1. [Scott, J.-Even supposing the proof of malice to be necessary, would it not Be enough for our procedure to state facts from which malice might be inferred. Would it be necessary to aver malice. Here the plaintiff had paid the debt, and yet was arrested.]
2. Malice could not necessarily be inferred from such facts. A ~ mistake might have occurred, and, if so, here is no action. Malice need not be averred in words, but facts must be stated from which there can only be one inference. Otherwise malice must be expressly alleged. The Court will not infer it from the mere fact of arrest-Tebbutt v. Holt 1 Cr. & Kirw. 280, Moore v. Gardner 16 M.& W. 595 Medina v. Grove 10 Q.B. 152 Churchill v. Stggers 3 Ell. & Bl. 937 Phillips v. Naylor 4 H. & N. 565 Brasyer v. Maclean L.R. 6 P.C. 405 Huffer v. Allen L.R. 2 Ex. 15. These cases show that the mere fact of arrest after payment is not enough. The payment was not made to the first defendant himself, and the plaint does not allege that he knew of the payment.
3. The defendant made all due inquiry in good faith, and is not responsible for the mistake of the Court. Jarlton v. Fisher 2 Douglas 67l , Nearsly v. Keen 14 M. &W.; 822 Swart v. Jones 14 M. & W. 774 If the Court delegates the execution of a decree to its officers, the acts of such officers are the acts of the Court.
4. B. Tyabji for Spencer and Sadanand Esoba showed cause.- As regards my clients, whom the plaintiff for the first time by this summons seeks to make defendants, the suit if barred- Limitation Act XV of 1877, Section 22, and Schedule II, Articles 19 and 22. The arrest took place on 27th June, 1883, and this Summons is dated the 5th. July, 1884. Next, I contend that the wrong complained of in this suit comes within the term 'assault' in Section 402 of the Civil Procedure Code (Act XIV of 1882), and that such a suit cannot be brought by a pauper. As to the meaning of 'assault' see Addison on Torts (4th ed., 1873), p. 569, p. 596, and p. 606 , Chivers v. Savage 5 Ell. & Bl. 697; Brandt v. Craddock 27 L.J. Ex. 314; Penal Code, Sections 349-351. 'Assault' in Section 402 means all injuries affecting the person.
5. Apart from this objection the plaintiff has no cause of action against my clients. They took no part directly in his arrest. They merely signed certain documents, and he does not allege express malice against them. The damage suffered by the plaintiff - must be either to his estate or to his person. He has become insolvent, since his arrest, and his cause of actions if any, arising out of damage to his estate has passed to the official assignee-Indian Insolvent Act 11 and 12 Vie., c.21 Section 7; Griffiths on Bankruptcy, Vol. I, p. 302. As to damage to the person, it must be very small, as he was only under arrest for a short time. Unless the ,Court thinks he can recover over Rs. 2,000 for this, the High Court has no,, jurisdiction. The Court must see that there is a fair prima facie case-Sterling v. Cochrane 1 B L.R. 114.
6. Russel for the plaintiff in support of the summons-This is not a suit for malicious arrest, but for trespass to the person. The first defendant set the Court in motion, and is liable - Addison on Torts (5th ed., 1879), p. 653. The proceedings were illegal from the beginning, and the first defendant is responsible- Parsons v. Lloyd 3 Wils. 345, Barker v. Braham 3 Wils 368, Wilson v. Conyn 6 M. & G. 236 Jarmain v. Hooper 6 M. & Gr. 827 Bates v. Filling 6 B. & Cr. 38 Green v. Eljee 5 Q.B. 99 Codrington v. Lloyd 8 Ad. & E. 449.
7. As to the point of limitation raised on behalf of Spencer' and Sadanand Esoba, I submit the case comes within article 36, Schedule II of Limitation Act XV of 1877. The plaintiff has suffered in his reputation, and Section 24 of the Act applies.
8. In this suit the plaintiff claims Rs. '25,000 damages for his false imprisonment. I am now asked as Chamber Judge to reject the amended plaint on the ground that it does not disclose a sufficient cause of action. And further as regards the second and third defendants, I am asked to reject the suit as barred by limitation. As Chamber Judge I adjourned the case into Court for argument.
9. The facts set forth in the plaintiff are as follows: On the 27th June, 1883, the plaintiff, Fisher, was arrested by a bailiff of, the Small Causes Court by virtue of a writ for the sum of Rs. 133-12-0, the amout of a decree obtained by Pearse against Fisher on the 2nd May, 1883. The present plaintiff, Fisher, at the time of his arrest informed the bailiff that the money had been already paid; and, as a matter of fact, it had been paid. In spite of this statement, the bailiff, on Fisher saying He had not the receipt of the payment, refused to raise the arrest until the money was paid under protest, which was done immediately. Thus the imprisonment lasted only a few minutes, as appears from the correspondence. The mistake was discovered, end the money repaid the following day.
10. The amended plaint further states that the third defendant, as cashier of the Court, had certified to the defendant Pearse's agent the non-payment of the decree; and that the second defendant, as chief clerk of the Court, had upon that certificate issued the said writ of arrest under his hand and under the seal of the Court.
11. The original judgment and warrant were produced before me. The judgment runs as follow: 'In the Court of Small Causes.- Judgment for the plaintiff. Debt and costs Rs. 133-12-0, ordered by the said Court to be paid to the clerk at his office by the said A. Fisher on or before 10th May, 1883. Term of imprisonment ninety days. Given under my hand this 2nd day of May, 1883. -N. Spencer, Judge.' Thus eight days were given for payment, and imprisonment sanctioned on default of payment after that date. The warrant is entitled in 'the Court of Small Causes,' and it is given under the seal of the Court. It is a judicial order issuing from the Court. After receiving the judgment and non-payment, the Court 'commands the bailiff or bailiffs' to arrest the defendant in default of payment. I have already stated that it was issued by the chief clerk on the certificate of the cashier that the debt had not been paid. Pearse's action in the matter only amounted to a request that warrant should issue if payment had not been made.
12. The further facts necessary for my decision are as follows: In March, 1884, the plaintiff presented a petition for leave to sue in forma pauperis, in which Pearse was made sole defendant. On the 21st April, 1884, he gave the requisite statutory notice to the cashier and chief clerk that he intended to add them as parties. On the 5th July, 1884, he obtained a Judge's summons calling upon them to show cause why the amended plaint snaking them party-defendants should not be placed on the file of the Court instead of the original petition.
13. These are the facts. I will now deal with the law. First as regards Pearse. Mr. Inverarity argued that no cause of action 'was shown, as there was no allegation of (1) malice, and (2) of the absence of reasonable cause for the arrest. I think confusion was here made between actions of malicious arrest and malicious prosecution, and an action for false imprisonment. The latter action is founded on the common law right of every man to the liberty of his person, and every illegal detention affords grounds for such an action (Blackstone's Commentaries by Stephen Volume III, page 893). Malice and want of probable cause need not be alleged in the plaint, although the absence of malice and existence of probable cause are fair grounds of defence. In Bird v. Jones 7 Q.B. 743 the principle is thus stated: 'When a total restraint for some period, however short, is put upon the liberty of another without sufficient reason, an action lies for the infringement of the right.' As to what constitutes an imprisonment, Grainge v. Hill 4 B N.S. 212 says, where a bailiff tells a person that he has a writ against him and thereupon such person peaceably accompanies him, that constitutes an imprisonment '
14. In the present case the facts clearly show an imprisonment. The question, no doubt, is whether they do not also show the defendant, Pearse, to have been justified in what he did under the circumstances of the case. Great distinction is made by the authorities between the case of a warrant of a Court with jurisdiction and a warrant of a Court without jurisdiction. The first case on the point is the Marshalsea case 10 Rep., 76 (a), and it has since been invariably followed: see Morrell v. Martin 3 M. & G. 595 Per Tindal, C.J.. The principle there laid down is that when a Court of competent authority has disposed of the matter erroneously, then the party who, takes out the warrant is not liable; but when the Court has no jurisdiction to issue the warrant, then the whole proceeding is coram non judice and the parties are liable. Now, in this case the Court of Small Causes had clearly jurisdiction of the matter, which was an ordinary money claim of Rs. 131, but it acted erroneously in issuing the warrant. Mr. Russell for Fisher, however, urged the principle to be found in another set of cases of which Barker v. Braham 3 Wils. 368 is the earliest. It is laid down in that case: 'the mere circumstance of the writ issuing by the authority of the Court will not protect either the plaintiff or his attorney for' answering in damages as wrong-doers, if it be issued illegally.'' (See also Carrot v. Small 9 East. 330King v. Harrison 15 East. 612 Bates v. Pilling 6 B. & C. 38 Codrington v. Lloyd 8 Ad. & Ell. 449 Prentice v. Harrison 4 Q.B. 852 Collett v. Forest 2 H. & N. 361, Brooks v. Hodgkinson 4 H. & N. 712. Bates v. Pilling was especially urged as being on all fours with the present case. ,But. there Pilling had not only taken out execution but he had also signed judgment for a debt which had been paid. In all the cases cited, and others I have consulted, the party, not the Court, appears to have taken the initiative and assumed the responsibility. There is no case which says that where the officers of the Court and not the party have caused the error, the latter shall still be held liable. In fact, the consensus of authority is the other way. The latest case on the point is Smith v. Sydney L.R. 5 Q.B. 203. There the defendant had arrested the plaintiff on a debt of 34, for which he had signed judgment in default of appearance. The judgment was subsequently set aside on the ground that 16 was only due. As arrest was not legal for sums below 20, an. action for false imprisonment was instituted. But it was held not to lie, because, as Mellor, J., puts it, 'there was nothing to show that the defendants were legally blameable for what they did.' Lush, J,, says: 'The authorities distinguish between an act of Court and act of parties, and it is only when proceedings are set aside on the latter ground that the party is made a wrong-doer.' In Williams v. Smith 14 C.B. N.S. 596 the same principle is laid down. In that case an attachment was obtained by Smith which was afterwards set aside on appeal. But fasle imprisonment was held not to lie. Williams, J., said: 'If the attachment in this case had been set aside on the ground of irregularity, or 'that it was issued in bad faith, or in any other way equivalent to irregularity, I should have thought that both attorney and client would be liable for any imprisonment which took place under it.'
15. In the present case there was no bad faith, no fault, no irregularity of the party. He made the non-payment of the judgment, of which he had the best possible evidence, in the certificate of the proper officer, the foundation and condition of his request for a warrant. Indeed, I fail to see how he could have acted more regularly. The error was wholly and entirely the error of the officers of the Court. But the imprisonment took place under a warrant of the Court issued in the regular manner. That being so, and the Court being one of competent jurisdiction, I am of opinion that the amended plaint, taken as a whole, must be rejected. The imprisonment set forth is justified by the other facts it discloses. As regards Pearse, therefore, no sufficient ground of action is shown.
16. As regards the second and third defendants, the liability is of a different character. The error, which gave rise to these proceedings, did no doubt, arise from some fault on the part of some official of the Small Causes Court. But I am met on the threshold by an objection I am bound to consider. It was argued that this suit against them is barred by limitation, under article 19 of the second schedule read with Section 22 of the Act. Article 19 says that a suit for compensation for false imprisonment is barred after the lapse of one year from the time the imprisonment ended. The imprisonment in this case ended on the 27th June, 1883. Section 22 of the Act says that when parties are added after the institution of the suit, the suit shall as regards them be deemed to have been instituted when, they were made a party. Now the Judge's order calling upon them to show cause why they should not be made parties is dated the 5th July, 1884. Up to that date, therefore, they were not made parties. As that date is more than a year from the date of the false imprisonment, article 19 of the second schedule applies, and the plaint must be as against these two defendants on the ground that the suit is barred by lapse of time.