Woodroffe v Greene

• Jurisdiction: Ireland
• Judgment Date: 15 June 1863
• Date: 15 June 1863
• Court: Rolls Court (Ireland)

Rolls.

WOODROFFE

and

GREENE.

Mara v. TibeaudoUNK 7 Ir. Eq. Rep. 556.

In re HuthwaiteUNK 2 Ir. Ch. Rep. 54.

In re Lowe 4 Ir. Ch Rep. 97.

In re Scott Not reported

Mara v. Tibeaudo Ubi supra

Young v. WiltonUNK 10 Ir. Eq. Rep. 25–6.

O'Brien v. ScottUNK 11 Ir. Eq. Rep. 63, 459.

Barham v. Keane 8 Jur., N. S., 604.

Benhan v. KeaneENR 1 J. & H. 685.

In re Huthwaite 2 Ir. Chan. Rep. 54.

Woodroffe v. GreeneUNK 12 Ir. Ch. Rep. 473.

Routh v. Roublet 1 Ell. & Ell. 850.

O'Brien v. ScottUNK 11 Ir. Eq. Rep. 63; and on appeal, same volume, p. 459.

In re Huthwaite 2 Ir. Chan. Rep. 54.

Mara v. TibeaudoUNK 7 Ir. Eq. Rep. 566.

224 CHANCERY REPORTS. several legacies bequeathed by the will, it could scarcely have been contended that what a residuary legatee takes under the will is nor a legacy. If so, it is difficult to say that a residuary bequest, which would be impliedly subject to previous pecuniary legacies, is the bequest of a legacy ; but that if there is an express direction as to that which would be otherwise implied, it is to make a difference ; and the bequest is not the bequest of a legacy. A residuary legatee I may observe, is a legatee within the Stamp Act. There is some doubt in this case ; but as I think it is for the interest of the minors that they should be properly maintained and educated, I shall, when the residue is transferred to the credit of this matter, make an order that the dividend should be paid to the petitioner Mary Anne, for the maintenance and education of the minors ; and I think I should be justified in making that order, if for the benefit of the minors, although the construction which I think may reasonably be put on the will, was not the correct construction. I may observe that the special case, in this case, is not regularly framed. The proper form a a special case will =be found in Tripps' Forms, p. 145, and in the other English works conÂtaining forms of Chancery proceedings. WOODROFFE v. GREENE. And other matters. The rule in Tuts was a motion on objections to the Master's further report, Huthwaite's case (2 Ir. made under an order of July 1861, by which the Master was Ch. Rep. 54), that an unre docketed judgment is not only null and void as against a subsequent mortgage, but also null and void against an intervening redocketed judgment, is not applicable where the mortgagee makes no claim to the fund to be distributed. A mortgage cause to which a receiver had been extended, who continued in receipt of the rents, Held not to be within the operation of the 81st General Order of 1843. CHANCERY REPORTS. 225 directed to reconsider his former report and in reconsidering his said report and reallocating the funds, to inquire and report whether anything was due for principal, and any and what sum for interest, on foot of a mortgage to James Sadleir of the 15th of April 1848, and to whom. The order under which the further report was made, and the circumstances which led to it, are reported vol. 12, p. 486, et ante. A bill was filed on the 4th of January 1848, by James Sadleir, to foreclose the mortgage, and an order was made extending the receiver to that cause ; but the cause was never set down for hearing. The mortgage afterwards became vested in Mr.,M'Dowell, the official manager of the Tipperary Bank, who filed a charge under the order of July 1861, in which he stated that there was due on foot of the said mortgage £1200 for principal, and £963 for interest, but that he had agreed to assign the mortgage to Henry Nixon and Arthur Browne, the petitioners, in the tenth matter (whose, claitn was 'on foot of an unredocketed judgment of. Hilary Term 1826), upon certain terms specified in the agreement which bore date the 14th of January 1862 ; and he accordingly made no claim to the funds in Court. The Master by his report submitted the Priority of the petitioner in the eighth matter, under a redocketed judgment of Michaelmas Term 1827 ; and the petitioner in the tenth matter under an runredocketed judgment of Hilary Term 1826, inasmuch as Mr. M`Dowell, having made that agreement, made no claim to the fund in Court to the credit of these matters, which,now amounted to 13782. 3s. Md. stock, and £298. Os. I'd. cash. Mr. Brewster and Mr. Exhant, for the petitioners in the eighth Argument. matter, argued, first-That the mortgage suit was not dismissed under the 81st General Order of 1843, as the receiver was still in receipt of the rents : Mara v. Tibeaudo (a). Secondly-The principle of In re Huthwaite (b), which decided that an unreÂdocketed judgment was not only void against a subsequent mortgage, but against an intervening redocketed judgment applied (a) 7 Ir. Eq. Rep. 556. . (b) 2 Ir. Ch. Bap. 54. , vox,. 14. 29 226 CHANCERY REPORTS. 1863. to this case, and gave priority to the redocketed judgment of Rols. Michaelmas 1827. In the case of In re' Lowe (a) it was held WOODRUM; v. that the principle applied, though the fund would not reach the GREENE. mortgage. That was substantially this case, for the agreement argument. had been entered into because the fund was likely to be insufÂficient; and there was no real dfference between a case where the mortgagee is not paid by reason of the insufficiency of the fund, and this case, where the mortgagee did not claim by reason of the insufficiency of the fund...