KENELLY v. H. T. 1848. rents; he bought these lands under a Sheriff's sale, whether rightExch. of Pleas. fully or wrongfully.]-He bought the elder William Fitzgerald's interest in these lands, whatever it was, but he had years before GALWAY. assigned all his interest therein to his son.-[PENNEFATHER, B. Then that would have been a very good defence for the tenants for not paying these rents.] Thomas Fitzgerald, R. Longfield and Joshua Clarke, contra. There was on the part of the defendant merely a misrepresentation of an inference of law: Newsome v. Graham (a); Moneypenny v. Bristow (b); Arris v. Stukely (c); Crosbie v. Hurley (d); 1 Bac. Ab., 6th ed., p. 260. This form of action is not correct : Atlee v. Backhouse (e); Lindon v. Hooper (f); Hills v. Street (g). PENNEFATHER, B. We are not bound to determine that a person claiming rent as a landlord, and by that false statement obtaining it, is entitled to keep that money at all events; we are not about to decide that, because we do not think that the statement of facts here affords sufficient grounds for determining that question; but we think that where a tenant pays rent to a person claiming it as rent due to him as landlord, and there is no clear statement or proof that his title is at an end, we do not think that the tenant can in this, or in truth in any form of action, recover it from the party. If a person makes an unfounded claim for rent, and distrains for it, the tenant's remedy is to replevy; but if he does not, but pays the rent for several successive gales, he, in my opinion, mistakes his remedy in bringing an action for money had and received. We are not saying what might be the effect of a bill in Equity; we are now only sitting in a Court of Law, and in our opinion the action does not lie. It is not positively stated in the statement of facts in this case that Mr. Galway's title was at an end, or that he had no title, or (a) 10 B. & C. 234. (c) 2 Mod. 263. (e) 3 M. & W. 645. (b) 2 Russ. & M. 122. (f) Cowp. 417. (g) 5 Bing. 37; S. C. 2 M. & P. 96. that any ejectment was brought against him; and we therefore think that this case fails, on various grounds of this kind, and that the money paid must be taken to be money paid to a person claiming it as rent, and not falsely claiming it as rent. But as, perhaps, the plaintiff might be able to make a better case if there was a second investigation, we are disposed to set aside the nonsuit on payment of costs; if not, the motion must be refused with costs. Ordered accordingly, that the plaintiff have a new trial, on H. T. 1848. KENELLY v. GALWAY. STERNE v. MOONEY.* In this case, which had been originally moved in Chamber Collins moved that proceedings be stayed until the original deed of which oyer was prayed be produced before the officer, in order that it might be compared with a copy: Archbishop of Canter Jan. 11. Where a party, who is entitled to do so, prays oyer, the Court will stay proceedings until the original docu ment is produced, al of a person bury v. Tubb (a). That case, which is in point, does not turn upon though it may any peculiarity of English practice. [LEFROY, B. The very form be in the hands of praying oyer is, that a party shall produce the very deed. who is not a party to the PENNEFATHER, B. This being a very unusual motion when it was made in Chamber, I directed it to stand for the Court, but not because I had entertained any doubt on the subject]. (a) 3 Bing. N. C. 789. suit. PIGOT, C. B., was absent during the greater part of this Term, being sitting along with the Lord CHIEF JUSTICE upon a Special Commission for the trial of prisoners in the counties of Clare and Limerick. H. T. 1848. STERNE บ. MOONEY. B. Stephens, contra. I feel that I cannot resist the authority of the English cases upon this motion. We have served notice upon the third party in whose hands the deed is, to produce it, but I am not in a position to move on the subject until to-morrow; there have been explanatory affidavits filed in this cause. PENNEFATHER, B. It is not a matter for affidavits; it is a matter of law. We must stay proceedings in this case until the deed is produced before the officer. NIXON v. HUDSON. Jan. 11. Assumpsit against the defendant, for neglect of duty as an at ASSUMPSIT against an attorney for neglect of his duty as such. issued out of the Court of Chancery for disobedience of an order by the plaintiff made in a cause of Nixon v. Nixon in that Court, directing the torney, where was arrested tachment for disobedience of an order of the under an at- plaintiff to pay certain costs, and also to indemnify the defendant; the plaintiff proved having paid over the amount of the costs to the Court of Chan present defendant, and that he was arrested for a breach of the cery, directing order in Chancery. There was a verdict for the plaintiff for £400 him to pay certain costs damages. and indemnify a certain party. The plaintiff proved that the costs ordered to be paid had been Napier now moved for a new trial. This action being in assumpsit, a retainer by the plaintiff should have been proved; and entrusted by him to his attorney for the purpose; that the latter had neglected to pay them, and that he was arrested for disobedience of the order in Chancery. There was a verdict for the plaintiff. Held, upon motion for a new trial, that it was not necessary for the plaintiff to negative disobedience of each branch of the order on that trial; but that the onus lay on the defendant of showing, if he could, that the plaintiff had been arrested for not having given the indemnity, and not for non-payment of the costs. it does not appear for the breach of which branch of the order the plaintiff was arrested; it might have been for the not having indemnified the defendant in the Chancery cause. The plaintiff having brought an action for neglect, which may have been either for the non-payment of the money or the not giving the indemnity ordered, he ought to have shown by reason of which breach of the order in Chancery the action is brought; he should not have left the cause of action in a state of ambiguity.-[Pennefather, B. The plaintiff shows affirmatively that the action is brought in consequence of a breach of an order in Chancery, and that there was a breach of that order.]—He ought to have shown the ground on which the attachment issued. In the first count it is merely stated that the order was for the payment of money, but it is also an order for the giving an indemnity. That is a clear variance: Wilkinson v. Mawbey (a). Where the issuing of the attachment may have resulted from a breach of one branch of the order or the other, the plaintiff ought not to cast the onus upon his adversary, but should reduce the matter to a certainty. The order in the declaration mentioned is merely an order for the payment of money; but the order produced at the trial is an order for two things, the payment of money and giving an indemnity, and the plaintiff may have been attached for non-compliance with the latter branch of the order: Vennell v. Garner (b); Hickson v. Aylward (c)-[PENNEFATHER, B. In an action of contract you are not bound to set out more than that part of it on which your cause of action arose. Is it not a correct statement to say that an attachment issued for breach of an order of the Court of Chancery, where there is a breach of one of the two things ordered to be done? if there is a breach of either of those things is it not enough? there is clearly shown to be a breach of the order which entitled the opposite party to issue an attachment. It would, therefore, seem to me that it throws the onus on you to show for what else the attachment issued; if the order, which was not produced (the order for the issuing the attachment), would have H. T. 1848. NIXON บ. HUDSON. (a) 1 Camp. 297. (b) 1 Cr. & M. 21. (c) 1 Hog. 251. NIXON บ. HUDSON. H. T. 1848. helped you, could you not have given it in evidence? The breach Exch. of Pleas. of one part of the order would prima facie entitle the plaintiff to bring his action, and it lies on you to disprove the existence of that cause of action.-LEFROY, B. A party is not bound to set out the order in hæc verba, but to set out the tenor of it.]-It is conceded that the plaintiff was bound to give some evidence that the attachment issued, because the money was not paid; was then the production of an order directing another thing also to be done sufficient evidence that the order for the attachment was issued for the non-payment of the money?-[PENNEFATHER, B. I think it was prima facie evidence.]—The plaintiff ought to give the best evidence in his power. [PENNEFATHER, B. That is not ground of nonsuit.] The plaintiff's Counsel were not called on to sustain their verdict. PENNEFATHER, B. The Court think that this motion ought to be refused with costs. RICHARDS, B. Here is an order manifestly requiring two certain things to be done, one of which is to pay a certain sum of money. There is evidence that the plaintiff gave to his attorney that sum of money, which he put into his pocket and did not go down to Court and pay. I think then that it would be too much to infer that the attachment did not go because of the non-lodgment of the money. I apprehend that it lay upon the defendant to show that it did not go for that reason. I think there was abundant evidence to go to the jury, and therefore that the motion must be refused with costs. LEFROY, B. I concur in the order which has been pronounced by the Court. |