Administrator Kelly v Dolphin

• Jurisdiction: Ireland
• Judgment Date: 30 May 1839
• Date: 30 May 1839
• Court: Court of Common Pleas (Ireland)

COMMON PLEAS.

Administrator KELLY

and

DOLPHIN.

O'Brien v. Whitlaw 2 Law Rec. N. S. 148.

Hozier v. Powell 6 Law Rec. N. S. 288.

Walters v. MaceENR 2 B. & Al. 756.

Pet v. GreenENR 9 East. 188.

Wilson v. GilbertUNK 2 B. & P. 281.

Chetly v. WoodENR 2 Salk. 659.

Draper v. GarrettENR 2 B. & C. 2.

Purcell v. M'NamaraENR 9 East, 157.

PLEADING — NUL TIEL RECORD — SCIRE FACIAS — JUDGMENT — VARIANCE — SCIRE FACIAS TO REVIVE A JUDGMENT — PLEA, "NUL TIEL RECORD."

352 COMMON PLEAS. Thursday, May 30th. PLEADING-NUL TIEL RECORD-SCIRE FACIAS JUDGMENT-VARIANCE-MBE FACIAS TO REVIVE A JUDGMENT-PLEA, " NUL TIEL RECORD." Administrator KELLY V. DOLPHIN. Mr. J. D. FITZGERALD, in support of the plea.-The judgment hi this case commences thus :-" County of the city of Dublin, to wit. " H. D., of S., in the county of Galway, was attached to answer B. K., " of Loughrea, in said county." The writ of scire facias commences thus :-" To the sheriffs of the county of the city of Dublin : greetÂ" ing," &c. &c. Whereas B. K., of Loughrea, in said county." The words, " said county," in the judgment, by plain grammatical construcÂtion, refer to the last antecedent in the sentence, viz., "county of Galway," while the words, " said county," in the scire facias, as plainly aid obviously relate to the words, " county of the city of Dublin," and thus, in each case, forms part of the description of the conuzee of the original judgment. The variance then, relied upon by the defendant, is this-the scire facias purports to have been issued to revive a judgÂment obtained by B. K., of Loughrea, in the county of Dublin, and the judgment now produced appears to have been recovered by B. K., of Loughrea, in the county; of Galway. This is a fatal variance, and in a material point-in the description of the conuzee of the judgment : non constat, that B. K., mentioned in the scire facias, is the same person as the conuzee of the judgment. That such a variance is fatal is decided in the case of O'Brien v. Wliitlaw (a), where in the r ecord, the deÂfendant was entitled " gentleman :" in the scire facias he was described " esquire ;" and that was held, by the court of Queen's Bench, to be a fatal variance; and in a case decided in the court yesterday (b), the authority of that case was recognised and followed. The variance in the case decided here was in the description of the conuzee in the scire facias: he was described as " esquire :" in the record as " gentleman." In a late...