John Colhoun v Henry Fox

• Jurisdiction: Ireland
• Judgment Date: 24 May 1842
• Date: 24 May 1842
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

JOHN COLHOUN

and

HENRY FOX.

Hayes v. WarrenENR 2 Str. 932.

King v. SearsENR 2 C. M. & R. 53.

Spyer v. ThelwellENR 2 C. M. & R. 692.

Deriemer v. FennaENR 7 M. & W. 440.

Church v. Church Sir T. Ray. 260.

Lee v. MuggeridgeENR 5 Taunt. 36.

Atkins v. BarnwellENR 2 East, 505.

Pillans v. MieropENR 3 Burr. 1671.

Cotton v. O'Conor 1 C. & Dix, 365.

Exall v. PatridgeENR 8 Taunt. 308.

Wennals v. AdneyUNK 3 B. & P. 252, n.

CASES AT LAW. 369 1842. Queen'sBench. JOHN COLHOUN v. HENRY FOX. AssuMrslT for use and occupation.-The first count of the declaration stated, that the defendant was indebted to the plaintiff in the sum of 50 for the use and occupation of a certain dwelling-house and land, with the appurtenances, of the said plaintiff by the said defendant, and at the request and by the permission of said plaintiff, for a long term, then elapsed, had held, occupied, and enjoyed. To this count the defendant demurred specially, assigning for cause,-that the plaintiff had not alleged any request of or on the part of the defendant, to have, hold, occupy and enjoy the said dwelling-house and land in said count mentioned. Joinder in demurrer. Mr. C. Maturin, with whom was Mr. Sproule, in support of the demurrer. A request on the part of the defendant is a material averment in an action 'of this kind,-here there is no such averment ; on the contrary, it is alleged that the request was on the part of the plaintiff; and, from all that appears on this declaration, the defendant may have been a mere care-taker. Hayes v. Warren (a); I Saund. 264, n. 1; King v. Sears (b). Parke, B., in giving judgment in that case says,-" A request would only be material "in case of an executed consideration. An averment of request is only "necessary in cases of executed consideration." Here there is an executed consideration, and, therefore, a request should have been stated, and in all the precedents in the books on actions of this nature, a request is stated ; 1 Ch. P1.374, 378 ; 2 ibid 40 ; Hen, Forms 36. Mr. Hunter, and Mr. John Brooke, Q. C., contra.-The Court will intend there is a sufficient request on the part of the defendant: "by the defendant and at the request," must be considered to mean at his reÂÂquest ; a request on the part of the plaintiff would be inconsistent, and the Court will not support such a construction : Spyer v. Thelwell (e); Deriemer v. Fenna (d). But on principle this demurrer cannot be supported ; it cannot be maintained as a...