Lessee of Thompson v Home

• Jurisdiction: Ireland
• Judgment Date: 30 January 1839
• Date: 30 January 1839
• Court: Queen's Bench Division (Ireland)

QUEEN'S BENCH.

Lessee of THOMPSON

and

HOME.

Winter's caseENR 3 Dyer 309 a.

Twynam v. PickardENR 2 B. & A. 112.

Mason v. CurderENR 7 Taun. 9.

AnonymousENR 1 Dyer 6 b.

Browning v. BestonENR 1 Plow, 123, 137.

Russell v. Thynne 6 Law Rec. N. S. 275

Lessee of Black v. Davis Batty 99.

Bayly v. MurinENR 1 Vent. 246.

Goodale v. Wyatt Goulsb. 178.

Hayward v. FulcherENR Palm. 503.

Taylor v. Horde 1 Bur. 125.

Blennerhassett v. Day 2 Ball. & B. 104.

Ellison v. Murphy 4 L. R. 161.

Keilly v. Ahearne Batty 18, note.

Doe d. Lawrence v. ShawcrossENR 3 B. & C. 752.

Allen v. Smith 1 Jones 279.

Purcell v. Kirby Not reported; decided in M. T. 1835.

Winter's caseENR 3 Dyer 309 a.

Thompson v. LeachENR 2 Vent. 198.

Thompson v. LeachENR 3 Mod. 296.

Kesterton v. Sabery 2 Chy. R. 511.

Rawlyn's caseUNK 4 Rep. 52a. & b.

Hodgson v. ThornbourghENR 2 Lev. 143.

Dormer's caseUNK 5 Rep. 40 a.

Kielly v. Ahearne Batty 40 note.

Doe d. Lawrence v. ShawcrossENR 3 B. & C. 752.

Pluck v. Diggs 2 H. & B. 1.

Walsh v. Feely 1 Jones 416.

Batty Batty R. ap.

Basset v. BassetENR 3 Atk. 204.

Doe d. Bywater v. BradlingENR 7 B. & C. 643.

Mills v. WilkinsENR 6 Mod. 62.

inter partes Tempest v. RawlingENR 13 East. 18.

Laythoarp v. Bryant 2 Bing N. S. 735.

Cooper v. BlandyUNK 4 Moo. & Sc. 562.

Wilston v. Pilkney Vent. 242.

Cartwright v. PilkneyENR 1 Vent. 272.

Thursby v. Plant 1 Saun. 236 a. note.

Thompson v. LeachENRENR 2 Vent. 198, S. C.; 2 Salk 613.

Townsend v. TickellENR 3 B. & Al. 31.

Crewe v. Dicken 4 Ves. 97.

Nicholson v. Wordsworth 2 Swan. 368.

Winter's case Dyer 369.

PointUNK 5 Rep. 56.

Kesteron v. Sabery 2 Chy. 541.

Hodskins v. ThornburyENR 3 Keb. 518.

Anonymous Goulsb. 21.

Culco v. SharpeENR Noy. 126, ph 541.

Lee v. ArnoldENR 4 Leon. 28.

EJECTMENT FOR NON-PAYMENT OF RENT RIGHT OF RE-ENTRY SURRENDER OF PART OF THE PREMISES.

HILARY TERM, SECOND VICTORIA. 179 was made absolute on argument. E. Armstrong has been returned as heir, but has pleaded " that he is not heir ;" to this plea the plaintiff must demur, Carroll v. Cooke (a).-ECuampToN, J.-Have you served notice ?]-.No ; I seek only a conditional order, and it would be done in England without notice in the office. A rule nisi was granted and afterwards made absolute on a cerÂÂtificate of no cause. (a) I Jebb, & S. 33. November 6th and 9th, 1838, and January 25th and 30th, 1839. EJECTMENT FOR NON-PAYMENT OF RENT-RIGHT OF RE-ENTRY-SURRENDER OF PART OF THE PREMISES. Lessee of THOMPSON v. HOME. EJECTMENT for non-payment of rent. At the trial at the Sittings after last Trinity Term, before CRAMPTON, J., there was produced in evidence, on behalf of the plaintiff, a certain indenture of demise, made and executed by and between George Thompson, the lessor of the plaintiff, of the one part, and George Home, the defendant, of the other, whereby the said G. Thompson, in consideration of 1200, and the yearly rent and covenants therein set forth, demised to the said G. Home the house No. 34, College-green, and premises, as described in the deÂÂclaration, from the 1st of June, 1827, for 30 years, at the yearly rent of 500, to be paid and payable by fifty-two weekly payments of 9. 12s. 4d., the first weekly payment to begin and to be made on the first Friday in June, 1828, and if at any time unpaid for three days, it should be lawful for the said G. Thompson, his executors, &c., to disÂÂtrain ; and if no sufficient distress, then, that it should be lawful for the said G. Thompson, his executors, &c., into said demised premises, plaintiff, pursuant to notice, and which expressed to be by and between G. H. of the one part, and G T. of the other. Ii was dated the 27th July, 1529, and two drawing-rooms, part of the demised premises, were thereby surrendered to G. T. It was executed by G. H alone, and contained the following proviso--" Provided always, nevertheless, and it is hereby declared and agreed by and between the said parties to these presents, to be the true intent and meaning thereof, and the same are upon this express condition, that noÂÂthing herein contained shall in any manner prejudice or affect the covenant for payment of the said yearly rent of X500, or any other covenant in said lease contained, on the part of the tenant, his executors, &c., to he done, &e.; or any of the clauses, conditions or agreements therein contained, or any of the remedies, for the recovery- of the said. or tho. enforcing of the said covenants, conditions, &c. on the part of the said G. T., but ;llt the entire of the said yearly rent shall still be and continue payable out of -ame ; and tile said covenants. &c shall he and continue in full force, &c. as to all the re,idue of said de. mised premises, and not hereby surrendered ; and that said G. T. shall have all the like remedies for-the recovery of said rent, and enforcing said covenants, &c. as if these preÂÂsents had not been made, anything. &c." Signed G. H, ; Held-that this deed of surÂÂrender did not operate to destroy the right of re-entry, but that it alone, or taken in con • nexion with the original lease, constituted an article, minute or contract within the 25 Geo, 2, c. 180 CASES IN THE QUEEN'S BENCH. or any part thereof, to re •enter, and the same to re-possess and enjoy, as of his or their former estate. The other usual evidence having been then given on the part of the plaintiff, the defendant's counsel proved payÂÂment of rent by the defendant up to March, 1837, and then called upon the attorney of said G. Thompson, pursuant to notice, to produce a cerÂÂtain deed which they then gave in evidence, and which was dated the 27th of July, 1829, and expressed to be between G. Home of the one part, and G. Thompson of the other part, but was executed by G. Home alone. This deed, after reciting the deed of the 30th of June, 1837, recited an agreement between said parties, that said G. Home should surrender the two drawing. rooms, &c., part of said premises so demised as aforeÂÂsaid, by said deed of the 30th of June, 1827, in consideration of 525, to be paid in hand ; and then stated, that in consideration of said sum, said G. Home did surrender said part of said premises to said G. ThompÂÂson. There was then a covenant, on the part of G. Home, that he had full power to make this surrender ; and then came the following proÂÂviso :-" Provided always, nevertheless, and it is hereby declared and "agreed, by and between the parties to these presents, to be the true inÂÂ" tent and meaning thereof, and the same are upon this express condi tion, that nothing herein contained shall in any manner prejudice or " affect the covenant for payment of the said yearly rent of 500, or any "other covenant or covenants in said recited indenture of lease conÂÂ" tained, on the part of the tenant or lessee, his executors, &c., to be " done, performed, or fulfilled, or any of the clauses, conditions, or " agreements therein contained, or any of the remedies for the recovery " of the said rent, or the enforcing of the said covenants, clauses, condi tions, and agreements, or any of them, on the part of the said G. "Thompson, his heirs, &c., but that the entire of the said yearly rent " shall still be, remain, and continue payable and issuing out of same ; " and the said covenants, clauses, conditions, and agreements, and every " of them, shall be, remain and continue in full force and effect, with resÂÂ" pect to all the rest and residue of said premises, by the said indenture "demised to the said G. Home, and not hereby assigned or surrendered ; " and that the said G. Thompson, his heirs, &c., shall have all and every "the like remedies for the recovery of the said rent, and enforcing the " said covenants, conditions, clauses and agreements, and each and every " of them, as if these presents had not been made, any thing herein "contained to the contrary notwithstanding. In witness whereof, the " parties aforesaid," &c. This deed was signed " GeorgeHome," and attestÂÂ" ed by two witnesses. The defendant's counsel having read this deed, closed their case, and called upon the learned Judge to direct the Jury, if they believed the evidence, to find a verdict for the defendant ; but the learned Judge, on the contrary, directed the jury, if they believed the evidence, to find for the plaintiff, which they accordingly did. The deÂÂendant's counsel took an exception to the charge of the learned Judge, HILARY TERM, SECOND VICTORIA. 181 and the point of the exception was, that by the operation of the deed of surÂÂrender of part of the demised premises, the condition of re-entry in the original lease was gone, and that the jury should find for the defendÂÂant.* Mr. Napier, with whom was Mr. Smith, Q. C., and Mr. Fitzgibbon, in support of the exception.-There are two propositions which the defendant must establish; first, that the lessor had no right to re-enter at common law, and secondly, that when the right of re-entry at comÂÂmon law is nullified, ejectment under the statutes is not maintainable ; as the statutes only facilitate the mode of recovering in ejectment, but do not extend to any new case not within the common law. There was no right of re-entry at common law when the ejectment was brought ; that right always depended upon the contract of the parties ; upon con 1839. THOMPSON V. HOME. * The following clauses in the ejectment statutes were referred to in the argument : The 11 Anne, c. 2, s. 2, which enacted, that when more than one half-year's rent is due, and no sufÂÂficient distress on the premises, a summons in ejectment shall stand instead of re-entry, in all cases...