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H. T. 1844. that immediately after such seizure, the owners of the vessel served Exch. of Pleas the Sub-sheriff with a notice that a large sum of money, amounting

CROKER

ข.

HUGHES.

to £900, was due and owing to the ship owners by the defendants, as freight for the conveyance of the cargo so seized, and that same was payable to the ship owners out of the cargo in priority to any other debt due by the defendants, and further, required the Sub-sheriff to pay the same; that the Sub-sheriff, in the month of September 1841, sold the goods and timber so seized, and that the same produced a sum of £1068. 11s. 6d., and that after the payment of Queen's duty and other expenses there remained in the Sheriff's hands a sum of £970. 4s. 3d.; that out of said sum he paid the ship owners on foot of their claim the sum of £882. 4s. 11d., and the balance to the attorney of the said Samuel Croker.

Walter Bourke now moved to make absolute the conditional order, notwithstanding the cause shown; and relied on the admissions made by the Sub-sheriff that so large a sum had been levied by him beyond the amount marked on foot of the writ.

W. D. Ferguson, contra.

This being an application to the summary jurisdiction of the Court against one of its former officers, should be made promptly and while the facts are still recent: Hayden v. Barton (a). The High-sheriff for the year 1840 has long since gone out of office. In England, by the statute 20 G. 2, c. 37, no Sheriff, whose period of office has expired, can be called upon to make a return to any writ, unless within six months after he has gone out of office; and although that statute does not extend to this country, yet the practice here is founded in analogy to that statute: Moore & Lowry's Rules, p. 149; Yeo. & Billing, 118. The statute being for the ease and benefit of the Sheriff, has always received in England a strict construction: The King v. Jones (b); The King v. Adderley (c).

The defendant has taken the law into his own hands, and has brought three distinct actions of trespass against the Sheriff, Subsheriff and their bailiffs; he should therefore be left to the ordinary redress given him by law.

BRADY, C. B.

The limitation as to the ruling of the Sheriff applies only to the plaintiff; the defendant has a right to know what has been done

(a) 5 Ir. Law Rep. 410.

(b) 2 Term Rep.1.

(c) Doug. 463.

with his property. We must, therefore, make the conditional order absolute; but under the circumstances of this case, without costs.

ORDER :-It is ordered by the Court that the said conditional
order be made absolute; and accordingly, that the said John
Bourke do return the writ of fieri facias in this cause, return-
able on the 2nd of November 1841, without further motion.

H. T. 1844.
Exch.of Pleas.

CROKER

v. HUGHES.

ALLEN v. LINEHAN.

COVENANT FOR RENT. The declaration was in the usual form by lessor against lessee, stating the reddendum to be "yielding and "paying every year during the said term the yearly rent of £156 over "and above all taxes, charges and impositions whatsoever, quit-rent "and Crown-rent excepted." The covenant was "to pay the said "reserved yearly rent of £156 on the days and times, &c., clear over "and above all taxes as aforesaid," and the breach "that during the "continuance of said term, &c., a sum of £312 of the said rent, for two 'years of the said term then elapsed, became and was due and in arrear to the plaintiff, contrary to the tenor and effect, true intent "and meaning of the said indenture and said covenant," &c. declaration described the plaintiff as a debtor to the Queen; omitted the quo minus clause.

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The

but

Jan. 14.

In covenant for rent in arration averred

rear, the decla

that the defen

dant covenant-
ed to pay the
yearly rent of
£156 over and
above all taxes,
charges and
impositions
whatsoever,
quit-rent and
Crown rent ex
cepted.
Breach, that
two years' rent

was in arrear,
without any
exception or
reference to

the quit and

Crown rent.

On special demurrer, Held,

Special demurrer, alleging several causes, of which two only were relied on, namely, "that the breach in the said declaration assigned "is too large and without any qualification, as not containing any "exception of, or reference to, quit-rent and Crown-rent; and does "not aver the said quit-rent or Crown to have been paid or satisfied, "or that same is not in arrear and a charge upon the said premises, omission of the

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or that the defendant did not discharge an amount of quit or Crown"rent equal to the said reserved rent." And also, "that the "said declaration does not contain any quo minus clause, or other "allegation or matter whatsoever, showing expressly how the Court "had jurisdiction to entertain the action," &c. Joinder in de

murrer.

that the breach

was sufficient.

Also that the

qui minus

clause is not ground of special demurrer.

J. D. Clanchy, for the demurrer.

The general rule of pleading is, that when an exception is intro

ALLEN

V.

LINEHAN.

H. T. 1844. duced into the obligatory clause or covenant of an instrument or Act Exch. of Pleas of Parliament declared on, that exception must be expressly stated in the declaration and must be negatived in the breach. This rule is the same, whether the exception be set out in hæc verba in the obligatory clause, or whether it be merely referred to there and set out in a subsequent part of the instrument. In Vavasour v. Ormrod (a) it was held to be a variance to omit in a declaration an exception which reduced the rent reserved upon the happening of a certain event, and which was stated in the obligatory part of the instrument "except as is hereinafter excepted." In Spieres v. Parker (b) it was held that in an action of debt on a statute the exceptions to the penal clauses of a statute declared on must be negatived; and this decision has been followed in this country in Molony v. O'Brien (c). This being so, it necessarily follows that some averment must be introduced in the breach showing that the case is not within the exception: Gill v. Scrivens (d). In 1 Chit. Pleading, 335, the general rule is stated, that it is necessary in the breach to negative the exception stated in the declaration, and this has been held in the late case of Wright v. Goddard (e). There the declaration was on a covenant to repair, reasonable use and wear only excepted, and the breach was, that defendant did not repair or keep in repair, &c., without any notice of or averment respecting reasonable wear and tear; and this was held bad on demurrer. So in this declaration the reddendum contains an exception of quit-rent and Crown-rent, and this is in effect incorporated in the covenant under the words all taxes as aforesaid, on the principle that "verba relata inesse videntur." The breach then, not averring the quit-rent or Crown to have been paid or not to be outstanding, must be considered bad on this demurrer, as not negativing the exception.

*

Clanchy then proceeded to argue that the declaration was bad, for the omission of the quo minus clause; but was stopped by the Court, who stated that this having been three times formally decided by this Court to be no objection to a declaration, they would not permit the question to be re-argued.

Berkeley, in support of the declaration, was not called on by the Court.

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(e) 8 Ad. & El. 144.

Higgins v. M'Clenahan, Ir. Term Rep. 253; Phillips v. Fitzpatrick, Hay. & Jo. 738; Keogh v. Murray, Exch. June 8, 1843.

BRADY, C. B.

The Court have no doubt whatever that this demurrer must be overruled. Certain propositions of law, with respect to the stating exceptions in the declaration and negativing them in the breach, have been laid down, about which there can be no doubt; but the Counsel for the defendant has altogether failed in applying these principles to the present case. The words which have been relied upon, "except quit-rent and Crown-rent," do not at all form an exception from the rent; they merely contain a statement that the tenant is not to be liable to these, in addition to the rent, as he is to be liable to all other charges and impositions. The exception (if any) is from the taxes and charges, not from the rent; the covenant then is to pay the full rent, and the breach following the covenant is properly assigned.

PENNEFATHER, B.

The exception, with regard to the quit-rent, applies to the words "other charges," and is out of these which the tenant is liable to pay, and from which the quit-rent, which is in the nature of a head-rent, is excepted, and which, if he pays, he is to get credit for; and the exception is introduced rent; the quit-rent should be impounded with taxes, charges and impositions, to which the tenant is to be subject.

LEFROY, B., and RICHARDS, B., concurred.

H. T. 1844.
Exch. of Pleas.

ALLEN บ.

LINEHAN.

́Demurrer overruled.

THEOBALD MORRISSEY

บ.

MARGARET WALSH, Executrix of EDMOND WALSH, deceased.

NUL TIEL RECORD.-The record, when produced in Court, set out as follows:-"Be it remembered, &c., Theobald Morrissey, &c., the "plaintiff, &c., brought here into Court his bill against the

Rev.

Jan. 27.

A sci. fa. rement for the cited a judgnot performing

certain promises and

assumptions; the judgment had been entered on the common counts, on plea of nul

tiel record. Held, no variance.

v.

WALSH.

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66

H. T. 1844. "Edmond Walsh, &c., of a plea of trespass on the case, on promises, Exch. of Pleas. for that whereas the defendant, &c., was indebted to the plaintiff MORRISSEY "in £120, for the price of goods then and there sold and delivered by "the plaintiff to the defendant at his request: and in £100 for the 'price and value of other goods then and there bargained and sold "by the plaintiff to the defendant, and under and by virtue of that "bargain and sale delivered to Michael Bartley and Johanna Bartley "at the defendant's request: and in £20 for money then and there "lent by the plaintiff to the defendant at his request: and in £20 "for money then and there paid by the plaintiff for the use of the "defendant at his request: and in £100 for money found to be due "from the defendant to the plaintiff on an account then and there "stated between them. And therefore the defendant afterwards, to "wit, on the day and year last aforesaid, and at the place aforesaid, "in consideration of the premises respectively, then and there pro"mised the plaintiff to pay him the said several monies respectively "on request, yet he has disregarded his promises, and has not paid "any of the said monies," &c. The record then set out the verdict: "And the jury, &c., being duly summoned, &c., upon their oaths say, that the said Edmond Walsh did promise in manner and form as the said Theobald Morrissey hath thereof complained against "him," &c.

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66

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Sci. fa. set out: "Victoria, &c., Whereas Theobald Morrissey, &c., "recovered against the Rev. Edmond Walsh the sum of £147, &c., as "well for his damages which he sustained by occasion of the said "defendant not performing certain promises and assumptions made "by him to the said plaintiff as for expenses and costs, &c., as by the "records of the said Court fully appears."

The record then set out the death of Edmond Walsh, and that Margaret Walsh was his executrix, and usual conclusion of the writ of sci. fa., and the plea of nul tiel record. Pleas :-Replication tiel record.

Waller, in support of the plea, having cited the following cases— Keatinge v. Keatinge (a), Edwards v. Lucas (b), was stopped by the Court, who called upon

David Lynch, with whom was Vincent Scully, contra.

The case of Keatinge v. Keatinge is decided on the ground of the case of Edwards v. Lucas; and in that case the cause of action was a promissory note. The declaration contained a count upon the note,

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