The County Council of The County of Cavan and The Bailieborough Rural District Council v Kane, Brothers

• Jurisdiction: Ireland
• Judge: Appeal.
• Judgment Date: 17 November 1911
• Court: Court of Appeal (Ireland)
• Date: 17 November 1911

The County Council of the County of Cavan and the Bailieborough Rural District Council

and

Kane, Brothers (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.

1913.

Highway — Locomotive — Traction-engine — Excessive weight — Injury to highway — Nuisance — Special damage — Road authority — Right of, to sue — Practice — Appeal — Orders (1905) LVIII, R. 15; LXIV, R. 7 — Enlarging time — Mistake — Bona fide intention to appeal.

The use of a traction-engine which, by reason of its excessive weight does substantial and abnormal damage to a public road, adequate for ordinary traffic, is a public nuisance, even though the engine be constructed in compliance with the provisions of the Locomotive Acts, 1861 and 1865.

In such a case the duty cast upon a county council to repair such damage, and the liability of a district council to provide the funds for such repair, amounts to special damage, so as to make the owner of the traction-engine civilly liable at the suit of both bodies, suing jointly, for the cost of repairing the road.

Semble, such an action could be maintained by either body suing alone.

Where the unsuccessful party in a case stated under 27 & 28 Vict. c. 99. bona fide intended to appeal, to the knowledge of the opposite party, but fell into the mistake, shared by the opposite party, that the order was one from which an appeal could be taken within a year, and the position of the parties was unchanged; the Court of Appeal extended the time for appealing under Order LXIV, Rule 7.

Motion on behalf of the defendants for an extension of time for appealing from the order of the King's Bench Division, dated 21st June, 1910: see [1910] 2 I. R. 644, where the hearing in that Division is reported.

Notice of appeal had been served on the 21st June, 1911, but this was, as now admitted, too late.

The present application was grounded on the affidavit of Mr. John K. Currie, solicitor for the defendants, which stated that immediately after the decision in the Court below his clients instructed him to appeal, of which he informed the solicitor for

the plaintiffs; that all throughout it was the bona fide intention of his clients and himself to appeal, but that he erroneously supposed, as he believed also did the plaintiffs and their solicitor, that the order was a final one, from which there was a year within which to appeal; and that it was only when setting down the appeal that he was informed by the Registrar that it was late. He further stated that no alteration had taken place in...