Dollard Ltd v Brennan
| Jurisdiction | Ireland |
| Court | Supreme Court (Irish Free State) |
| Judgment Date | 08 November 1927 |
| Date | 08 November 1927 |
Supreme Court.
Practice - Trial - Right to jury - Restrictions imposed by Courts of Justice Act, 1924 (No. 10 of 1924), sect. 94 - By what Judge the right to have a jury is to be determined - Liquidated sum claimed - Discretion of Judge - Jury where necessary or desirable for proper trial - Appeal.
Sect. 94 of the Courts of Justice Act, 1924 (No. 10 of 1924), enacts:—"Nothing contained in this Act shall take away or prejudice the right of any party to any action in the High Court or the Circuit Court (not being an action for a liquidated sum, or an action for the enforcement, or for damages for the breach of a contract) to have questions of fact tried by a jury in such cases as he might heretofore of right have so required in the Supreme Court of Judicature in Ireland, and with like directions as to law and evidence, but no party to an action in the High Court or the Circuit Court for a liquidated sum, or an action for the enforcement or for damages for the breach of a contract or in an action for the recovery of land shall be entitled, to a jury unless the Judge shall consider a jury to be necessary or desirable for the proper trial of the action, and shall of his own motion or on the application of any party so order . . ."
Plaintiffs' specially endorsed writ claimed £353, money paid by them in respect of paper ordered by the defendant B. (who was their manager), from an English firm, and delivered by that firm to the mills of the other defendants, the K. Paper Mills, Ltd., a company owned by B. The defence pleaded by both defendants was that the money was not paid on their behalf and that they did not receive or use the goods. In the plaintiffs' affidavit, used on a motion for leave to mark final judgment, which application had been refused, it was suggested that the defendant, B., had taken advantage of his position as their manager to order paper in their name, without authority, and to use it for his own purposes, and it was alleged that he made a false representation to the English firm, namely, that plaintiffs had certain machinery installed in the premises of the defendants, the K. Paper Mills, Ltd. As the action was for a liquidated sum, by sect. 94 of the Courts of Justice Act, no party to the action was entitled to a jury unless so ordered. The defendant, B., alleging that there was a grave charge of fraud or dishonesty against him, applied by motion for an order that the action be tried by a Judge and jury.
Held by Hanna J. that there was nothing in the facts disclosed to make it desirable to have a jury.
Held by the Supreme Court that the application was premature, as the question whether a jury was necessary or desirable for the proper trial of the action as it stood, was a question for the discretion of the trial Judge.
Per FitzGibbon J.—"The Judge" referred to in sect. 94 of the Courts of Justice Act, 1924, is the Judge before whom the case in question is proceeding at the time when it first becomes apparent that a jury is necessary or desirable for the proper trial of the action. In the vast majority of cases this must be the Judge at the actual trial of the action.
Motion on behalf of the defendant, Bartholomew J. Brennan, for an order that the action be tried before a Judge and common jury of the City of Dublin, on the ground that the issues in the action made it necessary and desirable that it be tried by a jury.
The plaintiffs, the Dollard Printing House, Dublin, Ltd., issued a specially endorsed writ claiming the sum of £353, for money paid by them for the defendants and at the defendant's request, being the price of goods ordered by the defendants in the name of the plaintiffs from Messrs. Brindle & Son, Ltd., Preston, and which goods were paid for by the plaintiffs but were delivered by the said Messrs. Brindle & Son, Ltd., to and used by the defendants. The goods were ordered by the defendant B. J. Brennan (who was at the time the plaintiffs' manager), from Messrs. Brindle & Son, Ltd., of Preston, and delivered by them to the mills of the other defendants, the Killeen Paper Mills, Ltd., a company of which Brennan was a director. The plaintiffs moved for final judgment, and for the purpose of the motion an affidavit was made by George P. Orpen, the plaintiffs' secretary, in which he verified the cause of action and stated that the defendants had no defence. An affidavit in reply to this was made by the defendant, Brennan, on behalf of himself and the other defendants, in which he denied that the money claimed was due to the plaintiffs, and stated (inter alia) that among the businesses carried on by plaintiffs was that of supplying paper bags to traders as wrappers, and that the Killeen Paper Mills, Ltd., were manufacturers of such paper bags, but were not manufacturers of the particular paper from which they were made; that is to say, the Killeen Paper Mills, on receiving reams of the paper, manufactured the same into paper bags, and received payment at a recognized rate for so doing. He stated that he was manager for the plaintiffs from the year 1920 until 1st September, 1926, and was a director of the defendant company since it was started. That about 1st June, 1926, Mr. J. P. Grace, who was paper warehouseman and buyer for the plaintiffs, gave an order to the defendant company, through him (Brennan) to make up into bags a large quantity of paper for the plaintiffs. That the plaintiffs ordered the paper from Messrs. Brindle & Son, Ltd., and directed that it be delivered at the Killeen Mills, and that the paper was ordered by and belonged to the plaintiffs, and that he was informed by Messrs. Brindle & Son, and believed that the invoices for the paper were sent to the plaintiffs. He further stated that the Killeen Mills made up certain quantities of the paper and delivered them to the plaintiffs, and that certain quantities had been made up by them and were ready for delivery, but that the plaintiffs would not accept delivery of same, and that the balance of the paper remained with them unmanufactured. And he claimed that plaintiffs owed the Killeen Mills charges for the said work. A replying affidavit was made by Mr. Joseph Dollard, managing director of the plaintiffs' firm, of which the following are the material paragraphs:—
"2. The said B. J. Brennan was, until the 1st day of September, 1926, manager of the plaintiff firm, and was also, as I am informed and believe, a director and practically full proprietor of the defendant company. The records of registered companies show that 100 preference shares and 1,400 ordinary shares were allotted by...
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