Page:The English Reports v1 1900.pdf/614

approved of such agreement. And the appellant, on the 4th of December 1741, deposited with Lord Kingsland £40 which, in case Peter Daly approved of such agreement, was to go as part of the fine; but could not prevail on Lord Kingsland to give any receipt for the same, as for a fine, or to sign any other writing, except a letter dated the 5th of December 1741, to James Goddart, his steward, directing him to prepare a draft of a lease for the appellant, and to insert such restrictions therein as he and Mr. Daly should think proper; but in that letter no mention was made either of the lands to be let, or of any rent, term of years, or commencement of the lease.

The appellant being conscious, that he had obtained this verbal promise from Lord Kingsland by false suggestions, went the next day with Lord Kingsland's letter to Goddart his steward; and having informed him of the terms of the agreement, offered to pay the remainder of the £61 fine, and desired him to give a receipt for the same, as part of a fine for a lease of the coney-borough and mill of Portmarnock: but Goddart apprehending such receipt to be improper, till the agreement was fully concluded by the consent of Mr. Daly, absolutely refused to give any such receipt, or to receive the money as a fine, until he had acquainted Mr. Daly with the terms of the agreement, which he then had only from the information of the appellant; and Goddart also informed the appellant, that no agreement would be concluded, or [326] lease made without the consent of Mr. Daly; whereupon the appellant consented to pay the money to Goddart as a deposit only, till the agreement should be concluded, and to accept a receipt from Goddart, to be accountable for it on demand; and was so far from looking upon his agreement as conclusive on Lord Kingsland, that he then, and often afterwards, requested Goddart's friendship and interest with Mr. Daly and Lord Kingsland, for his getting a lease; and gave Goddart directions to prepare a draft of a lease, to be laid before Mr. Daly, according to the terms of the proposal he then informed Goddart he had made to Lord Kingsland.

In pursuance of these instructions, Goddart prepared part of a draft of a lease, and soon after acquainted Mr. Daly with the whole affair; but Mr. Daly was so far from approving of or consenting to the lease, or any agreement with the appellant, that he, immediately upon seeing the draft, declared, that the respondent Wakely had a previous promise of a lease, and therefore must and ought to have a preference; and Goddart soon after informed the appellant of such his discourse with Mr. Daly, and offered to pay back the £21, and the draft was never completed, nor was any lease ever executed to the appellant: and when Mr. Daly afterwards heard, that the appellant had informed Lord Kingsland that he had his approbation to be tenant of the warren and mill, he declared such information absolutely false and groundless.

The respondent. Wakely having received private information that the appellant was thus clandestinely treating with Lord Kingsland for a lease of the premises, charged him therewith, and acquainted the other respondent Lord Athunry and also the Earl of Mount-Alexander, with what had passed in relation to the lease, and desired them to use their interest with Lord Kingsland to prevail with him to perform his promise, and make a lease of the premises to him upon the terms which had been offered to the Cogans. And the respondent Wakely being himself confined with sickness, the Lord Athunry, on his behalf, applied to Lord Kingsland for a lease, who being satisfied of the justice of the respondent Wakely's pretensions, did, with the consent and approbation of Mr. Daly, on the 1st of January 1741, execute an article or minute of a lease, which was drawn by Mr. Daly's clerk; whereby Lord Kingsland, in consideration of £61 paid by Lord Athunry as a fine, demised the premises to Lord Athunry for the term of thirty-one years, to commence from the 1st of May 1745, (when the before-mentioned lease of the warren was to expire,) at the yearly rent of £45 and Lord Athunry then paid to Lord Kingsland the whole fine of £61.

This article, or memorandum, was taken by Lord Athunry, in trust for the respondent Wakely, and the £61 was his proper money.

The respondent Wakely finding that the appellant was, by the permission of the Cogans, preparing to make considerable alterations in the mill and mill-dams; he, in order to prevent the appellant's putting himself to any unnecessary expence