Secretary of State for War v Studdert

• Jurisdiction: Ireland
• Judge: H. L.
• Judgment Date: 17 June 1902
• Court: Court of Appeal (Ireland)
• Date: 17 June 1902
• Docket Number: (1901. No. 44.)

SECRETARY OF STATE FOR WAR

and

STUDDERT

Appeal

Practice — Trial — Trial by jury — Composite action — Issues of fact — Claim for unliquidated damages — Action for account and fraudulent conspiracy.

Back v. HayELR5 Ch. D. 235.

Betts v. NeilsonELR L. R. 3 Ch. 429, 440.

Bordier v. Burrell Ibid. 512.

Boyd v. PhelanUNK 17 L. R. Ir. 538.

Clanricarde v. RyderIR[1898] 1 I. R. 98.

Clarke v. CooksonELR2 Ch. D. 746.

Coles v. Civil Service Supply Association 32 W. R. 407.

Coote v. IngramELR35 Ch. D. 117.

East India Company v. Henchman1 Ves. Jun. 287.

Ehrmann v. EhrmannUNK 72 L. T. (N. S.) 548.

Gardner v. JayELR29 Ch. D. 50.

Garling v. Royds 25 W. R. 123.

Hillman v. Mayhew 1 Ex. Div. 132.

Hinds v. BlackerUNK I. R. 11 Eq. 322; 1 L. R. Ir. 233.

Holloway v. York 2 Ex. Div. 333.

Holmes v. HarveyUNK 35 L. T. (N. S.) 600.

Jenkins v. BushbyELR[1891] 1 Ch. 484.

Lynch v. M'DonaldELR37 Ch. D. 227.

Pilley v. Baylis Ibid. 241.

Powell v. WilliamsELR12 Ch. D. 234.

Ruston v. TobinELR10 Ch. D. 558.

Smith v. HargroveELR16 Q. B. D. 183.

Spratt's Patent v. WardELR11 Ch. D. 240.

The Temple BarELR11 P. D. 6.

Timson v. WilsonELR38 Ch. D. 72.

Walsh v. RyanIR[1895] 1 I. R. 504.

Warner v. MurdochELR4 Ch. D. 750.

Wedderburn v. PickeringELR13 Ch. D. 769.

240 THE IRISH REPORTS. [1902. SECRETARY OF STATE FOR WAR v. STUDDERT (1). (1901. No. 44.) Practice—Trial—Trial by jury—Composite action—Issues of fact—Claim for unliquidated damages—Action for account and fraudulent conspiracy. An action having been brought in the Chancery Division against C. W. S. for damages for negligence as agent for the plaintiff in the purchase of horses, for fraudulent representation and conspiracy, and also for an account of all profits made by him as such agent, and against five other defendants for damages for conspiracy and an account of all profits made by them, the defenÂdants unsuccessfully applied to transfer the case to the King's Bench Division. The pleadings closed on the 14th June, 1901. On the 11th December, 1901, the defendants served notice of trial before the Vice-Chancellor with a jury, but the officer of the Court refused to set the action down. On the 14th December, 1901, the plaintiff served notice of trial by the Vice-Chancellor. The defendants applied for an order to set aside the plaintiff's notice of trial as irregular, and that the action should be set down for trial on the defenÂdants' notice, or that the action, or the issues of fact, should be tried by a jury. On appeal from an order of the Vice-Chancellor refusing the appliÂcation, the plaintiff undertook to strike out the claim against C. W. S. for negligence, and the claim for unliquidated damages : Held, that the action thus altered was a Chancery action which should be tried by a judge without a jury. The law and practice as to the right of trial by jury under the Judicature Act considered. ACTION by the Secretary of State for War against Charles Washington Studdert, John A. Studdert, Thomas Studdert, Wilfred Fletcher, J. W. Gregg, and John Widger, and the endorsement on the writ stated the cause of action against Charles W. Studdert, as purchasing agent of the Government, as for 1. Damages for fraudulent breach of duty in inducing Her Majesty's Government, through the Imperial Yeomanry ComÂmittee of the War Department, to make excessive payments for a large number of horses purchased by him as such agent, by falsely and fraudulently misrepresenting to the said. Committee (1) Before Firs GIBBON, WALKER., and Hums, L.JJ. VOL. I.] CHANCERY DIVISION. 241 the names of the persons from whom, and the prices for which, the said horses had been purchased. 2. Damages for false and fraudulent misrepresentations that he had purchased large numbers of said horses for prices largely in excess of the sums which were paid for same. 3. Damages for negligent conduct as such agent in examining and purchasing for the public service horses which were wholly unfit for the purposes for which, to his knowledge, they were required. 4. An account of all profits made by the said defendant in the course of his said employment as such agent, and in relation to his inspection, examination, and purchase of horses for the said War Department. The plaintiff claimed against all the defendants and each of them: 3. Damages for that they conspired and combined together to defraud Her Majesty's Government, through the said War Department, by aiding and assisting in the fraudulent breach of duty and wrongful acts of the defendant, Charles Washington Studdert, above mentioned, and 4. Damages for that they conspired and combined together to procure large and excessive payments from the said War Department, through the Imperial Yeomanry Committee, by falsely and fraudulently representing that large numbers of horses had been purchased through the agency of the said Charles Washington Studdert from persons from whom they were not purÂchased, and for prices largely in excess of the prices actually paid for same, and 5. Damages for that the defendants conspired and comÂbined together to obtain from Her Majesty's Government, through the said War Department, large sums of money by falsely and fraudulently pretending that a large number of horses supplied to the Government had been purchased by the defendant, Charles Washington Studdert, at a price of £30 for each horse, whereas, in fact, said horses had been purchased at prices much less than £30, the defendants, or some of them, agreeing with the defendant, Charles Washington Studdert, to divide the differences between them in certain proportions. VOL. I.] CHANCERY DIVISION. 243 the plaintiff and C. W. Studdert, and then the statement of Appeal. claim averred that it was fraudulently agreed between C. W 1902. Studdert and the other defendants (except Wider that John A. Wu. SECRETARY Studdert, Thomas Studdert, and J. W. Gregg should purchase V. STITDDERT. horses of an inferior class as regards quality, strength, and condiÂtion at prices much below the sum of £30 for each horse, and. that the horses so purchased should be returned by the defendant, C. W. Studdert, as having been purchased by him for £30 each, and that such horses should be passed by C. W. Studdert as suitable and proper. Down to the 29th March, 1900, 1001 horses were purchased, for each of which £30 was charged, and in the returns furnished by C. W. Studdert the following purchases were (amongst others) set forth :—Patrick Collins, Corofin, Co. Clare, 124 horses at .L30 ; W. Fletcher, Grennanstown, Athboy, 142 horses at £30 ; W. Gregg, Caucestown, Athboy, 57 horses at £30. The statement of claim averred that Collins was a clerk in the Land Agency Office of C. W. Studdert ; that the 124 horses were not brought from him; that they were bought by C. W. Studdert and John A. Studdert, and were returned as having been purÂchased by Collins to avoid suspicion ; that the horses were deficient in quality, strength, and condition; and that the profits of these sales were shared by C. W. Studdert and John A. Studdert. The 142 horses, stated to have been purchased from Fletcher, were bought at prices much less than £30, and were inferior and. unfit, and that the profits were divided between Fletcher, C. W. Studdert, and Thomas Studdert. The 57 horses purchased from Gregg were horses purchased by Gregg at prices much below the maximum price, and were deficient in quality and unfit, and that the profits of this part of the transaction were divided between C. W. Studdert and Gregg. Paragraph 41 of the statement of claim stated that C. W. Studdert was guilty of negligent conduct, as such purchasing agent, in his examination of, and in passing and purchasing for the public service, a large number of horses which in quality, strength, and condition were unfit for the purposes for which, to the knowledge of the defendants, they were required. 2,44 THE IRISH REPORTS. [1902_ Appeal. The prayer of the statement of claim was for: 1. Damages ; 1902. 2. Accounts of all the profits, rebates, and commissions received WA.s by the defendants, and each of them, in the purchase and sale to SECRETARY V. the Imperial Yeomanry Committee of the horses thereinbefore STITDDERT. mentioned ; 3. Discovery ; 4. Further relief. The defendants by their defences traversed the averments in the statement of claim. On the 11th March, 1901, the defendants moved to transfer the action to the King's Bench Division, and the Vice-Chancellor acceded to the application. His Lordship's order was reversed on appeal (1). The pleadings were closed on the 14th June, 1901. The action was discontinued against Widger. On the 11th December, 1901, the defendants served notice of trial of the action before the Vice-Chancellor with a jury,. but the officer of the Court refused to set the action down. On the 14th December, 1901, the plaintiff served notice of trial before the Vice-Chancellor. The defendants then applied for an order that the plaintiff's notice of trial be set aside as irregular on the ground that the same was served after notice of trial given by deÂfendants, and within six days thereafter, and while such last-menÂtioned notice of trial was in full force, and that the proper officer should forthwith set down the action for trial on the defendants' notice of trial ; or, without prejudice to the defendants' notice of trial, that the action should be tried before the Vice-Chancellor and a special jury of the city of Dublin on the questions or issues of fact in this action by such special jury. On the 13th January, 1902, the Vice-Chancellor refused the motion, and the defendants appealed. .Ronan, K.C., O'Shaughnessy, KC., Jellett, BC., M`Carthy Mahony, and Phelps, for the appellants : This action is a mixed action, part of it involving the decision of issues of fact which the defendants are entitled to have tried by a jury, and part of it being a question of law. Once the...