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the last assizes for the county of Stafford (a), the case was this :-On the 19th January, 1827, the plaintiff appeared before the defendant, an acting magistrate for the county of Stafford, to answer a charge made against him by one Dawson, for wilfully and maliciously shooting his dog. The defendant having heard the complaint, inquired of Dawson what he claimed as the value of his dog; to which the latter replied, that he would not take less than 51. The defendant proposed to the plaintiff to pay, and to Dawson to accept, 31., as a compensation for the loss of the dog ; and upon the plaintiff's refusing to pay that sum, told the latter that he should convict him in that sum, under the Malicious Trespass Act, in which case he would be committed to prison ; but at the same time again recommended the parties to settle the matter. The plaintiff replied that he would not pay, and that he would "carry the case elsewhere;" upon which the defendant called in a constable, and said to him, pointing to the plaintiff, " take this man out, and see whether they can agree to settle the matter, and if not, bring him in again, as I must proceed to convict him under the act.” The constable, the plaintiff, and Dawson, thereupon left the room together, and the plaintiff having shortly afterwards paid 31. for the dog, and some shillings for fees, was allowed to depart. No evidence was offered on the part of the defendant, but it was contended, that the action could not be maintained, inasmuch as no imprisonment had been proved; for that the mere fact of the defendant having called in a constable, and given him the directions he did, and of the plaintiff having left the room in com
(a) Counsel for the plaintiff, for the defendant, Russell, Serjt., Taunton, Campbell, and Richards; and Wheatley.
fendant then called in a constable, and said, “take this man out, and see if they can settle the matter; and if not, bring him in again, as I must proceed to commit him under the act.” Plaintiff then went out with the constable, and settled the matter, by paying a sum of money :-Held, that this was an assauli and false imprisonment, for which trespass would lie; and which, as no conviction had been drawn up, defendant could not justify.
pany with the constable, did not constitute a taking into custody of the plaintiff, so as to support the allegation of his having been assaulted and imprisoned. The learned Judge told the jury that, in his opinion, there was a sufficierit apprehension and restraint of the plaintiff's person to constitute 'an assault and imprisonment in law, and that the circumstances of the case did not furnish any justification to the defendant for having authorized that assault and imprisonment; and the jury, under that direction, found a verdict for the plaintiff.
Russell, Serjt., now moved for a new trial, upon the ground that the learned Judge had mis-directed the jury, in point of law. There was no assault or imprisonment proved, therefore the action was not maintainable ; and in that respect the direction of the learned Judge was wrong. There was nothing to shew that the constable said or did any thing indicative of an intention to take the plaintiff into custody: he neither charged him, as his prisoner, to go with him, nor laid so much as a finger upon his person : for all that appeared, the plaintiff accompanied the constable voluntarily, as Dawson did, merely as a referee or mediator, and not under any notion of compulsion or duress. [Lord Tenterden, C. J. But the defendant ordered the constable to take the plaintiff out, and, if the business was not settled, to bring him in again, as he must proceed to commit him. What jurisdiction had he to interfere at all in such a case ?] He had clearly jurisdiction under the Malicious Trespass Act (a). By that act the defendant had authority to convict the plaintiff of wilfully and maliciously killing the dog; and he did in effect convict him of that offence : and if so, the imprisonment of the plaintiff, even if proved, was justified, and in that respect the direction of the learned Judge was wrong. Again, if the plaintiff was not convicted, still the defendant had authority to detain him for the purpose of
(a) 1 Geo. 4, c. 56.
conviction; as he would have had to issue his warrant for his apprehension, if he had not appeared to answer the charge. This is clear upon all the authorities. In Hawkins' P.C. (a), it is said, “ wherever a statute gives to any one justice of the peace a jurisdiction over any offence, or a power to require any person to do a certain thing ordained by such statute, it impliedly gives a power to every such justice to make out a warrant to bring before him any person accused of such offence, or compellable to do the thing ordained by such statute.” So, in Bane v. Me. thuen (b), a very recent case, it was decided, that if an act of parliament gave a justice of the peace jurisdiction over an offence, it impliedly empowers him to make out a warrant, and bring before him any person charged with such offence. Where, therefore, a party neglected to attend a summons granted by a magistrate, charged with an offence under the Malicious Trespass Act, 1 Geo. 4, č. 56, it was held, that he might issue his warrant to apprehend and bring such party before him, to answer the charge, although it was insisted that he had no power to do so until after conviction (c). The strong argument in the present case, however, is, that the plaintiff was convicted ; and it was not necessary for the defendant, in support of that position, to produce the conviction, drawn up, at the trial, for a conviction may be complete in operation of law, before the formal instrument, setting it out, is drawn up, Still v. Walls (d), which, indeed, it is allowed, may be drawn up at any time, before the return to a certiorari or the sessions, though after a commitment, Massey v. Johnson (e), or after the penalty has been levied by distress ; Rer v. Barker, (f).
Lord TeNTERDEN, C. J.-I do not see any ground for
(a) Book ii., c. 13, s. 15.
(6) 9 J.B. Moore, 161, 2 Bingh. 63, 3 D. & R., M. C. 533, S.C.
(c) And see 12 Co. Rep. 131.
(d) 7 East, 533.
(f) 1 East, 82; Paley on Convictions, 2d edit., by Dowling, 55.
disturbing the verdict in this case. The direction of the learned Judge to the jury was, in my opinion, perfectly correct. I think there was abundant evidence of an imprisonment of the plaintiff, by the order of the defendant, and there is nothing in the circumstances of the case, which, in my judgment, furnishes a justification of that imprisonment. What are the circumstances of the case ? The plaintiff appears before the defendant, who is a magistrate, to answer the complaint of Dawson, of having unlawfully killed his dog. The defendant proposes to the parties to arrange the matter upon amicable terms. The plaintiff rejects that proposal, upon which the defendant tells him, that unless he pays a certain sum of money, he shall convict him in a penalty of that amount, under an act of parliament, in which case he will be committed to prison. The plaintiff still rejects the proposal, and declares that he will carry the case elsewhere; that is, that he will appeal from the defendant's jurisdiction to a higher tribunal. Upon that the defendant calls in a constable, whom he orders to take the plaintiff out, and if the parties cannot settle the matter, to bring him in again, as he must proceed to commit him under the act. The plaintiff accordingly goes out with the constable(a), and while they
(a) “If the constable, in conse- N. P. C. 431 ; and see Pocock v. quence of the defendant's charge, Moore, 1 R. & M. 321. In Arrowhad for one moment taken posses- smith v. Le Mesurier, 2 N. R. 211, sion of the plaintiff's person, it. the case was this: a warrant, having would be, in point of law, an im- been granted by a magistrate, for prisonment; as, for example, if apprehending the plaintiff upon a he had tapped her on the shoulder, charge of conspiracy to sue out a and said, “ You are my prisoner," fraudulent commission of bankor if she had submitted herself into rupt, a constable went to the plainhis custody, such would be an im- tiff's house, and sbewed him the prisonment; but the merely gir- warrant. The plaintiff desired to ing her in charge, without any have a copy of the warrant, which taking possession of the person, the constable permitted him to where nothing more passes than take; after which the plaintiff atmerely the charge, is not, by law, tended the constable to the magisa false imprisonment.” Per Eyre, trate, and, after being examined C. J., in Simpson v. Hill, 1 Esp. upon the subject of the charge, was
are absent the affair is settled, by the plaintiff's paying a sum of money. It seems to me impossible to doubt that the plaintiff went out on that occasion in custody, having been ordered into that custody by the defendant; and if so, there'is, in the eye of the law, an assault and false imprisonment by the defendant upon the person of the plaintiff. Then what is the justification? It is said that the plaintiff was convicted, and therefore that his detention was legal. What evidence is there of his conviction ? No conviction was produced at the trial, or is laid before us now ; indeed, it is admitted, that none has ever been drawn up: then how can we possibly say that the party was convicted (a)? The final arrangement of the matter by the parties, in an amicable way, might properly prevent the defendant from acting upon the conviction, if there had been one; but it did not prevent his drawing it up as a justification of his own conduct in the transaction; and not having done so, he is without justification, and must abide the consequences.
The other Judges concurred.
dismissed. A verdict having been justice of the peace, shall come found for the defendant, the Court unto the party, and require, or refused to grant a rule for a new charge or command him to go betrial, saying, that “ an arrest may fore the justice, &c., this is no take place without an actual touch, arrest or imprisonment.” In Genas if a man be locked up in a room ; ner v. Sparkes, 1 Salk. 79, the but here the plaintiff went volun- marginal note, which has been tarily before the magistrate. The transcribed by subsequent text warrant was made no other use of
writers, is, that “no arrest can be than a summons. The constable without actually touching the debrought a warrant, but did not fendant;" but in that case the dearrest the plaintiff. How can a fendant never submitted to the man's walking freely to a magis. officer, but kept him off with a trate prove him to be arrested ?" fork. And see Breton v. BurSo in Dalton's Justice, cap. 170, ridge, 3 Campb. 139. (p. 466, ed. 1677), it is said, “If (a) See Rodgers v. Jones, 5 D. the constable, or other officer, & R. 268, 3 B. & C. 409, 1 R. & upon a warrant received from a
M. 129, S.C.; Bro. Trespass,177.