John Galwey, Plaintiff in Error; Godfrey Thomas Baker, Defendant in Error
| Jurisdiction | England & Wales |
| Judgment Date | 28 July 1840 |
| Date | 28 July 1840 |
| Court | House of Lords |
English Reports Citation: 7 E.R. 1114
House of Lords
Mews' Dig. viii. 1240. S.C. West, 467. Discussed in Pentland v. Somerville, 1851, 2 Ir. Ch. R. 295; and see Mountcashell v. O'Neill, 1856, 5 H.L.C. 937; Furlong L. and T. 2nd ed. pp. 682-688; Land Act 1860, s. 31.
JOHN GALWEY,-Plaintiff in Error; GODFREY THOMAS BAKER,-Defendant in Error [March 13, 15, 1838; July 28, 1840]. [Mews' Dig. viii. 1240. S.C. West, 467. Discussed in Pentland v. Komerville, 1851, 2 Ir. Ch. R. 295 ; and see Mountcashell v. O'Neill, 1856, 5 H.L.C. 937; Furlong L. and T. 2nd ed. pp. 682-688; Land Act 1860, s. 31.] A clause in an indenture of lease reserving, out of the demise, to the lessor " all wood and underwood, timber and timber trees, standing, growing, or being thereon, or at any time thereafter to stand or grow thereon, with full and free liberty of ingress and egress to take and carry away the same," applies only to trees, standing when the lease was granted, and 'not to those afterwards planted by the tenant.--Its operation is so restricted by the 23 and 24 Geo. 3, c. 39. Quaere-Whether a judgment given by the Court of Queen's Bench in Ireland, 011 a bill of exceptions tendered to- the charge of a Judge of that Court in an action brought and tried in that Court, is not in itself irregular and erroneous? This was a writ of error on a judgment of the Court of Exchequer Chamber in Ireland. John and Edward Galwey, being seised in fee of and in the lands of Lota, and the dwelling house thereon, by indentures of lease and release, dated the 28th and 29th of October 1789, demised unto Sir Richard Kellett, knight, the said dwelling house and lands of Lota, to hold the same unto the said Sir Richard Kellett and his heirs for the term of three lives therein [380] named, with covenants for perpetual renewal, reserving a certain rent therein mentioned. The indenture of release contained a clause in the words following; viz. " Saving and always reserving out of the said demise unto the said John Galwey and Edward Galwey, and to the person or persons who shall from time to time be entitled to the reversion in said lands, all mines, minerals, and royalties happening or being thereon, and also all wood and underwood, timber and timber trees., standing, growing, or being thereon, or at any time thereafter to stand or grow thereon, with full and free liberty of ingress and egress, to take and carry away the same." John Galwey, the plaintiff, had since become seised of the reversion in fee of the s,aid premises, subject to the demise for the term of lives, which term is still subsisting. Some time after the execution of the indentures one William. Massey Baker became seised of the estate and interest of Sir Richard Kellett in a part of the demised premises, by assignment, and planted divers timber trees thereon, and duly registered 1114 GALWEY f. BAKER [1838-40] VII CLARK & FINNELLY. the same pursuant to the provisions of the Irish statute' of 23 and 24 Geo. 3, chap. 39 (see post, 382), and shortly after died, leaving Godfrey Thomas Baker, the defendant, his heir, who thereupon became seised of the premises so assigned as aforesaid for lives renewable for ever; the reversion in fee belonging to the plaintiff. The defendant cut down and sold certain of the trees (of the value of 1) which had been planted and registered by William Massey Baker, whereupon the plaintiff, in Hilary term 1835, brought an action of trover in the Court of King's Bench in Ireland to recover the value of the said trees, and the defendant [381] having pleaded the general issue, the action came on to be tried on the 21st day of March 1835, at the assizes for the county of the city of Cork, before Richard Wilson Greene, esquire, one of his Majesty's Serjeants at Law; and the several matters and things hereinbefore stated having been proved or admitted, the counsel for the plaintiff contended that the clause in the indenture of the 29th day of October 1789, reserved to the re-versioner the property in all trees at any time growing upon the demised premises; but the counsel for the defendant contended, that notwithstanding that clause all timber trees planted after the execution of the indenture were, under the provisions of the 5 and 6 Geo. 3, c. 17,* and 23 and 24 Geo. 3, [382] c. 39,t the property of the * Intitled, " An Act for encouraging the planting of Timber Trees," by which it is recited that, " Whereas the distress this kingdom must soon be in for want of timber is most obvious: And whereas it is equal to inheritors whether tenants do not plant or have a property in what they plant;" and then enacted, "That from and alter the first day of September one thousand seven hundred and sixty-six, tenants for lives renewable for ever, paying the rents and performing the other covenants in their leases, shall not be impeachable of waste in timber trees or woods which they shall hereafter plant, any covenant in leases or settlements heretofore made, law or usage, to the contrary notwithstanding. " 2. Be it enacted, that if from the time aforesaid any tenant for life or lives, by settlement, dower, courtesy, jointure, lease, or any office, civil, military, or ecclesiastical, impeachable of waste, or any tenant for years exceeding twelve years unexpired, shall plant sally, ozier, or willows, the sole property of such shall, during the continuance of the term, vest in the tenant, and he may cut and fell the same, under the restrictions hereinafter mentioned; and if such tenant shall plant any timber trees of oak, ash, elm, firs, pine, walnut, chestnut, horse chestnut, quicken or wild ash, alder, poplar, or other timber trees, such tenant during the term shall be entitled to a, house-bete, plo'Ugh-bote, carfc-bote, and car-bote of such trees by him planted : and at the expiration of the term, or where such trees shall have attained maturity, which shall first happen, shall be entitled to the said trees, or the value of them, according to the directions hereinafter mentioned, any covenant heretofore made, la,w or usage to the contrary notwithstanding. " Provided always, that each person so planting shall within six months next after such planting lodge with the clerk of the peace of the county where such plantation is made, a certificate under the hand of the tenant, containing the number and kind of the trees planted, their height and years growth at the time of planting, and a clear description of the places a,nd manner wherein they shall be planted; which certificate shall be kept on a separate file among the records of the county, and entered in an alphabetical book by the denomination of the land in the said county; and such certificate, or a copy thereof attested by the acting clerk of the peace, shall be evidence of notice of such plantation in all courts; to which book and certificate all persons may resort during each quarter sessions to be held for such county, without any fee." t Intitled, " An Act to amend the Laws for the encouragement of planting Timber Trees;" which, after reciting that, " Whereas the la.ws for the encouragement of tenants to plant timber trees have proved ineffectual," enacted, " That from and after the passing of this Act any tenant for life or lives, by settlement, dower, courtesy, jointure, lease, or office, civil, military, or ecclesiastical, impeachable of waste, or any tenant for years exceeding fourteen years unexpired, who shall plant or cause to be planted any timber trees of oak, ash, elm, beech, fir, alder, or any other trees, shall be entitled to cut, fell, and dispose of the same or any part of the same, at any time during the term : Provided always, that any tenant so planting 1115 VII CLARK & FINNELLY. GALWEY V. BAKER [1838-40] tenant who planted them, and did not belong to the reversioner, and sub-[383]-mitted to the learned Judge that the defendant, upon the facts proved and admitted, was entitled to a verdict. The learned Judge, however, was of a different opinion, and directed the jury, if they believed the evidence, to find a verdict for the plaintiff for the value of the timber so cut down; whereupon the jury found a verdict for the plaintiff, damages 1. The counsel for the defendant tendered a bill of exceptions, to which the Judge put his seal, and the case was afterwards brought on for argument before the Court of King's Bench in Michaelmas term 6 Will. 4, when that Court gave judgment for the defendant. The plaintiff sued out a writ of error to the Court of Exchequer Chamber in Ireland, by which the judgment of the Court of King's Bench was unanimously affirmed, and the present writ of error was then brought. The Attorney-general (Sir J. Campbell), for the Plaintiff in Error: -There has been one great blunder committed in this case. The action was brought in the Court of King's Bench, and the bill of exceptions was argued before that Court. In fact, the- bill of exceptions was treated as if it was a special verdict. This was clearly erroneous: if the proceeding had been regular, the verdict given before the Judge at Nisi Prius would have gone before the Court of Error; and then, if that Court thought that the verdict could not be sustained, it would have awarded a venire de [384] novo. But here the course has been quite different, for the Court of Error has set aside the verdict, and ordered a judgment to be entered for the defendant. This course is itself erroneous. The Statute of Westminster (13 Ed. 1, stat. 1, c. 31), which first gave a party the right to a bill of exceptions, was introduced into Ireland by Poynings' law, and the law on balls of exceptions therefore must be the same in both countries. Sir F. Pollock, who appeared for the Defendant in Error, said that he did not know...
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