T. T. 1856. tees (a), Lord Lyndhust said :—“ A person of the name of M'Intyre,

:

Common Pleas. "who is a solicitor by profession, residing at Callender, was

POLLOK

v. KELLY.

"appointed, in consequence of the embarrassment of the lessor's "affairs, factor, to receive and collect the rents; he was appointed "by an express and special authority for that purpose, to receive "and collect the rents, and, in case of non-payment, to enforce "payment. But he had not, by virtue of the power with which "he was invested, any authority whatever to receive notices to quit. "It appears to me therefore that any notice served upon him by the "tenant, of an intention to quit, was not a sufficient notice to put "an end to the term." Powers of attorney are strictly construed: Hogg v. Snaith (b); Esdaile v. La Nauze (c); Murray v. East India Company (d). In 2 Cru. Dig., p. 373, s. 45, the rule as to joint tenancy is thus laid down :-"As there can be no "moieties between husband and wife, they cannot be joint tenants; "therefore where an estate is conveyed to a man and his wife, and "their heirs, it is not a joint tenancy; for joint tenants take by "moieties, and are each seised of an undivided moiety of the whole. "But husband and wife, being but one person, cannot, during the "coverture, take separate estates; therefore, upon a purchase made "by them both, each has the entirety, and they are seised per tout "and not per my; and the husband cannot forfeit or alien the "estate, because the whole of it belongs to his wife and not to him." Right v. Cathell (e); Doe d. Aslin v. Summersett (f); Doe d. Lyster v. Goldwin (g); Doe d. Mann v. Walters (h).

Napier, in reply.

Supposing that the plaintiffs took by entireties, under the conveyance, then their case is even stronger than if they took as joint tenants, for if they took by entireties, the whole authority was in the husband: Henstead's case (i).

Con- T. T. 1856.

The following authorities were also cited: Watkins on veyancing, p. 177; 1 Wms. Saunders, 276f (note); Doe d. Stace v. Wheeler (a); Doe d. Rhodes v. Robinson (b); Robinson v. Comyns (c); Doe d. Macartney v. Crick (d); Doe d. Bradford v. Watkins (e); Irish Society v. Bishop of Derry (f); Doe d. Waithman v. Miles (g); Sewell v. Evans (h).

MONAHAN, C. J.

The question to be decided in the present case is a simple one, namely, whether at a particular stage of the trial a notice to quit should have been received in evidence? The exception which raises this point is the only one upon which we need give judgment. There are ten or eleven other exceptions, but I confess I do not understand why they were taken; for if the Judge was right in refusing to admit this document, then the other exceptions should be overruled as a matter of course; therefore we shall consider this one exception only.

The facts of the case are substantially these:-An action of ejectment was brought in the name of Mr. and Mrs. Pollok against the defendants, as overholding tenants. One of the defendants, Kelly, allowed judgment to go by default, and the two others took defence, each for a separate portion of the lands. At the trial, Mr. Pollok proved, by a conveyance from the Commissioners of the Incumbered Estates Court, that the property had been conveyed to him and his wife 66 as joint tenants." We are of opinion that the operation of that conveyance was to grant to Mr. and Mrs. Pollok an estate by entireties; for to speak of a grant to a husband and wife as an estate of joint tenancy is, properly speaking, a solecism.

Now, on the face of the conveyance, it appears that the plaintiffs were to hold the property subject to the tenancies referred to in the schedule; and in the schedule it appears the lands of Boggauns, the subject-matter of the ejectment, consisting of 76a. 3r. 4p., were

(a) 15 M. & W. 623.

(c) Cas. temp. Talbot, 167 n.

(e) 7 East, 550.

(g) 1 Stark. N. P. 181.

(b) 4 Scott, 396.

(d) 5 Esp. 196.

(f) 12 Cl. & Fin. 665, 673.

(h) 4 Q. B. 626.

Common Pleas.

POLLOK

บ.

KELLY.

Common Pleas.

POLLOK

บ.

KELLY.

T. T. 1856. held by "Andrew Kelly & Co.," at a bulk rent of £19. Os. 6d., as tenants from year to year; the tenancy being determinable on the 1st of November in each year. The schedule did not state the names of the other tenants, or in what manner they held, whether as joint tenants, or tenants in common inter se. The next step in the proof of the plaintiffs' case was a power of attorney, executed by Mr. and Mrs. Pollok, but void as far as she was concerned, as a married woman cannot execute a power of attorney, and operating, therefore, as if it were a power of attorney executed by the husband alone. This power purports to authorise Mr. Barrington to demand and receive rents, and in case of nonpayment of rent, to recover the same by distraining or bringing actions. It also authorised him to take proceedings at Law or in Equity for the purpose of enforcing the performance of any covenants contained in the tenants' leases, "and for that purpose, "when necessary, to sign in our names or otherwise, notices to "quit, and to serve and proceed upon, or in his discretion to waive, "the same," &c. But it clearly did not authorise him to serve notices to quit in this particular case; and therefore if his authority to serve notices to quit in the present case depended upon the power of attorney alone, he certainly would have had no such authority. But it appeared upon the examination of Barrett, who was a clerk of Mr. Barrington's, that he, Barrett, got from Barrington several blank notices to quit, signed by Barrington, and directions to take the blank notices to Galway, and to go to one Michael Kelly, who would give him the names of the tenants, and he was then to fill up the notices and serve them. He accordingly, acting upon these instructions, filled up and served several notices to quit, and had one, among others, served upon Andrew Kelly. It further appeared that there was evidence of Barrett's having got a parol authority from Pollok himself; and I may mention that we ground our decision chiefly upon this part of the case.

Now, under these circumstances, the question is, was there authority to serve these notices? All the parties at the trial appear to have been under the impression that the power of attorney was the sole authority, and the objection made was that Mrs. Pollok's

Common Pleas.

POLLOK

v.

KELLY.

concurrence in the notices to quit was necessary, and that she being T. T. 1856. a feme covert, the power of attorney was void as to her. We are of opinion that Mrs. Pollok's concurrence was not necessary. We think that when a married woman has property in her own right, her husband has such an estate in right of his wife as would enable him to convey a freehold to a third person during the joint lives of the husband and wife, and that he has such a legal estate as that he could convey a legal estate to a third person, and make him tenant to the præcipe when recoveries were the modes of conveying property. We are of opinion that any person who has the present legal estate can serve such a notice as the one before us. The question is, can he do so without the concurrence of his wife? We think it is perfectly clear that he can, or that his lessee can. We do not now mean to determine what the effect would be of the death of the husband before the period when the notice to quit expired: all we have to consider is, whether, as the husband has survived that period, and as his legal estate is in full existence, it was not such a notice as would determine the tenancy.

It is said that the moment the notice to quit is served, it should be binding on the tenant. The same consideration arises in a case with which we are all conversant:-Suppose a property held subject to tenancies from year to year, and demised to another pur autre vie; in that case it is undeniable that the middle-man may determine the pre-existing tenancies. One of the cases cited for the defendants has actually ruled this point; I allude to the case of Doe d. Lyster v. Goldwin (a). In that case the plaintiff had mortgaged the premises, to secure payment of an annuity. The mortgage contained a clause that the mortgagor was to remain in receipt of the rents and profits until default in the payment of the annuity. The premises were, at the time of the mortgage, in possession of a tenant from year to year, to whom the mortgagor afterwards gave a notice to quit, in his own name. The question was, whether that notice was valid? The Court held that the deed operated as a re-demise to the mortgagor, and that he, being tenant until default made in payment, had such an estate as enabled him

(a) 2 Q. B. 143.

Common Pleas.

T. T. 1856. to serve notices to quit, and that therefore the notice was good. Accordingly, we are of opinion that the plaintiff Mr. Pollok, in the present case, had such an estate as enabled him to serve notices to quit, in his own name.

POLLOK
V.

KELLY.

Therefore the only question that remains for our consideration is this was there any evidence that these notices were issued and served by his authority, and that they were served on the proper parties? If the question of authority depended upon the power of attorney alone, that certainly did not authorise these notices; for it only authorised the collecting of rents, distraining, &c., for same, and the taking proceedings to enforce covenants, and for that purpose the serving of notices to quit ; but certainly did not authorise either the creation of tenancies or a general serving of notices to quit, in order to determine tenancies. But it is to be remembered that the question is not whether there was conclusive evidence that the service of these notices was authorised by Mr. Pollok, but whether there was any evidence to that effect? Now what was the evidence upon that point? Barrett stated that he brought down the notices in blank, signed by Barrington; "Witness got some of the notices "from Croker Barrington, and more of them in the office, before "he went to Galway; some of them were sent to witness from "Dublin. Witness had a conversation with Croker Barrington "about the notices which witness got. Barrington gave witness "direction to have notices to quit served on all the tenants; to do "them correctly, according to the best of witness' ability. Witness "got directions to have those notices served, and that Kelly would "give witness every assistance about them. Witness got instruc"tions from Mr. Pollok himself." What is the fair construction of that, but that he got the instructions as to these notices from Pollok himself? It was for the jury to judge of the conclusiveness of that evidence. We are not now reading a legal document, but the report of the Judge who tried the case; and certainly the plain inference to be drawn from the evidence, as it appears on that report, is that Pollok personally gave instructions to have these identical notices served, and that Barrett acted upon instructions received both from Barrington and from Pollok himself.