Wade v Stewart

• Jurisdiction: Ireland
• Judgment Date: 26 April 1852
• Date: 26 April 1852
• Court: Rolls Court (Ireland)

Rolls.

WADE

and

STEWART.

Richardson v. NixonUNK 7 Ir. Eq. Rep. 620.

Nash v. FlynnENRUNK 1 Jo. & Lat. 162; S. C. 6 Ir. Eq. Rep. 565.

Richardson v. NixonENR 2 Jo. & Lat. 250.

Fulham v. MacarthyENR 1 House of Lords Cases, 703.

Roche v. Morgill 2 Sch. & Lef. 721.

Grand Junction Canal Co. v. DimesENR 12 Beav. 82, 83.

The Grand Junction Canal Company v. DimesENR 12 Beav. 63.

166 CHANCERY REPORTS. the present to be educated by said governess, and is not to be sent to the school at Sion Hill. And let the said goverÂness reside in the same house with the minor, and be maintained by Mrs. Watts, with liberty to Mrs. Watts to apply next Term for the payment of an annual sum for the maintenance of such governess ; and let the minor on each Saturday afternoon be sent by Mrs. Watts to the resiÂdence of Mrs. Maria Fallon, the paternal aunt of the said minor, at Rathmines ; and let the minor remain at her said aunt's residence until each Monday morning following ; and let the said Mrs. Maria Fallon send back the minor to Mrs. Watts' residence on each Monday morning ; and let the said testamentary guardians and Mrs. Watts be at liberty to make such application as they may be advised in relation to the costs which have been incurred in this matter, when there shall be funds applicable thereto, after providing for the maintenance and education of the minor ; and declare that Mrs. Watts is entitled, until further order, to receive the annual maintenance for the minor found by the report. WADE v. STEWART. April 24, 26. The Masters have no jurisÂdiction to hear and determine causes except in the absence Tim petition in this matter was filed by Dora Wade and Catherine Wade, grand-nieces and legatees in the will of John Wade, deceased, by which he bequeathed £500 each to his several grand-nieces, and of the Lord Chancellor, unless the case is within the 15th section of the Chancery Regulation Act. Nor can the Lord Chancellor depute them to hear causes irreÂspectively of the Act. Therefore where a summary order was made under the 15th section of that Act referring the matter to the Maser, and it turned out upon facts which appeared in the office, but were not stated in the petition, that the case was not within the 15th section, it was Held, that the Master had no jurisdiction to hear or to dismiss the petition. If the Court itself has no jurisdiction in a cause it must be dismissed, but if the particular branch of the Court before which the cause is heard has no jurisdiction,it should be remitted to that branch of the Court which has jurisÂdiction. CHANCERY REPORTS. 167 among them to the petitioners, on their assigning over to their elder 1852. brother the respondent Samuel Wade any right, title or claim they Ro lls. might have against his property on account of their father's marriage WADE settlement. The petition averred the performance of the condition, STEWART. and prayed an administration of the real and personal estates of John Statement. Wade, that the said legacies might be declared well charged thereon, a sale and a receiver. On the 21st of February 1851 the usual order was made, under the 15th section of the Court of Chancery (Ireland) Regulation Act, by which it was ordered that it be referred to William Henn, Esquire, the Master in rotation, to consider the matter of the said petition, and proceed thereon pursuant to the statute. The charge having been filed by the petitioner, the respondent Samuel Wade by his discharge stated that, upon the occasion of the assignment of the charge under the said settlement by the petitioner Dora Wade to the respondent, it was agreed that the respondent should forego any claim he might have upon her legacy of £500, by reason of the said Dora not being married, and that accordingly he should secure the same immediately to her, with interest thereon from the date of such assignment, at the rate of £41 per cent., by his bond and warrant for confessing judgment thereon, and.that the said Dora Wade should in consideration thereof release the said Samuel Wade as well from the said legacy of £500 as from her claim under her father's said marriage settlement, and that accordingly a release was prepared in pursuance of said agreement under the respondent's directions, and at his expense, which was duly executed on the 19th of April 1845, by the said Dora, in order to entitle herself to the said legacy of £500, and which conÂtained an acknowledgment that the said legacy was duly paid to her ; and that in order fully to carry out the said agreement, and in conÂsideration of the said release, this respondent did execute his bond and warrant, for securing the full amount of the said legacy, together with interest at the rate and from the time aforesaid, and had always been ready and willing to deliver to the said Dora the said bond. and warrant, upon being handed by her the sum of £15 paid by the reÂspondent for legacy duty, on foot of her said legacy of £500, and also 168 CHANCERY REPORTS. the sum of £3. 15s., the expense incurred by the respondent in the preparation of the said release, which he submitted he was entitled to retain ; and that the said bond and warrant were then in the respondÂent's possession, ready to be delivered to the said Dora upon her complying with the conditions aforesaid ; and he insisted that he had fully carried out his said agreement with the said Dora, and that the said Dora was not therefore entitled to institute the suit against him, and that she could not, under any circumstances in this suit, go behind or impeach the said deed of release so executed by her. On the 26th of July 1851, the Master made the following ruling:- " Declare Dora's and Catherine's legacies well charged on the real and personal estates of the testator John Wade, and that there is due to Dora on foot of her legacy the sum of principal, after deducting therefrom the sum of £- legacy duty, with interest at L42 per cent. on the sum of £500 from the 14th of November 1845, that being the rate of interest which it appeared she had agreed to take, said sum amounting in the whole to the sum of £---, deductÂing thereout the sum of 1-- for legacy duty, with interest thereon at £5 per cent. from the - day of being six years prior to the filing of the petition, said slim to be paid to the said. Dora and Catherine on or before the 1st day of January 1852; and in default of payment of same or either of them, let an account be taken of the real and personal estate of said testator, and of all in-cumbrances, &c., and that a receiver be in that event appointed over said real estate and chattels real; and let...