Cork County Council and O'Donovan v Hill [High Court.]

• Jurisdiction: Ireland
• Judgment Date: 03 February 1938
• Date: 03 February 1938
• Court: High Court

High Court.

Cork Co. Co. and O'Donovan v. Hill.

THE CORK COUNTY COUNCIL and PETER O'DONOVAN

Plaintiffs

and

DANIEL HILL,Defendant (1)

Local government - Drainage charge - Collection - Failure of County Council to comply with statutory regulation - Validity of demand - Drainage Maintenance Act, 1924 (No. 46 of 1924), s. 7, sub-s. 3 - Public Bodies Order, 1925 (Stat. R. & Or., 1925, No. 46), Art. 100.

Appeal from the Circuit Court.

The defendant appealed from a decree of the Circuit Court Judge for Cork (Judge O'Donnell) for £45 5s. 8d. in respect of a drainage charge on his lands.

The plaintiffs' claim as indorsed on their Civil Bill, which was dated the 26th February, 1934, was as follows:—

"The plaintiffs" claim is for the sum of £45 5s. 8d., being the amount due by the defendant to the plaintiffs, the Cork County Council, and due to the plaintiff, Peter O'Donovan, as lawfully appointed collector under warrant to the said County Council, on foot of a charging order by the Commissioners of Public Works in Ireland, dated the 25th January, 1928, made in pursuance of the Drainage

Maintenance Acts, 1866 and 1924, for the drainage of the defendant's lands situate in the townlands of Miles and Templebryan and County of Cork during the six years last past. And also due on foot of an account stated and settled.

"Particulars.

To eleven half-yearly instalments of principal and interest . . . in respect of the period commencing the 1st March, 1928, up to and including the instalment due on the 1st March, 1933, at the half yearly instalments of £4 2s. 4d. . . . . . £45 5s. 8d."

The plaintiffs obtained a decree for this sum on the 1st May, 1934; the defendant appealed to the High Court and on the 9th December, 1935, the High Court (Hanna and O'Byrne JJ.) made an order remitting the action to the Circuit Court Judge for Cork for rehearing, with liberty to the defendant to put in an amended defence.

The paragraph of the amended defence mainly relied on at the hearing was as follows:—"5. The alleged drainage rate has not been levied or collected from the occupiers and proprietors of the lands situate in the townland of Miles and Templebryan and County of Cork in like manner and by the like means in all respects as poor rate is demandable, leviable and recoverable."

The action was re-heard on the 5th May and 9th July, 1936, in the Circuit Court, and the plaintiffs again obtained a decree for the sum claimed.

From this decree the defendant brought the present appeal.

At the hearings in the Circuit Court, the second-named plaintiff, Peter O'Donovan, gave evidence of his appointment as rate collector and of the issue to him of a warrant to collect, a receipt book and a number of separate, loose demand notes; he stated that a blank receipt book was the only book issued to him.

Sect. 7, sub-s. 3, of the Drainage Maintenance Act, 1924...