M'Namara v Blake

• Jurisdiction: Ireland
• Judgment Date: 26 April 1848
• Date: 26 April 1848
• Court: Rolls Court (Ireland)

Rolls.

M'NAMARA

and

BLAKE.

Colclough v. EvansENR 4 Sim. 76.

Milligan v. Mitchell 1 M. & Cr. 433.

Blackburn v. StanilandENR 15 Sim. 64.

Hodson v. BallENR 1 Phil. 177.

The Attorney-General v. Cooper 3 M. & Cr. 258.

Richards v. PageUNK 2 Ir. Eq. Rep. 223.

Perry v. Phelps 17 Ves. 173.

Davis v. BluckENR 6 Beav. 393.

Toulmin v. CoplandENR 4 Hare, 41.

Johnston v. NortheyENR 2 Vern. 407; S. C. Pr. in Ch. 134.

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

Watts v. HydeENR 2 Phil. 406.

Milner v. Lord Harewood 17 Ves. 144.

Greenwood v. AtkinsonENR 5 Sim. 419.

Wood v. Wood 4 Y. & Col. Ex. 135.

West v. SkipENR 1 Ves. sen. 239, 455.

Lord Lucan v. Latouche 1 Law Rec. N. S. 169.

Crompton v. WombwellENR 4 Sim. 628.

Kelly v. LennonENRUNK 1 Jo. & Lat. 305; S. C. 7 Ir. Eq. Rep. 98.

Blackburne v. StanilandENR 15 Sim. 640

Smith v. EffinghamUNK 11 Jur. 896.

Semple v. PriceENR 10 Sim. 238.

v. MorrisENR 1 Hare, 420.

Jones v. StowellsENR 2 Hare, 42.

Howells v. BakerENR 3 Hare, 73.1

Parker v. CarterENR 4 Hare, 406.

Greenwood v. AtkinsonENR 5 Sim. 419.

Wood v. Wood 4 Y. & Col. Ex. 135.

Columbine v. ChichesterENR 2 Phil. 28.

Gibson v. IngoENR 5 Hare, 156.

Milligan v. Mitchell 1 M. & C. 433.

Powell v. CockerellENR 4 Hare, 569.

Watts v. HydeENR 2 Phil. 406.

Palk v. Clinton 12 Ves. 62.

Magdalen College v. Sibthorpe 1 Rus. 154.

Bellamy v. SabineENR 2 Phil. 447, 448.

Blackburn v. StanilandENR 15 Sim. 64.

Wood v. Wood 4 Y. & Col. Exch. Cases, 135.

Hodson v. BallENR 1 Phil 180.

Dormer v. FortescueENR 3 Atk. 124.

Greenwood v. AtkinsonENR 5 Sim. 419.

Dyson v. MorrisENR 1 Hare, 420.

Jones v. HowellsENR 2 Hare, 350.

Holland v. BakerENR 3 Hare, 73.

Parker v. CarterENR 4 Hare, 406.

CASES IN EQUITY. 527 last-mentioned sum of 2500. 19s. 10d. Government 31 per cent. stock ; and also to the dividends and annual proceeds during her life of the sum of 2169. Os. 10d. of such stock, being the residue of the said last-mentioned sum of 2500. 19s. 10d. Government 31 per cent. stock, after deducting the said sum of 331. 19s. of such stock. 1847. Rolls. In re CHAMBERS: Order. 1847. Nov. 23, 29. 1848. Jan. 28. April 20, 26. Feb. 3. Tin bill stated, that on the 8th of October 1844 the plaintiff filed A bill, filed his bill, and afterwards amended same ; which bill so amended was in 1844, to raise a sum against Walter Blake the younger and Jane Charlotte his wife, secured on a term created Andrew Blake, James Blake Butler, Martin Kirwan, William by a settle ment of 1773, stated at length the proceedings in a suit of A. v. B. by a prior judgment creditor, and prayed the benefit of the decrees and accounts therein, that the decrees might be carried into execution, so far as necessary for the plaintiff's relief, and a sale of the term. The cause stood over at the hearing to make two minors parties by supplemental bill. One of them, X., by his answer, impeached the decrees in the suit of A. v. B., and both claimed as purchasers for value under a settlement of 1842, made by W. At the hearing of the supplemental cause in June 1847, plaintiff's Counsel conÂÂtended that X. could not impeach the decrees, as he claimed under W., who had acquiesced in them, and an order was made that the further hearing of the cause should stand over, with liberty to the plaintiff in the meantime to bring before the Court the parties beneficially interested in the decrees in A. v. B. The plaintiff filed a supplemental bill, setting out the whole of the proceedings in A. v. B., and the suit of 1844; certain assignments of the judgment and sum decreed in A. v. B. for the benefit of W., charging that W. and X., and the parties claiming under the assignment in A.'s right, could not object to have the decrees carried into execution, and praying that they might be carried into execution against them, and that the plaintiff might have the benefit thereof ; or if the Court should be of opinion that they could not he carried into execution, according to the terms thereof, with such modification as to the Court should seem meet ; and that plaintiff's claim, and all prior and contemporaneous charges, might be raised by a sale of the term of 1773. The Court refused to take the bill off the file as irregular ; but Held, on demurrer, that the order of June 1847, though it authorised the filing of a supplemental bill to bring new parties before the Court, did not warrant the making of a new case ; and that the case of estoppel, and the prayer that the decrees might be modified and altered, was a new case and not warranted by the order. Semble -The frame of the suit and relief prayed being altered, all the necessary parties to the suit of 1844 should be parties, particularly the party representing the term of 1773. 528 CASES IN EQUITY. Stewart and Abel Labertouche, Alexander Boyle and gm AlexÂÂander Nixon, the two last being executors of John Batchelor, deceased, and against several other parties as notice defendants; whereby he stated, among other things, " as your suppliant now charges the fact to be," that on the 1st of February 1815, John Batchelor filed a bill against Walter Blake the elder, Thomas Palmer, James Stewart, as surviving trustee of a deed of marÂÂriage settlement of the 25th of November 17'73, Andrew Blake the elder and Isabella Blake his wife (who had been the widow of Xaverius Blake the elder), and several other parties. That John Batchelor, by the said bill stated, which the plaintiff charged to be the fact, that Xaverius Blake the elder being seised in fee of certain lands in the said bill mentioned, was indebted to Captain Walter Blake in the sum of 4000, and on the 1st of February 1772 gave a bond for the penal sum of 8000, with warrant of attorney to confess judgment to John Kirwan as a trustee for Captain Walter Blake; that judgment was entered on the bond on the 6th of November 1773 against Xaverius Blake the elder in the Court of King's Bench, and afterwards assigned to Captain Walter Blakel and again by him to John Batchelor in 1801 ; that in November 1773, Xaverius Blake the elder married Isabella Blake ; and by a marriage settlement, dated the 25th of November 1773, conveyed certain lands to the use of himself for life, with remainder to his first and other sons in tail male, and divers remainders over, which were afterwards destroyed ; that a trust term of five hundred years, to commence from the death of Xaverius Blake the elder, was vested in John Kirwan and James Stewart, to secure a jointure of 800 a-year to Isabella Blake, and 10,000 for younger children; Mid Xaverius Blake the elder was empowered to charge the lands with a further sum of 12000 ; that the settlement was registered ; that there was issue of the said marriage seven children ; and Xaverius Blake the elder died on the 16th of January 1784, leaving his widow, Walter Blake the elder his eldest son and heir, and six younger children, John, Xaverius Blake the second, Anne, Bridget, Arthur and Andrew, him surviving; that Xaverius Blake the elder made his will on the 20th of November 1773, and in execution CASES IN EQUITY. 529 of the power given him by the settlement, appointed the sum of 1847. 10,000 equally among his six younger children in the event of ntaaa their respectively attaining the age of twenty-one, with benefit 344NA of survivorship among them ; that Isabella Blake, the widow of BLAKE. Xaverius Blake the elder, married Andrew Blake of Castlegrove ; Statement that on the 13th of February 1796, Captain Walter Blake filed a bill against the heir-at-law and Denis Blake the executor of Xaverius Blake the elder, and several other persons who were necessary parties to the suit, claiming 3167 as due to him on foot of the judgment, and prayed an account of the sum due, and of the personal estate of Xaverius Blake the elder, and that a competent part of his real estate might be sold to discharge the sum due. That John Batchelor, by his bill, after stating various dealings and transactions between him and Captain Walter Blake and William Bermingham, and divers proceedings in the said cause, and the disÂÂcontinuance thereof, prayed that he might be entitled to the benefit of the judgment, and the proceedings on foot thereof, an'account of what remained due on account of the personal estate of Xaverius the elder, and, in default of payment of the sum remaining due on the judgment, a sale of a competent part of the lands. The bill then stated various proceedings in the cause of Batchelor v. Blake, and a decree pronounced on the 16th of July 1815, referring it to the Master to take an account of the sum due to John Batchelor for sums advanced as the consideration of the assignment of the said judgment to him, and an account of the real and personal estate of Xaverius Blake the elder, and of his debts, legacies and funeral expenses, and an account of all incumbrances ; and that all creditors having charges and incumbrances affecting the estates should be at liberty to come in and prove the same. That Arthur Blake, one of the children of Xaverius Blake the elder, on the 25th of August 1810, assigned to Henry Butler all his right, title and interest in his several shares and proportions of the said sum of 10,000, being then entitled to 1666. 13s., one-sixth of 10,000, and to 416. 13s. 4d., one-fourth of the share of his brother Xaverius Blake the second, who died under twenty-one. That Henry Butler died in October 1814, and Hugh Molloy his administrator 67 530 CASES IN EQUITY. proved a charge in the cause of Batchelor v. Blake. That the Master made his report on the 11th of November 1818, and found the sum due to Batchelor; the lands of which Xaverius Blake the elder was seised at the rendition of the judgment, all of which were comprised in the marriage settlement of the 25th of November 1773, and in the term of five hundred years thereby created ; the various parÂÂties entitled to the younger children's portions, and among others Henry Butler's right under the...