Gallen v Lee

JurisdictionIreland
CourtHigh Court (Irish Free State)
Judgment Date13 December 1936

High Court.

Gallen v. Lee
PATRICK GALLEN
Plaintiff
and
HENRY MURRAY LEE, Defendant (1)

Circuit Court - Jurisdiction - Tort committed by person ordinarily resident in Northern Ireland - Courts of Justice Act, 1924 (No. 10 of 1924),sects. 25, 48, 52, 60 and 66 - Rules of the Circuit Court, Or. I, r. 6 (vi);Or. XXXVII, r. 1 (9) - Submission to jurisdiction - Estoppel.

Appeal from the Circuit Court.

On the 12th October, 1933, the plaintiff, Patrick Gallen, obtained leave from the Circuit Court Judge of Cavan (Judge Sheehy) to serve a Civil Bill for damages for assault and trespass out of the jurisdiction on the defendant, Henry Lee, and the plaintiff served notice of this order on the defendant. The defendant, who resided in Northern Ireland, was a sergeant in the Royal Ulster Constabulary, stationed, at the date of the complaint, on customs duty on the frontier between Northern Ireland and the Irish Free State at Enniskillen.

On the 13th November, 1933, the defendant served a notice to set aside this order of Judge Sheehy on the ground that the alleged tort was not committed in the Irish Free State, and also on the ground that the defendant had no place of residence in, or did not carry on any business in the Circuit District or elsewhere in the Irish Free State.

When this motion came on for hearing the affidavits made in support of it were so conflicting that Judge Sheehy reserved the further hearing of it until the cause of action set out in the Civil Bill was heard. The action came on for hearing before Judge Sheehy and a jury on the 21st February, 1934, when the defendant's motion was refused, and the plaintiff was awarded £10 damages.

From this decree the defendant appealed. The further facts are set out in the judgment of Hanna J.

A Judge of the Circuit Court has no jurisdiction to try an action for tort where the defendant does not ordinarily reside or carry on any profession, business or occupation in any part of the Irish Free State.

So held by the High Court (Hanna and O'Byrne JJ.).

Scope of sects. 48 and 52 of the Courts of Justice Act, 1924, considered.

Cur. adv. vult.

Hanna J.:—

Some years ago there was staged in the Abbey Theatre a Play, entitled "Partition," written by a Dublin solicitor, which forecast some of the amusing and embarrassing incidents that might arise from the creation of the border between North and South. The facts of this case would make another border comedy.

The appeal is brought by the defendant from a verdict given against him by a jury for the sum of £10, being damages for assault. The defendant, Lee, is a sergeant in the Royal Ulster Constabulary, while the plaintiff, Gallen, is a farmer living in the Free State whose lands extend on both sides of the border of County Fermanagh and County Cavan.

Though the stories told by the two parties conflict I must take the facts as apparently believed by the jury.

Sergeant Lee, being suspicious about certain cattle which he observed on the plaintiff's lands on the Northern side of the Border, was of a mind, for the purposes of arrest, to entice the plaintiff over the Border into Northern Ireland—a line which at this point has both position and magnitude, being a low wall, part of a ruined shed on the plaintiff's land.

The local view of the border in that district seems to be that when the sergeant sat on the wall with his feet towards the North he was in Northern Ireland and, if with his feet towards the South, he was in the Free State.

The sergeant, with an accompanying constable, came to the wall on the 1st September, 1933, and, standing on the Northern side of the wall, blew his whistle, which was understood to invite the plaintiff to come across to him in the manner of the spider and the fly. The plaintiff after some time came up to his own side of the wall from his house. After some apparently friendly conversation about the cattle, the sergeant, having sat down on the wall with his feet towards the South, took a statement from the plaintiff as to the cattle and asked him to sign the same. He handed the book to the plaintiff who, having signed it, was handing it back when the sergeant seized him by the collar and with the assistance of the constable endeavoured to drag him across the Border into Northern Ireland. The plaintiff, who is a powerful man, was able to resist both of them, and in a somewhat prolonged struggle succeeded in rolling, with the two members of the Royal Ulster Constabulary, along the ground some distance down the hill on the Free State side, proclaiming all the time that they had no jurisdiction in the Free State to arrest him or interfere with him and were committing an assault. The only unpleasant element is that it was alleged that the sergeant at one point drew his revolver and the plaintiff called upon his son to bring his gun, and thereupon undoubtedly the situation contained elements of tragedy, had not the sergeant sent the...

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3 cases
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