The Estate of James Boak, Deceased. Boak v Moore

• Jurisdiction: Ireland
• Judgment Date: 07 February 1881
• Date: 07 February 1881
• Court: Court of Appeal (Ireland)

Appeal.

Before MAY, C. J., and DEASY and FITZ GIBBON, L.JJ.

IN THE MATTER OF THE ESTATE OF JAMES BOAK, DECEASED. BOAK

and

MOORE

ex parte PearsonELR L. R. 3 Ch. App. 443, at p. 449.

Dickson v. HarrisonELR 9 Ch. D. 243.

Hungerford v. CoghlanUNK 1 L. R. Ir. 304.

Massy v. DonovanUNK 3 L. R. Ir. 85.

Owens v. DickensonENR 1 Cr. & Ph. 48.

Woodgate v. FieldENR 2 Hare, 211.

Whitaker v. Wright Ibid. 310.

Cardell v. HawkeELR L. R. 6 Eq. 404.

Whitaker v. WrightENR 2 Hare, 310.

Field v. TitmussENR 1 Sim. (N. S.) 218.

Brown v. RutherfordELR 14 Ch. D. 687.

Barton v. BartonENR 3 K. & J. 512.

Practice —— G. O. XVIII., R. 10 — G. O. XXVIII., R. 10 — Default of Pleading — Judgment for administration — Proof of debt — Claim against assets of deceased person — Uncorroborated testimony of claimant.

LAW REPORTS (IRELAND). [L. R.I. If I had any discretion as to costs, I should exercise it against him, for it was not a creditable thing to revoke the power of attorÂney. But I cannot say that it was a fraud. As the law stands at present, I am coerced to give him his costs, but I do it reluct antly. Solicitors for the Plaintiff : Messrs. D. 43, T. Fitzgerald. Solicitor for the Defendant : Mr. Toomy. IN THE MATTER OF THE ESTATE OF JAMES BOA.K, DECEASED. BOAK v. MOORE (1). Practice-Judicature Rules-G. 0. XVIII., R. 10-G. 0.:XXVIII., R.10 -Default of Pleading-Judgment for administration-Proof of debt Claim against assets of deceased person-Uncorroborated testimony of claimant. General Order XVIII., Rule 10, only applies to eases where both parties have pleaded. In a creditor's suit for administration, the giving of judgment for administration upon default of pleading, under G. 0. XVIII., Rule 10, and directing the usual accounts, does not relieve the Plaintiff from the onus of proving his claim in Chambers. The claim of a party against the assets of a deceased person, which is supÂported only by the uncorroborated testimony of the claimant, will in no case be allowed. Admission of further affidavits upon an appeal refused. Decision of Chatterton, V. C., affirmed. APPEAL by the Plaintiff William Boak from the Vice-ChanÂcellor's order of the 18th of November, 1880, refusing his motion: to vary the Chief Clerk's certificate, filed the 22nd of July, 1880, and dismissing the action with costs. The Appellant also sought by his notice to use three specified affidavits (filed respectively on the 23rd of May, 1880) as further evidence on the argument of the appeal. The hearing upon adjourned summons is reported. below, 3 L. R. Ir. 222. (1) Before MAY, C. J., and DEASY and FITZ GIBBON, L.JJ. VOL. VII.] CHANCERY DIVISION. The statement of claim set forth that Aaron Boak, late of the County Tyrone, died in 1857, having bequeathed all his property to the Plaintiff, subject (among other charges) to a sum of £300, to be paid to the testator's son James Boak (since deceased), after the expiration of two years, or sooner if the Plaintiff should see a place suitable for him ; that in 1859 the Plaintiff purchased a farm for James Boak in the County Donegal for £675, and immediÂately after the purchase paid to James Kilpatrick, the vendor, the 1311111 of £400 in cash, which included the legacy of £300, and £100 advanced by the Plaintiff for James Boak, the remainder of the purchase-money, viz., £275, being secured to Kilpatrick by the joint and several bond of the Plaintiff and James Boak for £550, on foot of which Kilpatrick recovered several judgments against the obligors in Hilary Term, 1859 ; that the Plaintiff executed the bond only as surety, and immediately after...