Cope, Landlord; Cunningham, Tenant

• Jurisdiction: Ireland
• Judgment Date: 01 February 1897
• Date: 01 February 1897
• Court: Court of Appeal (Ireland)

Cope

Landlord

and

Cunningham

Tenant (1).

Appeal.

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1897.

Court fixing fair rent — Schedule — Land Commission — Land Law (Ireland) Act, 1896, section 1.

The Land Commission, on rehearing a case from the Sub-Commission, is bound to ascertain and record, in form of a schedule, the matters mentioned in section 1 of the Land Law (Ireland) Act, 1896.

Case stated by the Land Commission.

The tenant, on the 24th March, 1896, served an originating notice of an application to the Land Commission, to fix the fair rent of his holding, payable during a statutory term. The application came on for hearing before a Sub-commission, duly constituted under the powers conferred on the Land Commission, by sect. 43 of the Land Law (Ireland) Act, 1881, to which Sub-Commission power had been delegated by the Land Commission, to hear, decide, and make orders in cases under the Land Law (Ireland) Acts, 1881 and 1887; and an order was made by the Sub-commission, on the 23rd June, 1896, fixing and determining that the fair rent of the said holding was the annual sum of £2 12s. 6d.

The landlord being dissatisfied with the said order duly served a notice in pursuance of sect. 14 of the Land Law (Ireland) Act, 1881, requiring his case to be reheard before three Commissioners sitting together, and the case came on for rehearing before the Land Commission, at Armagh, on November 4th, 1896.

On the rehearing, an application was made to the Land Commission, on behalf of the landlord, to ascertain and record in the form of a schedule the several matters and things mentioned in sub-sect. 1 of sect. 1 of the Land Law (Ireland) Act, 1896, but the Land Commission refused to do so on the ground that sub-sect. 1 of sect. 1 of the said Act did not apply to the present case.

The Land Commission considered the word “Court” in sub-sect. 2 of sect. 3 of the said Act applied exclusively to the Court, whether Civil Bill Court, Sub-Commission, or Land Commission, by whom a judicial rent is fixed in the first instance, and not to the Land Commission, when hearing appeals from the Civil Bill Courts, or rehearing cases heard by a Sub-Commission, and that where the Land Commission on such appeal or rehearing affirms or varies the judicial rent it does not fix a judicial rent within the meaning of this sub-section. The Land Commission were also of opinion, both from the similarity of the language in the two sub-sections, and from the nature of the subject-matter of sub-sect. 1 of sect. 1 of the said Act, that the word “Court” in the last-mentioned sub-section must be construed in the same manner as in sub-sect. 2 of sect. 3, and that the schedule therein mentioned is to be prepared by the Court, by whom a judicial rent is fixed in the first instance. If such a schedule had not been prepared by the Civil Bill Court or the Sub-Commission, as the case may be, the Land Commission on an appeal or rehearing would rarely have the materials to enable it to ascertain and record the matters dealt with by the schedule. It appeared to the Land Commission that the judicial rent in this case payable during the second statutory term had been fixed by the Sub-Commission prior to the passing of the Land Law (Ireland) Act, 1896, that the second statutory term had commenced to run from the 1st November, 1896, and that even though the Land Commission had varied this judicial rent so fixed by the Sub-Commission, the Land Commission did not fix the judicial rent for the holding within the meaning of sub-sect. 1 of sect. 1 of the said Act (1).

The question stated was, whether under the circumstances stated in the foregoing case the Land Commission were bound to ascertain and record in the form of a schedule the several matters mentioned in sub-sect. 1 of sect. 1 of the Land Law (Ir.) Act, 1896?

Campbell, Q.C., and H. A. Johnston, for the landlord:—

A re-hearing before the Land Commission is not an appeal: Adams v. Dunseath (2), Kieran v. Caruth, and Lewis v. Darnley

(1), Conyngham v. Gallagher (2). On a rehearing the order is that of the Land Commission.

Campbell, Q.C., and H. A. Johnston, for the landlord:—

Lord Ashbourne, C.:—

This case comes before the Court on a case stated by the Land Commission, and it raises a very important question on the construction and intention of sect. 1 of the Land Law Act of 1896. The case stated by the Land Commission states that the tenant on the 24th March, 1896, served an originating notice to fix a fair rent of his holding. The application came on for hearing before a Sub-Commission duly constituted under the powers conferred on the Land Commission by sect. 43 of the Land Law Act, 1881, and an order was made by the Sub-Commission on the 23rd June, 1896, fixing the fair rent of the holding. The landlord being dissatisfied with the order served a notice requiring his case to be reheard, and the case came on before the Land Commission, at Armagh, on the 4th November, 1896. The case then states:—“On the rehearing an application was made to us on behalf of the landlord that we should ascertain and record in the form of a schedule the several matters and things mentioned in sub-sect. 1 of sect. 1 of the Land Law (Ireland) Act, 1896, but we refused to do so on the ground that sub-sect. 1 of sect. 1 did not apply to the present case.” The question we have to decide is whether that conclusion of the Land Commission is correct, and whether the refusal to fill up a schedule under sect. 1 is valid.

Mr. Justice Bewley founded his opinion somewhat on...