O'Malley v Lindsay

• Jurisdiction: Ireland
• Judgment Date: 07 May 1849
• Date: 07 May 1849
• Court: Court of Common Pleas (Ireland)

Common Pleas.

O'MALLEY

and

LINDSAY.

Pierson v. Fahy Jebb & Bou. R. 42.

Lepiot v. BrowneENR 1 Salk. 7.

Amey v. longENR 1 Camp. 14.

Regina v. HurleyUNK 2 Dru. & War. 450; S. C. 4 Ir. Eq. Rep. 647.

Kirke v. Sir John Parratt Dy. R. 172, 16.

Lepiot v. BrowneENR 1 Salk. 7.

Wilson v. Stubbs Hob. R. 330.

O'Brien v. Whitlaw 2 Law Rec. N. S. 148.

Hozier v. Powell 2 Jo. Exch. R. 642.

Walters v. MaceENR 2 B. & Ald. 756; S. C. 1 Chit. R. 507.

Donohoe v. Gibbons Smythe, Rep. C. P. 146.

Kelly v. Dolphin Smythe Rep. C. P. 147.

Tilly v. Norton Smythe. Rep. C. P. 469.

Cox v. BrewerENR 11 M. & W. 51.

Farron v. Ottiwell 5 Ir. Law Rep. 487.

Farrell v. Glesson 7 Ir. Law Rep. 478.

Phillpson v. ManglesENR 11 East, 516.

Regina v. HurleyUNK 2 Dru. & War. S. C. 4 Ir. Eq. Rep. 637.

Amey v. LongENR 1 Camp. 14.

Purcell v. M'NamaraENR 9 East, 161.

The Agricultural Bank v. Nugent 5 Ir. Law Rep. 357.

Hozier v. Powell 2 Jones Ir. Ex. R. 263.

Rex v. Bishop of Chester 1 Lord. Ray. 303; et vide Shower's Parl. Cases, 212.

Green v. WallerENR 2 Ld. Raym. 891.

Regina v. Naghten 9 Ir. Rep. 593.

Jarmain v Hooper 1 Dowl. & L. 769.

Stoddart v. PalmerENR 3 B. & C. 2.

Phillips v. ShawENR 4 B. & Ald. 435.

Blackmore v. Flemyng 7 T. Rep. 446, in notis.

Rastall v. StrattonENR 1 H. Bl. 49.

Readshaw v. WoodENR 4 Taunt. 13.

Kelly v. Dolphin Smythe, 153.

Kirke v. Sir John Parratt Dyer R. 173, 16; Vaillant's ed. 173, b.

O'Brien v. Whitlaw 2 Law Rec. N. S. 148.

Hozier v. Powell 2 Jones Ex. R. 642.

Donohoe v. Gibbons Smythe, R. C. P. 146.

Kelly v. Dolphin Smythe R. C. P. 147.

Tilly v. Norton Smythe R. C. P. 469.

Lepiot v. BrowneENR 1 Salk. 7.

Amey v. LongENR 1 Camp. 14.

Rex v. LeefeENR 2 Camp. 141.

Pierson v. Fahy Jebb & Bourke, 42.

The Agricultural Bank v. Nugent 5 Ir. Law Rep. 357.

Hosier v. Powell 2 Jones's Ir. Exch Rep. 642; S. C. 1 Cr. & Dix. 399.

Regina v. HurleyUNK 2 Dru. & War. 433; S. C. 4 Ir. Eq. Rep. 637.

Regina v. NaghtenUNK 9 Ir. Eq. Rep. 593.

Jarmain v. Hooper 1 Dowl. & L. 770.

100 CASES AT LAW. E. T. 1849. plaintiff were not at liberty to lay his demise upon the following CommonPleas. day. Lessee GOFF TORRENS, J. MULLOY. O'MALLEY v. LINDSAY.* May 4, 5, 7. The record of THE writ of scire facias in this cause recited the recovery of a the memorial of the assigm judgment in Trinity Term, 11 G. 4, by " Charles O'Malley, of meat of ajudg ment stated Hawthorn Lodge, in the county of Mayo, Esquire," against the that " Charles O'Malley, of defendant (by confession) for 2000 debt and 2. 2s. 8d. damages, Hawthorn atet Lodge, in the P rout p, &c. The writ then proceeded thus :-" And the said L county of Mayo " Charles O'Malley afterwards came into said Court, and by deed duly Esquire," assigned the "executed, according to the form of the statute and soforth, assigned, judgment to A Charles B and "transferred and made over the judgment debt and damages afore- " j O'Malley "said to Robert Boyd, of Southampton, in the Kingdom of Great unior of TemÂÂple-st., in the "Britain, Esquire, late Lieutenant in his Majesty's Royal Veteran city of Dublin, Esquire, "Battalion, and Charles O'Malley of Temple-street, in the city of Barrister-at law ;" a scire "Dublin, Barrister-at-law ; as by the memorial and record thereof facias, issued upon thisjudg- "remaining in our said Court, of Trinity Term, in the 11th year of merit, in stat ing the assign- "the reign of his said late Majesty King George the Fourth, mani ment, omitted, in the descrip- " festly appears. Execution nevertheless of said judgment remains tion of Charles O'Malley the "to be made, as we have received information from the said Robert assignee, the " Boyd and Charles O'Malley, assignees as aforesaid; and because we words junior and esquire. "are willing that those things which are rightly done in our said Held, that this was a fatal " Court should have due execution, we command you, as we before variance. The principle laid down in Pierson v. Fahy (Jebb & Bourke, 42), and The Agricultural Bank v. _Nugent (5 Ir. Law Rep. 357), namely, that to constitute a fatal variance there must be an apparent inconsistency between the record and the scire facias-questioned. Regina v. Naghten (9 Ir. Eq. Rep. 593) and Anzey v. Long (1 Camp. 14) conÂÂsidered. * DOHERTY, C. J., and TORRENS, J., absent in consequence of illness. CASES AT LAW. 101 "commanded you, that by honest and lawful men of your bailiwick Common Pleas. E. 7. 1849. " you make known to the said Thomas that he may be before our O'MALLEY "Justices at the Bench at the Queen's Courts on the 1 1 th day of v, "January 1849, to show if he have or can say any thing for himself LINDSAY. "why the said Robert and Charles should not have execution " against him for the debt and damages aforesaid, according to " the form of the recovery and statute aforesaid, if it shall seem " to them expedient ; and have there the names of those by whom "you make it known and this writ. Witness," &c. First plea-Payment to the said Charles O'Malley in the said writ of sci. fa. first above named. Second plea-Payment to the said Charles O'Malley in the said writ of sci. fa. first above named, before the defendant had any notice of the supposed assignment. Third plea-Payment to the assignees. Fourth plea-Nu/ tiel record of the memorial of the supposed deed of assignment in the sci. fa. mentioned. Upon this fourth plea the cause now came on. The record of the memorial of assignment produced in Court was as follows :- " To THE PROTHONOTARY OF HIS MAJESTY'S COURT OF COMMON PLEAS IN IRELAND. " A memorial of an indented deed of assignment, bearing date " the 17th day of July 1830, made and executed between Charles " O'Malley, of Hawthorn Lodge, in the county of Mayo, Esquire, of "the one part, and Robert Boyd, of, &c., and Charles O'Malley, "junior, of Temple-street, in the city of Dublin, Esquire, BarristerÂÂ" at-law, of the other part. " Whereby, after reciting that the said Charles O'Malley did, in "or as of Trinity Term 1830, obtain a judgment in his Majesty's " Court of Common Pleas against Thomas Spenser Lindsay, of " Hollymount, in the county of Mayo, Esquire, for the sum of 2000 "sterling debt, besides costs, as by the records of said Court might " appear. " And after reciting that there was then due and owing on the " foot of the said recited judgment, for principal the sum of " 980. lOs. 2d. present currency, the said Charles O'Malley, for " and in consideration of the said sum of 980. 10s. 2d., did grant, 102 CASES AT LAW. " &c., assign, &c., unto the said Robert Boyd and Charles O'Malley, " junior, their executors, administrators and assigns, all that the "said recited judgment and all principal money, interest and costs, " &c., to have, hold, &c., the same and every part thereof unto the " said Robert Boyd and Charles O'Malley, junior, their executors, "administrators and assigns, as his and their goods and chattels "for ever. And the said Charles O'Malley did thereby, for him, "his' heirs, executors and administrators, covenant, &c., to and " with the said Robert Boyd and Charles O'Malley, junior, their " executors, administrators and assigns, that there was then due "and owing on foot of said recited judgment, thereby assigned, for " principal, interest and costs, the sum of 980. 10s. 2d. sterling, " and that no part thereof was paid or otherwise satisfied," &c. The record of the memorial was attested in the usual manner, and was followed by the ordinary affidavit of one of the subscribing witnesses as to the due execution of the assignment " by the above named Charles O'Malley," and of the memorial " by the said Charles O'Malley." R. 111'Causland, with whom was Whiteside, in support of the plea of nul tiel record, drew the attention of the Court to the omission in the scire facias of the words " junior" and " esquire," which in the record of the memorial formed part of the description of Charles O'Malley, one of the assignees of the judgment, and cited Com. Dig. tit. Record, C. [The Court here stopped him and called, in support of the sci. fa., on]- Charles J. O'Donel, with whom were J. D. Fitzgerald and Butt. At the foot of the, judgment upon the roll we find this entry :- " A memorial of an assignment of the debt and damages aforesaid, " to Robert Boyd of Southampton, in the Kingdom of Great Britain, " Esquire, late Lieutenant in his Majesty's 7th Royal Veteran BattaÂÂ" lion, and Charles O'Malley, of Temple-street, in the city of Dublin, " Barrister-at-law, is enrolled in Trinity, 11 G. 4." Our sci. fa. does not vary from this.-[BALL, J. That entry is not the record of the memorial of assignment, it is merely an abstract of it. It CASES AT LAW. 103 may be matter recorded, but it is not the record. That is a distincÂÂtion as old as the time of Lord Coke.]---The Court being...