3 the fact of the drawing. St. Georgio v. Young, 8 Ir. Jur. 138. E. Where a party put his name on a bill at the in stance of the drawer, for the purpose of giving it currency, and afterwards took it up. Held, that notwithstanding that he never had possession of the bill until it had arrived at maturity, he was not precluded from suing the acceptor. Fulton v. Waterson, 8 Ir. Jur. 235, Q. B. BILL OF PARTICULARS, See PRACTICE. BOND, See PRACTICE. An obligor in a bond, with notice of the trust, appointed one of the two obligees, who were trustees, his executor, and devised his real estate to him, subject to his debts. The executor received sufficient personal assets to pay the bond debt, but wasted them. Held, that the debt was not extinguished, and might be enforced against the real estate of the debtor. In re Carew, 4 Ir. Chan. R. 112; s. c., 7 Ir. Jur. 1, P. C. BURGESS, See REGISTRY APPEAL. BUTTER TASTER, See OFFICE. CALLS, See RAILWAY COMPANY. CAPIAS AD SATISFACIENDUM, See EXECUTION. CAUSE PETITION, See PRACTICE. CERTIORARI, See POOR LAW. CHAMPERTY, See CONTRACT. CHANCERY REGULATION ACT, See PRACTICE. CHARGE, See JUDGMENT. MORTGAGE. Where a tenant for life of incumbered land has permitted arrears of interest to accumulate during the continuance of his life estate, and dies leaving arrears of rent due to him, the remainderman bas not any lien upon such arrears of rent, nor any right to require them to be applied specifically, by the personal representative of the tenant for life, in discharge of arrears of interest. Dillon v. Dillon, 4 Ir. Chan. R. 102, C. In a suit to raise the amount of a charge on lands, a sum paid on account of other demands by the tenant in tail of the lands to the owner of the charge under a mistake, cannot be claimed as a set-off. Fitzgerald v. Fitzgerald, 8 Ir. Jur. 39, R. A was tenant in tail of certain lands, subject to a charge of £5000 in favour of B. B was also entitled to a charge of £3000 upon other lands, of which A was owner, and from a misrecital in the deeds, this charge of £3000 was supposed to be valid, and A paid B the interest thereon until he discovered his error. B then instituted a suit to raise the £5000, and A claimed to set off the amount of the interest of the £3000, which he had thus paid by mistake, against the amount reported due to B on foot of the charge of £5000. Held, that A had no right to such set-off in that suit, the charge of £5000 being a charge upon the lauds, and A not being personally liable thereto, and that the set-off claim being only in the nature of a simple contract demand, he should proceed at law to recover it. Io. Also that the recital in the Master's order to the effect that the respondent was not entitled to recover back the sum of £428 18s. should be omitted from the said ordet, the Master not having autho rity to make such a declaration in that suit. 1b. M. P. paid off portions of charges for younger children affecting the inheritance of certain estates, and bad them assigned to a trustee for himself, and subsequently bequeathed them, as a part of his personalty, to his wife for life, and at her death, as she should appoint. His widow appointed them to her son J. P., who was tenant for life of the lands charged, having a power of appointment of the fee. J. P. subsequently exercised this power in his own favour, and paid off other portions of the same charges, which were released by the persons to whom the money was paid, leaving some portions still not paid, and he also created judgment debts of his own. Held, that the charges merged, there being no evidence of intention on the part of J. P. to keep them subsisting for his own benefit. Purcell v. Purcell, 8 Ir. Jur. 141, C. Held also that J. P. had not such an interest in keeping the charges on foot as would enable the court to assume an intention on his part to keep them alive. Ib. Held, that under the provisions of the 22nd section of the 3 & 4 Vic. c. 105, a judgment is a good charge upon an ecclesiastical benefice in Ireland, the provisions of the statute 13 Eliz. c. 20, not having extended to Ireland, and there not being there any corresponding enactment. Winter v. Homan, 8 Ir. Jur. 399, C. Tithe Rent.]-See TITHE RENT-Charge. CHARGE IN MASTER'S OFFICE, See PRACTICE. CHARGING ORDER, See FRAUD. The common law side of this court has not, under the Common Law Procedure Act, any jurisdic-· tion to make a charging order against stock, upon judgment in scire facias. Reg. v. Uniacke, 4 Ir. Chan. R. 492, C. As to right of equitable assignee of personal representative of the cognizee of a judgment to obtain a charging order in the name of such representative. Power v. St. George, 4 Ir. C. L. R. 11; s. c., 7 Ir. Jur. 31, E. The court must be informed of the interest of a debtor in a fund, sought to be charged under the 135th section of the Common Law Procedure Act before they will grant the order. Bolton v. Byrne, 4 Ir. C. L. R. 176; s. c., 7 Ir. Jur. 289, E. Certain lands were, by indeuture, vested in trustees for a term of 500 years, to raise £6000 for the payment of certain debts, the surplus, after liquidation thereof, to be paid over to one T. W. He died intestate, leaving him surviving a widow and children, one of whom, F. W., took out letters of administration. The lands having been sold, under an order of the Commissioners for Sale of Incumbered Estates in Ireland, realized £8000, which sum was now standing in the names of the said Commissioners, who had declared, by an order, that the said F. W., as a legal personal representative of T. W., was entitled to the sum of £3,600, being the balance after the discharge of the debts. A cause petition had been filed in the Court of Chancery by the widow, to administer the estate of T. W. and F. W. The administrator in his defence thereto, questioned the rights of the next of kin to participate unless they brought into hotch-pot certain sums received by them from T. W. In this cause petition no order had been pronounced. G. W., one of the children, had by deed assigned to the trustees of his marringe settlement, in pursuance of a Covenant therein contained to settle all property thereafter to be acquired, all his interest in the assets of his father, T. W. The court granted an order, on the motion of a judgment creditor of G. W., under the provisions of the 16 and 17 Vic. c. 113, s. 135, charging the interest of the said G. W, in the funds so standing in the name of the Commissioners, the interest of the next of kin being, as yet, unascertained and doubtful. Warren v. Wyse, 8 Ir. Jur. 27; s. c. 4 Ir. C. L. R. 235, E. A similar order, under similar circumstances, was refused by the Court of Common Pleas. Hatchell v. Wyse, 4 Ir. C. L. R. 286; s. c. 7 1r. Jur. 391, C. P. Where a judgment entered upon a bond and warrant of attorney, and charging order founded thereon were void as against the assignees of an insolvent by the operation of the 3 & 4 Vic., c. 105, B. 14, in consequence of the judgment having been entered in a court different from that in which the warrant had been filed, the court refused to set aside the proceedings generally, inasmuch as they had been originally regular, and were avoided only as against a particular party by reason of what had subsequently taken place. Doolan v. Reynolds, 8 Ir. Jur. 304, Q. B. Semble, that assignees have a personal remedy as against the creditor on his obtaining the fruits of such a judgment, or that they are entitled, in the distribution or the estate of the debtor, to the benefit of the creditor's charge under the judg. ment. 16. CHARTER PARTY, See CONTRACT. CIVIL BILL. As to whether an action will lie in a superior court upon a civil bill decree. Moffett v. Burrowes, 4 Ir. C. L. R. 297; s. c., 7 Ir. Jur. 275, C. P. Civil bill decrees for poor rate obtained after the 15th of July, 1850, though registered under the previous Judgment Registry Acts, will not, by virtue of the 12 & 13 Vic. c. 105, ss. 17 & 18, affect lands. Guardians of the Ballinasloe Union v. Lynch, 8 Ir. Jur. 93, R. A petition was filed to raise by the sale of lands the amount of civil bill decrees for poor rate, obtained since the 15th July, 1850, the same having been duly filed pursuant to the 12 & 13 Vic. c. 105, 8. 17, and an affidavit having been made by the Clerk of the Union, and duly registered pursuant to the 13 & 14 Vic. c. 29, s. 6, but it appearing that the affidavit was not registered till after the filing of the petition, the petition was dismissed with costs. Ib. CIVIL DEATH. The doctrine of civil death, in consequence of profession, as a monk or a nun, is not law at the present day. Blake v. Blake, 4 Ir. Chan. R. 349, C. COMMISSIONERS, See POOR LAW. COMMON LAW PROCEDURE ACT, See PRACTICE. COMPENSATION, See RENEWABLE LEASE HOLD CONVERSION ACT. With respect to the right of a purchaser in a suit instituted by a puisne creditor, who has been evicted from a portion of the purchased lands, to compensation out of funds which had been transferred from the cause in question to the credit of a suit instituted by a prior incumbrancer, the whole of the funds realized in the suit in which he had purchased having been thereby exhausted. Cooper v.Cooper, 4 Ir. Chan. R. 75; s. c., 7 Ir. Jur. 49, C. CONDITION, See DOWER. CONFIRMATION, See FINE AND RECOVERY. PRIORITY. CONSIDERATION, See CONTRACT. CONTRACT, See PARTNERSHIP. PRINCIPAL AND AGENT. SPECIFIC Performance. Where a tenant has been evicted from two out of three denominations of land, let at an acreable rent, and where the reserved rent exceeds the value of the land, which it is proved the tenant would not have taken but for the agreement as to the remainder, although the jury negative fraud or negligence on the part of the defendant, and no special damage is averred, the proper measure of damages Held also, that the principle laid down in Trip v. Armitage, (5 M. & W. 687,) applies only to actions of tort, not of contract. 1b. was held to be the difference between the estimated acreable value of the land and the rent which the tenant had been obliged and was bound to pay for the denomination in his possession. Fitzgerald v. A summons and plaint at the suit of a plaintiff Browne, 4 Ir. C. L. R. 178; s. c., 7 Ir. Jur. 90, E. who was defendant in a foreclosure suit instituted Where a charter party stipulated for the pay-for the recovery of a mortgage debt of £3,333, ment of freight, by the shippers, on 240 tons, whether shipped or not, on the right delivery of the cargo, and the plaint alleged a right delivery thereof, that the freight amounted to £180, and that defendants paid only £146, and claimed, as damages, the difference; a plea alleging a tender of 240 tons, that plaintiff only received and carried a portion, but refused to carry the remainder, which the vessel could reasonably have received, and that defendants paid for same portion, was Held, on demurrer, a good answer to the action. Clements v. Russell, 4 Ir. C. L. R. 318, s. c. 7 Ir. Jur. 102, Q. B. Where a plaintiff was evicted from lands which had been demised to him. Held, that in the absence of fraud or misrepresentation, defendant was only liable for the actual loss the plaintiff had suffered, not for damages for the loss of the bargain. Buckley v. Dawson, 4 Ir. C. L. R. 211; s. c., 6 Ir. 374, Q. B. after stating that a decree to account had been pronounced, in pursuance of which the parties had filed, respectively, charge and discharge, in the discussion of which, by the plaintiff's evidence, £2,490 with interest appeared to be due, averred an agreement by the defendant with the plaintiff "to render every assistance in his power to facilitate the progress of the suit by every possible ways and means, so as to enable the plaintiff to obtain a decree for the sale of the lands, &c., and also to render every assistance in his power in deducing a good and satisfactory title to a purchaser, and in procuring a report for £2,490 with interest;" and that the plaintiff was to take his report for that sum, with interest up to the date of the decree for a sale, but should agree to accept, in lieu thereof, that amount with £1,200 for all interest and costs, and hand over any surplus beyond that sum to the defendant; and that it was further agreed that in case the defendant or his attorney, &c., should, directly or As to the effect of qualifying the terms of a ten- indirectly, put or throw any obstacle in the way of der before the acceptance of the original proposal a sale of the lands, or in deducing good title therehas been communicated to the party making it, and to, or prevent the plaintiff from receiving the sum where the qualification is not acceded to. Guar-mentioned, or decline to assist in procuring the redians of Navan Union v. M'Loughlin, 4 Ir. C. L. port, or to facilitate the proceedings, then the R.; s. c., 7 Ir. Jur. 287, C. P. agreement was to be null and void." The summons and plaint then averred the full performance by the defendant in the suit [the plaintiff in the present action,] of his part of the agreement in the terms of it, and the nonpayment to him of the surplus, £1,770, as agreed, &c. Held, (Richards, B. dissentiente,) on demurrer, that the summons and plaint disclosed a sufficient consideration for the promise and agreement therein stated, and that the undertaking, on the part of the defendant, to assist in the promotion of the suit, and in relation thereto, was a good, valid, and sufficient consideration to support the alleged promise. Bodkin v. O'Kelly, 8 Ir. Jur. 98, E. the 66 A contractor had been induced by a railway company to execute a deed binding him to execute Boyne Viaduct" for £68,000, and to build the piers thereof on rock, by reason of a plan and drawing representing the work to be done having been exhibited to him by the railway company, and sigued as correct by their engineer in chief. The drawing so signed represented the rock on which the viaduct was to be built, at a maximum depth of 33 feet; and the drawing purported to be the result of actual borings and admeasurement, and was signed as such by the engineer. The contractor, at the time he executed the deed, believed the drawing to be correct, acted on the faith of it, and would not have executed the deed except for such representation. It subsequently appeared, however, that at the part of the river Boyne where pier "No. 14" was to be erected no rock existed at any ascertained depth, and consequently the contract was impossible to be performed, and the contractor became bankrupt. The assignees of the bankrupt brought an action of indebitatus assumpsit for work and labour done by the bankrupt for the defendants before bankruptcy. The defendants pleaded as a defence the contract deed; to which the plaintiffs replied fraud. Held, on demurrer to the replication, that although the plan and drawings were admitted on the record to be a fraudulent deception and misrepresentation, still that replication was bad in law, inasmuch as it was provided by the contract deed that the company were not to be responsible for inaccuracies in the drawings. Boylan v. Dublin and Belfast Railway Company, 8 Ir. Jur. 19, E. A memorandum which contained the terms of a contract for the unconditional sale of goods was made at the time of the negotiation between the parties, but was signed by neitlier. Subsequently the transaction was referred to in a letter written by the vendor to the purchaser, apparently relating to the memorandum, but insisting that the contract was conditional, and that the condition had not been performed. An action having been brought against the vendor for non-delivery, Held, (Lefroy, C. J. dissentiente,) that the memorandum and letter, taken in conjunction, did not constitute a sufficient note in writing within the Statute of Frauds. Haughton v. Morton, 8 Ir. Jur. 118, Q. B. B., wishing to transmit cattle to Warrington, in Lancashire, from Dublin, shipped the cattle on board the Chester and Holyhead Railway Company's steamer at Dublin, receiving at the time a "red ticket," entitling him to a free passage from Dublin to Chester and back, no other ticket being then given to him, nor did any general agreement appear to have been made as to the transmission of the cattle. After the cattle were placed in the trncks at Holyhead, the traffic manager handed to B. a "live stock ticket," stating "that the company undertook the conveyance of live stock free from all responsibility, as they would not be liable for damage, arising in any way whatever, nor hold themselves responsible to forward cattle by any particular train, or in time for any particular market." The fare for the carriage of the cattle was to be paid on B.'s return to Dublin. B. has brought his action to recover compensation for injuries to the cattle in transitu. Held, (Greene, B. dissentiente,) that the putting the cattle on board the steamer at Dublin, coupled with the fact that the cattle were conveyed to Warrington, afforded some evidence of a contract to convey as carriers from Dublin to Warrington, and that the judge was wrong in directing the jury that the only contract proved was a contract subject to the terms endorsed on the ticket. Byrne y. The Chester and Holyhead Railway Company, 8 Ir. Jur. 174, E. tunnel near his property shall be made in a certain way pointed out; thirdly, that they shall make a station at a certain place, &c. The company obtained their Act of Parliament, but never made the railway. Held, that the true construction of the contract was, that the sums of money were only to be paid in the event of the railway being made and the land in question used; for the first condition must be taken in connection with the other condi tions of the contract (all of which contemplated the event of the railway being made,) and the whole must be construed together as one contract. Pres ton v. Liverpool, Manchester and Newcastle-uponTyne Railway Company, 8 Ir. Jur. 217, H. L Money was advanced on the security of a bond, with warrant to enter judgment thereon. The pur. pose to which the money was applied was in car rying on a suit by a person claiming a wife's share of her deceased alleged husband's property, and the bond was also to stand as a security for further money advances for the same purpose. Held, that this contract was illegal, on the ground of mainten An action was brought against N. by M, allegance. Clarke v. M'Nally, 8 Ir. Jur. 225, C. ing that the latter had obtained a civil bill decree against S., whose goods had been seized; but that M. agreeing to forego execution, N. had undertaken to pay the amount. N. pleaded that he had given an IO U for the sum demanded, but upon the condition that he should not be held bound to pay more than a composition of five shillings in the pound upon the debt, provided that M. had therefore agreed to take a composition of that amount from S.: averring that M. had agreed to take such composition in lieu of the original debt, and that N. was always ready and willing to pay such composition, and had tendered the amount. The chief question at issue was, whether or not the plaintiff had agreed to accept such composition, and there was given in evidence in support of that issue a letter, which had been written by M. to S., in reply to an offer of composition of five shillings in the pound, by which M. agreed to accept such composition, provided he got sufficient security for its payment, and that certain casks of his should be either returned or paid for, and requiring S. to write at once if he chose to accept this proposition. Another letter in reply to this, written by S., was also given in evidence, in which he made no allusion to the security required by M., and to some other matters contained in the preceding letter. Held-That the construction of the letter of M., as to whether or not he had entered into the agreement stated in the plea was a question to be decided by the judge, and that he was not bound to leave it to the jury. M'Nab v. Nicholson, 8 Ir. Jur. 122, C. P. A contract was entered into between A on the one side and B, C and D on the other, that a match should be made between a mare which belonged to A and another mare the property of E; that the mare which won the greater number of beats should be the winner of the match; that the party nominating the mare so being the winner of the match should receive from the party nominating the other the sum of £100; and in case either side should fail in causing the horse nominated by him to run the match, the sum of £100 should be paid to the other party ready to run. The summons and plaint averred that B, C and D omitted to cause their nominee to run, and claimed £100 damages. Held, that the agreement so declared upon was void as amounting to a contract by way of wagering or gaming within the 8 & 9 Vic. cap. 109, s. 18, and that it was not aided by the proviso to that section, not being "a contribution or agreement to subscribe or contribute for or towards any plate, prize or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime or exercise." Irwin v. Burke, 8 Ir. Jur. 256, Q. B. By agreement between M'A. and the J. S. F. Co. it was witnessed that M'A. agreed to enter into the employment of the company in the capacity of buyer, salesman, and manager, for the term of three years from the 1st April, 1854, to the 1st of April, 1857. As salary he was to receive £130 per annum, and also a bonus of £20 per cent. on the nett profits of the business. In the event of a loss appearing upon the first year's trading of £150, such loss to arise, in the opinion of the directors, from his mismanagement, the directors were to be at liberty to put an end to the agreement by one month's notice. On the 31st March, 1855, the di rectors served a notice to the effect that they had P., the owner of an estate on the line of a projected railway, a Bill for constructing which was then before Parliament, entered into a contract with the promoters, whereby he assented to the railway being made on the following conditions-incurred loss through his misconduct, and the nofirst, that in case the company shall in this or any subsequent session obtain au Act of Incorporation, they shall pay to him £1,000 for all lands required by them for the due making of the railway, and £4,000 for consequential injury; secondly, that the tice proceeded, "They are obliged to give you one month's notice in accordance with your agreement, and they will not, therefore, require your services after this evening, paying you in cash the one month's salary required in lieu of your services." On the 2nd of April the directors expelled him was defended by the plaintiff at his own expense, from the shop. Held, in au action of assault against although the decree had been affirmed without costs, the directors, that the notice of the 31st March de- to contribute to the costs of defending the appeal termined the contract in some way, although wrong-out of the funds reported to them rateably, in profully; that the moment it was determined, the plaintiff was not justified in remaining, and could not maintain trespass against the company, although he was entitled to maintain an action for the breach of contract. M·Alister v.Ogle, 8 Ir. Jur. 313, C. P. CONTRIBUTION, See COSTS. Where one tenant in common of a leasehold has paid his share of the head rent, he has a right to obtain the aid of the court to compel the other to pay his proportion, but the jurisdiction ought to be exercised with great caution. Hungerford v. Whit ney, 4 Ir. Chan. R. 211, C. CONVEYANCE, See DEED. INCUMBERED CONVICTION, See CRIMINAL LAW. CORPORATION, See PUBLIC COMPANY. portion to the amount of their respective demands. Where issues directed in a forelosure suit to try the validity of release and receipt for a legacy had been tried twice, without the jury being able to agree, and had been sent down a third time for trial, when the legatee died, and his personal representative declined to proceed with the issues, and allowed them to be taken as confessed against him, the court refused to direct the costs of the issues to be paid by him out of the assets, but gave the peti tioner the costs of them along with his demand in the foreclosure suit. Campbell v. Young, 4 Ir. Chan. R. 394, R. A mortgagee in possession held not to be enti tled, in the account between him and the mortga gor, to the costs of an action for rent, which had failed by his default. Burke v. O'Connor, 4 Ir. Chan. R. 418, R. The costs of the appointment of a receiver under the 4 & 5 W. 4, c. 53, and the 3 & 4 Vic. c. 105, on a receiver's recognizauce, beyond the penalty of the recognizance, are chargeable against the receiver. Reg. v. Dillon, 4 Ir. Chan. R. 545. A cause petition by a judgment creditor prayed a sale of the lands of the conusor and an account. The respondent appeared at the first hearing and in the Master's office, without raising any objections to the proceeding as in a general cause petition until the final hearing. Held, that in the absence of any objection by the respondent the court would not, at this stage of the cause, deprive the petitioners of the costs incurred by them as of a general cause petition. Eyre v. Little, 8 Ir. Jur. 6; s. c., 4 Ir. Chan. R. 604, C. As to the personal liability of such of the individual members of a municipal corporation as may have concurred in the acts complained of, whether active therein or merely assenting, to exonerate and indemnify the rates and other properties of the borough against all unauthorized and misapplied loans and the interest thereof. Attorney General v. Corporation of Belfast, 4 Ir. Chan. R. 119, C. The Statute, 6 & 7 W. 4, c. 100, provided that no conveyance made by a municipal corporation before a certain day should be valid, unless in pursuance, inter alia, of some resolution duly entered in the corporate books of such body corporate before February, 1836. A resolution was en. Where trust funds, the subject of a settlement, tered in the books in 1301, that on any petition were lodged in court, and an application was made, being presented by their tenants for a renewal of a by a party to whom the dividends thereof had been lease, the report of the auditors be received at one assigned, for an order to draw the same, the trusassembly, and considered not sooner than the fol- tee will not be allowed his costs of attending on the lowing quarter assembly. H. had thereafter pre-motion, unless there is such difficulty in the case as sented his petition, and the report thereon was re- renders his attendance necessary. In re Dowden, ceived and considered on the same day, and a re- 8 Ir. Jur. 38, R. newal of his lease thereafter granted. Held, the lease was invalid, either because the resolution of 1801 was not a final and complete, but merely a deliberative resolution, or because the rule as to receiving and taking into consideration the report at different meetings had been violated. Jack v. Holmes, 8 Ir. Jur. 85, H. L. A commission of lunacy having been issued against B, a supposed lunatic, the jury found that he was sane. A second commission issued subsequently, whereon he was found to have been insane from a period long anterior to the date of the first finding. Held, that the petitioner, as next of kiu of the lunatic, was entitled to the costs incurred on the first commission. In re Clegg, 8 Ir. Jur. 87, C. Subsequently to the finding on the first commission, the lunatic committed an assault, and on the case coming before the judge of assize, the next of kin employed counsel and attorney to defend B on the ground of insanity; Held, that the petitioner was also entitled to these costs. Ib. Where a cause petition is set down for hearing in the Chancellor's list, and allowed to be struck out by consent, it cannot be reinstated by consent. |