M. T. 1847. which he was to have got the meal, and what he could get it for at Exch.of Pleas. the place where it was to be finally consumed. I think, therefore, that upon the authorities which establish that the ascertaining the amount of the loss is the giving material evidence, in this case the motion must be refused. O'NEILL V. RUSH. Nov. 22. In an ejectment upon the title to recover premises situate in the Lessee of the COMMISSIONERS OF THE TOWN OF ENNISKILLEN, v. THE EARL OF ENNISKILLEN.* ON a former day a conditional order was obtained on behalf of the lessors of the plaintiff, to enter a suggestion upon the record to change the venue in an action of ejectment upon the title, brought managh, upon by the Town Commissioners of Enniskillen v. The Earl of Ennislessors of the killen, from the county of Fermanagh to the county of the city of plaintiff, sup- Dublin. Part of the premises which were the subject of the eject county of Fer motion of the ported by an affidavit that the defendant's that of his connections ment consisted of the Market-house and Town-hall of Enniskillen. influence and It appeared by affidavit, that in the reign of James the First a certain estate was granted in fee by patent from the Crown to William Cole, Esq., the ancestor of the present defendant, upon overwhelming, terms, amongst other things, that the said William Cole, his heirs and family in Fermanagh was great and and that the influence of a and assigns, should set apart a convenient place for a Marketgreat many would be exer other persons house, and that the Corporation of Enniskillen had been, from the of weight earliest period of which there was any trace in their records, in possession of the Market-house and Town-hall over it, down to the 24th of October 1840, and that it had been, from time to time, cised in his favour if the case was tried in that county, the Court directed a sug rebuilt and repaired out of the Corporate funds, with the full know gestion to be * Absente LEFROY, B., who was sitting at Nisi Prius. Exch.of Pleas. Lessee THE COMMISSIONERS OF ENNISKILLEN บ. EARL OF ENNISKIL LEN. ledge of the defendant's ancestors; that, on the 24th of October M. T. 1847. 1840, a resolution was passed by the Corporation of Enniskillen, "That the thanks of the Corporation are due and be given to the "Earl of Enniskillen (the defendant) and his family for their un"wearied support, and the accommodation they have always afforded "it, and that the possession of the Market-house, used as a Town"hall by his permission, be restored:" which resolution was signed by Hamilton Irvine the provost, and major of the defendant's regiment of Militia; by William Irvine, who had been solicitor for the Corporation, and who had since 1836 obtained leases of a considerable portion of the corporate property, and which were impeached by the lessors of plaintiff; by the Hon. John Lowry Cole, defendant's brother; William Corry, Esq., adjutant of defendant's regiment; Paul Dane, Esq., brother of the present Sub-sheriff, and agent to the Earl of Belmore, a relative of the defendant, and by G. A. Nixon, Esq., surgeon of the County Infirmary, and by no other person; and that it appeared to have been the last act of the burgesses, they having on the previous day passed a resolution giving the defendant the corporation mace and seal, to be by him kept as an heir-loom. The affidavit proceeded to state that by the Municipal Corporation Act, 3 & 4 Vic. c. 108, the property of the Corporation of Enniskillen vested in the Poor-law Guardians, and that the defendant was Chairman of the Board; and that his influence was such that he could carry any measure that he took an interest in with the Board; that the lessors of the plaintiff were elected Town Commissioners under the Act 9 G. 4, c. 82, on the 18th of September 1846. The affidavit went on to state that the question to be tried was principally a jury question, whether or not the late Corporation held the market-house, town-hall and yard thereto belonging in feesimple down to the dissolution of that Corporation, on the 25th of October 1840? That all the Town Commissioners would (as deponent believed), most of whom usually serve as record jurors, be ineligible; that the defendant's influence and that of his family and connections in the county is very great and overwhelming, and M. T. 1847. that he had on all occasions, where his personal interest was conExch. of Pleas. cerned, been most active by himself and friends in bringing that influence to bear; that he represented the county of Fermanagh MISSIONERS in Parliament for many years up to his father's death; and that Lessee THE COM OF ENNIS KILLEN v. EARL OF ENNISKIL LEN. previously the county returned as one of its representatives a member or connection of defendant's family for many years, and that the borough of Enniskillen is represented by the Honorable Henry Cole, a brother of defendant, and has always been represented by a nominee or member of the family; that the defendant is colonel, and his brother the Honorable Henry Cole lieutenantcolonel of the Fermanagh regiment of Militia; that the defendant and his late father and late uncles had great and exclusive patronage to bestow, and that thereby a great influence in favour of defendant had been gained over many persons who were likely to serve as jurors; and that the influence of the members of the late Corporation was very great, and would (as deponent believed) be exercised in favour of defendant if this cause were tried in the county of Fermanagh; and that the High and Sub-sheriff were both personal friends of defendant, and would be anxious to serve his interests; and that the Sub-sheriff was a poor-law guardian, and was (as deponent believed) one of those who voted against the handing over to the Commissioners the papers of the late Corporation, and that he was put forward by the defendant as a poor-law guardian for the town to represent defendant's interests; and that he had been lately appointed law-agent to the trustees of Lord Belmore's estates, one of which trustees was the Honorable H. Cole, the brother of the defendant; and that the Sub-sheriff's brother was appointed land-agent to the Fermanagh estate of the said Earl of Belmore; and that several of the leases made by the late Corporaration since 1839 were, as deponent was advised and believed, fraudulent; and that same will be impeached as such by the lessors of the plaintiff; and that many of them were made to very influential persons in the county and borough; and that most of all those persons would be adverse to the lessors and favourable to the interests of the defendant; and that deponent believed, and was fully convinced, that the present ejectment could not receive a fair and impartial trial in the county of Fermanagh. The defendant in his affidavit stated that he was most anxious that the case should be tried by an impartial and unprejudiced jury, and that he believed that only nine of the twenty-one Town-commissioners were on the record panel of the county Fermanagh for the present year, and that the number of jurors on the list was one hundred and fifty at the least, the great majority of whom were resident at a great distance from the borough of Enniskillen, and were not in any way connected or at all under the control or influence either of the Commissioners or of the deponent; and that he did not believe that he had by means of his rank or station, or from the patronage bestowed by his late father and uncles, obtained or now possessed, either personally or through the members of his family, or through any of the members of the late Corporation of the said borough, or otherwise, such influence over many or any of the persons likely to serve as jurors for the said county as would induce them or any of them to violate their oaths, or act partially or contrary to their duties as such jurors, or find a verdict not strictly in accordance with the justice of the case; that he only became acquainted, to the best of his recollection, with the Sheriff of the county within the past year, and never had any previous intercourse with him, and that he does not believe that either the High or Sub-sheriff would in any manner depart from the strict line of their or his duty to advance his (deponent's) interest; that the Sub-sheriff was not put forward as a poor-law guardian by deponent to represent his interests, or for any other purpose; nor was deponent at all anxious that he should be appointed a poor-law guardian. The affidavit also denied that his influence over the Board of Guardians was such as had been alleged, or that he could (if he were so desirous) induce any of the members of the Board of Guardians to act contrary to what he might conscientiously believe to be his duty; that he verily believed that his brother, the Hon. J. L. Cole, had never acted as trustee of Lord Belmore's estate, and that he had altogether resigned the trusts thereof; that all his, deponent's, witnesses reside in the county of Fermanagh, and that it would add very considerably to the expense, and cause great inconvenience, to bring them to Dublin; and that he verily believed M. T. 1847. OF ENNIS- บ. EARL OF ENNISKIL LEN. M. T. 1847. that the issue would be fairly and impartially tried in Fermanagh, Each. of Pleas. and a verdict given according to the evidence and justice of the case, without the jurors being in the slightest degree influenced in Lessee THE COM MISSIONERS favour of deponent. OF ENNIS- EARL OF John Brooke and Sproule, in support of the motion. Samuel Johnston, contra, relied on the affidavit of the defendant as sufficiently displacing the allegations in the affidavit upon which the conditional order was obtained, and cited Jackson v. Lodge (a); O'Shaughnessy v. Lambert (b); Macdonough v. Darcy (c); Hall v. M'Kernan (d); Reynolds v. Power (e). In that case Doherty, C. J., says, "The mere imputation of jurors being likely to be influenced by the consideration of the defendant being a director of the Bank is not enough to take this case out of the ordinary rule." Brooke. In Jones v. Price (ƒ), which was an action of trespass on the plaintiff's close, the venue was changed, on the mere allegation that the defendant and others had riotously assembled and pulled down the fences of the close. RICHARDS, B. There are special circumstances in this case making it desirable that the venue should be changed. The Court, having offered to the defendant the option of having the venue changed to Tyrone, which was declined, directed (under the statute 3 & 4 Vic. c. 105, s. 47) a suggestion to be entered on the record that a trial could be more conveniently had in the county of Dublin. |