Cooke v Cooke

• Jurisdiction: Ireland
• Judgment Date: 01 January 1919
• Date: 01 January 1919
• Docket Number: (1917. No. 755.)
• Court: Court of Appeal (Ireland)

Cooke v. Cooke

CATHERINE COOKE

and

GEORGE COOKE and JOSEPH COOKE (1)

(1917. No. 755.)

Appeal.

Practice - Committal - Attachment - Requisites of affidavit for.

An application for the issue of a writ of attachment is technically different from an application for a committal order, and the provisions of Order 52, rule 4, which require that every notice of motion for an attachment must state in general terms the grounds of the application, do not apply to a motion to commit.

The distinction between attachment and committal considered.

Taylor, Plinston Brothers, & Co., Ltd. v. Plinston ([1911] 2 Ch. 605)followed.

Thomas Cooke, who owned a farm in county Louth comprising 13 acres, died on the 10th April, 1903, having by his will devised and bequeathed all his real and personal estate to his wife, the plaintiff in this action. The widow continued to reside on the farm with her children, including the defendants George Cooke and Joseph Cooke, and they together carried on a considerable business in cattle-dealing and farming generally, and took additional lands for the agistment of cattle, the contracts being in many cases in the names of George, or of others of the sons. Subsequently disputes arose between the members of the family, and in 1915 the plaintiff brought ejectment proceedings against George Cooke, and he ceased to reside on the farm. The present action was, on the 25th August, 1917, instituted by the plaintiff against her two sons, seeking (inter alia) a declaration that the lands were her property, and that during the years 1915-16-17 the defendants were acting as her agents in the buying and selling of cattle, &c.; an inquiry as to damages, and an injunction restraining the defendants from interfering with the lands or stock. No defence was filed by Joseph Cooke, but George Cooke by his defence claimed the benefit of all grazing and agistment contracts entered into by him for himself, and he counter-claimed for property alleged to have been wrongfully retained by the plaintiff.

The action came on for trial before Ross J. on the 18th June, 1918, when it stood adjourned, pending settlement, to the 20th June, on which day the defendant George Cooke having refused to sign the proposed consent settling the action, Ross J. made an order that the action should be listed for trial on the 24th June, and "that the defendant George Cooke and his servants and agents be and they are hereby restrained until further order of this Court from interfering with the farm of Upper Merches, Dundalk, in the county of Louth, in the statement of claim mentioned, or the stock, cattle, or other chattels or property thereon." On the 24th June, 1918, during the hearing of the action, the following notice was served upon the defendant George Cooke:—"Take notice that on this day, the 24th June, 1918, at the rising of the Court, an application on behalf of the plaintiff will be made to the Court for an order that the defendant George Cooke be committed to prison for breach of the injunction granted against him on the 20th June, 1918, and which was duly served upon said defendant George Cooke, which application will be grounded upon the said injunction order, the affidavit of service thereof, the affidavit of Joseph Cooke filed the 20th June, 1918, the oral evidence of the plaintiff and Joseph Cooke to be given on said application, the several documents already filed, the nature of the case, and the reasons to be offered. Dated 24th June, 1918."

On the hearing of the said application on the 24th June oral evidence was given by the plaintiff that a quantity of cattle had been removed from her farm by the defendant George Cooke; this, however, was denied by the latter, and in the result Ross J. directed a writ of attachment to issue against George Cooke with a stay upon the order to enable him to return the cattle. The cattle were returned to the plaintiff's farm on the 25th June. The hearing of the action was continued on the 27th June, on which day Ross J. made a decree which in substance declared the plaintiff entitled to the farm and stock in question, and restrained the defendant George Cooke from trespassing upon the plaintiff's lands, and from removing stock, crops, or chattels therefrom, and the plaintiff was thereby awarded £700 damages against George Cooke by reason of his wrongful acts in trespassing upon the plaintiff's lands, and removing and converting to his own use her cattle, stock, crops, and other goods and chattels.

On the 25th July, 1918, a notice of motion was served personally upon the defendant George Cooke, giving notice that on the 30th July, 1918, an application would be made to Ross J., "for an order that the stay upon the order of attachment of the defendant George Cooke, dated 24th June, 1918, be removed, and the writ of attachment against the said George Cooke do forthwith issue." Copies of affidavits were served therewith alleging that George Cooke had removed more cattle from the lands of the plaintiff. The notice and affidavits were not served on Mr. Hamill, the solicitor acting on behalf of George Cooke, until the 27th July. An affidavit subsequently filed by Mr. Hamill, and not controverted, averred as follows:—"The time given me to prepare for the application of the 30th July was wholly inadequate. I prepared the affidavit as quickly as I possibly could, and went up specially to Dublin on the hearing of the application. Both the senior and junior counsel employed in the case were out of Dublin, and I had to give the brief to a counsel who knew nothing about the case. As soon as I handed out the brief, my counsel went down to Court, and found that the case was at hearing, and that some of the affidavits had been read. My counsel then informed the Judge that he had just been instructed that moment to appear for George Cooke, that he had not been in the case before, that the counsel in the case were both out of town, and that he wished to get an adjournment for a day so that he might have an opportunity of reading his brief and preparing the case. The Judge refused this application. My counsel then asked for an adjournment till a later hour in the day so that he might have an opportunity of reading his brief. The Judge refused this application also." It is sufficient for the purposes of this report to state that the affidavits filed by the plaintiff in support of the application alleged that George Cooke had again entered upon the plaintiff's lands and removed cattle therefrom, and that George Cooke denied these charges in toto.

By his order of the 30th July, 1918, Ross J. directed "that a writ of attachment do issue against the said defendant, George Cooke, for his contempt in disobeying said order, dated the 20th day of June, 1918, and said judgment, dated the 27th day of June, 1918, by trespassing upon the plaintiff's lands at Upper Merches, in said order and judgment mentioned, and removing cattle and other stock, the property of the plaintiff, from said lands; and this Court doth order that the said defendant be committed to prison under said writ of attachment for a period of six months from the date of his arrest, unless his release shall be previously ordered," &c. In pursuance of this order, George Cooke was arrested on the 23rd August, 1918, and conveyed to Mountjoy, Prison, where he remained confined. On the 20th August, 1918, George Cooke lodged an appeal against the order of the 30th July, 1918; and on the 5th September, 1918, he applied by motion on notice to Moore J., sitting as Vacation Judge, to discharge the said order of the 30th July, and to set aside the writ of attachment issued in pursuance thereof on the ground of irregularity. Moore J., having refused this application on the ground that an appeal against the order of the 30th July was pending, George Cooke, on the 23rd September, 1916, lodged a further appeal against the order of Moore J. These appeals now come on for hearing.

Sir James Campbell C.: —

A man named Thomas Cooke was the owner of a small farm of 14 acres statute, situate near Dundalk, Co. Louth. He died in April, 1903, and under the terms of his will his widow, Catherine Cooke, was left his entire property. There were a number of children by the marriage, of whom the following are referred to in these proceedings:—George, Joseph, John, and Catherine; that is to say, three sons and one daughter. The family continued to live together on the farm, and, under the management of the widow, a thrifty and industrious woman, who apparently was faithful to her trust. With the assistance of her children, she carried on a considerable business in cattle-dealing

and farming operations generally. Most unfortunately friction arose, and in the disputes which followed Joseph is alleged to have sided with his mother, while the other three children appear to have joined the opposite camp. Finally, in 1915, the widow took ejectment proceedings against her son George, as the result of which he ceased to reside upon the farm. It had been their habit to take various plots of land by agistment for cattle, the contracts being, in many cases, made in the name of George or others of the sons; and even after the ejectment proceedings this practice was continued, the sons taking an active part in the cattle business, attending fairs and markets, and selling cattle. It is notorious that in many such cases the adult sons deal, or believe themselves to be dealing, in this way for their own benefit, to some extent at least, and the business is carried on under a rough method of co-partnership; but Mr. Justice Ross has decided that in this particular case they were all acting as the agents of their mother, and that she alone was entitled to the stock and profits. As his decision upon this point is the subject-matter of an appeal still pending in this Court, I shall not refer to it further, but shall, for the purpose of my judgment, assume it to be correct.

The friction...