Shearman v Kelly
| Jurisdiction | Ireland |
| Judgment Date | 18 February 1878 |
| Date | 18 February 1878 |
| Court | Chancery Division (Ireland) |
Q. Bench.
Fitzwilliam v. DillonUNK Ir. R. 9 C. L. 262.
Lord Ashtown v. larkeUNK Ir. R. 6 C. L. 270.
Wright v. TraceyUNK Ir. R. 8 C. L. 478.
Ferguson v. DalyUNK Ir. R. 8 C. L. 216.
Morton v. Mahon 7 Ir. Jur. (O. S.) 238, per Pigot, C. B.
Mahony v. WrightUNK 10 Ir. C. L. 420, 426, 427.
Collins v. RoseENR 5 M. & W. 195.
Heydon's caseUNK 3 Rep. 7.
Davis v. DavisUNK 4 Ir. L. R. 359.
Ashtwon v. LarkeUNK Ir. R. 6 C. L. 270.
Timmins v. RowlisonENR 3 Burr. 1609.
Alexander v. Crosbie Ll. & G. temp. Sug. 145.
Young v. SmithELR L. R. 1 Eq. 180.
Macnamara v. Carey Ir. R. 1 Eq. 9.
Palmer's caseUNK 4 Rep. 74.
Fitzwilliam v. DillonUNK Ir. R. 9 C. L. 251.
Ferguson v. DalyUNK Ir. R. 8 C. L. 216.
Jones v. SmartENR 1 T. R. 49.
Notice to quit — March tenancy — Notice to quit in September ——— Judgment of Court of co-ordinate jursidiction.
326 THE IRISH REPORTS. outstanding in the trustees, it can make no matter. Upon the whole, I think the verdict was right, and that the Plaintiff is entitled to recover the rent in this form of action. O'BRIEN, J., concurred. Conditional order discharged. MURPHY v. MTORMICK. SHEARMAN v. KYLLY. Notice to quit-March tenancy-Notice to quit in September-" The Land Act, 1870" (33 4- 34 Vict. c. 46), s. 58-" The Landlord and Tenant Act, 1860" (23 4. 24 Vict. c. 154), s. 6-Judgment of Court of co-ordinate jurisdiction. A tenancy from year to year-created before the passing of the "Landlord and Tenant Act, 1870" (1st of August, 1870)-commencing on the 25th of March :-Held (O'BRIEN, J dies.) to have been determined on the 29th of SepÂtember by a notice to quit served six calendar months before that day (1). PER TOTA.31 Cramt.-The words in the 58th section of the Land Act, 1870- " in the absence of agreement to the contrary "-mean express agreement. Earl Fitzwilliam v. Dillon (Ir. R. 9 C. L. 251) dissented from. EJECTMENT on the title, on notice to quit, tried before WHITE-SIDE, C. J., at the Westmeath Spring Assizes, 1876. It was admitted that the lands were held under a written agreement dated the 26th of March, 1864, whereby they were let from year to year at the annual rent of £270 6s., and that the tenancy commenced on the 25th of March, 1864. On the 23rd of February, 1875, a notice to quit was served, requiring the tenant to quit and give up possession of the lands on the 29th of September, 1875. It was agreed that a verdict should be entered for the Plaintiff, with liberty for the Court to enter up a verdict for the Defendant if they should be of opinion that the notice to quit was (1) By the 39 & 40 Vict. c. 63, s. 1, in any letting after the passing of the Act (15th of August, 1876), a "year's notice to quit shall be necessary and sufficient to determine the tenancy ;" and by s. 6 the 58th section of the Land Act, 1870, is partly repealed, save as to notices to quit served beÂfore the 15th of August, 1876. Vol.. X.] COMMON LAW SERIES. 327 insufficient to determine the tenancy which had commenced on the Q. Bench. 25th of March. 1876. The facts in Shearman v. Kelly fully appear in the judgment Minenr -of O'BRIEN, J. ; in that case also a verdict was entered :for the m'Coinct cx. plaintiff, and by consent leave was reserved for the defendant to have a verdict entered for him. Conditional orders having been obtained in both cases ; Walker, Q. C. (with him Carton), for the Plaintiff in both cases, showed cause, and argued upon the construction of the Landlord and Tenant Acts of 1860 and 1870, and they relied upon the judgÂment of Dowse, B., in Fitzwilliam v. Dillon (1), up to the portion in which he construed the words " agreement to the contrary." The construction given to those words by Deasy and Dowse, BB., as including a mere implied incident of the tenancy, would have the effect of leaving the law merely as it stood before the Act, .and is in conflict with Lord Ashtown v. Larke (2). Earl Fitz-trillion v. Dillon is not binding on this Court ; no appeal lay from it ; the Judges differed in their reasonings, and the opinion of two of them (themselves inconsistent with Lord Ashtown v. Larke) could not be adopted without rejecting the rest ; and Dowse, B., in saying that the question was settled, expressly adds, " so far as this Court is concerned." They also cited Wright v. Tracey (3) and Ferguson v. Daly (4). Gamble, Q. C. (with him C. Ferguson), for the Defendant M'Cormick. Ashtown v. Larke does not apply. There was there an alternaÂtive notice for May, if the tenancy commenced then, and, if otherÂwise, for November ; it was proved a May tenancy ; the ejectment was brought after November, and the sole question was, whether there was any notice for November. In Ferguson v. Daly there was a notice requiring the tenant to quit in November, but there was a clause in the notice to quit withdrawing the requirement of the possession in certain circumstances, and the question turned on (1) Ir. R. 9 C. L. 262. (3) Ir. R. 8 C. L. 478. (2) Ir. R. 6 C. L. 270. (4) Ir. R. 8 C. L. 216. Z2 THE IRISH REPORTS. [I. R. the notice and not on the section. The only decision on the point therefore is Fitzwilliam v. Dillon. They also cited Dwarris on StaÂtutes, 564 ; Norton v. Mahon (1) ; Mahony v. Wright (2) ; Collins v. Rose (3). Byrne, Q. C., for the Defendant Kelly, advanced similar arguÂments. Cur. adv. vult. WHITESIDE, C. J. :- One of the most important, I may say the most important, of the preliminary objections raised to our deciding the point before us on these cases was that the very same question had already been determined by the Court of Exchequer in the case of Earl Fitzwilliam v. Dillon, reported in the Ir. R. 9 C. L., 251, and that it was a sound and safe rule of constitutional practice that one Court of superior jurisdiction should adopt or defer to the judgÂment of a Court of co-ordinate authority and rank upon the same question involved in each of such Courts. I fully accede to this argument, not merely as a rule of convenience and of practice, but as a rule of constitutional principle. It is calculated to ensure certainty in the administration of the law, and preserves respect not merely for the respective Courts but for the judicial character of each member of each Court. I may add, that for each member of that Court I entertain a sincere respect, founded upon my knowÂledge of the learning, experience, and assiduity distinguishing the individuals who compose that tribunal. But the reason of this rule of conformity must be regarded ; it plainly is because the judgment of one Court of co-ordinate jurisdiction, objected to by another Court of co-equal authority, may be carried forward to a higher tribunal-the ultimate Court of appeal-by which latter tribunal the doubt may be solved and the legal controversy settled. If there could have been an appeal in Earl Fitzwilliam v. Dillon, I would have deferred to the judgment of the Court of Exchequer, if I could have ascertained on what ground exactly that judgment . (1) 7 Ir. Jur. (0. S.) 238, per Pigot, (2) 10 Ir. C. L. 420, 426, 427. C. B. (3) 5 M. & W. 195. VOL. X.] COMMON LAW SERIES. 329 rested, or what it precisely accomplished. But as no appeal can Q. Bench. be had from a judgment upon a special case stated for the opinion 18'76. of a superior Court under the Civil Bill Courts Amendment Act, MURPHY the reason of the rule of practice, ably relied on by Mr. Ferguson I" MUCK. in his lucid argument, is wanting here, and the objection to our proceeding to an independent adjudication fails. The opinion expressed by each Baron of the Exchequer must naturally attract the most respectful consideration. Now in that case we have two of the Judges- Panes, C. B., and Fitzgerald, B.-deciding that, although a tenancy from year to year which commenced on the 29th S'ejitem-ber or Ist of November may continue to be deterÂminable -by a six months' notice to quit, a tenancy commencing on tie2ah Of March or 1st of May can only be determined by a twelve months' notice to quit. Thus we have an express decision by two Judges of high authority upon the effect of the statute, leading to a curiously inconsistent conclusion. Baron Dowse, in a racy and well-considered judgment, observes, " The section on which these cases depend is by no means an easy one to construe. Different opinions have been formed upon it, and the fact that this Court decides these cases upon two opposing constructions of the section in itself shows that the intention of the legislature does not very clearly appear." He then adds, " It is a satisfactory thing, however, to know that we have all arrived at the same desÂtination, though the roads by which we have travelled to it have not been the same." I cannot think that by these natural remarks the general value of the judgment as a judgment of the Court is increased. At the close of his able judgment, having noticed the discordant opinions of himself and brethren, he finishes thus :- " The judgments that have been delivered show the difficulty and importance of the legal points that have been so well discussed at the Bar, and which are now, so far as this Court is concerned, conclusively, and-I shall venture to add, notwithstandÂing the difference of opinion-satisfactorily settled." Baron Deasy is somewhat reticent and cautious in announcing his opinion on the question adjudicated on by the learned Chief Baron and Baron Fitzgerald. He said, " I think the words in the Land Act, 4 unless an agreement to the contrary is shown,' apply to the ease.. It is admitted that the tenancy sought to be terminated by the THE IRISH REPORTS. [1. R. notice to quit commenced in March. From that the inference of law when the Land Act passed was, that it could only be termi. nated by a notice to quit ending in March. I see nothing in the language of the Land Act sufficient retrospectively to annul that term in the contract of tenancy. In order to do so, it would be necessary to...
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