Ahearne v M'Swiney

• Jurisdiction: Ireland
• Judgment Date: 12 December 1874
• Date: 12 December 1874
• Court: Queen's Bench Division (Ireland)

Q. Bench.

Before WHITESIDE, C. J., and O'BRIEN and FITZGERALD, JJ.

AHEARNE

and

M'SWINEY.

Pawle v. Gunn 4 Bingh. N. C. 448.

Barber v. BrownENR 1 C. B. (N. S.) 121.

Osborne v. Rogers, executor of WestonENR 1 Wms. Saund. 264, n. 1.

Garden v. BruceELR L. R. 3 C. P. 300.

Wilkinson v. VerityELR L. R. 6 C. P. 206.

Murray v. The East India Co.ENR 5 B. & Al. 205.

Mackey v. HawkinsENR 4 C. B. 665.

Sapsford v. FletcherENR 4 T. R. 511.

Taylor v. ZamiraENR 6 Taunt. 524.

Carter v. CarterENR 5 Bing. 406.

Jones v. MorrisENR 3 Ex. 742, 186.

Money paid Voluntary payment Subsequent adoption Cause of action Statute of Limitations

568 THE IRISH REPORTS. [I. R. AHEARNE v. M'S W1NEY (1). Money paid-Voluntary payment-Subsequent adoption-Cause of action- Statute of Limitations-." Landlord and Tenant Act, 1860," ss. 21, 48. The Plaintiff (a sub-tenant), after action brought by the mesne-landlord against him for his own rent, voluntarily paid in 1866 to the head-landlord a gale of head-rent then due by the Defendant, the mesne-landlord ; in 1867 he sought to deduct the sum so paid from the rent payable by him to the DeÂÂfendant, who refused to allow the deduction, and, in a second action for rent brought by him, successfully resisted the effort of the present Plaintiff to rely upon that payment either as a set-off or as payment ; subsequently, in 1868, the DeÂÂfendant claimed and obtained from the head-landlord credit for that gale of head-rent :-Held, in an action brought in 1873, (1) that the Plaintiff was entitled to recover the sum so paid as money paid for the Defendant at his request; (2) that the cause of action accrued, not in 1866 at the time of the payment, but in 1868 at the time of the adoption of it by the Defendant, and, therefore, was not barred by the Statute of Limitations. Per FITZGERALD, J.-It may come to be determined that a tenant, who is authorised by s. 21 of the " Landlord and Tenant Act, 1860 (23 & 24 Viet. c. 154) (2), to pay the head-rent to the head-landlord and to deduct it when payÂÂing his rent to his immediate landlord, may maintain an action for its recovery if the deduction is refused. ACTION tried before FITZGERALD, J., at the Cork Spring AsÂÂsizes, 1874. The plaint, which was issued on the 28th of October, 1873, contained one count for recovery of 79 6s. 10d. money paid; the Defendant pleaded (1) a denial that the money was paid as alleged, and (2) the Statute of Limitations. (1) Before "WHITESIDE, C. J., and O'BRIEN and FITZGERALD, jj. (2) " Where any tenant sub-letting shall neglect to pay his landlord the rent payable in respect of the lands comprised in the lease, it shall be lawÂÂful for the sub-tenant, after and as often as any one gale of such rent shall have accrued due and remain ,unpaid to such landlord, and before any action brought by such tenant against the sub- tenant, voluntarily to make payment of so much of the rent due by such subÂÂtenant to such tenant as may be suffiÂÂcient to discharge such gale or gales ; and the receipt of the landlord or his agent shall be a full discharge to the sub-tenant against the tenant in respect of all rent so paid." [See 0' Geran v. N.' &piney, Ir. It. 8 Eq. 500, 624.]. VoL. VIII.) COMIION LAW SERIES. In 1770 Edward Dove demised part of the lands of Meglin to one Walsh for the term of 700 years, at the rent of 174 17s. 8c1., payable half yearly ; the lessor's reversion became vested in the Messrs. Popham and Galway, and Mr. Bennett was their agent. In 1783 Walsh sub-demised to one Lenahan for the term of 679 years, at the rent of 207 8s. 8d., payable half yearly ; Walsh's interest became_ vested in the Defendant and Lenahan's in the Plaintiff. Thus, at the time of the transaction in question, PopÂÂham and Galway were the head-landlords, the Defendant the mesne-landlord, and the Plaintiff the sub-tenant. On the 29th of September, 1866, a half-yearly gale of head-rent, 79 6s. 10d., became due by the Defendant to the head-landlords, and, on the 25th of October, 1866, the Plaintiff (after the Defendant had brought an action against him for his own rent) paid that gale of head-rent to the head-landlords, who had not demanded it of him, or distrained, or threatened proceedings for recovery of it. In 1867 the Plaintiff, when settling his own rent with the Defendant, claimed credit from the Defendant for that payment, but it was refused ; and, in the same year, he relied upon it as a defence in a second action for rent brought against him by the present Defendant, who, by his replication in that action, denied that it could be relied on either as a payment or a set-off, and. the present Plaintiff abandoned that defence and paid the full amount of rent then sued for. Subsequently, on the 25th of February, 1868, the Defendant went to Mr. Bennett, the head-landlords' agent, and claimed and got credit, as against the head-rent, for the gale of head-rent so paid. by the Plaintiff, and took from Mr. Bennett a receipt, upon the margin of which was this memorandum-" The September rent, 1866, was not paid us by M'Swiney [the Defendant], but was paid by Dr. Ahearne" [the Plaintiff]. The learned Judge directed a verdict for the Defendant, but reserved liberty to the Plaintiff...