205 / 328
refused her leave. The widow then appealed to the
High Court.
•
•'/"".'' "
-
.::'."
Mr. Justice Megaw
allowed' her
appeal
in
Chambers on June 6th, 1962. He ordered that the
widow be permitted to intervene and that the infant
plaintiff should amend her Writ so that she claimed
in her own behalf and in that of the widow. The
defendants then appealed against this judgment to
the Court of Appeal.
Lord Denning, giving judgment, said that it was
clear that the writ itself was not a nullity and that
a dependant could bring an action by himself on
behalf of another; for although the endorsement
on the writ might be irregular, the irregularity could
be removed by a statement of claim setting out the
full particulars.
It would be most prejudicial if
when one dependant had been overlooked in an
action the proceedings could be held to be a nullity,
for this might enable a defendant to take advantage
of the Statute of Limitations against the actual
plaintiff in the action.
Irregularities did not of
themselves render the proceedings and the orders of
the Registrar null and void.
The Court ought to set aside the decision of the
District Registrar, remove the stay and make an
order in the form decided by Mr. Justice Megaw
protecting the infant's interest but permitting the
widow to claim. He would dismiss the appeal.
Lord Justice Danckwerts and Lord Justice Davies
agreed.
The appeal was dismissed with costs. Leave to
appeal to the House of Lords was refused.
(Cooper
v.
Williams and anor.
The Guardian,
February zyth, 1963.)
Effect of a notice to quit
The landlord of an agricultural holding, held by
a tenant on a tenancy from year to year under an
agreement made in 1943, served on the tenant a
valid notice to quit to expire on 2gth September,
1960. On September 8th, 1960, the landlord served
on the tenant a further notice to quit expiring on
September 29th, 1961. The tenant endorsed on the
second notice to quit the receipt thereof without
prejudice to further agreement and thereafter rent
was paid and accepted up to September 29th, 1961.
The landlord sought possession on that date and in
an action by him for possession it was held that his
claim failed on the grounds that the legal effect of
giving the second notice to quit had been to create
a new tenancy immediately after the tenancy sub
sisting under the 1943 agreement expired pursuant
to the first notice to quit and this new tenancy was
a tenancy for one year. The further grounds were
that the second notice to quit was ineffective to
determine the new tenancy because it had been
given before the commencement thereof.
It was
stated in the course of the judgment that a notice to
quit is a notice given by an existing landlord to -an
existing tenant and if that view be right a person
cannot give a valid notice to quit before he is
become a landlord and the recipient of his notice
has become the tenant, or before legal relations
exist between them which otherwise permit of such
a notice (Lower
v.
Sorrell, 1962 All England
Reports, page 1074).
Note.—
It is quite probable that the above case
would not be followed in this country if the occasion
arose due to the decision of the Irish Court of
Appeal in the case of Lord Inchiquin
v.
Lyons
XX L.R. Ir. 474).
In that case a notice to quit was served and before
the expiry date an agreement was reached between
the landlord and the tenant for an increase in the
rent. The notice to quit was accordingly not acted
upon and some years later the landlord served a new
notice to quit and sought possession of the lands.
It was held that a notice to quit which is, during
its currency, abandoned by the consent of both
parties and not acted on does not per se put an end
to the tenancy from year to year and consequently
would riot operate to create a new tenancy. In this
case the Irish Court of Appeal distinguished the
case of Tayleur
v.
Wilden (1868 L.R. 3 Exch. 303)
which was followed in the case above reported.
It is quite probable, therefore, that if an Irish court
had to decide on the facts above reported that it
would be held that the tacit abandonment or waiver
of the first notice to quit by the service and accept
ance of a new notice to quit did not operate to
determine the original tenancy on the expiry of
, the first notice to quit and that no new tenancy was
created.
CALENDAR AND LAW
DIRECTORY, 1963
The Society's CALENDAR AND LAW DIRECTORY
for 1963 is now on sale to members. Price io/~
(Postage, 1/3 extra.)
THE REGISTRY
Register A.
ENERGETIC young assistant at least 5 years qualified required
for provincial country practice. Good experience of con
veyancing and Probate essential.
Please reply, with full
particulars of experience to Box No.