The King (at the prosecution of Joseph O'Neill) v The County Court Judge and Chairman of The Quarter Sessions, and Other The Justices of The Peace in and for The Country of Tyrone

• Jurisdiction: Ireland
• Judgment Date: 14 December 1916
• Date: 14 December 1916
• Court: King's Bench Division (Ireland)

The King (At the Prosecution of Joseph O'Neill)

and

The County Court Judge and Chairman of the Quarter Sessions, and Other the Justices of the Peace in and for the county of Tyrone (1).

K. B. Div.

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.

1917.

Justices — Jurisdiction — Title ousting jurisdiction — Trespass, Summary Trespass Jurisdiction (Ir.) Act, 1851 (14 & 15 Vict. c. 92), s. 8 — Claim to a right impossible in law.

Where a defendant to a summons seeks to justify the act complained of as done in exercise of a right which could not exist in law, he cannot have “fair and reasonable grounds for a bona fide claim of right,” and the justices should convict.

Where a defendant so seeks to justify a trespass and the justices convict, their order, though bad in form, will not be quashed on certiorari, as the Court will in such case exercise its discretionary power, and refuse to make the order absolute.

The prosecutor was convicted of trespass on the lands of C. He admitted the entry on the lands, but claimed it was made in exercise of a right of way. The right claimed was a public right of way from a public road across C.'s lands to a private bathing-place on the land of R., C.'s neighbour. The justices stated in their order that the right claimed was not “substantially supported by evidence.”

Held, that the right claimed being one impossible in law, the conviction was good; and, even if the justices' order as made was bad in form, the Court in its discretion would not quash it on certiorari.

Certiorari.

Motion to make absolute a conditional order for certiorari to bring up and quash a conviction of trespass made against the prosecutor by the justices of the peace for the County of Tyrone, sitting at Cookstown Petty Sessions, on the 8th September, 1916, and the order of the chairman and justices made at Dungannon Quarter Sessions, on the 9th October, on the appeal from the conviction at petty sessions.

On the 6th September, 1916, one Richard Charles charged the prosecutor in a summons with trespass on the lands of Tullagh, of

which Charles was tenant. Prior to the hearing the prosecutor served notice of justification of the act complained of, on the ground that it was done in exercise of a right of way. The complaint was heard at Cookstown Petty Sessions, when the prosecutor appeared as defendant personally, and admitted the act of being, at the date mentioned in the summons, on Charles's lands, but stated that his presence on the lands was in exercise of a right of way across Charles's lands to the farm of one Reid, and thence to the river Ballinderry. The prosecutor alleged that such right of way existed for the purpose of enabling persons to bathe in the river at a place in Reid's land. The bench having refused to allow the prosecutor to give evidence, the prosecutor called one James Lennox, who deposed that he and others had used a way across Charles's lands to Reid's farm and to the river for many years. The justices, having proof of Charles's ownership of the lands and the admission by the prosecutor of his entry on these lands, convicted, the curial portion of their order being as follows:— “The defendant pleaded a right of way, but, in the opinion of the Court, did not substantially support it by evidence. Convict defendant, and order him to pay for fine 1s., and for costs 2s. 6d.” The prosecutor appealed to quarter sessions. The appeal was heard at Dungannon Quarter Sessions on the 9th October, 1916, when the defendant, who was professionally represented by Mr. Malone, his solicitor, gave evidence to show user by himself and others of a way across Charles's lands to Reid's farm and the river. His solicitor stated, in reply to the chairman, that the right claimed was a public right of way, and the...