1 H. T. 1848. VAUGHAN v. M'CARTHY. SCIRE FACIAS brought against the heir and terre-tenants of one Jan. 14. A memoran dum of agreement between F. A. A. and P. V. recited that F. A. A. would grant, and P.V.would accept, a lease of twenty acres G., at the rent acre, “which allowed to the rent is to be ment, bearing date the 22nd of October 1822, and hereinafter mentioned, which was offered in evidence by the plaintiff, was of the lands of inadmissible as not being on a proper stamp. The learned Judge of 21. 89. an however having allowed the agreement to be given in evidence, and there being a verdict for the plaintiff, the case now came before the Court upon a bill of exceptions to his Lordship's direction, upon the following ground, amongst others which it is unnecessary to specify. said P. V. yearly for and during six years from the 25th of March last, in lieu and discharge £192, amount missory notes, The agreement, which only bore a £1 stamp, was in the following of the sum of terms:-" Memorandum of an agreement made this day between of two pro"Francis A. Allen, Esq., of Gurteenroe, and Patrick Vaughan, jun., "of Hardingrove, in the county of Limerick, farmer, witnesseth "that the said Francis A. Allen will, when required, grant a lease, "and the the said Patrick Vaughan will, when required, accept of a "lease of all that and those twenty acres plantation and two roods of "part of the lands of Gurteenroe, now and for some time past in the "possession of the said Patrick Vaughan, at the yearly acreable rent "of £1. 8s. sterling, which rent is to be allowed to the said Patrick "Vaughan yearly for and during six years from the 25th of March six years, the said rent to be allowed to said P. V. yearly in lieu of the sum of £224 sterling, amount of a bond passed by said F. A. A. and W. A. to said P. V., un til the amount will be paid, with legal interest and all costs attending law proceedings already incurred, provided the said F. A. A.'s title should hold so long in said lands; and if the said F. A. A.'s title should last longer, P. V. is to get the term of twenty-one years from March last, or the natural life of the said W. A., whichever should hold the longest, and pay the aforesaid yearly acreable rent, after being paid the amount of said notes and bond and all costs and interest by the aforesaid yearly rent as men. tioned already, and to be allowed; and then after the same being paid, the said acreable rent to be paid by two equal payments in the year on every 25th day of March and 29th day of September in each year during the term." This agreement, which only bore a one pound stamp, was admitted in evidence upon the trial of a scire facias, brought by P. V. against the heir and terre-tenants of W. A. Upon a bill of exceptions on the ground of its reception, the Court held that it ought to have borne both an agreement and a mortgage stamp, and granted a venire de novo. M'CARTHY. H. T. 1848. "last, in lieu and discharge of the sum of £192, the amount of two Exch. of Pleas. "promissory notes now due to the said Patrick Vaughan, and passed VAUGHAN "by said Francis Allen and Allen M'Carthy to Patrick Vaughan, V. sen., deceased; and after the expiration of said six years the said "rent to be allowed said Patrick Vaughan yearly in lieu of the sum "of £244 sterling, amount of a bond passed by said Francis A. "Allen and William Allen to said Patrick Vaughan, until the "amount will be paid, with legal interest, and all costs attending "law proceedings already incurred, provided that the said Francis A. "Allen's own title should hold so long in said lands; and if the said "Francis A. Allen's title should last longer, Patrick Vaughan is to "get the term of twenty-one years from the 25th of March last, or "the natural life of said William Allen, whichever should hold the "longest, and pay the aforesaid yearly acreable rent, after being paid "the amount of said notes and bond and all costs and interest by the "aforesaid yearly rent as mentioned already, and to be allowed; "and then after the same being paid, the said acreable rent to be "paid by two equal payments in the year, on every 25th day of "March and 29th day of September in each year during the term. "Dated this 2nd day of October 1822. "G. MATHEWS. FRANCIS A. ALLEN. PATRICK VAUGHAN." Thomas Jones, in support of the exceptions. The agreement produced ought to have had both an agreement and a mortgage stamp. It contains both an agreement for a lease and also an agreement for the appropriation of the rent. The stipulation in this instrument operates as a charge upon the lands. Mahon v. Davoren (a) is distinguishable from the present case : Wrench v. Lord (b). Clanchy, with whom was D. R. Kane, contra. Mahon v. Davoren was reviewed in Warrens v. O'Shea (c), and approved of by the Court, and subsequently confirmed by the Court of Error.-[PENNEFATHER, B. It is an agreement for a lease, and (6) 3 Bing, N. C. 672. (a) 2 Hud. & Bro. 523. (c) 5 Law Rec. N. S. 77.. H. T. 1848. VAUGHAN v. also for something else, viz., the liquidation of a debt, and that is very like a mortgage.]—The defendant here has got a lease, and could not be compelled to give it up before the expiration of the term, and therefore it is not redeemable as a mortgage, and there M'CARTHY. is no deposit of title deeds.-[PENNEFATHER, B. Is it not a security for a debt?]-The plaintiff sent the deed to the Stamp-office and paid a heavy penalty to have it stamped, and at the Stampoffice they did not think it required an additional stamp, which circumstance ought to weigh with this Court.-[LEFROY, B. Suppose the landlord sold this estate, could the purchaser enforce the rent until the debt was paid? And then, if he could not, surely it would be a security for the debt.-PENNEFATHER, B. It was, in fact, a pledging of the lands.]—The Legislature only contemplated agreements with a deposit of title deeds. The paramount intention of the parties is an agreement for a lease, and either as a lease or an agreement there is one sufficient stamp. The mere authorising the tenant to apply the rents in a particular way does not render an additional stamp necessary. J. D. Fitzgerald, in reply, cited Cordner v. Drakeford (a); Lessee Booth v. M'Gowan (b); Lessee Murphy v. Conolly (c). PENNEFATHER, B. We are very clearly of opinion, that this question upon the Stamp Act must be ruled in favour of the defendant, and therefore that the exceptions must be allowed, and a venire de novo issue. Venire de novo.* (a) 3 Taunt. 382. (b) 4 Ir. Law Rep. 188. (c) 6 Ir. Law Rep. 116; see Kelly v. Kelly (6 Law Rec. N. S. 222). • PIGOT, C. B., was sitting at a Special Commission for the counties of Clare and Limerick, and RICHARDS, B., was sitting in Chancery as one of the Commissioners appointed to hear causes, in consequence of the illness of the LORD CHANCELLOR. H. T. 1848. KENNEDY v. WHALEY. Jan. 15. To a scire facias upon a judgment recovered in SCIRE FACIAS upon a judgment obtained in 1823. Pleas, payment and the Statute of Limitations. Replication to the latter, that the judgment was a judgment entered upon a bond payable at the death of one J. W., which had occurred within twenty years. Special demurrer to this replication, on the ground, amongst The plaintiff other objections, that it was an argumentative traverse of the plea. 1823, the defendant pleaded, amongst other pleas, the Statute of Limitations replied, speci ally traversing this plea, alleg ing that the David Lynch (with whom was J. D. Fitzgerald), in support of judgment was the demurrer. a judgment entered on a bond condi the amount within six months after the death of one J. W., Although there has been in this case a collateral agreement, it is tioned for the not the proper construction of the statute to hold that a present payment of right to receive the sum payable means a right to receive in conformity with an agreement entered into, perhaps by parol, controlling the judgment. The Statute of Limitations makes the proviso, that which bad occurred within nothing in it shall operate to take out of the bar of the statute a twenty years judgment barred by the 8 G. 1. The 7 W. 3, cc. 10 and 11 (the Irish Statute of Frauds), the 10 G. 3, c. 7, and all that class of statutes down to the 9 G. 4, c. 35, show that the operative period of every of the suing out of the scire facias, and concluding with a verifi. cation. Held, upon demur. judgment is the time of its recovery; and the entry of the judgment rer, that the is the terminus a quo the statute is to be considered to operate. replication both dis. This replication besides is faulty in the mode of stating the traverse; closed a good answer to the the plea is that the judgment is on a bond appearing to give a right to plea, and recover in præsenti, and that within twenty years a present right to needed not to conclude to the country. receive accrued to the plaintiff. The replication states that the condition of the writing obligatory was, that the defendant should pay the amount within six months after the death of John Whaley. Now, if there be a traverse of a present right to receive the money within twenty years, and if the meaning of the statute be not the accruing of a present right to receive according to the judgment, but accord ing to the judgment controlled by the agreement, would not the facts set out be the evidence to support their pleading? The pleading is neither a traverse nor a plea in confession and avoidance; it is an argumentative denial, which is ground of special demurrer. This replication is like the inducement to a traverse absque hoc ; they ought to have concluded to the country, and not with a verification. The replication is bad, for it either pleads matter not alleged, or else it pleads matter in the inducement of the pleading which would be evidence in support of the pleading. Besides, though it has not been stated as ground of demurrer, it is open to this objection, that they have not stated in their pleading that Whaley is six months dead; in which case they have come too soon. John Pennefather and Napier, in support of the replication. The first objection is, that this is an averment against the record; the first plea is a plea of the Statute of Limitations; the second plea is a plea of payment; the third is so framed that we could not join issue on it; it goes behind the judgment, if it is going behind it, which we deny, to state matters in defeasance of the judgment: Fortescue v. M'Kone (a). A want of averment of the accruing of a present right to receive, was held bad on demurrer. The plea is also bad in this case: Roakes v. Mansergh (b).—[Pennefather, B. The objections in this case are, that you have wrongly taken a traverse to what is not alleged in the plea; and that if you are right in taking the traverse, you ought to have concluded to the country, and not with a verification.]—Roakes v. Mansergh is an authority in favour of the traverse we have taken, which is a sufficiently formal one: Com. Dig. tit. Pleader, S, p. 446; and ought not necessarily to conclude to the country, though it might have done so. As to the objection that the defeasance of this judgment ought to have been set out on the scire facias; if it had, the plaintiff would have been met by a plea of nul tiel record, which could not have been got over. There is no departure in this pleading, for this is (a) 1 J. & S. 341. (b) 1 Com. B. Rep. 531. H. T. 1848. KENNEDY v. WHALEY. |