Great Southern and Western Railway Company, Appellants; Leyden Respondent

JudgeK. B. Div.
Judgment Date30 November 1906
CourtKing's Bench Division (Ireland)
Date30 November 1906
Great Southern and Western Railway Co.,
Respondent (1).

K. B. Div.











Justices — Summary jurisdiction — Service of summons in another county, not being an adjoining county — Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict, c. 93), sect. 11.

Where a summons is issued by a Justice of a county in which an offence punishable on summary conviction has occurred, requiring a defendant to appear and answer to a complaint in respect of such offence, there is no jurisdiction, under the Petty Sessions (Ireland) Act, 1851, to serve the summons in another county, not being an adjoining county, so as to enable the Justices of the county in which the offence occurred to hear and determine the case in the absence of the defendant.

Case Stated under 20 & 21 Vict. c. 43. The case set out as follows:—

“At a Petty Sessions holden in and for the district of Charleville, in the county of Cork, on the 12th February, 1906, before the undersigned Justices of the Peace and the R.M. acting in and for the said county of Cork, in the Petty Sessions District aforesaid, one Martin Leyden, the above-named defendant, was charged with and by a certain summons, at the suit of the above-named Great Southern & Western Railway Co., for that the said defendant, Martin Leyden, did, on the 7th day of October, 1905, at Charleville Railway Station, in the Petty Sessions District of Charleville and county of Cork, unlawfully and wilfully obstruct and impede, by assault, P. Manaher, an officer of the complainants, while in the discharge of his duty at Charleville Railway Station aforesaid, contrary to the statutes in such cases made and provided; and the said Justices, respectively, being then present, the complaint was duly heard before us, and it appearing from the evidence of Patrick Manaher, one of the complainants' servants aforesaid, that the defendant did assault and obstruct him in

the discharge of his duty; and upon such hearing it having been proved that the defendant lived in the county of Galway, the majority of the Justices decided they had ‘no jurisdiction.’ And whereas the said Great Southern & Western Railway Co. has, pursuant to the provisions of the before-mentioned statute, given us notice and required us to state and sign a case setting forth the facts and grounds of our determination, in order that they might take the opinion of the said Court thereon. Now, we, the said Justices …., do hereby state and sign a case as aforesaid as follows:—

“On the case being called, the solicitor for the prosecution quoted The Cork Market Trustees v. The Justices of Cork (1) affecting the jurisdiction of local Justices. And whereas, after due deliberation of above, the three undersigned Justices (forming the majority of the Court) were of opinion that they had no jurisdiction, they dismissed the case without prejudice. And, therefore, the judgment of the Court is required as to whether we, the said Justices, were correct, in point of law, in our determination as aforesaid, or as to what should be done in the matter.”

Bourke, K.C., and Gerald Fitz Gibbon, for the appellants.

Ronan, K.C., and Hoare, for the respondents.

Lord O'Brien, L.C.J.:—

Can a summons be served generally throughout Ireland outside the local limits of the county for which the magistrate issuing the summons is in commission, so that the accused can, if he does not appear, be proceeded against in his absence in that county? To put the concrete case, can a person who is alleged to have committed an offence in county Cork be effectively served with a summons in county Galway, which is not the county in which the offence was alleged to be committed or an adjoining county? This is the question which we have to determine, and which came some twelve years ago before the Queen's Bench Division, and, though the matter was then twice argued, remained

undetermined, as the members of the Court differed in opinion. The case I refer to is the case of The Queen v. The Justices of Cork (1).

Owing to the difference which existed, I thought it well to invite the presence of the body of the Judges of the King's Bench Division, so that the question might be finally determined. I am glad to say we have arrived at a practically unanimous decision on the question. Before I address myself to the considerations which have influenced our decision, I think it well to record our appreciation of the great erudition displayed in the judgments which were delivered in the former case, and to acknowledge the great assistance we have received from these judgments. Many matters deserving the gravest consideration have been submitted to us which were not brought before the Judges in that case.

But, to come to the general question, how is it to be resolved? In my opinion, by reference to the Petty Sessions Act; by ascertaining the true construction of that Act.

Before, however, I apply myself to a consideration of its provisions, I might perhaps refer to the practice and state of the law which existed before it was passed. There is no trace of any practice in Ireland which in any way sanctioned the proposition contended for by the complainants in this case. There is no trace of any practice sanctioning the contention that a summons may be served generally throughout Ireland outside the local limits of the jurisdiction of the magistrate who authorises the issue of the summons. On the contrary, the practice was the other way. It is stated in the first volume of Messrs. Nun and Walsh's Justices of the Peace (at p. 164) that some few statutes authorise the service of the summons beyond the jurisdiction of the Justice granting it, as the Corporation Act, and one of the statutes relating to burning land, which allows the endorsing of the summons by a Justice of another county. This statement plainly implies that there was, in the opinion of the profession, no power to serve a summons generally throughout Ireland. This statement may be regarded as a correct statement of the practice prevailing up to the time when Messrs. Nun and Walsh's book on Summary Jurisdiction was written, that is to say, in the year 1844.

Mr. Molloy, at p. 32 of his excellent work, states in a footnote to section 11 of the Petty Sessions Act, as follows:— “It is not to be inferred, however, that a Justice ought only to issue his summons against parties residing in his own Petty Sessions district, or that a person ought not to be summoned to appear at any Petty Sessions out of the district in which he resides. On the contrary, every magistrate has authority to summon to his Petty Sessions any person residing within his county.” This passage clearly implies that Mr. Molloy, representing the general practice and opinion of the profession, thought that the power to serve a summons was confined to service within the county for which the magistrate issuing it was in commission. An identical passage is to be found in Mr. Montgomery's Justice of the Peace, at p. 24 of the 3rd edition of that book, which was published in 1872. Messrs. Nun and Walsh's treatise was, as I have said, written in 1844; Mr. Montgomery's in 1872; and Mr. Molloy's in 1890—the three treatises covering a period of about fifty years.

In the Burning Act, the 5 Geo. 3, c. 10, S. 1, referred to, it is not alone specially provided that the summons may be served outside the local limits of jurisdiction; but, with a view to so doing, there is an express provision for the backing of the summons—a provision which I need not say does not exist in our Petty Sessions Act. Undoubtedly, the general practice before the Petty Sessions Act did not warrant the service of the summons outside the territorial limits of jurisdiction. It was never done without express authority to that effect. In this connexion I might refer to the Charitable Loan Funds Act, 6 & 7 Vict. c. 91, S. 30, where an express power was given to a magistrate to summon the person sought to be charged, whether, in the words of the statute, he did or did not reside within the jurisdiction of the magistrate who issued the summons. See also the Prevention of Cruelty to Animals Act, 12 & 13 Vict. c. 92, s. 15. The Legislature, when it desired to confer authority to have a summons served outside the limits of local jurisdiction, knew how to do so, and did so unambiguously in express words. This, then, was the practice and state of the law when the Petty Sessions Act passed. Did that Act alter the law or practice?

Before I refer to the various relevant provisions of the Petty Sessions Act, I think it essential to examine the quality and character of a summons. Was it mere notice, or was it process? We are unanimously of opinion that a summons is judicial process, and not a mere notice, and that the direction to serve such process outside the local limits of jurisdiction is an exercise of jurisdiction. The summons is a command to appear. If there be no appearance, there may be the arrest of the defendant, or the determination, in his absence, of the complaint or charge made against him. There is a command to appear, and a clear sanction for not appearing. Perhaps the most important case on this subject was that referred to by my Lord Chief Baron at an early stage of the argument, La Compagnie Générale d' Eaux Minérales et des Bains de Mer (1). There Mr. Justice Stirling, in a valuable judgment in which he drew the distinction between an unauthorised and an authorised notice, said that the notice served in the particular case was not merely a notice that something was going to be done which would affect the accused, but that the jurisdiction of the Court was to be invoked as against him exactly as if he had been resident within the county, and that, therefore, the service should be set aside, as there was no authority to serve a...

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