MICHAEL MURPHY and Others, Assignees of ALEXANDER ROBINSON a Bankrupt, v WILLIAM MOOREHEAD

• Jurisdiction: Ireland
• Judgment Date: 21 April 1865
• Date: 21 April 1865
• Court: Rolls Court (Ireland)

MICHAEL MURPHY and others, Assignees of ALEXANDER ROBINSON a Bankrupt,

and

WILLIAM MOOREHEAD.

Rolls.

Pain v. Smith 2 M. & K. 417.

Parker v. Housefield 2 M. & K. 419.

Tipping v. PowerENR 1 Hare, 405.

Tickle v. ThompsonENR 1 J. & H. 126.

Shipton v. Casson 5 B. & Cr. 378.

Murray v. ButtENR 8 El. & Bl. 738.

Gervais v. Edwards 2 Dr. & War. 80.

Staphyton v. Scott 13 Ves. 425.

Harnett v. Yielding 2 Sch. & Lef. 549.

Crofts v. Feuge 4 Ir. Chan. Rep. 326.

454 CHANCERY REPORTS. 1865. Rolls. Jan. 24. April 21. MICHAEL MURPHY and others, Assignees of ALEXANDER ROBINSON a Bankrupt, V. WILLIAM MOOREHEAD. An agreement THE facts of this case, as they appeared from the petition and recited that A was desirous of affidavits, are stated in his Honor's judgment. purchasing, and B ofsell- ing to A, the Mr. Ormsby, and Mr. Semple, for the petitioners, contended that half of a schooner, for they were entitled to a decree for a sale : Pain v. Snaith(a); Parker £200; and v. Housefield (b); Tipping v. Power (c); Tickle v. Thompson (d). that B had agreed to lend A £370, on Mr. Shaw, and Mr. E. F. Litton, for the respondent, argued, having the re payment there- first, that the suit was improperly framed ; that it should have been of and the in terest secured a suit for specific performance, and Samuel Moorehead should have by a mortgage of a rent- been a party to it. Secondly ; that the agreement was an entire charge to which A was one, and was rescinded by Alexander Robinson having failed to entitled, and of the divi- perform his part of it as regards the schooner : Shipton v. dends of a sum of stock, and Casson (e); But. L. pp. 29, 31 ; Murray v. Butt (D. The by a policy of Court would not decree the specific execution of part of a contract: insurance, and two houses ; Gervais v. Edwards (g); Stapylton v. Scott (h) ; Harnett v. and witnessed that B agreed to dispose of the schooner to A, and to execute the necessary deed for that purpose, the £200 purchase money of the schooner to be part of the £370 for which the mortgage was to be given by A ; and that A should execute a mortÂgage of the schooner to B, as a further security for the £370 which A- was to pay back by annual instalments of £50, until the principal and interest should be paid ; and if A neglected to pay off all or any of the instalments, with interest, B should have power and authority to call in the £370, or so much thereof as should be then due. The schooner proved unseaworthy, and was by mutual consent returned to B. A afterwards assigned the other property comprised in the agreement to C, who had notice of the agreement. Held, first, That a suit could be maintained against C for an account of the sum due on foot of the £170 actually advanced, and for a sale, although the agreement q,€oad the schooner had been rescinded. Secondly, That A was not a necessary party, but might be bound by a notice under the 3-2nd General Order of 1851. Thirdly, That the return of the schooner to B was not to be considered as a payÂment of instalments. (a) 2 M. & K. 417, (b) 2M. & 419. (c) 1 Hare, 405. (d) 1 J. & H. 126. (e) 5 B. & Cr. 378. (f) 8 El. & 738. (g) 2 Dr. & War. 80. (h) 13 Ves. 425. CHANCERY REPORTS. 455 Yielding (a); Crofts v. Feuge (b); Fry Sp. Perform., p. 272. 1865. Thirdly ; that the return of the schooner was in effect a payment Rolls. of four instalments, and the contract had therefore not been broken MURPHY by Alexander Robinson...