Irish Land Commission v Viscount Massereene and Ferrard

• Jurisdiction: Ireland
• Judgment Date: 26 February 1904
• Date: 26 February 1904
• Docket Number: (1903. No. 13,405.)
• Court: King's Bench Division (Ireland)

Irish Land Commission

and

Viscount Massereene and Ferrard (1).

K. B. Div.

(1903. No. 13,405.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1904.

Variable rent — Irish Land Act, 1903 (3 Edw. 7, c. 37), s. 90 — First gale to which the statute applies — Church Temporalities Acts — Tithe Rentcharge (Ireland) Act, 1900 (63 & 64 Vict. c. 58), ss. 2, 3 — Construction of statutes — Whether retrospective — “Gale of rent” — “Accrued due” — Apportionment Act, 1870 (33 34 Vict. c. 35), s. 2.

Sect. 90 of the Irish Land Act, 1903, enacts that “where, by reason solely of the non-publication of the average prices of produce in the Dublin Gazette, it has become impossible, in the absence of other provisions, to determine the amount by which any variable rent, calculable upon an average of prices, should be varied, sections 2 and 3 of the Tithe Rentcharge (Ireland) Act, 1900, shall apply as from the commencement of this Act in the case of such variable rents, and the words tithe rentcharge in the said sections shall be deemed to include any variable rent as aforesaid.” Section 102 enacts that the Act shall come into operation on the 1st November, 1903. Section 3 of the Tithe Rentcharge (Ireland) Act, 1900, enacts that during the period of fifteen years dating from the 1st November next after the passing of the Act, the sum payable in respect of every gale accruing due after that date of any tithe rentcharge shall be deemed to be varied in accordance with the provisions therein mentioned.

The defendant held certain lands under a perpetuity grant, made pursuant to the Church Temporalities Acts, at a variable rent, payable quarterly on the 1st February, 1st May, 1st August, and 1st November:—

Held, that sect. 90 of the Irish Land Act, 1903, did not apply to the gale of rent falling due on the 1st November, 1903, and that the defendant was not entitled to a variation in respect of the quarterly gale which fell due on that date.

Special Case stated under Order XXXIV. for the opinion of the Court on a question of law arising in the action. The action was brought for the recovery of the sum of £434 8s., the amount of three quarterly gales of rent payable under a perpetuity grant on the 1st May, 1903, 1st August, 1903, and 1st November, 1903,

respectively. The question involved was with respect to the last-mentioned quarterly gale, viz. that payable on the 1st November, 1903.

The following are the material facts and statutes, as set out and referred to in the special case:—

By a grant in perpetuity, dated the 21st day of March, 1872, and made between the Commissioners of Church Temporalities in Ireland (hereinafter called the Commissioners) of the one part, and the Right Hon. Clotworthy John, Viscount Massereene and Ferrard (hereinafter called the grantee), the defendant in this action, of the other part (being a grant made pursuant to the provisions of the Church Temporalities (Ireland) Acts), certain hereditaments in the county of Antrim were granted unto the grantee, his heirs and assigns for ever, subject to the yearly rent of £579 4s. 1d., or such increased or diminished yearly rent or sum as should from time to time thereafter be substituted therefor pursuant to the provisions of the said Acts, the said reserved yearly rent, or such increased or diminished yearly rent so to be substituted as aforesaid, to be paid and payable by four quarterly payments on every 1st day of February, 1st day of May, 1st day of August, and 1st day of November in each and every year, clear over and above all taxes and impositions whatsoever. And the grantee covenanted with the said Commissioners and their successors to pay the said yearly rent, or such other rent as should or might be substituted therefor, upon and at the dates and times before mentioned as the same should become due and payable. The grant contained a declaration that the Commissioners had, pursuant to the provisions of the said Acts, calculated and ascertained upon the returns advertised in the Dublin Gazette for a period of ten years immediately preceding the 1st of May, 1871, the average price of oats, being the corn principally grown in the said county of Antrim, for the said period of ten years, and had ascertained said average price to be fourteen shillings and one penny per barrel, and that the Commissioners had, at the request of the grantee, directed the said average price of fourteen shillings and one penny per barrel to be inserted in the said grant pursuant to the provisions of the said Acts.

By section 142 of the 3 & 4 Wm. 4, c. 37 (being one of the said Temporalities Acts), it was enacted that at any time within four months from the expiration of seven years, to be computed from the 1st of May next preceding the execution of any grant made pursuant to the provisions of the Church Temporalities Acts, and in like manner at any time within four months after the expiration of every subsequent period of seven years, it should be lawful for the grantor or grantee respectively under the said grant to apply to have the rent varied in the manner prescribed by the Act according to the average price of wheat or oats for the term of seven years next preceding the 1st of May next before the application. Such average price to be ascertained from the Dublin Gazette.

By virtue of the Irish Church Amendment Act, 1881, and of an Order in Council made under the provisions thereof, and dated the 12th day of September, 1881, all lands, tenements, and hereditaments, and every estate and interest therein belonging to the said Commissioners of Church Temporalities, did, on the 13th day of September, 1881, become, and at time of action brought were, vested in the plaintiffs the Irish Land Commission as in the said Act is set forth, and the plaintiffs became on the said date, and at the time of action brought were, entitled to the benefit of all covenants, conditions, or agreements, express or implied, in relation to the premises so transferred, and to maintain all actions, suits, and other proceedings grounded thereon in their own name.

No variation was ever made in respect of the rent reserved by the said grant pursuant to the provisions of the said Church Temporalities Acts.

From the 1st of September, 1887, the Dublin Gazette ceased to publish returns showing the average prices of corn in Ireland.

By the Irish Land Act, 1903, section 90, it was enacted as follows:—“Where, by reason solely of the non-publication of the average prices of produce in the Dublin Gazette, it has become impossible, in the absence of other provision, to determine the amount by which any variable rent, calculable upon an average of prices, should be varied, sections 2 and 3 of the Tithe Rent-Charge (Ireland) Act, 1900, shall apply as from the commencement of this Act in the case of such variable rents, and the words ‘tithe rent-charge’ in the said sections shall be deemed to include any variable rent as aforesaid.”

By section 102 of the Irish Land Act, 1903, it is enacted that the Act shall come into operation on the 1st of November, 1903.

The material portions of section 2 of the Tithe Rentcharge (Ireland) Act, 1900, referred to in section 90 as aforesaid, are as follows:—“2. (1.) As soon as possible after the passing of this Act the Land Commission shall ascertain, from the appendices to their reports as presented to Parliament in pursuance of section fifty-five of the Land Law (Ireland) Act, 1881, by what amount in each county during the period commencing with and including the year covered by the annual report, dated the twentieth day of September, one thousand eight hundred and eighty-six, and ending with that presented last before the passing of this Act, the rents of holdings in respect of which judicial rents have been fixed for a first statutory term, whether by order or by agreement, have for the entire of such period been varied by the fixing of such judicial rents, and shall certify the average percentage which such variation represents.” “(2). The Land Commission shall similarly ascertain and certify for each county in respect of every subsequent period of fifteen years, the average percentage of variation of judicial rents payable during a second or subsequent statutory term as compared with the judicial rents payable during the last preceding statutory term.”

Section 3 of the Tithe Rentcharge (Ireland) Act, 1900, referred to in section 90 as aforesaid, is as follows:—“3. (1.) During the period of fifteen years dating from the 1st day of November next after the passing of this Act, the sum payable in respect of every gale accruing due after that date of any tithe rentcharge, payable out of hereditaments situate in any county, shall be deemed to be varied from the amount at which it stood on the twenty-second day of August, one thousand eight hundred and eighty-four, in accordance with the average percentage of variation of rents declared by the certificate of the Land Commission to have taken place with respect to such county by the fixing of judicial rents for a first statutory term, and shall be payable accordingly.” “(2). During each subsequent period of fifteen years the like variation shall be deemed to be made in all tithe rentcharges from the amount at which they respectively stood immediately before the...