Re Duggan's Estate

• Jurisdiction: Ireland
• Judgment Date: 21 December 1899
• Date: 21 December 1899
• Court: Court of Appeal (Ireland)

IN RE DUGGAN'S ESTATE

Appeal.

Tithe rentcharge — Deduction of poor-rate from — 1 & 2 Vict c. 56, s. 76 —

Harris v. DarnleyUNK 30 L. R. Ir. 371.

Irish Land Commission v. Grant 10 A. C. 14.

Malton v. WestUNKIR I. R. 11 C. L. 325.

Malton v. WestUNKIR I. R. 11 C. L. 525.

Mundy's EstateIR [1899] 1 I. R. 191.

68 THE IRISH REPORTS. [1900. Appeal. referred to by counsel, and which seems to me to be inconsistent 1899. with the decision, for I cannot distinguish the two cases on the MoNcfc grounds that in the former the contingency of the second legatee's CHOKER. taking is not actually expressed, seeing that it is clearly implied Holmes, L.J. in the language of the gift. On the whole, while hesitating to express dissent from the judgment of the Court in so doubtful a case, I feel bound to say that my opinion concurs with that of the Vice-Chancellor. Solicitor for the appellants : H. F. Martley. Solicitors for the respondents : Maxwell, Weldon 8f Co. Solicitor for the trustees : J. E. Mac Dermot. G. Y. D. Appeal. IN RE DUGGAN'S ESTATE (1). 1899. Dec. 20, 21. Tithe rentcharge—Deduction of poor-rate from-1 (5- 2 Vict. e. 56, s. 76—Local Government Act, 1898 (61 4. 62 Vict. c. 37), s. 54. The owner of tithe rent-charge is not entitled to claim payment without deduction of poor-rate. ON the 1st November, 1899, the Irish Land Commission sent out receivable orders with respect to tithe rentcharge to the tithe payers by which the Land Commission claimed payment in full without making any deduction for poor-rate. One of these orders was sent to the receiver appointed by the Court over the lands in this matter, demanding payment of tithe rentcharge payable in respect of the benefice of Loughbracken in the county of Meath. He declined to pay, without any deduction for poor-rate, withÂout the sanction of the Court. The Land Commission then applied to Ross, J., for an order that the receiver should pay to them the sum of £12 7s. 11d., being the amount of the tithe VoL. I.] CHANCERY DIVISION. 69 rent-charge without any deduction. On the 23rd November, 1899, Appeal. Ross, J., refused the application, and the Land Commission appealed 1899. In re DUGGAN'S ESTATE. appellants : Poor-rate, as it existed before the passing of the Local GovernÂment Act, does not now exist. Down to the passing of that Act there were in the country two main taxes—poor-rate and county cess. The total of the poor-rate taken off agricultural land in the standard financial year was £633,461, and the total county cess was £821,849: see Vanston on the Local Government Act, p. 457. These two are now collected together under the name of poor-rate in accordance with the provisions of the Local Government Act. The poor-rate levied under 1 & 2 Vict. c. 56, was by section 61 of that Act to be applied solely for the relief of the destitute poor ; the new rate under the Local Government Act is not a rate to be applied exclusively for that purpose, but it includes taxes which are to be applied for other purposes. When the Local GovernÂment Act was being passed the Legislature had to consider whether, for the purpose of collecting the new rate, it would adopt the machinery of the Poor Law Act or of the county cess, and they adopted the poor-rate system as applicable to the whole. The new rate imposed was called " poor-rate," and by sections 4, 5, 6, and 28, the power of levying and collecting poor-rate was transÂferred to the County Councils and Urban District Councils. The old poor-rate is gone, and there is nothing for section 76 of 1 & 2 Vict. c. 56, to operate on. It could not have been intended that the tithe-payers were to be entitled to deduct both poor-rate, as it existed before 1898, and county cess. Poor-rate under the Local Government Act is the one tax payable, and the expenses of the County Councils are to be paid out of the consolidated rate ; it is essentially different from the old poor-rate. It is impossible to segregate the poor-rate under the Local Government Act, so as to obtain any tax that will represent the old poor.rate. Union charges comprise a portion only of the old poor-rate ; District charges comprise some of the components of the old poor-rate and certain other taxes, while County charges correspond in a general way with county cess. 1900—VoL. I. Or 70 THE IRISH REPORTS. [1900. Appeal. As between landlord and tenant, the tenant was entitled to 1899. deduct half the poor-rate under section 74 of 1 & 2 Vict. c. 56. In ", That section is repealed. As to other Acts passed between 1838 DUGGAN S ESTATE. and 1898, which added certain rates to the poor-rate, some of them entitled the deduction to be made, some were silent on the subject, and others prohibited the deduction. Halton v. West (1) decided that if the Act imposing the rate was silent on the subject, the tenant was entitled to deduct. By sect. 52 of the Local Government Act the occupier of a hereditament is not entitled to deduct from his rent any part of the poor-rate : why should tithe rent-charge be the sole exception ? Again, tithe rent-charge is rent within the meaning of sect. 74 of 1 & 2 Vict. c. 56 : Harris v. Darnley (2) ; Irish Land CommisÂsion v. Grant (3). But sect. 72 of I & 2 Vict. c. 56, is among the clauses repealed by Sch. VI., Part 4, to the Local Government Act, and so sect. 76 of the Poor Law Act must be taken to be impliedly repealed Matheson, Q. C., and F. P. Hamilton, for the receiver : We submit that tithe-payers are entitled to deduct the entire of the new poor-rate ; and, if not, they are entitled to deduct such portion of it as will now represent the old poor-rate. Section 76 of 1 & 2 Yid. c. 56 has not been repealed by Schedule VI., Part 4, of the Local Government Act, though several other sections of the Poor Law Act in close proximity to sect. 76 have been repealed as stated in that schedule. That was not the result of an accident, but it was done deliberately, and section 76 must have some subject-matter upon which it can operate, as was decided by Ross, J., in Mundy's Estate (4), and that subject-matter must be the poor-rate under the Local Government Act. There is only the one poor-rate, and that is the rate struck under 1 & 2 Vict. e. 56 ; the power to levy it was first conferred by sect. 61 of that Act. The body to levy it is changed, and the jurisdiction to levy it is transferred to the County Councils and District Councils. But between 1838 and 1898 a large number of rates and taxes were imposed by various statutes, which provided that the rates (1) I. R. 11 C. L. 525. (3) 10 A. C. 14. (2)...