Bole v Smith

• Jurisdiction: Ireland
• Judge: V.-C.
• Judgment Date: 08 March 1899
• Court: Chancery Division (Ireland)
• Docket Number: (1898. No. 364.)
• Date: 08 March 1899

BOLE

and

SMITH

(1898. No. 364.)

Chancery Division

Construction of statutes — Cumulative remedy —— Maintenance rate — Power of entry — Appointment of receiver ——

Ashby v. WhiteENR 2 Lord Raymond, 938.

Guardians of Parish of Brighton v. Guardians of Strand UnionELR [1891] 2 Q. B. 156, 167.

Handley v. MoffattUNKIR I. R. 7 C. L. 104.

Patrington v. Attorney-GeneralELR L. R. 4 H. L. 100, 122.

Rex v. Croke Cowp. 26.

Shepherd v. HillsENR 11 Ex. 55.

Stevens v. EvansENR 2 Burr. 1152.

Stevens v. Jeacocke 11 Q. B. 731, 741.

Stockton Railway Company v. BarrettENR 11 Cl. & Fin. 590.

The Queen v. County Court Judge of EssexELR 18 Q. B. D. 704.

Treasurer Ennis killen Loan Fund Society v. GreenIR [1898] 2 I. R. 103.

Underhill v. Ellicombe M'Clell. & Y. 450, 455.

Wolverhampton Waterworks Company v. HawkesfordUNK 28 L. J. C. P. 242.

Appeal. that what he meant was heirs of the body. There is, however, no 1898. need for speculation when I come to the subsequent words that CnumPE immediately precede the gift over. They seem to me to amount V. CRUMPE. to a declaration by the testator that the estate given to Silverius is Holmes L.J. an estate to him and his heirs male, the best known mode of conferring an estate in tail male by will. This is not an erroneous recital of a gift already complete. It is part of the gift itself, and has both the character and effect of an interpretation clause. I, therefore, concur in affirming the judgment appealed from ; but, like my colleagues, I am unable to find any guidance in the terms of the gift to Commander Moriarty, which is, I think, much more difficult to construe than the devise with which I have been dealing. Solicitors for the plaintiff : Sutton .8), Son. Solicitor for the defendants Mary Crumpe and R. W. Tweedie : Crozier. G. Y. 1). V.-C. 1899. Feb. 15, 16.: March 8. BOLE v. SMITH. (1898. No. 364.) Construction of statutes— Cumulative remedy — Drainage and Navigation (Ireland) Acts, 1842 to 1857— Maintenance rate— Power of entry —Appointment of receiver—Drainage (Ireland) Act, 1842 (5 ( 6 Vict. c. 89), sects. 111, 121—Supreme Court of Judicature Act (Ireland) 1877 (40 & 41 Vict. c. 57), sect. 28 (8). Section 111 of the Drainage (Ireland) Act, 1842 (5 & 6 Viet. c. 89), dealing with sums specified by award under the Act, and thereby charged on land in respect of expenditure for drainage or improvement thereof, provides that in certain events it shall be lawful for the Commissioners of Public Works, or any person authorized by them, to enter upon the land and receive the rents and profits thereof ; and that it shall be lawful for the Court of Chancery, upon the application by petition of the Commissioners, to appoint a receiver Vol.. I.] CHANCERY DIVISION. of the rents and profits ; and that it shall be lawful for the Commissioners, if they shall so think fit, to raise the sum charged by mortgage of the land. Section 121, dealing with sums fixed as a maintenance rate, provides that the Commissioners and trustees, respectively, shall have the same powers, rights, and privileges, by entry or mortgage, to enforce the payment of such sums, as were given to the Commissioners for enforcing payment of sums charged under their award. In an action brought by trustees of a drainage district for the appointment of a receiver in respect of arrears of a maintenance rate : Held, that there was jurisdiction to appoint such receiver. ACTION by Ambrose Bole, Wentworth H. King-Harman, and Alexander C. Kingston, against William Smith, Denis Skelly, and Bridget Flanagan, for a declaration that the sum of £59 6s. 10d. arrears of drainage maintenance rate assessed purÂsuant to 5 & 6 Viet. c. 89, s. 121, in respect of the years 1891 to 1895 inclusive, was well charged on the defendants' lands of Clonmore and Sharvogue, in the county of Longford, and that payment of same might be enforced by receiver or otherwise as the Court should direct. The statement of claim alleged :—The plaintiffs were the trustees of the Keenagh Arterial Drainage District in the county of Longford, which district was duly constituted as a drainage district under the Act 5 & 6 Viet. c. 89, and the Acts amending the same : a large sum was, pursuant to the said Acts, advanced by the Treasury for the execution of drainage works in the said district, and the works were completed in 1857 ; the Commissioners of Public Works made their final award, dated the 7th April, 1858, and thereby awarded that the lands drained and improved within the said district were those described in the Schedule A to said award, and stated that the works which had been completed for the drainage and improvement of the said lands were those described in the schedule B to said award, and the Commissioners thereby specified and awarded that the proportions in which the lands so drained and improved, and the proprietors of such lauds in respect thereof respectively for the time being should in future be annually charged towards the costs and expenses which might be incurred in maintaining, &o., the watercourses, &c., were as stated in the said schedule A. In that schedule the lands of 376 THE IRISH REPORTS. [1899. V.-C. Clonmore and Sharvogue were specified as parcels of the land 1899. drained and improved, and situate within the said district, and BOLE were declared liable to contribute 013585 of the expenses of v. SMITH. maintenance: the defendants were and had been in each of the years from 1891 to 1895, both inclusive, proprietors within the meaning of the 5 & 6 Viet. c. 89, of the lands of Clonmore and. Sharvogue or parts thereof, being owners thereof in fee-simple. On the 3rd March, 1891, the plaintiffs, under the powers conferred by the Act, determined and fixed for the purpose of discharging expenses of maintenance in the then current year a sum whereof the proÂportion chargeable on Clonmore and Sharvogue was £10 17s. 8d., and in 1892, 1893, 1894, and 1895, determined and fixed certain sums for expenses of maintenance in the then current years reÂspectively, the total amount chargeable for the five years on the said lands being £59 17s. 10d. ; a sum of 1 ls. had been paid on account thereof, leaving £59 6s. 10d. due...