« EelmineJätka »
the reason was not sufficient to satisfy us that the effected till the last moment, and on the supposition order should not be made absolute without any that it is effected then, the intermediate disturbance stay of execution. That the tenants had cropped the and injury would have been clearly unnecessary
. lands would have been in our opinion) a good All parties would have been put to inconvenience, cause why execution should have been stayed, to even the landlord, without advantage to any. enable them to reap the profits of their industry; Other sections of this Act contain important but that they might have done so, seems hardly amendments in the law as to ejectment for nonsufficient. It appears further, that they had been payment of rent. It is reasonable that the tenant served with the conditional order, and it might should have accurate information as to the amount fairly be inferred, that if they had cause to shew, of rent claimed, as well as the amount claimed for they would not have neglected doing so—that they costs, in order to his providing for their payment
. might have cropped their lands, was a good reason The provisions also for staying proceedings, at for insisting on the service of the conditional order, almost every step in the suit, on payment of the but no reason for refusing to render it absolute un- amount due and costs incurred up to that period
, conditionally, on proof of service, if no cause were are of some importance to the holders of land. shewn.
But, to return there are two distinct classes of cases to which the provisions of this 8th section DURING the past week, a decision was made by the apply; namely, cases where tenants under eject- Court of Exchequer, in the case of Brady ment for non-payment of rent are permitted to Rotheram, (not yet reported,) as to the effect of a remain in occupation for the time during which the lodgment of money, in discharge of the action
, law gives them the right of redemption ; and cases after writ and before declaration. This was the where a landlord choses to permit a tenant, first occasion such a question has been mooted, and ejected on the title, to remain in possession. These the decision of the Court is one which, we appre. two classes differ completely in the circumstances hend, will have a very considerable influence on the connected with them, and we are prepared for a practice of lodging money in discharge of the difference in the rules made by the court
, according action, and of changing the venue on the common as a case brought under their notice belongs to one affidavit. class or to the other. In cases of ejectment for The action was trover, and after the service of non-payment of rent, the tenant must be supposed the writ, and before the declaration was filed, the to know whether he is about to redeem or not, and defendant lodged a sum of money in court, and will regulate the management of his farm accord- moved on the common affidavit to change the ingly. In these cases, we are prepared to find the venue. This application was answered by an courts—as the six months allowed for redemption undertaking to give material evidence in the county are about expiring-renewing haberes, and putting where the venue was laid, (the county of the city of landlords into immediate possession without hesi. Dublin.) At the trial before the Lord Chief Baron, tation. In cases of ejectment on the title—as the the only material evidence was the defendant's rule tenant cannot know what the landlord's intention on lodging the money. The Chief Baron having may be—we are, on the contrary, prepared to find refused to non-suit, the plaintiff had a verdict, and the courts making diligent inquiry, as to whether the question came before the Court on a motion to the tenant has been induced, by the indulgence of change that verdict into a non-suit. the landlord, to crop his land, and, in that case, For the defendant, it was contended, that as the preventing a landlord from taking advantage of lodgment was before declaration, it could not be the exertions which a tenant might be induced to taken as an admission of a cause of action not dismake in consequence of such indulgence.
closed ; that it would inflict much hardship on a We consider the provisions of the 8th section defendant, who, on being served with a writ in: so salutary in their application to the cases of dorsed with the amount of debt and costs, as is ejectment for non-payment of rent, that we should required in actions ex contractu, and being willing be glad that they were not only optional, but com- to admit a debt of that character, was then to be pulsory. We can easily imagine circumstances declared against in trover, and his admission of the where great and unnecessary injury would be occa- former cause of action, used as an admission of the sioned by the landlord refusing to permit under- latter. The answer was, that in this case the de tenants to continue in occupation of their holdings fendant had acquiesced in the form of action in during the six months allowed for redemption, in which he was sued. The Court decided that the the event of the interest being ultimately redeemed. lodgment of the money must, in every case, be taken
We can imagine a temporary embarrassment to be an admission of the demand, and consequently, occasioning the non-payment of rent, proceedings was material evidence. And during the proin ejectment taken, and an habere obtained by the gress of the argument, suggested that, if a defenlandlord, who refuses to permit the under-tenants dant, intending to lodge money to one demand, were to remain in occupation, according to the provi- surprised by a different one being laid in the declarsions of the statute; we can imagine a thousand ation, it would be competent for him to apply to complicated arrangements existing between the the Court for liberty to withdraw the money lodged
. mesne landlord and the under-tenants. The su This decision is carrying the effect of an admisperior landlord has it in his power to disturb allsion by the lodgment further than that given it by įhese, and to persevere in this disturbance during the Courts at Westminster, the inclination of the six months. . Supposing the redemption is not later decisions appearing to be rather in favour of
a diminution of its effect. (See Taylor on Evi- shall have been defeated by the entry or ejectment ; dence, 558, et seq.) This is the only case now on and when such redemption as last aforesaid has record, in which the lodgment was before declara. been made, or when any such redemption has tion; but in future it will
, perhaps, be the most been made under the statutes aforesaid, by any advisable period, as, if the plaintiff take the money mortgagee or any other person, which redemption in discharge, the defendant will be liable merely to he is hereby authorised to make, all sums of money the costs of the writ. If the plaintiff goes on, and paid or advanced on account thereof, and the costs does not recover more than the sum lodged, accord- thereof, shall be, and be deemed a lien and charge ing to the decision of the Court of Queen's Bench, in in favour of the person paying the same, his execuKershaw v. Lindsay, (1, Ir. Jur. 31), the defendant tors or administrators, not only upon the estate or will be entitled to the whole costs; and if the defend interests of the person making such default aforeant feel himself aggrieved, by any misapprehension said, but upon all the inheritance in which such as to the nature of the demand in the writ, and that estate or interest is subsisting, in priority to all subsequently made in the declaration, he can adopt other interests or charges whatever upon such inthe suggestion alluded to as having fallen from the heritance, save and except any charges created Court. Though there is, we believe, no precedent under the acts relating to the drainage of lands, or for such a motion, such a one is absolutely necessary to the improvement of lands in Ireland ; and such to protect a defendant from the inconvenience he sums of money and costs shall also be recoverable would be otherwise subjected to by this decision. by the person paying the same from the person who On the other hand, the defendant must recollect, has made such default, or his representatives, in, that by lodging the money at this period, he de- and by an action of debt; and all sums of money prives himself of the power of changing the venue, paid and costs incurred in respect of such lien, or except on special grounds.
charge by any person damnified thereby, shall also be recoverable by such person, from the person
who has made default, or his representatives, in (Continued from p. 208.)
manner aforesaid ; and it shall be lawful for any XIX. And be it enacted, that if in any action or person, having the benefit of such lien or charge, ejectment brought on account of the non-payment or damnified thereby as aforesaid, to apply by peof any fee-farm rent made payable by any such grant tition in a summary way to the Court of Chancery, as aforesaid, pursuant to the statues for the time or Court of Exchequer at the Equity side thereof, being in force in Ireland as to the actions of eject for the appointment of a receiver over such estate, ment for non-payment of rent, judgment be given interest, or inheritance, and which receiver it shali for the plaintiff, and execution executed, and the be lawful for said court respectively to appoint, person who has made default in payment of the and to continue until all such sums of money and rent, or the person who but for such ejectment would costs, with interest, and the costs of such petition, for the time being have been the party to make the and of the proceedings thereunder, are fully paid payment from time to time thereafter becoming due, and discharged, and to make such order in referdo not, within six calendar months from the time of ference to such petition, as to such courts respecsuch execution executed, do such acts or take such tively may seem fit. proceedings as are or may be by law necessary for
xx. And be it enacted, that where the owner the redemption of the lands from the said judge of any lease or under-lease in perpetuity of any de ment and execution (all which acts and proceedings gree of tenure, of lands in Ireland, has required a he is hereby authorized to do and take in the same grant under this act, and the owner of the revermanner and with the same effect to all intents and sion, lease or superior under-lease, or estate, from purposes as if he were the tenant or lessee of the whom such grant has been required, disputes the person causing such ejectment to be brought), then right to such grant, or in case such owners shall and in every such case it shall be lawful for the owner differ as to what covenants, conditions, exceptions, of or any person having an estate or interest in any or reservations shall be contained in such grant, fee-farm rent made payable by any such grant as or what exceptions, reservations, or rights should aforesaid out of the whole or any part of such lands, be commuted, or otherwise, as to the terms or conor for the owner of or any person having an estate ditions of such grant or the amount of fee.farm or interest in the lands out of which such fee-farm rent to be made payable thereunder, or in case the rent is payable, or any part thereof, within nine owner of the reversion, superior lease, under-lease, calendar months after such execution executed, to or estate, who might be required to execute a grant do such acts and take such proceedings for the re- under this act be a minor, idiot, luvatic, feme covert demption of the said lands from the said judgment or not within the United Kingdom, and there be and execution, and for obtaining relief in respect of no guardian, committee of the estate, husband, the same, as under the statutes last aforesaid, any attorney, respectively, of such owner competent to mortgages of a lease might do or take for the re act under the provision herein-before contained, or deintion of such lease, or his estate or interest there is or are any arrears of rent, fine or fines, or therein, from any judgment and execution in any fees, which under this act might be required to be action of ejeetment for non-payment of rent pur- paid before the execution of a grant under this act, suant to such statutes, and for obtaining relief in and the owner required to execute such grant, bas respect of the same; and any redemption made pur- refused to accept payment thereof, or there is no suant to such statutes shall operate so as to restore person to whom the same can properly be paid, or all estates and interests in rents, or in lands which it is not known to whom the same ought to be paid,
it shall be lawful for the owner of the lease or under or ex parte, such Master or Remembrancer shall lease in perpetuity, who has required such grant, thereupon proceed to inquire into the matter of such or would be entitled to require the same, as the petition, and shall require notice, in such form as case may be, to apply to the Court of Chancery in he may think fit, of such petition and of the rule or Ireland, or Court of Exchequer in Ireland, on the order thereon, and of a time and place for the parequity side thereof, in a summary way by petition | ties to appear before him, to be served upon the praying that a grant may be executed to him under owner of the reversion, lease, under-lease, or estate this act,, or that it may be declared what covenants, from the owner whereof the grant under this act conditions, exceptions or reservations should be was or might be required, or in case such owner be contained in such grant, or that any such excep- under disability or out of the United Kingdom, and tions, reservations, or rights, as aforesaid, may be there be no guardian, committee, husband, or attorcommuted, or that the terms or conditions of such ney, competent to act for such owner under the pro. grant may be settled, or that the amount of the vision hereinbefore contained, then the Master or fee-farm rent may be determined, or such other Remembrancer may require such substituted service relief as shall be applicable to the case; and every as he may think fit of such notice as aforesaid ; and such petition shall be intituled - In the Matter of at the time and place fixed by such notice the Mas. the Renewable Leasehold Conversion Act,” ex ter or Remembrancer shall proceed to inquire and parte the person who presents such petition, and ascertain whether the petition is presented by a pershall shall state the date and names of the parties son entitled to require a grant under the provisions to whom, and the short contents of the lease or of this act of an estate of inheritance in the lands under-lease in respect of which the same is pre- comprised in the lease or under-lease in perpetuity sented, and of the last renewal thereof, with the in respect of which such petition is presented, and name of the lands, and the parish, barony, and in case he so find he shall proceed to ascertain the county in which the same are situate, and the na. amount of the fee-farm rent to be made payable by ture and extent of the estate or interest of the pe- such grant, and to settle the terms and conditions titioner in such lease or under-lease, and shall, of such grant, in case the parties differ about the where the right of the petitioner to a renewal of same or the nature of the petition shall so require
, such lease or under-lease is disputed, state that and when the owner from whom a grant might be such a right is disputed, and shall state such other required is under disability, and there is no guarmatters as the circumstances of the case may require; dian, committee, husband, or attorney as aforesaid and every such petition shall be verified by the affi- of such owner, shall nominate a person to be subdavit of the person by whom the same is presented, stituted for the purposes of this act in all proceed. or of his solicitor, attorney, or agent, or otherwise ings under such petition as aforesaid in the place of as the court shall consider sufficient, and in all cases such owner; and where there is any arrear or sum under this act the reversion, lease, and under-lease of or in respect of rent, or any fine or fines, or fees, respectively shall be sufficiently represented by the which under this act might be required to be paid respective owners thereof, and it shall not be neces- before the execution of a grant under this act, and sary to bring before the court any other parties in the owner required to execute such grant has refused terested in such reversion, lease, and under-lease to accept payment thereof, or there is no person to respectively unless in special cases the court shall whom the same can properly be paid, or it is not otherwise direct.
known to whom the same ought to be paid, the XXI. And be it enacted, that where such petition Master or Remembrancer shall require the full as aforesaid is presented in respect of a lease or amount of such arrear or sum of or in respect of under-lease the right to a renewal of which is dis- rent, and of such fine or fines, with interest thereon, puted such petition shall be heard by the court, and aud of such fees, to be lodged, under a special die the court may upon hearing determine the right to rection of the Master or Remembrancer
, in the Bank such renewal, or retain the petition until such right of Ireland, in the inatter of such petition, with the be established on a bill filed or other proper proceed- privity of the Accountant- General of the Court
, ing taken for such purpose, or may refer the said for the use of the party specified in such direction ; matter of such petition to the Master or Remem and the fact of such payment, and the cause or reabrancer, or make such other order in the matter of son of the previous nonpayment of the amount so such petition as the court may think fit; and such paid, and the facts relating thereto, shall be stated petition sball, days before the hearing thereof, by the Master or Remembrancer specially in his be served by or on behalf of the party presenting the report. same on the owner of the reversion, lease, under lease, XXIII. And be it enacted, that the Master or or estate from the owner whereof the grant under Remembrancer shall make his report in relation to this act was required; and where such petition is pre- the matter of such petition, and such report shall sented in respect of a lease or under-lease the right state the application to the court, and the result of to a renewal of whch is not disputed, it shall be in his inquiries and proceedings under the reference
, the discretion of the court either to make an order and where the petitioner is entitled to a grant such for hearing thereon, or else ex parte to make an report shall refer to the draft of the grant as settled order referring the matter of such petition to the or approved by such Master or Remembrancer, and Master or Remembrancer.
shall state by whom such grant and the counterpart XXII. And be it enacted, that where the matter thereof should be executed, or should have been of any such petition as aforesaid is referred to the executed if not under disability or out of the United Master or Remembrancer, either upon the hearing Kingdom, and shall state all such other matters as
to the Master or Remembrancer may seem expedient the owner of the immediately superior under-lease for carrying into due execution the provisions of this in perpetuity to procure a renewal thereof, and wheact.
ther the time for the renewal of such inferior underXXIV. And be it enacted, that after the Master lease or of any under-lease superior thereto or of or Remembrancer has made his report, notice of the the lease in perpetuity has or has not arrived, to filing of such report shall be served by or on behalf apply by petition as aforesaid, praying that a grant of the petitioner on the party on whom notice of the may be executed to such first-mentioned owner unpetition is required to be served ; and at any time der this act, and also praying that the like grant or before the expiration of the next ensuing term after grants (as the case may require) may be made to such service it shall be lawful for the petitioner or and accepted by the owner of the immediately supethe party so served, or any other person interested rior under-lease in perpetuity, and to and by the in the matter of the petition or report (such other owner of each under. lease in perpetuity (if any) person first obtaining, on an ex parte motion, the superior to such under-lease (where such owner is leave of the court su to apply,) to apply to the court under the like obligation to the owner of the immeby motion on notice to the opposite party, or where diately inferior under-lease in perpetuity to procure the application is by any such other person as afore- renewal, and to and by the owner of the lease in said, on notice to both parties to the proceedings perpetuity where such owner is under the like obliunder the petition, and to such other persons (if gation to the owner of the immediately under-lease any) as the court may, on such ex parte application in perpetuity to procure renewal) from the owner as aforesaid, have directed, to set aside such report, or respective owners from whom a grant or grants or to vary or amend the same in any particulars might be required under this act by such respective specified in such notice of motion; and thereupon it owners as aforesaid, and praying all such other shall be lawful for the court to make such order in relief in relation to such grant or grants as may be relation to the matters aforesaid as the court may applicable to the case ; and upon such petition being think fit; and the court, if it so think fit, may, presented it shall be in the discretion of the court upon the hearing of any such motion, either wholly to make an order for hearing thereon, or, ex parte, confirm such report, or vary or amend the same in to make an order referring the matter of such petithe particulars mentioned in such notice, or in any tion to the Master or Remembrancer; and all such other particulars, and confirm the same, with such inquiries, directions, orders, and proceedings shall variations or amendments ; and in case no such ap- and may be made, given, and taken in relation to plication be made to the court within such time as the several grants prayed for by such petition as if aforesaid, such report may and shall be confirmed such grauts had been prayed for by the owners to according to the course and practice of the court. whom such grants are thereby prayed to be made ;
XXV. And be it enacted, that it shall be lawful and all the provisions herein contained in relation for the court, upon the hearing of any such motion, to the proceedings by and before the Master or Remade on notice as aforesaid, or upon any application membrancer, his report, and the execution by him made after the confirmation of the Report, where of a grant or counterpart upon or after a reference it may see fit so to do, on account of the disability, to such Master or Remembrancer under a petition absence, or refusal of any person by whom the grant presented under the provision herein-before containor counterpart respectively should be executed, to ed, shall extend and be applicable to a reference order that such grant or counterpart, as the case to the Master or Remembrancer, under a petition may be, be executed by the Master or Remembran- presented under this provision; and where there is cer; and every grant and counterpart respectively any arrear or sum of or in respect of rent, or any so executed shall have the same force and effect as fine or fines, or fees, which under this act might be if the same had been executed by the owner of the required to be paid before the execution of a grant reversion, lease, superior under-lease, or estate, or under this act, and the owner to whom such grant lease, ander-lease, or inferior under-lease, as the should be made neglects or refuses to pay the same case may be, on account of whom the same is so exe within such time as the Master or Remembrancer cuted by the Master or Remembrancer.
or the court may appoint, it shall be lawful for any XXVI. And be it enacted, that it shall be lawful person interested in the lands to be comprised in for the owner of an under-lease in perpetuity im- the grant or in any fee-farm rent to be made payable mediately derived out of a lease in perpetuity, where out of such lands or any part thereof, and who shall such owner is entitled to require the owner of the be in this behalf authorised by the Master or Release in perpetuity to procure the renewal thereof, membrancer or the Court to pay such arrear or sum and whether the time for renewal of such lease or of or in respect of rent, and such fine or fines, with under-lease has or has not arrived, to apply to the interest thereon, and such fees; and all sums so Court of Chancery, or to the Court of Exchequer paid, and the costs (if any) incurred in relation to at the Equity side thereof, by petition, in manner such payment, shall be deemed a like lien and charge herein-before mentioned, praying that a grant may in favour of the person praying the same, bis execube executed to the owner of such under-lease under tors or administrators, and with the like priority as this act, and also praying that a like grant may be herein-before provided in the case of money paid on made by the owner of the reversion to and accepted account of the redeption of lands from a judgment by the owner of such lease in perpetuity; and pray and execution in ejectment, and the costs of such ing such other relief as may be applicable to the redemption, subject only to the priority given to the case; and it shall be lawful for the owner of an charge and lien created in respect of such money inferior under-lease in perpetuity entitled to require and costs as last aforesaid, and all sums of money
paid under this provision and the costs in relation notice relates or the greater part thereof are situate
, to such payment, shall also be recoverable by all and also to give such notice to any principal occu the like ways and means, with the costs of the pro- pier of any of such lands, or, if the Master or Rem ceedings for recovery thereof, as money paid for membrancer so direct, to send such notice by the such redemption as aforesaid and the costs thereof post to the last known address of the party on whom are under the provision herein-before contained re- the same shall be required to be served, within such coverable.
period as to admit of its being delivered within the XXVII. And be it enacted, that all persons who period prescribed, if any, for such notice to be given, shall become parties to any proceedings under this or to serve such notice on such person and in such act, by making any application to the court, or by manner as the Master or Remembrancer directs. submitting to the jurisdiction thereof, or by attending XXX. And be it enacted, that the proceeding before the Master or Remembrancer in the course under this act shall abate or be suspended by any of such proceedings, or by otherwise taking part death or transmission of interest, except so far as therein, and the representatives of the petitioner, and it shall be deemed necessary for the carrying on of of all such persons, and all persons claiming under such proceedings that any person not before the him or them by their act or by act of law subsequent court should have notice of or be required to attend to their becoming subject, shall for the purposes of such proceedings; and in case of death or transmis this act be subject to the jurisdiction of the court, sion of interest, and wherever, after the presentation and to all orders of the court and of the Master or of a petition under this act, the direction of the Remembrancer in the course of any such proceed court is requisite for carrying on the proceedings ings in like manner and as fully as parties to a cause under the same, or for effecting the objects thereof
, pending in the court are so subject in such cause. or otherwise relative thereto, it shall be lawful for
XXVIII. And be it enacted, that in order to any person interested in such proceedings to apply enable the Master or Remembrancer to ascertain to the court for an order for any such purpose, and such particulars as it may be necessary for him to it shall be lawful for the court to make such order ascertain upon any reference to him under this act, on any such application as it may see fit. be shall be at liberty to examine upon oath the party XXXI. And be it enacted, that the costs of all who has presented any petition, and to inquire by proceedings by and under any petition presented affidavit and by examination of witnesses, and by under this act shall be in the the discretion of the other evidence, respecting any of the matters referred court. to him; and the owner of any lease or under-lease XXXII. And be it enacted, that all the provisions respecting which any inquiry is made as herein-be- of this act in relation to the amount of the fee-farm fore directed shall, when thereto required by the rent to be made payable by a grant under this act
, Master or Remembrancer, produce such lease or and the covenants, conditions, exceptions, and reunder- lease, and all other deeds or instruments under servations to be contained in such grant, the com or by virtue of which such owner holds the lands mutation of exceptions, reservations, and rights, respecting which such inquiry is made, and shall the allocation of land, and all other provisions of produce and furnish such proof or information as this act concerning such grant and the effect and the Master or Remembrancer requires as to the rent, consequences thereof, shall, so far as the same are fine or fines, and fees (if any) payable under such consistent with the provisions of this act in relation lease or under-lease, and as to the existence and to the proceedings by and under and consequential the age of the person or persons upon whose life or upon a petition presented under this act, extend and lives (if any) such lease or under-lease depends, be applicable to every such grant for or in relation and as to the rent, fines, interest, and fees (if any) to which a petition is presented. which have becoine due or payable.
XXXIII. And be it enacted, for the purposes of XXIX. And be it enacted, that whenever any this act every person seised of or entitled at law or notice required to be given by this act, or which is in equity to the reversion expectant on any lease in required or necessary for carrying into effect any perpetuity as tenant in fee simple or in fee tail, of the provisions of this act, cannot be given or de general or special, or as tenant in dower or by the livered to the person to or for whom such notice is curtesy, or for life or lives, or for years determindirected or intended, it shall be sufficient for the able on a life or lives, or for a term of years absoperson obliged to give such notice to leave the same lute of which forty years or more are unexpired at at the last known or most usual place of abode of the time of the application for a grant under this the person to or for whom such notice is directed act, and also every feoffee or trustee (for charitable or intended, with an inmate of such place of abode or other purposes whatsoever) of any such reversion aged sixteen years or upwards, if such place of abode as aforesaid, for any such estate or interest therein be within Ireland, and if the same be not within as aforesaid, (whether such estate or interest be or Ireland, then to serve such notice on the agent or not determinable upon the execution or fulfilment attorney of such person, or the receiver of the rents of any trusts,) who is in the actual receipt of the of his estate, and if such agent, attorney, or receiver rent reserved by any lease in perpetuity, and every cannot be discovered, then it shall be sufficient ser-executor or administrator who in that capacity, of vice of such notice to publish the same at least once as a special occupant of an estate pour autre vie, in each week, in two successive weeks, by advertise or as being entitled to an estate pour autre vie unment in the Dublin Gazette and in two newspapers der any statute or otherwise, is in such receipt as published in Dublin, and in one newspaper circu- aforesaid, and also any archbishop, bishop, parson
, luting in the county in which the lands to which the or other ecclesiastical person as to a reversion held