De Vesci (Viscountess) v O'Connell

JurisdictionIreland
CourtHouse of Lords (Ireland)
Judgment Date22 May 1908
Date22 May 1908

CHANCERY DIVISION

Before LORD LOREBURN, C., and LORDS ASHBOURNE, MACNAGHTEN, JAMES OF HEREFORD, ROBERTSON, ATKINSON, and COLLINS.

EVELYN, VISCOUNTESS DE VESCI, AND OTHERS,
Appellants;

CHARLES O'CONNELL,
Respondent.

Ealton's CaseELR 17 Ch. D. 746.

Ex parte WaltonELR 17 Ch. D. 746.

Hill v. East and West India Dock CompanyELR 9 App. Cas. 456.

Hill's CaseELR 9 App. Cas. 448.

House of Lords — Competency of Appeal — Land Judge ——— Redemption of liability for rent out of estate indemnified therefrom — Right over against indemnifying lands — Priority — Construction of statute.

H. L. EVELYN, VISCOUNTESS DE VESCI, AND OTHERS, 1908. APPELLANTS ; CHARLES O'CONNELL, RESPONDENT (1). March 24. May 22. House of Lords—Competency of Appeal—Land Judge—Land Law (Ireland) Act, 1896 (59 4- 60 Vict. c. 47), sect. 31, sub-sect. 4 ; sect. 33, sub-sect. 4 —Land Purchase Acts—Redemption of liability for rent out of estate indemnified therefrom—Right over against indemnifying lands—Priority —Construction of statute. Upon appeal to the House of Lords from the decision of the Court of Appeal ([1907] 1 I. R. 311, sub nom. In re Thomson's Estate ; O'Connell, Petitioner):— Held (Lord Ashbonrne dubitante), that notwithstanding sect. 31, sub-sect. 4, of the Land Law (Ireland) Act, 1896, which confers certain powers on the Land Judge, in like manner as if he were the Land Commission, the appeal lay. Held, also, that the order of the Court of Appeal should be reversed, and that of Mr. Justice Ross ([1907] 1 I. R. 190) should be restored. APPEAL by Viscountess de Vesci and others in the same interest from the order of the Court of Appeal, reported [1907] 1 I. R. 311, reversing the order of Ross, J., ibid. 190. The responÂdent made a preliminary objection that no appeal lay to the House of Lords on the ground that, under sect. 31, sub-sect. 4, of the Land Law (Ireland) Act, 1896, the Land Judge in exercising the power of redemption in the present case acted under the statute in like manner as if he were the Land Commission (2). (1) Before LORD LoREsuRri, C., and LORDS ASHBOURNE, MACNAGHTEN, JAMES OF HEREFORD, ROBERTSON, ATKINSON, and COLLINS. (2) " Where a holding is sold by the Land Judge to the tenant thereof, and an advance under the Land Purchase Acts is made for the purpose, the Land Judge shall have the powers of apportionment and redemption conferred on the Land Commission by sections 15 and 16 of the Land Law (Ireland) Act, 1887, and by section 20 of the Purchase of Land (Ireland) Act, 1891, as the same are amended and extended by this Act, in like manner as if the Land Judge were the Land Commission." LORD LOREBURN, C. (1) : My Lords, in the case of this preliminary objection, I think it fails. The sole ground upon which it is said that an appeal to the House of Lords is excluded is that the Land Judge must be treated as though he were the Land Commission, by virtue of sect. 31, sub-sect. 4, of the Act of 1896 ; otherwise it is not questioned, and cannot be questioned, that an appeal would lie. I think there is no ground for the objection. The section referred to is the case of a Court receiving new powers; and the measure of competence by which these powers are given is indiÂcated by the words, that the Land Judge shall have the powers " in like manner as if the Land Judge were the Land CommisÂsion." That does not affect the appealability of the Laud Judge. LORD ASHBOURNE : My Lords, this is a very important preliminary objection which has been discussed before your Lordships with a great deal of force in resistance to the objection made. I confess that, although I am aware that your Lordships have all arrived at the conclusion announced by my noble and learned friend the Lord Chancellor, I entertain most substantial doubts in regard to the case and to the validity of the objection. I would be disposed myself to think that it was not the idea in framing this section that this jurisdiction was left open. Although, therefore, as regards the conclusion arrived at, I am prepared to acquiesce in its soundness owing to the weight of authority of those who hold that opinion, I myself entertain as regards the matter very considerable doubt. (1) The report of the judgments in the House of Lords has been printed. from the shorthand notes of Messrs. W. B. Gurney & Son. 454 THE IRISH REPORTS. [1908. LORD JAMES OF HEREFORD : My Lords, I concur. LORD ROBERTSON : My Lords, in the view which I take, the true starting-point. of this question is, that we have here under appeal a decision of the Court of Appeal in Ireland. -Unless it is demonstrated that the jurisdiction which the Court of Appeal was exercising was that of an arbiter and not in its ordinary functions, I should hold that an appeal lay unless there were words of definite excluÂsion. Accordingly, finding, as I do here, a judgment of the Court of Appeal, and not being pointed to anything that takes away the right of the subject to appeal against that tribunal to the King in Parliament, I am constrained to hold that an appeal lies. Accordingly, I absolve myself from a minute tracing of the several jurisdictions of the Land Commission and the Land Judge, and rest my judgment upon the simpler ground. LORD ATKINSON : My Lords, I understood that the Land Judge had, before the passing of the Act of 1896, powers somewhat kindred to those that are conferred upon him by this section, namely, to apportion incumbrances and rents and distribute purchase-moneys ; and in the exercise of that jurisdiction the orders which be made would have been subject to appeal to the Irish Court of Appeal, and from that Court to this House. My Lords, I cannot come to the conÂclusion that the object of the section of the Act of 1896 to which your Lordships have been referred, was to alter those powers so much as to render them no longer subject to appeal to this House. I think they are merely conferring upon him extended powers very much of the same nature that be exercised before, and to effect similar objects, and, therefore, I think there is nothing in the objection. LORD COLLINS :- My Lords, I am of the same opinion. The arguments of the appeal on the merits were proceeded with. Ronan, KC., Herbert Wilson, K.C., and R. H. Macrory, for the appellants. D. F. Browne, KC., and J. H. Pigot, for the respondent...

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