M'Donald v Bulwer

• Jurisdiction: Ireland
• Judgment Date: 21 November 1862
• Date: 21 November 1862
• Court: Court of Common Pleas (Ireland)

Common Pleas

M'Donald

and

Bulwer.

Lawrenson v. HillIR 10 Ir. Com. Law Rep. 177.

Barton v. Bricknell 13 Q. B. 393,

Learey v. Patrick 15 Q. B. 266.

Caudle v. Seymour 1 Q. B. 892.

Rex v. Lediard Sayer's Rep. 6.

Rex v. Lloyd Caldecott's Rep. 309.

Elsee v. Smith 1 Dow. & Ry. 102.

Cane v. Mountain 1 M. & Gr. 269.

Webb v. Ross 4 Hur. & Nor. 115.

Linford v. Fitzroy 13 Q. B. 247.

Brittain v. KinnairdENR 1 Brod. & Bing. 432.

In re Clarke 2 Q. B. 619.

Grady v. Hunt 1 Ir. Jur., N. S., 10.

Newboult v. ColtmanENR 6 Ex. 189.

COMMON LAW REPORTS. 549 M. T. 1862. Common Pleas M'DONALD v. BUMPER. (Common Pleas). Nov. 5, 6, 21. Tars was an action of assault and false imprisonment. The third To an action of sas assault ul imprison_ count of the summons and plaint alleged that the defendant, on false went, the de the 13th of September 1859, caused and procured the plaintiff fendant plead ed that he was to be arrested and taken into custody, and to be detained in such a Justice of the Peace for custody, and to be taken in such custody in and along divers public the county of K. ; that F. M an M. made streets, in Athy, to a Court-house, and there to be detained in cus- information on tody for the space of five hours then next following, oath, that he The fourth count alleged that the defendant assaulted the plaintiff, had lent a gun to P. L., who neglectedreturn a afterwards sam te,a and unlawfully imprisoned him for five hours. had The defendant pleaded to the third and fourth counts, that at the and that he respective times of committing the respective acts in said counts had reason to believe that it respectively mentioned, the defendant was a Justice of the Peace, was in the pos session of the duly assigned to keep the peace in and for the county of Kildare, plaintiff, who was a pawn- and that on the 13th of September 1859, one Francis A. Mills, broker at A.; that thereupon of Athy in the said county, came before the defendant as such the defendant - war a issued Justice, and duly made an information upon oath before the rant to the defendant, as such Justice, in the words following, that is to say:- constabulary constabular to search for " That he the said Francis A. Mills, about two months previous the gun, and to arrest the " to the said 13th day of September 1859, lent a gun to one party in whose possession it was found ; that the police found the gun in the plaintiff's possession and arrested him, and brought him before the defendant and another Justice, who thereupon caused the plaintiff to enter into a recognizance to answer the charge at a subsequent Sessions, when an order was made for the restitution of the gun ; and that the orders and warÂrant had not been quashed upon certiorari, and still remained in force. Held, that so far as the defence proceeded on the Pawnbrokers Act (26 G. 3, c. 43, s. 13), the act of the defendant could not be justified, inasmuch as it neither appeared that the gun had been unlawfully pawned, nor was there any • charge of felony alleged in the information ; and that the defendant had to that extent acted without any jurisdiction ; but that regarding the warrant as one for procuring the attendance of the plaintiff at the Petty Sessions, that the subsequent orders had been made in the same matter, and that the defendant had not acted wholly without jurisdiction ; and that until the orders had been quashed pursuant to the 12 Vic., c. 16, s. 2, no action in respect of what was done under the warÂrant was maintainable against the defendant. 550 COMMON LAW REPORTS. " Patrick Leonard, and that upon several occasions he the said " Francis A. Mills asked the said Patrick Leonard to return "the said gun to him the said Francis A. Mills, but the said "Patrick Leonard neglected so to do ; and that he the said Francis " A. Mills had reason to believe that the said gun was then in "the possession of the plaintiff, in the town of Athy aforesaid, the " said plaintiff then being a pawnbroker in the said town, and in the "Petty Sessions District of Athy, to the knowledge of the defendÂ" ant ; whereupon the defendant, as such Justice, issued a searchÂ" warrant under his hand and seal, directed to one D. H. Lawson, " then being a sub-inspector of the authorised constabulary of the " said county ; and authorising and requiring him, on the receipt " of the said warrant, to enter in the daytime, with the necessary " and proper assistance, into the house of the plaintiff, and make " diligent search there for the said gun ; and if the said constable " should find the same, or any part thereof, to bring it, together " with the person in whose possession the same should be found, " before the defendant or some other of the Magistrates Justices " of the Peace for the said county, to be further dealt with "according to law: by virtue of which warrant the constable " therein named entered the house of the plaintiff, being situate " within the jurisdiction of the defendant as such Justice, in the " daytime, in search for the said gun, and did accordingly search " therefor and found the said gun in...