RICHARD BENNETT .. Plaintiff, THOMAS BERNARD and several others . Defendants; RICHARD BENNETT .. Plaintiff, THOMAS SADLIER and several others . Defendants; EDWARD SARGENT .. Plaintiff, THOMAS BERNARD and seveal others . Defendants

• Jurisdiction: Ireland
• Judgment Date: 01 February 1848
• Date: 01 February 1848
• Court: Court of Chancery (Ireland)

Chancery.

RICHARD BENNETT .... Plaintiff,

THOMAS BERNARD and several others . Defendants;

RICHARD BENNETT .... Plaintiff,

THOMAS SADLIER and several others . Defendants;

EDWARD SARGENT .... Plaintiff,

THOMAS BERNARD and seveal others . Defendants.

Garrard v. Lord LauderdaleENR 3 Sim. 1; S. C. Rss. & My. 451.

Roe v. Mitton 2 Wils. 356.

Stephens v. Trueman 1 Ves. 73.

Crisp v. PrattENR Cro. Car. 550.

Pulvertoft v. Pulvertoft 18 Ves. 84.

Pott v. Todhunter 2 Col. 76, 82.

Browne v. CavendishUNKENR 7 Ir. Eq. Rep. 369, 389; s. C. 1 Jo. & lat. 606.

Fortescue v. Barnett 3 M. & K. 36.

Myers v. Duke of LeinsterUNK 7 Ir. Eq. Rep. 146.

Sterndale v. HankinsonENR 1 Sim. 393.

Lord St. John v. BoughtonENR 9 Sim. 223-4.

O'Kelly v. BodkinUNK 3 Ir. Eq. Rep. 390.

Henry v. SmithUNK 2 D. & War. 293.

Browne v. LynchUNK 4 Ir. Eq. Rep. 316, 318.

Lake v. HayesENR 1 Atk. 282.

AnonymousENR 2 Atk. 1.

Bampton v. BirchallENR 5 Beav. 67, 330.

Hamilton v. Houghton 2 Blgh. O. S. 169.

Lloys v. Johns 9 Ves. 37.

Sharp v. HullettENR 2 Sim. & St. 496.

Porter v. CoxENR 2 Sim. & St. 496.

Williams v. KinderUNK 5 Mad. 80.

Gressly v. Adderly 1 Swanst. 573.

Young v. Wilton Ante, p. 10.

Harrington v. YoungENR 2 My. & K. 590.

wrixton v. VizeUNK 4 ir. Eq. Rep. 463.

Beere v. HeadUNK 9 Ir. Eq. Rep. 76.

Joce v. Joyce Since reported, ante, p. 128.

Hickson v. CollisUNK 6 Ir. Eq. REp. 524; S. C. 1 Jo. & L. 94.

Garnett v. Armstrong 4 Dr. & W. 182.

Cockburne v. WrightUNK 6 Ir. Eq. Rep. 1.

Hickson v. Collis Ante, p. 447.

Blake v. DarcyENR Sau. & Sc. 493.

Knox v. KellyUNK 1 Dr. & Wal. 542.

Hickson v. CollisUNK 6 Ir. Eq. Rep. 524; S. C. 1 Jo & L. 94; ante, p. 447.

HankinsonENR 1 Sim. 393.

O'Kelly v. Bodkin 2 Ir. Eq.Rep. 361; S. C. 3 Ir. Rep. 390.

Murphy v. SterneUNK 1 Dr. & Wal. 236.

Berlington v. BlakeUNK 9 Ir. Eq. Rep. 86.

Browne v. Lynch Ubi sup.

Pulteney v. Warren 6 Ves. 73.

O'Donnell v. Browne 1 B. & Bea. 262.

Atkinson v. Atkinson 1 B. & Bea. 238.

Henry v. SmithUNK 4 Ir. Eq. Rep. 502.

Reilly v. FitzgeraldUNK 6 Ir. Eq. Rep. 335.

Dowell v. BurkeUNK 9 Ir. Eq. Rep. 83.

Montgomery v. Southwell 2 Co. & Law. 263.

Sterndale v. Hankinson Ubi sup.

O'Kelly v. Bodkin Ubi sup.

GArnett v. Armstrong 4 Dr. & War. 182.

Cockburne v. WrightUNK 6 Ir. Eq. Rep. 1.

Carroll v. Darcy Since reported, ante p. 321.

Hickson v. CollisUNK Ante p. 447; S. C. 6 Ir. Eq. Rep. 524.

Blake v. DarcyENRSau. & Sc. 493.

Knox v. KellyUNK 1 Dr. & Wal. 542.

Stewart v. CottinghamUNK 6 Ir. Eq. Rep. 248.

Geraghty v. Abbott 8 Ir. Law Rep. 60.

Beere v. HeadUNKUNK 8 Ir. Eq. Rep. 647; S. C. 9 Ir. Eq. Rep. 76.

Barton v. TattersallENR 1 Russ. & My. 237.

Bagge v. UNK 3 Ir. Eq. Rep. 494.

Molesworth v. RobbinsUNK 8 Ir. Eq. Rep. 1, 223.

Maguire v. DundassUNK 1 Ir. Eq. Rep. 25.

Salt v. Donegal Ll. & G. temp. Sug. 82.

Sterndale v. WilliamENR 1 Sim. 393.

O'Kelly v. BodkinUNK 2 Ir. Eq. Rep. 361.

Berrington v. Evans 1 Y. & Col. Exch. 434.

Sterndale v. Hankinson Ubi sup.

Barrington v. Evans Ubi supra.

Browne v. LynchUNK 4 Ir. Eq. Rep. 316.

O'Kelly v. Bodkin Ubi supra.

Daniel's Chancery Practice Vol. 2, 1381.

Binks v. BinksENR 2 Bli. 593.

Lloyd v. Johnes 9 Ves. jun. 37.

O'Kelly v. BodkinUNK 2 Ir. Eq. Rep. 369.

Hickson v. Colli Judgement has since been given in this case, reversing the decison of Sir E. Sugden; see ante, p. 447.

Pratt v. BarkerENR 1 Sim. 1.

Brookfield v. BradleyENR Jac. 632.

Lloyd v. Johnes 9 Ves. 37.

Attorney-General v. FosterENR 13 Sim. 282.

Bennett v. Hamill 2 Sch. & Lef. 576.

Williams v. Kinder 4 Ves. 387.

French v. Barton 18 Ves. 425, n.

Wheeler v. MalinsUNK 4 Mad. 171.

Sharp v. HulletENR 2 Sim. & Stu. 496.

Porter v. MalinsUNK 5 Mad. 80.

584 CASES IN EQUITY. 1848. Chancery.' RICHARD BENNETT . . Plaintiff THOMAS BERNARD and several others . Defendants; also RICHARD BENNETT . • Plaintiff THOMAS SADLIER and several others . Defendants; also EDWARD SARGENT . . Plaintiff THOMAS BERNARD and several others . Defendants. (Chancery.) Feb. 1. BEFORE THE LORDS COMMISSIONERS. A. father, te- THE questions in this cause arose, first, on the effect of a certain nant for life, with re- deed dated in 1808 ; and secondly, on the Statute of Limitations mainder to his and Redocketing Act. son, joined with the son in executing a postnuptial settlement by which the father and the son assigned the lands to a trustee, in trust for the father for life, subject to an annuity for the son ; and after the father's death in trust for the son, subject to a jointure (charged by a pre-existing deed), and charged with a sum for portions of the younger children of the father. The father and son afterwards joined in a mortgage, which did not notice this settlement : it contained covenants for title, but not against incumbrances. Held, that the settlement, as regarded the provision for the younger children, was not voluntary or void as against the mortgagee, nor revocable by the father and son ; and even if it was revocable, was not revoked by the mortgage. The doctrine that creditors or parties proving their demands under a decree are entitled to consider the suit as theirs from the commencement, so as to prevent the effect of the Statute of Limitations, is not confined to suits purporting to be on behalf of creditors generally, but extends to an ordinary mortgagee's suit for foreclosure and sale, in favour of prior creditors proving charges on the mortgaged lands. Although a suit be totally abated by a sole plaintiff assigning away his interest or becoming insolvent, it is yet capable of being continued so as to allow the benefit of it under this doctrine to creditors proving charges under a decree made in a suit seeking the continuance and benefit of the abated suit : and where the original plainÂÂtiff made an assignment by deed for the benefit of creditors, one trust of which was to continue the abated suit, and original bills in the nature of bills of reviver and supplement were filed by the trustee and a cestui vie trust of this deed, stating it and praying the benefit of the abated suit, the receiver appointed in which was continued, a decree made and entitled in the new suits only, without referring to the abated one but reciting among the evidence the proceedings in it, was Held to be such a decree as entitled creditors proving charges under it to the benefit of the abated suit for this purpose. The pendency of a suit has no effect in preventing the operation of the RedocketÂÂing Act, 9 G. 4, c. 35, against judgment creditors proving their demands under the decree; and therefore in a suit to raise a mortgage of 1810, instituted in 1811, and revived in 1841, it was Held in 18484, that judgments entered between 1800 and 1810, but not redocketed within five years of 1828, were void as against the mort gage. The practical application of Lord Redesdale's classification of bills observed on. * See statute 8 & 9 Vie. c. 90, s. 7. CASES IN EQUITY. 585 The first question* depended on the following facts :-George Clarke, sen., was seised of the lands of Derrinboy, under a lease for lives renewable for ever, and Thomas Bernard was entitled to the lands of College Hill, held for a term of years under Trinity College. An indenture dated in 1782, was made between the said George Clarke, sen., and his wife Jemima Clarke, formely Bernard, of the first part ; the said Thomas Bernard, her father, of the second part, and Thomas Bernard, jun., and another, trusÂÂtees, of the third part : it recited that there were issue of Clarke's marriage, George Clarke, jun., the eldest son, and two younger children, James and Sarah, and that no portion had been given or settlement made on the marriage ; but that George Clarke, sen., had now, in consideration of the settlement of College Hill and a sum of 1620 given as his wife's portion, agreed to settle Derrrinboy ; George Clarke, sen., then conveyed Derrinboy, and Bernard. conÂÂveyed College Hill, to the trustees, on trust for George Clarke, sen., for life ; then to secure a jointure of 130 for Jemima Clarke, and subject thereto in trust for George Clarke until he should attain twenty-one and on his attaining that age to convey the lands to him absolutely, with limitations over in case he should die under twenty-one ; and George Clarke, sen., covenanted with the trustees that all the real or personal estate which he should die seised and possessed of should be chargeable with a sum of 1500 for the younger children of the marriage, subject to a power of appointment among them vested in him. By another indenture, dated in February 1803, and made between George Clarke, sen., of the first part; George Clarke, jun., of the second part; George Maher of the third part ; and a trustee of the fourth part ; George Clarke, sen., and George Clarke, jun., assigned College Hill on trust for George Clarke, sen., for life, and after his death, subject to the annuity of 130 for Jemima Clarke and to 1500 for younger children's portions, on trust for Maher. A suit was afterwards instituted by the Clarkes against Maher and the trustee, in which a decree was made in July 1808 for a reconveyance to the Clarkes, on payment of the sum which should appear due by them to Maher ; and accordingly, by an indenture dated in May 1810, the lands were reconveyed by Maher and his trustee. The deed, dated the 16th of August 1808, on which the question above referred to arose, was made between George Clarke, sen., and Jemima his wife of the first part; George Clarke, jun., of the * Heard before RICHARDS, B., JACKSON, J., and bloom:, 3. 74 586 CASES IN EQUITY. 1848. second part ; and William Wilkinson of the third part. It recited Chancery. that George Clarke, sen., and George Clarke, jun., had come to an BENNETT agreement in order to secure a provision for George Clarke, jun., v. during his father's life, and for the purpose of settling the lands of BERNARD. College Hill as thereinafter mentioned : and George Clarke, Sen., Statement. and George Clarke...