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sion of the military authorities of the United States. In an action for trespass for seizing the property the defendant, among other reasons, justified the seizure on the ground that he acted in obedience to the order of his commanding officer, and therefore was not liable. But the court answered, Mr. Chief Justice Taney speaking for it, by referring to the case of Captain Gambier, mentioned by Lord Mansfield in his opinion in Mostyn v. Fabrigas, 1 Cowp., 180, and observing that "upon principle, independent of the weight of judicial decision, it can never be maintained that a military officer can justify himself for doing an unlawful act by producing the order of his superior. The order may palliate, but it can never justify." And in that case the court added that the defendant did not stand in the situation of an officer who merely obeys the command of his superior, for it appeared that he advised the order, and volunteered to execute it, when that duty more properly belonged to an officer of an inferior grade.

Here the defendant Henry was especially officious in securing the arrest and in continuing the imprisonment of the plaintiff. He advised the arrest; he insisted upon the imprisonment until the payment of the $800 was coerced, and he urged against turning the case over to the civil tribunals. The spirit which actuated him as well as Beckwith is shown in their telling the plaintiff at Sutton, on the day of his arrest, and afterwards, when in confinement in the state prison, "that if they could not hold him as privy to the desertion they should take him to Canada, to be prosecuted there under the foreign enlistment acts for enlisting the men, unless he paid over the money."

The case of Captain Gambier, mentioned by Lord Mansfield and referred to by Mr. Chief Justice Taney, was this: By order of an admiral of the English navy he had pulled down the houses of some sutlers in Nova Scotia who were supplying the sailors with spirituous liquors, by which their health was injured. "The motive," says the chief justice, "was evidently a laudable one, and the act was done for the public service. Yet it was an invasion of the rights of private property, and without authority of law, and the officer who executed this order was held liable to an action, and the sutlers recovered against him to the value of the property destroyed." "This case," he adds, "shows how carefully the rights of private property are guarded by the laws of England; and they are certainly not less valued nor less securely guarded under the constitution and laws of the United States."

The only criticism perhaps to which the charge is open is that it does not distinguish between the conduct of the defendant Beckwith and that of the defendant Henry. The former does not appear from the evidence to have been as officious and persistent as the latter in efforts to hold the plaintiff until the money was coerced from him. But no objection to the charge was made on this ground; nor does it appear that on the trial any distinction was drawn as to the extent of liability between the two defendants, or that any other than compensatory damages were allowed by the jury. They may well have supposed that the amount awarded was at best but poor compensation. Few, indeed, would consider the verdict given as sufficient for the disgrace, humiliation and suffering wantonly inflicted upon the plaintiff. As punitive damages the verdict was not at all excessive. On this last point I will quote from only one case, decided in 1763. It is the case of Huckle v. Money, 2 Wilson, 205, tried before the chief justice of the common pleas of England. The plaintiff was a journeyman printer, and was taken into custody by the defendant, the king's messenger, upon suspicion of having printed a newspaper

called the "North Briton," and was kept in custody six hours; but he was used civilly, so that he suffered little or no damages. The defendant attempted to justify under a general warrant of the secretary of state to apprehend the printers and publishers of that paper; but the justification was overruled by the chief justice, and the plaintiff recovered £300 as damages. A new trial was moved for on the ground that this amount was excessive, it being in evidence that the printer received only weekly wages of a guinea. But the motion was denied, and in giving the decision of the court the lord chief justice said: "That if the jury had been confined by their oath to consider the mere personal injury only, perhaps £20 damages would have been thought damages sufficient; but the small injury done to the plaintiff, or the inconsiderableness of his station and rank in life, did not appear to the jury in that striking light in which the great point of law touching the liberty of the subject appeared to them at the trial; they saw a magistrate over all the king's subjects, exercising arbitrary power, violating Magna Charta, and attempting to destroy the liberty of the kingdom, by insisting upon the legality of this general warrant before them; they heard the king's counsel, and saw the solicitor of the treasury, endeavoring to support and maintain the legality of the warrant in a tyrannical and severe manner - these are the ideas which struck the jury on the trial, and I think they have done right in giving exemplary damages. To enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish inquisition,— a law under which no Englishman would wish to live an hour; it was a most daring public attack made upon the liberty of the subject; I thought that the twentyninth chapter of Magna Charta, Nullus liber homo capiatur et imprisonetur, etc., nec super eum ibimus, etc., nisi per legale judicium parium suorum vel per legem terræ, etc., which is pointed against arbitrary power, was violated."

I am clearly of opinion that the judgment of the court below should be affirmed.

MR. JUSTICE MILLER took no part in the decision.

§ 603. What constitutes.-Imprisonment is any restraint of the personal liberty of another; any prevention of his movements from place to place, or his free action according to his own pleasure and will; a man is imprisoned when he is under control of another in these respects, or either of them, against his own will. It is false imprisonment when this is done without lawful authority; and such imprisonment is deemed an assault in law although no assault in fact is made; the one includes both offenses, the act being unlawful. Johnson v. Tompkins, 1 Bald., 600.

§ 604. When suit for lies. Where a court has no jurisdiction over the subject-matter of a case, but assumes jurisdiction of it and tries it; or where an inferior court has jurisdiction. over the subject-matter, but is bound to adopt certain rules in its proceedings, from which it deviates, whereby the proceedings were rendered coram non judice, trespass for false imprisonment is the proper remedy where the liberty of the citizen has been restrained by process of the court or by the execution of its judgment. Dynes v. Hoover, 20 How., 80.

§ 605. A party arrested upon an execution which is only voidable cannot sue for false imprisonment. Devlin v. Gibbs,* 4 Cr. C. C., 626.

§ 606. Malice and want of probable cause, when necessary to support action for.— In an action for false imprisonment the question of probable cause is only material in mitigation of damages. Norman v. Manciette,* 4 Am. L. T. (N. S.), 60.

§ 607. A justice is not liable for a false imprisonment under an illegal warrant issued by him, unless he acted maliciously. Neale v. Minifie,* 2 Cr. C. C., 16.

§ 608. To support an action for false arrest there must be malice and want of probable cause. Breckenridge v. Auld,* 4 Cr. C. C., 731.

§ 609. What constitutes probable cause.- Peeke forged Ebberts' note to himself and indorsed it to Johnson. Peeke was a nephew of Ebberts, and informed him that the note was

forged and that Johnson had a hand in it. Peeke was a young man of bad character, but, on his unverified statement as to the forgery, Ebberts had Johnson arrested for the purpose of ascertaining how he got the forged note. Held, that Ebberts had no good grounds of supposing Johnson guilty of the forgery; that he had no right to arrest him as an experiment for the purpose of finding out who committed a crime. Johnson v. Ebberts, 11 Fed. R., 129. § 610. Joint tort-feasors. In actions for assault, battery or false imprisonment all parties who are proven to have taken any part in the assault, battery or false imprisonment are principals and answerable for all acts done by themselves or by any others concerned in the transaction by their order, consent or procurement, or in pursuance or furtherance of an object or enterprise in which they have all engaged, and which is illegal. If two or more combine or agree to effect an unlawful purpose, each one of the party is answerable for all acts done in or leading towards the accomplishment of the joint object, directly connected with it, or naturally consequential. If the object and purpose is entered upon and commenced by the parties concerned, and other individuals or a crowd assemble in consequence and consummate the act or join in its execution, the original parties are responsible for their conduct, though the immediate actors may be unknown to them, or have no other concerted agreement or connection with them than by the unlawful acts committed, intended or tending to effectuate the original object and purpose. Johnson v. Tompkins, 1 Bald., 600.

$611. Affidavit valid on its face. There can be no recovery in an action for false imprisonment when it appears that the affidavit on which the defendant procures the arrest of the plaintiff is sufficient on its face, because then there is no trespass; and if the affidavit be false the action must be for malicious prosecution, in which both malice and want of probable cause must be alleged and proved. Norman v. Manciette,* 4 Am. L. T. (N. S.), 60.

§ 612. Arrest under requisition.- A person who acts as agent of a state in presenting the requisition to the governor performs a purely ministerial act, and the directions of the governor under whom he acts protects him from personal liability in a suit for false imprisonment. In re Titus, 8 Ben., 411.

§ 613. In the extradition of fugitives from the justice of a state under the laws of the United States, the governors of the states and their agents are obliged to rely upon such laws, and a compliance therewith is a complete justification to any charge for trespass or false imprisonment. Ibid.

§ 614. In an action for false imprisonment brought against the person presenting the requisition for the surrender of a fugitive from justice to the governor of a state, the allegation that the motives of the defendant were malicious is of no avail in fixing the liability of the defendant, so long as the acts were within the scope of the authority conferred upon him and justified by the laws of the United States. It matters not what feelings the defendant entertained towards the fugitive, nor what result he hoped would follow from the action taken by the governor of his state. Ibid.

615. Imprisonment of seamen on board ship.- Mere suspicion that a seaman is a bad man, having mutinous intentions and designs, will not justify the master of a vessel in imprisoning him, even though such suspicion is shared by the rest of the crew. Jay v. Almy,. 1 Woodb. & M., 262.

§ 616. Where the term of service of a marine in the United States navy expires in a foreign port, the commander of the vessel is the judge of the fact whether the term has expired or not; if he decide that it has not, and call upon the marine to perform duty, it is an act of punishable insubordination for the latter to refuse; if the commander thereupon imprison the marine, no action will lie against him for so doing, unless it be shown that the commander acted maliciously and vindictively. Dinsman v. Wilkes, 12 How., 390.

§ 617. Where a ship-master, by the advice of his mate, orders the imprisonment of a seaman, the latter cannot maintain an action for false imprisonment against the mate. Gardner v. Bibbins, Bl. & How., 356; S. P., Sheridan v. Furbur, Bl. & How., 423.

§ 618. Military arrests.-Contractors and their assignees and employees when in the course of the execution of their employment are subject to the rules of war, and are liable to arrest and imprisonment for fraud. But the officer making the arrest must use proper diligence, and give them a hearing before a military tribunal. Holmes v. Sheridan,* 1 Dill., 351,

§ 619. A subordinate officer is liable for his acts though he acts under authority, provided such acts are unlawful. Ibid.

§ 620. Crane was a provost-marshal of the United States, appointed under the act of March 3, 1863. Walker sued him for assault and battery and false imprisonment. Defense that Crane was not liable for his official acts. Held, that Crane had a right to order Walker off the premises occupied by him, and forcibly to expel him therefrom if he did not go. That a threat of interference with performance of duty by the provost-marshal would warrant the latter in arresting Walker and in detaining him, although the act of congress would not of itself bar Walker's action. Walker v. Crane,* 13 Blatch., 1.

§ 621. A person arrested by military force in Alaska, for the violation of section 20 or 21 of the Indian intercourse act of June 30, 1854 (4 Stat., 732), is not a military prisoner, subject to the articles of war, but a citizen charged with a non-military crime, and must be removed for trial by the civil authorities within five days from his arrest or discharge, and his detention thereafter, under any circumstances, is uniawful. If the officer in charge cannot within five days deliver the prisoner to civil custody it is his duty to discharge him. A person may be confined in a military prison, but he cannot be lawfully required to labor or perform any duty other than taking care of his person. Waters v. Campbell,* 5 Saw., 18.

622. When martial law a sufficient ground for public arrest.— The plaintiff, a resident of Pawtucket, Rhode Island, was aries ed by defendant, acting as captain under a commission from the governor of the state, and confined there for a short time and then removed to Providence, where he was imprisoned for several days, and then allowed to go home. Defendant pleaded statutes of limitations barring all actions for acts done while the state was under martial law, provided the acts committed were to preserve the peace of the state. The defendant arrested the plaintiff under orders of Major-Gen. Anthony, the commander-inchief of the military force of the state. The plaintiff commanded a military company, organized to support what was called the people's constitution, and had been present at an attack of his company upon the state arsenal. After the state government had been recognized by the president as the lawful government of the state, he took no steps against it, and even remonstrated against the demonstrations against it by others. Held, that if the general purpose of the defendant was to preserve peace and aid the existing government against suspected hostility, the jury ought to find this issue in his favor. If his intent was not what he stated in his plea to preserve the peace - but was to gratify passion or power, the jury should convict him, though it be of opinion that the charter government, whose soldier he was, was entirely to be approved. Despau v. Olney,* 1 Curt., 306.

§ 623. Defenses.- An act of congress would not furnish a defense to an action for an unlawful military arrest and trial where such act of congress is unconstitutional. Milligan v, Hovey, 3 Biss., 17.

§ 624. Ratification by the general government of an unlawful military arrest and imprisonment furnishes no defense to an action against the military officers guilty of the unlawful Ibid.

acts.

§ 625. In an action for damages for false arrest it was urged in defense that the affidavit upon which the warrant was issued did not authorize the issuing of such warrant under which plaintiff was arrested. Held, that such a defense was not good. Johnson v. Daws,* 5 Cr. C. C., 283.

§ 626. Judicial commitment is a defense to an action for false imprisonment. Ingram v. Butt, 4 Cr. C. C., 701.

§ 627. Miscellaneous.- An arrest is a trespass where it is made under an execution after the date on which it is returnable has passed. Stoyel v. Lawrence,* 3 Day (Ct.), 1.

§ 628. A., having been imprisoned in the common jail of the District of Columbia by order of the house of representatives of the United States congress for refusal to answer questions put to him as a witness concerning the business of a partnership of which he was a member, brought an action for false imprisonment against the sergeant-at-arms who executed the order for his arrest, and the members of the committee who caused him to be brought before the house, where he was convicted of contempt of its authority. Held, that the order of the house was void as being without authority, and furnished no protection or justification to the sergeant-at-arms; but that as to the members of the committee, the constitutional exemption from liability elsewhere for any vote, report or action in their respective houses was a good defense. Kilbourn v. Thompson, 13 Otto, 168.

The

§ 629. The plaintiff brought action against the defendants for false imprisonment. declaration contained four counts. Held, on demurrer, (1) that trespass was a proper form of action for false imprisonment; (2) that aggravation may be proved in trespass without averment; (3) that pleas in bar should confess and avoid or else traverse the declaration; (4) that traverse with confession was void. Stanton v. Seymour,* 5 McL., 267.

§ 630. The defendant, a judgment debtor, was discharged from imprisonment under chapter 216, General Statutes of Rhode Island, for the neglect of the plaintiff to pay his board, and because he was not committed on execution in pursuance of section 5, chapter 213. He was afterwards arrested by a deputy-sheriff upon an alias execution in an action upon the same judgment. Held, that the arrest was unlawful. Barnes v. Viall,* 6 Fed. R., 661.

§ 631. If a judgment debtor has been discharged for the non-payment of prison fees the debt is not released; but the plaintiff cannot lawfully arrest the debtor again upon an execution issued upon the same judgment; nor can he evade that consequence by arresting upon mesne process in an action on the judgment, but he may again imprison his debtor upon a second imprisonment. Ibid.

§ 632. The plaintiff and attorney are liable in trespass for the imprisonment of the defendant on an alias execution, and not the clerk, when there was nothing on the records of the court to instruct him that the plaintiff had been imprisoned for more than thirty days. Ibid.

§ 633. The arrest and imprisonment of the defendant was illegal. But the fact that the arrest was made through a mistake in the law goes very far in the reduction of damages. Ibid.

§ 634. An affidavit that a debtor "is about to leave the state of Oregon with intent to delay, hinder and defraud his creditors" is sufficient foundation for a warrant for his arrest. Norman v. Manciette,* 1 Saw., 484.

§ 635. Where the affidavit is sufficient on its face to justify the issuance of the warrant and the subsequent arrest, no action for false imprisonment will lie. If the affidavit is false the action should be against the affiant for malicious prosecution. Ibid.

§ 636. One day's admitted false imprisonment will not be taken as a reason for granting a second trial of an action for false imprisonment, where the first one has failed, for any reason, to give plaintiff a judgment. Ibid.

§ 637. A debtor who is about to remove from the state is an "absconding debtor" within the meaning of statutes authorizing the arrest of such persons by their creditors. Ibid.

§ 638. A creditor in Oregon has until the return of the execution against the property of his debtor to take out execution against the body, and, in the meantime, if the debtor has been arrested provisionally, he must remain in the custody of the sheriff, or his bail, or satisfy the judgment. Nor is a creditor liable for false imprisonment for neglecting to give directions for the debtor's discharge, when for any reason he has become entitled to it. The debtor is charged with the duty of procuring his own discharge, and if he remains in custody longer than necessary it is his own fault. Ibid.

IX. MALICIOUS PROSECUTION

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SUMMARY - Probable cause, § 639.— What necessary to support action, § 640.– Malice implied, § 641.— Questions for court and jury, § 642.— Measure of damages, §§ 643, 650.— Malice must be proved, § 644.— Proceedings in bankruptcy; probable cause, §§ 645, 646.— Advice of counsel, § 647.- Corporations, § 648.- Acts of military officers, §§ 649–654.— Mitigation of damages, § 652.

§ 639. Probable cause for arrest warrants the detention of a prisoner a reasonable time. Wheeler v. Nesbitt, § 655-658.

§ 640. To support an action for malicious criminal prosecution the plaintiff must prove the fact of prosecution, that the defendant was the prosecutor or instigated the prosecution, and an acquittal. He must also prove that the charge against him was unfounded, without probable cause and actuated by malice, and the burden of proof is upon the plaintiff. Ibid. § 641. Malice may be implied from want of any probable cause. Ibid.

§ 642. Probable cause is a question for the court; malice is for the jury. Stewart v. Sonneborn, $$ 659–665.

§ 643. In actions for malicious prosecution the fees of counsel in prosecuting the suit are not to be taken into account in estimating damages. Ibid.

§ 644. Malice must be proved to sustain action for malicious prosecution. Ibid.

§ 645. A., as a creditor, sued his alleged debtor, B., and upon the latter's transferring his property to his brother, A. had B. put in bankruptcy. Subsequently it was held that A. had no claim against B. Held, that in determining the existence of probable cause to put B. in bankruptcy, the decision that B. owed A. nothing could not be considered. Only the facts existing at the time B. was thrown into bankruptcy should have been considered; not facts determined subsequently thereto. Ibid.

§ 646. The fact that a creditor believed he had a bona fide debt against a man and good cause to put him in bankruptcy, coupled with advice of counsel to the same effect, is sufficient to disprove malice or want of probable cause. Ibid.

§ 647. In order to admit the deposition of an attorney tending to prove that he had advised a suit alleged to have been maliciously brought, it must appear that he advised the suit upon a deliberate examination of the facts of the case, and not upon statements of the pretended cause of action, and also that his advice was given prior to the commencement of the suit. Blunt v. Little, §§ 666-670.

§ 648. Corporations are liable for the torts of their agents acting within the scope of their employment, and may be sued for malicious prosecution. Copley v. Grover, etc., S. M. Co., $671.

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