may arise in which, upon either construction of the proviso it would be difficult to decide its effect; if, for example, the sum recovered for the tort did not exceed £5, and the entire amount recovered both for the tort and on the contract were less than £20. But with respect to the present case I am of opinion, as already stated, that in order to disentitle plaintiff to his full costs it is necessary for defendant to show that the case is one of those in which, by the terms of the proviso, plaintiff should only get half costs; and that as it does not come within those terms, the plaintiff is entitled to full costs under the previous part of the 243rd section. It may have been an omission on the part of the Legislature not to include in the terms of that proviso the various cases that might arise in consequence of the power given by the 54th section to join in one action causes of action on contract with those for tort disconnected with contract; but it is not, I think, for us to supply the omission. LEFROY, C. J. In this case I agree with my Brother FITZGERALD, who has adverted to all the cases bearing upon the subject, and therefore I shall not occupy time by adverting to them again; but I think that upon principle, and looking to the object of the Legislature, we are bound to make a distinction as to costs where the party recovers less than a certain sum. The policy of this new Act, and certainly one of its professed objects, was to diminish the costs of litigation, and to hold out the inducement also to sue in the Inferior Courts, where the parties could have their rights decided upon at much less expense. I would also further add that there was great good sense and policy in making the plaintiff, whose right to costs against the defendant was a mere legislative right, sue in the Inferior Courts, or lose one-half of his costs. The plaintiff is entitled by statute to get costs against the defendant; and he gets them in the ordinary manner, by the jury finding, according to the statute, sixpence costs; for the statute enacts that the plaintiff shall not recover any costs against the defendant, unless the jury give him costs as well as damages; and the plaintiff gets them under the VOL. 17 25 L M. V. 1864. DEVINE v. LONDON AND N. W. DEVINE บ. LONDON AND N. W. M. V. 1864. name of costs de incremento, so as to cover all his costs in the cause. Queen's Bench Now the statute, which reduces the plaintiff's right to costs when he does not recover above a certain sum, is an Act made for the ease and advantage of defendants; and so it has operated. For, if the plaintiff has the inducement of getting the full amount of his costs by suing in the Superior Courts, the very threat of an action may very often compel a defendant to yield to the claim which otherwise he would have a just right to resist. The very threat of an action in the Superior Courts, and the consequences following that the party is entitled to his full costs, is very often an oppressive way of obliging a defendant to yield to an unjust claim; and therefore the Legislature have made a distinction which it should not be in the power of the plaintiff to evade the law which makes a distinction between costs in actions of tort and costs in actions of contract, by joining a small matter with respect to a tort, so as to entitle him to get, by joining both together, full costs, and put himself in the position in which he would not and could not have been if he rested upon his case ex contractu. Here the plaintiff is not put to the election which he ought to be put to, and which the Legislature holds out an encouragement to him to make, namely, the jurisdiction of the Inferior Court, by holding out to him the disadvantage which the law imposes, of his losing half his costs if he brings into the Superior Court that case which could be adequately tried in the Inferior Court; and therefore it is that he should not evade the law, by joining to his cause of action ex contractu a small matter in tort, and then, adding the two together, to make an amount which he says he has recovered in the action, so as to evade the penalty which attaches to not recovering a certain sum-namely, getting only half costs. The maxim of law is,-" Quando duo jura in unâ personâ concurrunt, æquum est ac si essent in diversis.” The same rule that applies to rights, I would apply to disablilities. We are not to relieve the plaintiff from the disability that he suffers here by having recovered on the two counts in contract less than £20. We are not to relieve him from this disability, by allowing him to join to the cause of action in contract the matter ex delicto, and so free him from the disability that he would have laboured under if he had rested only on the first two counts. The parties went to trial upon the matter ex contractu; they never went to trial upon the other part. But I do not put it upon what de facto occurred; but upon the principle showing the mischief that would follow if the party was allowed to take himself out of the case, which the Legislature has provided for him, by suing in the Superior Courts. Therefore, I am of opinion that the Taxingofficer was perfectly right in giving only half costs to the plaintiff. M. V. 1864. DEVINE V. AND N. W. EDWARD WALSH v. JAMES and WILLIAM WALSH.* (Exchequer.) THIS was a motion by the defendant James Walsh to review a decision of the Taxing-master. The summons and plaint in the action contained two counts: the first for assault and battery; the second for obstructing a right of way. To these the defendant James Walsh pleaded, and traversed the first count; and, as to the second count, paid £5 into Court; alleging that that sum was sufficient to satisfy the plaintiff's claim in the second count. William Walsh filed no defence; M. T. 1866. Costs.-Action for assault and battery, and obstruc tion of right of way, against W. a and J.; W. allowed judgment to go by default. J. paid £5 into Court on the second count, and traversed first; and issue was taken on the traverse; the jury found a verdict for and the plaintiff drew out the money paid in on the second count, in full satisfaction of the cause of action. An issue was sent to the jury on the first count. The jury found for the plaintiff, assessing the damages at £1 over and above the sum paid into Court. No £1. The Taxing-officer alcertificate was obtained from the Judge at the trial. The Taxing- lowed plainmaster allowed the plaintiff his full costs. Dames. Hughes v. Guinness (a) does not touch this case; for there the defendant paid the money in on the wrong plea, and paid in too (a) 4 Ir. Com. Law Rep. 314: S. C., 7 Ir. Jur. 298. · Before the Full Court. tiff's full costs. The Judggave no certificate. Held, that the plaintiff was not enti tled to costs. M. T. 1866. little. Exchequer. WALSH v. WALSH. Besides sections 126 and 243 of the Common Law Procedure Act (16 & 17 Vic., c. 113), we must look at sections 75 and 78. The money being paid into Court on the second count, the plaintiff must adopt either the course permitted him under section 76, and draw the money out in full satisfaction of his cause of action, or that under section 78; if he adopts the latter he must take an issue as to the sufficiency of the sum paid into Court. He has adopted that under section 76; and that is equivalent to having entered a nolle prosequi on the second count. That sum of £5 would disappear from the judgment; and the plaintiff would be entitled to have an order for the taxation of his costs forthwith. Could he have that before the action was otherwise disposed of if his right of action still existed? The rule in England expressly postpones the right of the party to do this, but no such rule exists here.-[FITZGERALD, B. Would not the plaintiff be obliged to introduce all this transaction upon the Nisi Prius record ?]-These two counts referred to two totally different causes of action; and one of them was gone before trial. Plaintiff may rely on the fifth section of the Common Law Procedure Act. That section abolishes forms of action; but we must read it by the light of the 54th section "Causes of actions, of "whatever kind (except in ejectment) may be joined in the same summons and plaint, provided," &c. There are still distinct causes of action, though there is no longer any distinction as to the particular form of stating them: Blackmore v. Higgs (a).—[PIGOT, C. B. Suppose the plaintiff had drawn the money out of the Court, but had denied its sufficiency, and there was a verdict against him on that issue, would the defendant have been entitled to full costs?]-Yes.— [FITZGERALD, B. Would not that principle go to this length that, if no money were paid into Court at all, and a verdict were had for £5, and then for £1 he should get costs?]-Yes, if pushed to its full length; but that is not necessary : Devine v. The London and North-Western Railway Company (b); James v. Vade (c). Are we to be in no better position from having paid (a) 15 C. B., N. S. 790, 793. (b) 10 Ir. Jur., N. S. 26; S. C., supra, 174. (c) 29 Law Jour., Q. B. 129. Exchequer. WALSH บ. WALSH. this money into Court than we would be in if we had done nothing? M. T. 1866. -[PIGOT, C. B. Do they deal with Blackmore v. Higgs in Devine's case?]-The ground on which the Judges held for plaintiff was quite different; for they held that the wrong complained of was one disconnected with contract. As to the effect of taking money out of Court-Goodee v. Goldsmith (a); Harrison v. Watt (b). The receipt for the money states that it is accepted for plaintiff's whole cause of action, as directed under section 77.-[PIGOT, C. B. The cause of action shall be considered as "struck out" of the declaration, is the language of the old rules.- HUGHES, B. If you are right, I do not see what advantage there is in paying any money at all into Court]. Ryan, in support of the Taxing-master. The plaintiff could not have asked for a certificate, from the peculiarity of the case. This question depends upon sections 126 and 243. This was an action for wrong; and we recovered £6 in the action; we recovered against the other defendant under section 97; and against him we recovered £100. Hughes v. Guinness decides that money lodged in Court is money recovered in the action. Devine v. The London and North-Western Railway Company does not touch this case; nor does O'Rorke v. M'Donnell (c).— [FITZGERALD, B. Was not the sum in Hughes v. Guinness in exactly the same cause of action?]—Yes.-[FITZGERALD, B. You say that, if there is no section specially for assaults, actions for assault would come under tort in section 243?]—Yes.-[PIGOT, C. B. Suppose for £1000 and for £10; £1000 paid into Court, and proceedings for the £10, can plaintiff then get costs ?]-Does payment into Court alone, without anything being done further in the case amount to recovery at all?—[DEASY, B., referred to Farmer v. Fottrell (d).-[PIGOT, C. B. Is there any authority actually deciding, that where there are several demands in contract, and all are covered by money paid into Court, and then issue, for damages ultra as to amount, and then verdict of £15, what becomes of the (a) 2 M. & W. 202. (c) 13 Ir. Com. Law. Rep., App. 8. (b) 16 M. & W. 316. (d) 4 Ir. Jur. N. S. 37. |