1870.

AUSTIN

v.

DOWLING.

judge to nonsuit the plaintiff, on the ground that the plaintiff's case was a case of malicious prosecution, and that, even if there was any evidence which would support an action for false imprisonment, the learned judge could not properly sever the evidence that supported an action for false imprisonment from the evidence which supported a case for malicious prosecution.

The judge, after hearing the counsel for the plaintiff, nonsuited the plaintiff, upon the ground that the evidence which had been produced disclosed and supported a case of malicious prosecution, and held that he therefore had no jurisdiction. He also ruled that, although there was evidence in support of a case of false imprisonment, inasmuch as the plaintiff was given into the custody of the sergeant of police by the defendant's wife, and so continued in the custody of the police up to the time when the charge-sheet was signed by the defendant; yet that he ought not, having regard to the particulars of demand, and as the jury had heard all the evidence, and as the imprisonment before and the imprisonment after the charge-sheet was signed were substantially parts of one and the same continuous transaction, to sever the evidence which supported a case of false imprisonment from the evidence which supported a case of malicious prosecution.

The grounds of appeal were: (1) That the judge was wrong in point of law in holding that he had no jurisdiction to hear or try the cause; but that, on the contrary, he had cognizance thereof wholly or in part, as being in fact and in law an action for false imprisonment: (2) That the judge was wrong in point of law in withdrawing the case from the consideration of the jury and ordering a nonsuit to be entered.

J. F. Norris, for the appellant.-This was essentially a case of false imprisonment: and not of malicious prosecution. The distinction between the two descriptions of action is well pointed out in the opinions of Lords Mansfield and Loughborough in Johnstone v. Sutton 1.

[WILLES, J., referred to Grinham v. Willey, where the mere act of signing the charge-sheet at the request of the constable was held not sufficient to render the defendant liable for a false imprisonment or malicious prosecution.]

1 T. R. 493, 544.

2 4 H. & N. 496; 28 L. J. (Ex.) 242.

The plaint here was for false imprisonment only: Chivers v. Savage1; Brandt v. Craddock2; and the judge ought not to have received evidence of malicious prosecution. In Jones v. Currey 3, the plaint involved a charge of malicious prosecution.

Arundel Rogers, for the respondent.-It is not competent to the judge of the County-court to try an action for malicious prosecution (9 & 10 Vict. c. 96, s. 58): nor was it competent to the plaintiff to waive a part of his cause of action so as to give the Court jurisdiction. It was upon this principle that the Court of Exchequer in Hunt v. North Staffordshire Railway Co. held that a prohibition was properly issued to restrain a County-court from proceeding on a plaint for the recovery of the costs of a defence before magistrates on a summons for an alleged offence against the bye-laws of a railway company,-it being in substance a plaint for a malicious prosecution.

[WILLES, J.-There can be no malicious prosecution until the parties come before a Court or a judicial officer. In the case last cited the man never was in custody at all; it was malicious prosecution or nothing.]

Signing the charge-sheet was the commencement of a malicious prosecution. At all events, the attendance before the magistrates to support the charge was. And as soon as the evidence which would sustain the charge of malicious prosecution came out, the judge properly nonsuited the plaintiff.

Norris was not called upon to reply.

WILLES, J.-It is clear that there was some evidence of a false imprisonment, an imprisonment without justification. The defendant's wife took it into her head that she had a right to give the plaintiff into custody because he broke into a room in the house in order to re-possess himself of his own property. In this she was mistaken; for the plaintiff was guilty of nothing felonious or malicious. In Patrick v. Colerick 5, it was held that a plea to a declaration in trespass for breaking and entering the plaintiff's close, that the defendant, being possessed of certain goods of the plaintiff, without his leave and against his will took the goods and

1870.

AUSTIN

v.

DOWLING.

1870.

AUSTIN

v.

DOWLING.

Willes, J.

placed them on the close in the declaration mentioned, wherefore
the defendant made fresh pursuit, and entered to retake the goods,
was a good plea and a good justification of the entry on the
plaintiff's close. The plaintiff, having been so wrongfully given
into the custody of a police-constable, was taken to the police-
station. But for the subsequent act of the defendant, the plaintiff
would not have been detained there. If the defendant had merely
signed the charge-sheet, that, according to Grinham v. Willey1,
would not have amounted to more than making a charge against
one already in the custody of a minister of the law who intended
to keep him there. But it is found in the case that, though the
defendant gave no express direction for the plaintiff's detention, he
was expressly told by the inspector on duty that he (the inspector)
disclaimed all responsibility in respect of the charge, and that
he would have nothing to do with the detention of the plaintiff
except on the responsibility of the defendant; and that the
inspector would not have kept the plaintiff in custody unless the
charge of felony was distinctly made by the defendant. Signing
the charge-sheet with that knowledge, therefore, was the doing of
an act which caused the plaintiff to be kept in custody. In West
v. Smallwood 2, the defendant having accompanied the constable
charged with the execution of a warrant against the plaintiff, and
pointed out to him the person to be arrested, this was held to be
evidence to go to the jury of a participation in the arrest. The
judge of the County-court, therefore, was right in holding that there
was evidence in support of a case of false imprisonment. How
long did that state of false imprisonment last? So long, of course,
as the plaintiff remained in the custody of a ministerial officer of
the law, whose duty it was to detain him until he could be brought
before a judicial officer. Until he was so brought before the judi-
cial officer, there was no malicious prosecution. The distinction
between false imprisonment and malicious prosecution is well illus-
trated by the case where, parties being before a magistrate, one
makes a charge against another, whereupon the magistrate orders
the person charged to be taken into custody and detained until the
matter can be investigated. The party making the charge is not
liable to an action for false imprisonment, because he does not set
a ministerial officer in motion, but a judicial officer. The opinion
1 1 4 H. & N. 496; 28 L. J. (Ex.) 242.
2 3 M. & W. 418.

1870.

v.

DOWLING.

Willes, J.

and judgement of a judicial officer are interposed between the charge and the imprisonment. There is, therefore, at once a line drawn AUSTIN between the end of the imprisonment by the ministerial officer and the commencement of the proceedings before the judicial officer. It is fallacious to inquire whether or not the one is severable from the other, until you find some inseparable connexion between them. It may very well happen in the superior courts, which have jurisdiction over both descriptions of action, where the plaintiff, having been at once taken before a magistrate, may be content to bring his action for false imprisonment only. In such a case,—which must be within the memory of all of us,-the judge would tell the jury to give damages for the false imprisonment only, and not for what came under the cognizance of the magistrate. What did the judge do here? He ruled that, although there was evidence in support of a case of false imprisonment, yet that he ought not, having regard to the particulars of demand, and as the jury had heard all the evidence, and as the imprisonment before and the imprisonment after the charge-sheet was signed were substantially parts of the same continuous transaction, to sever the evidence which supported a case of false imprisonment from the evidence which supported a case of malicious prosecution. The former part of the ruling is quite right: the latter part is wrong in two particulars: in the first place, the judge seems to have thought that there was an inception of the malicious prosecution at the time the charge-sheet was signed; and, in the second place, that the false imprisonment merged in that. But, for the reasons already assigned, it was false imprisonment all through, so long as the matter remained in the hands of the ministerial officer. If it were a ground of nonsuit that, either for want of care on the part of the judge, or the absence of objection on the part of counsel, evidence is let in of a matter which is beyond the jurisdiction of the County-court judge, the number of nonsuits would be greatly increased. The proper course in such a case is, to warn the jury to exclude such evidence from their minds in considering the question of damages. There having been no contingent assessment of damages here, all we can do is to set aside the nonsuit and direct a new trial, with costs.

KEATING, J., concurred, and MONTAGUE SMITH, J., delivered judgement to the same effect.

1883.

ABRATH

V.

NORTHEASTERN RAILWAY COMPANY.

1883. ABRATH V. NORTH-EASTERN RAILWAY COMPANY,
L. R. 11 Q. B. D. 440, C.A.

[Affirmed in the House of Lords, 11 App. Cas. 247.]

In an action for malicious prosecution the plaintiff must establish, (1) that he was innocent of the crime of which he was accused, (2) that the defendant instituted the prosecution without reasonable and probable cause, and (3) that the defendant was actuated by malice; and the burden of proof of all these issues is upon the plaintiff.

Action for malicious prosecution.

At the trial before CAVE, J., and a jury, at the Durham Summer Assizes, 1882, the following material facts were proved in evidence, or admitted:

:

On September 10, 1880, a collision occurred at Ferry Hill station, on the defendants' railway, and one M. McMann alleged that he had thereby sustained injuries. McMann was attended by the plaintiff, G. A. Abrath, a doctor of medicine and surgery, and McMann brought an action against the defendants to recover damages. The action by McMann stood for trial at the Northumberland Summer Assizes, 1881, but it was settled by the defendants paying to the plaintiff McMann, £725 damages, and £300 costs.

After the settlement, the directors of the defendants' company received certain information from Rayne, a surgeon, who was the medical adviser of the railway company in reference to accidents, and who was authorized to employ detectives on behalf of the company. The directors thereupon employed a solicitor named Dix, to see certain persons and take their statements. Some of these persons were relatives of McMann, and others were well acquainted with him, and their statements, if true, showed that a fraud had been perpetrated on the defendants; that McMann had not been seriously injured in the collision, that the injuries of which McMann had complained had been wilfully produced by the present plaintiff, Dr. Abrath, with the consent of McMann, for the purpose of getting money from the defendants. These statements were submitted to the directors of the defendants' company, who thereupon ordered that the opinion of counsel should be taken, and counsel advised that there was a good case for prosecuting a charge of conspiracy against McMann and Dr. Abrath, his medical adviser. Two eminent medical men were of opinion that the case of the