R (Daly) v Justices of Cork

• Jurisdiction: Ireland
• Judgment Date: 25 February 1898
• Date: 25 February 1898
• Court: Queen's Bench Division (Ireland)

Reg. (Daly)

and

Justices of County Cork (1).

Q. B. Div.

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

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.

1898.

Summary jurisdiction — Procedure — Summons — Order — Costs — Several orders made upon one summons — Certiorari — Summary Jurisdiction (Ireland) Act (14 & 15 Vict. c. 92), ss. 20, 24 — Petty Sessions (Ireland) Act (14 & 15 Vict. c. 93), ss, 20 (1), 22 (9).

The Irish Land Commission summoned Daly under 14 & 15 Vict. c. 92, s. 20, for trespass by goats, alleging in the one summons eight trespasses on several days. The Justices imposed fines in respect of each trespass, and made up eight distinct orders, with 5s. costs in each. On certiorari:—

Held, by Sir P. O'Brien, L.C.J., and Gibson, J. (diss. Murphy, J.), that these orders were bad; that the trespasses alleged in the one summons were one case; that there should therefore have been one order thereon, with costs not exceeding 20s.; and that accordingly, though the orders were on their face regular, the Court had jurisdiction, notwithstanding sect. 24 of the Summary Jurisdiction (Ireland) Act, 1851, to remove and quash them on certiorari, inasmuch as they were filled up misleadingly.

Certiorari.

This was an application to quash eight orders made by the Justices of county Cork, sitting at Coona Petty Sessions on the 1st September, 1897. The Irish Land Commission summoned Mrs. Catherine Daly for tresass by goats. There was but one summons taken out and served, alleging acts of trespass upon eight different days:—“Whereas a complaint has been made to me that you the defendant did allow goats, our property, to trespass on the complainant's lands at Kilcoran … as follows:—1st August, six goats; 2nd August, three goats,” and so on. The justices heard the matter (the defendant bing present), and made eight separate orders, which were separately entered in the order book, imposing a fine in each, and 5s. Costs in each.

R. Healy, for Mrs. Daly, now moved to make absolute a conditional order for a writ of certiorari to remove and quash these

orders on the ground that the Justices had thus purported to award more than 20s. costs in one case.

M'Carthy Mahony, for the Irish Land Commission, showed cause.

Cur. adv. ult.

R. Healy, for Mrs. Daly, now moved to make absolute a conditional order for a writ of certiorari to remove and quash these orders on the ground that the Justices had thus purported to award more than 20s. costs in one case.

M'Carthy Mahony, for the Irish Land Commission, showed cause.

Gibson, J.:—

The Land Commission summoned Daly under the Summary Jurisdiction Act, 1851, s. 20, for trespasses committed by certain goats, the summons charging eight cases of trespass on different days. The Justices, notwithstanding that there was only one summons, made eight substantive orders, with 5s. costs in each, amounting altogether to £2. The order book refers to the summons, but is entered up in the same way as if there had been eight separate summonses, each dealing with a distinct trespass. The applicant's counsel contends that it was illegal to sub-divide the summons, which was one complaint, and award separate costs exceeding £1, as, under sect. 22, sub-sect. 9, of the Petty Sessions Act, the complainant's costs were expressly limited to twenty shillings, whether the complaint related to several charges or not. For the Land Commission, it is argued that separate orders may be made on one summons containing several causes of complaint; that the limit of costs relates to each separate charge considered as a distinct complaint; and that, as the Summary Jurisdiction Act excludes certiorari, and the order book is on its face regular, there is no jurisdiction in this Court to quash the orders.

The case raises three questions. What is the construction of the Petty Sessions Act? What was the complaint on which the adjudication was made? And what is the effect of the provision taking away certiorari?

The summons is prescribed by the statute, and is process to enforce appearance. It contains what the statute describes as the complaint; it may be civil or criminal; and the complaint, like a summons and plaint, a bill of complaint, or indictment, may comprise several independent charges. Under the 39th section no objection lies to the summons for any defect in substance: Rodgers v. Richards (1), or in form: Neal v. Devenish (2), or for any

variance; and the 76th section of the County Court Act of 1877 contains wide powers of amendment of the summons, which is however recognised as the ordinary basis of jurisdiction.

Where one summons comprises several charges, there ought to be a distinct adjudication on each, just as in the case of an indictment; but such adjudications, though severable for some purposes, form part of one order or conviction made on the complaint, though such order or conviction may not be entire: Conybeare's Case (1); Shea v. The Queen (2). So far as I can discover, the course taken in this case of treating one summons with eight charges as identical with eight summonses, authorising eight substantive orders with costs, is without precedent. There was upon the summons only one complainant and one complaint; and, whether the complaint contains twenty charges or one, the restriction as to costs applies. No doubt the defendant's costs, as well as the complainant's, are subject to the same limit; and, it is said, it is unreasonable that a...