CHAPTER VI. FALSE IMPRISONMENT. 1. Definition of false imprisonment; actual seizure unnecessary. 3. Form of action-trespass vi et armis. 4. Pleading and evidence. 7. Continuando. 11. Defence or justification - legal process-officers and parties. 16. Arrest and imprisonment, without warrant, in case of actual or suspected crime-by constables and other officers. 20. By private persons. 22. Malicious arrest. 27. Questions for the Court and jury. 1. A VERY frequent and important instance of assault and battery, is that technically termed false imprisonment, which consists in the unlawful restraint of a person contrary to his will, either with or without process of law. The subject of course involves many nice points connected with the general, constitutional right of personal liberty, (a) as limited 1 Bouv. L. D. (a) The prevailing judgment of the Courts in this country is, that the provisions of the United States and of the several State constitutions, relating to personal liberty, have not materially affected the right of arresting, under some circumstances, without a legal warrant. It is said, "It has been sometimes contended, that an arrest of this character, without a warrant, was a violation of the great fundamental principles of our national and state constitutions, forbidding unreasonable searches and arrests, except by warrant founded upon a complaint made under oath. These provisions doubtless had another and different purpose, being in restraint of general warrants to make searches, and requiring warrants to issue only upon a complaint made under oath. They do not conflict with the authority of constables or other peace-officers, or private persons under limitations, to arrest without warrants those who have committed felonies. As to the right appertaining to private individuals to arrest without a warrant, it is a much more restricted authority, and is confined to cases of the actual guilt of the party arrested; and the arrest can only be justified by proving such and qualified by the liability to arrest and imprisonment, where the rights and safety of other parties require this guilt. But as to constables and other peace-officers, acting officially, the law clothes them with greater authority, and they are held to be justified, if they act, in making the arrest, upon probable and reasonable grounds for believing the party guilty of a felony; and this is all that is necessary for them to show, in order to sustain a justification of an arrest, for the purpose of detaining the party." Per Dewey, J., Rohan v. Sawin, 5 Cush. 285. So it is remarked in Pennsylvania, "The provisions of this section, (of the constitution of Pennsylvania,) so far as concerns warrants, only guard against their abuse by issuing them without good cause, or in so general and vague a form, as may put it in the power of the officers who execute them, to harass innocent persons under pretence of suspicion. But it is nowhere said, that there shall be no arrest without warrant. To have said so would have endangered the safety of society. The felon who is seen to commit murder or robbery must be arrested on the spot or suffered to escape. So although not seen, yet, if known to have committed a felony, and pursued with or without warrant, he may be arrested by any person, and even when there is only probable cause of suspicion, a private person may without warrant at his peril make an arrest. I say at his peril, for nothing short of proving the felony will justify the arrest. These are principles of the common law, essential to the welfare of society, and not intended to be altered or impaired by the constitution. The whole section, indeed, was nothing more than an affirmance of the common law, for general warrants have been decided to be illegal; but as the practice of issuing them had been ancient, the abuses great, and the decisions against them only of modern date, the agitation occasioned by the discussion of this important question had scarcely subsided, and it was thought prudent to enter a solemn veto against this powerful engine of despotism." Per Tilghman, C. J., Wakely v. Hart, 6 Binn. 316. In this connection, we may refer to some other prominent instances of imprisonment, involving considerations of a public or political nature. Where a citizen of the United States is arrested as a spy, and detained in custody until that fact can be tried by a court-martial, the person arresting, and the commanding officer by whose orders he is detained, are liable for a false imprisonment; the plaintiff not being subject to the jurisdiction of a court-martial, and the alleged offence not being within the jurisdiction of such Court. Smith v. Shaw, 12 Johns. 257. To an action against the Speaker of the House of Commons, for forcibly and with the assistance of armed soldiers breaking into the messuage of the plaintiff, (the outer door being shut and fastened,) arresting him there, interference. The subject is also intimately connected with the rights and duties of judicial and ministerial officers, taking him to the Tower of London, and imprisoning him there; it is a legal justification, that a parliament was held, which was sitting during the period of the trespasses complained of; that the plaintiff was a member of the House of Commons; and that, the House having resolved, "that a certain letter, &c., in Cobbett's Weekly Register, was a libellous and scandalous paper, reflecting on the just rights and privileges of the House; and that the plaintiff, who had admitted that the said letter, &c. was printed by his authority, had been thereby guilty of a breach of the privileges of that House;" and having ordered that for his said offence he should be committed to the Tower, and that the Speaker should issue his warrant accordingly the defendant, as Speaker, in execution of the said order, issued his warrant to the sergeant-at-arms, to whom the execution of such warrant belonged, to arrest the plaintiff, and commit him to the custody of the Lieutenant of the Tower, to receive and detain the plaintiff in custody during the pleasure of the House; by virtue of which first warrant the sergeant-at-arms went to the messuage of the plaintiff, where he then was, to execute it; and, because the outer door was fastened, and he could not enter, after audible notification of his purpose, and demand made of admission, he, by the assistance of the said soldiers, broke and entered the plaintiff's messuage, and arrested and conveyed him to the Tower, where he was received and detained in custody, under the other warrant, by the Lieutenant of the Tower. Burdett v. Abbot, 14. E. 1. So the sergeant-at-arms, charged with the execution of such warrant, is not guilty of any excess of authority, which will make him a trespasser ab initio, if, upon the plaintiff's refusing to submit to the arrest, and shutting the outer door against the sergeant, who had demanded admission for the purpose, and declaring that the warrant was illegal, and that he would only submit to superior force; and a large mob having assembled before the plaintiff's house, and in the streets adjoining, so that the sergeant could not arrest and convey the plaintiff to the Tower without danger to himself and his ordinary assistants, if at all, by the mere aid of the civil power; the sergeant thereupon called in aid a large military force; and, after breaking into the plaintiff's house, placed a competent number of the military therein, for the purpose of securing a safe and convenient passage to conduct the plaintiff out of the house into a carriage in waiting, and thence conducted him with a large military escort to the Tower, using at the same time every personal courtesy to his prisoner consistent with the due execution of his duty; which however would not safely admit of delay in the execution of such warrant. Burdett v. Colman, 14 E. 163. which will be more fully considered hereafter; (a) and with the action for malicious prosecution. (b) 2. In general, no actual force, or manual touching of the body, no compulsory seizure, is necessary, to constitute arrest or imprisonment. "It is not necessary, that the person restrained of his liberty should be touched or actually arrested; if he is ordered to do or not to do the thing, to move or not to move against his own free will, if it is not left to his own option to go or stay where he pleases, and force is offered or threatened, and the means of coercion are at hand, ready to be used, or there is reasonable ground to apprehend that coercive means will be used, if he does not yield. A person so threatened need not wait for its actual application. His submission to the threatened, and reasonably to be apprehended, force, is no consent to the arrest, detention, or restraint of the freedom of his motion-he is as much imprisoned as if his person was touched or force actually used; the imprisonment continues, until he is left at his own will to go where he pleases, and must be considered as involuntary till all efforts at coercion or restraint cease, and the means of effecting it are removed." Thus, it is actionable to stop and prevent one by threats from passing along the highway. But, if a magistrate's warrant be shown by the constable to the person charged with an offence, and he thereupon, without compulsion, attend the constable to the magistrate, and after examination be dismissed; it seems, this is not such an arrest, as will support trespass and false imprisonment.3 So an action was held not to be maintainable, where the defendant, a schoolmaster, improperly, and under a claim for money due for schooling, refused to allow the mother of an infant scholar to take her son home with 1 Per Baldwin, J., Johnson v. Tomkins, 1 Baldw. 601. 2 Blower v. State, 3 Sneed, 66. 3 Arrowsmith v. Le Mesurier, 2 N. R. 211; acc. Berry v. Adamson, 6 B. & C. 528. (a) See Officer, Sheriff, Judge, Justice of the Peace. her, and the son, though frequently demanded by the mother, was kept at school during a part of the holidays; but there was no proof that he knew of the demand or denial, or that any restraint had been put upon him.1 3. As in other instances of assault, trespass, and not case, is the proper form of an action for false imprisonment.2 (a) Thus trespass is the proper remedy, for an arrest under process void in itself, or issued by a court without jurisdiction. As, for an arrest under a void warrant. So case will not lie for arresting one without cause of action, unless he be held to excessive bail.5 3 4. To sustain this action, it is sufficient to show such facts as constitute an unlawful imprisonment, without proof of all the collateral circumstances. Thus, in an action for a malicious arrest on a charge of felony, it is not necessary for the plaintiff to give in evidence the whole of the proceedings before the magistrates. So, on the other hand, the defence need prove only enough to constitute a legal justification. Thus in trespass for false imprisonment, and detaining the plaintiff in custody until he had paid eleven shillings, the defendant justified by virtue of an order of a court of conscience to pay ten shillings and fourpence, which not being paid, he took him, &c. Held good, without justifying for the whole eleven shillings.7 5. But a justification by process of law cannot be offered under the plea of not guilty. Thus the defendant cannot, under this plea, show a judgment and execution against the plaintiff, under which the arrest and imprisonment took place; even for the avowed purpose of proving that the defendant was not guilty of the trespass.s 1 Herring v. Boyle, 1 Cromp. M. & R. 377. 2 Stanton. Seymour, 5 McL. 267. 5 Neale v. Spencer, 12 Mod. 257. (a) See Case; and p. 214. |