Booth v M'Manus

• Jurisdiction: Ireland
• Judgment Date: 08 June 1861
• Date: 08 June 1861
• Court: Exchequer (Ireland)

Exchequer.

Before PIGOT, C. B., and FITZGERALD and DEASY, BB.

BOOTH

and

M'MANUS.

Close v. Brady Jon. & C. 186.

Mayhew v. Suttle 4 Ell. & Bl. 347.

Westmeath v. Hogg 3 Ir. Law Rep. 27.

Dease v. O'Reilly 8 Ir. Law Rep. 52.

Mulligan v. Adams Ibid, 132.

Pitt v. LamingENR 4 Camp. 73.

Pitt v. Hogg 4 Dowl. & Ry. 226.

Greenslade v. TapscottENR 1 Cr., M. & R. 55.

Crosby v. WadsworthENR 6 East, 602.

Parker v. StanilandENR 11 East, 362.

Jones v. Flint 10 Ad. & Ell. 753.

Rex v. The Inhabitants of St. Nicholas, RochesterENR 5 B. & Ad. 219.

Barnard's caseIR 7 Ir. Com. Law Rep. 374.

Brangan, app., Driscoll, resp. 5 Ir. Jur., N. S., 333.

Comiskey v. Bourne 6 Ir. Jur., N. S., 109.

Hare v. Celey Cro. Eliz. 143.

Strickland v. MaxwellENR 2 Cr. & M. 539.

Rex v. BramptonENR 4 T. R. 348.

Rex v. RingwoodENR 1 M. & S. 381.

Rex v. West CramoreENR 2 M. & S. 132.

Comiskey v. Bourne 6 Ir. Jur., N. S., 109.

In re M'Mahon 2 C. & D., C. C., 418.

Crosby v. WadsworthENR 6 East, 602.

Butcher v. ButcherENR 7 B. & C. 399.

Lord Bute v. GrindallENR 1 T. R. 338.

Dingley v. SalesENR 1 M. & S. 297.

Washbourn v. BurrowsENR 1 Exch. 107.

Rodwell v. Phillips 9 W. & W. 501.

Kelly v. Webber 5 Ir. Jur., N. S., 358.

Morris v. EdgingtonENR 3 Taunt. 23.

Barlow v. RhodesENR 1 Cr. & M. 439.

Hinchcliffe v. KinnoulENR 5 Bing., N. C., 1.

Re Quin 8 Ir. Chan. Rep. 578.

Brangan v. Driscoll 5 Ir. Jur., N. S., 333.

Westmeath v. Hogg 3 Ir. Law Rep. 28.

Dease v. O'Reilly 8 Ir. Law Rep. 52.

Close v. Brady Jones & C. 186.

Leroux v. BrownENR 12 C. B. 801.

Hare v. Celey Cro. Eliz. 143.

418 COMMON LAW REPORTS. E. T. 1861. Exchequer. May 8. T. T. 1861. BOOTH v. 3CMANUS.* June 8. A letting in THIS was an action of covenant for rent and a penal rent. The con-acre is not a "parting summons and plaint contained four paragraphs ; and the first claimed with the pos session," or a £115. 3s. 2d., " For that the Right Hon. Wellesley Pole, by inden " ceasing to occupy " pre- " ture of lease, bearing date the 25th day of March 1817, let to raises, within the meaning of " Mathias McManus and Andrew McManus all that part of the a covenant in " lands of Grangegibbon, containing 29a. Or. 27p., or thereabouts, a lease reserv ing a penal " situate in the parish of Kilbeggan, and county of Westmeath, for rent, in case the lessee " and during the lives of the cestuis que vies therein named, at the should, at any time, underlet, "yearly rent of £49. 15s. 4d., late Irish currency, equal to £45. set, assign or make over, or " 18s. 8d., British currency, payable quarterly ; and in case the said part with the possession or " lessees, or their representatives, should, at any time during the occupation of the premises, " continuance of said term, underlet, set, assign or make over or part to any person, or cease to " with the possession or occupation of the said premises, art or any p occupy the same, or do " thereof, to any person or persons whomsoever, or cease to occupy , any act where- " the same, or do, or permit, or suffer to be done, any act, deed, by the pre mises, or any " matter or thing whereby, or by means whereof, the same premises, part thereof, should come " or any part thereof, should or might come into the possession or into the pos session or " occupation of any person or persons other than of the said lessees, occupation of any person "or their next-of-kin, without licence of the said William Wellesley other than the lessee, without " Pole, his heirs or assigns, or his or their known principal agent, the landlord's consent.- " in writing, for that purpose first had and obtained, then, at the [Fzrzuv. BALD, a, dis- " further and additional yearly rent of £100, of like currency, payable sentiente], " quarterly; and afterwards, and during the continuance of the said " term, all the estate of the said Mathias McManus and Andrew " M'Manus, in the said lands and premises, came to and legally "vested in the defendant; and afterwards, during the continuance of " the term or interest thereby granted, all the estate, interest or rever sion of the said William Wellesley Pole, of and in the said demised " premises, came to and by means of an indenture of conveyance " from the Commissioners of the Incumbered Estates Court in Ire * Before limn', C. B., and FITZGERALD and DEASY, BB,- COMMON LAW REPORTS. 419 "land, bearing date the 6th day of May 1854, legally vested in the E. T. 1861. Exchequer. plaintiff, subject to said lease then so vested in the defendant, BOOTH " whereupon and whereby the plaintiff became and was, and still is, v. "seised thereof; and while the plaintiff was so seised of the said AeMANIFS. "reversion, and the estate of the said lessees was so vested in the " defendant, the said defendant did, during the continuance of said " term, to wit, on:the:23rd day of March 1860, and at several times " previously and since, without„ the licence of the said William " Wellesley Pole, his heirs or assigns, or his or their known prinÂ" cipal agent, in writing, for that purpose first had and obtained, " part with the occupation:of a portion of the said premises ; and "did, contrary to the intent and meaning of said indenture of lease, " cease to occupy same, and suffered same to come into the occupaÂ" tion of persons other than the said lessees, or their next-of-kin ; " and afterwards three quarters of said rent, and of said further and " additional rent, became due and unpaid, being respectively up " to and for the 29th day of September 1860." The second count was in covenant for the rent and penal rent. The third count claimed damages for the alleged breach of the covenant. The fourth count was upon an account stated. The defendant pleaded-" As to the indenture mentioned in the " first and second paragraphs of the summons and plaint, and the "three quarters' rent in each of said paragraphs mentioned, amountÂ" ing in each to the sum of £35. 9s., part of the sum in said sumÂ" mons and plaint demanded, defendant says, that the indenture " and rent, in both of said paragraphs mentioned, are one and the " same ; " and,_as to that sum, tender before action brought, viz., on the 27th of August 1860, lodging in Court a quarter's rent : " and as a defence to so much of the said first paragraph as "'alleges that the defendant parted with the occupation of a portion " of the premises demised by said indenture of the 25th of March " 1817, and did, contrary to the intent and meaning of said indenÂ" ture, cease to occupy same, and suffered same to come into the " occupation of persons other than the lessees under said indenture, " or their next-of-kin, and that three quarters of further and 420 COMMON LAW REPORTS. " additional rent afterwards became due to the plaintiff, defendant " says that she did not part with the occupation of a portion of the " said premises, nor did she, contrary to the intent and meaning of " said, indenture, cease to occupy same, nor did she suffer same to come " into the occupation of persons other than the said lessees, or their " next-of-kin, as in said first paragraph alleged, nor did the whole, " or any part of three quarters of said additional rent therein claimed " become due, as therein alleged." The remaining defences were traverses of the alleged breach of covenant, and of the account stated. Six issues were settled upon these pleadings, and of these the first and second were as follows :-First; whether the defendant, before the commencement of this suit, did, as in the first defence alleged, tender to the plaintiff the sum of £35. 9s., as and for the rent of the premises in the plaint mentioned ? Secondly ; whether the defendant parted with the occupation of a portion of the premises in the plaint mentioned, or ceased to occupy same, or suffered same to come into the occupation of perÂsons other than Mathias M'Manus and Andrew M'Manus, or their next-of-kin, as in the first paragraph of the plaint alleged ? The case was tried before the Lord Chief Justice, at the Spring Assizes of 1861, for the county of Westmeath. The plaintiff proved the lease of the 25th of March 1817, and also proved, by himself and his witnesses, that one-half of the lands included in the lease, which had been before pasture, bad been, in the months of February and March 1860, taken from the defendant by several persons for con-acre oats, and that those persons had themselves ploughed and sown the land, and taken away the crop. The defendant proved a tender of £35, for three quarters' rent, up to the 29th of June 1860 ; and further deposed, that she let part of the demised lands in con-acre in 1860, to the extent of twelve or thirteen acres, according to the usual custom of the country, for oats; that her steward kept the key of the gate of the field, after it was sown ; that the grass on the head-land of the field was not let by her, and was cut by her men for her ; and that no one was allowed on the land, while the crop was in, but her men, and the person COMMON LAW REPORTS. 421 who sowed; that there was no particular time mentioned in the E. T. 1861. hequer. contract for which it was to last, only from sowing to reaping ; that Exc they preserved the land from trespass, and that she was paid for the BOOTH v. crop before it was removed. M'MANUS. Upon cross-examination she stated that the head-land was not let for con-acre ; that she did not plough any of the land herself for the con-acre tenants, and that she got £7. 10s. per acre ; that the gate was kept locked, but that the parties were allowed to go in and out when requisite. A witness named Mark Colgan was also examÂined on the defendant's behalf, who proved that he was an extensive tenant farmer ; that he had let in con-acre for himself and others, and that, when he so let, he did not part with the occupation, and that he always conceived the possession remained with him, and that...