Colclough v Smyth

• Jurisdiction: Ireland
• Judgment Date: 12 January 1864
• Date: 12 January 1864
• Court: Court of Chancery (Ireland)

Colclough

and

Smyth.

Rolls.

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.

By the decree in this cause, which was a petition for a renewal [reported ante, vol. 14, p. 127], it was referred to the Master to ascertain the amount due for rent, renewal fines and interest, and to settle the deed of renewal. The Master found that there was due to Thomas James Smyth, Esq., the sum of £199. 7s., being three years' rent up to and including the 1st of May 1862; and for renewal fines the sum of £30. 9s. 2³/₄d.; and for interest thereon to the 13th of June 1862, £5. 8s. 3d.; said sums making together £234. 4s. 5³/₄d; inasmuch as he was of opinion that the life in the renewal of 1803 died in the year 1858.

The respondent excepted to the report that the Master ought to have found that there was due to him as landlord, for renewal and septennial fines the sum of £91. 7s. 8¹/₄d., and for interest thereon to the 30th of June 1862, the sum of £43. 19s. 7d., the said two sums, together with the said three years' rent, making altogether the sum of £334. 14s. 3¹/₄.

The facts of the case will be found in the former report, and in his Honor's judgment.

Argument.

Mr. Warren and Mr. May, in support of the exception, relied on the maxim “veritas nominis tollit errorem demonstrationistas applicable to the case. There was a person of the name of Beauchamp Colclough, the son of Beauchamp Colclough, but the description “of Sion” was wrong. There was no legal evidence to identify the life in the renewal of 1803 with Beauchamp Colclough the second, the petitioner's husband—King v. Haines (a)—to counteract the effect of the maxim, which could only be done by evidence amounting to judicial certainty: Wigr. on Discovery, pp. 47, 99; Pryce v. Newbolt (b); Delmare v. Rebello (c); Holmes v. Custance (d); Garner v. Garner (e); Roe v. Lidwell (f); In re Plunket's Estate (g); Molloy v. Francis (h), Hiscocks v. Hiscocks (i); Blundell v. Gladstone (k); Lord Camoys v. Blundel (l); Bennett v. Marshall (m).

Mr. Robinson, for another respondent in the same interest as the petitioner, cited Thomas v. Thomas (n).

Mr. F. W. Walsh, in support of the Master's report, said that the maxim relied on applied in favor of the petitioner; for the name of the person who, the respondent contended, was the life in the renewal of 1803 was Beauchamp Urquhart Colclough, whereas the name of the person whom the Master found to be the cestui que vie was Beauchamp Colclough; and the presumption thus arising, veritate nominis, was supported by the evidence which had been given (o); especially that of the age of Beauchamp Colclough the second, which corresponded with the description in the renewal of 1803. The question was, on which side the balance of evidence of identity preponderated. In favor of the petitioner there was the correspondence of name, age, and description of the residence

of the father of the cestui que vie. On the other side there was only the name of the father of the cestui que vie, which was part of the description; that was not “veritas nominis” but “error demonstrationis.”

Judgment.

The Master of the Rolls.

This case comes before the Court upon exceptions to the report of Master Litton, which report was filed on the 30th of May 1863. The cause was not heard on the exceptions until last Michaelmas Term, not having been set down for hearing for Trinity Term.

The petition was filed by the petitioner Harriet Colclough, to obtain the renewal of a lease dated the 8th of July 1719, of the lands of Manganstown, in the county of Westmeath, containing 326 acres.

The lease was made by Arthur Reynell deceased, to hold for the three lives therein mentioned, at the rent of £72 of the then currency of Ireland. The lease contains a covenant for perpetual renewal on payment of a fine of £33 late currency on the fall of each life.

The interest in the said lease, prior to the renewal of 1803, which I shall just now state, became vested in Bridget Colclough for life, under the will stated in my judgment in this case, reported in the 14 Irish Chancery Reports, p. 134.

On the 6th of April 1803 a renewal was executed by Mr. William Reynell (then the owner of the reversion) to the said Bridget Colclough. The renewal recited that the said Bridget Colclough had nominated the life of Beauchamp Colclough the younger, son of Beauchamp Colclough of Sion, in the county of Carlow, Esq., then of the age of fifteen or thereabouts, as the life to be added and inserted in the room of Sarah Carty deceased; and the renewal was granted for the lives of the Duke of York, of the then Lord Frankfort, and of the said Beauchamp Colclough, the life so nominated.

The question which I have to decide on the exceptions to the Master's report is, who that Beauchamp Colclough (the life nominated) was.

The said Bridget Colclough had two sons, Henry Colclough...