Colclough v Smyth

• Jurisdiction: Ireland
• Judgment Date: 28 April 1864
• Date: 28 April 1864
• Court: Court of Appeal in Chancery (Ireland)

Colclough

and

Smyth.

Ch. Appeal.

CHANCERY REPORTS,

BEING A SERIES OF

CASES ARGUED AND DETERMINED

IN THE

HIGH COURT OF CHANCERY,

COURT OF APPEAL IN CHANCERY,

Rolls Court, Landed Estates Court,

AND

COURT OF BANKRUPTCY AND INSOLVENCY.

Court of Appeal in Chancery.

This case came before the Court upon an appeal from an order made by his Honor the Master of the Rolls, reversing an order of Master Litton.

By indenture of lease dated the 8th of July 1719, Arthur Reynall demised to John Carty and his heirs the lands of Manganstown, in the county of Westmeath, for three lives, reserving a yearly rent of £72, late Irish currency; in which indenture was contained a covenant for perpetual renewal on payment of a fine of £33.

The last surviving cestui que vie in this lease having died in 1803, on the 6th of April 1803 a renewal was granted by William Reynall, the then owner of the reversion, to Bridget Colclough, in whom the beneficial interest in the lease was then vested. This renewal recited the original lease, and recited that Sarah Carty, the surviving cestui que vie therein, had lately died, and that Bridget Colclough had nominated the life of “Beauchamp Colclough the younger, son of Beauchamp Colclough of Sion, in the county of Carlow, Esq., now of the age of fifteen years, or thereabouts,” as the life to be added in place of Sarah Carty; and the lands were demised for the lives of the Duke of York, Lord Frankfort, and the said Beauchamp Colclough. At the date of this renewal, there were three members of the Colclough family bearing the name of Beauchamp, viz., Beauchamp Colclough the first, the younger son of Bridget Colclough; Beauchamp Colclough the second, the eldest son of Henry Colclough (Bridget Colclough's eldest son); and Beauchamp Urquhart Colclough the third, the fourth son of Beauchamp Colclough the first.

A further renewal was granted, on the 10th of October 1826, to Henry Colclough and Beauchamp Colclough the first, by James Gibbins, who was then entitled to the reversion, for the lives of the Duke of York and Beauchamp Colclough, “the two lives named in the last renewal of said original lease,” and the life of her Majesty; and, on the 1st of April 1828, a further renewal was granted to and by the same parties, for the lives “of the said Beauchamp Colclough and the said Princess Alexandrina Victoria, daughter of the said late Duke of Kent, the two lives therein named in the last renewal of said original lease,” and Prince George, the present Duke of Cambridge.

The petition in the present case was presented by Harriet Colclough, in whom the lessee's interest in the lease of 1719 was now vested, praying that the respondent, Thomas James Smyth, the owner of the reversion, might be directed to grant to the petitioner a renewal of that lease, for the lives to be nominated according to the provisions therein contained, on payment of the rent, renewal fines and interest.

The case came before the Master of the Rolls on several occasions, and will be found reported supra, vol. 14, p. 127; and ultimately a decree was made by the Master of the Rolls, in accordance with the prayer of the petition, and the Master was directed to take the necessary accounts. On the reference before Master Litton it was contended, on behalf of the petitioner, that renewal fines should be calculated on the basis that Beauchamp Colclough, the cestui que vie in the renewal of 1803, was Beauchamp Colclough the second, who died in 1858; while, on the other hand, the respondent insisted that the cestui que vie was Beauchamp Urquhart Colclough the third, who died in 1845.*

Evidence was adduced to prove that Henry Colclough, the eldest son of Bridget Colclough, had a property in the county of Carlow, which bore the name of Sion, or Mount Sion, and on which he resided from 1798 to 1817; that Beauchamp Colclough the first, the younger son of Bridget Colclough, lived at Kildalvin, in the county of Carlow, from 1786 to 1818, when he went to Canada, and that he never resided at Sion; and several leases were produced, particularly one bearing date the 1st of October 1802, made

by Henry Colclough of Sion, and Beauchamp Colclough of...