R (M' Swiggan) v Londonderry JJ

• Jurisdiction: Ireland
• Judgment Date: 01 December 1904
• Date: 01 December 1904
• Court: Court of Appeal (Ireland)

The King (M'Swiggan)

and

Justices of County Londonderry (1).

Appeal.

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.

1905.

Justices — Jurisdiction — Certiorari — 14 £ 15 Vict. c. 92, s. 15 — Summary Jurisdiction Act.

An order, made in favour of the complainant by Justices on a summons for possession, stated that the tenancy was a weekly tenancy, but omitted to state the amount of the rent. It therefore failed to show on its face that the Justices had jurisdiction to make it. The defendant was put out of possession on a warrant issued under the order. The defendant subsequently applied for a conditional order for a writ of certiorari to quash the order:—

Held, by the Court of Appeal (affirming the decision of the King's Bench Division), that the conditional order should not be granted; that the granting of a writ of certiorari at the instance of a private person is a matter of discretion, and not ex debito justitiae; that, as the order had been executed and the writ of certiorari would not restore her to possession, no benefit would be gained by the applicant from the writ, as her rights were not prejudiced by the order, seeing that it was null and void.

The writ of certiorari is the apt means for preventing the infliction or continuance of any wrong by any unwarranted assumption of jurisdiction.

Appeal from an order, dated 28th October, 1904, made by the King's Bench Division, refusing a conditional order for a writ of certiorari to quash an order of Justices at Petty Sessions.

It appeared from the affidavit made by the solicitor for the appellant that a summons was brought at the suit of one Wm. K. Houston, of Magherafelt, against Annie M'Swiggan, of Magherafelt, to recover possession of a dwelling-house alleged to be held by her as tenant to William K. Houston, from week to week, which tenancy it was alleged had been determined by notice to quit. The summons was heard on 27th July, 1904. On the hearing of the summons it was contended, on behalf of the defendant therein, that the tenancy was monthly, and required a month's

notice to quit, whereas it was admittedly only a week's notice that was served. Evidence was given at the hearing of the summons showing that, at the time of the original letting, the defendant was required to lodge one month's rent, 17s. 4d., in advance: she also swore that she paid this amount monthly to the plaintiff up till 24th May, 1904. The landlord swore that the rent was 4s. a week, and that the letting was by the week. No receipt or rent book was produced. The Justices, by a majority of one, decided in favour of the landlord that the tenancy was weekly, and that the notice to quit was good. They made an order, which appears in the Petty Sessions Book in these terms: “Upon hearing of a complaint that the defendant on June 14, 1904, did unlawfully continue to overbold, &c., and refuse to deliver up to the complainant possession of a house and premises in Magherafelt, her weekly tenancy having been duly determined by notice to quit, defendant required to show cause why possession should not be delivered up.” The...