Barnett v Lucas and Others

• Jurisdiction: Ireland
• Judgment Date: 16 January 1872
• Date: 16 January 1872
• Court: Court of Exchequer Chamber (Ireland)

Exch. Cham.

Before WHITESIDE, C. J., POGGOT, C. B., O'BRIEN, FITZGERALD, and BARRY, JJ., and FITZGERALD, HUGHES, and DEASY, BB.

BARNETT

and

LUCAS AND OTHERS.

Gains v. RouseENR 5 C. B. 422.

Mather v. FrazerENR 2 K. & J. 536.

Climie v. WoodELR L. R. 4 Exch. 328.

Hallen v. RunderENR 1 Cr. M. & R. 266.

Flory v. DennyENR 7 Exch. 581.

Winn v. InglibyENR 5 B. & Ald. 625.

Poole's CaseENR 1 Salk. 367.

Fetter v. BealeENR 1 Salk. 11.

Turner v. CameronELR L. R. 5 Q. B. 306.

Read v. Great Eastern Railway CompanyELR L. R. 3 Q. B. 555.

Blake v. Midland Railway Company 18 Q. B. 93.

Pym v. The Great Northern Railway CompanyENR 4 B. & S. 396.

Sheen v. RickieENR 5 M. & W. 175.

Colegrace v. dias SantosENR 2 B. & C. 76.

Judgment recovered Subsequent action for injury to Chattels.

Ver.. VI.] COMMON LAW SERIES. 247 has not been taken away, and could not be taken away without Q. Bench. express words. The Legislature has, however, passed a very im- 1872. portant Act for the Local Government of Ireland, the 34 & 35 THE QuE„N Vict. c. 109 ; and, though it is not so expressed, still I think itv. iRANKLIN. was intended by the 20th and 21st sections of that Statute to subÂÂstitute a compendious proceeding for the trial of controverted elecÂÂtions, in lieu of that by quo u;arranto, which might lead to proÂÂtracted and expensive litigation. No argument has been addressed to us to prove that this case does not fall within the provisions of the Act, and I am clearly of opinion that it does ; and I am equally of opinion that it is the duty of a Judge not to criticize but to execute the Acts of the Legislature ; and, therefore, although I have every respect for what has been said by my learned brethren, I am of opinion that the writ of quo warranto ought not in this case to issue. Conditional order absolute. Attorney for the Relator : J. Blacquiere. Attorney for the Defendant : J. Mason. (EXCH'EQUER CHAMBER) (1). .Exch. Chum. BARNETT v. LUCAS AND OTHERS. 1872. Lord Campbell's Act-Judgment recovered-Subsequent action for injury to Jan. 16. Chattels. I. A judgment recovered by a widow, as administratrix of her husband, unÂÂder Lord Campbell's Act (9 & 10 Vict. c. 93, amended by 27 & 28 Viet. c. 95), for damages for the death of her husband through the negligence or, breach of duty of the Defendants :-Held-affirming the decision of the Court of Common Pleas--(dis. FITZGERALD, B.), to be no bar to a subsequent action brought by her, as administratrix of her husband, to recover damages for injuries, arising from the same cause, to his personal property. 2. A plaint by an administratrix to recover damages for injuries to " personal chattels" of the intestate, held (reversing the decision of the Court of Common Pleas) to be sustained by proof of injuries to machinery firmly attached, by bolts and screws, to the walls and floors of a building held by the intestate as tenant from year to year, and in the nature of trade fixtures removable as beÂÂtween landlord and tenant. (1) Before WHITESIDE, C. J., Pr- and BARRY, JJ., and FITZGERALD, GUT, C. B., O'BRIEN, FITZGERALD, HUGHES, and DEASY, BB. 248 THE IRISH REPORTS. [L R. Exch. Cham. AL-nor; by the Plaintiff, as administratrix of her husband, to re 1872. cover damages for injuries to his personal property by the explosion BARB-Err of a boiler supplied to him by the Defendants ; plea in bar, a judg LUCAS. ment recovered in a former action by the Plaintiff, as adminibtra.. trig of her husband, against the Defendants, for damages for the death of her husband through the same explosion; issue, whether the causes of action were the same. At the trial the Plaintiff had a verdict for 161; and leave was reserved to the Defendants to move that the verdict be entered for them, if the Court should be of opinion that the learned Judge ought to have directed the jury that the causes of action were the same : or, that the damages should be reduced : and a conditional order having been obtained pursuant to the leave reserved, the Court of Common Pleas decided, that the learned Judge was right in refusing to direct the jury that the causes of action were the same, and discharged the conditional order, so far as it was sought to enter the verdict for the Defendants ; but the Court ordered that the amount of the verdict should be reduced to a nominal sum. See the case reported, Ir. R 5 C. L. 140. Appeal by the Plaintiff against so much of the order as directed the reduction of the amount of the verdict ; and cross-appeal by the Defendants against so much of the order as discharged the conÂÂditional order to enter the verdict for them. May, Q. C., and M`Kane, for the Plaintiff, cited the following eases, in addition to those cited in the Court below : -Gains v. Rouse (1) ; Mather v. Frazer (2) ; Climie v. Wood (3) ; Hallen v. Runner (4) ; Flory v. Denny (5) ; Winn v. Inyilby (6) ; Poole's Case (7). They also cited 17 & 18 Viet. e. 55, s. 7, and 23 & 24 Viet. 0. 154, s. 17. Law, Q. C., and Porter, in addition to the cases, referred to by them in the Court below, cited Fetter v. Beak (8) ; Turner v. CaÂÂmeron (9). Cur. adv. vult. (1) 5 C. B. 422. (2) 2 K. & J. 536. (3) L. R. 4 Exch. 328. (4) 1 Cr. M. & R. 266. (5) 7 Exch. 581. (6) 5 B. & Ald. 625. (7) 1 Salk. 367. (8) 1 Salk. 11. (9) L. R. 5 Q. B. 306. VOL. VI.] COMMON LAW SERIES. 249 FITZGERALD, B. :- Exch. Cham. 1872. In this case the Plaintiff sues as the administratrix of Robert BA RNETT Barnett, deceased. The matters of fact stated in her plaint, which v. contains four counts, are admitted. They are, in substance, that LUCAS. the Defendants, who carry on the business of manufacturers of Jan. 22. and dealers in boilers for steam engines, did, in the course of their business, sell to Robert Barnett in his lifetime a boiler to be used, to their knowledge, in a certain flax mill of BarÂÂnett in connexion with the engine and machinery in the same, and among the plant, property and goods therein contained ; that this sale was on the terms that the boiler was fit and proper to be used, and could be safely used for the purposes aforeÂÂsaid, and had been skilfully and carefully constructed by the DeÂÂfendants ; in two of the counts it is alleged that it was warranted by the Defendants as a first-class job ; that it was not a first-class job ; that it was not fit to be used for the purposes aforesaid, and was of bad materials and insufficient construction ; and that by reason of the premises, it, while being properly used by Barnett in his lifeÂÂtime for the purposes aforesaid, exploded in the mill beside the said engine and machinery, and among the said plant, property, and goods, being the personal chattels of Barnett, and destroyed a great part thereof, and injured and rendered useless the remainder. In two of the counts the chattels destroyed and injured are alÂÂleged to have been the chattels, late of Barnett ; but then (that is at the time of the destruction and injury) of the Plaintiff, as his ad ministratrix. It was proved at the trial that Barnett was killed by and at the time of the explosion alleged. The two counts which I have last mentioned were, I presume, added for the purpose of meeting the possible case of the death of Barnett and the injury to the chattels not being precisely contemÂÂporaneous; but the cause of action, whether the Defendants' breach of contract or the explosion caused by their default, was clearly in the lifetime of the intestate. From this state of facts it seems to me clear that if the injury to Barnett's person had not produced his immediate death, he would in his lifetime have had a cause of action against the Defendants, which he might have pursued VOL. VI. 250 THE IRISH REPORTS. Exch. Churn. either in tort or contract, and might have recovered damages, 1872. not only in respect of the injury to the chattels, with which the present action is conversant, but in respect of the injury to his person, by which his means of improving his property was affected and his expenses increased. He would, however, have had but one cause of...