R (Murphy) v Wexford Justices

CourtQueen's Bench Division (Ireland)
Judgment Date01 January 1894
Date01 January 1894

Reg. (Catherine Murphy)

Justices of Wexford.

Vol. II.] ft. B. & EX. DIVISIONS. 81 than shall bo reasonably requisite, and the person exposing the Q- B. Div. same for sale shall refuse to sell the same to such officer, inspector, 1893, or constable, such person shall be liable to a penalty not exceeding M ^xraH £10." The words of the first clause are met by the facts of this M'Gbath. case, for the butter was exposed for sale. As there is no appearance for the respondent we can award no costs. The case will be remitted with our answer, that the Justice was not correct in his determination in the premises, and that he do proceed therein according to law. Johnson and Gibson, JJ., conourred. Solicitor for appellant: P. S. Connolly. a. e. r. j. REG. (CATHERINE MURPHY) v. JUSTICES OF Q. B. Div. WEXFORD (1). _1M93- Nov. 4, 18. Petty Sessions Act, procedureOrder of JusticesRoad contractorOrder authorizing road contractor to enter upon landsExceptions to he negatived Time to he limitedGrand Jury (Ireland) Act, 1836 (6 Sr 7 Wm. 4, c. 116), s. 162. An order of justices, made under 6 & 7 Wm. 4, c. 116, s. 162, authorizing a road contractor under the Grand Jury to enter upon lands for the purpose of taking gravel stones, &c, must show upon its face that the lands are not of the kinds excepted by the section, and should sufficiently limit the duration of the authority thereby given. Fitzpatrick v. Pyne (13 Ir. C. L. R. 32) discussed. Reg. (Bentham) v. Justices of Dublin (14 L. R. Ir. 443) discussed and distinguished. In applications under this section, where the procedure by summons under the Petty Sessions Act, 1851, is adopted, the order of the Justices is not the entry in the Petty Sessions Order Book, but the document which is issued to the contractor as his authority. Certiorari. Motion to make absolute, notwithstanding cause shown, a conditional order, dated 12th July, 1893, for a writ of certiorari to (1) Before Sib P. O'Beien, C.J., and Holmes and Madden, JJ. 82 THE IRISH REPORTS. [1894. The facts appeared to be as follows :At the Summer Assizes, 1891, the Grand Jury of county Wexford entered into a contract with Philip Kelly for keeping in repair a portion of the public high road in that county. On the 25th April, 1893, Kelly obtained and had served upon Catherine Murphy a summons in the following terms:* "PETTY SESSIONS (IRELAND) ACT, 1851 (14 & 15 VICT. c. 93). Foem B.Summons. Philip Kelly, Road Contractor, \ petty Sessions District of New ltoss, Palace, Complainant; I County of Wexford. Catheeine Murphy, Mylarspark, f _ _Defendant. J Wheeeas a complaint has been made to me that defendant did, at Mylarspark, county Wexford, on the 25th April, 1893, refuse to allow complainant, as road contractor, to enter upon your land at Mylarspark, where there is an open quarry, to obtain material for the repair of his contract road in the townland of Ballylane, which is the most convenient quarry, and that defendant show cause why an order should not be made by Q. B. Div, remove and quash all and singular orders and adjudications of the *893- above-named Justices, made at New Eoss Petty Sessions District The Queen of the gaid countyj on the 26th May and 9th June, 1893, on Justices op the hearing of an application in that behalf authorizing one Philip Wexford Kelly (in the orders described as Philip Kelly, road contractor, complainant) to enter certain lands in the occupation of the said Catherine Murphy, for the purpose of digging for, raising, and carrying away, in and out of said lands, any stones and other materials wanted for the keeping in repair the public high road, in the orders in the premises described, on the grounds that said orders were made without and in excess of jurisdiction ; that the order of the 9th June was other and different from the order of the 26th May; that the order of 26th May was final and determined the jurisdiction of the Justices; that the orders of the 26th May and 9th June were bad in substance, and that neither order negatived the exceptions in that behalf contained in section 162 of 6 & 7 Wm. 4, c. 116; and that they did not define, specify, or limit the time or period during or within which either of them was to have operation. Vol. II.] Q. B. & EX. DIVISIONS. 83 the Justices at New Ross Petty Sessions to enter on your land to obtain said Q. JS. Div, To Catherine Murphy, of Mylarspark." This " complaint" came on for hearing at New Ross Petty Sessions, and after evidence had been given before Messrs. Brehon and Hearn, JJ.P., an order was made on the 26th May, 1893, which was thus entered in the Order Book of the Court: " Order granted to Philip Kelly, contractor, to enter on the lands of Catherine Murphy, at Mylarspark, to quarry and carry away material for the repair of his contract road at Ballylane, it being proved to our satisfaction that stones and material could not be conveniently procured elsewhere, and case adjourned to next Court-day to appoint arbitrators as to damage: 6 & 7 Wm. 4, c. 116, sect. 162." On the 9th June, the case coming on (before General Napper and Messrs. Brehon and Hearn, JJ.P.), for the purpose of appointing the necessary arbitrators, the following order was entered on the Order Book : "Order granted, under the provisions of 6 & 7 Wm. 4, c. 116, sect. 162, case having been adjourned from last Court-day to appoint appraisers. P. W. Finn, county Carlow, appointed by the contractor. Catherine Murphy did not appear to appoint an appraiser, although notice has been served on her to appear on this day. Nicholas Cooney of Mylarspark, appointed by James C. Gala van, Esq., being a neighbouring magistrate. Order to continue in force during period of contract." Prior to the hearing of the 26th May, the Clerk of Petty Sessions prepared, under the direction of the presiding Justice, an order or draft-order (exhibited in the affidavit of the Clerk as "B"), which, with certain alterations and corrections, was signed by Mr. Brehon, J. P., immediately after the hearing on the 9th June, Mr. Brehon initialling the alterations and interlineations. This document was dated the 9th June, 1893, and a one-shilling stamp was affixed...

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