Credit Finance Company Ltd v Grace

• Jurisdiction: Ireland
• Judge: Príomh-Bhreitheamh.
• Judgment Date: 09 June 1972
• Neutral Citation: 1965 WJSC-SC 2842
• Date: 09 June 1972
• Court: Supreme Court
• Docket Number: (60-1971)

1965 WJSC-SC 2842

THE SUPREME COURT

FULL COURT

(60-1971)

Credit Finance Co Ltd v. Grace

CREDIT FINANCE CO. LTD.

v.

MICHAEL GRACE.

1 Judgment delivered on the 9th day of June 1972 by An Príomh-Bhreitheamh.

2 These proceedings are concerned with the sufficiency of the affidavit made on behalf of the plaintiff company as judgment creditor under section 6 of the Judgments (Ireland) Act, 1850 (13 & 34 Vict. c.29) with the object of registering a judgment mortgage. The question has arisen in mortgagee proceedings before Kenny J.

3 The relevant portion of section 6 of the 1850 Act reads as follows: "…, it shall be lawful for such Creditor, …… to make and file in the Supreme Court … an Affidavit stating the Name or Title of the Cause or Matter, and the Court in which such Judgment, Decree, Order, or such Judgment, Decree, Order, or Rule, and the Names, and the usual or last known Place of Abode, and the Title, Trade, or Profession of the Plaintiff (if there be such), and the Defendant or person whose Estate is intended to be affected by the Registration, as herein-after mentioned, of such Affidavit, and the Amount of the Debt, Damages, Costs, or Monies recovered or ordered to be paid by such Judgment. Decree, Order, or Rule, and stating that, to the best of the Knowledge and Belief of the Deponent, the Person against whom such Judgment, Decree, Order, or Rule is entered up, obtained, or made is at the Time of the swearing of such Affidavit so seised or possessed, or has such disposing Power as aforesaid, of or over such Lands, Tenements, or Hereditaments, and such Affidavit shall specify the County and Barony, or the Town or County of a City, and Parish, or the Town and Parish, In which the Lands to which the Affidavit relates are situate, and where such Lands lie in Two or more Counties or Baronies, or Parishes or Streets, or partly in One Barony, Parish, or Street and partly in another, the same shall be distinctly stated in such Affidavit;"

4 The defendant's challenge to the sufficiency of the affidavit is restricted to paragraph 9 thereof, which is in the following terms:-

"9. I further say that to the beat of my knowledge and belief the said Michael Joseph Grace the said second named defendant is at the time of swearing, this affidavit seized or possessed at law or in equity or has disposing power which he may without the assent of any other person, exercise for his own benefit over certain Lands Tenements Hereditaments and premises hereinafter mentioned, that is to say ALL THAT AND THOSE the hereditaments and premises comprised in and demised by an Indenture of Lease dated the 16th day of August 1938 made between Moses Somers of the first part George Hill Tullock of the second part and James P. Walsh of the third part and therein described as "ALL THAT AND THOSE that piece of plot of ground situate on the north side of the Howth Road in Raheny North in the Barony of Coolock Parish of Raheny and City of Dublin with the messuage and building erected and now standing thereon and now known or intended to be known as Ashbrook or number 5 Howth Road, Raheny which said piece or plot of ground contains on the northern side 34 feet 10 inches on the southern side 34 feet 6 inches on the eastern side 150 feet and on the western side 150 feet be the said admeasurements more or less as more particularly shown coloured red on the map drawn on these presents and is part or portion of the hereditaments comprised in and demised by the Head Lease and which said premises are now known as number 578 Howth Road, Raheny in the City of Dubli'."

5 Two objections have been raised. The first is as to the description of the property. It is said the description is ambiguous in its reference to the number of the premises. The ambiguity relied upon is that the premises are referred to as "now known or...