Magner, Tenant; Hawkes, Landlord (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1900
• Date: 01 January 1900
• Court: King's Bench Division (Ireland)

Magner, Tenant;

Hawkes, Landlord (No. 2).

Vor.. II.] QUKO'S BKNCH DIVISION. 465 under whom she serves. No doubt she is under authoritythe Appeal. , authority of the Mother Superior, the authority of the Bishop of______1 the Diocese, and the supreme authority of the Church ; but it 1,A |-N0-V would seem to me that, except, perhaps, in the case of the Mother Haxuahan. Superior, this authority is of a judicial character, and bears no Holmes, L.J, analogy to that of a master over a servant. The Mother (Superior probably conies nearer to what the section has iu contemplation, but even as to her, I can hardly believe that the Legislature intended to describe her as a person under whom a Sister of Mercy serves. Solicitor for the appellant: Henry Murphy. Solicitor for the respondent : C. Fulls. 11. D. M. MAGNEB, Tenant; IIAWKES, Landlord (No. 2) (1). Appeal. 1899. Landlord and tenantLand Law (Ireland) Act, 1896, sect, oCharacter of Hay 10,11. ; ; ; 71 ,7 June 22,28. liabilityDemesne land. By lease dated tlie 10th January, 1702, the lands of K., in the county of Cork, comprising- 204 acres, were demised hy It. T. to W. 0. for 990 years, -ubjeet to the yearly rent of £126 16s. The lessee's interest had been in the possession of the H. family for a great number of years, and the premises consisted of a handsome house, a garden, and out-offices, and there was ornamental timber in the lawn and on both sides of the house. In 1868 the place was in the possession of Captain S. H., who by will devised all his property to trustees, upon trust as to the said lands, after providing a jointure for his widow, for his son John If. on his attaining twenty-one, but in ease lie died under twenty-one, then to his two daughters, May and Frances, as tenants in common, to become vested on their attaining twenty-one ; in case of the death of one, then the whole to the survivor ; and in case of the death of all his children before attaining age, the testator left all his property to his brothers J. D. II. and R. N. H. The testator empowered his trustees to make leases of all his lands for any term consistent with the term (1) Before Lord Ashbourne, C, Sir P. O'Bui en, L.C.J., Pai.i.f.s, C'.l!. V\t/. Oibbox, Walker, and Holmes, L.J J. 1900Vol. II. 2 / 46(1 XIIK IRISH REPORTS. [1900. Appeal. 1899. Magnkk, Tenant ; Hawk us, landlord. for which the same were held, at the best and most improved rent ; and he made his wife and his trustees executors. Captain S. TT. died in Dec, 18G8, and Mrs. II. alone proved the will. On the 11th May, 1872, Mrs. H. made a lease of the house and lauds to J. D. II., her brother-in-law, for thirty-live years, at £310 a year. J. 1). H. was a gentleman farmer. He subsequently got into financial difficulties, and died in 1883. The lessee's interest under the lease of the 11th May, 1872, was sold, and bought by M. for £1100. In 1SS7 M. served a notice to fix a fair rent, which was dismissed on the ground that the holding was demesne land. On appeal to the Land Commission this decision was affirmed, and the tenant appealed to the Court of Appeal, who dismissed the appeal. After the passing of the Land Law Act, 1890, he served a fresh originating notice : Held (affirming the decision of the Land Commission) that "when first demised" in sect. 5, sub-sect. (1) (b) (ii), of the Land Act, 1896, meant first demised in relation to the tenancy the owner of which was seeking to fix a fair rent : Held also, by the Lord Chancellor, the Lord Chief Justice, the Lord Chief IJaron, and Holmes, L.J. (Fitz Gibbon and "Walker, L.JJ., dissenticntibiis), that the circumstances of the case showed an intention that the lands should be preserved as demesne. On the 5th July, 1890, the Land Commission dismissed an originating notice served by the tenant of the holding on the ground that the lands were demesne lands. On the 24th June, 1891, the Court of Appeal affirmed this decision. The facts are fully reported, 32 L. Ii. Ir. 285. After the passing of the Land Law Act, 1896, the tenant served a fresh originating notice, and the Laud Commission, on the 25th March, 1899, hold that the lands were demesne lands, reversing the decision of the Sub-Commission. From that order the tenant appealed. The case was argued on the 10th and 11th May, 1899, before Fitz Gibbon, Walker and Holmes, L.JJ., by Sul/iraii, Q.C. and Ileal;/, Q.C, on behalf of the tenant, and Matlivmn, Q.C, for the landlord. At the conclusion of the argument the Court reserved judgment, and subsequently required the case to be re-argued. On the 22nd June, 1899, it was re-argued by Ileal;/, Q.C. aud Wahli/, Q.C, on behalf of the tenant, and Malhcwn, Q.C and Cole-Bou-cn on behalf of the landlord. Vol. II.] Q (J KEN'S BUNCH DIVISION. 467 The facts appear sufficiently from the judgments and from the previous report, 32 L. It. I. 285. Lord Ashrournk, C. : This is an interesting case, the name and facts of which are familiar to us. It came before this Court eight years ago, and upon that occasion we had many of the topics discussed which we have beard to-day. It was pointed out, then as now, that when first demised, the TIawkes family were not the owners in fee, and it was argued that that was enough to displace their rights to have the lands held to be demesne lands. We over-ruled that objection, aud decided that the lands were demesne lands, though the Hawkes family held them, not as owners in fee, but for the residue of a long term of years created in 1752. The Hawkes family had made them demesne lands, and they were let as such by Mrs. Hawkes, when she made the letting in 1872, to John Devonshire Hawkes, whose interest Magner had bought. That was the view of all the members of the Court, except Fitz-Gibbon, L.J., who dissented from the other Judges, when the case was before us in 1891. If nothing further had occurred since then, there would be nothing further to say. But it has been argued that in consequence of a change iu the law by the Act of 1896, with respect 1o demesne land, our former decision is no longer binding, and ! hat the tenant has a right to have a fair rent fixed in consequence of sect. 5 of the Act. The portion of sect. 5, to which cur attention has been directed is sub-sect. 1 (l ) (ii)" land which when first demised was demesne, and which the provisions of the contract of tenancy, or the circumstances of the case, show was intended to be preserved as demesne or resumed as demesne by the landlord," Of course the counsel for the tenant, Mr. Healy and Mr. Wakely, urged both...