« PreviousContinue »
it at some people he had heen fighting with, intending to strike one or more of them, hut not intending to break the window, and found the prisoner guilty: it was held that the conviction must be quashed; hut the Court at the same time intimated that if the jury found that the prisoner at the time he threw the stone knew that the window was where it was, and that he was likely to break it, and was reckless of the consequences, the case might have been different: R. v. Pembliton (L. R. 2 C. C. R. 119; 43 L. J. (M. C.) 91; R. v. Welch (1 ft. B. D. 23; 45 L. J. (M. C.) 17); and ,.R. v. Martin (8 ft. B. D. 54V
1 (2). "Any real or personal property whatsoever " means men's perty" do nit tangible property, and not a mere incorporeal right. Thus include in\ where the soil of a moor was vested in the corporation of a town in fee, but the freemen were under statute entitled to "the full right and benefit to the herbage" of the moor for pasturing cows, it was held that such right was not "any real or personal property whatsoever " within the meaning of s. 52: Laws v. Eltringham (8 ft. B. D. 283; 51 L. J. (M. C.) 13).
There must be aotual damage to the realty itself: mere damage to uncultivated roots or plants growing on the realty, e.g. mushrooms is insufficient: Gardner v. Mansbridge (19 ft. B. D. 217).
Where a trespasser walked across a grass field, and thereby damaged the grass to the value of 6d., it was held that he was liable to he summarily convicted under s. 52: Gayford v. Chouler,  1 ft. B. 316.
[The same words occur in hoth sections: the only difference being that the offences specified in s. 51 are punishable on indictment, and those in s. 52 hy Justices under their summary jurisdiction.]
Injuries to real pro>
juries to incorporeal rights, but! must be in| juries to realty itse]
COUNTY COURT RULES OF COURT.
SCHEDULE OF COSTS AND FEES.
SUMMARY OF PROCEDURE.
PROCEDURE: General Observations.
Procedure: As already explained in the Introductory Note, the G^Trai jurisdiction hitherto vested in the several Presentment °ttons"~ Sessions and Grand Juries and other local bodies in Ireland in relation to compensation for "Malicious Injuries" is, under the style of "Criminal Injuries," transferred by section 5 of the Act of 1898 to the several County Courts in Ireland; and such jurisdiction thereby widely extended, not merely in the matter of the subjects of compensation, but also in the powers of the Court, and the rights of the parties to the proceedings. The former procedure for obtaining compensation and other matters connected therewith is abolished, and a new one (similar in most respects to that in vogue in the County Courts) substituted therefor; and such jurisdiction and procedure rendered uniform in every "Administrative County" and "County Borough " in Ireland.
The new procedure (which applies to cases of injuries committed after the "appointed day": see pp. 5-6, and 28 ante) is regulated by the County Court Rules of Court to which are appended Forms of all the necessary documents and Schedule of Costs. Those Rules provide for all the steps necessary to be taken in order to secure a trial of a claim for compensation in the County Court: the persons on whom and the times within which service of the necessary documents must be effected; the lodgment and advertisement of such documents as are required to be duly lodged or' advertised; and the preliminary proofs requisite for entering the case for hearing in the County Court. Forms for all necessary documents are provided. The form of application to the County Court to substantiate the claim is similar to that of a civil bill process; and by way of action against the County Council. Such action must be brought in the Division of the County in which the injury was alleged to have been committed, Procedure: except in cases of property injured where the injury was a^Trai committed within one mile of the boundary of two or 0*%TMa~ more counties. In such latter cases the action may be brought either in the Division where the injury was committed or in the Division of the neighbouring county nearest to the same place. But if such injury be committed in the city of Dublin, Belfast, Cork, or Londonderry the action shall be brought in the Recorder's Court of such city.
All such Rules, Forms, and Schedules of costs are hereafter fully set out.
Sect. 5 provides that on the hearing of such a claim in the County Court, the following persons and bodies, besides the claimant and the County Council, are entitled to appear and be heard: (1), the Council of the district; and (2), any ratepayer of the county; or, if the case require it, in addition to the above, (a) any County Council whose county is within one mile of the place where the injury is alleged to have been committed, (b) any District Council similarly situated, and (c) any ratepayer of such neighbouring county. On such hearing the County Court Judge may give a decree against the County Council, or dismiss the action; and may award costs to or against any party to the proceedings.
The same section then provides that " any person or Council who appeared, or though not actually appearing was entitled to appear before the County Court," and also where the area of levy is less than the whole county, "the Council for any County District comprising all or any part of that area," may, if aggrieved with the decision, appeal to the Judge of Assize, "and subject to this Act and to Rules of Court, the County Courts (Ireland) Acts, 1851 to 1889, shall, except in so far as they require security to be given, apply in like manner as in the case of any other appeal"; and then follows a power in such Judge:.
Procedure: (1), to vary the decree in respect of the area of levy as cTZi-ai we^ as m respect of other matters; (2), to award costs 0bt"TM"~ against any party to the proceedings; and (3), a
general power in the Judges to make new Rules of ourt to regulate the procedure. No such Rules of . Court have as yet been made or Gazetted; but it is understood that they are in the course of preparation. Under the Rules Publication Act, 1893, such Rules (unless made provisionally under s. 2 of that Act) cannot come into force until their final approval after the lapse of forty days from the preliminary notice of publication thereof in the Gazette. Accordingly it is apparent that they will have no efficaoy until about the beginning of the month of June this year, at the earliest. If in the meantime, and in the absence of such Rules, final or provisional, any of the persons or Councils mentioned in s. 5 (4) shall be aggrieved by the decision of the County Court and desire to take advantage of the right of appeal to the Judge of Assize (including, in Dublin cases, a Judge of the High Court), it would appear that the proper course to adopt would be that provided by the County Court Acts and Rules of Court thereunder, in so far as they regulate the procedure in appeals to the Assizes in equity cases, except as to giving security.
The same section also confers on the Judge of Assize a new and important right of empanelling a jury on the trial of the appeal. It provides that " the Judge of Assize upon any such appeal shall, in addition to any other power, have power if he thinks fit to empanel a jury to try any issue of fact arising on the appeal, and such jury shall, if any party to the proceedings so requires, be a special jury." Thus, it will rest with the Judge to determine in the first instance whether or not he should empanel a jury; but if he so determines, then any party to the proceedings may require such jury to be a special jury, and it would appear from the language of the sectiou