R (MacKey) v Justices of County Limerick

• Jurisdiction: Ireland
• Judgment Date: 27 October 1897
• Date: 27 October 1897
• Court: Queen's Bench Division (Ireland)

Justices of Co. Limerick (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.

Fishery Acts — Fishery (Ireland) Act, 1842 (5 & 6 Vict. c, 106), ss. 103, 106 — Summary jurisdiction — Seizure of nets illegally fished in a river forming the boundary of two counties — Application for order of forfeiture at “the next Petty Sessions Court” — Jurisdiction of Justices of either county to hear the application — “Prosecution of an offence.”

Section 103 of The Fisheries (Ireland) Act, 1842, provides that in case an officer authorized to do so shall seize any nets illegally used, it shall be lawful for him “to retain the same in his custody until the next sitting of the Petty Sessions Court or any adjournment thereof in the district where the same shall be seized, and at such Petty Sessions Court it shall be lawful for the Justices to order the forfeiture of such nets.”

Section 106 of the same act provides that, “where any of the offences mentioned in” the Act shall be committed in or upon any lake or river forming the boundary between any two counties or sessional districts, “such offence” may be prosecuted in either of such counties or districts, and may be alleged and stated to have been committed therein.

On the night of the 3rd of January a water bailiff of the Board of Conservators of the Limerick district seized certain nets that were being illegally fished in M.'s eel weirs in the river Shannon, and applied on the 18th January to the Justices sitting at Castleconnell Petty Sessions for an order, and obtained an order, for their forfeiture. The river Shannon at this point forms the boundary between the counties Clare and Limerick, and between the Petty Sessions Districts of Doonass (Clare) and Castleconnell (Limerick). A Court of Petty Sessions sat at Castleconnell on the 4th, and at Doonass on the 15th of January.

M. having applied to quash the order:—

Held, that the proceeding to procure a forfeiture was a “prosecution of an offence” within sect. 106; that the words “next sitting of the Petty Sessions Court” meant the next sitting at which it was reasonably practicable to make the application; and that the Justices sitting at Castleconnell on the 18th had jurisdiction to make the order in question.

Held, further, that it was unnecessary for the Justices to set out on the face of their order that the Court was the Petty Sessions Court next sitting or an adjournment thereof.

Certiorari.

This was an application to make absolute conditional orders to remove and quash two orders of Justices, made at the Castleconnell Petty Sessions—the one dated the 1st February, the other the 15th March, 1897, directing in each case the forfeiture and sale of certain nets under section 103 of the 5 & 6 Vict. c. 106.

The present applicant, Anthony Mackey, was lessee of two eel weirs in the River Shannon, near Castleconnell, known as the Upper and the Lower Weirs. The close season for eels in the Limerick district is from the 1st February to the 30th June, inclusive. Mackey did not take out his licences for the year 1897 until the 5th January (1). Early on the morning of the 4th January, shortly after midnight, Captain Hall, Inspector of the Board of Conservators for the Limerick district, visited the Upper Weir, found the nets thereon in fishing order, and, acting under the powers contained in section 103 of the Act 5 & 6 Vict. c. 106, seized the nets and carried them off. The mid-thread of the river at the place in question forms the boundary of the counties Limerick and Clare. The nets thus seized on the Upper Weir were mainly on the Clare side of the middle of the stream; but both Upper and Lower Weirs were worked from the Limerick shore. The Petty Sessions district on the Limerick side is Castleconnell; that on the Clare side is Doonass. The next Court of Petty Sessions at Castleconnell, after the date of the seizure, was held on the 4th January, in the forenoon, the next thereafter on the 18th January. The next Petty Sessions Court at Doonass, after the seizure, was on the 15th. No application for forfeiture was made at the Petty Sessions for Castleconnell on the 4th. Captain Hall stated (in his affidavit as cause) that this would have been impossible; that he had no instructions to apply, and had not time to consult the Board or their solicitor, or direct their solicitor to apply. The solicitor for the Board attended however at the Castleconnell Sessions on the 18th, and applied for an order forfeiting the nets. The hearing of the application was adjourned to the 1st February, the next Court day, when an order of forfeiture and sale was made. Mackey's solicitor had been present in Court on the 18th when

the application was first made (immediately after a prosecution against his client for illegal fishing), and had notice in fact of the application, but no summons or formal notice of intention to apply, or of the adjournment. was served upon Mackey, and he was not present or represented on the 1st February.

This order Mackey now sought to have quashed on the special grounds (set out in the conditional order)—1, That the application was not made to the next Petty Sessions; 2, that there was no legal adjournment of the Petty Sessions at which the application was first made; 3, that the application was not made to the Petty Sessions of the proper Petty Sessions district. [The second objection was not pressed in the argument.]

On the morning of the 5th February, 1897, Captain Hall seized other nets on the Lower Weir, which (he stated) he had found thereon in fishing order, it being then the close season for eels. The nets so seized were mainly on the Clare side of the middle of the stream. An application for forfeiture was made at Castleconnell Petty Sessions on the 15th February, the next Court day after the seizure. On this occasion Mackey was represented; admitted ownership of the nets; but urged that the nets were hanging on the poles to dry, or, if let down for fishing, that an enemy had done this. After adjournments the application was finally...