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1804.

O'CONNOR v. SPAIGHT.

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Feb. 21, 23. I HE defendant by indenture bearing date 31st March,

Where there 1780, demised certain premises to the plaintiff for three have been lives, at a rent of 20s. per acre for every acre the demised rious dealings

between landpremises should or might contain, under which demise the lord and tenant,

not so as to produce plaintiff entered into possession; the number of acres was not so ascertained, nor did plaintiff appear to have made any regu- complicated to

be taken at law lar payments of rent eo nomine, nor had defendant given and the landa him any receipts in full or for precise gales ;* but from 1780 lord has

brought eject. down to 1796, the plaintiff had been in the constant ment for nonhabit of accepting defendant's bills, of paying money to payment.

rent, the tenant his order, of selling him goods on credit, and supplying him may file a bill,

before judgand his family with money, the particulars of which several sums were set out in a schedule annexed to the bill, and for for an action

on the foot of which the plaintiff insisted that if credit were given, a ba- those dealings. lance would appear due to him. The defendant brought

wht and to have tbe

48" balance applied his ejectment for non-payment of rent, as of Michaelmas to the rent

claimed to be Term 1796 ; in April 1797, plaintiff filed his bill, setting duer forth the particulars of the various dealings between the tenant need not

bring in the parties, and praying an account on the foot thereof, and that rent under stat. defendant should pay plaintiff the balance due to him after 4 Geo. 1. c. 5. deducting such sum as might appear due to the defendant on account of rent; and praying an injunction against the ejectment. On 29th May 1797, consent for judgment was given, and on 1st July, the landlord, by his affidavit according to the statute, claimed a sum of 2161. 8s. due to him for rent above all just allowances.

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The defendant's answer submitted to the account, but refused credit for most of the items set forth by the bill,

* A common expression in Ireland for payments made at several different times.... Amer. Ed. VOL. I.

RE

1804. O'CONNOR

SPAIGHT.

denying the facts as to some, and alleging that as to others there were double charges; and insisted that so far from there being a balance due to plaintiff, a sum of 2161. (which was considerably more than a year's rent) was due by him at the time of the ejectment brought, after making all just allowances. An injunction had been obtained for want of an answer, and upon the coming in of the answer, an order was made to continue the injunction till the hearing, on plaintiff's bringing in the sum sworn due within 40 days from the day of filing the answer(a); this order not having been complied with, the injunction was dissolved and the defendant executed his habere : the plaintiff proceeded to examine witnesses, and proved several items in his account which had been denied by the answer.

Agreement

The bill also insisted upon the benefit of an alleged for an abate.

agreement for an abatement of the rent, and a paper writing ment of rent of lands is was produced in evidence ; but the court holding that such within the sta

an agreement came within the statute of frauds, and the tute

paper produced not being signed as the statute requires, and there not appearing any distinct payment according to the abated rent, that point was no further urged.

JO

A preliminary objection was also made on the part of the defendant, that as the possession had been changed pending the suit by the execution of the habere, and it was no part of the prayer of the original bill to have the possession re

stored, plaintiff ought to have filed a supplemental bill to It is not necessary to file a put that matter in issue, and pray that specific relief. But supplemental bill, in order

the Lord CHANCELLOR said that it was not the practice in to state that an England to file a supplemental bill where there was a mere harbere has been executed change of possession upon an injunction being dissolved,

where there were no accompanying circumstances, and changed pende ing the cause.

(a) See 11 Ann. c. 2, 3. 4.

1804,

where the only purpose of the bill would be to state that fact : because it was a fact within the view of the court. .

SPAIGHT

For the defendant, Mr. Saurin, Mr. Fitzgerald, Mr. Gould and Mr. Dwyer, insisted, First. That the bill should not be entertained because the case made by it might have been a defence at law to the ejectinent as it goes to shew that a year's rent was not due, and if the tenant has proved that case here, he might also have proved it at law. It will be highly mischievous if a tenant may file such a bill for the purpose of raising an injunction and involve his landlord in an equity suit, whenever an ejectment is brought for non-payment of rent, instead of contesting the matter at law, and shewing on the trial (if he can) that a balance is due to him by his landlord, so as to reduce the sum due within a year's rent. But Secondly. The tenant should according to stat. 4 Geo. 1, c. 5, have brought into court the rent ascertained at law to be due : and although his bill was filed before the amount of it was ascertained, he might upon judgment being obtained, have amended or filed a supplemental bill and thereon have brought in the rent, as was done in D'Arcy v. Beasly. It is the obvious policy of all these laws not to allow the tenant to litigate with his land. lord except upon the terms of bringing in the rent ascertained at law to be due.

For the plaintiff, Mr. Burston, Mr. Hawksworth and Mr. Henchy, in reply.

The account in this case was too complex to be taken at Nisi Prius. It includes various dealings for a space of sixteen years, during which time the landlord never gave his tenant a single distinct acquittance for rent; and withont taking this complex account, it cannot appear that the rens

1804.

O'CONNOR

v. SPAIGUT.

was not due. As to the second objection, the stat. 4 Geo. 1, c. 5, applies in express terms only to cases where the bill is filed after judgment. Besides that act was intended merely to apply to cases where the rent was actually due, and the tenant came to be relieved against lapse and omission in not paying it. But here the rent was not due, and it would therefore be unconscientious in the landlord to avail himself of this act to work a forfeiture where it was evidently intended for a very different class of cases. The te-. nant here has an original ground for filing his bill quite distinct from what the act gives, and in such case he is not obliged to bring in the rent; and this was Lord Clare's construction of this act in Hyde v. Morgan(a).

Upon the opening of the case, the Lord ChaNCELLOR put the plaintiff on shewing that there was a complicated account depending between him and the defendant; and to falsify defendant's answer as to some material items in the account as sworn to by him. This having been done, his lordship directed the account, observing as follows: !, Lord CHANCELLOR.

The principle on which Lord CLARE said he would act, was, that if a bill were filed for the purpose of obtaining an injunction, and the defendant put in an answer, swearing in such a manner, as that an injunction could not be maintained upon it, and that the answer was afterwards falsified, so that the case at the hearing would maintain the injunction, he would not have permitted that on which the court was compelled to rely in the first instance to affect

a) It was found impossible to collect a sufficiently accurate note of this case or of D'Arcy v. Beasly, to warrant any attempt at in: troducing them at length.

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the justice of the case, and he would have put the plaintiff into the same situation as if the answer had been originally fair. This, I confess, is the opinion I entertain. The act says, " if more than a year's rent be due, such and such " things shall be done ;" but the act assumes the fact that a year's rent is due. If in the result it appears that by means of transactions of this kind between the parties that was not the case, I do not think the act intended to preclude relief. I have a case of Morton v. Drew where the arrear claimed was an arrear not due during the possession of the plaintiff, but during the possession of his father, of which the plaintiff might know nothing ; now, where the landlord had accepted rent from the tenant actually in possession, but during that possession had an account pending with his father, on which he was entitled to a balance, it would be monstrous to construe the act to cause a forfeiture under such circumstances.

The ground on which I think that this is a proper case for equity, is, that the account has become so complicated that a court of law would be incompetent to examine it upon a trial at Nisi Prius, with all necessary accuracy, and it could appear only from the result of the account that the rent was not due. This is a principle on which courts of equity constantly act by taking cognizance of matters, which, though cognizable at law, are yet so involved with a complex account that it cannot properly be taken at law, and until the result of the account, the justice of the case cannot appear. Matter of account may indeed be made the subject of an action, but an account of this sort is not a proper subject for this mode of proceeding : the old mode of proceeding upon the writ of account shews it: the only judgment was that the party “ should account," and then the account was taken by the auditor: the court never went into it.

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