Odger's English Common Law

FALSE IMPRISONMENT. 477
in obedience to a warrant issued by a competent tribunal, 1
though an action for malicious prosecution may possibly lie
against the person who improperly set that tribunal in motion. 2
But the Court that issued the warrant must have been com-
petent to deal with the case, and the arrest must have been
made in obedience to the warrant. " Whenever a warrant has
been issued to arrest a person charged with an offence in respect
of which he cannot be apprehended without a warrant, the police
officer must have the warrant in his possession at the time when
he executes it ; if he has not, the arrest will be illegal." 3
The warrant of the Speaker of the House of Commons, when issued in a
matter over which the House has jurisdiction, is to be construed on the
same principle as a mandate or writ issuing out of a superior Court of common
law, and it therefore affords a valid defence to an action for assault and
false imprisonment brought against the Serjeant-at-Arms, who acted in
obedience to it. 4
Again, where Richard Hoye was arrested on a warrant issued by mistake
against John Hoye, his father, it was held that he had a good cause of
action, even though he was the person against whom the warrant was
intended to have issued. 6
So, too, an arrest upon a warrant which turns
out to be not properly backed is illegal. 6
A person, who originates proceedings merely by stating his case to a Court
of justice, is not liable for false imprisonment should the Court order an
arrest, even though the proceedings leading to the arrest were erroneous
7 and without jurisdiction ; neither is one who prefers a complaint to a
magistrate and procures a warrant upon which the accused is taken into
custody, wheD the magistrate had in fact no jurisdiction. 8
A solicitor, however, by deliberately directing the execution of a bad
warrant, may render himself liable for false imprisonment. 9 But this will
not be so if he has merely set in motion a Court of competent jurisdiction
on behalf of his client, even though that Court may on his motion have
committed a trespass. Where, on the other hand, he admits his concur-
rence in the act complained of, he can only justify it by showing that he
acted under a legal authority. 10
i Daisies v. Fletcher (1863), 2 E. & B. 271.
2 See post, p. 546, and Austin v. Dowling (1870), L. R. B C. P. 534.
3 Per Mellor, J., in Codd v. Cabe (1876), 1 Ex. D., at p. 356.
* Howard v. Gosset (1845), 10 Q. B. 359 ; and see R. v. Wilkes (1763), 2 Wils.
151 ; Wilkes v. Wood (1763), 19 St. Tr. 1153 ; Entick v. Carrington (1765), 19
St. Tr. 1029; Sayre v. Earl of Rochford (1777), 20 St. Tr. 1285.
5 Hoye v. Bush (1840), 1 M. & Gr. 775 ; and see Grainger v. Hill (1838), 4
Bing. N. C. 212.
6 R. v. Cumpton (1880), 5 Q. B. D. 341.
1 Carratt v. Morley (1841), 1 Q. B. 18 ; Kelly v. Lawrence (1864), 3 H. & C. 1.
8 Brown v. Chapman (1848), 6 O. B. 365.
Green v. Elgie (1843), 5 Q. B. 99 ; Eggington v. Mayor of Lichfield (1855),
6 E. & B. 100.
w Bryant v. Clutton (1836), 1 M. & W. 408.