Daniel in Replevin v Bingham

CourtCourt of Exchequer Chamber (Ireland)
Judgment Date10 June 1844
Date10 June 1844

Exch. Cham.

DANIEL in replevin


The Attorney-General v. LockwoodENR 9 M. & W. 398.

Rex v. FrostENR 9 C. & P. 169.

Grenville v. The College of PhysiciansENR 12 Mod. 387.

Duncan v. MeiklehamENR 3 C. & P. 172.

Crisp v. Bunbury 1 M. & Scott, 606.

Steward v. GravesENR 10 M. & W. 719.

Coroner of Staffordƒ€™s caseENR 2 Russ. 475.

Murphy in replevin v. Butler Jebbƒ€™s Res. Cas. 321.

Smithwick v. Pearson 2 Jones, 462.

Goodman v. AylingENR Yelv. 148.

Evans v. ElliottENR 5 Ad. & E. 142.

Walter v. NewballENR 4 Mod. 395.

Brown v. Motherwell 1 C. & D. 468.

Orr v. Stephenson 2 C. & D. C. C. 228.

Walter v. Newball; Com. Dig. Trespass, C. 2; Higgins v. GoodeENR 2 C. & J. 367.

Beecherƒ€™s caseUNK 8 Rep. 60, b.

Ryan v. RolleENR1 Atk. 174.

Mason v. Armitage 13 Ves. 35.

Rex v. LeicesterENR 7 B. & C. 12.

Doe d. Phillips v. EdwardsUNK 3 Tyrw. 339.

Rex v. BerminghamENR 8 B. & C. 29.

Lessee of the Governors of St. Patrickƒ€™s Hospital v. Dowling Bat. 296.

Woodcroft v. ThompsonENR 3 Lev. 48.

Shopcott v. WinfordENR 1 Ld. Raym. 188.

Symes v. MoodyENR 2 Str. 856.

Six Carpentersƒ€™ case 8. Co. 290.

CASES AT LAW. 29 1'. T. 1844. Exch. Chant. ertbequer amber. DANIEL in replevin BINGHAM: .Tune 10. REPLEVIN.-TO the declaration, which was in the common form, the defendant filed two avowries, avowing the taking of the plaintiff's goods in distress for £120 due for one and-a-half years' rent to him for the locus in quo. at a yearly rent of £80. To each of these avowries the plaintiff pleaded two pleas, the first of which is alone material to be conÂsidered, and were in effect the same--viz., that before, and at the time of making the distress for rent, the plaintiff was in possession of the locus in quo, and that the defendant " did not at the time of making such distress, "or at any time before, deliver to the plaintiff a particular in writing of "the rent demanded, specifying the amount thereof, the time or times "when the same accrued, and the person by whom, or by whose autho rity, the distress was so made, according to the form of the statute "(6 & 7 W. 4, c. 75, s. 6)* in that case made and provided." To each of these pleas a special demurrer was put in, showing for cause, the immaÂteriality and narrowness of the issue-the delivery of the particulars in writing being only'negatived at or before the time of making the distress, and not after, or before the issuing of the writ of replevin. The plaintiff having joined in demurrer, the case came on to be argued before the Court of Common Pleas in Hilary Term 1842, when the Court allowed The extent of the jurisdicÂtion given to the Assistant-Barristers by the 6 &7 W. 4, c. 75, in reÂplevin cases, is to be governed by the amount of the reserved annual rent, and not by the amount of the rent distrained for, and therefore, a plea of the nonÂdelivery of the particulars of distress reÂquired by the 6 & 7 W. 4, c. 75, s. 6, to an avowry of distress for .E120 due for one and a-half years' rent, was held to be a bad plea. Qmore,- Is the fact of the non-delivery of such particulars pleadable in bar to an avowry P • 6 & 7 W. 4, c. 75.-" And be it further enacted, that the respective AssistantÂ" Barristers in Ireland shall, and they are hereby authorised and empowered, to hear " and determine, within their respective jurisdictions, all actions of replevin relating " to distresses for rent between landlord and tenant, when the rent for, or in respect of " which, any distress shall be, or ought to have been made, shall not exceed £50 in " amount or value." Section 5. " And be it enacted, that in all cases of distresses for rent, the person making any " such distress shall deliver to the person in possession of the premises, for the rent of " which such distress shall be made, or in case there shall not be any person found in "possession, shall affix in some conspicuous part of such premises, a particular in "writing of the rent demanded, specifying the amount thereof, the time or times when "the same accrued,"and the person by whom or by whose authority snob distress is " made." Section 6. 30 CASES AT LAW. the demurrer (dissentiente FOSTER, J.), deciding, on the general ground, that it' was not necessary that a landlord distraining for rent should deliver the particulars of distress required by the 6 & 7 W. 4, c. 75, s. 6, unless in cases falling within the jurisdiction of the Civil Bill Courts.* The plaintiff' having taken out a writ of error, the case now came before this Court. Mr. Francis Fitzgerald and Mr. Napier, for the plaintiff in error.-There are three questions in this case to be decided by the Court ; first, whether the 6 & 7 W. 4, c. 75, s. 6, is applicable to every case of distress for rent? secondly, whether it is mandatory or directory ? and thirdly, whether the omission to give the notice, as stated in the pleadings, renders the taking unlawful, and disentitles the landlord to a return of the goods? The first of these is a question of construction, and the rule is, as laid down by Alderson, B., in The Attorney-General v. LockÂwood (a), that statutes are to be construed " according to the plain, "literal and grammatical meaning of the terms in which they are expressed, " unless that construction leads to a plain and clear contradiction of the "apparent purpose of the Act, or to some palpable and evident absurdity ;" Rex v. Frost (b). Applying that rule in this case, the 6th section of the Act in question is perfectly plain and general in its terms; the onus, therefore, lies on the defendant to show that the enactment is restricted to a certain class of cases. That it occurs in a Civil Bill Act is no reason ; for the I G. 4, c. 41, is a Civil Bill Act, as appears by its title, and the 1st section ; and yet the 2nd section extends to all cases. So as to costs in trespass, 2 G. 1, c. 11, s. 14. There were certain mischiefs connected with distresses to be remedied at the time of passing this Act, e. g., a party distrained for one 'cause and avowing for another ; Grenville v. The College of Physicians (c): or a distress might have been made by one person, and adopted by another : Duncan v. Areikleham (d); or the tenant might be desirous of saving expense by tendering the rent, which he could not do while in ignorance of the party distraining, and cause of distress. These mischiefs extend to all cases of distress, and would be remedied by the .construction given by us to the Act, but would remain as they were if that suggested by the other side is adopted. Again, the 7th section of the Act which provides for the appointment of repleÂvingers, who are appointed to "grant replevius and make deliverances of all distresses," shows the intention of the Legislature ; more especially as, by reason of the repeal of the 10 Car. 1, secs. 2, c. 25, s. 3, and 3 G. 2, c. 9, s. 4, under which Sheriffs' deputies were appointed for the same (a) 9 M. & W. 398. (b) 9 C. & P. 169. (c) 12 Mod. 387. (d) 3 C. & P. 172. * Vide 4 Ir. Law Rep. 285, and 5 Ir. Law Rep. 56. CASES. AT LAW. purposes, have been repealed by the 16th section of this same Act. The T. T. 1844. replevin jurisdiction begins at the 5th section, and is expressly confined Exch. Chang. to cases where the rent for which the distress ought to be made, shall not DANIEL exceed £50. Then follows the 6th section, which is general in its terms, V. and without any restriction ; as also the 7th ; while in the 8th, where the BINGHAM. Civil Bill jurisdiction is taken up, there is a return to the restrictive language. Then in the 16th section, the 7 & 8 G. 4, c. 69, which gave a jurisdiction to Magistrates in distresses for rent under £10, is repealed, and the two Acts respecting the appointment of deputies ; which shows that the Legislature considered that they had provided for all cases. It is said, that the provisions of the 22nd section relating to executors, which are equally extensive in language as those of the 6th section, require a similar restriction. But there is no necessity for any restriction even in that section ; for it may be necessary to examine any executor, no matter what the amount of the assets, to ascertain their real value; and therefore " any executor" may be summoned. Secondly.-Assuming that the enactment applies to all cases, the language and object show it to be mandatory: Crisp v. Bunbury (a); Steward v. Graves (b); Coroner of Stafford's case (c); Murphy in replevin v. Butler (d). If not mandatory, how is a party, a stranger, perhaps, to know the defendant, the cause of distress, or the amount claimed, so as to adopt the proceeding by civil bill, which is only given in cases of distresses for arrears not exceeding £50? Suppose, then, that by reason of the want of notice, the tenant is obliged to resort to the Superior Courts, or cannot make a tender in time ; the landlord has judgment, puts the tenant to great expense, and avoids personal examiÂnation; and the remedy proposed for this injury is (as suggested on the other side) a special action on the case. The grievance thus being the expensive necessity of...

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  • Lessee Bowen v Cleary
    • Ireland
    • Exchequer of Pleas (Ireland)
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