M'Namara v Blake

• Jurisdiction: Ireland
• Judgment Date: 26 January 1849
• Date: 26 January 1849
• Court: Court of Chancery (Ireland)

Chancery.

M'NAMARA

and

BLAKE.

Attorney-General v. AspinallENR 2 My. & Cr. 613.

Bampton v. BirchallENR 1 Phil. 568.

Young v. WiltonUNK 10 Ir. Eq. Rep. 265.

Bignall v. AtkinsUNK 6 Mad. 369.

Stamer v. NesbittENRUNK S Jo. & Lat. 347; S. C. 10 Ir. Eq. Rep. 96.

Bellamy v. SaabineENR 2 Phill. 447.

Gibson v. IngoUNK 5 Ha. 156.

Deniston v. Little 2 Sch. & Lef. 11, n.

Hamilton v. Houghton 2 Bl. Rep. O. S. 169.

Wood v. Wood 4 Yo. & Col. Exch. Ca. 135.

Dyson v. MorrisENR 1 Hare, 413.

Jones v. HowellsENR 2 Hare, 342.

O'Connell v. M'Namara 3 Dr. & War. 411.

Davis v. BluckENR 6 Beav. 393.

Toulmin v. CopelandENR 4 Hare, 41.

Perry v. Phelips 17 Ves. 173.

Story's Equity Pleading Sec. 618, p. 606.

Wortley v. BirkheadENR 3 Atk. 809; S. C. 2 Ves. 571 6.

h1848. Cancery. WILLIAMS V. ARMSTRONG Judgment. 362 CASES IN EQUITY. her separate use, with restraints on anticipation, or it should be invested as an annuity? It was held she was entitled, being unmarÂried, to be paid the money, and the Court threw the costs of that question on the fund ; but that was not a case of doubt raised by the testator, but a difficulty arising from the status of the person who claimed the fund. The case before me is one clearly within. the general rule, and all parties must have their costs out of the estate. Reg. Lib. 100, fa 314, 1848. 1848. Dec. 7, 8, it. M'NAMARA v. BLAKE. 1849. Jan 26. A bill filed by Tnis was an appeal from an order of the Master of the Rolls, of the owner of a charge on a the 26th of April 1848, allowing the demurrer of James Hardiman term stated certain settle- Burke. The case will be found fully stated in the report of the ments o of the and a argument at the Rolls, ante, vol. 11, p. 527. estate former incumÂbrancer's suit, in which de- Mr. Maley and Mr. Serjeant O'Brien, for the plaintiff'. trees for sale of the inheriÂtance for pay ment of char- Mr. F. W Walsh and Mr. Christian, for the defendant J. H. ges, including those on the Burke. term, were made, and prayed the benefit of the Mr. Haley insisted on his right to commence in support of the decrees and to have them appeal: Attorney-General v. Aspinall (a); Bampton v. Bir- carried out by a sale of the (b). term. The cause being defective for want of the parties interested under the former decrees was ordered to stand over with liberty to amend, under which order a supplemental bill was filed, making parties persons stated to be all those interested under the decrees, and praying to have them carried out or executed with such modifications as should be fit, and stating new matters intended to bind the defendants by the former proceedings, and which might affect the parties to the former suits or their repreÂsentatives deriving under the settlements. Held, the bill was not sustainable without making the latter persons parties ; and Semble, a suit so framed, praying to correct a former decree if erroneous and have the benefit of it if not, is on that ground demurrable. M'Namara v. Blake, ante vol. 11, affirmed on appeal. On an appeal from an order allowing a demurrer, Counsel for the plaintiff begins. (a) 2 My. & Cr. 613. (6) 1 Phil. 568. CASES IN EQUITY. 363 Mr. Walsh contended that the party taking the demurrer was entitled to sustain it in the first instance in this Court as well as in the Rolls. The LORD CHANCELLOR. I shall decide in conformity with the practice established by the eases cited. In the case of Young v. Wilton (a) the plaintiff's Counsel commenced, as appears by the Registrar's book. The following authorities, in addition to those relied on in the argument at the Rolls, were cited :-Bignall v. Atkins (b) ; Starner v. Nesbitt (c); Bellamy v. Sabine (d); Gibson v. Ingo (e); Denis-ton v. Little (f). The LORD CHANCELLOR. This case comes before me on appeal from his Honor the Master of the Rolls. The demurrer is taken by James Hardiman Burke, and it was allowed by the Master of the Rolls. It has been fully argued now before me ; but in the view which I take of this case it will not be necessary for me to go much into detail on the facts or on these arguments. I think the order of the Master of the Rolls must be affirmed. The bill is of considerable length : whether it is of greater length than the circumstances warrant I will not say. The facts are of remote date, and the length of statement may be unavoidable. The substantial object of the suit is to raise a charge of £10,000 under a settlement of 1773. It is a charge for younger children, and the plaintiff claims a portion of that charge as administrator of Henry Butler, the assignee of Arthur Blake. The bill now before me purports to be a supplemental bill to the bill filed by the same parties on the 8th of October 1844. R. M'Namara is, as I have said, the administrator of Butler, the assignee of Arthur Blake; and the bill, purporting to be a supplemental bill, proceeds to state in (a) 10 Ir. Eq. Rep. 265. (b) 6 Mad. 369. (e) 3 Jo. & Lat. 347 ; S. C. 10 Ir, Eq. Rep. 96. (d) 2 Phil. 447. (e) 5 Ha. 156. ( f) 2 Sch. & Let. n. 364 CASES IN EQUITY. considerable detail the statements of the former bill and puts in issue the facts set forth in it. That bill was itself a...