Wright v Tracey
| Jurisdiction | England & Wales |
| Judgment Date | 21 April 1874 |
| Date | 21 April 1874 |
| Court | Court of Criminal Appeal |
Com. Pleas.
Before MONAHAN, C. J., and MORRIS and LAWSON, JJ.
Lyne v. StevensonENR 6 Sc. 447.
Wright v. Johnson Sid. 440.
Westmeath v. HoggINTL 3 I. L. R. 27.
Kemble v. FarrenENRELR 5 Bing. 141 [See Thompson v. Hudson, L. R, 4 H. L. 30, per Lord Westbury.]
Boys v. Ancell 7 St. 354.
Davies v. PentonENR 5 B. N. C. 396.
Glsworthy v. StruttENR 1 Exch. 659.
Betts v. BurchENR 4 H. & N. 506.
French v. MaccaleUNK 2 D. & War. 269.
Burne v. Madden Ll. & G. temp. Pl. 493.
Hinton v. SparkesELR L. R. 3 C. P. 161.
Reynolds v. BridgeENR 6 E. & B. 528.
Oxley v. JamesENR 13 M. & W. 209.
Hull v. WoodENR 14 M. & W. 682.
Kemble v. FarrenENR 6 Bing. 141.
Green v. PriceENR 13 M. & W. 701.
Farrant v. OlmiusENR 3 B. & Al. 692.
Smith v. RyanUNK 9 Ir. L. R. 235.
Tenancy for a year certain — Contract — Notice to quit — Additional rent — Penalty — Liquidated damages.
134 THE IRISH REPORTS. {I. R. WRIGHT v. TRACEY (1). SA T11 v. SAME. Tenancy for a year certain-Contract-Notice to quit-Additional rent Penalty-Liquidated damages. 1. By a contract in writing, entered into after the passing of " The LandÂlord and Tenant Act, 1870," lands were let " for the term of one year certain, to commence on the 25th of March, 1871, and to end on the 25th of March,1872," and the tenant agreed to deliver up the lands "in good repair, &c., on said 25th day of March,R72 1_ _ :"-Held (per MORRIS and LAWSON, JJ diss. MONAHAN, C. J.), that section 69 of that Act (2) did not apply, and that the tenant was not entitled to notice to quit. 2. the tenant agreed, in case of breach of " all or any" of the conditions contained in the contract, to pay an " additional or penal rent," to be recovered " by distress or otherwise" as the reserved rent was recoverable by law " as between landlord and tenant :"-Held, that the additional rent was not a " penalty." Smith v. Ryan (9 Ir. L. R. 235) followed. THE first of these cases was an ejectment on the title for the lands of Ballynagran, tried before Fitzgerald, J., at the Wicklow Summer Assizes, 1872 ; when it appeared that the Defendant held the lands from the Plaintiff under the following agreeÂment :- "Memorandum of an agreement made the 8th day of March, in the year 1871, between Francis Richard Wright of the one part, and Morgan Tracey of the other part. The said F. R. Wright doth set unto the said M. Tracey the grass of part of the lands of Ballynagran and part of the lands of Ballyflanagan, con (1) Before MONAHAN, C. J., and MORRIS and LiacsoN, JJ. (2) 33 & 34 Vict. c. 46, s. 69.-"Where any tenancy at will, or less than a tenancy from year to year, is created by a landlord after the passÂing of this Act (1st of August, 1870), the tenant under such tenancy shall on quitting his holding be entitled to notice to quit and compensation in the same manner in all respects as if he had been a tenant from year to year : provided that this section shall not apply to any ,letting or contract for the letting of land made and entered into bona fide for the temporary conÂvenience or to meet a temporary necessity either of the landlord or tenant." VOL. VII.] COMMON LAW SERIES. 135 taining in the whole fifty acres late Irish plantation measure, or thereabouts, be Com. Pleas. the same more or less, together with the use of the dwelling-house, out-offices 1873. and all appurtenances thereunto belonging, as a temporary convenience to such WRIGHT letting, all which premises are now in the possession or occupation of the said v. Morgan Tracey ; and it is hereby agreed between said parties that this letting is TRACEY, and is. to be solely as a pasture farm, and for a dairy and dairy accommodation, and for the term of one year certain, to commence on the 25th day of March next, 1871, and to end on the 25th day of March, 1872. The rent thereof is to be the sum of £200 sterling, payable to said F. R. Wright, his executors, adÂministrators, or assigns, by four equal quarterly payments on the following days respectively, that is to say-on the 25th day of June next, on the 25th day of September next, on the 25th day of December next, and on the 25th day of March, 1872: for the payment of which sums the said M. Tracey and William Murphy have of this date passed their joint and several bills or promissory notes, payable on the said respective days above mentioned . . . . The said M. Tracey is to keep all fences in the same state of repair as they are at present, as also the churning machine, and all gates and fixtures on said premises, together with the dwelling-house and out offices in tenantable repair, order, and condition, and to deliver up same in like good repair, order, and condition on said 25th day March, 1872 ..... The said M. Tracey further undertakes not to let, underlet, assign or part with the possession of any part of said lands or premises, nor let same or I any part thereof for conacre or cropping ; and in case the said M. Tracey shall 3 not fulfil or shall commit a breach of all or any of the conditions or agreements herein contained, then and in such case the said M. Tracey shall pay unto the said F. R. Wright, his executors, administrators, or assigns, the additional or penal rent or sum of £200 sterling, over and above the said rent or sum of £200 hereinbefore mentioned, which additional or penal rent is to be recovered by disÂtress or otherwise, as the said rent hereinbefore mentioned is now recoverable by law as between landlord and tenant." The Plaintiff, in December, 1871, gave notice to the DefendÂant that he should be prepared to give up possession on the 25th of March, 1872, but the Defendant refused to give up possession though it was demanded on the 25th of March and on the 1st of April, 1872 ; and the Plaintiff thereupon brought this ejectment, claiming title from the 26th of March, 1872. The Plaintiff having made the usual proofs, the Defendant's counsel contended that the Plaintiff should be nonsuited, upon the ground that the DefendÂant was entitled to a notice to quit under section 69 of " The Landlord and Tenant Act, 1870." This the learned Judge refused to do, and directed a verdict, reserving liberty to the Defendant 136 THE IRISH REPORTS. Com. Pleas. to move to change it into a verdict for him ; and a conditional 1872. order was obtained pursuant-to the leave reserved. In the second action, the plaint contained three counts :- (1) for recovery of the additional or penal rent of £400 reserved by the agreement ; (2), for damages for the breach of the agreeÂment by the Defendant's refusal to give up possession ; (3), for trespass. As a defence to the first count, the Defendant pleaded that the additional rent was a penalty ; and that the Plaintiff after the 25th day of March, 1872, received from the Defendant the sum of £50, the quarter's rent which became due on the 25th day of March, 1872, while the Defendant was in possession, and thereby waived the penalty : to the second count the Defendant demurred, on the ground that the effect of the agreement was not that the penalty of £200 was payable upon the refusal of the Defendant to give up possession, but only conditionally upon his not doing so in a particular manner, i. e. in the state of repair in the agreement mentioned ; and that the stipulation had reference, not to the time, but to the manner in which the Defendant should leave the premises : and as to the 3rd count, the Defendant denied that the lands were the lands of the Plaintiff. Issues were joined on the lit and 3rd pleas, and tried before Fitzgerald, J., at the Wicklow Summer Assizes, 1872. The Plaintiff having proved the agreement, and given evidence of certain special damage alleged in the 2nd count, Counsel for the Defendant asked the learned Judge to direct a verdict for the De-. fendant on the 3rd count, on the ground that, no notice to quit havÂing been served, the Defendant was entitled to remain in possession of the lands. To this the learned Judge declined to accede. The Defendant then proved, in support of his plea to the 1st count, that the Defendant had, contemporaneously with the execution of the agreement, given the Plaintiff as security for the rent four promissory notes, each for £50, the last of which was discounted by the Plaintiff at a bank on the 2nd of January, 1872, and was not paid by the Defendant until the 28th of March, 1872. Counsel for the Defendant contended that these facts established the truth of the plea to the first count ; but the learned Judge VOL. VII.] COMMON LAW SERIES. 137 held otherwise, directed a verdict for the Plaintiff on all the counts. cow Peas. The jury found a verdict for the Plaintiff for £200 on the first 1872. count; assessed contingent damages on the second at £50 ; and WRI GHT damages on the third at 6d. The learned Judge having respited TRACEr. execution, a conditional order was obtained by the Defendant to set aside the verdict and for a new trial, on the ground of misÂdirection ; against which the Plaintiff showed cause. The demurrer to the second count came on for argument at the same time as the two conditional orders. Short (with him Hemphill, Q. C.), in support of the demurrer to the first count, cited Lyne v. Stevenson (1) ; Com. Dig., tit. Pleader, E, 47 ; Wright v. Johnson (2) ; Westmeath v. Hogg (3). Armstrong, Serjt. (with him Gibson, Q. C., and David Lynch), contra. Cur. adv. ea. Armstrong, So:ft. (with him Gibson, Q. C., and David Lynch), showed cause against both conditional orders. The Defendant was bound to give up possession on the 25th of May, 1872, without being served with notice to quit. The tenancy for a year certain was not less than a tenancy from year to year : Litt. sec. 67, and, therefore, it is not governed by the 69th section of the Land Act. As to the verdict on the first count in the second action, the additional rent was reserved by way of liquidated damages. Where the agreement contains, as in this case, several...
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