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attended with great weight, and, if he be right, the onus was thrown E. T. 1849.
Common Pleas. upon the plaintiff to show that the present case is an exception to the general rule. The record of the memorial of the assignment of the judgment states it to have been assigned to Robert Boyd and LINDSAY. “Charles O'Malley, junior, of Temple-street, in the city of Dublin, Esquire, Barrister-at-law.” The scire facias, purporting to recite that memorial, describes the assignment to have been made to Robert Boyd and “ Charles O'Malley, of Temple-street in the city of Dublin, Barrister-at-law,” omitting the words "junior" and “Esquire ;” and certainly prima facie, according to Comyn's exposition of the law, this is a material variance: it is however insisted that this omission does not fall within the general rule as stated by him.
It is here perhaps material to advert to the case of Lepiot v. Browne (a), in which it is laid down by Holt, C. J., that “ If father " and son are both called A B, by naming A B, the father prima " facie shall be intended.” Apply that here : Charles O'Malley being described as junior in the judgment, imports that he is the son. In the scire facias, being named without that addition, he must be understood to be the father. If this be so, primâ facie the Charles O'Malley mentioned as assignee in the judgment, and the Charles O'Malley mentioned as assignee in the scire facias are different personages. But it is said, on the part of the plaintiffs, that although primarily the absence of that addition may lead to the supposition that the father is the person meant to be described, yet the defect may be supplied aliunde, and that the specification of the residence and profession sufficiently points out the person named in the scire facias as assignee of the judgment to be identical with the person named as assignee in the memorial, and therefore that the omission of the words “ Junior” and “Esquire” is immaterial. It must be observed here, that in point of fact there is nothing upon the record to show that the assignor Charles O'Malley is father of the assignee Charles O'Malley, and therefore the Court cannot intend that he is so. Had it been Charles O'Malley of Hawthorn Lodge, senior—had there been any thing indicating that he was the father of the assignee, this
(a) i Salk. 7.
E. T. 1849. matter would not perhaps rest upon assumptions ; but there being no Common Pleas.
such indication—for I cannot consider the fact of one being of HawO'MALLEY
thorn Lodge, and the other of Upper Temple-street, any such—we LINDSAY. must regard them as mere strangers. But the memorial of assign
ment speaks of Charles O'Malley the assignee as junior, and he must be taken to have been a person to whom that description was applicable; thus it is imported that there was some Charles O'Malley, senior, whosoever he may have been. True, the memorial also describes the assignee as “of Upper Temple-street, in the city of Dublin, Esq., Barrister-at-law," and so does the scire facias; but there is nothing in the scire facias to show that the unknown Charles O'Malley senior may not have also been a Charles O'Malley of Upper Temple-street, in the city of Dublin, Esquire, Barristerat-law, and moreover, he may have been the very person against whom this scire facias has been issued, for aught appearing upon it to the contrary. In other words, we have nothing to lead us to conclude that the assignee Charles O'Malley named in the memorial is the assignee Charles O'Malley named in the scire facias. However, we have been pressed by the Counsel for the plaintiffs with the authority of Lord Ellenborough, in Amey v. Long (a), where the declaration styled a person merely “Samuel Glover,” whom the record described as “Samuel Glover the younger," and his Lordship held it not a variance. This case at first struck me as of some weight in favour of the plaintiffs, but it must be recollected that it runs counter to the current of authorities, and that it was not, as here, on nul tiel record pleaded, but only a Nisi Prius decision, in Campbell's Reports, it is true, which I admit to be one of the most valuable collections of Nisi Prius cases that we possess. On plea of nul tiel record, and on trial at Nisi Prius it is by the production of the record that the variance is established, so far the proceeding in both cases is similar, but where the question has arisen at Nisi Prius, perhaps this distinction may have been suggested, that a matter, which, on nul tiel record constitutes a fatal variance, the attention of the Court being thus specially drawn towards the discrepancy, may or may not do so on a trial at Nisi Prius. And
(a) i Camp. 14.
at such a distinction Lord Ellenborough would seem to hint in E. T. 1849.
Common Pleas. Amey v. Long, when he says, “ Had there been two causes in our
O'MALLEY “which there were two persons defendants of the same name, dif
0. “ferently described, some ambiguity would have arisen from the LINDSAY. “omission, and the objection would have been fatal ;” that is, as I interpret his observations, “ Had it appeared upon evidence on the “ trial that there were two causes in which there were two per“sons defendants of the same name, &c., had you shown that “there were two such persons as you had an opportunity of doing “ if it were the fact, then I should have held it a variance, but "you have not availed yourself of such opportunity, I will not “ hold it by intendment to be a variance.” I cannot understand Amey v. Long to be sustainable upon any other footing, and if that be so, it is not applicable to this case, which is on nul tiel record. But in the second volume of the same reports I find another decision, Rex v. Leefe (a), by the same Judge ; an indictment for perjury having stated that “A B and C D were returned to serve as burgesses for the said borough of New Malton,” this was considered as a description of the indenture of return; and the borough being in the indenture of return styled “ The borough of Malton,” Lord Ellenborough said, “ Here it is not enough that the borough " is known as well by one name as the other. I think the variance “is fatal, and the defendant must be acquitted. Now, if I am not mistaken, this case is quite opposed in principle to his Lordship’s ruling in Amey v. Long: I do not see how they can be reconciled, although they may be accounted for as being decisions at Nisi Prius ; possibly both of them may be wrong, but certainly both cannot be right.
We next come to the Irish cases cited for the plaintiffs—Pierson v. Fahy (6) and The Agricultural Bank v. Nugent (c); in both instances the objection of variance was made on plea of nul tiel record, and overruled; in the latter Crampton, J., follows Burton, J., in the former, in laying down that there must be a positive inconsistency in order to constitute a variance fatal on plea of nul (a) 2 Camp. 141.
(6) Jebb & Bourke, 42. (c) 5 Ir. Law Rep. 357.
E. T. 1849. tiel record. We do not find any such principle laid down in any Common Pleas.
English text-book or reports, or in any other case before the Irish O'MALLEY
Courts of Law. It is opposed to the authority of the Court of
Some cases which occurred at the Petty-bag side of the Court of Chancery have also been mentioned in the argument. One was Regina v. Hurley (6); but I do not think that it bears upon the present case. Another Chancery case, Regina v. Naghten (c), was also mentioned. The Court there relied upon two grounds ; first, that there was only a clerical mistake. Now, with all the respect due to the eminent Judge who presided there, I should say that almost all the cases of fatal variance which the books contain are instances of clerical errors, and we do not find either Comyn or
Rolle making any exception in favour of such errors. The second E. T. 1849.
Common Pleas. ground was that “Mallard” is idem sonans with “Mallow," because
O'MALLEY it was said that it may be so pronounced in that particular district. This ground however I understood the plaintiff's Counsel as declin- LINDSAY. ing to support ; and I admit that I too should find some difficulty in acquiescing in it, inasmuch as upon plea of nul tiel record nothing can speak but the record itself. The possibility of a local pronunciation of which the Court had no judicial knowledge, and of which it could merely conjecture, was not a sufficient explanation of such a variance as that which there existed between the scire facias and the record; but even supposing that, upon the ground of identity of sound, Regina v. Naghten be good law, limited solely to that view of it, the case has no application whatsoever here.
We have carefully considered the case at bar, and the result is, that in our opinion the plea of nul tiel record has been sustained.
There has been some contrariety of opinion in the modern determinations upon the question of variance or no variance. But I think that the conclusion to which we have come is the safest at which we could have arrived, and in accordance with the previous decisions of this Court, and with the authority of the ancient textwriters and reporters who have treated of this subject. It is right to hold parties bound to set out, with strict accuracy, records which they profess to state correctly ; and we ought not to open the door to infringements of this rule. If we allow of departures from the record, particularly in description of persons, we may expose the officer of the Court who executes its judgments, to very great loss in the attempt to discharge his duty. A very hard case-Jarmain v. Hooper(a)—was cited, as to a Sheriff who was held liable for a mistake caused by the fact that a father and son were not sufficiently distinguished from each other.
Now, I think that this Court ought to take care that its records are so set forth as not to involve its oslicer in such difficulties as