« EelmineJätka »
murrer-Held that the pendency of the Indict- to sending up another. Queen v. Burnby, (5 Q.B, ment was no answer to the Information.
Rep. 348); King v. Webb, (3 Burr, 1468); King v. Like plea to second Information.--Replication that Alexander, (Archbold Crim. Pl. 72–8; 1 Chitty there was no indictment pending. Held that the Crim. law, 461); King v. Doctor Purnell
, (1 W. Bi. plea being bad, an informality in the replication | 37.) Even if a plea of indictment pending is good, the could not be taken advantage of.
nolle prosequi puts an end to any further proceedings The demurrer by the Crown to the plea concluded
upon the indictinent. In the year 1801 a nolle propraying Conviction, and the replication prayed sequi was
entered by the Attorney-General Lane, final Judgment. Held that there was no discon
and an information filed for the same offence, also tinuance.
in 1812, Plumer, Attorney-General entered a nolle
prosequi upon an ex officio information, and filed Semble-There can be no discontinuance by the another information for the same offence. If the Crown.
king, by his Attorney-General, enter a nolle proseIndictments for the publication of a seditious libel qui, he cannot after proceed. King v. Pickering, in the form of a letter to the Lord Lieutenant, and (Hardress 83); Goddart v. Smith, (1 Salk. 21, for the publication of a certain article in the paper S.C.; 6 Mod. 261 ; Hard. 126; 1 Sand. 207, note.) called the United Irishman, entitled “ Striking This plea is so framed that it is doubtful whether Terror.” After the bills had been found by the it is in bar or abatement. Grand Jury, Pleas in abatement were filed, " That Holmes, with Sir C. OʻLoghlen, in support of the one of the Grand Jury was a Town Councillor, and plea. The question in this case is whether the Ata disqualified from serving on any juries except Com-torney-general can proceed by ex officio information missions of Assize, and Gaol Delivery.” The indict- having already proceeded by indictment, whether he ments were then withdrawn by the Crown, and has not thereby lost his privilege, this demurrer is ex officio informations filed for the same offences. also bad in form, it concludes in bar while the plea Plea to the first information, That the Court ought is in abatement, that is a discontinuance, and the mot to take cognizance of the information, in as Crown is therefore out of court. The demurrer much as on the 15th day of April last, a bill of instead of praying judgment of respondeat ouster, indictment for the same offence had been presented concludes by praying judgment, and that the trato the Grand Jury and duly found, that the traver verser may be convicted; this amounts to a disconser had been arraigned upon this indictment and tinuance. Carter v. Davis, (1 Show, 255, S.C.; proceedings had thereon, that on the 26th day of 1 Salk, 218; 2 Sand. 210 N. 2; Com. Dig. Pl. w. April the Attorney General came into Court and 2); Alice v. Gale, (10 Mod. 112); Bowen v. Shapentered a Nolle Prosequi, to that indictment, that cott, (1 East. 542) Biss. v. Harcourt, (Carth. 187, John Mitchel, against whom the indictment had 59, S.C. 3 Mod. 281.) The rule is the same in been found, was the same person against whom the both civil and criminal cases, and where there is a information had been filed, and that it was the same discontinuance no judgment will be given on the offence for which the indictment had been preferred demurrer. Cochrane v. Fitzpatrick, (8 Ir. L. Rep. and the information filed.Demurrer by the Crown. 187.) As to the form of the plea, whether the subJoinder in demurrer-To the second information. stance is in bar, or abatement, the Court must hold Plea in abatement, stating the pendency of the in- it to be in abatement, if so pleaded. Alice v. Gale, dictment. Replication by the Crown, that on the (10 Mod. 112); Medina v. Stoughton, (1 Ld. Raym. 26th day of April a Nolle Prosequi, had been en 593.) It is the commencement and conclusion of a tered to the indictment, and further proceedings plea which determine the nature of it. Godson stayed thereon. Demurrer: that the Attorney v. Good, (6 Taunt, 587.) The matter of this plea General did not by this replication traverse the is in abatement, “That cognizance ought not to be matters set forth in the plea, nor plead in confession taken of the matter unless by indictment by the or avoidance-Joinder in demurrer.
oaths of twelve men,” it is the same as a plea of J. Perrin, in support of the demurrer by the privilege. Chatland v. Thornley, (12 East, 544.) Crown to the first plea.—A plea of indictment pend-An ex officio information is not so constitutional ing is no plea to an information for the same a proceeding ag an indictment, and there is no preoffence, even if it is a good plea the indictment has cedent of an Attorney-general proceeding by a good been put an end to by the nolle prosequi, (2 Hale, and valid indictment, and afterwards filing an inforP.C. cap. 34, s. 1,) which has the effect of quashing mation for the same offence, for in the Rattle and an indictment as well as an information, (Com. Bottle case the bills were ignored, and the AttorneyDig. information A; Bac, Abr. information A.) General then proceeded by information. (Hawkins, cap. 26, sec. 63,) lays it down, that “a Attorney-General in reply. The cases relied suit on a penal statute actually depending may be upon by the counsel for the traverser are all civil pleaded in abatement,” that alludes to qui tam infor-casės founded on that in Shower, and do not apply, mations only, Sir W.Withipole's case, (Cr.Car. 147), no matter what the prayer of the demurrer is, the Swan v. Jeffries, (Fost. 105-6. S.C., 18 St. Trials, Court will give the right judgment, but the demur1198); Reg. v. Goddart, and Carleton, (2 Lord rer concludes properly, and is according to the Raym. 920.) In a prosecution by the Crown the forms which have been in use from the earliest Court will not interfere, the Attorney-general can times. (1 Went. pl. Abatement, 24.) In the case enter a nolle prosequi, and need not come into court of the Queen v. O'Connell there was a demurrer, for that purpose. King v. Strachan, (3 Burr. similar to the present, and the prayer was for judg1565); King v. Mayor of Plymouth, (4 Burr. 2090.) ment of conviction, a nolle prosequi has no greater The pendency of a former indictment is no bar effect than a non suit which does not prevent the
Crown froin proceeding for the same offence. God-ing before any court, except upon indictment
, or dard Smith, (6 Mod. 262.)
presentment, which he is ready to verify, and prays J. O'Hagan, in support of the demurrer to the judgment. To this plea the crown has demurred replication of the Crown.-In this case a plea in that the matters averred thereby are not suficient, abatement has been filed; the Attorney-general by and concludes by praying judgment of conviction the form of the replication, has treated the plea as This is objected to as informal, and a discontinuone in bar, and has thereby worked a discontinu- ance. The Attorney general contends that the plea ance. Besides the plea avers “that the indict- is bad, and if so, we are bound to give judgment ment is still pending" and this averment is nei according to the whole right. The question is ther traversed nor confessed, nor avoided. Bourne whether a plea of indictment pending is a bar to an v. Taylor, (10 East. 189); Taylor v. Cole, (3 T. information for the same offence. Now there is R. 292.) The replication by the Crown is also neither the authority of any case, nor the opinion of bad as being argumentative. It states the in- any judge in support of this ; on the other hand, dictment is not pending as a nolle prosequi had there are authorities which shew that this plea is bad. been entered. If the Attorney-general means in SirW.Withipole's case, (Cro. Car. 147, it is laid to deny the pendency of the indictment, he should down that this is no cause of plea, for when a traverhave replied Nul Tiel record. The replication is ser is not acquitted, or convicted he may be arraigned, therefore bad in that respect. Bourne v. Taylor, and there are several other authorities to the same (10 East. 189); Knight's case, (2 Ld. Raym. 1014); effect, (2 Hale.) In Hawkins, c.34, Pleas in Abate. Green v. Watts, (1 Lord Raym. 274); Green v. ment, there is a most explicit statement of the law; Purdon, (2 H. and Br. 277 ; 8 Cobbett's, St. Tr. the word information in the passage cannot mean 234–50); Gould v. Lasbury, (1 Cr. M. & R. 254.) informations for a misdemeanour, for qui tam inforAn information never can be filed pending an in- mations are meant, and the chapter upon them is dictment for the same offence, and the indictment referred to, and there can be no manner of doubt having been commenced, and being a higher pro- that this passage is a distinct authority against this ceeding should have been proceeded with
plea. The case of Swan v. Jeffrey, (Foster's C. Attorney-General and J. Perrin, contra.--In Law, 104), decided in 1701, was an indictment (4 Chit. Crim. Law,) there is a precedent of a for murder; a second was found, and to it, was replication similar to the present. The Crown could pleaded the pendency of the first ; upon demurrer not have pleaded Nul Tiel record, as upon the trial the court held that the plea of autrefois arraign the record could have been produced; besides, even was po plea. In the case of the King v. Stratton, if the replication is bad, we are entitled to fall back (Douglas, 239,) it was held that the pendency of on the plea, and if that cannot be supported we are another indictment for the same offence cannot be entitled to judgment on the whole case, and the pleaded, as it may be in an information for penalauthorities already cited are sufficient to show that ties. Without doubt the authority of the priua plea such as this is no answer to the information. ciples laid down in Hale, Hawkins, and Foster Withipole's case is decisive on that point.
show that this plea is not maintainable. There OʻLoghlen, in reply.--The plea is in abatement, is an objection taken to this demurrer, that the plex and the replication in bar, that is a discontinuance; is in abatement, but that the demurrer concludes there is a double discontinuance by the Crown, by by praying judgment, not of respondeat ouster, the replication in this case, and by the demurrer in but of conviction, and the case of Biss v. Harthe other. The Attorney-general should have either court, (3 Mod. 281) is relied on. Now it is to be ola traversed, and introduced new matter with an absque served, that all the cases in support of this propohoc, or confessed and avoided, but neither of these sition are cases of civil actions. It is plain that courses has been taken. This indictment is in full a party pleading in abatement can call for such force notwithstanding the nolle prosequi. King v. judgment only as the plea demands; but the quesBenson, (i Sid. 420.) Therefore the plea is good ; tion in this case is, whether the prayer of judgment a nolle prosequi has the effect of putting an end to of conviction, in the first case upon the demurrer, an information, but not to an indictment. The and in the replication in the other, is a discontinuAttorney-general can only let the party go without ance. I question whether in pleading there can be a day, the effect of which is that new process must any discontinuance on the part of the crown; but be issued before the party can be proceeded against as to whether it is, or not, there is no case to show Goddard v. Smith, (6 Mod. 262.) In cases of ap. that it is; there are two to show that it is not. la peal, the pendency of one appeal is a complete answer Hardress, 504, in a quo warranto it was moved in to another. (Hawk 23, sec. 126.) It is laid down arrest of judgment that there had been a discouthat au indictment shall not abate, for it is the king's tinuance, for issue was not joined by the crown, and suit. King v. Robinson, (1 W. Bl. 542.) itis laid down that before judgment there is no discou
May 10.-BLACKBURNE, C.J.-In this case an in tinuance in the king's case, (Com. Dig. Tit Pleader, formation was filed by the Attorney-general. A plea W.2.) But supposing there may be a discontinuance, has been put in, to the effect that the Court ought not we are to consider how the precedents and authorito take cognizance thereof, because an indictment was ties are on that subject, and I find that demurrers preferred against the traverser in this court, for to pleas in abatement always conclude with prayer the same offence, and after certain proceedings the of final judgment. Queen v. O'Connell, King v. Attorney-general entered a nolle prosequi ; that the Taylor, (3 B. & Cr. 52 ; 2 Saund. 210, note m.) traverser is the same person who was indicted, that these aużhorities are quite decisive; we are bound the offence is the same, and that according to the to give judgment on the whole record in favour of law of this realın he ought to be free from answer- the crown. In the second information the defendant
demurred to the replication. In this case also, we May 30.-J. D. Fitzgerald, Q.C., and P. Smith consider there ought to be judgment for the crown. for the plaintiff, contended that the count was suffiAs to the form of the replication, it is manifest cient. Bass v.Clive, (4 Camp.78, S.C. 4 M.& S.13.) that is of no moment, if the plea is bad. It is to The declaration here is at most, ungranımatical, be observed this plea alleges matter on which issue and that is not sufficient to vitiate it
. O'Connor v. may be taken ; and I apprehend the Crown is en- Fiely, argued in this court on the 13th of June, titled to pray final judgment, as it may be so en 1845.) In that case the declaration was by indorsees titled if issue were joined. Medina v. Stonton against acceptors, and the promise was laid in these (Lord Raymond, 594); Biss v. Harcourt, (Carth. words—"and the defendants promised the plaintiffs 137.) Judgment was there given for the defend - in the plural) to pay him.” The court overruled ant, because the plea was good, in this case it the demurrer. There is no repugnance here; it is is bad. In Bonner v. Hall
, (Lord Raymond, consistent with this averment that the pleader fol338,) in the replication judgment was demand lowed the words of the instrument, and that Hugh ed for the plaintiff, and damages; it was admitted Ferguson was the sole member of the firm of Ferthe plea was ill, and being so, the replication guson & Co. The case of Ball v. Gordon, (9 M. was attacked on the ground of discontinuance, and & W.345,) has no application to this case ; besides the case of Biss v. Harcourt relied on; but Lord it was overruled in Tigar v. Gordon, (9 M. & W. Holt said, “This case differs from Biss v. Har. 346.)* court, for there the plea was good, and then when Rollestone contra..Bass v. Clive does not apply. the plaintiff replied new matter, he should have (Pigot, C.B.-The question, there, did not turn made his conclusion accordingly; but where the upon the pleadings. Pennefather, B.-On the plaintiff traverses the plea in his replication, and supposition that Hugh Ferguson was the sole menioffers an issue, he way pray judgment de debito et ber of the firm of Ferguson & Co., there is no inde damnis, because if it be tried, peremptory judg- consistency, for he might have drawn the bill as ment ought to be given, but in this case the first alleged, and made it payable to the firm, in which fault is with the defendant, for the plea is ill." view the use of the plural would be correct.) But Every word of this judgment is applicable to the even on that supposition the declaration is insuffipresent case ; the first fault is with the defendant, cient; for an instrument by oue member of a firin as the plea is bad. On all points of this case, passes no property, unless made in the name of the therefore, it is our opinion, that by the authorities firm, of which there is no averment. all doubt is removed, and the traverser must plead Pigot, C.B.--It is a rule of pleading, that amforth with.
biguous expressions must be taken most strongly
against the pleader; but there is another rule equally EXCHEQUER OF PLEAS.
well established, that if the ambiguity can be ex
plained away by reasonable intendment, the Court REILLY V. JESSOP-May 26 and so.
will adopt that intendment. My brother, PennePleading—Bill of Exchange—Indorsement by father, has suggested a view which removes the firm.
apparent inconsistency. Judgment for Plaintiff. Declaration by the indorsee of a bill of exchange against the acceptor. The first count averred “for
Jones ». Pupe, June 14. that whereas Hugh F., carrying on business under the name, style, and firm of F. & Co., made Demurrer-Indorsement on bill—No time. his bill of exchange in writing, and directed the Declaration on bill of Exchange—The Indorsesame to the defendant, and thereby required the
ment stated “the said defendant indorsed to the defendant to pay the DRAWERS, or THEIR order, “plaintiff;" omitting " then and there."-Held, on two months after the date thereof; and
special demurrer, that time being a muterial travthen proceeded to aver that the said H. F. then
ersable fact, the omission of it vitiated the declaand there indorsed the same to the plaintiff ration. Held sufficient on special demurrer.
Assumpsit. This was an action brought by the ASSUMPSIT.-The first count of the declaration was indorsee of a bill of exchange against the indorser. as follows : “ For that whereas heretofore to wit, on The averment of indorsement was as follows: “And &c., at, &c, Hugh Ferguson, carrying on business the said A. B. then and there indorsed the same to under the name, style, and form of Ferguson & Co., the defendant, and the said defendant indorsed the made his bill of exchange in writing, and directed same to the plaintiff" Demurrer—that there was the same to the defendant, and thereby required no venue, or time alleged when and where the the defendant to pay the drawers, or their order, defendant indorsed the bill to the plaintiff, and also £--two months after date thereof,” &c. The that the said averment deviated from the precedent averment of the indorsement to plaintiff was as fol- and forms prescribed by the judges, lows: " And the said Hugh Ferguson then and there Curtis for the demurrer. There is no venue indorsed the same to the plaintiff,” &c. Special de laid. (Pennefather, B.-If there is a venue in the murrer to this count on the ground of its being margin it suffices.) Waiving that ground of derepugnant and insensible, and disclosing on the murrer, the declaration is bad, as not laying any face of it no sufficient cause of action.
time. This is a material traversable averment, and Rollestone for the demurrer.
must be laid with day, month, and year. R. v. The court having observed that there was no Hollund, (5 T. R. 607); Comyn's digest pleader, junior counsel retained on behalf of the plaintiff, declined to hear the case argued.
• Before Pigot, C.B. and Fennefather, B.
c. 19; Ring v. Roxborough, (2 Cr. & J.418); Bow-|(Cro. Car. 202) shows very strongly the stringency dell v. Parsons, (10 East. 359.)
of the rule. That case was in Trover, and the Lawson with Harris in support of the declara- Court held that the finding, as well as the convertion. We do not dispute the general proposition sion must be laid with time. That case is as fresh contended for on the other side ; but there is a time now as it was at the period of its decision. But sufficiently alleged here. The word “there" in the there is a distinct authority in this country, in supaverment that drawer indorsed the bill to defend- port of this demurrer--the case of Potter v. Ryan ant, may be carried on so as to overrule the aver: in the Common Pleas. Looking to the averments ment objected to. The two averments are coupled in that case, and the judgment, no two cases can with “and”--the nec non of the old pleaders. (Pigot be more like than that and the present. But it is C. B.-How do you distinguish this case from that said that Potter v. Ryan has been overruled by the of Potter v. Ryan? (Smythe 22) This case turns later case of Barden v. Magennis, (6 Ir. Law Rep. on the grammatical construction of the sentence. 7.). The later decision turned on the omission of Counsel also referred to (Comyn's digest pleader, “place," and followed the case of Welland . c. 19); Denison v. Richardson, (14 East. 291); Brown, (1 Hayes & Jones, 46.) Demurrer allowed. Skinner v. Gunton, (1 Saund. 229 a); Harden v. Magenis, (6 Ir. L. Rep. 345.) As to the second ground of demurrer, there is no form prescribed
Vance AND ANOTHER, EXECUTORS OF by the judges for indorsee against indorser. (Pen
Falls, v. BRASSINGTON. nefather, B.--We do not go so much on the ground Scire Facias by the Executors of the Cognisee
, The of its deviating from the judge's forms, as of its
defendant was called on to shew " wherefore the violating the rules of pleading.)
plaintiffs should not have execution against him," Cur. adv. vult.
according to the form of the recovery, without an PIGOT, C. B. now delivered the judgment of the
allegation that the plaintiffs did so “as executors;" Court.-We are reluctantly obliged to give judg.
Profert of Letters Testamentary was made. Held ment for the defendant in this case. The plaintiff
sufficient on special demurrer. derives title as indorsee of a bill of exchange, and Scire facias.-On a judgment in debt by the Exethe averment in the declaration is, “ And the said cutors of the Connsee against the Conusor, the scire A. B. then and there indorsed the same to the facias followed the ordinary form. The statement defendant, and the said defendant indorsed the same objected to being as follows:“ And the said plaintiffs
, to the plaintiff.” In the latter averment, neither after the death of the said conusee, duly proved said time or place are laid. No allegation of place is will in the Court of Prerogative in Ireland, and ob necessary, but this being a material traversable fact, tained probate thereof, yet execution of the said must be laid with certainty of time. It is too late judgment for the debt and damages aforesaid as yet now to question a rule, which has prevailed so remains to be done, as from the said Andrew and long, and has been recognised in all the authori- John, executors as aforesaid we have received inforties from Cro. Jac. and Cro. Car. to the most mation. And we being willing that what is right and recently reported cases. So stringent were the just in our court should be done, and a due execurules, as to time and place, that the legislature tion, command you, as we formerly commanded you, had to interfere, and the statute of Jeofails became that by honest and lawful men of your bailwick, you necessary to relax them. By the statute of Anne make known to the said defendant, that they may the strict rule as to place was in part abrogated, be before our Barons of the Exchequer at, &c, on and as a further modification of these rules, the &c., to shew if she have or know anything to say for " then and there" were let into the averments of herself wherefore the said Andrew and John ought the pleader. Recent decisions have sanctioned the not have execution against her for the debt and daomission of “place,” because of the venue in the mages aforesaid, according to the form of the aforemargin, but no similar indulgence has been ex- said recovery, &c.,” concluding with profert of the tended to the omission of time; on the contrary, Letters Testamentary. Special demurrer
, on the the very recent cases of Ring v. Roxborough, and ground that the defendant was called upon to shew Bowdell v. Parsons, referred to in argument, shew cause why the plaintiffs should not have execution the disinclination of the courts to deviate from this of the said debt and damages in their own right rule. But it is said that we are at liberty to con- without naming them as executors. tinue the "then and there” in the preceding aver Butt, Q.C.with Mills, for demurrer-The objecment, and incorporate them with the allegation tion on which we rely is that the scire facias does complained of; and to sustain that view counsel not contain any proper averment to sbow that the has referred us to a case in Comyn's digest pleader, plaintiffs bring the writ in their representative capac. 19, p. 47. That was a case of trespass, quare city. The scire facias must be construed as a declausum fregit, and upon looking at it, it seems im- claration, Malcomson v. Gregory, (1 H. B. 15.
) possible to apply that construction here. In tres. Laverty v. Duffin, (Al.& Na. 29.) In a declaration pass all the statements are coupled with the con- by executors the omission of "as” is fatal, Henshall tinuando, and are thereby referred to the same v. Roberts, (5 East. 150.) An. (1 Dow. P.C. 97. and point of time, and that was the decision of Webb notes,) Exors. of Frevor v. White, (1 Dow. N.S. v. Turner, (2 Strange, 1095.) The judgment in 586)." In debt on judgment by the executor of that case indicates the principle of that class of connusee, the executor must show that he sues in his authorities. The different averments in that case representative capacity, the judgment being a duty cannot be severed, as they must necessarily be in which accrued in the testator's life-time. Counsel the present. The decision in Wilson v. Chambers also referred to (Ferguson's forms, 352.)
Shegog, contra. One case only need be referred to for raising and paying the portions not having aras maintaining the scire facias, Hanyngton v. Cair- rived, and for H. Corr contended that no sale subject nes, (5 Ir. L. Rep. 333,) where precisely the same to an incumbrance could be made consistently with objections were taken and overruled. (Pennefather, the policy of the 3 & 4 Vic. c. 105, s. 22. B. That case appears to have been rightly decided, Walter Burke for defendant, Maria Corr; the plaintiffs could not sustain the scire facias, ex- Burroughs for Lord Lorton. cept as executors, and in making profert they esta F.Walshe for plaintiff, submitted to redeem them. blished their title.)
LORD CHANCELLOR.- The plaintiff has admitted Butt, in reply-It has been held not to be suf- he can have no relief against the younger children. ficient for a plaintiff to term himself executor, it I must dismiss the bill against them. The next must appear that he sues as executor, McSweeny v. question is, can the estate be sold subject to this Longfield, (2 H. B. 194.)
charge upon it ? I have no difficulty, in point of PENNEFATHER, B.*—A scire facias is only to be principle, in selling the estate subject to this charge. regarded as a declaration in a qualified sense—the We all know that it is the every-day practice out object of it is to bring a third party into privity with of Court, to buy estates subject to incumbrances ; the record of the judgment. The form here pur- why should they not be so sold, under the orders of sued has had the sanction of half a century, and it the Court ? As a matter of prudence, a sale of would be most injurious to the cause of justice to this sort may be questionable, but is not impractiadopt the strict analogy of declarations in writs of cable. The plaintiff is not entitled to redeem the scire facias. The demurrer must therefore be over-charge in favour of the children, he must therefore ruled.
sell the lands comprised in the settlement of 1797,
subject to that incumbrance.
ROLLS COURT. Practice3 & 4 Vic. c. 105–Sale subject to IN THE MATTER OF THE COMMISSIONERS OF WIDE incumbrances.
STREETS, CORK, AND THE ACT OF 3 Geo. 4, In a judgment creditor's suit under 3 & 4 Vic. c. c. 85.-June 14, and 16.
105, a sale may be decreed, subject to incumbrances, Statute of Limitations-Mortgagor-Acknowledgwhich plaintiff is not entitled to redeem.
ment in writing The bill in this cause was filed to raise the amount An acknowledgment by the Mortgagor, in writing, due on a judgment of Easter Term, 1822, obtained
of the payment of interest on a mortgage, and by the testator of the plaintiff, against the defendant,
not signed by him. Held sufficient, within the 40th Henry Corr. It prayed an account and sale, offer
sec. of the 3 & 4 W. 4. c. 27, to take the case out ing to redeem such incumbrances as the Court should
of that statute. think proper. It appeared that by an indenture of this case came before the court on objections to the the 27th of Aug. 1797, Henry Corr had conveyed Master's report. a portion of his lands to trustees, to the use of him- ture of the 1st of Feb. 1815. Robert Creed mort
The facts were, That by indenself for life, and after his decease upon trust to provide an annuity for his intended wife, who was dead gaged certain preinises in the city of Cork to Alicia at the time of filing the bill, and by sale or mort Creed for £500, with interest at 6 per cent. Integage to raise the sum of £1000 for the children, if rest on the mortgage was paid by the mortgagor, up any, of the then intended marriage, to be paid to to the 1st day of Feb. 1827, which appeared by a them in such shares as Henry Corr should appoint. but not signed by him, which was as follows: "On
memorandum in the handwriting of the mortgagor, It also appeared that some of the defendants held incumbrances which affected the entire lands of H. the lst of Feb. and 1st of Aug. in every year, I pay Corr, amongst them Lord Lorton, who had a judg- interest on £500, the above is paid to the Ist of Feb.
sister Alicia the sum of £15, being the half year's ment of Trinity Term, 1827, and Maria Corr, who 1827." Alicia Creed died on the 8th of June, 1829, had one of Michaelmas Term, 1810, both against Henry Corr. The defendant, Henry Corr, by his having devised the mortgage to the petitioner, Elizaanswer, and at the bar insisted on the benefit of the The Commissioners of Wide Street in Nov. 1846.
beth Creed, save £100 bequeathed to the mortgagor. saving in favour of creditors and purchasers, contained in the 3 & 4 Vic. c. 105, s. 22. The same ob- being desirous to purchase these premises, empan. jection to the bill was also taken by the children the 3 Geo. 4. c. 85, who found the value of the pre
a jury to ascertain their value, as directed by entitled to the charge of £1000. Christian, Q.C. and F.W.Walshe for the plaintiff. mises as comprised in the Indenture of Ist of Feb.
-, and that the claimants for Kirwan v. Portarlington, (8 1. E. R. 593,) does 1815, to amount to £not apply, as there was there no offer to redeem. same were the petitioner in respect of the said mortEven if not entitled to redeem, Carlon v. Farlar, gage, and the mortgagor. The mortgagor by his (8 Beav. 525,) decides that the defendant's interest foot of the mortgage for principal
, or interest since
discharge said he had never made any payment on may be sold, subject to incumbrances. Neate v: Feb. or March, 1826, or for two years previous to Marlborough, (3 M. & C. 407,) Crofts v. Poe, (1 the death of Alicia Creed, and that all persons were Jones, 5.0.)
Hughes, Q. C. for the defendants, the children of barred by the statute of Limitations from recoverHenry Corr, objected to being redeemed, the time ing said mortgage, and that no acknowledgment in
writing of the right to said mortgage was given by * Pigot, C. B., Richards and Lefroy, B.B. were absent. I him, or his agent to any person entitled to receive