EJECTMENT AND REPLEVIN BILL.— (Hansard, 24 January 1840)

§ Mr. Emerson Tennent

moved for leave to introduce a Bill for the purpose of remedying a defect in the existing law relative to ejectment and replevin, which, though an inconvenience and a grievance in England, was, from the nature of the tenures peculiar to Ireland, a most serious obstacle to the course of justice in that country. The case was this, the ejectment and replevin statutes professed in their own provisions to be designed for the benefit of those alone between whom there subsisted the relationship of landlord and tenant; and, in order to constitute that relationship, it was indispensable that the lessor should have in himself a reversion of the lands on the extinction of the term demised to the lessee. He was anxious to avoid technicalities in the matter. If the landlord demised to the tenant the entire estate or interest which he himself held— if he gave him his lands for the same lives or the same number of years for which he held them himself—then the instrument became, not a lease or an under-lease, but an assignment in law; whilst, on the other hand, if he reserved to himself one day, one hour, or one minute, beyond the term enjoyed by his tenant it became a lease, and the relationship of landlord and tenant was created by it. In the latter case the landlord would be able, for the recovery of his lands, or of his rent, in case of its nonpayment, to avail himself of the short and simple process provided by the replevin and ejectment statutes, whilst in the other case he could have no remedy except by action for breach of covenant, or by bring- 563 ing an ejectment at common law, a process full of technical difficulties, and, owing to its antiquated and critical requirements, seldom or ever satisfactory or successful. In Ireland this hardship had been felt to be very formidable, owing to the almost universal tenure in that country of "lives renewable for ever," by which one-sixth at least of all the lands in Ireland were held at this moment; and as the prevailing practice was for an under tenant to take the same lives in his lease as those by which the lessor held, in order, as at first sight it would seem, to avoid confusion and trouble, the law as now settled, would deprive such lessors of their simple remedy, by ejectment and distress, for recovery of rent, and they were driven to the antiquated processes of law which these statutes were meant to supersede. It was clear that this was one result never designed by the framers of the ejectment code; and that it was an anomaly which it was the duty of the Legislature to remove. The matter had lately attracted much attention in Ireland, owing to the conflicting decisions of the Judges upon the point. In one case, that of "Pluck v. Digges," in replevin, in the year 1828, seven of the Judges, upon argument in error, decided against three that the statute did extend even to cases in which no reversion was reserved. But this decision was overruled by a decision of the House of Lords in 1830 or 1831, who ruled, with the minority of the Irish bench, that the case was not within the statute. Immediately upon this result a second case was tried— that of a tenant in the county of Fermanagh, who had been ejected fifteen years before under a similar tenure, and now brought a cross ejectment to recover back possession, on the ground that his landlord had demised to him for the same lives as those in his own lease; and in 1833 the King's Bench in Ireland held that there was no substantial distinction between the case of a replevin and an ejectment for non-payment of rent, with reference to the necessity for a revision to constitute the relation of landlord and tenant, and decided against the landlord, in conformity with the precedent in Pluck and Digges. But a third case arose two years after in that of Ferly and Welsh, a case of ejectment, in which the Court of Exchequer departed from the decision of the Court of King's Bench, and 564 conceived that the case of replevin decided by the Lords did not govern that of ejectment, and ruled accordingly for the plaintiff. So that the practical result from all this was, that at the present moment a landlord, under such circumstances was helpless in replevin, and had but a doubtful remedy in ejectment, inasmuch as the Exchequer had differed from the King's Bench upon the point. The object of the Bill he asked leave to introduce was to set this matter at rest, by giving to the party without the reversion the same protection and remedy as was now conferred by the statute on him who had the reversion—a remedy which was now withheld from him merely by an unimportant technicality.