HENRY HARE, Executor of NATHANIEL TRUEMAN, v JAMES Mƒ€™GAHEY, WM. Mƒ€™GAHEY and JOHN Mƒ€™GAHEY

JurisdictionIreland
Judgment Date30 April 1850
Date30 April 1850
CourtQueen's Bench Division (Ireland)

Queenƒ€™s Bench

HENRY HARE, Executor of NATHANIEL TRUEMAN,
and
JAMES Mƒ€™GAHEY, WM. Mƒ€™GAHEY and JOHN Mƒ€™GAHEY.

Thompson v. Hodgson A. & E. 135.

Harvey v. JohnstonENR 6 C. B. 295.

Parks v. Edge 1 Cr. & Mees. 429.

Beckett v. DuttonENR 7 M. & W. 157.

Boys v. AnsellENR 5 Bing. N. C. 390; S. C. 7 Scott, 364.

Gregory and another v. Duff 18 Law Jour., N. S., Q. B. 213.

David v. Preece 5 Q. B. 440.

Boucher v. Murray 6 Q. B. 362.

Hemming v. ParryENR 6 Car. & P. 580.

Jelf v. OrielENR 4 Car. & P. 22.

Cooper v. WhitehouseENR 6 Car. & P. 545.

Poole v. Errington 1 Mood. & Rob. 343.

Frankum v. Earl of FalmouthENR 6 Car. & P. 529.

Brashier v. JacksonENR 6 M. & W. 549.

Bowers v. NixonENR 2 Car. & Kir. 372.

Richards v. Bluck 18 Law Jour., N. S., C. B. 15.

Gull v. Lindsay 18 Law Jour., N. S., Ex. 354.

Moilliet v. PowellENR 6 Car & P. 233.

Tite v. Worcester 1 Ld. Ray. 94.

Smith v. Fuller 1 Ld. Ray. 116.

Holmes v. PinneyUNK 6 Dowl. P. C. 627.

448 CASES AT LAW. E. T. 1850. Queen's Bench HENRY HARE, Executor of NATHANIEL TRUEMAN, v. JAMES M`GAHEY, WM. MGAHEY and JOHN M`GAHEY. April 30. DEBT, on a bond, tried before PERRIN, J., at the ;Spring Assizes of 1849, for the county of Down. The declaration contained a count on a lost bond against the three defendants, stating that they, in the lifetime of Nathaniel Trueman, to wit on the 1st day of January, A.D. 1848, to wit, at &c., by their writing obligatory, sealed with their respective seals, and which writing obligatory having been lost, the plaintiff could not produce the same to the Court here, acknowledged themselves to be held and firmly bound to the said N. T., his executors, administrators and assigns, in the sum of 50, part of the said sum demanded to be paid to N. T., his executors, &c., with legal interest thereon. The declaration also contained counts for money lent and money paid by N. T. in his lifetime to the defendants ; also a count for money received by them to his use, a count for interest, and one on an account stated, and concluded in the usual form by making proÂÂfert of the letters testamentary. The defendants pleaded, as to the first count, that the said supposed writing obligatory therein mentioned was not the deed of them the defendants, concluding to the country ; and as to the residue of the declaration, save and except the first count, that they did not owe the sum of money therein mentioned, or any part thereof. And for a further plea-actionem non ; because they say that they do not owe the said sum of money in the first count mentioned, or any part thereof, modo et forma. At the trial it appeared that Nathaniel Trueman had been in the application for a nonsuit on the part of the defendants, the plaintiff's Counsel apÂÂplied tor liberty to amend, by striking out the names J. M., jun., and J. M., and altering the averment in the declaration of a joint liability into a several one, which the Judge allowed. Held, that a Judge at Nisi Prius had no such power, as it was altering the title of the record ; but the Court in banco allowed the amendment to be made. CASES AT LAW. 449 habit of lending money during his life, and in 1848 he had lent E. T. 1850. Queen's Bench to three persons named Al`Gahey a sum of 50, for which a person 'TARE named Thomas Irwin had filled up a bond and warrant for that v. amount, which Irwin, who was examined at the trial, swore he saw M'GAHEY• executed by the three defendants (father and two sons) ; but on his cross-examination he said he was not certain as to the defendant William, for he did not know him. Irwin, who was a confidential friend of the deceased, further swore that a search had been made for the bond among Trueman's papers, and that some of these papers having been abstracted, the bond could not be discovered, but that he had witnessed no other bond executed than...

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