Joly and Others v Swift

• Jurisdiction: Ireland
• Judgment Date: 29 June 1847
• Date: 29 June 1847
• Court: Court of Chancery (Ireland)

Chancery.

JOLY and others

and

SWIFT.

See the case reported ante, vol. 9, p. 195.

Nelthorp v. Holgate 1 Col. 203.

Richardson v. NixonUNK 7 Ir. Eq. Rep. 620.

Pickett v. Loggon 14 Ves. 215.

Jones v. NixonENR 1 You. 359.

Vooght v. WinchENR 2 B. & A. 662.

410 CASES IN EQUITY. On the whole of the case as it is, however, I think the plaintiff is entitled to redeem, on the terms of taking the sum stated in the deed as the starting point. I shall declare therefore that the deed is a mortgage for that sum, and the defendant must account for such occupation rent as the Master shall fix, giving her credit for any incumbrances upon the land which have been paid by her. She is also to be allowed for all moneys expended by her in lasting and permanent improvements. I shall not make any decree as to the costs until I see how the accounts will turn out. Reg. Lib. 97, fol. 271, 1847. JOLY and others v. SWIFT. Tun was a suit instituted by Joly a trustee and his cestui que trusts as co-plaintiffs, to raise a legacy charged on the real estate of the defendant Swift. A former suit had been instituted by the plaintiff Joly for the same object, but from failing to prove the deed assigning the charge to him had been dismissed with costs (a). The decree dismissing Joly's bill had never been enrolled. It merely directed the bill to be dismissed with costs, and contained no entry of evidence being read. Very soon after this dismiss a notice was served by the plaintiff's solicitor, stating that the plaintiff's demand would be immediately discharged if no further expense was incurred. The defendant did not plead the dismiss, but relied on it in his answer as a bar to the present suit. Argument. The Attorney-General, Mr. Brewster and Mr. Maley, for the plaintiff, submitted that, although the former dismissal was not expressly made without prejudice, it was plain on the face of it that it must have been made purely for failure of proof; that the (a) See the case reported ante, vol. 9, p. 195. CASES IN EQUITY. 411 notice was a subsequent admission of the demand, and proved that this was the case ; that the utmost effect of relying on the dismiss would be to force the plaintiff to rehear that cause, to have the words " without prejudice " added ; that not being enrolled it could not be pleaded, and if set up by answer and not pleaded it was not an absolute bar, but might be explained: Story's Equity Pl., par. 793 ; and that it did not affect Joly's...