E. T. 1848. " were at liberty to find the truth of the fact; and if they had done Exch. of Pleas. "so contrary to the estoppel, and found the proclamations not to "have been at consecutive Courts, or not at general Courts Baron, NOWLAN 66 according to the custom, the Court must have given judgment "without regard to the estoppel: Com. Dig. tit. Estoppel, E, 10. "But the finding of the jury is consistent in all respects with the "title of the plaintiff to recover, and therefore does not affect his "right to our judgment. The proclamations may have been at "three consecutive general Courts Baron, for nothing at variance "with that supposition is shown. We think for these reasons the "judgment on the second issue ought to be reversed, and given for "the plaintiff." This case, while it illustrates the general doctrine to which I have referred, also establishes that in an action of trespass for mesne profits, and upon the plea of the general issue, if the jury, instead of finding upon the title generally, find the matter of the estoppel, effect may be given to it by the Court in giving judgment upon the record. And if this be so, it goes to confirm, as convenient in itself and consistent with the rights which may in another form receive the same adjudication, the practice of directing or advising juries to treat, in trespass for mesne profits, where the general issue is pleaded, the judgment in ejectment as conclusive of the right from the day of the demise to the feigned lessee. It was contended that there was evidence to warrant the jury in finding for the defendant upon the plea of leave and license. This topic was not I think much pressed in argument; it appears to me that there was nothing whatever in the case to support such a finding; all the evidence negatived license to enter upon the lands. Pennefather, B. This case depends on very peculiar circumstances. The facts are these:-The defendant, being the landlord of certain premises, brings an ejectment on the title, after having served notice to quit on the present plaintiff as an overholding tenant. That appears to have been proceeded on as a notice to quit on the 25th of March 1846, for the ejectment is brought as of Easter Term 1846; defence not having been taken, judgment was marked in Trinity Term; an E. T. 1848. Exch.of Pleas. habere issued, and possession was taken of the premises. The present plaintiff brings his action of trespass to recover damages for his being so turned out. If the case rested there, I own I should have great difficulty in saying that the plaintiff in this action is entitled to recover. The pleas of the landlord are, the general issue and freehold in himself, I put aside the pleas of leave and license. If the tenant had rested his defence on the ground that the notice to quit was a notice to quit on an improper day, it would have been a good defence to the ejectment; but if the tenant, instead of at the trial insisting on that defence, takes a course which deprives him of the benefit of insisting on a defect in the notice, and allows judgment to go by default, I should be very much inclined to think that he waived all right to such objection, and ought not to be allowed, in an action of trespass against his landlord, to set up this defence which he has waived. If he thinks that he has been improperly turned out, it appears to me his course is to bring a new ejectment. But in an action of trespass against his landlord, I think that the proceedings in ejectment are conclusive to establish the fact of the landlord's title, ever since the case of Aslin v. Parker (a); and I do not think that because these proceedings had been taken by default of the party, there should be a re-investigation of the case in an action of trespass against the landlord. Therefore I should think that without resorting to the doctrine of estoppel-without looking on these proceedings in ejectment as an estoppel-but relying on this judgment in ejectment as a defence on the general issue, relying on it under the landlord's plea of freehold, the landlord's title could not be impeached in this way by an action of trespass. It was an objection resorted to by the defendant to get rid of his landlord's title, not as holding any different estate, as a lease derived from any other person, but merely a tenancy from year to year determinable by a notice to quit, and he has by his default in the proceedings concluded his right to rely on it. NOWLAN v. GIBSON. (a) 2 Burr. 665. E. T. 1848. NOWLAN v. GIBSON. But it appears that the tenant here had intended to take defence; that, by a fatality, defence was not taken in time; that judgment was marked, and immediately after, and before the next ensuing Assizes, application was made by the tenant to set aside the judgment, and for leave to take defence, and try that right, which it appears had been determined against him by his own default; he did not therefore acquiesce in that proceeding, and an order was made that he should be at liberty to take defence on payment of costs; and a subsequent order was made, giving him a writ of restitution on payment of certain costs. It does not appear that those costs were paid; but the tenant was restored to the possession of these premises. The judgment, therefore, is not to be considered or treated as a judgment in which the plaintiff here had failed, and abandoned any right which he had; I think therefore that he had a right to maintain this action. A case of this kind cannot often occur; the landlord, when he brings an ejectment on a notice to quit, would do well to consider whether he can rely on every thing which has been done, if he feels confident he can proceed; if it be a case free from all doubt, if the judgment in ejectment stands unimpeached, it does appear to me that the tenant, if he feels aggrieved at it, ought to proceed by a fresh ejectment. But, considering that the subsequent order of the Court of Queen's Bench was not reversed or set aside, it appears to me that the tenant here has established that the landlord's proceedings were improper, and that he has established his right to maintain this action; and it appears to me that the doctrine of estoppel does not apply. RICHARDS, B. It is sufficient for me to observe, after what has been said by the other Members of the Court, that I am of opinion that the defendant is not entitled to rely on the judgment in the Court of Queen's Bench as a bar to this action, under the circumstances of this case. That judgment appears to me to have been set aside by the order of Burton, J., in such a way as to disentitle him from any benefit from it, either on plea of the general issue, soil and freehold, or leave and license. LEFROY, B. If it was my duty to go into this case at full length, I could not add any thing to the judgment of my Lord CHIEF BARON, but I think the narrow ground alluded to by my Brothers PENNEFATHER and RICHARDS form ample reasons for the order of the Court. I feel that the observations which have been made on the case are such that it is unnecessary for me to go over the subject again; they abundantly show the mischief which would arise if a tenant, against whom a judgment in ejectment was standing out, should be allowed to bring an action of trespass; but in this case we are not put to decide that question any more than whether the landlord should avail himself of the objection by way of estoppel or plea of freehold I think that, by the order made by Burton, J., the judgment in ejectment is got rid of; the first order set aside the judgment on payment of costs; nothing was done to reverse that order, it stands up to this very hour. In the month of August the present plaintiff came before Burton, J., and obtained another order that a writ of restitution should issue, which order they obtained on certain terms; now here are two orders, one setting aside the judgment, the other setting aside the habere and giving a writ of restitution, and under that the parties were restored to possession of the lands; thus we have two orders of the Court of Queen's Bench standing unreversed, one by which the judgment in ejectment was set aside, the other that by which the habere was set aside and a writ of restitution ordered, and that writ was actually executed. It is said that the parties never paid the costs; that may have been a ground for coming in to remove that order, but there it stands up to the present time unreversed: I conceive then that this proceeding operated to deprive the landlord as effectually of the benefit of the judgment as if he never had obtained a judgment or never had an habere. It is impossible that a Court can treat orders as nullities in a collateral action of this description. It has been decided that where a judgment has been set aside by an order, it cannot be treated as a judgment; and on that short ground it appears to me that the plaintiff in this action is entitled to recover, and, therefore, that the verdict had for the defendant must be turned into a verdict for the plaintiffs. E. T. 1848. NOWLAN v. GIBSON. M. T. 1847. FOTTRELL v. MOORE. Nov. 18. A shareholder THIS case, which was tried before the Lord CHIEF BARON, was an in a Joint stock Bank- action upon a bill of exchange, brought by the plaintiff as public ing Company is not a com- officer of the Hibernian Banking Company. The trial was had petent witness on behalf of pursuant to an order of the Court, under the following circumthe Company in an action stances:-One Slack, being liable to the Company on foot of two instituted by their public bills of exchange, upon one of which the defendant also was liable, officer. Slack, who was an attorney, gave a plea of confession for both; the plea being more than a year old, Mr. Kiernan, the plaintiff's attorney, entered a side-bar rule for leave to proceed. Slack, who had paid £25 on foot of the bills, then, along with Moore, came before the Court upon affidavits, and stated that he had paid the £25 on account of Moore's bill; and there being a conflict of affidavits, the Court directed a trial to be had upon the bill; and accordingly there was a trial had, upon which trial the plaintiff having produced Mr. Kiernan, his attorney, to prove his case, and succeeded in obtaining a verdict against Moore Butt now moved to set aside the verdict, on the ground that Mr. Kiernan, who it appeared at the time of giving his evidence was a shareholder in the Company, was incompetent as a witness. The witness is excluded by the terms of Lord Denman's Act, being a person who had an interest individually and personally in the suit. Hearne v. Turner (a). The action is obviously brought in the immediate behalf of the witness. The action having been brought by an order of the Court does not improve the plaintiff's case. If the defendant was aware of Mr. Kiernan's incompetency it might have been his duty to have informed the Court of it; but it was a fact peculiarly within the knowledge of Mr. Kiernan himself, who was the attorney in the case. (a) 2 M. G. & Sc. 535. |