Quinn l v Minister for Finance

• Jurisdiction: Ireland
• Judgment Date: 29 May 1939
• Date: 29 May 1939
• Court: Supreme Court

High Court.

Supreme Court.

Purcell v. Minister for Finance

THOMAS PURCELL, Applicant, MINISTER, FOR, FINANCE, Respondent (1)

Malicious injury - Floating tank storing live eels - Malicious destruction of tank - Escape and loss of eels - Claim for compensation in respect of tank and eels - Damage to tank not exceeding £5 - Whether claim sustainable in respect of tank - Whether claim sustainable in respect of eels - Whether physical injury necessary - Malicious Damage Act, 1861 (24 & 25 Vict. c. 97), ss. 32, 51 - Local Government (Ir.) Act, 1898 (61 & 62 Vict. c. 37),s. 5 - Damage to Property (Compensation) Act, 1923 (No. 15 of 1923),ss. 6, 23 - Damage to Property (Compensation) (Amendment) Act, 1933 (No. 35 of 1933), ss. 1, 2, 4.

Appeal from the Circuit Court.

Thomas Purcell brought an application in the Circuit Court for compensation under the Criminal Injuries Acts for an injury to property within s. 2, sub-s. 1 (b) of the Damage to Property (Compensation) (Amendment) Act, 1933, the respondent being the Minister for Finance.

The claim was made in respect of malicious damage to an eel tank kept by the applicant in the River Fergus and

also in respect of a quantity of live eels which were in the tank and which had escaped by reason of the damage to the tank. The further material facts have been stated in the headnote.

The Circuit Court Judge (Judge McElligott) gave a decree for £3 for the damage to the tank and £60 in respect of the eels.

From this decree the respondent appealed.

The respondent, the Minister for Finance, applied to the Supreme Court (1), by way of appeal from the whole of the order of the High Court (save the part thereof giving the said respondent liberty to amend the notice of appeal), for an order that the whole of the said order (save as aforesaid) should be discharged and that, in lieu thereof, the decree of the Circuit Court Judge should be reversed and judgment entered for the said respondent. The said appeal was expressed to be taken pursuant to s. 61 of the Courts of Justice Act, 1924 (the Judges of the High Court having differed in opinion) and to be taken on the ground that the decision of the High Court was erroneous in law and a misdirection in law so far as it was held (a) that the applicant was entitled to any compensation in respect of the damage or loss alleged or any part thereof under s. 2, sub-s. 1 (b) of the Damage to Property (Compensation) (Amendment) Act, 1933, having regard to ss. 2, 3 and 4 of the said Act and s. 6 of the Damage to Property (Compensation) Act, 1923, or at all; (b) that the injury to the tank referred to in the application and decree was the subject of compensation under the Criminal Injuries Acts or any of them; (c) that the loss of the eels referred to in the said application and decree was a direct injury; (d) that the loss of the said eels was the subject of compensation under the Criminal Injuries Acts; (e) that compensation could legally be given under s. 2, sub-s. 1 (b),of the Damage to Property (Compensation) (Amendment) Act, 1933, in respect of the said tank and eels or either;(f) that the loss of the said eels was caused by the alleged or any damage to property of the applicant; (g) that the said loss, if caused by such damage, was not merely consequential thereon; (h) that the decision of the Circuit Court Judge was not against the evidence or the weight of evidence.

The applicant was the owner of an eel weir in a river and, in the year 1919, owned a floating tank in the river in which he stored alive the eels caught at the weir until he sent them to the market for sale. The tank was made of wood and had holes in it too small to allow the eels to escape but through which the water of the river flowed and it was moored by two chains to a post on the bank. On 26th November, 1919, the applicant, having last seen it a few days previously, found the tank had disappeared and some broken portions of it were subsequently found on the river bank. The eels had disappeared and were not recovered.

The applicant brought a claim for compensation for malicious injury under the provisions of the Damage to Property (Compensation) Acts, 1923 to 1933, the respondent being the Minister for Finance. The Circuit Court Judge found that the tank had been maliciously broken. He assessed the value of the tank at £3 and of the eels at £60 and gave a decree for £63. The respondent appealed The two Judges of the High Court (Johnston and Gavan Duffy JJ.), who heard the appeal, differed in opinion, and the decree of the Circuit Court Judge was affirmed. The respondent appealed to the Supreme Court.

The Supreme Court (Sullivan C.J., FitzGibbon, Murnaghan and Meredith JJ.) being equally divided as to the award of compensation for the eels but being unanimous that no compensation could be awarded for the tank the decree of the Circuit Court Judge was affirmed but varied by reducing the amount of the award to £60.

Per Sullivan C.J. (FitzGibbon J. concurring):—In the absence of evidence of physical injury to the eels, no compensation could be awarded for them, and, as the injury to the tank did not exceed £5 in amount, no compensation could be awarded for it.

Per Murnaghan and Meredith JJ.:—The loss of the eels was an "injury to property" within the meaning of the Malicious Injuries Acts.

Per Curiam:—The tank was not the "dam, floodgate, or sluice of any fishpond" within the meaning of s. 32 of the Malicious Damage Act, 1861, and, as the damage to it did not exceed £5 in amount, the claim in respect of it was not covered by s. 51 of that Act.

Cur. adv. vult.

Johnston J.: —

This case, as it was presented to us in Mr. Black's admirable argument on behalf of the Minister for Finance, appears to involve—mainly, at any rate—one single question, namely, the question whether the loss by the applicant of his eels through the destruction of the tank by the guilty parties was a consequential loss in respect of which the owner can get no compensation. Judge McElligott rejected the idea that there was anything consequential in that part of the claim and I agree with him.

It is true that fish in their native element are of the nature of animals ferae naturae, and are not the subject of private ownership; but the situation is entirely altered when the fish have been captured and are in a state of confinement. I take the following statement of the law from an authoritative text-book (1):—"Living animalsferae naturae useful for the food of man and reclaimed— that is, actually tamed or in confinement—were the subject of larceny at common law, for the taking of them is a taking out of the owner's possession." The authorities cited amply support that proposition. Of those authorities I may perhaps refer to the case of Pollexfen v. Crispin(2)and to the following passage in Hawkins' Pleas of the Crown, 8th ed., p. 149:—"Neither shall he who takes a fish in a river or other great water, wherein they are at their natural liberty, be guilty of felony as he may be who takes them out of a trunk or pond. . . . But it is agreed that one may commit larceny in taking such or any other

creatures ferae naturae if they be fit for food and reduced to tameness, and known by him to be so." I may say, in passing, that the word "trunk" is the word that was anciently used to describe a large floating box for the confinement of fish, according to the Oxford Dictionary. The editors there cite the following passage from Blackstone's Commentaries, Vol. X, Pt. I, p. 427:—"If the pheasants escape from the mew or the fishes from the trunk, they become ferae naturae again."

Now, here we have the case of a man who constructs a huge "trunk" of larchwood, three feet by ten by five in size, which he places in the River Fergus in County Clare, attached to the bank by two stout chains, and which he fills with a large quantity of live eels acquired by himself per industriam. Can this not be regarded as a composite piece of personal property consisting of "trunk"and captured eels, the whole awaiting dispatch to the London market for sale? This composite piece of property was destroyed in its entirety, and as a single entity, by some person or persons who broke the trunk. The direct and immediate result of that act was that the fish were restored to their native element, and the applicant's property in them was lost just as effectually as if the whole contraption had been blown up by an explosion of dynamite. It is, in my opinion, a mere play upon words to suggest, as the respondent does, that the only thing injured was the tank or trunk. The captured eels, the subject of the applicant's industry, were lost as the direct result of the guilty party's act, just as any inanimate object or substance placed in the tank might have been lost by being carried away by the current or (if the tank has been watertight) being dissolved by the action of the water. That was the view of the facts that Judge McElligott took, and I think it was open to him to have done so.

After the passing of the Local Government Act, 1898, which extended vastly the liability of the ratepayers in respect of malicious damage to property and handed over the. "business" of the presentment sessions and the Grand Juries in relation thereto to the County Courts, a spate of decisions began to flow from the Courts—the County and the Assize Courts and the Court of Appeal—that was almost overwhelming; and the principle of the non-liability of the ratepayers for anything more than the actual damage done was enunciated time and again. This point of view was based on the very sensible ground that the ratepayers of the county, being innocent of blame, "ought to" be burdened with pecuniary responsibility to the least possible extent and that the very narrowest principle of liability should be applied. The decisions that followed the passing of the Act of 1898 are all set out in Mr. Henry Moloney's excellent text-book; but I should...