Hanway v Taylor

• Jurisdiction: Ireland
• Judgment Date: 06 May 1873
• Date: 06 May 1873
• Court: Exchequer (Ireland)

Exchequer.

HANWAY

and

TAYLOR.

Goodwin v. NobleENR 8 E. & B. 587.

Bishop v. The Trustees Bedford CharityENR 1 E. & E. 697, 714.

Cartwrigth v. GloverENR 2 Giff. 620.

Nickells v. Atherstone 10 Q. B. 944.

Doe v. AndrewsENR 4 Bing. 348.

Copeland v. StephensENR 1 B. & Al. 593.

Doe v. SpicerENR 3 Bing. 206.

Doe d. Palmer v. AndrewsENR 4 Bing. 348.

Evidence of tenancy Tenancy from year to year Question for jury Insolvency 20 & 21 Vict. c. 60, ss. 267 & 268 Election of assignees to take tenancy.

254 THE IRISH REPORTS. [I. R. HANWAY v. tA.iLOR. Evidence of tenancy-Tenancy from year to year-Question for jury-InsolÂÂvency-20 4 21 Vict. c. 60, ss. 267 4 268-Election of assignees to take tenancy. 1. The Plaintiff hdd, held lands as tenant to the Defendant under a lease for lives, and was evicted for non-payment of rent ; in February, 1868, the Defendant took possession under a writ of habere, and let the lands to another person subject to redemption, the period for which would expire on the 4th of November, 1868, and, as they were not redeemed, re-let them to the same perÂÂson, who continued in possession down -Co 1872 ; but, in the meantime, the Defendant had received a half-year's rent as due " by the representatives of the Plaintiff" to the 1st of May, 1868, and another as due " by the representatives of the Plaintiff" on the 1st of November, 1868 :-Held, in an ejectment brought in 1873, that the above payments were evidence, which had been rightly subÂÂmitted to the jury, of an acknowledgment, by the Defendant of the existence upon those days, of a tenancy in the Plaintiff subject to a rent payable upon those days ; and that, as no other tenancy appeared under which these gales would have been payable, the tenancy so acknowledged would, primd facie, be a tenancy from year to year. 2. A tenant from year to year of certain premises became an insolvent in 1871, but no trade assignee was appointed, and it did not appear that the official assignees had elected to take the tenancy :-Held, that, upon the true construction of ss. 267 and 268 of " The Irish Bankrupt and Insolvent_Act, 1857 " (20 & 21 Vict. c. 60), the tenancy from year to year did not pass to the official assignees by the mere act of filing the petition, but remained in the insolvent subject to the right of the assignees to elect to take the tenancy ; and that, in the absence of evidence of any such election by the assignees, the insolÂÂvent was entitled to recover possession of the premises (1). EJECTMENT to recover two separate parcels-one a farm of 170 acres, which had been demised to the Plaintiff by lease of the 30th of December, 1830, for lives, one of which is still subsisting, at a rent payable on 1st of May and 1st of November ; the other, a farm of 17 acres, which had been held by the Plaintiff as tenant from year to year tOihe Defendant. (1) Though the Court decided the diet which he had obtained, as being above questions in favour of the against the weight of evidence. Plaintiff, yet they set aside the ver Vox.. VIII.] COMMON LAW SERIES. 255 The case was tried before Pigot, C. B., at the Meath Spring Exchequer. Assizes, 1873. 1874. Three half-yearly gales of the rent of the first-mentioned pre- E _ANWAY mises being in arrear, Colonel Taylor, the landlord (the Defendant TAYLOR. in the present action) brought an ejectment for non-payment of rent, in which judgment was entered on the 21st of January, 1868, and on the 30th of the same month a writ of habere issued, under which possession was taken on the 4th of February, 1868. On the same day Colonel Taylor let the premises by lease to one Patrick Banon for a period of nine months, pending redemption, which would expire on the 4th of November, 1868, at a rent which would not accrue due until that day ; Banon went into possession, the premises were not redeemed, and, in that state of facts, no rent would have accrued due by Hanway or his representatives on the 1st of May, 1868, or on the 1st of November, 1868; but, on the 28th of November, 1868, a sum of 51 3s. 10d. was paid to Colonel Taylor's agent, and by him entered in the rent book and in the receipt as half a year's rent " due by the representatives of Hanway to the 1st of May, 1868." The time for redemption having expired, Banon, on the 7th of December, 1868, proposed in writing to become tenant of the premises (with a small addiÂÂtional lot) for one year, from the 1st of November, 1868, at the rent of 105 12s., payable on 1st of May and 1st of November; the agent aceepted that proposal ; but, on the 22nd of April, 1869, he was paid a further sum of 51 3s. 10d., which he also entered in the rent book and receipt as a half year's rent " due by the representatives of, Hanway to the 1st of November, 1868." All the subsequent -receipts were made in the name of Banon as tenant. As to second parcel sought to be recovered in the present ejectment, Hanway's wife, during his absence in America, surÂÂrendered them, in 1868, to Colonel Taylor, by whom they were let to one Hugh Reilly, who continued in possession during the years 1869, 1870, and 1871, without any objection on the part of Hanway. Hanway returned from...