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for the appearance of the plaintiff on the 3rd of August. Upon the 3rd, from press of business, the recognizance was enlarged, and the case adjourned to the 6th, when it was inquired into, and the depositions of the two witnesses were re-taken and re-sworn, and the plaintiff was held to bail, to appear on the 23rd of August, at the Sessions for the Central Criminal Court, to answer any indictment for perjury. The plaintiff attended accordingly, and upon the 30th of August, a bill having been presented to the grand jury, it was ignored. Upon the 30th of October, the defendant was served with the following notice of action:-"To William Grove, Esq. one of Her Majesty's Justices of the Peace, in and at the several police offices established in the metropolis. You having on the 27th day of July last, as one of Her Majesty's Justices of the Peace, in and at the several police offices established in the metropolis, sitting on that day at the Police Court in Greenwich, in the county of Kent, within the Metropolitan Police district, caused one Benjamin Haseldine, of &c., to be unlawfully apprehended, and committed to prison there, and to be there imprisoned and kept and detained in prison there, without any reasonable or probable cause whatever, for a long space of time, to wit, three hours then next following, and until he gave bail before you for his appearance again on the 4th of August last, until which day you then and there remanded the said B. H, and you having then and there unlawfully holden the said B. H. to bail, as aforesaid, and you having on the 6th day of August last (until which day you had before then adjourned the time of the said remand,) as such Justice of the Peace, sitting on that day, at the same Police Court, again caused the said B. H. to be unlawfully apprehended, and committed to prison there, and to be there imprisoned, and kept and detained in prison there, without any reasonable or probable cause whatsoever, for a long space of time, to wit, six hours, then next following, and until he, B. H, gave bail before you to appear to an indictment to be preferred against him, at the Central Criminal Court. And you having then unlawfully holden the said B. H. to bail as last aforesaid, and, by force of such last-mentioned bail, having unlawfully forced and compelled the said B. H. to appear at
the Central Criminal Court, on or about the 23rd day of August last, and from thence until on or about the 30th day of August last, when an indictment preferred against the said B. H. was returned no true bill, and, therefore, the recognizances of the bail were discharged, &c. I do, therefore, on behalf of B. H, an infant under twenty-one, according to the form of the statute, &c. give you notice, that I shall at or soon after the expiration of one calendar month from the time of your being served with this notice, cause a writ of summons to be issued out of the Queen's Bench, at the suit of B. H, for the said imprisonments, &c. Dated, 30th of October 1841.”
The writ was issued on the 22nd of December 1841, which was more than three, but less than six, months after the alleged trespass complained of, and the venue in the declaration was laid in Kent.
The counsel for the defendant contended, that he, having been appointed under the Police Act, 2 & 3 Vict. c. 71. s. 2, was entitled to the protection of that statute as to the limitation of actions, which required that the action should be commenced within three calendar months next after the act committed, and should be brought in Middlesex; and that the action was therefore too late, and the plaintiff must be nonsuited. The learned Judge was of that opinion, and directed a nonsuit to be entered. The learned Judge was not asked on the part of the plaintiff to submit any question to the jury, as to whether the defendant had, or had not, acted bona fide. A rule having been obtained to set aside the nonsuit, and for a new trial,
Thesiger and Bodkin shewed cause (November 23rd).· This action having been brought more than three months after the alleged trespass, and the venue having been laid in the county where it was alleged to have taken place, the nonsuit was right. The defendant was a Magistrate, appointed under the 2 & 3 Vict. c. 71, which is the act for regulating the Police Courts in the metropolis, and under which Her Majesty appoints Magistrates to those courts. The defendant was acting under that act, as indeed the notice of action states, and therefore in any action against him as a Magistrate, the provisions of that act, with
regard to the venue and the limitation of actions must be observed. Those provisions are contained in section 53 (1). It may be, that, if the defendant had been acting as an ordinary Justice of the Peace on this occasion, the commencement of the action would have been in time, as the provisions of similar clauses as to notice to Justices, in other statutes, would have been complied with: 21 James 1. c. 12; 24 Geo. 2. c. 44. s. 8; 10 Geo. 4. c. 44. s. 41. The act 2 & 3 Vict. c. 71. is an amending act, and by section 55. it enacts, that together with that act shall be construed 10 Geo. 4. c. 44, and 2 & 3 Vict. c. 47, both of which were acts for improving the police near the metropolis. The provisions of the act of Victoria, c. 71, therefore, must be followed as to the limitation of actions, inasmuch as it is the last enactment The King v. the Justices of Middlesex (2). But it will be said, that the defendant was entitled to no statutory protection at all, as he had no jurisdiction to interfere at all, or take bail for the appearance of the plaintiff, in a case of perjury. A passage in 2 Hawk. c. 8. s. 38, was cited on this point, where it is stated: "Yet it hath been of late settled, that Justices of the Peace have no jurisdiction over forgery or perjury at the common law," and then the learned author states some reasons for this restriction. But that chapter has relation wholly to the power of Justices in their court of sessions, and a distinction runs throughout as to the offences which they
(1) Sec. 53, "And be it enacted, That no action, &c. shall be brought, commenced, or prosecuted, against any person for anything done, or omitted to be done, in pursuance of this act, or in the execution of the powers and authorities under this act, unless twenty days' previous notice in writing shall be given by the party intending to commence and prosecute such suit, information, or other proceeding, to the intended defendant, nor unless such action, &c. shall be brought or commenced within three calendar months next after the act committed, or in case there should be a continuation of damage, then within three calendar months next after the doing or committing such damage shall have ceased, or unless such action, &c. shall be laid and brought in the county of Middlesex."
(2) 2 B. & Ad. 818; s. c. 1 Law J. Rep. (N.S.) M.C. 5.
have power to try, and those upon which they may commit for trial. It is not contended, that Justices in Sessions may try for perjury The King v. Bainton (3), The Queen v. Yarrington (4). But a Justice of the Peace may commit for trial, or hold to bail for perjury, as well as for any other misdemeanour: 7 Geo. 4. c. 64. s. 3. By section 23. also, where parties have appeared in court to prosecute for perjury, having been bound to do so by recognizance, (which necessarily implies a power in Justices to commit for this offence,) the Court may order the costs of the prosecution. By the act also, 2 & 3 Vict. c. 71, under which the defendant was appointed, the power to deal with cases of perjury is recognized. Section 23. enacts, "That every person, who, upon any examination upon oath, before a Magistrate, acting at any one of the said courts, shall wilfully and corruptly give false evidence, or shall wilfully and corruptly swear anything which shall be false, shall be liable to the penalties of wilful and corrupt perjury." And by section 36, any one of the Magistrates, if he shall think fit, may remand any person for further examination, or may suffer to go at large any person who shall be charged before him, with any misdemeanour, upon his personal recognizance, which shall be conditioned for his appearance before the same or some other Magistrate for further examination, or to surrender himself to take his trial at the Central Criminal Court, or at a Court of General or Quarter Sessions, at a day and place to be therein mentioned. In this case the Justice acted upon his own view; but, it cannot be contended, that he had not equal power so to act in a case of misdemeanour, as where the party has been "taken before the Justice," as stated in section 3. of 7 Geo. 4. c. 64. Lastly, then, if the defendant had jurisdiction, as there was no evidence of malice, he was entitled to the statutory protection, even though his proceeding should have been ever so erroWeller v. Toke (5), Prestidge v. Woodman (6), Beechey v. Sides (7), Bal
(3) 2 Stra. 1088. (4) 1 Salk. 406. (5) 9 East, 364. (6) 1 B. & C. 12.
(7) 9 Ibid. 806; s. c. 8 Law J. Rep. K.B. 71.
linger v. Ferris (8), Cann v. Clipperton months after the act committed. If, however, (9).
Sir W. W. Follett, Platt, G. T. White and Montagu Chambers, contrà. - The defendant, acting upon his own suspicions that the plaintiff had committed perjury, detained him, and afterwards took bail for his appearance upon a subsequent day, and upon that day bound him in a recognizance to appear and take his trial at the Central Criminal Court. This detention was illegal, and the defendant could not suppose he was acting under section 36. of the 2 & 3 Vict. c. 71, as that section only enables a Magistrate to remand or allow a person to go at large, where he is "charged before him with a misdemeanour." There had been no information charging the plaintiff with any misdemeanour. Then, upon the second occasion, he is committed till he enters into a recognizance to appear at the Central Criminal Court. There was no charge of perjury against him then.
[COLERIDGE, J.-On the first occasion the witnesses to prove the perjury had left the court, and an entry was made, that the defendant had held the plaintiff to bail, on complaint that he had been guilty of perjury; on the second occasion, it appears, that the depositions which had been taken before, were then read over and resworn.]
The nonsuit however proceeded upon the ground, that the venue was wrong, and the action was not brought in time. Then, assuming that the defendant had power to commit for trial, in a case of perjury, the question will be, under what authority he was acting. He derived no authority as to this matter from the Police Act of the 2 & 3 Vict., but acted under the ordinary power vested in any Justice of any county. Where the act complained of is done by virtue of the general power as a Justice of the Peace, then the Justice is to have the protection given by the statutes of James and George the Second, which provide, that the action shall be in the county where the fact was done, and shall be commenced within six calendar
(8) 1 Mee. & Wels. 628; s.c.5 Law J. Rep. (N.S.) M.C. 133.
(9) 10 Ad. & El. 582; s. c. 8 Law J. Rep. (N.s.) Q.B. 268.
the Justice acts under the Police Acts, by an extraordinary power conferred upon him by them, then the clauses contained in them as to the venue and time of commencing the action, are to be observed. By section 23.
of the 2 & 3 Vict., a specific offence is created, which makes the party guilty of it liable to the penalties of wilful and corrupt perjury, but no power is given to commit, or to hold to bail, by that section, or any other in the act. Several additional powers are given by this act to the Magistrates of the Police Courts (as in sections 20, 21, 22, & 23,) which the Magistrates acting under the ordinary commission have not. Where the
action is brought for matters done under these additional powers, it may be, that section 53. as to limitation of actions must be observed; but the argument, on the other side, claims its observance in all cases, and thus would deprive the Magistrate of the protection of the 24 Geo. 2. Again, nothing in this case as to the bona fides of the defendant appears to have been left to the jury. It was for them to construe his acts-Cann v. Clipperton.
Thesiger. The plaintiff should have requested the learned Judge to put this to the jury, and he did not do so-Wedge v. Berkeley (10).
Cur. adv. vult.
LORD DENMAN, C.J.-This was an action against a Magistrate, for trespass and false imprisonment, in which a nonsuit passed, upon the ground, that the venue was wrong, and the action brought too late. Two questions were made upon the argument, first, whether the defendant is entitled to any statutory protection; secondly, whether, if so, the plaintiff had adopted the right time, and was right in the selection of the venue. It will be found more convenient to consider the latter point first.
The defendant is a Police Magistrate at Greenwich, appointed under the 2 & 3 Vict. c. 71. A person, the master of the plaintiff, had been brought before the defendant, upon a charge, under the Pawnbrokers' Act; two witnesses were examined in support of it,
(10) 6 Ad. & El. 667; s. c. 6 Law J. Rep. (N.S.) M.C. 86.
and the master proposed to call the plaintiff in his defence. The defendant, who appeared to entertain suspicion of the truth of the testimony about to be offered, cautioned the plaintiff, with some earnestness, before he gave his evidence, and of the consequences, if he should prevaricate or forswear himself; the evidence, however, was given, and appearing to be wholly unsatisfactory to the defendant, the plaintiff was removed to another room, while he considered the principal case, as to which, upon examination of the statute, he found he had no jurisdiction, and dismissed the complaint. The plaintiff was then called in, but the two witnesses having in the meantime departed, the plaintiff was told he would be committed, unless he found bail to appear on the 4th of August. The bail was immediately found, and he was discharged. On the 4th of August, the witnesses appeared, and the plaintiff; the charge of perjury was gone into, and the plaintiff committed to take his trial, at the Central Criminal Court. At the Sessions, the bill was preferred, and thrown out by the grand jury. The action was brought more than three but less than six months after either imprisonment, and the venue was laid in the county where the alleged trespass was committed. The defendant's counsel insisted that he was entitled to the protection of the 53rd section of the statute of Victoria, and that the venue therefore should have been in Middlesex, and the action brought within three calendar months. The Judge was of this opinion, and nonsuited the plaintiff. It is now insisted on, for the plaintiff, that the defendant, if entitled to any protection, was only entitled to that afforded by the 21 Jac. 1, as to the venue, and by the 24 Geo. 2, as to the time, and that the action was well brought in the county, and within six months. The question then is, was the action brought for anything done in pursuance of the 2 & 3 Vict., or in execution of the powers and authorities given by that statute? By the 3rd section, the Queen is empowered to appoint persons with certain qualifications, there specified, to be Magistrates of the said Police Courts, and any persons so appointed may act as a Justice of the Peace in and for the counties and liberties named, although they may not have the qualification by estate,
required of other Justices of the Peace. Before they act, they must take the oath required to be taken by Justices of the Peace, except the oath of qualification. By a subsequent section of the act, certain disabilities are imposed on them, which prevent them from exercising their functions in some cases, in which an ordinary Justice may act, and also powers more extended and a jurisdiction in many cases are conferred on them, which ordinary Justices have not. The plaintiff's counsel contended, therefore, that a Police Magistrate was entitled to have two kinds of protection, in respect of his twofold character; first, as a Justice of the Peace, with the ordinary powers, except those specially taken from him; and that, when acting "by virtue or reason of his office," to use the words of the statute of James, or, "in execution of his office," to use the words of the statute of Geo. 2, he was entitled to the protection of these statutes; but that he was, moreover, a Magistrate of the Police Court, and that, when as such he was exercising any branch of the special jurisdiction conferred on him by the statute of Victoria, he was then acting in pursuance of that act, or in execution of the powers or authorities under it, and so entitled to the protection of the 53rd section of that act. The defendant, in the present case, derived no special power from the statute of Victoria, according to his own case; he conceived the crime of perjury to have been committed before him, and had proceeded, as any ordinary Justice might, to the examination and committal of the person accused for trial. The distinction sought to be established appears to us to be highly inconvenient, not so much to the Magistrates, as to parties seeking redress against them for alleged injury. It may be often very difficult to ascertain which of the statutes a plaintiff must comply with, in his notice, venue, &c., if it is to depend on so nice a point, which can only be determined on full acquaintance with all the statutes. The words of the clause do not make it necessary. The Queen, acting upon the power given to her by the statute, appoints an individual under specific circumstances, a Magistrate of a Police Court. Both the officer and the court are the creation of the statute law. When so appointed, the statute invests him with the ordinary autho
rity of a Justice of the Peace, with certain restrictions. It appears to us, therefore, that when he is exercising the most ordinary jurisdiction of a Justice of the Peace, he is acting in execution of a power and authority conferred on him by the act, as much as a commission Justice doing the same thing would be acting in execution of a power and authority conferred by his commission. If so, it becomes necessary to consider the first question stated, namely, whether the defendant was entitled to any statutory protection; and it was admitted in the argument, that the 53rd section of the act must be construed on the same principle which has always been applied to the construction of the analogous clauses in the statute of James and George 2, before referred to, and other similar provisions in various statutes. That principle seems to be this, that when a Magistrate, with some colour of reason and bona fide, believes that he is acting in pursuance of his lawful authority, he is entitled to protection, although he may proceed illegally, or exceed his jurisdiction. Whether he acts with such colour of reason and bond fide, are questions for the jury, under all the circumstances, if the plaintiff desires the opinion of the jury to be taken upon them; although it is very common to submit them to the Judge first, as in the present case, upon the application for a nonsuit; and if the plaintiff, upon such application being made, does not desire the matter to be submitted to the jury, he must abide by the decision of the Judge, unless the Court think it not warranted by the evidence. In the present case, we think it abundantly warranted. In the first place, there was no evidence of malice of any sort. By the 23rd section of the act it is provided, that wilful and corrupt false evidence before a Police Court shall subject the party to the penalty of perjury. It could not be doubted that the Magistrate may receive examinations and take depositions on a charge of perjury, and hold to bail, and commit on such charge for perjury. It is true, that here no direct charge or information had been laid before the defendant, when he first caused the plaintiff to be removed into another room, and he may have exceeded his authority in so doing; but there is ample ground for believing that he thought he might himself institute the proceedings
when the offence had been committed in his presence; and we by no means mean to say, that he had not that authority. And all his subsequent conduct flowed from this. He was not bound to proceed with the case, if regularly before him, out of its order; he might well direct the party to be detained until the business before him was disposed of. At the end of half an hour he was about to proceed with it, but the witnesses were gone, and he then, not improperly, as still upon the supposition that the charge was regularly before him, calls on the plaintiff to find bail for his appearance at a future day. There was a fault in the commencement, which made the whole proceedings illegal; but the statutory protection supposes an illegality, so that there is no defence on the merits. For the reasons, however, which we have given, we think there was no illegality of such a palpable nature, and no such want of reasonable colour and bona fides, as to disentitle the defendant to notice and the other protections of the statute. This rule, therefore, for setting aside the nonsuit, must be discharged.