Domvile v Ward

• Jurisdiction: Ireland
• Judgment Date: 11 May 1865
• Date: 11 May 1865
• Court: Court of Common Pleas (Ireland)

Common Pleas.

DOMVILE

and

WARD.

Palmer v. Ekins 2 Lord Ray. Rep. 1550.

Palmer v. Manning 7 T. Rep. 537.

Cuthbertson v. IrvingENRENR 4 H. & N. 742; S. C., 6 H. & N. 135.

Taylor v. ZamiraENR 6 Taunt. 524.

Bullen v. Mills 4 N. & M. 25.

Stephenson v. LombardENR 2 East. 575.

Delap v. Leonard 5 Ir. Law Rep. 287.

Neale v. M'KenzieENR 2 Cr. M. & R. 84.

Hunt v. Coke Cuthbert's R. 242.

Cuthbertson v. IrvingENR 4 H. & N. 758.

Hayne v. MaltbyENR 3 T. R. 438.

The Irish Society v. Tyrrell Ante, p. 249.

M'Loughlin v. CraigIR 7 Ir. Com. Law Rep. 117.

Neale v. M'KenzieENR 1 M. & W. 742.

Vaughan v. Meyler 2 M. & Sel. 276.

The Ecclesiastical Commissioners v. O'ConnorIR 9 Ir. Com. Law Rep. 242.

Walton v. Waterhouse 2 Saund. Rep. 418.

The Duchess of Kingston's caseUNK 2 Sm. L. C. 642.

De Medina v. NormanENR 9 M. & W. 820.

lainson v. Tramere 1 Ad. & Ell. 792.

Burnett v. Lynch 5 B. & Cr. 589.

Carpenter v. Buller 3 Y. & Jer. 423.

Palmer v. Eakins 2 Lord Ray. 1550.

Parker v. ManningENR 7 T. R. 537.

Cuthbertson v. IrvingENRENR 4 H. & N. 742; S. C., 6 H. & N. 133.

Neale v. MackenzieENR 2 C. M. & R. 100.

Flood v. ThompsonENR 1 Roll. Rep. 198.

M'Loughlin v. CraigIR 7 Ir. Com. Law Rep. 117; S. C., 1 Ir. Jur., N. S. 328.

Doe v. Meyler 2 M. & N. 276.

COMMON LAW REPORTS. 381 E. T. 1865. CommonPleas. DOMVILE v. WARD.* May 4, 6, 11. To a plaint in ejectment for non-payment of rent allegÂing that one year's rent was due under a lease, the deÂfendant pleadÂed that, by inÂdenture, the father of the plaintiff deÂmised the preÂmises in the plaint menÂtioned to A, at a rent of £61. 15s. Od. a-year ; and that the said lease was duly assigned to the defendant, and that before the making of the said lease, a portion of the said premises, amounting to two roods and twenty-six perches, was, and thence hiÂtherto hath reÂmained, the absolute proÂperty in fee of B. The deÂfence then averred that neither the lesÂsor nor the plaintiff had, at the time of making the lease, or since, any right or interest in the said portion of the premises, and that neither the lessee nor the defendant, nor any other person holding under the said demise, ever obtained any possession or enjoyment of the said portion, but that the same had always remained in the exclusive possession of B, and that the value of the said portion was Xi. 14s. Od. a-year ; and the defence then averred tender of the residue of the rent. Held, on demurrer, that this was a good defence, as it amounted to a plea of eviction by title paramount. * This case, through mistake, was printed after the case of The Irish Society v. Tyrrell (ante, p. 249), which it ought to precede. 382 COMMON LAW REPORTS. E. T. 1865. holds under the said lease ; and that, at and before the making of CommonPleas. said indenture of the 28th of April 1836, a portion of said premises, DOMVILE amounting to two roods and twenty-six perches, or thereabouts, v. WARD. was, and thence hitherto bath remained, the absolute property in fee of the Grand Canal Company; and neither the said Sir Compton Domvile nor the plaintiff had, at the time of the making of the said demise, or thence hitherto, any right or interest in said portion of said premises ; and neither the said John Verschoyle nor the deÂfendant, nor any other person holding under said demise, has ever obtained any use, possession, or enjoyment of said premises, or any benefit or advantage therefrom ; but same has always, •since the making of said demise, remained in the exclusive possession of said Grand Canal Company and their servants; and defendant avers that said portion is worth annually the sum of £1. 14s. Od.; and, as to the residue of the said sum of £61. 15s. Od., being the sum of £57. 12s. 102d., the defendant says that, before the commencement of this action, on the 1st day of September 1864, he tendered said sum to the plaintiff, who, through his agents duly authorised in that behalf, refused to accept same ; and the defendant has been at all times ready and willing to pay said sum, and now brings the same into Court. Demurrer thereto.* The Solicitor-General and O'Connor Morris, in support of the demurrer. Michael Morris and Dillon, in support of the pleadings. O'Connor Morris. This plea is bad ; it is an attempt on the part of a tenant, * The following points were noted for argument :--That it appears from the said defence that the said Sir Compton Domvile, in the said defence mentioned, by indenture demised the premises, in the said summons and plaint and the said defence mentioned, to the said John Verschoyle, in the said defence mentioned ; and that the said prem;ses were afterwards assigned by the said John Verschoyle, by indenture, to the said James Ward, and that the said James Ward now holds the same under and by virtue of the said indentures; and therefore that the said James Ward is by law precluded and estopped from averring, &c.-[The demurrer set out the averments in the defence seriatim.] That the defence is doubly repugnant and self-contradictory, in admitting that the said Sir Compton Domvile bad a sufficient title in law to make the said demise, and then in stating facts which contravene such title, and are inconÂsistent with it. COMMON LAW REPORTS. 283 who admits that he holds by indenture, to dispute his landlord's E. T. 1865. title in part of the demised premises, as that title stood at the time CommonPleas. of making the demise. There is no principle of law better settled DOMVILE v. than this, that a lessee by indenture cannot question his lessor's WARD. title. The origin of this rule is to be traced to the first principles of our Common Law-to the relation of lord and tenant under the feudal system. Such was the fealty which the tenant owed to his lord, that a mere attempt to dispute the title of the latter caused a forfeiture. If this case had come before the Court in the days when the feudal system was in force, not only would the plea have been held bad, but the mere fact of putting it on the files of the Court would have operated as a forfeiture. The reason of the rule may be now lost, but the principle is established beyond question. In Palmer v. Ekins (a) the doctrine is laid down that a lessee by indenture cannot plead nil habuit in tenementis. In Palmer v. Manning (b), which was an action of covenant for rent, brought by the assignees of the lessor against the lessee, the same doctrine is broadly stated ; and, at page 538, Lord Kenyon, C. J., says :-" When the parties to this lease executed it, the one was " taken to be the lessor, the other as lessee ; both of them executed " the lease : now it is not pretended that there was not an incipient " estoppel ; if so, the estoppel must continue as long as the privity "of estate continues." In Cuthbertson v. Irving (c) a lease had been made by a mortgagor in possession to the defendant ; subÂsequently to the date of the lease, the mortgagor assigned the equity of redemption to the plaintiff; and rent had been paid under that lease by the lessee...