KDK 63 1860 R93 \2: COR i. \ \RY KDK63 1860.R9r™"'''-'''"^ ''" fflmiimmiSli™S "''"'""'" 'aw fudge 3 1924 017 183 322 EULES AND OEDEES THE COMMON LAW JUDGES, RESERVED CASES. 18b ^tttfjorits. RULES AND ORDEKS COMMON LAW JUDGES, RESERVED OASES, 1860-64. DUBLIN : HODGES, SMITH AND CO., 104, GRAFTON STREET, BOOKSELLERS TO THE HON. SOCIETV OP KING's INNS. 1865. Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017183322 EXILES AND OEDEES COMMON LAW JUDGES. EESERVED cASES. "^ 1860-64. Wednesday, Mat/ 3Qth, 1860. Resolved, — That .the Senior Judge on the North-East Circuit «hall take the North-east cir Crown business at Carrickferarns, and also the Civil Bill Appeals, ""''■ -A^nge- and his share of the Eecords in Carriokfergus, and also in the county iiess for Car- rickfergns. of Antrim. The Junior Judge on the Circuit shall take the Crown business of the county Antrim, and his share of the records in both. That the Crown business of Carriokfergus shall be tried first by the Senior Judge : next, the Civil Bill Appeals, and lastly his share of the Eecords. That the Crown business of the county Antrim shall be tried first by. the Junior Judge, and next his share of the Records, Coniiaught EesolVED, — Circuit. Arrangement That a similar arrangement be acted on in the county, and of business, /. z-i i Galway county county of the town of Galway. and city. CASE RESEEVED BY ME. JUSTICE O'BEIEN. Saturday, 21st January, 1861. Present — All the Judges, except : Keogh, Justice, Green, Baeon. In re Patrick and William Tobin. Malicious The Claimants applied for .£500 to be presented for a malicious burning, rro- '■ ceedings under burninff of a mill, and they had duly served the several notices the 6 & 7 Wm. J J IV. c. 116, .ind required by the 6 & 7 Wm. IV. chap. 116, sec. 135 (Grand Jury see. 135 & 137. . ,s Making infor- "^^V- mation under seo. 137 IS a ipjjg notices stated " that the person or persons by whom such condition pre- - '■ '^ ■' cedent. " injury was done is or are unknown to us." They also, within three days from the commission of the offence, made information before a Justice of the Peace ; but did not state therein, as required by sec. 137, " that such person or persons were unknown to them." The Judge below considered that the making the examination or information under sec. 137, was a condition precedent, and that the objection to the information in question was fatal to the presentment, but he reserved the point. The question was argued before the Judges to-day, by Mr. William Eyan, of Counsel for the Claimants. The Chief Baron, Baron Hughes, and Judge Ball were of opinion that Seo. 137 was directory only; and that the making of the information or examination was not a condition precedent, and that the presentment ought to be fiated. ;5 Baron Fitzgerald 'in the first instance acquiesced in the above opinion, but expressed considerable doubt on the point. The Chief Justice, Chief Justice of Common Pleas, Christian, O'Brien, Hayes, and Fitzgerald, Justices, were of opinion that a compliance with sec. 137 was a condition precedent, and that the omission in the information of the Claimants was fatal to the claim. And it was resolved that a compliance with sec. 137 was a condition precedent to the right to compensation. Same Day CASE RESERVED BY MR. BARON HUGHES. PEESENTlltENT : To flag footways of Mail Coach Road passing through the town Piesentment . , for flagging 01 Omagh. footpaths on both sides of It was admitted below, that the presentment was for flagging '" "* ' the footpaths on both sides of the Main-street of Omagh. Sections 50, 51 and 52 of Grand Jury Act considered. The 51st section of the 6 & 7 Wm. 4, c. 116, provides, "that " it shall and may be lawful for the Grand Jury to present any " footpath to be made or repaired along the side of any road for " which they have authority to make presentment ;" and it was argued at the Assizes, by Brooke, Q.C., Counsel for the ratepayers, that the sections referred to did not apply to the main street of a town, and that it did not authorize the Grand Jury in presenting for footpaths on both sides of the road, but at most only on one side. \ Question : Was the Grand Jury authorized to make the present- ment ? Held unanimously in the affirmative. February XZth, 1861. Present ; Chief Justice, Chief Justice Monahan, Chief Baron, Christian, Justice, O'Brien, Justice, Fitzgerald, Justice, Deast, Baron. Question : As to the right of more than one Attorney to act for Only one attorney can act for the same party in the same party in a proceeding in the Ciril Bill Courts considered. a Civil Bill Court. Resolved unanimously that no such right existed. Saturday, April 26th, 1861. Present : Chief Justice, Chief Justice Monahan, Chief Baron, Ball, Justice, Keogh, Justice, Christian, Justice, O'Brien, Justice, Hates, Justice, Fitzgerald, Baron, Hughes, Baron, Fitzgerald, Justice, Deast, Baeon. The Memorial of the Incorporated Society of Attomies and Solicitors of Ireland praying^that the Judges would make a general order, prohibiting any persons who had not been admitted Attornies, from acting as the Town Agents of Country Attornies, was talsen into consideration, when it was resolved that the Judges could not comply with the prayer of the Memorial. MICHAELMAS TERM, 1861. Present : Chief Justice, Chief Justice Monahan, Chief Baeon, Ball, Justice, Keogh, Justice, Christian, Justice, Resolved, — O'Brien, Justice, Hayes, Justice, Fitzgerald, Baron, Hughes, Baron, Fitzgerald, Justice, Deasy, Baeon. That all bye-laws under the Drainage Acts be, for the future, Drainage Act transmitted to the Junior Judge for the time being. the junior Judge. January 18fA, 1862. MEETING OF THE JUDGES. Present : Chief Justice, O'Brien, Justice, Chief Justice Monahan, Hayes, Justice, Chief Baeon, Fitzgerald, Baron, Ball, Justice, Hughes, Baeon, Keogh, Justice, Fitzgerald, Justice, Cheistian, Justice, Deast, Baron. GENERAL ORDER. CONSOLIDATED NISI PRIUS COURT. The following General Order was agreed to : — That a certificate of counsel shall not be required, in order to Certificate of enable plaintiffs to have cases coming within the terms of the 237th required to Section of the Common Law Procedure Act, 1853, tried in the ^^7% "^^l' ' ' tried at the Consolidated Nisi Prius Court for the future, and that, in addition Consolidated Nisi Priua. to the cases specified in that section, all cases may be tried in that Court which shall be ordered to be tried there, by any of the three superior Courts of Common Law, or by any Judge of any of such Courts. Provided, however, that nothing contained in this Order shall be deemed to interfere with the discretion of the Judge sitting in that Court, to postpone the trial of any case to the after sittings, on his being satisfied that it cannot be conveniently tried in the Consoli- dated Nisi Prius Court. Certificate of county Sur- veyor neces- snry for pay meat to con- tractor. CASE RESERVED BY THE CHIEF BARON. Same Day. The Judges then proceeded to consider a case reserved by the Chief Baron, as to the necessity of the County Surveyor's certifi- cate to entitle a contractor to pa3rment ; and it was resolved unani- mously that such certificate was necessary to entitle the contractor to payment. CASE RESERVED BY JUSTICE CHRISTIAN. Same Day. Right of Grand The Judges then proceeded to consider a case reserved by Mr. Jury to have ^ ■, r^ -, ^ ■ ■ service of no- JUSTICE CHRISTIAN, as to the power of the Grand Jury to inquire tices proved be- . ^ ^, • j? i.- j? t i.- j fore them. i°*° ^he services oi notices ot applications lor compensation for malicious injuries at Presentment Sessions, when, after discus- sion, it appeared that the Chief Justice, Chief Justice Monahan, THE Chief Baron, Mr. Justice Ball, Mr. Justice Christian, Mr. Justice O'Brien, Mr. Justice Hates, were of opinion that the deci- sion of the Presentment Sessions, as to the service of notices, was not conclusive on the Grand Jury. Mr. Justice REoan, Baron Fitzgerald, Mr. Justice Fitzgerald and Baron Deast, were of a contrary opinion. CASE RESERVED BY FITZGERALD, BARON. At the last Spring Assizes for the County of Leitrim, four Pre- Presentment T-- 1 1/.11. for malicioua sentments for Damages for Malicious Injuries, under the 6th & injuries. 7th Wm. IV. chap, 116, sec. 136, were brought before me, in each cannot prMent of which the Grand Jury had presented a larger sum for damage l^'^^^jj^atm than had been claimed by the applicant at Sessions. tioned m ap- •' ■"• plication to Petty Sessions. The following return, obtained by me from the Secretary of the Grand Jury, Shews — the particulars of these presentments, as well as the ground on which the Grand Jury considered themselves warranted in each case in granting the larger sum : — 3& B§ TSO m m o o o o o o to m ISJ 1—1 CO m I 04 05 1—1 El & 2 OS lit 'Co o o 60 O O O &4 S DQ s ^ o a 63 S goo dm ;?; ^ I declined to fiat any of the foregoing Presentments, but, it having been represented to me that similar Presentments had been repeatedly fiated, and the following instances of such Presentments having been produced, • Claim on SoliediUe. Granted, £ s. d. £ a. d. Chief Justice Lefroy 1851 5 10 Justice Torrens 18S3 10 20 Judge Jackson 1856 11 15 Judge Perrin 1857 16 22 Baron Richards 1858 3 13 4 5 Judge Keogh 1856 18 18 20 and it having been stated to me by one of the Grand Jurors, as well as by an Attorney in Court, that the Presentment above stated to have been fiated by Mr. Justice Jackson, 1856, was so fiated after argument on the point in question as to costs, I respited the Presentments for the purpose of obtaining the opinion of the Judges, as to whether the said fonr Presentments, or any of them, ought to be fiated for the amounts granted. P. A. Fitzgerald. March, 1862. Upon the above Presentments, reserved by Baeon Fitzgerald, Deast Baron, Fitzgerald Justice, Hughes Baron, Fitzgerald Baron, Hayes Justice, O'Brien Justice, Christian, Justice, Eeogh Justice, Ball Justice, Monahan Chief Justice, were of opinion that the Grand Jury cannot, in any case, give a larger sum than that mentioned in the Application to the Presentment Sessions. PiGOT, Chief Baron, was of opinion that the presentment Sessions might give a larger sum than that claimed, but that the Grand Jury cannot increase the sum recommended by the Sessions. Lefrot, Chief Justice, was of opinion that the Grand Jviry might give a larger amount than that claimed. 10 CASES RESERVED BY JUSTICE HAYES. Allen v. O'Neil. Costs of CivU This was an appeal from a Civil Bill 'decree made by the Chairman of Sessions of the County of Armagh. It came before me at the last Assizes for that county. The decree was for a sum of £2 l^s. being the value of certain articles the property of the plaintiff which had been unlawfully kept and detained by the defendant and converted to his own use, and of course the costs below followed the above decree. On an inves- tigation of the matter upon appeal, I came to the conclusion that the plaintiff was entitled to a decree for no greater sum than £2 2s. as the value of the goods converted by the defendant, and I ordered that the decree should be reduced to that sum. The question then arose whether the plaintiff was entitled to costs. On one side it was insisted that, under the 14 & 15 Vic. o. 57, s. 127, I was bound to give costs; while, on the other side, it was contended that the defendant having succeeded in reducing the amount of the decree, had obtained relief upon the appeal, and thus performed the condition of the recognizance into which he had entered. It was intimated to me by the Bar, that there had been some difference in the course pursued : some Judges holding them- selves bound to give the plaintiff his costs, unless the decree should be altered to a dismiss, while other Judges conceived they bad a discretion as to costs in a case circumstanced as the present. Birch v. Wright. In this case the same learned Chairman of Sessions gave a decree for £40, as the amount of money lent by the plaintiff to the defen- dant. On hearing of the appeal, I reduced the amount of the decree from ;£40 to £36. A similar question to that which arose in the 11 former case having been here presented to me, I thought it right, for the better ascertainment of the law, and to insure uniformity of decision, that the question in both cases should be reserved. I therefore withheld the delivery of the decrees. At the next meeting of the Judges, on the 15th April instant, I shall take the liberty of asking your Lordships to consider the point, and to say whether a party defendant, appealing from a " Civil Bill Decree," is bound to pay costs of appeal, although he may succeed in obtaining a reduction in the amount of decree. See 14 & 15 Vic. 0. 57, s. Ill & 127, and see Copinger on Civil Bills, pp. 167, 168. E. Hates. 9th April, 1862. Upon the case reserved by Judge Hates, Deast Baron, Fitz- gerald Justice, Hughes Baron, O'Brien Justice, Christian Justice, Kj:ogh Justice, Ball Justice, Pigot Chief Baron, MoNAHAN Chief Justice, C. P., Lefrot Chief Justice, were of opinion that the Judge had no discretion as to costs in cases similar to those stated by Judge Hates. Fitzgerald, Baron, was of opinion that the case of an appeal partially successful was unprovided for by the Act, and that con- sequently the Judge had a discretion as to costs in such a case. Hates, Justice, was of opinion that in cases of appeals the Judge had a discretion as to costs. Eesolved, — That the Judge had no discretion as to costs in cases similar to those reserved by Justice Hates. 12 CASE EESEEVED BY THE CHIEF BARON. AlEEN V. KeATINCJ. In this case I affirmed the decree, which was for a sum not exceed- ing £5. Counsel's fee in I determined, that if I had jurisdiction to disallow in the costs peals. tlie fee for Counsel who appeared for the respondent (the plaintiff below) I ought to disallow that fee. Having learned that other Judges conceived they had no jurisdiction to refuse to allow Coun- sel's fee in the costs in any appeal, and having myself decided differently on a former occasion,* I reserved, for the opinion of the Judges, the question, whether I had jurisdiction to withhold it. I now submit that question for the consideration of the Judges. Section 14 «& 15 Vic. c. 57, s. Ill, 127, 152, 155, and Sche- dule D. The following is my judgment in the former case, referred to in the case of AIKEN, appellant ; KEATING, respondent. I think it was delivered in. 1857. D. R. PiGOT. ILimericfe assijes. * Mahony v. Etan. The Civil BUI Act, 14 & 15 Vic. c. 57, s. Ill, enacts, that the decree of the Assistant-Barrister shall be with such costs as are provided by this Act. 13 Those costs are specified in Schedule D, under the head, Counsel's fees ; in that Schedule 10s. 6d. is prescribed as the plaintiff's Counsel's fee, in each case of ordinary Civil Bill, when the sum decreed shall exceed £5, and shall not exceed £20 ; and £1 Is. is provided as the Counsel's fee, in all cases wheh the sum decreed shall exceed £20. For the defendant's Counsel the like fees are allowed, on sum sued for. It is provided by the Schedule D, that in a defended case no fee to Counsel shall be charged as between party and party if the Assistant-Barrister shall certify that it was not a fit case for Counsel, and that in an undefended case no such fee shall be charged, as between party and party, unless the Assistant-Barrister shall certify that it was a fit case for Counsel; a corresponding pro- vision is made in reference to dismisses. Section 127 provides, that the Judge of Assize shall hear the cause upon appeal, and shall issue a decree, and execution thereon, " in like manner as decrees and executions are by the Assistant- " Barrister to be awarded and issued upon the hearing of Civil " Bills under this Act, and with like powers relating to same, and " WITH LIKE COSTS." • If the Act stopped there, it would, I apprehend, be perfectly clear, that the Judge would be bound to observe precisely the same rules respecting costs as the Schedule D prescribes for the Assistant- Barrister — that is, he could award no costs of Counsel where the sum decreed should not exceed £5 ; and he would have the discre- tion, and of course in a case appearing to him to be a fit one, he would be bound to exercise that discretion, of withholding costs of Counsel's fee, when he should be of opinion that Counsel ought n'ot to have been employed. The Schedule D, however, after prescribing the fees to be paid upon various items of service to the Clerk of the Peace, and to the attorney in the Assistant-Barrister's Court, contains a portion headed " Fees on Appeals,'' comprising three items, — the first, "To 14 " the Clerk of the Peace upon the hearing of each Appeal at the Assizes Is." i the second, " To Attomies for the parties respectively " the same fees as allowed on Civil BUls in the Barrister's Court ;" and the third, "To Counsel, £1 Is." The 152nd section enacts that the fees specified in Schedule D shall be established " as the lawful fees and emoluments for the discharge of the several duties therein specified by the respective officers therein mentioned," and no other fees or payments shall be recoverable for " the discharge of such duties ;" and this section imposes a penalty of £1Q upon any " Clerk of the Peace or his " Deputy, Attorney, Sheriff, BaUiff or Process Officer, who shall " receive any greater fee,' gratuity, emolument, or consideration " for any service specified in the Schedule." The 152nd section plainly has no reference to the Counsel's fee — the Counsel is, not an officer, and he is not one of those upon whom the penalty is imposed. The 153rd section provides that the several fees mentioned and set forth in the Schedule D " shall be the fees chargeable against any party, plaintiff or defendant, as between party and party, upon any Civil Bill brought under the provisions of this Act," and no other fee or charge shall be made in any " hill of costs between party and party," or in " any decree or dismiss, other than those set forth *' in said schedule ;" upon this section, and the portion of the Schedule relating to appeals, the question arises, whether the Judge upon an appeal, where the sum decreed does not exceed £5, is entitled (or rather is bound) to exclude Counsel's fee from the costs allowed to the plaintiff, between party and party, in Uke manner as the Assistant-Barrister, who plainly would not be entitled, in such a case, to include the Counsel's fee in the successful plaintiff's costs. In favour of the plaintiff's claim to be allowed Counsel's fee on an appeal, however small may be the sum decreed, it may be urged that the words of the 153rd section are imperative, where it directs that the several fees specified in the Schedule shall he the fees chargeable against any party; and that as £] Is. is a fee 15 specified in the Schedule as Counsel's fee upon an appeal, that fee in every case shall be allowed. The validity of this argument depends upon the meaning of the words, " shall be the fees chargeable." Do these words mean that the fees in the Schedule shall be charged in every case in which costs are awarded, or do they only mean, that those shall, as to amount, be the fees chargeable for the service specified in the Schedule, wherever, for such service, any fee shall be chargeable at all? It appears to me that the latter is the true meaning of the statute. If the statute be construed as enacting that in every case in which costs are awarded every fee mentioned in the Schedule shall be allowed, it will foUow, that on every appeal eveny fee which was chargeable before the Assistant-Barrister must be also chargeable before the Judge; for the Schedule under the head " Fees in Appeals" states that to attomies " there shall be allowed " the same fees as allowed " on Civil Bills in the Barrister's Court," and the attorney would be entitled (or the client for the attorney) to a fee on draw- ing or requiring Civil BiU, a service not required for an appeal, and a service which, being required on the original hearing before the Assistant-Barrister, must be paid for by the appellant, under the 127 section, as a prehminary to the appeal ; the same observation applies to the fee for drawing and reqidring the a£Sdavit to obtain a decree pro confesso, and filing the same ; a service which can only be performed in the original proceeding before the Assistant-Barris- ter, and the costs of which must be paid on entering the appeal. A construction so absurd can only be avoided by interpreting the words of the 152nd section, and of the Schedule, as indicating nothing more than that the sums specified in the Schedule shall be the amount of the fees payable for the services to which, in the Sche- dule, they are respectively annexed, wherever these services can be property charged for under the Act ; and if that be so, then the question, whether Counsel's fee can on appeal be properly chargeable where the sum decreed does not exceed £5, must be determined by the 111th & 127th sections; the former of which, by reference to the Schedule, precludes the Assistant-Barrister from allowing Coun- 16 sel's fee in any such case, and the latter of which directs, that the Judge shall award and issue his decree " with the like costs'' as the Assistant-Barrister's. By those sections, and the schedule, it appears to me that the Judge is limited to the giving, in costs, fees for such services rendered in reference to the appeal before him, as corres- pond with the services for which fpes are chargeable before the Assistant-Barrister, and for no other ; save that the schedule allows a fee of Is. to the Clerk of the Peace upon the hearing of each appeal at the Assizes, a service for which no corresponding fee is allowed to the Clerk of the Peace in reference to the original proceeding. It follows that Counsel's fee is not chargeable upon appeals in cases in which it would not be chargeable in the original proceeding before the Assistant-Barrister, and that the only effect of the introduction of the fee in the portion of the schedule relating to appeals, is to enlarge the fee of 10s. 6d. to £1 Is, where the sum decreed exceeds £5 and does not exceed £20. This view of the Act not only is that which best suits the language employed, but also is that which is best calculated to effect the object of the legislature, apparent in the express provisions of the statute : the withholding of Counsel's fee as part of the Plaintiff's costs when the sum decreed, and of Defendant's costs when the sum sued for does not exceed £5, was plainly intended to deter from resorting to the more expensive professional advice, when the subject of controversy was so small ; or at least to make' the party obtaining such advice pay for it out of his own funds, and to exempt the unsuccessful party from the expense of it. The same reason applies still more strongly to an Appeal than to the original hearing, because the fee, if payable at all, must be double the amount payable in the Assistant-Barrister's Court, when the amount decreed or sued for does not exceed £20. In the present case, the decree of the Assistant-Barrister was for £2, the costs, if Counsel's fee be chargeable, must be £\ 8s., very nearly three-fourths of the amount in controversy. If the decree was affirmed on Appeal, there might not perhaps be so much hardship in visiting so large a sum in costs, as the penalty on the defendant for putting himself and his adversary, for so small a sum, to the expense and annoyance of an unsuccessful appeal, in a case in which he might well have 17 submitted to the decision of the Assistant-Barrister. But if the decision had been the other way, and the decree had been reversed, I must have allowed precisely the same amount of costs against the plaintiff, as the penalty for sustaining the decree of the Assistant- Barrister for that small sum in his favor. The determination that Coimsel's fee shall be allowed, where the amount in controversy does not exceed £5, must be founded on a construction of the statute which, making it imperative on the Judge to allow that fee, whatever be the amount in dispute, would withhold from him the discretion which the third section gives the Assistant-Barrister to refuse Counsel's fee altogether, if he thinks the case one in which Counsel ought not to be employed. The result of so holding may certainly deter some from appealing where the risk of costs exposes the appellant, if unsuccessful, to so large a penalty ; but, on the other hand, such a construction will load the unsuccessful party* with an amount of costs very dispro- portionate to the sum recovered't and must withhold from the Judge a discretion in refusing costs of Counsel, where he thinks that Counsel ought not to be employed, in precisely the same state of facts (save that they appear upon the hearing of an appeal) in which that discretion is vested in the Assistant-Barrister. There seems to be no ground in reason for the distinction, and it appears to be at variance with the express terms of the 127th section, by which the Judge is empowered and required to he^r the case, and to issue a decree and execution thereon, in like manner as decrees and executions are by the said Assistant-Barrister to be awarded and issued upon "the hearing of Civil Bills under this Act, and with Uke powers relating to the same, and with the like costs." For these reasons, I hold not only that I have jurisdiction to refuse in the present case to allow the fee of Counsel, but that the case is one in which I ought to refuse it. D. R. PiGOT. * Even where he has obtained the decree appealed from, t Or decree. 18 The Judges proceeded to consider the case reserved by the Chief Baron, when it appeared that Deast Baron, Hughes Baeon, Fitzgerald Baron, O'Brien Justice, Christian Justice, Monahan Chief Justice, C. P., Lefrot Chief Justice, were of opinion that the Judge had no jurisdiction in any appeal to refuse to allow the fee to Counsel. Fitzgerald Justice, Keogh Justice, Ball Justice, Pigot Chibt Baron, were of opinion that in the case stated by the Chief Baron the Judge had jurisdiction to refuse to allow Counsel's fee. Hates Justice, was of opinion that the Judge had a discretion as to giving or withholding costs, but that he had no control over the amount of the costs, if he gave them. 19 CASE EESERVED BY FITZGERALD, BARON. At the Summer Assizes for the year 1861, for the City and County Jurisdiction to of Londonderry, a presentment (No. 30, Barony of Kinnaght) was trfai of a tra- made for the widening of a road, and a traverse for damages was ™''^°' then entered by James Kane, the trial of which was respited till the then next assizes. At the Spring Assizes for 1862 the trial of the traverse of this presentment (No. 523 in Grand Jury "Warrant, Spring, 1862) was further respited by the Judge, without prejudice to any question which might be raised at the then next assizes as to the jurisdiction of the Judge to try it. At the Summer Assizes of 1862 the traverse was tried before me, and the Jury found a verdict for the traverse, £12 10s. damages. I fiated a presentment for that sum conditionally, the levy to be suspended till the opinion of the Judges could be obtained as to the jurisdiction to try it. The 134th section of the 6 & 7 "Wm. IV. chapter 116, enacts " That it shaU be lawful for any occupier or owner of the ground " through which any new road is to be made, or into which any " old road is to be widened, to traverse the presentment for the " same for damages at such assizes as aforesaid (that is, the assizes " at which the presentment is made), having given like notice to " the Chairman of the Presentment Sessions and to the Secretary " of the Grand Jury, previous to the commencement of such assizes, " of the amount of damages intended to be claimed; which traverse " shall be tried then or at the ensuing assizes, upon the entry in the " Crown Book of the presentment, and traverse without making " up any record." The single question reserved for the consideration of the Judges is — whether there was jurisdiction to try the traverse at any assizes save the assizes at which the presentment was made, or at the assizes following ? 20 If the Judges shall be of opinion that there was jurisdiction, the fiat is to stand ; if otherwise, the presentment for damages is to be nUled. F. A. Fitzgerald. August, 1862. Mr. Justice Hayes was of opinion that the Judge had jurisdiction to postpone the trial of the presentment, when the exigency of jus- tice required it. The other Judges present, viz : — Chief Jttstice Monahaij, Fitzgbrau), Bakon, Chief Bakon, Hitghbs, Baron, Ball, Justice, Fitzgekaib, Justice, Christian, Justice, Dbast, Baron, Hayes, Justice, were of opinion that the Judge had no jurisdiction to try the tra- verse at any assizes save the assizes at which the presentment was made, or at the assizes following. CASE KESERVED BY THE LORD CHIEF JUSTICE. GooDBODT V. The Midland Great Western Railway op Ireland Company. SUMMER ASSIZES, 1862. Traverse for The traverse in this case came on to be heard before the Lord R™wav Com- '-'^lEF JUSTICE and Jury, in the Crown Court, at the last Summer pany. Assizes for the King's County. The traverser claimed by his notice of traverse " compensation for " the purchase of his interest in the lands and premises mentioned in ," the certificate and award, and for severance, and for the con- " sequential injury thereto, and to the adjoining lands and premises " in his possession, the sum of £875 10s. 21 Several witnesses were examined for the traverser, as well as for the railway company. It appeared in evidence that the compensation sought by the traverser was for injury to a handsome villa residence, situate close to the town of Clara, in the King's County, caused by the construc- tion of the Clara and Streamstown Railway. It was proved tljiat the railway was constructed about 200 yards distant from the front of the house, that between the house and railway was a pleasure ground, and close to the railway ran a garden-wall, of the average height of five feet, by the side of which ran a screen of forest trees, that persons standing in the drawing-room windows of the mansion were prevented from seeing a portion of the fields beyond the rail- way, which they otherwise would have seen but for the embank- ment ; but it was also proved that the wall and trees partially obscured the view, but not to such an extent as the railway embankment, which hid about four acres of grass land from view of the windows. That beyond these four acres the land rose to an eminence, and was covered^ by plantations, the plantation being the property of another person, which could all be seen from the drawing-room windows. Evidence was also given for the traverser by McNevin, the land- scape gardener, and other witnesses, that in their opinion, the letting value of the residence was considerably depreciated by reason of the loss of the view. On the traverser it was contended that he was entitled to com- pensation for the aforesaid species of injury, his house and property being thereby injuriously afiected, and deteriorated in value. On the part of the railway company it was contended, that the Acts of Parliament, to which they referred, did not contemplate satisfaction for such an alleged species of injury, and that the jury had no power to award compensation for any injury which was not in itself actionable at law, and that no action would lie at common law for damages for the species of injury above referred to. 22 The 6tli section of the 8 Vic. o. 20, and the 9th of the 14 & 15 Vic. 0. 70 (the Irish Railway Clauses Act), were referred to, and relied on by both sides. The LoED Chiif Justice sent the evidence to the jury, telling them to find separately as to the question of deterioration of value to the villa residence ; and accordingly the jury found for the traverser, £102 14s. 9d , the value of the land taken, £102 for severance, and the sum of £228 as damages for deterioration in the value as a viUa residence. The following is a copy of the entry of the finding of the jury in the Crown Book kept by the Clerk of the Crown for the King's County. King's County Summer Assizes, 1862. Traverse of Lsms Frederick Goodbody: — " The jury found for the purchase of land ... £102 14 9 " For damages (including for deterioration in the setting value) 330 And the Court awarded for costs .. ... 10 £442 14 9 On the trial of this traverse a question arose as to whether deterioration in the value of the house and place, as a villa resi- dence, was to be an element for the jury in estimating the damage. Chief Justice, with consent of the parties, said he would take the evidence, and leave it to the jury to assess separate " damages " for such deterioration ; the evidence was accordingly given, and " the case went to the jury, who found £102 14s. 9d., the value " of the land actually taken by the company for the embankment, " as to which there was no question ; £330, which included £228 as " deterioration in the value as a villa residence, and as to which " the Chief Justice reserved the question for consideration, whether 23 " the sum of £228 was to be allowed or not; the remaining J102 " was for severance." The question therefore is : — Is the traverser entitled to recover the sum of ;£228, damages for loss of view, evidence being given that the letting value of the premises was deteriorated by reason of the works of the railway company ? N.B. — ^The Court is referred to the case of Chamberlain against the West of London and Crystal Palace Railway Company, 31 Law Jurist, 201 Queen's Bench, decided May 3rd, 1862, in which all the authorities are collected. Crompton, Justice, says — " The words " lands taken or injuriously affected, the latter words were meant " to apply to all kinds of injury, that is, to compensation for such " damages as would sustain an action." The Judges then proceeded to consider the case so reserved by the Chief Justice. J. T. Ball, Q.C., and Palles were heard for the traverser, and Battersby, Q.C., and J. A. Curran for the company. At the conclusion of the argument the Chief Baron and O'Brien, Justice, were of opinion that the traverser was entitled to compen- sation for the deterioration in value caused by the loss of view. All the other Judges were of opinion that he was not entitled to recover such compensation. 24 THE LANDLORD AND TENANT LAW AMENDMENT ACT (IRELAND) 1860. (23 & 24 Vic. c. 154, s. 75.) GENERAL ORDERS. 29th May, 1863. Proceedings FiRST. When the plaintiff in ejectment proceeds under the 75th Landlord and section of the Act " to Consolidate and Amend the Law of Landlord Tenant Aot ^^^ Tenant in Ireland," the notice of the plaintiff's application to the Court, that the defendant be required to enter into security by recognizance, as therein provided, may be in the form at foot of these orders, or to the like effect. Second. Such notice shall be given for a day certain in town, and shall be served six clear days at least before the day specified. Third. Copies of the affidavits to sustain such application (save the affidavit of service of the summons and notice) shall be served with the summons and notice, but additional and answering affidavits may be used on the motion by leave of the Court or Judge. Fourth. The application for such security shall be moved on the day named in the notice of motion, and unless so moved or specially saved, it shall stand discharged. Chief Justice, Hayes, Justice, Chief Justice MoNAHijf, Fitzgbraid, Baron, Baizl, Justice, Hughes, Babon, Kboqh, Justice, Fitzgerald, Justice, Christian, Justice, Deasy, Baron. O'Brien, Justice, 25 FORM OF NOTICE. Take notiofe, that on the day of 18 an application on behalf of the plaintiff will be made to the Court of at the Four Courts, Dublin, pursuant to the provisions of the 75th section of the Landlord and Tenant Amend- ment Act (Ireland), 1860, that the defendant shall, within six days from the date of such application, enter into a recognizance by him- self and two sufficient sureties, in a reasonable sum, conditioned to pay the cost, damages, and mesne profits, which shall be recovered by the plaintiff in this action, which motion will be grounded on the affidavits of which are now delivered to you ; and you are hereby informed that in the event of such an order being made, if the defendant shall not comply therewith, by entering into security as required, the plaintiff wUl be at liberty to enter up judgment, notwithstanding any defence filed by the defendant, for the recovery of the possession of the premises, and his costs of this suit. Dated the day of 18 26 CASE EESERVED BY JUSTICE BALL. 8th June, 1863. Wilson v. Caeeickfergus and Laene Railway Company. The following statement of facts was agreed on by the parties for the information of the Judges, in reference to the matter of law, which I beg to submit for their consideration. Traverse for In this case the traverser, James Wilson, caused a traverse for against a Rail- damages to be entered, pursuant to the statute in that behalf, way Company. ggg]^jjjg £1029 16s. 3d. in respect of the alleged value of his interest in a certain piece of land taken by the company for the making of the railroad, comprising 3r. 33^p. statute measure, situate in the middle division of Carrickfergus, and Jill 5s. for damages arising from the severance of said piece of land from the adjoining lands of the said James Wilson, held therewith. The arbitrator, William P. Prendergast, Esq., by his final award, dated the 20th day of March, 1862, had awarded to the claimant a sum of £100 for the value of his interest in said piece of land, and £50 for damage arising from severance, and also certain accommodation works in said award mentioned. The case came on for trial before the Right Honorable Mr. Justice Ball and a common jury of the county of the town of Carrick- fergus, at the last Spring Assizes for said county, held on the 3rd day of March last. It appeared that the claimant, at the time of the passing of the Company's Act, was in possession of the piece of land in question, which was held by him by virtue of a lease dated the 1st of January, 1834, whereby certain lands and premises, comprising 19a. 3e. 15p. 27 statute measure, including the piece of land in question, were demised by lease for lives renewable for ever, subject to the yearly rent of ^46 3s. Id. The said lease contained exceptions of all mines, minerals, right of way, water, watercourses, drains and sewers, and all game and royalties whatsoever, with full liberty to hunt, shoot, and take all such game at all proper seasons ; and also several covenants, including a covenant on the part of the lessee, his heirs and assigns, to keep the demised premises in repair. The said lease is referred to, as if incorporated with this state- ment. It was also proved that an order had been made on the 10th day of July, 1858, by the Court for the Sale of Incumbered Estates in Ireland, in the matter of the estate of WUliam Burleigh, surviving trustee of the will of Robert Hanley, and of James Wilson, or either of them, owners, etc parte John Boyd Gilmore,, petitioner, whereby it was ordered that the said lease should be converted into a fee- farm grant, on the terms, amongst others, that the following clauses and covenants, which are contained in the said lease of lives renew- able for ever, should be deemed and taken to be still subsisting between the owner of said lands and the owner of rent when the same should be converted as aforesaid, and should be expressed in any conveyance to be executed by the Commissioners of said lands ; that is to say, clauses reserving all mines, minerals, right of way and others, waters, watercourses, drains, and sewers, &o., and covenant to keep the walls, drains, fences, ditches, &o., in repair. The said order is referred to as incorporated in this statement. A map was proved (to which reference is also hereby made), shewing the contents of said farm, and the site of the piece of land taken by the company. It was further proved, that the claimant had made bricks for sale on a portion of the lands comprised in said lease, and that 750,000 was the maximum he had made in any one year. 28 ■ The portion of the brick works where said bricks were made is shewn on said map, and it was proved that the part of the ground where the bricks were made was situate at a lower level than the portion taken by the said railway ; that eight acres and upwards of land intervened between said works and said portion of land so taken ; that the farm rose from said brick works up to the place where the portion of land taken by the railway is situate ; that no bricks had ever been made on the said portion of land so taken, nor had said portion of land ever been used except for agricultural pur- poses ; but it was proved that the clay in the portion so taken, and in the intervening space of ground, was of equal quality for brick- making with the clay actually in use for that purpose. It further appeared that the said arbitrator had awarded to the Marquis of DownshLre, to whom the reversion expectant in said lease of lives renewable for ever belonged, the sum of £63, as com- pensation for his interest as reversioner in said piece of land taken by the said company, and by said a,ward the rent payable to him under said lease was directed to be reduced £2 5s. per annum. Mr. Fitzherbert Filgate, the agent of Lord Downshire, was called as a witness for the traverser, and proved that he, witness, was aware that the traverser had been making bricks on the farm ; that Lord Downshire had not interfered to prevent it, and that he (Lord Downshire) made no claim to the brick clay. The notes of the learned Judge are referred to (if necessary). An objection was handed in to the charge of the learned Judge, which objection appears on his notes. The Jury found : — £100 to James Wilson, as compensation for the land taken by the railroad, treating it as land used for agricultural purposes. £80 to same, as compensation for severance and other injury done to his land. 29 £562 10s., as the amount of compensation to James Wilson for the land so taken, regarding it as adapted to brickmaking purposes, subject to a deduction of £62 10s. for making a road, i. e. £500. The claimant insisted on being entitled to the full amount found by the jury, viz., £500 in addition to the sum for severance. The company contend that the claimant is only entitled to the smaller amount, that is, £100, treating it as land used for agricul- tural purposes, inasmuch as he had no legal rights to use it for making bricks for sale ; and further, that if it should be held that the jury were entitled to assess compensation to the claimant for the said piece of land as suitable for brickmaking purposes, then that the learned Judge should have told the jury to take into account the matter stated in the objection handed in by the company's counsel, and that in no case can the entire amount of £500 be given to the claimant. No question is reserved as to the amount found for severance and other consequential injury. M. Harrison, counsel for said railway company. T. R. Falkner, counsel for traverser. Upon the foregoing statement of facts, I beg to submit for the consideration of your Lordships the question, whether the claimant is entitled, in point of law, to compensation for the portion of his land taken for the railway, treating it, on the one hand, as adapted to brickmaking purposes, or, in the alternative, as used for agri- cultural purposes. I should mention, that in point of fact the fee-farm grant has not yet been executed by the claimant. N. Ball. 30 The case was argued by Joy, Q.C., and Falkner, for the traverser, and Harrison, Q.C., and Ferguson, Q.C., for the company. Mr. Jdstice Hatks and Mr. JasTiCE O'Brien, were of opinion that the traverser was entitled to recover the full amount found by the jury. The Chief Justice, Mr. Justice Ball, Mr. Justice Christian, Baron Fitzgerald, Baron Hughes, Baron Deast, were of opinion that the traverser was not entitled to recover compensation for his land, treating it as adapted to brickmaking purposes. Me. Justice Keogh and Justice Fitzgerald were not present. The question of having a new trial was then discussed. There were for it — Chief Justice Common Pleas, Justice O'Beien, Chief Baron, Justice Hates. Against — Chief Justice, Babon Fitzgeeaid, Justice Ball, Baeon Hughes, Justice Cheistian, Baeon Deasy. CASE RESERVED BY BARON FITZGERALD. 9th June, 1863. CITY AND COUNTY OF LONDONDERRY. An application for compensation for loss and damages sustained by a malicious injury, grounded on the following documents, was brought before Baeon Fitzgerald at the assizes for the city and 31 county of Londonderry, and he reserved for the consideration of the Judges the question, whether "Flax" came within the 135th section of the 6th & 7th Wm. IV. c. 116. I, Bernaed Devlin, of Tulnagee, do hereby certify, that on the ^"'"P^"^!;^'!"", night of Friday, the 19th, or early on the morning of Saturday, the injury to flax. 20th of September, 1862, from seven to nine stones of flax, my property, was maliciously set fire to and wholly destroyed, at Long- field, in the townland of Longfield, parish of Desertmartin, barony of LoughinshoUen ; and that I do not know by what number of persons, or by whom, by name and description, such injury was done, or any other particulars respecting such offender or offenders. And I propose that the sum of £6 6s., being the amount of damage which I have sustained by the aforesaid injury, and as compensation for the same, be levied off the county at large, or off such barony, parish, district, townland, or such denomination thereof as the Grand Jury shaU direct, and that presentment for such purpose may be made under and by virtue of the 135th section of the 116 c. of the 6 & 7 Wm. TV., being " An Act to Consolidate and Amend the Laws 6 & 7 Wm. IV relating to the Presentment of Public Money by Grand Juries in <=• ^1^> ^' l^^- Ireland." Signed, , Edward Devlin, Applicant. No. 167. BAKONY OF LOUGHINSHOLLEN. Malicious Injury.— The opinion of the bench in this case is, that the injury was malicious. Signed, R. Spotswood, Chairman. £5 5s. ordered to be levied off the barony of LoughinshoUen. R. P. D. , Foreman. Received 21st day of November, 1862. 32 McCausland, Q.C., was heard in favor of the presentment, and Irvine against it. There were in favor of the presentment — Chief Justice, CnKiSTiAif, Justice, Chief Justice, C. P. Fitzgeeaid, Baron, Chief Bakon, Huohes, Babon, Baxi,, Justice, Deast, Baeon. Against it — O'Beien, Justice, Hates, Justice. Mr. Justice Ball and Mr. Justice Christiak were of opinion that the case was within the term "haggard," in the 135th section 6 & 7 Wm. IV. c. 116, and upon that ground thought the pre- sentment valid. The other Judges, composing the majority, were of opinion that undressed " flax" came within the word " straw" in that section. 8th June, 1863. CASE RESERVED BY MR. JUSTICE HAYES. At the last Fermanagh Assizes, while engaged in fiating the present- ments, my attention was called by a member of the Grand Jury, to three numbers on the Schedule laid before me, the amount of which had been presented by the Grand Jury. They are as follows : BARONY OF GLENAWLEY. No. 18. 6 & 7 Wm. IV. c. 116, s. 32 : To NeUs Macken, for having repaired a bridge in the land of Laureagh, on the road from Enniskillen to Belturbet, by order of A. Loftus Tottenham and James Benison, Esq. Dated 22nd September, ] 862, £20. 33 No. 19. Same Act. To Nelis Macken, for having repaired a bridge in the land of Laul'eagli, on the road from Ennisldllen to Belturbet, by order of the Honorable A. Cole and Henry Echlin, Esq. Dated 25th September, 1862, £20. No. 20. ^AME Act. To Nelis Macken, for having repaired a bridge in the land of Laureagh, on the road from Enniskillen to Belturbet, by order of John Johnston and M. 0. Jones, Esqrs. Dated 25th September, 1862, £6 12s. 6d. It was insisted before me that these orders were illegal, and that the section referred to did not justify more than one order in respect of one damage. It was also mentioned that the orders did not, on the face of them, profess to be made at petty sessions. The original orders were produced ; they did not set forth at what petty sessions they had been made. The following is a copy of one of the orders, each of them being made for the sum of £20 : — " 6 & 7 Wm. IV. c. 116, s. 49, and 7 Wm. IV. c. 2, sec. 17. We " certify that we lately viewed a sudden breach in a bridge in the " Townland of Laureagh, on the road from Enniskillen to Belturbet, " in the county of Fermanagh, barony of Glenawley, and we " believe the repairs of same cannot be delayed until next assizes " without prejudice to the public. In pursuance of the above " statement, we authorize and appoint Nelis Macken, of Enniskillen, " to expend the sum of £20 in repairing same, to be done in con- " formity with the specification of the County Surveyor. The work " to be completed on or before the 6th of November, 1862. Granted " at petty sessions, held at on the " 22nd September, 1862. "A. LoFTUs Tottenham, L " James Bennison, L.S. S ) ■ [■ Justices." 34 It appeared also from the statement of the County Surveyor that all these numbers related to the same bridge ; that it sustained sudden and severe damage, which a sum of £20 would have been quite insufficient to repair ; that the sum presented, amounting to £46 12s. 6d., was necessary to effect the repair; that it was highly advisable that the repairs should be promptly executed, and that the money had been properly expended. I was informed by the Secretary of the Grand Jury that similar presentments had been fiated from time to time by several Judges, after their attention had b^en called to the circumstances ; among others, I was referred to Baron Pennefather's ruling at the Summer Assizes, 1857, and to that of Judge Perrin at the Spring Assizes, 1859. I myself entertained, and still entertain, considerable doubts as to the legality of the proceeding ; but in deference to the authorities cited, I reserved the matter for the consideration of your Lordships. 10th April, 1863. Upon the presentment reserved by Mr. Justice Hayes all the Judges present, except the Chief Baron, were of opinion that the presentment should be nUled. The Chief Baron stated that he had not considered the question. 35 January lltft, 1864. CIRCUIT AERANGEMENTS. Resolved, — That with a view to the disposing of the business of the county Arrangement of Cork before the business of the city of Cork is entered on at the fe the county . , 1 and city. 01 ensuing assizes, different days be appointed for opening the com- (,^^^_ mission in the county and city of Cork respectively, and the day for opening the commission for the county be prior to that for opening the commission for the city. Resolved, — That the Junior Judge shall take the Criminal business of the county of Cork, and that the Senior Judge shall take the Criminal business of the city of Cork. Resolved, — That in accordance with the application of the Bar, the Con- Connaught naught Circuit shall commence at Carriok. CASE RESERVED BY BARON FITZGERALD. At the last assizes for the county of Armagh there was tried Presentment ' for damages by before me a traverse, by Mr. Hugh M'Mullen, of an award made a railway by William Prendergast, Esq., under, the provisions of " the Rail- ''°™P''°y way Act (Ireland), 1851." 36 The award gave to Mr. M'Mullen £850, as damages in respect of houses and premises in Woodhouse-street, in the town of Portadown, injuriously affected by the works of the Ulster Railway Company. Mr. M'Mullen, whose interest in the property in question is a lease for lives perpetually renewable, and who is also the occupier, claimed £1842 4s. for damages as lessee and occupier. In support of the claim for compensation the provisions of the 14th section of the Ulster Railway Act, 1859, 22 and 23 Vic. (local and personal), the special Act under which the railway works were executed, were relied on, which enacts as follows: — " Provided always, that all owners, lessees, and occupiers of " property adjacent to the works authorized by this Act at Belfast "and Portadown respectively, which may be injuriously affected " by the construction of any of the said works respectively, may "claim compensation in respect of such injury, although such " property, or any other property connected therewith, may not " actually be taken ; and the amount of such compensation shall, in " case of difference between the company and any person who may '' be entitled thereto, be settled in the manner prescribed by the " Railway Act (Ireland), 1851 ; provided always, that no claim to " such compensation shall be made after six months from the " opening of the bridge at Belfast, or the bridge or tunnel at " Portadown respectively, by this Act authorized to be made. " Provided also, that the powers of the arbitrator shall not be " affected by the fact that such adjacent property may not appear " upon the plans submitted to him." The premises principally affected consisted of a house or shop, and a store at the rere of it. Both the house and the store at the rere were used as public-houses under one licence. The effect of the works by the railway company was to place the house and store on a sort of terrace, difficult of access ; and there can be no doubt that the trade of traverser was very seriously affected. 37 I considered that the proper measure of damages in this pro- ceeding -was the difference between the selling value of the traver- ser's interest in the property, having regard to its nature and capabilities at the time the work commenced, and its value at the date of the award. It was insisted, on the part of the traverser, that in addition to what I considered the proper measure of damages, he, as occupier, was entitled to compensation for the loss in his trade from the commencement of the works till the award. Evidence was offered on the part of the traverser of the profits made of his trade before the commencement of the railway works, and of the profits since, up to the time of the award. The reception of this evidence was objected to on the part of the railway company, so far as it was sought thereby to find a claim for additional damages, independent of the general damages to which the traverser was entitled as such lessee and occupier. I allowed the evidence to go to the jury, directing them to give separate findings for the damages according to what I considered the proper measure, and for the loss of trade. The jury found that the damages in the former view amounted to £871, and that £80 represented the loss of trade. I reserved for the opinion of the Judges, which I now respectfully request, the question, whether the traverser is entitled to any compen- sation for loss of trade, as insisted on ; if so, the verdict is to be entered for £951, if otherwise, for £871 only. The section of the " Railways Act (Ireland), 1851," under which the traverse was taken, is the 26th. F. A. Fitzgerald. October, 1863. 38 Dowse, Q.C., and Hamill, were heard for the claimant, and- Joy, Q.C., and Harrison, Q.C., for the company. Judge Christian, Baeon Fitzgerald, Baron Hughes, Baron Deast, were of opinion that the claimant was only entitled to recover the sum of £871. The Chief Justice, Chief Justice Mona^an, Chief Baron, Judge Ball, Judge Keogh, Judge O'Brien, Judge Hates, Judge Fitz- gerald, were of opinion that the claimant was entitled to recover £951. CASE RESEEVED BY BA.EON DEASY. 20th May, 1862. Apportioning a At the last Assizes of the county of Waterford the Grand Jury presentment "^ for a malicious presented a sum of ^50, as compensation to Mr. H6nry Sterne, iDiurv whcr© two counties ^'^^ t^^ lo^s of one rick of hay, which was maliciously set fire to wUWn onr ^^^ burned on the 13th of August last, on the lands of Strahan, mile of tlie parish of St. Mary, barony of Upper Third, county of "Waterford. any two or more counties. , ,. . , ■, ■, ^ ,^ ■, „, An apphcation was made to me, under the 140th sec. of the 6 & 7 Wm. IV. c. 116, to grant a certificate, apportioning that sum between the barony of TJppbr Third and the barony of Iffa and Ofia, in the county of Tipperary, upon the ground that the burning took place within one mile of the boundary of the counties of Waterford and Tipperary, and that the barony of Iffa and Offa was the barony of the county of Tipperary adjoining the barony of Upper Third, and was within one mile of the place where the burning took place. I had no means of ascertaining the circumstances under which the burning took place. I felt considerable difficulty as to how I should deal with the case, and with three other cases similarly circumstanced, in all of which the sum presented was under £100. I therefore submit to the Judges, asking their opinion — 39 First :— Whether, in all cases where the burning or malicious injury for which compensation is awarded at any assizes was committed on the verge, or within one mile of the boundary of any two or more counties, it is compulsory on, or discretionary with, the Judge of assizes, under the 140th section, to apportion the amount of such compensation among such neighbouring counties ? Second : — If it be discretionary with the Judge to direct such apportionment, by what circumstances or principles should he be guided in the exercise of that discre- tion ? Third: — In case the Judge! should direct an apportionment, what are the circumstances and principles by which he should be guided in fixing the proportions to be paid by said counties respectively ? K. Deast. The Judges were of opinion that the Judge was bound to make the apportionment, but that he had a discretion as to the amount to be apportioned, to be governed by the circumstances of each case. CASE KESERVED BY MR. JUSTICE O'BRIEN. 30th May, 1864. At the last Assizes for the County of Tipperary (North Riding) the Presentment Grand Jury presented a sum of £250 to A. H. Crawford, Esq., for increased his last half year's salary, as County Surveyor for said riding. CounL°Sur- veyor, under the 24 and 25 The' fiating of this presentment was opposed by Samuel Cooke, "^'c- ^- 63. Esq., a cesspayer, on the grounds hereinafter raentioned; and the 40 following facts appeared from the documents and affidavits before Mr. Crawford's salary, as sucli County Surveyor, had been ^300 a year for several years previous to the Spring Assizes of 1862, when, upon an application by him for an increase of salary, under 24th and 25th Vic. cap. 63, the Grand Jury passed the two follow- ing resolutions, which were produced from the Crown Office, viz. : — 1st. Proposed by Samuel M'Going ; seconded by J. E. Minnett, " that the salary of the County Surveyor be raised from J300 " yearly to £500, on the understanding that he undertakes aU " county works, including public buildings, and personally inspects " all roads." — Approved For self and fellow-jurors, John Trant, Foreman. July 30, 1862. 2nd. Proposed by Sir W. Osborne; seconded by Captain E. P. Lalor, " that having increased the salary of the County Surveyor " from £300 to £500 a-year, it is resolved that such County Sur- " veyor shall not engage in any private professional practice so long " as he continues to hold'such office; and such order having been " made by the Grand Jury now assembled, the payment of such " increase of salary to, said County Surveyor shall be subject to the " condition contained in said order, and may be withheld if such " condition shall not have been complied with." — Approved For self and fellow-jurors, John Trant, Foreman. These two resolutions were considered and approved of by the next Presentment Sessions held for said north riding at large, in January, 1863, and each was endorsed thus, viz. — Approved at road sessions for county at large, at Nenagh, 15th January, 1863. J. R. Minnett, Chairman. 41 At the Spring Assizes (1863) such increase of salary was approved of by the Grand Jury. It is stated in the affidavits of Mr. Cooke that such approval was subject to the conditions above mentioned, of Mr. Crawford not engaging in any professional practice. It is on the other hand stated in the affidavits of Mr. Crawford and Mr. Bolton, that at said Spring Assizes of 1863 the Grand Jury, in approving of said increase of salary, expressed their opinion that Mr. Crawford should be allowed'to retain his private professional practice, and that said Grand Jury also passed a verbal resolution to that effect ; but it does not appear, and is not alleged, that any such resolution or any order to that effect was signed by the foreman; or reduced to writing, or that there was any entry or notice thereof in the Grand Jury book or printed abstracts. I directed a search to be made by the Secretary of the Grand Jury and in the Crown Office for any such document or entry, and it appears that such search was made, but without effect. The sum of ^250 for a half-year's salary, at said increased rate, was presented to Mr. Crawford at the said Spring Assizes of 1863, and a like sum at the subsequent assizes, and both sums were ac- cordingly paid to him. At the last Spring Assizes, however, the passing of a similar presentment for his then last half-year's salary, at the increased rate, was opposed by Mr. Cooke before the Grand Jury, when they were engaged in their fiscal business, upon the, ground (amongst others) that Mr. Crawford had violated the condition upon which said increase of salary had been originally granted, and had sub- sequently thereto, both during said last half-year and previously, been engaged in private professional practice. The fact of Mr. Crawford having after his said increase of salary (and particularly during the half-year for which his salary was presented at last assizes) been, engaged to some extent in private professional practice was admitted, but the Grand Jury, notwith- standing Mr. Cooke's objection, passed the presentment, subject, however, to my opinion on the question of law, whether it was 42 legally competent for them to do so under tte circumstances afore • said, or whether the objection relied on by Mr. Cooke was well founded. The same objection was also raised before me on the part of Mr. Cooke to the fiating of the presentment, and on inquiry the follow- ing facts a;ppeared with regard to Mr. Crawford's private professional practice : — In September, 1863, Mr. Crawford entered into a contract with the Nenagh Poor Law Guardians for inspecting the construction of a wall about the Nenagh Workhouse premises, near Mr. Crawford's house, for the sum of £16, and accordingly superintended said works, and was paid that sum. In November, 1863, he also inspected a property near Temple- more, for the purpose of a sale in the Landed Estates Court, in order to suggest in what lots it should be divided and sold, but he did not survey or value same . He also, in January or February last, surveyed and valued (but without making any charge for same) a small property near Nenagh, for the purpose of a sale in the Court of Chancery. He also made a. report for Master Fitzgibbon in "Jackson, a Minor," as to the condition of a house and premises near Nenagh. He also admitted that he had engaged in private practice in some other trifling matters, in which he gave advice to friends who con- sulted him. He further stated in his affidavit that none of the matters in which he had been so engaged in private practice ever interfered with the discharge of his public duties. The question was argued before me by counsel. Mr. Cooke's counsel contended, that under the circumstances aforesaid, and the statute 24:th and 25th Vic. chap. 6, sec. 6, the presentment for Mr. Crawford's half-yearly salary at the increased rate should 43 not be fiated, and that as Mr. Crawford had engaged in private professional practice during said half-year, the payment of his increase of salary for such half-year should be withheld. Mr. Crawford's counsel contended on the other hand, that not- withstanding said resolutions and order of July, 1862, it was com- petent for the Grand Jury at any subsequent assizes to dispense with the condition against his engaging in private professional practice ; and that although said condition had not been complied with, it was still competent for the Grand Jury at said last assizes to pass said presentment for £250, and direct same to be paid to him, and was discretionary with them whether or not they would withhold the payment of such increase of salary. I stated that I would reserve the case for the opinion uf the Judges, and T directed that in the meantime Mr. Crawford should be paid only £150 for his last half-year's salary, and that the question as to the payment of the remaining £100 (being the increase for the half-year) should be postponed till the decision of the Judges. I therefore request the opinion of the Judges upon the legality of said presentments for £250, and. upon the following questions : — I Was it competent with the Grand Jury at the last assizes, under the circumstances aforesaid, and notwithstanding said resolutions and order of July, 1862, to dispense with said condition, of Mr. Crawford not engaging in private professional practice, and to pass such presentment for its full amount ? Was it, under said 6th section, merely discretionary with the Grand Jury whether or not they should withhold the payment of said £100 (the increase of salary for said half-year), inasmuch as said condition had not been complied with during that period, or was it obligatory on them, under the circumstances aforesaid, to withhold such payment ? Whether such presentment was legal, and should have been fiated by me to its full amount ? James O'Brien. 26iA May. 1864. 44 After hearing counsel on both sides, there were — For the Presentment, Against, Deast, Bakon,, Fixzgekaid, Baeon, PrtzGEEAU), Justice, Hates, Jitsticb. Hughes, Baeon, O'Bkien, Justice, Cheistian, Justice, Keogh, Justice, MoNAHAK, Chief Justice, C.P. Chief BAJBOif, Chief Justice. Arrangement Mr. Justice O'Beieit proposes that in Kilkenny and Waterford for circuit of ' business for the Junior Judge should take the city Crown business, the Civil Kilkenny and ^^^ Appeals, and the County Records ; and that the Senior Judge Waterford. should take the county Crown business and city Records. Resolved unanimously that such should be the order of business. INDEX Arrangements of Circuits ... ... ... 1,85,44 Appeals from Civil Bill Courts ... ... ... 1 0, i 2 Attorneys in Civil BiU Courts ... ... ... ... 4 Apportioning a Presentment between two counties ... ... 38 Burning (Malicious Injury) ... ... ... .. 2 Carrickfergus ... ... ... ... ... 1 Circuit Arrangements ... ... ... 1,85,44 Connaught Circuit ... ... ... ... ... 2 Claimfor Malicious Injury (Burning, &c.) ... ... 2,6,7,30,31 Certificate of Counsel at Consolidated Nisi Prius ... ... 5 Costs in Civil Bill Appeals ... ... ... 10,12 Civil Bill Court (Right of Attorneys to act) ... ... 4 Contractor (Certificate of Surveyors for payment) ... ... 6 Counsel's Fee in Civil BLU Appeals ... ... ... 6 Drainage Acts ... .. ... ... ... 5 Damage by Railway Company ... ... ... 20,26,35 Ejectment (Notice Surety) ... ... ... ... 24 Flagging Footways (Presentment for) ... ... ... 3 Flax (Malicious Injury) ... ... ... ... 30 Fee to Counsel in Civil Bill Court ... .. ... 12 G-alway (Circuit Arrangement) ... ... ... 3 General Orders ... ... ... ... 5,24 Grand Jury (Presentments) ... ... 6, 7, 20, 26, 3 1 , 32, 35, 38, 39 Junior Judges to receive bye-laws Drainage Acts ... ... 5 Jurisdiction of Judge to postpone Trial of Traverse ... ... 19 Landlord and Tenant Act (General Order) ... ... . ... 24 Londonderry ... ... ... ... ... 19 ^»$b' Memorial of Incorporated Society of Attorneys Malicious Injury (Notice of) Malicious Injury to Flax . . Malicious Injury (apportionment between two counties) Notice of Claim for Malicious Burning Nisi Prius (Certificate of Counsel) Omagh (Presentments for Flagging) Payment of County Contractors Presentment (Grand Jury) Presentment for Damage to a Bridge Presentment of Surveyor's Salary Practice in Civil Bill Court Eailway Company (for Damage, &c.) Statutes referred to — 6 & 7 W. IV. c. 116, s. 135 & 137 14 & 15 V. c. 57, s. 111. 8 V. c. 20, s. 6. 14 & 15 V. c. 70, s. 9. 23 & 24 V. c. 154, s. 75. 22 & 23 V. s. 14. 24 & 25 V. c. 63. Surveyor's Certificate for Contractor Salary to County Surveyor Severance by Eailway Company Town Agents (for Country Attorneys) Trial of a Traverse (right to postpone) Traverse for Damage by a Railway Company Tenant Act 2, 6, 7, 8, 30, 3« 30 38 2, 6 5 3 6 38,39 32 39 41 20, 26, 35 7, 9, 30, ... 6 .. 18 20,26 ... 4 ... 18 20,26 ... 24