The Attorney-General v Kissane

• Jurisdiction: Ireland
• Judgment Date: 18 February 1893
• Date: 18 February 1893
• Court: Chancery Division (Ireland)

Q. B. Div.

Appeal.

Before SIR P. O'BRIEN, C.J., and O'BRIEN, JOHNSON, and MADDEN, JJ.

THE ATTORNEY-GENERAL

and

KISSANE

Miller v. KnoxENR 4 Bing. N.C. 574; 6 Scott, 1. See sub nom. Knox v. Gavan, Jones, 211.

O'Dea v. HickmanUNK 18 L. R. Ir. 233.

Rex v. Reily1 Ir. Term Rep. 1784 — to elect delegates to consider plans for reform of Parliament.

Miller v. KnoxENR 4 Bing. N. C. 574; 6 Scott, 1.

Hodgson v. LynchUNK Ir. Rep. 5 C. L. 353.

Yourrell v. ProbyUNK Ir. Rep. 2 C. L. 460.

M'Donnel v. Griffin 2 Law Rec. (O. S.) 255; and cf. Stat. West. 2 (13 Edw. 1, stat. 1, c. 39).

Ash v. DawneyENR 8 Exch. 243.

Gregory v. Swift 5 Ell. & Bl. 571.

Miller v. KnoxENR 4 Bing. N. C. 574.

Foljambe's CaseUNK 5 Rep. 115b.

Knox v. Gavan Jones' Rep. at p. 214.

Mackalley's CaseUNK 9 Rep. 65a.

Multoties falsum responsum 13 Edw. 1, c. 39.

M'Donnel v. Griffin 2 L. R. (O. S.) 255 [1829].

Rex v. WilkesENR 4 Burr. 2539.

Jones v. Chennell 8 Ch. Div. 492, at p. 501.

In re KellerUNK 22 L. R. Ir. 158.

O'Brien v. The QueenUNK 26 L. R. Ir. 451.

Reg. v. BarnardoELR 23 Q. B. Div. 305.

Knox v. Gavan 1 Jones, 190.

Miller v. KnoxENR 6 Scott, 1; 4 Bing. N. C. 574.

Wall v. Attorney-GeneralENR 11 Price, 643.

Reg. v. FletcherELR 2 Q. B. Div. 43.

Reg. v. Steel Ibid. 37.

O'Shea v. O'SheaELR 15 P. D. 59.

Ex parte BrosnanUNK 22 L. R. Ir. 334.

Cox v. HakesELR 15 App. Cas. 506.

Barnardo v M'Hugh [1891] App. Cas. 388.

Ex parte SchofieldELR [1891] 2 Q. B. 428.

Reg. v. Tyler Ibid. 588.

In re FewaronELR 11 Q. B. Div. 545.

In re FrestonELR 11 Q. B. D. 545.

Barnardo's CaseELR 23 Q. B. D. 305.

Ex parte Bell CoxELR 20 Q. B. D. 1.

Ex parte Alice Woodhall Ibid. 832.

Scott v. BennettELR L. R. 5 H. L. 234.

Lechmere Charlton's Case 2 Myl. & Cr. 316.

Ex parte SkipworthELR L. R. 9 Q. B. 230.

The King v. Almon Wilmot's Judg. and Op. 234.

Taaffe v. Downes 3 Moore P. C. C. p. 36, n.

Miller v. Knox ENR 6 Scott, 1; 4 Bing. N. C. 574.

Skipworth's CaseELR L. R. 9 Q. B. 232.

Harvey v. HarveyELR 26 Ch. D. 644.

In re FrestonELR 11 Q. B. Div. 557.

Keller's Case 22 L. R. I. 158.

O'Shea v. O'SheaELR 15 P. D. 62.

Dublin, Wicklow, and Wexford Railway Co. v. SlatteryELR 3 App. Cas. 1155.

Contempt of Court — Sheriff — Posse comitatus — Constabulary — Execution of writs by night — Criminal cause or matter —, 1877, ss. 24, 50, 60 — Appeal.

226- LAW REPORTS (IRELAND). EL. R. I. THE ATTORNEY-GENERAL v. KISSANE (1). Contempt of Court-Sheriff-Posse comitatus-Constabulary-Execution of writs by night-Criminal cause or matter-Supreme Court of Judicature Act (Ireland), 1877, es. 24, 50, 60-Appeal. The sheriff, in his sole discretion, has the right to require the protection and assistance of the constabulary, as part of the power of the county, in the execution of writs of fieri facias of the Superior Courts, whether by night or day, and a refusal to give that protection and assistance will be punished as a contempt of the Court whence the writ issued. An order made by the Queen's Bench Division attaching a constable for refusing to aid the sheriff in the execution of a writ is a judgment in a criminal cause or matter, from which no appeal lies to the Court of Appeal. MOTION, 011 behalf of the sheriff of the county Kerry, to make absolute a conditional order for attachment, for contempt of Court, against Samuel Waters, County Inspector, R. I. C., for refusing to provide proper protection for the said sheriff in the execution of a writ of fieri facias, issued in the action, which was one at the suit of the Attorney-General for Ireland, against the, defendant, for the recovery of instalments payable in respect of a charge under the Drainage Acts, amounting to £20. The facts appear sufficiently from the judgment of the Lord Chief Justice. George Wright, Q.C. (11forphy, with him), for the sheriff : The sheriff is bound to execute the writs of Her Majesty's Courts, and is liable to civil action or to attachment if he fail to - use due diligence in so doing. In the execution of writs he is under no restriction as to time, but may seize at any hour either of day or night. He is entitled to call upon the liege subjects of the Crown to assist him in his duty. In former times, upon appointment, he received a patent of office, and a writ of assist VoL. Q. B. & EX. DIVISIONS. 221 ante, which latter contained an express command of the Sovereign, Q. 1893. so that all should give him their assistance when called upon to do SO. " Vobis mandamus quod eidem A. B. in omnibus quae ad gni ATTY - v. ,cium illud pertinent intendentes sitis, auxiliantes et respondentes ": KISSANE. Dalton's Sheriff, p. 3. Since 1836, the sheriff is appointed in Ireland by warrant of His Excellency, under. 5 & 6 Wm. 4, c. 55, but this statute expressly and effectually confers upon him all powers, &c., usually exercised by sheriffs, without any patent, writ of assisÂtance, or other writ whatsoever. Members of the constabulary are equally members of the posse comitatus, and bound to assist the sheriff. Refusal is a contempt of the Court whence the writ has issued, and of the Sovereign whose commandment it is : Dalton's Sheriffs, p. 354. Nay, from their position, the constabulary are even more bound than others to give their assistance : it is one of the recognised duties for which that force is equipped and paid ; and the refusal in this instance is not the mere recusancy of an individual, but the refusal of an officer not merely to give his personal services, but to allow his subordinates to aid the sheriff, as they are bound to do. The fact that the officer was acting under orders from the Executive can, of course, be no legal ground of excuse. The Law upon the subject is open to no doubt, and the opinion of the English Common Law Judges, adopted by the House of Lords in Hiller v. Knox (1), is undistinguishable and conclusive. When that case was decided, the Irish police were regulated under 6 Wm. 4, c. 13. The body is now governed by the provisions of 3 Geo. 4, c. 103; but this Act has in no way altered their position, as was emphatically laid down by Palles, C. B., at the Sligo Assizes, 1887 (2). Any constabulary rules or regulations could not legally affect the common law liability of constables to assist the sheriffs. Any such rule would be ultra vires, and void. The statutory enactments as to execution of civil-bill decrees (1) 4 Bing. N.C. 574 ; 6 Scott, 1. See (2) Judgments under the Crith. Law sub nonz. Knox v. Gavan, Jones, 211. Amendment (Ir.) Act, 1887, at p.29. 222 LAW REPORTS (IRELAND). [L. R. I, Q. B. Div. (31 Geo. 3, c. 31 (Ir.) ; 14 & 15 Vict. c. 57, s. 148 ; 27 & 28 Vict. 1893. c. 99, s. 23-on which, see also O'Dea v. Hickman (1) ) recognise ATTY.. GEN. this duty of the police as to the execution of civil-bill decrees, at v. KISSANE. least by day (2), and consequently still more assure the existence of the duty, without any limitation of time, as to writs of the Superior Courts of Law. The Executive seek to arrogate to themselves a discretion which belongs solely to the sheriff, or rather they seek to lay down a fixed rule, the result of which will be to render, in max cases, the execution of civil process impossible. The Attorney-General (The .3facdermot, Q.C.), The Solicitor-General (Hemphill, Q.C.), and Charles Iffacdermot, for Mr. Waters : The question is raised so as to obtain the authoritative decision of the Court as to the duty of the Executive and the duty of the constabulary in such circumstances as the affidavits in this case disclose, and to obtain an expression of opinion from the Court as to the reasonableness of executing its writs by night. Will this Court approve of seizures by night by attaching persons who refuse their assistance at so unseasonable a time ? [Sin P. O'BRIEN, C. J.: Might not that be to anticipate legislation? JOHNSON, J.: I do not feel called upon here to express any opinion upon the subject ; all that we have to do is to consider what the law is.] But the Court should exercise a discretion, especially in the case of a criminal attachment. It would be unreasonable to call out individual citizens by night to aid the sheriff ; the duty of a constable is admittedly no greater than that of members of the general public, and the attachment is here sought against an officer of constabulary, not for refusing his personal services, but for not 'forcing constables under his control to go out by night to assist the sheriff. [Sin P. O'BRIEN, C.J. : If the sheriff, bona fide, and in the (1) 18 L. IL Ir. 233. man, 18 L. R. Ir. at p. 242, and Irish (2) The question of the scope and Law Times of 18th February, 1893. operation of these statutes was not -REP. discussed. But see O'Dea v. Hick VOL. XXXII.] Q. B. & EX. DIVISIONS: 223 exercise of a sound discretion, thinks that it is necessary to seize Q. B. Div. by night, and thinks that the assistance of the police is necessary, 1893. ought he not to have that assistance ?] That is the question at ATTY.-GEN. v. issue. But, certainly, unless the Court considered that the KISSANE. refusal would be arbitrary and unreasonable in the case of a private person, no writ of attachment should issue. Rex v. Belly (1) shows that a sheriff has not an arbitrary power to convene the power of the county. The criterion will be, as was said by Tindal, C. J., in Miller v. Knox (2), at p. 631, " Was the request reasonable ? " So the same Judge, at p. 580, said-" We are all of opinion that the commissioners " ( who had the powers of a sheriff) " . .. have not the right arbitrarily to require the assistance of the liege subjects of the Crown." If a private person might refuse, on the ground of the sheriff's unreasonableness, and of the obvious risk to life attenÂdant on seizures by night, to go out as part of the posse comitatus, why not a police constable ? Such a discretion must be allowed to exist. [O'BRIEN, J.: But the Executive claims to lay down a general rule that...