Irish Equity Reports

V. Dismissal of Bill.

See also, Husband and Wife, 2. PLEADING, II. 7. An irregular replication affecting to join issue with, amongst others, a certain defendant who had appeared but had not answered, though he was only a formal party, not a proceeding in the cause, to save the plaintiff's bill from being dismissed for want of prosecution. R. M'Loughlin v. Reilly 175

8. The Court having continued an injunction to the hearing, on the terms of the plaintiff entering into security by recognizance for mesne rates, made an order, as in the cause, after the bill had been dismissed at the hearing, referring it to the Master to inquire and report the amount which the plaintiff was liable to pay for mesne rates, so as to enable the defendant to obtain an order on the plaintiff to pay the sum due, and in default of payment, to put the recognizance in suit. R. Callaghan v. Callaghan

441

9. Where there is a bonâ fide prosecution of a suit, although five months may have elapsed since a defendant who applies to dismiss the bill has answered, the application to dismiss the bill will be refused with costs. R. Kelinge v. Audley 630 VI. Answer.

See also, INSPECTION, PRODUCTION, & EXECUTION OF DEEDS, 3. 10. If a man enter into a covenant of this nature for payment of a sum of money if he do a particular act, he cannot protect himself from a discovery if he do the act, under the allegation that that discovery will subject him to a forfeiture. Because, after having covenanted to pay money for doing the act, he cannot be heard to say that it is a penalty, in order to protect himself from discovering whether he has done the act: if he choose to do the act, he must pay the stipulated sum. Per Sir E. Sugden, C., in French v. Macale

574

VII. Parties to Suits. 11. The bill, which was for a renewal, stated a conveyance to have been made to one plaintiff in trust for another, and

no evidence of the existence of the trust was given; Held, that it was not a misjoinder to make them co-plaintiffs. C. Butler v. The Earl of Portarlington I

12. I should be very unwilling to decide this case, in which there are important interests and important questions to be considered, upon a point of pleading; and I do not think it is necessary for me to do so. This case is different from Cholmondely v. Clinton (1 T. & R. 104, 116), where a similar objection was made; because there, there was an adverse interest between the two parties who were joined as plaintiffs, one claiming as heir and the other as remainderman; so that if one had a title, the other had not. In The King of Spain v. Machado (4 Russ. 225), there was a total absence of interest in one of the plaintiffs, who was merely an agent; and in the other cases relied on there was an equal absence of interest in one of the plaintiffs. Here, however, the plaintiff Richard, to whom the conveyance was made, declares in the bill that he was but a trustee for the plaintiff James. I think that distinguishes this case from the cases cited, and gives the plaintiff James a sufficient interest to entitle him to join in the suit. Per Sir E. Sugden, C., in ibid

13. Subsequent judgment creditors are, since the recent Act, 3 & 4 Vic. c. 105, proper and necessary parties to a bill for the foreclosure of a prior mortgage, even although their judgments do not attach upon any legal estate. Semble-They were so even before the passing of that Act. C. Rolleston v. Morton 149 14. If there be a specific lien upon the lands, whether prior or subsequent to the plaintiff's demand, the owner of that must be a party in a foreclosure cause. C. Per Pennefather, C. J., in ibid 157 15. In a suit for an account and administration of personal estate of a testatrix, the personal representative of a deceased executor of the testatrix may be properly made a co-defendant with the surviving executor only where it distinctly appears that the deceased executor possessed himself of assets: and from

the statement in the bill that the executors A. and G. both proved the will, &c., but that G., who was dead, alone acted as executor, the Court will not infer that G. possessed himself of assets, so as to justify the plaintiff in making his personal representative a co-defendant with the surviving executor. R. Cocking v. Golding 169

16. J. M. having granted an annuity of £300, charged on all his property, to A. and her assigns for ever, devised his estates upon trust to pay debts, &c.; and as to the residue, to the use of his illegimate daughter E., for life, remainder to K. and his heirs. A. now filed her bill after nineteen years from the testator's death, and shortly after the death. of E., the tenant for life, against K., the remainder-man in possession, the executor and trustee of the will, and the Attorney-General, stating several facts, whereby it appeared that no demand on account of the annuity was ever made upon E.; that during E.'s lifetime A. was ignorant of her rights, and that E. also was ignorant of them.-[It did not appear that E. was ever in receipt of the rents for her own use.]-Further stating that E. was a bastard, and died intestate, unmarried and without issue, and that upon her death all her property vested in the Crown ;-and praying that the arrears of the annuity from the time of testator's death might be raised, &c. Upon demurrer to this bill, Held, that the personal repersentative of E. was not a necessary party. Held also, that supposing her personal estate should have been represented, the Attorney-General should, under the circumstances, in right of the Crown, and without any grant of administration, have sufficiently represented it. R. M'Kiernan v. Kernan

269

17. The Court will never allow a demurrer for want of parties, upon the ground that a person, not before it, may become a necessary party by a litigious defence of some of the defendants. Ibid

18. I have not been able to satisfy myself that there is any proceeding by which the creditor of an intestate bastard

by the Ecclesiastical Court, if the Crown opposed such grant; and even if the law had given such proceeding to a creditor, it would not follow that the plaintiff in this case, who does not allege that she is a creditor of Elizabeth M.Kiernan, could not take it; and I think the Court should hesitate before it would hold that a suit, in which the personal representative of an intestate bastard may in strictness be a necessary, although, perhaps, mere formal party, could not be prosecuted without the presence of such personal representative, there being no satisfactory decision shewing that the plaintiff, in such suit has any power to compel administration to be granted if the Crown resisted it. Per Sir Michael O'Loghlen, M. R., in McKiernan v. Kernan 274, 275

19. It was undoubtedly the practice for many years, in suits relating to the separate property of a married woman, for the husband and wife to sue as co-plaintiffs, where the husband admitted the wife's right, and was willing to join in the suit. Numberless instances of such suits might be cited. In Horan and wife v. Wooloughan (Beat. 1), which was a suit very similar to that instituted by Mr. and Mrs. Farrell, it was held that the husband was entitled to join as coplaintiff with his wife, because, although the suit related exclusively to the wife's separate estate, the husband had an interest in having it secured for her. Such practice, however, after having been questioned from time to time, has of late been altogether discountenanced by several decisions upon demurrer, and also after answer upon the hearing of the cause, when the misjoinder of the coplaintiffs was urged as a ground for dismissing the bill; and it is now settled that in a suit exclusively relating to the separate property of a married woman, the husband cannot be co-plaintiff with his wife, but must be a defendant, and that the wife must sue by her next friend. Per Sir M. O'Loghlen, M. R., in Hackett v. Farrell 519

VIII. Decree.

could compel a grant of administration 20. Enrolment of a decree opened on the

ground of surprise. C. Enright v. Fitzgerald 276

21. There is no ground for giving greater facility to the opening of enrolments here than in England.

Ibid 22. Enrolment of a decree obtained contrary to the terms of the order of 31st of March 1817, opened on that ground. A party moving to set aside proceedings on the ground of irregularity, is not bound to specify in his notice the particular irregularity of which he complains. C. Heron v. Stokes 277

23. An enrolment obtained after the period specified in the order of March 1817, without a special order for the purpose, is irregular. C. Henn v. Bradshaw 278 24. In acting upon that order for the future, the Court will only grant a rule nisi for enrolment. Ibid 25. The defendant not appearing at the hearing, the plaintiff is to take such decree as he can abide by; but the proofs may be entered as read. E. E. Meskill v. Dunworth

681

1. When a man who has a power to charge a jointure when he is in possession of the estate, enters into a contract, during the life of a prior tenant, to execute that power, if he survive the prior tenant so as to acquire the capacity of performing his contract, he is bound by it, and considered in Equity as having executed the power. Per Sir E. Sugden, C., in Allen v. Allen 489, 490

2. A party having a life estate in settled lands with an unlimited power of jointuring, and having the absolute interest in other lands, charges both the settled and the unsettled lands with a jointure, the first payment of which was to be made on the day of his death. Semble

Whether, in case of a lease made by tenant for life having leasing power, the lessee, at best rent without fine, is so far a purchaser as to be entitled in Equity to relief, as against the remainder-man, from a defect in the execution of the power under which the lease was intended to have been made: quære. R. Donnell v. Church 630

Semble-it is questionable that the rule laid down in text books, that Equity will aid a defective execution of a power only in behalf of purchasers for valuable consideration, children, &c., is a sound one.

Ibid

benefit of an agent, he must also bear the burden of being bound by the acts of that agent. If Power in this case had paid the fine and obtained the renewal, his principals would clearly have been entitled to the benefit of it, and the default of Power must equally operate to their prejudice. Per Sir E. Sugden, C., in Butler v. The Earl of Portarlington

2. The rule (as to purchases by an agent from his principal) is a very simple one,

that a man cannot serve two masters at once, and that if you undertake to act for me, you must confine yourself to that duty, and you cannot be permitted, in the discharge of that duty, to endeavour to serve yourself. Per Sir E. Sugden, C., in Lawless v. Mansfield 137

3. It appears that a person named James O'Meara was for many years the person actively concerned in the management of these lands; and it became a matter of discussion in this cause (the bill was filed for a renewal), how far Going was or was not to be dealt with, as if this were the suit of James O'Meara; and during the argument, the Court threw out an opinion that this case must be dealt with as if it were the suit of James O'Meara ; in other words, that Going must be considered as bound by all the acts and dealings of J. O'Meara, and cannot now repudiate him and his acts, and say that nothing has been done by the landlord to affect his (Going's) right to a renewal ;-inasmuch as he claims the benefit of O'Meara's acts in other respects, and suffered him for many years to have the uncontrolled management of the lands, and to hold himself out to the world in general, and to Mr. Burnett in particular, as the owner of the lessee's interest in the lands. The Court continues to be of the same opinion, that this must be considered as the suit of James O'Meara, and dealt with accordingly. Per Brady, C. B., in M'Donnell y. Burnett 4. Now, can I suffer a trustee and agent taking a lease of this description from a tenant for life, with a perfect knowledge of his being but tenant for life, to come into Court and say that he obtained a

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lease from that tenant for life, not for his own life, but for sixty-one years, and to ask the Court to extend its protection to a lease so acquired? It was fraudulent in him to have taken such a lease, not merely from the characters which he filled, but because it is fraud in any man dealing with a person having but a limited interest in a property, with full knowledge of the limited nature of that interest, to take from such a person a lease for an absolute term extending beyond that interest. But when we look at the characters this gentleman filled, his conduct appears more than mere equitable fraud, it was directly fraudulent. At the same time I would observe, that I do not put it on the ground of his character of agent, because the case of Lord Selsey v. Rhoades (2 S. & St. 49), shews that a man may, if he please, give a beneficial lease to his steward or agent, but that the latter is bound to shew that his principal had all the knowledge which it was his duty to have communicated, and that the transaction was perfectly fair. But I put it on the ground of a receiver and agent obtaining from his principal, whom he knew to be but tenant for life, a lease for a term extending beyond his own life, which he had no power to grant. It is impossible for this Court, without deserting its duty, to allow a man who has acted so, to remove a legal bar, in order to sustain an interest thus acquired and founded in fraud, and the Court never will cover such an interest with its protection. Per Sir E. Sugden, C., in Ker v. Lord Dungannon 356, 357

PUBLIC POLICY. See AGREEMEnt, 6.

PURCHASER FOR VALUABLE
CONSIDERATION.
See POWERS, 3, 4.

RECEIVER.

Books

Irish Equity Reports, Volume 4