Leyburn v Armagh County Council (No 2)

• Jurisdiction: Ireland
• Judgment Date: 10 February 1922
• Date: 10 February 1922
• Court: Court of Appeal (Irish Free State)

High Court of Appeal.

Leyburn v. Armagh Co. Council.

LEYBURN

Applicant

ARMAGH COUNTY COUNCIL, Respondents, No. 2 (1)

Malicious injury - Organized robbery - Compensation - Local Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37), sect. 5, sub-s. 1; Malicious Injuries Act, 1853 (16 & 17 Vict. c. 38) - Jurisdiction of High Court of Appeal.

Appeal by the Armagh County Council from an order of the Court of Appeal in Southern Ireland, dated November 9th, 1921, whereby a decree granting the applicant £1 for articles damaged, and £18 for chattels stolen, by way of compensation under the Malicious Injuries Code, was affirmed.

The case came before Moore J. at Armagh Summer Assizes, 1921, on appeal by the County Council from the decree made by the County Court Judge. The following facts were proved or admitted:—

The applicant, William Leyburn, was a farmer living near Tynan, in the County of Armagh, and was also a special constable.

The applicant, as such special constable, had in his house at Tynan aforesaid on the 13th day of May, 1921, certain arms and equipment, and had also equipment of two brothers of applicant who had served in the army.

On the said 13th May, 1921, the applicant was absent from his house. His sister, Annie Leyburn, who resides with applicant, was alone in the said house. A number of men, estimated to be about forty, approached said house, and three of them came to the door. The door was open, and the three men entered the house. One of them asked said Annie Leyburn if any men were in the house, and she said no. Said Annie Leyburn was then asked where the ammunition and arms were, and she replied that she did not know. The three men and others (about twelve in all) searched the house. Some were armed with revolvers, and some with rifles. A number of articles,

applicant's property, were stolen and carried away by the party of men who had entered, including a gun, revolver, ammunition, military equipment, and some other chattels. Two hats belonging to the applicant were in a box in said house. These two hats were taken out of said box by said party and trampled upon and destroyed. No damage was done to applicant's said house except the disorder occasioned by said searching, and no claim was made by the applicant in respect of any damage to or disorder in said house.

No chattels, other than said two hats, were injured or damaged.

The value of all the articles so taken away or damaged was admitted and agreed between the parties to be £19.

There was included in the said sum of £19 the value of said two hats destroyed as aforesaid, namely £1.

The High Court of Appeal for Ireland established by the Government of Ireland Act, 1920 (10 & 11 Geo. 5, c. 67), sect. 38, is not a substitution for the former court of Appeal, but is a Court separate and distinct from the Courts existing at the passing of the Act, and with a more extensive jurisdiction than any appellate tribunal that has hitherto existed in Ireland, and consequently is not bound by their decisions.

A number of armed men entered a house and took away a gun, revolver, ammunition, and other articles. No chattels other than two hats were injured or damaged. The owner applied for compensation for the articles stolen as well as for damage to the hats.

Held, that the raid being of the character of an organized robbery, the applicant was not entitled to compensation under the Malicious Injuries Code for the loss of the goods stolen.

Kirby v. Kerry Co. Council ([1921] 2 I. R. 388) overruled.

Sir John Ross C. :—

This case came before us on appeal from a decision of His Majesty's Court of Appeal in Southern Ireland. The applicant, William Leyburn, obtained a decree from the County Court Judge of Armagh on 28th June, 1921, for the sum of £19, for the wantonly and maliciously seizing and carrying away a gun and other chattels by a number of armed and disguised raiders. From this decree the County Council appealed; and the appeal was heard by Lord Justice Moore at the last July Assizes, who stated a case for the Court of Appeal. The applicant is a farmer and a special constable. As such special constable he had in his house at Tynan, Armagh, on 13th May, 1921, certain arms and equipment. On that day about forty men approached the house. The applicant, William Leyburn, was absent; his sister, Annie Leyburn, was alone in the house. About twelve men entered the house by the door, which was open. They were armed with revolvers and rifles. After searching the house they took away a gun, a revolver, ammunition, and military equipment and some other chattels. Two hats were taken out of a box and destroyed. No damage was done to the house except the disorder occasioned by the searching, in respect of which no claim has been made. No question arises about the hats; a sum of £1 represents their value; and it is agreed that a decree for that sum is to stand. I propose to deal with the case on the assumption that all we are concerned with is the damage caused by the seizure and abstraction of the weapons and equipment I have mentioned. The learned Judge found as a fact that there was an organized robbery.

It has been in the first place contended that this Court is bound by the decisions of the former Court of Appeal. I have stated in my judgment on the preliminary point (1) that this High Court of Appeal has a more extensive jurisdiction than any appellate tribunal that has hitherto existed in Ireland. It is not a substitution for any former appellate Court. It is the High Central Court which is necessary for the determination of the mutual rights and obligations of the component parts of the federal system contemplated by the Act of 1920. It is the supreme guardian of the Constitution and the pivot upon which all the Constitutional machinery was intended to turn. Under sects. 39 and 40 of the Act all the jurisdiction heretofore exercised by His Majesty's Court of Appeal in Ireland is transferred to the Courts of Appeal in Southern and Northern Ireland respectively; but there is no transfer of existing appellate jurisdiction to the High Court of Appeal.

I have in the decision of the preliminary point called attention to the marked difference between the Government of Ireland Act of 1920 and the Judicature Act of 1877, since the latter by sect. 23 specifically transfers the existing appellate jurisdictions to the new Court of Appeal in Ireland. The High Court of Appeal is therefore a Court separate and distinct from the Courts existing at the passing of the Act, and is, consequently, not bound by their decisions. I need hardly say that it is bound to consider with the utmost reverence and respect the decisions of these appellate Courts, which were invariably composed of Judges of the

very highest distinction. We are, therefore, of opinion that it is our duty to consider whether the decision in Kirby v. Kerry County Council (1), which governs this case, was rightly decided.

We must first consider the sections of the various Acts of Parliament. By sect. 135 of the Irish Grand Jury Act of 1836 (6 & 7 Wm. 4, c. 116), it is provided, subject to certain strict requirements being satisfied, that compensation should be awarded for malicious injuries to certain classes of property. Everything turns on sect. 1 of the Malicious Injuries (Ireland) Act, 1853. If there is an unlawful assembly, and if the persons engaged in that unlawful assembly unlawfully, wantonly, or maliciously destroy, demolish, or injure certain classes of property, all damages which shall be so sustained by any person by means of such unlawful acts may be recovered, and so forth. The Local Government Act of 1898 transfers the jurisdiction to the County Court, and at the same time enlarges the description of property in respect of which compensation may be awarded. The section I have quoted from the Act of 1853 begins by defining the state of affairs under which compensation is recoverable, namely, an unlawful or riotous assembly; if under these conditions property is injured by the persons taking part in such assembly, damages may be recovered by the owners of the property. The dominating words in the section are "unlawfully, wantonly, or maliciously destroy or demolish." When this has occurred the remedy is applicable. Injury to the property is one thing; the actual removal or abstraction of the property is another. In the latter case the property may not be injured at all; furthermore, it may be subsequently recovered by the owner. No doubt the owner is injured by the abstraction of his property, but the section does not provide for that; it only deals with the damage sustained by reason of the destruction or demolition of the property in the circumstances mentioned.

It is contended that we must give a liberal or a generous construction to the sections; but such a construction, liberal to the aggrieved person, may be most oppressive to the innocent ratepayers. The complete loss of the property by theft may be a far greater injury to the aggrieved person than the partial destruction of the property not taken. The question is, however, whether the section provides for this or otherwise. The malicious injury code is a most artificial code, and can only be utilized in cases coming within its terms. Until recent years it has always been strictly interpreted, and it has never been treated as putting the ratepayers in the position of insurers against all malicious injuries. Many hard and anomalous cases occur, where through no fault of the claimant it is impossible under the Act to afford redress, as, for instance, in the spiking of the meadow case—Fell v. Co. Council of Cork (2)—and many others, when the damage has occurred, but the aggrieved person has not been aware of it in time.

The strong observations of Holmes L.J. in M'Dowell v. Corporation of Dublin (3), that "legislation has not yet gone so far as to make the ratepayers answerable for the depredations of a...