Butler, Lynam v (No. 2)

JurisdictionIreland
CourtSupreme Court (Irish Free State)
Judgment Date01 January 1933
Docket Number(1929. No. 136.)
Date01 January 1933

High Court.

Supreme Court.

(1929. No. 136.)
Lynham v. Butler (No. 2).
FRANCIS LYNHAM
Plaintiff
and
MICHAEL BUTLER,Defendant (No. 2) (1).

Land Purchase Acts - Jurisdiction of Commissioners of the Land Commission other than Judicial Commissioner - Exercise of powers conferred by Land Act, 1923 - Ascertainment of lands to be vested in the Land Commission. - Whether exercising judicial or administrative powers - Whether jurisdiction conferred a violation of the Constitution - Status of Judicial Commissioner on hearing appeals - "Judicial power of the Irish Free State" - Practice - Pleading - Rejoinder - Motion to strike out paragraphs of rejoinder - Estoppel - Land Law (Commission) Act, 1923 (No. 27 of1923), sects. 4, 12 - Land Act, 1923 (No. 42 of 1923) sects. 24, 40 -Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922 (No. 1of 1922), Sch. I, Arts. 2, 64, 68, 69.

Motion.

On the 27th March, 1929, the plaintiff, Francis Lynham, issued a plenary summons against the defendant, Rev. Michael Butler, claiming £1,600, being damages for trespass and mesne rates payable by the defendant in respect of the occupation by the defendant of the plaintiff's lands at Mountseskin in the County of Dublin.

These lands had been the subject of previous litigation, as stated in the head note, and more fully referred to in the judgment of Kennedy C.J. Following this litigation the defendant gave up possession of the lands on the 3rd April, 1928. The previous litigation is reported (1).

The statement of claim in the present action, delivered on the 31st July, 1929, was as follows:—

"1. Mary Macinerney was entitled to a life estate in the fee simple interest in the lands of Mountseskin, in the Barony of Upper Cross and County of Dublin, containing 674 acres, 2 roods, 30 perches statute measure.

2. During her life time the said Mary Macinerney made a lease of said lands of Mountseskin to the defendant for the duration of her life at the yearly rent of £450 0s. 0d.

3. The said Mary Macinerney died on the 22nd day of August, 1924, whereupon the plaintiff under the terms of the will, dated the 19th day of May, 1866, of his grandfather, Francis Lynham, became entitled to the fee simple estate in possession in the said lands of Mountseskin.

4. On the death of the said Mary Macinerney the

interest of the defendant in the said lands of Mountseskin under the said lease determined and expired.

5. The defendant, although called upon by the plaintiff, refused to deliver up to the plaintiff possession of the said lands of Mountseskin and wrongfully continued in possession and in receipt of the rents and profits thereof from the 22nd day of August, 1924, until the 3rd day of April, 1928.

The plaintiff claims:—

£1,635 18s. 8d. mesne profits; alternatively £1,635 18s. 8d. damages for trespass."

The defendant's defence and counter-claim delivered on the 17th October, 1929, were as follows:—

"1. The defendant denies that the plaintiff became or is entitled to the fee simple estate in possession in the said lands of Mountseskin as alleged, or at all.

2. The defendant denies that his interest in the said lands of Mountseskin was determined or expired on the death of the said Mary Macinerney, but says that under and by virtue of the Land Acts, 1923, 1926 and 1927, he is entitled to the full beneficial occupation and possession of the said lands as occupier of tenanted lands within the meaning of the said Acts to the exclusion of the plaintiff, and the defendant denies that his continuance in possession of the said lands was wrongful.

3. By way of further defence to the claim of the plaintiff in this action, the defendant says that by orders and judgments of the High Court of Justice in Saorstát Éireann éireann (Record Number 1924/5898) and of the Supreme Court of Justice in Saorstát Éireann éireann in a certain action in which the plaintiff in this action was plaintiff and the defendant in this action was defendant, the claim of the plaintiff in this action to recover possession of the said lands and to mesne profits from the defendant in respect of the occupation of the said lands was adjudged to be dismissed with costs, and the defendant will rely on Article 66 of the Constitution and submits and will contend at the trial that the claim of the plaintiff in this action is res judicataand that the plaintiff is estopped from claiming or recovering the relief sought for in this action.

4. The defendant further says, in answer to the claim of the plaintiff, that the plaintiff is estopped from claiming or recovering the relief sought for in this action and that the subject-matter of this action is res judicata under and by virtue of all order dated the 7th February, 1924, made by Mr. Justice Wylie (Record Number 179), in the Court, of the Irish Land Commission, in which proceedings the plaintiff was represented and in which it was declared that the land and premises the subject matter of this action were tenanted lands within the meaning of the Land Act, 1923. The defendant submits and will contend that by reason of the said order and declaration the plaintiff is not entitled to the relief sought or any part thereof.

5. As a further and alternative defence to the claim of the plaintiff, the defendant denies that during the period from the 22nd August, 1924, until 3rd April, 1928, there were any profits made or received by him from the said lands and says that during the said period the occupation and working of the said lands resulted in loss and not a profit and the claim of the plaintiff in this action is unfounded, unjust, and excessive.

Counter-claim.

6. The defendant by way of counter-claim, for brevity, repeats paragraphs 1 and 2 of the statement of claim and paragraphs 2, 3, and 4 of his defence and says that under and by virtue of the provisions of the Land Acts, 1923, 1926 and 1927, the defendant, as lessee for a life under the said lease in occupation of the said lands on the 9th August, 1923, was and is entitled to the possession and occupation thereof and by the said orders and declarations referred to in paragraphs 3 and 4 of this defence the defendant has been declared so entitled. Notwithstanding said acts and orders, the plaintiff has wrongfully retained possession of the said lands and premises notwithstanding demands made by and on behalf of the defendant upon the plaintiff to hand over possession of the same to the defendant.

The defendant claims:—

1. To recover possession of the said lands and premises containing 668 acres, 1 rood and 9 perches, and 9 acres, 0 roods and 13 perches, statute measure, being the lands of Mountseskin in the parish of Tallaght, Barony of Uppercross and County of Dublin.

2. An enquiry as to damages sustained by the defendant by reason of the said wrongful acts and trespass of the plaintiff.

3. Costs."

The plaintiff's reply and defence to the defendant's counterclaim, delivered on the 21st October, 1929, were as follows:—

"1. The plaintiff joins issue with the defendant on his defence save as regards the admissions contained therein.

2. The defendant was not, at the date of the passing of the Land Act, 1923, nor at any material date, an occupier (in respect of the said lands) of tenanted lands within the meaning of the said Acts by reason of the fact that the contract of tenancy created by the said lease (dated 30th July, 1920) mentioned in paragraph 2 of the statement of claim was a letting for temporary convenience within the meaning of sub-sect. (2) of sect. 73 of the Land Act, 1923, and by order made by the Judicial Commissioner of the Irish Land Commission dated the 29th June, 1926, entitled in the estate of Francis Lynham (Record No. S. 29), on the application of the plaintiff herein and after the defendant herein had been heard in opposition to the said application, it was declared that the said tenancy was a letting for temporary convenience, and the objection of the plaintiff herein to the inclusion of the said lands among the lands to be vested pursuant to the said Act in the Land Commission as tenanted lands was allowed. By an order dated the 8th February, 1928, and made by the Supreme Court of Saorstát Éireann éireann, upon the hearing of an appeal by the defendant herein against the said order of the 29th June, 1926, the said order was confirmed. The plaintiff will contend that the defendant is bound conclusively by the said orders and cannot be heard to allege or contend as set out in paragraphs 2, 3 and 4 of his defence.

3. The said order dated the 7th February, 1924, made by Mr. Justice Wylie and referred to in paragraph 4 of the defence was discharged expressly by the said order of the 29th June, 1926, referred to in the last preceding paragraph hereof.

Defence to Counter-claim.

4. The plaintiff repeats paragraphs 2 and 3 of the foregoing reply and says that by the said orders it was determined conclusively that the defendant was not entitled to continue to occupy the said lands after the expiration of the term granted by the said lease. Possession of the said lands was handed over by the defendant to the plaintiff on the 3rd April, 1928, under threat of legal proceedings by the plaintiff to compel the defendant so to do."

The defendant's rejoinder, as amended by leave of the Court granted on the 16th December, 1929, and delivered pursuant to leave of the Court, was as follows:—

"1. The defendant joins issue on the plaintiff's reply and defence to counter-claim.

"2. The defendant by way of further defence to the plaintiff's claim in this action and by way of rejoinder denies that he was not the occupier (in respect of the said lands) of tenanted land within the meaning of the Land Acts, 1923, 1926 and 1927, and denies that the contract of tenancy in respect of the said lands was a letting for temporary convenience within the meaning of sub-sect. (2) of sect. 73 of the Land Act, 1923.

"3. The defendant further submits and...

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