Sarah Cowell, Landlord; John Buchanan, Tenant

• Jurisdiction: Ireland
• Court: Land Commission (Ireland)
• Judgment Date: 11 January 1892
• Date: 11 January 1892

Land Com.

Before BEWLEY, J., and FITZ GERALD, Commissioner

SARAH COWELL,

LANDLORD;

JOHN BUCHANAN,

TENANT

Flannery v. NolanUNK 20 L. R. Ir. 537.

Kennedy v. EssexUNK 28 L. R. Ir. 586.

Jackson v. M'MasterUNK 28 L. R. Ir. 176.

Keating v. BoltonUNK 22 L. R. Ir. 143.

Flannery v. NolanUNK 20 L. R. Ir. 537, 540.

Jackson v. M'MasterUNKUNK 24 Ir. L. T. 36; 28 L. R. Ir. 176.

Flannery v. NolanUNK 20 L. R. Ir. 537, 540.

Application for redemption of rent Bonafide occupation Assignee of reversion of part of lands.

Q. B. & EX. DIVISIONS. INA . XXX.] 375 . tithe renteharge did not exist, and the then payments of tithe, or Ex. Div tithe composition, did not answer the description within the section, 1892. RLaR HA I have last referred to. But by a subsequent Act of the same v. session, renteharge was substituted for tithe, and such renteharge DARNLEY. is plainly " rent " within 1 & 2 Viet. c. 56, s. 124, and therefore Polies, C.B. within sect. 233 of the Public Health Act of 1878. I desire to state that it is only at the request of both Parties, and in consequence of the amount at stake being so small, that we have consented to decide this question on motion. Our usual practice, and one to which, save in very special cases, we shall adhere, is not to entertain a motion for judgment the right to which involves, as it does here, a substantial question of law. ANDREWS and MURPHY, JJ., concurred. .Motion refused. Solicitors for the plaintiff : T. P. Reade. Solicitor for the defendant : Moore, Kelly, 85 Lloyd. J. P. B. SARAH COWELL, LANDLORD ; JOHN BUCHANAN, Land Cont. TENANT (1). 1891. Dec. 8. Redemption of Rent (Ireland) Act, 1891 (54 4 55 Vict. c. 57, ss. 1, 3)-Land Law (Ireland) Act, 1881 (44 4 45 Vict. a. 49, s. 57)-Application for redemption of rent-Bona fide occupation-Assignee of reversion of part of lands. If a landlord makes a lease of lands, partly in his own possession, and partly in the hands of a yearly tenant, the lessee of the entire lands cannot be deemed in occupation of the part in the hands of the yearly tenant, and thereÂÂfore is not in bona fide occupation of the holding, so as to entitle him to the benefits of the Redemption of Rent (Ireland) Act, 1891. Dictum of Fitz Gibbon, L. J., in Flannery v. Nolan (20 L. R. Ir. 540), approved. APPLICATION by the landlord to set aside an originating notice by the tenant under the Redemption of Rent (Ireland) Act, 1891. The facts of the case are fully stated in the judgment of Bewley, J. (1) Before BEWLEY, J., and Fizz GERALD, Commissioner. 1892. Jan. 11. LAW REPORTS (IRELAND). [L. IL I. The Mac Dermot, Q.C., and R. E. Meredith, in support of the application :- The applicant is admittedly not in possession of the entire of the lands comprised in the lease of 1867, for portion is in possession of sub-tenants, and this being so, he is not in bona fide occupation of his holding. There was no subletting here by the lessee with the consent of the lessor, as the sublettings existed before the lease was made, and the lessee only acquired the reversion in the lands sublet. In Flannery v. Nolan (1) Fitz Gibbon, L. J., says : " Acquiring a reÂÂversion is not subletting, and he was never in occupation of that part of the holding." That was, no doubt, a dictum only, as the case was decided on the character of the holding. In Kennedy v. Essex (2) the same question arose, but was not decided (see the judgment of Fitz Gibbon, L.J., at p. 591). In Jackson v. IP Master (3) the same point was raised by counsel in argument, but not decided. Keating v. Bolton (4) is not adverse to this view, as the question was not argued there. [BEWLEY, J.: I tried to use that case in Jackson v. 21' Master (3), in which I was counsel, but the Court of Appeal said that no such question was raised in Keating v. Bolton (4), which was decided on the question of active consent.] If the tenant is not in actual occupation of the entire holding, the onus lies on him to bring himself within the Act ; here some of the sub-tenants have actually got fair rents fixed. Dane, for the tenant : Section 57 of the Act of 1881 applies. The landlord had knowledge of the sublettings, and must be taken to have consented to them. In Jackson v. 11P Master (3) Fitz Gibbon, L. J., at p. 184, says that his observation in Flannery v. Nolan (1) was merely a dictum. [BEWLEY, J.: Here the landlord had only knowledge that there were sub-tenants of his on the...