1850. Chancery. MURPHY v. KELLER. Nov. 30. On a petition UPON this petition, under the Court of Chancery Regulation Act, under the Court of the following facts appeared :-The petitioner and respondent were Chancery Regulation Act partners as corn dealers. The partnership being unprofitable, was for a partner- dissolved by mutual consent. Disputes arose as to the partnership accounts, and were referred to arbitration, the award to be made under hand and seal. An award was made under hand only. The petitioner denying the accuracy of the award on the ground of his not having been allowed credit for certain items, the arbitrators summoned a further meeting of the parties, and upon further investigation found that the petitioner's allegation was well founded, and made a further award (under hand only), which found that a certain sum was due to and not by him. That sum not having been paid, ship account, it appearing that an arbitration had taken place upon the subject in dispute and that an award was made, although not under seal; Held, that the case was not one for a summary order under the 15th he now presented his petition for an account. section of the Act, and that notice must be served upon the respond ent. Argument. Judgment. Mr. Thomas Jones now moved for a summary order under the 15th section of the Act.-[The LORD CHANCELLOR. There appears to have been an arbitration.]—The award is void, not having been under seal: Everard v. Paterson (a), and 2 Wms. Saund. p. 62. The LORD CHANCELLOR. Such a proceeding having taken place as an arbitration between the partners prevents this from being a proper case for the exercise of the summary jurisdiction under the 15th section. You must give notice of the petition to the respondent. I shall not make orders ex parte except in clear and simple cases. (a) 2 Marsh. 304. 1850. Chancery. CUMING v. TAYLOR. Dec. 7, 14. would not be petition under the Court of Chancery Regulation JOHN TAYLOR, by his will made in August 1832, amongst other Where a bill bequests to various persons, gave £100 to his grandson, John sustainable, a Cuming the petitioner, when he should attain twenty-one years; and to testator's son, Alexander Taylor, he devised certain lands in the town of Belfast, and appointed John Smith Taylor and Alexander Taylor his executors, who on the death of the testator proved his will. Act cannot be supported. Therefore such a petition is open to an objection for multifariousness, should it exist. Alexander Taylor, by his will of the 20th of January 1834, after directing his freehold and chattel property to be sold, and bequeathing certain legacies thereout to various persons, ordered the residue to be divided equally between the petitioner and certain other sons. In this will also, John Smith Taylor and two other persons were appointed executors. John Smith Taylor alone proved the a summary will. per By letter of 27th April 1850, John Smith Taylor undertook to pay the legacy of £100 to the petitioner, and also to account for the estate and effects of Alexander Taylor, and to pay the balance due to the petitioner on foot of the residuary bequest on or before the 1st of November 1850. Neither payment having been made, the petition was presented under the Court of Chancery Regulation Act, praying payment of the £100 legacy under the will of John Taylor; and that the trusts of the will of Alexander Taylor should be carried into execution, an account of his personal estate and debts and legacies; that the assets should be applied in due course of administration, and an account of his real estate and the rents and profits, and also of the charges and incumbrances thereon, and that if necessary it should be sold and the proceeds applied according to the trusts of the will, and his part of the residue paid to the petitioner, and that a receiver should be appointed. VOL. 1. 4 Upon a petition, plainly open to such an objection, the Court will not pronounce order of reference without notice. Costs of proceedings be fore the Court in such a peti tion are within the jurisdic tion of the Court only and not of the Master. On petitions for the administration of assets the Court in making an order of refer ence to the Master will include a direction that the petitioner's costs already incurred shall be payable to him in the same order as his demand (if any), and out of the same fund or by the same party. 1850. Chancery. CUMING V. TAYLOR. Judgment. Dec. 14. Mr. B. Stephens now moved for a summary order of reference under the 15th section of the Act. The LORD CHANCELLOR. The petition seems to me to be open to objection on the ground of multifariousness. I shall not make on such a petition an ex parte order, which might probably be set aside next day on application by the respondent. You must give him notice of this petition. Perhaps he may consent to have both matters included in the same petition. Mr. B. Stephens again moved for an order upon the petition under the 15th section. There was not any appearance for the executor, on whom notice had been served in Belfast upon the 12th of December. The LORD CHANCELLOR. I can scarcely consider that a sufficiently long notice has been given. I shall, however, make an order of reference on the petition, reserving permission to the respondent to object to it on the ground of multifariousness. Mr. B. Stephens suggested that the order should reserve leave to the respondent to object generally, and that it should not specially draw his attention to the objection on the ground of multifariousness. The LORD CHANCELLOR. I cannot adopt that suggestion. If the case made be such that a bill would not be sustainable, you cannot support a petition. Mr. B. Stephens asked that the order should reserve liberty for the petitioner to apply to the Court for the costs. Under the 25th section of the Act the Master has power only to award costs incurred in respect of proceedings in his office. The costs of proceedings before the Court are in the discretion of the Court only. The LORD CHANCELLOR. It would lead to great expense to bring the parties back again to the Court. It will be better at once to make an order with respect to costs already incurred. Let the costs of this petition up to the present time be costs in the matter payable to the petitioner in the same order as his demand, if he succeed in establishing any, and out of the same fund, or by the same party. Subsequently in the day in another and similar petition matter the LORD CHANCELLOR said that the Registrar should make the above order as to costs the general direction in all such cases. 1 Reg. Lib. Gen., fol. 151. 1850. Chancery. CUMING v. TAYLOR. Judgment. MULLOY v. GOFF. of GEORGE EARL OF KINGSTON, being seised in fee of the lands Oakport and certain other lands in the county of Roscommon, by indenture of the 28th of May 1798, demised them and "all the timber then growing" thereon to William Mulloy, to hold to him, his heirs and assigns from the 1st of May then last past, for three lives. This indenture contained the usual covenant for perpetual renewal. On the 10th of April 1811 the Earl of Kingston conveyed his reversion in fee in the premises to Robert Goff who by his will devised them to his eldest son Thomas Goff, in fee, and subsequently died without revoking or altering his will. Thomas Goff, by will dated the 5th of July 1841, devised them in fee to trustees in trust Nov. 12, 13. Upon a lease for lives with covenant for perpetual renewal, more than one year's rent being due, and the land lord being a minor and ward of this Court, the Master directed an ejectment for non rent to be brought payment of against the plaintiff (the tenant), and certain mort gagees of his interest, upon which ejectment judgment was by consent obtained, and an habere executed on the 28th of May 1847. The lessors of the plaintiff in ejectment on the same day demised the lands to A. B. (a relative of the plaintiff and creditor as against his estate) for six months pending redemption, during which time the plaintiff was in fact allowed to occupy the lands. The mortgagee being entitled to three months' further time to redeem, the forfeiture could not have become complete until the 28th of February 1848, during which period the last cestui que vie named in the lease died. Upon the 28th of February 1848 at the instance of the mortgagees the Master made an order directing that certain bills payable three months 1850. Chancery. MULLOY v. GOFF. Statement. for the defendant Thomas William Goff then a minor, and appointed as the guardian of his person and estate the Reverend William Caulfield one of the trustees. Thomas Goff died on the 24th of October 1844, leaving the defendant his eldest son and heir-atlaw, and several other children him surviving, all being then minors. Pursuant to an order in this Court on the 9th of November 1844 in the then pending matter of Goffs minors, the Master reported that the Reverend William Caulfield was a proper person to be guardian of the minor's estate, and Peter M'Keogh to be receiver. On the 23rd of April 1845 that report was confirmed. William Mulloy, being in embarrassed circumstances, during the latter years of his life permitted the rent to fall into arrear. He died in May 1846, leaving the plaintiff Coote Mulloy his eldest son and heir-at-law, who as such became entitled to the interest under the lease of 1798, and entered into possession of the premises. On the 25th of January 1834 William Mulloy had mortgaged his estate in the premises and certain other lands to William St. Clair for £7,646. 3s. 3d. The mortgagee's interest in the premises became ultimately vested in Mary Cockburne and her three infant children, who had commenced a foreclosure suit against the present plaintiff, and obtained a receiver over the latter lands. after date, drawn by the plaintiff and accepted by A B, should be received " The solicitor for the minor and his testamentary guardian objected to this order at the time of its being made, but took the bills, and on their arrival at maturity and non-payment caused them to be protested. The minor, who was near the attainment of his full age, immediately upon hearing of the order expressed his approbation of it. The plaintiff continued in undisturbed possession during the currency of the bills, and on their non-payment refused to deliver up possession of the lands. An ejectment on the title was brought in the Common Pleas, on part of the landlord, by direction of the Master, against the plaintiff and the mortgagees, to which the plaintiff alone took defence, but a verdict was obtained against him; he then moved that the verdict should be set aside, but failed in this also and judgment was recovered against him. He then filed his bill in this Court offering to lodge in Court the rent and costs, and praying a renewal, redemption and an injunction to restrain the landlord from enforcing the judgment in ejectment. The mortgagees were not parties to this equity suit. Held, that the arrangement made on the 28th of February 1848 was binding, and that, if the bills had been paid when due, the plaintiff would have been entitled to relief; but— Held also, that, in consequence of the bills not having been so paid, the Court had no power to decree redemption, and that the plaintiff's bill must be dismissed with costs. Permissive waste of a mansion, on the part of the tenant, is not a sufficient ground for refusing a renewal. |