Calder v Halket
| Jurisdiction | UK Non-devolved |
| Judgment Date | 08 July 1840 |
| Date | 08 July 1840 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 12
ON APPEAL FROM THE SUPREME COURT OF JUDICATURE, AT FORT WILLIAM, IN BENGAL.
Mews' Dig. tit. India, 2. Jurisdiction and Courts; also tit. Justice of the Peace, G. Liability of to Action, 1; also tit. Public Officer, A. Judicial Capacity, 1. b. Liability to Action. S.C. 2 Moo. Ind. App. 293; 4 St. Tr. (N.S.), 481; and, below in Supreme Court of Calcutta, Morton, 179. On point as to scope of 21 Geo. III. c. 70, s. 24 (see now The Judicial Officers Protection Act 1850, Act xviii. Of 1850), see Sinclair v. Broughton, 1882, L.R. 9 Ind. App. 163, 172; and cf. Haggard v. Pelicier Freres (1892), A.C. 61. On the general question of judicial responsibility, see Gahan v. Lafitte, 1842, 3, Moo. P.C. 382; Spooner v. Juddow, 1848, 2960, 4 Moo. Ind. App. 353; Houlden v. smith, 1850, 14 Q.B. 841; Kemp v. Neville, 1861, 10 C.B. (N.S.), 523; Fray v. Blackburn, 1863, 3 B. and S. 576; Reg. v. Williams, 1866, 15 L.T. (N.S.), 290; Anderson v. Gorrie (1895), 1 Q.B. 668; Public Authorities Protection Act 1893 (56 and 57 Vict. c. 61); and s. 77 of Indian Penal Code (Act xlv. of 1860).
III MOORE, 28 CALDER V. HALKET [1839] was in effect refused, the Court being of opinion that if it could admit the appeal it had no power to require security for costs from the Crown. In July 1839 a petition was presented to Her Majesty in Council for leave to appeal against the Decree of the 4th February 1819. The Attorney-General (Sir John. Campbell) now moved for the admission of the appeal under the general power of the Crown to admit appeals notwithstanding the terms directed by the Charter had not been complied with (see Copy of Charter, Clarke's Colonial Law, 594-597). He stated the delay to have been occasioned by the necessity there had been of consulting the Government at home and the law-officers of the Crown upon the legality of the sentence and the expediency of the appeal. Lord Brougham.Their Lordships are all of opinion that this application is too late. It is not a question of the sufficiency [28] of the security offered in the Court below : of that, that Court would be the sole judge, Cambernom v. Egroignard (1 Knapp, P.C. Cases, 251), but whether, two years having elapsed without any proceedings being taken, the Crown shall now be let in to dispute a decision pronounced in 1819. There is no- greater right in the Crown, in a general case involving its interests, to come in after such a delay, than there would be in any ordinary subject. The question involved is certainly one of great importance, but it may be raised in another case: it is too late to re-open this. [Mews' Dig. tit. APPEAL, I. RIGHT TO GENERAL PRINCIPLES ; also tit. COLONY, III. APPEALS TO PRIVY COUNCIL, 1, 6 a ; also tit. CROWN, 1 ; LAW OFFICERS. 1. As to conditions of appeal to Privy Council from Mauritius, see Orders in Council of April 13, 1831, and Dec. 12, 1894 (Mauritius Laws Rev. I. 97 ; Stat. R. and 0. 1899, pp. 1693, 1701).] ON APPEAL FROM THE SUPREME COURT OF JUDICATURE, AT atedi27). I ;U:6 .8-C.6; FORT WILLIAM, IN BENGAL. JOHN CALDER,Appellant; ROBERT CRAIGIE HALKET,--Respondent. [Dec. 5, 1839 ; July 4, 8, 1840]. The 21st Geo. III., c. 70, s. 24, protecting Provincial Magistrates in India from actions for any wrong or injury done by them in the exercise of their Judicial Offices, does not confer unlimited protection, but places them on the same footing as those of English Courts of a similar jurisdiction, and only gives them an exemption from liability when acting bona fide in cases in which they have mistakenly acted without jurisdiction [3 Moo. P.C. 75]. Trespass will not lie against a Judge for acting judicially, but without jurisdiction, unless he knew, or had the means of knowing, of the defect of jurisdiction, and it lies upon the Plaintiff, in every such case, to prove that fact [3 Moo. P.C. 77, 78]. This was an action of Trespass, brought by the Appellant against the Respondent, in the Supreme Court [29] of Judicature, at Fort William, to recover damages for the arrest and false imprisonment of the Appellant, by the Respondent, in his character of Judge and Magistrate of the Foujdarry f Court of the Zillah of Nuddeah, in Bengal. The Appellant was the manager of a factory at Bayadangah, in the same Zillah, belonging to Mr. David Andrews. Both the Appellant and Respondent were * Present :Lord Brougham, Mr. Baron Parke, Mr. Justice Bosanquet, the Right Hon. Dr. Lushington. Criminal. [As to these Courts, see preamble to Bengal Reg. 9 of 1793; Respondent's Case in Printed Cases, p. 5, Morley's Dig. xxxiii.] 12 CALDER V. HALKET [1839] III MOORE, 30 European British-born subjects. The proceedings which gave rise to the imprisonment complained of, were as follows : On the 29th of July 1834, an affray took place in a village called Butt Boahleah, within the Zillah of Nuddeah. On the following day, the police Darogah of the adjoining Thanah (police station) of Hanskolly, within which the village of Boahleah is situate, reported the particulars of the riot to the Respondent, as acting Magistrate of the Foujdarry Court of the Zillah of Nuddeah, and transmitted the depositions of the wounded persons as well as of some of the witnesses of the affray. The Respondent, Mr. Halket, being of opinion that the Appellant was concerned in the riot, directed a Robocarree (or order of instructions for the mode of proceeding in the case) of the Foujdarry Court at Kishnaghur, to be made and passed, by which it was ordered, amongst other things, that a Perwannah should be written and directed to the Darogah, for the apprehension of Mr. Calder. The Robocarree was signed by the Respondent, and a Perwannah was accordingly issued on the same day, and delivered to the Darogah of the Thanah of Hanskolly. Under the authority of which, the Appel-[30]-lant was detained, and kept under surveillance of two Burhurdanzes (matchlock-men), within the boundaries of Mr. Andrews's factory. The Appellant was ultimately brought before Mr. Halket, the Respondent, as Acting Judge of the Foujdarry Court at Kishnaghur, and after some days' investigation, admitted to bail; and was eventually bound by recognizance, to appear when called upon. The greater part of the other prisoners charged with being concerned in the riot, were convicted, and sentenced to different periods of imprisonment: but no further proceedings were taken against Mr. Calder. Upon the 6th of March in the following year, 1835, Mr. Calder commenced an action of Trespass, in the Supreme Court at Calcutta, against Mr. Halket, for assault and false imprisonment. The Declaration contained three counts. The first alleged that the Respondent assaulted and imprisoned the Appellant for thirty-four days, at Bayadangah. The second, that the Respondent had laid hold of the Appellant, and compelled him to go from a house in. Bayadangah to a place called Poolia, and from Poolia back to Bayadangah, and then to Kishnaghur, and there imprisoned him for twenty-five days. And the third count alleged that the Respondent had assaulted and imprisoned the Appellant at Kishnaghur, for thirty-four days. The Respondent pleaded the general issue; and also six special pleas, justifying the said several arrests and imprisonments, as done by him as Magistrate of the district of Nuddeah, in the province of Bengal, and of the Criminal Court of the same district. [31] The Appellant joined issue upon the first plea, and replied de injuries to the six special pleas upon which issue was joined. The cause came on for trial before the Supreme Court, on the 23rd of July 1835, when several witnesses were examined on both sides, and a verdict was given for the plaintiff, on all the issues joined in the action, with damages to, the amount of five hundred sicca rupees, but with liberty for the Respondent to move that the verdict should be set aside, and a nonsWt, or verdict for the Respondent, entered instead thereof, upon three several points reserved, viz., lot, That there was no proof of the arrest of the Appellant by the Respondent's order ; 2ndly, That under the provisions of the Statutes 21st Geo. III., c. 70, sec. 24, and 53rd Geo. III., c. 155, sec. 105, and the Bengal regulations in force in the Presidency, the Respondent was not liable to the Supreme Court in an action for damages; the acts proved appearing in evidence to have been acts done by him as Magistrate of the Provincial Court of Kishnaghur; and 3rdly, that under the general issue a sufficient justification was proved. A rule nisi to that effect was granted on the 2nd of November. On the 24th of November 1835, the several points reserved were argued before the Supreme Court, who were of opinion, that the arrest having taken place under the seal of the Foujdarry Court, and the Appellant being a British-born subject, and not amenable to the jurisdiction of the Foujdarry Court of the Zillah, the Respondent had failed to support his special pleas. They were, however, of opinion, that under the general issue, the Respondent was entitled to avail [32] himself of the pro. 13 III MOORE, 33 CALDER V. HALKET [1839] tection of the 24th section of the Statute 21st Geo. III., c. 70, whiCh precluded the Supreme Court from holding jurisdiction in the action against the Respondent, and accordingly adjudged that the verdict should be entered for the Respondent on the general issue, with costs, and costs of motion. From this judgment the Appellant appealed to Her Majesty in Council. Mr. M. D. Hill, Q.C'., and Mr. C. Buller, for the Appellant.The judgment of the Supreme Court cannot stand; they admit the trespass, but say they have no jurisdiction to try the question, the Respondent having acted in his magisterial capacity, and not being amenable to. the Supreme Court. This is contrary to law, as well as against the true construction of the Acts 21st Geo. III., c. 70, and 53rd Geo. III., c. 155. The rule at law is, that if an...
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... ... The whole law on the liability of a Judge is to be found in Colder v. Halket (3 Moore's Privy Council Cases, 28), and in Taaffe v. Downes (3 Moore, P. C. C. 36, note (a)). Parke B., in delivering the judgment of the Judicial ... ...