The Queen (at the prosecution of Ellen Murphy) v Recorder and Justices of Cork

• Jurisdiction: Ireland
• Judgment Date: 24 November 1894
• Date: 11 June 1895
• Court: Court of Appeal (Ireland)

The Queen (At the Prosecution of Ellen Murphy)

and

Recorder and Justices of Cork (1).

Q. B. Div.

Appeal.

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.

Licensing Acts — Licensed premises — Title — Licensee in occupation of premises after cesser of his estate — Marriage settlement — Gift over to wife on bankruptcy of husband — Transfer of license to wife by husband after becoming bankrupt — Application by wife — 6 Geo. 4, c. 81, s. 21 — 18 & 19 Vict c. 114, s. 1.

By marriage settlement the lessee of certain premises settled them on himself for life, with remainder to his son for life, or till bankruptcy, with remainder to his son's then intended wife for life, for her separate use. After the death of the settlor the lessor gave a new lease of the premises to the settlor's son, who thereupon built a house on the premises. The son then became bankrupt, and on his bankruptcy his wife took proceedings in the Chancery Division, wherein she obtained a decree, declaring the new lease a graft upon the old one, and establishing her title to the premises. In each of the two years next following this decree the husband obtained, in his own name, a publican's license for the house he had built on the premises, but in the third year he indorsed on the licenses what purported to be a transfer thereof to his wife, and she applied at the General Annual Licensing Sessions for the county Cork for a transfer of the license. The Recorder and Justices refused this application, on the ground (1) that the husband had not, at the date of the transfer, any interest or property in the license capable of transfer, and (2) that if any such interest or property was vested in him, it should be transferred to his assignees. On a motion by the applicant to the Queen's Bench Division, and subsequently by appeal to the Court of Appeal, for a mandamus and certiorari:—

Held, by the Court of Appeal (affirming the decision of the Queen's Bench Division), that, as there had been neither the death of the person licensed, nor his removal from the licensed premises, nor the sale of or assignment of his interest therein by operation of law, or otherwise, after the license sought to be transferred was granted, the applicant was not entitled to claim the license by way of transfer within the provisions of the Licensing Acts.

Motion to make absolute, notwithstanding cause shown, a conditional order for writs of mandamus and certiorari directed to the Recorder and Justices of the county of Cork, in regard to an

order made by them at the General Annual Licensing Sessions in October, 1893, whereby they refused the application of Ellen Murphy for the transfer of the retail license of certain premises in Coachford.

The facts of the case and the arguments on which the application was grounded and resisted appear sufficiently from the judgments.

Ronan, Q.C., and Daniel Mahony, for the applicant.

Roche, Q.C., and C. MacDermot, for the Recorder and Justices of county of Cork.

Cur. adv. vult.

Sir P. O'Brien, C J.:—

A motion was made to the Court in this matter for a writ of mandamus, and, if necessary, of certiorari, to compel the Recorder and Justices of the county of Cork to grant certificates to enable the prosecutrix, Ellen Murphy, to procure the transfer of a publican's license, which had been granted to her husband, Edmond D. Murphy. The case involved some questions of considerable general importance, and we reserved judgment that we might have an opportunity of carefully referring to authorities and statutes bearing upon the matters in dispute.

The facts appear to have been as follows:—By lease dated 20th August, 1857, certain premises at Coachford in the county of Cork were granted by Martha Lindsay to Denis E. Murphy, for the term of fifty-one years from the 25th March, 1857, at a rent of £61 14s. 8d. On the marriage of the lessee's son Edmond D. Murphy with the applicant Ellen Murphy, the premises so demised were put in settlement, and by a settlement executed on the 2nd May, 1874, the premises were limited to Denis Murphy the lessee for his life, with remainder to his son, Edmond D. Murphy, during his life, or until bankruptcy, with remainder to the applicant Ellen Murphy during her life for her separate use, with remainder to the children of the marriage, upon the usual trusts.

It appears that some time before the 15th May, 1879, Denis Murphy, the father, died; and upon that date a lease of the same premises was made by Martha Lindsay to Edmond D. Murphy for the term of eighty-one years, at a rent of £62 14s. 8d. Some time after the execution of this lease Edmond D. Murphy, the lessee, built a house upon the premises. It appears that Edmond D. Murphy was adjudicated a bankrupt on the 21st December, 1891. After his bankruptcy a question arose as to whether the trusts of his marriage settlement were in accordance with the intention of the parties to it, and whether the lease of the 15th May, 1879, was a graft upon the lease of the 20th August, 1857, and subject to the trusts of the marriage settlement. A suit was accordingly instituted by Ellen Murphy, the present applicant and wife of Edmond Murphy, against the trustees of the settlement and the assignees in bankruptcy of her husband; and, by judgment of the Vice-Chancellor, dated the 30th November, 1892, the lease of the 15th May, 1879, was declared to be a graft upon the lease of the 20th August, 1857, and subject to the trusts of the settlement of the 2nd May, 1874; and the settlement itself was reformed so as to make it clear that the leasehold premises went over from husband to wife on the bankruptcy of the former.

It appears that Edmond D. Murphy got, in respect of the house which he had built on the leasehold premises, a publican's license in his own name for the year ending the 10th October, 1893, and a similar license for the year ending 10th October, 1894. Now, at the General Annual Licensing Sessions for the county of Cork in October last application was made on behalf of Ellen Murphy for a transfer of a publican's license from her husband Edmond D. Murphy to her. Proof was given of the facts I have stated, and also that what purported to be a transfer was indorsed on the several licenses from Edmond D. Murphy to his wife, and that the latter was in possession of the premises. The application was opposed by the Constabulary and by the assignees in bankruptcy of Edmond D. Murphy. The application is stated, in the affidavit which was made to ground the motion, to have been refused on two grounds: first, that Edmond D. Murphy had not in himself at the date of the alleged transfer to his wife any interest or property in the license capable of transfer by him; secondly, that if any such property was or is vested in the said Edmond D. Murphy the same should be transferred to his assignees in bankruptcy. Being of this opinion the learned Recorder ordered the license to be impounded.

Now by the present proceedings before us the decision of the Recorder is impugned, and the question for our consideration is: Was the decision of the learned Recorder well founded? I shall deal with the second point first, namely, that if Edmond Murphy had any interest, it should be transferred to the assignees. It will be observed that the Recorder expressed himself hypothetically: “if Edmond Murphy had any interest.” He does not seem to have attached very much weight to this second ground of decision — it looks as if he expressed himself parenthetically. However, the hypothesis upon which this alleged second ground of decision proceeds is without legal foundation. The case of Kelly v. Montague (1) removes any doubt which the language used by some of the Judges in giving judgment in Brennan v. Dorney (2) may have caused, though indeed nothing could be more explicit than the statement of Lord Justice Barry in that case. He said in so many words, “I do not think there is any property at all in a license.” However, the matter is set at rest by the case of Kelly v. Montague (1) in which it was decided that there is no property in a license apart from the ownership of the premises to which the license is attached. In this case, upon the bankruptcy of Edmond Murphy, the premises vested in his wife; therefore, upon the authority of the cases I have referred to, there was no interest in the license to vest in or be transferred to the assignees in bankruptcy.

The main ground of decision, however, was that first stated, namely, that Edmond Murphy had not in himself at the date of the alleged transfer to his wife any interest or property in the license capable of transfer by him. It was admitted by Edmond Murphy that the indorsement purporting to transfer the license to Ellen Murphy had only been signed by him immediately before the application was heard.

Now we have looked at this first ground from two points of view: 1, Were the licenses which were granted to Edmond Murphy, having regard to the fact that he had no interest in the premises when they

were granted, null and void? 2, Was the case within the Transfer Acts at all? Now, upon the first question, was the license purported to be transferred a nullity? No doubt it and the other renewal were obtained after the bankruptcy, and no doubt the premises had gone over at that time to the wife. This was, I think, the effect of the settlement, even before the decree of the vice-Chancellor. But however this may be, after that decree, it must be taken as if it had borne its reformed character from its date. All estate and interest in the premises had gone away from the husband; he was in occupation as a mere licensee; no doubt his occupation was lawful, but estate interest or possession in a legal sense he had none. Is a license granted under such conditions valid or void? Mr. MacDermot's...