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whose person

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 commission of rebellion issued against I. G. appeared before the commissioners, and affirmed himself to be the person, whereupon they apprehended him by virtue of their commission. Per Hale, Ch. B.,8 “If a wrong man be taken, though he affirm himself to be the person against whom the commission is awarded, yet the commissioners having no warrant to take him by the commission, his affirming himself to be the person will be no excuse in false imprisonment, as has been held on the execution of a capias." A sheriff's officerh having received a warrant to arrest A.,

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. But if a person whose real name is W. is asked before process issues against him, whether his name is not John, and he says it is, he cannot maintain trespass for imprisonment under process against him by the wrong name. If a magistrate's warrant is shewn by the constablek, 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). So where a sheriff's officer, to

g Hardr. 323. upon motion for an

attachment against G. which was

granted. h Oxley v. Flower, B. R. Middx. Sit

tings, Dec. 4, 1800, MSS. See Morgans v. Bridges, 1 B. and A. 647.

i Per Ld. Ellenborough, C. J. Price

v. Harwood, 3 Campb. 108. k Arrowsmith v. Le Mesurier, 2 Bos.

& Pul. N. R. 221. See also Bieten v. Burridge, 3 Campb. 139. Peters v. Stanway, 6 C. & P. 737. Wood v. Lane, 6 C. & P. 774.

(1). Words merely will not make an arrest. Genner v. Sparks, Salk. 79,

whom a warrant upon a writ against A. was delivered, sent a message to A. and asked him to fix a time to call and give bail; and A. accordingly fixed a time, attended, and gave bail; it was holden', that this was not either an actual or constructive arrest. The sheriff's officer did not take a warrant with him, nor did he tell A. that he came to arrest him, but merely gave notice of the writ, and asked him to fix a time for giving bail.

An action for false imprisonment was brought by a native and inhabitant of Minorcam, (then part of the dominions of 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, &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 injurid sua propria. After verdict for plaintiff, with 30001. damages, a bill of exception 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 (2). 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

1 Berry v. Adamson, 6 B. & C. 528.

m Mostyn v. Fabrigas, in error, M. T.

15 G. 3. B. R. Cowp. 161(2).

(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.

Q

VOL. II.

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 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 imprisonmento, 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 warranty, 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 as yet been delivered." Trespass will lie9 against an attorney and client for suing out an illegal ca. sa. and causing a party to be arrested. So where A. employed B., an attorney, to enforce payment of a debt; B. directed his agent to sue out a justicies in the county court. Before the return of the justicies the debtor paid debt and costs to B. B.'s agent not knowing of such payment, afterwards entered up judgment in the county court, although the defendant had not appeared, and sued out execution; it was holden", that A. and B. were liable as trespassers; for A. was answerable for the act of B., his attorney, and B. and his agent were to be considered as one person. If A., having been robbeds, 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 permission of the gaoler, and the gaoler retake him, he is liable to an action for false imprisonmentt. 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 Sundayų; 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 any writ, process, warrant, order, judgment, or decree, (except in case of treason, felony, or breach of the peace) (3); the service of such writ, &c. shall be void, and the person 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 had done the same without any writ, process, &c.” This statute forbids serving original process only on a Sunday. Where, therefore, there has been an escape against the will of bailiff, he may retake on a Sunday. Secus, if voluntary. 2 Gundry, 14 MSS. Trespass for false imprisonment may be maintained against the sheriff for an arrest made by his bailiff after the returnday of the writ.

n Flewster v. Royle, 1 Campb. 187.

Ld. Ellenborough, C. J.
o Le Caux v. Eden, Doug. 594.
p Wenman v. Fisher, M. 2 G. 2. B. R.

MSS. cited in R. v. Banghurst, H. 5
G. 2, B. R. Sess. Ca. vol. 1. p. 149.

q Barker v. Braham, 3 Wils. 368.
r Bates v. Pilling and another, 6 B.

and C. 38.
s Stonehouse v. Elliott, 6 T. R. 315.

When a court has jurisdiction of the causey, 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 proceeding being coram non judice, an action will lie against them, without any regard to the precept or process (4). Hence, where

t Atkinson v. Matteson, 2 T. R. 172. u Wilson v. Tucker, Salk. 78. 5 Mod.

95, S. C.

x Parrot v. Mumford, 2 Esp. N. P. C.

585. Prior, C. J. y Second resolution, Marshalsea case,

10 Rep. 76. a.

(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. An action for false imprisonment having been brought, Adams, Baron, held that plaintiff was entitled to recover.

(4) This principle has been recognized in several cases. See Nichols v. Walker, Cro. Car. 395. Hill v. Bateman, Str. 711. Shergold v. Holloway, Str. 1002. Sessions Cases, vol. 2. p. 100. S.C. Perkin v. Proctor, 2 Wils. 384, and since in Brown v. Compton, 8 T. R. 424.

one of the bail had been arrested by process out of the Mar"shalsea? for the purpose of satisfying a judgment obtained against the principal in a cause, of which the Marshalsea court had no jurisdiction, it was holden, that an action for false imprisonment would lie against the party who sued, the marshal who directed the execution of the process, and the officer who executed the same. In the case of a warrant, illegal on the face of it, for an excess of jurisdiction in the magistrate, trespass is maintainable against the committing magistrate, although the conviction has not been quasheda; but where the justice has competent jurisdiction, his judgment is conclusive, until reversed or quashed, and the conviction cannot be controverted in evidenceb. A conviction stated that plaintiff, having been brought before a magistrate on an information charging him with having unlawfully returned without a certificate to a parish from whence he had been removed, and that upon that occasion he confessed himself guilty; it was holden', that this conviction was good upon the face of it, and that it was not necessary to state in it expressly any act of vagrancy, it being for the party convicted to show in his defence, that he did not return in a state of pauperism. A magistrate had committed the plaintiff for re-examination for a period of fourteen days. The jury found that the commitment was bond fide, and without any improper motive, but that the time for which the commitment was made was unreasonable. In such case trespassd is the proper remedy, and not case; for the better opinion is, that such commitment is wholly void. If a justice of the peace make a warrant to a constable to bring A. B. before him, for a matter of which he has a general cognisance, though the J. P. had no foundation in fact for granting such a warrant, or though the warrant itself be defective in point of form, yet the constable may justify under it; but if the J. P. make a warrant to take up A. B. to answer in a plea of debt, a constable cannot justify under such a warrant, because the justice has not any jurisdiction of debtse. Trespass vi et armis will not lie against commissioners of bankrupt', for a commitment by them for not fully answering to their satisfaction lawful questions proposed by them to a party whom they have authority to examine, and upon a subject into which they have authority to inquire. But the commissioners have not autho

z Marshalsea case, 10 Rep. 68. b. c Mann v. Davers, 3 B. & A.103. a Groome v. Forrester, 5 M. & S. 314. d Davis v. Capper, 10 B. & C. 38. b Strickland v. Ward, 7 T. R. 633, n. e Shergold v. Holloway, Str. 1002.

Fawcett v. Fowlis, 7 B. & C. 394. Doswell v. Impey, I B. & C. 163.

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