Barton v M'Fadden

JurisdictionIreland
Judgment Date17 May 1905
Date17 May 1905
CourtCourt of Appeal (Ireland)
Barton
and
M'Fadden (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.

1905.

Landlord and tenant — Covenant — Statutory condition — Tenancy subject to — Opening a house for sale of intoxicating liquors — Land Law (Ireland) Act, 1881 (44 & 45 Vict. c. 49), s. 5.

J. M. was tenant to the plaintiff of a farm of land held under a judicial tenancy, and there was a spirit license attached to the dwelling-house on the farm. The fair rent for the second statutory term was fixed in July, 1897. J. M. died in 1898, leaving a daughter, and a son (the defendant) then in America. The daughter obtained letters of administration to her father in 1898, and obtained a transfer of the license into her own name. In June, 1904, the daughter died without having administered her father's assets. She made a will, but did not appoint an executor. The defendant, having returned from America, entered into possession of the premises, and applied for and obtained, at the Annual Licensing Sessions in October, 1904, a transfer of the license, subject to representation being raised by him to his deceased sister.

In December, 1904, the plaintiff obtained an order for a writ of certiorari to quash the order transferring the license to the defendant. At the Quarter Sessions in January, 1905, the defendant, without asking the plaintiff's consent, obtained a certificate for a new license, notwithstanding the plaintiff's objection:—

Held (reversing the decision of the Master of the Rolls), that, upon the order of October, 1904, transferring the license, being quashed, the house ceased to be licensed; that obtaining a new license for the premises was “opening a publichouse” within the meaning of sect. 5, sub-sect. 6, of the Land Law (Ireland) Act, 1881; and that the plaintiff was entitled to an injunction to restrain the defendant from keeping the house open as a publichouse.

Appeal from an order of the Master of the Rolls refusing the plaintiffs motion for an injunction.

The action was brought for an injunction to restrain the defendant from opening, or keeping open, without the consent of the plaintiff as landlord, a house for the sale of intoxicating liquors, upon a holding subject to statutory conditions, situate at Duntinny, in the county of Donegal.

The plaintiff was owner in fee of the lands of Gortnacor and Duntinny, in the county of Donegal. John McFadden formerly held a farm in the townland of Gortnacor, as judicial tenant to the plaintiff, the fair rent for the second term in which had been fixed at the annual sum of £4 3s. on the 8th July, 1897. The house, which was situate on the townland of Duntinny, had a spirit license attached to it. John M'Fadden died intestate in 1898, leaving him surviving his widow (who died in November, 1898), a son, Neill M'Fadden (then in America), and a daughter, Mary M'Fadden. On the 3rd October, 1898, Mary M'Fadden took out administration to her father, and duly obtained a transfer of the license into her own name. Mary M'Fadden died on the 2nd June, 1904, without having administered the estate of her father, but having made a will without naming an executor.

Neill M'Fadden returned to Ireland in 1904, and on the 10th October, 1904, he applied for and obtained a transfer of the license from the magistrates at Letterkenny, “subject to representation to said Mary M'Fadden, deceased, being raised by him.”

The plaintiff applied to the King's Bench for a writ of certiorari to quash this order, on the ground, as the plaintiff stated, that the defendant had no title, and, by order of the King's Bench, dated the 12th December, 1904, the order transferring the license to the defendant was quashed.

On the 20th January, 1905, the defendant applied at the Quarter Sessions at Lifford for a new license for the sale of intoxicating liquors on the holding. The constabulary opposed the application, and the plaintiff also opposed on the ground that the consent of the plaintiff, as landlord, had not been obtained, under sect. 5, sub-sect. 6, of the Land Law (Ireland) Act, 1881. The County Court Judge granted the defendant the certificate necessary to enable him to obtain a new license.

On the 22nd February, 1905, the plaintiff applied for an injunction to restrain the defendant from opening, or keeping open, without the consent of the plaintiff, as landlord, a house for sale of intoxicating liquors on the holding.

The defendant proved that, after the death of his sister, Mary M'Fadden, he obtained letters of administration de bonis non to his father's estate on the 5th October, 1904, and also letters of administration, with the will annexed, to the estate of Mary M'Fadden on the 2nd December, 1904, and that on the death of Mary M'Fadden the defendant applied for and obtained a transfer of the license from the magistrates at Petty Sessions at Tamney, in the county of Donegal, and he also obtained a confirmation of the transfer at the Annual Licensing Quarter Sessions at Letterkenny, on the 10th October, 1904.

The defendant stated that the ground upon which the order of the Justices, confirming the transfer, was quashed by the King's Bench, was that the said order was, on the face of it, informal, as it contained a condition that the defendant should obtain letters of administration to the personal estate of Mary M'Fadden, which said condition the Justices had no power in law to attach to their said order.

On the 2nd December, 1904, the defendant obtained letters of administration, with the will annexed, to Mary...

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1 cases
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    ...COURTS OF JUSTICE ACT 1928 S18(1) AHERNE, STATE v COTTER 1982 1 IR 188 COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S50 BARTON v M'FADDEN 1905 1 IR 472 BURKE v DPP, PEOPLE 2007 2 ILRM 371 HARVEY v JUDGE LEONARD & DPP UNREP HEDIGAN 3.7.2008 2008/28/6178 2008 IEHC 209 CRIMINAL LAW Appeal Suspen......

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