Oliver Dowell v Edward Hussey

• Jurisdiction: Ireland
• Judgment Date: 26 April 1856
• Date: 26 April 1856
• Court: Queen's Bench Division (Ireland)

Queen's Bench

OLIVER DOWELL

and

EDWARD HUSSEY.

Gillman v. Connor 1 Ir. Law Rep. 346.

Cassan v. CarrUNK 2 Ir. Ch. Rep. 577.

Rutledge v. Rutledge 3 Ir. Law Rep. 102.

Doe d. Ringer v. Blois 8 Dowl. P. Cas. 18.

230 COMMON JAW REPORTS. E. T. 1856. Queen's Bench OLIVER DOWELL v. EDWARD HUSSEY. (Queen's Bench.) April 26. Where, pur- BREWSTER (with him Macclonogh and 7'. R. Henn) moved that suant to the 106th section two orders, dated the 2nd of February and 11th of April, be of the Common Law Proce- respectively set aside or varied, and all proceedings thereon or dure Act, the defendant had thereunder stayed until further order, and that the defendant shall entered a rule that the plain- be declared to be only entitled to the ordinary costs of a defendant tiff prat ceed to trial at the where a record has been withdrawn, and that it be referred to the tri Assizes next after the ex. proper officer to tax the same. piration of This was an action of ejectment, begun the 3rd of January twenty days from the ser- 1855, for recovery of certain lands in the county of Kerry. Issue vice of such rule, and the being joined, notice of trial was served for the Summer Assizes plaintiff not complying of that county, but was afterwards withdrawn. On the 23rd of with such rule, defendant February 1856, notice of trial for the Spring Assizes was served, entered the peremptory which was fixed for the 7th of March last ; but on a consultation order for non- suit and his with special Counsel before the d , had eore te ay fixed for the trial, it costs ; on an was lease, and a application to appeared that there was an outstanding , d notice set aside or vary these served on defendant's attorney to know whether it was the intention rules, without of the defendant to rely at the trial upon the existence of any any grounds stated for such temporary bars ; and to this notice defendant's attorney gave no re-scission, save the ladies reply, and thereupon the record was withdrawn. of the clerk of the attorney : On the 2nd of February the usual Side-bar rule was obtained, Held, that nothing but a for liberty to enter judgment as in case of a nonsuit ;* and the fatality can prevent the plaintiff's attorney swore he did not receive the notice of that order strict opera- ion of the until' the 10th of March , owing to some mistake of his clerk. t rules ; and that the deÂÂfendant having acted reguÂÂlarly, was enÂÂtitled to their protection. * NoTE.-Order of the 2nd of February was :-"...