E. Kelly (with him J. E. Walshe, Q.C.) for plaintiff, opened the demurrer.-The recital is of one party only the vendor-and cannot bind plaintiff. The authorities are collected in The Duchess of Kingston's case (2 S. L. C. 706); Stronghill v. Buck (14 Q. B. 781); Edwards v. Brown (3 Y & J., 423); Hayne ▼. Maltby (3 Term R., 438); Young v. Raincock (7 C.B., 310). Buchanan (with him Dowse, Q.C.,) contra, in support of the plea.-The recital is the recital of both parties and binds plaintiff.-Baker v. Dewey (1 B & C., 704); Bowman v. Taylor (2 A & E., 278); Bringloe v. Goodson (5 Bing, N.C., 738); Rowntree ▼. Jacob (2 Taunt., 141); Hill v. Manchester Water Works (2 B. & A., 544); Beckett v. Bradley (7 M. & G., 994); Re Forsyth (11 Jur. N.S., 213). Dowse, Q.C., on same side. The cases cited on the other side are distinguish able from this. which he alone is bound. And also because the said | Assizes for the Queen's County. The summons and recitals, or either or any of them, not containing plaint contained one count which stated that plaintiff statements of plaintiff, or of any person or persons was possessed of certain lands, premises, and a messuthrough whom he derives or with whom he is in pri- age therein, together with the right of turbary upon vity; plaintiff is not in any wise bound or estopped by the bog of Garrymore, and was entitled to a right of the said recitals, or either or any of them, or by the way from the said lands, premises, and messuage over matters contained in them or in any of them. a certain close to the said bog and back again from the bog over the close to the said lands, premises, and messuage for himself and his servants on foot, and with horses, cattle, and carts, at all times of the year. And the count then stated the disturbance. Defendant filed 4 defences. 1. That plaintiff had not the right of turbary as alleged. 2. That plaintiff was not entitled to the right of way as alleged. 3. ▲ traverse of the obstruction. 4. That plaintiff trespassed on defendant's close outside the way which defendant prevented, which are the grievances. Plaintiff at the trial put in the following deeds. A lease dated May 4th, 1789, whereby George Sandes demised to Andrew Delaney (plaintiff's grandfather on the mother's side), part of Kilcavan in the Queen's County then in his possession, containing 54 acres, be the same more or less, giving and granting sufficient turbary in the most convenient part of the said bog of Garrymore for Andrew Delany, his executors, administrators, and assigns, and their under tenants, with liberty to and from the high road to draw same. To hold from May 1st, 1789, for 61 years. A lease of May 31st, 1794, whereby George Sandes demised to Lawrence Reynolds (plaintiff's father, son-in-law of Andrew Delaney) part of the lands of Garrymore and Kilcavan, called "The Old Street," and a large field east of the Old-street for the lives of three persons (all since deceased); and the lease provided that if a house were built on the demised premises there is sufficient turbary to be allowed on Garrymore bog. The premises demised by this lease were different from those in the lease of May 4th, 1789. A lease of January 30th, 1860, whereby William Stephen Sandes demised to Andrew Reynolds, the plaintiff, the lands in both the former leases of May 4th, 1789, and May 31st, 1794, together with other lands (all which lands were described in a map on the lease), together with a right of turbary and bog mould for the use of the said Andrew Reynolds, his executors, administrators or assigus only, and to be consumed and made use of on the said demised premises, and not elsewhere, the same to be procured at and taken from such part of Garrymore bog, and in such quantity as the said. lessor, his heirs or assigns, or his or their agent for the time being shall from time to time point out and approve of, with liberty for the said Andrew Reynolds, his executors, administrators, and assigns, to draw the said turbary only from the high road through a field in Kilcavan, now occupied by William Pigott. J. E. Walshe, Q.C., was not called on to reply. PIGOT, C.B.-The rule in cases such as this is stated by Patteson, J., in Stronghill v. Buck. Defendant's argument carries its own refutation with it; he has expressly excepted some incumbrances and covenanted against others. This is the first instance I have known, in all my experience, of an attempt to shake the covenants in a purchase deed by estoppel. Such covenants are expressly made to guard against the possible failure of the recitals. The case is too plain to make it necessary for us to review the anthorities. Demurrer allowed. [BEFORE THE LORD CHIEF BARON, Fitzgerald, B., AND HUGHES, B.] REYNOLDS v. KINSELLA.-June 11th. New trial motion-Way of necessity. A brought an action against B. for disturbance of a Plaintiff examined.- Andrew Delany was my mother's father, he and my mother are dead; my grandfather was the lessee of Kilcavan; my father (Lawrence) married Andrew Delaney's daughter, and built a house when he got possession; my father and myself are in possession of Kilcavan 50 years; through all that time turf was cut by us on the bog of Garry more: we drew it home by the way now in dispute, THIS was an action for disturbance of a right of way.we had another road out of the bog; it is marked It was tried before the Lord Chief Justice at the last yellow on the map from B. to F., it went to the low | used before the road was made narrow. It is narrower than it was for 27 years. The bog road should be wide enough for two carts; Kinsella's bog road is nine yards wide. part of the same bank, and was cut away by defen- Mr. Reynolds used it for drawing his turf. I know dant; I have no way of drawing from the low part of the place where he used to carry his turf; I saw Kinthe bank: in drawing turf from B. to F. I always had sella's men, one of them digging them convenient te a wide space that I made myself with gravel and the road. I saw the place where the road was grascutch grass; I used to have a great many carts; Ivelled. Reynolds cannot draw as well now as he made a road wide enough for five or six carts. I loaded my cars there with the turf. At letter B. I made a bridge; the cars would pass over that bridge on their way to my house; from that they would go over Pigott's field to my house. All the time I can remember, the horses went that way. Since the yellow road was destroyed, I have no other way to go; the best part of the road was gravelled within a few perches of the bog. All that period I never was dispossessed of or interrupted in it. Plaintiff also gave evidence as to the disturbance. Cross-examined.-Under the lease of May 4, 1789, I cut till the lease expired. The lease of 1794 relates to totally different lands. The lease of 1860 comprises the lands in the lease of 1789, and the lands in the lease of 1794, and other lands in addition. The lives in the lease of 1794 are all dead. The last died 13 or 14 years ago; they died before 1855. Before the lease of 1860 I claimed myself the bottoms, where the road in question now is. I claimed the soil of it myself. I was served with a notice to quit (notice produced); can't recollect the service of any other notice. Turpin's letter was written shortly after I caught young Kinsella. I told Turpin my road was cut away. Mr. Sandes' free bog adjoins the bank where I cat; it is all Mr. Sandes' bog; it extends up to the bridge. Re-examined. My father and I cut away down to our bank, and as we cut we kept possession, and used the cut away bog till defendant got the lands. The notice to quit only mentioned the lands of Garrymore. I gave up the bottoms, reserving to myself the privilege of the roads and bottoms. I had no other way for bringing my turf. To a juror From the yellow mark I gave up possession of the cutaway bog when served with the notice to quit. I said to the driver, "I'll keep possession of the road and turf bank." I gave up the cutaway bog and grove, reserving the road and liberty to get to my bank. I had no other way of getting to my bank; they took in the cutaway bog in the lease of 1855. The landlord never questioned my right. George Parkinson examined.—I live at Garrymore. As long as I have known the road the Reynolds used it. I went with my father to demand possession of cutaway bog; he demanded possession of the cutaway bog, and the grove, and the road and high banks from Mr. Reynolds. The road is the road in dispute; Reynolds said he'd give up the grove and cutaway bottoms, but not the road nor the banks. Mr. Pigott wrote to take possession; it is now narrower, he can't use it compared to the way he did use it. Possession was given to Kinsella of all but the road and the bank. On cross-examination, witness stated that if Mr. Sandes made a road over his bog plaintiff could go by it and the bog without passing the road in question, and that Mr. Sandes' bog extends so that such a road could be made. Edward Keelan. I know the road now in dispute; Edward Delany.-I have known the road in diapute; I know part of it 40 years, as the bog was cut in the road advanced. I knew Reynolds and his father to put down furze and scutch grass. Part of it is dangerous for two carts. This closed plaintiff's case. For defendant there was given in evidence a lease dated May 30, 1855, from William Stephen Sandes to defendant of the land over which the right of way was claimed, to hold from November I then last past for 61 years. J. Meighan examined. I remember the giving possession of the bog to defendant; the boundaries were laid out with marks outside the road in dispute; sod and turf were given to Kinsella of all within the mark. The rest of the evidence on the part of defendant related to the alleged disturbance. At the close of the evidence for defendant his counsel called upon his Lordship to direct a verdict for defendant upon the second issue-on the existence of the alleged right of way-upon the following grounds That no sufficient evidence was given of the right claimed. That the user prior to 1860 being in exercise of the rights granted by the leases of 1789 and 1794, or one of them, is not available for the purpose of relying upon a prescriptive right, and that any rights granted by those old leases expired when those leases expired, or at all events in 1860, when any tenancy created by overholding was determined by surrender by the acceptance of the lease of Jan. 30, 1860. That the right of turbary granted by the lease of 1860 is essentially different from any rights which had existed under the previously expired leases, and that the terms of the right granted in said lease being a right to cut and take from such place, and in such quantity as the lessor should point out and approve of, does not sustain or prove the right alleged. That such a state of circumstances as would have had the effect of reserving to Mr. Sandes a right of way by necessity by the grant of the lease of 1855 had not been proved, and even if it were proved, such a right of way did not pass to plaintiff by the deed of 1860, and if it did pass would not prove the right alleged. That the only right of way plaintiff can claim is that expressly granted by the lease of 1860 through Pigott's holding, and that Mr. Sandes had not any power to either expressly or impliedly grant in 1860 a right of way over the lands previously granted to defendant by the lease of 3rd May, 1855. The Lord Chief Justice directed a verdict for plaintiff upon said issue, but reserved liberty to defendant to move to have a verdict upon said issue entered for him if the Court should be of opinion that his Lordship should have so directed. The Court to be at liberty to draw inferences of fact. Palles, Q.C., for défendant, having obtained a rule nisi accordingly, Battersby, Q.C. (with him Martin) for plaintiff, now showed cause against the conditional order obtained by defendant that the verdict had for plaintiff be set aside, and instead thereof that a verdict be entered for defendant pursuant to the leave reserved by the learned judge, or that a new trial be had on the grounds of misdirection of the said learned judge, and that said verdict was against evidence. The sole question is, did the right of way exist or not. Tho cases on this subject are-Doe d. Egremont v. Courtenay (11 Q. B. 702); Doe d. Biddulph v. Poole (id. 716); Howton v. Frearson (8 Term. R. 50); Buckby v. Coles (5 Taunt. 311); Morris v. Edgington (3 Taunt. 24); Barlow v. Rhodes (3 Tyrw. 285); Pinnington v. Galland (9 Exch. 1); Pearson v. Spencer (1 B. & S. 571). J. E. Walshe, Q.C. (with him Palles, Q.C., and Byrne) contra, for defendant in support of the order. -The cases cited are not material here. As to a way of necessity-Holmes v. Goring (9 Moo. 166; s.c. 2 Bing. 76; Plant v. James (5 B. & A. 791). Palles, Q.C. on same side.-Suffield v. Brown (10 Jur. N. S. 111); Polden v. Bastard (4 B. & S. 258); Hargrove v. Lord Congleton (12 Ir. C. L. R. 362). Martin in reply.-Jordan v. Atwood (Owen, 121); Oldjeild's case (Noy. 123); Packer v. Wellstead (2 Sid. 111); Clark v. Cogg (Cro. James, 170.) Cur. adv. vult. June 12.-The judgment of himself and Hughes, B., was now delivered by PIGOT, C B.-We think there was prima facie evidence of the existence of a way of necessity. Plaintiff says he had no other way but the one in dispute. We are all of us aware of the great difficulty there is in the access to, and still more so in the exit from, a bog; and the expense of making a road through the bog would be very great. I consider the circumstances to have been as follows, from what we know to have occurred with regard to several estates. Mr. Sandes had a considerable tract of land, and houses on it, and therefore he required a right of turbary for his tenants in those houses. In letting the land where the bog intervened, it was necessary to give a right of way through the bog, which was more extensive formerly, as appears from the evidence of plaintiff and others. In 1855 the land was let to defendant, and from that time to the period of the interruption of the right of way, that road was constantly used for going to the bog, and this was some evidence to go to the jury that defendant was aware of the fact that that road was a way to which plaintiff was entitled, and that it was a way of necessity, and plaintiff swears that it was a way of necessity. The jury therefore might reasonably find that it was a way of necessity. But if we allowed the verdict to stand for plaintiff, defendant would be concluded without having had his case sufficiently investigated, so that, on the whole, we think it more satisfactory to direct a new trial. It must be, however, on the terms that if plaintiff obtains a verdict in the new trial, he shall have the costs of both trials, and in no case shall defendant have the costs of the former trial. FITZGERALD, B.-I am unable to concur in this Judgment. It appears to me that there was no evi dence of a way of necessity. It is settled that a party who relies on a way of necessity must aver in his plaint there is no other way, and must then prove that there is no other way.-Holmes v. Goring (9 Moo. 166; s.c. 2 Bing. 76). I therefore think that the verdict ought to be entered for defendant. Rule absolute for a new trial, but without costs. Court of Probate. Reported by W. R. Miller, Esq., LL.D., Barrister.at.Law. EASTWOOD v. EASTWOOD.-June 27. Interest-Pleading. When the interest of an alleged next of kin is disputed on the ground of the illegitimacy of his ances tor, the objecting party may require the party whose kindred is objected to to file a pleading setting out his kindred, and the Court will direct him to do so. Fetherstone, for the plaintiff, the executor and residuary legatee in a will, moved that before he should be called on to propound or prove the validity of the will of James Eastwood, deceased, the deceased in the cause, the defendant should file a declaration propounding and setting forth her interest, and proceed to prove the A caveat and appearance to the plaintiff's warning had been entered by the defendant. An affidavit in support of the motion was filed by the plaintiff's solicitor alleging the illegitimacy of the defendant's father, whose father was the uncle of the alleged testator.-Crispin v. Doglioni (2 S. & Tr. 17); Hingeston v. Tucker (ib. 596). same. Dr. Miller for the defendant. The practice in Ireland has been in cases of this kind for the plaintiff to file a petition in the nature of a peremptory exception, and for the defendant to answer it, setting out fully her interest. An issue then would be knit, and the question could be tried either on affidavits or viva voce before a jury.-Davidson ▾ Woods (7 Ir. Jur. N.S. 202). KEATINGE, J.—That case was a very peculiar one. A decree had been made establishing a will of a Dr. Colvin, of Armagh; but it was not a decree in the ordinary way, but was grounded on the consent of the parties. The party who alleged herself injured by that decree came in and made this case: "I was one of the next of kin of the deceased, and interested in setting his will aside; but the case was compromised behind my back, and I am not bound by the decree." The general rule [is-that next of kin who are privy to a auit touching a will are, though not parties, bound by it. But the case made there was a double one. First she said I am a next of kin; and second, I was no party to the compromise, and am not bou by the decree. In that case the inquiry was a preli minary one; and a petition had been properly filed by In the executor to restrain the threatened litigation. that proceeding I decided that the party was not bound by the decree. Then another inquiry arose as to the legitimacy of the party so seeking to re-agitate the question. I allowed that inquiry to be carried on in the course of the same proceeding by petition. That inquiry went to a jury, and they found against the party, finding that she was illegitimate. But here the inquiry is as to legitimacy and nothing else; and it is very desirable to have a uniformity of practice in the Courts in England and in Ireland. The case cited of Crispin v. Doglioni is an authority in support of the motion, and the notice given here is evidently taken from it; and it establishes that where a preliminary objection is made to the kindred of a party, the Court has a clear right to direct that the matter shall be inquired into, and that for such purpose the party objected to shall file some kind of pleading, whether called a declaration, petition, or pleading showing the locus standi of the party. The 70th rule (contentious) also supports this view, directing that "any question arising in a cause, and not being one of interest, domicile, or other matter usually brought before the Court by declaration and plea, may be brought before the Court by petition." Unquestionably, in cases merely of interest-as in a contention whether parties are first or second cousins and similar cases-the case is brought forward by a declaration alleging intestacy, and setting out the kindred of the party to the deceased, and negativing the existence of any kindred in a nearer degree, to which declaration the other party files a plea objecting the interest of the party so declaring; but in such cases that is the sole question in controversy. In this case the inquiry as to kindred is only preliminary; if the kindred is made out the inquiry remains as to the validity of the will. On the whole, I think that this preliminary inquiry should be raised by a pleading, by whatever name it may be termed, whether declaration, plea, petition, or statement; and accordingly, I now direct that such pleading or statement be filed in the Registry by the defendant within four days, and that it do set forth the interest of the defendant; and though I am not called on to make an order to that effect, yet I recommend the party to set forth fully the interest she relies on-in fact to give a detailed pedigree; and let the plaintiff within four days after having received notice of the filing of the defendant's pleading, file her pleading or statement in answer to the plaintiff's pleading, the costs of the motion to be costs in the cause. Order accordingly. WATSON V. WATSON.-July 2. Executor-Probate. It is no ground for the Court passing over the sur. viving executor that he is old, and in embarrassed circumstances, and without interest, but the grant was ordered to be impounded for fourteen days. T. P. Lynch, for the defendant, moved that letters of administration of the goods of Andrew Watson, deceased, with his will and codicil annexed, should be granted to the defendant, notwithstanding that the plaintiff, the surviving executor of said testator is alive. Andrew Watson, by his will dated 13th Jan. 1832, appointed three executors, one of whom is the plaintiff, and gave him a legacy of £300, and to his eldest son considerable sums of money, and by his codicil he made him his residuary legatee. On the 2nd Oct. 1832, probate was granted to Henry Watson, one of the said executors saving the rights of the others. He died on the 9th March, 1860, but did not name any executor. Letters of administration with Henry Watson's will were granted on the 3rd April, 1860, to the defendant, one of his sons, and a legatee in his will. The second executor named in Andrew Watson's will died on the 22nd February, 1840, without having proved that will, and not having intermeddled. The unadministered assets of said Andrew Watson now consisted of £590 2s. Id., part of a fund in the Bank of Ireland, and which the Landed Estates Court in a matter there pending, had set apart by an order of Judge Dobbs, dated the 14th May, 1866, to the separate credit of the personal representative of the said Andrew Watson. It was sworn by the defendant that the plaintiff had never acted as executor to said Andrew Watson, and was over 80 years of age, and nearly blind, and in very embarrassed circumstances, and had no beneficial interest on the personal estate of said Andrew Watson, but that he had a claim against said estate which was unfounded, and that if he got possession of said sum of money, that he would apply it to pay off said alleged claim, and that the defendant and other persons named were the only persons beneficially interested in the unadministered assets of said deceased, and they all desired the grant to be given to the defendant. Counsel contended that this was a case coming under the 78th section of the Probate Act. Dr. Ball, Q.C. for the plaintiff.-The plaintiff is named by the testator executor. He is able and willing to act, and therefore the Court cannot pass over him. KEATINGE, J.-This case is not within the section referred to. I must therefore set aside the caveat filed by the defendant, and the plaintiff desiring to ac cept the grant, I order that the grant, when sealed, be impounded in the registry for fourteen days, so as to enable the defendant to take such proceedings as he may be advised. IN THE GOODS OF ROBERT MECREDY, SUPPOSED DECEASED. Person missing since 4th February, 1866-1dminis tration on presumption of death-Security. A. B. a captain in the Bombay Staff Corps, who was in England on leave of absence, left his lodging in London on the 4th February, 1866, in a cab, with his luggage, consisting of several articles, stating to his landlady that he was going by the Irish mail train to Ireland (where his relations re sided). He had never since been heard of, nor could anything be heard of his luggage, though advertisements and inquiries had been made in every quarter. Held, under the circumstances, that a grant of administration with his will annexed might be granted to his brother on giving security, and on the renunciation of the executor named in the will, as the Court could not dispense with jus-rate habits, and had besides the said two sisters sevetifying security. to Robert Mecredy or his luggage. In his lodgings some additional luggage was found, and in it was found a will bearing date the 25th Feb. 1857, appointing Noel Kenuau, of Dublin, his executor, and dividing between his two sisters all his property, with benefit of survivorship between them. Robert Mecredy was a bachelor, and of very regular and tempe England (Miller's Pr. Pr. 470). KEATINGE, J.-I can entertain little doubt that the unfortunate gentleman has met with some mischance, and that his death may be presumed. The only difficulty is as to the form of the order. The party applying is executor, and would if the grant were taken by him, be exempt from giving security, but I could not make a grant in this case without requiring justifying security. If the executor will renounce, I will give administration with the will annexed to Henry Sandys Mecredy as one of the next of kin on his entering into justifying security. I doubt whether even if an executor consented to give secarity, the bond would be assignable under the Act. ral other sisters and brothers, who would be his next of kin. His sword and regimentals, and some other Dr. Townsend, Q.C., for Noel Kennan, the sole exe- articles of small value, were in Dublin, and it apcutor named in the will of the said Robert Mecredy, peared that he was always on most friendly terms applied for a grant of probate to his will, dated the with all his family, and previous to and up to his 25th February, 1857, on the presumption of his death. disappearance had been in constant communication It appeared from the affidavit of Henry Sandys Me- with them, and also with his agents, as to his money credy, an elder brother of Robert Mecredy, that the investments. He was highly educated, as a classical latter had left Ireland for India in 1851, having ob- and also an oriental scholar, and was qualified to act tained an appointment in the East India Company's as interpreter in India, and was very studious in his Service, and was at the time of his disappearance a habits. He was affected with chronic dysentery, captain in the Bombay Staff Corps in India. That which sometimes preyed on his spirits, but when he Robert Mecredy, in the year 1855, returned from left his lodgings he appeared in his usual manner. India on medical certificate, and after two years he The object in taking the grant here is for the conve returned to India, whence he finally returned to Eng-nience of the parties, as the grant can be resealed in land on sick leave in the spring of 1862. In March, 1862, he went to reside with his said brother in Summer-hill, in Dublin, and remained there until the 4th May, 1862, whence he went to England, and was seen by his said brother in August of that year in Harrogate. On the 6th December, 1862, Robert Mecredy again visited his said brother in Dublin, and remained with him until the 13th April, 1863, whence he went to Delgany, and thence to London, and then on a tour through the Continent of Europe, and returned to London in December, 1863. He intended to have again paid a visit to his brother, but on account of the latter at the time changing his residence, he was not in a position to be able to offer him suitable accommodation for some short time, and consequently he remained in London. On the 11th Feb. 1864, and 27th Feb. 1864, his said brother wrote to Robert Mecredy, asking him over on a visit, his house being then quite ready to receive him, but no answer was ever received to either of said letters, and were found unopened at Robert Mecredy's agent's office in London (the Messrs. Barber & Co.) in August, 1864, to which agents he had written on the 4th of February, 1864, desiring them to keep all letters for him until he sent his address; but no address whatever was ever sent to such agents, and he had told them that he was going into Wales. He had drawn from his agents previous to his departure only £6, and had in their hands a cash balance of £700, besides various Indian securities, and no further sum had been drawn by or for him. He had left his lodgings in Bury-street, St. James', on the 4th of Feb., 1866, in a cab, with three articles of luggage, stating that he was going to Ireland by the mail train to visit his brother, but no further trace of him could be discovered. The several offices and agents in England, Wales, Ireland, and Scotland, and the Dublin Steam Packet Company, and also the London Commissioners of Police, and the Detective Office, the Secretary of Štate for India, and various other persons were applied to for information, besides advertisements inserted in numerous papers, but none could be had either as [The executor consented to renounce, and the order was made.] IN THE GOODS OF CATHERINE GALLIGAN, WIDOW. Grant of administration-Presumption of death- |