Hemphill v M'Kenna

• Jurisdiction: Ireland
• Judgment Date: 02 December 1843
• Date: 02 December 1843
• Court: Court of Chancery (Ireland)

Chancery.

HEMPHILL

and

M'KENNA.

Maple v. Verson 1 Howard, Eq. Exch. 316.

Anonymous caseENR 2 Ves. sen. 414.

Joley v. Stockly 1 Hog. 247.

Biddulph v. MolloyUNK 2 Ir. Eq. Rep. 228.

Whitelegg v. WhiteleggUNK 1 B. C. C. 57.

Morris v. Kelly 1 J. & W. 481.

Rex v. BarrENR 4 Camp. 16.

Hoare v. PeckENR 6 Sim. 51.

Lord bath v. Sherwin Pre. Ch. 261.

Fitton v. Maccless-field 1 Ver. 287.

Earl of Darlington v. BowesENR 1 Eden. 270.

caseENR 1 Ves. sen. 476.

Churchman v. Tunstal 2 Ans. 608.

Paine v. PartrichENR Carth. 191.

Peter v. KendalENR 6 B. & C. 703.

The Attorney-General v. NicolENR 3 Mer. 687.

Howard's Equity Exchequer Vol. 1, p. 304; Vol. 2, p. 530.

CASES IN EQUITY. 57 1S43. Chassoery. HEMPHILL v. M'KENNA. Nov. 19, 30. (Chancery.) Dec. 2. Tars was an appeal from an order of his Honor the Master of the Rolls, Persons entit- led, as execu- tors, to a lease granting an injunction to restrain the defendants from ferrying passen- of ferries over gers for hire across the River Liffey within the limits of the plaintiff's the River Lif- ferries, and from disturbing plaintiff in the enjoyment of his ferries. fey,filed a bill, stating a The bill was filed on the 9th of June 1842, and it stated that King tent by which Charles the Second, by letters patent, dated the 22nd of May 1677, had the Crown had granted all the granted to the Corporation of Dublin and their successors for ever, the ferries on that river to the ferry or passage over the River Liffey, together with the privilege of Corporation of transporting and carrying all manner of passengers over the river, and all Dublin, and that the Cor- fees, profits, commodities and advantages, with the fee of one halfpenny to poration had be taken of every passenger in any of the ferry boats ; together with granted a lease of them to their liberty to erect one or more ferry boat or boats for transporting passen- testator : that gers to and from the city over the water : to hold and enjoy the same to - one of fendants the de hav the Corporation and their successors for ever. And that by the said ing been in the letters patent his said Majesty commanded that no other person or persons - habit of ferry ing passengers should, at any time thereafter, exercise, keep, or maintain any ferry over the river for hire, they boat or boats, or carry any person or persons whatever for gain or hire brought an ac- over the said river, at any place or places between the bridge of Dublin lion against him and ob and Ringsend, other than the Corporation of Dublin and such person or tained a ver- persons as should, from time to time, be lawfully authorised under them. diet in 1841 but that be That by indenture bearing date the 15th of August 1835, the Corpo- and two other persons - ration of Dublin demised to William Walsh, his executors, administrators tinn con ed to carry and assigns, the said several ferries established and used on the said river, passengers across the river together with all the tolls, profits and advantages to the said ferries respect- for hire ; and ively belonging, to hold the same with the appurtenances for the term of they prayed that the de ninety-nine years, from the 29th of September 1817. fendants might That William Walsh by his will bequeathed all his estate and interest be restrained from ferrying passengers across the river for hire within the limits of their ferries. One of the defendants, who was not a party to the action, stated by affidavit that the right of the Corporation was reputed to be confined within certain limits, within which he bad not infringed upon their right, and that neither the Corporation, or any one claiming under them bad, within the memory of living men, claimed or exercised any right outside those limits, or disÂÂturbed the ferries of other persons beyond them. He also stated that the plaintiffs had recently brought an action against him for the disturbance of their ferries, which was still pending. Held, that the plaintiffs were bound to show upon their bill an actual possession of the premises for three years at least before the filing of the bill, and that they had not done so in the present case. Held also, that they should have stated their case fully in the first instance. 58 CASES IN EQUITY. in the said ferries, and his right and title under the lease of August 1835, to the plaintiffs Richard Hemphill and William Walsh, upon trust for certain purposes in the will mentioned ; and that he died on the 13th of May 1840, having appointed the plaintiffs his executors, and that they had proved the will. That Denis Kenna, one of:the defendants, having been for a considerÂÂable time in the constant habit of carrying...