Dunne, Tenant; Knolles and Babington (Trustees of Nettles), Landlords

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

Dunne

Tenant

and

Knolles and Babington (Trustees of Nettles)

Landlords (1).

Appeal.

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

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.

1898.

Landlord and tenant — Land Acts, 1881 and 1887 — Fair rent — Agreement and declaration — Filing — Commencement of statutory term — Application to fix judicial rent for second statutory term-Time for application — 44 & 45 Vict. c. 49, s. 8 (6), (8); s. 20, proviso (2) — Questions to be decided on special case.

By an agreement and declaration, dated 30th March, 1882, the landlord and tenant fixed what was then the fair rent of the holding, agreeing that the first payment in respect of such rent which was payable half-yearly was to be made on the 1st May then next. The said agreement and declaration was lodged with the Clerk of the Peace on the 5th April, 1882, and, at the expiration of three months from that date, was duly filed. On the 2nd July, 1896, the tenant served an originating notice, seeking to fix the fair rent of the holding for the second statutory term:—

Held (reversing the decision of the Land Commission—[1896] 2 I. R. 671), that the application of the tenant was not premature, as the first statutory term was current pursuant to the terms of the agreement on 1st May, 1882.

The Court of Appeal declined to decide whether the first statutory term began to run upon 1st November, 1881, or upon 1st May, 1882, the decision of this question being immaterial to the rights of the parties in this case.

Case stated by the Irish Land Commission for the consideration and decision of Her Majesty's Court of Appeal.

1. “The tenant on the 2nd July, 1896, served an originating notice of an application to the Land Commission for an order fixing a fair rent payable for his holding for the second statutory term. The fair rent for the first statutory term had been fixed by an agreement and declaration entered into between the landlord and the tenant pursuant to section 8, sub-sect. 6, of the Land Law (Ireland) Act, 1881. The said agreement and declaration bears date the 30th March, 1882, and the material parts of it were as follows:—‘We hereby agree and declare that £69 9s. 8d. is now the fair rent of the above holding, and we apply to the County

Court to file this agreement, to the intent that the said rent of £69 9s. 8d. may be the judicial rent of the holding, to be payable half yearly on every 1st May and 1st November, the first payment to be made on the 1st May next.’ The said agreement and declaration was lodged in the office of the Clerk of the Peace of the East Riding of the county of Cork, on the 5th April, 1882, and for the purposes of this case it is to be taken that it was duly filed in the Civil Bill Court, at the expiration of three months from that date. It appears from the said agreement and declaration that the judicial rent fixed by it was the same as the previous existing rent of the holding.

2. “If the statutory term consequent upon the fixing of a judicial rent by the filing of the said agreement and declaration commenced as from the 1st May, 1882 (the rent day next following the date of the said agreement and declaration), fourteen years of the said statutory term would have expired on the 1st May, 1896, and the tenant would have been entitled to serve the said originating notice to have a fair rent fixed for a second statutory term. If, on the other hand, the said statutory term only commenced as from the rent day next succeeding the filing of the said agreement and declaration, the said statutory term would have commenced as from the 1st November, 1882, and fourteen years thereof not having expired until the 1st November, 1896, the tenant would not have been entitled to serve the said originating notice until after the latter date.

3. “It was argued for the landlord that the first statutory term ran from the 1st November, 1882, and that consequently the said originating notice was premature and the Land Commission had no jurisdiction to make any order upon the application.

4. “It was argued upon behalf of the tenant that though an agreement and declaration under the said enactment required to be filed in order to become operative, when filed, it operated from the date of its execution. It was also argued that even if this was not so, as a general rule, the express provisions of the agreement and declaration in this particular case caused the judicial rent and statutory term to run as from the gale day next succeeding the execution of the agreement and declaration.

5. “We were of opinion, where a fair rent was fixed for the first statutory term by an agreement and declaration entered into under section 8, sub-sect. 6, of the Land Law (Ireland) Act, 1881, and subsequently duly filed in Court, the statutory term commenced from the rent day next succeeding the filing and not the making of the agreement: that the special provisions of the agreement of the 30th March, 1882, did not alter the date of the commencement of the statutory term, which in our opinion ran as from the 1st November, 1882, and consequently the said originating notice to fix a fair rent for a second statutory term was premature and should be dismissed. At the request of counsel for the tenant we agreed to state this case for the consideration and decision of Her Majesty's Court of Appeal in Ireland.

“The questions for such consideration and decision are:—

1. “Whether, where the fair rent of a holding held under a present tenancy has been fixed for the first statutory term by an agreement and declaration executed pursuant to section 8, sub-sect. 6, of the Land Law (Ireland) Act, 1881, and duly filed in Court, the statutory term commences from the rent day next succeeding the filing, and not the making, of such agreement and declaration.

2. “Whether, assuming that the statutory term in such case would commence from the rent day next succeeding the filing of the agreement and declaration, where such agreement and declaration contains no provision as to the date at which the fair rent shall become payable or the statutory term shall commence, the effect of the special provisions in the agreement and declaration of the 30th of March, 1882, was to cause the statutory term to run from the rent day next succeeding the execution of the agreement and declaration.

“Hugh Pollock, A. R.”

The case is reported in the Court below [1896] 2 I. R. 671.

T. M. Healy, for the tenant, cited Church v. M'Poyle (1); Daries v. M'Mahon (2); Conyngham v. Gallagher (3); Law v. Sinnamon (4).

P. D. Fleming, for the landlord.

Cur. ad. vult.

P. D. Fleming, for the landlord.

Lord Ashbourne, C.:—

This is an...