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1828 : Thomas Pluck and a perpetual Lease in Wicklow

Title: The Irish Law Recorder , xxviii 479-482
Date: 31 July 1828

Court of Error

 

JUDGEMENT

Pluck, in Replevin v Digges

[In giving a summary of this interesting Judgment, we would premise, that we pretend to nothing more, than to notify to our readers, that an important decision has been made upon an important question, in which three of the learned Judges differed from the rest of their brethren. Their Lordships read their opinions at great length, and it cannot be expected of us to give a full report of the Judgment pronounced by each of the learned personages. We, however, give the chief arguments of the two Judges who first delivered their opinion, on different sides of the question; and we thus hope to give our readers some idea of the subject before the Court, and the general principles maintained on each side.]

Whether an avowry for Rent lies, although the Landlord distraining, has no apparent reversion, the lives in his lease to his tenant being the same for which he holds the lands himself.

[Absent, Mr. Justice BURTON.]

TORRENS, (J.) — In this case an action of replevin was brought by the plaintiff, for the taking by the defendant, of cattle, in the county of Wicklow, on the 5th November, 1824. To this declaration the defendant put in several avowries, under the 25th Geo. II. cap. 13. — It was stated that the plaintiff enjoyed the locus in quo, as tenant to the defendant, under a demise, at the yearly rent of 61l. and the defendant avowed the taking of the goods, as for a distress. There were other avowries, but it is unnecessary to state them, as they do not affect the present question.

To these avowries the plaintiff pleaded, 1st, Not Guilty; 2nd, Riens in arrere; and 3rd, non tenuit; but the question for the decision of the Court only arises on the first plea.

The following are the facts:—
The premises in question are the estate in fee of the Whaley family, who made a lease to Edmond Burroughs, Esq. to whose family the estate devolved for lives renewable for ever. By indenture of the 19th of February, 1821, made to Thomas Pluck, the lands were conveyed, to said Thomas, for the lives of his late Majesty, Isabella Hamilton, and Anne Burroughs, with a covenant for perpetual renewal, and a clause of distress, and a covenant to insert a new life, on payment of 4l. 5s. sterling; so that Thomas Pluck and his heirs, &c should have a perpetual lease of the premises — and there was an express provision, that the lives should be the same as were mentioned in the original lease to Edmond Burroughs — and it was admitted, that the interest of Thomas Pluck, became vested in Patrick Pluck, the plaintiff by assignment. This was the evidence for the defendant. For the plaintiff it was proved, that Anne Richardson, Whaley’s representative, entered, and by lease of the 21st November, 1820, reciting the death of two of the cest te qui vies, the lives of Harriett Hamilton and Maria Hughes were added, as cest te que vies to the life of Anne Burroughs, and they were proved to be the same persons who had been recited in the Plucks’ lease; and it was contended, that the persons making the avowry had no reversion, and that they were, therefore, not entitled to recover, and that the Judge should have directed a verdict for the present plaintiff. The Judge, without giving any opinion on the point, directed, pro forma, a verdict to be given for the present defendant, and exceptions were then taken.

These exceptions came on to be argued in the Court of Common Pleas, and three of the Judges were of opinion to over-rule the exceptions, and one dissented from that opinion. The disputed question arises on the construction .of the 4th section of the 25th Geo. II. cap. 13. That section, after reciting the difficulties arising, as the law then stood, in making avowries on distresses, then makes it lawful for all defendants to avow generally, without setting forth the grant, tenure, demise, or title of such landlord, lessor, or owner of the lands. Now, in the first place, it is to be observed, that though the provisions of this statute particularly refer to the relation between landlord and tenant, it is manifest that it was the intention of the legislature to extend the benefit of the statute to other persons, than those standing in the mere abstract relation of landlord or lessor; the previous provisions giving remedy by ejectment, on an article not containing a demise, proves this, which provision embraces not only landlord and tenant, but all owners and occupiers of land; and it would therefore appear to me, that the true construction of the statute is, to do away with the avowry at common law, and give the right to the general avowry. The statute recited, that the act was for the benefit of owners of land, and while it purposes to relieve them, it could scarcely be held that was its intention to involve them in the abstract doctrine of feudal tenure. I conceive, therefore, that tenure and tenant, in the general sense used by the legislature, is more comprehensive in its meaning than is contended for by the plaintiff in error. I do not mean to say that every species of distraining can be generally avowed for under this section. A rent-charger, for instance, cannot avow; a rent-charger is a mere annuitant, he has his own proper and particular remedy. The position laid down as to the doctrine, arising from the nature of the title of a rent-charger will be found in Wilson, 429, 1st Bos. and Pad 56, “he is a mere rent-charger, having no reversion.”

. . .

The LORD CHIEF JUSTICE said he should be glad to discharge his duty, by simply referring to the arguments of the Judges with whom he was about to agree — but that he did not concur in the whole of their opinions. On the main point, however, his Lordship concurred, and concluded with observing, that he was glad to find that his view of the case was confirmed by a modern authority, which he had not known of till it was mentioned by Judge Torrens in his very able judgment. He alluded to the case in 4th Bingham, and he finally declared that the judgment of the Court of Common Pleat be affirmed, but as there was a difference in the opinion of the Court, with the least possible costs.

 

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