The Atty.- General for Ireland (Humphreys) v Goveenors of Schools Founded by Erasmus Smith, Esq.

• Jurisdiction: Ireland
• Judgment Date: 13 January 1910
• Date: 13 January 1910
• Docket Number: (1909. No. 793.)
• Court: Court of Appeal (Ireland)

The Atty-General for Ireland (Humphreys)

and

Governors of Schools founded by Erasmus Smith, Esq. (1).

Appeal.

(1909. No. 793.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

The HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1910.

Information — Relator — Appearance in person — Staying proceedings — Signature to writ and statement of claim — Ord. IV., Ruies 1, 2 — Practice.

In an information at suit of the Attorney-General he alone is recognized by the Court as plaintiff, and the relator must issue the writ and deliver the statement of claim by a solicitor, who (though in accordance with recognized practice he may be selected by the relator) is treated as solicitor for the Attorney-General. Accordingly, when the writ of summons was issued and signed, and the statement of claim signed and delivered by the relator in person, the Court, on the application of the defendants, stayed the proceedings.

The writ and statement of claim in such a case being nullities, a defendant is not precluded from making such an application by having entered an unconditional appearance to the writ.

This suit was commenced by writ, entitled, “Between His Majesty's Attorney-General for Ireland at the relation of David Humphreys, plaintiff, and the Governors of the schools founded by Erasmus Smith, Esq., defendants.”

It sought to have the trusts of an indenture of the 1st December, 1657, and Letters Patent of the 3rd November, 1667, and a charter of King Charles 2, dated the 26th March, 1669, carried into execution, and consequential relief.

The writ bore the following endorsement:—

“This writ was issued by the said David Humphreys, whose registered address is Gresham Hotel, 21 and 22 Upper O'Connell Street, Dublin, the relator, who resides at Killenaule, in the county Tipperary, and is a parish priest.”

The statement of claim, entitled in the same way as the writ, was expressed to be delivered on the 18th October, 1909, by the relator, of 21 and 22 Upper O'Connell Street, Dublin, and Killenaule, county Tipperary.

The Attorney-General, before granting his fiat, required the relator to give security for costs. The relator declined to do so and applied for a writ of mandamus to compel the Attorney-General to grant the fiat unconditionally. This both the King's Bench Division (17th December, 1908) and the Court of Appeal (28th January, 1909) refused. Thereupon the relator gave the required security, and the writ and statement of claim were submitted to the Attorney-General, who, by letter, authorized them to be respectively issued and delivered. The writ was served on the 30th July, 1909, and an appearance thereto was entered in due course by the defendants.

The defendants, on the 17th December, 1909, applied to His Honour the Master of the Rolls, to whose Court the action was assigned, for an order staying the proceedings; and an order was made, the curial part of which is as follows:—

“It appearing to the Court that the writ of summons in this action has been issued and signed, and the statement of claim signed and delivered, by the relator alone, who is not a party to this action, and not by or on behalf of the Attorney-General, the sole plaintiff in this action, by a solicitor, or counsel acting on his behalf, this Court doth order that all proceedings in this action be stayed until further order.”

The relator appealed.

The Rev. David Humphreys, P.P., the relator in person, in support of the appeal:—

Although I am not plaintiff in the action, I am a party to it. In Order V., Rule 6, with reference to issuing a writ in the Chancery Division, the expression “plaintiff or other party” is used. “Party” is used in the Judicature Acts to describe a person concerned and interested in the proceedings, and who is neither a “plaintiff” nor a “defendant”: Daniell's Chancery Practice, 6th ed., 33. Here I am concerned and interested. I am neither plaintiff nor defendant, and, therefore, I must be a “party.” Then where a “party” is suing in person, as I am doing here, he is to put upon every writ he sues out, and upon every pleading he delivers, his name, residence, and address for service: Daniell, 47. I have done that here. Pleadings are to contain the name and address of the party delivering same, if he does not appear by solicitor: Daniell, 389. That has been done here. The proceedings are, therefore, perfectly regular. The Master of the Rolls relied chiefly on the case of The Attorney-General v. Ironmongers' Co. (1). Lord Langdale, M.R., only objected to the Attorney-General appearing to oppose the information. In this he was apparently wrong, for the Attorney-General, Sir John Campbell (who was soon afterwards made Lord Chancellor of...