Craig v Boyd

• Jurisdiction: Ireland
• Judgment Date: 10 December 1900
• Date: 10 December 1900
• Docket Number: (1898. No. 75.)
• Court: Queen's Bench Division (Ireland)

Craig

and

Boyd (2).

Q. B. Div.

Probate.

(1898. No. 75.)

CASES

DETERMINED BY

THE QUEEN'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.

1901.

Practice — Taxation of costs — Probate — Costs “in the action” — Counterclaim — Caveat — Citations — Subpœna, insertion of names in, after sealing of — Witnesses, expenses of — Attendance of country solicitor in Dublin.

An action having been brought by an executor propounding a will of 1897, the defendant put in a defence, which was substantially a counterclaim, propounding a will of 1894. The plaintiff pleaded, by way of reply, the revocation of the will of 1894 by the will of 1897 and two intermediate wills. At the trial the will of 1897 was established, and an order made giving plaintiff and defendant their costs properly incurred in the action out of the assets.

On a motion to review the taxation of the defendant's costs, it was objected that the taxing-master should not have allowed the defendant the costs of the counterclaim, on the ground that they were not costs “in the action.” No such objection was taken before the taxing-master:—

Held (1), that this objection could not now be relied on; and (2) that, even if it could, the costs of the counterclaim were costs “in the action.”

The costs of a caveat and appearance to the warning, though incurred before writ issued, are “costs in the probate action.”

The costs of citations to legatees may be allowed in a proper case, although the executors of the will under which the legatees claim are before the Court.

Additional names should not be inserted, as of course, in a writ of subpoena once it has been issued and sealed. If it is desired to insert additional names, a corrected præcipe should be lodged, and the writ resealed.

The mere fact that a witness has not been subpoenaed is no ground for disallowing his expenses or the costs of attending on him to take his evidence.

If the country solicitor of a party, or his assistant, is a necessary witness at the trial in Dublin, the mere fact that the solicitor has a registered address in Dublin is not a sufficient ground for disallowing their travelling expenses and the solicitor's fee for attendance as a witness.

A witness coming to Dublin by rail should only be allowed the actual fare paid, although it is less than the ordinary fare, as where he travels by an excursion train.

Motion to review Taxation.

This was an application on behalf of the plaintiff for an order that the Taxing Master review his taxation of the defendant's costs of the action allowed him by the order or judgment dated April 20, 1899, in respect of certain items in the defendant's bill of costs.

The facts of the case and the items objected to, and the arguments of counsel, are sufficiently set out in the judgment.

Andrew Todd, for the plaintiff.

Cooke, Q.C., for the defendant.

Andrews, J.:—

This was a motion on behalf of the plaintiff for a review of the taxation of the defendant's bill of costs. The plaintiff was the executor of Wm. Craig, deceased, and by his statement of claim he propounded a will of the testator dated the 30th September, 1897. The statement of defence, though in form only a defence, was, as to portion of it substantially a counterclaim, because the defendant by way of special defence propounded an earlier will of the 6th Feb., 1894. This was in accordance with the practice of the Court that where a defendant relies on an earlier will he must propound it. The plaintiff in his reply alleged the revocation of the will of 1894 by each of three wills, not only by the will of the 30th September, 1897, but by two other wills made earlier in that year. Inasmuch as none of these wills could effect a revocation unless properly executed, the pleadings were framed to raise the question of the validity of all four wills.

The action came on for trial before the late Mr. Justice O'Brien on the 19th and 20th April, 1899, and resulted in a judgment in favour of the will of the 30th September, 1897. The parties thereupon consented that all the issues respecting the other wills should be withdrawn. The Judge then ordered that “both parties” (i.e. plaintiff and defendant) “do have their costs necessarily and properly incurred in this action, when taxed and ascertained, out of the assets.”

The taxation of costs did not come before the Taxing Master until June, 1900. If the question now raised before me was...