(His lordship referred to the pleadings, and continued):-
The primary question for determination would appear to be whether either the plaintiff's arrest and detention, or his subsequent prosecution, was at the instance of the Agent of the Company. If the arrest and detention, and/or the subsequent prosecution, be found to have been at the instance of the Agent, the subsidiary question will arise whether there was any legal justification for the Agent's conduct in either case.
(His lordship stated the sequence of events leading to the plaintiff's arrest, prosecution and acquittal: and continued):-
It now falls to be determined, firstly, how the plaintiff came to be arrested, that is to say, who was in the contemplation of law responsible for his arrest.
(His lordship then set out the evidence led by the plaintiff, and continued):-
Before examining the Agent's version of the circumstances leading to the plaintiff's arrest, let us first consider the contentions of learned Counsel for the plaintiff on this part of his case. He expressed reliance on the statement of law appearing at p. 805 of Clerk & Lindsell on Torts (10th ed.), as follows:—
"If a charge is made to a Police Constable and he thereupon makes an arrest, the party making the charge, if liable at all, will be liable in an action for False Imprisonment on the ground that he has directed the arrest, and therefore it is his own act, and not the act of the law."
[p.108]
Counsel further referred to the statement of the law at p. 276 (op. cit.), as follows:—
"It is not necessary that he should in terms have made a request or demand, it is enough if he makes a charge on which it becomes the duty of the constable to act."
Counsel contended that, as the Police Officers said in their evidence, the Agent definitely accused or charged the plaintiff to them with theft of the cases of beer, whereupon Sergeant Botchway was obliged to arrest him. Therefore, in law, the arrest was at the instance of the Company, according to the statement of the law to which Counsel had made reference.
It is to be observed, however, that the somewhat broad statement of the law at p. 276 (op. cit.) is significantly enough narrowed down in its application in the decided cases. Thus, the case of Hopkins v. Crowe ((1836) 4 Ad & E. 774, 111 E.R. p. 974) is referred to at the end of the statement of law above cited. In that case the decision (that the defendant was liable in trespass to the plaintiff's person) proceeded on
