3. If the certificates and order are in legal form, and were made and given bona fide, no action lies for the capture or detention of Mr. Hardie.
“Why it is dead against me,” said Alfred. “There goes the one rotten reed you had left me.”
“Singularly dead,” said the attorney coolly; “he does not even say 'I am of opinion.' He is in great practice, and hardworked: in his hurry he has taken up the Lunacy Acts, and has forgotten that the rights of sane Englishmen are not the creatures of these little trumpery statutes. No, thank you; our rights are centuries older, and prevail wherever, by good luck, the statutes of the realm are silent; now they are all silent about incarcerating sane men. Besides, he gives no cases. What is an opinion without a precedent? A lawyer's guess. I thought so little of his opinion that I sent the case to a clever junior, who has got time to think before he writes.” Colls entered soon after with the said junior's opinion. Mr. Compton opened it, and saying, “Now let us see what he says,” read it to Alfred. It ran thus:
“There was clearly a right of action under the common law and it has been exercised. Anderdon v. Brothers; Paternoster v. Wynn, &c. Such a right can only be annulled by the express terms of a statute: now the 8 and 9 Victoria, cap. 100, sect. 99, so annuls it as against the madhouse proprietor only. That, therefore, is the statutory exception, and tends to confirm the common right. If the facts are as represented (on which, of course, I can form no opinion), Mr. Hardie can safely sue the person who signed the order for his alleged false imprisonment.
“I agree with you that the usual course by praying the Court of Chancery for a Commission de Lunatico Inquirendo, is timorous, and rests on prejudice. Plt., if successful, is saddled with his own costs, and sometimes with Deft.'s, and obtains no compensation. It seems clear that a jury sitting at Nisi Prius can deal as well with the main fact as can a jury sitting by the order of the Chancellor; and I need not say the costs will go with their verdict, to say nothing of the damages, which may be heavy. On the other hand, an indictment is hazardous; and I think you can lose nothing by beginning with the suit. By having a shorthand writer at the trial, you may collect materials for an indictment, and also feel the pulse of the court; you can then confer upon the evidence with some counsel better versed in criminal law than myself. My advice is to sue Thomas Hardie; and declare in Tort.
“(Signed) BARROW.
“N.B.—I have been thus particular, because Hardie v. Hardie (if carried to a verdict) will probably be a leading case.”
“Who shall decide when counsel disagree?” inquired Alfred satirically.
“That depends on where they do it. If in court, the judge. If here, the attorney.”
You appear sanguine, Mr. Compton,” said Alfred; “perhaps you would not mind advancing me a little money. I've only half-a-crown.”