Right Hon. Sidney Herbert v E. Madden and Others

• Jurisdiction: Ireland
• Judgment Date: 03 June 1856
• Date: 03 June 1856
• Court: Exchequer (Ireland)

Exchequer.

Right Hon. SIDNEY HERBERT

and

E. MADDEN and others.

Jackson's Charities v. Jackson Hayes & Jo. 442; S. C., 2 Law Rec., N. S., 36.

Delap v. Leonard 5 Ir. Law Rep. 287; in Error, 6 Ir. Law Rep. 473.

Lessee Westropp v. Moore 2 Fox & S. 363.

Jackson's Charities v. Jackson Ubi sup.

Delacour v. M'Clarthy Hayes & Jo. 474.

28 COMMON LAW REPORTS. E. T. 1856. Assistant-Barrister, but that, under the peculiar circumstances of Exchequer. this case, the decree of the Assistant-Barrister is not conclusive. BETTY v. NAIL. PIGOT, C. B., mentioned Doe v. Griffith (a), in which it was held that proof, by one of a family, that a younger brother of the person last seised had gone abroad, and that the repute of the family was that he had died there, and that the witness had never heard in the family of his having been married, was prima facie evidence that the party was dead without lawful issue, to entitle the next claimant by descent to recover in ejectment. (a) 15 East. 293. June 2, 3. Ejectment for non-payment of rent, under the statutes, does not lie upon a concurÂÂrent or reverÂÂsionary lease. The proceedÂÂings in ejectÂÂment are subÂÂstituted only for entry ; and where a lessor hath no right of entry, his proper course to determine the estate for condition broÂÂken is to make a claim. Where a PriÂÂvate Act of Parliament gave power to a tenant for life to make Right Hon. SIDNEY. HERBERT v. E. MADDEN and others. EJECTMENT for non-payment of rent.-The summons and plaint stated that six years' arrears were due. The defendant pleaded, firstly, denying the tenancy, and secondly, pleaded a lease, dated the 1st of July 1790, by Lord Fitzwilliam to Wm. Whittingham, of the lands and premises in question, for three lives, or the term of 78 years commencing from the 29th of September 1789, if the said lives should expire before the expiration of that time ; and that the said W. Whittingham entered into possession under the said lease, and afterwards died previous to the year 1825, having first devised all his interest in the said demised premises to Jane Whittingham, who entered into possession of the said premises, by the assent of the said William's executors ; and that she afterwards married John Burne, and that they (the said John and Jane Burne) by a sub-lease, dated the 24th of December 1825, demised to Peter leases either concurrent or in possession, so as in every such lease there should be reserved a condition of re-entry :-Held, this should be construed reddendo singula singulis, and did not make such a condition in a concurrent lease granted under the power effectual; so as to give the lessor a right of entry. COMMON LAW REPORTS. 29 Madden the said premises from thenceforth, for One life, or thirty- T. T. 185G. Excheglter. one years commencing from the 25th of March then next, if the said life should expire within that time ; that the said last-men- v. HERBERT tioned life dropped previous to the 8th of May 1839 ; and that, MADDEN. by indenture of lease, dated on that day (the lessor's reversion having in the meantime become vested in the plaintiff), and whilst both said leases of 1790 and 1825 were outstanding, he (the plaintiff) demised unto the said Peter Madden the same premises, and not more ; and the defence then stated defendant's title to the premises, as the personal representative of said Peter Madden. To this second defence the plaintiff replied that, before and at the time of making of a certain Private Act of Parliament of the 3 & 4 W. 4, passed for granting further powers to lease certain parts of the devised estates of the late Lord Fitzwiliiam, then deceased, the plaintiff was, under the will of the said Lord FiezÂÂwilliam, seised in his demesne as of freehold, for his life, of divers hereditaments set forth in the schedule to the said Act, and, amongst them, of the premises demised by the said lease of 1839 ; and that by the said Act, after reciting as therein, it is enacted that it should be lawful for the plaintiff, during his life, and after his decease for the several other persons therein authorised, by indenture or indentures, sealed and delivered, and attested by two or more witÂÂnesses, to demise, lease or grant all or any part of the messuages or dwelling-houses, hereditaments, &c., specified in the schedule thereto, at any time thereafter, before the several leases of the same hereditaments which, at the time of the passing of the said Act were subsisting, should respectively have expired by efflux of time ; and either upon the surrender, or without requiring the previous surrender, of such subsisting leases thereof respectively ; unto any person or persons, for any number of years not exceeding ninety-nine years respectively ; for the purposes in that behalf in said Act mentioned : and so, as that in every such lease to be made, there should be contained a condition or clause of re-entry, in case of the non-payment of the rent or rents to be thereby reserved, or of the breach or non-performance of any of the covenants, provisoes and conditions therein mentioned: and so, as that no lease 30 COMMON LAW REPORTS. T. T. 1856. should be made by virtue of the said Act, of any hereditamenta Exchequer. which should be held for any previous term or terms of years, of HERBERT which more than sixty years should be then unexpired. That at v. MADDEN. the time of making the said lease of 1839, the said lease of 1790, in the second defence mentioned, was a subsisting lease of certain of the hereditaments, set forth in the said schedule to the said Act, for an unexpired term of less than sixty years, to wit, for twenty-eight years, of which the premises demised by the lease of 1839 were parcel : and that by indenture, dated the 8th of May 1839, after reciting the said...