argued upon the question whether judgment ought not to be arrested on the second count,

Couch (with whom was Byles, Serjt.,) was further heard for the defendant in Easter Term (1):

The question is whether at common law an action will lie against a magistrate who wilfully gives a wrong judgment on a matter within his jurisdiction by convicting the plaintiff, there having been no distress or warrant to distrain, and no committal. The statutes do not alter the liability of a magistrate to such an action. In Bacon's Abridgment, "Justices of the Peace, F.," it is said, a justice of the peace," is not punishable at the suit of the party, but only at the suit of the King for what he doth as Judge in matters which he hath power by law to hear and determine without the concurrence of any other; for regularly no man is liable to an action for what he doth as Judge." There is no distinction between a Judge of record or any other person exercising judicial functions. In 2 Hawk. P. C. c. 8, s. 74, no distinction is made between acts done in Sessions or out of Sessions. The question of immunity turns upon whether the act done is judicial or merely ministerial. In Holroyd v. Breare (2), Lord TENTERDES held that an action did not lie against the steward of a court baron, on the ground that he was a part of the court and not a minister of it.

(MARTIN, B.: In that case the defendant had done nothing wrong.)

In Groenvelt v. Burwell (3), which was an action against the Censors of the College of Physicians for improperly convicting the plaintiff under the bye-laws of the college for mala praxis, it was held that no action would lie against the defendants for what they did as Judges. HOLT, Ch. J., saying "that the authority of the defendants was absolute to hear and determine the offence," and "that persons who are Judges by law shall not be liable to have their judgments examined in actions against them."

(POLLOCK, C. B.: The question is not whether a magistrate, who without any evidence wilfully and maliciously convicts a person brought before him, is liable to an action; but whether a man who has really acted as a Judge shall have the question tried before a jury.)

(1) April 15. Before Pollock, C'. B., Martin, B., Bramwell, B., and Channell, B.

(2) 21 R. R. 361 (2 B. & Ald. 473).
(3) 1 Ld. Ray. 468.

In this case it was said that the want of probable cause was évidence of malice." Floyd and Baker's case (1) and Dicas v. Lord Brougham (2) show that there is no distinction between a Judge of a court of record and another Judge. The result of the authorities is, that at common law magistrates were not liable except for trespasses. If a magistrate authorized a trespass and had no jurisdiction, or if there was no conviction, he was liable to an action of trespass: if the conviction was quashed, the conviction being gone, he was left without protection; therefore the statute 43 Geo. III. c. 141, was passed for the protection of a magistrate under such circumstances. The 11 & 12 Vict. c. 44, does no more than extend the protection given by the former Act.

(MARTIN, B.: What protection would the magistrate require if the defendant's contention were well founded?)

In Hilary Term (Jan. 29) the COURT called on

N. Palmer and J. H. Mills to support the rule obtained
on behalf of the plaintiffs:

First, the defendant acted without jurisdiction. The warrant.
of commitment refers to a bye-law, but does not show that
the plaintiff committed any offence against that bye-law, or
within the Isle of Ely. The offence charged is, that the
plaintiff unlawfully travelled in one of the Company's carriages
from Trowse to Ely without having first booked his place and
paid his fare, contrary to the bye-law in that behalf; but the
bye-law imposes no penalty for such an offence. Again, there
is no power to apprehend a person for an alleged offence
against a bye-law, or to issue a warrant before conviction,
but a summons ought to have issued. By the 6 & 7 Will. IV.
c. cvi., s. 236, all penalties imposed by any bye-law may
be recovered by order of any two justices of the peace. By
the 237th section, when any penalty is recoverable by informa-
tion before any justice, he may summon before him the party
complained against. Here there was no information or sum-
mons. The 238th section only enables any officer or servant
of the Company to seize and detain an offender whose name
and residence shall be unknown, for offences committed against
the provisions of that Act. The justice has no jurisdiction
except on summons, and he must then proceed to the deter-
mination of the case without any remand. By the 1 & 2 Vict.
c. lxxxi., s. 56, there is power to apprehend any person
travelling without having previously paid his fare; but not for
(2) 1 Moo. & Rob. 307.
39

(1) 12 Co. Rep. 24.

R.R.-VOL. CXV,

GELEN

v.

HALL.

[394]

GELEN

r.

HALL.

[395]

1*396 1

refusing to deliver up his ticket. That enactment, however,
has no application here, because the warrant refers to an
offence against a bye-law, and the bye-law imposes no penalty
for such offence. The 145th section of "The Railways Clauses
Consolidation Act," 8 & 9 Vict. c. 20, does not affect the case,
because that Act only applies to railways to be thereafter
constructed. *Moreover, there was no power to apprehend the
plaintiff at Ely, for he was a passenger from Trowse to London.
Secondly, the warrant of commitment is bad on the face of
it. * *

Cur. adv. vult.

The judgment of the COURT was now delivered by

POLLOCK, C. B.:

This was an action tried before Lord Campbell at the last Cambridge Summer Assizes. There were two counts in the declaration, the first for an assault and false imprisonment; the second for an alleged wilful and malicious conviction of the plaintiff, without reasonable or probable cause, for the breach of a bye-law of the Eastern Counties Railway Company, by refusing to deliver up his ticket.

The facts proved, so far as they are material to the present judgment, were, that on the morning of the 23rd of September last, the plaintiff paid for and received a ticket at the Eastern Counties Railway Station at Norwich for London. He travelled by the railway to Ely, when one of the Company's officers required him to produce it: after some time, and as to the circumstances connected with which the evidence was contradictory, the ticket was produced. It was a ticket dated the 3rd of September, and the plaintiff was thereupon taken into custody by an officer of the Railway Company, who did not then know his name *or residence, but who was informed of it immediately afterwards. On the following morning (Monday) he was taken before the defendant, a justice of the peace, who committed him to the house of correction, under a warrant in the Form (D.) in the schedule to the Act, 11 & 12 Vict. c. 43. The warrant stated that the plaintiff had been charged on oath before the defendant, for having travelled on the railway without having paid his fare, contrary to a bye-law of the Company, and commanded him to be taken to the house of correction and there kept until the 27th, and to be then brought before the justices at Petty Sessions to answer the charge. Upon the next day (Tuesday) it was ascertained that the plaintiff had paid his fare and received a ticket, but that in consequence of the stamping machine being out of order the date

L

was marked as the 3rd instead of the 23rd.

The defendant being informed of this caused the plaintiff to be sent for from the house of correction and discharged him; but a summons was then served upon him requiring his appearance on the 27th to answer a charge for refusing to deliver up his ticket. He appeared in consequence, and was convicted in a penalty of five shillings and costs which he paid. The conviction was afterwards quashed by the Court of Quarter Sessions on appeal. The first count was for the imprisonment under the warrant of the 24th September. The CHIEF JUSTICE was of opinion that the imprisonment was lawful, but directed the jury to find the damages, and the verdict was entered for the defendant, but leave given to the plaintiff to move to enter the verdict for him for 201., which the jury found to be the damages. Mr. Palmer obtained a rule to enter the verdict accordingly, but we are of opinion that the ruling of the CHIEF JUSTICE was right, and that this rule ought to be discharged.

The question depends entirely upon certain Acts of Parliament. The Railways Clauses Consolidation Act, 1845, *8 & 9 Vict. c. 20, does not apply. It is confined to railways authorized to be thereafter constructed, and the Eastern Counties Railway was made under a previous Act, viz., the 6 & 7 Will. IV. c. cvi. Under the 158th section of this Act a bye-law had been duly made which imposed a penalty of forty shillings upon any one travelling upon the railway without having booked his place and paid his fare. By the 237th section, penalties are made recoverable before a justice, who is authorized to summon before him any person against whom complaint is made for any offence against a bye-law, and to proceed therein. By the 238th section, any officer of the Company is empowered to seize and detain any person whose name and residence shall be unknown to him who shall commit any offence against the Act, and to convey him before a justice without any warrant; and the justice is required to proceed immediately to the conviction or acquittal of the offender. Upon this Act it was argued on behalf of the plaintiff, and we think correctly, that the defendant had no authority to issue a warrant before conviction, that his authority was to issue a summons only, and that the authority to arrest in the first instance, under the 238th section, was confined to the officer of the Company, and the duty thereby imposed upon the justice was forthwith, upon the alleged offender being brought before him, to proceed to the determination of the case.

But the Act relied upon by the defendant as justifying the imprisonment was the 11 & 12 Vict. c. 43, one of the Acts

called "Sir John Jervis's Acts," which is entitled "An Act to facilitate the performance of the duties of justices of the peace out of Sessions, within England and Wales, with respect to summary convictions and orders." The course of proceeding upon the hearing of complaints is regulated by several sections, beginning with the 12th, *and the 16th section enacts, that before or during the hearing of any complaint or information, it shall be lawful for the justice at his discretion to adjourn the hearing to a time and place to be appointed and stated, and in the meantime to suffer the defendant to go at large, or to commit him to, amongst other places, the house of correction, or to discharge him upon entering into a recognizance to appear; and the form of the warrant of commitment is given in the Schedule (D.) (1). It was upon this authority that the defendant acted, and we think it justified him. The plaintiff was brought before him under the alleged authority of the 238th section of 6 & 7 Will. IV. c. cvi., and we do not think it material whether or not the officer of the Company was justified in detaining the plaintiff in custody under it. It seems to us sufficient for the protection of the defendant, that the plaintiff was brought before him, and information and complaint made of an offence against the Eastern Counties Railway Act, and that thereupon, by the 16th section of "Sir John Jervis's Act," he was authorized, if in his discretion he thought fit, to commit the plaintiff under the warrant to the house of correction. The circumstance that the plaintiff had paid his fare cannot affect the authority of the justice to act upon the 16th section.

The second count was in respect of the conviction of the plaintiff on the 27th for not delivering up his ticket, and it alleges that the defendant convicted the plaintiff wrongfully, wilfully and maliciously, and without reasonable or probable cause, and that the plaintiff was thereby compelled to pay a sum of money, and that the conviction was afterwards quashed upon appeal to the Quarter Sessions. As to it a verdict was found for the plaintiff for considerable damages. A rule was obtained on behalf of the defendant to set aside the verdict as being against evidence, and also to arrest the judgment on the ground that the second count *discloses no legal cause of action. Upon the latter point we have bestowed much consideration, and we are not at present prepared to hold the count bad. But upon a careful perusal of the evidence, we think that the rule for a new trial ought to be made absolute;

(1) Repealed by 54 & 55 Vict. c. 67. See forms substituted by Summary Jurisdiction Rules, 1886.