2 Fur. L. & T., p. 1140, is nowhere reported, and cannot be considered an authority. In Jack d. Thompson v. Home (a), and Lessee of Warren v. Martin (b), the Judges expressly avoided deciding this question. The word lease is not exclusively applied to an instrument in writing: Timmins v. Rowlinson (c). In the first section of the Statute of Frauds, it is used by the Legislature in reference to a parol letting; and although the remedy of ejectment for non-payment of rent on a "parol demise" is expressly given in the Civil-bill Court, by the 14 & 15 Vic., c. 57, s. 73, yet it was held that the same remedy existed under the former Civil-bill Act, 6 & 7 W. 4, c. 75, s. 2, in which the words used are "lands, "tenements or hereditaments, held under any grant, lease or other "instrument:" Charters v. Gilroy (d); Young v. M'Nally (e);

v. Young (f). Lastly, on the form of the exceptions, the plaintiffs are entitled to keep the verdict.

E. Sullivan, in reply.

The exceptions are correctly taken. Then, as to the second point made on the other side; if the declaration in covenant in 1852 is to be conclusive evidence, J. Warren must be taken to have been assignee of the lease of 1782; and if so, the ejectment in 1850 was duly served, and the present plaintiffs have no title upon which to recover in the present action. As to the point of enlargement, 4 Bac. Abr., tit., Leases 9, s. 2. The statute 5 G. 2, c. 4 (Ir.), s. 4, applies only where a subsisting interest is surrendered, for the purpose of a renewal: Lessee Clanmorris v. Bourke (g).[LEFROY, C. J. We wish you to confine your reply to the point whether this ejectment is maintainable under the Ejectment Statutes?]-The tenancy upon which this ejectment is brought is not under any writing within the Ejectment Statutes. Putting the case most favourably for the plaintiffs, the tenancy of the defendants

(a) 1 Jebb & Sy. 424; S. C., 1 Ir. Law Rep. 179.

(b) 2 Jebb & Sy. 424; S. C., 3 Ir. Law Rep. 79.

(c) 3 Burr. 1603.

(e) 2 C. & D., C. C., 34.

(d) 1 Cr. & D., C. C., 454.

(f) Ir. Cir. Rep. 59.

M. T. 1858.
Queen's Bench.

FOOT

v.

WARREN.

(g) 13 Ir. Law Rep. 305.

FOOT

ข.

WARREN.

M. T. 1858. arises by the payment of rent since the fall, in 1837, of the last life Queen's Bench. in the renewal of 1794. When a lease expires, or is determined at law, if the tenant holds over and pays rent as before, and such rent is accepted, a new tenancy is thereby created; but the contract rests only in parol, although the law imports into the new contract the same terms and conditions as were contained in the lease, as far as they are applicable to the yearly tenancy, which tenancy is thus held on the terms of, and not under, the expired lease. Such a tenancy is a conclusion of law, arising from the payment of rent, and not a continuance of the lease: Finch v. Miller (a); Hyatt v. Griffiths (b). If the yearly tenancy were under the lease, covenant would be the form of action to recover the rent; but that is not so assumpsit, which does not lie on an instrument under seal, is the proper form of action in such case: Digby v. Atkinson (c). This point is concluded by authority. The 1 G. 4, c. 87, requires that, in ejectment, a tenant in possession, holding under a lease or agreement in writing, which has expired or been determined by notice to quit, shall enter into a recognizance to pay the costs and damages; and both in England and Ireland it has been held that a yearly tenancy, created by holding over and paying rent, after the expiration of a lease, is a tenancy by parol, and not within the statute: Doe d. Thomas v. Field (d); Loveland d. Roberts v. Thurstout (e). In the latter case, Smith, B., says :— "The landlord, after the expiration of the lease, has his election "to treat the former tenant either as a tenant or a trespasser. If "he treat him as a tenant, then they stand under that relation upon "the substituted contract, which is not a contract of the nature "of those to which the Act applies "(f). The covenant for perpetual renewal in a lease, the lives in which have dropped, is not sufficient to maintain ejectment for non-payment of rent: Shenton v. Corbally (g). Ejectment for non-payment of rent cannot be maintained on a yearly tenancy not created by writing. The sole

FOOT

ข.

WARREN.

contention in Lessee of Warner v. Martin (a) was whether, if M. T. 1858.
Queen's Bench.
the yearly tenancy were created by writing, the ejectment would
lie; it was conceded at the Bar that if there were no writing the
action could not be maintained; and that is the opinion of the Profes-
sion: Furl. L. & T., p. 1139, ss. 68, 69; Nap. Dig., p. 149; Shenton
v. Corbally (b). Express provision has been made for such eject-
ment, in cases within the Civil-bill jurisdiction, by the 14 & 15
Vic., c. 57, s. 73, where a tenant holds under "lease, &c., in
"writing, or by parol demise, or under a tenancy from year to
"year;" but there is no such provision in the Ejectment Statutes.
Next, upon the construction of the Ejectment Statutes, it is clear
that this action cannot be maintained, unless there be a writing.
There is but one statute in England, the Common Law Procedure
Act (15 & 16 Vic., c. 76); in Ireland there are seven statutes. It
is therefore impossible to argue this case on the English Act; and,
even if Thomas v. Packer (c) were decided under that Act, which
is not clear, that decision cannot govern the present case. The
8 G. 1, c. 2 (Ir.), which was passed "to explain and amend" the
11 Anne and the 4 G. 1, c. 5 (Ir.), enacts (section 1) that if one
year's rent is due "to any landlord or lessor," he may eject for
non-payment of the rent. The other side say that the statute dis-
tinguishes between landlord and lessor; but it provides that if
defence is taken, the plaintiff shall prove at the trial "the counterpart
'of the lease by which such rent is reserved, and that such landlord
"or lessor, or those under whom he derives," have been in posses-
sion for three years. The Legislature here interpret landlord or
lessor to be a person who has granted a lease, reserving the rent
which is so in arrear, and of which lease there is a counterpart.
Then the 5 G. 2, c. 4, which was passed "for further explaining
and amending" the previous statutes, provides (section 3) for cases
where "the counterpart of the lease by which such rent is reserved"
cannot be produced, and enables the plaintiff to rely on
"the origi-
"nal lease, minute or contract, or a copy thereof, or a copy of such
"counterpart." All the Ejectment Statutes are to be construed as one

(a) 2 Jebb & Sy. 424; S. C., 3 Ir. Law Rep. 79.
(c) Supra.

(b) Supra.

M. T. 1858. code, being in pari materia: Lessee of Black v. Davis (a); and in Queen's Bench them all lease means a letting by writing, and landlord or lessor the person entitled to the reversion on such lease.

FOOT

v.

WARREN.

LEFROY, C. J.

The whole of this case comes to the last point. The argument which was addressed to us upon the doctrine of enlargement has been disposed of by the Court during the progress of the argument; and the only remaining point upon which there can be any reasonable doubt or hesitation is the last point, namely, what is the effect of the new relation existing between the parties? This, it is now clear, has resulted only in an implied tenancy from year to year; and we are all perfectly satisfied that, upon such a tenancy as that, an ejectment for non-payment of rent cannot be maintained. It is quite impossible for me to add anything to the argument which has been addressed to us by Mr. Sullivan upon that point. It is manifest, upon the terms of the statutes themselves, that the present ejectment cannot be maintained. I can only add that I fully concur in Mr. Sullivan's observations upon the Ejectment Statutes.

PERRIN, J., concurred.

O'BRIEN, J.

Mr. Sullivan's argument has removed the doubt which I entertained as to the effect of the payment of rent for such a series of years under the lease of 1782; his argument has also disposed of the case of Thomas v. Packer. The Irish Ejectment Statutes contain in their very terms a legislative declaration that ejectment for non-payment of rent cannot be maintained against a tenant holding from year to year by parol. There is a clear distinction between holding under and holding on the terms of an expired lease; the latter is not holding under a writing, within the meaning of the Ejectment Statutes.

Exceptions allowed, and venire de novo awarded.

(a) Batty, 80.

E. T. 1859.
T. T. 1859.
Exch. Cham.

Exchequer Chamber.

A suggestion of error in the above record and proceedings, alleged by the plaintiffs, and denied by the defendants, having been duly entered (a), the cause now came on to be heard before the Court of Error.*

Chatterton and Jellett, for the plaintiffs.

Serjeant Deasy and H. J. Leslie (with them E. Sullivan), for the defendants.

Serjeant Deasy replied.

April 30. May 2, 3, 28.

Cur. ad. vult.

FITZGERALD, B.

This was a statutable ejectment for non-payment of rent, tried before Mr. Baron GREENE, at the Cork Assizes of Spring 1858. There was a verdict for the plaintiff, under the direction of the learned Judge. A bill of exceptions was taken to that direction by the defendant O'Callaghan; and the case comes before this Court on that bill of exceptions, and the judgment of the Court of Queen's Bench, in which the record was, allowing the exceptions and awarding a venire de novo. By the plaint, Foot and another plaintiff, since deceased, complained that certain defendants therein named held that part of the lands of Gegannah formerly in the possession of one William Withers, as tenants to the plaintiffs, by lease, at the yearly rent of £184. 12s. 4d.; and that the rent for eight years, ending in March 1857, was due to the plaintiffs, who thereupon claimed possession of the lands. Defence was taken by O'Callaghan and others, to the effect that the lands mentioned in the plaint were

(a) Com. Law Proc. Act 1853, ss. 173–176.

May 28.

* Coram MONAHAN, C. J., PIGOT, C. B., KEOGH and CHRISTIAN, JJ., RICHARDS, GREENE and FITZGERALD, BB.