Magill v Magill

• Jurisdiction: Ireland
• Judge: Appeal.
• Judgment Date: 17 February 1914
• Court: King's Bench Division (Ireland)
• Date: 17 February 1914

Magill

and

Magill (1).

Appeal.

CASES

DETERMINED BY

THE KING'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.

1914.

Practice — Common Law action — Right to trial by jury — Jurisdiction to order trial by judge without jury.

Held, by the Court of Appeal, that there was no jurisdiction to order the action to be tried without a jury when the plaintiff refused to consent to such an order.

Appeal from an order of the King's Bench Division, refusing the plaintiff's motion for final judgment, and ordering that the action be tried before a judge without a jury, and without the delivery of any further pleadings.

The plaintiff sued the defendant on a specially endorsed writ, his claim being for £40 17s. 6d., whereof £38 12s. 6d. was for money paid by the plaintiff for and on account of the defendant at his request, and for principal and interest paid by the plaintiff to the Bank of Ireland, on foot of a promissory note for £35, dated May 19, 1913, and payable to the Governor and Company of the Bank of Ireland, at their offices, Dundalk, on September 22, 1913, made by the defendant as principal and by the plaintiff as surety for said defendant, which was duly presented for payment and dishonoured by the defendant, and whereof the sum of £2 5s. was for goods sold and delivered by the plaintiff to the defendant. On

January 26, 1914, the plaintiff applied to the King's Bench Division for final judgment for the sum endorsed on the writ. The defendant opposed the motion for final judgment, filing an affidavit alleging facts which in the opinion of the Court raised questions which ought to be tried, both in respect of the goods sold and the amount of the promissory note. The Court made no rule on the plaintiff's motion, and directed that “the action be tried before a judge without a jury, and without delivery of any further pleadings, the costs of the motion on both sides to be costs in the action.” Counsel on behalf of the plaintiff objected to that part of the order which directed the action to be tried without a jury and without further pleadings. The present appeal was by the defendant from so much of the order of the King's Bench Division as directed the action to be tried without a jury and without the delivery of any further pleadings.

Denis Henry, K.C. (with him, M'Loone, K.C.), for the appellant:—

There is no jurisdiction to order the action to be tried...