Inchiquin (Lord) v Lyons

 
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Appeal.

Before SIR MICHAEL MORRIS, C.J., and FITZ GIBBON and BARRY, L.JJ.

(1886 C. No. 484.)
LORD INCHIQUIN
and
LYONS

Vance v. VanceUNK Ir. R. 5 C. L. 363.

Bruce v. SteenUNK 14 L. R. Ir. 408.

Delmege v. MullinsUNK Ir. R. 9 C. L. 209.

Doe d. Monk v. Geekie 5 Q. B. 841.

Donnellan v. ReadENR 3 B. & Ad. 899.

Powerscourt v. MitchellUNK 4 L. R. Ir. 82.

Blyth v. DennettENR 13 C. B. 178.

Holme v. BrunskillELR 3 Q. B. D. 495.

M'Carthy v. SwantonUNK 14 L. R. Ir. 365.

Tayleur v. WildinELR L. R. 3 Ex. 303.

Listowel v. KellyUNK 17 Ir. L. T. 285.

Tayleur v. WildinELR L. R. 3 Ex. 303.

Boyd v. PhelanUNK 14 L. R. Ir. 239.

Blyth v. DennettENR 13 C. B. 178.

Listowel v. KellyUNK 17 Ir. L. T. 285.

Tayleur v. WildinELR L. R. 3 Ex. 303.

Yearly tenancy on Increase of rent during year of tenancy.

LORD INCIIIQUIM v. LYONS (1). (1886-C. No. 484.) - Yearly tenancy-Notice to quit not acted on-Increase of rent during year of tenancy. In an action of ejectment on the title, founded on a six months'• notice to quit, it was proved that the defendant had held the lands in question as tenant from year to year, under a letting previous to 1876, at a rent of 167 10s. ; that in April, 1877, a notice to quit on November, 1877, was served on the defendant ; that, while this notice to quit was pending, the defendant and plaintiff agreed that the rent should be increased to L190, as from 1st May, 1877, and the defendant's possession was not disturbed. In April, 1883, the plaintiff served on the defendant a notice to quit on 1st November, 1885, and the question was left to the jury-whether a new tenancy was created by the transaction of 1877 (in which case a twelve months' notice to quit would have been necessary) ; and they having found that the old tenancy continued, a verdict and judgment was entered for the plaintiff: Held, by the Court of Appeal (Sir M. Morris, C.J., Fitz Gibbon and Barry, L.JJ.), reversing the decision of the Exchequer Division, that the question was rightly left to the jury as to whether a new tenancy was created in 1877. A notice to quit which is, during its currency, abandoned by the consent of both parties, and not acted on, does not per se put an end to a tenancy from year to year. An increase of the rent payable by a yearly tenant, by an arrangement during a year of tenancy, does not per se operate to put an end to the old tenancy and create a new one. Tayleur v. Wildin (L. R.. 3 Ex. 303) and Listowel v. Kelly (17 Ir. L. T. 285) observed upon. APPEAL from an order of the Exchequer Division, dated the 26th November, 1886, setting aside a verdict and judgment for the plaintiff, and ordering a verdict and judgment to be entered for the defendant, on the ground that the Judge at the trial ought to have so directed. VOL. XX.] Q. B., C. P., & EX. DIVISIONS. 475 The action was one of ejectment on the title, founded on a six Appeal. -months' notice to quit, brought by the plaintiff to recover certain 1887. lands from the representative of John Lyons. John Lyons, pre- INCHIQTTIR v. vious to and in the year 1877, held the lands under the plaintiff as Lvoss. tenant from year to year, at the yearly rent of 167 108. The letting was made prior to 1876, and was found by the jury in the present action to have been wholly or mainly for the purposes of pasture. On 20th April, 1877, a notice to quit on the 1st NoÂÂvember, 1877, was served on the tenant, John Lyons. In the month of August or September an arrangement was entered into between John Lyons and the plaintiff that the rent should be increased. to 190, as from the 1st May, 1877, and nothing was done upon the notice to quit, and possession was not taken or demanded under it ; but John Lyons continued in possession, and paid the increased rent from the 1st May, 1877. On the 26th April, 1885, a notice to quit was served upon John Lyons to quit upon the 1st November, 1885, and upon this notice to quit the present action was brought. The action was tried before Mr. Justice Harrison and a special jury of the county of the city of Dublin, during the Trinity Sittings, 1886. The learned Judge left to the jury (among other questions) the following question :-" Did the tenancy in John Lyons, existing at the date of the notice to quit of the 20th April, 1877, continue after the year 1877 ? " and the jury answered this question in the affirmative. On the findings, the Judge directed the verdict to be entered for the plaintiff, and entered judgment for the flafandant... Au%) bit. This verdict and judgment were set aside by the Exchequer Division (Palles, C. B., Dowse, B., and Andrews, J.), by the order of the 26th November, 1886, and a verdict and judgment were entered for the defendant. The plaintiff appealed to the Court of Appeal. 2 P 2 476 LAW REPORTS (IRELAND). (L. R. L. Appeal. .Atkinson, Q. C., and George WrigAt; Q. C., for the appellants: 1887. (with them Studdert) : INCHIQUIN V. The question whether the transaction in 1877 created a new ly oss. tenancy was a question for the jury ; and they have decided. it in favour of the plaintiff : Vance v. Vance (1) ; Bruce v. Steen (2). An increase of rent does not necessarily create a new tenancy : Adams on Ejectment (4th Ed.), p. 106 ; Delmege v. Mullins (3) ; Doe d. Monk v. Geekie (4) ; Donnellan v. Read (5). The service of a notice to quit, which is not acted on, does not determine a yearly tenancy : Powerscourt v. Mitchell (6) ; Blyth v. Dennett (7); Holnie v. Brunskill (8). The respondent must show that he was entitled to• a direction. Surrender by operation of law is always a matter of inÂÂtention of the parties. The Land Law (Ireland) Act, 1881, sect. 13, sub-sect. 5, provides that the service of a notice to quit, to enforce which no proceedings are taken by the landlord, shall not operate to determine...

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