Fogarty and Others v.O'Donoghue and Others

• Jurisdiction: Ireland
• Court: Supreme Court (Irish Free State)
• Judgment Date: 17 December 1926
• Date: 17 December 1926
• Docket Number: Case No. 76.,(1922. No. 556.)

Supreme Court.

(1922. No. 556.)

Fogarty and Others v. O'Donoghue and Others.

THE MOST REV. MICHAEL FOGARTY, RICHARD MULCAHY, RICHARD HAYES, LIAM T. MacCOSGAIR, and JOHN COLLINS

Plaintiffs

and

DAITHI O'DONOGHUE, EAMON DE VALERA, and STEPHEN M. O'MARA

Defendants

And by Order to Proceed: THE MOST REV. MICHAEL FOGARTY, RICHARD MULCAHY, RICHARD HAYES, LIAM T. MacCOSGAIR, JOHN COLLINS, and EARNAN DE BLAGHD

Plaintiffs

and

Same Defendants

State succession - Revolutionary Government - Funds subscribed to support - Establishment of de facto and de jure Government - Right to funds - Provisional Government - Establishment of Irish Free State - Succession to property - Staying proceedings - Action in foreign country - Lis alibi pendens - Trustee - Unsuccessful appeal - Costs.

Trial of Action.

The plaintiffs' claim in their writ, issued on November 19th, 1922, was for a declaration that 10,000 dollars given by the late Micheal O'Coileain to the defendant, Daithi O'Donoghue, and lodged by him in the Munster and Leinster Bank, Lower Sackville Street, Dublin, constituted part of the funds of DáilÉireann; éireann; an account of all other securities and money received by the defendants from the trustees of Dáil Éireann éireann or the Minister for Finance of Dáil Éireann; éireann; an order for the payment or transfer of same; further and other relief; costs.

The plaintiff, the Most Rev. Michael Fogarty, sued as one of the original trustees of Dáil Éireann éireann, and also as one of the present trustees. The plaintiffs, the Most Rev. Michael Fogarty, Richard Mulcahy, and Richard Hayes, sued as the present trustees of Dáil Éireann éireann. The plaintiff, Liam MacCosgair, sued as Minister for Finance of Dáil Éireann éireann, but, after action brought, Earnan de Blaghd, Minister for Finance of the Irish Free State, was added as plaintiff. The plaintiff, John Collins, sued as personal representative of the late Micheal O'Coileain. The defendants, Eamon de Valera and Stephen M. O'Mara, were sued as original trustees of Dáil Éireann éireann, and because they refused to join the plaintiffs in this action.

The statement of claim set out that:—

"1. By resolution of Dáil Éireann éireann passed on the 26th day of August, 1921, the plaintiff, Most Rev. Michael Fogarty, and the defendants, Eamon de Valera and Stephen M. O'Mara, were appointed trustees of the funds of Dáil Éireann éireann. It was their duty to safeguard and to keep the said funds, and from time to time to make payments thereout to the Minister for Finance, or the acting Minister for Finance, in accordance with a vote or resolution of Dáil Éireann éireann, or in accordance with a vote of the Ministry of Dáil Éireann éireann during such periods as the Dáil should be unable to meet, or a quorum thereof should not be available. It was further part of their duty to present annually or more frequently to the Minister for Finance a complete statement of accounts in connection with the said funds. The said trustees were appointed for one year, but it was a term of the appointment that they might be superseded or changed at any time by a simple resolution of the Dáil.

2. At the date of the said appointment Micheal O'Coileain was Minister for Finance of Dáil Éireann éireann, and he continued as such Minister down to the date of his death hereinafter mentioned.

3. On their appointment as aforesaid the said trustees entered upon the duties of their office, and from time to time received as portion of the said funds considerable sums of money and securities from the Minister for Finance, from the prior trustees of said funds, and other sources.

4. The said trustees appointed the defendant, Daithi O'Donoghue, as their secretary, and as such secretary portion of the said funds came to his hands.

5. On or about the 20th day of September, 1921, the said Micheal O'Coileain, as such Minister for Finance, handed to the said Daithi O'Donoghue, as such secretary as aforesaid, the sum of ten thousand dollars, and received in exchange therefor out of the funds of Dáil Éireann éireann, then under the control of the defendant as such secretary, the equivalent thereof in English money at the then current rate of exchange. The said sum of ten thousand dollars was thereupon put in a parcel by the said defendant and lodged by him in the Munster and Leinster Bank, O'Connell Street, Dublin, for safe keeping.

6. The term of office of the said trustees expired on the 30th day of June, 1922, and by resolution of Dáil Eireann, passed on the 13th day of September, 1922, the plaintiffs, Michael Fogarty, Richard Mulcahy, and Richard Hayes, were appointed new trustees of the said funds.

7. On or about the 22nd August, 1922, the said Micheal O'Coileain died intestate, and letters of administration of his personal estate were, on the 26th September, 1922, granted forth of the principal Probate Registry in Ireland to the plaintiff, John Collins.

8. On or about the 26th August, 1922, the plaintiff, Liam T. MacCosgair, was appointed Minister for Finance of Dáil Éireann éireann in succession to the said Micheal O'Coileain, and he retained such office until on or about the 21st of September, 1923. On or about said last-mentioned date the plaintiff, Earnan de Blaghd, was appointed Minister for Finance, and he still retains such office.

9. The plaintiffs have repeatedly called upon the defendant, Daithi O'Donoghue, to hand over to them the said sum of ten thousand dollars, but he has refused and still refuses to do so, and they have also repeatedly called upon the defendants to account for all moneys and securities."

The plaintiffs claimed:—

1. A declaration that the said sum of ten thousand dollars constitutes part of the funds of Dáil Éireann; éireann;

2. An account of all other securities, moneys, and other property received by the defendants, or any of them, from the prior trustees of Dáil Éireann éireann or from the Minister for Finance of Dáil Éireann éireann, or from any other source or sources for or on behalf of or as representing funds of Dáil Éireann; éireann;

3. An order for the transfer or payment to the plaintiffs of the said securities, moneys, or other property.

4. Further or other relief.

5. Costs.

The defence pleaded by the defendant, Stephen M. O'Mara, stated:—

"1. As to paragraph 1 of the statement of claim, this defendant says that in or about the month of April, 1919, representatives from all parts of Ireland were summoned by persons purporting to act on behalf of an Irish Republic to attend a certain assembly in Dublin. The said assembly, under the name of "Dáil Éireann éireann," by resolution ratified the declaration of the independence of Ireland and of an Irish Republic, and appointed Ministers responsible to the said Dáil Éireann éireann. For the purpose of providing for the safe keeping and disbursement of their funds, the said Dáil Éireann éireann appointed the plaintiff, the Most Rev. Michael Fogarty, the defendant, Eamon de Valera, and one, James O'Mara, trustees of the funds of the said Dáil Éireann éireann, to hold the said funds for the purposes, and upon, and subject to, the trusts and with the powers mentioned and declared in a certain deed, bearing date the 25th day of June, 1919. The said deed was executed by or on behalf of the said trustees, and was also executed on behalf of the said Dáil Éireann éireann by Arthur Griffith, "Acting President for and on behalf of Eamon de Valera, President of the Irish Republic," and by "Michael Collins, Minister of Finance." (1). The terms of the said deed are not fully set forth in the statement of claim, and this defendant craves leave to refer to the original deed when produced by the plaintiffs. The said trustees acted in the trusts, and held the funds of the said Dáil Éireann éireann until the appointment of the 26th day of August, 1921, mentioned in the said first paragraph of the statement of claim. By the said appointment of the 26th day of August, 1921, this defendant was appointed trustee (in substitution for the said James O'Mara) to act jointly with the said Most Rev. Michael Fogarty and Eamon de Valera, two of the original trustees, and hold the said funds upon the trusts aforesaid and not otherwise. The said funds consisted of moneys advanced or subscribed for the purposes of the said Irish Republic and for obtaining the international recognition thereof, and were to a great extent advanced upon the security of Republican bonds signed by the said Eamon de Valera as President of the said Irish Republic. The said trust funds are hereinafter referred to as 'the said Republican Funds.'

2. As to paragraph 2 of the statement of claim, this defendant admits that at the date of the said appointment of the 26th day of August, 1921, Micheal O'Coileain was Minister for Finance of the said Dáil Éireann éireann, but denies that the said Micheal O'Coileain continued to be or to act as Minister for Finance of the said Dáil Éireann éireann down to the date of his death or at any time after the month of June, 1922.

3. This defendant is a stranger to the matters alleged in paragraph 5 of the statement of claim, but says that no part of the sum of ten thousand dollars therein mentioned, or the moneys representing the same, ever came to the hands of this defendant, or was at any time under his control.

4. As to paragraph 6 of the statement of claim, this defendant says that early in the year 1922 the Provisional Government

was formed in accordance with the Articles of Agreement for a Treaty between Great Britain and Ireland annexed to the Irish Free State (Agreement) Act, 1922, and, prior to the 30th day of June, 1922, there was constituted under the pro visions of the said Act a House of Parliament which superseded the Parliament of Southern Ireland, created by the Government of Ireland Act, 1920. The said House of Parliament, although styled and known as Dáil Éireann éireann, was not the Dáil Éireann éireann

...