factory to the parties concerned; and when I bear in mind that possibly the Sheriff, whose duty it was to return on the special panel forty-eight names of persons of approved intelligence, may possibly, in the exercise of his sound discretion, have returned a preponderance of one religious or political party or another, I think the Court may interfere, without casting any imputation on his impartiality. It would indeed be a mischievous state of things if the Sheriff were on every occasion to be balancing between religious or political parties, and that he should be obliged to insert on his panel twenty-four of one religion, simply because he had already inserted twenty-four of another. If religion or politics are not to be looked to, and if probity and intelligence are to be the guides of the Sheriff in the selection of his panel, it is not to be wondered at that, in almost every case, there should be a preponderance of either one party or the other; and therefore it is that I think this motion is not to be decided by imputations on the Sheriff or his panel. I decide it altogether upon a consideration of the nature of the case which is to be tried; and I think that if, by the order I shall make, we cannot obtain perfect impartiality, we shall, at all events, give the parties what the law has allowed them to have in certain cases, by the authority of the Court, namely, the selection of their own tribunal. Now a political case, such as I have mentioned, is just the case in which that may safely be done-I would almost say, at the call of either party. As to the objection on the score of delay, I presume the CHIEF JUSTICE would not have directed the motion to stand over, had he considered that objection to be insuperable. He will, of course, take care that a day shall be appointed for the trial which will meet the demands of justice, and the convenience of the parties. With respect to the witnesses, I think that if any of the persons who are now in attendance shall be detained in town, in consequence of the granting of this application, it is but reasonable that the extra expenses so incurred shall be paid by the defendant.

1859. Consol. Cham.

ข.

FEGAN.

HARGREAVE v. MEADE.

(Common Pleas.)

MACDONOGH moved the Court to set aside defences.

Lynch, contra.

E. T. 1859.
Common Pleas.

May 10.

No rule" pronounced upon a motion prevents a re

same motion.

A motion, virtually the same as the present, was moved in this newal of the Court upon the 7th of April, and the Court said "No rule" on the motion. The application cannot, therefore, be renewed.

E. T. 1859.

Common Pleas.

Macdonogh.

Though the Court pronounces “No rule,” that is not a refusal of HARGREAVE the application, being made without prejudice.

v.. MEADE.

MONAHAN, C. J.

A motion upon which "No rule" has been pronounced cannot be renewed.

Counsel subsequently mentioned to the Court that it was the practice in the Courts of Queen's Bench and Exchequer to allow a matter upon which "No rule" had been pronounced to be again brought before the Court.*

MONAHAN, C. J.

If we held that a

The practice of this Court is otherwise. question upon which "No rule" had been pronounced might be again discussed, the number of motions upon one question might be infinite.

M. T. 1859.
Nov. 11.

* See De Montmorency v. Pope (2 Ir. Jur. 213).

GALLON v. ARMSTRONG.*

Court will not permit the defendant's

general affida

be contradicted

Upon an appli- SEEDS, for the defendant, moved that the plaintiff be restrained from cation for sefurther proceeding in this case until he had given security for costs. curity for costs (the plaintiff The motion came on before the Full Court on a former day; on residing out of the jurisdic- which occasion, on the application of the plaintiff, it was adjourned tion), the for a week, in order that the plaintiff might file an affidavit in reply. The affidavit of the defendant, upon which the motion was grounded, stated that the defendant had a just and valid defence on the merits vit of merits to to the action, The summons and plaint contained three counts, by the plaintiff. namely, for goods bargained and sold, money paid, and an account stated. The defendant's affidavit also stated that the plaintiff ant may make described himself as of Leeds, Yorkshire, which is out of the jurissuch applica diction of this Court.-[KEOGH, J. What point is involved in this fence filed, motion?]-That the defence was filed before this motion came to be provided he notice heard. It will be necessary, in order to meet this objection, to refer that his defence to the decision of this Court in the case of Eyre v. Sparks (a), which may be taken to be the leading case on this point. In that case, MONAHAN, C. J., says: "It appears that the defendant has pleaded, but we do not think that that alters the case."

The defend

tion after de

serves

is filed without

prejudice to such application.

(a) 3 Ir. Com. Law Rep. 542.

Coram KEOGH, J.

Common Pleas.

GALLON

v.

ARMSTRONG

In this case the plaint was issued on the 20th of September; it M. T. 1859. was served shortly after, but was not filed until the 27th of October. On the 24th of October, a preliminary notice was served, requiring security for costs. That notice not being replied to, notice of the present motion was served on the 2nd of November, and the defence filed on the 3rd of November. At the time of serving the defence, the plaintiff was also served with a notice, stating that the defendant served the defence without prejudice to proceeding with this motion. The affidavit filed by the plaintiff, to oppose this motion, denied the facts stated in the defendant's affidavit, in which the latter stated certain matters which would, if proved, entitle him to a verdict.

In Eyre v. Sparks, already referred to, the Court lays it down most distinctly, that "the Court would not try the case upon "affidavits, and that if the party swore generally to the merits, the "Court would hold that sufficient." If the affidavit had stated that the plaintiff had a place of business in this country, it would be an entirely different question; but, to introduce a discussion upon the points raised by the plaintiff's affidavit would be merely constituting this Court the jury to decide the facts at issue between the parties.

M'Kenna, for the plaintiff, resisted the motion, on the ground that the application was too late, and that the merits to which the defendant had sworn were displaced, and contradicted by the affidavit sworn on behalf of the plaintiff. The case of Eyre v. Sparks is not the strong authority contended for, nor does it apply to this case. There the question was, whether the defendant had made a sufficient affidavit of merits; but, in this case, we have the affidavit of the plaintiff contradicting that of the defendant.

KEOGH, J.

It appears that there are certain facts in dispute between the parties, and these facts I do not intend to decide upon affidavits. Such is not the practice of this Court.

The filing of a defence is no answer to an application of this nature, when notice is served to the effect that the defence has been filed without prejudice to such application. I will therefore make the order for security for costs. The costs of the motion to be costs in the cause.

Rule accordingly.

M. T. 1859.
Common Pleas.

Nov. 22.

WILSON v. KEOGH.

Where an ac- PHILIP KEOGH applied in this case to set aside the judgment which

tion of con

brought for a

sum less than £20, both parties residing within the

tract had been had been marked against the defendant, as far as the same awarded costs to the plaintiff, or to order that the plaintiff refund to the defendant the amount of costs which the defendant had paid him. This was an action brought to recover the sum of £5, by the plainsame civil-bill tiff, and a consent for judgment had been given, with stay of jurisdiction, execution. The plaintiff, who was a coal merchant, had two offices and judgment was obtained in Dublin, where he transacted his business daily, but he lived at on confession, Clontarf. The defendant, who was an attorney's clerk, resided in were taxed, Hardwicke-street. The costs had been taxed in July last, under the ordinary summons, and upon which occasion the defendant had not pearing before appeared. Defendant subsequently paid the costs, under pressure of officer, or ob- an execution. He cited Darcy v. Hastings (a).

and the costs

without the

defendant ap

the Taxing

jecting thereto,

and were after

wards paid by

Anderson, contra, contended that the objection ought to have the defendant, been taken before the Taxing-officer, and that the present appli

under pressure

of execution, cation was too late.

the Court subsequently, on

the motion of the defendant, ordered the

costs to be

plaintiff.

MONAHAN, C. J.

I had some doubts as to this case at first; but we are now of

That

refunded to the opinion that the plaintiff must refund the sum, upon the grounds that this was not a matter to be dealt with by the Taxing-officer. The only doubt upon my mind was, whether or not the defendant should have made his objection before the Taxing-officer. doubt has been removed; and the order which the Court will make is, that the plaintiff do refund to the defendant the amount of these costs. We do not, however, set aside the judgment: so that no action can be brought; and there are to be no costs of the present motion.

Rule accordingly.

(a) Common Pleas, Michaelmas Term 1859 (not yet reported).

INDEX.