Walsh v Ryan

• Jurisdiction: Ireland
• Judgment Date: 21 January 1895
• Docket Number: (1894. No. 745.)
• Date: 21 January 1895
• Court: Chancery Division (Ireland)

Walsh

and

Ryan.

V.-C.

(1894. No. 745.)

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1895.

Practice — Trial by jury — Action in Chancery Division for injunction — Order XXXVI., Rule 3 — Transfer to Common Law Division.

An action was brought in the Chancery Division for an injunction to restrain certain nuisances and trespasses to the plaintiff's premises, situate in the City of Dublin, and the obstruction of a way or passage and the access of light and air thereto, and for damages. The defendant applied for an order for a trial with a jury, and that they should visit the premises; or, that the action should be transferred to a Common Law Division:—

Held, that under Order XXXVI., Rule 3, the Court had a discretion as to ordering a trial with a jury; that the onus lay on the person requiring a jury of establishing the propriety of having a trial by such a tribunal; that under the circumstances the defendant had not discharged that onus, and that a trial with a jury should not be ordered:—

Held also, that the action should not be transferred to a Common Law Division.

Differences between the Irish and English Rules as to right to trial by jury considered.

Motion by the defendant that the trial of the action be had by the Vice-Chancellor and a common jury of the city of Dublin, and that the said jury visit the premises alleged to be injured by the defendant; or that the action be transferred to a Common Law Division.

The action was brought for an injunction to restrain the defendant from (a) using or permitting to be used a certain urinal or water-closet on the defendant's premises in Merrion-row, Dublin, so as to be a nuisance to the plaintiff's adjoining premises, (b) discharging certain noxious matter from the said urinal or closet in and upon the plaintiff's said premises; (c) wrongfully obstructing a certain private way or passage at the rere of the premises known as the Shelbourne House, Merrion-row, and obstructing the access of light and air to and through the said passage; (d) trespassing on the plaintiff's premises and erecting a certain shed and ventilator on the plaintiffs wall; and for damages.

The statement of claim alleged that the defendant had erected a urinal and water-closet immediately adjoining the plaintiff's dining-room and so close to the side wall thereof that the water-closet could not be used without the pumping of the cistern being heard in the plaintiff's dining-room: the urinal and water-closet had been so constructed that noxious matter from the same permeated through the wall of the plaintiff's house partially destroying same, and rotted and destroyed the paper, and ran down on the inside of the basement wall of the house. There was a covered passage at the rere of the...