Herbert v Greene

• Jurisdiction: Ireland
• Judgment Date: 13 January 1854
• Date: 13 January 1854
• Court: Rolls Court (Ireland)

Rolls.

HERBERT

and

GREENE.

Bennett v. Briscoe 1 Ir. Chan. Rep. 594.

Corban v. Mountcashell 1 Ir. Chan. Rep. 234.

270 CHANCERY REPORTS. and the payment of the dividends due, or to accrue due on said Government S34 per cent. stock, be discharged: and let the petitioner and respondent respectively' abide their own costs of this motion. Bolls Motion Book, 337, f. 283. 1853. Nov.,4. 1854. HERBERT v. GREENE. Jan. 13. This Court THIS was an appeal from a decretal order of Master Brooke, to will not ap point a re- whom the cause had been referred by the Lord Chancellor, under ceiver in a foreclosure the 15th section of the Court of Chancery (Ireland) Regulation Act, suit, or a suit to raise a 1850. The statements in the petition and the decretal order are charge d arge affec lands, nn- 'fully stated in the judgment of the MASTER OF THE ROLLS. less a year's interest is due, or the property Mr. Harris, in support of the appeal, ,argued that the statute is in danger of being evicted 13 & 14 Vic., c. 429, gave the judgment creditor the same security (e. g., for non payment of as, but no greater than, a mortgagee ; and a mortgagee could not head-rent), or there is reason obtain a receiver unless an arrear of interest was due. The interest to apprehend that it will be given by the statute was analogous to that of an ordinary mortgage. insufficient to pay the It did not resemble a Welch mortgage, which could not be fore charges on it. An absolute closed, nor a tenancy by elegit, which was abolished by the Act : order for a es a in the Coote on Mortgg, p. 75. The Incumbered Estates Act contained sale Incumbered Estates Court will not of itself induce the Court to vary •e rule. But where a judgment creditor, who had registered an affidavit of ownÂÂership, under the 13 & 14 Vic., c. 29, on the same day filed a cause petiÂÂtion, which was referred to the Master, under the 15th section of the Court of Chancery (Ireland) Regulation 'Act, 1850 ; and the Master made a decretal order, appointing a receiver for the payment of the sum due on foot of the judgment : the Court, on appeal, it appearing by affidavit that the lands would be insufficient to pay the judgment, extended the receiver, who had been apÂÂpointed in another matter, but reserved the question of costs, until the produce of a sale which was pending in the Incumbered Estates Court should be ascerÂÂtained. CHANCERY REPORTS. 271 nothing to give the creditor a right to a receiver, in a case where 1853. he had it not before. Rolls. HERBERT V. Mr. F. Fitzgerald and Mr. Exham, in support of the deeretal GREENE. order, argued that, from the schedule of incumbrances in the In- Argument. cumbered Estates Court, it appeared that the fund was a deficient one, which was sufficient ground for the appointment of a receiver. The Act intended to give the judgment creditor an immediate remedy, in substitution of the remedy by elegit, which he could have resorted to before. This was in fact the only remedy which the creditor had, for he was precluded by the 42nd section of the Incumbered Estates Act from seeking a foreclosure and sale : Bennett v. Briscoe (a); Corban v. Mountcashell (b); Coote on Mortgages, p. 553. 1854. The MASTER OF THE ROLLS. Jan. 13. In this case a motion has been made on the part of the respond- Judgment. ent, by way of appeal from the decretal order of William Brooke, Esq., the Master in this matter (which order bears date the 8th of August 1853), that the said decretal order might be varied and set aside, so far as the same has decreed and ordered the appointment of a receiver in this matter, and so far as the Master has referred it to the Receiver-master of the Court to appoint a receiver over the estates of the respondent in this matter, and so far as the said Master has ordered that the receiver so appointed may, upon his entering into security by recognizance, and upon certificate of the due enrolment and registration of said recognizance, be at liberty to act, without any further order ; and so far as it ordered that upon the service of the said decretal order, the said several tenants of the estates of the said respondent should pay their rents to the receiver ; and so far as it is ordered that the said receiver shall from time to time, as he shall find funds applicable thereto, apply the same in payment of the said petitioner's demand, inasmuch as the said Master ought not, to have made any order for the appointÂÂment of a receiver in this matter, no interest having been due on (a) 1 Ir. Chan. Rep. 594. (b) 1 Ir. Chan. Rep. 234. 272 CHANCERY REPORTS. 1854. foot of the judgment debt in the cause petition mentioned, at the time • Rolls. of filing such petition, and there being now no jurisdiction in the HERBERT Court to order the payment of the principal of the said judgment v. GREENE. out of the rents and profits of the said estates of the respondent;. and inasmuch as the Master ought to have refused to make any Judgment. order appointing a receiver in this matter. An order was made in this case by the Lord Chancellor, under the 15th section of the Court of Chancery (Ireland) Regulation Act, 1850...