Reports of one hundred & ninety cases in the Irish land courts [1861-1876]; with preliminary tenant-right chapters

Preface To New Edition

This edition contains 100 decisions not included in the previous edition, 36 of which are now for the first time published. To the very aecurate Reports of Thet Irish Law Times I am indebted for the remaining 64 cases. No decision containing any matter of principle, and not over-ruled in a higher eourt, reported in that admirable publication, has been omitted in this work.

Of the 190 cases reported in the present volume, 76 are not reported elsewhere. 77 cases deal with questions arising on claims under the Ulster Tenant-right Custom. The remaining 113 are conversant with the other sections of the Land Act.

The Land Appeals are entitled as in the Court below — i.e., as claimant v. respondent.

B. DONNELL.

EXTEACTS

FROM THE

PEEFACE TO THE FIKST EDITION.

" The origin of this Treatise was the discussion which arose during the past year on the leaseholders' right to the benefits of the Ulster Custom. The contention against their rights appeared to me so unwarranted by the prevalent usage of the province, as it fell under my own observation, and as disclosed in the evidence of landlords and agents before the • Devon Commission and in other Parliamentary inquiries — so contradictory of the history of Tenant-right, and even of the divisions on and amendments of the Land Act itself — and based, moreover, on such narrow points of law, that I felt it right to put before the profession and the public, in an accessible form, the result of somewhat laborious investigations into the history and nature of Tenant-right and Irish leases on which I had been for a long time engaged. I thought it desirable to add some chapters on other ill-understood Tenant-right questions. Reports of all the Tenant-right cases of any importance have been added — together with reports of decisions on the general provisions of the Act, derived from The Irish Law Times, or from my own acquaintance with the cases. Most of the judgments in the Land Sessions Courts have been revised by the Chairmen who delivered them ; and to those gentlemen I beg to tender my hearty thanks.

" Copies of the proof-sheets of these Chapters on Tenant-right were extensively circulated in last June and July, when

Vlll PREFACE.

the motion of Lord Lifford for the appointment of a Select Committee on the Irish Land Act, and the investigations of that Committee, brought the question of the Ulster Leaseholders' Tenant-right into unusual prominence. I mention this circumstance, not merely because to this limited publication is in some measure due the more favourable acceptance the leaseholders' claim has since received in legal circles — as some of the decisions in this volume testify — but principally because the materials I had collected were freely, but with my concurrence, drawn upon in his evidence by one of the witnesses before that Committee, the Rev. Professor Rogers^ The postponement of the full publication till the present time makes it necessary for me to make this statement, as it might seem that these Chapters, apparently of later date, were suggested by his evidence."

R. D.

Table Of Contents

BOOK L— HISTORICAL.

Pabt I.— political leases.

Chapter I. Tntroddctoby

Leases and Tenant-right,

Number of Farms under Lease and subject to Tenant-right,

Value of the Tenant-right of Lands .under Lease,

The question of Tenant-right in Leased Lands stated,

The Legalization of Tenant-right,

The Town Tenant-right, -

Tenant-right not much spoken of till it was violated,

Chapter II. The Irish Penal And Electoral Laws

Connexion between Political and Social arrangements, Leases to Catholics, - - s -

Admission of Catholics to the Franchise, Changes in the Franchise from 1829 till 1850,

Chapter III. Page

- 17 17

- 17 17,19

17 17 18

19 19 20 20

THE MIDDLEMAN SYSTEM.

Effects of the Penal Laws on the relations of Landlord and Tenant, 21

Absenteeism and the Middleman System in the South, - 21

The Ulster Plantation and the Celtic Irish, - 22

Absence of Middlemen in the North, - - 22

•CHAPTER IV.

STATISTICS OP LEASES AND SUB-DIVISION.

Leases in Down, Leases in Antrim,

23 23

X CONTENTS.

PAGE

Leases after 1829, - - -24

The Forty Shilling Freeholders, - 24, 25

Consolidation of Farms, - -25

Chapter V. Political Leases

Sec. 1. — The Early Evidence.

Wakefield's Account of Leases in Ulster, - - - 27

Rev. John Dubourdieu on Leases in Down, 27

Townsend on Leases in Cork, % - 27

Mr. Hugh Wallace on Political Suh-division, - 28

The Abercorn Leasing Powers Act of 1821, - - 28, 29

Sec 2. — The Later Evidence.

Making Freeholders, - - 30

The War Prices, - - 31

Evidence of Messrs. Joseph Kincaid, Richard S. Guinness, Richard

Beere, John D. Balfe, R. H. Dolling, John Andrews, Thomas

Davidson, A. Spotswood, and David Cather, - 31, 33

Evidence of Mr. J. B. Beresford, Rev. R. Gray, Messrs. C. H.

Kennedy, Alex. Hamilton, R. M'Crea, F. O'Neill, J. J.

Byrne, and H. L. Prentice, - - - - - 34

Evidence of Messrs. S. Glasgow, R. A. Minnitt, E. M'Cabe, T. M.

Gartlan, W. Ford, and Rev. James Porter, - - - 35

Evidence of Capt. E. Archdall, and CoL Blacker, - - - 36

Chapter VI. Covenants In Political Leases

Mr. Guinness on the Leases on the Malone Estates, - - 37

Wakefield on Clauses in Leases, - - 37

Evidence, as to Covenants in Leases, of Messrs Murray and Naper,

Sir P. Nugent, Messrs. M. M. Knox, C. J. Knox, and J.

Duckworth, --.... 38

The Lease generally a Printed Form, - - - - 39

Political Leases and Commercial Leases, - 39

Covenants against Alienation after 1829, • - 39

CONTENTS. XI CHAPTER VIL

INDIFPERENOE OP ULSTER TENANTS ABOUT LEASES.

PAGE

Evidence from the Devon Commission, - - 40

Fall of Prices after the "Wax, - - 41

Variation of Prices and Rents, 1797-1840, - - 41

Indifference of Landlords to grant Leases after the War, - . 42

The Revolt of the Freeholders, - - 42

Anxiety for Leases in the South, - - 43

Exceptional anxiety in the North, - 43

Where tenant-right not acknowledged, - - 43

For facility of borrowing large sums, - - - * 44

The Jurisdiction of "the Office,'* - - 45

Leases not thought worth the Stamps, - 45

The Yearly Tenancy "an understood Lease," 46

Exceptional Commercial Leases, - - 46.

Lottery involved in Leases for Lives, ■ 46

Recapitulation, - 47

Part TL—THE QUESTION OF FACT.

Chapter I. The Early Applications Op The Term Tenant-right

Fleetwood's "Inquiry," - - 49

" Tenant-right of Renewal," ... - 49

The Border Tenant-right, - - 50

The Modern English Tenant-right* - * 50

Dr. Crumpe and Eraser on Tenant-right, - - 51

The Right of Sale as originating in Tenant Insolvency and the

want of a Poor Law, - 52, 53

Chapter II. Early Existence Op The Ulster Tenant-right

Antiquity of the 40s. Freehold Franchise, - - 54 Tenant-right grew up on the large Estates and among the Protestant Tenants, - - - - - - 55

Evidence of Mr. James Sinclair, J.P., on Tenant-right, - - 55

Wakefield's instances of Tenant-right, - - - - 56 xii CONTENTS.

Chapter III. The Leasehold Tenant-bight In The Tenant-bight Bills

PACE

The first Tenant-right Bill of 1835 confined to Leaseholders, - 57

Mr. Crawford's Bills, • - ' 57

The Tenant League Bill, - ' 58

Mr. MT^agan's Amendment on the Land Bill, 1870, to -make a 31

Years' Lease har the Custom, - 59, 60

Chapter IV. The Occupying Lessees' Tenant-bight

Sec. I. — The Evidence in the Devon Commission. Extracts from Evidence, 62, 70

" Fining down" on the Hertford Estate, 69

Sec. II. — The Recent Evidence.

Lord Dufferin's Evidence in 1865, - '0

Evidence in 1867 of Messrs. W. S. Trench, Fitzherbert Eilgate,

and R. Russell, - 70, 71

The Poor Law Inspectors' Reports, 71, 72

Lord Lurgan's Statement in 1872, - 73

Chapter V. The Middleman Tenant-bight

Respective Rights of Middleman and Sub-tenant, 73, 74

Evidence from the Devon Commission, 75, 78

Evidence in hyttU v. Neshitt, 78, 79

Chapter VI. The Tenant-bight System Op Valuation Fob Bent

Fair Rent under the Custom, - - - 80 Concurrent Valuation of Lands under Lease and those held by

Yearly Tenants, - - - - - 80

Mode of Valuation on the Lurgan Estates, - 81

Mode of Valuation on the Abercorn Estate, - 82

Modes of Valuation on the Gosford and Caledon Estate, - 82

Recent Evidence of Estate Valuators on the subject, - 83, 86

Evidence in Thompson v. Hamilton and Burns v. Ranfurly, - 86

CONTENTS. xiii CHAPTER VII.

AQUARIAN OUTRAGE IN ULSTER.

PAGE

Absence of Agrarian Outrage in Ulster, . . 87

"A Tipperary in Down," and its cost, - 88

The Hearts of Steel, - 89

The Murder of Mr. Powell, - . 91

Evidence in the" Devon Commission, 92 94

Chapter III. Objections To Tenant-right

" Eating up the Pee-simple," - 103

"Tenants' Improvements are Landlords' Perquisites," - 103

The Monopoly of Land, - - 104

Tenant-right lowers Police-rates and Poor-rates, - - 105

Increase of Rent on Tenant-right Lands, - 106, 107

Tenant-right and Consolidation of Farms, - 107

Control of Landlord under Tenant-right, - - 108 Effect on Farmers' Capital, - - - 108, 109

XIV CONTENTS.

Chapter I. Natube Of The Ulstee Tenant-bight

PAGE

Essentials of a Tenant-right, . - HO

The fairly valued Bent, ------ 111

Continuousness of Interest, - - 112

The Bight of Realizing the Value of the Interest, - - 113

Chapter II. The Succession Of The Tenant-bight

Transmission by Will and on Intestacy, - 114

Tenant-right Legal Assets, - - - - 115

The Equity Jurisdiction of "the Office," - 115,116

CHAPTER in.

THE LEGALIZATION OF THE CUSTOM.

The first Section not limited to Compensation, - - 118, 121

The first Section an isolated Section, - - 120

Procedure under the Tenant-right, - 120, 121

Chapter IV. The Leasehold Tenant-bight — The Question Of Law

No distinction between Tenants in Sec. 1, - - - - 122

Legislation as to Non-customary Leaseholders, 122, 123

The Ulster Custom more favourable to Tenants than Sees. 3 and 4, 123 Exclusion and Extinguishment of the Custom, ... 124 The Covenant to deliver up, - 124

Implied Agreements in Yearly Tenancies, - 125, 126

The Ulster Custom as a matter of fact, * 127

Declaring by Statute the Custom Legal, - - 127

Judicial Recognition of the English Customary Tenant, - ., 128

The Leaseholders' Claim.of Tenant-right, » 130

Effect of Non-recognition of this Claim, ... 131 jgg

CONTENTS. XV CHAPTER V.

ABB ESTATE RULES USAGES ?

PAGE

Modern Origin of Estate Rules, - - 133, 134

Dr. Ball's Amendment, - - 135

Legal Meaning of Usages, - - - 136, HO

Silence is not Acquiescence, , - 139

The Ulster Usages, - - - 139

" Prevalence in the Province," - -140

Declaratory Legislation, - - 141

Friel v. Lord, Ldtrim, • - 142

Exceptions do not disprove Usage, - 143

What Office Regulations are Usages ? - 143

Chapter VI. Proof Op The Leasehold Tenant Bight

Proof from Sales after the Lease, - 144

Proof from Valuations of Tenant-right, - - 145

Proof from Estate Valuations for Rent, - - 145

Proof from Sales during the Lease, - - - 146

Proof from Dealings with Sub-tenants, - - 146

Hearsay Evidence, - - 146

Evidence from the District, - 147

Unreasonableness of confining the Proof to the Estate, 148

This Proof not warranted by the Language of the Act, - 149

Mr. Gladstone on Customs in and out of Ulster, - - 149js

CHAPTER VTI.

PAIR RENT UNDER THE CUSTOM.

Fair Rent under the Leasing Powers Clauses, - - - 150

Fair Rent allows Good-will and Improvements, - 151

Fair Rent measured by the Custom of the District, - - 151

Limits to the Authority of the Land Court to inquire into Fair

CHAPTER Vnx

PURCHASE OR ACQUISITION OF THE CUSTOM.

Extinguishment of the Custom by Purchase, - - - 153

Popular wording of the Act, - 154

XVI CONTENTS.

PAGE

Strict Nomenclature involves precise Definition, " 155

The muter Custom mi generis, - -155

Logical Limits to the Argument from Analogy, 155 Surrender of the Tenancy not in fact an Extinguishment of the

Custom, •- 156

Meaning of Purchasing and Acquiring the Custom, - 157, 159

Meaning of "from the Tenant," - - - -161

APPENDICES.

A. Meaning of Estate Rules and Legal Usages, - - 165

B. Depreciation of the Currency, 1798-1820, . 166

C. Benefits of Tenant-right, - 168

D. Master Fitzgibbon's Account of Tenant-right, - . 169

E. Communication from Mr. R. Macartney on Leasing, Disturb-

ance, and Valuations, - - . 171

DECISIONS.

Decision of Court for Land Cases Reserved, - - - 175

Decisions of Judges, - . . 178

Decisions of Chairnien, - . 233

ADDENDA.

Decisions of Court for Land Cases Reserved, - 329

Decisions of Judges, . . 3gg

Decisions of Chairmen, . , 403

Amending Statutes, - - _ 419

Schedule of Costs and Pees, - . . - 424

Judges' Rules as to Registration of Improvements, - 429

Hearsay Evidence of Custom, - ... 40-]

Evidence of Custom from other Estates, - 430

Judges' Decisions, 1873-1876, - . iis

Chairmen's Decisions, 1873-1876, . gij