Kenealy v Keane
Jurisdiction | Ireland |
Court | Queen's Bench Division (Ireland) |
Judgment Date | 24 February 1900 |
Docket Number | (1900. No. 1471.) |
Date | 24 February 1900 |
Q. B. Div.
(1900. No. 1471.)
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.
Municipal Corporations (Ireland) Act, 1840 (3 & 4 Vict. c. 108), s. 89 — Local Government (Ireland) Act, 1898 — Action for penalties for acting as a councillor while disqualified — Security for costs.
In an action, brought under the Local Government (Ireland) Act, 1898, and the Municipal Corporations (Ireland) Act, 1840, sect. 89 (thereunder adapted), to recover penalties for acting as a councillor while disqualified, it is within the discretion of the Court to decline to order security for the defendant's costs where the only ground suggested is the plaintiff's poverty.
Summons, on behalf of the defendant, that further proceedings in the action should be stayed unless security for costs were given. The action was brought to recover £200, being for four penalties of £50, against the defendant, for having acted as a member of the Kilkenny Corporation while disqualified from so acting. The plaintiff alleged that the defendant by himself or his partner was concerned in a bargain or contract with the Corporation.
The present summons was issued on the 17th for the 21st February, 1900. The defendant, in the affidavit on which the application was grounded, stated that his solicitor on his instructions had on the 3rd February, 1900, accepted service of the writ of summons in this action, and that an appearance had been therein entered for him on the 13th February, 1900:—that he was joint proprietor of the Kilkenny People newspaper, with Mr. P. J.
O'Keeffe, who had been served with a similar writ of summons at the suit of same plaintiff; that the plaintiff was the editor of the Kilkenny Journal newspaper, and that, except his salary as such editor, he had not, in the defendant's belief, any property whatever; that the plaintiff had also been town-clerk of Kilkenny, but had been recently dismissed from that position. The defendant further deposed that he had a good defence to the action, and stated that, since the Kilkenny People newspaper was established, about eight years ago, the plaintiff and his newspaper had been bitterly hostile to it, and that the present action had been brought “through a spirit of rivalry and personal malice, and for the purpose of ruining” the defendant and his newspaper. The dedefendant submitted that if the plaintiff failed in this action the defendant could never recover the costs of it against the plaintiff, and that “for the reasons above given,” the plaintiff should be ordered to give security for the costs. An adjournment had been applied for and granted, to allow of an affidavit being filed by plaintiff, but no affidavit was filed.[There was a similar application on behalf of Mr. O'Keeffe.]
J. J. Clancy, for the defendant, cited section 89 of the Municipal Corporations Act, 1840, 3 & 4 Vict. c. 108, and relying on Powell v. Reynolds (1), argued that the section was mandatory. He did not press the allegation of “personal malice,” &c.
W. G. Gibson, for the plaintiff, submitted that the section was discretionary, and that, as the question of malice was abandoned and the plaintiff's poverty the only ground on which the application was supported, the application should be refused. In no...
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