Kiely v Massey

• Jurisdiction: Ireland
• Judgment Date: 09 November 1880
• Date: 09 November 1880
• Court: Chancery Division (Ireland)

Appeal.

Before LORD O'HAGAN, C., MORRIS, C. J., DEASY and FITZ GIBBON, L. JJ.

KIELY

and

MASSEY.

O'Brien v. TaylorUNK 6 Ir. C. L. R. 124.

Hargreaxe v. Meade 9 Ir. C. L. R. App. 45.

Lord Bellew v. MarkeyUNK 2 L. R. Ir. 187.

Lloyd's Banking Company v. Ogle 1 Ex. Div. 262.

Practice G. O. XIII., R. 1 Motion for leaxe to mark final judgment Insufficiency of affidavit Renewing unsuccessful motion.

VOL. VI.] Q. B., C. P., & EX. DIVISIONS. .14.5 KIELY v. MASSEY (1). Appeal. 1880. Practice-G. 0. XIII., B. 1-Motion for leave to mark final judgment- Insufficiency of affidavit-Renewing unsuccessful motion. On a motion for leave to sign final judgment under Order XIII., R. 1, the affiÂÂdavit in support of the motion must not only verify the cause of action, but the deponent must pledge his belief that there is not any answer of any kink to the Plaintiff's demand ; and the absence of this averment is not supplied by the fact of the Defendant making an affidavit in answer which shows that he has not any defence to the action. In summary applications under G. 0. XIII., a strict conformity with the provisions of the Order is indispensable. Where a motion is refused with costs, the applicant cannot come in, having supplied the defect which defeated him, and get a new, but substantially similar, motion granted. APPEAL from two orders of the Exchequer Division, refusing with costs two motions of the Plaintiff for leave to sign final judgÂÂment on a specially indorsed writ. The action was brought by the payee against one of the makers of a joint and several promissory note for 13. The Defendant having entered an appearance, the Plaintiff served notice of motion, dated the 9th of June, 1880, for leave to mark final judgment, grounded on an affidavit filed the same day. This affidavit stated that the action was brought to recover 13, the amount of the proÂÂmissory note of the Defendant and one James Callaghan, payable to the Plaintiff ; that the full amount of the note was then justly due and owing to the Plaintiff by the Defendant, and that the DefenÂÂdant admitted the debt to the Plaintiff and paid him interest thereÂÂfor to the 1st of January, 1880 ; that the appearance was entered merely for the purpose of delay, as the Defendant was about selling his farm and leaving the country, and that if the Plaintiff did not obtain leave to enter final judgment he would lose his debt. The Defendant made an affidavit in which he stated that he never received any consideration for the note, or for...