Lennon v Meegan

• Jurisdiction: Ireland
• Judgment Date: 18 June 1903
• Date: 18 June 1903
• Court: King's Bench Division (Ireland)

Lennon

and

Meegan (2)

K. B. Div.

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.

1905.

Civil — bill ejectment on title — Dismiss on the merits — Estoppel — 14 &15 Vict. c. 57, ss. 111, 133 — 37 & 38 Vict. c. 66 — 40 & 41 Vict. c. 56, s. 54.

The plaintiff had brought a civil-bill ejectment on the title, which had been dismissed, the dismiss purporting on its face to be “on the merits”:—

Held, that such dismiss did not estop the plaintiff from bringing a subsequent civil-bill ejectment on the title for the recovery of the same lands against the same defendants, although there had been no change of title in the meantime.

O'Donnell v. Ryan (7 Ir. Jur., O. S. 127) and Flaherty v. M'Donagh (2 New Ir. Jur. R. 170) commented on.

Case Stated upon the trial of a civil-bill appeal by Holmes, L.J.

The material portions of the case were as follows:—

“1. This was a civil-bill appeal heard by me as a Lord Justice of Assize in county Louth on the 3rd March, 1903.

“2. The civil-bill process had been brought to recover possession of part of the lands of Mullacrew, containing 4a. 3r. 4p. statute measure, or thereabouts, with the house and other buildings thereon in the parish and county of Louth.

“3. The County Court Judge gave a decree for possession, from which the defendants appealed.

“4. The lands were held in fee-simple, and the root of the plaintiff's title was marriage articles, dated 7th January, 1860.

“5. The plaintiff claimed that there was in the events that have happened a resulting use to the settlor in those articles, and that he, as the heir-at-law of such settlor, was now entitled to possession.

“6. I am satisfied that prior to the year 1896 the plaintiff became entitled to the premises sought to be recovered, and has since continued to be so entitled; and this case is stated on the assumption that the plaintiff was entitled to have the decree for possession affirmed unless the dismiss of a former ejectment process is an answer to the plaintiff's action. The process referred to was dated the 9th January, 1896; and it is admitted that although there is a little variance in the description, the lands sought to be recovered therein are the same as those now sued for. It is also admitted that the same questions were then in controversy between the plaintiff and the principal defendant, who claimed by an adverse title, and that no change of circumstances has occurred since. The former process was dismissed on the merits on the 28th January, 1896, by the same County Court Judge who gave the decree now appealed from.

“7. Mr. O'Shaughnessy, on behalf of the defendants, relied on this dismiss, and referred to a recent decision of Mr. Justice Andrews, and to section 133 of 14 & 15 Vict. c. 57.

“8. Mr. Thompson, for the plaintiff, sought to distinguish between a decree for possession in a civil-bill ejectment and a dismiss, pointing out that the decree declares the plaintiff is entitled to the possession of the premises, and the dismiss merely declares that the plaintiff failed to prove his case. It is to be observed, however, that this is the formula used in all civil-bill dismisses (see schedule (C) of the Act of 1851, form 27), and it could hardly be argued that if a defendant was sued as acceptor of a bill of exchange, a dismiss on the merits would not be final.

“9. Mr. Thompson, at a later stage of the circuit, called my attention to The Irish Land Commission v. Ryan (1); but while it was held in that case that although a dismiss on the merits of a civil bill for arrears of tithe rentcharge in the year 1896 did not estop the plaintiff from suing for arrears alleged to have become

due subsequently to 1896, it was assumed that the dismiss was conclusive as to its own subject-matter, i.e. the arrears sought to be recovered in the first civil-bill; to hold otherwise would have destroyed the distinction between a dismiss on the merits and a dismiss without prejudice.

“10. Mr. Thompson also submitted that a dismiss on the merits is not an appropriate judgment in an ejectment, and I do not remember having seen one before; but section 111 of the Act of 1851 seems prima facie to apply to all civil bills. Section 1 of 37 & 38 Vict. c. 66, and section 54 of 40 & 41 Vict. c. 56, although not quoted in argument, seem to me to have some bearing on the question as implying that, although the decision of the County Court Judge shall not be evidence of title in an action relating to other lands, it is evidence in an action relating to the same lands.

“11. Both parties were desirous that I should state a case, and having made many inquiries as to whether there has been an authoritative decision on the point, and having failed to find one, I consented to do so.”

The question reserved was whether the dismiss of the 28th January, 1896, was a conclusive answer to the subsequent civil bill.

The dismiss of the 28th January, 1896, was in the following terms:—“It appearing to the Court that the plaintiff caused the defendants to be served with a civil-bill process to appear here at the present sittings for recovery of part of the lands of Mullacrew, containing 3¹/₂ acres Irish plantation measure, or thereabouts, in the parish of Louth, and barony of Louth, and that the plaintiff failed to prove said case, it is, therefore, decreed by the Court that the plaintiff's bill be, and the same is, hereby dismissed on the merits, and that the defendants do recover against the plaintiff the sum of £1 10s. 6d. costs and expenses of this dismiss, and the several sheriffs,” &c.

Donaldson, for the defendant:—

A civil-bill decree in ejectment is conclusive between the parties where no question arises as to the identity of the premises, or the jurisdiction of the Court, and no new title has accrued to the plaintiff: Condon v. Kingston (1); Betty v. Nail (2); Coneys v. Coneys (3); Doyle v. Keenan (4); Flaherty v. M'Donagh (5). There is no distinction in principle in this respect between a decree and a dismiss on the merits. By section 133 of 14 & 15 Vict. c. 57, decrees and dismisses, where no appeal has been taken, are alike made absolutely final to all intents and purposes. See also Flitters v. Allfrey (6). In The Irish Land Commission v. Ryan (7), the two civil bills were brought in respect of different subject-matters; the arrears of tithe rentcharge sought to be recovered in the second civil bill had accrued subsequently to the former dismiss; that case, therefore, has no application here. The reason why a judgment in ejectment was not an estoppel was that under the old practice the parties named upon the record were merely fictitious, and, therefore, there was a difficulty in showing that the parties in the second ejectment were the same as in the first. Accordingly, when the Process and Practice Act, 1850, was passed, and the action of ejectment made a proceeding between the real parties to the suit, it was held that a judgment in ejectment had the same conclusive effect as a judgment in any other action: O'Donnell v. Ryan (8). That was the state of the law at the time of the passing of 14 & 15 Vict. c. 57. The law as so laid down was subsequently altered, with respect to judgments in ejectment in the Superior Courts, by the Common Law Procedure Act, 1856, sect. 94, which restored the old rule as to the non-conclusiveness of judgments in ejectment; but this provision did not apply, and has never been extended, to civil-bill ejectments. As to such ejectments, therefore, the principle of O'Donnell v. Ryan (8) still applies, viz. that being between the real parties a decree or dismiss is as conclusive as in any other case. Effect must be given to the words in the present dismiss “on the merits.” Section 111 of 14 & 15 Vict. c. 57, gives power to the County Court Judge to dismiss either without prejudice, or on the merits. By section 3 of 37 & 38 Vict. c. 66, that Act is to be construed as one with 14 & 15 Vict. c. 57; therefore, the provisions of sect. 111 of the

last-mentioned Act apply to ejectments brought under 37 & 38 Vict. c. 66, as extended by 40 & 41 Vict. c. 56, sect. 54.

John Gr. Thompson, for the plaintiff:—

Condon v. Kingston (1) was an ejectment for non-payment of rent under the 73rd section (since repealed) of 14 & 15 Vict. c. 57, which contained stringent provisions barring the tenant, after possession had been taken under a decree, from all relief at law or in equity, unless some of the steps mentioned in the section were taken. The decision in Doyle v. Keenan (2) appears to have been arrived at by applying the analogy of an action for mesne profits brought after a prior ejectment. In such action, no doubt, the prior ejectment, if properly pleaded, was conclusive, but this was always considered as an exception to the general rule. Flaherty v. M'Donagh (3) is merely a circuit decision; it was decided on the words of sect. 133 of the 14 & 15 Vict. c. 57. It is submitted, however, that the object of that section was merely to take away certiorari, and it was certainly not intended to give civil-bill decrees and dismisses greater efficacy than judgments of the Superior Courts. The decision in O'Donnell v. Ryan (4) was founded on the erroneous assumption that the reason of the old rule that a judgment in ejectment was not an estoppel was that the parties were not real, but fictitious. The true reason, however, for the rule was that all that was recovered by a judgment in ejectment was the possession of the lands, there was no direct adjudication on the title: Cole on Ejectment, pp. 76, 77; Adams on Ejectment, pp. 286,308; Ashlin v. Parker (5); Doe d. Strode v. Seaton (6), per Lord Abinger, C.B. In Coneys v. Coneys (7), the decision in O'Donnell v. Ryan (4) was doubted. It is to be observed, moreover, that the judgment relied on as an estoppel was given on a special verdict in which the title was fully...