Stubbs v Martin

JurisdictionIreland
Judgment Date02 November 1894
Date18 May 1894
Docket Number(1893. No. 2124.)
CourtCourt of Appeal (Ireland)
Stubbs
and
Martin.

Ex. Div.

Appeal.

(1893. No. 2124.)

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1895.

Land Law (Ireland) Act, 1887, sect. 5 — Judicial rent less than rent reserved by lease — Account not taken of over-payments by tenant — Right of action — New statutory right and statutory remedy.

A lessee served an originating notice to fix a fair rent; and, in the interval which elapsed before a judicial rent was fixed, paid gales of the reserved rent. Before the fair rent was fixed, the lessee assigned the lease to a purchaser, and the fair rent proceedings were continued in the name of the assignee. The judicial rent being lower than that reserved by the lease:—

Held, by the Exchequer Division (diss. Palles, C.B.) and by the Court of Appeal, that although no account had been taken between the parties, under section 5 of the Land Law (Ireland) Act, 1887, the lessee could maintain an action for the difference between the rent paid by him since the gale-day next after making the application and the judicial rent.

The rule that where a statute creates an obligation, and supplies a remedy for its enforcement, that remedy alone must be followed, is subject to this qualification, that the remedy supplied must cover the whole right given.

Motion by the plaintiff to set aside the verdict and judgment entered for the defendant at the trial, and to enter a verdict for the plaintiff for £30, and judgment for the plaintiff accordingly.

The action was brought to recover £30, amount of rent over-paid by plaintiff, and was tried before Mr. Justice Johnson and a jury.

At the trial it was proved that the plaintiff had held certain lands, near Dundalk, from the defendant, under a lease dated 8th March, 1873, at the yearly rent of £35. On the 7th October, 1887, he served an originating notice to fix a fair rent of the said holding. On the 28th December, 1889, he assigned his interest in the said holding to a man named Falkiner, in whose name the proceedings to fix a fair rent were continued. By an order of the Land Commission, dated the 18th March, 1891, the fair rent was fixed at £23. The plaintiff (Stubbs) paid the rent up to 1889; since which date Falkiner paid the rent, and got the deduction of £12 up to 1st November, 1890. The plaintiff then claimed the difference between the former rent and the judicial rent, for the two and a-half years paid by him at the former rate, as money received by the defendant for the use of the plaintiff.

His Lordship directed a verdict for the defendant.

The plaintiff now moved to set aside said verdict and judgment and enter same for him.

Serjeant Dodd (with him Dickie), for the plaintiff, cited Sutton v. Walsh (1); Davies M'Mahon (2); Twiss v. Casey (3); Burrell v. Farmer (4); Mayor of Lichfield v. Simpson (5).

H. W. Jackson, for the defendant, cited Stevens v. Jeacocke (6); Dundalk Western Railway Co. v. Tapster (7); Stevens v. Evans (8);

44 & 45 Vict. c. 49, sect. 8, and other sections of the same Act and 50 & 51 Vict. c. 33, sect. 5, and other sections.

Cur adv. vult.

Serjeant Dodd (with him Dickie), for the plaintiff

H. W. Jackson, for the defendant

Murphy, J.:—

I am of opinion that this action lies. In 1887 Stubbs served an originating notice to fix a fair rent. Subsequent to the service of the notice Stubbs had paid to the landlord £12 annually, in excess of the rent found by the Sub-Commissioners. The landlord and tenant stood in this relation to each other—Any payments made by the tenant, after the service of the originating notice, were made on the understanding that it depended on the decision of the Sub-Commissioners, whether or not the landlord was receiving money of the tenant's which he could not retain if the rent fixed was less than that which he was accustomed to pay. So the matter stood for the first gale, and so on up to the fifth gale. Stubbs, before the decision was made, did what he had a perfect right to do, he parted with his interest in the lands to another tenant, Falkiner, who was in occupation of the lands at the time of the decision of the Sub-Commissioners. That decision amounted to this, that the old rent was £12 in excess of what it ought to have been; and, therefore, that the landlord had got into his hands £30 from Stubbs, and £12 from Falkiner. Now that decision having been pronounced, there was a right to maintain an action for money had and received. That right of action arose of necessity from the Act which was passed, giving the Sub-Commissioners power to fix the rent; and the right of action which arose was not a new right, but arose from the common law, as an action for money had and received, on the decision being pronounced. The Act goes on to say “any sum found on such account to be due from the landlord to the tenant shall be deducted by the tenant from the rent thereafter accruing due from him.” In my opinion, that provision is placed there as a remedy which can be adopted by the tenant if he chooses. It might be a very convenient course to adopt in the case of small sums; but, supposing it amounted to a year or two years' rent, could it be said he would have to wait two years before he could deduct? I need not put the case of the injustice which would result if this was held to be the only remedy. Stubbs could never deduct the £30, and Falkiner could never deduct £12; for in an account taken between the parties Falkiner could not be allowed credit for what had been paid by Stubbs. Great and palpable injustice would arise if this was supposed to be the only remedy instead of an additional one: whereas if this be taken to be an additional remedy, no harm would be done to any party; and, therefore, I have adopted the view suggested by the plaintiff that it is an additional remedy, and does not take away the right of action for money had and received.

I understand that in fact the Commissioners never do take an account in cases of this kind. The tenant is not to lose his money because they omit to take an account. On the last circuit at Longford the question came before me on an appeal. Counsel for the landlord objected that credit for over-payment could not be allowed, as the Commissioners had not taken an account. I did not admit the objection, but took an account and allowed credit for the over-payment.

Andrews, J.:—

I am of opinion that the plaintiff is entitled to succeed in this action, and that the verdict and judgment entered by the learned Judge for the defendant should be set aside, and judgment entered for the plaintiff in the amount of £30. I believe there is no doubt about the amount, at least I have not heard of it. Now, the question arises entirely upon the construction of section 5 of 50 & 51 Vict. c. 33, the Land Act of 1887; but I agree that in construing that section we should look at the general provisions of the statutes of which it forms a part. If the said section simply stopped with the word “application” there would be scarcely anything to argue at all. The 5th section provides that on an application to fix a judicial rent of a holding, judicial rent shall be the rent payable by the tenant of the holding as from the gale-day next after the making of the application. Had the section stopped there a plainer provision could hardly have been devised to give effect to the result contended for in favour of the tenant, and which would only have been carrying out the justice which the Act provided for. Now, the difficulty arises, as has been shown during the argument, by reason of what the law recognises in the construction of a statute, that if a new right is provided by statute, and also a particular remedy, that remedy must be followed, and if the remedy cannot be followed the right cannot be obtained; but that is subject to equally well-settled law that if the remedy which the statute gives is imperfect, and not applicable to all the cases for which on the true construction of the Act it is intended, then it is to be regarded as additional to the remedy that had existed before any such provisions were enacted. At first sight it does not appear very probable that the Act of 1887 would be restrictive in its rights, and that it would have provided an only crumb of comfort for the landlords who were supposed not to be very much delighted with the legislation that had taken place in the earlier enactments, or that it could be regarded as a palliative for the possible deductions which turned out to be the rule. It may be that there is more in the observation that a priori the fifth section would have been more restrictive in its operation than the corresponding section in the earlier legislation. However, we must deal with it as it stands, and even if it is incapable of the construction which the plaintiff seeks to put upon it, we can only regret it and agree to pass it by. If, on the other hand, there is a legitimate construction enabling him to sustain the action, then, I think it is in the province of the Court to give it that construction. Now, as to the remedy given by the section, is it coextensive with the right that is conferred? I think Mr. Dickie has shown in two cases, and is able to point to two instances, in which the intention of the legislation would not have been given effect to if the construction for the defendant is to be allowed. My opinion is that that clause was intended for very unusual application, and that in every case in which the rent was fixed the Legislature meant and expressed in clear language that the rent was to be determined by reason of that fixture, and was to relate back and be the rent payable as between the parties from the gale-day next after the making of the application. If, then, you can find a case in which the remedy is not available that fact would go to show that the remedy is an...

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