Leggo v Young and Another
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 1856 |
| Date | 31 January 1856 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 1190
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 25 L. J. C. P. 176.
[549] leggo v. young and another. Jan. 31, 1856. [S. C. 25 L. J. C. P. 176.] The court will not entertain a second application upon grounds which might and ought to have been brought forward upon the former occasion. By an order of reference under the compulsory power given by the Common Law Procedure Act, 1854,17 & 18 Viet. c. 125, s ,3, "a cause" was referred, nothing being said about costs. The umpire, by his award, " adjudged that the defendants did pay to the plaintiff 1591. Os; 9d. in full of all demands in the above-mentioned action," but said nothing about costs. , The master having declined to tax the plaintiffs costs upon this award, an application was made in Trinity Term last for- the direction of the court, but the court declined to direct the master to tax the costs : Leggo v. Towng, ante, vol. xvi., p. 626. T. Chambers (with whom was: Jacobs):now moved for a rule calling upon the defendants to shew cause why the order of reference should not be amended, by making the costs abide the event of: the award. [Jervis, C, J. Surely we cannot do that.] It was done in Bell v. Postlethwaite, 1 Jurist, N.: S. 1167, where Lord Campbell said : " The master was right in refusing to tax the costs of the plaintiff, because the rule for referring the cause is silent respecting them. But we have power to reform the rule, that it may operate according to our own intention and the intention of the parties. We may insert a clause providing for the costs nunc pro tune, and then the costs will follow according to the just and ordinary course of the law." [Jervis, C. J. This is substantially a renewal of the former application, upon amended materials, which cannot be : Orchard ~v._Moxsy, 2.Ellis. & B. 206. The matter was very much discussed in this court in Tilt. v. Dickson, ante, vol. iv., p. 736, where all the principal authorities were cited (a).] This [550] application is a totally different one from the former, [Jervis, C. J. Substantially it is the same. You seek to amend the order, (a) See Russell v. Hartley, 7 Ad. & E. 522, n., 5 N. & M. 415 - The Queen v. The Manchester and Leeds Railway Company, 8 Ad. ,& E. 413, 1 P. & D. 164; The King v. Orde, 8 Ad. & E. 420; Sherry v. Oke,, 3 Dowl. P. C. 349 ; The Queen v. The Inhabitants of Barton, 9 Dowl. P. C. 1021; Shaw v. PerUn, 1 Dowl. N. S. 306 ; Exparte Hasleham, 1 Dowl. N. S. 792; Levy v. Coyle, 2 Dowl. N. S. 932; Dixon v. Oliphant, 15 M. & W. 152; The Queen v. The Great Western Railway Company, 1 D. & L. 874; Jones v. Hay, 1 M. & G. 390, 1 Scott, N. E. 399; The Queen v. Pickles, 3 Q. B. 599. 17C.B.551. MICHAEL V. TBEDWIN 1191 so as to enable you to get the costs. Horn, contra. The application to Cresswell, J., at Chambers, was, to amend the order of reference: vide ante, vol. xvi., p. 628. Jervis, C. J. In that case, the whole matter ought to have been brought before the court in last Trinity Term. We clearly cannot go into the matter again. You had it in your contemplation, before you came to the court on that occasion, to amend the order. With full knowledge of the facts, and all the materials before you, you abstain from asking us then to amend ; and now you seek to vex the defendant with a second application. It cannot be allowed.] The court may amend the order, under the 96th section of the Common Law Procedure A-Ct, 1854, 17 & 18 Viet. c. 125. [Jervis, C. J. That is open to the same answer. Cresswell, J. What does it-signify whether the statute gives the power to amend, or the power were inherent in the court before the statute passed 1 This is not a technical objection,] Byles, Serjt., who (with Horn) was instructed to shew cause in the first instance, observed that the case of Bell^ v. Postlethwaite was obviously distinguishable, inasmuch as. there the arbitrator had by his award given, the plaintiff costs, and, but for the amendment of the order, the award would have been bad; whereas, here, if the court granted the application, it would make the award bad. Per Curiam. Eule refused.
English Reports Citation: 139 E.R. 904
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 24 L. J. C. P. 200. Followed, Wimshurst v. Barrow Shipbuilding Company, 1877, 2 Q. B. D. 338.
[626] leggo v. young and another. June 11, 1855. [S. C. 24 L. J. C. P. 200. Followed, Wimshwrst v. Barrow Shipbuilding Company, 1877, 2 Q. B D. 338.] By an order made under the compulsory power given by the Common Law Procedure Act, 1854, 17 & 18 Viet. c. 125, s. 3, "a cause" was referred, nothing being said about costs. The umpire, by his award, " adjudged that the defendants should pay to the plaintiff 1591. Os. 9d. in full of all demands in the above mentioned action." The award was accompanied by a note from the umpire to the plaintiff, on a separate piece of paper, but not annexed to the award, in which the umpire expressed an opinion that the costs of the action, and of the reference and award, should be paid by the defendants, and that he would have so ordered, but that...
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