Hinds v Blacker and Coffey

• Jurisdiction: Ireland
• Judgment Date: 17 April 1878
• Date: 17 April 1878
• Court: Chancery Division (Ireland)

Appeal.

Before BALL, C., and CHRISTIAN and DEASY, L.JJ.

HINDS

and

BLACKER AND COFFEY

Dyson v. MorrisENR 1 Hare, 413.

Jones v. Gibbons 9 Ves. 411.

Adey v. Arnold 2 D. M. & G. 432.

Courtney v. TaylorUNK 6 M. & G. 851.

Isaacson v. HarwoodELR L. R. 3 Ch. App. 225.

Jackson v. North Eastern Railway CompanyELR 7 Ch. D. 573.

Dowling v. FordENR 11 M. & W. 329.

Slim v. CroucherENR 2 Giff. 37; 1 D. F. & Jo. 518.

Wilson v. Lady DunsanyENR 18 Beav. 293.

Dymond v. CroftELR 3 Ch. D. 512.

Marryat v. MarryatENR 28 Beav. 224.

Saunders v. MilsomeELR L. R. 2 Eq. 575.

Harding v. Edgecumbe 28 L. J. (Exch.) 313.

Mortgage of policy of insurance Suit by assignes Personal decree refused Sale of policies, with benefit of mortgagor's covenants Costs.

VOL. L3 CHANCERY DIVISION. 233 HINDS v. BLACKER AND COFFEY (1). Mortgage of policy of insurance-Suit by assignee-Personal decree refused -Sale of policies, with benefit of mortgagor's covenants-Costs. By deed dated in September, 1866, C., reciting a debt due by himself to B., assigned a policy of insurance on his life to B., as a collateral security by way of mortgage, and covenanted for payment of the premiums ; in Ootober, 1867, he gave B. his promissory note at six months for the amount of the debt, and in November B. assigned. to the Plaintiff (who had. paid off the debt) the deed of 1866, the policy on C.'s life, the promissory note, and a policy on B.'s life, but not the debt recited to have been due to him by C.: a bill having been filed in 1876 against B. and C. praying the ordinary relief, C., before answer, served the Plaintiff with notice offering him all the equitable relief to which he was entitled; the cause having, nevertheless, been brought to a hearing, the Vice-Chancellor decided that he had no jurisdiction to pronounce a personal decree against C., and that the Plaintiff; being entitled to no more than was offered him by the notice, should. pay all costs subsequent to its service. The Plaintiff having appealed: Held, that the decision below should be affirmed, with the addition (by conÂÂsent of C.'s counsel) to the clause of the decree directing a sale of the policies, of the words, " together with the benefit of all covenants or other advantages which may be incident thereto " under the deeds of 1866 and 1867. APPEAL by the Plaintiff from a decree of the Vice-Chancellor dated the 18th of April, 1877. The hearing below is reported Ir. R. 11 Eq. 322. The petition of appeal stated that in 1866 the Defendant David Coffey being indebted to his co-Defendant Edward Blacker in the sum of 381 5s., and desiring further time for its repayment, pro posed to Blacker to transfer to him as further and collateral secuÂÂrity a policy of insurance for 400, which Coffey had effected on his own life with the Scottish Provident Institution ; and Blacker so consenting, by deed of the 13th of September, 1866, after reciting the aforesaid agreement, Coffey, in pursuance of it, assigned the policy to Blacker accordingly, and covenanted to pay the premiums during the continuance of the mortgage security. (1) Before BALL, C., and CHRISTIAN and. DEASY, L.JJ. Vol,. I. 8 Appeal. That in October, 1867, Coffey being still unable to pay off the 1878. principal, Blacker applied to the Appellant to advance him the HINDS amount so due by Coffey, and, in order to secure such advance, v. BLACKER. proposed to transfer to the Appellant the debt so due to him by Coffey, and the collateral security which he then held for it, and also to assign to him another policy which Blacker had effected on his own life with the Scottish Amicable Insurance Company for 300. That the Appellant consented to make the advance upon getting, in addition to these collateral securities, Coffey's promisÂÂsory note as an acknowledgment of the amount due by him ; that in November, 1867, Blacker deposited with the Appellant such proÂÂmissory note for 381 5s., dated the 5th of October, 1867, and payÂÂable six months after date, the two policies, and the assignment of September, 1866 ; and by deed of the 16th of November, 1867, after reciting the policies and the assignment of September, 1866, Blacker, in consideration of the 381 5s., transferred the two poÂÂlicies and all his estate and interest in them to the Appellant by way of mortgage to secure the 'advance. Interest was regularly paid to the Appellant by Blacker on the slim so due up to NoÂÂvember, 1874. Blacker failed to pay the gale due in May, 1875, and, he having then become insolvent, the Appellant on the 30th of June wrote to Coffey asking for the half-year's interest due on the promissory note. The petition then set out some corresponÂÂdence and communications which the Appellant had had with Coffey between the months of July and October, 1875, and on which the former relied as an admission by the latter of his liabiÂÂlity. The bill, which was filed on the 31st of January, 1876, was silent as to the deed of the 16th of November, 1867, and prayed that the Defendants Coffey and Blacker should be directed to pay the Plaintiff the amount due for principal and interest in respect of the 381 5s.; that the amount so due should be declared well charged on the two policies ; and that, if necessary, they might be sold. Blacker filed an answer to the bill, but took no further part in the cause. Coffey also filed an answer, but before doing so, his solicitor served the following notice on the Plaintiff, who made no reply to it :- Ton. I.] CHANCERY DIVISION. 235 " Sra,-Take notice that the Defendant David Coffey is willing to admit -*Pod- that the amount of principal and interest due to you by the Defendant Edward 1878. Blacker should be declared to be well charged on the policy effected by Mr. iHINDS Coffey on his own life with the Scottish Provident Institution, dated 3rd July, v. 1866, as well as that on Mr. Blacker's own life, and that the said policy should BIACKER. be sold for the purpose of discharging the amount due to you by the said Edward Blacker ; and as Mr. Coffey admits that right against the policy, but disputes your being entitled to a personal decree against him for your debt, I give you this intimation before any answer is filed by Mr. Coffey. If you, notÂÂwithstanding, compel him to file an answer, and resist your claim at the hearÂÂing, this notice will be used for the purpose of seeking to charge you as against Mr. Coffey with the costs of the answer and all subsequent costs, and I require your answer hereto within one week from the receipt hereof. " ARTHUR CITLLIN, " Solicitor for the said Dem) COITE;, " 53, Lower Dominick-street. " Dated this 23rd day of March, 1876." The answer of the Defendant Coffey to the bill, and his case by way of answer to the petition of appeal, stated in substance as follows : That he never was indebted in any sum of money to Blacker, but that he and Blacker had been on intimate terms of friendship for many years, and that in 1866 he consulted Blacker, who...