PARTICULARLY OF POINTS OF PRACTICE ARGUED AND DETERMINED IN THE COURTS OF QUEEN'S BENCH COMMON PLEAS AND EXCHEQUER OF PLEAS
From Michaelmas 1839 to Trinity 1840 inclusive
In the Third and Fourth Years of the Reign of Queen Victoria
Printed and published for R. Carrick, 1840
CASES IN THE EXCHEQUER OF PLEAS
Monday Nov 11 th
PRACTICE - EJECTMENT _ BILL OF PARTICULARS - PART AND PARCEL= MAP
Lessee Robert Ross v The Casual Ejector
Mr James SHIEL on behalf of Miss Ellen M BAILIE and her sisters, owners in fee of the lands of Kilmacardill, in the declaration in ejectment in this cause mentioned, moved that the conditional order of the 8th of June be made absolute. That was an order that the lessor of the plaintiff, should amend his declaration in ejectment, by describing the metes, and bounds, of the premises for which he had brought the ejectment, in order that the said Ellen M. BAILIE &c might be enabled to take defence for such part of said lands as were formerly demised to William ROSS and which they now claimed.
An affidavit was made by the attorney for the applicants, stating that this was an ejectment on the title, brought by the lessor of the plaintiff, for the recovery of the possession of all that farm of land, containing by estimation thirteen acres and a half, situate in the townland of Kilmacardill parish of &c and county of Tyrone, and in the ejectment described as specified, in and demised by a certain indenture of lease, bearing date the 15th Jan 1795, between Wm BAILIE then of &c and the lessor of the plaintiff of the other part. That the father of the lessor of the plaintiff died, possessed of a considerable farm whereof the premises for which this ejectment was brought, formed a part leaving three sons, William ,John, and Robert the lessor of the plaintiff.
That after the death of their father , the three brothers resided together upon the farm and occupied the lands jointly without making any division of the property.
That William BAILIE, the then proprietor of the lands of Kilmacardill by lease bearing date the l5th January 1795 demised to William ROSS, one portion of the said farm, by the description of all the farm of land which he, the said William, then possessed, containing by estimation thirteen acres and a half &c. That by another lease of the same date, the said William BAILIE demised to John ROSS, one other part of the said farm by the description of all the farm of land he then possessed, containing by estimation eight acres &c, and that by a third lease of the same date, he demised to Robert ROSS the lessor of the plaintiff, another part of the said farm, by the description of all the farm of land he then possessed containing by estimation thirteen acres and a half &c . These leases were for the term of 21 years or the lives of the respective Lessees.
The affidavit further stated that John ROSS died in 1824, and William in 1827 and that after the execution of the said leases, and up to the time of their respective deaths, they and Robert the lessor of the plaintiff, continued to reside together and to occupy the lands jointly as they had previously done. That William BAILIE, was succeeded in his estates by one Theodore BAILIE, whose daughters and co heiresses, the present applicants were, and that as such, co heiresses, they became entitled to the lands of Kilmacardill upon the death of their father. That being minors at the time of their father's death, they were made wards of Chancery, and that a receiver was appointed over their estates, to whom the rents of the said three farms were paid for several years.
That upon the deaths of John and William ROSS, their respective leases having expired ,applications were made to the survivor, Robert, the lessor of the plaintiff ,to take the farms of his deceased brothers, which, however he refused to do .
That in 1832 two ejectment decrees were obtained against the lessor of the plaintiff, one for the recovery of the possession of the premises demised to John ,and the other for the recovery of those demised to William ROSS. That possession was shortly afterwards taken of the farm so demised to John ROSS, and that possession was also taken of the farm which had been so demised to William ROSS ,in the following manner, viz , by the bailiff going upon one field and declaring that he took possession thereof as and for the premises held by William ROSS in his lifetime.
That various applications had been made to the said Robert ROSS to point out the boundaries of the farm which had been so demised to him, and that he had refused to do so.
That in the year 1834, the lessor of the plaintiff brought an action of trespass against the receiver, upon an allegation, that under the decree which had been so obtained for the recovery of the possession of the lands, demised to William ROSS, possession had been taken of a part of the lands demised to him the said Robert ROSS, but that in this action the jury found a verdict for the defendant.
That a copy of the ejectment in this cause, having been served upon the applicants, the deponent was employed to protect their rights: and that he was convinced from the course pursued by the lessor of the plaintiff, in the said action of trespass, his object was fraudulently to get possession under pretence, of the present ejectment, of the best part of the lands so demised to Wm. Ross, inasmuch as the applicants had never disputed the lessor of the plaintiff's title to the lands which had been demised to himself. That a notice was served upon the attorney of the lessor of the plaintiff requiring him to furnish the deponent with a statement of the metes and bounds of the lands of Kilmacardill mentioned in the ejectment.
Mr SHEIL -" The attorney employed by these ladies to take defence to the ejectment is totally at a loss to know the particular parts of the lands of Kilmacardill, which the lessor of the plaintiff seeks to recover by his ejectment: and as the question between the parties is one of part and parcel ,the lessor of the plaintiff ought to amend his declaration, so as that the applicants may be enabled to take defence. "
There was no appearance for the lessor of the plaintiff ,
Pennefather B - " Perhaps the more convenient course will be to stay the lessor of the plaintiff's proceedings, until he shall furnish a bill of particulars.
..Let the conditional order be varied by directing the lessor of the plaintiff to be restrained from proceeding in this ejectment , until he shall furnish a bill of particulars, specifying by metes and bounds the premises which he seeks to recover, and let him annex a map, thereof to the bill of particulars, and with that variation let the said conditional order be made absolute