Gloster v Murphy

• Jurisdiction: Ireland
• Judgment Date: 01 January 1894
• Date: 01 January 1894
• Court: King's Bench Division (Ireland)

Gloster

and

Murphy.

Vol. II.] ft. B. & EX. DIVISIONS. 49 G-LOSTER v. MUEPHT (1). Q. B. Div. 1893. Landlord and tenantRent "including all taxes, charges, and impositions" Oct. 31. "payable out of the premises"Liability to local "improvement rate" Nov. 1, 2 Limerick Improvement Act, 1853 (16 17 Viet. c. cxciv.)The Towns Improvement Clauses Act, 1847 (10 11 Vict. c. 34). Under a lease of premises in the borough of Limerick, made in 1854, the reddendum stated the rent as £9 15s., " including all taxes, charges, and impositions whatsoever," the lessor covenanting to pay " all taxes, charges, and other impositions which may become due and payable out of the said demised premises ": Held, following Palmer v. Power (4 Ir. C. L. R. 191), that the lessee was not entitled to deduct the amount of the local "improvement rate" levied under the Limerick Improvement Act, 1853, and the Towns Improvement Clauses Act, 1847, such rate being a personal tax. Palmer v. Power (4 Ir. C. L. R. 191) and Barcroft v. Welland (12 L. R. Ir. 35) considered. Case stated pursuant to 27 & 28 Vict. c. 99, upon the hearing of a civil bill appeal, tried before Mr. Justice Gibson, at the County Limerick Summer Assizes, 1893. The case stated was to the following effect: This was an appeal by the defendant from a decree of the County Court Judge of the County Limerick, dated 6th June, 1893, in a process to recover £9 15s., one year's rent to 1st November, 1892, due out of certain premises in Limerick, held by the defendant, as assignee of a lease, dated 20th May, 1854, from George Gloster, the plaintiff's predecessor in title, to John Frawley. The reddendum in this lease was as follows:" Yielding and paying therefor and thereout during the said term (100 years) unto the said George Gloster (the lessor), his heirs and assigns, the yearly rent or sum of £9 15s., to be paid half-yearly every 1st November, and 1st May in every year, during the term hereby (1) Before Sis P. O'Beien, C.J., and Harbison, Holmes, and Madden, JJ. Vol. II. E 50 THE IRISH REPORTS. [1894. Q. B. Div. granted, including all taxes, charges, and impositions whatsoever." ._1893, The lease contained a covenant, on the lessee's part, well and truly Gloster to pav f.Q tQe gai,j G.eorge Grloster, his heirs and assigns, the said Muephy. reserved yearly rent of £9 15s., including all taxes as aforesaid, and on the part of the lessor the covenant following:" And the said George Gloster tioth hereby for himself his heirs and assigns, covenant and agree to and with the said John Frawley, his executors, administrators, and assigns, that he the said George Gloster, his heirs and assigns, shall and will during the term hereby granted well and truly pay, or cause to be paid, all taxes, charges, and other impositions which may become due and payable out of the said demised premises, and in case of nonpayment thereof by the said George Gloster, his heirs or assigns, that he the said George Frawley, his executors, administrators, and assigns, shall be at liberty to reimburse himself or themselves out of the yearly rent any sum which he or they shall or may have occasion to pay for or on account of said taxes." The value of the premises had been increased from £5 10s. to £24 per annum, by certain additions made to the buildings thereon by the lessee. The defendant claimed as against the rent to be entitled to credit for certain payments made by him during the current year: (1), half poor rate, amounting to 17s. lOd. ; (2), £6 for improvement rate,'and ; (3) £1 10s. for general purposes rate. Counsel for defendant contended1, that, as to all these items of deduction the lessor was, under the lease, liable to indemnify the lessee : Barcroft v. Welland (1); 2, that, under the statutes, the improvement rate and the general purposes rate were charged on the premises and must fall within the lessor's covenant. The plaintiff, at the hearing of the appeal offered to allow the deduction of £1 10s. for the general purposes rate and half poor rate on the rent of the premises, and alleged that this had been offered in the Court below, though the decree was for the full amount sued for. The learned Judge added that it was to be taken that the rates (1) 12 L. R. Ir. 35. Vol. II.] Q. B. & EX. DIVISIONS. 51 were duly made and that they were duly paid by the defendant, Q- B. Div. the only question being whether the plaintiff was not bound to_1893, indemnify the defendant and stated, for the opinion of the Court, Gl0^TEE the question whether the defendant, on the true construction of the Mubpht. lease and of the statutes (16 & 17 Vict, c. cxciv.; 47 Geo. 3, c. lxxv.; 51 Geo. 3, c. civ.), was entitled to credit for any, and which, or what part, of the sums aforesaid paid by him and relied on by way of set-off. At the hearing of the case stated, counsel for plaintiff only pressed the claim that the lessee was not entitled to deduct the account of the Improvement Rate. The Limerick Improvement Act, 1853 (16 & 17 Vict. c. cxciv.), repeals {section 1) the two earlier local Acts, 47 Geo. 3, sess. 2, c. lxxv., and 51 Geo. 3, c. civ.; provides {section 39) that the Town Council shall raise and levy off the borough by means of a rate for general purposes, a rate for all purposes for which the Grand Jury theretofore was empowered to make provision; but in no case was this rate for general purposes, to be applicable to the making, enlarging, repairing, or paving any street, road, or passage within the borough ; provides {section 57) that the provisions of the...