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E. T. 1849. Baron Waterpark, of Waterfork, in, &c.," and the proof was, that Common Pleas.
as he went before “Richard Cavendish Baron Waterpark, of WaterO'MALLEY
park, in, &c,” the Court, on motion to set aside a nonsuit, held that the allegation in the declaration was a description of a name of dignity, and therefore that this was a fatal variance. This Court held it to be a fatal variance from a judgment confessed to A B, Esq., to describe him in the scire facias as A B, farmer: Donohoe v. Gibbons (a). A similar ruling was made in Kelly v. Dolphin (b); there a scire facias to the Sheriffs of the county of the city of Dublin, recited—“Whereas B. Kelly, of L. in the said county, &c.;" but the judgment ran thus—“County of the city of Dublin ; “H. J. Dolphin, of S. in the county of Galway, was summoned “to answer B. Kelly, of L. in said county;" on plea of nul tiel record the defendant succeeded. In Tilly v. Norton (c), where a judgment was had against J. H. N., of, &c., attorney-at-law, and a scire facias upon it described him as Esquire; on nul tiel record the variance was held fatal.
The observations of Tindal, C. J., in Cox v. Brewer (d), show that he and Parke, B., thought that a greater degree of particularity is necessary in scire facias, which “is a quasi continuation of a matter of record,” even than in actions of debt upon a judgment[BALL, J. Farran v. Ottiwell (e) and Farrell v. Gleeson (f) hold that a new right accrues on revivor by scire facias.]—Only for the purpose of saving the plaintiff's claim from the operation of the Statute of Limitations. The adjudication on a scire facias is an award of execution, or at most a judgment of execution, and not a judgment to recover: Phillipson v. Mangles (g). It is difficult to comprehend the drift of the decision in Regina v. Hurley (h); one of the points which appears to have been resolved was, that although the omission by the scire facias to set out the condition of the recognizance is wrong, yet that the practice of pleading badly
in this respect, in the Court of Chancery, having been inveterate E. T. 1849.
Common Pleas. ever since the year 1789, it is now consecrated by antiquity, and
O'MALLEY not to be shaken by pleas of nul tiel record.
Then again, as to the supposed misdescription which there LINDSAY. was allowed to pass current; Joseph Barry was styled Esquire as well in the body of the recognizance as in the scire facias ; it was the note at foot of the recognizance only which omitted his addition of Esquire; that note is no part of the record ;* therefore, the ruling of the Court on that point cannot touch the present argument.
Amey v. Long (a) was only a Nisi Prius decision; and even there Lord Ellenborough thought that, had there been two persons of the same name, ambiguity would have arisen and the variance been fatal. Counsel also mentioned Purcell v. M‘Namara (6).
J. D. Fitzgerald.
In The Agricultural Bank v. Nugent (c) the scire facias recited a judgment " by reason of a certain plea of trespass on the case, as for costs and expenses.” The judgment on record was for damages sustained by reason of the non-fulfilment of several assumptions and promises, and for costs and expenses ; and this was held no variance; Crampton, J., observing, that there must be “an actual inconsistency, not a possibility of a variance.”—[BALL, J. The dictum in that case is professedly founded upon Pierson v. Fahy, and must share its fate, whatever that may be.]—Some of the cases have gone to an absurd length in favour of pleas of nul tiel record upon variances, and of these Hozier v. Powell (d) is a flagrant instance.[Jackson, J. Good sense forms the basis of all this particularity. How can the Court say that it is not material to insert this word "junior" in the scire facias ? -Ball, J. It may be the very word which distinguishes him from twenty others of the same christian and surname. Any one acquainted with the western province of Ireland can vouch for the possibility of its being so.]—Although a
E. T. 1849. title of dignity, such as Knight or Baronet, &c., may be a part of a Common Pleas.
mans name, yet Esquire is not so: Rex v. Bishop of Chester (a): O'MALLEY
nor is Captain : Green v. Waller (6): and much less is the desLINDSAY. cription of senior or junior: 2 Vin. Ab. p. 89, tit. Addition, pl. 10,
citing Year Book, 39 Hen. VI., 46. If not part of the name, but only addition, it is not matter of variance; of late it has not been usual to allow trivial and technical objections to prevail where the alleged variance arises from mere misprision of clerk. In Regina v. Naghten (c) “Mallard” was held to be idem sonans with “Mallow.”—[BALL, J. Not in this country, surely, whatsoever the pronunciation may be in some parts of England.]—Conceding that the decision cannot be supported on the supposed identity of sound, yet it is well founded upon the ground of there being a mere misprision of clerk. If father and son have the same name of baptism and surname, and a writ of scire facias issue against the son without the addition of “the younger," primâ facie the father is intended. But this is only a primâ facie intendment; and if the Sheriff take the father's goods under the writ, and to an action of trespass by the father plead that the scire facias was issued against him, the prima facie intendment may be rebutted by proof that the writ issued against the son: Jarmain v. Hooper (d). Tindal, C. J., seemed to think that the writ de identitate nominis does not apply to a simple taking by a plaintiff of the wrong person or goods, and that, even if it did, it would not take away the right to bring trespass also. Now here that case has a double application, it shows that the prima facie inference which the defendant seeks to draw, that “ Charles O'Malley” means “Charles O'Malley, senior,” may be rebutted, ex. gr., by the distinctive marks of residence and profession; and that if we proceed against the wrong person he can have an ample remedy. Counsel also mentioned Stoddart v. Palmer (e); and Phillips v. Shaw (f).
R. M-Causland, in reply.
E. T. 1849.
Common Pleas. In Blackmore v. Flemyng (a), which was an action of debt upon camera
O'MALLEY a judgment, the defendant pleaded nul tiel record. On production o of the record it appeared that in the former cause the defendant was LINDSAY. sued as the “Right Honourable Hamilton Flemyng, Earl of Wigtown,” having privilege of Peerage ; in this action he was called “Hamilton Flemyng, Esquire," commonly called Earl of Wigtown, without noticing that the first action was against him as a Peer. The Court held this to be a failure of record.—[Ball, J. And I cannot perceive any actual inconsistency in that case, such as, on behalf of the plaintiffs, it has been alleged, pervades all the instances in which variances have been held fatal.]—In Rastall v. Stratton (6) and Readshaw v. Wood (c) variances were also held fatal.
In this case of O'Malley v. Lindsay, the plea of nul tiel record has been pleaded to the scire facias, on the ground of variance between its contents and those of the judgment on which it is issued. Some authorities cited in the very able arguments on both sides appeared to us to require consideration. We have looked into those authorities, and also into some others. The doctrine on this subject is laid down in Comyn's Digest, tit. Record, C:-“If a man "pleads nul tiel record, and there be a material variance between “the record itself and the record pleaded, it will be a failure of the “record.” And in 1 Starkie on Evidence, 2nd ed., p. 430 ; 3rd ed., p. 488:-“In debt on a judgment a variance as to the name of any “party, his abode, or addition, will be fatal on nul tiel record "pleaded.” And for this position he assigns as his authority 1 Rolle, p. 754, 1, 40. Mr. Smythe, in his note to Kelly v. Dolphin (d), says “that he was unable to find any such statement or any thing like it in any part of Rolle's Abridgment.” However, on referring back to Comyn, tit. Record, C., I find him saying that it will be a material variance “if the name of any party, his abode or addition varies ;” and for this he depends on the same authority as
E. T. 1849. Starkie, but refers to it more correctly, viz., 1 Rolle, p. 754, 1, 5. Comnion Pleas.
The passage there is :_“If the writ of error abate by misprision O'MALLEY
“ of the name of any party, there no writ of error que coram vobis
(a) Dyer R. 173, 16; Vaillant's ed. 173, 6.
(C) 2 Jones Ex. R. 642. (d) Smythe R. C. P. 146.
(e) Smythe R. C. P. 147. (f) Smythe R. C. P. 469.
* Where “Franklyn, a citizen of London, brings a writ of debt against a woman as executrix to one B, and recovers, &c., and then the said woman sues a writ of error from the Chief Justice of the Common Pleas to cause the writ to come into the King's Bench; whereupon the record was commanded into the King's Bench, and the Justices of the King's Bench view the writ by which the record comes before them, and the writ is false ; for the writ was of a record which was between the said woman and the said B, her testator; whereas it should be between the said woman and the said John Franklyn. And therefore Babington, C. J. (Com. Banc.), says, that the Justices of the Queen's Bench beld, that inasmuch as it came in without warranty all is void, since no such record is in the Queen's Bench, but the record remains here in the Common Pleas,” &c., &c.