The Queen v O'Callaghan

• Jurisdiction: Ireland
• Judgment Date: 16 June 1848
• Date: 16 June 1848
• Court: Exchequer of Pleas (Ireland)

Exch.of Pleas.

THE QUEEN

and

O'CALLAGHAN.

Birch v. Blenner 8 Ir. Law Rep. 396.

The Queen v. Daly 1 Ir. Law. Rep. 381.

Chamber's caseENR Poph. 202.

Jeffery v. WhiteENR 2 Doug. 476.

Jevens v. HarridgeENR 1 Saund. 86, 6th ed.

506 CASES AT LAW. T. T. 1848. E*ch.cf Pleas. THE QUEEN v. O'CALLAGHAN. June 16. To a scire fa. Tars was an action of scire facias brought upon a receiver's cias upona receiver's re- recognizance. The scire facias was in the following terms :- cognizance the " Victoria, by the Grace of God, of the United Kingdom of defendant pleaded that " Great Britain and Ireland, Queen, Defender of the Faith and her Majesty the Queen " soforth. To the Sheriff of the county of the city of Cork, ought not to have execu- "greeting. Whereas, on the 26th day of February 1835, Robert tion, &c., be cause he says that he the said R. O'C. craves oyer of the said supposed recognizance and the condition thereof, and it is read to him in these words :-" Now the condition of this recognizance is such that if the said Robert O'Callaghan, Esq., the receiver in this cause, do and shall from time to time well and truly account for and pay over all such rent and arrears of rent as he shall from time to time receive, or which, without wilful default, he might have received in this cause, that then and in such ease this recognizance to be null and void and of no effect, otherwise the same to be and remain in full force and virtue in law. And the said Robert O'Callaghan did from time to time, and at all times after the making of the said recognizance and the said condition thereof, well and truly observe, perform, fulfil and keep all and singular the articles, clauses, payments, conditions and agreements in the said condition in the said writing obligatory specified, comprised and mentioned, in all things conÂÂtained therein on his part and behalf to be observed, performed, fulfilled and kept, according to the tenor and effect, true intent and meaning of the said condition of the said supposed recognizance, and this the said R. O'C. is ready to certify." Replication to this plea, "that he the said R. O'C. heretofore to wit, on, &c., was appointed receiver in the cause in the condition of the said recognizance menÂÂtioned, to wit, in the cause of Staunton v. Grady and others, to receive the rents, issues and profits of the said lands and premises in the pleadings in said cause mentioned, and that the said R. accepted the said office of receiver in said cause and remained as such receiver in said cause for a long space of time, to wit, from the said 18th of June in the said year 1835 until and upon the 16th day of June 1842, and that during the said time that he the said R. O'C. so remained and continued as such receiver in said cause over the lands and premises in the pleadings in said cause mentioned, to wit, on the 25th March in the year 1836, and on divers other days and times between that day and the said 16th day of June 1842, to wit, at &c., he the said R. as such receiver as aforesaid had and received, or without wilful default might have received as such receiver out of the rents of the lands and premises in the pleadings in said cause mentioned, divers sums of money, amounting in the whole to a large sum of money, to wit, the sum of 1250 sterling, yet the said R. O'C., although often requested so to do, hath not as yet accounted for or paid over the said sum of 1250 or any part thereof, pursuant to his duty as such receiver as aforesaid, and the condition of the said recognizance, but hath therein wholly failed and made default, and the sum of 1250 so had and received by the said R., or which without wilful default he might have received as such receiver as aforesaid, is still wholly unpaid and unsatisfied, contrary to the form and effect of the said condition'of the said recognizance. Held, that the plea was bad on general demurrer, inasmuch as the condition of the recognizance as set out being to account " in this cause," no cause having been specified in the recognizance or condition, the latter was insensible and did not operate as a defeasanee. But sernble, that the replication was ill for assigning a breach in the alternative. CASES AT LAW. 507 " O'Callaghan, of the city of Cork, Esq., Frederick Lidwell of T. T. 1848. " Drumard in the county of Tipperary, Esq., and Hezekiah Exch. of Pleas. QUEEN THE " O'Callaghan of the city of Limerick, Esq., came before the Right v. "Honorable Henry Joy, Lord Chief Baron of his then Majesty's o' CAI,- A . " Court of Exchequer in Ireland, and acknowledged themselves to be IAGHAN "jointly and severally...