Brady v Fitzgerald

• Jurisdiction: Ireland
• Judgment Date: 16 June 1848
• Date: 16 June 1848
• Court: Court of Chancery (Ireland)

Chancery.

BRADY

and

FITZGERALD.

Stevelly v. MurphyUNK 2 Ir. Eq. Rep. 448.

Bradbury v. Wright Doug. 602.

Bulpit v. ClarkeENR 1 Bos. & Pul. N. R. 56.

Cremen v. JohnsonUNK 9 Ir. Eq. Rep. 143.

Cupit v. JacksonENR 13 Price, 721.

Mankly v. HawkinsUNK 1 Dr. & Wal. 363.

Adair v. New River Company 11 Ves. 429.

Cremen v. HawkesUNK 8 Ir. Eq. Rep. 153, 503.

Havergill v. HareENR Cro. Jac. 510.

Baker v. GostlingENRENR 4 M. & Sc. 539; S. C. 1 Bing. N. C. 19.

Roberts v. Hughes Beat. 417.

Cremen v. HawkesUNK 8 Ir. Eq. Rep. 153, 503.

Holder v. ChamburyENR 3 P. Wms. 255.

Duke of Leeds v. PowelENR 1 Ves. sen. 171.

Webb v. RusselENR 3 T. R. 393.

Kelly v. Clubbe 6 B. M. 335.

Milnes v. BranchENR 5 M. & S. 411.

Executors Kennedy v. Stewart 4 Law Rec. N. S. 160.

Randall v. RigbyENR 4 M. & W. 130.

Fay v. Fay 2 Jo. 350.

Roberts v. Hughes Beatty, 417, see p. 422, &c.

Collet v. Jaques 1 Ch. C. 120.

Eaton College v. Beauchamp 1 Ch. C. 121.

Davy v. Davy 1 Ch. C. 144.

champernoon v. GubbsENR 2 Vern. 382.

Boteler v. Massey 1 Finch, 241.

Duke of Bridgewater v. EdmondsENR 6 Bro. P. C. 368.

North v. StaffordENR 3 P. Wms. 148.

Holder v. ChamburyENR 3 P. Wms. 255.

Benson v. BaldwynENR 1 Atk. 598.

Duke of Leeds v. Powell 1 Ves. 171.

The Duke of Leeds v. the Corporation of New RadnorENR 2 Bro. C. C. 338.

Havergill v. HareENR Cro. Jac. 511, 512.

Rives v. Watson 5 M. & Wel. 255.

AtkynsENR 1 Atk. p. 598.

The Duke of Leeds v. PowellENR 1 Ves. sen. 171.

Stevelly v. MurphyUNK 2 Ir. Eq. Rep. 448.

Fay v. Fay 5 Law Rec. N. S. 198; S. C. 2 Jo. 350.

Stevelly v. MurphyUNK 2 Ir. Eq. Rep. 448.

CASES IN EQUITY. 273 1848. Citaneery. ERADY v. FITZGERALD. Sin WILLtAm. INGOLDSBY being seised in fee of the lands of CastleÂkeale, Knockmurrough, Urline and Cockabunne, in the county of Clare, by indenture of the 24th of July 1725 granted and released, enfeoffed and confirmed them to Samuel Monsell, to hold to him and his heirs and assigns for ever, yielding and paying to the said Sir William Ingoldsby, his heirs and assigns for ever, the yearly rent of £369. 17s. 6d. late Irish currency, by two equal payments, on every 1st day of May and 1st day of November. The deed contained a clause, in the form usual in demises, empowering the grantor, his heirs and assigns, to enter and distrain if the rent were unpaid for thirty-one days ; and, if there should be no sufficient distress, empowering the grantor and his heirs " from time to time to enter on the said lands, and receive and take the rents, issues and profits thereof; until full payment and satisfaction of the said rent and arrears and all costs, charges and damages occasioned by nonÂpayment of the same." There was also a covenant by which Samuel Monsell for himself and his heirs covenanted and granted with and to Sir William Ingoldsby, his heirs and assigns, that Samuel Monsell, his heirs and assigns, should pay the rent upon the gale days. The interest of Sir William Ingoldsby in the rent became vested in the plaintiff; and the interest in the lands under the deed of the 24th of July 1725 became vested in the defendants Sir William Fitzgerald, Charles Fitzgerald a minor, and John Westropp, in certain proportions. The rent was paid for a considerable number of years and up to and for May 1845 by the defendants severally, according to their proportions ; but John Westropp having made default in his share, and the other parties alleging that they were not liable beyond their 35 274 CASES, IV EQUITT. own proportions, the, plaintiff:. ythe prement,-bill;Coua over the entire, alleging that the liability was general:,,.- The bill alleged a confusion of boundaries between some of the lands, including those held by Westropp, against whom thebill was taken as confessed ; and charged that by reason of the antiquity of the grant and the difficulty of tracing down the title to the rent, and to the premises out of which the same issued, the plaintiff wee advised he could not proceed safely by distress or at Law, or in, any other manner than by bill in Equity, and that there were outÂstanding legal terms which might be set up to defeat, his, title at There was however no evidence to establish any of these statement& Mr. Serjeant Warren, Mr. Christian and Mr. J. Ball, for the plaintiff. They contended, first, for the abstract right of a rentcharger to file a bill for a receiver, on the ground of the difficulty -of rieovéring at Law ; and secondly, that the bill, on the facts of the present case, was sustainable. They cited on the first branch Stevelly v. Murphy (a), from which they insisted the present ease was not disÂtinguishable: Hargr. Co. Lit. 143, b, n. 5; Bradbury v. Wright (b), Bulpit v. Clarke (c); Cremen v. Johnson(d); Cupit v. Jackson (e); Manly v. Hawkins (f) ; Adair v. New River Company (g). They submitted that the case of Cremen v. Hawkes (h) was no authority against the present bill, inasmuch as in that case the relation ,of landlord and tenant existed. MT. Brewster and Mr. F. A. Fitzgerald, for Charles FitegaralflZ. They submitted that as against the minor nothing could be assumed, and the case should therefore be decided strictly on the proofs as made against him ; that there was nothing shown by the (a) 2 Ir. Eq. Rep. 448. (b) Doug. 602. , (c) 1 Boa. & nil. N R. 56. (d) 9 Ir. Eq. Rep. 143. (e) 13 Price, 721. ( f) 1 Dr. & 363. (g) 11 Vee. 429. (A) 8 Ir. Eq. Rep. 153, 503. CASES IN EQUITY. 275 plaintiff to fliptive 'him of the remedy 1:T7-distress, -which vould do 1848. Chancery: more complete justice between all parties than could be effected by the present suit, even if maintainable ; that the plaintiff might BRIART v. maintain an ejectment on the condition for entry on the lands in FITZ= OB 13. ease =of non-paythent of the rent : Havergill v. Hare (a); 2 Jar. ITAL Bob-. by Sweet. p. 47 ; or an action ; Baker v. Gostling (b) that Argumeni the' principles on which Cupit v. Jackson and Manly v. Hawkins were decided were not generally acquiesced in as satisfactory by the Profession, and Courts of Equity would be slow to extend them,: Roberts v. Hughes (c); that Cremen v. Hawkes (d) was not the ease of a rent service or a rent seek, and was...