The Queen, at the prosecution of William Smith, v Martin O'Brennan

• Jurisdiction: Ireland
• Judgment Date: 17 January 1854
• Date: 17 January 1854
• Court: Queen's Bench Division (Ireland)

Queen's Bench

THE QUEEN, at the prosecution of WILLIAM SMITH,

and

MARTIN O'BRENNAN

Clothier v. EssENR 3 M. & Sc. 216.

Birch v. SomervilleIR 2 Ir. Com. Law Rep. 67.

The Queen v. Manchester and Leeds Railway Company 8 Ad. & Ell. 413.

Parker v. Bristol and Exeter Railway CompanyENR 6 Exch. 184.

The King v. DohertyENR 13 East, 171.

Williams v. Lord BagotENR 3 B. & C. 72.

Anonymous case Loft's R. 348.

Regina v. Dunn 1 J. & S. 407.

Ex parte HumphrysENR 4 New Sess. Cas. 179.

Prickett v. Gratrex 8 Q. B. 1020.

Rex v. M'Kenzie 3 Bur. 1922.

The Queen v. Dunne 12 Ad, & Ell. 599.

Wilkes' case 2 Nel. 180.

Sir N. Storton's case Freeman, 354.

Rex v. Braithwaite 2 Lew. Cr. Cas. 55.

Haylock v. Sparke 1 Ell. & B. 471.

Regina v. Mayor of London 5 Q. B. 555.

Rex v. BrookeENR 2 T. R. 190.

Lawless v. The Commissioners of Police 13 Ir. Law Rep. 367.

Rudyard's caseENR 2 Vent. 22.

Anonymous caseENR 12 Mod. 565.

Rex v. Moreley 2 Bur. 1041.

King v. BassENR 5 T. R. 251.

Rex v. TregarthenENR 5 B. & Ad. 678.

Haylock v. Sparke 1 El. & 473.

COMMON LAW REPORTS. 589 magistrates might conceive they would have authority to make M. T. 1853. Queen's Bench similar orders in matters outside their jurisdiction ; we feel no THE QUEEN difficulty in saying that this order of the Justice cannot stand, v. we therefore make the rule absolute for the certiorari, but we CAMPBELL give no costs. Rule accordingly. THE QUEEN, at the prosecution of WILLIAM SMITH, v. MARTIN O'BRENNAN.* H. T. 1854. Jan. 11, 12, 17. IN this case a conditional order had been obtained on behalf of the prosecutor for a writ of certiorari. This order was in the following form : " The Queen, at the prosecution of 1" It is ordered by the Court " William Smith, v. Martin O'Brennan. ; " that a writ of certiorari do "issue, directed to Hugh O'Callaghan, one of her Majesty's Justices " of the Peace for the district of the Rotundo division of the Dublin " Metropolitan Police, to remove into this Court any articles of the " peace exhibited by Martin O'Brennan against the prosecutor, the " charge entered against the prosecutor on the 14th of October, at " the police-station for said division, the information made on or "after the hearing of a certain charge preferred against said pri In showing cause against an order nisi for a certioÂÂrari, it is no objection to the affidavit on which it was obtained, that it is not entitled in the cause. The affidavit, alÂÂthough sworn by a marksÂÂman, is not objectionable, because of the omission in the jurat by the officer, that the deponent unÂÂderstood what was sworn to. The conditional order was properly drawn up, by naming the prosecutor in the Court below the defendant in the order. A writ of certiorari will be granted to return a charge, information and recogÂÂnizance, on the application of a person arrested and bound over to keep the peace, on an information sworn before a police magistrate, though the applicant be not in actual custody, and not before the Court under a writ of habeas corpus. The writ will be granted even though it lead to ulterior proceedings against the Justice whose conduct is the subject-matter of inquiry. * PERRIN, J., Absente. vol.. 3. 75 L 590 COMMON LAW REPORTS. H. T. 1854. " Boner by said defendant on the 15th of October, before the said Queen's Bench " Hugh O'Callaghan, together with the order made by the said THE QUEEN " Justice on the hearing of hearing said complaint, and the recogni- O'BRENNAN. " zance entered by said prosecutor, unless cause," &c. This conditional order had been obtained on the affidavit of William Smith the prosecutor, which stated that he had been for some years employed in distributing hand-bills to passengers in the streets of Dublin, by which means he earned his livelihood. That on the 14th of October, he was occupied in the course of his said employment in distributing copies of a certain hand-bill, of which he had distributed between 400 and 500 copies to persons passing, who willingly accepted them. That without the remotest intention of.offending, he offered a copy to a lady who was passing at the time, leaning on the arm of Martin O'Brennan. That O'Brennan stretched his hand across the lady and took the bill out of ddpoÂÂnent's hand and passed, without making any remark to prosecutor, but returned in about five minutes, and seized deponent and dragged him violently along the street, and gave him in charge to a policeman, who took deponent to the police-station, where O'Brennan preferred a charge against him for annoying him by handing him a paper repugnant to his religious feelings. That this charge was taken down in writing, and deponent was detained in custody for half an hour, until be procured bail for his appearance. That on the following day, when he attended at the police-office, the charge came on to be heard before Hugh O'Callaghan, the Justice presiding, and O'Brennan gave evidence in support of the charge, but did not allege that deponent had committed any breach of the peace, in reference to O'Brennan, or had threatened or intended so to do, or that he had any reason to apprehend or suppose that deÂÂponent would commit a breach of the peace, or assault him, or would menace him with personal violence. That O'Brennan did not swear that in offering said hand-bill this deponent spoke to him ; and that deponent, until violently seized by O'Brennan, never spoke to him in his life, and never did use any unbecoming, violent or threatenÂÂing gesture towards him. That the said Justice, having heard O'Brennan, forthwith gave his judgment, and thereby ordered COMMON LAW REPORTS. 591 deponent to enter into a recognizance to be of good behaviour for H. T. 1854. Queen's Bench the future, or be committed to gaol for...