FALSE IMPRISONMENT. BARKER V. BRAHAM, leading case. TIMOTHY V. SIMPSON, leading case. ALLEN v. WRIGHT, leading case. Note on False Imprisonment. Historical aspects of the subject. Arrests with warrant. Arrests without warrant. BARKER, Administratrix v. BRAHAM and NORWOOD. (2 W. Black. 866; s. c. 3 Wils. 368. King's Bench, Hilary Term, 1773.) Void ca. sa. sued out by Attorney. Action of false imprisonment lies against the plaintiff's attorney, who sues out an illegal and void ca. sa. against the defendant, and delivers it himself to the officer, who by his order arrests the defendant thereon. TRESPASS and false imprisonment. Joseph Barker, the husband of the plaintiff, was indebted on bond to Jenny Braham in 4007., conditioned for the payment of 2007. Braham, on the death of Barker, brought her action in the King's Bench against the plaintiff, his administratrix, and recovered judgment for want of a plea, the 31st of January, 1769. On the 1st of February, a fieri facias issued, marked to levy 2397. 118. 2d., debt and costs of the goods of Joseph Barker, if, &c.; if not, then damage de bonis propriis. The sheriff levied 1647. 98. of the intestate's goods, out of which he paid 381. for rent, and on settling the account there remained due to the plaintiff Braham 1027. 188. 1d., for which (without suggesting any devastavit) Norwood (as attorney for Braham) sued out a ca. sa. against Barker on the 13th of February, reciting what had been levied under the fi. fa., and directing the sheriff to take her body for the residue of the debt and damages. This was personally delivered by Norwood to Armstrong, the bailiff, with orders to execute it immediately. He accordingly arrested her the 15th March, 1769, and she lay in custody till the 18th of November following, when, upon motion to the Court of King's Bench, the ca. sa. was set aside for irregularity, and the then defendant, Barker, discharged out of custody. For this illegal imprisonment Barker brought this action against Braham, the plaintiff, and Norwood, the attorney in the original cause; and, on the general issue pleaded, the jury gave her 1507. damages. And in last Michaelmas Term, Sayer moved for a new trial, because the damages were given against Norwood, the attorney, as well as against Braham; and no action, he alleged, lay against the attorney for such false imprisonment by a mistake in the conduct of a cause. Davy and Burland showed cause. Sayer and Glyn, in support of the rule. DE GREY, C. J. It is clear the plaintiff Barker has been injured, the ca. sa. being illegally taken out (1 Lev. 95; Raym. 73) ; which is recognized as good law in Prigg and Adams, Carth. 274; Salk. 674; 12 Mod. 178; 2 Wilson, 385. The persons injuring are either the officer arresting, Braham, the original plaintiff, or Norwood, the attorney, or some, or all of them. The officer is not sued. If he had been, he might clearly have justified under the writ, though that be not set aside. 1 Roll. Rep. 403. The plaintiff, when sued for imprisonment by process, which he had procured to be taken, must plead the general issue, and give in evidence the judgment, and a regular writ. Sir T. Jones, 215; Stra. 509: he is answerable for the act of his attorney as if his own. So held the last term in the case of Parsons and Lloyd. The attorney has also denied the fact of false imprisonment, by pleading the general issue. Indeed he could not justify by so qualifying the act as to show there was no assault or imprisonment; but he says that what he has done is not by law a trespass. To establish this, it is said that the act of an attorney in such a case is only the act of a servant or messenger, who conveys the plaintiff's orders. But attorneys were always of a higher estimation in the law than this construction would make them; and their powers are very great, as stated in Bracton, 369. Now, there being no accessaries in trespass (Co. Litt. 57), the attorney must either be guilty as a principal or not at all. And it is held, that a trespasser may be not only he who does the act, but who commands or procures it to be done (Bro. Trespass, 148, 307); who aids or assists in it (Bro. Trespass, 232; Salk. 409; Pulton De Pace, 22, 4, 49); or who assents afterwards (Bro. Trespass, 113). According, then, to this doctrine, Braham virtually (by the medium of her attorney, whose acts are imputable to her), but Norwood actually, by commanding the arrest, is guilty of the present trespass. I allow that an attorney is not chargeable to the defendant for bringing an action, be it ever so groundless or vexatious, for therein he pursues his instructions, and the plaintiff only knows the true merits. 36 Hen. 6, 37; 26 Hen. 6, 34; 2 Keb. 88. (Add 1 Roll. R. 408, 1 Mod. 209). But in the conduct of a cause, if he does an injury to the plaintiff by suing out a void process, an action on the case will lie at the common law (for the writ of deceit was added by stat. Edw. 1), in case the injury be done to his property. And of course if the injury be to the person, trespass will lie against him. In the present case, the evidence of the personal injury is extremely strong; for Norwood gave this void writ to the officer with his own hands, and ordered him to arrest Mrs. Barker. And the permitting this action to be brought against Norwood in the first instance prevents that circuity which is disgraceful to justice; for it is allowed that Braham is answerable to Barker, and Norwood to Braham. No reason, therefore, that Norwood should not be immediately answerable to Barker. GOULD, BLACKSTONE, and NARES, JJ., concurred that this action well lay against the attorney; whereupon the Rule was discharged. WEST v. SMALLWOOD. (3 Mees. & W. 418. Exchequer, England, Easter Term, 1838.) Jurisdiction. Officer's Liability. Where a party lays a complaint before a magistrate on a subject-matter over which he has a general jurisdiction, and the magistrate grants a warrant, upon which the party charged is arrested, the party laying the complaint is not liable as a trespasser, although the particular case be one in which the magistrate had no authority to act. The complainant having accompanied the constable charged with the execution of the warrant, and pointed out to him the person to be arrested, held, that this was evidence to go to the jury of a participation in the arrest. TRESPASS for assault and false imprisonment. Plea, the general issue. At the trial before Lord Abinger, C. B., at the Middlesex sittings after Hilary Term, it appeared that the plaintiff was a builder, and had been employed by the defendant to build some houses for him under a specific contract. Whilst the work was going on a dispute arose between the plaintiff and defendant, and the plaintiff in consequence discontinued the work, upon which the defendant went before a magistrate and laid an information against him, under the Master and Servant's Act, 4 Geo. 4, c. 34, § 3. The magistrate having granted a warrant, the defendant accompanied the constable who had the execution of it, and pointed out the plaintiff to him. Upon being brought before the magistrate, the complaint was heard and dismissed. Lord Abinger, C. B., was of opinion that the action was misconceived, and should have been in case; and thought that the evidence of interference in the arrest by the defendant was too slight to make him a trespasser; and the plaintiff's counsel not having pressed his lordship to lay that question before the jury, the plaintiff was nonsuited. Kelly now moved to set that nonsuit aside, and for a new trial. It is conceded, that when an information is laid before a magistrate in a case over which he has jurisdiction, and the magistrate grants a valid and legal warrant, on which the party is apprehended, the party cannot bring trespass, but must sue in case. In such case the magistrate is bound to issue his warrant, and is not a trespasser, because he is acting within his jurisdiction; nor is the officer a trespasser, because he acts under the warrant. But that rule only applies to a case where the magistrate has jurisdiction. If a complaint be made, and the magistrate be put in motion by the party complaining, in a matter over which he has no jurisdiction, he is a trespasser, and all who act with or under him are trespassers also, because in trespass there is no distinction between principals and accessaries. There is, perhaps, no decision in point on this particular statute, but the case of Moravia v. Sloper, Willes, 30, may be applied by analogy. It was there held, that when a party pleads a justification under the process of an inferior court he must show that the cause of action arose within the jurisdiction of that court. In Rafael v. Verelet, Sir W. Black. 983, 1055, where the defendant had made a com plaint to a sovereign prince in India, who had in consequence imprisoned the plaintiff, it was held that trespass was maintainable. [LORD ABINGER, C. B. I do not see in what way the defendant can be a trespasser. He goes to a magistrate, and calls upon him to exercise his judgment, and though the magistrate, if he exceeds his authority, may be liable as a trespasser, the party who lays the complaint is not. ALDERSON, B. The complainant has nothing to do with the assumption of jurisdiction by the magistrate. LORD ABINGER, C. B. The party does no more than lay the facts before the magistrate, who exercises his discretion judicially in granting a warrant. This distinguishes it from the case of a sheriff, who is put in motion by the party, as he does not act judicially; but in this case the defendant does not put the magistrate in motion; he applies to a magistrate having a general jurisdiction over the subject-matter, and makes his complaint, and the magistrate acts upon it or not, at his discretion. ALDERSON, B. In Rafael v. Verelet, Lord Chief Justice De Grey says, Sir W. Black. 1085: "I consider the Nabob as not being the actor in this case; but the act to be done in point of law by those who procured or commanded it, and in them it doubtless is a trespass;" so that he considers the Nabob not as the actor.] There is another ground upon which the case ought to have gone to the jury, because here the defendant acted personally in the arrest, and pointed out the plaintiff to the constable. Hardy v. Ryle, 9 B. & Cr. 603, and Lancaster v. Greaves, ib. 628, are authorities to show that the statute 4 Geo. 4, c. 34, gives the magistrate authority only in cases where the relation of master and servant exists, and does not extend to such a case as the present. The magistrate, therefore, had no right to grant a warrant, unless he was clearly satisfied that the relation of master and servant existed. The onus of justifying the participation by the defendant in making the. arrest lies on the defendant, and the plaintiff may maintain the action without producing the warrant. Holroyd v. Doncaster, 11 Moore, 441; 3 Bing. 492; Elsee v. Smith, 1 Dowl. & Ry. 97; 2 Chit. 304. LORD ABINGER, C. B. I retain the opinion which I expressed at the trial. Where a magistrate has a general jurisdiction over the subject-matter, and a party comes before him and prefers complaint, upon which the magistrate makes a mistake in thinking it a case within his authority, and grants a warrant which is |