FITZGERALD, J.

H. T. 1863.
Queen's Bench

BOLLANDS

บ.

MAN

CHESTER,

I concur in the view taken by the Court setting aside the verdict on the second ground, that it is manifest from what took place that the jury considered and came to the conclusion that there was an obligation on the defendants to communicate to the plaintiff the change which had been made in the time of departure of the early RAILWAY. train from Retford; and that, as the defendants had not given that notice, their conduct was unreasonable.

In that respect, I think that the jury took an erroneous view of the matter; and, the verdict therefore having been arrived at on improper grounds, the case ought to be re-considered.

ETC.,

LAWLER v. KELLY.*

(Exchequer.)

C. PALLES applied for leave to plead in an action of assault and battery-first, a certificate of the dismissal of the complaint upon the merits, under the 24 & 25 Vic., c. 94, s. 44, amended by 25 and 26 Vic., c. 52. Secondly, that the assault was committed in order to prevent a breach of the peace.

M. T. 1864
Exchequer.

Nov. 3.

To an action

of assault and

battery, a certificate under the 24 & 25 Vic., c. 94, s. 44, may be pleaded, toge

Application allowed. [FITZGERALD, B., dissentiente]. ther with a

plea that the

assault was committed to prevent a breach of the peace.

* Coram FIZTGerald, HUGHES, and DEASY, BB.

LYONS v. KELLER.*

Νου. 4.

THIS was an action of trover and detinue, for a deed of lease made In an action by the defendant to the plaintiff.

On the 28th of October 1864, the defendant tendered a consent to the plaintiff, that the action should be stayed, the defendant giving up the lease in question to the plaintiff, and paying one shilling damages, and the costs of the action necessarily and properly incurred, and that the consent be made a rule of Court. plaintiff returned no answer to the consent.

The

of detiuue, alleging no special damage, the Court will

compel the plaintiff to

elect whether

he will stay all proceedings on delivery of the chattel in dis

pute, on pay

H. P. Jellett (with whom was G. Waters) now moved that the ment by the action be stayed, upon the terms contained in the consent. Phillips v. Hayward (a), Peacock v. Nichols (b), Pickering v. the costs of the

Truste (c), were cited.

P. Keogh, for the plaintiff.

defendant of nominal damages, and all

action, or will proceed for greater damages at the

The defendant cannot have the action stayed by surrendering risk of all

costs.

(a) 3 Dowl. P. C. 362.

(6) 8 Dowl. P. C. 367.

(c) 7 Term R. 53.

* Coram FITZGERALD, HUGHES, and DEASY, BB.

Exehequer.

M. T. 1864. the lease. The plaintiff may still proceed to trial, and seek larger damages for the detention of the lease. The plaintiff will rest satisfied with an order to that effect, as was done in Earle v. Halderness (a).

LYONS

v.

KELLER.

FITZGERALD, B.

If the plaintiff elects to go on with the action, he will only get the costs of this motion; and should he fail to obtain more than the damages tendered, he will have to pay all the costs of the action. Should he now elect to stay all proceedings, he will get all his costs, including those of this motion.

The plaintiff's Counsel elected to stay all proceedings.

H. P. Jellett contended that the costs of the present motion should not be given to the plaintiff, as he had forced the defendant to the motion, by not accepting the consent tendered, although the order now made was in the very terms offered in that consent. The Court refused to alter their order, of which the following is the Curial portion :

It is ordered by this Court that (the plaintiff so consenting) this action be stayed, upon the terms of the said defendant handing over forthwith the said lease, and paying to the plaintiff the said sum of one shilling as damages, and the costs of this cause hitherto incurred, including the costs of this motion, when taxed and ascertained.

(a) 4 Bing. 462.

A

Nov. 13.

ARKINS v. BARNARD.

plaintiff, M. O'Donnell and Coates, for the plaintiff, moved to change the moving to venue from the city of Kilkenny to the city of Dublin.

change the

The action venue to the was one for slander. It had been tried at the Summer Assizes for place where

the cause of the city of Kilkenny 1864, before O'BRIEN, J. The jury had been action arose, discharged being unable to agree. The cause of action arose in and where the parties and all Dublin, and all the witnesses resided there.

their witnesses

reside, when a W. Ryan (with whom was Serjeant Armstrong) opposed the

trial held in

another dis. motion.

trict has

proved abor

The plaintiff had selected the city of Kilkenny, and the defendant

tive, must pay the costs of the motion.

was perfectly satisfied to have the case tried there. If the Court M. T. 1864. Exchequer. allowed the motion, the plaintiff must pay the costs: Comerford v. Daly (a).

The defendant filed no affidavit to oppose the motion.

PIGOT, C. B.

We allow this motion. As to the costs, were this the case of a defendant coming in to oppose a motion, made by a plaintiff under circumstances, stated on affidavit, which rendered it a motion of course, as the defendant leaves unanswered the affidavits of the plaintiff, we would not give any costs to the defendant. This Court will discourage opposition to such motions as this. But here the applicant is a plaintiff resident in Dublin, who, although the defendant and all the witnesses reside in Dublin, lays his venue in the city of Kilkenny. It is true that the cause of action arose at a time of the year when the only place where he could have the action tried was in the last town upon the Leinster Circuit; but at that time, in consequence of all the Circuits being out, it may have been impossible for the defendant to move before a Judge in a Chamber to change the venue to Dublin, where all the parties and witnesses reside.

The plaintiff brought his action as soon as possible in one sense, but as late as possible in another. It might very well have stood over to the Sittings after the ensuing Michaelmas Term, when it might have been tried with much less expense in the city where the cause of action arose, and where the parties and all the witnesses on both sides reside. But as the plaintiff chose to lay his venue far away from the city of Dublin, he must pay the costs of now bringing back the action to the place where the venue should have been laid.

The Court refused to measure the costs.

(a) 11 Ir. Com. Law Rep. 62.

ARKINS บ. BARNARD.

M'DONELL v. DOHERTY.

THE Sheriff of the county Clare seized the goods of X under an execution at the suit of Doherty. M'Donnell claimed them under

Nov. 23.

the

Upon bankruptcy of a debtor, before the sale of

his goods by the Sheriff, who had obtained an interpleader order, the Sheriff cannot obtain his costs of the order, although therein declared to be entitled to them.