M'Mahon v Ellis

• Jurisdiction: Ireland
• Judgment Date: 27 November 1860
• Date: 27 November 1860
• Court: Court of Common Pleas (Ireland)

Common Pleas.

M'MAHON

and

ELLIS.

Rex v. CohenENR 1 Stark, 511.

Batchelr v. EllisENR 7 T. R. 337.

Deacon v. FullerUNK 1 Dowl., P. C., 675.

Vernon v. Roe 7 Ad. & Ell. 14.

The Staffordshire and Worchester Canal Co v. The Trent and Mersey Canal Co.ENR 5 Taunt. 577.

Brocas v. Civit. LondonENR 1 Str. 234.

Barnewall v. SoutherlandUNK1 L., M. & P. 159.

Waton v. Quilter 1 Dowl. & Low. 244.

Bentley v. Clarke 1 Molyneux, 121.

Pinkus v. Sturch and anotherENR 5 C. B. 474.

Underhill v. DevereuxENR 2 Saund. 71.

Wright v. NuttENR 1 T. R. 388.

Richards v. HarrisENR3 East, 1.

Wythers v. Rooks and another Cro. Eliz. 574.

M'Mahon v. LeonardIR 10 Ir. Com. Law Rep. 456.

Green v. CauntlettENR 1 Str. 531.

Lesauld v. DyerENR 6 Mod. 57.

Bartlett v. PentlandENR 1 B. & Ald. 706.

Burton v. Hunter 1 Hud. & Bro. 569.

Lumley v. HampsonUNK 6 Dowl. P. C. 558.

COMMON LAW REPORTS. 437 M. T.'1860. Common Pleas M'MAHON v. ELLIS. (Common Pleas). Nov. 22, 23, 27. 438 COMMON LAW REPORTS. M. T. 1860. 178th General Order (1854) having been obtained, and served Common Pleas upon the plaintiff. M'MAHON This case, in which the plaintiff had obtained a verdict in the year 1852, had been argued before the Court of Common Pleas, upon a bill of exceptions, and had been subsequently carried into the Court of Exchequer Chamber, and finally into the House of Lords, where judgment was given in July 1858, affirming the judgment of the Court of Exchequer Chamber (which reversed the judgment of the Court of Common Pleas), and awarding to the defendants, against whom the verdict had been originally found, a venire de novo. The record of this judgment was not finally made up until August 1859. The House of Lords also ordered that the plaintiff should pay to the defendants the sum of 543, as costs of the appeal to that tribunal. In November 1859, the defendants issued execution upon this order, for payment of the sum of 543, and a motion was made in the same month by the plaintiff, in this Court, to set aside the execution ; and upon the 25th of that month the Court delivered their judgment, refusing the application, and ordering that the costs of the motion should be paid by the plaintiff.* Upon the 15th of November 1859, the defendants served notice of trial, which was withdrawn a few days afterwards; and upon the 15th of November 1860 (no step having been taken by the plaintiff in the meantime), the defendants served the plaintiff with a notice of trial for the next Nisi Prius Sittings; and furnished the abstract of Nisi Prius and issues. The defendants had, upon the previous day, filed the following suggestions :-" And afterwards, to wit, on "the 14th day of November 1860, it was suggested, and manifestly "appeared to this Honorable Court, that before the last mentioned "day, to wit, upon the 22nd of June 1857, the said defendant " Sir Thomas B. Leonard, Bart., died, leaving the said Nicholas "Ellis, Henry Whiteside and Robert Irwin him surviving." There was another similar suggestion of the death of the defendant Robert Irwin, upon the 1st of December 1859. A notice of the filing, * 10 Ir. Corn. Law Rep. 444. together with copies of these plaintiff. When the case was before the House of Lords, the judgment of that tribunal had been amended, upon petition, by inserting in it a suggestion of the death of Sir Thomas B. Leonard, a co-defendant, in the following form :-" And whereas afterwards " it was suggested, and manifestly appeared to the Court of Parlia ment, that after the joinder in error, and on the 22nd day of "June 1857, the said Sir Thomas B. Leonard died, leaving the "said defendants Nicholas Ellis, Henry Whiteside and Robert " Irwin him surviving." Macdonogh, in support of the application. Whiteside and R. Armstrong, contra. E. M. Kelly, in reply. The arguments of Counsel are stated in the judgment of the Court. The following authorities were cited in the argument : Rex v. Cohen (a); Batchelor v. Ellis (b); Deacon v. Fuller (c); Doe d. Vernon v. Roe (d); The Staffordshire and Worcester Canal Co. v. The Trent and Mersey Canal Co. (e); Tidd's Forms, 9th ed., p. 264 ; Chitty's Forms, p. 816 ; Brocas v. Civit. London w ; Barnewall v. Southerland (g); Watson v. Quilter (h); 2 Ferg. Pr., p. 1058, referring to Bentley v. Clarke (i); Pinhus v. Sturch and another (k); Underhill v. Devereux (1); Wright v. Nutt (m) ; RichÂÂards v. Harris (n); Tidd's Forms, p. 238 ; Archb. Pr., by Chitty, p. 1501 ; Common Law Procedure Act 1853, ss. 108, 156 ; Ferg. Common Law Procedure Act, p. 283 ; Common Law Procedure (a) 1 Stark, 511. (e) 1 DowL, P. C., 675. (e) 5 Taunt- 577. (g) I L., & P.159. (0 1 Molynenx, 121. (I) 2 Sannd. 71. (5) 7 T. B. 337. (d) 7 Ad. & EL 14. (f) 1 Str. 234. (h) 1 Dowl. & Low. 244. (I) 5 C. B. 474. (m) 1 T. 388. 440 COMMON LAW REPORTS. M. T. 1860. Act 1856, s. 93 ; Wythers v. Rooks and another (a) ; 156th and Common Pleas 178th General Orders 1854 ; M'Mahon v. Leonard (b) ; Green V. M4MAHON Cauntlett (c); Lesauld v. Dyer (d); Bartlett v. Pentland (e); v. ELLIS. 5 G. 4, c. 160, s. 4 ; Burton v. Hunter (f); Lumley v. SampÂÂson (g). Cur. ad. volt. Nov. 27. MONAHAN, C. J. This was an...