Croghan v Maffett

• Jurisdiction: Ireland
• Judgment Date: 21 November 1890
• Docket Number: (1889 — M. No. 384.)
• Date: 21 November 1890
• Court: Exchequer Division (Ireland)

Ex. Div.

(1889 — M. No. 384.)

CROGHAN

and

MAFFETT.

Pitt v. SnowdenENR 3 Atk. 750.

Bennett v. RobinsENR 5 C. & P. 379.

Jolly v. ArbuthnotENR 4 De G. & J. 224.

Morton v. WoodsELR L. R. 3 Q. B. 658; on appeal—L. R. 4 Q. B. 294.

Prince v. NicholsonENR 5 Taunt. 333, 337.

Distress — 9 & 10 Vict. c. 111 — 23 & 24 Vict. c. 145 — Receiver — Mortgagor.

Ex. Div. CROGHAN v. MA TTETT. 1890. Nov. 20, 21. (1889-M. No. 384.) Distress-9 4- 10 Vict. c. 111-23 (S- 24 Viet c. 145-Receiver-Mortgagor. A distress is rendered unlawful by the omission to state in the notice of distraint the name of the person to whom the rent is payable, as authorizing the distress. A receiver appointed by deed, executed by mortgagees under the statutory powers contained in the statute 23 & 24 Viet. c. 145, signed in his own name as receiver, a warrant of distraint. The distress effected under the authority of such warrant was held to be unlawful by reason of the omission to state the name of the mortgagor in the statutory notice. CAUSE SHOWN against entering judgment for the plaintiff. The action was brought to recover £500 damages for trespass to the plaintiff's lands of Woodlands, in the county of Carlow; and trover and conversion by the defendant of two horses, one mule, and 126 sheep, the property of the plaintiff ; and for £112 17s. 4d., money had and received by the defendant for the plaintiff's use, being money realized on the sale by the defendant of the said live stock so converted by him. The defendant by his defence traversed all the allegations in the statement of claim, and pleaded-(1) that the plaintiff was tenant from year to year of the said lands to his father E. Croghan ; (2) that by deed, dated the 19th October, 1878, E. Croghan, for the consideration therein, mortgaged his interest in said lands to the West of England Fire and Life Assurance Co., and that the principal sum secured by said indenture was unpaid, and that said deed contained a proviso that the power of appointÂing a receiver, conferred by 23 & 24 Vict. c. 145, should be exerÂciseable by the said Company only, and that, on the 16th October, 1884, the said Company duly appointed the defendant receiver over the said lands, who had since continued as such receiver ; (3) that on the 1st November, 1888, one year's rent of said lands Vox,. XXVI.] Q. B. & EX. DIVISIONS. 665 became due by the plaintiff to the said E. Croghan ; and. on the Ex. Div. 28th December, 1888, the same rent was still unpaid ; whereupon 1890. the defendant, as such receiver, duly made a written warrant to CRO:HAN distrain, signed by him as such receiver, directing one R Foran, MAFFErr. the bailiff therein named, to distrain the plaintiff, which said warÂrant was duly dated, signed, and made, in accordance with the provisions of the statute in that behalf made and provided ; (4) that on the 2nd January, 1889, the said bailiff duly and proÂperly distrained the plaintiff's said property on the said lands then and there standing ; (5) that the said property so distrained as aforesaid not having been redeemed Within eight days after the distraint, the said bailiff duly posted in the nearest market-town a notice of sale of the said property by public auction ; and (6) that the acts complained of were done after the passing of the Act of 9 & 10 Viet. e. 111, and consisted of irregularities after the makÂing of the said distraint, and that the plaintiff suffered no special damage whatever. The defendant then pleaded, lest contrary to what he believed and. contended he was under any liability to the plaintiff, he brought into Court £5 5s., and said that same was sufficient to satisfy the plaintiff's demand. The action was tried before Mr. Justice Gibson and a jury of the city of Dublin in the Easter Sittings, 1890. The plaintiff was examined, and proved that he originally held the lands of WoodÂlands, as tenant from year to year to his father E. Croghan, at the yearly...