an action for It is proper to take notice, that by the 21 Jac. 1. c. 16, an assault and battery must be brought within four years. But this must be taken advantage of by pleading, and therefore where the plaintiff by mistake pleaded non culp. infra sex annos, upon demurrer it was holden to be an ill plea.—Blackmore v. Tidderly, H. 1705. Salk. 423. Ld. Raym. 1099. (a) (a) But the demurrer in this case must be special. Macfadzen v. Oliphant, 6 East, SSS. As to the costs in this action, see Selw. N. P. Abr.. 35.37. CHAPTER IV. OF FALSE IMPRISONMENT. EVERY restraint of a man's liberty under the custody of another, either in a gaol, house, stocks, or in the street, is in law aur imprisonment; (a) and whenever it is done without a proper authority, (a) To constitute the offence of false imprisonment, it is necessary to shew what sort of detention has been considered unlawful. First, then, for the arrest of an executor or administrator without a suggestion of a devastavit, this action lies not only against the plaintiff, but against the attorney who issued the writ. Barker v. Braham, 3 Wils. 368. But there is a distinction between persons not liable to arrests and those privileged therefrom, for the latter cannot maintain this action; as a witness returning from the court. Cameron v. Lightfoot, 2 Bla. 1190; for the officer arresting him was compelled so to do by the compulsory writ, and it is the same with peers, certificated bankrupts, insolvent debtors, &c. Co. of Rutland's' Ca. 6 Co. 52. Turleton v. Fisher, Dougl. 666, (671). Yet for an arrest on a Sunday this action lies. Wilson v. Tucker, Salk. 78. Taylor v. Freeman, Selw. N. P. Ab. 808 (n.) So for the arrest of a wrong person it lies, though such person affirm himself to have the same name as defendant. Coot v. Lightworth, Mo. 457. Thurbane's Ca. Hard. 323; but in such a case the court will give nominal damages only. Oxley v. Flower, Selw. N. P. Ab. 806, in which it was laid down by Kenyon, C. J. that every imprisonment included a battery; the court, however, in Emmett v. Lyne, 1 Bos. and Pull. N. R. 255, treated that idea as absurd. So for an arrest upon process, which is void or irregular, this action lies. Barker v. Braham, 2 Bla. 866. 3 Wils. 36S. Burslem v. Fern, 2 Wils, 47. Parsons v. Lloyd, 2 Wils. 341. 2 Bla. 845. Philips v. Biron, 1 Stra. 509, in which case a distinction was taken between an irregular and an erroneous process, viz. that if erroncous it is the act of the court, and the party shall not suffer by it; but if irregular, it is the act of the party or his attorney, against whom this action will lie. So for an arrest on an informal affidavit. Smith v. Boucher, 2 Stra. 993. Reeks v. Groneman, 2 Wils. thority, is false imprisonment, for which the law gives an action; and this is commonly joined to an assault and battery; for every imprisonment 226; or process, Johns v. Smith, Cro. Jac. 314. Allen v. Allen, 2 Bla. 694. So where an inferior court exceeds its jurisdiction, as the College of Physicians. Dr. Bonham's Ca. 8 Co. 114, this action lies, but not against the judge of such a court if of record. Groenvelt v. Burwell, Str. 474. Comy. 76. So where an inferior court has no jurisdiction at all. Higginson v. Martyn, Bull. N. P. 83. So where the proceedings of such a court are irregular. Crawley's Ca. Cro. Car. 567. So where such a court proceeds inverso ordine, though no action lies against the party suing, or any minister of the court for serving the process, yet as the whole proceedings are coram non judice, an action will lie against them all without any regard to the process. Marshalsea Ca. 10 Co. 76. And this principle has been recognized in many cases, as Nichols v. Walker, Cro. Car. 395. Hill v. Bateman, Stra. 711. Shergold v. Holloway, Stra. 1002. Perkin v. Proctor, 2 Wils. 384. Browne v. Compton, 8 T. Rep. 424. So against a justice of peace, for a commitment for a penalty without previously issuing his warrant of distress, this action lies. Hill v. Bateman, sup. and so for a detention for fees not demandable. Smith v. Sibson, 1 Wils. 153. And so against commissioners of bankrupt for a commitment not warranted by their authority. Dyer v. Missing, 2 Blac. 1035. Miller v. Seare, 2 Blac. 1141. Battye v. Gresley, 8 East, 319. But there are cases in which an arrest or detention has been considered legal or justifiable, as where the process issues from a court having cognizance of the cause, but there is a distinction between officers and private persons. If the action be against the sheriff, he may justify by shewing the writ. So in the case of his bailiff, with this difference, that the sheriff must shew the writ returned, if returnable, which his bailiff cannot do; but if the action be against the plaintiff in the arrest, or a stranger, they cannot justify without shewing a judgment as well as an execution. Britten v. Cole, Salk. 408. Co. of Rutland's Ca. 6 Co. 52. A second good justification is where an officer apprehends another upon a charge of felony, (though without a warrant for his apprehension) and carries him before a magistrate, for in such a case he that makes the charge alone is answerable. Samuel v. Payne, Dougl (346) 360. Ledwick v. Catchpole, Cald. 294. S. P. So a bailiff may justify retaking his prisoner before the return of the writ on mesne process, though he permitted him to go at large. Atkinson v. Mattison, 2 T. R. 172; but after a voluntary escape, the sheriff cannot retake his prisoner. Atkinson v. Jameson, 5 T. R. 25. But where the arrest is by warrant, the bailiff must shew that the warrant was legal, 2 Inst. 46, and not a bare warrant of a justice for servants wages. Shergold v. Holloway, 2 Stra. 1002. But if a constable shews a warrant to a man whom he is going to arrest, and he voluntarily submits to go with him, this is not such an arrest as will enable a man to support this action. Arrowsmith v. Le Mesurier, 2 Bos. and Pull. N. R. 211. for bare words will not make an arrest. Genner v. Sparks, Salk. 79. Thirdly, Secretaries of state may justify a commitment on a suspicion of treason, for it is incident to their office, and a commitment to a messenger is good. R. v. Kendall, 1 Salk. 347. But they have no power to issue a general warrant to arrest the person prisonment includes a battery, and every battery an assault.—Co. Lit. 253. (a) The 21 Jac. 1. limits this action to four years; but if an action be brought for detaining the plaintiff in prison, from to and the defendant plead (as he may) as to part not guilty infra quatuor annos, the plaintiff may reply that it was one continued imprisonment; and so oust the defendant of the benefit of the statute.-Coventry v. Apsley, M. 3 W. S. Salk. 420. Post. 24. S. P. in Pickersgill v. Palmer. Declaration of Mich. term, of an assault on the 18th of October, and an imprisonment from thence for twenty-five weeks; on motion in arrest of judgment, the court held that the continuance being laid under a scilicit, will not vitiate what is properly laid in time, and that this differs from all the cases where the time is affirmatively laid.-Webb v. Turner, 11 Geo. 2. Stra. 1095. Trespass against J. G. widow; and pending the suit she took husband; after judgment a writ was directed to the sheriff quod caperet J. G. ad satisfaciendum, upon which the sheriff took the defendant; whose husband, together with her, thereupon brought an action of false imprisonment against the sheriff, who justified under the ca. sa. the plaintiff demurred; and per cur. If an action be brought against a [ *23 ] widow, who before judgment takes an husband, yet if she be found guilty, the ca. sa. shall be awarded against her, and not against her husband. Judgment for the defendant.—Doyley v. White, T. 11 Jac. t. Cro. Jac. 393. (b) * person or seize the papers on a gene- So may commanding officers in So may the captain of an Indiaman imprison a passenger who refuses to take the station assigned to him on the approach of an enc my. Boyce v. Bayliffe, 1 Camp. 60. And if, while the captain was in the act of putting the plaintiff in irons, another person assaults the plaintiff, he is jointly guilty of the false im prisonment. Boyce v. Campbell, ibid. So for detaining the mariners of a ship taken as a lawful prize, this ac Where tion lies not, though she be not afterwards condemned, for the court of admiralty can give damages for the detention. Le Caux v. Eden, Dougl. 572, (594.) (a) Where the immediate act of imprisonment proceeds from the defendant, the action must be trespass, and trespass only, but where it is by one person, in consequence of information from another, there an action on the case is the proper remedy. Morgan v. Hughes, 2 T. Rep. 231. And per Buller, J. There is no distinction between a malicious commitment and a malicious prosecution. S. C. (b) In actions against husband and wife, if the suit be for a debt of the wife dum sola, and judgment be for the plaintiff, both may be taken Where an officer and another join in the same justification, if it be not sufficient for the officer, neither is it for other, (Middleton v. Price, E. 16 Geo. 2. Str. 1184.); and wherever an officer justifies an imprisonment under a writ which he ought to return (and all mesne process ought to be returned) he must shew that the writ was returned; but it is otherwise in the case of a subordinate officer, such as a bailiff, for he is only to execute the sheriff's warrant. (Smith v. Boucher, M. 8 Geo. 2. Str. 993. (a) If the action be brought against him who was plaintiff, he cannot justify by virtue of an execution, unless he likewise shew there is a judgment; for the judgment may be reversed, and it ought to be at his peril that he takes out execution afterwards: but it is enough for the sheriff to shew a writ, and if any one come in aid of the officer at his request, he may justify as the officer may do, but such request is traversable.-Britton v. Cole, Salk. 409. (b) The officer cannot justify an imprisonment for non-payment of taxes, under the general printed warrant which the collectors have, signed by two justices; but he ought to have a special warrant.—Masters v. Boucher, 11 W. 3. 1 Raym. 740. The defendant justified an imprisonment for that the plaintiff was indebted to him in a debt of £20, and he took out a latitat against him, directed to the sheriff, &c. which is the same imprisonment, &c. The plaintiff in his replication traversed that he owed him so much money; after verdict for the plaintiff it was moved in arrest of judgment, that the debt being but inducement to the justification was not traversable, and a repleader was awarded.-Hillyfield v. Stanyford, M. 25 Car. 2. C. B. (c) in execution, for that must follow (a) In this case it was said that an officer, by joining with one to whom the process was no justification, forfeited his own justification. (b) Where a man is arrested for debt, the sheriff is not bound to release him unless he receives a written discharge from the plaintiff; and after receiving such discharge, he Note, may detain him a reasonable time (say twenty-fours) to search the of fice, for the officer is not bound to make the search till the written discharge arrives. Taylor v. Brander and Another, Sheriffs of London, 1 Esp. N.P.45. Quere tamen, whether twenty-four hours is not an unreasonable time to search the office in London, and whether the plaintiff's discharge, without that of his attorney, will suffice, for in practice the latter is always required. Note. In the principal case, defendant was detained twenty-six hours after the plaintiff's discharge arrived. (c) If a party be arrested without any cause of action, he has his remedy Note, that by 21 Jac. 1. c. 12, justices of the peace, mayors, bailiffs, churchwardens, and overseers of the poor, constables, and other peace officers, may plead the general issue, and give the special matter in evidence. It likewise enacts, that any action brought against them shall be laid in the proper county; and if upon the general issue pleaded, the fact shall appear to be done in another county, the jury shall find the defendant not guilty. Note likewise, that by 24 Geo. 2. c. 44, no writ shall be sued out against a justice for what he shall do in the execution of his office, till notice in writing of such intended writ shall have been delivered to him, or left at the usual place of his abode, a month before; (a) and the jus[*24] tice may tender * amends, and in case the same is not accepted, plead such tender in bar to the action, together with the plea of not guilty, and any other plea with leave of the court; and if upon issue joined thereon the jury shall find the amends so tendered to have been sufficient, then they shall give a verdict for the defendant. (b) It likewise enacts, that no action shall be brought against any constable or other officer, or any other person acting by his order, for any thing done in obedience to justice's warrant, until demand made of the perusal and copy of such medy by an action on the case for (a) No action can be brought (b) All that this statute requires is, that the notice shall contain two things: 1st. The writ or process which the plaintiff intends to sue out; 2d. The cause of action for which he of the particular process to be sued out, and that it was not enough to say that an action should be commenced against the magistrate for his said misconduct. Per Ellenborough, C. J. in Sabin v. De Burgh, 2 Camp. 197, plaintiff cannot give notice of one form of action and declare in another. Strickland v. Ward, 7 T. R. 631, (n.) Where a magistrate intends to act as such in a matter within his jurisdiction, however mistaken he may be, he is entitled to notice under this statute. Weller v. Toke, 9 East, 364. So where defendant, who was a justice of peace and also lord of a manor, went into the house of a blacksmith in the manor, in company with his gamekeeper, to search for engines to the destruction of game, and took away a gun which had been left to be repaired. It was held, that he should be presumed to have acted as a justice, though he had acted wrong, and therefore that he ought to have received notice. Briggs v. Evelyn, 2 II. Bla. 114. warrant, |