Duke of Devonshire v Edward O'Callaghan Foot

• Jurisdiction: Ireland
• Judgment Date: 01 January 1900
• Date: 01 January 1900
• Court: King's Bench Division (Ireland)

Duke of Devonshire

and

Edward O'Callaghan Foot.

Tor,. II.] QUEEN'S BENCH DIVISION. 211 the weir in question ; but that, inasmuch as the said Justices have Q. B. Div. found that the sides of the gap were not, when the complaint was 1899. heard, in a line with and parallel to the direction of the stream at Devonshire, the weir in the summons mentioned, they ought to have convicted Appellant; the defendants for not maintaining a legal free gap in the said weir: jieSp0n(je^f And accordingly the Court doth order that the conviction on the first complaint in the summons be and the same is hereby reversed .... and that the case be and the same is hereby remitted to the Justices, with the opinion of the Court, that by reason of their finding in respect of the matter stated in the second particulars of the second complaint in the summons, viz. : ' that the sides of the gap were not on a line with and parallel to the direction of the stream at the weir,' they ought to convict the defendants upon the said second complaint, and should impose in respect thereof such penalties upon the defendants as to the Justices shall seem right according to law : And it is further ordered that the parties do respectively abide their own costs of the case stated and the arguments thereon in this Court." Solicitor for appellants : W. J. Verlin. Solicitor for respondent: Anthony Carroll. A. e. r. j. DUKE OF DEVONSHIRE v. EDWARD O'OALLAGHAN Eccoh. Cham. FOOT (1). 1872- Nov. 7, 8, 9, 11 23 ProhibitionJustices, jurisdictionCase stated (20 21 Vict. c. 43), jinality ' of decision of Superior CourtSalmon Fisheries (Ireland) ActsLegal free gap Certificate of Special Commissioners declaring a weir to be legal, its effect. D. had been convicted before Justices, in 1867, for not maintaining a free gap in his weir at Lismore, and the Justices had, at his request, stated a Case for the Court of Queen's Bench upon the question (substantially), whether (having regard to the fact that a free gap had, in 1865, been made in said weir in accordance with the directions of the Fishery Commissioners who, thereupon, (1) Before Monahan, C.J., Pigoi, C.B., O'Brien and Keogh, JJ., Fnz-Gebald and Deasy, BB., Morris and Lawson, JJ., and Dowse, B. Q 2 212 THE IRISH REPORTS. [1900. JExch. Cham, in 1866, had certified the weir to he legal,the weir not having since been altered), 1872, they had jurisdiction to convict upon proof that the bottom of the gap was, as Devonshire a fact, higher than the level of the natural bed of the stream. The Queen's Foot Bench having affirmed the conviction, D. obtained liberty from the Court of Chancery (Lord O'Hagan, C.) to declare in prohibition against the Justices. To his declaration, Foot, the complainant at Petty Sessions, pleaded the decision of the Queen's Bench as conclusive. To this D. demurred, and, the Lord Chancellor having allowed the demurrer : Held, on writ of error to the Exchequer Chamber, that the case was not one for a prohibition, and that the order allowing the demurrer should he reversed. Argument, on writ of error, from the decision, on the Petty-Bag side of the Court of Chancery, of Lord O'Hagan, C, allowing a demurrer to the defendant's plea to the plaintiff's declaration in prohibition : see the Eeport Ir. P. 5 Eq. 314, where the pleadings are fully set out. On the 16th April, 1869, the plaintiff had obtained leave from the Court of Chancery (see Eeport, Ir. E. 3 Eq. 412) to declare in prohibition against the Justices of Co. Waterford to restrain them from proceeding to enforce a conviction (affirmed on Case Stated by the Court of Queen's Bench) under the Eisheries Ireland Acts, for not maintaining a legal free gap in the plaintiff's weir at Lismore (see Eeport of Case Stated, Ir. E. 2 C. L. 514). To this declaration the defendant (the complainant before the Justices) had pleaded the Order of the Queen's Bench as final and conclusive on all parties, and that, therefore, the writ should not issue. The plaintiff had demurred, and the Lord Chancellor had allowed the demurrer. Waters, Q.C, and D. O'Biordan, for the plaintiff in error (Foot). Butt, Q.C, and T. Byland, for the defendant in error. Cur. adv. milt. [The following report of the judgments of the Exchequer Chamber has been taken, by the kind permission of H. M. Inspectors of Fisheries, from the short-hand note published by them (])]. (1) The minute-book of the Court does not mention that Lord Morris was present when judgment was delivered, but mentions that Judge O'Brien did Vol. II.] QUEEN'S BENCH DIVISION. 213 HoNAHAN, O.J. : Exch. Cham. 1872. This case of the Duke of Devonshire against Edward ])Ey0KsHIKE O'Callaehan Foot came before the Court on a writ of error from v. . Foot the Petty Bag side of the Court of Chancery. The proceedings _' in the Court of Chancery consisted of a declaration in prohibition, Nov. 23. a plea thereto, and this plea demurred to; and on the argument of that demurrer my Lord Chancellor gave judgment, holding that it was a fit case to issue a prohibition ; and accordingly, he gave judgment in favour of the Duke of Devonshire, there being no further pleadings and no issue of fact taken. The case now com es before us merely to consider the propriety of that judgment of my Lord Chancellor. The facts stated in the declaration, and also the facts stated in the plea coming before the Court merely on demurrer, we must take as correct as fto the matters stated; and, accordingly, from the statements contained in the summons and plaint, and in the pleading, the facts appear to be these. Prior to the month of February, 1866, the Duke of Devonshire was seized in fee-simple of a several fishery iu the river Blackwater, and also of a fishing weir therein ; and it would appear that some time (the date is not given) prior to the month of February, 1866, the then Fishery Commissioners found that this weir of his that was across the river was illegal ; but the only ground of illegality that existed in the weir, as appeared from the certificate of the Commissioners, which is referred to, but not stated at any length in this declaration, was that it had not a free gap as required by the Acts then in force. The then Commissioners, it would appear, took from the Duke, as they were authorized to do under the Act, an undertaking to make a free gap in pursuance of the provisions of the Act of Parliament. It would appear that some time prior to the month of February, 1866, this free gap was made; and it was then examined and looked at by the Commissioners, who, on the 15th of February, 1866, made an order, or granted a not sit. The minute states that, the case being "called on for judgment, Chief Justice Monahan delivered the unanimous judgment of the Court, reversing the judgment of the Lord High Chancellor (Lord O'Hagan) on the Petty Bag side of the Court of Chancery in this cause." The result of the decision is also briefly noted, Ir. R. 7 Eq. 365. 214 THE IRISH REPORTS. [1900. Exch. Cham, certificate, stating or deciding that the gap so made was properly -1872- made and that this weir was then a legal weir in pursuance of the I)EV0^rsHIEE provisions of the statute. As I said in relation to the other Foot. proceedings, we have not got the full documents before us; we Monahan, merely take the statement of them as given in the pleadings. It C'J" is further stated in the pleadings, and not denied or traversed, that the weir and this gap, and also the state of the river in relation to the gap, continued the same from the time of that certificate so given, up to the month of October, 1867, and up to the month of December, 1867, and up to the time of the pleading. It appears that, such being the state of facts, Mr. Foot, in the month of December, 1867, made a complaint before the magistrates assembled at Petty Sessions; and he complained that this weir was an illegal weir in consequence of the bottom of it not being on a level with the bed of the river, as it ought to have been, in pursuance of the provisions of the Act of Parliament. It appears from the statement of the record, that the magistrates thereupon commenced the hearing of this complaint, and it was proved before them; and, as I understand, no question raised; but it was truly proved, according to the fact, that the weir remained in the state it was in at the time of the order of these Commissioners. The order itself was proved; and it was also proved that, in point of fact, no alteration had taken place in the bed of the river since the adjudication of the Commissioners; and it is stated in the record that thereupon the Duke objected that the magistrates had no jurisdiction further to interfere in the case, it appearing that, in point of fact, such an order as I have stated, or certificate, had been granted by the Fishery Commissioners, and that everything had remained in statu quo since the granting or making of that order. It appears, however, that the magistrates did not yield to that objection, but continued the hearing of the case, deciding, as is stated in the summons and plaint, [the declaration,] that they had jurisdiction so to do, and also deciding that the complaint was well-founded, and adjudging that the Duke, who was the person complained of, was liable to the penalty imposed by the Act of Parliament. The plea further states that upon that adjudication or determination having been so made by the Vol.. II.] QUEEN'S BENCH DIVISION. 216 magistrates, the Duke applied to them in pursuance of the pro- Exch. Cham. visions of the Act of Parliament, to state a case for the determina- l8-^: tion of the Court of Queen's Bench; and that accordingly such Devonshibe case was stated, and was forwarded to the Court of Queen's Bench, Foot. and that the Duke appeared at the hearing, and the case was Monahan, argued before them; and that Court decided against the validity 0-J' of the objection made by the Duke, and accordingly decided that the magistrates had jurisdiction to entertain...