O'KELLY

v.

HARVEY.

1883.

the peace actually have occurred before a justice of the peace can arrest (1 Burn's Justice of the Peace, page 293.) The plea in Humphries v. Connor (17 Ir. C. L. R. 1), alleged that the plaintiff's conduct did create animosity, and did tend to a breach of the peace; there is no statement to that effect in these Authority of justice to dis- pleadings. The defendant's belief that a breach of the peace perse an unlaw- would occur through an attack being made by another body upon ful assembly. the assembly (as the 13th paragraph in substance avers) would not justify the defendant in dispersing the assembly. There is no statement that the plaintiff was aware of the existence of the second placard, or that he knew of anything tending to a breach of the peace.

Le Poer Trench, Serjeant Humphill, and James Murphy, Q.C. for the defendant, in support of the pleading.-A meeting may be unlawful, either in its intention to create a breach of the peace, or in its result. Even assuming the meeting to be quite legal, yet, if it is calculated to disturb the peace, the magistrate is justified in dispersing it. The informations are incorporated with the pleadings, and may be read on the hearing of a demurrer (Dwyer v. Esmonde, 2 L. Rep. Ir. 243). The informations show reasonable grounds for the defendant entertaining a belief that the meeting was likely to cause a breach of the peace; and if he entertained such belief he was bound to disperse the meeting, and not wait until an actual breach of the peace occurred: (Reg. v. Light, 27 L. J. N. S. 1, Mag. Cas.; Reg. v. Vincent, 9 C. & P. 91; 5 Burn's Justice of the Peace, "Riot," pp. 169 and 170; Hayes' Crim. Law, p. 784). The pleadings show that the meeting was unlawful. The averment that certain persons had conspired to prevent the payment of rent, and that the meeting was convened, as the defendant believed, for the purposes of the conspiracy, constitute a sufficient justification for the defendant's dispersing the assembly (Redford v. Birley, 3 Starkie Rep. 76.)

Cur. adv. vult. PALLES, C.B.-This case was argued before us upon demurrers to three paragraphs of the statement of defence. The action was one for assault and battery. The 11th 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 to pay, their rents to the owners; and that on the 7th day of December, 1880, the plaintiff, being one of the persons who had so 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. It then alleges that the defendant was upon that day a justice of the peace for the county of Fermanagh, in which the meeting was held, that he requested the plaintiff, and other persons assembled to disperse, which they neglected to do, and

O'KELLY

V.

HARVEY.

that the defendant, in order to disperse the assembly, laid his hands on the plaintiff, &c. 1 he 12th defence alleges the conspiracy to be to solicit tenants who held at rents exceeding Griffith's valuation not to pay their rents; and alleges that the 1883. plaintiff and others met and assembled with intent, as defendant Authority of believed, and had reasonable grounds for believing, to aid and justice to dispromote the said conspiracy; and in other respects this defence perse an unlawis similar to the 11th. We are all of opinion that the conspiracies ful assembly. alleged in these defences were illegal, and that every meeting hold to promote them was an unlawful assembly, and might have been dispersed as such. If, therefore, these defences alleged, as a matter of fact, that the meeting in question was held to promote or carry into effect these conspiracies, they would be good. They do not, however, contain this allegation. The statement is, not that the meeting was, in fact, held with intent to promote the conspiracy, but that the defendant believed, and had reasonable and probable grounds for believing, that it was. Whether, however, the meeting was an unlawful assembly by reason of its having such unlawful intention depends, not on the belief of the defendant, but on a matter of fact. It is not alleged in either of these defences that there was a breach of the peace or an attempt to break the peace. On these pleadings, therefore, we must hold that it has not been shown that the meeting was an unlawful assembly. The question, then, is, Has a justice of the peace authority in law to disperse a meeting, not shown to have been unlawful, because he reasonably believes the meeting is held with an unlawful intent? I have not myself been able to find any authority in support of the affirmative of this proposition; none such has been cited at the bar, and I do not believe that any such exists. The numerous cases cited during the argument will be found to resolve themselves into two classes: First, with reference to arrests by justices; and as to this there is the wellsettled distinction that it is of felony, and not of misdemeanour, a reasonable suspicion must exist in order to justify the arrest by a justice. Even then, if the assault complained of here were the arrest of the plaintiff, and not the dispersion of the meeting, this class of cases could not validate the defence. The second class is of cases in reference to holding to bail to keep the peace and be of good behaviour under the statute of Edward III. This latter class of cases is utterly without application to the matter in hand. Finding, then, that such an authority in a justice as is now relied on has never, during the period of upwards of five hundred years during which the office has been known to our law, been confirmed by legal decision, nor, so far as we can find, ever claimed by a justice, we must hold that such an authority does not exist, and, consequently, that the 11th and 12th defences are unsustainable. We therefore allow the demurrer to these defences. The 13th defence sets out, inter alia, a printed placard, which stated that a Land League demonstration would be held at Brookeborough on Tuesday, the 7th day of December, 1880,

O'KELLY

v.

HARVEY.

1883.

and it alleges that on the said 7th day of December the plaintiff, and other persons to the number of one hundred and more, met and assembled at Brookeborough in pursuance of that placard, and in order to carry out the meeting therein referred to. It then states that the defendant was a magistrate of the said Authority of rustice to dis- county of Fermanagh, and that, believing, and having reasonable perse an unlaw- grounds for believing, that a breach of the peace would occur if ful assembly. 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 plaintiff and the said other persons so assembled as aforesaid, he requested the plaintiff and the other persons assembled to disperse, and that, they having neglected to do so, he laid his hand on the plaintiff in order to disperse the meeting. In my opinion, the law in reference to unlawful assemblies is accurately stated by Alderson, B. in his summing up in Reg. v. Vincent (9 C. & P. 109): "I take it to be the law of the land that any meeting assembled under such circumstances as, according to the opinion of rational and firm men, are likely to produce danger to the tranquillity and peace of the neighbourhood, is an unlawful assembly.' The allegations I have read from the defence, in my opinion, bring the meeting at Brookeborough within this definition, and I am therefore of opinion that the meeting did constitute an unlawful assembly, that the defendant, as a magistrate, was therefore justified in dispersing it, and that the defence is good. It was argued upon the part of the plaintiff that the allegation that the defendant believed that a breach of the peace would occur if the meeting were allowed to be held should be construed as meaning a breach of the peace by reason of the meeting being attacked by another body of men who were opposed to their principles. It is true that the defendant alleges that after the placard I have referred to was issued a second placard was posted and circulated at Brookeborough, addressed to the Orangemen of Fermanagh, and asking whether they would allow their county to be disgraced by letting a Land League meeting be held as advertised at Brookeborough on the 7th day of December, where it is stated addresses were to be delivered "not only dishonest, but treasonable, and opposed to your principles." This placard goes on to state, "when the Government won't protect Protestant life and property, it is time that we should do so ourselves, and put a stop to all treasonable proceedings in our loyal county of 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 reception." The defence also states that informations were sworn by certain persons stating that if the meeting were held at Brookeborough in pursuance of the first mentioned placard the public peace would be broken; that the defendant read those informations, and believed and had reasonable grounds for believing the statements therein contained to be true, and that if the meeting were held in pursuance of the first

O'KELLY

v.

HARVEY.

1883.

mentioned notice, many persons called Orangemen would meet and assemble in pursuance of the secondly-mentioned notice, and that the public peace would be broken. If it had been distinctly shown by the pleadings that the only breach of the peace which could reasonably have been anticipated was an Authority of attack by the Orange party upon the Land League party, the justice to discase possibly might have been different. Upon this I desire perse an unlawnot to offer any opinion one way or the other. The defence, ful assembly. however, does not confine the apprehended breach of the peace to such an attack. Upon the whole I am of opinion that the defence sufficiently shows that the meeting was an unlawful assembly, that this defence is therefore good, and that the demurrer to it must be overruled.

FITZGERALD and Dowse, B.B. concurred.

The plaintiff appealed from so much of the order made by the Exchequer Division as overruled his demurrer to the 13th paragraph of the statement of defence; and the defendant appealed from so much of the said order as allowed the plaintiff's demurrer to the 11th and 12th paragraphs of the said statement of defence.

The appeals came on for hearing on the 9th day of November, 1882.

O'Riordan, Q.C. and Moriarty for the plaintiff.

Serjeant Hemphill, James Murphy, Q.C., and Le Poer Trench,

for the defendant.

In addition to the cases cited in the argument before the Exchequer Division, counsel for the plaintiff now relied on Beatty v. Gillbanks (9 Q. B. Div. 308).

Cur, adv. vult.

The judgment of the Court of Appeal was delivered by

LAW, L.C.-This is an action claiming damages for assault and battery, to which several defences have been pleaded; we, however, have only to deal with three of these, viz., the 11th, 12th, and 13th. By the 11th defence the defendant alleges that divers persons intending to injure others of the Queen's subjects, viz., the owners of lands in Ireland let to tenants in consideration of rent, unlawfully conspired together to solicit such tenants, in breach of their respective contracts of tenancy, to refuse to pay and not to pay their rents to the owners; and that on the 7th day of December, 1880 (being the day mentioned in the plaintiff's statement of claim), the plaintiff, being one of such conspirators, and divers other persons, met and assembled in the county of Fermanagh with intent, as the defendant believed, and had reasonable and probable grounds for believing, to promote and carry into effect the said unlawful conspiracy. The defence then alleges that the defendant was a justice of the peace for the county of Fermanagh, and being present at the meeting, requested the plaintiff and others so assembled to disperse, which they neglected to do, and that thereupon the defendant laid his hand on

O'KELLY

v.

HARVEY.

1883.

the plaintiff in order to separate and disperse the meeting, using no more violence than was necessary for that and purpose, that this was the assault and battery complained of. The 12th defence is substantially the same as the 11th, the only difference being that it alleges the conspiracy to have been directed against Authority of justice to dis- the owners of lands in Ireland let to tenants at rents exceeding perse an unlaw- the general tenement valuation of such lands respectively. There ful assembly. is then a further defence, viz., the 13th, which alleges that before the 7th day of December, 1880, a placard had, as the defendant knew, been posted announcing that [His Lordship read the 13th paragraph of the statement of defence.] To these three defences the plaintiff demurred, and the Exchequer Division, after argument, allowed the demurrers to the 11th and 12th defences, but overruled the demurrer to the 13th defence. The defendant has appealed against so much of the order as allowed the demurrers to the 11th and 12th defences, whilst the plaintiff has appealed against that part of it which overruled the demurrer to the 13th defence. We are all of opinion that the Exchequer Division was quite right in holding the 11th and 12th defences to be insufficient. They do not allege that as a matter of fact the meeting in question was being held for the purpose of promoting or carrying into effect the objects of the conspiracies referred to, but merely that the defendant was a justice of the peace, and believed, and had reasonable and probable grounds for believing, that the meeting was so held. This clearly is not enough; and the authorities cited by the defendant's counsel in the course of their argument as to arrest upon the suspicion of a felony having been committed, so far as they have any bearing at all on the present case, rather tend to show that the defences are bad. It is to be observed that there is here no allegation that there was any breach of the peace either actually occurring or about to occur. The defences simply justify the defendant's action on the ground that he reasonably believed the meeting in question to be held with intent to commit a misdemeanour not involving any breach of the peace. For such a justification there is no precedent or authority, and accordingly I think the decision of the Exchequer allowing the demurrers to these 11th and 12th defences should be affirmed, and the defendant's appeal be dismissed accordingly. A question of somewhat greater nicety arises on the 13th defence, which the court below held to be good, overruling the plaintiff's demurrer to it. This defence, after stating the placard announcing the "Land Demonstration" to be held at Brookeborough on the 7th day of December, and the posting and circulation of a counternotice addressed to the Orangemen of Fermanagh calling upon them to assemble in their thousands at Brooke borough on that day and give the others a warm reception; that thereupon informations were sworn which stated that if the land meeting were held the public peace would be broken; that the defendant read these informations and had reasonable grounds for believing and believed them to be true; and that if the land meeting were held