Sweeny v Fleming

• Jurisdiction: Ireland
• Judgment Date: 26 January 1863
• Date: 26 January 1863
• Court: Court of Appeal in Chancery (Ireland)

Ch. Appeal.

SWEENY

and

FLEMING.

Digby v. IrvineUNK 6 Ir. Eq. Rep. 149.

Lymberry v. Helsham 1 Ir. Chan. Rep. 633.

Wise v. Beresford 3 Dru. & War. 276.

Vincent v. Helsham 4 Ir. Jur. 213.

Hale v. Carpendale 5 Ir. Jur. 121.

Hawkins v. GathercoleENR 1 Sim., N. S., 63.

Winter v. Homan 6 Ir. Chan. Rep. 479.

Ridgway v. Munkittrick 1 Dru. & War. 84.

Hawkins v. Gathercole 6 D. M. & G. 1.

Vincent v. Helsham 4 Ir. Jur. 213.

Hale v. Carpendale 5 Ir. Jur. 121.

Winter v. Homman 6 Ir. Chan. Rep. 479.

Vincent v. Helsham 4 Ir. Jur. 213.

Hawkins v. GathercoleENR 1 De G., M. & G. 1.

Bates v. BrotherisENR 2 Sm. & G. 509.

Winter v. Homan 6 Ir. Chan. Rep. 480.

Hawkins v. Gathercole 6 De G., M'N. & 1; S. C., 1 Jur., N. S., 481.

Hawkins v. Gathercole 6 De G., M'N. & G. 1; S. C., 1 Jur., N. S., 418.

CHANCERY REPORTS. 23 case of an equitable mortgagee, entitled to a sale, with the consequences of which we have nothing to do. The LORD JUSTICE OF APPEAL. I entirely agree with the LORD CHANCELLOR. The case comes to a very narrow issue. Here it is plain beyond all doubt that there was a valid debt, and that the parties intended to make it a charge upon the lease by way of equitable mortgage ; Sir Charles Domvile however says, that he has an interest in enforcing the covenants of this lease against assignment, and he seeks, on this ground, to stay the proceedings in the Landed Estates Court. The answer to his intervention appears to be very simple. If the Landed Estates Court has not a right to sell, Sir Charles Domvile will not be prejudiced by the execution of the conveyÂance from the Court to a purchaser. If, on the other hand, the right to sale does exist, it ought to be effectuated ; so that quaÂcumque via the Landed Estates Court is right in proceeding to a sale. Appeal Hearing Book, 2, f. 106. SWEENY v. FLEMING. Nov. 17. 1863. Jan. 26. Tins case came before the Court upon an appeal from an order made by his Honor the Master of the Rolls, affirming an order made by Master Fitz Gibbon, by which the petition in this case had been dismissed with costs. The respondent in this case was a beneficed clergyman, having a rectory, against which the petitioner had recovered a judgment, and had filed a cause petition under the 15th section of the Chancery Regulation Act, to raise the amount of the judgment out of the respondent's benefice. The Master, having come to the conclusion 24 CHANCERY REPORTS. 1862. that the 3 & 4 Vic., c. 105, did not confer upon judgment creditors Ch. Appeal. any remedy in equity against ecclesiastical rectories, dismissed the SWEENY petition. V. FLEMING. Mr. James Greene, for the petitioner. Argument. The words of the 3 & 4 Vic., c. 105, are amply sufficient to give the remedy, by equitable proceedings, against the respondent here. The 22nd section expressly includes rectories, and enacts that, when the debtor is seised of a rectory, the judgment creditor shall have the same remedies against it as if the debtor had, by writing under his hand, agreed to charge it. The cases of Digby v. Irvine (a) and Lymberry v. Helsham (b) have no application here ; they merely decide that relief upon a summary petition, under the Sheriffs Act, and the 21st section of the 3 & 4 Vic., c. 105, which extends the Sheriffs Act, cannot be given against any property which would not have been liable to an elegit under the 19th section ; and that, as the remedy by elegit is clearly inapplicable to an ecclesiastical rectory, the remedy by sumÂmary petition cannot be enforced. Here however the Court is not embarrassed by the nature of the remedy ; all it has to see is, first, whether the judgment debtor was seised of, or had disposing power over, the lands ; and, secondly, what relief would have been given if he bad, by writing, agreed to charge them ; and Wise v. Beres-ford (c) shows that such a charge would have given my client a right to the relief be seeks. Vincent v. Helsham (d) is also distinÂguishable on the same ground as Lymberry v. Helsham. The first time the present question came to be considered was in Hale v. Carpendale (e), before the present LORD CHANCELLOR, who then made a decree directly in favor of the petitioner's right, following Hawkins v. Gathercole (f), where Lord Cranworth, V. C., had made a similar decision. This case then came before the Court of Appeal in England (g), which was compelled to hold that the (a) 6 Ir. Eq. Rep. 149. (b) 1 Ir. Chan. Rep. 633. (c) 3 Dru. & War. 276. (d) 4 Ix. Jur. 213. (e) 5 Ir. Jur. 121. (f) 1 Sim., N. S., 63. (g) 6D.M.&G. 1. CHANCERY REPORTS. 25 clergyman, having, according to the 13 Eliz., c. 20 (Eng.), no power to charge his benefice, the statute gave no remedy against his ecclesiastical property. Here however Wise v. Beresford shows that the clergyman has full power to charge the benefice. Hawkins v. Gathercole, as decided on appeal, has therefore no application ; and this was so decided by the LORD CHANCELLOR in the last case on the subject, Winter v. Homan (a). 1862. Ch. Appeal. SWEENY V. FLENUNG. Argument. Mr. Serjeant Sullivan and Mr. William Robert Cusack Smith, contra. The statutes in England and Ireland, extending...