Manning and Another v Saul

• Jurisdiction: Ireland
• Judgment Date: 30 June 1890
• Date: 30 June 1890
• Court: Queen's Bench Division (Ireland)

Q. B. Div.

Before O'BRIEN, HOLMES, and GIBSON, JJ.

MANNING AND ANOTHER

and

SAUL

Phillips v. HartleyENR 3 C. & P. 121.

Doody v. NolanUNK 2 L. R. Ir. 199.

Meara v. Meara 8 Ir. Ch. R. 37.

Leitch v. Simpson Ir. R. 5 Eq. 613.

Poole v. HillENR 6 M. & W. 835.

Markey v. CooteUNK Ir. R. 10 C. L. 149.

Hodgkinson v. CrowELR L. R. 10 Ch. App. 622.

Swatman v. AmblerENR 8 Ex. 72.

Patman v. Harland 17 Ch. Div. 353.

Doe d. Philip v. Benjamin 9 A. & E. 644.

Covenant against alienation — Assignor compelled to pay rent — Liability of assignee to recoup lessee — Assignment — Executory agreement to assign —

MANNING AND ANOTHER v. SAUL (1). Q. B. Div. 1890. Covenant against alienation-Assignor compelled to pay rent-Liability of June 4, 5, 30. assignee to recoup lessee-Assignment-Executory agreement to assign-- Landlord and Tenant Law Amendment Act (Ireland), 1860(23 (5.- 24 Viet. c. 154), sect. 10. Where A, a lessee of a lease for years and a life, with a covenant not to alien or sublet, " agreed to assign " to B, B agreeing to pay the reserved rent, and going into possession, and where A was sued and compelled to pay rent accruing during B's possession: Held, in an action by A against B, upon the agreement, to recover the rent so paid, that the agreement amounted to an assignment, and was not executory merely; and that, as an assignment, it was void under the Act 23 & 24 Vict. c. 154, s. 10, and that therefore A was not entitled to recover. Also, per Holmes and Gibson, JJ., that if the agreement were executory B's liability would only arise on the perfection of an assignment. DEMURRER to the 9th paragraph of the statement of defence. Action by plaintiffs, as executors of Archibold Manning, deceased, to recover £1066 13s. 5d., money paid by plaintiffs as such executors for defendant at his request, and money found to be due on an account stated, and for money due on foot of an agreement, dated the 21st April, 1882, and in the alternative, for damages for breach of said agreement. The statement of claim stated (in paragraph 2) an agreement, of which the following is a copy : - MEMORANDUM of agreement, entered into this 21st day of April, 1882, between Archibold Manning, of, &c., and James Saul, of, &c., whereby the said Manning agrees to assign to the said James Saul all his interest, right, and title in the farm and premises Timullen, in, &c., for and in consideration of the sum of l s. paid to the said Manning before the signing of these presents. The said James Saul agreeing on his part, from and after the 25th March last, to pay unto the landlord of said premises the rent reserved in the lease thereof, granted by the late R. Whaley to the late George Manning, and also all taxes, poor-rate, and county cess due thereon from time to time. The said James Saul to be entitled to receive all sums due for the grazing (1) Before O'BRIEN, Horns, and GIBBON, VOL. XXVI.] Q. B. & EX. DIVISIONS. 641 of cattle now taken in on said lands from the 25th March last, all sums pre- Q. B. Div. vionsly due to be the property of the said Manning. 1890. In witness whereof the said parties have hereunto signed their names. MANNING . V A. MANNING. SAUL. JAMES SA17L. Witnesses present-DANIEL Jort-NsoN. B. MANNING. Paragraph 3 alleged that the defendant went into possession of said premises under said agreement, and so continued in possession for many years, but that the defendant did not pay the rent of said farm, whereby the plaintiffs, as executors of Archibold ManÂning, were compelled to, and did, pay same during defendant's said possession, amounting to the sum of £774 2s. Paragraph 4 (repeating paragraphs 2 and 3, to the words "for many years ") alleged that all conditions were fulfilled, things happened, and times elapsed, necessary to entitle said Archibold Manning and his executors (the plaintiffs) to have said agreement performed, but that defendant did not perform same, whereby said Archibold Manning, and the plaintiffs as his executors, susÂtained great damage, and were put to great expense, and had to pay large sums of money in respect of said rent, to the loss and damage of plaintiffs, as such executors, in the sum of £1066 13s. 5d. Paragraph 5 claimed the said sum of £1066 13s. 5d. as money paid. for the defendant at his request, and money found to be due on an account stated. (Particulars annexed.) The statement of defence denied that the plaintiffs were the executors of Archibold Manning, and the making of the said agreeÂment, or that defendant was in possession of said premises for many years, and alleged that he was in possession for five years only, and that he paid the rent for three of the said five years, and denied that plaintiffs paid the said sum of £774 2s., or any part thereof, in respect of rent, during defendant's occupation. Paragraph 4 denied that the plaintiffs were compelled to pay said rent, or that it was by reason of defendant's non-performance of said agreement that the plaintiffs were compelled to pay any sum, or to sustain any loss or damage. Paragraph 5, as a further defence to paragraphs 2, 3, and 4 of the claim, alleged that the said Archibold Manning induced 3 B 2 Q. B. Div. the defendant to enter into said agreement, and into possession of 1890. said premises, by promising and representing to the defendant MANNING that he could and would, within a reasonable time, assign the v. Slat. interest in said lease to the defendant; and the defendant entered into said agreement in consideration that the said Manning would effectually assign to him the said lease in manner aforesaid ; and the defendant said that the said Archibold Manning wholly failed to, and did not, and could not, assign the said lease to him. Paragraph 6. As a separate defence to said 2nd, 3rd, and 4th paragraphs of the claim, the defendant said that it was a term of said agreement that the said Manning should assign his interest in said...