Bond v Holton

• Jurisdiction: Ireland
• Judgment Date: 04 February 1959
• Date: 04 February 1959
• Court: Supreme Court

Bond v. Holton.

HARRY VICTOR BOND

Plaintiff

and

PETER HOLTON, Defendant (1)

Supreme Court.

Receiver - Agricultural lands - Owner permitted to remain in occupation of portion of lands to support family - Conacre letting of such portion by owner - Objection by receiver - Claim by receiver for amount of conacre price from conacre licensee - Summary summons - Amount claimed within jurisdiction of Circuit Court - Claim by defendant that summons should be struck out as disclosing no cause of action - Action remitted by High Court Judge to Circuit Court for plenary hearing - Appeal by defendant.

Practice - Pleading - Cause of action - Whether disclosed in summary summons and whether supported by evidence on affidavit - Rules of the High Court and Supreme Court, 1926, Or. III, r. 1.

The plaintiff was appointed receiver over certain lands in Co. Meath owned by W. in the year 1955. He went into occupation of all the lands except some 31 acres which he left in the occupation of W. so that W. might be enabled to support himself and his family. W. made a conacre letting of the 31 acres for the year ending November, 1956. In October, 1956, he made a similar letting to the defendant, H., for the year ending November, 1957, for a sum of £558 13s. 6d. Payment was secured by the defendant's promissory note which was discounted by W. Shortly after the making of this agreement the plaintiff informed the defendant that it was made without his authority and warned the defendant not to enter upon the lands. The defendant, nevertheless, put his stock on the lands. In February, 1957, the plaintiff notified the defendant that he was prepared to ratify the letting on condition that the amount of the conacre money, £558 13s. 6d., was paid to him. In reply, the defendant pointed out that he had already paid the money to W.by way of the promissory note. He remained in occupation of the lands. The plaintiff issued a summary summons, claiming the said sum, £558 13s. 6d., from the defendant. In his affidavit in support of the summons he merely repeated the words of the summons. The trial judge remitted the case for plenary hearing in the Circuit Court, despite the defendant's claim that it should there and then be struck out as disclosing no cause of action in the plaintiff against the defendant. On appeal by the defendant to the Supreme Court it was

Held by the Supreme Court (Lavery, Kingsmill Moore and O'Daly JJ.; Maguire C.J. dissenting) that no cause of action was disclosed by the summons and, in particular, that no contract, express or implied was pleaded.

Held, further, that any possible cause of action which could be spelled out of the pleading was not supported by evidence in the affidavit.

Per Lavery J.:—". . . . in my opinion, where a plaintiff proceeds by summary summons he must not only plead a cause of action which under the Rules may be brought by summary summons but must support his claim by evidence. If such evidence is not forthcoming the action should be dismissed."

Per Kingsmill Moore J.:—"In my opinion where the summons does not specify a cause of action or disclose facts which, if true, necessarily amount to a cause of action, the defendant is entitled to have the action dismissed or struck out."

Appeal from the High Court.

The plaintiff, Harry Victor Bond, as receiver, issued a summary summons against the defendant, Peter Holton, claiming the sum of £558 13s. 6d. which was the amount payable by the defendant under a conacre letting from one, James P. Walsh, to the defendant. The lands the subject-matter of the conacre letting formed portion of lands over

which the plaintiff had been appointed receiver prior to the letting. At the date of the letting the plaintiff had not gone into occupation of that particular portion of the lands. The facts have been summarised in the head-note and in the judgment of Lavery J., post.

Paragraphs 1, 2 and 3 of the summary summons set out the receiver's appointment in an order made in a judgment mortgage suit against Walsh; the receiver's power under the said order to continue existing conacre lettings; and the terms of the agreement between James P. Walsh and the defendant, Peter Holton. The summary summons continued as follows:—

"4. The defendant had either personally or through his agent knowledge of the said order of the Court and of the fact that the plaintiff had been appointed receiver over the said lands.

5. Shortly after the making of the said purported letting the plaintiff informed the defendant that the same was made without authority and void and requested the defendant not to enter upon the said lands or place his stock thereon.

6. In or about the month of February 1957 the plaintiff notified the defendant that he was prepared to ratify the said letting on condition that the said rent of £558 13s. 6d. was paid over to the plaintiff.

7. After receipt of the said notification the defendant elected to occupy and enjoy the said 31 acres 0 roods and 6 perches let to him under the said Memorandum of Agreement until the 30th day of November 1957 but has failed and neglected to pay over to the plaintiff being the sole person lawfully authorised to receive the same said sum of £558 13s. 6d..

And the plaintiff claims £558 13s. 6s."

On the summons coming before the High Court, Murnaghan J. declined to entertain the defendant's submissions that the summons should be struck out as 1, disclosing no cause of action, and 2, as not being a matter proper to be brought by summary summons, and he transferred the cause to the Circuit Court for plenary hearing. From this order the defendant appealed to the Supreme Court.

Cur. adv. vult.

Maguire C.J. :—

The indorsement on the summary summons in this case may be summarised as follows:—

By order of the Court in a suit to...