Bentley v Hastings

• Jurisdiction: Ireland
• Judgment Date: 14 November 1843
• Date: 14 November 1843
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

BENTLEY

and

HASTINGS.

Sideway v. Hay 3 B. & Cr. 23.

Jeffery v. M'TaggartENR 6 M. & S. 126.

Donatty v. BarclayENR 8 T. R. 152.

Dundalk Railway Company v. Tapster 1 G. & D. 657; S. C. 4 Ad. & El. N. S. 667.

Daly v. Blomfield 5 Ir. Law Rep. 65.

In re PerrinUNK 4 Ir. Eq. Rep. 362.

Caithness v. Murphy Sm. & B. 1.

Master v. MillerENR 4 T. R. 340.

Breverton's case Dyer. 30. d.

Rex v. TwineENR Cro. Jac. 179.

Short v. HubbarENR 2 Bing. 359.

De La Chaumotte v. Bank of EnglandENR 2 B. & Ad. 385.

Earl of Shaftsbury v. RussellENR 1 B. & C. 671.

Stanley v. WhartonENR 9 Price, 303.

Roe v. Darley 1 H. & B. 445.

Cornforth v. Lowcock 1 M. & Ry. 321.

Timms v. Williams 2 Gale & D. 621.

Sideway v. HayENR 3 B. & C. 22.

M. T. 1843. Queen' sEench. NEALE, V. M'DONALD. 170 CASES AT LAW. on foot for the purpose of screening a property. The obtaining a judg- ment by fraud is a complete defence ; the maintaining it by fraud is equally a complete defence-the one not depending on the other : if this be not duplicity I know not what is. Upon these grounds, without giving any decision as to other objections which have been argued, I am of opinion this demurrer must be allowed. BURTON, J., concurred. CnAansTow, J., concurred. PERRIN, J. concurred.-The first plea is bad, not as much on the ground that it tenders an immaterial issue, as that it traverses a matter not alleged, and that has been assigned as a special cause. It has been shown that unnecessary matter may possibly be of importance ; and this being a special demurrer, must therefore be allowed. Demurrer allowed. BENTLEY v. HASTINGS. Nov. 14. The assignee of a civil bill replevin bond cannot sue upon it in the Superior Courts. SembleÂÂWhere, by a statute, a chose in action may be assigned, and the proÂÂperty therein is vested by the assignment in the assignee, the latter has not thereby a general right to sue for and recover same ; but be is bound DEBT for 8. 10s. on a civil bill replevin bond, entered into by the defendant and two sureties, to the Sheriff, and assigned by the Sheriff to the plaintiff. General demurrer and joinder in demurrer. Mr. Napier, in support of the demurrer.-The question for the decision of the Court is, whether the assignee of a civil bill replevin bond can sue on it in the Superior Courts. The jurisdiction of the Civil Bill Courts in replevin suits was created by the 6 & 7 W. 4, c. 75; and the object of the Legislature was to furnish a cheap remedy in cases of distress for rent. Section eight provides that where a party, whose goods have been distrained for rent, shall dispute the validity of the distress, and the amount of the rent shall not exceed 50, the Clerk of the Peace shall make an order to the Sheriff, who is to replevy the to pursue the remedy, if any, which the statute provides. CASES AT LAW. 171 goods, on a bond being entered into in double the amount of the property distrained. Section nine provides that the bond shall be in a certain form ; and section thirteen provides for the assignment of the bond, and gives the assignee the power to sue in the Civil Bill Court, without regard to the amount of the penalty. This shows that •the Legislature never contemplated that the assignee should sue in the Superior Courts. The present suit exemplifies this. The bond was inÂÂtended to be a security not only for the costs in the replevin suit, but also for the costs of the action on the bond itself. In this case the bond is for 8. 10s., an amount altogether insufficient to cover the costs of an action in the Superior Courts. It would be a fraud on the sureties of the bond to make them subject to an action in the Superior Courts for a sum of 8. 10s., when they could not take advantage of a general equitable defence which is given by the Civil Bill Court, nor of the special relief which is afforded by section fifteen ; but would be obliged to defend the action at law, and go into a Court of Equity for an injunction, if there was only an equitable defence to rely on. Although the statute gives the assignee the property in the bond by the assignment, it does not, therefore, entitle him to sue on it in his own name : Sideway v. Hay (a). In that case Lord Tenterden refers to Jeffery v. 1111TagÂÂgart (b). In all statutes which direct the assignment of a bond, a provision is made enabling the assignee to sue in his own name-in the Insolvent Acts, in the Replevin Acts, and in the case of the assignment of bail bonds : Donatty v. Barclay (c). In the statute a power is given to the assignee to sue in the Civil Bill Court. That impliedly excludes him from every other Court. The section which creates the right gives the remedy ; and the whole of it, taken together, shows the intention of the Legislature : Dundalk Railway Company v. Tapster (d). Both the language and spirit of the Act show that this action is not maintainable. Mr. Charles Haig, and Mr. ilfacdonogh, Q. C., contra.-This is a pure question of law, and is to be decided without regard to the inconvenience which may arise in this particular case. Besides the civil bill jurisdiction in replevin extends to 50; so in that way, bonds of considerable amount may be sued on in the superior Courts. The thirteenth section, which has been so much...