The plaintiff should not issue execution immediately after taxing the costs, except where the circumstances of the case render it necessary, and if he do so unnecessarily he may be ordered to bear the expenses of the execution (Cruikshank v. Moss, 8 L. T. N. S. 439) Where judgment was signed for debt, and taxed costs without any notice of taxation, the Court refused to set aside the judgment as irregular (Field v. Partridge, 7 Ex. 689). When a year has elapsed since the trial, it is not, it would appear, necessary to give a month's notice, pursuant to the 178th G. O., 1854, previous to marking judgment (May v. Wooding, 3 M. & Sel. 500), and see unte, p. 36, note (v). As to marking a judgment nunc pro tunc, see post, s. 155. ment to be pleadings to ment marked 124. When it shall be required to sign any judgment, the When judgattorney requiring the same shall deliver to the proper officer made up, a correct summary or recital of the proceedings, briefly summary of stating the several pleadings, and the nature thereof, written be lodged, fairly on parchment, and signed by the attorney, and there- and judg upon the officer shall take off from the pleadings file the thereon. several pleadings in the cause in which such judgment shall be required to be made up, and shall place them, together with the said summary prefixed, in consecutive order upon the file of judgments, in the manner now used, or as may be hereafter directed by any general order of the Judges, there to be kept as the permanent records of the Court, and shall upon the said summary give the proper award of judgment (f); and it shall in all cases of enrolling judgments be sufficient to place on the roll a correct copy of the said summary or recital of the proceedings according to fact, together with the award of judgment in proper form, with a reference to the original pleadings on the judgment file, whereby the same may be immediately found and inspected; and no judgment so enrolled under the authority of this Act shall be liable to be disturbed on the ground of error, on account of any omissions hereby authorized: Provided always, that if it shall be deemed necessary, for the prosecution of any proceeding in error or any other purpose, it shall be lawful for the Court to order that the whole or any part of the pleadings shall be transcribed upon the roll, and the same shall be transcribed by the proper officer accordingly (g). . mary should (ƒ) Where at the trial there is a verdict for the defendant upon some of What sumthe issues, and a verdict for the plaintiff with damages upon the others, a contain. "summary" which omits the judgment for the defendant on the issues found for him is irregular and will be amended (Mohan v. Bloomfield, 13 Ir. C. L. R. 86). Where the summons and plaint contained two counts-one in Where genelibel, the other for a false and malicious representation founded upon the same ral finding. publication, and there was a general finding for the plaintiff, the Court, on a Where finding not complete. Enrolling judgment. Judgment for money de mands with out distinc motion for a new trial, held that the verdict for the full damages found might be entered on the libel count, the evidence not being sufficient to sustain the finding on the other count (Jones v. M` Govern, Ir. R. 1 C. L. 681). Where in an action for slander two defences were pleaded—one of justification and the other of privilege-and the jury sound for the defendant on the plea of privilege, but were discharged from finding upon the other, the Court, under the circumstances, allowed the defendant to enter up a judgment for the plaintiff on the defence of privilege, and retain his verdict upon the other (Cassidy v. Kincaid, 10 Ir. Jur. N. S. 176). And see further, as to entering up judgment on the good counts in a declaration where there has been a general finding, and the plaintiff does not wish to take judgment on the remaining counts, Ch. Ar. Pr., 12th ed., p. 463; Moore v. Great Southern and Western Railway Co., 10 Ir. C. L. R. 46; Quinn v. The National Assurance Co., 2 Ir. L. R. 37; Quinn v. Fitzgerald, 1 Ir. C. L. R. 552. And see ante, p. 58, note (g), as to the costs of issues which the jury was discharged from finding upon. Where after a judgment by default had been marked, the parties were allowed to go to trial, was held that the judg ment by default should be vacated before judgment could be entered upon the postea (Hayden v. Kavanagh, Ir. R. 5 C. L. 49). The award of judgment cannot be complete, nor can the judgment be finally made up until the costs are taxed (kyan v. Shee, 8 Ir. L. R. 268), unless indeed the plaintiff chooses to waive them, note (e), supra. As to how the judgment is to be made up in cases where the plaintiff is entitled to no costs or to half costs only, under the present Statute and the Common Law Procedure Act, 1856, see Bennett v. Scott, 8 Ir. Jur. N. S. 394, where it was held that a suggestion, suggesting an order of the Court which entitled the plaintiff to his costs, should be expunged from the record; and see the same case in the Exchequer Chamber, Ir. R. 3 C. L. 217. (g) When error was brought on a judgment on demurrer, the officer was directed to enrol the whole of the pleadings to which the demurrer related (Luttrell v. M'Creevy, 3 Ir. Jur. O. S. 237). The judgment may, it seems, be enrolled after any lapse of time (Barrow v. Croft, 4 B. & C. 388). As to enrolling a judgment nunc pro tunc, see Wright v. Keene, 10 Ir. L. R. 97; Martin v. M'Causland, Smythe, 363. 125. In all actions where the plaintiff recovers a sum of money, the amount which he is entitled to may be awarded to him by the judgment generally, without any distinction debt or dam- being therein made as to whether such sum is recovered by Vict. c. 76, 8. way of a debt or damages. tion between ages. 15 & 16 95. Award of costs in vexa tious actions. 43 Eliz. C. 68 16, 8.6; 22 & 23 Ch. 2, c. 3 & 4 Vict. c. 24, s. 2. 126. In all actions for a trespass on lands or tenements, assault and battery, or for slander, the plaintiff in such action, in case the jury shall find the damages to be under the value of Forty Shillings, shall not recover or obtain more costs of suit than the damages so found shall amount unto, unless the Judge at the trial shall certify under his hand, on the back of the abstract for Nisi Prius, that the assault and battery was sufficiently proved by the plaintiff against the defendant, or that the freehold or title of the land mentioned in the plaint was chiefly in question, or that the trespass was voluntary or malicious (h). (h) In an action for slander, if the plaintiff recovers less than forty shil- Slander. lings, he recovers no more costs than damages; and the Judge has no power to certify so as to entitle the plaintiff to any larger sum for costs. Under the corresponding English Statute (21 Jac. 1, c. 16, s. 6), it has been held that actions for slander of title, or for slander of plaintiff's wife, or other actions where the special damage is the gist of the action, are not within the Act (Lawe v. Harwood, Cro. Car. 141; Brown v. Gibbons, 2 Ld. Raym, 831; Kelly v. Partington, 5 B. & Ad. 645). The provisions of the present section do not apply to actions of libel, but by the Statute 31 & 32 Vict. c. 69 (post, in the Appendix), a limitation in the amount of costs has been provided where the damages do not amount to forty shillings. See 237 Libel. 31432 269 De c 55 When the plaintiff gets a verdict for less than forty shillings in an action Assault and al for assault and battery, he is entitled to no more costs than damages, unless battery. the Judge at the trial certifies on the back of the abstract for Nisi Prius that the assault and battery was sufficiently proved. As to when and how the certificate should be given, see the notes to sect. 97 of the Common Law Procedure Act, 1856, post. When the certificate is given, the case is still within sect. 243, post, and sect. 97 of the Common Law Procedure Act, 1856; and unless a greater sum than £5 be found for damages, the plaintiff will have to get the certificates mentioned therein, in order to entitle himself to half or full costs, as the case may be. It has been held that an action for an assault in which no battery is proved is within the section (Fitzgerald v. Gloster, 4 Ir. C. L. R. 239). Where the action was brought against the defendant for driving a coach against the one on which the plaintiff was riding, per quod he was thrown upon the ground, it was held that no certificate was necessary under the former Act (Chapman v. Spear, 8 Ir. L. R. 278, 461); but the section is applicable to cases where the trespass has been committed by the defendant's servant (Harford v. Kinsella, 5 lr. C. L. R. 95). Where an injury is done to a personal chattel, or where an injury to a personal chattel is laid in the same count with an assault and battery, or local trespass, provided it be a substantive independent injury, and not merely laid or proved in aggravation of damages, the case will not be within the present section (Tidd's Pr. 9th ed., 964; Barry v. White, 2 Jones, 28; Crockett v. Montgomery, Vern. & Scriv. 473). When the assault and battery is sufficiently proved to the satisfaction of the Judge, he cannot exercise a discretion founded on the other circumstances of the case as to granting or witholding his certificate (O'Neill v. Egan, 6 Ir. Jur. O. S. 347). In actions for trespass on lands or tenements, if the plaintiff recovers less Trespass on than forty shillings, he will be entitled to no more costs than damages, unless lands. the Judge certifies that the freehold or title of the land was chiefly in question, or that the trespass was voluntary or malicious, in which event the case will, as above remarked, in reference to actions for assault and battery, fall within sect. 243, post, and sect. 97 of the Common Law Procedure Act, 1856, in the cases thereby provided for. As to cases where an injury to a personal chattel is complained of, in addition to a trespass to the realty, see Tidd's Pr., 9th ed. p. 964, referred to above, and also the cases referred to there. Personal malice is not essential to enable the Judge to certify; and he may certify so as to give costs where the trespass is after notice (Sherwin v. Where judgment by default. Demurrer. Where two causes of action. Execution. Execution after trial. c. 76, s. 120. 66 Swindall, 12 M. & W. 783). And see as to the meaning of the words voluntary or malicious," Manning v. Chadwick, 4 Ir. Jur. N. S. 294, whence also it would appear that the Judge is bound to give the certificate when the trespass was voluntary or malicious. The provisions of the present Act apply to the case of a judgment by default (Lampen v. Hatch, 2 Str. 934; bu tsee Brennan v. Murphy, Hay. & Jon. 478. When the plaintiff obtains a verdict for a sum which entitles him to no more costs than damages, these damages determine the amount of the costs he is to receive in respect of the entire suit, including the costs of a demurrer upon which he has been successful (M'Govern v. M⭑Namara, 12 Ir. C. L. R. Ap. 15). When an action of slander was referred to arbitration, "costs to abide the event," it was held that the plaintiff was entitled to full costs, although the damages awarded amounted to less than forty shillings(Frean v. Sargent, 32 L. J. Ex. 281). When two causes of action are included in the same summons and plaint, one of which comes within the operation of the present section, and the plaintiff has a verdict on that count, which from its amount disentitles him to more costs than damages, and fails altogether upon the other count, he will not be entitled to any further sum for costs (Smith v. Harnor, 3 C. B. N. S. 829; see also Blackmore v. Higgs, 15 C. B. N. S. 790). But it would appear that if in such a case the plaintiff'succeeds on some of the issues on that cause of action upon which the defendant has a verdict, the plaintiff, though deprived of the costs of the cause by the present section, will be entitled to the costs of these issues (Sharland v. Loaring, 1 Ex. 375). A summons and plaint contained two counts-one for an assault and battery, and the other for the disturbance of a right of way; the defendant paid into Court £5 in discharge of the plaintiff's demand on the second count, which was accepted by him in full satisfaction; and a verdict for the plaintiff for £ was given for the plaintiff on the first count, but no certificate was given. It was held that the plaintiff was entitled to no more costs than damages, the action after the money was drawn out being one for an assault and battery alone (Walsh v. Walsh, 11 Ir. Jur. N. S. 378). With respect to execution (i): 127. A plaintiff or defendant, having obtained a verdict or 15 & 16 Vict. nonsuit in a cause tried out of Term, shall be entitled, without any rule on the postea or inquisition, to mark judgment and to issue execution in fourteen days, and in a cause tried in Term in four days (j), unless the Judge who tries the cause, or some other Judge, or the Court, shall order execution to issue at an earlier or later period, with or without terms (k); and it shall be lawful for the said Judge before whom the trial has been had, or any other Judge, or the Court, to make such order accordingly provided that, notwithstanding any judgment signed or recorded or execution issued by virtue of this Act, it shall be lawful for the Court in which such action shall have been brought to order such judgment to be vacated, and execution to be stayed or set aside, and to enter an arrest of judgment, or grant a new trial or new writ of inquiry, as justice may appear to require (7), and thereupon the party affected by such execution shall be restored to all he may have lost thereby in such manner as upon the reversal of a judgment by a proceeding in error, or otherwise as the Court may think fit to direct (m). (i) When the plaintiff's demand is for a debt or liquidated demand in money, arising upon a contract express or implied, he may in default of a defence or demurrer mark a final judgment and issue execution immediately upon the expiration of the time limited by the summons and plaint (sect. 96, supra). In other cases of judgment by default, where the amount for which final judgment is to be marked has to be first assessed by the Master or a jury (sects. 98, 100, supra), judgment may be marked and execution issued immediately upon the amount being assessed by the Ma ter or the writ of inquiry being returned, unless judgment and execution be stayed in the manner provided for by those sections and by the 63rd and 64th G. Os. 1854. See ante, pp. 104-107. Where, however, the inquiry has been sped before a Judge, the proceedings from the finding to issuing execution are to be the same as in the case of ordinary trials at Nisi Prius (sect. 100, ante). In such cases, therefore, the time within which judgment may be marked and execution issued is prescribed by the above section of the Act, and is. in cases where the cause has been tried out of Term, fourteen days, and where tried in Term, four days after the verdict, unless the Judge who tries the cause or some other Judge orders execution to issue at an earlier or later period; note (k), infra. In computing the respective periods of fourteen and of four days prescribed by the present section, both the day of trial and the day of marking judgment are to be excluded, so that fourteen or four clear days, as the case may be, must intervene between the trial and the marking of the judgment. See O'Meara v. Foley, Ir. R. 4 C. L. 116, a case decided under sect. 27, post. As to entering judgment on a bond and warrant, see the G. Os. 1854, 93-96. Independent of statutory enactment, an execution can be issued only upon a judgment of the Court. However, under 3 & 4 Vict., c. 105, s. 27, all rules of any of the superior Courts of Common Law, whereby any sum of money, costs, charges, or expenses are payable to any person have the effect of judgments. Such rules may, therefore, be enforced by execution; and it is not necessary, before issuing it, to apply to the Court for leave (Wallis v. Sheffield, 7 Dowl. 793). Previous to the Statute referred to a rule of Court was only enforceable by attachment, and this is still the case in reference to an order directing anything except the payment of money. For the same reason, an award directing a sum of money to be paid, notwithstanding that the submission has been made a rule of Court, cannot be enforced by execution, Ch. Pr., 12th ed., p. 1595. In order to obtain execution in such cases, the award must be made a rule of Court (Wallis v. Sheffield, 7 Dowl. 793; Jones v. Williams, 11 A. & E. 175; Kelly v. St. George, 4 Ir. L. R. 420; and see further as to the mode of enforcing orders, Ch. Pr. 12th Ed., p. 1594. The form of execution on a rule of Court is given in the schedule to the G. Os. of 1854. By the 31 & 32 Vict., c. 54, execution can be had in this country on an English judgment or Scotch decreet, by having a certificate of such judgment or decreet registered in the Court of Common Pleas. See the Act, post, in the Appendix. L |