The Estate of James Birch Kennedy and His Trustees, Oweners and Petitioners

• Jurisdiction: Ireland
• Judgment Date: 08 July 1867
• Date: 08 July 1867
• Court: Incumbered Estates Court (Ireland)

L. E. Court.

IN THE MATTER OF THE ESTATE OF JAMES BIRCH KENNEDY AND HIS TRUSTEES,

OWENERS AND PETITIONERS.

Hayden v. Carroll 3 Ridg. P. C. 545.

Oƒ€™Flaherty v. Mƒ€™Dowell 6 Ir. Chan. Rep. 350; 6 H.

Fawcett v. HodgesUNK3 Ir. Eq. Rep. 232.

Steward v. GreavesENR10 M. & W. 711.

Dean and Chapter of Ely v. BlissENR5 Beav. 574.

Stafford v. Henry 1 Ir. Jur. 133.

Guinness v. Fitzsimons 1 Ir. Jur. 357.

In re R. S. Guinness, Petitioner 1 Ir. Jur. 359.

Sumpter v. CooperENR2 B. & Ad. 223.

In re Anderson and others Cooke & Alcock, 1.

In re Fitzgeraldƒ€™s Estate 11 Ir. Chan. Rep. 278.

Crosbie v. Murphy 8 Ir. C. L. Rep. 301.

Moore v. CulverhouseENR27 Beav. 639.

In re Hamiltonƒ€™s Estate 9 Ir. Chan. Rep. 512.

Bulfin v. Dunne 12 Ir. Chan. Rep. 67.

Oƒ€™Flaherty v. Mƒ€™Dowell 6 II. Of L. p. 163.

— Meaning of Banker within the Bankerƒ€™s Act — Meaning of Creditor.

EQUITY SERIES. 425 IN THE MATTER OF THE ESTATE OF JAMES BIRCH KENNEDY L. E. Court. AND TITS TRUSTEES, OWNERS AND PETITIONERS. 1867. June 13, 15. Bankers' Act, 33 Geo. 2, c. 14 (Ir.)-Meaning of Banker within the Banker's July 8. Act-Meaning of Creditor. The Bankers' Act, 33 Geo. 2, c. 14 (Ir.), has not been repealed. A person who keeps a public office for the receipt of money, who issues bankers' drafts, and pays interest to depositors, is a banker within the meaning of 33 Geo. 2, c. 14 (Ir.), although he does not issue notes. An equitable mortgage, created by deposit of title deeds alone, is not such a security as is excepted by the 2nd section of 33 Geo. 2, c. 14 (Ir.), from the operation of the other sections of that statute. A judgment mortgage is not such a security within the 2nd section of 33 Geo. 2, c. 14 (Ir.) K, who carried on the business of a banker, having stopped payment, a trust deed was executed by a majority of his creditors, according to the provisions of 33 Geo. 2, c. 14, which vested the real estate of the banker in his trustees. Held, that creditors of K, who had previously obtained a judgment mortÂÂgage and an equitable mortgage, had no priority over the general creditors of K. Held, also, that, in estimating the necessary majority of creditors, certain banks were entitled to be enumerated, the debts due to whom were upon foot of bills of exchange discounted by them for K, and which bills were paid subÂÂsequently to the execution of the deed. THE contention in this case was between Messrs. J. P. Davies, W. J. Myers, and P. O'Connor, the trustees of a deed of the 27th of August, 1866, to which three-fifths of the creditors of Mr. J. B. KenÂÂnedy were parties, and Messrs. Edward George Brunker and James Peebles, who claimed to be paid the entire amount due to them in priority to the general creditors of Kennedy. Their joint demand was for £700, on foot of a judgment obtained by them as trustees of the settlement executed upon the marriage of Mr. Kennedy, and registered as a mortgage against the lands sold in this matter, in April, 1855 ; and Mr. Peebles further claimed £700, such sum having been advanced by him to Kennedy in May, 1859, upon the deposit of the title deed of the said lands, with a verbal agreeÂÂment, and without any contemporaneous writing. It was alleged that a few days afterwards Kennedy, at the request of Peebles, 426 THE IRISH REPORTS. L. E. Court. gave him. a memorandura in his own handwriting, and signed by 1867. him, acknowledging the loan of £700. The facts of the ease will be found stated in the judgment. It appeared from the affidavits which were read to the Court during the argument that Mr. Kennedy carried on the business of a bank of deposit and discount ; that he received money on deposit receipts, issued bankers' drafts, and paid interest to depositors ; that his office, which was in Dame-street, was open daily from ten o'clock in the morning till three o'clock in the afternoon, and that upon a board attached to it there were printed the words, "d. B. Kennedy and Co., Agents, Glynn, Mills and Co." Mr. Rogers...