The Queen v Fay

JurisdictionIreland
Judgment Date27 March 1879
Date27 March 1879
CourtChancery Division (Ireland)

Ex. Div.

Appeal.

In the Exchequer Division, before PALLES, C. B., FITZGERALD and DOWSE, BB. In the Court of Appeal, before BALL, C., MAY, C. J., and DEASY, L. J.

THE QUEEN
and

FAY

The Oriental Financial Corporation v. Overend, Gurney & Co.ELR L. R. 7 Ch. App. 142.

The Liquidators of Overend, Gurney & Co. v. The Liquidators of the Oriental Financial CorporationELR L. R. 7 H. L. 348.

Philips v. AstlingENR 2 Taunt. 206.

Tobin v. The QueenENR 14 C. B. (N. S.) 505.

The Queen v. PerrinIR 4 Ir. Eq. 429.

Sagitary v. HydeENR 1 Vern. 455.

Newton v. ChorltonENR 10 Hare, 646.

Hodge v. The Attorney-General 3 Y. & C. 342.

Hardwick v. WrightENR 35 Beav. 133.

Wall v. Attorney-GeneralENR 11 Price, 643.

Phillips v. FoxallELR L. R. 7 Q. B. 666.

Lee v. JonesENR 17 C. B. (N. S.) 452.

Gwynne v. BurnellENRENR 9 Bing. 544; 2 Bing. N. C. 7.

The Attorney-General v. ResbyENR Hard 377.

The Attorney-General v. AtkinsonENR 1 Y. & J. 207.

Craythorne v. Swinburne 14 Ves. 164.

Capel v. ButlerENR 2 S. & S. 457.

Bonser v. CoxENR 4 Beav. 379.

Strange v. FooksENR 4 Giff. 408.

Evans v. BremridgeENRENR 2 K. & J. 175; 8 De G. M. & G. 101.

Wulff v. JayELR L. R. 7 Q. B. 756.

Wright v. Simpson 6 Ves. 734.

Watson v. AllcockENRENR 1 Sm. & G. 319; 4 De G. M. & G. 242.

Polak v. EverettELR 1 Q. B. Div. 675.

Hodgson v. Shaw 3 Myl. & K. 183.

Craythorne v. Swinburne 14 Ves. 160.

Wheatley v. BastowENR 7 De G. M. & G. 261.

Pledge v. BussENR John. 663.

Mayhew v. Crickett 2 Swanst. 185.

Macnamara v. Carey Ir. R. 1 Eq. 9.

Lester v. Lester 6 Ir. Ch. R. 513.

Watson v. Allcock 4 D. M. & G. 242.

Swan's Estate Ir. R. 4 Eq. 209.

Strange v. FooksENR 4 Beav. 379.

Palmer v. MoxonENR 2 M. & S. 52.

Straton v. RastallENR 2 T. R. 669.

Polak v. Everett 4 Ves. 824.

Law v. The East India Company

Pearl v. DeaconENR 1 De G. & J. 461.

Macdonald v. Bell 3 Moo. P. C. C. 315.

Smith v. BrownELR L. R. 6 Q. B. 729.

Black v. The Ottoman Bank 15 Moo. P. C. C. 472.

Dering v. Winchelsea 1 Wh. & Tud. L. C. 100.

Aldrick v. Cooper 2 Wh. & Tud. 80.

Watts v. ShuttleworthENRENR 5 H. & N. 235; 7 H. & N. 353.

Bonser v. CoxENR 4 Beav. 379.

Pawlett v. The Attorney-GeneralENR Hard. 465.

Cecil's CaseUNK 7 Rep. 18 b.

Sir William Harbert's CaseUNK 3 Rep. 15 b.

Reg. v. RentonENR 2 Exch. 216.

Sir T. Wyatt's CaseENR Saville, 60, plac. 130.

The King v. MarshENR M'Cleland, 703.

Mrs. Ashe's CaseENR Hard. 334.

Sir William Hix v. The Attorney-General Ibid. 176.

Attorney-General v. AtkinsonENR 1 Y. & J. 207.

R. v. ClarkeENR Bunb. 221.

R. v. BinghamENR 1 Cr. & M. 862.

R. v. R. v. BennettENR 1 Wightwick, 1.

Reg. v. Doughty Ibid. 2.

R. v. Butt Ibid. 3.

In re SmithELR 2 Ex. D. 47.

R. v. Bayley 4 Ir. Eq. R. 142.

Latouche v. Pallas Hayes, 450.

Salkeld v. Abbott Ibid. 576.

R. v. Dennis Hay. & Jon. 194.

R. v. DalyUNK 1 Ir. L. R. 381.

Swan's Estate Ir. R. 4 Eq. 209.

R. v. SalterENR 1 H. & N. 274.

R. v. Robinson Ibid. 275, note (a).

R. v. O'Callaghan 1 Ir. Eq. R. 439.

Viscount Canterbury v. Attorney-GeneralENR 1 Phill. 306.

Rees v. Berrington 2 Wh. & Tud. L. C. 1009.

Wright v. Simpson 6 Ves. 734.

Eyre v. EverettENR 2 Russ. 381.

Watson v. Allcock 4 D. M. & G. 42.

Wulff v. JayELR L. R. 7 Q. B. 756.

Strange v. FooksENR 4 Giff. 408.

Wheatley v. BastowENR 7 De G. M. & G. 261.

Attorney-General v. AtkinsonENR 1 Y. & J. 207.

Attorney-General v. ResbyENR 3 Mer. 278.

Rees v. Berrington 2 Wh. & Tud. 1029.

Sir Wm. Hix v. Attorney-GeneralENR Hard. 176.

Regina v. RentonENR 2 Ex. 216.

Regina v. BanksENR 6 Mod. 247.

Sheffeild v. RatcliffeENR Hobart, 334.

The King v. WiltonENR 2 Price, 368.

Rex v. BinghamENR 1 Cr. & M. 862.

Rex v. ClarkeENR Bunb. 221.

Regina v. SalterENR 1 H. & N. 274.

Tegina v. Robinson Ibid. 275, note (a).

Thomas v. The QueenELR L. R. 10 Q. B. 31.

Wright v. Simpson 6 Ves. 734.

London Assurance Company v. Buckle Ir. R. 1 Eq. 9.

Madden v. M'MullenUNK 13 Ir. C. L. R. 305.

Jephson v. Maunsell 10 Ir. Eq. R. 132.

Ex parte Newton 4 Ell. & Bl. 869.

laches, Lawder v. LawderUNK Ir. R. 7 C. L. 57.

Viscount Canterbury v. The Attorney-GeneralENR 1 Phill. 306.

The Bankers' CaseST1 14 State Trials, 74.

Watson v. AllcockENR 4 De G. M. & G. 242.

Capel v. ButlerENR 2 Sim. & S. 457.

Polak v. EverettELR 1 Q. B. Div. 669.

Gwynne v. BurnellENR 2 Bing. N. C. 7.

Crown bond — Omission to re-register — 34 & 35 Vict. c. 72 — Principal and surety — Exemption of the Crown from liability for default or laches on the part of its officers — Loss occasioned to surety by the alienation of land by the principal debtor — Notice — Pleading.

Ex. Div. exclude from the general devise in trust the lands in question, and 1879. the clear intent that William Cowley should have the ultimate KELLY beneficial interest in what remained after satisfying what the tes DUFFY. tator called " trusts," affords some indication that all which was excluded for the purpose of not being made subject to the trusts was so excluded for the benefit of him for whom the residuary trust was declared : the word " other " is sufficient to carry out this intention ; and without giving any undue force to the appointment as sole residuary legatee of the same person to whom he had imÂmediately before devised " all other my real and personal proÂperty," it at least confirms the view that the testator intended not to die intestate as to any part of his property. Upon the whole, I am of opinion that the lands of Greenogue passed to William Cowley by the will, and that the verdict directed for the Defendant should consequently stand. FITZGERALD, and DOWSE, BB., concurred. Solicitor for the Plaintiffs : P. Rooney. Solicitor for the Defendant : Leonard Morrogh. .Ex. Div. 1878. Jan. 25, 28, 30, 31. Feb. 22. Appeal. 1878. Dec. 9, 10, 11, 12. 1879. March 27. THE QUEEN v. FAY (1). Crown bond-Omission to re-register-34 car 35 Vict. c. 72-Principal and' surety -Exemption of the Crown from liability for default or laehes on thb part of its officers-Loss occasioned to surety by the alienation of land by the principal debtor-Notice-Pleading. To a mire facia& on a Crown bond against F., he pleaded that M. as principal, and A. and W. as sureties, executed a certain bond in the year 1860, conditioned for the due performance by M. of the duties of stamp distributor ; that the bond was duly registered pursuant to 7 & 8 Viet. c. 90, so as to ailed the lands of M. as to purchasers and mortgagees ; that A. died in 1866, and on the 25th of June, 1867, F. executed the bond sued on as surety for M.'s discharge of his said (1) In the Exchequer Division, be- before BALL, C., MILT, C. S., and fore PALLES, C. B., FrrzoERALD and BEAST, L. J. s DOWSE, BB. In the Court of Appeal, Vol,. IV.] Q. B., C. P., & El. DIVISIONS. 607 duties; that at the time of executing the bond F. knew that the bond of 1860 Ex. Div. had been properly registered, and was an incumbrance affecting the lands of 1878. M. as to purchasers and mortgagees ; that under 34 & 35 Viet. c. 72, Crown HE QUEEN bonds, to be valid against purchasers, mortgagees, or creditors, must be re- v. registered every five years ; that the Commissioners of Inland Revenue did not FAX• re-register the Crown bond of 1860 within five years before the execution of a vesting order of the 28th of June, 1875, whereby the lands of M. ceased to be affected by the bond, and became vested in purchasers for valuable consideration; that F. became a surety for M. upon the faith of the lands of M. being affected as to purchasers and mortgagees by the bond of 1860, which they were at the time he executed the bond of 1867 ; that by reason of the Commissioners neglecting to re-register the bond of 1860, the estate of M. in the lands became vested in a purchaser discharged of it; that the lands of M. affected by the bond of 1860 were worth more than sufficient to pay the debts and satisfy the default for which F. became surety for him ; that, by reason of the premises, F. was wholly released from his liability as surety, and the Commissioners wholly discharged and exonerated him from all the covenants in the bond of 1867: Held, upon demurrer, a bad plea. Per PALLES, C. B. (1). That the provision in Magna Charta, " neither shall the sureties of the debtor be distrained as long as the principal debtor is sufÂficient for the payment of the debt," did not apply, as it does not extend to sureties in a bond or recognizance bound equally with the principal, but only to pledgers, who by express words are not responsible unless their principal beÂcomes insolvent, and so are conditional debtors only. (2). That, taking the ease as one between subject and subject, the ladles of the creditor does not discharge the surety, but that the foundation of such discharge is the breach of an obliÂgation due by the creditor to the surety ; that the plea did not show any obligaÂtion on the part of the Crown to re-register the bond, and was therefore bad. (3). That even if otherwise good, the plea failed, on the ground that no lathes can be imputed to the Crown. Per BAT, r., C. (1). That a surety paying a debt to the Crown may have the benefit of the Crown process in the same cases in which an ordinary surety might have the benefit of a judgment at the suit of a subject. (2). That there existed no obligation on the part of the officers of the Crown to re-register the Crown bond. (3). That a claim against the Crown founded on the misconduct of its officers cannot be sustained. (4).- That the plea did not sufficiently show that F. had sustained any loss by the omission to re-register the bond. Per MA", C. J. That the plea was defective, as it failed to show, (1) that it was the duty of the Crown, as between its officers and F., to re-register the bond, in the absence of. any averment of notice to the Crown of the possession by M. of the lands in question ; (2) that owing to the omission of the...

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