Commentaries on the Laws of England

mask of justice and public spirit, are sometimes made the engines of private spite and enmity. For this however the law has given a very adeGilb. C. L. & E. 202. 2 B. & A. 494.3 Dow. shewn to a plaintiff who maliciously arrests & R. 669.

another, than to the prosecutor of an indicho 3dly. To the Property by Expenses.-Injuryment. In order to sustain such action, four to property by expense is sufficient ground for points must occur, viz. supporting an action. Jones v. Gwynne, Gilb. Ist. Falsehood in the demand. L. & E. 185. 202.

2d. Want of probable cause. As prosecutions must be carried on for the 3d. Malice in the defendant. benefit of the public, and no one would be in. 4th. Damage by arrest or imprisonment. duced to pursue an offender for a criminal Ist. Falsehood in the Demand.--Ist. With charge, if he were liable to an action, on an regard to the falsehood in the demand, the acquittal, the courts in general discharge ac- rules applicable to a criminal proceeding, tions for malicious prosecutions, unless the equally affect a civil suit. | Salk. 1516. 2 malice of the prosecutor, as well as the inno. T. R. 225. 1 Esp. Rep. 79. 14 East, 302. cence of the party accused, be obvious; and Selw. 106. 2. If ihere be a set off reducing in case of iudictments for felonies they will the plaintiff's demand, his maliciously insertnot afford the defendant a copy of the indict. ing only one side of the account is actionable. ment, without which a civil action cannot be 3 B. & C. 139. The suit must have been de. supported, unless in the opinion of the court cided by some legal means, before an action the prosecution appeared to be malicious. l for a malicious action can be commenced. I T. R. 518. Carth. 421. I Ld. Raym. 253. Esp. R. 80. Ante, 1 book, 385. 14 East, 302. 305.

2dly. Want of probable cause also, as in But in an action for a malicious prosecution criminal proceedings, is necessary, and the for a misdemeanor, the party need not produce same rules prevail with regard to it. And a copy of the indictment. Bla. Rep. 385. though in point of fact an action may turn out

The remedy for a malicious prosecution of to be unfounded, yet if there were reasonable regular proceedings, is invariably an action on ground to apprehend that the sum for which the case, and trespass cannot be sustained, the party was arrested was due, no action can Hob. 266. So if a magistrate issue a warrant be supported, 3 Esp. R. 34. Where A. arwithout information on oath, when the action rested B. upon the advice of his special plead. cannot be trespass, 2 T. R. 255. and the proper er, that he had a good cause of action, but af. plea is the general issue, 3 Mod. 166; and terwards discontinued on being ruled to de. every matter of defence may be given in evi- clare, and B. brought an action for a malicious dence, under such plea, though it is otherwise arrest, without any reasonable or probable in an action for words. Willes, 20.

cause, it was held, that the reasonableness or Malicious proceedings of a civil nature are probability of the cause was a mixed question by malicious arrest, issuing a commission of of law and fact for the jury to decide : and bankruptcy, &c. It seems before the statutes that, if they believed the defendant acted bona entitling the defendant in civil actions to costs, fide upon the advice he had received, he was if the suit terminated in his favour, he might entitled to a verdict, but if otherwise, they support an action against the plaintiff, if the ought to find for the plaintiff. 2 B. & C. 693. proceeding was malicious and without probable 4 Dow. & R. 107. i Carr. 204. cause. Co. Litt. 161. n. 4. a. b. c. 162." (a.) 3 3dly. Malice in the Defendant.--Malice also Lev. 210. 2 Wils. 305. Styles, 379. Hob. is an essential requisite to the support of this 266. 4 Mod. 13, 4. But since the statute, 4 action, and it is not sufficient to prove that the Ja. I. c. 3. which gives costs to a defendant in writ was sued out, or the arrest made, after all actions in case of a nonsuit or verdict the payment of the debt, but express malice against the plaintiff, and other statutes giving must in such case be proved, 1 Bos. & P. costs to defendant in other stages of the cause, 388. 2 B. & P. 129. 3 East, 314; and in a it seems that no action can be supported mere. late case, where a writ was issued by mistake ly in respect of a civil suit maliciously institut- against the son instead of the father, and he ed, except in some cases rinder particular le- was imprisoned four days, Ch. J. Abbott held, gislative provisions, 1 Salk. 14. and therefore that as there was no evidence of malice the no action is sustainable for a vexatious eject. action was not sustainable. Guildhall, Oct. ment. 1 B. & P. 205. But when the plaintiff 1825. In ordinary cases, however, want of in a civil action has maliciously adopted a probable cause being proved, malice (as in step not absolutely necessary for the ascer- criminal prosecutions) may be implied ; ante, tainment of his right, as in the case of an un. page 42. n. (a.) 1 T. R. 545. 518. 9 East, founded arrest, or an arrest for two large a sum, 361. i Campb. C. N. P. 202. 4. 3oCamp. 139. 1 Lev, 275. or on one side of an account. 3 The merely not proceeding with an action is B. & C. 139. (in any of which cases he might not sufficient evidence of malice, 4 Taumt. 7; have proceeded in common process), the party or neglecting to countermand the writ after injured by such arrest may support an action. the debt has been paid, by which plaintiff was 2 Wils. 305. As it is necessary the avenues arrested, 1 Bos. & Pul. 388, especially if the of justice should not be narrowed, the courts facts preclude any interference of malice. 2 do not encourage actions for malicious suits, 2 Boz. & Pul. 129. But where A. arrested B. Wils. 307 ; but as a civil suit is not like a cri- on an affidavit of debt for money paid to his minal prosecution, carried on for the benefit of use, but did not declare until ruled so to do, the public, less favour and indulgence is to be and soon afterwards discontinued the action

quate remedy in damages, either by an action of conspiracy (y), which cannot be brought but against two at the least; or, which is the more usual way, by a special action on the case for a false and malicious prosecution (2). In order to carry on the former (which gives a recompense for the danger to which the party has been exposed) it is necessary that the plaintiff should obtain a copy of the record of his indictment and acquittal; but, in prosecutions for felony, it is usual to deny a copy of the indictment, where there is any, the least, probable cause to found such prosecution upon (a). For it would be a very great discouragement to the public justice of the kingdom, if prosecutors, who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried. *But an action on the case for a mali- [*127] cious prosecution may be founded upon an indictment, whereon no acquittal can be had; as if it be rejected by the grand jury, or be coram non judice, or be insufficiently drawn. For it is not the danger of the plaintiff

, but the scandal, vexation, and expense, upon which this action is founded (b). However, any probable cause for preferring it is sufficient to justify the defendant.

II. We are next to consider the violation of the right of personal liberty. This is effected by the injury of false imprisonment (15), for which the law has not only decreed a punishment, as a heinous public crime, but has also given a private reparation to the party; as well by removing the actual confinement for the present, as, after it is over, by subjecting the wrong(y) Finch. L. 305.

(a) Carth. 421. Lord. Raym. 253. (7) F. N. B. 116.

(6) 10 Mod. 219, 220. Stra. 691. and paid the costs, held that this was sufficient plaintiff is bound to accept from a defendant in prima facie evidence of malice, and the absence custody under a ca. sa., the debt and costs, of probable cause to support an action for a when tendered, in satisfaction of his debt, malicious arrest. 4 B. & C. 21.

and to sign an authority to the sheriff to dis. 4thly. With respect to the damage necessary charge the defendant out of custody, and an to the support of this action, it has already action on the case will lie against a plaintiff been observed, that as a defendant is entitled for having maliciously resused so to do. And to costs, his pecuniary interest is not, in legal the refusal to sign the discharge is sufficient consideration, affected by a civil action, though prima facie evidence of malice, in the absence indeed the costs allowed are rarely equal to of circumstances to rebut the presuinption. 4 the expenditure incurred by a defence. His B. & C. 26. character also, a3 we have already seen, is not (15) But the merely giving charge of a peraffected, and the imprisonment of his person is son to a peace-officer, not followed by any actherefore the only legal damage which entitles tual apprehension of the person, does not him to compensation. But in some instances amount to an imprisonment, though the party the court have power to interfere in a summa- to avoid it attend at a police office, 1 Esp. ry way to compel the plaintiff to make compen. Rep. 431. 2 New. Rep. 211; and in Gardner sation. 3 Bos. & P. 115. Co. Litt. 161. b. in v. Wedd, and others, Easter Term 1825, on a notes.

motion for a new trial, the court of common By a late statute, 43 Geo. III. c. 46. s. 3. 3 pleas held that the lifting up a person in his B. & P. 115. if the plaintiff in an action do chair, and carrying him oui of the room, in not recover the amount of the sum for which which he was sitting with others, and exclud. he arrested the defendant, though he obtain a ing him from the room, was not a false impriverdict, the defendant is entitled to his costs, sonment, so as to entitle the plaintiff to a verif it appear to the satisfaction of the court upon dict on a count for false imprisonment. The a summary application, supported by affidavit, circumstance of an imprisonment being comthat plaintiff had not reasonable cause for ob- mitted under a mistake constitutes no excuse. taining the defendant to be arrested for the 3 Wils. 309. And it has been decided, that if whole amount. An action on the case may A. tell an officer who has a warrant against B., also be supported for maliciously issuing a that his (A.'s) name is B., and thereupon the commission of bankruptcy, notwithstanding officer arrests A., it is false imprisonment, the specific remedy provided by the bankrupt Moore, 457. Hard. 323 ; but see 3 Camp. laws. I book, ante, 427. Willes, 581. 2 108; and this doctrine was overruled in a laie Wils. 146.

3 Campb. 58. So also if the case on the western circuit, on the principle plaintiff in an action adopt an irregular pro- volenti non fit injuriam, and that such a fraud ceeding, as issuing a second fi. fa. pending upon legal proceedings cannot give a right of the first, Hob. 205. 266. 1 Browl. 12. So à action. Vol. II.

doer to a civil action, on account of the damage sustained by the loss of time and liberty.

To constitute 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 (c). Unlawful, or false, imprisonment consists in such confinement or detention without sufficent 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 (d); or from some other special cause warranted, for the necessity of the thing, either by common law, or act of parliament; such as the arresting of a felon by a private person without warrant, the impressing of mariners for the public service, or the apprehending of wag. goners for misbehaviour in the public highways (e). False imprisonment

also may arise by executing a lawful warrant or process at an [*128] *unlawful time, as on a Sunday (f); for the statute hath de

clared, that such service or process shall be void (16). This is the injury. Let us next see the remedy: which is of two sorts; the one removing the injury, the other making satisfaction for it.

The means of removing the actual injury of false imprisonment are fourfold. 1. By writ of mainprize._2. By writ de odio et atia (17). 3. By writ de homine replegiando. 4. By writ of habeas corpus.

1. The writ of mainprize, manucaptio, is a writ directed to the sheriff, (either generally, when any man is imprisoned for a bailable offence, and bail hath been refused; or specially, when the offence or cause of commitment is not properly bailable below), commanding him to take sureties for the prisoner's appearance, usually called mainpernors, and to set him at large (g). Mainpernors differ from bail, in that a man's bail may imprison or surrender him up before the stipulated day of appearance ; mainpernors can do . neither, but are barely sureties for his appearance at the day: bail are only sureties, that the party be answerable for the special matter for which they stipulate ; mainpernors are bound to produce him to answer all charges whatsoever (h).

2. The writ de odio et atia was anciently used to be directed to the sheriff, commanding him to inquire whether a prisoner charged with murder was committed upon just cause of suspicion, or merely propter odium et atiam, for hatred and ill-will; and if upon the inquisition due cause of suspicion did not appear, then there issued another writ for the sheriff to admit him to bail. This writ, according to Bracton (i), ought not to be denied to any man, it being expressly ordered to be made out gratis, without any

denial, by magna carta, c. 26. and statute West. 2. 13 Edw. I. c. [*129] 29. But the statute *of Gloucester, 6 Edw. I. c. 9. restrained it in the case of killing by misadventure or self-defence, and the

(g) F. N. B. 250. 1 Hal. P. C. 141. Coke on bail and mainp. ch. 10.

(h) Coke on bail and mainp. ch. 3. 4 Inst. 197.

(6) 1. 3, tr. 2, c. 8. (16) But the statute has excepted cases of thing is now known in practice, their use and treason, felony, and breach of ibe peace, in application being entirely superseded by sumwhich the execution of a lawful warrant or mary resort to magistrates, or upon their reprocess is allowed upon a Sunday.

fusal, to a judge of the Court, as the case may (17) Of the two first mentioned writs no- require.

statute 28 Edw. III. c. 9. abolished it in all cases whatsoever : but as the statute 42 Edw. III. c. 1. repealed all statutes then in being, contrary to the great charter, sir Edward Coke is of opinion (k) that the writ de odio et atia was thereby revived.

3. The writ de homine replegiando (1) (18) lies to replevy a man out of prison, or out of the custody of any private person in the same manner that chattels taken in distress may be replevied, of which in the next chapter), upon giving security to the sheriff that the man shall be forthcoming to answer any charge against him. And if the person be conveyed out of the sheriff's jurisdiction, the sheriff may return that he is eloigned, elongatus ; upon which a process issues (called a capias in withernam) to imprison the defendant himself, without bail or mainprize (m), till he produces the party. But this writ is guarded with so many exceptions (n), that it is not an effectual remedy in numerous instances, especially where the crown is concerned. The incapacity therefore of these three remedies to give complete relief in every case hath almost entirely antiquated them; and hath caused a general recourse to be had, in behalf of persons aggrieved by illegal imprisonment, to

4. The writ of habeas corpus, the most celebrated writ in the English law. Of this there are various kinds made use of by the courts at Westminster, for removing prisoners from one court into another for the more easy administration of justice. Such is the habeas corpus ad respondendum, when a man hath a cause of action against one who is confined by the process of some inferior court; in order to remove the prisoner, and charge him with this new action in the court above (6). Such is that ad satisfaciendum, when a prisoner hath had judgment against him (*130] in an action, and the plaintiff is desirous to bring him up to some superior court to charge him with process of execution (p). Such also are those ad prosequendum, testificandum, deliberanduin, fc.; which issue when it is necessary to remove a prisoner, in order to prosecute or bear testimony in any court, or to be tried in the proper jurisdiction wherein the fact was committed (19). Such is, lastly, the common writ ad faciendum et recipiendum, which issues out of any of the courts of Westminster-hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the superior court ; commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer (whence the writ is frequently denominated an habeas corpus cum causa) to do and receive whatsoever the king's court shall consider in that behalf. This is a writ grantable of common right, without any motion in court (9), and it instantly supersedes all proceedings in the court below. But in order to prevent the surreptitious discharge of prisoners, it is ordered by statute 1 & 2 P. & M. c. 13. that no habeas cor(k) 2 Inst. 43. 65. 315.

retto, quare secundum consuetudinem Angliae non (1) F. N. B. 66.

sit replegiabilis. (Registr. 77.) (m) Raym. 474.

(*) Nisi captus est per speciale preceplum nos. (d) 2 Lilly prac. reg. 4. trum, vel capitalis justitiarii nostri, vel pro morte (9) 2 Mod. 306. hominis, vel pro foresta nostra, vel

pro aliquo alio (18) In New-York this writ is allowed to (19) By 44 Geo. III. c. 102. any of the judg. any one who is claimed by another as a fugi- es of England or Ireland may award a writ of tive from another state, and bound to serve habeas corpus ad testificandum to bring a prisuch other; although the person claiming the soner detained in any gaol to be examined as benefit of this writ may have been previously a witness in any court of record, or sitting at delivered over to his master on a habeas corpus. nisi prius. 2 R. S. 561, $ 15.

(0) 2 Mod. 198.

pus shall issue to remove any prisoner out of any gaol, unless signed by some judge of the court out of which it is awarded. And to avoid vexatious delays by removal of frivolous causes, it is enacted by statute 21 Jac. I. c. 23. that, where the judge of an inferior court of record is a barrister of three years' standing, no cause shall be removed from thence by habeas corpus or other writ, after issue or demurrer deliberately joined: that no cause, if once remanded to the inferior court by writ of procedendo or otherwise, shall ever afterwards be again removed ; and that no cause shall be removed at all, if the debt or damages laid in the declaration do not amount to the sum of five pounds. But an expedient (r) having been found out to elude the latter branch of the statute, by procuring a nominal plaintiff to bring another action for five pounds or upwards, (and then by the course of

the court, the habeas corpus removed both actions together), it is (*131] therefore enacted by statute 12 Geo. I. c. 29. that the inferior *court

may proceed in such actions as are under the value of five pounds, notwithstanding other actions may be brought against the same defendant to a greater amount. And by statute 19 Geo. III. c. 70. no cause, under the value of ten pounds (20), shall be removed by habeas corpus, or otherwise, into any superior court, unless the defendant so removing the same, shall give special bail for payment of the debt and costs (21).

But the great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf (s) (22). This is a high prerogative writ, and therefore by the common law issuing out of the court of king's bench not only in term-time, but also during the vacation (1), by a fiat from the chief justice or any other of the judges, and running into all parts of the king's dominions ; for the king is at all times entitled to have an account, why the liberty of any of his subjects is restrained (u), wherever that restraint may be inflicted. If it issues in vacation, it is usually returnable before the judge himself who awarded it, and he proceeds by himself thereon (v); unless the term shall intervene, and then it returned in court(w). Indeed if the party were privileged in the courts of common pleas and exchequer, as being (or supposed to be) an officer or suitor of the court, an habeas corpus ad subjiciendum might also by common (r) Bohun. instit. legal. 85, edit. 1709.

Saturday. The Thursday after was therefore the

30th of November, two days after the expiration (1) The pluries habeas corpus directed to Berwick prox' post quinden' Sancti Martini. It appears by referring to the dominical letter of that year, that (w) Ibid. 460. 542. 606. this quindena (Nov. 25.) happened that year on a

may be

(s) St. Trials, vüi. 142.

in 43 Eliz. (cited 4 Burr. 856.) was teste'd die Jovis

of the term.

(u) Cro. Jac. 513.
(v) 4 Burr. 856.

(20) By statute 57 Geo. III. c. 124, extend- real estate comes in question : and actions of ed to 151. and by statnte 7 & 8 Geo. IV. c. 7), replevin and of false imprisonment. 2 R. S. $ 6, extended to 201.

389, g 1, 4, 14. (21) Causes are removable from the com- (22) In New-York this writ may be granted mon pleas court to the supreme court by cer. by the chancellor, or any of the judges of the tiorari, whenever the matter in dispute exceeds Supreme Court, or any officer authorized to 250 dollars, but in the city of New York where perform the duties of such judge at chambers, it exceeds 500 dollars; and in the following and residing in the county where the prisoner cases they may be removed, whatever the is detained : or if these cannot or will not act, amount may be, viz. in actions in which the then to a similar officer in an adjoining coun state is interested, or which are brought by or ty: it may also be granted by the Supremo against any city : actions in which the title to Court in term time (2 R. S. 563).

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Commentaries on the Laws of England: In Four Books : with an ..., Nide 2