1868. In re BROWN V. COCKING. Court Judge put the right construction on sect. 11 of stat. 30 & 31 Vict. c. 142., and I think he did. The meaning of the phrase "the rent payable in respect thereof" is a question of law. Does it mean the rent payable by the defendant to the plaintiff, or the rent payable to the defendant by his subtenants? Clearly it means the rent as between the litigant parties. In order to give the County Court jurisdiction neither the value nor the rent by the year must exceed 201. If the rent payable by the defendant to the plaintiff does not exceed 201., and the defendant gets more than 20%. by subletting, that may be a good element to determine the value; but the Judge was right in his construction as to the rent. Secondly. Is the decision of the County Court Judge on the question of value liable to be reviewed by prohibition? There was evidence on both sides, and it is impossible to say that he was not bound to form his decision on it, for if he was of opinion that the value exceeded 207. he had no jurisdiction to proceed. Then, there being evidence to justify his decision, it is conclusive. Prohibition does not issue unless the Judge of the County Court has done something which he was not authorized by the statute to do. HANNEN J. The phrase in stat 30 & 31 Vict. c. 142. s. 11., "the rent payable," means the rent payable between the litigant parties, not the rent payable by any sublessee to any sublessor. The argument that the statute intended to make the rent conclusive as to value cannot extend to the rent payable by a sublessee. If the rent as between the parties does not exceed 201. the next inquiry is as to the annual value of the premises. The fact that some other person is paying more rent than 207. is strong evidence that the annual value exceeds 20%., but is not conclusive. Whether the real value exceeded 201. or not the case equally serves to illustrate the discrepancy between rent and value, for the evidence was that the rent paid to the lessee was enhanced by the fact that some portions of the premises were let by him furnished, which would rebut the presumption that that rent represented the annual value. As to the other point, I have some hesitation in concurring in the judgment that we are absolutely concluded by the decision of the Judge on conflicting evidence; but in a case like the present, where the evidence is so nicely balanced, we ought not to interfere. Rule discharged, without costs (a). (a) See the next case. 1868. In re BROWN V. COCKING. In the matter of a Plaint between ELSTONE [Thursday, against Rose. 19 By The County Courts Act, 1867, 30 & 31 Vict. c. 142. s. 11., "All actions of ejectment where neither the value of the lands, &c., nor the rent payable in respect thereof, shall exceed the sum of 201. by the year,' may be brought in the County Court. In ejectment against the occupier by the assignee of a term subject to a ground rent, the County Court Judge was of opinion that by deducting the ground rent the annual value of the premises was reduced below 20%, and therefore he had jurisdiction. Held, 1. That the value intended in sect. 11 is the marketable value of which the rent paid by the tenant to the immediate landlord is, in the absence of exceptional circumstances, a fair criterion. 2. That, the County Court Judge having adopted an erroneous test of value, this Court would grant prohibition. November County Courts 30 & 31 Vict. c. 142. s. 11. Ejectment. 1868. In re ELSTONE V. ROSE. IN Trinity Term, Ryalls obtained a rule calling upon the Judge of the County Court of Yorkshire holden at Sheffield, and the plaintiff, to shew cause why a writ of prohibition should not issue to restrain the Judge of the County Court and the Registrar of the Court from issuing a warrant of execution for the recovery of the possession of certain tenements, and to prohibit other proceedings upon a judgment in a plaint in that Court. The action was brought to recover possession of a dwelling house, which was held under a building lease granted on the 17th November, 1864, for ninety-nine years, at a ground rent of 92. 17s. The plaintiff claimed as assignee of the term, which had been sold by the mortgagees of the lessee under a power of sale. The defendant had obtained possession under a contract for sale with the lessee after the mortgage. At the hearing it was objected that the Judge had no jurisdiction under The County Courts Act, 1867, 30 & 31 Vict. c. 142. s. 11., inasmuch as the value of the premises, as well as the rent payable in respect thereof, exceeded 201. by the year. There was conflicting evidence before him as to the value, but he decided that it did not exceed 20%, and gave judgment for the plaintiff. Upon a summons, before Smith J. at Chambers, for a prohibition, there were conflicting affidavits as to the grounds of the judgment of the County Court Judge, and, as he declined to give the reasons of it, a copy of a shorthand writer's notes was procured, which it was admitted were substantially correct. It appeared from them that the Judge held that according to the proper construction of sect. 11 the ground rent must be deducted from the gross annual value, and therefore he had jurisdiction. The learned Judge referred the matter to the Court. Oppenheim shewed cause. First. By the word "value" in stat. 30 & 31 Vict. c. 142. s. 11. is intended the value to the litigant parties; In re Brown v. Cocking (a). [Cockburn C. J. The value of property to the lessor is different from its value to the lessee. Lush J. The same property would have a different value according as the action was brought by the superior or by the immediate landlord. Blackburn J. The value of property is what it might be reasonably expected to fetch in the market. By stat. 6 & 7 W. 4. c. 96. s. 1. the rateable value of property is to be determined by the rent which a hypothetical tenant from year to year would give, subject to certain deductions.] If that estimate is made in the present case the ground rent is an outgoing which should be deducted. Secondly. This is not a case for prohibition, the Judge having decided upon conflicting evidence as to the value; Joseph v. Henry (b), The Guardians of the Lexden and Munster Union v. Southgate (c), In re Brown v. Cocking (a). [Cockburn C. J. Here was no dispute as to the facts.] Ryalls, in support of the rule, was not called upon. COCKBURN C. J. This rule must be made absolute. 1868. In ra ELSTONE V. ROSE. 1868. In re ELSTONE V. ROSE. The first point is whether, in ascertaining the annual value of a house or premises so as to give or exclude the jurisdiction of the County Court Judge to try an action of ejectment under stat. 30 & 31 Vict. c. 142. s. 11., the amount payable as ground rent to the superior landlord is to be deducted from the rent paid by the tenant to his immediate landlord. The Judge of the County Court was of opinion that, irrespective of the ground rent, the value was above the sum which limits the jurisdiction of that Court, but by deducting the ground rent the value was reduced below that sum. Sect. 11 has left the meaning of the word "value" uncertain. When a ground rent is to be paid there must be a difference between the value to the landlord and the value to the tenant. It might be worth while for the tenant to pay a rent of 2001. a year for a house in respect of which a ground rent of 207. was payable, whereas the value of the house to the landlord must be taken as reduced to 180Z.. What criterion of value are we to adopt? The Legislature have dealt with the question in a case of not dissimilar character to the present. The test applied by stat. 6 & 7 W. 4. c. 96. to ascertain the value of houses and land for the purpose of assessing them to the poor rate is the rent at which they might reasonably be expected to let from year to year; that is a parliamentary exposition of rateable value, and, reasoning by analogy, we may say that the marketable value of the property is that intended by stat. 30 & 31 Vict. c. 142. s. 11.; and of that the rent paid by the tenant to his immediate landlord is, in the absence of exceptional circumstances, the best criterion. Therefore the County Court Judge was wrong. |