the matter contained be true or falfe; and therefore the defendant, on an indictment for publishing a libel, is not allowed to allege the truth of it by way of justification". But in the remedy by action on the cafe, which is to repair the party in damages for the injury done him, the defendant may, as for words fpoken, juftify the truth of the facts, and fhew that the plaintiff has received no injury at all. What was faid with regard to words fpoken, will also hold in every particular with regard to libels by writing or printing, and the civil actions confequent thereupon: but as to figns or pictures, it seems neceffary always to fhew, by proper innuendo's and averments of the defendant's meaning, the import and application of the fcandal, and that fome special damage has followed; otherwise it cannot appear, that such libel by picture was understood to be levelled at the plaintiff, or that it was attended with any actionable confequences. A THIRD way of destroying or injuring a man's reputation is, by preferring malicious indictments or prosecutions against him; which, under the mask of justice and public fpirit, are sometimes made the engines of private spite and enmity. For this however the law has given a very adequate remedy in damages, either by an action of conspiracy, which cannot be brought but against two at the leaft; or, which is the more usual way, by a special action on the case for a false and malicious profecution". In order to carry on the former (which gives a recompenfe 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 profecutions for felony, it is ufual to deny a copy of the indictment, where there is any, the leaft, probable caufe to found fuch profecution upon. For it would be a very great difcouragement to the public justice of the kingdom, if profecutors, who had a tolerable ground of fufpicion, were liable to be fued at law whenever their indictments mifcarried. W 5 Rep. 125. x Hob. 253. 11 Mod. 99. y Finch. L. 305. z F. N. B. 116. a Carth, 421. Lord Raym. 253. But But an action on the cafe for a malicious profecution may be founded on fuch an indictment whereon no acquittal can be; as if it be rejected by the grand jury, or be coram non judice, or be infufficiently drawn. For it is not the danger of the plaintiff, but the scandal, vexation, and expenfe, 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 confider the violation of the right of personal liberty. This is effected by the injury of false imprisonment, 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 fubjecting the wrongdoer to a civil action, on account of the damage fuftained by the lofs of time and liberty. To conftitute the injury of falfe inprisonment there are two points requifite: 1. The detention of the person; and, 2. The unlawfulness of such detention. Every confinement of the perfon is an imprisonment, whether it be in a common prison, or in a private houfe, or in the ftocks, or even by forcibly detaining one in the public streets. Unlawful, or false, imprisonment confifts in fuch confinement or detention without sufficient authority: which authority may arife either from fome procefs from the courts of juftice; or from some warrant from a legal officer having power to commit, under his hand and feal, and expreffing the cause of such commitment; or from fome other special caufe warranted, for the neceffity of the thing, either by common law, or act of parliament; fuch as the arrefting of a felon by a private perfon without warrant, the impreffing of mariners for the public fervice, or the apprehending of waggoners for misbehaviour in the public highways. False imprisonment also may arife by executing a lawful warrant or procefs at an und Ibid. 46. b 10 Mod. 219, 220. Stra. 691. c 2 Inft. 589. e Stat. 7 Geo. III. c. 42. · lawful lawful time, as on a funday; or in a place privileged from arrefts, as in the verge of the king's court. This is the injury. Let us next fee the remedy: which is of two forts; 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. 3. By writ de homine replegiando. 4. By writ of habeas corpus. I. 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 refufed; or fpecially, when the offence or caufe of commitment is not properly bailable below) commanding him to take fureties for the prisoner's appearance, usually called mainpernors, and to set. him at large. Mainpernors differ from bail, in that a man's bail may imprison or furrender him up before the ftipulated day of appearance; mainpernors can do neither, but are barely fureties for his appearance at the day: bail are only fureties, that the party be anfwerable for the special matter for which they ftipulate; mainpernors are bound to produce him to answer all charges whatsoever ". 2. THE writ de odio et atia was antiently used to be direeted to the sheriff, commanding him to inquire whether a prifoner charged with murder was committed upon just cause of fufpicion, or merely propter odium et atiam, for hatred and ill-will; and if upon the inquifition due cause of suspicion did not appear, then there iffued another writ for the sheriff to admit him to bail. This writ, according to Bracton, 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 Westm. 2. 13 Edw. I. c. 29. But the statute f Stat. 29 Car. II. c. 7. g F. N. B. 250. 1 Hal. P. C. 141. Coke on bail and mainpr. ch. 10. h Co. ibid. ch. 3. 4 Inft. 179. of of Glocefter, 6 Edw. I. c. 9. restrained it in the cafe of killing by mifadventure or self-defence, and the statute 28 Edw. III. c. 9. abolished it in all cafes whatsoever; but as the statute 42 Edw. III. c. 1. repealed all statutes then in being, contrary to the great charter, fir Edward Coke is of opinion that the writ de odio et atia was thereby revived. 3. THE writ de homine replegiando' lies to replevy a man out of prison, or out of the custody of any private person, (in the fame manner that chattels taken in diftrefs may be replevied, of which in the next chapter) upon giving fecurity to the sheriff that the man fhall be forthcoming to answer any charge against him. And, if the perfon be conveyed out of the sheriff's jurisdiction, the sheriff may return that he is eloigned, elongatus; upon which a process iffues (called a capias in withernam) to imprison the defendant himself, without bail or mainprize", till he produces the party. But this writ is guarded with so many exceptions", that it is not an effectual remedy in numerous inftances, efpecially where the crown is concerned. The incapacity therefore of these three remedies to give complete relief in every cafe hath almost entirely antiquated them, and hath caused a general recourse to be had, in behalf of perfons 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 prifoners from one court into another for the more easy administration of juftice. Such is the habeas corpus ad refpondendum, when a man hath a cause of action against one who is confined by the process of fome inferior court; in order to remove the prifoner, and charge him with this new action in the court above. Such is that ad fatisfaciendum, when a prisoner hath had judgment against him in an action, and the plaintiff is defirous to bring him up to some superior court to charge him with process of execution P. Such also are those ad profequendum, teftificandum, deliberandum, &c; which iffue when it is neceffary to remove a prisoner, in order to profecute or bear teftimony in any court, or to be tried in the proper jurif. diction wherein the fact was committed. Such is, lastly, the common writ ad faciendum et recipiendum, which iffues out of any of the courts of Westminster-hall, when a person is fued in fome inferior jurisdiction, and is defirous to remove the action into the superior court; commanding the inferior judges to produce the body of the defendant, together with the day and caufe of his caption and detainer (whence the writ is frequently denominated an habeas corpus cum caufa) to do and receive whatsoever the king's court fhall confider in that behalf. This is a writ grantable of common right, without any motion in court; and it instantly superfedes all proceedings in the court below. But, in order to prevent the furreptitious discharge of prisoners, it is ordered by ftatute 1 & 2 P. & M. c. 13. that no habeas corpus shall iffue 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 iffue or demurrer deliberately joined: that no caufe, 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 fum of five pounds. But an expedient having been found out to elude the latter branch of the ftatute, by procuring a nominal plaintiff to bring another action for five pounds or upwards, (and then by the course of the • 2 Med. 198. P 2 Lilly prac, reg. 4. q 2 Mod. 306. court |