Page images
PDF
EPUB
[merged small][merged small][merged small][ocr errors]

upon plaintiff made up a balance of 1,4161. 14$. 9de against himself, and voluntarily executed a bond, and warrant for the amount. He denied that he made use of this occasion or availed himself in any manner of plaintiff's situation for the purpose of obtaining a second lease, but said that having been himself tenant to plaintiff for part of the lands of Skarrif, and another denomination called Ballyminoge having been held by persons who were unable to pay the reserved rent, and the lease of another part of the lands of Skarriff being to expire on the 25th March 1792, plaintiff solicited defendant to become tenant to the whole at a yearly rent of 79). 38. 9d. which was a fair value ; and that defendant having agreed thereto, plaintiff did by indented deed demise the said lands to defendant at said rent for his own and two other lives, which lease he believed was executed on the day it bore date, the 5th January 1792. But defendant having some time in 1790, discovered that said lease might be considered as a reversionary lease with regard to some part of the lands, he applied to plaintiff to have the same rectified, who thereupon on 5th February 1793, did, in the presence of the subscribing witnesses, change the date from 5th January 1792, as defendant believes, to 25th March 1792, and re-deliver the said lease. Defendant admitted issuing a custodiam on the foot of his judgment, but had not thereunder meddled with any rents of plaintiff's estate, save the rent payable by himself which he had retained: he denied ever having solicited the lease of the demesne lands, but said that it was proposed to him by plaintiff, and was of so little value that he assigned his interest to another person at the same rent he held from plaintiff, and that said lease had since expired. He denied having made any overcharge in account, and answered specially as to the items. charged by the bill ; and insisted inasmuch as plaintiff himself had drawn up and settled the said accounts, which accounts were finally closed and ratihed as before mentioned,

1803.

and the vouchers given up to plaintiff, and inasmuch as defendant had not nor never had any copy of said accounts, or either of them, that defendant is not bound to go into or unravel any of said accounts, and that plaintiff should be precluded from again entering into any investigation thereof.

DREW

V. Power.

The plaintiff having replied, and witnesses being examined on both sides,(a) the cause came on to be heard in June 1801, before his honour the master of the rolls, who on the 9th of July 1801, directed four issues, to try, 1st. Whether the lease of the 1st April 1791, was executed. on the day it bears date or not, and if not, on what day it was executed. 2. Whether the rentreserved by said leasc of 1st April 1791 was the full and fair yearly value of the lands and premises thereby demised at the time of making the same, supposing said lands and premises to have been set to a solvent tenant, and if not, what was the yearly value of said lands. 3. Whether the lease of the 25th March 1792 was the full and fair yearly value of the lands and premises thereby demised at the time of making such lease, supposing said lands to have been set to a solvent tenant, and if not, what was the fair yearly value. 4. Whether the leases of 1st April 1791 and 25th March 1792, or either and which of them were made or executed in consideration of: any and what loan or loans of money, and if so, when, or at what time or times respectively, and by whom and to whom, or for whose use, was such money lent or advanced. From this order the plaintiff appealed, and the cause now came on to be heard before the Lord CHANCELLOR.

For the plaintiff, Mr. Burston, Mr. Plunket, Mr. Pren. dergast and Mr. Devereux pressed for a general account on

(a) The substance of the parol evidence, as far as is material, is adverted to in the judgment of the court.

1803.

DREW

v POWER.

the foot of the dealings between the parties, and insisted there was such evidence of fraud and advantage taken, that the bond obtained by the defendant should only stand as a security for so much money as he should be able to prove was actually advanced for the use of the plaintiff. As to the leases, they contended that there was sufficient evidence for the court to set them aside without directing any issue: that it was clear they were obtained merely through the influence of the loan of money, and there is a clear and admitted under-value in the rent, as appears by the immediate underletting at a profit of 100l. per ann.

For the defendant, Mr. Attorney General, Mr. Saurin and Mr. O'Driscoll contended on the first part of the case, that the defendant was entitled to the benefit of the settle ment of accounts for the balance of which the bonds had been passed; as to the leases, they insisted that it was by no means a universal rule that no lease can stand which is ob. tained by a creditor from his debtor: it must be shewn to be at such an under-value as shews a command over him. There is no direct evidence here that the defendant was to have the lands at less than another; the only evidence is an inference, by connecting the lease with the loan of money, that the rent must have been less than the lands were worth at the time : and they urged that the defendant was surprise ed by a great deal of evidence on the plaintiff's part as it went to matters not precisely put in issue, and as to which therefore the defendant had not a fair opportunity of cross examining the witnesses.

Lord CHANCELLOR.

July 2.

My mind is influenced by what was the impression on that of the master of the rolls when he made his decree: I am

1803.

called on to alter that decree, which I ought not to do unless I think it insufficient to obtain the purposes of justice : now he has directed several issues, and has not at all entered into the case except so far as he has directed those issues.

DREW

V. Power.

The first issue I apprehend was directed by him with more than one view, because if the lease was not executed on the day it bears date it is liable to one consideration, and it is liable to another if it was so executed ; if it was executed on the day it bears date, then it was executed at a time when the defendant had himself set the lands at a great profit rent: if not executed on that day, but upon aprior day, then the answer of the defendant would be contradicted in a material point, and the case of the plaintiff supported. The effect of the second issue would be merely to try whether the rent was such as could be deemed a reasonable rent;- it is not at all calculated to ascertain whether it was a rent sec with a view to give an advantage to the defendant: it would be a proper issue if the question in the case were, whether a fraud of a different description had been practised on the plaintiff; as, if a landlord complained that by imposition he had been induced to let at a gross under-value; but it is not an issue that arrives at the justice of this case; and the same observation applies to the third issue. As to the fourth issue, the effect of it is to devolve to a jury the trial of a question which, with respect to this subject, does not belong to a jury to try ; because the question for the court here is, whether these leases are to be taken in a court of equity as an evasion of the statute of usury, or an unfair advantage taken by the defendant of the distresses of the plaintiff; and the issue would probably mislead the jury, for they would have brought before their consideration, whether the loans of money was part of the bargain made : that is not precisely what a court of equity means to 'confine itself to; the true consi

1803.

deration for it is, whether the relation of debtor and creditor was that which induced the lease.

DREW

POWER.

In all cases of this sort, we should look a great deal more at the consequences as they may affect other parties, than at the parties in the particular cause ; and it is very difficult to consider a case properly in a court of justice, if the par. ticular circumstances be its sole object : we must look to those general rules and principles which shall guide the con

duct of other persons, and enable the court to administer Rule, that justice. One rule material to observe in all cases of acwhere account has been set

count is, that where there has been a settlement of actled, and

either count, and either the account has been signed, or a secusigned or a security on the rity taken on the footing of the account, a court of equity foot of it taken; does not open that transaction, and throw it again between not open it, un- the parties as if no such transaction had happened, unless less the whole the evidence which is produced, (and that evidence founded transaction appear fraudu

on charges in the bill) shews the whole transaction to be so lent, upon evi. dence founded iniquitous that it ought not to be brought forward at all to on a bill charge affect the party sought to be bound. If the account iming such fraud, and specifying peached be a settled account, or if an instrument has been the errors.

executed on the foot of it, the court expects that the errors should be specified in the bill and proved as specified : otherwise it would be easy to overturn the fairest accounts and those settled in the most solemn manner, when there happens to be any complication in their nature. Now, in this case, the bill states two settlements of accounts, and a written engagement for the loan of money, and the bill does not state the accounts to have been signed by the parties ; and the accounts which are now produced were not left for the inspection of the defendant, nor was he called on to say whether these were the accounts which were settled on the specific days, or not. (His lordship here went into an exa

« PreviousContinue »