Smith v Chichester

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

Chancery.

SMITH

and

CHICHESTER.

Simpson v. TaylorUNK 7 Ir. Eq. Rep. 182.

Burdon v. KennedyENR 3 Atk. 739.

Lyttleton v. CrossENR 3 B. & C. 317.

Borough v. WilliamsonUNK 11 Ir. Eq. Rep. 1.

Swann v. Broome 3 Bur. 1595.

Dow v. Magill 1 H. & Bro. 396, n.

Robinson v. TongeENR 3 P. Wms. 399.

Borough v. WilliamsonUNK 11 Ir. Eq. Rep. 1.

Stanford v. CooperENR Cro. Car. 102.

Doe v. CreedUNK 5 Bingh. 327; S. C. 2 M. & P. 648.

Bragner v. LangmeadENR 7 T. R. 20.

Calvert v. TomlinUNK 5 Bingh. 1; S. C. 2 M. & P. 1.

Ex parte Birch 4 B. & Cr. 880.

Greenway v. FisherENR 7 B. & C. 436.

Wilton v. GirdlestoneENR 5 B. & Al. 847.

Attorney-General v. AndrewENR Hardr. 23.

WilliamsonUNK 11 Ir. Eq. Rep. 1.

AnonymousENR 3 Salk. 212.

Swann v. Broome 3 Bur. 1595.

Hynde's case 4 Co. 71, b.

Lord Porchester v. PetrieENR 3 Doug. 274.

Millar v. BradleyENR 8 Mod. 189.

Walter's case Bulst. 35.

Whittaker v. WhittakerENR 8 B. & C. 768.

Samuel v. EvansENR 2 T. R. 569.

Stanford v. CooperENR Cro. Car. 102.

Morrice v. The Bank of EnglandENR 3 P. Wms. 401, n. f.

Darston v. The Earl of OrfordENR 3 P. Wms. 401, n. f.

Robinson v. Tonge 3 P. W. 399.

Bragner v. LangmeadENR 7 T. R. 20.

Savil v. WiltshireENR Willes, 428, n. a.

Calvert v. TomlinUNK 5 Bingh, 1; S. C. 2 Moo. & P. 1.

M'Ilwaine v. Magill 1 H. & B. 396, n.

Salkeld's ReportsENR 3 Salk. 212.

Millar v. BradleyENR 8 Mod. 189.

Prince v. slaughterENR 2 Vent. 104.

Dobson v. BellENR 2 Lev. 176.

Hays v. WrightENR Yelv. 35.

Lord Porchester v. PetrieENR 3 Doug. 261.

Lord Porchester v. PetrieENR Id. 274; see 2 Saund. 148, b, S. C.

Hynde's case 4 Co. 70, b.

Lord Porchester v. Petrie Ubi supra.

Swann v. Broome 3 Bur. 1595.

Dobson v. BellENR 2 Lev. 176.

CASES IN EqUITY. 519 SMITH v. CHICHESTER. ( Chancery.) Tars was a creditor's suit, instituted to recover the amount due on foot of a mortgage dated in 1817, and a sub-mortgage of 1832. The mortgage of 1817 was made by Sir A. Chichester. He at that time held the mortgaged premises under three leases of October 1812, each for a term of sixty-one years. The reversion belonged to Lord Donegal. On the 1st of May 1824 new leases for lives renewable for ever at the same rents were made by Lord Donegal to Sir A. Chichester, of the same premises. By the decree made in this cause in February 1840 it was declared that these new leases were for the benefit of the plaintiff's securities and were grafts on the original leases of 1812, and it was referred to the Master to take an account of the sum due to the plainÂtiffs and of all charges and incumbrances affecting the mortgaged premises prior to or cotemporaneous with their demand. The decree also directed accounts of certain other specified incumbrances, and amongst them an account of the sum due to the defendants Roberts and Nield on a bond of Sir A. Chichester dated in 1823 and judgment thereon of Easter Term 1824, and to the defendants Rundall and Bigge on foot of a bond of Sir A. Chichester of 1818 and judgment thereon of Trinity Term 1820, and it was directed that the Master should report the priorities, having regard to the original leases 1812 and the new leases of 1824. The Master found upwards of £20,000 due on the mortgage 520 CASES IN EQUITY. 1817. He also found that there was due on foot of the mortgage of 1832 made to the defendant Farrer and another upwards of £8000, and that this sum was charged upon and payable out of the mortgage of 1817, but was due to the plaintiffs under an indemnity deed of August 1832 mentioned in the report. The report found several sub-mortgages and mortgages of the equity of redemption, and set forth in a schedule the judgments recovered against the late Sir A. Chichester which were found to be charges affecting the mortgaged premises, and in another schedule set forth their priorities as affectÂing the original leases of 1812 as well as in regard to the renewals or new leases of May 1824. By the schedule enumerating the charges on the leases of 1812 the Master found the mortgage of 1817 the first charge, the judgment of Rundall and Bigge of Trinity Term 1820 the second charge, and the judgment of Roberts and Nield of Trinity Term 1824, the third charge. By the schedule of charges affecting the new leases of 1824 he found the mortgage of 1817 the first charge. He also found three judgments of Trinity Term 1820 in the Queen's Bench, recovered against Sir A. Chichester and vested in different persons, the third charge, in equal priority. One of these judgments, which was in point of fact entered on a day previous to the other two, was vested in Harrison and Church. The Master then found Rundall and Bigge's judgment, which was of the same Term, but in the Exchequer, the next in priority after these three, and arranged several other puisne judgments, including Roberts' and Nield's, according to their dates. The report also found other incumbrances subsequent to 1824, so affecting the new leases, to which, under the Redocketing Act, the judgments found to be charges on the leases of 1812 would be postponed. To this report several exceptions were taken. Two of these exceptions were to the findings of the report that the judgments of Rundall and Bigge and Roberts and Nield were the second and third charges affecting the leases of 1812, and insisted that the Master should have found that these judgments did not affect such leases at all. Another exception was to the finding that Harrison and Church's judgment was of the same priority as the other two Queen's Bench CASES IN EQUITY. 521 judgments of Trinity Term 1820, insisting that it ought to have been reported as prior to them. The judgment was in fact entered on the 7th of July, and the other two, one on the 10th of July and the other on the 11th of September 1820. Other exceptions were taken by Rundall and Bigge to the finding that their judgment was puisne to the judgments of the same Term in the Queen's Bench, insisting that it should have been reported prior to some of them which were in fact entered on days subsequent to the day on which their judgment was entered, or at all events that all the four judgments should have been reported of equal priority. There were several other exceptions. One of them (the third) was founded on an objection which the Master had overruled under the 134th General Order. Another was taken by parties who had no interest in sustaining it, but other parties interested in supporting it had in consequence taken no exception. Mr. Hughes, on the opening the third exception, objected that it Argument. could not be heard, for the Master had overruled the objection on which it was founded, under the 134th General Order, and his ruling on that point was conclusive. Mr. Greene, contra, urged that there was a fatality in the case, the carriage of the decree having been lately given to the party who took the objection, which accounted for the point not having been previously brought before the Master. The LORD CHANCELLOR held that the 134th Order and the Judgment. Master's ruling upon it were conclusive at that stage, and the party was excluded from raising the point now ; and said that the proper course, if there was a fatality or special case, was to apply to the Master of the Rolls for liberty to file objections, notwithstanding the General Order. Exception overruled, with co§ts. 66 tended that though that interest might be kept alive for the benefit v. cmcnEs- of the...