The Queen (Reeves) v Inspectors of Irish Fisheries

• Jurisdiction: Ireland
• Judgment Date: 31 January 1887
• Date: 31 January 1887
• Court: Queen's Bench Division (Ireland)

Q. B. Div.

Before O'BRIEN and JOHNSON, JJ.

THE QUEEN (REEVES)

and

INSPECTORS OF IRISH FISHERIES

Moore-Smyth v. The Duke of Devonshire Unreported

The Queen v. Haynes UNK7 Ir. L. R. 2.

Inspectors of Irish Fisheries UNKIr. R. 9 C. L. 46.

Mandamus Inquiry as to legality of weir Previous inquiry 26 & 27 Vict. c. 114.

VoL. XX.] B., C. P., & EX. DIVISIONS. 15:5 It does appear to me, that but for the great respect I feel for the Appeal. judgment of the Exchequer Division, I would not have thought 1887. the proposition capable of argument. There is a covenant which ATTY.-GEN. v. is nothing more or less than this : " A B covenants with C D, that MURRAY. he will, by his will, make C D his residuary legatee :" he makes his will, and makes Q.D his residuary legatee ; and that that residuary legatee is to differ in this very material respect from all other residuary legatees, viz. that his testator's residuary estate is not part of his assets, seems to me to be a contradiction in terms. Solicitor for the appellant : R. O'B. Furlong. Solicitors for the respondents : D. T. Fitzgerald. THE QUEEN (REEVES) v. INSPECTORS OF IRISH Q. B. Dw. FISHERIES (1). 1887. Mandamus-Inquiry as to legality of weir-Previous inquiry no bar-26 45. 27 Vict. c. 114. An inquiry having been held in the year 1864, under the provisions of the Salmon Fishery Act, 1863, as to whether a certain weir was an obstruction to navigation, and the Commissioners having found it to be so, declared it illegal, and ordered it to be removed. The owner of the weir, in 1886, applied to the Inspectors of Fisheries to hold another inquiry, contending that circumstances as to navigation had altered in the meantime. The Inspectors refused to hold a second inquiry, on the ground that the result of the former one was a bar to their so doing. Upon an application for a mandamus to compel them to hold another inquiry : Held, on the authority of Moore-Smyth v. The Duke of Devonshire (UnÂÂreported), that the previous inquiry was no bar to another being now held. MOTION on behalf of R. W. C. Reeves, to make absolute a conÂÂditional order, dated the 8th. November, 1886, that a writ of manÂÂdamus do issue, directed to the Inspectors of Irish Fisheries, directing them to hold an inquiry into the right of the said (1) Before O'B am and JOHNSON, VOL. XX. Q. B. Div. R. W. C. Reeves to obtain a certificate authorizing him to erect 1887. and use a fixed net for catching salmon or trout on the site THE QUEEN of the fixed net, projecting into the River Shannon, by him v. Is. FISHERY claimed to have been legally erected and fished in the open season 1NspEcroRs. of 1862, notwithstanding the order of the Special Commissioners of Irish Fisheries, dated the 29th March, 1864, whereby it was declared that the said net was illegal, and it was ordered that it should be removed. In support of the application affidavits were filed, stating that the navigation in the harbour of Rusheen, which was injuriously affected in 1864, consisted almost exclusively of turf-boats, going to and from Knock and Limerick ; that such traffic had now nearly ceased, and that consequently the weir, if re-erected, would no longer be injurious to the navigation of the harbour. Atkinson, Q. C., and Brady, for Mr. Reeves, in support of the conditional order : The fact that the weir was found injurious to navigation in 1864 is no proof that it is so now, as circumstances may have altered in the meantime. In Moore-Smyth v. The Duke of DevonÂÂshire (1) it was decided that a former order of the Fishery ComÂÂmissioners does not preclude them from holding a second inquiry„ This case is on all fours with Moore-Smyth's Case (1), except for the one circumstance, that a special case was stated by the CommisÂÂsioners in the present instance. [O'BRIEN, J.: That may make a great difference. The 26 &amp...