ILLEGAL IM cation the most technically regular, from that punishment which it is your LEGAL AND province and your duty to inflict on so scandalous an abuse of public trust." PRISONMENT. An action will not lie at common law for false imprisonment (1), where In cases of the imprisonment was merely in consequence of taking a ship as prize, prize. although the ship has been acquitted; because the court of Admiralty possesses an exclusive jurisdiction, not of prize only, but of every matter dependent on it, and consequently, can give damages for any injury or detention which individuals experience under such circumstances. IV. By Sheriffs, and by their Officers. BY SHERIFFS, AND BY THEIR Sheriff must not make out the warrant until he have the writ in his By stat. 6 Geo. 1. c. 21. s. 53. the sheriff shall not make out the warrant OFFICERS. until he have the writ in his actual possession, under a penalty of 10%.; Stat. 6 Geo. 1. c. 21. s. 53. nor shall the bailiff arrest the defendant until he have received the warrant (2), otherwise he will be liable to an action for false imprisonment, and the court or a judge will discharge the defendant out of custody, or order the bail bond (if any) to be delivered up to be cancelled. (3) The sheriff is civilly liable for false imprisonment by his officer, or for the actual possesmisconduct of his officer in executing a writ, though the act done be contrary to the express terms of the writ, as if he take a person under a fieri facias (4); but trespass will not lie against a sheriff for the act of his bailiff, under a judgment obtained in the county court (5); because the sheriff is a constituent part of that court. An arrest on mesne process (6), which is not returned, is wrongful (7); and false imprisonment will lie against the sheriff. (8) So likewise trespass for false imprisonment may be maintained against the sheriff, for an arrest made by his bailiff, after the return day of the writ (9); and if an officer of an inferior court do 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 or his officer is not bound to execute mesne process, wherein the defendant is described by the wrong name (10); and a warrant is bad, unless the name be on it, or such a designatio persona, as is not likely to lead to a mistake. (11) sion. Arrest without a warrant. Sheriff civilly responsible for the conduct of his officer, though he act contrary to the of the writ. Arrest made after the return day of the writ. express terms Sheriff not bound to execute a writ on mesne process against a party improperly described. Person arrested If the defendant be arrested on mesne process by a wrong name, he may by a wrong (1) Le Caur v. Eden, Doug.594. (2) 7 Bac. Abr. Trespass (D.), 661. (4) Smart v. Hutton, 8 A. & E. 568. n. (7) 2 Rol. Abr. Trespass ( G., 563. (9) Parrot v. Mumford, 2 Esp. N. P. C. 585. (10) Morgans v. Bridges, 1 B. & A. 647. Keisar v. Tyrrel, 2 Bulst. 256. (11) Rex v. Hood, Arch. Cr. Pl. by Jervis, 357. As to the validity of the bail bond in such a case; - a defendant, whose tion. Cole v. name. LEGAL AND Writ must be executed upon the person named therein. Process issued in a wrong name, in consequence of the false statement of the arrested. PRIVILEGED PERSONS. maintain an action of false imprisonment against the sheriff or his officers, or any one interfering in the arrest (1); but not so, if the defendant be as commonly known by the name by which he is sued, as his real name, and it be averred (2), or if the name be idem sonans; and stat. 3 & 4 Will. 4. c. 42. s. 11., or the rule of H. T. 2 Will. 4. s. 32. makes no alteration of the law in this respect. (3) A. B. brought an action for false imprisonment against C. (4), 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. The plaintiff demurred; but judgment was given for the plaintiff, because C. the defendant ought at his peril to have taken notice of the person named in the writ. A commission of rebellion was issued against I. G., another person appeared before the commissioners, and affirmed himself to be I. G., whereupon they apprehended him by virtue of their commission; but such arrest was held illegal, the court observing (5), "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 (6) 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 the plaintiff to a sponging house, where he kept her all night, but the next morning having discovered his mistake, he released her. Lord Kenyon 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 only nominal damages. But if a person whose real name is W. be 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. (7) If a bailable writ were to issue against a member of the royal family, or against a peer, peeress, or member of the House of Commons, the sheriff by executing it, would render himself liable to be committed by the House of Lords or House of Commons respectively for a breach of privilege. If the sheriff were to arrest an ambassador or his servant, not only the sheriff and his officer, but also the plaintiff at whose suit the process issued, and his attorney, would be subjected to fine, imprisonment, and corporal punishment by stat. 7 Anne, c. 12. But in all other cases of permanent privilege the sheriff may execute the writ, without any regard to the (1) Shadgett v. Clipson, 8 East, 328. Cole v. Hindson, 6 T. R. 234. Finch v. Cocken, 3 Dowl. P. C. 678. 2 C. M. & R. 196. Gale, 130. (2) Ibid. 1 (3) Finch v. Cocken, 3 Dowl. P. C. 678. 2 C. M. & R. 196. antè, 2023. n. 11. The court or judge, in discharging the defendant out of custody, &c. for a misnomer, usually restrain him from bringing any action. (4) Coote v. Lighworth, Sir F. Moore, 457. (5) Thurbane and another, Hardr. 323. (6) Oxley v. Flower, B. R. Middlesex Sitt. Dec. 4. 1800, vide Morgans v. Bridges, 1 B. & A. 647. Brunskill v. Robertson, 9 A. & E. 840. (7) Price v. Harwood, 3 Camp. 108. Walker v. Willoughby, 6 Taunt. 530. privilege of the defendant (1), and no action for false imprisonment can be maintained against him for so doing. (2) Although certificated bankrupts, or persons discharged under insolvent acts, are privileged from arrest, yet the sheriff or his officer, is not liable to an action for false imprisonment for arresting them. (3) 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 (4), that this was neither an actual or constructive arrest; because 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. 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. (5) But an officer, who has arrested a prisoner on mesne process, and voluntary permitted him to escape, may retake him before the return of the writ, without being liable to such action. (6) LEGAL AND ILLEGAL IM- Certificated bankrupts and insolvent debtors. notice of the Prisoner in execution escaping by the voluntary permission of his gaoler. V. By Commissioners of Bankrupts, and of Courts of Request. By stat. 5 & 6 Will. 4. c. 29. s. 25. courts of review and subdivision courts are declared to have been courts of record from the passing of stat. 1 & 2 Will. 4. c. 56.; but no single judge or commissioner is authorised to impose a fine or commit for a contempt; but every contempt of single judge or commissioner is cognisable by the court of review. Previously to the foregoing statutes, trespass vi et armis would not lie against commissioners of bankrupts (7) for a commitment by them for not fully answering to their satisfaction lawful questions proposed by them to a party whom they had authority to examine, and upon a subject into which they had authority to inquire. But the commissioners had not an authority to commit (8) a person brought before them to be examined for giving an unsatisfactory answer to an immaterial question. Where commissioners made out their warrant of commitment without shewing any actual restraint in consequence of such warrant, the party being previously and still remaining in custody for another cause, could not support an action of imprisonment against them. (9) A witness, summoned by commissioners of bankrupts under stat. 6 Geo. 4. Stat. 6 Geo. 4. c. 16. s. 33., was required by them to read certain entries in a ledger, and c. 16. s. 33. on his refusal to do so, was committed by them for refusing to answer a question: It was holden (10), that the commitment was illegal, inasmuch as the request to read, was neither in form nor in substance a question. (1) Duncombe v. Church, 1 Salk. 1. Co. Litt. 131. Tarlton v. Fisher, Doug. 676. Crossley v. Shaw, 2 W. Black. 1085. (2) Tarlton v Fisher, Doug. 676., et vide Cameron v. Lightfoot, 2 W. Black. 1194. Sherwood v. Benson, 4 Taunt. 631. (3) Tarlton v. Fisher, Doug. 671. wood v. Benson, 4 Taunt. 630. Sher (4) Berry v. Adamson, 6 B. & C. 528. LEGAL AND PRISONMENT. Stat. 6 Geo. 4. c. 16. s. 23. Comissioners of court of requests. BY CONSTA BLES. Stat. 24 Geo. 2. c. 44. s. 6. Action not to be brought against any constable or other person, acting in obe dience to a justice's war rant. What actions In order to justify commissioners in issuing their warrant to apprehend a party summoned to attend before them as a witness under stat. 6 Geo. 4. c. 16. s. 23., there should be a reasonable interval between the service of the summons and the time appointed for his attendance. Commissioners of a court of requests, having power to commit for a contempt, are not within act 45 Geo. 3. c. lxvii. s. 6. (1) VI. By Constables. By stat. 24 Geo. 2. c. 44. s. 6. no action shall be brought against any constable, headborough, or other officer, or against any person acting by his order and in his aid, for any thing done in obedience to any warrant under the hand or seal of any justice of the peace, until demand hath been made or left at the usual place of his abode by the party intending to bring such action, or by his attorney or agent, in writing, signed by the party demanding the same, of the perusal and copy of such warrant, and the same hath been refused or neglected for the space of six days after such demand; and in case, after such demand and compliance therewith, any action be brought against such constable, &c. for any such cause as aforesaid, without making the justice of the peace who signed or sealed the said warrant defendant, that on producing and proving such warrant, at the trial of such action, the jury shall give their verdict for the defendant, notwithstanding any defect of jurisdiction in such justice; and if such action be brought jointly against such justice and such constable, &c., then, on proof of such warrant, the jury shall find for such constable, &c. notwithstanding such defect of jurisdiction; and if the verdict be given against the justice of the peace, the plaintiff shall recover his costs against him, to be taxed in such manner as to include the costs which the plaintiff is liable to pay to the defendant for whom such verdict is found as aforesaid. Neither assumpsit nor replevin (2) are within stat. 24 Geo. 2. c. 44. s. 6.; are within stat. in fact, no actions are within it except those in tort. (3) 24 Geo. 2. c. 44. s. 6. DEMAND OF WARRANT. Construction of stat. 24 Geo. 2. c. 44. s. 6. by Mr. If the constable refuse or neglect for the space of six days to comply with the demand, the constable may be sued as before stat. 24 Geo. 2. c. 44. s. 6. But if he comply with the demand at any time before action brought, though more than six days after the demand, he will be protected by the provisions of that statute. (4) But a perusal and copy of the warrant need not be demanded, where the officer does not act within his jurisdiction in obedience to the warrant. (5) In Parton v. Williams (6) Mr. Justice Bayley said, "The sixth section Justice Bayley [of stat. 24 Geo. 2. c. 44.] is shortly this—if the act done, be in obedience to the warrant, it is identified with that of the justice, and he alone shall be responsible for it. If a copy of the warrant is given, the justice may be made either a sole defendant or a co-defendant; but the party can only recover in Parton v. Williams. (1) Mackey v. Goodden, 1 Dowl. P. C. 463. (2) Fletcher v. Wilkins, 6 East, 283. (4) Jones v. Vaughan, 5 East, 445. (5) Gladwell v. Blake, 1 C. M. & R. 645. (6) 3 B. & A. 335. recog. in Smith v. Wiltshire, 2 B. & B. 619. Smith v. Shaw, 10 B. & C. 284. ILLEGAL IM- Officer protected, if he act dience to a magistrate's in strict obe warrant. against the justice. That section must of necessity, therefore, be confined LEGAL AND to that description of cases, in which the constable acts strictly within the limits of the authority communicated to him by the magistrate; in which case, if the action is maintainable at all, it is maintainable against the justice. If an officer, therefore, confines himself within the limits of the warrant, he has an effectual protection under the sixth section. There could then be no reason for providing, that an action in which the defendant is not liable at all, should be brought within a limited time." (1) The foregoing principles were recognised in West v. Smallwood (2), in Judgment of which Lord Abinger said, "Where a magistrate has a general jurisdiction Lord Abinger over the subject-matter, and a party comes before him and prefers a complaint, upon which the magistrate makes a mistake in thinking it a case within his authority, and grants a warrant which is not justifiable in point of law, the party complaining is not liable as a trespasser, but the only remedy against him is by an action upon the case, if he has acted maliciously. The magistrate acting without any jurisdiction at all, is liable as a trespasser in many cases; but this liability does not extend to the constable, who acts under a warrant; and the statute 24 Geo. 2. c. 44. was passed with this very object of protecting such officers." If a constable act upon any warrant, except that issued by a justice of the peace (3); or if he be authorised by a warrant to seize certain articles suspected to have been stolen, and take away others also not specified, nor likely to furnish evidence as to the identity of others (4); or apprehends a person not described in the warrant (5); or executes the warrant out of the jurisdiction of the magistrate (6); or executes a warrant of distress by entering a house and breaking the windows, &c. (7) - he will not be protected under stat. 24 Geo. 2. c. 24. s. 6. Where a warrant is directed to a constable in his official character with in West v. Smallwood. Constable not pursuing a magistrate's warrant. Execution of warrant out of out naming him; as, "To the constable of the parish of W.," the warrant constable's preought to be executed (8) within the limits of the district for which he is cincts. constable. If a warrant be directed to a constable by name, commanding him to execute it, though he is not compellable to go out of his own precinct, yet he may if he will, and shall be justified by the warrant for so doing; but if the warrant be directed to all constables, &c. generally, it must be taken respectively, and no constable can execute the same out of his precinct. Where a sheriff's officer arrests a person under two writs, and detains him after he has a right to a discharge under one, yet trespass does not lie, if in fact his imprisonment be justifiable under the other. (9) A constable or peace officer having reasonable ground to suspect, that felony has been committed, is authorised (10) to detain the party suspected, until inquiry can be made by the proper authorities, although it appear afterwards, that a felony has not been committed. (1) Vide etiam Price v. Messenger, 2 B. & P. 158., vide Shergold v. Holloway, Str. 1002. (2) 3 M. & W. 420. (3) Gladwell v. Blake, 1 C. M. & R. 636. (7) Bell v. Oakley, 2 M. & S. 259. (10) Samuel v. Payne, Doug. 359. Coupey Arrest under two writs, one legal the other illegal. ARREST WITHOUT A WAR RANT. |