Fitzgerald v McCowan

• Jurisdiction: Ireland
• Judgment Date: 27 January 1897
• Date: 27 January 1897
• Court: Queen's Bench Division (Ireland)

Fitzgerald

and

M'Cowan and Others (1).

Q. B. Div.

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1898.

Principal and surety — Co-sureties — Contribution — Non-execution of instrument by one of several co-sureties — Discharge — Baronial guarantee counter-security for — Relief of Distress (Ireland) Acts, 1880, 1881 (43 Vict. c. 4; 43 & 44 Vict. c. 14; 43 & 44 Vict. c. 44).

Under the Relief of Distress (Ireland) Acts, 1880 and 1881, the Commissioners of Public Works agreed to advance £95,000 to certain Harbour Commissioners in county Kerry on repayment with interest being guaranteed by five baronies of the county. As a counter security, under said Acts, seven persons signed an agreement, dated 20th September, 1881, that, if the baronial guarantee was given, they would enter into a deed of covenant jointly and severally with the Secretary of the Grand Jury, acting under these Acts, in such manner as the extraordinary Presentment Sessions (to be convened under said Acts by the Lord Lieutenant) should require, to pay, in relief of four of these five baronies, one-nineteenth of every sum which the five

baronies might be called upon to pay, so as to indemnify the four baronies to that extent. This document was submitted to, and approved of, by the Sessions, the guarantee given, and the advance made. It was then handed by the Solicitor for the Harbour Commissioners to the solicitor for the Secretary of the Grand Jury (the plaintiff) in order that the latter might have the deed of covenant perfected. The plaintiff's solicitor, when the draft was ready, gave notice to the signatories that it was ready for their approval; receiving no reply, he engrossed the draft and sent it, on the 9th March, 1883, to the solicitor for the Harbour Commissioners, requesting him to get it executed. The deed of covenant was subsequently executed, as of the 9th March, 1883, by all the signatories to the agreement of 1881, except H. H. had left Ireland in April, 1882, and had been resident abroad until July, 1894. During this time he had not been required, nor had any steps been taken to compel him, to execute the deed. Meanwhile, as instalments of the baronial guarantee were from time to time called for, the plaintiff applied to the six persons by whom the deed had been executed (the defendants) for payment of one-sixth each of the one-nineteenth of such instalments, and was paid these amounts by them. They knew that H. was out of the country; that he had been and was in embarrassed circumstances; but were unaware that he had not executed the deed. In March, 1894, the plaintiff informed one of the defendants that one of the sureties had not executed the deed. Thereupon the six defendants repudiated liability. In July, 1894, H. returned to Ireland; and, in August of that year, the plaintiff's solicitor wrote asking him to execute the deed. H. refused. The plaintiff now brought this action, on the deed of covenant of 1883, against the six defendants who had signed same, to recover the full one-nineteenth of certain moneys the baronies had been obliged to pay on foot of their guarantee. Verdict, by direction, and judgment having been entered at the trial for the plaintiff, the defendants now moved to have same set aside and judgment entered for them:—

Held, that the defendants had signed the deed of 1883 on the faith that it should be executed by all the seven parties to the agreement of 1881; that it lay on the plaintiff to obtain the execution of same by the parties thereto; that H.'s known insolvency at the time did not render execution of the deed by him immaterial; that there was no evidence of waiver of their rights by the defendants, or of acquiescence in the non-execution of the deed by H.; and that the action was therefore unsustainable.

Evans v. Bremridge (2 K. & J. 174; 8 D. M. & G. 101) followed.

In addition to the authorities mentioned in the judgments, reference was made during the argument to Mayor of Durham v. Fowler (1); Underhill v. Norwood (2); Bonsor v. Cox (3); Barry v. Morony (4).

New Trial Motion. Under the provisions of the Relief of Distress (Ireland) Acts, 1880, and 1881 (43 Vict. c. 4; 43 & 44 Vict. c. 14; 43 & 44 Vict. c. 44), the Commissioners of Public Works agreed to advance £95,000 to the Tralee and Feenit Pier and and Harbour Commissioners, on the repayment with interest being guaranteed by five baronies of the county Kerry. As a counter security, pursuant to these statutes, seven persons signed an agreement, dated the 28th September, 1881, to be submitted to the extraordinary presentment sessions convened for the five baronies by order of the Lord Lieutenant, that, in the event of the baronial guarantee being given, they would enter into a deed of covenant jointly and severally with the secretary of the Grand Jury (who was constituted a corporation sole for the purposes of the said Acts), in such manner as the presentment sessions should require, to pay, in relief of four out of the five baronies, one-nineteenth of every sum which the five baronies should be called upon to pay, so as to indemnify these four baronies to that extent. This agreement was submitted to, and approved of by the sessions, the baronial guarantee given, and the money advanced by the Commissioners of Public Works. It was then handed by the solicitor for the Harbour Board to the solicitor for the secretary of the Grand Jury (the plaintiff), in order that the latter might perfect the security. On the 15th December, 1882, the plaintiff's solicitor wrote to the seven subscribing parties to the agreement, stating that the draft deed of covenant was ready for their approval. It did not appear that he received any answer, and, on the 9th of March, 1883, the plaintiff's solicitor, having engrossed the draft, sent it to the solicitor for the Harbour Board, requesting him to have it executed. The deed of covenant (which bears date the 9th March, 1883), was subsequently executed by all the signatories to the agreement save one, Mr. Herbert. Mr. Herbert had left Ireland in April, 1882, and had been resident abroad until July, 1894. During this time he had not been required to execute the deed, nor had any step been taken to compel him to do so. Meanwhile, as instalments of the baronial guarantee were called for from time to time, the plaintiff applied to the six persons by whom the deed of 1883 had been executed for payment of one-sixth each of the one-nineteenth of such instalments, and was paid these amounts by them. They knew that Mr. Herbert was out of the country; that he was in embarrassed circumstances; but did not know that he had not executed the deed of covenant. In March, 1894, the plaintiff informed one of them that one of the sureties would not pay, and subsequently produced the deed, showing that it had not been signed by Mr. Herbert. Thereupon the six signatories repudiated liability. In July, 1894, Mr. Herbert returned to Ireland, and in August of that year the plaintiff's solicitor wrote to him asking him to execute the deed. He refused. The plaintiff now brought this action, on the deed of covenant of 1883, against the five survivors of the six persons by whom the deed had been executed, and against the executor of the sixth, to recover the full one-nineteenth of certain of the instalments which the baronies had been obliged to pay under their guarantee. The statement of claim alleged that the deed of 1883 had been executed by the six signatories with the full knowledge that Mr. Herbert had not executed, and would not execute same, and with the further knowledge that, owing to his pecuniary circumstances his execution thereof would be useless and worthless to them, and that they had waived the execution thereof by him. The defendants pleaded that the instrument had been executed upon the faith, and in the belief, and upon the condition, that same would be executed by Mr. Herbert. They further counterclaimed for a return of the amounts theretofore paid under mistake of fact. The only question left at the trial to the jury was, whether Herbert was solvent in 1883, and since? To which the jury answered, No. The learned Judge who tried the case (Mr. Justice O'Brien), having directed a verdict, and given judgment for the plaintiff for the amount claimed, the defendants now moved that the verdict and judgment, so entered in the original action, should be set aside, and verdict and judgment entered for the defendants, the counterclaim being abandoned.

Cur. adv. vult.

Matthew J. Bourke, Q.C., and Seymour Bushe, Q.C. (J. B. Sandford with them), for the defendants.

G. Wright, Q.C., and R. E. Meredith, Q.C. (Morphy with them), for the plaintiffs.

Johnson, J. (1):—

This is a motion to set aside the judgment for the plaintiff, and enter judgment for the defendants. The facts involved in the present case range over a period of at least thirteen years. In 1881, the Board of Works agreed to lend £95,000 to the Tralee and Feenit Pier and Harbour Commissioners on repayment with interest being guaranteed, pursuant to the provisions of the Relief of Distress Act, 1881, by five specified baronies of the county of Kerry; and the Lord Lieutenant convened extraordinary presentment sessions under the Act for each barony to consider an application by the Commissioners for such guarantee. The Act authorised the Sessions to “agree” with the Commissioners “as to the mode in which they should repay or secure to the barony any sums paid by the barony on account of the loan with interest”; and, as the extraordinary presentment sessions would cease to exist when the purpose for which they were called into existence was accomplished, the Act further provided that “such security may be taken on behalf of the barony by the secretary of the Grand Jury,” who with his successors in...