§ 34. The law stated by Nelson, C. J.-In an action for maliciously suing out an attachment Chief Justice Nelson laid down the law as follows: "This action lies against any person who maliciously and without probable cause prosecutes another, whereby the party prosecuted sustains an injury, either in person, property or reputation."1

35. Attorney's liability for bringing a civil suit.- In general, it is true that an action cannot be maintained against an attorney on the ground of his instrumentality in bringing a civil action against the plaintiff, unless where he has commenced such suit without the authority of the party in whose name he sues, or, unless there is a conspiracy to bring a groundless suit, knowing and understanding it to be groundless, and without any intent or expectation of maintaining the suit.2 The law stated by Shaw, C. J.: "I am not prepared to say that if a person applies to an attorney, wishing to have a groundless suit commenced, for the purpose of detaining the property or the person of another under the forms of legal process, and the attorney yields to such a request, that they would not render themselves liable to an action at the suit of the party thus injured. It would be very different from the case where a client requests an action to be brought on his responsibility, however groundless the attorney himself may think it to be, and though he explicitly declared to the client. that he could not maintain the action. 'Knowing,' 'believing' or 'supposing' it groundless are only expressions indicating different degrees of the attorney's belief; the party may have grounds for proceeding, not known to the attorney, and he has a right to judge for himself."

36. Survival of the action.-The English common law upon this subject, as it exists in nearly all of the states of our Story, 4 Humph., 168 (1843); Pettit 1 Nelson, C. J., in Bump v. Betts, v. Mercer, 8 B. Mon., 51 (1847); Senecal v. Smith, 9 Rob., 418 (1845); Tomlinson v. Warner, 9 Ohio, 103 (1839): Spengler v. Davy, 15 Gratt., 381 (1859); McLaren v. Birdsong, 24 Ga., 265 (1858); Hill v. Paldron, 38 Mo., 258 (1866); Bump v. Betts, 19 Wend., 421 (1838); Pierce v. Thompson, 6 Pick., 192 (1828).

19 Wend. (N. Y.), 421 (1838), citing 1 Selw., 806; Saund. Pl. & Ev., 651; 2 Chitty, Pl., 248, n. r; 12 Mod., 208; 1 Salk., 12; 1 T. R., 493, 551.

2 Bicknell v. Dorion, 33 Mass., 478 (1835).

3 Bicknell v. Dorion, 33 Mass., 478 (1835).

Union, is said by some authors to come to us by the statute 3 Edward III., chapter 8. It enacts that any kind of injury to a person by which his property has been rendered less beneficial gives a right of action which may be assigned or survives to his personal representatives. Hence the rights of a person for mere personal injuries, such as malicious prosecution, cannot be assigned and do not survive to the personal representatives of the injured party; but when the action is brought for an injury to the property of a person, the rule is otherwise and the action does not die with the person.

APPLICATION OF THE LAW.

Survival of the action for malicious prosecution.

Thomas Conly sued Michael Conly for malicious prosecution. At the trial the jury found for the defendant, and the plaintiff took exceptions to the ruling of the court. The defendant died, and his administrator appeared in the suit and moved to dismiss the action on the ground that it did not survive.

By the Court.- "It is useless to consider the merits of the exceptions, because if they should be sustained the action could not be further prosecuted, having been abated by the defendant's death since the exceptions were allowed." Conly v. Conly, 121 Mass., 550 (1877), citing Gen. Stats. Mass.. ch. 127, § 1; Nettleton v. Dinehart, 5 Cush., 543; Cummins v. Bird, 115 Mass., 346.

NOTE.-Statute of Massachusetts — Actions which survive. - In addition to the actions which survive by the common law, the following shall also survive: Actions of replevin, of tort for assault, battery, imprisonment, or other damage to the person, for goods taken and carried away or converted by the defendant to his own use, or for damage done to real or personal estate, and the actions against sheriffs for malfeasance or nonfeasance of themselves or their deputies.

1 Hoyt v. Thompson, 5 N. Y., 320 (1851); 1 Chitty's Pleading, 69; Zabriskie v. Smith, 36 Barb. (N. Y.), 270 (1862); 14 Am. & Eng. Enc. Law, 37 (1890). In the London edition of the English statutes at large, published in 1811, no statutes of 3 Edward III. are given. In volume 1, page 448, the following is given as 4 Edward III., caption 7: "Executors shall prove an Action of Trespass for a Wrong done to their testator.

Also whereas in Times past Executors have not had Actions for Trespasses done to their Testators, as of the Goods and Chattels of the

Mass. Gen. Statutes, 1882, 958, § 1.

same Testators carried away in their Life, and no such Trespassers have hitherto remained unpunished; It is accorded, That the Executors in such Cases shall have an action against the Trespassers, to recover Damages, in like Manner, as they, whose Executors, they be should have had if they were in life." 4 Edw. III.. ch. 7, A. D. 1330; English Statutes at Large, London, 1811, vol. 1, page 448. 2 Nettleton v. Dinehart, 5 Cush. (Mass.), 543 (1850); Lawrence v. Martin, 22 Cal., 173 (1863); Comegys v. Vasse, 1 Pet. (U. S.), 193 (1828); 14 Am. & Eng. Ency. Law, 37 (1890).

CHAPTER II.

FALSE IMPRISONMENT.

§1. False imprisonment defined by Blackstone. 2. The same defined by Pollock.

3. The right of personal liberty- Exceptions. Application of an exception.

4.

Restraint of an insane person.

Discussion of the subject.

5. Arrest defined.

(1) Arrest in civil cases.

(2) Arrest in criminal cases.

6. General rules of law relating to arrests.

7. Detention of the person.

8.

Applications of the law.

(1) What is a sufficient imprisonment.

(a) Detention of person by cashier of a bank.

(b) Imprisonment of an infant-Assent immaterial.

(c) A forcible ejectment.

(d) A sufficient arrest and imprisonment.

(2) What is not sufficient.

(a) Submitting to detention under a misapprehension of

the law.

(b) A constable carried away to sea.

Summary of the law of arrest.

9. Arrests with process.

10. What is a regular and sufficient warrant.

11.

The essentials of a criminal complaint and warrant.

12. Officers protected by process, etc.

13. Arrests without process.

(1) At common law.

(2) Under statutes.

An illustration - The statute of Illinois.

Applications of the law.

(1) Time of making an arrest upon view.

(2) Arrest without warrant, justifiable - Breach of the

peace.

(3) Power to arrest without warrant must be exercised

promptly.

14. The manner of arrest-Use of handcuffs, etc.

15. The rule stated by Gwynne.

The law illustrated.

The use of handcuffs.

$ 16.

17.

18.

19.

Abuse of process.

Discussion of the subject.

An application of the law.

Carrying person arrested out of the jurisdiction.

The officer must arrest the right person.

A distinction.

20. Arrest of night-walkers.

21. Night-walker-The term defined.

22. Discussion of the subject.

The law illustrated.

What is probable cause to arrest a night-walker.

23. Power of magistrates to imprison for breaches of ordinances. 24. Power of magistrates to fix the place of imprisonment.

25. Power to arrest in constables and police officers.

26. Special patrolmen

Officers appointed for special duty in stores,

hotels, etc.- Liability of the person who pays them, etc.

27. Depot-masters not conservators of the peace at common law.

28. Private persons appointed by magistrates - Minors appointed, etc. Arrests by private persons upon view and information.

29.

(1) Arrests upon view.

(2) Upon information.

The law illustrated.

Liability of a merchant for arrest upon view by his clerk.

30. Private persons assisting officers.

31. Duty of private persons making an arrest.

32. Arrest of a fugitive from justice.

To con

§ 1. False imprisonment defined by Blackstone. stitute the injury of false imprisonment there are two points requisite: 1. The detention of the person; and 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment, whether it be in a common prison or in a private house, or in the stocks, or even by forcibly detaining one in the public streets. Unlawful or false imprisonment consists in such confinement or detention without sufficient authority, which authority may arise either from some process from the courts of justice or from some warrant from a legal officer having power to commit, under his hand and seal, and expressing the cause of such commitment; or from some other special cause warranted from the necessity of the thing, either by common law or by act of parliament, such as the arresting of a felon by a private person without warrant, the impressN. H., 491; Smith v. State, 7 Humph. (Tenn.), 43.

12 Coke's Institutes, 589 (1620); Johnson v. Tompkins, 1 Bald. (U. S. C. C.), 571; Pike v. Hanson, 9

22 Coke's Institutes, 46 (1620).

ing of mariners for the public service or the apprehending of wagoners for misbehavior in the public highways. False imprisonment may also arise by executing a lawful warrant or process at an unlawful time, as on Sunday; for the statute hath declared that such service of process shall be void.3

§ 2. False imprisonment defined by Pollock.- Freedom of the person includes immunity not only from the actual application of force, but from every kind of detention and restraint not authorized by law. The infliction of such restraint is the wrong or false imprisonment, which, though generally coupled with assault, is nevertheless a distinct wrong; laying on of hands or other actual constraint of the body is not a necessary element, and if "stone walls do not a prison make” for the hero or the poet, the law none the less takes notice that there may be an effectual imprisonment without walls of any kind. Every confinement of the person is an imprisonment, whether it be in a common prison or in a private house, or in the stocks, or even by forcibly detaining one in the public streets; and when a man is lawfully in a house, it is imprisonment to prevent him from leaving the room in which he is. The detainer must be such, however, as to limit the party's freedom of motion in all directions. It is not an imprisonment to obstruct a man's passage in one direction. A prison may have its boundary large or narrow, invisible or tangible, actual or real, or, indeed, in conception only; it may in itself be movable or fixed; but a boundary it must have, and from that boundary the party imprisoned must be prevented from escaping; he must be prevented from leaving that place within the limit of which the party imprisoned could be confined, otherwise every obstruction of the exercise of a right of way may be treated as an imprisonment." A man is not imprisoned who has an escape open to him; that is, we apprehend, a means of escape which a man of ordinary ability can use without peril

1 Statutes Geo. III., ch. 78.

2 Statutes Charles II., ch. 7; Salkeld's Reports, 78 (1689); 5 Modern Reports, 95 (1695).

33 Blackstone's Comm., 127 (1765). 4 Pollock on Torts, 189 (1886); 3 Black. Comm., 127 (1765).

5 Warner v. Riddiford, 4 C.. B. (N. S.), 180; Grainger v. Hill, 4 Bing. N. C., 212 (1838).

6 Bird v. Jones, 7 Q. B., 742 (1845); 15 L. J. Q. B., 82.