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and the justice discharged the case. Held, that this showed an arrest of the plaintiff: Searls v. Viets, 2 Thomp. & C. 224. The schooling of a boy at a boarding-school not having been paid, the master refused to allow him to return to his parents until it was paid. The boy did not know this, but supposed his detention at the school was according to the rules of the school. Held, no imprisonment: Herring v. Boyle, 1 Cromp. M. & R. 377. An officer went on board a ship to arrest a man. The ship cast off and sailed soon after, and took the officer off to sea. He had opportunity to leave before she sailed, but by his neglect did not avail himself of it. Held, no imprisonment: Spoor v. Spooner, 12 Met. 281. A procured B to assume the office of constable and arrest a boy on a charge of breaking a glass in his show-case, and the boy was carried before C, who falsely assumed to act as justice of the peace, when the form of a trial was gone through, the boy being refused the privilege of seeing an attorney, and judgment was rendered against him for three dollars, and the parties then threatened him with imprisonment in the county jail unless he could get two good men to become surety for him, which he finally procured, and was then released, after having been detained about two hours. Held, that all the parties were liable to an action for false imprisonment: Price v. Bailey, 66 Ill. 49. The gate-keepers of an elevated railroad had been ordered by the company not to allow passengers to leave the stations unless they surrendered their tickets or paid fare. A passenger on leaving the station refused to pay his fare because he had lost his ticket. The passenger was detained by the gate-keeper, turned over to a police-officer, locked up over night in the station-house, complained of, and discharged in the morning by the magistrate. Held, that an action of false imprisonment lay against the railroad company: Lynch v. Metropolitan etc. R. R. Co., 90 N. Y. 77; 43 Am. Rep. 141. A, fined for violation of a city ordinance, was compelled to work out the fine by laboring on the streets. Held, that he could maintain an action for false imprisonment: Torbert v. Lynch, 67 Ind. 474. A locked B in a room, and by threats, with weapons in his hand, forced B to acknowledge breach of a promise of marriage, and to agree to pay damages therefor. Held, a false imprisonment: Hildebrand v. McCrum, 101 Ind. 61. A went to B's house, and found B in his corncrib. A produced a revolver and demanded that B answer certain questions. Upon B attempting to leave the crib, A fired at and wounded him, compelling him to remain in the crib for an hour, when B procured a pistol, and A went away. Held, that an action for false imprisonment would lie: McNay v. Stratton, 9 Ill. App. 215. A sued B and caused his arrest. B tendered bail, which A knew to be sufficient, but which he

ordered the officer to refuse. Held, that A was liable to B in trespass on the case, and this whether he acted maliciously or not: Gibbs v. Randlett, 58 N. H. 407. A was arrested and threatened with imprisonment, upon a writ in a civil action, void for irregularity and the want of a proper affidavit, and was compelled to promise, and procure friends to vouch for him, that he would not abscond, and was subjected to expense in procuring an order setting aside the writ, six days after its issue. Held, that he could recover for this interference with his person and restraint of his liberty, although he was not actually imprisoned, and did not give the bond required by the writ, and there was no proof of express malice: Bonesteel v. Bonesteel, 28 Wis. 245; 30 Wis. 511.

§ 1065. Restraint without Process-When Permitted. -In certain relations, a degree of restraint may be legally exercised by one person over another; as, for example, a parent over his child, a guardian over his ward, a master over his apprentice, a teacher over his pupil, and the master of a ship over those under his charge, both crew and passengers. Another case is that of bail and principal. The authority of the bail in respect to his principal, for whose conduct he has become responsible, is to arrest and surrender him in exoneration of his liability. It is a limited authority, and must be exercised without needless violence or annoyance.2 But the bail may break open the doors of the principal's house, if he refuses to surrender after notice.3

§ 1066. Imprisonment of Insane Persons.-An insane person may be arrested and detained without legal process when it is necessary to restrain him; but where the person is not dangerous, the necessity does not exist, and the right therefore does not

1 See Division I., Persons.

2 Cooley on Torts, 172; Read v. Case, 4 Conn. 166; 10 Am. Dec. 111; Pease r. Burt, 3 Day, 485.

3 Read v. Case, 4 Conn. 166; 10 Am. Dec. 110.

exist. If there is probable

Keleher v. Putnam, 60 N. H. 30; 49 Am. Rep. 304, the court saying: "The right of personal liberty is subject to some exceptions necessary to the common welfare of society. At common law, a private citizen, without

Keleher v. Putnam, 60 N. H. 30; warrant, may lawfully seize and de49 Am. Rep. 304.

tain another in certain cases. It is

cause to believe that a person is insane, and is about to commit any mischief, which, if committed by a sane person, would constitute a criminal offense, an officer may detain the offender until it may reasonably be presumed that he has changed his purpose.'

§ 1067. Restraint with Process-In General.-An arrest made upon a sufficient warrant issued by a judge or court having jurisdiction is a protection to all parties acting under it. To an action for false imprisonment it is a good defense that the process was valid and issued by a court of competent jurisdiction. One cannot recover for false imprisonment on proof of a case of malicious prosecution. An imprisonment, though caused by a malicious prosecution, is not "false," unless extrajudicial or without legal process. Congress has no right to imprison a person for refusing to answer a question a committee had no right to inquire into, and the sergeant-at

justifiable to hold a man to restrain him from mischief. It is lawful to interfere in an affray which endangers the lives of the combatants. Other instances are enumerated in Colby v. Jackson, 12 N. H. 526. Under the right of self-defense, it is lawful to seize and restrain any person incapable of controlling his own actions, whose being at large endangers the safety of others; but this is justifiable only when the urgency of the case demands immediate intervention. The right to exercise this summary remedy has its foundation in a reasonable necessity, and ceases with the necessity. A dangerous maniac may be restrained temporarily until he can be safely released, or can be arrested upon legal process, or committed to the asylum under legal authority. But not every insane person is dangerous. Nothing can be more harmless than some of the milder forms of insanity. Nor is it any justification that the defendants were actuated by a desire to promote the plaintiff's welfare. The right of personal liberty is deemed

too sacred to be left to the determination of an irresponsible individual, however conscientious. The law gives these unfortunate persons the safeguards of legal proceedings and the care of responsible guardians: Davis v. Merrill, 47 N. H. 208; 22 Monthly L. Rep. 385; 6 South. L. Rev., N. S., 568; 3 Am. Law Rev. 193; Ray on Insanity, secs. 614-619. The legislature has established appropriate forms of proceeding for ascertaining their mental condition, imposing upon them, under the supervision of public functionaries, the restraint necessary to protect them from the imposition of others, and subjecting them to such treatment as may restore their reason.

1 Pætz v. Dain, 1 Wils. (Ind.) 150. 2 Johnson v. Maxon, 23 Mich. 129; Waldheim v. Sichel, 1 Hilt. 45; Krebs v. Thomas, 12 Ill. App. 266; McCarthy v. De Armit, 99 Pa. St. 63; Coupal v. Ward, 106 Mass. 289.

3 Herzog v. Graham, 9 Lea, 152. • Murphy v. Martin, 58 Wis. 276.

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arms is liable for the trespass. A railroad company has no right to detain a person who has lost his ticket and will not pay fare.2 A United States commissioner cannot fine and imprison a party. A commissioner in chancery

cannot commit a person for refusing to testify. The arrest of a person privileged from arrest is not a trespass,5 and does not give an action for false imprisonment, even though the officer knew of the exemption." It is a personal privilege which may be waived by the party arrested by not asserting it at the first opportunity.

§ 1068. In Civil Cases. — Imprisonment for debt is now practically obsolete in the United States, but the arrest of a party in a civil action is still permitted in civil cases in most of the states. The grounds upon which the arrest is allowed are generally the same, and are limited to cases where the debt was contracted or its payment is sought to be evaded by the fraud of the debtor. As, for example, where money held in a fiduciary or official capacity is converted; where a credit has been obtained and a debt made by fraud; where the debtor is about to remove from the state himself, or his property, or is concealing his property to escape payment of the debt."

§ 1069. Arresting Wrong Person. Where an officer has a warrant for one man and arrests another, he cannot justify under the writ for the first, even although the

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v. Kinsman, 5 Vt. 588; Cameron v. Lightfoot, 2 W. Black. 1190; Brown v. Getchell, 11 Mass. 11; Cable v. Cooper, 15 Johns. 152; Deo v. Van Valkenburgh, 5 Hill, 242; Blight v. Fisher, Pet. C. C. 41; Waterman v. Mersitt, 7 R. I. 345.

Smith v. Jones, 76 Me. 138; 49 Am. Rep. 598.

7 Maguay v. Burt, 5 Q. B. 381. 8 Dow v. Smith, 7 Vt. 465; 29 Am. Dec. 202.

See Cal. Civ. Code, sec. 479.

10 Mead v. Haws, 7 Cow. 332; Miller v. Foley, 28 Barb. 630; Scott v. Ely,

first was the one against whom the warrant was intended to be issued.' But the arrest is valid if the party led the officer by his statements to believe himself the one described in the writ. An officer arresting a supposed felon without a warrant, but arresting the wrong man, is not liable if he acted in good faith and upon reasonable grounds of suspicion.3

ILLUSTRATIONS. A was arrested through the agency of a detective agency employed by a railroad company without a warrant and under a mistake, he not being the person sought. Held, that A had a right of action against the company: Harris v. R. R. Co., 35 Fed. Rep. 116. A sheriff was requested by the authorities of another county to arrest a certain person there indicted for murder. The sheriff, without a warrant, went into another county than his own, and arrested the wrong person. Held, that an action for false imprisonment would lie against the sheriff: Mitchell v. Malone, 77 Ga. 301. Charles F. Moore was arrested on a capias from another county for the arrest of Charley Moore, for theft. Plaintiff testified that he protested his innocence, and warned the sheriff that he should seek redress. When taken to the other county, he was not identified as the person desired. Held, to sustain a judgment for false imprisonment: Ryburn v. Moore, Tex., 1889.

§ 1070.

Restraint with Process -Void Process.-Process void because not emanating from the officer or court from which it purports to come is of no protection. Nor is process which is void because the court has no jurisdiction to issue it; as where a justice issues a warrant of

4 Wend. 555; Griswold v. Sedgwick, 1 Wend. 126; McMahan v. Green, 34 Vt. 70; 80 Am. Dec. 665; Shadgett v. Clipson, 8 East, 328; Dunston v. Paterson, 2 Com. B., N. S, 495; Hoye v. Bush, 1 Man. & G. 784; Hays v. Creary, 60 Tex. 445; Formwalt v. Hylton, 66 Tex. 288.

Hoye v. Bush, 1 Man. & G. 784. 2 Dunston v. Paterson, 2 Com. B., N. S., 495.

3 Eanes v. State, 6 Humph. 53; 44 Am. Dec. 289; Formwalt v. Hylton, 66 Tex. 288.

Cooley on Torts, 173; Pierce v. Hubbard, 10 Johns. 405; Rafferty v.

People, 69 Ill. 111; 72 Ill. 37; 18 Am. Rep. 601; Haskins v. Young, 2 Dev. & B. 527; 31 Am. Dec. 426; Painter v. Ives, 4 Neb. 122; Hallock v. Dominy, 7 Hun, 52. A warrant void on its face is no defense to one on whose complaint the warrant was issued: Gelzenleuchter v. Niemeyer, 64 Wis. 316; 54 Am. Rep. 616. One who is arrested without reason, and kept in defiance of offers to give bail and to sue out a writ of habeas corpus, may maintain against all concerned an action for false imprisonment: Manning v. Mitchell, 73 Ga. 660.

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