Meares v Redmond

• Jurisdiction: Ireland
• Judgment Date: 16 June 1879
• Date: 16 June 1879
• Court: Exchequer Division (Ireland)

Ex. Div.

MEARES

and

REDMOND.

Troy v. Kirk Al. & Nap. Rep. 326.

Butler v. SmithUNK 16 Ir. C. L. R. 213.

Foley v. GallagherUNK 2 L. R. Ir. 35, 389.

Doody v. NolanUNKUNK Ir. R. 11 C. L. 23; and 2 L. R. Ir. 199.

Woodward v. GylesENR 2 Vern. 119.

French v. Macale 2 Dr. & War. 269.

Greenaway v. Adams 12 Ves. 395.

Gerrard v. O'Reilly 3 Dr. & War. 414.

Lord Ashtown v. WhiteUNK 11 Ir. L. R. 400.

Condon v. Haynes 9 Ir. C. L. R. App. 1.

Smith v. RyanUNK 9 Ir. L. R. 235.

Barret v. Blagrave 5 Ves. 555.

Ex parte Raymond Ir. R. 8 Eq. 231.

In re Quirke's EstateUNK 3 L. R. Ir. 23.

Moynehan v. HickeyUNK Ir. R. 10 C. L. 253.

Davis v. DavisUNK 4 Ir. L. R. 353.

Leonard v. TaylorUNKUNK Ir. R. 7 C. L. 207; Ir. R. 8 C. L. 300.

Coffey's EstateUNK 4 Ir. L. R. 359.

Davis v. Davis 2 Dr. & War. 269.

Lessee Davis v. DavisUNK 4 Ir. L. R. 353.

French v. Macale 2 Dr. & War. 269.

Landlord and tenant — Construction of lease — Covenant against alienation without consent — Covenant by landlord to accept reduced rent so long as the covenants on the part of the lessee are observed by the latter — Presumption as to release or waiver of covenant against alienation — 7 Geo. 4, c. 29, s. 3 — Void assignment of lease — Ratification by consent of lessor after verdict in ejectment against assignee — Mesne rates — Demand of possession.

VoL. IV.] Q. B., C. P., & EX. DIVISIONS. fullest consideration, it appears to me that, in the order we are about to make, we are doing nothing more than, under other forms, was formerly the settled practice. Upon non-compliance with an order it was competent to issue an attachment, and put the non-complying party into contempt. Being in contempt he could not move in the cause, save to set aside or purge his contempt. In substance, thereÂfore, the attachment order operated as a. stay of active proceedings by the party in contempt. It is true that the effect of the Debtors Act, 1872, is to prevent arrest under an attachment order, when the order which has been disobeyed is, as here, an order for the payment of money. But the Act is conversant only with the imprisonment of the debtor; it does affect the proceeding of Courts of Justice, -which denies to the party in contempt the privilege of proceeding with the suit. It is also to be observed, that by our present order we do no more than would have been effected by an Office Rule before the Judicature Act. Solicitor for the Plaintiff : Simmons. Solicitor for the Defendant : B. J. Jones. MEARES v. REDMOND. * Landlord and tenant-Construction of lease-Covenant against alienation without consent-Covenant by landlord to accept reduced rent so long as the covenants on the part of the lessee are observed by the latter-Presumption as to release or waiver of covenant against alienation-7 Geo. 4, c. 29, s. 3 -Void assignment of lease-Ratation by consent of lessor after verdict in ejectment against assignee-Mesne rates-Demand of possession. A lease for three lives, bearing date in 1829, contained, amongst other coveÂnants on the part of the lessee, a covenant not to alienate the demised premises, or any part thereof, without the consent of the landlord in writing endorsed on the lease ; and a covenant by the lessor to accept a reduced rent in case of obÂservance by the lessee of certain of the covenants, until default should be made by the lessee, his heirs or assigns, in alienating without consent, or in non-perÂformance of the covenants upon his part contained in the lease :- 534 LAW REPORTS (IRELAND). [L. It. I. Ex. Div. Held 1, that neither the covenant against alienation without consent, nor the subsequent covenant by the lessor to accept a reduced rent until breach, was a clause expressly authorising the lessee to assign, within the meaning of the 7 Geo. 4, c. 29, s. 3 ; and that an assignment without consent was void under the statute. Semble, if a penal rent had been reserved upon breach, the conÂstruction of the lease in this respect would not have been different (1). 2. That the Court could not presume a release of the covenant from other acts of alienation, where the question of such presumed release had not been raised. at the trial or left to the jury. Semble, the presumption, if any, would, be of consent to the particular acts only. 3. That a consent by the lessor to the assignment, after a verdict for the lessee's heir-at-law in an action for possession, even assuming that the conveyÂance was validated by such consent, would not entitle the assignee to judgment in the action; and that his only remedy was by a cross-ejectment. 4. That, notwithstanding the invalidity of the assignment, the heir-at-law of the lessee was not entitled to mesne rates until after possession demanded. EJECTMENT upon the title. The action was brought by the Plaintiff, who was one of the two co-heirs of one Gabriel If 'Clean, 1879. MEARES V. REDMOND. (1) 7 Geo. 4, c. 29, s. 3. " Where lands or tenements in Ireland shall be held by virtue of any lease or agreeÂment for a lease, which shall be exeÂcuted or entered into at any time after the 1st June, 1826, not containÂing a clause expressly authorizing and empowering the lessee or tenant to assign or sublet" (other than in the case of certain excepted leases), "it shall not be lawful for such lessee or tenant, his or their heirs, executors, administrators or assigns, to assign or sublet any such lands or tenements, or any part thereof, without the exÂpress consent of the lessor or contractÂing party in such lease or contract, his or their heirs, executors, adminisÂtrators or assigns, testified, where such assignment or subletting shall be by deed or written instrument, by his or their being party to and signing and sealing such deed or written instruÂment, or by his or their written inÂdorsement on such deed or instrument ratifying or confirming the same, orwhere such assignment or subletting shall not be by deed or written instruÂment, testified by his or their consent in writing; and every such assignment or subletting, and every lease, deed or instrument, or other agreement or proÂceeding, whereby such assignment or subletting shall be made without such consent as aforesaid, and testified as aforesaid, shall be and be deemed wholly void and invalid to all intents • and purposes whatsoever ; any law, statute or usage to the contrary in anywise notwithstanding, unless such consent shall be endorsed or executed. in writing as aforesaid ; and in any proceeding in law or equity relating to such assignment or subletting, the party so assigning or subletting, or the party to whom such assigning or subletting shall be made, or attempted to be made, shall not be entitled to avail himself of any constructive or parol waiver of the benefit of this Act by or on behalf of any such lessor or contracting party." Vol.. IV.) C. P., & EX. DIVISIONS. 535 to recover possession of certain lands which inter alia were demised Ex. Div. by Sir Capel Molyneux, Bart., by a lease dated the 14th Sep- 1879. tember, 1829, to Gabriel M'Clean and his heirs, for three lives (of MEARES which two, at the time of bringing the ejectment, were deceased), R at the yearly rent of £93, with certsin receiver's fees and duties. The lease contained covenants upon the part of the lessee to pay the rent ; to expend a sum (for which a blank was left in the lease) in building on the lands a good and substantial house of lime and stone; and a covenant in the following terms : "that he, the said Gabriel M'Clean, his heirs or assigns, shall not alienate, set, sell, or dispose of said demised premises, or any part thereof, -without the consent in writing, endorsed on the back of this...