Peter Scott & John Scott v Samuel Nelson

• Jurisdiction: Ireland
• Judgment Date: 18 November 1842
• Date: 18 November 1842
• Court: Queen's Bench Division (Ireland)

Queen's Bench

PETER SCOTT & JOHN SCOTT

and

SAMUEL NELSON.

Reynolds v. ClarkeENRENR 2 Ld. Ray. 1399; S.C. 1 Str. 634; 8 Mod. 272.

Haward v. BankesENR 2 Burr. 1114.

Scott v. Sheppard 3 Wils. 403.

Leame v. BrayENR 3 East, 593.

Day v. EdwardsENR 5 T.R.648.

Courtney v. collet 1 Ld. Ray. 272.

Savignac v. RoomeENR 6 T R. 125.

Morley v. GainsfordENR 2 H. Bl. 442.

Day v. EdwardsENR 5 T. R. 648.

Chandler v. BroughtonENR 1 Cr. & M. 29.

Ogle v. BarnesENR 8 T. R. 186.

HollandENR 10 Bing. 112.

Weeton v. WoodcockENR 5 M. & W. 587.

Reynolds v. ClarkeENR 2 Ld. Raym. 1402.

Harker v. BirkbeckENR 3 Burr. 1556.

Courtney v. ColletENR 1 Ld. Raym. 272.

Jones v. Hill 1 B. Moo. 100.

Spencer v. Godwin 4 M. & Sel. 265.

Lumby v. AlldayENR 1 Cr. & J. 301, 306.

Williams v. HollandENR 3 M. & Sc. 540, 550.

Wells v. OdeyENR 1 M. & W. 459.

Muskett v. Hill 7 Scott, 855.

Cardigan v. ArmitageENR 2 B. & C. 211.

Reynolds v. clarkENRENR 8 Mod. 272; S. C. 1 Str. 635.

Booth v. Oliver 1 Vin. Ab tit. Action case, K. Plc. 3; S. C. 1 Roll. Ab. 104.

Harker v. Birkbeck 3 Bur. 1556.

Courtney v. ColletENR 1 Ld. Raym. 272.

Savignac v. RoomeENR 6 T. R. 128.

Williams v. HollansENRENR 3 M. & Sc. 540; S.C. 10 Bing. 121.

Hensworth v. FowkesENR 4 B. & Ad. 460.

Pits v. GainceENR 1 Salk.10.

CASES AT LAW. 207 selves, settle a case without consulting the Attorney ; whatever doubts there may have been upon that subject, they have been removed by repeated decisions; and I consider the rule equally well settled, that it is not competent for the plaintiff and defendant to make a fraudulent settleÂÂment between themselves, for the purpose of ousting the Attorney of his costs. These are three established principles bearing upon this case, and the question is, whether Mr. Nolan has placed himself in such a position, as to induce the Court to make a rule acting upon the equity of the case in his favour ? I do not think there is any instance of an application like the present, under the existing circumstances. The application is, that the Attorney may be at liberty to proceed on the judgment, and the finding on the inquiry had thereon ; there is no application to set aside the order made by Judge Burton, pronounced in June last ; on the conÂÂtrary that order has been acted on, by serving the costs, demanding and receiving them ; therefore, one condition has been performed. He has applied for an order for which there is no foundation, and on which, until the order made by Judge Burton be reversed, he could not succeed. This is a case sui generic for liberty to proceed upon a judgÂÂment where no judgment exists ; and the object of it is to recover the amount of unknown costs. It is an application, as I conceive, against all principle, and has no foundation, and by yielding to it we would be giving a bad encouragement by allowing Attorneys to proceed when the client has received what he considered a sufficient compensation for his claim. I consider this motion, therefore, to be without precedent, and without principle, and that it must be refused with costs. Motion refused with eosts. PETER SCOTT & JOHN SCOTT v. SAMUEL NELSON. June 4, Nov. 18. TRESPASS on case.-This action had been tried before Crampton, J., at In an action of trespass on the last Spring Assizes of the county Antrim. the case, the declaration stated, that A. being possessed of a certain quarry, B. wrongfully and injuriously obstructed him in the use and enjoyment of it, by turning large quantities of water upon the same. A., on the trial, proved that B. had stopped up a drain, which A. bad opened, to prevent the water from flowing into the quarry ; and also, that B. had filled a pipe, which had been sunk in order to drain the quarry. Held-That such acts being immediate injuries, an action on the case could not be sustained, but that trespass vi et arnzis was the proper remedy. Semble-Where an injury is done to the soil and freehold, plaintiff has no election, but must bring trespass vi et arnzis. 208 CASES AT LAW. T. T. 1842. The declaration contained three counts. The first count stated, that Queen'sBench. the plaintiffs were possessed of a certain hereditament, to wit, a certain SCOTT stone quarry, and entitled to dig and carry away out of the said quarry, V. the stone therein ; and whilst the plaintiffs...