Hosford, Appellant; MacKey, Respondent

• Jurisdiction: Ireland
• Judgment Date: 30 November 1896
• Date: 30 November 1896
• Court: Queen's Bench Division (Ireland)

Hosford

Appellant

and

Mackey

Respondent (1).

Q. B. Div.

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

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.

1897.

The Fishery (Ireland) Act, 1848 (11 & 12 Vict. c. 92), ss. 22, 28 — Using fixed net without licence — Licence for year — Calendar year — Master and servant — Liability of fishery owner for criminal act of his servant, done contrary to his orders.

The respondent, owner of an eel-weir in the Upper Shannon, was prosecuted before Justices, under the Fishery (Ireland) Act, 1848, sect. 22, for fishing same on the 11th January, 1896, without being first duly licensed. He had in October, 1895, taken out the usual yearly licence for the weir, and contended that, under this licence, he was entitled to fish the weir until the end of the fishing season, viz. the 31st January following,—the open season for eel fishing in the Upper Shannon extending from the 1st July to the 31st January. The weir had been fished on the date in question by the respondent's servants; but the respondent proved to the satisfaction of the Justices (who dismissed the case) that he was himself absent at the time, and had, before leaving, given express directions to his servants not to fish the weir after the 1st January. On Case Stated,—

Held, that the respondent was not liable for the illegal acts of his servants

done contrary to his orders, and that the Justices were correct in dismissing the complaint.

Held also, that the annual licences for which provision is made in the Fishery (Ireland) Act, 1848, ss. 22, 28, are licences for the calendar year for which same are issued.

Case Stated pursuant to 20 & 21 Vict. c. 43, by the Justices of county Limerick, sitting at Castleconnell Petty Sessions, on the 11th May, 1896, in the matter of a complaint, heard before them on that date, in which Edward H. Poe Hosford was complainant, and Anthony Mackey defendant, alleging that, on the 11th January, 1896, at Castleconnell, the defendant, for the purpose of taking eels, used thirty-seven gaps or eyes subject to licence duty in his weirs in the river Shannon, at Castleconnell, without the same being first duly licensed.

The Justices had in the first instance heard the complaint, and had dismissed the case on the merits, with costs, refusing the prosecutor's application to them to state a Case, on the ground that it was frivolous, as the identical point had been already decided by His Honor the County Court Judge. The prosecutor thereupon applied for and obtained an order for a writ of mandamus directing the Justices to state a Case. This order was obtained on the affidavit of the prosecutor, in which he stated, that at the hearing at Petty Sessions, it was proved, and not denied, that on the date in question, thirty-seven gaps or eyes in the defendant's eel-weirs at Castleconnell were fished by the defendant's men, and eels captured therein and transferred to the defendant's tanks, and that on the said date no licences for the said weirs or gaps had been issued for the year 1896; that, on behalf of the defendant, a letter was put in evidence purporting to be written by the defendant to his foreman, instructing him to set the nets but to capture no fish; and that it was contended for the defendant that his licence for 1895, for these weirs, entitled him to fish the weirs up to the end of the “fishing season” (i. e. the 31st January, 1896), and further, that he was not liable for the acts of his servants done contrary to his orders. This affidavit then proceeded to state that the Justices, holding themselves to be bound by the decision of the County Court Judge of Limerick in a similar case, had dismissed the complaint, and had refused to state a Case when required to do so. The prosecutor, accordingly, asked the Court for an order directing the Justices to state a Case on the following points:—1. Whether a licence for a year entitles the holder to fish an eel weir till the end of the season, which expires after the commencement of the ensuing calendar year? 2. Whether the lessee or proprietor of an eel weir is liable for the illegal acts of his servants? If so, whether he is liable for illegal acts done against his orders? And does such proprietor or lessee, by availing himself of such acts of his servants by accepting and dealing with eels illegally taken, ratify and adopt the illegal fishing so as to render himself liable to prosecution? In obedience to this order, the Justices stated the present Case for the opinion of the Queen's Bench Division.

The Case, after referring to the matters already mentioned, set out that, on the 11th January, 1896, at 7.30 to 8 o'clock in the morning, thirty-seven gaps, or eyes or nets, in the eel weirs at Castleconnell, of which the defendant was lessee and occupier, were fished by several of the defendant's servants. The eels were taken out of the nets and put into the defendant's tank near the shore; subsequently “boxes belonging to the defendant, supposed to contain eels, were observed at Castleconnell Railway Station, addressed to fishmongers in London.” The fishing period or open season for the taking of eels in the river Shannon commences on the 1st of July, and terminates on the 31st of January following. No licences to fish for or...