Gill v McGovern

• Jurisdiction: Ireland
• Judgment Date: 01 January 1946
• Date: 01 January 1946
• Docket Number: (1945. No. 678).
• Court: High Court

(1945. No. 678).

Gill v. McGovern.

MERVYN RICHARD GILL

Plaintiff

and

MARY A. McGOVERN

Defendant.

Practice - Procedure - Summary summons - Indorsement - Action for recovery of possession of lands - Indorsement not averring that defendant held all the lands from plaintiff or that he was in possession - Sufficiency of indorsement.

Motion on Notice.

The plaintiff, Mervyn Richard Gill, issued a summary summons for the recovery of certain lands, particulars of which were set out in the special indorsement of claim, from the defendant, Mary A. McGovern.

The special indorsement of claim was as follows:—

"The plaintiff's claim is to recover possession of the lands comprised in, and demised by, an indenture of lease, dated 18th December, 1834, and made between Joseph Craige Scully of the one part, and William Challoner of the other part and therein described as 'All that and those the field or plot of ground situate in Sidney Road near Carysfort Avenue, Blackrock, in the County of Dublin, bounded on the north by Sidney Road, on the south by Mr. Field's field, on the east by Mr. Davis's holding, and on the west by Mr. Walnut's holding, and containing in front 117 feet, in the rere 117 feet, and in depth from front to rere 155 feet or thereabouts, be the said several admeasurements more or less, all which said premises are situate, lying and being in the Half Barony of Rathdown and County of Dublin,' together with the dwelling houses erected thereon and now known as Numbers 13, 15, 17 and 19 Anglesea Avenue, Blackrock, situate in the Barony of Rathdown, Borough of Dun Laoghaire and County of Dublin.

By the said lease the said lands were demised to the said Joseph Craige Scully for the term of 790 years from the date thereof at the yearly rent of £37 10s., since adjusted to £36 19s.

Prior to the rent reserved by the lease hereinafter mentioned accruing due the reversion immediately expectant on the said lease came to, and was and now is, vested in the plaintiff.

Prior to the rent reserved by the lease hereinafter mentioned accruing due the estate and interest of the lessee in and to that part of the said premises consisting of Numbers 13 and 15 Anglesea Avenue aforesaid came to and is still vested in the defendant.

The sum of £36 19s. being for one year of such rent due and ending on the 1st July, 1945, is due to the plaintiff by the defendant.

Particulars

1945

"January 1st Half year's rent due on date in margin	£18 9 6
"July 1st .. Do	18 9 6
	--------
"Amount of rent new due"	£36 19 0

The summons was addressed to the defendant and "to all persons concerned." It was served on all parties in possession. The plaintiff filed the usual affidavit verifying the cause of action. The defendant was not in possession of either Numbers 17 or 19 Anglesea Avenue.

As no appearance was entered by the defendant or any other person, the plaintiff applied to the Master for judgment. The Master refused to allow judgment to be entered, but offered to allow the plaintiff to amend, or, in the alternative, to enter judgment for possession of Numbers 13 and 15 Anglesea Avenue. The plaintiff refused to amend or to enter judgment for portion of the premises...