Bradshaw v McMullan

• Jurisdiction: Ireland
• Judgment Date: 28 April 1915
• Date: 28 April 1915
• Docket Number: (1915. No. 3834.)
• Court: High Court

Bradshaw

and

McMullan (1).

Appeal.

(1915. No. 3834.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1915.

Practice — Originating Summons in Chancery Division to realize Mortgage — Jurisdiction to make Order for Personal Payment — Subsequent Action in King's Bench Division on Covenant for Payment — Staying Action — Order LV, Rules 7, 11.

Upon an originating summons issued by a mortgagee under Order LV, Rule 7, there is no jurisdiction to make a personal order for payment of the mortgage debt, and therefore if the mortgagee, pending such proceedings, brings an action in the King's Bench Division on the covenant for payment in the mortgage deed, such action will not be stayed.

Williams v. Hunt, [1905] 1 K. B. 512, distinguished.

Appeal by the defendant from an order of the King's Bench Division.

By an indenture dated the 17th December, 1913, the defendant covenanted with the plaintiff to pay to her the sum of £500, being the amount of certain arrears of rent due by the defendant to the plaintiff, together with interest thereon at the rate therein mentioned, and by the same indenture the defendant charged certain leasehold premises with the repayment of the said sura of £500 and interest.

On the 27th May, 1914, the plaintiff issued an originating summons, claiming (1) That it should be declared that the plaintiff was, by virtue of the indenture of the 17th December, 1913, entitled to a good charge in respect of the principal and interest thereby secured on the defendant's interest in the premises comprised in the indenture. (2) That an account should be taken of what was due for principal, interest, and costs, by virtue of the said indenture. (3) That the defendant might be ordered to pay to the plaintiff the amount so found to be due upon the taking of the said account within such time as the Court should direct. (4) A sale of the premises. (5) A receiver. (6) Costs. (7) Further and other relief.

The summons was heard before the Master of the Rolls on the 6th July, 1914, and an order was made declaring that the sura secured by the indenture of charge was well charged on the defendant's interest in the premises set forth in a schedule to the order. It was further ordered that an account should be taken at Chambers of what was due for principal and interest on foot of the indenture of charge, and in default of payment to the plaintiff of the sum certified to be due on the taking of the said account with further interest on the principal sum at the rate of £5 per cent. per annum until date of payment, and the costs thereinafter mentioned, within three months from the date of the Chief Clerk's certificate of the result of the account, the premises should be sold, and an account taken of debts and incumbrances and an enquiry made as to priorities. And the plaintiff was declared entitled to her costs when taxed in the same priority with her demand.

By the Chief Clerk's certificate, filed on the 12th March, 1915, it was found that there was due for principal and interest on foot of the indenture of charge the sum of £445 15s. 8d. for principal, with £42 7s. 10d. for interest, making together the sum of £448 3s. 6d.

The writ of summons in the present action was issued on the 31st March, 1915, claiming to recover the sum of £488 3s. 6d., the amount of principal and interest due under the covenant in the indenture of charge.

The defendant applied to the King's Bench Division (Boyd and Molony JJ.) to stay the action, on the ground that the whole cause of action was the subject of an action pending in the Chancery Division, and that the bringing of the proceedings in the King's Bench Division was an abuse of the process of the Court, oppressive, and improper. The King's Bench Division refused the motion with costs.

Dickie K.C. and James Henry, for the appellant:—

It is well settled that if a mortgagee, who has brought an action in the Chancery Division to realize his security, afterwards brings an action in the King's Bench Division claiming a personal judgment for payment, the latter action will be stayed, inasmuch as a personal order for payment could have been obtained in the first...