Munster and Leinster Bank v MacKey

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 21 November 1916
• Court: Chancery Division (Ireland)
• Date: 21 November 1916

Munster and Leinster Bank

and

Mackey.

M. R.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1917.

Practice — Mortgage Suit — Plaintiffs paid the Amount of their Demand — Death of Defendant — Application by Puisne Incumbrancer to have Proceedings continued — Application made ex parte — Order X VII, Rules 2, 4; Order XXXIII, Rules 7, 8.

In a mortgage suit an order for the sale of certain lands of the mortgagor was made, and out of the proceeds the plaintiffs were paid in full. The defendant having died, a puisne incumbrancer, who had not been paid in full, applied ex parte to have the proceedings continued by the original plaintiffs against the personal representative of the defendant.

Held, that the proper application was for an order to continue proceedings in the name of the applicant as plaintiff, against the personal representative of the defendant, and that the application should be by summons.

Motion of Course.

Application on behalf of Patrick Rogers to have the proceedings continued by the plaintiffs against Mary Mackey, executrix of the defendant. The action was brought to recover the amount of a mortgage. Certain lands of the defendant were sold in the action, and out of the proceeds the plaintiffs had been paid off, and Patrick Rogers, a puisne incumbrancer, had been paid the balance available on foot of his demand which remained unsatisfied.

Murnaghan, for Patrick Rogers, referred to Order XVII, Rules 2, 4, Order XXXIII, Rules 7, 8. By an order made in the action on the 17th July, 1916, reciting that the plaintiffs had been paid off, the carriage of the proceedings was transferred to the defendant. If he were now alive, I could take out a summons asking to have carriage transferred to me. Order XXXIII, Rule 8, deals with the case of a puisne incumbrancer who has not been paid off, and he is the person to apply under that rule. Order XVII, Rule 4, states that...