Edward Walsh v James and William Walsh

• Jurisdiction: Ireland
• Judgment Date: 04 November 1866
• Date: 04 November 1866
• Court: Exchequer (Ireland)

Exchequer.

EDWARD WALSH

and

JAMES and WILLIAM WALSH.

Hyghes v. GuinnessIR 4 Ir. Com. Law Rep. 314: S. C., 7 Ir. Jur. 298.

Blackmore v. HiggsENR 15 C. B., N. S. 790, 793.

Devine v. The London and North-Western Railway Company 10 Ir. Jur., N. S. 26; S. C., supra, 174.

James v. Vade 29 Law Jour., Q. B. 129.

Goodee v. GoldsmithENR 2 M. & W. 202.

Harrison v. WattENR 16 M. & W. 316.

O'Rorke v. M'Donnell 13 Ir. Com. Law. Rep., App. 8.

Farmer v. Fottrell 4 Ir. Jur. N. S. 37.

Parr v. Lillicrap 1 Hur. & Colt. 615.

Boulding v. TylerENR 3 Best & Smith, 472.

Hughes v. GuinnessIR 4 Ir. Com. Law Rep. 314.

Fewster v. BoggettENR 9 M. & W. 20.

Crosse v. LeamanENR 11 C. B. 524.

Hughes v. GuinnessIR 4 Ir. Com. Law Rep. 317.

Blackmore v. HiggsENR 15 C. B., N. S. 793.

Devine v. The London and North Western Railway Company 10 Ir. Jur., N. S. 26; S. C., supra, 174.

COMMON LAW REPORTS. 195 under if he had rested only on the first two counts. The parties went to trial upon the matter ex contractu ; they never went to trial upon the other part. But I do not put it upon what de facto occurred ; but upon the principle showing the mischief that would follow if the party was allowed to take himself out of the case, which the Legislature has provided for him, by suing in the Superior Courts. Therefore, I am of opinion that the Taxing-officer was perfectly right in giving only half costs to the plaintiff. M. V. 1864. Queen's Bench DEVINE v. LONDON AND N. W. RAILWAY. EDWARD WALSH v. JAMES and WILLIAM WALSH.* (Exchequer.) M. T. 1866. Nov. 4. Tins was a motion by the defendant James Walsh to review a deci- - Ctianon osts.foassAca sion of the Taxing-master. The summons and plaint in the action and battery, and obstruc contained two counts : the first for assault and battery ; the second for tion of right of way, against obstructing a right of way. To these the defendant James Walsh W. and J.; W. allowed j udg pleaded, and traversed the first count ; and, as to the second count, ment to go by default. J. paid 5 into Court ; alleging that that sum was sufficient to satisfy the paid 5 into Court on the plaintiff's claim in the second count. William Walsh filed no defence ; second count, and the plaintiff drew out the money paid in on the second count, in and traversed first; and issue full satisfaction of the cause of action. An issue was sent to the was taken on the traverse ; jury on the first count. The jury found for the plaintiff, assessing the jury found a verdict for the damages at 1 over and above the sum paid into Court. No 1. The Tax ing-officer al certificate was obtained from the Judge at the trial. The Taxing- lowed plain f - tiff 's ull costs. master allowed the plaintiff his full costs. The Judg- gave no certifiÂÂcate. Held, that the plaintiff was not entiÂÂtled to costs. 196 COMMON LAW REPORTS. M. T. 1866. little. Besides sections 126 and 243 of the Common Law Pro Exchequer. cedure Act (16 & 17 Vie., c. 113), we must look at sections 75 WALSH and 78. The money being paid into Court on the second count, v. WALSH. the plaintiff must adopt either the course permitted him under section 76, and draw the money out in full satisfaction of his cause of action, or that under section 78 ; if he adopts the latter he must take an issue as to the sufficiency of the sum paid into • Court. He has adopted that under section 76; and that is equiÂÂvalent to having entered a nolle prosequi on the second count. That sum of 5 would disappear from the judgment ; and the plaintiff would be entitled to have an order for the taxation of his costs forthwith. Could he have that before the action was otherwise disposed of if his right of action still existed ? The rule in England expressly postpones the right of the party to do this, but no such rule exists here.- [FITZGERALD, B. Would not the plaintiff be obliged to introduce all this transaction upon the Nisi Prins record ?]-These two counts referred to two totally different causes of action ; and one of them was gone...