Reid v Ashby and Another
| Jurisdiction | England & Wales |
| Judgment Date | 08 June 1853 |
| Date | 08 June 1853 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 1456
IN THE COURT OF COMMON PLEAS AND EXCHEQUER CHAMBER
[897] eeid v. ashby and another. June 8, 1853. The first count charged the defendants with injury to the plaintiff's party-wall, by excavating by the side of it, and raising and overloading it. The defendants pleaded,-first, as to the raising and overloading, not guilty by statute,-secondly, as to the residue, payment into court of 301. The plaintiff joined issue on the first plea, and replied damages ultra to the second. At the trial, a verdict was taken for the plaintiff subject to an award, but no power was reserved to the arbitrator to certify for costs, under the 3 & 4 Viet. c. 24, s. 2. The arbitratar having directed a verdict to be entered for the plaintiff on the first issue, damages 20s., and for the defendant on the second issue :-Held that the plaintiff was deprived of costs, by the 3 & 4-Viet. c. 24, s. 2, having "recovered by the verdict of a jury less damages than 40s." The first count of the declaration charged the defendants with having carelessly, negligently, wrongfully, and improperly dug under a party-wall which supported the plaintiff's house; and also with having carelessly, negligently, wrongfully, and improperly raised and overloaded the party-wall, by reason whereof the plaintiff's premises were injured. There was a second count charging an obstruction by the defendants of the plaintiff's antient lights. The defendants, as to so much of the first count as charged the improperly raising and overloading the wall, pleaded not guilty by statute; secondly, as to the residue of the grievances in the first count, payment into court of 301.; thirdly, as to the second count, payment into court of 201. The plaintiff joined issue on the first plea, pleaded damages ultra to the second plea, and took the 201. out of court in satisfaction of the damages claimed by the second count. The cause came on for trial before Jervis, C. J., at the Sittings in London after Trinity Term, 1852, when a verdict was taken for the plaintiff, damages 20001., subject to an award, with power to the arbitrator to direct a verdict'to be entered for the plaintiff or the defendants, to amend the record, and to certify, that the cause was fit and proper to be tried before a judge of the superior court, and that it was a fit case to be tried by a special jury; but no power was reserved to him to certify under [898] the 3 & 4 Viet. c. 24; the costs of the action to abide the event of the award, and the costs of the reference and award to be in the discretion of the arbitrator. The arbitrator by his award directed a verdict to be entered for the plaintiff on the first issue, damages, 20s., and for the defendant on the second issue. A verdict was thereupon entered on the postea for the plaintiff, damages 20s., costs 40s. An order was afterwards obtained by the defendants from Maule, J., at chambers, to amend the postea, by striking out the award oi costs. The master, on taxation, having refused to allow the plaintiff any costs of the trial, on the ground that he had recovered "by verdict of a jury, less damages than 40s.," Honyman, in Easter Term last, obtainted a rule calling upon the defendants to shew cause why the taxation should not be reviewed, and why (if necessary) the order of Maule, J., should not be rescinded, and the award set aside, or referred back to the arbitrator, on the ground that he had omitted to award anything to the plaintiff for his costs on the first issue. Hugh Hill and Thrupp, on a subsequent day in the same term, shewed cause. The real question is, whether or not this case is within the 3 & 4 Viet. c. 24, s. 2. The 1st section of that act repealed the 43 Eliz. c. 6, so far as it related to costs in actions of trespass or trespass on the case, and also so much of the 22 & 23 Car. 2, c. 9, as related to costs in personal actions : and the second section enacts, "that, if 13,C. B.899, BEID V. ASHBY 1457 the plaintiff in any action of trespass, or of trespass on the case, brought or to be brought in any of Her Majesty's courts at Westminster, &c., shall recover by the verdict of a jury less damages than 40s., such plaintiff shall not be entitled to...
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