Stapleton v Bergin

• Jurisdiction: Ireland
• Judgment Date: 10 November 1854
• Date: 10 November 1854
• Court: Queen's Bench Division (Ireland)

Queen's Bench

STAPLETON

and

BERGIN.

M'Neale v. M'Court 6 Ir. Jur. 456.

Hobhouse v. Hamilton 1 Sch. & Lef. 207.

Assignee Lynch v. Kennedy 11 Ir. Law Rep. 341.

COMMON LAW REPORTS.. 421 M. T. 1854. Queen's Bench STAPLETON v. BERGIN.* Nov. 10. DEMURRER to a writ of revivor.-The writ was in the following In a writ of revivor, it is form :-" Victoria, &c.. John Bergin, the defendant, is summoned sufficient to describe the " to appear and show cause wherefore George M`Gusty, assignee plaintiff as assignee of the " of Michael Stapleton, shall not have execution against the said judgment, .without show- " John Bergin of a judgment, whereby the said Michael Stapleton, ing how he is " on the 17th January 1842, in the Court of Queen's Bench, such assignee. " recovered against the said John Bergin the sum of 200 debt, " with 2. Is. 11d. damages ; of which sums the said George " M`Gusty alleges that there remains due and unsatisfied the sum " of 83. 3s. principal, interest and costs ; therefore," &c. Demurrer to this writ, assigning as cause that it did not disclose any sufficient cause or reason why the plaintiff should have execuÂÂtion against the defendant on the judgment obtained by Michael Stapleton against the defendant, inasmuch as the writ did not show how the judgment vested in the plaintiff, or what was his title thereto, or how he could be entitled to demand execution on the judgment : that it was consistent with the averments that the judgment was still vested in Stapleton, and it was not stated by what instrument he might have assigned it, and that no enrolment pursuant to the statute, of any assignment, was alleged. Sullivan (with him J. D. Fitzgerald), in support of the deÂÂmurrer. The plaintiff does not state how lie is assignee, or of what he is assignee. The 151st section of the Procedure Act directs the defendant to show cause why the plaintiff " should not have execution against the party to whom such writ is directed."- [LEraov, C. J. Your demurrer admits the plaintiff is assignee, and you should have pleaded something to deprive him of that alleged right.]-The plaintiff is bound to state a clear legal title, to * MoouE, J., absente. 422 COMMON LAW REPORTS. M. T. 1854. 'entitle him to execution. In M'Neale v. lir Court (a), the omission Queen's Bench of an averment that the defendant held premises by the plaintiff's STAPLETON permission was held fatal ; and in this Court a summons and plaint v. BERGIN. was set aside as irregular...