detain any person discovered either in or after committing or attempting to commit any such offence as in the next preceding section is mentioned, and whose name or residence is unknown to such officer or servant, until such person can be conveniently taken before a justice, or until he be otherwise discharged by due course of law (s).

(9) See sects. 4 and 24.

(r) Defined in sect. 19.

(s) It must be noted that the power given by this section to seize and detain is strictly limited to the commission or the attempt to commit the offences specified in sect. 51 and those offences only. For detention for any other offence or supposed offence this section will afford no excuse. It extends, moreover, only to those persons

whose name or residence is unknown to the officer or servant concerned, and only for so long a time as is necessary to take the person detained before a justice or until he be otherwise duly discharged.

In respect of detentions, which are not justified either by this section or otherwise, either the promoters or lessees or their officers and servants, who were concerned, or all of them, will be liable in damages.

The general principles of liability as between master and servant are discussed and illustrated in the notes to sect. 55, post, p. 242. The special question of malicious prosecution and false imprisonment may, however, be conveniently dealt with here. It has been questioned whether a corporation aggregate can be sued for malicious prosecution. Suits for false imprisonment stand on a different footing, as a trespass is there included. The chief authorities against the legality of such a suit are Stevens v. Midland Counties Railway Co. (1854), 10 Ex. 352; 23 L. J. Ex. 328, per Alderson, B.; and Abrath v. North Eastern Railway Co. (1886), 11 A. C. 247; 55 L. J. Q. B. 457, per Lord Bramwell. The learned lord, in the latter case, seems to have had the subject on his mind, and was anxious to express himself upon it, for, as Lord Selborne, L. C., pointed out, the question had not been argued. On the other side we have the judgment of Fry, J., in Edwards v. Midland Railway Co. (1880), 6 Q. B. D. 287; 50 L. J. Q. B. 281, citing Whitfield v. South Eastern Railway Co. (1858), E. B. & E. 115; 27 L. J. Q. B. 229 (Lord Campbell, C. J.), and Green v. London General Omnibus Co. (1859), 7 C. B. (N. S.) 290; 29 L. J. C. P. 13; and Cornford v. Carlton Bank, [1899] 1 Q. B. 392; 68 L. J. Q. B. 196; [1900] 1 Q. B. 22; 68 L. J. Q. B. 1020 (C. A), the point being abandoned in the Court of Appeal. We have also a considerable number of cases in which the point has not been raised, though it

Sect. 52.

Sect. 52. might have been (e.g., Bank of New South Wales v. Owston (1879), 4 A. C. 270; 48 L. J. P. C. 25). Other instances will be found among the tramway cases cited below in this note, and see, too, Rayson v. South London Tramways Co., [1893] 2 Q. B. 304; 62 L. J. Q. B. 593 (C. A.). The legality of such a suit may now be taken as settled, so far at least as to make it not worth while to raise it again in an action.

The present section may be compared with Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), ss. 104 and 154, and, as already pointed out, like those sections, only extends to the matters therein mentioned. Thus it does not give power to arrest for offences against by-laws, except, semble, in so far as such offences also fall within sect. 51. (See Barry v. Midland Railway Co. (1867), I. R. 1 C. L. 130; and Chilton v. London and Croydon Railway Co. (1847), 16 M. & W. 212; 16 L. J. Ex. 89 (decided on a special Act). Young v. Great Eastern Railway Co. (1888), 5 T. L. R. 112, which seems to be a decision to the contrary, is unsatisfactory and difficult to understand.)

Apart from the general principles of the liability of a master for the tortious act of his servant, that is to say, those relating to scope of employment, to implied or express authority, and to the doing of acts for the master's or servant's interest, real or supposed (as to which see post, p. 242), the following points should be noted, which have a special reference to liability for detention or arrest by an officer or servant : Where a railway company" [the same principle applies to a tramway company] "are carrying on business there are certain things which are necessary to be done for the carrying on of the business and the protection of the company, and there are things which, if done at all, must be done at once, and therefore the company must have some person on the spot to do these things, a person acting with common prudence and common sense, clothed with authority to decide as the exigency arises what shall be done. If such person, intending to exercise his authority, makes a mistake and does an act which cannot be justified, the company are responsible, because he was their agent. . The fact that there is a person on the spot, who is acting as if he had express authority, is prima facie evidence that he had authority, and the presumption that he had authority must be rebutted by the company." (Blackburn, J., in Moore v. Metropolitan Railway Co. (1872), L. R. 8 Q. B. 36; 42 L. J. Q. B. 23, following Goff v. Great Northern Railway Co. (1861), 3 E. & E. 672; 30 L. J. Q. B. 148.) But the company is only liable in the case where the action of the officer would have been legal, if the facts had been as he supposed, that is, if the offence had been committed; the company is not liable where the act of the officer could not be legal, whether the facts were as he supposed or not, as where he arrested for an offence for which neither he nor the company had power to

arrest. There could be no implied authority in him to do such an act. (Poulter v. London and South Western Railway Co. (1867), L. R. 2 Q. B. 534; 36 L. J. Q. B. 294.) It may be, however, that the nature of an officer's or servant's employment is such as not to raise the presumption that he possesses authority to detain or arrest, and it will then rest with the plaintiff to prove such authority. (Bank of New South Wales v. Owston (1879), 4 A. C. 270; 48 L. J. P. C. 25.) A special kind of implied authority is that which an officer or servant may have under some circumstances to give into custody a person suspected of stealing his principal's property, but such authority is only implied in a case of emergency, and where the giving into custody is necessary to preserve the principal's property. (Bank of New South Wales v. Owston, ub. sup.; Allen v. London and South Western Railway Co. (1870), L. R. 6 Q. B. 65; 40 L. J. Q. B. 55.) It is necessary to distinguish for this purpose between an act done with the object of protecting the principal's property, or of recovering it back, and an act done for the purpose of punishing the offender for that which has already been done. (Abrahams v. Deakin, [1891] 1 Q. B. 516; 60 L. J. Q. B. 238 (C. A.); Jones v. Duck (1900), "Times" Newspaper, Mar. 16 (C. A.); Hanson v. Waller, [1901] 1 K. B. 390; 70 L. J. K. B. 231.) Abrahams v. Deakin applied this principle to an arrest for a supposed attempt to pass false coin, and the same view appears in the tramway cases which follow. Stephen, J., in Furlong v. South London Tramways Co. (1884), C. & E. 316; 48 J. P. 329, held a tramway company liable, where their conductor arrested a person whom he wrongly supposed to have tendered him a false coin in payment of his fare. There was no evidence of specific orders given to the conductor by by-law or otherwise to do so, or not to do so, but the judge thought that the act was covered by the present section, on the ground that the passenger had, as the conductor supposed, attempted to avoid paying his fare within the meaning of sect. 51. We are not told whether the conductor knew or was told the person's name and address. It would seem, however, that this case can no longer be considered good law.

In Charleston v. London Tramways Co. (1888), 36 W. R. 367; 4 T. L. R. 157; 32 So. J. 557; 4 T. L. R. 629 (C. A.), overruling Stephen, J., who had given judgment for the plaintiff, it was held that the company were not liable under similar circumstances, though there was the important difference that the company's printed instructions to their conductors forbade them to give into custody without the authority of an inspector or time-keeper in any case but a case of assault, and such authority had not in fact been given. The Divisional Court in this case based their decision on the view that the present section only extends to officers or servants appointed for the purpose by the company. The Court of Appeal based themselves, on the other hand, on the view that there could be no

Sect. 52.

Sect. 52.

authority to the conductor to do the act, as the company would have had no power to do it themselves.

The decision in this last case was extended, in Knight v. North Metropolitan Tramways Co. (1898), 78 L. T. 227; 42 So. J. 345; 14 T. L. R. 286, to a case where, as in Furlong v. South London Tramways Co., there was no evidence of authority given to the conductor to arrest under such circumstances, and no evidence that he had been forbidden to do so. It is to be noted that Furlong v. South London Tramways Co. is not cited in the reports of either of the cases which practically dispose of it. Quare whether Stephen, J., may not have been right, after all, in holding that the present section confers power to arrest a person for attempting to pass coin in payment of a fare if his name or address is unknown to the officer who arrests him. The difference in the reasons given for their judgment by the two Courts in Charleston v. London Tramways Co. is significant; and Bruce, J., in Knight v. South London Tramways Co., propounded yet another reason for his judgment, viz., the general ground that the act was not necessary to protect or preserve the company's property.

false

In Wilson v. Leeds Tramways Co. (1883), "Times" Newspaper, June 30, the Court held, as a matter of law, that the general manager of a tramway company had no authority to arrest-the matter was not one which fell within the present section.

Apthorpe v. Edinburgh Street Tramways Co. (1882), 10 R. 344, was a remarkable decision. A tramway company had statutory power to work omnibuses instead of a tramway on part of their route owing to certain physical difficulties. They made a by-law that passengers, whose journey included passage by both kinds of vehicle, should go into the office at the point where they changed vehicles, and get their through tickets checked in some way. Ꭺ passenger who had paid his fare for the whole journey, and who was aware of the by-law, did not get his ticket checked, and, being asked by the conductor for his fare for the journey in the vehicle in which he then was, refused to pay. He tried then to leave the car, but the conductor prevented him by force, and called a policeman, who, after he had refused to give his name and address, took him to the station, the charge being that of refusing to pay his fare. The Court not only held the by-law to be reasonable, but held that the conductor had rightfully given him into custody. It is very difficult to understand what the reasons of the Court were. The plaintiff had not committed the offence with which he was charged, and, if any force was used, it was first used by the conductor in preventing the plaintiff from leaving the car. Again, what authority had the conductor to arrest for breach of the by-law? The Court's chief ground seems to have been the curious consideration that no other remedy was open to the company. If they had dismissed the action against the company on the ground

that the conductor was acting outside the scope of his authority, the Sect. 52. decision might be accepted as satisfactory.

In Barry v. Dublin United Tramways Co. (1890), 26 L. R. I. 150, the servant of a tramway company was directed to exclude the public from a street which the company were repairing. The company's Act empowered them to exclude the public, and subjected any person who interfered with their servants to a fine. The servant forcibly excluded a person, and then, on the arrival of a constable, gave him into charge for forcing his way into the street in question and for obstruction. This act was held to be outside the scope of the servant's employment, on the ground that the company themselves would have no power to arrest under such circumstances. So, too, would an arrest of a person be, apparently, if he merely refused to show his ticket and give his name and address. (Cook v. London Tramways Co. (1886), "Times" Newspaper, June 23.)

Arrest or detention by an officer or servant may, like any other acts, be ratified by his principal, and the general principles of ratification (see post, p. 244) apply. Cases where ratification of arrest was sought to be construed from subsequent letters of the principal are Roe v. Birkenhead, Lancashire and Cheshire Junction Railway Co. (1851), 7 Ex. 36; 21 L. J. Ex. 9, and Barry v. Dublin United Tramways Co., ub. sup. In Eastern Counties Railway Co. v. Broom (1851), 6 Ex. 314; 20 L. J. Ex. 196, ratification was sought to be concluded from the appearance of the company's attorney to conduct the charge against the person arrested; and in Knight v. North Metropolitan Tramways Co., ub. sup., from the approval given by an inspector of the company at the time of the arrest, from the grant of leave of absence to the conductor in order that he might attend the police-court, and from the presence of an inspector at the police-court, who, however, took no part in the proceedings.

bringing

tramway.

53. No person shall be entitled to carry or to require Penalty for to be carried on any tramway any goods which may dangerous be of a dangerous nature, and if any person send by goods on the any tramway any such goods without distinctly marking their nature on the outside of the package containing the same, or otherwise giving notice in writing to the book-keeper or other servant with whom the same are left at the time of such sending, he shall be liable to a penalty not exceeding twenty pounds for every such offence (t), and it shall be lawful for such promoters (u) or lessees (x) to refuse to take any parcel that they may suspect to contain goods of a dangerous