O'Kelly v Harvey

• Jurisdiction: Ireland
• Judgment Date: 19 February 1883
• Date: 19 February 1883
• Court: Court of Appeal (Ireland)

Appeal.

Before LAW, C., MORRIS, C. J., DEASY and FITZ GIBBON, L.JJ.

O'KELLY

and

HARVEY

Beatty v. GillbanksELR 9 Q. B. Div. 308, See Beatty V. Glenister, W. N. April 5, 1884 — [ED.]

Humphries v. ConnorUNK 17 Ir. C. L. R. 1.

Beatty v. GillbanksELR 9 Q. B. Div. 308.

Justise of the Peace — Dispersing assembly believed to be unlawful — Apprehended breach of the peace.

Von. XIV.] Q. B., C. P., & EX. DIVISIONS., 105 O'KELLY v. HARVEY (1). Justice of the Peace-Dispersing assembly believed to be unlawful-Appre hended breach of the peace.• In an action for assault and battery, the Defendant pleaded that he was a Justice of the Peace for the county where the alleged assault was committed ; and in paragraphs 11 and 12 (substantially the same) of his statement of defence alleged that divers persons intending to injure others of the Queen's subjects-viz., owners of land in Ireland let to tenants in consideration of rent-unlawfully conspired together to solicit such tenants, in breach of their respective contracts, to refuse to pay rent to the owners ; and that, on the day of the alleged assault, the Plaintiff, being one of such conspirators, and divers other persons, met and assembled in the said county with intent, as the DeÂfendant believed, and had reasonable and probable grounds for believing, to promote and carry into effect the said unlawful conspiracy ; that the DeÂfendant, being present at the meeting, requested the Plaintiff and others so assembled to disperse ; and upon their failing to do so, the Defendant laid his hand on the Plaintiff to separate and disperse the meeting ; using no more force than was necessary ; such being the assault and battery complained of : Held, affirming the decision of the Exchequer Division, that the 11th and 12th paragraphs were bad on demurrer, for not alleging, as matter of fact, that the meeting was being held for the purpose of promoting or carrying into effect the objects of the alleged conspiracy. The 13th paragraph of the statement of defence set out certain inflammaÂtory placards posted by the promoters of the 'meeting and their opponents ; that informations were sworn, from which it appeared that, if the meeting was held, the public peace would be broken ; that the Defendant read these informations, and had reasonable grounds for believing them, and believed them to be true ; and that the Defendant, as such Justice of the Peace, believed and had reasonÂable'ground for believing, that a breach of the peace would occur if the meeting were allowed to be continued, and that the public peace and tranquillity could not otherwise be preserved than by separating and dispersing the Plaintiff and others so assembled ; that the Defendant, being present, requested them 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 other persons so assembled, using no more violence than was necessary for that purpose ; which was the assault and battery complained of. There was not, in the opinion of the Court (dissenting in this respect from the judgment of the (1) Before Law, C., Minnie, C. J., DEABY and Frrz GIBBON, L. JJ. VOL. XIV. LAW REPORTS (IRELAND). [L. It. I. Exchequer Division), any allegation in the 13th. paragraph showing that the meeting was in itself an unlawful assembly. Held, on demurrer, that the 13th paragraph of the defence was a good answer to the action, and that, even assuming that the Plaintiff and others assembled with him were engaged in no unlawful act, yet, as there were reasonÂable grounds appearing on the pleadings for the belief of the Defendant that there would be a breach of the peace if the meeting continued ; and as it was alleged in the defence that there was no other way of averting such breach of the peace except by stopping the meeting, the statement of defence sufficiently showed that the Defendant was justified in taking the necessary steps to stop and disperse the meeting. Humphries v. Connor (17 Ir. C. L. R. 1) approved of. Beatty v. Gillbanks (9 Q. B. D. 308) commented on and distinguished. APPEALS by the Plaintiff and Defendant from an order of the Exchequer Division, dated the 29th of June, 1882 ; the Plaintiff appealing from so much of the order as overruled his demurrer to the 13th paragraph of the statement of defence, and the DeÂfendant appealing from so much of the order as allowed the Plaintiff's demurrer to the 11th and 12th paragraphs ,of the same pleading. The material portion of the pleading, together with the argu ments in the Exchequer Division, and the judgment of that Court as delivered by Palles, C. B., will be found reported 10 L. R. Ir. 285. O'Biordan, Q. C., and Moriarty, for the Plaintiff. Serjeant Hemphill, James Murphy, Q. C., and F. N. Le Poer Trench,' for the Defendant. In addition to the cases cited in the argument before the Exchequer Division, counsel for the Plaintiff relied on Beatty v. Gillbanks (1). Cur. adv. vult. The judgment of the Court was delivered by LAW, C. :-(2) This is an action claiming damages for assault and battery, to (1) 9 Q. B. Div. 308. See Beatty (2) LORD JUSTICE DEASY was un v. Glenister, W. N. April 5, 1884- able to be present when judgment was [ED.] delivered. Yea. XIV.] Q. B., C. P., & EX. DIVISIONS. 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 intendÂing 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 respecÂtive contracts of tenancy, to refuse to pay, and not to pay their rents to the owners ; and that on the 7th December, 1880 (being the day mentioned in the Plaintiff's statement of claim), the PlainÂtiff, 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 conÂspiracy. The defence then alleges that the Defendant was a Justice of the Peace for the county of Fermanagh, and being preÂsent 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 the Plaintiff in order to separate and disperse the meeting, using no more violence than was necessary for that purpose ; and that this was the assault and battery comÂplained 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 the owners of lands in Ireland let to tenants at rents exceedÂing the general tenement valuation of such lands respectively. There is then a further defence, viz., the 13th, which alleges, that before the 7th December, 1880, a placard had, as the DefenÂdant knew, been posted announcing that-[His LORDSHIP read the 13th paragraph of the statement of defence as set out 10 L. R. Ir., pp. 287-289]. To these three defences the Plaintiff demurred ; and the ExÂchequer Division, after argument, allowed the demurrers to the 11th and 12th defences, but overruled the demurrer to the 13th de:'ence. 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 L2 108 LAW REPORTS (IRELAND). [L. R. I. Appeal. right in holding the 11th and 12th defences to be insufficient. 1883. They do not allege that, as a matter of fact, the meeting in ques O'KELLY tion was being held for the purpose of promoting or carrying into HARVEY. 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 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...