The Queen (at the prosecution of O'Brien) v The Chairman and Justices of The County of Tipperary

• Jurisdiction: Ireland
• Judgment Date: 01 December 1879
• Date: 01 December 1879
• Court: Court of Appeal (Ireland)

Appeal.

Before BALL, C., MORRIS, C. J., DEASY and FITZ GIBBON, L. JJ.

THE QUEEN (AT THE PROSECUTION OF O'BRIEN)

and

THE CHAIRMAN AND JUSTICES OF THE COUNTY OF TIPPERARY

The Queen v. SykesELR 1 Q. B. D. 52.

The Queen v. De Rutsen Ibid. 55.

The Queen v. Justices of WicklowDLTR 11 Ir. L. T. R.32.

The Queen v. AdamsonELR 1 Q. B. D. 201, 205.

The Queen (Clitheroe) v. Recorder of DublianUNK Ir. R. 11 C. L. 412.

Simpkin v. Justices of BirminghamELR L. R. 7 Q. B. 482.

The Queen v. Rowell Ibid. 490.

Ex parte ToddELR 3 Q. B. D. 407.

The Queen v. Justices of TipperaryUNK 4 L. R. Ir. 264.

Clitheroe's CaseUNK Ir. R. 11 C. L. 412.

The Queen v. Justices of MiddlesexELR L. R. 6 Q. B. 781, 784.

The Queen v. MannELR L. R. 8 Q. B. 235, 239.

Day v. LuhkeELR L. R. 5 Eq. 366.

Claydon v. GreenELR L. R. 3 C. P. 511.

Cowles v. GaleELR L. R. 7 Ch. 12.

The Bethlem Hospital CaseELR L. R. 19 Eq. 457.

The Queen v. Justices of SurreyELR L. R. 5 Q. B. 87, 466.

—Transfer of license —"Removal" of licensed tenant—Eviction—Rights of owner of premises on resuming possession—New license—Number of existing licensed houses.

Von. VI.] Q. B., C. P., & EX. DIVISIONS. 129 which actions of a cognate character were formerly either sustained Q. B. Div. or defeated, nor do I call in aid the 20th Rule, Order XLII., made 1880. under the Act of 1875. Nunn v. It seems to me that, where an order or decree, final in its cha- Nunn. racter, made by a competent Division of the High Court in England, has determined the liability of the Defendant to a pecuniary demand, ascertains the amount, and orders the DefenÂdant to pay it, an action may be maintained here, where the DeÂfendant has come to reside, to enforce the liability thus created. The order created a duty which the Defendant was bound to fulfil ; and it would be a disgrace to our law if he could evade it by merely changing his residence from England to Ireland. If we are enlarging legal remedy, we are at least attaining substantial justice. Demurrer overruled. Solicitors for the Plaintiff : Casey 81. Clay. Solicitor for the Defendant : C. Taylor. THE QUEEN (AT THE PROSECUTION OF O'BRIEN) v. THE Appeal. CHAIRMAN AND JUSTICES OF THE COUNTY OF 1879. TIPPERARY (1). Nov. 21. Dec. 1. Licensing Acts-Public-house-Transfer of license-" Removal" of licensed tenant-Eviction-Rights of owner of premises on resuming possession-New license-Number of existing licensed houses. A purchased premises, subject to a lease, which then, and for several years previously, had been used by B, the assignee of the original lessee, as a licensed public-house. The lease expired, and in March, 1877, A evicted the tenant, who at the time held a renewal license in respect of the premises for the licensÂing year ending October, 1877. A did not seek for a transfer of the license during its continuance, and there was evidence that the premises had been left in a dilapidated condition when he obtained possession, and that some time was occupied in restoring them to a fit state of repair. B obtained for the adjoinÂing premises an interim license in April, 1877, and a certificate for a license at the General Licensing Sessions held in October, 1877, at which an application (1) Before BALL, C., Moms, C. J., DEASY and Fin GonoN, L. Jj. Appeal. by A for a license in respect of the evicted premises was refused, on the ground 1879. of the number of existing public-houses Held (affirming the decision of the Queen's Bench Division), that the case THE QUEEN v. did not come within the role in The Queen (Clitheroe) v. The Recorder of JUSTICES OP Dublin, and that the ground assigned. for refusing the application was suffi TIPPERARY. . cient. APPEAL from an order of the Queen's Bench Division disÂcharging a conditional order for writs of mandamus 'and certiorari directed to the Chairman and Justices of the County of TipÂperary, compelling them to grant a public-house license to the Prosecutor. The case is reported in the Court below in 4 L. R. Ir. 259, where the facts will be found stated. Webb, Q. C. and Sherlock, for the Prosecutor, the Appellant : The question is not so much whether the applicant has a statutable right to demand the magistrates' certificate as whether they have a statutable right to refuse it, and they have no jurisÂdiction to refuse the certificate, except upon the statutable grounds : The Queen v. Sykes (1) ; The Queen v. De Rutzen (2) ; The Queen v. Justices of Wicklow (3) ; if they act on any other it is a declining of jurisdiction : The Queen v. .Adamson (4). When the application is made, as in the present instance, in respect of premises which had been previously licensed, the number of previously licensed preÂmises cannot be considered : The Queen (Clitheroe) v. Recorder of...