Crawford v Gillmor

• Jurisdiction: Ireland
• Judgment Date: 21 December 1891
• Date: 21 December 1891
• Docket Number: (1891. No. 4565.)
• Court: High Court

Appeal.

Before LORD ASHBOURNE, C., SIR P. O'BRIEN, C.J., and BARRY, L.J.

(1891. No. 4565.)

CRAWFORD

and

GILLMOR

James v. StantonENR 2 B. & Ald. 373.

Kenna v. NugentUNK Ir. R. 7 C. L. 464.

Coneys v. ConeysUNK 8 Ir. C. L. R. 379.

Williams v. HealesELR L. R. 9 C. P. 177.

Doe d. Higginbotham v. BartonENR 11 Ad. & El. 307.

Beckingham v. Owen W. N., 1888, 215.

Wallingford v. Mutual SocietyELR 5 App. Cas. 685.

Lloyd v. ByrneUNK 22 L. R. Ir. 269, 274.

Dowell v. Dignan Batty, 698.

Kennedy v. Phelan Ibid. 320 n.

Rankin v. Mc MurtryUNK 24 L. R. Ir. 290.

Doe d. Rutledge v. JenningsUNK 3 Ir. L. R. 268.

Panton v. JonesENR 3 Camp. 372.

Keene v. M'BlaineUNK 17 Ir. C. L. R. 654.

Billing v. ArnoldUNK Ir. R. 7 C. L. 529.

Campion v. CampionUNK Ir. R. 8 C. L. 313.

Barnes v. BarnesUNK 8 L. R. Ir. 165.

Keene v. M'BlaineUNK 17 Ir. C. L. R. 654.

Rowley v. LaffanUNK 10 L. R. Ir. 9.

Campion v. CampionUNK Ir. R. 8 C. L. 313.

Coneys v. Coneys 8 Ir. C.. L. R. 379.

Lloyd v. ByrneUNK 22 L. R. Ir. 269; on app. 274.

Ex parte Adamson; In re Collie 8 Ch. Div. at p. 817.

Practice Final judgment motion Difficult question in law Difficult question of fact Estoppel by matter of record Estoppel in pais.

LAW REPORTS (IRELAND). [L. R. I. CRAWFORD v. GILLMOR (1). (1891. No. 4565.) Practice-Final judgment motion-Difficult question in law-Difficult question of fact-Estoppel by matter of record-Estoppel in pais. Liberty to mark final judgment on a specially indorsed writ will not be given where a difficult question of fact or a difficult question in law is raised by the defendant's affidavit. APPEAL from an order of the Queen's Bench Division, dated 18th November, 1891, whereby the plaintiffs were empowered to mark final judgment against the defendant for the sum of 16 17s. 101d. and costs. The plaintiffs' claim was in respect of arrears of rent out of the lands of Fort-hill, in the county of Sligo. These lands had been demised by the predecessor in title of the plaintiffs by a lease for lives renewable for ever to Wm. Gillmor, and the last renewal of the lease had been made, in 1851, to James Gillmor. On the death of James Gillmor in 1859, the defendant's father, who was his (James Gillmor's) personal representative, entered into possession of the lands in question, and during his life collected the rents from the subtenants and paid the rent reserved by the lease to the lessor. The defendant's father died in 1878, and thereupon the defendant, who proved his father's will, entered into possession, and for some years collected and paid the rents as his father had done. The affidavit of the plaintiffs showed that they were entitled to the rent reserved by the lease as successors in title to the original lessor, and averred that the plaintiffs had obtained a decree in ejectment for non-payment of rent at the January Sessions at Sligo in 1891, that the defendant had paid the costs of this decree which the County Court Judge had given against him, but did not pay the rent, and the decree was executed on the 24th March, 1891 ; and that the subtenants who had previously paid the defendant rent, VOL. XXX.] Q. B. & EX. DIVISIONS. 239 and been sued by him in his own name when they did not do so, Appeal. were evicted by the plaintiffs. 1801. The defendant in his affidavit stated that he had entered into CRAWFORD possession of the lands under the belief that they were demised for GILLMOR. a term of years, and that as soon as he had discovered that they were not a chattel real belonging to his father, he repudiated any estate in or liability in respect of them by a letter dated 8th November, 1889, having satisfied rent due under the lease up to that date ; the defendant's affidavit also stated that he had not collected any of the rents due by the subtenants on the lands after that date ; that the defendant was not the heir of James Gillmor, and there was no devise or grant under which the lands had beÂÂcome vested in him. The affidavit concluded by referring to the civil-bill proceedings by which the plaintiffs had recovered possession of the lands, the defendant swearing as follows :-" I say that upon the hearing of the said civil bill, Mr. Fenton, solicitor, attended on my behalf, and by my instructions stated that I did not oppose the ejectment proceedings in any way, as I had no claim or interest whatever in respect of the said premises, and did not desire in the future to interfere therewith." The civil bill in ejectment contained this statement " the defendant William G. Gillmor holds part of the lands of Forthill, with the appurtenances, containing 4 acres and 24 perches Irish measure, as now in the occupation of Martin Feeney and Honoria May, situate, &c., as tenant to the plaintiffs under a lease for a term unexpired, believed to have been made for lives renewable for ever in 1799 to one William Gillmor, and renewed in 1851 to James Gillmor, by John Nicholas Wrixon, &c." The amount sued for represented the rent accruing under the lease from the time when the defendant repudiated his liability up to the execution of the decree. The writ of summons claimed the sum sued for in the alternative as due for use and occupation. John Leech, for the appellant : Thin case was decided in the Court below on the grounds that the...