Forbes v Lloyd

Judgment Date22 November 1876
Date22 November 1876
CourtCourt of Exchequer Chamber (Ireland)

Exch. Cham.




Martins v. Upcher 3 Q. B. 662.

Leary v. Patrick 15 Q. B. 266.

Jones v. BirdENR 5 B. & Al. 845.

Osborne v. GoughUNK 3 B. & P. 552.

The King v. PattesonENR 4 B. & Ad. 9.

Milward v. ThatcherENR 2 T. R. 81.

Verrior v. The Mayor of Sandwich Sid. 305.

The King v. PatemanENR 2 T. R. 779.

The King v. Venables 2 Lord Raym. 1405.

Rex v. BiggENR 1 Str. 18.

Jones v. Nicholas 13 . W. 361.

Breese v. Jerdeen 4 Q. B. 585.

Kane v. Lloyd 1 Ir. Jur. (O.S.) 208.

Jacklen v. FutcheENR 14 M. & W. 381.

Collins v. HungerfordUNK 7 Ir. C. L. R. 581.

Wright v. HortonENR 1 Holt, 458.

Jones v. Simpson 1 Cr. & Jer. 74.

Harding v. PollockENR 6 Bing. 25.

King v. PattesonENR 4 B. & Ad. 9.

Martins v. Upcher 3 Q. B. 662.

Leary v. Patrick 15 Q. B. 266.

Shergold v. HollowayENR 2 Str. 1002.

Magistrate — Clerk of the peace — Commission of the Peace, how vacated — Market dispute — Jurisdiction to enforce appearance — Illegal arrest — 14 & 15 Vict. c. 92, s. 17, sub-s. 1 — 14 15 Vict. c. 93, ss. 10, 11 — Action against magistrate & Notice of action — 12 Vict. c. 16.

552 THE IRISH REPORTS. [I. R. Com. Pleas. JUSTICE that this section is in pari materia with the Common Law 18'77. Procedure Act, and is, consequently, within section 232 of the O'RroRDAN latter Act. I quite agree as to the decision of the Court as to the v. RIORDAN. costs. LAWSON, J.-I concur. Judgment set aside, with five guineas costs to be paid by the Plaintiffs' attorney personally. Attorney for the Plaintiffs : Ashe. Attorney for the Defendants : Julian. Exch. Cham. 1876. (EXCHEQUER • CHAMBER) (1). FORBES v. LLOYD. Nov. 21, 22. Magistrate-Clerk of Peace-Commission of the Peace, how vacated-Market dispute-Jurisdiction to enforce appearance-Illegal arrest-14 4. 15 Viet. c. 92, s. 17, sub-s. 1-14 .5- 15 Vict. c. 93, ss. 10, 11-Action against magistrate-Notice of action-12 Vict. c. 16. 1. A magistrate-on verbal complaint of a market dispute having occurred on a market-day in a market-town-orally directed a policeman to bring before him (and, if necessary, to arrest for the purpose) the person against whom the complaint was made, and who had refused to attend at the request of the magistrate :-Held, that the arrest was illegal. 2. A person holding the Commission of the Peace was appointed Clerk of the Peace, and acted in both capacities for the same county :-Held, that the appointment to the Clerkship of the Peace did not vacate the Commission of the Peace. 3. A notice of action against a magistrate for acts done in the exercise of his office did not state the place in which the acts complained of had been comÂmitted :-Held; that it was insufficient. APPEAL by the Plaintiff against an order of the Court of Common Pleas, dated 14th January, 1873, allowing the cause shown by the Defendant against a conditional order obtained VOL. X.] COMMON LAW SERIES. 553 by the Plaintiff that a verdict for £50 should be entered up Exch. Chain. for the Plaintiff, pursuant to leave : and ERROR brought by the 1876. Plaintiff against the judgment of the same Court, on the 28th P - WOES of April, 1873, overruling the demurrers to the Defendant's fifth, LLOYD. sixth, seventh, and eighth defences. The plaint contained three counts : (1) for assault and battery ; (2) for assault, battery, and false imprisonment ; (3) for assault and false imprisonment, setting out special damage. The first three pleas traversed the acts complained of ; (4), pleaded to all the counts, averred that the Defendant was a magistrate of the county of Monaghan, that he had done the acts complained of as a magisÂtrate, and that the notice of action required by the 12 Viet. c. 16 had not been served on him ; (5), also to the several counts, pleaded a special justification, under the provisions of the Summary Jurisdiction Act, by the Defendant as a magistrate for the county of Monaghan ; that a market was being held in the town of MonÂaghan, in which the acts complained of were done ; that a dispute arose in the market between the Plaintiff and a third party as to a sale of butter ; that a verbal complaint was made thereof to the Defendant as such magistrate ; that acting as such magistrate the Defendant gave verbal directions to a constable to bring the parties before him that he might hear and determine such dispute, and that the constable did so bring the parties before him, and in doing so committed the grievances complained of ; (6), to the three counts, a special justification similar to the preceding, save as to the allegations as to the dispute having arisen in the market, as to which it was averred that one Michael Clerkson, with whom the Plaintiff had the dispute, made a verbal complaint to the DefendÂant, stating that a dispute had arisen ; (7) a special justification similar to the first, confining it to the assault in the first count, the assault and imprisonment in the second count, and the whole of the third count; (8) a special justification similar to the second, confining it in same manner as to the last defence. To the fifth, sixth, seventh, ald eighth defences the Plaintiff reÂplied; and also demurred, on the grounds that the fifth, sixth, seventh and eighth defences did not disclose any answer good in substance to the causes of action to which they were respectively pleaded, beÂcause-it appeared that the Defendant sought to justify the assault VoL. X. 2 P 564 THE IRISH REPORTS. CL _Exch. Chaos. and arrest of the Plaintiff, although prior to such assault or arrest 1876. nothing had been done entitling the Defendant as a Justice of the FO KBES Peace to commit such assault or make such arrest ; and because LLOYD. no information, summons or warrant had previously been made, issued or granted, under which said assault or arrest could be jusÂtified; and because the said complaint alleged to have been made was a mere verbal one, without oath or information ; and because even in a case of summary jurisdiction a summons should have been issued in the first instance for the purpose of insuring the Plaintiff's presence, and without such no arrest for that purpose can be justified. The demurrer was overruled by the Court of Common Pleas on the 28th of April, 1873. The case was tried before Monahan, C. J., and the facts and law points are briefly as follows :- The Plaintiff was in the employment of a Mr. Pringle, a butter merchant in Monaghan, and his duty was to weigh butter bought, and to pay for it at prices marked on the vessels by his employer; while so employed a dispute arose between him and a man named Clerkson about some butter ; Clerkson complained to a constable who accompanied 'him to the Defendant, and the constable said : " Here is a man who alleges that Mr. Forbes (the Plaintiff) has paid him for less butter than he got." The Defendant then sent the constable to tell the Plaintiff to come to him, but he refused then to come ; and this being reported to the Defendant, he ordered the constable to bring him. The Plaintiff again refused to come, and demanded from the constable his warrant ; whereupon the conÂstable then laid hands on him and brought him to the Defendant, who then heard the market dispute and dismissed the complaint. This was the evidence for the Plaintiff, and the following notice of action having been entered, his ease closed. "NOTICE or Aerrox.-To Lieut.-col. Jesse Lloyd,rof Ballyleck, county Monaghan, J. P. :- " do hereby, as attorney for Mr. Alexander...

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