E. J. Kenne and A. Kenne v M'Balaine and Others
Jurisdiction | Ireland |
Judgment Date | 03 November 1866 |
Date | 03 November 1866 |
Court | Exchequer (Ireland) |
Exchequer.
Murphy v Carey 12 Ir. Com. Law Rep., App. ix.
Bell v. BeattyIR 6 Ir. Com. Law Rep. 399.
Murphy v. TooheyIR 3 Ir. Com. Law Rep. 226.
Figgis v. Hickey 7 Ir. Jur. N. S. 160.
654 COMMON LAW REPORTS. M. T. 1866. Exchequer. E. J. KEENE and A. KEENE v. M'BLAINE and others.* (Exchequer.) Tars was an action in ejectment for non-payment of rent. The sum• mons and plaint was as follows :-" Victoria, &c., greeting. James " M'Blaine, the defendant, hath been summoned to answer the comÂÂ" plaint of E. J. Keene and Augustine Keene, the plaintiffs, who "complain that the defendant holds all that and those, &c., as tenant "to the plaintiff under a lease, at the yearly rent of 46. 3s. ld., " and that the sum of 46. 3s. Id., being for one year of such rent "due and ending on the 1st day of June last, is due to the plaintiffs, " and therefore the plaintiffs pray judgment against the said deÂÂ" fendant, to recover the possession of said lands and premises. " Therefore, the defendant is hereby required," &c. The defence was as follows :-" The defendant James M'Blaine appears and " takes defence to the action of the said E. J. Keene and A. Keene, " and says that the defendant does not hold the premises in the "plaint mentioned as tenant to the plaintiffs, as alleged, and there-"fore," &c. R. W. Gamble now moved to set aside this defence. The plaint here is in the usual form ; it does not name any other defendants but the one. This case is distinct from all previous cases ; for those cases went upon the third section of the Landlord and Tenant Act.f In this case the defence is wrong, unless you hold that the third section of that Act actually repeals the sections of the Common Law Procedure Act relating to ejectment. The sixth secÂÂtion of the Common Law Procedure Act recognises the difference between personal actions and actions of ejectment. The latter action was always one in rem. The Common Law Procedure Act, a. 194, provides, with respect to the action of ejectment, that, " Where any * Coram the Full Court. t 23 & 24 Vic., c. 154. COMMON LAW REPORTS. 655 " party shall claim possession of any lands, tenements, or heredita- M. T. 1866. Exchequer. " ments, and shall be desirous of proceeding by ejectment for the KEENE " recovery of the same, in any of the said Superior Courts of Law, v. " such party shall commence any action for such purpose by a writ NOBLAINE. "of summons and plaint; which writ shall be directed to the imme diate tenant, or any one tenant in possession as defendant, with the " addition of the words 'and all persons concerned. "-[PICOT, C. B. Is not the first allegation of the plaintiff here...
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