LYNSKEY T. T. 1844. Company, that all policies of assurance effected by them with persons Exch. of Pleas. residing in this country, should be effected upon the express condition that the trustees of said Company should be answerable only within the jurisdiction of the English Courts for the sum thereby assured; that the present policy was effected on such condition, LIFE ASSU- which is expressed in a proviso contained therein. The proviso was as follows: THE ASYLUM RANCE COMPANY. "Provided always, and it is further expressly declared, that the "funds or property of the Company shall alone be answerable "for the payment of the monies assured by this policy; and the "trustees of the Company by whom this policy is executed, shall be "answerable only within the jurisdiction of the English Courts for "the sum hereby assured." Monahan now moved that the conditional order should be made absolute, notwithstanding the cause shown. There is nothing in the present case to call for a departure from the settled practice of the Court; it is not alleged that the plaintiff had any notice of the rule of the Company, which would control his rights. The proviso in the policy is intended to restrict the jurisdiction of the Court, and could not be relied on to defeat the present action. The hardship of obliging a plaintiff to sue in England to enforce a contract entered into by a Company in Ireland, which has been relied on in other cases, applies to this. Townsend M'Dermott, for the defendants. The principle upon which the Court have hitherto permitted service of process to be substituted upon the agent of an Insurance Company resident in Dublin, appears to be, that the conduct of the Company in each particular case amounted to an undertaking with the policy holder to make their office in Ireland their residence for the purpose of enforcing their contracts. In Moloney v. Tullock (a) the leading case upon this subject, Pennefather, B. stated such to be the ground upon which the order was made. Without such presumption the Court has no jurisdiction. In the present case, the presumption of an undertaking cannot exist, as the faets completely negative it, and the proviso in the policy precludes the plaintiff from relying upon any want of notice of the law of the Company; the restriction is part of the contract to which the plaintiff became a party, and it is not to be presumed that he would have entered into it without knowing the condition upon which alone the policy would (a) 1 Jones Rep. 114. be effected. The trustees of the Company ought to have had notice T. T. 1844. of the proceedings: Yeo & Billing, Exch. Prac. 68. Blake replied. BRADY, C. B. How can you carry your motion in the teeth of your own contract? It is a question with us whether, under the Act, we can substitute service in a case where the parties to a contract enter into an agreement in that contract to sue only in a particular place. PENNEFATHER, B. The parties have agreed to sue in England and only in England; the cause shown must, therefore, be allowed. Exch.of Pleas. LYNSKEY บ. THE ASYLUM LIFE ASSU RANCE COMPANY. Motion refused with costs. KENSINGTON LEWIS V. The Right Honorable THE EARL OF CHARLEVILLE. MOTION on notice, that the officer be directed to review the rule made by him under a former order of this Court, in regard to obliging the plaintiff to give security in the sum of £200 to the defendant for his costs in this cause, and that the defendant might be at liberty to give security under said order for the sum of £100 sterling only, or to lodge or invest in Government stock in the Bank of Ireland, to the credit of this cause, the said sum of £100, &c. June 3. If the officer, on a reference to him for that purpose, fixes which security for costs should be given by the plaintiff above the ordinary sum, the Court will not direct him the amount for order unless that order be The affidavit of the defendant's attorney stated, that the plaintiff to review his resided in London, and that the dealings between the parties took place in London, and that the sum should be measured above the ordinary sum of £100, because the defendant would have to procure attendance from England of witnesses amounting from seven to ten. The plaintiff's attorney stated in his affidavit, that the action in this cause was brought simply on a judgment obtained by plaintiff case the plain he is not able to obtain security to the amount so fixed by the officer. clearly wrong. Court will diSemble, the rect him to re view his order if in such a tiff state in his affidavit that T. T. 1844. on defendant's cognovit in the Common Pleas at Westminister, and Exch. of Pleas. upon three acceptances by the defendant of drafts by one Manning, and indorsed to the plaintiff; that there were no other indorsers, and that it was impossible the defendant could require to examine any number of witnesses. LEWIS EARL OF Battersby now moved and urged, that the officer of the Court should not be allowed to embarrass the plaintiff by fixing so high a rate of security: in the Queen's Bench and Common Pleas, the amount required is from £50 to £80, and in this Court £100: Ferg. Prac., 913. To that amount the plaintiff seeks to have the amount reduced. BRADY, C. B. It is plain that the witnesses for the defendant must be brought here from England. We would be very slow to lay down any rule to the effect that the officer, on a reference to him having fixed a certain sum, as the amount of the security to be given, we would afterwards on a motion be willing and ready to change that amount so fixed on, unless on the face of it that amount was clearly wrong. If the affidavit went on to say, that the plaintiff found a difficulty in giving security to the amount named by the officer, when that amount is above the ordinary sum, such a circumstance would have much weight with the Court, but now we must refuse this motion. H. T. 1846. RICHARD DALY and others v. DENIS DALY and others. (Queen's Bench.) THIS cause having in last Michaelmas Term been set down in the Lord Chancellor's list for a re-hearing of the decree pronounced on the 17th of June 1833 by Lord Chancellor Plunket, his Lordship directed that the following case should be submitted for the opinion of this Court. Jan. 17. A, by will of 20th September 1802, devised the lands of K. C. and P. to trustees to the use of his son H. for life, remainder to the trustees to preserve mainder from the death of H. to other trustees for a term of five to raise portions for the younger children of H., and subject thereto, remainder to the first and other sons of Michael Daly being seized and possessed of the lands of Kilcooley, Carranduff and Poliny, and also entitled to the lands of Ballydavid and Hollyhill, all situate in the county of Galway, contingent retogether with certain other real and freehold estates, duly made mainders; reand published his last will and testament in writing, bearing date the 20th day of September 1802, whereby he gave and devised the said lands of Kilcooley, Carranduff and Poliny, and all his estate, right, title and interest therein, unto Denis Bowes Daly and James hundred years, Kirwan, their heirs and assigns, upon the trusts following-that is to say, to the use of testator's son, Hyacinth Richard Daly, for and during the term of his natural life, without impeachment of or for any manner of waste; and from and after the determination of that estate, then to the said Denis Bowes Daly and James Kirwan, and their heirs, during the life of the said Hyacinth Richard Daly, upon trust to preserve the contingent remainders; and from and after the decease of the said Hyacinth Richard Daly, or other sooner determination of said estate, then to the use of Malachy Donnellan and Malachy Daly, their executors, administrators and assigns, for and during and until the full end and term of five hundred years from thence next ensuing fully to be complete and ended, without impeachment of waste, which said term of five hundred years was jointuring and leasing power so limited to the said Malachy Donnellan and Malachy Daly, upon to each devisee the trusts, and to and for the intents and purposes thereinafter when in the enjoyment of declared concerning the same that is to say, in case there should be the lands, and H. in tail male; remainder to M. for life; remainder to his first and other sons in tail male; remainder to daughters in fee. The will testator's contained a a power was given to each except H to charge £2000 for younger children. The testator, subsequently to the execution of this will, married a second wife, and upon that marriage vested the lands of K. and P. in trustees to secure her jointure; and by a codicil executed after this marriage, he revoked any former bequest or devise he had made to H., and then devised the lands of K. and P. to H. for life, subject to the jointure settled on testator's wife, remainder to trustees to preserve contingent remainders to the first and other sons of H. in tail, remainder to M. in fee; and he directed that this and every other codicil should be taken and annexed to and form part of his will. Held, that the term of five hundred years created by the will of 1802, was not a subsisting term. [PERRIN, J., dissentiente.] Queen's Bench. DALY DALY. H. T. 1846. an eldest or only son, and one or more child or children of the body of the said Hyacinth Richard Daly lawfully begotten, or in case of no issue male of the body of the said Hyacinth Richard Daly, and that there should be one or more daughter or daughters of the body of the said Hyacinth Richard Daly lawfully begotten, then upon trust that the said Malachy Donnellan and Malachy Daly, their executors, administrators and assigns, by sale or mortgage of the said term of five hundred years, or by such other ways and means as they or the survivor of them, or the executors or administrators of such survivor should think fit, should raise and levy, or borrow and take up at interest the sum of £2000 for the portion or portions of such other child or children, besides an eldest or only son; or in case of no issue male of the said Hyacinth Richard Daly, for the portion or portions of such daughter or daughters, to be equally divided between them, if more than one share and share alike, &c.; and from and after the end or sooner determination of said term of five hundred years, and subject thereto, that said lands should remain to the use and behoof of the first son of the body of the said Hyacinth Richard Daly lawfully issuing, and of the heirs male of the body of such first son lawfully issuing; and for default of such issue, then to the use of the second, third, fourth, fifth, sixth, seventh, and of all and every other son or sons of the body of the said Hyacinth Richard Daly lawfully issuing, severally, successively and in remainder, one after another, as they and every of them should be in seniority of age and priority of birth, and of the several and respective heirs male of the body of all and every such son and sons lawfully issuing, &c., and for default of such issue male, then to the use and behoof of Michael Daly, the third son of testator's son, Arthur Henry Daly, for and during his natural life, without impeachment of or for any manner of waste; and from and after the determination of that estate, then to the use of the said Denis Bowes Daly and James Kirwan, and their heirs, during the life of the said Michael Daly, in trust, &c. (devising in strict settlement on his issue male); and for default of such issue male, then to the use and behoof of Arthur Daly, second son of testator's said son Arthur Henry Daly, for and during the term of his natural life, with like remainder to his issue male; and in default of such issue male, remainder over to Henry Daly in strict settlement, remainder over to testator's daughter Anne Eyre and her right heirs for ever. By the said will a leasing power was given to the tenants for life, when in possession of said lands so devised to them, to make leases for a term not exceeding three lives or thirty-one years in possession and not in reversion; and also a jointuring power, with a power to each, except Hyacinth Richard Daly, to charge £2000 for younger children. |