Re Roche's Estate

• Jurisdiction: Ireland
• Judgment Date: 10 February 1890
• Date: 10 February 1890
• Court: Chancery Division (Ireland)

Chancery Division.

Monroe, J.

IN THE MATTER OF THE ESTATE OF THE HON. J. B. B. ROCHE,

OWNER;

THE HON. J. B. ROCHE,

PETITIONER.

Wilson's Estate Ir. R. 1 Eq. 309.

Dodwell's Estate Ir. R. 2 Eq. 230.

Malone's Estate Ir. R. 3 Eq. 75.

Power's Estate Unreported

Hartly v. O'Flaherty Beat. R. 61, at pp. 77-79; L. & G., Temp. Plunket, 216.

Averall v. Wade L. & G., Temp. Sugden, 252.

Aicken v. Macklin 1 Dr. & Walshe, 621.

Handcock v. Handcock 1 Ir. Ch. R. 444.

Barnes v. Racster 1 Y. & C. C. c. 401.

Gibson v. SeagrimENR 20 Beav. 614.

H. v. M'Cowan 7 Ir. Jur. (O. S.) 389.

Beere v. Head 3 Jo. & L. 340.

Huthwaite's Estate 2 Ir. Ch. R. 54.

Ker v. Ker Ir. R. 4 Eq. 15, 30.

Re Huthwaite 2 Ir. Ch. R. 54.

Woodroffe v. Green 14 Ir. Ch. R. 224.

Costs of solicitor having carriage — Priority — Judgment — Re-docketting — Registration under provisions of 7 & 8 Vict. c. 90 — Marshalling.

Vol,. XXV.] CHANCERY DIVISION. 271 IN THE MATTER OF THE ESTATE OF THE HON. J. B. B. Monroe, 1. ROCHE, OWNER; THE HON. J. B. ROCHE, PETITIONER. 1890. Jan. 27. Feb. 10. A solicitor who, pending the proceedings to a sale, ceases to act for the petitioner, but, being solicitor for the owner, continues to have carriage of the proceedings, and has conducted them properly, is entitled to be paid the costs of the matter in priority to the incumbrancers. A judgment was entered as of Hilary Term, 1844, under 3 Geo. 2, e. 7 (Ir.). It was not re-docketted under 9 Geo. 4, c. 35, nor registered under 7 & 8 Vict. c. 90 : Held, that by the 7th sect. of the 7 & 8 Vict. c. 90 an original entry, withÂout being re-docketted or registered is provisionally to bind a purchaser claimÂing within twenty years ; but until registration is duly completed the lands in the hands of a purchaser are not to be affected ; and that, not having been reÂdocketted or registered, the case was within the 2nd section, and the judgment was void against those claiming under a subsequent settlement. Persons deriving under a settlement of lands liable (with others, the proÂperty of the settlor) to incumbrances, are entitled to marshal against a subsequent incumbrancer of the unsettled lands. The rule laid down in In re Huthwaite's Estate (2 Ir Ch. R. 54), as to the priority of unre-docketted and re-docketted judgments when a subsequent mortgagee claims, discussed and applied. OBJECTIONS to the final schedule of incumbrances. The first question raised was as to the priority of the costs of the solicitors having carriage. There were two petitions, the first having been presented by Messrs. Barrington & Son on behalf of James B. Roche, on foot of a charge created in 1848, and which it was thought at the time covered all the lands except lots 7, 8, and 11. An absolute order was made for sale of all except these three lots. It was subsequently found that the charge did not cover five of the lots included in the order for sale ; and the Norwich Union, having a charge on all the lands, as well as on the life estate of Lord Fermoy, instructed Messrs. Barrington to 272 LAW REPORTS (IRELAND). [L. It. I. Monroe, 1. present a petition on their behalf for sale of all the lands not pro-1890. perly included in the first petition. A second petition was accord In re ingly presented ; and an absolute order for sale having been made ROCHE'S ESTATE. the two petitions were consolidated on the 8th May, 1876. Messrs. Barrington, anticipating the possibility of a conflict of interests between the members of the Roche family and the Norwich Union Company, arranged that they should act for the future as solicitors having carriage, but not for the Norwich Union Company. Mr. Serjeant Jellett, Q.C., and Hr. Matthew J. Bourke, on behalf of Messrs. Barrington & Son : The Messrs. Barrington's case is similar to that in Wilson's Estate (1) ; Dodwell's Estate (2) ; Malone's Estate (3). Even if they had been acting for Mr. Roche alone they would have been entitled to their costs. The Norwich Union Company appointed Messrs. Barrington to sell, and this constituted them the agents of both parties. Mr. Sedeant Campion, Q.C., and Mr. Matheson, on behalf of the Norwich Union Company : If the priorities are altered the whole costs might fall on us. The question of priority of the costs should stand over until the schedule is ruled. The ordinary rule is to apportion costs. This is not the case of proceedings on behalf of all. The original petition was not on behalf of the Norwich Union, who simply allowed their names to be used for the benefit of the parties in the first petition. Messrs. Barrington are not our solicitors. The costs are constantly apporÂtioned when there is but one petition. It was done last sittings in Power's Estate (4), for Mr. Pierce Kelly of Waterford. MONROE, J. :- I am clearly of opinion that the objection should be allowed. The solicitors were clearly acting for the benefit of all. I reserve the question of apportionment. (1) Ir. R. 1 Eq. 309. (3) Ir. R. 3 Eq. 75. (2) Ir. It. 2 Eq. 230. (4) Unreported. judgments, ranging from the year 1795 down to the year 1846, pin re and purported to show the several denominations of lands on ESTATE. which those judgments were charged. It also set out a number of old charges by way of mortgage or otherwise, and the lands affected by them respectively. These charges were all prior to the year 1848, and were now vested in William John Uther Brown, as trustee for the Norwich Union Insurance Company, as collateral security for advances made by said Company on foot of two mortgages executed in the years 1870 and...