The Heir and Tertenants of CREAGH v Administrator of FULTON, Assignee of ST.QUENTIN.

• Jurisdiction: Ireland
• Judgment Date: 24 May 1843
• Date: 24 May 1843
• Court: Court of Exchequer Chamber (Ireland)

Exch. Cham.

The Heir and Tertenants of CREAGH

and

Administrator of FULTON, Assignee of ST.QUENTIN.

French v. CampbellENR 2 H. Bl. 178.

AnonymousENR 2 Salk. 519.

Sterling v. ClaytonENR 1 C. & M. 241.

Lowe v. EldredENR 1 C. & M. 239.

Richardson v. TomkinsENR 9 Bing. 51.

Bruce v. WaitUNK 1 M. & G. 1.

Perriman's case 5 Co. 84.

Bruce v. Cook 1 H. & B. 318, n.

Lewis v. ParkesENR 3 M. & W. 133.

Meredith v. Davies J Salk. 270.

Cully v. TaylorsonENR 11 Ad. & El. 1013.

Dunbar v. HitchcockENR 3 M. & S. 591.

Heard v. BaskervilleENR Hob. 233.

Woolley v. PirleyENR Yelv. 213.

322 CASES AT LAW. 1843. Exch. Cham. IN ERROR FROM THE COURT OF QUEEN'S BENCH. The Heir and Tertenants of CREAGH v. Administrator of FULTON, Assignee of ST. QUENTIN. (In the Court of Exchequer Chamber.) Tan was a scire facias directed to the Sheriff of the county Clare, reciting a judgment lately recovered by Dominique St. Quentin against Richard Creagh, for £4000 and damages, and that execution yet remained to be done ; "and the said Dominique St.Quentin afterwards by his deed "duly executed, the judgment debt and damages aforesaid, according to "the form of the statute in such case made and provided, to Henry Fulton " transferred and assigned, as by the memorial and record of the same, in " our Court before us remains and appears." That the said Henry Fulton died intestate, and administration was granted to William Fulton ; and that the said Richard Creagh, after the said recovery, died seized of certain lands, &c. The writ then went in the usual manner to recite the summons of the heir and tertenants, who being required to plead, pleaded severally (among many other pleas, which it is unnecessary to set out), nut tiel record of the memorial of the assignment of the said judgment-. to which the defendant replied precludi non, because that there is such a record of the memorial of the assignment of the said judgment, as he was ready to verify ; and prayed inspection of the record, and a day was given to the parties, &c. Accordingly, the Court having inspected the record, gave judgment for the plaintiff below, to have execution against the said heir and tertenants for the debt and damages aforesaid, of the lands and tenements aforesaid. A writ of error, to reverse this judgment, was taken out by the said heir and tertenants, who assigned as error on the record and proceedings aforesaid, and also in giving the judgment and award of execution aforeÂsaid, that there is not any such record of the memorial of the alleged assignment of the judgment, &c., and also, that judgment was given for Held also, that the defendant having pleaded nul tint record of the memorial of the assignment, that a replication of tiel record, and praying an inspection by the Court, was correct. Held also, that the record of the memorial of the assignment not being on the record before the Court of Error, the plaintiff in error, who assigned for error that there was no such record of the memorial, was bound to have made an application on notice, before the case came on for argument, for a writ of certiorari to have the said record brought up for inspection ; and that not having given notice of such an application, and having no merits, the Court would not suspend their judgment until such an application could be regularly made. CASES AT LAW. 323 the defendant in error instead of for the plaintiffs. The defendant having joined in error, the ease came on for argument in this Court. Mr. W. H. Griffith, with whom was Mr. Collins, Q. C., for the plaintiffs in error. The plaintiff below, in order to entitle himself as assignee to sue upon this judgment, must show that he has complied, if not literally, at all events substantially, with the provisions of the 9 G. 2, c. 5,* as a condition precedent, and without which he had no title to sue at law ; French v. Campbell (a); Plowd. Com. 84 ; 2 Wms. Saund. 108, n. 3. It was, therefore, incumbent on him to have set out the memorial of the assignÂment (which is, in this case, defective in several particularsf) on the face of the scire facias, or, at all events, in his replication; or, if not verÂbatim, he should have stated the purport of it, with an averment that the requisites of the statute had been complied with, and in what manner ; Com. Dig. Pleader, C. 50, 51 ;-there being a distinction, as laid down by Holt, C. J., between a right vesting at common law and created by (a) 2 H. BI. 178. • By the 9 G. 2, c. 5, s. 1, it is enacted, that a conusee, or his executors or adminisÂtrators, assigning, shall perfect a memorial of such assignment under their hand and seal, upon parchment or vellum...