Barrett v Burke

Barrett     Appellant


Burke     Respondent

Feb. 26, March 5, 1817.


Lease in 1713 for three lives, renewable for ever on payment of a fine on the dropping of each life, at 50 l. rent, by A. to B. B. leases the lands to C. at 100 l. rent, with covenant to renew for ever to C. on the same terms; and B. also covenants to renew regularly with A. C. pays his fines and renews with B., but B. never renews with A. a representative of A., in 1793, accepts some money from C. towards the discharge of the fines due from B., and makes demands for payment of the whole of the fines by C., which C. neglects to comply with. A formal demand of the fines made by a representative of A. in 1799, against C., who does nothing for nine months after demand, and then makes an illusory tender which is not accepted. Held, by the House of Lords, that under these circumstances C. had no claim in equity to a renewal.

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Per Lord Redesdale. A formal demand is not necessary under the Tenantry Act. The true meaning of the Tenantry Act is to declare what was the Equity of Ireland, with respect to these leases, before the statute. When a demand is made, the neglect to pay, when it goes beyond what is a reasonable time for payment, ceases to be mere neglect and becomes wilful. What is a reasonable time for payment must depend on circumstances, and no precise time applicable to all cases can, with justice, be fixed. Though a formal demand is not necessary, yet, when such a demand is made, the prior demands are waived, and the time is to be computed from the period of the formal demand: but prior demands are to be taken into account in considering what is a reasonable time after the formal demand. When the first lessee receives the fines from his under-tenant, and neglects to pay them to the head landlord, that is fraud in the first lessee, who is therefore not entitled to a renewal, and the remedy of the under-tenant is against the first lessee, and not against the head landlord. The landlord, in making the demand, is not bound to state the precise sum due, nor to make a demand upon, or give notice to, every individual interested in the subject. The original design of these leases, was the better cultivation of inferior lands and the more easy recovery of the rent, &c.

Original lease, Dec. 23. 1713.

Nash becomes entitled.

Lease from Nash to Burke.

The original lease never renewed.

By indenture, dated 23d December 1713, the Honourable Edward Brabazon, being seized in fee of certain lands, those of Garrylish and others, in the county of Tipperary, demised the same to John Marshal, of Clonmell, for three lives (of the Brabazon family), at 50 l. rent, with a covenant for perpetual renewal, upon the request, and at the expense, of the lessee, within twelve months after the expiration of any of the lives then inserted or thereafter to be inserted, upon payment of a fine of 25 l. for each new life added. Robert Marshall, the son of John, having become entitled, he agreed to execute

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a lease of the lands to one Terence Magrath, and then assigned his remaining interest to William Nash, whose nephew and representative, James Nash, afterwards specifically performed the agreement with Magrath, by executing a lease of the lands to Milo Burke, (the Respondent’s ancestor) who had become entitled to the benefit of that agreement. The indenture, dated 9th Jan., 1761, after reciting the death of one of the cestui que vies in the original lease, and the nomination of a new life (that of Burke’s son), witnessed, that in pursuance of the agreement, and in consideration of a 25 l. fine then paid on the insertion of the new life, Nash demised the lands to Burke for three lives, with covenant for perpetual renewal, at a rent of 102 l. 10 s. Burke covenanted, within six months after the expiration of any of the lives, to name another life, and pay the fine; and Nash covenanted, in three months after a life so nominated and fine paid, to renew with the head landlord at Burke’s expense. The indenture contained a proviso that, in case Burke neglected to nominate a life within the six months, Nash should be at liberty to nominate to the head landlord any life he might think proper: and Burke covenanted to pay interest to Nash on any of the fines that might be advanced by Nash to the original lessor before payment by Burke to Nash. The last of the cestui que vies in the original lease died in 1772, and, in point of fact, the lease never was renewed with the head landlord.

In 1799 Barrett becomes entitled as head landlord.

Formal demand.

Demand in March 1801, and no step taken by the tenant to settle the account till Nov. 1801.


The Appellant became entitled to the lands as head landlord, in 1799, by devise from Edward

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Brabazon; and, having been unable to discover the representatives of Nash, he, by advice of counsel, calculated the renewal fines up to the 25th Feb., 1801, and executed a power of Attorney to one Dowling, authorizing him to demand and receive the fines. On the 27th Feb., 1801, Dowling, accompanied by the Appellant, went to the lands, and there a formal demand of the fines was made from the principal occupier, and also from the other occupying tenants; and a notice of the demand was then also served by Dowling on the several tenants, including Milo Burke, the Respondent’s father, who was then in possession; and a copy of the calculation of the renewal fines was also served on Burke. The Appellant caused a notice of the demand to be published in the Dublin and London Gazettes, on the 5th March, 1801, which was continued for two months from that time. On the 24th March, 1801, Milo Burke furnished the Appellant with an account of money paid by him from 1774 to 1799 to the Brabazons, from which it appeared that Burke had paid considerably more than his own rent; and he alleged that the excess was paid on account of renewal fines. Burke however took no step towards settling the account till the 27th Nov., 1801, on which day he made what was called a tender of the fines, taking credit for the sum alleged to have been paid by him to the Brabazons beyond his own rent. The tender consisted of eight notes of the Bank of Ireland, two notes of Messrs. Finlay and Co., and seven bills of exchange, accepted by several persons in trade in Dublin, some of which bills were then over due, and in the

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hands of the holder, dishonoured. When Burke made this tender he was accompanied by his law agent, Mr. Edward Kirby, who had been agent for Mr. Edward Brabazon, the devisor of the Appellant. The Appellant took a memorandum of the particulars of each note and bill, and of the dates of the bills, and then returned the notes and bills, and asked Burke whether he had any more to say, and Burke answered that he had not.

Dec. 1801. Bill by the tenant for a renewal.

Alleged agreement in 1793.

Prayer for renewal to Burke as trustee for Nash.


In M. T. 1801, the Appellant brought an ejectment against Burke; and on the 4th Dec., 1801, Burke filed his bill in the Court of Exchequer, stating, that in 1780, William Brabazon, then the head landlord, had agreed to accept Nash’s profit rent in discharge of the arrears of the head rent and renewal fines; and that from 1782 the head and profit rents had been regularly paid; and that, in 1793, Edward Brabazon, the son of William, had distinctly agreed to accept of this mode of payment, so that the forfeiture was waived; and praying that the Appellant, or the heir at law of Edward Brabazon, might be decreed to execute to Burke, as trustee for the heir or representative of Nash, a renewal of the original lease, and for an account and injunction. To this bill none of the Nashes were parties. The Appellant in his answer insisted that there had been such laches and neglect on the part of the Nashes, and those deriving under them, as amounted to gross fraud; and that the right of renewal was forfeited, particularly by the lapse of ten months from the time of demand and notice, without any attempt to pay the fines, except the illusory tender in November 1801.

July, 1802. Amended bill.

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Burke then, in July 1802, filed an amended bill, making the representatives of Nash parties, in which it was stated, that by an agreement in writing, executed in 1782, Nash consented to assign his profit rent to William Brabazon until the arrears of the head rent should be discharged;—a statement differing from that made in the original bill, inasmuch as it was not alleged in the amended bill that, in the agreement with William Brabazon, any thing was said respecting the renewal fines. The consent of Edward Brabazon in 1793 to accept the profit rent in discharge, both of arrears of head rent, and renewal fines, was stated as before; and the prayer was the same as in the original bill. Answers having been put in, and the cause revived by the Respondent on the death of his father, issue was joined, and witnesses examined.


The only evidence material to be noticed for the present purpose is that of the law agent for the Plaintiff, Mr. Edward Kirby, who had been the law agent of Edward Brabazon relative to the transaction of 1793. He stated, that in consequence of letters written by him, at the desire of Edward Brabazon, to Milo Burke, requiring Burke to settle an account of arrears of rent due from the Nashes, a meeting took place in May 1793, between Burke and Brabazon, at which he, Kirby, was present; and it then appeared that all arrears of rent had been paid up to November 1792, with an over-payment of 100 l.; that Edward Brabazon said “he would allow the over-payment out of the renewal fines due by the Nashes to him for the lands, whereupon deponent did then communicate to

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said Burke that said Edward would expect immediate payment of all renewal fines due to him from the Nash family, and that renewals should be at once taken out, or words to that effect; to which the said Milo replied, that his father had paid up all renewal fines due by said Bourke to the Nash family and obtained regular renewals of said premises, and that said Bourke had then a renewal executed by James Nash for three lives, all of whom he alleged were then living; and saith, said Bourke did then produce to said Edward and to deponent a deed or instrument engrossed on paper purporting to be a renewal of said lands executed by said Nash, wherein said Milo Bourke, William Bourke, and John Bourke, said Milo’s father and brother, as deponent believes, appeared to be the lives named therein; and believes the said William and John were then and still are living. Saith, on the production of said deed or renewal, said Edward expressed much displeasure that the Nash family should receive the renewal fines from said Bourke their under-tenant, and execute renewals without paying his, said Edward’s, family or himself their renewal fines, though the renewal fines payable by Bourke, on the fall of each life, to said Nashes, was same as was payable by the Nashes under their lease. Saith, said Bourke, under apparent distress of mind, informed said Edward, that he had a family of eight or ten children, and that he would be ruined if the said Edward would seek to enforce from him payment of the renewal fines, then appearing due to him; upon which, said

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Edward, with strong expressions of feeling and kind disposition towards said Bourke, declared he would not take advantage of him, and that for the present he would not proceed for payment of said fines; whereupon deponentor said Edwarddesired said Bourke shouldas soon as he could, endeavour to make up the amount of the renewal fines, for that he, Mr. Brabozon, would not pay any compliment to the Nash family. And that deponent did then ask said Edward, whether, as all arrears of rent were then paid up, deponent should continue to receive from said Bourke, the profit rent of 52 l. 10 s. a year, arising out of said lands, to said Nashes, which said Edward desired deponent to do, saying, he would allow such payments out of the renewal fines.” And then, after adverting to some matters of account, he proceeded thus:

“Saith, that prior to May 1793, deponent believes he got instructions from said Edward Brabazon to demand or enforce renewal fines from the Nash family; in consequence whereof, deponent did, as he verily believes, apply to Milo Bourke, deceased, and also to Mary Nash, the widow of James Nash, for payment thereof. Saith, that from 1st May, 1793, till within a month of said Edward’s death, as deponent best recollects, said Edward never did, to this deponent’s knowledge, direct deponent to take proceedings to evict the interest in the lands in the pleadings mentioned, in case said renewal fines were not paid; but saith, that in the latter end of November, or beginning of December 1799, said Edward in conversation told deponent that he

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wanted a new coach; in answer to which, deponent told him he could easily get one; to which said Edward replied, that he would not go in debt for a coach, but that he would insist on Bourke’s paying as much on account of the renewal fines as would purchase one, otherwise, that he would insist on payment of the entire, or evict the lease, or words to that effect. And saith, deponent did, immediately after such conversation, write to the said Milo Bourke, unless he did then, without delay, remit 200 guineas, as he best recollects and believes, on account of the fines due for said lands, to deponent, deponent would discontinue to receive the Nash’s profit rent; but saith, said Bourke did not remit one shilling more than his usual payments of the head rent and some part of Nash’s profit rent.”

And, in his cross examination, the witness made the following statement with respect to the renewal fines:

“Saith, that prior to the month of May 1793, deponent was directed by Edward Brabazon, deceased, either to apply for or enforce the payment of the renewal fines and arrears of rent, if any arrears were due, on the lands in the pleadings mentioned, from the Nash family and said Milo; saith; he recollects to have received such instructions subsequent to 1st November, 1799, but does not recollect to have received any such instructions in the interval between May, 1793, and November, 1799; does not recollect that any person was present when he received such instructions or directions; believes he answered on both such occasions that he would do as he was so directed; saith that it was

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in consequence of deponent’s application to Milo Bourke according to the first directions he received from Edward Brabazon on the subject, that a meeting took place on the 1st of May, 1793, between said Edward and Milo at Tara, where an account was stated of the payments made by said Milo on account of the rents of the lands in the pleadings mentioned; saith deponent hath no recollection, nor does he believe that said Edward, on any occasioncomplained to deponent, or in his presence, that no proceedings had been taken for the recovery of the said rents or fines, or made any complaint of that or a similar nature to deponent’s knowledge or belief.”

Amount of the evidence respecting the alleged agreement of 1793.


Decree, May 15, 1807.

The amount of this evidence, as understood in the House of Lords, was that Edward Brabazon had accepted some money, part of the profit rent, on account of the renewal fines, but that he had not agreed that the whole should be gradually liquidated by payment to him of the profit rent, and that he had on the contrary insisted upon payment of the fines in a different mode, but without effect. The Court below, however, seems to have been of opinion that if Edward Brabazon accepted from Bourke any part of the profit rent on account of the fines, he thereby bound himself to accept the whole in that mode of payment, and had waived the forfeiture; and that the cause hinged upon the point whether Edward Brabazon had or had not thus accepted money from Bourke; and the Court tendered an issue to the defendant (Appellant, Barrett) to try that question, which issue Barrett declined to accept; and the Court seems therefore to have

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decided as if the question had been tried, and the verdict had been against him. The decree was as follows:

“That the Appellant having declined to accept an issue to try and inquire whether Edward Brabazon, in the pleadings mentioned, did at any time, and when, receive any and what sums of money out of the lands comprised in the lease of 23d Dec., 1713, for or on account of the renewalor septennial fines due under said lease; that it appears to the Court, that William Brabazon, in the pleadings mentioned, and the said Edward Brabazon, were respectively in receipt of the rent of 102 l. 10 s. a year, in pleadings mentioned, from the 10th day of Dec., 1782, to the 30th Dec. 1799, first in discharge of the rent and arrears of rent due to them, and next in and towards satisfaction of the renewal and septennial fines, and the interest thereon; therefore let the officer inquire and report the amount of all sums so received by the said William and Edward Brabazon out of the said lands during the period aforesaid, and let him apply the same as received, first in discharge of rent and receiver’s fees, and arrears of rent due, and then in discharge of the renewal and septennial fines and interest thereon; and let him strike a balance on the foot of such fines, septennial fines, and interest, on 27th February, 1801; and in taking such accounts of fines, and septennial fines, and interest, (the parties admiting that Brabazon Ponsonby, Earl of Besborough, died on the 15th July, 1758, and that Chaworth Brabazon, Earl of Meath, died 14th May, 1763, and that Edward Brabazon, Earl of

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Meath, died 22d Nov., 1772; and it appearing that the said tenant has twelve months time to nominate a new life in the place and stead of any life named in said lease of the 23d Dec., 1713, that should happen to fall, and so from time to time upon all subsequent renewals), let the officer charge one fine of 25 l. with interest from the 15th July, 1759, and another fine of 25 l. with interest from the 14th May, 1764, and another fine of 25 l. with interest from the 22d Nov., 1773; and so, at the end of every eight years from the then periods last-mentioned, let him charge additional fines of 25 l. each with interest; and let the officer distinguish and report how much of the balance which will appear to be due for renewal and septennial fines, and interest thereon, upon the said 27th day of Feb., 1801, according to the directions aforesaid, is composed of renewal and septennial fines which became payable to the said Earl of Meath, the lessor during his life-time, with interest for the same, and how much thereof is composed of renewal and septennial fines which became due in the time of William Brabazon during his life-time, with interest for the same, and how much thereof is composed of fines which became payable to the said Edward Brabazon during his life-time, with interest for the same, and how much thereof is composed of fines due to the Defendant, Roger Barrett (the Appellant), in his own right, as the devisee of the said Edward, and reserve all equity between the parties, and all further directions until the return of the report.”

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Final decree. Renewal to the Nashes.


The officer having made his report, a final decree was pronounced on the 24th June, 1812, whereby the Appellant was ordered to execute a renewal of the lease to Mary Nash, widow, and Richard Harold, the surviving trustee named in the will of James Nash deceased, &c. From these decrees Barrett appealed.

Counsel: Sir Samuel Romilly and Mr. Roupell for the Appellant;
Mr. Hart and Mr. Wetherell for the Respondent.