Scott v Bennett

• Jurisdiction: Ireland
• Judgment Date: 03 February 1868
• Date: 03 February 1868
• Court: Court of Exchequer Chamber (Ireland)

Exch. Cham.

Before HITESIDE, C. J., PIGOT, C. B., O'BRIEN, J., FITZGERALD, B., FITZGERALD, J., DEASY, B., and GEORGE, J.

SCOTT

and

BENNETT

Bennett v. Scott 7 Ir. Jur. N. S. 299.

M'Alister v. Callan 8 Ir. C. L. App. 10; S. C. 4 Ir. Jur. N. S. 4.

Banks v. Newton 4 Dowl. & Lownd. 632; S. C. 11 Q. B. 340.

Tod v. TodENR 1 Bligh N. S. 639.

Doe d. Christmas v. OliverUNK 2 Sm. L. C. 656.

Reed v. JacksenENR 1 East, 355.

Rex v. CarlileENR 2 B. & Ad. 362.

Irwin v. Sir George GrayENRELR 19 C. B. N. S. 585; S. C. on Appeal, L. R. 1 C. P. 171.

Molins v. WerbyENR 1 Lev. 76.

Cole v. GreeneENR 1 Lev. 309.

Huffer v. AllenELR L. R. 2 Exch. 15.

The Earl of Glasgow v. The Hurlet and Campsie Alum CompanyENR 3 H. L. C. 25.

Brittain v. Kinnaird 1 Brod. & Bingh. 432.

the Queen v. Bolton 1 Q. B. 66.

Cooper v. PeggENR 16 C. B. 264, 454.

Reid v. AshbyENR 13 C. B. 897.

Burgess v. The Guardians of the Mitchelstown UnionUNK 4 Ir. C. L. 566.

Southwell v. Bird 7 Dowl. Pr. C. 557.

Astley v. Joy 9 Ad. & Wl. 702.

Nokes v. Frazer 3 Dowl. Pr. C. 339.

Cowell v. The Amman Colliery Company 6 B. & Sm. 333.

Moore v. WatsonELR L. R. 2 C. P. 314.

Edge v. WandersfordUNK 9 Ir. L. R. 161.

Tinkler v. Roland 6 Nev. & Man. 848.

Cossey v. DiggonsENR 3 B. & Ald. 546.

The Marquis of Anglesea v. Dibden 10 Bingh. 568.

Powell v. SonnettENR 3 Bingh. 381; S. C. on Appeal, 1 Bligh, N. S. 545.

England v. Davison 9 Dowl Pr. C. 1052.

Kilburn v. KilburnENR 13 M. & W. 671.

Grindley v. HallowayENR 1 Dougl. 307.

Good v. WatkinsENR 3 East, 495.

Mellish v. RichardsonENR 9 Bingh. 125; S. C. on Appeal, 1 Cl. & fin. 224.

Newton v. BoodleENR 6 C. B. 529.

Butler v. CorneyENR 2 Exch. 474.

Ricketts v. NobleENRENR 3 Exch. 521; S. C. 4 Exch. 260.

Barton v. Hunter Cro. Eliz. 106.

Meggot v. Broughton 1 Hud. & Br. 569.

Dooly v. The Great Northern Railway Company 2 Ell. & Ell. 576.

Rex v. PolandENR 1 Str. 49.

Hickman v. ColleyENR 2 Str. 1120.

Concannon v. KellyUNK 7 Ir. C. L. 133.

Blunt v. Evans 3 Ir. Jur. N. S. 340.

Bishop of Exeter v. Gully 5 Man. & Ry. 451; S. C. 10 B. & Cr. 584.

Lessee Lawlor v. Muray 1 Sch. & Lef. 75, 83.

Page v. PearceENR 8 M. & W. 677.

Thompson v. GibsonENR 8 M. & W. 277.

Dibdin v. The Marquis of Anglesea 10 Bingh. 568.

Quan v. Frazer 9 Ir. Jur. N. S. 268.

Kerr v. The Midland Great Western Railway Company 10 Ir. C. L. App. 45.

Hearns v. The Lancashire and Yorksire Railway Company 7 Ir. Jur. N. S. 378.

O'Rorke v. M'Donnell 13 Ir. C. L. App. 8.

Devine v. The London and North-western Railway Company 10 Ir. Jur. N. S. 26.

Bonsey v. WordsworthENR 18 C. B. 325.

Enright v. Kavanagh 15 Ir C. L. 142.

Alexander v. JonesELR L. R. 1 Exch. 133.

Dawson v. Coleman 10 Ir. Jur. N. S. 75.

Tudor v. LawsonUNK 15 Ir. C. L. 144.

Darcy v. Hastings 10 Ir. C. L. App. 24.

Walsh v. WalshUNK 17 Ir. C. L. 195.

Roe v. More Comyn, Rep. 597.

Banks v. Newton 11 Q. B. 340.

Barney v. JubbENR 2 H. Bl. 352.

Fitzpatrick v. Pickering 2 Wils. 68.

Forbes v. SymmondsUNK 2 Sc. N. R. 178.

Andrews v. LintonENR 2 Ld. Raym. 884.

Powell v. SonnettENR 3 Bing. 381.

Powell v. SonnerrENR 3 Bing. 382.

King v. Birch 3 Q. B. 425.

Phillips v. Birch 4 M. & Gr. 405.

Lord Bagot v. WilliamsENR 6 T. R. 607.

Ravee v. FarmerENR 4 T. R. 146.

Preston v. Peeke Ell. Bl. & Ell. 336.

Bagot v. WilliamsENR 3 B. & C. 237.

Thorpe v. CooperENR 5 Bing. 129.

Bartlett v. PentlandENR 1 B. & Ad. 704, 710.

Barton v. Hunter 1 Hud. & Br. 569.

Hickman v. ColleyENR 2 Strange, 1120.

Watson v. QuilterENR 11 M. & W. 761.

Chapman v. SpeerUNK 8 Ir. L. R. 278.

Oakes v. Albin M'Clelland's Rep. 582.

Cooper v. PeggENR 16 C. B. 274.

Griffiths v. Thomas 4 D. & L. 109.

M'Alsiter v. Callan 8 Ir. C. L. App. 10; S. C. 4 Ir. Jur. N. S. 4.

Astley v. Joy 9 Ad. & Ell. 702.

Nokes v. Frazer 3 Dowl. 339.

Lander v. Gordon 8 Dowl. Pr. C. 910.

Irwin v. GreyENR 19 C. B. N. S. 585.

Banks v. Newton 11 Q. B. 340; S. C. 4 Dowl. & L. 632.

Jacques v. Casar 1 Wms. Saunds. 100.

Cooper v. GingerENR 8 Mod. 316.

Castledine v. MundyENR 4 B. & Ad. 90.

Banks v. Newton 11 Q. B. 343.

Ricketts v. NobbleENRENR 3 Exch. 526; S. C. 4 Exch. 260.

, 1856, s. 97 Costs of Action disconnected with Contract where a sum not exceeding 5 was recovered No Certificate Memorandum of Error in fact Estoppel Jurisdiction Discharge of Jury from finding on certain Issues Consent to be presumed.

VoL. III.] COMMON LAW SERIES. 217 SCOTT v. BENNETT (1). Common Law Procedure Act, 1856, s. 97-Costs of Action disconnected with Contract where a sum not exceeding 5 was recovered-No Certificate-Order of the Court-Memorandum of Error in fact-Estoppel-Jurisdiction -Discharge of Jury from finding on certain Issues-Consent to be preÂÂsumed. Exch. Cham. 1868. Feb. 3. The 97th section of the Common Law Procedure Act, 1856, provides that, when the parties reside within the same Civil Bill jurisdiction in which the cause of action has arisen, if the Plaintiff in an action for a wrong or injury disconnected with contract does not recover a sum exceeding 5, he shall not be entitled to any costs, unless, at the trial, the Judge gives a certificate, as required by the section, or (in case there shall be no trial) unless the Court or a Judge make an order to the like effect. In an action for an injury disconnected with contract, the case went down to trial, and, after the jury had been sworn, the matters in dispute in the action were, by consent, referred to arbitration. The arbitrators found for the Plaintiff, with 2 10s. damages, and 6d. costs. In pursuance of the terms of the subÂÂmission, the findings of the arbitrators on the issues and the assessment of damages were entered on the postea as the verdict of the jury; and the record was made up in the ordinary form, as if the case had been tried throughout by the jury. No certificate was obtained from the Judge at the trial. On the application of the Plaintiff, an order was subsequently made by the Courtof Common Pleas, under the 97th section of the Common Law Procedure Act, 1856, that the case was a fit case to be tried in one of the superior courts. Upon that order having been obtained, the Taxing Officer taxed the Plaintiff's costs, which were entered on the judgment as his costs de increnzento. The Defendant thereupon filed a Memorandum of Error in fact, and assigned as error that the parties resided within the same Civil Bill jurisdiction, that the cause of action arose within that jurisdiction, and that the Plaintiff had not obtained a certificate from the Judge at the trial ; and that, therefore, the judgment was erroneous in awarding the Plaintiff his costs of suit. To that assignment of error the Plaintiff pleaded the reference to arbitraÂÂtion, the award of the arbitrators, and the order of the Court of Common Pleas. To that plea the Defendant replied that, as the record stated on its face that there had been a trial, the Plaintiff was estopped from showing that there had been no trial, in which case only the Court of Common Pleas had jurisdiction to make the order. (1) Before WHITESIDE, C. J., PICOT, FrrzoEnwl, J., DEAsy, B., and C. B., O'BRIEN, J., FITZGERALD, B., GEORGE, J. VoL. III. 218 THE IRISH REPORTS. [I. R. To that replication the Plaintiff demurred. The Court of Common Pleas (dissentiente CHRISTIAN, J.), gave judgment allowing that demurrer. Error having been brought from that judgment, Held (dissentiente WIUTESIDE, C. J.), (affirming the judgment of the Court of Common Pleas), that the Plaintiff was not estopped by the record from showing that the case had not been tried by a jury, but had been referred to arbitration. That the questions of fact necessary to be determined, in order to give the Court below jurisdiction to make an order under the 97th section, are to be deÂÂcided by that Court on motion, and not by a jury on issues raised on a suggestion. And that, the decision of the Court bolo won the question whether or not there had been a trial, having been made on interlocutory motion, could not be reviewed by a Court of Error. It appeared by the record that the jury had been discharged from finding on certain issues, but it was not stated that they had been so discharged by the consent of the parties. Held, that such consent was to be presumed. ERROR from the Court of Common Pleas. In this ease the action was brought for the diversion of a water course. The Plaint also contained counts in trespass and trover. The Defendant traversed the several causes of action, and justified the doing of the acts complained of on various grounds not maÂÂterial to be stated. The case came on to be tried before Chief Justice Lefroy, at the Summer Assizes, 1861, for the Queen's County. After the jury had been sworn, and before the case was opened, the matters in dispute in the action were referred to the arbitration of three of the jurors, who found some of the issues for the Plaintiff, some for the Defendant, and, as appeared from the postea; were discharged from finding on the remaining issues ; and they assessed the damages at 2 108. In pursuance of the terms of the reference, the findings on the several issues and the assessment of damages were entered on the postea as the verdict of the jury ; and the postea was made up in the ordinary form. In the title of the Summons and Plaint, both the Plaintiff and Defendant were described as residing in the Queen's County. No certificate to entitle the Plaintiff to costs under the 97th section of the Common Law Procedure Act, 1856, was obtained from the Chief Justice at the Assizes. The Taxing VOL. III.] COMMON LAW SERIES. 219 Officer refused to tax the Plaintiff's costs on the grounds-that the Exch. Chase. parties resided within the same Civil Bill jurisdiction, that the cause of action arose within that jurisdiction, and that the PlainÂÂtiff, having recovered a sum not exceeding 5, had not obtained a certificate from the Judge at the trial. In Easter Term, 1862, the Plaintiff applied to the Court of Common Pleas, under the...