Action by Administrator for Breach of Contract relating to Land (a).

1. The plaintiff, as the administrator of X. Y., deceased, has suffered damage from the defendant's negligence in his conduct for X. Y. as his solicitor of business undertaken by the defendant on X. Y.'s behalf.

2. The negligence was in not investigating the title of oneV. to the Colson Estate, in the county of York, upon a sale by V. to X. Y. for £5000, whereby the estate was conveyed to X. Y. with a bad title.

3. X. Y. was evicted by the true owner in his lifetime.

Particulars of damage :

£5000 paid to V.

The plaintiff claims £5000.

Action by Executor against Testator's Lessee for grubbing up Trees (b).

1. The plaintiff, as executor of A. B., deceased, has suffered damage by the defendant's breach of a covenant contained in a lease for seven years of the Folly Farm, by A. B., to the defendant, made under seal by indenture dated the 7th of August, 1880.

2. By the covenant the defendant covenanted not to grub up, fell or crop any timber trees on the Folly Farm which were excepted out of the said lease.

3. In the lifetime of A. B. the defendant felled four timber trees on the Folly Farm.

The plaintiff claims £30 damages.

Action against an Executor for Balance due on the Sale of the Goodwill of a Business.

1. The defendant is the executor of A. B., deceased.

2. On June 1, 1882, the plaintiff sold the goodwill and

(a) See Knight v. Quailes, 2 Brod, & B. 102; 4 Moore, 532; Williams on Executors, 8th ed. p. 811.

(b) See Raymond v. Fitch, 2 C. M. & R. 588; 5 Tyrwh. 958.

stock-in-trade of his business of a haberdasher to A. B. for
£2000, and A. B. received and took possession of the same.
3. A. B. in his lifetime paid the plaintiff £1500 on account
of the said sum of £2000.

1. The purchase-money was agreed by the plaintiff and the said A. B. at £1800 and not at £2000.

2. A. B. in his lifetime paid the said sum of £1800.

3. The defendant does not admit assets.

4. The estate of the said A. B. which came to the defendant's hands has been already applied by the defendant in a due course of administration in satisfying other debts due by the said A. B., and of superior degree to the plaintiff's.

Exoneration.

(See Release-Recission.)

False Imprisonment (a).

1. Claim for False Imprisonment against a Constable. On the 3rd of July, 1880, the defendant, maliciously and without reasonable or probable cause, arrested the plaintiff and

(a) A total restraint of the liberty of the person for however short a time "even by forcibly detaining the party in the streets against his will " will amount in law to an imprisonment (Bird v. Jones, 7 Q. B. 742, 752); and if such imprisonment is unjustifiable it will amount to a false imprisonment and be actionable. An arrest or imprisonment, however, is not confined to a corporal seizure. "If a person send for a constable and give another in charge for felony, and the constable tell the party, charged that he must go with him, on which the other, in order to prevent the necessity of actual force being used, expresses his readiness to go and does actually go, this is an imprisonment." (Per Abbott, C.J., in Pocock v. Morse, Ry. & Mo. 321.) But though there need not be an actual seizure of the person to constitute an imprisonment, the restraint on his

What con

stitutes a false imprisonment.

A partial restraint

will not constitute an imprisonment.

Classes of defences to action for false imprison

ment.

I. ARREST
IN EXECU

TION OF A WARRANT. Responsibility of sheriffs, constables, &c., making an arrest.

Of justices issuing a warrant of arrest.

Liability of

persons setting the justice in motion.

had him detained in the M. lock-up for ten hours, when he was discharged by an order of a magistrate.

The plaintiff claims £50 damages.

Defence.

1. The defendant is a police constable of the M. borough police force.

2. On the night of the said 3rd of July the defendant while

liberty must be total. A partial restraint, as by preventing a person advancing along a particular pathway, while allowing him to retire, is not enough. (Bird v. Jones, suprà.)

It may be taken that, prima facie, any imprisonment of another is unlawful and actionable, and it lies upon the defendant first to plead and then to prove facts justifying the imprisonment. This introduces the subject of defences to this kind of action. These defences may be briefly adverted to under two heads: First, where the defendant justifies on the ground that he was executing legal process; and secondly, where the defendant does not plead that he was actually executing a warrant, but sets up that he had reasonable and probable cause for believing that the plaintiff had committed an offence for which he was by law justified in arresting him.

Coming to the first of these heads of defence, a distinction must be drawn between the subordinate ministers of the law, as constables and bailiffs, and those who set them in motion. The law may be stated in a few words to be that, where sheriffs, bailiffs, or constables act within the terms of the warrant issued to them, and arrest the right persons, and use no more violence than is absolutely necessary, they are protected, although the warrant is in some respects irregular, and may even have been issued without jurisdiction. (See the 13 & 14 Vict. c. 61, s. 19, the 19 & 20 Vict. c. 108, s. 60, as to bailiffs of county courts, and the 24 Edw. 2, c. 44, s. 6, as to constables.)

With respect to justices issuing the warrant, the law is otherwise. If a justice issues a warrant, having no jurisdiction in the matter, and the plaintiff is arrested on such warrant, the constable executing the same is free from responsibility, but the justice is liable in an action; but if the justice have jurisdiction, he can only be made liable in an action by the plaintiff alleging and proving that he acted maliciously and without reasonable and probable cause. It is important, however, to bear in mind that where a justice is sued for anything done by him in his office, the plaintiff may be called on to show, as conditions precedent to his right of suing (a) that he has given the justice one month's notice of action; and (b) that any conviction or order made against him upon the warrant has been quashed; and it is also important to remember that the justice when sued can tender a sum of money as amends, and raise all the defences which he means to rely on by the general plea of "Not guilty by statute." (See the 11 & 12 Vict. c. 44, ss. 10, 11, and Addison on Torts, c. 15, sec. 3.) Where the justice or judicial officer has not acted altogether mero motu, but has been in the first instance set in motion by another, it will depend upon a number of circumstances whether such person is liable as well as the justice. No doubt if he acted maliciously and without reasonable and probable cause, he would be liable in damages for a malicious arrest, and perhaps for a malicious prosecution; but if a man merely lays a complaint before a justice in a matter over which the justice has a general jurisdiction, and the justice grants a warrant upon

in the course of his duty found the plaintiff loitering in a highway within the borough of M.

3. The defendant had good cause to suspect and did suspect that the plaintiff was about to commit one of the felonies

which the person charged is arrested, the party laying the complaint is not responsible for a false imprisonment, although the particular case is one in which the justice had no authority to act. (Carratt v. Marley, 1 Q. B. 18.)

Another case of a person justifying an imprisonment in the due execution of process of law, is a gaoler defending an action brought against him by a prisoner. In Graves v. Keene, L. R. 4 Ex. 73, a person who had been committed into custody for failing to comply with an order directing the payment of money under a warrant for contempt, at the end of a year demanded his release in writing, and when the governor of the gaol in which he was detained refused to release him, he brought an action for false imprisonment. It was held that the defendant was protected by the warrant of committal. And where a prisoner was received into custody on the 31st of October under a sentence of "one calendar month's" imprisonment, and a further term of "fourteen days," to commence at the expiration of the imprisonment previously adjudged, it was held that he was not entitled to his release until midnight of the 14th of December. (Migotti v. Colville, 48 L. J. M. C. 48; affirmed 48 L. J. C. P. 695; L. R. 4 C. P. D. 233.)

So far attention has been directed to the class of cases where an II. ARREST imprisonment is justified on the ground that the defendant was acting in WITHOUT A the execution of a warrant, but in certain cases a man is justified in WARRANT. arresting another although he is not the holder of a warrant for his arrest. The chief of these cases are: 1. Where a constable has reason to believe that a felony has been committed, and that the plaintiff has comImitted it, he may arrest him without warrant. 2. Where a felony has actually been committed, and there is reasonable and probable cause for believing that the plaintiff has committed it, a private individual may arrest another without warrant. 3. Either a constable or a private individual may while an affray is going on, and to prevent the continuance of a breach of the peace, make an arrest. 4. By the Malicious Injuries to Property Act (24 & 25 Vict. c. 97, s. 61) it is provided that any person found committing an offence under that Act may be arrested without warrant (a) by a constable; or (b) by the owner of the property injured, his servant, or any person authorised by him, as the occupier. 5. Any person found committing an indictable offence, whether a felony or a misdemeanor, in the night-time, i.e., between 9 p.m. and 6 a.m., may be arrested without a warrant. 6. Vagrants may be arrested without warrant. Cases 7. So any person guilty of riotous or indecent behaviour in any church when this or chapel. 8. By the 2 & 3 Vict. c. 47, s. 54, special powers are given is justifito the metropolitan police to arrest persons committing numerous offences able. of a disorderly kind, enumerated in the Act within the Metropolitan limits. 9. Special powers of arrest are also given by the Merchant Shipping Acts to the masters of passenger ships. (See the 25 & 26 Vict. c. 63, s. 37.) 10. A bail whenever he pleases may render his principal into custody. 11. By the Larceny Act, 24 & 25 Vict. c. 96, s. 103, and by the Act relating to the coin, 24 & 25 Vict. c. 99, s. 31, any person may arrest a person committing an offence against either of these Acts. 12. It is lawful to restrain the liberty of a dangerous lunatic without any warrant or authority, but this can only be done for a short time. The statutes 8 & 9 Vict. c. 100; 16 & 17 Vict. c. 96, establish a mode of proceeding with respect to the confinement of lunatics, and any devia

mentioned in the 24 & 25 Vict. c. 100, and he accordingly took him into custody with a view to his being brought before a Justice of the Peace and dealt with according to law.

2. Another Claim for False Imprisonment against a Constable.

On the 3rd of May, 1881, the defendant, maliciously and without any reasonable or probable cause, arrested the plaintiff and falsely imprisoned him for a long time, to wit, halfan-hour.

The plaintiff claims £50 damages.

Defence.

By public

statute

the 24 & 25

s. 113.

The defendant pleads not guilty by statute.

Vict., c. 96, 3. Claim against a Governor of a Gaol for False Imprisonment. On the 30th of April, 1880, the defendant, maliciously and without reasonable and probable cause, falsely imprisoned the

fence of constables acting bonâ fide.

tion from it will render the detention of a lunatic a false imprisonment. 13. Many Acts of Parliament under which railway companies are incorporated, authorise an officer of the company to arrest any person whose name and residence shall be unknown, and who shall commit any offence against the Act, and convey him before a justice without any other warrant or authority than that given by the Act. Except in the cases enumerated, and perhaps one or two other, it it not lawful to arrest or imprison without a warrant. Thus no one may arrest another for a misdemeanor, as perjury or conspiracy or false pretences, without a warrant. (Matthews v. Biddulph, 3 M. & G. 390.)

As a rule, where a police officer, acting bond fide in the discharge of Special de- his duty, arrests the wrong person, or one who has in fact committed no offence against the law, no action can be brought against the officer unless a month's notice in writing has been given him of such action. Any proceeding must be commenced within six months of the accruing of the cause of action; and the defendant is entitled to plead “not guilty" by statute. It is further generally provided that no plaintiff shall recover in such an action if a sufficient tender of amends has been made, or if a sufficient sum has been paid into Court, and even if the plaintiff gets a verdict he shall not have any costs, "unless the judge before whom the trial shall be shall certify his approbation of the action.” (See the 24 & 25 Vict. c. 96, s. 113; also c. 97, s. 71; also c. 99, s. 33.) The pleader before pleading not guilty by statute merely, will, of course, satisfy himself that the particular statute under which the defendant was acting authorises the use of this plea. In Green v. Hutt, 51 L. J. 640, a notice of action given under 24 & 25 Vict. c. 96, s. 113, was correct in all particulars, except that it specified the arrest as having taken place on the 13th of April instead of the 12th of April. Held that such notice was not invalidated by a mere mistake in the date not calculated to injure or prejudice the defendant.