1904.

ALLEN

บ.

held that a cock was an animal within the 2nd section of the 12 & K. B. Div. 13 Vict. c. 92. All doubt, however, is removed by the 3rd section of the 17 & 18 Vict. c. 60, which enacts that the word "animal in the Act of 12 & 13 Vict. c. 92 shall mean any domestic animal, SMALL. whether of the kind or species particularly enumerated in sect. 29 Lord O'Brien, or any other kind or species whatever, and whether a quadruped

or not.

GIBSON, J., concurred.

MADDEN, J.:—

I only wish to add that while I should have followed Bates v. M'Cormick (1), even if I did not agree with it, I am entirely in accord with the decision in that case. The principle of construction known as ejusdem generis has not been regarded in recent decisions with the same respect as formerly. It is realised that it is open to the danger of defeating the intention with which words of general application are added to an imperfect enumeration. The adoption of this principle of construction in the present case would be to neutralize the words "or any other domestic animal." Having regard to the mischief in the contemplation of the Legislature, I think that the distinction intended to be drawn is not between quadrupeds and bipeds (which would seem to be irrevelant on the question of cruelty), but between domestic animals and animals feræ naturæ, which were outside the contemplation of the Legislature.

Solicitor for the appellant: Sir Patrick Coll.

L.C.J.

(1) 8 Ir. Jur. (N. S.) 239.

J. G. T.

INDEX.

ACTION TO RECOVER POSSESSION OF ACTION TO RECOVER POSSESSION OF
LAND-Non-payment of rent-Holding sublet- LAND-continued.

-

-

Judgment-Liability of middleman for arrears of the lease. Cope v. Gabbett K. B. 234; APP. 256
rent-Land Law (Ireland) Act, 1896 (59 & 60 3. On title-Second mortgagee against mort-
Vict. c. 47), sect. 12.] A judgment in ejectment | gagor—Legal estate outstanding.] The defendants
for non-payment of rent recovered by a superior | bought their farm from their landlord, through the
landlord, where the entire holding is in the hands Land Commission, under the Land Purchase Acts, in
of sub-tenants, and the middleman does not redeem, 1886, and by deed dated the 12th August, 1886,
discharges the middleman, in the case of holdings the lands were conveyed to them in fee. By the
to which section 12 of the Land Law (Ireland) Act, same deed the defendants mortgaged the land to
1896, applies, from personal liability for the arrears the Irish Land Commission as security for the re-
of rent due by him to the superior landlord. payment of the purchase annuity. By a mortgage,
Quære-What is the effect of the section where dated the 4th May, 1901, the defendants mortgaged
only part of the holding is sublet, or where there the land to the Antrim Building Company to secure
are a series of sublettings one under another? the repayment of £1000. The mortgage contained
French v. Mitchell
K. B. 182 a power of sale, and an express statement of the
2. On expiration of lease-Statutory term- mortgage to the Land Commission. The Antrim
Present tenancy-Lease created between passing of Building Company sold the land under the power
the Land Act, 1881, and the 1st January, 1883- of sale to Houston. In an action of ejectment on
Contracting out-44 & 45 Vict. c. 49, ss. 4, 5, 8, the title by the Company and Houston as co-
20, 22, and 57.] The defendant was tenant from plaintiffs :-Held, by the King's Bench Division,
year to year to the plaintiff of certain lands at the that the judgment should be entered for the
date of the passing of the Act of 1881. Prior to 1st defendants. Per Lord O'Brien: That having
January, 1883, the defendant took a lease from the regard to the decision of Hodgens v. O'Donoghue
plaintiff of these lands for a term of twenty-one (28 I. L. T. R. 98), which a Court of first in-
years, from 21st November, 1881. The lease con- stance could not overrule, the judgment should
tained a covenant by the lessee, contracting him- be so entered. Held, by the Court of Appeal
self out of the provisions of the Act of 1881. In (reversing the King's Bench Division, and restoring
1896 the defendant took proceedings to have a fair the judgment of Kenny, J., at the trial), that the
rent of his holding fixed; the landlord contended defendants could not set up, as a defence, that
the lands were demesne lands, and opposed the the legal estate was outstanding in the Land Com-
application; the Sub-Commission fixed a fair rent; mission, and that the plaintiffs were entitled to
the landlord appealed, on the ground that the possession without bringing the Land Commission
lands were demesne. It transpired that the aggre- before the Court. Antrim County Land Building
gate of the tenant's holdings were valued at above and Investment Co.,Limited, and Houston v. Stewart
£150, but the Land Commission refused to allow
[K. B. 357; APP. 360
the landlord to amend the notice of appeal so as to Superfluous lands-Discovery
raise the question on the contracting out clause,
See DISCOVERY.
and fixed a fair rent. On the expiration of the AMENDMENT—Order made at Quarter Ses-
lease the landlord instituted an action to recover
sions
possession of the lands:-Held, by the Court of
Appeal (affirming the decision of the King's Bench
Division, Lord O'Brien, L.C.J., and Madden, J.;
diss. Gibson, J.), that the order fixing a fair rent
of the holding did not prevent the landlord recover-
ing possession of the premises on the expiration of
1904-VOL. II.

421

64

See QUARTER SESSIONS.
Technical error in police summons book—
5 & 6 Vict. c. 24, ss. 70, 72
See MOTOR CAR.
ANIMALS-Cruelty to
See COCK.

698

705

3 G

APPEAL-Registry-Power to review previous | BIAS-continued.

decision

See PARLIAMENT. 2.

To Quarter Sessions-Erroneous certificate of
conviction

See QUARTER SESSIONS.

To Quarter Sessions-Rate-Finality
See RATES. 1.

64

ARBITRATION-53 & 54 Vict. c. 70, sched. 2,
clause 7-Award less than estimate of
value by witnesses for local authority 15
See COMPULSORY PURCHASE.
ARTICLES OF ASSOCIATION-Restriction
on transfer of shares-Pre-emption
See ESTATE DUTY. 2.
ASSIGNMENT-Fund subject to solicitor's lien
-Charging order
44

644

See SOLICITOR'S LIEN.
Licensed premises-Transfer of license-Re-
assignment
298

See LICENSING ACTS. 2.
Salary of petty sessions clerk

See RECEIVER.

[591

-

389 strong opposition to licensing applications, and
whose solicitor actually attended the Sessions and
opposed, in the names of local objectors, the grant-
ing of licensing applications, the application of F.
amongst the number. A fourth Justice was mem-
374 ber of a firm which had subscribed to the funds of
the Association, and two others, A and B, were
members of the executive committee of the Associa
tion, which, before each Licensing Sessions,
decided upon the licensing applications to be
opposed, and, in the case of F.'s application,
directed that the solicitor of the Association should
oppose. A was not proved to have been a party to
this decision. B was present, but exerted his
influence in favour of allowing F.'s application to
pass without opposition; his determination to vote
for a refusal of the application was arrived at during
the hearing of the Sessions. It was the practice of
the executive committee, before each Licensing
Sessions, to send circulars to over one hundred
69 magistrates, apprising them of the dates, with a
view to insuring their attendance :-Held, that no
BAILIFF—Authority-Demand of possession disqualification attached to any of the Justices
See DEMAND OF POSSESSION.
from taking part in the determination of F.'s
BANKRUPTCY- Certificate of conformity - application. Held, also (Barton, J., diss.), that a
Circumstances for which the bankrupt Justice, in opposing, or retaining a solicitor to
could not be justly held responsible oppose, allicensing application, is not thereby dis-
Failure to pay less than 10s. in the £-qualified from hearing and determining the appli-
Costs of unsuccessful litigation 118, 125 cation as a member of the licensing authority. Per
See CERTIFICATE OF CONFORMITY. 1, 2. Barton, J.: Mere membership of the executive
committee is not per se sufficient to constitute
"real and substantial bias"; but if it could be
105 shown that a Justice hearing a licensing application
had personally taken part in employing a solicitor
to oppose it, "real and substantial bias" would be
proved, and the Justice would be disqualified.
See LICENSING ACTS. 5.
Held, also, that, although the licensing authority
BIAS-Magistrate-Membership of temperance in Ireland is a "Court," the English decisions
association Engaging a solicitor to oppose license- dealing with bias on the part of Justices at "licen-
Court-Licensing meeting-Licensing Acts-Grounds sing meetings" are applicable to Justices composing
of objection—General discretion.] Where Justices, at the licensing authority in Ireland. The King
Licensing Sessions, refuse an application for a new | (Findlater) v. Recorder and Justices of Co. Dublin
license, made under section 6 of the Licensing
(Ireland) Act, 1902, viz. in respect of premises BONA
attached to or adjoining premises licensed for the
sale of intoxicating liquors at the date of the passing
of the Act, they are exercising a general discretion
upon the application, and they are not bound to set
out upon the face of their order a 'reason or ground
for such prohibition," within the meaning of BY-LAW-Of District Council-Reasonableness—
section 4 of the Licensing (Ireland) Act, 1833. Whirligigs and swings—Public Health Acts Amend-
An application by F. for a publican's license was ment Act, 1890 (53 & 54 Vict. c. 59), s.
38.] An
refused by the Quarter Sessions for the county of urban district council, purporting to act under the
Dublin. Three of the Justices composing the powers conferred by sect. 38 of the Public Health
Quarter Sessions were subscribers to the funds of Acts Amendment Act, 1890, made a by-law, sub-
the Irish Association for the Prevention of Intem-sequently confirmed by the Local Government
perance, whose objects were to secure a diminution Board for Ireland, that no person should cause or
in the number of licensed houses, and to organise suffer any whirligig or swing to be set in motion,

BELFAST-Municipal rating

See RATES. 1.

Street-Flagging and paving

See STREET.

374

BEER RETAILER-License-Notice of appli-
cation to renew
190

[K. B. 75
FIDE PURCHASE-Estate duty—
Marriage settlement

1.

621

See ESTATE DUTY.
BUILDING CONTRACT-Property recovered
or preserved-Costs-Charging order 44
See SOLICITOR'S LIEN.

BY-LAW-continued.

or driven on any land immediately adjoining or
abutting upon any street or road within the dis-
trict, unless such whirligig, or swing, was placed
at a distance of not less than 20 yards from any
road, or street, and separated from any street or
road by a wall not less than 14 inches in thickness,
and carried up to a height of not less than 4 feet
from the level of the street or road :-Held, that
the by-law was uureasonable and void, inasmuch
as it required a structure of a permanent character,
involving large expense, to provide against a tem-
porary danger, which could as effectively be pro-
Ennis-
vided against by a temporary structure.
corthy Urban District Council, Appellants; Field,
K. B. 518
Respondent

CARETAKER-Demand of possession-Bailiff
-Authority

See DEMAND OF POSSESSION.

CASES:-

591

Alexander v. Burke (22 L. R. Ir. 443), not
followed

See PARLIAMENT.

Atthill

2.

V. Woods ([1903] 2 I. R. 305)
affirmed

-

18

See LOAN FUND SOCIETY. 2.
Bates v. M'Cormack (8 Ir. Jur. N. S. 239)
followed
705

See Cock.

Borland's Trustee v. Steel, Bros., Limited,
([1901] 1 Ch. 279) followed
644

See ESTATE DUTY.

2.

CERTIFICATE OF CONFORMITY-Failure
to pay 10s. in the £-Circumstances for which the
389 | bankrupt could not be justly held responsible-Section
56 of the Bankruptcy (Ireland) Amendment Act,
1872 (35 § 36 Vict. c. 58)—Damages and costs in
an action for libel.] The bankrupt was sued by F.
for libel, and the action resulted in a verdict for
the plaintiff for £3500 damages. The plaintiff's
costs were taxed at £303 13s. 11d. On the peti-
tion of F., M. was adjudicated bankrupt. The
total debts proved (including the debt of £3803
13s. 11d.) amounted to £4167 19s. 6d.; and the
total assets realised amounted (after payment of
costs) to £1470 9s. Sd. This included two endow-
ment policies of insurance effected by the bankrupt
for the benefit of two members of his family, which
had been given up, and had realised £766. The
estate had paid a dividend of 7s. 6d. in the £:-
Held (affirming the decision of Boyd, J.), that the
failure to pay a dividend of 10s. in the £ did not
arise from circumstances for which the bankrupt
should not be justly held responsible, and that the
bankrupt was not entitled to his certificate. In re
APP. 118
M'Hugh
2. Failure to pay 10s. in the £-Circum-
stances for which the bankrupt could not be justly
held responsible― Section 56 of the Bankruptcy
(Ir.) Amendment Act, 1872 (35 § 36 Vict. c. 58)-
Unsuccessful litigant.] The bankrupt (W.) brought
an action against the Rover Cycle Co., to recover
damages for negligence, in consequence of a bicycle
Moorcock, The (14 P.D. 64) followed 445, 464 purchased by him from them having broken down,

Budge v. Parsons (3 B. & S. 382) followed
See COCK.
[705
Hasson v. Chambers (18 L. R. Ir. 68) not
followed

389

See PARLIAMENT. 2.
Hodgens v. O'Donoghue (28 Ir. L. T. R. 98)
followed in King's Bench Division 357
See ACTION TO RECOVER POSSESSION OF
LAND. 3.

Irish Land Commission v. Magorian ([1901]
200
2 I. R. 445) approved

See TITHE RENTCHARGE.

Kennedy v. Healy ([1897] 2 I. R. 258) dis-
tinguished -

40

O' Prey v. M'Kibben (34 Ir. L. T. R. 162)
considered -

See CIVIL BILL DECREE.

522

R. (O'Leary) v. Cork (Justices of) (12 L.R.Ir.
167) approved of

See LICENSING ACTS. 3.

51