to pay."(1) The plaintiff can have but one satisfaction in damages, though the assault be committed by several, whether the action be brought jointly or severally. In an action of assault, battery and wounding, against two, the one pleads to all, except the wounding, that it was in his own defence, and to the wounding, not guilty; the other justifies all in his own defence. The jury found the first guilty of the wounding, and assessed the damages 201., and found the issue also against the other defendant, and damages 1007. On error, because there ought to be but one judgment for damages, the court reversed the judgment, observing that though the defendants had severed in their pleas, yet when they were found both guilty of one and the same battery, one joint damage, ought to have been given by the jury against both. If two defendants in trespass suffer judgment by default, and the plaintiff execute writs of inquiry against them separately, and take several damages against them, it is irregular; but the court will permit the plaintiff to set aside his own proceedings, before final judgment, on payment of costs. false im 1.—When this action lies in general.] ANY illegal restraint stitutes a on the liberty of the person is denominated a false imprison- prisonment, for which an action of trespass vi et armis will lie. ment. a Brown v. Allen, 4 Esp. 158. Where there are several damages found in trespass, the plaintiff may either take judgment de melioribus damnis, or enter a remittitur. Sabin v. Long, 1 Wils. 30. But, Crane v. Hummerstone, Cro. Jac. 118. Hill v. Goodchild, 5 Burr. 2790. before judgment, the defect of the verdict may be cured, by the entry of a nolle prosequi against all the defendants, except one, and taking judgment against that one only. Rodney v. Strode, Carth. 19. Mitchell v. Milbank, 6 T. R. 199. (1) (If a plaintiff in trespass or trover against two or more defendants, has been permitted without objection, to give evidence showing that they had severally committed two or more trespasses or conversions, the jury may, and unless the plaintiff by his election dispense with it, ought to give a verdict finding them guilty severally, and assessing the damages-severally according to the evidence; after which the plaintiff, although he may not perhaps have judg ment against them severally, according to the finding of the jury, yet has a right to make his election, and to say for which of the sums assessed as damages, he will take judgment against whomsoever of the defendants it may be found, if he will at the same time enter a nolle prosequi against all the other defendants. Weakly v. Royer, 3 Watts, 460. Whether after the jury in an action of trespass against two or more defendants, have assessed several damages, the court can render judgment according to the finding dubitatur. Ibid. See Halsey v. Woodruff, 9 Pick. 555. If a constable tell a person given into his charge, that he must go with him before a magistrate, and such person in consequence goes quietly without any force being used by the constable, it is a sufficient imprisonment to support an action of trespass against the party who gave the plaintiff in charge. If a party acts himself in apprehending another, he may be liable in trespass; but if he falsely and maliciously, and without any probable cause, puts the law in motion, that is properly the subject of an action on the case. "If," said Eyre. C. J.," the constable, in consequence of the defendant's charge. had for one moment taken possession of the plaintiff's perso it would be in point of law an imprisonment, as if he had tapped him on the shoulder and said, 'you are my prisoner: or if she had submitted herself into his custody, such wond be an imprisonment; but the mere giving her in charge with out taking possession of her person, where nothing more passes than merely the charge, is not by law a false imprisonment." Where the plaintiff appeared before defendant, a magistrate, to answer the complaint of A. for unlawfully killing his dog: defendant advised plaintiff to settle the matter, by paying a sum of money, which plaintiff declined; defendant then said "he would convict plaintiff in a penalty under the trespass *1433 *act, in which case he would go to prison:" plaintiff still de clined paying, and said he would appeal; defendant then called in a constable, and said, "take this man out and see if they can settle the matter, and if not, bring him in again, as I must proceed to commit him under the act;" plaintiff then went out with the constable and settled the matter, by paying a sum of money; held, that this was an assault and false imprison ment for which trespass would lie; and which, as no convic tion had been drawn up, defendant could not justify. So, where the plaintiff was in the King's Bench prison, and the defendant served an order on the marshal to have him brought up, and on being brought up, he was committed by the court of King's Bench, on an attachment for nonpayment of costs, and detained in prison; held, to be an assault and imprisonment for which an action would lie; but that the judgment of the court, if specially pleaded, was a justification. But where a schoolmaster refused to give up a pupil to his mother, until some arrears of salary were paid, and detained him during the Christmas holidays; it not appearing that the boy was aware of the refusal, or in any way restrained; it was held, that a Chinn v. Morris, 2 C. & P. 361. (12 Eng. C. L. 171.) R. & M. 424. Pocock (21 Eng. C. L. 449.) And see Stonehouse v. Elliott, 6 T. v. Moore, R. & M. 321. R. 315. 1 Esp. 272. Per Bayley, J., in Elsee v. Smith, 1 D. & R. 103. 304. (18 Eng. C. L. 344.) C Per Eyre, C. J., in Simpson v. Hill, 1 Esp. 431. rest, see ante, 1290. e (16 Eng. C. L. 19.) 2 Chit. As to what constitutes an ar Bridgett v. Coyney, 1 M. & R. 211. (17 Eng. C. L. 244.) Bryant v. Clutton, 1 Mees, & Wels. 408, 2 Gale, 50, an action for false imprisonment could not be maintained by him." A person is not justified in giving a party in charge to a police officer, for insulting him or annoying him in the street; out he may give these circumstances in evidence in mitigation of damages, in an action for false imprisonment.b But bare words do not constitute an arrest; therefore, if an officer show his warrant to a party charged with an offence, and the latter voluntarily attend the officer to a magistrate, it is not such an arrest as will support trespass and false imprisonment; for the warrant is made no other use of than as a summons. If a person whose name is William, is asked, before process against him, whether his name is not John, and he replies in the affirmative, he cannot maintain trespass for im- *1434 prisonment under the process by the wrong name; for he shall not be allowed to avail himself of the mistake which he him. self has occasioned.e ficers. 2.-When this action lies against public officers.] The ge- Trespass neral rule of law as to actions of trespass against persons against having a limited authority is plain and clear. If they do any pers public ofact beyond the limit of their authority they thereby subject themselves to an action of trespass; but if the act done be within the limit of their authority, although it may be done through an erroneous or mistaken judgment, they are not thereby liable to such an action. Where a magistrate bona fide committed a person charged with a felony for re-examination for an unreasonable time, without an improper motive, it was held, that trespass for false imprisonment would lie against him, and that the commitment was void from the beginning; because the law did not authorise the magistrate to commit for an unreasonable time. The reasonableness of the time is a question to be decided by the jury under the direction of the judge.h So where a magistrate maliciously granted a warrant against another, without any information, upon a supposed charge of felony, it was held, that trespass would lie against him, for Herring v. Boyle, 1 C. M. & R. 377. 6 . & P. 496 (25) Eng. C. L. 508. Thomas v. Powell, 7 C. & P. 807. (32 Eng. C. L.) And see Fraser v. Berkley, id. 621. (32 Eng. C. L.) e Genner v. Sparks, 1 Salk. 79. d Arrowsmith v. Le Mesurier, 2 N. R. 211. Yet an arrest may be made without touching a person, as if a bailiff comes into a room, and tells the defendant he arrests him, and locks the door, that is an arrest, for he is in the custody of an officer. Per Lord Hardwicke, in Williams v. Jones, Cas temp. Hard. 301. 2 N. R. 212, n. Per Lord Ellenborough, C. J., in Price v. Harwood, 3 Camp. 108. See Morgans . Bridges, 1 B. & A. 647. Per Abbott, C. J., in Doswell v. Impey, 1 B. & C. 169. (8 Eng. C. L. 51.) Miller v. Seare, 2 Bl. 1141. : Davis v. Capper, 10 B. & C. 28. (21 Eng. C. L. 20. Id. 35. In this case the recommitment was for fourteen days, which the jury, under the direction of the judge, found to be unreasonable. SE | P G he was the immediate cause of the false imprisonment. *1435 the *case of a warrant, illegal on the face of it, for an exsti of jurisdiction, trespass is maintainable against the committ magistrate, although the conviction has not been quashed a An action for false imprisonment will lie against a superior a ficer, where the imprisonment at first was legal, but was afte wards aggravated by many circumstances of cruelty beyo ordinary bounds. So where a captain of a man-of-war in S prisoned a person for three days for a supposed breach of du without hearing him, and then released him without bringing him to a court martial. If a prisoner in execution escap by the voluntary permission of the gaoler, and the gaole retake him, he is liable in an action of false imprisonment The only difference between an arrest on mesne process ar in execution is this; on the former, the bailiff may permit th prisoner to go at large, provided he has him at the return the writ; but in the latter, if the bailiff voluntarily permit th prisoner to go at large, though only for a minute, he can afterwards retake him.f Trespass But an action will not lie against a judge of a court of recor will not for any matter done by him in the exercise of his judicial fu lie against a judge of tions; nor against the Lord Chancellor for anything done: a court of his judicial capacity. A judge in a county court is not liable record for trespass, if his bailiff take the goods of a wrong person und any thing a warrant issued by him in his judicial character; nor wi done by him in the trespass lie against the steward of a court baron, if his bailiff. discharge mistake, take the goods of B. under a precept commanding his of his du- to take the goods of A.; nor against a magistrate for anythi ties, nor done under a conviction, unless there be a want of jurisdie tion; nor for anything done by him in the discharge of! magistrate duty however unwarranted by the real facts of the case; unles *1436 he was made acquainted with every fact necessary to ensh him to form a judgment as to the course which he ought to p sue; nor is a magistrate liable in trespass for committing s against a a Morgan v. Hughes, 2 T. R. 225. "The general distinction is this: where the immediate act of imprisonment proceeds from the defendant, the action must be tre pass, and trespass only; but where the act of imprisonment by the person is in cors quence of information by another, there an action upon the case is the proper remedy, because the injury is sustained in consequence of the wrongful act of that other." Per Ashhurst, J., id. 231. A magistrate is not justified in detaining a known person an intimation that a charge is to be made against him, without an information being regularly laid before him. Rex v. Birnie, 1 M. & Rob. 160. 5 C. & P. 206. ( Eng. C. L. 281.) b Groome v. Forrester, 5 M. & S. 314. e Wall v. Namara, cited in 1 T. R. 535. d Id. 537. Atkinson v. Mattison, 3 T. R. 172. 'Per Ashhurst, J., id. 176. Per Lord Tenterden, in Garnett v. Ferrand, 6 B. & C. 625. (13 Eng. C. L. 284.) See the cases there cited. Dicas v. Lord Brougham, 1 M. & Rob. 309. Tinsley v. Nassau, M. & M. 52. 2 C. & P. 583. (12 Eng. C. L. 275.) Fawcett v. Fowlis, 7 B, & C. 394. (14 Eng. C. L. 59.) 1 M. & R. 102. Pike v. Carter, 3 Bing. 78. (11 Eng. C. L. 37.) 10 Moore, 376. Lowther . Radnor, (Earl,) 8 East, 113. erson on a charge of felony made upon oath, although the harge turns out to be unfounded. Where, therefore, the plainff was committed by the defendant on a charge under 7 & 8 eo. IV, c. 30, s. 19, for having maliciously cut down trees. djoining a dwelling-house, and the prosecutor did not appear gainst him; it was held, that the defendant was not liable in espass, though it appeared on the face of the depositions that e plaintiff was the occupier of the land on which the trees rew.a should not But a magistrate has no right to direct the imprisonment A magisf a party without examining into the charge. Where a con- trate able took the plaintiff into custody on a charge of disorderly direct a onduct on Sunday, and was taking him before a magistrate on party to be Ionday, when he met the magistrate in the street, who desired imprisonim to take the plaintiff back to the lock-up house, and bring ed without im up for examination on Tuesday; held, that the magistrate examina-, as liable to an action of trespass for false imprisonment. "It a magistrate's duty," said Patteson J., "on all occasions. ther to examine into the question, or if there be any reason hy he cannot examine into it, he is not to interfere at all, nd he should let the constable take the party somewhere se,"b ation. So, where two magistrates having, at a landlord's request, iven possession of a dwelling-house as deserted and unoccuied, pursuant to 11 Geo. II, c. 19, s. 16, and the judges of ssize of the county, on appeal. made an order for the restituon of the farm to the tenant with costs, the latter having rought an action of trespass for the eviction against the maistrates, the constables and the landlord; held, that the proeedings before the magistrates was an answer to the action n behalf of all the defendants; for the magistrates acted as idges of record, and were therefore protected, though they ad mistaken the law, and the constables and the landlord *1437 cted in aid of the justices only." ssue. 3.-The pleadings.] The general issue in this action is not Plea of uilty, which merely denies the act done; any matter in ex- justificause or justification of the imprisonment must be specially tion. leaded, except in those cases where the party is enabled by ome statute to give the matter in evidence under the general A private person who acts in aid of a constable, may ive that justification in evidence under the general issue.d But if he be the prime mover, and set the constable in motion y giving the plaintiff in charge to him, he is not within the tatute, and therefore will not be permitted to avail himself of natter in justification, unless it be specially pleaded, for the a d Mills v. Collett, 6 Bing. 85. (19 Eng. C. L. 11.) 3 M. & P. 242. Ashcroft v. Boarne, 3 B. & Ad. 684. (23 Eng. C. L. 160.) 21 Jac. I, c. 12, s. 2. |