Slator v Slator

• Jurisdiction: Ireland
• Judgment Date: 13 January 1866
• Date: 13 January 1866
• Court: Rolls Court (Ireland)

SLATOR

and

SLATOR.

Rolls.

Thorpe v. BrowneUNK 16 Ir. Ch. Rep. 365.

Eyre v. M'Dowell 9 H. of L. Cas. 619.

Blackwell v. EnglandENR 8 El. & Bl. 541.

Attenborough v. ThompsonENR 2 H. & N. 559.

Ablett v. BashamENR 5 El. & Bl. 1019.

Hewer v. Cox 30 Law. Jour., N. S., Q. B. 73.

Woodroffe v. GreeneUNK 12 Ir. Ch. Rep. 473.

Wolsely v. WorthingtonUNK 14 Ir. Ch. Rep. 369.

Franklyn v. Colhoun 3 Swanst. 276.

Lord Pelham v. The Duchess of Newcastle 3 Swanst. 290 n.

Coulston v. Gardiner 3 Swanst. 279 n.

Witham v. Bland 3 Swanst. 276.

Jenkin v. Bowen 3 Dr. 319.

Carter v. DickensonUNK 13 Ir. Ch. Rep. 118.

M'Dowell v. WheatlyIR 7 Ir. Com. Law Rep. 562.

Fonblanque v. LeeIR 7 Ir. Com. Law Rep. 550.

Crosbie v. MurphyIR 8 Ir. Com. Law Rep. 301.

In re Fitzgerald's EstateUNK 11 Ir. Ch. Rep. 278.

In re Power's EstateUNK 11 Ir. Ch. Rep. 288.

In re Smith and RossUNK 11 Ir. Ch. Rep. 397.

In re Morrow's EstateUNK 14 Ir. Ch. Rep. 44.

Adams v. Graham 10 Ir. Jur., N. S. 66.

Thorpe v. BrowneUNK 10 Ir. Jur., N. S. 166; since reported 16 Ir. Ch. Rep. 365.

Trousdale v. SheppardIR 14 Ir. Com. Law Rep. 370.

Hewer v. Cox 30 Law Jour., N. S., Q. B. 73.

Routh v. Roublett 1 Ell. & Ell. 850.

Lessee M'Donnell v. Murphy 2 Fox & Sm. 304.

Re Smith v. Rose 11 Ir. Chan. Rep. 356.

In re Fitzgerald's EstateUNK 11 Ir. Ch. Rep. 285.

Carter v. Dickinson 13 Ir. Chan. Rep. 118.

488 CHANCERY REPORTS. place, a further order of the Master for that purpose is clearly necessary. If the petitioner had issued a summons for the alloÂcation of the funds, I think it is very probable the Master would have directed a petition of revivor to be filed. Suppose the Master had made an order allocating the funds, and that the order was complained of, there might have been an appeal. It is not the usual course of the Court to decide appeals in an abated cause. It is contrary to justice that the respondent John Walsh should escape the payment of the costs (which the Master ordered him to pay) by reason of the technical objection raised ; and I shall refuse the motion of the respondent John Walsh with costs. Nov. 7, 13, 14, 18. 1866. Jan. 13, SLATOR v. SLATOR. If a defendant THE petitioner George Warner Wilson Slator obtained a judgment in a judgment is abroad, and against Alexander Henry Slator, for £3786. 16s., on the 11th of has no resi- Jul The bond and warrant of attorney, on which the deuce at the "hy lanim t - fsu is it , de in Ire- • Judgment was entered, were dated the 1st of July 1861, and ficient in an scribed the conusor A. H. Slator as " of Whitehill in the county of affidavit to re gister the judg- Longford." On the 12th of July 1862 the judgment was registered ment as a mortgage un- as a mortgage against the lands of Rossduff. The affidavit stated der the 13 & 14 Vie., c. 29, that "the name of the defendant is Alexander Henry Slator, and the s. 6, to state as his usual usual place of abode of defendant is Whitehill in the county of place of abode Longford petition , and the title of defendant is esquire." The p a property or estate to which prayed for a receiver. Maria Jane Slator was the wife of A. H. he is entitled, as his usual Slator, and had obtained a decree for alimony in the Ecclesiastical place of abode, although his Court, against him, on the 28th of April 1864, on which she sued last known re_ sidence in Ire_ out a sequestration on the 12th of May 1864. She was therefore was not there, made a respondent in this suit. By her discharge she contended A mere ver- gal error, e. g., " Whitehall " for " Whitehill," or " Marshalsea " for " the Marshalsea," in the description of the residence of the defendant, in the affidavit to register a judgÂment as a mortgage, will not vitiate the registration. CHANCERY REPORTS. 489 that the judgment was not duly registered, because the residence of A. H. Slator was not Whitehill on the 12th of July 1862. That he had left Whitehill, having put the petitioner in possession of it in October 1860; and on the 1st of July 1861 he made a lease of it to the petitioner ; that he resided in May 1861 in Dorset-street, Dublin ; and afterwards went to Abbey-lodge in the county of Dublin ; that in September 1861 he went to sea, as apprentice on board a merchant vessel ; that he returned in May 1862 ; and in the early part of July ',1862 he went again to sea, on a voyage to China. The respondent Mrs. Slator also set up as a defence that the judgment was obtained by fraud and collusion, and was void for want of consideration. The Master, by an order of the 29th of June 1865, declared the judgment well charged on the respondent's estate and interest in the lands of Rossduff, and appointed a reÂceiver. The petitioner obtained and registered as a mortgage another judgment against A. H. Slator on the 24th of February 1865. The affidavit stated, "that the usual place of abode of defendant has been Whitehall in the county of Longford, lately of Abbey-lodge in the county of Dublin, and now of Marshalsea in the county of the city of Dublin." The Master also declared that judgment well charged on the lands of Rossduff. Mrs. Slator appealed from the order. The Master's order and the statements in the affidavits are set out more fully in his Honor's judgment. Mr. Brewster, Mr. F. W. Walsh, and Mr. Henry Fitz Gibbon, for the petitioner. It is sought to carry the technical construction of the Judgment Argument. Mortgage Act (13 & 14 Vic., c. 29, s. 6) further in this case than in any other. Here the affidavit follows the description which the defendant gave of himself in the bond and warrant on which the judgment was entered, and when the judgment was registered he was out of the country and had no residence in Ireland. The result of yielding to such an objection would be to decide that where the defendant has no residence in Ireland, a judgment VOL. 16 62 490 CHANCERY REPORTS. cannot be registered as a mortgage. The tendency of the Courts latterly here on this Act, and in England on the Bill of Sales Act, is to adopt a more liberal construction, and to hold, as this Court did in Thorpe v. Browne (a), that a misdescription of the parties in the affidavit is not material unless it is calculated to mislead. In all the decisions on this Act, the objection appeared on the affidavit itself. This affidavit on the face of it complies in every respect with the Act, and the objection depends upon eviÂdence which the Master has adjudicated on. The practice of this Court is not to reverse the Master's decision on a question of fact. As to the objections to the second affidavit, they are merely clerical errors and could not possibly mislead any one. They cited Eyre v. .11P Dowell (b); Blackwell v. England (c); Attenborough v. Thompson...