Gillman v Bourke and Others

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 14 November 1913
• Court: King's Bench Division (Ireland)
• Date: 14 November 1913

Gillman

and

Bourke and Others (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1914.

Practice — Civil bill — Removing into Superior Courts — Ejectment for non-payment of rent — 37 & 38 Vict. c. 66, s. 2 — Rentcharge — Remedies for recovery of— 14 & 15 Vict. c. 20 — Retrospective operation.

A civil-bill ejectment for non-payment of rent is not within the provisions of s. 2 of 37 & 38 Vict. c. 66, and an order cannot he made for the trial of such ejectment in the Superior Courts.

Semble, the remedies for the recovery of rentcharges given by 14 & 15 Vict. c. 20, apply to rentcharges created before the passing of the Act.

Summons.

Application on the part of the defendants, that the plaintiff show cause why the proceedings in the County Court in respect of two civil-bill ejectments for non-payment of rent, brought by the plaintiff against the defendants, should not be stayed, in order that the matters in issue should be tried in the Superior Courts, or in the alternative that the records be transferred to the High Court of Justice in Ireland, and that all further proceedings be had there.

By two indentures, purporting to be by way of lease, dated respectively the 9th March, 1791, and the 15th September, 1795, the premises sought to be recovered by the civil bills had been demised by predecessors in title of the plaintiff to predecessors in title of the defendants, for terms of 9999 years and 999 years respectively, at the respective yearly rents of £7 10s. and £24.

At the date of these leases the respective lessors held the lands under a lease for a term of 99 years determinable upon three lives with a covenant for perpetual renewal. This lease had been converted into a fee-farm grant in the year 1868.

The affidavit of the defendants' solicitor on which the present application was grounded set out matters going to show that the title to the lands was of a complicated character, and that the decisions on the civil-bill ejectments would affect the title to lands the annual valuation of which was £157 5s.

Serjeant Sullivan, K.C. (with him Timothy Sullivan), for the defendants:—

The application is based on sect. 2 of 37 & 38 Vict. c. 66 (1). Lands of greater value than £20 will be affected by the decision in the present case. This section is extended to ejectments on the title by s. 54 of 40 & 41 Vict. c. 56. Here the plaintiff is really contesting the title to a wide tract of land. In Nolan v. Cullen (2) a civil-bill ejectment for overholding was brought up.

The instruments of 1791 and 1795, though purporting to be sub-leases, were in reality assignments, inasmuch as they were for terms greater than the term for which the lessors themselves held, and the rents reserved were merely rentcharges. The effect of the fee-farm grant of 1868 was to vest in the predecessor in...