Fitzgerald, Appellant; Hosford, Respondent

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

Fitzgerald,

Appellant;

and

Hosford,

Respondent (1).

Q. B. Div.

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1900.

Fisheries (Ireland) Acts, 1842, 1863 (5 & 6 Vict. c. 106 s. 40; 26 & 27 Vict, c. 114, s. 20) — Weekly close time — Master and servant.

The occupier of a salmon weir is under a continuous obligation to keep Ms weir open for the free passage of fish throughout the weekly close time, and cannot, by delegating the performance of this duty to a servant, escape responsibility.

Hosford v. Mackey ([1897] 2 Ir. R. 292) distinguished.

Case Stated, by the Justices of county Limerick, sitting at Glin Petty Sessions, for the opinion of the Court, pursuant to 20 & 21 Vict. c. 43.

The appellant was summoned as “occupier or user of a stake net or stake weir” at Long Rock Weir in the River Shannon, for that he, during the weekly close season—Sunday, 14th May, 1899—did not “keep a clear opening in the chambers or doors of said stake net or weir” of the width, &c., as prescribed by 5 & 6 Vict. c. 106, sect. 40, and 26 & 27 Vict. c. 114, sect. 20, and the Acts incorporated therewith. The Justices assembled convicted the appellant “of the offence mentioned in the complaint, that is to say, that on the 14th day of May, 1899, at Long Rock Weir in the River Shannon … said date being during the weekly close season for salmon and trout, the defendant as occupier or user of a stake net or stake weir, known and situate as aforesaid, did not,” during the hours of the weekly close season (13th to 15th of May, 1899), “keep a clear opening in the chambers or doors of said stake net or stake weir,” of, &c., “as required by” 5 & 6 Vict. c. 106, sect. 40, and 2.6 & 27 Vict. c. 114, sect. 20, “and the other Acts incorporated therewith” and the Justices imposed a fine of £10 and £4 costs.

The evidence for the complainant was to the effect that the District Inspector of Fisheries, on Sunday, the 14th May, 1899,

saw the weir being fished by men he could not identify, saw the doors of the pockets of the weir being opened by these men, and traced them to the house of Thomas Healy, the defendant's foreman. It was admitted that the defendant was the occupier or user of the stake net or weir in question. Thomas Healy, defendant's foreman, in charge of the weir, was examined, and deposed that he had been instructed and directed by the defendant to open all the doors of the weir during the weekly close times throughout the season. (An objection to this evidence was over-ruled by the Justices.) He stated that on Saturday morning, the 13th May, he had “opened” all the pockets in the weir, had seen them open at low water at noon on Saturday, and on Sunday the 14th, and had found them all open at 6 a.m. on the Monday following. This witness admitted that he was concealed in his house (which overlooked the weir) when the inspector came searching for the men seen by him in the act of fishing, and afterwards opening, the weir; that he did not come out; and he could give no explanation why he did not come out and speak to the inspector. For the complainant at Petty Sessions, it was urged that the occupier or user of the weir was liable, upon proof that a free passage for fish was not made or kept in accordance with the statute; and for the defendant it was contended that the defendant could not be held liable for the alleged illegal acts of the foreman committed contrary to his directions. The Justices found as facts:—“1, that a clear opening,” in one of the chambers of said stake net or weir, as prescribed, “had not been kept upon Sunday, the 14th May, 1899; 2, that the defendant had given instructions to said Thomas Healy to keep such opening in said chamber; 3, that the chamber had been opened (? closed) by or with the privity of said Thomas Healy; 4, That the said Thomas Healy was the person who was in charge of said weir on behalf of the...