:

quite satisfied that the intention of the parties was, that the de-
fendant should be responsible for goods supplied to David M'Kean,
to the amount of £30 a-month. Upon the other question in the case
the matter is a little complicated, but the substance of it is this:-
the defendant alleges that, by reason of his not having received due
notice of the dishonor of the bill of exchange, he is discharged not
only from the bill itself, but also should get credit for the amount
thereof out of the sum which would otherwise be due on foot of the
guaranty on account of which it was given. It has scarcely been
contended that there is on the record any plea or defence to the
counts on the guaranty raising this question: there clearly is not.
Then it has been suggested that I should have allowed the defences
to be amended at the trial, so as to raise this question. In answer
to this I may say, as has in fact been stated by defendant's Counsel,
no such application was made to me at the trial, in any way, re-
quiring an opinion from me. What occured was just this:—when I
stated my opinion as to the construction of the guaranty, plaintiff's
Counsel submitted he was entitled to receive on foot thereof the full
sum due, even though the jury should be of opinion the plaintiff was
not entitled to recover on foot of the bill of exchange, for want of
notice. Defendant's Counsel, in answer, suggested that he should be
allowed to amend his defence, and file a new defence raising the
question; to which plaintiff's Counsel insisted that, to render such a
defence good in point of law, it should be averred not merely that
the bill of exchange was given on account of the sum due on the
guaranty, but in discharge and satisfaction thereof; and that there
was no pretence for such being the case in the present instance.
Defendant's Counsel apparently acquiesced in this view of the law,
and did not press the application to amend. And the question for
our consideration therefore now is, whether at this stage of the case,
after verdict, we should allow the defendant to plead a new defence
to the count on the guaranty. We do not think we are now called
on to decide whether if the defendant had originally pleaded such a
defence, he would not have been entitled to succeed thereon; but
he having advisedly in answer to the claim on the guaranty,
confined his defence to its construction, and insisted merely that his

E. T. 1864.
Common Pleas

TENNANT

v.

ORR.

TENNANT

บ.

ORR.

E. T. 1864. liability did not exceed £30, while as a defence to the claim on foot Common Pleas of the bill of exchange, he relied on the want of notice; we do not think that, in the exercise of our discretion, we should at this stage of the case set aside the former verdict, and allow a new defence to be filed, more especially in a case in which, to say the least of it, it did not distinctly, or, perhaps I might say, at all, appear that the defendant was in fact prejudiced by the want of notice of dishonor of the bill by the acceptor, who is of course still liable on foot thereof to the defendant.

We think, therefore, that the verdict should stand for the full amount, and the cause shown be allowed.

H. T. 1863.
Jan. 26, 27.

BAYLEY v. THE MARQUIS CONYNGHAM.

An action was THIS was an action for the disturbance by the defendant of the brought for the interruption plaintiff in his enjoyment of certain incorporeal tenements. The of the plaintiff first count of the summons and plaint stated that the defendant in his fishery,

and hindrance

&c., which had had let unto plaintiff the Glentees shootings, and a certain fishery,

been let to him

by the defend for one year, at a certain rent, and that, before the expiration interrupted and hindered the plaintiff from the

ant by parol for a year. The defendant having traversed the fact of the

letting of the fishery to the plaintiffHeld (CHRIS

of said year, he

enjoyment of it.

of the contract.

There were other counts varying the statement
The defendant, amongst other defences, traversed

the plaintiff's tenancy. At the trial, at the Sittings after Michaelmas Term 1862, before MONAHAN, C. J., it was proved that, after TIAN, J., dis- a correspondence with a Mr. Russell, who was the agent of the sentiente), that though an in- Marquis Conyngham, as to the character of the Glentees shootcorporeal hereditament, ings and fishery of the river Ower, the plaintiff came over to there was such

an agreement Ireland in August 1861, and agreed with the plaintiff to take the by the plaintiff

to hold, what

was equivalent to land, under the defendant, in consideration of a rent for a period not exceeding a year, as would by the combined operation of the 3rd and 4th, sections of the Landlord and Tenant Law Amendment Act (Ireland) 1860 create the relation of landlord and tenant, and that the action was maintainable.

Held, per CHRISTIAN, J., that the 2nd section of the Statute of Frauds, 7 W. 3, c. 12 (Ir.), prevented the application of the above Act to the present case, and that the action did not lie.

Common Pleas

BAYLEY

v.

MARQUIS

CONYNGHAM

shooting over 10,000 acres, and Lord Conyngham's part of the H. T. 1863. fishery of the river, together with the use of a shooting lodge for three months in the year, at a rent of £150 per annum, for three years, with a power of holding them for five. Shortly after, he became dissatisfied with the shooting; and a new verbal agreement was afterwards made that he should hold only for one year, paying a year's rent. The defendant paid half a year's rent in November 1861; he fished till the 30th of September, which was the end of the season; he shot till November; he considered the year to run from the 1st of August 1861 until the corresponding period of the following year. The plaintiff's son-in-law, when he went to fish, was interfered with by the defendant in April 1862. Counsel for defendant, at the close of plaintiff's case, called for a nonsuit, or a direction in his favor, on the ground that the letting relied on could not be made without deed or writing. His Lordship refused so to direct, but reserved leave; and the defendant, having gone into evidence, called a Mr. Russell, who deposed that the agreement was, that the plaintiff should hold the preserve to the end of the season, paying the year's rent; and that when he hindered the son-in-law, he considered that the season had expired. The jury found for the plaintiff, with one shilling damages.

A conditional order having been obtained to change the verdict into one for the defendant, or for a new trial—

Macdonogh (with him J. T. Ball) showed cause against the conditional order.

The 4th section of the Landlord and Tenant Consolidation Act* (24 & 25 Vic., c. 154) applies to incorporeal as well as to corporeal hereditaments. This is manifest from the definition of certain terms in the glossary to the Act. The word "lands"

4th section :-"Every lease or contract with respect to lands, whereby the relation of landlord and tenant is intended to be created for any freehold estate or interest, or for any definite period of time not being from year to year, or any lesser period, shall be by deed executed or note in writing signed by the landlord, or his agent thereunto lawfully authorised, in writing."

Common Pleas.

BAYLEY v.

MARQUIS

CONYNGHAM

H. T. 1863. is made to include houses, messuages and tenements, of every tenure, whether corporeal or incorporeal; this must be read as if incorporated in the 4th section. Certain contracts therefore, relating to incorporeal as well as to corporeal hereditaments are excepted from the necessity of being under seal. Whenever the relation of landlord and tenant is intended to be created for any freehold estate or interest, or for any period beyond that, if from year to year, a note in writing is necessary-not so for a shorter period. The Statute of Limitations (3 & 4 W. 4, c. 27) shows by its glossary that when the intention of the Legislature is to limit or restrict the construction of the Act, such is expressly stated. A corporation cannot, as a general rule, contract except under seal, yet they can in some instances do so. The title of the Act shows what its object was, "To consolidate and amend the Law of Landlord and Tenant in Ireland." That was not to limit its operation. If these tenancies from year to year of a fishery be not included within the meaning of the 4th section, it will follow that a fishery may be let for a long period by a note in writing, but not for two days without a deed. An action of trespass will lie for an injury done to a fishery. It may also be made the subject-matter of ejectment.

The following authorities were referred to:-Finlay v. Bristol and Exeter Railway Company (a); Dwarris on Statutes, 2nd ed., pp. 552 and 567; The King v. Old Alresford (b); Adams on Ejectment, p. 18; 2 Chitty on Pleading, 7th ed., p. 39; Doe d. Pennington v. Taniere (c); Jones v. Reynolds (d); 2 Taylor on Evidence, 806.

Sergeant Armstrong and J. P. Hamilton, contra.

The 4th section of the present Landlord and Tenant Consolidation Act differs from the Statute of Frauds, in limiting the tenancies to one year, or from year to year, instead of three years, as formerly. The word "tenement" will apply to corporeal as well as incorporeal; but it is not contained in the section under discussion.

(a) 7 Ex. Rep. 416.
(c) 12 Q. B. 1013.

(b) 1 T. R. 361.
(d) 4 Ad. & Ell. 805.

Common Pleas.

He referred to The Duke of Somerset v. Fogwell (a); Bond v. H. T. 1863. Higgins (b); Arthur v. Bekenham (c); Dwarris on Statutes, p. 568; Wood v. Leadbitter (d); Holford v. Pritchard (e).

Ball, in reply.

The glossary and interpretation clause give a key to this Act, and show that the policy of the Act was to assimilate the relation of corporeal and incorporeal; that whatever could create an estate in one should also in the other. It was to remedy defects; for example if land were given, it might be done by parol; if the right of cutting turf, a deed would be required. The interpretation clause of this Act extends the word "lands" to incorporeal hereditaments, as by the 3rd section the relation of landlord and tenant was intended to be created in respect of incorporeal hereditaments. Upon the true construction of the statute the 4th section was intended also to apply to incorporeal as well as corporeal hereditaments: Heydon's case (f); Warburton d. Loveland v. Ivie (g); Beck v. Smith (h); Bac. Abr. tit. Statute, p. 459. Cur. adv. vult.

BAYLEY

บ. MARQUIS CONYNGHAM

MONAHAN, C. J.

This case arises upon the construction of the recent Landlord and Tenant Act; and I regret very much that the Court have not been able to come to an unanimous decision. I must say, however, for myself, that I have had great difficulty and much consideration in arriving at the conclusion to which the majority. of the Court have come. The action was brought by Mr. Bayley against the Marquis Conyngham, for having disturbed him in the enjoyment of certain shootings and fishings, which it was alleged by the summons and plaint the agent of the Marquis Conyngham had let to him for one year. The summons and

(a) 5 B. & C. 875.
(c) 11 Mod. 161.

(e) 3 Ex. Rep. 793.
(g) 1 H. & B. 648.
VOL. 15.

(b) 2 A. & E. 696.
(d) 13 M. & W. 838.

(f) 3 Rep. 7.

(h) 2 M. & W. 195.

52 L

April 30.