814 CHAP. XXIV. IMPRISONMENT. 1. Of the Nature of the Action for false Imprisonment, and in what Cases it may be maintained. II. Statutes relating to the Action of false Imprisonment, 21 Jac. 1. c. 12—24 G. 2. c. 44. III. Of the Pleadings. I. Of the Nature of the Action for false Imprisonment, and in what Cases it may be maintained. FALSE imprisonment is a restraint on the liberty of the person without lawful cause; either by confinement in prison, stocks, house, &c. or even by forcibly detaining the party in the streets, against his will. For this injury an action of trespass vi et armis lies, usually termed an action for false. imprisonment. In Buller's Nisi Prius, 22, it is said, that every imprisonment includes a battery, and it appears that Kenyon C, J. was of this opinion in Öxley v. Flower and another, but this has been otherwise decided since, in Emmett v. Lyne, 1 Bos. & Pul. N. R. 255. and ante, p. 42. n.; the court observing, that it was absurd to contend that every imprisonment included a battery. An unlawful detention is a new caption, and may be declared on as such. An arrest on mesne process, which is not returned, is wrongful, and false imprisonment will lie against the sheriff; so if an officer of an inferior court does not return a Per Thorpe C. J. 22 Ass. fo. 104. c 2 Rol. Abr. 563. pl. 9.- the process directed to him, he is a trespasser ab initio, and false imprisonment lies against him; for he is as sheriff within the jurisdiction. The sheriff must at his peril, execute the writ upon the person really named therein; and if he mistakes the person, he is liable to an action for false imprisonment. A. B. brought false imprisonment against C.f who justified that he had a warrant to arrest J. S. and having asked A.B. the plaintiff, what his name was, he answered J. S. whereupon C. arrested A. B. Plaintiff demurred, and judgment for plaintiff, because C., the defendant, ought at his peril to have taken notice of the person named in the writ. A sheriff's officer having received a warrant to arrest A., whose person he had never seen, went to her house, where he found her and the plaintiff together. Addressing himself to the plaintiff, he said, "I have a writ against you;" upon which A. desired the plaintiff to go with the officer. The officer immediately took plaintiff to a sponging house, where he kept her all night; but the next morning, having discovered his mistake, he released her. Kenyon C. J. admitted the law to be as stated in the preceding case; but considering this as a trick on the officer, directed the jury to give the plaintiff nominal damages only, which they did accordingly. If a magistrate's warrant be shewn by the constable, who has the execution of it, to the person charged with an offence, and he thereupon voluntarily and without any, even the slightest, compulsion, attends the constable to the magistrate, who after examination dismisses him; it seems that this will not constitute an arrest, so as to enable the party to maintain trespass for an assault and false imprisonment (1). An action for false imprisonment was brought by a native and inhabitant of Minorca, (then part of the dominions of Per Hankford J. 11 H. 4. 91. a. See f Moor, 457. Hardr. 323. S. P. h Arrowsmith v. Le Mesurier, 2 Bos. i Mostyn v. Fabrigas, in error, M. T. (1) Words merely will not make an arrest. Genner v. Sparks, Salk. 79. (2) The proceedings in all the stages of the cause will be found reported at great length in the eleventh volume of the State Trials p. 162. edited by Mr. Hargrave, the crown of Great Britain) against the governor of the island, for imprisoning the plaintiff at Minorca, and causing him to be carried thence to Carthagena in Spain. The plaintiff laid the venue in London, stating the injury to have been committed at Minorca, to wit, at London in the parish of St. Mary-le-Bow, &c. The defendant justified, on the ground that the plaintiff had endeavoured to create a mutiny among the inhabitants of Minorca, whereupon the defendant, as governor, was obliged to seize the plaintiff, and imprison him, &c. The plaintiff replied de injuriâ sua propria. After verdict for plaintiff, with 3000%. damages, a bill of exceptions was tendered, and error having been assigned thereon, it was contended, (among other things) 1st, That the plaintiff, being a Minorquin, was incapacitated from bringing an action in the king's courts in England but it was holden, that a subject born in Minorca was as much entitled to appeal to the king's courts as a subject born in Great Britain; and that the objection of its not being stated on the record, that the plaintiff was born since the treaty of Utrecht, did not make any difference. 2dly, It was objected, that the injury having been done at Minorca, out of the realm, could not be tried in the king's courts in England; but it was holden, that an action for false imprisonment being a transitory action, it was competent to the plaintiff to lay it in any county of England, although the matter arose beyond the seas. If a person causes another to be impressed, he does it at his own peril, and is liable in damages, if that person can shew that he was not subject to the impress service. The defendant went to the place of rendezvous* for the impress service, near the tower, and gave information that there was a young man (meaning the plaintiff) at a house she described, who was liable to be impressed, and who was a fit person to serve his Majesty, In consequence of this, the plaintiff was seized by the press-gang, and carried on board the tender, where he was detained, until it was discovered that he had never been in a ship before, except once, when he had been in like manner wrongfully impressed. An action for trespass and false imprisonment having been brought, it was objected that the form of action should have been an action on the case, and not an action of trespass; but Ld. Ellenborough C. J. was of a different opinion, observing, that this was not like a malicious prosecution, where a party gets a valid warrant or writ, and gives it to an officer to be executed. There was clearly a trespass here k Flewster v. Royle, 1 Camp. N. P. C. 197. Ld. Ellenborough C. J. in seizing the plaintiff, and the defendant therefore, was a trespasser in procuring it to be done. An action will not lie at common law for false imprison ment', where the imprisonment was merely in consequence of taking a ship as prize, although the ship has been acquitted. Trespass for false imprisonment will lie against overseers of the poor for imprisoning a man under a justice's war rant, until he should pay a sum of money for the maintenance of a child which should be born of a woman then pregnant by plaintiff, but who had not been as yet delivered. If A., having been robbed", suspect B. to be guilty of the robbery, and take B., and deliver him into the charge of a constable present, B. (if innocent) may maintain trespass and false imprisonment against A. If a prisoner in execution escape by the voluntary permis sion of the gaoler, and the gaoler retake him, he is liable to an action of false imprisonment. But an officer who has arrested a prisoner on mesne process, and voluntarily permitted him to escape, may retake him before the return of the writ, without being liable to such action. Trespass for false imprisonment will lie for a detention under a lawful process, if it be executed at an unlawful. time, as on a Sunday?; for by stat. 29 Car. 2. c. 7. s. 6. it is. provided, "That no person upon the Lord's day shall serve or execute, or cause to be served or executed, any writ, process, warrant, order, judgment, or decree (except in cases of treason, felony, or breach of the peace) (3); but that the service of every such writ, &c. shall be void, and the person or persons so serving or executing the same shall be as liable to the suit of the party grieved, and to answer damages to him for doing thereof, as if he or they had done the same without any writ, process, &c." 1 Le Caux v. Eden, Doug. 594. n Stonehouse v. Elliott, 6 T. R. 315. (3) In Taylor v. Freeman and another, Glouc. Lent Ass. 1757, MSS. it appeared, that the defendants, as constables, had arrested the plaintiff upon a Sunday, by virtue of a warrant from a justice of the peace, for getting a bastard child. Au action for false imprisonment having been brought, Adams, Baron, held, that plaintiff was entitled to recover. Trespass for false imprisonment may be maintained against the sheriff for an arrest made by his bailiff after the return day of the writ. So against commissioners of bankrupt, who commit a person suspected to detain effects of the bankrupt for not attending on the first summons; for the statute' directs, 1st, a summons to the party (4); 2dly, on his default or neglect, a warrant to bring him before the commissioners in custody in order to be examined (5), or else a second summons, at their discretion; 3dly, if when brought in custody he refuses to be examined, or upon a second summons refuses to come (6), then, and not before, the commissioners have power to commit. When a court has jurisdiction of the cause', and proceeds. inverso ordine, or erroneously, an action does not lie against the party who sues, or the officer or minister of the court who executes the precept or process of the court; but when the court has not jurisdiction of the cause, the whole pro q Parrot v. Mumford, 2 Esp. N. P. C. 585. Prior C. J. r Battye v. Gresley, 8 East, 319. s 1 Jac. 1. c. 15. s. 10. t Second resolution, Marshalsea case, 10 Rep. 76 a. (4) It is not necessary, upon the summons, to tender the witness the expenses of his journey beforehand; though if he be in fact without the means of taking the journey, it may be an excuse for not obeying the summons; it lies, however, on the party so summoned having a lawful excuse for not attending, to prove the fact, in an action of trespass and false imprisonment brought by him for such arrest. Battye v. Gresley, 8 East, 319. (5) The warrant for the arrest of the witness, in order to examine him, may issue after his disobedience to the first summons. The propriety of granting the warrant of commitment being an act of discretion, must be determined upon by the commissioners acting together at the time; and their order to their officer, to make out such warrant, must be taken to include thejr direction as to the persons to whom it is to be directed; but the mere act of signing the names of the commissioners to the warrant, may be done by them separately. S. C. (6) The general practice has been to issue a second summons upon the neglect of the first, before the warrant of commitment; but the act does not require a second summons. It is in the disjunctive. The first branch is complete, and the next may well be taken to mean, that if a party, after having once before been summoned, and appearing, or having lawful impediment for not appearing, be summoned again, and do not appear, &c. having no lawful impe-, diment, he may be committed, as well as if he neglect to appear on the first summons, having no lawful impediment. Per curiam,* in Battye v. Gresley, 8 East, 326. |