The Gazette 1911-12

17

The Gazette of the Incorporated Law Society of Ireland.

JUNE, ign]

that, -in order' to a_void: payment of interest. after tender improperly rejected, the mort gagor must either pay the money into Court, if there was any proceeding in which that could be done, or keep the money ready, and either make no profit of it, or if he had made a profit— e.g., by getting interest from a banker—he must account for such profit to the mortgagee. (Reported The Times Law Reports, Vol. xxvii., p. 446).

and interest, which tender has been im properly refused, the mortgagor is liable to pay interest for a farther period of six months, j although he has been all along ready and willing to pay the principal. j It appeared that on December 9, 1909, the j defendant, the mortgagee, gave notice to the ' mortgagor's Solicitors to pay off the mort gage ; the notice was in the ordinary form, and would expire on March 9, 1910. Before the arrival of that date correspondence took place between the Solicitors of the parties with reference to the draft re-assignment and its execution, and in the result the matter was not completed on March 9. On March 16, 'however, the mortgagor and his solicitor attended at the office of the mortgagee's Solicitor and formally tendered the mortgage money and interest to date. The tender was not accepted, the mort gagee's Solicitor setting up the contention that as repayment was not made on March 9, 1910,the mortgagor was not entitled to pay off without giving a further six months' notice or paying six months' interest in lieu of such notice. As this was insisted upon on behalf of the mortgagee, the mortgagor, on May 18, 1910, took out an originating summons for redemption. On July 8 the common order was made. On January 27, 1911, the Master made his certificate, finding what was due upon the mortgage on March 16, 1910, and that a legal tender of the sum named was made on that date by the mortgagor and refused by the mortgagee,, and fixing February 27, 1911, as the time for payment at the Royal Courts of Justice. On January 31 the defendant took out a summons to-vary the certificate by adding to the sum found due by the Master a further six months' interest, and by reversing the finding of the Master that a legal tender had been made on March 16, 1910. This was the. application now before the Court, and it was arranged at the hearing that his Lordship should by his judgment finally dispose of the action. Mr. Justice Joyce held that where such a notice was given or demand made as in the present case, the mere failure to pay within or on the day of the expiration of the three months did not render the mortgagor liable to pay an additional six months' interest or anything of the kind. His Lordship also, held

COURT OF APPEAL (ENGLAND). (Before Cozens-Hardy, M.R. ; Buckley and

Kennedy, L.JJ.) West v. Gwynne.

May 10, 1911.— Landlord and Tenant—Lease —Licence to assign—Exaction of fine—Con veyancing and Law of Property Act, 1892. THIS was an appeal from a decision of Mr. Justice Joyce. The question for decision related to the operation of Section 3 of the Conveyancing Act, 1892, viz.: whether it applies to leases executed before as well as after the passing of the Act. The plaintiffs were assignees of certain leasehold premises demised by the defendant by lease dated July 31, 1874, for a term of 94-J years from March 25, 1874-. The lease contained a covenant by the lessees against assigning or sub-letting without the written consent of the defendant, and also the usual proviso for re-entry on breach of any of the lessees' covenants and the usual lessor's covenant for quiet enjoyment. The plaintiffs had applied to the defendant for his consent to a proposed underlease for 21 years of part of the demised premises, but the defendant was only prepared to grant a licence to underlet on condition that he should receive for himself one-half of the surplus rental to be obtained by the plaintiffs in respect of the demised premises over and above the rent payable under the lease. The plaintiffs claimed a declaration that the defendant was not entitled to impose the condition, and a further declaration that in the circumstances the plaintiffs were entitled to grant the proposed underlease on the terms approved by the defendant other than the said condition. The defendant contended that Section 3 of the Conveyancing and Law of Property Act.