Campbell v M'Clelland

Judgment Date16 April 1886
Date16 April 1886
CourtCommon Pleas Division (Ireland)

C. P. Div.

Before NAISH, C., PORTER, M. R., and FITZ GIBBON, L.J.


Spurr v. HallELR 2 Q. B. D. 615.

Davies v. MarshallENR 10 C. B. (N. S.) 697.

Berdan v. GreenwoodELR 3 Ex. D. 251.

Hawkesley v. BradshawELR 5 Q. B. D. 302.

Costelloe v. ColganUNK 13 Ir. L. T. 61, 373.

Coughlan v. MorrisUNK 6 L. R. Ir. 405.

Martin v. BannisterELR 4 Q. B. D. 491.

Kearney v. HannonUNK 10 L. R. Ir. 17.

Wheeler v. The United Telephone Co.ELR 13 Q. B. D. 597.

Goutard v. Carr Ibid. 598, note.

Nichols v. EvansELR 22 Ch. D. 611.

M' Ilwraith v. GreenELR 14 Q. B. D. 766.

Kelly v. SlaterUNK 7 Ir. C. L. R. 56.

448 LAW REPORTS (IRELAND). [L. R. 1. Ex. Div. of Court, and continue the action for the balance ; he is therefore 1886. not embarrassed. In Costelloe v. Colgan (1) the defendant was per "°"B" mitted to plead payment of rent into Court, and deny the title or CALLANAN. right of the plaintiff to the land. The curial portion of the order was as follows " THE COURT, being of opinion that the 6th paragraph of the defence ought to be set aside, so far as it is a defence to the 1st paragraph of the statement of claim ; and Mr. Drummond, defendant's counÂÂsel, being required by the Court to elect whether the said 6th paraÂÂgraph of the defence should stand as a defence to the 2nd paragraph of said statement of claim, and without prejudice to his right to appeal, and he thereupon electing that it should so stand, doth order that the said 6th paragraph of the statement of defence, so far as it is pleaded to the said 1st paragraph of the statement of claim, be set aside, with liberty to said defendant to amend the said 6th paragraph of the statement of defence by limiting same as a defence to the said 2nd paragraph accordingly, making such amendments, and serving a copy of such amended statement of defence within two days from the date thereof; and it is further ordered that the costs of this motion on both sides be costs in the cause." C. P. Dir. CAMPBELL V. WCLELLAND. 1886. The nature of this case and the pleadings were, so far as April 16. regards the purpose of the present report, substantially identical with those in O'Donnell v. Callanan, except that the plaintiff Campbell also prayed for an injunction. Weir, Q.a, and Cuming, for the plaintiff, moved to set aside the plea of payment as embarrassing. Orr, Q.C., and T. L. 0' Shaughnessy, for the defendant. The argument and cases cited were practically the same as in O'Donnell v. Callanan, supra. (1) 13 Ir. L. T. 61, 373. VOL. XX.] Q. B., C. P., & EX. DIVISIONS. The curial portion of the order of the, Common Pleas Division was as follows : " IT is ordered by the Court (counsel for the plaintiff assenting) that the claim in ejectment in the statement of claim be expunged thereÂÂfrom; and it is further ordered that the plea of payment into Court be struck out of the statement of defence, and thereupon let each side amend his pleadings in conformity with the present order. Let the costs of the motion be costs in the cause." 449 C. P. Div. 1886. CAMPBELL V. M'CLEL- LAND. The defendants in both actions having appealed, the appeal (*) Appeal. in Campbell v. At'Clelland was heard on the 2nd June, 1886, and 1886. that in O'Donnell v. Callanan on the following day. June 2, 3. Orr, Q. C., and T. L. 0' Shaughnessy, for the appellant M'Clelland. Cuming, for the respondent Campbell. William M'Laughlin, Q.C., and .Drummond, for the appellant Callanan. David Lynch, Q. C., and Edward Carson, for the respondent O'Donnell. The following were the authorities referred to in both cases : Spurr v. Hall (1) ; Davies v. Marshall (2) ; Berdan v. Green-, wood (3) ; llawkesley v. Bradshaw (4) ; Costelloe v. Colgan (5); Coughlan v. Morris (6) ; Martin v. Bannister (7); Kearney v. HanÂÂnon (8) ; Wheeler v. The United Telephone Co. (9); Goutard v. Carr (10) ; Nichols v. Evans (11) ; MUlwraith v. Green (12) ; Gen. Ord. XVIII., Rules 3 and 11; Gen. Ord. XXX. (1) 2 Q. B. D. 615. (7) 4 Q. B. D. 491. (2) 10 C. B. (N. S.) 697. (8) 10 L. B. lr. 17. (3) 3 Ex. D. 251. (9) 13 Q. B. D. 597. (4) 5 Q. B. D. 302. (10) Ibid. 598, note. (5) 13 Ir. L. T. 61, 373. (11) 22 Ch. D. 611. (6) 6 L. B. Ir. 405. (12) 14 Q. B. D. 766. (*) Before NAISH, C., PoaTER, M.R., and Frrz GIBBON, Z.J. LAW REPORTS (IRELAND). [L. R. I. Both appeals standing on the list for judgment this day, the Lord Chancellor, before proceeding to give judgment, asked the, counsel for the respective plaintiffs whether, if the defences of title were struck out, the plaintiffs were willing to accept the sums lodged in satisfaction of their causes of action. Both counsel replied in the affirmative. His Lordship then asked the counsel for the respective defendants whether, in that case, they were wilÂÂling to withdraw either their pleas of payment or their kilns of title. Both counsel replied in the negative. NAISH, C. :- In the first of these cases (Campbell v. M'Clelland) the plaintiff claimed 100 by way of damages for a trespass, which trespass, as alleged in the statement of claim, consisted in the erection, and keeping erected by the defendant, of certain pipes in the yard and against the wall of the plaintiff. The plaintiff also claimed an injunction against the continuance of the trespass. In the second of the cases (O'Donnell v. Callanan) the plaintiff claimed a sum of 300 damages for trespass upon his property, but no injunction. The defendants in both cases, by their defences, denied the doing of the acts, and also that the premises were the premises of the plaintiff. They also in both cases pleaded affirmative defences, alleging a right to do the acts complained of-the right in the first ease being claimed by virtue of an alleged acquiescence by the predecessors in title of the plaintiff in the erection of the pipes in question, sufficient, in equity, to create a title ; and the right claimed in the second case being a right of way over the premises. The defendants also in both cases paid a sum of money into Court -in the first case a sum of ls., in the second a sum of 1-alleging in their defences that they paid these sums in lest, conÂÂtrary to what they contended, they were under a liability to the plaintiffs, and that the sums so paid in were sufficient to satisfy the plaintiffs' claims. In both cases the Court below struck out these pleas of payÂÂment, being of opinion that they were calculated to embarrass the • Q. B. C. P. & EX. DIVISIONS 'fn B., . XX.] P., DIVISIONS. 451 fair trial of the action ; and from the orders so made the present Appeal. appeals have been brought. 1886. I will deal with the second case (O'Donnell v. Callanan) first. CAMPBELL It was admitted, on the part of the plaintiff, that the 1 paid in Warr, was sufficient to satisfy any damages he was entitled...

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