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It is proper to take notice, that by the 21 Jac. 1. c. 16, an action for an assault and battery must be brought within four years. But this must be taken advantage of by pleading, and therefore where the plaintiff by mistake pleaded non culp. infra sex annos, upon demurrer it was holden to be an ill plea.- Blackmore v. Tidderly, H. 1705. Salk. 423. Ld. Raym. 1099.(a)

(a) But the demurrer in this case must be special. Macfadzen v. Oliphant, 6 East, 388. As to the costs

in this action, see Selw. N. P. Abr.. 35. 37.



EVERY restraint of a man's liberty under the custody of another, either in a gaol, house, stocks, or in the street, is in law air imprisonment; (a) and whenever it is done without a proper au


(a) To constitute the offence of false defendant. Coot v. Lightworth, Mo.' imprisonment, it is necessary to shew 457. Thurbane's Ca. Hard. 323; but what sort of detention has been con- in such a case the court will give sidered unlawful. First, then, for the nominal damages only. Oxley v. arrest of an executor or administrator Flower, Selw. N. P. Ab. 806, in without a suggestion of a devastavit, which it was laid down by Kenyon, this action lies not only against the C. J. that every imprisonment inplaintiff, but against the attorney who cluded a battery; the court, however, issued the writ. Barker v. Braham, in Emmett v. Lyne, i Bos. and Pull. 3 Wils. 368. But there is a distinc- N. R. 255, treated that idea as abtion between persons not liable to surd. arrests and those privileged there. So for an arrest upon process, from, for the latter cannot maintain which is roid or irregular, this action this action; as a witness returning lies. Barker v. Braham, 2 Bla, 866. from the court. Cameron v. Lightfoot, 3 Wils. 368. Burslem v. Fern, 2 Wils, 2 Bla. 1190; for the officer arresting 47. Parsons v. Lloyd, 2 Wils. 341. him was compelled so to do by the 2 Bla. 845. Philips v. Biron, 1 Stra. compulsory writ, and it is the same 509, in which case a distinction was. with peers, certificated bankrupts, in- taken between an irregular and an solvent debtors, &c. Co. of Rutland's erroneous process, riz, that if er: Ca. 6 Co. 52. Tarleton v. Fisher, roncous it is the act of the court, and Dougl. 666, (671). Yet for an ar- the party shall not suffer by it; but rest on a Sunday this action lies. if irregular, it is the act of the party Wilson v. Tucker, Salk. 78. Taylor or his attorney, against whom this v. Freeman, Selw. N. P. Ab. 808 (n.) action will lie.

So for the arrest of a wrong per- So for an arrest on an informal son it lies, though such person afirm affidavit. Smith v. Boucher, 2 Stra. himself to have the same name as 993. Reeks y. Groneman, 2 Wils.

thority, is false imprisonment, for which the law gives an action; and this is commonly joined to an assault and battery; for every im



226; or process, Johns v. Smith, shewing the writ. So in the case of Cro. Jac. 314. Allen v. Allen, 2 Bla. his bailiff, with this difference, that 694.

the sheriff must shew the writ reSo where an inferior court ex- turned, if returnable, which his ceeds its jurisdiction, as the College bailiff cannot do ; but if the action of Physicians. Dr. Bonhan's Ca. 8 be against the plaintiff in the arrest, Co. 114, this action lies, but not or a stranger, they cannot justify against the judge of such a court if without shewing a judgment as well of record. Groenrelt v. Burwell, Str. as an execution. Britten v. Cole, 474. Comy. 76.

Salk. 408. Co. of Rutland's Ca. 6 Co. So where an inferior court has no jurisdiction at all. Higginson v. A second good justification is Martyn, Bull. N. P. 83. So where where an officer apprehends another the proceedings of such a court are upon a charge of felony, (though irregular. Crawley's Ca. Cro. Car. without a warrant for his apprehen567. So where such a court proceeds' sion) and carries him before a mainterso ordine, though no action lies gistrate, for in such a case he that against the party suing, or any mi- makes the charge alone is answernister of the court for serving the

able. Samuel v. Payne, Dougl (346) process, yet as the whole proceed- 360. Ledwick v. Catchpole, Cald. 294. ings are coram non judice, an action S. P. will lie against them all without any So a bailiff may justify retaking regard to the process. Marshalsea Ca. his prisoner before the return of the 10 Co. 76. And this principle has writ on mesne process, though he been recognized in many cases, as permitted him to go at large. AtNichols v. Wulker, Cro. Car. 395. kinson v. Mattison, 2 T. R. 172; but Hill v. Bateman, Stra. 71. Shergold after a voluntary escape, the sheriff v. Holloway, Stra. 1002. Perkin v. cannot retake his prisoner. Atkinson Proctor, 2 Wils. 384. Browne v. v. Jameson, 5 T. R. 25. But where Compton, & T. Rep. 424.

the arrest is by warrant, the bailiff So against a justice of peace, for must shew that the warrant was le. a commitment for a penalty without gal, 2 Inst. 46, and not a bare warpreviously issuing his warrant of rant of a justice for servants wages. distress, this action lies. Hill v. Shergold v. Holloway, 2 Stra. 1002. Bateman, sup. and so for a detention But if a constable shew's a warrant for fces not demandable. Smith v. to a man whom he is going to arSibson, 1 Wils. 153.

rest, and he voluntarily submits to And so against commissioners of go with him, this is not such an arbankrupt for a commitment not war- rest as will enable a man to supranted by their authority. Dyer v. port this action. Arrowsmith v. Le Missing, 2 Blac. 1035. Miller v. Mesurier, 2 Bos. and Pull. N. R. Seare, 2 Blac, 1141. Battye v. Gres- 2u. for bare words will not make ley, 8 East, 319.

an arrest. Genner v. Sparks, Saik. But there are cases in which an ar- 79. rest or detention has been considered Thirdly, Secretaries of state may legal or justifiable, as where the pro- justify a commitment on a suspicion cuss issues from a court having cog- of treason, for it is incident to their nizance of the cause, but there is a office, and a commitment to a mesdistinction between officers and pri- senger is good. R. v. Kendall, 1 Salk. vate persons. If the action be 347. But they have no power to against the sheriff, he may justily by issue a general warrant to arrest the


prisonment includes a battery, and every battery an assault.—Co. Lit. 253.(a)

The 21 Jac. 1. Jimits this action to four years; but if an action be brought for detaining the plaintiff in prison, from to and the defendant plead (aş he may) as to part not guilty infra quatuor annos, the plaintiff may reply that it was one continued imprisonment; and so oust the defendant of the benefit of the statute.-Coventry v. Apsley, M. 3 W. 3. Salk. 420. Post. 24. S. P. in Pickersgill v. Palmer.

Declaration of Mich. term, of an assault on the ļ8th of October, and an imprisonment from thence for twenty-five weeks; on motion in arrest of judgment, the court held that the continuance being laid under a scilicit, will not vitiate what is properly laid in time, and that this differs from all the cases where the time is affirmatively laid.-Webb v. Turner, 11 Geo. 2. Stra. 1095.

Trespass against J. G. widow; and pending the suit she took husband; after judgment a writ was directed to the sheriff quod caperet J. G. ad satisfaciendum, upon which the sheriff took the defendant; whose husband, together with her, thereupon brought an action of false imprisonment against the sheriff, who justified under the ca. sq. the

plaintiff demurred; and per cur. If an action be brought against a [ *23 ] widow, * who before judgment takes an husband, yet if she be found

guilty, the ca. sa. shall be awarded against her, and not against her husband. Judgment for the defendant.-Doyley v. White, T. 11 Jac. !. Cro. Jac. 323,(6)


person or scize the papers on a genc- tion lies not, though she be not afterral information. Entick v. Carring. wards condemned, for the court of ton, 2 Wils. 275.

admiralty can give damages for the So may commanding officers in detention. Le Caur v. Eden, Dougl. the army or navy put their inferior 572, (594.) officers under arrest on good ground, raj Where the immediate act of but they must afterwards bring them imprisonment proceeds from the deto a court-martial. Swinton v. Mol. fendant, the action must be trespass, loy, cited i T. Rep. 537.

and trespass only, but where it is by So may the captain of an India- one person, in consequence of inman imprison a passenger who re- formation from another, there an fuses to take the station assigned action on the case is the proper reto him on the approach of an enc. medy. Morgan v. Hughes, 2 T. Rep. my. Buyce v. Bayliffe, i Camp. 60. 231. And per Buller, J. There is And if, while the captain was in the no distinction between a malicious Act of putting the plaintiff in irons, commitinent and a malicious proseanother person assaults the plaintiff, cution. S. C. he is jointly guilty of the false im. b) In actions against husband prisonment. Boyce v. Campbell, ibid. and wife, if the suit be for a debt of

So for detaining the mariners of a the wife dum sola, and judgment be ship taken as a lawful prize, this ac. for the plaintiff, both may be taken Where an officer and another join in the same justification, if it be not sufficient for the officer, neither is it for other, (Middleton v. Price, E. 16 Geo. 2. Str. 1184.); and wherever an officer justifies an imprisonment under a writ which he ought to return (and all mesne process ought to be returned) he must shew that the writ was returned; but it is otherwise in the case of a subordinate officer, such as a bailiff, for he is only to execute the sheriff's warrant. (Smith v. Boucher, M. 8 Geo. 2. Str. 993. (a) If the action be brought against him who was plaintiff, he cannot justify by virtue of an execution, unless he likewise shiew there is a judgment; for the judgment may be reversed, and it ought to be at bis peril that he takes out execution afterwards : but it is enough for the sheriff to shew a writ, and if any one come in aid of the officer at his request, he may justify as the officer may do, but such request is traversable.- Brilton v. Cole, Salk. 409. (b)

The officer cannot justify an imprisonment for non-payment of taxes, under the general printed warrant which the collectors have, signed by two justices; but he ought to have a special warrant.-Masters v. Boucher, 11 W.3. 1 Raym. 740.

The defendant justified an imprisonment for that the plaintiff was indebted to him iu a debt of £20, and he took out a latitat against him, directed to the sheriff, &c. which is the same imprisonment, &c. The plaintiff in his replication traversed that he owed him so much money; after verdict for the plaintiff it was moved in arrest of judgment, that the debt being but inducement to the justification was not traversable, and a repleader was awarded.-- Hillyfield v. Stanyford, M. 25 Car. 2. C.B.(c)


in execution, for that must follow The judgment. Bardolph v. Perry, Mo. 704. Wilmot v. Butler, Say. 149. So it may be against both in the wife's assault. Langstaff y. Rain, 1 Wils. 149. But on all judgments obtained on the wife's contracts, or for her torts during coverture, the execution shall go against the hus band alone. Anon. Cro. Car. 513.

(a) In this case it was said that an officer, by joining with one to whom the process was no justifica tion, forfeited his own justification.

(b) Where a man is arrested for debt, the sheriff is not bound to reJease bim unless he receives a written discharge from the plaintiff; and after receiving such discharge, he

may detain him a reasonable time
(say twenty-fours) to search the of-
fice, for the othicer is not bound
to make the scarch till the written
discharge arrives. Taylor v. Brander
and Another, Sheriffs of London, 1 Esp.
N.P.45. Qure tamen, whether twen-
ty-four hours is not an uureasonable
time to search the office in London,
and whether the plaintiff's discharge,
without that of his attorney, will sufo
fice, for in practice the latter is al- ,
ways required.

Note. In the principal case, defendant was detained twenty-six hours after the plaintiff''s discharge arrived.

(c) If a party be arrested without any cause of action, he has his re


Note, that by 21 Jac. 1. c. 12, justices of the peace, mayors, bailiffs, churchwardens, and overseers of the poor, constables, and other peace officers, may plead the general issue, and give the special matter in evidence. It likewise enacts, that any action brought against them shall be laid in the proper county; and if upon the general issue pleaded, the fact shall appear to be done in another county, the jury shall find the defendant not guilty.

Note likewise, that by 24 Geo. 2. c. 44, no writ shall be sued out against a justice for what he shall do in the execution of his office, till notice in writing of such intended writ shall have been delivered to him,

or left at the usual place of his abode, a month before ;(a) and the jus[ *24 ) tice may tender * amends, and in case the same is not accepted, plead

such tender in bar to the action, together with the plea of not guilty, and any other plea with leave of the court; and if upon issue joined thereon the jury shall find the amends so tendered to have been sufficient, then they shall give a verdict for the defendant. (b) It likewise enacts, that no action shall be brought against any constable or other officer, or any other person acting by his order, for any thing done in obedience to a justice’s warrant, until demand made of the perusal and copy of such

medy by an action on the case for of the particular process to be sued maliciously holding him to bail. out, and that it was not enough to Belk v. Broadbent, 3. T. R. 185; and say that an action should be comdefendant pleading justification un- menced against the magistrate for der mesne process sued out by him in his said anisconduct. Per Ellenborough, a cause in which he was plaintiff, C. J. in Sabin v. De Burgh, 2 Camp. may state that the writ issued upon 197, plaintiff cannot give notice of an affidavit to hold to bail, without one form of action and declare in ansetting forth the cause of action, ibid; other. Strickland v. Iard, 7 T. R. for that is not traversable.

631, (n.) . (a) No action can be brought Where a magistrate intends to act against a magistrate for any act done as such in a matter within his jurisby him in that character, without diction, however mistaken he may giving him a month's notice of the be, he is entitled to notice under this writ or process intended to be i sued, statute. Weller v. Toke, 9 East, 364. as well as the cause of action. Lore- So where defendant, who was a lace v. Curry, 7 T. R. 631. Strickland justice of peace and also lord of a v. Il'ard, ibid. (in notis ) and the manor, went into the house of a stajute says a calendar month. blacksmith in the manor, in com

(6) All that this statute requires pany with his gamekeeper, to search is, that the notice shall contain two for engines to the destruction of things: 1st. The writ or process game, and took away a gun which which the plainti' intends to sue out; had been left to be repaired. It was 201. The couse of action for which he held, that he should be presumed to sues. The form of action need not have acted as a justice, though he be specified. In Lovelace ». Curry, had acted wrong, and therefore that 7 T. R. 631, the court decided only he ought to have received notice. that there must be a month's notice Briggs v. Evelyn, 2 H. Bla. 114.


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