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Ireland.

EXCHEQUER DIVISION.

Nov. 11, 1881, and June 29, 1882.

(Before PALLES, C.B., FITZGERALD and DowSE, BB.) IN THE COURT OF APPEAL, Nov. 9, 1882, and Feb. 19, 1883.

(Before Law, L.C., MORRIS, C.J., DEASY and FITZGIBBON, L.JJ.)

O’KELLY v. HARVEY. (a)

to

pay

Justice of the Peace-Dispersing assembly believed to be unlawful

- Authority to disperse-Apprehended breach of the peaceDuty of a Justice of the Peace. In an action for assault and battery the defendant by the 11th

paragraph of his defence, alleged that divers persons, subjects of the Queen, unlawfully intending to injure the owners of farms in Ireland let to tenants in consideration of rent, did unlawfully conspire together to solicit numbers of those tenants, in breach and violation of their contracts of tenancy, to refuse to pay and not

their rents to the owners, and that on the 7th day of December, 1880, the plaintiff, being one of the persons who had 80 conspired together as aforesaid, and other persons met and assembled with intent, as defendant believed and had reasonable and probable grounds for believing, to aid, promote, pursue, and carry into effect the said unlawful conspiracy; and the defendant was, on the said 7th day of December, 1880, a justice of the peace for the county of Fermanagh (in which the meeting was held), and was lawfully present at the said meeting, and requested the plaintiff and other persons assembled to disperse, which they neglected to do, and the defendant thereupon laid his hand on the plaintiff in order to separate and disperse the meeting, using no more violence than was necessary, which was the assault and

battery complained of. By the 12th paragraph of his defence the defendant alleged the conspiracy to be to solicit tenants who held at rents exceeding Griffith's valuation not to pay their rents, and alleged that the plaintiff and others met and assembled with intent, as defendant believed and had reasonable grounds for believing, to aid and promote the said conspiracy; and in other respects this defence was similar to that contained in the 11th paragraph.

(a) Reported by JONES H. STAVELEY, Esq., Barrister-at-Law.

1883

()'KELLY Held, by the Exchequer Division, (1) That the 11th and 12th paraHARVEY,

graphs of the defence were bad on demurrer, on the ground that they did not allege as a matter of fact that the meeting was held

to promote or carry into effect the unlauful conspiracies mentioned Authority of

in the two paragraphs. (2) A justice of peace has no authority justice to dis- to disperse a meeting not shown to be unlawful because he reasonperse an unlau- ably believes it to be held with an unlawful intent. ful assembly. In the 13th paragraph of his defence the defendant set out certain

inflammatory placards posted by the promotors of the meeting of the 7th day of December, 1880, and their opponents, and alleged that informations were sworn from which it appeared that if the meeting was held the public peace would be broken ; that the defendant before the 7th day of December, 1880, read these informations, and had reasonable grounds for believing them and believed them to be true ; that he was a justice of the peace for the said county of Fermanagh, and believed and had reasonable grounds for believing that a breach of the peace would occur if the meeting were allowed to be held and continued, and that the public peace and tranquillity could not otherwise be preserved than by separating and dispersing the persons assembled ; that the defendant being present at the meeting requested the plaintiff and other persons assembled to disperse, which they neglected to do, and that thereupon the defendant laid his hand on the plaintiff in order to separate and disperse the plaintiff and the other persons so assembled, using no more violence than was necessary for the purpose,

which was the assault and battery complained of. Held, by the Exchequer Division, that the statements in the 13th

paragraph of the defence sufficiently showed that the meeting therein mentioned wus an unlawful assembly and that the defence was good. Held, by the Court of Appeal (1) That the Exchequer Division were

right in holding the 11th and 12th defences to be insufficient. (2) That there was no suficient allegation in the 13th paragraph of the defence from which it could be reasonably assumed that the meeting therein mentioned was in itself an unlawful assembly. (3) That on demurrer the 13th paragraph was a sufficient defence, for even assuming the pluintiff and others assembled with him to be doing nothing unlawful, yet, if there were reasonable grounds for the defendant, being a justice of the peace, believing as he alleges he did, that there would be a breach of the peace if they continued so assembled, and that there was no other way in which the breach of the peace could be avoided but by stopping and dispersing the plaintiff's meeting, the defendant was justified in taking the necessary steps to stop and disperse it. Humphries v. Connor (i7 Ir. O. L. Ř. 1) approved of. Beatty v. Gillbanks (9 Q. B. Div. 308) commented on and dis

tinguished. DI EMURRER by the plaintiff to the 11th, 12th, and 13th

paragraphs of the defendant's statement of defence.

O'KELLY

V. HARVEY.

1883.

The action was brought to recover damages for an assault and battery alleged to have been committed on the 7th day of December, 1880, on the occasion of an attempt to disperse a meeting held pursuant to certain advertisements. The following are the paragraphs of the statement of defence

Authority of to which the demurrer was taken :

justice to dis11. And by way of further alternative defence defendant says perse an unlawthat before the said 7th day of December, 1880, divers persons,

ful assembly. subjects of the Queen, in Ireland, to the number of ten and more, unlawfully devising, contriving, and intending to impoverislı and injure divers large numbers of persons, subjects of the Queenthat is to say, the owners of farms in Ireland, let to tenants in consideration of the payment of rent, unlawfully did conspire together to solicit divers large numbers of the said tenants in breach and violation of their respective contracts of tenancy, to refuse to pay, and not to pay, to the said owners, the rent which they the said tenants were and might become lawfully bound to pay, and which the said owners were and might become lawfully entitled to be paid under the said contracts of tenancy; and on the said 7th day of December, 1880, the plaintiff being one of the persons who had so conspired together as aforesaid, and divers other persons, to the number of one hundred and more, did meet and assemble together in the county of Fermanagh with intent, as defendant believed, and had reasonable and probable grounds for believing, to aid, promote, pursue, and carry into effect the said unlawful conspiracy ; and the defendant was, on the said 7th day of December, 1880, a justice of the peace for the said county of Fermanagh, and was lawfully present at the said meeting, and requested the plaintiff, and the other persons so assembled to disperse, which they neglected to do, and the defendant thereupon laid his hand on the plaintiff in order to separate and disperse the said plaintiff and the other persons so assembled together, using no more violence than

was necessary for the purpose aforesaid, which is the assault and battery complained of.

12. And by way of further alternative defence defendant says that before the said 7th day of December, 1880, divers persons, subjects of the Queen, in Ireland, to the number of ten and more, unlawfully devising, contriving, and intending to impoverish and injure divers large numbers of persons, subjects of the Queenthat is to say, the owners of farms in Ireland, let to tenants in consideration of the payment of rents exceeding the valuation of such farms respectively as valued under the Acts relating to the valuation of rateable property in Ireland, unlawfully did conspire together to solicit divers large numbers of the said tenants, in breach and violation of their respective contracts of tenancy, to refuse to pay, and not to pay, to the said owners the rent which they the said tenants were and might become lawfully bound to pay, and which the said owners were and might become lawfully entitled to be paid under the said contracts of tenancy; and on

O’RELLY the said 7th day of December, 1880, the plaintiff and divers other

persons to the number of one hundred and more did meet and HARVEY.

assemble together in the county of Fermanagh with intent, as 1883. defendant believed, and had reasonable and probable grounds for Authority of

believing, to aid, promote, pursue, and carry into effect the said justice to dis- unlawful conspiracy, and the defendant was, on the said 7th day verse an unlaw- of December, 1880, a justice of the peace for the said county of ful assembly. Fermanagh, and was lawfully present at the said meeting, and

requested the plaintiff and the other persons so assembled to disperse, which they neglected to do, and the defendant thereupon laid his hand on the plaintiff in order to separate and disperse the said plaintiff and the other persons so assembled together, using no more violence than was necessary for the purpose aforesaid, which is the assault and battery complained of.

13. And by way of further alternative defence defendant says that before the said 7th day of December, 1880, a certain printed notice or placard, as defendant well knew, was posted and circulated at Brookeborough, in the county of Fermanagh, in the words and figures following:

A GREAT LAND DEMONSTRATION
Will be held at Brookeborough, on Tuesday, 7th December.

Chair to be taken at one o'clock, by

Mr. FRANCIS LITTLE, Tattykeran,
The committee have obtained an almost positive assurance that the following
gentlemen from the Land League will attend :-

CHARLES S. PARNELL, M.P.,
T. D. SULLIVAN, M.P.,,
THOMAS SEXTON, M.P.,

and

Mr. A. J. KETTLE, a tenant farmer.
Several local farmers and gentlemen, with Mr. J. Jordan, will address the meeting.

The following resolution has been adopted by the Committee of Management, and they expect that it will be strictly observed :

Resolved, --That this meeting is of opinion that there should be no music or party emblems at the public meeting, and that we hereby request all parties to refrain from violating our unanimous resolution.

The farmers of all classes and creeds are invited to attend to hear the discussion and decide for themselves. Enniskillen.- Printed at the Fermanagh Reporter Office, by Wm. Timble.

And afterwards and before the said 7th day of December, 1880, a certain other printed notice or placard, as defendant well knew, was posted and circulated at Brookeborough aforesaid, in the words and figures following:

Orangemen of Fermanagb, will you allow your county to be disgraced by letting a Land League meeting be held (as advertised) at Brookeborough, on 7th Dec. inst., where addresses are to be delivered not only dishonest but treasonable, and opposed to your principles ?

When the Government won't protect Protestant life and property, it is time we should do so ourselves, and put à stop to all treasonable proceedings in our loyal county Fermanagh.

Remember the treatment of your brethren at Lough Mask!!! Assemble in your thousands at Brookeborough on Tuesday, and give Parnell and his associates a warm receptfon.

God save the Queen. Brookeborough, Dec. 4th, 1880.

(W. and J. Gibson, Printers, Enniskillen).

O'KELLY

v. HARVEY.

1883.

And afterwards, to wit on the 6th day of December, 1880, Authority of informations were duly sworn by Michael Toole, William Smyth justice to disBurnside, and William Elliott respectively, stating that if a "ful assembly meeting were held at Brookeborough aforesaid in pursuance of said first-mentioned notice or placard the public peace would be broken; and the defendant before the said 7th day of December, 1880, saw and read several informations, and believed, and had reasonable and probable grounds for believing, the statements therein contained respectively to be true, and that if a meeting were held in pursuance of said first-mentioned notice many persons called Orangemen would meet and assemble in pursuance of said secondly-mentioned notice, and the public peace would be broken ; and on said 7th day of December, 1880, the plaintiff and divers other persons, to the number of one hundred and more, did meet and assemble at Brookeborough aforesaid, in pursuance of said first-mentioned printed notice or placard, and in order to carry out the meeting therein referred to ; and on the 7th day of December, 1880, the defendant was a magistrate of the said county of Fermanagh, and believed, and had reasonable and probable grounds for believing, that a breach of the peace would occur if said meeting were allowed to be held and continued; and that the public peace and tranquillity could not otherwise be preserved than by separating and dispersing the plaintiff and said other persons so assembled as aforesaid; and defendant, being present at said meeting, requested the plaintiff and said other persons so assembled to disperse, which they neglected to do; and thereupon the defendant laid his hand on the plaintiff, in order to separate and disperse the plaintiff and said other persons so assembled as aforesaid, using no more violence than was necessary for the purpose aforesaid, which is the assault and battery complained of.

The plaintiff demurred, on the ground that the foregoing paragraphs did not show any justification in law of the trespass complained of.

During the argument of the demurrer the court allowed the defendant to amend the 13th paragraph by inserting the words

and had reasonable and probable grounds for believing" in two places. (a)

Moriarty and D. O'Riordan, Q.C. in support of the demurrer. - The pleadings do not state any grounds for the defendant's belief that the assembly was unlawful, nor is the assembly, in fact, alleged to be such. A justice of the peace is not authorised to arrest because he apprehends that a misdemeanour may be committed. A felony must have been perpetrated or a breach of

(a) The words inserted by way of amendment are printed in italics.

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