The Queen v Hurly

• Jurisdiction: Ireland
• Judgment Date: 24 May 1842
• Date: 24 May 1842
• Court: Court of Chancery (Ireland)

Chancery.

THE QUEEN

and

HURLY.

Atterbury v. WardENR Barnes, 60.

Crosse v. Porter Ib. 339.

Malland v. Jenkins Ib. 93.

Howard's Revenue Exchequer Vol. 2. 313.

Lilly's Entries p. 521.

Tidd's Forms p. 429. (8th ed.)

Chitty's Forms p. 291.

Chitty on Pleading p. 474. (5th ed.)

Rex v. Latouche 3 Law Rec. N. S. 209.

Harrington v. TaylorENR 15 East, 378.

Walters v. MaceENR 2 B. & Ald. 756.

Moriarty v. WilsonUNK 1 Ir. L. R. 52.

Mallard v. JenkinsENR Barnes, 93.

Morgan v. Palmer Al. & Nap. 300.

Fitzherbert's Abridgment Title, Record, fol. 20.

Brooke's Abridgment Title, Failure of Record, 4.

Plowden's Reports Fol. 14, b.

Comyns' Digest Title, Record, D.

Saunders 72, a.

Tidd's Forms p. 437.

Barkley v. Scott 3 Ir. Law Rec. 1st Series, 117.

The Queen v. Linley 1 J. & Sy.

Hartley v. HodgsonENR 8 Taunt. 172.

Comyn's Digest Title, Estoppel, E. 1.

Adney v. VersonENR 2 Lev. 243.

Fish v. BroketENR 2 Dyer, 180, b.

Reeve v. Allee Ibid, 223, b.

Cox v. Gray Buls. 207.

AnonymousENR 3 Dyer, 315, b.

Jeffreson v. MortonENR 2 Saund. 6.

4th Institute p. 80.

Bevan v. JonesENR 4 B. & C. 403.

Kendal v. Carey 2 W. Bl. 768.

Rex v. CarlisleENR 2 B. & Ad. 362.

Plowden p. 491, a.

Pierson v. Fahy 1 Jebb & Burke, 42.

CASES IN EQUITY. 1842. Chancery. THE QUEEN v. BURLY. Chancery. (AT THE PETTY BAG SIDE.) May 9, 11, and 24. Tats was an action of Scire Facias on a tenant's recognizance. The A wire faeias recognizance stated that " John Burly and Denis Burly of Fortland, John on a recogni zance con " Hassett of Shanana, and Daniel Herlihy of Ballysally, all in the county of ditioned for a tenant's pay- " Cork, farmers, on the 17th of Jul 1841 came before Joseph Barry, Esq., ing his rent in "one of the Masters Extraordinary of the High Court of Chancery of the usual form, stated that the " Ireland, and jointly and severally acknowledged themselves to be indebted conusors, de- "to the Queen, &c." It then contained the usual condition in such cases, scribing them as of the county and at foot was the following caption : " Taken and acknowledged before of Cork, came before A. B. " me the day and year first above written, at Mallow, in the county of a who then and. there was a "Cork, a Master Extraordinary of Her Majesty's High Court of Chan.. Master Extra " eery in Ireland, for said county of Cork.-Joseph Barry, Master ordinary, in "Extraordinary, county of Cork." and for said county, and The Scire Facias recited the recognizance in this manner : " Whereas duly authorised. in that alf, "on the 17th of July 1841, John Hurly and Denis Hurly of Fort- and thenbeh and. " lands, John Hassett of Shanana, and Daniel Herlihy of Ballysally, all there acknow- ledged them- "in the county of Cork, farmers, came before Joseph Barry, Esq., selves to be bound, &c. ," " who then and there was one of the Masters Extraordinary of our High concluding "Court of Chancery, in and for the said county of Cork, and duly "as by the saidnc reco- "authorised in that behalf, and then and there jointly and severally zae of reg conird "acknowledged themselves to be indebted to us, &c., as by the said may appear," and did not set "recognizance of record may appear." It then stated that the money out the condi- tion of the was due, and commanded the Sheriff to summon the parties to appear cognizance. - re and skew cause why execution should not be had, but it did not set out The defendants or refer to the condition of the recognizance. pleadednultiel record. To this a plea of nul tiel record was put in by the conusors, and a Held, that the omission replication, alleging the existence of the record in question, having been of the con- dition of the filed on behalf of the Crown, the case was set down for argument. recognizance in the scire faci as was Mr. 0' Shaughnessy,, for the defendants.-The first variance between variance, betathat as the practice ap peared to be uniformly to omit the condition, the Court would sustain that practice and not allow the objection to prevail. Held also that the introduction into the scire facias of the allegation, that A. B. was a Master Extraordinary for the county of Cork, was no variance, not being a statement of the record, but an independent averment upon which issue might be taken. 638 CASES IN EQUITY. the statement of the recognizance in the scire facia:, and the record itself, which we rely on, is the omission of the condition of the recogÂÂnizance. The scire facias, which is to be considered as if it were a declaration, states the recognizance to be an absolute one for the payment of money, whereas, it appears upon the production of the record, that it is conditional. That that is a fatal variance was decided in the case of Atterbury v. Ward (a); and in Crosse v. Porter (b), where the defendant attempted to take advantage of the objection by demurrer, the demurrer was overruled, because the recognizance appeared by the declaration to be absolute, but it was said that if it were conditional the defendant might plead nul tiel record. In Malland v. Jenkins (c) such an objection, it is true, was disallowed, but that was because the recognizance and the condition were separate instruments, sheaving that if the condition were part of the recognizance, the objection should have prevailed. In HowÂÂard's Revenue Exchequer (d) there is given the form of a scire facias against a Sheriff's sureties, and that sets out the condition. All the other precedents are framed in the same way ; Lilly's Entries (e); Tidd's Forms (f); Chittyls Forms (g); Chitty on Pleading (h). This is an omission by which the defendant may be seriously prejudiced, because the condition being part of the record be cannot crave oyer of it, as in case of a bond, and set it out as part of his adversary's pleading, and then demur. That is the way in which he could take advantage of any objecÂÂtion arising from the condition of a bond or other instrument, but he is deprived of any such objection here by the mode of pleading that has been adopted. If the condition were illegal, the defendant would thus be prevented from availing himself of the objection in any way : he could not demur, because the recognizance appears upon the scire facias to be absolute, and he could not plead, because the recognizance being matter of record, no averment against its validity could be admitted. The second variance between the scire facias and the record is, that the former contains an averment that Barry, before whom it was taken, was a Master Extraordinary for the particular county, and that there is no such statement in the recognizance itself. Now, that is a material averment, and the omission of it would have rendered the scire facias demurrable ; Rex v. Latouche (i). So that the pleader was bound to make it, and it was one upon which the defendant might take issue ; and if he succeeded upon such an issue, there would be an end of the plain (a) Barnes, 60. (c) lb. 93. (e) p. 521. (g) p. 291. (b) lb. 339. (d) Vol. 2. 313. (f) p. 429. (8th ed.) (h) p. 474. (5th ed.) (i) 3 Law Rec. N. S. 209. CASES IN EQUITY. 639 tiff's case. But it is stated here as part of the record, and the defendant, therefore, is precluded from traversing it. It may be said that this is an independent averment of the pleader, but the mode in which it is stated takes away that argument, because the statement of which it is a part concludes with a reference to the record, "as by the said recogniÂÂzance," &c. Now the case of Harrington v. Taylor (a), shews that where those words follow a series of allegations, they must be considered to refer to every one of them ; and although an averment of the jurisdiction of the Officer who took this recognizance ought to have been introduced, it is stated in the present case as part of the record, and the defendants are entitled to the benefit of the variance. It is true that the caption contains a...