THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
PRACTICAL GUIDE
TO THE LAW OF
TENANT COMPENSATION
AND
FARM PURCHASE,
UNDER
THE IRISH LAND ACT.
PRACTICAL GUIDE
TO THE LAW OF
TENANT COMPENSATION
AND
FARM PURCHASE,
UNDER
THE IRISH LAND ACT.
I
BY
ROBERT DO NNELj^ j M.A.;
BARRISTER-AT-LAW ;
BARRINGTON LECTURER ON SOCIAL SCIENCE J
GOLD MEDALIST IN JURISPRUDENCE AND POLITICAL ECONOMY,
QUEEN'S UNIVERSITY IN IRELAND.
" The magic of property turns sand to gold."
Arthur Young.
DUBLIN:
JOHN FALCONER, 53, UPPER SACKVILLE-STREET.
1871.
[Entered at Stationers' Hall.']
DUBLIN: JOHN FALCONER, PRINTER, 53, UPPER SACKVILLE-STREET.
I * -*
/!
PTf
PREFACE.
Having been engaged on inquiries into the Ulster
tenant-right, and the general relations of landlord and
tenant in Ireland prior to and during the passing of
the Land Bill, it was suggested to me that I might
usefully edit the Act. A statute of this sort, dealing
with novel principles, reversing and modifying previous
presumptions of the law, legalizing directly and indirectly
many of the customs and usages of the country, and
based throughout on the actual circumstances of society
as developed in the dealings of landlords and tenants
in Ireland, cannot but be made more intelligible by a
fair and candid statement of those customs, usages, and
circumstances. Whatever my success, I can safely say
I have spared neither pains nor conscientious endeavour
to investigate and state the truth. A remedial statute
must have much light thrown upon its meaning by
an exposition of the mischief it is intended to meet.
Without a proper understanding of the causes and
reasons of an Act, its language is often liable to doubt or
misconstruction. This is especially true of the present
statute. The Ulster custom, put in the forefront of
the Act, and left without definition, necessitates some
preliminary acquaintance with it, on the part of those
charged with the duty of administering the law which
legalizes it. This is as indispensable in the other
412779
VI PREFACE.
provinces as in Ulster. Usages " in all essential par-
ticulars " corresponding with the Ulster custom, and
these only, are legalized outside Ulster. Not only this,
but the tenant-right of the North, analysed into its
elements, supplied the basis on which the general pro-
visions of the Act as to compensation were framed.
The Bill, as originally introduced into the House of
Commons, with few exceptions, borrowed all the leading
features of its first part from the Ulster custom. Some
of these features were afterwards more or less modified
in the Committees of both Houses; but the original
resemblance still remains substantially unchanged. The
custom, then, of the Northern Province, will prove a
safe guide to the inner mechanism of this portion of the
Act. Special attention has, therefore, been devoted to
the Ulster tenant-right, in order to give the reader a
full and fair account of its incidents, compiled from
Reports presented to Parliament, and the evidence of
the best authorities in Ulster on the subject. The
volume contains the Act, Notes upon it section by
section, and the Rules (Parts I. and II.), with Forms
and Schedule of Fees. I have added, as being gene-
rally useful and closely related to the present sub-
ject, the new Law of Stamps on Leases, and the
Limited Owners' Residences Act, 1870. The valuable
decisions of Mr. Justice Fitzgerald on the Land
Appeals at the Antrim Spring Assizes, 1871, and
the reported decisions of the Chairmen at the Land
Sessions, have been appended. The Notes have been
made as plain and practical as possible, and it is hoped
PREFACE Vli
will be of assistance to landlords, agents, and farmers,
as well as to professional readers. Mere repetition of
the words and plain provisions of the Act has been
avoided. The Notes are not so connected as a regular
treatise ; but such a form of commentary is not without
its advantages ; and its disadvantages have been obviated,
as far as possible, by constant references and a copious
Index, the compilation of which involved no small
amount of labour. It only remains for me to say that
I have conscientiously endeavoured to interpret the Act
fairly and temperately, with a mind freed from bias or
prejudice in favour of either landlord or tenant. The
spirit in which I have written is, I most fondly hope,
that spirit of impartial justice to all classes in which, I
believe, the Act was framed, and in which, I have no
doubt, it will be administered. There have been gloomy
predictions of discord and litigation as the fruit of this
great measure. It is true, we must expect an initial
period of ascertainment of rights and adjustment of
liabilities newly created ; but no one accustomed to the
study of social phenomena can doubt that the not distant
result of an Act framed and administered in that spirit
of " equal and indifferent justice," which " no people
under the sun doth love better than the Irish," will
be to strengthen the ties which bind together all classes
in community of interest and social harmony.
33, Gbeat Chables-street, Dublin,
nth March, 1871.
CONTENTS.
PAGE
Table of Cases cited, ...... xiii
Index of Authors cited, - - - - - xv
Introductory Analysis:
Application of the Act, - - - - 1
Legalization of Tenant-right, - - - - - 3
Compensation to Out-going Tenants, - - - -4
Classification of Tenancies in reference to Compensation, - 4
For Disturbance under Section 3, - - - 8
Definition of Disturbance, - - - 9
Nature and Amount of Compensation for Disturbance, 1 1
The Scale, - - - - - 11
The Provisoes to the Scale, - - - 12
For Improvements under Section 4, - - - 14
Presumption as to Improvements, - - - 17
Register of Improvements, - - - - 18
For In-coming Payments under Section 7, - - 19
For Away -going Crops under Section 8, - - - 19
Proceedings to obtain Compensation, - - - - 20
The Court of Arbitration, - - - - 22
The Civil Bill Court, - - - - - 22
Extension of Leasing Powers, - - - - - 23
Sale to Tenants of their Holdings, to promote Peasant Pro-
prietorship, - - - - - -24
Advances of Money by Board of Works, - - 26
To facilitate Payment of Compensation, - - - 26
To promote Cultivation of Waste Lands, - - - 26
To promote Peasant Proprietorship, - - - 26
Restrictions on Notices to Quit, and on short or precarious
Tenures, - - - - - - 28
Relief of Tenants in respect of Grand Jury Cess and Rent of
Land covered by Public Roads, - - - - 29
Notes and Comments, Legal and Practical, - - - 31
X CONTENTS.
The Landlobd and Tenant (Ireland) Act, 1870
Part I.
PAGE
Law of Compensation to Tenants, - - - - 183
Claim to Compensation, - - - - - 183
Proceedings in respect of Claims, - - - - 197
Court to award Compensation, .... 200
Powers of Limited Owners, ..... 204
Part II.
Sale of Land to Tenants, ..... 208
Part III.
Advances by and Powers of Board, - - - - 213
Part IV.
Supplemental Proceedings.
As to Legal Proceedings and Court, - 220
Part Y.
Miscellaneous.
Mode of Payment of Grand Jury Cess, ... 223
Rent of Land covered by Public Roads, - - - 225
Tenancies-at-will, ...... 225
Definitions, - - - - - - 225
Application of Act to Holdings, .... 227
Title of Act, - - - - - - - 227
Application of Act to Ireland, ..... 227
Schedule.
Arbitrations, - ...... 228
Table for Redemption of Annuities or Rent-charges, - - 230
Roles (Pabt I.) by the Coort fob Land Cases Reseeved, - 231
Proceedings in respect of Claims, .... 231
Service of Notices of Claim, ..... 232
Service of Notices of Dispute, ----- 233
Entry in Court of Notices of Claim and Dispute, - - 233
Registration of Improvements, .... 234
CONTENTS.
XI
Practice cf the Court, ...
Fees for Proceedings under the Act,
Taxation of Costs, ...
Regulations as to Clerks of the Peace, -
Deposits by Landlords of Compensation Money,
Appeals, ....
Arbitration, ....
Limited Owners, ...
Definitions, ....
PAGE
- 235
- 235
- 235
- 236
- 237
- 237
- 238
- 239
- 241
Appendix to the Rules (Part I.)
Forms for use in Ordinary Land Cases, ... 242
Notice of a Claim for Disturbance, ... 242
Notice of a Claim for Improvements only - - - 243
Notice of a Claim by an Ulster Tenant, in case of Disturb-
ance, not claiming under the Ulster Tenant-right
Custom, - - - - - -243
Notice of a Claim in respect of an Ulster Tenant-right
Custom, ...... 244
Notice of Dispute of the whole Claim, - - - 244
Notice of Dispute of a Portion of a Claim, - - 245
Decree, ------- 245
Dismiss, ....... 247
Decree on a Claim under an Ulster Tenant-right Custom, 247
Dismiss of a Claim under an Ulster Tenant-right Custom, 248
Submission to Arbitration and Appointment of Arbitrators
and Umpire, ------ 248
Forms for use in Cases of Limited Owners, - - - 249
Application for a Charging Order in respect of Compen-
sation paid, ...... 249
Affidavit verifying same, .... 250
Notice on Person having first Estate of Inheritance, 251
Charging Order in respect of Compensation paid, - - 251
Application by a Limited Owner for an Order of Confir-
mation of a Lease, ..... 252
Verification, ------ 253
Application by a Tenant for Order of Confirmation of a
Lease, ...... 253
Verification, - - - - - - 253
Schedule (A) Schedule of Fees referred to in Rule 24,
- 255
Xll CONTENTS.
PAGE
Rules (Part II.) by the Privy Council for carrying out
Sales through the Landed Estates' Court, - - 257
Forms and Directions, ..... 263
Agreement for Sale under Section 32, ... 263
Statement for carrying into Effect a Sale under the Act, - 264
Schedules to Statement, ----- 266
Variation in Statement where the "Vendor is himself a
Tenant for life, and where the Purchase-money is to be
paid over to Trustees who do not act as Vendors, - 267
Variations where the Vendors are Trustees for Sale, and
where the Land is held (together with other Lands not
sold) under a Lease or Grant, .... 268
Application to carry into Effect a Sale under Part II. of
the Act, - - - - - - 268
Conveyance to a Purchasing Tenant under Part II. of the
Act, - - - - - - - 269
Certificate of Payment at foot of Conveyance, - 269
Stamps on Leases, ...... 271
Limited Owners' Residences Act, 1870, - 277
Decisions op Mr. Justice Fitzgerald on Land Appeals, - 281
Decisions op Chairmen at Land Sessions, - - - 289
General Index, ------- 295
TABLE OF CASES CITED.
PAGE
Attorney-Gen. v. Parsons,
- 141
Beaufort v. Neald
- 122
Bell v. Nangle,
- 77
Bessell v. Landsbery,
- 130
Bickford v. Parson,
- 89
Booth v. M'Manus,
- 93
Boraston v. Green,
- 125
Bottomley v. Forbes,
- 55
Bourke v. Blake, -
- 96
Bourne v. Gatcliffe,
61, 63
Brown v. Byrne, -
- 61
Brown v. Crump, -
- 89
Browne v. Sligo, -
- 91
Bryant v. Foot,
- 47
Burgess v. Wickham,
- 61
Burke v. Prior,
92
Buron v. Denman,
- 166
Butler v. Smith,
- 91
Cainham v. Barry,
- 92
Cairncross v. Levison, -
- 121
Carpenter v. Parker,
- 78
Carroll v. Doyle
- 294
Clapham v. Langton,
- 61
Clark v. Roystone,
- 60
Collins v. Blantern,
- 96
Comiskey v. Brown,
- 93
Coppinger v. Gubbins, -
- 77
Corbett v. Cary,
- 294
Coupland v. Maynard, -
- 129
Cox v. Bent,
- 84
Croft v . Lumley, -
- 163
Dalby v. Hirst, - - 47, 48, 55
Dale v. Humfrey, - - - 60
Damery v. O'Callaghan, - 291
Darragh v. Murdock, - 281, 291
Dimich v. Corlett, - - - 147
Doe d. Bishop of Rochester v.
Bridges, - - - - 129
Doe d. Cates v. Somerville, - 95
Doe d. Collins v. Weller, - 76
Doe d. Gray v. Stanion, - 129
Doerf.Hollingsworthv.Stennelt, 94
Doe d. Hull v. "Wood, - - 94
Doe d. Lyster v. Goldwin, 166,171
Doe d. Mann v. Walters, - 166
Doe d. Marriott v. Edwards, - 171
Doe d. Mitchinson v. Carter - 163
Doe d. Murrell v. Mil ward, - 130
Doe d. Rhodes v. Robinson, - 166
Doe d. Thomas v. Roberts, - 76
Doe d. Thomas v. Amey, - 94
Doe d. Tucker v. Morse, - 76
Faviell v. Gaskoin, 47, 58, 60
Fawkes v. Lamb, - - - 61
Featherstone v. Hutchinson, - 96
Fegan v. Waring, - - 290
Forsythe v. Darby, - 290, 293
Goodright v. Davies,
- 91
Gore v. O 'Grady, -
- 88
Green v . Price,
- 96, 110
Gregg v. Wells,
- 122
Harrison v. Wright,
- 122
Hawkins v. Kemp,
- 92
Haydon's case,
- 169
Hayling v. Okey, -
- 125
Hill v. Lord Antrim,
- 282
Hilton v. Eckersley,
- 110
Hoby v. Roebuck,
- 107
Holding v. Pigott,
- 125
XIV
TABLE OF CASES CITED.
PAGE
Horsefall v. Mather, - - 89
Howard v. Hudson, - - 122
Howard v. Sherwood, - -77
Howden v. Haigh, - - 96
Hutton v. Warren, 41,47,49,60,61
Hyatt v. Griffiths, - - 94
Hyde v. Roche, - - - 174
Jenkins v. Harvey, - - 47
Jones v. Phipps, - 166, 172
Juggomohun v. Ghose, - - 52
"Kehoe v. Croker, - - 291
Kerr v. Steele, - - - 294
Leach v. Thomas, - - - 89
Lee v. Smith, - - - 94
Legh v. Hewitt, - - - 48
Lewis v. Marshall, - - 59
Lucas v. Bristowe, - - 61
Lyle v. Bernard, - - 169
Lyon v. Reed, - - -130
Mallan v. May, - - - 96
Martyn v. Clue, - - - 60
M'Chesneys v. Delacherois, - 294
Meerihy v. Stacpoole, - - 294
Molony v. Garrihy, - - 293
Moore v. M'Cartney, - - 289
Moss v. Gallimore - - 172
Mousley v. Ludlam, - 49, 55
Muncey v. Dennis, - - 60
Nick ells v. Atherstone, - - 130
Offen v. Harman, - - - 92
Palmer v. Moxon, - - 91
Parker v. Ibbetson, - - 61
Pormenter v. Webber, - - 129
Powley v. Walker, - - - 89
Price v. Ley burn, - - -107
Rex v. Joliffe,
Rickard v. Sears, -
Roberts v. Barker,
Robertson v. Bruce,
Roe d. Henderson v. Charnock
Rogers v. Humphreys,
PAGE
47
122
60
292
59
171
Russian Steam Nav. Co. v. Silva, 59
Saul v. Keown, - - 293
Savage d. Davis v. Davis, - 91
Seniors. Armitage, 41, 59, 61
Short v. Atkinson, - - 125
Sloan v. Thompson, - - 281
Stradbroke v. Mulcahy, - - 174
Sutton v. Temple, - - - 60
Tanistry case,
-
57
Tayleur v. Wildin,
-
77
Thackall v. Rosier,
-
96
Thorpe v. Eyre,
-
124
Tomkins v. Ashby,
-
166
Trent v. Hunt,
-
171
Trick ett v. Tomlinson, -
-
122
Trumper v. Cardwardine,
-
61
Tyson v. Smith,
-
57
Vallance v. Dewar,
.
59
Vincent v. Godson,
-
94
Waite v. Jones, - ^
.
96
Walker v. Crommelin, -
-
91
Webb v. Plummer,
-
60
Weddall v. Capes, -
-
129
Westmeath v. Hogg,
-
93
White v. Nicholson,
-
60
Wiglesworth v. Dallison,
40,
55,
61,
127
Wilkins v. Wood, 41, 47, &
!, 61
Wilkinson v. Colley,
.
166
Williams v. Sawyer,
-
129
Wormsley v. Dalby,
-
53
INDEX OF AUTHORS CITED.
PAGE
Bayldon, Valuation of Rents and Tillages, - 176, 178-181
Blackstone's Commentaries, by Stephens, - - 46
Do. do., by Broom, - - - -52
Bowyer's Civil Law, - - - - - 57
Broom's Commentaries, - - - - - 52, 55
Broom's Maxims, - - - - - 51, 57
Brooke, Irish Land Act, - - - - - -164
Bullen and Leake, Precedents of Pleadings, - - 46, 138
Campbell, Geo., The Irish Land, - - - - -117
Chitty, Precedents in Pleading, - - - - - 46
Coke, Complete Copyholder, - - - - - 141
Coke upon Littleton - - - 46, 51, 55, 57, 88, 92, 141
Cole's Law of Ejectment, - - - - - - 77
Cooke, Wingrove, Agricultural Tenancies, - 40, 51, 55, 175
Coppinger's County Court Practice, by Johnstone, - 157
Crawford, W. Sharman, Esq., M.P., Bill of, 36
Dixon's Law of the Farm, - - 52, 60, 80, 103, 175, 179
Dwarris and Amyot on the Statutes, - - - - 166
Facts and Observations of the Irish Landowners' Committee, - 83
Ferguson's Practice, - - - - - -155
Finlason's History of the Law of Landed Tenures, - 57, 103, 115, 116
Fisher's Law of Mortgage, ..... 171
Fortescue, Right Hon. C. P., Speech of, 7th March, 1870, - 31
Furlong's Law of Landlord and Tenant, by La Touche, 124, 125, 126,
147, 167
Gladstone, Right Hon. W. E., Speech of, 15th Feb., 1870, - 34
Hancock, Dr. W. N., Reports of, on the Landlord and Tenant
Question in Ireland, - - - - - 33, 46, 276
Do. do., The Tenant-right of Ulster considered Eco-
nomically, - - - - - - 39
Do., do., Impediments to the Prosperity of Ireland, - 271
Hodges, Lessons in Chemistry, ..... 181
XVI INDEX OF AUTHORS CITED.
PAGE
Justinian's Institutes, - - - - - 57, 115
Low, Elements of Practical Agriculture, - - - 179, 180
Lurgan, Lord, Speech of, 17th June, 1870, - - 32, 44, 81
Maclagan, P., M.P., Land Culture and Land Tenure in Ireland, - 45
Malthus, Principles of Political Economy, - - - 149
Mill, J. S., Principles of Political Economy, - 112, 148, 271
Morris on the Irish Land Act, - - - - - 31
Morton, Cyclopaedia of Agriculture, - - 176,178,181
M 'Knight, Dr. James, The Ulster Tenant-right, - - 40, 56
Noy's Maxims, - - - - - - - 57
Report of Committee on Agricultural Customs, - - - 49
Report of Land Occupation (Devon) Commission, 38, 39, 40, 41, 42,
43, 44, 45, 71, 113, 114, 116, 181
Reports of Poor Law Inspectors on the existing Relations of Land-
lord and Tenant in Ireland, 32, 36, 38, 39, 40, 41, 43, 45, 54,
62, 69, 70, 71, 82
Report of Lord Clanricarde's Committee, 1867, 42, 45, 68, 113, 271
Report of Mr. Maguire's Committee, 1865, - - 113,153
Sedgwick's Law of Damages, - - - - - 85
Smith's Leading Cases - - - 41, 60, 96, 170
Stephens, Manual of Practical Draining, - - - - 112
Story, Equity Jurisprudence, ..... 147
Taylor's Law of Evidence, - - - - 52, 60, 86
Taylor's Civil Law, - - - - - - 57
Thompson, Ireland in 1839 and 1869, - - - - 114
Williams, Law of Executors, ..... 134
Woodfall, Law of Landlord and Tenant, 41, 47, 88, 89, 124, 125, 134,
136, 138, 147, 163, 166, 170, 175, 178
INTRODUCTORY ANALYSIS.
The objects of the Act are
A Legalization of Tenant-right.
B Compensation to Out-going Tenants.
C Extension of the Leasing Powers
of Limited Owners.
D Sale to Tenants of their Holdings,
to promote Peasant Proprietor-
ship.
E Advances of Money by the Board
of Works to facilitate Payment
of Compensation, and to promote
Peasant Proprietorship, and the
Cultivation of Waste Land.
F Restrictions on Notices to Quit, and
Short or Precarious Tenures.
G Relief of Tenants in respect of
Grand Jury Cess, and Rent of
Land Covered by Public Roads.
THE APPLICATION OF THE ACT.
The holdings to which the Act applies generally f P 2^*j n
are all holdings agricultural or pastoral, or partly generally,
agricultural and partly pastoral; and the term
holding is defined to include all land of the above
character heljl by the same tenant, of the same
2 Introductory Analysis.
landlord, for the same term, and under the same
contract of tenancy (sec. 71). But the following
Holdings classes of holdings are excluded from all its
excluded t ,
from ail provisions as to compensation :
Compensa- * iitii-ii
tion. (1.) Any holding held by the tenant as a hired
servant or labourer of the landlord.
(2.) Any letting in con-acre, or for feeding
and keeping cattle, or any land let
temporarily for grazing.
(3.) Any holding set and expressed in the
document by which it is let to be for
the temporary convenience, or to meet a
temporary necessity, either of the land-
lord or tenant, and the letting of which
has determined by reason of the cause
having ceased which gave rise to the
letting.
(4.) Any cottage allotment not exceeding a
quarter of an acre.
Holdings And the following holdings are excluded from
excluded t \
from com- its provisions as to compensation, except compen-
jiensation for r i. ' i i
Disturbance. sa tion for improvements (sec. 4), and compensation
for money paid when coming into the holding
(sec. 7) :
(1.) Demesne land.
(2.) Townparks, which bear an increased value
as accommodation land, and are in the
occupation of a person living in the city
or town they adjoin, or its suburbs.
(3.) Any holding wholly or mainly pastoral,
valued at not less than 50 a-year annual
value, or the tenant of which does not
actually reside thereon, unless such
Introductory Analysis. 3
holding adjoins or is ordinarily used
with the holding on which such tenant
actually resides.
Suppose a tenant comes within the scope of the
Act, as above set out, he has in the next place to
inquire, is his holding subject to a tenant-right
custom or usage ? If so, there are special
provisions
I. Legalizing tenant-right.
II. Giving compensation according to the
tenant-right usage.
But as the Act gives him the choice of claiming,
with the consent of the Court, compensation under
other sections of the Act, he will also require to
know, if he claims compensation, what are the
provisions in these sections under which he may
claim, in order that he may be able to decide
whether it will be for his advantage to exercise
this choice.
A Legalization of Tenant-right.
The usages prevalent in the province of Ulster, JffffjjJJ? 11
known as the Ulster tenant-right, and in the right -
case of a holding not situate within the province of
Ulster, usages which in all essential particulars
correspond with the Ulster tenant-right, are
declared to be legal, and bind from henceforth
both landlord and tenant (sees. 1, 2).
But where the landlord has purchased or
acquired, or shall hereafter purchase or acquire
from the tenant the benefit of such usage, to which
the holding is subject, the holding shall henceforth
cease to be subject to such usage (sees. 1 and 2),
4 Introductory Analysis.
but Avill immediately fall under the general pro-
visions of the Act in favour of tenants.
B Compensation to Out-going Tenants.
tofoout- There are seven classes of holdings to which
Tenants. the provisions on this subject apply, and which,
as they are differently dealt with, require to be
separately noticed.
acfordS^ ! Tenants of holdings subject to the Ulster
compensa- tenant _ r ight custom.
II. Tenants of holdings outside Ulster, subject
to usages in all essential particulars corresponding
with the Ulster tenant-right custom.
III. Existing yearly tenants of holdings not
subject to tenant-right usages, and valued under
the Valuation Acts at not more than 100 annual
value, disturbed by the act of their immediate
landlords.
IV. Yearly or leasehold tenants, or tenants-at-
will, or for less than from year to year, not holding
for temporary convenience or necessity, under
tenancies created after the passing of the Act
(except those holding under a lease, made after
the Act, for a term certain of not less than 31 years),
if disturbed in their holdings by the act of the
landlord.
V. Tenants of holdings under lease, made after
the Act, for a term certain of not less than 31
years, if disturbed by the act of the landlord or
quitting voluntarily.
VI. Tenants of holdings under lease, made
before the passing of the Act, for a term certain
of not less than 31 years, or for a term of a life
Introductory Analysis. 5
or lives, with or without a concurrent term of
years, and which leases shall have existed for 31
years before the making of the claim.
VII. All other tenants under lease, made before
the Act, all existing yearly tenants, if disturbed
otherwise than by their immediate landlord, and
all other tenants not included in any of the
preceding classes.
I. Compensation to tenants of holdings subject Class L
to the Ulster tenant-right custom. As already
stated, the usages prevalent in the province of
Ulster, known as the Ulster tenant-right custom,
are made legal by clause 1, and are enforceable
in the manner provided by the Act. As com-
pensation to an out-going tenant is a main (but
by no means the only) point of this custom, this
will be regulated in the case of each holding by
the usage to which the holding is proved to be
subject ; and a tenant obtaining the benefit of the
usage is not to claim compensation under the other
clauses which are intended to embody the main
features of these usages. But such a tenant, if he
chooses to forego his claim under the custom, may,
with the consent of the Court, claim compensation
for disturbance under section 3, compensation for
improvements under section 4, and compensation
for away-going crops under section 8 of the Act.
Where the tenant has made and been allowed this
option, the holding shall not again be subject to the
Ulster tenant-right custom, but shall thenceforth be
subject to the general provisions of the Act. The
nature of the compensation, sections 3, 4, and' 8,
will be stated further on. The provisions of these
I) Introductory Analysis.
sections, together with section 7, embody the
elements of the Ulster tenant-right, but subject
to certain restrictions, and where the Ulster custom
does not reach its ordinary proportions, it may be
to the tenant's advantage to exercise the option.
Class ii. II. Compensation to tenants of holdings outside
Ulster, holding subject to usages in all essential
particulars corresponding with the Ulster Tenant-
right custom. The provisions applicable to the
first class are in all respects applicable to this class
except as to the optional claim, which such tenants
may, with the consent of the Court, make. This
class of tenants have a double option. They may
claim compensation for disturbance under section 3,
compensation for improvements under section 4,
and compensation for away-going crops under
section 8, just as the Ulster tenants may; or they
may claim compensation for improvements under
section 4, compensation for away-going crops under
section 8, and compensation in respect of payment
to in-coming tenant, under section 7.
class in. III. Compensation to existing yearly tenants of
holdings not subject to tenant-right usages, valued
under the Valuation Acts at not more than 100
annual value, disturbed by the act q/7/jm , iMMEDiATE
landlords. Such tenants are entitled to compensa-
tion for disturbance under section 3, compensation
for away-going crops under section 8, and compen-
sation for all improvements under section 4, as well
as (if compensation under section 3 is not claimed
or obtained), compensation for in-coming payments
under section 7.
ciass iv. IV. Compensation to tenants, yearly or leasehold,
Introductory Analysis. 7
or tenants-at-will, or for less than from year to
year, not holding for temporary convenience or
necessity, under tenancies created after the passing of
the Act (except those holding under a lease, made
after the Act, for a term certain of not less than
31 years), if disturbed in their holdings by the act
of the landlord. These tenants are entitled to
compensation for disturbance under section 3, and
for away -going crops under section 8, and to
compensation for all improvements under section
4, as well as (if compensation under section 3 has
not been claimed or obtained) compensation for
in-coming payments under section 7.
V. Compensation to tenants of holdings under Class v.
lease, made after the Act, for not less than 31 years,
if disturbed by the act of the landlord, or quitting
voluntarily. These tenants are entitled to compen-
sation for in-coming payments under section 7, and
for away -going crops under section 8, and to
compensation in respect of permanent buildings and
reclamation of waste land, and tillages or manures,
the benefit of which tillages and manures is
unexhausted at the time of the tenant quitting
his holding. But they are entitled to all improve-
ments, if it is so specially provided in the lease.
VI. Compensation to tenants of holdings under Class vi.
lease, made before the Act, for a term certain of not
less than 31 years, or for a life or lives with or
without a concurrent term of years, and which have
existed for 31 years before the making of the claim.
These tenants are entitled to compensation for
in-coming payments under section 7, not being
payments made during the existence of a lease made
8 Introductory Analysis.
before the passing of the Act, to compensation for
away-going crops under section 8, and to compen-
sation in respect of permanent buildings and
reclamation of waste land, and tillages or manures,
the benefit of which is unexhausted at the time
. of the tenant quitting his holding. They are
entitled to all improvements, if it is so specially
provided in the lease.
In common with all tenants holding under a
lease or written contract, made before the passing
of the Act, they shall not be entitled to any
compensation in respect of any improvement, the
right to which compensation is expressly excluded
by such lease or contract,
class vii. VII. All other tenants under lease made before
the Act, all existing yearly tenants, if disturbed
otherwise than by immediate landlord, and all other
tenants not included in any of preceding classes.
These are entitled to compensation for in-coming
payments under section 7, not being payments
made during the existence of a lease made before
the passing of the Act, to compensation for away-
going crops under section 8, and for all improve-
ments under section 4.
And now let us see what is the nature of the
compensation under sections 3, 4, 7, and 8.
compensa- I. Compensation for disturbance under section 3.
section 3. The consideration of this suggests two ques-
tions :
1. What is disturbance ?
2. The nature and amount of the compensation.
Introductory Analysis. 9
(1 .) What is disturbance 1 ? Generally, the service Definition of
_. ., . ,. Disturbance.
or a notice to quit, or any ejectment proceeding, or
demand of possession or resumption of the holding,
or of any part thereof, is disturbance ; but to this Wha * fc n t
i*i -i i rr\i Disturbance.
the Act has made several exceptions. Thus
(a) By section 9, " ejectment for non-payment of Ejectment
rent shall not be deemed disturbance of the tenant payment of
Rent
by act of the landlord," except in two very
important cases of ejectment for non-payment of
rent the one in the case of a tenancy exist-
ing at the time of the passing of the Act, and
continuing to exist without alteration of rent up
to the time of its determination, if the arrears of
rent for which the ejectment is brought did not
wholly accrue within the three previous years, and
if any earlier arrear remained due from the tenant
at the time of commencing the ejectment; the
other case, where, in a tenancy held at an annual
rent not exceeding 15, the Court certifies that
the non-payment of rent causing the eviction has
been an exorbitant rent. In these two cases, but
in no others, ejectment for non-payment of rent
shall be deemed disturbance.
(b) Under the same section, ejectment for breach o f or C ond1tion.
of any condition against assignment, sub-letting,
bankruptcy, or insolvency, shall not be disturb-
ance.
(c) Under the same section, " a tenant who shall J^!^ /,.
have given notice of surrender, and afterwards
refuse to give up possession, in pursuance of such
notice, though evicted by the landlord in a suit
founded on such notice," shall not be deemed to be
disturbed.
10 Introductory Analysis.
cottogeT 8 (^ Under section 10, it is no disturbance
where a landlord, " after six months' notice, in
writing, served upon the tenant, or left at his
house, resumes possession from a yearly tenant of
so much land (not to exceed in the whole a twenty-
fifth part of any individual holding) as he may
require for the bond fide purpose of erecting
thereon one or more labourers' cottages, with or
without gardens attached." In this case the tenant
can only claim compensation for improvements,
and an abatement of rent proportionate to the
annual value of the land so taken by the landlord.
Assignment. (e) Under section 13, in the case of a yearly
tenancy existing at the time of the passing of the
Act, where such tenancy is assigned without the
consent of the landlord, and the landlord does not
accept the assignee as his tenant," there shall be
no disturbance so as to found a claim under section
3 in any of the cases following :
(1.) Where the rent is in arrear at the time of
assignment, so as to render the tenant liable to
eviction for non-payment of rent.
(2.) Where it is the practice of the estate that
the assignment should be with the consent or
approval of the landlord.
(3.) Where the refusal by the landlord to
accept the assignee as tenant is reasonable.
But a bequest of the holding by will to a
husband or wife, or to anyone child or grandchild,
brother or sister, or to any one child or grandchild
of a brother or sister of the tenant, or the devolu-
tion of the tenancy upon intestacy or marriage,
is not to be deemed assignment under this section.
Introductory Analysis. 11
(/) Under section 14, where, under a tenancy Exercise of
f , ., .. . . , unnecessary
from year to year, the tenant is evicted tor nights.
persistent exercise of any right not necessary to
the due cultivation of the holding, and from which
such tenant is debarred by express or implied
agreement with the landlord, such eviction will
not be deemed disturbance by act of the landlord.
(a) Under the same section, where, under a Refusal of
. . entry to
tenancy from year to year, the tenant is evicted by Landlord,
reason of the tenant's unreasonable refusal to allow
the landlord, making reasonable amends for any
injury done, to enter for mining, quarrying, cutting
timber or turf, making roads or drains, viewing
the holding, hunting, shooting, or fishing, such
eviction shall not be deemed disturbance, unless it
is shown that the landlord persists in such eviction
after the tenant has withdrawn his refusal.
(h) " If the landlord has been and is willing to Just and
. ... . reasonable
permit the tenant to continue in the occupation of terms,
his holding, upon just and reasonable terms, and
such terms have been and are unreasonably refused
by the tenant, the claim of the tenant to compensa-
tion under section 3 shall be disallowed " (sec. 18).
(2.) The nature and amount of compensation for TheScaie.
disturbance. The compensation is in the nature of
damages for the loss sustained by the tenant in
being disturbed in his holding, and will be awarded
according to the following scale :
" In the case of holdings valued under the Acts
relating to the valuation of rateable property in
Ireland at an annual value of
" (1.) 10 and under, a sum which shall in no
case exceed seven years' rent ;
12 Introductory Analysis.
" (2.) Above 10 and not exceeding 30, a sum
which shall in no case exceed five years'
rent.
" (3.) Above 30 and not exceeding 40, a
sum which shall in no case exceed four
years' rent.
4.) Above 40 and not exceeding 50, a
sum which shall in no case exceed three
years' rent.
5.) Above 50 and not exceeding 100, a
sum which shall in no case exceed two
years' rent.
"(6.) Above 100 a sum which shall in no
case exceed one year's rent.
" But in no case shall the compensation exceed the
sum of 250."
JtaVroviwes A proviso is added to the scale, the practical
to the scale. e ff ect f wn i c h is that the lowest maximum under
stage (2) is raised to the highest maximum under
stage (1) ; and so with the other stages, the maxi-
mum under any of them is raised to the highest
maximum under a preceding stage. Its effect will
be seen in the following table, calculated for the
cases where the rent is equal to the valuation :
Valuation,
Compensation
Valuation
Compensation
1
7
7
49
2
14
8
56
3
21
9
63
4
28
10
70
5
35
11
70
6
42
12
70
Introductory Analysis.
13
Valuation
Compensation
Valuation
Compensation
13
70
33
150
14
70
34
150
15
75
35
150
16
80
36
150
17
85
37
150
18
90
38
152
19
95
39
156
20
100
40
160
21
105
41
160
22
110
42
160
23
115
43
160
24
120
44
160
25
125
45
160
26
130
46
160
27
135
47
160
28
140
48
160
29
145
49
160
30
150
50
160
31
150
&c.
&c.
32
150
The proviso, the effect of which is shown above,
increases the compensation; but there is another
proviso which acts in the opposite way. It limits
the tenants' claim. This proviso is to the effect
that " no tenant of a holding valued at a yearly
sum exceeding 10, and claiming under the scale
more than four years' rent, and no tenant of a
holding valued at a yearly sum not exceeding
10, and claiming more than five years' rent,"
shall be entitled to claim, in addition, compensation
for improvements other than permanent buildings
and reclamation of waste land.
14
Introductory A nalysis.
Deductions
from and
forfeiture of
Compensa-
tion, under
sec. 3.
Contracts.
Compensa-
tion CNDEK
Section 4.
Improve-
ments for
which Com-
pensation is
allowed.
The compensation under this section is subject
to deduction for arrears of rent or taxes, due from
the tenant and not recoverable from the landlord,
or in respect of deterioration of the holding, arising
from non-observance of any express or implied
covenant or agreement ; and this compensation is
altogether forfeited if a tenant, after the passing
of the Act, sub-divides or sub-lets without the
consent of the landlord, in writing, or who, after
he has been prohibited by the landlord or his
agent from so doing, lets in con-acre, save for
potatoes or other green crops, properly manured.
The section concludes with a very important
provision to protect tenants of small holdings
against the pressure occasionally put on them
to forego their rights, as recognized by this
section. For it is provided that " Any contract
made by a tenant by virtue of which he is
deprived of his right to make any claim which
he would otherwise be entitled to make under
this section shall, so far as relates to such claim,
be void both at law and in equity." But, by
section 12, a tenant valued at not less than 50
annual value may, by written contract with his
landlord, agree to forego any benefit which this
or any other section of the Act confers upon
him.
II. Compensation for improvements under section 4.
Improvements are defined as
(1.) " Any work which, being executed, adds to
the letting value of the holding on which it is
executed, and is suitable to such holding; also,
(2.) " Tillages, manures, or other like farming
Introductory Analysis. 15
works, the benefit of which is unexhausted at the
time of the tenant quitting his holding" (sec. 70).
Claims may be made in respect of permanent
buildings and reclamation of waste land without
limit of time.
Claims to other improvements made before 1st
August, 1870, are limited to 20 years before the
making of the claim.
But in reduction of claims for improvements
made before 1st August, 1870, the court shall
take into consideration the time during which the
tenant has enjoyed the advantage of such im-
provements ; also the rent of the holding, and any
benefit which the tenant may have received from
his landlord in consideration, expressly or im-
pliedly, of the improvements so made.
And the compensation under this section is
made liable to deduction for arrears of rent and
taxes due from the tenant and not recoverable
from the landlord, and in respect of deterioration
of the holding, arising from the non-observance of
any express or implied covenant or agreement.
No compensation is payable for the following : improve-
(1.) Any improvement made in pursuance of a which no
t . D iTi , Compensa-
contract entered into tor valuable consideration "on is
payable.
theretor.
(2.) Improvements which the landlord has
undertaken to make, except when he has failed to
perform his undertaking within a reasonable time.
(3.) Improvements, the right to compensation for
which is expressly excluded by a lease or written
contract made before the passing of the Act.
(4.) Improvements, made in contravention of a
16 Introductory Analysis.
contract, in writing, not to make such improve-
ments ; but as a contract prohibiting improvements
required for the due cultivation of the holding,
if they do not diminish the general value of the
landlord's estate, is made void in law and at
equity, improvements in contravention of such a
contract are taken out of the exception, and will
furnish claims for compensation.
(5.) A tenant of a holding which he is quitting
voluntarily, "shall not be entitled to any com-
pensation in respect of any improvement when it
appears to the Court that such tenant has been
given permission by his landlord to dispose of his
interest in his improvements to an in-coming tenant
upon such terms as the Court may deem reasonable,
and the tenant has refused or neglected to avail
himself of such permission.
(6.) " Any improvement prohibited in writing
by the landlord, as being and appearing to the
Court to be calculated to diminish the general
value of the landlord's estate, and made within
two years after the passing of the Act, or made
during the unexpired residue of a lease granted
before the passing of the Act."
Such are the improvements for which no com-
pensation will be granted.
contracts. The tenant, in case of pressure brought to
bear upon him to defeat the provisions of the
Act, is protected by a paragraph similar to that
already noticed, which makes void contracts pro-
hibiting suitable improvements, and as in the case
of the previous section also provides that
" Any contract made by a tenant by virtue
Introductory A nalysia. 1 7
of which he is deprived of his right to make any
claim which he would otherwise be entitled to
make under the section shall, so far as relates to
such claim, be void both at law and in equity."
As this provision is, however, intended for the
security of small farmers, by a subsequent section,
a tenant whose holding, or the aggregate of whose
holdings, is valued at 50 annual value, shall not
be entitled to claim compensation under this or
any other section of the Act, where he has con-
tracted in writing with his landlord that he will
not make any such claim (s. 12).
Nothing in the Act will give a tenant power or
authority under the pretence of making improve-
ments, to break up grazing or meadow lands, or
to cut timber (unless it be timber registered by
the tenant or his predecessors in title), without the
consent of the landlord.
Here may be noticed the important provision of Presumption
the 5th section, that in the case of a holding 1 not pavement*
~ were made
subject to a custom or usage, or where being so SJJjL
subject, the tenant exercises the option already
noticed, all improvements shall, until the contrary
is proved, be deemed to have been made by the
tenant or his predecessors in title. Predecessors
in title are preceding tenants to whom the tenant
has paid money or given money's worth, in respect
of the holding, or from whom he has taken such
holding by assignment or operation of law (s. 11).
There are certain exceptions to this rule as to pre-
sumption, in cases where it is more probable that
the landlord made the improvements, or where the
proof of the fact is more easy to the tenant than to
C
18 Introductory Analysis.
the landlord; but they exist only in cases where
compensation is claimed in respect of improve-
ments made before the passing of the Act.
Exceptions (i ) Where the improvements were made before
provements the landlord or his predecessors became owners of
made before *
(2.) Where the holding is under lease.
(3.) Where the improvements were made 20
years or more before the passing of the Act.
(4.) Where the holding is valued at more than
100 annual value.
(5 ) Where it is proved to have been the prac-
tice of the landlord to make the improvements on
the holding or estate.
(6.) Where, from the entire circumstances of
the case, the Court is reasonably satisfied that
such improvements were not made by the tenant
or his predecessors in title.
And where it is proved to have been the prac-
tice on the holding or the estate for the landlord
to assist in making the improvements, the pre-
sumption shall be modified accordingly (s. 5).
Register of If either landlord or tenant wishes to register
Improve- . ...
ments. any improvements he or his predecessors in title
have made before or after the Act, provision is
made for such a register in the Landed Estates'
Court; and if either party disputes the schedule
the other proposes to register, and a copy of which
is served upon him, the Civil Bill Court will
decide the question, and the schedule so settled
will be registered as evidence that the improve-
ments were made as therein mentioned. But
even this evidence, though very strong, is not
Introductory Analysis. 19
conclusive; as it may be rebutted by showing,
when a claim for improvements arises under the
Act, that the fact is otherwise (s. 6).
III. Compensation in respect of in-coming pay- compensa-
ments under section 7. section 7.
A tenant of a holding who does not claim or has compen-
. . sation for
not obtained compensation under an usage or com- incoming
- ,. , .,1 . Payments.
pensation tor disturbance will receive compensation
for money paid or money's worth given by him or
his predecessors in title when coming into the hold-
ing, with the express or implied consent of the
landlord on account of coming into the holding.
But no compensation will be given under this Exceptions.
section (1) where the tenant has been given per-
mission by his landlord on reasonable terms to
obtain satisfaction from an in-coming tenant, and
has refused or neglected to avail himself of such
permission.
(2.) Where the money or money's worth has
been paid during the existence of a lease made
before the passing of the Act.
The compensation under this section is liable to
deduction for arrears of rent, and for taxes due by
the tenant and not recoverable from the landlord,
and for sums due for deterioration of the holding
arising from non-observance on the part of the
tenant of any express or implied covenant or
agreement, provided these deductions have not
been made under section 4.
IV. Compensation in respect of away-going crops Coupewsa-
under section 8. Under a custom or usage, which section s.
extends to away-going crops, the custom or usage
shall regulate the dealing with them.
Time to
serve Notice
of Claim.
20 Introductory Analysis.
Where there is no custom or usage, or where
there is, and no claim made under it, the landlord
may allow the tenant to carry off the away-going
crops, or, at his option, pay him the value of them.
Such is the nature of the compensation given to
out-going tenants. It remains to consider
The Proceedings to obtain Compensation.
toowauT 88 Every tenant who may claim to be entitled to
tJoiu Pensa compensation under the Act may serve notice of
his claim (if any)
(a). As soon as he shall have been served by
his landlord with Notice to Quit, or with an eject-
ment, or disturbed by any act of the landlord
within the meaning of the Act ;
(b). In case of a tenancy for an uncertain term,
as soon as the term shall have expired ;
(c). In case of a tenancy for a term certain,
when the term shall be within six months of its
expiration ;
(d). In case of a tenant who shall give Notice
of Surrender, with such notice or after its service ;
(e). In every case the Notice of Claim (if any)
shall be served before the tenant quits or is
deprived of possession by his landlord, or at latest
within one calendar month thereafter, but Notice
of Claim may be served up to the 1st day of
January, 1871, though the time limited by the
rules for service thereof might otherwise have
expired. The claim is to be according to the forms
fixed by the rules made under the Act, or as near
thereto as circumstances will admit.
Disputed If tne landlord disputes the claim in whole or
Introductory Analysis 21
in part, which he can do within 21 days after
service of the claim upon him, the question is to
be determined by the Civil Bill Court at the Land
Sessions of the division in which the lands lie, or,
if the parties agree thereto, by arbitration.
On the hearing of disputes, either party may a e u , qttltie8
make any claim, urge any objection to the claim
of the other, or plead any set-off, and the Court
taking into account any default or unreasonable
conduct of either party, shall give judgment on the
case with regard to all its circumstances (s. 18),
such judgment to be reduced to writing in the
form of a decree or award, setting out the particu-
lars allowed (s. 19).
Where the disturbance of one tenant involves j ^*^y
the interests of other persons standing in the rela-
tion of landlord and tenant, the Court shall con-
sider the whole amount payable, and distribute it
according to the rights of the several persons
interested ; but this provision will not apply, as it
is not required, in the case of holdings under a
custom or usage (s. 20).
A tenant who may be decided by the Court to 0*^"^
be entitled to compensation is secured against ^tion^aw."
eviction until his compensation has been paid or
deposited. The landlord will in all cases have
the option of depositing the amount in a Branch
Bank of the Bank of Ireland, or where no such
branch exists, in such other Bank or Branch as the
Chairman may direct, in the manner prescribed by
Rules 35-37; and when he does so, the tenant
will not be entitled to receive the money de-
posited until he gives up possession ; and if in the
22 Introductory Analysis.
meantime he has done any damage to the holding
or buildings, the Court will allow the landlord com-
pensation therefor out of the money deposited (s. 21).
The Court of Arbitration.
Arbitration. If both parties agree on arbitration, they may
at any time before the first day of the Land
Session refer the dispute to a single arbitrator, or
each may appoint an arbitrator; and the arbitra-
tors, before they enter on the case, shall appoint
by writing under their hands an umpire to decide
on any matters on which they may differ. A form
(No. 11) is given in the Rules of submission to
arbitration.
The award of the arbitrators is without appeal ;
and is not to be invalid for violating or not observ-
ing any technical rule of law respecting awards.
Either party, on notice served on the opposite
party ten days before the first day of the Land
Session next ensuing the making of the award,
may apply to the Chairman to record the award ;
and the Chairman, on hearing the application, and
being satisfied that the award substantially decides
the dispute, may order the award to be recorded by
the Clerk of the Peace, and when so recorded it
may be enforced like any other order of the Court.
The Civil Bill Court.
civil Bill If the case is not referred to arbitration it comes
Court.
before the Civil Bill Court; but the Chairman,
with the consent of both parties, may hear it in
chamber ; otherwise it will be heard in Court like
an ordinary Civil Bill.
Introductory Analysis. 23
An appeal is given, where the order is made
in the county or the county of the city of Dublin,
to two judges of the superior courts selected for
the purpose : where the order is made elsewhere,
to the assizes.
The appeal is, in fact, a rehearing. The judges
may reserve any question arising on such appeal
for the consideration of the Court for Land Cases
Reserved, a court composed of the twelve judges
who go circuit, the Lord Chancellor, the Master
of the Rolls, the Lord Justice of Appeal, and the
Vice-Chancellor.
C. Extension of the Leasing Powers of
Limited Owners.
Landlords, being limited owners as defined in Jf^^n
Powers.
sec. 26, including bodies corporate and commis-
sioners and trustees for public purposes, entitled
to estates in fee, or in the case of leasehold lands,
to an unexpired residue of 31 years, are em-
powered to grant agricultural leases for thirty-five
years, instead of twenty-one years, the previous
limit of such leases. The rent reserved by such
leases is to be a fair rent, without taking into
account against the tenant the value of improve-
ments executed by him or his predecessors in title
(s. 28).
The Civil Bill Court, on the application ofc fl a -
either party, after the form E or F (R. P. I.), Uaaei -
lodged with the Clerk of the Peace two months
before the Land Session, may confirm with or
without modifications any lease granted or pro-
posed to be granted under the Act, and such
24 Introductory Analysis
confirmation shall be conclusive evidence that the
lease is within the powers of the Act.
The lease shall be valid against the grantor and
all persons entitled to any estate or interest subse-
quent to his. But no lease granted by an owner,
himself holding under a lease, shall continue after
the expiration of the term of his own lease (s. 29).
These leasing powers are in addition to all exist-
ing leasing powers (s. 30).
Peasant Pro- D. SALE TO TENANTS OF THEIR HOLDINGS TO
prietorship.
promote Feasant Proprietorship.
sale to Whenever a tenant can agree with his landlord,
Tenant on o '
agreement, whether or not the estate is encumbered, for the
sale to him of his holding, on the application to
the Landed Estates' Court of both or of either,
and on the deposit in the Bank by way of security
for costs of such sum as the Court may require,
the Court is authorized, if satisfied after inquiry as
to the sufficiency of the price and the capacity of
the landlord to sell, to carry the sale into effect,
and execute the necessary conveyance (ss. 32, 34).
If there are any sub-tenants they must consent in
writing to the sale. The application may com-
prise the holdings of two or more tenants (R. 2, 4,
P. II.)
This conveyance will confer a Parliamentary
title to the holding free from incumbrances (s. 35),
and subject only to quit rents and rent-charges in
lieu of tithes, rights of way and other easements,
manorial rights and drainage charges (s. 36).
what Land- The landlord who can sell under these provisions
lords can sell
must, in the case of freehold land, be an owner in
Introductory Analysis. 25
fee, or a person capable of appointing or disposing
of the fee, or hold for his own life under settlement
land in which the estate under the settlement is in
fee; and in the case of leasehold land must be
owner of the whole interest in or have an estate
for his own life under settlement in a lease renew-
able for ever, or for years of which not less than
sixty are unexpired at the time of the sale. Any
body corporate, trustees, or commissioners for
public purposes may sell lands in which they have
estates in fee or for years as just mentioned.
No sale is to be made of a leasehold under a
lease containing a prohibition against alienation,
unless such prohibition has determined or is
waived (s. 33).
The Court will distribute the purchase-money Distribution
. l J of Purchase-
aCCOrdillg to the rights and priorities of the persons money.
interested or having charges on the holding sold ;
and where money is not immediately distributable,
may lodge it in Court or invest it (s. 37).
The costs of the sale, including a percentage fee costs.
on the price to be prescribed by the Treasury (s.
38), the costs of the statement, of making out
landlord's title, and of subsequent proceedings, are
to be borne by the vendor; and the costs of
making out the tenant's title, and of the con-
veyance, by the purchaser, unless otherwise pro-
vided for by the agreement (R. ii., P. II.).
The purchase-money is to be distributed to claim-
ants at the cost of the Treasury, except in the case
of expense caused by disputed titles, or failure to
comply with the rules for distribution of purchase-
money (sec. 39, and R. 12, P. II.).
26
Introductory Analysis.
Advances of J}
Money by
Board of
Works.
. Advances of Money by the Board
of Works to facilitate Payment of
Compensation, and to promote Peasant
Proprietorship and the Cultivation of
Waste Lands.
Advances
for Compen-
sation.
Advances
for Waste
Lands.
Advances
for Peasant
Proprietor-
ship.
Advances for Compensation. Landlords may
borrow money from the Board of Public Works
to pay the whole or part of the compensation due
to a tenant quitting his holding, but who has not
been disturbed by his landlord, on the terms of
paying off the loan in thirty -five annual instalments,
with interest, at 3^ per cent., the instalment and
interest making together 5 for every 100 paid
in advance (s. 42).
Landlords, being limited owners, may agree with
tenants as to the compensation payable under this
Act, and on payment of the sum agreed on to the
tenant, may apply to the Civil Bill Court for an
order charging the holding with an annuity for
thirty-five years of 5 for every 100 so paid to
the tenant. This annuity will, if the landlord dies,
have to be paid to his personal representatives by
his successor in the estate (s. 27).
Advances for Waste Lands. On the same terms
the Board will advance, upon such security as they
approve, such sums as they think fit to landlords
to reclaim waste land; and upon the joint security
of vendor and purchaser a moiety of the purchase-
money contracted to be paid for any waste land
(s. 43).
Advances for Peasant Proprietorship. On the
Introductory Analysis. 27
same terms the Board will advance to any tenant
purchasing his holding, in pursuance of the pre-
vious sections, any sum not exceeding two-thirds
of the price of such holding. That is, by a pay-
ment for 35 years of 5 for every 100 advanced,
the tenant-purchaser will have discharged both
principal and interest (s. 44.) Where the rent
is so high that the holding will, only sell for
twenty years' purchase, the tenant will if he buys
under the Act, have to pay an annuity equal to
the rent for 35 years, and then have it rent-free
for ever.
A tenant-purchaser who borrows under this
section must not alienate, assign, sub-divide, or
sub-let his holding, without the consent of the
Board, during such time as any part of the instal-
ments are unpaid, under penalty of forfeiture of
his interests.
In like manner, the Board may advance two- j[^ f g in
thirds of the purchase-money to any tenant wishing E^tes-
to purchase his holding in the Landed Estates' Coun -
Court (s. 45).
The Landed Estates' Court is required, so far
as is consistent with the interests of the persons
interested in the estates, or the purchase-money
thereof, by the formation of lots for sale or other-
wise, to afford all reasonable facilities to occupying
tenants desirous of purchasing their holdings under
the provisions of the Act, and for that purpose to
hear any application in that behalf made by the
Board or any such occupying tenant (s. 46).
Where the landlord of an estate is willing to ^{| r e f e 8tate
contract for the sale, under the Act, of his estate
28 Introductory Analysis.
in its entirety, but not in part, and the tenants of
the holdings comprising four-fifths in value are
willing to purchase their holdings, and other pur-
chasers can be found to buy the remaining fifth,
and able to pay half the purchase-money, the
Board may advance to them the other half of the
purchase-money on the same terms as to the occu-
pying tenants purchasing (s. 47).
o/Innuity 11 ^e owner f l anQ4 charged with an annuity in
favour of the Board may redeem the annuity, or
any part remaining unexpired, by payment to the
Board of a sum equivalent to the then value of
the annuity. This value is to be calculated accord-
ing to a table annexed to the Act (s. 52).
F. Restrictions on Notices to Quit and
SHORT OR PRECARIOUS TENURES.
Notices to Notices to quit must be on a half-crown stamp
(s.57.).
In the case of a tenant from year to year, they
shall not take effect until after the expiration of a
period not less than six calendar months from the
date of the service of the notice, such period, in the
absence of agreement to the contrary, to terminate
on the last gale day of the calendar year. Persons
serving notices to quit, not in conformity with
these provisions, are subject to a penalty of forty
shillings (s. 58).
short Tenancies at will, or less than tenancies from
Tenures. '
year to year, created by landlords after the passing
of this Act, are to be treated, as to notice to
Introductory Analysis. 29
quit and compensation, in all respects as if they
were tenancies from year to year. The practical
effect will be to abolish all such short or precarious
tenures. But it is otherwise where the letting has
been bona fide for the temporary convenience or
to meet a temporary necessity either of landlord
or tenant (s. 69). Except in this case, precarious
or short tenures are made impossible.
G. Relief of Tenants in Respect of Geand
Jury Cess, and Rent of Land covered by
Public Roads.
The relief from Grand Jury Cess is onlv to Grand Jury
Cess
be granted in the case of tenancies created after
the passing of the Act. Where the value of the
premises does not exceed 4, the cess shall be paid
by the immediate lessor; where the value exceeds
4, one half the cess may be deducted by the
tenant from the rent ; and if the person so receiv-
ing the rent also pays a rent in respect of the
same holding, he shall, if such rent is received
and paid under contracts entered into after the
passing of the Act, be entitled to deduct from
the rent so paid by him a proportionate part of
the cess deducted from the rent received by him
(s. 65, 66).
These provisions do not apply to cess levied
under presentments for malicious injury, or under
the Peace Preservation Acts (s. 67).
" Any person who, after the passing of the Act, iind
shall take at an acreable rent land adjoining or Public
Etoafe
30 Introductory Analysis.
intersected by any public roads, shall not, in the
absence of an agreement to the contrary, be liable
to rent for any portion of such land as may be
contained in the public roads" (s. 68).
NOTES AND COMMENTS,
LEGAL AND PRACTICAL.
( l ) The first part of the Act has a twofold object : 2J*f rf
1. To legalize the Ulster tenant-right custom,
and the usages outside Ulster, " in all essential %
particulars" corresponding with the Ulster
tenant-right custom.
2. To enact for the rest of Ireland a series of
provisions embodying, not completely or exactly,
it is true, but in general idea, all the main
elements of the Ulster custom.*
* " We have taken all the elements of the Ulster custom Elements of
payment by the predecessor, improvements by the tenant custom,
himself, and compensation for dispossession, and translated
them, so to speak, into a statutory form for the rest of the
country." Speech of the Right Hon. C. P. Fortescue, Esq.,
M.P., on the second reading of the Land Bill, 7th March,
1870. Hence, apparently, the phrase "Statutable Tenant- statutaD i e
right," which, during the progress of the Bill, was applied to Tenant-
several abortive schemes of land legislation, none of them at
all resembling the Ulster tenant-right ; and which, since the
Act, Mr. Morris, in his commentary on the Act, has applied
to the compensation for disturbance of the 3rd section. This
is, doubtless, the distinguishing feature of the Ulster custom
as contrasted with the English tenant-right customs; but
it is only one of its elements. On the nature of the Ulster
tenant-right no one has a better right to be heard than
Lord Lurgan, himself a large Ulster proprietor. On the
32
Notes and Comments.
Section I.
A Custom
cannot be
trans-
planted.
The Ulster custom is not made law for the whole of
Ireland. It is impossible to transplant a custom from
second reading of the Bill in the Lords, he said, " the prin-
ciple of compensation for disturbance contained in clause 3
was simply the enactment, within limits, of that principle of
compensation for good-will which had so long formed an
element of the Ulster custom, and the principle of recogniz-
ing the tenant's claim for improvements was another element
of the Ulster custom, under which the tenants' improvements
had always been recognized by the landlord. So also the
machinery of the bill its provisions for arbitration, its equities'
clause, and its local tribunal were all based on this system of
tenant-right." The mistake of confining the term Statutable
Tenant-right to the third clause may have arisen from
the wording of the question put to the Poor Law Inspectors
" Whether the Ulster tenant-right custom is in existence in
your district ; that is to say, whether any payment is made
to the out-going tenant, with or without the consent of his
landlord, for disturbance or good-will, irrespective of com-
pensation for improvements actually made by the tenant
or by preceding tenants ? " The meaning evidently was that
this element formed the distinguishing, not the sole or chief,
element of the Ulster tenant-right ; and Dr. Knox, whose
district, comprising the county of Antrim and part of the
counties of Armagh, Down, Londonderry and Tyrone, he
terms, " the heart of the tenant-right country," reports, in
answer to this query, " It is held to imply not only the value
of the improvements, but the value of mere possession, and
1 do not think that the term Ulster tenant-right is limited,
in popular opinion, merely to the claim for disturbance or
good-will." Mr. R. Hamilton reports : " On Lord Erne's
estate the price is fixed at five years' rent, and the value of
the improvements ; but this restriction seems to be frequently
evaded. On Captain Archdall's estate, I am told it is also
limited to two years' rent, and the value of the improve-
ments." Reports of Poor Law Inspectors on existing Rela-
tions of Landlord and Tenant, pp. 12, 13.
Legal and Practical. 33
a district in which it has grown up, intertwining itself section i.
with the whole framework of society, to other districts
where it is non-existent. But it is possible to take the
constituent elements of a custom, tested by long expe-
rience in one district, and to transmute ihem into a
law for other districts similarly circumstanced ; and
these elements may, in process of time, consolidate
themselves into a custom having within it a principle
of life and growth.
In legalizing the Ulster tenant-right, in its aspect The English
of compensation, the English agricultural customs customs"
supplied a precedent. They recognize, as will be
more fully shown hereafter, the principle of compen-
sation for improvements, just as does the Ulster custom,
but not to the same extent as the latter (the reason
being that the facts are different, as a general rule in
Ireland the tenant, in England the landlord, execut-
ing the permanent improvements).* Compensation
for dispossession is not found in the English cus-
toms, but forms so prominent a feature in the Ulster
custom, that by inattentive writers it has been taken
to be the only element. The reason of the difference
is to be found in the facts of industrial life in the
two countries. A dispossessed tenant in Ireland,
* "The tenant-right of Ulster only differs from the
English usages of tenant-right in the sort of improvements
for which compensation was claimed. As the tenants in
Ireland put up the farm buildings and make fences and
drains, their claim is of course more extensive and of longer
duration than that of English tenants, but does not differ
in the slightest degree in principle." Reports for the Irish
Government on the Landlord and Tenant Question in Ireland,
1859-1866; (Presented to Parliament, 1869), by W.
Neilson Hancock, Esq., LL.D.
D
34
Notes and Comments,
General
object of
sec. 1.
Section i. where there are no manufactures, and a policy of
consolidation of farms is in vogue, is in a different
position from a dispossessed tenant in England who
can find other occupation or another farm. Thus,
so far as compensation for improvements is concerned,
there is nothing in the Ulster tenant-right different
in principle from the English agricultural customs ;
and the main features of the provisions for tenants
outside the districts of customs, are copied from the
Ulster custom, which, as Mr. Gladstone said, "con-
tains two elements, compensation for improvements
and the price of good-will."*
( 2 ) The object of this section is to legalize the Ulster
tenant-right ; to declare that the tenant claiming under
the custom shall not get compensation under the
general provisions of the Act ; to provide for cases
where the tenant-right has been purchased by the
landlord ; and to allow a tenant foregoing his claim
under the custom to claim under the general provisions
of the Act.
Ulster te- The historical origin of the Ulster tenant-right
nant-nght; _
its historical custom is now of little importance, and would be out
origin. t A '
of place here, whether, in the words of Mr. Gladstone,
" it represents the ancient Irish ideas derived from the
authority of tribal possession, whether it represents the
covenants which were inserted by James I. in the
charters granted to the settlers in the country, whether
it represents the happy political relations subsisting for
the most part in Ulster between the landlords and the
occupiers, which have induced the landlords to view
favourably the growth of such a custom, or whether it
represents the payment of insurance for the safety of
the in-coming tenant when he takes possession of the
Speech on the Introduction of the Bill, 15th Feb., 1870.
Legal and Practical, 35
land so prized and valued. Leaving these questions, Sectioni.
we take the Ulster custom as a matter of fact ; we say
that it prevails, that it is admitted, that it is recognized
by the landlords not by each man as his individual
act, but in deference to the authoritative tradition of
the district ; that where it is impaired by the action of
any landlord, or destroyed by the action of another,
that action is against the authoritative tradition of the
district, and that the consent which Ulster generally has
given to the prevalence of this custom on the part of the
landlords, as well as on the part of the tenants, amounts
to a virtual covenant between the parties. Viewing
it as a covenant, we propose to take it as it is, and to
convert it into a law, and allow it to be examined into
as a question of fact by the courts that will be consti-
tuted under this bill. They will have nothing to do
but examine the questions of fact, and give effect to
the custom with the binding authority of law. This
part of the Bill is very simple ; we do not attempt to
modify the custom ; we do not inquire into its varieties ;
it is well known to vary within certain limits ; we do
not attempt to improve it nor to qualify it ; we leave
it to be examined as a matier of fact, and when it is
ascertained as a matter of fact, the judge will have
nothing to do but to enforce it."
These words accurately state the duty of the judges
in reference to this portion of the Act. It is with the
facts, the actual circumstances, not the historical origin
of the custom, those entrusted with the working of the
Act will have to deal. The facts will be brought to
light in the evidence hereafter to be given on the
cases brought before the courts. But these facts were
disclosed in trustworthy evidence which was before
Parliament when legislating on the question the
Export of the Land Occupation Commission, in 1845 ;
36
Notes and Comments,
Section I.
Characteris-
tics of the
Ulster cus-
tom.
Continuous
possession.
Sharman
Crawford's
definition.
the Report of the Poor Law Inspectors as to the
Existing Relations between Landlords and Tenants,
in 1870 ; the Reports of Dr. Hancock on the Landlord
and Tenant Question, 1859-1866, presented to Par-
liament by command, 1869 ; Report of the Committee
of the Commons on the Tenure and Improvement of
Land (Ireland) Act, 1865 ; and the Report of the
Committee of the Lords on the Tenure (Ireland) Act,
1867 and, therefore, in these reports will be found,
not, it is true, authoritative exposition of the meaning
of the Act, but all-important guidance in its inter-
pretation. A sketch of the tenant-right custom,
gathered from the best authorities, and from long and
careful personal observation, can hardly fail to be of
assistance in interpreting not only the first but other
sections of the Act.
The general characteristics of the Ulster tenant-
right were, in 1845, clearly sketched by Dr. Hancock,
from the evidence given before the Devon Commission ;
and as the accuracy of his description is fully borne
out by the recent evidence of the Poor Law Inspectors,*
it is here subjoined :
" The rights of the tenant, which are recognized by
the custom, are
" 1st. The right of the tenant to continue in posses-
sion of the farm, until, for non-payment of rent, or
for some other reason, the landlord has a good and
sufficient cause to eject him.f
* See Dr. Knox's Report, as to North-East, p. 142; and
Mr. R. Hamilton as to North-West, p. 1 2 of the Poor Law
Inspectors' Reports on Existing Relations, 1870.
f See Dr. Knox's Report, ibid., p. 139. In Sharman
Crawford's Bill, tenant-right was defined as " the right or
privilege enjoyed by the tenant in possession of continuing
in occupation, subject to the payment of the rent to which
Legal and Practical. 37
" 2nd. The right of the out-going tenant to receive section i.
a sura of money from the in-coming tenant on a change Payment by
. in-coraing
of tenancy. tenant
" 3rd. The right of the tenant (subject to the appro- Jus du P t i attempting
supposing that the landlord can really fix a limit to the to regulate
price of tenant-right. Legislative attempts to limit
prices, although frequent in times when political eco-
nomy was less understood, have for some years been
abandoned, as quite powerless to effect the object
contemplated. Although a landlord may fix the price
per acre, and may obtain an apparent adherence to
his rule, yet evasion is so easy that it is idle to speak
of the limitation* being successful." f
Some other features remain to be noticed :
1. As a general rule it applies equally to lease- Tenant-right
hold and yearly tenancies. J h lda -
* " Some landlords have attempted to fix a precise price
per acre, but as this price is generally below the market
value it is evaded, the in-coming tenant paying an additional
sum secretly." Evidence of J. Hancock, Esq., Devon Com-
mission, Vol. i., p. 483. " On some estates attempts are made
by the proprietors to regulate or restrict its price, but all
such limitations are nugatory, and invariably prove ineffec-
tual to prevent the in-coming tenant from making a secret
settlement with the out-goer." Report of Mr. R. Hamilton;
Poor Law Inspectors' Reports, p. 12. "It is, I believe,
certain, that in the numerous instances in which landlords
find it expedient to impose a definite limit to the compen-
sation to be paid to the out-going tenant, this is constantly
evaded by a secret understanding between the contracting
parties." Mr. O'Brien's Report, ibid., p. 101.
f The Tenant-right of Ulster considered Economically. By
W. N. Hancock, Esq., Barrister-at-law.
% Thus, Dr. Knox, writing of his district, " the heart of the
tenant-right country," says " The tenant-right is general,
extending both to tenants-at-will and leaseholders. The
40 Notes and Comments,
Section j. This is also one of the features of the English
tenant-right, which exists in the absence of any specific
agreement between the parties, or any express words
which would exclude the custom where an agreement
does exist.*
purchaser considers that he is buying more than the re-
mainder interest in the lease, viz. a claim for continued
occupancy after it has expired." Poor Law Inspectors'
Reports on the Existing Relations, &c, p. 142. Mr. O'Brien
says, " Where the custom prevails, it is, as a general rule,
allowed to apply equally to leaseholders and tenants-at-
will." lb., p. 102. And Mr. R. Hamilton, of the North-
Western district, says, "the custom is not confined to
tenants holding at will, but in many eases extends to lease-
holders who expect to be paid for their good-will on sur-
rendering their holdings at the termination of the leases."
lb., p. 12. See also The Ulster Tenant-right, by James
M'Knight, Esq., LL.D., p. 45, and the evidence before the
Land Occupation Commissioners of J. B. Beresford, Esq.
(Co. Londonderry) ; J. V. Stewart, Esq. (Co. Donegal) ;
John Andrews, Esq., and Captain Hill, agent to Lord Roden
(Co. Down) ; E. Tickell, Esq., Assistant Barrister ; and others
passim. Leases in Ulster were rarely based on commercial
dealings with the land, but were given as qualification for
the franchise, or as a legal security on which the tenant
could raise loans. They were securities, not substitutes, for
the tenant-right. In the case of a lease tenant-right is
necessary for the protection of the landlord even more than
the tenant, to prevent exhaustion of the land during the last
years of the lease. See evidence of John Hancock, Esq.,
Land Occupation Commission. " Through the intervention
of the tenant-right, although the lease may have expired, the
tenant has still a large interest in his farm, and therefore, if
he racks out his farm during the last years of the lease, he
injures himself and not his landlord."
* Woodfall, Landlord and Tenant, p. 490; Wingrove
Cooke, Agricult. Ten., p. 125; Wiglesworth v. Dallison, I
Legal and Practical. 41
There is an important difference to be kept in mind, section i.
In Ulster the rule as to leaseholds is part of the custom ;
in England, the rule just laid down is a rule of law.
Hence in Ulster, the question whether a lease excludes
the custom is not to be determined by comparing its
language with the decisions of English cases ; but by
evidence as to whether it is customary to treat such a
lease as excluding the tenant-right.
2. There is no difference, as regards tenant-right, Resumption
by landlord.
between resumption by the landlord of a tenant's hold-
ing and transfer from tenant to tenant.* The land-
lord in the former case pays the tenant the full value
of his tenant-right.
3. Ejectment for non-payment of rent, or for breach Forfeiture.
of covenant, does not forfeit any portion of the tenant-
right. An insolvent tenant is permitted to sell, and the
arrears of rent are a first charge on the purchase money.
Doug., 201 ; Senior v. Armilage, Holt, 197; Muttony. Warren,
T. &G, 646; 1 M. & W., 466; 2 Gale, 71 ; Wilkins v.
Wood, 12 Jur. 583; 17 L.J., B., 319; Smith's Leading
Cases, cases cited under Wiglesworth v. Dallison, Vol. i.,
p. 539, and post, p. 60. Evidence of the usage is admitted
not only to explain the terms of the written contract, but
to annex incidents to it.
* "I purchased about 150 acres last year, from tenants, to
enlarge Lord Caledon's demesne, and paid them \2 per
acre for lands at will." Evidence of H. L. Prentice, Esq.,
agent to Lord Caledon, Land Occupation Rep., Vol. i.,
p. 841. See also evidence of John Hancock, Esq., J.P ,
u A landlord cannot resume possession to himself without
paying for it," ibid., p. 484 ; of Sir R. Griffith, " It is
usual for the landlord to pay the full amount of what the
tenant could obtain from others for the tenant-right," ibid.,
p. 29 ; of Joseph Kincaid, Esq., ibid., p. 33 ; and Reports of
Poor Law Inspectors, p. 1 06.
42
Notes and Comments,
Abatement
of rent.
Section!. In this way the landlord is secured against losses
through arrears of rent.*
The Act preserves to the general body of tenantry,
in the same cases, compensation for improvements, but
not for disturbance.
4. As the landlord is entitled to receive an increased
rent in the case of increase of value not caused by the
tenant's industry and capital, so, on the other hand,
where a fall has taken place from other causes than the
tenant's neglect, there is generally an abatement of rent.
At the time of the Famine, abatements of rent were
very generally made. The exact amount of these in
the County of Armagh came under the consideration
of the Court of Chancery in 1848, in consequence of
Lord Lurgan's estate being under the Court in a minor
matter. It appears from the records of the Court
that the abatements given by all the leading pro-
prietors of the country varied from 10 to 30 per cent. ;
and in the case before the Court a reduction of 20 per
cent, on all yearly tenancies was recommended by the
Master, and allowed by the Court.t
* " By means of tenant-right, I do not think there is a
loss of 5 by arrears in 20 years." Mr. Blacker, agent to
Lord Gosford. Evidence, Land Occupation Commission,
Vol. i., p. 325. See also evidence of Mr. Russell and Mr.
W. S. Trench, before Lord Clanricarde's Committee, 1867.
f Amongst other arguments to support this reduction
there is a calculation showing that it would be sufficient
to save the tenant-right. It is stated that the price of
tenant-right of lands let at 25s. an acre, was about 12
an acre, and that owing to the depression of the times, the
price of tenant-right had generally fallen to about 4 an
acre; in other words, that the price of tenant-right had
fallen generally 8 an acre. It was then estimated that 3
per cent, would be a fair rate of interest to allow for money
Legal and Practical. 43
5. A middleman has no tenant-right, on the deter- section i.
mination of his lease ; but his sub-tenants are then Middlemen,
entitled to the tenant-right as against the head land-
lord. See notes on section 20.
6. Improvements are presumed to have been made bv Presumption
x as to im-
the tenant; but if shown to have been made by the land- provements.
lord, they do not enter into the value of the tenant-right.
The value of tenant-right is variable.* This has been Value of
ii --iii . i tenant-
largely owing to its non-recognition by the law, which right.
necessarily imported into the bargain the character of
the landlord or his agent. The improvements effected
by the tenant or his predecessors necessarily caused
invested in tenant-right if such investment was treated so
as to keep it secure. Three per cent, in 8 is 4s. 9d., so
that a reduction of 5s. in 1 5s. per annum, or 20 per
cent., was represented as sufficient to save the tenant's
interest.
* Dr. Knox says "It varies in value from 5 to 10,
15, 20, 30, 40, and even the fabulous amount of 60
per acre." Poor Law Inspectors' Reports, p. 1 43. " 25 (per
acre) may be taken as representing the maximum price
usually paid on the large estates where the rents are
moderate, the character of the landlord good, and no restric-
tions enforced as to the amount of purchase- money, the
average price under such circumstances being probably about
1 5, or 1 8 to 20 ; 5 may be regarded as representing
the limit in the most stringent of the^ cases in which a
definite maximum has been fixed by the landlord." Mr.
O'Brien's Rep., ibid., p. 1U4. "The state of the farm and
buildings at the time of sale has considerable influence in
determining the amount, but locality and the number of com-
petitors have a still greater effect. A lease at the same rent
would bring somewhat more than a tenancy from year to
year, from the greater facility of borrowing money. It
depends also to a considerable extent on improvements made
by the former tenant." Evidence of J. Hancock, Esq.
44
Notes and Comments,
Sectioni. the price to vary. It is generally high in mountain
districts, where the claim for reclamations is very
large, and in the neighbourhood of towns, or on very
small holdings, where the buildings form a large item.
It is highest where on small holdings buildings and
reclamations are the work of the tenant as in the
small mountain farms of Donegal. The good-will
element is also higher in small than in large holdings
under the same landlord. These two elements
improvements and good-will form the basis of the
claim ; and their inherent variableness shows the
unreasonableness of restrictions on the price to a
fixed amount per acre in all cases.
Great as are the advantages of tenant-right to the
tenant, it does not appear to be less advantageous to
the landlord. This is important as bearing on the
reasonableness of the custom. The statement of Mr.
Gladstone, on the introduction of the Bill, repeated by
the Lord Chancellor in the House of Lords, has not
been contradicted, that in tenant-right Ulster, since
Arthur Young's days, the rental more than trebled,
and in the other provinces the rents less than doubled.
Lord Lurgan said "Nothing could work better for
the landlords, the tenants, and all classes concerned.
He had formed that opinion from the experience he
had acquired in his own property, and also from the
adjoining estates, with the mode of managing which
he was thoroughly cognizant." *
Effect on
rent and
general
prosperity,
Speech, House of Lords, 17th June, 1870. See also
Report of Land Occupation Commission : u The district in
which it prevails has thriven and improved in comparison
with other parts of the country." See evidence of John
Andrews, Esq., agent to Lord Londonderry: "It has no
tendency in the world, on Lord Londonderry's estate, to
Legal and Practical. 45
( 3 ) " Usages known as the Ulster Tenant-rigid custom? section I.
The word "usages" is designedly used to get rid of the usafiTand
custom.
affect rent ;" and evidence of John Forsythe, Esq., and
others passim. " The average rent of the tillage lands in
the South is about 15s. the statute acre. In Ulster the
farming is better, and the rents are about 9s. per acre
higher than those paid for land of the same quality in the
South." Land Culture and Land Tenure in Ireland, by P.
Maclagan, M.P., Edin., 1869. See a case of an estate on
which tenant-right is stated by Dr. Knox not to exist, and
where in consequence there are no improvements effected by
the tenantry, in Reports of Poor Law Inspectors on L. $ T.,
p. 1 5. Evidence as to the effect of tenant-right on rent was
given before Lord Clanricarde's Committee, 1867. Mr. W.
Steuart Trench said " The land in the North of Ireland
with which I am acquainted is let higher at this moment,
in proportion to its intrinsic value, notwithstanding the
tenant-right which exists there, than the land in other
counties which I have to deal with." Mr. Russell, agent to
estates in Meath and Donegal, was asked u Are rents
in general lower where tenant-right exists than in other
parts of Ireland where it does not?" He answered "I
should say not. I should say that Meath, where tenant-
right does not exist, is, perhaps, the lowest-rented county
in Ireland that I know of; and it has some of the finest
land." Q. 866, 867. See also evidence of Mr. Filgate, agent
to the Marquis of Downshire, before the same committee.
These statements dispose of the flippant phrase, "tenant-
right is landlord-wrong."
Tenant-right, moreover, has given contentment, and
consequently relief from a large taxation for police to
which the land would otherwise have been liable The
agent of the Marquis of Londonderry stated before the
Devon Commission " You would have a Tipperary in
Down if you attempted to carry out a curtailment of tenant-
right." Dr. Hancock showed that the extra cost of keeping
46 Notes and Comments,
Section i. difficulties in definition and proof which the use of the
word custom might have involved. The plural form
points to the varieties of the custom as they are to be
found in the facts which constitute the relations of
landlord and tenant in Ulster. The usages legalized
must be known as (i.e., have the general characteristics
of) the Ulster custom. Usages differing in essential
particulars are not legalized. The language of the Act
avoids all difficulty as to the legal definition of an
agricultural custom ; but it is important to show that
even if language more doubtful had been used if
the "custom" and not "the usages" had been legalized,
the strict definition of custom could not be applied,
immemorial A custom (in its strict sense) to be legal must have
existed so long "that the memory of man runneth
not to the contrary,"* that is from the reign of King
Richard I. To require that a custom which can be
proved to have commenced since the Plantation of
Ulster in the reign of James I., should be proved to
have been in existence since the time of Ric. I., would
be absurd. The use of the word " custom " even would
English not have necessitated this proof. The English agri-
ufages. m& cultural usages, analogous but less extensive, are of
recent and continuous growth, which is inconsistent
with their immemorial existence. In the pleadings
the word custom is invariably used, but the custom is
not pleaded, nor proved as immemorial. f Even in
the peace in the North Riding of Tipperary, as compared
with Londonderry was, in 1865, no less than 72,067 (or
about lis. per acre on the land under crop) Reports on
Landlord and Tenant Question, 1860-1866, p. 65.
* Blackstone, by St., V. i., p. 61 ; 1 Co. Litt., 110 b.
113 b.
f Bullen and Leake, 2nd ed., p. 127; Chitty's Preced., i.,
Legal and Practical. 47
the case of strict custom, a relaxation of the rule has section i
been let in. A jury has been held justified in pre-
suming its immemorial existence on proof being
adduced that it had existed for a much less period,
e.g., for the period of twenty years, in the absence of
evidence to rebut such presumption. *
The subject matter of agricultural customs naturally Theirsubject
emancipated them from strict constructions. Com-
mencing with claims for away-going crops, which
drew from Lord Mansfield the observation " the
custom is good ; it is just, for he who sows ought to
reap, and it is for the benefit and encouragement of
agriculture," f and extending to claims for manure
and tillages left unexhausted in the land, these agricul-
tural customs have gradually come to include claims
for permanent improvements of the soil. Of all of
them the words of Lord Mansfield might be repeated.
Customs thus plainly just and generally advantageous
could not be treated like customs opposed to common
right.
Another circumstance which led in the same direc- The "custom
of the
tion was that in written agreements between landlord country."
and tenant, one of its terms frequently (it might be
said perhaps, generally) was that the tenant should
cultivate his farm according to " the custom of the
country," and the landlord invoked the aid of the
119, 207, 260. See Hutton v. Warren, 1 M. & W., 466;
Fan, -11 v. Gaskoin, 7 Ex., 273. Dalby v. Hirst, 1 B. and B.,
224 ; 3 Moore, 536. See also Woodfall : " A strict legal
custom from time immemorial need not be proved." Law
of Landlord and Tenant, p. 490.
* Jenkins v. Harvey, I Cr. M. & R. 877 ; Rex v. Jolifte,
2B.& C, 54 ; and see Bryant v. Foot, 36 L. J., Q.B., 65.
t Wiglesworth v. Dallison, 1 Doug., 201.
48
Notes and Comments,
Section i. courts to enforce the custom. This could only be
understood of the course of dealing with land, the
ordinary mode of management of a farm, not in the
days of Richard I., but at the time of the demise.
The phrase thus became familiar as a modern usage, *
Legh v.
Htwitt.
Wiglesworth
t. Dallison.
Dalby v.
Hirst.
* In Legh v. Hewitt, 4 East., 154, Lord Ellenborough
said "The jury has found a verdict for the defendant
under the impression that the words in the declaration
' according to the custom of the country ' required a more
strict and specific proof than I think they demanded. From
the subject-matter of the contract, it is evident that the
word ' custom ' as here used cannot mean a custom in the
strict legal signification of the word. The custom of the
country with reference to good husbandry must be applied
to the approved habits of husbandry in the neighbourhood,
under circumstances of the like nature."
The favour with which these customs were regarded by
the Courts as they gradually extended is very remarkable,
and is well marked in the three following cases :
In the case of Wiglesworth v. Dallison, 1 Doug. 201-243,
affirmed on a writ of error, which was of so early a date as
1 779, the custom pleaded was that every tenant and farmer
of lands within the parish of H., whose term expired on the
1st of May in any year had a right to take his away-going
crop. Lord Mansfield said, " We have thought of this case,
and are all of opinion that the custom is good. It is just
for he who sows ought to reap, and it is for the benefit and
encouragement of agriculture. It is, indeed, against the
general rule of law concerning emblements, which are not
allowed to tenants who know when their term is to cease,
because it is held to be their fault or folly to have sown
when they knew that their interest would expire before they
could reap. But the custom of a particular place may
rectify what otherwise would be imprudence and folly."
In Dalhy v. Hirst, 1 B. & B., 224 ; 3 Moore, 536, decided
in 1819, an usage in the neighbourhood of Bradford, for the
Legal and Practical. 49
and was invoked by the tenants to claim justice and Section i.
common right, as before stated, from the landlord.
landlord to compensate the off-going tenant for the labour
and expense bestowed by him upon tilling, fallowing and
manuring the arable and meadow land, according to the
course of good husbandry, the advantage of which the
tenant could not otherwise reap was pronounced by Dallas,
L.C.J., to afford "the strongest encouragement to good
husbandry of farms; it is beneficial to landlords and tenants
also. Such a practice being a mere usage of the neighbour-
hood is not to be considered as a custom strictly speaking,
and need not be immemorial."
The principle got a further extension in the year 1 851 , when Mousley v.
in Mousley v. Ludlam, 21 L. J. (N.S.), Q. B., 64, Coleridge am "
and Erie, JJ., held that the same principles applied to
compensation by the landlord for drainage of lands that
required draining done by the tenant without the landlord's
consent or knowledge. It was contended for the defendants,
among other things, that the judge ought to have directed
the jury that the alleged custom under which the plaintiff
charged the landlord with the expense of draining could not
be supported in law. Coleridge, J., considered that it was
involved in the alleged custom that the tenant should farm
according to the rules of good husbandry, especially as certain
lands required drainage to make them bear. See also Hutton
v. Warren, T. & G., 646; 1 M. & W., 466,- 2 Gale, 71.
These decisions were but the echo of public opinion. In Committee
1848 a Committee of the House of Commons, of which Mr. turai cus-
Pusey, the distinguished agriculturist, was chairman, was ms '
appointed to inquire into the agricultural customs of
England. That committee unanimously reported that u in
some parts of the country a modern usage sprung up, which
confers a right on the out-going tenant to be reimbursed
certain expenses incurred by him in cultivation, other than
those of ordinary husbandry ; that this modern usage appears
to have grown out of improved and spirited systems of farm-
ing, involving a large outlay of capital, and to have been
50 Notes and Comments,
Section i. No line could be drawn in the face of the decisions
wingrove of the judges and the universal verdict of public
Cooke's .....
classification opinion limiting the growth of these customs.
Wingrove Cooke, who in 1850 published a learned
work on agricultural tenancies, proposed a classifica-
tion, for which however he confesses he found " no
direct authority in the books." " The first class," he
says," " such as the away-going crop custom, controls
and varies an express principle of the general law
which gives to the landowner the land and all that
has become part of the freehold, as soon as the
tenancy is determined. The second, such as the
custom against removing hay or straw, or against
taking more than two or three crops to a fallow, does
not control or vary the express provisions of the
general law ; but only explains those provisions and
ascertains their mode of operation. The first gives to
the tenant a right which the general law would deny
him ; the second only ascertains with exactitude the
obligations which the general law imposes, when it
requires the tenant to cultivate the land according to
promoted by forms of agreement between landlord and
tenant, whereby the former covenanted to give compensation
for such outlay ; which forms have been from time to time
altered and enlarged, and are still extending themselves with
the continued advancement of agriculture ; that these usages
have gradually grown into general acceptance in certain
districts until they have ultimately become recognized there
as the custom of the country ; that this wider system of
compensation to the out-going tenant seems to be highly
beneficial to agriculture, to the landlord, and to the farmer ;
to lead to a great increase in the productiveness of the
soil, and to extended employment of the rural population."
Report, pp. iii.-iv.
Legal and Practical. 51
the rules of good husbandry. The first, therefore, Section i.
must be pleaded as an immemorial unvarying custom ;
the second may be given in evidence without being
pleaded, and amounts to no more than proving the
rules of good husbandry, by proof of the general
practice of the neighbourhood." * The classification
and the law thus laid down have not been accepted,
as may be seen by consulting the late editions of
Dixon's Law of the Farm, and the later cases therein
cited. The classification proceeded on a complete
misapprehension of the nature of the case. The
decisions had gone on the ground of natural justice.
The judges and the Committee of Parliament had-
pronounced these customs beneficial to the community
at large. To pronounce some of these "against
common right and contrary to the common law "
the perfection of reason when they were all in the
interest of the community at large, of landlord and
tenant alike, was opposed to the whole spirit of the
English common law, which in its anxiety to meet
the exigencies of modern society and the demands of
justice, has not hesitated to emancipate itself from the
strict rules of an earlier time, f
The purely local customs of agriculture have gradually
come to be treated like the purely local customs of
merchants "to support which there needs not either
* Agricultural Tenancies, p. 134.
t " It is a true principle that no custom can prevail against
right, reason, and the law of nature. . . . If it be
grounded not upon reason, but error, . . to such a
custom the established maxim of law applies, Malus usus
est abolendus an evil or invalid custom ought to be
abolished." Broom's Maxims, pp. 158, 159; and Litt. 8.
212; 4 Inst. 274.
52
Notes and Comments,
Sectioni. the antiquity, the uniformity, or the notoriety of
cu3tom, which in respect of all these becomes a local
law. The usage may be still in course of growth ; it
may require evidence for its support in each case ; but
in the result it is enough, if it appear so well known
and acquiesced in that it may reasonably be presumed
to have been an ingredient tacitly imported by the
parties into their contract." *
It is important to note the spirit in which the courts
have treated these English agricultural customs. The
legislature has given to the corresponding Irish
customs the stamp of validity. Being equally for the
common benefit, and moreover recognized by statute,
they will be construed in the same spirit. The use of
the unambiguous word " usages " puts the matter
beyond doubt.
On the question what is to be considered sufficient
local area to establish a custom, the earlier English
cases went to show that it must be the custom of a
district, not of an estate. A relaxation in this rule
seems to have been made. " These customs," says
Dixon, "are frequently most conflicting and difficult
to define. In many counties they scarcely exist at all.
In others it is rather the custom of districts ; and in
many the custom merely of certain estates." t *
The latest case reported on the subject is in the
Local area
of custom.
Customs of
estates in
England.
* Per Sir J. Coleridge, Juggomohun v. Ghose, 7 Moore,
Indian cases, p. 263-282; and Broom's Blackstone: "A
local custom may, by being tacitly incorporated with a
contract, be in truth a law to the contracting parties," Vol.
i., p. 76. See also Broom's Commentaries, p. 19; Taylor,
Law of Evidence, 1075.
f Lato of the Farm, 1863, p. 1.
Legal and Practical. 53
year 1857 Wormesley v. Dolby, * the marginal note to Section i.
which is "The usage of a single estate will not be
imported, it not being shown that the tenant was
aware of it." In this case Pollock, C.B., said, " The
law takes cognizance of the divisions of the county
into counties and parishes, which are legal and public
divisions ; but not into properties and estates, which
are purely private in their nature. The estates may
be very large, or very small, and if large are only
accidentally so. It would be impossible to draw any
legal distinction between an estate of 100 acres and
of 100,000 ; and there would be no legal presumption
of certainty arising from the fact of usage, as to terms
of letting on a particular estate. Non-constat that the
party becoming tenant upon it for the first time would
hear of it." .... The evidence of usage was
clearly not admissible it was only as to the practice
of a particular person in letting his farms, a practice
not proved, to have been known to the tenant." The
declaration was for certain allowances according to the
custom of the country made to the out-going tenant.
On the part of the defendant, evidence of a usage on
the F. estate that in all lettings it should be understood
that the tenants should keep one-third of their farms
arable and two-thirds in grass, and pay 5 an acre on
leaving for any excess beyond that proportion of arable
over grass ; and it was evidence of this estate usage
limiting what under the custom of the country the
tenant was entitled to, which was refused at the trial.
It must be borne in mind also that no evidence was
given that the tenant had any knowledge of the estate
* 26 L. J. (N.S.), Ex. 219.
54
Notes and Comments,
Section I.
Usage* of
estates in
Ireland.
usage ; and that on this fact the judge based his
decision.
But more important than any English case is the
fact that the presumption as to certainty is in Ireland
altogether in favour of the usages of estates. Cessante
ratione legis, cessat ipsa lex. The custom, not being
recognized by law, could not be made binding beyond
the estate. The tenant was at the mercy of his land-
lord ; and he could not bind him by the usage of the
district. Hence, too, the process of change that set in of
recent years is the very opposite of what it is in England.
There it has been a process of growth ; here, of decline.
The reason is to be found in the legal recognition of
custom in England ; in Ireland, its non-recognition.
Hereafter, and as the result of the Act, we may
expect to see a process of growth set in, the lower
usages getting merged in the higher ; the customs of
estates growing into customs of districts. But it is
impossible to deny the fact of estate usages existing
in Ireland. The Poor Law Inspectors in their reports
invariably speak of the usages of estates.* There is
* Thus Mr. R. Hamilton reports, " It may be interesting
to state what are the various usages which, so far as I could
learn, are in force on the most important properties in the
county. On Sir V. Brooke's estate the price is settled by
arbitration, the seller and buyer each naming an arbitrator,
and the landlord an umpire, and the value is regulated
according to the condition of the farm and improvements
on it. On Lord Erne's estate it is limited to two and a half
years' rent and the value of improvements made, but this
restriction seems to be frequently evaded On Lord Ennis-
killen's estate it is limited to two and a half years' rent, and
the out-going tenant must surrender his holding to the
landlord."
Legal and Practical. 55
nothing then, we may conclude, to prevent the usage Section i.
of an estate, provided it is voluntary, and sufficiently
certain and reasonable, and proved to be within the
cognizance of the tenant, being recognized. But on the
other hand, where the facts go to show an usage of a
district, the usage legalized is the usage of the district.
There is nothing to warrant what has been termed
an usage of a holding.
Reasonableness i3 an essential condition either of Reasonable-
ness of
strict custom or of usage. " An agricultural custom, custom.
like every other custom, must be reasonable on the
face of it, or it will not be recognized by the Courts,
however ancient or general it may be."* In England
no test of reasonableness is to be found except the
opinion of the judges, which, however, puts in opera-
tion a principle of growth. What is once declared
reasonable remains so ; and corresponding cases fall
afterwards within the same ruling. Thus the custom
gets gradually enlarged. Moreover, as circumstances
change, the law as to what is reasonable changes.
What was unreasonable under the old system of
fallows becomes reasonable in the system of rotation
farming.
In Ireland there are two classes of usages : Stionof
I. Usages of natural growth, corresponding to U88 8 M
the English agricultural customs, the unimpeded
out-come of the circumstances of landlord and
tenant, differing, it is true, in their incidents
in the two countries, but not more than the
* Wingrove Cooke, Agrc. Tenancies, p. 125; Co. Litt.
112ft, 1 1 3a ; Broom, Com. p. 1 9 ; Dalby v. Hirst, 3 Moore,
536 ; 1 B. & B. 224. Mousley v. Ludlam, sup. ; Wiglesworth
v. Dallison, sup., and Bottomley v. Forhes, 5 Bing., N.C., 128.
54
Notes and Comments,
Section I.
Usages of
estates in
Ireland.
usage; and that on this fact the judge based his
decision.
But more important than any English case is the
fact that the presumption as to certainty is in Ireland
altogether in favour of the usages of estates. Cessante
ratione legis, cessat ipsa lex. The custom, not being
recognized by law, could not be made binding beyond
the estate. The tenant was at the mercy of his land-
lord ; and he could not bind him by the usage of the
district. Hence, too, the process of change that set in of
recent years is the very opposite of what it is in England.
There it has been a process of growth ; here, of decline.
The reason is to be found in the legal recognition of
custom in England ; in Ireland, its non-recognition.
Hereafter, and as the result of the Act, we may
expect to see a process of growth set in, the lower
usages getting merged in the higher ; the customs of
estates growing into customs of districts. But it is
impossible to deny the fact of estate usages existing
in Ireland. The Poor Law Inspectors in their reports
invariably speak of the usages of estates.* There is
* Thus Mr. R. Hamilton reports, " It may be interesting
to state what are the various usages which, so far as I could
learn, are in force on the most important properties in the
county. On Sir V. Brooke's estate the price is settled by
arbitration, the seller and buyer each naming an arbitrator,
and the landlord an umpire, and the value is regulated
according to the condition of the farm and improvements
on it. On Lord Erne's estate it is limited to two and a half
years' rent and the value of improvements made, but this
restriction seems to be frequently evaded On Lord Ennis-
killen's estate it is limited to two and a half years' rent, and
the out-going tenant must surrender his holding to the
landlord."
Legal and Practical. 55
nothing then, we may conclude, to prevent the usage Section i.
of an estate, provided it is voluntary, and sufficiently
certain and reasonable, and proved to be within the
cognizance of the tenant, being recognized. But on the
other hand, where the facts go to show an usage of a
district, the usage legalized is the usage of the district.
There is nothing to warrant what has been termed
an usage of a holding.
Reasonableness i3 an essential condition either of Reasonable-
ness of
strict custom or of usage. " An agricultural custom, custom.
like every other custom, must be reasonable on the
face of it, or it will not be recognized by the Courts,
however ancient or general it may be." * In England
no test of reasonableness is to be found except the
opinion of the judges, which, however, puts in opera-
tion a principle of growth. What is once declared
reasonable remains so ; and correspouding cases fall
afterwards within the same ruling. Thus the custom
gets gradually enlarged. Moreover, as circumstances
change, the law as to what is reasonable changes.
What was unreasonable under the old system of
fallows becomes reasonable in the system of rotation
farming.
In Ireland there are two classes of usages : Stionof
I. Usages of natural growth, corresponding to usa s e8
the English agricultural customs, the unimpeded
out-come of the circumstances of landlord and
tenant, differing, it is true, in their incidents
in the two countries, but not more than the
* Wingrove Cooke, Agrc. Tenancies, p. 125; Co. Litt.
112ft, 1 1 3a ; Broom, Com. p. 1 9 ; Dalby v. Hirst, 3 Moore,
536 ; 1 B. & B. 224. Mousley v. Ludlam, sup. ; Wiglesworth
v. Dallison, sup., and Bottomley v. Forbes, 5 Bing., N.C., 128.
58
Notes and Comments,
Section i. they now stand meet this objection, and that all the
phases of the Ulster custom are legalized as for
instance, dealings between tenant and tenant according
to the custom, and dealings of the tenant with his
tenant-right estate, such as the charging of dowers and
portions, stated by the Poor Law Inspectors to be
characteristic of the Ulster tenant-right. If this be
so, the ordinary courts of law and equity in their
ordinary forms of procedure will be bound to recognize
the incidents of the custom. For instance, an action
might be maintained by an out-going against an in-
coming tenant for the value of his tenant-right after
the analogy of the English tenant-right cases. * It
might even be contended that the town tenant-right is
legalized. However this may be, nothing is done for
such phases of tenant-right beyond the declaration of
their legality ; the machinery of the Act, prescribed by
sections 16 and 17, deals only with claims by tenants
of "holdings" for compensation or for rights which are
directed to be made against the landlord. A right,
proved to be an incident of the custom, as the right
of sale, may be claimed against the landlord, and the
order of the court on such claim may be enforced in
the manner directed in sec. 23.
( 5 ) " Holding." The definition of this word in sect.
71 restricts the operation of this and other clauses in
which it occurs to land, agricultural or pastoral, or
Definition
of holding.
* " In ninety-nine cases out of a hundred a new tenant
comes in and takes the tillages for his own profit, and so
becomes a debtor to the out-going tenant." Per Martin, B.,
in Faviell v. Gaskoin, 7 Exchq., 280. On the other hand,
" if there be no in-coming tenant, the landlord is the person
who by the custom of the country is bound to pay the out-
going tenant." Per Parke, B., ibid.
Legal and Practical. 59
partly agricultural and partly pastoral, held by the Section L
same tenant of the same landlord for the same term
and under the same contract of tenancy. See also
sect. 15.
( 6 ) " Proved." Proof of a holding being subject to %
the tenant-right custom will be made by showing
from the evidence of competent persons of the neigh-
bourhood speaking as to facts, not mere matter of
opinion, * that an usage having the characteristics of
the Ulster custom exists on the estate or in the district
in which the holding is situated, as the result of natural
growth, and that there was nothing in the contract of
tenancy inconsistent therewith. Proof of its existence
for a reasonable length of time will be required. If
the usage is proved to be general, proof of exceptions
would be immaterial, f A restriction, arbitrarily im-
posed, will be disproved by showing it was unreasonable,
not acquiesced in by the people it is presumed to bind,
or not general. The custom will be proved by showing
that tenants in the district or on the estate paid the
amount of the compensation under the custom to former
tenants ; j that dealings of the landlord, as valuations
for rent or on resumption recognized the custom ; or
that other incidents of the custom, exhibited in dealings
between tenants, were recognized by the landlord.
In the case of leases, the English decisions are to in the case
,. . of leases,
the effect that the custom applies to all tenancies how-
ever created, whether orally or by writing, or even by
deed, unless expressly or impliedly excluded by the
* See Roe d. Henderson v. Charnock, Peake, 4 ; Lewis v.
Marshall, 8 Scott, N. R., 493, 7 M . & Gr., 744; Russ.
Steam Nav. Co. v. Silva, 13 C. B., N. S., 610.
f Vallance v. Dewar, 1 Camp., 508.
% Senior v. Armitage, Holt, 198.
60 Notes and Comments,
Section i. terms actually agreed on ; * that if the lease or agree-
ment contains terms or stipulations which are incon-
sistent with the custom of the country, the custom will
be thereby excluded on the principle expressum facit
cessare taciturn ;f but that if the custom and the stipu-
lations of the lease or agreement are not wholly incon-
sistent with each other, J or if the repugnancy is not
such that the incidents of the custom " if expressed in
the written contract would make it insensible or incon-
sistent,'^ both of them may sometimes prevail; and it
has been held that the custom of the country applies
even though the witnesses who prove the existence of
the custom cannot undertake to say whether it applies
* See cases cited, ante, p. 40, n. ; and Taylor on Evidence,
1076.
f Webb v. Plummer, 2 B. & A., 746 ; Roberts v. Barker,
1 Cr. & M., 808; Clark v. Roy stone, 13 M. & W., 752; and
Hutton v. Warren, cit. ante, in which the first two of these
cases were reviewed.
% Holding v. Pigott, 5 M. & P., 427 ; 7 Bing., 465 ; in
which it was held that if the lease contains no express
stipulations as to the mode of quitting, the tenant is entitled
to his away-going crop, according to the custom of the
country, even though the terms of the holding may be
inconsistent with such a custom ; Muncey v. Dennis, 1
H. & N., 216; Faviell v. Gaskoin, 7 Ex., 273; Sutton v.
Temple, 12 M. & W., 52; White v. Nichohon, 4 M. & G.,
95; 4 Scott, N. K, 707; Martyn v. Clue, 18 Q. B., 661,
682 ; Dixon's Law of the Farm, pp. 243-251 ; and Smith's
Leading Cases, Vol. i., p. 549.
Per Lord Campbell, Dale v. Humfrey, 7 E. & B., 274 ;
and see per Coleridge, J., "In these cases a restriction is
established on the soundest principle that the evidence
received must not be of a particular which is repugnant to
or inconsistent with the written contract. Merely that it
Legal and Practical. 61
when the lease is in writing. * If the usage exists, Section i.
and it is not inconsistent with the written contract, it
is precisely the same as if it were written in words
attached to the contract, and it cannot be got rid of by
proof of an oral agreement to waive or vary it.f Evi-
dence of former transactions between the same parties
is receivable for the purpose of explaining the meaning
of terms used in their written contract. J But it is
conceived that under the present Act which legalizes
the custom, if it is proved to be part of the custom
to import it into leases, even where it is impliedly
excluded, it becomes a question of fact, and not, as
in England, a question of law for the court. It will
probably be found that, as a general rule, the only
agricultural leases exclusive of the custom will be those
in which the custom is expressly excluded. ||
varies the apparent contract is not enough to exclude the
evidence, for it is impossible to add any material incident to
the written terms of a contract without altering its effect
more or less. Brown v. Byrne, 3 E. & B., 715; and
Lucas v. Brwtow, 2 B. & E., 907, 913.
* Wilkins v. Wood, 12 Jur., 583, 17 L. J. (Q. B.), 319.
f Fawkes v. Lamb, 31 L. J., Q. B., 98; Burgess v. Wick-
nam, 3 B. & S., 669; 33 L. J., Q. B., 17; Claphamv.
Langton, 5 B. & S., 729 ; 34 L. J., Q. B., 46.
t Bourne v. Gatliff, 1 1 CI. and Fin., 45.
Parker v. Ibbetson, 4 C. B. N. S., 846.
|| This was the ruling in Senior v. Armitage, as reported
by Holt, 198; but Parke, B., stated in Hutton v. Warren
that this was put too strongly by Mr. Holt. In the first
case reported of an agricultural custom, Trumper v. Card-
wardine, cited in Wiglesworth v. Dallison, it was held that
the custom could not legally extend to lessees by deed : but
this was afterwards over-ruled in the cases cited, ante, p. 40.
62 Notes and Comments,
Section i. Proof of the custom will frequently be found in the
From wins, general dealings of the tenants with their holdings in
settlements, " .
&c. the way of dowers, portions, and other family settle-
ments,* involving payments which show a tenant-
right or interest of the sort claimed, and which were
recognized by the landlord or carried out under the
directions of "the office." "Where this has been the
general course of dealing on the estate or in the
district, and shows an unrestricted tenant-right, re-
strictions imposed as to amount in a few cases of
tenants selling their tenant-right do not disprove the
existence of the larger custom, but are to be held
cases of special contract, outside the custom. If no
general custom exists, restrictions which have been
enforced, if arbitrarily imposed, and not acquiesced
in, Avill not constitute an usage. Acquiescence will be
negatived by proof of secret dealing between the
tenants which ignores the regulations of the landlord.
It is to be remarked that though by section 16 the
claim is to be made against the landlord, it is in respect
* See Reports of Poor Latv Inspectors, pp. 1 5, 1 08, 1 43.
Dr. P. Knox says "Many landlords sanction and give
effect to the wills thus made, for of course they could not be
carried into effect without their assent. The person thus
getting the succession is thereby often seriously embarrassed,
but the arrangement is usually well carried out," p. 143.
Mr. O'Brien says "In some instances I learn landlords not
only countenance this arrangement [of sub-dividing and
charging the occupants with portions], but even interpose to
see that effect is given by the inheritor to the disposition so
made by his predecessor in the holding ; in other cases they
strongly oppose themselves to it; but the ordinary rule I
take to be that they fully recognize the evils of, and objec-
tions to, the system, but being powerless to avert them, they
simply regard it with passive dislike," p. 109.
Legal and Practical. 63
of a custom generally arising between tenant and Sectioni.
tenant, which the Act has legalized. In many cases
the market price will, though a regulation price exists,
probably be found in many cases to have been
acquiesced in by the landlord, expressly or impliedly,
as by recognizing charges involving claims larger than
the regulation price would warrant.* The landlord,
disputing a claim, may show the non-existence of the
usage, its unreasonableness, or that it formed no part
of the agreement. He may prove its non-existence by
the like evidence as the claimant may use, and for that
purpose may show other previous transactions in like
cases between the same parties wherein the supposed
usage or custom was not acted on.f
( 7 ) " Svbject thereto." That is, subject to the usaere usages of
n ; i ,. . , i , . , ,l holdings.
of the district or estate, within which the holding is
comprised, and according to which it is presumably
governed. There is nothing here to warrant what has
been termed " usages of holdings."
( 8 ) "Provided" i.e., by sec. 16. A claim will arise When claim
when a tenant is quitting, whether voluntarily or dis-
turbed by act of the landlord. In the former case it
must be accompanied or preceded by notice of surrender.
(9) " Landlord" Defined in sec. 70.
(\o\ "Purchased." By this paragraph a tenant Purchase
V ' 5 T . , . oftenant-
whose tenant-right has been purchased or acquired by right.
the landlord, will not be able to claim under this
section, but he may claim under the general provisions
of the Act. He will be in exactly the same position
* It is a question whether attempts to regulate prices which
have been abandoned by the legislature as impolitic, and in
practice are futile, can form a reasonable incident of a
custom.
t Bourne v. Gatcliffe, 3 M. & G., 643.
64
Notes and Comments,
Section I.
Acquisition
of tenant-
right.
Purchase of
elements of
custom.
Extinguish-
ment of
custom.
as a tenant outside the region of customs, the only
difference being that under section 18, the moneys
paid on account of the purchase of the tenant-right
will form a set-off against his claim.
( u ) "Acquired." This term was inserted by the
House of Lords. "Purchased or acquired" is a
pleonasm. To purchase is to acquire for valuable
consideration. There may possibly be cases where
the tenant-right has been acquired without valuable
consideration, as by gift; but it would require clear
evidence to show that a tenant really parted with
the tenant-right without valuable consideration, while
remaining in occupation of his holding. It might be
supposed to refer to cases where the tenant being in
arrears surrendered his holding without obtaining any
money payment on quitting ; but such a tenant could
not claim under the Act ; and this fact would not
preclude his successor in a tenant-right district from
establishing a custom to which the holding might be
subject.
( 12 ) " The Ulster Tenant-right custom" The purchase
or acquisition of one or several particulars of claim
under the custom will not be a purchase or acquisition
of the custom. There must be purchase or acquisition
of the custom, or of its constituent elements. For
instance, purchase of the tenant's claim to improve-
ments would not be purchase of the tenant-right, for
this is but one of the elements of tenant-right.
( 13 ) " Such holding shall thenceforth cease to be subject."
That is, the holding of the tenant whose tenant-right
has been purchased, not the farm in the hands of a
succeeding tenant not deriving title from the former,
shall not be subject to a claim under the custom. To
hold otherwise would cause great inconvenience. As
there is no register of such purchases provided, a tenant
Legal and Practical. 65
getting such a holding from a landlord in a tenant-right Section I.
district would not know that the tenant-right had
been extinguished, and thus injustice be wrought. If
it is held to mean the farm, only by special agreement
between landlord and tenant, could the tenant-right
ever again attach.
( u ) " Subject to such custom." An Ulster tenant of t^ option.
a holding subject to custom may, foregoing his claim
under the custom, claim under the general provi-
sions of the Act which apply to the tenantry beyond
the region of customs, except under section 7. As
a tenant whose right has been purchased or acquired
is not a tenant of a holding subject to the custom, he
will not exercise the option. He falls under the
general provisions of the Act, including section 7.
This favour to tenants whose tenant-right has been
purchased or acquired is not encouraging to purchasers
of tenant-right.
[By section 18, the purchase-money of the Right
is made a set-off for the landlord.]
(15) u With the consent of the Court." A tenant under The consent
v ' / t of the court.
custom will seldom find it advantageous to exercise the
option, as under the custom he is entitled to compensa-
tion for good-will (and this whether disturbed or quitting
voluntarily, and apart from the restrictions imposed
upon non-customary tenants as to sub-letting, assign-
ment, &c, in sec. 3, sub-sec. 2 ; sees. 9, 10, 13, 14,
15, 18), for improvements (without the restrictions on
claims therefor by non-customary tenants in sec. 4, or
on proof thereof in sec. 5, sub-sees. 1, 2, 3, 4), and for
in-coming payments. Moreover, all customary tenants,
no matter what the size of their farms, are placed on
the same footing ; those holding by lease are generally
subject to the custom ; and the claim of existing yearly
tenants is not affected by the fact of disturbance by a
F
66
Notes and Comments,
Seraon i superior landlord all matters in which the non-cus-
tomary tenant is placed at a disadvantage as compared
with a tenant under the Ulster custom.
The words " except the section relating to compen-
sation in respect of payment to in-coming tenant," were
inserted in the Lords. Before the insertion of these
words, a tenant exercising the option might have
claimed compensation for improvements under section
4, compensation for disturbance under section 3, or if
not claiming under sec. 3, compensation for payments
to in-coming tenant (so far as not included in compen-
sation under section 4). But as in Ulster the payment
by an in-coming tenant generally includes compensation
under sections 3 and 4, it might have happened that
a tenant might have made a claim under sections
which would have involved payment twice over. To
guard against this, the words, " with the consent of
the Court," were added, so that he might have claimed
under whichever of these sections would have seemed
to the Court best calculated to meet the justice of the
case. These words were retained after the exception,
which was proposed by Lord Cairns, was admitted. It
seems hardly possible that, as the section now stands, in
any case the consent of the Court will be refused where
it is to the tenant's benefit to claim the option. This
consent will be given where it is reasonable ; and it
would be unreasonable to refuse to a tenant in Ulster
the benefit of sections 3 and 4, which the legislature,
by enacting them generally for Ireland, has pronounced
reasonable, and which are constant elements in the
Ulster custom. A form of notice of claims (Form
III., R. Part I.) is given. It would appear that a
When given, preliminary consent of the Court is not necessary
before serving such a claim. The consent will, in this
case, be given at the hearing of the claim. There is
In what
cases given
Legal and Practical,
67
nothing even in the Act or Orders to prevent the Court Section i.
giving such consent at the hearing of a claim for the
custom or usage. If the tenant has served a claim
with double counts, one under the usage and one under
the option, the consent can only be intelligently given
after hearing the case. To hold otherwise would be to
read the words as if they were, " not having made a
claim," whereas the meaning is " not claiming simul-
taneously " double compensation, just as in the previous
clause of this paragraph a claimant under custom is
declared not entitled to compensation under any other
section. Practically the Court would not allow the
option where the usage under which the tenant claimed
was proved ; but, it is apprehended, it would be other-
wise where the holding was proved to be subject to
another usage less valuable than that claimed, and less
valuable than a claim under the general provisions of
the Act. The justice of the case would be best met Dual claim,
by the tenant serving a dual claim, under the custom
and under the general provisions of the Act a form
not objectionable under the Civil Bill practice, nor
precluded by the Act or Rules, and involving no hard-
ship of proof* on the opposite party or waste of time to
the Court, inasmuch as improvements, in-coming pay-
ments, and loss of occupation are necessary elements of
valuation under the custom. The Court would then give
its consent, where alone it can be given intelligently,
after the evidence on both sides had been closed.
( 16 ) " Not be again subject" Evidently the same as
" cease to be subject," ante, p. 64.
* If any hardship of this sort should occur, it cou
met by the unlimited discretion of the Court as to costs
WVMQ
OAL-
68 Notes and Comments,
section n.
Section if. ^17^ Where an usage is proved to prevail outside the
Scope of province of Ulster, " in all essential particulars corre-
sponding" with the Ulster tenant-right, it is by this
section declared legal, provision being made in case of
its purchase by the landlord ; and an option is given to
a tenant to claim under the custom, or (with the consent
of the Court) to claim under the general provisions
of the Act, foregoing his claim under the custom.
Whether this section will have extensive application is
1 very doubtful. It is clear that an usage similar to the
Ulster tenant-right prevails in some districts. An usage
of selling the good-will extensively prevails in nearly
every county of Ireland ; but whether this is to be
deemed an usage " in all essential particulars" resem-
bling the Ulster custom, may very fairly be doubted.
To determine the application of this section, it is
necessary to understand the Ulster custom. Readers
are, therefore, referred to the observations on the first
section. It will be remarked that under the first
section, a tenant exercising the option is not permitted
to claim under section 7 ; whilst no such exception
has been inserted in this section. *
The Ulster * The following valuable evidence, given so late as 1867,
outside" 8 by witnesses before Lord Clanricarde's Committee on the
Tenure (Ireland) Bill, deserves attention. W. Lane Joynt,
Esq., said "I have practised for several years on Lord
Annaly's estates the tenant-right of Ulster, and whenever
a tenant wished to go away, and sell his interest in his farm,
I have always permitted him to do so ; and it enabled me to
get rid of two or three people whom I thought it an advan-
tage to lose." W. Steuart Trench, Esq., agent to estates in
Ulster.
Legal and Practical. 69
( 18 ) "In all essential particulars." In the general section u.
scope of the Act will be found the best test of the Essential
particulars
minimum of "essential particulars" required, so far at of custom,
least as compensation is concerned. Whatever is made
Monaghan, Kerry, King's County, and Queen's County,
said u Tenant-right, I might say to the full extent of the
Northern system, has been always permitted upon Lord
Lansdowne's estate in the county of Kerry." Q. 30.
"31. In a general way would you say that it exists on
other estates also ? Certainly it does.
"32. Earl of .Stradbroke To a great extent or to a small
extent? To various extents. The exact system which I
have described as existing in the North does not usually
prevail, but it exists to a great extent in various districts in
Ireland.
"33. Lord Meredyth To an increasing extent, do you
think ? No ; decidedly to a diminishing extent."
Mr. R. Kussell, agent to estates in Donegal and Meath,
said "In all parts of Ireland, I believe, a sum, either
directly or indirectly, is given for possession" (896).
"901. Lord Churston With regard to the large farms,
do they change hands in this way by a sum being paid for
the tenant-right of them ? Yes.
" 903. Take the largest farm in any part of Ireland you are
acquainted with, say 1 00 acres, will a man pay the same rent,
and 10 or 4.20 an acre for the tenant-right on coming into
it?_Yes.
" 904. Men are found to do it ? Yes ; for large farms they
give 700, 800, or even 1,000 for possession."
The Reports of the Poor Law Inspectors also indicate the Salc of good
ii ii i tti i wiu outside
prevalence here and there ot the true Ulster tenant-right, Ulster.
and in a wide area of a custom of disposing of the
good-will. Thus, Dr. King, whose district comprises parts
of the counties of Cork, Limerick, and Waterford, says
" Ulster tenant-right does not prevail as a custom in the
district under my charge ; but there are several instances in
which the landlord has permitted a tenant-at-will to sell his
70 Notes and Comments,
Section ii. a provision for the general body of tenantry is an
essential particular of the usage. Nothing less is
reasonable. An essential particular would be that the
usage in case of disturbance by the landlord should
interest in a farm to a solvent tenant of whom he (the land-
lord) approved ; but this is an act of grace on the part
of the landlord, and not in obedience to any prevailing or
established custom. In some instances of eviction for non-
payment of rent, a tenant so evicted has been allowed to sell
his interest in his farm, and to receive the sum remaining
after payment of the arrears of rent and law costs." Reports
of Poor Law Inspectors on the Existing Relations of Land-
lords and Tenants, 1870, p. 126. Mr. K.. Bourke, whose
district comprises parts of the counties of Clare, Galway,
Kerry, King's County, Limerick, Queen's County, and
Tipperary, says u A practice, in some measure resembling
the Ulster tenant-right, has no doubt prevailed in the South
for a very considerable length of time, and continues to
this day. It consists of a payment made by a person
desirous of obtaining a farm, to the tenant who is leaving it,
and is in the nature of a bargain between buyer and seller.
It most frequently occurs where the occupying tenant has
fallen into difficulties, and is unable to meet his rent In
the evidence before the Devon Commission, where it is
admitted to be prevalent, it is frequently said to be objected
to and disallowed. Now, however, consent is rarely refused,
though the arrangement is not unconditionally acquiesced
in, and is never admitted as a right. It is frequently per-
mitted as a means of securing arrears of rent, and an easy
method of providing for a man whose embarrassments are
driving him from his farm, and is favourably viewed if the
purchase will have the effect of uniting the land to that of
an adjoining tenant." Ibid., pp. 119, 120.
Dr. Hill, who^e district comprises parts of the counties of
Cavan, Dublin, Kildare, King's County, Longford, Meath,
Queen's County, Roscommon, and Westmeath, says " The
Ulster tenant-right custom can scarcely be said to exist in a
Legal and Practical. 71
give the tenant an amount sufficient to cover com- Section n.
pensation for disturbance as well as for improvements,
for this is of the essence of the Ulster custom and is
recognized as reasonable by the Act. It is an essential
recognized form generally in my district. It prevails to a
considerable extent in the county of Cavan, and appears to be
creeping in, in a more or less modified form, in several other
counties. In many parts of the country, a tenant is per-
mitted, as a favour or privilege, to dispose of his interest or
good-will in his holding to a person approved by the landlord
or agent, irrespective of compensation for improvements
made by the tenant. In other cases, where a tenant is in
arrear, and about to surrender his farm, he is allowed to
dispose of his interest in it on the best terms he can obtain,
to any one approved by the landlord, on the condition that
the arrears be discharged out of the purchase-money, the
balance going to the tenant. Sometimes the landlord himself
becomes the purchaser of the good-will in order to get rid of
a troublesome or obnoxious tenant, and to secure immunity
to himself. When a tenant is desirous of emigrating, it is
not unusual for a landlord to allow him to sell his interest or
good-will; but the landlord's consent must previously be
obtained." Ibid., p. 154.
The existence of usages outside Ulster, more or less resem-
bling the Ulster tenant-right, has been attested by many
witnesses examined by the Land Occupation Commission,
1845 ; amongst others, in Louth, by William O'Reilly, Esq.,
G. F. Blackburn, Esq., G. Johnston, Esq., and Rev. M.
Lennon ; in Longford, by G. Johnston, Esq. ; in King's
County, by T. P. O'Flanagan, and Mr. P. M'Comb ; in
Meath, by John Dyas, Esq., and T. Barnes, Esq. ; in Kil-
dare, by Rev. John Bagot ; in Kilkenny, by R. Eaton, Esq. ;
in Queen's County, by P. Lawlor, Esq., T. A. Bailey, Esq.,
and E. L. Swan, Esq., agent to Lord De Vesci ; in Wexford,
by T. Brehan, Esq., C. A. Walker, Esq., J.P., and R. C. B.
Clayton, Esq. ; in Wicklow, by Captain Abraham Tate,
Robt. Smith, Esq., and R. Chaloner, Esq., agent to Lord
72 Notes and Comments,
Section ii. particular that the usage should in no case deprive
the tenant of compensation for improvements. Under
the general provisions of the Act, ejectment for non-
payment of rent or breach of covenant will not forfeit
the claim for improvements. This also is of the
essence of the Ulster custom. An usage outside Ulster
which does not give a tenant evicted for any of the
above causes the value of his improvements in as full
measure as the 4th section, will not fulful the con-
ditions of an usage legalized by this section. So, as
to assignment. The want of the landlord's consent to
s.ub-letting or sub-division only deprives the tenant
of compensation for disturbance ; and the usage which
for this reason deprives a tenant of his improvements
wants an essential condition of the Ulster tenant-right,
and is not legalized by this section. It may, however,
be fairly held that more is required , that for instance,
as is the case under the Ulster custom, there should in
all cases of a tenant quitting be compensation for im-
provements and good will, not subject to forfeiture for
any cause, but only liable to deductions for arrears of
rent, landlord's improvements, and the like.
( 19 ) " Cease to be subject to such usage." See ante, p.
64.
Fitzwilliam ; in Clare, by M. Creavan ; in Cork, by Rev.
James Davy and Rev. Somers Payne ; in Limerick, by R.
O'Brien, Esq., and A. Furlong, Esq. ; in Tipperary, by E.
Taylor, Esq., Mr. E. Dalton, and J. J. Poe, Esq. ; in
Waterford, by Mr. M. Nolan; in Kerry, by Mr. Aug.
Mabery and Mr. E. O'Sullivan; in Galway, by T. H.
Graydon, Esq. ; in Mayo, by E. C. Lambert, Esq. ; in
Leitrim, by A. J. V. L. Burchill, Esq. ; in Roscommon, by
J. Duckworth, Esq., Captain K. Lloyd, and D. H. Kelly,
Esq. ; and in Sligo, by Mr. George Beattie.
Legal and Practical. 73
( 20 ) M Not claiming the benefit of such usage" The Section n
words of the first section are different : " Subject to The option.
such custom, but not claiming under the same ; " but
the meaning is the same. The only question that could
arise is whether a tenant, the tenant-right of whose
holding has been purchased by the landlord, might
exercise the option under this section, though he
cannot do so under the first section, the words
" subject to such custom," which clearly exclude him,
being omitted in the second. The question is of no
practical importance. In either case his rights would
be the same. If his tenant-right is purchased, he falls
under the provisions applicable to tenants generally ;
if he exercise the option, he comes under exactly the
same provisions ; and in either case, by section 1 8, the
purchase-money of the tenant-right forms a set-off in
favour of the landlord-purchaser, so that there is no
risk of the tenant obtaining a double compensation.
( 21 ) With the consent of the Court." See note ( 15 ) on The consent
section 1. The consent of the Court will not be of the court -
given to a claim which would involve payment twice
over for the same thing ; nor will it be withheld where
the claim is reasonable. In ordinary cases he may
reasonably claim under sections 3 and 4, or under
sections 4 and 7.
( 22 ) "Not be again subject." See ante, p. 67.
SECTION in.
( 23 ) In the original bill this section provided for Section m.
compensation for improvements as well as for disturb- Scope of
ance the scale covering all improvements other than
permanent buildings and reclamation of land, which were
dealt with under the fourth section. It was objected
74
Notes and Comments,
Section in. that the section in this form would, in the case of sub-
letting or sub-division, or in case of non-payment of
rent, lead to confiscation of the minor improvements
comprised in the scale contrary to the analogy of the
Ulster custom. Amendments were made in Committee
of the Commons which remitted all forms of compen-
sation for improvements to the fourth section, and made
this section deal only with compensation for disturbance,
except in the proviso under which a tenant valued at
more than 10, and claiming more than four years'
rent, and a tenant valued at 10 or less, and claiming
more than five years' rent, can only claim, under the
4th section, compensation for permanent buildings and
reclamation of waste land. It will be thus seen that this
section, in its present form, deals with improvements
as well as disturbance, and that its provisions do not
of themselves constitute a " statutable tenant-right."
Any mistake on this cardinal point will infallibly lead
to confusion of mind in dealing with the Act. The
compensation under the Ulster tenant-right includes
improvements and good-will ; and in the Act the 3rd
section is combined with the other sections dealing with
compensation, to provide an analogous scheme of com-
pensation for tenants outside the region of customs.
A claim under this section arises only on dis-
turbance.* Only the following classes of tenants are
entitled to compensation under it :
1. Tenants from year to year, of holdings under
tenancies existing at the time of the passing of the
Act (1 August, 1870) of an annual value of not more
than 100, disturbed by the act of the immediate
landlord.
Classes of
tenants en
titled to
compensa-
tion under
this sec.
* As to what constitutes " disturbance," see post, p. 77 ;
and sees. 9, 10, 13, 14, and 18.
Legal and Practical. 75
2. Tenants from year to year, or at will, or under section in.
tenancies less than yearly, or for a life or lives, or for a
term of years less than 31, if holding under tenancies
created after the passing of the Act.
3. Tenants of holdings let to be used wholly or
mainly for the purposes of pasture, and valued at less
than 50 annual value (sec. 15).
The following classes of tenants are excluded from ^ e n^ t s s of
compensation under this section : fr X om U ft ed
1. Tenants quitting voluntarily.
2. Tenants claiming under a custom ; but tenants
whose tenant-right has been purchased by the land-
lord can claim under it.
3. Tenants from year to year of holdings under
tenancies existing at the time of the passing of the
Act, of an annual value t of more than 100, though
disturbed by act of the immediate landlord, and all
tenants from year to year, existing at the time of the
passing of the Act, disturbed by act of a superior
landlord.
4. Existing lessees.
5. Future lessees for a term certain of not less than
31 years.
6. Tenants sub-dividing, sub-letting, or letting in
con-acre, contrary to proviso (2) of this section.
7. Tenants ejected for non-payment of rent, not
coming within the proviso as to non-payment of rent
in sec. 9.
8. Tenants ejected for breach of any condition
against assignment, sub-letting, bankruptcy, or insol-
vency (sec. 9).
9. Tenants who shall have given notice of surrender
and afterwards refuse to give up possession in pur-
suance of such notice, though evicted by the landlord
in a suit founded thereon (sec. 9).
76
Notes and Comments,
Section III.
Creation of
tenancy.
10. Tenants valued at not less than 50, who have
contracted in writing not to claim under this section
(sec. 12).
11. Existing tenants from year to year, who have
assigned without the landlord's consent, in certain
cases mentioned in section 13 ; or who are evicted for
persistent exercise of a right not necessary to the due
cultivation of the holding and from which they are
debarred by agreement with the landlord, or who are
evicted for unreasonable refusal to allow the landlord
the rights of entry mentioned in sec. 14.
12. Tenants of demesne land, '" townparks," &c, ex-
cluded from compensation under this section by sec. 15.
13. Tenants whom the landlord has been and is
willing to continue in occupation upon just and reason-
able terms, unreasonably refused (sec. 18).
( 24 ) " Tenant? Includes all tenants from year to
year, or at will, or for a life or lives, or for a term of
years less than 31.
( 25 ) " Tenancy created after the passing of this Act."
A tenancy will be created when a change is made in
the tenancy by alteration of rent, giving or renewing
a lease, acceptance of rent, or other act showing an
intention to create a tenancy after expiration of term,
or determination by special notice, or after determina-
tion of yearly tenancy by notice to quit, or after
determination of tenancy generally by surrender, or
otherwise, as by the landlord's entry for a forfeiture,
by virtue of an express provision or condition in the
demise; or by the death of the landlord, he being
tenant for his own life only ; * or by a disclaimer of
* Doe d. Thomas v. Roberts, 16 M. & W., 778; Doe d.
Collins v. Welter, 7 T. R., 478 ; Doe d. Tucker v. Morse, 1
B. & Adol., 365.
Legal and Practical. 77
the landlord's title.* If a remainderman accept rent Section nr.
reserved in a lease granted by the previous tenant for
life, he creates a new implied tenancy from year to
year as between him and the tenant on the old terms. t
Note that a yearly tenant under a tenancy existing on
1st August, 1870, is differently placed under this sec.
from such a tenant under a tenancy created after tha
date, in that
1. The limit of 100 valuation does not apply to the
latter ;
2. The latter can claim if disturbed by superior
landlord.
(26) ]y t entitled, or if entitled does not seek." Tenants Tenants en-
v ' . . . titled to, but
under an usage which the Act makes legal, and claiming not claiming
. . custom.
under it, cannot claim under this section ; as one of the
elements of their usage is compensation for disturbance ;
but they may, with the consent of the Court, waive the
claim under the custom, and elect to take the privilege
of this and the other sections provided for the general
body of tenantry. A tenant, whose tenant-right has
been purchased or acquired by the landlord is " not
entitled to compensation under sections 1 or 2," and is
therefore expressly entitled to the benefit of this section
(see ante, p. 63).
(27) Disturbed in his holding by the act of the land- Definition
v ' v n j of disturb.
lord." No definition of " disturbance " is given in the mice.
Act itself. Disturbance in a holding is a phrase new
* Cole on Ejectment, p. 445, 396 ; and see Tayleur v. Wildin,
L.R., 3 Ex., 303, where it was held that, by a notice to quit
given to a tenant from year to year, his tenancy is determined
at the expiration of the current year, and a waiver of the
notice creates a new tenancy, taking effect on the expiration
of the old one.
) Bell v. Nangle, 2 Jeb. & Sym., 259 ; Howard v. Sherwood,
Al. &. Nap., 217.
78 Notes and Comments,
Section in. to the law. Disturbance is an old legal term, meaning
a wrong done to an incorporeal hereditament, by
hindering or disquieting the owner in the enjoyment of
it, the old remedy for which was action upon the case.
In some sort of analogy to this use of it, the word is
in this Act applied to any act of the landlord which
hindering or disquieting the tenant in his holding,
leads to his quitting otherwise than voluntarily. But
the word is not to be interpreted by any narrow legal
notions applicable to quite different circumstances ; but
is to be interpreted in the light of the general scope
and provisions of the Act. The Act, in several of its
sections, specializes certain acts of the landlord which
are not to be deemed disturbance. By exclusions and
negative definitions, the meaning is clearly enough
indicated. That less than actual resumption of the
holding constitutes disturbance is evident* from the
provision of section 16, which prescribes that a claim
is to be served before the tenant has quitted his
holding; and that of section 21, which enacts that
the tenant is not to be compelled to quit his holding
until the compensation is paid. The following acts
are not to be deemed " disturbance :"
Acts not to l. Ejectment for non-payment of rent (except in
be deemed J r J ,
disturbance, certain special cases) or for breach of covenant against
assignment, sub-letting, bankruptcy, or insolvency
(sec. 9).
2. Resuming possession from a yearly tenant of
so much land, for the bond fide purpose of erecting
labourers' cottages thereon, unless deemed by the
Court to be unreasonable (sec. 10).
3. Eviction for persistent exercise of a right not
necessary to the due cultivation of the holding, or for
* See Carpenter v. Parker, 3 C. B. (N.S.), 206.
Legal and Practical. 79
unreasonable refusal to allow the landlord the rights of Section in.
entry mentioned in section 14.
And in the following cases the tenant is not entitled
to compensation under section 3 (in other words, is
not held to be disturbed) :
1. Eviction on a suit founded on notice of surrender
given by the tenant (sec. 9).
2. Assignment without the landlord's consent, by
existing yearly tenants, in the cases and with the
exceptions mentioned in section 13.
3. "Where the landlord has been and is willing to
permit the tenant to continue in occupation of his
holding on just and reasonable terms, and such terms
have been unreasonably refused by the tenant" (sec. 18).
Keeping in mind the purport of the Act, which is disturbance
to give stability of tenure, disturbance will, in the case
of tenancies to which the section applies, arise in the
event of any proceedings to resume possession of the
tenant's holding, by ejectment or otherwise, whether
commenced by superior, mesne, or immediate land-
lord (except in the case of existing yearly tenancies
under 100 valuation, in which case, by this section,
disturbance only arises when it is the act of the immediate
landlord). The serving of a notice to quit, being an
incipient resumption of possession, is equally with the
serving of an ejectment process or summons and plaint
in ejectment, a disturbance it not being the completed
act which causes the claim to arise, for the claim is to
be made by the tenant "about to quit his holding"
(sec. 16). This is plain from the language of sec. 18,
quoted above, which implies that the claim has arisen
though the tenant continues in occupation, and from R.
(Part I.), 4.
( 28 ) " The loss . . . sustained . . .by means of quitting Character
his holding." It has been suggested that " the loss" is an
80 Notes and Comments,
Section in. individual loss of occupation, of which the rent might be
a criterion ; where rent is low, the loss being the greater.
That this is not the loss intended is clear from the com-
pensation being calculated on the rent,andfrom section 9,
which makes in certain cases ejectment for non-payment
of "exorbitant rent" a disturbance, though ejectment for
non-payment of rent in other cases is not disturbance.
The loss is of a more general kind ; and its determi-
nation involves general considerations of public policy.
Its maximum is in no case to exceed 250 ; and the
maximum of the several grades is arranged in the
scale according to the valuation of the holding, the
lower the valuation the higher being the number of
years' rent the tenant is to receive as compensation.
This maximum is liable to reduction for claims and
set-offs, or for default, or unreasonable conduct (sec.
18). The character of the loss will best be appre-
ciated by a consideration of the object of the section,
and of the facts on which its legislation was founded,
why there It has been stated in the notes to section 1 that the
is no com-
pensation for agricultural customs of England do not provide for
disturbance m . .
in England, compensation for disturbance, the necessity for it not
arising as it does in Ireland. In England, the dis-
turbance of tenants is rare.* When disturbed, there
* Thus Mr. Dixon, writing of the great manufacturing
county of Yorkshire, says " There is hardly a single instance
of an agricultural lease ; all are yearly holdings. In the
North, the tenants of a great portion have no leases ; stipu-
lations as to tenancy would be almost a dead letter, as
changes are rare ; it would be easy to find out tenants on
many estates whose fathers and grandfathers before them
held the same farm, and under the same unwritten agree-
ments." Law of the Farm, page 31. Of another county he
says, " that the tenants and their ancestors have held the
same farms for four hundred years."
Legal and Practical. 81
are other industrial occupations ready to receive them. Section iil
At the very worst, if they have fallen into poverty, Reasons for
J ' ;. * . , it in IreUnd.
since the days of Queen Elizabeth, the statute law has
imposed upon the land the burden of supporting them.
In Ireland all this is different. Changes of tenancy
are frequent. There are no manufactures, except in
the linen districts. The policy of consolidating farms
makes it impossible for the tenant, and especially the
small tenant, ejected from one farm to find another.
A poor-law, much less liberal than the English, and
which recognizes no legal right to relief to the able-
bodied, is only in existence since 1838. In the words
of Mr. Kavanagh, M.P. " If a man is a small farmer,
he has, I may say, hardly an alternative unless it be the
poor-house."* In Ulster, the sale of the tenant-right,
* Lord Lurgan said " For the government of the Ulster Lord Lurgan
Plantation, King James I. introduced every English Institu- r at e and r
tion save one the English Poor Law. And whether it was r
C
O
III
m
e * a
o
Valuation
Assumption
Rent reduced in
same proportion
as valuation
Compensation
with Proviso
a. d.
s. d.
A
1]
11
55
10
10
70
B
11
12
60
10
10 18 2fj-
76 7 3 T \
C
11
9
45
10
8 3 7A
57 5 5-ft
D
41
41
123
40
40
160
E
41
50
150
40
48 15 7
195 2 4
F
41
35
105
40
34 2 11
136 11 8
( 31 ) "No tenant .... shall be entitled to make a Proviso as
, ,. . i i j. tt i to claim for
separate or additional claim jor improvements. Under improve-
this proviso to the scale, a tenant of the lowest grade
(1) may claim five years' rent and compensation for all
improvements, or seven years' rent and compensation
for buildings and reclamation. So, as to grade (2), a
tenant under it may claim four years' rent and all
Notes and Comments,
Section III.
Buildings
and recla-
mation ex-
ceptionally
treated.
Deductions.
Deteriora-
tion.
improvements, or five years' rent and buildings and
reclamation.
( 32 ) "Permanent buildings and reclamation of waste
land." These improvements are, throughout the Act,
treated exceptionally. See post, notes 59 and 60.
( 33 ) " All sums due . . . may be deducted."
Apparently the sums due, not at the time of disturbance,
but at the time at which the claim is settled by agree-
ment between landlord and tenant, or is adjudicated
upon by the Court (sees. 17, 18, 21).
( 34 ) u Rent." The Statute of Limitations is a bar to
the recovery of more than six years' rent on a parol
demise ; but twenty years' arrears may be recovered
on a lease.
( 35 ) ''Deterioration of holding." This word is not
equivalent to what is known in law as waste. Waste
in law is, in some cases, improvement in fact. " If a
tenant build a new house, it is waste, and if he suffer
it to be wasted it is new waste."* So, if a tenant
under lease of lives renewable for ever, made before
1st January, 1861, though converted into fee-farm
grant, reclaim profitless bog, through the beneficial
operation of cutting and selling turf off it, this is
waste.f If a person enclose or cultivate waste land
included in the demise it is waste. J What is here
meant is the opposite of amelioration ; it is deteriora-
tion in fact acts done to the holding which lower its
value, i.e., its letting value for the purpose for which it
is let. If the acts done increase this value, though
they injure or diminish in value the residue of the
* Woodfall, p. 505 ; Co. Litt., 53a.
f Gorev. 0' Grady, 1 Ir. R. Eq., p. 1 ; see also Coppinyer
v. Gubbim, 3 J. & L. 397.
} Queen's Colleye v. Hallet, 14 East., 489.
Legal and Practical. 89
landlord's estate [i.e., are waste], they are not deteriora- Section in.
tion (see post, notes 242-244).
/36\ u Non-observance on the part of the tenant." It peteriora-
v ' tion by pre-
will be observed that the deductions in respect of rent decesaors of
r tenant
are those due by the tenant or his predecessors in title
(see explanation of this phrase, sec. 11); whilst in
respect of deterioration, they are those due in respect
of breaches of covenant or agreement by the tenant
(and not his predecessors in title).
( 37 ) " Implied covenant." It is an implied covenant J enant,
to use the buildings demised in a tenantable and
proper manner, and to manage and cultivate the
lands in a good and husband-like manner, according to
the custom of the country ; * but not to make a certain
quantity of fallow, and spend a certain quantity of
manure theseon, and keep the buildings in repair, or
any other stipulation not arising out of the bare relation
of landlord and tenant. t By statutes 23 & 24 Vic,
c. 154, sees. 26-31, certain implied covenants are
attached to leases or demises, or other contracts of
tenancy, as not to burn land, open mines, cut trees, &c.
( 38 ) " Taxes payable by the tenant due in respect of the Taxes.
holding, and not recoverable from the landlord." These
are: 1. Poor-rate One-half in the case of holdings
valued about 4, the whole, if the tenant has so con-
tracted by agreement not made between 31st July,
1838, and the 1st August, 1849 (in which interval such
contracts were illegal by 1 & 2 Vic, c 56, repealed by
12 & 13 Vic, c 104, s. 12). 2. County cess
The whole, unless in the case of tenancies created
* Woodfall, page 125; Horsefallv. Mather, Holt, N.P.C.,
7 ; Leach v. Thomas, 7 C. & P., 327 ; Powley v. Walker, 5
T. P., 373 ; Bickford v. Parson, 5 C.B., 920.
t Broxcn v. Crump, 1 Marsh, 567.
90 Notes and Comments,
Section in. after this Act, in which case the tenant, when it
exceeds 4, may recover one-half. 3. Income-tax
So much as is not recoverable by the occupier from
the landlord ; i.e., that paid by him on the difference
between the rent and the value.
Sub-division ( 39 ) " Sub-divides such holding, or sub-lets." A tenant,
letting. without the consent of the landlord, sub-dividing or
, sub-letting after the passing of the Act, forfeits his
claim under this section. Its provisions have no
reference to the sub-letting Acts* which apply only to
written contracts of tenancy, and which remain in
force, applicable to assignment, sub-letting, and letting
in con-acre ; and no breach of the sub-letting Acts,
unless it is also a breach under this section, will pre-
vent the tenant obtaining the compensation of the
section. Assignment is not sub-dividing or sub-letting
under this section (see sec. 44). It is an increase in
the number of holdings in fact occupied, or the creation
in fact of inferior holdings that the provision is intended
to guard against, not the free transfer of the entire
holding, or of the tenant's whole interest in it.
Assignment. Assignment by existing yearly tenants is dealt
with in section 13, and when the consent of the
landlord has not been obtained, is in certain cases
made a forfeiture of the compensation for disturb-
ance ; but in the present section, which applies to
leasehold tenants under leases made after the Act as
well as to yearly tenants, assignment, however it may
* The 7 Geo. IV., c. 29, and 2 Wm. IV., c. 17, repealed
(the former save as to leases and agreements made between
1 June, 1826, and I May, 1832; the latter save as to sec.
1), and the provisions of the latter shortly re-enacted by 23
and 24 Vic, c. 154, sees. 10, 18.
Legal and Practical. 91
be affected by the sub-letting acts, is no ground of for- Section in.
feiture of the benefits of sec. 3.
It has been doubted whether the occupation of
houses with small portions of land thereto attached is
any breach of a covenant against sub-letting, when the
occupiers are labourers of the lessee, hold merely as his
servants, and are bound to give up the premises on
demand by him.*
The analogy of the Ulster custom has been departed Forfeitures
0,/ 1 contrary to
from in this provision of the section. Sub-lettinjr, or Ulster cus-
, . . , torn and to
sub-division without consent, is not under the custom equity.
made to work forfeiture of the tenant-right. In this
respect the Ulster custom is in accordance with the
policy of our law and equity courts. "Forfeitures
are not favoured in law."f Relief from forfeiture for
breach of conditions in leases, mortgages, &c, forms a
large branch of equity j urisprudence. As this provi-
sion of the section is one of forfeiture, it is to be
construed strictly.
( 40 ) " Consent." It was on the principle stated in last ^ after Ac7
note that on the 3rd section of the original sub-letting prohibited.
Act, it was held that a consent would be sufficient if
given pursuant to the statute, within a reasonable time
after execution of the assignment or sub-lease ; and
such subsequent consent by a party who then had
a right to give it will complete what was pre-
viously an inchoate assignment or sub-lease. } Where
a landlord had been guilty of fraud by advising
* Browne v. Sligo, 10 I.C.R., 1 ; 5 I. Jur., N.S., 85 (C).
f Per Lord Mansfield, Goodright v. Davies, Cowp., 803.
\ Walker v. Crommelin, 4 L. Rec., 115-200, cited Ale.
and N., 347 ; Savage d. Davis v. Davi% 4 I. L. R., 353 ;
Butler v. Smith, 16 I. C. L. R, 213; Palmer v. Moxon, 2
M. & S., 43.
92 Notes and Comments,
Section in. an( j encouraging a lessee to execute an assignment of
the lands comprised in the lease, and witnessing its
execution, with full knowledge of its contents, a court
of equity relieved the tenant against a forfeiture
incurred by breach of a condition contained in the
lease against assigning or sub-letting.*
bebTagSt 7 ( 41 ) " Of the landlord in writing:' It would appear
that the consent may be that of the agent. Where a
person's consent is required for the execution of a power,
it has been held that he cannot delegate the confidence
reposed in him, on the ground that it would operate
as a total destruction of the check intended by requir-
ing the personal application of the trustees, t But an
execution, by an attorney, of the deed already prepared,
and to which the principal had agreed, was supported
as a valid consent. J
The former case is not quite in point, as it was an
instance in which a delegated authority was re-dele-
gated and was properly decided in accordance with
the maxim " Delegata potestas non potest delegari"
The consent of the landlord is not a delegation. The
reason of the decision the breach of personal confi-
dence fails. Besides, the rule as to forfeitures applies ;
so that it will probably be sufficient, if the agent gives
consent in writing, with express or implied authority
from the landlord to do so. An apparent difficulty in
the way of this construction is the use of the words,
" landlord or his agent," in the following words as to
letting in con-acre ; but in this latter case it is a
* Burke v. Prior, 15 I. Ch. R., 106 ; Cainham v. Barry,
15C.B., 597.
f Hawkins v. Kemp, 3 East., 410.
X Offen v. Harman, 29 L. J., N.S., 307.
2 Inst., 597.
Legal and Practical. 93
prohibition; in the former, a consent, which is to be Section in.
given. The prohibition required to be " by the land-
lord," in order to forfeit the claim under the section
for letting in con-acre, could not have been extended to
prohibition by the agent, for this would be to extend
the forfeiture, and so the words H or his agent," are
necessarily added ; but they are unnecessary in the case
of the consent to sub-letting, which, to avoid forfeiture,
should be construed liberally.
( 42 ) " In con-acre." See previous note. Con -acre, Co ^'^ not
which is here distinguished from sub-letting and sub-
division, had been decided not to be a sub-letting
under the sub-letting Acts.*
( 43 ) " Green crops." Land in the North is often let Con-acre in
p /i i i , flax and
in con-acre for flax, where the tenant has not himself other green
the requisite capital or skill. If " properly manured,"
land let in con-acre for flax, comes within the excep-
tion ; and the tenant so letting will not forfeit his
privileges under the section, even if prohibited by the
landlord from so doing. " Other green crops" also
include turnips, mangolds, carrots, parsnips, peas,
beans, vetches, &c.
( 44 ) " Sub-tenant." The sub-tenant of lands sub-let Sub-tenant
.,..,, . of lands
or sub-divided without the consent required, is also sub-iet with-
deprived of all claim under this section against the
tenant (his immediate landloi d), as well as the tenant
against his landlord.
( 45 ) "Lease for a term certain of not less than 31 Compensa-
. tion to les-
years." Lease includes agreement for a lease (section **** for 31
. . x years.
70). This applies to leases made after the Act. No
compensation is given under this section in the case
* Westmeath v. Hogg, 3 I.L.R. 27 ; Booth v. M'Manus,
12 I.C.L.R. 419 ; Comiskey v. Bourn, 6 Ir. Jur. N.S. 109.
94 Notes and Comments,
Section in. of any lease made before the Act. Under section 4,
sub-sec. 3, a tenant under a lease made before or
after the Act for 31 years, is only entitled to compen-
sation for permanent buildings, reclamation of land
and unexhausted tillages and manures, unless it is
specially provided in the lease that he shall be entitled
to further compensation.
Tenants holding under leases made after the Act,
for a term certain of less than 31 years, or for an
uncertain term, as a life or lives, may claim under this
section.
im S ned f te- ( 46 ^ " Tenancy from year to year existing." See
nancy from an f e no t e 25, p. 76. "Where a person is let into pos-
year to year. ' r r r
session under an agreement for a lease, and pays
rent, he thereby becomes tenant from year to year,
upon the terms of the intended lease.* So, as to a
person let into possession under a void lease, and
paying rent.t So, as to a person having a mere per-
mission to occupy and paying rent quarterly or for
some other aliquot part of a year.j But actual pay-
ment of rent is not essential. Where the payment of
rent is allowed to stand over by mutual consent, that is
sufficient^ Where a lessee holds over after expiration
of lease and pays rent as before, a new tenancy from
year to year is created.|| When a tenant of glebe land
remained in possession for eight months after the
* Doe d. Thompson v. Amey, 12 A. & E., 476 ; 4 P. & D.,
177.
t Lee v. Smith, 9 Ex., 662.
t Doe d. Hull v. Wood, 16 M & W., 682.
Cox v. Bent, 5 Bing., 185; Vincent v. Godson, 24 L. J.,
Ch. 122.
|| Doe d. Hollingworth v. Stennelt, 2 Esp., 717; Hyatt v.
Griffiths, 17 Q. B., 505.
Legal and Practical. 95
death of the incumbent, it was held that after such a ^Section in.
lapse of time it was to be inferred that the new incum-
bent had assented to the continuance of the tenancy on
the same terms as before, and that a notice to quit was
necessary.*
(47) "Immediate landlord." Existing yearly tenants Existing
^ ' o J J yearly te-
valued at not more than 100 are the only class nants under
* middlemen.
entitled to u . retrospective compensation for disturb-
ance under this section, but only if disturbed by their
immediate landlord. Other tenants entitled under this
section can claim, if disturbed by superior, mesne, or
inferior landlords. The words, " immediate landlord "
may be illustrated thus: A lets to B for 14 years,
and B sub-lets to C from year to year. At the
expiration of 14 years, B's tenancy, and consequently
C's sub-tenancy, determines by effluxion of time. C
under this section can only claim against the im-
mediate landlord, B, not against the superior land-
lord, A. Where tenancies are created subsequently
to the passing of the Act, and the interests of a suc-
cession of landlords are involved, the adjustment of
their rights and obligations is provided for by sec. 20.
( 48 ) " Any contract made . . . void both at law and Contracts in
mi m i / derogation
in equity. 1 his provision applies to contracts before void,
as well as after the Act. The question would only
arise in the case of yearly tenants ; and as the legis-
lation in reference to compensation for their benefit is
retrospective, this necessary complement of the legis-
lation is retrospective also. The compensation for
disturbance being given from motives of public policy,
the tenant cannot by contract deprive himself of it, any
more than he can contract not to claim poor law relief.
Doe d. Cates v. Somerville, 6 B & C, 132.
96 Notes and Comment?,
Section in. Such contracts will be void whether parol, written, or
under seal ; and no matter how artfully framed or how
concealed, if " the manner of the transaction was to
gild over and conceal the truth, courts of law will brush
away the cobweb varnish and show the transactions in
their true light."* The whole contract is not made void,
but merely the illegal part. A distinction has been made
between cases in which the consideration and those in
which the condition or promise is illegal. A consider-
ation bad in part is bad altogether, whereas the promise
may be as to several distinct and independent acts, of
which some are legal, some are illegal ; if so, the promise
will be valid in regard to the former, void as to the
latter of such acts ; except where, in consequence of
some peculiarity in the contract, its parts are inseparable
or dependent upon each other, f Hence, if the fore-
going of the tenant's claim is the consideration for the
contract, the whole contract will be void ; but if it is a
covenant or promise, it is void only " so far as relates
to such claim."
This provision is only to remain in force for twenty
years, when, it may be expected, tenants will be able
to contract freely, and to protect themselves against
unreasonable contracts.
ma ^on-" 18 ( 49 ) " The section f tJlis Act relating to the partial
tract freely, exemption of certain tenancies." This is the 12th, by
* Per Wilmot, C.J., in Collins v. Blantern, 2 Wils., 341,
and Smith's Leading Cases, Vol. i., p. 325.
f Featherstone v. Hutchinson, Cro. Eliz., 199; Waite v.
Jones, 1 Bing., N. C, 662 ; Thackall v. Rosier, 2 Bing., N. C,
646; Howden v. Haigh, 11 A. & E., 1036; Mallan v. Mag,
11 M. & W., 653; Green v. Price, 13 M. & W., 695;
Price v. Green, 15 M. & W., 346; Bourke v. Blake, 7
I. C. L., 348.
Legal and Practical. 97
which a tenant of a holding not proved subject to a Section in
custom or usage, whose holding, or the aggregate of
whose holdings, in Ireland is valued at not less than
50, may, in writing, contract himself out of the
benefits of section 3.
SECTION IV.
( 50 ) This section deals with compensation for im- Section iv.
provements. Tenants under the Ulster custom, or General
similar usages, are excepted from its provisions, for sec. 4.
the usage includes compensation for improvements,
unless in consequence of the option they forego their
claim under the usage, or the usage has been pur-
chased or acquired by the landlord ; in either of which
cases they can claim under this section. Generally,
all tenants, yearly, or under lease made before or
after the Act, are entitled to avail themselves of its
provisions. But the following are excluded from com-
pensation for all improvements, viz. : Tenants under
a lease or written contract made before the Act, which
expressly excludes the right to any compensation for
improvements. And the following are excluded from
compensation for all improvements except permanent
buildings, and reclamation of waste lands, and un-
exhausted tillages or manures, viz. : Tenants under
a lease made either before or after the passing of
the Act, for a term certain of not less than thirty-one
years, or in case of leases made before the passing of
the Act, for a term of a life or lives, with or without a
concurrent term of years, and which leases shall have
existed for thirty-one years before the making of the
claim. In the cases of all tenants, certain improve-
ments are excepted from compensation which are set
out in sub-sec. (1), paragraphs (a), (b), (c), (d), (e).
H
entitled.
98 Notes and Comments,
section iv. After the analogy of the Ulster custom the benefits
of this section are not forfeited by any act of the
tenant, and they may be claimed by him whether he is
quitting voluntarily or disturbed by act of the landlord.
( 51 ) Not entitled .... or if entitled does not make
any claim." See note (26), sec. 3, p. 77.
qSttSj ( 52 ) " Quoting." That is, leaving voluntarily, or dis-
turbed by act of superior, mesne, or inferior landlord.
None of the acts which were made causes of forfeiture
of the benefits of section 3, prevent a tenant claiming
under this section for improvements. A tenant may
assign, sub-let or sub-divide without consent ; he may
let in con-acre after being prohibited ; he may be
evicted for non-payment of rent or breach of cove-
nant ; but though these acts will deprive him of the
benefits of section 3, they will not deprive him of the
benefits of this section.
( 53 ) u Subject to the provisions of sec. 3." This refers
to the proviso " provided that no tenant of a holding
valued at a yearly sum exceeding 10, and claiming
under this section more than four years' rent, and no
tenant of a holding valued at a yearly sum not exceed-
ing 10, and claiming as aforesaid more than five
years' rent, shall be entitled to make a separate or
additional claim for improvements other than perma-
nent buildings, and reclamation of waste land" (see
ante, p. 87).
Form of (54\ u Claim." The mode of making a claim is set
claim. v f
out in sec. 16. It is to be made against the landlord ; but
a landlord who gives his tenant permission to sell to an
in-coming tenant on reasonable terms avoids the claim.
Principle (55) Compensation." What is to be the principle of
of compen- v ' ' .
sation. compensation i Is it the cost to the person making the
improvements, or is it the value added to the holding ?
The added value may be in part due to the superior
Claimants
under sec. 3,
Legal and Practical. 99
natural qualities of the soil, the payment for which Secttoniy.
constitutes rent. Reclamation could be effected at half
the cost on a naturally rich soil, with few stones in it,
which it would cost on a stiff, cold clay, full of rocks
and stones ; yet the added value might in the former
case be double what it would be in the latter. In
compensating the tenant, then, for improvements, the
primary value or cost is the proper test not the actual
cost at the time the improvement was made, for it
may have been made imprudently, and prices of
labour and materials may have changed but what it
would cost if prudently effected at present prices.
In the case of improvements liable to deterioration, as
buildings, fences, roads, &c, the cost will be their
existing value, that is, their primary cost diminished
by the amount representing wear and tear ; or if they
have not been deteriorated, or have been even improved,
what it would cost to put them up in their actual state,
Time of enjoyment is not to be considered in esti- Time of en-
mating compensation. This, in connexion with rent ;oymen
and benefits received, is, in the last paragraph, ex-
pressly made subject of consideration for the court,
but only in the case of improvements made before the
passing of the Act (see notes 75, 76, 77).
( 50 ) " Improvements." These are defined as Definition
(1) Any work which being executed adds to the ments. ,0T
letting value of the holding on which it is
executed, and is suitable to such holding.
(2) Also tillages, manures, or other like farming
works, the benefit of which is unexhausted at
the time of the tenant quitting his holding
(sec. 70).
But breaking up or tilling grazing or meadow land, or
cutting timber without the landlord's consent, is not an
improvement.
100 Notes and Comments,
Section iv. The first class include such works as buildings, recla-
mations, drainage, irrigation, roads, levelling, squaring
of fields, clearing away rocks or stones, fences, &c,
provided they increase the letting value and are suitable
to the holding (i.e., for the purpose for which it was
let, as agricultural or pastoral land, as the case may
be, not the purpose for which the landlord may after-
wards design it). Hence, if the improvement is one
suitable to a small farm, the tenant of such a farm is
entitled to compensation therefor, though the landlord
intends, and would find it profitable, to consolidate his
small into large farms.
The second includes tillages (i.e., acts of husbandry,
as ploughing, fallowing, weeding, &c), and manures
(such as guano, dissolved bones, lime, superphosphate,
shells, marl, farm-yard, and liquid manure, &c), the
benefit of which is unexhausted when the the tenant is
quitting.*
improve- * See post notes 242-244. "Improvement of land" is
the'improve- defined in the Improvement of Land Act, 1864, to include:
L^dAct. 0) The drainage of land, and the straitening, widening,
1864. deepening, or otherwise improving drains, and
water courses of any land.
(2) The irrigation and warping of land.
(3) The embanking and weiring of land from the sea or
tidal waters, or from lakes, rivers, or streams, in a
permanent manner.
(4) The enclosing of lands, and the straitening of
fences, and re-division of fields.
(5) The reclamation of land, including all operations
necessary thereto.
(6) The making of permanent farm roads, and perma-
nent tramways, and railways, and navigable canals,
for all purposes connected with the improvement of
the estate.
(7) The clearing of land.
Legal and Practical. 101
(57) "Predecessors in title." That is, persons from Section iv.
whom the tenant has purchased or derived his interest Predeces-
, . . c , , ., ., x sors defined.
by succession or operation or law (sec. 11).
(58) m Improvement made before the passing of this Act." Limits of
What has been called retrospective compensation for compe P nsa- Ve
existing improvements is unlimited in the case of per- ton '
manent buildings and reclamation of waste land ; but
in the case of tenancies existing at the time of the
passing of the Act, subject to the provision in the last
(8) The erection of labourers' cottages, farm-houses,
and other buildings required for farm purposes, and
the improvement of, and addition to, labourers'
cottages, farm-houses, and other buildings for farm
purposes, already erected, so as such improvements
or additions be of a permanent nature.
(9) Planting for shelter.
(10) The constructing or erecting of any engine-houses,
water wheels, saw and other mills, kilns, shafts,
wells, ponds, tanks, reservoirs, dams, leads, pipes,
conduits, watercourses, hedges, weirs, sluices, flood-
gates, or hatches, which will increase the value of
any lands for agricultural purposes.
(11) The construction or improvement of jetties, and
landing places on the sea coast, or on the banks of
navigable rivers or lakes, for the transport of
cattle, sheep, and other agricultural stock and
produce, and of lime manure and other articles
and things for agricultural purposes, provided
that the Commissioners shall be satisfied that
such works will add to the permanent value of the
lands, to be charged to an extent equal to the
expense thereof.
(12) The execution of all such works as in the judg-
ment of the Commissioners may be necessary for
carrying into effect any matter hereinbefore men-
tioned, or for deriving the full benefit thereof.
102 Notes and Comments,
Section iv. paragraph of this section, which directs the Court to
take into consideration the time of enjoyment, rent and
any benefits received in consideration of the improve-
ments. Retrospective compensation for other existing
improvements is limited to twenty years before the
making of the claim. Compensation for all improve-
ments made since the passing of the Act, minor im-
provements as well as buildings and reclamations, is
unlimited retrospectively,
and % ( 59 ) " Permanent buildings." These, as well as recla-
ceptionafiy mations, are exceptionally treated throughout the Act.
treated. They are not to be forfeited for non-payment of rent
or breach of covenant ; and no length or form of lease
is held to exclude a claim for their value, except a
lease made before the Act, expressly excluding such
compensation.
pe e rmanent f -^ definition of " permanent buildings " is given in
buildings. ^ e Act. What constitutes a permanent building varies
in different localities. A permanent building in any
locality will be a building which has existed for a
reasonable length of time, or which is of the character
of buildings in that locality, used permanently for the
purpose for which it is designed. Houses which
are habitually used permanently as farm-houses, offices,
or other buildings for farming purposes or labourers'
cottages, in the locality, no matter how humble
their construction or cheap their material, slated or
thatched, mud or stone, are permanent buildings.
They may be even of wood, if wooden buildings are
in any neighbourhood habitually used for the purpose
for which they are intended in permanent occupations
of holdings. The term will also cover " improvements
of, and additions to, farm-houses, labourers' cottages,
and other buildings for farm purposes already erected,
so as such improvements be of a permanent nature"
Legal and Practical. , 103
(see 27 & 28 Vic, c. 114, s. 9). The term is not exclu- Section iv.
sive of fixtures, for by 14 and 15 Vic, c 25, s. 3,
buildings built in or permanently fixed to the soil, pro-
vided the conditions of the statute are fulfilled, are
made fixtures removable by the tenant. Such buildings
might be of the most permanent kind ; but the removal
of the materials falls far short of compensation for the
buildings.
It is a rule of the Ulster tenant-right not to include Buildings
under te-
the buildings in valuations for rent (see ante, p. 37). nant-rignt.
The buildings, so long as they last and continue
suitable for the purposes for which the tenant uses the
land, are considered to be the foundation of a perpetual
claim for their actual value. The claim is reasonable.
Houses require constant care and frequent repairs. If
built and kept in repair by the tenant, no lapse of time
should bar the claim for their existing value. Hence
the exception in the text of buildings from any limit
as to length of claim.*
The leasing power for buildings in the Landed Pro- Leases for
r & . . buildings in
perty Improvement Act, 1860, is ninety-nine years; Ulster.
but on application to the Court, any longer term can
be granted. That eighty years, the usual London
term, is quite insufficient in Ireland, is shown by the
fact that in Londonderry, on the portions owned by the
* Mr. Dixon says of the agricultural customs of Mid g^ {
Kent " There was once no allowance for the improvement buildings,
of buildings, but now it is generally considered that a tenant
has a right to be paid for all buildings erected by him with
the landlord's consent." Law of the Farm, p. 13. Mr.
Finlayson adds "This is in accordance with the ancient
law as laid down by Bracton, and with the ancient customs
of France, founded on the equitable principles of the Roman
law." Tenures, p. 81.
104 Notes and Comments,
Section iv. Irish Society, and where leases of only eighty years
exist, building has been altogether checked. The
general usage and prevalent feeling on the subject in
the North will be gathered from an affidavit of the
Duke of Manchester, made in 1860, to support an
application to the Court of Chancery for extended
leasing power in the matter of his estates in Porta-
down.*
2 ( G0 ) " Reclamation of waste land." No legal definition
can be attempted of this improvement. A true defini-
tion would be an enumeration of cases. This has not
been attempted in the Act, for the same reason that an
enumeration of improvements was not attempted, lest
in the case of an omission through accident or over-
sight, a forfeiture would be caused of improvements.
In 23 and 24 Vic, c. 1 53, s. 11, reclamation of land from
tidal and other waters is mentioned. The operation
* Part of His Grace's affidavit is as follows : " That,
through his agent, he received many applications for portions
of the said lands for building purposes, from various persons,
at greatly advanced rents to those upon which they are at
present let, upon the terms of obtaining leases thereof in
perpetuity, or for a long term of years, but deponent has,
been unable, for want of the power to make such leases,
to take advantage of such offers.
"That it is the usual custom of the owners of such
lands held in perpetuity as aforesaid to grant building
leases in perpetuity, or for lives renewable for ever, or for
a long term of years equivalent to perpetuity, the effect
of which is nearly to exclude the building ground on
deponent's estate from the market, and to render it at
present almost valueless for that purpose.
" That it would be beneficial to the inheritant of the said
estate to grant building leases on the said lands for terms
of 999 years."
Legal and Practical. 105
will doubtless vary in different localities. "Waste Sectionw.
land" might be defined as land unenclosed, or not
operated upon for agricultural or pastoral purposes,
or land in a state of nature. " Reclamation of waste
land," as land which, being unenclosed, has been
enclosed, or which being enclosed and not having been
operated upon, has been operated upon.*
A glance through the evidence on the reclamation
of waste lands in the Digest of Evidence before the
Devon Commission, or (better) the Index of the com-
plete evidence under the same head, will satisfy any
one how various are the operations going under this
name, as well as their cost. Breaking up, ditching,
and liming in one place ; draining, and cultivating,
and top-dressing, in another; clearing the bed of a
river, making stone drains, clearing away rocks,
shrubs, and roots, in another ; sub-soiling by hand-
labour, or by the common and sub-soil plough in the
same furrow, in another ; excluding the tide by bank-
ing, making holes with the spade, and putting into
them bog with roots of grass in another ; draining,
paring, burning, and putting on horse manure and
gravel in another ; ploughing the turf mould, getting
out stones, liming and cropping for potatoes for two
years, and then sowing permanent grass, in another ;
blasting rocks, and cultivating in another; draining
and manuring with coral sand and seaweed, in another.
The cost is as various as the operations, ranging from
5 to 20, or even 30 an acre. The land operated
upon is also stated to be of various values in some
* The ancient Irish period of lease of waste land was 61
years (11 & 12 Geo. III., c. 21 [Irish],) and the same
period was adopted in Mr. Napier's Leasing Bill of 1 853,
and Mr. Fortescue's Bill of 1866.
106
Notes and Comments,
Section IV.
Prohibition
of improve-
ments.
Improve-
ments under
contract.
Diminishing
general value
of estate.
places all but worthless ; in others, worth 3s. or 4s. an
acre. Generally it is put down as worth, in its unre-
claimed state, from Is. to 2s. 6d. an acre.
( 61 ) " Improvement prohibited in writing by the landlord."
The reason of this exception is obvious. By sec. 58,
as it originally stood in the Bill, notice to quit was not
to take effect for twelve months, so that, if this had
become law, a landlord practically could not have
turned out a tenant for two years. During this period
a yearly tenant, and during the unexpired residue of a
lease, a tenant under lease, might have made improve-
ments " calculated to diminish the general value of the
landlord's estate," but for which he could have claimed
compensation, if they were suitable to the holding, and
added to its letting value. This part of the section
provides against the possibility of this by enacting that
such improvements, if prohibited in writing by the
landlord, as being calculated to diminish the general
value of his estate, and if they appear to the Court to
be so calculated, shall not furnish a claim for improve-
ments under the section.
As to whether the landlord can delegate his authority
to M prohibit," see sec. 3, sub-sec. (2), where the words
are " prohibited by the landlord or his agent," and note
thereon, page 92.
( 62 ) " Improvements made . . . in pursuance of a
contract entered into for valuable consideration therefor"
No compensation is payable, for an improvement made
before or after the Act, which the tenant has con-
tracted with his landlord to make, and for which
he received valuable consideration i.e., money or
money's worth.
( 63 ) " Subject to the rule in this section mentioned as to
contracts'" i.e., the rule prohibiting contracts not
to make improvements "required for the suitable
Legal and Practical. 107
occupation and due cultivation of the holding," if not -See/ton iv.
appearing to the Court " to diminish the general value
of the landlord's estate." A tenant shall not obtain
compensation who contracts in writing not to make
improvements outside this rule (i.e., improvements
adding to the letting value of the holding, and suitable
to it, which appear to the Court to diminish the general
value of the landlord's estate).
/64\ u Landlord has undertaken to make." The land- improve-
i i _. , mentsunder-
lord may execute the improvements himself. It he taken by the
, , * , , . landlord.
has undertaken to do so, the tenant is not to get com-
pensation for such improvements, whether made before
or after the Act, unless " when the landlord has failed
to perform his undertaking within a reasonable
time." By a subsequent portion of this section, con-
tracts not to make improvements are made void ; and
a landlord is not, by undertaking to make improve-
ments, and unreasonably delaying to do so, to prevent
improvements being made. It would appear that the
undertaking, unless one not to be performed within
a year, need not be in writing ; as improvements
executed by the landlord have been held* not to be
" an interest in land " under the Statute of Frauds.
( 65 ) " Riqlit to which compensation is expressly exclu- ^ se e *ciu-
v ' * r j ding com-
ded." These words were substituted for the words of pensation.
the original Bill u title to which is excluded," in
order to meet the case of leases, with the common
covenant on the part of lessees to surrender, at the
determination of the tenancy, all the improvements
made or to be made, during the term, to the
landlord. These leases, it might have been argued,
excluded a u title to improvements ;" but as they clearly
* Holy v. Roebuck, 7 Taunt., 157 ; Price v. Leyburn, Gow.,
109.
108
Notes and Comments,
Leases bar-
ring claim
to compen-
sation.
section iv. do not " expressly exclude the right to compensation
for improvements," they will not defeat the tenant's
claim to compensation under the section. This provi-
sion only applies to leases or written contracts, made
before the passing of the Act.
( 66 ) " Lease . . for . . . thirty-one years."
A lease for thirty-one years certain made before or
after the Act, or a lease made before the Act for a life
or lives with or without a concurrent term of years, and
which shall have existed thirty-one years before the
making of the claim, is considered to be a compensation
for minor improvements, but not for permanent build-
ings or reclamation of waste lands, which require a
longer compensating period, nor for unexhausted til-
lages and manures, which, as they refer to the last
years of the tenancy, have no reference to its duration.
A lease for a life or lives, being an uncertain term, is
not treated as compensating any improvements, unless
it has been made before the Act, and has been in
existence for 31 years before making the claim. Such
a lease made after the Act, or if made before the Act,
not in existence thirty-one years before making the
claim, will not be a bar to a tenant making claim to
all improvements.*
(67) u Unexhausted." See post, notes on " tillages "
and " manures," sec. 70.
( 68 ) " Quitting voluntarily." By sec. 7, the right of
sale may be offered to a tenant quitting voluntarily or
disturbed.
* Burke says " A tenure of thirty years is evidently no
tenure upon which to build, to plant, to raise enclosures, to
change the nature of the ground, to make any new experi-
ment which might improve agriculture, or do anything more
than what may answer the immediate and momentary calls
of rent to the landlord, and bare subsistence to the tenant
and his family."
Legal and Practical. 109
( 69 ) " Upon such terms as the Court may deem reason- Section iv.
able." As a tenant, under the Ulster custom, is deemed Reasonable
t 11 i c i terms of
to be compensated tor improvements by the sale ot his sale,
tenant-right, so, under this provision, a tenant gene-
rally who, upon reasonable terms, is allowed to sell to
an in-coming tenant the interest in his improvements
(" quitting voluntarily," this is the only interest the
general provisions of the Act give him, if we except
in-coming payments under sec. 7, as to which, on a
tenant " quitting," a similar right of sale is given in
lieu of compensation), is supposed to be compensated
therefor. Reasonable terms, under the Ulster custom are
such as do not confiscate any portion of the tenant-right.
Reasonable terms under this section, are such terms
that the tenant selling could get a price sufficient to
cover all the improvements made by the tenant or his
predecessors in title, to which, and in as full measure
as under the section, he could lay claim. If the land-
lord should affix a rent which would "take into account
the increase in the value of the holding arising from
such improvements" (see sec. 28, sub-sec. 3), the
terms would not be reasonable. Restriction of the
market as by limiting the competition to the tenants
of adjacent holdings, or even to the other tenants of
the estate would be an unreasonable term. The right
of sale implies the free play of competition, of supply
and demand ; and an attempt to limit the number of
buyers would be unreasonable. The landlord, as in
the Ulster custom, may reasonably reserve a right to
approve of the in-coming tenant ; but any objections
he may make must be reasonable. So, the offer of a
lease with unreasonable covenants, as clauses of for-
feiture of various kinds, may not be reasonable. But
the question of rent is fundamental. As to this see
post, note (165).
110
Notes and Comments,
Section IV.
Deductions
from com-
pensation.
Contracts
in restraint
of agricul-
ture.
Acts of hus-
bandry not
deemed
improve-
ments.
Cutting
timber.
Void con-
tract.
( 70 ) " Sums due to the landlord." See notes to sec. 3,
p. 88, 89. These sums will not be due to the landlord if
they have already been deducted from the compensation
under section 3.
( 71 ) " Contract whereby the tenant is prohibited from
making improvements." Contracts in restraint of trade
or labour had been declared by the judges to be illegal,
as contrary to public policy, which favours trade.*
According to Lord Coke, the law equally favours agri-
culture. However this may be, the section now under
notice declares void contracts to prohibit a tenant mak-
ing improvements which do not diminish the general
value of the landlord's estate. It refers to contracts
made before or after the Act. The section generally is
retrospective; and proviso (l,d) of this section, which
incorporates this provision, is expressly retrospective.
Is the contract wholly void, or only void as to the
illegal part of it ? See ante, note (48).
( 72 ) " Nor shall anything in this Act contained author-
ize." This clause is really a restriction on the defini-
tion of improvements. Most, if not all, of the acts
mentioned might in certain cases add to the letting
value of the holding, and be suitable to it ; as the turn-
ing of grass lands into tillage, or even in some cases
the cutting of timber. Improvements executed on
pasture lands are made liable to claims for compensa-
tion under this section (see post, note 146).
( 73 ) u Cut timber . . . registered." This confers
no privilege on the tenant which he did not possess
under the Timber Registry Acts.t
( 74 ) " Contract . . . by which he is deprived of
* Green v. Price, 13 M. & W., 695; Hilton v. Eckersley,
6 E. & B., 47.
t 5 Geo. III., c. 17, and 23 & 24 Geo. III., c. 39.
Legal and Practical. Ill
his right to make any claim." See note (48), sec. 3, Section iv.
p. 95. It refers to contracts made before as well as
after the Act. The section generally is retrospective ;
and -with this provision is incorporated proviso (1, c)
as to improvements made before or after the passing of
the Act in pursuance of a contract entered into for
valuable consideration therefor.
( 75 ) " The time" In estimating whether a tenant Deductions
v ' . , for time of
has received compensation by length of enjoyment, it enjoyment
is necessary to distinguish between compensation for
the natural return of the outlay, and compensation to
recoup the outlay itself ; in other words, to consider
whether he has merely received the natural profits of
farming on his outlay, or something more which would
go to extinguish the claim for the principal. It is in
the latter case that the time becomes of importance.
In the former case, no length of time could compen-
sate the farmer for his original outlay. It is some-
times thoughtlessly considered that a farmer is only
entitled to the interest of his outlay as determined by
the value of money in the money market. But this
consideration only applies to lending and borrowing.
No one in trade or agriculture would be recompensed Difference
by a return that only paid interest ; he expects some- profit and
thing more what is called in political economy,
profits. " The rate of profit greatly exceeds the rate of
interest. The surplus is partly compensation for risk.
For this he must be compensated, otherwise he will
not incur it. He must likewise be remunerated for
the devotion of his time and labour. The lowest rate
of profit which can permanently exist is that which is
barely adequate, at the given place and time, to afford
an equivalent for the abstinence, risk, and exertion
implied in the employment of capital."* Interest
* J. S. Mill, Political Economy, b. ii., ch. xv., sees. 1, 2.
112 Notes and Comments,
Section iv. represents the equivalent for abstinence merely. The
natural profits of trade are stated to be 15 to 20 per
cent. The natural profits of agriculture are higher, as
the risk, arising from uncertainty of seasons, is greater.
On the other hand the occupation in the case of large
farms is naturally more agreeable, though it is otherwise
in the case of small farms circumstances which affect
the second and third of the elements of profits. A
farmer's floating capital is turned over only once a year ;
some of it only once in the period of a rotation.
The natural rate of profit in agriculture exceeds con-
siderably the rate of interest, and even the rate of
trade profit.*
In estimating then, compensation by length of enjoy-
ment, we must consider : 1. The actual return on the
outlay. 2. The natural rate of farming profits. In
stances" determining the latter, there must be taken into con-
tKte n of g sideration : (a) The rate of interest; () The risk;
f njfits 8 ( c ) ^e rewar d f exertion. The risk will be varied
by the tenure, the nature of the improvement, and the
locality. The risk was greater in the case of a yearly
tenant, whose rent was liable to be raised at any time,
than the risk of a tenant under lease. The risk under a
disturbing or consolidating landlord, not acknowledging
any sort of tenant-right, was infinitely greater than under
a " live and let-live" landlord. The security of the Land
Act would lessen the risk ; but it is to be remembered
that these considerations only apply in the case of " im-
* " A landlord may receive back all his disbursements in
draining, principal and interest, in a 1 9 years' lease, at 8 per
cent, on the money expended. The tenant is entitled to
receive the 8 per cent., and also 15 per cent, for his personal
trouble in undertaking the draining; because commercial
people generally expect that percentage on their outlays."
Stephens, Manual of Practical Draining, p. 153.
Legal and Practical. 113
provements made before the passing of the Act." The Section iv.
risk of building is greater than that of reclamation (for
the former includes fire-insurance). The risk of recla-
mation turning out successful is greater than that of
drainage. An improvement on land favourably situated
near large towns will involve less danger of repayment
than in a backward district.*
The difference between the natural rate of farming
profits and the actual return on the outlay, is the only
sum available for recouping the original outlay, f
* Mr. E. Curling, agent to the Devon and other estates Long leases
in Ireland, and who had previously been agent of Sir H. i an( i.
Bunbury's estate in Suffolk, said before Mr. Maguire's Com-
mittee, 1865 "If I were a landed proprietor in Ireland,
I should be disposed to grant leases of mountain farms for
61 years." Q. 4,217. Before Lord Clanricarde's Com-
mittee, Mr. Curtin said "In the mountains he should get
at least a 50 years' lease, at the rent of the present actual
value of the land, the expenditure in cultivating it is so
much higher ; I mean in bringing it to a proper state of
cultivation." Q. 1,180-1,182. Before Lord Clanricarde's
Committee, Mr. J. G. MacCarthy mentioned the beneficial
effects produced by giving leases for 60 and 100 years on his
own property and that of others (Evidence, p. 152).
f Mr. S. Moran was asked by the Land Occupation Com- compensat-
missioners " Supposing you had a lease of any given length, ing P enods -
and you were to be remunerated at the end of it for any
permanent improvements proportionate to the length of
these, allowing for wear and tear, how would you provide
that to be arranged ?" He replied " If I built a house,
the wear and tear would be none at all, because the wear
and tear of my capital was going on at the same time. My
capital was in the house, and the interest of my money was
lost, which would stand in the place of wear and tear"
(Evidence, Vol. iii., p. 706). " A tenant sinking money in
improvements of that kind is not like putting money in the '
I
114 Notes and Comments,
Section iv, (76^ a y ne ren t A compensating period without
Reductions re nt fixed is a contradiction in terms. The whole
for rent.
value of the compensating period depends on the rate
at which the land is rented.* If the rent is raised to
the improved value immediately after the improvements
are made, no length of time will be a compensation : if
the rent is raised beyond this, they will be an absolute
loss. Hence the consideration of rent and of the time
of enjoyment must go together. The time of enjoyment
of the benefits of an improvement expires when the
rent is raised so high as to cover the margin between
the natural rate of farming profits and the actual return
on the improvement. The Act treats thirty-one years
in the case of a tenant under lease, and whose rent
consequently could not be raised, as a sufficient com-
pensation for improvements other than permanent
buildings and reclamations. In the case of similar
improvements under a yearly tenancy, and in the case
of buildings and reclamations, there is no indication in
funds and getting an annuity for it ; if he loses his land,
he loses the means of paying the interest, and therefore
he should be paid for his improvements. In the case of
money in the funds, the annuity does not cease except by
the re-possession of the capital ; but in the other case, he
loses his principal and interest where he gives up the land"
(Evidence of John Quin, Esq., ibid., p. 710).
* Thus, Mr. H. S. Thompson, President of the Royal
Agricultural Society of England, after dividing improvements
into remunerative and unremunerative (the latter including
buildings, as to which he suggests the tenant should have a
reduction of rent as an equivalent, or be repaid the existing
value), adds as to drains and other remunerative improve-
ments : " Twenty-one years' occupation without increase of
rent would be a liberal return" (Ireland in 1839 and 1869,
p. 78).
Legal and Practical. 115
the Act itself of what is to be deemed a compensating section iv.
period. In these cases, considerations of natural justice,
such as those advanced in the last note, must guide the
Court.
( 77 ) "Benefits." As allowances made by means of p r benefits.
any settlement, reduction, or remission of rent, or
contribution by the landlord of materials or labour
required for the improvements.
SECTION V. Section v.
(78\ This section reverses the presumption of law with Presumption
v ' % as to im-
reference to improvements. The old maxim, " quid- provements.
quid plantatur solo, solo cedit " (taken from the Roman
law, which, however, added that the maxim applied
subject to compensation) is reversed.* Until the con-
* " The Roman Law appears to have been, that even Roman Law
although the tenant might, in some case3, be bound to keep mentis. 1 6 "
the premises in repair, yet, even in such cases, improvements
going beyond necessary repairs, and new erections, or addi-
tions to the soil, with all improvements honestly effected,
were considered fit subjects for compensation by the owner
of the land, on the termination of the tenancy. And as a
general rule, there is no doubt that not only a tenant, but
any one who bond fide erected buildings or made improve-
ments on the land of another person, which certainly included
the case of a tenant, was entitled to compensation from the
owner of the land. Not only so, but the owner who should
dispute this right of compensation, and seek to retain the
improvements without paying for them, was deemed fraudu-
lent, and made subject to an action." Finlason's Tenures of
Land, p. 31. See Just. Inst. : " Si quis in alieno solo ex sud
materia domum adificaverit, illius fit domus, cujus et solum est.
Certe Mud constat, si, in possessione constituto cedificatore, soli
dominus petat, domum suam esse, nee solvat pretium materia; et
mer cedes fabrorum posse eumper exceptionem doli mali repeUi;
116 Notes and Comments,
Section v. trary is proved, the improvements will be presumed to
have been made by the tenant. A presumption of law-
should be based on the usual and normal, not on the
unusual and abnormal state of facts. And the usual
state of things in Ireland, admitted on all hands, is
that the tenant makes the improvements.*
The general presumption of this section is borrowed
from the Ulster custom ; and, consequently, the section
does not apply in the case of an Ulster or other cus-
tomary tenant, seeking compensation under the custom
or usage. But where such tenants are not entitled to
the custom or usage, as where their customary rights
have been purchased or acquired by the landlord, they
utique si bonce Jidei possesor fuerit, qui oedificavW'' (lib. ii., tit.
1, sec. 30). A bond fide occupant includes a tenant. See also
Cod. Just., lib. iii., tit. 32, ss. 5, 1 1 ; and tit. 33, ss. 2, 7,
quoted in Finlason's Tenures. Mr. Finlason adds " When
a distinguished statesman declared landlords felonious who
robbed the tenants of the value of their improvements, he
had high authority." Ibid., p. 4.
im rove- * ^ he Land Occupation Commissioners' Report says :
ments " It is admitted on all hands that, according to the general
usually made . . , , , , , . . ..
by the practice in Ireland, the landlord neither builds dwelling-
houses nor farm offices, nor puts fences, gates, &c, in good
order before he lets his land to a tenant. The cases where
a landlord does any of these things are the exceptions. In
most cases, whatever is done in the way of building or
fencing is done by the tenant ; and in the ordinary language
of the country, dwelling-houses, farm buildings, and even
the making of fences, are described by the general word
'improvement,' which is thus employed to denote the neces-
sary adjuncts to a farm, without which, in England or Scot-
land, no tenant would be found to rent it." See also Reports
of Poor Law Inspectors on Landlord and Tenant, pp. 8-12,
20, 33, 35, 50, 54, 60, 62, 67, 72, 84, 87, 91, 115, 133.
Legal and Practical. 117
become subject to the provisions of this section. The Section v.
exceptions in the section indicate the principle which Exceptions,
underlies it, viz., that apart from the fact that improve-
ments are usually made by the tenants, the facility of
proof lies with the landlord.* The exceptions are
mostly of cases where the difficulty of proof would be
greater in the case of the landlord than in the case of
the tenant ; and they all refer to improvements made
before the passing of the Act. There are, however,
no such exceptions to the presumption under the
Ulster custom. The exceptions were added in the
House of Lords.
( 79 ) " Predecessors in title." See sec. 11.
( 80 ) " Except in the following cases." In cases falling Exceptions
within the exceptions, no presumption exists : the improve-
... , ii- ments before
party claiming must prove that he made the improve- the Act.
ments. Note that the exceptions refer only to improve-
ments made before the passing of the Act.
( 81 ) " Improvements." See definition, sec. 70.
( 82 ) " Actual sale." The tenant must show by evi- Pri r t0 sale
v ' M J # to landlord.
dence that he made the improvements when he claims
compensation for improvements made prior to a bond
fide sale to the landlord against whom the claim is
made, or to those through whom he derives title.
(83) Was tenant under a lease." That is, a lease Under a
lease.
* Mr. Geo. Campbell says " In the great majority of
cases, the buildings, &c, called improvements, were really
put up by the tenant, or those from whom he derives ; and
the landlord's improvements being, as a rule, recent in date
and substantial in character, can be much more easily
proved. When the landlord has contributed to what the
tenant has done, he has almost always done so in money,
which his accounts will show, whereas the tenant can show
no account of his labour."
118 Notes and Comments,
Section v. made before the Act. This, like the other exceptions,
refers only to improvements made before the Act, and
apparently such improvements as have been made
during the term of the lease,
years before ( 84 ) " Twenty years." The only improvements made
Act - twenty years before the passing of the Act, for which
a tenant can claim, are permanent buildings and
reclamation of waste land. For other improvements
made before the Act, the claim cannot extend beyond
twenty years before the making of the claim.
tenant^ ( 85 ) " Valued ...<*.. more than 100."
ioo ed at The presumption does not exist in the case of tenants
valued at more than 100, claiming compensation for
improvements made before the passing of the Act.
( 86 ) Such improvements." That is, improvements made
before the passing of the Act.
SECTION VI.
Section vi. (87) i n the case of all sorts of improvements made
Permissive a f ter the Act, the claim is unlimited retrospectively ;
registration * * '
of improve- SO) j n the case of buildings erected or reclamation
made before the Act; and for other improvements
made before the Act, the claim has twenty years'
retrospection. As the evidence in the interval may
be lost or become obscure, this section, which was
added by the House of Lords, provides that either
landlord or tenant may register improvements made,
before or after the passing of the Act, by himself
or his predecessors in title (sec. 11). The schedule
which either may desire to file, if disputed by the
other, will be settled in the Civil Bill Court, and will
then, in its original form or as amended on dispute,
or if undisputed, in its original form, be filed in the
Legal and Practical. 119
Landed Estates' Court, and will be prima facie evidence Section vi.
that the improvements were made as therein men-
tioned. Though only primd facie, it will be very
strong evidence; and the omission by tenant or land-
lord to dispute a claim at the time of filing the schedule
will furnish strong observations against any attempt to
disprove it, perhaps long afterwards, when witnesses
who could have spoken to the facts have died in the
meantime. It will, therefore, be prudent to dispute
every disputable claim at the time of filing the
schedule.
(88\ Prescribed time" Two months before appli- Service of
* notice of
cation made to the Landed Estates' Court to file the schedule.
schedule of improvements. See R. 16 (P. I.).
( 89 ) " Notice." See, as to proof of service of notices,
R. 21 (P. 1).
( 90 ) " Prescribed time and in the prescribed manner." 9 f notice of
v ' * . dispute.
Within one month after receipt of notice of intention
to register, the opposite party may serve notice of
dispute, specifying particulars disputed ; and there-
upon a dispute will arise, to be determined like other
disputes under the Act. See R. 17-19 (P. L).
SECTION VII.
( 91 ) In districts where the Ulster custom, or where Section vn.
beyond Ulster an usage in all essential particulars compensa^
, ,. . , . . - . , tion forin-
resembling it, does not exist, an usage of paying for coming
the good-will, by many confounded with the Ulster
custom, is often to be found ; and, not unfrequently,
occasional transactions of the same sort, not sufficient
to constitute an usage. Payments of this sort made by
an in-coming to an out-going tenant, as well as pay-
ments made to the landlord in the nature of a fine,
are dealt with in this section. The claim under it
120 Notes and Comments,
Sectionvw. arises "on quitting," that is, when a tenant is leaving
voluntarily, or when he is disturbed. This section,
the compensation under which answers to the good-
will element of the Ulster custom, cannot be claimed
simultaneously with section 3, which also is borrowed
from the custom. A tenant who had made in-coming
payments, if not disturbed, would without this section
receive no compensation therefor, as he could not claim
under sec. 3, and his claim under sec. 4 might include
none or only a small part of the in-coming payment.
This section awards him compensation for such, i.e.,
money or money's worth paid with the landlord's
consent, unless the landlord has given him per-
mission on reasonable terms to get satisfaction from the
in-coming tenant, and he has not availed himself of
such permission. As the third section gave compen-
sation for disturbance (a statutable equivalent for
the payment of good-will), a tenant claiming under
the one section cannot also claim under the other. A
Tenants not tenant claiming under the Ulster custom, or usage
entitled to .,...., , . , , .
claim for in- essentially similar, cannot claim under this section,
ments. for this would be to claim payment for the same
thing twice over. An Ulster tenant exercising the
option is expressly excluded by sec. 1 from claiming
under this section ; but such a tenant, if his tenant-
right has been purchased or acquired by the landlord,
is under no such exclusion. Like a customary tenant
outside Ulster, exercising the option, or a tenant not
under custom, he can claim under this section, if he
does not also claim under section 3.
Deductions. I" giving compensation under this section, any
portion of the in-coming payment which included
compensation for improvements for which he gets
compensation under the 4th section, is to be deducted ;
as also, all sums due to the landlord for rent, taxes,
Legal and Practical. 121
&c. (provided they have not been deducted under a SecUonvn
previous section). After the analogy of the 3rd section,
a lessee of a holding under a lease made before the
passing of the Act is excluded from the benefit of its
provisions, at least so far as regards payments made
during the existence of such lease.
( 92 ) "Predecessors in title." See sec. 11.
( 93 ) "Money's worth." That is, value of any sort, Money's
any equivalent for money, as in cases of exchange of
holdings, forgiving of debt, or (a frequent case) where
the tenant has come in on condition of supporting the
previous tenant, or some infirm relative, for life.
( 94 ) u Implied consent." The consent may be verbal implied
v J ... consent.
or written, express or implied, prior or subsequent to
the transaction. Consent will be implied by conduct
or acquiescence, inducing a reasonable belief of con-
sent,* as where arrears of rent have been paid out of
the in-coming payments, where the name of the in-
coming tenant has been substituted in the agent's books,
or rent received with knowledge of the transaction,
or where the old tenant's name has, during his life,
been kept on the books as security for his support by
the in-coming tenant. When the owner of goods
stood by, and voluntarily allowed another to treat them
as his own, whereby a third person was induced to buy
them bond fide, it was held that he could not recover
them from the vendee. The Court laid down the law
* "If a party has an interest to prevent an act being
done, and acquiesces in it, so as to induce a reasonable belief
that he consents to it, and the position of others is altered by
their giving credit to his sincerity, he has no more right to
challenge the act to their prejudice than he would have had
it been done by his previous license." Per Campbell, C, in
Cairncross v. Levison, 7 Jur. (N.S.), 149.
122
Notes and Comments,
section vil as follows : " A person who negligently or culpably
stands by and allows another to contract on the faith
and understanding of a fact which he can contradict,
cannot afterwards dispute that fact in an action against
the person whom he has himself assisted in deceiving." *
This was carrying the principle farther than in Richard
v. Sears,\ where Lord Denman said, " Where one, by his
words or conduct, wilfully j causes another to believe
in the existence of a certain state of things, and induces
him to act on that belief so as to alter his own position,
the former is precluded from averring against the latter
a different state of things as existing at the same time."
The consent may be that of the agent. See ante, p. 92.
(95) u j* ne i an dlord." Clearly, the landlord who could
give or withhold consent to the transaction, that is, the
landlord of the holding at the time of payment made or
money's worth given ; and, as consent may be given
within a reasonable time afterwards (see ante, p. 91),
a landlord succeeding such landlord who could give or
withhold consent.
( 96 ) " On account of his so coming into his holding"
That is, as payment for good-will, or on devise or gift,
subject to payment of dowers, portions, debts, support
of out-going tenant or others, &c.
Landlord
whose con-
sent is suffl
cient.
Payment on
account of
coming in.
* Per Denman, C.J., in Gregg v. Wells, 10 Ad. and Ell.,
98 ; recognized by Parke, B., in Harrison v. Wright, 1 3 M.
and W., 820. See also Duke of Beaufort v. Neald, 12 CI.
and Fin., 249 ; TrickeUv. Tomlinson, 13 C. B. (N.S.) 663.
f 6 Ad. and Ell., 475.
% " Not ' wilfully,' in a bad sense of the word, not malo
animo, but so far wilfully that the party making the repre-
sentation on which the other acts, means it to be acted on in
that way." Per Crompton, J., in Howard v. Hudson, 2
E. &B. 1.
Legal and Practical. 123
( 9r ) '' Sum so paid" That is, " the money or money's Section vn
worth." See the last proviso of this section, " when
such money or money's worth has been paid."
( 98 ) " Just having regard to the circumstances of the Equities of
case." Among these are circumstances such as those
mentioned in note (96), together with the subsequent
dealings of the landlord with the tenant, as the giving
of a lease, and its terms, and any default or unreasonable
conduct of either party (sec. 18), which may affect the
matter in dispute.
(") " Reasonable." See note (69) on sec. 4, page
109, and note (165) on sec. 18.
( 10 ) " Sums due." See notes (33-38) on sec. 3.
("") " T'his section shall not apply when." These words Leases not
' x * " necessarily
do not absolutely exclude from the operation of the excluded,
section tenants under leases made before the passing of
the Act. If money or money's worth has not been
paid during the existence of such lease, but has been
paid before its existence, such payments are clearly not
excluded. If money or money's worth has been paid
during the existence of such lease, it might be argued
that payments made after the determination of such
lease or before its existence, were excluded. But this
appears a forced aud unreasonable construction. The
meaning evidently is, the section shall not apply in the
case of money or money's worth paid during the exist-
ence of a lease made before the passing of the Act ;
that is, as consideration for the assignment of the
leasehold interest.
SECTION VIII.
( l02 ) The right of a tenant to away-going crops, under Section vm
the previous state of the law, varied in the different
districts of Ireland. The object of the section is to
124 Notes and Comments,
Section viii. render the right uniform. Where the Ulster custom
or analogous usage extends to away-going crops, the
compensation payable for the latter is to be regulated
by the custom or usage, in the case of tenants claiming
under the custom ; in other cases, the tenant is to get
"all" his away-going crops or the value thereof, at the
option of the landlord.
Away-going (io3) u Away-going crops" That is, the crops sown
during the last year of the tenancy, but not ripe until
after the expiration of it.*
in absence (104^ u/ n f ne aosence qf an y agreement or writing to the
ment. contrary." The tenant will not be entitled to the
benefit of the section where there is a specific agree-
ment or writing which makes a different provision in
respect of the away-going crops.
On quitting (105) Q n quitting his holding." That is, leaving
voluntarily, or disturbed by the landlord. It is stated
in Latouche's Furlong that the tenant is not entitled to
the away-going crops if the tenancy is " put an end to
by his own act, either by surrender or by his giving
regular notice to quit."t The only case quoted Thorpe
v. Eyre\ doe3 not support this general proposition.
The facts of the case were : An action between the
owner of land and a party holding by his permission, but
claiming to hold as bailiff and not as tenant, was referred
to an arbitrator. He awarded that the holding was as
tenant, that the tenancy should cease on the delivery of
the award, and that possession of the land should be
delivered up to the owner in one month after. It was
held that the award had not determined the tenancy ;
and that if it had, the tenant would not have been
* Woodf all, Landlord and Tenant, p. 59 1 .
f Law of Landlord and Tenant, p. 654.
X 3 N. & M., 214.
Legal and Practical. 125
entitled to away-going crops, under a custom which Section vin.
gives to the tenant such crops upon a regular expiration
of a Lady-day tenancy. The fact is, as stated by
Taunton, J., that emblements, and away-going crops
stand upon very different ground. Emblements are by
common law; the right to way-going crops depends
upon custom.* Mr. De Moleyns adds to the cases
mentioned in Furlong which exclude the right to way-
going crops, that of a tenancy determined by eject-
ment for breach of condition. The case quoted
Hayling v. Okeyi is not an authority for the statement,
and there are many cases to the contrary. J
(106) u ah hi s away-going crops." Does this mean the
away-going crops as defined by the usage of each
district, or all away-going crops without limitation?
The law as to away-going crops is thus laid down by
Woodfall: " A common usage of the neighbourhood Law of Eng-
is quite sufficient to confer the right, in the absence a *vay-going
of any specific agreement between the parties, or any crop8 '
express words which would exclude the custom where
any agreement does exist ; but the custom of the
country can have no place where the off -going tenant
holds under a lease expressly making a different pro-
vision in respect of the away-going crop ; or where he
continues to hold over, after the expiration of such a
lease, without coming to any fresh agreement with his
landlord by which he must be taken to hold under the
same terms. Where the lease contains no stipulations
as to the mode of quitting, the off-going tenant is
* Ihid., p. 220.
f 8 Exch, 531.
X See Latouche's Furlong, p. 656 ; and Holding v. Pigott,
7 Bing., 474 ; Short v. Atkinson, Hay. & J., 682 ; and
Boraston v. Green, 16 East., 71.
126 Notes and Comments,
Section Yin. entitled to his away-going crop, according to the
custom, even though the terms of holding may be
inconsistent with such a custom. The fact of the
existence of the usage is to be collected not only from
what is usually done in cases of tenancy from year to
year, but from the usual course pursued Avhere tenants
hold under regular leases. The principle applies
equally to the case of a tenancy from year to year
as to a lease for a longer term with respect to the
right to take an away-going crop. Where the out-
going tenant is entitled to take an away-going crop,
he may avail himself of that right whether the farm
revert back into the hands of his landlord or an in-
coming tenant take possession."* The legislation of
the section borrows from the customary law thus laid
down all its principles. It applies to all tenants,
yearly or leasehold. It applies only " in the absence of
any agreement or writing to the contrary ;" and it
arises on quitting the holding. It is not a legalization
of customs, with all their variations and indefiniteness,
but a specific legalization under conditions translated
from the customs, of a right to " all" away-going crops.
Irish usages The Irish usages as to away-going crops are stated in
going a crops. Latouche's Furlong. These usages, he says, "generally
divide the way-going crops of corn into unequal shares,
allotting in Munster and Connaught two-thirds, and in
Leinster seven-eighths, of such crop to the out-going
tenant, and giving the residue to the landlord or in-
coming tenant. The custom in Westmeath entitles the
out-going tenant to seven-eighths of the wheat, two-
thirds of the oats, and the whole of the potato crop."t
* Landlord and Tenant, p. 592.
j - Law of Landlord and Tenant, p. 651.
Legal and Practical. 127
Where, then, the custom allowed the tenant none, or Section vni.
only a portion of his away-going crops, this section Meaning of
entitles the tenant to all, or the value of them, at the
option of the landlord. That it is not the away-going
crops as defined hy the custom of each district is
apparent from the use of the word " all ;" from the
restriction in the first part of the section of custom or
usage dealing with away-going crops to custom or usage
legalized by sections 1 and 2 ; and from the general
policy of the Act. It would be a narrow conception of
the Act giving the tenant in other sections compensa-
tion for improvements, tillages, and manures, remain-
ing to benefit the land, which would, except on
the clearest indication, deny him his away-going crops,
the claim to which drew from Lord Mansfield * words
that were only a repetition of the Scripture precept
" Whatsoever a man soweth, that also shall he reap."
SECTION IX.
( 10 ?) This section is mainly occupied with the defini- Section ix.
tion of what constitutes disturbance of the tenant by act Ejectment
for non-pay-
of the landlord ; and would have been better placed as a ment of rent
or breach of
sub-sec. of sec. o. A tenant not "disturbed is covenant not
. , , . , , . . , disturbance.
entitled to any compensation he can claim under other
sections, but he cannot claim under sec. 3. There
is a divergence in this section from the Ulster custom.
Under the latter, non-payment of rent and breach of
covenant are not made causes of forfeiture, but of
deduction from compensation. The section makes ex- Exceptions,
ceptions of two cases of known hardship in Ireland :
1st. Where arrears of rent, which occurred far
* See Wiglesworth v. Dallison, quoted ante, p. 48.
128
Notes and Comments,
Non-pay-
ment of rent
Breach of
condition.
Sectionix. back, as during the famine, have been kept up by
giving receipts dated back.
2nd. In the case of tenants holding under a rent
not exceeding 15, where purchasers in the Landed
Estates' Court and others, have, before the passing of
the Act, raised the rent to so exorbitant an amount as
practically to confiscate the tenant's improvements.
( 108 ) " Ejectment for non-payment of rent." This, in
the case of a tenancy existing at the time of the passing
of the Act, and continuing to exist without alteration
of rent up to the time of its determination by such
ejectment, will be " disturbance," if the Court thinks
fit, in two cases of peculiar hardship :
1. In the case of arrears beyond the last three years.
2. In the case of tenants valued at 15 and under,
exorbitantly rented.
( 109 ) " Or for breach of any condition against assignment,
sub-letting, bankruptcy, or insolvency." These words
were inserted by the House of Lords, on the motion of
the Duke of Richmond. A tenant so ejected forfeits
the compensation of the 3rd section ; and there are no
exceptions made.
( uo ) " Tenancy existing." See ante, notes 25 and 46.
( U1 ) " The arrear." The tenant will be disturbed,
and be entitled to compensation under sec. 3, if any of
the rent for which the ejectment is brought accrued
due before the three years immediately preceding.
( 112 ) " And if any earlier arrear remained due from the
tenant at the time of commencing the ejectment." These
words are mere surplusage. If the arrear for which
the ejectment is brought did not wholly accrue within
the three previous years, it must have been by reason
of an earlier arrear remaining due from the tenant at
the time of commencing the ejectment unless the
word "earlier" is to be taken to refer not to "the
" Earlier
arrear."
Legal and Practical. 129
three previous years," but to the period included in the Section ix.
claim in the ejectment, four or five years, as the case
might b& a strained construction, and one for which
it would be difficult to find a reason.
( U3 ) "Exorbitant rent." Where rents are very high. Exorbitant
. . . rent.
it is generally because the tenants' improvements have
been confiscated ; and the want of security thus arising
has paralysed the industry which would have executed
other improvements. Where this is the case, and the
tenants' claim under sec. 4 would be small or nil, it is
part of the policy of the Act to give a tenant on
quitting something to carry him to another country, or
enable him to engage in other occupation in his own
country. Hence, tenants of holdings valued at 15
and under, if evicted for non-payment of "exorbitant
rent," will be entitled to the compensation of sec. 3.
See note (28).
As to what is to be deemed an exorbitant rent, see
post, note (165).
( 114 ) '''Notice of surrender." By the Landlord and Notice of
Tenant (Ir.) Act, 1860, sec. 7, the surrender must be
" by deed executed or note in writing, signed by the
tenant or his agent thereto lawfully authorized in
writing."
If a tenant by an instrument in writing agree to
yield up his holding for the purpose of effecting a
specified object which is not carried into execution,
and the tenant retain possession, such conditional
agreement will not operate as a surrender.* Where a
* Couplandv. Maynard, 12 East., 134; Doe d. Gray v.
Stanion, 1 M. & W., 695 ; Doe d. Bishop of Rochester v.
Bridges, 1 B. & Ad., 847-860 ; Weddall v. Capes, 1 M. &
W., 50 ; but see Williams v. Sawyer, 3 Br. & B. 70 ; Por-
menter v. Webber, 8 Taunt. 593.
K
130 Notes and Comments,
Section ix. tenant gave a written notice of his intention to quit at
a time when he believed his tenancy -would expire, but
which was afterwards discovered not to be the time,
it was held not to operate as a surrender.* A written
request by the tenant to his landlord to re-let the pre-
mises to some other person may, when acted on, amount
to a surrender by act and operation of law.t
SECTION X.
Section x. (us) The third clause of the Bill, as it left the
Labourers' Commons, contained words which exempted from the
cottages. r
penalties attending the sub-division of the holding
without the consent of the landlord any tenant who
built labourers' cottages, not exceeding one for every
25 acres of tillage land, but required the tenant first of
all to give notice to his landlord, so that the latter
might, if he thought proper, erect the buildings himself.
The section now under notice was the complement of
this provision enabling the landlord, if he chose, to erect
the proposed labourer's cottage himself, Avithout being
liable to compensation for disturbance. The portion of
the third section above referred to was struck out of the
Bill in the House of Lords. It was represented that the
condition of the labourer was worse under the farmer
than when immediately under the landlord. The
object of this section is to enable landlords desirous of
improving the condition of labourers on their estates,
* Lyon v. Reed, 1 3 M. & W., 285 ; Doe d. Murrell v.
Milward, 3 M. & W., 328 ; Bessell v. Landsberg, 7 Q. B.,
638.
f Nickelh v. Aiherstone, 1 Q. B., 944.
Legal and Practical. 131
to resume possession of a portion of a yearly tenant's Section x.
holding, for the bond fide purpose of erecting thereon
suitable labourers' cottages. Provided the resumption
is reasonable, the landlord will only be liable to make
compensation for the improvements on the land so
resumed, and to allow the tenant a proportionate abate-
ment of rent.
O 16 } "Any landlord." It has been stated that this Ulster land-
v ' J # lord not in-
means landlord in Ulster or elsewhere. Even if this eluded,
be so, an Ulster landlord would, by such resumption,
become liable to compensation for disturbance as well
as for improvements, where it was proved that the
tenant-right to which his estate was subject included
compensation for good-will as well as for improvements.
It would be " unreasonable" in such case that he should
pay for improvements only. See the following words
" shall not, unless the Court shall be of opinion that
the same was unreasonable, be deemed a disturbance."
But it is conceived that the section is not intended to
apply to the region of custom. See note (122) on this
section.
( 117 ) " Six montJis." Calendar months.*
ni8\ "Notice in writing." This would appear to be a Notice in
. . . . , , , writing.
notice to quit, requiring a stamp, and subject to the
regulations of sec. 58. The Rules (P. I.) do not
provide for any other form of notice.
( U9 ) " Individual holding." Holding is defined in individual
sec. 71 to include all land agricultural or pastoral, or
partly the one and partly the other, held by the same
tenant of the same landlord, for the same term and
contract of tenancy. If a tenant holds two farms from
the same landlord, under different terms or contracts
* 13 Vic, c. 21, sec. 4.
132
Notes and Comments,
Cases of un-
reasonable
resumption.
Section x. of tenancy, the landlord may not resume possession of
more than one twenty-fifth of each.
ofTolTJZ. ( 12 ) " Bond fide purpose." The bond fides will be
indicated by the necessity for the cottages. If labourers'
cottages are insufficient in number, or not of a reason-
ably proper description, the bond fides will be presumed,
but may be rebutted by words or conduct on the part
of the landlord pointing to the contrary.
( 121 ) " Unreasonable." As, if the cottages proposed
to be erected are not required for the accommodation of
labourers employed on the holding ; or if the object is
to erect better cottages than those already in existence,
and the tenant is willing to make proper additions and
repairs to the existing cottages ; or if the part proposed
to be resumed would be purposely inconvenient to the
tenant, or unnecessarily destructive of the benefits of
occupation. By 23 & 24 Vic, c. 19, s. 1, enabling
loans to be made out of money granted for the
improvement of landed property in Ireland, for the
erection of labourers' dwellings, the Commissioners of
Public Works are directed not to sanction " the erec-
tion of any greater number of dwellings by means of such
loan than they shall consider sufficient for the accom-
modation of the labourers required for the proper
cultivation of the estate or of the portion of such estate
on which such dwellings are to be erected."
( 122 ) " Such resumption of land shall not ... be
deemed a disturbance." These words appear to indicate
that this section is not meant to apply to tenants under
the Ulster tenant-right or analogous custom. The
words that follow confirm this view " claim for com-
pensation except in respect of improvements" words
properly applicable to the general body of tenantry,
not to customary tenants, whose claim is never analyzed
into its elements in the Act. This view is in accordance
Inapplica-
bility to
customary
tenants.
Legal and Practical. 133
with the policy of the Act, which is to legalize the Section x.
tenant-right as it exists. The resumption of land by
the landlord for any purpose, without payment of the
full tenant-right claim, is a breach of the Ulster custom.
See ante, p. 41.
(123^ Proportionate to the annual value."-~-The amount Amount of
v ' -* abatement
of rent to be abated is determined not by the tenement of rent-
valuation, but by the decrease in the value of the
holding for the purpose for which it was let, whether
agricultural or pastoral, caused by such resumption.
SECTION XI. SectionXl.
( m ) This section defines what are the " predecessors Meaning and
in title," through whom a tenant may claim the benefits of section.
of the Act, or for whose default his claim is liable to
set-off. He can claim compensation for improvements
or in-coming payments made by a preceding tenant, if
he has given him money or money's worth, or has
derived title from him by assignment or operation of
law ; irrespective of whether the claimant entered into
a new contract of tenancy with the landlord. A new
contract of tenancy will only bar a tenant's claim
through a predecessor in the holding, when no money
or money's worth was received by the latter from the
claimant, and there has been no derivation of title by
assignment or operation of law. The section has no
application to tenants claiming under custom.
( 125 ) " Derived his holding." Clearly equivalent to
" derived his title to his holding." See later words in
section, " where a succession of tenants have derived
title each from the other ;" and title in margin.
( 126 ) " Money's ivorth." See ante, note 93.
( 127 ) "Assignment, or operation of law." The term Devise and
"assignment" would seem to include devise and bequest, eluded.
134
Notes and Comments,
Section xi. jf the language of sec. 13 is considered, the proviso at
the end of which excepts certain cases of bequest from
its provisions as to assignment. It clearly includes all
forms of transfer by act inter vivos. Under the term
' operation of law," are included all derivations of
interest in consequence of the property being taken
under writs of execution, by bankruptcy or insolvency,
marriage, or death. As a term, specifically bequeathed,
in the first instance vests in the executor,* derivation by
bequest may be said to be a taking by operation of
law ; so that there can be no doubt that under one
or other of the terms employed in this section, devise
and bequest are included. The intention is sufficiently
obvious.
Section XII.
Customary
tenants con-
tracting
themselves
out of the
Act.
Holding
partly cus-
tomary and
partly non-
customary.
SECTION XII.
( I28 ) " Not proved to be subject to the Ulster tenant-right
custom or usage." A customary tenant claiming under
the custom does not come under the provisions of this
section. A customary tenant exercising the option of
claiming under the general provisions of the Act, is
prima facie under the section; but by proving that the
holding is subject to, though he does not claim under, a
custom, it would seem, he may escape its provisions.
( 129 ) " Aggregate of whose holdings." These words were
inserted by the House of Lords. They create a diffi-
culty as to whether a tenant of several holdings, valued
in the aggregate at 50, one of which is not subject to
a custom or usage, may, under this section, contract
himself out of the Act as to the remaining holdings
which are so subject. It is conceived that he cannot.
The aggregate determines whether he comes within
* Woodfall, p. 237; Williams, Law of Exrs., p. 615.
Legal and Practical. 135
the section generally ; but the character of each holding Section xn.
must determine whether in claiming as to it his claim
can be defeated by contract. In other words, such a
tenant is within the section as to his non-customary,
but not as to his customary holdings.
A doubt has also been suggested whether "the
holdings" must not be held " under the same landlord"
(see sec. 71); but as the definition is of the singular,
not the plural term, it would appear not to be doubtful
that the holdings, provided they reach the 501imit,
may be held under different landlords, contracts, or
terms of tenancy.
SECTION XIII. ^ XIIL
( 130 ) This and the following section, which were Assignment
added by the House of Lords, being restrictive of the cases restric-
compensation for disturbance, would have been better pensation. "
placed in immediate connexion with proviso (2) of sec.
3, which deals with sub-dividing, sub-letting, and
letting in con-acre. The present section deals with
assignment. It only applies to tenancies from year to
year, existing at the time of the passing of the Act ;
whereas proviso (2) of sec. 3 deals with all tenants as
defined by the Act. The consent of the landlord
required by the latter must be in writing ; this qualifi-
cation is omitted in the present section. Tenants
under leases, and future yearly tenants, are not within
the section ; nor are tenants under custom or usage,
except they waive their claim thereunder, and claim
under the general provisions of the Act.
(131) Tenancy from year to year existing." See notes
25 and 46, sec. 3.
( 132 ) "Assigned." As distinguished from sub-divi- Assignment
sion, provided for in sec. 3, assignment must mean a
136 Notes and Comments,
Section xiu. parting with the entire of his holding by the tenant ;
as distinguished from sub-letting, a parting with the
entire of his interest. By 23 & 24 Vic., c. 154, s. 9,
" the estate or interest of any tenant in any lands, under
any lease or contract of tenancy shall be assigned,
granted, or transmitted by deed executed, or instru-
ment in writing signed by the party assigning or
granting the same, or his agent thereto lawfully
authorized in writing, or by devise, bequest, or act and
operation of law, and not otherwise." Mr. Latouche,
in his edition of Furlong, expresses an opinion that
tenancies from year to year created by parol do not,
and that such tenancies created by lease or contract
in writing do fall within these provisions. But the
language of the 4th section, on which this opinion
is founded, is very doubtful. A lease is defined
in the Act of 1860 as any instrument in writing,
whether under seal or not, containing a contract of
tenancy in respect of any lands, in consideration of a
rent or return ; but no definition is given of contract
of tenancy.
An assignment "must pass the legal estate of the
assignor ; for a transfer of a new equitable interest will
not make a man liable as an assignee. The delivery and
depositing of a lease as a security for money, without
any written assignment, passes no interest at law,
although it may create a right which may be enforced
in equity."* An equitable interest thus created is not
an assignment within the section.
Consent of (133) Without the consent." See note (40) on sec. 3.
landlord to v ' , . . .
assignment. The consent in this section need not be in writing.
And, as in sec. 3, it may be given after the assignment,
and may be that of an agent. As this section works a
* Woodfall, Landlord and Tenant, p. 207.
Legal and Practical. 137
forfeiture of the compensation for disturbance of sec. Secttonxm.
3, it is to be construed strictly. See ante, p. 91.
( 134 ) " And the landlord does not accept." This section Acceptance
only applies where consent has not been given to the
assignment, and the landlord does not accept the
assignee as his tenant, and then only in the cases
defined in the section. Acceptance may be express or
implied from the words or conduct of the landlord.
( 135 ) "Liable to eviction." A tenant is liable to evic- Liability to
tion when a year's rent is in arrear and due, over and non-payment
above all just and fair allowances.*
(136) A nc i such arre ar is due by the tenant." In the
third section it is " sums due to the landlord from the
tenant or his predecessors in title in respect of rent."
SECTION XIV. Section XIV.
(W) The uncontrolled power of eviction which the Eviction for
landlord heretofore possessed enabled him to restrain his unnecessary
yearly tenants from exercising certain rights, and from refusal of
refusing permission to himself to enter for the purpose landlord.
of exercising certain rights, as effectually as he could
have done by reservations in leases. The third section
of the Act imposes a penalty on the exercise of this
power. It became necessary to provide against the
yearly, tenant's persistent exercise of those rights, or
his unreasonable refusal to allow the landlord to enter
for the purposes specified. The section, like the last, Applicability
only applies to yearly tenants existing at the time of
the passing of the Act, not to future yearly tenants or
tenants under leases. Nor does it apply to tenants
under custom or usage, unless waiving their claim
* 23 & 24 Vic, c. 154, ss. 52, 54, 58.
138 Notes and Comments,
Section xiv. thereunder, they claim under the general provisions
of the Act.
(138) u Existing." See ante, notes 25 and 46.
Proofs as to ( 139 ) " By reason of the persistent exercise." The land-
exercise of
unnecessary lord can escape the payment of compensation for dis-
turbance by showing 1 . That the tenant persistently
exercised any right not necessary to the due cultivation
of the holding ; 2. That he was debarred from such
right by express or implied agreement; and, 3. That
he was actually evicted therefor. The tenant can claim
the compensation if he proves the negative of any one
of these propositions.
sud" rights ( 14 ) " Might not necessary to the due cultivation" Such
as those mentioned at the end of the section mining,
quarrying, taking sand, cutting or taking timber or
turf, making roads. The exercise of these rights by
the tenant may be necessary to enable him to duly cul-
tivate his holding. If so, and he is evicted therefor, he
will not be deprived of the compensation under sec. 3.
implied ( ul ) "Implied agreement." Implied agreements are
such as the law implies from the nature of the transac-
tion, although not expressed in words. They gene-
rally arise from leases, but may also arise on a demise
At Common by parol.* From the mere fact of the tenancy of a
farm, whether under a written or parol agreement, the
law implies a promise on the part of the tenant to
cultivate it in a husbandlike manner, and according to
the custom of the country where the same is situate.f
By Act of By the Landlord and Tenant Act, 1860, a tenant
under a lease or demise made, on or after 1 st January,
Quarries. 1861, may work quarries or beds of stone, sand, &c,
* Woodfall, Landlord and Tenant, p. 116.
f Bullen and Leake, Pleadings, p. 204, and cases cited,
ante, p. 89.
Legal and Practical. 139
" so far a3 necessary or useful for the purposes of Section xiv.
agriculture or good husbandry, and the lawful erection
or repair of any necessary buildings, but not for any
purpose of trade or manufacture, or for profit or sale"*
unless such right is expressly granted in writing. So,
in the case of a similar lease or demise of lands, u made
on or after 1st January, 1861," containing " turf bog Turf.
unreclaimed and unprofitable for agriculture, or where
any lease shall be so made giving a right of turbary on
the premises, or conferring a right of common of
turbary on premises not comprised in the lease," the
tenant may, " unless in the said lease it is specially
provided to the contrary, cut, use, and enjoy the said
turf bog, so far as shall be necessary for the bond fide
use on the demised premises of the tenant and his
lawful sub-tenants, but not for any purpose of trade
or manufacture, or for profit or sale," unless such right
is expressly granted in writing.! These two sections
apply to written yearly tenancies, and possibly to parol ;
but this is extremely doubtful. A similar doubt arises
on the 30th section, where the words are " tenant under Buming'sou.
any lease or other contract of tenancy," and which
enacts that no such " tenant shall burn, or permit to be
burned, the soil or surface of the land, without the
previous consent in writing of the landlord under a
penalty." So by sec. 31, no tenant, "under a lease or
other contract of tenancy," made on or after 1st Jan.,
1861, shall cut or lop trees or wood unless authorized Treesand
wood.
thereto by lease or in writing. A tenant " under any
lease made after 1st January, 1861, may work and
dig for mines and minerals in mines already opened," ^e*a^s d
* 23 & 24 Vic, c. 154, s. 28.
t Ibid., sec. 29.
140 Notes and Comments,
Section xiv. unless otherwise provided in the lease.* But a tenant
hy "lease or contract," made after 1st January, 1861,
may not open or dig for unopened mines or minerals,
or remove the soil, or surface, or sub-soil, or permit or
commit any other manner of waste thereon, unless
the said lands shall have been, in express terms, leased
for the purpose, or with the permission of being so
used and enjoyed.f
Refusal of ( 142 ) " Unreasonable refusal." A tenant will not
landlord. obtain compensation under sec. 3, where the landlord
proves 1. That the tenant unreasonably refused him
right of entry for any of the purposes specified, he
making reasonable amends and satisfaction for any
injury to be done thereby; and 2. That he is evicted
therefor. The tenant can claim such compensation by
proving the negative of either of these propositions or
that the landlord persisted in evicting him after his
refusal has been withdrawn.
SectionXV. SECTION XV.
Section not 43 ) " No compensation shall be payable." This section
customary appears, from its wording, not intended to apply to
tenants claiming under the Ulster custom or analogous
usages. This is indicated by the reference in the pro-
viso at the end of sub-sec. (1) to claims under sees.
4, 5, and 7, from the provisions of which tenants
entitled under sees. 1 and 2 are excluded. It would,
perhaps, be going too far to say that the same thing is
indicated by the word " compensation " (a term, how-
ever, not applied in sees. 1 and 2 to a customary
tenant's claim, and in sec. 16, used in contradistinction
to " claim in respect of a right"), as by the Rules (see
* Ibid., sec. 27. f Ibid., sec. 26.
Legal and Practical. 141
Form IV., P. I.) a customary tenant may claim a Section xv
right or compensation.
The question is not one of much practical importance,
as the Ulster tenant-right does not generally attach to
the holdings set out in sub-sees. 2, 3, 4, 5 ; and in the
case of demesne lands, " townparks," and the pasture
lands of sub-sec. (1), the tenant-right is not the full
tenant-right of the ordinary agricultural holdings, but
a tenant-right only covering compensation for improve-
ments. In the case of demesne lands, the improve-
ments suitable to such a holding would be of a very
limited character. The tenant-right is equally limited.
(H4) Demesne land" Lands of a manor actually or Definition of
potentially in the occupation of the lord of the manor, lands.
Lord Lyndhurst, delivering the judgment of the Court
of Exchequer, said* " Upon the authorities t we think
we are fully warranted in saying that, although the
word 'demesne' may in some cases be applied to any
fee-simple lands a man holds, yet it is more correct and
usual to apply it to the lands of a manor which the lord
of that manor either actually has or potentially may
have in propriis manibus." In this country, where
absenteeism is so prevalent, many old demesnes have
virtually ceased to be such. If the conditions or
* Att.-Gen. v. Parsons, 2 Cr. and Jer., 279.
f Co. Litt., 17a; Coke, Complete Copyholder, sees. 2, 12,
14, whose conclusion is that "those lands alone can properly
be of the lord's demesne, which the lord reserveth in his own
hands for the maintenance of his own board and table, be it
his waste ground, his arable ground, his pasture ground ;"
and Blackst, who describes demesnes as " lands which the
lord of a manor kept in his own hands for the use of his
family ; and they were called terrae dominicales, or demesne
lands, being occupied by the lord, or dominus manerii, and
his servants."
142
Notes and Comments,
lands ceas-
ing to be
such.
Definition of
townparks.
Se lion xv. circumstances of the holding indicate an intention of
Old demesne treating the demesne as an ordinary holding, as if it
has not been used as demesne for a reasonable length
of time, or if ordinary farm buildings have been erected
with the consent, express or implied, of the landlord,
indicative of a permanent change of the demesne into
ordinary tenancies, the Court will not treat the holding
as coming within the exception of demesne lands.
(145) "Townparks." Townparks, to come within the
exception, must (1) be ordinarily termed such ; (2)
they must adjoin or be near to any city or town ;
(3) they must bear an increased value as accommodation
land; and (4) they must be in the occupation of a
person living in the town or its suburbs. Even then
they are entitled to compensation under sees. 4 and 7.
Tenants of town-parks in any of these four par-
ticulars not answering this description, provided they
are holdings as defined by sec. 71, are entitled to
compensation under sees. 3 (or 7) and 4.
(H6) "Pasture." Tenants of lands wholly or mainly
used for pasture, of not less than 50 annual value, or
of pasture lands of smaller value on which the tenant
does not actually reside, unless the holding adjoins or
is ordinarily used with the holding on which such
tenant actually resides, are not entitled to compen-
sation under section 3. As regards compensation under
sees. 4 and 7, tenants of pasture lands are in the same
position as agricultural tenants.
(147) "Any such holding." That is, demesne land,
" town-parks," or pasture lands, as stated. It has been
suggested that the words only apply to the last-men-
tioned form of holding, i.e., pasture lands the tenant of
which does not reside on the same, &c. But this is
too narrow an interpretation, as there is no reason in
the nature of the holdings for such a distinction. It
Pasture
lands.
"Any such
holding."
Legal and Practical. 143
might also be suggested that demesne land, not being Section xv.
termed a holding, does not come within the proviso
a construction equally narrow, and without reason.
Unless demesne land were a holding, it would not
come within the scope of the Act. The frame of the
section shows that the intention was not to exclude
demesne land or townparks from all compensation ;
else they would have been placed in separate sub-
sections, like (2), (3), (4), (5), and not have been mixed
up with pasture-lands, which clearly come under sections
4 and 7. In the Bill, as introduced, the sentence ended
with " demesne lands." An interpreter can draw no in-
ference from this, as the additional words may have been
moved, accepted, or retained, because they contained
a proviso qualifying every member of the clause.
( 148 ) "Agistment" Taking in the cattle of others to Agistment.
pasture.
(149) Cottaqe allotment." Not a familiar term in Cottage
, ; ,, . allotment.
Ireland. By an English Act, 8 & 9 Vic, c. 118, the
Inclosure Commissioners may allot a portion of inclosed
common, in allotments not exceeding one quarter of
an acre each, to poor householders. Here the term,
as distinguished from a labourer's holding, may be
understood to mean a portion of land with a cottage
built and kept in repair by the landlord, in analogy
to the requirements of a cottier tenement, 23 & 24
Vic, c 154, sec. 81.
SECTION XVI. SectionXVl.
( 15 ) " In respect of any right." These words refer Claim in
to claims under sees. 1 or 2 for the tenant-right ; and any right.
are contrasted with the words, " payment of any sum
due by way of compensation," applicable to claims
under the general provisions of the Act. This portion
144
Notes and Comments,
Claim only
arises on
quitting.
Section xvi. of the section was amended in Committee of the Com-
mons, to bring it into harmony with the amendment
made on sec. 1. (See ante, p. 57.) It stood origin-
ally "Every tenant entitled to compensation under
this Act, and about to quit his holding, may make a
requisition on his landlord for payment of sums due to
him by way of compensation." See Form 4 (P. I.).
( 151 ) "About to quit." The claim only arises when
the tenant is about to quit, whether voluntarily or
disturbed by act of the landlord. In either case, the
tenant-right value is the same. In the case of tenants
not claiming under the Ulster tenant-right or analogous
usage, the claim for compensation under sec. 3 only
arises in the event of disturbance ; and the claim for
improvements, and in-coming payments, though in no
wise dependent upon disturbance, can only be realized
by the tenant quitting.
(152) u p rescr ibed time." See R. 4, 5, and 12 (P. I.).
R. 6 (P. I.) directs the delivery of a copy of the notice
of claim to the Clerk of the Peace, and its record by
him. R. 13 (P. I.) directs the notice of claim to be
lodged with the Clerk of the Peace for hearing.
(153) u Serve notice." See R. 7, 8, 9, 11, and 12 (P. I.).
(154) " Prescribed form." See R. 3, 6, and 11 ; and
Forms 1, 2, 3, 4 (R., P.I.). These forms are not to be
literally used, but should be modified so as to suit the
circumstances of the case.
(155) "Subject to such amendment as the Couii may
allow." These words reserve to the Court the power
of amending a claim not technically correct, or not in
accordance with the facts, so as to prevent delay or
miscarriage of justice. See R. 20 (P. I.), which gives
to the Court all the powers of amendment in the Civil
Bill Courts with respect to civil bills and civil bill
ejectments.
Time and
form pre-
scribed for
claim.
Powers of
amendment.
Legal and Practical. 145
SECTION XVII. Section
XVII.
(156) ''Prescribed time" Within 21 days from the Time an< i
' manner of
service on him of the notice of claim. See R. 10 and serving
notice of
12 (P. I.). dispute.
(157) m p rescr ib e d manner." See R. 10, 11; F. 5, 6
(R.P. L).
0) " Servicer See R. 11, 12, 21 (P. L).
(159) u j>he Court.'' Here, as elsewhere, in Part I.,
the Court is the Civil Bill Court, or the Court of
Arbitration, constituted as stated hereafter, sec. 25
and Schedule.
(160) u Within the time and in the manner prescribed.'"' Settlement
x ' t * by agree-
At any time before the dispute has been decided by the ment
Chairman, the parties may, by agreement in writing,
signed by them or their agents duly authorized, settle
the dispute, and such agreement may be recorded by
the Clerk of the Peace. See R. 14 (P. I.).
SECTION XVIII. gg-
( 161 ) "0 the hearing of any dispute." By R. 20 SjjfiS. -
(P. I.), the practice, forms, and rules of the Civil Bill Court focor-
Court shall, so far as not inconsistent with the rules or
with the Act, be adopted mutatis mutandis.
(162) Default or unreasonable conduct." The enlight- "Default or
,..-', i. i i unreason-
ened jurisprudence of modern times tends to sweep able con-
away all technical restrictions on the reception of any
evidence calculated to throw light on the matter in dis-
pute. By this section the Court, whether Civil Bill
Court or Court of Arbitration, is to have regard to
every legal or moral consideration which can affect the
issue between the parties. It is not, however, to extend
L
146 Notes and Comments,
Section its cognizance to default of either party not affecting
the matter in dispute. For instance, a tenant's moral
character is not to be adjudicated upon, because the
landlord evicts him for suspicions entertained about
it. On the other hand, it might well be considered
" unreasonable conduct " of a landlord to assume the
functions of a criminal or ecclesiastical judge, and to
punish the tenant after investigation, or perhaps on
suspicion, by ejectment or increase of rent for criminal
conduct or moral delinquency. A case intended to be
provided against by these words was that of unreason-
able refusal to reduce rent or forgive arrears of long
standing. Rents were very generally reduced at the
time of the famine, and arrears then contracted for-
given. In taking a back account between compensation
and arrears, the Court has power to decide the case so
as to guard against the compensation granted being
defeated by unreasonable conduct of this sort on the
part of the landlord.
Rent and (163) u j) ue fa the tenant to the landlord under sections
taxes. v ' a
three, four, and seven." In respect of rent and taxes.
See ante, p. 88, 89.
Damages for ( 164 ) " Unliquidated or liquidated damages under said
tion. sections." That is, deductions in respect of deteriora-
tion. See ante, p. 88. Under the ordinary principles
of law, unliquidated damages do not form the subject
of set-off ; hence the special legislation of the section.
Where deterioration, of the kind contemplated by
the Act, has taken place, and where in the instrument
a particular sum of money is inserted, not as a penalty,
but as liquidated damages, this would appear to be
the sum actually to be deducted. The difference
Penalty and between a penalty and liquidated damages becomes of
liquidated . .... . , , , ,
damages. importance in this view of the section. " Ihe law on
the question of penalty or liquidated damages may now
Legal and Practical. 147
be considered, after a great number of decisions, not per- Section
. i XVIII.
haps all of them strictly reconcilable with each other,
to be, however, at length satisfy jtorily settled ; and the
hinge on which the decision in every particular case
turns, is the intention of the parties, to be collected from
the language they have used. The mere use of the
term "liquidated damages" does not determine that
intention ; but, like any other question of construction,
it is to be determined by the nature of the provisions
and the language of the whole instrument. One cir-
cumstance, however, is of great importance towards
arriving at a conclusion ; if the instrument contains
many stipulations of varying importance, or relating to
objects of small value calculable in money, there is the
strongest ground for supposing that a stipulation,
applying generally to a breach of all or any of them,
was intended to be a penalty, and not in the way of
liquidated damages."*
A Court of Equity will frequently relieve against a Liquidated
penalty or forfeiture ; but will not restrain an action equity.
to recover liquidated damages. As a matter of fact,
and apart from questions of law, liquidated damages
which are plainly excessive are really penalties,! and
* Woodfall, Landlord and Tenant, p. 355 ; Dimich v.
Corlett, 12 Moo. P.C.C. 199; Latouche's Furlong, Vol. i.,
p. 539.
t See the remarks of Judge Story : " Where a penalty penalties
or forfeiture is designed merely as a security to enforce the f^^" r '-
principal obligation, it is as much against conscience to allow equity,
anj' party to pervert it to a different and oppressive purpose
as it would be to allow him to substitute another for the
principal obligation. The whole system of Equity Juris-
prudence proceeds upon the ground that a party having a
legal right shall not be permitted to avail himself of it for the
148
Notts and Comments,
Section
XVIII.
Just and
reasonable
terms of
occupation.
Economic
rents.
it may be questioned whether the insertion of such in
a lease is not included in the considerations of conduct
which the Court is authorized to entertain. Certainly-
such a view is within the spirit of the section, which is
to give the Court the fullest jurisdiction so as to do
justice between the parties as between man and man.
If this view is accepted, the difference between penalties
and liquidated damages ceases to have any importance.
^165) "Just and reasonable term*." See observations
as to reasonable terms of sale, ante, note (69). The
amount of rent will necessarily have to be considered.
What then is to be the test of a reasonable rent ? The
Act gives no direct assistance in the determination of
this difficult question. It is designedly left for the
Court to settle as it best may. But the interpreters of
the Act are not left without much indirect assistance.
The economic principles which govern rent are
clearly inapplicable. Political economists recognize
two forms of rent :
(1) Rent as determined by the competition of agri-
cultural capitals for land.*
Mr. Mill on
competition
rents.
purpose of injustice, or fraud or oppression, or harsh and
vindictive injury Equity Jurisprudence, sec. 1316."
* Mr. Mill says " Any land yields just as much more than
the ordinary profits of stock as it yields more than what is
returned by the worst land in cultivation. The surplus is
what the farmer can afford to pay as rent to the landlord,
and since if he did not so pay it, he would receive more than
the ordinary rate of profit, the competition of other capital-
ists will enable the landlord to appropriate it. The rent,
therefore, which any land will yield is the excess of its
produce beyond what would be returned to the same capital
if employed in the worst land in cultivation." Principles of
Political Economy, Bk. II., ch. xvi., s. 3.
Legal and Practical. 149
(2) Mr. Mai thus, in his Principles of Political Section
. XVIII.
Economy, propounded a definition of rent which from
. ..... pi Mr - Malthus'
its appearance or practicability as a test tor determin- definition of
ing what is reasonable led to its adoption by some of
the Indian judges in deciding on what was " a fair
and equitable rent." He defines rent as " that portion
of the value of the whole produce which remains to
the owner of the land, after all the out-goings belonging
to its cultivation, of whatever kind, have been paid,
including the profits of the capital employed, estimated
according to the usual and ordinary rate of agricultural
capital, at the time being."
To the use of the economists' definitions as tests of objections
to the econo-
rea3onable rent the same objections apply. They mists defini-
* tions astests
assume the existence in the landlord of absolute and of fan- rent,
unqualified rights an assumption which is contradicted
by the policy of the Act. They assume that the tenant
in occupation and competitive tenants stand on equal
terms ; whereas the Act declares that the former is
fairly and equitably entitled to rights (to which a
money value is attached), which put him in a more
favourable position than mere strangers. They sup-
pose a state of things in which no question as to pro-
perty in the productive powers of the soil arises.
They are applicable only to natural soils, that is, soils
not improved by the tenant, or to soils for the improve-
ments on which the tenant has been compensated.
They, moreover, assume a state of things of rare
occurrence in Ireland, or, indeed, anywhere in the
world except England capitalist farming. Its usual
absence marked the necessity for the Act. It is con-
trary to the customs, habits, and usual dealings of the
people. As practical tests they are useless. In the
elaborate inquiries necessary to apply Malthus's rule,
the system broke down in India by its own weight.
150
Notes and Comments,
Section
XVIII.
Tests de-
rived from
the usual
dealings
with lands
in Ireland.
Tests de-
rived from
the prin-
ciples of the
Act.
It is stated that it took two months to record the
evidence which was given in one suit, for the purpose
of showing what was the fair and equitable rent of a
few acres of land. We must then look to the Ulster
custom, and the principles of the Act derived from it,
for guidance. As a matter of fact, land in Ireland is
rarely treated commercially, nor is the rent determined
by pure competition. " Competition, in fact," says Mr.
Mill, " has only become in any degree the governing
principle of contract at a comparatively modern period.
Rights originating in custom, and not competition in
any shape, determine, in a rude state of society, the
share of the produce enjoyed by those who produce
it." Under the Ulster tenant-right, a fair rent is a rent
which does not confiscate any portion of the tenant-
right, the full and fair value of the improvements and
good-will.* The principles of the Act point in the
same direction. A cardinal principle of the Act is that
all improvements made by the tenant are his property, for
which, as he cannot remove them, he is, when leaving,
entitled to compensation. Hence, a rent which would
confiscate any portion of these improvements would not
be a reasonable rent. It would indirectly destroy the
policy of the Act. Another cardinal principle of the
Act is that a tenant disturbed by act of his landlord is
entitled to something more than compensation for im-
provements, viz., to compensation for loss of occupancy.
Hence, in the case of a disturbed tenant, a reasonable
rent must not confiscate the claim for loss of occupancy.
* See ante, p. 37. A " live and let-live " landlord a
common phrase in Ulster was applied to a landlord whose
rents in all cases were such, that whether the tenant's
improvements were small or nil, if forced to sell, he could
realize a fair tenant-right compensation.
Legal and Practical. 151
As the consideration of what is a fair rent in the case Section
XVIII
of a non-customary tenant only arises on disturbance,
he is entitled, equally with the customary tenant, to
have the value of his interest beyond improvements,
viz., his claim under the 3rd section, exempted from
valuation for rent. It is also a fair subject for the
consideration of the court how much lower the rent of
a disturbing landlord should be than the ordinary rent.
Anything increasing the risk, adds to the profits a
prudent man would naturally expect on his capital
invested in farming, and consequently tends to lower
the rent. See ante, note (75).
Two ready tests may be suggested the tenement Tenement
. . valuations.
valuation, and the evidence of persons in the neigh-
bourhood as to what is a fair rent. The tenement
valuation of Ireland is worthless as a test. Owing
to the previous state of the law, it could not take
account of the tenants' improvements or good-will.
And the evidence of persons in the neighbourhood is
only of value when it takes into account the considera-
tions here advanced.
SECTION XIX. Section xix
( 166 ) This section prescribing the form of order by Scope of
the Civil Bill Court, was inserted by the House of
Lords. It only applies to the decrees of the Civil Bill
Court ; not to the awards of the Court of Arbitration.
(1G7) Third, fourth, and seventh sections" The 8th Claim under
\ . J t j m # section 8 not
section is not expressly mentioned ; but it is conceived referred to,
i_ i i Dut not ex_
that, in cases where the landlord exercised the option eluded.
of paying for the crops, the tenant might, under the
Land Act, as well as by ordinary action, make a
152
Notes and Comments,
Section xix. c l a im for compensation under section 8. The Forms
appended to the Rules do not refer to such a case; but
they are merely specimens. There is nothing in sec. 16
to exclude such a claim from jurisdiction under the
Act.
(168) jF om ._See Form VII. (R., P. I.). See, as
to costs, R. 25-26 (P. I).
Form of
order.
Section XX.
Provision in
case of deri-
vative estates
in the same
holding.
Middlemen
and their
tenants
under the
Ulster cus-
tom.
SECTION XX.
( 1G9 ) " Several persons standing to each other in the
relation of landlord and tenant." The section applies to
the case of a succession of landlords and tenants,
where there is a middleman or set of middlemen, and
the determination of a superior tenancy involves the
interest of the subordinate tenancies. In such cases
the Court will determine the persons entitled to receive
and pay compensation, and in what amounts or pro-
portions. It can also in such cases, or where the
interests of persons not represented before the Chairman
are involved, adjourn the hearing and direct notice to
be given to such persons (R. 22, P. I).
See further as to middlemen, note (174).
(i70) N t affect the Ulster tenant-right custom" The
Ulster tenant-right does not apply to middlemen. The
middleman is supposed to be recompensed by the
profit rent he has received ; and on the termination of
his interest, the under-tenants are accepted by the
landlord as his immediate tenants. These are acknow-
ledged to have the ordinary tenant-right claims ; and
justly, as they have in almost every case built the
houses and made the improvements. The only excep-
tion is that occasionally on the principal holding the
house has been built by the middleman ; but even in
Legal and Practical. 153
this case it has been altered or at all events repaired by section xx.
the under-tenant, or the rent is so much higher that the
tenant-right claim is as just in this as in other cases,
and practically no difference is made.*
SECTION XXL fiecrt ^ XXL
(171) _4 tenant who may be decided hi the Court to be Restriction
on eviction.
entitled to compensation." Not a tenant " who has been"
but "who maybe" decided to be entitled to compensation.
Hence, if a prima facie case of compensation is made
out, the Court may put a stay upon execution of the
habere or decree for possession, until the amount of
compensation due has been paid or deposited in
the prescribed manner. The amount of compensation
* It has been objected by Lord Dufferin that in strict Lord
justice " a tenant could not claim for a building which he had on sub-dM-
erected on a sub-divided lot under a lease, such an operation nXtedby a
having clearly taken place without the landlord's connivance middleman.
and against his interest." (Evidence before Mr. Maguire's
Committee, Q. 1,568.) This reasoning overlooks the fact
that the landlord could by a clause in the lease have pre-
vented sub-division. If such a clause has not been inserted,
or having been inserted has not been enforced, and the tenant
without notice from the head landlord has erected buildings
on the faith of the general practice on the estate, the justice
"of his claim is undoubted ; and the landlord who accepted
the benefits without acknowledging the obligations of
hereditary acquisition would be wanting in appreciation of
the justice of the case and of his own position. Lord
Dufferin, however, admits that " the practice of the land-
lords in the North of Ireland " is different from his reason-
ing, and that the considerations he refers to are never
allowed to enter into their estimation of the tenant's claim
(Ibid).
154 Notes and Comments,
Section xxi. d ue " is, if the claim has not heen decided upon, the
sum claimed (see sec. 16, where the words are, "Every
tenant entitled to make any claim for payment of any
sums due to him . . . may serve a notice of such
claim.") These deductions out of the money " so
deposited" for damages, &c, are to be made from
"the making of the claim" until the final giving up
possession language which indicates that the stay
may be ordered at any time after the making of the
claim and not exclusively after the decree. In
practice, the Court will probably only exercise this
power in cases where it was not possible for the
tenant, with the exercise of ordinary diligence, to
serve his claim in time for hearing at the same time
as the ejectment. The policy of the enactment is to
secure the tenant payment of his compensation, though
the landlord cannot be reached by attachment or by
enforcement of the order in the same manner as Civil
Bill decrees (sec. 23).
( ,72 ) u In the manner prescribed" See R., 34-37
(P. L).
damage to t0 0") " Shal1 inc l uire '' Tnis inquiry may be subse-
hoiding. quent to the order made after hearing the claim. It
must be subsequent thereto, when the money is de-
posited after the decision on the claim.
Case of (174) u \y nere compensation is awarded." This pro-
middleman , ' . . ^
vision of the section may be illustrated thus Sub-
tenant C has a claim against middleman B : he is
entitled as against B to hold possession until the com-
pensation which the Court "may" decide that he is
entitled to, is deposited or paid. But C is not entitled
to hold on against head-landlord A, nor liable to such
compensation, after the determination or expiration of
B's title, where compensation " is awarded" to be paid
by B, but which is not paid or deposited by B.
Legal and Practical. 155
SECTION XXII.
Section
XXII.
(75) "Arises." All applications and disputes are to Venueof
be heard in the division of the county where the land
or some part thereof is situated, unless the Chairman
otherwise directs (R. 1, P. I.). Interlocutory motions
may be heard in any division of the county.
section xxin.
Section
XXIII.
(176) Within the prescribed time." During the con- ^ m t e h within
tinuance of the ordinary sessions, of which the Land j^y*"
Session at which the order was made forms a part, order
except upon the application in Court of both parties, or
their consent in writing (see R. 23, P. I.).
(177") "Any order made hi the Chairman under this Act Enforcement
v ' * * of orders by
may be enforced by attachment." Under the Civil Bill attachment.
code the Chairman has no power of attachment. In
the Superior Courts personal attachment is issued
against officers of the Courts and others for the
purpose (amongst other things) of enforcing awards,
undertakings, payment of costs, delivery of deeds, and
for contempt of process or orders. The execution of
the attachment is prescribed by Orders 126 and 127 of
G.O. of 1854.* The intention of this section can
scarcely be that the Chairman should put in force
the attachment " in the same manner as if it were the
order of any of the Superior Courts," there being con-
nected with the latter a special procedure and special
officers over which the Inferior Court has no control.
To give practical effect to the words, it must be held
* See also Ferguson's Practice, Vol. ii., p. 1124.
156 Notes and Comments,
xxxu to mean " enforced by the Superior CouHs ;" and for
this purpose, an application to one of the Superior
Courts, regulated by the procedure of the latter, should
be made. The case of attachment of stock or debts is
Attachment similar. Under the Common Law Procedure Act,
1853, stock, funds, annuities, or shares standing in the
name of a person against whom a judgment has been
obtained, or in the name of any person in trust for him,
may be attached, and may be realized and paid over
to the Sheriff for discharge of the judgment debt.*
A f tt d a e < * ment So, the Superior Courts of Common Law may attach
debts in the hands of third parties to obtain payment
of the judgment debt ; and if the amount is not paid
into Court by the garnishee, execution may be ordered
to issue against him.f
Orders may (178) Or otherwise." Under Pilot's Act orders of
be enforced .
as judg- the Superior Courts of Common Law for payment of
ments. r '
money may be enforced otherwise than by attachment ;
as by the 27th section of that Act J they are to
"have the effect of" judgments. As such they carry
interest, and execution may issue thereon, or they
may be registered as mortgages against any lands of
the respondent of which he is seized or possessed,
or over which he has disposing power which he may,
without the assent of any other person, exercise for
his own benefit.
^"^f, 6 ,"* ( 179 ) "Enforced in the same manner as Civil Bill
of Civil Bill v t J
decrees. decrees for money demands" Civil Bill decrees for
money demands are enforced by execution against the
* 16 & 17 Vic, cap. 113, sees. 132, 133.
t 19 & 20 Vic, cap. 102, sees. 63-69.
t 3 & 4 Vic, cap. 105.
Same Act, sec. 26.
Legal and Practical. 157
goods or body of the defendant.* A defendant cannot, Section
however, be arrested for debt upon a Civil Bill decree
where the amount does not exceed 10, except in
certain cases. t Where he is so exempted from arrest,
the plaintiff may serve a Civil Bill process, requiring
the defendant to show cause why process of arrest
should not issue; and if cause is not shown to the
satisfaction of the Chairman, he may order defendant's
arrest. J If the amount of the judgment exceeds 20,
and the defendant has no goods or chattels which can be
conveniently taken to satisfy the judgment, it may be
removed into one of the Superior Courts by certiorari,
and proceedings may be had thereon as in the case of
a judgment of a Superior Court, but no action may be
brought upon such judgment.!
SECTION XXIV. Section
XXVI.
( 18 ) "Any person aggrieved." A claimant may be Power of
aggrieved by an order in his favour which awards
smaller compensation or a less valuable right than the
Act entitles him to.
( 181 ) " Within the prescribed time." Within one week Time,
from the last day of the ordinary Sessions in the
town in which such order shall be made (R. 38, P. I.).
( 182 ) "In the prescribed manner T By giving notice of Form -
appeal in writing to the opposite party or his attorney,
and lodging a copy with the Clerk of the Peace within
* Coppinger's County Court Practice, by Johnston, p. 124,
132.
f 11 & 12 Vic, cap. 28., sec. I.
X M & 15 Vic, cap. 56, sees. 116, 117.
27 & 28 Vic , cap. 99, sec. 9.
158
Notes and Comments,
Section
XXIV.
Appeal to
assizes.
one week from the last day of the ordinary Sessions in
the town in which the order appealed from has been
made (R. 38, P. I.).
(183) Two judges" Selected by the Court for Land
Cases Reserved (R. 39, P. I.).
( 184 ) "Assize." The appeal is to the next ensuing
assizes ; but if the same are held within ten days from
the termination of the ordinary Sessions in the town
in which the order was made, then to the second next
assizes thereafter (R. 39, P. I.).
SECTION XXV.
Regulations
of Court of
( 185 ) " In the prescribed manner." See Form XI.
Arbitration. (R., P. L), and R. 41-42 (P. I.).
( 186 ) " Prescribed time." At any time before the
first day of the Land Session at which the dispute is
entered for hearing (R. 45, P. I.).
( 187 ) " Recorded in the prescribed manner, fyc." See
R. 43-44, (P. L).
Body cor-
porate, &c.,
capable of
leasing
leaseholds.
SECTION XXVI.
(188) u Thirty-one years." In the 23 and 24 Vict.,
c. 153, the lessor, of the class in this sub-section (2),
must have had an unexpired residue of 60 years, or
a lease renewable for 60 years. In this Act 31 has
been substituted for 60.
Section
XXVIL
Charging
order obtain-
able by
limited
owner.
SECTION XXVIL
(189) < Limited Owner." As a landlord is bound to
make compensation to a tenant irrespective of the title
of the former, a tenant for life might have had to pay for
Legal and Practical. 159
improvements benefiting the inheritance. This section section
enables a tenant for life to get an order charging the '
holding with an annuity in respect of compensation
paid on agreement with the tenant thereof. The
tenant for life may mortgage this annuity, and thus
raise the amount paid in compensation. Under section
42, where a tenant quits voluntarily (not disturbed by
act of the landlord), the Board of Works may advance
the compensation, recouping themselves by an annuity
charged on the holding. The present section will then
only be availed of in cases of compensation arising on
disturbance.
(190^ Apply" The application must be after Form j me and
A (R., P. I.), accompanied by a map, to be lodged application,
with the Clerk of the Peace two months before the
Land Session at which it is to be heard (see R. 46,
P. I.).
(Wi) " Order." See R. 46-53 (P. I.).
(| 92) i n the prescribed form." Form C (R., P. I.). Notice -
The notice must be given after the application, and
twenty-one days before the commencement of the Land
Session (R. 49, P. I.). If there is any difficulty in
determining the person to be served, or in serving him,
the directions of the Chairman should be taken in the
first instance (R. 52, P. I.).
SECTION XXVIII. s**
(192) u Thirty-Jive years." The previous limit of such Agricultural
lease was twenty-one years. The Bill, as it left the limited '
. T owner.
Commons, had thirty-one years. It was changed to
thirty-five years in the Lords, on the motion of Lord
Bandon. See next section as to the effect of such lease.
(193) m _f a { r yearly rent" The words of the previous
160 Notes and Comments,
section Act were " the best yearly rent that can reasonably
be gotten ;" and no account could be taken of tenants'
improvements.
Conflrma- ( 194 ) " Application of any landlord" $c. After the
se " Form E. or F. (R., P. I.), verified by affidavit, as
directed by R. 54. It must be lodged with the Clerk
of the Peace two months, and notice is to be served
on the tenant or the limited owner, as the case may
be, fourteen days before the commencement of the
Land Session at which the application is to be heard
(R. 54, 55, P. I.). See as to service of notices, R. 58
(P. L).
(195) m May confirm? See R. 54-58 (P. I.).
(196) Certified in the prescribed manner." See R. 57
(P. I.).
Section SECTION XXXII.
XXXII.
fng e to f te h n ant ( 197 ) " Holding." See definition, sec. 7 1 . "As the
menf. ree conveyance by the Court to the tenant will discharge
the holding from any sub-tenancy existing therein, no
sale of any holding will be made under the Act to any
tenant unless such tenant be under his tenancy in, or
entitled to, the actual possession of the holding, or
unless every sub-tenant on the holding consents in
writing to such sale being made" (R. 4, p. II.).
Form of (198) " Agreement." It must be in writing, signed by
agreement. . . r*
the parties, and is subject to the approval of the Court.
It may be in the Form (No. 1), R. P. II., and may
comprise the holdings of two or more tenants. R. 2
(P. II.).
(199) u Apply to the Landed Estates' Court." See as
to the form of statement, R. 3, 6, and 14 (P. II.).
Legal and Practical. 161
SECTION XXXIII. i^a.
( 200 ) " Landlord." A landlord having such an estate incumbran-
as enables him to sell under this part of the Act, is not to sale of
precluded from selling by reason of the existence of tenants.
incumbrances upon it; and the consent of incum-
brancers is not needed. See as to notices to incum-
brancers, R. 18 (P. II.).
SECTION XXXIV.
(2oi) "Deposit." See R. 7, P. II.
(202) Conveyance." See Form 7, and R. 9 (P. II.)-
SECTION XXXVI.
(2 county j n g sec tj ons dealing with the grand jury cess, apply
to all premises liable to grand jury cess, or only to
holdings as defined by the Act ? The characteristic
word, u holding," applied in reference to all the pre-
vious provisions of the Act, does not appear, and the
word " premises" is substituted.* The words, too, are
designedly large " Any person who under any tenancy
whatsoever" The words of the 71st sec. seem properly
to mean " This Act, in its application to holdings, shall
not apply to any holding," &c. ; else it is hard to
understand why the negative form was used, and not
the form in the 73rd section.
In cases of ambiguous language in an Act, it is
proper to consider what is the cause and reason of the
Act (in other words, the mischief requiring a remedy) ;
* In sec. 66 the words are " premises situate in any county
of a city, county of a town, or barony, occupied by any
person under any tenancy whatsover," words which seem
made designedly large enough to include ordinary town
tenancies.
Legal and Practical. 169
for in such cases it should be construed so as to render secUonhxv.
the remedy effectual.* The reason of the enactment
as to grand jury cess is the same as the corresponding
enactment as to poor-rate, and is as applicable to urban
as to rural tenancies.
(23i) "Tenancy . . . created" See, as to what Creation of
v ' m ' tenancy.
constitutes a creation of a tenancy, notes 25 and 46.
( 232 ) "May deduct." The amount to be deducted Amount of
. ,. . ,. deduction.
from the immediate lessor is half the poundage cess of
Is. or 2s. as the case may be, for every pound in the
amount of the yearly rent to which the occupier is
liable. The cess is levied upon the annual value, and
the proportion of rate to be deducted is to be calculated
upon the year's rent, although the gale of rent payable,
and from which the deduction is to be made, may be
for a less period than a year ; but in no case is the
tenant to deduct more than one-half the amount of
cess paid by him.
( 233 ) " Pays a rent." By the Poor Law Acts, the
poor-rate may be deducted from tithe ; and rent is in
the interpetration clause made to include " every fee-
farm rent, and rent-seek, and rent-charge." " Rent "
is defined in 23 & 24 Vic, c. 154, as including "any
sum or return in the nature of rent, payable or given
by way of compensation for the holding of lands."
There is no definition of the word in the present Act.
(234\ Rent received and paid under contracts entered Deduction
v ' * by middle-
into after." An intermediate landlord cannot deduct a man.
proportionate sum from his immediate landlord, unless
a deduction has been made by the occupier, and he
pays rent to his immediate landlord under a contract
entered into after the passing of the Act.
* Haydon's Case, 3 Rep., 7 ; Lyle v. Bernard, 1 M. & W.,
113.
Definition of
rent
170 Notes and Comments,
lS SECTION LXVI.
fnoter rged ( 235 ) " Liahle io Grand Jury Cess." In some counties
taxes - of cities and counties of towns the grand jury cess
has been replaced by an improvement rate or general
purposes rate, in which it is merged with other taxes.
In these cases the provisions of these sections seem
inapplicable.
SECTION LXIX.
Creation of
tenancy at
(236) u Tenancy-at-will." A tenancy-at-will is created
wUI - by express words; or where a person lets lands to
another without limiting any certain or determinate
estate ; or where a person lets another into possession
under a contract for sale or an agreement for a future
lease prior to payment of rent; or where a person
lives in a house rent free, by the sufferance and
permission of the owner, e. g., a minister placed in
possession by the trustees of the congregation, or enters
as tenant under a void lease, prior to payment of rent.*
A mortgagor has often been inaccurately called a
tenant at will to the mortgagee.!
SeclionLXX. SECTION LXX.
Definition ^237) " Person." This includes any body corporate,
politic, or collegiate, whether aggregate or sole, and
any public company.
Trustee and (238) Entitled to receive the rents and profits." The
cestui que
trust. trustee, and not the cestui que trust, should be made
* Woodfall, Landlord and Tenant, p. 186, and Smith's
Leading Cases, ii., 108.
f Ibid., p. 191.
Legal and Practical. 171
respondent. If the latter has, however, given a receipt sectionLXx.
for rent, he would be estopped from denying his liability
as respondent.
The relation of landlord and tenant does not exist Mortgagor
and mort-
between mortgagor and mortgagee, except where under gagee.
the mortgage directly or constructively a tenancy has
been created between them,* when the claim may be
against both, and the adjustment of their mutual
liabilities will be regulated by sec. 20 (unless the claim
is for disturbance by the act of the immediate landlord
under a tenancy from year to year existing at the time
of the passing of the Act). In this last case, and where
the relation of landlord and tenant has not been created
between mortgagor and mortgagee, the claimant must
determine whether he is a tenant under the Act, and
whether the mortgagor or mortgagee is to be made
respondent.
I. Where the tenancy commences before the mortgage, as Tenant-
by the mortgage the right to receive the future rents mortgage,
passes to the mortgagee,! and the mortgagor cannot
sue the tenant in ejectment,:}: no question of disturbance
by the mortgagor arises, unless the mortgage contain
a re-demise for a term certain which has not ceased.
If the disturbance is the act of the mortgagee, the
tenant may claim against him as immediate landlord.
The mortgagee as assignee stands in the same posi-
tion as the mortgagor stood. The claim of a tenant
quitting voluntarily is against the mortgagor, until the
* Fisher, Law of Mortgage, Vol. i., p. 465.
f Trent v. Hunt, 9 Ex., 1 4 ; Rogers v. Humphreys, 4 Ad.
and E., 299.
% Doe d. Marriott v. Edwards, 5 B. and Ad., 1065.
Doe d. Lyster v. Goldwin, 2 Q. B., 143.
172
Notes and Comments,
Tenancy-
after mort
age.
secti n determined
tenancy determined or expired before 1st August, 1870, before Act.
but who remained in possession after that date without
anything done by the landlord to create a new tenancy,
entitled to claim ? It might be said that the clause
under consideration shows that he is so entitled " not-
withstanding such determination ;" but if so, there is
nothing to limit it to tenants in possession ; it would
make the Act, where not otherwise indicated, applicable
to all persons who had at any time been tenants a
construction only to be given on very clear indication
of intention in the Act itself. It is more reasonable
to consider the words as simply applying to the case of
tenants clearly entitled under the Act, at or after its
passing, and declaring that the fact of their ceasing to
be legally tenants is not to deprive them of compensation
to which they are entitled in their character of tenants,
thus sanctioning the Rule (R. 4 e, P. I.) that a tenant
may claim within a month after he quits or is deprived
of possession.
A tenant whose term of years expired before 1st J^*"^,
August, 1870, or a yearly tenant served with notice to
quit which expired in the May previous, is only tenant
at sufferance ; and, if the landlord proceed, without any
unreasonable delay after the expiration of the tenant's
title, for recovery of possession, the person overholding
will be treated as a trespasser from the day on which
his legal title expired ; but if the landlord directly or
constructively has waived the notice, or done any other
174 Notes and Comments,
section lxx. act evidencing an intention to recreate the tenancy,*
the tenant will thereupon become entitled under the
Act.
Tenant A tenant under a lease or tenancy which determined
emblements before, and who continued to hold until after the
Act,'i86o. passing of the Act, under the emblements section of
the Landlord and Tenant Act, 1860, would appear to
be clearly a tenant entitled to compensation under the
Act, as it is expressly provided that " the landlord or
the succeeding landlord or owner and the tenant res-
pectively shall, as between themselves and as against
each other, be entitled to all the benefits and advan-
tages, and be subject to all the terms, conditions, and
restrictions to which the landlord or preceding landlord
or lessor and such tenant respectively would have been
entitled and subject in case the lease or tenancy had
determined at the expiration of the current year."t
(24i) " Suitable to holding." See ante, p. 100.
Definition of ( 24 2) " Tillages." By this term is meant the mecha-
nical operations, such as the ploughings, harrowings,
grubbings, weedings, rollings, &c. (all included under
the English term " dressings"), performed to land in
order to loosen, comminute, and clean the soil, which
had become exhausted during the course of rotation
pursued on the farm. These tillage operations are
* See ante, note (46).
f 23 and 24 Vic., cap. 154, sec. 34. "The words of the
statute immediately cast upon the tenant, in lieu of his claim
for emblements, a continuing tenancy." Per Perrin, J., in
StradbroJce v. Mulcahy, 2 I. C. L., 412. "The true con-
struction of the Act is to give a legal tenancy in the land
during the period in which previously the tenant had the
right to enter and take away the emblements, and from
thence to the then current year of the tenancy." Per
Monahan, C.J., Hyde v. Roche, 5 I. C L., 200.
Legal and Practical. 175
generally begun in winter, and followed in spring Section lxx.
by manuring and sowing tbe land with potatoes,
turnips, or other green crops. Tillage operations
do not conclude with sowing. Being placed in
parallel rows or drills, these crops admit of the
intervening spaces being stirred, pulverized, and
cleaned during their growth, and considerable ex-
penditure of labour is incurred, the benefit of which
remains during the rotation, becoming of course gradu-
ally exhausted towards its close. For the unexhausted
benefit thereof, the tenant is entitled to claim com-
pensation. The exhaustion will be greater or less
according to the length, and period of the rotation (vary-
ing in direct proportion to the length, and in inverse
proportion to the period) the nature and treatment of
the crops, the chemical composition and mechanical
condition of the soil. The English rules of valuing English rules
tillages, being dependent on the custom of the country,
and varying in almost every district,* are inapplicable.
In England, " where a tenant is bound to a regular
rotation of crops, either by express stipulation or
the custom of the country, he is not entitled to any
remuneration for tillages out of the regular course." f
The sole questions under the present Act are whether
any benefit therefrom remains unexhausted, and what
is the value of such benefit. In England, " when land
has been laid in fallowj one year, and made perfectly lage."
* Dixon, Law of the Farm, pp. 1-37 ; W. Cooke, Agricult.
Tenancies, pp. 53-129.
f Woodfall, Landlord and Tenant, p. 600.
J There are three sorts of fallows : Bare fallow, where
land remains without crop for a whole year ; bastard fallow,
where it is ploughed up and worked, after the removal of a
spring or summer crop (it may be of vetches or corn), pre-
paratory to the sowing of a root or forage crop to occupy
176
Notes and Comments,
Seciionhxx. clean, and is valued before producing a crop, it is
denominated a full tillage ; and, in taking the valuation,
the rent, taxes, dressings, manure, seed, if any sown,
and labour are calculated. When turnips, rape, or
Rotation
of crops.
In Sonth
and East of
Great
Britain on
light lands.
the ground during autumn or winter; and green-crop fallow,
which " generally begins in the autumn, and is in March or
April renewed, so as to prepare the land for the reception of
a crop of mangold wurzel by the early part of May, oi; a crop
of Swede turnips in the early part of June." Bayldon, Rents
and Tillages, p. 113. See also ibid., p. 287, where a valuation
of a fallow is given, the ploughing, harrowing, &c, being
set down at 3 2s., the manure at 5, and the turnip seed,
drilling and hoeing at lfis. per English acre. Bare fallows,
since the introduction of artificial manures and turnip hus-
bandry, have become very rare.
In Mr. Caird's article on Rotation of Crops in Morton's
Cyclopaedia of Agriculture, the following systems, pursued
by the best farmers on light lands in the south and eastern
parts of Great Britain, are noticed :
I. Norfolk system: 1. Clover and grass ; 2. Wheat; 3.
Turnips ; 4. Barley.
II. Five-course : Same as previous, except that the land
is kept two years in clover and grass. When the land is very
rich it is not uncommon to take barley after wheat in Essex.
Some first-rate farmers in Norfolk adopt the following
course: 1. Clover, trefoil, or pease; 2. Wheat; 3. Oats;
4. Turnips; 5. Wheat or barley. The Northumberland
system, very usual with good farmers in Ulster, is 1. Oats ;
2. Turnips ; 3. Wheat, barley, or oats ; 4. Clover and grass ;
5. Ditto.
III. Six-course: 1. Turnips; 2. Barley; 3. Clovermown;
4. Clover grazed ; 5. Wheat ; 6. Barley. This is the most
common in Northampton. In Leicester and East Lothian
the last three are 4. Wheat or oats ; 5. Beans or potatoes ;
6. Wheat.
IV. Seven-course: This is peculiar to the fen country.
Legal and Practical. 177
other green crops have been consumed on the ground section lxx.
by sheep, land also is said to be in full tillage, but
one-half of the value of the crop is to be deducted.
When land has sustained one white crop after a fallow " Half tu -
I. Turnips or cole seed; 2. Oats; 3. Wheat; 4. Seeds;
5. Wheat; 6. Beans; 7. Wheat.
V. Eight-course: 1. Turnips; 2. Barley; 3. Grass and
clover; 4. Wheat; 5. Mangold; 6. Wheat; 7. Beans; 8.
Wheat.
In noticing the rotations of the west, Mr. Caird says the In the West -
greater humidity of the climate has induced resort to different
courses of crops. "That which used to be reckoned the
golden rule of farming, that no two white crops should
follow in immediate succession, is found inapplicable in
Lancashire; the four-course of the eastern counties being
here converted into two successive green crops, followed by
two successive corn crops " (Vol. ii., p. 768). Of rotations for
heavy or clay soils he gives several instances. In Berkshire On clay soils,
the course is 1. Fallow; 2. Wheat; 3. Beans; 4. Wheat;
5. Barley ; 6. Half clover, half pease. On the Carse of
Scotland it is 1. Fallow; 2. Wheat; 3. Barley; 4. Clover;
5. Oats; 6. Beans; 7. Wheat.
The variety of rotation thus exhibited shows the absurdity No dogmatic
of dogmatism on the subject. Peculiarity of soil, climate, rotation.
and even mode of cultivation must be regarded in deciding
on what is a proper rotation on a particular farm. Provided
the soil is not deteriorated, " the farmer ought to attend not
only to what is suitable to the soil, but also to the crops for
which in his locality there is the greatest demand " (Vol. ii.,
p. 770).
Flax, a very valuable and important crop in Ulster, is Flax in
not mentioned in these rotations. Once in seven years is
generally considered the proper rotation for flax, where
special manuring is not had recourse to, and it generally
follows or is substituted for a grain crop. That flax is not
necessarily an exhausting crop is evident from the richness
N
178 Notes and Comments,
SeetionLxx . or turnips, it is said to be only half a tillage ; and only
one-half of the rent, taxes,* dressings, and manure
expended in the year of fallowing are allowed to the
out-going tenant; and if the turnips be drawn and
consumed off the land, half the dressing and one-fourth
of the manures only are allowed, and nothing is charged
for rent and taxes." f The value of these rules lies
in the principles, not the details of valuation, they
exhibit, as the arbitrary limit of halves and fourths is
contrary to the wording of the present section.
valuation (243\ Manures." The term includes all materials
of manures.
added to the soil for the purpose of increasing its pro-
ductive powers. I The value of the manure includes
the cost of turning, mixing, carting, casting, and
spreading. The unexhausted benefit of manures varies
with the description of the manure employed, its
quality, the character of the land to which, and the
circumstances under which, it is applied. A heavy
clay soil retains manure longer than a light soil.
and cleanliness of the flax districts of Flanders, which are
more like gardens than fields. This is the opinion of Mr.
Morton (Cyclop, of Agric, Art. Flax) ; and he quotes the
high scientific authority of Sir Robert Kane : " The fibre is
not formed by the exhaustion of the soil, but the materials
which the flax takes out of the soil are all found in the flax-
water and the chaff*; and if these be returned to the soil,
they will restore its fertility ; and thus the flax crop may be
rendered one of the least injurious to the ground, and most
remunerative to the farmer."
* Rent and taxes are valued by taking their total for the
farm, dividing by the number of acres, to get their acreable
amount, and multiplying this by the number of acres in
fallow. See Bayldon, Rents and Tillages, 8th ed., p. 287.
t Woodfall, Landlord and Tenant, p. 599.
X Morton's Cyclop, of Agric., Vol. ii., p. 328.
Legal and Practical. 179
1. Farm-yard manure. The manure of animals fed Section lxx
on straw and dried stems of plants is less rich than Farm-yard
that produced by animals fed on turnips, oil-cake, and
other nourishing food.* The manure of fattening is
richer than that of milking or working animals ; of
full-grown than that of young stock. " Wherever a
large quantity of oil-cake or other rich feeding sub-
stances has been consumed, a due allowance should
be made to the consumer. One-third of the cost of
the oil-cake is considered to be added to the value of
the manure, and one-fourth would in no case be too
much to allow."!
2. Lime. " Some time ago it was held that ten Lime,
years was not too long a period to allow for the in-
fluence of lime upon grass, and four white crops on
arable lands. That period has now been reduced to
six years. The expense of carrying and spreading the
lime is added to the prime cost." } Under Mr. Sturt's
" Tenant Security Rules " in Dorsetshire, allowance for
liming extends to the seventh year. " The quantity of
lime to be applied depends upon the nature of the soils,
the climate, and other circumstances. A moderate
application for the lighter soils is held to be 120
bushels, and a medium dose for soils of different kinds
about 130 bushels, though a much larger quantity is
applied in certain clay-land districts." In the latter
cases " an effectual liming need not occur in less than
fourteen or fifteen years." ||
* Low, Elements of Practical Agriculture, 5th ed., p. 115.
t Bayldon, pp. 188-192.
j Ibid., p. 198.
Dixon, Law of the Farm, p. 7.
|| Low, Practical Agriculture, p. 80.
180
Notes and Comments,
section lxx. 3. Soot. " Soot is a powerful manure. It is used
Soot. as a top-dressing, in quantities varying from 20 to 40
bushels, on spring crops of corn, tares, and on young
turnips. One crop consumes the value."* " It exhibits
most efficacy in the case of the cereals and other
grasses."!
MarL 4. Marl. " Marl is much more enduring in its effects
than quick-lime." \ It " affects the productiveness many
years both of crops on arable land and of grass on
pastures. The quality of the marl and the customary
course of cropping determine the length of the term."
5. Burnt earth or clay. " There is unquestionably a
great deal of improvement effected in the character of
clay soils by the partial burning of collected clods." ||
6. Bones. " Six years is allowed for crushed bones
when laid on pasture, and four years on grass lands
successively mown ; and in some places ten years for
pasture and six years for mown grass. On arable land
four corn crops or six years are sometimes allowed.
In other places a longer period is allowed." For bone
dust a year less is allowed. The benefit of dissolved
bones (superphosphate of lime) is nearly exhausted by
the first crop.^f
Guano. 7. Guano, and artificial manures which derive their chief
benefit from ammonia, or from animal substances and the
phosphates. "Little value can remain after a grain
crop has been taken. When applied for the production
of any description of root crop the full value is allowed,
Burnt clay.
Bones.
* Bayldon, Rents, &c, p. 202.
f Low, Agriculture, p. 100.
t Ibid., p. 83.
Bayldon, p. 204.
|| Ibid., p. 205.
T Ibid., p. 206.
Legal and Practical. 181
except where the produce is valued by its estimated Section lxx
quantity."*
8. Composts. These are mixtures, generally com- Composts.
posed of earth, clay, sand, and vegetables, with a
suitable mixture of lime. On arable lands the value
is supposed to be fully returned by two crops of corn ;
and on grass by being twice mown, or four years in
pasture, f
9. Salt. Salt has been particularly recommended Salt -
for the cereal crops, particularly wheat and barley, the
straw of which it strengthens and brightens. It is
also highly recommended for root crops, particularly
mangolds. %
( 244 ) " Other like farming works." Such as acts of
husbandry and seed for ensuing crop of wheat, rye,
winter vetches, winter beans, &c, artificial grass
seeds and labour employed upon them, stubbing and
cleansing out fence-sides and ditches, clipping hedges,
repairing farm-roads, whitewashing farm -buildings,
sinking trenches for procuring clay, gathering sur-
face stones off grass to prepare for scythe or mowing-
machine, &c.
* Bayldon, p. 207.
t Ibid., p. 208.
X Morton's Cyclop. Agric, Art. Salt. It is also useful for
beans, peas, clover, and rye-grass (Hodges, Lessons in
Chemistry, p. 105).
" On the Mourne mountains, on the estate of the
Marquis of Downshire, they are in the habit of sinking
trenches in the disintegrated granite soil, ten and twelve
feet deep, to procure clay, in order to give stiffness to the
soil ; and it is doubtful whether throughout the whole
British empire greater exertions are made to procure good
crops by mere manual labour." Sir R. Griffith, Land
Occupation Commission Report, Vol. i., p. 26.
182 Notes and Comments.
section SECTION LXXL
LXXL
(245) 2%ts Act shall not apply to any holding which is
not." This section is virtually a definition of holding,
and seems intended to limit the operation of the Act,
not to holdings, but in its reference to holdings. See
ante, note (230).
THE LANDLORD AND TENANT
(IRELAND) ACT, 1870.
(33 34 Vic, Cap. 46.)
An Act to Amend the Law relating to the
Occupation and Ownership of Land in
Ireland. [1st August, 1870.]
WHEREAS it is expedient to amend the law relating
to the occupation and ownership of land in Ireland :
Be it enacted by the Queen's most Excellent Majesty,
by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the
same, as follows :
PART I(i).
Law of Compensation to Tenants.
Claim to Compensation.
1. The usages prevalent in the province of Ulster, Legality of
which are known as, and in this Act intended to be right custom (?)
included under, the denomination of the Ulster tenant-
right custom ( 3 ), are hereby declared to be legal ( 4 ), and
shall, in the case of any holding ( 5 ) in the province of
Ulster proved ( 6 ) to be subject thereto ( 7 ), be enforced
in manner provided ( 8 ) by this Act.
Where the landlord ( 9 ) has purchased ( l0 ) or acquired
(") or shall hereafter purchase or acquire from the tenant
the Ulster tenant-right custom ( l2 ) to which his holding
is subject, such holding shall thenceforth cease ( l3 ) to
be subject to the Ulster tenant-right custom.
184 The Landlord and Tenant Act, 1870,
A tenant of a holding subject to the Ulster tenant-
right custom, and who claims the benefit of such custom,
shall not be entitled to compensation under any other
section of this Act ; but a tenant of a holding subject
to such custom ( u ), but not claiming under the same,
shall not be barred from making a claim for compensa-
tion, with the consent of the Court ( I5 ), under any of
the other sections of this Act, except the section relating
to compensation in respect of payment to incoming
tenant ; and where such last-mentioned claim has been
made and allowed, such holding shall not be again ( ,6 )
subject to the Ulster tenant-right custom.
Legality of 2. If, in the case of any holding not situate within
tenant custom '
other than the province of Ulster, it shall appear that an usage
(17). prevails which in all essential particulars ( lr ) corresponds
with the Ulster tenant-right custom, it shall in like
manner, and subject to the like conditions, be deemed
legal, and shall be enforced in manner provided by this
Act.
Where the landlord has purchased or acquired or shall
hereafter purchase or acquire from the tenant the benefit
of such usage as aforesaid to which his holding is
subject, such holding shall thenceforth cease ( 19 ) to be
subject to such usage.
A tenant of any holding subject to such usage as
aforesaid, and who claims the benefit of the same, shall
not be entitled to claim compensation under any other
section of this Act, but a tenant of a holding not claim-
ing the benefit of such usage ( 20 ) shall not be barred
from making a claim for compensation with the consent
of the Court ( 21 ) under any of the other sections of this
Act ; and where such last-mentioned claim has been
made and allowed, such holding shall not be again ( 22 )
subject to such usage as aforesaid.
Compensation in 3. Where the tenant ( 24 ) of any holding held by
eustonT (). h under a tenancy created ( 2& ) after the passing of
this Act is not entitled ( 26 ) to compensation under
sections one and two of this Act, or either of such
sections, or if entitled does not seek compensation under
said sections or either of them, and is disturbed ( 17 )
33 if 34 Vic, Cap. 46. 185
in his holding by the FCt of the landlord, he
shall be entitled to such compensation for the loss ( 28 )
which the Court shall find to be sustained by him by
reason of quitting his holding, to be paid by the land-
lord, as the Court may think just, so that the sum
awarded does not exceed the scale following ; that is to
In the case of holdings valued under the Acts relating
to the valuation of rateable property in Ireland at
an annual value ( 29 ) of
(1.) 10 and under, a sum which shall in no case
exceed seven years' rent ;
(2.) Above 10 and not exceeding 30, a sum
which shall in no case exceed five years' rent ;
(3.) Above 30 and not exceeding 40, a sum
which shall in no case exceed four years' rent ;
(4.) Above 40 and not exceeding 50, a sum
which shall in no case exceed three years'
rent ;
(5.) Above 50 and not exceeding 100, a sum
which shall in no case exceed two years' rent ;
(6.) Above 100, a sum which shall in no case
exceed one year's rent ;
But in no case shall the compensation exceed the sum
of 250.
Any tenant in a higher class of the scale may, at
his option (*>), claim compensation under a lower class,
provided such compensation shall not exceed the sum to
which he would be entitled under such lower class on the
assumption that the annual value of his holding is
reduced to the sum (or where two sums are mentioned,
the highest sum) stated in such lower class, and that his
rent is proportionally reduced.
Provided that no tenant ( 3I ) of a holding valued at a
yearly sum exceeding 10, and claiming under this
section more than four years' rent, and no tenant of a
holding valued at a yearly sum not exceeding 10, and
claiming as aforesaid more than five years' rent, shall be
entitled to make a separate or additional claim for
improvements other than permanent buildings ( M ), and
reclamation of waste land.
186 Hie Landlord and Tenant Act, 1870,
Provided that
(1.) Out of any moneys payable to the tenant under
this section all sums due ( 33 ) to the landlord
from the tenant or his predecessors in title in
respect of rent ( 34 ), or in respect of any dete-
rioration ( 35 ) of a holding arising from non-
observance ( 36 ) on the part of the tenant of
any express or implied ( 37 ) covenant or agree-
ment, may be deducted by the landlord, and
also any taxes ( 38 ) payable by the tenant due
in respect of the holding, and not recoverable
by him from the landlord :
(2.) A tenant of a holding who at any time after the
passing of this Act subdivides ( 39 ) such holding,
or sublets the same or any part thereof, without
the consent ( 40 ) of the landlord ( 41 ) in writing,
or after he has been prohibited in writing by
the landlord or his agent from so doing, lets
the same or any part thereof in con-acre ( 42 ),
save for the purpose of being solely used and
which shall be solely used for the growing of
potatoes or other green crops ( 43 ), the land
being properly manured, shall not, nor shall
any sub-tenant (") of or under any such tenant
as last aforesaid, be entitled to any compen-
sation under this section :
(3.) A tenant of a holding under a lease ( 45 ) made after
the passing of this Act, and granted for a term
certain of not less than thirty-one years, shall
not be entitled to any compensation under this
section, but he may claim compensation under
section four of this Act.
The tenant of any holding valued under the Acts
relating to the valuation of rateable property in Ireland
at an annual value of not more than one hundred
pounds, and held by him under a tenancy from year to
year existing (<) at the time of the passing of this Act,
shall, if disturbed by the act of his immediate ( 47 ) land-
lord, be entitled to compensation under and subject to
the provisions of this section.
Any contract made by a tenant by virtue of which he
33 $ 34 Vic., Cap. 46. 187
is deprived of his right to make any claim which he
would otherwise be entitled to make under this section
shall, so far as relates to such claim, be void ( 49 ) both at
law and in equity ; this provision shall be subject to the
enactment contained in the section ( 49 ) of this Act relating
to the partial exemption of certain tenancies, and
remain in force for twenty years from the first day of
January one thousand eight hundred and seventy-one,
and no longer, unless Parliament shall otherwise deter-
mine.
4. Any tenant of a holding who is not entitled to Compensation In
. , . , - respect of im-
compensation under sections one and two ot this Act, provenients (M).
or either of such sections, or if entitled does not make
any claim ( M ) under the said sections, or either of them,
may on quitting ( a ) his holding, and subject to the
provisions of section three ( 53 ) of this Act, claim ( M )
compensation ( 55 ) to be paid by the landlord under this
section in respect of all improvements ( a6 ) on his holding
made by him or his predecessors in title ( 5r ).
Provided that
(1.) A tenant shall not be entitled to any compen- Exception of
. . , , . * r certain improve-
sation in respect of any of the improvements ments.
following, that is to say
(a.) In respect of any improvement made
before the passing of this Act ( 58 ), and twenty
years before the claim of such compensation
shall have been made, except permanent
buildings ( 59 ) and reclamation of waste land ( 60 ) ;
or,
(6.) In respect of any improvement pro-
hibited ( 61 ) in writing by the landlord as being
and appearing to the Court to be calculated
to diminish the general value of the landlord's
estate, and made within two years after the
passing of this Act, or made during the un-
expired residue of a lease granted before the
passing of this Act ; or,
(c.) In respect of any improvement made
either before or after the passing of this Act
in pursuance of a contract entered into for
valuable consideration therefor ( M ) ; or,
188 The Landlord and Tenant Act, 1870,
(d.) (Subject to the rule ( 63 ) in this section
mentioned as to contracts) in respect of any
improvement made, either before or after the
passing of this Act, in contravention of a con-
tract in writing not to make such improvement ;
or,
(e.) In respect of any improvement made
either before or after the passing of this Act,
which the landlord has undertaken to make ( 64 ),
except in cases where the landlord has failed
to perform his undertaking within a reasonable
time :
Exception of cer- (2.) A tenant of a holding under a lease or written
tain tenancies. v J
contract made before the passing of this Act
shall not be entitled on being disturbed by the
act of the landlord in or on quitting his holding
to any compensation in respect of any im-
provement, his right to which compensation is
expressly excluded ( 65 ) by such lease or contract :
(3.) A tenant of a holding under a lease made either
before or after the passing of this Act for a term
certain of not less than thirty-one years ( 66 ), or
in case of leases made before the passing of this
Act for a term of a life or lives with or without
a concurrent term of years, and which leases
shall have existed for thirty-one years before the
making of the claim, shall not be entitled to any
compensation in respect of any improvement
unless it is specially provided in the lease that he
is entitled to such compensation, except per-
manent buildings and reclamation of waste land,
and tillages or manures, the benefit of which
tillages or manures is unexhausted ( 67 ) at the
time of the tenant quitting his holding.
(4.) A tenant of a holding, who is quitting the same
voluntarily ( 68 ), shall not be entitled to any com-
pensation in respect of any improvement when it
appears to the Court that such tenant has been
given permission by his landlord to dispose of his
interest in his improvements to an incoming
tenant upon such terms as the Court may deem
33 34 Vic, Cap. 46. 189
reasonable ( 69 ), and the tenant has refused or
neglected to avail himself of such permission :
(5.) Out of any moneys payable to the tenant under
this sectien all sums due ( ,0 ) to the landlord from
the tenant or his predecessors in title in respect
of rent, or in respect of any deterioration of the
holding arising from non-observance on the part
of the tenant of any express or implied covenant
or agreement may be deducted by the landlord
and also any taxes payable by the tenant due in
respect of the holding and not recoverable by him
from the landlord.
Any contract between a landlord and a tenant whereby the
tenant is prohibited from making such improvements ( 7l )
as may be required for the suitable occupation of his
holding and its due cultivation shall be void both at law
and in equity, but no improvement shall be deemed to
be required for the suitable occupation of a tenant's
holding and its due cultivation which appears to the
Court to diminish the general value of the estate of the
landlord, nor shall anything in this Act contained
authorize ( 72 ) or empower any tenant or occupier, without
the previous consent in writing of the landlord, to break
up or till any land or lands usually let, occupied, or used
as grazing or grass lands, or let expressly as grazing or
meadow land, or to cut timber without the consent of
the landlord ; provided that the tenant may cut timber
planted and registered ( 73 ) by him or his predecessors in
title.
Any contract made by a tenant by virtue of which he
is deprived of his right to make any claim ( 74 ) which he
would otherwise be entitled to make under this section
shall, so far as relates to such claim, be void both at law
and in equity, subject, however, to the enactment con-
tained in the section of this Act relating to the partial
exemption of certain tenancies, and to the provision in
this section as to any improvement made in pursuance of a
contract entered into for valuable consideration therefor.
Where a tenant has made any improvements before
the passing of this Act on a holding held by him under
a tenancy existing at the time of the passing thereof,
190 The Landlord and Tenant Act, 1870,
the Court in awarding compensation to such tenant in
respect of such improvements shall, in reduction of the
claim of the tenant, take into consideration the time ( 75 )
during which such tenant may have enjoyed the advan-
tages of such improvements, also the rent ( 76 ) at which
such holding has been held, and any benefits ( 77 ) which
such tenant may have received from his landlord in
consideration, expressly or impliedly, of the improve-
ments so made.
Presumption in 5. For the purposes of compensation under this Act
prorements (78). in respect of improvements on a holding which is not
proved to be subject either to the Ulster tenant-right
custom or to such usage as aforesaid, or where the
tenant does not seek compensation in respect of such
custom or usage, all improvements on such holding
shall, until the contrary is proved, be deemed to have
been made by the tenant or his predecessors in title ( 79 ),
except in the following cases ( 80 ) where compensation is
claimed in respect of improvements ( 81 ) made before
the passing of this Act :
(1.) Where such improvements have been made pre-
vious to the time at which the holding in
reference to which the claim is made was
conveyed on actual sale ( 82 ) to the landlord, or
those through whom he derives title :
(2.) Where the tenant making the claim was tenant
under a lease ( 83 ) of the holding in reference to
which the claim is made :
(3.) Where such improvements were made twenty ( 84 )
years or upwards before the passing of this Act :
(4.) Where the holding upon which such improve-
ments were made is valued under the Acts
relating to the valuation of rateable property
in Ireland at an annual value of more than
one hundred pounds ( 85 ) :
(5.) Where the Court shall be of opinion that in
consequence of its being proved to have been
the practice on the holding, or the estate of
which such holding forms part, for the land-
lord to make such improvements, such pre-
sumption ought not to be made :
33 $ 34 Vic., Cap. 46. 191
(6.) Where from the entire circumstances of the case
the Court is reasonably satisfied that such
improvements were not made by the tenant or
his predecessors in title :
Provided always, that where it is proved to have been
the practice on the holding, or the estate of which such
holding forms part, for the landlord to assist in making
such ( 86 ) improvements, such presumption shall be mo-
dified accordingly.
6. Any landlord or tenant who may be desirous of Permissive regis-
. , i i i tration of
preserving evidence of any improvements made by him- i mpr0 ve-
self or by his predecessors in title before or after the ment3 - ( 87 >
passing of this Act may at any time (subject to the
provisions hereinafter contained) file a schedule in the
Landed Estates' Court specifying such improvements, and
claiming the same as made by himself or his predecessors
in title, and such schedule so filed shall be prima facie
evidence that such improvements were made as therein
mentioned : Provided always, that notice in writing of
the intention to file such schedule, together with a copy
thereof, shall be given by the landlord to the tenant for
the time being of the holding on which such improve-
ments shall have been made (or by the tenant to the land-
lord, as the case may be), within the prescribed time ( M )
before applying to the Landed Estates' Court to file the
same ; and if the person receiving such notice ( 89 ) shall
dispute the claim made by such schedule, either wholly or
in part, he shall be at liberty within the prescribed time
and in the prescribed manner (?) to apply to the Civil
Bill Court to determine the matter in difference, and in
such case such schedule shall not be filed unless or until
leave shall have been given to file the same either in its
original or in any amended form by the Civil Bill Court ;
provided, also, that before filing any such Schedule proof
shall be made in the Landed Estates' Court by statutory
declaration that the notice hereby required has been duly
given, and that no application has been made within the
prescribed time by the party receiving such notice to the
Civil Bill Court, or (if any such application has been
made) that leave has been given by the Civil Bill Court
to file such schedule.
192 The Landlord and Tenant Act, 1870,
Compensation
in respect of
payment to*
in-coming
tenant (91).
7. Where any tenant of a holding does not claim or
has not obtained compensation under sections one, two,
or three of this Act, and it is proved to the satisfaction
of the Court that any such tenant or that his predecessors
in ( 92 ) title on coming into his holding paid money or
gave money's worth ( 93 ) with the express or implied ( 94 )
consent of the landlord ( 95 ) on account of his so coming
into his holding ( 96 ), the Court shall award to such
tenant on quitting his holding in respect of the sum so
paid ( 97 ) such compensation as it thinks just ( 98 ), having
regard to the circumstances of the case ; but such tenant
shall not be entitled to any compensation under this sec-
tion when it appears to the Court that such tenant has
been given permission by the landlord to obtain such
satisfaction from an in-coming tenant in respect of the
money so paid, or the money's worth so given by him,
and on such terms as the Court may think reasonable ("),
and such tenant has refused or neglected to avail him-
self of such permission ; moreover where the money or
money's worth paid or given by any tenant claiming
compensation under this section on coming into his
holding was paid or given in whole or in part in respect
or as covering the value of any improvements on the
holding, care shall be taken that such tenant shall not
receive compensation in respect of the same improve-
ments under this section and also under some other sec-
tion of this Act; provided that out of any moneys
payable to the tenant under this section all sums due ( I0C )
to the landlord from the tenant or his predecessors in
title in respect of rent, or in respect of any deteriora-
tion of a holding arising from non-observance on the
part of the tenant of any express or implied covenant
or agreement, and also any taxes payable by the tenant
due in respect of the holding, and not recoverable
by him from the landlord, may, if not deducted
under the provisions of section four of this Act, be
deducted by or on behalf of the landlord r Provided
always, that this section shall not apply when ( l01 ) such
money or money's worth has been paid during the
1 Misprint for " by."
33 $ 34 F&, Cap. 46. 193
existence of a lease made before the passing of this
Act.
8. Where a holding is proved to be subject to the Compensation in
U Ister tenant-right custom or such usage as aforesaid, n<). p
and where the tenant claims under such custom or
usage, and such custom or usage extends to away-going
crops ( I03 ), the compensation payable in respect of away-
going crops shall be dealt with according to the custom
or usage, but the tenant of every other holding, which
is not proved to be subject to the Ulster tenant-right
custom or such usage as aforesaid, or in respect of
which no claim is made under such custom or usage,
shall, in the absence of any agreement in writing to the
contrary( 104 ), on quitting his holding( 105 ), be entitled to
all ( 106 ) his away-going crops, or, at the option of the
landlord, to be paid the value of the same.
9. For the purposes of this Act ejectment for non- Limitation as to
payment of rent ( 108 ), or for breach of any condition holding (io7>.
against assignment, sub-letting, bankruptcy, or insol-
vency ( 109 ), shall not be deemed disturbance of the
tenant by act of the landlord ; and for the purposes of
this Act a person who is ejected for non-payment of
rent, or for breach of any such condition as aforesaid,
and is not disturbed by act of the landlord within the
meaning of this Act, shall stand in the same position
in all respects as if he were quitting his holding
voluntarily ; provided that in case of a person claiming
compensation on the determination by ejectment for
non-payment of rent of a tenancy existing ( uo ) at the
time of the passing of this Act, and continuing to exist
without alteration of rent up to the time of such deter-
mination, the Court may, if it think fit, treat such
ejectment as a disturbance if the arrear ( M1 ) of rent in
respect of which it is brought did not wholly accrue
withiu the three previous years, and if any earlier
arrear ( 112 ) remained due from the tenant at the time
of commencing the ejectment, or if, in case of any such
tenancy of a holding held at an annual rent not exceed-
ing fifteen pounds, the Court shall certify that the non-
payment of rent causing the eviction has arisen from
o
194 The Landlord and Tenant Act, 1870,
the rent being an exorbitant rent( 113 ); provided that
no tenant who shall have given notice of surrender (" 4 ),
and afterwards refuse to give up possession in pursuance
of such notice, shall be entitled to any compensation
under section three of this Act, though evicted by the
landlord in a suit founded on such notice.
Exception in
case of lands
required for
labourers
cottages (115).
Derivative title
of tenant (124 J.
10. Any landlord may ( u6 ), after six months' ( 117 )
notice in writing ( 118 ) to be served upon the tenant or
left at his house, resume possession from a yearly tenant
of so much land (not to exceed in the whole one twenty-
fifth part of any individual holding) ( ,19 ) as he may
require for the bond fide purpose ( 120 ) of erecting thereon
one or more labourers' cottages, with or without gardens
attached, and such resumption of land shall not, unless
the Court shall be of opinion that same was unreason-
able ( l21 ), be deemed a disturbance ( I22 ) of the tenant
within the meaning of this Act, and shall not subject
the landlord to any claim for compensation, except in
respect of improvements, beyond an abatement of rent
proportionate to the annual value ( 123 ) of the land so
taken by the landlord.
11. For the purposes of this Act a tenant shall be
deemed to have derived his holding ( 125 ) from the pre-
ceding tenant if he has paid to such preceding tenant
any money or given to him any money's worth ( 126 ) in
respect of his holding, or has taken such holding by
assignment or operation of law ( 127 ) from the preceding
tenant ; and where a succession of tenants have derived
title each from the other, the earlier in such succession
shall be deemed to be the predecessor of the later, and
the later in such succession shall be deemed to be the
successor of the earlier.
Partial exemp-
tion of certain
tenancies.
12. A tenant of a holding which is not proved to be
subject to the Ulster tenant-right custom or such other
usage ( 128 ) as aforesaid, whose holding, or the aggregate
of whose holdings ( 129 ), in Ireland is valued under the
Acts relating to the valuation of rateable property in
Ireland at an annual value of not less than fifty pounds,
33 34 Fife., Cap. 46. 195
shall not be entitled to make any claim for compensa-
tion under any provision of this Act in cases where the
tenant has contracted in writing with his landlord that
he will not make any such claim.
13. Where the holding in respect of which com- Restriction as to.
. , . * . compeneation in
pensation is claimed under section three or this Act certain, cases of
is held under a tenancy from year to year existing ( I31 ) assi 8 1Hn ent ( a?) f ,
at the time of the passing of this Act, and such
tenancy is assigned ( 132 ) without the consent ( 133 ) of the
landlord, and the landlord does not accept ( 134 ) the
assignee as his tenant, no compensation shall be pay-
able by the landlord under the said section in any of.,
the cases following :
(1.) Where the rent of such holding is in arreear aft;
the time of such assignment so as to readier the-
tenant liable ( 135 ) to eviction for non-pay-
ment ( l36 ) of rent, and such arrear i* due by
the tenant :
(2.) Where such holding forms part of an estate
upon which the assignment of holdings without
the consent or approval of the landlord is
contrary to or not warranted by the practice
prevalent upon such estate:
(3.) Where the Court shall be of opinion that the
refusal of the landlord to accept such assignee
as tenant is a reasonable refusal t
Provided always, that the transmission of a tenancy by
bequest to the husband or wife> or to any one child or
grandchild, or to any one brother or sister, or to any
one child or grandchild of a brother or sister of the
tenant, or the devolution of a tenancy by operation of
law upon an intestacy or marriage, shall not be deemed,
an assignment within the meaning of this section.
1 4. Where it is proved to the Court that the tenant Eviction in
of any holding held under a tenaney from year to year to'ib^d '"'d D *
existing ( 138 ) at the time of the passing of this Act is disturbance (iw).
evicted by the landlord by reason of the persistent
exercise ( 139 ) by such tenant of any right not neces-
sary ( I4 <>) to the due cultivation of his holding, and
from which such tenant is debarred by express or
implied ( m ) agreement with his landlord, such eviction
196 The Landlord and Tenant Act, 1870,
shall not be deemed a disturbance of the tenant by
the act of the landlord ; or where the tenant of any
holding so held as last aforesaid at the time of the
passing of this Act is evicted by the landlord by reason
of the tenant's unreasonable refusal ( U2 ) to allow the
landlord, or any person or persons authorized by him in
that behalf, he or they making reasonable amends and
satisfaction for any injury to be done or occasioned
thereby, to enter upon the holding for any of the pur-
poses following, that is to say,
Mining or taking minerals ;
Quarrying or taking stone, marble, gravel, sand, or
slate ;
Cutting or taking timber or turf;
Opening or making roads, drains, and watercourses ;
Viewing or examining the state of the holding and
all buildings or improvements thereon ;
Hunting, shooting, or fishing, or taking game or fish ;
Such eviction shall not be deemed a disturbance of the
tenant by the act of the landlord, unless it shall be
shown that the landlord is persisting in such eviction
after such refusal has been withdrawn by the tenant.
Exemption of 15. No compensation shall be payable ( U3 ) under
the preceding provisions of this Act in respect of
(1 .) Any demesne land ( 144 ), or any holding ordinarily
termed " townparks" ( H5 ) adjoining or near to
any city or town which shall bear an increased
value as accommodation land over and above
the ordinary letting value of land occupied as
a farm, and shall be in the occupation of a
personliving in such city ortown, orthesuburbs
thereof, or any holding let to be used wholly
or mainly for the purpose of pasture ( 146 ),
and valued under the Acts relating to the
valuation of property in Ireland at an annual
value of not less than fifty pounds, or any hold-
ing let to be used wholly or mainly for the
purposes of pasture the tenant of which does
not actually reside on the same, unless such
holding adjoins or is ordinarily used with the
33 34 Vic, Cap. 46. 197
holding on which such tenant actually resides :
Provided, that nothing herein contained shall
prevent the tenant of any such holding ( U7 )
making any claim which he otherwise would be
entitled to make under sections four, five, and
seven of this Act ; or,
(2.) Any holding which the tenant holds by reason
of his being a hired labourer or hired servant ;
or,
(3.) Any letting in con-acre or for the purposes of
agistment ( u8 ), or for temporary depasturage;
or,
(4.) Any holding let and expressed in the document
by which it is let to be so let for the temporary
convenience or to meet a temporary necessity
either of the landlord or tenant, and the
letting of which has determined by reason of
the cause having ceased which gave rise to the
letting :
(5.) Any cottage allotment ( ]49 ) not exceeding a
quarter of an acre.
Proceedings in respect of Claims.
1 6. Every tenant entitled under this Act to make Proceedings by
any claim in respect of any right ( ls0 ) or for payment of"claims! respec
of any sums due to him by way of compensation, and
about to quit ( ,M ) his holding, may within the pre-
scribed time ( ,M ) serve a notice ( 153 ) of such claim on
his landlord, or in his absence his known agent ; the
notice shall be in writing in the prescribed form ( 1M ),
and shall state the particulars of such claim, subject to
such amendment as the Court may allow ( I5S ), together
with the dates at which and the periods within which
such particulars are severally alleged to have accrued,
and, where such claim or any part of the same is in
respect of compensation under the provisions of section
three of this Act, the number of years rent claimed
shall be specified.
1 7. On the receipt of the notice the landlord shall Proceedings by
be deemed to have admitted the claim made by the respect of claims,
tenant, unless within the prescribed time ( 156 ) and in
198 The Landlord and Tenant Act, 1870,
the prescribed manner ( 157 ) he serves a notice on the
tenant stating that he disputes the whole or some
portion of the claim made by the latter, and upon
service ( 158 ) of such notice by a landlord on the tenant
a dispute shall be deemed to have arisen between the
landlord and the tenant as to the whole or a portion of
such claim, and such dispute shall be decided by the
Court ( 1M ), unless within the time and in the manner pre-
scribed ( 160 ) in that behalf such dispute shall have been
settled by agreement between the landlord and tenant.
Equities between 18. On the hearing of any dispute ( 161 ) between
tenant. landlord and tenant under this Act either party may
make any claim, urge any objection to the claim of
the other, or plead any set-off such party may think
< fit (including in the case of a landlord any moneys paid
on account of the purchase of the right of the tenant
under the Ulster tenant-right custom or such usage as
aforesaid), and the Court shall take into consideration
any such claim, objection, or set-off, also any such default
or unreasonable conduct ( 162 ) of either party as may
appear to the Court to affect any matter in dispute
between the parties, and shall admit, reduce, or dis-
allow altogether any such claim, objection, or set-off
made or pleaded on behalf of either party as the Court
thinks just, giving judgment on the case with regard
to all its circumstances, including such consideration of
conduct as aforesaid, and the Court shall have jurisdic-
tion at the hearing of any such dispute to ascertain
what sums, if any, shall be deemed due by the tenant to
the landlord ( 163 ) under sections three, four, and seven
of this Act, or any set-off in respect of unliquidated
or liquidated damages under said sections ( I64 ), or any
of them ; and in any case in which compensation shall
be claimed under section three of this Act, if it shall
appear to the Court that the landlord has been and is
willing to permit the tenant to continue in the occupa-
tion of his holding upon just and reasonable terms ( I65 ),
and that such terms have been and are unreasonably
refused by the tenant, the claim of the tenant to such
compensation shall be disallowed
33 34 Vic, Cap. 46. 199
19. In every case of dispute between landlord and Order of Court
tenant heard before the Civil Bill Court, the order jtc.o 66*" ng '
of the Court shall be reduced into writing in the form
of a decree or award (as the case may be), and shall
state the items of claim allowed, that is to say, the
particulars of loss sustained by the tenant in quitting
his holding, and of the improvements and payment to
his predecessor in title in respect to which compensa-
tion may have been awarded to the tenant under the
third, fourth, and seventh sections ( 167 ), and also the
particulars of any set-off, objection, default, or conduct
allowed or taken into account ; such decree or award
to be made in the prescribed form ( 168 ).
20. Where in the case of any holding there are Provision in case
several persons standing in the relation to each other estates in the
of landlord and tenant ( 169 ), and the circumstance of same folding,
any one of such tenants quitting his holding by reason
of disturbance or otherwise involves the interest of
any of such persons other than the tenant quitting
his holding, the Court shall determine the whole
amount payable under this Act on the occasion of
such tenant quitting his holding, and shall direct pay-
ment of the same by such person, and to such one or
more of the persons interested, and in such manner, as
the Court thinks just * provided that this section shall
not affect the Ulster tenant-right custom ( 17 ), or such
usage as aforesaid to which any holding is proved to
be subject.
21. A tenant who may be decided by the Court to Restriction on
be entitled to compensation ( ,71 ) to be paid by any ^j n f
landlord shall not be compelled by process of law to
quit his holding until the amount of compensation
due to him has been paid or deposited in manner
herein-after mentioned. A landlord shall in all cases
have the option of depositing in the manner pre-
scribed ( l72 ) the amount of compensation due ; and
if at any time after the making of a claim for compensa-
tion as hereinbefore directed, and before finally giving up
possession of his holding, a tenant shall be alleged to
200 The Landlord and "Tenant Act, 1870,
have done any damage to his holding, or the buildings
thereon, the Court shall inquire ( 173 ) into the same, and
allow to the landlord out of the money so deposited
such compensation as it may deem just, including mesne
rates. In no case shall a tenant, except by special leave
of the Court, be entitled to receive the money so
deposited until he shall have given up possession of his
holding. Where compensation is awarded ( 174 ) in re-
spect of any holding to be paid by any landlord who is
himself a tenant of such holding, the tenant to whom
such compensation is awarded shall not by reason of
such compensation not being paid or deposited in
manner aforesaid by such landlord be entitled under this
section, as against a superior landlord not liable to such
compensation, to retain possession of the holding after
the expiration or determination of the title thereto of
the landlord by whom such compensation was so
awarded to be paid as aforesaid.
Court to award Compensation.
22. For the purposes of this part of this Act the
Court shall mean one or other of the tribunals fol-
lowing ; that is to say,
The Civil Bill Court of the county where the matter
requiring the cognizance of the Court arises ( I75 ) ;
or,
The Court of Arbitration constituted as in this Act
mentioned,
Where a matter requiring the cognizance of the Court
arises in respect of a holding situate within the jurisdic-
tion of more than one Civil Bill Court, any Civil Bill
Court within the jurisdiction of which any part of the
holding is situate may take cognizance of the matter.
Civil Bill Court. 23. The judge of the Civil Bill Court (herein-after
called the chairman) shall in all cases brought
before him under the provisions of this Act have
power to take evidence upon oath, and to compel the
attendance of witnesses, and shall have all and the
same powers, jurisdiction, and authority as in cases of
Civil Bill ejectment coming within his jurisdiction as
Court to mean
Civil Bill Court
or Court of
Arbitration.
33 34 Vic., Cap. 46. 201
such judge : Provided always, that the judge shall him-
self without a jury decide any question of fact arising
in any case brought before him under this Act.
The chairman may, with the consent of both parties,
hear and determine any case brought before him under
this Act in chamber, if he so thinks fit, and when so
sitting in chamber he shall have all and the same powers,
jurisdiction, and authority in respect to cases so heard
as if sitting in open court.
The chairman may, within the prescribed time ( ,76 )
after making any order, review or rescind or vary any
order previously made by him, but, save as aforesaid,
and as provided by this Act with respect to appeal, every
order of the Civil Bill Court shall be final.
Any order made by the chairman under this Act may
be enforced by attachment ( 177 ) or otherwise ( 178 ) in the
same manner as if it were the order of any of the
superior courts of common law at Dublin, and if such
order made by the chairman be for the payment of
money, it may ( 179 ) also be enforced in the same manner
as civil bill decrees for money demands made by such
chairman.
24. Any person aggrieved ( 180 ) by any order of the Appeal from
chairman made under this Act may, within the pre- m ' our '
scribed time ( I81 ) and in the prescribed manner ( 182 ),
appeal therefrom in manner following ; that is to say,
(1.) Where such order has been made in the county
or the county of the city of Dublin, to two
judges of the superior courts of common law
to be from time to time selected by the Court
for Land Cases reserved ( 183 ) :
(2.) Where such order has been made elsewhere, to
the judges of assize of ( 184 ) the county in which
such order has been made :
And every such appeal may be heard and determined
by one of the said judges ; but in case any question of
law shall arise upon any such appeal, the judge before
whom such question arises may, if he thinks fit, require
that the same shall be heard and determined by both
the said judges, and thereupon such question shall be
202 The Landlord and Tenant Act, 1870,
heard and determined by both the said judges, who
shall for such purpose sit together.
The judge or judges hearing such appeal may give
judgment affirming, reversing, or modifying the order
appealed from, and may finally decide thereon, and
make such order as to costs in the Court below and of
the appeal as may be agreeable to justice ; and if the
judge or judges alter or modify the order, such order so
altered or modified, and signed by the judge or judges,
shall be of the like effect as if it were the order of the
Civil Rill Court. The judge or judges may also, in cases
where he or they think it expedient so to do, instead
of making a final order, remit the case, with such direc-
tions as he or they may think fit, to the Court below.
The judges to whom any such appeal may be made
may, where they deem it expedient, reserve any matter
or question arising upon such appeal by way of case
stated for the consideration of the Court for Land Cases
reserved at Dublin.
The Court for Land Cases reserved at Dublin shall,
for the purposes of this Act, be constituted in manner
following; that is to say, the Lord Chancellor, the
Master of the Rolls, the Lord Justice of Appeal, the
Vice-Chancellor, and all the judges of the Common
Law Courts shall be judges of the said Court for Land
Cases reserved, and any five of such judges, the Lord
Chancellor or Master of the Rolls, or Lord Justice of
Appeal, or the Vice-Chancellor or one of the chief
judges of the Common Law Courts being one, shall
have power to hear and determine any matters that shall
be brought before the said Court.
The officers of the Court of Exchequer Chamber shall
act as officers of the Court for Land Cases reserved.
All cases referred to the Court for Land Cases re-
served shall be prosecuted, heard, and determined by
such Court in such manner and form and subject to such
rules and regulations as the said Court may from time
to time by rule direct.
The Court for Land Cases reserved shall give such
judgment as ought to have been given in the Court
below by the judges thereof, and such judgment shall
33 $ 34 Vic., Cap. 46. 203
be of the like effect as if it were the judgment of the
said judges, or the Court of Land Cases reserved may
remit the case, with such directions as they think fit, to
the Court below.
25. Where the parties to any such dispute as afore- ourt of Arbitra-
said respecting any holding are desirous that such
dispute should be settled by arbitration, they shall, in
the prescribed manner ( 185 ) and within the prescribed
time ( I86 ), refer the same to an arbitrator or arbitrators,
with an umpire to be appointed in manner appearing
in the schedule annexed hereto, and the tribunal so
selected shall be deemed in respect of such dispute the
Court of Arbitration under this Act.
The Court of Arbitration shall, in all cases brought
before it under this Act, have all and the like powers,
jurisdiction, and authority as a Civil Bill Court under
this Act, with this exception, that the Court of Arbi-
tration shall have no power to punish persons for con-
tempt, or to enforce its awards ; but it may report to
the Civil Bill Court the name of any person refusing to
give evidence, or to produce documents, or guilty of
contempt of the Court when sitting judicially ; and the
Civil Bill Court may, upon such report, punish the
offender in the same manner as if the offence had been
committed in, or in respect of a matter under the cogni-
zance of the Civil Bill Court.
The award of the Court of Arbitration may, at the
instance of either party, be recorded in the prescribed
manner ( I87 ) and within the prescribed time in the Civil
Bill Court, and when so recorded shall be enforceable
as if the same were an order of said Court.
No such award shall, so far as relates to the dispute
under this Act, be held to be invalid by reason of the
violation of or non-compliance with any technical rule of
law respecting awards, where such award substantially
decides the dispute referred to the Court of Arbitra-
tion.
No appeal shall lie from an award of the Court of
Arbitration, nor shall any such award be removable
by certiorari.
204 The Landlord and Tenant Act, 1870,
Powers of limited Owners.
interpretation of 26. The expression "limited owner" shall in this
"limited owner." . , ,.
Act mean as follows :
(1.) Any person entitled under any existing or future
settlement at law or in equity, for his own
benefit and for the term of his own life, to the
possession or receipt of the rents and profits of
land, whether subject or not to incumbrances,
in which the estate for the time being subject
to the trusts of a settlement is an estate for
lives or years renewable for ever, or is an
estate renewable for a term of not less than
sixty years, or is an estate for a term of years
of which not less than sixty are unexpired,
or is a greater estate than any of the foregoing
estates :
(2.) Any body corporate, any corporation sole, eccle-
siastical or lay, any trustees for charities, and
any commissioners or trustees for ecclesiastical,
collegiate, or other public purposes, entitled at
law or in equity, in the case of freehold land,
to an estate in fee simple or in fee farm, and
in the case of leasehold land to a lease for an
unexpired residue of not less than thirty-one
years, or for a term of years or of lives renew-
able for ever, or renewable for a period of not
less than thirty-one years ( 188 ).
Agreement by 27. A landlord, being a limited owner ( 189 ), shall
have power to agree with a tenant as to the amount of
compensation payable to him under this Act, and on
payment of the same to the tenant may apply ( 190 ) to
the Civil Bill Court for an order ( ,91 ) charging the
holding with an annuity in respect of such payment ;
and the Court, upon being satisfied of such payment
having been made, shall charge the holding with an
annuity of five pounds for every one hundred pounds of
the sum so paid to the tenant, and so on in proportion
for any less sum, such annuity to be limited in favour
of the limited owner, his executors, administrators, and
assigns, and to be payable for a term of thirty-five
33 (J- 34 Vic, Cap. 46. 205
years on the anniversary of such date ; provided that
no such order shall be made by the Court unless notice
of the application for the same shall have been given in
the prescribed form ( 19la ) to the person for the time being
entitled to the first estate of inheritance, if any, expectant
upon the determination of the estate of the limited
owner, or if 'such person shall be a married woman,
infant, or lunatic, to his or her husband, guardian, or
committee respectively. Any annuity created under
this section shall be a charge upon the holding having
priority over all estates and interests subsequent to the
estate or interest of the limited owner, but subject to
any estates, mortgages, or other interests having priority
over or charged on the estate of the limited owner.
28. Any limited owner shall have power to grant Power of limited
agricultural leases for any term of years absolute, or leases.
determinable at fixed periods, subject to the following
restrictions :
(J.) The term of any lease shall not exceed thirty-
five years ( 192 ) :
(2.) The power of leasing conferred by this Act shall
not include any mansion house or demesne
lands :
(3.) The lease shall take effect in possession, or within
one year after the execution thereof, and not
in reversion, and there shall be reserved thereby
a fair yearly rent ( 193 ) to be incidental to the
immediate reversion of the holding, without
taking anything in the nature of a fine,
premium, or foregif t ; and in estimating such
yearly rent it shall not be necessary to take
into account against the tenant the increase
(if any) in the value of the holding arising
from any improvements executed by him or
his predecessors in title :
(4.) The lease shall imply a condition of re-entry for
non-payment of the rent thereby reserved :
(5.) The lease, if it includes any building, shall con-
tain a clause declaring whether the landlord
or the tenant is bound to rebuild such building
206 The Landlord and Tenant Act, 1870,
in the case of the same being destroyed during
any part of the tenancy by fire, lightning, or
tempest, and whether the landlord or the
tenant is bound to keep the same in repair :
(6.) The lessee shall execute a counterpart of every
lease, and shall thereby covenant for the due
payment of the rent reserved :
Upon the application of any landlord ( 194 ) or tenant the
Civil Bill Court may confirm any lease granted or pro-
posed to be granted under this Act, and such Court
may, if it thinks just, confirm ( 195 ) or refuse to confirm
such lease with or without modifications, and the con-
firmation of any such lease shall be deemed conclusive
evidence of the lease being within the powers of this
Act ; the confirmation of a lease shall be certified in the
prescribed manner ( ,96 ).
Effect of lease by 29. Any lease granted in pursuance of this Act by
an individual limited owner shall be valid against the
person granting the same, and against all persons
entitled to any estate or interest subsequent to the
estate or interest of such limited owner ; and any lease
granted in pursuance of this Act by any limited owner,
being a body corporate, corporation sole, trustees for
charities, commissioners or trustees for ecclesiastical,
collegiate, or other public purposes, shall bind all the
estate and interest of such last-mentioned limited owner ;
but no lease granted by an owner holding himself under
a lease shall continue after the expiration of the term
granted by such owner's lease.
Leasing powers 30. All powers of leasing given by this Act shall be
cumulative? deemed to be in addition to any other powers any
limited owner may possess, and such owner may
exercise any other power of leasing vested in him in the
same manner as if this Act were not passed.
Rules for 31. The Court for Land Cases Reserved, or any five
paruif Actlnto of the judges of the said Court (the Lord Chancellor or
effect. Master of the Rolls, Lord Justice of Appeal or Vice-
Chancellor, or one of the Chief Judges of the Common
33 & 34 Vic., Cap. 46. 207
Law Courts being one), may from time to time make,
and when made may rescind, annul, or add to, rules
with respect to the following matters :
(1.) The proceedings in the Civil Bill Court and
Court of Arbitration under this part of this
Act:
(2.) The proceedings in Appeals under this part of
this Act :
(3.) The proceedings in Land Cases reserved under
this part of this Act :
(4.) The circulation of forms and directions as to the
mode in which this part of this Act is to be
carried into execution :
(5.) The scale of costs and fees to be charged in
carrying this part of this Act into execution,
and the taxation of such costs and fees, and
the persons by or from whom and the man-
ner in which such costs and charges are to be
paid or deducted, subject nevertheless to the
sanction of the Treasury as to the amount of
fees to be charged :
(6.} The service of notices on incumbrancers and
other persons interested, and any other matter
by this part of this Act directed to be pre-
scribed !
(7.) As to any other matter or thing, whether similar
or not to those above mentioned, in respect of
which it may be expedient to make rules for
the purpose of carrying this part of this Act
into effect :
Any rules made in pursuance of this section shall be
deemed to be within the powers conferred by this Act,
and shall be' of the same force as if enacted in this Act,
and shall be judicially noticed :
Any rules made in pursuance of this section shall be
laid before Parliament within three weeks after they are
made if Parliament be then sitting, and if Parliament
be not then sitting, within three weeks after the begin-
ning of the then next session of Parliament.
208 The Landlord and Tenant Act, 1870,
PART II.
Sale of Land to Tenants.
" the Court * for 32 ' SuD J ect to tQ e restrictions hereinafter mentioned,
sale to tenant of the landlord and tenant of any holding ( 197 ) in Ireland
may agree for the sale of the holding to the tenant at
such price as may be fixed between them; and upon
such agreement ( 198 ) being made they may jointly, or
either of them may separately with the assent of the
other, apply ('") to the Landed Estates Court, in this
part of this Act referred to as "the Court," for the
sale to the tenant of his holding.
Restrictions on 33. No sale shall be made under this part of this
mg. ^ c j. un j esg t h e i an di or( i (200^ j g ^ absolute owner of
the land which forms the holding of the tenant, or
such tenant for life or other limited owner as is in this
section mentioned.
u Absolute owner " shall in the case of freehold land
mean the owner in fee simple or in fee farm, or person
capable of appointing or disposing of the fee, whether
subject or not to incumbrances, and in the case of
leasehold land mean the owner or person capable of
disposing of the whole interest in the lease under which
the land is held, whether subject or not to incum-
brances.
No holding of leasehold tenure shall be sold under
this part of this Act unless the lease under which the
landlord is possessed of the land which forms the holding
is a lease for lives or years renewable for ever, or a lease
for a term of years of which not less than sixty are
unexpired at the time of the sale being made ; and no
sale shall be made under this part of this Act by a
landlord being the owner of a leasehold under a lease
containing a prohibition against alienation unless such
prohibition has determined or is waived.
33 34 Vic, Cap. 46. 200
M Tenant for life " shall, for the purposes of this part
of this Act, mean any person entitled under any existing
or future settlement at law or in equity for his own
benefit and for the term of his own life to the possession
or receipt of the rents aod profit of land, whether sub-
ject or not to incumbrances, in which the estate for the
time being, subject to the trusts of the settlement, is an
estate in fee simple or fee farm, or a lease of such
duration as is in this section mentioned.
" Other limited owner " shall mean any body corpo-
rate, any trustees for charities, and any commissioners
or trustees for collegiate or other public purposes, having
an estate in fee simple or fee farm, or possessed of such
leasehold as is in this section mentioned, whe'ther subject
or not to incumbrances.
34. The application shall be accompanied by a ^***ffi | sale of
deposit ( 201 ) of such sum (if any), to be deposited by the Court.
landlord by way of security for costs as the Court may
require. Upon the foregoing conditions being com-
plied with, the Court shall make such inquiries as to
the circumstances of the holding in respect of which the
application is made, and as to the parties interested
therein, either as incumbrancers, owners, or otherwise,
and as to the sufficiency of the price and of the capacity
of the landlord to sell the same, as the Court may
think fit, and if the Court approve of the application it
shall carry such sale into effect accordingly, and execute
the necessary conveyance ( 202 ) to the tenant.
35. The conveyance by the Court under this part of Estate of pur-
this Act of a holding to a tenant shall in the case of from incum-
freehold land confer on the tenant an estate in fee simple rance8,
or fee farm, as the case may be, in such holding, together
with all rights, privileges, and appurtenances enjoyed or
reputed as belonging or appertaining thereto, subject to
such charges and interests, if any, as are in this part of
this Act declared not to be incumbrances, and in the case
of estates in fee farm to the rents, covenants, and con-
ditions expressed in the grant relating to the land of
which the holding forms the whole or part, and on the
210 The Landlord and Tenant Act, 1870,
part of the grantee, his heirs, executors, administrators,
and assigns, to be paid, observed, and performed, but
free from all other estates, incumbrances, and interests
whatever, and shall in the case of leasehold land vest the
holding in the tenant for the period, and subject to the
rents, covenants, and conditions, expressed in the lease
relating to the land of which the holding forms the
whole or part, and on the part of the lessee, his execu-
tors, administrators, and assigns to be paid, observed,
and performed, subject to such charges and interests,
if any, as are in this part of this Act declared not to be
incumbrances, but free from all other incumbrances and
estates whatsoever.
Certain charges
not incum-
brances.
36. The following charges and interests shall not be
deemed incumbrances within the meaning of this part of
this Act ; that is to say,
(1.) Quitrents and rentcharges in lieu of tithes :
(2.) Rights of common, rights of way, watercourses,
and rights of water and other easements ( 203 ) :
(3.) Heriots, manorial rights of all descriptions, and
franchises :
(4.) Charges for drainage, or other charges created
under Act of Parliament, and to be specified
in the conveyance :
And every holding sold under this part of this Act
shall, unless the contrary is expressed, be deemed to be
subject to such of the above charges and interests as
may be for the time being subsisting thereon.
As to the distri-
bution of pur-
chase money.
37. The Court shall determine the rights and priori-
ties of the several persons entitled to or having
charges upon or otherwise interested in any holding
sold in pursuance of this Act, and shall distribute the
purchase money ( 204 ) in accordance with such rights and
priorities.
Where any moneys arising from a sale under this part
of this Act are not immediately distributable ( 205 ), or
the parties entitled thereto cannot be ascertained, or
where from any other cause the Court thinks it
33 <* 34 Vic, Cap. 46. 211
expedient for the protection of the rights of the parties
interested, the Court may order the moneys to be lodged
in Court or in the prescribed bank to the prescribed
account, and may by its order declare the trusts
affecting such moneys, so far as the Court has ascer-
tained the same, or state the facts or matters found by
it in relation to the rights and interests in such moneys ;
and the Court may from time to time make such orders
in respect to any such moneys, and the investment or
application thereof, or the payment thereof to the
parties interested, as the circumstances of the case may
require.
38. There shall be charged, in respect of any sale Costs of sale,
made in pursuance of this part of this Act, such
per-centage fee on the price paid as the Treasury may
prescribe, and the fees so charged shall be paid in
to the receipt of Her Majesty's Exchequer, and carried
to the account of the Consolidated Fund of the United
Kingdom of Great Britain and Ireland.
39. Where any purchase moneys have been so lodged Cost of distnbu-
. ^ -i :> i i , i, , tion of purchase-
in Court or in the prescribed bank, provision shall be money.
made in the prescribed manner with the sanction of the
Treasury for the payment without cost ( 206 ) to the
persons entitled to any estate or interest in or having
charges upon the holding so sold of any principal or
interest moneys to which such persons may be entitled
in respect of such estate and interest : Provided that
any provision so made shall not extend to any expense
caused by disputed titles, or any expense incurred by
the failure of any person to comply with the rules for
the time being in force relating to the distribution of
such purchase moneys.
40. The Court shall have full power to apportion General powers
, , , , . , ,, . of Court in con-
Charges, rents, and covenants, and decide all questions duct of sale of
whatsoever, which it may be necessary to decide for and "
the purposes of this Act, and shall not be subject to be
restrained in the due execution of their powers under
this Act by the order of any Court.
212 The Landlord and Tenant Act, 1870,
Kuies for carry- 41. The Privy Council in Ireland may from time to
of this Act into time make, and when made may rescind, annul, or add
e ' to, rules with respect to the following matters :
(1.) The proceedings to be had under this part of
this Act :
(2.) The circulation of forms and directions as to the
mode in which this part of this Act is to be
carried into execution :
(3.) The scale of costs and fees to be charged in
carrying this part of this Act into execution,
and the taxation of such costs, and the persons
by whom such costs and fees are to be paid, sub-
ject nevertheless to the sanction of the Treasury
as to the amount of fees to be charged :
(4.) The giving of notices to incumbrancers and
other persons interested, and the service of
such notices and any other matter by this
part of this Act directed to be prescribed :
(5.) As to any other matter or thing, whether similar
or not to those above mentioned, in respect of
which it may be expedient to make rules for
the purpose of carrying this part of this Act
into execution :
In framing rules under this section the Privy Council
shall provide that notice of any sale to be made under
this part of this Act shall be served upon every registered
incumbrancer by sending it through the post in a pre-
paid letter addressed to such incumbrancer, and in
proving service of any such notice it shall be sufficient
to prove that such notice was properly directed to the
incumbrancer at his last known place of abode, and that
it was put as a prepaid letter into the post office.
Any rules made in pursuance of this section shall be
deemed to be within the powers conferred by this Act,
and shall be of the same force as if enacted in this Act,
and shall be judicially noticed.
Any rules made in pursuance of this section shall be
laid before Parliament within three weeks after they are
made, if Parliament be then sitting, and if Parliament
be not then sitting, within three weeks after the begin-
ning of the then next session of Parliament.
33 $ 34 Vic, Cap. 46. 213
PART III.
Advances by and Powers of Board.
42. Where any sums are due in respect of compensa- |j33far
tion under this Act from a landlord to a tenant who compensation for
is quitting his holding, but has not been disturbed ( 2o7 ) improvem
by his landlord, the Commissioners of Public Works in
Ireland, in this Act referred to as the Board, may,
upon the application of such landlord, advance to the
tenant on behalf of the landlord the whole or such
portion of the sum so due as they may think expedient,
and upon an order ( 208 ) being made to that effect by
the Civil Bill Court, and upon such advance being
made by the Board, such holding shall be deemed to
be charged with an annuity of five pounds for every one
hundred pounds of such advance, and so in propor-
tion for any less sum, such annuity to be limited in
favour of the Board, and to be declared to be payable
within a term of thirty-five years ( 209 ).
43. The Board may from time to time upon such ^ndtonisfor
security as they may approve advance such sums as improvement of
they may think fit to any landlord in Ireland for the
purpose of enabling him to reclaim waste lands ( 210 ) ;
and where any landlord has contracted for the sale
of any waste land the Board may advance upon
security jointly given by the vendor and purchaser
such sums as they may think fit, not exceeding a
moiety of the purchase-money contracted to be paid ;
and such waste land, and any other lands included in any
such security, shall, upon an order ( 2U ) being made
to that effect by the Civil Bill Court, and upon such
advance being made by the Board, be deemed to be
charged with an annuity of five pounds for every one
214 The Landlord and Tenant Act, 1870,
Advances to
tenants for
purchase of
holdings.
hundred pounds of such advance, and so in proportion
for any less sum, such annuity to be limited in favour
of the Board, and to be declared to be repayable within
a period of thirty -five years ( m ).
44. The Board, if they are satisfied with the
security, may advance to any tenant for the purpose
of purchasing his holding in pursuance of this Act any
sum not exceeding two-thirds of the price of such
holding, and upon an order being made by the Civil
Bill Court to that effect, and upon such advance being
made by the Board, such holding shall be deemed to be
charged with an annuity of five pounds for every one
hundred pounds of such advance, and so in proportion
for any less sum, such annuity to be limited in favour
of the Board, and to be declared to be repayable in
the term of thirty-five years.
No purchaser, or person deriving title through him,
of any holding to whom any advance has been made
under this section shall, without the consent of the
Board, alienate ( 213 ), assign, subdivide, or sublet his
holding during such time as any part of the annuity
charged on such holding remains unpaid, and any
part of sucb holding alienated, assigned, subdivided,
or sublet in contravention of this section shall be
forfeited to the Board, to be held by them for public
purposes.
Advances to
tenants for pur-
chases of hold-
ings in Landed
Estates' Court.
45. Where an absolute order for the sale of any
estate has been made by the Landed Estates' Court,
and the tenant of any holding forming part of such
estate is desirous to purchase such holding, he may
apply to the Board in the prescribed manner to advance
any sum not exceeding two-thirds of the amount he
may pay for the purchase of the same, and the Board
may, subject to such conditions as to the price to be
paid for such holding and to any matter relating to
such purchase, as they think fit, agree with such tenant
to make such advance.
When any such tenant has been declared the pur-
chaser of a holding, and has paid one-third or any
33 34 Vic, Cap. 46. 215
greater part of the purchase-money, the Board may pay
the balance ot such purchase-money instead of such
tenant, and upon such payment being made by the
Board the Landed Estates' Court shall by order declare
such holding to be charged with an annuity of five
pounds for every hundred pounds of such advance, and
so in proportion for any less sum, such annuity to be
limited in favour of the Board, and to be declared to be
repayable in the term of thirty-five years.
Any holding charged by order of the Landed Estates'
Court in manner aforesaid shall not, without the consent
of the Board, be alienated ( 2U ), assigned, subdivided,
or sublet during such time as any part of the annuity
charged on such holding remains unpaid, and any
part of such holding alienated, assigned, subdivided,
or sublet in contravention of this section shall be
forfeited to the Board, to be held by ithem for public
purposes.
46. The Landed Estates' Court shall on the sale Landed Estates
. . C ourt to afford
of estates by said Court, so tar as is consistent with facilities for
the interests of the persons interested in the estates occupying by
or the purchase- money thereof, afford, by the forma- tenants.
tion of lots for sale or otherwise, all reasonable facilities
to occupying tenants desirous of purchasing their
holdings under the provisions of this Act, and
for that purpose shall hear any application ( 2l5 ) in
that behalf made by the Board or any such occupying
tenant.
47. Where the landlord of an estate is willing to Advances to
contract for the sale under the second part of this Act eham of entire
of his estate in its entirety but not in part, and the estates.
tenants of the holdings comprising four-fifths in value
of such estate are willing to purchase their holdings,
and other purchasers ( 216 ) can be found to buy the
residue of such estate, and to pay one-half of the
purchase-money payable in respect of such residue,
such sale may be made accordingly under the second
part of this Act in the same manner as if the whole
of the purchasers of the estate were tenants of the
216 The Landlord and Tenant Act, 1870,
landlord, and the Board may advance to such other
purchasers one-half of their purchase-money upon
the security of the residue of the estate, and such
advance may, at the discretion of the Board, be
made to such purchasers collectively on the security
of the whole of the residue of such estate, or to
such purchasers severally on the security of the por-
tions bought by them respectively, or partly in one
way and partly in the other. Where any advance
is made to purchasers or a purchaser under this
section, the land bought by such purchaser or pur-
chasers shall, on an order ( 2I7 ) made to that effect by
the Civil Bill Court, be charged with an annuity of
five pounds for every one hundred pounds of such
advance, and so in proportion for any less sum, such
annuity to be limited in favour of the Board, and to
be declared to be repayable within the term of thirty-
five years.
Advances 49. Every annuity ( 218 ) created in favour of the
charged on . ,
estate by way of Board in pursuance of this Act shall be a charge on
the land subject thereto having priority over all exist-
ing and future estates, interests, and incumbrances,
with the exception of quit-rents and other charges
incident to the tenure, to rent-charges in lieu of tithes,
and any charges created under any Act authorizing
advance of public money, or under any Act creating
charges in respect of improvements on lands, and
passed before this Act, with the exception also (in
cases where the lands are subject to a fee-farm rent,
or held under a lease reserving rent) of such fee-
farm rent or rent reserved as aforesaid. The term
during which every such annuity shall be payable
shall be computed from the date of the advance in
respect of which the same shall be charged, and
every such annuity shall be payable in equal half-
yearly payments on every first day of May and every
first day of November during the said term of
thirty-five years with such apportionment, if any, as
may be necessary in respect of the first and last of
such payments.
33 34 Vic, Cap. 46. 217
49. Every annuity created in pursuance of this Act Recovery of
shall be recoverable by the Board or by or in the
name of the Attorney- General for Ireland in manner
in which rent-charges in lieu of tithes are recover-
able in Ireland ; a certificate purporting to be under
the hand of a member for the time being of the Board
shall be evidence that the amount of any annuity or
arrears of annuity stated therein to be due under this
Act from any person named therein is due to the Board
from such person.
50. No arrears of any annuity charged on land in Arrears of
* annuity,
pursuance of this Act shall be recoverable after the
expiration of two years from the date at which the
sum in arrear became due; and as between owners
having successive interests in any land so charged it
shall be the duty of the owner for the time being in
possession or in receipt of the rents and profits of
such land to prevent such arrears arising, and if he
make default in doing so, and the owner next entitled
in possession pay any arrears caused by such default,
the amount so paid shall be a debt due to the owner
who has paid the same from the owner by whose default
it became necessary to make such payment.
51. Where any land is charged with an annuity in Power of owner
favour of the Board, it shall be lawful for any person annuity,
liable to pay such annuity to redeem the said annuity,
or so much thereof as may at any time remain un-
expired by payment to the Board of a sum of money
equivalent to the then value of the said annuity, such
value to be calculated according to the table in the
schedule annexed hereto.
52. Where any person is entitled to receive any Power of Board
* * . , to commute and
principal moneys in pursuance or the sale of any compromjse.
holding made by them in pursuance of this Act,
the Board may, on the application of such person,
commute (* 19 ) such principal moneys for the payment
of an annuity of equivalent value, the value of money
being reckoned at three pounds ten shillings per cent.
218 The Landlord and Tenant Act, 1870,
per annum ; and where any such person as aforesaid
is entitled to the payment of a sum annually, the
Board may commute the same for the payment of
a principal sum of equivalent value, the value of
money being reckoned at three pounds ten shillings
per cent, per annum.
The Board may also, with the assent of the claimant,
compromise by the payment of any principal or annual
sum any postponed contingent or doubtful or other
claim of any person to any share or interest in the
purchase money arising from the sale of any holding
under this Act.
Control of Board 53. The Board shall in making advances, in the
y easury, c. moc j e f investing and dealing with the funds that
come into their possession, and in the mode of account-
ing for the same, and generally in the performance of
their duties under this Act, conform to any directions,
whether given on special occasions or by general rule
or otherwise, which may from time to time be given
to them by the Treasury, and shall report within such
time and in such manner as the Treasury may direct
to the Treasury all matters which may be transacted by
the Board.
As to issues of
moneys to the
Board by
Treasury.
54. There shall be issued to the Board for the
purposes of this Act, at such times and in such sums
and in such manner as the Treasury may determine,
any sums of money not exceeding in the whole one
million pounds, and the Treasury may from time to
time issue to the said Board the said sum of one
million pounds out of the Consolidated Fund or the
growing produce thereof.
Repayment to
Consolidated
Fund of moneys
adranced.
55. All repayments to the Board of principal sums
or by way of annuities in respect of advances made
by them shall from time to time be paid back to the
Consolidated Fund in such manner as the Treasury
may direct.
33 34 Vic, Cap. 46. 219
56. The Civil Bill Court shall, on the application of Duty of Civil
... .',.,,. . Bill Court as to
any person entitled to an annuity by this Act directed charging orders,
to be charged by order of the Civil Court, make an
order charging the same accordingly, and the clerk of
the peace of the county in which such Court has juris-
diction shall keep an alphabetical registry in his office
of all charging orders so made by the Court, and shall
allow any person to inspect the same at all reasonable
times on the payment of one shilling.
For the purpose of making charging orders in respect
of any holding the Civil Bill Court of the county in
which such holding or any part thereof is situate shall
be deemed to have jurisdiction over such holding.
220 The Landlord and Tenant Act, 1870,
PART IV.
Supplemental Provisions.
As to Legal Proceedings and Court.
JSStoSf 57> There sha11 be P aid in res P ect of every notice
to quit to be served on a tenant of a holding as defined
under this Act a duty of two shillings and sixpence, and
such payment shall be denoted by a stamp on the
notice ( 220 ).
Regulations as to 58. No notice to quit ( 221 ) shall be valid unless it is
o qm . p rm t e( j or -written ( 222 ), or partly in print or partly in
writing, and signed by the landlord or his agent law-
fully authorized ( 223 ) thereunto, nor unless such notice
at the time of the service thereof is duly stamped with
a stamp denoting the payment of a duty of two
shillings and sixpence. A notice to quit shall not in
the case of a tenant from year to year take effect ( 224 )
until after the expiration of a period of not less than six
calendar months ( 22S ) from the date of the service of
the notice, such period of six calendar months, in the
absence of agreement to the contrary ( 226 ), to terminate
on the last gale day of the calendar year ( i27 ). Any
person serving on a tenant a notice to quit that is not
in conformity with this section shall incur a penalty not
exceeding forty shillings, to be recovered summarily
under the provisions ( 228 ) of the Petty Sessions (Ireland)
Act, 1851.
In any proceedings between landlord and tenant,
where the due service of a notice to quit has been
proved, such notice to quit shall, until the contrary is
proved, be deemed to have been duly stamped.
Administration 59. The Civil Bill Court in any county on being
tenant' 11 satisfied that a tenant in such county has died, and that
there is no legal personal representative of such tenant
or no legal personal representative whose services are
available for the purposes of this Act, may, if a legal
representation of the tenant is required for the purposes
of this Act, by order appoint such person as it thinks
best entitled to be administrator of the deceased tenant
33 $ 34 Vic, Cap. 46. 221
limited to the purposes of this Act, and any such limited
administrator ( 229 ) shall for all the purposes of this
Act represent the deceased tenant in the same manner
as if the tenant had died intestate, and administration
had been duly granted to such limited administrator of
all the personal estate and effects of the tenant.
60. A married woman entitled to her separate use, Provision as to
and not restrained from anticipation, shall for the
purposes of this Act be deemed a feme sole, but
where any other married woman is desirous of making
any application giving any consent, or doing any act,
or becoming party to any proceeding under this Act,
in relation to any holding, her husband's concurrence
shall be required, and she shall be examined by the
Civil Bill Court of the county where she may for the
time being be, or of the county where the holding is
situate, apart from her husband touching her know-
ledge of the nature and effect of the application or other
act, and it shall be ascertained that she is acting freely
and voluntarily.
61. Where any person who (if not under disability) ^Jr^eraras
might have made any application, given any consent, under disability.
done any act, or been party to any proceeding in
relation to any holding under this Act, is a minor,
idiot, or lunatic, the guardian or committee of the
estate respectively of such person may make such
applications, give such consents, do such acts, and
be party to such proceedings, as such person respec-
tively, if free from disability, might have made, given,
done, or been party to, and shall otherwise represent
such person for the purposes of this Act; where
there is no guardian or committee of the estate of
any such person as aforesaid, being infant, idiot, or
lunatic, or where any person the committee of whose
estate if he were idiot or lunatic would be authorized to
act for and represent such person under this part of
this Act is of unsound mind or incapable of managing
his affairs, but has not been found idiot or lunatic under
an inquisition, it shall be lawful for the Civil Bill Court
222 The Landlord and Tenant Act, 1870,
of the county in which the holding is situate to appoint
a guardian of such person for the purpose of any pro-
ceedings under this part of this Act, and from time to
time to change such guardian ; and where such Civil
Bill Court sees fit it may appoint a person to act as the
next friend of a married woman for the purpose of any
proceeding under this Act, and from time to time to
remove or change such next friend.
Additional g2. For the purposes of carrying into effect the pro-
Bill Court. visions of this Act the judges of Civil Bill Courts in
Ireland shall, in addition to the Civil Bill Courts now
by law directed, hold such Courts in such places within
their respective jurisdictions as may be prescribed by
the Privy Council in Ireland.
41fries n to judges 63 ' Tbere sha11 be P aid to the J ud S eS and fficerS
and officers of of the Civil Bill Courts and to the officers of the
Court of Exchequer Chamber in Ireland, by way of
remuneration for the additional duties by this Act
imposed upon them, such annual sums by way of addi-
tional salaries respectively as the Lord Lieutenant may
direct and the Commissioners of Her Majesty's Trea-
sury may approve, and all such sums shall be paid by
the said Commissioners out of moneys to be provided
by Parliament for that purpose.
Power to appoint (54, j n case it shall appear to the Lord Chancellor
a substitute in rr ,
Civil Bill Court that from any reasonable cause the judge 01 any Civil
attenl 6 CanDOt Bm Court cannot conveniently hold the Courts pre-
scribed under this Act, he may appoint any other
judge of a Civil Bill Court to hold such Courts in his
stead, and thereupon the judge so appointed shall hold
such Courts as aforesaid, and shall for the purposes
thereof have all and every the powers, authority, and
jurisdiction of the judge in whose stead he shall have
been appointed, and so long as he shall continue to act
in his stead there shall be paid to him instead of* to the
said judge, the additional salary payable to the said
judge under this Act.
33 $ 34 Vic., Cap. 46. 223
PART V.
Miscellaneous.
65. Any person ( 23 ) who, under any tenancy what- Mo.]* and it appearing to the Court that the said A. B. has
established his claim for
Here state
the particu-
lars of im-
provements
& payments
to predeces-
sors allowed.
and for
making together the sum of
Here state sa i d - - uas established
particulars of
any set-off,
objection,
default, or
conduct of
the Tenant,
allowed or
taken into
account.
, and it further appearing that the
making together the sum of
claim].
, [or has failed to establish his said
It is adjudged that after deducting the said sum of from the
said sum of , there is due by the said C. D. to the said A. B. the
sum of in respect of the said claim, which said sum of the
said C. D. is hereby ordered to pay to the said A. B., together with the
sum of , for costs and for expenses of witnesses. And the
several Sheriffs of the respective counties of Ireland are hereby com-
manded, notwithstanding any liberty within their bailiwicks, to enter
the same, and take in execution the [body or goods, as the case may
be] of the Respondent(s) to satisfy the said sum of and costs.
Dated this day of
Hundred and Seventy.
Sum recovered,
Costs, -
Witnesses' expenses, -
Warrant,
in the year One Thousand Eight
E. F. Chairman of Quarter Sessions for said county.
G. H. -Clerk of the Peace for the said county.
I. K. Attorney for the Claimant(s).
[Note. If any default or unreasonable conduct of either party
under the 18th section has been relied on at the Hearing, the Decree
should notice the fact, and specify the allowance or disallowance of
the claim and the sum (if any) awarded in respect of such item.]
Landlord and Tenant (Ireland) Act, 1870. 247
(VIII.) Fobm op Dismiss.
Landlord and Tenant {Ireland) Act, 1870.
By the Chairman, &c. [Proceed as in
last form to*.]
And it appearing to the Court that the
said A. B. has failed to establish his said
[several claims] or his said claim in respect
of , but has &ee
established his said claim in respect of preceding
to the amount of . And it further Iorm -
' appearing that the said C. D. has estab- _
lished his claim for ee
to an amount equalling [or exceeding] P rececun S
the said sum of .It is rorm -
therefore ordered that the claimant's said
claim be, and the same is hereby dismissed,
and that the Respondent(s) do recover
against the Claimant (s) the sum of
cost of this dismiss, together with for witnesses' expenses.
And the several Sheriffs in Ireland are hereby commanded, notwith-
standing any liberty within their respective bailiwicks, to enter the
same, and take in execution the Claimant's [body or goods, as the case
may be] to satisfy and pay the Kespondent(s) the said cost of obtaining
this dismiss.
Dated at , this day of One Thousand Eight
Hundred and Seventy.
Cost of dismiss,
Witnesses' expenses,
E. F. Chairman of Quarter Sessions for said County.
G.H. - Clerk of the Peace of said County.
I. K. Attorney for the Respondent(s).
County of Wicklow,
Division of Arklow.
A. ., of the Scalp, Te-
nant of the Lands of
Goat's Hill, situate in
the barony of ,
parish of ,
and county aforesaid,
Claimant;
C. D., of , in said
county, Landlord of
the above-named Te-
nant, in respect of the
said lands,
Respondent.
(IX.) Fobm of Decbee on a Claim undeb an Ulsteb
Tenant-bight Costom.
Landlord and Tenant (Ireland) Act, 1870.
County of Donegal,
Division of Buncrana.
A. B. of , Tenant
of the lands of Maha-
nabo, in the barony
of , parish
of , and
county aforesaid,
Claimant;
C D., of Land-
lord of the said A. B.,
in respect of the said
lands,
Respondent.
By the Chairman, 4 c.
The Court having heard and investigated
a claim duly made and prosecuted under
the said Act, in which the Claimant made a
claim in respect of a certain Ulster Tenant-
right custom, that is to say [here set out
the right claimed],* [here adapt Form No.
VII. to the circumstances of this case].
[This form can be adapted to the case of a claim under sec. 2.]
248 Rules for Proceedings under Part I. of the
(X.) Form of Dismiss of a Claim onder an Ulster
Tenant-right Custom.
Landlord and Tenant {Ireland) Act, 1870.
County of Donegal,
Division of Buncrana.
A. B.. of , Tenant
of the lands of Maha-
nabo, in the barony
of , parish
of , and
county aforesaid,
Claimant ;
C. D., of , Land-
lord of the said A. B.,
in respect of the said
lands,
Respondent.
By the Chairman of Quarter Sessions fo,
said County. [Proceed as in last form to
and then adapt Form No. VIII., to mee t
the circumstances of the case.]
(XI.) Form of Submission to Arbitration and
Appointment of Arbitrators and Umpire.
Landlord and Tenant (Ireland) Act, 1870.
\ Whereas John Smith has claimed for
compensation under this Act, in respect of
the lands in the title hereof, the sum of
, by reason of disturbance in his
occupation, by the act of the said Patrick
Power [as the case may be] ; and the sum
, of , for improvements effected
I thereon, as appears by the notice of claim
bearing date the , lodged on
the day of , in the office
of the Clerk of the Peace. And whereas
the said Patrick Power disputes the said
claim, and relies moreover, in satisfaction
./ or reduction of same, upon a set-off
~ , for , or , damages
for [as the case may be], as appears by the notice of dispute,
bearing date the day of , lodged in the office of the
Clerk of the Peace.
It is hereby agreed by and between the said parties, to refer such
dispute to the order, award, and final determination of A. B. of
and C. D. of , pursuant to the provisions of the said Landlord
and Tenant (Ireland) Act, 1870, in that behalf provided. Accordingly
the said John Smith hereby appoints A. B. of , to be and
act as his arbitrator herein, and the said Patrick Power hereby appoints
County of Kilkenny,
Division of Thomastown.
John Smith, of ,
Tenant of the lands of
Piltown, in the barony
of Iverk, and parish
of
Claimant ;
Patrick Power, of ,
Landlord of the above-
named Tenant in re-
spect of the said lands,
Respondent.
amounting to
Landlord and Tenant {Ireland) Ad, 1870. 249
C. D., of , to be and act as his arbitrator in accordance
with the provisions of the said Landlord and Tenant (Ireland) Act,
1870.
Dated this day of
(Signed) John Smith.
Witness
(Signed) Patrick Power.
Witness
The said A. B. and C. D., the arbitrators so hereby appointed, do
hereby, and before entering upon the matters herein referred to them,
in accordance with the said Act appoint E. F. of , to be, and
act as Umpire, in case of difference between them.
Dated this day of
(Signed) A. B.
CD.
FORMS FOR USE IN CASES
OP
LIMITED OWNERS.
(A.) Form op Application by a Limited Owner to the
Chairman op Quarter Sessions por a Charging
Order, in respect op Compensation agreed on,
AND PAID.
Landlord and Tenant {Ireland) Act, 1870.
To the Chairman of Quarter Sessions of the County of
\
In the case of the Estate
of A. B., a Limited
Owner of land, and C.
The Applicant showeth as follows:
1. That under a deed dated the day
of 18 , and made between, .], the person
252 Rules for Proceedings under Part I. of the
entitled to the first estate of inheritance in said lands, a notice signed
by the said [A B.] stating the fact of such agreement and payment,
and his intention to apply for an order to charge such holding with an
annuity of in his favour for the term of thirty-five years, and the
said [C. D.] having appeared before the Court, was duly heard [or in
case of no appearance, say, And whereas proof was given to the Court
that twenty-one days' previous notice of the intention of the said [A. B.]
to make such application had been duly served on the said [C. D.], or
his agent, Ac] And it having been proved to the satisfaction of the
Court that the said sum of was paid by the said [A. B.], to said [E. F.]
Now, it is hereby ordered that the lands of , containing acres, in
the barony of , and county of , as specified in the map lodged
in this case in the Office of the Clerk of the Peace for the said county,
be charged with an annuity of in favour of the said [A. B.]
his executors, administrators, and assigns, for the term of thirty-five
years, payable on the day of in each year, commencing
from the day of 18 .
[Follow the words of the Order as made by the Chairman.']
Dated this day of
Chairman of the Quarter Sessions
of the county of
( E.) Form of Application by a Limited Owner to the
Chairman op Quarter Sessions for an Order op
Confirmation of a Lease, or Proposed Lease.
Landlord and Tenant (Ireland) Act, 1870.
To the Chairman of Quarter Sessions of the
County of
County of
Division of
In the case of A. B, (a
Limited Owner) seeking
for an Order of Confir-
mation of a Lease, [or
proposal for a Lease.]
The applicant showeth as follows:
1. That he is entitled to an estate for his
life, and for his own benefit, in the lands
of , in the barony
1 of , and county of
under a deed dated
the day of , made
between a
lyto
of a
and
eter-
naln
le.
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through the Landed Estates' Court. 267
Form No. 4.
Variation in Statement where the Vendor is himself
a Tenant for Life, and where the Pdrchase-Monet
is to be paid over to Trustees who do not act as
Vendors.
[Title of Matter, &c, as before].
Showeth
That by the last will and testament of Sir H. Brabazon, bart., de-
ceased, a copy of which is lodged herewith, the Brabazon Manor estate,
which comprises (inter alia) the townland of Marlay, in the barony of
Shrule, and county of Mayo, was vested in M. N. and 0. P., their heirs
and assigns, on trust, to pay the rents and profits thereof to the appli-
cant, Brabazon Onne, for and during the term of his natural life, with
remainder to his first and other sons in tail male, with remainders over,
and that a power of sale was given to the said trustees.
That Knox Onne, the eldest son of the applicant, is the first tenant-
in-tail under the aforesaid will, and is of the age of twenty-one years
and upwards, and is now resident at University College, in the city of
Oxford.
That the said trustees are living, and are now resident as follow :
M. N. at , post-town , in the county of , and 0. P.
at , post-town , in the county of .
[Paragraphs as to disability and consideration for sale must be inserted
in every case].
That the said trustees have never acted on the power of sale so con-
ferred on them, and have declined to enter into any agreement for
sale ; [but are willing to receive any sum of purchase money which this
Honourable Court may pay over to them on the trusts of the aforesaid
will.]
[State the occupation of the lands and agreement for sale.]
That the applicant B. Onne, as tenant for life within the meaning of
the Act, is desirous that the proposed sale should be carried into effect
by this Honourable Court in manner following, viz. :
That a statutable conveyance may be executed by the Court to
the said [tenant] of the fee-simple of his holding in the said town-
land, and that the Court may give such further or othtr aid and
relief incidental to the proposed sale, as the nature of the case may
require, according to the judgment of the Court.
Sch. 1. Description of lands, as before.
Sen. 2. Particulars of incumbrances (if any), as before
268 Rules for Carrying out Sales
Form No. 5.
Variations where the Vendors are Trustees for Sale,
and where the Land is held (together with other
Lands not sold) under a Lease or Grant.
Title of the matter, - - - 216
216
- 216
- 218
- 218
Upon the security of the residue of estate,
Collectively or individually,
To be issued by Treasury,
To be repaid to Consolidated Fund,
AFFIDAVIT :
Of limited owner for charging order in respect of compensation
paid, - - - - - - -239
Form of, - - - - - - - 250
Verifying application for confirmation of lease, . - 240
Form of, --.... - 253
Of service of notice of sale, ..... 262
AGENT :
Whether, may consent to sub-division and sub-letting, - 92
to assignment, - - - 136
May prohibit letting in con-acre, - - - 92, 186
Notices of claims may be served on known, ... 232
Agreement of dispute may be signed by, lawfully authorized, 234
Authority of, to give notice to quit, - -166, 220
Mortgagor in possession is, of mortgagee for certain purposes, 172
GENERAL INDEX. 297
PAGE
AGISTMENT:
Definition of, - - - - - - - 143
Letting for purposes of, no compensation in case of, - 2, 197
AGREEMENT (see COVENANT) :
Sums due for deterioration, in breach of, to be deducted from
claim, ...... 89, 186
Implied, what, 89,138-140
Disentitling tenant to away-going crops, - - 124, 193
Settlement of dispute by, in writing, ... - 145
For purchase of tenants' holding, - - 160, 208, 257
As to determination of tenancy from year to year, 167, 220
Form of, - - - - - - - 258
Directions as to contents of, 264
Copy of, must accompany statement, - 258
May provide for costs, ..... 260
AGRICULTURAL CUSTOMS OF ENGLAND :
Principles of compensation under, - - 33
Implied in leases, - - - - - 40
Of continuous growth, - - - - 46
Need not be of immemorial existence, - - - - 46
Subject matter of, - - - 47
Mr. Pusey's Committee on, - - - -49
Winrove Cooke's classification of, not accepted, - 50
Local area of, - - - - -62
Process of growth in, the result of judicial decision, - - 55
Attach to leases, unless expressly excluded, - - 59-61
Do not include compensation for disturbance, - - 33, 80
AGRICULTURAL LEASE (see LEASE).
ALIENATION (see PROHIBITION) :
By tenant-purchaser of holding subject to annuity must be
with consent of Board, ... 163,214,215
Acts which pass in invitum do not constitute, - - - 163
Purchasers of residue of entire estate notsubjectto restrictions on, 164
Prohibition against, unless determined or waived, bars sale
under Part II., - . - - - 208
ALLOTMENT (see COTTAGE).
298
GENERAL INDEX.
AMENDMENT (see PRACTICE OF CIVIL BILL COURT).
ANNUITY (see ADVANCE BY BOARD OF WORKS) :
In respect of advance by Board, - - 213, 214, 215, 216
Charged on holding for compensation paid by limited
owner, .....
26,
204, 239
Payable within 35 years, ...
213, 214,
215, 216
Is a charge on land, ....
-
- 216
Priority of,
-
- 216
Computation of term of payment of,
-
- 216
Mode of payment of, -
-
- 216
Apportionment of first and last payments,
-
- 216
To be recovered by Board or Attorney-General,
-
- 217
Arrears of, not recoverable after two years,
-
- 217
Evidence as to, -
-
217
Duty of owner in possession to prevent, -
- 217
Payment by owner next in possession,
-
- 217
Redemption of, -
-
28, 162
By persons liable to pay, - - -
-
- 217
Table for, - -
- 230
Commutation of
For principal sum, ...
161,
165, 218
Of principal sum, by payment of, -
-
- 217
APPEAL :
May be made from order or award of Chairman,
23,
157, 201
Time and mode of making,
157,
237, 238
Hearing of, -
-
- 201
Jurisdiction of judges on, ...
-
- 202
Questions may be reserved on, -
-
- 202
Decisions of Judges on, ...
-
- 289
APPLICATION :
Under Part I.
Division of county in which, heard,
To vary, rescind, or review order,
To record award of arbitrators,
For charging order under Section 27,
Time for and particulars of,
Form of, -
Notice of, -
155, 231
155, 201, 235
- 238
159, 204, 239, 249
- 239
159, 251
- 205, 251
GENERAL INDEX.
299
PAGE
For confirmation of lease, - - 160,206,240
Form of, 240, 252, 253
Verification of, 253
For advance-
To landlord for compensation for improvements, - - 213
reclamation of waste lands, - -213
To tenant to purchase holding, .... 214
For charging order under Section 56, 219
Of Purchase-money, - - - - 211
By landlord for sale of holding, - - - 208, 258
Form of, - - - - -268
Deposit on as security for costs, - 209
Inquiries by Court in reference to, - - 209
Approval of by Court, ..... 209
By occupying tenant to L. E. C. for purchase of holding, 164, 215
Of married woman
Mode of making, ...... 221
Of person under disability, ..... 221
Of Act to holdings, - - - - 168, 227
to Ireland, - - - - 181, 227
APPORTIONMENT (see ANNUITY).
ARBITRATION K see ARBITRATOR, AWARD, UMPIRE) :
Form of submission to, - - 238, 248
Lodgment with Clerk of Peace of reference to, - - 238
Application or report in the matter of the, to be entertained by
Civil Bill Court, - - . - - - 238
Time for agreement of submission to, - - - 22, 239
Court of
Constitution of. .... 22, 158, 203, 228
Powers, jurisdiction, and authority of, - - 203
ARBITRATOR (see ARBITRATION, AWARD, UMPIRE):
Both parties may concur in appointing a single, - - 228
Otherwise each to appoint one, .... 228
Provisions where a single, dies or becomes incapable before
award, ....... 228
appointed by one party dies in like
case, ....... 228
300 GENERAL INDEX.
PAGE-
Appointment of, must be in writing, .... 228
is a submission to arbitration, - 228
not to be revoked without consent of the other
party, - - - - - - - 228
Failure to appoint, after fourteen days from service of request
made by the other party is ground for application to the
Court to decide the case, ..... 228
One, may act ex parte if the other refuses, or for 14 days
neglects to act, ------ 229
Appointment of umpire by, ..... 229
ARREARS (see ANNUITY, RENT).
ASSENT :
Of claimant to compromise of claim for share or interest in the
purchase-money, - - - - -218
ASSIGNEE (see ACCEPTANCE).
ASSIGNMENT (see ALIENATION:
Definition of, - - - - - - 135
Whether includes devise and bequest, - 133
Without consent of landlord, bars compensation for disturbance
in certain cases, - - 10, 75, 79, 135-137, 195
Differs from sub-letting and sub-division, - - 90, 135
Prohibition of holding purchased under Part II., 163, 214, 215
By operation of law, - - - - - -163
ASSIZE :
Judges of, to hear appeals, - - 23, 157, 201, 237, 238
ATTACHMENT :
Order may be enforced by, .... 155,201
Practice in reference to, * - - 155-157
ATTORNEY-GENERAL (see ANNUITY).
AWARD OF COURT OF ARBITRATION :
Record of, 22, 203, 238, 239
Validity of, 203
GENERAL INDEX. 301
PACK
Enforcement of, ...... 203
No appeal from, ...... 203
Not removable by certiorari, - 203
AWAY-GOING CROPS (see COMPENSATION FOR AWAY-
GOING CROPS) :
Definition of, - - - - - - 124
Law of England as to, - - - - - 125
Irish usages as to, - - - - 126
BANK:
Deposit of compensation-money in, - - - - 237
security for costs under Section 34 in, - 259
Lodgment and distribution of purchase -money in, - 211
BANKRUPTCY :
Assignment in breach of condition against, - - - 193
BEQUEST :
Not assignment under Section 13, - 10, 195
Included in "taking by assignment or operation of law," - 133
BOARD (see ADVANCES, ANNUITY):
Definition of, Part II., .... 213, 257
Subject to control of Treasury, ----- 218
Issues to, by Treasury, ..... 218
Approval of draft conveyance by Solicitor of, - - - 259
Solicitor Of, to take out conveyance, in default of tenant-
purchaser, --.---- 259
May advance to landlords for compensation for improvements, 26,
162, 213
BODY CORPORATE, COLLEGIATE, OR POLITIC:
Included in " person " or party, - - - - 225
in "limited owaer," ..... 204
BUILDINGS (see PERMANENT BUILDINGS) :
Entry to view, ........ 196
Damage to, - . - 200
302 GENERAL INDEX.
PAGE
CERTIFICATE :
Of Board, evidence of amount due on annuity, - -217
CERTIORARI :
Award of arbitrators not removable by, ... 203
CESS (see GRAND JURY CESS).
CESTUI QUE TRUST:
May be made respondent, if he has given receipts for rent, - 171
CHAIRMAN {see COURT) :
Powers and jurisdiction of, ..... 200
Discretion of, as to division in which applications, disputes, and
motions may be heard, .... 155, 231
as to service of claims and disputes, - 231, 233
as to lodgment of claim, .... 234
as to proof of service, .... 235
May substitute service, .... 232, 233
May enlarge time of service, ..... 233
May adjourn the hearing, - - - 233, 235, 240
Discretion of, as to notices of registration of improvements, - 235
May sit in chamber, ...... 201
May review, rescind, or vary order, - - 155, 201, 235
Appeal from, ....... 201
Order of, final, - - - - - - - 201
Taxation of costs by, - - - - - 235, 236
Order of, to draw deposit, ..... 237
May entertain applications and reports on arbitration pro-
ceedings, ....... 238
Order of, to record award of Court of Arbitration, - 238, 239
May order searches, information, advertisements, in reference
to application of limited owner, under Section 27, - - 239
May direct inquiries, notices, advertisements, in respect to con-
firmation of lease, ...... 240
To hold additional Courts as prescribed, ... 222
To get additional salary, ..... 222
Substitute may be appointed for, .... 222
CHAMBER :
Hearing in, by Chairman, - - - - 22, 201
Business- in, under Part -II., -262
GENERAL INDEX. 303
PAGK
CHARGES :
Which are not incumbrances under Part II. :
Quit-rents, - - - - - - 210
Rent-charges, ...... 210
Rights of common, of way, of water, water- com sen, and
other easements, - - - -210
Heriots, manorial rights, and franchises, - - 210
Charges for drainage or under Act of Parliament, - 210
Implied in conveyance under Part II., - 210
Apportionment of, - - - - - 211
Priority of payment of, - - - - 216
CHARGING ORDER :
Of Civil Bill Court-
Application for, ..... 204, 239
Form of, - - - - - - 249
Form of, - - - - - 240, 251
Copy of, to be supplied on application, - - - 240
For advances to improve waste lands, ... 213
for purchase of holdings, - - 213
To be registered by Clerk of Peace, - - - 219
Of Landed Estates 1 Court
For advances to tenant-purchasers in, - - - 215
To be registered by Clerk of Peace, - - - 219
CIVIL BILL COURT (see CHAIRMAN, CHAMBER, COURT,
PRACTICE).
CLAIM (see COMPENSATION, LANDLORD, TENANT) :
Arises only on quitting,
.
-
144, 197
Must be against landlord,
.
-
58, 98
Against trustee,
-
-
- 170
cestui que trust,
-
-
- 171
.
.
-
171-173
mortgagor, *
^.
..
-
171-173
mortgagee,
Notice of,
;
-
20, 144
Form of, -
.
231
242, 244
By customary tenant may be dual, -
-
67, 289
Time within which, may
be served, 20, 144,
231
232, 294
Copy of, to be delivered to Clerk of Peace,
-
- 232
Dismiss, as against all or
any of respondents,
-
- 234
Service of.
.
-
232
Amendment of,
.
-
144, 197
304 GENERAL INDEX.
PAGE
CLERK OF PEACE :
Includes Deputy Clerk of Peace, .... 241
To receive and record copy of all notices of claim and dispute, 232
Notice of claim to be lodged for hearing with, - - 233
To receive and forward copy of notice of dismiss, - - 234
of agreement as to dispute, - 234
of notice of dispute of schedule of
improvements for registration, .... 234
of appeal, ... 238
of reference to arbitration, - 238
application of limited owner for
charging order, - . - . . . 239
application for confirmationof lease, 240
Regulations as to duties of, - - - - 236
May be served at his office or by registered letter, - - 237
Fee to, on searches, ...... 237
Docket for deposit of compensation-money to be obtained from, 237
Entry of order and directions of judges on appeal, and of Court
for Land Cases Reserved, by .... 238
Record of award of arbitrators by, .... 239
Transmission of appbcation of limited owner under Section 27, 239
To furnish copy of charging order on application, - - 240
certificate of confirmation of lease, - 240
To endorse certificate of order confirming lease, - 241
To register charging orders of Civil Bill Court, - - 214
COMMISSIONERS :
Included in " limited owner " - - - -
COMMITTEE (see DISABILITY).
COMMUTATION (see ANNUITY) :
Of contingent and other claims, - - - - 218
COMPENSATION :
Applicability of term, .... 57,58,140,143
Classes of holdings excluded from all, - - - 2,197
Classification of tenants according to, - - - - 4
Payment of, in case of derivative estates in same holding, - 152
mortgage, - - - 171-173
Deposit Of, by landlord, - - 21, 153, 154, 199, 237
GENERAL INDEX. 305
PAGE
Drawing out, - - - - - 171, 173, 237
Deductions from, ----- 21, 200
Advances Of, to landlords, - - - 162, 213
COMPENSATION FOR DISTURBANCE {see DISTURBANCE,
LOSS) :
Nature and amount of, - - - - - 11
Principles of estimating, ... 79-85, 290, 291
The scale of, - - - - - 11, 185
Provisoes to the scale of, - - 12, 13, 86, 87, 98, 185
Contract in derogation of, - - - 14, 95, 186
Deductions from, - - - 14, 88, 89, 186, 281
Forfeiture of, - - - - - - 14, 90
Distinguished from the good-will element of the Ulster custom, 65
Classes of tenants entitled to, - - - - - 74
Classes of tenants excluded from, - - - - 75
Customary tenants, waiving the claim under the custom, may
claim, - - - - - . 77, 184
Tenants, whose tenant-right has been purchased, may claim, 77, 183
Determined by loss not so much individual as general, - 79
Does not exist under English agricultural customs, - - 80
Reasons for, in Ireland, - - - - - 81
Tenants under lease made before Act not entitled to, - 93, 184
Tenants under lease made after Act, of less than 31 years or
for uncertain term, entitled to, - - - 94, 186
Retrospective, only to existing yearly tenants valued at not
more than 100 disturbed by act of immediate landlord, 95, 186
By succession of landlords, - - - - - 95
Form of claim for, ...... 242
Order for payment of, must state particulars of loss, - - 199
COMPENSATION FOR IMPROVEMENTS (see IMPROVE-
MENTS) :
General provisions as to, - - - - 97, 187-190
May be claimed by tenant quitting voluntarily, - - 98
Principle of estimating, .... 98, 292
Retrospective limits to, ... 15, 101, 187
Deductions from, .... 15,110,189,281
Undertaking by landlord to make improvements excludes,
except where undertaking not ful611ed in reasonable
time, 15, 107, 188
X
306 GENERAL INDEX.
PAGE
Lease excluding, - - - 15,97,107,108,188
No, made in pursuance of contract for valuable consider-
ation, ..... 15, 106, 1 87
Contract prohibiting improvements, where it excludes, 15, 16,106, 110
187, 189
Contract in derogation of, - - - 16, 110, 189
Tenant quitting voluntarily not entitled to, who refuses reason-
able terms of sale, .... 16, 109, 183
Nor, where improvements prohibited as and being calculated to
diminish the general value of the landlord's estate, 16, 106, 187
Ulster custom includes, and free from restrictions on claim or
proof by non-customary tenants under Sections 4 and 5, - 65
Tenants claiming under custom not entitled to, - 97, 187
No forfeiture of, under Act, - - - - - 98
Roman law of, - - - - 1 15n.
Limited by claim for disturbance in certain cases, 98, 102, 185
Reductions of, for time of enjoyment, - 15, 99, 110, 113, 190
for rent, - - - 15,114,190
for benefits conferred, - - 15, 115, 190
Form of claim for, ..--.- 243
COMPENSATION FOR IN-COMING PAYMENTS (see
IN-COMING PAYMENTS) :
Where claimable, .... -19,119-121
Permission to sell on reasonable terms avoids, - 19, 192
Made during lease, .... -19,121,123
Under Ulster custom, - - - - - 37
Ulster tenant exercising the option cannot claim, 19, 65, 66, 120
Tenant claiming compensation for disturbance cannot claim, 1 9, 1 20
192
Deductions from, - - - - 19, 120, 123, 192
Equities of claim for, ----- 123,192
COMPENSATION FOR AWAY-GOING CROPS (see AWAY-
GOING CROPS) :
Tenants entitled to, - - - 123, 193
Where custom does not extend to, - - 124,193
In absence of agreement, - 124, 193
On quitting, ..... 124, 193
Extends to all crops left in the ground, and not ripe at time
of quitting, - ... 125
GENERAL INDEX.
307
CON- ACRE :
Lettings in, excluded from compensation, - - 2, 197
after prohibition by landlord, forfeits compensation
for disturbance, ..... 14,93,186
CONDITION :
Against assignment, sub-letting, bankruptcy, or insolvency,
ejectment for, - - - 9, 75, 128, 193
Of re-entry implied in lease under Part I., - - 205
CONSENT :
Of Court
To customary tenants' claim under general provisions of
the Act, - - - 3, 5, 65, 67, 73, 184
To reference to arbitration,
-
- 239
Of SUb-tenantS to sale of holdings,
-
24, 258
Of Judge to investment of purchase-]
moneys,
- 261
Of Landlord
To sub-division or sub-letting,
-
- 186
May be after the Act,
-
- 91
May be that of agent,
-
- 92
Must be in writing, -
-
- 92
To in-coming payments,
-
121, 192
To assignment,
-
135, 136, 195
May be that of agent,
-
- 136
Need not be in writing,
-
- 136
Of Parties
To hearing in chamber,
-
- 201
To review, rescind, or vary order, -
-
- 201, 235
Of Board-
To alienation of tenant purchaser's holding,
- 214, 215
Of married woman,
.
- 221
Of persons under disability,
-
. 221
CONTINUOUS POSSESSION :
Under the Ulster custom,
37
CONTRACT :
Void in derogation of claims, -
But not where holding valued at 50,
14, 16, 17, 95, 111, 186
- 17, 134, 187, 194
308 GENERAL INDEX.
PAGE
Excluding compensation for improvements, - - 8, 107, 189
For valuable consideration to make improvements excludes
from compensation of 4th Section, - - 15, 106, 187, 288
Prohibiting improvements, - - 16, 110, 188, 189
CONTROL :
Of Board by Treasury, - - - - -218
CONVEYANCE :
By Landed Estates' Court under Fart II.
Confers estate free from incumbrances, - - - 209
Discharges holding of sub-tenancies, ... 258
Draft, subject to approval of Board of Works, where
advances made, ------ 259
Form of, - - - - - - - 269
Omission by tenant purchaser to take out, ... 259
Costs of, - - - - - - - 259
CORPORATION :
Included in "limited owner," - . - - - 204
COTTAGE ALLOTMENT :
Definition of, - - - - - - - 143
Excluded from compensation, 2, 197
COSTS (see CONVEYANCE, SALE) :
Under Part I., as prescribed by rules, - 235, 255, 288
Taxation of, by Chairman, including expenses of witnesses,
copies of documents, maps, and surveys, - 235, 236
Not recoverable, as between party and party, or solicitor
and client, unless taxed by Chairman, - - - 236
Of Sale under Part II., .... 211, 260
Security for, - - - - - 209
Deposit of, - 259
Taxation of, - - - - - - 260
Of distributing purchase-money, - - 162, 260
COUNTY :
Definition of, - - - - - - -. 225
GENERAL INDEX. 309
PACK
COURT (see CHAIRMAN, CHARGING ORDER, CONSENT,
LANDED ESTATES' COURT, ORDER) :
Compensation for loss of holding thought just by, - 79, 185
In Part I. means Civil Bill Court or Court of Arbitration, 200
Improvement appearing to, calculated to diminish general value
of landlord's estate, ----- 187, 189
Terms of sale appearing to, to be reasonable, - 188
Reduction of compensation by, for time of enjoyment, &c, 15,99,115
189
Opinion of, as to practice on estate to make improvements, - 190
Reasonable satisfaction of, that improvements not made by
tenants, ..-..-.. 191
In-coming payments, satisfaction of, as to, - - - 192
award, as thought just by, for, - 192
permission to obtain satisfaction as
thought reasonable by, for, ----- 192
payment of compensation for, on agree-
ment, - - - - - - - 204
Treating by, of ejectment for arrears as disturbance, - - 193
Certificate of, that rent exorbitant, .... 193
Opinion of, as to unreasonable resumption, - 194
as to what is reasonable refusal of assignee, - 195
Amendment of claim allowed by, .... 197
Equities to be considered by, ----- 198
Permission to continue in occupation on terms appearing to, to
be reasonable, - - - - - -198
Apportionment of payment of compensation, as thought just by, 199
Inquiry by, as to compensation for damage out of money de-
posited, - - - - - - - 200
Satisfaction of, as to payment of compensation by limited
owner, ....... 204
Confirmation of lease by, - - 23, 160, 206, 240, 252
Satisfaction of, as to death of tenant, on application for limited
administration, ..--.- 220
Examination of married woman by, as to free agency, - - 221
Additional sittings of, may be prescribed by Privy Council, - 222
salaries to judges and officers of, - 222
Chancellor may appoint a substitute in, - - - 222
May appoint guardian or next friend, ... 222
For Land Cases Reserved-
Constitution of, - - - - - 23, 202
S10
GENERAL INDEX.
PAGE
Form of judgment of, 202
Making of Rules by, 206
In Part II. means Landed Estates' Court, - - 257
Security for costs of application for sale required by, - 209
Inquiries as to circumstances of holding, parties interested,
&c, thought fit by, - - - - -209
Lodgment of purchase-moneys in bank when thought
expedient by, ...... 210
Investment of purchase-money lodged, ordered by, as cir-
cumstances require, - - - - - 211
Full power of, to apportion charges, &c, - - - 211
COVENANT {see AGREEMENT) :
Sums due landlord for deterioration, in breach of, to be deducted
from claim, - - - - - - 89, 186
Implied, what, - - - - - - 89
Apportionment of, - - - - 211
CROPS (see AWAY-GOING, ROTATION) :
Green, ....
CUSTOM :
Not transplanted by the Act, -
Difference between usage and, -
Must be reasonable,
voluntary,
Strict proof of, not required,
Grounded on error cannot prevail,
Local area of, -
Of the country, -
as to valuation of tillages
Of estates in England,
in Ireland,
Of Kent as to compensation for buildings,
93, 186
- 32
- 45
- 55
- 56
46, 50
- 51
- 52
- 47
- 175
- 52
- 54
- 103
DAMAGE :
By tenant after decree or award, compensation for, 21, 153, 154, 200
DAMAGES :
Unliquidated, made set-off, .... 146,198
Difference between penalty and liquidated, ... 146
Policy of Courts of Equity as to penalties and liquidated, - 147
Action for, against mortgagor, .... 172
GENERAL INDEX. 311
PAOK
DEEDS AND DOCUMENTS :
Production of, material to title, on sales under Part II., - 259
To be deposited in Court, or produced to Examiner, - 259
DEFAULT :
Jurisdiction as to, - - - 145, 198
Particulars of, - - - - - 199
DEMESNE LANDS :
Definition of, - - - - - 141, 285-288
Excluded from compensation for disturbance, 2, 142, 197, 283-285
DEPASTURAGE :
Letting for temporary, no compensation in case of, - 2, 197
DEPOSIT (see COMPENSATION, DAMAGE).
DETERIORATION (see ROTATION) :
Deduction from claim for, 88, 110, 120, 123, 186, 189, 192, 291
Meaning of, - - - - - - - 88
By predecessors in title not made subject of
deduction, - - - - - 89, 186, 189, 192
DISABILITY, PERSONS UNDER :
Application, &c, by minor, idiot, or lunatic, may be through
guardian or committee, ..... 221
In other cases, through guardian ad litem, - 222
Married woman may act through next friend, - - 222
Service on, by limited owner making application under sec. 27, 239
in proceedings under Part II., - 262
Representative of, in proceedings under Part II., - - 261
Directions of L. E. C. as to, to be followed, ... 265
DISPUTE OF CLAIM FOR COMPENSATION (see
PRACTICE OF COURT) :
Jurisdiction of Court on hearing of, - - 21, 145-151
Settlement of, by agreement in writing, - 145, 234
Notice of, - 20, 145
Division in which dispute to be heard, - 155, 231
Form of, 233,244,245
Time for serving, ..... 233, 294
312 GENERAL INDEX.
PAGE
DISPUTE OF CLAIM FOR REGISTRATION OF IM-
PROVEMENTS, - - - 18, 118, 119, 191
Notice of, time and mode of serving, .... 234
DISTRIBUTION (see PURCHASE-MONEY).
DISTURBANCE (see COMPENSATION for DISTURBANCE,
LOSS) :
Definition of, - - - - - 9, 77, 79
"What is not
Ejectment for non-payment of rent, - 9, 78, 128, 193
But not for arrears beyond last three years, 127, 128, 193
Nor where rent exorbitant - 128, 129, 193
Ejectment for breach of condition, - 9, 78, 193
Quitting after notice of surrender, - 9, 79, 129, 194
Resumption by landlord for labourers'
cottages, 10, 78, 130-133, 194
Eviction for sub-letting, assignment, &c, by tenant
without landlord's consent, - 10, 79, 135-137, 186, 195
refusal of entry to landlord, 11,78,140,196
exercise of unnecessary rights, 11, 78, 138, 195
Where tenant has refused reasonable terms offered, 11, 79
Of tenants rare in England, - - - - 80
Greater loss by, of small tenants in Ireland than in England, 81
Form Of claim for, - - - - - - 242
DRAINS :
Compensation for, - - - - - -112
Entry to make, - - - - - - 196
EASEMENTS :
Not incumbrances, nor to be specified in conveyance, 161, 210
EJECTMENT :
Is, generally, disturbance, - - 9, 79
Is not disturbance
For non-payment of rent, - - - 9,78,127,193
Except for arrears beyond the last three years, - 128, 193
Or where exorbitant rent, - 128, 193
For breach of condition, ... 9, 78, 128, 193
To resume possession for labourers' cottages, 10,78,130-133,194
In certain cases of assignment, &c, 10, 79, 135-137, 186, 195
GENERAL INDEX. 313
PAGE
Founded on notice of surrender, - - 10, 79, 129, 194
For refusal of entry to landlord, - 11, 78, 140, 196
For exercise of unnecessary rights, 11, 78, 137-140, 195
Where tenant refuses reasonable terms of occupa-
tion, --- - 11, 79, 148-151, 198
Service of, may be followed by notice of claim, - 232
of claim may be made on attorney for plaintiff in, 233
EQUITIES SECTION, 198, 294
ESTATE USAGES :
In England, - - - 52, 53
In Ireland, - - - - - - - 54
Of natural growth legalized, - - - - 56
Arbitrarily restricted, not legalized, - - 56, 59, 62
EVICTION (see EJECTMENT):
Restrictions on till compensation paid, - 21, 153, 154, 199
Liability to, for non-payment of rent, - - - 137
EVIDENCE :
Register of improvements is prima facie, - 18,118,191
Certificate of Board is, of amount due on annuity, - - 217
Service of notice to quit is prima facie, of its being stamped, - 220
EXAMINER :
Definition of in Rules (Part II.), - - - -257
Inspection of deeds by, ..... 259
Certificate of, for costs, ..... 260
EXERCISE {see RIGHT).
FALLOW :
Definition of, - - - - 175
Valuation of, - - - - - - - 176
FEES:
To Clerk of Peace on searches, .... 237
Schedule of, under Part I., - - - 255
For attested copies of documents under Part II., - 260
To counsel under Part II., ..... 262
314
GENERAL INDEX.
FIRE:
Lease under Section 28, to contain clause as to destruction by, 206
FISHING :
Eviction for refusal of entry to landlord for,
FIXTURES :
Permanent buildings not exclusive of, -
FLAX:
Letting in con-acre for,
Not necessarily an exhausting crop,
- 196
- 103
- 93
- 177
FORFEITURE :
Clauses of, construed strictly, - - - - - 91
in lease, not reasonable, .... 109
Of compensation for disturbance, - - - 14,90
contrary to Ulster custom and to
equity,
for improvements not allowed,
Of holding alienated while annuity unpaid,
41, 42, 91, 147
- 98
- 214, 215
FORMS :
Claim for disturbance,
improvements,
by Ulster tenant exercising option
in respect of Ulster tenant-right,
Dispute of whole claim,
portion of claim, -
Decree,
Dismiss,
under Ulster tenant-right,
under Ulster tenant-right,
Submission to arbitration,
Application for charging order,
for confirmation of lease,
Verification of, -
Affidavit verifying, -
Notice on person having first estate of inheritance,
Charging order, ....
Agreement for sale under section 32, -
Directions as to, -
- 242
- 243
- 243
- 244
- 244
- 245
- 245
- 247
- 247
- 248
- 248
- 249
252, 253
- 253
- 249
- 251
- 251
- 263
- 264
GENERAL INDEX. 315
PAGE
Statement for carrying into effect a sale under Part II., 264, 267, 268
Verification of, - - - - - - 265
Schedules to statement, - - - - -266
Notice of application to carry into effect a sale under Part II., 268
Conveyance to purchasing tenant under Part II., - - 269
Certificate of payment at foot of conveyance, - 269
FRANCHISES (see CHARGES).
FREEHOLD LAND :
Meaning of absolute owner, in case of, ... 208
Estate conveyed to tenant, in case of, ... 209
GALE DAY:
Notice to quit must terminate on last, of calendar year, - 167
GAME :
Entry for taking, ..... 196
GARDENS :
Attached to labourers' cottages, .... 194
GOOD-WILL :
Element of Ulster tenant right, - - - 31.34,37
distinguished from compen-
sation for disturbance, - - - - 65
is a capitahzed payment in
ease of poor-rates and emigration-rates, - - 82-84
Payment for, customary in all parts of Ireland, 68-81n, 81-83n
GRAND JtJRY CESS:
Applicability of provisions as to, - 168,170,223-225
Amount of deductions from, by tenant, - - 169,223
Where premises do not exceed 4 in value, immediate lessor
to pay whole of, ----- - 223
Recoverable as it might have been from occupier, - - 224
If unpaid for four months, collector to give notice to occupier, 224"
When after one month, it becomes recoverable from occupier, 224
Who may deduct sum paid from his rent, ... 224
; by middleman, - 169, 223
Provisions as to, do not extend to presentments for malicious
injury, ....... 224
Nor to amounts levied under Peace Preservation Acts, 225
316 GENERAL INDEX.
PAGE
GRAZING LAND :
Breaking up not to be deemed improvement, - 17, 99, 189
GREEN CROPS :
Letting in con-acre for, - - 93, 186
GUARDIAN :
May act for minor in proceedings, - - - 221
Appointment of, by Judge of L. E. Court, - - - 261
Civil Bill Court, - - - - 222
HERIOTS (see CHARGES).
HIRED SERVANT (see LABOURER).
HOLDING (see ANNUITY, COMPENSATION, DAMAGE,
RESUMPTION, PURCHASE, SALE, USAGES):
Definition of, - - - - - 1, 58, 135, 227
Of a tenant whose tenant-right has been purchased by the
landlord, or who has exercised option, not thenceforth to be
subject to custom, ....
64
183, 184
Improvement suitable to,
-
100, 174
Individual, .....
- 131
Entry for examining state of, -
-
- 196
Alienated, while annuity unpaid, is forfeited, -
-
214, 215
HUNTING :
Eviction for unreasonable refusal of entry to landlord for, - 196
IDIOT (see DISABILITY).
INCUMBRANCES :
Landlord, whether subject or not to, may sell under Part II., - 162
208, 209
Inquiries of Court as to, - - - 209
Estate of purchasers under Part II. free from, - - 209
Charges and interests deemed not to be, - - - 210
Annuity in favour of Board takes priority of, - - 216
GENERAL INDEX. 317
PAGE
IMPROVEMENTS {see COMPENSATION FOR IMPROVE-
MENTS, MANURES, PRESUMPTION, REGISTRA-
TION, SCHEDULE, TILLAGES) :
Definition of, ..... 14,99,100,226
Includes work suitable to, and adding to letting value of the
holding, .... - 99, 100, 292
tillages, - - - - 99, 100, 174-178
manures, .... 99, 100, 178-181
other like farming works, - - - 99, 181
Restrictions on, - - - - - 110, 189
Excepted from operation of Section 4, - - 15, 16, 187
Under the Improvement of Land Act, 1864, - - lOOre
Usually made by the tenant in Ireland, ... ng
Entry to view, ----..- 196
Presumed to be tenants', - - - 17,115,190
Exceptions in case of improvements made before 1st
August, 1870, - 17, 117, 190
Permissive registration of, - 18, 118, 119, 191
IN-COMING PAYMENTS (see COMPENSATION FOR
IN-COMING PAYMENTS) :
Definition of, - - - - - 19, 120-122
Consent of landlord to, .... 121, 192
INSOLVENCY:
Ejectment for breach of condition against, ... 193
INSTALMENTS :
Repayment of advances in, - - - -216
INTEREST :
Difference between profit and, - - - - 111
JUDGE (see APPEAL) :
Meaning of, in Rules (Part II.), .... 257
Order by, for production of deeds, .... 259
Directions on title by, ...... 259
Directions as to costs by, ..... 260
May dispense with abstract, rental, or schedule of incumbrances, 260
May direct investment in land or stocks of purchase-money not
immediately distributable, .... 260, 261
318 GENERAL INDEX.
PAGE
May appoint trustees to receive and invest, ... 261
Consent of, to investment of purchase-money, - - - 261
May appoint guardian or next friend, - 261
May certify for attendance of counsel, - 262
fee to counsel for perusing and settling draft
statement, ------- 262
LABOURER (see RESUMPTION BY LANDLORD) :
Not entitled to compensation, - - - - 2, 197
Resumption of land for cottages of, not disturbance, 10, 78,
130-133, 194
Holding of hired, - - - - - 293
LANDED ESTATES' COURT :
Registration of improvements in, - - - 118, 191
Purchases by tenants of holdings in, - - - 27,214
All reasonable facilities for, to be afforded, - - 21 5
Applications for, to be heard, . - - - 215
Approval of, to agreement for sale of holdings, - - 257
Conveyance by, discharges holding from sub-tenancies, - 258
Sanction of, to Board taking out conveyance, - 259
Rules, Forms, &c, of, to be followed in proceedings under
Part II. where rules under the Act do not extend, - - 262
LANDLORD :
Definition of, - - - - - 170-173, 226
Sale of holdings by, ----- 161,208
on agreement with, - - 24, 208, 257
Sale by, of entire estate, - - - 27, 215
The Ulster tenant-right must be claimed against, - - 58
Purchase or acquisition of tenant-right by, - 3, 63, 73, 183, 184
Compensation for loss of holding by, - 73-97,184-187
Immediate, disturbance by, - - - 95, 186
Eviction by superior, not liable to compensation, - 154, 200
Consent of, to sub-letting, *.c., - - - 10,79,91,186
to in-coming payments, ... 121, 192
to assignment, ... 135-137, 195
Acceptance of assignee by, - - - 137, 159
Prohibition of con-acre by, - 14,92,186
Resumption by, for labourers' cottages, 10, 78, 130-133, 194
under Ulster custom, - - - - 41
Eviction for refusal of entry to, ... H, 78, 196
GENERAL INDEX. 319
PAGE
Compensation for improvements by, -97 115,187-190
Undertaking by, to make improvements, - 15, 107, 186
Improvements calculated to diminish general value of
estate of, 16, 106, 187
Contract for valuable consideration by tenant with, to
make improvements, ... 15 } J06, 187
Benefits received from, as affecting compensation for im-
provements, - - -115, 190
Compensation for in-coming payments by, - 119-123, 192
Consent of, to in-coming payments, - - 121,122,192
Compensation for away-going crops by, 123-127, 193
To be made respondent, .... 170-173
Service of notice of claim on, ..... 232
Substituted service on, - - - - ' - 232
Service of notice of dispute by, .... 233
LANDLORDS :
Succession of, compensation by, - 92, 152, 189
Classes of, who can sell under Act, - 24, 208
who are limited owners, - - 23, 208
LEASE (see LIMITED OWNER, FORMS, TENANT-RIGHT):
Includes agreement for a lease, - 93, 226
Compensation to tenants under, made after Act, - 7, 93, 184
Excluding compensation for improvements, - 15, 107, 108, 188
Tenants under, made before Act, cannot claim compensation
for disturbance, ----- 93, 184
Reasonable covenants in, 106
Length of, for mountain farms, .... H3
In-coming payments under, - - 19, 121, 123, 192
By Limited Owner, ... 23, 159, 205
Effect of, - - - - - - - 206
Confirmation of, ... 23, 160, 206
Application for, - - - - - 240, 252
Time of, 240, 252
Forms of, - - - - - 240, 252
Certificate of order for, - 241
Stamp on, - - * 271-276
LEASEHOLD LAND :
Owner of, who may sell under Part II., ... 208
320
GENERAL INDEX.
Landlord under lease prohibiting alienation may not sell under
Part II., - - - . - . -208
Estate in, conveyed to tenant, - - - - 210
LEASING POWEES :
Of limited owners,
Cumulative,
LESSOR (see GRAND JURY CESS).
23, 159, 205
- 206
LIMITED OWNER:
Definition of, - - - - - - 23, 24, 204
Leasing powers of, 23, 205
Act enabling, to charge estate with expense of building mansions, 277
Sale by, - - - - 24, 208, 215
Application by, for charging order under Section 27, 158, 204,
239, 249
for confirmation of lease, - - 240
under Section 42, - 213
Service on, ...... 241
" Other Limited Owner," definition of, - - 209
LOSS OF HOLDING (see DISTURBANCE, COMPENSA-
TION FOR DISTURBANCE) :
Compensation for, - - - - - 79, 185, 290
Under section 3 is more general than individual, - -79
Maximum, - - - . . -80
Greater in Ireland than in England, - - - - 81
Policy of consolidation of farms makes, general, - - 84
Special circumstances in, 84, 85, 290
Order to state particulars of, - - - - - 199
LUNATIC (see DISABILITY).
MANSION (see LIMITED OWNER).
MANURES :
Included in improvements,
Definition of, -
Valuation of,
Farm-yard,
Lime,
Soot,
Marl,
14, 100, 227
- 178
178-181, 294
- 178
- 179
- 179
- 180
GENERAL INDEX. 321
Burnt earth or clay,
Bones, -
Guano and artificial manures,
Composts, -
Salt,
180
180
180
180
181
MARRIED WOMAN :
When deemed to be feme sole, ----- 221
When concurrence of husband of, required, - - -221
Examination of, apart, as to free agency, ... 221
Appointment of next friend of, .... 221
MEADOW :
Breaking up, not to be deemed an improvement, - 17, 99, 189
MESNE RATES :
Deductions for .... 200
MIDDLEMEN :
Compensation on disturbance to tenants of, - - 21, 186
Compensation to tenants of, under Ulster custom, - - 43
Payment of compensation by, - 152,199
Treatment of, and their under-tenants under Ulster tenant-
right, - - - - - 43, 152, 153
Non-payment or non-deposit of compensation by, not to restrict
right of eviction by superior landlord, - - 154,200
Deductions from Grand Jury Cess on payment of rent by, 169, 223
MINERALS :
Entry to take, ------- 196
MINING :
Entry for purpose of, - - - - 196
MINOR (see DISABILITY).
MONEY'S WORTH :
Meaning of, ------ - 121
Giving of, by in-coming tenant, ... 121, 192
As constituting successor, - - 133, 194
Y
322 GENERAL INDEX.
PAGE
MONTH:
Means calendar month, - - - -131, 241
MORTGAGEE :
Claim of tenant against, - - - - -171
In case of re-demise by, to mortgagor, ... 171
Under tenancy created by mortgagor
Before mortgage, - - - - - 171
After mortgage, - 172
Under tenancy created by, - - - 172
Before mortgage, - - - - - 172
MORTGAGOR :
Claim of tenant against, ----- 171
In case of re-demise by mortgagee to, - - - 171
Under tenancy created by
Before mortgage, - - - - -171
After mortgage, - - - - 172
Under tenancy created by successor of, - 172
Action against, ------ 172
MOTION :
Interlocutory, hearing of, 155, 231
NEXT FRIEND :
Appointment of, ----- - 222
Notice of claim (see claim).
NOTICE OF DISMISS (see DISMISS).
NOTICE OF DISPUTE (see DISPUTE).
NOTICE OF APPLICATION TO REGISTER IMPROVE-
MENTS (see REGISTRATION).
NOTICE OF APPLICATION TO RECORD AWARD (see
ARBITRATION).
NOTICE OF APPLICATION FOR CHARGING ORDER
UNDER SECTION 27 (see LIMITED OWNER,
APPLICATION).
NOTICE OF SALE (see SALE).
GENEEAL INDEX. 323
PAGB
NOTICE OF SURRENDER :
No disturbance, if tenant gives, - 9, 75, 129, 194
To accompany or precede claim by tenant quitting voluntarily, 63, 232
Requisites of, - - - - - - - 129
NOTICE TO PAY CESS (see GRAND JURY CESS).
NOTICE TO QUIT:
Regulations as to, - - - 28, 165-167, 220
Must be stamped, - - - - - 165, 220
printed or written, - - - 166,220
signed by landlord or agent lawfully authorized, 166, 220
When it takes effect, - - - 167, 220
Penalty for serving notice to quit not in conformity with, 167, 220
Proof of service of, to be prima facie evidence of due
stamping, ...... 220
Is disturbance, - - - - - -79
May be followed by notice of claim, ... 232
Notice under Section 10 is, - - - - 131
Compensation for manures put in after service of, - - 292
OBJECTION :
Jurisdiction as to, - - - - -198
Particulars of, - - - - - - 199
OCCUPATION (see REASONABLE).
OCCUPIER (see GRAND JURY CESS).
OPERATION OF LAW:
Meaning of, ...... 134
Derivation of title by, - - - - - - 19
Devolution by, upon intestacy or marriage, not assignment
under Section 13, - - - - -195
OPTION :
Given to tenants under Ulster custom, 6, 65, 77, 184
Given to customary tenants outside Ulster, - 6, 68, 72, 77, 184
An Ulster customary tenant whose tenant-right has been pur-
chased or acquired cannot exercise the, - - - 65
But may claim the general provisions of the Act, including
Section 7, - - - - - 65, 77
Exercise of, by Ulster tenant seldom advantageous, - - 65
Form of claim by tenant exercising, .... 244
324
GENERAL INDEX.
ORDER OF CIVIL BILL COURT (see CHARGING ORDER) :
Definition of, - - . - - - - - 241
Form of, ----- - 151, 199
Enforcement of, 155-157,201
Person aggrieved by, may appeal, - - 157, 201
Appointing limited administrator, .... 220
ORDER OF LANDED ESTATES' COURT
Dispensing with abstract or schedules,
As to investment of purchase-moneys,
Appointing trustees, ...
Appointing guardian or next friend,
- 260
- 260
- 261
- 262
PASTURE LANDS :
Compensation to tenants of,
2, 142, 196
PARTICULARS :
Of claim,
Of objection,
- 197
- 199
PARTY:
Definition of, -
- 225
PEASANT PROPRIETORSHIP (see SALE).
PERMANENT BUILDINGS :
Definition of, -
Claim for, unlimited retrospectively,
Treated exceptionally in the Act,
Under Ulster tenant-right,
Length of lease in Ulster for, -
- 102
15, 101
87, 102, 108
37, 103
- 103
PERSISTENT EXERCISE (see RIGHT).
PERSON :
Definition of,
170, 225
POSSESSION :
Refusal to give, after notice of surrender,
Until, given up, compensation not payable,
- 194
- 200
GENERAL INDEX. 325
PAGE
PRACTICE OF CIVIL BILL COURT:
In Part I., that of Civil Bill Courts so far as applicable and
not inconsistent with Act or Rules, mutatis mutandis, 145, 235
All powers of amendment exercised in Civil Bills to be
exercised in Land Court, .... 144, 235
Service of notices unless admitted or allowed, to be proved on
oath, - - - - - - - 235
Adjournment of hearing, under sec. 20, 235
PRACTICE OF ESTATE :
As to making improvements, 190
As to consent to or approval of assignee, - - - 195
PREDECESSORS IN TITLE :
Definition of, - - - - - - 101, 194
Claim of landlord against tenant through, - 186,189,192
Through whom tenants may claim, 133, 145, 187, 189, 190, 191,
192, 194, 281
PRESCRIBED :
Definition of, - - - - - - - 226
PRESUMPTION (see EVIDENCE) :
As to improvements made by tenant, - - 17, 115, 190
Exceptions to, in case of improvements made before 1st
August, 1870, .... 17,117,190
Where improvements made prior to sale to landlord, 18, 117, 190
holding is under lease, - - 18,117,190
improvements made 20 years before Act, 18, 118, 190
holding valued at more than 100, 18, 118, 190
landlord's practice has been to make the im-
provements, ..... 18, 190
court is reasonably satisfied the tenant did not
make the improvements, - - 18, 191
Modified where it is landlord's practice to assist in making
improvements, - - - - 18, 191
Under Ulster custom, - - - - - 43,116
PRIVY COUNCIL :
May make rules, - - - - - -212
326 GENERAL INDEX.
PAGE
PROFIT :
Difference between interest and, - - - 111
Natural rate of, in agriculture, - - - -111
PROHIBITION :
Of con-acre, ..... -14,93,186
Owner of lease containing, against alienation cannot sell under
Part II., - - - - - - - 208
PROOF (see EVIDENCE, PRESUMPTION) :
Of tenant-right, ..... 59, 63
Of valuation, - - - - - 85
Of holding being ** town-parks," under sec. 15. - 142
PURCHASE :
Of holdings by tenants, - - - - 27, 257-262
Of tenant-right, ... 3, 63, 65, 73, 183, 184
PURCHASE-MONEY :
Of tenant-right-
May be set-off, -..---- 198
Of holding-
Rights and priorities of charges on land sold, trans-
ferred to, ..... 161, 210
Investment of, not immediately distributable, 210, 260, 261
Must be with consent of judge, - - - 261
Distribution of, ----- - 210
Costs of (see COSTS).
QUARRYING, 196
QUIT-RENTS (see CHARGES).
REASONABLE (see SALE) :
Terms of sale, .... 16, 19, 98, 109, 188, 192
Resumption for labourers' cottages, - - 10, 78, 132, 194
Refusal to accept assignee of tenant, ... - 195
Terms of occupation, .... 148-151, 198
RECLAMATION OF WASTE LANDS:
Definition of, - - - - - -104
Variety of operations included in term, - . - 105
Claim for, unlimited retrospectively, - - 15, 101, 186
Treated exceptionally in the Act, - 88, 102, 108
GENERAL INDEX. 327
PAGE
REDEMPTION (see ANNUITY).
REGISTRATION OF IMPROVEMENTS (see IMPROVE-
MENTS, SCHEDULE):
Regulations as to time and mode of service of notice of, 119, 234
Notice of dispute of claim for, .... 119,234
RENT:
Definition of, - - - - - 169
Number of years' claimable for loss of holding, - 11-13, 185
Specification of, in claim, - - -197
Of land covered by public roads, - -29, 254
" Fairly valued," under Ulster custom, - 37,150
"Fair," in leases by limited owners, ... 159,205
Arrears of, under Ulster custom, - - - - 39
Abatement of, under Ulster custom, - - - 42
on resumption for labourers' cottages, - 133, 194
Effect of Ulster custom on amount of, - - - - 44
Exorbitant, ejectment for non-payment of, is not dis-
turbance, - - - - 9, 80, 128, 129, 193
Ejectment for non-payment of more than three years' arrears
is not disturbance, - - - - - 9, 1 28
Deduction of, due, from claim, 87, 110, 120, 123, 146, 186, 189, 192
Compensation for improvements, as affected by, 114, 115, 190
Assignment where tenant liable to eviction for arrears of, 137, 195
Unreasonable conduct in reference to arrears of, - - 146
Tests of what is a reasonable, .... 148-151
Economists' definitions, - - - - -148
Usual dealings as to land, - - - 150
Principles of the Act, - 150
Tenement valuation, - - - - - 1 51
Evidence of persons of the neighbourhood, - - 151
Apportionment of, - - - - 211
On valuation of tillages, - - - - 178
One-half Grand Jury Cess to be deducted in certain cases by
occupier from, ...... 223
Middleman may deduct from, paid by him a proportionate part
of the cess deducted from rent received by him, - - 223
Occupier valued under 4 pjiying under notice cess payable by
immediate lessor, may deduct sum paid from, - 224
328 GENERAL INDEX.
PAGE
Future tenant taking land at acreable, not liable for rent of
land covered by public roads, .... 225
Unless in case of agreement to the contrary, - - 225
Quit (see CHARGES), 210
Charge (see CHARGES), - - - - - 210
REPAYMENT (see ADVANCE).
RESUMPTION BY LANDLORD :
Under Ulster custom, - - - - - - 41
For labourers' cottages, - 10, 194
Bond fides of, - - - - - - 132
Unreasonable, - - - - - -132
Not applicable to tenant right holdings, - - 131,132
RIGHTS (see CHARGES) :
Exercise of, not necessary to due cultivation, - - 138, 195
Claim in respect of, - - - - 58, 141, 143, 197
ROADS :
Rent of land covered by public, ... 29,225
Entry for making, ...... 196
ROTATION OF CROPS :
In South and East of Great Britain on light lands, - 176
177w
111%
177n
177n
I77n
In the West,
On clay soils, -
Varies according to circumstances,
Flax in, ...
Deterioration by,
RULES :
Made under Act, of same force as Act, - - 207, 212
to be laid before Parliament - 207, 212
SALE (see APPLICATION, AGREEMENT, COSTS, CON-
VEYANCE, DISTRIBUTION) :
Reasonable terms of, denned, .... 16, 109
Offer of reasonable terms of, to tenant quitting voluntarily
excludes compensation for improvements, - - 98, 186
GENERAL INDEX. 329
PAGE
Of holdings, ..... 208-219
Must be by "absolute owner," "tenant for life," and
other limited owner," .... 208
On agreement with landlord, - - 24, 160, 257-262
Restrictions on, ...... 208
Costs of, - - - - - 25, 259, 260
May be provided for in agreement, - - - 260
Where not so provided, .... 260
Provision for, of taking out conveyance by Board, - 259
Landlords who have power of, ... 24, 208
Of holdings in estates in Landed Estates' Court, - - 215
Of entire estate, - - - - - - 27
Notice of application for, - - - 262
Form of, - - - - - - - 268
Service of, - - ... 262
SCALE :
Of compensation for disturbance, ... 11,185
Is the general measure of loss of holding, - - - 85
Tables showing effect of proviso to, enabling tenant to claim
under lower class, - - - - - 12, 86, 87
SCHEDULE OF IMPROVEMENTS (see REGISTRATION).
SCHEDULES TO STATEMENT :
Requisites of, - - - - - 258
Forms of, - - - - - - 266
May be dispensed with by Judge, .... 260
SEARCH :
With Clerk of Peace, - - - - - - 237
Fee on, - 237
SECURITY FOR COSTS (see COSTS) :
SERVANT :
Not entitled to compensation, - - 2, 197
SERVICE :
Substitution of, ..... 232, 233
Of notices of claim and dispute, how and when, 232, 233
330 GENERAL INDEX.
PAGE
Of notice of claim consequent on ejectment, may be on attorney
for plaintiff, ...... 233
Of notice of dispute of schedule of improvements, - - 234
Of notices, unless admitted or allowed by Court, to be proved
on oath, ....... 235
Of notice of application under Section 27, - - 239
Of orders of notices and orders under Part II. on persons under
disability, - - - - - - - 262
Of notices of sale, ...... 262
SESSIONS :
Separate part of, for land cases, .... 231
Notice of holding land, ..... 231
Chairman may vary order during continuance of ordinary, - 235
Decisions of Chairmen at Land, .... 289
SET-OFF (see DAMAGES) :
May be pleaded on dispute, ..... 198
Particulars of, to appear in order, - - - - 199
SETTLEMENT :
Definition of, in Part I., - - - - 226, 241
Statement under Part II. where estate is in, - - 226, 258
STAMP (see LEASE, NOTICE TO QUIT).
STATEMENT (see SCHEDULES TO STATEMENT) :
Directions as to contents and form of, under
Part II., 257,258,264-268
Where estate is in settlement, .... 258
STATUTES, LIST OF :
5 Geo. III., c. 17, Ill
11 & 12 Geo. III., c. 21 (I.), 105
23 & 24 Geo. III., c. 39, Ill
7 Geo. IV., c. 29, 90
2 Wm. IV., c. 17, 90
1 & 2 Vic, c. 56, 83
1 &2 Vic, c 104, - - - ' - 89
3&4 Vic.,c. 105, 156
6 & 7 Vic, c. 92, 83
8&9Vic, c. 118, 143
GENERAL INDEX.
331
10 & 11
11 &12
12&13
13 Vic ,
14&15
14&15
16&17
19&20
23&24
23 4 24
23 4 24
27&28
27 & 28
33 4 34
33 4 34
33 4 34
Vic, c.
Vic, c
Vic, c
c. 21,
Vic, c
Vic, c.
Vic, c
Vic, c
Vic, c
Vic, c
Vic, c
Vic, c
Vic, c
Vic, c
Vic, c
Vic, c
90,
28,
104,
56,
93,
113,
102,
19,
153,
154,
99,
114,
46,
56,
97,
-
83
-
- 157
83, 89
-
- 181
-
- 157
-
- 167
-
- 156
-
- 156
-
- 132
-
- 103
(89,
|140
90, 129, 136,
138, 139,
, 143, 167, 169
, 172, 174
-
-
157
-
-
100, 103
-
-
183
-
-
- 277
-
- 271
SUB-DIVISION AND SUB-LETTING :
Without consent cause forfeiture of compensation for dis-
turbance, ... . - 90, 186
Meaning of, - - - - - - 90
Differ from assignment, - - - - - 90
SUBSTITUTED SERVICE (see SERVICE) :
On non-resident landlord,
On tenant, ....
232
233
SUB-TENANT :
Must consent in writing to sale of holding under Part II., - 258
Of lands sub-let without consent, not entitled to compensation
for disturbance, - - - - " 93, 186
SUCCESSOR :
Definition of, -
SUNDAY :
Not included in computation of days, -
SURRENDER (see NOTICE OF SURRENDER).
TAXATION (see COSTS).
133, 194, 281
- 241
332 GENERAL INDEX.
PAGE
TAXES:
Tenants' share of, due in respect of holding to be deducted
from claim, - - 89, 110, 120, 123, 186, 189, 192
Valuation of, in tillages, - - - - -178
TEMPORARY LETTING :
Excluded from compensation, - - - - 2, 197
Provisions as to tenancies at will does not apply to, - - 225
Decision as to what is a, - - - - - 293
TENANCY :
Creation of new, - - 76,169,184,223,225
in case of mortgage, - - - 171-173
Existing, - - - 94, 128, 135, 138, 186, 193, 195
TENANT :
Definition of, 171-174,226
Derivative title of, - - - 133, 194, 281
In case of tenancy created before mortgage, - - 171,172
after mortgage, - 172, 173
determined before 1st August, 1870, - 173
But holding on in lieu of emblements, - - 174
at sufferance, .... 173
Compensation to, for disturbance, - 73-97,184-187
improvements, - 97-115, 187-190
in-coming payments, 119-123, 192
away-going crops, 123-127, 193
Non-customary, valued at not less than 50, may contract
himself out of the Act, - - - - 96,194
Must give up possession before receiving compensation-
money deposited, ...... 200
Proceedings in respect of claims by, ... 197-200
Lodgment of notice of claim for bearing by, - - - 233
Sale of land to, - - 208-212
Advances to, ------ 214-216
Administration on death of, - - - - 220
Payment of cess by, ... 223,224
TENANCY-AT-WILL :
Compensation in case of, created after Act, - - 7, 173, 225
Treated as tenancy from year to year, - 28, 173, 225
Except in case of temporary letting, - - - - 225
Modes of creation of, - - - - - - 170
GENERAL INDEX. 333
PAGE
TENANT FOE LIFE :
Definition of, ...... 209
TENANT FROM YEAR TO YEAR (see COMPENSATION,
TENANCY, TENANT) :
Existing, valued at not more than 100, and disturbed by
immediate landlord, - . . 6, 75, 77, 186
Not disturbed by immediate landlord, - - - 8, 77
Future, 7,75,77
Advantage to, of claiming under custom, - - - 65
TENANT-RIGHT OF ULSTER (see ESTATE USAGES) :
Legalized, - - - - - 3, 5, 31, 57, 183
Purchase or acquisition of, - - 3, 63, 64, 73, 183
Points of resemblance to and distinction from the Engbsh
agricultural customs, - - - - - - 33
Elements of, - - - - - - - 34
Historical origin of, - - - - - - 34
Definitions of, - - - - - - 36
Characteristics of, - - - - - 36
Continuous possession, - - - 36
Payment by in-coming tenant, - - -37, 120
Jus disponendi, 37, 38
Valuation of rent, - - - - 37, 1 50
Valuation of tenant-right, - - - - 38
Selection of new tenant, - - - - - 38
Arrears of rent under, - - - - -39
Regulation of prices of, unsuccessful, - - - 39
Unreasonableness of restrictions to fixed sum per acre, 44, 56
Attaches to leases, - 39, 41, 59, 61
Resumption by landlord, - - - 41
No forfeiture for non-payment of rent, or breacb of
covenant under, - 41, 42, 91
Abatements of rent under, - - - - 42
Tenants of middlemen under, - - 43, 152, 153re
Presumption as to improvements under, - - 43, 116
Value of tenant-right claim under, - - - - 43
Reasons for its variablenes, .... 43 7 44
Effect on rent and general prosperity, - - - - 44
Relief from taxation under, ..... 45n
Rights under, other than compensation claims,
334
GENERAL INDEX.
PAGE
58
58
59
62
63
Quaere, whether town tenant-right legalized, -
Must be claimed against landlord,
Proof of existence of, -
Exhibited in dealings of tenants with their holdings,
Proof of non-existence of, -
Tenant subject to, may claim under other Sections, 65, 77, 97, 116,
184
Purchase-money of, made a set-on? for landlord, - 65, 198
Not affected by, whether tenant is disturbed or quits volun-
tarily, - - - - - - - 65
Free from restrictions in the Act on sub-letting, assignment, &c,
and on claims for improvements, or on proof thereof, - 65
Essential particulars of,
Poor-rate and emigration-rate elements of,
Reasonable terms of sale under,
Not subject to restrictions on contracts,
Non-applicability of sec. 10 to,
sec. 11 to,
sec. 12 to,
sec. 13 to,
sec. 14 to,
sec. 15 to,
- 72
8ln, 83, 84
- 109
- 134
131, 132
- 133
- 134
- 135
- 137
- 140
Demesne lands and town-parks under, - - - -141
Advances of compensation-money to landlords applies to, - 162
Eorm of claim for, .... 67, 244, 289
TENANT-RIGHT OUTSIDE ULSTER :
Legalized, - - - - - 3, 6, 68, 184
Tenant under, may claim under the general provisions of the
Act, including Section 7, - - - 68, 73, 184
Not necessarily same as selling the good-will, - - - 68
Evidence of its existence, .... 68w-71
Essential particulars of, .... 69-72, 184
TILLAGES :
Definition of, -
Included in improvements,
Operations included in, -
English rules of valuing,
" Full tillages," -
"Half tillages," -
Inapplicable, ...
100,
174
14,
227
- 174,
175
174-
-178
.
175
.
177
- 175,
178
GENERAL INDEX. 335
PAOB
TIMBEE :
Cutting, not an improvement, - - - 17, 99, 110, 189
Entry to take, ...... J9g
TIME OF ENJOYMENT :
As affecting compensation for improvements, - 111, 113n, 190
Must be considered in connexion with rent, - - - 114
TOWNPARKS :
Definition of, - - - - - - 142, 293
Excluded from compensation for disturbance, - 2, 142, 196
TREASURY :
Control of Board by, - -218
Advances to Board by, ..... 218
To approve of additional salaries, .... 222
TRUSTEE :
To be made respondent, - - - - - 170
Appointment of, by Judge, for investment of purchase-
money, - - - - - - - 261
TURF:
Entry for taking, - - - - - -196
UMPIRE (see ARBITRATOR) :
To determine matters referred to arbitration, where arbitra-
tors fail to make award in 21 days or extended time, - 229
To be appointed in writing under hands of, before entering on
the arbitration, ...... 229
If, dies or becomes incapable before or refuses to make award,
arbitrators may appoint another, .... 229
If arbitrators neglect to appoint, Civil Bill Court may appoint, 229
Decision of, to be final, ..... 229
UNREASONABLE :
Resumption for labourers' cottages, - - 131, 132, 194
Refusal to allow landlord to enter, - - - 140, 196
Conduct, jurisdiction as to, ... 145,198,292
Refusal of just and reasonable terms of occupation, 198, 292
336 GENERAL INDEX.
PAGE
USAGES (see AGRICULTURAL CUSTOMS OF ENGLAND J
CUSTOM ; TENANT-RIGHT OF ULSTER) :
Legalized must have essential characteristics of Ulster tenant-
right, --...... 46
Need not the antiquity, uniformity or notoriety of custom, - 52
Of holdings, not recognized in law, ... 55,63
Classification of, in Ireland, - - - - - 55
Must be reasonable, - - - - - - 55
Must be voluntary, - - - - - - 56
Of Ireland as to a way -going crops, - - - - 126
WASTE LANDS (see RECLAMATION) :
Advances by Board of Works for reclamation of, - 26, 213
WATER (see CHARGES).
WATERCOURSES (see CHARGES) :
Entry for making, ...... 196
WAY-GOING CROPS (see AWAY-GOING CROPS).
Dublin : Printed by John Faxconeb, 53, Upper Sackville-street
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