Assignee of Green v Earl of Listowel

• Jurisdiction: Ireland
• Judgment Date: 14 June 1840
• Date: 14 June 1840
• Court: Exchequer of Pleas (Ireland)

EXCHEQUER OF PLEAS.

Assignee of GREEN

and

Earl of LISTOWEL.

Sir Wm. More's Case Cro. El. 26.

Rubery v. StephensENR 4 B. & Ad. 241.

Helier v. CasebertENR 1 Lev. 127.

Buckley v. Pirk.ENR 1 Salk. 317.

Reid v. Lord Tenterden 4 Twyrw. 111.

Derisley v. CustanceENR 4 T. R. 75.

Nation v. TozerENR 1 Cr. M. & R. 172.

Tilney v. Norris 1 Lord Raym. 553.

Walker v. Reeves Doug. 461, note.

Williams v. BosanquetENR 1 Brod. & B. 238; S. C. 3 Moore, 500.

Bull v. SibbsENR 8 T. R.327.

Lessee Ormsby v. Smith 4 Mee. & W. 444.

Patten v. Patten 4 Law Rec. N. S. 19.

Rex v. The Inhabitants of Horseley 1 Al. & N. 493.

Lyons v. MuldarryENR 8 East, 405, 410.

Duckworth v. Harrison 1 Hayes, 530.

Tilney v. Norris 1 Lord Raymd. 553.

Remnant v. BremridgeENR 8 Taunt. 191; S. C. 2 B. Moore, 94.

Dowell v. Dignan Batty,698;

Boulton v. CanonENR Freem. K. B. 336.

Sackvill v. Evans Freem. 171.

Garth v. Taylor Freem. 260; S. C. 2 Bac. Ab. 388.

Coly v. Joslin Alleyne, 34.

Wilson v. Wigg Lev. 127.

Wilkinson v. Cawood Anstruther, 905.

Powell v. SonnetENR 1 Bli. N. S. 545.

Caccyffer, Executrix of M. Reade,ENR Cro. Jac. 549; S. C. 2 Roll Ab. 131, New Paule v. Moodie.

Anon Moore, 44.

Mawle v. CacyfferENR Cro. Jac. 549.

Paule v. Moodie 2 Rolls R. 131.

Turner v. RichardsonENRENR 7 East, 3. See also Copeland v. Stephens, 1 B. & A. 593.

Eaton v. Jaques Doug. 455.

CONVENANT FOR RENT ADMINISTRATOR PLEADING PRACTICE WITHDRAWING ISSUES FROM JURY.

384 CASES IN THE EXCHEQUER OF PLEAS. COVENANT FOR RENT-ADMINISTRATOR-PLEADING PRACTICE-WITHDRAWING ISSUES FROM JURY. Assignee of GREEN v. Earl of LISTOWELA Covenant for rent arrear against the adÂÂministrator of a lessee for years. The deÂÂclaration statÂÂed that "all the "estate, &c., " term of years " to come and " unexpired, " property, "profit, &c. "" in said preÂÂ" miles, by asÂÂ" signment " thereof, " came to and " vested in the " defendant, " who thereupÂÂ" on then anti " there enterÂÂ" ed into and " upon all and " singular the " said premiÂÂ" ses, and was " thereof posÂÂ" sessed from " thence hiÂÂ" therto." The defendant pleaded nine pleas :-lst, non eat factum; 2ndly, that the estate, &e., did not vest in him modo et forma. Upon the latter plea issue was joined, and the questions in the case turned entirely upon this issue. To support it, the plaintiff gave in evidence the lease and the letters of administration of the goods, &c. of the lessee granted to the defendant, and rested his case upon these. The learned Judge directed the jury to find for the defendÂÂant, unless they believed he was assignee in any other way than as administrator. They found for the defendant. To this direction an exception was taken by the plaintiff: Held, that proof of the letters of administration, without proof of entry by the administraÂÂtor, sustained the above issue. RICHARDS, B., dissentiente, his Lordship being of opinion that the personal representative being sued as assignee generally, the onus lay upon the plaintiff to shew that he was such assignee, not alone by proof of the letters of administration, but also by entry or the like, and that in such case the plea that he is not assignee modo et forma put every thing in issue. In this case, issue having been joined upon the first eight pleas, and the jury having given a verdict for the plaintiff upon the first issue, and for the defendant on the second:-Held, that the learned Judge was authorised in withdrawing the remaining six issues from the jury, it being a matter for the exercise of his discretion. • Vtion the 13th of June the Court desired that this case should be re-argued by one counsel on each side ; when Mr. Bennett, Q. C., was heard for the defendant, and Mr. O'Leary for the plaintiff. All the authorities referred_to are given in the report. TRINITY TERM, -THIRD VICTORIA. 885 namely, a plea of the statute of limitations, to all but six years, the question turned solely on the issue joined on the second plea. To sustain thatissue, the plaintiff gave in in evidence the following proofs :- lst.-Letters of administration of goods, &c., of the Hon. Richard Hare (then Lord Viscount Ennismore), granted to defendant. 2d.-Charles Furlong, land agent of intestate.-Intestate held lands until his death, in September 1827 ; some cattle remained on the lands until January 16th, 1828, when he paid rent up to March 1828 and left the lands by the directions of the defendant's land agent, and a third person has been in possession ever since. 3d.-William Buckley.-Rased trees on Conway for defendant in spring, after intestate's death; they were moved to defendant's demesne and sold by auction ; saw defendant's cattle on Conway. 4th.-William Shinnick.-Recollects Lord Ennismore's death ; after it, saw: trees rased on Conway by defendant's workmen ; believes in January 1828; saw defendant's cattle on Conway at Christmas 1827. Plaintiff then closed his case, and the defendant offered no evidence. The learned Judge gave the following direction :-" I left it to the " Jury to say whether the defendant was assignee in any other way "than as administrator ; and if they were of opinion that he was not, I "directed them, on the facts proved, to find for the plaintiff on the first "plea, and defendant on the second ; and they having so done, I " discharged them of the other issues. Mr. Henn, Q.C., for plaintiff, conÂÂ" tended that I should have directed the jury, on the second issue, to " find for plaintiff, inasmuch as by a grant of administration, defendant " was legal assignee, and as such liable to the payment of the rent ; and " I refused so to direct them." The bill contained also an exception on the ground of the other issues not having been left to the jury. Mr. C. P. P. O'Leary, with whom were Messrs. Henn, Q.C., and Collins, Q. C., contended for four propositions: first, on the pleadings as framed,the issue knit on the second plea is conclusively sustained. Sir Wm. More's Case (a) is precisely in point-the question in that case must have arisen on a traverse framed precisely as the present one, or on a demurrer, the declaration stating a covenant for the lessee and his assigns and a breach by his administrator-for this is in terms a denial of the defendant's being assignee at all ; the plea stating that the term did not vest in him in manner and form, &c. If Sir W. Moore's Case be not conclusive, then the case is of the first impression and principles must be resorted to. What are the facts ? Here we have a contract by which rent is reserved ; in calculating the terms of that contract, the certainty (a) Cro. El. 26. 386 CASES IN THE EQUITY EXCHEQUER. and duration of it are necessary and most material elements ; pending the continuance of the term the lessor finds a devolution of the interest of the lessee, and treating the contract as one made bona fide for its full extent-treating the term as still subsisting, proceeding against the representative of the lessee for the rent in arrear. This course does not or cannot vary the liabilities of the administrator; for it is clearly settled that he cannot waive the term altogether without waiving adminÂÂistration and may be sued as assignee; Rubery v. Stephens (a); and he is personally liable for so much of rent as the land is worth, 2 Williams on Executors, 2 ed. 1248; when sued as administrator expressly he is personally liable to amount of assets, and may be sued in the debet and detinet; Helier v. Casebert (b); and when he is so sued, " if the rent be of less value than the land, as the law primd facie supposes, so much of the profit as suffices to make up the rent is appropriated to the lessor, and cannot be applied to any thing else ; Buckley v. Pirk (c). True he must plead according to the rules of the action of covenant and the motive of his defence ; and "if the land be of less value than the rent he may "disclose that by special pleading, and pray judgment whether he should "be charged otherwise than in the detinet only ; Buckly v. Pirk.* And when:sued as assignee, Per Bayley, ,B., "He was by pleading to confine his " liability to the amount of assets ;" Reid v. Lord Tenterden (d), in which case the proper plea in such cases is given. The plea in the present case is without a precedent, and tends to mislead the plaintiff as to the nature of the defence ; and by the rules of pleading, " in pleading title in a "defendant, general words are sufficient where the certainty lies within "the defendant's own knowledge ;" Derisley v. Custanee (e). And...