Chapman v Speer

• Jurisdiction: Ireland
• Judgment Date: 24 November 1845
• Date: 24 November 1845
• Court: Exchequer of Pleas (Ireland)

Exch.of Pleas.

CHAPMAN

and

SPEER.

Crocket v. Montgomery Ver. & Scr. 473.

Lord Dacre v. Tebb 2 Black. 1151.

Vere v. PhillipsENR 1 Salk, 207.

Peddell v. KiddleENR 7 T. R. 660.

Barry v. White 2 Jones, 28.

Marriott v. Stanley 9 Dow. P. C. 59.

Booth v. Ibbotson 1 Y. & Jer. 354.

Bachelor v. Biggs 3 Wils. 319; S. C. 2 W. Black. 854.

Hughes v. Hughes 1 Tyr. & Gr. 4.

Good v. WatkinsENR 3 East, 495.

Reynolds v. EdwardsUNK 6 Term Rep. 11.

Sherwin v. SwindallENR 12 M. & W. 783.

Crocket v. Montgomery Ver. & Scr. 473.

Batchelor v. Biggs 3 Wils. 325.

278 CASES AT LAW. M. T. 1845. Exch, of Pleas. CHAPMAN v. SPEER. TRESPA ss.-The declaration contained twelve counts. The first count averred that the defendant, on, &c., with force and arms, at &c., drove a certain carriage, to wit, a stage-coach, on which the defendant was then and there driving along a certain highway with great force and violence upon and against a certain other stage--coach, on which the plaintiff was then and there riding, and carried along the said highway, and thereby the plaintiff was then and there thrown from and off the said stage-coach upon the ground, by means whereof one of the legs of the plaintiff was fractured and broken, and the plaintiff was thereby put to great inconvenience and expense, &c. This cause of action was varied in the remaining counts. Damages were laid at 1500. The defendant pleaded the general issue. The case, submitted to a jury on a former occasion, who, disagreeing, were discharged, was tried before the Lord Chief Baron at the SitÂÂtings after last Easter Term, when evidence being adduced on both sides, the jury found for the plaintiff sixpence damages and costs. The learned Judge, before whom the action was tried, refused to certify that the trespass was voluntary and malicious, being of opinion that the case was not within the statute of 2 G. 1, c. 11. The plaintiff's attorney taxed his costs before the proper officer to the amount of 199. 15s. Od., and entered up judgment in Trinity Term. Fitzgibbon, with whom was Robert Holmes, now moved that the taxation of the plaintiff's costs by William E. Hudson, Esq., one of the taxing officers, should be set aside, being contrary to law, and that the plaintiff should be restrained from issuing any execution against the defendant's person or goods upon the judgment entered by him, inasmuch as the plaintiff's action was brought in trespass, and the jury having found but sixpence damages, the plaintiff was not entitled to more than sixpence costs ; the Judge before whom the case was tried not having certified upon the record that the trespass complained of was wilful and malicious. The question is, whether or not this case comes within the meaning of the Irish statute of the 2 G. 1, c. 11,* which first gave the Judge CASES AT LAW. 279 trying a cause jurisdiction over the plaintiff's costs. The 14th section n T. 1845. enacts, " That in all actions of trespass, in case the jury shall find the Ellech.of Pleas. " damages to be under the value of forty shillings, the plaintiff shall not CHAPMAN " recover more costs of suit than the damages so found." The next SPEER. section on which this case is to be decided, the 15th, enacts, "ProÂÂvided always," &c., "that if the Judge, at the trial of any action of " assault and battery, or action of trespass, shall certify under his hand, "upon the back of the record, that the assault was sufficiently proved "by the plaintiff against the defendant ; or that the freehold and "title of the land mentioned in the plaintiff's declaration was chiefly "in question, or that the said trespass was voluntary and malicious, " the plaintiff in such case shall have and recover, though the jury find " damages to be under forty shillings, his full costs of suit," &c.- [PENNEFATHER, B. The uniform construction put upon that Act is, that it applies only to trespass of assault and battery, and quaire dausum fregiq-Crocket v. Montgomery (a) is the first reported case in Ireland in which a construction was put on that Act. It was an action in trespass for taking the plaintiff's turf. The plaintiff obtained a verdict, with ten shillings damages. He got his costs taxed, amounting to 36, and issued execution, which the defendant moved to set aside, on the ground that, without a certificate, the plaintiff was entitled to no more costs than damages, the latter being under forty shillings : and Yelverton, C. B., says :-" The Court is of opinion that "the plaintiff is entitled to full costs. Lord Dacre v. Tebb (b)-is-in "the very point. It is there laid down that where a trespass is done "to the personal property of the plaintiff, he is entitled to full costs, "though the damages are under forty shillings. Though I confess, if it "were res Integra, the words of the English statute, which are pursuedÂÂ" in the only statute that we have on the subject, are so general and " comprehensive, that I should think they extended to all actions of " trespass whatsoever." The Chief Baron there expressly says that he is following the English Act of Parliament. He assumes that the English Acts and the Irish Act were similar, when they really are (a) Ver. & Scr. 473. (6) 2 Black. 1151. for assault and battery, to be commenced in any of his Majesty's Four Courts in Dublin, and in all actions on the case for slanderous words, to be sued or prosecuted by any person or persons in any Court of Record whatsoever that hath power to hold plea of the same, the plaintiff in such action or actions, in case the jury shall find the damages to be under the value of forty shillings, shall not recover or obtain more costs of suit than the damage so found shall amount unto ; and if any more costs in any such action shall be awarded, the judgment shall be void, and the defendant is hereby acquitted of and from the same." 280 CASES AT LAW. M. T. 1845, not. The Court must have assumed that without looking into the Batch. of Pleas. Irish Act. CHAPMAN The English Act, the 22 & 23 Care 2, c. 9, s. 136, enacts, V. That in all actions of trespass, assault and battery, and other SPEER. "personal actions, wherein the Judge at the trial of the cause shall " not find and certify under his hand, upon the back of the record; "that an assault and battery was sufficiently proved by the plaintiff "against the defendant, or that the freehold or title of the land menÂÂ" tioned in the plaintiff's declaration was chiefly in question, the "plaintiff in such action, in case the jury shall find the damages to be "under the value of forty shillings, shall not recover or obtain more " costs of suit than the damages so found shall amount unto : and if any " more costs in any such action shall be awarded, the judgment shall be "void, and the defendant is hereby acquitted of and from the same, "and may have his action against the plaintiff for such vexatious " suit, and recover his damages and costs of such his suit in any of "the said Courts of Record." The latter paragraph contains a remedy not given by the Irish Act. The proviso in the Irish Act goes on to say the Judge may give one of three certificates ; either that the assault was sufficiently proved by the plaintiff against the defendant, or that the freehold and title of the land mentioned in the plaintiff's declaration was chiefly in question, or that the trespass was voluntary and malicious. The English Acts give only the first two mentioned in the Irish Act.-[PENNEFATHER, B. There are two Acts in England, one only in Ireland consolidating both.]-In Vere v. Phillips (a), a case in trespass for chasing, driving and wounding sheep, the Court held the plaintiff should have his full costs, and that...