Whyte v Nutting

• Jurisdiction: Ireland
• Judgment Date: 26 November 1896
• Docket Number: (1896. No. 625.)
• Date: 26 November 1896
• Court: Exchequer Division (Ireland)

Whyte

and

Nutting (1).

Ex. Div.

(1896. No. 625.)

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1897.

Sheriff — Fi. fa. — Postponement of sale — Solicitor for execution creditor — Managing clerk — Authority.

Although an execution creditor or his solicitor, after delivery of the writ to the sheriff, may withdraw the execution, or postpone the sale of chattels seized under it, there is no implied power in the managing clerk of the solicitor to do so, notwithstanding that the clerk is left in charge of the solicitor's office and professional business during the temporary absence of his employer.

Accordingly where, during the absence from Ireland of the solicitor for an execution creditor, the managing clerk of the creditor's solicitor, who was in charge of his office and business, required (without being expressly so authorized) the sheriff to postpone for two days the sale of goods seized under a writ of fi. fa., and the sheriff refused to do so:—

Held, that the execution debtor could not sustain an action against the sheriff for illegally proceeding with the sale.

New Trial Motion.

The action was brought to recover damages against the High Sheriff of the county of Dublin, and was tried before Mr. Justice Holmes and a jury in the Trinity Sittings, 1896. The statement

of claim contained three causes of action: 1, for wrongfully breaking outer doors in executing a fi. fa.; 2, for negligent and improper conduct of the sale; and, 3, for illegally proceeding with the sale after the judgment creditor had required that it should be adjourned. There was no evidence in support of the first cause of action; the jury found a verdict for the defendant on the second; and the learned Judge directed a verdict for him on the third, and entered judgment for him. The plaintiff moved to set aside the verdict and judgment so directed as aforesaid, and for a new trial.

The material facts of the case are fully set out in the judgment of Mr. Justice Andrews.

Houston, Q.C. (with him, Rosenthal), for the plaintiff.

Campbell, Q.C., (with him, P. Keogh), for the defendant.

The authorities cited on both sides mainly dealt with the question of the power of the solicitor for the judgment creditor, or his managing clerk, to require the sheriff to adjourn the sale, and were as follows: Withers v. Henley (1); Hunt v. Hooper (2); Barker v. St. Quintin (3); Sneary v. Abdy (4); Re Craycraft (5); Rooney v. Farrell (6); Sheriff of Louth v. Donogh (7); Kempland v. Macauley (8); Botten v. Tomlinson (9); Raphael v. Goodman (10); Gregory v. Cotterell (11); Smart v. Hutton (12); Re Bryant (13); Lovegrove v. White (14); Levi v. Abbott (15); Taylor v. Willans (16); Standage v. Creighton (17); Baker v. Black (18); Churchill on Sheriffs, p. 439; Cordery on Solicitors, p. 219; and Wylie's Jud. Acts, p. 1252.

Cur. adv. vult.

Houston, Q.C. (with him, Rosenthal), for the plaintiff.

Campbell, Q.C., (with him, P. Keogh), for the defendant

Andrews, J.:—

This was a motion on behalf of the plaintiff to set aside the verdict and judgment directed to be entered for the defendant (the High Sheriff of the county of Dublin) and for a new trial.

There were three causes of action in the statement of claim: 1, for breaking outer doors in executing a fieri facias; 2, for negligent and improper conduct of the sale; and, 3, for illegally proceeding with the sale after the judgment creditor had required that it should be adjourned. There was no evidence in support of the first cause of action; on the second the jury found for the defendant; and on the third cause of action, which is the only one to be now considered, the learned Judge at the trial directed a verdict for the defendant.

The material facts of the case were that two ladies named Kirwan obtained a judgment in debt against the present plaintiff on foot of which a writ of fi. fa. was issued and lodged with the sheriff (the present defendant) for execution, in pursuance of which he seized the goods of the present plaintiff, Whyte, and duly advertised the sale for a specified day (which was a Saturday in the middle of August) at the hour of 1 o'clock. The solicitors for the judgment creditor were Messrs. Hogan & Son, and at the time appointed for the sale, which was in the Long Vacation, one of the two...