Earl of Mountcashell v Viscount O'Neill

• Jurisdiction: Ireland
• Judgment Date: 06 November 1852
• Date: 06 November 1852
• Court: Queen's Bench Division (Ireland)

Queen's Bench

EARL OF MOUNTCASHELL

and

VISCOUNT O'NEILL.

The King v. JefferiesENR 4 T. R. 767.

Davison v. GillENR 1 East, 64.

Goss v. JacksonENR 3 Esp. 198.

Galwey v. BakerENR 7 Cl. & Fin. 379.

King v. May Doug. 193.

Wright v. ClementsENR 3 B. & Ald. 503.

Sheppard v. Gosnold Vaugh. R. 159.

Magistrates of Dunbar v. Duchess of RoxburgheENR 3 Cl. & Fin. 335.

Shuttleworthƒ€™s case 9 Q. B. 651.

Gardiner v. BlesintonUNK 1 Ir. Ch. Rep. 64.

In re Derosneƒ€™s Patent 4 Moore Priv. Coun. Cas. 416.

The King v. The Poor-law Commissioners 6 A. & E. 7.

Bristol Hospital v. NortonENR 11 M. & W. 913.

The King v. The Justices of LeicesterENR 7 B. & C. 12.

The King v. The Inhabitants of BirminghamENR 8 B. & C. 35.

Galwey v. Baker 7 Cl. & F. 399.

436 COMMON LAW REPORTS, M. T. 1852. Queen's Bench EARL OF MOUNTCASHELL v. VISCOUNT O'NEILL.* (Queen's Bench.) Nov. 5, 6. A, being TROVER, for trees growing in and upon the lands of Claggan, in the owner in fee, demised cer- county of Antrim-Plea, the general issue. tam lands to B, reserving The case came before the Court on a special verdict, which found out of the de- mi, inter that, by an indenture of lease of the 2nd of March 1816, the then se alma, " ail tim- ber and other Earl of Mountcashell, being seised in fee of the said lands, had trees both above and un- demised the same to Earl O'Neill, together with all the rights and der ground ;" and the inden- appurtenances thereunto belonging, "excepting, and always reserv- ture contained a covenant by B that he would " uphold, sustain and keep all the houses, &c., plantation of trees, and other improvements whatsoever, that now are, or at any time hereafter during the said demise shall be, built or made," &c. Held, that notwithstanding such covenant, the lessee had a property in the trees planted by him during the term, if such were registered, pursuant to the 23 & 24 G. 3, c. 39. The 1st section of that statute enacts, that any tenant for life or lives, by settlement, dower, courtesy, jointure, lease, or office, civil, military or ecclesiastical, impeachÂable of waste, or any tenant for years exceeding fourteen years unexpired, who shall plant timber trees shall he entitled to cut same. And by section 2 it is proÂvided that the tenant so planting shall lodge an affidavit and give notice in the form following-[It then set out a form.]-Held, that all the persons enumerated in the I St section were entitled to the privilege thereby granted, and that the form of affiÂdavit thereby given might be moulded to suit the nature of the tenancy of each person so registering.-[LEFRoy, C. J., dissentiente.] The lessee gave notice of eight separate plantings, and in seven of these the affiÂdavit of registry was made by the agent of the lessee, not by the lessee himself. Held, that such affidavit, made by the tenant, steward or agent, was sufficient ; the words, " in form following," in the 2nd section of the Act, being merely ffireeÂtmy.-[LEFuov, C. J dissentiente.] The affidavit as to one planting was sworn by the tenant himself, but the trees planted were stated to be on two denominations of land, without specifying the quantity on each ; both were held under the same landlord, and the tenure of the second denomination did not appear. Held, that such affidavit was bad, and the registry insufficient.-[Dissentientibus CRAMPTON, J., and PERRIN, J.] In another affidavit, two denominations of land were also comprised, but they were held under different landlords, and the number of trees planted on each was umped, and the quantity planted on each was not specified. Held, such affidavit was bad, and the registry insufficient. * A writ of error having been lodged in this case, it is printed in advance of the Term in which it would ordinarily appear. COMMON LAW REPORTS. 437 " ing, out of the said demise, all mines, minerals, coals and quarries of " marble, freestone and slate, and all timber and other trees both above " and under ground," Habendum for three lives (one of which was still in being.) This indenture contained a covenant to this effect :Â" And the said Earl O'Neill doth for himself, his heirs and assigns, " covenant, promise and agree to and with the said Earl of MountÂ"cashell, his heirs and assigns, that he, the said Earl O'Neill, his " heirs and assigns, shall and will from time to time, during the said " demise, well and sufficiently uphold, sustain and keep, all the " houses, edifices, buildings, fences, ditches, drains, plantations of " trees and other improvements whatsoever that now are, or at any " time hereafter during the said demise shall be, built or be made " on the said demised premises, in good and sufficient tenantable " order, plight, condition and repair ; and at the end or sooner deterÂ" mination of the demise (which shall first happen) shall and will " peaceably and quietly yield and deliver the said premises in the " like good tenantable order, plight, condition and repair, in all "respects, unto the said Earl Mountcashell, his heirs and assigns." The verdict further found that Earl O'Neill became by virtue thereof seised in his demesne as of freehold for the term of lives thereby granted, and so continued until his death on the 26th of March 1841 ; on which event the residue of the term and estate granted by the said indenture became legally vested in his brother, the present defendant. That the Earl of Mountcashell, down to the time of his death, on the 27th of October 1822, was seised of, and entitled to, the reversion and inheritance in fee-simple in the said lands ; and that the plaintiff was his eldest son and heir-at-law, and was now seised of, and entitled to, said reversion. That after the execution of said indenture, and within twelve calendar months before the date of the affidavit therein mentioned, Earl O'Neill caused to be planted, partly on the lands demised by the said indenture, and partly on the lands of Aghafattan, then held by him as tenant to Earl Mountcashell, the several trees stated in the notices therein mentioned to have been published in the Gazette, and set out in the affidavit-that is, part of the trees on the said lands of Claggan, and the remainder on the lands of 438 COMMON LAW REPORTS. M. T. 1852. Aghafattan ; and that on the 5th day of June 1816, he had lodged Queen's Bench with the Clerk of the Peace of the county of Antrim an affidavit LORD sworn by him on the 20th of May 1816, before a Justice of the MOUNT CASHELL Peace ; and which affidavit still remained on a separate file amongst V. the records of the county. The affidavit was in the following words LORD O'NEILL. and figures :- " County of Antrim, " I, the Right Hon. Charles Henry St. John, to wit. " Earl O'Neill, do swear that I have caused to " be planted, within twelve calendar months last past, on the lands " of Claggan and Aghafattan, in the parish of Skerry, held by me " from the Right Hon. Stephen Earl of Mountcashell, the following " trees, viz. :-oak, 10,000; ash, 14,900 ; larch, 32,900, &c. ; and " that I have given notice to George Joy, agent to the said Earl of "Mountcashell, under whom I immediately derive, of my intention " to register said trees, twenty days at the least previous to this " day ; and that I have given notice of my intention to register said " trees, by public advertisement, in the Dublin Gazette, thirty days " at the least previous to the date hereof.-O'NEILL. " Sworn before me this 20th day of May 1816.-P. AICKEN, J.P. " Received and filed 5th of June 1816.-S. DARCUS, Acting: Clerk of the Peace, county Antrim." The notice in the Gazette by Earl O'Neill was also duly found on the 18th of April 1816, and also the notice on George Joy, as agent of Lord Mountcashell, and that he continued agent to the plaintiff in respect of the lands to which the several notices related. The verdict further found that Earl O'Neill, up to the time of his death, employed one William M'Auliffe as his steward and agent in managing the lands of Claggan, and authorised him to give the several notices, and lodge with the Clerk of the Peace the several affidavits mentioned in reference to the planting of trees, on behalf of Earl O'Neill. It then found that within twelve calendar months next before the swearing of the affidavit by M'Auliffe, he, as such steward and agent, with the assent and on behalf of Earl O'Neill, planted, or caused to be planted, on the lands of Claggan the several trees mentioned in the affidavit of the said William M'Auliffe ; and that on the 18th of October 1820, he lodged with COMMON LAW REPORTS. 439 the Clerk of the Peace such affidavit, and that same still remained among the records of the county. That affidavit was as follows :- " I William M'Auliffe do swear that I have planted, or caused to " be planted, within twelve calendar months last past, for the Right " Honorable Charles Henry St. John Earl O'Neill, on the lands of "Claggan, in the parish of Skerry, lower half barony of Antrim, " and county of Antrim, held by the said Earl O'Neill from the " Right Hon. Stephen Earl of Mountcashell, the following trees " (enumerating them), and that notice has been given to George " Joy, agent to the said Earl of Mountcashell, under whom the said " Earl O'Neill immediately derives, of his Lordship's intention to " register said trees, twenty-one days at the least previous to this " day ; and that notice has been given of his Lordship's intention to " register said trees by public advertisement in the Dublin Gazette " thirty days at least previous to the date hereof. " WILLIAM M'AULIFFE. " Sworn, &c.-P. AICKEN, J. P. "Received 18th of October 1820.-S. D., Clerk of the Peace." It was further found that after the planting of said last mentioned trees, and thirty days and upwards before said last mentioned affiÂdavit, viz., on the 6th.of July 1820, Earl O'Neill gave notice in the Gazette as follows : " I, the Right Hon. Charles Henry St. John Earl O'Neill...