William Murphy and Others v William Thomas Bristow Lyons and Alexander Crossett

• Jurisdiction: Ireland
• Judgment Date: 23 June 1864
• Date: 23 June 1864
• Court: Queen's Bench Division (Ireland)

Queen's Bench

WILLIAM MURPHY and others

and

WILLIAM THOMAS BRISTOW LYONS and ALEXANDER CROSSETT.

The Duchess of Kingston's case 2 Sm. Lead. Cas (5th ed.) 664.

Vooght v. WinchENR 2 B. & Ald. 662,

Sabourin v. MarshallENR 3 B. & Ad. 440.

Weaver v. PriceENR 3 B. & Ad. 409.

Milward v. Caffin 2 Sir Wm. Bl. 1330.

Governor of the Poor of Bristol v. WaitENR 1 Ad. & El. 264.

George v. ChambersENR 11 M. & W. 149.

Jones v. JohnsonENR 5 Exch. Rep. 862.

Scadding v. Lorant 13 Q. B. 687; S. C., 3 H. L. Cas. 418.

Woods v. ReedENR 2 M. & W. 777.

Siebald v. Roderick 11 Ad. & Ell. 38.

Lord Amherst v. Lord SomersENR 2 T. R. 372.

Fernley v. Worthington 1 M. & Gr. 491.

Marshall v. PitmanENR 9 Bing. 595.

Newbould v. ColtmanENR 6 Exch. Rep. 189.

The Churchwardens of Birmingham v. ShawUNK 10 Q. B. 868: S. C., 2 Dowl., N. S. 783.

Wilson v. Weller 1 Br. & Bing. 57; S. C., 3 B. Moore, 291.

The Queen v. Bradshaw 29 Law Jour., N. S., Mag. Cas. 176.

Luton Local Board of Health v. Davis 29 Law Jour., N. S., Mag. Cas. 173.

Pedley v. DavisENR 10 C. B., N. S. 492.

Fawcett v. Fowlis 7 B. & Cr. 394.

Ex parte May 2 B. & Sm. 426.

The Queen v. Justices of Kingston and Philips 1 Ell., Bl. & Ell. 256.

Brittain v. Kinnaird 1 Br. & Bing. 432.

Cave v. Mountain 1 M. & Gr. 257.

Queen v. Bolton 1 Q. B. 66.

Palmer v. Ekins 2 Lord. Ray. 1553.

Sanderson v. Collman 4 M. & Gr. 220.

Doe v. Huddert 4 Dowl. 436; S. C., 2 C., M. & K. 216.

Doe v. Wright 10 Ad. & Ell. 763.

Ingleton v. BurgessENR Carth. 65.

Outram v. MorewoodENR 3 East, 346.

Milward v. Caffin 2 Sir W. Bl. 1330.

The Governor of the Bristol Poor v. WaitENR 1 Ad. & El. 264.

The Churchwardens of Birmingham v. Shaw 10 Q. B. 868.

Weaver v. PriceENR 3 B. & Ad. 409.

Weaver v. PriceENR 3 B. & Ad. 409.

of the peace, or to do, or join in any illegal act, but who is likely to be made an object of insult or injury by other persons who are about to break the Queen's peace. I would not have ventured to express my doubt except that very important consequences may result from the principle of the decision of my Brothers in this case. I do not see where we are to draw the line. If a constable is at liberty to take a lily from one person, because the wearing of it is displeasing to others, who may make it an excuse for a breach of the peace, where are we to stop ? It seems to me that we are making, not the law of the land, but the law of the mob supreme, and recognising in constables a power of interference with the rights of the Queen's subjects, which, if carried into effect to the full extent of the principle, might be accompanied by constitutional danger. If it had been alleged that the lady wore the emblem with an intent to provoke a breach of the peace, it would render her a wrongdoer ; and she might be chargeable as a person creating a breach of the peace. I have thought it necessary to express the doubts which I enterÂÂtain ; but I defer to the greater experience of my Brethren. May 3, 4, June 23. DEMURRER.-The action was in replevin; and the writ of summons The special Act for the and plaint contained one paragraph, which stated that the defend- borough of B. enacts that the ants, on the 20th day of May 1862, in a certain mill or factory of the limits of the Act shall be the borough of B. for the time being ; and the Act is to be put in force within those limits subject to the subsequent provisions of the Act. Section 276 enacts that "It shall be lawful for the Council from time to time to direct and declare what districts within the limits of this Act shall be lighted and watched under the authority of this VOL. 17. 2 L 10 COMMON LAW REPORTS. plaintiffs, situate at or contiguous to Linfield road, near to the town of Belfast, in the county of Antrim, took and unjustly detained the goods and chattels of the plaintiffs, that is to say, 680 bundles or webs of linen cloth, to the plaintiffs' damage of 50. Defence :-That, on the 1st of January 1854, the Council of the borough of Belfast, in pursuance of, and for the purposes mentioned in, the 8 & 9 Vic., (Loc. & Per.), c. 142, modified and extended by other statutes, duly made a rate for the period from the 1st of January 1854 to the 31st of December 1854, upon the occupiers of all houses, buildings, tenements, quays, wharfs, and other hereditaÂÂments, within the limits of the said borough, according to the annual value of the same-that is to say, &c.; and, when the said annual value did exceed 20, a rate of two shillings in the pound; and the said rate was afterwards duly signed by the Mayor and Town-clerk. Averments :-That, at the time of the making of the said rate, and from thence hitherto, the plaintiffs were the occupiers of certain tenements and hereditaments, to wit, a spinning mill and manufacÂÂtory, situate at Linfield road, within the limits of the said borough, and in the county of Antrim, consisting, of, &c., and all other the appurtenances hereinafter styled tenements and hereditament, No. 1, exceeding the annual value of 20, to wit, the annual value of 500, and in respect of which the plaintiffs were subject and liable to the payment of said rate ; and that as such occupiers the plaintiffs Act; and in like manner from time to time to declare and direct whether any and what districts shall be added to the parts already lighted and watched ; and the disÂÂtricts so appointed to be lighted and watched as aforesaid, and the districts from time to time added thereto, shall be considered as the districts to be lighted and watched by the Council under the authority of this Act, until the same shall be altered by the Council ; and the owners and occupiers of any messuages, houses, shops, buildings or premises, not within the district so from time to time set oat and lighted and watched, shall not be subject or liable to payment of any of the rates by this Act directed to be raised." The Act contained sections giving appeal to P. S. A was the owner of certain premises within the limits of the borough, in a district " directed to be lighted and watched," but not actually lighted and watched. Raving been assessed for certain rates, A did not appeal, and now sought to raise the question of his liability by action of replevin. Held (FITZGERALD, J., dissentiente) that A's position ousted the jurisdiction of the Town Council ; and so that the question could be raised by action. By a subsequent special Act (16 & 17 Vic., c. 114) it was provided that the owner of a demesne of forty acres, -under certain circumstances, should be exempt. Held, that this section does not oust the jurisdiction of the Town Council, bat, being only matter of exemption, should be raised by appeal, and not by action of replevin. COMMON LAW REPORTS. 11 were by the said rate duly rated in the sum of 50, being two E. T. 1864. ueen's Bench shillings in the pound upon the aforesaid annual value of the said Q tenements and hereditaments.-[Like averments, with respect to MURPHY v. certain other premises, situate at the same place, and styled " Tene- LYONS. ments and hereditaments No. 2," and rated for the year 1854 to the amount of 58.]-And the defendants aver that, after the making of the said rate, the said Council caused public notice thereof to be given, by posting, &c.; and did further direct, as provided by the said statutable enactments in that behalf, that the same should be, and the same was thereby, made payable on the 20th of January 1854. And the defendants further aver that the said rate was open to the inspection of all persons rated therein, at all seasonable times; and the defendants further aver that the plaintiffs did not appeal against said rate. [Then followed like averments, with respect to rates struck, on the 1st of January in each of the years 1855, 1856, 1857, 1858, and 1859.] The defendants further averred that, after the rates were respectÂÂively due and payable, payment of them respectively was by the Council's collectors demanded in writing from the plaintiffs, who made default ; that, after the expiration of fourteen days from the making of the demand, six several summonses were, on the appliÂÂcation of the Council, issued by the defendant Lyons, a Justice of the county, having full jurisdiction in that behalf, requiring the plaintiffs to appear before two Justices, and show cause why the respective rates, with interest thereon, should not be paid; that the summonses were served on the plaintiffs, who appeared before the defendant Lyons and another Justice, and failed to show sufficient cause ; that the Justices made orders for the payment of the respective amounts and costs; that no part of the respective amounts was paid; that the plaintip did not appeal against the said respective orders within four months after the making of them, which period had elapsed, and the costs had been remitted before the issuing of the warrants hereinafter mentioned; that, on the 10th of May 1802, the defendant Lyons issued six several warrants, addressed to the defendant Crossett, one of the Council's 12 COMMON LAW REPORTS. E. T. 1864. collectors, requiring him to levy the amount of the six rates by Queen's Bench distress ; that all things required by law were done and happened V. MIIRPOY to authorise the defendant Lyons to issue the warrants, and to V. LYONS. make them valid and enforcible against the plaintiffs' goods for the said sums ; that the warrants were delivered to Crossett for execution; and that he, according to the exigency of the warrant, seized and took the goods and chattels mentioned in the summons and plaint, as a distress for the non-payment of the rates, and detained the same, as he, for the reasons aforesaid, lawfully might ; which are the respective grievances, &c. First replication :-That the tenements and hereditaments in said defence mentioned were not, nor were any of them, at the time of the making of the respective rates, or of any of them, by the Council, situate within a district in said borough set out, and...