in my opinion, its provisions are to be read as cumulative with the M. T. 1859. provisions of the Acts of G. 3. LEFROY, C. J. I have authority from my Brother PERRIN to say that he concurs Queen's Bench. MAHONY บ. WRIGHT. in the judgment of the Court. Demurrer overruled. GOWING v. WALSH. Nov. 15. that To an action de for assault and false imprison ment on a false charge, the defendant ACTION for assault and false imprisonment.-First count; the defendant assaulted plaintiff, &c., and imprisoned and tained plaintiff in custody, to wit, for half-an-hour, contrary to law, and under a false assertion and charge, that the plaintiff pleaded, by had committed some offence punishable by law, whereby plaintiff cation, that an way of justifiwas injured, &c. Second count; that defendant, on the day and year aforesaid, gave, at the place aforesaid, the plaintiff into custody of two policemen, and unlawfully caused him then to be arrested by two policemen, and unlawfully ordered and caused them application, by the plaintiff in the present action, for compensation for a malicious burning, had been refused at a Presentment Sessions held at the Courthouse of P., of which Presentment Sessions to search his person, against his will, under a false charge made by the defendant, that the plaintiff had committed some offence punishable by law, to the plaintiff's damage, &c. The fifth count complained that the defendant again unlawfully gave the plaintiff into the defendant, the custody of a policeman, and caused him to be detained in before whom informations (pursuant to the 6 & 7 W. 4, c. 116, s. 137) had been sworn by the plaintiff at Petty Sessions, was Chairman; that the plaintiff, after the refusal of the application, was allowed to make copies from the informations, having been first cautioned not to take away the informations; but that, during the temporary absence of the Chairman, in discharge of his duty, the plaintiff was about to leave the Courthouse, with the informations in his pocket, when the Chairman, who had then returned to Court, in order to prevent the plaintiff from abstracting the informations, directed a constable, in whose view the whole proceeding had occurred, to take the informations from the plaintiff; that the constable did accordingly detain the plaintiff, and take the informations from him, and that in so doing no unnecessary violence was used, which was the assault and false imprisonment complained of.Held, overruling a demurrer to the defence, that the above justification was a good answer to the action. Queen's Bench. M. T. 1859. custody. The sixth count was to the same effect as the fifth count, but alleged, further, that the policeman acted under the orders of the defendant as a Justice of the Peace, and in the presence of the defendant. GOWING v. WALSH. The defence to the above counts, after averring that the alleged grievances related to one and the same cause of action, and not to other or different causes of action, justified under the provisions of the 12 Vic., c. 16, and stated that, at and just before the time in the said counts mentioned, the defendant was a Justice for the King's County, and on, &c., a Special Presentment Sessions was being holden in the public Court-house of Philipstown, in the King's County, under the provisions of the Act of the 6 & 7 W. 4, c. 116, at which Presentment Sessions the defendant, acting in the execution of his duty, and in his character of a Justice of the Peace for the said county, was presiding as Chairman; and that while the defendant was so presiding as such Chairman, in the said Courthouse, the plaintiff brought forward an application for compensation for a malicious burning of his house, under the 135th section of the said statute; and the plaintiff, for the purpose of supporting his application, then and there relied on an information on oath of the plaintiff, and an information on oath of C. L., both of which informations had been previously taken before the defendant, as a Justice of the Peace, at the Petty Sessions of, &c., on, &c., pursuant to the provisions of the said Act of Parliament; and thereby the said informants bound themselves, when called on, to prosecute the said informations, otherwise to forfeit to the Crown the sums of money therein respectively mentioned; that the application was then and there entertained by, and argued before, and decided by, the defendant, who indorsed his opinion on the notice of application, and stated his reasons for disallowing the same; that immediately after the defendant has so expressed his opinion, the plaintiff began to collect (amongst other papers), with the intent of carrying away the same, the said two informations, and that the Secretary of the Grand Jury, having insisted that the plaintiff was not entitled to take away or have the custody of the said informations, the plaintiff's right thereto was discussed in open Court, without objection by the plaintiff, and the defendant decided that the plaintiff was not entitled to take away or have the custody of said informations; but had a right to take copies thereof, which the plaintiff then requested and obtained permission to do; that, after the plaintiff had been permitted to have the informations in open Court, for the purpose of taking copies thereof, and while he was copying the same, the defendant, in the execution of his duty, accompanied the County Surveyor to inspect another part of the Court-house, whereupon the plaintiff, in the presence of the Secretary of the Grand Jury, and of the constable who had been on duty in Court during the previous proceedings, declared that he would keep the informations, put them into his pocket, and was proceeding to leave the Courthouse; that defendant positively refused, on the request of the plaintiff, to give up the informations, and was in the act of walking out of the Court-house with them in his pocket, when the defendant, in order to prevent the abstracting of the informations, and to compel the delivery of the same, directed the constable, in whose presence and view the informations had been abstracted, to detain the plaintiff in the Court-house, and to search him for the informations, and in so doing used no unnecessary violence, and did no unnecessary damage; quæ sunt eadem. Demurrer. Heron (with him Macdonogh), for the demurrer. The defence admits the averment in the plaint, that the defendant caused the plaintiff to be arrested on a false charge, but does not justify that arrest in law. A Magistrate can only authorise an arrest, first, by way of safe custody to answer an offence known to the law; NOTE.-The following points were noted for demurrer :-First. That the defence offers no answer in law. Secondly. That the defence offers no justification to an action for false imprisonment. Thirdly. That the defence does not aver that the plaintiff had committed an indictable offence. Fourthly. That the defence does not aver that the defendant caused the plaintiff to be arrested, for the purpose of bringing plaintiff to justice. Fifthly. That the defence justifies the arrest and false imprisonment, by averring that the defendant caused the plaintiff to be arrested, for the purpose of taking documents from the possession of the plaintiff. Sixthly. That the defendant does not aver that he acted on any information, in writing or otherwise. Seventhly. That no legal purpose is averred to justify the arrest of the plaintiff. M. T. 1859. GOWING v. WALSH. GOWING 2. WALSH. M. T. 1859. secondly, if he commit for an execution; and, thirdly, if he commit Queen's Bench. for contempt: Burns' Just., 29th ed., tit. Commitment I. The plaintiff in the present case had not committed any offence known to the law, and neither the Magistrate's suspicion of the plaintiff's intention, nor his belief that he was acting in discharge of his duty, can justify the arrest: Rex v. Wilkes (a). There was no conviction, warrant, information or complaint in the present case to authorise an arrest: Rex v. Birnie (b).—[LEFROY, C. J. The question is, was the plaintiff entitled to take away the informations? and if not, was the defendant justified in causing him to be arrested, and in having the papers taken from him, no more force being used than was necessary for that purpose?]-The defence does not justify on the ground that the plaintiff was stealing documents in a Court of Record. A Presentment Sessions is not a Court of Record; and whether the act of the plaintiff was a proper one or not, the Magistrate had no jurisdiction over the plaintiff's person, and is only justified when acting legally: Caudle v. Seymour (c).—[PERRIN, J. It would be monstrous to hold that any person could carry off the documents on which the Presentment Sessions is to decide.] R. S. Foley (with him J. T. Ball), in support of the defence. The documents in question were sworn informations taken at Petty Sessions, pursuant to the 6 & 7 W. 4, c. 116, s. 137, which the Clerk of Petty Sessions is in no case to allow out of his possession: 14 & 15 Vic., c. 93, s. 10, par. 4. If the plaintiff had made a false information he would have been guilty of perjury: 6 & 7 W. 4, c. 116, s. 172. The informations, therefore, were records; and by the 9 G. 4, c. 55, s. 21, the fraudulent taking away of records, including depositions and affidavits, is made a misdemeanour, punishable by transportation; and whilst a misdemeanour continues, or there is a reasonable apprehension of its renewal, even a private person may arrest: Price v. Seeley (d); 1 Burns' Just., 29th ed., (a) 2 Wils. 151, 158. (c) 1 Q. B. 889. (b) 1 Moo. & Rob. 160. • NOTE. This statute, so far as it relates to the summary jurisdiction of Justices of the Peace, is repealed by the 14 & 15 Vic., c. 92, s. 26. tit. Arrest II, p. 268, citing Hawkins & Hale's P. C.; Com. Dig., tit. Pleader; 2 Inst., p. 52. The fact of the plaintiff mixing the informations with his own papers, and carrying them all off together, makes no difference: 1 Hale P. C., p. 513; 2 East. P. C., p. 659. The demurrer admits the positive refusal by the plaintiff to give up the informations when requested by the defendant to do so, and also admits that no greater force was used than was necessary: Rex v. Milton (a). The constable who made the arrest saw the whole proceeding from beginning to end, and the defendant, therefore, was justified in directing the constable to arrest the plaintiff: Derecourt v. Corbishley (b); Spilsbury v. Micklethwaite (c). Macdonogh, in reply. The defendant was a known person, and if a charge of misdemeanour was to be made against him, it must have been on informa-> tion: Atkinson v. Carty (d). The defendant did not see the alleged taking away of the informations; but ordered the defendant to be arrested on a mere statement, not upon oath. In Derecourt v. Corbishley, a breach of the peace had been committed in the presence of the policeman. There is no precedent to be found for this defence. [PERRIN, J. Do you contend that there was no right to take the informations away from the plaintiff, if he was carrying them off, and to detain him for that purpose?]-If that were the defence, the pleading is erroneous, the defence ought to have denied the imprisonment, and justified the assault. LEFROY, C. J. We have no sort of doubt in this case; and if there were no precedent we ought to make one, for I do not know how the law is to be administered if this demurrer were to be allowed. What are the facts of the case? A Presentment Sessions is constituted for administering an important part of the law. An application is made to the Sessions, by the plaintiff, who had suffered an injury for (a) Moo. & Mal. 107. (b) 5 El. & Bl. 188; S. C., 24 L. J., Q. B., 313; 1 Jur., N. S., 870. M. T. 1859. GOWING 8. WALSH. (c) 1 Taunt. 146. (d) 1 Jebb & Sy. 369. |