Lessee of The Right Honorable John Thomas Baron Trimlestown, and Others, v Henry Kemmis, Esq.

• Jurisdiction: Ireland
• Judgment Date: 30 June 1842
• Date: 30 June 1842
• Court: House of Lords (Ireland)

House of Lords.

Lessee of the RIGHT HONORABLE JOHN THOMAS BARON TRIMLESTOWN, and others,

and

HENRY KEMMIS, Esq.

380 CASES AT LAW. 1842. House of Lords. In the Voitoe of %orbs. IN ERROR FROM THE COURT OF EXCHEQUER CHAMBER IN IRELAND, Lessee of the RIGHT HONORABLE JOHN THOMAS BARON TRIMLESTOWN, and others, v. HENRY KEMMIS, Esq. June 29, 30. The Courts Tuts action of ejectment on the title was brought in the Court of below, and the Court of Ex- Common Pleas in Ireland in 1833, to recover the manor, towns, and chequerCham- lands of Roebuck in the county of Dublin, described, as to part of the her, in Ireland, have no juris- same, as formerly in the possession of Patrick Dease, afterwards of diction,by yea Thomas Kemmis deceased, and then of Henry Kemmis (the defendant); son of the Irish statutes 28 G. 3, c. 31, a. 1, and 40 G. 3, c. 39, to pronounce any judgment or order, which they had not power to pronounce by common law before the passing of the said statutes,t-and therefore, the said Court of Exchequer Chamber had no power to select any particular portion of the evidence set forth in the bill of exceptions, not being the subject-matter of an exception taken at the trial, and to affirm or reverse the judgment of the Court below, upon arguments built upon such portion of the evidence alone, or upon considerations of its weight or hearing upon the merits of the case. The mutilation of a deed is no reason against its admissibility in evidence, if it came out of the proper custody, where there is enough to show that it had been a deed-that it had been executed-and that it had conve:,,ed an estate ; so that the upper part of the first skin of an indenture, bearing date in 1679, which had originally consisted of two or more skins, and a hich appeared to have been severed with a sharp instrument, and on the hack of which were the names of the witnesses attesting the execution, though not of the executing parties, and coming from the proper custody, and which appeared to convey estates in pursuance of certain articles of 1668, which had been previously given in eviÂÂdence, was held to have been properly admitted in evidence. In an ejectment brought by J. T. Lord T., claiming as tenant in tail under a settlement of 1686, against H. K., who claimed as assignee of T. K., the original lessee of N. Lord T., the father of the said lessor of the plaintiff, a conveyance in fee by the said N. Lord T., to a third party S. R., of the lands in question, subject to the said leases, which, with other leases made by the same party and his immediate ancestor, were contained in a schedule annexed to the deed, was held to have been properly admitted in evidence. A deed of compromise of an equity suit made between the lessor of the plaintiff and a third party, was held to he admissible in evidence, where its relevancy to the issue apÂÂpeared by the bill', answer, and decree filed and pronounced in said suit, which were next offered in evidence-the said bill having been filed by the administrator pendente lite of said N. Lord T., against his agent, for an account, among other things, of the proceeds of the said sale to 3. R.; and the said bill, answer, and decree, were held to have been properly admitted in evidence, as explaining the effect of the said deed of compromise. A 1- ,! in Chancery filed by the lessor of the plaintiff against T. K., the original lessee of the lands in question, but after his assignment thereof, and amended against the said H. K., the dc'endaut, was held to have been properly admitted in evidence, to show the subject-matter of the said suit, and that the plaintiff claimed as heir-at-law of his father-the same having been, in an earlier stage of the suit, put in evidence by the plaintiff himself, for the purpose of reading admissions of the defendant in his answer thereto. Semite, that the same was admissible for the purposes aforesaid, even if it had not been previously given in evidence by the plaintiff. An abstract of the title of N. Lord T. to the lands in question, found among the family CASES AT LAW. 381 as to other parts, as formerly in the possession of Nicholas, the late Lord Trimlestown, afterwards of said Thomas Kemmis, and then of the said Henry Kemmis ; and as to the remainder, formerly in possession of ThoÂÂmas Dillon, afterwards of Thomas Kemmis, and then of the said Henry Kemmis. The said Henry Kemmis appeared to defend for the whole premises, and to the declaration pleaded not guilty ; and the issue thereÂÂupon came on to be tried at the Sittings of Nisi Prius on the 18th of June 1835, before the Honorable Arthur Moore, one of the Justices of the Common Pleas. Upon the trial, in support of the plaintiff's case, it was proved that in the year 1686, and also on and before the 4th of September in that year, Robert Lord Baron Trimlestown was possessed of the lands in the declaration mentioned. The pedigree, as set out in the next page, was also proved.* An entry made by the lessor of the plaintiff on the lands in question on the 10th of April 1833, and the commencement of the action on the 13th of the same month and year, were also proved. A parchment writing, partly defaced and decayed by damp, was then produced from the proper custody, which purported to have been a deed dated the 4th of September 1686, and made between Robert Lord TrimÂÂlestown, of the one part, and William Earl of Limerick, and Nicholas Lord Netterville, of the other part, and was a conveyance to the said Earl of Limerick and Lord Netterville, to the use of the said Robert Lord TrimÂÂlestown, for life ; remainder to his son Matthew for life; remainder to the first and other sons in tail ; remainder to John for life, and to his first and other sons in tail, with divers remainders over. This deed, which professed papers in the possession of the said T. K. (the land and law agent of the said N. Lord T.), after his death in 1823, and which abstract contained notes in the handwriting of the said T. K., the father of H. K., was held not to have been admissible in evidence against the said H. K., who claimed under an assignment executed in 1804, there being no evidence of the time at which the said entries in the handwriting of T. K. were made. Though declarations made by a party in possession of an estate are admissible against his own interest, yet a declaration by a party in possession, of what he has heard another person say, is not admissible, to cut down or defeat his estate. A declaration by a party in possession is inadmissible in reply, so far as it is only conÂÂfirmatory of the plaintiff 's original case; and the issue being whether a life estate bad been surrendered in 1747 to R. Lord T., one of the plaintiff's ancestors, an admission by the son of the said R. Lord T., while in possession, of the relative interests of the said R. Lord T. and the said tenant for life, at the time of the death of the said R. Lord T.'s father in 1746, was held to have been properly rejected in evidence, as being immaterial to the issue. A special verdict in a suit respecting the lands in question, between one of the lessors of the plaintiff 's ancestors, while in possession, and a third party unconnected by blood or estate with the defendant, was held to be inadmissible in evidence against the defendant. • See Pedigree, next page. ijebtgree. 1. ROBERT, Niuth BARON TRIMLESTOWN, Died 1st May 1687. 2. Matthias, died 1692, unmarried and without issue. 3. 1 John Baron Trimlestown, Mary Barnwall, died 1746. I died 1771. 1 4. 9.1 1st wife Robert Baron Trimlestown 2nd wife. John, died unmarried died 1779. and without issue. 10. 1 Richard died in lifetime of Thomas Baron Timlestown. 1 1 5. John, died in his 16. Matthias, died in 7.1 Thomas Baron Trimlestown, 8. 1 Joseph died in 1782, 11. 1 Nicholas became Baron father's lifetime, without issue. 1767, without issue. died in 1796, without issue. without issue. Trimlestown on death of Thomas Baron Trimlestown in 1796, died in 1813. 1 12. 1 JOHN THOMAS BARON TRIMLESTOWN, lessor of the plaintiff. CASES AT LAW. 383 to be executed in pursuance of certain articles of the 20th day of July . 1668, contained a jointuring power to the tenants for life, in the following 1842 H. of Lords. words :-" Provided always, and it is the true intent and meaning hereof, LORD TRIM "and of all the parties hereunto, that the said Matthew and John Barn- LESTOWN " wall, or either of them, may make such jointure or jointures, provision V. KEMMIS. " or provisions, for his or their younger children, as the said William " Earl of Limerick, and Nicholas Lord Viscount Netterville, or the surÂÂ" vivor of them, or the heir or heirs of the survivor of them, shall nominate, "appoint and approve of; any thing, clause, or limitation herein contained " to the contrary notwithstanding." The Counsel for the plaintiff then produced from the same depository, a parchment writing partly defaced by damp, but from the alleged enrolment thereof, which was also proved, it appeared to have been an indenture of the 23rd of March 1703, made between the said John Lord Trimlestown of the one part, and Thomas Earl of Limerick, John Lord Netterville, and Dame Thomasina Barnwall of the other part, purporting to be an appointment under the power contained in the last-mentioned deed, and whereby the said lands of Roebuck and the lands of NewhagÂÂgard were appointed to the said Earl of Limerick, Lord Netterville, and Dame Thomasina Barnwall, and their heirs, during the life of the said Mary Lady Trimlestown, the wife of the said John Lord Trimlestown, to the use of the said Mary for life, to and for settling and securing to her a jointure of 400 per annum, &c. A bill filed in Chancery on the 14th of October 1816, by John Thomas Lord Trimlestown, the lessor of the plaintiff, against Thomas Kemmis, the father of the defendant, and afterwards amended against the said defendant and his wife, and their answer thereto filed in 1829, were then...