Kean v Robinson

• Jurisdiction: Ireland
• Judgment Date: 20 April 1910
• Date: 20 April 1910
• Court: Court of Appeal (Ireland)

Kean

Appellant

and

Robinson

Respondent (1).

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'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.

1910.

Justices — Summary Jurisdiction — Case stated — Summons heard by several Justices — Death of some of Justices before signing case — Case signed by surviving Justice alone — Jurisdiction of Court to hear — 20 & 21 Vict. c. 43, s. 2 — Caretaker — Summons for delivery of possession — Writ of possession issued, but physical possession not taken — Caretaker's agreement signed — Estoppel — Landlord and Tenant (Ireland) Act, 1860 (23 & 24 Vict. c. 154), s. 86 — Jurisdiction — Appeal — (20 & 21 Vict. c. 43), s. 6.

A summons was heard at Petty Sessions before three Justices, A., B., and C., who unanimously dismissed it, but unanimously agreed to state a case under 20 & 21 Vict. c. 43. A case, the draft of which had been approved of on behalf of both the parties, was approved of and signed by A. It was approved of by B., who, however, died without having signed it. C. died without having either approved of or signed it.

Held (by Lord O'Brien, L.C. J., and Madden, J.; Wright, J., diss.), that there was jurisdiction to hear the case.

R. held certain premises under a lease for three lives, subject to a mortgage to K. In the year 1902, K. recovered judgment for possession, and a writ of possession was issued. Actual physical possession was not taken under the writ, but R. signed a caretaker's agreement acknowledging that he was in possession solely as caretaker for K. R. continued to pay the rent and outgoings, but paid nothing either for principal or interest on foot of the mortgage. K. died, and the appellant, his personal representative, demanded possession from R., and on possession being refused, applied to the Justices at Petty Sessions, upon a summons issued against R., for an order for delivery of possession of the premises.

Held, by Lord O'Brien, L.C.J., and Madden, J., that the appellant was entitled to such order.

The respondent having appealed from this Order to the Court of Appeal:

Held, following Harvey v. Copeland (32 L. R. Ir. 419), that no appeal lay, and the Court of Appeal ordered the case to be struck out, but without costs.

Case Stated under 20 & 21 Vict. c. 43.

At a Petty Sessions held for the Petty Sessions District of Balbriggan, County Dublin, on the 25th May, 1909, there were

three Justices present, viz., Mr. Anthony S. Hussey, Mr. Edward H. Woods, and Mr. John Markey. A complaint was heard by them on foot of a summons issued by the appellant, as complainant, against the respondent, as defendant, requiring the defendant to show cause why he should not be ordered to deliver up possession of the licensed house and premises in Great Strand Street, Skerries, County Dublin, held by him as caretaker to the complainant. After hearing the evidence the three Justices unanimously decided to dismiss the summons, but on the application of the solicitor for the complainant, they unanimously decided to state a case for the opinion of the King's Bench Division. The circumstances attending the stating of this case are thus set out in an affidavit which was made by the Clerk of Petty Sessions:— “5. Subsequently, on the 17th July, 1909, the solicitor for the said F. John Kean forwarded to me a draft of the case stated, which had been approved of by the solicitor for the defendant, for the perusal and approval of the magistrates; and on the 20th July, 1909, Messrs. Woods and Hussey met at the Courthouse, Balbriggan, and discussed the draft of the case stated, and approved of same, and directed me to return same to complainant's solicitor for the purpose of having same engrossed and returned to them for their signature. 6. I was present when Messrs. Woods and Hussey were discussing the draft of the case stated, and I know that Mr. Woods fully approved of the case as stated. 7. Mr. John Markey, the other magistrate, called on me several times in reference to the case, and I believe that but for the fact of his death he would have signed the case as stated. He concurred with the other magistrates in agreeing to state a case, and at each interview I had with him he appeared willing to sign the case stated. 8. The said John Markey did not attend the Petty Sessions at Balbriggan since the 25th May last. 9. I know and believe that Mr. Edward H. Woods fully approved of the contents of the case stated, and that he would have signed same but for the fact of his death. 10. The case stated was returned to me engrossed by the solicitor for the complainant on the 3rd September, 1909, and I communicated with the magistrates in reference to same, asking them to attend at the Courthouse, Balbriggan, for the purpose of signing same, but there was considerable delay in their doing so, owing to the illness of Messrs. Woods and Markey, and also to the death abroad of a sister of Mr. Hussey, with the result that when Mr. Hussey had signed the case, it was too late to get it signed by either Mr. Woods or Mr. Markey, Mr. Woods having died on the 4th October, 1909, and Mr. Markey having died on the 4th November, 1909. 11. The case as stated actually represents what occurred at the hearing of the summons on the 25th May, 1909, as I am aware of the facts, having been present at the hearing of the complaint on that day; and I believe that each of the magistrates who have died would have signed the case as stated, but for the fact of their death, and would concur in the statement of the facts as set out in the case stated. 12. The case as subsequently engrossed and signed by Mr. Hussey is a correct and accurate copy of the draft submitted for the approval of the magistrates, and approved of by them.”

The case referred to set out as follows:—

“The summons in this case was brought under sect. 86 of 23 & 24 Vict. c. 154 … The facts proved on the hearing or admitted by both sides were as follows:—

“Formerly Eliza Robinson, who held the licensed premises before mentioned, from Lord Holmpatrick, under lease bearing date the 31st January, 1842, for a term of forty-eight years or three lives at a yearly rent, executed a mortgage of the said premises for the sum of £100 with interest at the rate of £6 per cent. per annum to one John Morris Kean … The deed bore date the 13th September, 1890. The lessee's interest in the said lease of the 31st January, 1842, subsequently became vested in George Robinson, the defendant in the present case, and no payment having been made on foot of the said mortgage either for interest or principal, the said John Morris Kean on the 13th November, 1902, recovered judgment for possession of the said premises against the defendant in an action in the King's Bench Division … The writ of summons was produced, and the original writ of possession was produced … and bears a note of having been received in the Sheriff's Office on the 21st November, 1902, at 2.30 o'clock, p.m., and also bears an endorsement signed by the Sheriff … as follows:—'County of Dublin to wit, I authorize and empower John Doody and Robert Grundy, my bailiffs, or either of their assistants, to execute the within writ of possession. Given under my hand and seal this 22nd day of November, 1902, A. Jameson, Sheriff.’ It does not appear from any endorsement that the said writ of possession was duly executed, and beyond producing the said writ the complainant offered no evidence that it had been duly executed. The complainant, who is the administrator of the said John Morris Kean, now deceased, admitted that he had not paid the rent issuing out of the premises, or the licence duty or the taxes, nor did he know by whom the said rent, licence duty, and taxes had been paid since the execution of the mortgage. He could not say what sum was now due on foot of the mortgage, but as far as he knew no interest had ever been paid on foot thereof.

“The defendant admitted on examination that a man attended from the Sheriff's office to take up possession of the premises, and a caretaker's agreement was handed in and duly proved and marked by us, signed George Robinson … The caretaker's agreement is set out in the appendix hereto. The defendant admitted that as far as he knew no money had ever been paid either by him or anyone else before him on foot of the said mortgage. He always paid the rent, taxes, and licence duty, and some years ago entered into an agreement with his landlord for a new lease. The defendant in his evidence admitted his signature to the document, and that he had signed the document on the occasion of the Sheriff's man going there. On cross-examination no question was put to him to suggest that he had ever been physically put out of possession.

“John M. Kean, died on the 5th May, 1908, intestate, and letters of administration of his personal estate were granted on the 15th October, 1908, to John F. Kean, the complainant in the summons.…”

The case then set out a demand of possession from the defendant by John F. Kean, and a refusal by the defendant to give up possession. It set out the contentions raised on behalf of the defendant, viz,, first, that John F. Kean should prove his title to the premises, and prove that he was owner within the meaning of section 86 of 23 & 24 Vict. c. 154; and secondly that complainant must prove, and had offered no evidence to prove, that George Robinson had been actually and physically put out of possession of the premises; and the case continued:

“We held upon the evidence that John F. Kean was administrator of John M. Kean (the mortgagee of the lease-hold interest in the said premises), and, if such be sufficient evidence of ownership, that he was owner within the meaning of the said section.

“We held as a matter of law that, although the defendant had signed the caretaker's agreement which was produced and proved before us, he was not put into possession of the...