89 / 114
FEBRUARY, 1914] The Gazette of the Incorporated Law Society ol Ireland.
hand that more than two coun'sel Were reason
able or proper." These words are the only
means which, on the face of r. 41. enable the
party to get out of the disqualification which
the first part of the clause imposes. When
that certificate is not given I fail to see how
the first part is limited to the costs up to the
trial. The words are general, and apply to
all proceedings in " causes or matters," and
when the Judge gives his certificate he takes
the case out of the operation of the general
clause.
I do not, however, for a second give
the go-by to the very learned and weighty
reasons given by the Judges in the Court
below, but, giving them the utmost con
sideration and effect, I cannot merely from
personal inconvenience, or otherwise, give
the words of the rule any other construction
than what the words convey. Once the rule
is settled no hardship can arise. Everyone
will know where he is in the matter.
If
there is hardship the words can be altered.
I do not say positively or definitely that there
may not be, in exceptional cases, some way
out of the difficulty, but I do not for a moment
think that there is any half-way house.
The Lords Justices concurred.
(Reported
Irish Law Times Reports,
Vol.
XLVIIL, p. 18.)
CHANCERY DIVISION.
COUNTY COURT EQUITY APPEAL
(Before Ro'ss, J.)
TUITE AND ANOTHER
v.
CULLEN.
Nov. 13, 1913.—
Costs—Equity Civil Bill-
Mortgage debt—Subject-matter of suit—
"
Higher " or
"
lower " scale
—40 <£ 41
Vict., c.
56.
This suit was originally two separate equity
civil bills brought in Cavan County Court, to
raise the amount of two judgment mortgages
on defendant's farm for £72 19s. debt and
£5 16s. costs, and £112 "7s. 4d. debt and
£5 16s. costs respectively. The Court con
solidated the two suits, and both mortgages
were declared well charged on the lands.
The plaintiffs were declared entitled to their
costs in the same priority as their respective
demands, and said costs were ordered to be
taxed by the Clerk of the Crown and Peace or
Registrar, and the usual order for sale in
default of payment was made. Before the
costs were taxed defendant sold his farm out
of Court for £610. The costs were taxed by
the Registrar on the lower scale and certified
as follows :—" In Tuite's case £6 8s. 7d., and
in Reilly's case (the other Plaintiff) £7 7s 7d."
Plaintiffs' solicitor argued that the costs
should be taxed on the higher scale on the
basis that the subject-matter of the suit
amounted
to £610, and
the defendant's
solicitor contended the taxation should be on
the lower scale on the basis that the subject-
matter of the suit was £196 18s. 4d., the total
of the above sums. The Registrar decided
in favour of the contention of the defendant's
solicitor.
On
appeal
the County Court
Judge
affirmed
the decision
of
the Registrar
allowing the costs on the lower scale.
Ross, J., in delivering judgment, said the
question in the case was whether the costs
should be taxed on the " higher " or " lower "
scale.
The Registrar's decision that they
should be taxed on the " lower " scale was
confirmed by the County Court Judge, who
had the same discretion in respect of the
costs of an equity civil bill as a Judge of the
Chancery Division. Had the learned Judge
exercised that discretion no appeal would lie,
but his note showed he decided the matter on
the construction of the statute and rules, and
from that decision an appeal lay.
If the
subject-matter of the suit was the mortgage
debts the decision was right, but if it was the
purchase money of the farm it was wrong.
By s. 35 of the County Officers and Courts
(Ireland) Act of 1877 the Civil Bill Court was
empowered to exercise all the powers and
authority of the High Court of Chancery in
various suits, among others, all suits for
enforcing any mortgage charge upon lands
when the mortgage charge did not exceed in
amount £500, and the annual value of the
lands to which the suit relates does not exceed
£30.
In the order dealing with costs it is
stated that :
(I.) " In suits and proceedings
relating to personalty,
in suits and pro
ceedings relating to lands, and in suits and
proceeding relating partly to personalty and
partly to lands, where the value of such
personalty, or the value of such lands or the
aggregate value of such personalty and lands
shall respectively not exceed £200, there shall
be paid to counsel and solicitors the fees,
costs arid charges set forth in the column
headed ' lower scale.'