The King (Urban District Council of Athy) v The Justices of County Kildare

JudgeK. B. Div.
Judgment Date19 December 1911
CourtKing's Bench Division (Ireland)
Date19 December 1911
The King (Urban District Council of Athy)
The Justices of County Kildare (1).
The King (Donoghue and Others)
The Justices of County Cork (1).

K. B. Div.











Justices — Summary conviction — Defect cured — Power to amend — 40 & 41 Vict. c. 56, s. 76 — petty Sessions order-book — Validity of present form — Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict. c. 93), ss. 21, 36 — Assault — Binding to good behaviour — Showing jurisdiction on face of order — Party aggrieved declining to prosecute — Recital in complaint sufficient — 24 & 25 Vict. c. 100, s. 4225 & 26 Vict. c. 50, s. 9 — Sanitary authority — Water supply — Order of Justices imposing penalties for neglecting to supply water to house, not described as dwelling-house — Penalties imposed for neglect to supply water after seven days from request and payment of water-rate — No statement of tender of rate — Waterworks Clauses Act, 1847 (10 & 11 Vict. c. 17), ss. 44, 45.

Held, the Court being satisfied that the house was in fact a dwelling-house and that the omission of the word “dwelling” did not mislead or prejudice the defendants, or affect the merits of the case, that assuming the order to be defective by reason of the omission of the word “dwelling,” the defect was cured by the provision in s. 76 of the 40 & 41 Vict. c. 56, that no conviction shall be held void or quashed by reason of any defect, omission, or variance in the summons, &c., upon which the same shall purport to have been made, provided same shall not have misled or prejudiced the defendant, or affected the merits of the case.

Per Palles, C.B. The subsequent clause in s. 76, giving power to amend a summons, charge, or information, does not apply to certiorari proceedings in the King's Bench Division.

Per Palles, C.B., and Gibson, J. The present form of Petty Sessions order-book approved of by the Lord Lieutenant in Council in purported exercise of the power given by s. 36 of the Petty Sessions (Ireland) Act, 1851, is not authorized by that section, and is, per Palles, C.B., inconsistent with the spirit and intention of the Act, per Gibson, J., inaccurate and misleading, in so far as it alters the heading “Cause of Complaint” in the form of order-book originally prescribed by the schedule to the Act, to “Cause of complaint as set forth in summons.”

But held, per Curiam, that a conviction founded on a summons, which conviction set out on its face a good cause of complaint, was not invalidated merely by reason of the entry being in such present form.

When Justices convict summarily of an assault under 24 & 25 Vict. c. 100, s. 42, they may further order the defendant to find sureties for good behaviour.

Quœre, per Lord O'Brien, L.C.J., and Gibson, J., when the Justices acquit of the assault, but direct the defendant to find sureties for good behaviour, must the order state on its face facts showing jurisdiction to give such direction?

In a conviction by Justices under 24 & 25 Vict. c. 100, s. 42, for assault, upon a summons issued by a person other than the party aggrieved, under the provisions of 25 & 26 Vict. c. 50, s. 9, the complaint as set out in the conviction contained an averment, following the form of the summons, which contained a similar averment, that the party assaulted had declined to prosecute.

Held, that the conviction was good, and that it was not necessary that the conviction should state that the Justices had found that the party aggrieved had declined to prosecute Rex (Johnston) v. Justices of Co. Armagh (43 I. L. T. R. 112) not followed.

The King (Urban District Council of Athy) v. Justice of Co. Kildare.


Miss Maire Malone of Barrack Street, Athy, was complainant in a summons in which the prosecutors herein, the Athy Urban District Council, were defendants. The summons set out as follows:— “Whereas a complaint has been made to me that the said Maire Malone, being the occupier of a house, the annual value of which does not exceed £10, situate in Barrack Street, Athy, in said County of Kildare, and within the Urban District of Athy, and in which street-pipes have been laid down by you, and having paid to you the amount of water-rate payable in respect of such house for the period of one quarter, did on the 6th day of March, 1911, request you as the sanitary authority for the Urban District of Athy to lay down communication-pipes and other necessary works for the supply of said house with water for domestic and other purposes, and that you neglected within seven days, and still neglect, to lay down such communication-pipes and other necessary works. This is to command you,” &c.

The summons came on for hearing before the Justices at Athy Petty Sessions, and an order was made by the Justices present. This order was set out in a certificate purporting to be made under the provisions of the Petty Sessions (Ireland) Act, 1851. The certificate was in the following form:—

“I certify that upon the hearing of a complaint that whereas a complaint has been been made to me” [The complaint as in the summons was then set out.] “An order was made on the 13th day of June, 1911, by the Justices present against the Athy Urban District Council to the following effect, viz., whereas a complaint has been made to me that” [here the complaint as in the summons was again set out], “and whereas it has been proved that the said Maire Malone was the occupier of said house, that the valuation of said house did not exceed £10, that a request was made by the said Maire Malone on the 6th day of March, 1911, to the said Athy Urban District Council to lay down Communication-pipes and other necessary works for the supply of said house with water for domestic purposes, and having duly paid to the said Athy Urban District Council the sum of 1s. 10½d., proportion of water-rate payable in advance in respect of such house, and the said Athy Urban District Council neglected to lay down said communication-pipes and other necessary works within seven days from the date of said request, and whereas the summons in this matter was duly issued on the 17th day of May, 1911: It is hereby ordered that the said Athy Urban District Council do forfeit to the said Maire Malone the sum of £5, and a further sum of £128, being the sum of 40s. calculated for sixty-four days from the 14th March, 1911, to the 16th May, 1911, being the number of days during which such neglect continued after the expiration of seven days from the date of such request and payment of said sum of 1s. 10½d., up to the date of issue of said summons, and for costs 3s. In default of payment of such sums of £5, and further sums of £128, and costs 3s., forthwith, said sums to be levied by distress and sale of defendants' goods and chattels. The service of the said summons was duly proved.”

The prosecutors herein obtained a conditional order for a writ of certiorari to quash the order made by the Justices on the grounds:—1. That the order was made without and in excess of jurisdiction. 2. That the order was bad upon its face, inasmuch as it did not state (a) that the said Maire Malone was the occupier of a dwelling-house; (b) that as regarded the sum of £5 ordered to be paid by the said order, that the Urban District Council of Athy neglected to lay down communication-pipes for seven days after the request to lay down the same, and after the payment or tender of the proportion of water-rate; (c) that as regards the sum of £128 ordered to be paid by the said order, that the neglect to lay down the said communication-pipes continued after seven days from the making of such request and tender. 3. That the amount awarded by the order was excessive. 4. That the Act 10 Vict. c. 17 did not apply to cases where the payment of the said water-rate had been made, but only where there had been a request and tender.

Miss Maire Malone filed an affidavit by way of cause against making the conditional order absolute, in which she stated as follows:—

“I say that the evidence given on the hearing of the charge at Petty Sessions on the 13th June, 1911, was to the following effect. That I occupied the house and premises in Barrack Street, Athy, as tenant to Michael for several years past, the valuation of the same being £5. That I resided on said premises for which I was rated, and from time to time kept lodgers therein. That from February, 1910, I had made several applications to the council for the water supply. I beg to refer to the said application and the replies thereto” (which were given in evidence at the hearing). “I was cross-examined to ascertain if I required the council merely to have the water-pipes brought into the kitchen, or if I required them brought through the house to supply both. I say that it was admitted on behalf of defendants at the hearing that due application had been made by me to have communication-pipes laid down, and other necessary works for the supply of my house with water, and that tender of the required amount had been duly made and refused, and that the council had neglected to comply with such request. The sole questions at issue in the case were: 1, that I was not in bona fide occupation of the house and premises; 2, that I intended to allow my father, whose house adjoined mine, to use the water when supplied to me. Against both these contentions the Bench ruled.”

The present application was on behalf of the prosecutors to make the conditional order absolute, notwithstanding cause.

Ronan, K.C. (with him, Henry, K.C., and Swayne), for the prosecutors:—

The important question is, assuming that the order of the Justices is bad on its face, has the King's Bench Division power in certiorari proceedings to amend it? We contend that there is no such power. In England power was expressly given to the Court of Quarter Sessions on appeal...

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