Gorman v La Touche

• Jurisdiction: Ireland
• Judgment Date: 11 February 1890
• Date: 11 February 1890
• Docket Number: (1889 — D. No. 455.)
• Court: Chancery Division (Ireland)

Ex. Div.

Appeal

Before ANDREWS, J.

(1889 — D. No. 455.)

GORMAN

and

LA TOUCHE

Renkin v. M'Murtry and WifeUNK 24 L. R. Ir. 290.

Haren v. ArchdaleUNK 14 L. R. Ir. 296.

Shaw v. The Earl of Jersey 4 C. P. Div. 120, 359.

The North London Railway Co. v. The Great Northern Railway Co.ELR 11 Q. B. Div. 30.

Cassidy v. CinnamondDLTR 15 Ir. L. T. R. 2.

Powell v. Heffernan Ibid. 78.

Semple v. Hunter Ibid.73.

Hedley v. Bates 13 Ch. Div. 498.

Hemphill v. FraserUNK 10 L. R. Ir. 87.

Boyd v. PhelanUNK Ibid. 330; 12 L. R. Ir. 355.

Montgomery v. O'HaraUNK 22 L. r. Ir. 608.

Clarke v. HallUNK 24 L. R. Ir. 316.

Tayleur v. WildinELR L. R. 3 Ex. 303.

Chaine v. NelsonUNK 12 L. R. Ir. 272.

Aslatt v. Corporation of Southampton 16 Ch. Div. 143.

Stannard v. Vestry of St. Giles, Camberwell 20 Ch. Div. 190.

Shaw v. Earl of Jersey 4 C. P. Div. 120, 359.

Shaw v. The Earl of Jersey 4 C. P. Div. 120, 359.

Civil — bill decree in ejectment — Subsequent order of Land Commission fixing judicial rent — Action for declaration of title — Interlocutory injunction — Irreparable injury.

VoL. XXVI.] Q. B. & EX. DIVISIONS. 583 GORMAN v. LA TOTTOHE (1). (1889-D. No. 455.) decree in ejectment-Subsequent order of Land Commission fixing judicial rent-Action for declaration of title-Interlocutory injunction-Irreparable injury. L., landlord of G., brought an ejectment against him on the title in the County Court. After the case had been partly heard, G.'s solicitor obtained an adjournment for the purpose of preparing an argument on a technical point. He then served an originating notice to fix a fair rent, and on the adjourned hearing of the ejectment he applied to the County Court Judge for a further adjournment, pending the hearing by the Land Commission of the fair rent application. The County Court Judge refused to adjourn the case further, and pronounced a decree to possession. G. appealed to the Judge of Assize. Before the assizes a Sub-Commission Court made an order fixing a fair rent, from which order L. appealed. The Judge of Assize affirmed the decree in ejectment, and refused to stay execution. L. attempted to execute the decree, but was forcibly prevented from doing so by G. G. subsequently issued a writ for a declaration of title, and for an injunction to restrain L. from executing the decree, and applied for an interlocutory injunction pending the hearing of the action. The appeal to the Land Commission was still pending : Held, by the Court of Appeal (O'Brien, C.J., and Fitz Gibbon and Barry, L.JJ.), reversing the Exchequer Division (Andrews, J.), that the injunction should be refused. MOTION for an injunction to restrain the defendant from exeÂcuting a civil-bill decree for the recovery of possession of certain lands in the county of Wicklow. The action was brought by the plaintiff to establish his title to part of the lands of Lower Rathdown, containing 12 acres 2 perches statute measure, situate in the county of Wicklow, which the plaintiff claimed to be entitled to hold as yearly tenant to the defendant, at the yearly fair rent of £18 7s., and for an injunction to restrain the defendant from executing a decree for possession of said lands. (1) Before ANDREWS, J. . 584 LAW REPORTS (1REL AND). IL R I. Ex. Div. The application was grounded on the affidavit of the plaintiff, 1890. who deposed that his father John Gorman, prior to, and at the GORMAN time of, his death (which occurred twenty-nine years before), v. Lk TurcHE. was tenant in occupation of the said lands as tenant from year to year to the defendant. On his father's death the deponent's brother John succeeded him as tenant, and so continued in occuÂpation until his death, which occurred in 1880. Shortly before his death he (J. Gorman, jun.) entered into an agreement with the defendant, which was as follows :- AGREEMENT with John Gorman, dated the 7th day of December, 1878. John Gorman having given up possession to W. R. La Touche, Esq., of 2 acres and 2 roods Irish for building plots at Greystones, Mr. La Touche has let to said J. Gorman a field from year to year, lately held by Mr. Morris, conÂtaining 3A. lu. 3P. Irish, at a rent of £3 per Irish acre, free of poor and sanitary rates, county cess, and income tax. As said field given in exchange contains 3 roods and 3 perches Irish, over and above the land he has given up as aforesaid, J. Gorman hereby agrees to give up 3 roods 3 perches Irish of land, belonging to his original holding, withÂout any further compensation, when required by his landlord to do so. Yearly rent-£9 16s. Dated this 7th day of December, 1878. Rent to commence from 25th March, 1879 (nine). his Jom X GORMAN. mark. Signed in the presence of R. H. Kennedy. John died in 1880, whereupon the plaintiff succeeded as tenant, and used and occupied same as an ordinary agricultural holding, and the plaintiff was recognized by the defendant as the tenant, and with the consent of the other members of his family who resided with him. In 1882 the plaintiff and defendant made a joint application to the Land Commission for an advance on account of arrears of rent, under the provisions of the Arrears of Rent (Ireland) Act, 1882, on foot of which application the defenÂdant received £18 3s. Also, in 1882, the plaintiff, at the defendant's request, surrendered to the defendant a small portion of the said holding, for which the defendant paid him £7 compen= sation ; and in 1886 the plaintiff similarly surrendered 3 roods, VOL. XXVI.] Q. B. & EX. DIVISIONS. 585 and received £10 compensation therefor, and his rent was reduced Ex. Div. by £1 5s. per annum. Early in 1888 the defendant required the 1890. UORMAN plaintiff to surrender 3 roods and 3 perches more (being the v. amount specified in the agreement of the 7th December, 1878), LA ToucuE. but the plaintiff declined to do so. In consequence of such refusal, the defendant (La Touche) caused the plaintiff (Gorman) to be served with a notice to quit the entire holding on the 29th September, 1888. This notice was not stamped, nor addressed to Gorman, but to the representatives of, and all persons claiming to represent, J. Gorman, deceased. In December, 1888, a civil-bill ejectment on the title, grounded on the said notice, was served on Gorman. This ejectment came on for hearing before the County Court Judge of Wicklow on the 15th January, 1889. On that hearing Gorman was represented ,by Mr. J. K. Toomey, solicitor. On the opening of the case Mr. Toomey objected to its being heard, on the ground that the notice to quit was not stamped. The Judge then adjourned the case until the following day, for further argument on that point. Before the case came on again Mr. Toomey advised that an originating notice to fix a fair rent of the holding, under the provisions of the Land Law (IreÂland) Act, 1881, should be served on Gorman's behalf. The originating notice was accordingly served. When the case was called on, upon the 16th January, 1889, Mr. Toomey applied on behalf of Gorman for a further adjournment, on the ground of the service of the originating notice. The Judge refused that application ; and having heard the case, decided that the notice to quit was good, and gave a decree for possession. From such decree, and the order refusing the adjournment, Gorman appealed to the going Judge of Assize. On the 27th February, 1889, the application to fix a fair rent came on for hearing before a Sub-Commission Court, of which Mr. Reeves, Q.C., the legal commissioner, was president. Counsel on behalf of the landlord appeared, and objected to the hearing of the case on three grounds-1, that although the holding was an agricultural holding, it was a holding with a superadded condition to give up to the landlord what was required from time to time for building, on receiving due compensation ; 2, that the ejectment decree absolutely determined the tenancy ; and 3, that Gorman, the tenant, had no title in the holding. The Sub-Commissioners, having heard the case and the questions raised, reserved judgment. On the 6th March, 1889, Mr. Reeves delivered judgment in favour of Gorman on all the points raised, and fixed the fair rent at £18 7s. From this order La Touche appealed, and the appeal was, at the time of the hearing of the present application, still pending. The appeal from the decree of the County Court Judge came on for hearing at the Wicklow Spring Assizes on the 20th March, 1889, before Mr. Justice Holmes. His Lordship having heard the case said he must treat it in the same way as it stood at the original hearing before the County Court Judge, and affirmed the decree for possession. Gorman submitted that under the order of the Sub-Commissioners, dated the 6th March, 1889, he was entitled to continue in the holding as tenant. He further deposed that the writ of summons was issued on the 24th April, 1889, but was not then served, on account of negotiations between the parties to effect a settlement; but the negotiations having been broken off, the action was proceeded with. Mr. J. K. Toomey, the plaintiff's solicitor, made an affidavit verifying the statements made by the plaintiff, and deposed that by an order, dated the 8th October, 1889, it was ordered that the plaintiff be at liberty to serve, together with the writ, a notice of motion for an injunction to restrain the execution of the said civil-bill decree. The writ and other necessary documents were immeÂdiately sent for service on the defendant (La Touche) ; but, inasmuch as the defendant was then in England, the same could not be served. The negotiations for a settlement were then resumed, but were at the date of the application broken off. Mr. G. Earle, the defendant's land agent, made an affidavit, in which he denied that the plaintiff was recognized as the tenant of the holding, but alleged that the, plaintiff and his brother and sisters were recognized as tenants, as representatives of J. Gorman, deceased. He deposed that it...