Macdougall v Paterson
| Jurisdiction | England & Wales |
| Judgment Date | 05 December 1851 |
| Date | 05 December 1851 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 672
IN THE COURT OF COMMON PLEAS
S. C. 21 L. J. C. P. 27; 15 Jur. 1108; 6 Ex. 337(n). See Palmer v. Richards, 1851, 6 Ex. 335, 337 (n); Julius v. Bishop of Oxford, 1879-80, 4 Q. B. D. 259; 5 App. Cas. 224.
[755] macdougall v. paterson. Dec. 5, 1851. [S. C. 21 L. J. C. P. 27; 15 Jur. 1108 ; 6 Ex. 337 (to). See Palmer v. Richards, 1851, 6 Ex. 335, 337(); Julius v. Bishop of Oxford, 1879-80, 4 Q. B. D. 259; 5 App. Cas. 224.] Where a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application.-The word "may," in the 13th section of the county-courts extension act, 13 & 14 Viet. c. 61,-which provides, that, in certain cases, the court or a judge at chambers may by rule or order direct that the plaintiff shall recover his costs,- is not used to give a discretion, but to confer a power upon the court and judges : and the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises.- Where a man, having his permanent residence at one place, has a lodging, for a temporary purpose only, at another place,-he does not " dwell" at the latter place, within the meaning of the 128th section of the county-court act, 9 & 10 Viet. c. 95, so as to oust the jurisdiction of the superior courts.-Where a plaintiff has two places of abode, one within, the other beyond twenty miles from the defendant,-quaere whether the superior courts have not concurrent jurisdiction with the county-court. This was an action upon a promissory note for 91. 6s. 6d. (by payee against maker), tried as an undefended cause before the sheriff of London, on the 23rd of July last, when a verdict was taken for the plaintiff for the amount of the note and interest. On the 1st of August, the plaintiff took out a summons calling upon the defendant, under the 13th section of the county-court extension act, 13 & 14 Viet. c. 61, to shew cause why the master should not tax and allow to the plaintiff his costs of the action, on the ground that the plaintiff and defendant dwelt more than twenty miles from each other. The application was founded upon the affidavit of the plaintiff and his attorney. The former, who described himself as "of Inverness, in the kingdom of Scotland, but at present stopping at 19 B, Golden Square, in the county of Middlesex, woollen-draper," deposed, that, at the time of the commencement of the action, he dwelt and carried on his business more than twenty miles from the places where the defendant dwelt and carried on his business; that he, the plaintiff, at that time dwelt and carried on his business, and still dwells and carries on his business, at Inverness, [756] in Scotland, and not elsewhere, and that the defendant dwelt in the county of (a) It is now understood to be a settled rule, in all the courts, that costs are to be awarded to the successful party. L1C. B. 757. MACDOTJGALL V. PATERSON 673 Surrey, and carried on his business in the county of Middlesex; that he, the plaintiff, usually came to London every summer, for the purposes of his business, but had never had any permanent dwelling or place of business there, but takes lodgings and a showroom for patterns whilst he remains in London, at such part of the town as he may deem most suitable; and that the debt for the recovery of which the action was brought was for goods, the orders for a portion of which were received by the plaintiff at Inverness, and the whole sent to the defendant from that place. Cause was shewn against this summons, upon affidavit setting forth the superior advantages, in point of economy and despatch, of proceedings in the county-court; and stating, that the plaintiff dwelt and carried on his business of a woollen-draper, at the commencement, and during the progress, and at the conclusion of this action, at No. 19 B Golden Square, in the county of Middlesex; that the plaintiff so dwelt and carried on his business at that place every year, and had continued from before and at the commencement, and during the progress, and at the conclusion of this action, to dwell and carry on his said business there; that No. 19 B Golden Square, is within twenty miles of the dwelling-place, and within twenty miles of the place of business of the defendant, that is to say, within three miles of the dwelling-place, and within one mile of the place of business of the defendant, respectively, and that No. 19 Golden Square is within a few hundred yards of the Westminster County-Court of Middlesex. Patteson, J., before whom the summons was heard, dismissed the application, indorsing thereon,-" Summons dismissed. I think there was concurrent jurisdiction, but no sufficient reason given why plaintiff sued in the superior court." [757] Badeley, on a former day in this term, obtained a rule nisi to the same effect. The learned judge, in deciding as he did, acted upon the opinions expressed by the courts of Exchequer and Queen's Bench, in Jones v. Harrison (6 Exch. 328, 2 L. M. & P. 257) and Latham v. Spedding (20 Law Journ. N. S., Q. B. 302), that the 13th section is discretionary only. These decisions, however, have not been received with satisfaction : the judges of this court have been understood to hold that "may" ought to be construed " shall." [Williams, J. I never so decided ; I merely intimated an opinion to that effect to my Brother Martin.] It is not matter of discretion: if there is concurrent jurisdiction, the judge is bound to allow the plaintiff his costs. The 2nd section of the 13 & 14 Viet. c. 61, enacts that that act and the 9 & 10 Viet. e. 95, and 12 & 13 Viet. c. 101, shall be read and construed as one act, as if the several provisions in those acts contained, not inconsistent with the provisions of that act, were repeated and re-enacted therein. It is necessary, therefore, to refer back to the 128th section of the 9 & 10 Viet. c. 95, which enacted " that all actions and proceedings which before the passing of that act might have been brought in any of Her Majesty's superior courts of record, where the plaintiff dwells more than twenty miles from the defendant, or where the cause of action did not arise wholly or in some material point within the jurisdiction of the court within which the defendant dwells or carries on his business at the time of the action brought, or where any officer of the county-court shall be a party, except in respect to any claim to any goods and chattels taken in execution of the process of the court, or the proceeds or value thereof, may be brought and determined in any such superior court, at the election of the party suing or proceeding, as if that act had not been passed." Then [758] comes the 13th section of the 13 & 14 Viet. c. 61, which enacts that, "if in any such action (in the superior court), whether there be a verdict in such action or not, the plaintiff shall make it appear to the satisfaction of the court in which such action was brought, or to the satisfaction of a judge at chambers, upon summons, that the said action was brought for a cause in which concurrent jurisdiction is given to the superior courts by the 128th section of the 9 & 10 Viet. c. 95, or for which no plaint could have been entered in any such county-court, or that the- said cause was removed from a county-court by certiorari, then and in any of such cases the court in which the said action is brought, or the said judge at chambers, may thereupon, by rule or order, direct that the plaintiff shall recover his costs ; and thereupon the plaintiff shall have the same judgment to recover his costs that he would have had if that act had not been passed." Regard being had to the 2nd section, it is impossible, giving effect, as we are bound if possible to do, to every word we read, to hold the legislature to have meant to give the plaintiff, in the cases specified, the election to avail himself of either jurisdiction, and then to mulct him of costs for exercising it. The plaintiff's right to costs under the statute of Gloucester (6 Edw. 1, c. 1) is not to be taken away by implication and C. P. xvi.-22...
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