Chap. II. to say, between the hours of 9 P.M. and 6 A.M.), and bring them before a justice of the peace, to be dealt with according to law.

By the 23 & 24 Vict. c. 32, ss. 2 and 3, any person making a disturbance in a church, chapel, churchyard, or burial ground, or molesting any preacher duly authorized to preach therein, or any clergyman celebrating any sacrament or any divine service, rite, or office in any cathedral, church, or chapel, or in any churchyard or burial ground, may be immediately apprehended by any constable or churchwarden of the parish or place where the offence is committed and brought before a magistrate.

A clergyman collecting the offertory is not celebrating any "divine service, rite, or office" within the meaning of this Act, as the duty of collecting the offertory is a lay duty imposed by the rubric upon "the deacons, churchwardens, or other fit persons (of lower degree) appointed for that purpose" (e).

By the Merchant Shipping Act Amendment Act, 1862, 25 & 26 Vict. c. 37, s. 37, the master or other officer of any duly surveyed passenger steamer, and any person called by him to his assistance, may arrest persons whose name and address are unknown to such officer and who have committed certain offences which are specified in the Act (ƒ), and forthwith bring the offenders before a magistrate.

By the Railway Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 20, ss. 103, 104, the officers of a Railway Company are authorized to apprehend and detain any person travelling on their line without having paid his fare and with intent to avoid payment thereof. If by the mistake of a railway superintendent (g) or inspector (h) an innocent person is arrested, the company is liable to an action for false imprisonment.

A station-master is not acting within the scope of his authority under s. 103, when he gives a passenger in charge for non-payment of the price for the carriage of his horse which accompanied him, and no action for false imprisonment will lie against the railway company founded on the act of the station-master (i).

By s. 154, any officer of a railway company or any one called by him to his assistance, may arrest without warrant any person

(e) Cope v. Barber, L. R. 7 C. P. 393.
(f) See ss. 35, 36.

(g) Goff v. G. N. Rail. Co., 3 El. & El.
672, 30 L. J. Q. B, 148,

(h) Moore v. Metropolitan Rail. Co., L. R. 8 Q. B. 38.

(i) Poulton v. London & S. W. Rail, Co., L. R. 2 Q. B. 534.

committing an offence against the bye-laws of the company, pro- Chap. II. vided that the name and address of such person is unknown to

the officer.

All judges of a Court of Record (k) have power to commit to the custody of their officer, sedente curiâ, by oral command, without any warrant made at the time, and no action will lie against them on the ground that no warrant of commitment was issued (1).

contempt.

All judges of the High Court of Justice, as constituting a Committal for Superior Court of Record, have power to fine and imprison any person guilty of a contempt of Court. This power is not confined to a contempt committed in the face of the Court, but extends also to contempt committed out of Court, such as writing or speaking contemptuously of the Court or judges acting in their judicial capacity (m).

Blackstone, in his Commentaries, observing on this power of imprisonment for contempt, says: "The process of attachments for these and the like contempts must necessarily be as ancient as the laws themselves. For laws without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory. A power, therefore, in the Supreme Courts of Justice to suppress such contempts, by an immediate attachment of the offender, results from the first principles of judicial establishments, and must be inseparably attendant upon every superior tribunal. Accordingly we find it actually exercised, as early as the annals of our law extend" (n).

Inferior Courts of Record, such as a Court of Quarter Sessions and a County Court, have only power to imprison for a contempt committed in facie curiæ (o). By The County Court Act, 1846, 9 & 10 Vict. c. 95, s. 113, the judge may impose a fine not

(2) A Court of Record, according to Lord Holt, is a Court which has jurisdiction to fine and imprison conferred upon it by statute, Groenvell v. Burwell, 1 Ld. Raym. 454.

(1) Kemp v. Neville, 31 L. J. C. P. 158. Throgmorton v. Allen, 2 Rol. Abr. tit., "Trespass,' (c) part 2, p. 558; judgment of Parke, B., in Watson v. Bodell, 14 M. & W., at p. 70. The theory is that there is a legal record of such commitment, which record can be drawn up when necessary.

(m) Lechmere Charlton's case, 2 My. &

Cr. 316. See In re Wallace, L. R. 1 P.
C. 283; The Queen v. Castro, L. R. 9 Q.
B. 219.

(n) 4 Blackstone's Com., 404.

(0) The Queen v. Lefroy, L. R. 8 Q. B. 134. As to what amounts to a contempt of Court, see R. v. Faulkner, 2 C. M. & R. 525. In re Pollard, L. R. 2 P. C. 106. Ex parte Pater, 5 B. & S. 299, 33 L. J. (M. C.) 142. R. v. Clement, 4 B. & Ald. 218; Re Crawfurd, 13 Q. B. 613. Ex parte Fernandez, 30 L. J. C. P. 321. Mc Dermot v. Beaumont, L. R. 2 P. C. 341.

Chap. II. exceeding £5, or imprison for a term not exceeding 7 days, for any contempt committed in Court.

Imprisonment by order of judge.

As to limitation and notice given where action

brought against a justice.

Arrest under
Mutiny Act.

A trespass will not lie for a judicial act without jurisdiction, unless the judge has the means of knowing the defects of jurisdiction, and it lies on the plaintiff in every case to prove that fact. Thus a magistrate having jurisdiction over Asiatics in Bengal, but not over Europeans, was held not liable to an action for wrongful imprisonment of the plaintiff under a warrant issued by him, he not knowing plaintiff to be a European (q).

Where, however, a County Court judge issued a warrant of commitment against a person not within his jurisdiction, but whom he bona fide believed to be within it, not by any erroneous statement of facts made before him, but in misapprehension of the law, he was held liable for the wrongful imprisonment (r). The Clerk of a County Court is not liable to an action for false imprisonment for issuing a warrant under a bad order, as his office is only ministerial (s). Where a magistrate commits a person for re-examination for an unreasonable time he is liable for an action for wrongful imprisonment (t).

By 11 & 12 Vict. c. 44, s. 8. No action shall be brought against any justice for anything done by him in the execution of his office, unless the same be brought within six months after the act complained of has been committed; and by s. 9, one calendar month's notice in writing must be given him of such intended action. Such notice must be given even where there is malice or want of reasonable and probable cause on the part of the justice (u). Statutory protection is extended to constables and their assistants, from vexatious actions, by 7 Jac. 1, c. 5, and 21 Jac. 1, c. 12, s. 5, to special constables by 1 & 2 Wm. 4, c. 41, s. 19; to borough constables by the Municipal Corporations Act, 5 & 6 Wm. 4, c. 76, s. 113; to Metropolitan Police Magistrates by 2 & 3 Vict. c. 91, s. 55; and to persons acting in execution of the Metropolitan Act by 2 & 3 Vict. c. 47, s. 79.

Only Her Majesty's forces are subject to the Articles of War, and the Annual Mutiny Acts (v), and therefore if a civilian is

28.

(q) Calder v. Halket, 3 Moo. P. C.

(r) Houlden v. Smith, 14 Q. B. 841; 19 L. J. Q. B. 170.

(s) Dews v. Ryley, 11 C. B. 434; 20
L. J. C. P. 264.

(t) Davis v. Capper, 10 B. & C. 28.
(u) Kirby v. Simpson, 10 Ex. 358. By

s. 1 of 11 & 12 Vict. c. 44, the plaintiff in an action against a justice must prove that the act complained of was done maliciously and without reasonable and probable cause, otherwise the plaintiff shall be non-suited, or a verdict shall be given for the defendant.

(v) See e. g. The Mutiny Act, 1866, 28

arrested as a deserter, all persons concerned in making the arrest Chap. II. would be responsible for the wrong done (x).

bail.

A person who has given bail is always supposed to be in Arrest of princustody of his bail, and may be taken at any time, even while cipal by his attending as a witness in a court of justice in obedience to his subpoena (y).

By the common law of England, any one may arrest a Arrest of dangerous lunatic (z), and hand him over to the proper authorities to be taken care of, but the person arresting the lunatic may not keep him in permament confinement, unless he is justified in so doing under the Lunacy Acts.

The person arresting the lunatic, in order to justify himself, must show that he was a dangerous lunatic (a), and in an old case (b) it was held that a plea to an action of trespass alleging that a woman looked wild as a lunatic, was bad, and that it should have said she was a dangerous lunatic.

The detention of lunatics is now regulated by the Lunacy Acts (c), and unless the provisions of these Acts are strictly carried out, all persons concerned in the detention of the lunatic, will render themselves liable to an action for false imprisonment (d).

Where an alleged lunatic is detained under an irregular certificate, he will be discharged on a writ of habeas corpus, on the ground that the detention is unlawful, unless it be shown that it would be injurious to himself or others to set him at liberty (e).

Before the change in the law of arrest on mesne process, actions were frequently brought for maliciously holding a person to bail, but by the Debtors Act, 1869, 32 & 33 Vict. c. 62, arrest on mesne process is abolished. It is however enacted by s. 6 (f) of that Act, that where the plaintiff proves at any time before

& 29 Vict. c. 9, s. 2, where the persons subject to the Act are enumerated.

(x) See Wolton v. Gavin, 16 Q. B. 48. (y) Ex parte Lyne, 3 Stark. 132. Horn v. Swinford, D. & Ry. N. P. C. 20.

(z) Fletcher v. Fletcher, 28 L. J. Q. B. 134. Bro. Abr. tit. "Faux Imprisonment," pl. 28.

(a) Judgment of Wightman, J., in Fletcher v. Fletcher, supra.

(b) Cited in a note to Eliot v. Allen, 14 L. J. N. S. C. P. 136.

(e) 8 & 9 Vict. c. 100; 16 & 17 Vict. c. 96; 18 & 19 Vict. c. 105, s. 9; 25 &

26 Vict. cc. 86, 111.

(d) Anderson v. Burrows, 4 Car. & P. 210. See also Shuttleworth's Case, 9 Q. B. 651; and Minster's Case, 20 L. J. M. C. 48, which were decided under 8 & 9 Vict. c. 100. The statute now in force as to the giving of medical certificates, is 16 & 17 Vict. c. 96, ss. 4-13.

(e) Reg. v. Pinder, 24 L. J. Q. B. 148; Norris v. Seed, 3 Ex. 782; 18 L. J. Ex. 300.

(f) Substantially a re-enactment of 1 & 2 Vict. c. 110, ss. 1-10.

Malicious

arrest. Abuse

of civil process.

Chap. II.

Writ of ne exeat.

Arrest ca. sa. for larger amount than due.

final judgment by evidence on oath, to the satisfaction of the judge, that he has good cause of action against the defendant for an amount not less than £50, and that there is probable cause for believing that the defendant is about to quit England, and that the absence of the defendant from England will materially prejudice the defendant in the prosecution of his action, the judge may order the defendant to be arrested and imprisoned for a period not exceeding six months (g), unless he give security, not exceeding the amount claimed, that he will not go out of England except with leave of the Court.

Where an order of committal has been obtained on an affidavit, which did not truly set out the facts, the person making the affidavit will be liable for an action for procuring a malicious arrest (h).

It does not however follow that an action will lie at the suit of the person arrested, although the Court has subsequently discharged him from custody, on the ground that he had no intention of quitting England; the granting of the order is a judicial act (i), and provided that the affidavit states correctly the facts, the Court alone is responsible for the order made thereon (k).

In the case of Lees v. Patterson (k), the Court granted a writ of ne exeat against the defendant on the affidavit of the plaintiff. The defendant was arrested, but was discharged upon payment to the sheriff of the sum for which the writ was marked. In his statement of defence the defendant alleged that the writ had been improperly obtained, and claimed damages for his arrest, but the Court held that as the defendant had not moved to discharge the writ, it must be taken to have been properly issued, and consequently that he was not entitled to any damages.

In an action for maliciously arresting the plaintiff on a ca. sa. for a larger amount than was actually due, it was held not necessary that he should have obtained his discharge by an order of the Court before action, because the illegality of the arrest does not depend upon the result of any legal proceedings, but only on the amount for which execution might issue (1).

(g) A defendant cannot be kept in prison after final judgment is signed. Hume v. Druyff, L. R. 8 Ex. 214.

(h) Gibbons v. Allison, 3 C. B. 185; Ross v. Norman, 5 Ex. 359.

(i) Daniels v. Fielding, 10 M. & W. 207; Williams v. Smith, 14 C. B. N. S.

596.

(k) L. R. 7 Ch. D. 866.

(1) Gilding v. Eyre, 31 L. J. C. P. 174; 10 C. B. N. S. 592. Arrest on a ca. sa, is now abolished by 32 & 33 Vict. c. 62.