The Attorney-General v Fetherstonhaugh

• Jurisdiction: Ireland
• Judgment Date: 30 November 1892
• Docket Number: (1892. No. 1526.)
• Date: 30 November 1892
• Court: Chancery Division (Ireland)

Appeal.

Before WALKER, C., SIR PETER O'BRIEN, C. J., and FITZ GIBBON and BARRY, L. JJ.

THE ATTORNEY-GENERAL

and

FETHERSTONHAUGH

Yates v. Aston 4 Q. B. 182.

King v. KingENR 3 P. Wms. 358.

Pontet v. Basingstoke Canal Co.ENR 3 Bing. N. C. 433.

Attorney General v. IrelandUNK 15 L. R. Ir. 145.

Board of Works v. SymesUNK 32 L. R. Ir. 598.

Re Blackburn Building Society 42 Ch. Div. 343.

Allenby v. DaltonUNK 5 L. J. Q. B. 312.

Jones v. MarshallELR 24 Q. B. Div. 269

Hopkins v. Worcester, and Birmingham Canal Co.ELR L. R. 6 Eq. 437.

Vallance v. FalleELR 13 Q. B. Div. 109.

Cork and Bandon Railway Co. v. GoodeENR 13 C. B. 826.

Shepherd v. HillsUNK 25 L. J., Ex. 6.

Wolverhampton Waterworks Co. v. HawksfordUNK 28 L. J., C. P. 242.

Commissioners of Public Works v. SymesUNK 32 L. R. Ir. 598.

Loan for improvement of land 10 Vict. c. 32, s. 6 Board of Works loan Lessee Eviction for non-payment of rent Personal liability of the borrower.

THE ATTORNEY-GENERAL v. FETHERSTON HATJGH (1). Loan for improvement of land-10 Viet. e. 32, s. 6-Board of Works loanÂÂLessee-Eviction for non-payment of rent-Personal liability of the borrower. The defendant, who was entitled, under a lease for ever, dated the 13th March, 1818, to lands in the county of Galway, obtained, in 1880, from the Board of Works (under 10 & 11 Vict. c. 32, and the amending Acts) a loan for 300, which was secured by an order creating an annual rentcharge payÂÂable for a term of twenty-two years. In 1888 the defendant's interest was evicted for non-payment of rent. In an action brought against the defendant personally, for arrears of the rentcharge accrued due subsequently to his eviction : Held (reversing the decision of the majority of the Queen's Bench DiviÂÂsion), that the liability to pay the instalments of the renteharge terminated with the defendant's interest in the land. THE facts of the case are fully stated in the report in the Court below (30 L. R. Ir. 585). The Queen's Bench Division decided in favour of the Board of Works, Gibson, J., dissenting, and from that decision the defendant appealed. Meredith, Q.C., and Fetherstonhaugh, for the appellant : There is no mortgage deed here at all ; the money was charged on the land by the order of the 11th January, 1880, and the rights of the plaintiffs must depend. on the statute which enabled the Board of Works to lend and the defendant to borrow : Yates v. Aston (2). This is not, therefore, a loan in the ordinary sense ; it is a loan advanced on the security of the interest in the lands. The security is to be given for the instalments of the annuity during the continuance of the residue of the estate in the (1) Before WALKER, C., SIR PETER O'BRIEN, C.J., and Frrz GIBBON. and BARRY, L.JJ. (2) 4 Q. B. 182. VOL. XXXII.] Q. B. & EX. DIVISIONS. 615 land. The defendant is merely the person who puts the charge on Appeal. his interest in the land, and he incurs no personal liability at all 1892. The renteharge and the personal liability are co-extensive; and ATTY.-GEN. if the rentcharge ceases, the personal liability ceases also. This FETHERSTON- construction of the statute destroys the argument found on King HAUGH. v. King (1), which was the case of an ordinary mortgage, or Pontet v. Basingstoke Canal Co. (2). The principle of Attorney-General v. Ireland (3) and Board of Works v. Symes (4) governs this case. The Right Hon. J. Atkinson, Q.C., Carson, Q.C., and VeseyÂÂFitzgerald, for the Board of Works : Every loan implies an obligation to pay : Re Blackburn Building Society (5), and in an ordinary mortgage, an action for debt lies, although the deed contains no covenant to pay : King v. King (1) ; Yates v. Aston (6) ; Allenby v. Dalton (7) ; Jones v. Marshall (8) ; Hopkins v. Worcester, and Birmingham Canal Co. (9). There is the further liability of the borrower, besides the security of the land. In other eases of special contract under a statute the original liability of the debtor still remains : for example, under the Pawnbrokers' Act of 1872, a special conÂÂtract pawn ticket does not exclude the common law right to recover : Jones v. Marshall (8). If a statute provides a remedy, a party can always bring an action for damages, unless where the statute creates a liability not existing at common law, and also gives a remedy : Valiance v. Falle (10) ; Cork and Bandon Railway Co. v. Goode (11); Shepherd v. Hills (12) ; Wolverhampton WaterÂÂworks Co. v. Hawksford (13). The Board of Works v. Symes (4) does not apply, because it turned on the words of sect. 7, which expressly provide, " if his interest shall so long continue." (1) 3 P. Wins. 358. (2) 3 Bing. N. C. 433. By sect. 37 the lands are to be (8) 24 Q. B. Div. 269. (9) L. R. 6 Eq. 437. (3) 15 L. R. Ir. 145. (10) 13 Q. B. Div. 109. (4) 32 L. R. Ir. 598. (11) 13 C. B. 826. (5) 42 Ch. Div. 343. (12) 25 L. J., Ex. 6. (6) 4 Q. B. 182. (13) 28 L. J., C. P. 242. (7) 5 L. J., Q. B. 312. 616 LAW REPORTS (IRELAND). [L. It. I. Appeal. charged with the payment of a rentcharge of 6 10s. for every 1892. 100, which was to be payable for twenty-two years. By sect. 38, every such rentcharge is to take priority over all other charges, V. FETHERSTON- except quit-rent, and tithe rentcharge. HAUGH. Nov. 30. WALKER, C. :- This is an action brought in substance by the Board of Public Works against the defendant, who had applied for and obtained a loan of 300 for the improvement of his lands, under the proviÂÂsions of 10 Viet. c. 32. By an order dated the 11th June, 1880, the lands, which were held under a lease dated the 13th March, 1818, became charged, as security for the advance, with a rent-charge of 10 5s. 6d., payable half-yearly for twenty-two years. The claim seeks to recover six half-yearly gales and a fraction of the rentcharge, amounting to 31 5s. 10d., and, in the alternative, 26 ls. 3d., the sum stated to be due on foot of the 300, after crediting such portion of the gales of rentcharge paid as is attriÂÂbutable to principal. The lease forming the subject of the security was evicted on the 23rd November, 1888, and all sums due on foot of the renteharge prior to the eviction have been paid or lodged. The question in the case is, whether the defendant remains personally liable for the rentcharge or principal sum advanced, though his estate, and consequently the rentcharge charged on it, have come to an end. The Judges of the Queen's Bench Division, who heard the argument in the Court below, have, by a majority, held that the defendant is liable personally for the gales of rentcharge, and from that decision of the majority the defendant has appealed. The legal principles applicable to such a case as the present are clear, and the difficulty, as usually happens, arises on their application. It is, on the one hand, clear that every loan made implies the existence of a debt, and a contract to repay on request, and the giving of real security by the borrower, by no means necessarily excludes, and, on the contrary, is prima facie consistent with, the personal obligation. It is equally certain that, whether a security be given by mort Vor.. XXXII.] Q. B. & EX. DIVISIONS. 617 gage, or created by statute, the deed may be so framed, or the Appeal. form of the statutory security so indicated, as to impliedly exclude 1892. ATTY.-GEN. - . ATTY all modes of repayment which are not expressed. v. The question here is, whether the mode of creation of the FETHERSTON.- statutory renteharge, and the expressed liability for the gales of it, HATJGR are inconsistent with, and exclude-1, personal liability for the Walker, C. principal sum applied for and advanced for the purposes of the estate charged ; and, 2, for the gales of the rentcharge after it has ceased qua rentcharge to exist by reason of the failure of the estate charged. For many years prior to the passing of the 10 Viet. a. 32, there was in existence in Ireland a code of statutes under which advances could be made of public money for the promotion of works of public utility, and management of fisheries, and like purposes. Those were the 57 Geo. 3, c. 34 ; 1 & 2 Wm. 4, a. 33 ; and 6 & 7 Wm. 4, c. 108. These statutes contemplate the taking of securiÂÂties, real and personal, for the advances made under them; and loans for the like purposes as are mentioned in the 10 Viet. c. 32 are dealt with in the 32nd section of the 1 & 2 Wm. 4, c. 33, by which the Commissioners are empowered to make advances " in aid of the drainage, embankment, reclaiming, or other improveÂÂment of land, on the credit of mortgages, assignments, or other assurances of the estate and interest, freehold or leasehold, in said land," which is to be the subject of the improvement, provided they are satisfied that the improvement will increase the value of the land by 10 per cent., and security is given, as directed, for the execution of the work. The advance is directed to be made repayable within three years after the period fixed for comÂÂpletion. The next series of statutes to which attention may be called is the drainage code, of which the 5 & 6 Viet. c. 89 is the first. By that, any person interested in the lands might put the Commissioners in motion. He gave security for the preliminary expenses, for the recovery of which a personal remedy is given ; and if the Commissioners obtained the assent of the required number of the defined class of proprietors, the Commissioners carried out the works themselves, and on their completion, ascertained by an award, the proportions of the expenditure payable in respect of 618 LAW REPORTS (IRELAND). [L. R. I. Appeal. the several lands improved, for the repayment of which specific 1892. remedies are given against the lands only. FETHERSTON- and Acts amending it, in effect substituted Drainage Boards for ATTY.-GEN. The drainage code, established by the 26 & 27 Vict. 0.88, V. HAUGH. the carrying out of the works which the Commissioners had Walker, C. executed under the 5 & 6 Viet. c. 89 ; and advances made...