Canning v Farren

• Jurisdiction: Ireland
• Judge: K.B.Div.
• Judgment Date: 27 June 1907
• Court: King's Bench Division (Ireland)
• Date: 27 June 1907

Margaret Canning, Plaintiff and Respondent, Sought to Be Continued in the Name of Robert M'Feely, Administrator of Margaret Canning, Since Deceased;

Robert Farren, Defendant and Appellant (1).

K.B.Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1907.

County Court — Decree — Civil-bill appeal — Death of plaintiff (respondent) after notice of appeal — 45 & 46 Vict. c. 29, s. 4 — Continuing proceedings — Practice — Jurisdiction.

Where, after an appeal from a decree of the County Court Judge to the Judge of Assize, under 45 & 46 Vict. c. 29, s. 4, the appellant or respondent dies after notice of appeal, but before the hearing, there is jurisdiction in the Judge of Assize to adjourn the appeal to enable a personal representative of the deceased to be added to the record, and, upon this being done, there is jurisdiction to hear and determine the appeal.

Case stated at Lifford Spring Assizes, 1907, for the opinion of the King's Bench Division, pursuant to the statute in that behalf, by the Right Honourable Mr. Justice Gibson. The case set out as follows:—

1. This appeal was from a decree, dated June 19th, 1906, in a process issued by plaintiff for trover and money received. The defendant duly served and lodged a notice of appeal. The plaintiff died on July 6th, 1906. The appeal was duly listed for the Summer Assizes, 1906, and when the case was called, an order of adjournment, the plaintiff objecting, was made to enable the appeal to be revived. Administration was duly granted to Robert M'Feely on March 12th, 1907. For the plaintiff, Henry, K.C., appeared as counsel; for defendant, Law Smith, K.C., and Babington.

2. For the appellant the argument is that the right of appeal

was not extinguished by death; that the principle “actio Dei nemini facit injuriam” applied; that there was jurisdiction to adjourn the appeal, to enable a personal representative to be added to the record to continue the appeal; and that since the Judicature Act and Rules an appeal could be revived even if there was no such jurisdiction before.

3. For the respondent the contention is that the right of appeal being statutory, and that there being no enactment enabling an appeal to be revived after death, an appeal was wholly lost by death, and could not be maintained whether such death occurred during the period allowed for appealing or at a later time before the appeal was listed; that the Judge of Assize had no jurisdiction to adjourn, an adjournment being a judicial act, as was held in the Crimes Act case, when an adjournment by one Resident Magistrate was held to invalidate a subsequent conviction pronounced in the case so adjourned; that there was no jurisdiction to entertain and adjudicate on an appeal where either of the parties had died, whether the cause of action was in contract or in tort; that there could be no revivor without express statutory authority; that no such authority existed before the Judicature Act, and that the Judicature Rules could not be applied to an inchoate County Court appeal.

4. The general practice has been, I believe, to treat an appeal to the Assizes as abated by death, and such appeal is struck out. The hardship of this is obvious, whether the effect is to leave the decision below standing, discharged from the appeal, or to leave such decision in suspense incapable of execution, which might be the result, at least when the appellant had given security to prevent execution. I am aware of no decision or practice in reference to the rights of the successful party under a decree or dismiss so circumstanced. Where the decree determines continuing proprietary rights it would be most unfortunate if the act of God should convert an appealed, and, perhaps, erroneous decision, into an irrevocable adjudication, binding all rights for all time. The difficulty has been attempted to be removed by legislation, but hitherto such attempts have proved abortive. The difficulty, whether an appellant or respondent dies, is much the same, save that in the latter case the representative of the deceased respondent would usually only be brought before the Court by order in invitum, and if there was no personal representative there could be no order. The death might occur (1) before appeal, during the four days; (2) after appeal, before the case was heard; (3) after the hearing, pending the decision, which might be adjourned for a special case or otherwise. In the first case there could hardly be an appeal. In the last, either a complete appeal having been domiciled in the High Court, the Judicature Rules might apply, or there might possibly be a remedy, if the Assize order could be antedated, in the names of the original parties, the adjournment being the act of the Court. The defendant asked me to state this case. I have added a third question, should the Court think proper to answer it, as, though it does not necessarily arise, it may enter into the ratio decidendi, and it is important for suitors to know their position. As there is a case of an appellant having died in a case listed at the present Assizes, I have extended the questions so as to cover such case as well.

The questions for the Court are:—

(1) Is there jurisdiction to adjourn when an appellant or respondent dies?

(2) Is there jurisdiction to hear and determine an appeal in a case so adjourned?

(3) If there was no such jurisdiction, is the order below in force and capable of execution?

Babington (with him P. Law Smith, K. C.), for the defendant:—

Since the Judicature Act, at all events, there is jurisdiction in the Judge of Assize to adjourn the appeal for the purpose of having a personal representative of the deceased raised, and to hear the appeal when this is done. The right of appeal given by 45 & 46 Vict. c. 29, sect. 4, is an appeal to the Judge of Assize as Judge of Assize, following in this respect the former statutory provisions as to such appeals from time to time in force, viz.:—2 Anne, c. 18 (Ir.), sect. 4; 36 Geo. 3, c. 25 (Ir.), sect. 29; 14 & 15 Vict. c. 57, sect. 127. By the Judicature Act (Ir.), 1877, the Judge of Assize constitutes a Court of the High Court of Justice: sect. 21 (8), sect.32. The Rules of the Supreme Court therefore apply, Order XVII., Rr.1-3, of which provide that a cause or matter does not become abated by the death of a party if the cause of action survive, and give power to add the personal representative of a deceased party.

But even apart from the Judicature Act, or the Rules under it, there is such jurisdiction. The effect of the death of the respondent is not to put an end to the proceedings, but merely to suspend them: Pemberton on Revivor, p. 15; Gregson v. Oswald (1). In Quigley v. Burmeister (2), the respondent had died after notice of appeal was served, and FitzGerald, B., adjourned the case to enable administration to be taken out to the respondent. It appears that this was done, and the appeal afterwards heard and determined by Dowse, B.: Burmeister v. Quigley (3). In Hemming v. Williams (4), where the respondent died before the hearing of the appeal, it was held that this did not deprive the appellant of his right of appeal, and that the Court would proceed by analogy to the 166th section of the Common Law Procedure Act, 1852. In Blakeway v. Patteshall (5), where the respondent died, the appeal was ordered to stand over to allow of the personal representative of the respondent being added, and such personal representative was afterwards added by order of the King's Bench Division. See also as to the power to make an order although the proceedings are suspended: O'Brien v. Bourke (6); Anon. (7); Nolan v. Fox (8); Gillen v. M'Veigh (9). By sect. 4 of 45 & 46 Vict. c. 29, express power to adjourn the appeal is given to the Judge of Assize.

Section 136 of 14 & 15 Vict. c. 57, providing that on the death of any of several plaintiffs or defendants after lodging an appeal, leaving another plaintiff or defendant surviving, the appeal shall not abate, may be relied on by the other side as showing, on the principle of expressio unius est exclusio alterius, that on the death of a sole plaintiff or defendant the matter does abate. But all

that is intended by that section is that in such case the appeal may proceed without the necessity of taking out representation to the deceased party.

M'Loone and Henry, K.C., for the plaintiff:—

The proceedings abated on the death of the respondent: Pemberton on Revivor, p. 2; M'Keown v. Henry (1); Eccles v. Tughan (2). The Legislature expressly specifies the cases in which there shall not be an abatement—viz., the bankruptcy of a plaintiff: 40 & 41 Vict. c. 56, sect. 64; or the death of any or several plaintiffs or defendants leaving another surviving: 14 & 15 Vict. c. 57, sect. 136. The case of the death of a sole plaintiff or defendant is not provided for, and, therefore, in such case, the proceedings abate. The effect of such abatement is, that the proceedings on the appeal come to an end, in which case the original decree or dismiss becomes final: 14 & 15 Vict. c. 57, sect. 133. The appeal referred to in that section is an effective appeal, and not merely lodgment of notice of appeal: M'Keown v. Henry (1).

The personal representatives of a deceased person clearly cannot originate...