Carter v Dickenson

• Jurisdiction: Ireland
• Judgment Date: 30 May 1862
• Date: 30 May 1862
• Court: Rolls Court (Ireland)

Rolls.

CARTER

and

DICKENSON.

Duke of Leinster1 Ir. Rep. 146.

Archbold v. The Commissioners of Charitable Donations 2 H. of L. Cas. 440.

Harrison v. Guest 8 H. of L. Cas. 488.

Holderness v. RankinENRUNK 28 Beav. 180; on appeal, 2 D. F. & J. 258.

Walker v. Taylor Dr. Cas., temp. Nap.

Hale v. The Saloon Omnibus Company 4 Dr. 492.

Shears v. RogersENR 3 B. & Ad. 362.

Barber v. FoxENR 2 Saund. 136; note, by Serjeant Williams.

Clements v. EcclesUNK 11 Ir. Eq. Rep. 229.

Wood v. Dixie 7 Q. B. 892.

Twyne's caseUNK 1 Sm. L. C. 1.

Holbird v. AndersonENR 5 T. R. 235.

Neal v. Day 4 Jur., N. S., 1225.

Corlett v. Radcliffe 4 Law Jour., N. S., 1.

Walker v. Taylor; Bott v. SmithENR 21 Beav 511.

French v. French 6 D., M. & G. 95.

Smith v. Cannon 12 L. & B. 35.

Harres v. LloydENR 6 Beav. 426.

Watt v. Grove 2 Sch. & Lef. 492.

Harrison v. Guest Ubi supra.

Mathews v. FeaverENR 1 Cox, 278.

Roche v. Hassard 5 Ir. Chan. Rep. 14.

Heap v. TongeENR 9 Hare, 90.

Shears v. Rogers 3 B. & Adol. 370.

Barber v. Fox 2 Saund. Rep. 136.

Holderness v. RankinENR 28 Beav. 180.

Persse v. PersseENR 7 Cl. & Fin. 279.

CHANCERY REPORTS. 109 1862. Rolls. CARTER v. DICKENSON. May 9, 10, 13, 30. THE petition was filed by Thomas Shaen Carter, the son and exeÂcutor of William Henry Carter deceased, for an administration of his personal estate, and for an injunction to restrain the respondents Lundy Dickenson and Thomas Alder Cusack, who were simple conÂtract creditors of William Henry Carter, from proceeding in actions at law which they had brought for recovery of their demands. The petition set forth, among other matters, and relied on, a deed of the 21st of January 1859, by which William Henry Carter assigned a box of diamonds, and some other property, to the petitioner. The matter having been referred to Master Litton, under the 15th secÂtion of the Court of Chancery (Ireland) Regulation Act 1850, a question arose before him, as to the validity of the deed of the 21st of January 1859; the respondents contending that the deed was fraudulent and void against creditors, under the statute 10 Car. 1, sess. 2, c. 3 (Ir.), analogous to the 13 Eliz., c. 5 (Eng)., and that, therefore, the diamonds, &c., formed part of the general assets of the petitioner. No cross petition, charge, discharge or affidavit was filed by the respondents, to impeach the deed; but witnesses were examined orally, and a number of letters were proÂduced before the Master, as to the consideration for which it was made; and the Master made a decretal order, of the 7th of April 1862, which contained the following declaration :-" Whereas the question of the right to the said diamonds and property was fully discussed before me by Mr. Berkely, Q. C., and Mr. Crampton, on the part of the petitioner, and Mr. Serjeant Sullivan and Mr. Shaw, on the part of the respondent, and upon reading the deed of the 21st of January 1859, and the passages marked in black ink and in red ink, in the letters which form the brief marked A,' it is hereby declared that the said deed of the 21st of January 1859 was made for good and valuable consideration, and that Thomas 1862. Rolls. CA.RTER. V. DICKENSON. Statement. 110 CHANCERY REPORTS. Shaen Carter, the petitioner in this matter, is, by virtue of said deed, entitled to the said diamonds and other property in said iron box ; and it is hereby ordered and directed, that the Governor and Company of the Bank of Ireland do hand over and transfer to the said Thomas Shaen Carter, the petitioner in this matter, or to his attorney thereto lawfully authorised, the said iron box, diamonds and other property." The respondents appealed. Argument. Mr. Serjeant Sullivan and Mr. C. Shaw, in support of the appeal. Mr. Lloyd, Mr. Berkeley and Mr. George Crampton, contra, conÂtended that the Master had no jurisdiction to go into the question as to the validity of the deed, without a cross petition, or at least without some pleading impeaching and putting in issue the validity of the deed. On this question the following cases were cited :-Myers v. The Duke of Leinster (a); Archbold v. The Commissioners of ChariÂtable Donations (b); Harrison v. Guest (c); Holderness v. RanÂkin (d); Walker v. Taylor (e); Hale v. The Saloon Omnibus Company W ; Shears v.- Rogers (g); Barber v. Fox (h). On the validity of the deed the following cases were cited :ÂClements v. Eccles (i) ; Wood v. Dixie (k); Twyne's case (1); Holbird v. Anderson (m); Neal v. Day (n); Corlett v. RadÂdaft (o) ; Walker v. Taylor ; Bott v. Smith (p) ; French v. French (g); Smith v. Cannon (r) ; Barra v. Lloyd (s); Watt v. (a) 7 Ir. Eq. Rep. 146. (6) 2 H. of L. Cas. 440. (e) 8 H. of L. Cas. 488. (d) 28 Beay. 180 ; on appeal, 2 D. F. & J. 258. (e) Dr. Cas., temp. Nap. (J) 4 Dr. 492. (g) 3 B. & Ad. 362. (h) 2 &rind. 136 ; note, by Serjeant Williams. (i) 11 Ir. Eq. Rep. 229. (h) 7 R 892. (I) 1 Sm. L. C. 1. (m) 5 T. B. 235. (a) 4 Jur., N. S., 1225. (o) 4 Law Jour., N. S., I. (p) 21 Beav 511. (q) 6 D., M. & G. 95. (r) 12 L. & B. 35. (s) 6 Beay. 426. CHANCERY REPORTS. 111 Grove (a); Harrison v. Guest (b) ; Mathews v. Feaver (e); Roche 1862. Roll v. Hassard (d); Heap v. Tonge (e). s. CARTER V. The MASTER OF THE ROLLS. DICKENSON. A motion has been made by the respondents, Lundy Dickenson and T. A. Cusack, Esqrs., by way of appeal from the order of E. Litton, Esq., the Master to whom this cause was referred, under the 15th section of the statute, and which order bears date the 20th of March, and was signed the 7th of April 1862. The petitioner is the executor of his father, William Henry CarÂter deceased; and the petition has been filed for an account of the real and personal estate of the said William Henry Carter, and of his debts, &e. The question raised in the case is, whether a certain deed of assignment, dated the 21st of January 1859, of a box of diamonds, by the said William Henry Carter to his son, the petitioner, was for valuable consideration, and bona fide, or whether the said assignment was fraudulent and void against creditors...