Fitzgerald v Carew

• Jurisdiction: Ireland
• Judgment Date: 10 June 1839
• Date: 10 June 1839
• Court: Court of Chancery (Ireland)

Fitzgerald

and

Carew.

CASES

IN THE

COURTS OF CHANCERY, ROLLS, AND

EQUITY EXCHEQUER.

CHANCERY.

RENEWAL — CURRENCY ACT — PRACTICE — COSTS.

Suit for renewal.—The plaintiff before filing his bill, had tendered a draft renewal lease for the approval of the defendant, and 200 sovereigns for arrears of rent and fines, which the defendant had refused.

The case made by the defendant was, first, that in the original lease, which was dated 3d October, 1695, the rent was reserved in these words “£53 lawful money of England;” and the fine in the same manner. He accordingly insisted that the rent and fines were payable in British currency, and that the sum tendered was insufficient. Secondly, he insisted that he had claims against the plaintiff on foot of certain judgments, which he ought in equity to pay before he could claim a renewal.

Sergeant Greene, Mr. T. B. C. Smith, Q. C., and Mr. Lentaigne, for the plaintiff.—The question as to the currency in which the rent and fines are to be paid is now settled on full deliberation, by Neville v. Ponsonby (a). Kearney v. King (b), shews that the currency must be

presumed to be that of the country where the instrument is drawn, Sproule v. Legg (a), is to the same effect. Then, as to the claim on foot of judgments, we admit, that if the defendant had proved his allegation, that those judgments were for sums formerly due out of the lands for rent and fines, he might have insisted on their payment. But that has been disproved, and it is settled that a collateral demand cannot be insisted on as a condition of granting a renewal, Trant v. Dwyer (b).

Mr. Blackburne, Q. C., Mr. W. Brooke, Q. C., Mr. Blake, Q. C., and Mr. Hughes, for the defendant.

The question on the currency is certainly a very difficult one. The Barons of the Exchequer differed from each other in Neville v. Ponsonby. The question was raised as regards the effect of the statute* upon solicitor's fees before Sir Edwd. Sugden (c). The doctrine in Cooke v. Booth (d), that receiving in mistake a lesser sum instead of a greater would bind the party for the future has been since entirely repudiated, Baynham v. Guy's Hospital (e), and afterwards in Moody v. Mathews (f). At all events it was a fair question for the defendant to raise. As to the demands on foot of the judgments, they were just debts, and connected with the defendant's claims out of the lands.