William Miller, Esquire, and John Malone, Appellants; and the very Rev. Edmond Dalrymple Hesketh Knox, Respondent; in the Cause of the said very Rev. Edmond Dalrymple Hesketh Knox, Plaintiff; and John Gavan and Others, Defendants
| Jurisdiction | England & Wales |
| Judgment Date | 22 May 1838 |
| Date | 22 May 1838 |
| Court | Court of Common Pleas |
English Reports Citation: 132 E.R. 910
IN THE COURT OF COMMON PLEAS
S. C. 6 Scott, 1 See Attorney-General v. Kissane, 1893, 32 L. R. 1r. 23; Scott v. Scott, [1912] P. 288.
[574] (!n the house of lords.) william miller, esquire, and john malone, Appellants; and the very rev. edmond dalrymple hesketh knox, Respondent; in the cause of the said very rev. edmond dalrymple hesketh knox, Plaintiff; and john g-avan and others, Defendants. May 22, 1838. [S. C. 6 Scott, 1. See Attorney-General v. Kissane, 1893, 32 L. R. Ir. 233; Scott v. Scott, [1912] P. 288.] The persons named in a writ of rebellion, and charged with the execution of it, have a right, at their discretion, to require the assistance of any of the liege subjects of the Crown to assist in the execution of the writ:-And that, upon reasonable apprehension of resistance, no resistance having taken place:-And, as against persons appointed and acting as constables in Ireland, under 3 G. 4, c. 103 :-Notwithstanding regulations made under that act prohibit such constables from interfering in the execution of any writ, decree, or civil order, or in driving for rent, tithes, or taxes, unless called out by a magistrate, or the high or sub-sheriff in person:-And a stranger to the proceedings in the cause, called upon to assist in the execution of the writ, and declining to do so, is liable to an attachment for contempt: Littledale J. and Bosanquet J., dissentientibus as to the attachment. This was an appeal against an order of his Majesty's Court of Exchequer in Ireland, made on Monday, the 1st of February 1836, whereby the said Court disallowed the cause shewn by the Appellant John Malone, and made the conditional order of the 11th of January then last, absolute, and ordered that an attachment should be awarded against him for his contempt, stated in the affidavit of Robert Dudley, in refusing to aid and assist said Robert Dudley, one of the commissioners named in the Commission of Rebellion, in the above-named cause; and that an attachment should also be awarded against the Appellant William Miller for his contempt, stated in the affidavit of said Robert Dudley; the attachments thereby awarded not to issue, and each party to abide his own costs of the motion. [575] From the affidavit above mentioned, and others, it appeared that, on or about the 6th of March 1835, a bill was filed in his Majesty's Court of Exchequer in Ireland by the above-named Respondent, as rector and vicar of the parish of Eglish, in the diocese of Killaloe and county of Tipperary, claiming to be entitled to composition in lieu of the rectorial and vicarial tithes of the said parish, against the above-named Defendants, as occupiers of lands, and liable to the payment of composition in lieu of tithes, in respect of the same; and the said bill prayed that an account might be taken, under the decree of the Court, of all sums due to the above-named Respondent, as such rector and vicar, for or on account of such tithe composition, which accrued due on the 1st of November 1834, and payable out of the lands within the said parish by the above-named Defendants, as occupiers, or having such interest 4 BING. (N. C.) 576. MILLER U. KNOX 911 therein as to make them liable; and that they might be respectively decreed to pay such sums as should appear on the taking of the account to be due, and might be decreed to pay the costs. On the 18th of April 1835, the above named Defendant John Gavan, and several other Defendants, put in their appearance by attorney. The Appellant William Miller was at the times above mentioned, and is now, by virtue of the appointment of the Lord-Lieutenant of Ireland, the general superintendent and inspector, for the province of Munster, of the chief and other constables appointed under the provisions of the act of parliament passed in the third year of the reign of his late Majesty G-eorge IV., intituled "An Act for the appointment of constables; to secure the effectual performance of the duties of their office; and for the appointment of magistrates in Ireland in certain cases ;" and he was directed to reside in the province of Munster, and to take under his super-[576]-intendence the police appointed under the said act in the counties of Cork, Kerry, Limerick, Tipperary, and Waterford. The Appellant John Malone was and is a chief constable, by virtue of a like appointment under the provisions of the said act. Various rules, orders, and regulations, were made and approved by the Lord-Lieutenant of Ireland, for the conduct and proceeding of the chief and other constables appointed under tji.e said act, and were promulgated before and in the year 1833, and the conduct of fihe said chief and other constables has been regulated accordingly. Among these rules is the following :-" The men will on no account interfere in the execution of any writ, decree, or civil order, or in driving for rent, tithes, or taxes, unless called out by a magistrate or the high or sub-sheriff in person; and they will then only consider it their duty to protect those persons in the execution of their office, excepting in the execution of any process directed to them for levying the amount of any recognisance forfeited to his Majesty, his heirs and successors, or of any fines imposed on jurors, witnesses, parties, or persons at any assizes, or commission of oyer and terminer, or gaol delivery, or session of the peace, in the county in and for which such constables shall be appointed, pursuant to the act 3 G. 4, c. 103, s. 7. Constables are not to be employed in revenue duty unless when specially ordered." Circulars were also issued, by order of the Lord-Lieutenant, for the guidance of the police establishment, on or about the 26th of October, 14th of November, and 7th of December 1835, and communicated to the Appellants at those times. Before and on the 23d of December 1835, the Appellant John Malone was stationed at Borrisokane, in the county of Tipperary, and had under his superintendence the barony of Lower Ormond, and was under [577] the command of the Appellant William Miller, who was stationed at Cork, upwards of eighty miles distant. On the said 23d of December, Robert Dudley, of Borrisokane, delivered to him at that place a copy of a writ of rebellion, purporting to be issued out of his Majesty's Court of Exchequer in Ireland, and to be directed to Eobert Dudley and three others, dated the 4th of December, in the fourth year of the reign of his Majesty, and returnable on Saturday the 9th of January, then next. At the same time he delivered to the Appellant Malone a notice in writing, by which the said Eobert Dudley required him, pursuant to the tenor of the said writ, to accompany the said Eobert Dudley, and be aiding and assisting in the execution thereof; or, in default of his so doing, an application would be made to the Court of Exchequer for an attachment against him for his contempt. Upon delivering the said copy and notice, the said Eobert Dudley asked the said Malone to accompany him with the police to the parish of Eglish, to assist him in executing the said writ: to which Malone replied, that he could not go upon the said duty, but would apply to the inspector-general for instructions; he could do nothing without an order from the proper authorities; and, observing that the writ named only King's county, informed Dudley that he had no connexion with that county. On the 3d of January 1836, Dudley came to Malone, and acquainted him that he had taken John Gavan, and proposed removing him to Dublin on the following day; and he required Malone to give his aid, and that of some of the police under his command, in escorting him (Dudley) and the prisoner part of the way to Eoscrea: Malone declined to do this, but told him that if any person should attempt to molest him in the execution of the said writ, in the town of Borrisokane, he (Malone) would prevent him from being [578] ill-treated; but, with respect to the said Gavan, it was impossible for him (Malone) to lend him any assistance in escorting him to Eoscrea ; 912 MILLER V. KNOX 4 BING. (N. C.) 579. and assigned for a reason (as the fact was) that he was under three several recognizances to appear at the sessions at Nenagh, and prosecute, at the said sessions, five persons for riots and assaults; and also, that he had no opportunity of consulting with the inspector-general as to giving an escort. In refusing his aid in the manner above stated, the Appellant Malone acted in conformity to a communication received by him from the Appellant Miller, to whom he had transmitted the said copy of the writ and notice, and which communication the Appellant Miller made to him in pursuance of instructions from the Irish government, to the effect that the chief constable might decline compliance with the said notice. On the 13th of January 1836, both Appellants were served with an order of the said Court of Exchequer, purporting to be dated the llth of that month, and to be made at the instance of the said Eespondent, upon the affidavit of the said Robert Dudley, for an attachment against the said Malone for his- contempt, in refusing to aid the said Robert Dudley, unless cause should be shewn to the contrary; and that the Appellant William Miller should answer the matters of the said affidavit. The Appellants accordingly filed affidavits, disclosing the matters above stated, and shewed cause against the said order on the 29th and 30th days of January 1836; and the said Court, on the 1st of February, were pleased to make the order of that date as above stated. Upon an appeal from this order to the House of Lords, the case was argued by The Attorney and Solicitor-General for the Appellants, and by Jackson Serjt. and...
To continue reading
Request your trial
- Victoria v Australian Building Construction Employees' and Builders Labourers' Federation
- Thorne Rural District Council v Bunting (No. 2)
-
The Attorney-General v Kissane
...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 deleg......
-
Rose Peter v Mochon Peter
...of the Court …” This definition was given by Patterson J. in his judgement in the House of Lords in Miller v. Knox [1838] EngR 648; (1838) 4 Bing NC 574; 6 Scott 1; 132 ER, 910, who cited the definition given in the Practice Register (Chp. 8.), pp. 133 and This definition is repeated by man......