R v Queen's County Justices

JudgeK. B. Div.
Judgment Date22 January 1908
CourtKing's Bench Division (Ireland)
Date22 January 1908
The King (De Vesci)
The Justices of Queen's County (1).

K. B. Div.











Grand Jury (Ireland) Act, 1836 (6 & 7 Wm. 4, c. 116), sect. 162 — Order of Justices authorizing entry on lands to take road materials — Decision of Justices that the lands are not an orchard not conclusive — Certiorari — “Orcharding out” — Signature of order — Justices — Bias.

Held, that the order must be quashed on the ground of bias.


The prosecutor, the fifth Viscount de Vesci, was the owner of lands adjoining the town of Abbeyleix in Queen's County, on which there was a gravel pit, known as “Jelly's Pit.” The prosecutor's predecessor in title, the fourth Viscount de Vesci,

having been of opinion that the further working of the pit on its western side would be undesirable, planted, in the year 1903, a fringe of two or three rows of apple trees on the land adjoining the west side of the pit, for the purpose of forming an orchard. The trees were planted up to the brow of the pit, and covered over half an acre. The fourth Lord de Vesci died on the 6th July, 1903, and between the date of his death and the beginning of the year 1905, over 500 additional apple trees were planted by the prosecutor on an area covering two and a-half acres, at a cost of about £40. It was alleged in an affidavit made by Mr. Fitz Herbert, who was the prosecutor's agent, and had also been agent to the fourth Viscount de Vesci, that since such planting the place had been maintained as a genuine and bonâ fide orchard under the management of Lord de Vesci's gardener.

In the year 1906 the county surveyor of Queen's County entered into an agreement with the prosecutor for the supply of stones for the repair of roads in the neighbourhood of Abbeyleix, to be paid for at so much a ton. These stones were not taken from Jelly's Pit, but from other pits at some little distance.

On the 18th December, 1906, the Rural District Council of Abbeyleix passed a resolution requesting the County Council “to instruct their surveyor to take the necessary steps to enter and remove from Jelly's Pit such materials as might be required for the repair of the roads in the locality, notwithstanding any opinion that might be given by the solicitor to the County Council.” Mr. Arthur MacMahon, J.P., who was the Chairman of the Rural District Council, and presided on the occasion, stated that he would do what he could in support of the resolution. On the 14th January, 1907, the County Council of the Queen's County passed a resolution, “That if the alternative pits offered by the owner are unsuitable, the county surveyor is hereby directed to seek an order from the magistrates to enter Jelly's Pit, for such materials he may require for the repairs of the roads in the locality.” On the 27th April, 1907, the county surveyor wrote to Mr. Fitz Herbert enclosing a copy of the resolution of the 14th January, and inquiring on what terms Lord de Vesci would supply road materials. Some further correspondence passed between the county surveyor and Mr. Fitz Herbert, but no terms were agreed to. On the 12th June, 1907, the County Council, on the motion of Mr. Arthur Mac Mahon, passed a resolution, “That the resolution of the 14th January last, with reference to the obtaining materials for the repair of roads at Abbeyleix, be rescinded, and that the county surveyor proceed at once to obtain an order from the magistrates to enter Jelly's Pit.”

A summons was issued on the 2nd July, 1907, on the complaint of the county surveyor, and served on Lord de Vesci, requiring him to show cause why an order should not be made authorizing the complainant to enter on the lands of Knocknane, known as Jelly's Pit, and take road materials as therein mentioned. The summons was heard at Abbeyleix Petty Sessions, on the 6th July, 1907. There were seven magistrates on the Bench, including Mr. Arthur Mac Mahon and a Mr. James Mac Mahon, also a member of the Abbeyleix Rural District Council, and Mr. Patrick A. Meehan, Chairman of the County Council. When the case was called on, Mr. Arthur Mac Mahon and Mr. James Mac Mahon left the Bench, and the case was heard by the remaining magistrates. Objection was made by Lord de Vesci's solicitor that the magistrates had no jurisdiction to make the order sought, as the lands in question were a bonâ fide orchard. Mr. Fitz Herbert and Lord de Vesci's head gardener were examined in support of this contention, and deposed to the facts above mentioned as to the planting of the orchard. Mr. Fitz Herbert admitted on cross-examination that the orchard had been originally planted for the purpose of preventing further quarrying in Jelly's Pit, but stated that, since then, the entire area of about 21/2 acres had been maintained as a genuine orchard. The evidence of these witnesses was not contradicted. An order was made by the magistrates (Mr. Meehan dissenting) to the following effect:— “No jurisdiction; application being proved to the Justices' satisfaction to apply for entry into a bonâ fide orchard.”

On the 8th July, 1907, a meeting of the County Council was held, presided over by Mr. Arthur Mac Mahon, at which a letter was read from the solicitor of the County Council referring to the decision of the magistrates as a most unfortunate one, and advising the County Council to apply for a similar order at next Abbeyleix Petty Sessions [see this letter set out in the judgment of Lord O'Brien, L.C.J., post, pp. 295, 296]. The following resolution was then passed:— “That, acting on the advice of our solicitor, we hereby direct our county surveyor to again apply to the magistrates at Abbeyleix Petty Sessions for an order to enter Jelly's Pit for road materials.”

Pursuant to this resolution a new summons was issued on the 3rd October, 1907, on the complaint of the county surveyor, and served on Lord de Vesci, requiring him to show cause why an order should not be granted authorizing the complainant to enter the lands of Knocknane, and to take road materials as therein mentioned. This summons came on for hearing at Abbeyleix Petty Sessions on the 26th October, 1907, before a Bench of seven magistrates, including Mr. Arthur Mac Mahon and Mr. Patrick A. Meehan; Lord de Vesci's solicitor raised the following preliminary objections:— (a) That the subject-matter of the summons was identical with that of the summons dealt with by the order of the 6th July, 1907, and was already decided, and that the Court and the county surveyor were estopped by the said order from re-opening the matter; (b) That the said Arthur Mac Mahon, J.P., should not adjudicate upon the said summons, and that he should leave the Bench, upon the ground of bias, inasmuch as he had taken an active part in promoting the proceedings which the County Council of which he was a member had directed to be instituted, and in which the real prosecutors were the members of the said County Council. The Resident Magistrate and another magistrate being of opinion that they were estopped by the order of the 6th July, 1907, refused to adjudicate, and left the Bench. Mr. Meehan then took the place of chairman vacated by the Resident Magistrate. Lord de Vesci's solicitor objected to Mr. Meehan taking the chair, on the ground of bias, and renewed his objection that the order of the 6th July operated as an estoppel. Both Mr. Mac Mahon and Mr. Meehan assisted in adjudicating. Mr. Mac Mahon stated that he had reconsidered the matter since the 6th July, when he had withdrawn from the Bench. Mr. Meehan announced that the magistrates present had decided to hear the case unless Mr. Fitz-Herbert, on behalf of Lord de Vesci, would undertake to open a pit on lands in Lord de Vesci's occupation, and provide materials to the county surveyor's satisfaction. Mr. Fitz Herbert was unable to give this undertaking. The case was then heard. Witnesses were examined on behalf of the complainant to prove that road materials could not be conveniently procured elsewhere than in Jelly's Pit. It was alleged in Mr. Fitz Herbert's affidavit—but this was contradicted in the affidavit of the county surveyor hereinafter referred to—that no evidence was given by these witnesses to show that the lands in question were not an orchard. Mr. Fitz Herbert and Lord de Vesci's head gardener were examined on behalf of Lord de Vesci, and repeated the evidence given by them on the former hearing. The magistrates made the following order:— “That the plantation at Jelly's Pit is not an orchard; and, on hearing the evidence, the Bench are unanimously of opinion that this application to enter Jelly's Gravel-Pit should be granted. Order accordingly.” This order was signed only by Mr. Patrick A. Meehan.

Lord de Vesci obtained a conditional order for a writ of certiorari to bring up for the purpose of being quashed the order of the 26th October, 1907, on the following grounds, inter alia:— That the subject-matter thereof was res judicata, having regard to the order of 6th July, 1907; that the order of the 6th July estopped the complainant from proceeding with the summons of the 3rd October, and the magistrates from adjudicating thereon. That upon the evidence the land in question was an orchard; and that, by an erroneous finding that it was not an orchard, it was not competent for the magistrates to confer jurisdiction upon themselves to deal with the summons of the 3rd October, 1907. That two of the adjudicating magistrates, namely, Patrick A. Meehan and Arthur MacMahon, were biassed and interested, and should not have adjudicated upon the summons of the 3rd October, 1907.

An affidavit was made by Mr. Arthur MacMahon, and filed by way of cause against making the conditional order absolute, in which he stated that, in adjudicating on the hearing on the 26th October, he was in no way biassed or prejudiced in...

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