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“commanded you, that by honest and lawful men of your bailiwick E. T. 1849.
Common Pleas. "you make known to the said Thomas that he may be before our
O'MALLEY “ Justices at the Bench at the Queen's Courts on the 11th day of v. “ January 1849, to show if he have or can say any thing for himself LINDSAY. " why the said Robert and Charles should not have execution " against him for the debt and damages aforesaid, according to “ the form of the recovery and statute aforesaid, if it shall seem “to them expedient; and have there the names of those by whom “you make it known and this writ. Witness,” &c.
First plea—Payment to the said Charles O'Malley in the said writ of sci. fa. first above named.
Second plea_Payment to the said Charles O'Malley in the said writ of sci.fa. first above named, before the defendant had any notice of the supposed assignment.
Third plea–Payment to the assignees.
Fourth plea-Nul tiel record of the memorial of the supposed deed of assignment in the sci. fa. mentioned.
Upon this fourth plea the cause now came on. The record of the memorial of assignment produced in Court was as follows:“TO THE PROTHONOTARY OF His MAJESTY's Court of
COMMON PLEAS IN IRELAND. “A memorial of an indented deed of assignment, bearing date “the 17th day of July 1830, made and executed between Charles “O'Malley, of Hawthorn Lodge, in the county of Mayo, Esquire, of "the one part, and Robert Boyd, of, &c., and Charles O'Malley, "junior, of Temple-street, in the city of Dublin, Esquire, Barrister“at-law, of the other part.
“Whereby, after reciting that the said Charles O'Malley did, in “or as of Trinity Term 1830, obtain a judgment in his Majesty's “ Court of Common Pleas against Thomas Spenser Lindsay, of “Hollymount, in the county of Mayo, Esquire, for the sum of £2000 “sterling debt, besides costs, as by the records of said Court might “appear.
“And after reciting that there was then due and owing on the “ foot of the said recited judgment, for principal the sum of “ £980. 10s. 2d. present currency, the said Charles O'Malley, for " and in consideration of the said sum of £980. 10s. 2d., did grant,
E. T. 1849. “ &c., assign, &c., unto the said Robert Boyd and Charles O'Malley, Common Pleas.
"junior, their executors, administrators and assigns, all that the O'MALLEY
" said recited judgment and all principal money, interest and costs, LINDSAY. "&c., to have, hold, &c., the same and every part thereof unto the
" said Robert Boyd and Charles O'Malley, junior, their executors, “administrators and assigns, as his and their goods and chattels “for ever. And the said Charles O'Malley did thereby, for him, “his heirs, executors and administrators, covenant, &c., to and “ with the said Robert Boyd and Charles O'Malley, junior, their “executors, administrators and assigns, that there was then due " and owing on foot of said recited judgment, thereby assigned, for “principal, interest and costs, the sum of £980. 10s. 2d. sterling, "and that no part thereof was paid or otherwise satisfied,” &c.
The record of the memorial was attested in the usual manner, and was followed by the ordinary affidavit of one of the subscribing witnesses as to the due execution of the assignment “by the above named Charles O'Malley,” and of the memorial 5 by the said Charles O'Malley."
R. M Causland, with whom was Whiteside, in support of the plea of nul tiel record, drew the attention of the Court to the omission in the scire facias of the words "junior" and “esquire," which in the record of the memorial formed part of the description of Charles O'Malley, one of the assignees of the judgment, and cited Com. Dig. tit. Record, C. [The Court here stopped him and called, in support of the sci. fa., on]—
Charles J. O'Donel, with whom were J. D. Fitzgerald and Butt.
At the foot of the judgment upon the roll we find this entry :“A memorial of an assignment of the debt and damages aforesaid, “ to Robert Boyd of Southampton, in the Kingdom of Great Britain, “ Esquire, late Lieutenant in his Majesty's 7th Royal Veteran Batta“lion, and Charles O'Malley, of Temple-street, in the city of Dublin, “ Barrister-at-law, is enrolled in Trinity, 11 G. 4.” Our sci. fa. does not vary from this.—[BALL, J. That entry is not the record of the memorial of assignment, it is merely an abstract of it. It
may be matter recorded, but it is not the record. That is a distinc- E. T. 1849.
Common Pleas. tion as old as the time of Lord Coke.]—The Court being against
O'MALLEY us on this branch of the case, we shall argue that, although there is an omission in the scire facias there is not any apparent inconsis- LINDSAY. tency between the scire facias and the record. Where the record of the judgment described the plaintiff as “ John Pierson, Esquire, of Denzille-street,” and the writ of scire facias as “ John Pierson,” on plea of nul tiel record, Burton, J., says : “ This does not “amount to a variance upon a plea of nul tiel record. The reason “is, that a variance must amount to an inconsistency, as in the cases “which have been cited, but here there is nothing of that kind :" Pierson v. Fahy (a).—[Ball, J. But he further observes, “ The “9 G. 4, c. 35, s. 8, directs that for the purpose of identifying the "parties the officer of the Court shall get such a description as may “afford the means of a certain reference, and enter this descrip“tion in the margin of the roll of the judgment;' but the mere “addition of such words to the record could not (of itself) have the "effect of making it inconsistent with the writ, and therefore could “not create a variance.” How do you explain these remarks ?]Whiteside. His reference to the margin of the roll of the judgment shows that the words omitted by the scire facias must have been contained merely in the margin and not in the body of the record, which would completely distinguish that case from the present.-[BALL, J. Yes, that is the only way in which I can at present reconcile that case with what I have hitherto understood to be the rule on points of variance.]—O'Donel. My impression is, that the words omitted by the scire facias occurred in the body of the record in that case; however I shall examine the record, and let the Court know the result previously to its giving judgment in the present case.*-[JACKSON, J. In Pierson v. Fahy, there were not
(a) Jebb & Bou. R. 42.
* He found the fact to be as he said, viz. :—That the words omitted by the scire facias were contained not only in the margin but were also in the body of the record. This circumstance was stated to the Court before its decision was pronounced in the case at bar. The judgment in Pierson v. Fahy was entered as of Michaelmas Term 1834. The surnames of the plaintiff and defendant appear in the record to be " Pearson " and“ Fahie.”
E. T. 1849. two persons of the same name, a fact which here involves an addiCommon Pleas.
tional difficulty.–BALL, J. The first named Charles O'Malley may O'MALLEY
have assigned to himself and Boyd.]—One is described by the scire LINDSAY. facias as “of Hawthorn lodge, in the county of Mayo, Esquire,”
and the other as “ of Temple-street, in the city of Dublin, Esquire, Barrister-at-law.”—[BALL, J. Admitting that the assignor and assignee are different persons, how do you show that the assignee described by the record as "junior" is the same person as the assignee in the scire facias ?]—It is sufficient that it does not appear that they are different persons ; any matter that distinguishes the person makes the addition of “senior” and “junior” unnecessary: Lepiot v. Browne (a).
In Amey v. Long (6), where an action on the case was brought against a witness for not producing a paper under a subpoena duces tecum at the trial of an action against the Sheriff of Surrey for a false return of nulla bona to a writ of non omittas testatum fieri facias to levy the amount of a judgment received by the plaintiff Mrs. Amey against one Samuel Glover ; at the trial, the record in the action against the Sheriff having been put in evidence, Counsel for Long the defendant objected that there was a variance between it and the declaration ; the record, in reciting the judgment against Glover, describing him as “Samuel Glover the younger;" but the declaration styling him only “Samuel Glover,” as the subpæna there set out, commanded the production of a warrant, granted by the Sheriff of Surrey upon a fi. fa.“ between Eliza Amey plaintiff, and Samuel Glover defendant.” Lord Ellenborough overruled the objection. He said “the subpæna, as set out in the declaration, did not “give Glover his full description ; but it did not give him a wrong “description."
In Regina v. Hurley (c) Sugden, C., overruled a plea of nul tiel record to a sci. fa. upon a recognizance, because in the recognizance it was said to be taken before “ Joseph Barry, Master Extraordinary, county of Cork," whereas in the sci. fa. he was styled “ Joseph
Barry, Esq., of Cork;" and his Lordship relied on Pierson v. Fahy E. T. 1849.
Common Pleas. as an a fortiori authority in favour of his decision.
Whiteside, for the defendant.
In Kirke v. Sir John Parratt (a), where in the record the plaintiff was styled " John Kirke of London, citizen and saddler," and in the writ of error “John Kirke of London, citizen and salter,” the variance was held fatal. The case of Lepiot v. Browne (6), cited on the other side, was not a decision on plea of nul tiel record, and even there Holt, C. J., admits that where father and son are both called A B, by naming A B the father shall prima facie be intended, and the same position is laid down in Wilson v. Stubbs (c). In Lepiot v. Browne there was not, as here, a confusion in the plaintiff's pleadings between father and son of the same name.[JACKSON, J. It only decides that the plea in abatement was bad. The actual point there decided does not bear upon a case of nul tiel record-Ball, J. There is nothing here upon the record of the memorial which shows any relationship between the assignor and assignee Charles O'Malley-_JACKSON, J. And granting that they are strangers to each other, should not the pleader bave distinguished them as the record has done ?]—In O'Brien v. Whitlaw (d) in the sci. fa. the defendant was stated to be N W, of such a place, Esquire ; whereas in the record he is stated N W, of, &c., gentleman; Judge Jebb said, “no doubt the description is part of the name ; it makes him a different person ;” and the Court accordingly held that the plea was sustained. In Hozier v. Powell (e), an action of covenant for rent, the declaration stated a recovery suffered of the lands of “ Constable Hill,” it appeared that the lands named in the recovery were “ Constable Hills.” On plea of nul tiel record this was held a fatal variance ; PENNEFATHER, B., observing, “the question really comes to this, whether “Constable Hill” is necessarily the same word as “ Constable Hills ?” Where the declaration in Walters v. Mace (s) stated that the defendant went before “Richard Cavendish
(a) Dy. R. 172, 16.