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False Imprisonment

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FALSE IMPRISONMENT. Any unlawful restraint of a man's liberty, whether in a place made use of for imprisonment general ly, or in one used only on the particular oc casion, or by words and an array of force, without bolts or bars, in any locality what ever. 1 Bish. Cr. Law § 553; Webb's Poll. Torts 259 ; State v. Rollins, 8 N. H. 550 ; Smith v. State, 7 Humphr. (Tenn.) 43; Floyd v. State, 12 Ark. 43, 54 Am.. Dec. 250; 7 Q. B. 742; Wood v. Kinsman, 5 Vt. 588; Adams v. Freeman, 9 Johns. (N. Y.) 117; Webber v. Kenny, 1 A. K. Marsh. (Ky.) 345; Fotheringham v. Express Co., 36 Fed. 252, 1 L. R. A. 474 ; Moore v. Thomp son, 92 Mich. 498, 52 N. W. 1000 ; Callahan v. Searles, 78 Hun 238, 28 N. Y. Supp. 904.

The total, or substantially total, restraint of a man's freedom of locomotion, without authority of law, and against his will. Big. Torts 113. Partial and conditional restraint is held not to constitute false imprisonment; Crossett v. Campbell, 122 La. 659, 48 South. 141, 20 L. R. A. (N. S.)• 967, 129 Am. St. Rep. 362 ; 7 Q. B. 742 ; Sullivan v. R. Co., 148 Mass. 119, 18 N. E. 678, 1 L. R. A. 513; as where the restraint was voluntary, in that it rested with the plaintiff to terminate it by desisting from the doing of an unlawful act; Crossett v. Campbell, 122 La. 659, 48 South. 141, 20 L. R. A. (N. S.) 967, 129 Am. St. Rep. 362; but where one is restrained until he shall make certain promises ; Hilde brand v. McCrum, 101 Ind. 61 ; Bonesteel v. Bonesteel, 28 Wis. 245 ; or statements ; Mc Nay v. Stratton, 9 Ill. App. 215 ; or pay ments; Smith v. State, 7 Humph. (Tenn.) 43 ; it is usually held, an imprisonment.

Arresting the wrong person under a war rant constitutes false imprisonment; F. Moo. 457 ; so if there is a misnomer in the war rant, even though the person actually intend ed was arrested ; Scott v. Ely, 4 Wend. (N. Y.) 555; and if the officer makes the arrest out of his' bailiwick, or detains the person unduly ; 4 B. & C. 596; an arrest under a void writ constitutes a false imprisonment ; Deyo v. Van Valkenburgh, 5 Hill (N. Y.) 242. A writ may be void because defective in language, because the court had no juris diction of the proceedings, or because the court had no jurisdiction to issue the writ ; Big. Torts 122; Nixon v. Reeves, 65 Minn. 159, 67 N. W. 989, 33 L. R. A. 506. The clerk of the court who issues a defective writ, or one not authorized by the court, is liable ; and so is a judge who orders a writ which he had no right to issue, or where he had no jurisdiction. Both the attorney and his client may be liable if the former ordered the arrest, and even when the arrest has been ordered by a judge, i. e. in a case where they participate in making the arrest ; Big. Torts 128; or where the writ was issued by the misconduct of the attorney ; id. 129.

A judge of a superior court can never be liable for an act done by him in his official capacity ; [1895] 1 Q. B. 668. Otherwise of a judge of an inferior court, if he acted be yond his jurisdiction ; 1 B. & C. 169 ; and it must appear that he knew or had means of knowing that he was doing so ; 3 Bing. 78 ;

a mistake of law will not protect him ; 19 L. J. Q. B. 70.

If the writ be voidable it must be set aside before an action for false imprisonment will lie, but otherwise if it be void ; id. 131.

Every imprisonment of a man is prima facie a trespass, and in an action to recover damages therefor, if the imprisonment is ad mitted or proved, the burden of justifying it is on the defendant ; Bassett v. Porter, 10 Cush. (Mass.) 418; Jackson v. Knowlton, 173 Mass. 94, 53 N. E. 134; McCarthy v. De Armit, 99 Pa. 63; McAleer v. Good, 216 Pa. 473, 65 Atl. 934, 10 L. R. A. (N. S.) 303, 116 Am. St. Rep. 782 ; Franklin v. Amerson, 118 Ga. 860, 45 S. E. 698 ; Barker v. Anderson, 81 Mich. 508, 45 N. W. 1108. Where the ar rest was under a warrant lawfully issued and by a person entitled to issue it, then a justification is made out and the burden is on the plaintiff to show that the warrant was wrongly issued ; Snow v. Weeks, 75 Me. 105; Petit v. Colmery, 4 Pennewill (Del.) 266, 55 Atl. 344. r An arrest and detention, without a war rant, of one acting in a disorderly manner in a public place, by one clothed with the authority of a police officer, is not a false imprisonment ; Erie R. Co. v. Reigherd, 166 Fed. 247, 92 C. C. A. 590, 20 L. R. A. (N. S.) 295, 16 Ann. Cas. 459. Where the accused Pleads guilty,, his right to recover for false arrest is barred ; Billington' v. Floverman, 18 Ohio C. P. 637 ; Williamson v. Wilcox, 63 Miss. 335; Howe Mach. Co. V. Lincoln, 24 Kan. 123 ; Williams v. Shillaber, 153 MAss. 541, 27 N. E. 767 ; Ilsley 'v. ,Harris, 10 Wis. 96; Jones v. Foster, 43 App. Div. 33, 59 N.

Y. Supp. 738; Maxwell v. Deens, 46 Midi. 35, 8 N. W. 561.

Malice is not an element of false imprison ment; Hewitt v. Newburger, 66 Hun 230, 20 N. Y. Supp. 913 ; Gillingham v. R. Co., 35 W. Va. 588, 14 S. E. 243, 14 L. R. A. 798, 29 Am. St. Rep. 827; except so far as it affects the measure of damages ; Johnson v. Bouton, 35 Neb. 898, 53 N. W. 995.

In order to be restored to liberty, the remedy is, by writ of habeas corpus. An ac tion of trespass vi et armis lies. To punish the wrong done to the public by the false imprisonment of an individual, the offender may be indicted; 4 Bla. Com: 218 ; 2 Burr. 993. See Bacon, Abr. Trespass (D, 3) ; Pike v. Hanson, 9 N. H. 491; State v. Guest, 6 Ala. 778; Click v. State, 3 Tex. 282 ; Allen v. Shed, 10 Cush. (Mass.) 375.

One cannot maintain an action for false imprisonment where he is arrested by a proper officer, under a warrant lawful on its face, and issued by proper authority ; Leib v. Shelby Iron Co., 97 Ala. 626, 12 South. 67; Johnson v. Morton, 94 Mich. 1, 53 N. W. 816. Justification is not available as a defence unless pleaded; Wilson v. R. Co., 2 Misc. 127, 20 N. Y. Supp. 852.

Damages may be recovered against a char itable institution for false imprisonment and the question of good intention is immaterial; Gallon v. House of Good Shepherd, 158 Mich. 363, 122 N. W. 63i, 24 L. R. A. (N. S.) 286, 133 Am. St. Rep. 387.