MOUNTCASHELL agent and steward, caused to be planted partly on the lands of E. T. 1854. Exch. Cham. Killycharn, in said county, then held by the said Earl O'Neill as tenant thereof to Alexander Davison under a lease, and partly on the lands commonly called White Parks, being part of the said lands of Claggan, the several trees mentioned in said affidavit, which affidavit was also duly lodged with the Clerk of the Peace of the county. That affidavit was in this form : 66 66 to wit. 'County of Antrim, "I, William M'Auliffe, do swear that I have "planted, within twelve calendar months last "past, for Earl O'Neill, on the lands of Killycharn, held by the "said Earl O'Neill from Alexander Davison, and on the lands commonly called White Parks, being part of the lands of Claggan, held by the said Earl O'Neill from the Earl of Mountcashell, "all in the parish of Skerry, in the lower half barony of Antrim, "the following trees, viz. (enumerating them); and that I have given "notice to the said Alexander Davison, under whom the said Earl "O'Neill immediately derives the said lands of Killycharn, and to George Joy, agent to said Earl of Mountcashell, under whom the "said Earl immediately derives the lands called White Parks, being "part of said lands called Claggan, of my intention to register said "trees, twenty-one days at the least previous to this day, and that I "have given notice to register said trees by public advertisement in "the Dublin Gazette, thirty days at least previous to the date hereof. "WILLIAM M'Auliffe. "Sworn before me, &c., 24th October 1821,-P. A., J. P. "Received 25th October 1821,-S. DARCUS, Clerk of the Peace." The verdict then found that due notice of this planting on the lands of Killycharn and Claggan, as above, was published in the Gazette, and also given to Alexander Davison and George Joy, by M'Auliffe as steward and agent, and by the command and with the assent of Lord Mountcashell. It further found five other notices and affidavits given and made by M'Auliffe as agent to Lord O'Neill, and all in a similar form. The special verdict then found that the estate, right, title and interest of the Earl O'Neill in the trees planted on the lands, and enumerated in the eight affidavits of registry, was, on the 17th of December 1850, and since, vested in Viscount O'Neill. v. O'NEILL. E. T. 1854. MOUNTCASHELL บ. O'NEILL. It then found that the defendant had cut down, on the 7th of January 1851, and severed from the lands of Claggan, certain trees, and converted them to his own use, the same being some of the trees enumerated in the affidavit of Earl O'Neill, of the 20th of May 1816, and in the notice of the 18th of April 1816. It further found a cutting down and conversion of the trees mentioned in M'Auliffe's affidavits and notices, as before, and concluded with an assessment of nominal damages for each cutting. In Michaelmas Term 1852-O'Callaghan and Brewster argued the case on behalf of Lord Mountcashell, and-J. E. Walsh and Joy, for Viscount O'Neill, and the Court of Queen's Bench gave judgment for the plaintiff on the first and third plantings, and for the defendant upon the remainder. 2 Ir. Com. Law Rep., p. 436. Upon this judgment two several writs of error were brought. On behalf of the Earl of Mountcashell it was contended that he was entitled to all the trees comprised in the eight several plantings, and that the judgment of the Court below was erroneous in finding for the defendant with respect to six of those plantings, inasmuch as the affidavit of registry was made, not by the landlord himself, but by his agent. On the other hand, on behalf of Viscount O'Neill, it was contended that this affidavit was quite sufficient to satisfy the provisions of the statute; and that as to the other plantings, Lord O'Neill was entitled to have the judgment reversed, the statute not requiring that the numbers of trees planted on each denomination ought to be specified. Lawson and Deasy appeared on behalf of Lord Mountcashell, and J. E. Walsh and Joy, for Lord O'Neill. The following cases were cited: The King v. Jefferies (a); Davison v. Gill (b). Goss v. Jackson (c); Galwey v. Baker (d); King v. May (e); Wright v. Clements (f); Sheppard v. Gosnold (g); Magistrates Exch. Cham. of Dunbar v. Duchess of Roxburghe (a); Shuttleworth's case (b); E. T. 1854. Gardiner v. Blesinton (c); In re Derosue's Patent (d); Doe v. Norton (e); The King v. Poor-law Commissioners (ƒ), and the statute 23 & 24 G. 3, c. 39.* MOUNTCASHELL v. O'NEILL. Cur. ad. vult. The Court, differing in opinion, delivered judgment seriatim. Moore, J. This case comes before the Court on two writs of error-one brought by the plaintiff the Earl of Mountcashell-the other by the defendant Viscount O'Neill. The action was one of trover, brought to recover the value of certain timber trees taken and converted by (a) 3 Cl. & F. 335. (c) 1 Ir. Ch. Rep. 64. (e) 11 M. & W. 913. (b) 9 Q. B. 651. (d) 4 Moo., P. C. C., 416. * 23 & 24 G. 3, c. 39:-" An Act to Amend the Laws for the Encouragement of Planting Timber Trees." Section 1. Whereas the laws for the encouragement of tenants to plant timber trees have proved ineffectual: Be it enacted, &c., that from and after the passing of this Act, any tenant for life or lives, by settlement, dower, courtesy, jointure, lease, or office, civil, military, or ecclesiastical, impeachable of waste, or any tenant for years, exceeding fourteen years unexpired, who shall plant, or cause to be planted, any timber trees of oak, &c., shall be entitled to cut, sell and dispose of the same, or any part of the same, at any time during the term." Section 2.- Provided always, that any tenant planting, or causing to be planted, shall, within twelve calendar months after such planting, lodge with the Clerk of the Peace of the county, or county of a city, where such plantation shall be made, an affidavit, sworn before some Justice of the Peace of the said county, reciting the number and kinds of the trees planted, and the name of the lands, in form following: "I, A B, do swear that I have planted, or caused to be planted, within twelve calendar months last past, on the lands of -, in the parish of held by me from the following trees [here reciting the number and kinds of trees], and that I have given notice to the person or persons under whom I immediately derive, or his, her, or their agent, of my intention to register said trees, twenty days at least previous to this day; and that I have given notice of my intention to register said trees by public advertisement in the Dublin Gazette thirty days at least previous to the date hereof;" or else-" and that I have also given notice of the same in writing to the head landlord, owner or owners of said ground, or his, her, or their agent, twenty days previous to the date hereof" (as the case may be). April 24. Exch. Cham. MOUNTCASHELL E. T. 1854. the defendant to his own use. The defendant pleaded the general issue on the trial, and a special verdict was found. On the argument of that verdict, the Court of Queen's Bench gave judgment for the plaintiff as to some of the trees, and for the defendant for the residue, and both parties being dissatisfied with that judgment, they have respectively brought the present writs of error. v. O'NEILL. The special verdict finds that the late Earl of Mountcashell (the father of the plaintiff) was seised in fee of the lands of Claggan, and that by indenture, bearing date the 2nd day of March 1816, and made by and between the said Earl of Mountcashell of the one part, and the late Earl O'Neill of the other, the said Earl of Mountchashell demised the said lands to the said Earl O'Neill for the term of three lives, and the survivor (one of whom, the present defendant, is still living). The special verdict then finds that the said Earl of Mountcashell (the lessor) died in 1822, seised of the reversion in said lands, and that on his death, the present Earl, as his eldest son and heir-at-law, became and was and is still seised thereof. The verdict further finds that the Earl O'Neill, the lessee, died in 1841, and that on his death the present defendant became and is now seised of the lands for the residue of the term in said lease mentioned. The verdict then finds that, after the making of that lease, the said Earl O'Neill, between the years 1816 and 1827, made eight different plantings of timber trees on the said lands; and then it sets out the particulars and dates of said several plantings, and also the several steps taken by the said Earl O'Neill for the registration of the trees so planted, pursuant to the provisions of certain Acts of Parliament in Ireland, usually called the Timber Acts. The defendant contends that, on the facts found in the special verdict, the several trees so planted were all duly registered pursuant to the said Acts, and were his property. The plaintiff, on the other hand contends, that none of the trees were duly registered, and that having been cut down, they became his property as owner of the reversion: and the question between the parties in this case is, whether all the said eight plantings, or any and which of them, had been duly registered according to law?-for it is clear that, whenever the trees had been duly registered, the property in them Exch. Cham. MOUNTCASHELL v. O'NEILL. was in the defendant. It is not necessary for me to detail the several E. T. 1854. steps of registry as set out in the special verdict, but only to advert to the step that is alleged by the plaintiff to be defective, so as to vitiate the registry. It is admitted that one of the steps prescribed by the statute is, that an affidavit should be made as to the planting, at least in the case where the holding is by lease, and accordingly, the special verdict finds that in due time affidavits had been made of each of the eight several plantings. But it appears that, on the occasion of the first planting, the affidavit was made by the Earl O'Neill himself; but that, on the occasion of the seven other plantings, the affidavits were made by one William M'Auliffe, as the agent and steward of the Earl O'Neill, and not by the Earl himself. The plaintiff contends that in all those seven cases the registry is bad, alleging that the statute requires the affidavit to be made by the party who plants, and by no other person. The Court below was of opinion that this objection of the plaintiff was not well founded; and it being the only objection taken to six out of the eight plantings, judgment was given for the defendant as to them. But there being another and different objection to the remaining two plantings, viz., the first and third, and which the Court considered to be well founded, they gave judgment for the plaintiff as to those two. I shall first advert to the alleged defect in the seven affidavits, and afterwards to the separate objection to the first and third plantings. The objection is founded on the statute of the 23 & 24 G. 3, c. 39. This was one of a series of Acts passed in Ireland for the encouragement of the planting of timber trees. They were all made in derogation of the Common Law right of the reversioners, to whom undoubtedly the property in all timber trees planted by a tenant belonged, subject only to the tenant's right to the different kinds of botes. The 5 G. 3, c. 17, gives this pithy reason for its enactment:" Whereas the distress in this kingdom for want of "timber is most obvious, and whereas it is equal to inheritors "whether tenants do not plant or have a property in what they "plant." It is plain that the object of this legislation in passing this code of laws was to effect, through the medium of individual |