WHEELER

v.

BRANS

COMBE.

[ 380]

the defendant or avowed in his name. (He was then stopped by the COURT.)

LORD DENMAN, Ch. J.:

A tenant is often placed in an awkward position when called upon to elect between conflicting claimants. Here the tenancy was originally to the mortgagor; and the instrument authorizing the mortgagee to receive the rents does not affect to make any change in the tenancy: the payment of rent to him from time to time under such an authority did not create the relation of landlord and tenant between him and the plaintiff. This disposes of the issue under non tenuit. As regards the plea of riens in arrere, the evidence shows that rent was in arrear: if there was such a binding engagement between the parties, for the payment of the rent to the mortgagee, as would be an answer to the defendant's claim of rent from the plaintiff, that ought to have been made the subject of a distinct plea: no case has been cited showing that such defence is available under riens in arrere.

WILLIAMS, J. concurred.

COLERIDGE, J.:

I am of the same opinion. The documents show the intention of the parties not to have been to dispose of the reversion, but to make the mortgagee the agent or bailiff of the mortgagor, with authority to receive the rents. It is not necessary to say with what interest this authority was coupled: it was probably a sufficient interest to make the authority irrevocable. But, assuming that to be so, and to be a good answer for the plaintiff, it is an answer which does not arise on the plea of riens in arrere at the most, the facts show that rent was in arrear, which, under the authority, the plaintiff ought to have paid to another person.

WIGHTMAN, J.:

I am of the same opinion as to the plea of non tenuit. As to the plea of riens in arrere, I think that such an authority would probably be irrevocable, and that, if the plaintiff had paid the rent to the mortgagee, this might have fallen within the cases which have been cited but the difficulty is that the rent has not been paid if the facts amount to an answer, they ought to have been pleaded in excuse of non-payment to the defendant.

LORD DENMAN, Ch. J.:

None of us mean to say that the authority in this case would support such a plea. A mere authority to pay is very different from an engagement binding on all parties.

Rule absolute.

IN THE EXCHEQUER CHAMBER.

(ERROR FROM THE QUEEN'S BENCH.)

MAGNAY, ROGERS, AND WALTER v. BURT (1). (5 Q. B. 381-396; S. C. D. & M. 652.)

No action lies against a sheriff or his officer for arresting a party attending under a summons from a Court, though it be alleged that the party was thereby privileged, and that the defendants knew the fact, and made the arrest maliciously.

If a party be arrested, and the Court of Review order him to be discharged on the ground that he was in attendance under order of that Court, but the officer arresting does not discharge him, the remedy (if any) against the officer is in trespass, not case, though malice be alleged.

So held by the Court of Exchequer Chamber, reversing the judgment of the Court of Queen's Bench.

CASE, by the defendant in error against the plaintiffs in error.

The declaration charged that, whereas heretofore, and before and at the time of the committing of the grievance hereinafter mentioned, the defendants Magnay and Rogers had been and were Sheriff of Middlesex, and the defendant Walter was then an officer of the said other defendants; and that, before the committing &c., on &c., an order was made by the Court of Review, in the matter of one Henry Charles Curlewis, of &c., against whom a fiat in bankruptcy had issued, whereby the said Court of Review did order that it be referred to William Scrope Ayrton, Esquire, an officer of her Majesty's Court of Bankruptcy, to inquire and state whether, at the date and suing forth of the said fiat, there was any and what debt due from the said H. C. Curlewis to plaintiff, the petitioning creditor under the said fiat, in the said order mentioned, sufficient in amount to support the said fiat, and that, for better making the said inquiry, all necessary and proper parties were severally to be examined before the said W. S. Ayrton, upon interrogatories or otherwise, touching the matters in question, as the said W. S. Ayrton should think fit, &c., and that the said W. S. Ayrton was to be at liberty to examine the said H. C. Curlewis, *the said petitioner in (1) Commented on in Ames v. Waterlow (1869) L. R. 5 C. P. 53, 63.-J.¡G. P.

1843. Nov. 28.

[381]

[ *382 ]

the said order mentioned, and the said plaintiff, the said respondent in the said order mentioned, or either of them as by the said order, &c., will more fully appear.

That afterwards, and before the committing of the grievances &c., to wit on &c., the said W. S. Ayrton did, in pursuance of the said order, by a summons in writing signed by the said W. S. Ayrton, summon plaintiff (defendant in error) to appear before him on Tuesday, the 28th day of June, 1842, at eleven o'clock in the forenoon, at the office of the Registrar in Bankruptcy, Quality Court, Chancery Lane, there to be examined by or before him the said W. S. Ayrton in the aforesaid matter of the said H. C. Curlewis. That afterwards, and before the committing &c., to wit on &c., plaintiff was duly served with the said summons, and in obedience thereto, he did afterwards, to wit, at eleven o'clock on &c., the day and year in the said summons mentioned, attend at the said Registry Office in his own person before the said W. S. Ayrton, in the aforesaid matter, under the aforesaid reference; and that afterwards, to wit on the day and year last aforesaid, and after plaintiff had been attending at the Registry Office before the said W. S. Ayrton for the purpose aforesaid, and whilst he was leaving the said Registry Office for the purpose of returning to his place of abode, and was returning to his place of abode, defendants, so being such sheriff and such officer as aforesaid, and before any reasonable time had elapsed for the return of plaintiff to his said place of abode, well knowing that plaintiff was then privileged from arrest, and disregarding their duty in that behalf, wrongfully and maliciously took and arrested plaintiff by his body, and then kept and detained plaintiff in custody for a space of time, to wit five days, after defendants had been requested to discharge plaintiff from and out of their custody, under and by virtue of a certain writ of capias ad satisfaciendum, directed to defendants Rogers and Magnay as such Sheriff of Middlesex, whereby our said Lady the Queen commanded the said sheriff that he should take plaintiff &c., so that he might have his body before the Barons of her Majesty's Exchequer, &c., to satisfy one S. L. Curlewis the sum of 300l., which by the consideration and judgment of the said Court was then and there adjudged to the said S. L. Curlewis for his damages &c., as by the record &c. That afterwards, to wit on &c., by a certain order then made by the said Court of Review in the matter of the said H. C. Curlewis, a bankrupt, bearing date the day and year aforesaid, it was ordered

that the Sheriff of Middlesex should discharge plaintiff out of the
custody of defendants Magnay and Rogers, as such Sheriff of
Middlesex as aforesaid, in which custody plaintiff was detained at
the suit of the said S. L. Curlewis: of all which premises defen-
dants had notice. Yet defendants, further disregarding their duty
in that behalf, did not nor would then discharge plaintiff out of
the custody of defendants Magnay and Rogers as such Sheriff of
Middlesex as aforesaid, but, on the contrary thereof, wrongfully,
unlawfully and maliciously, and against the will of plaintiff, kept and
detained plaintiff in their custody for a long time, to wit for a space
of five hours, after they had notice of the said last mentioned order.
Plea, by Magnay and Rogers, Not guilty. Issue thereon.
Pleas by Walter. 1. Not guilty. Issue thereon. 2. That Walter
had not notice of the order of the Court of Review. Issue thereon.
On the trial, before Williams, J., at the Middlesex sittings in
Hilary Term, 1843, a verdict was found for the plaintiff below on
all the issues, with 251. damages generally. In the same Term (1)
Kennedy moved for a rule for a new trial (on account of an alleged
misdirection), or to arrest the judgment on the grounds stated in
the argument on error. The Court refused to arrest the judgment,
being of opinion that an action on the case lay, since it appeared
that the sheriff had maliciously and knowingly transgressed his
duty. PATTESON, J. referred to the last sentence of Lord MANSField's
judgment in Tarlton v. Fisher (2). The Court, also, after time taken
to consider, refused the rule for a new trial. Judgment was entered
for the plaintiff below.

Error on this judgment having been brought in the Exchequer
Chamber, the case was argued in last Easter vacation (May 13th,
1843), before Tindal, Ch. J., Erskine and Cresswell, JJ., and Parke,
Alderson and Rolfe, Barons.

Kennedy for the plaintiffs in error (defendants below):

The declaration contains two counts, or two breaches, but is insufficient in both.

As to the first count or breach. First, no action lies at all against the sheriff, for arresting a privileged person, at the suit of such person. In Tarlton v. Fisher (2), Cameron v. Lightfoot (3) and Crossley v. Shaw (4) it was held that trespass does not lie. The

Before Lord

(1) January 13th. Denman, Ch. J., Patteson, Coleridge

and Wightman, JJ.

(2) 2 Doug. 671.
(3) 2 W. Bl. 1190.
4) 2 W. Bl. 1085.

MAGNAY

x.

BURT.

[ 384]

MAGNAY

t.

BURT.

[ *385 ]

[ *386 ]

reasons given by the Court in these cases show that no action at all lies. In Tarlton v. Fisher (1), indeed, Lord MANSFIELD said: "Whether, if the defendants had done any thing oppressive, with full notice of all the circumstances, an action on the case might be maintained, would be another question." But WILLES, J., who thought the action would lie in the case of an arrest after notice (owing to the particular words of the Act on which the plaintiff there relied, stat. 20 Geo. III. c. 64, s. 2), or an unreasonably long detainer after arrest and subsequent notice, took for granted that the form would be trespass. Indeed, in the case of an unreasonably long detainer, the plaintiff might reassign the excess, which shows that it is a substantive trespass. The party there was not, properly speaking, privileged, but made free from arrest by statute. The objection to the action, in any form, is that the privilege is not that of the party arrested but of the Court. The proper proceeding is a writ of privilege, or a motion for the discharge of the party: Walters v. Rees (2). BULLER, J. says, in Tarlton v. Fisher (1), that, in cases of bankrupts and insolvents, "hundreds have been arrested, but there never was an instance of an action against the sheriff or his officers in such cases." Here the declaration alleges knowledge on the part of the plaintiffs in error: that means, knowledge of the facts stated in the inducement, and that this defendant in error had attended under order of the Court, and was returning. But they did not know whether the defendant would claim his privilege, nor whether, if he did, the Court would allow it. It is often disallowed, as where the attendance is not bonâ fide: Meekins v. Smith (3). And on these grounds the decision in Cameron v. Lightfoot (4), which was a case of privilege, is expressly placed. The sheriff would be liable for an escape if he abstained from arresting in a case where the privilege was not ultimately allowed; and he is not compellable to exercise the discretion at his own risk, as is urged by ASHHURST, J. in Tarlton v. Fisher (1). In Cameron v. Lightfoot (4) the Court referred to two cases, Clerke v. Molineux (5) and Vandevelde v. Lluellin (6), from which it appears that the arrest of a privileged person is not void. In Sherwood v. Benson (7) the sheriff had released a prisoner on production of his certificate in bankruptcy; and, an action for an escape having

(1) 2 Doug. 671.
(2) 4 Moore, 34.
(3) 1 H. Bl. 636.
(4) 2 W. Bl. 1190.

(5) 1 Keb. S45; S. C. Sir T. Ray. 100;

Lev. 159; 1 Sid. 269.

(6) 1 Keb. 220.

(7) 4 Taunt. 631.