and, being added to his assets, the petitioner would 
be entitled to such sum as would be equal to one-third. The 
two sons would not, of course, be bound to bring their shares 
into hotchpot, unless they claimed a part of the assets ; but, as 
I understand the argument addressed to me, they deny that the 
^ill correctly states the sums advanced to them by the late Colonel 
Gordon in his lifetime; and they contend that, if the constmction 



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CHANCERY BEPOBTS. 



195 



which I put on the settlement be correct^ they are entitled (bring- 
ing the sums so advanced into hotchpot) each to a child's share. 

A question was raised by the petitioner, as to the two sons being 
charged with interest on the sums to be brought into hotchpot; 
but I am not aware of any case in which, where sums advanced 
are brought into hotchpot, interest has been charged. When I speak 
of money being brought into hotchpot, that expression is, strictly 
speaking, only applicable to cases under the Statute of Distributions. 

I overlooked, during the argument, my attention not having 
been called to the fact, that the minor son of the petitioner, 
to whom £2000 was bequQiithed by the late Colonel Gordon, had 
an interest adverse to that of the parties who appeared on the 
appeal, and had an interest in disputing the claim of the two sons 
of the late Colonel Gordon ; and I sent in an order, shortly after the 
Court rose last Sittings, which recognised the claim of the two sons. 
I think that the minor ought to have been represented both in the 
Master^s office and in this Court ; and I accordingly afterwards put 
a stay on the order. The way in which the claim of the two sons, 
supposing the construction I put on the settlement to be correct, is 
sought to be established is this : — The contract, as I construe it, is, 
that the portion of Harriett L A. Gordon was to be an equal share 
of the property of the late Colonel Gordon with his other children ; 
and the two sons contend that this in effect was a contract by the 
late Colonel Gordon, that his personal property should be equally 
divided between all his children. This is a question, however, which 
Counsel for the minor should have been heard upon. The two sons 
were no parties to the settlement ; and it might be argued that there 
was no contract with them, and no contract with the petitioner for 
their benefit ; and, if there was, that neither the marriage consider- 
ation, nor any other consideration in the settlement, extended to 
them. Suppose that the petitioner had adopted the course of making 
no claim on foot of the covenant, leaving the assets to be applied to 
the payment of the legacy to the minor, could the sons of the late 
Colonel Gordon have filed a cause petition, claiming under the agree- 
ment in the settlement ? Or, if the suit had been instituted in the 



1860. 
RolU, 




Judgment. 



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CHANCERY REPORTS. 



1860. 




Judgm^m* 



name of the minor, to raise the amount of his legaey, and the 
petitioner had filed no charge in such suit on foot of the eoTenant, 
could the sons of the late Colonel Gk>rdon have claimed nnder the 
covenant ? If not, the question then arises, can the fact of the peti- 
tioner claiming under the covenant give rights to the two sons of the 
late Colonel Gordon to make a claim as creditors, and thus defeat 
the bequest to the minor ? 

I think that Cornnsel on both sides will, on consideration, see 
that the minor ought to have been represented in the suit, and that, 
if he is not represented, the decision of the Court would not be 
binding on him. I shall be willing to sanction any course which 
will lead to the least expense, provided there be a bona fiit ap- 
pearance, by Counsel of eminence, on the part of the minor. 
There is doubt on the point, which was not argued before me, the 
minor not having be^n represented. If such objection had been 
made on the part of the minor, it might, perhaps, have been con- 
tended that the covenant was substantially the same as the cove- 
nant in BarkmwrA v. Knm^ ; and that it was a contract with the 
petitioner, that his intended wife and her two brothers should each 
have a child's share, t. e., an equal share of Colonel Gordon's per- 
sonal estate ; and if so, and supposing that there was no objection 
to the claim of her two brothers, except the want of consideration, 
that, although a Court of Equity will not, upon a bill or cause 
petition filed by a volunteer, give him any assistance, yet, upon a 
Inll or cause petition filed by any of the parties to the deed, from 
whom any valuable consideration moved, all the trusts will be car- 
ried into efleot, even those in favour of volunteers. That was 
decided by Vice^ChanceUor Bruoe, in DavenpoH v. Bishop («), 
which decision was affirmed by Lord Cottenham, on appeal (6). 

The question, however, is, whether I am justified in deciding 
diis point, in the abeenoe of the minor ? Th^ Master has declared, 
by his order, that Uie legacy to the minor, Charles Dnckett, ^* has 
altogether &iied of efiect, by reason of there being no assets or 
property of the testator to answer the same." That was the reeult 



(a) 2 Y. & C. C. C, 451. 



(6) 1 PhilUps, 668. 



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CHANCERY REPORTS. 197 

of the' Master's constraction of the contract; and the same result I860. 

J?oiSb. 

would, I believe^ follow from the construction which I have put ^ , ' 

on the contract ; but I am not quite sure of this. It is, no doubt, ^ 

perfectly settled, as a general rule, that a pecuniary legatee is not a oordoit* 
neoessary or proper party to a bill or petition for an account of the judgment 
personal estate, it being the duty of the executors to protect the 
estate against improper demands; but where, as in the present 
case, the interest of the minor is adverse to that of three of the 
executors (the petitioner and the two sons of the late Colonel Gor- 
don, who are respondents, being executors of the 3vill), I apprehend 
I should not fin|illy dispose of the case, without the minor being, in 
some way, made a party to the proceedings : The Marquis of Hert- 
ford V. Ziehi (a). I have, therefore, put a stay on the order. There 
ought, under the circumstances, have been a guardian ad litem 
appointed. . As to the best mode of obviating this objection, it 
will be for Counsel to consider. 



It turned out that there would not be assets to pay any part of 
the legacy bequeathed to the minor, after providing for the peti- 
tioner's claim ; and an order was accordingly agreed to by Counsel, 
in accordance with the judgment of the Master of. the Rolls, 
and the order of Master Litton was varied, and the funds were 
distributed. 

(o) 9 Bear. 11. 



* Note. — Mr. Serjeant Launon haying been com olted, on behalf of the minor, 
gave the following opinion: — 

** I haye considered this case on behalf of the minor ; and I am of opi- 
Dioo that the petitioner deariy has a demand against the assets of Colonel 
Gordon, as a creditor, by Tirtne of the contract contained in the marriage settle- 
ment of Bir. and Mrs. Buckett, and is entitled to haye that demand satisfied 
oat of the assets, before any legalee be paid. As against the demand of the peti. 
tioner, therefore, I think that the minor has no case. A pecnniaiy legatee has 
no remedy if a creditor sweeps away the assets, which wonld otherwise be appli- 
cable to pay his legacy. Kor can I see the least reason for donbthig that the 
Mastse of the Rolls has come to a right oondnsion as to the nature and 
extent of the petitioner's demand. Whether the minor will be entitled to receire 
anything on foot of the £2000 legacy depends on the state of the assets. Now, 



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CHANCERY REPORTS. 




I860. looldng ftt the report, it appears that the general personal assets will be all re- 
RoUs. qnired to make up the amount claimed by the petitioner. The £500 and £1000 

mentioned in the will are specifically beqneathed, and the minor is not entitled to 
be paid ont of them. 

" If, after satisfying the demand of the petitioner, there were a residue, I 

should be of opinion that two-thirds of snch residue wonld be applicable to pay 

Judgment* the legacy to the minor, in preference to the daim of the sons as residoaiy 
legatees ; for, I think that, thoagh the contract in the marriage settlement was 
to give petitioner a child's share, there was no contract to give a like share to the 
other two children ; for instance, if testator had, by his will, given Mr. Dnckett 
a (nil third of all his property, and so performed the obligation, he might hare 
disposed of the rest of his property as he thought fit If the marriage settlemspt 
amounts to a contract to divide all his property equally amongst his children, as 
in Jones v. Martin, even this opinion would be wrong ; but I do not think it can 
be held that the father, by his contract, intended to fetter himself as to the mode 
in which he might share his property with his other children. * 

'* This is a point, however, which does not call for decision; there is no lesidae 
to give rise to the question ; and I am, therefore, of opinion that no benefit can 
accrue to the minor from, the legacy of £2000. 

** Jambs A. Lawson.'* 
'* 27th of November 1860," 



Ju9e 9. 

Nov.e. 

A deposit of 
title-deeds, to 
be delivered to 
a solicitor, for 
the purpose of 
preparing a 
legal mortgage 
to secure an 
antecedent 
debt and fu- 
ture advances, 
though there 
be no agree- 
ment in writ- 
ing for a mort- 
gage, consti- 
tutes a valid 
equitable 
mortgage. 



BULFIN V. DUNNE. 

This was a motion by way of appeal from a decretal order of 
Master Murphy, of the 9th of May I860, by which he declared 
that the deposit of a lease of the Portobello Hotel, on the 8th of 
January 1859) constituted a valid equitable mortgage. The lease 
was given to the petitioner, and delivered to his solicitor by Peter 
Ryan, the lessee, for the purpose of preparing a deed of mortgage 
of the property, to secure a debt due to the petitioner, and further 
advances. A draft of the proposed mortgage was prepared and 
given to Peter Ryan, for his approval; but he retained it; and 
no mortgage was executed. No memorandum was given by Ryan 
when he gave the lease. The premises, being leasehold, were sold 
under 2k fieri facicuy and conveyed by the SherifiT to the respondent, 



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CHANCERY REPORTS. 199 

DuDDe. The petition prayed m foreclosure and sale. The Master 
to whom the matter had been referred, under the 15th section of 
the Court of Chancery (Ireland) Regulation Act 1850, by the 
order appealed from, ordered a sale, in pursuance of the prayer 
of the petition. The particular facts of the case kre fully stated 
in the judgment. 



1860. 
Rolls. 




SiaUment, 



Mr. Brewster^ Mr. F, W, Walsh and Mr. Hamill^ for the appeal. 

The single proposition on which the Master's order is founded is, 
that a person who delivers his original title-deeds to the solicitor for 
the lender, for the purpose of preparing the legal mortgage, thereby 
mortgages his property. There was no agreement in this case for 
any particular mortgage. A debt was due; but there was no 
arrangement as to the time when it was to be paid ; and, although 
a mortgage, was contemplated, the terms of it had not been agreed 
on. The only express authority to support the Master's order is Lord 
Eldon's, in Ex parte Bruee (a) ; and that is a very short case. The 
facts are not fully stated in the report of the case ; and it is opposed to 
Lord Eldon's own opinion expressed in Ex parte Hooper (b) and 
Ex parte Pearse and Protheroe (e). In Edge v. Worthington (if), the 
question did not arise. • A legal mortgage had been executed ; and 
there was no further advance to be made, tn Hockley v. Bantock (0), 
in Keys y. Williams (f) and James v. Rice (^), there was an express 
agreement for an equitable mortgage, independently of the delivery of 
the title-deeds, for the purpose of preparing the legal mortgage. It is 
that express agreement which constitutes the equitable mortgage; 
and the deposit of the deeds is only evidence of the agreement : 
Russel v. Russel (h). If the deposit of the deeds may be referred 
to any other purpose — if they are not deposited expressly as a pledge 
for securing a particular sum, there is no equitable mortgage: Bran* 
den v. Boles (t) ; Norris v. Wilkinson (A) ; Brisiok v. Man- 



Argument 



(a) 1 Boae, 374. 
(e) I Bnck, 525. 
(e) I Robs. 144. 
{g) 5 D., M. & G. 461. 
(0 PWc in Ch. 875. 



(6) 1 Mer. 7. 

(d) 1 Ck)x, 211. 

09 3 Y. & Col., Exch., 62. 

(*) 1 Br. C. C. 269. 

(A) 12 Yes. 192. 



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200 



CHANCERY REPORTS. 



1860. 
Rolh. 

^ ^ ' 

BULFIN 
V. 

Arguwient* 



Nov. 6. 
Judgment, 



ners (a) ; Ex parte Bulteei (b) ; 5 Jarwum an Camvej^ncingj p. 1 i 3 ; 
Spooner y. Weyman (c). 

Mr. D, Sherlock and Mr. 2). C Berou, in support of the MaB- 
ter's order, relied on Ex parte Bruce (<Q, and were stopped by the 
Court. 



The Master of the Rouls. 

This 18 a foreclosnre petition, founded on an agreement for a 
mortgage and deposit of a lease, in the petition mentioned. The 
case having been referred to Master Murphy, under the 15<th section 
of the statute, he made an order, which was signed on the 9th of 
May 1 860, which order contained the following declaration : — '' It is 
hereby decreed and declared that the agreement m the petition 
mentioned, and the deposit of the lease, bearing date the 4th of 
December 1856 (in the petition mentioned), upon the 8th day of 
January 18599 constitute a vldid equitable mortgage for the sum 
due and owing to the petitioner at the time of the agreement of 
the 30tlL of December 1858, in the said petition mentioned, amount- 
ing to the sum of £635. Is. 5d. ; and declare the same a charge upom 
the said mortgaged premises accordingly." And then fc41ows a 
declaratioa that the petitioner is entitled to the costs of the snit ; 
and a sale of the PortobeUo Hotel (the property demised by the 
said lease) is directed, in default of payment of the sum doe to 
the petitioner. The notice of appeal seeks the rey^rsal of the 
said order, and that the petition may be dismissed. 

The facts appear to be as follow :-^By indenture of lease, bearing 
date the 4th of December 1856, the Grand Canal Company .demised 
to Peter Ryan, his executors, administrators and assigns, the pre« 
mises known as the PortobeUo Hotd, for a term of ninety-nina years, 
at the rentof £125. The leasewaa registered on the 27th of June 1857, 
but no question turns on that. Peter Ryan entered into the posses- 
sion of the premises, and carried on the business 9f an hotel-keeper 



(a) 9 Mod. 284. 
(c) 20 Bear. 607. 



ifi) 9 Cox, 243. 
(d) 1 Rose, 394. 



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CHANCERY REPORTS. 



201 



therein. The petitioner was and is a wholesale grocer ; and from the 
time Peter Ryan commenced business in the hotel, the petitioner sap- 
plied him with groceries, wines and spirits, and other shop goods, to a 
large amount. In the month of December 1858, Peter Ryan was in- 
debted to the petitioner in the sum of about £574, for goods sold and 
'delivered by the petitioner to the Said Peter Ryan. Peter Ryan ap- 
plied to the petitioner to accommodate him with a further advance 
of money and goods, and the petitioner agreed to advance £229. 
Os. 9d., which, together with the sum then doe, would make up 
the sum of £800, on the terms proposed by Peter Ryan, that he 
would grant his interest in the hotel and premises at Portobello, and 
the furniture and fixtures therein, on mortgage to the petitioner. 
The petitioner agreed to said proposal, on the 30th of December 
1858; and the petitioner, on the faith of said agreement, did, on 
that day, deliver goods to Peter Ryan, to the value of £24. 12s. 2d. 
Peter Ryan, afterwards, about tbe 7th of January 1859> called on 
the petitioner, upon the subject of the proposed loan, and stated that 
the tenant's part of the original lease of the 4th of December 1856| 
of the hotel premises, was then in the possession of' Messrs. Henry 
Rooke and Sons, as the solicitors of the Grand Canal Company, the 
lessors named in said lease, and who claimed a lien thereon for the 
amount of £3. 178. 4d., for the costs of registering the lease. The 
petitioner then handed to the said Peter Ryan the sum of £4, for the 
purpose of paying the said costs, and getting up the tenant's part of 
said lease, and then directed Peter Ryan to hand said lease to James 
Patrick Madden, the petitioner's solicitor, in order to enable the said 
James Patrick Madden to prepare the necessary mortgage, pursuant 
to the said agreement. Peter Ryan paid the Company's solicitor the 
said sam of £3. 178. 4d., and, having got the said lease from the 
Company's solicitors, he handed it to the petitioner's solicitor, for the 
purpose of preparing a mortgage of the said premises, both as secu- 
ritj for the debt then due, and as a security for the future advances, 
pursuant to said agreement with the petitioner ; and, at the same 
time, Peter Ryan gave James Patrick Madden the necessary in- 
formation, in order to have the deed of mortgage prepared. James 
Patriek Madden wrote dow?^, in the presence of Peter Ryan, the 



1860. 
Rotts. 

' . ' 

BUIiFIN 

V, 
DUNNE. 

JudfffMtU, 



VOL. 11. 



26 



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202 



CHANCERY REPORTS. 



1860. 
RoUs. 




Judgment. 



heads of the mortgage, which were read over and approved of hj 
said Peter Ryan. James Patrick Madden proceeded to draft the 
mortgage, and, while same was being prepared, the petitioner, on 
the 10th of January 1869, at the request of Peter Ryan, made a 
further advance to him of the sum of £31, which sum of £31 was 
part of the sum agreed to be advanced. James Patrick Madden 
had prepared the draft of the mortgage on the 10th of January 
1859i and it was then lying in his office, but a blank was left at the 
end thereof for the schedule of furniture, Peter Ryan having under- 
taken to furnish such schedule. Peter Ryan, on or about the said 
10th day of January 1859, called at the office of James Patrick 
Madden, and left with him a list of the furniture, which was to 
compose the schedule at the end of the said indenture of mortgage. 
On or about Tuesday the 41th of January 1859» Peter Ryan called 
at the office of James Patrick Madden, who handed to Peter Ryan 
the draft of the mortgage for his approval; Peter Ryan did not 
object to the draft, but took it away, and never returned same either 
to the petitioner or to James Patrick Madden-; but the said draft 
was returned to the office of James Patrick Madden, on the 13th of 
May 1859, by James Sinnott, the solicitor for John Dunne and 
Patrick Beahan, trustees named in the marriage settlement of Peter 
Ryan, which settlement bears date the 4th of July 1854. The said 
John Dunne and Patrick Beahan, trustees of the said settlement, 
having revived a judgment executed to them by Peter Ryan, at the 
time of the execution of the marriage settlement, 9i. fieri fac%a$ was 
issued thereon, on the 1 1th of January 1859» and the Sheriff of the city 
of Dublin seized thereunder the said hotel premises and the furniture. 
Cautionary notices were serv^ed, by the petitioner, on the Sheriff and 
on John Dunne and Patrick Beahan, stating his claim as equitable 
mortgagee* The sale by the Sheriff, under said writ, of the lease- 
hold interest and term of years in said hotel premises at Portobello, 
took place on the 10th of March 1859, and the said John Dunne 
was declared the purchaser, for the sum of £40. An assignment of 
«aid premises wsa executed by the Sheriff, and by said John Dunne. 
The question is, whether there was a valid equitable mortgage 
to the petitioner, of the Portobello Hotel ? If there was, the 



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CHANCERY REPORTS. 



203 




«ale to the respondent John Dunne, under the jUri faeiaty ia 1860. 

BolU. 
subject to the equitable mortgage, of which he had full notice. 

If there was no equitable mortgage, John Dunne, as purchaser 
under the execution, is entitled to dismiss the petition. It was 
decided by Lord Thurlow, in the case of Russel v. Russel{a\ also Judgmmu. 
reported in 1 White Sf Tudoi^s Leading Cases^ that notwithstand- 
ing the Statute of Frauds, a mere deposit of title-deeds by a debtor, 
f<^ the purpose of securing a sum of money, although there was no 
writing manifesting the purpose for which the deposit was made, 
gave his creditor, in whose hands they were placed, an interest 
in the land to which they related, so as to entitle him to file a 
bill for a sale. That decision, although disapproved of, has been con- 
stantly acted upon, and is regarded as a binding authority. Several 
of the cases subsequent to Russel v. Russel are collected in Messrs. 
White Sf Tudof^s note to that case. It is, however, contended, 
on the part of the respondent, that the deposit in this case was 
for the purpose of preparing a legal mortgage, and that in such 
cases the deposit does not constitute a good equitable mortgage. 
There is a conflict of authority on the question, whether a deposit 
of title-deeds, for the purpose of preparing a legal mortgage, con- 
stitutes a good equitable mortgage? The several cases on the 
subject are collected by Messrs. White Sf Tudor^ in the note to 
Russel V. RusseL With respect to the decision of Sir W. Grant, 
in Norris v. Wilkinson^ the evidence, I think, clearly showed that 
the deeds were not lodged to secure the debt. That case, there- 
fore, does not affect the question. In the cases, however, of 
Branden v. Boles (6), Ex parte Bulteel (c). Ex parte Hooper (d), 
and Ex ' parte Pearse and Protheroe {e\ it has been decided 
that where deeds are not deposited expressly as a pledge fot 
securing a particular sum, but are delivered to a solicitor for the 
purpose of enabling him to prepare a security to be thereafter 
executed, the deposit does not constitute a good equitable mortgage. 
On the other hand. Lord Eenyon, in Edge v. Wortkington (f)^ 



(a) 1 B. C. C. 260. 
(c) 2 Cox. 243. 
(e) 1 Back, 525« 



(6) Prec. in Ch. 375. 
(rf) 1 Mcr.7. 
09 lCox,2lU 



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204 



CHANCERY REPORTS. 



1860. 
Rotts. 




Judgment. 



held that an agreement to give a legal mortgage, with a deposit 
of the title-deeds, for the purpose of preparing the legal mort- 
gage, constituted a valid equitable mortgage. Lord Eldon was 
of the same opinion, in Ex parte Bruce {a), where he observed 
that tlie principle of equitable mortgages was, that the deposit of the 
deeds was evidence of the agreement ; but, if the^ were deposited for 
the express purpose of preparing the security of a legal mortgage, 
that was stronger than an implied intention. This case has been fol- 
lowed by Lord Giffbrd, M. R., in Hockley v. Bantock (6). In Ke^ft 
V. Williams (c), Lard Abinger, in giving judgment, said that, " If 
it were necessary to decide the specific point, I should say that 
an agteement to grant a mortgage for money already advanced, 
and a deposit of deeds, for the purpose of preparing a mortgage, 
is in itself an equitable mortgage by deposit ; but here the deposit 
was evidently made as a present security, as well as with a view 
of preparing a future mortgage." A sale was decreed in that 
case, in default of payment. Lord Eldonf's opinions, in Ex parte 
Hooper (cQ, 9JoA Ex parte Pearse and Protheroe{e)^ cannot be recon- 
ciled with his decision in Ex parte Bruce; but^ it will be observed, 
that neither the last-mentioned case, nor Edge v. Worihingtom^ 
were cited in those cases. Messrs. White Sf Tudor^ after referring 
to the case, state that, " Upon the whole, taking into consideration 
that Branden v. Boles, and Brisiek v. Manners^ Were<lecided before 
JRussel V. Russely and that Edge v. Wortkis^ton was neither in 
print, nor noticed, when Norris v. Wilkinson was argued before 
Sir W. Grant, M. R., we may arrive at the conclusion that the 
balance of authority is in favour of the proposition that a delivery 
of deeds, for the purpose of preparing a legal mortgage^ constitutes 
in fact a valid equitable mortgage." 

I shall follow the decisions of Edge v. Wortkington, Ex parte 
Bruce^ Hockley v. Bantock, and the opinion of Lord Abinger, in 
Keys V. Williams, on the authority of which cases, I presume, 
the Master decided. The motion must be refused, with costs. 

(a) 1 Rose, 374. (6) 1 Bobs. 141. 

(c) 3 Y. & p., Ex. Cas., 62. (d) I Mcr. 7. 

(e) 1 Back, 527. 



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CHANCERY REPORTS. 205 



1860. 
RoUs. 



GRAY V. ROBINSON. ^186L^' 

Jon. 2a 

In Hilary Term 1844, Hugh Gray recovered a judgment in the A testator 

bequeathed 

Court of Queen's Bench against Meredith Thompson and Charles one-half of the 

interest of a 

Thompson, in the penal sum of £4400, conditioned to pay £2200 gam to A and 

with interest at £5^ per cent. By his will, bearing date the other half to C 

15th of August 1855, Hugh Gray bequeathed the sum secured ^^^ na^c^^ 

by the judgment, in the following terms: — "And as regards one the'*dMrthof 

other bond passed to me by my nephews Meredith Thompson and ^» ^» 9"^^ 

Charles Thompson, on which judgments have been entered, I will queathed the 

principal to 1&, 
and bequeath one- half of the interest due thereon at the time of u^d he ap- 

pointed resi- 
my death, and thereafter to grow due thereon, to my said nephews duar^ legatees. 

A died, and 
Meredith and Charles Thompton ; and the other half of the said then B, leav- 

ing C and D 
interest I give and bequeath to my nephews Patrick Gray and soryiving. 

John Gray during their natural life ; and, after the death of my ^*^» *hat 
^ ^ » ' •'no part of the 

said two nephews, then I bequeath said bond debt and the principal principal or 
^ r r 5ntej^ert went 

som thereby secured, to Hush Gray, son of my nephew John to E daring 
■^ . * \ ' "^ the life of 

Gray, and, if he die without lawful issue, then I give same to andD. 

Hugh Gray's next brother; and I appoint my said wife that * the ex- 

and Andrew Johnston, son of Doctor Johnston of Dromahare, my ?^*"* t^^th^' 

residuary legatees." Meredith Thompson had died in September residuary lega- 

' ° tees, was en- 

1850. The testator, Hugh Gray, died on the 13th of February titled to the 

interest of one- 
1856, and Charles Thompson died in September 1856. The pre- half daring the 

lives of C and 
seat suit was brought for the administration of the assets of Hugh D. 

Gray ; and a question arose before the Master as to the interest Statement, 
on the moiety of the said judgment debt bequeathed to Charles and 
Meredith Thompson, from the death of Charles Thompson until the 
death of the survivor of the four nephews, when the entire principal > 
was bequeathed to Hugh Gray. The Master, by his order, which 
is stated at length in his Honor's judgment, decided that the residu- 
ary legatees were entitled to the interest during that period. Cecilia 
Thompson, the personal representative of Charles Thompson, moved, 



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206 



CHANCERY REPORTS. 



1860. 
RolU. 

GBAT 

9. 

BOBinSON. 

Stateiment. 



by way of appeal from the Master's order, that it might be varied, 
by declaring her entitled to a moiety of the interest of the judgment 
debt which should accrue during the lives of Patrick Gray and John 
Gray, and the interest due since the death of Charles Thompson. 
A notice of appeal was also served on behalf of Hugh Gray 
and John Gray junior, the sons of John Gray, claiming a moiety 
of the judgment debt, and interest on such moiety from the death 
of the said Charles Thompson. 



Argument. Mr. BrewHer and Mr. Incej for Cecilia Thompson, argued that 

there was a complete gift of the principal and interest, and that no 
intestacy as to any portion of it was contemplated by the testator. 
There was no gift by implication of the interest of the Thompsons' 
moiety to John Gray or Hugh Gray. The true construction of the 
will was, that the interest of that moiety was bequeathed indefinitely, 
or during the lives of the four nephews of the testator, and the life of 
the survivor of them. They cited Jonei v. Randall (a) ; Townhf 
V. Bolton (6) ; Pearce v. Edmeades (c) ; Bignold v. Giles {d). 

Mr. J. M^Mahon^ for John Gray jun. and Hugh Gray, argued that 
the will should be construed distributively to bequeath the sum to 
the Thompsons, and, on the death of the survivor of them, that 
moiety, with principal and interest, was to go over: Kay v. 
Kay (e) ; Drew v. Kellick (f) ; Willie v. Douglas (g) ; Lainson v. 
Lainson (h) ; Swan v. Holmes (t). 

Mr. ChaHerton and Mr. Levinge^ in support of the order, cited 
Swan V. Holmes (k) ; Bignold v. Giles (/) ; LiU ▼. Lill (m) ; 
M^Dermot v. Wallace (n) ; Windham v. Windham (o) ; Heath v. 
Perry (jpi). 

(a) Jac. & W. 100. (A) I M. & E. 148. 

(c) 3 Y. A C, B. C, 246. (d) 4 Dr. 843. 

(e) 4 De G., M. & G. 73. (jQ 1 De G. ft Sm. 266. 

(g) 10 Beav. 47. (h) 5 De G., M. & G. 574. 

(0 19 Beav. 471. (A) 19 Beav. 476. 

(0 Uin supra. (m) 23 Bear. 446. 

(n) 5 Beav, 142. (o) 3 B. C. C. 57. 

(p) 3 Atk. 101/ 



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CHANCERY REPORTS. . 207 

The Masteb of thb Rolls. 1861. 

BolU. 
A motion has been made in this case, on behalf of Cecilia Thomp- ' , ' 

QRAY 

SOD, by way of appeal from the order of J. J. Murphy, Esq., the Mas- ^^ 

ter in this matter, bearing date the 4th of February, and filed the 26th bobinsow. 
of June 1860. The notice of motion seeks that the said order may jan, 28. 
be set aside or varied, so far as it declares that Andrew C Johnston, " y™«»*« 
the residuary legatee in the will of Hugh Gray, is, during the lives 
of the petitioners, Patrick Gray and John Gray the elder, and the 
life of the survivor of them, entitled to a moiety of the interest on 
the judgment in the petition mentioned, obtained by the testator, 
Hugh Gray, against Meredith Thompson and Charles Thompson, 
and the arrears of the moiety of the interest which accrued on the 
said judgment, since the death of Charles Thompson ; and the said 
notice seelcs that it should be declared that the said Cecilia Thomp- 
son, as personal representative of the said Charles Thompson, is, 
according to the true construction of the said will, entitled, daring 
the lives of the said Patrick Gray and John Gray the elder, and 
the life of the survivor of them, to the said moiety of the interest to 
accrue on the said judgment debt, and the arrears of said moiety 
which have accrued since the death of the said Charles Thompson. 
Another notice of motion, by way of appeal from the said order, has 
been served on the part of the minor petitioners, Hugh Gray and 
John Gray the younger, seeking to set aside the declaration in the 
Master^s order, which I have already stated, and that, in lieu of said 
declaration, it may be declared that the petitioner Hugh Gray, 
upon the death of the said Charles Thompson, became absolutely 
entitled in possession, with an executory devise over to his brother, 
the petitioner John Gray the younger, in the event of the said 
Hugh Gray dying l¥ithout issue, to the moiety of the judgment 
debt, together with the interest on the said moiety of the said judg- 
ment, which accrued since the death of the said Charles Thompson. 
It appears to me that this latter notice is untenable, for th^ reasons 
I shall hereinafter state. The question in the case, therefore, is, 
whether the motion of Cecilia Thompson is well founded ? and that 
depends on the construction to be put on the will of Hugh Gray, 
deceased, which bears date the 15th of August 1855. 



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CHANCERY REPORTS. 



1861. 
Rolls. 



The Master's order declares that Hugh Graj, the testator, was 
in his lifetime^ and at the time of his decease, entitled, amongst 

OSA.T ' 

^^ Other personal property, to a certain judgment obtained bj the 

ROBINSON, said testator Hugh Gray, against one Meredith Thompson and 
Judgment, ^°® Charles Thompson, in the Court of Queen's Bench, in 
Hilary Term 1844, in the penalty of £4400, conditioned to pay 
£2200, with interest at £5^ per cent, per annum. The order 
further declares, that the testator Hugh Gray died on the Idth 
of February 1856, and that probate of his will was granted to the 
respondents, Roger D. Robinson and the Rev. John Hamilton. 
That Meredith Thompson, in the will named, died in September 
1850, in the testator's lifetime, and Charles Thompson died in 
September 1856, after the death of the testator; and the order then 
declares that, in the said events, and according to the true construe* 
tion of the said will, the petitioners Patrick Gray and John Gray, 
the two nephews of the testator, are, under and by virtue of the 
bequest in the said will, " entitled, during their natural lives, to a 
moiety of the interest due, and to accrue due, on foot of the 
said judgment debt for £2200 ; and that, after the death of the 
said Patrick Gray and John Gray, the said Hugh Gray, son 
of the said John Gray, or, in the event of the said Hugh Gray 
dying without leaving lawful issue at the time of his death, his next 
brother, the petitioner John Gray, will be absolutely entitled to the 
said judgment debt, and the principal sum of £2200 thereby secured; 
and it was, by the said order, further adjudged and declared that 
Cecilia Thompson, the personal representative of the said Charles 
Thompson, is entitled to a moiety of the arrear of interest upon 
said judgment due at the time of the death of the said testator Hugh 
Gray ; and also to a moiety of the said interest which accrued due 
from the death of the said testator Hugh Gray, up to the time of 
the death of the said Charles Thompson ; and it is thereby fur- 
ther declared, that Andrew C. Johnston, the residuary legatee of 
said testator, is, during the natural lives of the petitioners Patrick 
Gray and .John Gray, and of the survivor of them, entitled to the 
said moiety of the interest to accrue on the said judgment debt, 
and to the arrears of the moiety of the interest which have accrued 
due since the death of the said Charles Thompson. The testator, 



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CHANCERY REPORTS. 



209 



Hagh Graj, deceased, bj his will, bequeathed a certain bond therein 
mentioned, to his wife ; and no question arises upon that bequest. 
The clause on which the question arises is as follows : — " And as 
regards one other bond, passed to me by my nephews Meredith 
Thompson and Charles Thompson, on which judgments have been 
entered, I will and bequeath one-half of the interest due thereon, at 
the time of my death, and thereafter to grow due thereon, to my 
said nephews Meredith Thompson and Charles Thompson ; and the 
other half of the said interest I bequeath to my nephews Patrick 
Gray and John Gray, during their natural life ;* and after the death 
of my said four nephews, then I bequeath said bond debt, and the 
principal sum thereby secured, to Hugh Gray, son of my nephew 
John Gray ; and if he die without lawful issue, then I give same 
to Hugh Gray's next brother." After several other devises and 
bequests, there is the following devise : — '* And I appoint my said 
wife and Andrew Johnston, son of Doctor Johnston, formerly of 
Dromahare, my residuary legatees.'' 

It has not been stated, during the argument, whether the testa- 
tor's wife is dead ; but I presume, from the declaration in the Mas- 
ter's order in favour of Andrew Johnston, in the order called 
Andrew C. Johnston, that the testator's wife died in his lifetime ; 
and no question has been raised or argued as to whether, if the 
residuary legatees are entitled, that Andrew C. Johnston, one of such 
residuary legatees, is, under the events which have happened, enti- 
tled. It is not necessary, from the view I take of the case, to inquire 
into the facts, or decide that question. With respect to the notice of 
appeal served on the part of the minors, Hugh Gray and John Gray 
the younger, it is, in my opinion, unsustainable, as the bequest of 
the principal of the bond and judgment to Hugh Gray, and, if he 
should die without lawful issue, to his next brother, the said John 
Gray the younger, was to take effect after the death of the testator's 
four nephews, in the will named — and two of the said nephews are 
still living — and it is clear that if the will is to be construed accord- 
ing to its plain language, that bequest has not taken effect, either in 



1861. 

RolU. 

«_ ^^ -* 

GRAY 

V. 

ROBINSON. 

Judgment. 



Sic. 



vol*. 11. 



27 



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Judgment. 



210 CHANCERY REPORTS. 

1861. the whole or in part. That motion will be, therefore, refused with 
RoOs. • 

V— ->, — ^ costs. 

^*^^ The testator's nephews Patrick Gray and John Gray the elder do 

ROBINSON, npt allege that they are entitled by implication to the half of the in- . 
terest on the said judgment bequeathed to Meredith Thompson and 
Charles Thompson, both of whom are dead, Meredith Thompson 
having died in the testator's lifetime, and Charles Thompson having 
survived the testator ; and, therefore, the question is, whether the 
said half of the interest on the said judgment, bequeathed to Mere- 
dith Thompson and Charles Thompson, deceased, is now payable to 
the appellant Cecilia Thompson, as the personal representative of 
Charles Thompson, during the lifetime of Patrick Gray and John 
Gray the elder, the other nephews of the testator? or whether the 
saie half of the interest is to be considered as having lapsed ? and 
whether same is payable, as the Master has decided, to the residuary 
legatee, during the lifetime of Patrick Gray and John Gray the 
elder ? 

There are only three constructions of which the clause in ques- 
tion is capable ; and in considering what is the true construction 
with respect to the interest on the judgment, and to whom payable, 
it is perfectly clear, in my opinion, that the principal was not payable 
under the clause bequeathing the principal, until the death of all 
the four nephews of the testator, viz., Meredith Thompson, Charles 
Thompson, Patrick Gray and John Gray. There can be but little 
doubt that the testator intended to dispose of the entire interest on 
the judgment until the principal became payable ; and that when he 
bequeathed half of the interest to two of his nephews, and the other 
half of the interest to the other two nephews, he intended to dispose 
of the whole interest until the principal was payable, and did not 
intend, as the Master has held, that there should be an intestacy as 
to half of the interest. It is admitted, by all the Counsel,.that there 
was no bequest by implication, to Patrick and John Gray, of the 
interest bequeathed to the Thompsons, who are dead ; and Patrick 
and John Gray make no claim ; and if they have no claim, the 
question is, what is the effect of the clause? Patrick and John 
Gray making no claim, there are only three possible constructions 



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CHANCERY REPORTS. 211 

tQ be pot on the daiise. The clause in question, leaving out what 1861- 
does not affect the construction, is in these words : — " I give and 



bequeath one-half of the interest due and to grow due on the ^^ 

judgment, to my nephews Meredith Thompson and Charles Thomp- bobxhsoii. 
son ; and the other half of the said interest I give and bequeath to judymetu, 
mj nephews Patrick Gray and John Gray, ' during their natural 
life.'" 

The Master has decided that the words '' during their natural 
life ** are to be inserted by construction after the bequest to the 
Thompsons, as well as after the bequest to the Gi^ys ; and that 
you are to read the bequest of the one-half of the interest to the 
Thompsons as a bequest of the said one-half of the interest to them 
'* during their natural life ; " and that, as they are both dead, the 
residuary legatee must be entitled until the principal of the judg- 
ment is payable, t. e., until the death of the remaining nephews of 
the testator, Patrick and John Ghray. The objection to that con- 
struction is, that it requires the insertion of words in the clause 
contrary to the principle of construction decided in the House of 
Lords, in Gray v. Pears&n (a). 

The next construction which may be put on the clause (which is 
one of those relied on by the appellant) is, that if you do not insert 
the words "during their natural life," which the Master has, by 
construction, inserted after the bequest to the Thompsons, there was 
an indefinite bequest of the one-half of the interest on the judgmeqt 
to them, until the principal of the jud^ent was payable, t. e., until 
the death of Patrick and John Gray; and in such case it is said, on 
the authority of Bignold v. GiUt (6), that the one-half of the said 
interest bequeathed to the Thompsons is payable to Cecilia Thomp- 
s<m, as the personal representative of Charies Thompson, who sur- 
vived Meredith Thompson, during the lires of Patrick and John 
Gray. 

The third construction which the clause is capable of, and which 
has been also relied on by the appellant's Counsel, is, that the words 
at the end of the clause in question, " during their natural life," 
which, of course, means " during their natural lives " (the sense in 

(a) 6 H. of L. Caa. 61. (*) 4'Drew. 343. 



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212 CHANCERY REPORTS. 

1861. which the words are obviously used in another part of the will), 
v^-v^-^ override the whole of the clause ; and that those words, according 
to their grammatical and natural construction, are to be read '^ during 
ROBINSON, the natural lives of the said Meredith Thompson, Charles Thomp- 
Judgment, ^^ Patrick Gray and John Gray ; " and if so, that the effect of the 
clause is to bequeath one-half of the interest to Meredith Thompson 
and Charles Thompson, daring their lives and the lives of Patrick 
Gray and John Gray ; and the other one-half of the interest to 
Patrick Gray and John Gray, daring their lives, and daring the 
lives of Meredith Thompson and Charles Thompson. The effect 
of that construction, which appears to be the most natural construc- 
tion of the language of the clause, is, that the whole of the interest 
of the judgment was disposed of until the principal of the judgment 
became payable under the bequest of such principal ; and it is not 
at all probable, having regard to the grammatical construction of 
the clause, that the testator intended to leave a portion of the inter- 
est undisposed of before the principal was payable. If thia be the 
true construction of the clause, which I think it is, Cecilia Thomp- 
son is entitled to the interest which she claims. If the construction 
which I have secondly stated be the true construction, she is 
equally entitled*. 

I have not beea able, after a careful consideration of the will, to 
come to the conclusion which the Master has, that you are to insert 
the words *' during their natural life," after the bequest to the 
Thompsons, which leads to an intestacy as to part of the interest ; 
and, unless you insert those words, the Master was mistaken. I 
think the best way is to insert no words, but to construe the 
words as they stand in the will ; and if that coarse be adopted, in 
accordance with the principle laid down in Grd^ v. Pearson^ the 
construction to be put on the clause is that either secondly or thirdly 
before stated ; and in either case the appellant is entitled. I shall 
delare her rights accordingly. 



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CHANCERY REPORTS. 213 



1860. 
RolU, 



WATSON V. FITZPATRICK. 



BROWNE V. FITZPATRICK. 



BROWNE V. COOTE. 



Nov. 20. 



This was a motion bj way of appeal from an order of Master Ljle, Whero there 

made in these matters. The order and the nature of the suits, brances prior 

80 far as they are material, are faUy stated in his Honor's judgment tionor'ha^ng 

The question on the motion was shortly as follows : — Certain lands of^tS^^Tis 

were sold in the second matter. Mary Browne, the petitioner in ^^^ ^ ^ 

that matter, and Elizabeth Watson, who was a respondent in that ^^ ^P Pi^ 
' *^ dnce of real 

matter, and petitioner in the first matter, were salvage creditors ^te, in the 
"^ " 7 -Ts g^ instance, 

in equal priority. The Master, in allocating the funds, directed and in priori^ 

to the demands 

the costs of Mary Browne to be paid in the first instance, and and the costs 

._ ,,..,, ;« « *, »* , of creditors in 

the residue to be divided rateably between Mary Browne and eanal priority 

Elizabeth Watson. '"*VT' 

Oonium(lJ>c. 
and W.) ob- 
Mr. P. W. Walihy on behalf of Elizabeth Watson, moved that the served on. 

Master's order be varied ; and that, in lieu thereof, the sum due Argumau. 

to Mary Browne for principal, interest and costs, and the sum due 

to Elizabeth Watson for principal, interest and costs, should be 

paid rateably. He contended that the petitioner was only entitled 

to his costs according to his priority, on the authority of Taylor v. 

Ocrman (a) ; Nelson v. Brady (b) ; Oray v. Crawford (e) ; Smyth 

▼. Murphy (d), 

Mr. D. Sherlock and Mr. Beyiagh^ in support of the Master's 

(a) 1 Dr. & W. 235 a. 
(6) 2 Dr. & War. 143; S. C, 4 Jr. £q. Bep. 369. 
(c) 1 Jr. £q. Bep. 276. (<0 10 Ir. Chan. Bep. 42. 



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214 CHANCBBY B£PQBTS. 

1860. order, cited Wright v. Keify (a) ; Wedgwood v. Adamt (b) ; Keify 
.J^ y.Kellgic). 

WATSON 
V. 

FiTzpATtacK. ^j^^ Master of the Rolls. 
Judgment. xhe petition in the second matter, of Browne v. Piizpairiek and 

oihersy was filed to raise the amount of a salvage claim due to the 
said petitioner in respect of money advanced by the petitioner 
to preserve from eviction the interest in certain houses in Lower 
Mount-street The petition was referred to A. Lyle, Esq., the 
Master in the cause, under the 15th section of the stat^te. The 
petitions in the other matters were also referred to the Master, 
under the same section. By a decretal order made in the second 
matter of Browne v. FUzpatrick and othert^ by the Master, dated 
the 31st of December 1856, it was declared that there was a sum^f 
£105. 12s. due to said petitioner, in respect of such salvage advances, 
and that said sum and interest were well charged on the estate 
of the respondents John Henry Fitzpatrick and Maria O'Farrell 
in the said houses ; and it was thereby further ordered, that the 
said sum and interest should be paid to the said petitioner within 
three months, or, in default thereof, that the interest of the said 
respondents in the said houses should be sold for the payment 
of the petitioner's demand, and the costs of the suit, and the 
demands of any other incumbrancers as should come in and prove 
their demands; and the said petitioner was directed to insert 
advertisements for all parties having charges or incumbrances 
to come in and prove their demands. The said houses were 
sold^ and Elizabeth Watson, the petitioner in the first matter, 
and one of the respondents in the second matter, having proved 
a demand in the second matter, of Browne v. FUzpfUriek and 
others^ in respect of a sum paid for the redemption of the said 
houses, the Master, by an order made in the said second matter, 
dated the 31st of October 1869, declared that the said Elizabeth 
Watson was entitled to the sum of £215. 5s. Id., in respect of 
the sum so paid for redemption ; and said sum was, by the 

(a) 23 Beay. 463. (6) 8 Beav. 103. 

(c) 1 Ir. £q. Bep. 317. 



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CHANCERY EEPOETS. 215 

said order, declared a charge on the said houses and premises, 1860. 

JtolU. 
together with interest ; and she was also declared entitled to the ^« y ' 

WATSON 

costs of the cause petition wherein she, the said Elizabeth Watson, v. 

was petitioner, and the said John Henry Fitzpatrick and others 

were respondents, '' along with her said demand ;'* and Elizabeth *'*''^"'^ • 

Watson was directed by the said order to make it up at her own 

expense; and that the petitioner Mary Browne should have her 

costs of opponng the charge of Elizabeth Watson, as costs in the 

matter. An order was made, entitled in the first matter, of EUza- 

betk WaUan v. John Henry FUzpatriek and others^ and in the 

said second matter, and in a certain sitipplemental matter of Browne 

V. Coote and others^ bearing date the 18th of April 1860, whereby, 

after directing the Accoontant^Greneral, out of a sum of £500 

standing to the credit of the second and third matters, to draw 

in favour of one Denis Hartley for £134. 4s. 6d. (upon which part 

of the order no question arises) ; and it was further ordered that the 

Aocountant-General should, out of the sum of £365. 158. 6d. (the 

residue of the said sum of £500), draw on the Bank of Ireland, 

in favour of the solicitor for the petitioner Mary Browne, for £232. 

17s. Ud. for the taxed costs of Mary Browne in the three matters, 

and for the sunr of £69* 10s. 4d., the certified post costs of the 

Bsdd petitioner Mary Browne, said sums making together £802. 

8s. 3d. ; and it ^as further ordered, that the Accountant-Grenend 

should draw on the Bank of Ireland for the sum of £63. 7s. 3d. 

(being the residue of the said sum of £500), in favour of the said 

Mary Browne and Elizabeth Watson, rateably In proportion to 

the respective amounts of principal and interest due to the peti- 

ti<mer Mary Browne, and principal, interest and costs due to the 

petitioner Elizabeth Watson; that is to say, in favour of Mary 

Browne for the sum of £19* Os. 7d., and in favour of the petitioner 

Elizabeth Watson for the sum of £44. 6s. 8d. The Master has 

not expressly found the priorities of the said Mary Browne and 

the said Elizabeth Watson; but it appears, from the latter part 

of the said order of the 18th of April 1860, that it was assumed they 

Atood in equal priority, as the residue, after payment of the costs 

in the said order mentioned, was to be paid proportionally between 

them. I inquired from Counsel on what ground the Master held 



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216 CHANCERY EEPOETS. 

I860. that the two demands stood in equal priority ; and I was informed 
RoUm. 
< , — ^ that, in consequence of some facts and letters not brought under 

WATSON 

«. my notice, it was agreed between Counsel on each side that the 

YITZPATBICK* 

demands should be taken to be in equal priority. The question, 

^^^* therefore, is, whether, as the two incumbrances are to be considered 
as of equal priority, the Master was right in holding that Mary 
Browne, who had the carriage of the proceedings, is entitled to have 
her costs paid out of the fund in the first instance ? It is the settled 
practice of the Court, that a plaintiff or petitioner in a suit for the 
sale of real estate only gets the costs of the suit in the same priority 
with his demand, except such costs as have been incurred for the 
benefit of the parties in the cause, such, for example, as the 
making out of title to real estate to be sold: Peyton v. M^Der- 
moii (a) ; Nelton v. Brady (&)• I have inspected the Registrar's 
book in Taylor v. Gorman^ and I do not think that that case is 
correctly reported. I have not been referred to any case in which 
the question hab arisen as to the costs of the suit, where the plain- 
tiff orpetitioner stands in equal priority with another incumbrancer. 
The rule established in Peyton v. 3PDermoit and Nelson v. Brady 
was, I apprehend, adopted to prevent the very objectionable practice 
of filing bills on the part of a puisne incumbrancer, for the sole 
purpose of realising costs. The principle of allowing a petitioner 
under the Sheriffs Act, who was a puisne incumbrancer, to be 
paid his costs, in the first instance, out of the rents received, worked 
so badly, it being the practice for Irish usurers, whose* names 
are so well known in this Court, to purchase up, at a very trifling 
sum, puisne judgments, which it was known the funds would never 
reach, for the sole purpose of realising costs, that the Legislature 
interfered, the matter having been, with other notorious abuses 
of the Court of Chancery in Ireland then existing, brought under 
the notice of a Committee of the House of Commons. I believe 
that the object of establishing the rule of practice in causes, 
as it is laid down in Peyton v. M'Dermott and Nelson v. 
Brady, and other cases, was to prevent the great abuse conse* 
quent on allowing a plaintiff to have his costs in the first instance, 

(a) 1 Br. ft Wal. 234. (6) 2 Dr. ft War. 143. 



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CHANCERY REPORTS. ^ 217 

although he knew the funds could not reach him. That prin- I860. 

RolU. 
ciple, however, is not applicable where two incumbrancers stand ^- — .^— ^ 

WATBOM 

in equal priority, and one of them files a bill, or a cause petition, v. 

FITSPATBXOK. 

for the sale of the real estate, the produce of which is to be 

applied to pay the demands of both incumbrancers. In the absence Judgment. 
of any decision on the subject, I should not feel justified in revers- 
ing Master Lyle's decision on a doubtful question. There being no 
rule of practice on the subject, I apprehend the Master was entitled to 
exercise his discretion as to the costs ; and, if he h^d any discretion, 
the appellant has no right to appeal from a decision as to costs. 

In the absence of any established practice in the Court of Chancery, 
as to the priority of the costs of the suit, where a plaintiff or peti- 
tioner in a suit for the sale of real estate, or for the appointment 
of a receiver, stands in equal priority with another incumbrancer, I 
thought it right to apply to Mr. Carey, Secretary of the Landed 
Estates Court, as to the practice in that Court ; and he has been so 
good as to send me the following statement in writing: — ^''The 
practice observed by the Judges of the Latided Estates Court, with 
reference to the costs of proceedings, is, to allow such costs in the 
tame priority as the petitioner's demand, except in cases where, 
under the circumstances, the Judge makes an order specially de- 
claring the petitioner entitled to his costs in any earlier priority. 
In cases of incumbrances of equal priority, the Court would allow 
the costs of the petitioner (being one of such incumbrancers), in 
IMiority to both. I have mentioned the subject to Judge Longfield, 
and he says that he recollects having had occasion to consider the 
question; and he found that the above course was consistent with 
the terms of some Chancery decrees; but he ornnot now parti- 
eularly refer to them.** 

I am not aware of the Chancery decrees referred to by Judge 
Longfield ; but I concur in the view adopted by the Landed Estatea 
Court and by Master Lyle ; and, at all events, I do not feel justified 
in reversing Master Lyle's order on a question of costs, unless there 
was a clear rule of practice at variance with his decision. I am, 
therefore, of opinion that the motion must be refused, but without 
costs. A question might, perhaps, have been raised, upon which 
VOL. 11. 28 



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218 CHANCERY REPORTS. 

1860. I offer no opinicHi, as it has not been argued, that Elizabeth Watson 
JRoUs, 
y. — . ' should (as well as Mary Browne) have been paid her costs out of the 

p. fund before the balance was rateablj distributed. 

rZTZPATKICK. 

Judgmmt. 



i^«y30. GRAY V. GRAY. 

June 2. 
Abo. 3. 

A testator be- This was a suit for the administration of the estate of John Gray* 
qneathedtohis ^ 

two sons all The principal question in the case was, whether a trust was created 

real and '^r- ^7 ^^^ "^^y ^^ favour of his children, and which of them? Master 

i^d to hold the ^i^>o^^ ^ whom the matter was referred, under the 15th section of 

SSt ^ute ^® ^^^^ ^^ Chancery (Ireland) Regulation Act 1860, by his 

P^^^l^^^^. decretal order, declared that, having regard to the statements in 

to be his will the petition respecting the testator's intention, and to the expres- 

ihat his sons sions in the will, a trust had been created in favour of the child- 
should, at their 

discretion, and ren other than the two sons, the devisees. The petitioner, one 
according to 

their own of the sons, appealed from that- declaration. 
Jadgmenty 
allocate to the 

of Ids^^i^ily, ^^* Brewster and Mr. Latalets, for the petitioner, contended that 

^U^lwottS ^^ *""* ^^ created by the will. The direction of the testator was 

^OTd^ f^ neither imperative nor precatory : Wood v. Cox (a) ; the subject 

Mid F^®^ of the alleged trust was uncertain, and the objects of it were unoer* 

the same more tain: WiUianu v. Williams (b) ; Webb v. Wools (e) ; Knioht v. 

or ^ fff^, as to 

them shoold Knight (d) -, Wheeler v. Smith (e) ; Biggs v. Ward (f) ; Meredith 

•eem fit and 

soitable; and ▼• Heneage(g); SugdefCs Law of Property ^ p. 389; Pinekard^s 

he appointed 

his said sons 

his ezecotora. — HeJd^ coupling the will with an admission in the petition by the 

aons, of the testator's intention, that a trost had been created, and that the sons were 

trostees for the other children of the testator as to the entire property of the testator, 

both real and peiKmaL 

Ca) 2 M. & C. 648. (6) 1 Sim., N. 8., S5S. 

(e) 2 Sim., N. S., 267. (<0 3 Beay. 14a 

(«) 6 Jar., N. S., 62. (fj I Hare, 445. 

(S) 1 Sim. 556. 



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CHANCERY REPORTS. 



219 



Trust (a) ; M^Auley y. Clarendon {b). The trust was at most a par- 
tial one, as to such sum as the sons, in their discretion, should choose, 
and as to the residue the sons were beneficially interested : Wood v. 
Cox (e) ; Dawson v. Clarke (d), 

Mr. W, Bourke and Mr. FP. R, C Smithy for one of the daugh- 
ters of the testator, contended that there was a trust on the face 
of the will itself ; but if the trust did not sufficiently appear on the 
face of the will itself, it was plain, by coupling it with the state- 
ment in the petition, by which it appeared that the sons were to 
hold on a secret trust : Russell y, Jackson (e) ; Briggs v. Penny (f) ; 
Walgrave v. Tebbs {g) ; Bernard v. MinshtUl (h). 

Mr. Lloyd and Mr. Coffey^ for Moses Wilson Gray, one of the 
trustees, declined to take any part of the property to himself^ or to 
take any part in the discussion, as he considered that his father 
intended to create a trust. 

Mr. G, O. Malley^ for Alexander Gray, another son. 



1860. 

RolU. 

y — -, » 

GRAY 

V. 
OBAT. 

ArgvmeiU. 



The Mastbb of the Rolls. 

In this case a motion has been made, on the part of the petitioner 
John Gray, by way of appeal from the decretal order of William 
Brooke, Esq., the Master in this matter, signed the 27th of April 
I860. The appeal is from the portion of the decretal order which 
is in these words :^—*' Having regard to the statements in the peti- 
tion in this matter set forth, respecting the said testator's intentions, 
and also to the expressions of the will itself, declare that a trust 
has been created, of which the trustees are the said petitioner John 
Gray and his brother Moses Wilson Gray, and the objects of the 
trusts are the other children of the said testator, and the subject- 



(a) 4Jiir.,K.S., 1041. 
(c) 2M.&Cr.684. 
(e) 10 Hare, 204. 
(p) 2 Jar., N. 8., 83. 



(6) 8 It. Chan. Bep. 121, 568. 
(d) 18Veg.254. 
r/)3M»N.&G,54a 
(A) I JohBft. 276. 



Nov. 9, 
Judgment. 



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220 CHANCERY REPORTS- 

I860. matter the entire property of the said testator, both real and per- 

Roth. 

sonal. 




It is sought, by the notice of motion, to set aside such declaration, 
** and that it may be declared that the petitioner and the respondent 
j^jTjJj^^ Moses Wilson Gray take the properties devised to them by the 
testator's will, unaffected by any trust, but with an absolute discre- 
tion and power in them to make such provision for the testator's 
children as they should think proper ; or, if the Court shall be of 
opinion that a trust was created, that it may be declared that all the 
children of the testator, including the petitioner and the respondent 
Moses Wilson Gray, are entitled to the benefit thereof; and that the 
said order may be reversed and varied accordingly." 

The will of the testator is short, and is in these words : — '* I, John 
Gray, of Claremorris, in the county of Mayo, being infirm of body, 
but of sound mind and judgment, do hereby will and bequeath unto 
my sons, Meses Wilson Gray, Esq., Barrister-at-law, and John 
Gray, Esq., M.D., of Dublin, all the property, real, personal or 
otherwise, and all the stock and furniture, and every the goods and 
chattels, of whatever nature and kind soever, of which I may be 
seised and possessed at the time of my decease, to have and to hold 
the same in the most absolute manner ; and I further will and hereby 
declare it to be my intention that the said Moses Wilson Gray and 
John Gray shall, at their discretion and according to their own 
judgment, allocate to the other members of my family, being my 
lawfully begotten children, such portions of the said property and 
goods, be the same more or less, as to them the said Moses Wilson 
Gray and John Gray shall seem fit and suitable; and I hereby 
appoint and nominate the said Moses Wilson Gray and the said 
John Gray as my executors; and I hereby make and publish this 
as my last will and testament, affixing thereto my hand and seal, 
the 27th of July 1652." The will was duly signed and attested, 
and probate thereof was granted to the petitioner John Gray, saving 
the right of -the other executor, Moses Wilson Gray. The testator 
died in 1866, and the petitioner took the opinion of Mr. Deasy, 
now the Atiomey''General^ shortly after, and the respondent 
took the opinion of Mr. Brewster in 1859. The opinion of 



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<3HANCERY REPORTS. 



221 



those gentlemen was unfavonrable to the petitioner, although they 
considered the question as one of great difficulty. I should be very 
slow to come to a conclusion at variance with the concurrent opinions 
of the Master, the AUomey^ General and Mr. Brewster ; but I must 
say that I concur substantially in their opinion. 

The petitioner, in the petition, states, '* That immediately after 
the interment of the testator, the petitioner caused his solicitor to 
prepare a case, to lay same before Counsel, for his advice and 
directions respecting said will and affairs ; and said case, to which, 
to avoid prolixity, petitioner begs leave to refer, stated as accurately 
and fully as petitioner's knowledge of said affairs enabled him to 
instruct said solicitor, all the facts and circumstances connected 
therewith, with which he was acquainted ; and also his views as to 
the manner and mode in which the trusts of said will should be 
executed, according to what petitioner understood and believed to 
be the wishes and intentions of the testator, more espeoiaUy with 
respect to testator's son George Gray." The petitioner, at the time 
of verifying the petition, indorsed the case and opinion, which was, 
in effect, by reference incorporated therewith; and the petition 
prays, amongst other things, that the *' trusts of the will may be 
carried into execution." 

The ease referred to by the petitioner in the petition, and incor- 
porated by reference therewith, states, amongst other things, that, 
^'In the month of July 1852, the testator was seized, and for some 
time confined, by a serious and an alarming illness. During this 
illness, and at a period when he was considered to be on the verge 
of death, he was visited by one of his sons. Dr. Gray, of Dublin 
(the petitioner), to whom he expressed his concern at not having, 
up to that time, made any will or settlement of his affairs. After 
some conversation on the subject, and speaking at once fully but 
generally as to how he would wish his property to be distributed 
amongst bis children, he directed Dr. Gray to draw his will, devis- 
ing and bequeathing all his property, of every kind whatsoever, to 
Mr. Wilson Gray (another of his sons), and Dr. Gray. It so hap- 
pened that Mr. Wilson Gray, in whom testator placed great confi- 
dence, was not, at the time, in Claremorris, or within reach of being 



1860. 
RoJh, 




Judgment* 



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222 



CHANCERY REPORTS. 



1860. 
Rolis. 

^ V ' 

ORAT 

r. 

ORAT. 

Judgment* 



consulted ; but he afterwards became fully acquainted with same, 
and it is believed was the custodee of it for some time. This 
devise he, testator, wished and directed to be absolute in its terms, 
so as to vest in Mr. Wilson Gray and Dr. Gray uncontrollable dis- 
cretion in the disposition and distribution of his property, trusting, 
however, to their probity, that they would dispose of it in consonance 
with what they knew to be his views and wishes in that respect. 
These views and these wishes he not only then, but after his 
recovery from that illness, expressed, and they may be thus con- 
veyed: — And, first, as to the female portion of his family. He 
considered, as indeed the fact was, that he had more than provided 
for his daughter Mrs. Margaret M'Cullagh, and that his other two 
daughters should get about £500 each, which contemplated, in the 
case of his daughter Mrs. Rutledge, a sum of £200 in addition to 
the £300 given to her on her marriage. As to his sons, he intended 
that there should be Secured for his eldest son George a life provi- 
sion, to be so guarded as to deprive him of all power of either 
disposing of it or incumbering it — a restriction absolutely necessary 
for the protection of the said George, who is of such character and 
habits as to render some such restriction necessary for his own per- 
sonal security. He was also understood to desire that the two sons 
in America, and his son Joseph, should get about £200 a-piece ; but 
it is to be observed that this last-named son, being rather of a wild 
and improvident turn, the testator was very anxious that great 
caution and circumspection should be used in his instance. In truth* 
it was perplexity as to how his wildness, and the weakness of 
Greorge, could be dealt with, that had prevented the testator from 
settling the details of his a£fairs, and that induced him to prefer the 
mode of placing the matter within the power, and, in the hands, of 
his two sons Mr. Wilson Gray and petitioner, in both of whom he 
placed implicit reliance. With respect to any surplus, it was to go 
equally between Mr. Wilson Gray and petitioner ; but it is very 
doubtful if there will be any surplus, and quite certain that, in anj 
event, it will be very trifling. As already mentioned, the testator 
recovered from the illness in the course of which he had made said 
will ; and although the will itself remained in his hands, from itm 



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CHANCERY REPORTS. 



223 



date ap to his death, he made no alteration or change ; and the fol« ' 
lowing indorsement, in testator's handwritings appears on it, viz., 
* The last will and testament of John Gray.' " 

The case then states the mode in which the petitioner proposed 
that the property of the testator should be distributed, under five 
heads, which would include an annuity of £60 a-year for one son, 
and sums amounting to £1300 or £1400, for other children ; and as 
to the surplus, the words of the case are, ** Sixthly ; the surplus, if any ^ 
in equal shares to Mr. Wilson Gray and Dr. Gray,'' the petitioner. 

Mr. Dtaay stated his opinion at length to the several queries ; 
and although he expressed a doubt on the question which now arises, 
his opinion was unfavourable to the claim now made by Dr. Gray, 
Mr. Deasy considering that Mr. Moses Wilson Gray and the peti- 
tioner took the property subject to a trust for distribution amongst 
the other members of the family. If the construction sought to be 
put on the will by the petitioner be well founded, he and Mr. Wil* 
son Gray, his co-trustee, have an interest directly opposed to their 
duty. If they have an unrestricted power to appropriate any sums, 
however small, between the other children, and that they are enti- 
tled to the surplus, the effect would be, that the trustees might take 
a surplus consisting of the principal part of the property. 

Mr. Lloyd appeared for the co-trustee, and makes no claim, con- 
sidering that he and the petitioner held the property on trust for 
the other members of the family. 

The first question is, whether any trust appears on the face of 
the will itself? It is contended, on the part of the petitioner, that 
the devise being to the petitioner and his co-trustee ** in the most 
absolute manner," there was no trust. I think that argument is 
met by the case of Bernard v. Minshull (a) ; in which a devise to a 
person *' absolutely" did not prevent his being considered a trustee, 
and excluded from any share of the property affected by the trust 
It is not, however, necessary, as it appears to me, to decide whether 
there was a trust on the face of the will, as the facts stated in the 
case laid before Counsel, which was drawn, up under the directions 
of the petitioner, and which case the petitioner incorporates by 

(a) I Johnf. 276. 



1860. 
RolU. 




Judgmtnt. 



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224 CHANCERY REPORTS. 

I860. reference in the petiticHi, establishes that there was a trust; and the 
trust is, in my opinion, binding on the petitioner and his co-trustee. 
The co-trustee admits that it is binding. ^' If an estate is suffered 
to descend, the owner being informed bj the heir that, if the estate 
Judgment^ is permitted to descend, he will make a provision for the mother, 
wife, or any other person, there is no doubt Equity would compel 
the heir to discover whether he did make such promise. So, if a 
father devises to the youngest son, who promises that, if the estate is 
. devised to him, he will pay £10,000 to the eldest son, Equity would 
compel the former to discover whether that passed in parol ; and if 
' he acknowledged it, even praying the benefit of the statute, he 
would be a trustee to the value of the £10,000." That was laid 
down by Lord Eldon, in Strickland v. Aldridge{a), Mr. Jar- 
man^ in his Treatise on Wills^ 2nd ed., vol. 1, p. 343, states, 
'* And it is clear that, in such a case, if the trust were denied by 
the heir or devisee, it might be proved aliunde^ 

In Lewen on Trusts, 3rd ed., p. 70, it is laid down, after refer- 
ring to Strickland v. Aldridge : — '' And so generally, if a testator 
devises an estate to A, the beneficial owner on the face of the will, 
but upon the understanding between the testator and A that the 
devisee will, as to a part, or even the entirety of the beneficial 
interest, hold upon any trust which is lawful in itself, in favour of 
B, the Court, at the instance of B, will affect the conscience of A, 
and decree him to execute the testator's intention." Many of the 
authorities in support of this proposition are referred to by Mr. 
Lewen ; and it is not necessary to go through them, as I apprehend 
there is no doubt on the subject. The last case in which, I believe, 
the law is so laid down is Russell v. Jackson {b). If this be so, I 
cannot understand how it can be contended that there was no under- 
standing between the testator and the petitioner, or that he and hia 
co-trustee could, consistently witH what is stated in the caaie drawn 
np for Counsel under the petitioner's directions, hold the property 
discharged of any trust. I am, therefore, of opinion that the first 
question raised by the notice of appeal, that the petitioner and his 
oo-trustee take the property unaffected by any trust, is unsostain- 

(a) 9 Ves. 519. (6) 10 Hare, 212. 



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able. It 18 to be observed that the petition prays that the trusts of 
the will may be carried into execution. 

The second question raised by the notice of appeal is that, if 
there was a trust, all the children of the testator, including the 
petitioner and the respondent, Moses Wilson Gray, are entitled to 
the benefit thereof. Now the notice of appeal does not define what 
the extent of the claim of the petitioner is. His co-trustee would 
noty as I understand, consent to any allocation of the property, 
except in accordance with the declared intentions of the testator ; 
and, if not, how is the property to be divided ? If it was divided in 
equal shares between all the children, including the petitioner and 
his co-trustee, this would, I apprehend, be at variance with the 
understanding which existed between the petitioner and the testator, 
as set out in the case. The case states that, " with respect to any 
surplus, it was to go equally between Mr. Wilson and Dr. Gray 
(the petitioner) ; but it is very doubtful whether there will be any 
surplus, and quite certain that in any event it will be very trifling;*' 
t. ^., that, after carrying out the intentions of the testator, which, I 
think, it is plain there was an understanding should be carried out, 
if the property was devised to Mr. Wilson Gray and the petitioner, 
it was doubtful whether there would be any surplus, and, if any, 
that it would be very trifling. If so, the division of the property 
between all the children, including the petitioner and his co-trus- 
tee, would be directly at variance with, the intention of the testator, 
as stated in the case. If the petitioner had sought that the 
Court should carry into eflect what the petitioner considered to 
be the understanding which existed between him and lib father, 
I could understand the petitioner alleging that there would be a 
surplus divisible between him and Moses' Wilson Gray ; but that 
is not the case made by the notice of appeal, or during the argu- 
ment. The case made by the notice of appeal, and during the 
argument, was, '* that tbe petitioner and the respondent, Moses Wil- 
son Gray, take the proportions devised to them by the testator's 
will, unafiected by any trust, but with an absolute discretion and 
power in them to make such provision for the testator's children as 
they should think proper ; " but that, if there was a trust, ** all the 
\ VOL. II. , 29 



1860. 
RolU. 




Judgment. 



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226 



CHANCERY REPORTS. 



1860. 
RoUs. 




Mgfuetu. 



children of the testator, including the petitioner and the respondent, 
Moses Wilson Gray, are entitled to the benefit thereof; ** that is, 
that, although there should be no surplus after carrying out the 
understanding between the testator and the petitioner, the petitioner 
was to take an equal share of the property with the other children. 
A decision to that effect would not carry into effect the trust, but 
would be opposed to it. There is, however, a legal difficulty in the 
way of the petitioner claiming half of the surplus, or any portion of 
the testator's property. In Brigg$ y. Penny (a), Lord Truro laid 
down as follows: — *'It is most important to observe that vagueness 
in the object will unquestionably furnish reason for holding that no 
trust was intended ; yet this may be countervailed by other consider- 
ations which show that a trust was intended, while, at the same 
time, such trust is not sufficiently certain and definite to be valid 
and effectual ; and it is not necessary, to exclude the legatee from a 
beneficial interest, that there should be a valid or effectual trust ; 
it is only necessary that it should clearly appear that a trust was 
intended. Now this is precisely the case with the present bequest. I 
agree with the Yice-Chancellor in interpreting ^ views and wishes ' 
to mean * designs and desires ; * and the very expression of confi- 
dence that Miss Penny would make a good use and dispose of the 
property in a manner in accordance with the testatrix' designs and 
desires or intentions appears to me to amount to a declaration that 
Miss Penny was to hold the property for that purpose ; or, in other 
words to the same import, upon trust. It seems to me to be tanta- 
mount to a bequest upon trust; and if so, that is sufficient to 
exclude Miss Penny firom taking the beneficial interest. Such views 
and wishes may. be left unexplained — such trust be left undeclared ; 
but still, in such case, it is clear a trust wad intended ; and that is 
sufficient to exclude the legatee from a beneficial interest. Once 
establish that a trust was intended, and the legatee cannot take 
beneficially. If a testator gives upon trust, though he never adds a 
syllable to denote the objects of that trust, or though he declares the 
trust in such a way as not to exhaust the property, or though he 
declares it imperfectly, or though the trusts are illegal, still, in all 

(a) 3 M. & G. 556, 557. 



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227 



these cases, as is well known, the legatee is excluded, and the next- 
of-kin take. Bat there is no peculiar effect in the word * trust ; ' 
other expressions may be equally indicative of a fiduciary interest, 
though not equally apt or clear.** In Russell v. Jackson (a), the 
Vice-chancellor stated : — ** It is clear that the devise was made to 
these defendants for the purpose of holding it upon trust ; and, being 
held by them upon trust, the result, as I conceive, is, that they 
cannot take beneficially, in any view of the case." Of course, if a 
testator shows an intention that a trustee should take beneficially, he 
may do so ; but, in the absence of such intention, a devise on trust 
excludes the trustee from claiming to take beneficially. In the case 
of Bernard v. MinshuU (6), Vice-chancellor Wood says : — •• Sup- 
pose that, by the precatory words in a will, the donee is requested 
to apply property, the amount of which is ascertained^ *for the 

benefit of ,* or ^ for the benefit of the person I have named in 

a paper that will be found in such a drawer,' and there is no such 
paper found, in either case there would be uncertainty enough as to 
the object ; and yet such a trust would be created as would effectu- 
ally exclude the donee from applying the property tO' his own use." 
Dawson v. Clarke (c) was referred to by the petitioner's Counsel; 
but that case has been overruled, as also the decision of Vice-Chan- 
cellor Bruce, in -Russell v. Clowes^ and of the Vice-Chancellor of 
England, in Mapp v. Eleoek. The cases on the point decided in 
Dawson v. Clarke are collected in Read v. Steadman(d), which 
is an important case on this subject. Assuming, however, that the 
Court could not in general carry into execution a trust where so 
complete a discretion was vested in the trustees as in the present 
case, as to the mode of distribution, yet in such case the Court, in 
the event of the trustees not concurring in the exercise of the dis- 
cretion vested in them, would divide the fund between the other 
children who were objects of the trust. The petition does not 
make the case that there was an intestacy as to the beneficial 
interest in the property devised on trust to the petitioner and 
Moses Wilson Gray, and that the petitioner is entitled, as one 



1860. 

Rolls. 




Judgment* 



(a) 10 Hare, 214. 
(c) 15 Ves. 409. 



(A) 1 John. 286, 287. 
(<0 26 Bear. 500. 



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CHANCERY REPORTS. 



1860. 
RoUs. 




Judgment, 



of the next-of-kin, to an equal share. The petition prays that 
the trusts of the will may be carried into execution. If the 
petitioner had by his petition contended that, in the event of the 
discretionary power not being exercised by the petitioner and his 
co-trustee, there would be' an intestacy, the answer to such a 
case would have been that, although where a discretionary power 
is given to trustees, the Court has in general no jurisdiction to 
control them in the exercise of that discretion, provided their 
conduct be bona fide^ and not influenced by improper motives, 
yet the Court will interfere where the discretion of the trustees 
is infected by misbehaviour, or they decline to undertake the duty 
of exercising their discretion. The cases on this subject are very 
numerous, and are collected in Mr. Lewin*$ treatise on the Law 
of Trusts^ 3rd ed., pp. 638 and 643. 

If the petitioner was to contend that the non-exercise of the dis- 
cretion vested in the trustees in this case was to create an intestacy 
as to the beneficial and equitable interest in the property of which the 
legal title was vested in them, I apprehend that a Court of Equity 
would not permit the petitioner to derive a benefit to arise from his not 
executing the trust reposed in him in conjunction with his co-trus- 
tee, and would not allow hin> to claim as one of the next-of-kin, 
on ai^ intestacy arising out of his own act. I think, therefore, 
the Master was justified in holding that the other children of the 
testator (exclusive of the trustees) are entitled to the entire pro- 
perty, the trusts not having been exercised. I sent in the order, 
shortly after 'the Court rose last Term, refusing the motion ; but 
I hav^ thought that the parties might wish to know the grounds 
of my decision. 



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CHANCERY REPORTS. 229 



1861. 
£. £. Court, 



JLHtirftri Htf^tntti^ Court. 

In the Matter of the Estate of 
WILHELMINA HAMMERSLT, Owtur and PetUianer. 

Jon. 17. 

Ths sabject of this case was a settlement made on the marriage a marriage 

of Richard Hammerslj and Wilhelmina Sadlier, and dated the 30th ^^^^old 

of April 1808. The facts of the case and the passages which were J^« ^ hoW 

the subject of criticism will be found at large in the judgment ^ ^e wid 

The question arose on objection to the draft schedule of.incum- ^. ^^ j^ 

hem and fu- 

brances. signs, from the 

perfection of 
these presents, 
for and duing 
Mr. Wairren (with him Mr. E, Jf. Kelly and Mr. Flanagan)^ the term of his 

in support of the schedule, cited Jomes\ y. Keamay (a) ; Morning- without im- 

ion V. Keane (6) ; Holliday v. Dorrton (c) ; Barron v. Barron (d) ; 5^,™*with^a 

power to lease, 
remainder to 

Mr. Hemphill, Mr. Roper and Mr. F. Whi$e, in support of ^^ ^^ 

objections to the schedule, cited White v. Anderson (e); Metealf f^^ from the 

decease of JLf 
to secore a 
jointure of £80 to B (A*s wife). TheD follows a covenant bj A, charging the jointure 
on after-acquired estate, with power of distress; ' and further, that said l^ds, after the 
decease of the survivor of A and B, in case there should be but one child of said 
marriage, to the use of such only child, and the heirs of his or her bodj lawfhllv 
issuing; and in case there should be more than one such child, then to such 
children in such shares and proportions as the said A shall bj deed or will 
appoint; and in default of such appointment, then to the use of all the children, 
as tenants in common, share and share alike." — H§ld, that the words '* and lus 
heirs " should be rejected, and that A takes a life estate. 

That the clause beginning^ '* and further ** is a limitation in contmuation of, and 
direct sequence upon, the limitations to trustees to preserve. 

Semble — That if that clause be a covenant to settle after-acquired property on the 
children, a Court of Equity would not mould the trusts in anj manner, as thej are 
fuUj declared. 

Semblg — That, assuming it to be such a covenant, after-acquired property, settled, 
irrespective of such covenant, by A on a child, must be brought into hotchpot, 

(a) 1 Dr. A W. 134. (6) 2 De. O. A Sm. (judgt.) 318. 

(c) 15 Beav. 480. 
id) 8 It. Chan. Rep. 366. («) 1 Ir. Chan. Rep. 419. 



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230 CHANCERY REPORTS. 

1861/ V. ArchbUhop of York (a) ; Moore v. Cleghom (b) ; Barlow y. 

C — l<v ' Osborne (c) ; BusheU y. Bushell (d) ; Prachey on Settlemenis, 

In re 
HAMMEBSLT P« ^24. 

Judgment, 

Haroreave, J. 

. . This case comes before me upon the objections of Mr. and Mrs. 

Sargint and of Mr. Smith to the draft schedule. The subject-matter 
of the objections is the surplus fund arising from the sale of the lands 
sold in this matter, after payment of the charges. The draft 
schedule proposes to deal with this fund according to certain appoint- 
ments made by Wilhelmina Hammerslj, under a power contained in 
her late husband's will, by which appointments she has divided 
the fund in unequal shares among certain of her children. The 
objectants contend that no such power of appointment exists, inas- 
much as they allege that this property is bound in Equity by the 
provisions of a certain deed of the 20tlrof April 1808, under which 
the children^ take the property equally, in default of any appoint- 
ment by Richard Hammersly himself, the deceased husband of 
the owner. 

These objections are resisted on these grounds: — ^first; that 
the property is not affected in the manner suggested by the deed 
of 1808. Secondly ; that even if it be so affected, the children 
are entitled under that deed to life estates only (a view which would 
partially defeat the objection of Mr. and Mrs. Sargint, and would 
totally defeat that of Mr. Smith) ; and that, thirdly, Sargint and wife 
have already obtained a provision from Richard Hammersly by a con- 
veyance of another estate, and that they must either be content with 
that provision, or bring it into hotchpot. 

The estates sold in this matter were acquired by Richard Ham- 
mersly after the execution of the deed of 1808, which was the 
settlement made on his marriage with Wilhelmina Hammersly ; and 
the first question is, whether that deed eontains a covenant by 
Richard Hammersly to settle all his after-acquired estates ? The 
question turns entirely on the construction of the deed, each claaae 

(a) 1 M. & Or. 556. (&) 10 Beav. 423. 

(c) 6 H. of L. Cas, 575, (rf) 1 Sch, & Let 90. 



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CHANCERY REPORTS. 231 

of which 18 conceired in technical langnage, but whose daiues are 1861. 
pot together in a singularly inartificial manner. Ito constmctiony > \ 
therefore, requires a close consideration of the whole deed taken hammbeslt 

together, and a critical examination of its several clauses and of 

their grammatical and logical connection inier $e. In construing 
such a deed, it is idle to speculate on the probable motives of the 
parties, or on the consequences flowing from any Articular construc- 
tion of the deed. The property which Richard Hammersly had at 
the time, and which was actually dealt with by the deed, consisted 
of leaseholds for lives only ; and it is suggested as improbable that 
the lady and her friends would becontent with a settlement of pro- 
perty of this temporary character; on the other hand, it is suggested 
to be at least as improbable that Richard Hammersly would bind 
himself to settle all his a(tei:-acquired estates indiscriminately, thus 
precluding himself from ever purchasing land, except for the pur- 
poses of the settlement, and rendering it impossible for him to 
provide for a future wife and his family by any future marriage. 
On this, I can only observe that there is no intrinsic absurdity in 
either of these two classes of settlement, and that it is simply the 
duty of the Court to ascertain which of the two was intended, by 
construing the deed and giving effect to its provisions according to 
the rules of the law. The deed is made between Richard Ham- 
mersly, of the first part, Richard Sadlier and his daughter Wilhel- 
mina (now Mrs. Hamn^ersly), of the second part, and Philip Corbett 
and William Sadlier, of the third part It recites the intended mar- 
riage ; it then recites, fuUy and in technical language, three leases 
for lives, of various townlands in the county of Tipperary, made to 
John Hammersly, and that Richard had become entitled to these 
lands, with a certain exception, under the will of his deceased father. 
The deed then witnesses that, in pursuance of the said marriage 
agreement (which must mean the recited agreement for the mar- 
riage), and in consideration of the marriage, and of the lady's fortune 
of £1000, and in order to make a provision for the said Wilhelmina, 
by way of jointure, and in lieu of dower, and also as a provision for 
the issue of the marriage, in manner thereinafter expressed, Riehard 
Hanunersly grants and assigns unto. Corbett and Sadlier, their heirs 
and assigns, all that and those the town and lands (describing them 



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232 CHANCERY REPORTS. 

1861. at lengtli) oomprised in the leases, to hold to them, their heirs and 
L. E. Court. 
r — ' assigns, for the lives in the leases, to such uses, upon snch trusts. 

In re 
HAMMBRSLY <^d to and fbr such intents and purposes, and under and subject 



Judffment. 



to suah provisoes, limitations and agreements as are thereinafter 
expi^essed and declared, of: and concerning same ; and, subject to the 
head-rents payable thereout,* to the use of the said Richard Ham- 
mersly, and his heirs and assigns, from the: perfection of these pre- 
sents, for and during the term of his natural life) without impeachment 
of waste, with a proviso and declaration authorising him, during his 
life, to make leases, so as not to diminish the existing profit-rent ; 
and after the determination of that estate, then to the use of Corbett 
and Sadlier, and their heirs, during the life of the said Richard Ham- 
merslj, upon trust to support and preserve the contingent uses and 
estates thereinafter limited firom being defeated and destroyed ; and 
immediately after the decease of the said Richard Hammersly, to the 
use of the said Wilhelmina Hammersly, to receive thereout the 
yearly sum or jointure of £80 sterling, by equal half-yeariy pay- 
ments, for the term of her natural life, with power to enter into said 
lands to distrain. The deed then proceeds in the fc^owing language: — 

** And the faid Richard Hammersly, in oonrideradon of the said intended mar- 
riage, and of the said sun of £1000, so secured, to be paid as aforesaid, the 
portion of the said Wilhelmina, hereinbefore mentioned, for himself, his heirs, 
executors and administrators, doth coyenant, promise and agree, to and with the 
said Philip Corbett and William Sadlier, their executors and administrators, that 
he the said Bichard Hammersly, by these presents, doth charge and incumber all 
and singular and erery the sereral and respective estates, towns, lands, holdings, 
tenements, hereditaments and premises, wheresoever situate, whereof the said 
Bichard Hammersly is now seised or possessed or entitled to, and which he shaU, 
at anytime hereafter, become seised, possessed of or entitled unto, to the payment 
of the jointure of £80 a-year, as aforesaid, to the said Wilhelmina, his intended 
wife, and with the like power of distress for recoveiy thereof as hereinbefore men- 
tioned. And further, that the said lands, after the decease of the sunrivor of them 
the said Bichard Hammersly and Wilhelmina Sadlier, in case there should be but 
one child of said intended marriage, to the use of such only child, and the heirs of 
his or her body lawfully issuing ; and, in case there should be more than one such 
diild, then to such children* in such shares and proportions as the said Richaid 
Hammersly shall, by deed or wiU, appoint ; and, in defirndt of such appointment, 
then to the use of all the children, as tenants in common, share and share alike ; 
and, if there should be no children, then to the right heirs of the said Bichard 
Hanmiersly, subject to the conditions aforesaid." 

The deed contains nothing further material to the issue. It com- 
mences then a new operative part, in the nature of a covenant and 



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CHANCERY REPORTS. 233 

agreement, settUng the wife's fortune of £1000, and closes with a 1861. 

, Zi» E, Court » 

covenant by Richard Hammenlj for further assurance, in general ' ^— — ^ 

/n- re 
terms, and nsual trustee clauses. The question is, whether the hammbkslt 

words, " and further, that said lands, after the decease of the sur- j^^^l^ZL^ 
viyor, in case there should be but one child, to the use of such only 
child, and the heirs of his or her body," &c., are to be read in conti- 
nuation of the limitation of uses, treating the previous words merely 
as a covenant by Richard Hammersly to give further security for 
the jointure out of all his other and after-acquired property, or 
whether they are a continuation of the covenant? In the former 
case, they apply only to the lands actually conveyed ; and, in the 
latter case, they apply to* all the settlor's estates, existing or future, 
and import a covenant to settle them on the issue. 

In the first plaee, and in support of the latter view, it is con- 
tended that the lands conveyed by the deed are not, in fact, thereby 
put in settlement at all, inasmuch as the first limitation gives the 
absolute interest to Richard Hammersly ; and that the words pur- 
porting to give him a life estate, and also the subsequent limitation 
to trustees, for his life, are void. I am unable to concur in that view. 
I can quite understand that, in construing a limitation to a man, 
and his hdrs, for his life, the Court would prefer to reject the words 
"for his life,*' rather than the words ''and his heirs;'' but where 
this limitation b followed up by remainders, to take effect on his 
decease, and is accompanied by It power of leasing, it appears to me 
that the Court ought to support these limitations, by rejecting the 
worda " i^nd his heirs," which lare thus cleariy shown to be intro- 
duced by mistalw. Where the Court must reject either the words 
limiting the fee, ^r the words Hmiting a life estate, it will reject the 
former, if the other limitations dearly show that a life estate was 
intended. If this be so, we have a limitation to Richard Hammersly 
for life, with a leasing powor, then a limitation to trustees, for 
Ridiard's' life, to support the contingent remainders thereinafter 
limited, and then a legal jointure, with power of distress. We arei 
then led to the inquiry, where are these contingent remainders, for 
the support of which this provision is inserted, to be found ? The 
only part of the deed in which they can be found is in the clause 
now «nder consideration. It is indisputable that, if these legal con- 



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234 CHANCERY REPORTS. 

186L tingent remainders are not the limitationB to the children, contained 

X. E. Court, . , , , ^ . , . , . , , 

'— -> m that clause, they have no existence ; and construing this deed so 

In re 

HAMMBB8LT &s ^ &^^ eShct to all its clauseSi and so as to make one part of it 

_ . consistent wiUi another, I cannot do otherwise than hold that the 

Juagwtent* 

limitation of uses to children, which I have read, are the very con- 
tingent uses and estates which are to be supported and preserved by 
the limitations to trustees during Richard Hammersly's life. 

The question still remains, whether these words may not perform 
the double ifunction of limiting the legal continent remainders in 
the' estate dealt with, and, at the same time, declaring the uses to 
which the other and after-acquired property is to be conveyed ? I 
am disposed to think that this view is not grammatically or logically 
possible. In order that they may perform the latter function, it is 
essential that they must be read and oonati^ed as part of the cove- 
nant of Richaid Hammersly with Corbett and Sadleir ; and they 
would' thus h6 completely separated, in grammatical construction, 
from that part of the deed which contains the limitations of uses. I 
am, therefore, of opinion that, upon a comprehensive view of the 
whole of the deed taken together, the limitations to the children are 
limitations of legal contingent remainders, in continuation of and in 
direct sequence upon the , limitations to trustees to preserve those 
remainders i and that the covenant is inserted, at the close of the 
limitation of the jointure, merely for the purpose of better securing 
that jointure, and is to be read as a parenthetic tack or addition 
to the jointure. 

If we pass from the general structure of the deed to a minute 
criticism of its language, considerations may be found both adverse 
to, and in support of, this view. The covenant, taken by itself, can 
undoubtedly be read as a covenant that Richard Hammersly doth 
incumber all present and future estates with the jointure of £80 
a-year; and further, that said lands shall go to the use, &c ; and in 
order to do this, it is only necessary to supply the verb *^ shall go,** 
or " shall enurct" or " shall stand limited ; " and, if the covenant 
stood by itself, the Court would make no difficulty in supplying such 
words. The want of this verb, however, is, perhaps, not altogether 
without signification ; because, undoubtedly, if these words are a 
mere continuation of the limitation of the uses, no verb is required. 



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CHANCERY REPORTS. 235 

as it then becomes only one of a string of uses which have been 1861. 

i. E, Court. 

already aptly commenced in the hiUfendum of the deed ; and, in- >.— «v ' 

In re 
deed, if it were not for the introduction of the word " that ** after hammbrslt 

"further," I think no grammatical difficulty would have existed. rT~^ 
Again, the use of the words '^ said lands ** merely, in the limitation 
to the children, has been referred to as indicating a reference to the 
lands specifically described and conveyed by the deed, rather than 
to the existing and future property of the settlor, which, when men- 
tioned, is described as estates, towns, lands, holdings, tenements, here- 
ditaments and premises. I do not attach much importance, in this 
case, to these minute considerations, though I will not say that they 
are wholly without weight ; I prefer to base my opinion on the general 
scope of the deed. 

On this question I will just make this further observation: — I 
have expressed an opinion that the legal effbct of the limitations is 
to give an estate to Richard Hammersly, for life, with power of 
leasing, with remainder to trustees, for his life, to support contin- 
gent remainders; but, on the principal question, I should have 
arrived at the same conclusion, even if I had felt myself obliged to 
hold that the estate was limited to Richard Hammersly in fee, and 
that the subsequent limitations were void. The considerations upon 
which I have based my conclusion do not depend upon the effect of 
the limitations of the lands conveyed, or even on the question 
whether those limitations have any legal efiect at all or not, but 
simply on the fact that such limitations are in terms expressed in 
the deed. 

The view which I take on this first questi6ti disposes of the 
objections, and renders it unnecessary to consider the other points ; 
but, as the point which I have decided is not free from doubt, and 
as the other questions were discussed, I will shortly state my opinion 
upon them. Assuming that there is a covenant to settle all other 
and a(W-acquired property of the settlor, I am of opinion that it 
would be satisfied by a conveyance of such property to the uses 
mentioned in the deed, stating the uses in the identical words iised 
in the deed ; and that a Court of Equi^ could not and would not 
mould those limitations in any manner. Although the trusts are 



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236 CHANCERY REPORTS. 

1861. not executed, jet they are fully declared, and could not be added to 

\» \ ■■/* or altered, by adding words of limitatioD, or cross remaiiiders 

HAMMBRSLT ^^^^^ ^^® children, or provisions for maintenance, or any other 



Judgment, 



usual clauses. But I think that the words would be sufficient to 
pass to the children the absolute interest in freehold leases, and that 
such interest would pass to the executors of a deceased child, under 
the statute abolishing general occupancy. 

On the remaining question I find, on reference to the deed set- 
tling fiallyhane on Mr. and Mrs. Sargint, that it does not purport to 
be made in execution of any supposed power vested in Richard 
Hammersly, under the settlement or otherwise ; and that, in fact, it 
is an ordinary conveyance or settlement made by an owner in fee. 
I must regard this as a satisfaction, pro tanio at least, of the cove- 
nant, in so far as Mrs. Sargint has a beneficial interest in such 
covenant ; and that, if she fil^d a bill for specific performance of the 
covenant, she would fail, if the property conveyed to her, or settled 
with her consent, was equal in value to her aliquot share of the 
settlor's real estate ; and that if it was of smaller value she could 
only rebover the balance ; or, in other words, that she would be 
obliged to bring this provision into hotchpot. 



In tke Matter of the Estate of the 
Assignees of JOHN SALLERY, Owners and PetiHoners. 



Feb. 20. 



A, by his will, The facts of this case, which was unsupported by authority <m eithw 
dated 29th of « • i 

May 1839, be- aWe, appear in the judgment, 
queathed to 

his ill^itimata fon, B. S., certain leaaeholds, and, if the said B. S. should die with- 
out "heirs or issue, " orer. — Held, that as the 29th section of the Wills Act is 
expresslj confined to the word ** issne," it makes no change in the meaning of the 
expression " die without heirs of the body; " and, therefore ('* without heirs, " in 
the said will, mean^ " without heirs of the body," R. S. being illegitimate), the 
will did not confer the absolute interest on B. 8., with an executory devise oyer 
in the case of his dyins without issue liying at his death, but an estate tail, and, the 
property being leasehold, the absolute interest. 



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CHANCERY BEPOETS. 237 

Mr. Henry FUzgihhon and Mr. J. Vereker appeared for the 1861. 

X. E. Ccwi. 
several parties. 



DOBBS, J. Judgment. 

This case would have been perfectly free from doubt, were it not 
for the 29th section of the Wills Act, 1 Ftc, 0. 26. Robert Sallerj, 
senior, by his will, bearing date the 20th of May 1839> amongst other 
things, bequeathed to his ill^timate son, Robert Sallery, all the part 
of his holding of the lands of Sandymount, containing fifty-four 
acres, at the yearly rent of thirteen shillings per acre ; and the tes- 
tator ordered that if the said Robert Sallery should die without 
heirs, or issue, the said lands of Sandymount should revert to the 
testator's brother, John Sallery, his heirs, executors, administrators 
and assigns. Now there is no doubt that if this will were to be con- 
strued by the law as it stood before the late Act, Robert Sallery being 
illegitimate, the word '* heirs ** must be taken to mean ^* heirs of the 
body ; " and therefore the words *' without heirs or issue ** would have 
been held to mean an indefinite failure of issuer and the efiect of 
those words would have been to create an estate tail in freehold 
lands, and an absolute interest in chattel lands, in Robert Sallery, 
the devisee. But the old law has been changed by the 29th section 
of the Wills Act, which enacts, ** That in any devise or bequest of 
real or personal estate, the words ' die without issue,* or ^ die without 
leaving issue,* or * have no issue,' or any other words which may im- 
port either a want or failure of issue of any person in his lifetime, 
or at the time of his death, or an indefinite failure of his issue, 
shall be construed to mean a want or failure of issue in the lifetime, 
or at the time of the death, of such person, and not an indefinite 
£fdlure of his issue, unless a contrary intention shall appear by the 
wilL" Now if this section applies to the present case, Robert 
Sallery does not take absolutely ; but there is an executory devise 
over to John Sallery, in the event of Robert Sallery not leaving 
issue living at his death. The legal meaning of the phrase " without 
issue," under the old la#, was opposed to the popular one, according 
to which it signified *< without children ;** and, therefore, by the 
Wills Act of 1837, a change was introduced, the efiect of which 



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238 



CHANCERY REPORTS. 



186L 
Xr« E,. Court* 



Judgment, 



was to make the legal meaning conformable with the popular one» 
as being present to the minds of most testators. Bot the change 
in the law is, by the words of the Act, confined to the construction 
of the words "die without issue,'' and the like words, and does 
not, in terms, apply to the construction of words which import 
dying without heirs of the body ; it being a clear principle of con- 
struction that " expressio unius est exelusio alterius ;" and there not 
being the same reasbn for a change of construction where the 
words "heirs of the body" are used, as where the word "issue" 
is used, I am of opinion that the words " die without heirs of the 
body," and similar expressions, are not within the meaning of the 
section, and therefore are to be construed as they were before the 
Act passed. I have been unable to find any authority on this 
point ; but, for the reasons I have mentioned, it appears to me to 
be qikite clear, that the intention of the Legislature was to confine 
the change of construction to the cases in which the word " issue " 
is used by testators. It is a well known principle of construction, 
that effect should be given, if possible, to every word of a will. 
Now the words in this will are not only "without issue," but 
"without heirs or issue ; " I must, therefore, if I can, give effect 
to both words. The testator has shown throughout the will that 
he perfectly understood the meaning of the word heir ; he has used 
it several times, but never otherwise than in its strictly legal sense 
as a word of limitation. Robert Sallery's estate, therefore, does 
not go over until he dies without heirs of his body ; the effect of 
which would be to give him an estate tail in freehold lands ; and 
the property here being a chattel real, he takes the absolute in- 
terest therein. 



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CHANCERY REPORTS. 239 



1860. 
CA. Appeal, 



PHILIP CHARLES NEWTON, PlainHff; 

PHILIP JOCELYN NEWTON, HENRY NEWTON, 

ARTHUR FITZMAURICE and 

BEAUCHAMP FREDERICK BAGENAL, Defendants: 

THOMASINE JANE ROBERTS, Iniervenient. 

Nov. 5, 6, 9. 

This oauae came before the Court on a petition presented by the Where the 

Jadge of the * 
defendant Philip Joceljn Newton, heir-at-law of John Newton, Court of Pro. 

by which this defendant soaght to reverse an order of the Jndge igsaeg respect- 

of the Court of Probate, directing certain issues to be tried by ^ papei^ 

a special jury before the Court of Probate itself. The following Ap™^**^^ 

were the material fiicts appearing on the petition : — The said J^^r^^merd* 

John Newton was, at the time of his death, seised in fee-simple on the ground 

*^ that theiisues 
of certain lands in the county of Carlow, and died in October 1869* directed do not 

excmde aU . 
Before 1858, John Newton duly executed several testamentary consideration 

of questions of 
instruments; among others, a will dated the I6th of September law. 

1860; another dated the 23rd of February 1852; another dated Statement. 
the 29th of December 1852 ; a codicil dated the 6th of October 
1853; another dated the 3rd of Deceinber 1854; and a third 
dated the 17th of October 1854. From the time of dieir exe- 
cution these documents remained in the custody of various parties, 
until after the death of the said John Newton. John Newton 
duly made another will, dated the 4th of February 1858, and 
thereby revoked all former wills by him made, and thereby devised 
all his real property to William Forbes Johnson and his heirs, 
upon trust, out of the rents and profits thereof, to pay yearly 
unto Miss Thomasine Jane Roberts, the intervenient, an annuity 
of £100 a-year. Then he directed the trustee, by sale or mortgage, 
to raise the sum of £500 for Beauchamp Newton Johnson, son 
of Charles Fraser Johnson, solicitor ; then, subject to the annuity 



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240 



CHANCERY REPORTS. 



1860. 
Ch, AppeaL 

V. , ' 

19EWTON 

V. 
NBWTON. 

Statement, 



and bequest, he devised his said estates to the use of the children 
of his marriage, as tenants in common in fee, and, in default of 
such issue, to . the use of Philip Charles Newton, the plaintiff, 
for life, with remainder to hb first and other sons in tail male, 
with remainder to his issue female, as therein mentioned, remainder 
to his own right heirs ; and the said testator thereby provided 
for payment of his simple contract debts, and payment of funeral 
and testamentary expenses, out of two policies of insurance for 
£1000 each; and also directed that the residue afceir those' pay- 
ments should be handed to his said nephew, Philip Charles Newton, 
to whom testator thereby bequeathed such residue. The testator 
then bequeathed the residue of his property, real and personal, 
upon trust, for the person or persons who under his will might, 
at the expiration of ten months from the day of his death, be 
entitled to the lands thereinbefore devised. The will was prepared 
in Dublin by said C. F. Johnson, a solicitor, and was executed by 
the said John Newton on the day on which it bears date. Imme- 
diately upon its execution, the said John Newton took the will into 
his own possession ; and, though search was made for it after the 
death of the said John Newton, it was not forthcoming; but a 
document purporting to be a copy or the original draft of the 
said will was retained by said C. F. Johnson, and lodged in the 
Court of Probate. 

John Newton made and published another will, dated the 24th 
of April 1868, thereby revoking all former wills theretofore made 
by him; and thereby, after a bequest to his wife for life, he 
bequeathed all his other property, real and personal, to P. C. 
Newton, the plaintiff, his heirs and assigns, for ever, and nomi- 
nated the said plaintiff his residuary legatee, and Arthur Fitzmau- 
rice to be e:2^ecutor. The last-mentioned will was prepared by 
Charles Thorp, a solicitor, was executed by John Newton, and, 
until after the death of the said John Newton, it remained in 
the custody of the said Charles Thorp. 

The said John Newton made another will, dated the 11th of 
January 1859> thereby revoking all former wills; and by it, 
after certain bequests to his wife during her life, with remainder 



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CHANCERY REPORTS. 241 

to the said plaintitf, and directing his personal estate to be sold, I860. 

Ch. Appeal, 
he devised his real estates to the said Arthur Fitzmaurice, his 




heirs and assigns, to the use of any child he might have, his or 

her heirs, for ever; and, in case there should be no such child, 

subject to the annuities thereby charged thereon, to the use of statement. 

P. C. Newton for life, remainder to his firkt and other sons in 

tail ; in default, to Beauchamp Frederick Bagenal for life, remainder 

to his first and other sons in tail, and, in default, to his own right 

heirs; and he thereby gave certain annuities and legacies, and 

appointed Arthur Fitzmaurice sole trustee and executor of his 

said will. This last will was prepared by Thomas Jameson, a 

solicitor, and was duly executed on the day on which it bears 

date; and, shortly af^r its execution, it was forwarded to said 

Fitzmaurice, in whose possession it remained until after the death 

of the said testator. 

On the 7th of February 1859) Mr. Newton made a codicil to 
his last will, which was prepared by Mr. John Litton, a solicitor, 
and was duly executed on the day it bears date. From the time 
of its execution until after the death of Mr. Newton, the codicil 
remained in the possession of Mr. Litton. On the 16th of February 
18599 Mr. Newton duly made a codicil of that date, which com- 
menced as follows : — '* This is a codicil to the last will and testa- 
ment of me, John Newton, of Bagenalstown-house, in the county 
of Carlow, Esq., bearing date on pr about the 4th day of Febru- 
ary 1858, and which I desire may be considered as annexed to 
and be taken as part thereof." It then made provisions revoking 
the bequests to Philip Charles Newton, in case of marrying in 
the lifetime of the testator without his knowledge; and it termi- 
nated — '* In all other respects I confirm my said will, especially 
that part of it whereby I charge my said estates with the sum 
of £500 for, and bequeath the same to, Beauchamp Newton John- 
son, and which bequest I hereby repeat and re-aflSrm." The 
last-mentioned codicil was prepared in Dublin, by the said C. F. 
Johnson. After its execution, this codicil remained for a short 
time in the possession of the said G. F. Johnson ; but, on th» 

10th of May 1859, ^r. Newton wrote the following letter:-^ 
VOL. 11. 31 



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242 



CHANCERY REPORTS. 



1860. 
CA. Appeal 

NEW TON 

V. 
l^EWTON. 

Statement. 



"My dbar Johnson — I wrote to you on Sunday for the paper 
I executed about Ham, on account of his affair with Miss B. ; 
will you be so good as to send it to me by return. — Ever yours, 
most truly— -John Newton." The person referred to in the said 
letter as ** Ham " was the plaintiff P. C. Newton, and the paper 
referred to, the codicil of February 1859; and the said Charles 
Fraser Johnson forwarded it by post to Mr. Newton. 

The petition of appeal then alleged that Mr. Johnson retained 
a copy or original draft of this codicil, which was lodged in Her 
Majesty's Court of Probate. That search was made for the said 
last-mentioned codicil, after the death of the said John Newton, 
but that it could not be found; and the appellant alleged that 
it was destroyed by the said John Newton in his lifetime, with 
the intention of revoking the same. 

Mr. Newton having died, the plaintiff in the Court below, 
Mr. P. C. Newton, on the 27th of March 1860, filed the fol- 
lowing declaration in the Court of Probate : — " Philip Charles 
Newton, by Thomas Jameson, his attorney, says that John New- 
ton, Esq., late of Bagenalstown-house, \n the county of Carlow, 
deceased, who died on or about the 21st day of October 1859, 
at Wilton, in the county of Wexford, made his last will and 
testament, and a codicil thereto, bearing date, to wit, the said 
will, on the 4th day of February 1858, and the said codicil, on 
the 16th day of February 185^, but which said will and codicil 
were not forthcoming at the death of said deceased, and which will 
and codicil were 'respectively in the words and figures, and to the 
purport and effect contained and expressed in two exhibits, deposited 
by C. F. Johnson, solicitor, in the registry of this Court, on or about 
the 19th day of January I860, and referred to in the affidavit of 
said C. F. Johnson, filed in this Court on the 19th day of January 
last, and entitled, * In the goods of John Newton, deceased,' and 
therein described as the drafts respectively of said will and codicil ; 
and which sc^id will and codicil were respectively reduced into writing, 
and sign^ by said testator in the presence of two witnesses, present 
at the same time, and who subscribed the same in the presence of 
said testator, and of each other ; and the said testator was, at the 



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CHANCERY REPORTS. 



243 



time of the execution of the said will and codicil respectively, of 
perfect sound mind, memory and understanding, and which said will 
and codicil were by said testator afterwards in his lifetime destroyed, 
with the design not of absolutely revoking same, but with the design 
of thereby giving effect to a certain other testamentary instrument, 
namely, a will, dated the 11th day of January 1859; and which 
object and intention of said testator having failed, by reason that such 
other testamentary instrument had been itself revoked, and become 
inoperative, the said will, dated the 4th day of February 1858, and 
codicil, dated the 16th day of February 1859> are unrevoked, and in 
full force and virtue ; and in which will of the 4th day of February 
1858 the said Philip Charles Newton is named as a devisee and 
legatee, and of which will said testator named William Forbes 
Johnson and Arthur Fitzmaurice executors." To this the appellant 
pleaded, and says that the will and codicil, in the declaration men- 
tioned to bear date respectively the 4th of February 1858 and 16th 
of February 1859) formed the last will and testament of the deceased, 
and that the said will and codicil were, and each of them was, 
destroyed by the said deceased in his lifetime, with the intention of 
revoking the same. 

The defendant B. F. Bagenal, who was a minor, pleaded by his 
guardian, that the will and codicil alleged b^ plaintiff were respect- 
ively destroyed by said testator in his lifetime, with the ddsign and 
intent of absolutely revoking and rendering null and void the same 
will and codicil respectively ; and that the true last will of said 
deceased testator was the will of the 11th day of January 1859. 
In April 1860, the intervenient, Thomasine Jane Roberts, by leave 
of the Court, pleaded that the said will of the 4th of February 1858, 
and said codicil of the 16th of February 1859, were not forthcoming, 
and, if destroyed by the said testator, were So destroyed by him with 
the design, object and intention of giving effect to said will of the 
Llth of January 1859; and that if the said design and object or 
intention had failed or been defeated, by reason that such other, 
testamentary instrument of the 11th of January 1859 had been 
itself revoked and become inoperative, the said Thomasine Jane 
Roberts insisted that the will of the 4th of February 1858, and 



1860. 
Ch, Appeal. 

NEWTOH 

V, 
NEWTON. 

Statement. 



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244 



CHANCERY REPORTS. 



1860. 
Ch, Appeal, 

NEWTON 

V. 
NEWTON. 

Statement, 



codicil of the 1 6th of February 1 859i were unrevoked, and in foil 
force and virtue, and the said Thomasine Jane Roberts a devisee or 
legatee named in said last mentioned will ; but that, if said will of 
the 4th of February 1858, and codicil of the 16th of February 1859, 
were not in full force and effect, that said codicil or testamentary 
instrument of the 7th of February 1859 was in full force, and the 
said T. J. Roberts a devisee and legatee in the same. 

In April 1860, the cause was set down for hearing before the 
Court of Probate, upon affidavits. In May I860, the defendant 
B. F. Bagenal obtained leave of the Court to file further pleas, and, 
accordingly, pleaded, first, that the will bearing date the 11th of 
January 1859 was revoked, but was still the last will of deceased; 
and that the alleged codicil of the 16th of February 1859 was not 
the true last will and testament ^of said deceased, nor a codicil 
thereto, nor to any other will of deceased ; for that deceased never 
executed said alleged codicil, knowing the contents and purport 
thereof, and with the intent that same should be his last will and 
testament, or any part thereof, or any codicil thereto; and that, 
if same was ever signed by him, still it was so signed by him in 
ignorance of the contents thereof, and without any intention that 
the same should be his last will and testament, or any part thereof, 
or any codicil thereto, or that same should revoke any will or 
bequest of his ; and that it was so signed, being substituted by the 
solicitor of said deceased for and instead of an instrument of said 
deceased, intended to be of a different import and effect, which said 
deceased did intend to sign, and in fact supposed he was signing, when 
he erroneously put his name to said alleged codicil, contrary to his 
intention : and, secondly, that the will of the 1 1 th of January 1 859 was 
the last will and testament of said deceased, and was still unrevoked, 
and that the said alleged codicil of the 16th of February 1859 did 
not revoke same ; for that, on the last mentioned day, said deceased 
being displeased with P. C. Newton, because of his then intending 
to contract a certain marriage, and said will being at that time the 
will and testament of deceased, he (said deceased) directed C. F. 
Johnson to draw up a codicil conditional upon, and in reference to, 
^aid marriage, in case same should take effect, and not otherwise^ 



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CHANCERY REPORTS. 245 

and as a codicil, or in the nature of a codcil to his then last will ; 1860. 

but he did not direct that the same should refer to or set up any _J^ ^^3' 

will dated the 4th of February 1858 ; and, therefore, the said C. F. ^^"^^^^ 

Johnson, without instructions from, or knowledge of, deceased, and newton. 



without the words hereafter mentioned being directed to be inserted stattment. 
therein, or being read by said deceased after insertion, added to and 
inserted in said paper or codicil the words following, that is to say, 
'bearing date on or about the 4th day of February 1858,' 'and to 
the residue of my personal property out of the same land,' ' and per- 
sonal ; ' ' especially that part of it whereby ; ' ' and which bequest I 
hereby repeat and re-affirm ; ' and the said C. F. Johnson after- 
wards, by representing to said deceased that said alleged codicil, 
with said words so introduced (but without informing deceased of 
such words having been introduced), was framed according to his 
instructions, and without deceased having read same, or being aware 
thereof, or of the purport or effect of said paper or codicil, and with- 
out intending to revoke said last will, or any part thereof, except in 
the event of the solemnisation of said intended marriage, which 
never was solemnised, procured the signature of said deceased to 
said paper or codicil, and which paper or. codicil was afterwards 
destroyed by said deceased, with the intent of rendering same 
wholly inoperative for any purpose. Wherefore defendant eaith 
that said paper or codicil, so far as regards said words, so inserted 
as aforesaid, is not a will or codicil of deceased ; and said deceased 
never intended that said words should form part of said paper or 
codicil, or of any other will or codicil of said deceased, and said 
words ought to be expunged therefrom; and that said will never 
was revoked by said deceased by said paper or codicil, or otherwise, 
but is now his true last will and testament." 

On the 15th of May 1860, the appellant applied to the Court by 
motion, that the further pleas of B. F. Bagenal might be set aside, 
or reformed, as in the notice of motion mentioned ; whereupon, on 
the 22nd day of May I860, it was ordered that the said order, bear- 
ing date the 8th day of May I860, should be discharged, and that 
the said pleas, filed by said Beanchamp Frederick Bagenal, on the 
8th of May 1860, should be set aside, and that the costs of said order, 
bearinir date the 8th day of May 1860, and of said pleas, should 



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246 



CHANCERY REPORTS. 



1860. 
Ch, Appeal. 




Statment. 



be costs in the cause ; and it was thereby further ordered that 
the following questions be tried by a special jury of the city of 
Dublin, before the Court itself; viz., First; ''Whether the paper 
writing marked ' A/ and in the plaintiff's declaration mentioned, 
or any and what parts or part thereof, are or is a true copy 
of a codicil in said declaration alleged to bear date on the l6th 
of February 1869, and tO' have been made by John Newton, 
deceased, the deceased in this cause, and not now forthcoming, 
and to be a codicil to a certain will, in said declaration also alleged 
to have been made by said John Newton, deceased, and not now 
forthcoming, and bearing date the 4th of February 1856; and, if so, 
whether such alleged codicil, bearing date the 16th of February 
1859, and said alleged will, bearing date the 4th of February 
1858, were together, at any time, the last will and testament 
of John Newton, deceased ? " 

Second ; '* Supposing the said alleged codicil, bearing date the 
16th of February 1859, or any parts or part thereof, and said 
alleged will, bearing date the 4th of February 1858, to have 
been together, at any time, the last will and testament of John 
Newton, deceased, were the said will and codicil subsequently 
revoked by the said John Newton?" 

From this order the present appeal was brought by the heir- 
at-law of Mr. John Newton. 



Mr. Serjeant Lawson, and Mr. Brewster ^ with them Mr. Charles 
ShaWy for the appeal. 
Argument. There is no use in sending to the jury questions of law. If it be 

admitted that the document produced is really a copy of the codicil 
of the 16th of February 1859, that codicil, of necessity, sets up the 
will of the 4th of February 1858, thus revoking the subsequent 
will. No evidence is admissible to show that Mr. John Newton 
had an intention different from the legal effect of his act. Since 
the Wills Act, 7 W. 4, and 1 Vic. c. 27, no evidence is admissible 
of an intention to revive a revoked will, save by the re-execution 
of it. Nothing, in fact, is to be decided in this case, except a 
question of law. If the Judge required further evidence, he ought 
to have obtained it under tiie 36th section of the Probate Act. 



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247 



There is no evidence before the Coart to raise any doubt upon 
the state of facts. 

Mr. BaUersby, Mr. E. Johnston, Mr. J. T. Ball, Mr. J. E. 
Walsh, Mr. Lloyd, and Mr. Litton, contra. 

The policy of the Probate Act is to have questions of fact deter- 
mined by a jury. Here there are several questions of fact ; one, 
whether the writing produced is a copy of the alleged codicil; 
another, whether the testator was aware of the effect of the codicil, 
or of his revocation of it ; again, whether he intended to revoke the 
will: Steward v. Snow (a) i Perrott v. Perrott{b)i Patten v. 
Poulton{e)\ Onions v. Tyrer {d) ; Goodright v. Glazier (e); 
Walpole V. Cholmondely (f) ; Kirke v . Kirke {g) ; Short d. Gas- 
trell V. Smith {k) ; Locke v. James (t) ; Payne v. Trappes (k) ; Be 
De Bode (/) ; Be Applebee (m). 



1860. 
Ch, AppedL 

^— — V ' 

NEWTON 

V. 
NEWTON. 

Argument. 



The LoBD ChanceIlor. 

This case comes before the Court upon an appeal from an order 
made by the Judge of the Court of Probate, by which he directs that 
certain issues shall be tried before himself and a jury. These issues 
relate to the will of the late Mr. John Newton, and beyond doubt 
they involve two questions of fact; that is to say, first; "Whether 
the paper writing marked 'A,' or any and what part or parts 
thereof, are or is a true copy of a codicil alleged to bear date on 
the 16th of February 18599 ^^^ to have been made by John 
Newton deceased, and not now forthcoming; and if so, whether 
sach alleged codicil and the alleged will, bearing date the 4th 
of February 1858, were together at any time the last will and 
testament of John Newton deceased ? ^ Second ; " Supposing the 

(a) 1 Mil. 626. (6) U East, 440. 

(0 4Jiir., N. S.,84l. 
(<f) 1 P. Wmi. 343 i S. C, Prec Ch. 459. 
(«) 4 Burr. 2512. (J) 7 T. R. 138. 

{g) 4 Bum. 435. (A) 4 East, 419. 

(0 11 M. & W. 901. (Jk) 5 N. C. 152. 

(0 5 N. C. 189. (m) 1 Hog. 143. 



Nov. 9. 
Judgment. 



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CHANCERY REPORTS. 



1860. 
Ch, Appeal. 

NEWTON 

V. 
NEWTON. 

Judgment, 



said alleged codicil and will to have been together, at any time, the 
last will and testament of said John Newton deceased, were the 
said will and codicil subsequently revoked by the said John 
Newton?" Now, on the face of these issues, they are plain 
ordinary questions of fact, arising, and obviously arising, out of 
the proceeding before the Court; bec^iuse that proceeding was in- 
stituted for the purpose of deciding whether these documents, 
or any others, constituted the will of Mr. Newton. The Judge 
of the Court of Probate, on examination of the evidence before 
him, which consisted mainly of two affidavits, and on inspection 
oft the various wills executed by Mr. Newton, thought it was a 
case in which he ought to have the assistance of a jury in com- 
ing to a final opinion on the facts. As I have stated, this appeal 
is brought from his order directing these issues to be tried, and, 
on this ground, that in point of fact there was no question what- 
ever to be tried; or that if there were one, it was one which 
ought not to be tried on an issue ; but that it was the duty of 
the Judge to have decided the case, either on the evidence be- 
fore him, or in a proceeding under the d6th section of the 20 
and 21 Ftc, c. 79; that he ought to have dealt with the case 
in one or other of these modes, and thus determined it, either 
upon mere affidavits and the documentary evidence before him, 
or upon the examination, and, of course, cross-examination of 
the witnesses taken before him in open Court, in pursuance of 
that 36th section. 

Both of these propositions, however, amount to the same thing ; 
that is, that there are questions in the case which are to be tried 
in some form, and further, that these questions are questions of fact, 
namely, whether in point of fact the codicil of 1859, and the will 
of 1 858, made the last will of Mr. Newton ? and whether these were 
afterwards revoked ? These are questions of fact arising out of the 
proceedings in this suit. That being so, and there being these 
questions arising, and necessarily arising out of the proceedings, 
the 41st section of the Probate Act declares, that "It shall be 
lawful for the Court of Probate to cause any question of fact, 
arising in any suit or proceeding under this Act, to be tried 



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CHANCERY REPORTS. 249 

by a special or common jury before the Court itself, or by means 1860. 

Ch, Appeal. 
of an issue to be directed to any of the Superior Courts of Com- 




mon Law." 

The Judge then is invested with the power of trying issues 
before a jury; and here, upon inspection of the documents, and Judgment, 
having regard to the very peculiar circumstances of the case, 
and its great novelty, especially considering the number of in- 
struments executed, he has thought it the safest course to call 
for a jury, and have the witnesses examined before it. But the 
appellant then says the question is not one of fact at all ; it is 
purely a question of law which is to be tried, namely, whether, 
having regard to the evidence, even supposing it to be at all 
admissible, there is anything which would amount to a confir- 
mation of a previous will? or whether the evidence is a mere 
nullity in the case ? Again, as to the revocation of these instru- 
ments, it is said that this also is a question of law, or at all 
events that there is not any question of fact; that the document 
has not been found; that it has been traced into the testator's 
possession; that its absence cannot be accounted for, and there- 
fore that a presumption of fact arises that it has been destroyed. 
Now, first, let me ask if we can assume here that such questions 
of law would be at all tried by the jury, or that the Judge 
would not tell the jury the conclusion which it would be proper 
for them to draw, from whatever state of facts should be proved ? 
That observation applies to both issues ; both may be mere questions 
of fact, or may turn out to be questions of fact and law mixed, so 
that the consideration of both must go together ; and there might 
be great inconvenience in having such questions left to a jury: 
but it does not go before a jury alone, it goes before a jury 
and a Judge who will direct the jury, and we must assume that 
' every proper direction will be given. If there be any error in 
the mode of leaving the case to the jury, we have before us 
several gentlemen of great ability who practise in the Court of 
Probate, and we have no doubt the proceedings will be narrowly 
-watched, and will be put into a shape which will give an oppcurtu- 
nity of correcting any mistake. 

VOL. 11. 32 



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250 CHANCERY REPORTS. 

I860. Under these circumstances, are we, at this stage of the case, to 

.J^^J^^ say that it is not in the power of the Judge of the Court of Probate 
NEWTON ^ ^^^^ ^^^^ j^^ would prefer having the case investigated before 
NEWTON, himself and a jury? In my mind, such a case is better disposed of do. 
Judgment, ^ ^^ °^^ ^V ^*^ ^^^''^ ^^^ ^^^ ^ something which, in one view of 
the case, might appear to make it premature now to direct an issue. 
It may be that it would have been better to have had the exami- 
nation of witnesses, and then to have the issue framed according 
to whatever might appear to be the difficulty. Where, however, 
the questions in issue respect matters of fact, are we to interpose, 
and say that they are to be tried in one way only ? When it is 
said that there is a mixed question of law and fact, we must re- 
collect that, were it not for this new tribunal, the question respect- 
ing the real estate which is in litigation must have been decided 
by a jury on a much wider issue, consisting only of a few words, 
if an issue was directed from this Court, or without anything 
whatever on record to point to the true question, if it were tried 
in an ejectment. 

I do not now go into the question whether it will be possible 
to give evidence respecting the alleged mistake, or tending to 
show that the testator thought he wan doing one thing when he 
did another ; but at all events the question of mistake, if it arises 
at all, is a question for a jury: Raworih v. Marriott (a). Then 
it is said that there was a plain revocation here by destruction, 
which must be presumed. From the earliest times, however, 
the animus f the intention with which a testamentary instrument 
was destroyed,, has been always held to be a question of fact. 
Whether it was to be decided on contemporaneous acts and decla- 
rations, or whether it was competent to go into evidence of subse- 
quent declarations, I do not give any present opinion. But as to 
(he nature of the alleged mistake, it must be remembered that 
Perrott v. Perrott (b) shows that the doctrine is not necessarily 
confined to a mistake in fact, but that a mistake in law also 
may render the effect of cancellation questionable. 

On the whole case, therefore, we must affirm this order, seeing 
that there are questions of fact arising on the face of the proceed- 
(fl) 1 M. &. K, 648. (6) 14 East, 440. 



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251 



ibgs, and that it would be very embarrassiDg to the working of the 
Court of Probate if an appeal lay from the Judge, merely because 
he preferred to have an investigation in limine before himself and 
a jury, and we were thus to deprive" the Court of the discretion 
conferred on it, and to say, you must proceed under the 36th 
section, you cannot proceed under the 41st. We give no opinion 
as to the ulterior questions; we merely decide on the conduct of 
the trial, and we reserve all other points. It may be that, when 
the case comes to a further hearing, other questions will arise; 
but at present we think that we ought not to take the manage- 
ment of the case away from the Judge to whom it properly 
belongs. 



1860. 
Ch, AppeaL 

NEWTON 

V, 
NEWTON. 

Judgment. 



The LoKD Justice of Appeal. 

I quite concur with my Lobd Chancellor in the view he has 
taken of the case, and in every observation be has made upon it. 
The order appealed from was objected to on several grounds, im- 
pugning the power of the Court of Probate to submit to a jury the 
subjects of the issues it has directed ; but, on a due consideration 
of them, I think the object of these issues is the ascertainment of 
matters of fact, which, on an issue devisavii vel non^ would be ex- 
aminable by a jury. They are, whether a copy of the codicil of the 
16th of February 1859 be a true copy of it? Whether that codicil, 
with the will of the 4th of February 1858, which it refers to, were 
the will of John Newton,, at any time ; and if they were, whether 
they were revoked ? 

Every one of these inquiries, and the* answers to them, are mate- 
rial ; nor can I accede to the objection that any of them transfers to 
the juiy matters of law, or can give them a greater latitude than 
that with which the law has invested juries in trying the due exe- 
cution of wills of real estate. 

On such trials, questions constantly arise in which the conclu- 
sions to be formed must be the result not only of the evidence of 
matters of fact, but also of the legal principles which it is the 
exclusive duty and province of the Judge to state for their govern- 
ment and their duty to observe ; and there is, perhaps, no subject on 



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CHANCERY REPORTS. 



1860. 
^A. AppeaL 

y , ' 

HBWTOK 

V. 
NfiWTON. 

Judgment, 



which the assiatance and control of the Judge is so indispensible as 
issues involving the revocation of testamentary instruments. Should 
a jury exceed the limits prescribed to them, and assume a right to 
disregard the law as propounded to them, they will in this, as they 
would be in all similar instances, controlled and corrected. But we 
cannot presume, much less act on, the presumption that they will 
exceed their province; and we may rest assured that they will 
receive from the learned Judge such assistance as will enable them 
to fulfil their own peculiar duty, without encroaching on his. 

It did occur to me, during the argument, that we should have 
had better, at least more specific, grounds for the consideration of 
the order, had the case been more fully investigated, and a cross- 
examination been had of the witnesses, especially of Mr. Johnson. 
But, considering that this was a case of an alleged disposition of 
real property, by testamentary instruments, and that the Judge 
deemed the assistance of a jury to be of importance, I cannot see 
how it is possible to question his jurisdiction to make the order, or 
control his discretion as to the time or stage of the proceedinga at 
which it should be made. 

Court of Appeal Hearing Book 1, /• 384. 



Nov. 7, 8. 



RICHARD JAMES LONG* 



V, 



HILL GILLMAN LONG, MARY ANNE FAIRTLOUGH, 

The Rev. EDWARD FAIRTLOUGH, EDWARD CONNOLLY 

and JOHN HOPKINS. 



In 1806, L., This case came before the Court on a petition of appeal from an 
a 1^ for lives order of the Master of the Rolls, dated the 9th of June 1860, by 

conyovdd it to 

his ddest son J. for lifo, with remainder to X, the eldest son of J. In 1813, L. 

acqoiied the reversion of the renewable lease, and in 1822 conveyed the reversion 

* Coram the Lobd Cbancbllob and the Lord Jvstice or Appbal. 



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CHANCERY REPORTS. 



253 



which the petition was dismissed with costs, ifnder the circumstances 
following: — By an indenture, dated the 11th of March 1781, Wil- 
liam Tonson demised to Daniel Callaghan the lands of Shanavagh — 
[See 10 Ir. Chan. Rep^y p, 406] — for three lives, with a covenant for 
perpetual renewal, on payment of a fine of £6 ; and Daniel Callaghan 
thereby covenanted to pay the renewal fine within twelve months after 
the death of each life, and in default to pay a penalty of five shillings 
like currency per month. The reversion in fee of the said premises, 
afterwards, and at the date of the renewals, next stated, was vested 
in William Lord Riversdale, and the lease in Richard Long, great- 
grandfather of the petitioner. By indenture, dated the 1st of 
August 1801, Lord Riversdale granted to the said Richard Long a 
renewal of said lease of 1781 ; and by indenture, dated the 19th of 
April 1808, a further renewal of the said lease of 1781, for the lives 
of William Swanton, Catherine Swanton and Robert Swanton. In 
1809, the lessee's interest, under the lease and renewals, was con- 
veyed to the use of James Long, grandfather of the petitioner, for 
life, with remainder to the use of his only son, Richard James Long, 
the father of the petitioner, quasi in fee ; the said James Long died 
in the year 1815, and the said Richard James Long, his only son, in 
1862. The reversion on the lease and renewal, in the year 1813, 
became vested in the said Richard Long, who, by indenture, dated 
the 3rd of August 1822, conveyed the said reversion to Richard 
Long his son, in fee. Richard Long the son, in or about the year 
1833, died intestate and without issue, and thereupon the said 
reversion vested in George, his eldest brother of the whole blood, as 



1860. 
Ch, AppeaL 

*— V ■ ■ ' 
LONG 

V. 
LONG. 

StaUmeni^ 



to R., the eldest son of his second marriage. In 1854, H., the heir-at-law of B., 
filed a cause petition against the executrix of X, to recover arrears of the rent 
against X's assets. As a defence to that suit, it was alleged that L. was insane 
wnen lie executed the conveyance of 1822. Li May ]857» H. senred a notice on 
Y, the heir of X, and also of L., calling on him to take out a renewal. To 
tlds notice Y returned an answer, declining to take out a renewal till H.'s right 
was established in the cause petition, but nominating lives to be inserted in the next 
renewal, if H. should establish his right, and stating his readiness to pay into 
Court the amount of the renewal fines, to the credit of the then pending petition. 
In June 1857> the Master made an order establishing H/s right to the reyersion, as 
gainst the executrix, which was a£9rmed on appeal, on the 11th of Januaiy 1858. 
^ere were some fiuther proceedings in H.'s suit ap to November 1858. In 
December 1858, Y tendered a renewal and fines to H., and filed a petition for 
renewal in February 1859.— Held, that the tender was too late, and that the right 
of a renewal was forfeited. 



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CHANCESY REPORTS. 



I860. 
Ch, AppeaL 

LONG 
LONG. 

StatemenL 



heir-at-law, and^ on the death of George Long, descended on Hill 
Gillman Long, his eldest son and heir-at-law. Richard Long, the 
grantor in the deed of 1822, at the time of the execution thereof, 
was odd and eccentric in his habits, and the petition alleged him to 
have been unreasonable in his language, unsound in his mind, and 
considered by many members of his family incapable of managing 
his affairs or making a deed. He died some time in the year 1823, 
leaving Richard James Long, the son of James Long, his grandson 
and heir-at-law. The said Richard James Long was about twelve 
years old at the time of the death of his grandfather, the said Richard 
Long, the grantor, and alleged to have been ignorant of the deed, of 
the circumstances which made that deed invalid or questionable, and of 
his rights as against that deed ; but he paid the reserved rent to the 
persons entitled, under the deed of 1822, until the year 1846, four- 
teen years after he had attained his age. In that year, however, be 
set up a claim to the reversion, and never afterwards paid any rent. 
He died in the year 1852, leaving the petitioner his only son and 
heir-at-law, having made his will, whereby he devised all his estate 
in the said lands of Shavanagh to the use of the petitioner, who was 
an infant at the time of the decease of his father, and did not attain 
his age until the 18th of March 1857. During the lifetime of Richard 
James Long, no proceedings ever were taken to enforce payment 
of the rent reserved by the lease of 1781 ; but after his decease, 
that is to say, in May 1853, George Long filed a cause petition, 
claiming An arrear of rent as due to him by the said Richard James 
Long, praying for the administration of his real and personal estate, 
and naming as respondents therein, amongst other parties, the 
petitioner and Ellen Long, the personal representative of the said 
Richard James Long. The petitioner never appeared in the said 
cause, nor was a guardian ad litem ever appointed for him therein. 
George Long died in 1853, and the respondent Hill Gillman Long 
revived the said cause petition. Ellen Long, as the personal 
representative of Richard James Long, raised in the cause peti- 
tion matter the question of the validity of the said deed of 
August 1822, and litigated the right of Hill GiUman Long to the 
said rent. 



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In 1864, this cause petition having come on to be heard before 
Master Littpn, Coansel on behalf of Ellen Long insisted that an 
issue should be directed to try the sanity of Richard Long at the 
time of the execution of the grant of 1822. The Master refused to 
direct this issue ; and Ellen Long appealed from his order, which 
was affirmed by the Master of the Rolls; on the 21st of November 
1854 (a). Ellen Long subsequently adduced evidence to show the 
insanity of Richard Long the grantor, at the time of the grant ; 
but the Master, by his final order, dated the 16th of June 1867, 
declined to direct an issue as to the sanity of Richard Long, and 
declared the demand of Hill Gillman Long for the arrears of rent 
well proved. By this order he determined the amount due for rent 
to Hill Gillman Long, including the amount due up to the last gale 
day, and directed the appointment of a receiver to raise the amount. 
In order to avoid the appointment of a receiver, Mrs. Long brought 
into Court the entire amount found due, and subsequently appealed 
from the Master's order. On the 7th of November 1867> the Mas- 
ter of the Rolls made an order, reciting that the question raised 
before the Master would arise in the action which must be brought 
to recover the rent accrued since the death of Richard James Long, 
directed the further consideration of the case to be postponed till 
the 3rd of Deceqiber 1867; and, in the event of an action being 
brought on or before that day, it was ordered to stand over till judg- 
ment should be obtained in that action. No action was brought, and, 
on the 11th of January 1868, his Honor varied the Master's final 
order, in relation to that portion of the rent which accrued due after 
the death of Richard James Long, and affirmed the Master's order 
in all other respects. 

Subsequently an application was made to the Master, by Hill 
Gillman Long, to have the entire amount paid out to him, which 
had been brought in by Ellen Long ; and this application was 
granted, upon the ground that the rent accrued after the death of 
Richard James Long would bave been paid by the receiver, if one 
had been appointed ; and that the fund having been brought in, to 



1860. 
Ch, Appeal. 




Statement. 



(a) See 4 Ir. Chan. Bep. 106. 



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CHANCERY REPORTS. 



1860. 
Ch, Appeal. 
— V — ^ 

LONG 
9. 

LONG. 

Statement. 



avoid the appointment of a receiver, must be treated as if it had been 
ret^eived. by a receiver. From this order Ellen Long appealed ; but 
it was affirmed by an order made by the Master of the Rolls in 
November 1858. 

The petitioner attained his age on the l8th of March 1857, before 
the Master's final order in Hill Gillman Long's suit ; but during his 
minority he had sought to obtain evidence on behalf of Mrs. Long, 
had made an affidavit on her behalf, and, to some extent, acted as her 
agent. Shortly afler his attaining his age, and in the month of May 
1857, a notice, signed by the respondent Hill Gillman Long, was 
served on the petitioner, directed to all persons concerned, requiring 
them to renew the said lease, within two months, and pay the rent, 
renewal and septennial fines. In reply the petitioner served the 
following notice: — 

*' SiBr— la reply to your notice, dated the 15th instant, I have 
to say, first, that unless and until your right to the reversion, 
rent and fines therein mentioned is established in the matter of 
Ijong V. Long^ now pending in the Court of Chancery, I cannot 
comply with your demand. Second; that I name the lives of Her 
Royal Highness Louisa Caroline Alberta, His Royal Highness 
Arthur William Patrick Albert, His Royal Highness Leopold 
George Duncan Albert, three of the children of Her Majesty Queen 
Victoria, as the cestui que vies to be named in the next renewal, 
in case you shall establish your right to the said reversion. 
Third ; that I am ready to pay all fines mentioned in your said 
notice into the Court of Chancery, to the credit of the said 
matter of Long v. Long, or to trustees to be for that purpose 
nominated. Fourth; I require you to inform me of the amount 
of fines claimed by you to be due. Fifth ; this notice is not to 
prejudice the proceedings in Long v. Long. 

*' Dated this 30th day of May 1857. 

" R. J. Long." 

" To Hill G. Long, Esq." 

To this the respondent did not reply ; and after the appeal motion 
in November 1858 was decided against Ellen Long, the petitioner. 



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267 



on the 30th of November 1858, aeryed on the respondent Hill Gill- 
man Long a notice referring to the notice of the 30th of May 1857, 
and requesting him to furnish particolars of the fines, interest, 
septennial fines and rent ; to which the respondent did not reply, 
sETe by saying to the person who served it that he would not renew. 

In December 1858, the petitioner caused a tender to be made 
to said respondent of a draft renewal and rent and fines, which 
he refused to accept; and the petition was filed on the 7tb 
of February 1859, praying a renewal of the lease of 1781. Hill 
Gillman Long answered the petition on the 28th of March 1859. 
The cause came on to be heard on pleadings and proofs, on the 
24th of November 1859, before the Master of the Rolls, when his 
Honor was pleased io order that the further hearing of said cause 
should stand over, and that the said petition should be amended, by 
making Mr. and Mrs. Fairtlough and their trustees parties. This 
amendment was made on the 4th of January 1860; and the peti- 
tion matter having been finally heard before his Honor the Master 
of the Rolls, on the 9th of June I860, his Honor made a decree, 
dismissing the said petition with costs, to be paid by petitioner to 
said respondents Hill Oillman Long, the Rev. Edward Fairtlough 
and Mary Annd his wife. 

From this decisiott the present appeal was brought^ 



1860. 
Ch. Appeal, 




SiMmmU. 



The AUormy-Gmwrttt^ Mr. Serjeant Smllivan^ Mf. R, R. Wmrrm 
and Mr. Exha$t^ for the appellant. 

The controversy in the cause of Limg t. Long was a fair and Argummu. 
bona fide controversy, as to whether or not Richard Long, the 
giasCOi in said deed of 1822, waa of unsound mtnd when he 
executed same, and pending said controversy, which was raised by 
petitioner's mother when the petitioner was a minor, and not a 
party to the cause. It was not reasonable to require him to take out a 
renewal from a person whose right and title to grant it was dis- 
puted, and when, if such controversy was decided in iavoor of the 
petitioner's motiier^ he would have been himself entitled to the 
ksscnr's and lessee's interest in said original lease. The service of 
the notice to renew was not done for the purpose of compiling the 
VOL. 11. 38 



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CHANCERY REPORTS. 



1860. 
Ch, Appeal, 




Argument. 



pajrment of fines, but of inducing the petitioner to acknowledge the 
respondent's title, and thus, in effect, to put an end to the question 
raised in the cause of Long r. Long. The service of a notice under 
the Tenantry Act must not be made for an indirect purpose. The 
notice of the 30th of May 1857 was a fair notice on the petitioner's 
behalf, and all fair terms were offered by it, and the petitioner 
offered to renew, and tendered the draft renewal and all rent and 
fines, within a reasonable time after the said question in contro- 
versy in said cause of Long v. Long had been decided in the 
respondent's favour. Tho time tor renewal did not begin to run till 
after the decision in Hill Gillman Long's suit. A tenant, bona fide 
believing himself to be entitled to the reversion on his lease, is 
not bound to sacrifice his reversionary interest. The old principle of 
feudal law, forfeiting a tenant's interest for claiming the reversion, 
does not apply here, for it never was a principle of this Court; and 
even if it were, there was not any disclaimer on record. If there 
were two adverse claimants of the reversion, surely liie tenant would 
be entitled to require them to decide which was entitled, before 
incurring a forfeiture, by omitting to renew ; does it make any 
difference that the tenant himself is one of the claimants? The 
petitioner has not been guilty of any fraudulent conduct, or any such 
laches, as should disentitle him from obtaining the renewal sought 
by the petition. His delay is fully and fairly accounted for ; the 
former suit of Long v. Long did not terminate till November 1858. 
Up to that time it seemed necessary for Hill Gillman Long to take 
some steps to establish the sanity of the grantor in the deed of 1822. 



Mr. Brewster, with him Mr. Serjeant Lawson and Mr. O^Bwr- 
dan^ for Hill Gillman Long. 

Even if a tenant can, after service ti a notice to renew, dispute 
his landlord's title, without forfeiting his right of renewal, which 
would be a difficult proposition to maintain, there has been in this 
case undue delay in seeking for a renewal. The petitioner, by his 
own notice o^ the 30th of May 1857, staked his right to the rever- 
sion on liie event of Hill Gillman Long's suit ; and he was bound 
to be active in seeking for a renewal as soon as that was determined. 



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259 



That suit was successful on the 11th of January 1858, yet the peti-^ 
tion here was not filed for more than a year afterwards. The sub- 
sequent proceedings in that former suit had nothing to do with the 
determination of the right of Hill Gillman Long, which was fully 
established on the 11th of January 1858. There was very great 
delay after the service of the notice of 1857, and the only excuse 
made for it is in itself a breach of duty on the part of the petitioner. 
In truth, the whole conduct of the petitioner was fraudulent, for he 
was the real actor in the former suit of Hill Gillman Long, and the 
defence of Ellen Long was in truth and substance his. 



1860. 
Ch. Appeal 

LONG 

V. 
LONG. 

ArgHMent. 



*Mr. ChaUerton and Mr. J. P. Kennsdy^ for the respondents 
Fairtlough and wife, and their trustees, were stopped by the Court. 

The following cases were mentioned and discussed in the course 
of the argument: McDonnell v. Burnett (a) i Jackson v. Saun^ 
ders(b); Doe d. Phipps v. Rolling {e) ; Burton v. Fitzsimon (d) ; 
Woody. Knox{e)i Butler v. Portarlington (fj ; Fitzgerald v. 
(yConnell(g) ; Wallace v. Patton (A). 



The LoBD Chan CBLLOR. 

In this case, which has been heard before us at considerable 
length — a length, however, for which no apology need be made, 
I must say that I never have heard facts or arguments pressed 
more earnestly ; but, on the whole case before us, #e are of 
opinion that we ought not to disturb the order made by his 
Honor the Master of the Rolls. The case has been very much 
narrowed in argument, and has, I may say, come to a single point ; 
and upon that point the Master of the Rolls decided that an 
unreasonable time has elapsed Since a demand to renew was made 
upon the tenant, by a notice within the provisions of the Tenantry 

(a) 4 Lr. EqrBep. 216. (6) 1 Sch. & Lef. 455. 

(c) 4 Com. B. 188. (d) Fin. Ben. 312. 

(e) 3 Ir. Chan.Bep. 109. (/) 1 D. & War. 20. 

(y) IJ. & L. 134; S. C, 6 Lr. £q. Bep. 455. 
(A) 1 It. Eq. Bep. 338. 



N<w. 8. 
Judgment. 



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262 



CHANCERY REPORTS. 



1860. 
Ch. Appeal 

LONG 

9. 
LONG. 



Judgment, 



he shoald still retain a right to the benefits of the relation he had 
disclaimed. I will not assert that such a case may not exist. I can 
only say that I have been unable to discover that any sach case has 
ever occurred. I do not think that the present calls for a decision 
of the abstract point, when one considers the real and important 
facts in the case, which I shall now detail : — The notice was served 
in May 1857 ; the answer to it, which is one of the most material 
documents in the case, is as follows : — '* Sib — ^In reply to your notice 
dated the 15th instant, I have to say, jfirst, that unless and until 
your right to the reversion, rent and fines therein mentioned is 
established in the matter of Long v. Long^ now pending in the 
Court of Chancery, I cannot comply with your demand." Now, in 
the first place, that puts the petitioner in entire privity, as between 
him and the respondent, with the then pending cause of Long v. 
Long. By that first paragraph he puts himself in the position of a 
person who, pro bono et maioj takes with that, and says he will 
abide by the decision in.it '<If it be determined in my favour, there 
is an end of all question between us ; I am entitled to hold the land 
in fee-simple ; but, if it be decided in your favour, then I will com- 
ply with your demand." What was that demand ? It was a notice 
requiring the payment of the fines within the space of two months. 
Now there is no allegation that two months did not afford time 
enough to ascertain the amount ; that is not the case now made, and 
it would be unfounded if it were attempted. The petitioner says 
simply that he will comply with the respondent's demand, whenever 
Long V. Long may be decided, if such decision show that he is 
bound so to do. 

The next clause of this document takes up a position which may 
be good, or may be bad, according as the events may happen, by 
naming the lives whom he wishes to have inserted in the lease, in 
case it is to be granted ; and he then alleges that he is ready to pay 
all fines into the Court of Chancery to the credit of the matter of 
Long v. Long: but he only says he is ready; he has made no 
attempt, by motion or otherwise, to carry out that readiness ; and 
then requires to be informed of the amount of fines claimed to be 



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CHANCilRY REPORTS. 



263 



due, as to which there is do i>reteDce for asserting that he was really 
ignorant, and condades by saying that the notice was not to preju- 
dice the proceedings in Long v. Long. It is impossible to read that 
notice without perceiving that it put the petitioner in entire privity 
with the former case of lA)ng v. Long^ and that he undertakes to 
abide by whatever shall be there determined in that suit about the 
right, not merely as to some particular gale of rent. When then was 
that right determined in that suit ? Beyond all doubt it was deter- 
mined on the llth of January 1858. It is said that something still 
remained to be done ; but it was merely consequential relief flowing 
from the other decision. It was merely a technical question which 
remained to be discussed ; that is, whether, in that suit, the peti- 
tioner could recover arrears of rent which accrued due after the 
testator's decease ; so that the subsequent contest was purely techni- 
cal, while the general right had been decided before. But the 
petitioner was not yet contented or prepared to abide by the decision 
in Long v. Long; and he continued to refuse payment. Even here 
it was argued that the intention of that contest was to put the 
respondent to an ejectment, or a Common Law action to recover 
those arrears — in point of fact to compel him to raise every question 
which had been decided in Long v. Long^ the cause by the result of 
which the petitioner had in his notice undertaken to abide. Under 
these circumstances, it appears to me that the litigation, after the 
llth of January 1858, was not bona fide; that, whatever the char- 
acter of that litigation may previously have been, there was no 
sound reason for delay after that date, and that the decision of the 
Master of the Rolls was consequently right, and must be affirmed. 



I860. 
Ch, Appeal, 

LONG 
LONG. 

Judgwkent. 



The Lord Justice of Appeal. 

I entirely concur with my Lord Chahcellob in the opinion 
that the petition of appeal in this case must be refused. It is unne- 
cessary for me to go through the facts of the case, which have been 
already so fully stated. I shall shortly state the ground of my opi- 
nion, that the decree of the Master of the Rolls was right. In a suit 
of this kind, for the speciflc execution of a covenant for perpetual 



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CHANCERY REPORTS. 



186a 
Ch. Appeal 







renewal, the right must be groiinded on an admission of the title of 
the defendant. The claim of the tenant can onlj be based on the 
fall power of the landlord to grant the estate sought for. It is, 
therefore, indispensably necessary for the tenant to admit the land- 
lord's title in its entirety, and in the most unequivocal manner. He 
cannot, in such a suit, contest a' right on the admission of which his 
own is wholly founded. It would be, in my opinion, a plain viola- 
tion of this pnnciple to allow him to allege or plead as a justification 
in excuse for the delay, in its nature fatal to his case, a litigation in 
which he had unjustly and unsuccessfully contested the very title 
the admission of which is the indisputable condition of the relief he 
seeks for. 

Court of Appeal Hearing Book^ 1,/. 383. . 



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CHANCEBY REPORTS. 265 



1860. 
CkoMenf* 



KNOX tr. MAYO. 
(In Chancery). 



Nw. 14. 



This case came before the Court on a return to a writ of partition, The respond- 

ent in a pftrti- 
and the further directions reserved on the former hearing, at which tion suit 

costs also were reserved. The case is reported supra^ vol 7, p. 563. petitioner's 

daim, alleging 
that the peti- 

Mr. Henry H. Hamilton and Mr. Carleton, for the petitioner, ^^^"^y 
contended that the respondent, Lord Majo, ought to pay to the PJ^^^ ^^ ^^ 

petitioner the costs occasioned by his having disputed the peti- ^^^ Conn. 

derahle ex- 
tioner's title. The respondent had occasioned considerable additional penM was thos 

imposed on 
expense at the hearing, and in the preparation of the case. In the the petitioner; 

* but that ex- 

Court of Appeal, the costs of the appeal had been awarded against pense was en- 
Lord Mayo. It was settled that a respondent who litigated the before and at 
petitioner's title in a partition suit might be compelled to pay the -jA^ ^^ ^^ 
costo occasioned by such litigation: Lyne v. Lyne(a)i Hill v. pa,!^^^ ^ 
Fullbrooke (b) ; Morris v. Timmin* (c). St^l2S^^" 

and costs re- 

serred. At the 
Mr. Serjeant Lawson and Mr. Todd^ contra. hearing on the 

retnm to the 
The rule respecting costs in a partition suit is well settled. Each writ of partis 

tition and far- 
party must bear his own costs up to the first hearing, and the subse- ther directions 

qnent costs must be borne rateably. The cases cited only show that the petitioner 

any expense not a portion of the costs of preparing for the first hear- ^^ ^ y^ ^l^ 

ing, occasioned by one of the parties, may be thrown upon him. In ^^ ^iljy^^ 

Lyne v. Lyne^ the defendant had insisted on having an inquiry ^|? ^^J!^^a 

directed at the first hearing. In Morris v. Timmins. the case was including the 

first hearing. 

properly one of specific performance, and the xmrtition relief merely 

Arguments 
incidental In Hill v. Fullbrooke^ the costs which the defendant 

was obliged to pay were 'those of an account directed at the first 

(a) 21 Beay. 318. (6) Jac 574. 

(c) 1 Beay. 411. 
VOL.11. 34 



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1860. 
Chancery, 




Argument 



hearing, in consequence of his resisting the plaintiff's claim. Here» 
the only additional costs subsequent to the first hearing were those 
of the appeal, which we were directed to pay. Even if a case oonld 
at all be made for giving extra costs to the petitioner, the direction 
for so doing must be given at the first hearing, when the Judge has 
all the facts before him. 



Judgment. The LoBD ChavceiXob said that he saw no reason to depart 

fi*om the usual rule as to costs in partition suits. Uader any cir- 
cumstances the petitioner must have proved his title. 

General Hearing Book^ 26, /. 288« 



A judgment 
reooyered in 
1819, and 
never revived 
QOf re-do(diet- 
ctd, must be 
postponed not 
onlj to the 
gales of a 
rentcharge 
created by 
the jnd^ent 
debtor in 
I827» and as- 
signed in 1Q41, 
whidi accmed 
due after that 
period, but to 
the arrears of 
it which were 
then due, an4 
wbich were 
Included in the 
assignment. 

Statement. 



WALCOTT tr. SMYTH- 

This cause came before the Court upon exceptions taken by William 
CDell to the Master's report, under a decree, dated the 21st of 
November 1842, by which it was referred to him to take an accoonl 
of the sums remaining due to the plaintifis on foot of their saveral 
demands, and an account of the real and personal estate of William 
Smyth, deceased, and of all charges and ineumbranoes affecting the 
same. ^ 

The Master, by his report, filed on the 2nd of July 1860, found,, 
amongst other things, that by deed, bearing date the 1st day of 
August 1827, and made between the said William Smyth, of the 
first part, John Walcott, of the second part, Samuel Walcott, of the 
third part, Thomas Lyons Walcott, of the fourth part, and Edward 
Wright Seymour, of the fifih part, the said William Smyth, in oon- 
sideration of £950, granted unto the said Thomas Lyons Walcott an 
annuity or yearly rentcharge of £120. 10s. 6d., charged upon the 
lands in the decree mentioned, for the life of one Thomas Bramll, 
and to be payable half-yearly, on the 24th day of June and the 24th 
day of December ; and that thereby also a term of ninety-nine years 



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CHANCERY REPORTS. 



267 



in the said lands was created and vested in Edward Wright Sej- 
moor, for secaring the same. The Master also found that, by an 
indenture, bearing date the 15th day of July 1841, and made 
between Samuel Walcott, of the first part, W. H. L. Walcott, of 
the second part, Mincbin Walcott, of the third part, Anne Walcott^ 
executrix of the said Thomas Lyons Walcott, of the fourth part, 
and John Crossley Seymour, of the fifth part, in consideration of 
£1250, the said annuity, and all arrears thereof, and a judgment 
collateral thefewith, were assigned by Samuel Walcott and Anne 
Walcott to John Crossley Seympur, by way of mortgage. And the 
Master, by his report, also found that the said Thomas Brazill, the 
cestui que vie of the annuity, died about the 24th of December 1841, 
and that at his death £1113 remained due on foot of the annuity ; 
£1053. Is. Id. due before the deed of July 1841, and £60 sub- 
sequently. The Master further found that a judgment for £660, 
obtained in Hilary Term 1819, against William Smyth, and vested 
in the said William 0*Dell, not having been revived or re-docketed, 
was the twenty-fourth charge on the lands, and should be postponed 
to the arrears of annuity assigned in mortgage by the said deed of 
the 15th of July 1641. 

To this report William O^Dell filed several exceptions. The first ; 
that tko judgment of Hilary Term 1819 should have been found to 
be the third charge on the lands. The second; that the Mas- 
ter should have reported that the annuity ceased on the death of 
Thomas Brasill, and that the arrears thereof were a charge on the 
lands only for the term of ninety-nine years, vested in Edward 
Wright Seymour ; and that, inasmuch as said term was not assigned 
by the deed of 1841, the judgment of Hilary Term 1819 was a 
charge on the lands prior to the annuity, and to all other charges, 
save No. I and No. 2. . The third ; that only the arrears of antiuity 
which accrued due subsequent to the deed of July 1841 should have 
been reported prior to the judgment of Hilary Term 1819. The 
fourth; that, inasmuch as the deed of 1841 was executed /i«iu20ii/« 
lite^ it could not operate to postpone the judgment of Hilary Term 
1819. 

The other exceptions were not material 



1860. 
Chancery* 




Statement. 



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CHANCERY REPORTS. 



1860. 
Chancery, 

^ , f 

WAI.COTT 

O. 

SMTTH. 

Argument. 



Mr. F. W. Walsh and Mr. PaUes^ in support of the exceptions. 

The deed of 1841 cannot in this case give any higher right to 
the assignee than the original annuitant had. It is true that, upon 
another portion of this very deed, it was decided in WalcoU v. Con' 
don (a), that a sub-mortgagee is entitled to the benefit of the Re- 
docketing Act, although the original mortgagee may not be in a posi- 
tion to set it up. This, however, is quite a different case. What was 
de facto assigned here was not an estate or interest in the land, 
but a mere right of suit for the arrears of annuity which had 
then accrued due. It might have been very different if the term 
had been assigned to secure the arrears; then there would have 
been an estate in the land, but the arrears of a rentcharge can- 
not be so described. Malcolms v. Charlesworth {h) goes further 
than is required to support those exceptions ; for it shows that 
an assignment of a legacy charged on land is not affected by the 
English Registry Act; and though the applicabih'ty of that case 
to the more stringent Registry Acts of this country has been 
questioned, there seems no reason to believe that its authority is 
shaken in England. Then the words of the Re-docketing Act 
are not so strong as those of the Irish Registration Act ; and thus, 
assuming WalcoU v. Condon to be law, the present case is quite 
distinguishable. The annuity here was purchased pendents 
Ikcj and can give no higher title than the assignor had: Hunter v. 
Kennedy (c); Murtagh v. TisdaU{d)\ BenneU y. Bernard {e)v 
Bellamy v. Sabine (f). 



Judgment. 



Mr. /?. R. Warren^ contra, was stopped by the Court, having 
mentioned Low^s Estate {g). 

The LoBO Chancbixor. 

I think that Mr. Seymour is entitled to the benefit of the pro- 
visions of the Re-docketing Act. The only question really is. 



(a) 3 It. Chan. Bep. 1. 
(c) 1 Ir. Chan. Bep. 148. 
<«) 10 Ir. Eq. Bep. 584. 



(6) 1 Eee. 65. 

((Q 3 Ir. Eq. Bep. 85. 

00 IDeG. &J. 566. 



is) 4 Ir. Chan. Bep. 97. 



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CHANCERY REPORTS. 



269 



whether the arrears of the annuity can be said to be a right, 
title, estate, or interest in Und ? and it would be very difficult to 
assert that they cannot be so described. The case of Walcott v. 
Condon (a) was decided by Lord Chancellor Blackbume on this 
very deed of the 15th of July 1841, which comprised not only 
the annuity of 1827> but a mortgage of 1825 ; and his Lordship 
there held that Mr. Seymour was, as assignee of the mortgage, 
entitled to the benefit of the Act, as between him and the judg* 
ment creditor of the mortgagor, though Walcott, the immediate 
mortgagee, would not have been. I cannot distinguish the pre- 
sent case from Walcott v. Condon. Here there is the grant of a 
rentcharge, a perfectly legal grant The arrears also remain a 
legal demand upon the land, secured by the term, which, to be 
sure, was not assigned by the deed ; but the trustee of the term 
is trustee for the true< owner of the arrears, and, if the assignee 
be the true owner, he is a trustee for him. I cannot distinguish 
this from the case of the mortgage ; but Mr. O'Dell can, if so 
advised, raise the general question by appeal. I think the Master^s 
report right, and founded upon right principles ; and I must, there- 
fore, overrule the exceptions, with costs. 

(a) 3 Lr. Chaa. Bep. 1. 

jReg. Lib., 26, /. 303. 



1860. 




JudgmmU. 



ADAMS r. GAMBLE. 

This case came before the Court upon a cause petition, and answer<» 
ing affidavits, under the circumstances following. 

By a lease dated the 1 0th of April 1791, the lands of Anticor 
were demised to John Adams, for three lives renewable for even 
John Adams made his will,, dated the 26th day of February 1799) 
which contained the following devise : — *' I also leave and bequeath 
to my daughter Isabella Adams the leases of all the lands which I 



the. 3. 



of 



An estate 
dMcendible 
freehold, fet- 
tled to the 
leparate use 
of a married 
woman, can* 
dot be TaUdly 
convejed by 
her without 
fine or statote 
deed. 



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CHANCBRT REPORTS. 



I860. 




now ppsBeM, to her, to have and to hold, enjoy and possess, and to 
her heirs and assigns for ever, reserving it in her own power from 
any kosband or husbands which she shall marry or be married to.''. 
John Adams died shortly after the date of his said will ; and in 1801 
Isabella Adams intermarried with one James Gamble ; there was no 
issue of that marriage ; and in 1842 Isabella Gamble died, leaving 
her husband her surviving. By an indenture dated the 30th of 
April 1822, and niade between Sarah Leslie of the one part, and 
the said James Gamble and Isabella Adams his wife, of the other 
part, the lease of the said lands of Anticor was renewed to the said 
James Gamble and Isabella his wife, for three additional lives,^ to 
hold the same to the use of the said Jaroes Gramble for life, and, 
from and after bis decease, to the use of such person or persons as 
the said Isabella should by deed or will appoint ; in default of ap- 
pointment, to the use of the said Isabella, • her heirs and assigns. 
By de^ dated the 23rd day of May 1835, and made between 
the said) Isabella Adams, otherwise tjhim'ble, of the one part, and 
thie said James Gamble of the other part, the said Isabella pro- 
fessed to convey the lands of Anticor to the said James Gamble. 
James Gamble died in 1858, having devised his interest in the 
said lands to the respondent. The present petition was filed by 
the heir-at-law of Isabella Adams, and prayed that the renewal to 
James and Isabella Gamble might be declared a trust for him ; 
and for a conveyance of the lands comprised in it. 



Mr. J, E, Walsh and Mr. Harrison^ for the petitioner. 
Argument, The only question in this case is respecting an estate of freehold, 

settled to the separate use of a married woman, whether she can 
dispose of it as if she were B,feme sole f The earliest case on the 
subject is Churchill v. Dibben (a), where the question was as to 
lands purchased by the wife with personal estate which was her 
absolute separate property, and which she was held not to be able to 
deal with as if she were a feme sole. The analogy of legal estates 
was also applied in the case of Peacoch v. Moneh(6}. The readoa 



(a) 2 Ken., pt 2, 85 ; S. C, 9 Sim. 447, n. (5) 2 Yes. 



192. 



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CHANCERY REPORTS. 



271 



of the disUnolioQ between realty and personalty in this respect is, 
that it js only the marital right of the husband which the separate 
Qse is intended to exclude. It does not otherwise modify the nature 
of the wife's property ; so she can dispose of chattel property, in which 
only she herself and her husband are interested ; but in the case of 
realty, the heir has a title which can only be defeated by fine or 
statute deed. That is the scope of the old authorities, and they are 
followed in the very reoent cases of Harris v. Moii (a) ; Neweomen v. 
ffassard(b); Moore v. Morris (e). Lassence v. Tiemey{d)y and 
Field y. Moore («), show that in no case will the law dispense with 
the formalities imposed by statute on the disposal of an estate by a 
married woman : Goodiil v. Bingham (f) ; Doe d. Siepkems v. 
SeoU {g). If a woman has a separate estate, with an express power 
in addition, she can dispose of the property by the aid of the power ; 
but otherwise she cannot, if it be held for any greater interest than 
her own life. Baggott v. Meux(h) only shows that a married 
woman can have separate interest in fee-simple estate. 



I860. 

V-— V ' 

ADAMS 

V. 

OAKBLB. 

ArgmmwU 



Mr. Hugh Law and Mr. May^ contra. 

It is now the settled law of this Court, that a woman, if not 
expressly restrained from anticipation, can dispose of all property 
settled to her separate use, as if she were a feme sole. That has 
been constantly held here, from the decision of Grigby v. Cox (t), 
and Pyhus v. Smith {k\ to the present time ; and Tulleti v. Arm^ 
strong has at last settled the doctrine respecting restrictions or 
anticipations upon a rational and intelligible basis. Wilcox v. 
Hannyngton (/) is an express decision on the power of a married 
woman to bind her separate fee-simple estate, and is, therefore, 

(a) 14 Beay. 169. (h) 4 Ir. Chan. Bep. 268. 

(c) 4 Drew. 33. (rf) 2 H. & Tw. 115. 

{€) 19 Beay. 134 ; S. C, 2 Jnr., N. S., 150. 
09 I B. & P. 192. 
{g) 4 Bing. 506; 8. C, 2 Moo. & P. 317. 

<A) 1 CoU. 138 ; S. C. 1 PhiL 627- * 

(0 1 Vw. sen. 517. (A) 1 Vo«. j^m. 195. 

(0 5 Ie> Chan. Bsp. 38. 



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1860. 
Chaneery> 




Argument, 



even a stronger case than the present, where the claimant b 
merely a special occapant. Wright v. Cadogan (a), Rippon v. 
Dawding{b)f are also express authorities for the respondent, the 
devise of a woman seised of separate estate haying been established 
against her heir: Major v. Lansleg{c). In Power ▼• Bailey {d)^ 
an annnitj granted by a married woman out of her separate estate 
was established. Bagot v. Meux («) carries the respondent's case 
the entire way ; for if it is necessary to insert a condition against 
alienation in a settlement of real estate, and if it can have any effect, 
what is the distinction between separate interest in realty and per- 
sonalty? The distinction taken between realty and personalty is 
unfounded. The Court of Equity regards the interest of the wife 
more than that of the heir. 



Dee. 3. 



The Lord Chancellor. 

The petition in this case has been filed in order to establish the 
petitioner's right to certain lands, which were devised by John 
Adams to his daughter Isabella Adams, *' to have, hold, enjoy 
and possess, and to her heirs and assigns for ever, reserving 
it in her own power from any husband or husbands whom she 
should marry." The petitioner claims to be heir-at-law of Isabella 
Adams. The respondent relies upon a deed executed by her during 
her coverture ; and he submits that by this she had conveyed the 
estate which she held in quasi fee; and that, consequently, the 
heir is barred. Thus, the question has been raised, and discussed at 
the hearing very fully, whether a married woman having property 
in fee, settled to her separate use, but not subject to any special 
power of appointment, could, by an instrument not acknowledged 
under the statute, convey it so as to defeat her heir ? The petitioner 
contends that, according to well established doctrines of law, she 
could not do so. The respondent, on the other hand, says that 
such never was the law, or that, if it ever was, the course of 
modem decisions has been to the contrary. 

(a) 1 B. P. C. 486. (b) Amb. 505. 

(e) 2B.&M.365. (</) 1 B. &. B. 40. 

(e) 1 CoU. 138; S. C, on Appeal, 1 Fh. 627. 



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CHANCERY REPORTS. 



273 



I have exaipined all the decisions, and I must say that I have 
been unable to find any authority which affirms the proposition that 
a married woman so circumstanced can dispose of the estate, other* 
wise than by fine or statutory deed. The current of authorities 
and opinions, as shown by the text-books and the dicta of Judges, 
is almost uniformly to the contrary; and there is not even a dic- 
tum of modern date in its favour. Tl\e first authority distinctly 
in point is the anonymous case cited in Peacock v. JtfonA(a), and 
it is almost an express decision on this case. It was a case in 
which real estate of a wife was secured to her separate use by a 
settlement executed before her marriage, which did not contain 
any power of devising it; and it was determined that her will 
was void as to this real estate, and that the estate must go to her 
heir-at-law. The distinction is taken in Peacock v. Monkj that 
she can dispose of an estate so limited, if she has also an ex- 
press power given to her by the settlement, either by way of 
trust, or of power over a use. In Churchill v. Dibben(b)^ it 
was held that a married woman having real property settled to 
her separate use, out of the savings of which she purchased other 
real estate, which would of course be also held for her own sepa- 
rate use, was. not entitled to dispose of this newly acquired 
property. It seems to me that these authorities proceed on the 
very point and decide it, unless they have themselves been over- 
ruled by subsequent cases. 

The doctrine of Courts of Equity, in relation to a wife's separate 
estate, is founded on this, that they will protect the wife's separate 
property from the power of the husband ; but the husband never 
could dispose of the wife's fee-simple property without her concur- 
rence, beyond his life interest ; and, therefore, the reason and 
principle of the dicta and decisions respecting separate estate have 
BO application to property of which the wife is seised in fee. That 
reason and that principle are given with accuracy in Tullett ▼. 
Armstrong (c) : — '* The estate for separate use, as sanctioned by 

(a) 2 Ves. 192. 
(6) 2 Lord Kenyon, pt. 2, p. 85; S. C, 9 Sim. 447, n. 
(g) 1 Beav. 1 ; t;u(e p. 22. 
VOL. 11. 35 



1860. 
Chancery, 

' . ' 

ADAMS 

r. 

GAMBLE. 

Judgment. 



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274 



CHANCERY REPORTS. 




I860. Courts of Equity, has its peculiar existence only in the married 
Chancery. 

State. It operates as a protection to a married woman, agunst the 

legal power over a wife's property, which is vested in her husband ; 
it acts in contravention and control of the legal right of the hus- 
'^udgmaii, htJi^ ; and, as against his legal power, it is a sufficient protection ; 
but the power of alienation remaining in the wife, the separate 
estate unfettered is no protection against the moral influence of the 
husband." Now, it will be observed, that that passage has no 
application to the destination of the property after the death of the 
wife. Another case was referred to — Harris ▼• MoU{a\ which, 
although not an express decision of the point, goes in the same 
direction ; it was the case of an estate in fee devised to 9k feme covert 
for her separate use. She entered into a contract for sale, and died, 
having devised the estate to her husband, who sued the purchaser 
for specific performance, which the Court refused to decree, think- 
ing the case too doubtful to enforce the title upon a purchaser. So 
far as that case goes, it is in confirmation of the doctrine laid down 
in the earlier cases. Then in this country we have the observations 
made in Neweomen v. Hassard{b)^ by the Master of the Rolls, who 
says : — '* The only case, of which I am aware, in which ^feme covert 
to whom real estate is conveyed or devised, for hev separate use, 
was obliged, before the statute, to convey her estate by a fine, was, 
where she was seised in fee ; and, in such case, it has been consi- 
dered that, to bind her heir, she should levy a fine, and be examined ; 
and, since the Statute for the Abolition of Fines and Recoveries, the 
provisions of the sections referred to should, I apprehend, be com- 
plied with;" and then he goes on to say that the doctrine is 
otherwise as to estates in lands of which she is seised for life only, 
to her separate use. In the case of Morris v. Morris (c), befi>re 
Vice-chancellor Kindersley, he says that — <' An absolute gifk of 
personalty, to the separate use of a married woman, gives her the 
power to deal with it, independently of her husband, either by deed 
or win, which is not the case with respect to fee-simple and real 
estate.'^ I may next mention 2 Roper ^ Husband and Wife, p. 186, 



(a) 14 Beav. 169. 



(6) 4 Ir. Chan. Rep. 274. 



(c) 4 Drew. 38. 



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where it ia 8aid that — *' A limitation of real estlite to the wife in 
fee, for her sole and separate use, without more, will not enable her 
to dispose of it during the manriage, otherwise than by fine and 
recoTery ; because no power having been given to her by the instru- 
ment to make any disposition of the property, she can only do so by 
the mode prescribed by law ; and, if she omit to do so, her heir will 
take the estate." Doe d. Siepkens v. Scoti (a) is a clear authority 
to the same effect, so far' as a Court of Law is concerned. Thus, as 
I have said, the current of authcurity is all the same way, respecting 
the power of a married woman over her real estate in fee-simple, 
without levying a fine, or executing a deed under the statute- 
There are, to be sure, general expressions respecting the powers of 
femes ecvert over property settled to their separate use ; but, when 
they come to be examined, they are found to relate either to perso- 
nal property, to estates for life, or to the operation of deeds during 
the life of the woman, or to cases where there was a specific power 
added to the limitation. Such are the cases referred to in the note 
to the general statement in 1 Sugden on Powers^ p. 206^ where the 
writer says : — *^ When a married woman has property settled to her 
separate use, without any restraint on alienation, she is deemed a 
feme sole^ and may dispose of it accordingly." For that proposition 
he refers to Bell v. Hyde{h)\ Norton v. Turv%U{e)i Grighy v. 
Cox(d)y and Hulme v. TennanUe); as to each of which some of 
the distinctions I have alluded to will be found to apply. So, in 
Pybue V. Smith (f)^ cited for the respondent, there were, special 
powers of appointment of the estate reserved to the wife, and she 
was alive at the time ; and, in TuUett v. Armstrong (^), the estates 
were only given to the lady for her life. 

The case of Power v. Bailey (A) was also much relied on by the 
Counsel for the respondent, as an express decision in their favour ; 
but^ on examination, it will be found to admit of the same distinc- 



1660. 

CAoneory. 

^ ■ ' > * 

ADAMS 

V. 

JudgMUMK 



(a) 4 Bmg. 505. (b) Tnc Ch. 328. 

(c) 2 P. Wms. 144. (<0 1 Ves. 517. 

(e) 1 Bro. G. C. 16; S. C.» 1 W. & Tn. Ii. Cfw. 3d4. 
09 3 B. C. C. 340. (g) I Beav. 1. 

(A) 1 B. & B. 49. 



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CHANCERY REPORTS. 



1860. 
Chancery. 




Judgment* 



tion. The estate of the wife were vested in trustees, for her sole 
and separate use, and so that she should have full power and dominion 
over the same. The wife granted an annuity (reciting her power 
over the property) ; and it was held binding on her second husband, 
she herself, however, being alive at the date of the decree. Stead 
V. Wilson (a) was a case of a life estate only in the wife. 

The respondents, however, mainly relied on the case of BaffgoU 
V. Meux{b\ as actually deciding and settling this question. The 
point decided in it was that, on a devise in fee to a feme covert^ 
for her separate use, a restraint against alienation could be imposed 
during the coverture; and it was argued from this that the case 
imported that, without such a clause, an absolute right of alienation 
in fee would exist. The case decides no such proposition. The 
alienation actually made was held void as against the wife, who was 
living at the time of the decision ; and the* whole import of the 
decision is no more than this, that, so far as the devise gaye her 
power to deal with the estate as B,feme sole^ so far a restriction on 
alienation might be imposed : but as by law, on all the authorities I 
have referred to, she could not dispose of such ten estate in fee-simple 
as a feme sole^ the restriction on alienation would be unnecessary 
or inapplicable, and would be limited to that w^ch she had the 
power to do, though, within that range, it would be vdid enough. 
The observations of Lord Lyndhurst, in giving judgment, may be 
considered as implying that his opinion would be in favour of the 
respondent here ; but the point was not strictly before him ; and, 
whatever may be the tendency of modem decisions to enlarge the 
position or power of hfeme covert^ as to her separate estate, and the 
import of general expressions I have alluded to, I cannot consider 
the apparently settled doctrine to which I have adverted as shaken 
or overruled. If it is to be so dealt with, it must be by higher 
authority than mine. I must, accordingly, make a decree in favour 
of the petitioner ; and, as this is a mere ejectment suit, the decree 
must be with costs. 



(a) 2 Beay. 245. 
(6) 1 CJol. 138; S. C, on appeal, 1 PhU. 627. 



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Declare that the deed of the 23rd day of May 1885 waa ino- 
perative to pass any estate or interest in the premises 
therein comprised ; and that the petitioner, as heir-at-law 
of Isabella Gramble, otherwise Adams, is now entitled to the 
premises demised by the lease of the 10th of April 1791 ; 
and let an injunction (if necessary) issne, to pat the said 
petitioner into the possession thereof. Refer it to the Mas- 
ter to take an acconnt of the rents and profits of the said 
premises in the said lease comprised, from the death of the 
said Isabella Gramble, in the month of February 1 842, after 
all just credits and allowances ; and let the respondent pay 
to the petitioner the amount which the Master shall so find 
due, within one month from the date of the Master*s report, 
together with the costs of the suit, up to and including this 
hearing ; and let the costs of the account in the Master's 
office be in the discretion of the said Master. 

General Hearing Book^ 26,/. 347. 



1860. 
Chancery, 

' , ' 

ADAMS 

V. 

OAMBLS. 

Order. 



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1860. 
Ch, Appeal. 



Court o{ appeal in tfjftancerp. 

In re FITZGERALD'S ESTATE ; 
Ex parte ANDREW COMYN, AppellatU. 



Aprils. 



In an affidayit Fbahcis FiTZGERALD, who was possessed of certain leasehold 
iled under the . . , . ^ 

rrorisions of premises m the town of Gal way, execnted a bond and warrant, 

Jon of the 13 conditioned for the payment of £700, upon which a judgment 

•\ 29, for £*6 ^*® entered in Hilary Term 1840. The judgment was registered 

'^^^^ a i" ^®^^» ^^ re-registered on the 21st of July 1856, it having, 

;°^^^J^^ in 1854, become vested in the appellant. 

^*^^d °^ ^^ ^®^^' Patrick M. Lynch obtained a judgment against Francis 

ant's last ' Fitzgerald, in the Court of Common Pleas, for the sum of £894. 

known place 

of abode, as lOs. LOd., besides £2. 2s. 8d. costs, and registered the same as a 

'•late of the 7^ 

town of Gal- mortgage, under the provisions of the 13 & 14 Ftc, c. 29. 

«rav but noip 

of the county Francis Fitzgerald died in 1857 ; and, on the 8th of March 1859, 

was held hi. Patrick M. Lynch filed a supplemental affidavit, under the provi- 

bdS^^too " 8io°8 ^^ t^« 21 & 22 Vic, c. 105. 

yagne. j^y^^ Redington had obtained a judgment against Francb Fitz- 

Thesameaffi- o -o 

davit stated the gerald, in Trinity Term 1855, and registered the same as a mort- 
amonnt of the 

judgment to g&ge on the 25th of October 1855 ; but the affidavit was defective, 
be £894 and 

£3. 28. 8<L for ^^ i^ct containing a substantive statement of the plaintiff's last 

Sbe sum m<^ known place of abode. The estate of Francis Fitzgerald was sold 

tTlttl^^ in the Incumbered Estates Court on the 8th of April 1859 ; and 

S^^^^i ^^^ *^® settlement of the final schedule of incumbrances. Judge 

^^ep^tj^"* Hargreave ruled that the supplemental affidavit filed by Patrick M. 

added to the Lynch was invalid, having been sworn subsequently to the death of 
costs in the 

affidayit.— the conusor ; but that his original affidavit was sufficient, and that 
Held^ to be 

snch a yari- his judgment was, therefore, entitled to be paid in priority to the 
anoe as invali- 
dated the affi- judgment of the appellant. 

^ From that decision the present appeal was brought, upon the 

Statemmit. grounds, among others, that the affidavit originally filed by Patrick 



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M. Lynch was defective: firstly; because it did not contain any 
sufficient averment of the .defendant's last known place of abode; 
secondly ; because the sum of £3. 2s. 8d., mentioned therein as 
having been recovered for costs, did not correspond with the record, 
upon which the sum for costs appeared to be £2. 2s. 8d. 
Lynch's original affidavit ran as follows: — 

'< Common Pleas. 



1860. 
Cb, Appeal, 



Patrick Mark Lynch, of Ren* 
more-lodge, in the county of 
the town of Galway, Esq., aged 
thirty years and upwards, the 




Statement, 



«* Patrick Matk Lynch, of Benmore-lodge, . 

in the county of the town of Galway, 

Esq., Plaintiff; 

Francis Fitigerald, late of the town of 

Galway, but now of the comity of 

Dublin, Defendant 

phdntiff in this cause, maketh oath and saith that the defendant, by 
his name and description of Patrick Mark Lynch, of Renmore-lodge 
in the county of the town of GWway, Esq., did, on the 27th day of 
February, in the year of our Lord 1856, and in or as of Hilary 
Term, in the said year of our Lord 1856, obtain a judgment in Her 
Majesty's Court of Common Pleas in Ireland, against Francis Fitz- 
gerald, late of the town of "Galway, but now of the county of 
Dublin, the defendant in this cause, by the name and description of 
* Francis Fitzgerald, late of the town of Galway, but now of the 
county of Dublin,' for the sum of £894. lOs. 01. sterling, besides 
£3. 28. 8d. for costs, as by the records of said Court may more fully 
appear. This deponent further saith that, to the best of deponent's 
knowledge, information and belief, the said defendant in this suit is, 
at the time of swearing this affidavit, seised and possessed of, or has 
disposing power, which he may, without the assent of any other 
person, exercise for his own benefit, over and issuing out of certain 
tenements, hereditaments and premises hereinafter mentioned ; that 
is to say.— [Here followed a description of the lands sought to be 

i^ff^ted.] Deponent further saith that the sum of £894. 10s. Od., 

besides the sum of £3. 2s. 8d. for costs, aforesaid, so secured by said 
judgment, as aforesaid, with interest thereon, still remains justly 
due and owing to this deponent, on foot of said judgment, over and 
above all just and- fair allowances, and that said judgment is still in 
full force, virtue and effect in law." 



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CHANCERY REPORTS. 



1860. 
Ch. Appeal. 

^T^ ' 

In re 

FITZQSR- 

axd's 

ESTATE. 

Statement. 



6UPPLEMENTAJL AFFIDAVIT. 

"/n the Court of Common Pleas. 



" Patrick M.J.yiich, of Renmore, in the county Patrick Mark LvDch, of 
of the town of Galwaj, Esq., Plaintiff; 

Francis Fitzgerald, late of the town of Galway, 

bat now of the county of Dnblin, Esq.» 
Defendant 
And the Acts of 13 8c 14 Vic., c 29, and the 

21 & 22 Vic,, c 105. 



Renmore, in the county of 
>. the town of Galway, Esq., 

aged forty years and up- 
/ wards, the plaintiff in 



the cause in the title hereof named, and hereinafter mentioned, 
maketh oath and saith that that he this deponent obtained a judg- 
ment in said cause on the 27th day of February 1856, in or as of 
Hilary Term 1856, in Her Majesty's Court of Common Pleas in 
Ireland, against Francis Fitzgerald, late of the town of Galway, 
Esq., the defendant in said cause, in the title hereof named, and 
hereinafter stated, for the sum of £894. 10s. Od. sterling, besides 
£3. 2s. 8d. for costs, as by records of said Court may appear. Saith 
that the cause in which he obtained said judgment is entitled 
* Patrick Mark Lynch, of Renmore, in the county of the town oi 
Galway, Esq., plaintiff; and Francis Fitzgerald, late of the town of 
Galway, but now of the county of Dublin, Esq., defendant.' Saith 
that the deponent is an Esquire, and that his present and usual place 
of abode is at Renmore, in the county of the town of Galway ; and 
saith that the said Francis Fitzgerald, the defendant in said cause, 
and the person whose estate is intended to be affected by the regis- 
tration of this affidavit, is now deceased, and was aii Esquire, and 
that his usual and last known place of abode was at George's-place, 
in the county of the city of Dublin ; and saith that the name ' Pat- 
rick Mark Lynch ' is the plaintiff in said cause, and the party who 
obtained said judgment is the deponent's proper name. This depo- 
nent further saith th^t, to the best of his knowledge and belief, the 
said^Francis Fitzgerald was, at the time of the entering and regis- 
tering of the said judgment, and at the time of his death, seised or 
possessed, at Law or Equity, of, or had disposing power which he 
might, without the assent of any other person, have exercised for 
his own benefit, over certain lands, tenements, hereditaments and 
premises, hereinafter mentioned. — [Here followed the description of 
the lands.] — Saith that the sum so secured by the said hereinbefore 



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mentioned judgment, besides interest, and £3. 28. 8d., for costs, still 
remains justly due and owing to the deponent; and saith that said 
judgment is still in full force, virtue and effect in law. — Sworn," &c. 

Mr. Brewster (with Mr* Sherlock), for the appellant 
The 13 <fe 14 Vic, c. 29, gave to judgment creditors the power; 
of converting their judgments into mortgages, by filing the affidavit 
prescribed by the 6th section. This was the first legislative 
enactment, in this country, which gave a creditor the power of 
transferring to himself the lands of his debtor, without any notice 
to the latter, or any act done by him in that respect. While 
conferring on the creditors this enormous power, the Legislature has 
most properly guarded the rights of the debtor, by requiring a very 
particular and precise form of affidavit to be filed, and the Courts 
of Law have strictly construed such affidavits : McDowell v. 
Wheatley (a) ; Crothie v. Murphy (6). Lynch's affidavit is de« 
fective, because it does not contain any positive averment of the 
defendant's last known place of abode ; or if it does, the averment 
is insufficient on account of its vagueness. The affidavit is also 
defective in not stating correctly the amount of the sum recovered 
for costs. It may be that the place of abode mentioned conveys 
sufficient information, but that is not the question. In McDowell 
v. WhecUley, Monahan, C. J., is reported to have said (e), '* If an 
Act of Parliament requires that a particular thing shall be done 
. in a particular way, for a particular object and purpose, it is not 
for a Court of Law to inquire whether the same object might not 
be attained another way." The description ^< now of the county 
of Dublin" is entirely too vague, it might nearly as well have 
been ^' now of the kingdom of Ireland." In Fonblanque v. Lee (d), 
it was held that where, upon the registration of a bill of sale, the 
affidavit required by the Bill of Sale Act (17 & 18 Vic^ c. 55) 
omitted the description of the residence and occupation of one of 
the attesting witnesses to the bill of sale, the bill of sale was, by 
reason of such omission, rendered void as against an execution 



1860. 
CA. Appeal 




ArgununU 



(a) 7 Ir. Com. Law JR^. 562. 
(c) p. 569. 
VOL. 11. 



(b) 8 Ir. Com. Law Rep. 301. 
(d) 7 Ir. Com. Law Rep. 550. 
36 



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CHANCERY REPORTS. 



)860. 
Ch, AppeaL 

In re 

FiTzasm- 

ald's 

ESTATE. 
Argumeni. 



creditor. This defect of vAguetiess coald not be cured bj the 
supplemental affidavit; for the 21 & 22 Vic, c. 105, under whose 
provisions such supplemental affidavits are filed, was never intended 
to give any power to remedy substantial defects; it merely gives him 
power of stating by substantive avernient that which in the original 
affidavit had been stated by way of recital. 

The sum stated in the affidavit as recovered for costs is £3. 
2s. 8d. ; the sum mentioned on the record is £2. 2s. 8d. This is a 
distinct variance. The amount of Variance is immaterial; there 
is, in fact, therefore, no such judgment on the the record as that 
mentioned in the affidavit. The proper plea would be nul tiel 
record. 



Mr. P. J. Blake and Mr. M. McrriSj for P. M. Lynch. 

The place of abode is stated in this affidavit with as much pre- 
cision as was possible under the circumstances. — [The Loan 
Chancellor.'— It is not stated at alL **0f the county of Dublin ** 
is no description of the place of abode, within the meaning of 
the Act. tt might nearly as well have described him as of England, 
Ireland, or Scotland. A man's place of abode means where he 
may be found.] — ^In MPDoweU v. WheatUy there Was no positive 
averment of the place of abode at all, there was only an aver- 
ment by way of recital ; that is not so here : there is a positive 
averment, and it is submitted that that averment is sufficient. Fon- 
blangue v. Lee is not analogous, for the Bill of Sales Act requires 
greater accuracy as to the residence of parties, in consequence of 
the liability of trader^ to bnnkruptcy. In ff aslope v. nome{a), 
it was held that, in ad affidavit to hdd to bail, the plaintiff's clerk 
might sute his abode to be the office where he was employed during 
the greater part of the day, though at night* he used to sleep at 
another place. 

As to the objection that the affidavit does not correctly state the 
sum recovered for costs, the 13 & 14 Ttc, c. 74, s. 10, says, that 
upon the lodgment of any memorandum for the registry of any 
judgment in the office for the registry of judgments, the Regis- 

(a) 1M.&S.103. 



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283 



trar shall give a certificate of such registry, with a reference to 
the books of the office. The J02Qd General Order (1854) provides 
that **the Master, in awarding the costs of a judgment, shall, on 
produetion of the certificate of the registration of such judgment, 
under the 13 & 14 Vic^ c 74, add to the costs therein the sum of 
one pound, as and for the ousts of such registration." The 11th 
section of the 13 <& 14 Vie., c. 74, enacts> *^ That all costs properly 
incurred in the registration of judgments shall be allowed on tax- 
ation of costs, and be added to and charged and recoverable in like 
manner and together with the amount of the judgment so registered." 
Therefore, the one pound for registration forms part of the costs 
recovered, and are propedj included in the words *^ moneys ordered 
to be recovered," 4^. 3ut it is submitted tb<it it was not oeces- 
sarj to state in the affidavit th^ amount of the costs at all. 
The 6th section of the 13 & 14 Fm., c. 99j enacts that the affi- 
davit shall state *Hhe amount of the debt, damages, costs or 
moneys, recovered or ordered to be paid by such judgment, de^ 
cree, order, or rule ; " redendo singulu nngulUy the word ** costs " 
refers only to costs recovered for a decree, order, or rule. 




Jkrfpmvu*, 



Mr. Sullivan and Mr. Beyiagh^ for jteddington. 

In Blaokwell v. England {a)^ it was held that, where a bill of 
sale was attested by a witness described as <* clerk to Messrs. 
Brundrett and Bandall, solicitors, Temple," the fact being that 
be spent his business hours there, but took his meals and slept 
elsewhere, the description of residence . was Jield auAcieni. In 
that case, Erie, J., in his judgment said, (p. 549), '^ I am happy to 
say thajt the sound principle of common sense on which we decide 
in construing this Aet is no novelty. In Haslope t. 7%onM, 
Lord EUenborough said that the words place of abode did 
not necessarily mean the place where the defendant sleeps; that 
the object of this rule of Court was to ascertain the place where 
^he deponent was most usually to be found, which in the present 
case wee the office in which he was employed during the greater 
part of the day, and not the place whither he returned for the 

(a)8EIL&B.541. 



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CHANCERY REPORTS. 



1860. 
Ch. Appeal 

In re 
Fitzger- 
ald's- 

ESTATE. 
Argument, 



purpose of rest. The rule of eonstruction is the same, whether 
it he a rule of Court, or au Act of ParliameDt.** In Wills v. 
Adey (a), '' of the parish of Fisherton Anger, on the list of voters 
for the said parish of Fisherton Anger," was held a sufficient 
description of the defendant's place of ahode, under the Voters 
Act ; and in Osborne v. Gough (6), '* of Birmingham" was held a 
sufficient description of the place of ahode of the attorney whose 
name was indorsed on the notice of action. 



Mr. Sherlock replied. 



The Lord Chancellor. 
Judgwmnt, '^^^ affidavits, upon the validity of which we have now to 

decide, purport to be framed in accordance with the requirements 
of an Act of Parliament which specifies very fully the matters 
which such affidavits ought to contain. Upon the construction 
of that Act of Parliament there have be^n already some im* 
portant decisions, all tending to establish that the matters which 
are required, by the Act, to be stated, must be stated by positive 
averment, upon the oath of the party making the affidavit. The 
21 & 22 Fife, c. 105, was, no doubt, introduced by the Legis- 
lature as a remedial enactment ; but, as far as the present question 
is concerned, that Act only enables the party, by means of a 
supplemental affidavit, to convert into matter of positive averment 
matters which have been introduced by way of recital into the 
original affidavit. In 'the case now before us there can be no 
doubt whatever as to the invalidity of Mr. Reddington's affidavit, 
inasmuch as it does not contain any averment pledging his oath 
to the fact of . Fitzgerald's last known place of abode; it merely 
states the facts which are embodied in the description of the 
judgment 

As to Lynch's affidavit the case is somewhat different. It does 
contain a statement amounting to an averment, that Fitzgerald was 
"late of the town of Galway, and now of the county of Dublin;** 
"now" meaning the time of swearing the affidavit. That he ^ 

(a) 2 C. B. 246. (6) 3 B. & P. 550. 



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of the town of Galwaj was quite true ; and all the authorities which 
have been referred to establish that such a description would amount 
to an averment that that was his place of abode. ,The Acts, upon 
the construction of which those cases were respectively decided, 
required that the place of abode of the party (or of his attorney, in 
some cases) should be averred, and were held, in the respective 
decisions, to be satisfied by stating the person to be ''of* such a 
place. There have been also several decisions as to the certainty 
or vagueness of the place of abode assigned ; from which it appears 
that, whether stating a party to be ** of London,^ or ** of Westmins- 
ter," be sufficient or not, having regard to the great extent of these 
respective places, there can be no doubt that stating him to be 
*'of Birmingham," or "of Bolton-in-le-Moore," is sufficient. If, 
then, this part of Lynch's affidavit had stopped at the words '' late 
of the town of Gralway," it would have been hard to say that that 
was not a sufficient description of his last known place of abode. 
It may be questioned whether Fitzgerald did, in fact, acquire any 
place of abode, within the meaning of the Act, after he left Galway ; 
but Lynch has established, by his affidavit, that he did ; for in it he 
describes himself as ** now of the county of Dublin," which imports 
that he had acquired a place of abode in the county of Dublin. 
Now I am quite clear that ** now of the county of Dublin " is not a 
sufficient description of a party's place of abode. It is quite too 
▼ague ; and, as the entire averment shows that the town of Galway 
was not his last place of abode, it follows that the affidavit is 
defective in this respect. It is plain that the party did not intend 
to practise any deceit or fraud ; and it is, no doubt, to be lamented 
that parties endeavouring to do right should be hampered by the 
requirements of the Act of Parliament ; but, on the other hand, it 
most be remembered that this Act enables judgment creditors, by 
means of such affidavits, to convert their judgments into mortgages, 
and thereby transfer to themselves the estates of their debtors i and 
the Legislature has properly guarded the rights of the debtors, by 
requiring an exact and particular form of affidavit. 

There is another matter as to which Lynch's affidavit is defective ; 
t^^ amount recovered by the^ judgment, as stated in the affidavit. 



1860. 
Ch. Appeal, 




Judgment. 



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CHANCERY REPORTS- 



I860. 
Ch, AppeaL 




Judgment, 



does not correspond with the amount appearing oh the record. I 
have again to regret that a party should be thus embarrassed by the 
statute, when he endeavours to comply with its requirements ; but 
he has done so in a way wliich will not allow us to assist him in his 
difficulty. The original sum recovered by the judgment is cor- 
rectly stated, but the affidavit states that there was also recovered a 
sum of £3. 2s. 8d. for costs. When the record is produced, it 
appears that the additional sum recovered was not £3. 2s. Sd., but 
£2. 28. 8d., and that it was recovered, not as costs, but as damages 
for the detention of the debt Now, in this point of view, £1 is 
of as much importance as £100 ; and, although the party intended 
to do what was right, he has not, in point of fact, complied with 
the requirements of the statute, and his affidavit is accordingly 
defective. 

The order of the Court below must be reversed. 



The LoBD Justice of Appbai^. 

I entirely concur. in the view taken by the Lobd Chancbllob, 
and in his reasons. The appellant in this case and Mr. Lynch and, 
the one a creditor by judgment, of the year 1840, and the other a 
like creditor, of the year 1856. The latter contends that, by regis- 
tration, he has acquired a prior title, and become a mortgagee. In 
order to establish this priority, and thereby postpone the prior 
creditor, it is incumbent on him to prove a strict compliance with 
the provisions of the statute, which is the indispensable condition of 
acquiring the right and benefit it is meant to confer. The Court 
is, accordingly, bound to see that all that the statute requires has 
been complied with, otherwise it is impossible that the prior title 
can be displaced or postponed. Now we have both judicial and 
legislative authority for exacting a precise adherence to all its oon- 
ditions. The facts it requires must be stated positively and expM- 
oitly; recitals or inferences cannot be substituted for them; nor 
can the want of them be excused on the ground cf their being 
immaterial, or by arguing that their absence may be supplied by 
equivalent matters. The decisions of the Court of Common Pleas, 
in Fonblanque v. Lee and McDowell ▼• Wheatiei/^ followed by the 



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CHANCERY REPORTS. 



287 



Act of Parliament for remedying defective registrations, preclude 
08 from yielding to any such considerations, and from dispensing 
with a strict compliance with all or any of the conditions to which I 
refer. Now I think these conditions have not, in several respects, 
heen.obfterved in the present case* The affidavit does not state the 
last known place of abode of the debtor ; for although it might have 
been sufficient to have said, " late of the town of Galway," that 
place of abode appears to have been abandoned, and '* the county of 
Dublin** fiubstitnted for it; this is not, in my opinion, a descrip- 
tion of the place of abode, such as to comply with the requisition 
of the statute. « 

The last objection is, that there is a variance between the affidavit 
of registry and the judgment of record. That this variance exists 
cannot be denied, atid the defence against it amounts to no more 
than assertion of its immateriality. Now, it is true that the differ- 
ence between the amounts of the doms in the affidavit and in the 
judgment is very small, and, I dare say, the greater sum could be 
recovered by execution; but still the variance exists. The two 
things are not identical } and whether the difference be a difference 
of £1 or of £1000, yet the fact is, that the judgment of record 
is not the same as that described in the affidavit of registration. 

The affidavit, and consequently the registration, is, therefore, 
invalid, and the judgment of the Court below must be reversed. 




Judgment, 



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288 CHANCERY REPORTS. 



1860. 
Ch, Appeal, 



In re EDWARD SANDIFORD POWER'S ESTATE; 
JOHN TAYLOR, Appellant. 



Nov. 12. 



If an aflBdavit, This was an appeal against an order made bj Judge Dobbs, in the 
purpose of re- Landed Estates Court, by which he disallowed a judgment mort- 
^Kment aaa g^o^* registered bj the appellant against the lands sold in this 
undw^thepro- ™^*^^ "P^*^ ^^® ground that the judgment had not been duly 
Ia*&°i4°V^*** registered as a mortgage, under the provisions of the 13 & 14 

c. 29, sabstan'. Vic, C. 29. 
> tially complies 
with the re- John Taylor, the appellant, obtained a judgment as of Trinity 
aairements of 

the 6th section Term 1858, against Edward Sandiford Power, the owner, for £3559. 
of that statute, 

it is snffident. 12s. 4d., with £3. 3s. Od. for costs; and on the 3rd of August 1858, 
Therefore, 
where sach an registered the same as a mortgage, under the 13 & 14 Ftc, c. 29* 

afiSdavit ixras 

entitled in the '^^^ affidavit sworn at the time of the registration was as follows : — 
Sl^^^^J ^f " ^» ^ Court of Exchequer. 



^\ ^t^r '* " ^^^^ Taylor, of No. 116 Grafton-street, fai 
ter alia) that *^® ^^ ^' Dnblin, solicitor. Plaintiff. 

"J. T., the Edward Sandiford Power, of No. 7 Wilton- 
plaintiff, by place, Belgrare-sanare, in the county of 
the name and ^,.,« ,, i .. -«, -w^ , -, \ 
description of Middlesex, England, Esq., Defendant 

J. T., of 116 And the Act of the 13 & 14 Ftc, c, 29. 



John Taylor, of llBGraf- 
ton*street, in the county of 
the city of Dublin, solicitor, 
aged thirty years and up- 
in. the'^d^^of ^ards> the plaintiff in this cause, maketh oath and saith, that he, 
dltorl'^didT^on ^^'® deponent, John Taylor, the plaintiff, by the name and descrip- 
?nl ^^'^ob- ^^^^ ^^ ^^^^ Taylor, of No. 116 Grafton-street, in the city of 

tain a judj?- Dublin, solicitor, did, on the 15th day of July, in the year of our 
ment in the .> ^^ j 

Court of Ex- Lord 1858, and in or as of Trinity Term, in the said year of our 
cheqaer, 

against the Lord 1858, obtain a judgment in Her Majesty's Court of Exchequer 
defendant in 
this cause, by 

the name and description of £. S. P., of, &c., . . . . that the usual or last-known 
place of abode of the said E. S. P., the defendant in this cause, the person whose 
estate is intended to be afiected by the registration of this affidavit, is at, &c. . . . 
that, to the best of deponent's knowledge and belief, the said £. S. P., the defend- 
ant in this cause, is, at the time of swearing this affidarit, seised or possessed 
of," 4c, &c — 

l/e/</— First, that the abote affidavit contained a sufficient statement of the title 
of the cause. 

Secondly ; that the affidavit sufficiently identified the defendant in the judgment 
with the person whose estate was sought to be affected by the registration of the 
affidavit. 



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CHANCERY REPORTS- 



289 




10 Ireland, against the defendant in this cause, bj the name and I860. 

Ch, JippeaL 
description of Edward Sandiford Power, of No, 7 Wilton-place, - 

Belgrave-sqaare, in the county of Middlesex, England, Esq., for the 
sum of £3559. 128. 4d. sterling, besides £3. 8s. for costs ; as bj the 
records of said Court may fully appear. This deponent further Statement. 
saith, that the usual and known place of abode of this deponent is 
at No. 116 Grafton-street, in the county of the city of Dublin, and 
that he is a solicitor of the Court of Chancery, and an attorney of 
this Honorable Court ; and that the usual or last known place of 
abode of the said Edward Sandiford Power, the defendant in this 
cause, the person whose estate is intended to be affected by the 
registration of this affidavit, is at No. 7 Wilton-place, Belgrave- 
square, in the county of Middlesex, England ; and that the said 
Edward Sandiford Power is not, to deponent's knowledge or belief, 
of any trade or profession, but is an Esquire. This deponent further 
saith, to the best of his knowledge, information and belief, the said 
Edward Sandiford Power, the defendant in this cause, is, at the time 
of swearing this affidavit, seised or po^/sessed of, at Law or in Equity, 
or has disposing power, which he may, without the assent of any 
other person, exercise, for his own benefit, over certain lands, tene- 
ments, hereditaments and premises hereinafter mentioned ; that is to 
say, the town and lands of B. — [Here followed the several denomina- 
tions of the land sought to be afibcted, and the names of the baronies 
and counties in which they were respectively situated.] — Deponent 
further saith, that the sum of £1779* 16s. 2d. for debt and costs 
still remains justly due and owing to this deponent, upon said 
judgment, over and above all just and fair allowances, and that said 
judgment is still in full fgrce, virtue and effect in law, not executed, 
satisfied, set aside, paid off or discharged. 

"John Taylor." 
The lands in question were subsequently sold in the Landed 
Estates Court $ and on the settlement of the final schedule, before 
Judge Dobbs, Taylor's judgment mortgage was disallowed as aix 
incumbrance, on the ground that the requirements of the 6th section 
of the 13 & 14 Ftc, c. 29, had not been complied with, inasmuch ' 
as the affidavit did not contain any averment of the title of the 
TGI*. 11. 37 



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290 



CHANCERY REPORTS. 




Argument, 



cause in which the judgment had been recovered, nor any averment 
which identified the defendant in the judgment with the owner of 
the lands sought to be affected bj the judgment mortgage. 
Against that decision the present appeal was brought. 

Mr. Brewster, with Mr. F. Wahhe and Mr. GambUy for the 
appellant. 

This case is quite distinguishable from McDowell y. Wkeatiey(a). 
There the affidavit did not contain any positive averment whatever 
of the title of the cause, nor of the last-known place of abode of the 
defendant. Here there is such positive averment as must, by 
reasonable and irresistible inference, inform anyone, reading the 
affidavit, of the title of the cause, and of the identity of the defend- 
ant in the judgment with the person whose estate is sought to be 
affected by the registration. Reasonable inference is sufficient in 
such cases: JRoublot v. Bouiell{b)i Blaekwell v. England {e). 

Mr. J, E, Wahhe and Mr. Coxe, in support of the order of the 
Court below. 

There is here no positive averment of the title of tiie cause 
sworn to ; for the entitling of the affidavit is not covered by the oath. 
Neither is there any positive averment that the defendant in the 
judgment is the person whose estate is sought to be affected by the 
registration. The affidavit merely states that ^*the last-known 
place of abode of the said Edward Sandiford Power, the defendant 
in this cauflfc, the person whose estate is intended to be affected by 
the registration of this affidavit, is,** &c. Affidavits for the purpose 
of converting judgments into mortgages are strictly construed: 
McDowell V. Wheatley\ Crosbie v. Murphy {d)\ In re Fitz- 
gerald^e Ettate {e) ; In re Ferrall (f). The only proper form of 
entitling an affidavit is, A v. B : Richard v. Isaac (jg). 

(o) 7 Ir. Com. Law Eep. 562. (6) 5 Jur., N. 8., 548. 

(c) 8 £U. & Bl. 541. (<0 8 Ir. Com. Law Bep, 301. 

(e) Ante, p. 278 ; S. C, 5 Ir. Jur., N. 8., 205. 
(f) 5 It. Jur., N. S., 274. (^) 1 Cr., M. & B. 13C. 



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CHANCERY REPORTS- 291 

The LoBD Chahcellob. 

The Court is perfectljr satiBfied that, in the affidavit now hefore 
it, all that is required bj the Aot of Parliament has been more than 
substantiallj oomplied with, and that the principle of the decision 
in IPDaweli v. WheiUley has been carried too far in the Court Judgment. 
below, if it has been supposed to invalidate the affidavit in the pre- 
sent case. It has been said, during the argument, that if we hold 
this affidavit good, we must overrule the decision in McDowell v« 
Wkeailey. We do no such thing. The Act of Parliament, 
upon which this question depends, requires, bj iu 6th section, 
that the affidavit made for the purpose of converting a judgment, 
order or rule into a mortgage shall contain, among other matters, 
an averment, upon oath, of the usual or last-known place of abode, 
and the title, trade or profession of the plaintiff and of the defend- 
ant In the affidavit in McDowell v. Wheailey^ there was no 
averment whatever of the usual or last-known place of abode of the 
defendant. It was there sought to help out that defect by referring 
to the statement that the order had been registered ^* against James 
Sadleir, by the name and description of James Sadleir, of blona- 
cody, Clonmel, in the county of Tipperary, Esq., M.P/' But that 
did not cure the defect, for he might have had a last-known place of 
abode subsequently to the registration of the order. The Court w^ 
in point of fact, quite right in holding that to be a defective 
affidavit, because tiiere was absolutely no compliance with the 
requirements of the Act, in the respect mentioned ; but it is entirely 
another question whether the Court is bound to overlook and to 
consider as defective every species of averment except one in the 
precise form, as '' that the name of the cause was so and so,'* &c.f 
going in detail through all the statements. For my own part,! 
consider the decision in this case, in the Landed Estates Court, to 
be extremely unsatisfactory. What is required by the Act to be 
stated in the affidavit ? The name or title of the cause, the Court 
in which the judgment has been obtained, the date of the judgm<^nt, 
and the names and the usual or last-known place of abode, and the 
title, trade or profession of the plaintiff and of the defendant, and 
the amount of the debt recovered by the judgment. Well, in tb^ 



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292 



CHANCERY REPORTS, 



1860. 
Ck. Appeal 



In re 
power's 

ESTATE. 



affidavit before us, the Court is stated to be the Exchequer ; the 
date of the judgment to be the 15th of July 1858. The names and 
description of the plaintiff and defendant are sworn to be — [Here 
the Lord Chancellor read the description in the affidavit] — and 
JudgmmUn the amount of the judgment to be £3559* 12s. 4d. The question is, 
has the title of the cause been sufficiently stated ? There are two 
different ways in which this might have been done. One was by an 
independent substantive averment, that the name of the cause in 
which the judgment was recovered was so and so; but another 
method of averring the title of the cause was, by stating, as 
in the affidavit before us, that the judgment in question was 
recovered by John Taylor, by the' name and description of, &c, 
against the defendant in this cause, by the name and descrip- 
tion of Edward Sandiford Power, of, &c The affidavit, there- 
fore, states the names and descriptions of the parties who must 
have been the parties to the cause in which the judgment was 
recovered, and whose names and descriptions would have con- 
stituted the title of that cause; for the practice is, that a judgment 
is headed by the names of the parties to the cause in which that 
judgment was recovered, and no other title of it would be right. 
Therefore the present is a fair statement, on the part of the plaintifl^ 
that the title of the cause, in which the title sought to be registered 
4iad been recovered, was *' my name and description against your 
name and description.** It appears to me that, without deducing 
any inference, and by mere reference to the legal practice, that that 
is the title of the cause. 

The next objection that has been made to the form of this affl* 
davit^ I confess I find great difficulty in compi^hending ; namely, 
that there is nothing in the affidavit to identify the defendant in the 
judgment with the owner of the lands sought to be affected by the 
registration. The point of that objection, I presume, is, that 
instead of saying ** that the person whose estate is intended to be 
affected is seised or possessed,** ^., the deponent states, "tliat 
Edward Sandiford Power, the defendant in this cause, is seised or 
possessed,*** &c Now, it is to be observed that the title of the 
cause, as set forth in the margin of the affidavit, oorresponds with 



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CHANCERY REPOETS. 



293 



the title of the eanse in which tiie judgment was recovered, as 
averred in the body of the affidavit Had this not been so, there 
would have been an ambiguity, but, as it is, there is none ; the affi- 
davit itself shows that the title in the margin was the title of the 
judgment; and, therefore, "the defendant in this cause" is the 
same person as the defendant in the judgment, who is thus identi- 
fied with the owner of the lands sought to be affected* 

The Judge in the Landed Estates Court has, perhaps, been dis- 
posed to foUow the decision in IPDowell v. WheaiUy too rigorously. 
I think that, in the present case, the affidavit substantially contains 
every statement required by the Act of Parliament, and is, there- 
fore, valid. Accordingly, the decision of the Court below must be 
reversed, and this incumbrance held to be good. 




JudgvMMU 



The LoBD JusTics or Appsal concurred. 



In re the Estate of 

£. M. EDGEWORTH, Owner and Appellant i 

D. M. DAVIS, Respondent. 

Noe. 18. 
This was an appeal on behalf of the owner, against an order made An afBdatit 
by Judge Dobbs, in the Landed Estates Court, by which he had l^^^^e IS 
ruled that a judgment obtained by the respondent against the ^29^ i, 6 
appellant in 1867, and subsequently registered by him as a mort- Jj^^^^^^ 
gage, under the provisions of the 13 & 14 Ffc., c 22, was an ^7 ^« i"^ 

incumbrance on the lands sold in this matter. ^265, with 

£8. 2i.8d., for 
co«tB. The 
record of the 
Mr. Sherlock and Mr. G. O'Malley^ for the appellant| contended Jadgment 

stated that the 

that the affidavit filed by the respondent, for the purpose of con- aam leooreied 

Terting his judgment into a mortgage, was defective, because it sides £% 2s. 

8d., for dam- 
ages, and Xl. 
for tejAitry.'^Hetd that the above was not sach a variance as woud invalidate 
the affidavit. 



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294 CHANCERY REPORTS. 

1860. stated that a som of £3. 2 s. 8d. had been recovered for aaU, 

>.— >>^^ whereas the record of the judgment stated that £2. 2s. 8d. bad 
In re .... 

xdobwokth's been recovered for datnageSy and £1 for the costs of registration ; 

ESTATE* 

* and that this was such a variance as invalidated the affidavit. They 

Argument. ^^^ j^ ^^ FiizgeraliTs Estate (a). 



Mr. Brewster and Mr. A. (Sraydon^ for the respondent. 

It is sufficient if the affidavit state the amoutU of the ** damages, 
costs," &c. Here the sum stated in the affidavit is the same as that 
appearing on the record. 

Per Curiam, 

Judgment, There is not any substantial variance in this case. The amount 

stated is the same in the affidavit and on the record. In the 
case of In re Fitzgerald^s Estate the sum mentioned in the affi- 
davit was not the same with the sum appearing on the record. 
The order of the Court below must be affirmed. 

(a) Anle, p. 278; S. C, 5 Ir. Jar., K. S., 205. 



In re the Estate of 

E. M. EDGEWORTH, Owner and Appellants 

THOMAS R. SMITH, Respondent. 



JVw.12. 



In an affidarit This was an appeal on behalf of the owner, against an order made ' 

r^^istered 

under the 13 by Judge Dobbs in the Landed Estates Court, by which he had 

c. 29, 1. (il ruled that a judgment obtained by the respondent against the 

"that deponent <^PP^ll&i^t '^^ 1857, and subsequently registered as a mortgage, 

^"a «jntle^ ^*® ^^ incumbrance on the lands sold in this matter. 

man," was 

held to be a 

wrfBdent d^ Mr. Sherlock, for the appellant, contended that the affidavit 

cnption of the rr -» 

Elaintifi; where registered by the respondent, for the purpose of converting his 
e had not any 
trade or profession. 



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CHANCERY REPORTS. 



295 



1860. 
Ch. Appeal, 

In re 



judgment into a mortgage, under the provisions of the 18 & 14 
Vic^ c. 29» was invalid^ upon the ground (among others) that 
it did not contain a sufficient description of the plaintiff. The bdobwobth'b 

affidavit contained, as a description of the plaintiff, the following ' 

statement, "that deponent was, and still is, a gentleman." That -^P«»«»<« 

is not a sufficient description to satisfy the requirements of the 

6th section of the Act, which enacts that the affidavit shall set 

forth *< the ti(le, trade or profession of the plaintiff." It cannot 

be inferred that the plaintiff meant to make averment of his 

title by stating that he was a gentleman. 



Mr. Lawson and Mr. Cathrtw^ for the respondent, were not 
heard. 



Per Curiam. 

It does not appear that the plaintiff had any trade or profession ; 
and in that case it is difficult to conceive how he could better 
have described his title than he has done. This affidavit is good, 
and the order of the Court below must be affirmed. 



JudgwtenL 



In re the Matter of the Estate of 

EDWARD SANDIFORD POWER, Owner; 

FRANCIS CARLETON REEVES, PeHHoner. 



Nov. 11, 12. 



This was an appeal on behalf of F. C. Reeves, against an order The"^er of 
made by Judge Dobbs in the Landed Estates Court, disaUowing i^th?llnd2d 
a judgment mortgage as an incumbrance ypon the lands sold in ^hdd^'S 

this matter. estopped from 

objecting, 

tiement of the final schednle of mcnmbrances, to a claim which he h^^m^j^ 
hu affidavit filed a« an answer to the conditional order for sale, to be a chim« nion 
the estate He had ahio suffered the the conditional orderrbe^ «&, S2S 
a sale to be had, without disputing the daim in question. ^^ w-wiaw, ma 

the vahdity of a daim, to which he has not hmuelf filed an objection. 



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296 



CHANCERY EEPOETS. 



1860. 
Ch, Jppeal 
* ■' y ' 

In r« 

foweb's 

ESTATE. 

Statement, 



In Easter Term 1857> F. C. Beeves obtained a judgment against 
the owner, which he registered as a mortgage on the 27th of April 
following. In 1858; F. C. ReeTes filed a petition in the Landed 
Estates Court for a sale of the lands. A conditional order for a sale 
was made, and served on the oWner, who filed an affidavit as cause 
against the conditional order, in which he stated that he had made 
arrangements to raise money to discharge all the incumbrances 
afiecting the lands, including the debt due to F. C. Reeves. The 
conditional order was subsequently made absolute, and registered as 
a lis pendens. 

The lands were sold ; and, on the settlement of the final schedule 
of incumbrances, the owner objected to F. C. Reevef claim, on the 
ground that the affidavits filed for the purpose of registering his 
judgment as a mortgage were defective. Judge Dobbs ruled that 
the registration of Reeves' judgment was invalid, and that his 
claim should be disallowed. From that decision F. C. Reeves now 
appealed. No other party had, on the settlement of the schedule, 
filed a petition to Reeves' claim ; but Margaret Kirwan, a puisne 
incumbrancer, had filed an answer to Reeves' appeal, with which 
she had been served, and now claimed to be heard in support of 
the order of the Court below. 



Mr. Brewster ^ Mr. Warren^ and Mr. It. Reeves^ for the appellant 
Argument. The owner cannot be now heard against this judgment mortgage ; 
he should have taken his objection in limine. He has acknow- 
ledged the debt in his affidavit showing cause against the conditional 
order for a sale, and he cannot now turn round and say that it is 
not a debt. He has even allowed the conditional order to be made 
absolute, and a sale to be had, without taking any steps to stay the 
proceedings on the ground of the invalidity of this claim. He is 
now stopped. 

Mr. Flanagan and Mr. Coxe appeared for the owner. 

The Lord Chancellob. 
Judgment. ^^ ^^^^ 1^0^^ ^^0 owner concluded by his own affidavit He 
cannot admit and deny the same thing ; what he has sworn must be 



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CHANCERY REPORTS. 297 

taken to be trne as against himself. It is a most mischievous practice I860* 

Ch. AppBoL 
to allow a party who, when a conditional order for a sale has been 




obtained, swears to a particBlar incumbrance, and suffers the pro- 
ceedings to go on, then to turn round and say ** oh ! this is not an 
incumbrance at all.** I remember a case in the Court of Exchequer, Judgment. 
in which the bill alleged a certain sum to be due on foot of a judg- 
ment, and the respondent by his answer admitted that it was, but 
on taking the account he endeavoured to show that a less sum was 
due ; and he was held to be estopped by his own admission. 

The Lord Justice of Appeal. 

Suppose the party had endeavoured to impeach the original 
decree ; he could have done so only by a proceeding in the nature of 
a bill of review, and should have shown that he had not known the 
facts upon which he subsequently relied, and had not, at the time, 
the means of knowing them. 

Mr. Serjeant Sullivan^ Mr. P. J, Blake and Mr. M. Morris^ for 
Mrs. Kirwan, contended that, as she had been served with this appeal 
and had filed an answer, she was now entitled to be heard, an objec- 
tion to the claim having been filed, though not by her. 

Mr. Brewster, — If Mrs. Eirwan intended to dispute this claim, 
she should have filed an objection herself. An incumbrancer can- 
not take advantage of an objection filed by another party. This 
appears from the 38th of the General Rules of the Landed Estates 
Court. 

Mr. Serjeant Sullivan, — It would be a ruinous practice if it were 
necessary that a number of incumbrancers, who wished to dispute 
a particular claim, should be obliged to file separate objections, and 
not be allowed to avail themselves of an objection filed by one. It 
has always been the practice of the Incumbered Estates Court that 
any incumbrancer might avail himself of an objection filed by any 
other incumbrancer, which went to the ^oot of the claim. This lady 
has been led astray by what is regarded as the settled practice of the 
Court. She ought, at all events, to be allowed to file an objection 
nunc pro tunc, 

VOL. 11. 38 



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298 



CHANCERY REPORTS. 




Judgment* 



The LoBB Chahgellob. 

The Rules of the Landed Estates Court are against Mrs. Eirwan; 
and if the practice of the Court is in contravention of the Rules, it 
is wrong. We hold this judgment mortgage well charged, because 
the only objection filed was that of the owner, and he is estopped. 
No party can avail himself of an objection which he has not filed 
himself. The order of the Court below must be reversed. 



Nov. 12. 

The three 
months within 
which an ap- 
peal fix>m an 
order or deci- 
sion of the 
Landed Es- 
tates Court 
mnst be 
entered, in ac- 
cordance with 
the 41st sec- 
tion of the 
Landed Es- 
tates Act (21 
and 22 Vic., 
c 72), are to 
be computed 
exdosiye of 
the day of the 
date of such 
order or deci- 
sion, and in- 
dnsire of the 
day on which 
the appeal if 
entered. 



In re the Estate of KENNEDY, Oumer ; 
CRUISE, Petitioner, 

This was an appeal on behalf of the petitioner, against an order 
made by a Judge of the Landed Estates Court. 

Mr. Jf. Morris raised a preliminary objection. This appeal is 
too late. By the 41st section of the Landed Estates Act, an appeal 
<< must be entered within three months from the date of the decision 
or order." In this case the order bears date the 21st of June ; the 
appeal was entered on the 21st of September. It should have been 
entered on or before the 20th of September. 

Mr. William Smith, for the appellant. 

The 2nd of the General Orders of the Court of Chanceiy (1843) 
provides '* That when time is to be computed by days, it shall be 
exclusive of holidays ; and when it is to be computed by the months 
it shall be construed calendar month ; and in all cases it shall be ex- 
clusive of the first, and inclusive of the last day^ unless the last day 
be a holiday, when the following day shall be included." 



The Lord Chancsllor. 

I apprehend this appeal is in time. 



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CHANCERY REPORTS. 299 



1861. 
L. E. Court. 



Srantielf tt#tate# Court 

In the ESTATE of CHARLES HUNT, 
Owner and Petitioner. 



Jon. 23. 



The question in this case arose on the hearing of the final schedule Although a 

Judge of the 

of incumbrances. As the facts appear at length in the judgment, it Landed Es- 

tates Court 

is onlj necessary to state that Anne Wallace, whose claim was No. 7 will not act in 

on the schedule, was assignee from Miss Anne Pfeilitzer, of the sum but is bound' 
of £1825, moiety of a charge of £8650; and which, by a anal S^*i^ch^- 
decree in the cause of Pfeilitzer v. Huni^ was declared weU charged ^^J^j^^ fj 
on the estates the subject of the petition in this matter. Miss Anne ^ ^^^^ ^ 

Wallace became assignee after the date of the final decree. The point where it ap- 
^ " pears that the 

was raised by the Judge himself, who considered that the rights of n^bts of 

nunors hare 
the minors had been overlooked in the Chancery proceedings, and been preju- 
diced by such 
directed the case to be argued on their behalf. decree, the 

Court wiU re- 
tain the pur- 
Mr. P. Smythe, for the minors. ^ enSlS^^Se 

minors to ob- 
tain redress in 
Mr. 8. Walker, for Miss Anne Wallace. Chancery. 



Mr. Omuby, for the owner. 

LONGFIELD, J. 

Feb. 23. 
The facts in this case are not very complicated, and are all ad- Judgment. 

mitted, by all parties, without any conflict of evidence. Under the 

will of James Hunt, dated the 24th of July 1819, Charles Hunt 

(the owner in this mattei;*), and his brother Thomas, were entitled, 

as tenants in common, to the lands sold in this matter, subject to 

some life annuities. On the 31st of December 1823, Thomas Hunt 

conveys his moiety to his brother Charles, in consideration of the 

sum <^ £3650, which, however, was not paid, but secured by the 



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CHANCERY REPORTS. 



1861. 
X. E, Court. 

In re 
hunt's 

ESTATE. 



Judgment, 



bond and warrant of Charles, on which judgment was entered as of 
Hilary Term 1824. It was clearly intended to remain as a lien on 
the estate ; for, on the 1st of January 1824, on the day after his pur- 
chase from Thpmas, Charles Hunt executes a settlement, on his 
marriage with his present wife, then Maria Pfeilitzer, by which he 
settles his estates, subject to the annuities given by the will of 
James Hunt, ^' and to the said sum of £3650, so secured by the said 
recited indentures of lease and release, of the 30th and 31st days of 
December 1823, as aforesaid, and to the interest which shall accrue 
thereon." The form of this settlement is not unimportant. It vests 
the legal estate in the trustees on certain trusts, one of the earliest 
of which is to pay the annuities, " and also the interest to accrue 
due in respect of the said sum of £3650, so secured by the bond 
and warrant ; " and after those trusts the deed gives an equitable 
life estate to Charles Hunt, with remainder to his intended wife and 
children. By another deed, Maria Pfeilitzer's property is settled on 
the wife, then on the husband, then on the children. Maria Pfeilit- 
zer, now Mrs. Hunt, was the sister of the petitioner Anne Pfeilitzer ; 
and a great part of their property consisted of the residuary estate 
of their maternal uncle, Lucas Garvey, under his will, dated the 
24th of November 1812. Mrs. Maria Hunt was administratrix 
with this will annexed. Her husband, Charles Hunt, got possession 
of the assets, and employed them in paying off the charge of £3650, 
and he got the judgment satisfied on the roll. . In this state of facts, 
Miss Anne Pfeilitzer filed her cause petition, by the amended 
prayer of which she prays that a declaration should be made, that 
the said principal sum of £3650 was well charged by the said inden- 
ture of the ^1 St of January 1824, on the lands comprised therein, 
and that the petitioner was entitled to one moiety thereof. It is a 
common equity, where an estate is put in settlement expressly sub- 
ject to a charge, if the tenant for life pays it, to keep it alive for his 
benefit ; and, of course, if he pays it out of assets, then to keep it 
alive as an investment of those assets. Accordingly, by the decree 
of the Lord Chancellor, dated the 6th day of December 1855, it was 
declared that the said sum of £3650 was well charged, by the inden- 
ture of the 1st of January 18^4, on the premises comprised therein. 



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301 




and that the petitioner was entitled to half that charge, and the 1861. 
usual consequential directions were given by the decree. On that 
hearing the infants appeared by Counsel (Mr. Brewster and another), 
and they could not reasonably complain of the decree, which left 
them all that was settled on them, viz., the estate, on their parents' Judgment, 
death, subject to a charge of £3650, to be taken out of it ; of which 
sum, however, they would be entitled, under the settlement of their 
mother's property, to one moiety. The matter then was taken into 
the Master's office, and the infant defendants did not appear there 
by Counsel ; and the solicitor informs me that the Master directed 
that they should not appear by Counsel — a sufficient intimation that 
their rights were not to be prejudiced by the report or its conse- 
quences. Their rights were clear, to get, on the death of their 
parents, the estate, or its value, minus the charge of £3650. 
Accordingly, the other parties in the same interest with the minors 
did not generally appear before the Master at all. There was some 
conflict of priorities in the Master's office, and the report is made up, 
dated* the 18th day of December 1856, by which the Master finds 
that all the mortgage and judgment creditors of Charles Hunt, 
between the date of the settlement and the filing of the cause peti- 
tion, were charges on the life estate of Charles Hunt, prior to the 
said charge of £3650, under the settlement. I do not understand 
the grounds of this report. It appears to me that the interest of the 
sum of £3650 was not so properly called a charge on the life estate 
of Charles Hunt, as a payment to be made, by the trustees, out of 
the rents and profits of the lands, in priority to Charles Hunt's equit- 
able life estate. Some stress was lajd on the fact that the judg- 
ment had been satisfied. That does not appear to me to be a fact 
of importance. The judgment was not entered up until after the 
marriage settlement, and was not, of its own force, a charge on the 
inheritance. It was a charge on Charles Hunt's life estate, and was 
extinguished by its satisfaction ; but the interest on the £3650 was 
a charge antecedent to Charles Hunt's equitable life estate ; and I 
do not see how his creditors, not having any legal estate, could 
remove that prior equity, nor how the report can be reconciled with 
the decree declaring the sum well charged by the deed of the 1st of 



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302 



CHANCERY REPORTS. 



1861. 
L, E. Court. 




Judgment. 



January 1824. The petitioner Anne Pfeilitzer maj be bound 
by that report, as she did not except to it ; but it was not intended 
to prejudice the infants, who were substantially not permitted to 
appear by Counsel in the office. The charge against them was 
only under the deed of 1824; and that deed made, a provision for 
keeping down the interest during Charles Hunt's lifetime ; and if the 
owners of the charge, or the trustee for the owners, did any act by 
which they were precluded from raising the interest off the life 
estate, they must lose that interest altogether. The right of the 
infants entitled to the estate in remainder to have a receiver, if 
necessary, put over Charles Hunt's life estate, to keep down the 
interest, or to compel the trustees to do so, was anterior to any 
interest which Charles Hunt, or his assigns or creditors, could have 
in the premises. The cause was then set down for final hearing, 
the solicitor for minors having no reason to think that the decree 
could possibly affect them; and none of the other parties in the 
same interest appearing at all when the decree of the 6th of 
February 1857 was pronounced, which, I think, is not consistent 
with the rights of the infants, or other parties entitled in remainder, 
or with the former decree of 1855. This decree directs the lands 
to be soldy and the life estate, and the inheritance after the life 
estate (that is, the reversionary interest), to be valued respectively, 
and that, out of so much of the produce of the sale as represents the 
life estate, the arrears of the annuities, and the several charges on 
the life estate, shall be paid according to their priority, and that, oat 
of so much of the produce of the sale as shall represent the in- 
heritance, the sum of £3650. shall be paid. I think the infant 
inheritors have a just complaint against this latter clause, of which 
the full effect, coming, as it did, by surprise, was probably not com- 
prehended at the time by the parties. Its effect obviously is to make 
the remainderman pay all the interest which shall accrue on the 
sum of £3650 from the time of the sale, during the life of Charles 
Hunt. The estate for life obviously does not bear it ; for its value 
is distributed among Charles Hunt's creditors. The owners of the 
charge do not lose it ; for, as they get the principal now, that is 



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CHANCERY REPORTS. 



303 



1861. 
X. £. Cowrt. 



In re 
hunt's 

ESTATE. 



the same thing as if the charge was delayed and bearing interest ; 
the remaindermeni therefore, bear the loss. An example in figures 
will show this. Suppose the life estate and the inheritance in 
remainder were each worth £3650, then, if the trusts of the deed 
of 1824 were carried fairly out, the owners of the inheritance would Judgment, 
get, on the decease of Charles Hunt, the sum or value of £7300, 
subject to a charge of £3650 ; that is, they would get £3650 net, 
or, if the payment were made now, the debt would be paid out of 
the entire fund, and the balance settled so as to come to them at 
the proper time ; or, instead of the whole being settled, the value set 
apart to represent the inheritance should be such a sum as, if put 
out to compound interest during the lifetime of the tenant for life, 
would, according to the average duraticm of human life, accumulate 
to the entire net value of the estate ; but, in the case I have put, the 
decree would give the inheritors nothing ; the entire of the £7300 
would be thus spent. One sum of £3650 would be paid to the cre- 
ditors of the life estate, and another sum of £3650 would go to pay' 
the charge placed on the estate by settlement. I conceive that, sup- 
posing the Master's report to stand, the decree ought either to have 
directed the money that represents the value of the inheritance to 
be invested during the lifetime of the tenant for life, and, on his 
decease, the sum of £3650 to be paid, without interest, out of the 
accumulated fund ; or it should have taken the present value of a 
sum of £3650, payable on the decease of Charles Hunt, and directed 
that sum only to be now paid out of the fund representing the inhe- 
ritance. Either of these decrees would be just, and consistent with 
itself. The existing decree is inconsistent ; for it deprives the peti- 
tioner of all past interest, and yet substantially charges all future 
interest against the reversionary estate. The same injustice is done 
by throwing ^1 the costs upon the value of the reversionary estate. 
Inasmuch, therefore, as I think that the infant defendants were taken 
by surprise, and suffer seriously from the decree, I shall, for the 
present, retain the money, in order to give them an opportunity of 
commencing such proceedings as they may be advised to take for 
the purpose of obtaining redress in Chancery. . If they cannot 



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1861. 
Z. E. Court. 

y ^— ' 

In re 
hunt's 

ESTATE. 
Judgment. 



304 



CHANCERY REPORTS. 



succeed in altering the decree, I must pay out the value of their 
inheritance, in obedience to its provisions.* 



* A motion was made on the 20th of April, by Mr. Brewster , for a re-hearing; 
bnt, under the drcnmBtances of the case, the final decree having been made, 
and Miss Wallace being a purchaser after the making thereof, and not haying 
been a party to the proceedings in Chancery, the Lord Chancellor refused the 
motion without costs. 



In the matter of the Estate of 

Feb.25. ^^^ Trustees of TIMOTHY TURNER, Oumers and Petitioners. 
March 2, 

S. S., a lessee Xhe absolute order for sale in this estate comprised, amongst others, 

of certain pre- 

mises, for 125 certain premises in Lower Mount*street, in the city of Dublin, held 

years from the 

25th of March under a lease, dated the 21st of July 1787, and made between Sam- 

1782, by a 

lease, dated uel Sproule, of the one part, and Edward Heam, of the other part, 

July 1787. and for the term of 120 years from the 25 th of March then last past, 

ed **the^'usual *°^» ^^*®^ ^** ^**®» during the residue of the term, at a yearly rent 

teSTand Irt o^ ^^6. 98. 7d., late currency. The material facts of the case appear 

entry, deimsg in the judgment. The owners insisted that the premises should be 

^•» ^**5^ ^^ sold discharged from the payment of any rent during the residue of 

25th of March ^he term, on the ground that S. Sproule having made the lease, 
thenlast past » 6 re 

Twenty-two without retaining a reversion, the rent thereby reserved was not a 
years' arrears 

of rent accrued conventional rent ; and, therefore, the case not coming within the 
due to the re- 
presentatives principle of Grant v. ElliSt the right to recover the rent was barred 

the last-men- ^J ^^^ ^^ section of the Statute of Limitations (a), no rent having 

though 8. 8. 

had no reyer- Mr. R. R. Warren^ for John and Phineas Riall. 

sion expectant 

on the deter- Grant v. Ellis (6) was decided on two distinct grounds, either of 

mination of 

the said lease of the 21st of July 1787> jet that the rent reserved by the said lease 

was a conventional redt, and that, therefore, the right of the representatives of S. 9» 

to ihe rent during tiie residue of the term was not barred by the 3 & 4 W. 4, c. 27> 

s.2. 



(a) 3 & 4 W. 4, c. 27. 



(6) 9M. AW. 113. 



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CHANCERY REPORTS. 



305 




which was sufficient to support the decision : firstly, that from the 1861. 

word ** recover/' in the statute, the Legislature did not mean to * ' 

apply it to conventional rents of any kind ; and, secondly, that there 

was no estate in the rent, but in the reversion, in that case. If the 

first ground were sufficient to support the decision, it is applicable Argument, 

to this case, which is a conventional rent, although no reversion 

exbts. 

He also cited DcUy v. Bloomfield {a) \ Jack v. 3PLoffhlen (Jb) ; 
Crosbie v. Sugrue (c) ; Manning v. Helps {d) ; Shannon v. Hod- 
der {e) ; Skiel v. Incorporated Society (f). He also argued on the 
analogy of tithes, and the decisions thereon, and cited Dean of Ely 
Y. Bliss (ff). 



Mr. Tuthillf for an incumbrancer, relied on the case having been 
decided by James v. Salter (A), and that there was no reversion, and, 
therefore, no relation of landlord and tenant : Pluck v. Digges (t) ; 
and that the estate in this case was in the rent, which was a rent- 
charge, and, therefore, within the 2nd section of the Act. 

Mr. Ince^ for the owners. 



DOBBS, J. 

In this case, Samuel Sproule, by a lease, bearing date the 21st of 
July 1787, demised certain premises in the city of Dublin to Edward 
Hearn, to hold to him, his executors, administrators and assigns, 
from the 25th of March then last past, for the term of 120 yeara, at 
a pepper-corn. rent, to the 29th of September 1789, and, after that 
date, during the residue of the term, at the yearly rent of £16. 
9s* 7d., Irish currency. The lease contained a clause of distress ; 
and, if no sufficient distress, a proviso, in these words, ^^ that it 
should be lawful for Samuel Sproule, his executors, administrators 



March 16. 
Judgment, 



(a) 5 Ir. Law Bep. 65. 
(c) 9 It. Law Ecp. 17. 
(e) 2 Ii'. Law Rep. 223. 
is) 2DeG., BLAG. 459. 



(6) 1 Jr. Com. Law Bep. 186. 
(<0 lOEx. Bep. 59. 
(f) lOIr. £q. Bep. 411. 
(A) 3 Bing. N. C. 544. 



(i) 5 BH. 31 ; S. C, 2 D. & C. 180. 



VOL. 11. 



39 



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306 



CHANCERY REPORTS. 



1861. 

X. E, Court. 

^— y ■ ^ 

In re 
tubnbb's 

ESTATB. 
Judgment, 



and assigns, into the premises to re-enter, and the same to have 
again, re-possess and enjoy, as in his or their first and former 
estate, anything herein to the contrary notwithstanding.* The lease 
also contained a covenant by Edward Heam to pay the rent. The 
lessee's interest under this lease afterwards became vested in the 
owners in this matter, and is now to be sold in this Court. Samuel 
Sproule, at the, time he made the lease of 1787» held by a lease 
of 1782, for 125 years from the 25th of March 1782 ; so that the 
effect of the lease of 1787 was to leave no reversion in him. Samuel 
Spronle's interest came, by mesne assignment, to a Miss Roberts, 
and, being a chattel, is now vested in her legal personal representa- 
tives. It appears from the evidence, and is admitted, that there has 
been no payment of the rent of £16. 98. 7d. to Miss Roberts, or her 
representatives, for twenty-two years ; and the parties interested in 
the lessee's estate claim to hold the premises during the residue of 
the term, discharged of the rent, on the ground that, it being only a 
rentcharge, the 2nd section of the statute 3 & 4 IF. 4, c. 27, applies 
to it, and, therefore, is extinguished by the joint operation of the 
2nd and 34th sections of that statute. The lessor's representatives 
have filed a claim, by which they admit that Samuel Sproule, at the 
time he made the lease of 1787) had no reversion ; but, nevertheless, 
they claim to be entitled to the rent, because, notwithstanding thej 
have no reversion, yet the 2nd section of the statute is inapplicable 
to such a rent, although admitted to be only a rentcharge. Now, if 
Samuel Sproule had reserved to himself a reversion of but one day. 
It is clear that the decision in Grant v. Ellis would have been appli- 
cable to this case ; and' the rent, being what is there termed a 
conventional rent, would not be within the meaning of the word 
'' rent," in the 2nd section. On the other hand, if it were a rent- 
charge which Samuel Sproule, as possessed of a term of years in 
land, had charged upon the term in favour of a grantee, with a 
power of distress, such grantee's estate in the rentcharge would be 
extinguished, by his allowing twenty years to elapse without a 
payment, or acknowledgment of his right. James v. Salter^ and 
subsequent cases, may be considered as authorities for this position. 
The doubt in the present case arises from the circumstance that the 



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307 



deed of 1787 is in terms a demise reserTing rent, in the words gene- 
rally used in, and applicable to, a lease where the relation of land- 
lord and tenant is intended to subsist immediately on the execution 
of the instrument, and also contains a power of distress and re-entry 
applicable to that relation; while, from there being no reversion, 
the relation of landlord and tenant has not arisen, and does not 
exist. Pluck V. Digge$ declares that, in construing the word 
•* landlord" in the statute 25 (r. 2, c. 13 (Tr.J, it must be held that 
a person who had no reversion was not a landlord, within the 
meaning of the Act, as there is not the relation of landlord and 
tenant without a reversion. But that does not affect the question 
in this case. Here the question is, whether a rent may not be such 
a conventional rent as has been held not to be within the meaning 
of the word *' rent,"* in the 2nd section of the last Statute of Limita- 
tions, although the person entitled to the rent has no reversion, and 
consequently, there is not, strictly and technically, the relation of 
landlord and tenant ; and, whether the rent in this case is such a 
conventional rent, I am of opinion there may be such a conventional 
rent without a reversion, and the relation implied therefrom, and 
that the rent made payable by the deed of 1787 is such a rent. 
The grantee of a rentcharge may have a clause of re-entry in the 
instrument creating the rent ; but the wording of such a clause is 
quite different from the clause of re-entry in the deed of 1787 ; and 
in leases where the parties intend the relation of landlord and 
tenant to be created by the instrument. In the former cases, the 
power of re-entry is confined to entering and holding the lands until 
the arrears are satisfied ; and, if the grantee enter, the only interest 
he can have in the lands is a chattel interest of indeterminate dura- 
tion, until the arrears are satisfied. The estate of the grantor he 
never can acquire; but, in the latter cases, the re-entry of the 
lessor is, by the terms of the proviso, to restore him to his former 
estate; and, if he enters, he is in of and for his former estate. 
Now, the case of Doe d. Freeman v. Baieman (a) expressly and 
clearly decides that, where a termor for years demises lands for 



1861. 
L. E, Court. 




Judgment. 



(a) 2 B. ft Aid. 168. 



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308 



CHANCERY REPORTS. 



1861. 
X. E. Court. 



In re 
turner's 

ESTATE. 



a term co-ezteosive with his own, i^eserving rent, with a proviso 
for re-entry, he may, on entry for condition broken, recover the 
possession of his former estate in the term, although he has no 
reversion. That is this case. J. Sproule, or his assigns, conld 
Judgment, recover the possession of the lands, as of his former estate, on 
entering for condition broken. If so, how does the rent in this 
case differ from the conventional rents to which the statute has 
been held not to apply? It is a rent, by agreement between the 
parties, to be paid as a conventional equivalent for the right of 
occupation of the land ; and, if not paid, the party entitled to it 
can recover the possession of his old estate in the lands. It is 
true this estate is not a reversion ; but it is a possibility of reverter, 
not separated from the right to recover the rent, and which has 
exactly the same capability of being turned into the possession 
of the former estate that a reversion hits. Such a rent is, therefore, 
in my opinion, a conventional rent, as much as if there were a 
reversion instead of the possibility of reverter, and, as such, is 
not within the 2nd section of the statute; and I cannot help 
thinking that Lord St. Leonards had in his mind such a conven- 
tional rent without a reversion, when he used the words reported in 
p. 472 of 2 2>tf G., M. ^ (?., in the case of The Dean of Ely v. 
Bliu. . He says : — *' I think it clear, from repeated consideration 
of it, that refU^ in the sense in which it is spoken of in the 2nd 
section^ means rent of inheritance, and that it does . not mean 
rent reserved by a lease, for example, or rent in the common and 
ordinary form of a render of rent for property." This is the opinion, 
on repeated consideration, of the best and most experienced real 
property lawyer of' the age; and it seems to me plainly to refer 
not only to rent reserved by a letoe where there is a reversion, 
but to rent generally, when made payable as a render of rent 
for property. The cases as to tithes, referred to by Mr. fVarrem, 
show that the operation of the statute, even in the case of tithes 
(which, by force of the 1st section, are included {n the meaning 
attached to the word '* land," in the 2nd section), is confined to cases 
where there are two parties, each claiming an adverse estate in 



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CHANCERY REPORTS. 



309 



ESTATE. 



Judgment* 



the tithes; and the construction mast be the same as to *' rents ;** 1861. 

and in the case before the Court there are two parties, each -^ — ^v '' 

claiming an adverse estate in this rent, untied^ as that estate is, with tubner's 
the power, in the case of a breach of condition for the non-payment 
of the rents, of recovering possession of the land for the original 
estate of the lessor therein. For these reasons, I am of opinion 
that the claim must be allowed; but, as the question is one of 
considerable doubt, and does not appear to have been expressly 
decided, and as it has arisen by reason of the locket of the person 
claiming the rent, in lying by for twenty-two years, I allow the 
claim, without costs. 



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310 CHANCERY REPORTS. 



1861. 
RoUs. 



SIM V. SIM. 



F^. 8. 9. 13, fin the Rolls). 

16. 
Apnl 16. 

No predM In November 1843, the petitioner, Alexander Sim, sen., and the 

sary to-consti- respondent, Ale^nder Sim, jun., entered into partnership, as com- 

am^ wtU^*^ merchants. The terms of the partnership were, that the petitioner 

partnerrfiip ^^ ^ ^^ entitled to one-sixth, and the respondent to five-sixths 

An aoconnt of the profits. The business of the firm was carried on at Glasgow, 
drawn np in 

the handwrit- in Scotland, and at a place called Colooney-mills, in the county of 
ing of ono 
partner, A, Sligo, in Ireland, until September 1848, when a new arrangement 

%r tL dis- was entered into, by which the petitioner was to be entitled to 
^J^^^pJ**® one-third of the profits. The petitioner alleged that the new 
■ete ^of'^ttie"" ^rangement was entered into by way of concession to him, in 
Sm fth*^ ^^^^ ^ induce him not to press for a dissolution of the part- 
solution, and nership, and payment of his share of the profits. The respondent 

cess of the alleged that the arrangement was entered into as a favour to the 

assets oyer the 

original capi^ ^petitioner, who was about to be married. The partnership was 

tal, as repr&- 

sentmg the carried on on the new terms from the 18th of September 1848 

balance of pro- • * . 

fit over loss until the 18th of September 1849, when the petitioner entered 

^yiujgactions ^^^ * partnership with Andrew Hozie. On the occasion of the 

iMnioTO?dmwn ^dissolution of the partnership, an account was drawn up, and signed 

SSrtnw, ^ ^y *^® partners on the l7th of September 1849. On the same 

the amount ^y^ ^^ following letters were written by the respondent:— 
^^ ^ ^ " Colooney, 17th of September 1840. 

count A, after «< Gentlemen — I accept of your offer for the lease of Dromahair 
ciTing credit 

for various mills, &c., on the terms mentioned on the other side ; and, with 
payments 

made to him reference to my letter to your Mr. Alexander Sim, jun., of this 
by his co- 
partner, B, after the dissolution, struck a balance aeainst himself, and whidi 
account was assented to by B^Held, a stated and settied account, Uiough some 
debts due to tiie partnership were omitted as uncertain, v 

A party seeking to impeach or surcharge and ftilsify a stated and setUed account 
must state the fraud or error on which he relies, in the petition. 

If a partnership be admitted, the books are admissible in eyidence, in taking the 
account of the partnership transactions ; but tiie books of A are not admissible 
against B to prore a partnership, if it be denied. 



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CHANCERY REPORTS. 311 

date, regarding his interest in the business carried on in my name 1861. 

JRolU. 
here and at Glasgow, since 4th of November 1843, / hereby agree, > — -^ ' 

SIM 

in consideration of his said interest not being settled vp cU present, ^^ 

to advance, by cash or by my acceptance, or otherwise, an amount ^^* 

not nnder £2000, as the same may be required by you, to enable Statement. 
you to carry on the business at the said milL 

'* I am yours, respectfully — ^Ai^ex. Sim." 
" Say £2000. 
" Messrs. Alex. Sim, jnn., and Andrew Hozie." 

" Colooney, 17th of September 1849. 

" Sir — ^I have this day placed to the credit of your account in my 
boohs the sum of £1000 sterling, being to account of your interest of 
one-.sixth in the business carried on in my name here and in Glasgow, 
from 4th of November 1843 to 18th of September 1848 ; and your 
interest at one-third in the same firm, from 18th of September 1848 
to this date. I engage to have all the boohs connected with the busi- 
ness brought tq> and balanced with the least possible delay ; and 
when the remaining sum due you is ascertained, it will be placed to 
the credit of your account. It is understood that yon give every 
assistance in your power in having the accounts here and elsewhere 
brought to a close, and that you have no further interest in said 
business from this time henceforth. 

*' I am. Sir, your obedient servant — Alexander Sim.** 

" To Mr. Alex. Sim, jun." 

On the 1st of September 1857, a further account was drawn up 
by the petitioner, in his own handwriting, by which a balance was 
found to be due by the petitioner, of £35. 5s. 9d. The accounts set 
out the assets of the firm, consisting of stock on hands, debts, &c., 
existing at the date of the accounts respectively, and contained a 
debtor and creditor account ; and a balance was struck. The 
accounts were very long ; but, for. the purpose of this report, the 
result of them is sufficiently explained in the judgment of the 
Master (infra, p. 312, note), and in the judgment of the Master 
OF THE Rolls. 

The petition was filed in the month of March I860. It 
prayed for an account of the partnership which was carried on 
from 1843 and 1849; and also of another partnership entered into 



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312 CHANCERY REPORTS. 

18Q1. between the petitioner and the respondent in 1859. It did not in 
^^- v "^ any way refer to the accounts of 1849 And 1859, or make a case to 

SIM 

^^ surcharge and falsify any item therein. 

SIM. The matter having been referred to Master Litton, under the 

Staiemeni. 15th section of the Chancery Regulation Act, the petitioner, by his 
discharge, relied on the accounts of 1849 and 1857, as stated and 
settled accounts. As to the transaction of 1859» the defence made 
by the discharge was, that there was no partnership, and that the 
petitioner merely acted as the respondent's agent ; and in support of 
it produced a letter written by the petitioner, on the 3rd day of 
August. The only evidence of the partnership produced by the 
petitioner was the books containing the trapsactions in respect 
of which the partnership was alleged to exist. 

The Master, by his decretal order, dated the 20th of December 
I860, declared that the petitioner was entitled to an account of the 
partnership from its commencement, on the 4th of November 1843 
until its dissolution, on the 18th of September 1849; and that he 
was also entitled to an account of the dealings and transactions 
in relation to the limited partnership in 1859.* 

*The Master deliyered the following judgment: — "The anthorities which 
haye been relied on by the respondent (and all the leading anthorities apon the 
subject have been dted) quite establish the propositions upon which his Counsel 
baye relied : — 

'* Firstly ; yiz., that, if an account be otherwise settled, the resenrations of an item 
or items for further arrangement or discussion will not take from it its character 
of finality, or preyent it from being considered as a settled account. 

' ' Secondly ; that an account, once admitted, cannot be opened, on the ground that 
no party had adequate means of ascertaining whether it was erroneous or not, 
without charging specific acts of fraud. 

'* Thirdly ; that, when persons haye mutual dealings, signing the account is not 
necessary to make it a stated one,; but keeping it any length of time, without 
making an objection, will suiOSce. 

*< Fourthly ; that, if a merchant keeps an account by him for two years, without 
objection, it is considered as a * stated account. ' 

*' The question then is, whether the accounts which haye been settled, or wbidi 
are relied on as settled accounts by the respondent, being the exhibits Nos. 1 and 
2, come within these principles, and whether they are goyemed by them ? I am 
of opinion that they do not come within these principles, and are not goyemed by 
them. In my opinion ihey do not present a partnership account at all ; nor do Uiey 
afiect to present a partnership account 

** A partnership account, purporting to be a final settlement between the part- 
ners, to be complete, must contain, ftrrtty, the capital account; secondly, ihe 
profit and loss account; thirdly, the balance account ; fourthly, a separate aocoimt 



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CHANCERY REPORTS. 313 

From that order the respondent appealed. The statements in the 1861. 

Rolls. 
petition and discharge are fuUy stated in the judgment of the Mas- ^ 

SIM 

V, 

SIM. 



TEB OF THE RoLLS. 

Mr. F. W. Walsh and Mr. Rickey^ for the petitioner. 

Mr. Brewster^ Mr. Hemphill and Mr. Dowse^ for the respondent. 

For the petitioner it was contended, in support of the Master*s 
order, that neither of the accounts of 1849 or 1857 was a stated and 
settled account, and that it was not necessary, therefore, either to 
notice them in the petition, or to state any ground for surcharging 



for each of the partners, showing what cash and goods each has drawn out of the 
•concern daring the period of the account. No. 1 should show the capital in hands 
at starting; No. 2 (showing the net profits) should be added to No. 1. No. 3 
(lowing the net amount of property, oyer liabilities, at date of dosing) should be 
preciselj equal to the amount of Nos. '1 and 2. But the exhibits Nos. 1 and 2 
profoss to be merely an abstract of the balances found in the books at the date of 
dosing the partnership ; therefore, even if correct, forming only one ingredient in 
the items of which a partnership account must of necessity be composed. No such 
account can possibly be correct, unless thoroughly tested by the combination of the 
aboye-named thret accounts. But, on referring to the books, I find that, if the 
books are correct, these exhibits are manifestly and palpably incorrect, differ- 
ing widely from the books, omitting many balances, and incorrectly quoting 
others. Besides, the ledger is quite in an unsettled state, showing seyeral large 
properties unaccounted for, which, if properly brought to a dose, would greatly 
affect the relatiye interests of the partners. 

" Those accounts amount to a yeiy large sum ; and the undosed accounts are yery 
numerous. It is impossible that justice can be done until a true account of the 
profits and losses be made out. The following items of profit, for instance, appear 
to me not to haye been accounted for : — 

The Indian com account 

Commission account 

Consignment p«r " Maria " , 

Sligoshop , 

Seyeral consignments, upwards of 

Indian meal 

" In a correct partnership account, these profits must be accounted for by the party 
through whose hands they come. The exhibits Nos. 1 and 2 are also altogether 
defident, in not containing a separate personal account, showing what each party 
has drawn out of the concern during the partnership. These exhibits purport 
simply to show the excess of tiie assets oyer the liabilities, and would seem 
intended to conyey that each party was now entitled to his portion of that excess ; 
but in fact same should only go to his credit, against whatsoeyer sums he had pre- 
yiously drawn thereout ; and it might turn out that he had drawn in excess of his 
share of the profits. 

VOL. 11. 40 



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... Xll,555 


5 


8 


3652 


1 


10 


... 1608 


6 


3 


1107 11 


5 


8000 








3689 









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314 CHANCERY REPORTS. 

1861. and falsifying them, as the rule which required that to be done 

V— V ' applied only to stated and settled accounts : Irving v. Young (a) ; 

^ and they relied on the partnership books as clearly showing that a 

SIM. partnership existed in 1869. The respondent's Counsel relied on 

Argument. ^^^ accounts as stated and settled accounts, and relied on the rule 

established by Dawson v. Dawson (b) ; Johnson v. Curtis (c) ; PiU 

V. Cholmondely {d)\ Gray v. Minnethorpe (e) ; Lord Harduneke v. 

Vernon (f) ; Drew v. Power (g) ; Stupart v. Arrowsmith {h) ; Ticket 

(a) 1 Sim. & St. 333. (6) 1 Atk. I. 

(c) 3 Br. C. C. 266. (rf) 2 Ves. 5/^. 

(0 3 Ves. 107. (J) 4 Ves. 411. 

{g) 1 Scb. k Lef. 182. (A) 8 Sm. & 0. 17a 



** Haying reference to all these focts, it is eyident that exhibits Nos. 1 and 2 
cannot possibly show the tme position of either party, as regards their respectiTe 
interests in the estates; and that, if the accounts were properly closed, and die 
books balanced, the result would almost certainly be widely different from that 
shown in exhibits Nos. 1 and 2; and, therefore, no partnership acconnts whatsoerer, 
and nothing like a partnership account, has been taken or rendered. It follows 
that these exhibits prevent no bar to the taking of a regular partnership aocoimt, 
and that it was not necessary, to point out, either in the petition or in the diaige, 
errors, omissions or mistakes, because the exhibits themselyes do not even profess 
to present the account to which one partner is entitled as against another; and, so 
as settled accounts of a partnership concern, they amount to nothing ; nor, as 
they are framed, could they be the sabject of corrections, by reason of errors or 
omissions ; for they do not deal with a partnership account at all ; nor yet does 
the account of exhibit No. 3. These yiews refer to the partnership existing from 
1st of September 1843 to the 17th of September 1849; as to which the usual part- 
nership account must, in my opinion, be taken. 

'< As to the transaction of the year 1850, the subject of which was the caigo by 
the ' Egeria/ 1 am of opinion that petitioner was not a mere agent. I think the 
letters which passed between the parties in relation to same do, with the other 
facts and drcumstauces of the case, go to establish a partnership in 1859. That 
a large quantity of white wheat must haye been obtained, for the purpose of mix- 
ing with the red wheat, which was supplied by the respondent, seems certain; that 
such white wheat was supplied by the petitioner, who was to superintend the 
grinding, seems dear. It is alleged that the respondent supplied all the money 
necessary for the purchase of the white wheat ; but such fact is not made oat. 

"Therefore, upon the entire of the transactions and correspondence, I haye 
arriyed at the opinion that there was a partnership in relation to the red and 
white wheat concern, and that an account must be taken accordingly. Indeed, if 
it were otherwise, still, as some account must be taken to wind up the transaction 
of 1859, 1 do not see that any account more adequate for that purpose than a 
partnership account could be taken. As to the Statute of Limitations, I do not 
think that either it, or the time which has elapsed, presents a bar to the right to 
these accounts. Frame a decretal order pursuant to these luiings." 



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J 



CHANCERY REPORTS. 315 

V. Short (a); Darthez v. Lee{b)\ Sumner v. Thorpe {c); that it 1861. 

RolU, 
IS necessary, id order to impeach, to state m the bill matter to snr- ^ * 

SIM 

charge and falsify them. 

SIM. 

The Master of the Rolls. Am-ine. 

A motion has been made in this cause, on the part of the re- ^^^dgmwt, 
spondent, that the decretal order of E. Litton, Esq., the Master in 
this matter, signed the 20th of December I860, be set aside, and 
that the petition be dismissed with costs ; or, in case the Court 
should be of opinion that the petitioner is entitled to any relief in 
respect of the partnership which was dissolved in 1849^ that the 
two accounts in the notice mentioned, dated in 1849 and 1857, 
should be deemed conclusive between the petitioner and respondent ; 
and that the accounts in respect of the said partnership should be 
limited as in the notice of motion mentioned ; and with respect to 
the limited partnership alleged by the petitioner to have been 
entered into between the petitioner and the respondent in 1859) 
the notice of motion seeks that the Court should declare that no 
such partnership existed. 

By the decretal order of the Master it is ordered, first, that 
the petitioner is entitled to an account of the dealings and trans- 
actions in relation to the partnership between the said petitioner 
and the respondent, which was entered into upon the 4th of 
November 1843, and was dissolved on the 17th of September 
1849; and secondly, that the petitioner is entitled to an account 
of the dealings and transactions between the petitioner and re- 
spondent, relative to the limited partnership entered into between . * 
the petitioner and the respondent in the year 1859, in the cause 
petition mentioned; and consequential directions are then given 
by the order. 

The two branches of the case are quite distinct, and involve 
different considerations. The defence to the first branch of the 
case, which I shall state more fully just now, is that, after the 
partnership between the petitioner and respondent was dissolved,. 

(a) 2 Vm. 289. (6) 2 Y. & CoL, Ex., 5. 

(c) 2 Atk. 1. 



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316 CHANCERY REPORTS, 

1861. in 1849) an account was drawn up in that year by the petitioner 
> r-L^ (all of which is in his own handwriting), ascertaining the balance 

SIM 

^^ due to the petitioner in respect of the said partnership; and a 

siii. further account was drawn up by the petitioner, in his own hand- 

Judgment, writing, in the year 1867, correcting some errors in the first account, 
and striking a balance; and the respondent contends that such 
accounts are to be considered as stated and settled accounts, or 
that the latter account is, at all events, to be considered a stated and 
settled account. The petitioner has wilfully suppressed from the 
petition all allusion to the said accounts, and has not put in issue 
any matters to show that they should either be set aside, or liberty 
given to surcharge and falsify them. The Master has, by his order, 
in effect set aside the two accounts, and directed a general account, 
after the lapse of many years. I am of opinion that the Master's 
order is erroneous in having directed a general account in respect 
of the partnership which was dissolved in 1849, the accounts of 
1849 and 1857 not having been put in issue by the petition, or 
any ground stated in the petition why those accounts should be set 
aside. 

As to the second question which arises, the Master has decided 
that there was a limited partnership, in the year 1859, between the 
petitioner and the respondent. But his decision is founded in pari 
on the petitioner's own books, which were clearly not evidence 
against the respondent on the question whether there was or was 
not a partnership in that year, the respondent alleging that, in 
respect of the transactions in that year, the petitioner acted only 
as his agent. 

The petition states the formation of the partnership between the 
petitioner and respondent in November 1843; the petitioner being 
entitled to one-sixth, and the respondent to five-sixths of the profits. 
The latter part of the fourth paragraph of the petition states what 
I consider to have been a very improper allegation, having regard 
to the facts of the case, that ** No statement or settlement of the 
accounts of the partnership was come to between the petitioner and 
Alexander Sim " (the respondent). 

The petition then states the mode in which the business was 



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CHANCERY REPORTS. 317 



carried on, the respondent residing at Glasgow, and the petitioner 1861. 
at the Mills of Coloonej, in the countj of Sligo. The petitioner i_ ^ ' » 
states that the respondent retained in his possession all the books, '^ 

&c, and that the petitioner was unable to obtain accnrate infer- sim. 
mation as to the partnership accoonts. That statement is not, in j^Hd^^u 
mj opinion, sustained by the evidepce. The petition then states 
that, in the years 1846 and 1847, the respondent embarked in large 
speculations in grain, on his own account, during which he incurred 
heavy losses ; and, to meet his liabilities on this account, he applied 
large sums of money connected with and arising from the partnership , 
business. If there is any truth in this statement, which is wholly 
denied by the respondent, all the partnership books were lodged in 
the Master's office since, I believe, the month of June last, and the 
petition might have been amended, and the items put in issue. At 
the hearing of this appeal, Counsel did not refer to any item in the 
books in support of the statements^ except as I shall hereinafter state. 
The petition then states that, in consequence of these losses, the 
petitioner insisted that the partnership should be dissolved, but the 
respondent requested that the connection should not be broken off; 
and he proposed that the petitioner*s share in the co-partnership 
should be increased to one-third ; and the petitioner refers to a let- 
ter of his, of the 15th of August 1848, and the respondent's reply 
thereto. 

The petition then states that the partnership was carried on, on 
the new terms, from the 18th of September 1848 to the 18th of 
September 1849, when it was dissolved ; and that the petitioner 
then entered into partnership with a Mr. Hozie. The petition 
suppresses altogether the fact that an account was then drawn up 
by the petitioner himself, in his own handMrriting ; and the petition 
states (paragraph eleven), that the petitioner insisted on a settle- 
ment of his accounts with the respondent, and the payment of the 
sum of money which might be found due to him upon such settle- 
ment. But the said respondent, as the petition states, on that 
occasion also avoided coming to any settlement, assuring the peti- 
tioner that, after the large losses which he had sustained, he could 
not then pay. the amount which might be found due. But the 



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Judgment. 



318 CHANCERY REPORTS. 

1861. petition states tbat the respondent promised to advance to the peti- 
_3 ^ ' tioner a sum in cash, or bj his acceptance or otherwise, of not less 
^^^ than £2000, on account of the sum which on the ultimate settlement 
SIM. of the accounts should appear to be due ; and that the respondent pro- 
mised to wind up the partnership accounts with all possible speed; 
and the petitioner refers to two letters of the 17th of September 
1849, the one to the petitioner and the other to the petitioner and 
the said A. Hozie, but suppresses the account drawn up bj himself 
in September 1849. I think, howeyer, that those letters establish that 
the account of 1849 was not a stated and settled account. The peti- 
tion their proceeds, to paragraph 19 inclusiye, to refer to certain 
matters connected with the acceptances and sums paid pn account 
in respect of the balance claimed by petitioner on foot of the part- 
nership ; but suppresses all allusion to the account drawn up bj 
himself in 1857* striking a balance. The rest of the petition relates 
principally to the alleged limited partnership in 1859^ which part 
of the case I shall hereafter advert to. 

It appears, from the discharge of the respondent, that the state- 
ment in the petition that the respondent retained in his possession 
all the partnership books, &c., is not correct ; for some of the part- 
nership books were kept at Colooney by the petitioner, or by clerks 
employed by him ; and other books of account of the partnership 
were kept at Glasgow by one John Thom, a book-keeper in the 
employment of the firm ; and the discharge states that, previous to 
the dissolution of the partnership in September 1849» all the part- 
nership books and accounts, which had been previously kept at 
Glasgow, were brought over to Colooney by the said J. Thom and 
by the respondent; and the petitioner and 'Thom, to the respondentia 
knowledge (he having been himself at Colooney), carefully examined 
all the books and accounts of the partnership so kept at Glasgow, 
and also those kept at Colooney by himself; and the respondent saw 
the petitioner and the said Thom going over the said books together 
at Colooney, in which they were occupied for about a week. The 
respondent then states that he inquired from Thom whether he 
and the petitioner had been particular in examining the accounts ? 
and he said they had. Thom, however, is dead; and it is very 



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CHANCERY REPORTS. 319 

nnjast on the part of the petitioner to lie by for so many years, 1861. 
and, as soon as the clerk is dead, whose evidence would have been »— ,^ ' * 
so important, to bring forward the present suit, and make the very ^^^ 

improper statement in the seventh paragraph of the petition, that sim. 
the respondent •' retained in his possession all the books of account, j^idoment. 
papers and documents connected therewith (t. e^ connected with 
the partnership) ; so that the petitioner remained ignorant, and 
was unable to obtain accurate information as to the partnership 
accounts." The discharge then states that the petitioner, by means 
of such examination, obtained full and accurate information as to 
the state of the partnership accounts, both at Glasgow and Colooney ; 
and the petitioner, after the said examination of the said books, and 
in the year 1849* made out from the said partnership books, in his 
own handwriting, a detailed statement of the accounts of the i9aid 
partnership, Which contains two columns, headed respectively Co- 
looney and Gksgow, in which columns are entered, opposite each of 
the items in said statement, a number referring to the books kept 
at Glasgow and Colooney respectively, in which the particulars of 
each of the said items appear; and the discharge refers to said 
account in the petitioner's handwriting. 

The discharge then states that the stock on hands of the said 
partnership is valued in the said account at £10,056. 12s. 9d. ; 
and the respondent refers to a paper in the handwriting of Thorn, 
dated the 19th of September 1849> and at foot thereof is a memo- 
randum signed by both the petitioner and the respondent, as follows, 
^ The above is taken as correct." The seventh paragraph of the 
discharge then denies the statement in the eighth paragraph of the 
petition, that the respondent had, in the years 1846 and 1847, 
embarked in speculations in grain upon his private account, or 
that he had incurred losses, or applied large, or any, sums of money 
arising from the partnership business, to meet the liabilities of the 
respondent. No evidence has been read to me in support of this 
statement in the petition. One entry was read, which is not put 
in issue, that a part of the funds of the partnership were applied 
in payment of a cargo of guano, purchased on the private account 
of the respondent. But Counsel for the respondent stated that if 



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320 CHANCERY REPORTS. 

1861. any sucU matter had been put in issue, it could have been proved 
^ ^, ' ^ that the sum so applied was replaced. 

^^^ The discharge then states that the increase of the petitioner's 

SIM. share of the profits from one-sixth to one-third was made because 
Judgment. *^® petitioner was about to be married, and for no other cause 
whatever. 

The discharge then relies on the account drawn up by the 
petitioner in 1849, and states that the petitioner being about to 
commence business at Dromtihair Mills, the property of the re- 
spondent, in partnership with A. Hozie, the respondent agreed 
to credit, and did credit, the petitioner and A. Hozie with £1000, 
in respondent's bboks ; and did also agree to advance by cash and 
acceptance a sum of £2000, in order to give the petitioner a 
capiXal with which to commence the business of the firm of Sim 
^ and Hozie. 

The discharge then explains a transaction adverted to in the 
petition, relating to an acceptance for £1000, which the respond- 
ent eventually took up, not to embarrass the petitioner and 
Hozie. 

The discharge then refers to some matters which, from the 
view I take of the case, are not material to advert to ; and refers 
to the particulars of the account of 1849, drawn up by the peti- 
tioner. The discharge then states that the petitioner having 
received large payments from the respondent, on account of his 
share of the prints of the partnership which was dissolved in 
, 1849, and retained the rent payable to the respondent for the 
Mills of Dromahair for several years, the petitioner, about the 
1st September 1857, made out a second account in his own hand- 
. writing, of the business of the partnership : and the short result 
of that account is this ; that the petitioner having credited himself 
with Ute one-sixth of the profits on four seasons, from 1844 to 
September 1848, and with one-third of the profits from September 
1848 to 1st of September 1849, when the partnersHip was dissolved, 
which profits amounted to a less sum than was stated in the account 
of 1849, and having also credited himself with some other small 
sums, and having debited himself with various sums, received 



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CHANCERY REPORTS. 321 

from the respondent to the 1st of September 1857, a balance is 1861. 

RolU. 
struck, in the petitioner's handwriting, hy which it appears that, ^^ ^ ^ 

SIM 

on the Ist of September 1857, he was over-paid the entire of ^ 

the sum due to him on foot of the said partnership, by a sum of sim. 
£35. lis. 9d. . JudgmeiU. 

What justification there was, or is, for the petitioner suppress- 
ing all reference to that account of 1857, in the petition, is not 
suggested by the petitioner's Counsel ; nor do I understand on what 
grounds the Master had authority to set aside the account of 1857, 
drawn up by the petitioner himself, the account not having been 
put in issue, either by the petition, or by an amended petition, or 
any matter put in issue to show that it ought to be set aside, or 
liberty given to surcharge or falsify it. The Master has decided 
the case upon grounds not stated in the petition ; and the incon- 
venience of such a course is this, that, on my calling on Counsel to 
refer to the partnership books, and satisfy me that the accounts 
of 1857, as drawn up, were erroneous, a notice was served, dated 
the 12th of February, referring to about 127 numbers in the Colooney 
ledger, to upwards of 100 numbers in the Glasgow ledger, and to 
upwards of 50 numbers in other ledgers, making together upwards 
of 270 numbers ; but Counsel for the petitioner were so entirely 
uninstructed on the case, that they were unable to explain any one 
of those numbers, or show how they falsified the account of 1857. 
The discharge then explains the account of 1857* 

The ground on which the Master has in effect set aside the 
account of 1857 is this, that the accounts of 1849 and 1857, as he ' 
aUeges, do not present partnership accounts at all. So far as the 
account of 1849 is concerned, the contemporaneous letters, I think,* 
show that it was not a stated and settled account ; and it was, no 
doubt, subject to be set right, as it was by the account of 1857 ; but 
the Master considered the latter account as no partnership account, 
because, as stated in his judgment, ** A partnership account, pur- 
porting to be a final settlement between the parties, to be complete, 
must contain, first, the capital account ; secondly, the profit and loss 
account ; thirdly, the balance account ; fourthly, a separate account 
for each of the partners, showing what cash and goods each has 
VOL. 11. 41 



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322 CHANCERY REPORTS. 

1861. drawn out of the coDcem during the period of the account. No. 1 
RolU, 
^.^-v~«^ should show the capital in hands at starting. No. 2 (showing the 

SIM 

^^ net profits) should be added to No. 1. No. 3 (showing the net 

8Uf. ^ amount of property oyer liabilities at date of closing) should be 
Judyment precisely equal to the amount of Nos. 1 and 2. But the exhibits 
Nos. 1 and 2 " (that is, the accounts drawn up in the petitioner's 
handwriting in 1849 and 1857, and which, I believe, are numbered 
1 and 5) *' profess to be merely an abstract of the balance found on 
the books at the date of closing the partnership ; therefore, even if 
correct, forming only one ingredient in the items of which a part- 
nership account must, of necessity, be composed." The Master, in his 
judgment, then states that, if the books are correct, the exhibits are 
palpably incorrect — that the ledger is in an unsettled state, showing 
large properties unaccounted for. The Master then states that it is 
impossible that justice can be done, unless a true account of the 
profits and losses be made out. The Master then states ^^ That 
tlie following items of profit, for instance, appear not to be accounted 
for ; " and the Master then states certain items, and then refers to 
other objections. Now, the injustice of this course of proceeding 
(which, in my opinion, is contrary to several decisions from the 
time of Lord Hardwicke, to which I will just now refer) is this, 
that if the accounts of 1849 and 1857 had been put in issue by the 
petition, instead of being wilfully suppressed, and if the objections 
stated for the first time in the Master's judgment had been relied 
upon in the petition, as grounds either for setting aside the 
account of 1857, or surcharging and falsifying it, the respond- 
ent would have had the opportunity of answering the several 
objections. I understand from Counsel, that the Master has con- 
sulted an accountant, and acted on his opinion. The effect of the 
Master's judgment appears to be this, that there was no stated and 
settled account. He considers (adopting the opinion of the account- 
ant) that, unless an account between partners be drawn up in 
the precise form he suggests, that it is no account. I cannot concur 
in that proposition, which was never, up to the present time, decided 
in any case. According to the Master's opinion, if two partners, 
having a general knowledge of their affairs, dissolve partner- 



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CHANCERY REPORTS. 328 

ship, and their books have not been kept with strict regularity, 1861. 
showing the profit or loss on each particular transaction, and show- *_, , ' -■ 
ing, }n a general profit and loss account, the balance of profit over 
loss, if there be a profit, that the partners must employ an account- sim. 
ant, must have the accounts all made out, on the precise principle judgmau, 
stated by the Master, and can come to no amicable arrangement 
without the intervention of an accountant. Suppose two parties 
were to draw up an account, stating the original capital, then 
stating the realised or existing assets at the time of the dissolution, 
and taking the excess of the assets over the o^ginal capital as repre- 
senting the balance of profit over loss on the several transactions, 
and then ascertaining the sums or property drawn out of the part- 
nership by each of the partners, and the amount coming to each 
partner ; such account, according to the decision of the Master, is 
no stated or settled account, although drawn Up in the handwriting 
of one of the partners, and admitted by the other to be correct. I 
believe that was the course adopted in this case, except that some 
debts due to the partnership were left out of the account, as it was 
not certain whether they would be paid; but the respondent 
has always been ready to account for debts received, and not in- 
cluded in the sum which, on the account of 1857, was payable to 
the petitioner. According to the Master's decision, although the 
partner who draws up the account, in his own handwriting, 
ascertaining the balance due to him, is paid such balance by his 
co-partner, he is, at the end of ten or eleven years, to be at liberty 
to file a petition for a general account, suppressing all reference to 
the account, and not specifying a single item of surcharge or falsifi- 
cation. Partners who annually pay Income-tax must be assumed 
to have some knowledge of the state of their accounts ; but the 
accountant, whom the Master has unfortunately consulted, considers, 
I presume, that there can be no amicable settlement between two 
partners, at the close of their partnership, without the expensive 
process of employing an accountant. 

Unless the Master be right, that the account of 1857 was not a 
suted and settled account at all, it is, of course, impossible that' the 
decretal order can stand ; because, if it was a stated and settled 



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324 CHANCERY REPORTS. 

1861. account, but is to be set aside (although drawn up by the petitioner 
JRoik, 
>— y ^ himself), for gross errors, or if liberty should be given to surcharge 

SIM 

and falsify the account, qn account of errors, the errors are not, for 
SIM. the first time, to be stated in the judgment of the Court. They, or 
Judgmeni, ^^^ ^^ them, should be put in issue, so as to enable the respondent 
to show, by his answer, that there is no error. An affidavit in reply 
to the discharge has been filed, by which the petitioner seeks to get 
rid of the eifect of his having drawn up the accounts of 1849 and 
1857 ; and he states, amongst other matters, that inasmuch as the 
accounts *' were never intended to be anything but as a means of 
ascertaining what amount, at the time, I had a right to expect from 
the respondent, for the purpose of entering into a new partnership, 
the objections were never, in fact, discussed between me and the 
respondent, or made the subject of any accounts.'' This may be true 
as to the account of 1849, but is wholly untrue as to the account of 
1857; and the letters referred to by the petitioner do not, in my 
opinion, establish or verify the allegation of the petitioner ; but the 
letters and facta relied on by the petitioner ought to have been put 
in issue by the petition, a:nd not by an affidavit in . reply, as has 
been decided by the Court of Appeal. Many matters are stated in 
the voluminous affidavits in reply, which do not appear to me to be 
relevant to the. question which I have to decide; and that is, whether 
the account of 1857 is to be treated as a nullity or set aside, or 
liberty given to surcharge and falsify it, where the petitioner has 
thought fit to suppress all allusion to it in the petition. 

In the case of Dawson v. Dawson (a), it was decided by Lord 
Hardwicke, ^'That where a petition is brought for a general 
account, and the defendant sets forth a stated one, the plaintiff must 
amend his bill, for the stated account is prima facie a bar, till 
particular errors are assigned, to the stated account.'' The same 
point was decided in Johnson v. Curtis (b) ; Lord Thurlow said, 
^* The expression ' errors excepted ' did not prevent its being a 
settled account ; and ihe balance being carried over showed it 
was sOf and, therefore, the errors should have been pointed out" 
Those observations are very applicable to the account of 1857. 

(a) 1 Aik. 1. (6) 3 B. C. C. 266. 



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CHANCERY REPORTS. 325 

The decree at the Rolls, dismissing the petition, was accordingly 1861. 

JRolU, 
affirmed. The same point was decided in Taylor ▼. Haylin (a). < s^ — -^ 

SIM 

Several of the cases are referred to in the note to Mr. Eden*$ edition. 

V 

The distinction between cases of guardian and ward, and other sim. 
persons standing in a fiduciary relation, and cases where no fiduciary judgment. 
relations exist, is adverted to in Pitt v. Cholmondley (6), and in 
the important judgment of yice-Chancellor Wood, in Blagrave v. 
RQuth{e). In the case of Drew v. Power {d)^ Lord Redesdale 
stated : — *' One rule material to observe, in all cases of account, is, 
that where there has been a settlement of account, and either the 
account has been signed, or a security taken on the footing of the 
account, a Court of Equity does not open this transaction and throw 
it again between the parties, as if no such transaction |iad happened, 
unljBSs the evidence which is produced (and that evidence founded 
on eharges in the bill) shows the whole transaction to be so iniqui- 
tous that it ought not to be brought forward at all to afiect the 
party sought to be bound. If the account impeached be a settled 
account, or if an instrument has been executed on the foot of it, the 
Court expects that the errors should be specified in the bill, and 
proved as specified ; otherwise it would be easy to overturn the 
fairest accounts, and those settled in the most solemn manner, where 
there happens to be any complication in their nature.** 

Lord Eldon, in the case of Chambere v. Goldwin{e\ states: — 
*' The law, as well as the act of the parties, provides that accounts 
settled shall not be set aside but for fraud, or surcharged and falsi- 
fied but for error.** *' The bill must either seek to set 

aside those accounts, as imputing the settlement of them to fraud, 
or, letting them stand, must seek to surcharge and falsify them ; in 
which case, if they are to be considered settled and signed, the rule 
is fixed, upon the most obvious principle, that some error must be 
charged ; as it is impossible for the defendant to defend himself, if, 
under a general charge, not specifying any error, the plaintiff may 
come, at the hearing, with proof of those errors of which the defend- 

(a) 2 B. C. C. 810. (6) 2 Yes. sen. 566. 

(c) 2 Kay ft Johns. 509. (<0 I Sch. ft Lef. 192. 

(e) 9 Vei. 265. 



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326 CHANCERY REPORTS. 

1861. ant has heard nothing. The point was decided upon the ground, 
JRolU, 
' " >, "' by Lord Thurlow, on my objection, that if accounts are impeached, 

SIM 

^^ on the ground of error, jou must specify some or one error, and 

SIM. prove that ; and that is a ground to surcharge and falsify. I do not 
Judgwunt. ifOCoUect a case in which the Court has gone the length of declaring 
anything error, unless the declaration has been confined' to the sub- 
ject of that which is alleged to be error upon the pleadings. That 
would be attended with great inconvenience ; for it is very possible 
there might be cases in which the opinion of the Court might be clear 
at the hearing, that there was error; and yet, if it was distinctly 
put in issue, the Court might be satisfied that transactions had 
taken place, upon which it was impossible to consider it error." 

These observations of Lord Eldon are very applicable to the 
present case, in which the Master has relied on matters in his 
judgment, not put in issue, and which, if put in issue, might have 
been answered ; and when I called on Counsel to read for me the 
proof of what was stated in the Master's judgment, th^y were 
unaUe to do so. The case of Chambers v. Goldwin was referred 
to and approved by yice-Chancellor Wood, in Blagrave v. 
Rouih (a). There is much doubt whether the account of 1849 is to 
be considered as a stated and settled account, having regard to 
the contemporaneous letters. I think it cannot *be so considered ; 
but I am of opinion that the account of 1857 is to be considered 
prima facie as a stated and settled account ; and that the petitioner 
having suppressed all reference to said account in the petition, 
and having put no matters in issue to show that it should be set 
aside, or why liberty should be given to surcharge and falsify the 
account, the general account directed by the Master, as to dealings 
and transactions in relation to the partnership between the peti- 
tioner and the respondent, which was entered into upon the 4th 
of November 1843, and was dissolved on the 17th of September 
1849» should be set aside. 

The notice of motion in this case was served on the 14th of 
January 1861. It appears, from a notice served on the respondent^ 
on the 4th of January 1861, by the solicitor for F. Y. Meynell, Esq., 

(a) 2 Kay ft J. 523, 529. 



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CHANCERY REPORTS. 327 

that the petitioner, by indenture, dated the 26th of December 1861. 
I860, assigned, by way of mortgage, to the said Frederick Villiers ^ — ' 

8IM 

Meynell, Esq., in the county of Middlesex, Barrister-at-law, all ^^ 

sums of money due to him by the respondent, and all benefit of ^^^* 
this suit, and of the order of the Master, to secure the sum of Judgment. 
£1544. 4s. 5d. The suit is, therefore, defective, for want of parties, 
as well as defectiye in the particulars I have mentioned ; and the 
petitioner was not justified in serving notice of appeal, suppressing 
that fact, as he has suppressed the other important parts of this 
case. I shall, therefore, set aside the order of the Master, so far 
as it directs a general account of the said partnership dissolved in 
1849> I' do not order the petition to be dismissed, because the 
petitioner may possibly be entitled to the account stated in the 
notice of appeal. ' 

As to the second branch of this case; the question is, whether 
or not there was a limited partnership between the petiti(mer and 
and respondent in 1859? The Master has, by the decretal order, 
declared that the petitioner is entitled to an account of the dealings 
and transactions between the petitioner and the respondent, relative 
to the limited partnership entered into between the petitioner and 
the respondent in the year 1859. The respondent wholly denies 
the existence of any such partnership, in the fifty-sixth paragraph 
of the discharge. In a letter of the petitioner to the respondent, 
of the 3rd of August 1859, he states, ^* I would act merely as agent 
for you in the matter, that you might not have any trouble in the 
matter." It is not necessary to go through the evidence on this 
part of the case, as it appears to me that the petitioner has feuled 
to prove satisfactorily a case of partnership in 1859, unless the 
books of account of the petitioner be evidence. I have not heard 
any ground suggested, on the part of the petitioner, why they should 
have been admitted. If you once establish that there is a partner- 
ship, partnership books are admissible in evidence; but where one 
party denies that there was any partnership, I am at a loss to 
understand on what principle the other party is to produce the 
books to prove the partnership. Any person acting as agent for the 
wealthiest merchant in the United Kingdom might, if such evidence 



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328 CHANCERY REPORTS. 

1861. was admisssible, make himself a partner. There are suspicioas cir- 
v,,-v.. ' —^ cumstances coDnected with these books, adverted to by Mr. Brewster. 

SIM 

^^ X shall, therefore, declare that th^ said evidence was inadmissible ; 

SIM. and I shall set aside the Master's order, so far as it directs an 
Judgment, account in respect of the alleged limited partnership of 1859- 

On the 25th of April 1860, the respondent made an affidavit, 
under the Irish Bankrupt and Insolvent Act 1857, that the peti- 
tioner was indebted to hip in the sum of £2020 ; and the effect 
of directing the taking of general accounts in the Master's office, 
which might not be disposed of for years, would be to have the 
proceedings on foot of that affidavit suspended, as, the Bankrupt 
Court probably would not, pending the taking of a general account, 
allow proceedings to be taken on the said affidavit. No application 
was made at the hearing to amend the petition ; such application 
was not made, I presume, in consequence of the decision in M^Na- 
mara v. Blake {a\ and the cases referred to in the judgment in 
that case. I shall make the following order: — 

Order. It is ordered, by the Right Honorable the Master of thk 

Rolls, that the order of Edward Litton, Es(][., the Master 
in this matter, bearing date the 14th of November, and 
signed the 20th of December I860, be set aside, so far 
as it directs that the petitioner is entitled to an account 
of the dealings and transactions in relation to the partner- 
ship between the said petitioner and the respondent, which 
was entered into on the 4th of November 1843, and waa 
dissolved on the l7th of September 1849; the Court being 
of opinion that such general account should not have been 
directed, having regard to the account of the 1st of Septem- 
ber 1857, drawn up in the petitioner's handwriting, and 
which account is not put in issue by the petition, nor anj 
ground stated in the petition for setting aside the same, or 
surcharging or falsifying it ; and it is further ordered thai 
the said order be set aside, so far as it directs an account 
of the dealings and transactions between the petitioi)er and 

(a) Ulr.Eq. Rep.527. 



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VOL. 11. 42 



CHANCERY REPORTS. 329 

respondent, relative to the limited partnership stated in the 1861. 

Rolls. 
said order to have been entered into between the petitioner ' , — 

SIM 

and respondent in the year 1859; the Court being of opi- ^^ 

nion that the books of account admitted in evidence by the 8i>i* 
Master, as evidence of such partnership, were not properly Order. 
admissible for such purpose, and that the other evidence on 
the part of the petitioner does not establish such partner- 
ship, having regard to the discharge, and the evidence 
given' on the part of the re^>ondent ; and it is, accordingly, 
ordered that the petition, so far as it relates to the said 
alleged limited partnership, be dismissed with costs, to be 
paid by the petitioner to the respondent, when taxed and 
ascertained ; and it is further ordered that the directions in 
the said order, consequential on the directing of the said 
accounts, be also set aside ; and it is further ordered that 
the petitioner and respondent do respectively abide their 
own costs of this motion, and order thereon; and it is 
further ordered that the deposit lodged, with the Registrar 
be returned to the respondent 



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330 CHANCERY REPORTS. 



1861. 
L. E. Court, 



Srantretr ^i^itiiti Court. 

lo the Matter of the Estate of 
PETER SARSFIELD COMYN, Owner and PetUioner. 

April 18. 

The power This was a motion to make absolute the conditional order for the 

given to the 

LandedEstates apportionment of the rent reserved by the lease under which the 

Court, nnder 

the 72nd sec- lands for sale (with others) were held, as between landlord and 

tion of 21 & 22 

Vic, c. 72, is tenant. The owner's estate ,was free from incumbrances. As the 

and exists ^th ^^^ ^^ ^^^ ^"^^J Stated in the judgment, it need only be 

UL incumbered '^^^'^tioned that Laurence Comjn, the father of the owner, by his 

b^d^^tote" ^'^ ^*^^ ^^^ ^^^^ ^®y ^ November 1815, directed that a sum 

P®<»5f«°J?^ of £11,000 Government stock should be set apart, out of his per- 
the landlord is ' r » r 

not necessary ; sonal property, for the purpose of providing an annual sum of 
but the Court r r ji r r r o 

requires that £386, to be allotted for the payment of the head-rent of £380, 

it should be ... 

dearly shown payable out of all the lands comprised in the said lease, the 

that his interest ^ , , . 

is not in any extra £5 a-year to be applied m payment of any expense that 

Af)T)l*PPlAn1p Ha 

gree made less might attend the payment of the said rent ; and the said testator 

joyable, or less ^^^^<^ ^^^^ ^ ^^^ ^ ^^^ ^^^ ^^^ inheritance of the said lands 

than Wore. ^^^^^ ^ purchased, whatever part of the said sum of £11,000 

K, however, miglit \^ necessary lo effect such purchase might be applied 

reason to thereto for the benefit of the testator's sons John and Peter ; 
OelieTe that the 

petition has and the said testator gave and devised the lands of Sellemamore 
not been pre- 
sented for a to his second 'son John Comyn, and his heirs ; and to his son Peter, 
bona fide sale. 

but for the pur- and his heirs (the owner and petitioner), the lands of Spiddle, 
pose of obtain- , . i» . 

ing an appor- beiu^ the lands the subject of the petition in the said matter. 

Court will John Comyn, having, entered into possession of the lands so de- 
order a«^\Sl ^*®*^^ ^ ***™» ^^^^ ^" 1834, unmarried and intestate. On his death, 
rentL^'onlv^ diflerences having arisen between the surviving members of his 
^**^. *^® P^ family as to the division of his property, by a deed of compromise, 

duly prose- made in the year 1839, it was agreed that the sum of £10,153. 
cated. and the .^ » o 

sale duly had. IGs. lid., equal to £11,000 late currency, should be transferred 



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CHANCERY REPORTS. 



331 



to the trustees therein mentioned, upon the trusts of the will of 
Laurence Comjn ; and by the said deed the said lands of Seller- 
namore were conveyed to Francis Coipyn (brother of the owner), 
charged with the payment of* certain annuities. The reversion 
expectant on the determination of tlie said lease was vested in 
Andrew Martyn. 

The said Andrew Martyn filed an affidavit as cause against the 
said order, in which he swore (amongst other tilings), that the lands 
of Spiddle were about ten miles from the town of Galway, and 
were a great additional security for the rent. That the lands of 
Sellemamore, which were fifteen miles from the said town, con- 
sisted principally of wild mountain land, and that both the said 
lands of Spiddle and Sellemamore were in a very wild and uncul- 
tivated party of tUe county. That all the lands were oocupied by 
a poor tenantry in small holdings, and that, during the famine 
years, a very small portion of rent was paid by the tenants of the 
lands of Sellernamore. The said Francis Comyn also filed an affidavit 
as cause, stating that he believed ^n apportionment would operate 
against the intention expressed in the will of Laurence Comyn. 
That the petition for said was not presented for the purpose of a 
bona fide sale, but for the purpose of getting possession of such 
portion of the funds bequeathed by the will of Laurence Comyn 
as the said P. S. Comyn could establish a claim to, and thus, in 
eflect, of setting aside the said will, and the said deed of compromise. 
P. 8. Comyn filed an answering affidavit to that of the said Andrew 
Martyn, in which he swore that, in his opinion, the said Andrew 
Martyn could not be injuriously affected by the apportionment, but 
that if the cause shown in the affidavit of the said Andrew Mar- 
tjn were allowed, it would seriously damage the sale of the estate ; 
and that Andrew Martyn was entirely unacquainted with the pro- 
perty in question, having never visited it. That the rent was never 
in arrear for twenty-three years ; and that there were more than 
5400 acres of land in the property, which, by the last Ordnance 
valuation was estimated at £750 a-year, but which actually pro- 
duced £1100 per annum. That the lease was purchased in the 
year 1799, for £4260, since which time property had greatly in- 



1861. 
L. £s CowrU 

In re 
COMTN's 
ESTATE. 

StaUmenU 



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332 



CHANCERY REPORTS. 



1861. 
X. E. Court. 




Argument, 



creased in value. That the present rental of the lands of Seller- 
namore was about £826 per annum, and that of the lands of 
Spiddle £246 per annum: 

Mr. James Murphy (with him Mr. M. MarrU\ for the owner. 

The 72nd section of the 21 <& 22 Fife., c 72, makes it discK- 
tionarj with the Judge to apportion rent as between landlord and 
tenant ; and he should do so unless he sees that some disadvantage 
will accrue to the landlord. It would nullify the Act if mere oppo- 
sition of the landlord were sufficient to prevent an apportionment— 
[LoNOFiELD, J. No doubt, mere opposition is not sufficient]— 
The Court should only see whether it is reasonable to expect that 
the landlord will sustain any inconvenience: In re Hughes (a) i 
Inre Halburd{b). 



Mr. Flanagan^ for Androw Martyn. 

Under the 37th section of the old Incumbered Estates Act (c), the 
Commissioners had no jurisdiction in the case of an unincumbered 
estate ; and the section in the present Act is almost literally copied 
from the old Act ; it may, therefore, be doubted whether the Legis- 
lature intended to extend the power to unincumbered estates. But 
if it be now discretionary with the Court, it ought to exercise that 
discretion with more caution than before. This is not an applica- 
tion for bona fide sale. The 72nd section of the last Act is very 
peculiar ; * and the words in parenthesis shows that the Court should 
deal with the greatest consideration for the rights of the landlord. 
In bad times, bad land suffers first. 

(a) 4Ir. Jnr. 152. (6) Mac Landed Estates Prac 13a 

(c) 12 &:i8 Vic., c 77, 8. 37. 



* " Where it is intended to sell, under tins Act, a part onlj of anj lease in 
perpetuity, or other lease, it shall be lawful for the Court, where it shall thinkfit, 
and (having regard to the rights and interests of the owner of the reversion) it 
shall appear to the Court just so to do, to apportion the rent reserved by soeh 
lease between the hind to be sold and the remainder of the land," &c 



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CHANCERY REPORTS, 333 

Mr. E. Beyiagh, for F. Comyn, relied on the fact that the pro- 
ceedings for sale in this case were not hanajiie^ and that the order, 
if made absolute, would frustrate the intention of the will of Lau- 
rence Comyn. 

Mr. M. MorriSf in reply. 

The owner is of course entitled to sell ; and as between himself 
and his brother there can be no question, as the Court would appor- 
tion between them as a matter of course. The words in parenthesis, 
cited by Mr. Flanagan^ were introduced to show that the appor- 
tionment was to bind the landlord as well as the co-lessees. 



1861. 
X. £, Court. 

y , ' 

In re 
comtn's 

ESTATE. 

ArgummU, 



LONOFIXLD, J. 

In this case the petitioner has obtained a conditional order for 
an apportionment (to bii)d the landlord) of the rent payable by 
him, out of the portion of a lease, of which he has obtained an 
order for sale in this Court. Cause against making the order 
absolute has been shown by the landlord Andrew Martyn, and 
by Mr. Francis Comyn, the owner of the residue of the lease- 
hold interest. The case has been very ably argued on all sides; 
and I think all the facts and arguments have been fully and 
clearly stated. The lands now held by the petitioner, and by the 
respondent Francis Comyn, were demised in 1777) by Oliver Mar- 
tyn, to a person of the name of Lynch, at a rent of £380, late 
currency. Laurence Comyn, at the close of the last century, pur- 
chased the tenant's interest for a sum of £4250. He bequeathed 
separate portions to his sons. The petitioner is now the absolute 
owner of one portion, and has obtained an order for sale ; and now 
seeks for an order, under the 72nd section of the Landed Estates 
Court Act, to have the rent apportioned. The head-rent is £380, 
late currency ; the Ordnance valuation about £800 ; the gross 
rents about £1200, and the value of the petitioner's interest is 
£246 a-year. 

The proceeding is not one of very frequent occurrence. By the 
72nd section of the Act by which this Court is founded, which is 
in its terms precisely the same as the 37th section of the Act 



JudgmmU, 



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334 



CHANCERY REPORTS. 



1861. 
i. E. Court. 



In re 

comtn's 

ESTATE. 
Judgment, 



which created the Incumbered Estates Court, a power is given to 
the Court to alter the contract between landlord and tenant. The 
power to alter a fair contract had never previously been given to 
any Court ; but now, by the section of the Act which I am called 
upon^ to administer, the Court has the power of making an alter- 
ation in the position of the parties, which will diminish tho security 
which, under the original contract, the landlord possessed for the 
recovery of his rent. The difference proposed to be made is this : — 
at present the estates of the two brothers are jointly liable for the 
entire of the rent : the effect of the order sought for by the peti- 
tioner would be to make the estate of each brother separately 
liable for his own proportion only. The landlord, and the owner of 
the other moiety of the leasehold interest, both appear to oppose 
this change. I shall consider their arguments separately. One 
argument, indeed, which would have been invincible under the 
ancient law, is deprived of all its force by the Act of Parliament.. 
The landlord can no longer assert that it is more m accordance 
with his wishes to receive the rent in one sum from one man; 
and, therefore, the lease must not be thus divided. No arguments 
can prevail which will apply with equal force to every case, and 
which are therefore rather against the policy of the, Act than 
against any particular mode of administering it. The consent of • 
the landlord is not necessary ; but the Court requires that it 
shall be clearly shown that his interest is not in any appreciable 
degree made less secure, or less enjoyable, or less marketable, 
than before. On the point of security, it is urged, on the part of the 
landlord, that the head-rent is £351 ; the Ordnance valuation is about 
£800; the rent payable by the undertenants, who are poor and 
numerous, is less than £1200 a-year; and that some of the land 
is ten, and some of it thirteen, miles from the town of Galway. 
I think that the security is ample, and that there is no reasonable 
ground for apprehending that either portion of the land will ever 
prove an insufficient security for the rent to which the landlord 
is entitled. As to the condition of the tenantry, and the sub- 
division of the land, there is not much difference between the 
two portions into which the estate is divided. I should not be 



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CHANCERY REPORTS. 



335 




disposed to grant an apportionment, if one portion of the land 1861. 
was so circumstanced that the landlord would naturally be dis- 
poj^ed to resort to it alone for payment of the entire head-rent. 
Next, with respect to the enjoyment of the reversioner's interest, 
it is undoubtedly true that one large rent is a more desirable Judgmant. 
property than several small rents equally well secured, and of the 
same aggregate amount. Still the Act does contemplate the divi- 
sion by the Court of one rent into two smaller rents; and it is 
for the Court to consider whether the splitting of the entire rent 
into smaller parts is any substantial inconvenience to the landlord 
in this particular case. On this point I am referred to tlalhurdPt 
case (a); and, on reading the order, I perceive that in that case 
I divided a rent of £120 a-year into two equal rents of £60 each, 
the security being about the same a» in the present case ; and in 
the present case the smaller of the two portions into which tiie 
rent will be divided will probably exceed £70. 

With respect to the marketable value, it is urged that the divi- 
ded rents would not fetch so high a sum as the single large rent. 
On this point I can say that, after eleven years' experience, and 
selling many milliops' worth of property, I believe that, if the 
landlord were bringing his estate into this Court for sale, one of 
his first steps would probably be to apply for an order to appor- 
tion the rent among the tenants, for the purpose of selling it in 
smaller lots; and the motion would, no doubt, be supported by 
aCrong affidavits to show that such an apportionment would con- 
siderably enhance the value of the estate. 

It is next urged that this is an incumbered estate, and that this, 
power, which was first given to the Court for the Sale of Incumbered 
Estates, was, by copying the section of the old Act, given inadvert- 
ently^ even where the estate was not incumbered. I cannot accept 
this doctrine. I must rather judge of the intentions of the Legisla- 
ture from the language of the Act, and suppose that, having found 
great benefit given to the country by the free transfer of land under 
the Incumbered Estates Court, the Legislature supposed that still 
greater benefits would be derived, if all the same powers were 

(a; M'Nev. Prac. 138. 



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336 CHANCERY REPORTS. 

1 86 1 . extended to the sales of uoincumbered estate?. It can make no differ- 
X. E, Court. 
^-"-^^ ence to the landlord that the tenant does not mortgage his estate to 

comyn's ^^^ third party before he makes this application. If his interests 
ESTATE, jip^ uQ^ injuriously affected, he has no reasonable ground of com- 
Jmdgment, plaint. If the order could inflict any injury, it ought not to 
be made, whether the land be incumbered or not. It is next urged, 
by both the respondents, that the. power of apportionment was 
given to the Court only for the purpose of a sale, and that no sale 
is seriously intended in this case. There certainly are some sus- 
picious circumstances in the transaction, but I shall meet this 
objection by the form of my order. 

The objection of the second respondent Francis Comyn is 
• founded upon the will of Laurence Comyn, under which the peti- 

tioner Peter Comyn, and the respondent Francis Comyn, derive 
their respective titles. By this will, Laurence Comyn, afler giving 
separate portions of this leasehold interest to his two sons, be- 
queathed a sum of £11,000, late currency, in the £3^ per cent 
«tock, for the purpose of paying the head-rent, or, if practicable, 
of buying the lessor's interest; the residue, if any, to be divided 
equally between his two sons. A change, not contemplated by the 
testator, has occurred. The head-rent was £380, late currency. The 
dividend on £11,000, of £3^ per cent, stock, was £385, leaving a 
surplus of £5. But the £3^ per cent, stock has been converted 
into a £3 per cent, stock, and there is now a deficiency instead of a 
surplus, unless there should be a poor-rate of more than 5s. 3d. 
in the £1. Mr. Francis Comyn asserts that the real object of the 
petitioner is to separate hi» interest in the land, and in the money^ 
from that of his brother, in order that he might apply to the Court 
of Chancery to receive that portion of the money which is now 
impounded to pay his proportion of the rent, and this would injure 
him, as one of the trusts of the money is to buy the landlord*s in- 
terest, and that it is possible that Mr. Martyn might be willing to 
sell the entire rent, and yet be unwilling to sell Mr. Francis 
Comyn's proportion of it only. I cannot yield to an argument 
founded on such uncertain speculation. It is certainly possible that 
the landlord might be willing to sell the whole, and yet unwilling 



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CHANCERY REPORTS. 



337 



1861. 
L, E. Court, 




to sell a part of bis estate. On the other hand, it is eqaally possible 
that he might be willing to sell a part, and yet unwilling to sell the 
whole ; and there is a third eontingencj, which appears to be the 
case at present, viz., that the landlord has no intention to sell either 
the whole or any part of his estate^ But I have nothing to do with Judgment 
the disposal of the money. If the petitioner wants to get any part 
of it he must apply to the Court of Chancery. If the application 
fails, then the argument of the respondent also fails, since the result 
which he dreads does not take place. On the other hand, if the 
petitioner succeeds in getting the money from Chancery, that is a 
proof that it is just and reasonable that he should do so, and, there- 
fore, that the respondent has no ground of complaint. I feel, there- 
fore, constrained to make the conditional or^er for apportionment 
absolute. No costs as between the tenants, as the apportionment 
is for their mutual benefit. The landlord is entitled to his casts, as 
his legal rights are interfered with for the petitioner's benefit, and 
to a duplicate of the final order for apportionment under the seal of 
the Court. Let the final order for apportionment not be sealed until 
the conveyance to the purchaser is ready for execution. If the 
petitioner applies for liberty to bid, or if the petition is dismissed 
for want of prosecution, let the order for apportionment be dis- 
charged, with costs, to be paid by the petitioner to both the 
respondents* If the two tenants do not agree upon a valuator, let 
them bring the names of their valuators before me, and I shall 
appoint one or two. The valuation must be made according to the 
value at the present time ; but if any change in the relative values 
of the estates of the two brothers has taken place since the decease 
of Laurence Comyn, let the circumstance be specially reported. 



VOL. 11. 



43 



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338 CHANCERY llEPORTS. 



1861. 
Chancery, 



M'TEAR V. M'DOWELL. 

(In Chancery), 
Feb. 19. 20. 
A testator This case came before the Court upon a special case, stating that 

ffftyo aH his 

property, real Alexander M'Laine, bj his will, dated the 17th of August 1849» 

to tros^^ ' bequeathed to the petitioner and to Nicholas Fitzsimons and Richard 

that t^ey Langtry all his property, real and personal, upon the trusts and for 

freehold estat^ ^^® purposes thereinafter mentioned ; and, after bequeathing^ to his 

and make up ^|fg ^^ annuity of £150 a-year,^ and making certain provisions for 

his estate, so i\^^ management of his property, he directed that his trustees should 

might be able sell his freehold estate, and make up an account of his estate, so that 
to make a diyi« 

sion amone th0y might be able to make a division or allocation thereof amongst 
his nine child- 
ren, to whom his nine children, viz., Jane, John, Alexander, Martha, Susanna, 
he left the _ , ^ -r i •.. , , , », , • •■ 

same in equal Robert, George Langley, Lachlan and Helen, to, between and 

other direc- amongst whom he left and bequeathed the same, in equal shares ; 

dared tluit he *"^ ^^^^ certain other directions the testator proceeded as follows : — 

of^his Vau^ " ^^^ ** ^ *^® ^^^'^ ^^ "^y ^**^ hereby bequeathed to my dapgh- 

T^ ^ • *^^"' ^^^ ^ hereby leave the same to them respectively, for their respee- 

spective lives, tive natural lives, free from the control, debts or en^affements of 
free from the ' j o 6 

control of their any husbands they may respectively marry, and with power to them 
bosbands, with 

power to ap- to bequeath or appoint the same, by deed or will, among their 
point the same .„^ . /> . , « . , ,. 

among their Children, in case of marriage, as they may see fit, notwithstanding 
children, not- « r«i 4. . . . - , . . 

withstanding coverture/ Then, after certain provisions for the maintenance of 

a subsequent ^"® children during their minority,, the testator proceeded : — " And 

rected that the ^ f^^'^^^^r ord©"* *nd direct, that the shares of such of my children, of 

sons^w^o^** my said estates and effects, as being sons, shall have attained the 

should have 

attained twenty-one, at the time of his death, should forthwith vest in them ; 
and that the shares of the other sons should vest as they should afterwards re- 
spectively attain the age of twenty-one years ; and the shares of daughters, on 
marriage ; and that the shares of sons who should die under twenty*one, and of 
daughters who should die unmarried, should go amongst the survivors as therein 
mentioned. J., one of the testator's daughters, married, and died without having 
exercised her power of appoint noent, leaving one child. — Held, that J. took an 
absolute interest in her share of the fund. 



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CHANCERY REPORTS. 



339 



1861. 
Chemeery^ 



age of twenty-one years, at the time of my decease, shall forthwith 

▼est in them ; and that the shares of the others of them, being also 

sons, shall also vest, as they shall afterwards respectively attain 

said age ; or, in case of daughters, on day of marriage, but not m^owell. 

sooner or otherwise ; and that, in the meantime, the share or shares, Statement 

as well original as accruing, of such of the said children as being 

sons shall die under the age of twenty-one years, or, as being 

daughters, shall die unmarried, shall go to, between and amongst 

the surrivor or survivors of them, in equal shared and proportions, 

as tenants in common." The testator named the trustees his exe* 

cutors, and died in 1856. Probate was granted to the trustees. 

Susanna M'Laine died under age and unmarried. Jane M^Laine, 
in 1858, married Edward McDowell, and by her settlement pro-, 
fessed to assign to trustees her accruing share of Susanna's one- 
ninth. Jane M'Laine died in 1859, leaving her husband, the said 
Edward M*Dowel1, and one child, a daughter, the respondent Jane 
McDowell, surviving, but having bequeathed to her husband all 
property which she had power to bequeath or devise. This will was 
duly proved by Edward McDowell. 

Mrs. McDowell's share having been claimed by her husband, by 
her daughter, and by the next-of-kin of the testator, the petition in 
this case was presented, to ascertain the person entitled. 



Mr. Arthur Sharman Crawford^ for Uie petitioner, submitted to ^^ 
act as the Court should direct. 

Mr. David Pigot, for Mr. M*Dowell. 

Mrs. M'Dowell was absolutely entitled, in default of appoint- 
ment to the children, and her husband is, there^Dre, entitled: Re 
(yReilly (a) ; Lassence v. T%emey (*) ; Findon v. Findon (c) ; 
Blackmore v. Ince (d) ; Magee v. Townsend (e) ; Hulme v. 
Hulme (f) ; Campbell v. Brovmrigg (g). There is nothing to give 

(a) I It. Chan. Rep. 497. 

(5) I M*N. & G. 551 ; S. C, 2 H. A T. 115. 

(c) 1 De G. & J, 380. {d) lI>tQ.& J, 458. 

(«) 3 Beav. 443. (f) 9 Sim. 644. 

{g) 1 PhU. 301. 



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340 CHANCERY REPORTS. 

1861. the children an implied estate in default of appointment. Harding 

y -, ^^ y. Olynn (a), Brown v. Higgs {h\ Kennedy y. Kingston (c), 

Witts y. Boddington (J), are all distinguishable from this case. 

MCDOWELL. Where there is a prior power to appoint the estate, without anj 

Armment, expression of wish or desire by the testator, there can be no estate 

implied from the existence of the power, and the Court cannot 

interfere. 

Mr. Arthur Jaekson^ for Jane McDowell, daughter of Mrs. 
McDowell : Broum y. Higge (e) ; Surrough y. Phileox (f) ; Jarman 
on Wills^ pr46l ; Mcuon y. Lymberry{g)\ Witts y. Boddington; 
Kennedy y. Kingston (h) ; Birch y. Wade{i); Forbes v. BaU{h). 

Mr. Andrews^ for the next-of-kin : Oompertz y. Gowpertz (/); 
Crossling y. Crossling (m) ; Marlborough y. Godolphin (it); Jackson 
Y. Forbes (o)i Eyre y. Marsden(p)) Leeming y. Sherratt (g). 

The LoBD Cbancellob. 
Judgment, I am yery clearly of opinion that this fund does not go to the 

next-of-kin of the testator. The bequest appears to me to come 
within the principle otLassence y. Tiemey (r), and other analc^us 
cases mentioned in the argument; there being eyidence, on the' 
whole language and construction of the will, of the testator's inten- 
tion to giye the legacy absolutely as between his estate and the 
legatee. In the first instance the property was giyen amongst all 
the sons and daughters, in equal shares and proportions, in terms 

(a) Atk. 469. 
(6) 4 Yes. 706 ; S. C, on i^peal, 5 Yes. 495. 
(c)'2J. &W.431. 
((/) 3 Bro. p. C. 95; S. C.» 6 Yes. 50S, from Reg. Lib. 
(e) 4 Yes. 708. (f) 5 M. & C. 72. 

(g) 2 Bug. Pow. 165. (A) 2 J. & W. 48t. 

(0 3 Yes. ^ B. 196. (A) 3 Mer. 434. 

(0 2 Phil. 107. (m) 2 Cox, 396. 

(h) 2 Yes. 61. (o) Tamlyn, 88. 

(p) 2 Kee. 573. (9) 2 Har. 14. 

(r) I Mac. & G. 551. 



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CHANCERY REPORTS. 341 

which would confer upon them the absolute interest; so that if it 1861. 

Chancery. 
rested there they would, of course, have taken their respective Shares ^^ — v ' 

M*TEAB 

out and out ; but the will then proceeds to declare, that the shares ^^ 

given to the daughters were left for their respective natural lives ; m'dowell. 

and if the will stopped there, some difficulty might be created ; but Judgment. 

the whole will must be taken together : and when we go further, it 

would appear that the testator's real meaning was not to cut 

down the absolute interest to an estate for life, but to prescribe the 

mode of enjoyment in the event of the daughter murrying; for 

he goes on, "free from the debts, control or engagements of any 

husbands they may respectively marry^ and with power to them to 

bequeath or appoint the same, by deed or will, among aheir children, 

in case of marriage, as they may see fit, notwithstanding coverture." 

There is no general intention manifested there of cutting down the 

interest to an estate for life ; there is no general power given ; what 

IB conferred on ihem is a limited power of a very curious kind, which 

seems intended to be exercised, not during their entire lives, but 

only during coverture. That seems to be the true construction, 

from what went before it ; he provides merely for what might occur 

during coverture, and means to give the daughters power, in case of 

their death while married, to divide their respective shares among 

their children : so that it would appear that his intention was merely 

that they should be free to exercise their power of disposition 

amongst their children, free from marital control, and that for this 

reason the power is confined as I have stated. 

Thb construction is supported by the next clause, in Which he 
directs that the shares of " such of my children of my said estate 
and effects as, being sons, shall have attained the age of twenty-one 
years, at the time of my decease, shall forthwith vest in them." 
What is the meaning of that ? It means that they shall become 
absolutely entitled ; for there is not any other meaning which could 
there be attributed to the word '' vest." Then he goes on, ^' and that 
the shares of the others of them, being also sons, shall also vest as 
they shall afterwards respectively attain said age, or, in case of 
daughters, on day of marriage, but not sooner or otherwise." Now 
what is to vest in the daughters ? The share of the property which 



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342 CHANCERY REPORTS. 

1861. he had given to them, in the mode to which I before adverted, free 

^^ y ■ ^ from the control of their husbands, and in their power to dispose of 

m'tear 

for the benefit of theif children. Then he goes on to saj, ** That, 

K^owELL. in ^e meantime, the share or shares, as well origiQal as aoeraing, 
Judgment, ^^ ^^^^ ^^ ^^® children as, being sons, shall die under the age of 
twenty-one years, or, as being daughters, shall die unmarried, shall 
go to, between and amongst the survivor or survivors of them, in 
equal shares and proportions, as tenants in common." Thus the 
testator shows that he well knew how to frame a limitation over ; 
and he has done so, but only in one event, and he has declared that 
if that do not happen the shares are to vest, or, as his prior use of 
that word shows his meaning to be, to become the absolute property 
of the legatees. 

It never could have been the meaning or intention of the testator 
that, if his daughters were to die without having made an appoint- 
raent in favour of their children, their shares were to go over ; and 
no Court would give such a construction to a will, if not absolutely 
coerced by very strong words. ^ Lassence v. Tiemey (a) is a very 
strong case. The words there are much stronger than they are 
here. The testator there, af^er several legacies, proceeded:—***! 
give and bequeath to my only daughter, Catherine Reade, the 
residue of my property, wheresoever and whatsoever, to receive 

the interest thereof during her lifetime without being 

subject to any control or restraint from her present or any future 
husband." He then went on to direct that she should not have 
power to dispose of any part of the property during her life, 
and that, af^r her decease, it should be divided between her 
children, in the way therein mentioned. In that case, it is true 
that the decision was that Catherine Reade did not take the abso- 
lute estate in the property; but the Lord Chancellor says, **If 
a testator leave a legacy absolutely as regards his estate, bat 
restricts the mode of the legatee's enjoyment of it, to secure certain 
objects for the benefit of the legatee, upon failure of such objects 
the absolute gift prevails." Now applying that rule here, it is 
manifest that the restrictions imposed are merely for the benefit 

(a) 1 M. &. Q. 551. 



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CHANCERY REPORTS. 343 

of tUe legatee and of her children, if any. The Lord Chancellor 1861. 
then went on: — "But, if there be no absolute gift, as between ^- y -^ 
the legatee and the estate, but particular modes of enjoyment ^ 

are prescribed, and those nkodes of enjoyment fail, .the legacy m'dowblu 
forms part of the testator's estate, as not having, in such event, Judgment. 
been given away from it. In the latter case, the gift is only for 
a particular purpose ; in the former, the purpose is the benefit of 
the legatee, as to the whole amount of the legacy." Can we say 
here that the gift was only for a particular purpose, when there 
was, first, a bequest of the shares, in terms sufficient to give an 
absolute interest, then a direction as to the mode of enjoyment 
during their lives, with a power afterwards, and, finally, an express 
direction that the share should vest in an event which has hap- 
pened? Lord Cottenham proceeded: — "In every case, therefore, 
the question must be one of construction ; and, except for the 
purposes of such construction, ybtj little assistance can be derived 
from former decisions. It is, however, obvious that the intention 
that the gift should be absolute as between the legatee and the 
estate is, as in all cases of construction, to be collected firom the 
whole of the will, and not from there being words which, standing 
alone, would constitute an absolute gift." A similar doctrine is laid 
down in Gompertz v. Gompertz (a) ; thovgh in that case the Court 
decided that the next-of-kin were entitled; but Lord Cottenham 
gays : — '^ If he had afterwards done no more than direct how the 
shares so given were to be laid out and enjoyed, the case would 
have fallen within the principle of those cited ; but the subsequent 
directions relate not to that, but to the nature and substance of the 
gift itself; for whenever, in the course of these directions, the testa- 
tor refers to the shares of his daughters, it is always accompanied 
with an explanation of the sense in which he means to use the 
word ; that is a life interest only, with remainder to their children." 
That cannot be predicated of the shares here ; in no part of this will 
are the shares spoken of in this limited way. 

There is another very late case. Be CorbeWs Trusts (i), which is 
perhaps nearer the present, in its terma, than any other which can 

(a) 2 Pha. 107. (6) 1 Johns. 591. 



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344 CHANCERY REPORTS. 

1861. be found. In it " The testator bequeathed £3000 to trustees ; as to 
Chmcery. £iqqq^ Qpo^ trusts in favour of his daughter Elizabeth, identical 
m'teab ^j^ ^^^ ^jj^^ hereinafter stated as to Sarah DoUett; as to £1000, 
M^owELX. on similar trusts for his daughter Mary ; '* and then proceeded as fol- 
Judament ^^^^' — "And as to £1000 principal, remainder of the said £3000, 
and the interest and dividends arising from the said £1000, in trust 
for mj niece Sarah Dollett, and to pay and apply the interest and 
dividends thereof, from time to time, to and for her benefit, until she 
shall attain her age of twenty-one years or marriage, which shall 
first happen ; and, upon her attaining that age or marriage, I direct 
one moiety of the said principal sum of £1000, or the funds and 
securities whereon the same shall be then invested, to be paid or 
assigned to my said niece, absolutely ; ** and, as to the other moiety, 
in trust to pay the interest to the representatives of the niece for 
life; and, from and after her decease, he directed the trudtees to 
stand possessed of this moiety, in trust for all and every the child 
and children of Sarah Dollett^ with various provisions and limita- 
tions over, as to the children. There, there was, in the beginning, the 
declaration of trust for the niece, followed by far more express and 
precise limitations than any here contained; and Vice-chancellor 
Sir Page Wood decided that the will, so far as it went in r^ard 
to the children, if it had stopped there, would have conferred an 
absolute interest on the heir, in default of children, saying :-^'< It 
seems to me that, if the will stopped there, the trust for Sarah 
Dollett would be sufficient to bring the case within that class of 
authorities where gifts of this kind, modified by subsequent limita- 
tions, have been treated as absolute gifts, subject only to suclk 
modifications ; so that, on those subsequent limitations failing, the 
original gift remains in force. I think that would be so on the 
terms of the gift itself.** There was, however, a subsequent limita- 
tion, which he held to be effectual in the event which bad occurred ; 
but, if the will had stopped with the limitation to the children, it 
would, in his judgment, have conferred an absolute estate in Sarah , 
Dollett. 

There is another case which, perhaps, is still stronger — Sell ir. 
Jackson (a), where the testator made the following bequest :---.** I 

(a) 1 Sim., N. S., 547. 



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CHANCERY REPORTS. 345 

give to my grand-daughter, Elizabeth Biddies Noon, the sum of 1861. 

Chancery. 
£4000, to be paid on her attaining the age of twenty-one years ; 

and I direct my executors to place the same out at interest, and 

apply a competent part of such interest for her maintenance, educa- m*dowell. 

tion and advancement, until she shall attain that age." The testator Judgment, 

afterwards made a codicil, by which he directed that Elizabeth 

Biddies Noon should have only the interest of £2000 until she 

attained twenty-three, and proceeded, " The interest of the other 

£2000 I direct my executors to put out to interest, so that it may 

become principal ; and, at the time of the said Elizabeth Biddies 

Noon arriving at the age of twenty-three years, I hereby direct my 

executors to have the whole settled upon her for her life, and, afler 

death, to her child or children, in equal proportions, so that no ' 

husband of hers may spend it.'* In that case. Vice- Chancellor Lord 

Cranworth held that the limitation to the children was merely 

carved out of the absolute interest previously conferred on Elizabeth 

Biddies Noon ; so that, if she never had children, her interest was 

not affected. liooking at the principle of the decisions to which I 

have referred, and also looking to the very strong lang-uage of this 

will, I think that the next-of-kin of the testator have failed to 

establish any right to this fund as undisposed of by his will. 

The question then arises, whether there is any trust for the 

children of this lady, or any implied limitation to them in default 

of appointment ? I do not think that any such trust or limitation 

can be discovered in the will. There is a mere naked power of 

appointment given to the daughter ; but no limitation over in 

default of appointment — nothing to show any intention to give the 

property to the children; and, therefore, however I may guess that 

it was the intention of the testator that the children should take, I 

am bound to hold that he has failed to exjMress any such intention ; 

that he has only conferred upon his daughter a power which she was 

at liberty to exercise, or to abstain from exercising, and that Mr. 

McDowell is entitled to this fund. There is no question raised 

respecting the right to the accnied fund. 

f 

Chancer^/ Hearing Booky 27,/. 34. 

VOL. 11. 44 



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346 CHANCERY REPORTS. 



1861. 
Ch. Appeal. 



Court o( Hfftnl in Citinttxp. 

In re the Estate of LAWDER, Assignee of Irwin, Owner; 
HILL and DOWUNG, Petitioners. * 
Feb. 4, 5. 

A testator, by Bt deed of settlement, executed on the marriage of John Richard ' 

his will, made 

in 1836. exe- Irwin, in 1826,. his father conveyed the lands of Harristown to trus- 

cated a power 

of appointing tees, to the use of himself for life, Mrith remainder to John Richard 

yo^^r sons Ii'win for life, with remainder to John Richard Irwin's first and 

£2(^ charg- Other sons, as tenants in tail ; and, by the same deed, the lands 

marr^**TOt- ^®^® charged with a sum of £2000, as a provision for the younger 

Sf^'^ds^'* f ^^^'®^ ^^ ^^® marriage, as John Richard Irwin should appoint. 

H., of which John Richard Irwin, by his will, dated the 26th of July 1836, 

he was tenant » ^ j ^ t 

for life. After appointed the £2000 among his three younger sons thus; £600 

his death, his 

eldestson,who to Richard, £1000 to John, and £500 to Lewis. In August 1886, 

took the lands 

ofH. as tenant John Richard Irwin died, and his eldest son, Thomas Rodney 

yeyedthem,in Irwin, entered into possession of the lands. In 1887, Thomas 

tees, 'to secure ^o^^J Irwin, for the purpose {among others) of paying off the 

by""iwiy of ^^^ ^^ £1000, SO appointed to John Irwin, borrowed a sum of 

mortgage; the £iqqq from William Woodroffe ; and by deed of mortgage, dated 
Toonger sons *' o o » 

behjg parties ^he 7th of February 1837, he conveyed the lands of Harristown 

gage, and con- to trustees, to secure payment of the same; and at the same 
senting there- 
by to postpone time he gave them, as collateral security, his bond and warrant 
their claims to ^ , . , . , , „ , , • , 

it; and, at the for the same amount. Upon which they accordingly entered judg- 
same time, the 
elder son exe- 
cuted his bond collateral, for securing the same som, and warrant, npon which judj^r 
ment was entered. In 1841, the eldest son purchased the lands of F. ; and, m 
1845, a judgment was obtained against him by 8* The lands of H. and F. were 
subsequently sold in the Landed Estates Court ; and the proceeds of H. haying 
proyed insufficient to pay the amount due on foot of the mortgage, it was ordered, 
by a Judge of that Court, that the mortgage debt should be paid rateably out of the 
proceeds of H. and F., and the surplus of &. applied in discham of the appointees' 
claims, and the surplus of F. in discharge of the judgment of 1845. 

This Court, upon appeal, reversed that decision, being of opinion that no equity 
had arisen upon the purdiase of F., in favour of the appointees under the will, so as 
to entitle them to insist upon the mortgagee's daim being paid rateably out of the pro- 
ceeds of H« and F. ; and tnat, consequently, the doctrine of marshalling did not apply. 

Bamee r. Raater (I Y. & CoL, Ch. Cas., 401) commented on. 



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CHANCERY BEPORTS. 



347 



ment. Richard and Lewis Irwin were parties to the mortgage 
deed, and thereby agreed that the sum of £1600 thereby secured 
should be an incumbrance upon the lands, prior to their respective 
shares of the charge of £2000. 

In 1841, Thomas Rodney Irwin purchased the lands of Flower 
Hill; and, in 1845, Richard Irwin obtained a judgment against 
him, in the penal sum of £700, which judgment now vested in 
Arthur Stanley, the appellant 

In 1853, Hill and Dowling, the trustees of the mortgage of 1837, 
filed a petition in the Incumbered Estates Court for a sale of all 
the lands. Th^ lands were subsequently sold in the Landed Estates 
Court ; and the proceeds of the sale of Harristown proving insuf- 
ficient to discharge the mortgage debt, Richard Irwin and the 
representatives of Lewis Irwin (appointees under the will of John 
Richard Irwin) claimed to have the securities marshalled. Judge 
Dobbs, on the 17th of August 1860, ordered that the amount due 
on foot of the mortgage of 1887 should be paid rateably out of the 
proceeds of the sales of Harristown and Flower Hill, and that the 
residue of the proceeds of Flower Hill should be applied in payment 
of Stanley's judgment debt ; and the residue of the proceeds of 
Harristown in payment of the claim of Richard Irwin and the 
representatives of Lewis Irwin. 

Against that order the present appeal was brought by Arthur 
Stanley, upon the following grounds: — First; that the claimants 
were, by the contract made by them upon the execution of the 
mortgage of 1837, disentitled from having the lands of Harristown 
exonerated from the payment of any portion of the mortgage debt. 

Secondly; that the claimants, not being creditors of Thomas 
Rodney Irwin, the owner of Flower Hill, were not entitled to have 
the proceeds of the sale marshalled in their favour. 

Thirdly; that the appellant, having a statutable charge upon 
the lands of Flower Hill, by virtue of the judgment of 1845, was 
entitled to be paid the same in due priority to all claims, except 
that for the balance due on foot of the judgment collateral with 
the mortgage of 1837. 




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348 



CHANCERY REPORTS. 



1861. 
Ch. Appeal. 

In re 
lawder's 

ESTATE. 

Argument. 



The Solicitor-General^ Mr, Brewster and Mr. Harkan, for 
Arthur Stanley, the appellant 

This case must be decided upon the construction of this contract 
The doctrine of marshalling does not apply. The cases are col- 
lected in Aldrieh y. Cooper (a). In Ex parte KendaU (6), Lord 
Eldon said (p. 520) : — ** We have gone . this length ; if A has a 
right to go upon two funds, and B upon one, having both the ' 
same debtor, A shall take payment from that fund to which he 
can resort exclusively } that, by those means of distribuUon, both 
shall be paid. That course takes place where both are creditors 
of the same person, and have delnands against funds the property 
of the same person. Here, it is true, there may l^ creditors 
' who have demands against the four, and others who have demands 
against the one ; but it was never said that, if I have a demand 
against A and B, a creditor of B shall compel me to go against A, 
witliout more ; as, if B himself could insist that A ought to pay in 
the first instance, as in the ordinary case of drawer and acceptor^ 
or principal and surety ; to the intent that all the objections 
arising out of these complicated relations may be satisfied: but * 
if I have a demand against both, the creditors of B have no 
right to compel me to seek payment from A, if not founded on 
some equity giving B the right, for hia own sake, to compel me to 
such payment from A." — [The Lobd Justice op Appeal. That 
is the principle upon which we acted in ReKeily(c)*'] — In this 
case, no equity ever arose in favour of the appointees under the 
Will, giving them a right to compel the mortgagees to seek payment 
of their debt, or a rateable portion of it, from the Fbwer Hill estate. 
Judge Dobbs appears t6 have acted upon the authority of Barnes 
V. Racster (<f). But that case was different ; for there, there was 
a common debtor. In Gibson v. Seagrim{e)y the Master of the 
Rolls, in his judgment, gives (p. 619) a good rendering oi Barnes 
v. Racster ; " I agree with what was decided by the; Vice-chancellor 
Knight Bruce, in Barnes v. Racster^ that if tWo estates are mort- 
gaged to A, and one is afterwards mortgaged to B, and the 



(a) 2 W. & T., L. C, 56. 
(c) 6 Ir. Chan. Rep. 394. 



(6) 17 Ves. 514. 

{d) I Y. &CoL, C.C.,401. 



(e) 20 Beav. 614. 



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CHANCERY REPORTS. 



349 



remaiolDg estate is afler wards mortgaged to C, B has no equity 1861. 
to throw the whole of A's mortgage on C's estate^ and so destroy 9^' ^pp^l; 
C's security. As between B and C, A is bound to satisfy himself , .£!J!!„»„ 

■^ IjAWDEK s 

the principal, interest and costa due to him out of the two estates estate. 
rateably, according to the respective values of such two estates ; AZZimi. 
and thus to leave the surplus proceeds of each estate to be applied 
in payment of the respective incumbrances thereon." 

Mr. Serjeant Sullivan and Mr. P, J. Blake, for Richard Irwin, 
and the representatives of Lewis Irwin. 

Barnes v. Racster is a precise authority in support of the decision 
in the Landed Estates Court. Thomas Rodney Irwin covenanted 
in the mortgage deed to pay the charges, thereby becoming a direct 
creditor to Richard and Lewis. The effect, therefore, of that deed 
was to charge the two sums of £600 each upon the lands, subject 
to the mortgage. — [The Lord Chancellor. They were always 
charged upon the lands.] — But he directly covenants with these 
parties to pay them their portions, and the interest on them, 
thereby making himself directly their debtor. The effect of the 
mortgage deed was, even if the £2000 charge had never existed, 
that Thomas Rodney Irwin had, for value received, charged the 
lands with those two sums, and covenanted to pay them, as if 
he had in fact given a mortgage for those two charges. The 
mortgagee had also a collateral judgment ; and the moment Thomas 
Rodney Irwin acquired Flower Hill, Richard and Lewis had a right, 
as between them and Thomas Rodney Irwin (not, perhaps, against 
a purchaser for value, but certainly as against the judgment 
creditors of Thomas Rodney Irwin), to have the mortgage and 
judgment paid rateably out of Harristown and Flower Hill, on 
the principle established by Barnes v. Racster- In that case, 
Racster had, in 1792, mortgaged Foxhall to Barnes. In 1792, 
he mortgaged the same estate to Hartwright; and, in 1800, he 
mortgaged both Foxhall and No. 32 to Barnes; and it was held 
that the actual circumstance of the first mortgagee having acquired 
a new mortgage over both estates gave Hartwright a right to throw 
the first mortgage rateably on both estates; and were it not that 



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350 



CHANCERY REPORTS. 




ArgwnaU, 



there was a fourth subsequent mortgage, he would have had a right 
to have the entire of the first mortgage thrown on No. 82. — [The 
Lord Justice of Appeal. That was the case of the same debtor, 
and different estates mortgaged for the same debt] — The rule would 
be this, that, where a person mortgages an estate first to one party, 
and then to another, subject to the first mortgage, and subsequently 
makes another estate subject to the first mortgage, then the seoond 
mortgagee has a right to have the first mortgage paid pari passu 
out of both estates : In re Cornwall (a). In the present case, the 
mortgagee could have proceeded on his collateral Judgment^ in the 
first instance, if be pleased, and have had Flower Hill sold first — [The 
LoBD Chancellor. The acquisition of Flower Hill was no part 
of the contract ; but, in Barnes v. Racster^ the mortgagor in effect 
contracted with the second mortgagee to give him a security and 
that he would pay him out of it if he could ; and his giving a new 
mortgage to the first mortgagee gave him the means of paying the 
second mortgage out of the first estate.] 

They also cited Bugden v. Bignold(b); Tidd ▼. Lister {e)\ 
Heveningham ▼• Heveningham (d) ; Hyde ▼• Atkinson («)• 



Mr. Brewster^ in reply. 

The respondents here agreed that they would not look to Harris* 
town for payment of their claims, until the mortgage }iad been paid 
out of it. The liability of suretyship is a cotiimon liability to a 
common demand : In re Keify (f). Although the mortgagee might 
have availed himself of any of his sequrities^ that fact does not alter 
his primary fund ; and, he having been paid off out of that, there is 
an end of both mortgage and collateral judgment. Richard Lewis 
Lrwin could not, at any time, have said to the mortgagee, ^*Mr. 
Irwin has now another estate. Flower Hill; proceed against it, and^ 
you will be paid your demand." In Bames.y. Raesterj when Rac- 
ster, having mortgaged to Barnes, then mortgaged to Hartwright, 
and then gave Barnes a mortgage over a separate estate, for the 

(a) 6 Lr. Bq. Rep. 63. (6) 2 Y. & CoL, C. C, 877. 

(c) 10 Hare, 14a (d) 2 Vem. 265. 

(e) 2 Ir. Chan. Bep. 246. 09 6 Ir. Chan. Bep. 394. 



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CHANCERY REPORTS. 



351 



same debt, that was in effect a payment pro tanto of the original 
debt; but where, instead of the party giving a mortgage on a second 
estate, the law attached the original debt to that second estate, that 
ia no stipulation on die part of the owner that any of the debts shall 
be satisfied out of the second estate. 




Argument. 



The Lord Charcellob* 

It la an old and well established doctrine, that, if the owner of JudgtMnt. 
two estates mortgages them both to one person, and sabeeqnentlj 
mortgages one of the same estates to another person, an equity 
arises, on the part of the person who has a mortgage on one estate , 
only, to throw the demand of the first mortgagee upon the estate 
of the two, upon which the second mortgagee has not a mortgage. 
That is the principle recognised in all the cases which have been 
cited, and particularly in Gibson ▼. Se{tgrim(a). In that case. 
Sir Samuel Romilly entered fully into the subject, adopting the 
principle of Aldrich T* Cooper {h\ while, at the same time, he 
expressed his concurrence in the subsequent decision in Bamei y. 
Raester (c)« The facts of Oibson y. Seagrim were shortly these : — 
In 1851, Seagrim mortgaged certain real estates to Johnson. In 
1852, he mortgaged the same estate to Godwin, transferring to 
him, at the same time, the shares in the Winchester Gas. Company, 
by way of additional security. In 1 853, he mortgaged all the lands, 
including those in the former mortgage, to Gibson ; but the gas 
shares were not comprised in this security. The first mortgagee 
subsequently sold the real estate included in his mortgage, and, 
after paying himself, handed oyer the surplus to the second mort- 
gagee, Gk)dwin, who applied it in payment of his UKMrtgage debt ; 
and then, having sold the gas shares, paid himself in full, and 
handed ovet the balance to the assignees of Seagrim, who had 
become a bankrupt. Gibson applied to have this balance applied 
in satisfaction of his debt, in lieu of the surplus of the proceeds 
of the real estate intercepted by Godwin. Thus, at the time when 
Johnson's mortgage was paid off, the parties stood thus; Godwin 

(a) 20 Beav. 614. (6) 3 Ves. 881. 

(c) 1 Y. & Col, C. C, 401. 



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CHANCERY REPORTS. 




Judgment. 



had a mortgage on two estates, namely, the real estate (ind the 
gas shares; and Gibson had a mortgage on the real estate only. 
The Master of the Rolls, in his judgment, having expressed an 
opinion that the^ two estates ought to be marshalled, in accordance 
with the principle laid down in Aldrich v. Cooper, and that class 
of cases, said, ^* But I agree with what was decided by the Vice- 
Chancellor Knight Bruce, in Barnes y. Raoeier, that, if two estates 
are mortgaged to A, and one is afterwards mortgaged to B, and the 
remaining estate is afterwards iportgaged to C, B has no equity to 
throw the whole of A's mortgage on C's estate, and so destroy C's 
security. As between B and C, A is bound to satisfy himself the 
principal, interest and costs due to him out of the two estates rate- 
ably, according to the respectire values of such two estates, and thus 
to leave the surplus proceeds of each estate to be applied in payment 
of the respective incumbrances thereon." 

Barnes v. Raester did not establish any new principle. It 
simply decided that, if there is a third mortgage in the cose, affecting 
the estate, which one only of the two former mortgages affects, then 
the second mortgagee shall not be allowed to disturb the third mort- 
gagee's right, by throwing the entire of the first mortgage on the 
second estate ; and that in such case the first mortgage shall be paid 
rateably out of both estates. But in that case it was assumed that 
the former principle was established. In the case where an owner 
mortgages one estate first to A, and then to B, and subsequently 
gives A a mortgage upon a second estate, to secure the same debt, 
B's equity arises the moment the second mortgage to A is made. 
But, in the present case, we have to consider, not mortgages at all, 
in that sense, but judgments, which are totally different Judg- 
ments, immediately on their acknowledgments, bound all the 
property of the conusor ; and the question is, when did the right con- 
tended for on part of the judgment creditor, to have the securities 
marshalled, arise ? It arose, if at all, the very moment' the judg- 
ment was entered ; therefore it follows, according to the argument 
on behalf of the respondents, that they might then have said to the 
mortgagees, *' You must now proceed on your collateral judgment, 
and arrest your debtor, the mortgagor, or levy your demand by exe- 



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CHANCERY REPORTS. 353 

cation of his chattel property ; " in other words, " You must do the 



1861. 
Ch, Appeal 



In re 



JudgtHent* 



very thing which the mortgagor endeavoured to avoid, by borrow 
ing the money *' — a transaction to which the respondents themselves i^awder's 
were parties. No new right rose upon the purchase of Flower HilL estate 
Therefore the old doctrine of marshalling has no application to the 
present case. This is a mere question upon the contract in the case, 
and that contract plainly was, that the respondents would not seek 
to have their claims paid out of Harristown until the mortgagee's 
claim had been first satisfied out of that estate. I agree that, if it 
were once established that an equity existed between the respond- 
ents and the judgment creditors, t^en the rateable distribution 
sought for could be enforced, in accordance with the authority of 
Barnes v. Raater. The judgment of the Court below appears to 
me to have been, in this respect, founded on a misapprehension, and 
must be reversed. 



The Lord Justice of Appeal. 

The respondents in this appeal were entitled to two charges, 
each for £500, portions of a charge affecting the lands of Harris- 
town. They joined in a mortgage of these lands, giving the mort- 
gagee priority. These lands have been sold for a sum not sufficient 
to pay the amount of the mortgage, so that nothing remained to 
pay the respondents, and the result is an extinction of their claims, 
and a total exoneration of the lands. But the order of Judge 
Dobbs has worked out a remedy — or, at least, a partial remedy — by 
making another estate, that of Flower Hill, which was acquired in 
the year 1841, four years after the execution of the mortgage, con- 
tribute to pay the mortgage debt, thereby releasing a portion of 
the proceeds of the sale of Harristown from the mortgage debt, 
aud preserving and appropriating so much to the payment of the 
two charges of £500, thus restoring and giving back to the respond- 
ents the very property which they had released. It is obvious that 
snch a process and such an operation is not the result of contract. 
Indeed it is the very reverse ; for, by the contract, the lands and 
purchase-money were, in the above events, absolutely released. Is 
there, then, any rule of Equity, which, without contract, and, 
VOL. 11. 45 



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354 



CHANCERY REPORTS. 



1861. 
Ch» AppeaL 

In re 

LAWDEH's 

ESTATE. 

Judgment. 



indeed, in contravention of it, revives and reinstates these charges 
upon the proceeds of the estate ? The reason or foundation of such 
an equity is not supplied by anything in the mortgage deed. The 
priority of the charges is unequivocally released, and the only 
remedy it provides is, that of the personal covenant in the mort- 
gage. Again, there is no pretext for contending, nor has it been 
argued, that the relation of surety and principal arose between the 
owners of the charges and the mortgagees, which could entitle the 
former to the benefit of the collateral securities. On none of these 
grounds has the case been piit. The decision of Judge Dobba^ hold- 
ing that Harristown and Flower Hill should each contribute rateably 
to the discharge of the mortgage of £1600, is founded wholly on 
the authority of Barne$ v. Bacater (a). I am of opinion, however, 
thftt the present case is distinguishable from Barnes v. Booster^ in 
essential particulars, and that the latter case is not an authority for 
the decision we are reviewing. A brief consideration and compari- 
son of the facts of the two cases will make this dear. First, it vnll 
be seen that the mortgage made to Barnes, in the year 1800, com- 
prised the two estates, Foxhall and '* No. 32 ; " that is a leading fiust^ 
to be always k^pt in mind. Bacster bad, firstly, mortgaged Fox- 
hall to Barnes in 1792; secondly, he mortgaged the same estate, 
Foxhall, to Hartwright in 1795 ; and, thirdly, in 1800, he mort- 
gaged both Foxhall and the estate called ** No, 32 ** to Barnes, to 
secure both the former debt and a further sum. The effect of thia 
last deed, in improving the security of Hartwright, as it was held 
to do, was the result of the provision which made Barnes' earlier 
demand of 1792, as well as the new loan, a charge on both the 
estates of Foxhall and *^ No. 32." The decision in his &voiir, 
which threw the debt of 1792 partly on '* No. 32," was the neces- 
sary effect of the actual agreement between Bacster and Barnes, 
carried into execution by 'the deed of 1800. See how clearly this 
is laid down in the Vice-Chancellor's judgment (p. 408) :-i— ^* As to 
the matter to be determined, the observation to be made is, thai, 
considered without any reference to Hartwright or Williams, the 
nature and effect of the security of 1800 were, as I conceiTe, to 

(a) 1 Y. &CoU., C. C.,401. 



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CHANCERY REPORTS. 355 

make • No. 32 ' and Foxhall pari passu^ and rateably according 



1861. 



ESTATE. 



Judgment. 



to their values, liable to Barnes' two charges; " and then he exem- ^^- — 
plifies this, by referring to the consequences, if the two estates had lawder's 
gone in different courses of descent. This compact, making both 
estates liable to contribution, is the sole reaspn and ground of the 
deciaion. We must, therefore, now consider whether, in the case 
before us, there was any agreement or compact that Flower Hill 
(which, I may say, corresponds to ** No. 32 ** in Barnes v. Racster) 
was to be contributory or liable to pay the mortgage ? 

Flower Hill was not acquire4 by the mortgagor until 1841. This 
circumstance, though it may weaken the claims of the respondents, 
cannot make them stronger than they would have been if the mort- 
gagor had possessed Flower Hill, when he executed the mortgage in 
1837. Now let me consider for a moment what would have been 
the operation of the deeds of 1837, if he had, at that time, possessed 
Flower Hill ? The mortgagee would only have had the mortgage, 
the covenant and the collateral judgment ; but what ground would 
there have been for saying that, besides these remedies, he should 
have had his demand charged on Flower Hill as well as Harris* 
town ? Neither in the mortgage deed, nor elsewhere, is there a 
pretence for such a claim ; yet it would be the actual conveyance 
of both, by way of mortgage, that could alone assimihite the two 
cases, and make the decision of Barnes v. Racster^ in any degree, 
applicable to the case before us. The acquisition of Flower Hill, 
four years afWwards, which detaches it from the antecedent deal- 
ings, is not attended by any agreement, or any indication whatever 
of any intention, to make it liable to the mortgage debt ; and thus 
this case is totally destitute of the very matter which would warrant 
the application to it of the decision in Barnes v. Racster. 

Order reversed. 



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CHANCERY REPORTS. 



1861. 
Ch. Appeal, 



In re the Estate of Sir JOHN NUGENT HUMBLE, Devisee of 

THOMAS JOSEPH FITZGERALD, Owner and Petitioner; 

Ex parte JOHN MAGRATH, Appellant. 



Jl%28. 



This was an appeal on behalf of John Magrath, an incumbrancer 
upon the lands sold in this matter, against an order made by 



An affidavit 

filed for the 

purpose of 

registering a 

judgment as Judge Hargreave in the Landed Estates Court, by which he ruled 

under t^pro- ^^&^ ^^^ affidavits filed for the purpose of converting a judgment 

l3*&*U^Ftc.! ^^^ * mortgage, under the provbions of the 13 & 14 Ftc., c. 29, 

c29,wa8enti- wf^rii invalid 

tledinthemar- were mvaiia. 

of^D.^'^in^he ^^^^ Magrath obtained a judgment in Trinity Term 1852, 

TOunty of Wm against Thomas Joseph Fitzgerald (the owner of the lands sold 

i£F; T. J. F., in this matter), for £400, l)e8ides £3. Is. lid., for costs: and on 

of B., in the ^ •> » 

county of W., the 2nd of June 1853, proceeded to register the same as a mort- 

£sq., defend. 

ant" Theaffi. gage against the said lands, under the 13 & 14 Fic, c. 29. 

that J. M., The affidavit filed for that purpose ran as follows : — 

of, &c&c,had 

recovered a "/» the Court of Queen's Bench. 

judgment ^^^ « j^^^^ Magrath, of Doon, in the county of 

defendant in^ Waterford, former. Plaintiff; 

this cause, by Thomas Joseph Fitzgerald, of Ballinaparka, in 

the name and thecountyof Waterford, Esq., Defendant 

of ThoiniM ^nd the Act of the 13 & 14 Vic. , c 29. 

Joseph Fitz- ! 



John Magrath, of Doon, 
in the title hereof, in the 
^county of Waterford, far- 
mer, aged thirty years and 



ISh^' ^ upwards, the plaintiff in this cause, maketh oath and saith that he, 

i^ ^ ^^ ^^*® deponent, by the name and description of John Magrath, of 

"Esq "—Held, Doon, in the county of Waterford, farmer, did, on the 14th day of 

that the above 

was a sufficient October, in the year of our Lord 1852, and in or as of Trinitj 

description of ~ . 

the name and Term, in the said year of our Lord 1852, obtain a judgment in 

known place of Her Majesty's Court of Queen's Bench in Ireland, against the 

defendant. defendant in this cause, by the name and description of Thomas 

5few6&,that Joseph Fitzgerald, of Ballinaparka, in the county of Waterford, 

affidavit, filed Esq., for the sum of £400 sterling, besides £8. Is. lid. for coste; 

nnder the pro- 

visions of the 

21 & 22 Vie., c. 105, may he filed after the death of the conusor. 



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CHANCERY REPORTS. 



357 



as by the records of said Court maj fully appear. This deponent 
farther saith he,'' &c. 

The appellant subsequently, on the 25th of June 1859, filed a sup- 
plemental affidavit, under the provisions of the 21 & 22 Ftc, c. 105.* 

The lands were subsequently sold in the Landed Estates Court ; 
and, upon the settlement of the final scliedule of incumbrances, . 
Judge Hargreave held that the affidavit originally registered was 
invalid, on the ground that it did not sufficiently state the title, 
trade or profession, or last known place of abode, of the person 
whose estate was intended to be afiected thereby; and that the 
supplemental affidavit, having been made afler the death of the 
conusor, could not supply the alleged defect in the first affidavit. 

Against that decision the present appeal was brought, on the 
following grounds : — 

First ; that the first affidavit was a sufficient compliance with 
the 13 & 14 Vic, c. 29. 

Secondly; that even if the first affidavit was defective, such 
defects were supplied by the supplemental affidavit, inasmuch as 
there was no provision contained in the 21 & 22 Fife, c. 105, 
requiring such supplemental affidavit to be made in the lifetime 
of the conusor ; nor any reason for requiring such restriction in 
the construction of that Act of Parliament. 




Statement, 



Mr. T. Harris and Mr. Ryan^ for the appellant. 

This affidavit substantially apd sufficiently states the name, 
title, &C., &C., of the person against whom the judgment was 
obtained. The margin states that the defendant in the case was 
"Thomas Joseph Fitzgerald, of Ballinaparka, in the county 
of Waterford, Esq.," and the affidavit states that the judgment 
was recovered "against the defendant in this cause." A similar 
affidavit was held to be valid, by Judge Lynch, in the Court of 
Bankruptcy : In re Smith and Boss (a). They also cited In re 
Goodyear (6). 

(a) 6 Ir. Jut., N. S., 72. (h) 6 Jr. Jur., N. S., 11. 



Argument. 



* NoTB. — As the Court held the first affidarit to be valid, there is no occasion 
for setting forth the supplemental affidavit. 



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CHANCERY REPORTS. 




Argvfnent, 



As to the supplemental affidavit, there is no reason why it should 
not be made after the death of the conusor. — [The Lord Chah- 
CBLLOK. I certainly see none.J 

Mr. Brewiter and Mr. ShekUtan^ in suport of the order of the 
Landed Estates Court. 

This affidavit does not fferify the usual or last known place of 
abode. When the Act specifies that the '* usual or last known 
place of abode " of the defendant must be mentioned, it does not 
mean the place of abode at the time of entering^ the judgment. 
Test the sufficiency of this affidavit by the question — could the 
person who made it be indicted for perjury, if it were proved he 
had never lived at the place of abode mentioned in the margin ? He 
could not, for he does not pretend to swear to any such fact. This 
Court held, in Re Fitzgerald (a)^ theii the requisites of this statute 
must be strictly complied with. 3PDowell v. Wkeatley (Jbi) is an 
authority against the validity of this affidavit. In Crosbie v. 
Murphy {c) the affidavit was held defective, because the conusor 
was described as "widow." — [The Lord Chancellor. In that 
case it was proved that the widow had a trade.] — The margin is not 
covered by the oath. The statute meant that there should be 
the security of the oath of the party making the affidavit, as to 
his last known place of abode. Suppose Mr. Fitzgerald had lived, . 
from the time of his birth until the entry of the judgment, at 
the pl^ce named, and a week afterwards had left it, that being 
twenty years ago, would not the affidavit, in that case, be true, 
and yet in direct opposition to the Act of Parliament? — [The 
Lord Chancellor. The defendant in this cause is stated in 
the margin to be ^* Thomas Joseph Fitzgerald, of Ballinaparka, 
in the county of Waterford, Esq," If those words be sub- 
stituted for the words ''against the defendant in this cause," in 
the body of the affidavit, it will then run <* against Thomas Joseph 
Fitzgerald, of Ballinaparka, in the county of Waterford, Esq.," 
which would be a complete compliance with the statute.] — The 

(a) Ante, p. 278. (6) 7 Ir. Com. Law Rep. 562. 

(c) 8 Jr. Com. Law Rep. 301. 



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CHANCERY REPORTS. 369 

statement of the title of the cause in the margin is not upon 1661. 

Ch, Appeal, 
oath ; and, moreover, it is merely the the title of the cause at * - ■ y ■ »^ 

In re 
the time the judgment was entered. fitzoer* 

They also cited Ponblanque v. Le^ (a) ; Pickard v. Bretz (h). ^"*'« 

E8TATX. 

Mr. Ryan^ in reply, cited Hewer v. Cox{e). Atyument. 



The LosD Chakcellob. 

We ' are of opinion that the first affidavit in this cause may Judgment. 
be held good, without encountering any decision hitherto made 
upon the construction of the Act of Parliament, and without 
violence to the words of the statute, to common sense, or t6 
reason. The Act requires the affidavit to state certain things; 
among others, the names, the usual or last known place of abode, 
and the title, trade or profession of the plaintiff and of the defendant. 
Now it is said that this affidavit, although complete in all other 
respects, is defective in this particular — that it does not state 
the title and h»t known place of abode of the defendant. It states 
that the judgment in question was recovered ** against the defendant 
in this cause.'' The defendant in the cause is stated in the margin 
to be " Thomas Joseph Fitzgerald, of Ballinaparka, in the county 
of Westmeath, Esq." That, no doubt, is his description as it 
stood at the time of entering up the judgment ; but the party, 
when registering that judgment as a mortgage, says, in effect, 
''I recovered a judgment against the defendant in this cause, 
and he is that very man." Had there been a change in his resi- 
dence, and had the affidavit stated that the judgment had been 
recovered against Thomas Joseph Fitzgerald, of some other place, 
by the name of Thomas Joseph Fitzgerald, of Ballinaparka, in 
the county of Waterford, Esq.," that would mean ** I recovered a 
judgment against a man who now is of such a place ; though at 
the time of entering my judgment, he lived at Ballinaparka, in 
the county of Waterford." Is the construction of the affidavit to 
be altered because the man has not changed his place of abode, 

(a) 7 It. Com. Law. Rep. 550. (b) 5 Exch., N. S., 9. 

Cc) 30 L. J., N. S.. Q. B., 73. 



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CHANCERY REPORTS. 




Judgment. 



bat resides at the same place as he did at the time of entering 
the judgment ? The statement, as it stands in this affidavit, amounts 
to an averment that the man against whose lands the judgment is 
sought to be entered is Thomas Joseph Fitzgerald, of Ballina- 
parka, ih the county of Waterford, Esq., and that he was so at 
the time when the judgment was entered. 

I think the original affidavit in this case perfectly sufficient; 
and, therefore, I need not go into any consideration of the supple* 
mental affidavit. I see nothing in the Act of Parliament io prevent 
the supplemental affidavit being filed after the death of the conusor ; 
but that question is not now before us. I think the original affi- 
davit quite sufficient. The judgment of Judge Lynch, in Be 
Smith and JRosi^ which has not been appealed from, and in which 
I quite concur, is a sound exposition of the law on the subject, and 
it is to the same effect. 



The Lord Justice of Affeax.. 

I am quite of the same opinion ; and, if it were necessary, I am 
quite prepared to say that there is nothing to prevent the supple-^ 
mental affidavit being filed after the death of the conusor. 



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CHANCERY REPORTS. 361 



1861. 
L. E. Court. 



EanHeH (eUdittii €onvt 

In the Matter of the Estate of 

CHRISTOPHER PLUNKETT, Owner; 

JOHN DOONER, Petitioner. 



Jan. 31. 



This case arose from an incorrect description having been appended A, by bis will, 

leaves to F. 

to the name of a devisee in the will of Francis Macnamara, which M. F., and to 

" his sister, M. 

was duly made and published in the year 1820. The testator had, at f., my grand- 

that time, and at the time of his death, which occurred in July 1822, shfureand'share 

a daughter named Maria Faulkner, and two grand-daughters, Maria j»^ Dow^living 

Faulkner and Catherine Faulkner. He was far advanced in life ; }^r^?M'" 

but no proof of mental incapacity given. The will, as far as it is ?!J 5f* estates. 
5 r y o » ' M. F. wlw not 

material to the present case, was couched in the following terms : — 'hen living, 

and had never* 

** I bequeath to my dearly beloved daughter Maria Faulkner all my lived, while 

ber sister, C. 

estate, and all my personal property, in as large a manner as I do or F., was living, 

and bad lived, 

may enjoy the same at my decease, during her natural life; and, after for some time, 

her decease, I leave and bequeath unto my grandson Francis Mac- ande M.— 

namara Faulkner and to his sister Maria Faulkner my grand- extrinsic eri- 

daughter share and share alike, said Maria Faulkner now living nf^^bk^to 

in France ^ith her uncle Martin, all my estates in the town of ^^bf^ity^^ln 

Ennis or elsewhere; and, in case my said grand-daughter shall the will. 

die before she arrives at the age of twenty-one years, or else that there was 

married with the consent of her guardians, then I bequeath her feet balance of 

share to my grandson," &c Under these circumstances, Catherine toraspend^the 

Faulkner, by way of objection to the allocation schedule, claimed a coiut. ^ ^ 

moiety of the estates devised to Francis Macnamara Faulkner and ^ ^^J^ ^^^9 
^ tbat the name- 

Maria Faulkner, on the ground that, notwithstanding the use of the should control 

the descrip- 
name ^' Maria," she Catherine must have been the person intended tion, and that 

M. F. was, 
by the testator, since the description was applicable to her, but not therefore, end- 

tied. 
to Maria. - , 

It appeared from the aflTidavita of Maria Faulkner (now Maria 'S'«'«"«»'« 

VOL. 11. 46 



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362 CHANCERY REPORTS. 

1861. Papeira) and Catherine Faulkner (now/ Catherine Plunkett) that 

X. JS. Court. ^ 

^' ' Catherine had gone to reside, in 1817, with her ancle William 

In re 

pujnkett's Martin, in France, and had stayed with him until 1822. That 

E STATE . Maria had never resided in France; but the preponderance of 
Statement, testimony went to show that she did not reside with the testator ; 
that she had lived at various times in IVIalta, England, Wales and 
Ireland, and that, at the time of making the will, she was most 
probably resident in Carlow with her micle Henry Faulkner. The 
testator, at the time of making his will, was seventy-one years of 
age ; and it was sworn that, soon after that time, he became inca- 
pable of managing his affairs. These were the only material facts 
in the case. 

Mr. M. B, Smithy for the petitioner. 

Mr. S. B. Millar and Mr. Trevor, for the objector, Catherine 
Plunkett. 

Mr. J. E, Walsh and Mr. J. H. Orpin, for Maria Papeira. 

Argument. On the question of admission of extrinsic evidence the following 
cases were cited i^Delmare v. Robello (a) ; Holmes v. Cusiance (b) ; 
Stringer v. Gardiner (c). On the question whether the name or 
the description should be treated as determining the object of the 
gift, the following cases were cited, among others : — Newboh v. 
Pryce (d) ; Doe d. Gains v. Bouse {e) ; Standen v. Sianden (f) ; 
Smith V. Campbell (g); Stockdale v. Bushby{h)\ Bemasconi y. 
Athinson(i)i Smith v. Coney (A); Bradshaw v. Bradshaw(i); 
Bennett v. Marshall (m) ; Camoys v. BlundeU (n) ; Feltham's 
Trusts (o) ; Beaumont v. Pell{p) ; other cases collected in Jarman 
on Wills, vol. 1, p. 313, and 2 Taylor on Evidence, p. 974. 

(a) 3 Bro. C. C. 446. (6) IJJ Ves. 279. 

(c) 27 Beav. 35. (</) u sim. 854. 

(e) 5 C. B,. O. S., 422. (j) 2 Ves. jun. 589. 

ig) 19 Ves. jun. 400. (A) 19 Ves. jun. 381 . 

(0 10 Hare, 345. (j^) 6 Ves. jun, 41. 

(0 2 Y. & C, Exch.. 72. (m) 2 K, & J. 740. 

(«) 1 H. of L. Cm. 786, 791. (o) 1 K. & J. 52a 
0») 2 P. Wms. 141. 



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CHANCERY REPORTS. 



363 



D0BB8, J» 

The question in this case arises on the construction of the will 



Feb. 20. 
Judgment, 



1861. 
L. E. CwTt, 

of Francis Macnamara, which bears date the 22nd of August 1820. flunkett's 
No doubt arises on the will, taken per se ; but the doubt arises bstate. 
from extrinsic evidence, from which it appears that the testator had 
two grand-daughters, one, Maria Faulkner, who was not living in 
France, and another, Catherine Faulkner ; and she was, at the date 
of the will, living with her uncle Martin in France. The first 
question is with regard to the admission of parol evidence. The 
rule of law is settled that, where there is no ambiguity on the face 
of the will, but the ambiguity is shown l>y extrinsic evidence, then 
parol evidence will be admitted to explain the will. There is ano- 
ther principle, which is this, that the Court, in construing a will, 
will receive any evidence which places it in the same situation, as 
to a knowledge of facts, which the testator was in at the time he 
made the wilL It is quite clear, therefore, that parol evidence may 
be received in this case, to show that Maria Faulkner was not 
living with her uncle Martin in France* The parol evidence shortly 
amounts to this ; the testator was upwards of seventy years of age, 
and lived at Castletown, in the county of Clare ; he had two grand- 
daughters—one, Maria, and the other, Catherine. There is not 
very much evidence with regard to the facts connected with their 
residence at the time (it is upwards of forty years ago) ; but it 
appears clear from that evidence that Catherine Faulkner was 
residing at that time in France with her uncle Martin ; while, at 
the same time, it appears that Maria Faulkner was not residing 
with the testator, as it was alleged, but that she had been travelling 
about with another uncle, and that the testator resided at Castle- 
town, in the county of Clare; but that there was another place 
of the same name in Ca'rlow, where Maria resided at the date of 
the will. That is the only material evidence, as it appears. There * 
is one thing which would be very material in the construction of 
the will; and that is, if it could be shown that Maria Faulkner 
was of age at the date of the will. There is, however, no evidence 
of that ; and indeed it is quite clear that she was under age at the 
time of the will. If she had been af age, and Catherine had not, 



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364 CHANCERY REPORTS, , 

1861. then the limitation over in case of her dying under age would have 
Z. E, Court, 

v.-i-^v'^^ been applicable to Catherine only, and not to Maria. That would 
In re 
plunkett's have made all the difference in the construction of this will. Then 

ESTATE, ij^^ question is, whether the testator, having bequeathed the pro- 
Judgmenf, perty to '* Maria Faulkner, living with her uncle Martin in France," 
the name *^ Maria" is to prevail over the description, "living with 
her uncle Martin in France,** according to Lord Bacon's maxim, 
Veritas nominis ioUii errorem demonstrationisf and, secondly, whe- 
ther the bequest is void for uncertainty ? 

There was some reason to contend that it was void for uncer- 
tainty ; but there are two cases which show plainly that the princi- 
ple of law is, that if it is possible to give a reasonable construction 
to the words of the bequest, it is not to be held void for uncertainty ; 
and this case comes within the principle of those cases. The first 
of these cases is Adams v. Jones (a). In that case the question was, 
whether, under this bequest, " I give to Clare Hannah Adams, the 
wife of Thomas Adams, of Walworth aforesaid, writing-clerk, the 
sum of nineteen guineas," the wife of Thomas Adams, whose name 
was Hannah, or his daughter, whose name was Clare Hannah (and 
who, at the date of the will, was an infant two years old), was in- 
tended, or whether the gifl was void for uncertainty ? In that case 
the Vice-chancellor Turner observed — '*A disposition cannot be 
avoided for uncertainty, if the Court can arrive at a reasonable 
degree of certainty. In this case, I think the party to be benefited 
is reasonably certain." The same was laid down in Bemaseoni v. 
Atkinson (6), where the Vice-Chancellor observed — " If it were res 
integra we should be much disposed to hold the devise void for 
uncertainty ; but the cases of Doe v. HuthwaHe^ and Bradshaw t. 
BradshaWj are against this conclusion." These cases show that, if 
it is possible for the Court to come to a reasonable concludon, the 
bequest will not be held to be void for uncertainty. Taking it then 
that, in this case, a reasonable conclusion can be arrived at, the next 
question is, whether the name or the description is to prevail? 

A number of cases have been cited, which, in point of (nci, are 
not applicable exactly to the present case ; for this reason, that they 

(a) 9 Hare, 486. (6) 10 Hare, 350. 



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CHANCERY REPORTS. 365 

yiere cases in which there was no person of the name used by the 



1861. 
Z. E. Court. 



In re 



testator. The name used was not the correct name of any person. 

I do not Uiink, therefore, that those cases are applicable, with the plunkett's 

exception of one. Lord Camoys v. Blundell{a\ and in which the estate. 

principles of construction, in such cases, are laid down in the opi- Judgment, 

nions of the Judges. At p. 786, Baron Parke says, '* It may be 

conceded that where a devisee is described by his Christian and 

surname, and some other distinctive circumstance, and no person 

answers both descriptions, and there is nothing in the rest of the 

will, or the admitted evidence, to show who was meant, the name 

would prevail, and the descriptive circumstance would be rejected. 

But the maxim veriias nominii toliit errorem demonstraiioni* is 

not inflexible, as has been explained by Lord, Chief Justice Gibbs, 

in the case of Doe v. JSuihwaiie, For, if it be clear, upon the due 

construction of the will, with reference to the evidence of the state 

of the £unily as known to the testator, that the meaning of the 

testator, as expressed "by the will, was, that the person described, and 

not the person named, was to take, the description will prevail over 

the name ; for the rule in question has no other object Uian to assist 

in discovering the meaning of the will, and is not applicable where 

it leads to a construction contrary to the expressed meaning of the 

testator." 

Nothing can be clearer than the principle laid down by Baron 
Parke in that case. The question then which I have to decide is, 
whether I can come to a reasonable conclusion that Maria Faulkneir 
was the object of the testator's bounty, or that he meant Catherine 
Faulkner ? I have come to the conclusion that, in this case, the tes- 
tator meant Maria Faulkner, his grand-daughter, and that the prin- 
ciple '* veriias nominii iollii errorem demonetrationis ** must apply, 
and that the further description of ^* now Lving with her uncle 
Martin in France'' was a misdescription, and should be rejected. 
Maria Faulkner . is, therefore, entitled to a moiety of the fand in 
Court 

It is a remarkable thing in this will, that the testator does not 
appear to have mistaken the Christian-name of anybody. In almost 

(a) I H. of Lords Cases, 778. 



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366 CHANCERY REPORTS. 

1861. all the cases the Christian-name of some one was mistaken, but here 

«^.»ly '' there was no mistake whatever. In the gift he does not describe 

flunrett's Maria Faulkner as living in France. Her name in the phrase 
ESTATE, giving the gift is not embarrassed with any description. It is not 
Judgment, till afle^ the gift (which is complete in itself) that the description 
comes as if in a parenthesis, thus — ** I leave and bequeath unto my 
grandson Francis Macnamara Faulkner and to his sister Maria 
Faulkner mj grand-daughter share and share alike (said Maria 
Faulkner now living in France with her uncle Martin), all my 
estates," &c» It is not the bequest which shows that the person 
Who was the object of his bounty was living in France with her 
uncle Martin* The gift is a distinct gift to Maria Faulkner, and 
the place of her residence merely pointed out incidentally. I can 
very well imagine that an old gentleman having two grand-daugh- 
ters, neither of whom lived with him, would more easily and 
naturally mistake the description than the Christian-name. He 
first gives a life estate in the whole to.his daughter Maria Faulkner. 
That was the same name as his grand-daughter Maria, and makes 
it less likely that he should have made a misuke in the name. 
Putting all these things together, I have come to the conclusion that 
the name is correct, and the deschription is to be thrown over. 

There is in Kay ^ J.^ p. 528, a case (In re FeUham's TrueU) 
which has been referred to, and which appears to be a very strong 
case in favour of the opposite view to that which I have taken. In 
that case there was a bequest of £100 to Thomas Turner, of 
Regency-square, Brighton. The testatrix had two nephews, the 
said Thomas Turner, who did not live in Regency-square, and 
James Turner, who did live there. Extrinsic evidence was ad- 
mitted, and a prior will was produced, made three years before, in 
which the testatrix had given a legacy to Thomas Turner, of 
Regency-square, Brighton, surgeon. James Turner was a surgeon ; 
and this fact was held to be conclusive evidence in his favour, as it 
had not been shown that the testatrix had discovered her mistake as 
to the name, before she made her last will. Now there was in that 
case one element which is .not to be found in this, and which appears 
to have been the chief reason of the decision, namely, that the lady 



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CHANCERY REPORTS. 



367 



had made a prior will, and had there described the intended object 1861. 

T jp Court 

of her bounty as a surgeon, which was not the profession of the sL.^^ * 

person named. In that case the Court, in order to have given effect flunkett's 
to the name, must have disregarded, not a misdescription in point of estate. 
residence merely, but two misdescriptions, one in point of residence, Judgmemu 
and one in point of profession. This makes a broad distinction 
between the present case and that of Feltham^s Trusts, 

In the case of NewboU v. Pryee (a), there was a bequest to John 
Newbolt, second son of William Stranways Newbolt, Vicar of 
Somerton. The Vicar of Somerton was William Robert Newbolt. 
His second son was Henry Robert, and his third son John Pryce. 
It was held that John Pryce Newbolt was entitled to the legacy. 
The Vice-Chancellor thought there was sufficient " Veritas nominis " 
to take away the ^* errorem descriptionis** 

Upon all these grounds, I think the object of this gift is Maria 
Papeira. 

(a) l4Si]n.S54. 



In the Matter of the Estate of 

JOHN K. EDWARDS, Owner; 

Ex parte ANNA MARIA DOWLING, Petitioner. 

The question in this case was raised on a motion by the petitioner, to 
make the conditional order for sale, previously granted by the Court, 
absolute. Cause was shown against making the order absolute, by 
P. W. Jackson, a mortgagee on the estate. Jackson grounded his 
opposition on his deed of mortgage, dated the 8rd of May 1859. 
This deed contained a proviso that Jackson would not call in the 
sum secured (£2600) until two years had elapsed, or twelve months' 
interest had accrued due; and **that in case one full year's interest 

gagement entered into at the time of 



/iMel2. 

A_jaiortgagorf 
by a~ proTiso 
in a mortgage 
deed, agreesm 
a certain event 
to sell to B, 
the mortgagee, 
for a flxd 
sun, part of 
mortgaged 
premises. — 
Betd, that the 
proTiso was 
totally Toid, 
as being an 
onerous en- 
tfae mortgage. 



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368 CHANCERY REPORTS. 

1861. on said principal sum of £2500 shall become due and be unpaid 

Z. E. Court, . ^ . , . ^ . ^ /. . .1 
at any time during the said period or two years, or in case the 

EDWABDs' *^^^^ ^ Edwards shall, at the expiration of the said period of 
ESTATE. i^Q years, be unable to redeem the mortgaged premises, it shall 
^tatemenL and may be lawful for the said Peter W. Jackson, his exe- 
cutors, administrators or assigns, if he or they should so elect 
or prefer, tp purchase for his or their own use and benefit ; and 
the said J. K. Edwards doth hereby for himself, his heirs and 
assigns, promise and agree to sell and absolutely convey, by all 
necessary deeds and assurances in the law, to the said P. W. Jack- 
son, his heirs and assigns," the part of the mortgaged premises 
called Old Court, for such sum as, with the sum of £2600, and 
interest then due thereon, would make £4000. Jackson now, 
relying on this agreement, contended that Edwards was boqnd 
to complete the conveyance of Old Court to him. 

Argument. Mr. R, R, Warren (with him Mr. Wm. Woodroffe) appeared 

for the owner and the petitioner. 

Mr. Brereion appeared for the objector, P. W. Jackson. 

Mr. Warren. — The cause alleged is a proviso or condition pf 
forfeiture of the mortgagor's equity of redemption, contained in the 
deed of mortgage itself. This condition is void, for it is incon- 
sistent w'.h the doctrine '^ once a mortgage always a mortgage.'' 
The very terms of the proviso are that, in default of redemption 
in^two years^ the right to, redeem should be lost for ever, and the 
mortgagor obliged to sell to the mortgagee out-and-out. Even if the 
condi(;ion were good in law, it is gone ; for it is not shown that the 
mortgagor was unable to redeem on the day named ; and on that 
day the mortgagee should have elected to take advantage of the 
condition. The case is like a condition of re-entry at Common 
Law for non-payment of rent, when demand must be strictly made. 

Reference was made to the cases collected at s. 1019 of Story*$ 
Eq. Jur,^ and Coote on Mortgages^ p. 14 ; Crui$e*i Dig.^ tit. Mort- 
gage^ p. 7 1, 4th ed. ; Jennings v. Ward {a) ; WiUei v. Winnell(b). 

(c) 2 Vera. 520. (*) 1 VeriL 488. 



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CHANCERY REPORTS- 369 

Haborbatk, J. 1861. 

I have 116 doobt that this agreement on the part of Mr.^ Edwards, w^';-.— > ' 
to sell the Old Court estate for £4000, in the event of his not being bdwabds' 
able to redeem the mortgage on the 4th of December I860, is totally bstate. 
Toid, and ought to be disregarded by a Court of Equity. June 14. 

The rule of Equity is, that no onerous engagement of any de- 
scription can be entered into by a mortgagor with his mortgagee 
on the occasion of the mortgage. I do not doubt that if this contract 
had been entered into by Mr* Edwards with Mr. Jackson, after the 
completion of the mortgage transaction, and when Mr. Edwards had 
got the money in his pocket, it would be perfectly valid ; but then 
the mortgagor would be under no kind of pressure, and he would be 
able to exercise his unbiassed judgment, as to whether it was a fair 
contract. But when the contract i^ part of the arrangement for the 
loan, and is actually inserted in the mortgage deed, it is presumed '^ 
to be made under pressure, and is not capable of being enforced. 

If the land had fallen in value below £4000, Mr. Jackson would 
have insisted on being treated as a mortgagee ; but, as it has risen, 
he says he is a purchaser : that b, he gets a collateral benefit over *^ 
and above his principal and interest, which a Court of Equity never 
permits. 

This contract is virtually a clause of foreclosure pn a fixed day ; 
and even in England, where foreclosure is possible, it only takes 
place after a bill has been filed for the purpose, and after the mort- 
gagor has had one or inore days fixed for paying the debt. 



In the Matter of the Estate of 
The Assignees of WILLIAM RODDY, Owners; 
Ex parte FRANCIS FITZGERALD, Petitioner. j^^ ^^ 

Ths question in this case arose on the ruling of the final schedule. A mortgages 

Blackftcre to 
The facts appear in detail in the judgment. B, and giToa 

him as a 
coUateial security a jadgment which attaches on both Blackacre and White- 

VOL. 11. 47 



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370 



CHANCERY REPORTS. 



1861. 
X. E. Court, 




Argument, 



June 2i. 
Judgment. 



Mr. Frederick Smith appeared for the petitioner. 
Mr. Robert Owen, for the mortgagee, Robert Clifford. 
Mr. David Sherlock and Mr. John M^MahoUy for the judgment 
creditor, Martha Fitzgerald. 

Reference was made to Hartley v. O^Flakerty (a) ; Averall v. 
Wade (b) ; Handoock v. Handeook (c). 

DOBBSy J. 

William Roddy, the late owner of two teveral freehold estates 
which have been sold in this matter, and which, in the course of the 
argument of the question now before the Court, have been called 
respectiyelj the mortgaged and the unmortgaged lands, was indebted, 
by judgment of Hilary Term 1834, to Martha Fitzgerald ; but the 
said judgment, not having been either re-docketed or re*registered 
until the 28rd of July 1865, has been placed upon the schedule of 
incumbrances, after the. several charges on the lands prior to the 
latter date. As the consequence is that the funds in this Court, 
representing all the lands sold, both mortgaged and unmortgaged, 
without separating the amount produced by the sale of ihe former 
from that produced by the sale of the latter, will not be sufficient 
to pay Martha Fitzgerald's judgment debt in the priority in which 
it now stands, she has by an objection raised the point now to be 
decided. It is this: — William Roddy, by deed dated the 4th of 
September 1833, mortgaged the lands which have been called the 
mortgaged lands, to Henry Fulton, to secure £1600, and gave the 
then usual judgment collateral to secure the said sum ; this judg- 
ment is of Easter Term 1834, but, having been first re-registered, 
takes priority of that of Hilary Term 1834. By indenture of the 

(a) li. & G., temp. Flank., 206. (6) LI. 4 G., temp, Sng., 252. 

(c) 1 Ir. Chan. Rep. 444. 



aero. SabsequenUy B assigns his debt and securities to .C, and A at the same time 
mortgages Blackacre to C for a further sum, with.acotenant against all incum- 
biances except the mortgage to B. — Heldt that C, as against a pnune incumbrancer, 
is entitled to be paid the debt assigned to him by B out of Whiteacre first, so as to 
leave Bladcacre unimpaired to meet the second mortgage made to C himself. 



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CHANCERY REPORTS. 



371 




21st of October 1842, and made between Henry Folton of the first 1861- 

J E Court 

part, William Boddj of the second part, and Robert Clifford of the ' ' 
third part, the mortgage of the 4th of Septeikiber 1833 is assigned 
to Bobert Clifford, and, by the same deed, William Roddy gives a 
further mortgage of the same lands to Robert Clifford, to secure Judgment 
advances to be made by him to Wm. Roddy, to the amount of £600 ; 
and by indenture of the same date, the judgment of Easter Term 
1834 is assigned in the common form by Henry Fulton to Robert 
Clifford. Now Martha Fitzgerald contends that Robert Clifford must 
be paid the whole sum due on account of the mortgage of 1 833, 
out of the produce of the sale of the mortgaged lands alonCf and 
that the residue thereof is the only fund applicable to the payment 
of the subsequent mortgage of 1842, for £500 additional. The' 
representative of Robert Clifford contends that he is, by virtue 
of his judgment collateral, entitled to be paid what is due in 
respect thereof out of the unmortgaged lands, or at least rate- 
ably out of them and the mortgaged lands, so as to leave the 
produce of the mortgaged lands or the residue to pay what is 
due on account of the second mortgage of 1842. 

The deed of assignment and further mortgage of 1842 recites 
the mortgage of 1833, and contains a covenant by Wm. Roddy, 
that the principal sum of £1500 thereby secured is due, and 
that the lands are free from all incumbrances except the said 
recited mortgage ; and also a covenant by Wm. Roddy for quiet 
enjoyment, and ihe common form of covenant for further assurance 
by Wm. Roddy and Henry Fulton. I do not see that the judgment, 
being one collateral with the mortgage of 1833, instead of being an 
independent security, can make any difference ; as, if so, the effect 
would be to make Robert Clifford worse off, by being entitled 
to the mortgage as Well as the judgment of 1833, than he would 
have been if he had had the judgment only. 

If the deed of 1842 contained no covenant against incumbrances, 
the only distinction between this case and that of Handeoek v. 
Handcoch (a) would be, that the same person is entitled here to 
both securities ; for if Henry Fulton had retained the mortgfige 

(a) 1 Ir. Clian. Rep. 444. 



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372 



CHANCERY REPORTS. 



1861. 
X. E. Court. 




Judgment, 



and judgment of 1833, and there was no covenant against incum- 
brances, this case would not have been distinguishable in principle 
from that case, and Robert Clifford would have thrown Fulton's 
mortgage on the unmortgaged lands, leaving the mortgaged lands 
free for his (Clifford's) mortgage, on the authority of AveraU ▼. 
Wade (a), as extended by Handeoek v. Handeoek to cases where 
there is no covenant against incumbrances, but where there is 
a covenant, as here, for quiet enjoyment. 

The question then comes to this — does the exception of the 
mortgage of 1833 from the covenant against incumbrances make 
the difference, inasmuch as, by the terms of the deed of 1842, the 
security taken by Robert Clifford for his £500 advanced is only 
what remains of the mortgaged lands after payment of the mort- 
gage of 1883 ? and if it does not, does the fact that Robert Clifford, 
the same person, is owner of both mortgages and of the judg- 
ment collateral with the first, make any difference? I cannot 
see that the exception makes any difference, for the words are 
in the affirmative, that the lands are free from all incumbrances 
except the prior mortgage; and it would place a restriction, for 
which I kno^ of no precedent, on the meaning of those words, 
to hold that they were to confine the security of the second 
mortgage to the value of the lands, after deducting in every 
event the whole suiin secured by the first mortgage. Although 
the lands are by the covenant subject to the first mortgage, it 
could hardly be contended that, therefore, the second mortgagee 
was not to have the benefit of any pfiyment on account of the 
first mortgage out of the personal estate of the mortgagor ; and 
if so, should he not have the benefit of any equity that would 
arise aliunde^ to relieve the lands in whole or in part from the 
first mortgage? 

I think, therefore, that notwithstanding the wording of the 
covenant against incumbrances, the second mortgagee can throw 
the first mortgagee, as being also a judgment creditor, on the un- 
mortgaged lands. 

The circumstance of R. Clifford being himself ehtitied to both 

(a) L. & G., temp, Sng., 252. 



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CHANCERY REPORTS. 373 

securities appears to me to make the case more feivourable to 1861. 

L.E, Court* 
his right to thirow the first mortgage on the unmortgaged lands, 




than if he had not been entitled to the first mortgage and judg* 

ment. For he could, by virtue of his judgment, have proceeded 

to recover the whole amount due out of the unmortgaged lands; Judgment* 

and if he had done so, the case of Hartley v. O^ Flaherty {a) 

shows that, in such an event, the parties having subsequent 

charges affecting the unmortgaged lands would have no equity 

to be recouped out of the mortgaged lands. 

For these reasons, I think the representative of R. Clifford 
entitled to be paid the sum due on account of the mortgage and 
judgment of 1833, at the very least rateably out of the mortgaged 
and unmortgaged lands, which will leave enough of the proceeds 
of the mortgaged lands to pay the sum due on the mortgage of 
1842; and, therefore, that the rulings and orders for payment 
already made on the schedule are to remain unaltered. 

Objection overruled accordingly, with costs* 

(a) L. & G., teMp. Himk., 208. 



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374 CHANCERY REPORTS. 



1860. 
Ch. Appeal, 



Court at Hfftal in CiAnttvp. 
DODDS V. DODDS.* 



Nov. 27. 



Bequest of por'^ This case came before the Court upon an appeal from an order of 

tel real "to the Lord Chancellor, dated the 4th day of June I860, by which 

?Sfdtie8^^- ^^ S^^^ relief to the petitioner, under the following circumstances : — 

^e\iu^ By lease, dated the 30th of October 1799, lands were demised for a 

F"d fiJlfl^to ^^"^ ®^ twenty years, with a toties. quoties covenant for renewal. 

his brother R. The lessee's interest became Tested in G^rge Dodds, who, in 1842, 

I also order ° ' 

that the part obtained a renewal for twenty years. In 1847, George Dodds 

of the lands 

which I be- made his will, which, so far as material, was as follpws : — ^ I leave 

queath to my • 

son J. is to and bequeath to my son Robert that part of land that Felix 

youngest son, Conly lived in, which I hold by a ioHous quotious covenant of 

^comtom^." renewal. I also order, that if my son Robert takes a notion to sell 

F^d not take ^^*^ P**"^ ^^ ^^^^ which I bequeath to him, that I will not permit 

an absolute jjjm ^ ^^ ^ anyone but his brother John. I also order, that if my 
interest in his ^ ^ ^ 

portion of the gon Robert dies without a lawful meal heir, his part of lands falls 
lands, and that ^ 

the gift oyer to to his brother John. I also order, that the part of land which I 
B. was not too 
. remote. bequeath to my son Robert is to fall to his youngest son, without 

Statement, any incumbrance. I also leave and bequeath to my son John that 

part of land which I lived in at the time Conly had the other part ; 

I also order, that if my son John takes a notion to sell that part of 

land which I bequeath to him, that I will not permit him to sell to 

anyone but his brother Robert. I also order, that if my son John 

dies without a lawful meal heir, his part of the land falls to his 

brother Robert. I also order, that the part of lands which I 

bequeath to my son John is to fall to his youngest son, without any 

incumbrance." These lands were the, lands comprised in the lease 



*" Coram The Lord Chancellor, Lord Justice of Appeal and Mr. 
Justice Ball. 



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CHANCERY REPORTS. 



375 



of 1799, and the renewal of 1842. In 1849, the testator died, 
leaving hia said two sons, Robert Dodds the petitioner, and Johti 
Dodds. The petitioner having emigrated to America, John Dodds 
obtained a fee-farm grant of the lands comprised in the lease of 
1799, under the provisions of the Trinity College, Dublin, Leasing 
and Perpetuity Act. In 1869, John Dodds died intestate and with- 
out male issue, leaving one child only, a daughter, who was named 
as a respondent to the petition, and never having had a son. 

The petition in this suit was filed in I860, stating the above 
facts, praying that Robert Dodds should be declared entitled to the 
said lands, and for a conveyance, and an account of the rents and 
profits. The respondents alleged a sale of the petitioner's interest 
to John Dodds, and relied on the construction of the will, as giving 
an absolute interest to John Dodds ; but the petitioner, by his 
affidavit in reply, denied the sale to him, and relied oi^ the 
Statute of Frauds. 

The account of rents and profits was waived at the Bar. 

[See this case reported in the Court below, vol. 10, p. 476]. 



1860. 
Ch. Appeal, 

DODDS 

V, ' 
DODDS. 

Statiment, 



Mr. C Andrews and Mr. Kay^ for the appellant. 



Mr. Seijeant Lawson and Mr. Arthwr Jaekion^ contra. 

Wynoh*i Trusts (a) ; Gummoe v. Howes {b) ; Doe d. Burren v. 
Charlton {o) I Knight v. Ellis (d); Doe r. Laming {e) ; Good* 
little d. Peahe v. Pegden (f) ; Feame Con. Bern., p. 164. Britton 
Y. Twig (g) ; Per. Prof. Booh, p. 132 ; Idle v. Coohe (h) ; Jesson v. 
Wright (i). 



Argmnent. 



The LoBD Chanceixob. 

When this case came before me in the^Court below,! came to Judgment. 
the conclusion that the testator had, by his subsequent language, 



(a) 5 De G., M. & G. 18& 
(c) 1 Scott, N. S., 290. 
(0 2 Burr. 1100. 
(S) 3 Mer. 176. 

(0 2 Bill. 



(6) 23 Bear. 184. 
(<0 2 B. C. C. 570. 
Cf) 2 T. R. 720. 
(A) 2 Lord Ray. 1152. 



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376 



CHANCERY REPORTS. 



1860. 
Ch, Appeal, 

DODD8 

V. 
DOBD8. 

, Judgment, 



explained what he meant by the words *' male heir." I thought that 
there was evidence to show his intention to change the course of 
devolution from the direction which it would have taken if the 
propevtj were to descend to heirs of the body, or heirs male of the 
body, which would have required an estate tail, and would have 
given an absolute interest in personalty. It is plain that these 
words, strong as they are, are capable of explanation, that they 
may be modified so as to show an intention to give to other persons 
than those who would take by descent. This distinction is estab- 
lished by a lopg class of cases, and is admitted even in Jesson v. 
Wright. These cases were referred to by Seijeant Lawson, and 
collected by Mr. Jarman (a) ; and they show conclusively that these 
words are capable of explanation ; and that if they are used in such 
a way as to show that they meant not heir in a general sense, but 
son or child, then they must be modified, and receive the sense 
affixed to them by the testator. I quite agree with Mr. Andrews, 
that, in order so to modify the words, language must be used which 
cannot be misunderstood. 

Mr. Kajf has argued, very ingeniously, that these words only 
mean that when the estate descends to the youngest son, if it ever 
does so descend, it is to come to him without incumbrance ; but I 
cannot help seeing that such is not their true construction, and that 
it is intended that the youngest son should take in remainder — an 
arrangement wholly inconsistent with the gift of an estate tail, and 
which would disturb the line of descent. Where that is the case, 
there are authorities to say that the efiect is not to create an estate 
tail. Their efiect is thus summed up in 2 Jar. WiUt, p. 802 : — 
*' But it seems that if the superadded words of limitation operate to 
change the course of descent, they will convert the words on which 
they are engrafted into words of purchase, as in the case of a devise 
to a man for life, remainder to his heirs, and the heirs female of 
their bodies.'' 

That, to some extent, illustrates the view which I took of this 
case in the Court below. There is the word ^'son," or rather, there 
are the words *' youngest son," used in a way quite inconsistent 

(c) 2 Jar. on Wills, 312. 



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CHANCERY REPORTS. 



377 



with, and which excludes, the idea of an estate tail in the eldest son. 
On these grounds I think that, on the face of the will, there is ample 
evidence, which cannot be misunderstood, of the sense in which the 
testator used the words "heir of the body." 

The Lord Justice of Appeal. 

I agree with the Lord Chancellor, that this appeal should be 
dismissed, and the decree affirmed. The first clause in this will, 
which is the only direct disposition of the property to John Dodds, 
would have given him the interest, which was leasehold, absolutely ; 
but this effect of it was liable to be controlled and varied by the 
subsequent words of the will ; and it is so varied by the intention 
which is subsequently expressed, and to effectuate which his interest 
must be limited to an estate for life. There can be no doubt that 
it was competent in the testator to do so ; but it was contended that 
this has not been effected, because the second bequest, that is, the 
bequest over to Richard, is, '* if John die without a lawful heir male ; " 
and it is argued that, as these are words of limitation sufficient to 
give John an estate tail in real property, they have such a fixed 
and . infiexible operation as does not admit of their control by the 
subsequent clause or clauses of the will. From this argument I 
altogether dissent ; it is quite at variance with authority, and would 
fetter the power of the testator, in a manner not to be recon- 
ciled to the law, that his intention, however collected or expressed, 
is to be effectuated. Have we, then, in this will an intention that 
the heirs male of John were not to take, as they would take if he 
were tenant in tail male? There is, in my opinion, in the limita- 
tion over to the youngest son of John, the most explicit evidence of 
the intention that all the sons were not to take in succession (as 
heirs of his body) ; but that, on his death, the youngest of his sons 
should take the whole interest — to the total exclusion of his elder 
brothers, not one of whom could, therefore, ever succeed to the pro- 
perty as heirs male of their father, without a violation of the plainest 
evidence of the intention to exclude them. Thus we have an un- 
equivocal disposition of the property on John's death, that negatives 
the inference and construction that, by that, the preceding clause 
VOL.11. 48 



1860. 
Ch, Appeal. 




Judgment* 



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878 



CHANCERY REPORTS. 



1860. 
Ch.ApjptoL 

DODDS 

V. 
DODOS. 

Judgment, 



was intended to transmit the property to the heirs male of John, 
according to their seniority. 

Mr. Justice Ball. 

I am of the same opinion as the Lord Chakcellob and the 
Lord Justice of Appeal. It has been assumed, at the Bar, 
that the words used were *' heirs male. Or heirs male- of the body." 
Now those words are very difficult to deal with, and are treated in 
all our Courts as the most embarrassing and inflexible which can be 
employed ; but they do not occur in this will. The gif^ here is, if 
the son should die without a male heir, which is not so conclusive 
in its effect ; and then it is clear that the words *' male heir ** have not 
been used in their proper sense, for he has directed the property to 
go to the youngest son, without any incumbrance. If it so devolved, 
it would not go to the heir male ; ^nd thus the use of this expression 
gives a construction to the words " heir male,'' and shows what the 
testator really means. We are bound to give to those words the 
construction which the testator intended them to have ; and it 10 
plain, beyond all doubt, that his meaning was, that the estate should 
go to the youngest son of John, in the first instance, and then, for 
want of a younger or any other son, that it should go over. 



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CHANCERY REPORTS. 379 



1860. 
ChoHperp, 



DORAN V. CARROLL. 
(In Chancery.) 



Deo. 3. 



The petition in this case was filed by Mrs. Sarah Letitia Doran, by Where a les- 
see, bound by 

her next friend ; and stated that, by an indenture of the 20th of covenant not 

to commit 

February 1856, Edmond Doran demised, for three liyes or thirty- waste, has 

committed acts 

one years, to the respondent, Thomas Carroll, the lands of Ninch, of waste, for 

with the mansion-house and other lands, reserying timber, timber g^ merely no- 

trees, woods and under-woods ; with a coyenant by the said respond- J^ giyen,^ the 

ent to maintain all timber and timber trees, and that none of the £??"1m?**««I 

' eery will not 

same should be cut down, lopped or injured, without the consent entertain a eoit 

of the said Edmond Doran, or his heirs; and a coyenant by the founded on 

those acts of 
lessee to repair, preserye and keep all edifices, buildings, wall- waate, where 

it appears that 
fences, gates, gateways and improvements in good repair. It he does not 

contemplate 
further stated that the said Edmond Doran died in 1857, without committing 

any further 
issue, whereupon the petitioner became entitled, for her separate waste, nor as- 

use, to the reversion in the said premises expectant on the deter- ^mmiru* No 

mination of the said demise, for her life, with remainder to her ^^^ ^^3 

eldest son in tail. The petition further alleged that, in the month ^^^ b **^e 

of January or February I860, the respondent had broken down Chancery 

and removed a wall in the garden in said demised premises, which Act 1858. 

A tenant, by 
wall was sixty yards long, or thereabouts, nine feet in height, and replying to a 

two feet in thickness, and had fruit trees growing on each side bi^ withthe 

of it. That the respondent had dug up fruit trees in the garden, ^^ste and re- 

and had cut down and lopped a large quantity of timber trees 2^^oomi«n^ 

growing on the lands, without any consent, and cut down, injured JfS?*t ^^ ^*' 

and removed a ver^anum* tree, of considerable value, in the lawn, in prepared to 

defend any ac- 
the said demised premises, and several ornamental and fruit trees, tion which may 

be brought 
against him, 
and to show that, so far from having committed injury, he has materially improved 
the premises demised to him," does not assert a right to commit the waste com- 
plained of. 



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380 CHANCERY REPORTS. 

1860. including a large number of apple trees, in the said garden ; and 
ChaMC€ru» 

that he had opened a gravel-pit, about nine feet long, about three 

feet wide, and about three inches in depth, in the said premises, on 
a rising ground in front of the said mansion-house ; and that it was 
Statement. ^^^ intention of the respondent to dig gravel from the said lands. 
The petition further stated that the respondent had lopped eight or 
nine evergreen trees, so as to deteriorate them in value. 

The petition stated the above, amongst other matters, and prayed 
for an account of timber, timber trees, ornamental timber and fruit 
trees, cut down, and of the injury done by opening a gravel-pit, and 
breaking down walls and fences, and for an injunction against cut- 
ting timber, and throwing down walls and fences, or committing 
other waste, and for damages. 

Prior to the fiUng the petition, the petitioner's solicitor had writ- 
ten to the respondent the following letter: — "I am directed by Mr. 
and Mrs. OTerrall Doran to take the most summary proceedings 
against you, under the covenant in your lease, for the cutting large 
quantities of timber, breaking down and destroying valuable stone 
walls, and otherwise injuring the premises demised by the lease 
The penalties and consequences, as to what you have done as to the 
cutting of the trees,. are very serious ; and I require you to inform 
me, on or before Friday next, whether you will pay the penalties 
already incurred under your lease, and stop any further damage to 
the trees. I beg likewise to inform you that my clients have sus- 
tained heavy damage, by reason of your throwing down and 
removing the walls ; and I require you to inform me, by the above 
day, whether you are prepared to pay such damages, or have the 
walls re-constructed.'' 

In answer to this, the respondent's solicitor wrote: — *'Mr. Carroll 
has forwarded to me your letter, with instructions to reply to it, and 
to appear for him. I will not put you to the trouble of serving him 
with a summons and plaint ; but, if you will be good enough to fur- 
nish me with a copy, I shall appear for Mr. Carroll in the usual 
way, and am quite prepared to defend any action which you may be 
instructed to bring against him, and to show that, so far from hav- 
ing committed the injuries you have mentioned, he has materially 



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CHANCERY REPORTS. 381 

improved the premises demised to him. The lease in question was 
prepared by me; and I happen to know all that sobeequentlj passed 
between the parties to it, and am quite prepared to meet the claims 
set up by Mr. and Mrs. OTerralL Mr. Carroll informs me that 
your clients asked him to go to stay at Ninch for a few days, which 
be allowed them to do ; and that the return which he gets for his 
civility is a threatened action, the materials for which appear to 
have been collected while on a visit in his house. I shall make no 
comment on this, but leave it to be judged by a jury.** 

Shortly after these letters (which were put in issue), the petition 
was filed ; and to it, Mr. Carroll put in an answering affidavit, by 
which he stated that, when he took the lease of the lands of Ninch, 
the house was out of repair, and the lands in an exhausted condi- 
tion. That he top-dressed and drained portions of the lands, and 
repaired and improved the house, and had expended in such repairs 
and improvements about £1000. He further alleged that Edmond 
Doran had given his permission to cut down certain trees, for use 
on the premises; but Doran denied that, since the petitioner came 
into possession of the premises, he had cut or lopped a single tree 
on the premises. He admitted that he had taken down a wall in 
the garden, alleging that it had been injurious to the garden, and 
applied the materials of it in raising another garden-wall, to keep 
off the east wind, and that the trees which had been trained on it 
had a better prospect of bearing fruit than they had before. He 
further allied that, on an occasion when the removal of the wall 
had been pointed out to the petitioner, her husband, who was pre- 
sent, said that it was a great improvement. He further alleged 
that he had deposited the stones of the wall, which were unfit for 
building purposes, in a waste spot of the lands, and that he never 
intended to remove the stones off the lands, but did intend to apply 
them for drainage and other purposes on the lands. The respondent 
further averred that he never cut, injured, lopped or uprooted a 
single evergreen, tree or shrub on the premises ; but that his gar- 
dener grafted some good apples on some crab*trees through the 
plantations, and that two holly-trees were carried away by the' 



1860. 
Chamcery, 




Statemtni. 



JJ^ 



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382 



CHANCERY REPORTS. 



1860. 
Chancery, 




Argument, 



petitioner herself; and he denied making any gravel-pit, and that 
it was his intention to commit further acts of waste. 

Mr. Serjeant Sullivan^ Mr. David Sherhek and Mr. Curtis; for 
the petitioner., 

£yen on the respondent's admission here, waste has been com- 
mitted ; and, under the present law of the Court, it has jurisdiction 
to award damages in that case, even if the respondent have no 
intention of committing further acts of waste. But in his solicitor's 
letter to the petitioner he justifies his conduct, and asserts that 
he can defend it. That brings the case clearly within Tipping 
V. Aekersley (a) and Johnston v. Hall (b). 



Judgment. 



Mr. Brewster^ Mr. Hugh Law and Mr. J. F, Townsend, contra. 

The respondent, upon the evidence, is plainly an improving 
tenant, and does not intend to commit any further acts even of 
technical waste. The amount of damage actually done by the 
waste established in this case is so small that it comes within the 
principle of Lambert v. Lambert (c), as being below the dignity 
of the Court. The Chancery> Amendment Act 1 858 does not 
confer any new jurisdiction upon the Court; it merely gives an 
additional remedy, by assessing damages in cases where the jurisdic- 
tion by injunction attaches. In Tipping v. Aehersley^ the defendant 
contended that he had a right to continue the acts of which com- 
plaint was made, while the respondent here disclaims all intention 
of committing any further act even of technical waste. His letter 
does not allege a right to do anything injurious to the reversion. 

The Lord Chancellor. 

In this case, it is quite plain that there is not any case either 
for an injunction or for an account. This is a suit in which the 
petitioner sues as reversioner expectant on the determination of a 
lease, made to the respondent, Thomas Carroll, by the late Mr. 
Edmond Doran, who, it is alleged, was tenant for life under the 



(a) 2E. &J.264. 



(6) Ibid, 414. 



(c) 2 Ir. Eq. Rep. 210. 



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CHANCERY REPORTS. 383 

will of Denis Richard Doran. It has been suggested that Mr. 1860. 

ChoHcenf* 
Edward Doran had no power to authorise or consent to any act ^ , ' 

. , , mt. DORAN 

of waste, or to permit the tenant to cut down any trees, ine ^^ 

frame of the present suit, however, is not pointed to relief on that carboll. 
account. It does not allege that Mr. D6ran had not the power to Judgmau, 
make the lease, but, on the contrary, makes the case that the lease 
is binding, but the covenants broken. If the suit were constituted 
to impeach the lease, it would be a case for another mode of triaL 
Here, however, the question simply is, whether the conditions of 
this lease, or any of them, have been infringed by the tenant? 

The first alleged breach of duty to which I shall advert is the 
destruction of the wall. That occurred some time ago. Undoubt- 
edly it is an act of waste ; but it has been accomplished ; and it is 
now entirely for the consideration of a Court of Law. The wall is 
prostrate, and there is an end of it. It is clearly not a case in which 
a mandatory injunction to re-build the wall could be granted ; so 
that, as to this, it is a simple case to go to a jury, and I believe that 
no jury would give substantial damages ; and if the case were to 
go into the Master's office, I am quite sure that it would come back 
with a report of damages one shilling. Then, as to the trees, the 
respondent here does not contend that he has a right to cut down 
one single tree; he admits that, as to the timber, he is bound to 
maintain it ; and, therefore, it is not in the least like Tipping v. 
Aekersley (a), wher^ it was insisted by the plaintiff that one con- 
struction ought to be given to the instrument, and by the defendant 
that its true meaning was quite different. The suit in fact was 
founded on a question with respect to the extenl of the contract, the 
defendant claiming a right to do the things to which the plaintiff 
objected. Here, however, that is not the case. The respondent 
admits the whole instrument ; he admits that he is bound not to do 
any waste, and he proves that this was his case, by showing the 
consent, be it good or bad, which he had obtained from Edmond 
Doran in his lifetime, and from the petitioner afterwards ; and he 
shows that he stopped when her consent was revok^ji. Under all 
these circumstances, if I were to send the case into the office, I 

(a) 2 K. & J. 264. 



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384 



CHANCERY REPORTS. 



1860. 
Chamcery. 



think it would not produce any beneficial result to the petitioner. 
The respondent swears that there has not been a tree cut down 
^ since the petitioner wrote to withdraw her permission. Possibly 

CABBOLL. a case might have been made in another aspect ; but the petition 
Judgment. ^ °o^ framed for relief against the representatives of the prior 
tenant for life; and an account in it could give nothing. The 
evidence here clearly satisfies me that the respondent has not the 
least intention to cut down any further treed, or pull down any 
other wall. I have evidence of some small damage, for which, 
perhaps, a jury would give one shilling damages ; and, if the peti- 
tioner wish, she can* try her hand in an action, or a civil-bill ; but 
this suit I consider most vexatious ; and I will, accordingly, dismiss 

the petition with costs. 

I^eg. Lib., 26, /. 336. 



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CHANCERY REPORTS. 386 



1860. 
Bamktctf,, jrc 



tfdiirt of Kanktufttp atitr iniBlhtntp^ 

In re JOHN ROBINSON, a Bankrupt. 

Nov. 9, 10. 

This ease came before the Court on a special case stated by con- The adjadica- 
_, - - - - , ... tion in Ire- 

sent. The facts of that case, so far as they are material to the land, bj the 

points decided, are set forth fully in the judgment of the learned s^on ^267 
T»ii/»A Testi the pro- 

•'■^g^- perty of iht 

bankmpt, sita* 
ate in a foreign 

Mr. H. H. Joy and Mr. Jame$ Keman^ for the assignees. S^*«' "» ™ 

^ ® aangnees, so 

This case must be decided with reference to the laws of this f*f ^ the law 



of this connl 



itnr 
cooBtry : HunUr v. PoU$ (a) ; Smith ▼. Bttekanan (b) ; PoUer v, is conoemed. 

Bra^pne^e); Alison ▼. Fumivai(d}; Stoty^ Conftkt of Laws^ NewYork^re- 

a. 331, citing Probyn ▼. Browne; and same book, pp. 90, 91, 94 ^^Jjnextent) 

(ed, of 1866) ; Selkrig v. Bonis (e). Personal property has no ^ "^ ^ 

locality: Story, Conftiei of Laws, ss. 410, 428, notet ^^tten ^' 

A British 

Mr. B. C. Heron and Mr. G. May, for the Northern Banking bankrupt, who 
Company (Uie claimants). mSlns^^of'the 

The judgment of the Court in America, by which these goods fo^ J^^g^^ 

were declared to be the property of the Northern Banking Com- ^^o^^d in 

pany, is not impeached on the ground of fraud It was regularly ^^^?^ ^ ^^ 

obtained in a suit in which the assignees appeared. I do not press bankropt situ- 
ate in that 
the effect of this judgment in America more strongly against the State is, mthi^ 

Conrty answer- 
assignees than as a nonsuit ; but the whole proceeding shows what able for them 

was the proper course for them to take. It -has never been held ees. 

that a judgment properly obtained in another country can be th^^^S^I?** ^^ 

treated by the Courts here as mere waste paper. The proposition ^W°f®* ^ 

(a) 4T.B. 182. (6) 1 East, 6. "^^J" 

(c) 5 East, 123. (rf) I Cr., M, & B. 29«. , 

AraumaU. 
(0 2 Rose, 291 ; S. C. 2 Dow. 280, 260. 

* Coram Lynch, J. 
VOL. 11. 49 



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386 



CHANCEEY REPORTS. 



1860. 
Banktcy^ ^. 

In re 
B0BIN80N. 

Argument. 



that, here, by the bankruptcj all the property of the bankrupt vests 
in his assignees, most be taken subject to the universal rule that 
the right to the possession of goods can only be enforced by an 
action in the country where the goods are situate. Abraham v. 
V. Plestero (a) is a leading case on the subject. The second point 
ruled in this case is that, by the law of New York, the adjudi- 
cation in England does not, even as between the bankrupt and the 
assignees, absolutely pass the property of, the bankrupt situate in 
New York. The effect of the adjudication is merely to give the 
assignees a right to sue for the recovery of the property in New 
York. — [Ltnch, J. How can they have a right to recover the 
property in New York, if the adjudication does not vest it in 
them?]— They might proceed on the statutable act of insolvency. 
On the common principles of international law, the effect of the 
adjudication must be subject to the laws of the country in which 
the goods are situated. — [^See last case, p. 548, and the passage in 
2 Kenfs Commentaries there cited.] — ^If the assignees claim a right 
to these goods, arising out of the proceedings in the Courts here, 
there must be a correlative right arising out of the proceedings in 
the American Courts, and the judgment there must discharge the 
debtor ; otherwise England would be the only country whose judg- 
ments are to be enforced beyond its own shores. If the assignees 
were now to bring an action for these goods, we should plead the 
judgment in America, and notice of it to the assignees. This judg- 
ment is clearly a judgment in rem as against the goods in America : 
Hojfte V. Thompson (b). 

Mr. Jfay, on the same side. 

The proceeding in America commenced as a proceeding inier 
paries^ but ended as a proceeding in rem; and, therefore, although 
personalty has no location, the goods in this case are bound by 
the American judgment: Kennedy v. Casselis(e)i Reimers v. 
Jhuce (d) ; Duchess of Kingston's ease («), where aU the authoritiea 

(a) 8 Wendell Bep., in Snprem6 Court New York, 538. 

(4) 1 Selden Bep. 820 (Appeal Court, N. Y.). 

(0 2 Swan. 826. (<f) 28 Bear. 145. 

(0 2 Sm. L. C. 593. 



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Argtameni. 



CHANCERY REPORTS. 387 

on thia subject are reviewed, and CammeU y. SeweU(a). The 1860. 
assignees copld not sue the Northern Banking Company, either in v.— ^-^-^ 
contract or in tort^ for these goods: De Medina v. Grave (b)^ which robinson. 
shows that this case comes within the exception mentioned by 
Lord Eenyon, in Hunter y. Poit* (c). On the general question, he 
cited Rieardo v. Gareias (d) ; Boyse v. Coklough (e) ; Pennell y. 
LhydCf). 

Mr. Keman^ in reply. 

The question here is as to the effect of bankruptcy on a subject 
of this country residing here ; not as to the rights of a creditor 
who is not a subject of this country, and who does not reside in it. 
The adjudication vests the property absolutely in the assignees, 
as against the creditors of the bankrupt in this realm : Selkrig y. 
Davis {g)\ Hunter y. PotU{h)\ Phillips v. Huntsr{t)\ Sell y. 
Wosmek{h). The question would be entirely different if a creditor, 
a subject of America, and residing there, claimed as the Bank here 
does. As to the situs of personalty. Royal Bank of Scotland 
V. Suin (/). 

As to the American authorities cited, there is no decision come 
to at all in the case in Selden; the Court differed in Hoyte y. 
Thompson^ pp. 382, 341 ; Holmes y. Remnonijn). The other cases 
cited do not in any way touch the question. In conclusion. Counsel 
submitted the following propositions: — 

1. — The judgment in America was not a judgment tn rem, 

2. — That judgment only binds parties to the suit in which it was 
pronounced ; and the asmgnees were no parties. 

3. — The result of the decisions on the point is, that a subject of 
this realm, residing in it, bound by its laws, cannot be listened to 
when he attempts to contravene the laws of this kingdom ; and, 

(a) 3 H. 4 N. 617. (6) 10 Q. B. 152. 

(0 4T.R.182. (<0 12C1.4F.368. 

(«) IK. 4 J. 124. 09 9I>eO.,M.4G. 126. 

(g) 2 Bom, Bank., 291, 815. (A) 4 T. R. 182. 

(0 2H.BL408. (A) 1H.B1.685. 

(QT 1 Bow, 462: (m) 29 Johns. 229 (Bep. in Sup. Court N. T.> 



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388 CHANCERY REPORTS. 

1860. therefore, whatever might be the effect of the adjndicatioii, as 
amncy,, ere, ^^^^^ ^^ American citizen, who claimed theae goods under a 
ROBINSON, judgment of the Americto Courts, the Northern Banking Company 
cannot be justified in so claiming them, contrary to the Bankrupt 
Laws of this kingdom. 

Cur. ad. vuU. 



ArgwmmU. 



Ltnch, J. 
JudgmeM. ^^ this matter, a special case has been stated by and between the 

assignees of the bankrupt and the Northern Banking Company, 
whereby they submit to the judgment of this Court their respective 
rights and claims, arising out of the state of facts set forth in the 
special case. This case has been argued before me at considerable 
length, but not more so than its importance demanded. The lead- 
ing facts of the case lie in a narrow compass, and briefly are : — 
John Robinson the bankrupt, in and prior to 1858, carried on trade 
in Ireknd ; and the Northern Banking Company are an InocMrpo- 
rated Company carrying on their business in Ireland; and they 
were creditors of the bankrupt in respect of a debt contracted in 
Ireland. 

On the 16th of February 1858, John Robinson was adjudged 
bankrupt by this Court ; and such abjudication was duly gazetted 
on the 25th of February 1858 ; and the case states that the North- 
ern Banking Company had notice of the adjudication on the 28th of 
February 1858. The case then states the subsequent surrender of 
the bankrupt, and the choice of assignees. The case states that the 
bankrupt had sent goods to America, to his ton, to be sold on com- 
mission. The case does not state where the goods were at the time 
of the abjudication ; but \ construe it as stating that the goods so 
sent had arrived, and were in America at that date. 

On the 19th of March 1858, the Northern Banking Company 
took proceedings in the Supreme Court of New York, and attached 
the goods in question, then being within the State of New York. 
These proceedings were for the enforcement of the debt of the 
Bank, contracted in Ireland ; and the attachment was a proceeding 
for security to answer the. final judgment of the Supreme Court 
of New York. 



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Judgment, 



CHANCERY REPORTS. 389 

On the Slat of Maroh, a claim of ownership of the goods was I860, 
made to the Sheriff of New York, in consequence of which an 
inqoiry bj a jury took place ; and one of the assignees was exam- 
ined. The case does not state the finding of the jury (if any), nor 
does it in any way show the result of this collateral proceeding ; but 
it appears, in the documents, that the Northern Banking Company 
were compelled to give a bimd of indemnity to the Sheriff; and 
thereupon, notwithstanding such claim, the goods were treated and 
dealt with as the property of the bankrupt I think that the finding 
should have been stated, and that, where a proceeding like this is 
stated at all, the statement should be complete, and not left imper- 
fect as now ; and, as the object of all parties should be to have 
a satisfactory decision on the actual facts, that now an amendment 
should be made, stating the facts. However, I construe the state- 
ment as showing that the decision was in favour of the assignees' 
daim ; as otherwise I cannot understand the statement that the 
Bank were compelled to five an indemnity, or the subsequent pro- 
ceedings in America ftgainst the bankrupt. 

The case goes on to state that the suit by the Northern Banking 
Company proceeded in America ; a plaint was filed in the Court 
there, on the 29th of March, and a plea was put in by the bankrupt 
on the 21st of June, pleading his bankruptcy. Judgment was subse- 
quently entered in that action on the 1 1th of September, and that is 
a judgment for the debt, and an award generally of execution there- 
for. However, on. the 29th of September, there is an order in the 
action, regulating the operation of the execution on the judgment, 
and providing for a special defeasance.* 

It appears that the assignees intervened in that suit in America, by 
petition, on the 18th of September, alleging collusion in the parties 

* NoTS.-^The following is a copj of the order as appended in the schedule to 
the present case : — 
*' At a Special Term of the Supreme Conrt of the State of New York, held in 

and for the City and County of New York, on the 29th day of September 

'* Present, Hon. Henbt £. Davis, Justice. 
"The Northern Banking Company 1 ^ ^^^^^ ^^ ^^^ ^^^^^ ^ 

'^' r notice of motion, and on hearing Mr. 

John Bobinson et aL ^ p^^ for the plaintife, and Mr. Boaid- 

man for the defendants. It is ordered that the plamtifis hare jndgment for the 



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390 CHANCERY REPORTS. 

1860. * to the suit, and praying leave to commence an action, and for a 

Banktcy.t SfC* - .. , . , . . ,. . • , 

* — -, Stay of proceedings, on which petition a conditional order was 

Tn re 

K0BIN80N. gi*&nted by the Court ; affidavits also were filed ; but. on the 28th of 



JudgmekL 



September an order was made for liberty to withdraw said petition, 
and that such withdrawal should be without prejudice to the rights 
of the petitioners. 

Accordingly execution then issued, and on the 4th of October the 
Sheriff sold the goods, and distributed the amount, satisfying the 
judgment and patting i)ver the surplus to the assignees. 

The question now for my consideration is, " Whether the said 
Bank is liable to pay to the assignees the said sum of £791. 
16s. 10^., so received by them, under said proceedings in New 
York, or not ? or thd value of the goods sold at the time of the 
sale, or not ? " 

Now, in deciding this case, the fir^t question that arises is, what 
is the effect and the extent of the assignment effected by the statute 
on the adjudication by this Court ? What property passes thereby 
to the assignees, as far as the bankrupt's chattels are concerned ? 
By section 267 of our Act 20 & 21 Ftc, c 60, all the personal 
estate and effects of the bankrupt, present and future, ** wherever ike 
same may he^ vests in the assignees. " This enactment is without 
limitation or stint, as large and comprehensive as words can announce 
it. I hold that, as far as our laws are concerned, the assignmefht is 
without any limitation whatever ; and, in truth, the very question . 
raised in this case shows that this is the operation of the statute ; for 
the question raised is, whether, by the comity of nations, this vesting, 
pronounced by the Law of England,' is to be recognised in America 
as altering the property in goods there ? I do not think the laws 
of any foreign f^ountry are, in this^ respect, at all regarded by our 
Act ; the property vests in the assignees as their goods by our law. 



amount claimed in the complaint, with the costs of this action, to be entoed, bnt 
to be only enforced against the property attached by the Sheriff of the County 
and City of New York, in this action, and without any personal liability against 
the said defendants, and to be no lien on any property real or personal, other 
than that attached ; and on sale of said property by said Sheriff, it is ordered 
that said judgment be satisfied and cancelled of record." 



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CHANCERY REPORTS. 391 

and, as far as out law can operate, it gives the absolute owner- 1860. 

ship and property in the goods, though in a foreign State, to the .-^^-^* 

assignees. The judgment of Lord Eldon, in Selkrig v. Davis (a), robinson. 
and every other judgment on the point, bears out this primary pro- judoment. 
position ; and in no case is the operation of the laws of any foreign 
State regarded as a limitation introduced into our statutable assign- 
ment ; pur assignment is general and without limit ; our law may 
be incapable of operation in a foreign State, unless our rule of pro- 
perty be there recognised ; but this does not prevent the operation 
of our law, as between the subjects of this realm, working the 
entire assignment of rights. 

But then there arises, in this case, a question as to what is the 
Law of America, or rather the State of New York in America, 
respecting such statutable assignment? Does the Law of New 
York recognise the effect of that assignment as passing the pro- 
perty in chattels situate within the boundaries of that State ? This 
is properly a question of fact, the laws of a foreign State not being 
within our judicial cognisance, and, therefore, their existence neces- 
sarily being a fact to be established in our Courts. On this, as a 
question of fact, I am almost entirely without legal evidence ; but 
both sides have, without objection, cited to me the American author- 
ities, and neither were furnished with any legal evidence to lay 
before me. Had I considered that this was the principal point of 
the case, or that I was required to expound the American Law on 
this subject, I would require legal evidence to be laid before me 
respecting it, and I would not rely on my own research into the 
American authorities, as a proper foundation for a judgment In so 
serious a case. The authorities have been cited to me, and I have 
examined them. Very many conflicting dicta have been relied on 
on both sides ; and the question as to what extent this firiendly State 
adopts, by the comity of nations, our Laws of Bankruptcy, in 
respect of the assignment worked by our laws, seems to me a 
question of considerable interest, and, as to its extent, not well set- 
tled in the American tribunals. That they (or that we, in a 
similar case,) adopt such assignments as being as wide in their 

(a) 2 Rose, 291. 



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392 CHANCERY REPORTS. 

I860. operation there as we have made them, is certainly not true, nor 

. — ^, — Z^ would it be just that it should be so ; the domestic creditor could 

BOBINSON. ^^^ ^ affected hj it without manifest injustice, and every State is 

_"; — authorised to protect its own subjects from the operation of a foreign. 

Judgmtni* 

law made for the protection of the subjects of such foreign State ; 
therefore I think it is certain that our statutable assignment does 
not per se operate as a necessary transfer. But it seems to me 
that the American Law does not treat our assignment as a nullity ; 
some authorities go the length of stating their actual recognition of 
it. Those on the opposite side, while denying the validity of the 
transfer, admit, at the same time, the recognition of the adjudication 
as ascertaining a representative character in the assignees, perhaps 
in the sense of an indefeasible power of attorney from the bank- 
rupt to his assignees. Here, at all events, I find a recognition of 
our assignment, to the extent of recognising the assignees in their 
Courts as parties entitled to exercise rights and claims to the pro- 
perty of the bankrupt. In this case the proceedings in the suit in 
America were referred to as showing that the assignees' title is not 
at all recognised in the Courts there. I confess thai these pn>ceed- 
ings, as set forth in the case, are to me not fully intelligible. The 
plea raised the very question of the operation of our assignment ; 
and if I had before me a demurrer to that plea, allowed by the 
American Court, or the proceedings as to the proof of it, it [head- 
ing a matter of fact, there would be ground fw relying upon it ; but 
at present I do not understand a plea in disehar^e^ and next an 
order for judgment, with a special mode of execution. Unless by > 
the submission of the defendant, I do not see how that judgment 
could have been awarded. But, in these very proceedings, I find 
that, a balance remaining of the goods seized, the Sheriff expressly 
states in hia return that he has handed the surplus to the assignees, 
thereby recognising their claim. 

Without, therefore, in this case, professhig to expound the Law 
of America applicable to our statutable assignment, to this extent^ 
at all events, I think it operates there, viz., that the wsignees have, 
in the American States, a recognised claim to obtain the chattels of 
the bankrupt, and that the Courts there will recognise them as 



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hire 

BOBINSON. 
Judgment, 



CHANCERY REPORTS. 393 

entitled thereto ; whether as being already ia poseession, or onlj as I860, 
having a claim enfordble, I do not now decide. w_>!..^' 

But now how stands the case on this view of the law, as at the 
lowest it is, in America ? A creditor of the bankrupt has notice of 
the bankraptcj, has notice that this property has been assigned to 
answer fiis as well as the other debts ; and in contravention of our 
law, and to the prejudice of the other creditors, he proceeds in a 
foreign tribunal to obtain, according to their local laws, a prefer- 
ence for himself, by anticipating the proceedings of the assignee, in 
collecting the assets. I doubt how far this can be made a question 
of foreign law at all ; if the property passed by our law, and if 
the foreign State would aid in its recovery, at best the foreign law 
enablea the assignee to recover the property of bankl'upts, but it 
alters no property here ; and, after the recovery of it, the property 
is still assets of the bankrupt, and, I think, the party who has re- 
covered it must answer for it here. 

The foreign law was but a means for the creditor obtaining pos- 
session of the property which belonged to the assignees ; aqd the 
manner of obtaining that possession, collaterally to the real title, 
cannot alter the rights of parties in our Courts ; subject, however, 
to the question principally argued before me as to the effect of a 
judgment obtained, as the judgment was in this case, in a foreign 
Court. 

It has been argued that this was a judgment tn rem^ and was the 
decision of a Court of competent jurisdiction on the very question of 
property in these goods. It is not necessary for me here to consider 
what would be (he effect of such a judgment, obtained in a suit in 
which the assignees were not parties, and wherein the parties might, 
by consent between them, enable the Court to pronounce such a 
judgment; for I have the judgment set forth in the case, and that 
judgaient id an ordinary judgment of recovery in a suit inter parUSy 
and awards a general execution to satisfy the judgment ; an ord4»r 
of the Court exists regulating the extent of the execution, and con- 
fining its operation to the goods in question, and making them the 
only subject-matter on wlitch it shall operate. I am not informed, 
by any evidence, how Mils wns pronounced; but it seems to me bus- 
VOL. 11. 60 



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394 CHANCERY REPORTS. 

I860. piciouB in the extreme, in these proceedings, that ihe effect of the 

li y '■ / ' judgment was confined to the taking of the goods of the assignee 

&0BiN80N« (in which, perhaps, the bankrupt felt he had no interest), and 

. " acqnits the bankrupt of all further liability in respect of the 

Judgment. 

debt. I hare said that the proceedings show no explanation of the 

judgment on motion in a contested suit — that it would seem such 

judgment must have been on some consent. But it is, on the point 

just now under consideration, not necessary to rely on any matter 

of this sort, for it seems to me perfectly clear that it is impossible to 

hold this, as is contended for, a judgment in rem. 

It is argued, however, that the assignees had notice of the suit in 
America, and actually 'intervened in the litigation; and that, by 
reason of such notice, and by reason of their intervention, it became 
quasi a judgment tn rem* 

A judgment tn rem is intelligible, and it is easy to understand 
why strangers to the judgment should be bound; but such a quasi 
judgment tn rem^ being effected by notice to a party not recog- 
nised' in the suit, seems to me a proposition requiring very distinct 
authority for its sustainment, and an authority so high as would 
induce me to give up my perception of a very plain absurdity, in 
deference to its admitted weight. None such, nor any at all, has 
been cited for this proposition. But then it is insisted that the 
assignees interfered, and thereby made it in effect a judgment 
tn rem^ or, at all events, bound them by the judgment. This 
contention makes it necessary for us to see how they intervened, 
and to what extent. They first intervened by a claim of property 
on the original seizure ; they pursued that claim until the Bank was 
compelled to indemnify the Sheriff for dealing with this as the 
bankrupt's estate. That was a collateral proceeding ; it made the 
assignees no parties to the suit, and it ended certainly in no 
proceeding adverse to their rights. They subsequently intervened 
by petition, not as parties to the suit, but as third parties injarioosly 
affected by its proceedings ; they made no claim as parties ; they 
nought an injunction to restrain the proceedings until they them* 
selves instituted a suit. It was as strangers to the suit, but affected 
thereby, that they intervened ; and how this* could constitute them 



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CHANCERY REPORTS. 395 

quasi parties in the suit, I am at a loss to see. The intervention 1860. 

in the salt, and then abandoning their claim, is fairly used against w-y — ^ 

them ; but then it appears it was not by consent of parties merely, robinson. 



i)ut by order of the Court itself, that they were allowed to withdraw 
without prejudice to their rights ; and it seems to me impossible even 
fairly to contend that can now have the effect per se of concluding 
their rights. 

Therefore, I an) of opinion that this is not a judgment in retn^ or 
a judgment quasi in rem, having the like validity. However, it is a 
judgment of a Court of competent jurisdiction, and necessarily com- 
manding the respect of our tribunals, and bringing with it the 
sanction of such a decision. Were it a judgment in a suit in which 
the assignees were implicated, it would be a totally different question ; 
but here it is res inter alios acta. The assignees cannot be bound 
by the proceedings in it; and simply as a judgment inter paries it 
cannot affect the claim of the assignees, who were no parties therein. 

Therefore, I hold that there is nothing like estoppel in this case — 
nothing conclusive as a judgment in rem in this case. Is there then 
in the facts stated anything to give this payment in full to this 
particular creditor, in contravention of the rights of all the other 
creditors, a binding and conclusive operation here? This is an 
important question ; the extension of trade with foreign countries, 
the growth of our foreign markets, make this a question of deep 
interest. Every manufacturer, of any extent of trade, has his . 
market in foreign countries as well as at home, and his produce 
is to be found in foreign countries, and this is the legitimate 
carrying on of his trade as a trader here. Well, he becomes 
bankrupt — ^that is, as an honest man he confesses his insolvency, 
and tenders fair justice to all his creditors, in offering to them all 
his property for equitable distribution. Can it be the law that 
any creditor has a right to look out for some foreign nation, in 
whose territory part of the bankrupt's goods may be, and, gaining 
precedence of suit there, to proceed in contravention of the law 
made for his benefit, to gain for himself an unfair and inequitable 
distribution of the assets, in payment in full? The assets will 
admittedly go in a fair course of administration if he do not 



Judgment. 



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896 



CHANCERY REPORTS. 



1860. 
Bmtktcy., 4*9. 

In re 
B0BIN80N. 

Judffmgni, 



intervene. Is it not againsl equity and Justice tliat the creditor 
should so intervene? This admits the law of America to be as 
contended for, and yet, even in that. case, when I get back the 
goods here— in possession, of the creditor so conducting himself — 
I cannot understand that such proceedings, so instituted to defeat 
the purpose of the Bankrupt Law here, and in violation of the 
rights created by it, have the effect of giving this creditor a right 
to hold the goods in violation of our law. 

The fact that he obtained them by the intervention of the laws 
of a foreign State cannot, in my opinion, alter the property as 
established by our laws; and more especially when the very seeking 
of such intervention was in violation of the duties of citizenship here. 
But, though I say this, I by no means admit that th)» American 
law is open to any £ftir objection on this head. I think they 
reoognise the title conferred on our assignees, to the extent that 
justice requires, protecting their own citizens from its unfiair 
operation as £ar as they are concerned, but never intending to 
work it out so as to allow the foreign traders, for whose protection 
the law was made, to make their country a means of working out 
the defeat of their own institutions. 

Perhaps the true ground of decision here is, that this is no ques- 
tion of foreign law at all ; these goods are (or the produce of them is) 
in the hands of the Bank, still the property of the assignees. No suit 
m America or here, against the bukikrupt, can affect the title of the 
assignees-^not as a question of foreign law or domestic law — but by 
the rule that no man can beJ)ound by the aqts of a stranger ; there- 
fore the property is undisplaeed, and is still in the assignees. 

My judgment, therefore, is, that this money, the produce, and as 
I take it the value, of these goods, shall be paid by the Bank to the 
assignees. Perhaps this is not the fuU right for them, consequent upon 
my judgment ; the expense of sale and other matters might be taken 
into consideration, and the value of the goods might be the fair 
measure of damages. However, I think it fairer, on the whole 
circumstances, to take the amount realised as the measure of 
damages ; and certainly, unless pressed on this point by the assignees, 
I shall content myself with awarding this sum to be paid to the 



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CHANCERY REPORTS. 397 

assignees, together with the costs of these proceedings, on this 1860. 

. , • Banhictf., j-c. 
special case. ««-^-v ' 

I think the . Northern Bank acted fairly, and in a mercantile BOBiNSoii. 



view liberally, in submitting this case to the judgment of this 
Court, the tribunal by law established for the adjudication of the 
most Important questions of mercantile law affecting the mercantile 
public, they having, however, as I am glad to feel they have, a 
right of appeal to the tribunal of the last resort upon the questions 
raised. But in submitting, as they have done, to this Court the 
question, I think they have acted in a liberal and commendable 
spirit, saving much expense and much time; and therefore my 
feeling is to make the judgment as light against them as I pos- 
sibly can, and to give the relief only to the extent that, in any 
view upon my judgment of the case in dispute, could be awarded. 



Judgmtnt, 



In re SMITH and ROSS.* 



Dec 16. 



This case came before the Court on charge and discharge. Creditors Statements in 

the title of a 
of the bankrupt, named Lewis, had marked judgment on a bond judgment 

passed by the bankrupt some time before the bankruptcy, and had daTUmay be 

filed a statutable affidavit to register their judgment as a mortgage ; ^^^^nce' 

they filed no supplemental affidavit, pursuant to 21 & 22 Vic.j ^^ ^A^^de! 

c. 105. After the registering of this affidavit the bankrupte lodged scription of Ae 

their title-deeds of the premises sought to Ue affected by the affidavit ^® parties, 

in an affidavit 

with the Northern Banking Company, who claimed on foot of the to xegiater a 

judgment as a 

equitable mortgage thereby created, as against the statutable mort* mortgage, will 

be snffidieBt if 

gage, alleging that the affidavit registering the judgment was defec- it be their 
• «» 1 *» » . . • ordinary trade 

tive. The following is a copy of the affidavit in Question : — residence. 

' The descrip. 

tion most be 
gubstantially contained within the affidavit itself. Snch affidavits need not be oon- 
stmed witb strict grammatical accuracy. — [M^IkweU v. fFAeaf^ commented on 
and distinguished.] 

* Coram Ltmch, J. 



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398 



CHANCERY REPORTS. 




Statement. 



'* Frodarick Henry Lewis and 'WilUam Bobert 
Lewis, of Belfiut, in the County of Antrim, 
trading nnder the firm of F. & W.Lewii, 
Plaintiffl; 
Alexander Smith and John Boss, both of Bel- 
&8t, in the Conner of Antrim, trading 
under the firm of Smith & Boss, 
Defendants; 
And the 13 & 14 Vic, c. 29. 



Frederick Henry Lewis, of 
Belfast, in the county of 
Antrim, merchant, aged 
forty years and upwards, 
one of the plaintiffs in this 
cause, maketh oath and 



saith, that he, this deponent, and one William Robert Lewis, of 
Belfast aforesaid, by the name and description of Frederick William 
Lewis and William Robert Lewis, of Belfast, in the county of 
Antrim, merchants, did, on the 10th day of October 1856, and in 
or as of Trinity Term 1856, obtain a judgment in Her Majesty's 
Court of Common Pleas in Ireland, against the defedants in this 
cause, by the names and description of Alexander Smith and John 
Ross, both of Belfast, in the county of Antrim, builders, for the 
sum of £169. 98., besides £7. 48. lid. costs, as by the records of said 
Court may appear. This deponent further saith that, to the best 
of his knowledge, information and belief, the said Alexander Smith 
and John Ross, the defendants in this cause, were, at the time of 
swearing this affidavit, seised or possessed of, or had disposing 
power, which they might, with the assent of any other person, exer- 
cise for their own benefit, over certain lands, tenements, heredita* 
ments and premises hereinafter mentioned, that is to say (here follows 
the description of the premises). Deponent saith that the sum of 
£165. 66. 8d., for debt and costs, still remains justly due and 
owing to this deponent, over and above all fair and just allowances, 
and that said judgment is stiU in full force and effect at law, and 
not vacated, satisfied, paid off or discharged. 

'^ Frederick H. Lewis." 
(Jurat in usual form.) 

Argwmeni, Mr. Kernan^ for Messrs. Lewis. 

Mr. Heron^ fbr the Northern Banking Company, cited Crosbie 
V. Mu$p^ (a) ; McDowell v. WheaUy (b) ; In re Hams (c). 

(a) 8 Ir. Com. Law Bep. 301. (6) 7 Ir. Com. Law Bep. 562. 

(c) 10 Ir. Chan, Bep. 100. 



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CHANCERY REPORTS. 399 

Lynch, J. ' I860. 

The discharge pat in in this case raises the question whether an >, .^'' ,/* 
affidavit, filed in the caase of Lewi* and another ▼• Smith and Ross^ smith 
to secure a judgment mortgage on the lands of the defendants, the ^"^ boss. 
bankrupts, is sufficient ; or whether, bj reason of its deficiencies, in Judgment, 
not complying with the requirements of the statute 13 & 14 Vie.j 
c« 29, it is not null and void, as creating a charge on the lands 
specified in said affidavit ? and this very serious question, when the 
consequences of the decision are considered, is now necessarily before 
me for adjudication. 

Were this case before me without previous decisions existing, 
perhaps I should have no great difficulty in dealing with it, but it 
is not so circumstanced ; and cases have been cited to me as author* 
ities binding this Court, on the point now raised. Croebie v. 
Murphy (a) is the latest case cited ; but as to it, I find the real 
point there was at a late stage of the proceedings, and was only col- 
laterally raised, and was upon a defect different firom what is alleged 
in this case ; therefore I have no duty cast upon me to consider that 
decision. Another case, and the one principally relied oo, is the 
case of McDowell v. WheaUy (6). That is the decision of the 
Court of Common Pleas — a Court necessarily commanding the very 
highest respect from every one who knows the members of the 
Bench occupying that Court. It would be a presumption in me^ 
indeed, to set up my judgment as questioning theirs ; and I well 
know that any opinion of mine, adverse to theirs, would and ought 
to bear little authority in the legal world ; but still I sit with all the 
responsibilities of a Judge, entrusted by the law with the adjudica* 
tion of great and grave questions for the mercantile public, with 
full jurisdiction to determine such cases ; subject, I am glad to feel, 
as others are, to appeal, but of superior jurisdiction, in determining 
the cases brought before me. Then I say, as to McDowell v. 
TFheaifyy that it is not identical with this case before me. This is 
an affidavit made in a suit, containing in its margin the names, the 
titles, and the residences of the parties ; and the objections in this 
case point more to one of the* plaintifis than to the defendants in the 

(a) 8 Ir. Com. Law Bep. 301. C^) 7 Ir. Com. Law Bq>. 563. 



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400 



CHANCERY REPORTS. 



1860. suit. There are grounds wherein this case is distinguished from 
^ ^f^^*^/ McDowell V. Wh4atfy. I admit they are small grounds of dis- 
8MITH tinction— ^I admit that they are little to be appreciated by the public 
AiiD BOSS, outside of Courts of Justice — but (as I assume) they are distinctions 
Judgment. BuflScient to relieve me from the necessity of further considering 
that case ; and, consequently, I will content myself with adjudging 
this case according to my conscience, and, as far as I am able, 
according to the rules of law, not irrespective of common sense ; 
for, as I said once before, no case has yet ruled that, in construing 
these affidavits, I must lay aside all the promptings of common 
sense. When Mr. Heron produces for me such a case, I will go 
with him to the exposition of such affidavits, taking verbal techni- 
cality and Lindley Murray as my sole guides. I may add, in pass- 
ing, that since I have come to this Court, in almost every case 
where a claim exists on a statutable judgment mortgage, in the 
first instance it has been attempted to discharge it grammatically, 
and pay it off by the rules of syntax ; as yet, these discharges have 
not prevailed here. In my "experience at the Bar I have seen 
Courts, both here and in England, seized, for a time, with a love of 
toinute abstractions different from that used in ordinary life, and 
decisions run in currents founded on such love. Whether a vowel 
could be a Christian-name, and whether a consonant, being in- 
capable of being sounded, could possibly be such, were questions 
on which learned judgments were pronounced. I saw a very 
learned Judge illustrating, as he thought, that a consonant could 
be sounded ; but in that very case, when Chief Justice Black- 
bume was fhmished with all the cases, and was told that 'the 
authorities were all uniform that way, I heard him very wisely 
declare that it was high time to have an authority on the other 
side; and thereupon it passed quietly into forgotten learning. Other 
classes of cases have gone on in like fashion upon technicalities that, 
looked back upon, suprise us ; but love of minute accuracy becomes 
infectious, and rules men's minds for a time, until some Judge, 
impatient of subtlety tending to injustice, follows the course of the 
distinguished Judge I have named, and turns back the decisions to 
common sense. 



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CHANCERY REPORTS. 401 

Id my judgment, to construe this Act with the verbal technicality 1860. 

now demanded at the Bar is to render the statute, instead of being ^^ -7'* » f ' 

, In re 

a means whereby, at a small expense, a specific security might be smith 

obtained, absolutely a trap for the ordinary public, being a means of ^'"^ "^o^. 
depriving a man of his security^ if his attorney happens to be deti- Judgment. 
cient in the rules of English grammar. He may haye honestly 
intended a full compliance with all the requirements of the statute ; 
and the affidavit may in itself show that such was the intention, 
and everything required may be in it in fact ; but some part, by 
grammatical blunder, when examined, may stand only in recital, 
and not in averment— phrases, perhaps, utterly unintelligible to the 
poor man, who thought he had, by the Act of Parliament, a security 
for his debt ; but, there being an undoubted grammatical error, his 
debt is lost, and he goes forth to the world a ruined man. Let me 
not be misunderstood. I do not say that the requirements of the 
statute need not be complied with ; the statute giving the security 
points out the mode of obtaining it ; and it is only in the mode 
pointed out that it can be obtained. A Judge cannot be wiser than 
the law ; he must act under the law ; and, unless he sees the law 
complied with, he cannot uphold the security. The law requires 
that the affidavit shall contain certain specified things, amongst 
them '* the names, and the usual or last known place of abode, and 
the title, trade or profession ^ of the parties. All this, I admit, 
must be in the affidavit itself; for so says the law« But here 
my proposition begins: — How are we to look for the performance 
of these requisites? Is it with a grammatical microscope to find 
out flaws? Is it by construing the statute as saying that these 
requirements must be contained in fitting terms, in moods and 
tenses appropriate, in very words of accurate averment ? Or is 
it, on the contrary, by expounding the law as applicable to the 
learned and unlearned alike, and looking to'see if the affidavit was 
plainly intended to contain all that was required, and by looking to 
see if practically, no matter how unlearnedly, it is in it ; in a man- 
ner, perhaps, not to be parsed by grammar rules, but yet giving: 
to me (the Judge) materials wherefrom to say this information wa-s 
intended? and, learning from itself this intention, I will read it as 

VOL.11. 51 



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402 



CHANCERY REPORTS. 




Judgment, 



there, if I ean. I admit we must not look for aid oatside the 
affidavit. The statements most be within it practically and sub- 
stantially, not literally and grammatically ; so I will then read it 
as there, and read it vi res magii valeai guam pereat: and, 
speaking with the deepest respect for other tribunals, it would seem 
to me a lamentable necessi^ which would compel me to leave men's 
properties at stake while I was weighing grammatically the relative 
pronouns in affidavits honestly made by them to secure those rights, 
on the faith of a public statute. I see no great end of public justice 
to be answered thereby, while I see individual calamity widely 
diffused. Influenced by these principles thus announced by me, 
I have taken up this affidavit, and I have examined it to see if 
it has all the requirements of the statute. I find in it the names 
of the parties, their title or trade, and their residences. A resi- 
dence is given; why am I to suppose it changed? The names 
arQ given ; am I to suppose the names are changed ? Or should 
the affidavit goon to state that their names are still unchanged? 
Admit once this class of criticism, and where can you stop ? It 
will be almost impossible to frame an affidavit to meet the captious 
criticism of ingenious minds ; and in fact, in the end, the learned 
subtlety used to encounter verbal criticism will lead only to new 
traps for flaws. Let these affidavits be read as by men of sense 
and men of the world — a glance will generally show concealments 
and studied phrases intended to withhold information. Take the 
affidavit, and ask this question, would it convey to you the infor- 
mation intended to be given by the statute, so as practically to act 
on it ? and if it does, and if I can so read it, I will not waste my 
brains on subtleties, or hide myself behind grammar rules, but I 
Will expound the affiurs of the world by the rules acted on in 
the world, by the learned as well as the unlearned; and I will 
not strip a man of his property because he mistook the collocat