RORKE v ERRINGTON. [H.of Lords.]

CourtHouse of Lords (Ireland)
Judgment Date05 July 1859
Date05 July 1859

H.of Lords.


Annesley v. Dixon Holtƒ€™s Rep. 372.

Bunbury v. FullerENR 9 Ex. 111.

Crisp v. BunburyENR 8 Bing. 394.

Canal Company v. WheelyENR 2 B. & Ad. 973.

Blackmore v. The Glamorganshire Canal Company 1 My. & R. 162.

Ellis v. Segrave 7 B. P. C. 331.

Dowtieƒ€™s case 2 Co. R. 25.

Youde v. JonesENR 13 M. & W. 534.

COMMON LAW REPORTS: 357 1859. 11. of Lords. 3ovE*0 of torlic RORKE v. ERRINGTON. July 5. FdRBES JOHNSON appeared a& Counsel for the plaintiff hi: A, seised in error, and contended for the three following propositions : fee-simple of - the townlancl First.--.-That the Commissioners had, nojurisdictiorr to self of M. demises am twenty acres of estate of inheritance which is not incumbered. it to B, for three lives. Secondly.--That the interest of John Rorke in the lease of the Afterwards the creditors of 9th of March 1822 formed no part of the incumbered estate A present a petition in the of inheritance which was sold to the defendant in error, and, Incumbered Estates Court that the adjudication in favour of the lease is final arid con- in Ireland, for the sale of M. elusive: Pursuant to a notice served Thirdly.-That the deed of conveyance of the 29th of July 1853 on B, by the is not an execution of the power created by the 36th section of Cerosmfonaritslisieonsa-le the Act, and that, therefore, as to the " locus in quo," the reversion tial it ecznabhereed only, passed by said deed. brings his lease into Annesley v. Dixon (a) is an authority for the first proposition. Court, and has it proved in Mr. Justice Gould says (p. 388), " I am of opinion that no Act the cause, and the particulars " of Parliament can vest lands in another, without express wordy ; of it entered in the " printed '' and this, at most, is by implication, which is not sufficient."- rental." The lands are ad [LORD CAMPBELL. By the statute of W. 3, the legal estate in the vertised to be sold subject to forfeited lands was vested in the trustees. I have read' Mr. the lease. C becomes the Justice Crampton's judgment, and he relies on that fact to show purchaser. that Annesley v. Dixon is not an, authority. The for you. Is not that a lands areconveyed to satisfactory distinction ?] him, without mentioning It is a mere verbal criticism, and unfounded in principle. That the lease in the schedule at- Mode of conveying the legal estate was rendered necessary, other_ tacked to the conveyance.- wise the traitors would have conveyed their estates to trustees Held, (affirm. ing the deci sion of Exche quer Chamber in Ireland), that C took the lands discharged of the lease. NoTE.-The facts are fully set forth ante, vol. 6, p. 279. (a) Holt's Rep. 372. vox,. 9. 46 L 358 COMMON LAW REPORTS, 1859. for themselves, or sold them before they were found traitors by H. of Lords. inquisition, and the intentions of the Legislature would thus have BORE been completely defeated. The object, therefore, in vesting the v. ERRINGTON. legal estate in the trustees, was to give them entire control over it. This is done by the powers of sale in the Act of Vie., without vesting the legal estate in them ; and if the words of each Act of Parliament embrace the same object, how can they point to a different principle ?-[Loan CAMPBELL. Your contention is, that the words of both Acts of Parliament are governed by the same principle of law ; what is that principle ?]---It is "verba generalia, restringuntur ad habilitatem rei vel personam." In Annesle,y Dixon, that part of the Act upon which the purchaser rested, his claims was the general words of the 16th and 25th sections. In the present case the defendant in error rests his claims on similar. words in the 27th and 49th sections of the Act of Vic. Now, it is submitted, that as the general words in the Act of W. 3 did not enable the purchaser to recover the lands in dispute in Annesley v. Dixon, neither ought the general words in this Act entitle the defendant in error here to succeed. The fact upon which Judge Crampton and the other learned Judges relied, as taking the present case out of the authority of Annesley v. Dixon, cannot be traced to any principle ; and we, in the discussion of legal questions, have nothing to do with facts, only as they are finger-posts to principles. --[LORD CAMPBELL. Annesley v. Dixon is a very proper case to refer to ; and admitting it to be an authority for the first proposition, how do you show that the Commissioners have no jurisdiction over. an interest derived out of the inheritance, as your client's lease is ?]-That question will be discussed when considering the second proposition. In Bunbury v. Fuller (a), which arose out of an Act passed in the reign of W. 4, entitled " For the Commutation of Tithes in England and Wales," Mr. Justice Coleridge, in delivering the unanimous judgment of the Court, said, " It is a general rule "that no Court of limited jurisdiction can give itself jurisdicÂÂ" tion by a wrong decision, on a point collateral to the merits of (a),9 Ex. 111. COMMON LAW REPORTS. 359 r" the case, Upon which the limit to its jurisdiction ; depends and 1859. of Lords. " however its decision may be final on all particulars, making H. " up together that subject-matter which, if true, is within its RORKE v. " jurisdiction ; and however necessary, in many cases, it may ERRINGTON. " be for it to make a preliminary inquiry whether some collateral " matter be or be not within the limits, yet, upon the preliminary " question, its decision must always be open to inquiry in the SupeÂÂ" rior Courts." As to the second proposition, it is to be observed that, by the 10th section, the Commissioners are authorised " to make such general rules " as they may think best adapted for regulating the course of proemÂÂ" dure under this Act," and " every such general rule shall be binding " on the Commissioners in exercise of their powers, and shall be of " the same force and effect as if the same had been enacted by " the authority of Parliament." The Commissioners, in pursuance of this section of the Act, made the following rule, viz., 13th, "That "on the order for a sale being made absolute, a notice shall be " circulated among the tenantry, or persons residing on the proÂÂ" perty, according to a printed form to be approved of by the " Commissioners, specifying the tenancies, leases and agreements " which are admitted," &c. In accordance with this rule, the ComÂÂmissioners caused a notice to be served on the plaintiff in error, sealed with the seal of their Court, in which they admitted his lease to be valid and subsisting. Now, this notice springs from the rule, and the rule from the 10th section of the Act, which declares that the rule, i. e., everything done in pursuance of the rule, " shall be binding on them in the exercise of their powers ;" therefore, this notice is, by the Act, made binding on them. By the 23rd section (which is intended solely for the benefit of the tenant) it is enacted " that the Commissioners shall, where and " so far as they may deem necessary, ascertain the tenancies of " the occupying tenants," and " the sale shall be made subject to the tenancies ascertained as aforesaid." Now, the Commissioners have here given them a discretionary power as to the ascertaining the tenancies, for the words are "so far as they may deem necesÂÂsary ;" but when they haves in fact ascertained a tenancy, they 38,0 COMMON LAW REPORTS. must sell the lands subject to that tenancy, for the language of the Act is, " the sale shall be made subject," &c. This word "shall" is here used in an imperative sense, and if so, they have no jurisdiction to sell the estate discharged of the lease: Crisp v. Banbury (a).-[LORD BROUGHAM. I think the Legislature did not intend to use that word " shall " in an imperative sense].-If your Lordships will construe the word in an imperative sense, you then give the statute a meaning consistent with liberty and justice; you then give the tenant power to protect his own interests. Is it conceivable that Parliament intended to deprive...

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