M'Dowell v Bergin

• Jurisdiction: Ireland
• Judgment Date: 18 November 1861
• Date: 18 November 1861
• Court: Exchequer (Ireland)

Exchequer.

M'DOWELL

and

BERGIN.

Bullock v. DoddsENR 2 B. & Ald. 258.

Stokes v. HoldenENR 1 Keen, 145.

Swan and wife v. PorterENR Hardr. 60.

Macrae v. HyndmanENR 6 Cl. & Fin. 212.

Wooley v. Bradwell Cro. Eliz. 575.

Boyle v. FerrallENR 12 Cl. & Fin. 740.

Fowler v. Blood 5 Law Rec., N. S., 234.

M'Dowell v. DoyleIR 7 Ir. Com. Law Rep. 598.

Slade's case 4 Co. 93.

Lambert v. TaylorENR 4 B. & C. 138.

The King v. DeathENR Cro. Jac. 513.

Powys v. WilliamsENR 2 Lutw. 1601.

Beaufort v. BertyENR 1 P. Wms. 703.

Swan v. PorterENR Hardr. 60.

Bullen v. GervisENR Hutt. 53.

Rex v. MildmayENR 5 B. & Ad. 254.

Slade's caseENR 4 Co. Rep. 92 b.

Bate's case Lane's Rep. 23.

Rex v. Cooke M'C. & Y. 196.

Britton v. ColeENR 1 Salk. 395.

Shaw v. Cutteris Cro. Eliz. 850.

Batty v. Fay Ir. Term. Rep. 511.

Powis v. WilliamsENR 2 Lutw. 1604.

Hage v. SkinnerENR 3 Lev. 29.

Webb v. MooreENR 2 Vent. 282.

The King v. Executors of Sir John DaccombeENR Cro. Jac. 512.

The Earl of Somerset's caseENR Hob. 214.

Wilkes' case Lane's Rep. 54.

Pawlett v. Attorney-GeneralENR Hard. 466.

Rex v. TippinENR 2 Salk. 494.

Rex v. WilkesENR 4 Burr. 2533.

M'Dowell v. DoyleIR 7 Ir. Com. Law Rep. 598, 601.

COMMON LAW REPORTS. 391 M. T. 1861. Exchequer. M'DOWELL v. BERGIN.* Nov. 4, 5, 18. ACTION upon a promissory note. The summons and plaint was in A debt upon a promissory the following form :-" John Bergin, the defendant, is summoned to note is for- Cited to the " answer the complaint of George M`Dowell, official manager of the Crown by the outlawry of " Tipperary Joint-stock Bank, who complains that the defendant is thetl payee upon "indebted to the plaintiff in the sum of £25 sterling, for that the an indictment for misdemea- "defendant, on the 10th day of January 1856, by his promissory note, flour. A promis- "now over-due, promised to pay one James Sadleir, then and there sory note was mad public - to.J. S offi., "being a public officer of the said Tipperary Joint-stock Bank, in the ce " Roserea, £25 sterling, two months after date, for value received; and sto - of stock a Joint Bank, as " that said promise was made by the said defendant to the said such public officer, and for "James Sadleir, as such public officer of the said copartnership ; a debt due to the Bank. J. "and for the amount of £25 due by him to the said copartnership S. was out lawed upon an " and which said promissory note was duly indorsed by the said indictment for misdemea " James Sadleir, as such public officer of said copartnership, to the pour ; and after the out- " plaintiff, and said promissory note was duly presented at the Tip- Lawry, andd while ithweasinin- " perary Bank in Roscrea, and same was not paid when due, nor noted the "since. That the plaintiff has been duly appointed, and now is, note to " the official manager of the said copartnership, and as such entitled the official manager of the "to sue upon and recover the amount now due on the said note." Bank, under the Winding- " Plea-That the plaintiff ought not to have or .maintain his up Acts. Held, that "action against defendant, because he says that the promissory m'D. had no pt the sue "note therein mentioned was and is in the words and figures fol- i leen to u h e " lowing :- " Roscrea, 10th January 1856. " Two months after date, we jointly and severally promise to " pay James Sadleir," Esq., or order, at the Tipperary Bank of "' Roscrea, £25 sterling, value received. " JOHN BERGIN, 44 6 PATRICK PtERGIN.'" * Before the Full Court. 392 COMMON LAW REPORTS. " And defendant says that, upon the non-payment of said note, the " right of action upon same vested in said James Sadleir, to wit, on " the 13th day of March 1856; that after said right of action " became so vested in said James Sadleir, to wit, on the 20th day " of March 1857, at the General Session of Oyer and Terminer of "our Lady the Queen, holden in and for the county of Tipperary, " at the Tipperary Assizes for 1857, for said county, to wit, at " Clonmel in said county, before the Justices of our Lady the " Queen, assigned to hear and determine divers felonies, trespasses • " and other misdemeanours, committed within the said county, an " indictment, to wit, for conspiracy to defraud, was duly found by ' " the grand jury of the county of Tipperary, against the said James "Sadleir ; that said James Sadleir had then absconded and was " beyond the seas, and has ever since remained beyond the seas, " and out of the dominions of Her Majesty Queen Victoria ; that " due proceedings to outlaw said James Sadleir were then taken, " and that afterwards, and whilst the said right of action was so " vested in said James Sadleir, by the judgment of the Coroners of " the county of Tipperary, and according to the laws and customs " of the realm, judgment of outlawry was duly pronounced against " the said James Sadleir; and, before said judgment was pronounced, " all writs had issued, all returns and all proclamations had been " made, and all things had been done, and had happened, so as to " entitle said Coroners to pronounce said judgment of outlawry ; " and afterwards, to wit, on the 5th day of January 1858, said judgÂ" ment of outlawry, and all writs, returns and proceedings in the " matter of the outlawry of said James Sadleir were duly, according " to the laws and customs of the realm, enrolled in the Crown-office " of Her Majesty's Court of Queen's Bench in Ireland, and are now " of record therein, as by said judgment and proceedings now reÂ" maining of record appears ; and said judgment of outlawry still " remains in full force and effect, and said James Sadleir then became, " and thence continually bath been, and still is, an outlaw ;and " defendant saith that, after said judgment of outlawry and enrolÂ" went thereof, and whilst he was an outlaw, said James Sadleir " made the indorsement in the first count _mentioned ; and so the COMMON LAW REPORTS. • 393 "defendant says the plaintiff is not entitled to sue for or recover M. T. 1861. Exchequer. " the amount due on said note ; whereupon defendant prays j M'DOWELL judg- " ment, if plaintiff ought to maintain his action thereof against v. " defendant." BERGIN. Demurrer to this defence, upon the grounds that the outlawry of the said James Sadleir does not affect the right or power of the said James Sadleir, acting as public officer and trustee of the said Tipperary Joint-stock Bank, to indorse the promissory note in plaint mentioned; and because the said defence puts in issue a fact not material, or affecting the right of the said plaintiff to sue upon said promissory note ; and because it sufficiently 'appears upon the pleadings that the said promissory note was given to the said James Sadleir in his capacity of public officer of the said copartÂnership, and not in his own right, or for his own benefit. J. Murphy (with him Serjeant Armstrong), in support of the demurrer. The first question is, was this chose in action forfeited by the outlawry of James Sadleir, upon an indictment for a misdemeanour? We submit not. In outlawry for a felony, a chose...