grant made by the owner of any lease or under-lease in perpetuity under this act shall prejudice or affect the rights of the owner of the reversion, or of any lease or under-lease superior in tenure, or of the estates into which they may be respectively converted under this act, but all owners, under-lessees, and occupiers for the time being of any land shall have the like rights and equities to be discharged of and indemnified against fee-farm rents created under this act as such owners and occupiers respectively would have had in respect of the rents incident to the several reversions or estates converted into such respective fee-farm rents; and the owners for the time being of all fee-farm rents created under this act shall be subject to and charged with the like liabilities, and shall have the like rights and equities to indemnify and to be indemnified in respect of such fee-farm rents respectively, as they would have been subject to, and would have had in respect of the reversions or estates which have been converted into such respective fee-farm rents, in case this act had not been passed.

XII. And be it enacted, that where the owner of any under lease in perpetuity is entitled to require the owner of the lease or superior under-lease out of which such first-mentioned under lease is derived to procure a renewal of such lease or superior underlease, the owner of such first-mentioned under-lease may, at the time of requiring the owner of such lease or superior under-lease to execute to him a grant under this act, and whether the time for the renewal of such lease or superior under-lease has or has not arrived, also require the owner thereof to procure a like grant to be made to such owner by the owner from whom he is entitled under this act to require such grant; and where a grant has been made under this act to the owner of an under-lease in perpetuity entitled to require the owner of the lease or superior under-lease in perpetuity out of which such firstmentioned under-lease was derived, to procure a renewal of such lease or superior under-lease, and the owner to whom such grant has been made has not at the time of requiring such grant required the owner of such lease or superior under-lease to procure a like grant to be made to such owner, and such grant has not in fact been made to such owner, the owner of the estate into which the estate under such first-mentioned under-lease has been converted shall, at the time when he might if such last-mentioned estate had not been converted have required the owner of such lease or superior under-lease to procure a renewal thereof, be in like manner entitled to require such owner to procure a grant to be made to him under this act.

XIII. And be it enacted, that where any lands comprised in a lease or under-lease to the owner of which a grant is made under this act of an estate of inheritance are comprised in an under-lease in perpetuity to the owner of which the owner of such lease or first-mentioned under-lease has previously made a like grant in such lands, such first-mentioned grant shall operate to supply or feed the grant so previously made and each like grant (if any) previously made by the owner of each inferior underlease in perpetuity in the same lands, or any part thereof, between which and the secondly beforementioned under-lease there is no intermediate under-lease in perpetuity subsisting.

XIV.And be it enacted, that where any fee-farm rent shall be charged upon any lands by any grant made under this act, the acquisition of a part of such lands by the person entitled to such fee-farm rent, whether such acquisition shall be by descent, by purchase, or by escheat, shall operate so as to extinguish only a proportionate part of the rent to which such person shall be entitled, and the remaining part of such rent shall be recoverable out of the residue of such lands in the same manner as the whole rent would have been recoverable if such acquisition had not been made; and in such case such fee-farm rent shall be apportioned by the agreement of the persons interested, and in default thereof, according to the relative amounts of the value of the land so acquired and the value of the residue of such lands, in the same manner as rent-service is now by law apportionable upon an alienation of the reversion in part of the lands.

XV. And be it enacted, that where the owner of any reversion, lease, under-lease, or estate is a minor, idiot, lunatic, feme covert, or is not within the United Kingdom, the guardian, trustee, committee of the estate, husband, or attorney respectively of such owner shall for the purpose of this act be substituted in the place of such owner, and shall and may execute such grants and counterparts, make such agreements, and do all such other acts which such owner, if not under disability or out of the United Kingdom, should and might have executed, made, and done, under this act.

XVI. And be it enacted, that where any fee-farm rent made payable by any grant under this act is greater in amount than the rent reserved by the lease or under-lease in perpetuity to the owner of which such grant is made, the party paying such rent shall be entitled to deduct from the party receiving the same the proper poundage in respect of poor's rate from the portion of such rent which by virtue of this act is added to the amount of rent previously payable.

XVII. And be it enacted, that nothing in this act contained shall be deemed to affect or alter the existing liability of any party or parties, or of any estate or interest in respect of the payment or deduction of rent-charge in lieu of tithe.

XVIII. And be it enacted that the fee-farm rent made payable by any grant under this act, or by any grant made after the passing of this act, shall be recoverable by distress, ejectment for nonpayment of rent, action of debt, covenant, and all other ways, means, remedies, actions, suits, or otherwise, by which rent-service reserved on any common lease or demise for a life or lives is or may be by law recoverable; and all the enactments relating to ejectment for nonpayment of rent, distress, or other remedies for the recovering thereof, shall apply to every such fee farm rent as aforesaid, as fully and effectually as if the same were rentservice reserved on a lease for a life or lives; and in proceedings by ejectment for nonpayment of such fee-farm rent under the statutes for the time being in force in Ireland in relation to ejectment for nonpayment of rent made applicable under this act to such fee-farm rent as aforesaid, the receipt of such fee-farm rent for three years by the lessor of the plaintiff, or any person or persons through whom he claims, shall have the same force and

No. 28.-VOL. I.

PRICE

Per Annuin, £1 10s. Single Number, 9d.

To provide a remedy for an inconvenience in the state of the law, which frequently inflicted injury and loss on both landlord and tenant, the 9 & 10 Vic. c. 111, was enacted.

The inconvenience we allude to, arose from the tenant having six months after the execution of an habere in an ejectment for non-payment of rent, during which-on payment of the amount due for rent and costs he could redeem his interest. Dur

ing these six months the landlord was placed in much difficulty as to the profitable management of his lands, as he was reduced to the necessity either of occupying the farm himself, or of putting a tenant into it, whom, in the event of the former tenant redeeming, he might find much difficulty in removing; and the tenant, whom a temporary embarrassment might have prevented from meeting his engagements, was dislodged from his farm at a time when his superintendence might have been of the utmost importance. Thus the tenant was sometimes ruined by being deprived of the possession of a farm, which was often found of very questionable value to the landlord.

Court of Exchequer Chamber.......

:

JOHN BLACKHAM, Esq., and
A. HICKEY, Esq., Barristers-at-
Law.

Queen's Bench, includ- ( FLORENCE M'CARTHY, Esq., and ing Civil Bill and Re- SAMUEL V. PEET, Esq.,

gistry Appeals........ Barristers-at-Law.

Exchequer of Pleas, in- (CHAS. H. HEMPHILL, Esq., and

cluding Manor Court and Registry Appeals.

Common Pleas ...........

WILLIAM HICKSON, Esq., Bar

extension of these provisions to other cases besides ejectments for non-payment of rent (which class of ejectments alone are contemplated in the other sections of the act) has introduced another element, which may sometimes keep the landlord out of possession of his land for a longer time than he expected or intended.

This new element is thus introduced-a landlord

obtaining an habere in an ejectment on the title, is in a very different position from a landlord obtaining one in an ejectment for non-payment of rent; in the latter case the tenant has a clear right to regain possession on certain conditions; in the former, there is nothing which the tenant can do which will so entitle him-his continuance or noncontinuance in the occupation of the farm, is entirely at the option of the landlord. If the landlord allow him to remain in possession after the execution of the habere, under the provisions of est sense of the word, and acquires that uncertainty this act, he is clearly a tenant at will, in the strictof tenure which entitles him, if he sow the land, and is put out before he reaps the crop, to have that crop, and free entry, egress, and regress to cut and carry it away, because he knew not at what time the lessor would enter; except, indeed, the statute break in on the principle of the common law.

That his principle of the common law should be upheld at the same time that the provisions of this statute should be carried out, seems to be the

restored to the landlord.

The provisions of the 8th section are applicable wherever the sheriff, his bailiff, or officer, is exeenting any writ of habere in any action of ejectment, or any civil bill decree for the recovery of the possession of lands and tenements; and the

Gildea, alluded to by us in a former number, and reported in the 11 Irish Law and Equity Reports, page 198, where the order to renew the habere was made absolute, but with a stay of execution until the 1st of November, distinctly on the ground that in the interval that had elapsed, the tenant might have cropped the land. However, though we admire the solicitude with which the Court regarded the interests of occupying tenants, in this instance

the reason was not sufficient to satisfy us that the order should not be made absolute without any stay of execution. That the tenants had cropped the lands would have been (in our opinion) a good cause why execution should have been stayed, to enable them to reap the profits of their industry; but that they might have done so, seems hardly sufficient. It appears further, that they had been served with the conditional order, and it might fairly be inferred, that if they had cause to shew, they would not have neglected doing so that they might have cropped their lands, was a good reason for insisting on the service of the conditional order, but no reason for refusing to render it absolute unconditionally, on proof of service, if no cause were shewn.

But, to return-there are two distinct classes of cases to which the provisions of this 8th section apply; namely, cases where tenants under ejectment for non-payment of rent are permitted to remain in occupation for the time during which the law gives them the right of redemption; and cases where a landlord choses to permit a tenant, ejected on the title, to remain in possession. These two classes differ completely in the circumstances connected with them, and we are prepared for a difference in the rules made by the court, according as a case brought under their notice belongs to one class or to the other. In cases of ejectment for non-payment of rent, the tenant must be supposed to know whether he is about to redeem or not, and will regulate the management of his farm accordingly. In these cases, we are prepared to find the courts as the six months allowed for redemption are about expiring-renewing haberes, and putting landlords into immediate possession without hesitation. In cases of ejectment on the title-as the tenant cannot know what the landlord's intention may be—we are, on the contrary, prepared to find the courts making diligent inquiry, as to whether the tenant has been induced, by the indulgence of the landlord, to crop his land, and, in that case, preventing a landlord from taking advantage of the exertions which a tenant might be induced to make in consequence of such indulgence.

We consider the provisions of the 8th section so salutary in their application to the cases of ejectment for non-payment of rent, that we should be glad that they were not only optional, but compulsory. We can easily imagine circumstances where great and unnecessary injury would be occasioned by the landlord refusing to permit undertenants to continue in occupation of their holdings during the six months allowed for redemption, in the event of the interest being ultimately redeemed. We can imagine a temporary embarrassment occasioning the non-payment of rent, proceedings in ejectment taken, and an habere obtained by the landlord, who refuses to permit the under-tenants to remain in occupation, according to the provisions of the statute; we can imagine a thousand complicated arrangements existing between the mesne landlord and the under-tenants. The superior landlord has it in his power to disturb all these, and to persevere in this disturbance during six months. Supposing the redemption is not

effected till the last moment, and on the supposition that it is effected then, the intermediate disturbance and injury would have been clearly unnecessary. All parties would have been put to inconvenience, even the landlord, without advantage to any.

Other sections of this Act contain important amendments in the law as to ejectment for nonpayment of rent. It is reasonable that the tenant should have accurate information as to the amount of rent claimed, as well as the amount claimed for costs, in order to his providing for their The provisions also for staying proceedings, at almost every step in the suit, on payment of the amount due and costs incurred up to that period, are of some importance to the holders of land.

payment.

DURING the past week, a decision was made by the Court of Exchequer, in the case of Brady v. Rotheram, (not yet reported,) as to the effect of a lodgment of money, in discharge of the action, after writ and before declaration. This was the first occasion such a question has been mooted, and the decision of the Court is one which, we appre hend, will have a very considerable influence on the practice of lodging money in discharge of the action, and of changing the venue on the common affidavit.

The action was trover, and after the service of the writ, and before the declaration was filed, the defendant lodged a sum of money in court, and moved on the common affidavit to change the venue. This application was answered by an undertaking to give material evidence in the county where the venue was laid, (the county of the city of Dublin.) At the trial before the Lord Chief Baron, the only material evidence was the defendant's rule on lodging the money. The Chief Baron having refused to non-suit, the plaintiff had a verdict, and the question came before the Court on a motion to change that verdict into a non-suit.

For the defendant, it was contended, that as the lodgment was before declaration, it could not be taken as an admission of a cause of action not disclosed; that it would inflict much hardship on a defendant, who, on being served with a writ indorsed with the amount of debt and costs, as is required in actions ex contractu, and being willing to admit a debt of that character, was then to be declared against in trover, and his admission of the former cause of action, used as an admission of the latter. The answer was, that in this case the defendant had acquiesced in the form of action in which he was sued. The Court decided that the lodgment of the money must, in every case, be taken to be an admission of the demand, and consequently, was material evidence. And during the progress of the argument, suggested that, if a defendant, intending to lodge money to one demand, were surprised by a different one being laid in the declaration, it would be competent for him to apply to the Court for liberty to withdraw the money lodged.

This decision is carrying the effect of an admis sion by the lodgment further than that given it by the Courts at Westminster, the inclination of the later decisions appearing to be rather in favour of

a diminution of its effect. (See Taylor on Evidence, 558, et seq.) This is the only case now on record, in which the lodgment was before declaration; but in future it will, perhaps, be the most advisable period, as, if the plaintiff take the money in discharge, the defendant will be liable merely to the costs of the writ. If the plaintiff goes on, and does not recover more than the sum lodged, according to the decision of the Court of Queen's Bench, in Kershaw v. Lindsay, (1, Ir. Jur. 31), the defendant will be entitled to the whole costs; and if the defendant feel himself aggrieved, by any misapprehension as to the nature of the demand in the writ, and that subsequently made in the declaration, he can adopt the suggestion alluded to as having fallen from the Court. Though there is, we believe, no precedent for such a motion, such a one is absolutely necessary to protect a defendant from the inconvenience he would be otherwise subjected to by this decision. On the other hand, the defendant must recollect, that by lodging the money at this period, he deprives himself of the power of changing the venue, except on special grounds.

(Continued from p. 208.)

XIX. And be it enacted, that if in any action or ejectment brought on account of the non-payment of any fee-farm rent made payable by any such grant as aforesaid, pursuant to the statues for the time being in force in Ireland as to the actions of ejectment for non-payment of rent, judgment be given for the plaintiff, and execution executed, and the person who has made default in payment of the rent, or the person who but for such ejectment would for the time being have been the party to make the payment from time to time thereafter becoming due, do not, within six calendar months from the time of such execution executed, do such acts or take such proceedings as are or may be by law necessary for the redemption of the lands from the said judgment and execution (all which acts and proceedings he is hereby authorized to do and take in the same manner and with the same effect to all intents and purposes as if he were the tenant or lessee of the person causing such ejectment to be brought), then and in every such case it shall be lawful for the owner of or any person having an estate or interest in any fee-farm rent made payable by any such grant as aforesaid out of the whole or any part of such lands, or for the owner of or any person having an estate or interest in the lands out of which such fee-farm rent is payable, or any part thereof, within nine calendar months after such execution executed, to do such acts and take such proceedings for the redemption of the said lands from the said judgment and execution, and for obtaining relief in respect of the same, as under the statutes last aforesaid, any mortgages of a lease might do or take for the redemtion of such lease, or his estate or interest therein, from any judgment and execution in any action of ejectment for non-payment of rent pursuant to such statutes, and for obtaining relief in respect of the same; and any redemption made pursuant to such statutes shall operate so as to restore all estates and interests in rents, or in lands which

shall have been defeated by the entry or ejectment; and when such redemption as last aforesaid has been made, or when any such redemption has been made under the statutes aforesaid, by any mortgagee or any other person, which redemption he is hereby authorised to make, all sums of money paid or advanced on account thereof, and the costs thereof, shall be, and be deemed a lien and charge in favour of the person paying the same, his executors or administrators, not only upon the estate or interests of the person making such default aforesaid, but upon all the inheritance in which such estate or interest is subsisting, in priority to all other interests or charges whatever upon such inheritance, save and except any charges created under the acts relating to the drainage of lands, or to the improvement of lands in Ireland; and such sums of money and costs shall also be recoverable by the person paying the same from the person who has made such default, or his representatives, in, and by an action of debt; and all sums of money paid and costs incurred in respect of such lien, or charge by any person damnified thereby, shall also be recoverable by such person, from the person who has made default, or his representatives, in manner aforesaid; and it shall be lawful for any person, having the benefit of such lien or charge, or damnified thereby as aforesaid, to apply by petition in a summary way to the Court of Chancery, or Court of Exchequer at the Equity side thereof, for the appointment of a receiver over such estate, interest, or inheritance, and which receiver it shall be lawful for said court respectively to appoint, and to continue until all such sums of money and costs, with interest, and the costs of such petition, and of the proceedings thereunder, are fully paid and discharged, and to make such order in referference to such petition, as to such courts respectively may seem fit.

XX. And be it enacted, that where the owner of any lease or under-lease in perpetuity of any degree of tenure, of lands in Ireland, has required a grant under this act, and the owner of the reversion, lease or superior under-lease, or estate, from whom such grant has been required, disputes the right to such grant, or in case such owners shall differ as to what covenants, conditions, exceptions, or reservations shall be contained in such grant, or what exceptions, reservations, or rights should be commuted, or otherwise, as to the terms or conditions of such grant or the amount of fee-farm rent to be made payable thereunder, or in case the owner of the reversion, superior lease, under-lease, or estate, who might be required to execute a grant under this act be a minor, idiot, lunatic, feme covert or not within the United Kingdom, and there be no guardian, committee of the estate, husband, attorney, respectively, of such owner competent to act under the provision herein-before contained, or there is or are any arrears of rent, fine or fines, or fees, which under this act might be required to be paid before the execution of a grant under this act, and the owner required to execute such grant, has refused to accept payment thereof, or there is no person to whom the same can properly be paid, or it is not known to whom the same ought to be paid,