ing of this act, severally cease and determine; provided that the act of aiding and assisting as aforesaid, and in the said act mentioned, shall be done in the company or presence and for the use of another person who shall duly have obtained a certificate in his own right, according to the directions of the said act, and who therein shall, by virtue of such certificate, then and there use his own dog, gun, net, or other engine, for the taking or killing of such game, &c., and who shall not act therein by virtue of any deputation or appointment.

By stat. 2 & 3 Vict. c. 35, s. 3, all game certificates are to expire on the 5th July instead of the 5th April; and by sect. 4, justices of the peace are authorized to hold special sessions, for the purpose of granting licenses to deal in game, at any time after July in every year, as well as in July, as enacted by stat. 1 & 2 Vict. c. 32, s. 18, and under similar regulations as to notice, &c., and the licenses are to continue till the 1st July next following.

CHAPTER XXIV.

IMPRISONMENT.

I. Of the Nature of the Action for false Imprisonment, and in what Cases it may be maintained, p. 915.

II. Statutes relating to the Action for false Imprisonment. 21 Jac. I. c. 12, p. 922; 24 Geo. II. c. 44, p. 923.

III. Of the Pleadings, p. 929.

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 (a). For this injury an action of trespass vi et armis lies, usually termed an action for false imprisonment. An unlawful detention is a new caption, and may be declared on as such (b). An arrest on mesne process, which is not returned, is wrongful (c), and false imprisonment will lie against the sheriff (d); so if an officer of an inferior court does not return 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 (e); 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 commission of rebellion issued against I. G. appeared before the

(a) Per Thorpe, C. J., 22 Ass. fo. 104, pl. 85.

(b) Cro. Jac. 379.

(c) 2 Rol. Ab. 563, pl. 9.

(d) Id. pl. 18.

VOL. II.

(e) Per Hankford, J., 11 Hen. IV. 91, a. See also Thurbane and another, Hardr. 323, per Hale, C. B.

(f) Moor. 457; Hardr. 323, S. P.

commissioners, and affirmed himself to be the person; whereupon they apprehended him by virtue of their commission. Per Hale, C. B. (g)," 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 officer (h) 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 sponginghouse, 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 (i). If a magistrate's warrant is shown by the constable (k), 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 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 (1), 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.

Where after the suing out of a writ of ca. sa. upon a judgment in an action of debt, the plaintiff in that action gave a release to the defendant, and told the sheriff, "I have given a release; you must not go on to execute the writ ;" and the sheriff afterwards executed

(g) Hardr. 323, upon motion for an attachment against G. which was granted.

(h) Oxley v. Flower, B. R. Middx. Sittings, Dec. 4, 1800, MSS. See Morgans v. Bridges, 1 B. & A. 647, and Brunskill v. Robertson, 9 A. & E. 840.

(i) Per Ld. Ellenborough, C. J., Price

v. Harwood, 3 Campb. 108.

(k) Arrowsmith v. Le Mesurier, 2 Bos. & Pul. N. R. 211. See also Bieten v. Burridge, 3 Camp. 139; Peters v. Stanway, 6 C. & P. 737; Wood v. Lane, 6 C. & P. 774.

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

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

the writ, it was holden, that he was liable in an action of trespass (m).

An action for false imprisonment was brought by a native and inhabitant of Minorca (n), (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 injuria suâ propriâ. After verdict for plaintiff, with 3,000l. 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. 2ndly, 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 show that he was not subject to the impress service. The defendant went to the place of rendezvous (o) 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 Lord Ellenborough,

(m) Barker v. St. Quintin, 12 M. & W.

441.

(n) Mostyn v. Fabrigas, in error, M. T.

15 Geo. III. B. R. Cowp. 161 (2).

(0) Flewster v. Royle, 1 Campb. 187, Ld. Ellenborough, C. J.

(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.

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 imprisonment (p), 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 warrant (q), 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 lie (r) 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 (s), 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. And where an arrest is made under process which is afterwards set aside for irregularity, the attorney in the suit is liable in trespass, as well as the plaintiff (t). If A., having been robbed (u), 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 imprisonment (x). 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 (y); for by stat. 29 Car. II. 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

(p) Le Caux v. Eden, Doug. 594. (g) Wenman v. Fisher, M. 2 Geo. II., B. R. MSS., cited in R. v. Banghurst, H. 5 Geo. II. B. R., Sess. Ca. vol. 1, p. 149. (r) Barker v. Braham, 3 Wils. 368.

Bates v. Pilling and another, 6 B.

& C. 38.

(t) Codrington v. Lloyd, 8 A. & E. 449. (u) Stonehouse v. Elliott, 6 T. R. 315. (x) Atkinson v. Matteson, 2 T. R. 172. (y) Wilson v. Tucker, Salk. 78; 5 Mod. 95, S. C.

(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