Lessee Delap v Leonard

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

Queen's Bench.

Lessee DELAP

and

LEONARD.

Bushell V. Lechmere 1 Ld. Ray. 369.

Roper and wife V. Lloyd T. Jon. 148.

Hunt V. Cope Cowp. 242.

Botting V. MartinENR 1 Camp. 317.

Mollett V. BrayneENR 2 Camp. 103.

Roe V. Archbishop of YorkENR 6 East, 86.

Doe dem. Spicer V. LeaENR 11 East, 311.

Preston V. Merceau 2 W. Blac. 1249.

Harvey V. Grabham 5 Ad. & EI. 61.

Parteriche V. PowletENR 2 Atk. 383.

Goss V. NugentENR 5 B. & Ad. 58.

Gregon V. HarrisonENR 2 T. R. 425.

Macher V. Foundling Hospital 1 V. & Bea. 191.

Doe dem. Pitt V. LamingENR 4 Camp. 77.

Dumpor's caseENR 4 Coke 119, b.

Keiley V. Ahearne Batty, 19, n.

Twynam V. PickardENR 2 B. & A1. 115.

Hodgkins V. ThornboroughENR Pollex, 143.

Whillock V. HortonENR Cro. Jac. 91.

Richards V. SeelyENR 2 Mod. 79.

Hewlins V. ShippamENR 5 B. & C. 221.

Cocker V. CowperENR 1 C. M. & R. 418.

Winter's caseENR 3 Dyer, 309.

Rawlyns' caseENR 4 Coke 52.

Britman V. Stanford Owens, 41.

Lee V. ArnoldENR 4 Leon. 27.

Thompson V. Home 1 Ir. Law Rep. 179.

Russell V. Thynne 6 Law Rec. N. S. 269.

Denny V. O'Connell L. & T. 929.

Black V. Davis Batt. 99.

Doe dem. Roylance V. LightfootENR 8 M. & W. 553.

Kenman V. Supple Ver. & Scr. 1.

Jackson V. Jackson 2 Law Rec. N. S. 36, and note.

Dawson V. Coghlan Hay. 509.

2 Jebb & S. 704; S. C. Ir. Cir. R. 66.

Keiley V. Ahearne Batty. 18, n.

Lee V. ArnoldENR 4 Leon. 28.

Britman V. Stanford Owen's R. 41.

Winter's caseENR 3 Dyer, 309, a.

Heydon's caseUNK 3 Rep. 7.

Lessee Jackson V. Jackson 2 Law Rec. N. S. 36.

Lessee Keiley V. Ahearne Batty, 19, n.

2 Jebb. & S. 708.

Lessee Denny V. O'Connell Longf. & T. 629.

Lessee Denny V. O'Connell; Lloyd V. LangfordENR 2 Mod. 174.

Lessee Cowan V. Chambers Hayes, 548.

Lessee Walsh V. Feely Jones, 413.

Lessee Black V. Davis Bat. 80.

Lessee Faussett V. Hall Al. & N. 248.

Pluck V. Digges 5 Bli. P. C. N. S. 41.

Lessee Denny V. O'Connell 1 Longf. & T. 629.

BentENR 5 Bing. 185.

Knight V. BennettENR 3 Bing. 361.

Rawlins'caseUNK 4 Rep. 52.

Jackson V. Jackson 2 Law Rec. N. S. 36, and n.

Eyston V. Studel Plowd. 465.

Doe V. ShawcrossENR 3 B. & C. 752.

Jack V. Home 1 Jebb. & S. 424.

CASES AT LAW. 287 assignment in this case, the justification there covered only part of the cause of action-two houses out of five-and therefore left the case unanswered as to three ; but here the justification gees to the whole imprisonment, and therefore, the defendant, in my opinion, ought to succeed. Upon these grounds, I have come to the conclusion that judgment should be entered for the defendant upon this record; but, as my BroÂther Judges are of a different opinion, a venire de novo must be awarded. Venire de novo. T. T. 1842. Queen'sBench. COPPINGER V. BRADLEY. 'Lessee DELAP v. LEONARD. Hilary Terse. Jan. 24. EJECTMENT for non-payment of rent.-This case was tried before A. being posÂPennefather, B., at the last Spring Assizes for the county of Louth. seised of cer tain premises The Jury, upon consent of the parties, found a special verdict to the under a lease for thirty-one following effect :-" That the defendant was possessed of certain premises years still un-" for the residue of a term of thirty-one years, under an indenture of expired, the reversion in fee "lease of the 1st day of November 1817, at the yearly rent of £14. 8s. of which be- "7d., which indenture contained the usual clause of distress and re-entry longed to B., agreed by oral "for the non-payment of the said rent ; and that the lessor of the plain- agreement: to and p "tiff was seized, subject to the said lease, of the reversion in fee of those suffer B. to " premises." They further found, " That the lessor of the plaintiff, being take posses sion of, and " desirous of planting a small portion of the demised premises contiguous occupy, for the purpose of " to his demesne, agreed with the defendant on the 15th of March 1837, pl ant ing, a "by words or oral agreement only, and without any deed, or note, or small portion of the demised " memorandum in writing, or other writing whatever, of or concerning premises, upon the terms of the yearly rent reserved by the lease being reduced to a certain sum agreed upon. This reduced rent was for some time paid by A., but over a year's rent was due ; whether that was to be considered as the rent reserved by the lease, or the abated rent? Held-on an ejectment brought for non-payment of rent, that this oral agreement amounted to a re-demise. (Dubitante, Burton, J.) Held also-That by the operation of this re-demise, the condition of re-entry at comÂmon law was suspended, and that no ejectment could be brought at common law for breach of this condition. Held also-That under the Ejectment Statutes, a right of re-entry at common law was necessary, to entitle a landlord to maintain an ejectment for non-payment of rent.- (Pennefather, C. J., dissentimde). Keilly v. Ahearn (Bat. 18), overruled ; and Jackson v. Jackson (2 Law Rec. N. S. 36); Delacour v. Macartney (2 Law Rec. N. S. n.); and Lessee Denny v. O'Connell (L. & T. 629) commented on and questioned. 288 CASES AT LAW. "such agreement, to permit and suffer the lessor of the plaintiff to take " possession of, and from thenceforth to occupy and use for the purpose "aforesaid, the said small portion of the said demised premises, upon "the terms of the said yearly rent of £14. 8s. 7d. reserved by said " indenture, being reduced by oral agreement for one year, to the sum "of £5. 13s. Id., and for every year after to the sum of £8. 17s. 8d. " That the said reduced yearly rent was for some time paid by the " defendant, but that on the 1st day of May 1840, the sum of £22. 4s. 2d., " being two and one-half years of the reduced rent, and more than one " and one-half years of the rent reserved and made payable by-the lease, "became due to the lessor of the plaintiff and that the same was still due " and unpaid, but whether upon the whole matter the said defendant was " guilty, &c., they prayed the advice of the Court," &c. Mr. Holmes, and Mr. Whiteside, Q. C., for the plaintiff.-The question in this case is, whether the verbal agreement which has been entered into by the landlord with his tenant disentitles him from maintaining an ejectment for non-payment of rent under the statutes. This is not like the case where the landlord becomes under-tenant to his lessee; it is a mere agreement by parol that the rent shall be reduced; it was a perÂmissive occupation, and the agreement was a perfect nullity. Covenant would lie for non-payment of the rent reserved by the lease, and this agreement could not be stated as a special plea in bar, nor would it be a defence to an action of debt. • The defendant means to contend that the condition being entire, cannot be apportioned ; but this agreement could not have the effect of severing the condition. No doubt if the lessor enter and evict his tenant out of any part of the premises, that would suspend the right to enter for the rent, but that must be a wrongÂful entry ; the entry in this case could not be pleaded in bar of an action for the rent ; Bushell v. Lechmere (a); Roper and wife v. Lloyd (5); Hunt v. Cope (c). It was an occupation by the express license of the lessee, and did not amount to an eviction ; and being a mere parol agreeÂment, it cannot operate as a surrender ; Bolting v. Martin (d); Mollett v. Brayne (e); Roe v. Archbishop of York (f). We might proceed for the entire rent, and this agreement would be inadmissible in evidence to show the rent had been reduced; Doe dem. Spicer v. Lea (g); Preston v. Merceau (h); Harvey v. Grabham (i); Parteriche v. Powlet (k); (a) 1 Ld. Ray. 369. (b) T. Jon. 148. (c) Cowp. 242. (d) 1 Camp. 317. (e) 2 Camp. 103. (i) 6 East, 86. (g) 11 East, 311. (h) 2 W. Blac.1249. (s) 5 Ad. & EL 61. (k) 2 Atk. 383. CASES AT LAW. 289 Goss v. Nugent (a): the case of Roe dem. Gregson v. Harrison (b) shows how anxious the Courts are not to suffer a deed to be altered by a written contract. Macher v. Foundling Hospital (c); Doe dem. Pitt v. Laming (d) ; Dumpor's case (e) will be relied on as ruling the present case ; but the doctrine in that case has been very much condemned, and it has been observed, that the very performance of the condition in that case destroyed it ; 4 Bythe. 377. But, supposing this agreement has the effect of doing away with the condition of re-entry at common law, yet, under the Ejectment Statutes, we are entitled to maintain this action. The Ejectment Statutes were framed with the intention of doing away with the difficulties at common law, and one of these was the technicality attending the right of re-entry ; but even if this were not sb, an agreement of this nature could not deprive the landlord of his right of re-entry under the Ejectment Statutes, for the relation of landlord and tenant still subsists ; Keiley v. Ahearne Mr. 0' Hagan, and Mr. Gilmore, Q. C., contra.-An action of covenant is not applicable to the present case, this being an entry for a condition broken ; Twynam v. Pickard (g). It is not necessary that this agreement should be in writing ; we are not bound to show it was an assignment or a surrender ; it is not contended that a lease for a year cannot be created by parol ; Hodgkins v. Thornborough (h); Whitlock v. HorÂton (i) ; Richards v. Seely (k). An estate was taken under this parol deÂmise-amounting at least to a re-demise from year to year-which is good under the Statute of Frauds. This cannot be considered as a mere license, for it is a contract for the enjoyment of land, and capable of passing an interest ; Hewlins v. Shippam (1); Cocker v. Cowper (m). The landÂlord having entered upon the lessee, the condition is suspended during the continuance of this demise from year to year. Wherever any alteraÂtion is made in the reversion, by the act of the parties, there the condition is either suspended or extinguished. A condition cannot be apportioned; Co. Litt...