Wilson v McMains

JurisdictionIreland
Judgment Date03 February 1887
Date03 February 1887
Docket Number(1886 — G. No. 113.)
CourtUnspecified Court

Q. B. Div.

Appeal.

Before LAWSON, O'BRIEN, and JOHNSON, JJ.

(1886 — G. No. 113.)

WILSON
and

M'MAINS

Lyons v. PeacockUNK 12 L. R. Ir. 148

Jones v. CurlingELR 13 Q. B. Div. 262.

Cooper v. Whittingham 15 Ch. Div. 501.

Harnett v. Vise 5 Ex. Div. 307.

Kearney v. HarrisonUNK 10 L. R. Ir. 17.

Harris v. PetherickELR 4 Q. B. Div. 611.

Huxley v. West London Extension Railway Co. the Times' Reports; since reported — 17 Q. B. Div. 373.

Garnett v. BradleyELR 3 App. Cas. 944.

Jones v. CurlingELR 13 Q. B. Div. 262, 271.

Lapsley v. BleeUNK 6 L. R. Ir. 155.

The Guardians of the Poor of the Athy Union v. PrattUNK 16 L. R. Ir. 659.

Foster v. UsherwoodENR 3 exch. 1.

In re Mill's Estate; ex parte Commissioners of Works and Public Buildings 34 Ch. Div. 24.

Collins v. Walsh 5 C. P. Div. 27.

Turner v. Heyland 4 C. P. Div. 432.

Barker v. Hollier 8 M — W. 513.

Cooper in Whittingham 15 Ch. Div. 501.

Jones v. CurlingELR 13 Q. B. Div. 262.

Lyons v. PeacockUNK 12 L. R. Ir. 148, 151.

The Guardian of the Poor of the Athy Union v. PrattUNK 16 L. R. Ir. 459, 461.

Bradley v. GarnettELR 3 App. Cas. 944.

Huxley v. West London Extension Railway Co.ELR 17 Q. B. Div. 373.

Jones v. CurlingELR 13 Q. B. Div. 266.

Successful plaintiff — Right to costs — Discretion of Judge at trial by jury — "Special cause" 1877, sect. 53.

Q. B. Div. 1886. Nov. 9. WILSON v. M'MAINS (1). (1886-G. No. 113.) Appeal. Successful plaitair-Biglit to coats-Discretion of Jude at trial iy *1'- 1887. "Special cause"-Judicature (Ireland) Act, 1877, sect. 53. Feb. 3. Where, in an action for seducing a woman thirty-five years of age, it was proved that she had readily consented, and that the parties were very poor, and the jury having awarded only £10 damages, the Judge who tried the case stated upon the face of his order the foregoing circumstances, and his own opinion that no greater amount of damages could have been reasonably given or expected, as " special cause," under sect. 53 of the Irish Judicature Act, for depriving the plaintiff of his costs: Held, by Lawson and O'Brien, JJ., diss. Johnson, J., that, under the cirÂcumstances, the Judge's discretion as to costs should not be interfered with. Held, by Johnson, J., and the Court of Appeal, that the facts did not conÂstitute such " special cause," and that the plaintiff was entitled to his costs. Monox to reverse the order made by Murphy, J., at the trial of the action, depriving the plaintiff of his costs, notwithstanding that the plaintiff had. obtained a verdict which, in the ordinary course, would carry full costs, on the ground that special cause, within the meaning of the 53rd section of the Supreme Court of Judicature Act (Ireland), 1877, was not shown, and is not menÂtioned in the order, and that the circumstances set forth in the said order do not amount to special cause within the meaning of the said section, such as would empower the learned Judge to deprive the plaintiff of his costs. The action was tried at the Slimmer Assizes, 1886, for the county Tyrone, before Murphy, J., and a common jury. His Lordship s certificate stated as follows:-" The plaintiff in this case is a farmer, holding only a few acres, and is a man evidently in very poor circumstances. The defendant is also a farmer, not quite so poor as the plaintiff. The action was for the alleged seduction of the plaintiff's sister, who stated in her evidence that (1) Before Lawson, O'Banat, and JOHNSON, JJ. 'You XX.] Q. B., C. P., & EX. DIVISIONS. 583 she was aged thirty-five years when defendant had intercourse Q. B. Dir. with her ; that she allowed him to have intercourse when he said, 1886. WILSON WI ' If anything happened to her, she would be all right,' by which she understood defendant was to marry her. She only met him M'MkiNs. twice on the road. She never went or wrote to the defendant till after the child was born. After the writ was served the defendant's solicitor asked to have the case sent to the Civil-bill Court. I was of opinion that the action should never have been brought in the Superior Court ; that damages over £10 could not have been reasonably given or expected ; that, from the woman's own account, she was not in any way seduced. I made an order to deprive plaintiff of costs for the reasons above stated, viz. the circumstances out of which the cause of action arose, and the posiÂtion of the parties-plaintiff and defendant." The jury found for the plaintiff, with £10 damages. if Laughlin, Q.C. (with him Cooke), for the plaintiff, in supÂport of the motion : It is necessary that the Judge should state upon his certificate the reasons why he has refused the costs. The fact that he is not satisfied with the verdict is not a sufficient ground, under the 53rd section of the Judicature Act, for refusing the plaintiff his costs. The words in the section of the Irish Act are somewhat different from the corresponding English Order : Lyons v. Peacock (1). It was the right of the plaintiff to bring this action in the Superior Court, and the defendant had a right, if it was a proper case to have been remitted, to apply for an order remitting it ; and thereÂfore his leaving it in the Superior Court is some proof that it was a proper case to remain there. Once the time was out the Court could not remit it, even with the consent of the parties. The Judge says that she was not seduced by the defendant ; but the jury have found the contrary, and their finding is conclusive. If there is no default on the part of the plaintiff, he is entitled to his costs. Having allowed the action to remain in this Court, it does not now lie in the defendant's mouth to say that the case was not properly brought in the Superior Court. There was a letter, (1) 12 L. Ir. 148 584 LAW REPORTS (IRELAND). (1. R. Q. B. Div. before the time was out, asking for the consent of the plaintiff to 1886. the remittal of the action, and when that was not assented to the Wrr.soN defendant could have served notice to remit, and not having done WMAINS. so, it must be taken that he elected to allow the case to proceed in the Superior Court : Jones v. Curling (1) ; Cooper v. WhittingÂham (2). The Judge must take it that the facts found by the jury are correct. The amount recovered by the plaintiff ought not to have any weight against him, having regard to the fact that the amount payable for costs in some cases is fixed by Act of ParliaÂment, according to the amount recovered : Harnett v. Vise (3). J. Ross, contra : The question in this case is-What is " special cause " ? It is impossible to define it ; but there must be something unworthy or improper in the conduct of the party. The discretion of the Judge is not uncontrolled ; but it ought to require very strong grounds for the Court to interfere with that discretion. The circumstances under which the act took place were before the Judge, namely, that the woman was thirty-five years of age, and consented to the act under circumstances of great indecency, and after deliberation. It was not open to us to move to remit the action, as the plaintiff appeared to have some little property, which would have been sufficient to prevent such a motion being successful. The only course open to us was to ask for the consent to remit, as we did, and which proposal was peremptorily refused : Kearney v. HarriÂson (4) ; Harris v. Petherfek (5) ; Huxley v. West London Extension Railway Co. (6). O'BRIEN, J. :- A motion was made in this case to review an order of Mr. Justice Murphy depriving the plaintiff of costs in an action of seduction, in which £10 damages were recovered. The case is (1) 13 Q. B. Div. 262. (5) 4 Q. B. Div. 611. (2) 15 Ch. Div. 501. (6) The Times' Reports ; since re (3) 5 Ex. Div. 307. ported-17 Q. B. Div. 373. (4) 10 L. R. Ir. 17. VOL. XX.] Q. B., O. P., & EX. DIVISIONS. 585- certainly of an importance very much exceeding those which Q. B. Div. usually arise, both in a professional and public point of view ; for 1886. though an instance of the same kind may not frequently occur Wrx again, the principle that must be established, one way or another, 11,3Luas must govern a wide range of cases. Before the Common Law Procedure Acts, with the exception of the Statute of James I., as to assault, trespass, and slander, embodied, if I recollect, in the Act of William IV., for the amendÂment of the law, and some other provisions in special cases, there was no enactment limiting the right to costs by regard to the amount recovered, and in both the Common Law Procedure Acts, seduction is one of the actions excepted from their operation, which is, at least, a legislative declaration that it was not deemed proper that in such an action the costs should be affected by the damages, but should follow the event, according to the rule of...

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