M. T. 1859. " and damages, which they have sustained by reason of the delay Common Pleas. "of execution of the said judgment of reversal, on pretext of pro66 secuting the writ of error aforesaid in the House of Parliament "aforesaid; and hereupon the record aforesaid, &c., and also the pro

M'MAHON บ. LEONARD.

66

66

Iceedings aforesaid had, in the same Court of Parliament, in the premises, are remitted, by the same Court of Parliament, to the Exchequer Chamber in that part of the United Kingdom of Great "Britain and Ireland called Ireland, to the end that execution may "be had thereon."

It further appeared upon the transcript, that upon a subsequent day a petition was presented by the plaintiff, praying that the House might amend their judgment, by striking out so much thereof as awarded to the defendants the above sum of £543. 1s. 4d.; but that their Lordships refused to comply with the prayer of that petition. A transcript of the judgment was accordingly remitted to the Court of Exchequer Chamber in Ireland, and subsequently to the Court of Common Pleas. A writ of ca. sa. having issued from the Court of Common Pleas, to enforce payment of the above sum, this application was made to set it aside, upon the grounds (amongst others) that the order of the House of Lords was founded upon error in fact; that it was an interlocutory order, upon which execution could not issue, and that there was no judgment of the Court of Common Pleas existing to ground such writ of execution.

Macdonogh, in support of the application.

The House of Lords is not bound by its own judgment, when founded upon error in fact, nor is an Inferior Court bound to follow such judgment: Paul v. Joel (a), citing Bright v. Hutton (b); and, therefore, the order of the House of Lords, for payment of these costs to the defendants, purporting to be founded upon the statute in such case made and provided, viz., 3 H. 7, c. 10 (2), extended to Ireland by Poyning's Law, is founded upon error in fact, that statute not applying to the case then before the House of Lords, and being only applicable when "delay of execu(b) 3 H. of Lords, 341.

(a) 3 Exch. 432.

tion "

no

Common Pleas.

M'MAHON

v. LEONARD.

was sustained by the plaintiff. The defendants could suffer M. T. 1859. delay of execution" in the present case, being in possession of no judgment upon which execution could issue: Sutherland v. Willis (a). He also cited 13 Car. 2 (stat. 2), s. 10; Baring v. Christie (b); 8 & 9 G. 3, c. 13, s. 2; Williams v. Smith (c); Moon v. Durden (d); Lickbarrow v. Mason (e); The Bank of Ireland v. The Trustees of Evans' Charities (f); the Common Law Procedure Act (1856), s. 49; Stanford v. Robinson (g); Herbert's case (h); Cassidy v. Steward (i); Bac. Abr., Execution, p. 399 (E).

Whiteside and Joy, contra, cited Harrison v. Stickney (k); Tommey v. White (1), citing M'Gavin v. Steward (m); the Common Law Procedure Act (1853), s. 176; Long v. Barrett (n); the Common Law Procedure Act (1856), s. 47; Doe v. Amey (o); Arch. Prac., pp. 517, 622; M'Mahon v. Leonard (p).

Macdonogh, in reply, referred to Arch. Prac. (by Chitty), p. 119; Anderson v. Fitzgerald (q); Trimleston v. Kemmis (r); 2 Tidd, p. 1180; 3 & 4 Vic., c. 105, s. 27; Erdy v. Martin (s); Harvey v. Francis (t); Tidd's Forms, p. 546.

Cur. ad. vult.

MONAHAN, C. J.

In this case an application has been made by the plaintiff to set aside a writ of ca. sa. that issued out of this Court for the sum of £543. ls. 4d. We have before us, on the present motion, the writ

Nov. 25.

(n) 7 Ir. Com. Law Rep. 439; S. C., in Error, 8 Ir. Com, Law Rep. 331.

(0) 8 M. & W. 565.

(q) 4 H. of Lords, 516.

(s) 8 Dowl. P. C. 343.

(p) 6 H. of Lords, 1010.

(r) 9 Cl. & Fin. 770.

(t) 7 Dowl. P. C. 194.

Common Pleas.

M'MAHON

v. LEONARD.

M. T. 1859. of execution itself; and it appears that, pending the notice of motion, Mr. M'Mahon paid the amount to the Sheriff, under protest; but the fact of payment in that way does not prevent the question being now raised, as to whether the execution should be set aside. The writ of execution recites in substance a judgment of the House of Lords; and the short history of the case is this:-Mr. M'Mahon, as plaintiff in an action, sought to recover damages against the defendants, for disturbing him in his office of weighmaster in the town of Clones. The case was tried before me in this Court, and the plaintiff, Mr. M'Mahon, obtained a verdict. Exceptions were taken to some points ruled by me at the trial, and were argued in this Court. We overruled them on argument, and pronounced judgment in favour of Mr. M'Mahon. The defendants, however, proceeded by writ of error in the Court of Exchequer Chamber in this country, then consisting of twelve Judges, not, as at present, of seven; and the result was, that the majority of that Court being of opinion that some of the exceptions to my direction at the trial were well founded, reversed the judgment of this Court, and allowed some two or three of those exceptions; and, according to the practice of the Court of Exchequer Chamber, they remitted the record to this Court, to award a writ of venire de novo. Mr. M'Mahon then brought a writ of error in the House of Lords, endeavouring to uphold the judgment of the Common Pleas; and it appears, on the record before us, that, after these proceedings were sent to the House of Lords, the defendants applied to the House of Lords to quash the writ of error, upon the grounds that no writ of error lay to Parliament, from a judgment awarding a venire de novo. That motion appears to have been discussed before a Committee of the House of Lords, which decided that Mr. M'Mahon had a right to bring his writ of error, and ordered the defendants to join in error. The case was afterwards argued at great length in the House of Lords. Their Lordships affirmed the judgment of the Exchequer Chamber, with costs, which were taxed by the proper officer of the House of Lords to the sum of £543. 1s. 4d. It is for this sum that the execution sought to be set aside has issued; and the question now is, whether we should set aside the execution? From an

inspection of the records of our own Court, we find that when the proceedings in the House of Lords were remitted to the Exchequer Chamber, and from the Exchequer Chamber to this Court, that the proceedings so remitted were entered on our own record not as a judgment of this Court, but of the House of Lords; and the curial part of the judgment so entered is as follows:-"It is "ordered and adjudged, by the Lords Spiritual and Temporal in "Parliament assembled, that the said judgment given in the said "Court of Exchequer Chamber in Ireland, reversing the said judg"ment given in the said Court of Common Pleas in Ireland, be, "and the same is hereby, affirmed, and that the record be remitted, "to the end that such proceeding may be had thereupon as if no "such writ of error had been brought into this House; and it is "further ordered that the said plaintiff in error do pay, or cause "to be paid, to the said defendants in error, the costs incurred in

66

respect of the said writ of error, including the costs of the said "petition of the defendants in error, which was argued by one "Counsel of a side on the 1st day of July 1856; the amount of "such costs to be certified by the Clerk of the Parliament." And on a subsequent occasion, after the costs were taxed, a further order or judgment was entered, in the following words :-"And it is "further considered, by the same Court of Parliament, that the said "Sir Thomas Barrett Leonard, Baronet, Nicholas Ellis, Henry "Whiteside and Thomas Irwin, do recover against the said John "M'Mahon £543. 1s. 4d., by the same Court of Parliament afore"said adjudged to the said Sir Thomas Barrett Leonard, Bart., "Nicholas Ellis, Henry Whiteside and Robert Irwin, and with "their assent, according to the form of the statute in such case "made and provided, for their costs, charges and damages, which "they have sustained, by reason of the delay of execution of the "said judgment of reversal, on pretext of prosecuting the writ of "error aforesaid; and also the proceedings aforesaid, had in the

66

same Court of Parliament, in the premises, are remitted by the

same Court of Parliament to the Exchequer Chamber of that part "of the United Kingdom of Great Britain and Ireland called Ire"land, to the end that execution may be had thereupon."

M. T. 1859.
Common Pleas.

M'MAHON

บ.

LEONARD.

M. T. 1859.
Common Pleas.

M'MAHON

v.

LEONARD.

Mr. Macdonogh, for the plaintiff Mr. M'Mahon, has argued at considerable length, in the first instance, that the House of Lords had no power or authority to award those costs; that they not being in their nature interlocutory, neither the House of Lords nor any other Court have any authority to award such costs, except when authorised by Act of Parliament, and that none of the Acts giving costs apply to a case like the present, of a writ of error from an award of a venire de novo, and, therefore, that this Court should not have issued an execution founded on such a judgment; and he further argued that it was apparent, on the proceedings, that the House of Lords had made some mistake, and that they were under the impression that it was the plaintiff in the cause who had succeeded, and to whom they were awarding costs. It occurs to me that there can be no foundation for this latter suggestion. Though the language of the judgment is not very accurate, still it is impossible to doubt that what was intended was, that the plaintiff, Mr. M'Mahon, who failed in his writ of error, should pay the costs of the proceedings; and we find, among the proceedings in the House of Lords, that the question whether the costs should be awarded to the defendants was expressly brought under the consideration of a Committee of the House, to whom the matter was referred, and which Committee were of opinion that the costs should be awarded. And, with respect to the question whether the Committee and the House had authority to award these costs, as they have done, I can only say that, on a motion such as this, I disclaim all authority to inquire into the matter. The House of Lords being the Supreme Court of Appeal, we being the Inferior Court, it is not for us to inquire whether they were right or not in doing what they have done. Our only inquiry must be what they in fact did; and this inquiry we have no difficulty in answering, by saying that they clearly and distinctly adjudged that the defendants should recover, and the plaintiff pay, the sum in question, being the amount of the taxed costs of the proceedings in the House of Lords. Another question argued by plaintiff's Counsel was, whether these costs, even though ultimately payable by the plaintiff, could be recovered immediately, and whether the levying of them should not be stayed