Young v Halahan

• Jurisdiction: Ireland
• Judgment Date: 27 January 1875
• Date: 27 January 1875
• Court: Chancery Division (Ireland)

V. C. Court.

YOUNG

and

HALAHAN.

Motte v. Boxwell Ir. R. 3 Eq. 167.

Thompson v. Lambert Ir. R. 2 Eq. 433.

Holmes v. PowellENR 8 De G. M. & G. 572.

Allen v. AnthonyENR 1 Mer. 282.

Harris v. PepperellELR L. R. 5 Eq. 1.

Burnell v. BrownENR 1 Jac. & W. 168.

Wright v. GoffENR 22 Beav. 207.

Earl of Bradford v. Earl of RomneyENR 30 Beav. 431.

Shackleton v. SutcliffeENR 1 De G. & Sm. 609.

Torrance v. BoltonELR L. R. 14 Eq. 124.

Sells v. SellsENR 1 Dr. & Sm. 42.

Murray v. PalmerENR 19 Beav. 305.

Wright v. GoffENR 22 Beav. 214.

Affidavits Form of — Admissibility in evidence ——— Vendor and purchaser — Rectification of purchase deed — State of premises at time of contract.

70 THE IRISH REPORTS. [I. It. Ch. App. The following is the material portion of their Lordships' 1874. order :- THE " ENERGIE," "This Court doth order and adjudge that the judgment for the Defendant given in the Court of Admiralty be reversed and set aside, and judgment given for the Plaintiff, to be entered up for such sum as the Registrar of the said Court of Admiralty, with his mercantile assessors, may ascertain to be due from the Defendant to the Plaintiff for damages arising from, or consequential upon, the detention of the cargo of timber from the lodging of the stop-order on the 3rd day of May, 1873, until the 21st day of May ; and doth further order that the Plaintiff do have the costs of the proceeding on his petition in the said Court of Admiralty, up to the time of the entering up of the judgment for damages, when ascertained-the said costs to be taxed and ascertained by the Registrar of the Court of Admiralty. And it is further ordered that each party do abide their own costs of this appeal matter" (1). Solicitors for the Appellant : Messrs. G. D. Fottrell si Son. Solicitors for the Respondent : Messrs. J. T. Hamerton Son. V. C. Court. 1875. Jan. 14, 15, 27. YOUNG v. HALAHAN. Affidavits-Form of-Admissibility in evidence-Chancery Act, s. 104-162nd General Order-Vendor and purchaser-Rectification of purchase deed-State of premises at time of contract. 1. As a general rule, affidavits not framed in the form of answers to interÂÂrogatories pursuant to s. 104 of the Chancery Act are not admissible in evidence at the hearing ; but the Court has jurisdiction, in a proper case, to dispense with the requirements of that section. 2. The above rule of exclusion does not apply to affidavits filed, before issue joined, for the purpose of and used upon an interlocutory motion. 3. A deed of conveyance to a purchaser, of lands held under a lease, purÂÂported to grant the whole of the demised premises without exception or qualiÂÂfication, and the covenants for title corresponded with the granting part; the vendor had previously assigned a portion of the premises to a Railway Company by a deed which had not been disclosed to the purchaser, but the works conÂÂstructed by the company upon that part of the premises were of such a character as to be apparent to any one approaching or looking at them, and the purchaser was aware of them before he purchased :-Held, that the condition of the preÂÂmises being known to both parties at the time of the contract, they should be (1) A further appeal to the Privy Council is pending.-REP. taken to have contracted as to them in that condition, and that the deed of con- V. C. Court. veyance should be rectified so as to carry out the real contract between the 1875. parties. YO1TNG SUIT to restrain the Defendant from continuing an action of HALLuAN covenant instituted by him, and to rectify a deed of assignment of the 21st August, 1871. The Plaintiff held part of the lands of Ball in afana, for a term of 31 years, under a lease which contained a covenant against assignÂÂment without the landlord's consent. The Plaintiff, on the 16th of February, 1871, assigned to a Railway Company a part of the premises pursuant to an award under the Irish Lands Clauses Act, and the reserved rent was apportioned. The Plaintiff, for further consideration, by deed of the 26th of March, 1871, also assigned the right to the gateway and passages leading to his house to the Railway Company, to enable them to construct an embankment in front of the house. Subsequently, the Plaintiff set up the premises to be sold by auction, subject to a condition of sale that the purchaser should not object by reason of the Railway Company having taken a portion of the lands, the reserved rent having been reduced. The Defendant was declared the purchaser, and the Plaintiff assigned the premises to him by a deed of the 21st August, 1871, which recited the sale by auction, but the portions of the lands assigned to the Railway Company were not excepted from the granting part, and the covenants for title were so framed as to leave the Plaintiff liable in respect of the portion of the premises assigned to the Company. Soon after the sale the Defendant entered into possession, and shortly afterwards commenced an action of coveÂÂnant against the present Plaintiff, the breach complained of being the assignment of the gateway and passages to the Railway ComÂÂpany. It was admitted that it was through mistake that the land taken by the Railway Company under the award had not been excepted from the assignment to the Defendant, and the dispute was in respect of the assignment to the Railway Company of the right to the gateway and passages by the deed of the 26th of March, 1871, the existence of which latter deed had not been disclosed to the-Defendant. There was a conflict of evidence as to 72 THE IRISH REPORTS. [I. R. V. C. Court. whether the passages had been cut off by the embankment before 1875. the date of the sale to the Defendant. YOUNG The Defendant having tendered in evidence affidavits which HAIARAw, were not prepared in the form of answers to interrogatories set out at the head of the affidavits, as required. by s. 104 of the Chancery (Ireland) Act, 1867, Mr. W. O'Brien, Q. C., objected to their reception, and, relying upon Motte v. Bonze11 (1), contended that Thompson v. Lambert (2) did. not apply, the present practice being now so long established. Mr. W. Johnson, Q. C., and Mr. 0' Riordan, for the Defendant, argued that Thompson v. Lambert decided that the Court in a proper case had jurisdiction to relax the rule laid down by s. 104 of the Act, and contended that Motte v. Boxwell was decided on the ground that the affidavits were objectionable in substance as well as bad in form. THE VICE-CHANCELLOR : The decision of the late Master of the Rolls in the case of ThompÂÂson v. Lambert shows that I have jurisdiction in a proper case to dispense with the requirements of the 104th section of the Chancery Act. I do not quarrel with that decision, and I am prepared to follow it on a suitable...