The Commissioners of Public Works in Ireland v S. J. Symes, R Taylor, and J. P. Swan

JurisdictionIreland
Judgment Date11 May 1892
Date11 May 1892
CourtCourt of Appeal (Ireland)

Appeal.

Before LORD ASHBOURNE, C., SIR PETER O'BRIEN, C. J., PORTER, M. R., and FITZ GIBBON and BARRY L. JJ.

THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND
and

S. J. SYMES, R. TAYLOR, AND J. P. SWAN

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

Green v. Wood 7 Q. B. 178.

Salmon v. DuncombeELR 11 App. Cas. 627.

Doe v. MartinENR 4 T. R. 65.

Ex parte Walton 17 Ch. Div. 737.

Denny's Estate Ir. R. 8 Eq. 446-7.

Reg v. the Churchwardens of All Saints, WiganELR 1 App. Cas. 611.

Elliott v. North Eastern Railway Company 10 H. L. Cas. 333.

Harding v. PreeceELR 9 Q. B. Div. 281.

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

Attorney-Genera v. WilsonUNK 31 L. R. Ir. 28.

Loan for improvement of land — 10 Vict. c. 32, s. 7 — Bond — Lessee for three lives or thirty-one years — Eviction for non-payment of rent — Continuing liability for instalments — Sureties.

598 LAW REPORTS (IRELAND). [L. R. L THE COMMISSIONERS OF PUBLIC WORKS IN IRE- LAND V. S. J. SYMES, R. TAYLOR, AND J. P. SWAN (1). Appeal. 1892. . , Loan for improvement of land-10 Viet. c. 32, s. 7-Bond--Lessee for three May 10 11 lives or thirty-one years-Eviction for non-payment of rent-Continuing liability for instalments-Sureties. A, who was lessee of lands for a term of three lives or thirty-one years, from the 1st May, 1836, obtained a loan from the Board of Works for the purÂpose of improving the lands, and A, with B and C as sureties, executed to the Board a bond, which, after reciting the lease and that A had applied for a loan under the provisions of the statute 10 Vict. e. 32, and the Acts amending the same, and had, in compliance with the provisions of the said Acts, agreed to enter into the said bond, and that B and C had agreed to join in the bond as sureties for A for the due payment of the rentcharge to become chargeable on the said lands, pursuant to the provisions of the said Acts, as, in the condition thereinafter mentioned and contained, was conditioned as follows, viz. that if A, his heirs, executors, administrators, or assigns, should yearly, by half-yearly payments, according to the provisions of the said Acts, during the conÂtinuance of the residue of such his estate or interest in the said lands, or for so many years as such rentcharge, under the provisions of the said Acts, should be payable, if the interest of A therein should so long continue, pay, or cause to be paid, to Her Majesty, her heirs or successors, the annual rentcharge specified, on the days mentioned, the bond should be void, or otherwise should remain in full force. A was evicted for non-payment of rent before the loan was paid off:- Held, reversing the decision of the Exchequer Division, that the liability of B and C on the bond determined with the termination of A's interest in the lands. The facts of the case are stated fully in the report of the case in the Court below, 28 L. R. Ir. 496, and it was argued in the Court of Appeal on the 13th and 14th January, 1892, before the Lord Chancellor and the Lords Justices. At the conclusion of the argument the Court reserved judgment, and subsequently directed the case to be re-argued before a fuller Court. It appeared in the course of the argument in the Court of Appeal that the form of the bond used by the Board of Works, which is fully set out in VOL. XXXII.] Q. B. & EX. DIVISIONS. 599 28 L. R. Ir. 502-3 differed from the terms of sect. 7 of the Appeal. statute in two particulars : the word "therein " at line 17, p. 503, 1892, and the words " in each and every year," in line 24, of the same BOARD OF WORKS page, were not in the section of the Act of Parliament. v. SYMES. The Right Hon. S. Walker, Q.C., and Cathrew, for the defenÂdants, Taylor and Swan : The sureties are not liable after the estate of the borrower in the land has ceased. The words of the bond are " yearly and every year," to pay the annuity of £6 10s. per annum. In Attorney-General v. Ireland (1) it was held with reference to the 7th section, that where a tenant, who held for a term of over forty years, was evicted for non-payment of rent, the inheritance was not liable for the unpaid instalments of the rentcharge. The words, " if his interest shall so long continue," belong to the latter clause, and are necessary for it ; they are not wanted for the other clause. Statutes imposing a liability must be construed strictly : Green v. Wood (2). Unless it is impracticable to construe the statute in its literal sense, a forced construction will not be adopted : Salmon v. Duncombe (3). It may be that the Board of Works are entitled to frame a bond which would go beyond the 7th section of the statute, but they have not done so, and by the present form of bond we are not liable. Serjeant Jellett, Q.C., Carson, Q.C., and J. F. VeseyÂFitzgerald, for the Board of Works : The condition upon which the Legislature allowed persons, who had the less estates, as defined in sect. 7, to obtain loans was their giving security. The security, therefore, was to be for the gales of the rentcharge. We submit that the parenthetical construction is correct, and that the words, " or for so many years as such rent-charge under this Act shall be payable," ought to be read in a parenthesis, so that the subsequent words, " if his interest shall so long continue are to be referred to the first portion of the clause." In construing an ambiguous deed, you may put in stops and insert a parenthesis : .Doe v. Martin (4) ; and the same course may (1) 15 L. R. Ir. 145. (3) 11 App. Cas. 627. (2) 7 Q. B. 178. (4) 4 T. R. 65. 2 T 2 600 LAW REPORTS (IRELAND). [L. It. I. Appeal. be adopted with regard to a statute. Where the object of a deed 1892. or statute is plain, the Court will adopt the construction which BOARD OF will carry out that object, and not a construction which will make WORKS v. it absurd : Ex parte Walton (1). The bond must be construed SYMES. along with the section of the statute : Denny's Estate (2) ; Reg. v. The Churchwardens of All Saints, Wigan (3) ; Elliott v. North Eastern Railway Company (4). There is no general rule of law that on the failure of the primary security the surety is released : Harding v. Preece (5). If the Court should be against us on the parenthetical conÂstruction, we submit that the word " if " should be read as meaning "assuming that." The meaning of the latter part of the section would be that, if the borrower's interest lasts so long, you are to take security for the whole time that his estate lasts ; if his interest does not last for twenty-two years, then you must take security for so long as his interest last. May 11. LORD ASHBOURNE, C. :- This case of The Commissioners of Public Works v. Symes is a case of interest and importance, and necessarily of the highest importance to the defendants, who are sureties, and to the Board of Works, who represent the public. The questions involved were admitted to be of such importance, and so many points of interest arose, that we deemed it right to have it argued a second time, and we have had many opportunities during the discussion, of considering all the argument ; and also last night we examined the points under discussion, and the sections of the Acts of Parliament relied on. The question after all comes back to the construction of the 7th section of 10 Viet. e. 32. That section may be assumed, for the purposes of my judgment, to be now read : we have heard it read a dozen times over, and on a few lines of that section the Exchequer judgment was delivered. This Act of Parliament was an Act which was passed to regulate the terms on which money should be lent by the Board (1) 17 Ch. Div. 737. (4) 10 H. L. Cas. 333. (2) Ir. R. 8 Eq. 446-7. (5) 9 Q. B. Div. 281. (3) 1 App. Cas. 611. VOL. XXXII.] Q. B. St H.X. DIVISIONS. 601 of Works for drainage. The 6th section states the class of persons, Appeal. who are owners, from a tenant in fee or in tail and a tenant for a life 1 892. or lives renewable for ever...

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