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habere has not been returned as in the present case. [COURT.
the sheriff, when he executes an habere on an ejectment on the title, re-
turn the time of the execution.]-No ;-nor is it necessary that he
should. [COURT. Does the form of the habere in ejectment for non-
payment of rent differ from that in an ejectment on the title.]-I believe
not. [PENEFATHER, B. We have called for an attested copy of the
writ of habere in this case, and have examined it to see whether time forms
any part of the panel of the return which the sheriff ought to make; and
the writ has these words," and in what manner you shall have executed
"this writ."-Mr. Pennefather. That is the language of every writ.-
[PENNEFATHER, B. Precisely. I do not think those words make time.
an essential part of the return.-M'CLELLAND, B. How is the sheriff to
distinguish between an habere in an ejectment for non-payment of rent,
and an ejectment on the title?]-Mr. Blackburne. By the information
of the party.-[M'CLELLAND, B. I cannot consider this return conclu-
sive evidence of the time of the execution of the habere.]-At law it
would be clearly conclusive.-[COURT. How do you shew that? If con-
clusive at law, it must be equally conclusive in equity. We will not
establish a rule of evidence, sitting as a Court of Equity, which, sitting
as a Court of Law, we would reject. The rules of evidence are sub-
stantially the same at law and in equity. What do you say to the case
of Gufford v. Woodgate? Have you any case over-ruling or varying that
case; or any case denying the principle, that on a collateral matter,
not an essential part of the return, and which the sheriff is not by the
writ commanded to return, the sheriff's return is only primâ facie and
not conclusive evidence?]

Mr. Blackburne did not state any case.

Mr. O'Connell, at the same side, submitted, that on those pleadings the sheriff's return was conclusive in all its parts; and that evidence to impeach it ought not to be admitted. This Court had repeatedly overruled Gufford v. Woodgate, more especially in the case Lessee Henchy v.

which came before the Court after verdict at the Clare Assizes. If the plaintiff meant in any manner to impeach the return, he ought, upon the coming in of the answer, to have amended his bill, charging distinctly the fact of the execution of the habere on the 18th, and charging combination between the sheriff and the defendant: and by these means give the defendant an opportunity of rebutting those charges, and examining witnesses to shew that the return was true in substance and in fact. This could have been done completely; but on the pleadings as they now stand, the defendant is taken quite by surprise, if this evidence be let in. Is there on the pleadings any thing to shew that the plaintiff intended to impeach the truth of the sheriff's return as to time? He does not, even by his bill, state that the habere was actually executed on the 18th; the words of the bill are, "on or about the 18th."

1826. Equity Exch.

FITZGERALD

v.

HUSSEY.

1826.

Equity Exch.

FITZGERALD

บ.

HUSSEY.

This is clumsy pleading, and much too loose to put the precise day in issue.

Mr. Hickson, for the plaintiff.-I mean to insist that on those pleadings, nothing but the precise day is or could be in issue between the parties. [COURT. Let us see what is in issue: read the charge in the bill and the answer thereto.]-The paragraph in the bill and answer, ut ante, were then read.-[COURT. We think that the time of the execu

tion of the habere is sufficiently in issue.]

Mr. O'Connell then argued that at law the plaintiff was concluded by the time in the return; and that Gufford v. Woodgate had been overruled by this Court; and again cited Lessee of Henchy v.

The COURT then directed the evidence of the time of the actual execution of the habere to be read: and then offered the defendant's Counsel an issue to try the fact of the precise day of the execution of the habere. The Counsel for the defendant hesitated, as the defendant was not present. The Court said they would not pronounce any decree until Counsel had an opportunity of communicating with the defendant.

Mr. O'Loghlen, for the defendant, submitted that the plaintiff was a defaulting tenant, who was not, from the circumstances of the case, entitled to any favour. He had committed the grossest waste, and had dilapidated the house, which in itself ought to disentitle him to redemption. [COURT. No. We have lately determined that that does not disentitle a tenant to redeem.]-The case of Dowling v. Foxhall (a) is the first in which it was held that the day on which the habere was executed is not to be included in the calculation of the six months. Now, in this case, the bill was not filed until the 18th of May; and admitting that the habere was not executed until the 18th of November, if as against this tenant, not deserving of any favour, the Court departs from the decision in that case, justice will be done to all parties. [COURT. We will not overrule that case.] e.]

On a subsequent day, the defendant, by his Counsel, declining an issue, the Court decreed the plaintiff entitled to redemption on the usual terms, and gave no costs on either side. Mr. Bennett and Mr. Hickson were with Mr. Pennefather for the plaintiff.

The decree was prefaced thus-“The said P. B. Hussey declining to "accept an issue as to the fact, to ascertain on what day particularly the "writ of habere facias possessionem in the pleadings in this cause men"tioned was actually executed."*

(a) B. & Beat. 193.

• See Bodkin v. Vesey, 1 Jo. 139; Chambers v. Bernasconi, 1 Tyrw. 335.

1841. Rolls.

HODGENS v. WHEELER.

(In the Rolls.)

Jan. 20.

must advance the sum pay

On the 3rd of July 1840, Mr. Murphy, who was the late solicitor of Mrs. A solicitor Hodgens the plaintiff in this cause, obtained an order to impound for costs the dividends payable to her on certain funds in Court. By another order of the same day, on the motion of Mrs. Hodgens, the costs were referred for taxation, and Mr. Murphy was ordered to procure a report on or before the 1st of November then next.

The report was not obtained within the time limited, and on the 10th of November 1840, Mrs. Hodgens obtained a further order discharging the impounding order of 3rd of July, and releasing the dividends payable to her in the present month.

Mr. Blake, Q. C., for Murphy, now moved to discharge the order of 10th of November 1840, upon the ground that the bill of costs had been furnished to Mrs. Hodgens, and that if she desired to have it taxed it was her duty to advance the sum payable to the Chancery fund upon the bill before taxation, but she had declined to do so.

Mr. Litton, Q. C., and Mr. B. C. Lloyd, for the plaintiff, insisted, that the solicitor is bound to advance the sum payable to the Chancery fund on a bill to be taxed, and that the only exception to such rule is where the solicitor is insolvent. They cited Blythe v. Davies (a); Mahony v. Dillon (b).

MASTER OF THE ROLLS.

I have had occasion to consider this point before, and was then, as I still am, clearly of opinion that the sum payable to the Chancery fund on a bill to be taxed must be advanced by the solicitor in the first instance. It is a settled proportion of the sum claimed for costs. If upon inquiry it appears that the bill is a proper one, and such as the client had not very sufficient reason for objecting to, the solicitor will be entitled to have his costs of the taxation, of which the sum paid to the Chancery fund is one item, included in the sum certified to be due to him on foot of the bill. But on the other hand, having regard to the principles upon which this Court acts, I have held in several cases, some of which have been before me very recently,* that where a solicitor's bill is ascertained by taxation to be unjust, he must bear all the costs rendered necessary by the unreasonableness of his demand. I am therefore of opinion, that the proper person to advance the sum payable to the Chancery fund, is the solicitor who furnishes the bill.

able to the chancery fund on a bill of

costs referred for taxation; but he will be

entitled to have

it and his other

costs of the ded in the sum

taxation inclu

certified on foot of the bill, in case it is not reduced by sixth. If more

more than one

than one-sixth be struck off, he must bear all the costs of

the taxation, the clients' as

well as his

own.

Motion refused, with costs.

(b) 1 Hog. 292.

(a) Crawf. & Dix, Ab. N. C. 223.

* See the cases of Lawlers, Minors, and Power v. Nagle, ante, pp. 102–105.

1841.

Rolls.

Jan. 21.

Testatrix

freehold and leasehold

estates to A. for life,remainder to B. for life, remainder (except as to a certain rent) to the Commissioners of Charitable Donations and Bequests, upon

COMMISSIONERS OF CHARITABLE DONATIONS AND

BEQUESTS

v.

RICHARD ESPINASSE and JANE his Wife.

THE bill in this cause stated that Miss Cordelia Carey, of Stephen's-green, devised all her in the city of Dublin, being seized and possessed of considerable freehold, leasehold, and personal estate, duly made and published her last will and testament in writing, bearing date the 21st of August 1832, and executed and attested, &c., to pass real estate, and thereby "devised "and bequeathed all the estates which she was seized of or entitled to, "whether fee-simple or freehold, and all her terms of years of which "she was then possessed, or at the time of her death might be pos"sessed, unto Richard Espinasse for life, with remainder (except a "certain rent chargeable and payable out of the lands of Bascay, in the county of Dublin) to the Commissioners of Charitable Donations and "Bequests, and to their successors for ever, in trust, to pay the head"rents as they should respectively become due, and to renew the several "leases under which said property is held, within six months after the "fall of each life, and to apply the issues and profits thereof annually" for certain charitable purposes therein mentioned. That after giving various other charitable bequests, the testatrix directed the remainder of the issues and profits of said estates to be applied (save and except the sum of £20 a bill against out of the first year's income, which was to be paid to the Parochial

trust to renew leases and apply rents, &c., and appointed A. and B. executors of her will:-Held, that A. and B. took beneficial estates respec

tively for life.

The Com

missioners filed

A. and B.,

leasehold estates of the

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seeking for a Schools of St. Peter's, Dublin) to certain charitable institutions mendiscovery of the estates in tioned in the bill. That by a codicil to her said will, she gave and fee-simple, fee devised her estate and interest in five shares in the Dublin Cemetery tail, and other freehold and Company to the Rector of St. Catherine's Parish, upon certain trusts, and appointed the said Richard Espinasse executor of her said will and testatrix, and codicil during his life, and, after his death, said defendant Jane Esall her personal estate and ef- pinasse executrix thereto. That the testatrix died without altering or feets, &c., and revoking her said will, save by the said codicil, and that said Richard praying that an account Espinasse duly proved the same and obtained probate thereof, and might be taken entered into possession of the lands therein mentioned; and duly trans

of her freehold

and leasehold ferred the shares in the Cemetery Company to the Rector of St.

estates, &c.,

and

that the Catherine's parish.

title deeds re

lating thereto

might be brought into Court. The bill did not state that the personal assets of the testatrix were insufficient for the payment of her debts, but it averred that the defendants had paid a specific bequest in her will mentioned.

Demurrer to so much of the bill as sought discovery of the estates tail of the testatrix, and of her personal estate and effects (except chattels real), allowed.

That the plaintiffs, being apprehensive that the title deeds might be mislaid, or the estates lost for want of renewal of the leases, caused their solicitors, Messrs. M'Causland and Fetherstone, to write to the said Richard Espinasse, requiring him to inform them of the particulars of the estates devised by Miss Carey for charitable purposes, and whether he had all or any of the several title deeds relating to the same. the 21st of February 1839, the said defendant wrote and sent the following answer to Messrs. M'Causland and Fetherstone :

:

That on

"Sirs-In compliance with your request, I have to inform you that "the only information I can give you of my actual knowledge as to the "estates of the late Miss Carey, is, that she was seized of no estates in "fee-simple or fee-tail, but was entitled to an estate in Rainsford-street "and Lord Meath's Liberty, Dublin, under a lease with a covenant for "renewal."

66

After stating other applications to the defendants Espinasse and wife, the bill further stated that the defendant Richard refused to comply with such requests, pretending that the said Cordelia Carey was seized of no estate in fee-simple or fee-tail; whereas the plaintiffs charged the contrary of such pretence to be true, and that the said Cordelia Carey was seized of estates in fee-simple and in tail. And the bill contained, amongst others, the following interrogatory :-"Did not said Richard Espinasse, as such executor, possess himself of all or some and what part "of the personal estate and effects of the said Cordelia Carey of the particu"lars aforesaid, or of some other and what particulars, or how otherwise?" The bill prayed that the said defendant Richard Espinasse might set forth a full, true, and particular account of all and every the rents, issues, and profits of the estate and effects belonging to the said testatrix at the time of her death, together with the nature, kind, quantity, quality, true and utmost value thereof, and of every part thereof, and where and in whose hands the title-deeds, &c., now were; and that the said defendants Richard and Jane, or one of them, might be decreed to give an account to the plaintiffs, or to such new trustees as the Court should think fit to appoint, of all the real, freehold, and chattel estate of the said testatrix bequeathed for charitable purposes, and the yearly amount of the same separately, and into whose hands same came, and how same and every part thereof had been disposed of; and that all deeds, &c., should be given into the custody of a trustee, or be lodged with one of the Masters of the Court; and in case the Court should be of opinion that the said charitable donations should be paid in the lifetime of the defendants, according to the true construction of said will, then that same might be decreed to be paid accordingly; and that all accounts. necessary for that purpose might be taken; and if necessary, that the defendants might be removed from said trusts, and new trustees appointed.

1841.

Rolls.

COMMIS

SIONERS OF
CHARITABLE
DONATIONS
AND
BEQUESTS
v.
ESPINASSE.

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