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1831 : Patrick Pluck's Case gets to the House of Lords

 

Source:  Printed
Title:  Reports of Cases heard in the House of Lords on Appeals and Writs of Error, and decided during the Session 1830. By P. Dow and C. Clark, Barristers-at-Law. Vol. II., 1831, London, 180-187
Date:  1831
Place:  House of Lords

ERROR

FROM THE IRISH EXCHEQUER CHAMBER

PLUCK, — Plaintiff in error; DIGGES and Another, — Defendants in error.

A., entitled to a lease for lives renewable for ever, assigns the whole of his estate and interest in the lands to B., reserving a rent, and a power of distress and re-entry, but no reversion. The rent being in arrear, A. distrains, and B. replevies; A. avows under the Irish statute 25 Geo. 2, c. 13, corresponding to the English statute, 11 Geo. 2, c. 19, giving landlords the remedy by distress, and judgment in the Irish Common Pleas and Exchequer Chamber for A. But, on error by B. in Dom. Proc. the judgment reversed, for the statutes apply only to those leases where there is a reversion, or an interest vested in the lessor at the expiration of the lease; and here there is no reversion.

Richard Chapel Whaley, being, in 1756, seised in fee of the lands of Balinadoyle, in the county of Wicklow, demised the same at a yearly rent of £8 by indentures of lease and release, to Edmund Burroughs, his heirs and assigns, to hold the same for three lives, with covenant for perpetual renewal. In 1820, the interest of Burroughs was vested in William Hughes and Maria, his wife, and in her sisters Isabella, Ann, and Harriet Hamilton, who then renewed the lives with Ann Richardson, in whom the interest of Whaley was vested.

Hughes and his wife, and her three sisters, by indentures of lease and release, dated the 18th and 19th of February 1821, assigned the whole of their estate and interest in the lands to Thomas Pluck, at the yearly rent of £61 8s. 6d. The last-mentioned indenture purported in form to be a demise, and contained a covenant authorizing the releasors, their heirs and assigns, to enter and distrain on the lands in case of nonpayment of the rent within twenty-one days after the same should become due, and also for re-entry in case of further nonpayment, with covenant for perpetual renewal. Hughes and his wife, on the 4th September 1822, assigned their interest or share to the three sisters, Isabella, Ann, and Harriet Hamilton. In April 1824, the Defendant in error, Montgomery Digges intermarried with Isabella Hamilton, at which time the interest of Thomas Pluck was vested in the Plaintiff in error, Patrick Pluck, who was then in possession of the lands.

On the 25th November 1824, Digges and his bailiff, White, the other Defendant in error, entered on the lands, and distrained the cattle of the Plaintiff in error, then pasturing on the lands, as a distress for rent alleged to be due. The Plaintiff in error replevied, and in Hilary Term 1825 filed his declaration in the Court of Common Pleas against the Defendants in error for the distress.

To this declaration avowries and cognizances to the following effect were put in by the said Defendants as landlords of the said premises, under the statute of the 25 Geo. 2, c. 13, (corresponding English statute, 11 Geo. 2, c. 19).

First, the Defendant Montgomery Digges, in right of his wife Isabella avowed, and as bailiff of Ann and Harriet Hamilton, and the said Defendant Thomas White, as bailiff of said Montgomery Digges and Isabella his wife, Ann and Harriet Hamilton, acknowledged the taking as just, because they allege that Plaintiff, at the time of said taking, held and enjoyed said lands for one year and a half before elapsed, and ending on the 29th September 1824, as tenant thereof to the said Montgomery Digges and Isabella Digges, otherwise Hamilton, his wife, and Ann and Harriet Hamilton, by virtue of a demise thereof to him the said Patrick Pluck theretofore made, at and under a certain yearly rent therein mentioned; and because the sum of £92 2s. 9d. of the said rent, for the space of one year and a half as aforesaid, on the 29th day of September 1824, was then in arrear from the said Plaintiff to the said Montgomery Digges and Isabella Digges, Ann, and Harriet Hamilton, the said Defendants, respectively, in right of said Isabella, Ann, and Harriet Hamilton, avowed and acknowledged the taking of the said cattle as for and in the name of distress for said rent so due and in arrear.

The second avowry and cognizance only varied from the first, by stating the tenancy to be by Thomas Pluck instead of Patrick Pluck.

The third avowry and cognizance varied from the first and second by claiming but one year’s rent in arrear of said premises, up to and for the 25th March 1824, and as being due to the said Ann Hamilton, Harriet Hamilton, and Isabella Digges, otherwise Hamilton, before her marriage with said Montgomery Digges, under a demise from them to said Patrick Pluck,and claimed in their right accordingly.

The fourth avowry and cognizance varied from the third only by stating the same tenancy to be by Thomas Pluck instead of Patrick Pluck.

The fifth avowry and cognizance varied from the former, by claiming one half year’s rent of said premises only, ending the 29th September 1824, under the same demise and tenancy as in said first avowry and cognizance, and the tenancy is laid in said Patrick Pluck.

The sixth avowry and cognizance is similar to the fifth, except that it lays the demise in Thomas Pluck.

To these several avowries and cognizances the Plaintiff pleaded in bar, first and second, that the said Defendants were not bailiffs, as they alleged.

Thirdly, riens in arrear, as to the said rents so claimed to be due to the said Montgomery Digges and Isabella his wife, and Ann and Harriet Hamilton.

Fourthly, that Plaintiff did not hold the premises under any of the alleged demises.

Fifthly, that Thomas Pluck did not hold the said premises under any of the said alleged demises.

Issues having been joined on these pleas, the cause was tried at the summer assizes for the county of Wicklow, when the above-mentioned indentures were produced and given in evidence. The Plaintiff’s counsel insisted that upon that evidence the Judge ought to direct the jury to find for the Plaintiff. The learned Judge on the contrary gave it as his opinion that the evidence was not sufficient to entitle the Plaintiff to a verdict, or to bar the Defendants from maintaining their avowries and cognizances, and directed the jury accordingly; and a verdict was found for the Defendants, and the rent in arrear as reserved by the indentures of the 18th and 19th February 1821 was assessed at £87. To this opinion and direction a bill of exceptions was tendered and sealed, and came on for argument in the Court of Common Pleas in Easter Term 1826, when the exceptions were overruled by a majority of the Judges; and on error brought in the Exchequer Chamber the judgment was affirmed by a majority of that court, and thereupon the Plaintiff brought his writ of error in the House of Lords, and it was submitted on his behalf that the judgment ought to be reversed for the following reasons:

First, Because the indenture of the 19th of February 1821, although in terms it purports to be a lease of the lands therein mentioned, yet, as it transferred the whole estate and term of the grantors in the premises, operated in law as an assignment of their estate therein, and not as an under-lease to the grantee; and consequently, at the time of making the distress in question, and while the said rent was accruing, the said lands were not held by the plaintiff or Thomas Pluck, as tenant under any of the several demises in the pleadings alleged:

Secondly, Because, since the statute of Quia Emptores a reversion in the lessor immediately expectant on the demised term is necessary, to constitute the relation of landlord and tenant between the parties:

Thirdly, Because though an interest had been shown to have passed under the said deed, no estoppel or conclusion was thereby created to preclude the Plaintiff from denying that he held as tenant under it, nor from showing by extrinsic evidence, that the term thereby conveyed, comprehended and passed the whole estate, term, and interest which the grantors then had in the lands:

Fourthly, Because the rent avowed for under the statute in this case, and payable under the said deed, was a rent-charge and not a rent-service, to which latter species of rent alone the Irish statute of 25 Geo. 2, c. 13, relieving landlords or lessors from the necessity of setting out their title, applies, and is confined:

Fifthly, Because the Defendants, and those in whose right they claimed the said rent, not having any reversionary estate in the premises at the time of making the distress in question, were not entitled to avow generally, but were bound to have shown and specially pleaded their title thereto:

Sixthly, Because a party cannot stand at the same time in the situation of assignee of a lessee’s estate and interest, and liable, as such, to the head landlord, under the covenants and contract under such head-lease; and also, as under-lessee to his immediate grantor, and liable under his contract with him as such:

Seventhly, Because, even supposing that the Plaintiff is to be considered as estopped from denying that Thomas Pluck and his assigns held the lands as tenants under the alleged demise of the 19th February 1821, yet he is at liberty to insist and show that he did not hold same at the time of making the distress in question, as tenant under any of the demises in the pleadings alleged, inasmuch as that indenture purports to be a demise by William Hughes and Maria his wife, Isabella, Harriet, and Ann Hamilton, to Thomas Pluck and his assigns: whereas the tenancy alleged in the pleadings was under a different contract and tenure, although the deed of the 4th September 1822, was inoperative to pass any estate or interest in the reversion of the said lands from the said William Hughes and Maria his wife, they not having any estate or interest in such reversion to transfer by the said deed.

When the cause came on for hearing in the House of Lords, no case was made, nor did any counsel appear for the Defendants in error; and Sir E. Sugden, counsel for the plaintiff, stated that notice had been given on the part of the Defendant in error, that no attempt would be made to support the judgment. He then briefly stated the case, and referred to the statutes by which it was governed, and cited the case of Woolpitt v. Clark, 1 Bos. and Pul. N. R. as the leading authority on the subject.

Lord Tenterden: As the Defendant in error has given notice that he does not mean to defend the case, it is unnecessary for us to hear the case for the Plaintiff in error, any further than to satisfy us that there is good ground for reversing the judgment. Speaking with the greatest deference for the Judges below, I am clearly of opinion that this judgment ought to be reversed.

The case is of this description: the Defendants in error entitled to an estate for a term for lives, with covenant for perpetual renewal by deed of 1821, assigned their whole interest in the lands to a person represented by the Plaintiff in error, reserving a rent, and a power of distraining for the rent. The rent being in arrear, those who were entitled to it took a distress, which the Plaintiff in error replevied, and filed his declaration against the Defendants in error. Avowries and cognizances were put in by the Defendants under the Irish statute 25 Geo. 2, c. 13, as landlords of the premises, and all of these proceeded on the ground that the Plaintiff in error held as tenant.

By the common law both in England and Ireland, a person entering upon land and taking a distress was bound to show and set out his title to the land. The English statute 11 Geo. 2, c. 19, and the corresponding Irish statute 25 Geo. 2, c. 13, relieved landlords from this necessity, and enabled them to get payment of their rents by a shorter process. The Irish Act is the same as the English Act, but with this addition, that whereas by the English Act you cannot avow unless there is an actual demise, under the Irish Act the distress may be taken in this short mode, not only on a perfect demise, but also upon an imperfect one, such as a contract for a demise.

But by neither of the acts is it permitted to avow for a rent-charge upon the land payable to one who has no reversion. Now this cannot be considered as rent-service, or as rent reserved between landlord and tenant, as there can be no such rent without a reversion, or an interest vesting in the lessor at the expiration of the lease. Under this deed of 1821 there is no reversion, as the whole interest is assigned.

The power of entry and distress is reserved, but there is nothing to constitute a reversion. There is consequently no rent of the description to which the provisions of the statute apply, and the only advice I can give your Lordships is, that the judgment be reversed.

Lord Wynford: I agree in that opinion; but I cannot help observing that this is one of that description of cases which ought to induce us to consider whether some alteration might not be made in law procedure, so as to prevent parties having rights from being deprived of their remedies through the blunders in point of form of attornies and counsel. It is a dreadful thing to be obliged for a defect in form to give judgment contrary to the real merits of the case. There is no doubt but that the Defendants in error in this case had a right to distrain, and that they lost the advantage of it solely by the erroneous mode of putting their case on the record.

Judgment reversed.

 

 

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