person endeavouring to pawn property which the pawnbroker reasonably suspects to have been stolen. Failure to give any satisfactory account of the way in which the property was acquired would be a reason for such suspicion. And a railway servant may arrest a passenger who fails to produce a ticket or pay his fare, if he also refuses to give his name and address. There is, too, statutory power to arrest any one making a disturbance in a church, chapel or churchyard.3

(c) A police constable has all the powers of a private person; he has also special powers vested in him by virtue of his office. His liability with regard to arrest is, therefore, considerably less than that of a private person. He may without a warrant arrest any one for a breach of the peace committed in his sight. So, too, he may make any arrest necessary to prevent a breach of the peace. And where upon probable suspicion or upon a reasonable charge made by a third person he believes that a felony has been committed, he may without a warrant arrest the person whom he believes to have committed such felony. For that purpose he is authorised (as upon a justice's warrant) to break open doors; it is said that he may even kill the felon, if he cannot otherwise ensure his capture." To render the arrest lawful, there must be reasonable ground for suspecting both that a felony had been committed and that the person arrested had committed it. Where he is suspected of having committed a misdemeanour only, a police constable has not, as a general rule, the same immunity, unless it is conferred upon him by special statute, such as the Protection of Animals Act, 1911, s. 12 (1), or the Criminal Law Amendment Act, 1912, s. 1.10 The fact that a constable knew that a warrant

1 35 & 36 Vict. c. 93, s. 34.

2 52 & 53 Vict. c. 57, s. 5.

8 23 & 24 Vict. c. 32, ss. 2, 3.

8

+ Griffin v. Coleman (1859), 4 H. & N. 265; R. v. Light (1857), Dearsl, & B. 332, 5 Hogg v. Ward (1858), 3 H. & N. 417.

64 Bla. Com. 292.

Beckwith v. Philby (1827), 6 B. & C. 635, 638; Hogg v. Ward, suprà. 8 Mathews v. Biddulph (1841), 4 Scott, N. R. 54; Bowditch v. Balchin (1850), 5

Exch. 378.

91 & 2 Geo. V. c. 27.

10 2 & 3 Geo. V. c. 20.

had been issued for the apprehension of the plaintiff has been held to be sufficient ground for reasonably suspecting that a felony had been committed.'

By statute it is his duty to arrest without a warrant all offenders whose names and residences cannot be obtained,2 and all persons loitering in any place during the night, whom he suspects of having committed or being about to commit felony. But where a particular statute authorises a constable to take into custody without a warrant any one offending against its provisions within his view, he must show that he actually saw the offence committed.*

3

With regard to arrests for misdemeanours, the police officer strictly ought to have the warrant with him at the time." But in practice the arrest is often made on a warrant known to be in existence, which is read to the prisoner as soon as the officer in whose possession it is can be fetched. A man, however, cannot legally be arrested for a breach of a county council by-law or for refusing to give his name and address, unless such power is expressly conferred by

statute.

The warrant of a Court of competent authority will protect any ministerial officer employed in executing its process. Where a Court has jurisdiction over a cause before it and in disposing of it proceeds erroneously, the party who takes steps to enforce the judgment will not be liable to an action; nor will any officer or servant of the Court who executes process under it. Where, however, the Court has no jurisdiction over the cause before it, the whole proceeding is bad, and any one who enforces the process of the Court therein will be liable to an action for false imprisonment; for he is presumed to know the law and therefore to be cognisant of the want of jurisdiction. Protection is, however, extended

1 Creagh v. Gamble (1888), 24 Ir. Ļ. R. 458.

22 & 3 Vict. c. 47, s. 63.

24 & 25 Vict. c. 96, s. 104.

8

Bowditch v. Balchin, suprà ; Trebeck v. Croudace, [1918] 1 K. B. 158.

Codd v. Cabe (1876), 1 Ex. D. 352.

See, for instance, s. 229 of the Metropolis Management Act, 1855 (18 & 19

Vict. c. 120); and the Parks Regulation Act, 1872 (35 & 36 Vict. c. 15), s. 8.

Andrews v. Marris (1841), 1 Q. B. 3; Thomas v. Hudson (1845), 14 M. & W. 353; Cobbett v. Hudson (1849), 13 Q. B. 497.

Carratt v. Morley (1841), 1 Q. B. 18.

B.C.L.

31

to constables who have acted under magisterial warrants issued without jurisdiction, and in some other cases.1

(d) A justice of the peace has a twofold power in relation to the arrest of felons. If he sees a felony or any breach of the peace being committed, he may, like any private individual, himself apprehend the felon; or he may command some one else to do so, and such a command is a good warrant without writing. But if the felony or other breach of the peace be committed in his absence, then he must issue his warrant in writing under his seal to apprehend the offender.

Where upon the complaint of another a justice of the peace acts judicially, using the discretionary power given him by statute, he will not be liable for a mere error of judgment; * and he is protected from liability in respect of "any act within his jurisdiction-" done by him in the execution of his duty as such justice," except where he is proved to have acted "maliciously and without reasonable and probable

cause." 3

Again, where the justice has acted in a matter within his jurisdiction, a conviction good upon the face of it will be a sufficient protection to him; for such conviction, so long as it remains in force, is conclusive evidence of the facts stated in it, and cannot be impugned or rebutted even by proof of corrupt motives or of malice. "It is a general rule and principle of law that, where justices of the peace have an authority given to them by an Act of Parliament, and they appear to have acted within the jurisdiction so given and to have done all that they are required by the Act to do in order to originate their jurisdiction, a conviction drawn up in due form and remaining in force is a protection in any action brought against them for the act so done."5

But "for any act done by a justice of the

1 24 Geo. II. c. 44, ss. 6 and 8.

peace in a matter

2 11 & 12 Vict. c. 44, s. 4; and see Linford v. Fitzroy (1849), 13 Q. B. 240. 3 lb. s. 1; and see Bott v. Ackroyd (1859), 28 L. J. M. C. 207; Sommerville v. Mirchouse (1860), 1 B. & S. 652. A justice of the peace is not liable for words spoken by him on the bench, during the hearing of a case over which he had jurisdiction, even though it be alleged that the words were spoken falsely and maliciously and without reasonable cause: Law v. Llewellyn, [1906] 1 K. B. 487. 4 Brittain v. Kinnaird (1819), 1 B. & B. 432.

5 Per Abbott, C. J., in Basten v. Crew (1825), 3 B. & C. at pp. 652, 653.

of which by law he has not jurisdiction, or in which he shall have exceeded his jurisdiction, any person injured thereby may maintain an action against any such justice;"1 and he need not allege or prove that the act complained of was done maliciously or without reasonable or probable cause." No action, however, can be brought for anything done under a conviction or order, where the magistrate has no jurisdiction or has exceeded it, until the conviction or order has been quashed; nor for anything done under a warrant to compel an appearance, followed by a conviction or order, until it has been quashed; nor for anything done under such warrant not followed by a conviction or order, or under a warrant for an alleged indictable offence, if a summons had been previously served and not obeyed.

The main distinction to be noted in regard to the remedy available against a magistrate who acts without jurisdiction, and that available against a magistrate who acts erroneously within his jurisdiction, is as follows:-" If the act of the magistrate is done without jurisdiction, it is a trespass; if within the jurisdiction, the action rests upon the corruptness of motive, and to establish this the act must be shown to be malicious." 3

No action, however, can be brought against a justice of the peace for "any act done in pursuance or execution or intended execution" of his office, "unless commenced within six months next after the act, neglect or default complained of." 4

(e) Lastly, it is possible that an action of false imprisonment may be brought against the judge of a Court of record. The judge of a superior Court can never be liable in an action of false imprisonment for an act done by him in his judicial capacity. Nor can those who carry out orders given by him in that capacity. The judge of an inferior Court is

1 11 & 12 Vict. c. 44, s. 2; and see Leary v. Patrick (1850), 15 Q. B. 266. 2 Pease v. Chaytor (1861), 1 B. & S. 658.

Per Erle, J., in Taylor v. Nesfield (1851), 3 E. & B. at p. 730. See also Newbould v. Coltman (1851), 6 Exch. 189; Gelen v. Hall (1857), 2 H. & N. 379.

The Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61), 2, 1; and see Haylock v. Sparke (1853), 1 E. & B. 471; Kirby v. Simpson (1854), 10 Exch. 358; Clayton v. Pontypridd U. D. C., [1918] í K. B. 219,

Anderson v. Gorrie, [1895] 1 Q. B. 668.

similarly immune from liability, unless the plaintiff can show that he acted beyond his jurisdiction, that is, that he had not then before him any suit or matter in relation to which he had authority to imprison or arrest.1 Even so he is not liable, unless it be proved by the plaintiff that he knew or had the means of knowing facts which would have shown him that he was exceeding his jurisdiction. But he will be liable if he so exceeds through a mistake, not of fact, but of law."

(f) A defence of a very different character arises in cases where the action is not brought against the person who actually arrested the plaintiff, but against his master or employer. Here the question at once arises, is the master or employer liable for the tortious act of his servant? He will not be liable, unless he had given his servant authority, express or implied, so to act. And no such authority will be implied, unless the arrest was reasonably necessary for the protection of his master's property. Further, a corporation cannot give its servants authority to do an act which it cannot legally do itself."

28.

1 Doswell v. Impey (1823), 1 B. & C. 169.

Pike v. Carter (1825), 3 Bing. 78; Calder v. Halkett (1840), 3 Moo. P. C. C. 3 Houlden

V.

Smith (1850), 14 Q. B. 841,

4 Abrahams v. Deakin, [1891] 1 Q. B. 516; Hanson v. Waller, [1901] 1 K. B.

390.

5 Goff v. G. N. Ry. Co. (1861), 3 E. & E. 672; Allen v. L. & S. W. Ry. Co. 870), L. R. 6 Q. B. 65; Ormiston v. G. W. Ry. Co., [1917][1 K. B. 598,