Beresford v Loughnan

• Jurisdiction: Ireland
• Judgment Date: 11 June 1839
• Date: 11 June 1839
• Court: Exchequer of Pleas (Ireland)

EXCHEQUER OF PLEAS.

BERESFORD

and

LOUGHNAN.

Jones v. Axen 1 Lord Raym, 120.

Spiers v. ParkerENR 1 T. R. 141.

Gill v. ScrivensENR 7 T. R. 27.

Vavasour v. Ormrod 6 B. & Cr. 430.

Dyster v. BattyeENR 3 B. & A. 448.

Chandler v. Roberts Doug. 60.

Milner v. Crowdall Shower, 338.

Brett v. Rigden 1 Plowd. Rep. 342.

Obin v. Knott Fortesc. 339.

Hayman v. Gerrard 1 Saund. Rep. 99.

Knowles v. StevensENR 1 C. M. & R. 27.

St. John v. St. JohnENR Hob. 78.

Stile v. FinchENR Cro. Car. 381.

Hawkins v. Billhead Ibid, 404.

Dyne v. O'Neill Crawf. & Dix. Ab. N. C. 329.

Smith v. FortyENR 4 C. & P. 126.

Gill v. ScrivensENR 7 T. R. 27.

Graham v. Pitman 5 Nev. & Mann. 41.

ACTION FOR TITHE COMPOSITION SINCE 1 & 2 VICT. c. 119 PLEADING STATUTE OF LIMITATIONS VERIFICATION NEGATIVE PLEA ACCOUNT STATED DEMURRER.

S64 CASES IN THE EXCHEQUER OF PLEAS. appears to me, therefore, that the points ought to be ruled in favour of the claimant in this case. RICHARDS, B. concurred. In order to obtain the decision of the Court of Error upon the ques. tions raised in this case, they have been put upon the record in the shape of exceptions to the charge of the learned Baron, before whom the case was tried. ERRATUM.-Page 361, for "in common with each other," read, "in connexion with each other." Wednesday, June 5th-Tuesday, June 11th. ACTION FOR TITHE COMPOSITION SINCE 1 & 2 VICT. c. 119-PLEADING-STATUTE OF LIMITATIONS VERIFICATION-NEGATIVE PLEA-ACCOUNT STATED-DEMURRER. BERESFORD v. LOUGHNAN. DEBT.-The declaration, which was entitled as of Hilary Term, conÂÂtained five counts. The first count stated, that on the 25th of April, 1825, "in pursuance of the several statutes then and now in force for establishing compositions for tithes in Ireland," the sum of 127. 10s., by the year, was duly ascertained as a composition for all tithes within the parish of Donaghmore, in the Queen's county ; that. a certain porÂÂtion of such composition, to wit, the sum of 3. 4s. 3d. was duly assessed and applotted upon certain lands within the said parish, of which the defendant was the occupier ; that the said sum of 3. 4s. 3d., during the continuance of such composition, was payable to the rector of said parish for the time being ; that the plaintiff, at the time of the making and entering into such composition, was rector of said parish ; that he had since continued rector, and, as such, was entitled to the whole of said compositon, which still remained in full force and effect ; that after the making of such composition and applotment, the defendant occupied the said portion of land which had been so assessed, applotted, and made chargeable with the said annual sum of 3. 4s. 3d., from the 1st of TRINITY TERM, SECOND VICTORIA. 865 November, 1830, until the present time; that the defendant did not hold as tenant at will, or under a demise executed after the 16th of August, 1832 ; that the defendant, by means thereof, became liable to pay to the plaintiff the sum of 19. 15s. 4d. for six years' and a half of said composition due and ending on the 1st of November, 1837; whereby, &c. The second and third counts were also for tithe composition. The fourth count was for tithes bargained and sold. The fifth count stated, that the defendant, as such occupier as aforesaid, afterwards, to wit, on the 1st day of December, 1837, at, &c. accounted, together with the plaintiff, as such rector, of and concerning divers other sums of money, before that time, and then due and owing from the defendant, as such occupier as aforesaid, to the said plaintiff, as such rector as aforeÂÂsaid, &c.; and upon that accounting, the said defendant, as such ocÂÂcupier as aforesaid, was then and there found to be indebted to the plaintiff, as such rector as aforesaid, in the sum of 100, then and there due and payable by the defendant, as such occupier as aforesaid, to the plaintiff, as such rector. By means, &c. The defendant pleaded five pleas, of which the fourth and fifth were to the following effect :-Fourth plea :-As to 9. 12s. 9d. parcel of the monies in the first count mentioned; and as to 9. I 2s. 9d., parcel of the monies in the second count mentioned; and as to 9. 12s. 9d., parcel of the monies in the third count mentioned, actio non, because the said three several sums, and each of them, and every part thereof, are and is claimed by the plaintiff, for and in respect of arrears of composition for tithes due for the three years immediately preceding 1834, and not for any period subsequent to 1833. Verification and prayer of judgment. To this plea there was a demurrer, assigning the following causes :-That defendant had not confessed and avoided, or traversed and denied, that the several sums in the plea mentioned were, or that any of them was, due to the plaintiff, as alleged by the declaration ; that the plea amounted to the general issue : that it was no answer as to the several sums in the plea specified, but was evasive and argumentative. Fifth plea :-As to 6. 8s. 6d., parcel of the monies in the first count mentioned ; and as to 6. 8s. 6d., parcel of the monies in the second count mentioned: and as to 6. Ss. 6c1., parcel of the monies in the third count mentioned; and as to 100, in the fourth count mentioned, and as to 100 in the fifth count mentioned, the defendant, by leave of the court, says, that the several causes of action in respect of the said several monies, and every part thereof respectively, did not, nor did any or either of them accrue to the plaintiff, at any time within six years next before the commencement of the suit. Wherefore the defendant prays judgment, &c. To this plea also there was a demurrer, assigning the following causes :-That defendant had not concluded his said plea with a verification, or to the country, so that the plaintiff could not 366 CASES IN THE EXCHEQUER OF PLEAS. shew any matter to avoid the allegations of said plea, or take issue upon them or any of them. The Court having, early in the argument, intimated a strong opinion against the validity of the fourth plea, it was accordingly abandoned by the defendant's counsel, who fell back upon the declaration. Mr. Walter Berwick, for the defendant.-The declaration is clearly bad on general demurrer, as it discloses no legal right of action in the plaintiff. The declaration, which is entitled generally of Hilary Term, 1839, claims tithes, and composition for tithes, although both had...