Ussher, Petitioner; Balfour and Another, Respondents

• Jurisdiction: Ireland
• Judgment Date: 26 April 1876
• Date: 26 April 1876
• Court: Chancery Division (Ireland)

V. C. Court.

USSHER,

PETITIONER;

BALFOUR AND ANOTHER,

RESPONDENTS.

Gordon v. Mountcashel; Lisburne v. DaviesELR L. R. 1 C. P. 259.

Challnor v. DaviesENR 1 Esp. 460.

White v. WakleyENR 26 Beav. 17.

Ireland v. Wilson 1 Ir. Ch. R. 623.

Trant v. Dwyer 2 Bligh. N. S. 11.

Doe d. Lloyd v. JonesENR 15 M. & W. 580.

Perpetuity — Encroachments by under-tenants — Lease of Church lands — Costs.

218 THE IRISH REPORTS. R. V. C. Court. in the same position, not having paid his half of the £2000 into 1876. Bank. The Plaintiff has, in consequence of this default, been BAGNELL obliged to advance sums out of his own monies to pay the cur t% rent expenses of the concerns, while the Defendant has not paid anything. Such an event is contemplated by the partnership agreement, which by its 9th clause provides that a partner proÂÂÂviding a larger share of the capital than his own moiety shall be repaid his advances by the defaulter with interest at 10 per cent. per annum. The relief actually sought is nothing but the payÂÂÂment of money, for which an action at law can be maintained by one partner against the other, and the 9th clause measures the damages so to be recovered. The principle of this Court is not to decree specific performance in such a case. The allegations made about the refusal of the Defendant to sign cheques show that these were only temporary objections yielded by the Defendant soon after they were made, and no such default existed when the bill was filed. I must, therefore, dismiss the bill, but as the Defendant is by his own admissions in default, I shall do so without costs. Solicitors for the Plaintiff : Messrs. Falkhzer 85 Hone. Solicitors for the Defendant : Messrs. Barrington Co. V. C. Court. 1876. San. 24. April 26. USSHER, PETITIONER; BALFOUR AND ANOTHER, RESPONDENTS. Perpetuity-Encroachments by under-tenants-Lease of Church lands-Costs. When, on an application by a sub-lessee of Church lands (held by lease with a covenant to renew toties quoties), for a grant in perpetuity, it appeared that encroachments had been made by his under-tenants upon adjoining proÂÂÂperty of the immediate landlords, the Respondents, the Court refused to order the execution of a grant in perpetuity until the encroachments should be reÂÂÂstored, and directed that the Petitioner should pay the costs incurred by the Respondents in recovering the encroachments by ejectment for the purpose of enabling the grant to be made. PETITION...