Yourrell v Proby

• Jurisdiction: Ireland
• Judgment Date: 05 June 1868
• Date: 05 June 1868
• Court: Common Pleas Division (Ireland)

Com. Pleas.

YOURRELL

and

PROBY

Pitcher v. King5 Q. B. 758, 766.

Munk v. Carr9 Dow. Pr. C. 332.

Mullet v. Challis16 Q. B. 239.

Floyd v. BethellUNK20 Vin. Abr. 182.

Perrin v. Monmouthshire Railway Co.ENR11 C. B. 855.

Leland v. Tancred16 Q. B. 664.

Gould v. WebbENR4 E. & B. 933, 943.

Cosker v. Musgrove9 Q. B. 223.

Towne v. CrowderENR2 C. & P. 355, 357.

Dean of Hereford v. MacknamaraUNK9 Dowl. P. C. 95.

Gibbon v. CottonENR2 Camp. 189.

Howden v. StandishENR6 C. B. 504.

Balme v. HuttonENR9 Bing. 471.

Garland v. CarlisleENR4 Bing. N. C. 7.

Towne v. CrowderENR2 C. & P. 355.

Sheriff not bound to seize goods of which he could not, by the exercise of due diligence, have had notice Payment of money into Court on one only of two causes of action substantially the same.

Corn. Pleas. YOTTRRELL v. PROSY (1). 1868. Sherif not bound to seize goods of which he could not, by the, exercise of due diligence, have had notice-Payment of money into Court on one only of two causes of action substantially the same. A Summons and Plaint against a sheriff stated the delivery of a writ, and that at the time of its delivery, and afterwards, during a reasonable time in that behalf, goods of the debtor were within the Defendant's bailiwick, and that the Defendant had notice thereof ; yet he, Defendant, did not levy, and made deÂÂfault in the execution of the writ, and falsely returned nulla bona. Plea-That, except certain goods of the value of 3, there were not at the time of delivery of the said writ, or afterwards, during a reasonable time in that behalf, any goods of the debtor -within the Defendant's bailiwick whereof the Defendant had notice, although he used, during all the time aforesaid, all due and proper diligence to discover the same. And, as to the default made in the execution of the said writ, in not levying out of the said goods, the Defendant brought into Court 5 5s. Held, on demurrer, that, as the measure of damages would be the same in an action for neglect to levy, and in an action for a false return, and as even if a Plaint contained a count upon each, there would be only one set of damages recovered-the money was substantially lodged in reference to the entire deÂÂfault, and the plea was good. Held, also, that the meaning of the averment in the count, " that there were goods, &c., within Defendant's bailiwick for a reasonable time in that behalf," was, that the goods were within the bailiwick for such a time that it was posÂÂsible for the sheriff to have seized them, and that the same construction should be put upon the same words in the plea. Held, also, that the sheriff was not liable for not seizing goods of the preÂÂsence of which in his bailiwick he had no notice, though he used all due diliÂÂgence. Tins was an action against the Sheriff of the county of Wicklow. The Plaint contained three counts. The first count stated that the Plaintiff had recovered judgment against one Robert Gray for 107 12s. 5d. ; that on the 5th of July, 1867, he issued a writ of fi. fa., and delivered it to the Sheriff; that at the time of the deÂÂlivery of the said writ, and afterwards during a reasonable time in (1) Before the full Court. COMMON LAW SERIES. 461 that behalf, goods and chattels of the said Robert Gray were within Com. Pleas. the bailiwick of the Defendant, and the Defendant had notice thereof, 1868. and could and ought to have levied thereout the money, &c., as by v 'DURRELL said writ directed ; yet, the Defendant did not levy, and made de- v. PROSY. fault in the execution of the writ, and falsely returned nulla bona. The second count stated the delivery of another writ of fl. fa. on the 27th of July, 1867, founded on the same judgment : that at the time of the delivery of the said writ, and afterwards, during a reasonable time in that behalf, goods and chattels of the said R. Gray...