Moloney v Looby

• Jurisdiction: Ireland
• Judgment Date: 08 February 1915
• Date: 08 February 1915
• Court: King's Bench Division (Ireland)

Moloney

and

Looby (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.

1915.

County Court — Decree — Civil bill Appeal — Plaintiff (Respondent) becoming Lunatic — Continuing Proceedings — Jurisdiction of Judge of Assize to appoint Next Friend — 45 & 46 Vict. c. 29, s. 4.

A plaintiff in a civil bill had obtained a decree in the county court, from which the defendant appealed to the judge of assize. Before the hearing of the appeal the plaintiff became a lunatic.

Held, that the judge of assize had jurisdiction to appoint a guardian as next friend of the lunatic for the purpose of the appeal, and had jurisdiction to adjourn the appeal to enable such appointment to be made; and that a nominee of the defendant might be appointed if no one representing the plaintiff was willing to act.

The principle of Canning v. Farren, [1907] 2 I. R. 486, applied.

Special Case, stated pursuant to the provisions of 27 & 28 Vict. c. 99, s. 55, for the opinion of the King's Bench Division, by the Right Hon. Mr. Justice Gibson, sitting as judge of assize at the Spring Assizes, 1914, for the County of Tipperary, South Riding, on the hearing of an appeal from the decision of His Honour Judge Moore dismissing the plaintiff's civil bill for damages. The case set out as follows:—

“A civil bill was issued on the 18th day of July, 1910, in Tipperary County Division (South Riding) of Tipperary, wherein Michael Moloney was plaintiff, and Denis Looby was defendant, claiming £10 damages for that the defendant did wrongfully direct surface-water on the premises of the plaintiff situate at Kildanogue in the County of Tipperary, which civil bill was duly served on the defendant. The action was under the title jurisdiction.

The action was tried before the county court judge of Tipperary, at Clonmel, at the October Sessions, 1910, who gave a decree for the plaintiff for one shilling damages with title costs. From this decree the defendant appealed, and the appeal came on for hearing at the following spring assizes for the South Riding

of Tipperary, and it appearing that the plaintiff respondent had become a lunatic between the date of the hearing and the appeal, the appeal was adjourned.

The plaintiff respondent has since remained, and still is, a lunatic not so found; and the hearing of the appeal was, in consequence, duly adjourned from assizes to assizes, and came before me at the Clonmel spring assizes, 1914, when I again adjourned the appeal to the next assizes, and I consented to state a case for the opinion of the King's Bench Division on the questions hereinafter set forth.

By consent of both sides neither party is to be entitled to any costs on the hearing of the case stated.

I am aware of no case in the Superior Courts as to the practice applicable where, after a judgment, the party in whose favour such judgment has been pronounced has become a lunatic; probably in such event the jurisdiction of the Lord Chancellor would be resorted to.

There appears to be no statute relating to the present question. The lunatic plaintiff, in so far as relates to the appeal, is in the position of a defendant.

The questions for the decision of the Court are—1. Was there jurisdiction to adjourn? 2. Has the judge of assize jurisdiction to appoint a guardian as next friend of the lunatic for the purpose of the appeal? 3. If he has such jurisdiction, can the judge appoint a nominee of defendant, if no one representing the plaintiff is willing to act?”

Robert Kinahan for the plaintiff:—

This is a casus omissus from the county court jurisdiction and procedure. The inability of a county court to appoint a next friend of a person of unsound mind has been judicially noticed: Palmer v. McNamee (1). Appeals to the judge of assize are regulated by 45 & 46 Vict. c. 29, ss. 4, 6, and 9, repealing ss. 127–130 of 14 & 15...