Hone v O'Flahertie

• Jurisdiction: Ireland
• Judgment Date: 17 January 1859
• Date: 17 January 1859
• Court: High Court of Chancery (Ireland)

Chancery.

HONE

and

O'FLAHERTIE.

Barton v. Hunter 1 H. & Br. 569.

Bosanquet v. RainsfordENR 11 Ad. & El. 520.

Carroll v. ScullyUNK 7 Ir. Ch. Rep. 239.

Bromley v. Holland 7 Ves. 16

Hayward v. Dimsdale 17 Ves. 112.

Colchester v. Lowton 1 Ves. & B. 244.

O'Flahertie v. M'Dowell 6 H. L. Cas. 142.

Colman v. Sarrell 1 Ves. jun. 50.

Ware v. Horwood 14 Ves. 28.

St. John v. St. John 11 Ves. 535.

Jackman v. Mitchell 13 Ves. 581.

Stuart v. CottinghamUNK 6 Ir. Eq. Rep. 248.

Harris v. Royal British Bank 2 H. & Nor. 535

Underhill v. DevereuxENR 2 Saund. 72t, and p. 6.

Stewart v. GravesENR 10 M. & W. 711.

Barker v. ButtressENR 7 Beav. 142.

Harris v. Royal British Bank 2 H. & Nor. 535.

Carroll v. ScullyUNK 7 Ir. Ch. Rep. 239

Harris v. Royal British Bank 2 H. & Nor. 535.

Harris v. British Bank 2 H. & Nor. 535.

Davis v. The Duke of Marlborough 2 Swan. 157.

Hayward v. Dimsdale 17 Ves. 112.

CHANCERY REPORTS. 119 1859. Chancery. HONE v. O'FLAHERTIE. (In Chancery.) Jan. 17. Iiv the year 1847, the petitioner, Mr. Thomas Hone, was a member Acreditorhav ing obtained a of the Tipperary Bank ; and his name appeared as such in the judgment against mtahne. return lodged at the Stamp-office, between the 25th of March 1846 gf and the 25th of March 1847 ; but afterwards, by a deed dated the ger o 21st of October 1847, made between thepetitioner, of the first partn, pang arnegis James Sadleir, one of the public officers, and a director of the Bank, davit of the judgment of the second part, and Thomas Edwards, of the third part, the against the real estate of petitioner assigned to Thomas Edwards all his shares in the Bank. a former share holder in the This deed was executed by James Sadleir, one of the directors, and Company, without having it was, on the 2nd of November 1847, registered in the share issued a score against register book of the Bank, and the name of Thomas Edwards was fhhams ag of on the same day entered in the said book as proprietor of the that a Court Equity ought shares. The name of Mr. Hone did not appear as a shareholder to give relief against such -in any of the subsequent returns lodged at the Stamp-office, and registration of the affidavit, the name of Mr. Edwards did appear as a shareholder in all as being a cloud on the subsequent returns down to the 25th of March 1855, which was shareholder's title to his the date of the last return lodged at the Stamp-office by the Com- lands. pany. Statement The Tipperary Bank having stopped payment in 1856, an order for winding it up was made, and Mr. George M'Dowell appointed official manager ; and the respondent, on the 1st day of August 1857, obtained against Mr. M'Dowell, in that capacity, a judgment, in the Court of Exchequer, for the sum 2180. 14s. 5d. On the same day, Mr. O'Flahertie made and filed an affidavit, stating the recovery of the said judgment against Mr. M'Dowell, as official manager of the Society of Bankers, exceeding six in number, lately carrying on the trade or business of bankers in Ireland, called the Tipperary Joint-stock Bank, and " That the said Society caused a 120 CHANCERY REPORTS. return of the names of the partners of the said Society to be lodged at the Stamp-office aforesaid, in the year 1847, in which, amongst others, the name of Thomas Hone, stock-broker, Dublin, is inserted as one of the partners in the said Society, pursuant to the said Act; and that no return of any transfer or transfers of any share or shares in the said Company by the said Thomas Hone, as required by the statutes in that behalf provided, has or have, since the making of the first-mentioned return, been registered or lodged at the Stamp-office aforesaid, as deponent is informed and believes: by means whereof the said Thomas Hone was, at the time of the making of the said first-mentioned return, and from thence hitherto continued to be, and is, and was, at the time of the obtaining of the said judgment, a member of the said Society." The affidavit then stated certain lands of which Mr. Hone was seised. A copy of this affidavit was on the same day registered, according to the provisions of the 13 & 14 Vic., c. 29. The name of the petitioner had been submitted to the Master in the winding-up matter, and by him struck out of the list of contributories. No scire facias on the judgment had ever been issued against Mr. Hone. The petition in this matter was filed, stating the above matters, and praying a declaration that the registration of the affidavit did not operate to transfer to the respondent any of the lands menÂÂtioned in it ; and for an injunction to restrain proceedings on the judgment against the petitioner, and that the respondent might be directed to release or reconvey the lands. Mr. Serjeant Deasy and Mr. Brewster, for the petitioner. Argument. The judgment in no way affected Mr. Hone, and could not do so even if he had been a member of the Company, until he was made a party to the record, which could only be done by scire facias : Barton v. Hunter (a), which is an authority on this point, though decided with respect to a Private Act, before the Banking Act: Bosanquet v. Rainsford (b). Carroll v. Scully (c) is quite unlike (a) 1 & Br. 569. (b) 11 Ad. & El. 520. (c) 7 Ir. Ch. Rep. 239. CHANCERY REPORTS. 121 this case ; for there the party whose estate was to be charged 1859. had been made a party to the record by scire facias, and was, Chancery therefore, liable for the amount, but the judgment here only bound HONE v. the official manager. O'FLAHER- It is true that the petitioner may be able to defend an ejectment TIE. successfully, but that will not prevent a Court of Equity from in- Argument. terposing to get rid of this cloud on his title : Bromley v. HolÂÂland (a) ; Hayward v. Dimsdale (b) ; Colchester v. Lowton (a). This Court is the only tribunal which can grant efficient relief to the petitioner ; for though the Court of Law can deal with its own records, it cannot with the copy of the affidavit deposited in the Registry-office. The long series of cases ending with O'Flahertie v. M'DowÂÂell (d) shows that the creditor of a Company can only recover from the members by proceeding according to the statutory code relating to Joint-stock Companies. Mr. Lawson and Mr. William Smith, for the respondent. If the respondent have not a right to recover his debt from the petitioner's estate, the petitioner will have a full opportunity of making his defence in any ejectment which...