The Attorney-General v Evans

• Jurisdiction: Ireland
• Judgment Date: 05 November 1860
• Date: 05 November 1860
• Court: Rolls Court (Ireland)

Rolls.

The ATTORNEY-GENERAL

and

EVANS.

Massy v. O'Dell 9 Ir. Chan. Rep. 447.

Brady v. FitzgeraldUNK 12 Ir. Eq. Rep. 273.

Baker v. Gostling 1 Bing, N. C., 19.

Cremen v. HawkesUNK8 Ir. Eq. Rep. 153, 503.

pluck v. Digges 1 H. & Br. 81.

In the matter of the Estate of James Tipping 2 Ir. Jur. 172.

Major . BartonIR 2 Ir. Com. Law Rep. 28.

Stevelly v. MurhphyUNK 2 Ir. Eq. Rep. 456.

Brady v. FitzgeraldUNK 12 Ir. Eq. Rep. 273.

Massy v. O'Dell 9 Ir. Chan. Rep. 447, 448.

Smith v. Smith 5 Ir. Chan. Rep. 97.

CHANCERY REPORTS. 171 in mind that Lord Lyndhurst was the Lord Chancellor when that case was decided, who had, as Chief Baron, decided the case in 1 Young Col., to which the House of Lords was referred. In the present case, the clause does not refer to personal estate ; and, therefore, the same reason does not apply for giving the meaning to the words " at Common Law " which was given to these words in Gurly v. Gurly ; but I cannot reject the words in this case " or otherwise howsoever ; " and I am of opinion, on the whole, having regard to the observations of Lord Eldon, in Druce v. Denison, which case was recognised by the House of Lords, in Gurly v. Gurly, and having regard also to the judgment of the Law Lords in the latter case, that the petitioner, Elizabeth Jane Allen, was barred by the settlement of 1841 from claiming any part of the personal estate of her first husband, William Burgess, under the Statute of Distributions. I shall make a declaration to that effect ; and I presume the parties will agree upon an order, as to the distriÂÂbution of the fund, subject, of course, to the right to appeal against my decision. It would be desirable that there should be a schedule to the order, explaining the distribution of the fund. I apprehend that administration should be taken out to the two sons of William Gurly, before the order is made. There is some difficulty on the question in this case ; and I think it would be reasonable that the costs of the parties should be paid out of the fund in Court. The ATTORNEY-GENERAL v. EVANS. June 26, 27. Nov. 5. THE petition was presented under the Acts of the 10 Vic., c. 32, A rentcharge granted to se and 12 & 13 Vic., c. 59 (the Land Improvement Acts), for the cure a loan to an owner in fee, subject to a rent, by a grant prior to the 14 & 15 Vic., c. 20, has priority over the rent, under the Land Improvement Act, 10 Vic., c. 32, B. 38. Semble.-Where the loan is made to a tenant, the renteharge has not priority over the rent reserved by his lease, such rent not being a charge or incumbrance, within the meaning of the 38th section of the Land Improvement Act. 172 CHANCERY REPORTS. appointment of a receiver, to pay an arrear of rentcharge due to the Crown, in respect of loans made to Richard W. Yielding under the said Acts, for the drainage of the lands of Carrigkerry. The loans were made in 1847. At that time, Richard W. Yielding was seised in fee, under an indenture of the 7th of -June 1845, whereby John Evans conveyed the said lands to the said Richard W. Yielding, his heirs and assigns, yielding and paying thereout to the said John Evans, his heirs and assigns, the rent of 100 a-year, payable half-yearly. The deed contained a clause of distress and of re-entry, and perception of the rents and profits until the rent should be satisfied, and a covenant for payment of it. On the 25th of January 1860, the Court made an order for the appointment of a receiver, without prejudice to the question of priority between the claim of the Crown for the rentcharge, and that of John Evans for the rent reserved by the deed of the 7th of June 1845. The sum claimed by the Crown was 871. A motion was now made on behalf of the Attorney-GeneÂÂral, that the receiver should pay the arrears of rentcharge due to the Crown, and the accruing gales thereof, in priority to the rentcharge claimed by John Evans. A cross-motion was also moved by the latter for liberty to proceed at Law for recovery of the rent. Argument. Mr. Seijeant Lawson and Mr. C. Kelly, for the Attorney-General. The 1 1 th section of the 10 Vic., c. 32, provides that " Any owner of land, within the meaning of this Act, who may propose to improve the same under the provisions of this Act, may apply to the Commissioners of Public Works, by memorial, for a loan ;" and the word " owner," by the 6th section, includes "any...