M'DERMOTT v. O'CONNELL.-May, 14th. Practice-Rule for publication entered too soon, set aside for irregularity. The bill in this case was filed by a landlord against his agent for an account; by the answer it was admitted that there was a sum of £253 in the hands of the defendant. Replicatian filed the 1st of March, amended the 5th, Mr. P. Blake now moved that the defendant rule for publication entered the 1st of May, set aside for irregularity, and an application that might invest in government stock the sum of £258 this rule might be permitted to stand, notwithstand-19s. 10d., being the amount admitted by his answer to be in his hands, and night transfer same to the ing the irregularity, was refused. credit of the cause. In the case of Gordon v. Rotheley (3 Ves. Jun. 572), a defendant was or dered on motion to pay into court a balance ascer tained by a report. In Wood v. Downes ( Ves, & B. 49) a similar order was made, and the case of Fairley v. Freeman was there cited, in which a sum admitted by an answer to be in a defendant's hands, was ordered on motion to be paid into court. Mr. F. Meagher contra.-It is only in the case of trustees or personal representatives that an order The replication in this cause was filed on the 28th of February, but was not served until the 1st of March; on the 5th of March the replication was amended by adding several defendants, pursuant to an order of the 2nd of March previous; but no copy of this order or of the amended replication was served on the defendant's solicitor. On the 1st of May the peremptory rule for publication was entered and served. This was an application on the part of the defendants, M. A. Mahony, K. Mahony, and J. Barry, that this rule for publication should be set aside. Mr. Greene, Q. C. for the motion. By the 93rd General Order it is provided, that any defendant, after the expiration of two months from the replication filed, and the plaintiff, after the expiration of two months from the replication served, shall be at liberty to enter and serve the peremptory rule for publication; in this case the two months would not expire until the 5th of May, as the replication was amended on the 5th of March. The plaintiffs are clearly irregular, and the rule for publication was entered too soon, and should be set aside. Mr. Serjeant O'Brien, contra, moved a cross notice, that in case the Court should be of opinion that the rule for publication was entered and served irregularly, and before the proper time, that said rule and the proceedings consequent thereon might be permitted to stand, notwithstanding such irregularity. This rule is not peremptory in its terms. The case of Attorney-general v. Ball, (9 Ir. E. R. 463,) shews that the rules may be relaxed; under the 86th General Order ten clear days notice is to be given of the examination of witnesses before a commissioner examiner; in that case only nine days notice was given, and the Court refused to suppress the depositions; there is a discretion which may be exercised by the Court. Mr. Berkley, in reply. MASTER OF THE ROLLS.-The plaintiff has been altogether irregular. In general a pleading is considered as filed the day upon which notice is served, and it would be strange to allow a replication to be amended and publication to pass the next day. I do not think this cross notice can be sustained. "Let said order, dated the 1st of May, 1849, to pass publication in this cause, be set aside, and no rule on the cross notice, and let plaintiff pay said defendants, M. A. Mahony, K. Mahony, and J. Barry, £7 for the costs of this motion." Lib. 285, fo. 204. BLAKE v. COMINS.-May 26th. Practice-Payment of money into Court-Admission in answer of an agent. Bill filed against an agent for an account; admission in the answer of a sum due, ordered on motion to be paid into Court. to bring money into court is made on interlocutory application (2 Dan. C. P. 1636), and has never been done in the case of an agent; besides, in this O'Flaherty, who had been the former agent to recase, the plaintiff gave an order to a person named ceive this money, and we may be compelled to pay him. Master of the ROLLS.-If you pay Mr.O'Flaherty in pursuance of this order, I will not compel order the money to be lodged in court, and not to you to bring the money into court; but if not, I be paid out without notice to Mr. O'Flaherty. "Be it so, with liberty to the said defendant to apply to the court that said sum may be transferred to Mr. O'Flaherty, and the costs of this motion be costs in the cause." Lib. 286, fo. 51. DOOLEY. HARDING.-May, 28th. Where a defendant in a cause has been found a le natic by commission, this Court will not, on the application of the plaintiff, appoint a guardian ad litem, to file an answer for the lunatic. Mr. Hughes, Q. C., on behalf of the plaintiff, moved that one of the clerks in court might be ap pointed a guardian ad litem, to file an answer for the defendant to the bill in this cause; an appearance had been entered for the defendant by his solicitor, but by an inquisition subsequently held under a commission of Lunacy, the defendant was found a lunatic. [Counsel referred to Crawford v. Ker naghan, (I Dr. & Wal. 195.)] Mr. B. Murphy, contra, contended that the mo tion was irregular and unnecessary, the defendant having been found a lunatic by the commission. Mr. Hobart, in reply, referred to Shelford on Lunacy, 561. MASTER OF THE ROLLS.-This application is irregular, and although orders, similar to that sought, have sometimes been made; it is only in cases where the defendant has not been found a person of unsound mind by a commission of lunacy. "It appearing that a committee has been ap pointed in the matter of Harding, a lunatic, no rule, &c." Lib. 286, fo. 74. WILLIAMS v. WALKER-July 13. Judgment creditor-Supplemental bill-Pleading. Where a bill was filed subsequent to March, 1843, and by a supplemental bill judgment creditors were made notice parties, a decree was made giving them liberty to surcharge and falsify the account taken in the original cause, and in default, that they should be bound by the proceedings. This cause was set down to be heard pro confesso against the inheritor, who had been brought before the court by supplemental bill. Some judgment éreditors of the inheritor, who had not been made parties in the original cause, were made notice parties to the supplemental suit, and the inheritor had been made an answering party. The bill was filed, and a decree pronounced in the original cause, subsequent to the general orders of 1843; the cause was now set down to be heard pro confesso against the inheritor, and the bill prayed that the judgment creditors who had been made notice parties, should be bound by the proceedings and deeree in the original cause, and that they should be at liberty to surcharge and falsify the accounts in the original cause and in the event of their neglecting so to do, within such time as the Master should appoint for that purpose, that they should be bound by these accounts. as against the said defendants the benefit of said decree pronounced in the original cause, on the 31st of January, 1848, and accordingly let the same be carried into execution against the said defendants." R. H. B. 20, fo. 324. COURT OF EXCHEQUER CHAMBER. Pleading-Bill of Exchange-Gambling To a declaration upon two bills of exchange the de- Held also that it was a good traverse, the replication Mr. Lyons for the plaintiff. In the case of Rut-The ledge v. Rutledge (3 J. & Lat. 307, S. C. 8 I.E.R. 84), after the new rules of March 1843, a supplemental bill was filed against judgment creditors of the inheritor to have the benefit of a decree for a sale made in 1847, and it was held that these creditors were properly made notice parties, and a decree was made that they should have liberty within a limited time, to surcharge and falsify the original accounts. Also, in M'Dowell v. Skerrett, reported in the note to Rutledge v. Rutledge, a similar decree was made. These cases establish that under the old practice, judgment creditors not before the court when a decree was pronounced may be made notice parties to a supplemental bill. Since the late general orders these cases are stronger than the present, for according to the old practice, judgment creditors should be made answering parties, and the original bill, in the present case, was filed since the new rules, by which it is only necessary to have made judgment creditors notice parties in the original cause. MASTER OF THE ROLLS.-I will make the order in this case in the same form as that in Rutledge v. Rutledge. "Let the plaintiff's bill in this cause be taken pro confesso against the said defendant, Thomas Walker, for want of answer; and let the said J. Coote, &c. be at liberty to surcharge and falsify the accounts under the decree to account in the original cause, wherein R. C. Williams was plaintiff, and the said Thomas Walker and several others were defendants, bearing date the 30th day of May, 1845, provided the said defendants shall do so within such period as William Brooke, Esq., the Master in said original cause, shall appoint; and in case the said defendants shall not so surcharge or falsify said accounts within the period to be so limited by the said Master, then let the said plaintiff's have Held, that the traverse did not throw the onus upon the defendant of proving a knowledge, in the plaintiff, of the illegality before and at the time of his becoming holder, as if he proved a notice of it before he became so, it would follow he had it at the time. This was a writ of error from the judgment of the Court of Queen's Bench, (reported Il Ir. L. Rep. 306). The action was assumpsit upon two bills of Exchange by the indorsee against the acceptor. The declaration contained two counts The deon the bills, and the money counts. fendant pleaded non-ussumpsit to the whole declaration, and to the counts upon the bills, "That before the accepting of the said bills of exchange in the said first and second counts mentioned, or either of them, by the defendant as therein mentioned, to wit, on the 21st day of June A. D. 1845, at Dublin, in the county of the city of Dublin aforesaid, the defendant did lose to one George Maugham, and the said George Maugham did win of the defendant, a certain sum of money, to wit, the sum of £500, by gaming and playing at a certain game called “hazard," and the said sum of £500 so lost by the said defendant as aforesaid, and so won by the said George Maugham as aforesaid, being and remaining unpaid and unsatisfied, heretofore, to wit, on the 21st day of June, 1845, to wit, at, &c., aforesaid, it was agreed between the said George Maugham and the defendant that the Lefroy, B. sitting in Equity Exchequer. payment thereof should be secured by two bills of exchange to be accepted by the defendant; and the defendant avers that in pursuance of the said agreement, to wit, on the day and year last aforesaid, to wit, at, &c., the defendant, for securing the said payment of the said sum of £500 so won and lost as aforesaid, accepted the said two bills of exchange in the said first and second counts respectively mentioned, contrary to the statute in such case made and provided; and the defendant avers that the said two bills of exchange so accepted as aforesaid were and are the identical bills of exchange in the said first and second counts respectively mentioned, and the defendant further saith, that the plaintiff, of exchange against the acceptor. The defendant consideration." before and at the time when he first became and was the indorsee and holder, and interested in the said two bills of exchange, or either of them, to wit, on the 21st day of June, A. D 1845, to wit, at &c., aforesaid, well knew that the same had been, and were, and that each of them had been, and was so made upon and for the said illegal consideration." To the plea, the plaintiff, protesting that there was no such illegal agreement as that stated in the plea, and that the said bills were not given upon an illegal consideration, replied, "that, the said several bills of exchange in the said first and second counts respectively mentioned, were in dorsed to the said plaintiff after the 31st day of August, A. D. 1845, and before the said bills respectively became due, to wit, on the day and year in the said declaration in that behalf mentioned, to wit, at, &c, aforesaid, for valuable consideration: that is to say, for and in consideration of the said plaintiff discounting the same and paying therefor to the said George Maugham, being then and there the holder thereof respectively, a large sum of moderation. This is the real meaning of the plea. ney, to wit, the amount of the several sums of money in the several bills of exchange respectively mentioned, less by the interest thereon for the time which the said several bills respectively then had to run; and that he the said plaintiff did not before, or at the time when he first became and was the indorsee and interested in the said two bills of exchange, or in either of them, to wit, on the 21st day of June, A. D. 1845, to wit, at, &c., know that the same had been or were, or that either of them had been, or was, made upon or for the illegal consideration in the second plea of the said defendant alleged; and this he the said plaintiff prays may be inquired of by the country," &c. Mr. C. Kelly with Mr. Napier, Q. C., for the plaintiff in error. Mr. A. Maley, with Mr. Gilmore, Q. C., for the defendant. [The following books and cases were cited and commented on: 3 Chit. Pl. 1146; Steph. Pl. 272, (5th Ed.); Horn v. Boulcott, (1 Bing, N. C. 323. S. C. 1 Scott 122); Humphreys v. O'Connell, (7 M. & W. 370, S. C.; 9 Dow. P. C. 213); Goreham v. Sweeting, (2 Saund. 207, note a); Cowlishaw v. Cheslyn, (1 Cr. & Jer. 48); Eden v. Turtle, (10 Mee. & W. 635); Alsager v. Currie, (11 M. & W. 14); Hedges v. Sandon, (2 T. R. 432); Marston v. Allen, (8 Mee. & W. 494)] Blackburne, C. J.-This is an action of assumpsit, and the declaration contains two counts on separate bills of exchange, and the money It is an action by the indorsee of a bill counts. The next objection is of the same kind, namely, that the replication is bad, because it avers that the plaintiff did not know that the defendant lost the money (i. e. for or "upon the consideration in the second plea alleged") at the game of hazard, and does not deny that it was lost at any other gaine. To this objection the answer is, that the words of the replication being the same as the plea, the construction must be the same. The traverse is of the very matter alleged in the plea, and the words are co-extensive. The next objection is that the tra verse should be in the disjunctive-that the tra verse is in such a form as would require from the defendant proof of notice before, "and" at the time of the indorsement, whereas notice, before “or” at the time would sustain the plea. This objection is untenable. If the defendant gave proof of notice before the plaintiff became indorsee, such proof will of necessity establish that he had notice at the time of his becoming indorsee; nor is the defendant inconvenienced in any defence he could have made. Independently of this, the traverse is right in form, simply negativing the form of the plea. The last objection is, that the replication does not deny that the plaintiff had notice when he became the holder. This is in effect the same as the first objection, and is to receive the same reply. All the allegations are connected with the copulative "and,” traversing the single averment in the plea, that the several acts were done at the same moment of time. We are therefore of opinion, that the judgment of the court below must be affirmed.—Judgment affirmed. COURT OF EXCHEQUER CHAMBER. Covenant, construction of-Evidence-Bill of Where in a lease there are covenants for renewal and nant. Held that evidence of the value of a lease was ad- Held that where the renewal, if granted, would be per This was error from the judgment of the Court of Queen's Bench, on exceptions to the ruling of the Lord Chief Baron, on the trial at Armagh Summer Assizes, 1847. The action was in covenant by the assignee of lessee against the personal representatives of the lessor. The declaration contained four counts upon the same covenant. Pleas, non est factum to the lease of 1800, and also to the assignment | of it in 1820, and plene administravit. There were other pleas which were not now before the court, being held bad upon demurrer (reported 5 I. L. R. 540.) The second count (which alone was before the court) stated that John Maxwell, on the 1st day of November, in the year 1800, demised to Joseph Craig, his executors, administrators, and assigns, certain lands with the appurtenances, except as therein excepted, to hold with the appurtenances except as aforesaid, to the said Joseph Craig his executors, administrators, and assigns, from the said 1st day of November, 1800, for the term of twenty years, at a certain rent, "and the said John Maxwell did in and by the said last mentioned indenture for himself, his executors, administrators, and assigns, covenant, promise and agree to and with the said Joseph Craig, his executors, administrators, and assigns, that at the expiration of the demise then granted, he, the said John Maxwell, his executors, administrators, and assigns, would renew the then present lease, or any future lease which should be granted of the said last mentioned premises, by adding thereto such number of years as in that present demise, that is The difference of opinion in the Court was rather on the result of the evidence, than on te legal propositions here stated. to say the term and space of twenty years, and so on at the end or expiration of every term, he the and assigns, should and would make out a new lease, said John Maxwell, his executors, administrators, should be granted of the said last mentioned preor renew the then present or any future lease which mises, for the term and space of twenty years, and so on to be continued." The declaration then stated a covenant by the lessee, his executors, administrators, and assigns, to pay to the lessor, his executors, administrators, and assigns, a triennial fine of £1 2s. 9d. during that demise; the entry of the lessee; the assignment on the 17th April, 1820, by the lessee, of his whole interest to William Craig, in as beneficial a manner as he held it himself, and subject to all the covenants of the original lease of 1800; that William Craig, being so possessed of the said term, and of the said right of renewal, died in the month of April, 1820; that the plaintiff Jane Kean, before her marriage, took out administration, and became thereby possessed of the residue of the said term of twenty years; and her marriage with the plaintiff in October, 1820; the death of John Maxwell the lessee, on the 20th of January, 1820; and that the term of twenty years granted by the said John Maxwell, expired on the Ist of November, 1840. The regular payment of the triennial fines by Joseph and William Craig, and by said Jane before her marriage, and by her husband and her since her marriage to the said John Maxwell in his life-time, and to his executors since his death, and the demand of a renewal by the plaintiff, and the refusal of the defendants. In the lease, after some intervening covenants, there was a qualified covenant for quiet enjoyment as follows-" And the said John Maxwell does covenant, promise, and agree to and with the said Joseph Craig, his executors, administrators, and assigns, that he and they paying the hereby reserved rent and receiver's fees and duties, and performing the conditions hereinbefore mentioned and expressed shall and may quietly and peaceably hold, and occupy, and enjoy the hereby granted premises with their and every of their appurtenances, except as before excepted, without the let, hindrance, or molestation of him the said John Maxwell, or any other person deriving by, or from, or under him." The plaintiff gave in evidence the lease of 1800, and the assignment in 1820; endorsed on the lease of 1800 was the following memorandum: "Received from the within-named Joseph Craig the sum of £950 sterling, as a fine for the withinmentioned lands of Manooney, given under my hand this first day of November, 1800. and told, and directed the said jury that it did not amount to a contract that John Maxwell would have such an interest as would enable him, at the expira tion of the lease, to grant such renewal; and the learned Judge read to the said jury the covenant for quiet enjoyment contained in the said lease, and told them that the latter covenant was such that if an eviction by title paramount, that is to say, by any person claiming and having title not derived through or under John Maxwell, took place during the term of the said lease, or after its expiration, and after a renewal of it damages could not be recovered for such an eviction upon the last mentioned covenant, or upon a similar covenant contained in such renewal. And the learned Judge told the jury that as no da mages could, in such case, be recovered on the corenant for quiet enjoyment, then, if no valid renewal could have been granted by the executors of John Maxwell, he would, without giving them a positive direction upon the amount of damages, which was a matter entirely for the jury, advise them to give nominal damages only; but the learned judge fur ther told and directed the jury, that a material question for the consideration of said jury upon the said evidence was, whether, at the time of the execution of the said lease of the 1st day of November, 1800, by the said John Maxwell, there was in fact such an estate or interest in the said premises vested in the said John Maxwell as would have enabled him or his executors to grant a valid renewal of the said lease at the expiration thereof, whereupon the said counsel for the said defendant did then and there except to the said opinion and directions to the said Evidence of the payment of the rent and renewal fines to John Maxwell and his executors, under the lease of 1800 was also given. Mr. H. L. Prentice, a witness for the plaintiff, was asked what was the value of such a farm held under a College lease, taking into consideration the risk on the one side that the College might not renew, and the chance on the other side that they would? The question was objected to, but admitted by the Lord Chief Baron. There was no evidence of any demand of renewal, nor of any tender for execution by the plaintiff of any deed of renewal, all of which matters were subject of exception by the defendant. The defendant gave evidence that the lands in question were a part of the College estate, and proved a lease of them to Robert Maxwell for twenty years from the 30th of March, 1754, and renewals thereof to 1769. On the 22nd of February, 1774, the lease was renewed to Henry Maxwell, to whom the renewals were granted till 1816, after which period they were made to Maxwell Close till 1824, the last renewal proved. The payment of rent under the lease was proved, the practice of the College to renew, and the will of Robert Maxwell, the first lessee, whereby he devised his interest to Henry Maxwell, and that probate thereof was granted to John Maxwell, one of the executors; that Henry Maxwell in 1816 devised his interest to the Reverend Samuel Close, who, on the 31st of December, 1816, devised his interest to Maxwell Close; that Henry Maxwell had possession under the will of Robert Maxwell, and that John Maxwell, who made the lease of 1800 to Joseph Craig, paid a rent of £19 10s. to Maxwell Close for the premises demised by John Maxwell injury of the said learned Judge as well because he the lease of 1800; that Maxwell Close had given John Maxwell notice to quit, and recovered possession of these premises under a judgment in ejectment in Hilary Term, 1822, and continued in possession till he sold the land to the defendant Strong. Evidence was given of a search for the habere under which Maxwell Close obtained possession, but that it could not be found. There was no evidence of rent being paid to any person by J. Maxwell prior to 1818. The defendant admitted assets. The charge of the Lord Chief Baron was thus stated in the bill of exceptions: And the said counsel for the said defendant did then and there insist that the said learned Judge ought to direct the said jury that inasmuch as it so appeared in evidence as aforesaid that all the estate and interest which the said John Maxwell in his life time had or the said defendants his executors as aforesaid as such executors had in the said premises demised by the said lease of the 1st day of November, 1800, were evicted as aforesaid by the said Maxwell Close, having such title paramount thereto, as aforesaid, the said plaintiff was not entitled to a verdict for more than nominal damages; but the said learned judge then and there refused so to inform . and direct the said jury, and on the contrary thereof, after stating to the jury the issues upon which they were to find, and the evidence relating to the said issues, told the said jury that they were also to assess the damages sustained by reason of the breach of covenant stated upon the record, and that the question of damages was one entirely for the jury; and the learned Judge read for the said jury the covenant for renewal contained in the lease of 1800, refused so to inform and direct the said jury as last aforesaid prayed by the said counsel for the defendant, as because he so informed and directed the said jury as last aforesaid, and they were by him informed and directed as to a material question as aforesaid for them upon said evidence. And the said learned Judge further held and so informed the said jury that the said lease of the 1st day of November, 1800, if unexplained and in no way affected by other evidence, would import on the face of it that the said John Maxwell had an estate in said premises co-extensive with that which he professed to grant thereby, and that there was a distinct intimation given by the said lease to the lessee thereof that he, the said John Maxwell, then had a lease under the said College, of the said premises mentioned in the said lease of the 1st day of November, 1800. And the said learned Judge further informed the said jury that if the said John Maxwell was, at the time of the execution of said lease of the 1st day of November, 1800, the owner of a lease of the said premises from the said College, then it was clear from the practice disclosed to the said jury by the said witness, Joshua Nunu, that there might have been an interest in the said John Maxwell or the defendants, his executors, out of which a renewal of the said lease of the 1st day of November, 1800, could have been granted to the present plaintiffs, and that though the legal interest in such lease under the said College, if any, was not vested in the said John Maxwell, yet if any party was interested therein as a trustee for him, an equitable estate might have been granted to the said plaintiffs by an instrument purporting to be a renewal. And the said learned Judge further held and |