T. T. 1845. Each. of Pleas. June 4. O'DRISCOLL v. MACARTNEY. SAME v. GALWAY, BARRY and others. The costs of a THIS was a motion to review the officer's taxation of a bill of costs. former abor where the de fault has ari tive trial, The action had been one upon a scire facias, and the defendants Barry and others having been returned as terre-tenants, pleaded payment, the Statute of Limitations, and nul tiel record. The defendant Galway, who had been returned as heir-at-law of the conusor, had suffered judgment to go by default. Issue having sen from the act of either party, cannot be recovered by the party ultimately successful. been joined, the cause was brought down for trial at the Summer Assizes 1844 for the county of Cork; and when the cause had The Court on been in the list for some days, it was agreed between the attormotion, or the officer in tax- neys of the respective parties, that the cause should be referred ing the costs, cannot inquire to arbitration, and a draft deed of submission was accordingly which party executed by the plaintiff and Galway, who was in fact the real was in default. defendant, referring the cause and the costs thereof, and the costs of the said deed and reference, to arbitration: and the cause when called on in the Nisi Prius list was struck out, the attorney for Galway, who was also the attorney for Barry, assenting. If a cause at Nisi Prius has been referred to arbitration, and in conse quence of any default the proceedings on the arbitra tion are nuga In consequence of some default, the reference was not proceeded with, and the cause was again taken down for trial at the Spring Assizes 1845 for the county of Cork, when a verdict was had for tory, the party the plaintiff. The officer on taxation refused to allow the costs of the first trial, which had been rendered abortive by the reference to arbitration at abortive pro- the Summer Assizes 1844. of the ceedings, unless such have been expressly provided for by the deed of sub mission. Secus in the case of a rema net pro defectu juratorum, or withdrawing a juror. Bur chall v. Ballamy, 5 Bur. 2693, over ruled. Crean v. Crean, 2 Berkeley, for the plaintiff, now moved that the Court should direct the officer to allow the plaintiff the costs incurred in reference to the proceedings at the Summer Assizes 1844. Burchall v. Ballamy (a) is the leading case on this subject; and there the Court of Queen's Bench laid down the rule: "That in all cases where a cause goes "down to trial, and goes off upon any occasion without the fault, "contrivance or management of the parties, and is afterwards "brought down again to trial, the costs of such former abortive "going down to trial shall be taxed and allowed to the party finally Fox & Smith, 10, not the practice of this Court. (a) 5 Bar. 2693. Wood v. Duncan (a); "prevailing, in the same manner as if the cause had gone off upon a PENNEFATHER, B.-The case of withdrawing a juror falls within the same rule as the case of a remanet; in neither of which cases does the party, as he has here done, resort to another tribunal. If this were to be decided by the question of who was in default, it would lead to great difficulties in the mode of inquiry as to that default. The officer has no means of investigating the matter, and such a course would lead to a litigated motion in every case that surely could not be called a sound practice. BRADY, C. B.-Lord Abinger, in the case of Brown v. Clarke (i), says, "that if from the fault or defect of finding by the jury on the first "trial, the parties have gone to a second trial, the party ultimately "successful is entitled only to the costs of the trial in which he "succeeds." This case is similar to one occasioned by the default of the jury. (a) 5 M. & W. 87. (c) 1 Price, 310. (e) 1 Cr. & Mees. 203. (g) Ridg. L. & Sch. 505. (6) 2 Wils. 366. (d) 7 Moor. 147; S. C. 3 B. & B. 304. (f) 3 Dow. P. C. 372. (h) 2 Fox & Smith, 10. (i) 12 M. & W. 25. T. T. 1845. O'DRISCOLL V. MACARTNEY T. T. 1845. O'DRISCOLL บ. MACARTNEY PENNEFATHER, B.-Have you found any case where we have given the costs of an abortive trial in this Court? Berkeley. No such case can be found in this Court; but this is not the case of an abortive trial: here there was no trial at all in the first instance. The plaintiff does not seek for the costs of the arbitration; prima facie the party succeeding has a right to all the costs in the cause. PENNEFATHER, B.-Primâ facie you have withdrawn your record, and you are not entitled to the costs of withdrawing a record. Keller, on the other side. BRADY, C. B. We have not been able to discover that there has been such a practice as that contended for by Mr. Berkeley. Burchall v. Ballamy certainly seems analogous to this; but this very case shows what difficulty there would be in adopting the rule as there laid down, as it would in luce the necessity of bringing the facts of each case before the Court on affidavits to ascertain the question of default. If it be intended by the parties in such a case that the costs should abide the result, it ought to be agreed upon by the parties themselves. This is not at all like the case of a jury being discharged on a fatality, or a juror being withdrawn: here the parties stop the regular course of justice, and voluntarily resort to another tribunal. PENNEFATHER, B.-This motion is against the course of practice. in this Court. It is quite right, if possible, that the practice of the different Courts should be assimilated: but if we are called on to adopt the practice of the Queen's Bench, where our own is different, we ought to consider the propriety of that which we are called on to adopt. Now, what is sought for in this case? The parties serve notice of trial, and then they agree to change the tribunal which is to try their case, and to substitute Judges of their own choice. They contemplated that those Judges would have settled every thing. The arbitration goes off: we cannot tell how, or by whose default; and it is argued that there should be an inquiry by the officer into all the facts of the case and of the arbitration. The rule of this Court is, that where parties enter into a deed of submission, the costs of the trial which has been abandoned can never be brought into question. This case is a strong illustration of the soundness of the rule; for we are now asked to investigate the whole of this arbitration, and then to inquire as to the authority of the T. T. 1845. attorneys to enter into it. The practice in England is conformable Exch.of Pleas with the practice in this Court, and yet we are called on to adopt the O'DRISCOLL This practice of the Queen's Bench, which is contrary to our own. case is quite distinct from the case of remanets or withdrawal of jurors. RICHARDS, B., concurred. LEFROY, B. This motion must be disposed of strictly according to practice. My Brother Pennefather has stated the rule of this Court, and there is every reason for it. The Queen's Bench, in the case of Crean v. Crean, decided that the question must depend on the inquiry-who was in default? but such a course is quite at variance with a rule of practice, as each case would then depend on its circumstances, and such a rule of practice would be no guide. Were this case now before us for the first time, we should adopt our own practice, and not that of the Queen's Bench. Motion refused without costs. บ. MACARTNEY On a subsequent day the Chief Baron stated, that on looking into the practice in England, he found it conformable with that adopted by this Court, and that the rule as laid down in Burchall v. Ballamy had never been acted on there, as appears from the case of Thomas v. Lewis (a), and the judgment of Coleridge, J., in that case. (a) 5 Dowl. 395. T. T. 1846. June 5. under the Act 1 & 2 W. 4, c. 31, s. 12, it is not es JONES d. MOLONY v. EJECTOR. In proceeding THIS was an ejectment for non-payment of rent, brought under the provisions of the statute 1 & 2 W. 4, c. 31; and the declaration was specially entitled of Tuesday the 27th of May in Trinity Term 1845. The demise in the declaration was laid on the 26th of May, and the service was had in Trinity Term. Besides the usual notice that the ejectment was for non-payment of rent, there was the notice on the back of the ejectments directed to the several tenants in possession, calling on them to appear and plead within ten days from the date thereof. sential to the regularity of the proceedings, that the right of reentry accruing in the Term, should be the first and only right of re-entry that has accrued, but the Act is applic able to such cases although one or more previous rights of re-entry may have accrued before the Term in which the ejectment is brought. In ejectment for nonpayment of rent, where the gale days were 1st November and The lands the subject of the ejectment were held under a lease from the 28th of April 1835, from C. Molony to Richard O'Meara, for the life of the said lessee or twenty-one years, at a yearly rent of £190 payable half-yearly on every 1st of May and 1st of November. The affidavit of O'Meara, which was made to ground this motion, admitted that there were three gales of rent and upwards due on the 1st of May previous to bringing the ejectment. The lease also contained a clause of re-entry, if the rent reserved should be behind or unpaid for the space of twenty-one days after the day mentioned for payment thereof. Hatchell, with whom was E. Pennefather, now moved that the declaration and proceedings had thereon might be set aside for irregularity, inasmuch as the declaration was specially entitled of a day in the present Trinity Term, although the right of entry did not ing a clause of accrue, nor did the tenancy expire in Trinity Term, within the re-entry if the meaning of the statute. 1st May, the lease contain rent should be twenty-one days in arrear, a year's rent and upwards Christian, with whom was Macdonogh, on the other side, made a was due in November 1844, and a further half year on the 1st May 1845; Held, that the right of re-entry accrued under the terms of the statute on the 22nd of May 1845, although a right also existed in November 1844. Held also, that the express contract of the tenant giving the landlord a right to re-enter if the rent were in arrear for twenty-one days, gave him a right of re-entry on the 22nd of May, independently of the rule laid down in Keily v. Ahearne (Batty, 18, n). Held, that this statute (applies to ejectments for non-payment of rent; dubitante RICHARDS, B. Held also, that the objection in this case was properly made before the defendants appeared. |