Sir James Strong and Others, Executors of John Maxwell, in Error v John Kean and Jane His Wife, Administratrix of William Craig, Assignee of Joseph Craig
| Jurisdiction | Ireland |
| Judgment Date | 30 May 1849 |
| Date | 30 May 1849 |
| Court | Court of Exchequer Chamber (Ireland) |
Exchequer Chamber.
Freeman v. Lord Waterford 1 Sch. & Lef. 451, note.
Baynhamƒ€™s caseENR 5 Coke, 36, b.
Holt v. Meddowcroft 4 M. &. Sel. 467.
Rex v. PerryENR 5 T. R. 453.
Fermor v. Dorrington Cro. Eliz. 222.
Rex v. TremarneENR 5 B. & C. 254.
Dromgoold v. Horne 1 H. & Br. 412.
Farmer v. MountfordENR 8 M. & W. 266.
Street v. BlayENR 2 B. & Ad. 456.
Wilkinson v. TerryENR 1 M. & Rob. 377.
Williams v. MostynENR 4 M & W. 145.
Feize v. ThompsonENR 1 Taunt. 121.
Lopdel v. HallENR 4 C. B. 598.
Broughton v. Conway Dyer, 240, a.
Browning v. Wright 2 B. & Pul 13.
Nind v. MarshallENR 1 Br. & B. 319.
Foord v. Wilson 2 B. Moo. 592.
Howell v. RichardsENR 11 East, 633.
Smith v. ComptonENR 3 B. & Ad. 189.
Hesse v. StevensonUNK 3 B. & P. 565.
Mƒ€™Alpine v. MagnallENR 3 C. B. 517.
Bridgman v. Holt Show. P. C. 115; S. C. Bul. N. P. 316.
Chichester v. Philips T. Jo. 148.
Newcastle v. BroxtoweENR 4 B. & Ad. 281.
De Medina v. NormanENR 9 M. & W. 827; 1 M. G. & S. 402.
Mildmayƒ€™s caseUNK 1 Rep. 176.
Williams v. Burnell 1 M. G. & S. 11.
ENR See Robinson v. Harman, 5 Exch. Rep. 854.
Peacocke v. MonkENR 1 Ves. sen. 128.
Baker v. DruryENR 1 B. & C. 704.
The Duchess of Kingstonƒ€™s case 2 Smith L. C. 459, 469.
The Sheffield and Manchester Railway Company v. WoodcockENR 7 M. & W. 574.
Freeman v. CookeUNKENR 12 Jur. 77; 18 Law Jour. N. S. 114; 2 Exch. Rep. 654.
In Error from the Court of Queenƒ€™s Bench.
CASES AT LAW. 93 T. T. 1849. Exch. Chant. (eytbrquer (Minim.* SIR JAMES STRONG and others, Executors of JOHN MAXWELL, in Error, v. JOHN KEAN and JANE his Wife, Administratrix of WILLIAM CRAIG, Assignee of JOSEPH CRAIG. (In Error from the Court of Queen's Bench.) Feb. 2, 3. May 30. Tuts was an action brought by the defendants (plaintiffs below) as By a lease bearing date the personal representatives of the assignee of the lessee of a lease the 1st of No vember 1800, granted by John Maxwell, against the plaintiffs (defendants below) J. M., in consideration as his executors for a breach of covenant to renew. of the yearly rent and cove- The declaration contained four counts. nants, demised The second count(upon which the only question in the case to J. C. cer- tain premises arose) averred, that by indenture of lease bearing date the 1st of (excepting mines and mi nerals, and in general all and every thing excepted from the lessor in his lease from the Provost anal Fellows of College), Habenduni for twenty years at a certain rent and a small triennial fine, and covenanted that at the expiration of the said term he, his executors, admiÂÂnistrators or assigns, would renew the then present lease or any future lease which should be granted of the premises by adding thereto such number of years as in that present demise, viz., twenty years, and so on at the end or expiration of any term he the lessor, should and would make out a new lease or renew the present lease for twenty years. The lease also contained a covenant by the lessee to pay the rent and renewal fines, and a covenant by the lessor for quiet enjoyment as against his own acts and the acts of those deriving under him. In an action for a breach of this covenant for renewal, brought by the personal representative of the assignee of the lessee against the personal representatives of the lessor ; the declaration stated a covenant to renew, and a covenant by the lessee to pay a renewal fine ; it then averred entry by the lessee, an assignment by him on the 17th of April 1820, the entry and death of the assignee, and that the plaintiff had talcrn out administration to him and entered and became possessed. It then averred the death of the lessor and the expiration of the term, and payment of the renewal fines. Breach-in the terms of the covenant, that the defendants would not renew, although requested so to do. To this declaration the defendant pleaded non est factum to the lease and assignÂÂment, and plene administravit. The plaintiffs, in support of their case, proved the lease of the 1st of November 1800, and an endorsement thereon not signed, purportÂÂing to be a receipt for 950, also a receipt for 950 signed by the lessor, stating that to be the consideration for the lease ; and assets being admitted ; Held, the BALL, J., and LEVROY, B., absentibus. T. T. 1849. Exch. Chase. STRONG V. KEAN. 94 CASES AT LAW. November 1800, John Maxwell demised to Joseph Craig, his executors, administrators and assigns, all that and those that part of the town and lands of Moononey therein described (excepting as therein excepted), Habendum for twenty years from the 1st of November 1800, at a certain rent. And that the said John Maxwell did thereby for himself, his executors, administrators and assigns, covenant, promise and agree to and with the said Joseph Craig, his executors, administrators and assigns, that at the expiration of the question in such a state of facts being a question merely as to the amount of damages, that receipt was evidence upon that issue. The plaintiffs then produced a witness, who was asked what was the value of such a farm held under such a lease, assuming that the lessor held either immediately or derivatively under the College, and taking into consideration the risk on the one side that the College might not renew, and the chance on the other that they would P Held, the question for the jury being one of value, a hypothetical question of that kind was properly allowed.-[RICHARDS, B., dissentiente.] The plaintiffs next proved the value of the interest, that the College were in the habit of renewing, and applications made for a renewal, and closed their ease. Held, in such state of facts, the plaintiffs not having given evidence of any evicÂÂtion of the interest in the lease by the lessor or those claiming under him, the Judge was not bound to direct the jury to find for nominal damages only. Held also, that it was not incumbent on the plaintiffs at the expiration of the lease to give notice to the defendants that they were desirous to obtain a renewal and ready to accept the same, or to prove a tender of a renewal. Held, per PIGOT, C. B., such objection could not be raised by exception, such an issue in fact not being raised by pleadings. Held also, that the covenant declared on being an absolute unqualified covenant to renew, was not qualified by the restricted covenant for quiet enjoyment contained in the lease, and that there was no variance between the covenant declared on and that contained in the lease. Held also, that the swearing of a talesman on a jury was not ground of error, as it appeared by the record that he was duly elected, tried and sworn ; to support such objection it ought to appear that he was not on the panel, or competent to be drawn as a talesman. The defendants then proved several leases granted by the College to the defendÂÂants, and to those from whom they derived title ; that the lessor in the lease of 1800 had paid them rent, and that the interest in the lease of the 1st of November 1800 had been evicted by an ejectment on a title paramount, and a recovery was had in that ejectment, and called for a direction for nominal damages. Held, that in such a state of facts the Judge was not bound to direct the jury to find for nominal damages only.-[CnamrroN, J., and RICHARDS, B., dissentienÂÂtides. PENNEFATHER, B., dubitante.] Held, per PENNEFATHER, B., exceptions ought to be clear, and leave no doubt as to what the Judge was called upon to do ; and distinct exceptions to different portions of a Judge's charge ought not to be allowed. Held also, that as it appeared that when J. M. made the lease he bad a lease from the College, and as J. M. had covenanted to grant a renewal, and as no disturbance had taken place during the existence of that lease, and as renewal fines had been paid by the lessee to J. M., and a notice to quit had been served by the executors of J. M. on the representatives of the lessee, the Judge was right, on the question as to the amount of damages, in leaving it to the jury to say whether J. M. had title to make a lease, and that such evidence was not inconsistent with the fact that leases had been made during that period by the College to other parties and not to J. M., as the jury might presume those leases to have been in trust for J. M.- [CRAMPTON, J., and RICHARDS. B., ilissentientibus .] CASES AT LAW. 95 demise then granted, to wit the said demise for the term of twenty T. T. 1849. Exch. Chant. years aforesaid, he the said John Maxwell, his executors, administra- tors or assigns, would renew the then present lease, or any future STRONG v. lease which should be granted of the premises, by adding thereto such KEAN. number of years as in that present demise-that is to say, the term and space of twenty years, and so on at the end or expiration of every term, lie the said John Maxwell, his executors, administrators or assigns, should and would make out a new lease or renew the then present or any future lease which should be granted of the said premises for the term and space of twenty years, and so on to be continued. And that Joseph Craig did thereby for himself, his executors, administrators and assigns, covenant, promise and agree to and with the said John Maxwell, his executors, administrators and assigns, to pay unto John Maxwell, his executors, &c., the sum of 1. 9s. 2d. every three years as a fine, and to be continued during that then present demise. It then averred entry by Joseph Craig-assignment by him to William Craig on the 17th of April 1820-the entry of William Craig, and his death in the same month and year, intestate ; that the plaintiff Jane took out administration to him and entered and became possessed of said term...
To continue reading
Request your trial