Arkins v Armstrong

• Jurisdiction: Ireland
• Judgment Date: 07 May 1869
• Date: 07 May 1869
• Court: Exchequer (Ireland)

Exchequer.

ARKINS

and

ARMSTRONG.

Crosse v. SeamanENR 11 C. B. 524.

Hughes v. GuinnessUNK 4 Ir. C. L. R. 314.

Devine v. London and North-Western Railway Co.UNK 17 Ir. C. L. R. 174.

Walsh v. WalshUNK 17 Ir. C. L. R. 195.

Blackmore v. HiggsENR 15 C. B. N. S. 790.

Smith v. HarnorENR 3 C. B. N. S. 829.

Hughes v. GuinnessUNK 4 Ir. C. L. R. 314.

Fewster v. BoggettENR 9 M. & W. 20.

Wallen v. SmithENR 3 M. & W. 138.

Parr v. LillicrapENR 1 H. & C. 615.

Boulding v. TylerENR 3 B. & S. 472.

Robertson v. Sterne 13 C. B. N. S.

Richards v. BluckENR 6 C. B. 443.

Blackmore v. HiggsENR 15 C. B. N. S. 793.

Practice Costs 16 & 17 Vict. c. 113, s. 243, and 19 & 20 Vict. c. 102, s. 97.

Von. III.] COMMON LAW SERIES. 373 ARKINS v. ARMSTRONG. Exchequer. Practice-Costs-16 (S- 17 Vict. c. 113, s. 243, and 19 0 20 Vict. c. 102, s. 97. 1869. Where a Plaintiff has recovered 8 by verdict upon certain counts in eon- 28. April y 28 7. tract, and the Defendant had paid into Court 12, in satisfaction of the cause of action stated. in another count in contract of the same writ of Summons and Plaint, which sum of 12 has been found by the jury to be sufficient, the Plaintiff is entitled to full costs, although both he and the Defendant reside within the Civil Bill jurisdiction in which the causes of action arose, notwithÂÂstanding the 16 & 17 Viet. c. 113, s. 243, and the 19 & 20 Viet. c. 102, s. 97. An action is not the less an action of contract within the meaning of the costs sections of the Common Law Procedure Amendment Act (Ireland), 1853 and 1856, respectively, because in the writ of Summons and Plaint certain counts in tort are joined to the' counts in contract, in pursuance of the 54th section of the Common Law Procedure Amendment Act (Ireland), 1853. Blackinore v. Higgs, 15 C. B. N. S. 790, discussed. Tins case came before the Court upon motion by way of appeal from the decision of the Taxing Master, refusing to allow the Plaintiff any costs, on the ground. that he had. not recovered in an action of contract 20. The Plaintiff and the Defendant admitÂÂtedly resided within the same Civil Bill jurisdiction in which the cause of action had arisen ; and, as a matter of fact, the Plaintiff had recovered by verdict the sum of 8 upon certain counts in assumpsit, and the Defendant had. paid into Court 12 in discharge of the Plaintiff's claim on foot of another count in assumpsit, which sum of 12 had been found by the jury sufficient to satisfy the Plaintiff's claim. There Were also two counts in the writ of SumÂÂmons and Plaint framed in tort, and the jury had found for the Defendant upon the issues arising thereupon respectively. No certificate was given by the Judge who tried the case. The Taxing Master's certificate was as follows : " I decline to tax any costs for the Plaintiff, inasmuch as he recovered but 8 by the verdict, and the 12 was withdrawn from the case by the lodgment." The notice upon which the present motion was grounded asked for an order that the Taxing Master be directed to review his taxation of the Plaintiff's costs in this cause, and be directed to allow to the Plaintiff full costs as between party and party, upon Von. III. 2 F (1) 11 C. B. 524. (2) 4 Ir. C. L. It. 314. (3) 16 & 17 Vict., c. 113, s. 243.- " The several fees mentioned and set forth in the Schedule E, to this Act annexed, shall be the fees chargeable against any party, Plaintiff or DefenÂÂdant, in respect of the specified items of proceedings, to which the same shall be applicable, until, &c. : provided alÂÂways, that in case the Plaintiff in any action of contract (except for breach of promise of marriage), shall recover, exclusive of costs, less than twenty pounds, or in any action for any wrong or injury disconnected with contract (except replevin, or for slander, libel, malicious prosecution, seduction, or criminal conversation), a sum not exÂÂceeding five pounds, the Plaintiff in any such action shall be entitled to no more than one-half of the ordinary costs, unless the action has been brought for the purpose of trying a right to property more extensive than the sum sued for." 19 & 20 Vict. c. 102, s. 97.-" If in any action of contract brought after the commencement of this Act in thesuperior Courts (save for breach of promise of marriage), when the parties reside within the jurisdiction of the Civil Bill Court of the county in which the cause of action has arisen, the Plaintiff shall recover, exclusive of costs, a sum less than twenty pounds, or in any action for any wrong or injury disconnected with contract (not being for replevin, slander, libel, malicious prosecution, seduction, or criminal conÂÂversation), a sum not exceeding five pounds, the Plaintiff in any such action shall not be entitled to any costs, unless at the trial of such cause the Judge shall certify on the back of the record either that the case was one which could not he tried in the Civil Bill Court, or that, although within the jurisdicÂÂtion of the Civil Bill Court, it neverÂÂtheless was a fit case to be tried in one of such superior Courts ; or (in case there shall be no trial) unless the Court or a Judge shall, on motion, make an order to the like effect ; and in case there shall be no such certifiÂÂcate or order, it shall not be necessary to...