« EelmineJätka »
twenty years old, when there has not been any pay. having made no affidavit of merits, and it appearing ment of interest, or anything to take it out of the that the plaintiff could not amend, he was allowed statute, except a written acknowledgment given to quash the writ. Lowe v. Hoare, 3 Ir. L. Rep. since the expiration of the twenty years. Brady 263, C.P. v. Fitzgerald, 1 Ir. L. Rep. 295, Q. B.
An affidavit, to ground a motion for a sci. fa. to An admission in the schedule of an insolvent of revive a judgment at the suit of a banking coma sum due on foot of a judgment, is an admission pany, made by the solicitor of the company, is not within the 40th section of the 3 & 4 W. 4, c. 27; sufficient unless the facts deposed to be within bis but liberty to issue the sci. fa. will not be granted actual knowledge. Bank of Ireland v. unless the affidavit grounding the application have 9 Ir. L. Rep. 266, Ex. a copy of the schedule containing the admission attached to it. Cockburn v. White, Bl. D. & 0.,
Pleading:]—Scire facias upon a judgment set138, Q. B.
ting forth an assignment by deed of the judgment
debt, according to the form of the statute in such Service. -Service of a scire facias to revive a case made and provided, “as by the memorial and judgment need not be personal. Hill v. Stawell, record of the same enrolled manifestly appears.” 1 Ir. L. Rep. 104, Q. B.
Plea, that no one witness to the memorial, who Service of this writ by throwing it into defen-was a witness to the deed of assignment, made an dant's yard through an open in the gate, was deemed affidavit at the foot of the memorial of the true pergood service under the circumstances of this case. fection of the deed of assignment and memorial Ib.
before the officer, &c., where the judgment was Substitution of Service.]-Service on the conu. entered secundum formam statuti, and that therefore sor of a judgment, who has absconded from the the judgment was not duly assigned secundum forcountry, of the conditional order for liberty to issue mam statuti. Held bad as amounting to a plea of a sci. fi. to revive a judgment, will be substituted uul tiel record. Watters v. Lidwell, 9 Ir. L. Rep. by serving his wife and son who reside upon his 362, C.P. property, and a receiver who has been appointed
To a scire facias on a judgment, the return over it in an equity cause. Molloy v. Clarke, 1 Ir. alleged that the conusor, at the tiine of the rendition L. Rep. 38, Q. B.
of the judgment, was seised of a descendible freeService of a scire facias was substituted on the hold, but did not aver it to be still subsisting. Plea sister of the heir of the conusor, who was residing in by the heir, that A. B. was seised in fee before the America. Johnson v. Wilson, 3 Ir. L. Rep. 273, issuing the scire facias, and being seised before the C. P.
issuing of the scire facias, to wit, on &c., demised Where the residence of the heir-at-law and one
to the heir for one year, and so from year to year, by devisee cannot be ascertained, the court will sub- virtue of which demise, which is still subsisting, the stitute service of a sci. fa. on the remaining devisees heir is still possessed, and that the conusor was not, resident in this country. Bell v. Fyan, BI. D. & at the time of the rendition of the judgment, seised 0.31, Ex.
of a descendible freehold still subsisting. Replica
tion, that he was seised at the time of rendition of Return to Writ.]-See SHERIFF.
judgment, modo et formâ, as in scire facius and reMoving on Sci. Fa.]--A party will not be per
turn stated. Quære, first, whether the replication mitted to move on a sci. fa. in a term it is not re- is bad for not averring the descendible freehold to turnable, unless he take the earliest opportunity of be still subsisting; secondly, whether the plea is bad applying to the court for liberty to do so; but a delay being a plea by the heir of non-seisin in the anceson the part of the plaintiff
, in not applying until late tor. Ib. in the term, was cured by the circumstance of the
Plea (to the same scire facias) alleging, that it is defendant having asked the plaintiff for time to stated in the memorial that the deed of assignment plead. Maley v. O'Malley, 5' Ir L. Rep. 1, C. P. bears date the 19th of June, 1843, and that it is not
stated in the memorial that the deed was perfected Setting aside Scire Facias.]-Where a judgment on any other day, as appears by the record of the of revivor and execution thereon had been set aside, memorial, and averring that the deed was not peron allegations of non-service and of payment, on fected on the 19th of June, 1843, but was in fact the terms of the plaintiff issuing another scire fa- perfected on another day, Held to be bad as amountcias, and trying an issue on a plea of payment at ing to a plea of nul tiel record. 16. the next assizes, the defendant undertaking not to A judgment, and by the executors of the conusee, bring any action whatever. The plaintiff having a judgment in debt obtained for the amount of the omitted to issue said seire fucias, the court con- debt secured by the original judgment, and of anfirmed the setting aside the scire facias and execu other debt; death of the debtor in execution under tion, and struck out the undertaking on the part of a ca. sa. upon the second judgment is no bar to the the defendant not to bring an action. Tuihill v. assignee of the original judgment having execution Unthank, 7 Ir. L. Rep. 205, C. P.
against the lands of the conusor. Ib. The plaintiff, being the personal representative The omission of the quod recuperet in a writ of of the surviving assignee of the judgment, was de scire facias to revive a judgment is bad on special scribed in the title of a demurrer to the scire facias demurrer. Moriarty v. Wilson, 1 Ir. L Rep. 52, C.P. as the assignee of the judgment, and the plaintiff Scire facias issued by the executors of a conusee having inarked judgment, the court set it aside, but of a judgment, recited and prayed execution of the allowed the plaintiff to amend. The defendant judginent, which was recovered upwards of twenty
years before the issuing of the writ. Plea, statute there any heir or heirs of the said A. D., nor of limitations, 3 & 4 W. 4, c. 27, s. 40. Replica- were there any tenants of any other lands or tenetion, a judgment of revivor recovered by themselves ments which were of the said A. D, at the time of within twenty years. Held by the House of Lords the rendition of the said judgment, or at any time that the plea was a sufficient answer to the claim as afterwards, within my bailwick, to whom I could stated in the declaration, and that the replication make known, as by the within writ I am commanded.” was bad upon general demurrer, being a departure Held, that there was no nisjoinder in the said writ, from the declaration. Farran v. Beresford, 5 Ir. L. and that the prayer of execution was not irregular. Rep. 487, Dom. Proc.
Held also, that the sheriff's return was bad in bay. À new right accrued with said executors by the ing restricted the return of the tenants to those who judgment of revivor. Ib.
were tenants of the lands during the life of the deSemble, the time of limitation, prescribed by the ceased conusor. M-Nevin x. Dolphin, 4 Ir. L. Rep. 3 & 4 W. 4, c. 47, s. 40, begins to run from the entry 406, C. P. of the original judgment, and not from the date of To a scire facias by the assignee of a judgment the judgment of revivor, except that where a new of Hilary Term, 1809, against the assignee of the right was conferred by the judgment of revivor the conusor, who had been a bankrupt, the defendant money sought to be recovered may be considered to pleaded that at the time of the rendition of the judghave been secured to them by that judgment, within ment, and from thence continually until the issuing the true meaning of the 40th section of the 3 & 4 of the commission, the conusor bad been a trader, W.4, c. 27, and the time, therefore, begins to run &c., and that upon the 1st of June, 1819, he had from the date of such a judgment in scire facias. Ib. been indebted to A. in £100, and being so indebted
In a scire facias at the suit of the assignee of the afterwards, to wit, on the day and year last aforepersonal representative of the conusor, the writ, after said, he became a bankrupt, and thereupon afterstating the recovery of the judgment, stated that “the wards a commission of bankruptcy issued against said D.F.(the conusee) is since dead, and afterwards him. Held, on special demurrer to the plea, that D. B. F., administrator of the said D. F. deceased, it sufficiently appeared that the bankruptcy occurred by his deed duly executed, the judgment debt and after the rendition of the judgment. Steroart v. damages aforesaid, according to the form of the sta. Beggs, 3 Ir. L. Rep. 379, Q. B. tute in such case made and provided to R. B., the A scire facias by the assignee of a judgment replaintiff, transferred and assigned, as by the said cited the recovery of the judgment, and that D. St. memorial, &c.” Held, upon special demurrer to this Q, afterwards by his deed duly executed, the judg. writ, first, it was not necessary to state the time of ment debt and damages aforesaid, according to the the death of the conusee; secondly, it was suffi- form of the statute in such case made and provided, ciently shown that the assignment was executed after to H. Fulton, transferred and assigned, as by the the death of the conusee ; thirdly, that it sufficiently memorial and record of the same in our court before appeared that administration to the conusee was us remains and appears. Held to be a sufficient obtained before execution of the assignment--the averment of title in the assignee, without specially document amounting to this, that D. B. F. being setting out the due performance of the requisites of administrator, assigned. Fourthly, the same aver- the 9 Geo. 2, c. 5. Creagh v. Fulton, 5 Ir. L. Rep. ment supplied the want of an averment that the 322, Ex. Ch. conusor died intestate, as it imported that D. B. F. Held, that the defendant having pleaded nul tiel was the legal administrator of the conusee, and record of the memorial of the assignment, that a whether he was so to an intestate, or administrator replication of tiel record and praying inspection, with the will annexed, is not material, and when was correct. Ib. the administration is not granted to the plaintiff, but Held, that the record of the memorial of the to the party through whom he derives, it is not ne- assignment not being on the record before the cessary to make profert of the letters of administra- Court of Error, the plaintiff in error, who assigned tion, or set out the particulars thereof. Fifthly, for error, that there was no such record of the methat it was not necessary to make profert of the morial, was bound to have an application on notice, assignment; and sixthly, that it is not necessary before the case came on for argument, for a writ of to specify the time of the entry of the memorial certiorari, to have the said record brought for inupon the roll. Barry v. Hoare, 4 Ir.L.Rep. 97, Q.B. spection. Ib.
A scire facias stated a judgment of 1825 for In a Sci. Fa. by an executor of the copusee, the £2000, and £2 ls. damages recovered in the court defendant was called on to show anything for binof the late King George IV. before our justices. self, why the plaintiff should not have execution Held not to be a variance either in the description against him, according to the form of the recovery, of the court or in the statement of the amount of without stating as executor. Held to be sufficient. the judgment. Farr v. Rutledge, 4 Ir. L. Rep. Hanyngton v. Cairnes, 5 Ir. L. Rep. 333, C. P. 405, c. P.
In a Sci. Fa. by the assignee of a judgment, it is A scire facias against a surviving conusor, and not necessary to make profert of the deed of asthe heir and terre-tenants of the deceased conusor, signment, or to show that the memorial was enand prayed execution against the former generally, rolled pursuant to the statute 9 G. 2, c. 5; or exeand against the lands which were of the latter, &c. cuted with the several requisites thereby prescribed. The sheriff at the conclusion of his return certified Dillon v. Hanlon, 5 Ir. L. Rep. 563, Ex. that “at the time of the rendition of the within The Sci. Fa. stated that J. D., on the confession judgment, or at any time afterwards during the life and acknowledgment of J. H., recovered a judgtime of the said A. D. that there are not, nor werel ment "against the said defendant." Held a suf
ficient averment of a recovery against J. H., with-in form, though it does not aver that the defendant out expressly averring the latter to be the defen- I was summoned to show cause why the plaintiff, “ as dant. Ib.
such administrator, should not have execution." An averment in a Sci. Fa. that the conusor Cronin v. Murphy, 1 Ir. Jur. 231, Ex. * died, and that A. H. became his executrix.” The practice of reviving judgments by nils in Held, on special demurrer, not to be too general, ejectment, is irregular. Ashley v. Ejector, 2 Ir. L. A. H. being styled in a subsequent part of the Rep. 264, Q. B. writ, executrix of the last will and testament of the The writ of sci. fa. was tested on the 25th of conusor. Ib.
November, 1837, and directed to the sheriff of C. A negative plea to a writ of Sci. Fa, ought not and recited a judgment of Michaelmas Term, 1806, conclude, either with a verification, or to the coun- by O. against W.; that 0. died, having by his will try. Cullen v. Sharkett, 6 Ir. L. Rep. 239, Ex. appointed two executors, who obtained probate and
No pleading to a writ of Sci. Fa. ought to con- assigned the judgment to the plaintiff; that w. elude to the country. 1b.
had died seized, &c., and the sci. fa. commanded In Sci. Fa. on a judgment a plea of non-seisin 'the sheriff to make known to the heir and terre. of the conusor, properly concludes with a verifica- tenants of W., &c. The sheriff returned that he tion. Clarke v. Lynch, 6 Ir. L. Rep. 240, (n.) C. P. had warned H. W., the heir of the conusor, and
A Sci. Fa. tested 6th of May, 1843, and directed certain terre-tenants within his bailiwick, naming to the sheriff of D., coinmanding him to make them. H. W. pleaded (per se) the 3 & 4 W. 4, c. known, &c., as before commanded. Plea, that the 27, s. 40. Replication, a judgment of revivor in present action or suit of Sci. Fa. was commenced Easter Term, 1819. Held, that this case was on, &c., and that a present right to receive the mo- governed by that of Ottiwell v. Farran, (2 Ir. L. ney secured by the judgment, &c., accrued to J. S. Rep. 110), and that the statute ran from the date twenty years before the commencement of the ac. of the revival. White v. White, 3 Ir. L. Rep. 118, tion or suit of Sci. Fa.; and that, at the time the note, Ex. right to receive the money secured by the judg Variance.] – The judgment commenced :ment so accrued to J. S., he was capable of giving “County of the city of Dublin ; to wit, H. D., of a discharge for the same; and that no part of the s, in the county of Galway, was attached to anprincipal money secured by the judgment, or any swer R. K., of 'Loughrea, in said county.” And interest thereon, was paid at any time within twenty the writ of sci. fa. commenced :-“ To the sheriff years before the issuing of the writ. Replication of the county of the city of Dublin, greeting, &c. -That on sundry times, within twenty years next Whereas, B. K. of Loughrea, in said county." Held, before the issuing of the writ, the defendant paid on plea of nul tiel record, that there was a fatal several sums on account of the money secured by variance in the description of cognizee of the judgthe judgment absque hoc. No part of the principal ment. Kelly v. Dolphin, 1 Ir. L. Rep. 352, C. P. money secured by the judgment, or any interest
A Sci. Fa. recited a judgment, “by reason of a thereon, was paid at any time within twenty years certain plea of trespass on the case, as for costs and before the issuing of the writ. Held, on special expenses.” The judgment on record was for demurrer, that this replication was bad. Birch v. 'damages, sustained by reason of the non-fulfilment Blennerhassett, 8. Ir. L. Rep. 394, Q. B.
of several assumptions and promises, and for costs Held also, that the plea could not be objected to and expenses. Held, upon a plea of nul tiel record, on general demurrer, for not stating whether an that this was no variance. Agricultural Bank v. original Sci. Fa. had issued ; it appearing to the Nugent, 5 Ir. L. Rep. 357, Q. B. court, from the record, that no original Sci. Fa. had issued. 16.
Judgment.]-See STATUTE OF LIMITATIONS.
A. having confessed a judgment, died, and a sci. Practice in the action of Sci. Fa. Ib. note. A Sci. Fa. recited a judgment for the not per- administrator of the conusee against the heir and
fa. to revive same having issued at the suit of the forming certain promises and assumptions. The judgment had heen entered on the money counts, the lands, and judgment was had upon the sci. fa.
terre-tenants of A.-B. was summoned as tenant of on plea of nul tiel record. Held—no variance. Held that the court could not look behind the Morrissey v. Walsh, 9 Ir. L. Rep. 293, Ex.
A Sci. Fa. to revive a judgment recovered to judgment in sci. fa., and that if B. had any title to secure punctual payment of an annuity. This cir- plead, he should have pleaded it to the sci. fa. cumstance was not stated on the Sci. Fa. Held to Keune v. Barry, 8 Ir. L. Rep. 211, Q.B. be no ground of objection on a plea of nul tiel re
A rule nisi to mark judgment will be granted cord. Haig v. Kirk, Bl. D. & 0. 251, Q. B.
against the terre-tenants, notwithstanding a plea Scire Facias by the executors of the cognisee.
“that A. is heir, and that no writ was issued to The defendant was called upon to show « where- summon him,” it being not verified by affidavit
. fore the plaintiffs should not have execution against Hogg v. Armstrong, I Ir. L. Rep. 178, Q. B. him,” according to the form of the recovery, with
A judgment of revival, of Trinity Term, 1823, out an allegation that the plaintiffs did so as es was ordered now (1840) to be enroiled as of that ecutors.” Profert was made of the letters testa- Term, though the original pleadings in scire facias mentary. Held, on special demurrer to be sufficient. were not forthcoming ; it appearing to the court Vance v. Brassington, 1 Ir. Jur. 8, Ex.
that the party had done all that he had to do, to An administrator cum testamento annero may
have the judgment regularly entered, and that it maintain a scire facias upon a judgment obtained was through an omission in the officer it had not durante minore ætate, and the sci. fa. is sufficient
been done. Martin v. M.Causland, 2 Ir. L. Rep. 201, C. P.
against the same incumbent. Held, that the sequesA personal representative residing out of the tration for non residence had the effect of suspendjurisdiction, will be ordered to give the defendanting the creditors sequestration, and that the bishop in a sci. fu. security for costs. O'Brien v. Upton, was entitled to apply the proceeds of the benefice, 4 I. L. Rep. 419, Č. P.
in the first instance in defraying the necessary exA sci, fa. against the heir and terre tenants is a penses of serving the cure, and in paying the costs personal action, within the provisions of the 3 & 4 which he has incurred in relation to his sequestraVic. c. 105, s 57, so that if a plaintiff enter a nolle tion. Middleton v. Moxwell, 1 Ir. Jur. 198, Q. B. prosequi against any of the terre-tenants served (Crampton, J., dissentiente.] with the sci. fa. they are entitled to their costs. A sequestrator is liable to account for an arrear M'Nevin v. Dolphin, 5 Ir. L. Rep. 329, C. P. of rent-charge which becaine due while he was in
possession. 16. II.-RECOGNIZANCE.
Where the possession of the sequestrator ended Pleading.]-Payment is a bad plea to a sci. fa. on the 5th of March, 1844, no apportionment of on a recognizance. Reg. v. Walker, 1 Ir. L. Rep. the rent-charge which accrued between the lst of 381, Ch., (Petty bag side.)
November, 1843, and that date, could be made so In a sci. fa. on a crown bond or recognizance, as to charge the sequestrator. Ib. Held, on plea of nul tiel record, that it is unneces A sequestrator is not liable for the gale which sary to set forth the condition of the bond or recog. became due previous to his appointment. Ib. nizance, it appearing from the uniform course of precedents in the office to be the practice to omit as its officer, and as such will make bim account
Account by.]—The court will treat a sequestrator the condition. The Attorney-General v. Upton, before it on a summary application. Waldron v. 7 1. L. Rep. 505, Ex.
Garrett, 1 Ir. L. Rep. 118, Ex. Semble, that such a practice is borne out by the
The court has jurisdiction to order a sequestrator, authorities. Ib.
appointed by the bishop pursuant to a levari, to
account before its officer. Garstin v. Williams, 3 SEARCHES.-See PRACTICE (JUDGMENT.)
Ir. L. Rep. 512, Ex.
Such account may be enforced by the defendant,
though the plaintiff has satisfied the judgment. Ib. SECURITY FOR COSTS. - See Costs.
The sequestrator having, with the knowledge of
the defendant, accounted in the Ecclesiastical Court, SEQUESTRATION AND SEQUES and specific over-charges having been pointed out in TRATOR.
such account, it was ordered that the account in the Sequestration when issued.]-A sequestration
Ecclesiastical Court be taken as correct with liberty baving issued in 1838 against a beneficed clerk on to the defendant to sur-charge and falsify it. lb. a judgment on a bond, and marked for the princi
It is no objection to an order on a sequestrator pal sum and interest then due, which sum was not to account that, during the time, he was sequestrator levied or paid until 1842. The court gave the plain: other courts of law. Ib.
in other causes under writs of lovari issued forth of tiff liberty to issue a new execution for the amount of the interest which bad accrued between 1838 | bound to account to bis successor for the proceeds
Upon the death of the bishop the sequestrator is and 1842, being short of the penalty of the bond of the benefice which became due after the death of Thacker v. Williams, 6 Ir. L. Rep. 97, C. P. Where a beneficed clergyman had been discharged 460, Q.B. [See Waldron v. Gurrett, 1 J.& C. 69.]
the bishop. Hogg v. Archbp. of Tuam, 6 Ir. L. Rep. as an insolvent debtor, the court held that a judg
The Court of Queen's Bench will not direct a ment creditor whose debt had been returned in the schedule might legally issue a fi. fa. for the purpose what he has done under the writ of levari. Walker
sequestrator to account until the bishop certifies of obtaining a return of nulla bona, and thereupon v. Darcy, Bl. D. & O. 187, Q. B. issue a levari de bonis ecclesiasticis. Mills v. Horner, 7 Ir. L. Rep. 212, C. P.
See, as to the difference of the practice in the
Courts of Queen's Bench and Exchequer of issuing Death of bishop pending sequestration.]—Where writs of sequestration Walker v. Darcy. Ib. a levar i bad been sent to a bishop, and he had issued A judgment creditor, who had obtained the sequesa sequestration thereon. Held, that on the death of tration of a benefice, is entitled to be paid the fruit that bishop, the levari and the sequestration issued of his execution in priority to a claim of the debtor's thereon were in full force, and it was not necessary successor in the benefice, for the value of delapidato revive the same. Held also, that on the death tions found under a commission of delapidation. Caof the bishop his successor became responsible for sey v. Horner, 10 Ir. L. Rep. 221, Q B. [Baker the due application of the profits of the benefice v. Swayne, 1 Jon. & Car. 231, is not law.] under such levari and sequestration Hogg v. Arch The court granted a writ of sequestration to the bishop of Tuam, 6 Ir. L. Rep. 460, Q. B. [See bishop without a writ of fi. fan it appearing from as to removal. Dawson v. Symmons, 12 Jur. 1072, the records of the court that the sheriff (to whom Q. B.]
such writ, if issued, must have gone) had recently reA judgment creditor issued a sequestration against turned nulla bona to a fi. fa. sued out of this court an incumbent, and thereupon went into possession against the defendant by another creditor. Smyth of his benefice. The bishop of the diocese subse- v. Armstrong, 10 Ir. Li Rep. 447, Ex. quently issued a sequestration for non residence Where a sequestrator has been ordered to account
for the sums which he has received, he ought not, SETTING ASIDE PROCEEDINGS-See pending the confirmation of the Master's report, to
PRACTICE pay over to the bishop the money in his hands; and if he does the court will, notwithstanding such pay. ment, compel him to bring in the amount. Gal
SHERIFF-See INTERPLEADER. TRESPASS. braith v. Pilkington, 10 Ir. L. Rep. 473, Ex. Sheriff
of the city of Dublin, 3 & 4 Vic. c. 108.]—
By the 26th G. 3, c. 19, (Ir.), constituting the balSERVANT AND MASTER.
last corporation of Dublin, the sheriffs of the city
of Dublin, for the time being, were appointed memIn an action on a special contract for dismissing bers of the said body. The Municipal Act (3 & 4 without notice a farm-servant who had been hired Vic. c. 108), though it alters the mode of appointfor a year. Plea, first, that the plaintiff did not ment of the sheriff, does not affect his right to be a properly conduct himself, and did not obey the law member of the Ballast Board. Such right is inciful and reasonable commands of the defendant, in dent to his office of sheriff, and he holds the same relation to the services to be performed ; secondly, position the two sheriff's formerly bad. Reg. v. that the plaintiff, whilst in the service of the de- Borongh, 7 Ir. L. Rep. 57, Q. B. fendant, was intoxicated, and incapable of attending to the business of the defendant; thirdly, that the
Practice, and duties of Sheriff generally.]—The plaintiff, whilst in the service of the defendant, had Sheriff's levied a certaio sum under an execution, performed the services in a negligent and careless and before they paid it over to the plaintiff, received manner. Held, that the first was bad on special two notices from creditors of the defendant, stating demurrer, as being uncertain, and too general; that the latter was a bankropt, and cautioning them Held also, that the second and third were bad on against paying the said sum to the plaintiff; and it general demurrer, as the facts alleged by those appeared that the sheriffs bad delayed the execution pleas did not amount to a justification of the dis of the writ, and sale of the defendant's goods, and missal. Wilson v. Brereton, 5 Ir. L. Rep. 466, Q. B. did not appear to have acted bonâ fide. The court
refused, with costs, a motion by the sheriffs to lodge
the sum in court till the adverse claims were de. SET OFF.
cided. Ramsden v. Coury, 2 Ir. L. Rep. 175, Q.B. H. J. H. sued as accommodation-acceptor of a A sheriff, against whom an order for a fine, for bill of exchange drawn on him by G., the defendant, not returning a writ of habere facias possessionem for £50 in the usual form, and averred that he was had been obtained, and under which possession had damnified to the amount thereof with interest. The been given, applied for a duplicate writ, and stated declaration contained the usual money counts, and in his affidavit that the original had been lost, and the bill of particulars claimed only the amount of could not be found since the execution of it. His the bill and ivterest. The defendant pleaded the motion was granted upon payment of all costs. general issue, and gave notice of set off. At the trial Donnelly v. Malone, 2 Ir. L. Rep. 262, Q. B. defendant's counsel admitted the plaintiff's claim as The sheriffs levied an executiou in July, when set forth in the special count, (the money counts not they received notice from a third party, a creditor being relied upon,) and gave the following memo- of the defendant, not to pay the amount, on an alrandum, stamped with a penalty and an agreement legation that the defendant had committed an act stamp, in evidence of the set off: “My dear Sir- of bankruptcy, and that it was intended to have a You have given me this day £280, which I under-commission issued, but no steps were taken in this take to return to you next week. This money you respect. On the sheriff moving that the time for have given me on behalf of Sir G. G. out of the returning the fi. fa. be extended, offering to lodge trust-noney of Miss G., which you hold for her.” the amount levied in court. The court refused the “ H. J. H. To Sir G. G." Held, that the defend- motion, but without costs, there being no collusion. ant's set off should be allowed, as the plaintiff' might Power v. O'Brien, 4 Ir. L. Rep. 8, Č. P. have recovered under the money counts, and he could The special bailiff of a sheriff need not employ not deprive the defendant of his set off by declaring an auctioneer, or have a license to act as such himspecially. Hamilton v. Goold, 1 Ir. L. Rep. 171,Q.B. self, for the purpose of selling under civil bill de
An application for further particulars must be crees. Reg. v. Martin, 4 Ir. L. Rep. 153, Q. B. upon affidavit. Wilson v. Ramsay, 1 Ir. L. Rep. Quære, is the 46th section of the 6 & 7 W. 4, c. 37, Q. B.; and see Acc. Darley v. Murphy, 2 Ir. 75, repealed by the 1 Vic. c. 43, s. 3. Ib. L. Rep. 381.
Where it had been sworn that a writ had been In an action by executors the defendant served a delivered to the returning officer of the sheriff, and notice of set off, stating among other credits, certain a conditional rule entered requiring the sheriff
' to acceptances by defendant of the drafts of the testa- return it ; the court refused to discharge the rule tor, the dates of which were furnished, the court on an affidavit of the sub-sheriff
' denying the receprefused an order for further particulars of set off. tion of the writ by him or the sheriff
. Held also, Cower y. Stephens, 6 Ir. L. Rep. 124, Ex. that the sheriff could not object to the regularity of
The proper means of procuring such information the writ for want of the indorsement required by the is by a bill of discovery. 16.
43rd general rule, on the ground of its not baving If a bill of costs be pleaded as a set off, the court been stated in the affidavit on which the conditional has a discretion to order them to be taxed, without rule was obtained, that it had been so indorsed. the plaintiff giving an undertaking to pay the amount. Knipe v. Patterton, 5 Ir. L. Rep. 181, Q. B. Alker v. Dunne, 9 Ir. L. Rep. 105, Q. B.
Where the sheriff' deducted, from the proceeds of