Bell v Archbold

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 15 May 1907
• Court: King's Bench Division (Ireland)
• Date: 15 May 1907

Bell

and

Archbold (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1909.

Land Law (Ireland) Act, 1881, s. 21 — Land Law (Ireland) Act, 1887, s. 1 — Covenants consistent with a statutory tenancy.

Held, that the covenant was applicable to the statutory tenancy so created in the holding, and that the tenant was entitled to deduct from the judicial rent payable by him the interest payable to him on the said sum of £200 under the covenant.

New Trial Motion.

The action, which was tried before Kenny, J., without a jury on February 12th and 26th, 1907, was brought for the recovery

of £160 12s. 6d. rent up to and including the gale due 1st May, 1906, out of the lands held by the defendant under a lease dated the 27th February, 1873, made to John Archbold for a term of sixty-one years, at the yearly rent of £200. The lease contained a covenant by the lessor to pay the lessee, or to allow him out of his rent, interest at the rate of £5 per cent. on a sum of £200, which had been deposited by the lessee with the lessor as security for the payment of the rent and the performance of the covenants on the part of the lessee contained in the lease; and at the end or other sooner determination of the demise to apply and set off the said sum of £200 in liquidation and discharge of the previous year's rent, provided that the several clauses and conditions contained therein were faithfully performed and observed. By the orders of the Irish Land Commission, dated the 1st March, 1888, and 1st June, 1905, respectively, the rent of £200 was reduced to £145 and £111 successively. By the order of the 1st June, 1905, it was declared that in fixing the fair rent no allowance had been made in respect of the said sum of £200, and that the order was made without prejudice to the rights (if any) of the tenant in respect of the same under the covenants contained in the lease.

To the plaintiff's claim the defendant pleaded, as a set-off, three and a half years' interest on the said sum of £200, amounting to £35, and brought into Court, on a plea of tender (which was admitted), the balance of the plaintiff's claim, viz., £123 12s. 6d. There was also a plea of set-off of the £200 itself, but this defence was abandoned at the trial.

The plaintiff, a lunatic suing by her committee, was entitled as tenant for life under the will of the lessor, and the defendant was the successor in title of the original lessee.

Prior to November, 1902, plaintiff had allowed the interest on this sum of £200 to be set off against the rent, and all payments of rent made since that date by the defendant without such deduction were so made under protest.

Kenny, J., held that he was bound by the decision in Nettles v. Murphy(1) to hold that defendant was not entitled to set off this interest, and accordingly gave judgment for the plaintiff.

R. F. Harrison, K.C., and W. H. Brown, for the defendant.

Denis Henry, K.C., and H. M. Thompson, for the plaintiff:—

The covenant to allow interest on the £200 is merely collateral, and does not run with the land so as to bind an assignee of the landlord's estate. It is not an incident of the holding; for if it was, the Land Commission would have taken it into consideration when fixing a fair rent, and the contract to allow this interest out of the rent reserved by the lease does not extend to the new and substituted rent now payable.

A lease, made in 1873, contained the following recital and covenant:— “And whereas the said John Archbold, the lessee, has deposited with the said William Bell, the lessor at the time of the execution hereof, a sum of £200 as security for the due payment of the rent hereby reserved, and the performance of the covenants herein contained, and which it has been agreed shall be allowed to the said John Archbold, his executors, administrators, or assigns (if permitted to assign), in liquidation of the rent of the premises hereby demised last accruing before the determination of the said term, provided the several clauses and covenants in these presents contained shall have been, up to the surrender of the premises hereby demised, faithfully observed and performed, he, the said William Bell, doth hereby for himself, his heirs, executors, administrators, and assigns, covenant with the said John Archbold, his executors, administrators, and assigns, that he, the said William Bell, his heirs, executors, administrators, and assigns, shall and will pay to, or allow...