Lee and Wife v Patrick Hayes

JurisdictionIreland
Judgment Date25 November 1865
Date25 November 1865
CourtCourt of Common Pleas (Ireland)

Common Pleas.

LEE and WIFE
and
PATRICK HAYES.

Rice v. RiceENR 2 Drew. 78.

Rooper v. HarrisonENR 2 K. & J. 86.

Montefiori v. Montefiori 1 W. Bl. 364.

Turton v. BensonENR 1 P. Wms. 496.

The Vauxhall Bridge Co. v. The Earl of SpencerENR Jacob, 67.

Roberts v. RobertsENR 3 P. Wms. 66.

Eyre v. M'Dowell 9 H. of L. Cas. 619.

M'Neilage v. HollowayENR 1 B. & Ald. 218.

Purdew v. JacksonENR 1 Russ. 66.

Sherrington v. YatesENR 12 M. & W. 855.

Gaters v. "MadeleyENR 6 M. & W. 423.

Halloran v. ThompsonENR 8 Ir. Jur., N. S. 332, and 14 Ir. Com. Law Rep. 334.

Hammond v. Dayson 15 Law Jour., Exch. 278.

M'Dougal v. RobertsonENR 4 Bing. 435.

Palmer v. Neave 11 Ves. 165.

Turton v. BensonENR 1 P. Wms 496.

M'Neilage v. HollowayENR 1 B. & Ald. 218.

Sherrington v. YatesENR 12 M. & W. 855.

Gaters v. MadeleyENR 6 M. & W. 423.

Richards v. RichardsENR 2 B. & Ad. 447.

Hart v. Stephens 6 Ad. & E., N. S. 937.

Castrique v. Buttigieg 19 Moore, P. C. C. 94.

Smith v. JohnsonENR 3 H. & N. 222.

Elwin v. Williams 12 Law Jour., N. S., Ch. 440.

Whistler v. ForsterENR 14 C. B., N. S. 248.

Thiedemann v. Goldschmidt 8 Weekly Rep., Ch. 14; reported also in 1 DeGex, F. & G. 4.

Cockshott v. BennettENR 2 T. R. 763.

Knight v. HuntENR 5 Bing. 432.

Crowe v. LysaghtIR 12 Ir. Com. Law Rep. 481.

Wallace v. KelsallENR 7 M. & W. 264.

Jones v. YatesENR 9 B. & C. 532.

M'Neilage v. HollowayENR 1 B. & Ald. 218.

Castrique v. Buttigieg 10 Moore, P. C. C. 94.

Sherrington v. YatesENR 12 M. & W. 855.

Gaters v. MadeleyENR 6 M. & W. 423.

Roberts v. RobertsENR 3 P. Wms. 66.

Dawson v. PrinceENR 2 De G. & J. 41.

Roberts v. RobertsENR 3 P. Wms. 66.

Rice v. Rice Drew. 96.

Whistler v. ForsterENR 14 C. B., N. S. 248.

Roberts v. RobertsENR 3 P. Wms. 66.

Cockshott v. BennettENR 2 T. R. 763.

Rice v. RiceENR 2 Drew. 778.

394 COMMON LAW REPORTS. M. T. 1865. CommonPleas. ' LEE and WIFE v. PATRICK HAYES.* (Common Pleas.) Nov. 7, 8, 25. To a count in DEMURRER.-In this case the action was brought by John Lee and an action by a Catherine his wife ; and the writ of summons and plaint complained husband and wife upon a that the defendant was indebted to the plaintiffs in the sum of 100, promissory note passed to "for that, on the 28th day of February 1862, and whilst the plaintiff the wife dum solo, the de- " Catherine Lee was unmarried, the defendant, by his promissory fondant plead ed that the "note, now over due, promised to pay to the plaintiff Catherine note was pass ed in fraud of " 100, twelve months after date, but did not pay the same." his (defend ant's) mar- "And for money payable by the defendant to the plaintiffs, for riage, and therefore void. The plaintiffs replied, upon equitable grounds, that the plaintiff the husband had married before the note became due, upon the faith that it would be duly paid, and without notice of the fraud. To two other counts upon accounts stated and settled before and since plaintiff's intermarriage respectively, the' deÂÂfendant pleaded that the accounts therein mentioned were stated concerning the promissory note in the first count mentioned, and not otherwise. Held, on cross demurrers to the replication, and to the second and third deÂÂfences, that 1-Where a document is referred to in a plea, the Court will look at it, and treat it as incorporated in the plea. 2-The fact that a plea purports to be pleaded on equitable grounds does not prevent the Court from treating it as a legal plea, in case it be found to amount to one. 3-The note was void ab initio, upon grounds of public policy, and was not set up by the mere fact of the marriage of the payee before its maturity. 4-The rule as to indorsement for value without notice is confined to cases where the security is in fact indorsed for value. 5-The second and third defences are bad, because the mere reference in them to the promissory note in the writ of summons and plaint mentioned does not incorporate the allegations contained in the first defence. Semble-If the first defence had been unsustainable at Law, the equities being equal, the legal right to recover upon the note would have turned the scale in favour of the plaintiffs. Semble-An equitable replication, which goes to show that the right to sue is only an equitable one, is bad. Semble-In a Court of Equity the plaintiffs would fail, because the equities being in other respects equal, the defendant's equity would be preferred, as prior in point of time.-Rice v. Rice (2 Drew. 77-8). Quare-Can fraud upon a marriage contract be pleaded at law to an action upon a bond ? Roberts v. Roberts (3 P. Wms. 65) discussed. * Coram MOHABAN, C. J., KEOGH, and CHRISTIAN, JJ. COMMON LAW REPORTS. 395 "money found to be due from the defendant to the said plaintiff M. T. 1865. Common Pleas " Catherine, whilst she was unmarried, upon accounts then stated " between them." LEE v. "And for money payable by the defendant to the plaintiffs, HAYES. "for money found to be due from the defendant to the plaintiffs, " on accounts stated between the defendant and the plaintiffs, "since their intermarriage, in respect of moneys payable by the " defendant to the said plaintiff Catherine whilst she was unmarried." To this the defendant Patrick Hayes pleaded :-" For a defence "on equitable grounds to the first count of the summons and plaint, " the defendant says, that before the solemnization of marriage "then intended, and shortly afterwards solemnized, between the " defendant and one Ellen Tuomy ; and after the execution of a " certain indenture of marriage settlement, dated the 20th of FebÂÂ" ruary 1862, and made and duly executed between and by " Catherine Hayes widow, and Catherine Hayes daughter of the "said Catherine Hayes, now Catherine Lee the plaintiff, and David " Hayes, son of the said Catherine Hayes, of the first part, and John " Tuomy and the said Ellen Tuomy, his daughter, of the second " part, and the said defendant Patrick Hayes of the third part, " after reciting, amongst other things, the then intended -marriage, "and that upon the treaty therefor it was proposed by the said John "Tuomy to give his daughter a marriage portion of 550, payable " as thereinafter mentioned, in consideration of the parties thereto of "the first part respectively giving up all their respective rights, " title, and interest in and to the farm and lands of Ashgrove, and "certain stock thereon, to which they were entitled as in the said "indenture mentioned, to which the said parties had agreed ;-it " was witnessed, that in consideration of said sum of 550, payable "as therein mentioned, and of the then intended marriage, the " said parties thereto of the first part did, according to their reÂÂ" spective rights, convey and assure unto the defendant Patrick " Hayes all their right, title, and interest in and to the said farm of " Ashgrove, and the stock thereon ; the said promissory note was, " by the defendant, made and delivered to the plaintiff Catherine, to "secure to her the payment of 100, which the plaintiff had, before " the execution of the said indenture, promised to pay to the said 396 COMMON LAW REPORTS. M. T. 1865. " Catherine Lee, in consideration that she would execute the said CommonPleas. "intended deed ; the defendant avers that the said promise was LEE " made, and the said promissory note was made and delivered v. HAYES. "to the said Catherine Lee without the knowledge, privily, or " consent of the said John Tuomy and Ellen Tuomy, as the said " Catherine Lee well knew ; and the defendant avers, that the said " John Tuomy and Ellen Tuomy were not aware of the making of "the said promise, or the said note, until after the solemnization of " the said marriage ; and that the said promise was made, and the "said promissory note made and delivered in fraud of the said " John Tuomy and Ellen Tuomy, and of the said indenture of " marriage settlement." " And as to the. second count, defendant says that the accounts " therein_ mentioned were stated of and concerning the said proÂÂ" missory note referred to in the first count, and not otherwise." " And as to the third count, the defendant says that the accounts " therein mentioned were stated of and concerning the said proÂÂ" missory note referred to in the first count, and not otherwise ; and, "therefore, the defendant defends the action." The plaintiffs, John Lee and Catherine his wife, replied as follows :-" As an equitable replication to the said equitable deÂÂ" fence to the said first count, the plaintiffs say that the plaintiff "John Lee married the plaintiff Catherine before the promissory " note in said equitable defence mentioned became due, and upon " the faith that same would be duly paid, and without notice "of the facts relied upon in said defence ; or that said: promissory " note was made in fraud of...

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