Borrowes v Delaney

• Jurisdiction: Ireland
• Judgment Date: 04 December 1889
• Date: 04 December 1889
• Docket Number: (1889 — A. No. 51.)
• Court: Exchequer Division (Ireland)

Ex. Div.

Before DOWSE, B., and ANDREWS. J.

(1889 — A. No. 51.)

BORROWES

and

DELANEY

Bolton v. BarryUNK 12 L. R. Ir. 158.

Burchell v. Clark 2 C. P. Div. 88.

Lamb v. BruceUNK 45 L. J., Q. B., 538.

Steele v. HaddockENR 10 Ex. 643.

Breslauer v. BarwickUNK 36 L. T. (N. S.) 52.

Bolton v. BarryUNK 12 L. R. Ir. 158.

Lucker v. Dennis 7 Ch. Div. 227.

Sanderson v. Piper 5 Bing. N. c. 425.

Chapman v. Beecham 3 Gale & Davison, 71.

Bolton v. BarryUNK 12 L. R. Ir. 158; afterwards affirmed on appeal.

Wilson v. SmythDLTR 23 Ir. L. T. R. 7.

Pattison v. Fingleton Unreported. Decided by the Queen's Bench Division, and affirmed by the Court of Appeal, Michaelmas Sittings, 1887.

Spencer's Case 1 Smith L. C. 65.

Congleton v. PattisonENR 10 East. 130, 138.

Grey v. Cuthbertson 2 Chit. 482.

Stevens v. CoppELR L. R. 4 Ex. 20.

Thomas v. HaywardELR L. R. 4 Ex. 20.

Bolton v. BarryUNK 12 L. R. Ir. 158, 164, 165.

Strickland v. MaxwellENR 2 Cr. & M. 539.

Spyve v. TophamENR 3 East. 115.

Burchell v. Clark 2 C. P. Div. 88.

Breslauer v. BarwickUNK 36 L. T. (N. S.) 52.

Mostyn v. West Mostyn Coal and Iron Co. 1 C. P. Div. 145.

Lease — Mutual mistake — Pleading — Deposit to be applied in discharge of last half-yearly gale — Continuance in possession — Application to fix fair rent.

His LORDSHIP said that he was satisfied there was a bona fide Ex. Div. transaction between the defendant and the Bank, and that it was 1889. Mumlitu made for valuable consideration. In his opinion, that transaction v. %REMIT. amounted to an equitable assignment to the Bank of the defen- X dant's beneficial interest in this sum of money. The defendant, in his affidavit, admitted that he had no interest in the money at the time the conditional order was made. That being so, all the beneficial interest of the defendant had passed to the Bank, and no interest whatever remained in the defendant capable of being attached by the receiver order. The conditional order should be discharged, with £4 4s. costs, to be paid by the plaintiff. Solicitor for the plaintiff : M. Murphy. Solicitor for the Provincial Bank : A. J. Boyd. BORROWES v. DELA.NRY (1). (1889-A. No. 51.) Lease-Mutual mistake-Pleading-Deposit to be applied iedischarge of last half-yearly gale-Continuance in possession-Application tofa fair rent. A lease for twenty-one years, from the 29th September, 1867, at a rent of £80, payable half-yearly, was made in consideration of £40 paid by the lessee to the lessor, and contained a clause that the lessor, his heirs and assigns, should allow to the lessee, his executors or administrators, the said sum of £40 in disÂcharge of the half-year's rent which would accrue due on the 29th September, 1818, provided the term thereby granted should not have been previously forÂfeited. In an action by the lessor against the assignee of the lease for the gale of rent due the 29th September, 1888, the defendant pleaded that the date " 1898" was inserted by mutual mistake for " 1888 "; and the plaintiff replied that the agreement between the plaintiff and the lessee was that the said sum of £40 should be allowed to the lessee upon the termination of the tenancy, and upon possession of the lands being given up to the plaintiff, and upon due perÂformance of the covenants in the lease ; and that the defendant had not given (1) Before Down, B., and ANDRIWII, J. Ex. Div. 1889. Nov. 27, 28. Deo. 4. LAW REPORTS (IRELAND). It.t up possession, but had served an originating notice to fix a fair rent for the holding. The plaintiff, who was examined as a witness for the defendant, admitted that the figures 1898 were inserted by mutual mistake for 1888, bat proved that the £40 was to answer the performance of the lessee's covenants, and to be refunded when the term of the tenancy expired. There was no forÂfeiture of the lease, but the defendant continued in possession, and had served an originating notice, as alleged. The jury, in answer to the only question submitted to them, found that 1898 was a mutual mistake for 1888 : Held (1), that although there was no counterclaim to rectify the lease, the Court was entitled, upon the pleadings and evidence, to treat the lease as reformed by the substitution of 1888 for 1898. (2) That, treating the lease as so reformed, the defendant was entitled to credit for the £40 deposit as against the gale of rent sued for. Bolton v. Barry (12 L. II. Ir. 158) distinguished. Cann snowN by the defendant against entering a verdict and judgment for the plaintiff. The action was brought by the plaintiff, Sir E. D. Borrowes, Bart., to recover the sum of £40, being a gale of rent due the 29th September, 1888, under an indenture of lease, dated the 17th Feb., 1868. The statement of claim set out the said lease, whereby the plaintiff demised certain lands to W. Phelan for a term of twenty-one years from the 29th September, 1867, at the yearly rent of £80, payable half-yearly, on the 25th March and 29th September in each year : that afterwards during the said term, and prior to the accruing due of the gale of rent sued. for, all the estate of the said W. Phelan in said lands became vested in the defendant, who thereupon entered and was then in possession of same : that defendant had not paid the gale of rent payable under the said lease on the 29th September, 1888. The defendant, by his defence, admitted the allegations in the statement of claim, and pleaded that the said lease was made in consideration of the sum of £40, paid by the said W. Phelan to the plaintiff on the execution of the said lease, and that it was agreed by and between the plaintiff and the said W. Phelan that the plaintiff should allow to the said W. Phelan, in discharge of the half-year's rent which should accrue due on the 29th September, 1888, the said sum of £40, and that said lease contained a covenant to that effect, but that through inadvertence and mutual mistake the date " 1898 " was inserted Tot. XXIV.] Q. B. & EX. DIVISIONS. Z05. for " 1888," (1) and as an alternative plea averred that the said Es. Div. W. Phelan satisfied the plaintiff's claim by payment at the date 1889. of the said lease of the said sum of £40. The plaintiff thereupon Mumma replied, joining issue on the defence, and further pleaded that NUM. the agreement between the plaintiff and W. Phelan was not that alleged by the defendant, but was that the said sum of £40 should be allowed to the said W. Phelan, his executors, or administrators, upon the termination of the tenancy created by the said lease, and upon possession of the said lands being given up to the plaintiff, and upon due performance of the lessee's covenants therein conÂtained, that the term created by the said lease had expired, but the defendant did not then give up possession of the said lands, but retained possession thereof, and had served an originating notice to have the fair rent of the said lands fixed. Issue was joined on the reply. The action was tried before Mr. Justice Gibson and a jury of the city of Dublin in the Trinity Sittings, 1889. No evidenoe was given on behalf of the plaintiff ; and plaintiff's counsel contended :-1, that the gale in the covenant had not arrived ; 2, that if the lease be reformed the date must be the determination of the tenancy ; 3, that the covenant did not run with the land, and defendant was assignee of the original lessee. On behalf of the defendant the plaintiff was then called as a witness, and examined. He deposed that he had no doubt he was paid the £40. The lease was for twenty-one years, ending Sept., 1888 ; he thought " 1898 " was a mutual mistake for " 1888." On cross-examination he deposed that he recollected the bargain, and it was...