In Greene v Thornton

• Jurisdiction: Ireland
• Judgment Date: 07 August 1885
• Date: 07 August 1885
• Court: Chancery Division (Ireland)

Q. B. Div.

Appeal.

GREENE

and

THORNTON

Ex parte HayesUNK 8 Ir. L. R. 197.

Bradford v. ReidDLTR 12 Ir. L. T. R. 139.

Payne v. BurridgeENR 12 M. & W. 727

Wilkinson v CollyerELR 13 Q. B. Div.1.

Payne v. BurridgeENR 12 M. & W. 727.

Bradford, Appellant; Reid, RespondentUNK 12 Ir. L. R. 139.

Tidswell v. WhitworthELR L. R. 2 C. P. 326.

Allum v. DickensonELR 9 Q. B. Div. 632.

Spanish Telegraph Co., Limited, v. Shepherd Ibid. 202.

Hill v. Edward Weekly Notes, 14 Feb., 1885, p. 32.

Thompson v. LapworthELR L. R. 3 C. P. 149.

Rawlins v. Briggs 3 C. P. Div. 368.

Budd V. Marshall 5 C. P. Div. 481.

Hartley v. Hudson 4 C. P. Div. 367.

Crosse v. RawELR L. R. 9 Ex. 209.

Chaloner v. BolckowELR 3 App. Cas. 933.

Parish v. SleemanENR 1 De G. F. & J. 326

Bennett v. WomachENR 7 B. & C. 627.

Scovell v. GardinerUNK 16 Ir. C. L. R. 316.

Hurst v. HurstENR 4 Ex. 571.

Allum v. DickinsonELR 9 Q. B. Div. 632

Thompson v . LapworthELR L. R. 3 C. P. 149.

Hartley v. Hudson 4 C. P. Div. 367.

Budd v. Marshall 5 C. P. Div. 481.

Tidswell v. WhitworthELR L. R. 2 C. P. 326.

Hill v. Edward Weekly Notes, Feb. 14, 1885.

Spanish Telegraph Company v. ShepherdELR 13 Q. B. Div. 202.

Malton v. West 13 R. B. Div. 202.

Haren v. ArchdaleUNK 14 L. R. Ir. 296.

Parish v. SleemanUNK 1 D. F. & J. 326.

Scovell v. GardinerUNK 16 Ir. C. L. R. 335.

Hurst v. HurstENR 4 Exch. 571.

Tidswell v. WhitworthELR L. R. 2 C. P.326.

Practice Divisional Court Withdrawing judgment Lease Covenant to pay rates 15 & 16 Vict. c. 63, ss. 15, 16; 17 Vict. c. 8 Lands used by lessees for charitable purposes Rates on half the rent Liability of lessees.

VOL. XVI.] Q. B., C. P., & EX. DIVISIONS. 381 GREENE v. THORNTON. Practice -Divisional Court -Withdrawing judgment- Lease- Covenant to pay rates--15 4 16 Vict. c. 63, ss. 15, 16 ; 17 Vict. c. 8-Lands used by lessees for charitable purposes-Bates on half the rent-Liability of lessees. Where a case, requiring to be heard before a Divisional Court, is heard by a Court consisting of only two Judges, and these Judges differ in opinion, the proper practice is to have the case reheard before three or more Judges of that Division, and the old practice of one of the Judges withdrawing his judgÂÂment should not be adopted. Where one of two Judges withdraws his judgÂÂment the order made is that of a single Judge, and not of a Divisional Court. By lease the lands of D. in the township of C. were demised by the Plaintiffs to the Defendants for the term of nine hundred years at the yearly rent of 250, clear of deductions, quit-rent, crown-rent and landlord's proportion of poor rate and income tax only exeepted ; and by the lease the Defendants covenanted to pay during the term the said rent, clear of all deductions save as aforesaid, and to pay all existing and future taxes, rates and assessments of every description for the time being payable in respect of the premises, save as aforesaid. The lands of D. so demised to the Defendants were used exclusively for charitable purposes. The Town Commissioners of C. having, under the 15 & 16 Viet. c. 63, sections 15 and 16, and 17 Vict. c. 8, s. 2, charged the lessors, in respect of half the rent of the premises, certain rates, the Plaintiffs were comÂÂpelled to pay the same : Reid, by the COURT OF APPEAL (affirming the judgment of MAT, C. J., in the Queen's Bench Division, from which O'BRIEN, J., dissented), that the DeÂÂfendants were, under the terms of their lease, bound to recoup the lessors the rates so paid by them. DEmyitREn to the Plaintiffs' statement of claim. The ptatement of claim was as follows : " 1. By an indenture dated the 8th June, 1882, made between the P1 'ntiffs of the one Part and the Defendants of the other part, p t of the lands of Drumcondra, containing 29 A. 1 R. 22 P., _with th dwelling-house thereon, known as Drumcondra Castle, were mired to the Defendants, their executors, administrators and assigns, for the term of nine hundred years from the 1st day of Ilay 1881, subject to the yearly rent of 250, clear of all deductidms, quit-rent, crown-rent, landlord's proportion of poor rate anc income tax only excepted. VoL. 2 L 382 LAW REPORTS (IRELAND). [L. R. I. Q. B. Div. "2. By the said indenture the Defendants covenanted with the 1885. lessors and each of them, his or her heirs and assigns, to pay the GREENE said rent clear of all deductions save as aforesaid, and to pay all THORNTON. existing and future taxes, rates and assessments of every descripÂÂtion for the time being payable in respect of the said premises, save as aforesaid. " 3. By the Act of the 41 & 42 Viet. c. elvii. (local), the townÂÂship of Drumcondra, Clonliffe and Glasnevin was formed, and Commissioners thereof were appointed for the purposes of the said Act. " 4. The lands demised to the Defendants as aforesaid are situate within said township ; same have been since the said letÂÂting and still are used exclusively for charitable purposes. " 5. Under the authority of the said Act, and of the several Acts therewith incorporated, the Commissioners of said township duly made certain rates for the purposes of said township for the years 1882, 1883 and 1884. " 6. Pursuant to the provisions of the Astii., of the 15 & 16 Viet. c. 63, sections 15 and 16, and the 17 Viet. c. 8, s. 2, the said Commissioners charged the lessors (the Plaintiffs) in respect of half the rents issuing out of the premises demised as aforesaid, with the following assessments, viz. :- X s. d. 1882. March 17, - - 23 8 9 1883. February 10, - 25 0 0 1884. March 24, - - 25 0 0 Making in all the sum of 73 8 9 " 5. The Plaintiffs were compelled by process of law to pay the I said. sum of 73 8s. 9d. "8. The Plaintiffs have requested the Defendants, purl` ant to the terms of the covenant aforesaid, to recoup the said s but the Defendants have refused, and still refuse, to do so " And the Plaintiffs claimed payment of the said• s 73 8s. 9d. To this statement of claim the Defendants demurred, on the ground that the Defendants, as lessees of lands and premise s used exclusively for charitable purposes, were not bound or lia e, pur VoL. XVI.3 Q. B., C. P., & EX. DIVISIONS. suant to the terms or within the meaning of the covenant in the statement of claim referred to;to pay to or recoup the Plaintiffs the sum of money in the said statement of claim mentioned, or any part thereof. The reddendum in the lease was as follows : " Yielding and paying therefor during the said term the yearly rent of 250, by half-yearly payments, on every 1st day of May and 1st day of November, the said rent to be paid clear of all deductions (quit-rent, crown-rent and landlord's proportion of poor rate and income tax only excepted) ; " and the covenant to pay was-" That the lessees, their executors, administrators or assigns will, during the said term, pay the said rent on the days and in the manner aforesaid, clear of all deductions, save as aforeÂÂsaid and will pay all existing and future taxes, rates and asssessÂÂmeats of every description for the time being payable in respect of the said premises, save as aforesaid." A. Quill (with him fames Green, Q. C.), for the Defendants, in support of the demurrer. Charles Brady (with him Bewley, Q. C.), for the Plaintiffs, contr Cur. adv. vult. MAY, C. J. :- The Defendants having demurred generally to the claim, the statements therein contained must be assumed to be truly and accurately set forth, and, in fact, it appeared to be admitted that they were agreed upon by the parties in order that the legal point at issue might be raised and decided on demurrer. It must ;thereÂÂfore, for the purposes of this argument, be assumed' that the Plaintiffs (the lessors under the lease of the 8th June, 1882) were legally bound to pay the sums assessed in respect of the half of the rent payable to them by the lessees, the premises themselves being assumed to be exempted from all rates, inasmuch as, during the period in question, they were devoted to charitable purposes. The Plaintiffs contend that, under the true meaning of the covenant contained in the lease, the lessees are bound to indemnify them against the payment of such rates or assessments, the 2 L 2 May 11. LAW REPORTS (IRELAND). [L. R. I. lessees contending that, the premises being so devoted to charitable purposes, and being as such exempted from rates, they are not bound under the covenant to indemnify the lessors against any obligation attaching upon the half rent payable to and receivable by the landlord. The question which depends for determination arises out of the dedication of the demised premises to charitable purposes, the other factors being the covenant of the lessee and the provisions of the local and personal Act referred to. The local Act constitutes the districts dealt with as a separate township, appointing Commissioners for the usual purposes, such as lighting, paving, sewering, supplying with water, and the mainÂÂtenance of roads, footways and bridges, and so forth, these last particulars being, by the 33rd section of the Act, removed from the jurisdiction of the grand jury of the county, the functions of which, however, are not entirely superseded ; and it is also observÂÂable that the administration and collection of the poor rate is not conferred on the Commissioners. The 55th section directs that the rates shall be levied on the occupiers, or, if there be no occupiers, on the owners of the rateable property within the township. The rates levied by the CommisÂÂsioners constitute a consolidated sum, applicable to the various objects set forth in the Act, including a considerable portion, but not the entire, of the functions of the grand jury. The local rate does not, as it appears to me, constitute grand jury cess, much less does it include poor rate. The question which arises seems to be-whether, as between the lessor and lessee, and owing to the covenant contained in the lease, the lessee is bound to judemnify the lessor...