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sion, he having paid all the poor-rates The judgment of the Court (2) was and taxes become payable by him before (on Feb. 9) delivered by a certain day, and in Rogers v. Lewis (1) BRETT, J.-In this case Thomas Moger it was held that, if he paid, it was suffi- claimed to have his name inserted in the cient, and that it was not necessary that he list of voters for the city and borough of should be rated. Then came 30 & 31 Vict. Bath. His name appeared upon the c. 102, giving by s. 3 a qualification re- list of claimants as an occupier of a house, quiring rating, and by s. 26 allowing 7, Taylor's Court, in imniediate succesdifferent premises occupied in immediate sion to his occupation of a house, 13 Parasuccession to have the same effect in dise Street. It was proved that the qualifying “as continued occupation of claimant had occupied 13 Paradise Street the same premises in the manner herein for a long time previous to and up to provided." Either this last section refers July, 1871, at a rent of 6l. per annum, only to the occupation, so that if the occu- and that he was duly rated to all poorpation of these premises satisfios s. 3, it is rates made during the time of such occusufficient; or at least s. 28 of the pre- pation, and had paid all rates payable by vious Act is incorporated (for by s. 59 of him in respect of the premises during the latter Act, the two Acts are to be con- such occupation. In February, 1871, the strued as one, as far as is consistent) claimant moved direct into and occupied and
consequently Rogers v. Lewis (1) 7 Taylor's Court, for which he agreed to applies, and payment of rates is enough. pay an annual rent of 81., his landlord And here there was payment, for pay- agreeing to pay the rates.
A poor-rate ment by the landlord was payment by the was made in April, 1871, in which the tenant; and even if this be not so, the claimant's name did not apear; he did point as to non-payment was not taken. not claim to be rated ; he was not entitled
Gurst, for the respondent. The fran- to the benefit of s. 19 of the Poor Rate chise claimed is founded on the occupa
Assessment and Collection Act, 1869 ; tion qualification in s. 3 of the new Act, but all rates payable in respect of 7 Tayand the meaning of s. 26, as applied to lor's Court were, previous to the 20th of the present case, is that the conditions of July, 1871, paid by his landlord. The the
Occupation franchise given by s. 3, revising barrister disallowed the claim. must be fulfilled as to each house (except- It was contended on behalf of the claiming, of course, the duration of occupation ant that this decision was erroneous; that for twelve months); and therefore, as one it was not necessary that the claimant of these conditions is that there should be should be rated in respect of the second rating, payment alone is not sufficient. house, if he paid all rates payable in reAs respects what has been said as to the spect of it; and that he had, by the hands old Act, and the case of Rogers v. Lewis of his landlord, paid all such rates. It (1), in the first place, the reasoning used was contended on behalf of the responthere does not apply, as the Act in terms dent that, according to sections 3 and 26 provided that payment should be enough; of the Representation of the People Act, and in the second place, the section is not 1867, it was necessary, in order to entitle incorporated with the new Act, so as to
the claimant to be registered, that he touch s. 26, as the two incorporating sec
should not only have paid all rates paytions, ss. 56, 59, use the words, “but sub- able in respect of the second house held ject to the provisions of this Act,” and in immediate succession, but that he "so far as is consistent with the tenour should also have been rated to such rates; thereof;" and to thus incorporate it and further, that the claimant had not would be adverse to the provisions and paid in this case the rates payable in reinconsistent with the tenour of the new spect of the second house. As to the first
point, inasmuch as both houses occupied Cur. adv. vult. by the claimant were below the annual
value of 101., the question is, whether (1), 7 Com. B. Rep. N.S. 29 ; 6. c. 29 Law J.
(2) Willes, J.; Byles, J., and Brett, J.
Rop. (ə.s.) C.P. 85.
s. 26 of the Act of 1867 deprives the occupier of a house in immediate succession within the year, and which house is of a less value than 101. a year, of the privilege contained in the proviso to s. 28 of 2 Will. 4. c. 45, as interpreted in Rogers v. Lewis (1). According to that proviso, as interpreted by that case, it is suflicient. for such an occupier to have paid all rates due in respect of the second house, though he be not rated in respect of such house, if he has been rated in respect of and has paid all rates due in respect of the first house. Now, by s. 3 of the Act of 1867, the inhabitant occupier of a dwellinghouse, in order to entitle himself to be registered, must have occupied it, i. e., the one dwelling-house, for twelve months, &c.; and must have been rated in respect of it, and must have paid all rates payable in respect of it. Section 26 deals with one only of these conditions, namely, that of the occupation, and enacts that the occupation of different premises in immediate succession shall have the same effect as a continual occupation of the same premises. Then are added the words, "in the manner herein provided." These words might at first sight seem to refer to an occupation accompanied by a being rated and a payment of rates. But these conditions are not the manner of the occupation; they are other conditions required to be fulfilled, when the claimant has satisfied the condition as to occupation. These words seem to refer to the necessity of a separate as distinguished from a joint occupier. Section 26, therefore, does not interfere with any obligation or any privilege attaching to the questions of being rated and of the payment of rates. Those obligations and privileges are regulated by other enactments. By sections 3 and 26, if there were no other enactments applicable, it would seem that the occupier of two houses in immediate succession, claiming to be registered in virtue of the qualification contained in the Act of 1867, must have been rated, and must have paid the rates in respect of both houses. But by sections 56 and 59 of the Act of 1867, the proviso in 8. 28 of the 2 Will. 4. c. 45 is applicable to the case of houses occupied in immediate succession, according to the Act of
1867, unless it be inconsistent with s. 26 of the new Act. According to the interpretation we have given s. 26 of the new Act, with reference to s. 3 of the same, there is no inconsistency between it and the proviso in s. 28 of the old Act. It follows that the proviso is applicable to the cases of occupation in immediate succession under the new Act, and that in such cases the occupier may be registered, if he has been rated and has paid all rates in respect of the first house, and has paid all rates payable in respect of the second house, though he has not been rated in respect of it. The reason given in Rogers v. Lewis (1) for the distinction between the first and second houses is as applicable in the cases of successive occupation under the new as under the old Act.
The second point is, whether the claimant can be said to have paid the rates payable in respect of the second house. He has not paid them with his own hand. He has not been released from payment. Nor can he be deemed to have paid by virtue of the Poor Rate Amendment and Collection Act, 1869. The question is, whether, without recourse to that or any other statute, he can be said to have legally paid the rates. We are of opinion that it can properly be said that he has legally paid the rates. By virtue of the agreement between him and his landlord, the actual payment of the rates by the landlord in this case is a legal payment by the tenant-Cook v. Luckett (3).
We are of opinion in the result that the claimant was entitled to be registered, and that the decision of the revising barrister was wrong, and must be reversed, and the claimant's name must be inserted in the register.
Attorneys-Rogerson & Ford, agents for John Ricketts, Bath, for appellant; Maule & Robertson, Bath, for respondent.
(3) 2 Com B. Rep. 168; s. c. 15 Law J. Rep. (N.S.) C.P. 78.
proper time for
and asking for particulars; and that Nov. 15.
there was no reply but this action, com1872. COOK V. GUERRA.
menced on the 13th of March, 1868. A Feb. 9.
verdict was found for the plaintiff for the Landlord and Tenant-Payment of Rent
full amount, with leave to the defendant before due - Assignment of Reversion —
to move to enter a verdict for him, or
reduce the amount, and a rule nisi was Notice to Tenant—4 Anne, c. 16. 8. 10.
granted accordingly. The defendant, a tenant, prepaid his rent Montagu Chambers and Gibbons shewed to L., his landlord, who afterwards mort- cause.—The plaintiff is entitled to recover gaged his reversion to the plaintiff ; one B. the rent from the time of assignment, brought ejectment against the defendant as because when the lessor has assigned he being entitled under a mortgage previous to has no power to discharge the lessee when the
tenancy, but nothing came of it; the the proper time for payment comes ; plaintif wrote to the defendant saying B. no before the
payment comes longer had any title, and asking for the the advance payment is not a payment of rent ; the defendant answered, saying he did rent under the contract, but is a loan, and not understand the application, and asking this loan can only be converted into a for particulars; no reply was made, but payment of rent on the proper day, subsequently the action was brought for the because the lessor then is in a position rent -Held, that though the plaintiff could to discharge the lessee and give it the not recover rent prepaid and accruing due character of rent paid ; but if his power before his letter, yet that there was a suffi- be gone, the payment remains merely a cient notice within 4 Anne, c. 16. s. 10, and loan to him, the rent is unpaid, and the he was entitled recover rent paid before notice requisite under 4 Anne, c. 16. s. 10 but accruing due after the letter.
does not apply ; and the assignee of the
lessor is entitled to recover all prepaid rent This was an action to recover 1371. 10s.
accruing due after the assignment. And as two and a half year's rent, due Christ- the case of De Nicols v. Saunders (1) is mas, 1867.
not only consistent with but supports It appeared at the trial that by an this contention. Secondly, but at all agreement dated the 7th of July, 1864, events the rent acci
cerning due after the one Lamb let a house to the defendant 1st of November, 1866, is recoverable, as at a rent of 551. per annum (from the 24th there was a proper notice under 4 Anne, of June then past), payable quarterly,
c. 16. s. 10. finally, however, agreed to be 501. ; that [WILLES, J.-The money paid which on the 18th of July, 1864, the defendant was due before the alleged notice at least paid Lamb 1501., and on the 3rd of March, cannot be recovered.] 1865, paid him 701. as rent in advance; W. Paterson, in support of the rule.
on the 15th of September, 1865, That being so, the only question is as to Lamb mortgaged the house to the plaintiff
, the sufficiency of the notice. It is suband in August, 1866, gave him a further mitted that there was no such notice that mortgage; that in May, 1866, one Ban- the reversion had been assigned to the
who claimed under a mortgage plaintiff as is required by the statute, andon made by Lamb in 1858, by Carpenter, his the contrary the natural conclusion would attorney, brought ejectment against the be that the plaintiff was assignee of Bandefendant, but the matter was not pressed; chini, and only entitled, if anything, to
on the 1st of November, 1866, the eject, not to recover the rent. That this plaintiff wrote to the defendant saying was really the impression is shewn by a Carpenter had written to say his client subsequent letter ; further, though the de.
longer entitled to the rentfendant writes to say he does not underand requesting payment thereof; that on
stand and asks for an explanation, no the 2nd of November, 1966, the defendant's solicitors answered, saying they
answer is given, and no steps are taken till and he did not understand the application, (1) 39 Law J. Rep. (N.s.) C.P. 297.
New SERIES, 41.-C.P.
two years afterwards, when the action is Brett, J.—This case was argued last brought. And it is to be observed that Michaelmas Term before my brothers section 10 is in truth a proviso on section Willes, Keating, Collier and myself, and 9, which abolished attornments, as to I now read the judgment of my brothers which it is said in Woodfall's Landlord Willes and Keating, and myself (2). and Tenant, 8th edit. 208, “ Payment of In this case the plaintiff sought to rent by a tenant to his landlord after the recover from the defendant the sum of title of the latter had expired, and after 1371. 108., as for rent for two and a-balf the tenant had received notice of an years due at Christmas, 1867. At the trial adverse claim, does not amount to an a verdict was by consent taken for the acknowledgement of title in the landlord plaintiff for 1371. 108., with leave to the or to a virtual attornment, unless at the defendant to move to set such verdict aside time of such payment the tenant heard the and enter a verdict for the defendant, or to precise nature of the adverse claim or how reduce the amount recovered by such a the landlord's title had expired."
sum as the Court should direct. The WILLES, J.—There can be no doubt
Court was to have power to draw in
ferences of fact. A rule nisi, according that, assuming the letter of the 1st of
to the terms of the leave reserved, having November, 1866, was a notice within 4 Anne, c. 16, it only gave the plaintiff
been obtained, the case was argued before
us. The facts as stated to the Court were, a right to recover from the time of the
that on the 7th of July, 1864, a lease of notice, and did not entitle him to recover
the premises in question was granted by prepaid rent which accrued due before
one Lamb to the defendant for five years that time. For though payment before the day is only a loan and not payment finally agreed to be 501. a year.
at a rent at first arranged to be 551., but
Shortly of rent, yet as the rent becomes due the law applies it and it becomes payment of
after the lease, the defendant paid to
Lamb, as for rent in advance, 1501. and rent. This fully accords with what is laid down in De Nicols v. Saunders (1), the reversion in the premises by deed by
701. In September, 1865, Lamb conveyed and also with the following passage in Viner's Abr., Payment, I: “In debt
way of mortgage to the plaintiff for an
advance. In August, 1866, Lamb gave a upon a bond the condition was for pay
further mortgage to the plaintiff for a ment of a sum at a certain day and
further advance. place. The defendant pleaded payment
In May, 1866, one
Banchini claimed to recover possession of at the day and place according to the
the premises from the defendant, and by condition, and upon issue taken it was found that he paid it before the day and
one Carpenter, his attorney, brought an at another place, and the plaintiff accepted According to an affidavit made in the pre
action of ejectment against the defendant. it. And the defendant had judgment by the opinion of the whole Court, for pay
sent cause by the defendant, Banchini made
known to him the defendant and to his ment before the day is payment at the day.” We are all of opinion that such a
attorney, in May, 1866, that he claimed payment is within the statute of Anne,
as mortgagee by virtue of a mortgage and is not disturbed by a subsequent attorney to the action. It was not pressed,
from Lamb. The defendant appeared by notice, and therefore the verdict at all
and on the 1st of November, 1866, the events must be reduced to 621. 10s. But it is further said that there is no notice
plaintiff wrote to the defendant as fol.
lows: "Sir, Mr. Carpenter has written of a grant of the reversion within the statute ; this is a new point and requires to receive your rent; I therefore request
to say his clients are no longer entitled consideration. KEATING, J., BRETT, J., and Collier, J.,
that you will have the kindness to pay
the same here by Monday next." Signed, concurred.
“T. R. Cook.” The defendant thereupon Cur, adv. vult.
(2) Collier, J., had in the meantime ceased to The judgment of the Court was (on
bo a judge of this Court and become a judge of Feb. 9) delivered by
the Privy Council.
consulted his attorney, Mr. Walker, who on the 2nd of November, 1866, wrote to the plaintiff asking for information. None was given, and no further step was taken until the present action was brought. The defendant and his attorney made affidavits for the purpose of obtaining orders for interrogatories and inspection of documents. In the affidavit for the latter purpose, the defendant vouches a mortgage deed given by Lamb to Ban chini on the 27th of September, 1858. It was argued on behalf of the defendant, that no notice had been given to him of any conveyance of the reversion to the plaintiff, and consequently that he was protected by reason of his payments to Lamb without such notice, and by statute 4 Anne, c. 16. s. 10, against any claim by the plaintiff; that the want of notice distinguished this case from that of De Nicols v. Saunders (1); that at all events the verdict must be reduced to so much as would represent the rent payable after the 1st of November, 1866; that the payment in advance was good as against the plaintiff until notice was given. The Court acceded to the last contention, and took time to consider as to the former. It seems clear to us that if there was a sufficient notice given in November, 1866, the prepayment is not a payment of rent as against the plaintiff's claim for rent from and after such notice; and if there was not a sufficient notice, the plaintiff is not in this case entitled to recover at all; in such case the prepayment is good and covers the whole claim. The question therefore is whether there was or was not a sufficient notice given to the defendant by or on behalf of the plaintiff, that he, the plaintiff, was on the 1st of November, 1866, claiming the rent as grantee, by being mortgagee of the reversion. The question is not whether the letter gives such notice in terms, but whether from the letter and the circumstances, the Court ought to infer that the letter brought such knowledge to the mind of the defendant, or his attorney, or both. Now the defendant and his attorney knew that Banchini had claimed the premises as mortgagee from Lamb, and consequently they knew that Lamb was raising money by mortgaging the reversion; that
the claim made on behalf of the plaintiff, was not to dispossess the defendant, but only to be paid by him the rent; that such a claim could hardly be founded upon any other alleged right than one resulting from a grant of the reversion. Considering these propositions we are of opinion that there was evidence from which a jury ought properly to draw the inference that the letter, coupled with the circumstances known to the defendant and his attorney, did bring to the mind of one or both of them, that the plaintiff was claiming the rent as grantee by way of mortgage of the reversion, as in truth he was. We are therefore of opinion that there was sufficient notice, and that the plaintiff is entitled to recover so much of the rent claimed by him as would be due, if unpaid, from the 1st of November, 1866. The verdict must be reduced by all which exceeds that amount.
A patent agent is expected to know the law relating to the practice of getting patents.
Where, therefore, such agent who was employed to procure a patent, being not aware of the decision of the Lord Chancellor in Re Bates and Redgate (which makes it necessary, notwithstanding provisional specification has been filed, to take care that the patent is sealed before another patent for the same invention is obtained by a later applicant), delayed four months between filing the provisional specification and ap plying to have the patent sealed, whereby a subsequent applicant for a patent for the same invention was able to get his patent sealed first, and so prevent such agent from