registered. The vote was ordered to be struck off the poll. vin's and cases. A tenant hold lease, executed at under a free the time of the regi On the votes of Patrick Gavin and Thomas Kenny, Patrick Gatwo others of the same class, in addition to the evidence Thomas in the above case, and the fact that Mr. Darcy's Kenny's brother was one of the witnesses to the lease of Gavin, evidence was given of an ejectment served by Mr. Darcy, upon a Mr. Rochfort, the immediate tenant of the lands occupied by the 13 voters, about a year previous to the execution of the leases; and it was stated, that Mr. Darcy, in April 1832, had the land surveyed, and divided into certain dimensions among each of the 13 tenants, who had before held under the middle-man ejected, Mr. Darcy stating, that he had made a new contract with them, and that he would divide the lands, and give each a part, so as to enable him to register. They had previously held in common. orders with respect to the leases were in these words, "let the leases be dated for 1831, the tenants have been in possession all through; the lands have been in my possession previous to the date of that lease." Mr. Darcy's The argument on Patrick Gavin's case having turned principally on the question of whether the witness Stanford had been corroborated by a Mr. Cruise, who had been called solely for that purpose, that on Kenny's case will alone be given. Mr. Thesiger: A primâ facie case of disqualification having been established by the evidence against the voter, it is incumbent on the petitioners to prove, that he was in possession under a freehold lease. It has been proved, that, in the month of April, there was an agreement between Mr. Darcy and the voter; if that agreement was in writing, we will not dispute that he was in possession. The Statute of Frauds was re-enacted ver he had been in the occupation of the land be fore the date of the lease, as tenant to the party with an granting it, agreement entered into for a lease more than six months before the registry. batim by the Irish Act, 7 Will. 3, c. 12, by which it is in the first section enacted, "that no estate, lease or interest, either of freehold, &c. of, in, to, or out of any messuages, &c. shall be granted, unless by deed or note in writing, signed by the parties granting the same, or their agents, thereunto especially authorized by writing, or by act and operation of law." A contract, such as has been proved, would not be enforced by a court of equity. These persons, therefore, were not in under a lease or agreement, capable of being enforced, until October. It had been unsuccessfully argued in Darmody's case, that the voter was in possession of the land up to the execution of the lease. [A Member of the Committee: There he held under Martin, not under Daly.] Mr. Follett: It is unimportant, whether the original contract was in writing or not, when once executed. Here the party, for more than a year before the registry, gets possession of the land. Mr. Darcy, in 1831, was in possession of the freehold, and might, therefore, have made what leases he chose. Mr. Martin, in Darmody's case, could not make a valid promise of a lease, because he had not an interest sufficient to enable him to do so.-[Mr. Thesiger: Martin could have granted leases for his own life.]-He could not have given. leases under which his tenants could have registered. Here the voter continues in possession of the land under a contract, and that contract has been executed; and it is therefore immaterial, whether it was originally executory or not; besides, it is incumbent on the other side to give evidence, that the agreement was by parol. Under the Reform Act, it is sufficient to show, that the voter has been in possession of the land for six months, and has a lease.- [Chairman: By the law in Ireland, he must have been six months in possession, under the instrument by virtue of which he claims.]-Not where he has held under a contract, which is carried into effect by the execution of a lease.-[A Member of the Committee: Could these voters be made freeholders, until the land was divided?] If they were originally in possession under the agreement, and continued to be so down to the time of granting the lease, they were good freeholders. The Committee decided, that both the votes should stand on the poll. given on the discus In Kenny's case, it was also decided, that the peti- Evidence tioners' counsel was not at liberty to refer to the evidence given in the two former cases, and to consider it as applicable to the vote under consideration. This course was, however, afterwards assented to, for the purpose of saving time. sion of other votes of the same class, cannot be read against the person whose vote is under consideration. Horan's case. Where there are two per. On Mr. Pollock's proposing to question the vote of Thomas Thomas Horan, it was objected by Mr. Harrison, that no sufficient notice had been given in the list of objections to distinguish the person, there being two persons of that name in the same barony. The Committee, after hearing Mr. Pollock, determined that the notice was not sufficient. sons of the same name, the list must clearly distinguish the person in 30th May. John Man a nion's case. tended to be objected to, or the objection cannot be gone into. Secondary evidence was, after argument, admitted of the lease under which John Mannion, a voter, held; notice to produce it having been proved to have been served upon him on the 13th of May, the day before the ballot for the Committee (ƒ). Notice to produce his lease, served on the voter on the day before the ballot for the Committee, held sufficient to let in secondary evidence. (f) The Cricklade case, Petrie, 528, is in accordance with the above decision. There the Committee refused to admit parol evidence of the contents of deeds, being the petitioner's title to a qualification, notice not having been given to the petitioner to produce them, before the day appointed for taking the petition into consideration. In the Fowey case, 1 Peck. 523, a notice given pendente lite, was held insufficient; see, however, ibid. 525. So notice to produce, served on a prisoner during the assizes, two days before the trial, is insufficient; Rex v. Ellicombe, 1 Moody & Robinson, 260. Notice is in all cases Michael Soughle. han's case. Service on a voter's son, the voter being absent, and no In the case of Michael Soughlehan, a notice to produce his lease had been served at his house upon his son, the voter being absent. No proof was adduced of the voter's having returned home. The Committee determined, that the notice not having been personally of his served, secondary evidence could not be gone into. return being offered, held Mr. Thesiger then said, he would not trouble the insufficient Committee Committee any further upon that vote, and that he was condary evi- instructed to proceed next upon another distinct class of voters, with respect to whom the objection was, that the lease, upon which they claimed to be registered, was executed in blank by the lessor, Mr. Martin, the other sitting member. to let in se dence. Paul case. The first case was that of Paul Steely. A witness was called, who stated himself to have been employed on the 4th or 5th of November 1832, by Mr. Lennard, the attorney of Mr. Martin, to fill in printed leases, previously executed by Mr. Martin, with the names of the tenants and the quantity of land, and to have thus filled in about 14 or 15 leases at Tuam, and some at Clifden, and among them one for the voter. There were no witnesses names at the time of the execution by Mr. Martin, but two persons witnessed the signature of the voter. The leases were usually dated six months back. One of the witnesses stated, that he had put his name as attesting the execution of some of the leases, though he had not seen Mr. Martin sign, because he was perfectly conversant with his handwriting. Notice to produce the voter's lease had been served on Mr. Martin, on the 7th and 9th of May, and on the voter on the 13th of May. essential; Bedfordshire case, 2 Lud. 568. Where the document is even in court, in the hands of the opposite party, it has been doubted whether it can be called for, without previous notice to produce having been given; Cook v. Hearn, 1 Moody & Robinson, 201, n. referring to Bevan v. Water, Moody & Malkin, 235. See 1 Phillipps on Evidence, 425; 1 Starkie, 345; and Roscoe, 4, 5. The principal cases before Committees, on the subject of such notices, will be found in Rogers, p. 262, et seq.; and see the Gloucestershire case, pp. 44, 107, 123, 124, 184. Mr. Thesiger proposed to call Mr. Martin; to which Mr. Harrison objected, on the ground that Mr. Martin had been in the room during the sitting of the Committee. of Parlia ment, who the Com had been in mittee-room after he had formed that he would a witness, may be ex been in. The agent for the sitting member proved, that he A member had told Mr. Martin, on the first day of the Committee's sitting, that he ought not to remain in the room; and that on another occasion, on the examination of a witness named Flaherty, having told Mr. Martin he must go out, which he objected to do, he said he must then serve him with a Speaker's summons, to which Mr. Martin replied, "there was no occasion, for that he would go out," which he then did, though he had frequently been in the room since. Mr. Martin had been requested to attend by a letter from the Chairman. Mr. Harrison, in support of his objection: It is an established rule, that a witness who has been in the committee-room cannot be called; Aylesbury case (g), where the witness rejected was a member of the House; Portsmouth case (h); Dublin case (i), where the witness was only five minutes in the room, while counsel were speaking. In the Oxford case (k), Wyatt was admitted to give evidence, because he knew he ought not to have been in the room. Here an intimation had been given to Mr. Martin, on the second day of the Committee's sitting, that his evidence would be required; but, though sitting here daily, no subsequent intention to call him has been expressly announced, and no proper step has been taken to make him a witness. In the Aylesbury case (1), service of the summons, in the course of the trial, on one who had been in the room previously, was held sufficient to exclude his testimony. (g) 2 Peck. 265. (h) Minutes, 26th May 1820. (i) Minutes, 1831. See also the Clare County case, Minutes, 3d March 1831. be called as amined. |