The King (at the prosecution of Joseph O'Neill) v The County Court Judge and Chairman of The Quarter Sessions, and Other The Justices of The Peace in and for The Country of Tyrone

CourtKing's Bench Division (Ireland)
Date14 December 1916

K. B. Div.

Before CHERRY L.C.J. and GIBSON.



Abercromby v. Fermoy CommissionersIR [1900] 1 I. R. 302.

Attorney-General v. AntrobusELR [1895] 2 Ch. 188.

Campbell v. Lang 1 M.'Queen 451.

Ex parte SmithUNK 7 T. L. R. 42.

Per Holmes L.J., at p. 313; Brinckman v. MatleyELR [1904] 2 Ch. 313.

R. (Donnelly) v. Kerry JJ. 2 N I. J. 175.

R. (kealy) v. Louth JJ.DLTR 35 I. L. T. R. 43.

R. (Roe) v. Roscommon JJ.IR [1905] 2 I. R. 101.

R. (white)v. Wicklow JJ. 1 N. I. J. 6.

R. v. Essex JJ. 20 W. R. 670.

R. v. Westmeath JJ. 15 W. R. 59.

White v. FeastELR L. R. 7 Q.B. 353.

Young v. Cuthbertson 1 M'Queen 455.

Justices — Jurisdiction — The ousting jurisdiction —— Claim to a right impossible in law.

96 THE IRISH REPORTS. [1917. K. B. Dir. THE KING (AT THE PROSECUTION OF JOSEPH O'NEILL) v. 1916. THE COUNTY COURT JUDGE AND CHAIRMAN OF Dec. 14. THE QUARTER SESSIONS, AND OTHER THE JUSTICES OF THE PEACE IN AND FOR THE COUNTY OF TYRONE (1). Justices — Jurisdiction — Title ousting jurisdiction — Trespass, Summary Trespass Jurisdiction (Ir.) Act, 1851 (14 4 15 Vict. c. 92), s. 8—Clatin to a right impossible in law. Where a defendant to a summons seeks to justify the act complained of as done in exercise of a right which could not exist in law, he cannot have " fair and reasonable grounds for a bona fide claim of right," and the justices should convict. Where a defendant so seeks to justify a trespass and the justices convict, their order, though bad in form, will not be quashed on certiorari, as the Court will in such case exercise its discretionary power, and refuse to make the order absolute. The prosecutor was convicted of trespass on the lands of C. He admitted the entry on the lands, but claimed it was made in exercise of a, right of way. The right claimed was a public right of way from a public road across C.'s lands to a private bathing-place on the land of R., C.'s neighbour. The justices stated in their order that the right claimed was not " substantially supported by evidence." held, that the right claimed being one impossible in law, the conviction was good ; and, even if the justices' order as made was bad in form, the Court in its discretion would not quash it on certiorari. CERTIORARI. MOTION to make absolute a conditional order for certiorari to bring up and quash a conviction of trespass made against the prosecutor by the justices of the peace for the County of Tyrone, sitting at Cookstown Petty Sessions, on the 8th September, 1916, and the order of the chairman and justices made at Dungannon Quarter Sessions, on the 9th October, on the appeal from the conviction at petty sessions. On the 6th September, 1916, one Richard Charles charged the prosecutor in a summons with trespass on the lands of Tullagh, of (1) Before CHERRY L.C.J. and GIBSON Tor,. TI.] ICING'S BENCE! DIVISION. 97 which Charles was tenant. Prior to the hearing the prosecutor K. B. Die. served notice of justification of the act complained of, on the 1916. ground that it was done in exercise of a right of way. The (O'NEILL) complaint was heard at Cookstown Petty Sessions, when the v. JUSTICES. OF prosecutor appeared as defendant personally, and...

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2 cases
  • Re Zwann
    • Ireland
    • Supreme Court
    • 23 July 1981
    ...311. 4 In re Singer (1960) 98 I.L.T.R. 112. 5 The State (M. Woods) v. Kelly [1969] I.R. 269. 6 R. (O'Neill) v. Justices of County Tyrone [1917] 2 I.R. 96. 7 Condon v. Minister for Labour [1981] I.R. 62. 8 The State (Browne) v. Feran [1967] I.R. 147. 9 The State (Dillon) v. Kelly [1970] I.R.......
  • State (Zwann)and Others v Attorney General
    • Ireland
    • Supreme Court
    • 23 July 1981
    ...which should be exercised by a judge considering an application for certiorari. In this respect he relied on R. (O'Neill)v. Tyrone JJ. 1917 2 I.R. 96 and argued that even if the Order were judicial and also bad on its face a court might well conclude that no injustice was thereby caused and......

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