William Allen, a Minor, by Clara Delinda Allen, His Mother and Next Friend. v Timothy Carver

• Jurisdiction: Ireland
• Judgment Date: 03 February 1863
• Date: 03 February 1863
• Court: Queen's Bench Division (Ireland)

Queen's Bench

Before O'BRIEN, HAYES, and FITZGERALD, JJ.

WILLIAM ALLEN, a Minor, by CLARA DELINDA ALLEN, his Mother and next friend.

and

TIMOTHY CARVER.

Whistler v. PaslowENR Cro. Jac. 487.

Lifford's caseUNK 11 Rep. 49, b.

Legh v. HealdENR 1 B. & Ad. 622.

Hide v. PaslowENR Popham, 146.

Evans v. EvansENR 2 Camp. 496.

Jenney v. Brooke 6 Q. B. 323.

Goodright v. VivianENR 8 East. 189.

Doe v. LockENR 2 Ad. & El. 705.

Legh v. HealdENR 1 B. & Ad. 622.

Doe v. PriceENR 8 C. B. 893.

Goodright v. VivianENR 8 East. 190.

Rogers v. PriceENR 8 C. B. 894.

544 COMMON LAW REPORTS. II. T. 1863. Queen's Bench WILLIAM ALLEN, a Minor, by CLARA DELINDA ALLEN, his Mother and next friend, v. TIMOTHY CARVER.* (Queen's Bench.) Feb. 3. Action by THE plaintiff's grandfather, William Allen, owner in fee, devised lessor against „co„ part of the lands of North Liscongill, in the county of Cork, to lessee, nant to repair. the defendant, for a term (still unexpired) of years, "saving, The lease of L excepted "a11 "excepting, and always reserving out of this demise, unto the timber and timber-like "said William Allen, his heirs, &c., all timber and timber-like trees, now standing and "trees now standing or growing thereon, with full liberty of growing there on," and con- " ingress and egress for the said William Allen, his heirs, &c., tained the usual covenant "or any other person or persons authorised by him or them, to keep in re pair. The " to enter into or upon said demised premises, and the same summons and " to cut, fell and carry away, with horses, men and carriages, plaint set out the covenant, "at his and their will and pleasure, without the hindrance or assigning as breaches that "interruption of the said Timothy Carver, his executors," &c. defendant suf fered said pre. Timothy Carver, the lessee, covenanted (inter alia) for himself, mises, and the fences thereof, his executors, &c., that he or they would, " during the continuance to be out of repair, and cut "of this demise, preserve, uphold, support, maintain and keep down, and al lowed to be cut " the said demised premises and every part thereof; and all im down from off the said lands, " provements made and to be made thereon, in good and sufficient a great number of large and " order, repair and condition, and at the end of the term hereby valuable trees, &c. At the " granted, or other sooner determination of this demise," should trial, defend ant's Counsel objected to evidence as to the value of the trees cut down, on the ground that they were excepted out of the demise. Verdict for the plaintiff, 10 for the general neglect, and 60 for the trees cut down. The Court was now moved to reduce the verdict by the latter sum. Held, that the cutting down the trees excepted was not an act of waste, and, therefore, not a breach of the covenant to repair. Held also, that on the pleading as framed, the defendant was not called on to raise the question as to the exception of the trees, &c., before the trial. * Before O'BRIEN, Mums, and Fazointsz.n, COMMON LAW REPORTS. 545 and would "so leave and yield up the same unto the said William Allen, his heirs," &c. By a subsequent lease, the plaintiff's father, who, in the meanÂÂtime, by the death of his father intestate, had inherited the property, demised certain other lands called South Liscongill, with a dwelling-house and offices, to the defendant, for a term (still unexpired) of years. That lease contained a like reservation of all timber and timber-like trees, &c.; and a like covenant by the lessee to preserve, uphold, &c. The plaintiff, by the death of his father intestate, inherited the property ; and, being a minor, brought this action by his next friend. The first paragraph of the plaint set out in terms the lessee's, covenant in the first lease, as stated above; and assigned as a 'breach that the defendant did not preserve, &c., but, on the contrary, did suffer and permit said premises, and the fences...