Gaveau et Cie v McCullough

CourtSupreme Court (Irish Free State)
Judgment Date01 January 1927
Date01 January 1927
Docket Number(1926. No. 2862—26.)
Gaveau et Cie v. M'Cullough
D. M'CULLOUGH, Defendant (1)
(1926. No. 2862—26.)

Supreme Court.

Practice - Transfer of action - Action commenced in High Court - Transfer to Circuit Court - Order for security of costs obtained by defendant.

Plaintiffs issued a writ on 12th March, 1926, claiming £288 19s. 7d. for goods sold and delivered, or, alternatively, for money had and received, and for interest. Defendant entered an appearance "without prejudice to a motion to transfer the action to the Circuit Court." On 15th April defendant obtained an order for security for costs, and the amount of such security was subsequently fixed, and on 18th May the amount was lodged in Court. On 14th June plaintiffs delivered their statement of claim. On 2nd July defendant applied to have the action transferred to the Circuit Court.

Held, reversing Sullivan P., that the action ought not to be transferred, as the defendant had obtained the order for security for costs on the basis of the action proceeding in, and as one fit to be tried in, the High Court without giving that Court any intimation that he proposed to move to transfer the action to the Circuit Court, and therefore he ought not to be heard to move for the wholly inconsistent order of transfer.

Appeal from an order of Sullivan P., dated the 2nd July, 1926, refusing the plaintiffs' application to amend their statement of claim by claiming further interest up to the date of payment or judgment, and granting the defendant's application to transfer the action for trial before the Circuit Court of the Dublin Circuit.

The plaintiffs, pianoforte manufacturers, carrying on business at 45 & 47 Rue La Boetie, Paris, issued a writ claiming £288 19s. 7d., whereof £260 was for the price of goods sold and delivered by the plaintiffs to the defendant, or, in the alternative, for money had and received by the defendant to the use of the plaintiffs, and whereof £6 12s. 7d. was for money had and for money received by the defendant to the use of the plaintiffs, and the balance thereof, £22 7s., was for interest. The defendant, a musical instrument manufacturer, carried on business at 56 Dawson Street, Dublin. The writ was issued on the 12th March, 1926, and served on the 16th March. An appearance was entered on the 26th March, "without prejudice to a motion to transfer to the Circuit Court of Dublin." On the 30th March the defendant served notice requiring the plaintiffs to give security for costs, and on the 31st March he served notice of motion for an order for such security. In an affidavit in support of the application, he stated that some of

the goods sued for consisted of two "Upright" pianos and one"Grand" piano, of the plaintiffs' manufacture, which were originally in the stock room of the Gresham Hotel, Dublin. In January or February, 1922, the plaintiffs' agent, a Mr. Gerald Murphy, of Dublin, requested him to purchase these pianos, but as he (the defendant) considered the prices asked were unreasonably high, he declined to have anything to do with them, except on a "sale or return" basis. He...

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