Page images
PDF
EPUB

V.

CROSTH-
WAITE.

The 28th section of the Commissioners Clauses Act 1847 (which H. T. 1864. Queen's Bench regulates the proceedings at the election of Commissioners, and is incorporated in the Towns Improvement Act 1854) has also been THE QUEEN referred to by relator's Counsel. In that section the words "he" and "his" are used with reference to the voters. And Counsel rely on this as indicating the intention of the Legislature that the right of voting should be confined to males; but on reference to the interpretation clause of that Act, it will be seen that those words "he" and "his" are to be construed as including both males and females. And the form of voting-paper given in schedule A, referred to in that section, contains no words confining that right to males such as are contained in the schedule referred to in the 6th section of the Towns Improvement Act of 1854, and on which I have already observed.

It has been also urged, that, since the 9 G. 4, c. 82, which provides for the lighting, cleansing and watching of cities and towns in Ireland, there has been no instance of females voting at the election of Commissioners under that Act. But even if there was a decision against their right to do so, it would not bind us in the present case, because the provisions and language of that Act, with respect to the qualifications of voters at such elections, are different from those in the Towns Improvement Act of 1854, with respect to the election of Commissioners thereunder.

On these several grounds I concur in the judgment which has been pronounced.

HAYES, J.

There is nothing in the principles of the Common Law, or in the enactments of any statute, which excludes females from voting for Town Commissioners. With respect to the general right to vote, everything has been said that is necessary, and I concur in it. When we look at the nature of the duties of the office, I do not find anything which in the performance of those duties involves the necessity of a female outraging the modesty and retiring disposition which so well become her sex. All that she has to do is to appear before the returning officer; answer a couple of questions; and

CROSTH

H. T. 1864. hand in a paper. But what is the duty to be done by the ComQueen's Bench missioners for whom she votes ? They are intrusted with the THE QUEEN disposal of property to a considerable amount, to be employed in บ. carrying into execution all or some of the several purposes mentioned in the preamble to the Act (17 & 18 Vic., c. 103); and this property is to be realised by contributions levied out of the pockets as well of females as of males.

WAITE.

Upon the general principle that there shall be no taxation without representation, and that it is not inconsistent with justice and common sense that females should have a voice in the election of persons who are to manage the property which by the law of the land females are allowed to acquire and to hold, I think that the first question in the special verdict should be answered in favour of the claimants.

FITZGERALD, J.

Concurring as I do in the result at which the Court has arrived, I only wish to add that I am not to be taken as concurring in any expression indicating an opinion that ladies are not entitled to sit as Town Commissioners, if the electors choose to elect them.

M. T. 1864.

Nov. 3, 4.

M. V. 1864.
Dec. 13.

JAMES DEVINE and PATRICK PENTONY

v.

THE LONDON & NORTH WESTERN RAILWAY CO.*

Plaint con-
tained two
counts in con-
tract for non-
delivery of
goods; also
counts for trover and for detinue. Defendant traversed contracts alleged in the two
first counts, and paid £14. 2s. 6d. into Court on the other two. Issues were taken
on the two first counts, and as to the sufficiency of money paid into Court. Verdict
for plaintiff upon one of the counts in contract, with £14. 5s. damages, but for de-
fendant on the other counts. The Taxing-master allowed only half plaintiff's costs.
Held (by LEFROY, C. J., and FITZGERALD, J.), affirming the Master's decision,
that the plaintiff had recovered less than £20 in an action of contract.

THE summons and plaint in this action contained four counts, in
the first two of which the defendants, as carriers of bullocks for

hire from Dublin to Huntingdon, were sued for breaches of contract.

Held (by O'BRIEN and HAYES, JJ.), that all the counts should be considered as one action, and therefore that defendant was entitled to full costs.

* Before the Full Court.

Queen's Bench

DEVINE บ.

The contract stated in the first count was to carry twenty-four M. T. 1864. bullocks of the plaintiffs from Dublin to Huntingdon, and there deliver them for the plaintiffs, in such time that the bullocks could reasonably be at St. Ives, near Huntingdon, a reasonable time. before a certain market which was to be held at St. Ives at about 8 a. m. on January 11th, 1864.

The contract set forth in the second count was to carry twentyfour bullocks from Dublin to Huntingdon, and there deliver them for the plaintiffs within a reasonable time.

The third count claimed damages for the conversion by the defendants to their own use; and the fourth count was for the detention, by the defendants, of one bullock of the plaintiffs.

Prayer for judgment:-On the first and second counts £50; on the third count £20; and on the fourth count "the delivery of the said bullock, with £20 damages for its detention."

To the first and second counts the defendants pleaded that the bullocks were not delivered to or received by them upon the terms and conditions mentioned.

Further defence to the first count, that the bullocks were delivered at Huntingdon a reasonable time before the market. Further defence to the second count, that the bullocks were delivered at Huntingdon within a reasonable time.

As to the third and fourth counts, the defendants, averring that they related to the same bullock, brought into Court the sum of £14. 2s. 6d. in satisfaction of the cause or causes of action in those two counts.

The case was tried in Dublin on the 22nd of June 1864, before the LORD CHIEF JUSTICE and a special jury.

No evidence was offered by the plaintiffs on the third paragraph. The jury found a verdict for the defendants on the first, third, and fourth counts, and for the plaintiffs on the second count; and assessed the plaintiff's damages at £14. 5s. Od. in addition to the sum lodged in Court.

On taxation, the Taxing-officer allowed only half costs to the plaintiffs, on whose behalf

LONDON

AND N. W.
RAILWAY.

M. T. 1864.
Queen's Bench

DEVINE

v. LONDON

AND N. W.
RAILWAY.

M. O'Donnell (with whom was Palles) now moved the Court to direct the Taxing-officer to review his taxation; on the grounds that the present action was not one of those in which only half costs are allowed to plaintiffs by the Common Law Procedure Act (Ir.) 1853, s. 243; and that the sum recovered in this action was not less than £20. The plaintiffs recovered by force of this action £28. 7s. 6d., and are therefore entitled to full costs: Hughes v. Guinness (a); O'Rorke v. M'Donnell (b); Parr v. Lillicrap (c).

Serjeant Armstrong (and Boyd), contra.

In the former cases it was held that the cause of action on which the sum was recovered by verdict was identical with that in respect of which money had been lodged in Court; that therefore these two sums should be added together; and that in an action of contract there was not any difference between lodgment and payment into Court. But in the present case the defendants have not, in the counts in contract, recovered more than £20. The sum lodged in Court had no application to these counts. The two latter counts must be regarded as quite distinct from the first two: Blackmore v. Higgs (d). Erle, C. J. [p. 793], said:"But I take "the rule to be this, that, where there are two causes of action "disclosed by the declaration, and a distinct line of pleading "applicable to each, the two are for the purposes of costs to be "treated as being as distinct as if there had been two separate "actions. I think the plaintiffs are to be in no better position by "joining the whole in one action than they would have been in if "they had brought two."-[O'BRIEN, J. If the plaintiffs had recovered £17 on the counts in contract, and £4 on those in tort, and that there was no lodgment in Court, do you say that then also they would have been entitled to only half costs ?]-Yes.[LEFROY, C. J. The argument struck me very strongly, because the principle of reciprocity would be destroyed. The plaintiff might choose how to bring his action, and the defendant would have no (6) 13 Ir. Com. Law Rep. App., 8.

(a) 4 Ir. Com. Law Rep. 314.

(c) 1 H. & Colt, 615.

(d) 15 C. B., N. S. 790; S. C., 10 Jur., N. S. 703,

choice at all. The prayer for judgment shows that the causes of action sued upon are distinct and separate, so that the rule laid down by Erle, C. J., applies whether the action was in contract or in tort, or in both. If, therefore, it was possible to deem the detinue count as one of contract, still, the counts being founded on totally distinct contracts, and the sum of £20 not having been recovered on any one of them, the plaintiffs cannot obtain more than half costs; otherwise they might, by joining two separate causes of action in one plaint, place themselves in (a position better than that which they would occupy if they had sued in distinct writs. Counsel also cited Danby v. Lambe (a).

Palles, in reply.

The Common Law Procedure Amendment Act (Ir.) 1853, s. 60, regulates the mode in which costs are to be taxed in respect of matters upon which parties succeed in distinct issues; and the 78th section regulates the mode of taxation when money has been lodged in Court. When these provisions have been complied with, the question remains—at what rate are the other costs to be taxed? From the general enactment which gives a plaintiff his full costs in an action of this kind there are only two exceptions—namely, actions of contract in which £20 has not been recovered; and actions disconnected with contract in which the plaintiff has not recovered upwards of £5. These two classes of cases might be taken to be exhaustive of personal actions. But supposing the existence of a third class of cases which are neither actions of contract, nor actions wholly disconnected with contract, then the defendant here fails to bring himself within either of the two provisoes in the 243rd section, which alone can deprive the plaintiffs of their costs. Assuming, however, that these two provisoes exhaust every species of personal action, then the defendant must choose between them. If this is an action of contract, the plaintiffs have recovered £20, so that they are not deprived by the first proviso of their costs. If it is an action disconnected with contract, the plaintiffs have recovered upwards of £5, and therefore the (a) 11 C. B., N. S. 426,

M. T. 1864.
Queen's Bench

DEVINE ข.

LONDON

AND N. W.
RAILWAY.

VOL. 17

23 L

« EelmineJätka »