Hamilton v The Attorney-General

• Jurisdiction: Ireland
• Judgment Date: 28 November 1881
• Date: 28 November 1881
• Court: Chancery Division (Ireland)

Appeal.

Before MAY, C.J. and DEASY and FITZ GIBBON, L. JJ.

HAMILTON

and

THE ATTORNEY-GENERAL.

Healy v. ThorneUNKIR I. R. 4 C. L. 493.

Scratton v. BrownENR 4 B. & C. 485, 495.

The Attorney-General v. Hanmer 27 L. J. (Ch.) 837.

Mayor of York v. PilkingonENR 1 Atk. 282.

Lord Tenham v. HerbertENR 2 Atk. 483.

Leighton v. LeightonENR 4 Bro. P. C. 378.

Allen v. Donnelly 5 Ir. Ch. R. 229, 452.

Ashworth v. Broune 10 Ir. Ch. R. 421.

Gabbett v. ClancyUNK 8 Ir. L. R. 299.

Malcomson v. O'DeaENR 10 H. L. C. 593.

Bloomfield v. JohnstonUNK Ir. R. 8 C. L. 68.

Life Association of Scotland v. M'Blain Ir. R. 9 Eq. 176.

Hoare v. BremridgeELR L. R. 8 Ch. 22.

Allen v. Donnelly 5 Ir. Ch. R. 229.

Broadbent v. Imperial Gas CompanyENR 7 De G. M. & G. 443.

Mulholland v. Killen Ir. R. 9 Eq. 471, 482.

Blundell v. CatterallENR 5 B. & Ald. 268.

In re Belfast Dock Act Ir. R. 1 Eq. 128.

Brew v. HarenUNK Ir. R. 11 C. L. 198.

Bath v. Sherwin 1 Br. P. C. 266.

Carroll v. Hamilton Not reported.

Calmady v. RoweENR 6 C. B. 861.

Dickens v. Shaw Hall on the Seashore, App. xlv.,

Malcomson v. O'DeaENR 10 H. L. C. 622.

Allen v. Donnelly 10 Ir. Ch. R. 237.

Duke of Devonshire v. NeillUNK 2 L. R. Ir. 132.

Ashworth v. Browne 10 Ir. Ch. R. 421.

Mulholland v. Killen I. R. 9 Eq. 471.

Earl of Carnarvon v. VilleboisENR 13 M. & W. 342.

Allen v. Donnelly 5 Ir. Ch. R. 239.

Broadbent v. The Imperial Gas CompanyENR 7 De G. M. & G. 443.

Healy v. ThorneUNK Ir. R. 4 C. L. 495.

Brew v. HarenUNK Ir. R. 11 C. L. 198.

Healy v. ThorneUNK Ir. R. 4 C. L. 495.

Patent from the Crown — Construction — Foreshore and seaweed — Bill of peace — Exclusive user by Plaintiff — Trespassers not alleging ownership — Establishment of Plaintiff's title by previous litigation — Trial of issue without jury — Judicature Act, 8. 42 —— Change of Attorney-General —— Practice.

Vox,. IX.] CHANCERY DIVISION. 271 remaining for which the money ought to be invested in the pur- V. a chase of land. This rule is independent of election or intention, 1881. DoNoart and arises from the position of the owner in reference to the fund. 51' It applies, in my opinion, to the present case ; and I shall therefore NoLAN. declare that this sum of £3000, late Irish currency, forms part of the personal estate of the intestate. This renders it unnecessary to consider the other question (1). Solicitors for the Plaintiffs : Messrs. Wm. _Roche 8f Son. Solicitors for the Defendant : Messrs. V. B. Dillon Co. HAMILTON v. THE ATTORNEY-GENERAL (2). Appeal. 1881. Patent from the Crown-Construction-Foreshore and seaweed-Bill of peace Nov. 10-12, Exclusive user by Plaintiff-Trespassers not alleging ownership-Establish- 28. tnent of Plaintiff's title by previous litigation-Trial of issue without jury-Judicature Act, s. 42-G. 0. X X X V., R. 2-Change of Attorney-General -Omission to enter side-bar order-Practice. A patent of King James I. granted the site and precinct of the ancient monastery or priory of H., and certain denominations of land, partly adjoining the seashore, and belonging to the priory, including the harbour of S., with its anchorage dues, and four adjacent islands ; " and also the customs of the tenants and farmers of all the towns and villages above said, who are accusÂtomed to pay to the lord or tenant of the priory aforesaid the divers plough days [&c.] ; and the said tenant or farmer of the priory aforesaid was accusÂtomed to take to his own proper use the wreck of the sea, flotsam and jetsam, waifs and strays." The patent contained general words of grant, including wastes, waters, fisheries, fishings, wreck of the sea, and hereditaments whatsoÂever within the priory, monastery, manors, &e., granted or appertaining or belonging thereto, but there was no express grant of the littus marls. The Plaintiff, who derived under the patent, alleged that from its date his predeÂcessors in title and himself had exercised exclusive dominion over the foreshore forming the eastern boundary of the manor, and over the rocks, sand and seaÂweed thereon. It was, however, proved that various persons had for many years taken seaweed, sand and gravel, and quarried stones, from the seashore, (1) The Defendant appealed, but, between the parties. while the appeal was at bearing, the (2) Before MAY, C. J., and DEASY ease was settled by arrangement and FITZ GIBBON, L.JJ. LAW REPORTS (IRELAND). [L. It. I. but that such acts were not referrible to any alleged ownership of the soil, and that there had been no serious interruption to the Plaintiff's right until 1869, when it appeared that, in the name of his tenant on one of the four islands, he brought an action for trespass on the foreshore thereof, and trover for seaweed taken therefrom, and obtained a verdict (1). In 1875 the Plaintiff filed a bill against the Attorney-General and a number of local Defendants, praying for an injunction to restrain trespass and the taking of seaweed from the foreshore of the mainland, and that lie might be quieted in his possession. No defence was filed, but the Attorney-General appeared at the hearing, and Sullivan, M .R., granted a perpetual injunction against the other Defendants, and directed the Attorney-General to abide his own costs. The, Plaintiff filed a similar bill again in 1877 against the then Attorney-General (who did not dispute the Plaintiff's title) and other Defendants, the latter of whom appeared upon the hearing, and had a like perpetual injunction pronounced against them by Chatter-ton, V. C. Two subsequent actions at law, in which the juries had disÂagreed upon an issue as to the Plaintiffs' ownership of the foreshore, were pending, when, in January, 1880, the Plaintiff instituted another ChanÂcery suit against the Attorney-General and a number of local Defendants, praying the same relief as in the former suits. In this action an appearance for the Attorney-General then in office was entered in February by the solicitors for the Board of Trade, who acted as his solicitor in suits of this nature, purÂsuant to a direction given in 1872 by the then Attorney-General, which reÂmained unchanged. They obtained the advice of the Law Officers of the Crown, and in accordance therewith instructed counsel to appear at the hearing, who accordingly did so, and did not oppose the Plaintiff's claim. A new Attorney- General had been appointed in May, before the hearing, but no side-bar order to proceed against him had been entered by the Plaintiff. The action was, with the Defendants' acquiescence, tried without a jury before Chatterton, V. C., who made a decree declaring the Plaintiff entitled to the foreshore of the mainÂland and of the islands (to which latter foreshore the local Defendants admitted the Plaintiff's title), and that he should be quieted in his possession, and grantÂing a perpetual injunction as before. The local Defendants subsequently moved to set aside the appearance entered for the Attorney-General in this action, on the ground that the new Attorney-General had not been served with y notice of the proceedings, nor made a party, and this motion was refused by Chatterton, V. C. The same Defendants then appealed from the decree ; and on the case coming before the Court of Appeal, it was ordered to stand over for the Attorney-General to be served with notice of the proceedings : and this having been done, and the proper side-bar order entered, the appeal came on for hearing, when the Attorney-General appeared, and with the other DefenÂdants disputed the Plaintiff's claim to the foreshore of the mainland : Held (affirming the decision of Chatterton, V. C.)-(1) That the language of the patent was capable of passing, and intended to pass, the foreshore in (i) See Healy T. Thorne, I. It. 4 C. L. 495. Vol,. IX.] CHANCERY DIVISION. 273 withstanding the adverse acts proved. (2) That the Plaintiff, by the previous litigation, had sufficiently established AI T -6 EN. his title to be quieted in his possession. (3) That the Defendants having, on the summons to fix the mode of trial, acquiesced in the action being tried by the Judge without a jury, could not afterwards, under G. 0. XXXV., Rule 2, insist upon a trial by a jury ; and that, independently of such acquiescence, the Judge had full jurisdiction, under section 42 of the Irish Judicature Act, incorporating the provisions of " The Chancery Amendment Act, 1858," and " The Chancery Regulation (Ireland) Act, 1862," as to the determination of questions of fact, himself to decide the issues raised. The solicitors for the Board of Trade were warranted in continuing to act in the suit as solicitors for the Attorney-General, and in carrying out the instrucÂtions already given. APPEAL by the Defendants other than the Attorney-General from the judgment of the Vice-Chancellor, dated the 7th August, 1880, declaring the Plaintiff entitled to the lands between high-and low-water mark, situate on the seashore of Holmpatrick, including four islands, as therein described, and that the Plaintiff ought to be quieted in his possession of the said lands and rocks, and adjudging the same accordingly ; and that the same DefenÂdants, their servants, agents and workmen, be restrained from trespassing on the said lands, or any part thereof, and from cutting or carrying away any portion of the seaweed being or growing thereon, or otherwise interfering therewith, and declaring the Plaintiff entitled to his costs of action, to be paid by the same Defendants. The hearing below is reported 5 L. R. Ir. 555, where the facts up to that date are fully stated. On the 13th December, 1880, the Defendants other than the Attorney-General moved the Vice-Chancellor for an order that the appearance entered on the 7th February, 1880, for the AttorÂney-General might be set aside, on the grounds that neither the existing Attorney-General at the date of the appearance (the Right Hon. Edward Gibson), nor his successor in office, the then present...