false imprisonment, unless a showing of justification makes [*170] it a *true or legal imprisonment. Therefore, if an officer, without process or with void process, notifies a person that he arrests him, and the person so notified submits and accompanies him, this is an imprisonment. "It is the fact of compulsory submission which brings a person into imprisonment; and impending and threatened physical violence, which to all appearance can only be avoided by submission, operates as effectually if submitted to as if the arrest had been forcibly accomplished without such submission. There are cases in which a party who does not submit cannot be regarded as arrested until his person is touched; but when he does submit no such necessity exists." 1 "If the party is under restrait, and the officer manifests an intention to make a caption, it is not necessary there should be actual contact." Just as little will constitute imprisonment by others. than officers. To tell one on a ferry that he shall not leave it until a certain demand is paid, is an imprisonment if one subunits through fear, though the person is not touched and no actual violence offered. But it is no imprisonment to turn one from the way he desires to go, if he is not otherwise restrained, and is at liberty to go back or to go elsewhere than in the direction he was started in. It is a wrong which may be redressed in an action on the case, but it is not an imprisonment."

2

Mullen v. Brown, 138 Mass. 114; Herzog v. Graham, 9 Lea, 152. See Lewin. Uzuber, 65 Md. 341. If the arrest is unlawful, malice need not be shown. Chrisman v. Carney, 33 Ark. 316.

As to joint liability of officer or attorney or magistrate in false imprisonment, see cases supra. p. 147 n. 1, 151 n. 4. The party and attorney are protected if the writ protects the officer. Wheaton. Beecher, 49 Mich. 348; Hill v. Taylor, 50 Mich. 549. The burden of proof to show the imprisonment lawful is on the defendant. Hicks . Faulkner, L. R. 8 Q. B. D. 167; differing from the rule in malicious prosecution.

1 CAMPBELL, J., in Brushaber v. Stegemann, 22 Mich. 266, 269. And, see, Pike v. Hanson, 9 N. H. 491.

2 VAUGHAN, J., in Granger v. Hill, 4 Bing. (N. C.) 212, 222. And, see, Bird v. Jones, 7 Q. B. 742; Warner v. Riddiford, 4 C. B. (N. 8.) 180 While manual seizure is not necessary to constitute an arrest, there must be that or its equivalent in some sort of personal coercion. Hill v. Taylor, 50 Mich. 549.

Smith v. State, 7 Humph. 43, 45, Shutting up in a room, threatening with weapons to extort a promise, is false imprisonment. Hildebrand ↑. McCrum, 101 Ind. 61. But it is not if one goes with another voluntarily though hoaxed. State v. Lunsford, 81 N. C. 528.

Bird v. Jones, 7 Q. B. 742. But see, Harkins v. State, 6 Tex. App. 457.

Restraints in certain Relations. The justification of impris onment may be either under process or without process. In certain relations a degree of restraint is permitted by the law, for which no writ or legal process of any sort is usually required. The following are the cases referred to: The parent in respect to the child, the guardian in respect to the ward, the master in respect to his apprentice, the teacher in respect to his pupil, and the bail in respect to his principal. The latter it is usual to regulate by statute, and one of the regulations is, that arrest and imprisonment, shall not take place without the exhibition of proper papers showing the relation and the rights under it. The others. are cases resting upon principles which are so familiar that little *need be said concerning them here. Re- [*171] straints are admissible within such limits as the parent, guardian, teacher, or master, in the exercise of a sound discretion, nay decide to be necessary. To a certain extent a judicial power is vested in him which others are not at liberty to interfere with, except in a case of manifest abuse. To take by itself the case of the parent, though the old ideas regarding the need of severity and strict discipline have to a large extent passed away, the father may still not only restrain the liberty of his infant child, but he may, as reason shall seem to him to require, inflict corporal punishment for misbehavior. The limit to his authority is that uncertain limit that the correction must be moderate, and dictated by reason and not by passion.' If he plainly exceeds all bounds, he is liable to criminal prosecution, but it seems never to have been held that the child might maintain a personal action for his injury. In principle there seems to be no reason why such an action should not be sustained; but the policy of permitting actions that thus invite the child to contest the parent's authority is so questionable, that we may well doubt if the right will ever be sanctioned.

A guardian of the person of his ward has a right of personal restraint corresponding to that of the parent, but without, in general, the power of chastisement. That power would probably be possessed in extreme youth if the ward were received into the family of the guardian, who thus was placed, in respect to him, in loco parentis.

1Johnson v. State, 2 Humph. 283. Winterburn v. Brooks, 2 C. & K. 16.

The relation of master and apprentice is formed under statutes, and these give the master the authority he possesses. A power of restraint to a limited extent, to compel performance of duties under the articles, he probably possesses, but it is not clear that this is true generally. By the English law the master possessed the authority of moderate personal chastisement when his judgment advised it.'

The teacher to whom a child is committed by his parents or guardian has also the right of restraint, and even of punishment, to compel obedience to lawful orders. Like the parent's, the au

thority must be exercised with moderation, and while all [*172] *presumptions favor the correctness of his action," yet, in

a clear case of abuse of authority, he may be held liable as for a criminal assault, and also in a civil suit for damages.' The authority of the bail in respect to his principal, for whose conduct he has become responsible, is to arrest and surrender him in exoneration of his liability. It is a limited authority and must be exercised without needless violence or annoyance."

Circumstances may place one in authority over another, when restraint would not only become excusable, but a duty. Thus, the safety of a ship, its passengers and crew, might depend upon the strict subordination of all persons on board; and all persons must then, of necessity, submit themselves to the proper orders of the master."

1 See Penn v. Ward, 2 C. M. & R., 338. One employed for another under contract for service is not liable to punishment by the master. Schouler Dom. Rel. 616; Mathews v. Terry, 10 Conn. 455.

2 Cooper v. McJunkin, 4 Ind. 290; State v. Pendergrass, 2 Dev. & Bat. 365; Commonwealth v. Randall, 4 Gray, 36; Hathaway 7. Rice, 19 Vt. 102. Sheehan v. Sturges, 53 Conn. 481; Danenhoffer v. State, 69 Ind. 295. Not liable for error of judg ment when he has acted in good faith. Heritage v. Dodge, 9 Atl. Rep. 722 (N. H.) Fertich o. Michener, 111 Ind. 472. Not liable for false imprisonment in detaining a pupil a short time after school hours. Id.

• Commonwealth v. Randall, 4 Gray, 86; Lander v. Seaver, 32 Vt. 114 Patterson v. Nutter, 78 Me. 509. It has been held that if the child's parent gives him directions what to do, the teacher has no right to punish the child for obeying them. Morrow . Wood, 35 Wis 59. At least in the absence of a compulsory education law. State v. Misner, 50 Ia. 145. If such directions interfered with school regulations, expulsion would seem to be the proper remedy.

4 See Cooley, Const. Lim. 341, and

note.

5 Brown v. Howard, 14 Johns. 119; Flemming v. Ball, 1 Bay, 3.

Requisites of Legal Process. Excepting the cases already named, and a few more which will be referred to further on, whoever would justify an arrest must have legal process duly emanating from some judicial authority. This process must be pleaded, and it must have certain requisites, in order to render it available as a defense. Speaking generally, these requisites are the following: It must have been issued by a court or officer having authority of law to issue such process, and there must be nothing on the face of the process apprising the officer to whom it is delivered for service, that in the particular case there was no authority for issuing it. When the process will bear this test, the officer is protected in obeying its command.

As the rules of protection by process are the same, whether unlawful restraint upon the person is in question, or unlawful intermeddling with goods, it will be convenient to postpone a particular consideration of them until trespasses to property are discussed. In this place only a very few general rules will be mentioned.

*1. A writ may be absolutely void because it does not [*173] emanate from the court or officer purporting to issue it. This may happen because it is forged, or because some unauthorized person has assumed to fill out and issue process in the name of a magistrate. It has been decided in New York, and also in Illinois, that if a justice of the peace, who, by law, has authority to issue writs in person, shall deliver blanks to an officer, with leave to fill them up at discretion, and then issue them, such permission would be void, and the writs issued in pursuance of it nullities. It should be said that in those States the justice is the clerk of his court, as well as the judge of it.

2. A writ may be void because it proceeds from a court or magistrate having, by law, no jurisdiction of the subject matter, either generally, or to the extent to which it has been assumed. Illustrations of this will be given in another place. It is enough to say now, that when this defect exists, it will generally appear

'Pierce v. Hubbard, 10 Johns. 405; People v. Smith, 20 Johns, 63; Rafferty . People, 69 Ill. 111; S. C. 72 Ill. 37; S. C. 18 Am. Rep. 601. See, also, Burslem v. Fern, 2 Wils. 47. Where one has caused the arrest of a person on one charge and the

justice changes the charge and inflicts a fine for something else, the complainant is not liable for damage arising from the illegal acts of the justice. Frankfurter . Bryan, 12 Ill. App. 549.

on the face of the proceeding, though the rule is by no means universal.'

3. The writ may also be void because it emanates from an inferior court or officer, whose jurisdiction is never presumed, but must be shown, and is not shown on the face of the proceedings. In such cases there may have been jurisdiction in fact, but because it is not shown, it is as if it did not exist. If, for example, a magistrate issues a warrant for committing one to prison without reciting therein an accusation, a trial, and a conviction, he issues a process which is apparently unwarranted, and the officer to whom it is delivered is bound to know that he would not be protected in serving it.'

'But where the jurisdiction depends not on matter of law, but on matter of fact which the court or magistrate is to pass upon, the decision upon it is conclusive, and a protection not only to the officer serving process, but to the court or magistrate also. Brittain. Kinnard, 1 Brod. & B. 432; Mather v. Hood, 8 Johns. 44; Mackaboy v. Commonwealth, 2 Virg. Cas. 268; Clarke v. May, 2 Gray, 410; State v. Scott, 1 Bailey, 294; Wall . Trumbull, 16 Mich. 228; Sheldon v. Wright, 5 N. Y. 497; Freeman on Judgments, § 523, and cases cited. Lange v. Benedict, 73 N. Y. 12; Bocock v. Cochran, 32 Hun, 521. See, Goodwine v. Stephens, 63 Ind. 112. The party who does nothing but make the complaint is not liable though in fact there is no jurisdiction. Langford v. Boston, etc., Co., 144 Mass. 431. Unless in the affidavit for the writ there is entire lack of evidence of a jurisdictional fact. Dusy v. Helm, 59 Cal. 188. But where a justice upon a complaint showing on its face that the offense charged was barred by time, issues process and commits the prisoner, he is liable. Vaughn v. Congdon, 56 Vt. 111. And one may be liable who draws up complaint and warrant, takes latter from the magistrate and gives it to the officer

with orders to arrest at any cost. Loomis v. Render, 41 Hun, 268. If an order of arrest is made by a judge having jurisdiction, the party and attorney is protected though the order be set aside afterward or reversed on appeal. Marks v. Townsend, 97 N. Y. 590. Bamberger o. Kahn, 43 Hun, 411; Fischer v. Langbein, 103 N. Y. 84.

.

2 The officer is bound to know the law, and that his writ is bad on its face, if such is the fact. Grumon . Raymond, 1 Conn. 39; Lewis Avery, 8 Vt. 287; Clayton v. Scott, 45 Vt. 386. So if examining magistrate convicts and constable takes to jail. Patzack v. Von Gerichten, 10 Mo. App. 424. In serving a valid process, he is liable only for acts not authorized by it. Gage . Barnes, 11 Vt. 195; Churchill . Churchill, 12 Vt. 661. But for such acts he may be treated as a trespasser. Coffin t. Field, 7 Cush. 355; Morse v. Reed, 28 Me. 481; Smith v. Gates, 21 Pick. 55; Gordon v. Clifford, 28 N. H. 402; Cate v. Cate, 44 N. H. 211. This is so, even where that which he did was done by command of his official su perior, who, in giving the command, exceeded his lawful authority. Griffin v. Wilcox, 21 Ind. 370; Jones . Commonwealth, 1 Bush. 34.