LAW INDEX

TO THE

Irish Jurist;

INCLUDING

A DIGEST OF THE CASES DECIDED IN THE

Courts of Common Law in Ereland,

AS REPORTED IN THE FIRST TEN VOLS. OF THE IRISH LAW REPORTS.

The letters at the conclusion of each paragraph indicate the titles of the Reports digested, thus-Ir. L. Rep., Irish Law Reports:-Q. B., Queen's Bench;-C. P., Common Pleas ;-Ex., Exchequer ;-Ex. Ch., Exchequer Chamber;-D. P., House of Lords;-Com. C., Commission Court ;-Bl. D. & O., Blackham, Dundas, and Osborne ;-H. & B., Hudson and Brooke ;-Jon., Jones' Exchequer Reports ;—J. & S., Jebb and Symes; -J. & C. Jones and Carey.

The four last Reports, being contemporaneous with the first two volumes of the Irish Law Reports, are occasionally referred to.

ABATEMENT-See PRACTICE.

Pleas in. See CRIMINAL LAW. Pleading at

AW.

ABDUCTION-See CRIMINAL LAW.

ACCEPTANCE-See BILL OF EXCHANGE.

ACCORD & SATISFACTION-See PLEADING. To the general indebitatus counts, the defendnt pleaded that the promises were made jointly ith one T. P. H. and the defendant, and that the laintiff sued the said T. P. H. for not performing he identical promises in the declaration mentioned; nd the jury then assessed the damages of the plainff for the non-performance of the said promises, hich were the same identical promises in this delaration mentioned, at £350, and the said T. P. H. aid and satisfied the said sum so assessed, and the aid plaintiff then accepted the same in satisfaction nd discharge of the said damages. The plaintiff eplied that he did not accept and take the said onies in the said last mentioned plea in that bealf alleged, in satisfaction and discharge of the aid causes of action in the said declaration men

oned. Held, on special demurrer, that the repliation was bad, not being a direct traverse of the lea, but that the plea was bad, not being an answer the declaration. Small v. Drummond, 4 Ir. L. lep. 92.

ACTION-See ASSUMPSIT, CASE, COVENANT,
DEBT, EJECTMENT, REPLEVIN, TRESPASS,
TROVER.

had been dishonoured, agreed to take one half in
Where it lies.]-Where A. holding B.'s bill which
cash, and a renewal for the remainder, upon the
terms of C., who was a party to the arrangement,
guaranteeing the payment of the renewal, and having
been paid the half in cash, gave up the bill; C. having
afterwards refused to guarantee payment of the re-
newal. Held, that an action on the case for deceit
lay against C., and that it was not necessary his
promises should be in writing. Barrett v. Hynd-
man, 3 Ir. L. Rep. 109.

The declaration stated that B. (the defendant) wrongfully, maliciously, and without any probable cause, procured A. (the plaintiff) to be arrested and imprisoned, under pretence of a decree in the Assistant Barrister's court, for the sum of £10 debt, and 6s. costs, by the procurement of the defendant in the name of one C., but without the authority, consent, or knowledge of said C., and to be kept and detained in prison for the space of six months. At the trial it appeared that B. had caused A. to be served in the name of C. as the plaintiff therein, with a civil bill for "£20 due for timber and slates, ACCOUNT STATED-See ASSUMPSIT. DEBT. sold and delivered by C. to A., which A. promised TITHE COMPOSITION.

ACCOUNT-See ELEGIT. SEQUESTRATOR.

to pay, and other £20 due on foot of an account

stated and settled by and between C. and A. which sum A. promised to pay." A decree was obtained thereon "in the sum of £10 for timber and slates, sold and delivered by C. to A." under which decree B. procured A. to be arrested. For the defendant it was contended that the civil bill was void, as it included two demands, which together exceeded the jurisdiction of the Civil Bill Court; that the decree founded thereon was also void, and that the action should therefore have been trespass and not case. Held, that without deciding whether trespass would or would not lie, an action on the case could be sus

A motion to refer an affidavit for prolixity is too late, after the application in support of which the affidavit was made is disposed of. Kenney v. Ay¡mer, 6 Ir. L. Rep. 203, Q. B.

Jurat.]-The jurat of an affidavit must state that it was sworn before a commissioner of the Court Creal v. Dickson, 1 Ir. L. Rep. 375, Ex. Dowl. & L. 807; Graham v. Ingleby, 1 Exch. Rep. [Menden v. D. of Brunswick, 4 C. B. 321; 4 651.].

It is not incumbent on the officers of the superior

tained irrespectively of the question as to the vali-courts in an affidavit made before them by an illitedity of the civil bill process, inasmuch as the decree rate person to state in the jurat that the affidavit obtained thereon was for a sum within the juris- Acheson, 8 Ir. L. Rep. 184, Ex. was truly read and explained to him. Franks v diction of the Civil Bill Court, and as it was not

competent for B. to avoid his own acts by setting up the nullity of the civil proceedings. Ryan v. Shee, 7 Ir. L. Rep. 536, Ex.

Quære, if it had appeared that the decree had been obtained against a third person, might it not have been so used against the plaintiff as to enable him to maintain the present action against the defendant. 16.

An Act of Parliament empowered vestries to present sums for certain purposes to be raised off the inhabitants, and to appoint proper persons to applot and levy, and to allow them poundage on the sums so applotted and levied. Held, that the persons so appointed could maintain debt for the sums applotted. Brady v. Bellew, 6 Ir. L. Rep. 348, C. P.

To issue Scire Facias.]-See SCIRE FACIAS. Intitling.]-Affidavits must be fully entitled with both the Christian and surnames of plaintiffs and defendants. Lewis v. Lawton, 5 Ir. L. Rep. 135, Ex. [Cobbett v. Oldfield, 16 M. & W. 469.]

Prolixity.]-An affidavit on the law side of the Exchequer cannot be referred for prolixity, without an order of the court, obtained on motion. Kavanagh v. Sexton, 1 Ir. L. Rep. 236, Ex.

An affidavit sworn before the Chargè D'Affaires, though he be not authorized under the 6 Geo. 4, c. 87, will be received. Nimmo v. Codrington, Bl.

D. & O. 3, Ex.

Service of Notice.]-Affidavit of service of notice of motion should state that the notice was served at the registered lodgings of the attorney, and not at his dwelling-house. Pepper and another v. Newen ham, 1 Ir. L. Rep. 9, Q. B.

The omission of the hour at which the rule for judgment was served is not such an irregularity as will vitiate the subsequent proceedings; there being no allegation that it was served after the hour scribed by the 32 G. R. 1832. Farrell v. Elly, 6 Ir. L. Rep. 147, C. P.

pre

Using.]-Where affidavits are irregularly sought to be used and it is plain the court would, on applica tion, have permitted their use. The court will permit them to be used without putting the parties to the expense of an application. Anonymous, 2 Ir. L Rep. 167, Q. B.

Semble, an affidavit entitled in one court cannot be used in another, though filed and sworn before the proper officer of the latter, and though attested copies have been taken out by the party against whom they were used. Perrin v. Bullen, 6 Ir. L. Rep. 130, Ex.

Affidavit sworn before a foreign authority.]—On a motion for liberty to issue a scire facias to revive a judgment, the affidavit was sworn before President of the Civil Tribunal, and the signature of the plaintiff, attested by the Mayor and Sous Prefet of Verdun in France; and the French Consul resident here by affidavit stated that there was no British Consul or Notary Public resident in Verdun, and that the Civil Tribunal was a recognized Court of Justice, and he also verified the seals attached to the affidavit; the order was made. Howzelle v. Watson, 9 Ir. L. Rep. 40, Ex.

An affidavit sworn before the Chargè D'Affaires will be received though he be not authorised to take affidavits under the 6 Geo. 4, c. 87. Nimamo v. Codrington, Bl. D. & O. 3, Ex.

Commissioners for taking affidavits.]-When a commissioner for taking affidavits neglected to enrol the commission upon his appointment the court allowed it to be enrolled nunc pro tunc, in order that the suitor should not be prejudiced by such neglect. Symes v. Ejector, 4 Ir. L. R. 381, Q.B.

The court will not grant an application for the appointment of a cominissioner for taking affidavits unless there be an attorney in attendance who will vouch for the petitioner. In re Hinton, 10 Ir. L. Rep. 79, Ex.

An attorney will not be appointed a commissioner for taking affidavits, though the commissioners of the locality for which he seeks the appointment consent thereto. In re Loughnan, 9 Ir. L. Rep. 447, C.P.

AGENT-See PRINCIPAL ANd Agent.

AGREEMENT-See CONTRACT, DEED,
Landlord and Tenant.

AMENDMENT.

I. PROCEEDINGS in general.
II. PROCEEDINGS IN EJECTMENT.

I. PROCEEDINGS IN GENERAL.

go to trial; that in advising proofs for trial the mistake was discovered which it was now sought to remedy. The application was held to be too late. Hughes v. Parker, (2 Ir. L. Rep. 282, Q. B.)

The court allowed a plea to be amended after argument and judgment upon the demurrer, the question being doubtful, though there was no positive affidavit of merits. tive affidavit of merits. Hoyte v. Hogan, 2 Ir. L. Rep. 331, Q. B.

Where a scire facias did not issue until after the expiration of 20 years from the entry of the judgment, although a conditional order for liberty to issue it had been obtained before the expiration of that period, and the defendant pleaded two pleas under which he could avail himself of the 8 Geo. 1, cap. 4, and also two other pleas for the purpose of relying on the 3 & 4 W. 4, c. 27, and a special deThe court murrer was taken to the latter pleas. refused to permit them to be amended upon any terms, there being no affidavit of merits, and it appearing that the effect of the proposed amendment would be to enable the defendant to contend that the plaintiff must not only apply for and obtain liberty to issue the scire facias within 20 years, but that it must issue within that time, or the judgment will be barred by the 3 & 4 W. 4, c. 27. Graham v. Shaw, 1 Ir. L. Rep. 373, Ex.

Amendment of Process.]-A plaintiff having sued out writs of capias ad respondendum against a defendant, and having duly filed and continued them, pursuant to the 3 & 4 Vic. c. 105, s. 7, in order to defeat the bar of the statute of Limitations, will be permitted, on payment of costs, to amend formal errors in the indorsement, return, and form of the said writs, even after the plea of the statute pleaded by the defendant, provided he have substantially complied with the provisions of the statute.phy, 2 Ir. L. Rep. 383, Ex. Clanmorris v. Lambert, 1 Ir. Jur. 267, Q. B.

The court will amend a writ of capias ad res pondendum by changing the naine of Margaret to Martha where the refusal would cause the claim to be barred by the statute of Limitations. Ryan v. Sheehey, Bl. D. & O. 212, Ex.

Declarations and Pleas.]—The court will permit

a count for interest to be added to a declaration after the expiration of the second term from the bringing of an action for money lent. Reynolds v. Brady, 1 Ir. L. Rep. 27, Ex.

A declaration may be amended without prejudice to the rule to plead, by adding the name of either counsel or attorney, although a motion be made to take it off the file of the court for irregularity. Lindsay v. Vaughan, 1 Ir. L. Rep. 159, Q.B.; Keene v. Graham, 1b.

A defendant in replevin will be allowed to amend by adding additional avowries, where it appears that the necessity for the amendment is recently discovered, and the delay which occurred is owing to a compromise which had been pending between the parties. O'Connor v. Bentley, 1 Ir. L. Rep. 79,

Q. B.

On motion to amend a declaration, by averring notice of dishonour of a bill of exchange to the personal representative of A. instead of to A. It ap

Where the defendant pleaded the general issue, and gave notice of set-off they were permitted to amend by adding a plea of set-off upon terms of amending the plaintiff's copy of the pleas, and withdrawing the notice of set-off. Darley v. Mur

Where an amendment of the declaration will deprive the defendant of a defence he could have set up under his plea, he is entitled to have the rules to plead served anew. Reynolds v. Kelly, 3 Ir. L. Rep. 186, C. P.

If a party served with notice tenders a consent to do that which the court on motion will order, he

will be entitled to the costs.

Ib.

Where a special demurrer is allowed to a declaration the plaintiff is entitled to amend generally, and he need not confine his amendments to the points

demurred to, or specify the amendment he seeks to make in his notice of motion. Anonymous, 3 Ir. L. Rep. 216, Q. B.

The court will allow a second amendment to be

made in pleas to a scire facias after demurrer filed
where no trial has been lost by the defendant's de-
fault, and although he does not swear that the judg-
O'Callaghan v. Creagh, 3
ment was ever paid.
Ir. L. Rep. 270, C. P.

In an action of scire facias the attorney of a purchaser pleaded jointly for three tenants, one of whom having given him no authority to do so, now disclaimed, and the remaining two were anxious to withdraw their defence, the court refused an applibut allowed them to be amended by striking out the cation by the plaintiff to take their pleas off the file, peared that the declaration was filed as of Michael- name of the disclaiming party. Lytlleton v. Ivie, mas Terin, 1837, that the defendant pleaded, and 3 Ir. L. Rep. 364, C. P. issue was joined, that no further proceedings having In an action of replevin when the defendant was been taken by the plaintiff the defendant applied a pauper residing in England the court refused him for judgment as in case of a non-suit, which the permission to file an additional avowry on the usual plaintiff answered by a peremptory undertaking to terms, unless the costs were paid, and all proceed

ings were stayed until then. 3 Ir. L. Rep. 378, C. P.

Mann v. Edwards,

To an action of debt upon an English judgment the defendant pleaded, first, nil debet; secondly, that the judgment in the original action had been recovered on a bond conditioned for the payment of an annuity, and that no memorial of such bond had been enrolled pursuant to the 53 Geo. 3, c. 141, s. 2, Eng., whereby the bond was void; third plea same as second. A motion to amend was refused, the pleas not being such as to be entitled to the favour of the court. Sims v. Thomas, 3 Ir. L. Rep. 415, Ex.

A cross motion to rescind the rule to plead several matters was also refused, the court being unwilling, except in extreme cases, to exercise a summary jurisdiction by ordering objectionable pleas to be expunged upon motion. Ib.

A motion to amend pleas is not ex debito justitia, although made before demurrer to replication, and if the proposed amendment be not conducive to the justice of the case the application will be refused. Ib.

The court will, in some instances, permit the amendment of a declaration in a matter that does not open a new defence, without requiring the rule to plead to be entered de novo. Carroll v. Maher, 3 Ir. L. Rep. 470, C. P,

Where a special demurrer was overruled, the defendant applied for leave to plead, but the court refused the application, holding that it should be the subject of a distinct motion after an argument upon demurrer. Kenny v. Simpson, 4 Ir. L. Rep. 42, Q. B.

A declaration in debt on an annuity deed, con. tained two counts: the first for four years' arrears, due May, 1840; the second for five years, due May, 1841. The court refused to strike out the first, it being suggested there was an assignment of the deed. Clarke v. M'Daniel, 4 Ir. L. Rep. 131, C. P. The declaration having been entitled of a term different from that in which the defendant had appeared, the court granted liberty to amend on payment of costs, and required the rules to plead to be served de novo, the defendant having a claim for untaxed costs against the plaintiff, which, when taxed, he intended to plead as a set-off. Carroll v. Farrelly, 4 Ir. L. Rep. 137, C. P.

Where the declaration is entitled of a term different from that in which the writ was returnable, the defendant ought to give the plaintiff notice of the irregularity before he serves him with notice to set it aside, or he should call on him in the alternative either to amend, or that the declaration should be set aside. Page v. Murphy, 4 Ir. L. Rep. 417, C. P. A plaintiff will be allowed to amend a declaration, without prejudice to the rules to plead, when the error sought to be amended was a mere clerical one. Smith v. Blair, 4 Ir. L. Rep. 397, Q. B.Ch.

The court will give a defendant leave to amend a plea of the statute of limitations before argument, and will not allow the plaintiff to open affidavits detailing the special circumstances of the case, for the purpose of shewing that the defendant had not a meritorious defence. If a party allow a special demurrer, he need not specify in his notice of mo

the amendments he seeks. Brennan v. Monahan, 4 Ir L. Rep. 415, C. P.

Where there is a bona fide cause of action, and the error has occurred through a mistake of the pleader, the amendment must be allowed. Per Crampton, J. Baggot v. Malone, 5 Ir. L. Rep. 460, Q. B.

In an action by the assignees of a bankrupt firm, the court allowed the plaintiffs to amend the declaration, by striking out and adding to the names of the partners of the firm, and to make the writ conformable thereto, though more than two terms had elapsed since the declaration had been filed. The plaintiffs were ordered to pay the costs of the amendments and of the motion, and to serve the rules to plead anew. Wright v. Goold, 5 Ir. L. Rep. 98, C. P.

After a demurrer to a plea, and before joinder, the court will permit an amendment to be made without an affidavit of merits, if there be a fair question to be tried. Johnson v. O'Hagan, 5 Ir. L. Rep. 133, E.

A declaration cannot be amended by adding a new count, without entering the rule to plead de novo. Anonymous, 6 Ir. L. Rep. 202, Q. B.

An amendment of a plea of the statute of limitations will be allowed after special demurrer, and before argument, without any affidavit of merits. Meyler v. Morton, 7 Ir. L. Rep. 229, C.P.

Semble, an order to amend a declaration by subscribing the name of counsel, is a motion on notice. Loughnane v. Irwin, 4 Ir. L. Rep. 19, C. P.

To a declaration in quare impedit, a demurrer was, on the last day of Trinity Term, 1846, allowed, at which time an application on behalf of the plaintiffs, to restrain the defendant from entering up judgment until the ensuing Michaelmas Term, was refused. In Michaelmas Term the plaintiffs obtained a conditional order for leave to amend, against which-the case having stood over in the meantime for the convenience of the court-cause was not shewn until Trinity, 1847. Held, under these circumstances, that the court had jurisdiction to allow the plaintiffs to amend in Trinity, 1847, though judgment had been pronounced as of a previous term. The Executors of the Marquis of Winchester v. the Bishop of Killaloe, 9 Ir. L. Rep. 428, C. P.

The court permitted amendments, but in matters of form alone, and refused to allow additional counts to be filed which varied the statement of title, and alleged a presentation different from that averred in the former counts. Ib.

The court, upon special grounds, refused to allow an amendment of two pleas of the statute of limi tations, even before argument of the special demurrer taken to these pleas. Marquis of Ormonde v. The Lord Bishop of Cashel, 9 Ir. L. Rep. 438,

C. P.

Where the defendant appeared as of the preceding Trinity Term, to a writ issued in the vaca tion, and the plaintiff entitled his declaration as of the term of the appearance, the defendant was allowed to amend the declaration, by entitling it as of Michaelmas Term, and by altering the statement of the appearance accordingly. Neavin v. Hughes, 9 Ir. L. Rep. 504, Ex.