Wilson v Burne

• Jurisdiction: Ireland
• Judgment Date: 04 February 1889
• Date: 04 February 1889
• Docket Number: (1888 — G. No. 852.)
• Court: High Court

Q. B. Div.

Appeal.

In the Queen's Bench Division, before O'BRIEN, JOHNSON, and GIBSON, JJ.

(1888 — G. No. 852.)

WILSON

and

BURNE

Cahill v. KearneyUNK Ir. Rep. 2 C. L. 498.

Hildige v. O'FarrellUNK 8 L. R. Ir. 158.

Carew v. Christopher Ibid. 252; on appeal—10 L. R. Ir. 38.

Carlin v. DohertyDLTR 15 Ir. L. T. R. 117.

O'Brien v. Hartley Ibid. 31.

Trant v. Irwin 8 Ir. Jur. (N. S.) 309.

Sheridan v. Dawson 1 Jones' Rep. 256.

Whitton v. HanlonUNK 16 L. R. Ir. 137.

Beasley v. Darcy 2 Sch. & Lef. 403, n. b.

O'Mahony v. Dickson Ibid. 400.

Domvile v. WardUNK 16 Ir. C. L. R. 381.

Neale v. MackensieENR 1 M. & W. 747.

Delap v. LeonardUNK 5 Ir. L. R. 287.

Whitton v. Hanlon 16 L. R IR. 137.

Upton v. TownendENR 17 C. B. 30.

Page v. Parr Styles, 432.

Timbrell v. Bullock Styles, 446.

Cibel and Hill's Case 1 Leon, No. cxlix., 110.

Timbrell v. Bullock Styles, 446, 2 Furl. L. & T. (1st ed.), p. 867.

Upton v. TownendENR 17 C. B. 30, at p. 64.

Malone v. GeraghtyIR 5 Ir. Eq. 549, 565.

(Lessee Kenmare v. supple V. & S. 1.

Lombard v. KennedyUNK 21 L. R. Ir. 201.

Butler v. Burke 1 Dr. & W. 380.

Brinkley v. Donoghue 11 Ir. Jur. (N. S.) 96.

Denby v. MooreENR 1 B. & Ald. 123.

Skyring v. GreenwoodENR 4 B. & C. 281.

Malone v. GeraghtyUNK 5 Ir. Eq. Rep. at p. 557.

Sheridan v. Dawson 1 Jones' Reports, 256.

Kenmare v. Supply Ver. & Ser. 1.

Jones v. Cuthbert Ibid. 505.

Lessee of Coyne v. Smith Batty, 71 (Easter, 1827).

Sheridan v. Dawson 1 Jones' Reports, 256 (1835).

Malone v. GeraghtyUNK 5 Ir. Eq. Rep. 549, at p. 551; 3 Dr. & War. 239.

Russell v. MooreUNK 8 L. R. Ir. 318.

Hall v. FlanaganUNK Ir. R. 11 C. L. 470.

Caulfield v. WalshUNK Ir. R. 2 C. L. 492.

Listowel v. KellyUNK 17 Ir. L. T. 285.

Lombard v. KennedyUNK 21 L. R. Ir. 201.

Timbrell v. Bullock Styles, 446.

Landlord and tenant — Action to recover possession for non-payment of rent — Possession of landlord under judgment and writ of possession — Payment of rent and restitution of tenant to possession without claiming account of mesne profits — Possession of landlord pleaded as defence to subsequent ejectment for non-payment of rent (a) by alleging suspension of rent during the period of his possession; (b) by claiming set-off of mesne profits.

14 LAW REPORTS (JRRT.AND). (L 8 L WILSON v. BURNE (1). (1888-G. No. 852.) Landlord and tenant-Action to recover possession for non-payment of rent-Possession of landlord under judgment and writ of possession-Payment of rent and restitution of tenant to possession without claiming account of mesne profits-Possession of landlord pleaded as defence to subsequent ejectment for non-payment of rent (a) by alleging suspension of rent during the period of his possession ; (b) by claiming set-of of mesne profits. The defendant, who held lands from the plaintiff, under a lease for an unÂexpired term, at a reserved rent of £205 yearly, was evicted for non-payment of a year's rent due up to the 25th March, 1887. The plaintiff went into possesÂsion, and so continued from 23rd August to 27th September in the same year, when the defendant paid to the plaintiff the year's rent, and was restored to posÂsession, no account for mesne profits being claimed. This transaction took place at the especial request of the defendant, to enable him to serve an originating notice to fix a fair rent before the 29th September. In a sabsment action by the plaintiff to recover possession for non-payment of a year's rent, due the 25th March, 1888, the defendant pleaded a set-off of the value of the profits received by the plaintiff while in possession, and which were assessed by the jury at the trial at £34, and the defendant's counsel called upon the Judge to direct a verdict for him, on the grounds-1st, that the rent was suspended - during-Me period the plaintiff was in possession ; 2ndly, that the set-off of £34 reduced the arrears below one year's rent. The Judge having refused to do so, and directed a verdict for the plaintiff for possession : Held, by the Queen's Bench Division and the Court of Appeal, that the direction was right. NEW TRILL MOTION. Action of ejectment to recover possession of the lands of CarÂrickslaney, in the county of Carlow, for non-payment of one year's rent, tried before Mr. Justice Johnson at Wicklow, during the Summer Assizes, 1888. The statement of claim averred the execution of a lease, dated (1) In the Queen's Bench Division, before O'Buzit, Imam, and Guam, JJ. Vol.. XXIV.] Q. B. & EX. DIVISIONS. 15 the 12th April, 1862, setting out its terms, also that said lease was Q. B. Div. subsisting, and the reversion thereon vested in the plaintiff ; that 1888. defendant was in possession of the lands thereby demised, and that Wusox v. £205-one year's rent ending the 25th March, 1888, was due BUSSE. to the plaintiff thereunder-and also claimed possession of said lands. The defence was-firstly, an eviction of the defendant from the lands by the plaintiff, and being kept out of possession during the accrual of one half of the year's rent claimed; and, secondly, that the defendant was willing to set off a sum of £205, the value of the profits which he alleged the plaintiff had received out of the lands while in possession thereof from the 25th March, 1887 (as alleged), to the 30th September, 1887. The plaintiff joined issue on the first defence, and to the second defence replied that the alleged eviction was possession delivered to the plaintiff by the sheriff under an habere in an action of ejectment for one year's rent of said lands which had been redeemed by the defendant on the 26th SepÂtember, 1887, by payment of rent due up to March, 1887, and that the defendant had been thereupon restored to possession. The replication also traversed the set-off alleged in the second defence. The facts proved at the trial were as follows :-The defendant held the lands as tenant to the plaintiff, under lease dated 12th April, 1862, for lives, and an unexpired term of years, at a rent of £205 per annum, payable on the 25th March and 29th September in each year. The defendant had been previously evicted by the plaintiff under a judgment in a former action of ejectment for non-payment of a year's rent ; but the defendant had redeemed; by payment of the year's rent sued for in that action (which was up to and ending the 25th March, 1887). This payment was made to the plaintiff's solicitor upon the 26th September, 1887, and was partly by a cheque, which was accepted as cash after some demur, the defendant stating that he was anxious to redeem before the next gale-day, so as to get the full benefit of a notice to fix a fair rent which was about to be served. Upon the next day (the 27th September) the defendant was restored to possession, and the fair-rent notice was served, no claim being made by the defendant for an account for the period during which the plaintiff was in possession. 16 LAW REPORTS (IRELAND). [L. It. I. Q. B. Div. Upon the 13th July, 1888, the Land Commission made an 1888. order fixing the rent of the lands at £120 per annum, to be appli. Wnsow cable to the gale commencing 25th March, 1887, and those subseÂt.. Emma. quent thereto. Evidence as to the plaintiff's user of the lands during his possession tending to sustain the set-off was given by the defendant, and admitted, subject to objection, and the jury assessed such set-off at the value of £34. At the conclusion of defendant's case his counsel asked for a direction in their favour on the grounds-firstly, that one year's rent was not due, inasmuch as the rent was suspended while the - plaintiff was in possession of the lands under the habere issued in the former action of ejectment; and, secondly, that the said sum of £34, found by the jury, should be set off against the year's rent claimed, and therefore that one year's rent was not due. The Judge declined, but directed the jury to find a verdict for the plaintiff for possession of the lands, and that the rent was according to the lease £205, and according to the Sub-Commission Order £120 for one year ending 25th March, 1888. Judgment was then given for possession of the lands and costs of the action, with stay of execution until the 5th November, 1888, on condition that £86 (the difference between the rent at £120 and £34 the set-off) was paid to the plaintiff before the 1st September, 1888. A conditional order to have the verdict changed having been obtained David Lynch, Q.C., and J. H. Campbell, showed cause : The defendant cannot rely on a set-ofF as a defence to an action for non-payment of rent : Cahill v. Kearney (1) ; Hildige v. O'Farrell (2) ; Carew v. Christopher (3) ; Carlin v. Doherty (4) ; O'Brien v. Hartley (5), The procedure in redemption under the statute is stated in Trant v. Irwin (6). The lease is not evicted, where redemption takes place, and therefore there is no " hiatus " in the rent : Sheridan v. Dawson (7). (1) Ir. Rep. 2 C. L. 498. (2) 8 L. R. Ir. 158. (3) Ibid. 252; on appeal-10 L. R. Ir. 38. (4) 15 Ir. L. T. R. 117. (5) Ibid. 31. (6) 8 Ir. Jur. (N. S.) 309.1., (7) 1 Jones' Rep. 256. Vol.. XXIV ] Q. B. & EX. DIVISIONS. Serjeant Hemphill, Q.C., and B. P. Counsel, contra : The defendant is entitled to rely on his counterclaim : Whitton v. Hanlon (1). The tenant, when he redeems out of Court, is entitled to an account ; and in this case, if it is held that the landlord is not bound to account, he will get his rent in full, and over and above the full rent he will have made profits during his possession, which the jury have assessed at £34. The law as to redemption by tenant was not altered by Deasy's Act : that Act merely directed the mode of procedure. The defendant has not waived his right to an account : Beasley v. Darcy (2) ; 0' Nahony v. Dickson (3). [They also cited Domvile v. Ward (4) ; Neale v. Mackenzie (5) ; and Delap v. Leonard (6).] J. H. Campbell, in reply : Ejectment under a judgment is not a wrongful dispossession, and...