Malton, Appellant; West, Respondent

• Jurisdiction: Ireland
• Judgment Date: 26 November 1877
• Date: 26 November 1877
• Court: Exchequer (Ireland)

Exchequer.

MALTON,

APPELLANT;

WEST,

RESPONDENT.

Palmer v. PowerUNK 4 Ir. C. L. R. 191.

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

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

Hurst v. HurstENR 4 Ex. 571.

Scovell v. GardinerUNK 16 Ir. C. L. R. 318.

Theed v. StarkeyENR 8 Mod. 235, 314.

Rowls v. GellsENR 1 Cowp. 451.

Palmer v. PowerUNK 4 I. C. L. R. 191.

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

Hurst v. HurstENR 4 Ex. 571.

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

Scovell v. GardinerUNK 16 I. C. L. R. 388.

Sanitary rates Tenant's right of deduction.

Vox.. XI.) COMMON LAW SERIES. 525 county weights are to be revised once every five years, as they are Q. Bench. less frequently used, and less likely to suffer from wear and tear. Any omission to compare and. test the standards is therefore HILL v. plainly in favour of the Defendant, and if his weights be found HENNIGAN. too light when compared with the existing standards, the objection of the want of strict affirmative evidence of recent verification of the latter is plainly a captious objection on his part. The result is that, in the opinion of the Court, the magistrates should have convicted. .- Case remitted to the. Justices. MALTON, APPELLANT ; WEST, RESPONDENT. Public Health (Ireland) Act, 1874, 37 4 38 Vict. c. 93-Sanitary rates- Tenant's right of deduction. A tenant (not precluded by contract) is entitled to deduct from his rent a proportion of special sanitary rates assessed in rural districts under the " Public Health Act (Irelan4), 1874" (37 & 38 Viet. c. 93) ; and a reservation of rent in a lease-" over and above all taxes, . . . . assessments and imposiÂÂtions .... charged or imposed on the demised premises ; quit rent, Crown rent, and landlord's part of poor rate and income tax only excepted," does not amount to a contract which precludes the tenant from making the 'deduction. CASE STATED by DEASY, B., for the opinion of the Court. Appeal from a dismiss of the Chairman of the County of Dublin. The Defendant was sued by civil-bill for recovery of 3 18s. 2d., alleged to be due as the balance of the half-year's rent up to and for the 1st of December, 1875, payable under three several leases, dated the 21st of February, 1851, the 11th of November, 1858, and 11th of November, 1858, under which the Defendant held certain lands situated at Loughlinstown in the county of Dublin, at the yearly rents of 220 10s., 4, and 10 respectively. On payment of the gales of rent due the 1st of December, 1875, the Defendant claimed to deduct and did deduct from the half-yearly gale of rent payable under the indenture of lease of the 21st of February, 1851, the sum of 3 13s. 6d., and the respective sums of 18. 4d. and 3s. 4d., under the leases of 11th of Exchequer. 1877. Nov. 10, 12, 26. THE IRISH REPORTS. [I. R. November respectively, in respect of the special sanitary rate of 8d. in the pound. which had been duly assessed on the 30th of June, 1875, on the occupiers of the lands and premises within the conÂÂtributory district of Killiney and Ballybrack, in the Killiney elecÂÂtoral division and the Rathdown union ; these sums of 3 las. 6d. and ls. 4d. and 3s. 4d. being respectively the one-half of the amounts of the special sanitary rate assessed upon the Respondent in respect of the lands of Loughlinstown, and which rate had. been previously paid by him. The deduction so made was objected to by the Plaintiff, on the ground that the provisions of the Public Health (Ireland) Act (37 & 38 Viet. c. 93) did not authorise a tenant holding under lease to make any deduction in respect of such special sanitary rate. In the lease of the 21st of February, 1851, the rent was reÂÂserved " over and. above all taxes, charges, assessments and impoÂÂsitions whatsoever, ordinary or extraordinary, now charged or hereafter to be charged or imposed on the said demised premises or. any part thereof by Act of Parliament or otherwise; quit rent and Crown rent only excepted." In the leases of the 11th of November, 1858, the rent was reserved " over and above all taxes, charges, assessments and impositions whatsoever, ordinary or extraordinary, now charged or hereafter to be charged or imposed on the said demised premises or any part thereof by Act of Parliament or otherwise, quit rent and Crown rent and landlord's part of poor rate and income "tax only excepted." By consent it was admitted: (1) The due execution of the respective leases by the respective parties thereto ; (2) that the Plaintiff was entitled to the gale of rents reserved by; the leases of 21st of February, 1851 ; (3) that a special sanitary rate of 8d. in the pound, within the contributory district of Killiney and Ballybrack, county of Dublin, with a general sanitary rate of one penny, were duly assessed, on the 30th of June, 1875, on the several townlands forming the district, and defined by sealed orders of Local Government Board bearing date the 19th of January, 1875, together with a rate for Poor Law purposes, amounting to 13d. in the pound ; (4) that the lands in respect of...