O'Loughlin v Fogarty, and Another

• Jurisdiction: Ireland
• Judgment Date: 26 January 1842
• Date: 26 January 1842
• Court: Exchequer of Pleas (Ireland)

Exch.of Pleas.

O'LOUGHLIN

and

FOGARTY, and another.

Green v. BennettENR 1 T.R. 656.

Hozier v. Powell 6 Law Rec. N. S. 288.

Chetley v. WoodENR 2 Salk. 659.

The Queen v. Drake ib. 660.

Bevan v. JonesENR 4 B. & C. 403.

Gadd v. BennettENR 5 Price, 540.

Phillpson v. ManglesENR 11 East, 516.

Purcell v. M'NamaraENR 9 East, 161.

H. T. 1842. Esvh.ofPleas. SONDER V. DARCY. 54 CASES AT LAW. repugnancy or inconsistency where none previously existed. I confess I should require some direct authority to induce me to decide in favour of this demurrer ; and had an application been made to set it aside as a purely frivolous demurrer, I would have felt strongly disposed to do so. The direction contained in the schedule annexed to the General Rules of Hilary Term 1832, is merely a form of expression suggested for the sake of grammatical propriety, and is by no means imperative in its terms. For these reasons, we think the demurrer must be overruled. RICHARDS, B. I concur in the judgment of my Lord Chief Baron, as I conceive the Court is at liberty to confine the promise at the end of the declaration to the money counts.* Demurrer overruled. • Pennefather, B., and Lefroy, B., absent. O'LOUGHLIN v. FOGARTY, and another. DEBT on a bail-piece. The declaration stated that the defendants on the 24th day of October, A. D., 1839, at Limerick, to wit, at Castle-street, in the county of the city of Dublin, came in their proper person, before one Holmes O'Brien, at his office in the city of Limerick, the said Holmes O'Brien then and there being a Commissioner duly appointed by this honorable Court, to take special bail in and for the said city of Limerick, in any action depending in the Court here, accordÂ. alleged in the declaration against the bail, that the plaintiff recovered the judgment against the principal on the 17th June 1840, but on the production of the record, it appeared from the entry on the roll, to have been recovered on the 27th of May 1840, (though the 17th June was marked on the margin of the roll, as the day on which it was actually entered,)-Held on a plea of nee/ tiel record, that there was no variance, the allegation of the recovery of the judgment being an allegation of substance and not of description. Semble, that even if matter of description, there would be no variance, as the day marked on the margin of the roll pursuant to the statute, is the true date of the judgment. Where the allegation is of matter of substance, a reference to the, record by a prout patet per rec., will not put the party upon stricter proof of it, than if such an averment were omitted. To a plea of no ca. sa. against the principal, the plaintiff replied a ca. sa. and return thereto, that the principal was "not found," &c. ; but the return itself as sled, was that the principal was "not to be found,"-Feld, no variance, both forms of return being of equivalent import. Held also, not to be ground of general demurrer, that the replication omitted to aver, that the county to which the ca. sa. was issued, was that where the venue in the original action was laid. " Costs" are parcel of the " damages," and in a legal sense are included therein. CASES AT LAW. 55 ing to the form of the Statute in such case made and provided, and H. T. 1842. then and there, to wit, on the day and year last aforesaid, at Limerick, Even4Pleas • to wit, at &c., before the said Holmes O'Brien, so being such Com- O'LOUGHLIN missioner, became pledges and bail for one Christian Zinck, to pay all V. such damages, expenses, and costs, as should be awarded the said plain- FOGARTY . tiff, in an action upon promises then depending in this Court, by and at the suit of the plaintiff, against the said Christian Zinck, or render the body of the said Christian Zinck, to the Marshal of the Marshalsea of the Four Courts, Dublin ; which bail-piece afterwards, to wit, on the fourth day of November 1839, to wit, at Castle-street, in the county-of the city of Dublin, was then and there duly transmitted and brought into the said Court here, to be filed and recorded ; and thereupon the said bail-piece was duly filed and recorded in the said Court here, to wit, on the day and year last aforesaid, to wit, at Castle-street, aforesaid, as by the record thereof still remaining in the said Court here fully appears; and although the plaintiff afterwards, to wit, on the 17th day of June, in the year 1840, by the judgment of the said Court, recovered in the said action against the said Christian Zinck, £81. 16s. Id., for his damages, which he had sustained, as well on occasion of not performÂing certain promises and undertakings then lately made by the said Christian Zinck to the plaintiff, as for his expenses and costs, by him about his suit in that behalf expended ; whereof the said Christian Zinck was convicted, as by the reords and proceedings thereof, still remaining in the said Court here fully appears ; yet the said defendants have not, nor has either of them, nor has the said Christian Zinck, paid to the plaintiff his said damages, or any part thereof, nor rendered the said Christian Zinck on that occasion, or at all, to the prison of the Marshal of the Marshalsea of the Four Courts at Dublin, according to the said bail piece. And the plaintiff avers that the said bail-piece as also the said judgment still remain in force, and the plaintiff hath not as yet obtained any execution or satisfaction of the said judgment, whereby an action hath accrued to the plaintiff to demand and have of and from:the said defendants the said sum of £81. 16s. Id., in form aforesaid recovered, and above demanded. Yet the defendants have not, nor bath either of them, paid the same, nor any part thereof, to the plaintiff's damage of £100, whereby, &c. Third plea, actio non, because the defendants say-" That after the "recovery of the said supposed judgment as in the said declaration "mentioned, and before the exhibiting of the bill of the said plaintiff "against the said defendants in this behalf, there was no writ of capias ad satiewiendam duly sued or prosecuted out of the said Court of our "Lady the Queen, before the Barons of her said Exchequer, against the "said Christian Zinck upon the said judgment, and duly returned in the "said Court as according to law, and the custom and practice of the said 56 CASES AT LAW. " Court, there ought to have been, and this the said defendants are "ready to verify," &c. Seventh plea, nu/ tied record of the judgment in the declaration menÂtioned. Replication to the third plea, precludi non, because " The said plainÂ" tiff, after the recovery of the said judgment against the said Christian "Zinck, as in the said declaration is mentioned, and before the comÂ" mencement of this suit, to wit, on the 2nd day of November, in the " fourth year of our Lady the Queen, and in the year of our Lord 1840, "...