Glynn and Kennedy v Clare County Council

• Jurisdiction: Ireland
• Judgment Date: 07 November 1910
• Date: 07 November 1910
• Court: King's Bench Division (Ireland)

Hannah Teresa Glynn and Matthew Kennedy, Executors of Michael Glynn, Deceased

Appellants

and

The County Council of the County of Clare

Respondents (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1910.

Malicious injury — Compensation — Death of applicant — Executors of applicant — Survival of right — 6 7 Wm. 4, c. 116, s. 135; 61 & 62 Vict. c. 37, s. 5.

When an application is made under 6 & 7 Wm. 4, c. 116, s. 135, as amended by the Local Government (Ireland) Act, 1898, s. 5, for compensation for malicious injury to property, and the applicant dies pending the determination of the case in Court, his personal representative is entitled to continue the proceedings, and to recover such compensation for the injury to the property of the deceased applicant as the latter would have been entitled to had he survived.

Case Stated by the Right Hon. the Lord Chief Justice of Ireland at the Spring Asssizes, 1910, for the county of Clare, as follows:—

1. Michael Glynn, merchant and farmer, of Ennis, lodged with the Secretary of the Clare County Council on the 17th day of November, 1908, a claim for £96 compensation for loss sustained by reason of 29 head of cattle, 31 sheep, and 3 horses, his property, having been wantonly and maliciously driven off the lands of Fortfergus in his occupation on the night of the 13th or morning of the 14th November, 1908.

2. The said application came on for hearing before the County Court Judge of Clare, at Kilrush, on the 11th day of January, 1909.

3. On the morning of the said day, and before the Court sat, the applicant, Michael Glynn, died.

4. Evidence was, however, taken as to the amount of injury sustained by reason of the said cattle-drive, and the County Court Judge conditionally fixed the amount at £28 10s., reserving the point as to whether the claim survived.

5. The application was then adjourned to enable probate to be taken out of the will of the said Michael Glynn, and accordingly proceedings were continued in the names of the said Hannah Teresa Glynn and Matthew Kennedy, the executors named in the said will.

6. When the adjourned case came on for hearing, it was contended by counsel for the Clare County Council that owing to the death of Michael Glynn his application abated, and that his executors were not entitled to continue the proceedings, and the County Court Judge adopted this view and dismissed the application.

7. The executors appealed from that decision; and said appeal came on for hearing before me at the Spring Assizes for the County of Clare held at Ennis in March, 1910.

8. I decided that the amount of compensation conditionally fixed was correct, but agreed to state this case to take the opinion of the Court whether, when an application is made under 6 & 7 Wm. 4, c. 116, and 61 & 62 Vict. c. 37, Local Government (Ireland) Act, 1898, for compensation for malicious injury to property, and when the applicant dies pending the determination of the case in Court, his personal representative has a right to continue the proceedings and recover compensation for the injury to the property of the applicant in the same manner as the applicant would have been so entitled had he survived.

9. If the answer is in the affirmative, then a decree for £2810s. with expenses, and all costs when taxed, to issue.

Phelps (Lynch, K.C., with him), for the appellants:—

It is submitted that the executors of the deceased applicant were entitled to continue the proceedings, and to recover the compensation to which the deceased would himself have been entitled had he survived. The personal estate of the deceased was injured by the malicious acts, and thereby became less beneficial to the executors to the extent of £28 10s. If the wrong-doers were known, the executors would, under 4 Edw. 3, c. 7, have an action against them for the trespass done to their testator, and that “statute, being a remedial law, has always been expounded largely.” See Williams on Executors (10th ed. 606), and judgment of Bramwell, L.J., in Twycross v. Grant (1). It is immaterial that the compensation is claimed under statute. In Twycross v. Grant (1) the action was founded on an alleged statutory fraud, yet the plaintiff's cause of action was held transmissible to his personal representative, as the value of the personal estate was diminished by the wrong. In Peebles v. Oswaldtwistle Urban District Council (2) the plaintiff's cause of action, founded upon a statutory duty alleged to exist on the part of the defendants, was held to survive to the plaintiff's executors. Here there was a statutory duty on the part of the County Court Judge to award, and on the part of the County Council to pay, compensation to the applicant, if entitled thereto; and the right to such compensation must be transmissible to the executors. The executors come within the words in section 135 of 6 & 7 Wm. 4, c. 116, “the person or persons so injured.” The practice in the case of ordinary civil bill appeals is in our favour; there where appellant or respondent dies after notice of appeal, but before the hearing, the Judge of Assize has jurisdiction to adjourn the appeal to enable the personal representative of the deceased to be added to the record, and, on this being done, there is jurisdiction to hear and determine the appeal: Canning v. Farren (3).

M. Cornyn, for the respondents.

The executors of the deceased applicant are not entitled to compensation, the right to which is not dependent on the common law or natural justice, but on a special code, within the provisions of which the executors cannot bring themselves. They are not “the person or persons so injured” within section 135. Where statutory compensation is intended to be transmissible to the personal representatives of the injured party, it is always so provided by

the statute. The compensation for murder or maiming, provided for by section 1 of 9 Wm. 3, c. 9, was made payable to the widow and children of the person murdered, or of the person maimed if dying before recovery from the maiming, and it was provided that such compensation should not be assets of the deceased, but the right of action given by section 2 of 23 & 24 Geo. 3, c. 20, to recover damages sustained by offences under the Act against the magistrates of a county of a town or city, or against the inhabitants of a parish, as the case might be, was expressly extended to the executors or administrators of the person or persons injured. So also by section 4 of 11 & 12 Vict. c. 69, the right of persons having sustained damage for which they might have had a remedy under the Acts thereby repealed, and who had commenced an action, to proceed to recover damages and costs under the said repealing Act, was extended to the executors and administrators of such persons.

No such provision in favour of personal representatives is to be found in section 135 of 6 & 7 Wm. 4, c. 116. The equitable construction of the statute 4 Edw. 3, c. 7, cannot be extended to such a case as the present. This is not a proceeding in the nature of an action on the case for a “debt” or “duty”: see Sollers v. Lawrence (1); Hambly v. Trott (2). This is a claim for an unliquidated amount, in the nature of damages in satisfaction of the injury done, and such a claim cannot survive: Sir Henry Sherrington'sCase cited by Lord Mansfield in Hambly v. Trott (2); Finlay v. Chirney (3); Davoren v. Wootton (4). In Martin v. Martin (5) it was held that money presented by a grand jury as compensation to the widow and personal representative of a peace officer murdered in the discharge of his duty was not assets of the deceased. Darlington v. Roscoe (6) is not an authority against me; no doubt it was there held that the right of compensation of a dependant of a deceased workman, whose death was caused by an accident arising out of and in the course of his employment, survived to the personal representative of the dependant, but under

the Workmen's Compensation Act, 1897, the dependant has a vested statutory right to compensation, the amount of which is assessed by the Act itself. There is no analogy between such a vested right and a claim for an unascertained amount which must be established by proof, such as the present. The personal nature of the...