Tennent and Others v Neil

• Jurisdiction: Ireland
• Judgment Date: 21 November 1870
• Date: 21 November 1870
• Court: Court of Exchequer Chamber (Ireland)

Exch. Cham.

Coram WHITESIDE, C. J., MONAHAN, C. J., O'BRIEN, FITZGERALD, GEORGE, MORRIS, and LAWSON, JJ.

TENNENT AND OTHERS

and

NEIL.

Gibson v. DoegENRUNK 2 H. & N. 615; 27 L. J. Ex. 37.

Little v. WingfieldUNK Per Hayes, J., 11 Ir. C. L. R. 68.

Eldridge v. Knott Cowp. 214.

Archbold v. ScullyENR 9 H. L. C. 360.

Lefroy v. WalshUNK 1 Ir. C. L. R. 311.

Lyon v. ReidENR 13 M. & W. 285.

Hilary v. Walker 12 Ves. 239.

Doe v. Prosser Cowp. 217.

Levitt v. WilsonENR 3 Bing. 115.

Doe and Hammond v. CookENR 6 Bing. 174.

Little v. WingfieldUNK 11 Ir. C. L. R. 63.

Fellows v. Clay 4 Q. B. 313.

Deeble v. LinehanUNK 12 Ir. C. L. R. 1.

Lefroy v. WalshUNK 1 Ir. C. L. R. 311.

Archibold v. ScullyENR 9 H. L. C. 360.

Mayor of Kingston v. Horner Cowp. 102.

Denton v. RichmondENR 1 Cr. & M. 734; 3 Tyr. 630.

Daly v. BloomfieldUNK 5 Ir. L. R. 65.

Jones v. GreenENR 3 y. & J. 298.

Gerard v. O'Reilly 3 Dr. & Warr. 414.

Keene v. DeardenENR 8 East, 248.

Daly v. BloomfieldUNK 5 Ir. L. R. 75.

Farrant v. OlmiusENR 3 B. & Al. 692.

Denton v. RichmondENR 1 Cr. & M. 734.

Bowers v. Nixon 12 Q. B. 558.

Jones v. GreenENR 3 Y. & J. 298.

Little v. WingfieldUNK 11 Ir. C. L. R. 75.

Green's Case Cr. Eliz. 3.

Croft v. LumleyENR 6 H. L. C. 720.

Darcy v. NichollENR 4 C. B. N. S. 379.

Ward v. DayENRENR 4 B. & S. 355; Ev. Ch. 5 B. & S. 354.

Lefroy v. WalshUNK 1 Ir. C. L. R. 311.

Sheppard v. AllenENR 3 Taunt. 78.

Gibson v. DoegENR 2 H. & N. 615.

Foley v. WilsonENR 1 East, 56.

Presumption Covenant Release Additional Rent Misdirection.

418 THE IRISH REPORTS. [I. R. (EXCHEQUER CHAMBER) ,(1). TENNENT AND OTHERS V. NEIL. Presumption-Covenant-Release-Additional Rent-Misdirection. An indenture of lease was made on the 28th of January, 1832, for a term of ninety-one years, reserving a rent, and containing a covenant by the lessee to execute certain specified improvements upon the demised premises on or before the 1st of May, 1834, or pay an additional rent. The original rent was reguÂÂlarly paid, and receipts given for it ; but the improvements, as specified in the covenant, were never made, while other and more expensive improvements were executed to the probable knowledge of the lessors; and the additional rent was never demanded or paid. In an action brought in 1869 to recover twelve and a half years arrears of the additional rent Held (reversing the decision of a majority in the Court of Exchequer), that it was not misdirection to instruct the jury, upon the issues raised, that they were at liberty, upon the above facts, to presume that a release of the covenant had been executed. A jury may be instructed that they are at liberty, upon evidence of long continued non-observance, to presume a release of a covenant, where conÂÂsistently with the evidence, the release to be presumed might have been exeÂÂcuted before the accrual of the breach complained of. APPEAL, by the Defendant, against an order of the Court of Exchequer, dated 17th of January, 1870, making absolute a conÂÂditional order for a new trial upon the ground of misdirection. Action brought for the recovery of a sum of 125, being for twelve and a half years' arrears of a rent, in the nature of a penal rent, alleged to be payable under a lease dated the 28th of January, 1832, from William Tennent to Edward Hagan. By that lease the lessor demised certain premises in the town of BelÂÂfast for a term of 91 years concurrent with three lives, it reserved a rent of 52 10s., payable half-yearly on the 1st of May and 1st of November, and by a provision not comprised in the reddendum it was (among several other matters) agreed that the lessee, his heirs, executors, administrators, or assigns " should and would, on VOL. V.] COMMON LAW SERIES. 419 or before the 1st of May, 1834, at his and their own costs and .Exch. Chain. charges, raise, erect, build, and finish with a good and substantial roof, the front house on said premises an additional story, and also shall and will, on or before the 1st of May, 1837, also at his and their costs and charges, raise, erect, build, and finish with a good and substantial roof, the store in the rere of said premises an addiÂÂtional story, or in default thereof to pay unto the said William Tennent, his heirs, executors, administrators, and assigns, in addiÂÂtion to the said yearly rent of 52 10s., the further annual rent of 10 sterling for and during the said term, said additional or penal rent to be payable and recoverable in the same manner as the said reserved rent of 52 10s. is hereby made recoverable." To a single count upon this covenant (in which the Plaintiffs claimed as assignees of the lessor, and charged the Defendant as assignee of the lessee) the Defendant put in three defences :-1. Traverse of the assignment of the reversion, on which no conÂÂtroversy arose ; 2. Release, by a lost deed, from the covenant for building, and from the penal rent reserved in the event of the breach therof ; 3. An equitable defence, founded upon an alleged agreement between the owner of the reversion and the owner of the lease, made after the breach of the covenant in not raising the front house within the specified time, and long before the DefenÂÂdant became assignee of the leasehold. This third defence stated that the store at the rere of the premises was of one story only and ruinous, and could not be raised an additional story without throwing down the whole; that the premises were then in the posÂÂsession of a sub-lessee ; and stating the agreement to have been that, in consideration of the sub-lessee throwing down the store and building a new one of three stories in place of the old one, with solid beams and pillars, the owner of the reversion would accept such new building in lieu of an exact performance of the covenant, and would discharge the owner of the lease, his executors, adÂÂministrators, and assigns from the covenant and all further liaÂÂbility in respect thereof; and from the rent reserved in the event of the breach thereof ; it then alleged performance of the agreeÂÂment on the part of the owner of the lease, and that this was accepted by the owner of the reversion in lieu of the complete performance of the covenant. 420 THE IRISH REPORTS. [I. R. Exch. Chum. The issues were founded on those defences,-and the ease was 1870. tried before LAWSON, J., at the Antrim'Spring Assizes, 1869. TENNENT At the trial, after proof of the lease, the Plaintiffs proved that NE William Tennent, the lessor, died in the year 1832, and that by NEIL. his will he devised property, including the premises in question, to five trustees, two of whom were the Plaintiffs on the record. On the part of the Defendant evidence was given to the folÂÂlowing effect : James Anderson, a builder, proved that the present store was built in 1836 or 1837 ; that previously there was an old bakeÂÂhouse on the site of the present store, with a light loft upon it ; that the old store was taken down and a new store was built upon the site of it, three stories high ; that he lodged in the front house in 1831 or 1832 ; that the front house had not been altered, except as to the shop front ; that the new store cost 400 or 500 ; and that it would cost about 250 to put a story on the front house. On cross-examination he stated that the old store was built with nine-inch brick, and that the walls of the present store were of fourteen-inch brick ; that it would not have been possible with safety to put an additional story on the old walls, and that if it were to be raised it should be entirely rebuilt. The Defendant was examined and produced the assignment to him, dated the 17th December, 1855, from the former owner of the leasehold, and proved that the penal rent was never demanded from him until three years previously. He stated that the store, which is of three stories, is higher than the house, which is two stories, with a sky-light. Another witness who occupied the store proved that it was three stories high. It appeared that the rent of 52 10s. was paid up to the 1st -of November, which appeared to be about the time the penal rent was first demanded, and no controversy existed in reference to the original rent. The Plaintiffs went into a rebutting case, and William Hartley, the agent, proved that he had received the rent since 1836 ; that he observed no change in the premises since 1836 ; and he said he believed the present store extended into ground not included in the lease. On his cross-examination, he said he did not remember the late house at all, but he never received the penal rent. VOL. V.] COMMON LAW SERIES. 421 Proof was then given by another witness that he had searched Exch. Cham. in the Registry for a deed of release affecting the premises, and found none. The learned Judge, as to the second issue (founded on the second defence), told the jury that, having regard to the receipt of the lesser rent for more than thirty years, and the other circumÂÂstances of the case, they were at liberty to presume that a deed of release was executed : and as to the third issue (on the third. deÂÂfence, alleging the agreement, and pleaded as an equitable deÂÂfence) he told the jury that, having regard to the evidence that the covenant could not be literally performed by raising the store, and that it had been rebuilt in a more expensive manner, they were at liberty to presume an equitable arrangement, by which the reÂÂbuilding of the store was accepted as a performance of the coveÂÂnant, and, if they so found, they should find on the third issue for Defendant. To these directions the Plaintiffs' counsel objected, contending that there was no evidence to establish either the second or third defences, and that the jury should be directed to find, on the issues as to both these defences, for the Plaintiffs. The jury found for the Defendant on the second and third issues. The Plaintiffs having obtained a conditional order for a new trial, upon the ground of...