The Irish Society v Timothy Tyrrell

• Jurisdiction: Ireland
• Judgment Date: 28 January 1865
• Date: 28 January 1865
• Court: Court of Common Pleas (Ireland)

Common Pleas.

THE IRISH SOCIETY

and

TIMOTHY TYRRELL.

Cuthbertson v. IrvingENR 4 H. & N. 472.

Jeffreys v. BucknellENR 2 B. & Ad. 278.

Strode v. SeatonENR 2 Cr. M. & R. 728.

Stroughill v. Buck 14 Q. B. 781.

Hayne v. MaltbyENR 3 T. R. 438.

Noke v. Auder Cr. Eliz. 373.

Skidworth v. GreenENR 8 Mod. 311.

Neale v. M'KenzieENRENR 2 Cr. M. & R. 84; S. C. on appeal, 1 M. & W. 747.

Bayley v. BradleyENR 5 C. B. 396.

Trevivan v. lawrence 2 Lord Ray. 1048.

Palmer v. Ekins 2 Lord Ray. 1550.

Kemp v. Goodall 2 Lord Ray. 1154.

Taylor v. LeathemENR 2 Taunt. 278.

Parker v. ManningENR 7 T. R. 537.

Walton v. Waterhouse 2 Wms. Saunders, 417 a, n. 1.

Duke v. AshbyENR 7 H. & N. 600.

Stephenson v. LambertENR 2 East, 575.

James v. Laudor Cr. Eliz. 36.

Warburton v. Ivie 1 Jones, 313.

M'Laughlin v. Craig 8 Ir. Jur. 328.

Johnston v. Grant Sir T. Ray. 252.

Roberts v. Snell 1 M. & Gr. 577.

Taylor v. NeedhamENR 2 Taunt. 278.

Mercer v. O'ReillyIR 13 Ir. Com. Law Rep. 153.

Upton v. TownsendENR 17 C. B. 30.

Walton v. WaterhouseENR 2 Saund. 418 a.

Higginbotham v. Barton 11 Ad. & Ell. 307.

Stronghill v. Buck 14 Q. B. 781.

Strode v. SeatonENR 2 Cr., M. & R. 728.

Noke v. Auder Cro. Eliz. 373.

Stevenson v. LambartENR 2 East, 775.

Swift v. Allanson Batty, 326, n.

Daniel v. Grace 6 Q. B. 145.

Roberts v. Snell 1 M. & Gr. 577.

Neale v. M'KenzieENRENR 2 Cr., M. & R. 84; S. C., on appeal, 1 M. & W. 747.

Williams v. Hayward 5 Jur., N. S. 1419.

Neale v. M'KenzieENR 2 Cr., M. & R. 84.

Mercer v. O'ReillyIR 13 Ir. Com. Law Rep. 153.

Bullen v. Mills 4 N. & M. 25; S. C., 2 Ad. & Ell. 17.

Smith v. Stapleton Plow. 434 a.

Palmer v. Ekins 2 Lord Ray. 1550.

Walton v. WaterhouseENR 1 Wms. Saund. 417.

Trevivan v. LawrenceENR 1 Salk. 276.

Kempe v. Goodall 2 Lord Ray. 1154.

Stephenson v. LambardENR 2 East. 575.

Johnson v. Grant 2 Sir Th. Raymond's Rep. 252.

M'Loughlin v. CraigIR 7 Ir. Com. Law Rep. 117; S. C. 1 Ir. Jur. N. S, 328.

Murphy v. Carey Ubi supra.

Roberts v. Snell 1 M. & Gr. 577.

Putney v. SwanENR 2 M. & W. 73.

Houston v. BarryUNK 5 Ir. Eq. Rep. 294.

Palmer v. Faussett Sm. & B. 319.

Arundel v. Arundel 1 M. & K. 316.

The Attorney-General v. Drummond 1 Dr. & W. 353.

Hegarty v. NallyIR 13 Ir. Com. Law Rep. 532.

Taylor v. ZamiraENR 6 Taunt. 524.

Skipworth v. GreenENR 8 Mod. 311.

Cuthbertson v. Irving 4 H. & 472.

Hayne v. MaltbyENR 3 T. R. 438.

Palmer v. Ekins 2 Lord Ray. 1550.

Lessee of Swift v. Allanson Batty's Rep. 326.

Higginbotham v. Barton 11 Ad. & Ell. 307.

Farquhar v. KellyIR 4 Ir. Com. Law Rep. 490.

Walsh v. Trevansion 15 Q. B. 733.

Gravenor v. Woodhouse 1 Bingh. 38.

Parker v. ManningENR 7 T. R. 539.

Gravenor v. woodhouseENR 1 Bing. 42.

Hayne v. MaltbyENR 3 T. R. 438.

Cuthbertson v. IrvingENR 4 H. & N. 472.

Duke v. AshbuENR 7 H. & N. 600.

Trevivan v. LawrenceENR 1 Salk. 276.

Palmer v. Ekins 2 Lord Ray. 1551; S. C., 2 Swanst. 418, n. 1

Syllivan v. Stradling 2 Wils. 217.

Doe v. MillsUNK 4 Nev. & M. 28.

Right v. BucknellENR 2 B. & Ad. 282.

Wivel's caseENR Hobart, 45.

The Ecclesiastical Commissioners v. O'ConnorIR 9 Ir. Com. Law Rep. 242.

Stephenson v. LambardENR 2 East. 575.

Cuthbertson v. IrvingENRENR 4 H. & N. 742; S. C., on appeal, 6 H. & N. 135.

Tomlinson v. Day 2 Br. & Bing. 680.

Smith v. RaleighENR 3 Camp. 513.

Stokes v. CooperENR 3 Camp. 514.

Neale v. M'KenzieENR 2 Cr., M. & Ros. 84; S. C., on appeal, 1 M. & W. 747.

Gardiner v. WilliamsonENR 2 B. & Ad. 336.

Vaughan v. Meyler 2 M. & Sel. 276.

Stephenson v. LambardENR 2 East, 575.

COMMON LAW REPORTS. 249 THE IRISH SOCIETY v. TIMOTHY TYRRELL.* (Common ,Pkos.) Nov. 4, 7. H. T. 1865. Jan. 24, 25, 28. E. T., May 11. DEmunnEn.-The summons and plaint stated that the defendants The plaintiffs denture held all the waste-lands, mud-banks, or slobs of the louh called ntuesed a l - g denture inarge tract of waste- Lough-Foyle, on the south side of the said lough, from opposite land to D. and R., whose as signee the defendant was. Subsequently to the date of the lease it was discovered that the lessees had never got possession of certain portions of the premises proÂÂfessed to he demised, and that those portions were in the possession of third parties, who claimed to be owners thereof in fee. One and a-half year's rent having become in arrear, an ejectment for non-payment of rent was brought, to which the de- fendant pleaded that, at the time of the making of the lease, certain per-ons (named in the plea) were, and thence hitherto have been, seised in fee, and in the lawful possession, occupation, and enjoyment of divers, to wit, 100,000 acres, parcel of the demised premises, whereby the lessees or the defendant, or anyone claiming under the demise, did not or could not enter into possession of the said parcel, &c., but were kept excluded therefrom; and although the defendant, and those claiming under the demise, were ready and willing and desirous of entering, &c., yet that from the time of the demise they were kept out of the possession, &c., by the persons aforesaid. Replication.-That, the lease being by indenture, the defendant was estopped from pleading the defence. Held, on demurrer, per IVIoNA.tutx, C. J., and KEOGH, J. (dissentience CHRISTIAN, J.)-That the replication was good. That the defence was equivalent to a plea of eviction by title paramount ; and therefore that the rent was apportionable. That the case came within the operation of the 44th section of the Landlord and Tenant Act ; and therefore that the plaintiffs could recover in the present action the possession of the portion of the demised premises which the defendant actually got possession of. And that (following the case of Mercer v. O'Reilly, 13 Ir. Com. Law Rep. 153), the plaintiffs were entitled to have judgment for the apportioned rent. Per CHRISTIAN, J.-That the replication was bad; for that, to constitute an estoppel between landlord and tenant, the possession by the tenant of the thing demised is essential. That the defence was not equivalent to a plea of eviction by title paramount ; but that the case came within the authority of Neale v. MKenzie, and that the rent was suspended. And that, assuming the case came within the 44th section of the Landlord and Tenant Act, the plaintiffs should have pursued the terms of that section, and claimed only the portion of the demised premises which the defendant actually got possession of. Neale v. M'Kenzie (2 Cr., M. & R. 84 ; S. C., 1 M. & W. 742) observed on. * Before IVIONAHAN, C. J., KEOGH and CHRISTIAN, JJ. VOL. 16 32 L 250 COMMON LAW REPORTS. M. T. 1864. Culmore Fort down to the river Roe, and also from the river CommonPleas. Roe to Magilligan-Point, so far as the same might be embanked THE IRISH without injury to the navigation of the lake and river of Lough SOCIETY V. Foyle; and upon the north side of the Lough-Foyle from Culmore T YRRELL. Fort down to Greencastle, such slobs as might not be detrimental to the fisheries ; and all and singular other the waste-lands, mud-banks, and slobs (if any) comprised in a certain agreement of the 21st of May 1838 between the said plaintiff and Thomas Isaac Dimsdale and John Robertson, and thereby agreed to be demised to the said Thomas Isaac Dimsdale and John Robertson ; part of which said waste-lands, mud-banks, and slobs have been since reclaimed; together with all houses and buildings thereon, and all ways, watercourses, commons, profits, commodities, advantages, and appurtenances whatever, to the said waste-lands, mud-banks, or slobs belonging or in anywise appertaining, situate in the county of Donegal, and city and county of Londonderry, as tenants to the plaintiffs under a lease, at the yearly rent of 800 ; and that the sum of 1200, being for one year and a-half of such rent due and ending on the 31st of December 1863, was due to the plaintiffs, &c. Defence.-That the rent of the said premises, or any part thereof, is not in arrear, because the defendant says that, although the said plaintiffs, by the lease in said plaint mentioned, demised to the lessees therein mentioned, whose assignee the said defendant Timothy Tyrrell now is, all the waste-lands, mud-banks, or slobs of the lough called Lough-Foyle, on the south side of said lough, from opposite Culmore Fort down to the river Roe, and also from the river Roe to Magilligan Point, so far as the same might be embanked without injury to the navigation of the lake and river of Lough-Foyle; and upon the north side of the Lough-Foyle, from Culmore Fort down to Greencastle, such slobs as might not be detrimental to the fisheries, and all and singular other the waste-lands, mud-banks, and slobs, with the appurtenances, as in the said plaint mentioned,-yet that, before and at the time of the making of the said lease, the wardens and commonalty of the Mystery of Fishmongers of the City of London, and the wardens COMMON LAW REPORTS. 251 and commonalty of the Mystery of the Grocers of the City of M. T. 1864. CommonPleas. London, and divers other persons, to wit, one Thomas Scott, David Kirkpatrick, Samuel Elder, James Galbraith, and others, THE IRISH SOCIETY were, and each of them was, and from thence hitherto have and V. has been, and still are and is, seised in their and, his demesne TYRRELL. as of fee, and in the lawful possession, use, occupation, seisin, and enjoyment of divers, to wit, 100,000 acres, parcel of the said demised premises in the plaint mentioned, included in the said lease, and over and above and exclusive of all tenths mentioned and provided for in or by the Lough-Foyle and Lough-Swilly Reclamation Acts, or any of them ; and over and above and exclusive of all portions of the said demised waste-lands, mud-banks, or slobs, granted, or agreed to be granted, by way of compensation or otherwise, to any persons or person other than the said lessees; whereby the said lessees, or any of them, or the said defendant, or any other person claiming under or by reason of the said demise, or through or...