Common Pleas. THE IRISH H. T. 1865. These slob lands are of great extent, and the plaintiff could not possibly ascertain what portions the defendant did not get possession of. In Roberts v. Snell (a), which was an action of replevin against the assignee of the reversion of part of the demised premises, the assignee knew what he had got by his deed, and therefore it lay upon him to set out the facts specially. v. TYRRELL. If the plaint be good, the defence is bad in point of form; for it professes to answer the whole of the plaintiff's claim. The averment is, that the said "rent is not due or in arrear, or any part of it." It is well settled that if a plea profess to answer the whole cause of action, and be only an answer to part, it is bad on demurrer. In 1 Williams' Saunders, p. 286 (n.), it is said :—“If a plea begin "with an answer to the whole defence, but in truth the matter "pleaded is only an answer to part, the whole plea is bad and "the plaintiff may demur." And for that he cites Putney v. Swan (b). Upon the construction of the lease, they cited Houston v. Barry (c); Palmer v. Faussett (d); Arundel v. Arundel (e); The Attorney-General v. Drummond (f); Shepherd's Touchstone by Preston, p. 87; Hegarty v. Nally (g). Dowse, in reply. If this were nothing but a plea of nil habuit in tenementis, it is admitted it would be bad; but, when that plea is joined to an allegation of facts which show that the defendants never got into possession of the demised premises, it is a good defence. Though nil habuit in tenementis by itself may be a bad plea, yet it may be part of a very good plea. In Taylor v. Zamira (h), which was an action of replevin, to the avowry of the defendant the plaintiff pleaded a special plea, which it was contended was bad, as amounting to a plea of nil habuit in tenementis. And Gibbs, C. J., says: None of this Court have the least doubt on the point (a) 1 M. & Gr. 577. (c) 5 Ir. Eq. Rep. 294. (e) 1 M. & K. 316. (b) 2 M. & W. 73. (f) 1 Dr. & W. 353. (g) 13 Ir. Com. Law Rep. 532. (h) 6 Taunt. 524. "on which the plaintiff's Counsel very properly rested his argu- H. T. 1865. "ment that nil habuit in tenementis is in no case an answer to 66 an avowry for rent, or to an action of covenant for rent; but "he was mistaken in the corollary he wished to raise from that "proposition. In every plea of eviction there is an averment that "the lessor had not a perfect title when he demised; but that fact "alone would not suffice to constitute a plea, to it must be added "the fact that the lessee was in consequence evicted. The whole "is a defence. The plaintiff's Counsel argues that, because nil “habuit in tenementis alone is not a defence, therefore it cannot "be a part of any other defence." In Taylor on Evidence, p. 108, it is said:"In regard to "estoppels by deed, a party is not prevented from disputing the "correctness of that which is not an essential averment, but is mere "description; such, for instance, as the date of the deed, the "quantity of land," &c. And for that he cites Skipworth v. Green (a), where it was held that, where, in a demise of a close, the close was described as containing five hundred acres, the party was not estopped from showing that it contained less. In Cuthbertson v. Irving (b) Martin, B., puts estoppel between landlord and tenant on the true grounds. At page 758 he says:-"This state "of law in reality tends to maintain right and justice; and the "enforcement of the contracts which men enter into with each other "(one of the great objects of all law); for so long as a lessee enjoys "everything which his lease purports to grant, how does it concern "him what the title of the lessor, or the heir or assignee of his lessor, really is? All that is required of him is that, having "received the full consideration for the contract he has entered into, "he should on his part perform it." 66 In Hayne v. Maltby (c) the estoppel between landlord and tenant was pressed into the case by way of illustration; and on that point Ashurst, J., says: "This is not like the case of landlord and 66 tenant; as long as the latter enjoys the estate, he shall not be "permitted to deny his landlord's title, for he has a meritorious (b) 4 H. & N. 472. (a) 8 Mod. 311. (c) 3 T. R. 438. VOL. 16. 34 L Common Pleas. THE IRISH SOCIETY v. TYRRELL. Common Pleas. THE IRISH SOCIETY v. H. T. 1865. "consideration; but when he is expelled by a person having a "superior title, he may plead it." These cases put the estoppel between landlord and tenant on the true ground. It is the meritorious consideration arising from the enjoyment of the land that creates the estoppel, and that, independently of the indenture altogether; but, where there is no possession and no enjoyment, there can be no estoppel. He cited on this point Palmer v. Ekins (a); Bacon's Abridgment, Leases, O, p. 854, 7th ed. TYRRELL. But whether the privity of contract arising from the execution of the indenture would estop the lessees from pleading this defence, there can be no estoppel as against the assignee. With respect to the latter, the estoppel is founded on privity of estate, and can only be co-extensive with the estate which passed. No doubt estoppels run with the land; but where nothing passes to the assignees, there is no land for the estoppel to run with. As to the portion of the demised premises which the defendant got possession of, an estoppel may exist; but quoad the part he did not get possession of, there is no estoppel. If then the estoppel be got rid of, the case comes within the authority of Neale v. M'Kenzie, and the defence is good. It has been attempted to distinguish that case from the present, on the grounds; first, that in Neale v. M'Kenzie the second lease was by parol, while here it was by indenture; and, secondly, that the actions in the two cases were different; but in principle the cases are undistinguishable. There, as here, the defendant relied on an original defect in the lease-a total failure of the grant as to part; which, it was contended by the plaintiff, and so held in the Court below, was equivalent to an eviction by title paramount. That decision was reversed in the Court of Exchequer Chamber; and it was there held that the case did not amount to an eviction by title paramount, and that the rent was suspended. But assuming that the facts pleaded in the defence amount to an eviction by title paramount, and that the rent is apportionable, the plea is equally good; for it shows that the plaintiffs cannot maintain this action. Under the ejectment statutes, an ejectment (a) 2 Lord Ray. 1550. could not be brought for an unascertained rent; so that where lands were leased at a bulk rent, and the tenant was evicted out of part by title paramount, the landlord could not maintain an ejectment; and the reason was, that if the tenant did not take defence, the landlord, before obtaining judgment, was obliged to make an affidavit as to the amount of rent due: Lessee of Swift v. Allanson (a). That provision of the ejectment statutes has been re-enacted by the 58th section of the Landlord and Tenant Act. The plaintiffs have mistaken their course; they should, in the first place, have ascertained the rent in some other form of action, and then have brought an ejectment for the apportioned rent; but they cannot bring an ejectment until the rent is ascertained. The 44th section of the Landlord and Tenant Act does not help the plaintiffs; this is neither a case of "surrender," "resumption," or "eviction," but of an original defect in the lease; and is a casus omissus in the Act. But even if the case came within the 44th section, the landlord cannot avail himself of it until he has, in the first place, had the rent apportioned in some other form of action; and when he has done so, he may then bring an ejectment. Again, the plaint is bad on other grounds. By the third section of the Landlord and Tenant Act, the relation of landlord and tenant is to be deemed to be founded on contract. Here the contract is totally mis-stated; the tenancy is not that stated in the plaint at all, but a wholly different one. If the plaint had described the premises as having been demised by the lease, it might not be open to the objection; but here the description is of the present tenancy. He cited Doe d. Higginbotham v. Barton (b); Wentworth on Pleading, 5th vol., p. 88; 1 Lilly on Pleading, p. 142; Farquhar v. Kelly (c); Walsh v. Trevanion (d). On this day the Court delivered judgment. CHRISTIAN, J. H. T. 1865. THE IRISH SOCIETY ທ. TYRRELL. Cur, adv. vult. E. T. 1865. The tenancy This was an ejectment for non-payment of rent. (a) Batty's Rep. 326. (c) 4 Ir. Com. Law Rep. 490. (b) 11 Ad. & Ell. 307. (d) 15 Q. B. 733. THE IRISH E. T. 1865. was described in the plaint as being of all the waste lands, &c., Common Pleas. comprised in a certain agreement of 21st of May 1838, at the yearly rent of £800. And because one year and a-half of that rent was (it was alleged) in arrear, possession was claimed of the whole of the premises so stated to be the subject of the tenancy. SOCIETY v. TYRRELL. To this the defendant, an assignee of the lessee, pleaded, that the rent, or any part of it, was not in arrear; because, he said (in substance) that, as to a certain portion of the premises professed to be demised, the plaintiffs (the lessors) before and at the time of the making the lease, had nothing, and the lessee got nothing, either of title or possession; inasmuch as that portion was the estate in fee-simple of certain other persons, who were then in possession and who kept their possession; that thus, as to a part of the premises out of which the whole rent was professed to be reserved, the lease was from the first without any subject to operate on. To this plea a replication was filed, which is to this effectthat the lease was a lease by indenture, executed under seal by lessor and lessee, and that the defendant, as assignee of the lessee, should be held to be thereby estopped from averring the facts stated in the plea. To this replication the defendant demurred. The first point which must be determined is of course that which is raised by the demurrer; for unless we hold the replication to be bad, none of the other questions which were argued can have any existence. Is, then, the defendant, as assignee of the lessees, estopped to plead the defence set up in the plea? Before we can determine this, it is obvious that we must first have a clear apprehension of what the facts really are which are averred in the plea; a thing not only essential for the determination of the demurrer, but equally so for the determination of the questions which would arise on the plea itself, in the event of our judgment being adverse to the replication.[His Lordship here read the defence.] The purpose with which I have thus dwelt on the language of the plea is this: to fix attention on the fact that there is no averment that any act whatever was done either by the lessees or |