Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUQLASS BOARDMAN FIRST 0£AN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS "ffiteaSAj"- court 3 1924 01 fa"" Exchequ 772 :^i . \\ Cornell University W Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017827712 THE IRISH REPOETS. IN THE COURT OF EXCHEQUER CHAMBER, AND IN THE COURT FOR LAND lOASES RESERVE^ O'SHEA, Appellant ; MEARA, Eespondent (1). Registry Ap. Agistment Contract — Occupier. ' M. was a rated occupier in respect of three fields, which were grazed by L. T^o\- 12. under a parol yearly contract. There was a gate to each field, of which the keys were given up by L. each year. The rates were paid by M., and L. paid £14 a year for the grazing. M.'s brother, who acted as his agent, kept a master key of the outer and principal gate, but did not inform L. that he did so. L. made no use of the fields except for grazing. Held, thafrM. was entitled to remain on the list of rated occupiers. vASE stated by the Eevising Barrister for the Borough of Youghal. The Respondent's name appeared in the special Kst of rated occupiers. He was objected to by the Appellant, who was on the list of voters for the borough of Youghal. It appe9,red that for several years Edward Lynch grazed the rated premises, consisting (1) Before Kbogh, O'Beien, O'Ha- and Hughes, BB. CAN, and George, JJ., Fitzgsbald Vol. I. 1 V. Meara. 2 THE lEISH REPORTS. [I. R. Begiitry Ap. of three fields, under a parol contract for grazing, which termi- 1868. nated on the 1st of February in each year ; there was an iron gate O'Shka to each field, fastened by a padlock; the keys were delivered to Lynch, and retained by him until the termination of each year, when, in pursuance of the contract, he gave them up, or was wiUiag to give them up, to Meara; the rates and tdxes were paid by Meara ; and Lynch, the tenant, paid fourteen pounds each year for the grazing. Meara's agent in August last year gave a receipt to Lynch for £7, in which he stated it was " a half-year's rent" of the three fields ; and iu that receipt credit was given to Lynch for the full amount of poor rates and county cess, which Meara omitted to pay, and which Lynch had paid. On the part of the Eespondent, it appeared that, when the keys were delivered to Lynch at the time of the first contract, his bro- ther, who acted for him at the time, kept a master key of the outer and principal gate, but did not inform Lynch that he had such a key ; that Lynch made no other use of the fields than grazing them ; that the Eespondent resided ia Cork, and his son and bro- ther managed the property for him ; that there was no contract for grazing at the termination of the year ending the 1st of February, 1868, but that Lynch contiuued to use the fields as before, and in August last paid the £7 as above. It was contended, on the part of the objector, that the dealing between the Eespondent and Lynch established the relation of landlord and tenant, and that the Eespondent was not entitled to the franchise, either as tenant or owner, by reason of the aforesaid occupation of Lynch. The Eevisiug Barrister held that it was a grazing contract merely, and that the Eespondent did not cease to be occupier. Butt, Q. C, and William M. Johnson, for the Appellant. Li this case there was a clear parting with the possession — the case is a stronger one than the cases of conacre. Lynch could have maintained trespass against any one entering even with the assent of Meara: Crosby y. Wadsworth (1). In the conacre cases, the owner prepared the land for the oulti- (1) 6 East, 602. Vol. I.] REGISTRY AND LAND ACT APPEALS. 3 vators : M^Keowne v. Bradford (1). That does not overrule Barnard'' s Eegittry Ap. Case (2), because in Barnard's Case there was a parting with the ^^^^' possession, as there is here : see Brangan v. Briscoll (3) ; Comiskeifs O'Shba Case (4). Meara's brother keeping the key of the outside gate jjj^'^ua. without the knowledge of Lynch cannot affect the question. Andrews, Q. C. (with YaaiExham, Q. C, and W. Green) y for the Bespondent. The Eespondent has, prim& facie, a right to be retained on the registry. This was only a mode of using the land, and no parting with the possession : Mulligan -v. Adams (5). It is not so strong a case as that of a contract for mowing. The earlier cases on con- acre were reconsidered in M^Keowne v. Bradford (6) ; and in that case, at p. 180, Fitzgerald, J., says that the_Aot contemplates that every rated owner or occupier who has been rated under that Act continues to possess the right of being on the registry vxAH some change has taken place by which another person is substituted under such circumstances as would entitle him to be rated for his occupa- tion ; and Lynch could not be rated for these premises : Booth v. M'Manus (7). Keogh, J. We are aU. of opinion that the decision of the Ee- visii^ Barrister in this case was right, and should be affirmed. Decision affirmed. Attorney for the Appellant : James Barry. Attorney for the Eespondent : M. Green. (1) 7 Ir. Jur. N. S. 175. (5) 8 L:. L. R. 132. (2) 7 Ir. C. L. 374. (6) 7 Ir. Jur. N. S. 175. (3) 6 Ir. Jur. N. 8. 333. (7) 12 Ir. C. L. 418. (4) 6 It. Jur., N. S. 109. 1 + THE I ISH REPORTS. [!■ R- Registry Ap. AHEAEN AND Others, Appellants ; TEOT, Eespondent. 1^^^- Rated Occupiers— Notices of Claim— Omitting Value of Premises— Amending jq-QY 12, I'V inserting Value. The claimants claimed as rated occupiers. The value of the premises was omitted in the special list, and also in the notices of claim. It appeared that the rated value of the premises was over £4 in each, case, and that the premises had been occupied for the proper time : — Held, that the Revising Barrister should have amended by inserting the rated value in each case. Consolidated appeal from the Eevising Barrister for tlie Bo- rough of Toughal. In these cases the'names of the Appellants were omitted from the published list of rated occupiers. Each served notice of claim to have his name inserted in the special list of persons entitled to vote for the election of a member for the borough. The Appellant, Stephen Ahearn, claimed to be placed on the list as a rated occupier of a house, offices, and yard at Cross-lane, North, in the borough. The Appellant, Michael Draddy, claimed to be placed on the list as a rated occupier of a house, offices, and yard. Cross-lane, North, in the borough. The Appellant, John Keeffe, claimed to be placed oH the list as a rated occupier of a house and premises in Hanover-street, in the borough. In these cases the names of the Appellants appeared on the special list of claims, but the rated value of each set of premises did not appear therein ; and, on reference to the notices of claim served by the Appellants, the rated value was omitted in each of them ; and, upon this ground, the Eevising Barrister held that the names of the Appellants should be expunged. It appeared that the Appellants occupied the respective premises, in respect of which they claimed, for the required time ; that the rated value of the premises occupied by the Appellant Stephen Ahearn was £4 10s. yearly ; that the rated value of the premises occupied by the Appellant Vol,. I.] REGISTRY AND LAND ACT APPEALS. 5 Michael Draddy was £4 10s. yearly; and that the rated value of the Begistry Ap. premises occupied by the Appellant John Keeffe was £5 yearly. 1868. The Eevising Barrister was called on to insert the rated value aheaen in each case, which he refused to do. Andrews, Q. C, Hxham, Q. C-, and W. Green, for the Appel- lants. The claim to be put on the Register as a rated occupier was quite sufficient. The 31 & 32 Vict. c. 49, s. 3, enacts that the pre- vious Act regulating registration (13 & 14 Vict. c. 69) shall be read as if £4 had been substituted for £8. No one could misun- derstand the claim, because the claimants are on the special list of claimants published under the 31 & 32 Vict. c. 112, Sch. B, No. (4), which is of persons claiming in respect of premises valued over £4 and under £8. There is no column for rated value in that list of claimants (31 & 32 Vict. c. 11% Sch. B, No. 4). Butt, Q. C, and William M. Johnson, for the Eespondent. The nature of the qualification and the description of the pro- perty must be inserted : 31 & 32 Vict. c. 112, s. 15. Unless the claim gives the necessary information, the town clerk cannot fill up the list. This loose form of claim would open a door to fraud. Keogh, J. We are of opinion that the decision of the Eevising Barrister should be reversed. No one could be deceived by tha manner in which the claim was made. Decision reversed^ Attorney for the Appellants : M. Qreen. Attorney for the Eespondent : J. Barry. V. Teot. THE IRISH REPOETS. [I. R. JRegistry Ap. HILGEOVE, APPELLANT; O'SHEA, Eespondent. 1 868. Effect of Deed stated in Case — Deed itself not Incorporated, Nov, 12. ipijQ ReTising Barrister stated in the case the effect of a deed relating fo the premises in respect of which the Appellant claime(^to be rated, but did not in- corporate or identify the deed : — Held, that the Court could not look at the deed itself, and would not send back the case to the Revising Barrister to amend. Appellant's name appeared on tlie list of voters for the Bo- rough of Toughal, as a rated occupier, jointly with Patrick Ken- 3Qedy, of house and yard valued at £25. It appeared that Patrick Kennedy held the premises under a lease for a term of years, and built the house at his own expense,' in 1860 ; that the Appellant assisted in the building, that he and his wife resided in the house with Kennedy ; and that in 1861, Ken- nedy, by deed dated the 15th of July in that year, for the conside- rations therein, conveyed and assigned his interest in the premises to the Appellant, upon trust, for the use of Kennedy during his life. It appeared that Kennedy carried on trade in the house on his own acootmt ; that the Appellant and his wife assisted Ken- nedy in the business and also in housekeeping ; and that the Ap- pellant exercised the trade of shoe and bootmaker in the house. It was contended, on the part of the Appellant, that as he resided in the house with Kennedy and was rated jointly with him, he was a joint tenant, and entitled to the franchise. On the part of the objector, it was contended that the Appellant was merely a trustee and not entitled to the franchise, and that he had no present interest in the rated premises, either as tenant or owner. The Eevising Barrister held on this ground that he was not entitled to the franchise. Andrews, Q. C. Exham, Q. C, and Green, for the Appellant. The Eevising Barrister put a wrong construction on the deed. [FiTZGBKALD, B. The Barrister has stated certain facts, and it is on those facts we must decide.] [Keogh, J. He has not referred Vol. I.] REGISTRY AND LAND ACT APPEALS. 7 us to or identified any particular deed.] If the Court are of opi- Registry Ap. nion tliat they cannot look at this deed on the case stated, the case 1868. should be remitted. Hilgrove Butt, Q. C, and William M. Johnson, not called on. Keogh, J. "We are unanimously of opinion that we cannot look at the deed, and we do not think we should remit the case to the Revising Barrister. Attorney for the Appellant : M. Green. Attorney for the Respondent : J. Barry. Not. 12. M'NIFFB, Appellant; PALMER, Respondent. Registry Ap. 1868. Claimant as rated occupier becoming entitled to premises out of which he claims by Marriage within twelve months before the 2QthofJuly — 13 Sj- 14 Vict. c. 69, s. 14 Respondent claimed as rated occupier in respect of certain premises, of which he had not been in occupation for twelve months previous to the 20th of July, 1868, but which he had acquired by marriage settlement within that time. Held, that the proviso in the 13 & 14 Vict. c. 69, s. 14, applied to persons claiming to be registered as rated occupiers. Appeal from the decision of the Revising Barrister for the Borough of Sligo. George Dodwell Palmer appeared on the List No. 11, and duly claimed, pursuant to the provisions of the 13 & 14 Vict. c. 69, to have his name inserted in the list of persons entitled to vote at an election for the borough, as joint rated occupier with T. D. Browne of certain premises therein mentioned, and rated at £20 10s. Od. ; and duly served on the Town Clerk of the said bo- rough a notice in writing of his said claim ; and having been entered by the said Town Clerk on the said list of claimants duly prepared and published by him, as directed by the Statute, and bearing date 6th day of August, 1868, the claim was objected to by Patrick M'Niffe, a person on the list of voters for the said borough of Sligo. Due service of the claim and of the objection was mutually admitted. 8 , THE IRISH REPORTS. [I. R. Registry Ap. THe claimant was of full age, and not subject to any legal incapacity, 1868. and was on the 6th day ofAugust, 1868, and still is in the occupa- M'NiFFE tion of the premises mentioned in his claim as joint occupier with Palmek. ^^ s*^*l Thomas D. Browne. All the poor-rates which had become payable in respect of said premises previously to 1st January, 1868, had been duly paid befqre 1st July, 1868 ; the premises mentioned in the said claim are duly rated under the lasferate for the time being under the Acts passed for the more effectual relief of the poor in Ireland, at the annual sum of £20 10s. Qd., and in that rating Thomas D. Browne and Sarah Jane Browne are stated to be the joint-rated occupiers thereof. The entire of the said premises are situated within the said borough of Sligo. It appeared in evidence that the said Thomas D. Browne and his daughter, Sarah Jane Browne, held the said premises jointly, as joint tenants, for a term stiU subsisting and imexpired ; but whether such term was for lives renewable for ever, or for a term of years, did not appear. On the 17th of March, 1868, the claimant, George Dodwell Palmer, intermarried with the said Sarah Jane Browne, and on the occasion of that marriage a deed of mar- riage settlement was executed, by which a life estate in the said premises so held by Sarah Jane Browne was limited to the claimant, and, subsequently to his marriage, the claimant entered into the occupation of the said premises jointly with the said Thomas D. Browne ; and is still in such occupation thereof. On the 23rd of July, 1868, the claimant duly served a claim on the Guardians of the Poor of the Sligo Union, claiming to have his name inserted as joiat occupier of the said premises, pursuant to the provisions of the 13 & 14 Vict. 0. 69, s. 110. On the part of the objector, it was contended that the claimant was not entitled to be registered, inas- much as he had not been in the actual occupation of the said pre- mises as joint rated occupier thereof for twelve months next pre- vious to the 20th of July, 1868. In all other respects the qualifi- cation of the claimant was admitted to be complete. The Eevising Barrister held that, as the premises had come to the claimant on the 17th of March, 1868, by marriage settlement, he was entitled, in respect thereof and under the circumstances aforesaid, to be registered as a voter in the register then next to be made under the aforesaid Statute. The question Vol. I.] REGISTRY AND LAND ACT APPEALS. '9 of law for tlie decision of the Court was, whether the occupation of Begistry Ap. the said premises by the claimant since the 17th of March, 1868, 1868. was,, under the circumstances aforesaid, and under the provisions of M'Niffb the 14th section of the 13 & 14 Vict. c. 69, of sufficient length to en- Palmbe. title him to be registered as a voter in respect thereof. Butt, Q. C, and Neligan, for the Appellant. Sections 13 & 14 of the 13 & 14 Vict. c. 69, regulate the length of possession required to entitle claimants of various franchises in counties and boroughs respectively. Sec. 13, in relation to counties, provides that no person shall be entitled to be registered as a free- holder, &c., unless he shall have been in possession, &c., thereof for six months previous to the 20th of July in each year, or as a lease- holder, &c., or occupier, unless he shall have been in possession, &c., for twelve months before the 20th of July in each year; pro- vided that when any lands, &c., which would otherwise entitle the owner, holder, or occupier thereof to vote, shall come to any per- son within such respective periods of six or twelve months respec- tively, by descent, &c., marriage settlement, devise, &o., he shall be entitled to be registered. The 14th section (as to boroughs), contains, amongst other pro- visions, a similar limitation, requiring leaseholders and occupiers to have been in possession for twelve months previous to the 20th of July, but in the proviso at the end of the section it adopts different language, and enacts that wherever any lands, &c., which would otherwise entitle the " owner, holder, or possessor" thereof to be registered, shall come to any person within such respective periods of six and twelvemonths, by descent, &c., marriage settle- ment, &c., such person shall be entitled to vote. The word occu- pier is designedly omitted from the 14th section. J. Robimon, Q. C, and Shekleton, for the Eespondent, were not called on. Decision affirmed. Attorney for the Appellant : J. D. M'Dermott. Attorney for the Eespondent : Sarlowe Phibhs. 10 THE lEISH REPORTS. [I. K. Registry Ap. M'NIFFE, Appellakt ; WILSON, Eespondent. 1868. Notice of objection posted with only the name of the street, no post town appearing Nov. 12. in the direction, A notice of objection was merely directed T. Cftrren, Charles -street, with- out the addition of any post town. It appeared from the stamped duplicate notice of objection that it was posted in Sb'go, and it also appeared Charles- street was within the postal delivery of the Borough of Sligo, and was in the town of Sligo, and that it was the custom to put letters for delivery within the postal delivery of Sligo without the addition of the word Sligo. Held, that the notice of objection was sufficient. Thomas Ctjeeen's name was inserted in the special list, No. 3, Schedule B, of the 31 & 32 Vict. c. 112, prepared and published by the Town Olerk of the borough of Sligo, as directed by the Statute ; and was duly objected to by Thomas E. Wilson, a person on the list of voters for the borough of Sligo. The Eespondent gave in evidence, in support of his objection, the notice of objection duly stamped with the stamp of the post office of Sligo ; by the endorsement on which it appeared that it was directed to said Thomas Curren, at Charles-street, without the addition of any post town. It also appeared that Charles- street was the place of abode of said Thomas Curren, as set out in said list, and was within the postal delivery of the borough of Sligo, and was in the town of SHgo. It appeared by the evi- dence of the postmaster of Sligo, that it was the custom to put letters into the post office of Sligo to be delivered within the postal delivery of the borough of Sligo without the addition of the word Sligo ; that if he had no reasonable doubt of the address of the party, he would take the letter to deliver it, without Sligo upon it ; that, in any case, he would send the letter with the carrier to try and find the person to whom it was addressed ; but that if the letter was addressed to a place beyond his postal district, and had no post town on the address, he would consider it an improper ad- dress, and would not take it to send. It was contended on behaK of Thomas Curren, that as the stamped notice of objection had no post town endorsed on it, it was Vol. I.] REGISTRY AND LAND ACT APPEALS. 11 not duly directed as required by the Statute. Under those ciroum- Registry Ap. stances, the Eevising Barrister held the stamped notice given in evi- 1868. dence sufficient, and that it was duly directed and addressed ; and he m'Nifi'b required said Thomas Curren to give evidence of his right to w "gQ„ have his name retained on the list ; and on his declining to do bo, relying on the insufficiency of the notice of ohjeotion, the Eevising Barrister expunged the name from the list. Appeal from this decision. The question of law for the decision of the Court was, whether the notice of ohjeotion was sufficient. Butt, Q. C. {Neligan with him), for the Appellant. The right of proving service of an ohjeotion in this way is given by the 113th section of the 13 & 14 Yiot. c. 69, and that section must be strictly followed. The objection must be right on the face of it, and the question is the same as if it had been posted in Dublin. It is to be directed to his place of abode as described in the published list, and that list is headed, " list of persons, &c., in this borough:" surely if the objector wrote from Dublin this notice would not be within the section. Falkiner, Q. C, and Shekkton, contra. O'Brien, J. We cannot exclude from our minds the place where the notice of objection is posted, and which must always appear from the stamped dupHoate. Decision affirmed. Attorney for Appellant : J. D. M'Dermott. Attorney for Eespondent : Marlowe Phibbs, 12 THE IRISH REPORTS. [I. R. Registry Ap. MEADE, AppELi.ANT ; COOPER, Respondent. 1868. Revising Barrister — Notice of Claim — Name of the Claimant on the List. Nov. 13. A notice of claim as a lodger under the 31 & 32 Vict. c. 49, s. 5, Sch. D, No. I , omitted to state the " calling" of the witness ; l?ut the name of the claimant appeared in the Town Clerk's special list : — ■ Held, that the Revising Barrister had no jurisdiction to reject the claimant for the defect in the notice of claim. Appeal from the decision of one of the Revising Barristers for the Borough of Duhlin. The case stated hy the Revising Barrister was as follows : — The name of John Meade appeared on the special list (form No. 10), No. 267, as a claimant to vote in respect of lodgings oc- cupied by him at number 15, Patrick-street, for more than twelve months prior to the 20th of July, 1868. Notice of objection to the name of the said John Meade was duly proved. The " calling" of the witness to the notice of claim of the said John Meade was wholly omitted from the face of said claim, and the claim was objected to on this ground. The Revising Barrister ruled that the Act of the 31 & 32 Yict. c. 49, and Schedule D thereto, required the " calling" of the witness to the signature of the notice of claim to appear on the face of said notice ; and same not appear- ing thereon, rejected the claim, and expunged the name of John Meade from said list, although parol evidence was given as to the calling of said witness. The question of law was, whether it is necessary that the '' calling" of the witness to the signature of the claimant to the notice of claim should appear on the face of the claim ? Butt, Q. C, Watei's, and Coppinger, for the Appellant. The omission in the claim was not a matter for the Revising Barrister at all ; that is a matter entirely between the voter and the Town Clerk. The case of Davies v. SopUm {1) decided this (1) 3 C. B. N. S. 376 ; 27 L. J. C. P. 6. Vol. I.] REGISTRY AND LAND ACT APPEALS. 13 point in England. Williams, J., says in that case : " It may be Registry Ap, the notice (-which in that case was not signed by the claimant) 1868. ■was so imperfect that the overseers were not bound to put the name Meadb on the list ; but, they having done so, fieri non dehuit, sed factwrn q^q^^^ valet ;" and the name being on the list, aU the Eevising Bar- rister has to do is to see whether the qualification as stated is sus- tained. That decision has been followed in Ireland, in Barnetfs Case (2), and O'Brien v. Fenton (3). The public have got all the notice they are entitled to. Macdonogh, Q C, FalMner, Q. C, Noncood, Atkinson, and J, Clarke Lane, for the Respondents. Those cases were all decided on the old Acts. This person claims a new franchise, created by the 4th section of the 31 & 32 Yict. c. 49, and the 3rd clause of that section makes it part of his qualification that he shall have claimed to be registered as a voter — ^that means, that he shall have claimed in the manner prescribed by the Act ; and the 5th section enacts that the claim shall be in the form No. 1, Schedule D., and that form has a blank for the residence and caUing of the witness to the claim. Under the old Act (13 & 14 Vict. c. 69, Sched. B, No. 11), the list of claimants had a column for entering the Town Clerk's objections ; under the present system, the existence of a proper claim is made part of the qualification, and the sufficiency of the claim is not for the public officer, but is left to the party seeking the franchise. These claims as lodgers are to form a separate list (31 & 32 Yict. 0. 112, s. 36), and no person is to be registered unless he shall prove such claim— ihai is, such claim as is prescribed by the Act, not " such qualification." 31 & 32 Vict. c. 112, s. 37. It is different from any other franchise. [O'Hagan, J. Under the old Acts, if the Town Clerk published the claim, and there was no objection served, the claimant, ipso facto, was entitled to be registered. I think the Legislature intended by the 37th section to alter that, and require him to prove his qualification. The 37th section first speaks of persons claiming to be entitled, and then says they must prove such claim.] Under the old Act the olaina was a document (2) 7 Ir. C. L. R. 369. (3) 15 Ir. C. L. 380. 14 THE IRISH REPOBTS. [I. B. Meade V. COOPEB. Megistry Ap. which the Bevising Barrister had no jurisdiction to look at. ^^^^- [Fitzgerald, B, You assume that proof of the claim and proving that the party rightly made his claim are the same thing. As I understand that section, if the Clerk has received the claim, the party is exempt from proving that he rightly made the claim.] The claim is made part of the qualification, not by the registration, but by the Eeform Act. Piehard v. Bretz (1) was referred to, Keogh, J. We are unanimously of opinion that this case comes within the rule in Davies, Appellant; Hopkins, Respondent; and that case has been followed in this country ; therefore, the decision of the Barrister must be reversed. Decision reversed. Attorney for the Appellant : M^Sfieehy. Attorney for the Eespondents : J. F. Goodman. Registry Ap. 1868. Nov, 13. MATHEWS, Appellant; MAGEATH, Eespondent. Lodger Franchise — Description of Landlord omitted from Claim and List. f The description of the landlord was omitted from a lodger's notice of claim and also from the Town Clerk's Ust, and for the omission in the notice of claim an objection was taken to it ; and the Revising Barrister decided in favour of the objection, and declined to register the claimant, who, consequently, appealed : — ' Held (FiizsEEAUD, B., diss."), that the case was ruled by Meade, App, ; Cooper, Sesp. ante, 12. Held, per Fitzgeeald, B., that the description having been omitted from the list, the claim, as stated in the Ust, was open to objection, and that the Revising Barrister should decide upon it as an objection to the claim as stated in the list ; and for this purpose might have regard to the notice, as, if the notice was not conformable to the list, it might be proper to amend the list by the notice. Appeal from the decision of one of the Eevising Barristers for the Borough of Dublin ; and he stated the following case : — The name of Thomas Mathews appeared on the Special List, No. 282 (Form No. 10), of Claimants for the North City Ward, in re- spect of lodgings occupied by him at 15, Denmark-street, for more (1) 5 H. & N. 9. Vol. I.] REGISTRY AND LAND ACT APPEALS. 15 than twelve months prior to the 20th of July, 1868. Notice of Registry Ap. objection to the name of the said Thomas Mathews was duly ■^^^^' proved. The description of the landlord of said house was wholly Mathbws omitted, not only from the list, but from the notice of claim, and Haqbath. same was objected to on that ground. In aU other respects the claimant duly proved his claim. The Eevising Barrister ruled that " The Eepresentation of the People (Ireland) Act, 1868," and the schedule thereto, required the description of the_ landlord to be set forth on the face of said claim, and same not appearing thereon, the Revising Barrister rejected the claim, and expunged the name of said Thomas Mathews from said Hst. The question of law was, whether it is necessary that the description of the landlord should appear on the face of the claim ? Butt, Q. C; Waters and Coppinger, tov Appellant. Though the omission appeared on the Town Clerk's list as well as on the claim, this case also comes within the rule in Meade v. Cooper, which the Court have just decided, because the objection made before the Eevising Barrister, and to which he yielded, was that the notice of claim was defective. If the objection had been to the list, we could have given evidence to supply the omission, and called upon the Eevising Barrister to amend. Falkiner, Q. C. (with him Macdonogh, Q. C., Norwood, Atkinson, and Clarke Lane). This differs from the previous case, because, the omission ap- pearing on the face of the Hst, the Eevising Barrister had juris- diction to consider the objection. Keogh, J. With the exception of Mr. Baron Fitzgerald, we are of opinion that this case is not distinguishable from the ease of Meade v. Cooper, which we have already decided. Fitzgerald, B. In the decision already made, and in which I acquiesced, I held myself bound to follow the decision of the English Court of Common Pleas, as heretofore adopted and ap- plied by this Coiu't. What I consider to have been established by those decisions is, that each of the claims stated in the Town Clerk's list of claimants 16 THE IRISH REPOETS. [I. K- Registry Ap. must be taken to have been made upon a notice haying the formal 1868. requisites of the Statute, *and that objections to the notice, founded Mathews on defects in those formal requisites, are precluded. Magkath What is properly before the Eevising Barrister is not the notice but the claim as Mated in that list. If the'claim as stated m the list be open to objection, such ob- jection is not, I think, precluded, and the objection thereto taken ought to be entertained and decided on, not as an objection to the notice, but to the claim stated in the list. In that state of things, however, it may be perfectly right that the Barrister should look at the claim as stated in the notice, because if the list and notice are not conformable, it may be proper to amend the list by the notice, and in this case the Barrister informs us that the claim is made in the notice just as it is represented in the list. The question of law which he refers to us is, I think, rightly referred, not as a question arising on the notice or on the Hst, but on the claim — ^that is to say, the claim as stated in the list. I think, therefore, the validity or invalidity of the objection made ought to be considered by us, notwithstanding the decisions referred to. I offer no opinion on that point, argument not having been allowed. O'Bkien, J. The question reserved is as to the claim. I do not rule anything as to the list. Decision reversed. Attorney for the Appellant : M'Sheehy. Attorney for the Eespondent : J. F. Goodman. Vol. I.] REGISTRY AND LAND ACT APPEALS. 17 KELLEHEE, Appfxlant ; TAEEANT, Eespondent. Resktry Ap. 1868. Name ef Claimants in successive numbers on the Town Clerk's List — Successive Occupation — Power of Amendment. Wov. 1*. The name of the Appellant appeared in two successive numbers in the Town Clerk's list as a rated occupier of premises of sufficient value. It appeared that he had moved, within twelve months immediately preceding the 20th of July, 1868, directly from one set of premises to the other, and his occupation ofthe two sets of premises extended over more than twelve months : — Held, diss. Fitzgeeali), B., that the Revising Barrister should have admitted the claimant as holding premises in successive occupation ; although there was no notice of claim for that purpose. Per FiTZGEKALD, B. That the omission to claim as successive occupier was an omission of the essence of the qualification, and one which the Revising Barris- ter had no power to supply. Case stated by the Eevising Barrister for the Borougli of Toughal. The Appellant appeared on the Town Clerk's list of voters in No. 128, as rated occupier of " house and small garden," South Main-street, Youghal, valued at £10 ; and in No. 129, for " house and yard," in Mall-lane, Toughal, valued at £10 10s. He was objected to by the Eespondent in each number ; and on the evidence it appeared that Appellant was on the registry of last year for the premises in South Main-street, and occupied them until March last, when he removed directly into the premises in Mall-lane, where he had resided ever since. The Eevising Barrister rejected him for the premises in South Main-street, because he had ceased to occupy them in March last, and for the Mall-lane premises because he was not twelve months in occupation before the 20th of July last. The Barrister was then called upon to admit the Appellant as an occupier of " premises held in immediate succession." The Barrister refused to do so, on the ground that a notice of claim should have been served for that purpose. ]3uti, Q. C. (with him William M. Johnson), for the Appel- , lant. Vol. I. 2 18 THE IRISH REPORTS. [I. R. Begistry Ap. The South Main-street premises do not form part of the claim ; 1868. they are only put in to make up the twelve months ; the claim is Keilehee really one of successive occupation. The Barrister should have Tamant 8'ii^^ argued by Mr. Holmes very ably, that there was no proof given of usage in reference to lands held under instru- ments similar to this on the estate ; but I think it lay upon the landlord to show, as a matter of fact, that the usage did not pre- vail as to holdings so held. If he could have offered evidence that, according to the usage of the estate, the custom of tenant-right was not recognised or allowed in the case of lands held under simi- VOL. 1. 10 138 THE IRISH REPORTS. [I. R. Land Court. lar contracts, he might have succeeded ; but no such proof was 1872-3. attempted. It was contended that ipso facto the execution of this Stevensoit agreement put an end to the usage, by reason of its own provisions Tb IraTRiM inconsistent with that usage, and not by anything dehors the instrument. In my judgment that contention fails ; and, therefore, I decide in favour of the claimant. MoRBis, J. : — As well as I can collect from the facts which transpire on the case, it would appear that the claimant, a Presbyterian clergyman, was, previous to the year 1867, tenant from year to year of a holdiog on the estate of the Respondent, — for how long, or at what rent, does not appear. That, on the 6th of April, 1867, the Eespondent served the claimant with notice to quit for the 1st of November then following ; that, pending the currency of the notice to quit, viz., upon the 24th of September, 1867, the claimant entered into a written agreement, signed by him, regulating his future tenancy^ and under which he has since held. I shall presently have occasion to refer to it in detail. From the claim it further appears that the claimant was served with a notice to quit, dated the 21st of August, 1871 — for what assigned cause, when served, or when to expire, is not stated : from^ the date, however, it is plain it could expire on the 1st of May, 1872, at the earliest ; the claim is dated the 1st of November, 1871 ; the notice of dispute the 2nd of December, 1871 : from these dates it appears the parties claimant and respondent were at issue as to the validity of the claim, at least five months before the notice to quit could expire, and for which five months^ at all events, the claimant was legally entitled to hold. The Case finds that the holding was subject to " the Ulster Tenant Right Custom." I suppose that means, was so at the time of the writ- ten agreement of September, 1867, and though not so stated, it has been conceded that "the Ulster Tenant Right Custom" means the usage stated in the claim. The question before us is, " Does the agreement of September, 1867, disentitle the claimant from relying on that usage ?" or in other words, "Does the agree- ment by express words or necessary implication exclude the usage to which at the time of its execution the holding as an ordinary Vol. I.] REGISTRY AND LAND ACT APPEALS. 139 yearly holding was subject." Now, what was that usage ? It is Land Court: stated in the claim as follows : — " Whereby the tenant in occupa- 1872-8. tion, on being about to be evicted or disturbed by the act of his SiEtENsoif landlord, or to quit his holding, was permitted (and is now entitled) t tI' ' to sen his interest, commonly called his " tenant-right" in his hold- ing (subject to the rent to which he is liable, or such fairly valued rent as Shall |,be settled from time to time), to any solvent tenant to whom the landlord shall not make reasonable objections, or on resumption of the said holding by his landlord, or if his landlord has indicated his intention to resume the same, is entitled to the value of the said tenant-right interest, as if sold to such solvent tenant." That is, the claimant alleges a usage " of a right to sell his holding," on the contingencies either of eviction or disturbance, or of a voluntary quitting by the claimant, or if resumed by the landlord, to be paid by him as if sold. What the " resumption" of the holding means, as contra-distinguished from an eviction or voluntary quitting, has not been even suggested during the argu- ment, although upon some assumption that there is a difference, the judgment of some members of the Court is founded. How can a landlord resume possession against the will of the tenant, except by legal eviction, and how can he legally evict without resumption ? The language of a notice to quit is a demand from the landlord to his tenant to yield up possession. I know but three modes whereby a party, out of possession, can resume it. 1st, by the party in possession voluntarily yielding up ; 2nd,, by taking possession by force ; 3rd, by recovery by legal process. There is no pretence here of any amicable arrangement, such as the first mode ; no operation Tmder any lex loci from, the neighbourhood of the locm in quo to Lough Swilly was resorted to, such as the second mode. The third mode only remains, viz., legal process of notice to quit ; but, indeed, it doe»_not require this inductive mode of arriving at this result, for the claimant sets out in his claim that it was upon the service of notice to quit, and the refusal to allow him to sell, that his modest claim of £350 accrued, and he offers to accept " the usage and per- mission to sell his holding" in lieu of his claim. He there restates the usage he claims, viz., a right to sell his holding. Before con- sidering the agreement in detail, and contrasting its terms with the usage claimed, a general reference to the position of the parties Vol. I. 11 140 THE IRISH REPORTS. [I. R. Land Court, under the Land Act is necessary. Up to a recent period, it would ^^^^~^ • be considered trifling with an auditory if you laid down a doctrine Stevenson which was a truism, viz., that a written agreement hetween land- Ld. Leitkim. lo^d ^^^ tenant was to be construed and acted upon according to the intention and expressed meaning of the parties, as it would be in an agreement between parties in any other relation. This is so no more, for now a man caplible of entering into any other contract under the sun is rendered statutably incapable of con- tracting with his landlord on certain points. The agreementwe have to consider, in so far at least as it relates to the Ulster Tenant Eight Custom, trenches on none of the statutable protection against his own weakness cast round a tenant ; and indeed the claimant is not one of the poor and ignorant whom the clause of the 3rd section of the Land Act was, I suppose, intended to protect — he is a gen- tleman of education and position — ^yet he even, deprived of his claim for tenant-right by the operation of his agreement, can fall back on a claim for disturbance, and obtain as full benefit as would, under any circumstances, the humblest in the other three less favoured provinces in this portion of the United Kingdom called Ireland. The reverend claimant and the noble Respond- ent being thus, in September, 1867 (to use a figure of speech probably more than ordinarily applicable), at arm's length, entered into the following agreement. [The learned Judge read the agreement.] It is worthy of consideration that, although the claimant had at that time thirty-seven days of his old tenancy to run, he is not stated in this agreement to be in possession at aU. The tenancy created is a very peculiar one ; it is determinable on six months' notice ending on ani/ gale day. The rent of £18 5s. is to be paid above aU taxes, even Poor's rate ; the last half-year is to be paid in advance ; most stringent clauses as to mode of culti- vation ; a rent three times the original to be recovered on breach of any of the agreements ; a clause of re-entry, on the insolvencyj bankruptcy, &c., of the tenant. Whatever inconsistency it might be contended arose between some of these clauses and the usage claimed, is unnecessary to consider, because the Respondent mainly relies upon two other clauses, and contends that the one, in express terms, and the other, by necessary implication, excludes the usage claimed. The first of these is the clause in these words : " and that Vol. I.] ^ REGISTRY AND LAND ACT APPEALS. X41 he shall not assign, sublet, let in cou-aore, or for a crop, or subdivide Land Court. for grazing, or part with the possession of the said land, or any 1872-3. part thereof." This is, on the clear grammatical construction of the Stevenson earlier part of the agreement, an independent agreement, and is not ^ , "• • J v iT- T „ ... ....„, Lb. Leiteim. governed by the words "permission in writing." The second clause relied on by the Eespondent is the one at the end relating to improvements. It has not been even alleged that on the estate of the Defendant there was ever any usage (of the sort claimed) applicable to tenants holding under such agreements as the one in question, or that there was any usage except in cases of ordinary tenants from year to year ; but the contention, as argued on the part of the claimant, has been, " that the usage found to exist on ordinary tenancies from year to year is not inconsistent with the agreement in ques- tion." To assist in the determination of this question reference was made to several cases (most of them are collected in the valuable note to Wigghsworth v. Dallison. 1 Smith's L. Cases, Ed. of 1867, p. 546), viz., Senior v. Armitage, Webb v.Plummer, SoMing V. Pigott, Roberts v. Barker, Sutton v. Warren, Faviell v. Oaskoin, Muncey v. Dennis, Sumfrey v. HaU, Wilkins v. Wood, Roxburghe v. Robertson, Gordon v. Robertson — all cases on the admissibility of evidence of usage for the purpose of annexing incidents to or ex- plaining written contracts between landlord and tenant — and the counsel for the claimant and the Eespondent respectively have re- Ked upon analogies deduced from them in relation to the present case. I do not intend to refer further to these' cases. The only assistance they afford is, in my opinion, the establishment of this principle — That usage vidll annex as incidents to a written contract matters with respect to which it is silent and which may be consistent with the terms of the instrument, but that no evidence can annex a usage which is inconsistent with the terms of the written instrument. That there is this analogy between these cases and the Ulster Tenant Eight Custom as incident to a yearly tenancy was decided by the Lord Chancellor in the remarkable case of The Estate of Lord Waterford (1) : he says — " The cases in ^gland are not without their value as illustrating the effect of customs in creating rights incidental to tenancies;"and again, at page (1) I. R. 5 Eq. 442. 11 + 142 THE IRISH KEPORTS. [I. R. Land Court. 444, he says— " The principles of the English decisions seem to be of 1 1872-3. force to show that the right arising from the Ulster Custom must Stevenpon be dealt with merely as an incident to the tenancy to which it is Ld Leitrim ^tt^ched, and cannot be affected by the conveyance of the Landed Estates Court so long as that tenancy remains guarded and intact." If this decision of the Lord Chancellor, which was the decision of the Court (though dissented from by the Lord Justice, as I shall refer to) is binding upon us — I ask is a usage to sell, when evicted or upon leaving voluntarily, consistent with an express contract " not to assign, sublet, or part with the possession" as an ordinary tenant from year to year is entitled to assign, sublet, and part with possession ? This agreement takes away that right ; yet it is to be decided that the claimant, on being served with a notice to quit in August, 1871, could say, as he did say on the 1st of November by his claim, that he had a right to sell his holding, the assignment that he would attempt being wholly null and void under the Landlord and Tenant Act, 23 & 24 Vic. c. 154, s. 10, as decided in Clifford v. Eeilly {V), a,nd. Donoughmore y. Forrest (2) ; nay more, it would follow that he could sell if never disturbed by his landlord, but that for his own purposes he was desirous of voluntarily quitting his holding. It appears to me that the usage of a right to sell is as inconsistent with the clause in the agreement as is the affirmative to the negative of any proposition ; and the words of the Lord Chan- cellor in the case of The Duke of Roxburgh v. Robertson (3) — "we have here to construe a written contract, and if the Scotch law is to be ad- ministered on the same principles as English law, or any law founded on principle, we must hold that the engagements of parties to each other by the express stipulations of a written contract exclude the consideration of the custom of the country" — appear to me, changing the word " Scotch" into " Irish," to describe accu- rately this case. It scarcely becomes necessary to refer to the other clause in the agreement as to improvements, and I should not, but that Dr. Ball in his argument for the claimant referred us to the opinions of an eminent statesman. I trust we are not to be influenced here by such considerations ; but as they are referred (1) I. R. 4 C. L. 218. (3) 2 Bligh. 0. S. 167. (2; I. R. 5 C. L. 443. Vol. I.] REGISTRY AND LAND ACT APPEALS. 143 to, I find that eminent statesman, in the corrected report of land Court. his speech, says of the Ulster Tenant Right Custom, "It in- l8'72-3. eludes two elements — it includes compensation for improvements, Stevenson and it includes the price of good-will." I agree entirely with that lj,. Leitrim. definition, and accept these as the two component parts of the claim made. I have disposed of the component part of good-will. How does the agreement deal with the other component part— com- pensation for improvements ? [The learned Judge read the clause as to improvements.] Has not this agreement thus expressly dealt with the two characteristics of the usage by a contract hy the tenant not to claim either of them ? There is again the clause of re-entry in the eveht of insolvency, &c., of the tenant — is such a clause consistent with the tenant's assertion of a right to sell his holding even on such contingencies, — can his right to sell and his landlord's right to re-enter exist simultaneously ? In my judg- ment, without a shadow of doubt on the subject, the claimant did enter into an agreement wholly inconsistent with the usage he claims. So far I have proceeded on the assumption that inconsist- ency is to be the test of our decision ; but my Brother Lawson, difiering toto ccelo with the Lord Chancellor, considers incon- sistency is not the test, and as wholly inapplicable. The decision of the Lord Chancellor in The Waterford Estate, that the Ulster customs were analogous to the English customs, and were mere incidents of the tenure of a yearly tenancy, was dissented from by the Lord Justice of Appeal, who, in a remarkable judgment on this point fp. 457,) expressed himself as follows : — " Among many novel theories which heralded the advent of this measure, there was hardly any more curious to the legal mind than one which, I am sure, few who hear me have forgotten. The discovery was made that the necessity for exceptional legislation for Ireland on the subject of the occupation and owner- ship of land was in large measure the fault of Irish Judges ; for, that if they had only had sufficient enlightenment to have applied to the Ulster Tenant Right Custom the law of England regarding agricultural usages, as expounded in Wigglesworth v. Dallison, and its attendant train of decisions, the need for such legislation as this would have been wholly superseded in Ulster, and p;irtially so in other provinces. So long as this notion was confined to flashy articles in newspapers and magazines, it was merely a thing to smile at. But when it came to be repeated by statesmen, and even (as it was) by lawyers of standing and reputation, one was forced to think with gravity on the lengths of extravagance 144 THE IRISH REPORTS. [I. K. Land Court, >"*" which, even in subjects of exact thought, such as law, when they unhappily 1872-3. become the terrain of party warfare, men will suffer themselves to be hurried. ~ I will take upon myself to say that anything more utterly frivolous and puerile than this notion never exercised the brain of the flightiest of essayists. The Lb. Leiteim. Judge who three years ago would have laid down that doctrine would have been greeted with universal and merited derision. I am not going to waste time in the dissection of a proposition which every lawyer who would think of it, merely as a lawyer, would know to be nonsense. Mr. Ryan, as became him, refused to argue it. What is it ? Incorporate by implication as an incident to a contract of tenancy which, as expressed, is one from year to year, determinable on 1st of November, a usage the practical effect of which would be to make that tenancy a perpetuity — do this under the notion that you are following the English cases of agricultural usages — usages which regulated mere details of farming, right to an away-going crop, course of husbandi'y, paying for manure when leaving, and suchlike, all in strict subordination to and consistency with the terms of the express tenancy! Have I used too strong a word when I call this nonsense? There are two things which are essential in the English cases. First, the term which the usage is allowed to import must not be inconsistent with the express contract. Second, the usage itself must be certain. Where is the consistency when the gist of the usage is to turn the tenancy into a perpetuity ; and where is the certainty when the very essence of the usage is that the landlord may put an end to it at his pleasure P" My Brother Lawson concurs in the judgment of the Lord Justice so far as it establishes that there is an entire inconsistency between the Ulster Custom and an ordinary yearly tenancy; and he says, notwithstanding inconsistency in the case of ordinary yearly tenancy, the TJlster Custom is made legal by Act of Parliament. Why should it not be so in the present case ? Now, I am inclined to agree with the opinions of those who hold with the Lord Justice and my Brother Lawson, that the Ulster Custom claimed here is inconsistent with even an ordinary yearly tenancy. That was one reason why it could never be held a legal custom, until it was made statutably so ; but it was only one of the reasons — it did not possess other requisites of alegal custom — it was not an immemorial usage — it was not certain — it was not consistent — it did not affect any district with uniformity, but even varied on particular estates — and thus could not, with any pretence to even elementary knowledge, be maintained as a legal custom. WMle I thus agree as to a portion of my Brother Lawson's judgment, I cannot concur in the conclusion he has ar- rived at. In the first place, I conceive an essentially different con- Vol. I.] KEGISTRY AND LAND ACT APPEALS. 145 Bideration arises upon an inoonsistenoy between a usage and what Land Court. are only legal implioations of an ordinary yearly tenancy, to that i&12-S. which is applicable where there is an ineonsisteucy between the Stevenson usage and an express agreement which contains express stipulations L]j_ Lbiirim. in writing excluding the custom. This distinction is noticed in the decision in Roberts v. Barker. Again I conceive a matter of fact is, of itself, decisive against the result my Brother Lawson arrives at ; for in the case of an ordinary yearly tenancy this usage, inconsistent as it was, was proved to exist and to be prevalent. The Act declares it consequently to be legal and enforceable. Whereas in the case of written agreements of the character of the present, there was no evidence, or allegation even, that any usage was allowed or prevalent — the absence of any such usage as a mat- ter of fact prevents the question from even arising. I could appre- ciate the argument if there had been a finding in this case that, notwithstanding such agreements as the present, the usage was prevalent — in its absence I cannot see even a question for discussion. The decision of the majority of this Court is thus arrived at from the most opposite premises; the Lord Ohancellok and some members of the Court consider that the custom may be an incident to an ordin- ary tenancy ; that the custom is not inconsistent with it ; that inconsistency is the test to apply to this agreement, and that, in their opinion, there is no inconsistency : e contra, my Brother Lawson and other members of the majority of this Court consider that the custom could not be a mere incident of an ordinary yearly tenancy ; that the custom is inconsistent with it, and that incon- sistency is not the proper test to apply to this agreement. The case is thus somewhat peculiar ; it has another peculiarity — that it was fuUy and finally argued out before this Court consisting of seven Judges ; it was thought better, from its importance, to have it re-agued (1). I yielded tothat suggestion, and it has now had the advantage of being heard before a Court of nine Judges, three of whom were not at the first argument ; it has had the disadvan- (1) The case was argued, Dec. 12, and Bowse, B.; and re-argued, Jan. 9, before Tte Lord Chancellor, The Mas- before the Judges mentioned at the ter of the Kolls, The Vioe-Chancellor, commencement of this report. Deasy, B., Morris and Lawson, JJ., 146 THE IRISH HEPORTS. [I. K. L 1, and re/versed as to No. 2. ^^ZyU P-'<^<'4'^uAjU STEVENS Am HATMS' LAW PUBLICATIOJ^S. In I vol., 8vo, price 20s., cloth, very clearly and handsomely printed for facility of reference, THE SUPREME COURT OF JUDICATURE ACTS, 1873 & 1875; WITH ETJLES, ORDERS, AND COSTS THEREUNDER. Idi^d, with Copious Notes, References, and 4 very full Index, and forming a Complete Book of Practice under the above Acts. 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