Crosbie v Murphy

• Jurisdiction: Ireland
• Judgment Date: 31 May 1858
• Date: 31 May 1858
• Court: Queen's Bench Division (Ireland)

Queen's Bench

CROSBIE

and

MURPHY

Stevenson v. Rowand 2 Dow. & C. 104, 119.

Hart v. FrameENR 6 Cl. & Fin. 193.

p. 210.

Pitt v. YaldenENR 4 Burr. 2060, 2061.

Baikie v. ChandlessENR 3 Camp. 17.

Baikie v. Chandless ENR 3 Camp. 19.

Purves v. Landell 12 Cl. & F. 91.

Elkington v. HollandENR 9 M. & W. 659, 661.

Godefroy v. DaltonENR 6 Bing. 460, 468.

Stevenson v. Rowand Supra.

Hart v. Frame Supra.

Warburton v. Ivie 1 H. & Br. 648.

Stevenson v. Rowand (2 Dow. & Cl. 104).

COMMON LAW REPORTS. 301 nothing would be effectuated by our sending the case again down T. T. 1858. Qs Bench to trial, the proper course will -be to direct the verdict to be enteredueen' up for the defendant. BEM:WAN v. KINSELLA. CRAMPTON, J. I felt much disposed, at one stage of this case, after hearing what was urged by Counsel at the Bar, to think that the most satisfactory course would be to send this case to a new trial; because I thought that, in point of law, the correct view of the case was not submitted to the jury by the learned Judge. In such a case as the present, there could be no presumption but that of an actual conveyance, whereas it would seem as if the learned Judge thought that the jury might arrive at a presumption of law as giving title to the plaintiff. Upon further consideration, however, I concur in the view that it would be useless to send the case to a new trial, inasmuch as the plaintiff has no means of making out such a title as he has put upon the record by summons and plaint. Upon the whole, therefore, I am of opinion, that the proper course will be to direct a verdict to be entered for the defendant. • CROSBIE v. MURPHY.* May 31. ACTION against an attorney, for negligence.-Defence ; that the In order to create a valid defendant used due and proper care and skill in the discharge of judgment mortgage, un der the 13 & 14 Vie., e. 29, the affidavit of registry must accurately comply with the requisitions of the 6th sedtion of that Act. Therefore, where the judgment debtor, who was an hotel and shop-keeper, was described in the affidavit merely as " Bridget Curran, of Killorghan, in the county of Kerry, widow "-Held, insufficient to create a judgment mortgage. Held also, that the defect was not remedied by the fact that the description in the affidavit of registry strictly followed the judgment. A mere error of judgment, or a mistake upon a point of law, or in the construeÂtion of a difficult Act of Parliament, is not such negligence as renders an attorney liable to his client for a loss sustained in consequence of such error or mistake ; in such cases, regard must be had to all the circumstances of the transaction, and if they be such as show gross or culpable neglect on the part of the attorney, he will be responsible. * PERRIN, J., absents. 302 COMMON LAW REPORTS. his duty as such attorney. Upon the trial, before Greene, B., at the Spring Assizes 1858, at Tralee, it appeared that the plaintiff had agreed to lend a sum of £300 to Bridget Curran, widow, who carried on the business of an hotel and shop-keeper in the town of Killorgban ; and that, with that view, the plaintiff, accompanied by a friend, who had negotiated the loan, went to the office of the defendant (who it appeared was also attorney for Bridget Curran), for the purpose of having a bond, with warrant of attorney, exÂecuted as security for the loan. It having been suggested that, under the 13 & 14 Vic., c. 29, a judgment could be made as effecÂtual a security upon land as a mortgage, the plaintiff directed the defendant to do the best he could, the object of all parties being, that no avoidable expense should be imposed on Bridget Curran. The suggestion as to the judgment mortgage having been adopted, the defendant requested that a description of the parties should be left with his managing clerk, who was about to fill up the bond and warrant ; and a description was accordingly dictated by the plainÂtiff's friend, which was inserted in the bond and judgment, and in the affidavit registered pursuant to the 13 & 14 Vie., c. 29, s. 6; and was as follows :--.44Bridget Curran, of Killorghan, in the county of Kerry, widow." Bridget Curran having subsequently become a bankrupt, the plaintiff claimed in the bankruptcy to be a creditor by judgment mortgage ; but Plunket, J., considering that the deÂscription of Bridget Curran, in the affidavit of registry, as " widow," without any further description of her trade or calling, was not a sufficient compliance with the 13 & 14 Vic., c. 29, s. 6, to render the judgment a charge upon the lands of the conusor, held that the plaintiff was not entitled to prove in the bankruptcy as a mortgagee for the amount of his claim, and therefore levelled it with the other debts. The bankrupt's estate being insufficient to pay more than £159. 6s. 6d. on foot of the £300 lent by the plaintiff to the bankÂrupt, this action was brought for the balance so lost, as alleged, through the negligence of the defendant. The learned Judge diÂrected the jury, that the description of Bridget Curran, in the affidavit of registry, was not sufficient ; that it was the defendant's duty to have told the plaintiff, and the parties who came with him COMMON LAW REPORTS. 303 to the defendant's office, that the description given by themselves of the parties to the proposed security was not sufficient ; that it was not an answer to the action that the defendant had called for...