An action for false imprisonment was brought by a native and inhabitant of Minorca, (then part of the dominions of the crown of Great Britain) against the governor of the island, for imprisoning the plaintiff at Minorca, and causing him to be carried thence to Carthagena, in Spain. The plaintiff laid the venue in London, stating the injury to have been committed at Minorca, to wit, at London in the parish of St. Mary-le-Bow, &c. The defendant justified, on the ground that the plaintiff had endeavoured to create a mutiny among the inhabitants of Minorca, whereupon the defendant, as governor, was obliged to seize the plaintiff, and imprison him, &c. The plaintiff replied de injuriâ suá propriâ, After verdict for plaintiff, with 30001. damages, a bill of exception was tendered, and error having been assigned thereon, it was contended, (among other things) 1st, That the plaintiff, being a Minorquin, was incapacitated from bringing an action in the king's courts in England: but it was holden, that a subject born in Minorca was as much intitled to appeal to the king's courts as a subject born in Great Britain; and that the objection of its not being stated on the record, that the plaintiff was born since the treaty of Utrecht, did not make any difference. 2dly, It was objected, that the injury having been done at Minorca, out of the realm, could not be tried in the king's courts in England; but it was holden, that an action for false imprisonment being a transitory action, it was competent to the plaintiff to lay it in any county of England, although the matter arose beyond the seas (2). If a person causes another to be impressed, he does it at his own peril, and is liable in damages, if that person can shew that he was not subject to the impress service. The defendant went to the place of rendezvous' for the impress service, near the Tower, and gave information that there was a young man (meaning the plaintiff) at a house she described, who was liable to be impressed, and who was a fit person to serve his Majesty. In consequence of this, the plaintiff was seized by the press-gang, and carried on board the tender, where he was detained, until it was dis k Mostyn v. Fabrigas, in error, M. T. 15 G. 3. B. R. Cowp. 161 (2). 1 Flewster v. Royle, 1 Camp. N. P. C. 187. Ld. Ellenborough, C. J. (2) The proceedings in all the stages of the cause will be found reported at great length in the eleventh volume of the State Trials, p. 162. edited by Mr. Hargrave. covered that he had never been in a ship before, except once, when he had been in like manner wrongfully impressed. An action for trespass and false imprisonment having been brought, it was objected that the form of action should have been an action on the case, and not an action of trespass; but Ld. Ellenborough, C. J. was of a different opinion, observing, that this was not like a malicious prosecution, where a party gets a valid warrant or writ, and gives it to an officer to be executed. There was clearly a trespass here in seizing the plaintiff, and the defendant therefore was a trespasser in procuring it to be done. An action will not lie at common law for false imprisonment, where the imprisonment was merely in consequence of taking a ship as prize, although the ship has been acquitted. Trespass for false imprisonment will lie against overseers of the poor for imprisoning a man under a justice's warrant, until he should pay a sum of money for the maintenance of a child which should be born of a woman then pregnant by plaintiff, but who had not as yet been delivered. If A., having been robbed, suspect B. to be guilty of the robbery, and take B., and deliver him into the charge of a constable present, B. (if innocent) may maintain trespass and false imprisonment against A. If a prisoner in execution escape by the voluntary permission of the gaoler, and the gaoler retake him, he is liable to an action of false imprisonment. But an officer who has arrested a prisoner on mesne process, and voluntarily permitted him to escape, may retake him before the return of the writ, without being liable to such action. Trespass for false imprisonment will lie for a detention under a lawful process, if it be executed at an unlawful time as on a Sunday; for by stat. 29 Car. 2. c. 7. s. 6. it is provided, “That no person upon the Lord's day shall serve or execute, or cause to be served or executed, any writ, process, warrant, order, judgment, or decree, (except in cases of treason, felony, or breach of the peace) (3); but that m Le Caux v. Eden, Doug. 594.. n Wenman v. Fisher, M 2 G. 2. B. R. MSS. cited in R. v. Banghurst, H. 5. G. 2. B. R. Sess. Ca. vol. 1. p. 149. o Stonehouse v. Elliot, 6 T. R. 315. (3) In Taylor v. Freeman and another, Glouc. Lent Ass. 1757. MSS. it appeared, that the defendants as constables, had arrested the service of every such writ, &c. shall be void, and the person or persons so serving or executing the same shall be as liable to the suit of the party grieved, and to answer damages to him for doing thereof, as if he or they had done the same without any writ, process, &c." Trespass for false imprisonment may be maintained against the sheriff for an arrest made by his bailiff after the return day of the writ'. So against commissioners of bankrupt', who commit a person suspected to detain effects of the bankrupt for not attending on the first summons; for the statute directs, 1st, a summons to the party (4); 2dly, on his default or neglect, a warrant to bring him before the commissioners in custody in order to be examined (5), or else a second summons, at their discretion; 3dly, if when brought in custody he refuses to be examined, or upon a second summons refuses to come (6), then, and not before, the commissioners have power to commit. r Parrot v. Mumford, 2 Esp. N. P. C. 585. Prior, C. J. s Battye v. Gresley, 8 East, 319. the plaintiff upon a Sunday, by virtue of a warrant from a justice of the peace, for getting a bastard child. An action for false imprisonment having been brought, Adams, Baron, held, that plaintiff was intitled to recover. (4) It is not necessary, upon the summons, to tender the witness the expenses of his journey beforehand; though if he be in fact without the means of taking the journey, it may be an excuse for not obeying the summons; it lies, however, on the party so summoned having a lawful excuse for not attending, to prove the fact, in an action of trespass and false imprisonment brought by him for such arrest. Battye v. Gresley, 8 East, 319. (5) The warrant for the arrest of the witness, in order to examine him, may issue after his disobedience to the first summons. The propriety of granting the warrant of commitment being an act of discretion, must be determined upon the commissioners acting together at the time; and their order to their officer, to make out such warrant, must be taken to include their direction as to the persons to whom it is to be directed; but the mere act of signing the names of the commissioners to the warrant, may be done by them separately. S. C. (6) The general practice has been to issue a second summons upon the neglect of the first, before the warrant of commitment; but the act does not require a second summons. It is in the disjunctive. The first branch is complete, and the next may well be taken When a court has jurisdiction of the cause, and proceeds inverso ordine, or erroneously, an action does not lie against the party who sues, or the officer or minister of the court who executes the precept or process of the court; but when the court has not jurisdiction of the cause, the whole proceeding being coram non judice, an action will lie against them, without any regard to the precept or process (7). Hence, where one of the bail had been arrested by process out of the Marshalsea, for the purpose of satisfying a judgment obtained against the principal in a cause, of which the Marshalsea court had no jurisdiction, it was holden, that an action for false imprisonment would lie against the party who sued, the marshal who directed the execution of the process, and the officer who executed the same. In the case of a warrant illegal on the face of it for an excess of jurisdiction in the magistrate, trespass is maintainable against the committing magistrate, although the conviction has not been quashed'. A conviction stated, that plaintiff, having been brought before a magistrate on an information charging him with hav ing unlawfully returned without a certificate to a parish from which he had been removed, and that upon that occasion he confessed himself guilty; it was holden, that this conviction was good upon the face of it, and that it was not necessary to state in it expressly any act of vagrancy, it being for the party convicted to show in his defence, that he did not return in a state of pauperism. If a justice of the peace make a warrant to a constable to bring A. B. before him, for a matter of which he has a ge u Second resolution, Marshalsea case, 10 Rep. 76. a. Marshalsea case, 10 Rep. 68. b. y Groome v. Forrester, B. R. Trin. 56 Geo. 3. z Mann v. Davers, 3 B. & A. 103. to mean, that if a party, after having once before been summoned, and appearing, or having lawful impediment for not appearing, be summoned again, and do not appear, &c. having no lawful impediment, he may be committed, as well as if he neglect to appear on the first summons, having no lawful impediment. Per curiam, in Battye v. Gresley, 8 East, 326. See (7) This principle has been recognised in several cases. Nichols v. Walker, Cro. Car. 395. Hill v. Bateman, Str. 711. Shergold v. Holloway, Str. 1002. Sessions Cases, vol. 2. p. 100. S. C. Perkin v. Proctor, 2 Wils. 384. and since in Brown v. Compton, 8 T. R. 424. neral cognisance, though the J. P. had no foundation in fact for granting such a warrant, or though the warrant itself be defective in point of form, yet the constable may justify under it; but if the J. P. make a warrant to take up A. B. to answer in a plea of debt, a constable cannot justify under such a warrant, because the justice has not any jurisdiction of debts". II. Statutes relating to the Action of False Imprisonment, 21 Jac. 1. c. 12.-24 Geo. 2. c. 44. Stat. 21 Jac. 1. c. 12.-By stat. 21 Jac. 1. c. 12. s. 5. it is enacted, "if any action, bill, plaint, or suit, for false imprisonment, shall be brought against any J. P., mayor, or bailiff of city, or town corporate, headborough, portreve, constable, tithing-man, churchwarden, or overseer of the poor, and their deputies, or any other, (who in their aid, or by their commandment, shall do any thing concerning their office) concerning any thing by them done by virtue of their office, such action, bill, &c. shall be laid within the county where the trespass was committed." 2. "The above-mentioned persons may plead the general issue, and give the special matter in evidence." 3. "If upon the trial, the plaintiff shall not prove that the trespass was committed within the county wherein the action, &c. is laid, then the jury shall find the defendant, without respect to the plaintiff's evidence, not guilty." 4. "If the verdict shall pass with defendant, or plaintiff become nonsuit, or suffer any discontinuance, defendant shall have double costs." N. The officer or person acting in aid, in order to intitle himself to double costs, must obtain a certificate from the judge, that, at the time of the trespass, he was a mayor, constable, &c. and in the execution of his office, or that he was acting in aid of mayor, constable, &c. But it is not necessary that this certificate should be granted at the trial. The provisions of the preceding statute having been found very salutary, they have, by a late statute (42 G. 3. c. 85. s. 6.), been extended to all persons holding a public employment, or any office, station, or capacity, civil or military, a Shergold v. Holloway, Str. 1002. b Anon. 2 Ventr. 45. c Harper v. Car. 7 T. R. 449. r |