Edmund Francis Dayrell against Hoare, Cardwell, and Friday
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 1840 |
| Date | 12 June 1840 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 847
IN THE COURT OF QUEEN'S BENCH.
S. C. 4 P. & D. 114; 9 L. J. Q. B. 299. Applied, In re Newell & Nevill's Contract, [1900] 1 Ch. 93. Distinguished, Brown v. Peto, [1900] 1 Q. B. 354; [1900] 2 Q. B. 659. Approved, In re Gladstone, [1900] 2 Ch. 105. Referred to, In re Rutland's Settled Estates, [1900] 2 Ch. 209.
edmund francis dayrell against hoare, cardwell, and friday. Friday, June 12th, 1840. Estates, hereditaments, and premises were devised to R. for life, with power to the tenant for life to make any lease of the said several estates, hereditaments, and premises, or any part or parts thereof, for twenty one years, reserving the most improved yearly rent with a condition for re-entry on nonpayment, so that there should be no clause giving the lessee power to commit waste, and so as the rent should be incident to, and go along with, the reversion. Held, that this power did not authorise a lease of part of the land, with liberty to sport over the rest. Where defendant in trespass justifies in a right which he claims under the estate of tenant for life, simply as such, he must aver the continuance of the life. [S. C. 4 P. & D. 114; 9 L. J. Q. B. 299. Applied, In re Newell & Nevill's Contract, [1900] 1 Ch. 93. Distinguished, Brown v. Peto, [1900] 1 Q. B. 354; [1900] 2 Q. B. 659. Approved, In re Gladstone, [1900] 2 Ch. 105. Referred to, In re Eidland's Settled Estates, [1900] 2 Ch. 209.] Trespass, for that defendants broke and entered plaintiffs closes, &c., and, with feet in walking1 and with dogs, trod down, &c., the grass and herbage of [357] plaintiff, 848 DAYRELL V. HO ARE 12 AD. ft E. 358. and, with the said dogs and with guns, hunted, beat about, and searched in the said several closes of plaintiff, for hares, pheasants, partridges and other game (mentioning also other trespasses not pleaded to in the following plea) ; and other wrongs, &c. Third plea (as to the trespasses above set forth). That, before the times when, &c., to wit 17th January, 1794, Richard Dayrell was seised in his demesne as of fee of the closes in which, &c., and of and in the messuages, lands, and tenements hereinafter mentioned to have been demised to defendant Hoare, with the appurtenances, respectively ; and, being so thereof seized, afterwards, and long before any of the said times when, &c., to wit on, &c., Eichard Dayrell duly made his last will and testament, and thereby gave, devised, and bequeathed (amongst and together with certain other messuages, lands, &c.), the closes in the declaration mentioned, and in which, &c., and also the said messuage, lands, and tenements, hereinafter mentioned to have been demised to defendant Hoare, with the appurtenances respectively, to certain persons in fee, to and for the uses and purposes in the will mentioned. Certain limitations were then set out; remainder to Richard Dayrell, nephew of the devisor, for life; remainder over. And the devisor, Richard Dayrell, did also, in and by his said will, declare, order, and direct, that it should be lawful to and for every person and persons, to whom any estate for life was thereby given or limited of and in the said several estates, hereditaments, and premises so demised, when and as he and they should respectively be in the actual possession thereof, or of any part or parts thereof, from time to time, and at all times, during their respective [358] natural lives, when and so often as he or they should think fit, by any deed or deeds indented, to be executed in the presence of two or more credible witnesses, to demise, lease, or grant, and to make any lease or leases, demise or demises, in present possession, but not in reversion, of the said several estates, hereditaments, and premises, so given or limited to them for their respective lives, or any part or parts thereof, unto any person or persons, for any term or number of years not exceeding twenty one years, to take effect in possession and not in reversion ; so as upon every such lease or demise there should be reserved, or made payable during the continuance thereof, the best and most improved yearly rent or rents that could be reasonably had or gotten or obtained for the same, and without any fine, premium, &e., or any thing in the nature, or in lieu, of any fine, &c.; and so as in every such lease there should be contained a clause of re-entry for nonpayment of the rent, &c., if unpaid by the space of forty days ; and so as no clause be contained in any or either of the said leases giving power to any lessee to commit waste, or exempting him, her, or them, from punishment for committing the same, &c. ; and so as all such rent and rents respectively should be incident to and go along with the reversion and remainder of the hereditaments and premises expectant on such lease or leases respectively. The plea then averred the death of Richard Dayrell the devisor, and the expiration of the estates limited to precede the life estate of Richard Dayrell, the nephew, on 23d April, 1803 ; whereupon Richard Dayrell, the nephew, under the will, became and was seized of his demesne as of freehold, for the term of his natural life, of and in the said messuages, lands, &c. : and, being so seized [359] thereof, and in the actual possession of such estate for life of and in the...
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