e.g. a father naturally has a right to reasonably chastise E.g. a father with regard his children, and so, also, has a master to reasonably to his child. chastise his apprentices, and a schoolmaster his scholars, but the chastisement must not be excessive (2). A master or captain of a ship has also a right by virtue of his position to imprison or reasonably chastise any of the sailors who behave in a mutinous or disorderly manner, or refuse or neglect to obey his lawful and proper orders, but any chastisement must be reasonable (r); and a beadle, or other person employed in that capacity in a place of worship, is justified in laying hands on and forcibly removing from that place any person who by his conduct is disturbing the congregation (s). an essential and battery. It necessarily appears that in actions for assault and Malice is not battery it is not at all essential that malice should in assault exist. Malice may, of course, be shewn, and may operate to inflame the injury done, and increase the amount of the damages; but a wanton, or thoughtless, or negligent act, without the slightest malicious intent, may equally constitute an assault and battery. battery may Assault and battery may also be committed indirectly An assault and as well as directly; thus, where the defendant threw be committed indirectly. a lighted squib which fell on a stall in the street, and the keeper of the stall for his own protection threw it off, and it then exploded and injured the plaintiff, it was held that the defendant, the original thrower, was liable, for, that a person is liable for the natural and probable consequences of his own act (t). So if a person in the street whips another's horse, and thus causes him to run over or otherwise injure any one, (9) See hereon Winterburn v. Brooks, 2 C. & K. 16. (r) Broughton v. Jackson, 21 L. J. (Q.B.) 265; Noden v. Johnson, 20 L. J. (Q.B.) 95. (s) Burton v. Henson, 10 M. & W. 105; Williams v. Glenister, 2 B. & C. 699. (t) Scott v. Sheppard, 1 S. L. C. 466; 2 Blackstone, 892. Remedies in respect of assault and battery. A wife cannot sue her hus of a tort com mitted to her during cover ture, such person is liable for the assault and battery thus committed (u). A person may proceed either civilly or criminally in respect of an assault, and the period of limitation for bringing any action in respect of such a tort is four years (x). It has already been noticed, however, in considering the subject of torts generally, that sentence will not be passed in a prosecution for an assault if an action for the same assault is also pending; that if a conviction on summary proceedings takes place, that bars further civil proceedings; and that if a magistrate dismisses a charge of assault his certificate of dismissal will operate to bar any further proceedings, civil or criminal, in respect of it (y). If a man assaults his wife, she has no right of band in respect action against him (2), her remedy being to prosecute him, or to apply for him to be bound over to keep the peace, or the assault and battery may constitute cruelty sufficient to obtain a separation order under the Matrimonial Causes Act, 1878 (a), or to found even though proceedings for judicial separation. It has been decided that no action is maintainable by a divorced wife against her former husband for an assault and battery committed during the coverture (b). What is stated in this paragraph applies not only to assault and battery but to any tort under such circumstances (c). she has since obtained a divorce. (u) Addison on Torts, 41, 42. (x) 21 Jac. 1, c. 16, 8. 3. (y) Ante, pp. 278, 279. (z) The Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), though giving all rights in respect of property, specially provides (sect. 12) that beyond that no husband or wife shall be entitled to sue the other in respect of a tort. (a) 41 Vict. c. 19. (b) Phillips v. Barnett, L. R. 1 Q. B. D. 436; 45 L. J. (Q. B.) 277. (c) But where a husband was a lunatic, though not so found by inquisition, and his wife during his lifetime wrongfully took possession of and sold certain of his chattels and applied the proceeds to her use, between an constructive False imprisonment may be defined as some un- II. False lawful detention of the person, either actually or con- definition of. imprisonment, structively (d). The difference between an actual and constructive detention of the person is this, that while Distinction an actual detention is a detention by forcible means, actual and a the constructive is not, but may consist in a mere detention. shew of authority or force, e.g. if an officer informs a man that he has a legal process against him and that he must accompany him, and, accordingly, although no hand is laid on him, he goes with the officer, this amounts to an imprisonment (e). It being, therefore, understood what will constitute Imprisonment often justifia false imprisonment, we will proceed to consider able. particular cases in which imprisonment is allowed by the law, so that it will not be a false but a justifiable and proper imprisonment. person because Firstly, it may be noticed that there are various Detention by a persons who are, from their position, naturally justified of his position in detaining certain persons to whom they stand in a as a father. peculiar relation, e.g. a father his child, a husband his wife, or a commanding officer his inferior. a criminal Secondly, for criminal offences, persons are liable Detention for to be arrested and imprisoned, in some cases only by offence. a warrant from competent authority for that purpose, and in some cases by any one without any warrant at all. a warrant, and A warrant is a precept under hand and seal to an Definition of officer to arrest an offender to be dealt with according mode of acting to due course of law (ƒ). It is obtained on applica- thereunder. it was held that an action might be maintained by the husband's representatives against the wife's representatives to recover the amount from her estate in her executor's hands. In re Williams, Williams v. Stretton, 50 L. J. Ch. 495; 44 L. T. 600. (d) See Broom's Coms. 726, 727. (e) Grainger v. Hill, 4 B. & C. 212; Wood v. Lane, 6 C. & P. 774. (f) Brown's Law Dict. 567. As to the liability of justices. A month's tion to a magistrate or justice, and is then delivered to a constable who makes the arrest, having it with him at the time to produce if required, as if he has not so got it with him he stands in the same position as if there were no warrant (g). If a justice does an act within his jurisdiction, e.g. granting a warrant to arrest an offender in respect of an act for which, had he been guilty, the justice would have had full power to grant it, he is not liable to any action in respect of it, unless the act was done maliciously, and without reasonable and probable cause (h); but if he does an act without jurisdiction, e.g. sending an offender to prison, where he has, even although the offender were guilty, no power to imprison, he is liable quite irrespective of malice; but no action can be brought against him in respect of it until after the conviction has been quashed (i). No action can, however, be brought against a justice for anything done by him in the execution of his office, until one calendar month's notice in writing is given to him, with particulars of the intended action (k), and he has then, before the action is commenced, a right to tender to the person injured a sum of money by way of amends, and, after action, to pay such a sum as he thinks fit into court, either in addition to the previous tender or instead thereof, if he has not made a previous tender; and if such sum is not accepted by the plaintiff, the fact of the tender and payment into court may be given in evidence at the trial, and the jury, if of opinion that the plaintiff is not entitled to damages beyond the sum so tendered or paid into court, shall give a verdict for the defendant, and the defendant's costs shall be paid out of the amount, and the balance, if any, paid to the plaintiff (1). after six Any right of action against a justice for anything Statute barred done by him in the execution of his office, is statute months. barred after six months from the date of the act complained of having been committed. vision for their A constable doing an act in pursuance of a legal war- As to the liability of rant is not liable to an action for false imprisonment, constables. but if the warrant were granted without jurisdiction, then the law was, formerly, that he, in the same way as the justice granting it, and, indeed, all persons concerned in its execution, was liable to an action for false imprisonment. A constable is, however, in such Special proa case now protected, it being provided that no action protection shall be brought against him before making a six days' when acting demand for a copy of the warrant under which he acted, rant. and that if that is given, then, although the person aggrieved may bring his action against the constable and the justice granting the warrant, the production of such warrant shall entitle the constable to a verdict (m). A constable, when liable to an action in respect of He is usually anything done in the execution of his office, is entitled notice before to a month's notice before action brought (n). entitled to action. warrant is not A person who lays a complaint before justices, and The person thereupon obtains a warrant, is not liable to an action obtaining a for false imprisonment, though it turns out that the liable for false imprisonment, complaint was erroneous, or there was no jurisdiction but may be for the granting of the warrant (o). He may, however, prosecution. sometimes be liable for malicious prosecution (p). for malicious a constable A constable may not generally arrest another without Cases in which a warrant for that purpose, but there are many special may arrest cases in which he may. Particularly he may do so when without war. he sees a felony committed, or has reasonable ground for rant. (m) 24 Geo. 2, c. 44, s. 6. (n) See Addison on Torts, 715, 716. 5 & 6 Vict. c. 97, s. 4. (p) As to which see post, p. 342. |