Re Madden's Estate

• Jurisdiction: Ireland
• Judgment Date: 12 December 1901
• Date: 12 December 1901
• Court: Court of Appeal (Ireland)

IN RE MADDEN'S ESTATE

Appeal

Practice — Costs — Liability of the Crown — 18 & 19 Vict. c. 90, ss, 1, 2

Attorney-General v. AshburnhamENR 1 Sim. & S. 394.

Beadle's CaseENR 7 El. & Bl. 492.

Chubb's CaseUNK 43 L. T. (N. S.) 83.

Dublin, Wicklow, and Wexford Railway CompanyUNK 31 L. R. Ir. 1.

Foster v. Great Western Railway CompanyELR 8 Q. B. D. 515.

Galvin's CaseIR [1897] 1 I. R. 520.

Garnett v. Bradley 3 A. C. 944.

In re Wood's Estate, Wood's EstateELR 31 Ch. D. 607.

In re Wood's EstateELR 31 Ch. D. 607.

Lord Advocate v. Hamilton 1 Mac Q. 46.

Mill's EstateELR 34 Ch. D. 24.

Mills' Estate, Ex parte Commissioners of WorksELR 34 Ch. D. 24.

Moore v. Smith 1 Ell. & Ell. 597.

Re Dublin, Wicklow, and Wexford Railway CompanyUNK 31 L. R. Ir. 1.

Reg. (County Council of Wexford) v. Local Government Board Unreported

Reg. (Moore) v. AbbottIR [1897] 2 I. R. 424.

Reg. v. Beadle, Beadle's CaseENR 7 El. & Bl. 492.

Reg. v. BeadleENR 7 El. & Bl. 492.

Secretary for War v. BoothIR [1901] 2 I. R. 692.

Secretary of State for War v. BoothIR [1901] 2 I. R. 692.

Smith v. Earl of Stair 2 H. L. Cas. 807.

Vernon's EstateIR [1901] 1 I. R. 1.

Wicklow and Wexford Railway; Ex parte JordanUNK 31 L. R. Ir. 1.

Wood's Estate, Wood's CaseELR 31 Ch. D. 607.

Wood's EstateELR 31 Ch. D. 607.

VOL. I.] CHANCERY DIVISION. 63 IN RE MADDEN'S ESTATE (1). Appeal. 1901. Practice—Costs—Liability of the Crown-18 4r 19 Vict. c. 90, as. 1, 2. Dec. 4, 5, 12 The Crown is not liable to pay costs under the Crown Suits Act (18 & 19 Vict. c. 90), unless the action, or proceeding, by, or on behalf of, the Crown, is taken in the name of the Attorney-General. Reg. v. Beadle (7 E. & B. 492) and Secretary for gror v. Booth ([1891] 2 I. R. 692) approved of and followed. THE petition was filed by an incumbrancer for the sale of cerÂtain lands in the barony of Tirawley and county of Mayo. In the course of the proceedings notice was served on the Commissioners of Woods and Forests, in case there was any quit rent claimed as payable to the Crown. The Commissioners of Woods and Forests claimed the estate on the ground that these lands were, and had come, under the Irish Act of Settlement, and that the Crown had never granted these lands by patent, or otherwise. The lands were held under Church leases, but there was no lease forthcoming of the portion of the lands in question prior to 1853, although that lease was stated to have been made partly in consideration of the surrender of a former lease, though no such former lease was produced. The petitioners then produced two old maps, made for the Bishop of Killalla, to prove that the owners, or their predecessors in title, had been in possession for more than sixty years. Ross, J. admitted these maps in evidence, and held that the owners had a good title. The Commissioners of Woods and Forests appealed against this decision, and for the purposes of the appeal the respondents filed two affidavits made by tenants on the lands to show that the owner's possession went back for a period longer than sixty years. The appellants being then satisfied that they could not dispute the title, served notice of inÂtention to withdraw the appeal, without paying costs. The responÂdents disputed their right to do this. (1) Before FITZ GIBBON, WALKER, and HOLMES, L.JJ. G2 64 THE IRISH REPORTS. [1902. Campbell, S.-G., and Garrett Walker, for the Commissioners of Woods and Forests : The practice in equity originally was that the Crown could get costs, though not liable to pay them : Attorney-General v. AshÂburnham (4). The Court has jurisdiction to make a party pay the Crown its costs under 59 Geo. 3, c. 91: Lord Advocate v. HamilÂton (5) ; Smith v. Earl of Stair (6). The Crown Suits Act of 1855 is confined to proceedings in which the Attorney-General sues : Reg. v. Beadle (7) ; Secretary for War v. Booth (8). In Galvin's Case (9) the question never arose. In Wood's Estate (2) the Crown were held liable for costs, because (1) 31 L. R. Ir. 1. (6) 2 H. L. Cas. 807. (2) 31 Ch. D. 607. (7) 7 El. & Bl. 492. (3) 3 A. C. 944. (8) [1901] 2 I. R. 692. (4) 1 Sim. & S. 394. (9) [1897] 1 I. R. 520. (6) 1 Mae Q. 46. VOL. I.] CHANCERY DIVISION. 65 the Lands Clauses Acts were incorporated with the other statutes. Appeal. The object of the Judicature Act was to regulate Courts and pro- . 1901 cedure, and it does not impose any new liability as to costs which IfIn re .DDEN't3 did not previously exist, or give any new jurisdiction to award EST1TE. costs : Mills' Estate (1). FITZ GIBBON, L.J. :— Dec. 12. The question which we have now to decide was twice previously raised in this Court, but on each occasion the Treasury agreed to pay. The way in which it has now arisen is this. Under the Rules of the Land Judge's Court, notice was served on the Commissioners of Woods and Forests that certain lands were about to be sold. This notice was given lest there might be some claim for quit rent payable to the Crown. Not content with discharging their duty to look after quit rent, the Commissioners put forward a claim that the lands were Crown property, and that the owner had no title. The Land Judge could proceed no further until this claim had been investigated, and the petiÂtioner was obliged to bring it up for consideration. The owner's estate was held under Church leases ; he naturally relied on these as a sufficient root of title. But because the existing leases (though probably renewals) were not sixty years old, the Commissioners contended that they showed no title against the Crown. The owner then put in evidence, as proof of prior possession, two ancient maps. Such maps do not, by our strict law...