23 / 114
JUNE, 1910]
The Gazette of the Incorporated Law Society of Ireland.
123
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