Keogh v Leonard

• Jurisdiction: Ireland
• Judgment Date: 25 May 1877
• Date: 25 May 1877
• Court: Chancery Division (Ireland)

V. C. Court.

KEOGH

and

LEONARD.

The Official Manager of the National Insurance and Investment Association v. Carstairs 9 Jur. (N. S.) 955.

Clarke v. LawENR 2 K. & J. 28.

The National Insurance Association v. Carstairs 9 Jur. (N. S.) 955.

— Withdrawing affidavit — Cross-examination.

VOL. XI.] EQUITY SERIES. 365 THEIR LORDSHIPS' order simply affirmed the decree of the Ch. App. Master of the Rolls, and dismissed the appeal with costs. 1876. LEWIS Solicitors for the Appellant : Messrs. Wm. Fry 81. Son. v. Lmvius. KEOGH v. LEONARD. Chancery Act, 1867, s. 93-Withdrawing affidavit- Cross-examination. Every witness who has made an affidavit to be used at the hearing of a 'cause in which issue is joined, or upon any motion, petition or other proceeding, and of whose cross-examination notice has been served, must be produced for cross-examination, even though his affidavit be withdrawn by the party who has filed it and given notice of using it. BILL to set aside two deeds as frauds upon a power. The case came on on motion for a decree. .Mr. White, Q. C., for the Plaintiff, having stated that he would endeavour to prove certain documents by cross-examining one of the witnesses for the DeÂÂfendant, Mr. Walsh, Q. C., for the Defendant, stated that he would not offer any proofs. Mr. White, Q. C., for the Plaintiff, contended that it was not competent for a party to withdraw an affidavit of a witness, bearÂÂing on the merits of the case, when notice that he would be cross-examined had been given; and he cited The Official Manager of the National Insurance and Investment Association v. Carstairs (1), and Clarke v. Law (2). Mr. Walsh, Q. C., for the Defendant, contended that this being a case to set aside deeds on the ground of fraud, the onus of proof lay on the Plaintiff, and that he having failed to prove his case the Defendant's proofs became unnecessary, and therefore the case of The Official Manager of the National Insurance and InvestÂÂment Association v. Carstairs (1) showed that he could withdraw his proofs. (1) 9 Jar. (N. S.) 955. (2) 2 B. & J. 28. 366 THE IRISH REPORTS. [I. V. C. Court. THE VICE-CHANCELLOR :- I am of opinion that the words of the Act are quite clear, independently of any authority. The 93rd section of the Act provides [His Honor read the section]. There are two distinct enactments contained in that section ; one, that every witness, whether a party or not, who has made an affidavit to be used either at the hearing of a...