The Gazette 1910-11

123

The Gazette of the Incorporated Law Society of Ireland.

JUNE, 1910]

in his opinion the appeal must be allowed. He did not know that the law on which he based his judgment was in any way con tradicted by the judgments of the learned Judges in the Court below. Both the learned Judges recognised the distinction between an action on the case and an action of trespass and recognised that in an action on the case of maliciously issuing out process the allegation of malice was an allegation of fact and must be proved, and that if it were not proved the action could not be main tained. And they both recognised that, if the action was not an action on the case but an action of trespass, malice was not essential to the maintenance of an action of trespass. He was not sure how they came to decide this case on the basis that the action could not succeed without an allegation and proof of malice. The plaint showed that this was an action of trespass ; it was partly an action for maliciously issuing out process and partly an action of trespass. The learned County Court Judge in terms recognised this, and in delivering judgment treated the case as an action of trespass. It was, therefore, un necessary to give any evidence of malice, and there seemed to him to be no ground for saying that the judgment of the County Court Judge was wrong. It was suggested that at the time when the writ of fi. fa. was issued the judgment which had been obtained against the plaintiff was still in force, not withstanding the fact that the total amount of the debt ordered to be paid by the judgment had been paid and a receipt given. It was said that, notwithstanding that, there was an existing judgment which would support the writ of execution and which continued in force. Commonsense, apart from authority, told one that, when the total amount ordered by a judgment to be paid was paid, the judgment ought not any longer to be of any force or effect whatsoever. It had been argued that a writ of execution was good as long as the judgment was not in law set aside. It was therefore convenient to know that there was authority for the proposition that, when the total amount of a judgment debt was paid the judgment ceased to be of any force or effect whatever. The Lord Justice read the following sentence from the summing-up of Baron Parke in Tebbutt v. Holt (I. C. and K., 280,

at p. 289) :—" The law also is, if the debt and costs are paid or satisfied, the judgment is at an end." And in Bullen and Leake's Precedents of Pleadings (3rd ed.), at. p. 353, was the following :—" An action will not lie for an arrest on final process upon a sub sisting unsatisfied judgment ; but if the party arrested can get the judgment set aside for irregularity or on any other ground, or can show that the judgment was satisfied by payment or otherwise before the arrest, he may then' maintain an action ; the arrest in such case would in general support an action of trespass." The authorities on which the defendants sought to rely were all instances of actions on the case for maliciously issuing out process. No authority had been cited justifying the proposition that a judgment which had been satisfied by payment still existed as a judgment in force for the purpose of issuing a writ of execution. The writ of execution in this case was void ab initio, and the defendants were therefore liable in trespass. Lord Justice Fletcher Moulton and Lord Justice Farwell delivered judgment to the same effect. (Reported The Times Law Reports, Vol. xxvi., page 409). CHANCERY DIVISION (ENGLAND). (Before Swinfen Eady, J.) In re Ward, Bowie and Co. Aprit 14, 1910.— Costs—Taxation after pay ment — Payment under protest, 6 and 1 Vie., c. 73, s. 38 ; and 12 and 13 Vie., cap. 53, s. 3 (Ireland). G., a client, purchased the equity of redemption in certain properties in 1906, and employed W. to act for him in the matter. In July, 1909, W., as a Solicitor for three mortgagees, gave G. notice to pay off the mortgages. It was arranged, after some delay, that the mortgages should be paid off and reconveyances taken, after which fresh mortgages were made. Completion was fixed for the 28th January, and W. delivered his bill on the 21st January. G. paid the bill " under protest," and now applied to tax the bill. The Solicitors for one of the mortgagees got an abstract of title to one property from W., and paid £10 8s. 4d. It was said that W., as Solicitor for G., when he purchased in