Thorpe v Browne

• Jurisdiction: Ireland
• Judgment Date: 20 April 1865
• Date: 20 April 1865
• Court: Rolls Court (Ireland)

THORPE

and

BROWNE.

Rolls.

Trousdale v. SheppardIR 14 Ir. Com. Law Rep. 370.

In re Fitzgerald's EstateUNK 11 Ir. Ch. Rep. 278.

Cotton v. SawyerENR 10 M. & W. 328.

In re Fitzgerald's EstateUNK 11 Ir. Ch. Rep. 284.

M'Dowell v. WheatleyIR 7 Ir. Com. Law Rep. 512.

Woodroffe v. GreenUNK 12 Ir. Ch. Rep. 481.

Routh v. Roublett 1 Ell. & Ell. 850.

CHANCERY REPORTS. 365 the property of the said Richard Carmichael, after payÂment of his debts, legacies, and funeral expenses, as joint tenants, and not as tenants in common; and that, upon the death of the said Andrew Carmichael, the said Jane Carmichael, who survived the said Andrew Carmichael, became entitled to the entire of the said residue. Rolls Order Book, N. S., No. 2, f. 53. 1865. Rolls. M'DONNELL v. JEBB. Decree. THORPE v. BROWNE. 1865. Feb. 3, 4. April 20, THE petition was filed for a receiver, pending a sale in the Landed Estates Court, on foot of a judgment registered as a mortgage under the 13 & 14 Vie., c. 29, s. 6, and 21 & 22 Vic., c. 105. The judgÂment was obtained, in Michaelmas Term 1850, by the petitioner Daniel Thorpe, against George Humphreys Browne, who was deÂscribed in the judgment as "formerly of Ballinapark, in the county of Wexford, and now of the city of Dublin, Esquire." The original affidavit lodged in the Registry-office stated that the plaintiff obtained a judgment against the defendant, " by the name and description of George Humphreys Browne, formerly of BalliÂnapark, in the county of Wexford, and now of the city of Dublin, Esq., for the sum of £4400 sterling, besides £10. 1s. 10th costs." The affidavit for registration of a judgment under the 13 and 14 Vic., c. 29, describÂed the defendÂant as "forÂmerly of B., in the county of W., but now of the city of Dublin, Esq." - Held, folÂlowing In re Fitzgerald's Estate (11 Ir. Ch. Rep. 278), that the judgÂment was not duly regis tered. But it did not state directly that such was the defendant's residence But, semble, the object of and description at the time of filing the affidavit. To remedy this the statute was the identifica defect a supplemental affidavit was filed under the 21 & 22 Vic., tion of the parties to the c. 105, on the 1st of July 1859. The supplemental affidavit, after judgment; and therefore if the referring to the original affidavit, stated the " name of the de- affidavit de scribes them in a manner not calculated to mislead, the judgment is duly registered. Observations on the decisions on the Judgment Mortgage Act (13 & 14 Vie., c. 29). The supplemental affidavit filed under the 23 & 24 Vim, c. 105, can only supply a defect in the original affidavit, by stating positively that which was stated by way of recital. It cannot supply a defect in the description itself. 366 CHANCERY REPORTS. fendant, the person whose estate is intended to be affected by the registration of such judgment, is George, Humphreys Browne. That the said George Humphreys Browne then was, and now is, without trade or profession, and that his name and proper title is, and then was, Esquire. That his usual place of abode, shortly previous to the obtaining of said judgment, and the swearing of said affidavit by deponent, was Ballinapark, in the county of Mayo, and that the Foure.-courts Marshalsea, Dublin, was his place of abode at the time of obtaining said judgment and swearing said affidavit by deponent, and now is his usual place of abode last known to this deponent." The petition was filed against John Wellington Browne, the son and heir-at-law of George H. Browne. It was referred to Master Fitz Gibbon under the 15th section of the Court of Chancery (Ireland) Regulation Act 1850. The respondent by his discharge submitted that the judgment was not an incumbrance on the lands descended to him from his father, as the provisions of the statute had not been complied with, and particularly because the address of the said George H. Browne had not been sufficiently stated in either the original or supplemental affidavits. The Master, by an order dated the 3rd of December 1864, declared that the judgment had not been duly registered as a statutable mortgage. The petitioner appealed. An affidavit was made by the petitioner, filed the 28th of January 1865, and consequently not used before the Master, which stated:-"That, for several months before swearing the original affidavit of the 7th of January 1851, George Humphreys Browne had abanÂdoned his residence at Ballinapark, in the county of Wexford, for the purpose of avoiding his creditors ; and that, before and at the time of the swearing of the original affidavit, he had not, as the petitioner believed, any stated residence in the city of Dublin, and that he kept moving about from place to place in the said city of Dublin, seldom sleeping or taking his meals in the same place two nights consecutively, in order to avoid his creditors. That Ballinapark was his well-known former residence, and that the petitioner used every exertion, though ineffectually, to obtain CHANCERY REPORTS. 367 a knowledge of his place of abode in Dublin, before swearing the original affidavit; and it was impossible, such being the case, to state his residence more accurately than he did in the said affidavit. Mr. Brewster, Mr. Butt, and Mr. Wall, in support of the appeal. The residence is sufficiently stated as " of the city of Dublin,".if that was the only true statement which could be made at the time. Whether it was true or not may be proved by extrinsic evidence ; and it is positively sworn that it was impossible to give any other description, as he had no permanent residence in Dublin. If a man has no occupation, it is a sufficient description in a bill of sale to say so ; Trousdale v. Sheppard (a). If the Master's decision be right, it comes to this, that creditors cannot obtain the benefit of the staÂtute against debtors who, like this debtor, are absconding to evade their creditors-the very class against whom it is most essential to enforce the provisions of the statute. In re Fitzgerald's Estate (b) does not apply. In that case the defendant was described as of the "county of Dublin." That is a much wider and more vague descripÂtion than of the " city of Dublin ;" for a county contains various subdivisions,-various parishes, townlands, &c., recognised by law. The object of the statute was to identify the persons and the lands to be charged. The statute should be construed keeping that object in view. If it be lost sight of, and a literal construction be given to the statute, the benefit which the Legislature intended to confer on...