Johnston v The Dublin and Meath Railway Company

• Jurisdiction: Ireland
• Court: Rolls Court (Ireland)
• Judgment Date: 10 December 1866
• Date: 10 December 1866

Rolls.

JOHNSTON

and

THE DUBLIN AND MEATH RAILWAY COMPANY

Lessee Dawson v. M'Intyre 7 Ir. Law Rep. 552.

Winch v. WinchesterENR 1 V. & B. 375.

Ranken v. East and West India Docks CompanyENR 12 Beav. 298.

Greenwood v. AtkinsonENR 5 Sim. 419.

Reidy v. PierceIR 11 Ir. Com. Law Rep. 361.

Morrow's EstateUNK 14 Ir. Ch. Rep. 44.

Palmer's case 5 Co. 24.

The Marquis of Salisbury v. great Northern Railway Co.ENR 5 C. B., N. S. 174.

Heywar's caseENR 2 Co. 37; Co. Lit. 145 b.

Heywar's case 2 Co. 38 a.

Moore's reportENR Moo. 86; Bend. 148; 1 And. 1.

Stukely v. ButlerENR Hob. 174.

Heyward's case 2 Co. 36.

Palmer's case 5 Co. 25.

Busset v. Maynard Cro. Eliz. 819.

CHANCERY REPORTS. 133 missed; but if it was, he had no doubt that it should be reinstated. 1866. Rolls. In Carey v. Browne there was no order giving time to file affidavits. His Honor thought that the proper order to make on ARMSTRONG v. the motion was an order similar to that made in Montgomery v. ARMSTRONG. Mayne. Judgment. It is ordered by the Right Honorable the MASTER OF THE Order. ROLLS, that the cause petition in this matter be reinstated, and that the time for setting down the same be and is hereby extended to the first day of next Hilary Term : and it is further ordered, that the said respondent do have one month's time from the date hereof, if so advised, to file affidavits in this matter : and it is further ordered, that the petitioner do pay to the respondent the sum of £5 for costs of his appearing on this motion. Rolls Order Book, 7, N. S., f. 193. JOHNSTON THE DUBLIN AND MEATH RAILWAY COMPANY. Nov. 6. Dec. 10. db being leenatst A LEASE was made by Edward Sterling to Henry Cooper, dated the 24th of April 1843, of " that part of the lands of Clonea otherwise of thirty acres of the lands Stirling, in the barony and parish of Dunboyne, and county of of S., with a clause against alienation, as signed his interest to B, without the consent of the landlord. The petitioner obtained against B a judgment, which was registered as a mortgage against " an estate or interest in that part of the lands of S. containing twenty-five acres, or thereabouts, situate," &c. A Railway Company took a portion of the lands from B, and paid him the purchase-money. The lease was afterwards evicted for non-payment of rent ; and the landlord took possession of the land, except the portion sold to the Company. A petition was filed against the Company to raise the amount of the judgment, by a sale of the land sold to them. Held, that the judgment was not a charge on the land sold to the Company. The legal effect of the affidavit was a grant of twenty-five acres, at the election of the grantee ; but that election could not be exercised against the land sold to the Company. Sernble-B should have been a party to the suit. Quare-Whether the whole interest under the lease was not determined by the assignment to B, or by the eviction for non-payment of rent? 134 CHANCERY REPORTS. Meath, formerly in the occupation or possession of James Bryan, late in the occupation or possession of Patrick Clarke, his undertenants or assigns, containing 30 acres, Irish plantation measure, be the same more or less, as now in the occupation or possession of the said Henry Cooper," for thirty-one years, at the yearly rent of £58. 15s. The lease contained a stringent covenant against alienaÂtion without the consent in writing of the landlord. On the 30th of September 1848 the lessee assigned his interest under the lease to Robert Cooper. In March 1859 the petitioner recovered a judgment against Robert Cooper. On the 4th of June 1859, there being £25 due on the judgment, the petitioner registered it as a mortgage against Robert Cooper. The affidavit stated that Robert Cooper is possessed of certain tithes in Kildare, " and also an estate or interest in that part of ,the lands of Stirling, containing 25 acres or thereabouts, situate in the parish and barony of Dunboyne and county...