The rule that the action

the killing of their servants.1 dies with the death of either party permits, however, an action by the master for damages between the time of the injury of the servant and his death, where death was not immediate.2

1 Osborn v. Gillett, L. R. 8 Ex. 88, Bramwell, B. dissenting strongly. See also Pollock, Torts, 57, 58, 2d ed.

2 Baker v. Bolton, 1 Camp. 493; Osborn v. Gillett, L. R. 8 Ex. 88, 90, 98; Sullivan v. Union Pacific R. Co., 1 Cent. L. J. 595. See also Insurance Co. v. Brame, 95 U. S. 754; 2 Southern Law Rev. N. s. 186.

CHAPTER VII.

FALSE IMPRISONMENT.

§ 1. INTRODUCTORY.

Statement of the duty. A owes to B the duty to forbear to impose a total restraint upon B's freedom of locomotion.

1. The terms 'writ,' warrant,' 'precept,' and 'process,' are, in this chapter, used as equivalents, wherever it is not necessary to distinguish them.

2. The term 'irregular,' as applied to a writ, refers to some improper practice on the part of the person who obtains the writ, as distinguished from 'error,' in decision.1 A writ is sometimes absolutely void for irregularity, and sometimes only voidable.

2

3. By comparatively recent statutes, arrest in civil suits has been prohibited, except in a few special cases, so that the particular facts of many of the older authorities no longer appear; but the principles upon which they rested have not been changed.

§ 2. OF THE NATURE OF THE RESTRAINT.

A false imprisonment consists in the total, or substantially total, restraint of a man's freedom of locomotion. without authority of law, and against his will. Such an

1 See Everett v. Henderson, 146 Mass. 89; Cases, 232.

4

2 As a writ in execution of a judgment which has been discharged to the knowledge of the person suing out the same. Deyo v. Van Valken. burgh, 5 Hill, 242.

3 See e. g. Mass. Pub. Stats. c. 162, §§ 1—3.

4 Bird v. Jones, 7 Q. B. 742, 752.

act may be committed not only by placing a man within prison walls, but also by restraint imposed upon him in his own house or room, or in the highway, or even in an open field.1

Any general restraint is sufficient to constitute an imprisonment; and though this be effected without actual contact of the person, it will be actionable if unlawful. Any demonstration of physical power which, to all appearance, can be avoided only by submission, operates as effectually to constitute an imprisonment, if submitted to, as if any amount of force had been exercised. For example: The defendant, an officer, says to the plaintiff, 'I want you to go along with me,' with a show of authority, or of determination to compel the plaintiff to go. This is an imprisonment, though the defendant do not touch the plaintiff.2

A person may also be imprisoned, though he had not the full power of locomotion before the restraint was imposed. It appears to be sufficient if his will has been so overcome that he would not attempt to escape the restraint if he had the physical ability of locomotion. For example: The defendant, a creditor of the plaintiff, goes with an officer to the plaintiff's house, in order to compel him to give security for or make payment of his debt, which is not due. The plaintiff is found sick in bed; whereupon the officer tells him that they have not come to take him, but to get a certain article of property belonging to the plaintiff, though, if he will not deliver that or give security, they must take him or leave some one in charge of him. The plaintiff, much alarmed, gives up the article. This is an imprisonment. 8

1 Lib. Ass. (22 Edw. III.), p. 104, pl. 85.

2 Brushaber v. Stegemann, 22 Mich. 266, 268. See Hill v. Taylor, 50 Mich. 549.

8 Grainger v. Hill, 4 Bing. N. C. 212; Cases, 67.

The submission, therefore, to the threatened and reasonably apprehended use of force is not to be considered as a consent to the restraint, within a maxim which has frequent application in the law of torts, ' volenti non fit injuria.' And the imprisonment continues until the party is allowed to depart, and is involuntary until all general restraint ceases, and the means of effecting it are removed.1

It is not enough that restraint is imposed upon one's freedom of proceeding in a particular desired direction. The detention must be such as to cause escape in any direction to amount to a breach of the restraint; the restraint should be circumscribing, except, perhaps, where the only place of escape is an almost impassable one. For example: The defendant, an officer, stationed at a particular point to prevent persons from passing in a certain direction, restrains the plaintiff from passing that way, but leaves another way open to him, of which, however, he does not wish to avail himself; and, thus detained, the plaintiff stands there for some time. This is not an imprisonment.2

It follows from the last proposition, and from what had been stated before, that a person detained within walls is none the less imprisoned by reason of the fact that he may make an escape through an unfastened window or door; since such an act would be a breach of the restraint. If it would not be, there is no imprison

1 Johnson v. Tompkins, Baldw. 571, 602.

2 Bird v. Jones, 7 Q. B. 742. 'A prison may have its boundary large or narrow, invisible or tangible, actual or real, or indeed in conception only; it may in itself be movable or fixed; but a boundary it must have, and from that boundary the party imprisoned must be prevented from escaping; he must be prevented from leaving that place within the limit of which the party imprisoned could be confined.' Id. Coleridge, J. Cases, 207, 208.

ment; supposing that the unfastened door or window affords a ready means of escape.

3. OF ARRESTS WITH WARRANT.

Supposing the restraint imposed to amount to an imprisonment, it is to be noticed that the imprisonment must be a false one, that is, it must be an illegal restraint of freedom, in order to constitute it a breach of duty. Under what circumstances, then, is an imprisonment illegal? It would be impracticable to answer this in the way of any general rule, and quite as much so in this place to set down all the cases of the books. The most common and important case of justification, rendering lawful, that is to say, what otherwise would be unlawful, is where an officer has made an arrest under a lawful warrant of a court of justice. This case will be taken for special consideration.

It is to be observed at the outset that the officer, in executing his process, must arrest the person named in it. If he do not, though the arrest of the wrong person was made through mere mistake, it may be a case of false imprisonment. And this appears to be true, though the party arrested bear the same name as the party against whom the writ is directed. For example: The defendant, a constable, asks the plaintiff if his name is J. D., to which the plaintiff replies in the affirmative; whereupon the defendant takes the plaintiff into custody, the plaintiff not being the person intended by the writ. This is a case of false imprisonment.2

If, however, the plaintiff, though not the person in

1 See observation 3, p. 165, of arrests in civil suits.

2 Coote v. Lighworth, F. Moore, 457. It is to be noticed that the plaintiff in this case did nothing to induce the officer to arrest him as the person intended.