Hutchins v Vaughan

• Jurisdiction: Ireland
• Judgment Date: 17 January 1861
• Date: 17 January 1861
• Court: Exchequer (Ireland)

Exchequer.

HUTCHINS

and

VAUGHAN.

Foot v. WarrenIR 10 Ir. Com. Law Rep. 1.

Watson v. ClooneyIR 1 Ir. Com. Law Rep. 58.

Waarner v. WillingtonENR 3 Drew. 523.

Smith v. NealeENR 2 C. B., N. S., 67.

Jack d. Thompson v. Home 1 Jebb & S. 440.

Crofton v. SholdiceIR 5 Ir. Com. Law Rep. 152.

Grey v. Pearson 6 H. L. Cas. 61.

Chadwick v. ClarheENR 1 C. B. 700.

Pitman v. WoodburyENR 3 Exch. 4.

Swatman v. AmblerENR 8 Exch. 72.

Warner v. Woodbury 2 Jebb & S. 424.

West v. DaviesENR 7 East, 363.

COMMON LAW REPORTS. 349' for a week, the defendants to be at liberty to make such application as they may be advised, to Serjeant Howley.-Order " It is ordered " by the Court that this motion do stand over for a week ; the said " defendants being in the meantime at liberty to make such applicaÂ" tion to Mr. Serjeant Howley, the learned Judge who tried this case, " as they may be advised, due notice of any such to be given to " the plaintiff." An application having been accordingly made to Serjeant Howley, he gave the following certificate :-" I hereby certify that, " at the trial of this cause, before me, at the last Assizes of. Sligo, " the findings of the jury on the seventh and tenth issues were in " favour of the defendants ; and that in transcribing the postea, on " the record, the word " not" was inadvertently omitted, and should "have been inserted between the words did' and receive' in " the finding on the said seventh issue, and between the words " had' and the' in the finding on the tenth issue." M. T. 1860. Exchequer. POWELL v. ATLANTIC STEAM NAVIGATION COMPANY. On this day 'P. Blake mentioned that they had procured the Nov. 23. certificate of Serjeant Howley, to the effect above stated, and their Lordships thereupon directed the postea to be amended, purÂsuant to the Judge's certificate. HUTCHINS v. VAUGHAN.* ' H. T. 1861. Jan. 14, 16, 17. THIS was an ejectment for non-payment of rent. The case was Ejectment for non-payment tried before FITZGERALD, B., at the Summer Assizes for the county of rent cannot be sustained under the Ejectment Statutes, upon an article, minute or contract in writing, exeÂcuted by the tenant, and not by the landlord, though it ascertains the rent, and the lands have been enjoyed under it.-[FITZGERALD, B., dissentiente.] * Before PIGOT, C. B., and FITZGERALD and HUGHES, BB. It has been thought desirable to report this case, notwithstanding the recent change in the law, as an appeal is pending ; and there is some doubt how far the late Act (23 & 24 Vie., c. 154) applies to existing contracts.-REP. 350 COMMON LAW REPORTS. of Cork. The plaintiff proved an instrument, dated the 9th of December 1848, by which he purported to demise to the defendant the lands comprised in the ejectment, at an annual rent of £147. 4s. It was also proved that the defendant occupied and paid rent under this agreement. The document, when produced at the trial, appeared to be executed by the tenant only. The defendant's Counsel then submitted that ejectment for non-payment of rent could not be maintained upon such an instrument. His Lordship, however, was of a different opinion, and directed a verdict for the plaintiff, reservÂing liberty to the defendant to move to change' ttat verdict into a verdict for him, if the Court should be of opinion that the ruling was wrong. A conditional order having been obtained to enter a verdict for the defendant, pursuant to the leave reserved H. E. Chatterton (with him W. A. Exham) showed cause. Serj eant Sullivan and D. C. O'Riordan, contra. The following authorities were referred to :-Foot v. WarÂren (a); Watson v. Clooney (b); Warner v. Willington (c); Smith ' v. Neale (d) ; Jack d. Thompson v. Home (e); Crofton v. SholÂdice (f) ; Grey v. Pearson (g); Chadwick v. Clarke (h); Pitman v. Woodbury (i) ; Swatman v. Ambler (k); Jack d. Warner y. Martin (1); 5 G. 2, c. 4 ; 25 G. 2, c. 13 ; 8 G. 1, c. 2 ; 2 Fur. Land. and Ten., pp. 1137, 1138. - Cur. ad. vult. Their Lordships, differing in opinion, delivered judgment seriatim. HUGHES, B. Jan. 17. This is an ejectment for non-payment of rent, brought by the plaintiff for the recovery of certain lands in the county of Cork. (a) 10 Ir. Com. Law Rep. 1., (b) 1 Ir. Com. Law Rep. 58. (c) 3 Drew. 523. (d) 2 C. B., N. S., 67. (e) 1 Jebb & S. 440. (f) 5 Ir. Corn. Law Rep. 152, (g) 6 H. L. Cas. 61. (h) 1 C. B. 700. (i) 3 Exch. 4. (k) 8 Exch. 72. (1) 2 Jebb & S. 424. COMMON LAW REPORTS. 351 The action was tried before Baron FITZGERALD, at the last Assizes H. T. 1861. Exchequer. for the county of Cork, and, under his direction, the jury found a HUTCHINS verdict for the plaintiff ; but the Court reserved liberty to the v. defendant to move to change that verdict into a verdict for the VAUGHAN. defendant, if this Court should be of opinion that the direction so given was wrong in point of law. The question now comes before us upon the plaintiff showing cause against a conditional order obtained by the defendant, that a verdict should be entered for him. The plaintiff produced and proved at the trial a certain instrument, bearing date the 9th day of December 1848, and purporting to have been made between the plaintiff and defendant, whereby the plaintiff demised, or purported to demise, to the defendant, the lands in question, for a term of twenty-one years, at the rent of £147. 4s. That document was executed by the defendant, but was not executed by the plaintiff; and the question that arose, and upon which our opinion is now required, was, can an ejectment for non-payment of rent be sustained where the instrument by which the rent is ascertained, and under which the premises have been enjoyed, was executed by the tenant only, and was not executed by the landlord ? It is admitted that this action cannot be sustained, unless it comes within the provisions of the 25 G. 2, c. 13. The 2nd section of that statute recites that " Several lands, tenements and hereditaÂ" meats, in divers parts of this kingdom, are enjoyed under articles, "minutes or contracts, in writing, whereby the rent payable for the " same is ascertained, but the said...