Underwood v Darracott

• Jurisdiction: Ireland
• Judgment Date: 04 December 1873
• Date: 04 December 1873
• Court: Rolls Court (Ireland)

Rolls.

UNDERWOOD

and

DARRACOTT.

Hargrave v. HargraveENR 8 Beav. 289.

Johnstone v. ToddENR 3 Beav. 218.

Casborne v. Barsham 5 M. & Cr. 113.

Wilson v. GingerENR 2 Dick. 521; 1 Dan. Ch. Pr. (5th Ed.) p. 983.

Casborne v. Barsham 5 Myl. & Cr. 113.

Practice — Issues — Pro confesso.

Vol.. VIII.) EQUITY SERIES. 345 THE LORD JUSTICE OF APPEAL referred to Sugden V. & P. ch. App. 346, citing The Attorney- General v. Sitwell (1). 1874. CORLESS THEIR LORDSHIPS delivered no formal judgment, but made an v. order of which the following is the material portion :- STARLING. " This Court doth order that the decretal order of the Right Hon. the Lord High Chancellor of Ireland, dated the 19th of June, 1873, do stand affirmed with the following variations, that is to say, It is ordered that the Defendant H. J. Sparling shall not be at liberty to rely as an objection to the title upon the fact that the premises in the bill mentioned are subject to the rent reserved by the lease dated the 1st day of May, 1848, or upon any objection appearing upon the abstracts heretofore furnished, but to be entitled to the evidence and documents which the solicitor of the Plaintiff in his replies to the requisitions of the Defendant's soliciÂÂÂtor has undertaken to furnish, save the copy and inspection of the conveyance from the Incumbered Estates Court, which the Lord Chancellor in Chambers may dispense with if satisfied that by any change of circumstances since the month of July, 1872, such copy and inspection are not within the procurement of the Plaintiff. And it is further ordered that the said Defendant be entitled to raise and rely upon any objection not appearing in the abstracts as he may be advised ; and it is ordered that each party do abide his own costs of this apÂÂÂpeal." Solicitor for the Appellant : Mr. R. Meeredy. Solicitor for the Respondent : Mr. A. 11P.Mahon. Rolls. 1873. UNDERWOOD v. DARRACOTT (No. 1). Practice-Issues-Pro confesso. If the party on whom rests the affirmative of issues directed to be tried by a jury before the Court does not proceed to trial in the time directed by the order, the proper course is to move to have the issues taken pro confesso. By an order of the 8th of June, 1872, the Court directed that certain questions of fact should be tried by a jury before the Court ; and it was further ordered that the proof of the affirÂÂÂmative of the questions should rest with the Plaintiff, and that the trial should be had at the sittings after the ensuing MichaelÂÂÂmas Term. No step was taken by the Plaintiff to have the (1) 1 Y. & Coll. Exch. 570. May 15, 16, 17. 346 THE IRISH REPORTS. [I. R. Rolls. questions tried ; but at the end of the sittings after Michaelmas 1873. Term an application was made to the Court by the Plaintiff ex UNDERWOOD pane to extend the time, grounded on an affidavit stating that the V. Plaintiff's solicitor had left the profession and gone to reside abroad. His Honor, considering the affidavit wholly insuffiÂÂÂcient, declined to make an order to postpone the trial of the issues, and directed that notice of any further application for the same purpose should be given to the Defendants. Nothing further was done by the Plaintiff, nor was any other application made to post= pone the trial of the issues. Mr. Jellett, Q. C., for the Defendant, moved that the issues directed by the order of the 8th of June, 1872, be taken pro conÂÂÂfesso against the Plaintiff for his default in proceeding with the trial :.Hargrave v. Hargrave (1); Johnstone v. Todd (2) ; Casborne v. Barsham (3). Mr. Byrne, Q. C., resisted the application on the ground that, one of the issues to be tried being the execution of a deed by a person in the island of Trinidad nearly twenty years ago, the Plaintiff's newly-appointed solicitor had used all due diligence since his appointment to procure evidence, and was in communicaÂÂÂtion with persons abroad on the subject. He asked that a reasonÂÂÂable time might be allowed to prepare for trial, and cited Wilson v. Ginger (4). His Honor stated that ample time had originally been given to the Plaintiff to have made every preparation to have the question tried within the period which had been fixed by the order. All that was stated as to witnesses being in Trinidad had been taken into...