Cambie v Barry

• Jurisdiction: Ireland
• Judgment Date: 23 November 1843
• Date: 23 November 1843
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

CAMBIE

and

BARRY.

See Ante, p. 79.

Jenkins v. PhillipsENR 9 Car. & P. 766.

Hemming v. ParryENR 6 Car. & P. 580.

Gladwell v. Steggall 8 Scott, 61.

Masterman v. JudsonENR 8 Bing. 224.

Doe d. Marriot v. EdwardsENR 1 M. & Rob. 319.

Jelf v. OrielENR 4 Car. & P. 22.

Perry v. WattsUNK 4 Scott, N. R. 366.

Parry v. Fairhaust 2 Cr. Mee. & Rosc. 195.

John v. CurrieENR 6 Car. & P. 618.

Bye v. Bower 1 Car. & Marsh. 262.

Regina v. HewinsENR 9 C. & P. 786.

Jeif v. OrielENR 4 Car. & P. 22.

Wright v. Esdaile 1 Cr. & Dix, C. C. 137.

Everingham v. Roundell 2 Mood. & Rob. 139.

Ryder v. MalbonENR 3 C. & P. 594.

Parkins v, CobbettENR 1 Car. & P. 282.

Evans v. sweetENRRy. & Mood. 83.

Doe d. Edwards v. LeachUNK 9 Dowl. P. C. 877.

Gurford v. BayleyUNK 4 Scott, N. R. 398.

Masterman v. Judson 1 M. & Scott, 367.

Smith v. BrandmanUNK 2 Scott, N. R. 539.

Duckworth v. HarrisonENR 5 M. & W. 429.

CASES AT LAW. 319 M. T. 1843. Queen'sBeneh. CAMBIE v. BARRY. (Queen's Bench.) CASE on a guarantee.-At the trial before Crampton, at Clonmel Summer Assizes 1843, the following facts were proved:- The plaintiff was Sub-sheriff of the county of Tipperary. A distress for rent due to Lord Kingston having been made on Patrick Hickey, he brought a replevin and proposed Martin Hickey and Patrick Russell as sureties in the replevin bond. The plaintiff having doubts as to the solvency of the tenant and his sureties, declined to replevy the goods. Upon which the defendant wrote the following letter to the plaintiff: " Sins-I request that you will take Martin Hickey and Patrick "Russell as sureties with the plaintiff in the replevin bond in this cause, "and grant a special warrant thereon, directed to Thomas Heffernan and "John Hickey, or either of them, and their assistants: and in consideraÂÂ" tion of your doing so, I hereby undertake and guarantee that the said "sureties are severally solvent persons, and good marks for the sums for "which they become bail and accountable to ye in said bond ; and in " case they, or either of them, should turn out not to be so, I hereby " undertake to indemnify and save you harmless of, from and against all " losses, damages, expenses and costs, which can, shall, or may arise unto "you, or either of you, in consequence of taking said persons as sureties "in said replevin bond.-Dated this 6th day of October 1840. "JAMES BARRY. " To Henry Prittie, Esq., High-sheriff, and Edward Lawler " Cambie, Esq., Under-sheriff of the county of Tipperary." The plaintiff thereupon replevied the goods, accepting the proposed sureties, and granting a warrant in the terms of the guarantee. The declaration contained three counts. The first count was decided by the Court of Exchequer Chamber to be bad.* The second count averred that the plaintiff, trusting to the promise so made by the defendant, did accept those persons as sureties, and granted his warrant to Thomas Heffernan and John Hickey (omitting the words "or either of them);" notwithstanding which, the defendant not performing that part of the contract which engaged on his part for the solvency of the sureties, and the sureties turning out to be insolvent, the plaintiff was obliged to pay to the Earl of Kingston the amount of the rent, to the plaintiff's damage, &c. The third count was immaterial. (a) See p. 2 T 320 CASES AT LAW. M. 1'. 1843. A notice to produce the warrant to the special bailiffs was served on Queen'sBenek. the defendant, and the warrant not having been produced at the trial, a CABBIE copy of it was given in evidence. V. BARRY. Mr. James Dwyer, for the defendant, applied to the learned Judge to nonsuit the plaintiff, on the ground of variance between the consideration as stated in the guarantee and as stated in the'declaration. The learned Judge allowed the record to be amended, and a verdict was had for the plaintiff, with liberty to enter it up on any count in the...