for non-payment of rent does not apply to such a case, coming, as I conceive it does, within the very terms of the Act of Parliament. There has been a great deal of discussion upon a decision which perhaps is not exactly in point, as regards the case now before us; I allude to Thomas v. Packer. The decision there seems to me to be a perfectly sound one. It only followed up a long series of decisions in England, including Doe d. Thompson v. Amey (a); Doe d. Bromfield v. Smith (b); Doe d. Oldershaw v. Breach (c); Doe d. Tilt v. Stratton (d). It appears to me that if the question were now to be considered, for the first time, in the Court of Error, there would be found much reason for contending that the words "lessor " and "lease," in the 11 Anne, c. 11, are not confined to cases where the relation of lessor and lessee is created by an instrument in writing. In the Statute of Frauds (e), the word "lease," in section 1, is used to import a parol lease; “all leases, &c., made or created by "livery and seisin, or by parol, &c., shall have the force and effect "of leases or estates at will only." And the 2nd section excepts, from the operation of the 1st section, "all leases not exceeding the term of three years from the making thereof," &c. If a parol lease for the term of three years be good, there can be no reason why it should not be good with all the incidents which by law can be annexed to a demise for such a term, and, among them, that of a condition for re-entry for non-payment of rent. It is, however, wholly unnecessary, in my view of the present case, to consider that topic; because I am of opinion, upon the best consideration which I have been able to give to the case now before us, that the lands in question have been enjoyed under an instrument in writing, which was, during the continuance of the lives in the head lease, a demise for a term of 950 years, dependent upon the lives, and which, after the determination of those lives, amounted to a continuing contract in writing, under which contract the lands have continued to be enjoyed, and which contract is still subsisting. There is one topic remaining, as to O'Callaghan's peculiar position. T. T. 1859. FOOT v. WARREN. Exch. Cham. FOOT V. WARREN. T. T. 1859. I did, at one time, consider that there was a great difficulty in deciding that O'Callaghan was a person holding as tenant to the plaintiffs; but I think he must be considered either as a trespasser, or as being in privity with the person who held as tenant under the plaintiffs when O'Callaghan obtained possession. The form of the issue, however, precludes any question upon that point. I agree with my Brother CHRISTIAN, that the form of pleading does not affect the principles of law; there must be such a holding as is required by the Ejectment Statutes. But the form of the issue shows that, if the lands are held by any person as tenant to the plaintiffs, the plaintiffs would be entitled to recover; and, if I am right in my view of the Ejectment Statutes, a tenancy does exist, still undetermined within those statutes, under the instrument of 1782. On all the other points, I concur with the other Members of the Court; but, holding the opinion which I have expressed, in reference to the applicability of the Ejectment Code to the present case, I think the judgment of the Court below ought to be reversed; that there ought not to be a venire de novo, but that judgment should be given for the plaintiff in error, who was defendant below, and who obtained the verdict. MONAHAN, C. J. I concur in the opinion expressed by the majority of the Court. The plaintiffs have altogether failed to satisfy my mind, at least, that this ejectment for non-payment of rent can be maintained. It is unnecessary for me to state at any length the grounds upon which I have come to that conclusion; the more especially, as I unfeignedly say that not a single argument occurred to my mind which has not been already put forward more clearly than I could express them by my Brothers FITZGERALD, CHRISTIAN and GREENE, who have gone at length and in detail into their reasons. I am quite satisfied that there is no foundation for the fanciful application of the doctrine of enlargement to this case. If that doctrine does apply to it, cadit quæstio; because the result is, that the lease of 1782 is still a valid and subsisting lease for 950 years. But I confess it does occur to me that, to argue that because Nash, in 1769, being Exch. Cham. FOOT v. WARREN. possessed of a lease for certain lives then in existence, and such T. T. 1859. other lives as should be added thereto, pursuant to a covenant therein for perpetual renewal, carved a term out of that lease; nevertheless, although the lease for lives is at an end by death of the lessees, and the lessor's interest has been surrendered, yet that the terms carved out of it are subsisting, appears altogether inconsistent with the doctrine of enlargement. The effect of the surrender was not to enlarge, but to merge the lease in the reversion; of course without prejudice to any subsisting legal estates. I therefore agree with the other Members of the Court that there is no foundation for the application of the doctrine of enlargement to this case. This being the opinion of the majority of the Court, on the doctrine of enlargement, it is not necessary to decide whether the renewal of 1794 operated as a continuance of the then subsisting under-leases. Though this is so, I do not wish it to be understood that I personally entertain any doubt as to the construction of the 5 G. 2, c. 4, s. 4 (Ir.)-[His Lordship here read the section.]-It appears to me clear that this section applies only to surrenders of existing, and not of expired, leases. This is, however, only my individual opinion. There being then in the case before us no demise existing, except a parol tenancy from year to year, the question is not, whether there may not be a yearly tenancy on which ejectment for non-payment of rent can be maintained; but whether the yearly tenancy in this case is such that an ejectment for non-payment of rent can be maintained upon it? If this were the case of an express tenancy from year to year, created by a lease or demise in writing, with the ordinary clauses and covenants between landlord and tenant, I do not mean' to express any opinion as to whether, in such a case, an ejectment for non-payment of rent under the statutes could or could not be maintained. That is the question on which the Judges, in the cases which have been referred to, have declined to express an opinion; but I deny altogether that ejectment for non-payment of rent can be maintained on any holding created merely by parol. My impression as to the case of Thomas v. Packer is, that it did not enter into the imagination of Counsel there that they were Exch. Cham. FOOT บ. WARREN. T. T. 1859. arguing a case on an ejectment for non-payment of rent, under the English Common Law Procedure Act;* it would rather appear to me to be an ejectment at Common Law for forfeiture, where the rent was behind-hand beyond the time stipulated for its payment, and the landlord had a right under the lease, on that account, to re-enter. But even assuming that that case was under the English Common Law Procedure Act, which is nearly similar to the 11 Anne, c. 11 (Ir.), yet I am not here to construe that Act standing alone, but to construe it in connection with several other Acts, all together constituting a code; and, in the 8 G. 1, c. 2, s. 1 (Ir.), I find a provision that the landlord is to make "due proof of the perfection of the counterpart of the lease." If, therefore, as I clearly hold, there must (prior to the 25 G. 2, c. 13) have been a written instrument containing a legal demise, the question is, is the lease of 1782 such a document as that the present ejectment can be maintained upon it? The demise made by that lease depended on the continuance of the estate of the lessor; that estate depended on the subsistence of the lease of 1769, which, in my opinion, ceased before 1794, and immediately thereupon the holding ceased to be under the lease of 1782; until rent was paid and accepted, no new tenancy was created, and the tenant might have been ejected without any notice to quit; but the moment a yearly rent was paid, it is to be thence inferred that the parties have entered into a parol contract to hold from year to year, on the terms on which they formerly held, so far as those terms are applicable to a tenancy of that description. I cannot distinguish the case from the ordinary one where a tenant for life of lands makes a lease for 200 years, and dies, the lessee's interest thereupon determines, but the remainderman continues to receive the rent; by so doing, however, he only creates a parol yearly tenancy, because the lessee's former estate has altogether determined. The proof of triennial possession, under the 8 G. 1, c. 2, is merely substitutional for a more complete deduction of title; but the defendant is not thereby precluded from showing that his lessor's title has determined since the making of the lease. I do not apprehend that the difficulties which have been 15 & 16 Vic., c. 76, s. 210. Exch. Cham. suggested will follow from our present decision. I do not think T. T. 1859. that the landlord is remediless, because he cannot maintain ejectment for non-payment of rent on a parol yearly tenancy. By notice to quit, the landlord may determine the tenancy and recover the land, if he thinks fit. The only remaining question is, whether the lease of 1782 is an article, minute or contract in writing, within the 25 G. 2, c. 13 (Ir.). Now it is only necessary to read the recital in the 2nd section of that statute to see what is the nature of the "article, minute or contract in writing" which is contemplated by it. It recites that, "Whereas several lands, &c., are enjoyed under "articles, minutes or contracts in writing, whereby the rent payable "for the same is ascertained, but the said articles, &c., do not "contain an actual demise ;" and it then proceeds to enact a remedy, and to enable ejectment for non-payment of rent to be maintained, as if the writing had contained an actual demise, and as if a clause of re-entry had been expressly specified therein. This statute was intended to apply to accepted proposals and agreements for leases, but it was not intended to prevent a tenant from showing that the lease under which he formerly held had determined. In Shenton v. Corbally (a), Sir W. M'Mahon, the Master of the Rolls, was of opinion that a covenant for perpetual renewal was not an "article, minute, or contract in writing," within this statute. In my opinion, the judgment of the Court of Queen's Bench should be affirmed, and a venire de novo awarded. (a) 1 Hog. 403. NOTE.-See Piggott v. Stratton (29 Law Jour., Ch., 1). FOOT WARREN. |