Estate of Talbot Crosbie Catherine Duggan v Mary Walsh

• Jurisdiction: Ireland
• Judgment Date: 05 June 1905
• Date: 05 June 1905
• Court: King's Bench Division (Ireland)

In re Talbot Crosbie's Estate (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 — Land Purchase Acts — Land Act, 1903, sections 1, 24 — “Holding subject to a judicial rent fixed or agreed to since the passing of the Act of 1896” — Purchase agreement — Date of — Date of application for advance — Appeal — Jurisdiction.

W., a first term judicial tenant, entered into an originating agreement with the vendor, pursuant to sect. 8, sub-sect. 6, of the Land Law (Ireland) Act, 1881, fixing the rent of the holding for the second term. This agreement and declaration were lodged in the Land Commission on the 30th March, 1904, and were filed on the 30th June following. The percentage reduction in the rent would bring the case within the zone limits in sect. 1 of the Land Act of 1903.

On the 30th April, 1904, W. and the vendor signed a purchase-agreement, under the Irish Land Act, 1903, for the purchase of the holding, which was lodged in the Irish Land Commission on the 26th July, 1904:—

Held, that sect. 24, sub-sect. 12, of the Irish Land Act, 1903, does not take away the general right of appeal from an order of the Judicial Commissioner to the Court of Appeal.

Held (2) (reversing the decision of Meredith, J.), that the date on which the application was lodged with the Land Commission, and not the date of the purchase agreement, was the date on which an “application was made for an advance” within the meaning of sect. 1, sub-sect. 1, of the Act of 1903; that the date of lodging the application was the date for determining whether the holding was “subject to a judicial rent fixed or agreed to since the passing of the act of 1896,” as mentioned in sect. 1, sub-sect. 1 (a), of the Act of 1903; and that the case was one in which the Estates Commissioners were bound to sanction the advance applied for.

This was an appeal ex parte from a decision of Meredith, J., dated the 23rd January, 1905, on a question submitted to him by the Estates Commissioners.

Mary Walsh was a first term judicial tenant. On the 7th March, 1904, an originating agreement and declaration were entered into between her and the vendor, pursuant to section 8,

sub-section 6, of the Land Law (Ireland) Act, 1881, agreeing to a second term rent, fixing the rent at £70 a year. This agreement and declaration were lodged in the Land Commission on the 30th March, 1904, and were filed on the 30th June following. The percentage reduction in the rent would be within the zone limits in section 1 of the Act.

On the 30th April, 1904, Mary Walsh and the vendor signed a purchase agreement, which was lodged in the Irish Land Commission on the 26th July, 1904.

The Estates Commissioners referred the following question to the Judicial Commissioner for decision. Is this holding, having regard to the date of the purchase agreement, a holding subject to a judicial rent fixed or agreed to since the passing of the Act of 1896, on which the Commissioners, pursuant to section 1 of the Act of 1903, are bound to sanction the advance applied for? Meredith, J., decided that the Estates Commissioners were not bound to sanction the advance, and the vendor appealed. See the case reported ante, p. 236.

Ronan, K.C., Bourke, K.C., Jellett, K.C., and M'Elligott, for the vendor.

Palles, C.B.:—

There are two questions for decision upon this appeal—(1) whether the appeal lies; (2) if so, whether the order appealed from is right?

The first question is one of which it is impossible to exaggerate the importance, as a decision upon it in the negative will restrict, to a material extent, the right of those interested in the vast mass of property which the promised Government advance of a hundred millions of money is bringing, and will continue to bring, under the jurisdiction of the Land Commission, to appeal to this Court on matters of law which, before the Act of 1903, existed in all proceedings under the Land Purchase Acts. No doubt such a decision would leave untouched appeals in relation to the distribution of purchase-money, but that distribution is but a part, and indeed a small part, of the proceedings under the Act of 1903, and the other proceedings not only may, but must, involve legal questions of much complexity and difficulty, of which that decided by the order under appeal may be taken as an example.

Whether the appeal lies, depends on two questions—(1) is the 22nd section of the Act of 1885 unrepealed, so far as it relates to proceedings other than those under section 24 of the Act of 1903? and (2) if so, is it applicable to the decision appealed from?

It is not suggested that this alleged repeal has been effected otherwise than by the Act of 1903, to the consideration of which I accordingly address myself.

The 103rd section of this Act expressly repeals the enactments mentioned in the schedule “to the extent mentioned in the third column of that schedule.” That schedule mentions the Act of 1885, but the extent of its repeal is confined to part of section 5 and the entire of section 7. It does not embrace section 22, which, we may consequently assume, was deliberately omitted from the schedule.

This circumstance, although, of course, not conclusive, is per se sufficient to make one pause. Such an omission is perfectly consistent with the partial repeal of the section; but it is difficult to gather a total repeal by implication in an Act which shows that when the Legislature intended such a repeal it said so expressly. I therefore approach the consideration of the enactment which is said to have worked this implied repeal with a legislative caution that I should carefully scan it, to see whether it is not capable of some construction which will save the Legislature from the imputation of, at least, having been careless in its task.

Coming now to section 24, one of whose sub-sections (12) is said to have effected this repeal, I find that it follows a group of sections 1 to 23, headed “Purchase and sale of estates,” which prescribe the duties of the “Estates Commissioners”—duties which are largely of an administrative character, and which contain a provision which I believe to be nearly, if not entirely, unexampled in relation to a body invested, as were the Estates Commissioners, with judicial functions, viz. section 23, sub-sect. 8.

The proceedings under these sections 1 to 23, are, by section 23, sub-section 8, directed to be carried into effect under the control of the Executive Government, and terminate with the vesting of the estate in the purchaser, who thereby acquires an indefeasible estate in it, free from all claims. Then comes the 24th section, which is the first of three sections under a new heading, “Purchase-money of Estates.” It commences by a direction that, upon the vesting of the estate in the purchaser, the Land Commission shall pay the purchase-money into the Bank of Ireland, and shall make an order attaching to the purchase-money all claims which formerly affected the land sold. The section then proceeds, in an elaborate code of thirteen sub-sections, to define the jurisdiction and powers of the Land Commission in relation to the distribution of the purchase-money thus lodged—a jurisdiction eminently judicial, and one the exercise of which involves the determination of every question which can arise upon the title to the land sold.

Passing on from this section, we come to the 25th, the object of which is to prevent delay, and the 26th, which confers a power upon the Lord Chancellor. Thus terminate the sections under the heading, “Purchase-money of Estates”; and the Act then proceeds with a new group of sections, involving duties merely administrative, and headed “General Finance.”

Thus we find that the three sections under the heading “Purchase-money of Estates” constitute an enactment apart from, and differing in character from, the portions of the Act either preceding or immediately following it. Putting out of consideration section 25, which is little more than formal, and section 26, which affects the Lord Chancellor and not the Land Commission, we have the 24th section constituting a code in itself. A priori, one would expect that such a code would contain appeal clauses of a character different from those relating to other parts of the Act; and accordingly we find that the appeal clauses in the sub-sections now under consideration are coupled with the usual ancillary clauses abolishing certiorari and prohibition. A priori, also one would expect that all the provisions of this section would be confined to that which, not only by its heading, but by every sub-section other than the 12th, is shown to be its proper subject-matter, “Purchase-money of Estates.”

It is here necessary to consider the exact mode by which, at the time of the Act of 1903, decisions of the Land...