Callan v Marum

• Jurisdiction: Ireland
• Judgment Date: 03 February 1871
• Date: 03 February 1871
• Court: Queen's Bench Division (Ireland)

Q. Bench.

CALLAN

and

MARUM.

Whalley v. Massarene 7 Ir. Jur. N. S. 323.

Carlisle v. WhaleyELR Law Rep. 2 H. L. 391.

Beckham v. Knight 7 Scott, 346.

Carden v. The General Cemeteries Company 7 Scott, 348; S. C. 7 Dowl. 425.

Beckham v. Knight 7 Dowl. 409.

Carden v. The General Cemeteries Company 7 Scott, 348; 7 Dowl. 425.

Christie v. RichardsonENR 3 T. R. 78.

Benwell v. BlackENR 3 T. R. 643.

Snook v. Mattock 5 A. & E. 239l 249.

Whalley v. Massarene 7 Ir. Jur. N. S. 323.

Green v. Cole 2 Saun. 227.

Carlisle v. WhaleyELR L. R. 2 H. L. 415, 416.

Whalley v. Massarene 7 Ir. Jur. N. S. 323.

Beckham v. Knight 7 Dow. P. C. 409.

Dwyer v. Emerson 1 Cr. & Dix, 394.

Christie v. RichardsonENR 3 T. R. 78.

Burdett v. ColmanENR 13 East, 26.

Carlisle v. WhaleyELR L. R. 2 H. L. 391.

Trustees of Evans's Charities v. Bank of IrelandUNK 1 Ir. C. L. R. 393.

Witham v. Lord Derby 1 Wils. 48, 55.

Practice New Trial Appeal from Order for New Trial Restraining procedings pending Appeal C. L. P. Act, 1856, ss. 41, 44.

VOL. V.] COMMON LAW SERIES. Plaintiff. I do not think he can, consistently with public policy, be allowed to use such a proceeding as a means of procuring a money security for himself. I think this view of the case affords an answer to what certainly created some difficulty in my mind, viz.-the consideration that in the second defence the Defendant is relying on his own fraud. To a certain extent this is true, but the gist of the defence is not fraud, but illegality- and violation of other rules of public policy. In both Nerot v. Wallace and Coppoch v. Bower the same obÂÂjection would have applied. I think the demurrer to the first replication ought to be overÂÂruled, and the demurrer to the second replication allowed. Attorney for the Plaintiff : F. C. Downing. Attorney for the Defendant : P. Stack. CALLAN v. MARITAL Practice-New Trial-Appeal from Order for New Trial-Restraining pro ceedings pending Appeal-C. E. P. Act, 1856, ss. 41, 44. The Court refused to restrain a Plaintiff from proceeding to a. new trial pending an appeal by the Defendant from the order directing the new trial to be had, where the Plaintiff's pending notice of trial did not appear to be wanton, useless, or unjustifiable, or used for oppressive or dishonest purposes. WHITESIDE, C. J., dies. MOTION, on the part of the Defendant, to restrain the Plaintiff from proceeding to a new trial until an appeal from the order for the new trial should be determined by the Court of Exchequer Chamber. M'Donogh, Q. C. (Daniel with him), in support of the motion. Armstrong, Serft. (Keogh with him), contra. The circumstances of the case, the arguments, and the cases cited, appear fully in the judgments. Cur. adv. vult. 116 THE IRISH REPORTS. (I. R. FITZGERALD, J. :- I do not propose to refer to the affidavits now before us more than may be necessary for explaining my opinion. Unfortunately, a spirit of acrimony seems to have seized the parties, and the affiÂÂdavits are replete with personal matters wholly foreign to the motion. At the trial of the cause, the Chief Justice directed a verdict for the Defendant on all the issues, but, on a new trial motion, the majority of the Court were of opinion that some of the substantial issues should have been submitted to the jury; and the Court, accordingly, on the 19th of January, by its order, set aside the verdict, and directed a new trial to be had. The Plaintiff, on the same day, gave notice of trial for the preÂÂsent after sittings ; but .the Defendant, having given notice of appeal from the order of the 19th January, now moves to restrain the Plaintiff from proceeding to trial until that appeal shall have been finally determined. The Defendant in his affidavit anÂÂnounces his intention to carry the appeal to the House of Lords if the decision of the Court of Exchequer Chamber should be adverse to him. The Defendant's counsel urged, with great force, the maniÂÂfest inconvenience of permitting a trial now to be proceeded with which may be followed by a bill of exceptions on the part of the Defendant, and thus leave two lines of proceedings going on, the latter of which would prove to be wholly useless if the Court of Exchequer Chamber or the House of Lords should, on the pendÂÂing appeal, decide in his favour. The Plaintiff's counsel, on the other hand, pointed out that he had obtained the judgment of the Court of Queen's Bench, and had a right to assume it to be correct, and to avail himself of the order of the Court directing a new trial ; also that, probably, some years might elapse before the final decision of the pending appeal, should it be prosecuted ; and that if he should be now prevented from ascertaining his demand, and finally succeed on the appeal, success might be useless, as the remainder of his witnesses might be dead or absent.. The Plaintiff's counsel contended that we had no jurisdiction voL. v.] COMMON LAW SERIES. to make the order now asked for ; and further, that, if the Court had jurisdiction, it ought not, under the...