Page images

Irish Rep.)


[Irish Rep.


those which appeared on the face of the convey- Henry Firzgibbon appeared for Mr. Redmund,

The 85th section of the Act makes the also in support of the order of the Court below. conveyance for all purposes conolusive evidence

BREWSTER, C.--This is an appeal from Judge that every act which ought to have been done

Dobbs. The order of that learned judge directs previous to the execution of the conveyance has that Mr. Wren should reconvey a certsia yard been done Errington v. Rorke, 7 H. L. C. 630;

or portion of the premises conveyed to him, or, Power's estate, 10 H. L. C. 645; Dublin and

that in case Wren should decline to do so, then Kingstown Railway Company v. Bradford, 7 Ir.

the conveyance should be recalled and cancelled. CL. 57; Roe v. Lidwell, 9 Ir. C. L. 184; Pur

I pass over all techvicalities in this case and go cell's estnte, 3 Ir. Jur. 0. 8. 102 n. ; Bodkin's

directly to the point, which is of the utenost imestate, 3 Ir. Jur. O. S. 101. A court of equity,

portance. The premises here were divided into had this sale taken place therein, could not re- two lots. Lot No. 1 was conveyed to one party, form the conveyance, had it been made by vea. and lot No. 2 to another. Each of the purchasers dor to purchaser: Bennett v. Hamill, 2 Sch. &

of these lots purchased by exact measurements Lef. 566.

the lots which were set up to be sold ; after the Flanagan, Q.C., and Henry Loughnan, for the conveyance of lot 2 has been made, the purchaser respondent MoBirnie, in support of the order of of lot I says that he will not give the purcbaser judge Dubbs Wren never purchased, nor meant of lot 2 wbat he purchased, namely, the yard, to purchase, this yard in question. He pur- which was at the rear of his house, and which chased the premises Nog. 8, 9, and 10. Wexford- he holds in his possession. A motion was accordstreet, producing £36 17s. 2d., and no more. ingly made to Judge Dobos, and he made this This yard did not contribute to pay that rent, order now appealed from. I am bound to say inasmuch as it was attached to lot No. 1. The that that learned judge has exceeded bis power Landed Estates Court is a court of equity, it is in ordering Mr. Wren to bring back this conconstituted, as such by the 37th section of 21 & veyance for the purpose of rectification ; such 22 Vict. c. 72: “ The said Landed Estates Court, an order is clearly opposed to law as well as to Ireland, shall be & Court of Record, and shall natural justice. He it was that was the seller have all the powers, authority, and jurisdiction of these premises, and be had taken Mr. Wren's of a court of equity in Ireland ” The Court money, and Mr. Wren had purchased on the faith then had the same power to deal with its owa of the statements in the rental; but the judge conveyances as a court of equity would have for finding that be bimself had made a mistake orrescinding or varying any contract for sale in dered the purchaser to bring in the conveyance the matters incident to or consequent on a sale for the purpose of having that mistake rectified. under the Act. Francis Wren did not pledge his The judge had no such power. Once the cononth that he believed he purchased this yard : veyance left his hands he had no more to do Collis's estate, 14 Ir. Ch. 511. The principle with it than any person outside the Court, he which guides the local equity court in such cases then was powerless to undo what he had done. is that if by any fraud, negligence, or other mis- The judge of the Laoded Estates Court is the conduct of the party having the carriage of the creature of the statute, and was in nowise emsale, he procures the Court to sell and convey to powred to defent its purposes. The law is him property which ought not to have been sold explicit that the party who has become the puror conveyed, the Court has jurisdiction to compel chaser in the Landed Estates Court, and bus him to reconvey: Langley's estates (not report. had a conveyance executed to him by that Court, ed). mentioned in argument in Collis's estate, 14 has such a title as he can enforce in the ordinary Ir. Ch 514. In Re Vesey's Estate, 1 Ir. Jur. N. courts of justice. In a word, the act of the S. 66, Baron Richards, then Chief Commissioner, judge in executing the conveyance is irrevocable. says, “that the Court had full jurisdiction to The policy of the Legislature was to make conamend the conveyance in any matter arising from veyances of the Landed Estates Court indefe as. mistake" The late Master of the Rolls (Smith) ible ; to this end did they pass the Landed Estates in Locke v. Ash, 4 Ir. Jur. 180, where lands, as Court Act; they thereby gave specific powers to in the case under consideration, were sold, dis- the Court ; large powers, but which must not be charged of a subsisting lease, thus expressed exceeded. Have these powers ouabled the judge himself in giving judgment on a motion to have of the Landed Estates Court, having executed a the receiver discharged from over the lands so conveyance and perfected the title in the pursold; “ Were I the commissioner who sold this chaser, to take that title from him of his own property, I have little hesitation in saying that will and pleasure? The 37th section of the Art I would, under the circumstances, order the con. has been relied upon in support of the order of veyance to be re-lodged, for the purpose of the Landed Estates Court, and it was urged that having the lease, which was lodged in court for that Court was a Court of record, and that it was the purposes of the sale, set out in the schedule to have a l the powers, authority, and jurisdicion to the conveyance.” In answer to the argument of a Court of Equity, and therefore it possessed on the 85th section, that it ousts the jurisdiction within itself all the incidents of a court of record. of the Landed Estates Court as well as the Court I cannot, however, find that a court of equity ever of Chancery, and precludes the possibility of claimed the power of doing what has been done taking objection to anything behind the convey- in this case. A court of equity in of a nature ance, we say that the conveyance is conclusive entirely different from the Lauded Estates Court, only so long as it stands. [Tas Lord JUSTICE which has no powers at all except those defined or APPEAL. -Tkat is to say, the conveyance may by the statute ; a court of equity does not itself be impeached by the allegation of those things, convey an estate to a purchaser, it merely directs of the non-existence of which the conveyance itself the parties to do so, and it regulates their rights. is made conclusive.] Re Giraud, 32 Beav. 385. The case we are now dealing with is one of mere Irish Rep.)


[Irish Rep.

mistake, and that on the part of the vendor of

can be no doubt that that case and Errington v. the property. I am not aware that even a Court

Rorke are conclusive on the case under conof equity could resoru a deed where only one of

sideration. two parties had committed a mistake, for unless

Mr. Flanagan brought forward another case, the mistake be mutual a Court of equity will pot

and I confess I do not look on that as any aureform a mistake. It was the ancient law of thority whatever, the case of Re Giraud, 3:2 this conntry that needs solemnly entered into

Beav. 385, thus :-“ By an order made under were not to be treated as waste paper; we must

the Trustee Act real estate was inadvertently now take that to be law, banded down as it is to

vested in an alien. The Court declined to vary us from remote antiquity. Here it was not one

the order by inserting the name of a natural party who conveyed to the other, it was the

born subject witboat the consent of the Crown, judge who conveyed, and then he turns round but the order was made on a rehearing." What and says, “Oh! I have made a mistake ; the

has that case to do with the present? The solemn deed I have executed is worth nothing ;

Trustee Act does not confer avy indefeasible bring it back, and if you don't I'll put you in

title, and there was nothing I can see from pregaol.” Great as the powers are which the

venting the Master of the Rolls from varying Landed Estates Court bas, po Act of Parliament

his order at all. I ask how is that case any ever gave them such wide prerogatives as these.

authority on the construction of the Landed The Legislature in passing this, the Landed Es

Estates Court Act ? tates Court Act, hare defined all the preliminary

It is expected that all parties in the Lander steps to be taken where a sale is had in that Estates coming before the Judge should take Court, I need not occupy the public time in

care that all matters of detail are brought accugoing through tbem further than so much of the rately before him. It is utterly impossible for 61st section as applies to leases; that section any judge or any court to see that every minute declares that “every such conveyance or assign

detail of all proceedings brought before him is ment executed by the said judge upon the sale

in accordance with the truth. It is sufficient of a lease or reptcharge, or an annuity charged that parties coming before a judge bave that on land, or any partial or lesser estate :han an

regard for their own interest wbich would induce estate in fee simple, shall be effectual to pass

them to see that matters of detail are correct. the estate created or agreed to be created by

The judge of the Landed Estates Court has a such lense then remaining unexpired, or by the

right to expect that po rental should be prepared, instrument creating such lesser or partial es- or conveyance presented to bim for execution, tate." Now clearly this leasehold interest was

which is not in accordance with the fact; and it conveyed, and the 85th section declares that would be expecting a judge to perform a duty conveyances, aysignments, and orders for parti- beyond all human power to accomplish. to expect tion, exchange or division and allotment made him to be responsible for an error such as has by the Landed Estates Court, shall be conclusive. unfortunately raised the difficulty in this case. That section is analogous to the 49th section of The judge or his immediate officer would require the Incumbered Court Act, 12 & 13 Vict. c. 77,

omniscience to do that wbich the parties ought and the decision of the House of Lords in Erring.

to do for themselves. Therefore, with reference ton v. Rorke, 7 H. L. C. 630, puts the question

to the judge having executed the deed of conbeyond all donbt. The case of In re Langley, veyance, no person could wonder at it ; on the cited, or rather reported, in the statement in contrary, it would be matter of wonder if he Collis's Estate. 14 Ir. Ch. 512, has been relied on

had not executed it in the shape in whi b it was in support of Judge Dobb's order. The case of presented to him, and, particnlarly, he being in In re Langley was decided in the Incumbered Es- profound ignorance of the matters brought before tates Court, and was about being appealed from.

the Court on this appeal. Somebody, of course, but the case being compromised the appeal fell

must suffer for the mistake; but all the Court to the ground, and is a case of no great weight

has now to say is, that the judge has exceeded and authority, and I am very much disposed to

the bounds wbich the law had set to bis power, think was much weaker than Judge Hargreave

and, therefore, the order made by him must be was willing to allow; and I am not disposed to

reversed. go againet the plain words of an Act of Parlia. Christian, L. J.--I concur with the Lord went on the extra-judicial opinion of any judge. Chancellor in the judgment his Lordship has No judge that I am aware of ever made fuch an just pronounced. This is a case of no ordinary order under the authority of either the Incum- | importance,-nothing would be more calculated cumbered Estates Conft Act or Landed Estates to shake the faith of the public in the parliamenCourt Act as the order we have now under our tary titles conferred by the Landed Estates Court consideration. Judge Hargreave has merely told tban the course taken here by the judge of that us extra-juilicially wbat the Court would do, so court. At present the public are attracted to that this case is vow one of first impression, and that court by the prospect held out of an indewe are not bampered by any authorities wbat- feasible title being conferred by it It is believe

Need I call attention to Power's Estate, ed that once the deed of conveyance bas been 10 H. L. C. 646, a case of the very highest executed a veil is drawn over the past, over all authority, an appeal from the Court of Appeal antecedent transactions, and that an impregnein Chancery in Ireland ? It was there held that ble bulwark is raised against the re-opening of a conveyance made under the 21 and 22 Vict. c. any matter lying behind that deed. What is to 72 (Sale and transfer of lands, Ireland) is by become of that confidence, if months, and it section 85 for all purposes" conclusive evidence" might be years, after a conveyance bas been that all previous proceedings leading to such executed, the purchaser is to be called upon to conveyance bad been regularly takeu. There submit to the alternative of a re-conveyance or Irish Rep.]



[L. C. Rep.

a cancellation, not on the ground of fraud or LOWER CANADA REPORTS. mistake on his part, but on the ground of inistake by the court, or the party having the carriage of the proceedings ? That is the point

THE NORTHERN RAILWAY COMPANY OF CANADA. before the Court. This conveyance contains no

V. PATTON ET AL. mistake so far as Mr. Wren is concerned, as to Held, that the pendency of an appeal to the Prire Coun. what he intended to purchase. I have no doubt cil, from a judgment rendered in Upper Canada when he intended exactly to purchase what was con

security has been given for the costs only, is no defente

to a suit brought upon such judginent in Lower Canali. veyed, the very measurement in the leases made

[L. C. Rep., February 5th, 1907.) by the Corporation in 1808. I shall consider the question before the Court on the broad ground

This action was brought upon a judgment reWhether any such jurisdiction as has been as

covered by the plaintiffs agaiost the defendants Bumed by Judge Dobbs can be claimed for the

in the Court of Common Pleas of Upper Canada. Lauded Estates Court? What is the effect of the

The defendants pleaded, by dilatory exception, conveyance? According to the 61st section of that the judgment having been confirmed by the the Landed Estates Court Act, the effect of the

Court of Error and Appenl, they had appealed conveyance is to draw everything out of the to Her Majesty in Privy Council, and that, when owner, and out of every person in the communi. this suit was brought, the appeal was undeterty in whom any particle of interest existei, and

mined. to vest it in the purchaser, subject to nothing

It was admitted by the parties that, although but what it is stated on the face of the convey

the defendants had appealed from the judgment ance it is to be subject to. Again, the 86th sec- declared upon, and although they had given so. tion provides that the conveyance shall be com

curity for the prosecution of the appeal before plete evidence of title, and represent on the face

the Privy Council, and the payment of the costs of it the precise limits of that Parliamentary

and charges, yet that they had not given securititle which the Court professes to convey. Once

ty for the debt and interest for which the judg. that conveyance is executed it becomes irrevoca- ment was rendered, and that, according to the ble. The 86th section is a final bar to any inter- laws of Upper Canada, the appeal, under such ference by the Court of Chaocery, because it

circumstances, had not the effect of staying exemakes the conveyance conclusive as to everything

cution in the cause. behind it; it is equally & bar to any further MEREDITH, C. J.-The parties in this case bare proceedings by the Landed Estates Court in res- been heard upon the merits of the dilatory expect of it. In fact, all jurisdiction with respect ception. It appears that the plaintiffs have reto the conveyance after its execution is ousted, covered judgment against the defendants, io Upand no mistake, miscarriage, or neglect lying per Canada ; that they have appelaed to Her behind it can be remedied by subsequent pro- Majesty, in her Privy Council; that the appeal ceedings. It is itself conclusive evidence that is still undetermined ; that the defendants hare there was a thorough investigation of the owner's given security for the prosecution of the appeal title before it was executed, and that everything and for the payment of the costs and charges, necessary to extinguish every right in bar of it but not for the capital of the judgment; and that, has been properly done. The present is the case by the laws of Upper Canada, the security thas of one of the public, who, attracted by the given by the defendants has not the effect of advertisement of the Court that a certain proper- staying execution in the cause. The question to ty was for sale, walked into the auction room, which these facts give rise is this; Can the plainpaid his money for it, and left with the convey- tiffs, upon the Upper Canada jadgment, now in ance in his pocket. The judge of the Landed appeal before the Privy Council, recover judg. Estates Court was entirely functus officio as re- ment in Lower Canada, against the defendants ! garded that purchaser, and he was as utterly On the part of the plaintiffs, it was contended powerless to call upon him to give up the deed that a judgment must be considered good until for cancellation or amendment as he was to de. reversed, and that they should not, as to their mand from the Duke of Leinster the title-deeds rights under their judgment, be more restricted of his estates. I have very great pleasure in here than in Upper Canada, anıl that, in Upper concurring with the Lord Chancellor in the judg- Canada an appeal, with security such as that ment which be bas pronounced, and I feel given in the present instance, is not sufficient to assured that in reversing the order of Judge stay the execntion, and therefore, that şach ap. Dobbs this Court is conferring a boon upon the peal ought not to prevent the plaintiffs from reLanded Estates , by from covering judgment part of the and insufficiency in its working. The appeal rule an appeal, when allowed, suspends the judg. must be allowed with costs.

ment appealed from, and that it would be hardly Appeal allowed with costs. reasonable to ask a Court to give effect to a for

eign judgment without any examination of the justice of the judgment sought to be enforced, if the question as to the justice and legality of such judgment was still being considered in the Courts of the country where it was rendered

I must say that, at the time of the argument, I was inclined to think that the appeal haid the effect of suspending the judgment, and that the Upper Canadian statute should be regarded as conferring upon the plaintiffs an exceptionalright,

recorded an order fraught with fature mischief defendants, it was contended that, as a general

L. C. Rep.)


fendants cannot prevent the plaintiffs from recovering a judgment; and I therefore overrule the dilatory exception.




APRIL, 1867.

which ought not to be extended so as to enable the plaintiffs to enforce their claion by an action here. I find however, that it is settled by English decisions, that where an action is brought on a “ judgment obtained in a foreign Court, the pendency of an appeal in the foreign court against that judgment is no bar to the action." In the case of Scott v. Pilkington, 2 Best & Smith, p. 38, Cockburn, C. J., certainly one of the ablest men and most distinguished judges of our day, commenced his judgment in the following words : 6. The plaintiff sues upon a judgment obtained by him against the defendant, in the Supreme Court of the county and city of New York. The defendant in bis plea sets out the record of the judgment at length, and concludes with an averment that the judgment is erroneous, according to the law of New York, and is liable to be reversed, and that the defendant is prosecuting proceedings in appeal, which are now pending ;" and the learned Chief Justice added ; "as far as regards this part of the plea we expressed our opinion in the course of the argument, that though the pendency of the appeal in the foreign Court might afford ground for the equitable interposition of this court to prevent the possible abuse of its process, and on proper terms to stay execution in the action, it could not be a bar to the action."

This was all that was said on the subject by Chief Justice Cockburn; but his view appears to have been concurred in, without any difficulty, by the other judges present, namely, Judges Crompton and Blackburn, and no opposing authority was cited by the counsel for the defen. dant in that case.

In the case of Alivon v. Furnival, C. M. & R. 277, which was cited by the counsel for the plaintiff in Scott v. Pilkinglon, a judgment was recovered in England upon a judgment or award rendered in France. The defendant having been charged in execution upon the English judgment, moved upon affidavit stating that an appeal was pending in France from the judgment or award upon which the plaintiff had proceeded and recovered in England, and tbat the fact of such appeal existing had not been brought before the court in the proceedings that bad already taken place. Baron Parke, it is true, observed that the appeal ougbt to have heen in. sisted upon by tbe defendant at the trial. But the court held, “that, at that stage of the proceedings in the French court there was no ground for the relief prayed ; but that if the Court of Cassation reversed the judgment, the application might be renewed.”

I observe that in deither of the English cases to which I have adverted was the point raised by a plea in the nature of a dilatory exception; the judgments, however, do not appear to bave turned upon that point, but to have been decided, according to the observation of Chief Justice Cockburn, in the course of the argument in Scott v. Pilkington, on the ground, that " an ap: penl being pending, cannot be subject of a plea.

It seems to me that, upon a question, such as that now under consideration, which is to be determined by the principles of international law, and according to the comity of nations, I ought to be guided by English decisions : and accordingly I hold that the appeal plended by the de

(Continued from page 278.) MARRIAGE.

Property was bequeathed to the children of A., provided he should marry an English lady. A., in 1859, married a woman named Hannah Tuhi Tuhi, the offspring of an alleged marriage between B. and a native woman of New Zealand, named Tuhi Tuhi. The only evidence of this marriage was that of B., who said that he was a British subject, born abroad, of British parents; that he came to New Zealand in 1828, and had lived there ever since; that, in 1829, he married Tuhi Tuhi, and that such marriage was solemnized according to the laws and customs then in force in New Zealand; that New Zealand was not then a British colony, and there was not then a Christian minister, nor any register of marriages, in the island; and that Tuhi Tuhi had always lived and still lived with him as his wife. B. did not state his parents' dame. He said that Hannah, before her marriage, was called Tuhi Tubi, and not by her father's name, in conformity with the customs of the natives of New Zealand, but there was no evidence what the laws and customs of such natives were, Held, that there was insufficient evidence that A, was a British subject, and that he had married Tuhi Tuhi.

Armitage v. Armitage, Law Rep. 3 Eq. 343. MARRIED WOMAN.—See HUSBAND AND WIFE. MASTER AND SERVANT.-See APPRENTICE; Princi



1. A., bona fide, purchased an estate under a power of sale in a mortgage; tie exercise of power afterwards was declared to have been invalid. Held, that A. was not liable, as is a mortgagee in possession, to account for all rents wbich he might have received but for his wilful default.–Parkinson v. Hanbury, Law Rep. 2 H. L. 1.

2. A creditor agreed to remit part of the debt, on the debtor's giving him a mortgage


for the balance. A mortgage was given, with a proviso, that, if the mortgage debt were not paid within two years, the whole of the original debt should be recovered. The debt was not paid within the two years. Held (per Lord Chelmsford, L. C.), that the proviso was not part of the original agreement, and was a penalty against which equity would relieve (Turner, L. J., dissentiente). Thompson v. Hudson, Law Rep. 2 Ch. 255.

3. Property was conveyed by M. to trustees to raise £75,000, and pay off prior mortgages, whose debts, including arrears of interest, amounted to that sum. The trustees did not raise the £75,000, but allowed A. to pay the prior mortgages, and take transfers of them; and then, in consideration of such payments, made a deed, to which M. was a party, pur. porting to assign to A. the £75,000 raisable, and to mortgage the property to A. for £75,000. Held, that, as against incumbrancers prior to this last deed, A. could not charge interest on £75,000, but could only stand as mortgagee for the principal and interest due on the transferred mortgages.16.

See FixTURES, 1; RAILWAY, 3; Sale, 2 SHIP, 1-3. NECESSARIES. - See Sup, 1, 2. NEW TRIAL

1. On an application to the Court of Appeal in Chancery for a new trial to reverse the findings of a vice-chancellor on an issue raising mixed questions of law and fact, if the decision of one of the questions of law suffices to dis. pose of the case, the Court of Appeal may give final judgment, without ordering a new trial.— Simpson V. Holliday, Law Rep. 1 H. L. 315.

2. A new trial of issues, tried by a vice-chan. cellor without a jury, claimed on account of improper rejection of evidence, will not be granted, unless the evidence has been formally tendered to the judge.—Penn v. Bibby, Law Rep. 2 Ch. 127.

3. After a trial by a vice-chancellor, a motion for a new trial was refused by the vicechancellor, and on appeal by the lord chancellor: the vice-chancellor refused to suspend the final order for an injunction, pending the appeal

to the House of Lords.-16., Law R. 3 Eq. 308. Nuisance.

1. It is no answer to a plaintiff complaining of a private nuisance, to say that others are committing the same sort of nuisance, if a distinct injury is clearly traced to the defendant. - Crossley & Sons v. Lightowler, Law Rep. 3 Eq. 279.

2. The issuing of smoke and efuria from a factory chimney, and the making of noise in the factory, were restrained, though the factory was in a manufacturing town; such smoke, effluvia and noise being a material addition to previously existing nuisances.-Crump v. Lam. bert, Law Rep. 3 Eq. 409.

3. On an information under a statute imposing a penalty on any one using a furnace so negligently as not to consume as far as possible its smoke, held, that “as far as possible" meant as far as possible consistently with carrying on the trade in which the furnace was employed. -Cooper v. Woolley, Law Rep. 2 Ex. 88.

See Railway, 1; WATERCOURSE, 2. Parol EvideNCE.-Ses PRINCIPAL AND AGENT, 2. Parties. — See Covenant, 1; SPECIFIC Perfoxy.


By the agreement between two partners, each was to have interest on his share of the capital, and the profits were then to be equally divided. A decree was made for a dissolution, and a sale of the property, but the business was carried on for some time, till the property was cold. Held, that, after the dissolution, interest was not payable under the agreement; that, in dividing the proceeds of the sale, each should take what was found to be his share of capital at the dissolution, with the accumulations on such part of the proceeds as had to be taken for this purpose, and that the remainder should be equally divided. - Watney v. Wells, Law Rep. 2 Ch. 250.

See FIXTURES, 1; Solicitor, 2. PATENT.

1. The new application of any means or contrivance may be patented, if it lies so much out of the track of the former use as not naturally to suggest itself, but to require some application of thought and study. -Penn v. Bibby, Law Rep. 2 Ch. 127.

2. The complete specification of a patent must not claim anything different from what is included in the provisional specification, but need not extend to every thing so included; and a provisional specification, if allowed by the law officer of the Crown, cannot be im. peached as too general.-16.

3. The antecedent existence of an invention, which, if subsequent in date to a patent, would have been held a colorable imitation of it, does not necessarily invalidate the patent by anticipation.- Daw v. Eley, Law Rep. 3 Eq. 496.

4. A patent for improvements in dyes thus described the process: “I mis aniline with arsenic acid, and allow the mixture to stand for


« PreviousContinue »