Kate O'Rorke v Eliza M'Donnell

• Jurisdiction: Ireland
• Judgment Date: 17 January 1862
• Date: 17 January 1862
• Court: Queen's Bench Division (Ireland)

Queen's Bench

KATE O'RORKE

and

ELIZA M'DONNELL.

Evans v. Great Southern and Western Railway Company 5 Ir. Jur. 329.

Hughes v. GuinnessIR 4 Ir. Com. Law Rep. 324.

Crosse v. SeamanENRENR 10 C. B. 884; S. C., 11 C. B. 524.

Cooch v. Maltby 23 Law Jour., N. S., Q. B., 305.

James v. Vane 29 Law Jour., N. S. Q. B., 169.

Dixon v. WalkerENR 7 Mees. & W. 214.

Dixon v. Walker; Lafone v. SmithENR 4 H. & N. 158.

Cooch v. Maltby 23 L. J., N. S., Q. B., 305.

Dixon v. ClarkeENR 5 C. B. 365.

Hesketh v. Fawcett 11 Mee. & W. 356.

Crosse v. SeamanENR 10 C. B. 884.

Woodhams v. NewmanENR 7 C. B. 654.

Giles v. Hartis 1 Lord Ray. 254.

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

Dixon v. WalkerENR 7 M. & W. 214.

James v. Vune 29 Law Jour., N. S., Q. B., 169.

Dixon v. ClarkeENR 5 C. B. 365.

Searles v. Sadgrave 5 Ell. & Bl. 639.

Dixon v. WalkerENRUNK 7 M. & W. 214; S. C., 4 Jur. 1188.

Evans v. The Great Southern and Western Railway Company 5 Ir. Jur. 329.

James v. Vane 29 Law Jour., N. S., Q. B. 169; S. C., 6 Jur., N. S., 731.

Crosse v. Seaman 1 Co. B. 524.

Giles v. Hartis 1 Lord Ray. 254.

viii Appendix. English statute of the word " pleadings " in the sections referred to. In England, there are no " pleadings " in actions of ejectment. The Common Law Procedure Act left the forms of proceedings in actions of ejectment unchanged. My attention was called to that decision when I had the charge of the Common Law Procedure Amendment Act (Ireland) 1856 in the House of Commons; and the answer given was, that that decision did not apply to this country, because our system was different from that in England. The Common Law Procedure Amendment Act (Ireland) 1853 has created " pleadings " in actions of ejectment in Ireland ; and, by its 227th section, all the previous provisions with respect to personal actions were made applicable to actions of ejectment, unless where there was some provision to the contrary. Therefore, there never has been any substantial doubt on the subject ; and I have no hesitation in agreeing in the judgment of the Court, that this defence is on every ground bad. KATE O'RORKE v. ELIZA M'DONNELL. Jan. 13, 17. In an action of contract, both parties to which resided within the same civil-bill jurisdiction, and which was brought to reÂÂcover five and one-half years' arrears of salaÂÂry, the plaintiff obtained 8 by verdict, besides 45 which the deÂÂfendant lodged in Court, unÂÂder a plea of tender, before action com menced, but did not apply to the Judge who tried the case for a cerÂÂtificate that it was a case fit THE plaintiff brought this action to recover the sum of 110 sterling, money payable by the defendant to the plaintiff, for work done, services performed and materials provided by the plaintiff for the defendant, and at her request; and for wages due by the defendant to the plaintiff; and for money found to be due from the defendant to the plaintiff, on an account stated between them ; and for a balance of salary due by the defendant to the plaintiff: Indorsement of particulars :- " To salary and wages, for work done and services performed, from 1st of November 1855 to 1st of May 1861, at 20 per year 110 0 0 " The defendant pleaded that the work done, and services performed and materials provided by the plaintiff for the defendant, and the wages and salary due by the defendant to the plaintiff, were of the value of 5,5, and no more ; and that the only money found to be due from the defendant to the plaintiff, on accounts stated between them, was said sum of 55, and no more. And, as to the sum of 10, parcel of the said sum of 55, defendant says that the plaintiff, to be tried in a Superior Court. The Taxing-master, accordingly, refused to tax the plaintiff's costs upon the higher scale. Upon appeal, that ruling was reversed by the Court (FITZGERALD, J., dissenting). Appendix. ix before and at the commencement of the suit, was, and still is, H. T. 1862. indebted to the defendant in an amount equal to said portion of Queen's Bench. plaintiff's claim, for goods sold and delivered by the defendant O'ILORICE to the plaintiff ; and for money lent by the defendant to the t . plaintiff; and for money received by the plaintiff for the defend- WDONNELL ant's use ; and for money found to be due from the plaintiff to the defendant, on accounts stated between them, which amount the defendant is willing to set off against so much of the said sum of 55. And, as to the sum of 45, being the balance of said sum of 5, defendant says that, before action brought, she tendered and offered to pay the plaintiff said sum of 45, which the plaintiff refused to accept ; and the defendant says she has always been ready and willing, and still is ready and willing, to pay the said sum of 45 to the plaintiff; and that she brings here into Court the said sum of 45, which is sufficient to satisfy the said balance of plaintiff's demand. Particulars of set-off:- "Shop goods and money of defendant, taken by the pkintift for her own use, during the years 1856, 1857, 1858, 1859, as admitted by her, in the month of December 1860 ... 49 0 0 Like, in the year 1861... ... ... 1 0 0 10 0 0" To the plea of set-off the plaintiff filed a replication, and said that no goods were sold and delivered by the defendant to the plaintiff; as therein alleged ; and that no money was found to have been lent by the defendant to the plaintiff, as therein alleged; and that no money was received by the plaintiff for the defendant's use, as therein alleged ; and that no accounts were stated between plaintiff and defendant, as therein alleged. The issues were-first ; whether the defendant is indebted to the plaintiff on foot of the claims in the several paragraphs of the sumÂÂmons and plaint contained, in any, and, if any, in 'What amount, over and above the sum of 45, lodged in Court by the defendant, in satisfaction of this action ? Second ; whether the plaintiff's replication is true in substance and fact ? On the first issue, the jury found a verdict for 8 for the plain4 tiff, but found for the defendant on the second issue. The plaintiff did not apply to the learned Judge-who tried the case for a certificate that the case was a fit one to be tried in a Superior Court, although both parties resided within the same civil-bill jurisdiction. The Taxing-Master refused to tax the plaintiff's x iippendix. costs on the higher scale; and this motion was instituted by way of an appeal from that ruing. T. Harris, for the motion. The plaintiff has recovered more than 20; for the sum lodged in Court must be included in the verdict : Evans v. Great Southern and Western Railway Company (a). That case, however, was decided independently of the plea of tender ; and Hughes v. GuinÂÂness (b) shows that the plaintiff is entitled to get costs. That decision is as applicable to a case in which a tender has been pleaded as to one of mere lodgment in Court. Counsel also cited Crosse v. Seaman (c); Cooch v. Maltby (d); James v. Vane (e); Dixon v. Walker (f). The latter case is not hostile to the others, because the plaintiff there had entered a nolle prosegui, as to the amount tendered. R. Ferguson, contra. The effect of a tender, and a lodgment in pursuance of it, differs essentially from the effect of a lodgment merely. In actions of conÂÂtract, a party who can safely accept the portion tendered, without giving a discharge for the whole debt, must do SQ, and sue in the Inferior Court for the balance, if both parties reside within the civil-bill jurisdiction. If the plaintiff does not do so, but goes on for the balance in the Superior Court, and there recovers less than 20 beyond the sum tendered, the Common Law Procedure Act (IreÂÂland) 1856, s. 97, provides that he shall not get any costs, unless the Judge gives the requisite certificate. Evans v. Great Southern and Western Railway Company decided that the plaintiff might have taken out the money lodged, without prejudicing his right to sue for the balance in the Civil-bill Court. Hughes v. Guinness was determined on a wholly different ground, namely, that the money lodged had been recovered by the pressure of the action. A plea of tender admits that the defendant owes the plaintiff the sum tendered, and that he is ready to pay it, without conÂÂdition, qualification or receipt. From that moment, the sum tendered is,. as it were, struck out of the plaint altogether. No controversy regarding it remains ; and the plaintiff is not entitled to harass the defendant, by suing for the balance in the more expensive (a) 5 Ir. Jur. 329. (b) 4 Ir. Com. Law Rep. 314. (c) 10 C. B. 884; S. C., 11 C. B. 524. (d) 23 Law Jour., N. S., Q. B., 305. (e) 29 Law Jour., N. S., Q. B., 169. (j) 7 Mees. & W. 214. Appendix. xi jurisdiction : Dixon v. Walker ; Lafone v. Smith (a); James v. H. T. 1862. Vane. The tender is always made on account of the demand, Queen's Bench leaving the plaintiff free to sue for the balance, if he thinks that &RORKE the sum tendered was not sufficient. The tender reduced the v. . entire demand by the sum tendered ; and, this being a severable M-DOINNELL demand, the plaintiff should have sued in the Court below for the balance. T. Harris was heard in reply. Cur. ad vult: FITZGERALD, J. In this case, in which Kate O'Rorke is plaintiff, and Eliza Jan. 17. M'Donnell is defendant, Mr. Harris, on behalf of the plaintiff, moved the Court, by way of appeal from the ruling of the Taxing-officer, who, on the ground that the plaintiff had recovered a sum of less than 20, held that she was not entitled to get full costs, and had, accordingly, declined to tax her costs on the higher scale. The question arose on the 97th section of the Common Law Procedure Amendment Act (Ireland) 1856, by which it is provided that if, in any action of contract, with certain exceptions, where the parties reside within the jurisdiction of the Civil-bill Court of the county in which the cause of action has arisen, the plaintiff shall...