Hill v The Guardians of Clonmel Union

• Jurisdiction: Ireland
• Judgment Date: 30 June 1896
• Date: 30 June 1896
• Court: Chancery Division (Ireland)

HILL

and

THE GUARDIANS OF CLONMEL UNION

Chancery Division

Guardians of the poor — Building of workhouse — Statutory power — Payment of loan — Limitation of time — Power to charge rates generally — Laches — Poor Relief (Ireland) Act, 1838 (1 & 2 Vict. c. 56), ss. 35, 61-66, 89,90.

Carpenter's Case 6 A. & E. 794.

Frend v. DennettENR 4 C. B. (N. S.) 576.

King v. Justices of LancashireENR 12 East, 366.

Midland Raibray Co. v. Edmonton UnionELR [1895] A. C. 485.

Reg. v. Hurstbourne Tarrant'sENR E. B. & E. 246.

Reg. v. Hurstbourne TarrantENR E. B. & E. 246.

Reg. v. St. Michael's, SouthamptonENR 6 E. & B. 807.

Rex v. Carpenter 6 A. & E. 794.

Rex v. Churchwardens of Dursley 5 A. & E. 10.

The King v. Carpenter 6 A. & E. 794.

The King v. St. Michael's Pembroke Ibid. 603.

The King v. The Churchwardens of Dursley 5 A. & E. 10.

The King v. WavellENR 1 Doug. 116.

The Queen v. The Churchwardens and overseers of the Poor of Hurstbourne TarrantENR E. B. & E. 246.

The Queen v. The Churchwardens of All Saints, WiganELR 1 App. Cas. 611.

THE IRISH REPORTS. [1897. HILL v. THE GUARDIANS OF CLONHEL UNION. June 12, 13, (1896. No. 153.) 18, 30. Guardians of the poor—Building of workhouse—Statutory power—Payment of loan—Limitation of time—Power to charge rates generally—Laches—Poor Relief (Ireland) Act, 1838 (1 4' 2 Vitt. c. 56), ss. 35, 61-66, 89, 90. The Act 1 & 2 Viet. c. 56, which provides that money borrowed from a private person on tfie security of rates and for the purposes as therein proÂvided, shall be repaid by annual instalments of not less than one-twentieth of the sum borrowed, the first of such instalments to be paid at the expiration of one year from the date of the loan on the happening of the conditions menÂtioned, does not extinguish the debt in a case where there has been no instalÂment of the principal money paid within the twenty years. The general principle as regards such borrowing statutes is that where there is a statutory power of charging existing and future rates, a direction to pay within a fixed period, or by certain instalments, is directory only and not mandatory ; but that when the only charge is upon a rate to be specially made for the purpose, or upon the rates for certain years only, the statutory proviÂsion must be strictly followed, otherwise the debt will be lost. In 1851 Guardians of the Poor borrowed money from A B for purposes connected with the building of a workhouse, and by deed executed in that year created a charge for the sum borrowed on the future poor rate, and it provided that this principal sum should be repaid by equal annual instalments within twenty years, the first instalment with interest to be paid at the expiration of one year from the date of the deed. The deed of charge provided for interest at the rate of 6 per cent., to be reduced to 5 per cent. on punctual payment. In 1872 A B who had advanced the money as trustee for the plaintiffs assigned to them. The Guardians never paid any instalment of the principal money mentioned in the deed, but paid interest up to the 26th June, 1895. Since that date they declined to pay either principal money or interest, except under judgment of the Court: Held, that the non-receipt of any instalment of the principal money, both parties believing it might be held over, did not constitute lathes on the part of the plaintiffs, and that the sum borrowed and secured by the indenture of charge should be declared well charged on the rates, and that a mandamus should issue directing the Guardians to raise the principal sum and interest, and if necessary, to strike a rate to pay the same. •VoL. I.] CHANCERY DIVISION. 273 TRIAL OF ACTION, M. R. By indenture dated 26th July, 1851, and made between the 1896. Guardians of the Poor of the Clonmel Union of the one part, and HILL Thomas Hughes of the other part, it was recited that by an order GUARDIANS, dated 18th March, 1839, the Poor Law Commissioners did order CIINiONLONDSEL and declare that certain townlands in the schedule thereof named should be united for the relief of the destitute poor by the name of the Clonmel Union, and it was further recited that one work-house was ascertained not to be sufficient for said Union, and that by an order of the Poor Law Commissioners, dated 11th March, 1851, setting out that it was expedient that a further sum of £10,000 should be expended, it was ordered that the Guardians should borrow the said sum pursuant to the provisions of 1 & 2 Viet. c. 56, and the Acts amending same, and should charge the same, together with all interest that might accrue thereon, on the future poor-rate of the said Union. The indenture, after reciting that Thomas Hughes had agreed to lend £I000, part of the said sum of £10,000, witnessed (after acknowledging the receipt of said sum) that the said Guardians in pursuance of 1 & 2 Viet. c. 56, and the Acts amending the same, and in pursuance of the order of 11th March, 1851, and of every other power enabling them in that behalf, did thereby subject and charge all and every the rates which should or might at any time or times thereafter be raised or otherwise become payable for the relief of the destitute poor of the Clonmel Union, with the payment unto the said Thomas Hughes, and to his executors, administrators, and assigns, of the said sum of £1000, by twenty equal annual payments or instalments of £50 each, the first of same, together with interest, at the rate thereinafter mentioned, upon the entire sum of £1000, to be paid at the expiration of one year from the date thereof, and the second and every succeeding instalment, with the interest then due on the residue of the sun' of £1000 then remaining due and unpaid, to be paid at the expiration of one year from the time therein appointed for payment of the next preceding instalment, until the whole of said principal sum of £1000, and interest should be repaid. The indenture provided for interest at the rate of 6 per cent. per annum, to be reduced to 5 per cent. on punctual payment as therein mentioned. The indenture contained a power Y2 274 THE IRISH REPORTS. [1897. M. R. for the Guardians to pay off said sum at an earlier date on giving 1896. the notices therein mentioned. HILL The Guardians never paid any of the instalments of principal GUARDIANS, mentioned in the deed, but satisfied the interest on foot thereof up CLONMEL to 26th June, 1895. UNION. On 30th April, 1872, Thomas Hughes, who had originally advanced the sum of £1000 as a trustee for the plaintiffs, assigned all his interest in same under the deed to them, and since that date till 26th June, 1895, the plaintiffs received the interest, having duly given notice of the assignment to the defendants. In 1895 the Guardians raised a question as to their liability to repay the principal sum of £1000, or any portion of their loan, on the ground that same was payable by instalments and the time for payment thereof had long since passed. Since that date they declined to pay either principal or interest, save under the judgÂment of the Court. The plaintiffs claimed to have it declared that the sum of £1000, and such interest as should be found due thereon, secured by the deed of 26th July, 1851, was well charged on the rates leviable for the relief of the poor of the Clonmel Union. They also claimed a mandamus directed to the defendants to pay the debt of £1000 and interest thereon, and if necessary to strike a sufficient rate to pay the same. They also claimed what was due for principal and interest, and judgment for the sum so found to be due. By their statement of defence the defendants stated that the entire sum of £10,000 mentioned in the order of 11th March, 1851, was borrowed as provided by the statute 1 & 2 Viet. c. 56. They also stated that £1820, part of the £10,000 had been repaid, and that the period for raising the balance by instalments had long since elapsed. They alleged that they had now no power of raising and paying any part of the loans by instalments, the statutable period for doing so having elapsed, and that the charge-ants, being in receipt of a large interest on the loans, neglected to call in any part of same during the period prescribed by the statute. Paragraphs 4 and 5 of the statement of defence were as follows :— (4) The present ratepayers object to the burden of said Von. I.] CHANCERY DIVISION. 275 loans being cast on them, and the defendants submit to the judg- M. R. ment of the Court whether the statutory power of the defendants 1896. to raise a rate for the payment of said principal sum of £1000 L'. . and interest has not expired. (5) The defendants further submit GUARDIANS, that the plaintiffs, in the events which have happened, and havin g Uxrox Cxfox.. regard to the period which has elapsed and the laches of the said plaintiffs, are not entitled to the relief sought for. Piers White, Q.C. (with him Ronan, Q.C., and Henry, Q.C.), for the plaintiffs : The legal question raised by the pleadings is whether the Poor Law Guardians are justified in repudiating liability on the security held by the plaintiffs. We submit they are not. The defence rests on a misunderstanding of The Queen v. The Churchwardens of All Saints, Wigan (1). In that case there was no general charge upon the rates. As to the general principle applicable see Rex v. Carpenter (2) ; Reg. v. St. Michael's, Southampton (3). And in Reg. v. Hurstbourne Tarrant (4) it was decided that a charge under 6 & 7 Wm. 4, c. 96, s. 3, being a charge on the rates generally, might be enforced against the rates at a time subsequent to that specified...