Fitzgerald v Rowan

• Jurisdiction: Ireland
• Judgment Date: 16 January 1855
• Date: 16 January 1855
• Court: Court of Common Pleas (Ireland)

Common Pleas.

FITZGERALD

and

ROWAN.

Cooke v. Lord CourtownUNK 6 Ir. Eq. Rep. 266.

Crisp v. BunburyENR 8 Bing. 394.

Courtown v. Goff 3 Ir. Jur. 182.

Lawson v. Hinds 1 H. & B. 599.

Edwards v. Lowndes 1 Ell. & Bl. 81.

Allen v. ImpettENR 8 Taunt 263.

Roper v. HollandENR 3 Ad. & El. 99.

Moore v. GarwoodENR 4 Exch. 68.

Dawson v. Wrench 18 L. J., N. S., Exch., 229.

Andrews v. Ellison 6 B. M. 199.

Reid v. Allan 19 L. J., N. S., Exch., 39.

Hassell v. The Merchant Trader's Ship Loan and Insurance AssociationENR 4 Exch. 525.

Pentland v. Gibson Al. & Nap. 310.

Nickoll v. GlennieENR 1 M. & S. 589.

Ex parte NorrishENR Jacob, 162.

Steward v. GreavesENR 10 M. & W. 711.

Chapman v. MilvainENR 5 Exch. 61.

Shipman v. HenbestENR 4 T. R. 109.

Emery v. DayUNK 4 Tyrw. 695.

Kill v. Hollister 1 Wils. 129.

Fleming v. Self 24 L. J, N. S., Chan. 29.

Lunch v. Fitzgerald 2 Ir. Jur. 268.

Baron v. HusbandENR 4 B. & Ad. 611.

The King v. Mildenhall Savngs BankENR 6 Ad. & El. 952.

The Queen v. Northwich Savings BankENR 9 Ad. & El. 729.

The King v. Witham Savings BankENR 1 Ad. & El. 321.

Pardoe v. PriceENR 16 M. & W. 451.

COMMON LAW REPORTS,_ OF CASES ARGUED AND DETERMINED IN 11iE COURTS OF QUEEN'S BENCH, COMMON PLEAS, EXCHEQUER, ertbrqutr ntbtr AND COURT OF CRIMINAL APPEAL. FITZGERALD v. ROWAN. H. T. 1855. CommonPleas. Jan. 16. THIS case was tried before the Lord- Chief Baron, at the Tralee The plaintiff was a depositor Summer Assizes 1854. to the amount of .61. 16s. It was an action brought by the plaintiff, as depositor in the 4d. in the Tra- Tralee Savings Bank, to recover the sum of 61. 16s. 4d., for lee Savings Bank, of which the defendant was the treasurer and one of the acting trustees. The Bank failed in 1848, the last day on which it was open being the 3rd of April in that year. Previously to the failure of the Bank, notices for withdrawal of deposits had been given by several depositors, and, amongst others, by the plaintiff. The plaintiff's notice was given on the 3rd of April, and was not payable until the 17th. There were notices of other depositors, to the amount of 700, payable on the 10th of April ; and there were other notices payable on the 17th. Between the 10th and 17th of April, the defendant, as treasurer, received 900. In an action, brought by the plaintiff against the defendant, for money had and received to the plaintiff's use, it was Held, that there was no appropriation in law of any part of the 900 to the plaintiff's use, and that therefore the defendant was not liable, as treasurer, on the ground of specific appropriation. Held also, that under the Savings Banks Acts (9 G. 4, c. 92, and 7 & 8 Vic., c. 83), the defendant was not liable as trustee, he not having been guilty of any wilful neglect or default. Held also, that the funds of the Bank having been vested in the defendant and other trustees, to the use of the institution and depositors, an action for money had and received to the plaintiff's use did not lie. Held also, that the plaintiff's only remedy was, by proceeding under the arbitraÂÂtion clauses of the Savings Bank Acts (9 G. 4, c. 92, s. 4, and 7 & 8 Vic., c. 83, s. 14.) 2 COMMON LAW REPORTS. principal and interest due to him on the 3rd of April 1848. The defendant had been treasurer and one of the trustees of the Bank; the Bank had closed on the 4th of April 1848, owing to a defalcaÂÂtion in its funds, which was in no way attributed to the defendant, nor was there any allegation of default or neglect on his part. The plaint stated that the defendant was indebted to the plaintiff in 61. 16s. 4d., due to the plaintiff, for principal and interest, on certain deposits made in his name in the late Tralee Savings Bank; which sum was, pursuant to the rules of the Bank, duly noticed for withdrawal on the 3rd of April 1848, and afterwards received by the defendant for the plaintiff, and by the defendant since withheld and kept from the plaintiff. There was also a count for money had and received by the defendant to the plaintiff's use, and a count on an account stated. The defendant, by his pleas, traversed each count separately, and then pleaded a second defence, to which a demurrer, pending at the time of the trial, had been taken ; and pleaded further, that a dispute arose after said 3rd of April 1848, and in said year, between the trustees and managers of the said Savings Bank and the said plaintiff, respecting said sum, and that the matter in dispute was referred in writing to John Tidd Pratt, Esq., who duly and legally made his award in writing, and awarded that the plaintiff had no claim on the trustees and managers in respect of said sum. The issues to be tried were :-First, whether the 61...