Henry Edmund Taaffe, Esq., v The Right Hon. William Downes, Lord Chief Justice of the Court of King's Bench in Ireland
| Jurisdiction | England & Wales |
| Judgment Date | 06 February 1840 |
| Date | 06 February 1840 |
| Court | Court of Common Pleas |
English Reports Citation: 13 E.R. 15
IN THE COURT OF COMMON PLEAS IN IRELAND.
CALDER V. HALKET [1839] III MOORE, 35 the statute 21st Geo. [35] III., c. 70, protects the Judges of the Native Courts in India in the same manner as those of 7th. Jac. I., c. 5, 21st Jac. I., c. 12, s. 15, and 42nd òGeo. III., c. 85, s. 6, protect the Judges of our own Courts; but if the act done be out of the jurisdiction of the Judge, then he is not protected. Bushel's case (1 Mod. 119); Hamond v. Howell (1 Mod. 184, and 2 Mod. 218); Miller v. Scare (2 W. Black. 1141). This doctrine was adnaited in Dicas v. Lord Brougham (6 Carring-' ton and Payne, 249 [3 St. Tr. (N.S.) 569]), and formed the basis of the decision in Mostyn v. Fabrigas. If an act is done, by a Judge as Judge of Record, in his judicial capacity, then no action will lie against him. Groenvelt v. Burwell (1 Lord Ray. 454; 1 Salk. 200). But the Foujdarry Court is not a Court of Record, it is the native Criminal Court, created under the. Regulation of 1772, at the same period *as the Sudder, which has been held, as we are instructed, by the Supreme Court of Calcutta, not to be a Court of Record. If a party not being a Judge of a Court of Record improperly grants a. -warrant, on which another is imprisoned, an action lies, Beardmore v. Carrington. (2 Wilson, 244), Burdett v. Abbott (14 East, 1), and he must plead specially. Now though the warrant is sealed with the seal of the Foujdarry Court, the act of granting it was a ministerial and not a judicial act, and being an excess of jurisdiction, an action will lie for it. Beaurain v. Scott (3 Camp. 388). The distinction between a ministerial and judicial act was taken and insisted on with great learning and ability in a case in the Court of Common Pleas in Ireland, Taaffe v. Downes, Chief [36] Justice of the Kind's Bench (a). The (a) The case of Taal' e v. Downes, Chief Justice of the King's Bench, in Ireland, was published in 1815, as a separate report, by Mr. Hutchell, a Barristerùno regular reports of the Court of Common. Pleas in Ireland existed at that time, and Mr. Hatchell's book being out of print, and extremely scarce, the Editor ventures to think that a case on so important a point, involving so much constitutional law, ought to be preserved, and that an epitome of it will not be unacceptable to the profession. The limits of a note have compelled the omission of the arguments of Counsel, as well as the judgment of Mr. Justice Fletcher, who differed from the other Judges of the Court ; but the authorities relied on, both at the bar and by the learned Judge, are set out, and the judgment of the other Judges taken, from a copy of Mr. Hatchell's Report, in the Editor's possession. IN THE COURT OF COMMON PLEAS IN IRELAND. The Right Hon. JOHN, LORD NORBURY, Lord Chief Justice. LUKE Fox, Esq., EDWARD MAYNE, Esq., WILLIAM FLETCHER, Esq.ùJustices. HENRY EDMUND TAAFPE, Esq., v. The Right Hon. WILLIAM DO1VNES, Lord Chief Justice. of the Court of King's Bench in Ireland [June 12, Nov. 10, 13, and 24, 1812 ; Jan. 29 and 30, 18131 [Mews' Dig. tit. PUBLIC OFFICER, A. JUDICIAL CAPACITY, b. Liability to action. Trespass for assault and false imprisonement will not lie against a Judge for acts judicially done by him. A warrant granted by the Chief Justice of the King's Bench in Chambers, returnable in that Court, to arrest a party for a breach of the peace, is such a Judicial act as will protect him against an action for false imprisonment. Trespass for assault and false imprisonment.ùPlea 1st. The general issue. 2nd. Not Guilty, as to part, and to the residue justification, for that the Defendant was Chief Justice of the King's Bench, and as such issued a warrant under his hand, containing certain recitals, and commanding the persons therein named to apprehend and bring the-Plaintiff before him (the Defendant), or any of the Justices of the King's Bench, to be dealt with according to law. That the Plaintiff was arrested under the warrant by a person named in it, brought before the Defendant, and by him delivered to bail for his personal appearance in the King's Bench, on the first sitting day of the then next Michaelmas Term, and for his attendance there, from day to 15 lit MOORE, 37 CALDER V. HALKET [1839] Plaintiff having been arrested upon. a warrant from the Chief Justice, brought an action of assault and for false imprisonment, to which the Defendant pleaded that he was [37] Chief Justice of the King's Bench, and that as such, and in the course of his office of Chief Justice, issued his warrant. The Plaintiff demurred, because the day, and from term to term, to answer all such matters and things, as should be then and there objected against him, on the part of the King. Joinder on the first plea, and general demurrer to the justification. For the Plaintiff.-Perrin, O'Connell, and Barnes, who cited 2 Hawkins, Pleas of the Crown 121 and 135; 6 Comyns Dig., 101; Pleader E. 4, 15, 17, 379 ; Co. Litt. 232 a., 303 b.; 2 Inst. 52; 1 Black. Coin. 350; Lambard's Eirenarcha, 6, 12, 14; 1 Edw. III., c. 16; 34 Edw. III., c. 1; 48 Geo. III., c. 58; 2 Hale, Pleas of the Crown, 78 et 61, p. 53, 108, 110; 2 Bacon's Abr. 97; Windham v. Clere, Cro. Eliz. 130, 1 Leon. 187; Hill v. Bateman, 1 Strange, 710-711 ; MOstyn, v. Fabrigas, Cowper, 122; Groenvelt v. Burwell, 1 Lord Ray. 454, Comyn 79, 80, 1 Salk. 396; Hammond v. Howell, 1 Mod. 184, and 2 Mod. 218; Dr. Bonham's case, 8 Co. 107; Floyd v. Barker, 12 Co. 23; Throgmorton v. Allen, Tr. 11 Car. B.R. 2 Roll. Abr. 558; 011iet and Bessey's Case, cited 2 Lutwyche, 1568; Morgan v. Hughes, 2 Term 225 ; Barnardiston v. Soames, 2 Lev. 114 ; Ashby v. White, Lord Ray. 938; Rex v. Reily, Irish Term Rep. 204. For the Defendant.-Foster, Pennefather, and Radcliffe, who cited Parl. Roll. 1 Hen. 1; Liner's Abr. tit. Judicial, Tit. Judges 1; Burdett v. Abbott, 14 East, 123; Poole v. Guynne, Lutw. 935, et 1560; The Marshalsea. Case, 10 Co. 69 ; Co. 4 Inst., 10 Co. 470-71; Bushell's Case, 1 Mod. 119, Laugh. 135 ; Miller v. Seare, 2 W. Bla. 1141; Sutton, v. Johnston., 1 Term Rep. 493, 511-12-17-29; --e Caux v. Eden, Douglas 594 ; Eaton v. Southby, Willes's Repts. 131 ; Anon, 6 Mod.. 73 ; 3 Blac. Com. 41; 2 Inst. 55; Lamb. Eirenarcha, 12, 13, 579; 2 FIale's P.C., 5, 586; Dal-ton's Justice 117; Pickard v. Paiton, Siderfin, 276; Noy, 156 ; 2 Hawkins, 147-8, et 136; Lib. 2, sec. 20; Wilmot's Notes of Opinion, 81, 95, 101; Felton v. Darbey, Comb. 57; Smith v. Frazer, 1 W. Blac. 192; Rex v. White, Rep. temp. Ld. Hardwick, 42; Rex. v. Burchell, 1 Strange, 567; Rex v. ,AT eals, Rep. temp. Ld. Hardwick, 112; Grocers Co. v. Arch. of Canterbury, 2 W. Bla. 770; Medcalf v. Hodgson, Hutton's Rep.. 120; Rex v. Almon, Wilmot's Notes of Op. and Jud. 213; Damport v. Sympson, Cro. Eliz. 520; Ayre v. Sedgwick, 2 Rolle Rep. 197-198; Iriddesdale v. Duke of Montrose, 4 Term. Rep. 248; Stone v. Lidderdale, 2 Anst. 533; P'tarty v. Odium, 3 Term Rep. 681. Mr. Justice Fletcher, who differed from the other Judges, cited and commented on Throgmorton v. Allen; Vin. Abr. Tit. Trespass, vol. 20, p. 477 ; Floyd v. Barker, 12 Coke Rep. 23 ; Soames v. Barnardiston, 2 Lev. 114, 7 State Trials, 437; Lamb. Eirenarcha, cap. 9, p. 54-5, cap. 3, p. 12; The King v. Almon; Wilmot's Notes of Op. and Ind. 243 ; Fitzherbert, N.B., 152; Bisp. Nicholson.'s Eng. Hist., 1 Ed. 1714, p. 205-6 ; Seldon, cap. 9, 1; Bracton, Lib. 5, p. 413 ; Fleta, Lib. 2, ch. 12 ; 2 Inst. 53 ; 4 Inst. 81, 182, 174-177; Wilmot on Hab. Corp. p. 100; Fitzherbert in 4 Hen. VIII., fo. 16; Fitz. Abr. Tit. Assize, 17; Finch, 355; Ratnell, 263; 2 Hale, 194; 48 Geo. III., c. 58; 2 Hawk. 1.35; Muriel v. Tracy, 6 Mod. 169, and Laugh. 137; Bengough v. Rossiter, 4 T.R. 505; Bushell's case, 1 Mod. 119 ; 4 Inst.. 73 ; Rex v. White, Burdett v. Abbott, 14 East, 1; Rex v. Almon, Wilmot, 243, 254; The Rioters' Case, 1 Vern. 175, 1 E. Ca. Abr. 441; Bridgman v. Holt, Show. Pa. Ca. 111. Mr. Justice Mayne (January 30).-----In this case, however sorry I am to differ from the learned Judge who has preceded me, in pronouncing the judgment of the Court, upon this important case, yet I am decidedly of opinion, that the demurrer ought to be overruled; and that the plea contains a bar to this action. I feel, that the cause of my differing in opinion from my brother Fletcher, is owing to his arguing on a question, that is not before the Court. It has been argued mostly at bar and bench, as if the question was, whether it was lawful or defensible for a Judge, without any offence committed, or charge made upon oath of crime or suspicion of crime committed, to imprison a subject-ex mere mote---out of his mere caprice or malice. Nothing in my apprehension, is less like the question before us. The Chief Justice makes no such question. It is not the question here upon the record. 16 CALDER V. HALKET [1839] III MOORE, 38 Defendant did not justify by his plea, the issuing the [38] warrant, by setting forth the causes for which, as well as the authority under which, it was issued. The case was elaborately argued by the most eminent men at the Irish bar, and though the Court gave [39] judgment against the demurrer, one of the Judges, Mr. Justice The action is for assault and false imprisonment. The plea in effect is, that all that_ is necessary or proper for the Court to inquire into in this action is, that the Defendant is Chief Justice of the King's Bench; and as such, and in the course of his office of Chief Justice, issued a warrant,ùlegal on the face of itùto cause this Plaintiff to do what was necessary for his answering the charge (in the warrant fully recited) of a criminal offence, fully also recited to have been sworn. to ; and that the only assault and imprisonment was the constable's bringing the Plaintiff to give bail, in the course of this proceeding. The plea of the Chief Justice does not say, that it is the right of a Judge to imprison...
To continue reading
Request your trial
-
DPP v Independent Newspapers (Ireland) Ltd
...66 A.L.J.R. 344. Rattigan v. Director of Public Prosecutions [2008] IESC 34, [2008] 4 I.R. 639. Taaffe v. Downes (1839) 3 Moo P.C.C. 36n; 13 E.R. 15. The People v. O'Shea [1982] I.R. 384; [1983] I.L.R.M. 549. The People (A.G.) v. Conmey [1975] I.R. 341. The People (D.P.P.) v. Quilligan (No.......
-
Gomez v Klonaris et Al
...4 B & C 855, 107 E.R. 1277 at p. 1278 – 79 per Abbott C.J. with whom Bayley and Hoiroyd JJ., agreed; Calder v. Halket (1839) III Moore, 28; 13 E.R. 15 and Taaffe v. Downes (1812) reported as a note to Calder v. Halket III Moore 35; Dicas v. Lord Brougham (1833) 6 CAR & F. 249, 172 E.R. 1228......
-
Richardson v Tubbs
...(2 Lutw. 935, 937, 1560); Lowther v. Lord Radnor (8 East, 113); Pike v. Carter (3 Bingh. 78, 10 J. B. Moore, 376); Odder v. Allday (3 Moore, P. C. 36); Cam v. Mountain (1 M. & G. 257, 1 Scott, N. E. 132); The King v. The Justices of Gloucestershire (1 B. & Ad. 1). Where there is a remedy by......
-
Public Prosecutor v Nahau Rooney (No 2)
...powers. In Sirros v. Moore (1975) Q.B. 118, at pp. 146-147.44 the words of Fox J. in Taaffe v. Downes (1813) 3 Moo. P.C. 36, at pp. 51-52; 13 E.R. 15, at pp. 23-24.45 were approved in the Court of Appeal in England: "It is necessary to the free and impartial administration of justice, that ......
-
Preliminary Sections
...15 Taaffee v. DoWnes (1813) 3 Moo PC 36 ................................................................. 645 Taiwo Okeowo v. Mrs Migliori (1979) 11 S.C. 138 at 197-199. ...................... 323 Taiwo v. Ogunsanya (1967) N.M.L.R. 375 .............................................................