Gore v Walpole
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1865 |
| Date | 01 January 1865 |
| Court | Court of the Queen's Bench |
English Reports Citation: 176 E.R. 751
IN THE QUEENS BENCH.
[fl94] Court of Queen's Bench, Westminster, Sittings in Middlesex, Hilary Term, 18G6, coram Cockburn, C J. gore v. walpole (In an action of tiespass, for causing the plamtift to l e remanded from Bethlehem to the Queen's Prison, whereby he was confined there for thiee years, a plea setting up the Statute of Limitations, and a special plea of justification, stating that he had been a prisoner for debt, and that, upon certificates duly given under the Queen's Prison Acts, the Secietaiy of State issued his warrant, under which he was conveyed to Bethlehem, and that afterwards, upon certificates that he had become of sound mind, the defendant duly issued his warrant in pursuance of the statutes, under which he was removed back to the Queen's Prison , issue being taken on the pleas : held, that the plaintiff could impeach the form of the warrant, and the regularity of the certificates ; but qucere, whether he could impeach them, on the ground that he was not in fact insane when sent to Bethlehem Seinble, that he could not; but, the plea being amended in order to enable him to do so held, that delusions, as to matters of fact, leading him to actual threats of violence, were sufficient to show that he was so far of unsound mind as to justify certificates for his restraint. Quaere, whether, assuming the defendant not to have been justified in issuing his warrant, he was liable for the subsequent imprisonment of the plaintiff under the original writ Semhle, that he was not Qucere, as to the statute ?) This was an action against the Right Honourable Spencer Walpole, for a matter which had arisen while he was Secretary of State for the Home Department, in April, 1858 The declaration stated that the defendant, in April, 1858, caused the plaintiff to be seized and compelled to go to the Queen'? Prison, and there and then to be imprisoned, to wit, for eight months, whereby he had been detained for three years, and had been discredited and disgraced Pleas: 1 Not guilty 2 The Statute of Limitations, that the alleged cause of aclion did not arise within four years. 3 A justification, setting forth that at the time of the matter now in question the defendant was one of Her Majesty's Principal Secretaries oi State for the Home Department, and that the plaintiff was then a prisoner confined in the Queen's Prison for debt, under a commitment for execution foj the non-payment of costs in an action at law That on the 26th of January, 1856, [6$5] one John Hudson, then being keeper of the prison, reported to Sir George Grey, then being Secretary of State for the Home Department, that the plaintiff was. of unsound mind, and that two physicians duly ceitified to Sir George Grey that he was so, whereupon, on the 4th of February, 1856, Sir George Giey duly issued his warrant for the removal of the plaintiff to Bethlehem Hospital, where he was accordingly removed and confined until afterwards, on the 23rd of April, 1858, it was duly certified to the defendant, then being Her Majesty's Secretary of State for the Home Department, by two physicians, Dr. Hood and Mr. Helps, that the plaintiff had become of sound mjnd, and the defendant, thereupon, on the 29th of April, 1858, duly, in pursuance of the statutes, issued his warrant that the plaintiff should be redehvered to the custody of the keeper of the Queen's Prison, for the purpose of being remanded to the Queen's (a) A jury have a right, it is generally eonsideied, to decline answering specific questions, and to give a general verdict. (b) Application to stay execution, with a view to move for misdirection as to the power of a schoolmaster. The Lord Chief Justice said his view of the law as he had laid ifc down on that head was so strong and clear that he did not think it light to reserve any question upon it. 752 GORE V. WALPOLE 4 F. & F. 896. Prison, and that the plaintiff accordingly upon such wan ant was so redehvered into the custody of the keeper of the Queen's Prison The plaintiff took issue on the pleas. Tie plaintiff appeared in person Sir E, Collier, S G . and Hannen appeared on the part of the defendant. The plaintiff, in opening his case, said he had been taken in execution in 1855 for costs of an action brought by him, and confined in the Queen's Prison. In 1856 he wa& he said, wrongfully certified to be of an unsound mind, and, under Sir George Grey's warrant, Hent to Bethlehem. He declared that he was as sane then as he waa now, and as sane now as he was then, and that he was not, therefore, " duly '' certified to be insane, because he was not truly so certified , because he was sane. He contended that he was not, in the words of the statute, [696] " duly " found to be of unsound mind, as reported to the Secretary of State (a) ; and he insisted that (a) The question, \vhat is involved in a traveibe ot an allegation that a thing " duly " done is often one of considerable difficulty It is part of a larger question as to the effect of a traverse containing matter of law It is well settled that an allegation containing matter of law mixed with fact may be traversed, as that a proceeding waa taken according to the form of a statute, or duly according to law (Dawes v Papworth, Willes, Rep. 468). As in the common averment that a, man was arrested, or goods seized " under and by virtue of a writ " (Lucas v Nockels, 10 Bmg. 157), which can be traversed. As, if the defendant duly issued his warrant, it was admitted that he would be justified under the statutes, and that the question of the Statute of Limitations would not anae ; and as, on the other hand, if the warrant was not '' duly " issued, it was admitted that the taking the plaintiff back to the prison would legally be a trespass (since it would be an illegal removal of the person of the plaintiff), the question of the force and effect of the word " duly " had, necessarily, a close connection with the question of the defendant's liability at all, or of the operation of the statute, and wotld in effect determine the action, assuming that he was not liable for the subsequent detention, even supposing the warrant not duly issued. The case of Oobbett v. Grey, 4 Bx. 729, seems to give a clue to the proper view of the present case, especially coupled with and distinguished from the case of Hooper v. Lane, 10 Q B. 546 ; for in Ihe former case the same legal custody continued, and the trespass \vas only in a wrongful removal to a particular place comprised within that custody ; whereas in Hooper v. Lane, where the sheriff had arrested under a warrant, which was set aside, and had not issued a warrant, or made an arrest under another and valid writ which he had, it was held that the custody under the latter writ had never commeneed or taken effect In Cobbett v. Grey, and in the present case, the custody under a good writ had commenced and continued It is not, therefore, merely with reference to the Statute of Limitations that it beoomes material to consider in such a case as the present where the act of the defendant commenced and terminated, and where the detention of the plaintiffs ceased to be " under and by virtue of the warrant " to remand him to the prison. Now it is a well-known law, that when a man is in custody of the sheriff, the debvery to the sheriff of another writ completes the execution under that wnt , and if the debtor is needlessly brought up on a habeas corpus to be charged, he will be simply remanded to the custody of the sheriff (Owen v. Owen, 2 B. & Ad 805). And it seems also well settled that when the writ has once been executed, it takes effect so soon as the debtor gets back into the sheriff's custody (Bryant v Aulcot, 1 M. & W 408), quite independently of the legality of the arrest on the writ by which the debtor is got back into the sheriff's custody And if the debtor gets back into lawful custody, it seems an inconsistency to say that anybody could be liable, as for an unlawful custody. If the man who has got the body of tne debtor may lawfully hold him, it is impossible that any one can be liable for his being unlawfully held. The legality of arrest has nothing to do in such a case with legality of custody. Thus it has been held that if, wiale a c&. sa. is lying in the hands of the sheriff, the party is illegally taken into custody at the suit of another person, the ca sa. attaches, and the slieriS cannot discharge the party (Arundel v. Chitty, 1 D. P. C 499). As to the defence under the Statute of Limitations, questions under such statutes depend upon an accurate consideration of the nature of the cause of action The general principle, of course, is that the statute runs from the time of the cacrmng of the cause of action, not the damage, unless the damage itself is the cause of action, which, in cases of tort, may...
To continue reading
Request your trial