expressed by the maxim, Volenti non fit injuria, applies and governs such cases. But this maxim or doctrine does not apply to cases where the public is interested, and it has been held from the earliest times that one may recover in a civil action for assault and battery, although he agreed to fight with his adversary; that such agreement or consent is not a bar to the action.128 The fact, however, that the parties fought by agreement may be shown for the purpose of mitigating the damages,129 and this may be shown under a general denial without being specially pleaded. 130 It seems wrong on principle to allow one to recover for an injury which would not have occurred but for the voluntary acts of the injured, and this principle has been followed in one state.181 female has the right to maintain an action for an assault and battery committed by throwing her down and ravishing her, even though she does not resist the sexual intercourse.182

A

128 Bull. N. P. 16; Matthew v. Ollerton, Comb. 218; Bell v. Hansley, 48 N. C. 131; Stout v. Wren, 8 N. C. 420, 9 Am. Dec. 653; Adams v. Waggoner, 33 Ind. 531, 5 Am. Rep. 230; Shay v. Thompson, 59 Wis. 540, 48 Am. Rep. 538; Barholt v. Wright, 45 Ohio St. 177, 4 Am. St. Rep. 535, 12 N. E. 185; Commonwealth v. Collberg, 119 Mass. 350, 20 Am. Rep. 328; Regina v. Lewis, 1 Car. & K. 419; Rex v. Perkins, 4 Car. & P. 537.

129 Id.

130 Barholt v. Wright, 45 Ohio St. 177, 4 Am. St. Rep. 535, 12 N. E. 185.

131 Galbraith v. Fleming, 60 Mich. 403, 27 N. W. 581. 132 Dean v. Raplee, 75 Hun, 389, 27 N. Y. Supp. 438.

CHAPTER XVII.

INJURY TO CONSTITUTIONAL RIGHT OF PERSONAL LIBERTY.

I. BY FALSE IMPRISONMENT.

II.

RESTRAINT OF PERSONS FOR THE PEACE, SECURITY

OR HEALTH OF THE COMMUNITY.

III. MALICIOUS ABUSE OF PROCESS.

I. FALSE IMPRISONMENT.

212. False imprisonment-Defined.

§ 213.

214.

Nature of the detention-Place.

Nature of the detention-Manual restraint not necessary. § 215. The arrest.

§ 216. By whom restraint imposed or arrest made. 217. Same continued-Arrest by private person. When others than arresting officer liable. Liability of private citizen who aids officer.

§ 218.

§ 219.

§ 220.

§ 221.

Agent procuring unlawful arrest-Liability of principal.
Attorney's liability for false imprisonment.

§ 225.

§ 226.

8 227.

Duty as to obtaining warrant when arrest made without-
Detention for unreasonable time.

Joint liability of arresting officers, jailers, etc.

Distinction between false imprisonment and malicious prosecution.

§ 228. Judicial officers-Their liability.

§ 229. Measure of damages.

II.

RESTRAINT OF PERSONS FOR PEACE AND SECURITY
OF HEALTH OF THE COMMUNITY.

$230. Wrongful confinement in asylum or hospital.
§ 231. Restraint of persons with contagious disease.

§ 232. Confinement of inebriates.

III. MALICIOUS ABUSE OF PROCESS. 233. Malicious abuse of process-Nature of wrong. § 234. Same continued-Illustrative cases.

235. Same continued-Who liable.

Torts, Vol. I-30

212. False Imprisonment-Defined.-False impris onment is an injury to the right of personal liberty, and consists in the unlawful restraint of a person against his will, either with or without process. It is a trespass against the person with violence either actual or implied. At common law the act was punished criminally. The two essential elements necessary to constitute the offense are: 1. The detention of the person; and 2. The unlawfulness of the detention.1 "False imprisonment is the unlawful restraint of a person contrary to his will. But two things are requisite, viz., detention of the person, and unlawfulness of such detention. Malice is not material except in aggravation of damages. Nor is probable cause of guilt on the part of the party impris oned, except as it may be rendered so by the provisions. . . . of the code. If the imprisonment is under legal process, but the prosecution has been commenced and carried on maliciously and without probable cause, terminating in the discharge of the defendant, it is malicious prosecution, and not false imprisonment. The action for damages for false imprisonment is in trespass; for malicious prosecution, in case."2 "False imprisonment is necessarily a wrongful interference with the personal liberty of an individual. The wrong of false imprisonment may be committed by words alone, or by acts alone, or by both, or by merely operating on the will of the individual, or by personal violence, or by both. It is not necessary that the individual should be confined within a prison, or within walls, or that he be assaulted or even touched. It is not necessary that any injury

1 For definitions, see Rich v. McInerny, 103 Ala. 345, 49 Am. St. Rep. 32, 15 South. 663; Comer v. Knowles, 17 Kan. 441.

2 Head, J., in Rich v. McInerny, 103 Ala. 345, 49 Am. St. Rep. 32, 15 South. 663 (trespass to person); Burns v. Erben, 40 N. Y. 463.

should be done to the individual's person, or to his character or reputation. Nor is it necessary that the wrongful act be committed with malice, or illwill, or even with the slightest wrongful intention. Nor is it necessary that the act should be done under color of any legal or judicial proceeding. All that is necessary is that the individual be restrained of his liberty without any sufficient legal cause therefor, by words or acts which he fears to disregard."3

4

§ 213. Nature of the Detention-Place.-It is well understood that any detention, if unlawful, is sufficient to constitute false imprisonment. It is not necessary that the person detained should be confined in a prison or within walls. All that is essential is that the individual be restrained of his liberty without any legal cause therefor. The place of detention is immaterial. It may be behind prison walls, barred doors and windows, or in a private house, or business block, as where a clerk goes to a bank to have some notes redeemed, and while counting money the door of the bank is locked, it being closing time, and the bank refuses to permit the clerk to go away for half an hour. Or wrongfully detaining one suspected of shoplifting in a store may be sufficient restraint to constitute false imprisonment. So it is sufficient detention where one is locked in a room, and by threats of violence is com

6

3 Comer v. Knowles, 17 Kan. 441. Neither malice nor want of probable cause are necessary elements: Boeger v. Langenberg, 97 Mo. 390, 10 Am. St. Rep. 322, 11 S. W. 223.

4 Comer v. Knowles, 17 Kan. 441. See 54 Am. Dec. 258, note; 67 Am. St. Rep. 408, note.

5 Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250.

• Id.; Woodward v. Washburn, 3 Denio, 369; Hilderbrand v. McCrum, 101 Ind. 61.

7 Woodward v. Washburn, 3 Denio, 369.

pelled to confess to a breach of promise of marriage. The doors need not even be locked, it being enough if some one stands at the door and prevents an exit." It is an unlawful detention if the restraint be upon the streets.10 It is a case of unlawful restraint where a priest sends persons after one who has charged him with immoral conduct, and upon reaching the house of the priest is compelled, in fear of bodily injury, to retract the charge.11

§ 214. Nature of Detention-Manual Restraint not Necessary. As previously stated, it is not necessary to constitute unlawful restraint or detention that there should be an actual arrest, and however the detention be accomplished, whether by or without an arrest, it is not essential that there should be a manual touching of the body of the person to make it an unlawful restraint.12 A demonstration of physical violence, which to all appearances can only be avoided by submission, operates as effectually, if submitted to, as a forcible arrest.13 "The wrong may be committed by words alone, or by acts alone, or by both, and by merely operating on the will of the individual or by personal violence, or by both."14 Words, gestures, or any movement that effects restraint are sufficient.15 Thus, where a tax assessor,

8 Hilderbrand v. McCrum, 101 Ind. 61.

9 Moore v. Thompson, 92 Mich. 503, 52 N. W. 1000.

10 Hawk v. Ridgway, 33 Ill. 473; Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; People v. Wheeler, 73 Cal. 252, 14 Pac. 796; Comer v. Knowles, 17 Kan. 439.

11 Grace v. Dempsey, 75 Wis. 313, 43 N. W. 1127.

12 Bissell v. Gold, 1 Wend. 210, 19 Am. Dec. 480; Brushaber v. Stegeman. 22 Mich. 267; Moore v. Thompson, 92 Mich. 503, 52 N. W. 1000; Josselyn v. McAllister, 25 Mich. 45; Ahern v. Collins, 39 Mo. 145; Haskins v. Young, 19 N. C. 527, 31 Am. Dec. 426. 13 Brushaber v. Stegeman, 22 Mich. 267.

14 Comer v. Knowles, 17 Kan. 439.

15 Pike v. Hannon, 9 N. H. 491; Maner v. State, 8 Tex. App. 361.