1

Defences without leave.

Marking judgment.

Certain defences may be pleaded together without leave.

15 & 16 Vict.

c. 76, s. 84.

may be required. The party applying must also take care not to suppress in his affidavit any circumstances which, if they were before the Judge, would induce him to refuse the application; and if he do so, the defences may be set aside (Finn v. Albert Insurance Company, 8 Ir. Jur. N. S. 94).

The Judge may, however, in his discretion, give leave to plead several defences without any affidavit (Cooke v. Levey, 7 Ir. C. L. R. 506; Williamson v. Gallagher, 1 Ir. Jur. N. S. 50).

A certificate must, in every case, be given by counsel, that the proposed defences are proper and necessary; and unless the certificate be given no order will be made out in the office (Cullinan v. Walker, 8 Ir. Jur. N. S. 93). When leave to plead several matters is obtained, the defences pleaded in pursuance thereof must strictly follow the terms of the order (Dixon v. Franks (7 Ir. Jur. O. S. 239); and if they do not, the plaintiff may mark judgment (Bailey v. Baker, 9 M. & W. 769). The defendant may, however, abandon a defence he has obtained leave to plead.

If defences have been filed without leave, the defendant may afterwards apply for leave that they may stand (M‘Loughlin v. Jeffers, 12 Ir. C. L. R. App. 50); and if they have been filed before the expiration of the time for pleading, it would be irregular for the plaintiff to mark judgment until the time has expired (Nolan v. Collins, 6 Ir. Jur. O. S. 210).

By the 45th G. O., 1854, "if either party, without a rule for that purpose, plead and demur, or reply and demur, or plead or reply several matters, for the pleading of which a rule is required, the opposite party may mark judgment without notice."

When called on to mark judgment under this Order, the Master should exercise a judicial authority in determining whether the case comes within the Order or not (Cullinan v. Walker, 8 Ir. Jur. N. S. 93). In Austin v. Tuite, 8 Ir. C. L. R. 30, the Court held that the words, "several matters spoken of in the Order, refer to several matters pleaded in several distinct pleas, but are not intended to include several matters introduced into one plea; the plaintiff's course in the latter case being to apply to the Court under the 83rd sect. of the Act. And see also Spaddacini v. Walsh, 5 Ir. Jur. O. S. 55. As to setting aside a judgment regularly marked pursuant to the General Order, see Murphy v. Nugent, 6 Ir. Jur. O. S. 257.

58. The following defences, or any two or more of them, may be pleaded together as of course, without leave of the Court or a Judge; that is to say, a defence denying any contract or debt alleged in the declaration, a defence of tender as to part, a defence of the Statute of Limitations, set-off bankruptcy of the defendant, discharge under an Insolvent Act, plene administravit, plene administravit præter, infancy, coverture, payment, accord and satisfaction, release, a denial that the property, an injury to which is complained of, is the plaintiff's, leave and licence, son assault demesne, and any other pleas which the Judges of the said Superior Courts, or any eight or more of them, of whom the Chief Judges of the said Courts shall be three, shall, by any Rule or Order to be from time to time by them made in Term or Vacation, order or direct (m).

(m) Where a defendant applied for leave to plead payment into Court as When leave to part of the demand, and payment and set-off as to the residue, no rule unnecessary. was made upon the motion, as such an application was unnecessary (Hoare

v. Stafford, Ir. R. 4 C. L. 217); and see Hall v. O'Flaherty, 6 Ir. Jur. O. S. 113.

and demur

c. 76, s. 80.

59. The defendant may, by leave of the Court or a Judge, Double pleas plead and demur, or the plaintiff may reply and demur to the rer. same portion of the summons and plaint or defence at the 15 & 16 Vict. same time (n) upon an affidavit by the party pleading, or his attorney (0), if required by the Court or a Judge, that he is advised and believes all the objections raised by demurrer are good and valid objections in law; and it shall be in the discretion of the Court or a Judge to direct which issue, whether of fact or law, shall be first disposed of (p).

demur.

(n) The application for leave to plead and demur must be upon notice Leave to (M Lester v. Fagan, 9 Ir. C. L. R. Ap. 25); and when the party applying plead and seeks to take issue upon the entire of the pleading objected to, his course is to apply for leave to reply, and not to take issue (Germaine v. Athenæum Life Assurance Co., 1 Ir. Jur. N. S. 316). As to the form of the replication in such a case, see ante, note (1).

Taking issue

and demurring.

It is a matter altogether for the discretion of the Court to grant or refuse the application (Thomas v. Knowles, 24 L. J. Ex. 43). The Court has, however, no power under the section to allow a defendant to rejoin and Rejoining demur (Dunne v. Gumley, 8 Ir. C. L. R. Ap. 2). In such a case, the de- and demurfendant's only course would be to rejoin, and then, if necessary, move after- ring. wards in arrest of judgment; and if he demurs, and fails upon demurrer, the overruling of the demurrer admits the replication to be true in substance and in fact (Roe v. Hogg, 7 Ir. C. L. R. 459). As to allowing a party unsuccessful on demurrer to withdraw his demurrer and take issue in fact, see M Eniry v. Waterford and Limerick Railway Co., 8 Ir. C. L. R. Ap. 61, and the notes to sect. 82, post.

(0) See Fox v. Broderick, 9 Ir. Jur. N. S. 17.

(p) It is a matter for the discretion of the Court or Judge whether it will Which issue direct the issue of law or fact to be first disposed of; but where the demurrer will be first goes to the whole cause of action or defence, it will generally direct the issue disposed of. in law to be first disposed of (Knight v. Lynch, 8 Ir. C. L. R. Ap. 67).

When the party demurring succeeds, he must, if he wishes to withdraw Withdrawing his replication, pay the other side the costs occasioned thereby (The London- replication. derry Commissioners v. Ballantine, 2 Ir. Jur. N. S. 367). Where a defendant pleaded and demurred, and was successful on demurrer, the Court refused to compel him to enter a judgment of nil capiat, so as to enable the plaintiff to bring error without trying the issues in fact (Hinton v. Acraman, 3 C. B. 736).

Where a defendant pleads and demurs, and is unsuccessful on demurrer, When error the Court has not, it would seem, power under this section to direct the issues may be of fact to stand over until after the demurrer is finally disposed of in the brought. Court of Error (Lumley v. Gye, 2 E. & B. 216).

several

60. The costs of every issue, whether of fact or law, shall Costs of follow the finding or judgment upon such issue, and be ad- issues.

Reg. Gen. H. T. 1853, r. 62.

Where issue composed of several parts.

Where issue amended.

Where jury discharged from finding.

Apportionment of costs.

Where plaintiff entitled to no costs.

judged to the successful party, whatever may be the result of the other issues (9); and the costs of all issues found for the defendant shall be deducted from the plaintiff's costs, if the defendant shall proceed with due diligence to tax the same; and the costs of all issues found for the plaintiff shall be deducted from the defendant's costs, if the plaintiff shall proceed with due diligence to tax the same (r); and if said costs so to be deducted shall not in either case be taxed in time for the purpose of deducting the same from the costs of the opposite party, they shall be separately recoverable by execution, when taxed and ascertained.

(9) When an issue, in fact, is single, although composed of several parts, and some of the parts are found in favour of the plaintiff, and some in favour of the defendant, the party who substantially succeeds upon the issue, i. e. who would be entitled to judgment if the decision of the case rested upon the issue in question, is entitled to the costs of so much of the issue as was found in his favour, and the other party is entitled to no costs in respect of the part of the issue found in his favour (Reynolds v. Harris, 28 L. J. C. P. 26; Foot v. Barker, 7 Ir. Jur. O. S. 47). In the latter case it seems to have been considered by Pennefather, B. that neither of the parties would be entitled to any costs. Reynolds v. Harris, however, is a clear authority that the successful party is entitled to the costs of the portion found in his favour.

Where, at the trial of an action of libel, the statement of the words in the summons and plaint and in the issue, was amended for the purpose of avoiding a variance, and the plaintiff succeeded on the issue so amended, he was held entitled, under the circumstances, to the costs of the issue so amended (Davis v. Reeves, 5 Ir. C. L. R. 533).

When the jury are discharged by consent from finding on certain issues, no costs of those issues will be allowed, nor the costs of a motion respecting them (King v. Promoter Assurance Co., 6 Ir. Jur. N. S. 373). But where the jury was discharged from finding on certain issues without the plaintiff's consent, and the defendant had a verdict upon the other issues and became entitled to the general costs, the plaintiff was held entitled to the costs of the issues which the jury were discharged from finding upon (Smyth v. Galbraith, 11 Ir. Jur. N. S. 359).

Where certain issues are found for the plaintiff, and certain others for the defendant, and a general verdict is given for the plaintiff, the rule in taxing the costs is, that the plaintiff gets all the costs which are not exclusively applicable to the issues on which he has failed, and the defendant is only entitled to the costs exclusively applicable to the issues on which he has succeeded, and there can be no apportionment unless the taxing officer can ascertain satisfactorily the costs applicable to the portion of the case on which he has succeeded (Morgan v. Gray, 10 Ir. Jur. N. S. 336; Guinea v. Allen, Ir. R. 1 C. L. 331; Leclerc v. Greene, Ir. R. 4 C. L. 388).

(r) In practice, both bills of costs are certified, and the deduction is made on the back of the certificate of the bill larger in amount.

Where the plaintiff obtains the general verdict, but is entitled to no costs, or half costs only, by the operation of section 243 of the present Act, or section

97 of the C. L. P. Act, 1856, the defendant is entitled to the full costs awarded him by the above section. The Court will, if necessary, order a party entitled to the costs of issues found in his favour to tax them, in order that they may be deducted fom the costs of the party entitled to the general costs, and if he refuses to do so, will make an order barring him from any future proceedings for the recovery of these costs (Nolan v. Flannery, 3 Ir. L. T. 313).

fictions

61. No useless form or fiction, such as express colour or Forms and special traverse, shall be used, nor shall it be necessary to abolished. allege any matter that need not be proved, regard being had to the substance and ground of the action or defence.

62. The venue in any personal action may, except as hereinafter stated, be laid in any county which the plaintiff thinks proper (r); and the name of such county shall be stated in the margin of the summons, and shall be taken to be the venue intended by the plaintiff (s); and no venue shall be stated in the body of the summons or in any subsequent pleading; provided it shall be lawful for the Court or a Judge to order such venue to be changed by an amendment of such summons and plaint to any other county or county of a city or town, in which the trial can be more conveniently or properly had, on special grounds only, and not merely because the cause of action accrued in any particular place or county (t).

(r) The venue in an action of ejectment is local. ever, change the venue in such an action as well (sect. 196, post).

Venue to be

stated only

in margin of and plaint.

summons

The Court may, how- Venue where as in a personal action local.

In the case of a suggestion of breaches the venue is the same, it would Suggestion of appear, as that stated in the original writ; and it can only be changed by breaches. an order of the Court (Castlereagh Union v. Carroll, 6 Ir. Jur. O. S. 314).

By sect. 151, post, the venue in a writ of revivor may be laid in any Writ of revicounty.

In actions where the venue was localized by Acts passed previous to the present Statute, it is now transitory, by virtue of the above section, although the Acts so localizing it are not enumerated among the Acts repealed by sect. 3, ante (Tate v. Matthew, 17 Ir. C. L. R. 641; S. C. in error, 1 Ir. L. T. 646).

vor.

(s) The omission of the venue is an irregularity for which the writ may Omission to be set aside. Where a plaintiff applies for leave to amend the omission, and state venue. offers the defendant proper terms, the latter will not get the costs of appearing upon the motion (Tuomey v. Formey, 7 Ir. Jur. O. S. 138).

If a wrong venue is stated in a local action, and the error appears upon the record, the objection may be taken on demurrer (Clayton v. Best, 8 L. T. N. S. 502). As to non-suiting the plaintiff at the trial, when the error does not appear upon the record, see Richardson v. Lochlin, 6 B. & S.

Changing

the venue.

Grounds on which venue changed.

Grounds of

777. And as to amending such an error, see Hanbury v. Jones, 15 Ir. C. L. R. 442; The Grocer's Co. v. Coll, 9 Ir. L. R. Ap. 8). In the latter case a judgment by default having been marked, and the plaintiff having applied for leave to issue an habere into the proper county, the application was

refused.

Where the venue was stated in the margin as "City of Dublin," the statement was held to be sufficient (Courtenay v. Blake, 8 Ir. C. L. R. Ap. 49). (t) Under this section the Court has power to order the venue in the action to be changed to any other county, or county of a city or town, in which the trial can be more conveniently or properly had; and accordingly applications to the Court for this purpose are very frequently made.

Inasmuch as the ruling of the Court in each case must largely depend on the particular circumstances involved, a reference to the cases only useful as showing the general principles acted on. At present, the tendency of the Courts is to change the venue to the county where the cause of action arose, as it generally happens that the trial can be had there much more conveniently and properly than elsewhere.

Either party may apply to change the venue; and the Court may, if it thinks fit, after so changing the venue, re-change it, either to the old venue or elsewhere (Atkinson v. Mills, 8 Ir. Jur. N. S. 153).

The grounds indicated in the section as being those upon which the Court may change the venue are twofold-1st, on the ground of convenience; 2nd, on the ground that the trial can be more properly had elsewhere.

As regards the ground of convenience, it was laid down in Morrissy v. convenience. Connell, 1 Ir. Jur. N. S. 174 (a case decided soon after the passing of the Act), that, in order to enable the Court to act, it must come to the conclusion affirmatively that a change of the venue would be productive of greater convenience; and where there is a balance of convenience or near it, that no change ought to be made. The party must show some sensible, reasonable, and absolute inconvenience. If the witnesses are numerous, and all resident in the county where the cause of action arose, or though they be not nume-rous, the parties are very poor, or if the trial is had in any particular place for purposes of oppression, it is the duty of the Court to change it (per Monahan, C. J.).

Residence

of witnesses.

Accordingly where all the witnesses reside in a county at a distance from that where the venue is laid, the Court will change the venue to the county where the witnesses reside (M'Dermott v. Jameson, 1 Ir. Jur. N.S. 51; M'Keown v. Stewart, ib. 127). But in such cases, if the plaintiff undertakes to bear all the additional expenses which may be incurred by reason of the trial being had where the venue was originally laid, the Court may refuse to interfere (Banks v. O'Sullivan, 2 Ir. Jur. N.S. 99). So also if the effect of the trial being had in the venue originally laid would be to bring away a number of railway or other public officials from the place where they are employed, and so cause inconvenience to the public, the Court will generally change the venue (Allen v. Cork and Bandon Railway Co., 1 Ir. Jur. N. S. 132; Attwood v. Ridley, 2 M. & G. 893). On the other hand, as the statute gives the plaintiff a prima facie right to lay the venue where he pleases, the Court will not disturb the venue as laid, merely because the cause of action arose elsewhere, whilst the balance of convenience remains undetermined, as for instance, where the pluintiff's witnesses reside in one county and the defendant's in another (O'Neill v. The Trustees of the Limerick Butter Market, 6 Ir. Jur. N. S. 134; Doyle v. Hammond, 6 Ir.