1841.

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and that part of the demesne of Lota annexed thereto, containing 40 acres or thereabouts, situate in the pa- CALLAGHAN rish of Glanmire and the north liberties of the city of Cork, for my own life and the lives of Richard Callaghan and George Callaghan, Esqrs., and of the survivor of such three lives; same to be free of all rent and assessments during my life, and to be subject to the annual rent of 350l. per annum during the lives of the said Richard Callaghan and George Callaghan, and of the survivor of them, in case of either of them surviving me. And I bind my heirs and assigns to pay such rent to you and your heirs and assigns during their lives, from the time of my decease, so long as either of them shall live. Leases to be executed at the request of either party. Dated this 14th day of November 1837, at Cork. Daniel Callaghan." "To Patrick William Callaghan, Esq."

"I

On the back of the paper containing the proposal, was written an acceptance by P. W. Callaghan, in the words and figures following:-" I accept of the above proposal, and agree to let the said house and demesne on the above terms. Dated this 15th day of November 1837. P. W. Callaghan.”

And subjoined thereto, in the handwriting of the Appellant, was this memorandum, signed by the Appellant and P. W. Callaghan :-" Rent to become due and payable half-yearly, on every 1st day of May and 1st day of November, henceforward.

"Daniel Callaghan. "15th November 1837. "P. W. Callaghan."

A copy of the proposal, acceptance, and memorandum, was written by the Appellant, and handed to P. W. Callaghan, signed by the Appellant; the originals, as he alleged, being retained in his own possession.

0.

CALLAGHAN.

1841. The threatened petition against the return of the CALLAGHAN Appellant to Parliament was never presented, and the agreement was not acted upon as a qualification; no lease was ever granted or applied for, and no apparent change of possession of the premises took place, but P. W. Callaghan continued in the ostensible possession and ownership until his death; his mother and sister, and two of his brothers, resided there, as they did formerly while the Appellant was the owner; and the Appellant also resided there when in Ireland, and then acted as if he was still the owner.

Patrick William Callaghan died in January 1838, intestate as to this property, unmarried, and without lawful issue, leaving the Respondent, his eldest brother and heir-at-law; and the Respondent thereupon claimed to be entitled to the houses, offices, and the 80 acres of land, comprised in the conveyance of the 18th of April 1834, subject to the underlease of that part called Fort William to the representatives of Colonel Baker and in Hilary Term 1838, he brought an action of ejectment against the Appellant in the Court of Exchequer in Ireland, for the purpose of obtaining possession. The Appellant took defence to the action for the whole of the premises sought to be recovered, but afterwards gave consent for judgment against him with stay of execution till the 6th of November 1838. Before the time expired, the Appellant caused notice to be given to the Respondent of the existence of the agreement, and proposed and required him to execute, in pursuance thereof, a lease of the said house and premises to the Appellant.

The Respondent having declined to comply with the requisition, the Appellant, in October 1838, exhibited his bill in the Court of Chancery in Ireland against the Respondent, for the purpose of compelling

him specifically to execute the agreement contained in the said proposal and acceptance, and of obtaining an injunction to restrain the Respondent from issuing execution in the action of ejectment. The injunction was granted upon the Appellant's affidavit verifying the statements in his bill.

The Respondent put in his answer to the bill, and also filed a cross-bill, not only for the purpose of compelling from the Appellant a full discovery as to the circumstances under which the said proposal was executed, and as to the true nature of the agreement between him and P. W. Callaghan, but also for the purpose of having the proposal and acceptance delivered up to be cancelled.

The Appellant put in his answer to the cross-bill, and both causes being at issue, witnesses were examined on both sides in the original cause, and it was agreed that the proofs made in that cause should be read in the cross-cause, if necessary.

The Appellant's answer and the evidence on his part were in substance, that on the death of D. Callaghan, the father of both parties, in 1824, the Appellant became the head of the establishment at Lota, and at his own expense, with the assistance of his mother out of her jointure, and of a contribution of 150l. a year from his unmarried sister, he kept up the establishment, and he and his mother and sister, and his two brothers Richard and George, continued to reside there up to the present time, neither of these brothers having ever contributed anything towards the expenses: That in 1827, P. W. Callaghan, who was the third brother of Appellant and Respondent (the Respondent being the eldest, and the Appellant the second son), went to reside at Lota with his mother and the Appellant, and continued to reside there up to his death, without

1841.

CALLAGHAN

v.

CALLAGHAN.

1841. CALLAGHAN

v.

CALLAGHAN.

wages

upon

paying any part of the expense of the establishment,
except the
of a valet, who waited
him ex-
clusively: That in 1834, P. W. Callaghan purchased
from the Appellant the whole demesne, including
the two houses and premises of Lota and Fort Wil-
liam, for 6,000l.: That the greatest affection and
attachment existed between him and the Appellant;
and although he had purchased the property, he
regretted having taken the place from the Appellant,
whom he considered as the head of the family, and
wished to be in as independent circumstances as pos-
sible; and on this account he repeatedly pressed the
Appellant to take back the place, and five or six
months before his death he stated to his sister his
intention to make it over to the Appellant: That
accordingly, a verbal agreement was come to between
them, that the Appellant should have the mansion-
house, lands and premises of Lota made over to him
again, whenever he might wish it, on terms which
would be beneficial to him; and in the course of the
summer of 1837, it was finally arranged between
them that the agreement should be put into writing
by Mr. Carden Terry, as the solicitor for both parties,
in the form of proposal and acceptance, as already set
forth; and it was intended by both that the agreement
should be unconditionally carried into effect, not be
subject to any qualification or contingency, but bind-
ing and conclusive on both parties: That Mr. Terry
was in England for some months up to the beginning
of October 1837, but shortly after his return the
Appellant, in pursuance of the said arrangement, gave
him verbal directions to prepare the draft of proposal
for the acceptance of his brother: That the Appellant
had been re-elected Member of Parliament for Cork
in August 1837, having then a freehold qualification

of from 3,000l. to 4,000l. a year; and on the 8th of September he was required to take, and he took before the sheriff of the county, the oath required to be taken by Members as to their qualification, and he stated the places in which his property constituting his qualification was situated: That for some time. after the election a rumour prevailed that a petition would be presented against his return, on the ground of want of qualification; and these circumstances having drawn his attention to the inconvenience and expense of being compelled to produce his title-deeds, and of carrying over witnesses to London for the purpose, on the occasion of giving instructions to Mr. Terry to prepare the agreement, the Appellant stated to him that he wished the property to be made over to him in that particular manner, because it would enable him, at any future election, to prove his qualification as a Member at less expense than would be occasioned by proving his title-deeds of his other properties; but on the occasion of the instructions being given no reference whatever was made to the threatened petition: That the parties who promoted the petition against the Appellant's return took the opinion of counsel; and that opinion, dated the 31st of October 1837, was received in Cork on the 6th of November, and the probability of the petition being abandoned, in consequence of the opinion, was rumoured in Cork on the 7th, and the petition was formally abandoned on the 13th of November, and its abandonment was formally announced on that day to a Mr. Taylor, a friend of the Appellant, and was known to the Appellant by rumour as early as the 10th of November, and in a formal manner on the 14th at the latest; on which day, the Appellant having before received the form of the proposal and

1811.

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