Saturday, July 22, 1876 The Peoples’ Advocate Transcribed by Jane.
(Monaghan) Record Court – Friday
Mr. Justice FITZGERALD took his seat in the Record Court on Friday evening, and proceeded to hear Appeals.
George KING, defendant and appellant; James GRAY, M.P., plaintiff and respondent.
This was an appeal from a decree of the Chairman for £6. The action was an important one, as it not only involved a nice question of law but also the title to an annuity of £6 yearly for ever.
The facts of the case were shortly these. Joseph M’CARTER by deed dated 26th January, 1863, granted unto Edward Warren GRAY, his executors, administrators, and assigns an annuity of £6 yearly to be paid out of the lands of Annaneese, County Monaghan, during the term of the then existing lease and of every other lease or fee farm grant to be made for ever thereafter. It appears that the lands were held under a lease for lives renewable for ever, but this lease had been converted into a fee farm grant before the execution of the deed charging the annuity. M’CARTER afterwards sold his interest in the lands to a Thomas KING, who had since died, and by his will he bequeathed his property to his son Isaiah KING, who is still a minor. He appointed the present defendant, George KING, his executor and trustee for his son, directed him to manage the lands, pay the outgoings, and apply the net profits for his son’s benefit.
Edward Warren GRAY also died in January, 1874, bequeathing his property to the plaintiff, James GRAY, who resides in Australia. The execution of the deed of annuity and of the grant under which the lands were held were proved, and that the annuity had been regularly paid to the late Edward Warren GRAY during his lifetime. Mr. F. DUNWOODY proved two payments had been since made to him by George KING for the plaintiff. A treaty was entered into for the sale of the annuity to KING, but on his being furnished with a statement of the plaintiff’s title he was advised it was defective, and not only declined to complete the purchase but refused to pay the annuity. It was contended by the defendant’s counsel that the word “heirs” not being used in the conveyance it was not sufficient to charge the real estate at law, and that the defendant, George KING, being only a trustee, was not liable in any case.
The plaintiff’s counsel on the other hand alleged that although the deed might not be sufficient to make a legal charge still there was plainly a good equitable one; that the only effect of his Lordship reversing the decree would be to drive Mr. GRAY to file a bill in Chancery to appoint a receiver at enormous expense to both parties; that the defendant as trustee under the will was bound to pay the annuity, and that the plaintiff was entitled to recover it by civil bill, under the 55th section of the 14th and 15th Vic., cap. 57.
His Lordship reserved his decision till next morning when, at the sitting of the Court, he said there was clearly a good equitable charge of the annuity, and that there was no doubt the defendant as trustee was liable to pay it; but on reading the 55th section of the Act, on which the case rested, he did not think the Chairman had jurisdiction, as in his opinion it was one of the administration sections and only applied to annuities charged by will. The question, however, was a most important one, and as the only other remedy was by an expensive suit in Chancery, he was willing, if the plaintiff’s counsel wished, to reserve the point. Mr. ANDREWS, Q.C. (who appeared for the plaintiff), requested his Lordship to do so.
His Lordship then formally reversed the decree into a dismiss, to be changed to an affirmance for the plaintiff if the Court above should be of opinion that the action could be maintained under the section referred to.
Counsel for the plaintiff – Mr. ANDREWS, Q.C. (instructed by Mr. Joseph WRIGHT.) For the defendant – Mr. PORTER, Q.C. (instructed by Mr. BAILLIE).
The Court adjourned till next morning.
AUCHINLECK – July 11, at Rue des Voirons, Geneva, the wife of Thomas AUCHINLECK, Esq., D.L., J.P., Capt. Royal Tyrone Fusiliers, Crevenagh, Omagh, County Tyrone, of a daughter.
BYRNE – July 12, at Govan, Scotland, the wife of Mr. Patrick BYRNE, Newry, of a son.
GOWAN – July 12, at Templepatrick, the wife of Constable GOWAN, R.I.C., of a daughter.
BLACK – July 11, at his residence, Richmond Street, Staten Island, New York, U.S., Joseph, son of the late Mr. Robert BLACK, Kingsgate Street, Coleraine, aged 59 years.
CASEY – July 15, at his residence, Foyle Street, Derry, John CASEY.
FORD – July 15, at Cold Springs, Ont., Canada, James FORD, sen., late of Tullyarron, Co. Tyrone, aged 74 years.
JOHNSTON – July 12, at his father’s residence, John, only son of John JOHNSTON, Killybrack House, Omagh, aged 44 years.