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1804.

ANDERSON

V. DWYER.

the payment; and it is said there that interest shall be decreed upon an annuity if charged upon real estate (as here) and in arrear, or if secured by a penalty to enforce the payment out of personal estate. In Stapleton v. Conway, 1 Ves. 427, the Lord CHANCELLOR says there had been cases where interest on the arrears of an annuity had been given; especie ally to a jointress for a long and obstinate delay of payment, and frequent demand of money; a rule which is strongly applicable to the circumstances of this case.

2. It must be admitted that annuities are not within the provisions of the statute which apportions rents reserved on leases made by tenants for life: but an annuity given for maintenance of children is apportionable. Hay. v. Palmer, 2 P. Wms. 501 ; Edwards v. Lady Warwick, ibid. 176. And in Howell v. Hamforth, 2 Bl. 1,016, where there was an annuity to a feme covert to her separate use, DE Grey, Chief Justice, said “ Though rents and com

mon annuities are not apportionable either by law or equity, yet in equity the maintenance of infants is always ap

portioned up to the day of their deaths, &c. this case de “pends on similar principles, being for the separate maintenance of

a feme covert.

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; Lord CHANCELLOR.

That must have been a case where the husband made a separate provision for the wife, which is quite different from an annuity left to the separate use of the wife who is living with and maintained by her husband: besides, in that case the annuity was secured by bond. As to the other point: the cases cited have been all discussed in the court of Chancery in England, and the result has been to refuse interest except under very particular circumstances, and though

1803,

ANDERSON

it seemed to be the justice of these cases to give interest, it has been found the wisest way not to do so, as the principle might be extended so far as to be highly mischievous and tend to create litigation in every case, and to encourage creditors to delay the prosecution of their suit.(a)

Dwyer.

Reg. Lib. xlix. 345.

(a) See Creuze v. Hunter, 2 Ves.jun 157, and 4 Bro.C. C. 316, S. C. and the cases there cited by the Lord CHANCELLOR.

GENERAL RULE.

Feb. 13.

THE RIGHT HONOURABLE THE LORD HIGH On demurrer to the whole CHANCELLOR OF IRELAND is this day pleased to bill being al. lowed, the bill order, that in future, in all cases where a demurrer to the shall be dismis- whole of plaintiff's bill shall be allowed, the bill shall be shall be taxed dismissed; and the order for taxing the costs on the allowas upon a dis. ing the demurrer, shall direct the costs of the defendang the costs on the to be taxed and paid as upon dismissing of a bill, except demurrer, which shall be the costs of arguing the demurrer, for which the defendant allowed as shall be allowed only the costs heretofore paid upon the alheretofore.

lowing of a demurrer.

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1804.

O'CONNOR v. SPAIGHT.

va

Feb. 21, 23. THE 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 208. per acre for every acre the demised rious dealings

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

so as to produce plaintiff entered into possession ; the number of acres was not

an account too ascertained, nor did plaintiff appear to have made any regu- complicated to lar payments of rent eo nomine, nor had defendant given and the landhim 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 of

rent, the tenant his order, of selling him goods on credit, and supplying him may file a bill, and his family with money, the particulars of which several ment at law, 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 balance applica 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 due. And the forth the particulars of the various dealings between the tenant need not 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 216l. 88. due to him for rent above all just allowances.

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 seven ral different times...Amer. Ed. VOL. I.

RE

V.

1804. denying the facts as to some, and alleging that as to others O'CONNOR there were double charges; and insisted that so far from SPAIGHT.

there being a balance due to plaintiff, a sum of 216l. (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 statute of frauds.

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

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 the Lord CHANCELLOR said that it was not the practice in bill, in order 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, and possession where there were no accompanying circumstances, and changed pend. ing the cause.

(c) See 11 Ann. c. 2, s. 4.

1804.

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

O'CONNOR

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 ejectment 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 landlord 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 rent

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