that question. It is not alleged that the plaintiff by the bond was punctually paid; and this is the case at any period waived her right to punctual payment, to be met by the other side; and it is met in this but she states that the irregularity of the payment manner, by an allegation that there was a continual was what compelled her to urge her legal rights. default in the payment of the interest; and then it The terms of the defeazance are obvious: it would is admitted by the defendant that there has been a only take effect if the interest was punctually paid. default, at least as to one half-year's interest. The A course of dealing between the parties cannot plaintiff states that she constantly protested against have the effect relied upon in reference to an in- the irregularity of the payments, and at last ap strument under seal; for instance, the acceptance prised the opposite party that she would insist upon of rent will not waive a right of forfeiture incurred payment of principal as well as interest. I therefore by breach of covenant in a lease; but, besides this, think that the former payments must be regarded as in the present case all the payments of interest must an admission of the obligation to pay the interest be regarded as having been accepted under protest. punctually; but in the month of Oct. the case is put The equitable jurisdiction of a Court of Law cannot upon a different footing by the plaintiff. A half-year's be relied upon in such cases. Rose v. Tomlinson, gale was then unpaid, and before any tender was made, (3 Dowl. P. C. 49.) The authorities referred to by a distinct intimation was given to the defendant, the other side are chiefly cases of bonds given for after a default had been made, that the plaintiff the purpose of securing annuities, and, therefore, would take advantage of that default: and notwithdistinguishable; and the other cases are mere dicta. standing that warning the next gale is allowed to pass PIGOT, C. B.-The present case must be regard- unpaid. Therefore, as regards the course of dealing ed as involving two questions: the first whether the between the parties, no contract or new agreement contract contained in the memorandum at foot of as to the payment of the interest can be inferred, the bond, and which has been treated in the discus- and the party originally entitled to insist upon her sion of the case as amounting to a defeazance, is rights is a fortiori so entitled when, after an inti such as to allow the party holding the bond to issue mation of her intention of availing herself of her execution; and secondly, whether such a course of rights, a second gale was allowed to pass unpaid; dealing has taken place between the parties as dis- and I am therefore of opinion that we must hold entitles that party so to act. I will consider the that there is not sufficient evidence that the party's latter question first; and I own that there was a right, arising out of the memorandum, has been strong impression upon my mind in favour of, and altered by the course of dealing between the parties. I was much disposed to adopt the view that had If therefore the case of Rose v. Tomlinson, (3 Dowl. been taken of the case in chamber by my brother P. C. 49), be rightly decided, it must rule the prePennefather; for, if there had been between these sent case, as also the case of Leveridge v. Forty, parties such a course of dealing as that it could (1 M. & Sel. 706), at least in principle. The terms have been inferred that a contract had been thereby of the memorandum are, "that no execution shall established between them, and that there was ex- issue on the above bond during the lifetime of J. isting an agreement between the plaintiff and de- M. Rivers, provided the interest be regularly paid fendant, that the interest should be paid and ac- at the time and according as it accrues due, and cepted upon different terms and in a different man- not otherwise." This is the sole condition under ner from that laid down in the memorandum, I which the plaintiff's right to issue execution is to would not have been disposed to hold that the plain- be suspended, namely, the regular payment of intiff was entitled to execution because of the non-terest, and if that be not made, the party is entitled performance of the contract contained in the bond. This is not a contract concerning lands; nor is the memorandum under seal; but it is a defeazance of a bond and warrant of attorney which is under seal. It certainly is in writing, but it has merely the effect of controlling the rights of the party, and limiting that right in case of a failure to pay the interest punctually; and there is nothing in it preventing the parties from entering into a different agreement from that which it contains, as to the acceptance of the interest upon the principal sum upon a different day from that originally agreed upon. But we need not now decide whether such a contract as that I have referred to, would be binding between the parties, nor whether such a contract could be inferred to arise from a particular course of dealing, for we are of opinion that we cannot infer such a contract from the transactions that have taken place between the plaintiff and the defendant in the present instance. The case made by the defendant could not lead us to such a conclusion, for he does not in his affidavit rely upon such a course of dealing, but states that the interest upon the sum secured

to issue execution, that sole condition not having been performed. This is a stronger case than that decided in 1 Mau. & Sel., and as strong as the case in 3 Dowl. P. C.

Pennefather, B.—I concur in the judgment of the Chief Baron. Upon the former hearing of the case in Chamber it appeared to me that there was evidence sufficient to raise a new contract between the parties, different from that appearing upon the bond and warrant of attorney; but upon a recon sideration of the facts, I am disposed to adopt a dif ferent opinion. When the motion was originally made I considered the case a doubtful one, and I gave the plaintiff the costs of the motion accord ingly, and for that reason she will be still entitled to them, and we will give no costs of the present motion. The former order is therefore to be varied, save as to costs.

GREENE, B. concurred.

Rule accordingly.

Kernan for the respondent, contended that he had offered the petitioner the value of the crops, £70, and also the balance of the rent paid in ad vance. The tenant had here taken out his lease after he had notice of the order of the court deter mining the tenancy. The court should do equity between the parties, and not send them into a Court of Law to establish their rights. In O'Connell v. O'Callaghan, (3 Ir. Eq. Rep.) it was held that a tenant under the court, pending the suit, was in the nature of a tenant at will, and was entitled to emblements. Baron Pennefather there said, "The tenant is the person materially interested in the question, and ought to have notice of this application. We deal with tenants under the court in this respect, as if they were tenants at will, and a tenant at will is entitled to emblements, therefore, before we permit the injunction to be executed, where the cause is suddenly terminated, we require to be satisfied that no injustice would be done thereby to the tenant." We contend that no injustice would be done here, because we offer to pay the value of the crops. Gaston v. Nangle, Dillon and others, (Hay. & Jou. 542.) If the court adopt the Emblements Act, it may decide the rights between the parties; but, is the effect of the Act such as to alter the practice of the court between a landlord and tenant?

be allowed him on the first and second years of his tenancy, this letting was approved of by the Master, as appeared by the rulings. He entered into possession on the 22nd of October, 1853, under his proposal, and took out his lease executed on the 15th of February, 1854. By a consent entered into between the petitioner and respondent, on the 9th of February, 1854, it was consented that the receiver be discharged, and this consent was made a rule of court on the 17th of February, 1854, the respondent then caused the said Joseph Mulcahy to be served with a notice on the 24th of February, 1854, apprising him that his tenancy had determined, and requiring him to deliver up possession on the 2nd day of March, 1854, and that if he refused to do so, an application would be made to the court to put the respondent in possession, and offering to repay to the said Joseph Mulcahy the balance of the sum advanced by him, deducting the portion of the rent from the 29th of September, 1853, until possession should be so given. On the 20th of March, 1854, the respondent's agent came on the lands, and after viewing and valuing the crops sown by the said Mulcahy, prior to the 28th of February, tendered to him the sum of £89 8s. 7d. being the balance of the sum of £175, paid by the said Mulcahy to the late receiver, after deduct ing rent up to the day of the tender, and also tendered £70 for the value of the crops sown on the lands prior to the service of the notice of the 28th MASTER OF THE ROLLS.-This would be a case of February, and also tendered a proportion of of peculiar hardship upon the tenant if he could not whatever sum had been paid for taxes, and required avail himself of the statute. There was a letting. possession on the following day. Mulcahy refused in October at £175 per annum, which was to be the possession, and demanded £500 for the value paid in advance. The Master is not justified in of his crops, together with the proportion of the making such a letting as this, or in permitting morent paid in advance. The petition prayed an in-ney to be got in advance from a tenant, when the junction to put the said respondent in the suit into possession, and a conditional order had been granted on the 30th of March, for that purpose, unless cause shown in ten days. Joseph Mulcahy filed an affidavit showing as cause against the conditional order, that he had expended a large sum of money on the lands in manure and in preparing 46a. for tillage, 17A. of which he had sowed at the time of the order, and that he had expended about £280 in cultivating the lands, and that the occupation rent for that unprofitable portion of the year was too high.

Deasy, Q.C.(with whom was F. McCarthy,) now showed cause against the conditional order, and contended that upon the facts of the case, the court should uphold the contract which had been made by the receiver as their officer, and with the consent of the Master, which was, that the tenant should retain pos. session, at least, for the year for which he paid in advance. Further, that under the late Statute 14 & 15 Vic. c. 25, concerning emblements, the tenant was entitled to remain in possession until the end of the year of his tenancy. Under the 1st section, where a tenancy determines by the cessation of any estate of any landlord entitled for his life, or for any other uncertain interest, instead of claims to emblements the tenant shall continue to occupy the farm until the expiration of the then current year of his tenancy and this is applicable to tenancies under

the court.

F. McCarthy in reply, cited Creed v. Creed, (3 Ir. L. R. 207.)

lands can only be let pending the continuance of the cause. The Master should have regard to the practice of the court, and not make lettings on these terms. In this case the tenancy determined before the end of the first half-year, though the year's rent was paid in advance. The tenant paid £175 in October, then entered into possession, and cropped the land, expending large sums of money upon it. What, then, was the offer that was made to him in February? It was to deduct from the £175 a rateable proportion of the rent for the time he was in occupation, and allow him their valuation for the crops: and what is the result? He paid £175; and, after all his trouble, he is now offered £159 in all. After being at great expense in labouring and cropping the ground, he is to be at a loss of £16 of his own money, beside all his expenses on the land. Here the suit was put an end to by the payment of the incumbrance, and part of the money obtained from the tenant was applied for the very purpose of determining the tenancy. It is obvious, then, how very great injustice would be done to this man if he were to be put out of possession. It has been decided that a tenant under the court is entitled to emblements; but now, under the 14 & 15 Vic. c. 25, instead of the new landlord having a right of entry, the tenant is given a right to remain in pos session until the next gale day after the late landlord's interest is determined. The only question that could arise is, whether tenants to the Court of

Chancery come within the words of the statute. and I think that they are comprehended within its meaning. I will, therefore, not allow the injunction to be issued before the 29th of September next, and will allow the cause shown with costs; but, if the tenant does not give up possession on the 29th of September, I will charge him with all the costs of the proceedings.

“Allow the cause shown with costs, to be paid by the said respondent to the said Joseph Mulcahy, when taxed and ascertained, and refer it to one of the Taxing Masters of this court to tax said costs, Mr. J. Mulcahy undertaking to deliver up possession of said lands of Baptist Grange to the receiver on the 29th of September next."

that defendant has now been for 11 years in undis. puted possession of the office of Clerk of the Peace for Londonderry.

Major, Q.C., (with whom was D. M'Causland,) now moved, pursuant to the notice, for liberty, under the 178th Rule, to issue a venire de novo, and so proceed with the action, notwithstanding the time which had elapsed since the last step was taken in the cause. The rule in question provides that after the lapse of two years, the party requiring the rule to proceed shall serve notice of motion, and apply to the court for the same.

J. Brooke, Q. C. and W. Henderson, contra.— This motion ought not to be granted. If the judgment of the court in this case were right, which we submit it was, why should it give the plaintiff the extraordinary privilege of renewing his action after

NOTE.-See Stradbroke v. Mulcahy, (2 Ir. Com. Law nine years have elap el? The attorney states that Rep. 406.)

for want of means his client was prevented from proceeding with the new trial when the venire de COURT OF QUEEN'S BENCH. novo was awarded. But it does not appear that the means of the plaintiff have improved in the mean [Reported by FLORENCE M'CARTHY, Esq., and SAMUEL time, or that he is better able to go to trial now V. PEET, Esq., Barristers-at-Law.] than at the former period. By the 38 Geo. 3, c. 2, a EASTER TERM, 1854. quo warranto in this country cannot be prosecuted KENNEDY V. GREGG.-April 29. after six years have elapsed. Even independently of the statutes, the courts have exercised an aualoPractice-Rule to proceed-178th Rule. gous jurisdiction. In R v. Brooks, (8 B. & C. Where the verdict which a plaintiff had obtained 321,) where a party had been sworn into and had below was set aside upon a bill of exceptions, and exercised a corporate office for more than six years, a venire de novo awarded in the year 1845, and the court, in the exercise of their discretion, and liberty had been given to the plaintiff, in 1847, to without deciding whether he was protected by a proceed which had not been acted on, and he again particular statute, refused to grant a quo warranto in 1854, applied for similar liberty under Rule information against him, on the ground of his not 178, upon an affidavit that he had been previously having been sworn in before the proper officer. R. prevented by want of means, and had now been v. Trevenen, (3 B. & Al. 333,) where it was held advised by counsel that he would be likely to suc- that the court will not make such a rule absolute ceed, the Court having regard to the unanimous where a relator appeared to be in indigent circumjudgment which had been delivered on the occa-stances, and there were strong grounds of suspicion sion of the allowance of the exceptions, and to the fact that the question of principle at issue had been settled, for the future, by an Act of Par liament, and to the plaintiff's conduct generally, in the exercise of their discretion, refused the motion with costs.

that he was applying, not on his own account or at his own expense, but in collusion with a stranger. In R. v. Wilkelin, (I B. & A. 50,) the court somewhat relaxed the stringency of this rule, but they required security for costs. The court ought, in the present case, in the éxercise of a sound discretion, to refuse this application, more especially as by the passing of a recent Act of Parliament, the question which has been raised in this case has been settled in conformity with the judgment of the court.

A CONDITIONAL order had been obtained on the 27th of January last, by D. M.Causland, pursuant to Rule 178, that the plaintiff be at liberty to proceed in this cause. This was grounded on the affidavit of the plaintiff's attorney, by which it appeared that a venire de novo had been awarded by M.Causland in reply. In the case of Daly v. this court on a bill of exceptions on the 23rd of Kelly, (2 Ir. L. R. 209,) the plaintiff in scire facias May, 1845; that no step had been taken since, and got liberty to proceed after six years had elapsed. that the plaintiff had been prevented from proceed- There the plaintiff had been very poor, but had, ing to take down the cause again for trial by the shortly before the application, acquired further want of pecuniary means, and that he had been remeans. The present case is one of very great imcently advised by counsel that he would succeed portance to the plaintiff. The defendant has been upon a new trial. An affidavit was filed on the in the possession of the office for the last eight or part of the defendant as cause against the same, nine years, and has no right to complain of the detailing, in part, the leading facts of the case, as plaintiff having lain by. He would be in a posi appearing by the bill of exceptions, (see 8 Ir. L. Rtion to commence a fresh action if this motion were ); also the sundry applications to this court for liberty to enter up judgment on the bill of excep. tions, and likewise, that on the 8th of May, 1847, an orde was taken to proceed, upon a l'erm's notice being given to the plaintiff, but was not acted on;

not granted.

LEFROY, C. J.-This is an application addressed to the discretion of the court, which ought to be granted only where there appears to be a reasonable and proper case for allowing the party to