Nicolls v Corr and Others

• Jurisdiction: Ireland
• Judge: K. B. Div.,Madden, J.
• Judgment Date: 21 June 1909
• Court: Court of Appeal (Ireland)
• Docket Number: (1907. No. 7085.)
• Date: 21 June 1909

Nicolls

and

Corr and Others (1).

K. B. Div.

Madden, J.

Appeal.

(1907. No. 7085.)

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.

1909.

Practice — Costs — Taxation — R. S. C., I., 1905, Order LXV, Rule 65, (41) and (42) — Action which could have been brought in a County Court — Bond in penal sum — Breach — Damages recoverable admittedly under £50 — Judgment at Nisi Prius — Motion to vary as affecting costs — Jurisdiction.

Held, by the King's Bench Division (Kenny and Dodd, JJ.; Boyd, J., dubitante) and by the Court of Appeal, that the case came within Order LXV, Rule 65, (41) and (42), and that the costs of a third counsel and of instructions (other than instructions to institute proceedings), and of perusals, ought not to be allowed as between party and party.

Held, also, by Madden, J. (the Judge before whom the action was tried),

on an application by the plaintiff to vacate the judgment as entered, and in lieu thereof to enter judgment for £400, with an award of the payment of £50 with costs on taxation, that when a judgment at Nisi Prius has been passed and entered in the form in which the Judge intended to give, and in fact did give, it, the Judge has no jurisdiction to alter the form of the judgment in such a way as to affect the costs of the action.

This action was brought by the plaintiff, Archibald E. J Nicolls, secretary of the Loan Fund Board of Ireland, against Patrick Corr, Terence Gervin, and John M'Cann, upon a bond, dated 9th March, 1901, whereby the defendants became jointly and severally bound to the plaintiff, as secretary of the Loan Fund Board of Ireland, in the sum of £400. The bond recited that the defendant, Patrick Corr, had been duly appointed treasurer of the Coalisland Loan Fund Society, and the condition in the bond was that if the said Patrick Corr should justly and faithfully execute his office of treasurer of the said Society, and faithfully perform the duties of the said office (which duties were specified in the condition in the said bond), then the said bond should be void; but that otherwise it should remain in full force and effect.

The plaintiff, who sued as secretary of the Loan Fund Board of Ireland, by his statement of claim suggested several breaches of the condition in the said bond, and claimed £400 and costs of the action. The defendants denied the breaches of the condition suggested in the statement of claim, and also pleaded certain facts by way of equitable defence.

The action was tried before Madden, J., and a special jury on 23rd and 24th July, at the Londonderry Summer Assizes of 1908. The jury found, in answer to the first three questions put to them, that the defendant, Patrick Corr, had broken the condition in the bond in each of the particulars specified in the said three questions. In answer to the fourth question, the jury found that it was by reason of the breaches specified in the first three questions that the Coalisland Loan Fund Society had suffered damage, and they assessed the damages at £50. The four other questions which were submitted to the jury related to the facts upon which the defendants relied by way of equitable defence to the action. All these questions were answered in favour of the plaintiff. Madden, J., gave judgment for the plaintiff in the sum of £50, with costs, and certified for discovery and for a special jury for both parties. He also stayed execution until the second day of the ensuing sittings, and in the event of a motion for a new trial or for judgment being served by a defendant on or before that day, until such motion was heard. No such motion was instituted by any of the defendants.

Judgment for the plaintiff for £50, with costs when taxed and ascertained, was passed and entered on 31st October, 1908.

The plaintiff had been represented at the trial by two senior and one junior counsel; and upon the taxation of the plaintiff's costs the defendant, Patrick Corr, objected to the allowance of the costs of more than two counsel, or of the plaintiff's costs of instructions other than instructions to institute proceedings or of perusals, upon the ground that “having regard to the amount recovered,” the action could have been brought in the County Court, and that the Judge had not at the trial certified under his hand that more than two counsel were reasonable and proper, nor had he made a special order as to costs of instructions or of perusals. These objections were based on Order LXV, Rule 65, (41) and (42), of the Rules of the Supreme Court (Ireland), 1905. The Taxing Master (Master Goff) ruled in favour of the plaintiff, upon the ground that, having regard to the form of the action, it could not have been brought in the County Court. The defendant, Patrick Corr, then instituted the present motion to review the taxation.

Upon the hearing of this motion it was stated by counsel for the plaintiff that Patrick Corr had been in the employment of the Coalisland Loan Fund Society at the date when the action was tried, and for a short time afterwards. The arguments and judgments in the King's Bench Division proceed upon this assumption.

D. S. Henry, K.C. (Murnaghan with him), for the defendant Corr:—

Section 35 of 14 & 15 Vict. c. 57 gives the County Court Judge jurisdiction in “all disputes or differences between party and party for any sum, damages, or penalty, not exceeding £40 (now £50).” These words are wide enough to cover damages for breach of a condition in a bond. In passing this statute the Legislature had in contemplation cases where a plaintiff would be penalized in costs if he prosecuted in the High Court an action which could have been brought in the County Court: see sect. 40 (now repealed) of the statute. This section placed a limit on the costs of actions in “debt, covenant, detinue, or assumpsit (save actions for breach of promise of marriage),” if the amount recovered was within the limits therein prescribed. An action on a bond implies a debt, and therefore comes within the terms of both these sections.

Section 40 of 14 & 15 Vict. c. 57 has been replaced by Order LXV., Rule 65, (41) and (42). The test adopted by these sub-rules is not the amount claimed, but the amount recovered: Solomon v. Mulliner(1).

The plaintiff will contend that this action could not have been brought in the County Court. It is therefore necessary to review the course of legislation dealing with actions of this class. Formerly the practice was that the plaintiff might assign as many breaches as he should think fit, and that the jury should assess damages for as many breaches as were proved by the plaintiff to have been committed: 9 Wm. 3, c. 10, s. 8 (Ir.) (2); Hardy v. Bern(3). That enactment was repealed—so far as actions in the High Court are concerned—by the Common Law Procedure Amendment Act (Ireland), 1853, and a new procedure was substituted by sect. 146 of the latter statute. This section directs that where the plaintiff succeeds judgment shall be entered for the penal sum named in the bond, with liberty to the plaintiff to issue execution for the damages assessed by the jury for the breaches proved to have been committed, the damages recoverable being limited to the amount of the penal sum; and until that limit is reached the plaintiff can suggest further breaches, and recover damages for them if proved to have been committed. A further change of procedure has been effected by Order XIII, Rule 15, and Order XLII, Rule 9; but neither these Rules, nor the Common Law Procedure Act, 1853, apply to actions in the County Court. The question, therefore, is, could an action such as this have been brought in the County Court after the enactment of the 14 & 15 Vict. c. 57, and prior to

the date when the Common Law Procedure Act, 1853, was passed? I submit that it could. Pike's Practical Precedents contains a form of civil bill in an action upon a bond: see also Copinger, Law and Practice of the County Court in Ireland, p. 39. The enactment contained in 9 Wm. 3, c. 10, s. 8 (Ir.) (1), was never made applicable to an action in the County Court.

Pringle (Horner, K.C., with him), for the plaintiff:—

Under Order LXV, Rule 65, (41) and (42), the amount recovered in an action is not the sole test to be applied. If the action could not have been commenced in the County Court, these sub-rules do not apply: Whitehaven Colliery Co. v. M'Kenzie(2). I contend that this action could not have been brought in the County Court. In such an action the plaintiff must claim the full amount of the penal sum named in the bond: Tuther v. Caralampi(3); Mayne on Damages, p. 286; Bullen & Leake, p. 135; Roscoe, Nisi Prius, vol. ii, p. 752. “An action on a bond is always in point of form for the recovery of the penalty”: Leake on Contracts, p. 772.

Section 8 of 9 Wm. 3, c. 10 (Ir.) (1), is still in force as regards actions in the County Court: Carleton's County Court Practice, p. 499. The words of that section are mandatory, and where it applies the plaintiff must claim the full amount of the penalty.

The judgment in the present case is wrong in form. Judgment should have been given for £400, with liberty to the plaintiff to issue execution for £50: Common Law Procedure Amendment Act (Ireland), 1853, s. 146. The defendant Corr was in the employment of the Coalisland Loan Fund Society when the action was tried, and further breaches of the condition contained in the bond might have been committed by him. If the judgment had been given in the form prescribed by section 146, the plaintiff would have had an appropriate remedy in case further breaches had been committed by Corr. The plaintiff could not have obtained this remedy in the County Court; but the words of Order LXV, Rule 65, (41) and (42), are “having regard to the amount recovered … or the relief awarded.” Therefore, this

case should not be regarded as coming within...