Massey against Johnson
| Jurisdiction | England & Wales |
| Judgment Date | 14 June 1809 |
| Date | 14 June 1809 |
| Court | Court of the King's Bench |
English Reports Citation: 104 E.R. 27
IN THE COURT OF KING'S BENCH
massey against johnson. Wednesday, June 14th, 1809. The stat. 43 G-. 3, c. 141, does in no instance extend'to protect justices of peace in the execution of their office against actions for acts of trespass or imprisonment, unless done on account of some conviction made by them of the plaintiffs in such actions by virtue of any statute, &c. But whether certain proceedings alleged by the plaintiff to have been set on foot against him by the defendant, a justice of the peace, ex mero motu, without any information laid on oath before him, (though falsely alleged to be on the information on oath of J. S.,) on which the plaintiff was taken and imprisoned, were a conviction within the meaning of the Act; so that the plaintiff was thereby confined to seek redress by an action on the case framed as the Act directs; the Court would not inquire of on affidavit, but sent the case to a new trial to have the fact of such conviction ascertained. And it appearing on a second trial, that an information on the oath of T. 0. on a charge of vagrancy against the plaintiff was laid before the magistrate on a certain day, when the -plaintiff was examined and heard upon that charge, and that the magistrate then made out a warrant of commitment until the next sessions, in which warrant it was wrongly stated that the plaintiff had been charged on the oath of T. S., (who negatived having made any such oath;) but which allegation it was held might be rejected as surplusage ; and afterwards drew up a conviction dated on the same day, but not exhibited till a month afterwards at the sessions : Held that this was sufficient evidence of a conviction connected with the imprisonment, however informally such conviction or warrant of commitment operating as a conviction were drawn up; and, therefore, that at all events the magistrate was protected against this action of trespass. The magistrate is liable to answer in an action for such part-of an imprisonment suffered under his warrant as was within six calendar months before the action commenced against him. This was an action of trespass and false imprisonment, which was brought against a magistrate of the county of Chester, in consequence of a commitment by him of the plaintiff to the house of correction, under a proceeding which was contended 28 MASSET -V. JOHNSON 12 EAST, 68. by the magistrate to be a conviction of the plaintiff as a vagrant. At the first trial before the Chief Justice of Chester, it was opened by the plaintiff's counsel, and proposed to be proved, that no information had been taken by the defendant which could warrant any conviction or commitment, but that the magistrate had proceeded ex mero motu ; and they began [68] by proving the notice of the action, served above a month before the action brought, directed to the defendant " one of His Majesty's justices of the peace for the county of Chester;" and stating in substance that the defendant having on the 27th of March 1808 as one of His Majesty's justices of the peace for that county, caused the defendant to be apprehended and unlawfully committed to the house of correction, and there imprisoned for 4 months then next following, the plaintiff, according to the form of the statute, gave him notice that after the expiration of one calendar month he should sue out a writ of latitat against the defendant in B. B. for the said imprisonment, and proceed against him thereupon according to law. Upon this it was immediately objected for the defendant, that the case was within the late Act of the 43 Geo. 3, c. 141, and that the action of trespass was not maintainable ; and thereupon, without entering further into the case, the plaintiff was nonsuited. That statute, reciting that justices of the peace, who are authorized and required by divers acts to convict persons of offences in a summary way, should be rendered more safe in the execution of their duty, enacts, " that in all actions whatsoever brought against any justice of the peace on account of any conviction by him made by virtue of any statute, &c., or by reason of any act, matter or thing whatsoever; done or commanded to be done by such justice for the levying of any penalty, appre^ bending any party, or for carrying any such conviction into effect, in case such con^ viction shall have been quashed, the plaintiff in such action (besides the penalty, if levied, &c.) shall not be entitled to recover any more damages than 2d., nor any costs unless it shall be expressly alleged in the declaration in the action in which the recovery shall be had, and which shall be in an [69] action upon the case only, that such acts were done maliciously and without any reasonable and probable cause." Topping (with whom were Yates and Eichardson) moved in the last term to set aside the nonsuit (a), contending, upon the authority of Morgan v. Hughes (b), that trespass, and not case, was the proper remedy in this instance : and that the Act of Parliament must be confined to eases where the magistrate had a jurisdiction, and a conviction had been made, regular at least in the form and manner of proceeding^ and not where he had proceeded without any information on oath laid before him, and therefore without any semblance of authority. A rule nisi being granted, The Attorney-General and J. Williams now shewed cause against it, and relied upon the positive words of the statute, that a magistrate should not be liable for any act, matter, or thing done or commanded by him, for carrying any conviction into effect, in case such conviction shall have been quashed, (which of course assumes that it was illegal) except in an action upon the case only; and even then the plaintiff shall not be entitled to recover more than 3d. damages (over and above the penalty, if levied,) unless the declaration alleges that the act [70] was done maliciously and without any reasonable and probable cause. If an action of trespass therefore may be brought, to which that injunction does not apply, the magistrate will be deprived of the benefit of the statute. It is only magistrates who happen to have acted illegally who are liable to be sued with effect .at all, and the statute meant to protect them against damages in every ease but where they had acted from malice and without probable cause. The Court having asked the Attorney-General, whether he meant to contend that the statute extended further than to protect magistrates in cases where there (a) At the same time Topping stated, by way of objection, that the cause had gone down to trial at Chester by mittimus, without an order for a special jury; and after it was entered, application was made to the Court there, by the defendant, for a special jury; which the plaintiff opposed ; but the Court at Chester granted it; saying that it was their practice so to do. Le Blanc J. asked how advantage could be taken of this upon the motion to set aside the nonsuit then before the Court. And Lord Ellenborough C.J. afterwards said that the objection, if any, Was cured by the plaintiff's appearance. (I) 2TermEep. 225. 12 EAST, 71. MASSEY V. JOHNSON 29 had been a conviction in form: and being answered in the negative; after some consultation Lord Ellenborough C.J. said, that such being their consideration of the meaning of the statute, that it was confined to cases where there had been a conviction by the magistrate; it seemed to them that the progress of the cause had been stopped too soon ; before it had appeared whether there had been a conviction or not; and therefore it was necessary that the cause should go to trial again in order to have that fact ascertained. On this J. Williams said that they had now an affidavit of the fact of a conviction having been made by the magistrate; which might save the expence of taking the Cause to trial again. But the Court said that they could not take notice of that affidavit; for if they received it, they must let in affidavits on the part of the plaintiff denying the conviction, and so they should have to try the fact upon affidavits. And afterwards [71] Lord Ellenborough C.J. said : it appears to me that the true construction of the Act is, to confine the protection given by it to magistrates to eases where there has been in fact a conviction : and if there were a conviction in fact in this case, it would answer no purpose to the plaintiff to carry the cause to trial again; but as that matter was not ascertained at the former trial, we must send it to another. All the other Judges concurred in this : and Le Blanc J. added, that if the construction of the Act were otherwise, it would go the length of saying that in no case would trespass lie against a magistrate for any act done by him in his official character, whether there had been any conviction or not; which could not have been the...
To continue reading
Request your trial
-
O'Reilly v Lawton
...11 Rep. 63. Cooke v. LeonardENR 6 B. & C. 351. Lidster v. Borrow 9 A. & El. 654. Bushe v. GreeneENR 4 Bing. N. C. 41. Massey v. JohnsonENR 12 East, 67. Bateman v. DunneUNKENR 7 Dowl. P. C. 105; S. C. 5 Bing. 49, and 6 Scott 739. Taylor v. FenwickUNKENR 3 B. & P. 553, n.; S. C. cited by Lawr......
-
The King against T. Cooper
...English Reports Citation: 101 E.R. 674 IN THE COURT OF KING'S BENCH.The King against T. Cooper 12 East, 67. the king against T. cooper. Monday, Jan. 25th, 1796. A commitment in execution by a magistrate must state that the party has been convicted : setting forth that he was charged on oath......