Brabazon v Lord Lucan

• Jurisdiction: Ireland
• Judgment Date: 23 December 1846
• Date: 23 December 1846
• Court: Court of Chancery (Ireland)

Chancery.

BRABAZON

and

LORD LUCAN.

Irons v. DouglasUNK 3 Ir. Eq. Rep. 601.

De Havilland v. BowerbankENR 1 Camp. 50.

Rigby v. M'NamaraENR 2 Cox, 420.

Bell v. Free 1 Swanst. 90.

Fludyer v. Cocker 12 Ves. 25.

Powell v. Martyr 8 Ves. 145.

540 CASES IN EQUITY. 1846. Chesser* BRABAZON v. LORD LUCAN. (a) See the case reported Ofdt p. 441. CASES LN EQUITY. 541 representatives, with arrears of rent and fincis!and that it be referred 1844 to the Master to calculate such interest, &c. From this order Sir Ch'Y' William Brabazon's representatives presented a petition of appeal. BRABAEON V. Serj cant Warren, Mr. O'Brien and Mr. Maley, for the appeal. LORD LUCAN. It was admitted there was no authority on the question except Irons v. Douglas (a), where the sum was calculated without interest, Argument. and it was acquiesced in. It was argued that there was nothing in the Act to authorise the giving of interest, and that giving it was inconsistent with sections 156 and 158. On the general doctrines regarding interest, De Havilland v. Bowerbank (b), Rigby v. M'Namara (c), Bell v. Free (d), were referred to. The Solicitor-General (Monahan) and Mr. S. B. Millar, contra. Under the 155th section the mortgagees may have the entire legal estate ; and if they were respondents they would be entitled to interest. It is very unjt that Lord Lucan should be paying inteÂÂrest for this money, and his undertenant have the benefit of it without paying any interest for it ; by the claim he seeks to put nothing whatever in his pocket. The intermediate landlord is not bound before purchasing to communicate with his tenant. Section 152 does not contemplate the landlord compelling the tenant to purÂÂchase until he had completed his own purchase ; and if interest is not allowed, it practically compels the immediate tenant of the church to advance the money in every case without interest for the benefit of his undertenant, as the purchase cannot be completed instantaÂÂneously. Though the statute does not expressly mention interest, the words are sufficiently general to allow its being added in favour of justice. In this case, the difference between Lord Lucan'8 purÂÂchase money and the petitioner's is less than the interest ; and he will therefore be an absolute loser by having purchased. At all events, the Court has jurisdiction to give interest for the period while the parties were actually engaged in litigation ; otherwise, it offers a premium to the tenant for vexatious delay : Fludyer v. Cocker (e) ; Powell v. Martyr (f). The LORD CHANCELLOR (Right Hon. M. Brady). I feel reluctant to deal with this case on my present impression; both because I am unwilling to overrule the decision of the Master Isiesent. (a) 3 Ir. Eq. Rep.601. (6) 1 Camp. 50. (c) 2 Cox, 420. (d) 1 Smoot. 90. (e) 12 Vas. 26. (I) 8 Vas. 148. . 542 CASES IN EQUITY. of the Rolls, and because there is no appeal from my decision, therefore...