Harley v Harley

• Jurisdiction: Ireland
• Judgment Date: 07 November 1860
• Date: 07 November 1860
• Court: Rolls Court (Ireland)

Rolls.

HARLEY

and

HARLEY.

Doe d. Westmoreland v. SmithUNK 1 M. & R. 137.

Palyfair v. MusgroveENR 14 M. & W. 239.

Rex v. DeaneUNK 2 Show. 85.

Taylor v. ColeENR 3 T. R. 295.

York v. TwineENR Cro. Jac. 79.

Doe v. DoustonENR 1 B. & Ald. 230.

Doe v. BrawnENR 5 B. & Ald. 243.

Coleman v. Rawlinson 1 Fos. & Fin. 330.

bullENR 2 T. R. 157.

Blades v. Arundale 1 M. & Sel. 711.

Wilbraham v. Snow 2 Saund. R. 47.

Coleman v. Rawlinson 1 Fos. & F. 330.

Mildway v. SmithENR 2 Saund. 344.

Giles v. GroverENR 9 Bing. 128.

Godson v. SanctuaryENR 4 B. & Ad. 255.

Johnson v. Evans 7 Sco. N. R. 135.

Balls v. ThickUNK 9 Jur. 305.

Hall v. RocheENR 8 T. R. 187.

Housin v. BarronENR 6 T. R. 122.

playfair v. MusgroveENR 14 M. & W. 245.

Doe v. JonesENR 9 M. & w. 372.

Doe v. DoustonENR 1 B. & Ald. 231.

Doe v. BrowneENR 4 B. & Ald. 243.

Coleman v. Rawlinson 1 F. & Fin. 330.

CHANCERY REPORTS. 451 given to show that the claim then admitted was admitted under a mistake. If one of the lives in the indentures of 1803 and 1812 is in being, which, on the evidence, I am to presume is the case, the facts are not altered since the date of the decree pro confesso. I am of opinion that the case of Cremen v. Hawker (a), and the case of Brady v. Fitzgerald (b), do not apply, having regard to the fact that Matthias Phelan, the quasi landlord.in the indenture of the 6th of November 1812, became, by the death of his father intesÂtate, and as his heir-at-law, entitled to the interest of his father, under the said indenture. He was trustee for Parsons Frayne, but at Law he could not sue himself. I think the petitioners are in the same difficulty, and have no remedy at Law ; and having regard to the contract between Parsons Frayne and Matthias Phelan, which was a contract for a rentcharge, although carried out in a very strange manner, I am of opinion that the decision of the Master, which is in accordance with the justice. of the case, is sustainable. The motion will be refused, with costs. (a) 8 Ir. Eq. Rep. 153 and 503. (b) 12 Ir. Eq. Rep. 273. 1861. Rolls. TOBIN REDMOND. Judgment. • HARLEY v. HARLEY. 1860. April 17, July 9, Nov. 7. THE petition was filed for a partnership account of the firm of The defendant in an execu- tion being the Austin Harley and Company, and was referred to Master Brooke, regitstered under the 15th section of the Court of Chancery (Ireland) Regula- prieor ofpro shares in a shi tion Act 1850. The case was now heard on appeal from an order a wwritt of fi. , fa p. was delivered to the Sheriff; and the solicitor for the creditor, by the direction of the Sheriff, procured the certificate of registry from the ship, and delivered it to the Sheriff; who retained it. The Sheriff was registered at the Custom-house, under the Merchant Shipping Act, as the owner of the shares, which were afterwards sold by him and transferred to the purchaser by a bill of sale, which was also registered.-Held, that the seizure was effectual, although the Sheriff did not go on board the ship, and that the proÂperty in the shares was regularly transferred by the bill of sale. 452 • CHANCERY REPORTS. • of the Master, made in this matter, on the 26th of January 1860, by which he declared that the several ships mentioned in the order were not duly or lawfully seized by the Sheriff, and were not duly or lawfully assigned to Edward Scott, the appellant. The facts of the case, as they ultimately appeared, were as folÂlows :-In June 1850, John Harley was a member of the firm of Austin Harley and. Co. He retired from the firm in favour of James John Harley ; and, in consideration of his so retiring, James John Harley executed a bond and warrant of attorney to enter judgment, to John Harley, for the penal sum of £2003. is. lid., on which judgment was entered on the 14th of October 1856. On the 15th of October 1856, a writ of fieri facias, on foot of the judgment, was lodged with the Sheriff of Cork, and the Sheriff was required to seize, under the said writ, the shares of James John Harley in the several ships in question, which were the property of the firm. When the writ of execution was lodged with the Sheriff; none of the ships were in the harbour of Cork. As they successively arrived, the solicitors for the judgment creditors obtained, by the direction and authority of the Sub-sheriff, the certificate of registry of each vessel, and handed it over to the Sub-sheriff. .The Sub-sheriff did not go on board, and make a formal seizure of the shares of James John Harley in the said ships. But he retained the certificates of registry until after the sale, and he then returned them to the other part-owners of the ship. The certificate of registry of one of the vessels, the " Anne," was in the following form:- " CERTIFICATE 01. BRITISH REGISTRY. "This is to certify that, in pursuance of an Act passed in the 8th and 9th years of the reign of Queen Victoria, intituled An Act for the Registration of British Vessels '- " James Austin Harley, merchant, and John Harley, solicitor, having, made and subscribed the declaration required by the said Act, and having declared that they, together with Edward Scott, architect, all of the city of Cork (signal letters K. C. J. P.), are sole owners (in the proportions specified on the back hereof) of the ship or vessel called the Anne' of Cork, which is of the CHANCERY REPORTS. 453 burthen of one hundred and seventy-nine 74-94th tons, and whereof Austin Harley is master ; and that the said ship was built at Hylton, in the county of Durham, in the year 1833, as appears by the former certificate of registry, No. 40, granted at London, 12th of February 1833, now delivered up and cancelled, on a change of property ; and Bryan Adams, tithe-surveyor, having certified to us that the said ship or vessel has, &c. (here followed- a minute descripÂtion of the vessel) ; and the said subscribing owners having conÂsented and agreed to the above description, and having caused sufficient security to be given, as is required by the said Act, the said ship or vessel called the Anne' has been duly registered at the port of Cork. " Certified under our hands, at the Custom-house, in the said port of Cork, this 8th day of December, in the year 1849. " T. CASSELL, Collector. " G. C. HAMILTON, Comptroller.". This certificate had the following indorsements :- "Names of the several Owners within mentioned. Number of sixty-fourth shares held by each Owner. James Austin Harley, Thirty-two 32 John Harley, Sixteen 16 Edward Scott, Sixteen 16 64 " T. CASSELL, Collector. " G. C. HAMILTON, Comptroller." " Custom-house, Cork, Edward Scott, of the city of Cork, architect, 29th of May 1852. has transferred, by bill of sale, dated the 31st of January 1852, sixteen sixty-fourth shares to James Austin Harley, of the city of Cork, and of the firm of Messrs. Austin Harley and Son, coal merchants. Certificate of Registry produced and indorsed this 1st day of October 1852. " T. CASSELL, Collector." " Custom-house, Cork, James Austin Harley, of the city of Cork, 14th of March 1853. coal merchant and ship-owner, has transÂferred, by bill of sale, dated the 12th of March 1853, sixteen sixty-fourth parts or shares, to James John Harley, of the city of Cork, coal merchant. "J. ABBOTT, Collector. " G. C. HAMILTON, Comptroller." 454 CHANCERY REPORTS. " Custom-house, Cork, ) John Harley, of the city of Cork, attorney-at 14th of March 1853. j law, has transferred, by bill of sale, dated the 12th of March 1853, sixteen sixty-fourth parts or shares, to James John Harley, of the city of Cork, coal merchant or ship-owner. "J. ABBOTT, Collector. " G. C. HAILLLTON, Comptroller." The certificates of the other vessels were similar, mutatis mutandis, to the foregoing. After the certificates were handed over to the Sub-sheriff, he produced them to Mr...