Attorney-General and Commissioners of Public Works in Ireland v Howley

• Jurisdiction: Ireland
• Judgment Date: 17 February 1914
• Date: 17 February 1914
• Court: Unspecified Court

Attorney-General And Commissioners Of Public Works In Ireland

and

Howley (1).

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1914.

Statute of Limitations — Crown debt — Servants of the Crown — Commissioners of Public Works — Loan to occupier — Land Law (Ireland) Act, 1881 (44 & 45 Vict c. 49), s. 31, sub-s. 2 — Landed Property Improvement (Ireland) Act, 1847 (10 & 11 Vict, c. 32).

A loan made to an occupier of land by the Commissioners of Public Works acting in execution of the Land Law (Ireland) Act, 1881, s. 31, sub-s. 2, and the provisions of the Landed Property Improvement (Ireland) Acts made applicable thereto by Treasury Minute, is a Crown debt, and as such is not barred by the Statute of Limitations.

Decision of the Master of the Rolls, [1913] 1 I. R. 455, reversed.

Appeal by the plaintiffs from an order of the Master of the Rolls reported [1913] 1I. R. 455, where the facts are fully stated.

The Solicitor-General (Jonathan Pim, K.C.), and Serjeant M'Sweeny, K.C. (with them Macafee), for the appellants:—

The only question to be argued is, were the Commissioners of Public Works right in their contention that they were acting on behalf of the Crown. A Treasury minute was made on December 21st, 1881, pursuant to sect. 31, sub-s. 2, of the Land Law (Ireland) Act, 1881, and published in the Dublin Gazette of January 3rd, 1882. By this minute the following statutory provisions were made applicable to advances to occupiers under the Land Law (Ireland) Act, 1881, namely, 10 & 11 Vict. c. 32, ss. 3, 4, 5, 13, 14, 16, 17, 18, 23, 27, 29, 30, 31, 32, 56-60, 65; 12 & 13 Vict. c. 59, ss. 1-4; 15 & 16 Vict. c. 34; 23 & 24 Vict. c. 19; 24 & 25 Vict. c. 71; 25 & 26 Vict. c. 29, s. 3; 29 & 30 Vict. c. 40, s. 5. The earliest statutory provisions dealing with advances by the Treasury for purposes cognate to those coming under the Landed

Property Improvement (Ireland) Acts were sects. 1, 2, 91, and 97 of 1 & 2 Wm. 4, c. 33; the effect of those provisions was that the money remained the King's money, and was advanced through the Commissioners of the Treasury as a conduit-pipe. A bond obligatory was given by the borrower to the King. By a subsequent statute (6 & 7 Wm. 4, c. 108) the bond might be given to the Secretary of the Commissioners. That principle remains in all the provisions authorizing the advances under the Landed Property Improvement (Ireland) Acts. The money remains the money of the King; the Commissioners of Public Works are not acting in their corporate capacity; though they are mortgagees, they are acting as servants of the Crown, which is quite possible: Murphy v. Soady, reported in a note to Wheeler v. Commissioners of Public Works (1), at p. 213; The Queen v. M'Cann (2). In Murphy v. Soady the Board of Works were held to be servants of the Crown. Mr. Ronan's argument in the Court below, based on the passage taken from the observations of Palles, C.B., at p. 235 of Wheeler's Case, that “Parliament might have imposed upon the defendants obligations to private individuals which would have been inconsistent with their character as Crown servants” cannot apply here, because the Commissioners do not make the loan; they are a mere conduit-pipe. The loan must be authorized by the Treasury, and even the form of the deed of charge is prescribed by the Treasury minute. Wheeler v. Commissioners of Public Works (1) does not apply, because that case turned upon the particular words of the Stephen's Green Act.

Ronan, K.C., and Leonard (with them Denis Henry, K.C.), for the respondent:—

The Board of Works were entrusted with this money to lend it as principals, and the contract in this case is one between principals. Our covenant is with the Commissioners, and the intention of the statute was that we could sue on our deed. The King is not mentioned in it; it is in form an ordinary deed by trustees who hold money in trust. If our contract is not with the Commissioners, we have no remedy but a petition of right for any

wrong done by the Commissioners. In these advances there are two classes of transactions—one class where there is a rentcharge made payable to the Crown and created by an order, in which case the Commissioners cannot sue, and in consequence statutory rights are created, e.g., on the one side the right of appointment of a receiver upon the petition of the Attorney-General, and on the other side the right of redemption. In the other class, to which this case belongs, these particular statutory rights, contained in sections 20, 37, 39, and 40 of 10 & 11 Vict. c. 32, have not been extended, but in lieu thereof a contract is made between the borrower and the Commissioners, and they alone can enforce it; the security is not created by an order, but is made by a deed of charge in the Commissioners' names; and this contract must be assumed to be intra vires, for if it is not the deed is void, and there is no charge at all. The debt is now barred by the Statute of Limitations.

They referred to Wheeler v. Commissioners of Public Works (1); Graham v. Commissioners of Works (2); The Attorney-General v. Fetherstonhaugh (3); Irish Land Commission v. Ryan (4); M'Carthy v. Daunt (5); Barcroft v. Murphy (6); Pentland v. Stokes (7).

The Solicitor-General in reply.

Palles C.B.:—

This is an appeal from a decree of the Master of the Rolls dismissing an action brought by the Attorney-General and the Commissioners of Public Works against the assignee of a tenancy from year to year in lands in the county Sligo, to raise thereout by sale the sum due on foot of a charge created by a deed of 23rd January, 1884.

That deed was made between Michael Loftus, the then tenant and occupier of the lands (Whose estate is now vested in the defendant), of the one part, and the Commissioners of Public Works in Ireland,

described as “acting in execution of the Land Law (Ireland) Act, 1881, and the Landed Property Improvement (Ireland) Acts,” of the...