Babington v O'Connor

• Jurisdiction: Ireland
• Judgment Date: 10 May 1887
• Docket Number: (1886 — H. No. 467.)
• Date: 10 May 1887
• Court: Queen's Bench Division (Ireland)

Q. B. Div.

Before SIR MICHAEL MORRIS, C. J., and JOHNSON, J.

(1886 H. No. 467.)

BABINGTON

and

O'CONNOR

Cooch v. Goodman 2 Q. B. 580.

Pistor v. CaterENR 9 M. & W. 315.

How v. GreekENR 3 H. & C. 391.

Toler v. SlaterELR L. R. 3 Q. B. 42.

Evans v. GreyUNK 9 L. R. Ir. 539.

Walton v. WaterhouseENR 2 Wms. Saund. 826.

Pitman v. WoodburyENR 3 Exch. 4, 13.

Boyle v. MonkUNK 7 Ir. C. L. R. 279.

Rose v. PoultonENR 2 B. & A. 822.

Soprani v. SkurroENR Yelv. 19.

Swatman v. AmblerENR 8 Exch. 72.

Walsh v. Lonsdale 21 Ch. Div. 9.

Jackson v. PiggottENR Carth, 459.

Jones v. JonesENR 1 C. & M. 721.

Spicer v. BurgessENR 1 C. M. & R. 129.

Matson v. BoothENR 5 M. & S. 223.

Zouch v. ClayENR 1 Ventr. 185.

Soprani v. SkurroENR Yelv. 18.

Xenos v. Wickham L. R. 2 H. L. Cas. 296, 323.

Evans v. GreyUNK 9 L. R. Ir. 539, 546.

Londlord and tenant Lease Non-execution by lessor Assignment before accrual of rent due.

Appeal. rates; but that does not get rid of the enactment, that the rates 1886. must be paid : 30 & 31 Vict. c. 102, s. 3; extended to Ireland .'LA:." by 48 Vict. c. 3. BucuarteN. If the lessor pays the rates, then the occupier is in the same position as if he had paid them : 32 & 33 Vict. c. 41, s. 7. Then follows the provision as to giving notice to the occupying tenant to enable him to come in and pay the rate himself : 30 & 31 Viet. o. 102, s. 28. What are the consequences of the official not giving that notice ? The consequences are, that the official who does not give the notice is punishable for his neglect ; but the Act of ParliaÂÂment does not go on to provide that, if the notice is not given the occupier may vote, even though the rates are not paid. On these grounds, we think that the decision of the Revising Barrister was wrong, and that it should be reversed. FITZ GIBBON and BARRY, L.JJ., concurred. Solicitor for the appellant : Wm. Wilson. Solicitor for the respondent : P. A. Chance. Q. B. Div. BABINGTON v. O'CONNOR (1). 1887. Feb. 23, 26. (1886-H. No. 467.) May 10. Landlord and tenant-Lease-Non-execution by lessor -Assignment before accrual of rent due. In March, 1884, a lease, from the plaintiff to the defendants, of premises, at the yearly rent of 60, and containing a covenant to pay such rent, was exeÂÂcuted by the defendants, but not by the plaintiff, in whose possession the docuÂÂment remained. The defendants went into possession under the lease, and paid two quarters' rent up to the 29th September, 1884. The defendants afterwards proposed to surrender the lease, or to assign their interest in it to one P., and that he should be accepted as tenant in their stead, and that they should be (1) Before Sin MICHAEL MORRIS, C. J., and Joaxson, J. Vol.. XX.] Q. B., C. P., & EL DIVISIONS. discharged from further liability under the lease. Both these propositions were rejected by the plaintiff. It was, however, proposed and agreed to beÂÂtween the plaintiff and defendants that the lease should be altered by making the rent payable in advance, and it was re-engrossed, expressed to bear date the 18th October, 1884, and executed by the defendants on the 11th December, 1884, on which day they executed an assignment of it to P., who paid rent up to the 25th March, 1885. The plaintiff did not execute the lease till the 26th April, 1886, when he executed it in the absence of the defendants, and the lease remained throughout in the plaintiff's possession. In an action to recover one year's rent, up to the 25th March, 1886, sued for upon the covenants in the lease of the 18th October, 1886, and in the alterÂÂnative upon a yearly tenancy, the jury found that the plaintiff had not agreed to discharge the defendants from rent to accrue after the assignment to P., and that the alteration in the lease, making the rent payable in advance, had been made with P.'s consent. They disagreed upon the question also subÂÂmitted to them, whether the plaintiff accepted P. as tenant before the accrual of the rent sued for, and the Judge at the trial thereupon directed a verdict for the plaintiff: Held, that the direction was right. MOTION on behalf of the plaintiff to show cause against a conÂÂditional order obtained by the defendants, that the verdict and judgment had for the plaintiff at the Summer Assizes of 1886 for the county of Cork, before Dowse, B., should be set aside, and a verdict and judgment entered for the defendants, pursuant to leave reserved, or for a new trial. The action was brought for 60, being four quarters' rent, payable in advance, of a dwelling-house, No. 5, Cooke-street, in the city of Cork, up to and ending the 26th March, 1886. The pleadings and facts of the case material to this report appear sufficiently from the judgment of Johnson, J. J. C. Lane, Q.C., and J. B. Sandford, showed cause : The general rule is that the lessor can sue on a covenant in a lease, even though he has not...