Davies v M'Mahon

• Jurisdiction: Ireland
• Judgment Date: 14 June 1889
• Date: 14 June 1889
• Court: Court of Appeal (Ireland)

Appeal.

Before LORD ASHBOURNE, C., SIR MICHAEL MORRIS, C.J., and FITZ-GIBBON, BARRY, and NAISH, L.JJ.

DAVIES

and

M'MAHON

The Marquis of Conyngham v. GallagherUNK 22 L. R. Ir. 614.

Landlord and tenant —— "Judicial rent," when "fixed" in case of a rehearing — "The decision of the Court" — Commencement of the "statutory term" — Recovery by tenant of excess of rent paid by him as money had and received — Form of Land Commission's order on a rehearing, merely varying the amount of the "fair rent."

you XXIV.] & EL DIVISIONS. 447 DAVIES v. lillAHON (1). Appeal. 1889. Landlord and tenant-Land Law (Ireland) Act, 1881, s. 8-" Judicial rent," when "fixed" in case of a rehearing-" The decision of the Court"- Commencement of the " statutory term"-Recovery by tenant of excess of rent paid by him as money had and received-Form of Land CommisÂsion's order on a rehearing, merely varying the amount of the " fair rent." In December, 1883, a Sub-Commission fixed the fair rent of a holding (the yearly rent of which had previously been £87, payable on the 1st May and 1st November) at £64. The landlord required the case to be reheard, and on the rehearing the Land Commission, by order made in January, 1888, varied the order of the Sub-Commission by fixing the fair rent at £60, bat declared that in all other respects that order should stand affirmed. The landlord thereupon brought an action against the tenant (who, as from the 1st May, 1883, till the 1st May, 1887, inclusive, had paid the rent at the rate of £64 a-year) for the difference between the old rent and the rent as paid during the period interÂvening between the two orders. The defendant pleaded (among other defences) the order of January, 1888, and that the order of December, 1883, was still "in full force and effect," save so far as it had been varied by the order on the rehearing ; also a set-off, as money had and received by the plaintiff to the use of the defendant, of (among other items) the sum of £2 (being the half-yearly difference between the fair rent as fixed by the Sub-Commission and as fixed on the rehearing) for each of the six half-yearly gales which had been paid at the rate fixed by the Snb-Commission; and counter-claimed for the excess of the total amount of the set-off over £30 admitted to be due for the gale ending the 1st November, 1887. The plaintiff having demurred, on the grounds that " within the meaning of the Land Law (Ireland) Act, 1881, the defendant's judicial rent' was not determined' or fixed' " until the making of the order of January, 1888 ; that the " statutory term" in the holding would not commence to run till the 1st May, 1888, and that the old rent was payable till then : Held, by the Court of Appeal (affirming the decision of the Exchequer Division)-dubitantibus Sir Michael Morris, C.J., and Barry, L.J.-that, havÂing regard to the form of the order of January, 1888, which had not been appealed against, the demurrer should be overruled; that the " statutory (1) Before LORD ASEBOURNR, C., SIR M.Tenam, Mows, C.J., and FrrzÂGIBBON, BARRY, and MUSH, L.JJ. VoL. XXIV 2 Appeai. term" began to run from the gale-day next after the order of December, 1883, 1889. and that the fair rent of £60, as ultimately "fixed" on the rehearing, was DAVIES the rent payable as from the 1st May, 1884. V. Whether the order of January, 1888, could have been successfully appealed M`MAHON. against, on the ground of its form-quere. APPEAL by the plaintiffs from the order of the Exchequer Division of the 12th June, 1888, overruling their demurrer to portions of the 4th and 5th paragraphs of the statement of defence. The particulars are fully stated in the report of the hearing below, ante, p. 73. Serfeant Campion, Q.C., and. E. G. Swifte, for the appellants. June 14. Drummond and Law Smith (with them The Mae Dermot, Q.C.), for the respondent. The arguments and authorities relied upon were substantially the same as those appearing in the report already referred to...