Charles Smith v William Holbrooke and John Butler

• Jurisdiction: Ireland
• Judgment Date: 14 January 1846
• Date: 14 January 1846
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

CHARLES SMITH

and

WILLIAM HOLBROOKE and JOHN BUTLER.

Whitmore v. GreeneENR 13 M & W. 110

Meredith v. FlasxmanENR 5 C. & P. 99.

Aitken v. Bedwell M & Mal. 68.

Smith v. ShawENR 10 B. & C. 277.

Coppinger v. Bradley 5 Ir. Law Rep. 257.

Hudson v. M'Allen 4 Ir. Law Rep. 438; S. C. L. & T. 299.

Kelcey v. MinterENR 1 Bing. N. C. 721.

Wilson v. Tumman 6 M. & Gr.236.

Jarmain v. Hooper 22 Law Jour. C. P. 63.

Elsee v. SmithUNK 1 D. & Ry. 97.

H. T. 1846. Queen'sBench. CHARLES SMITH WILLIAM HOLBROOKE and JOHN BUTLER. TRESPASS de bons asportatis, to which the defendants separately pleaded the general issue. It appeared at the trial before Pennefather, C. J., at the Sittings after Trinity Term 1845, that a person of the name of Sholdice had passed a promissory note to the defendant Holbrooke, and that Holbrooke having made an affidavit of the debt in the Lord Mayor's Court, thereupon a city attachment issued against him on the 27th of February 1844, the day the note became due. It also appeared that Sholdice being possessed of a house and furniture, had sold his interest therein early in the month of February 1844, to the plaintiff, and that the defendant Butler, the City Marshal, seized the furniture under the attachment and sold it by auction and paid the money over to Holbrooke. There was no evidence to connect Holbrooke with the transaction, and it did not appear that he had given any indemnity to Butler. The jury found for the plaintiff against both defendants. An order nisi having been obtained to set aside this verdict Billing, with whom was Macdonogh, for the defendant HolÂbrooke, now moved to make this order absolute. An action of trespass did not lie against Holbrooke, he not having interfered at all in the proceedings of Butler. The execution creditor is not liable unless he intermeddle in the execution : Whitmore v. Greene (a). In Meredith v. Flaxman (b), which was an action of trespass, Lord Lyndhurst told the jury, "if " a man employing an officer chooses to attend with the officer, who " seizes in his presence the goods of a third person, under the " execution he has sued out, he makes himself responsible for the " officer's act ; but if he is not there, and does not personally "interfere in the matter, he is not liable :" Aitken v. Bedwell(e). West, for the defendant Butler. The defendant Butler is an officer coming within the meaning (a) 13 M. & W. 110. (b) 5 C. & P. 99, (e) M. & Mal. 68, of the...