Kenna v Nugent

• Jurisdiction: Ireland
• Judgment Date: 11 June 1873
• Date: 11 June 1873
• Court: Court of Exchequer Chamber (Ireland)

Exch. Cham.

Before WHITESIDE, C. J., O'BRIEN and BARRY, JJ., FITZGERALD, DEASY, and DOWSE, BB.

KENNA

and

NUGENT.

Hull v. WoodENR 14 M. & W. 682.

Astley v. SpurrellELR L. R. 1 Q. B. 72.

Rex v. JoblingENR 1 Rus. & Ry. 525.

Hughes, App., Overseers of Chatham, Resp.UNK 5 M. & G. 77.

Grantham v. Hawley Hubbard, 132.

Davis v. HardyENR 6 B. & C. 225.

Bertie v. BeaumontENR 16 East, 33.

Nowlan v. AblettUNK 5 Tyrw. 709.

White v. BayleyENR 10 C. B. (N. S.) 227.

O'Connor v. Tyndall 2 Jones, 20.

Mesne rates — Judgment by default in ejectment — Estoppel — Emblements — 23 & 24 Vict. c. 154, s. 34.

464 THE IRISH REPORTS. [I. R. Exch. Cham. 1873. dune 10, 11. (EXCHEQUER CHAMBER) (1). KENNA v. NUGENT.. Marne rates-Judgment by default in ejeetment-Estoppel-Bmbkrnents 23 6. 24 Viet. c. 154, s. 34. Held-affirming the decision of the Court of Common Pleas: 1. Since the Common Law Procedure Act, 1853, a judgment by default in ejectment is not an estoppel; and, therefore, in an action for mesne rates, is not conclusive as to the time at which the Plaintiff's title accrued: 2. Where the herd of the evicted tenant held as part of his wages and had sown with oats and potatoes three roods of the evicted farm, which contained fifty-eight acres-the evicted tenant was entitled to avail himself of these crops as emblements : 3. If the landlord meant to contend that the claim to emblements was merely colourable, or that the herd held as tenant and not as servant, he ought at the trial to have required those questions to be submitted to the jury. APPEAL by the Plaintiff against the decision of the Court of Common Pleas, reported Ir. Rep. 6 C. L. 547, where the facts and the course of the trial are stated. Byrne, Q. C., Walker, Q. C., and Naish, for. the Plaintiff, in support of the appeal, in addition to the cases cited in the Court below, cited Doe. d. Hull v. Wood (2) ; The Queen at suit of Astley v. Spurrell (3) ; Rex v. Jobling (4) ; Hughes, App., OverÂseers of Chatham, Reap. (5) ; Grantham v. Hawley (6) ; Broom's Legal Maxims, 500 ; Shepherd's Touchstone, 244 ; Clayton -v. Blakey, 2 Smith's L. C., 6th ed., 105 ; Davis Tr. Hardy (7). Dames, Q. C., and Bewley, for the Defendant, in addition to the-cases cited in the Court below, relied upon Comyn's Digest, (1.) Before WHITESIDE, C. J., O'BRIEN and. BARRY, JJ FITZGEÂRALD, DEASY, and DOWSE, BB., (2) 14 M. & W. 682. (3) L. R. 1 Q. B. 72. (4) 1,Rus. & Hy. 525. (5) 5 M. & G. 77. (6) Hubbard, 132. (7) 6 B. & C. 225. Vox.. VII.] COMMON LAW SERIES. 465 " Estoppel," E. 1 to E. 10 ; Cole on, Ejectment, 786 & 262 ; Coke Exch. Cham. on Littleton, 352 a; 14 & 15 Viet. c. 25. Bertie v. Beaumont (1) ; 1873. Nowlan v. Ablett (2) ; White v. Bayley (3); and O'Connor v. Tyn -ENNA dall (4). v. NUGENT. WHITESIDE, C. J. :- We have given some time to the consideration of the arguÂments advanced in this case, and are all of opinion that there was no estoppel. We are all equally of opinion that if there was any case of tenancy, the Judge ought to have been asked at the trial to leave the question to the jury. The judgment of the Court below must be affirmed. Judgment of the Court of Common Pleas affirmed. Attorney for the Plaintiff : J. Goff. Attorney for the Defendant : John Mac Sheehy. CORPORATION OF SLIGO v. OWEN WYNNE, ESQ. (5). Com. Pleas. Borough rate- Unoccupied premises. 1873. A local Act of Parliament gave the Corporation power to levy rates " on April 29. the occupiers of all such kinds of property as by the laws in force for the time being are assessable to any rate for the relief of the poor" :- Held, that the owner of unoccupied and unfurnished premises was not liable. CASS STATED (under the " Civil Bill Amendment Act, 1864, 27 & 28 Viet. c. 99, s. 35), by Deasy, B., at the Sligo Spring Assizes, 1873, on a Civil Bill appeal, taken by the Corporation against the decision of the Chairman, who had. dismissed their Civil Bill brought to recover borough-rate from the Defendant. The question arose as to the liability of the owner of unoccuÂpied and unfurnished. premises within the borough for borough rate, under the " Sligo Borough Improvement Act," 32 & 33 Viet. c. 147 (1) 16 East, 33. (4) 2 Jones, 20. (2) 5 Tyrw. 709. (5) Before KEOGH, Moms, and (3) 10 C. B. (N. S.) 227. LAwsorr,. JJ. 212

Com. Pleas.

KENNA

and

NUGENT.

Doe v. DerryENR 9 C. & P. 494.

M'Keowne v. Bradford 7 Ir. Jur. N. S. 157...