McCoy and Lyons, O'Neill v Patterson

• Jurisdiction: Ireland
• Judgment Date: 22 June 1939
• Date: 22 June 1939
• Court: Supreme Court

Supreme Court

McConn v. Laing.

MARY McCONN

Plaintiff

and

JAMES K. LAINGand by order, dated 18th March, 1938, ELLEN LAING

Defendant.

Action - Whether maintainable - Actio personalis moritur cum persona - Action for trespass - Death of defendant tortfeasor - Trespass continuing to within six months before the death - Grant of Letters of Administration - Administratrix joined as defendant more than six months after grant - Whether action survives - 3 & 4 Vict. c. 105, s. 31 - Common Law Procedure Amendment Act (Ir.), 1853 (16 & 17 Vict. c. 113), ss. 155, 158 -Common Law Procedure Amendment (Ir.) Act, 1856 (19 & 20 Vict. c. 102), s. 93 - Rules of the Supreme Court (Ir.), 1905, Or. XVI, r. 14;Or. XVII, rr. 1, 5.

Trial of Action.

The plaintiff, Mary McConn, brought an action against James K. Laing to recover damages for trespass to her premises.

The following statement of facts is taken from the judgment of Sullivan C.J.:—

"The action as originally framed was brought against James K. Laing to recover damages for trespass to the plaintiff's premises in Knox Street, Ballina, and for an injunction. The plaintiff alleged that the defendant in re-constructing his premises, which adjoin the premises of the plaintiff, trespassed upon the plaintiff's premises and closed a flue coming from the plaintiff's tap-room, thereby interfering with the plaintiff's use and enjoyment of his premises.

The originating summons and the statement of claim were delivered on the 16th July, 1936. No further step was taken in the action by either party prior to the 18th March, 1938. In the meantime the defendant died intestate on the 17th March, 1937, and on the 20th August, 1937, a Grant of Administration of his personal estate issued to his widow, Ellen Laing. On the 18th March, 1938, the plaintiff obtained an order 'that Ellen Laing be joined in this action as administratrix of James K. Laing the defendant now deceased, and that this action be continued against the said Ellen Laing as such administratrix.'

Ellen Laing delivered her defence on the 25th March, 1938. That defence was subsequently amended pursuant to leave given by order, dated the 14th March, 1939, and it was again amended by leave given at the trial on the 23rd March, 1939. As so amended it pleaded that the matters complained of were committed more than six months prior to the death of James K. Laing, and that the action was not brought within six months after the date upon which the defendant Ellen Laing took upon herself the administration of the estate and effects of the said James K. Laing deceased."

The action came on for trial before Maguire P., sitting without a jury. A number of witnesses were examined but their evidence is not material to this report.

From the decision of Maguire P. the defendant appealed to the Supreme Court (1) on the grounds (inter alia) that 1, the President misdirected himself in law in holding that the action was revived and that the plaintiff's claim disclosed a cause of action against the defendant Ellen Laing; and 2, that the President misdirected himself in law in holding that the cause of action disclosed by the plaintiff's claim did not abate.

The statute, 3 & 4 Vict., c. 105, s. 31, provides:— ". . . that an action of trespass or trespass on the case (as the case may be) may be maintained against the executors or administrators of any person deceased for any wrong committed by him in his lifetime to another in respect of his property, real or personal, so as such injury shall have been committed within six calendar months before such person's death, and so as such action shall be brought within six calendar months after such executors or administrators shall have taken upon themselves the administration of the estate and effects of such person. . . ."

The Common Law Procedure Amendment Act (Ireland), 1853, provides:—

"With respect to the effect of death, marriage, and bankruptcy upon the proceedings in an action:"

Sect. 155. "The death of a plaintiff or defendant shall not cause the action to abate, but it may be continued as hereinafter mentioned."

Sect. 158. "In case of the death of a sole defendant or sole surviving defendant, where the action survives, the plaintiff may file a suggestion of the death, and that a person named therein is the executor or administrator of the deceased, and may thereupon serve such executor or administrator with a copy of the summons and plaint and suggestion, and with a notice, signed by the plaintiff or his attorney, requiring such executor or administrator to file a defence within twelve days after service of the notice inclusive of the day of such service, and that in default of his so doing the plaintiff may sign judgment against him as...