1855. Rolls. TRESSILIAN V. CANIFFE. Argument. not a charge on the lands, no elegit having being sued out on them in the lifetime of the conusor: Neate v. The Duke of Marlborough (a); Barnewall v. Barnewall (b); Fitzgerald v. Dalton (c); and were not made charges by the 3 & 4 Vic., c. 105, against the respondents M'Creight and wife, who were purchasers under the settlement of 1809, and whose rights were saved by the proviso at the end of the 22nd section of that statute. As the mortgagee had notice of the arrangement that the judgments should be thrown on the Bernard moiety, the Court should have administered equity between the respondents, so as not to give any relief against the Baldwin moiety, at least until the Bernard moiety proved insufficient to pay off the judgments: Hamilton v. Royse (d). On the frame of the suit for the receiver pending a sale in the Incumbered Estates Court, they cited Herbert v. Greene (e). In support of the Master's order it was contended, as to the first point, viz., that the judgments were not charges on the Baldwin moiety, that it had not been raised by the discharge, or at all, in the Master's office; that the Court was in substance now administering the real assets of the conusor, and in an administration suit judgments were always paid under the law as it stood before the 4 & 5 Vic., c. 105, although they had not been made charges by the suing out of an elegit during the lifetime of the conusor. This was not a proceeding to sell the lands. As to the equity relied on to throw the judgments on the Bernard moiety, they argued that, although the petitioners had notice of the arrangement between the owners of the two moieties, they were not parties to it, nor were they bound by it. They cited Kirkwood v. Lloyd (f); Puxley v. Hutchins (g); Bennett v. Briscoe (h); Murphy v. Sealy (i). June 11. Judgment. The MASTEr of the Rolls. A motion has been made in this case on behalf of the respondents (a) 2 M. & Cr. 407. (b) 3 Ridg. P. Cas. 61. (i) 1 Ir. Chan. Rep. 228. William M'Creight and Mary M'Creight his wife, by way of appeal against so much of the order of A. Lyle, Esq., the Master in this matter, bearing date the 21st of April 1855, as orders the appointment of a receiver over the undivided moiety of the lands of Glonmacarney, Knockagarrane and East Gully; and that said order may be varied by limiting the appointment of the receiver to the undivided moiety of said lands, the property of the respondent John Caniffe, as assignee of William Banfield Bernard, and to the lands of Knockamortealey, his exclusive property. The facts of the case are as follow:-In Trinity Term 1803, a judgment was obtained in the King's Bench against William Banfield, since deceased, on a bond, in the penalty of £400 late currency. In the same Term a judgment was obtained in the said Court against the said William Banfield, on a bond, in the penalty of £80. In Trinity Term 1805, a judgment was obtained against the said William Banfield, on a bond, in the penalty of £199. 19s. The principal sum secured by those three judgments was £339. 19s., late Irish currency. The three judgments afterwards became vested by assignment in George Perrott. William Banfield, the conusor of the judgments, was, at the time of the rendition of the judgments, seised in fee of the lands of Glonmacarney, and for lives renewable for ever of the lands of Knockagarrane and East Gully. William Banfield died in the year 1806, leaving a son and four daughters; but the son and two of the daughters having died unmarried and intestate, the said lands vested in the two surviving daughters of William Banfield, viz., Anne Banfield and Frances Banfield. Anne married a person of the name of Bernard, and Frances a person of the name of Baldwin: and it will be convenient, in considering this case, to call one moiety of the three denominations the Bernard moiety, and the other moiety the Baldwin moiety. The object of the appeal is to show that the receiver ought not (at least for the present) to be appointed over the Baldwin moiety, the beneficial interest in the principal portion of which is now vested in the appellants William M'Creight and wife. The Bernard moiety of the three denominations vested in Jonas 1855. Rolls. TRESSILIAN v. CANIFFE. Judgment. 1855. Rolls. TRESSILIAN v. CANIFFE. Judgment. Bernard, the son of Anne Bernard, and Jonas was seised in fee of a fourth denomination called Knockamortealey; in the latter denomination the appellants claim no estate or interest. Jonas Bernard by his will devised the Bernard moiety of the three denominations and the entire of the fourth denomination, of which he was exclusively seised, to William Banfield Bernard, who, on the death of Jonas Bernard, became seised thereof; and being so seised, a mortgage was executed, bearing date the 28th of July 1843, between the said William Banfield Bernard, of the first part, Anne Bernard (the widow of Jonas), of the second part, Elizabeth Bernard (daughter of Jonas), of the third part, the petitioner Elizabeth Tressilian, of the fourth part, and Dorothea Tressilian, of the fifth part; and by that deed William Banfield Bernard, in consideration of the sum of £1000, conveyed the Bernard moiety of the said three denominations, and also the lands of Knockamortealey, to the petitioner Elizabeth Tressilian, subject to redemption; and a portion of the £1000 having been applied to pay off the three judgments of 1803 and 1805, those three judgments were, amongst other securities, on which no question arises, assigned to Dorothea Tressilian as trustee for the petitioner. William Banfield Bernard, one of the respondents, was afterwards discharged as an insolvent debtor, and the respondent John Caniffe was appointed his assignee. The petition, having stated the above facts in relation to the Bernard moiety of the three denominations, then makes the following statement as to the Baldwin moiety : "That Frances Banfield, the other surviving daughter of the said William Banfield, in the year 1809, intermarried with James Baldwin, Esq.; and by indenture of settlement, executed upon the occasion of said marriage, bearing date the 15th of July 1809, the said Frances Banfield conveyed her said moiety (i. e., what I have called the Baldwin moiety) of the said lands of Glomnacarney, Knockagarrane and East Gully, to releasees therein named, and their heirs, to the use of the said James Baldwin for his life, and after his decease to the use of the said Frances for life; and after her decease, to the children of the said James and Frances, in such shares and proportions as the said James Baldwin should appoint; and in default of such appointment, to the children of the said marriage and their heirs, as tenants in common, share and share alike." The appellant, Mary M'Creight otherwise Baldwin, was one of the children; and she and her husband in her right are entitled to a portion of the said Baldwin moiety, and to a rentcharge on the remainder of the Baldwin moiety. A petition for sale of the Bernard moiety of the three denominations, and of the entire of the fourth denomination, has been. presented in the Incumbered Estates Court by an incumbrancer on said moiety, and an absolute order for a sale of the Bernard moiety has been made; and the petition alleges that a sale will not take place for a considerable time. A petition for the sale of the Baldwin moiety has been presented by the petitioner in the Incumbered Estates Court; the petitioner's claim on said moiety being in respect of the three judgments of 1803 and 1805. No absolute order for a sale has been made in respect of such moiety; the Commissioners having refused to make such order, by an order to which I shall hereafter particularly refer. The petition then states that there is a principal sum of £1000 due on the securities for principal, and £330 for interest, without distinguishing how much was due on the judgments, and how much on the mortgage. The petition should have stated this, having regard to the fact that the judgments are admittedly no charge on the fourth denomination, and the mortgage no charge on the Baldwin moiety of the three denominations. The petition then states the death of Dorothea Tressilian, to whom the three judgments were assigned as trustee for the petitioner, and that another person of the same name as the petitioner (who is a respondent) is the executrix of Dorothea, and has proved her will. The petition then prays that the respondents may be bound by the proceedings, and that a fit and proper person may be appointed to receive the rents and profits of the entire of said four denominations; that is, the entire rents of the Bernard moiety of the three denominations, the entire rents of the Baldwin moiety of the three denominations, and the entire rents of the fourth denomination, and apply same in payment of the petitioner's demands. It will thus 1855. Rolls. TRESSILIAN v. CANIFFE. Judgment. 1855. Rolls. TRESSILIAN บ. CANIFFE. Judgment. be observed that the petitioner Elizabeth Tressilian is represented by the petition to be the person beneficially entitled to the three judgments, and to the sum due on the mortgage; and as it will appear hereafter that she has no beneficial interest whatever in the judgments or mortgage, and that the solicitor for the petitioner was well aware of that fact before he filed the petition, I must say that, in my opinion, that fact that the petitioner had no beneficial interest in the judgments and mortgage, and that the beneficial interest therein was vested in the defendants Hennessy and wife, should not have been omitted from the petition. The petition was, I believe, directed by the Master to stand as a charge, and a discharge was filed by William M'Creight and Mary his wife, early in January 1855. The discharge was verified on the 1st of January 1855. The exact day of filing does not appear on the copy sent to me. The case made by the discharge appears to have been this :- -that Philip Bernard, the father of Jonas Bernard, being entitled to the Bernard moiety of the three denominations, and James Baldwin to the Baldwin moiety of the three denominations, entered into an arrangement (the date of which is not given) for an equitable partition of the said three denominations; and that it was part of the said arrangement that the Bernard moiety should be subject to the three judgments, and the Baldwin moiety held discharged therefrom. Although the date of the said arrangement is not stated, it must have taken place, if at all, many years ago, as the parties who entered into it are long since dead; but nothing can be more unsatisfactory than the course adopted in the petition and discharge, of omitting dates a common course in Irish proceedings. The discharge states that the arrangement has ever since (without stating ever since what time) been acted on, and that the interest in the three judgments has since the arrangement been paid by the owner of the Bernard moiety, and that no sum whatever has been paid "during that period, now considerably more than forty years, by the said James Baldwin, or by any subsequent owner" of the Baldwin moiety. That statement would lead to the inference that the arrangement |