CHAPTER III.

ACTION FOR FALSE IMPRISONMENT.

§ 1. The form of the action.

2.

3.

The common-law action of trespass.

Where the action lies.

(1) Immunity to judicial officers.

(2) Proceeding without jurisdiction of the subject-matter.

(3) Irregular proceedings.

(4) Abuse of process.

(5) Proceedings without process.

4. What is necessary to sustain the action.

Applications of the law.

(1) Party not responsible for process issued without direction or sanction.

(2) Liability of justice, constable and prosecutor under void pro

ceedings.

(3) An arrest upon probable cause.

§ 1. The form of the action.

The action for false imprisonment is the common-law action of trespass, or its substitute in those states where the common-law forms are abolished. It is a form of action which lies to recover damages for the injury sustained by a person, as the immediate consequence of some wrong done forcibly to his person or property, against the person committing the injury. It is the proper action for injuries to the person, as by wounding, assault and battery, false imprisonment, and the like.1 In those jurisdictions where the different forms of actions are abolished, the law applicable to the cause of action, the parties and the evidence is, as a general rule, unchanged.

§ 2. The common-law action of trespass.-The action of trespass lies for injuries committed with force, and generally only for such as are immediate. The force may be either actual or implied. The intention of the wrong-doer is in gen

1 Beecher v. Parmele, 9 Vt., 352 (1837); Andre v. Johnson, 6 Blackf. (Ind.), 375 (1843); Maher v. Ashmead, 30 Pa. St., 344; 72 Am. Dec., 708

(1858); Hally v. Carson, 39 Ala., 345 (1864): Castro v. De Uriarte, 12 Fed. Rep., 250 (1882); 1 Chitty, Pleadings, 182.

eral immaterial in this action, and when the defendant has been acquitted of a criminal offense involving a trespass he may be sued in this action for the injury.1

§ 3. Where the action lies, etc.- The application of the action of trespass to injuries committed under color of legal process may be considered under five heads:

(1) IMMUNITY TO JUDICIAL OFFICERS. In general the action cannot be supported for any act, however erroneous, if it be expressly sanctioned by the judgment of a superior or court of general jurisdiction or by an inferior magistrate acting within the scope of his jurisdiction. If the judge of an inferior court has jurisdiction over the subject-matter he is not liable as a trespasser, however erroneous the conclusion at which he arrives may be. But when an inferior court is guilty of an excess of jurisdiction the action may be supported for anything done under such proceeding. In case of an error by ministerial officers, this action may be sustained if the injury complained of was committed with force and was the immediate result of the act."

(2) PROCEEDINGS WITHOUT JURISDICTION OF THE SUBJECT-MATTER. Where the court has no jurisdiction over the subjectmatter, trespass is the proper form of action against all the parties for any act which independently of the process would be remedied by this action. Justices of the peace and other inferior magistrates are liable in trespass, if, on their convicting or making an order on a party under a statute, where the conviction or order on the face of it does not show that any offense has been committed, and discloses that they have acted without jurisdiction, or if the conviction or order show an excess of jurisdiction by them; and in these cases trespass lies against the magistrates for any imprisonment upon the conviction or order, although the conviction or order has not been quashed, and this is an imputation of malice. A magis.

11 Chitty on Pleading, 166; 2 Campb., 465: 3 East, 593; 1 Campb., 497; Heker v. Jarret, 3 Binn. (Pa.), 404 (1811).

5 Blood v. Sayre, 17 Vt., 609 (1843); Case v. Shepard, 2 Johns. Cas. (N. Y.), 27 (1800); Putnam v. Man, 3 Wend., 202 (1829); Bigelow v.

2 Henderson v. Brown, 1 Caines' Stearns, 19 Johns. (N. Y.), 39 (1821);

Rep. (N. Y.), 92 (1804).

31 Chitty's Pleading, 181.

1 Chitty's Pleadings, 182.

61 Chitty's Pleadings, 182.

41 Chitty's Pleadings, 182.

trate is a trespasser if the warrant of commitment does not show an offense over which he has jurisdiction, although there may have been a previous regular conviction which is still in force. He is liable if the warrant of commitment substantially vary from the conviction, so that the offense stated in the former and that described in the latter are in law wholly different in their nature, for in such case the commitment has no conviction to support it; or where he maliciously grants a warrant against another and causes his arrest without any information upon any supposed charge or felony; or where he commits a party charged with felony for re-examination for unreasonable time but without any improper motives.1

(3) IRREGULAR PROCEEDINGS.- Where a court has jurisdiction but the proceeding is irregular, trespass against the attorney and plaintiff is, in general, the proper form of action; and where a judgment has been set aside for irregularity this is the appropriate remedy for any act done under it."

(4) ABUSE OF PROCESS.- Where the process of any court has been abused, trespass against the sheriff or other ministerial officer committing the same is the proper action if the conduct of the officer was in the first instance illegal, and an immediate injury to the person of the plaintiff. And, although the conduct of the officer was in the first instance lawful, yet, if he abuses his authority and commits some act of trespass not warranted by the process, as detaining a party on a capias ad satisfaciendum after he tenders the debt and costs, he becomes a trespasser ab initio.

(5) PROCEEDINGS WITHOUT PROCESS. When a ministerial officer proceeds without warrant to arrest a person on the information of another, trespass is the proper form of action against the informer if it turns out that no offense for which an arrest without a warrant is justifiable had been committed

11 Chitty's Pleading, 183.

2 Rogers v. Jones, 3 B. & C., 409 (1824); Massey v. Johnson, 12 East, 67 (1810); 1 Chitty's Pleading, 183.

31 Chitty's Pleading, 183.

R. (Pa.), 188; 1 Chitty's Pleading, 184.

6 Melville v. Brown, 15 Mass., 82 (1818); Douglas v. The State, 6 Yerg., 525 (1834); Ratcliffe v. Burton,

4 Davis v. Caffer, 10 B. & C., 28 3 B. & P., 223; Steadman v. Crane, (1829); 1 Chitty's Pleading, 183.

11 Met. (Mass.), 295 (1846); 1 Chitty,

5 Milliken v. Brown, 10 Serg. & Pleading, 185.

by any person. And trespass is the remedy against the informer if there was no warrant, although it appears that some person had committed the offense, and it is one for which an arrest might legally be made without a warrant, provided there was not reasonable or probable cause for charging the person with having committed the offense. Where an officer proceeds without warrant and without foundation, upon his own apprehension, trespass is the proper form of action against him.2

4. What is necessary to sustain the charge.-- In order to sustain a charge for false imprisonment it is not necessary for the plaintiff to show that the defendant used violence, or laid hands upon him, or shut him up in any jail or prison; but it is sufficient to show that the defendant at some time or place in some manner restrained the plaintiff of his liberty, or detained him in any manner from going where he wished or prevented him from doing as he desired."

APPLICATION OF THE LAW.

(1) Mistake of the justice — A party not responsible for issue of process in justice court without his direction or sanction.

In an action of trespass for false imprisonment, Trask, the defendant, April 11, 1826, recovered judgment of $37.50 against the plaintiff, Taylor, a freeholder and a man of family, before a justice, and immediately made the oath required by the third proviso to the fourteenth section of the Fifty-dollar Act (Sess. 47, ch. 338, p. 287, Laws of New York), that he would be in danger of losing his debt if execution was not immediately issued. The justice (who was a witness upon the trial) stated that he informed Trask that he then had no blank executions with him, but would issue an execution the next morning. That he, accordingly, the next day issued an execution, directing the constable to levy the damages and costs of the goods and chattels of Taylor; and for the want thereof to commit his body to jail. That he made use of an old blank, and, by mistake, omitted to strike out that part of the execution which directed the body of the defendant to be taken. That Trask gave no direction as to what kind of execution was to be issued, but simply made the oath required by the statutes and directed the witness to issue an execution. The witness delivered the execution to the constable, and Trask did not see it before it was delivered to the constable, nor until Taylor was arrested.

11 Chitty, Pleading, 186; Hedges ▼. Chapman, 2 Bing., 523 (1825); Flewster v. Royle, 1 Campb., 187 (1808).

velt v. Burwell, 1 Salk., 396; Lord Raymond, 454; 1 Chitty, Crim. Law, 21, 22.

3 Hawk et al. v. Ridgway, 33 Ill.,

21 Chitty, Pleading, 185; Groen- 473 (1864).

Taylor was discharged as soon as the mistake was discovered and by the order of Trask as soon as he learned the arrest. That was before Taylor was committed to prison.

The jury, by the direction of the judge and with the assent of the parties, found a verdict for the plaintiff for nominal damages, subject to the opinion of this court.

Sutherland, J.: Here the duty of the justice is clearly and explicitly pointed out. He is expressly prohibited from issuing an execution against the body of a defendant in the cases enumerated in the proviso. He had no jurisdiction to award the process which was issued in this case. It was not demanded from him by the defendant. He made the oath required by law and requested an execution; that is, such execution as the law entitled him to, with respect to which there was no doubt or uncertainty. The case, therefore, stands precisely as it would have done if the defendant had in terms requested the justice to issue an execution against the goods and chattels of Taylor only. In such a case, I apprehend, the party would not be responsible for the accidental or unintentional error of the magistrate. Judgment for the defendant. Taylor v. Trask, 7 Cow., 247 (1827), cited in 24 Am. Dec., 48; 5 Duer, 124; 19 Am. Dec., 484; 1 Wend., 216; 5 Wend., 243, 299; 8 Wend., 467, 681; 10 Wend., 363; 16 Wend., 46; 5 Barb., 468; 1 Denio, 595; 5 Lans., 107.

(2) Liability of prosecutor, justice and constable — Void proceedings. William E. Goddard went before the defendant, Jerome B. Forbes, a justice of the peace, and charged Samuel D. Hicks with the crime of being a fugitive from justice, by a written complaint upon oath. The justice issued a warrant for the arrest of Hicks, and placed it in the hands of Robert Mason, a constable. Mason arrested Hicks, and brought him before the justice. A trial was had, the justice found Hicks guilty in manner and form as charged in said complaint, and ordered him to be detained by the said constable for the period of ten days, unless sooner discharged or removed by operation of law, and issued a mittimus to said Robert Mason to that effect. Hicks continued in the custody of Mason until he was discharged by habeas corpus proceedings. For this imprisonment Hicks sued Goddard, Forbes and Mason.

Upon the trial Hicks took the stand, and testified that he was the plaintiff in the case; that he resided at Republican City; that he was in the custody of Robert Mason for nine days; that Mason told him that if he would conclude to stay with him, and not try to get away, he might stay with him, and he would not put him in jail; that he was before Forbes and Forbes turned him over to Mason; that he had to employ an attorney, and paid him $50; that he lost nine days while in custody; that he had to hire his brother to go and see an attorney, for which he paid him $3; and that Mason kept control of him all the time. To the question, "What was your time worth while you were in custody?" he answered, "Well, more than usual, as I wanted to go to seeding, and my wife was sick, and I ought to have been right there with her."

Copy of the docket entries.—"The State of Nebraska v. R. B. Hicks, February 28, 1887. Complaint in writing and on oath made and filed be