his dwelling-house, it is not enough for the defendant to shew possession of a room as a lodger. Monks v. Dykes, 4 M. & W. 567.

Evidence on plea of reasonable chastisement.] Where the plaintiff complained of assaulting and beating with fists and a rope, putting him in irons, &c., the defendant justified, as master of a ship, flogging and imprisoning the plaintiff for mutiny and disobedience, and the plaintiff replied de injuriâ; it was held that he could not go into evidence of disproportionate punishment. Lamb v. Burnett, 1 C. & J. 294, 295, 298. So where the defendant justifies the moderate correction of his apprentice, the replication de injuriâ only puts in issue the misconduct of the plaintiff, and not the moderation of the punishment. Penn v. Ward, 2 C. M. & R. 338.

Evidence on plea justifying under process or authority of law.] If the process be irregular only, and not void nor set aside for irregularity, it is a good defence, and the plaintiff cannot defeat the plea by proof of the irregularity. Riddell v. Pakeman, 2 C. M. & R. 30. Declaration stated an assault and imprisonment. The plea alleged an arrest on charge of felony, and because the plaintiff resisted, the defendant beat him; held, that it was unnecessary to prove the resistance, because the rest of the plea was a sufficient justification of the alleged trespass. Atkinson v. Warne, 1 C. M. & R. 827. Where the defendant justifies under a ca. sa., and the plaintiff, admitting the writ, replies de injuriâ absque residuo, &c., he may shew that the defendant did not in fact act under the writ at all; but cannot shew the arrest to be a trespass ab initio in consequence of antecedent matter without a special replication. Price v. Peck, 1 New Ca. 380. See post, p. 481.

Certificate under 9 Geo. 4. c. 31. s. 27.] A certificate of a summary conviction or dismissal by two justices on a complaint in respect of the same assault or battery must be specially pleaded. Where the plea stated the giving of a certificate "forthwith " (in the words of the act), and the replication denied that defendant had obtained such certificate modo et formâ, it was held that the replication put in issue the obtaining forthwith, and that a certificate granted some months after dismissal did not support the plea; held also that the dismissal of the complaint as "not proved" was not in itself an answer independently of the certificate. R. v. Robinson, 12 A. & E. 672.

Evidence under alia enormia.] Nothing can be given in evidence under alia enormia except acts which could not be put upon the record. Per Lord Kenyon C. J., Lowden v. Goodrick, Peake, 46. Therefore in an action for trespass and false imprisonment it was ruled that the plaintiff could not shew that he had been stinted in his food, ibid.; or that he caught the gaol fever. Pettit v. Addington, Id. 62. But he may prove intemperate language of the defendant. Merest v. Harvey, 5

Taunt. 442.

Damages.] Evidence may be given of the circumstances which accompany and give a character to the trespass, in order to enhance the damages. Bracegirdle v. Orford, 2 M. & S. 79. The circumstances of time and place, when and where the insult was given, require different

damages; thus it is a greater insult to be beaten upon the Royal Exchange than in a private room. Per Bathurst J., Tullidge v. Wade, 3 Wils. 19. See post," Defence."

Defence.

The new rules of pleading contain no express provision to alter the effect of pleas in trespass for personal injuries.

The case of justices, constables, and others who are permitted to shew special justifications under the general issue will be found, post, p. 478. and in the last part of this work.

Inevitable accident, arising from superior agency, is a defence under the general issue; but where the trespass is the act of the defendant, though it may be excused by involuntary accident owing to the act of the plaintiff, it must be specially pleaded. Thus where the defence was that the plaintiff slipped off the pavement and got under the defendant's carriage and was driven over by the defendant, this was held to be no defence on Not guilty in trespass, though it may perhaps be so in an action on the case alleging negligence. Hall v. Fearnley, Q. B., M. T. 1842.

Although the defendant cannot, under the general issue, give in evidence matter of defence amounting to a justification, yet he may give any circumstance in mitigation which tends to reduce the quantum of damages, and which could not have been pleaded. 3 Stark. Ev. 1460.; Vin. Ab. Ev. (I.b.) pl. 16.; 2 B. & P. 225 (n). Thus in trespass for false imprisonment against a private person, evidence of reasonable suspicion of the plaintiff's having been guilty of the felony is admissible on the general issue in reduction of damages. Chinn v. Morris, R. & M. 424. So in trespass for false imprisonment against the captain of a ship, Buller J. admitted, under the plea of Not guilty, evidence of expres sions used by the plaintiff at the time tending to create mutiny and disobedience; for every thing which passed at the time is part of the transaction on which the plaintiff's action is founded, and he therefore cannot be surprised by the evidence. Bingham v. Garnault, 1 Esp. Dig. N.P.337.; S.C. B. N. P. 17. But in trespass for assault and battery, plea, Not guilty, evidence was offered that the beating was given by way of punishment for misbehaviour on board the ship of which defendant was captain, and it was insisted that the conduct of the defendant at the time of the assault, being necessarily in evidence, proved the misbehaviour; but Lord Eldon C. J. held that, as no justification was pleaded, the jury should give damages to the amount of the injury suffered, without lessening them on account of the circumstances under which it was inflicted; and the Court of Common Pleas confirmed this direction. Watson v. Christie, 2 B. & P. 224. And in trespass for false imprisonment on a charge of false pretences defendant cannot cross-examine the plaintiff's witnesses as to the character of the plaintiff, or previous charges against him. Downing v. Butcher, 2 M. & Rob.

374.

TRESPASS FOR FALSE IMPRISONMENT.

In an action of trespass for false imprisonment, the plaintiff, on the general issue, must prove the fact of imprisonment and the special damage, if any. Most of the cases under the last head of trespass for assault and battery are applicable to this action.

As it is sometimes a question under the general issue whether the facts proved are the proper subject of an action of trespass or case, some of the leading authorities on this point are subjoined.

Form of action with regard to magistrates, &c.]" The general rule of law as to actions of trespass against persons having a limited authority (as commissioners of bankrupt) is plain and clear. If they do any act beyond the limit of their authority, they thereby subject themselves to an action of trespass; but if the act done be within the limit of their authority, although it may be done through an erroneous or mistaken judgment, they are not thereby liable to such an action." Per Abbott C. J., Doswell v. Impey, 1 B. & C. 169.; Lowther v. Earl of Radnor, 8 East, 113.; Mills v. Collett, 6 Bing. 85. Exercising legal authority in a harsh or oppressive manner is not the subject of an action of trespass. Per cur,, Willes v. Bridger, 2 B. & A. 286. Where a magistrate acts without those circumstances which must concur to give him jurisdiction, as where he grants a warrant without information upon a supposed charge of felony, he is liable in trespass. Morgan v. Hughes, 2 T. R. 225. But if there be an information, it matters not whether it is, or purports to be, founded on inadmissible evidence. Cave v. Mountain, I M. & G. 257. So where a magistrate commits a person for re-examination for an unreasonable time, he is answerable in trespass; the continuance of a person in custody after a reasonable time being a new trespass; Davis v. Capper, 10 B. & C. 28.; and whether reasonable or not is a question for the jury. Cave v. Mountain, 1 M. & G. 257. Where an officer detains a person under process after bail tendered, or other ground of discharge, he is liable in case and not in trespass. Smith v. Egginton, 7 A. & E. 167. 175.

An action of trespass cannot be maintained against a judicial officer, as against the steward of a court baron, where his bailiff by mistake takes the goods of A under a precept against B. Holroyd v. Breare, 2 B. & A. 473. Nor will trespass lie against the sheriff for the irregular act of his bailiff under a judgment obtained in the county court. Tinsley v. Nassau, M. & M. 52. But if the steward of a court baron or hundred court, instead of leaving process to be executed by the usual officer, directs it to persons named by the party, from whom he takes an indemnity, he is then liable in trespass for their acts. Bradley v. Carr, 3 M. & G. 221.

Where the clerk of a court of requests irregularly issues a precept of execution without the authority of the court, yet the serjeant who executes it is not liable, but only the clerk. Andrews v. Marris, 1 Q. B. 3. A summoned B before the commissioners of a court of requests who, upon default of B, heard the case ex parte and directed a precept to be issued under which he was taken in execution. B, being in fact

not resident within their jurisdiction, brought trespass against A, the commissioners, and the serjeant. Held that the action could not be supported against A; that it lay against the commissioners, unless they could shew that evidence had been given from which they were justified in assuming that B was resident within their jurisdiction; and that it lay against the serjeant in a case where the precept was bad on the face of it; otherwise not. Carratt v. Morley, 1 Q. B. 18. See further as to the liability of magistrates and officers, antè, p. 143, 144., and post," Actions against Constables and Justices."

:

Form of action with regard to private persons.] If a party acts himself in apprehending another, he is liable in trespass; but if he falsely and maliciously, and without any probable cause, puts the law in motion, it is properly the subject of an action on the case; per Bayley J. Elsee v. Smith, 1 D. & R. 103. ; Barber v. Rollinson, 1 C. & M. 330. ; unless he is a party to the actual arrest, of which his presence and interference are evidence; West v. Smallwood, 3 M. & W. 418. Trespass for imprisonment by plaintiff; plea Not guilty the plaintiff proved that, being a prisoner, he had been brought up to the Court of King's Bench by an order obtained by defendant, and served by him on the goaler, and thereupon committed on an attachment for nonpayment of costs; held, that this was primâ facie a trespass by defendant, and not the mere act of the court. Bryant v. Clutton, 1 M. & W. 408.; dissent. Lord Abinger C. B., who thought that the action, if any lay, should be case. In Sowell v. Champion, 6 A. & E. 407. 417., it was held that the attorney who places a writ of execution in the hands of an officer is not guilty of trespass, though he may be persuaded that the officer will execute it in a place which turns out on inquiry to be out of his jurisdiction; but if he directs it to be executed there, or if the officer tells the attorney of his intention, and the attorney, knowing it to be illegal, acquiesces in it, it may make him a trespasser. See 1 Saund. 74. a. (n). If the warrant be illegal under which the party acted, he is liable in trespass; and in such an action, if the plaintiff's counsel opens the case as an arrest upon an illegal warrant, the plaintiff is not bound to produce the warrant, but the defendant, if he relies upon it as a justification, must produce it. Holroyd v. Doncaster, 3 Bing. 492. Where the defendant represented that the plaintiff was a fit person to be impressed, and in consequence he was impressed though not a fit person, it was held that the defendant was liable in trespass; and per Lord Ellenborough C. J., “This is not like a malicious prosecution, where the 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; nor is proof of malice necessary." Flewster v. Royle, 1 Camp. 187. Where a sheriff's officer arrests a person under two writs, and detains him after he has a right to a discharge under one, yet trespass does not lie, if in fact his imprisonment was justified under the other. Blessley v. Sloman, 3 M. & W. 40.

Proof of the imprisonment.] The circumstances which will amount in law to an arrest or imprisonment are stated in another place. See antè, p. 388. Case for Malicious Arrest; and post, Actions against Con

Defence.

In actions against justices, constables, churchwardens, &c., the defendants may give any special justification in evidence under the general issue; see 21 Jac. 1. c. 12. s. 2. post, Actions against Justices, and against Constables. A private individual is not within the above statute, unless acting in aid of the constable. Bond v. Rust, 2 C. & P. 342. And he must therefore plead his justification specially, and prove it as stated.

TRESPASS TO PERSONAL PROPERTY.

The evidence for the plaintiff in an action of trespass for taking away or injuring personal property varies according to the nature of the issue joined between the parties.

Form of action-trespass, or case.] In cases of accidents occurring in driving carriages, steering ships, &c., questions frequently arise as to the proper form of action. The following distinctions may be drawn from the decisions on the subject. See 2 H. Bl. 442. (n), 4th ed.

(1.) Where the injury is both wilful and immediate; as where a person wilfully rows a boat against nets and destroys them, Tripe v. Potter, cor. Yates J., cited 8 T. R. 191., trespass is the only form of remedy. Ogle v. Barnes, 8 T. R. 192.; Moreton v. Hardern, 4 B. & C. 227.; Williams v. Holland, 10 Bing. 112.

(2.) Where the injury is immediate but not wilful, and occurred only by the negligence of the party; as where a man firing a gun without sufficient caution accidentally hurts another; Weaver v. Ward, Hob. 134.; Underwood v. Hewson, 1 Stra. 596.; or where a person drives on the wrong side of the way in the dark and accidentally injures another carriage; Leame v. Bray, 3 East, 593.; Lotan v. Cross, 2 Camp. 465.; Hopper v. Reeve, 1 B. Moore, 407. ; or where a person, steering a ship, through ignorance or unskilfulness runs it against another; Covell v. Laming, I Camp. 497. ; trespass may be maintained; but in such cases trespass is not the only form of remedy; for the party injured may, it seems, waive the trespass and sue in case for the negligence. Hall v. Pickard, 3 Camp. 187. Thus, where the plaintiff declared that the defendants so incautiously, carelessly, negligently, and inexpertly managed and steered their ship, that by reason of their negligence, &c., it ran foul of the ship of the plaintiff, after verdict for the plaintiff the Court of King's Bench refused to arrest the judgment. Ogle v. Barnes, 8 T. R. 188.; Turner v. Hawkins, 1 B. & P. 472. So where the declaration stated that the defendant took such bad care of his cart and horse in driving, that, through his negligence and want of care, &c., the cart struck the horse of the plaintiff and was hurt, &c.; on demurrer, the court intimated a clear opinion, that, as the injury was expressly alleged in the declaration to have arisen from mere negligence and want of care, the demurrer could not be sustained. Rogers v. Imbleton, 2 New Rep. 117. So in an action on the case against several