The Queen (Earl of Gosford) v The Irish Land Commission

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judgment Date: 12 February 1898
• Date: 12 February 1898

THE QUEEN (EARL OF GOSFORD)

and

THE IRISH LAND COMMISSION

Appeal.

Landlord and tenant —— Land Commission — Jurisdiction — Fair rent — Power to refer to Court valuers — Report — Order whether had on its face — Certiorari — Mandamus.

Adams v. DunseathUNK 10 L. R. Ir. 109.

Allcroft v. Bishop of LondonELR [1891] A. C. 666.

Blair v. Lord Gosford Reported on case stated, infra, p. 453.

Colonial Bank v. WillanELR L. R. 5 P. C. 417.

Cope v. CunninghamIR [1897] 2 I. R. 467.

Ex parte Hopwood 15 Q. B. 121.

In re BaileyENR 3 E. & B. 607.

In re HeaphyUNK 22 L. R. Ir. 510.

In re SullivanUNK 22 L. R. Ir. 98.

Longman v. EastELR 3 C. P. D. 142.

Markey v. Lord GosfordDLTR 31 I. L. T. R. 97.

Overseers of Walsall v. L. & N. W. Railway Co.ELR 4 App. Cas. 30.

Re DawdyELR 15 Q. B. D. 426.

Re DawdyELR 15 Q. B. D. 430.

Re Listowel FisheryUNKIR I. R. 9 C. L. 59.

Reg. v. Bolton 1 Q. B. 66.

Reg. v. Bolton 1 Q. B. 72.

Reg. v. Cheltenham Commissioners 1 Q. B. 467.

Reg. v. Justices of CambridgeshireUNK 1 Dow & Ry. 325.

Reg. v. Justices of CarnarvonshireENR 4 B. & Ald. 86.

Reg. v. Justices of West Yorkshire 10 A. & E. 685.

Reg. v. RandELR L. R. 1 Q. B. 230.

The Overseers of the Poor of Walsall v. London and North-Western Railway CompanyELR 4 App. Cas. 30.

VoL. II.] QUEEN'S BENCH DIVISION. 399 Mr. M'Entire was not entitled to raise the question, it would be Appeal, somewhat inconsistent to proceed to deal with it. Accordingly 1899. ARRANGING the appeal must be allowed, the order of Mr. Justice Boyd reversed, in re and the application of Mr. Vagg to remove the stay placed on the DEBTOR; EBTOR ; Ex paste payment of his dividends granted. VA GG. We are of opinion that the creditors have been fortunate in Holmes, L.J. securing the services of Mr. M'Entire as their trustee. He has managed the property prudently and beneficially for all concerned. I have said that his action in reference to this judgment debt was taken in the interest of the creditors ; and the petitioner has no reason to complain of it. A trustee ought to be indemnified by the trust estate against expenses incurred by him in good faith in carrying out the trusts ; and, therefore, although he must be ordered to pay the costs of Mr. Vagg both in the proceedings before Mr. Justice Boyd and of this appeal, we direct that he shall be entitled to be recouped the costs so paid, as well as his own, out of the trust property as part of the costs in the arrangement matter. Solicitor for the appellant : T. H. Enright. Solicitors for the respondent : ficallan 4. Co. R. D. M. THE QUEEN (EARL OF GOSFORD) v. THE IRISH LAND COMMISSION (1). Landlord and tenant—Land Law (Ireland) Acts, 1881-1896--Land ComÂmission Jurisdiction — Fair rent — Power to refer to Court valuersÂReport—Order whether bad on its face—Certiorari—Mandamus. R. and S., two tenants on the estate of Lord G., having had fair rents fixed by a Sub-Commission, the landlord applied to the Land Commission for a reÂhearing. Before the cases were reheard, the Land Commission sent down two Appeal. 1898. Feb. 3, 4, 9, 10, 12. (1) Before LORD ASABOURNE, C., and FITZ GIBBON, WALKER, and HOLMES, L.dJ. 400 THE IRISH REPORTS. [1899. valuers to inspect the holdings and report. The direction to the Court valuers Appeal. 1898. instructed them to visit the holdings, and if they concurred with the schedule recorded by the Court, and their conclusion as to fair rents, report so on a THE QUEEN v. form supplied ; if they saw reason to differ substantially therefrom they were IRISH LAND to report on another form, stating concisely, under the respective headings, the COMMISSION. matters only as to which they differed and the consequent variations upon which their estimate of the fair rent of the holding had been arrived at. The Court valuers reported, concurring with the schedule of the Sub-Commission. The appeals were heard by the Land Commission who received the evidence offered by landlord and tenants ; but the Commission inspected and used the report of the Court valuers ; and, in the result, confirmed the rents fixed by the Sub-Commission. Held, that the Land Commission acted within their powers in making such reference to the Court valuers, and using their report. The Land Commission made and filed a schedule prescribed by sect. 1 of the Land Law Act, 1896, in the form prescribed by the rules of January, 1897, Form No. 39, in which there was a statement under the heading of " ImproveÂments made by the tenant " of deductions, with the sums allowed, for "Fences" and " Buildings" respectively, without further particularising these improvements ; and a statement that the holding was subject to the Ulster Tenant-right Custom, but that no special deduction had been made when fixing a fair rent on account thereof : Held, that the order of the Land Commission was good on its face as sufficiently complying with sect. 1 of the Land Law Act, 1896. APPEAL by the Earl of Gosford from an order of the Queen's Bench Division refusing to make absolute conditional orders for writs of certiorari to remove into that Court for the purpose of being quashed the orders made by the Land Commission on the 31st May, 1897, on the rehearing of the cases of Lord Gosford as landlord and William Rooney and Robert Shepherd as tenants, and for a mandamus to compel the Land Commission to hear and determine the said applications according to law. It appeared that several tenants on Lord Gosford's estate in the county of Armagh applied to the Land Commission to fix a second term of fair rents. In Rooney's case the tenant's former rent was £41 108. which was reduced to £31 5s. by order of the Sub-Commission dated the 19th December, 1896. In the schedule filed in pursuance of section 1 of the Land Law Aet, 1896, the Sub-Commission set out at No. 7 as VOL. II.] QUEEN'S BENCH DIVISION. 401 improvements on the holding made wholly or partly by the tenant Appeal. or at his cost :— 1898. Capital Value. Increased Letting Value due thereto. Deduction from rent on account of each such improvement. £ s. d. £ s. d. £ s. d. Fences, . . . . 72 0 0 3 12 0 3 12 0 Buildings, . . . 350 0 0 17 10 0 17 10 0 Removing Boulder Stones over Farm. 30 0 0 1 10 0 1 10 0 422 perches of Drains, . 28 2 8 1 8 1 '1 8 1 50 perches of Drains, . 3 6 8 0 3 4 0 3 4 Total deduction for Improvements, . £24 3s. 5d. They also stated in the schedule as follows :— 8. State any other matters in relation to the holding that have been taken into account in fixing the fair rent. This holding is subject to the Ulster Tenant-right Custom, but no special deduction has been made when fixÂing a fair rent on account thereof. The landlord and the tenants each applied for a rehearing before the Land Commission, and before the case came on to be heard, the Land Commission referred the schedule and order of the Sub-Commission to J. F. Bomford and T. M'Afee, two assistant Commissioners appointed by the Lord Lieutenant in pursuance of section 43 of the Land Law Act, 1881, to report thereon to the Land Commisssion. There was no order of the Land Commission directing the two valuers to make a report, but a form of directions was sent to them which stated :—" An appeal having been lodged in this case, you are to visit the holdÂing ; and 1, if you concur with the schedule recorded by the Court, and their conclusion as to fair rent, report so on Form A at foot of this page ; 2, if you see reason to differ substantially therefrom, report on Form B within, stating concisely, under the respective headings the matter only as to which you differ, and the consequent variations upon which your estimate of 402 THE IRISH REPORTS. [1899. Appeal. the fair rent of the holding has been arrived at." Messrs. 1898. Bomford and M'Afee had previously acted as members of THE QUEEN various Sub-Commissions in the county of Armagh. They v. IRISH LAND visited and inspected the holdings, and reported that they COMMISSION. concurred with the Sub-Commission. When the cases came on to be heard before the Land Commission, the solicitor for the landlord requested the Court that in considering the cases they should not take into consideration as evidence the order and schedule of the Sub-Commission or the Court valuers' report. The Court stated that they had already decided that these docuÂments were evidence. The landlord's solicitor then asked them to state a case for the decision of the Court of Appeal of four quesÂtions which were formulated in writing, or in the alternative for leave to appeal :— On the 31st May, 1897, Bewley, J., delivered judgment, refusing to state a case, and refusing leave to appeal, and confirmÂing the rents fixed by the Sub-Commission in Rooney's case and Shepherd's case. On a subsequent day conditional orders were made by the Queen's Bench Division on the application of Lord Gosford, for writs of certiorari to bring up and quash these orders on the following grounds : 1. That the order in the premises was made without and in excess of jurisdiction. 2. That the Land Commission upon the rehearing acted upon evidence not given upon oath or in open Court or in the presence of the parties. 3. That the said Land Commission prior to the said rehearing referred the subject-matter for their decision upon said rehearing to certain persons for a report to the said Land Commission, which report was afterwards used as evidence upon said rehearing. That the said subject-matter of their decision was not a matter that had arisen before the said Land Commission in determining any quesÂtion relating to the holding, nor were said persons " an independent valuer." 4. That the matters referred to said persons include matters of law and other matters which the Land Commission were not authorised to refer to them. II.] QUEEN'S BENCH DIVISION. 403 5. That there was no rehearing as required by law. .Appeal. 6. That the said Land Commission received and acted upon 1898. the report as evidence...