Burke v O'Connor

• Jurisdiction: Ireland
• Judgment Date: 03 November 1855
• Date: 03 November 1855
• Court: Rolls Court (Ireland)

Rolls.

BURKE

and

O'CONNOR.

Lord Trimleston v. Hamil 1 Ball & 385.

Biscoe v. Perkins 1 Ves. & B. 485.

Detillen v. Gale 7 Ves. 583.

Loftus v. Swift 2 Sch. & Lef. 657.

Vez v. Emory 5 Ves. 141.

Ex parte MureENR 2 Cox, 63.

Williams v. PriceENR 2 Sim. & St. 581.

Dryden v. Frost 3 M. & Cr. 670.

Pears v. CeeleyENR 15 Beav, 209.

Ellison v. WrightENR 3 Russ. 458.

Thornton v. Court 3 De Gex, M'N. & Gor. 293.

Oxenham v. EllisENR 18 Beav. 593.

418 CHANCERY REPORTS. , T853. Rolls. May 9. 1855. May 22. Nov. 3. BURKE v. O'CONNOR. CHANCERY REPORTS'. 419 of /the abortive action, and did not charge him with the sum of 77. 6s. 2d., the rent for which the action was brought. An appeal against the decree was originally moved on the 9th of May 1853, when an action was directed to be brought for the rent. The petitioner having declined to give an indemnity against costs or to proceed with the action, though several applications were made to compel him to do so, the appeal motion was now (May 29) renewed. The question argued was, whether the respondent was properly chargeable with the said two sums ? The mortgage deed and proceedÂÂings in the action are stated more fully in his Honour's judgment. Mr. Martley and Mr. Deasy, for the petitioner. Mr. Lefroy and Mr. Ball, for the respondent A. O'Connor. The following cases were cited :---Lord Trimleston v. Hamil (a) ; Biscoe v. Perkins (b) ; Detillen v. Gale (e) ; Loftus v. Swift (d) ; Vez v. Emory (e) ; Ex parte Mure (f) ; Williams v. Price (g); Dryden v. Frost (h); Hill on Trustees, p. 576. The MASTER OF THE ROLLS. A motion was made in this case on the part of the respondent Arthur O'Connor, to renew the motion of the 1st of February 1855, standing over in pursuance of the order of the 14th of February 1855 ; and that so much of the order of E. Litton, Esq., the Master in this cause, as declared the respondent Arthur O'Connor entitled to credit for the sum of 97. 13s. 10d., and that he was not chargeable with the sum of 77. 6s. 2d., be confirmed, and that the petitioner should be directed to pay the respondent Arthur O'Connor the costs of the orders of the 9th of May 1853, and of the 7th of February 1854, and of the proceedings thereunder, and the costs of the motion of the 1st of February 1855, and of the present motion. (a) 1 Ball & B. 385. (b) 1 Yes. & B. 485. (c) 7 Ves..583. (d) 2 Sek. & Lef. 657. (e) 5 Ves. 141. ( f) 2 Cox, 63. (g) 2 Sim. & St. 581. (h) 3 M. & Cr. 670. 420 CHANCERY REPORTS. The cause petition in this case was filed to charge the respondent Arthur O'Connor (who was in possession as mortgagee, under a certain deed in the nature of a Welsh mortgage) for the sums- which he had received, or without wilful default might have received out of the mortgaged premises. The petition having been referred to the Master, under the 15th section of the statute, he made a decretal order, bearing date the 25th of February 1853, ascertaining the sums with which the said Arthur O'Connor should be charged, and the credits to which he was entitled. A motion was made by way of appeal from the order of the Master, on the 9th of May 1853, on the ground that he had omitted to charge the said Arthur O'Connor with certain sums therein mentioned, and also on the ground that credits were given to him which he was not entitled to. I made an order on that day, deciding against the appellant, except as to the two sums in the present notice of motion mentioned. The facts of the case in relation to these 'two sums appear to be as follow : The mortgage bears date the 4th of July 1844, and was executed between the petitioner and Henry Burke, his eldest son, of the first part ; Arthur O'Connor, one of the respondents, of the second part ; and Mathew O'Connor, the other respondent, of the third part. It recited that the petitioner was seised for life, with remainder to his son Henry Burke, of the lands of Farrankelly, in the county of Roscommon, in the occupation of one Edward Byrne, producing the annual rent of 48. 8s. 6d., and that Henry Burke, being indebted to Arthur O'Connor in the sum of 249. 2s. 8d., on foot of a judgÂÂment in the deed mentioned, had proposed to secure the said sum by the rents of the said lands ; and after such recital it was witnessed that the said John Burke and Henry Burke granted to the said Arthur O'Connor, his executors, &c., an annuity of 48. 8s. 6d., charged on the said...