CHAPTER II.

EXCEPTIONS AND LIMITATIONS.

CERTAIN statutory provisions with regard to actions against servants of the Crown require notice here.

Where, on the trial of an information or complaint for the condemnation of goods seized as forfeited under any Act relating to Inland Revenue, judgment is given for the claimant, if the Court or judge certifies that there was probable cause for making the seizure, no officer or person who made or assisted in making the seizure shall be liable to any civil or criminal proceeding on account of the seizure or detention of the goods. Where any civil or criminal proceeding is brought against any officer or person employed in relation to Inland Revenue on account of the seizure or detention of any goods, and a verdict or judgment is given against the defendant, if the Court or judge certifies that there was probable cause, the plaintiff shall not be entitled to any damages besides the goods seized or their value, nor to any costs, and the defendant shall not be liable to any punishment. (Inland Revenue Regulation Act, 1890, s. 29, below, p. 742.) So the Customs Consolidation Act, 1876, s. 267 (p. 727).

As to the defence of actions against collectors, see the Taxes Management Act, 1880 (43 & 44 Vict. c. 19), s. 20 (7), (8).

Under the Foreign Enlistment Act, 1870 (33 & 34 Vict. c. 90), ss. 28, 29, subject to the provisions of sects. 23 and 24 of the Act as to the award of damages in certain cases by the Admiralty Court, no damages shall be payable, and no officer or local authority, as defined in sect. 21, shall be responsible, either civilly or criminally, in respect of the seizure or detention of any ship in pursuance of the Act. The Secretary of State or chief executive authority, as defined in sect. 26, shall not be responsible in any action or other legal proceeding whatsoever for any warrant issued by him in pursuance of the Act.

A similar provision is contained, with respect to officers and local authorities, in the Pacific Islanders Protection Act, 1872 (35 & 36 Vict. c. 19), s. 20. (See Burns v. Nowell (1880), 5 Q. B. D. 444; 49 L. J. Q. B. 468.)

"Every prison officer, while acting as such, shall, by virtue of his appointment, have all the powers, authorities, protection

and privileges of a constable." (Prison Act, 1898 (61 & 62 Vict. c. 41), s. 10.) See also Butt v. Newman (1819), Gow, 97. As to the meaning of "prison officer," see sect. 14 (2) of the Prison Act, 1898, and the Prison Act, 1865 (28 & 29 Vict. c. 126), s. 10. The Constables Protection Act, 1750 (24 Geo. II. c. 44), s. 6, provides that no action is to be brought against a constable for anything done in obedience to any warrant under the hand or seal of a justice, until demand and refusal of a copy of the warrant as therein mentioned.

Several of the cases relating to the liability of the governor of a prison will be found cited in Demer v. Cook (1903), 88 L. T. 629, and add to these Aaron v. Alexander (1811), 3 Camp. 34; M'Combe v. Gray (1879), 4 L. R. Ir. 432; Moone v. Rose (1869), L. R. 4 Q. B. 486; 38 L. J. Q. B. 236; and Thomas v. Hudson (1845), 14 M. & W. 353; 14 L. J. Ex. 283.

Freedom from arrest for debt in the case of seamen and marines is provided for by sects. 97, 98 of the Naval Discipline Act, 1866 (29 & 30 Vict. c. 109), subject as therein mentioned, and soldiers of the regular forces cannot be taken out of the service by civil process or compelled to appear in person before a Court of law except on account of a charge of, or conviction for, crime, or on account of any debt or sum exceeding 307. over and above all costs of suit, by sect. 144 of the Army Act, 1881 (44 & 45 Vict. c. 58), as amended by sect. 4 (4) of the Army (Annual) Act, 1882 (45 & 46 Vict. c. 7), subject as therein mentioned.

The limitation of actions against servants of the Crown in respect of their public duties is now governed generally by the Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61), s. 1, which is as follows: "Where after the commencement of this Act, any action, prosecution, or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance, or execution, or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty, or authority, the following provisions shall have effect:

“(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect, or default complained of, or, in case of a continuance of injury or damage, within six months next after the ceasing thereof:

"(b) Whenever in any such action a judgment is obtained by the defendant, it shall carry costs to be taxed as between solicitor and client:

"(c) Where the proceeding is an action for damages, tender of amends before the action was commenced may, in lieu of or in addition to any other plea, be pleaded. If the action was commenced after the tender, or is proceeded with after payment into Court of any money in satisfaction of the plaintiff's claim, and the plaintiff does not recover more than the sum tendered or paid, he shall not recover any costs incurred after the tender or payment, and the defendant shall be entitled to costs, to be taxed as between solicitor and client, as from the time of the tender or payment; but this provision shall not affect costs on any injunction in the action:

“(d) If, in the opinion of the Court, the plaintiff has not given the

defendant a sufficient opportunity of tendering amends before the commencement of the proceeding, the Court may award to the defendant costs to be taxed as between solicitor and client.

"This section shall not affect any proceedings by any Department of the Government against any local authority or officer of a local authority."

By sect. 3, the Act does not apply to any proceeding, in respect of the matters above referred to, under an Act of Parliament which applies to Scotland only, and contains a limitation of the time and other conditions for the proceeding.

As to the method of calculating the time in actions against revenue officers for seizure, see Magrare v. Gilbourne (1794), Ridg. L. & S. 135, and Wilchkin v. Gahan (1795), Ridg. L. & S. 591.

The statute was held to apply to an action for damages against a regiment of volunteers and its commanding officer in Wilson v. 1st Edinburgh City Royal Garrison Artillery Volunteers (1904), 7 F. 168.

Sect. I of the Act apparently does not affect the general principle as to Crown costs so as to make costs payable by or against the Crown where they would not otherwise be payable. (See above, pp. 613, 621.) It seems only to affect the quantum of costs in cases where they would be payable apart from the statute.

The Act, by sect. 2 and Schedule, must be taken apparently to repeal, inter alia, sect. 20, sub-sects. (1) to (6) inclusive, of the Taxes Management Act, 1880 (43 & 44 Vict. c. 19), though, as drawn, it fails to effect its apparent purpose.

In the case of proceedings in respect of matters under the Army Act, 1881 (44 & 45 Vict. c. 58), sect. 170 of that Act, as amended by the Army (Annual) Act, 1894 (57 & 58 Vict. c. 3), s. 7, contains provisions similar to those of the Public Authorities Protection Act, 1893,

s. 1, sub-ss. (a) and (c). It further provides that such proceedings, and also actions against a member or minister of a court martial in respect of a sentence of such court, or anything done by virtue or in pursuance of such sentence, shall be brought in one of the superior Courts of the United Kingdom (which Court shall have jurisdiction wherever the matter complained of occurred), or in a supreme Court in India, or in any Colonial Court of superior jurisdiction, if the matter occurred within the jurisdiction of such Court, and in no other Court whatsoever.

APPENDIX.

Statutes and Rules.

33 HEN. VIII. c. 39.1

The Byll for thestablishment of the Courte of Surveyo's.

1-35. [1-49 (Ruff.), repealed by the Statute Law Revision Act, 1863 (26 & 27 Vict. c. 125).]

be made to

of statutes

heirs.

36. AND where divse and sondry obligacons and specialties here- Bonds, &c. tofore have been made to divse psons, part of theym to the use of made to certain persons to King Henry the vijth father of o nowe moost gracious soveraunde the King's [lyeg2] lorde, and pte of theym to the use and behoffe of or said use; [nowe2] soveraigne lord; be it enacted by the King of soveraigne All bonds to lorde wt the assent of the lordes spuall and temporall and the cōmons the King shall in this present Pliament assembled, and by thauctoritie of the same, him in his that all obligacons and specialties whiche aft the first daie of Maie own name, next cōmyng shalbe made for any cause or causes towching or in any and shall be wise concnyng the King moost royall Matie or his heyres, or to his in the nature or theyr use comodytie or behoofe, shalbe made to his Highnes and staple, and to his heires Kinge in his or their name or names by these wordes, payable to the Dno Regi, and to non other pson or psons to his use, and to be paied King and his to his Highnes by these wordes, Solvend eidem Dno Regi, hered vel executoribz suis, wyth other wordes used and accustumed in coōmon obligacons; and that all suche obligacons and specialte so to be made, shalbe good & effectuall in the lawe to all p'poses and intente and shalbe of the same nature kinde qualitie force and effect to all intente and purposes as the wrytinge obligatory takyn and knowledged according to the Statute of the Staple at Westm, hath at any tyme before the making of this psent Act been takyn used excysed and executed agenst any [laye2] pson or psons; any lawe usage or custome to the contrary therof notw'standing. And that all suche No bond to obligacons and specialties, the dett whereof being not payed nor the King's contented in the liff of the King, shall come remayne and bee use in the to the heires or executors of the King at the free libtie disposicon persons; assignement and appointement of the same King to whome suche obligacons or specyalties shalbe made as is aforesaid; and if any pson

1 From the original Act in the Parliament Office.

2

printed copies omit.

name of third