H. M. Secretary of State for War v Booth

• Jurisdiction: Ireland
• Judgment Date: 05 June 1900
• Date: 05 June 1900
• Docket Number: (1900. No. 16,727.)
• Court: Queen's Bench Division (Ireland)

H. M. Secretary of State for War

and

Booth (1).

Q. B. Div.

(1900. No. 16,727.)

CASES

DETERMINED BY

THE QUEEN'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.

1901.

Landlord and tenant — Lease for lives and term of years thereafter — Presumption of death of cestui que vie — 7 Wm. 3, c. 8 (Ir.) — Evidence — Costs — Liability of the Crown — 18 & 19 Vict. c. 90, ss. 1, 2.

The defendant held certain premises, under a lease made in 1770, for three lives (A, B, and C), and for sixty-one years thereafter. A and B died prior to 1837. C was, in 1770, aged nine years. The Secretary of State for War, as assignee of the lessor, served, in 1891, a notice to quit upon the defendant, and, on the 11th November, 1898, brought the present action of ejectment, founded on such notice. If C. was alive in 1837 (when he would have been seventy-six years of age) the lease would have been in subsistence at the date of the notice to quit. The plaintiff produced (a) some slight evidence of family reputation as to C's death, and (b) a recital, in a “memorial” (lodged in the Registry of Deeds office), of an assignment (in 1791) of a sublease of the same premises, setting forth that the original lease of 1770 was for the lives of A (then deceased) and his sons B and C, “who then or lately were in the East Indies, or elsewhere out of this kingdom.”

On motion for judgment, pursuant to leave reserved at the trial:—

Held, that, this not being a case of pedigree, the evidence as to family reputation was inadmissible; that, even if the statement in the memorial were admissible in evidence as being against proprietary interest, it was not sufficient, within 7 Wm. 3, c. 8 (Ir.), to ground the statutory presumption that C, “having remained beyond the seas, or absented himself in the realm, for seven years, …” had ceased to exist; and that, accordingly, judgment should be entered for the defendant.

Held, further, that no order could be made for costs against the Secretary of State for War. Re Beadle (7 Ell. & Bl. 92) Followed.

New Trial Motion.

Action to recover possession of certain premises in Ship-street, Dublin, held under an indenture of lease, dated 8th March, 1770,

made between Joseph Matthews (the lessor) and Francis Turton (the lesssee), for the lives of Francis Turton (the lessee), and of Robert Turton, and John Turton, his sons, the first [being then] aged eleven and the latter aged nine years, and for sixty-one years from the death of the surviving life.

The lessor's interest passed in 1869 to the Crown,

The lessee's interest ultimately became vested in the defendant James Booth. By indenture of 20th July, 1781, Francis Turton assigned the lease of 1770 to Morgill, who on 29th September, 1789, assigned same to Power, who on 3rd March, 1790, sublet same to John Hewson, for the lives of Francis Turton, Robert Turton, and John Turton and forty-one years from the death of the surviving life. John Hewson by assignment (8th August, 1791), reciting the sub-lease of 1790, as to hold from the 29th September, 1789, for the lives of “Francis Turton and Robert Turton and John Turton, sons of said Francis Turton, who then or lately were in the East Indies, or somewhere out of the United Kingdom” assigned the premises in the sub-lease to Thomas Parsons. The interest under the lease of 1770, and this sub-lease ultimately merged in the interest of the defendant.

The original assignment of 8th August, 1791, was not forth-coming, and the evidence of its contents was obtained from the memorial thereof (produced) in the Registry of Deeds.

Notice to quit was served on the defendant on the 25th September, 1891, and a demand for possession was formally made.

It was conceded that Francis Turton and Robert Turton died prior to 1837. If John Turton was alive on the 11th November, 1837 (when he would have been seventy-six years of age the lease would have been in subsistence at the date of the notice to quit and of the issue of the writ of summons.

Some slight evidence was given on the plaintiff's behalf at the trial of family reputation with a view to proving that John Turton must have died prior to 1837.

Mr. Justice Johnson before whom the case was tried, directed the issue-paper to be signed in blank, to be filled up, if necessary, as the Court might order, and abstained from giving judgment, leaving either party to move.

The Solicitor-General (Wright, Q.C.) (Samuels, Q.C., Henry, Q.C., and Vesey Fitz Gerald, with him), for the Secretary for War, argued that the memorial of the assignment of 8th August, 1791, was receivable in evidence as being “against proprietary interest”: Price v. Lord Torrington (1), Higham v. Ridgeway (2), and the cases cited in Smith's L. C., vol. ii., at p. 335; and that, so admitted in evidence, it was sufficient to found a presumption (under 7 Wm. 3, c. 8 (Ir.)) of John Turton's continued absence beyond seas, and so of his death, within seven years from its date. Further, that the evidence of family reputation offered was admissible, and, if admitted, proved that John Turton must have died prior to 1837: Haines v. Guthrie (3) as qualified by Palmer v. Palmer (4).

J. H. Campbell, Q.C, and Jefferson, for the defendant, contended that the memorial (even if admitted in evidence) was not evidence “against the defendant's proprietary interest” (under the lease of 1770), within the principles laid down in Higham v. Ridgeway, etc. (2); further, that the recital in the memorial, even if admitted, did not, as a statement of fact, support a presumption of continued absence beyond the sea for seven years before or after its date; and, lastly, that the evidence of family reputation was inadmissible: Haines v. Guthrie (3); and even if admitted, did not amount to evidence proper to be submitted to the jury.

Henry, Q.C., in reply.

Cur. adv. vult.

Palles, C.B.:—

This is an action of ejectment on the title for recovery of premises which were demised by a lease of the 8th of March, 1770.

At the trial, before Johnson, J., no question was left to the jury, but a verdict was taken in blank, to be filled up as the Court should direct. Thus we are the tribunal to determine all questions of fact, as well as of law.

The substantial question in the case is whether the lease expired before the commencement of the action, on the 11th November, 1898. The lease was for three lives, viz. those of Francis Turton, and of his sons, Robert Turton, then aged eleven, and John Turton, then aged nine, and the longest liver of them; and sixty-one years from the death of the survivor. Thus, to entitle the plaintiff to recover, the surviving life should have died before the 11th of November, 1837.

The only question which has been argued before us for the defendant relates to John Turton, the youngest of the three lives. As he was nine years of age in 1770, he would, if alive on the 11th of November, 1837, not have been more than seventy-seven years old. From his mere age, therefore, death at or before this period cannot be presumed. The evidence of Canon Carmichael, as to the reputation of the family, is not admissible upon the question in controversy, which is not a matter of pedigree: Haines v. Guthrie (1): and indeed, even were it admissible, it would not assist the plaintiff.

The determination of the question must, therefore, turn upon the effect of the memorial registered in the Registry of Deeds Office...