J. J. Murphy v Cornelius Daly

• Jurisdiction: Ireland
• Judgment Date: 10 November 1860
• Date: 10 November 1860
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

J. J. MURPHY

and

CORNELIUS DALY.

Morris v. Morris 1 Hog. 238.

Martin v. Coggan 1 Hog. 120.

Morris v. Morris Ubi supra.

Barret v. Barret Hetley's Rep. 35.

Doe d. Grubb v. The Earl of BurlingtonENR 5 B & Ad. 507.

Tresham v. Lambe Brownlow & Gold's Rep., pt. 2, p. 46.

ConnUNK 1 Ir. Ch. Rep. 273.

Morris v. Morris; Goring v. GoringENR 3 Swans. 661.

Simmons v. NortonENR 7 Bing, 640.

Creagh v. CarmichaelUNK 7 Ir. Eq. Rep. 334.

2 Rol. Abr. 815.

Gunning v. GunningUNK 2 Show, 8.

Doe v. The Earl of Burlington Ubi supra.

Tyringham's caseUNK 4 Rep. 36 a; S. C., Tudor's L. Cas. 73.

UNKENR 2 Inst. 145, 299; 5 Rep. 13 b; Co. Lit. 53 a.

ENR Co. Lit. 53 b.

Simmons v. NortonENR 7 Bing. 640, 647.

Gunning v. GunningUNK 2 Show, 8.

Eaton v. Lyon 3 Ves. 692.

Atkins v. Temple 1 Rep. in Ch. 13.

Calvert v. Gavin 2 Sch. & Lef. 562.

Fermier v. Maund 1 Rep. in Ch. 62.

Goring v. Goring 3 Swanst. 61.

Martin v. Coggan 1 Hog. 120.

Morris v. Morris 1 Hog. 238.

Juley v. Stockley 1 Hog. 247.

Creagh v. CarmichaelUNK 7 Ir. Eq. Rep. 334.

Penwarden v. ChingUNK 1 Moo. & M. 400.

Holcroft v. HeelENR 1 Bos. & P. 400.

Campbell v. WilsonENR 3 East, 298.

Tresham v. LambeENR 2 Br. & G. 46; 8 Jac. 1.

Gunning v. GunningUNK 2 Show. 8.

Simmons v. NortonENR 7 Bing. 640.

Malverin v. SpikeENR 1 Dyer 33.

Lord D'Arcy v. AshwithENR Hob. 234.

Fermier v. Maund 1 Rep. in Chan. 62.

Creagh v. CarmichaelUNK 7 Ir. Eq. Rep. 34.

Martin v. Coggan 1 Hog. 120.

Morris v. Morris 1 Hog. 238.

Joley v. Stockley 1 Hog. 249.

COMMON LAW REPORTS. 239 marriage of 1817, for I can quite well understand that, for the M. T. 1860. ' ench purposes of morality, the officers may have deemed it right to Queen sB celebrate a marriage which might afterwards be rendered complete DU MOULIN v. when the parties arrived at their destination. But where was the DRUITT. necessity ? If the vessel had been sailing from Cork to Gibraltar, instead of to New South Wales, she would have been going on a voyage of perhaps a fortnight's duration : but still would have been going to a British port. Where is the distinction between the cases? The only difference between the case which actually occurred, and that which I have supposed, consists in the length of the voyage; and the plea of necessity would apply in the one case as well as in the other. There was nothing in the position of the parties to absolve them from compliance with the provisions of the law ; we are are therefore to deal with this case on the authority of The Queen v. Millis. Acting on the authority of that case, we have come to the conclusion that, although according to EcclesiasÂÂtical Law, the consensual marriage of 1817 may have had force for certain purposes, yet that by the Common Law it was invalid, and cannot affect the subsequent marriage of 1825. The plaintiffs have established their legitimacy, and are entitled to have the verdict, which was had for the defendant, turned into a verdict for themselves. Cause shown disallowed. J. J. MURPHY v. CORNELIUS DALY. T. T. 1860. May 7. M. T. 1860. Nov. 10. Tnis action was brought in pursuance of an order made by the Meadow land, which has not Master of the Rolls, on the 27th April 1857, whereby his Honor been broken up during the twenty years which immediately preceded the execution of a lease, is, as between lessor and lessee, ancient meadow, the breaking up of which during the term amounts to a breach of the lessee's covenant not to commit waste. So held by the Court of Exchequer Chamber, reversing the judgment of the Court of Queen's Bench.-[LEFRoy, C. J., and O'BRIEN, J.; HAYES, J., dissenÂÂtiente. FITZGERALD, J., absente.] 240 COMMON LAW REPORTS. n.n T. T. 1860. made absolute a conditional order for an injunction to restrain the Queen'sBench ---,- defendant from breaking up. the lands demised to him by a lease bearing date on the 1st May 1851 ; and further directed that J. J. Murphy, Esq., the Master in the cause and the grantor in that lease, should bring an action against the lessee (the now defendant), in order to ascertain the rights of the parties. The writ of summons and plaint issued on the 28th of January 1859; and the first paragraph stated that :-The plaintiff, by a certain indenture of lease, demised to the defendant that part of the lands of Ballyderoon, called the " Fern," . . . to hold the same, with the appurtenances, from the 1st day of May ,1851, for the term of seven years, pending the several matters and cause therein mentioned. The paragraph then set forth the defendant's covenants in the lease, viz. : to manage and cultivate in a proper and husband-like manner ; and that he "should not, during the said term, " commit or suffer any wilful or voluntary waste to be committed "on said demised, premises or any part thereof;" and to repair, and keep in repair, and deliver up in good order, the demised premises. The paragraph then alleged a breach of the covenant to manage and cultivate in a proper and husbandlike manner. The second paragraph stated :-" That since the making of the "said indenture, and during the continuance of the term thereby "granted, to wit, on divers days and times between the 1st day of " December 1856, and the 1st day of March 1857, the defendant "committed waste on said demised premises, by ploughing and " breaking up ancient meadow and pasture, and converting same "into arable and tillage, contrary to his covenant in that behalf." There was a third paragraph, which alleged a breach of the covenant to repair. Plea to the second paragraph :-" That the premises ploughed " and broken up by the defendant were not ancient meadow and " pasture and that converting said land into arable and •tillage "land was not contrary to the covenant, of the defendant in that " behalf?' • On this.,plea, -the third issue was knit. That issue was :- COMMON LAW REPORTS. 241 Whether the lands ploughed up by the defendant, or any of them, T. T. 1860. Queen's Bench were ancient meadow and pasture ; and whether the converting of MURPHY said lands into arable and tillage lands was contrary to the defend- v. ant's covenant not to commit waste ? DALY. The action was tried before LEFROY, C. J., at the Sittings after Hilary Term 1860. A map, and the evidence of the plaintiff's witnesses (some of whom had known the lands for thirty, and some for fifty years), showed that the lands, being situate at the confluÂÂence of the rivers Araglin and Blackwater, are subject to floods, and had always, so long as they could remember, been in pasture, until the defendant broke them up, early in the year 1857 ; in the month of September of which year a flood washed away some of the mould, and left the potatoes, then growing there, exposed to view ; that, when the defendant gave up the lands, a great part of the surface soil had been washed away ; and that, considering the situation of the lands, it was decidedly bad husbandry to ' plough them up. The defendant deposed that he had meadowed the lands till the spring of 1857, when the meadow became so bad that he let the land for potato gardens, to improve it ; and that he thought it good husbandry to break up the lands, because he intended to sow grass seeds in them. The defendant and his witnesses, however, admitted, upon cross-examination, that the lands had been injured by the loss of some of the surface soil carried away by the flood ; and some of the witnesses deposed that the lands in question, or part of them, had been tilled about thirty-five years before. The LORD CHIEF JUSTICE, in his charge, left the case to the jury to find a verdict upon the several issues according to their view of the evidence, except as to the issue above stated. Upon that issue he told the jury that the land ploughed up within kving memory was not, in point of law, ancient pasture ; and, upon that ground, directed them to find a verdict for the defendant upon the third issue. Thereupon, Counsel for the plaintiff called upon the LORD CHIEF JUSTICE to inform the jury that, if they believed the evidence, the land, not having been broken up for thirty-five years, voL. 13. 31 L 242 COMMON LAW REPORTS. was ancient pasture, and to direct a verdict for the plaintiff on that issue. Counsel cited Morris v. Morris (a). The LORD CHIEF JUSTICE refused so to direct the jury, but reserved the point for the consideration of the Court above. The jury found a verdict for the defendant on all the issues. Serjeant Fitzgibbon, on a former day, obtained a conditional order to set aside the verdict, upon the grounds that it was against the weight of evidence, and that the LORD CHIEF JUSTICE had misÂÂdirected the jury upon the issue above stated. Against that conditional order The Solicitor-General (T. O'Hagan), with whom was J. S. Greene, now showed cause. As to the objection that the verdict was against the weight of evidence, he contended that the jury could scarcely have found a verdict for the plaintiff, even upon the evidence adduced by himself; and, as to the alleged misdirection, argued that the defendant's acts were lawful, as he had not entered into any covenant not to break up the land; and did not amount to waste, because the lands had been in tillage within living memory, and prior to the date of the defendant's lease. Such lands are not ancient meadow or pasture: Martin v. Coggan (b). The case of Morris v. Morris (c) cannot establish the plaintiff's proposition, because it appears from the judgment that " it is admitted, as between landlord and tenant, this is tillage land." In Barret v. Barret (d), Richardson, C. J., said :-" The law will not allow that to be waste which is not any ways prejudicial to the inheritance." That principle was carried farther in Doe d. Grubb v. The Earl of Burlington (e). And, in the old case of Tresham v. Lambe (f) " the judges would not " grant any writ of estrepement to the pasture, for that it *as ridge ",and furrow, and it was no ancient meadow, although that had "been...