T. Power v Fleming and O'Donnell

• Jurisdiction: Ireland
• Judgment Date: 14 June 1870
• Date: 14 June 1870
• Court: Common Pleas Division (Ireland)

Com. Pleas.

T. POWER

and

FLEMING AND O'DONNELL

Barker v. Braham 3 Wilson, 376.

Stratten v. LawlessUNK 14 Ir. C. L. R. 432.

Rowles v. Senior 8 Q. B. 677.

Foxall v. Barnett 2 E. & Bl. 928.

Prichet v. BoeveyENR 1 Cr. & M. 778.

Sandback v. Thomas Stark. N. P. 306.

Keene v. DilkENR 4 Exch. 388.

Wilson v. North Dock CompanyUNKELR 35 L. J. Ex. 97; L. R, 1 Ex. 184.

Bates v. Reilly 6 B. & Cr. 38.

Powell v. SalisburyENR 2 Y. & J. 391.

Sowell v. Champion 6 A. & E. 407.

Thynne v. Russell Jebb & Symes, 155.

Lyons v. Martin 8 A. & E. 512.

Childers v. WoolerUNK 29 L. J. Q. B. 129.

Humphreys v. Pratt 2 Dow. & L. 288.

Evans v. Collins 5 Q. B. 804.

Wooler v. WrightENR 1 H. & C. 554.

Wilson v. BarkerENR 4 B. & Ad., 616.

Hathaway v. BarrowENR 1 Camp. 151.

Sandback v. Thomas Hark. N. P. 306.

Grace v. MorganENR 2 B. N. C. 534.

Loton v. DevereuxENR 3 B. & Ad. 343.

Rowles v. Senior and others 8 Q. B. 677.

Thynne v. Russell 1 Jebb & Symes, 155.

Attorney's Liability for Wrongful Seizure under fi fa. Direction to Sheriff Remoteness of Damage Damages not recoverable against one co-Defendant because not recoverable against the other.

404 THE IRISH REPORTS. Com. Pleas. T. POWER v. FLEMING AND O'DONNELL (1). 1870. Attorney's Liability for Wrongful Seizure under fi. fa.-Direction to Sheriff- June, 1, 2, 14. Remoteness of Damage-Damages not recoverable against one co-Defendant because not recoverable against the other. Action for wrongful seizure of goods against A., the execution creditor, and B., her attorney, jointly. The attorney, who had given the Sheriff afi. fa. against C., sent a man with the Sheriff, as found by the jury, to point out C.'s goods ; he pointed out goods which the Sheriff seized, and which, on an inter-pleader issue, were found to be the goods of D., the Plaintiff in the present action. Held, that B., by the direction he had given the Sheriff, had made himself personally liable in trespass. Held also that, the attorney having directed the Sheriff to seize the goods which the man sent should point out, the consequence was just the same as if he had himself pointed out the wrong goods, and directed the Sheriff to seize them. The Plaintiff had got, as special damage, a verdict for 58 15s. 10d., the costs of the interpleader proceedings which he had taxed against the Defendant, A., and for the payment of which by her he had an order of the Court, but which he was unable to recover. Held that, as the present action was brought against both A. and B., the same damages must be recovered against both ; that, as the Plaintiff had an order which was equivalent to a judgment of the Court against her, he could not recover the amount of them as damages against her, and, therefore, the verdict should be reduced by the amount. THIS case was tried before the Lord Chief Baron and a special jury at Waterford, at the Summer Assizes, 1869. It was an action of trespass. The first count complained of the seizing and carrying away the Plaintiff's cows, and a goat, &c., alleging, as damage, that the Plaintiff was deprived of the use of the cattle, and of the milk of the cows, &c. ; and that he had incurred expense in feeding them, and in getting them restored to him, and in entering into security for that purpose ; and that said cows became dry, and the milk was lost to the Plaintiff, and the leg of one of them was broken, and said cow was wholly lost to Plaintiff, and the residue of said cattle were diminished in value. It appeared that the Defendant, Margaret Fleming, had obÂÂtained a verdict for 50, in an action for breach of promise of - (1) Before the full Court. VOL. Iv.] COMMON LAW SERIES. marriage against Richard Power, who was brother to the Plaintiff. In that suit the Defendant, O'Donnell, was Margaret Fleming's attorney ; and, having entered up judgment and taxed the costs of the action, he issued a fi. fa. against the goods of Richard Power, and gave it to the sub-sheriff to be executed. Under that execution the sheriff seized a number of cows, &c., which were claimed by the Plaintiff, Thomas Power, as his property. The sheriff obtained an interpleader order, Margaret Fleming alleging they were the property of Richard Power. On the trial of the interpleader issue there was a finding in favour of the Plaintiff, Thomas Power, to whom the cattle were accordingly restored, and Margaret Fleming was ordered to pay him the costs of the inter-pleader proceedings, which were taxed at 58 15s. 10d. The seizure complained of in the present action, in which both Margaret Fleming and O'Donnell were Defendants, was the seizure of Thomas Power's cattle under the fi. fa. issued against Richard. Margaret Fleming allowed judgment to go by default. O'Donnell traversed the doing of the acts ; and, at the trial, the question wag, whether O'Donnell had rendered himself personally responsible for the wrongful seizure. The sub-sheriff was examined as a witness for the Plaintiff, and stated that O'Donnell, shortly after the delivery of the fi. fa., told him he had a man of the name of Sheedy to point out to him the cattle of the Defendant, Richard Power, and that he would send him for that purpose ; and that he, the sub-sheriff, seized the cattle pointed out by Sheedy. O'Donnell, on the other hand, stated that he sent Sheedy merely to assist the sheriff, and point out the lands. A...