Magnay, Rogers, and Walter against Burt
| Jurisdiction | England & Wales |
| Judgment Date | 28 November 1843 |
| Date | 28 November 1843 |
| Court | Exchequer |
English Reports Citation: 114 E.R. 1293
IN THE EXCHEQUER CHAMBER.
S. C. D. & M. 652; 12 L. J. Q. B. 225; 7 Jur. 1116. Explained, Ames v. Waterlow, 1869, L. R. 5 C. P. 63.
[381] in the exchequer chamber. (error from the queen's bench.) maqnay, rogers, and walter against burt. Tuesday, November 28th, 1843. No action lies against a sheriff or his officer for arresting a party attending under a summons from a Court, though it be alleged that the party was thereby privileged, and that the defendants knew the fact, and made the arrest maliciously. If a party be arrested, and the Court of Review order him to be discharged on the ground that he was in attendance under order of that Court, but the officer arresting does not discharge him, the remedy (if any) against the officer is in trespass, not case, though malice be alleged. So held by the Court of Exchequer Chamber, reversing the judgment of the Court of Queen's Bench. [S. C. D. & M. 652; 12 L. J. Q. B. 225; 7 Jur. 1116. Explained, Ames v. Waterlow, 1869, L. E. 5 C. P. 63.] Case, by the defendant in error against the plaintiffs in error. The declaration charged that, whereas heretofore, and before and at the time of the committing of the grievance hereinafter mentioned, the defendants Magnay and Rogers had been and were Sheriff of Middlesex, and the defendant Walter was then an officer of the said other defendants; and that, before the committing, &o., on, &c., an order was made by the Court of Eeview, in the matter of one Henry Charles Curlewis, of, &c., against whom a fiat in bankruptcy had issued, whereby the said Court of Eeview did order that it be referred to William Scrope Ayrton, Esquire, an officer of Her Majesty's Court of Bankruptcy, to inquire and state whether, at the date and suing forth of the said fiat, there was any and what debt due from the said H. C. Curlewis to plaintiff, the petitioning creditor under the said fiat, in the said order mentioned, sufficient in amount to support the said fiat, and that, for better making the aaid inquiry, all necessary and proper parties were severally to be examined 1294 MAQNAY V. BXJRT 8 Q. B. 382. before the said W. S. Ayr-ton, upon interrogatories or otherwise, touching the matters in question, as the said W. S. Ayrton should think fit, &c., and that the said W. S. Ayrton was to be at liberty to examine the said H. C. Curlewis, [382] the said petitioner in the said order mentioned, and the said plaintiff, the said respondent in the said order mentioned, or either of them: as by the said order, &c., will more fully appear. That afterwards, and before the committing of the grievances, &c., to wit on, &c., the said W. S. Ayrton did, in pursuance of the said order, by a summons in writing signed by the said W. S. Ayrton, summon plaintiff (defendant in error) to appear before him on Tuesday the 28th day of June 1842, at eleven o'clock in the forenoon, at the office of the Registrar in Bankruptcy, Quality Court, Chancery Lane, there to be examined by or before him the said W. S. Ayrton in the aforesaid matter of the said H. C. Curlewis. That afterwards, and before the committing, &c., to wit on, &c., plaintiff was duly served with the said summons, and in obedience thereto, he did afterwards, to wit, at eleven o'clock on, &c., the day and year in the said summons mentioned, attend at the said registry office in his own person before the said W. S. Ayrton, in the aforesaid matter, under the aforesaid reference; and that afterwards, to wit on the day and year last aforesaid, and after plaintiff' had been attending at the registry office before the said W. S. Ayrton for the purpose aforesaid, and whilst he was leaving the said registry office for the purpose of returning to his place of abode, and was returning to his place of abode, defendants, so being such sheriff and such officer as aforesaid, and before any reasonable time had elapsed for the return of plaintiff to his said place of abode, well knowing that plaintiff was then privileged from arrest, and disregarding their duty in that behalf, wrongfully and maliciously took and arrested plaintiff by his body, and then kept [383] and detained plaintiff in custody for a space of time, to wit five days, after defendants had been requested to discharge plaintiff from and out of their custody, under and by virtue of a certain writ of capias ad satisfaciendum, directed to defendants Rogers and Magnay as such Sheriff of Middlesex, whereby our said lady the Queen commanded the said sheriff that he should take plaintiff, &c., so that he might have his body before the Barons of Her Majesty's Exchequer, &c., to satisfy one S. L. Curlewis the sum of 3001., which by the consideration and judgment of the said Court was then and there adjudged to the said S. L. Curlewis for his damages, &c., as by the record, &c. That afterwards, to wit on, &c., by a certain order then made by the said Court of Review in the matter of the said H. C. Curlewis, a bankrupt, bearing date the day and year aforesaid, it was ordered that the Sheriff of Middlesex should discharge plaintiff out of the custody of defendants Magnay and Rogers, as such Sheriff of Middlesex as aforesaid, in which custody plaintiff was detained at the suit of the said S. L. Curlewis : of all which premises defendants had notice. Yet defendants, further disregarding their duty in that behalf, did not nor would then discharge plaintiff out of the custody of defendants Magnay and Rogers as such Sheriff of Middlesex as aforesaid, but, on the contrary thereof, wrongfully, unlawfully and maliciously, and against the will of plaintiff, kept and detained plaintiff in their custody for a long time, to wit for a space of five hours, after they had notice of the said last mentioned order. Plea, by Magnay and Rogers, not guilty. Issue thereon. [384] Pleas by...
To continue reading
Request your trial
-
Jolly v Hull; Jolly v Jolly
...[1997] 3 All ER 183, [1997] 1 WLR 1256, CA. Freston, Re (1883) 11 QB 545, CA. Hunt, Re [1959] 2 QB 69, CA. Magnay v Burt (1843) 5 QB 381, 114 ER 1293. Appeals Jolly v Staines CC circuit judgeThe appellant, Mr Jolly, appealed from the decision of Judge Rich QC, sitting as a High Court judge,......
- Re O'Sullivan; ex parte O'Oullivan v Commonwealth Bank of Australia