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Reports of Cases
upon Appeals and Writs of Error in the High Court of Parliament from the Year 1697 to the year 1713 with Tables, Notes and References being a supplementary volume to Brown’s cases in Parliament By Richard Colles Esq Barrister at Law. Dublin
http://books.google.co.uk/books?id=z8YuAAAAIAAJ&pg=PA459#v=onepage&q&f=falsePages 459 to 467. 1713. Appellants William Despard Esq Thomas Croasdaile Esq and others Executors of the last Will of Thomas Croasdaile Esq deceased Responders Arthur Ormsby Esq Dorothy his Wife William Usher Esq and Letice his Wife The appellants made this case That Sir Henry Waddington Knt being seised in fee of the lands of Woodford in the county of Galway in Ireland and of certain iron works and woods of little value thereon and intitled to a term of years in the lands and ironworks of Scariffe in the county Clare and having one son Digby and two daughters respondents Dorothy and Letice (the son a young child and the youngest daughter about 17) by his last will in writing devised all his lands and real estate whatsoever subject to certain payments to his said son in tail remainder to his daughters and the heirs of their bodies issuing respectively and directed that his estate should be managed by his executors or the greater number of them until his said daughters should be disposed of in marriage and appointed Dame Abigail his wife (during widowhood only) Simon, then Bishop of Limerick afterwards translated to Elphin, Duke Gifford Gilbert Ormsby Simon Purdon Esqrs Zachary Ormsby, Clerk and Thomas Croasdaile executors; and in case Croasdaile would undertake the management of testator’s real and personal estate and make it his only business then he recommended to his other executors to allow Croasdaile 10s per ton if 200 tons of bar-iron were made yearly in the works and 15s for each ton of bar-iron made yearly over and above 200 tons; and soon after died, and his son Digby also died in a few months after and Dame Abigail and Croasdaile proved the will, but the other executors also acted and nothing was done without their concurrence. And, in 1692, the ironworks of Scariffe with the appurtenances, were let by Dame Abigail to John Emerton Esq at the yearly rent of £500 and respondent Dorothy soon after married Robert Tempest Esq who took upon him the management of the real estate and the iron works of Woodford being in a ruinous condition and the woods almost destroyed by soldiers and common trespassers during the late troubles, the executors and co-heirs unanimously resolved to let the same and Emerton treated with Tempest and by a proposal in writing offered to pay £150 per ann for the iron works and lands of Woodford, with the privileges thereunto belonging and particularly the liberty of raising cinders and making use of the woods which belonged to Sir Henry Waddington, within three miles of the works; which proposal the executors approved of and Gilbert Ormsby one of the executors (respondent Arthur’s father) by their direction impowered Tempest and Croasdaile to agree with Emerton accordingly; and they, 7th February 1692, by a deed written on the back of that proposal agreed to let the works of Woodford with those privileges to Emerton for seven years from the 1st of May following, at the yearly rent of £150 and covenanted, that all the parties interested should upon demand make him a lease in due form and under this agreement Emerton entered about May, 1693, and managed the works wholly with his own stock and for his sole benefit until June 1694, and then finding that he could not well carry on the undertaking without the assistance of Croasdaile who was skilled in such works and had great quantities of cord wood thereabouts pressed Croasdaile to become sharer with him in the works of Woodford for a third part; and Thomas Croasdaile who had long before been discharged from the management of Sir Henry Waddington's real estate, was at length prevailed on to become Emerton's partner in the works of Woodford; and Emerton accordingly by articles 14th June 1694, granted and assigned to Croasdaile a third part of the iron works of Woodford; and Croasdaile, in consideration thereof, granted to Emerton two thirds of his woods at the same price he had paid for them; and about that time respondents, William Usher and Letice intermarried: And in September 1696 Emerton having affairs of consequence to manage in England proposed to surrender his lease of Scariffe, but respondents refused to accept it unless he paid down £600 which he accordingly did; and thereupon surrendered his interest in both the iron works, with a saving of the third part, which Croasdaile had in Woodford works; and Croasdaile at the same time offered to surrender his third part also, provided respondents would allow him a reasonable time to work up his mine; but Dr Zachary Ormsby one of Sir Henry Waddington's executors, persuaded him to take the intire works of Woodford on the same terms Emerton had held them; and thereupon respondents Usher and wife, by indented articles dated 17th October, 1696, agreed in behalf of themselves and of Tempest and respondent Dorothy, then his wife to demise unto Croasdaile the town and lands of Woodford, twenty five acres in Killagown, seventeen acres in Cloucoe, twenty one acres in Derrycrag, and two acres in Droomeenecotty, with the iron works, woods, and other appurtenances, for twenty one years from the 1st of May next ensuing, under the yearly rent of £150 with a proviso that if Tempest and Dorothy his wife, (who were then in England) should not give their consents to that agreement and signify the same in writing under one or both their hands, before the 10th day of December following, the articles should be void: And that respondent Dorothy by a letter from London to Thomas Croasdaile, dated 4th May, 1697, consented to the articles, and said she wondered he had not received former letters, which she and her husband had sent, to signify their consents; and added that Colonel Tempest was in the country; but as soon as he came to town Croasdaile shoud have both their consents in form; and thereupon Croasdaile entered and enjoyed the iron works of Woodford with the other premises therewith demised and duly paid the reserved rent to Colonel Tempest during his life and took his acquittances in full; and Colonel Tempest dying in 1699, respondent Dorothy afterwards married the respondent Arthur Ormsby and during her viduity she, and all the respondents, for many years after, received this rent and gave receipts in full, and so far from pretending that the lease was unfairly obtained, or the iron works under-let, that respondents Ormsby and wife exhibited a bill against Croasdaile, in his life time, to compel him to accept of a lease in due form, and to execute a counterpart: And the Earl of Clanrickard being seised in fee of a great part of the lands of Dromeenecotty, in 1697, sold the woods thereon standing to Henry Bargery Gent who cut part to his own use and afterwards sold the remaining part of those woods to Croasdaile who also dealt for other woods, and took many beneficial farms, and by his great industry acquired a considerable fortune and died about October, 1709, having first made his will, and appellants executors: And that Sir Henry Waddington, by a lease from the Earl of Clanrickard, held thirty six acres of unprofitable land in the mountains of Slewbaghty, through which the water passed to the iron works, which was the only use or profit that could be made of these thirty six acres; and the former term being expired, Croasdaile took a new lease thereof from Colonel Thomas Burke who had married the Countess of Clanrichard: And that respondents, 7th February, 1709, exhibited their bill in the Exchequer of Ireland against appellants, as executors of Croasdaile, for an account of the personal estate of Sir Henry Waddington; and also an account of the third part of the profits of the iron works of Woodford from 1692 until 1696, and of the entire profits thereof from 1696 on pretence that the lease made to Emerton in 1692, was obtained by misrepresentation of the value and that there was some previous agreement to admit Croasdaile into a partnership; and an account of the profits of all the woods bought by Croasdaile, as being taken in trust for respondents: And that to this bill appellants, in June 1710, answered as to part and said they were absolute strangers to the matters suggested in the bill; but that amongst Croasdaile’s papers they found a draught of an answer, which they believed he intended to put into the former bill exhibited by respondents Arthur and wife, and set it forth verbatim: And as to that part of the bill which required an account of the woods bought by Croasdaile, pleaded that he was a purchaser thereof for valuable consideration, without any fraud or trust: And to this answer and plea respondents replied and issue being joined witnesses were examined and the cause heard 22nd February, 1710, and appellants complained that they were deprived of the benefit of several material depositions on pretence that the interrogatories were leading and the Court of Exchequer decreed, That the agreement made with Emerton in February, 1692, for the iron works of Woodford, as to a third part thereof should be deemed a trust for respondents; and that appellants should account for the full profits of that third part from the commencement of Emerton's interest to the 1st day of May 1697 and that the agreement made by Croasdaile with respondent Usher should be set aside; and that appellants should account with respondents for the full clear profit of the works and premises since the commencement of that agreement and for the value of the woods cut down by Croasdaile, on the lands so demised to him, since the commencement of that demise to the time of his death; and that the lease taken by Croasdaile, in his own name, of the said thirty six acres in Slewbaghty, should be deemed a trust for respondents and that appellants should account for the profits thereof since the death of Sir Henry Waddington; and directed several issues to be tried for ascertaining the profits respectively during these several times: And on a re-hearing, 9th May, 1711, on appellants petition, ordered, That appellants should account with respondents for all the timber and bark cut stripped or made use of by Croasdaile on any of the lands held under Emerton’s contract except such timber as was used in necessary repairs on the premises; and also for the profits of the thirty six acres in Slewbaghty, from Sir Henry Waddington’s death; and reserved the judgment as to the other points until the value and profits be ascertained by a trial at law; for which purpose they directed the several issues to be tried by a jury of the county of Galway, at the bar of the court of Exchequer; and a trial was accordingly had and the jury found that Croasdaile had made £63 7s 2d clear profit yearly, from the 1st May 1693, to 1st May, 1697, of the third part of the ironworks and lands, and of the cord wood cut thereon; and found the yearly value of all the works lands and wood cut thereon to be £233 yearly, from the 1st May 1697 to the 1st May, 1711, inclusive; and that the clear yearly profit thereof, above the reserved rent, was in those years £83 per ann. and found the value of the wood, timber, and bark (over and above what was made use of in necessary repairs) from 1st May 1693, to Croasdaile death, to be £1850 and the clear profit of Slewbaghty to be £2 10s a year; which verdict was confirmed by an order made the 12th of November 1711: And appellants shewed that on the hearing and re-hearing they pressed that the issues to be tried might be, Whether any agreement was made between Emerton and Croasdaile, at or before the time of making the demise in 1692? And what the real value of the said lands, woods, and iron-works then were, to be let for seven years to a responsible tenant; but the court would not direct either of those issues to be tried; but without any evidence of a previous trust between Emerton and Croasdaile and, notwithstanding the repeated subsequent agreements of respondents, on the 8th December, 1711, decreed, that appellants should account for the profits and value, according to the verdict, without any allowance for the management of the iron works: Which decree, orders, and issues, appellants insisted were unjust; because the demise to Emerton was with the unanimous concurrence of the executors and coheirs of Sir Henry Waddington, and the rent thereon reserved, was as much as the works with the appurtenances could then be let for to a responsible tenant; so that no fraud could be imputed to Croasdaile in that particular: And again, because there was no evidence of any agreement made between Emerton and Croasdaile, at or before the demise, to let Croasdaile into a partnership; on the contrary it appeared that Croasdaile gave a consideration about a year and a half after, to be admitted sharer for a third part: And finally, because the agreement in 1696, was made at the earnest entreaty of Dr Zachary Ormsby and respondent Usher with full notice of all the precedent transactions, and of the value of the premises, and confirmed by repeated acts of respondents, and all the parties concerned, during the space of thirteen years. The respondents, in affirmance of the decree, in addition to the facts stated by appellants shewed that Sir Henry Waddington finding himself in a declining state of health, and intending that the works should be carried on after his death for the benefit of his children, who were all infants, pitched upon Croasdaile, a relation whom he had instructed and bred up in the business and who had become very able and skilful in the management of the works, and all other his concerns; and by his will devised all his real and personal estate, in failure of issue in his own children, to Croasdaile and his heirs male; and therein particularly recommended to Croasdaile the management and overseeing his iron works and other concerns, and left it to the rest of the executors to allow him what yearly salary they should think fit for his care and trouble therein; and gave him a legacy of £20 for his last year's service, and directed he should have the allowances stated by appellants; and then added “If my kinsman Thomas Croasdaile should be so unkind and unconcerned for my family as to refuse or neglect to manage the estate and iron works, for the consideration afore-mentioned, or such other reasonable allowance and and compensation as my executors, or the greater number of them, shall agree to, or shall not give a just account of his trust, he cannot expect to deserve the kindness intended him in bringing him in, and entitling him to the reversion of my whole estate, real and personal, if all my children die without issue, and disappointing my heir at law:” And that Croasdaile, after Sir Henry's death, managed all the estate and in 1692, instead of carrying on the works of Scariffe he made a lease thereof to Emerton for thirteen years at £500 a year, and got Lady Wadington to join with him therein, which was the only act he did as executrix: As to the works at Woodford, he insinuated to Lady Waddington and respondents, the daughters, that those works would be a loss to them if they should carry them on, and proposed to take a lease thereof, with other lands, at £80 a year, although he told them, he believed it would break him if he should take it at that rent, but they rejected this offer; and finding himself disappointed resolved to compass his ends by an underhand treaty with Emerton for his taking a lease at £150 a year, but Croasdaile to go a sharer a third part; and Croasdaile affirmed to the respondents, the daughters who were then under age, that it was a greater rent than anyone else could or would give for same; and they trusting entirely to Croasdaile, consented, and accordingly the articles were entered into for a lease to Emerton of the iron works and lands at Woodford for seven years with a clause of renewal for seven years more: And that respondent Dorothy, whilst under age, was married to Colonel Tempest, whom Croasdaile got to sign the articles, though concluded previous to his marriage, and he no party; and though Croasdaile was entitled from the beginning of Emerson's lease to one third part, yet the agreement between Emerton and him was postponed to be actually executed till the 14th of June, 1694, merely to colour the transaction: And that Croasdaile resolving to ingross the whole to himself, in Emerton’s absence in England, made him uneasy at his works of Scarriffe by distraining all his carriage horses for rent a few days after it became due; so that Emerton was resolved to get rid of Scarriffe and about October, 1696, offered £600 to Croasdaile to accept a surrender thereof, which Croasdaile would not accept unless Emerton would surrender up Woodford works also, with a saving in such surrender for Croasdaile’s third part therein, which Emerton agreed to, rather than endure such hardships; and a surrender of both, with such a saving, was accordingly made: And that Croasdaile’s being thus interested in a third part, rendered it impracticable to let the other two-thirds; wherefore Croasdaile, after Emerton’s agreement to surrender, and before the surrender made, applied himself to Usher in Dublin who was then married to Letice (Tempest and Dorothy being then, and for some years before out of the kingdom) that he might have a lease for 21 years of Woodford works and the lands held by Emerton, at the old rent of £150 a year, and which Usher, being a stranger to the value, and to Crcasdaile's fraud, consented to and thus the articles between Usher and Croasdaile were entered into: And that the woods cut down by Croasdaile on the lands of Woodford, and other lands thereabouts, would, if yet standing be worth £5000 and for these woods Croasdaile never accounted: And that respondents in March, 1709, filed a bill for an account against Croasdaile, but he died about three months after, before he answered, and then respondents filed their bill against appellants, his executors, as stated by appellants; who put in an answer, which they said Croasdaile in his life-time had prepared to the bill exhibited against him by respondents Ormsby and wife, and confessed assets: And upon a trial of the issues directed by the decree at the Exchequer bar, and after a full hearing the jury ascertained the several values of the woods and iron works, amounting in the whole to £3507 7s which was £600 less than respondent ought to have had; and though appellants had voluntarily near a year since paid and secured all the money decreed, with the cost of suit to respondents, they now appealed from the decree: And respondents stated that appellants complaints against the decree were, because the Court refused to let the bill filed by respondents Ormsby and his wife against Croasdaile, and also against Usher and wife, to compel him to pay his rent reserved on his articles, and to perfect a counterpart of the same, be read on the bearing; and secondly, that the issues contended for by appellants were not directed: And to these objections respondents answered, that that bill was never prosecuted, nor any answer put in thereto; and it was the constant course of equity not to admit such a bill to be read as evidence: That it was in proof in the cause that Croasdaile's agent as well as Emerton's managed the works from the beginning, and that the profits were divided between them according to their respective shares and each paid his own servants; and that Emerton sent a message to Croasdaile previous to the lease that if Croasdaile would procure the lease, he, Croasdaile should go sharer with him one third. All which necessarily implied an agreement before the lease, though the agreement was not reduced to writing for above a year half after Emerton’s lease, the better to conceal colour such fraudulent conduct in Croasdaile, and that and the lease afterwards procured from Usher, was a manifest breach of trust in Croasdaile, and therefore he ought to answer what he made of the lands, woods, and works, and not what they might be let for: And respondents contended that, after appellants had submitted to the issues directed by the decree, and made full defence on the trial, they ought not to be admitted to complain of the decree; and the rather, as appellants had long since paid the money, or secured it, and respondents had given discharges for it, appellants were concluded to complain of the verdict: Wherefore respondents insisted the lords should affirm the decrees, verdict and subsequent proceedings and dismiss the appeal with cost Die Luna 6th Julii 1713. After hearing council upon this appeal it was adjudged by the lords that the same should be dismissed and the decrees, orders and proceedings complained of affirmed; and that appellants pay respondents £60 for their costs Lords Journ vol xix p 600 FINIS |
| Peter Moss. peter@mossclan.co.uk |