Delacour v Murphy

• Jurisdiction: Ireland
• Judgment Date: 25 November 1848
• Date: 25 November 1848
• Court: Exchequer of Pleas (Ireland)

Exch.of Pleas.

DELACOUR

and

MURPHY.

Stratton v. Codd 9 Ir. Law Rep. 1.

Hurst and others v. JenningsENR 5 B. & C. 650.

Heath v. BrindleyENR 2 Ad. & El 365

Morris v. JonesENRUNK 2 B. & C. 242; S. C. 3 D. & Ry. 603.

Gorman v. Hinks Batty, 527.

Roles v. RosewellENR 5 T. R. 538.

Hardy v. BernENR 5 T. R. 636.

Roles v. Rosewell 5 T. Rep. 538.

Drage v. Brand 2 Wil. 337.

Goodwin v. Crowle Cowp. 357.

Hurst v. JenningsENR 8 Dow. & Ry. 424; S. C. 5 B. & C. 650.

8 Dow. & Ry. 431.

Morris v. JonesENR 2 B. & C. 232; S. C. 3 Dow. & Ry. 603.

2 B. & Cres. 243. 26 L

Hiscocks v. KempENR 5 Nev. & Man. 113; S. C. 3 Ad. & El. 676; 1 Har. & W. 384.

ENR 5 Nev. & Man. 116; S. C. 3 Ad. & El. 679.

Magdalenƒ€™s College case, 11 Co. 73.

CASES AT LAW. 195 disapprove of the verdict, and I am of opinion that it ought not to M. T. 1848. Exch.ofPleas. be disturbed. NOTHERSELL I have entered into a more full examination of the authorities v. than I should have done, had not the case of Clarke v. Sawyer, NEALE. recently decided in the Court of Queen's Bench, and reported in 10 Irish Law Rep. 530, been pressed in argument, as a decision in support of the proposition that the question of probable cause may be properly left to the jury. I am not satisfied that the Court in that case intended so to decide. If they did, I could not concur in that view of the law, which I conceive to be opposed to the rule so recently and so clearly declared by the Court of Error in Panton v. Williams. I may observe, that in the case of Clarke v. Sawyer, so far as can be collected from the report, neither Panton v. WilÂÂliams, nor any one of several cases in which it was referred to and recognised, and which were published before the argument in the Court of Queen's Bench, was brought under the consideration of that Court. Conditional order discharged. DELACOUR v. MURPHY. Nov. 24, 25. Tans was a motion to set aside the execution which had issued upon A plaintiff, aithout having a judgment obtained upon a bond and warrant of attorney, passed by filed a sug- gestion of the defendant as a deputy barony cess collector with his sureties to breaches, issu ed execution the plaintiff as high constable of the barony in question. The bond upon a judg was in the usual form, conditioned that the defendant should well ment obtained upon a bond and warrant passed by a deputy barony cess collector, the warrant containing a proviosifonat thateuyp, ou any breach of the condition of the bond it should be lawful " for the plaintiff, his heirs, executors, administrators or assigns to issue one or more execution or executions upon the judgment or judgments to be entered upon these presents, for so much money as shall remain uncollected or unpaid to the plaintiff by the defendant, without filing a suggestion of breaches, or taking any further or other legal proceedings to obtain such execution or executions further than the judgment or the judgments to be entered up as aforesaid." The Court set the execution aside, holding that the provisions of the statute 9 W. 3. c.10, s. 8, requiring in such case an assignment of breaches, were compulsory and could not be waived by agreement. 196 CASES AT LAW. and faithfully collect all such money as he should by the plaintiff's warrant be authorised and required from time to time to collect in the said barony, and to pay the same to the plaintiff weekly and every week as he should collect the same, and complete each and every of such collections and pay the full amount thereof, and of each of them to the plaintiff; at &c., one week before the first day of each ensuing Assizes. The warrant of attorney, among other stipuÂÂlations, provided that it might be lawful "to and for the plaintiff, " his heirs, executors, administrators or assigns, to issue one or more "execution or executions upon the judgment or judgments to be " entered upon these presents for so much money as shall remain " uncollected or unpaid to the plaintiff by the defendants, without "fling a suggestion of breaches, or taking any other or further legal "proceedings to obtain such execution or executions further than "the judgment or the judgments to be entered up as aforesaid." The plaintiff having, without filing a suggestion of breaches, issued execution upon a judgment, obtained upon the above bond and warrant Joshua Clarke now moved on behalf of the defendant to set aside the execution and subsequent proceedings. It is quite settled that a judgment entered on a bond and warrant of attorney is within the 9 W. 3, c. 10, s. 8, and breaches must be suggested: Stratton v. Codd (a). This statute has been held to be peremptory and remedial, and passed for the benefit of the defendÂÂant.-[LEFnoy, B. The object of the statute was to enable the obligee to issue executions toties quoties, and if you issue one execution under the proviso in the warrant, the judgment would be satisfied.]-The case of Hurst and others v. Jennings (6) is in point with the present. It has been also held that parties cannot by agreement dispense with the legal obligation to issue a scire facias Heath v. Brindley (c). The statute was passed for the benefit of defendants, as previously the practice was to issue execution for the entire amount of the judgment. (a) 9 Ir. Law Rep. 1. (b) 5 B. & C. 65O (c) 2 Ad. & El. 365 CASES AT LAW. 197 Leaky, contra. This statute is for the benefit of plaintiffs, to enable them to issue successive executions according as there are breaches. The clause in question is frequently inserted in warrants of attorney : 9 Bythewood's Conveyancing, p. 567. Hurst v. Jennings is not in point, the authority to dispense with a scire facias being by deed and not by warrant. Besides, the contrary was decided in Morris v. Jones (a) ; Gorman v. Hinks (b). M. T. 1848. Exch.ofPleas. DELACOUR V. MURPHY. Clarke, in reply. It is quite settled that the statute of W. 3 is compulsory, though the word may is used instead of shall : Roles v. Rosewell (c); Hardy v. Bern (d).-[PENNEFATHER, B. The...