Graves v Davies

• Jurisdiction: Ireland
• Judgment Date: 12 November 1864
• Date: 12 November 1864
• Court: Court of Appeal in Chancery (Ireland)

Ch. Appeal.

GRAVES

and

DAVIES.

Murtagh v. Tisdall Fl. & K. 20.

Gurney v. OranmoreUNK 5 Ir. Ch. Rep. 447.

Sawyer v. Birchmore 1 Keene, 391; S. C. on appeal, 2 Myl. & Cr. 612.

Knox v. WatersUNK 5 Ir. Ch. Rep. 430.

Cattell v. SimmonsENR 8 Beav. 243.

Ex parte Brees 3 D. & C. 283.

Montefiore v. Browne 7 H. of L. Cas. 170.

Gillespie v. AlexanderENR 3 Russ. 130.

Montefiore v. Brown Ubi supra.

90 CHANCERY REPORTS. 1865. to prove that which he has alleged to constitute his right to the Ch Appeal. possession, he might, it is true (and as suggested by the Master of O'NEILL the Rolls), have rested his right to the injunction in pleading and v. WERLAINE•i evidence on mere possession for three years, or on the deeds and Judgment. leases which, by means of long and undisputed possession, have evidenced an exclusive right to fish in the New Cut ; but he has not done so ; and the very basis of his alleged right, the patents from the Crown, are not proved to have given him any title to this fishery. The question then is, ought the Court to make the conditional order absolute ? It is true, it follows the words of the patent, but if the fishery is not that mentioned in them the order will be nugatory. The respondent will (we must anticipate) insist, if there be an application for an attachment, that he has not fished in the river Bann ; and that the petitioner wholly failed in this Court, and at the trial, to prove the title he alleged, or any right to fish in the New Cut. Our order, therefore, would be quite nugatory ; it would lead to no result but fruitless litigation. On the other hand, though we refuse to issue an injunction, because the very title alleged is not proved, we do no ultimate injury to the petiÂÂtioner, who, if he can, may assert his title on the other grounds suggested, though he has not in this petition relied on them. 1864. GRAVES v. DAVIES. Nov. 12. So long as a fund remains in Court appliÂÂcable to the payment of debts, a creÂÂditor may obÂÂtain leave to prove his deÂÂmand, though a final decree has been made in the cause. Tam was an appeal from an order of the Master of the Rolls, dated the 22nd of April 1864. The cause petition in this matter was presented for the purpose of administering the real and personal estate of Henry Davies deceased, and was referred to Master Litton under the 15th section of the Court of Chancery (Ireland) RegulaÂÂtion Act 1850. The usual advertisements and postings for creditors having been duly published, pursuant to the 8th General Order CHANCERY REPORTS. 91 of the Masters of February 1851, on the 25th of' April 1862, Mr. John Litton, the solicitor for' the petitioners, was furnished by Messrs. Hallowes & Hamilton, the solicitors for Messrs. Moss and Co., bankers of Liverpool, with an affidavit by Mr. Gilbert Winter Moss, one of the firm of Moss & Co., claiming a sum of 13,706. 15s. 6d. against the assets of Henry Davies, on foot of banking transactions between Messrs. Moss & Co., and the firm pf Henry Davies & Co., sharebrokers, of which the deceased was a partner. On the 4th of June 1862 a notice was served through the notice office on Messrs. Hallowes & Hamilton. The notice, which was enÂÂtitled in the cause, was addressed to Messrs. Hallowes & Hamilton, solicitors for the claimants, and was as follows : "...