H. T. 1844. the costs of the cause either way without these words, and the object Exch of Pleas of their introduction must, therefore, be presumed to have been to FAIRBRO- บ. KINGSTON. include the costs of the reference and award. I find the rule upon the subject thus stated in Watson on Awards (a): "It seems to be "settled that, where a cause is referred, and it is provided that the "costs generally are to abide the event of the award, the term costs "includes the costs of the reference,' as well as the costs of the "cause." That is the very rule laid down in Holmes v. Brophy ; therefore, without going more into detail, it is enough to say, that this case is governed by that, and that the present motion must, therefore, be refused with costs. RICHARDS, B. In my opinion, Holmes v. Brophy rules this case. I think it is right that the party who ultimately succeeds should get the costs of the proceedings necessary to the establishing of his demand. LEFROY, B., concurred.* Green suggested that the costs of the motion ought not to be given, in consequence of the unsettled state of the law, and inasmuch as the decision in Burke v. Orsmby (b) sustained the application. Sed per Curiam. Where a party dissents from the decision of the officer, and fails, he must pay the costs. Motion refused with costs. (a) p. 151, 3rd. ed. (b) 3 Ir. Law Rep. 288. PENNEFATHER, B., absent. E. T. 1847. Common Pleas. ATKINSON v. NESBITT.* (Common Pleas.) TRESPASS de bonis asportatis.—The declaration was filed on the 2nd 66 The defendant pleaded to the whole declaration the general issue; to the first count a justification of the seizing, &c., as a distress for rent; and to the second count a similar plea. April 20, 22, 23. A judgment recovered in replevin is not a bar to an pass for the and detention same taking of goods which formed the action of tres subject of the replevin suit. At the Sittings after Term a cause having been called on for trial, the defendant filed a plea in the nature of a plea puis darrein continuance, alleging that the matter of defence arose "after the se The plaintiff joined issue on the first plea, and to the second and veral supposed third pleas replied non tenuit; concluding to the country. causes of action accrued;" contemporaneous with and Similiter. The record then proceeded thus :-"Therefore the in an affidavit, "Sheriff was commanded that he cause to come here on the 2nd "of November 1846, twelve, and soforth, by whom and soforth, "and who neither and soforth, to recognise and soforth, the same "day is given to the said parties here and soforth, at which day of in verification defendant statthe plea, ed that the matter of the plea had arisen within eight days days last past next before the pleading of the said plea. Held, that the plea was ill, there being no precise averment that the matter of defence had arisen after the last continuance; and Semble, that even if the averment in the affidavit had been sufficient, it could not be read in support of the plea. The entry on the record of the award of respite to the jury, amounts to a continuance. Continuances are from day to day, as well as from Term to Term. Trespass for taking, detaining and impounding goods, and that thereby the goods were lessened and damaged; the plea applied to the taking, &c., and left the lessening and damaging unanswered; plaintiff pleaded over without marking judgment of nil dicit for the part of the declaration uncovered by the plea. Held, that he had not thereby worked a discontinuance. Coram TORRENS, J., and JACKSON, J. (DOHERTY, C. J., and BALL, J. being absent throughout the Term, in consequence of indisposition.) Common Pleas. ATKINSON V. NESBITT. 66 E. T. 1847. " came here as well the said Sybella Atkinson by her said attorney as the said Allan Nesbitt in his own proper person; and the jury "aforesaid is further respited here until on Monday the 11th day "of January 1847, unless the Right Honorable John Doherty, "Chief Justice of our Common Bench" (or in his absence one of the other Judges of this Court according to their seniority), "shall come "before on Thursday the 26th day of November 1846, at the "Queen's Courts, Dublin, the same day is given to the said par"ties here and soforth, at which day came here as well the said "Sybella Atkinson by her said attorney as the said Allan Nesbitt in "his own proper person. And now, on this day, to wit on Saturday "the 28th day of November, in the tenth year of the reign "of Queen Victoria, and in the year of our lord 1846, before the "Right Honorable John Doherty, her Majesty's Chief Justice, assigned to hold pleas in her Majesty's Court of the Bench, according "to the form of the statute in such case made and provided, comes "the said Allan Nesbitt by Romney Foley his Counsel, and says that "the said Sybella Atkinson, as to the supposed trespasses in taking, "detaining and impounding the goods and chattels in the said first "count mentioned, ought not further to maintain her aforesaid "action thereof against him the said Allan Nesbitt; because, he says, "that after the several supposed causes of action in the said first "count of the said declaration mentioned accrued to the said "Sybella Atkinson, the said Sybella Atkinson heretofore, to wit, in "Easter Term in the ninth year of our Lady the Queen, before "the Queen herself at the Queen's Courts, impleaded the said Allan "Nesbitt in a certain plea of taking and unjustly detaining and "impounding the goods and chattels of the said Sybella Atkinson "against sureties and pledges, complaining that the said Allan "Nesbitt, on the 15th day of April 1846, in the parish of, &c., "took the goods and chattels of her the said Sybella Atkinson, and 'unjustly detained them against sureties and pledges, to the damage "of the said Sybella Atkinson of sixty pounds. That the said "Allan Nesbitt defended the wrong and injury when and soforth, "and avowed the said taking, detention and impounding; and that "the said Sybella Atkinson, by the judgment of the said Court on "the 24th day of November, in Michaelmas Term, in the tenth "year of the reign of our Lady the Queen, and in the year of our Lord aforesaid, recovered against the said Allan Nesbitt four "pounds for her damages, besides her costs, as by the record and the "proceedings thereof still remaining in the said Court of our said 66 Lady the Queen, before the Queen herself at the Queen's Courts "aforesaid, more fully and at large appears; which said judgment "still remains in full force and effect. That the said Sybella E. T. 1847. Atkinson, the plaintiff in said former suit, is the same Sybella "Atkinson who is the plaintiff in this suit, and that the said Allan "Nesbitt who was the defendant in said former suit is the same who "is defendant in this suit; and that the said goods and chattels and "the said taking and unjustly detaining in the said former suit, and "the said goods and chattels taking, detaining and impounding in "the said first count of the declaration in the present suit are the "same identical goods and chattels taking, detaining and impounding, and not different." Verification and prayer of judgment. This plea was, together with a similar plea to the second count, filed at Nisi Prius on the 28th of November 1846. The defendant upon the same day filed the affidavit following:-" Allan Nesbitt, of, &c., "attorney for the defendant in this action, maketh oath and saith the "pleas by him above pleaded and hereunto annexed, are true in substance and matter of fact, and that the matter thereof has arisen "within eight days last past next before the pleading of the said "pleas." To these two pleas the plaintiff demurred specially. Coates, for the demurrer. First, the plea is bad in point of form. A plea puis darrein continuance must show on the face of it that the matter of defence has arisen after the last continuance: 1 Chitty on Pleading, 5th ed., 698, and authorities there cited in note; Buller, N. P., 309 a; Ewer v. Moile (a); Com. Dig. tit. Abatement, I. 24a, 24b; Stephen on Pleading, 5th ed., 71. It must go farther than this. Time and place must be laid in this as in other pleas, and it must have the same certainty with other pleas. It is no good plea to say, puis darrein continuance such a thing happened, but it ought to be precise in the day: Bac. Ab. tit. Pleader, Q., p. 479. Had this plea averred either that the matter of defence arose since the last continuance, or that it arose upon a precise day, we might have traversed either fact. Secondly, as a plea in bar, it is bad in substance. A recovery in replevin is no defence to an action of trespass. The distinction between the different classes of actions should be scrupulously adhered to; replevin is brought by writ or plaint to have the goods replevied; when replevied, the plaintiff recovers damages for the taking; the damages in replevin are £4. 10s., the expenses of the replevin bond: Kernan v. Stephens, cited in Bowen v. Hornidge, Armstrong, Macartney and Ogle, R., 318; Peirse v. Charr (b); Common Pleas. ATKINSON บ. NESBITT. ย. NESBITT. E. T. 1847. Hawkins v. Warre (a). The observations of the Chief Justice and Common Pleas. Torrens, J., in French v. Taaffe (b), show that if substantial damages ATKINSON for a vexatious mode of taking be given in replevin, the verdict will be set aside (c). Sergeant Williams, in his note to 2 Saunders, 320, says:—“It is not usual to insert the price of the cattle or goods taken in a declaration in replevin ;" and afterwards, "the reason seems to be, because, if the plaintiff obtains a verdict, he is only "entitled to damages for the wrongful taking and costs, but not to "the value of the goods taken, as he is in trespass, for they were "delivered to him when replevied." The plaintiff in replevin in the detinet was entitled to recover as well the value of the goods, as damages for taking them; that action has become obsolete, and in the present action in the detinet he can only recover damages for the taking (d); Petree v. Duke (e); Bac. Ab. tit. Replevin, H.; Dalison Rep. 52. The observations of the Court in Fletcher v. Wilkins (f) are strong to show that replevin is merely a proceeding in rem―i. e. to have the goods again. Bacon (g) marks the dissimilarity of this action from those of detinue and trespass. In trespass, if a justification be pleaded, abuse may be replied-not so in replevin. Trespass lies frequently where replevin does not. Replevin lies only where goods have been taken out of the possession of the person who sues it out. [TORRENS, J. Before the time of Lord Redesdale the remedy by replevin was much abused in this country: Ex parte Chamberlayne (h); Shannon v. Shannon (i).]—The case (k) cited at Nisi Prius before Doherty, C. J., has no application here, it having been an action for an excessive distress, to which a recovery in replevin was held to be a bar. If this defence were pleadable at all, it should have been pleaded in abatement that the action in replevin was pending. Foley, in support of the plea. First, as to the omission of the averment puis darrein continuance. The proceedings in a suit should be regularly continued between the commencement and final judgment. Before declaration (a) 3 B. & C. 693; Furlong, L. & Ten. 876. (b) 3 Law Rec., N. S. 26. (c) Vide 3 Leon. 213, Ognell's case—“ The damages may be greater or less, according to the value of the cattle, and the circumstances of taking and delaying of them." This, most probably, applies to the action in the detinet. (d) 2 Wms. Saund. 347, b. (ƒ) 6 East, 285. (h) 1 Sch. & Lef. 320. (e) 2 Lut. 1150, 1151. (k) Phillips v. Berryman, 3 Doug. 286. |