Howard v Howard

• Jurisdiction: Ireland
• Judgment Date: 27 February 1892
• Date: 27 February 1892
• Court: Queen's Bench Division (Ireland)

Q. B. Div.

Before HARRISON, O'BRIEN, and HOLMES, JJ.

HOWARD

and

HOWARD

O'connor v. Sierra Nevada Co.ENR 24 Beav. 435.

Mathews v. ChichesterENR 30 Beav. 135.

Ross v. GreenENR 10 Ex. 891.

Place v. campbell 6D. & L. 113.

Palmer v. Lord Ashbrook 4 Ir. Jur.(O. S.) 193.

Eyre v. BaldwinUNK 4 Ir. C. L. R. 270.

Wetenberg v. MortimoreELR L. R. 10 C. P. 438.

Roberts v. ChaytorELR 4 Q. B. Div. 453.

Woodley v. WoodleyUNK 3 Ir. L. R. 86.

Gledhill v. Hunter 14 Ch. Div. 492.

Hurst v. Hurst 21 Ch. Div. 278.

Lloyd v. Johnes 9 Ves. 37.

Hills v. SpringettELR L. R. 5 EQ. 123.

Creswell v. Bateman 6 W. R. 220.

Stanhope v. StanhopeELR 11 P. D. 103.

Boynton v. BoyntonELR 4 App. Cas. 723.

Edwards v. LowtherUNK 45 L. J. C. P. 417.

Chorlton v. Dickie 13 Ch. Div. 160.

Van Gelder Assurance v. Sowerby Flour Society 44 Ch. Div. 374.

Watts v. WattsENR Johns. 631.

Ebrard v. Gassier 28 Ch. Div. 232.

Eyre v. BaldwinUNK 4 Ir. C. L. R. 270.

Palmer v. Ashbrook 4 Ir. Jur. (O. S.) 193.

Gledhill v. Hunter 14 Ch. Div. 492.

Lloyd v. Johnes 9 Ves. 37.

Hovendon v. Marshall 2 Ir. Jur. (N. S.) 378.

Austin v. HainesELR L. R. 4 Ch. App. 445.

Egremont v. ThompsonELR L. R. 4 Ch. App. 448.

Peter v.Peter 26 Ch. Div. 181.

Michaels v. The Empire Palace Company(Limited)ELR W. N. (1892), P. 38; 8 Times Rep. 378.

Grubb v. GrubbENR 5 B. & C. 457.

Bampton v. BirchallENR 5 Beav. 67.

Irving v. PearsonUNK 18 L. T. (N. S.) 283.

Williams v. Llanelly Railway co.ELR L. R. 10 Eq. 401.

Practice — Security for costs — Plaintiff coming to reside within the jurisdiction —— Continuing proceedings on change or transmission of interest by death — Declaration of title to land — Tenant for life and remainderman —

340 LAW REPORTS (IRELAND). [L. It. 1. Q B. Div. works double the amount allowed by the Board of Works in their 1892. final award ? According to Mr. Roche's argument they could. THE QUEEN if so, the protective control by the Commissioners can be entirely /.. TRAMORE evaded. The general words found in the section must, in my DRAINAGE opinion, be restrained to the purview and object of the section ; BOARD. and a subject-matter for their operation can be supplied by such Gibson, J. liabilities as I have indicated. Donohoe has not shown that any of the extra items are attriÂbutable to maintenance. The award imposes a capital liability of £2000. This amount cannot be exceeded. The Drainage Board is a statutory corporation whose powers of contract and rating depend on statute : Wenlock v. River Dee Company (1) ; Ashbury Company v. Riche (2). The application must therefore be refused, but, having regard to the conduct of the Drainage Board, without costs. Conditional order discharged. Solicitor for the relator : W. Bourke. Solicitor for the defendants : G. A. Goold. 31. V. 13. Q. B. Div. HOWARD v. HOWARD (3). 1892. Feb. 4, 5, 27. Practice-Security for costs-Plaintiff' coming to reside within the jurisdiction -Order XXIX., B. 4-Continuing proceedings on change or transmission of interest by death-Declaration of title to land-Tenant for life and reÂmainderman-Order XVII., Br. 2, 4. The plaintiff in an action brought to establish his right to considerable landed property in Ireland was at the time of the commencement of the action resident in France, and an order for security for costs was made on the appliÂcation of the defendant. Before the order was acted on the plaintiff came within the jurisdiction, and moved to discharge the order. It appeared that the plaintiff, though born in London, had been, since the year 1880, conÂtinuously residing in Paris, where he earned his livelihood as an accountant, and (1) 10 App. Cas. 354. (2) L. R. 7 II. L. 653. (3) Before HARRISON, O'BRIEN, and HOLMES, JJ. Von: XXX.] Q. B. & EX. DIVISIONS. occupied apartments held quarterly and furnished by himself. His wife was a Frenchwoman, carrying on the trade of a milliner, in premises at Paris, held in the plaintiff's name. He had resigned his situation as accountant, surrenÂdered his apartments, removed the furniture with the intention of sending it to Ireland, and had instructed his wife to wind up her business, in which request she acquiesced, though no step for the purpose had been as yet taken. He had become tenant of a cottage in Ireland for a term of five years, with power to surrender at the end of fifteen months ; he had obtained as yet no employment in Ireland, but was qualified to act as accountant, journalist, or teacher of the French language. He swore that he intended to reside in Ireland for the future whatever might be the result of the action :- Held, by Harrison, and Holmes, JJ., diss. O'Brien, J., that the facts did not establish to the satisfaction of the Court that the plaintiff's residence in Ireland was more than temporary, within the meaning of Order -XXIX., R. 4, and that therefore the order requiring security for costs ought to stand. By indenture of settlement several denominations of land were settled upon A for life, remainder to B for life, remainder to the first son of B for life, with remainder to his first and other sons successively in tail male, with like limitations in favour of the second and other sons of B and their issue in strict settlement. B and his eldest son (C) and B's second and third sons died, as was supposed, without issue in A's lifetime ; and upon A's death B's fourth son entered into possession of the lands as tenant for life, and died without issue, whereupon B's fifth son D entered into possession. E, who alleged that he was the lawful son of C, brought an action against D, claiming in the writ of sumÂmons as heir-at-law of C, and by his claim as endorsed on the writ, sought, 1, to establish his title to the lands ; 2, a declaration that he was entitled to the rents and profits of the lands ; 3, possession of so much of the lands as were in the occupation of the defendant ; 4, an account of the rents and profits, 5, an injunction to restrain the defendant from receiving the rents and profits ; 6, a receiver. D died before the action was further proceeded with, leaving a son F. E moved under Order XVII., R. 4, to continue the proceedings in the action against F. Held, that there was no transmission of interest within the meaning of the Rule, and that the application could not be granted. The Rule only applies to an interest or liability previously represented in the proceeding. Held, also, that the action was in substance an action for declaration of title, as distinct from an action of recovery of possession ; that it was defective in that F was not originally joined as a defendant, and the plaintiff's only mode of continuing the action would be to apply to amend under Order XVI., R. 11. Tim action had been commenced by the plaintiff George Howard against Cecil Ralph Howard, known as fifth Earl of 342 LAW REPORTS (IRELAND). [L. IL I. Q. B. Div. Wicklow, and Charles Robert Hamilton, and Arthur Hamilton, 1892. as defendants. The plaintiff by his writ of summons claimed :- Howeith 1, to establish his title to certain lands known as the Wicklow HoNsrenD. estates ; 2, a declaration that he was entitled to the rents and profits of the lands ; 3, possession of so much of the lands as were in the occupation of the defendants ; 4, an account of the rents and profits ; 5, an injunction to restrain the defendants from receiving the rents and profits ; 6, a receiver. Orders had been made on the 8th June, 1891, staying proÂceedings until the plaintiff should give security for costs, on the ground that he was permanently resident in France. Before the orders were complied with the plaintiff came to Ireland under the circumstances stated infra in the judgment of Mr. Justice Holmes. Cecil Ralph, Earl of Wicklow, died on the 25th July, 1891, leaving an eldest son, Ralph Francis, who was an infant under the age of twenty-one. The plaintiff now moved on notice :-1st, to rescind the orders of the 8th June, 1891; 2ndly, to continue the proceedings in the action as between the plaintiff and Ralph Francis Howard, a minor, called the Right Hon. Ralph Francis, Earl of Wicklow, by Tankerville Chamberlain, his guardian, and Charles Robert Hamilton, and Arthur Hamilton, as defendants. The motion to discharge the order for security for costs was grounded upon two affidavits made by the plaintiff, and the plainÂtiff was examined viva voce on the hearing of the motion. The substance of the evidence will be found sufficiently stated in the judgment. As to the second motion the following brief statement, of the title will be sufficient to enable the points raised to be understood. By a deed of settlement, dated the 8th February, 1849, the lands in question were settled upon William Howard (fourth Earl) and his brother Francis Howard successively for their lives, remainder to the first son of Francis Howard for life, remainder to his first and other sons, successively, in tail male ; with like remainders to the second, third, fourth, and fifth sons of Francis, and their respective first and other sons in tail male. Francis Howard, and his eldest son William George Howard, and the second and third sons of Francis all died, as was alleged, without issue in the life Vol,. XXX.] Q. B. & EX. DIVISIONS. time of the fourth Earl, who died in 1869, whereupon the fourth son of Francis Howard assumed the title and estates as fifth Earl He died without issue in 1881, when Cecil Ralph, the fifth son of Francis, succeeded. The defendants Hamilton had been appointed new trustee, of the settlement of 1849, and were not beneficially inÂterested in the suit. The plaintiff's case was that he was the lawful son of William George Howard. The Mac Dermot, Q. C., Carson, Q. C., and Cathrew, for the plaintiff. The Solicitor-General, The Right Hon. S. Walker, Q.C., F. P. Hamilton, and R. E. Meredith, for the Earl of Wicklow. The following authorities were cited : On the first motion (i. e. rescind the order for security for...