Quinn v M'Kinlay

• Jurisdiction: Ireland
• Judgment Date: 29 November 1901
• Docket Number: (1895. No. 12437.)
• Date: 29 November 1901
• Court: King's Bench Division (Ireland)

Quinn

and

M'Kinlay (1).

K. B. Div.

(1895. No. 12437.)

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.

1902.

Practice—Costs—“Recover” in the action “a sum less than £ 2 “—General Order LXV., Rule 4—Common Law Procedure Act, 1856, sect.97.

In an action of contract to recover £23 1s. 6d. the defendant paid the plaintiff after action brought the sum of £5, and pleaded it in the statement of defence as a payment on account of the sum claimed in the action. The jury, at the trial, found a verdict for the balance—£18 1s. 6d.—which the Judge certified in his certificate was exclusive of the £5 which had been so paid after action brought, and had been referred to as such in the pleadings. Judgment was entered for £18 1s. 6d., with costs, and the contents of the Judge's certificate were set forth on the face of the judgment. The parties resided within the jurisdiction of the Civil Bill Court of the county in which the cause of action had arisen:—

Held, that inasmuch as it sufficiently appeared on the files of the Court, from admission in the pleadings, from the judge's certificate, and on the face of the judgment, that the £5 had been obtained by force of the action, the plaintiff had “recovered” not “less than £20” in the action within the meaning of sect. 97 of the Common Law Procedure Act, 1856, and of order LXV., rule 4, and was entitled to the costs of the action.

Action by the Rev. Walter Buchan, Thomas C. Quinn, and Thomas Quinn, against Andrew M'Kinlay, senr., and Andrew M'Kinlay, junr., to recover a sum of £23 1s. 6d., the balance due on foot of a promissory note. The action had been commenced in 1895, and when it came on for trial in March, 1900, the original plaintiff and the original defendant were both dead, and the above-named parties were their personal representatives, respectively. The writ was issued on the 2nd December, 1895, and on the 7th January, 1896, the defendant handed to the plaintiff a receipt signed by the defendant's mother for a sum of £5 due to her by the plaintiff, which was accepted by the plaintiff as a cash payment on foot of the amount of £23 1s. 6d., which had been claimed in the writ of summons. On the 28th May, 1896,

judgment was entered in default of appearance for the sum of £18 1s. 6d., which judgment was afterwards set aside upon the application of the defendant on the ground of surprise. In the 3rd paragraph of the statement of defence the defendant pleaded the payment of £5 as a payment after action brought on account of the sum sought to be recovered in the action. The case came on for trial on the 22nd March, 1900, before Mr. Justice Andrews and a jury, at the Londonderry Assizes. At the trial the payment of the £5 after action brought was not disputed, and the jury found for the plaintiff for the balance, £18 1s. 6d. The learned Judge declined to certify that the case was a fit case to be tried in the Superior Courts, but, on the application of plaintiff's counsel, he certified in his certificate that the jury had found for the plaintiff for £18 1s. 6d., exclusive of the sum of £5 paid after the issue of the writ, being the £5 referred to in the 3rd paragraph of the statement of defence. Judgment was given for the £18 1s. 6d. with costs against the defendants. The contents of the Judge's certificate were set forth on the face of the judgment. Both the plaintiffs and the defendants resided within the jurisdiction of the Civil Bill Court in which the cause of action had arisen. The Taxing Master allowed the full costs of the suit, as the plaintiffs had recovered more than £20. The defendants appealed from this on the ground that the plaintiffs had recovered only £18 1s. 6d. in the action, and were not entitled to any costs.

Leech, for the defendants:—

The plaintiffs have recovered in the action a sum less than £20 within the meaning of Order LXV., Rule 4. To entitle themselves to costs the plaintiffs should have recovered by verdict judgment or order in the action a sum not less than £20.

[He referred to Ashcroft v. Foulkes (1); Beard v. Perry (2); Bradley v. Archibald (3); Donnelly v. Coyne (4); Dixon v. Walker (5); Savage v. Lipscome (6); General Order LXV., Rules 56, 57, and 58; and General Order XXIV., Rule 3.

Horner, for the plaintiffs, contra:—

The £5 as well as the £18 1s. 6d. must be taken as having been recovered in the action, as it was obtained under compulsion of the writ.

[He referred to Parr v. Lillicrap (1); Hughes v. Guinness (2): O'Rorke v. M'Donnell (3); Palmer v. Garrett (4); Fewster v. Boggett (5); Crosse v. Seaman (6).]

Leech, for the defendants:—

Horner, for the plaintiffs, contra:—

Barton, J.:—

This case comes before us on a motion on behalf of the defendants to review taxation. The Taxing Master has given the costs of the action to the plaintiffs. The defendants contend that the plaintiffs are disentitled to costs, because the parties reside within the same civil bill jurisdiction, and the plaintiffs have recovered a sum less than £20. It is conceded that the parties reside within the same civil bill jurisdiction, and the only question for our determination is whether the plaintiffs have “recovered” a “less sum than £20” within the meaning of Order LXV., Rule 4, which is identical with section 97 of the Common Law Procedure Act, 1856.

It appears that this action commenced nearly six years ago, and that the original plaintiff and defendant are both dead, and that the present parties are their personal representatives. The plaintiff, in his writ of summons, originally claimed £23 1s. 6d., balance due on foot of a promissory note; and it is admitted that the whole of that sum of £23 1s. 6d. was due by the defendant to the plaintiff at the date of the commencement of the action. After the issuing of the writ the defendant handed to the plaintiff a receipt signed by the defendant's mother for a sum of £5 due to her by the plaintiff, which the plaintiff accepted as cash paid on foot of the claim in the action. Subsequently, in default of appearance, judgment was marked in May, 1896, for the balance, £18 1s. 6d. On the application of defendant this judgment was set aside on the ground of surprise, and afterwards, for nearly four years, the defendants staved off the recovery of this balance. A

statement of claim and statement of defence were filed. The defendants, in addition to sundry other defences, pleaded in the 3rd paragraph of their statement of defence, with reference to this sum of £5, that it was paid to the plaintiff since the issue of the writ of summons in respect of the amount sued for therein. Issue was joined automatically on the statement of defence, and the action came on for trial on the 22nd March, 1900, before Mr. Justice Andrews and a jury, at the Londonderry Assizes. At the trial the payment of the £5 after action brought was not disputed, and the jury accordingly found for the plaintiff for the balance, £18 1s. 6d. The learned Judge declined to certify that the action was one fit to be tried in the High Court; but on the application of plaintiff's counsel, and with the object of raising the question which now comes before the Court, he made the following reference in his certificate to this transaction about the £5:—“I certify that … the jury found for the plaintiff for £18 1s. 6d., exclusive of the receipt by the defendant's mother for the sum of £5 handed by the defendant to the plaintiff, and by him taken as cash after the writ of summons was issued in this action, being the payment of £5 referred to in the 3rd paragraph of the defendant's statement of defence.” The Judge gave judgment for the plaintiffs for £18 1s. 6d., with costs. The judgment, which was entered in the office on the 6th April, 1900, fully recited the Judge's certificate in the terms which I have quoted, and then proceeded:—“Therefore it is adjudged that the plaintiff recover against the defendant £18 1s. 6d. and his costs of suit on taxation.” No objection has been raised to the form of the Judge's certificate or of the judgment.

I think I have mentioned all that is material of the facts and history of this case, which seems to present the following question for our determination. We have a verdict and judgment for only £18 1s. 6d., i.e. for a less sum than £20. On the other hand, we have it admitted on the pleadings, certified by the Judge, and recorded on the face of the judgment, that there was, at the date of the issuing of the writ, due to the plaintiffs by the defendant a sum of £23 1s. 6d., and that since the issuing of the writ the plaintiff has obtained by force of the writ the sum of £5, which represents the difference between the amount that was due at the date of the issue of the writ and the amount of the judgment. Prima facie, and apart from statutory exception, a successful plaintiff is entitled to his costs which follow the event, and prima facie, unless disentitled by statute, this successful plaintiff is entitled to his costs of suit. But this rule, copied as it is from section 97 of the Common Law...