cruelty to animals, shall prosecute violations of the preceding sections of this chapter which come to their notice or knowledge." The complaint was made by William W. Tower, who described himself therein as "officer or agent of the Society for the Prevention of Cruelty to Animals within and for the county of Rutland," and signed it "William W. Tower, Agent," and thereupon the justice issued the warrant. It could not be maintained, and it is not insisted, that Tower had authority under the statute to make the complaint as agent; therefore we are not called upon to decide whether a legally organized society of this kind might confer authority upon a certain officer to make complaint for a violation of this statute. That question does not arise. . . 2. It is contended in defendant Hastings' behalf that he did not restrain the plaintiff of his liberty. The trial Court found that, having the complaint and warrant signed, respectively, by the other two defendants, he met the plaintiff, and stopped him by speaking to him as he was driving along on a business errand, read the paper to him, and told him he would have to go with him (Hastings); that the plaintiff told the officer that he would have to get some one to take his team; that the officer permitted him to do his errand, but directed him to return as soon as he could; that the plaintiff then drove along; that Hastings became impatient, and went to meet him, turned in behind the plaintiff's team, and followed him to the village; that he went to the place of trial with the plaintiff, delivered the paper to the justice, and informed him that the plaintiff was present; that this was all that Hastings did besides making his return upon the warrant; that he understood that the plaintiff was in his custody. The action of the officer constituted a false imprisonment of the plaintiff. It was not necessary that he should lay his hands on him. It was sufficient that the plaintiff was within his power and submitted to the arrest. Mowry et al. v. Chase, 100 Mass. 79. Every restraint upon a man's liberty is, in the eye of the law, an imprisonment, wherever may be the place, or whatever may be the manner in which the restraint is effected. 2 Kent's Comm. 26. And see Pike v. Hanson, 9 N. H. 491, cited in the notes, where it was held that words may constitute an imprisonment, if they impose a restraint upon a person, and he is accordingly restrained and submits. The law is so well settled upon this subject that it is hardly necessary to cite authorities, but the notes in Bissell v. Gold, 1 Wend. 210, 19 Am. Dec. 480, are interesting, and clearly elucidate the rule that, to constitute an arrest, there must be some real or pretended legal authority for taking the party into custody; that he must be restrained of his liberty; that, if he submits, and is within the power of the officer, it is sufficient without an actual touching of his person. This is the rule laid down by Savage, C. J., in the main case, and it has not been departed from in recent authorities. . . . 1 [PROBLEMS: Judgment affirmed.1 The plaintiff was assessed for taxes, which she deemed illegal. The collector, being in a room with her, demanded payment, which she declined, until ar SUB-TITLE (V): LOSS OF LIFE (DEATH) Topic 1. Death, as creating a Cause of Action . 61. SIR WILLIAM BLACKSTONE. Commentaries on the Laws of England (1765. Book III, p. 119; Book IV, p. 312). I. As to injuries which affect the personal security of individuals, they are either injuries against their lives, their limbs, their bodies, their health, or their reputations. 1. With regard to the first subdivision, or injuries affecting the life of man, they do not fall under our present contemplation; being one of the most atrocious species of crimes, the subject of the next book of our commentaries. . . . [Book IV] An appeal, in the sense wherein it is here used, does not signify any complaint to a superior court of an injustice done by an inferior one which is the general use of the word; but it here means an original suit, at the time of its first commencement.1 An appeal therefore, when spoken of as a criminal prosecution, denotes an accusation by a private subject against another, for some heinous crime; demanding punishment on account of the particular injury suffered, rather than for the offence against the public. ... This private process, for the punishment of public crimes, had probably its original in those times when a private pecuniary satisfaction, called a weregild, was constantly paid to the party injured, or his relations, to expiate enormous offences. This was a custom derived to us, in common with other northern nations, 2 from our ancestors, the ancient Germans; . . . And thus we find in our Saxon laws (particularly those of king Athelstan 3) the several weregilds for homicide established in progressive order from the death of the ceorl or peasant, up to that of the king himself. And in the laws of king Henry I3 we have an account of what other offences were then redeemable by weregild, and what were not so. As therefore during the continuance of this custom, a process was cer 5 1 It is derived from the French, "appeller," the verb active, which signifies to call upon, summon, or challenge one; and not the verb neuter, which signifies the same as the ordinary sense of "appeal" English. 2 Stiernh. de jure Sueon. 1. 3, c. 4. Judic. Civit. Lund., Wilkins, 71. The weregild of a ceorl was 266 thrysmas, that of the king 30,000; each thrysma being equal to about a shilling of our present money. The weregild of a subject was paid entirely to the relations of the party slain; but that of the king was divided; one half being paid to the public, the other to the royal family. 5 c. 12. In Turkey this principle is still carried so far, that even murder is never prosecuted by the officers of the government, as with us. It is the business of the next relations, and them only, to revenge the slaughter of their kinsmen; and if they rather choose (as they generally do) to compound the matter for money, nothing more is said about it. (Lady M. W. Montague, lett. 42.) rested. He then told her that he arrested her, but he did not lay his hand on her. She then paid the tax. Has she an action for false arrest? (1838, Pike v. Hanson, 9 N. H. 491.)] CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS RIGHT: A. J. Willard, "Principles of the Law: Personal Rights," c. XXVIII, pp. 277-280. Herbert Spencer, "Justice," c. X, The Rights to Free Motion and Locomotion." tainly given, for recovering the weregild by the party to whom it was due; it seems that, when these offences by degrees grew no longer redeemable, the private process was still continued, in order to insure the infliction of punishment upon the offender, though the party injured was allowed no pecuniary compensation for the offence. . . . An appeal of felony may be brought for crimes committed either against the parties themselves, or their relations. . . . The only crime against one's relation, for which an appeal can be brought, is that of killing him, by either murder or manslaughter. But this cannot be brought by every relation: but only by the wife for the death of her husband, or by the heir male for the death of his ancestor; which heirship was also confirmed, by an ordinance of king Henry the First, to the four nearest degrees of blood. . . . And, by the statute of Gloucester, 6 Edw. I, c. 9, all appeals of death must be sued within a year and a day after the completion of the felony by the death of the party: which seems to be only declaratory of the old common law: for in the Gothic constitutions we find the same praescriptio annalis, quae currit adversus actorem, si de homicida ei non constet intra annum a caede facta, nec quenquam interea arguat et accuset." ? These appeals may be brought previous to any indictment: and if the appellee be acquitted thereon, he cannot be afterwards indicted for the same offence. . . . If the appellee be found guilty he shall suffer the same judgment, as if he had been convicted by indictment: but with this remarkable difference; that on an indictment, which is at the suit of the king, the king may pardon and remit the execution; on an appeal, which is at the suit of a private subject, to make an atonement for the private wrong, the king can no more pardon it, than he can remit the damages recovered on an action of battery.3 . . . ... [Editor's note.] Injury to life, in general, cannot be the subject of a civil action; the civil remedy being merged in the offence to the public. Therefore an action will not lie for battery of wife or servant, whereby death caused. Styles, 347; 1 Lev. 247; Yelv. 89, 90; 1 Ld. Raym. 339. The remedy is by indictment for murder, or, formerly, by appeal. . . . In general, all felonies suspend the civil remedies, Styles, 346, 7: and before conviction of the offender there is no remedy against him at law or in equity, id. ibid. 17 Ves. 331; but after conviction and punishment on an indictment of the party for stealing, the party robbed may support trespass or trover against the offender, Styles, 347; Latch, 144; Sir Wm. Jones, 147; 1 Lev. 247; Bro. Ab. tit. Trespass. And after an acquittal of the defendant, upon an indictment for a felonious assault upon a party by stabbing him, the latter may maintain trespass to recover damages for the civil injury, if it be not shewn that he colluded in procuring such acquittal. 12 East, 409. In some cases, by express enactment, the civil remedy is not affected by the criminality of the offender. 62. HUGGINS (OR HIGGINS) v. BUTCHER KING'S BENCH. 1607 1 Brownlow, 205; Yelv. 89 THE plaintiff declared that the defendant such a day did assault and beat his Wife, of which she died such a day following, to his damage 1007. 1 Mirr. c. 2, 7. * 2 Hawk. P. C. 392. 2 Stiernh. de jure Goth. 1. 3, c. 4. And Serjeant Foster moved that the declaration was not good, because it was brought by the plaintiff for a battery done upon his wife; and this being a personal wrong done unto the woman, is gone by her death: And if the woman had been in life, he could not have brought it alone, but the woman must have joyned in the action, for the damages must be given for the wrong offered to the body of the woman, which was agreed. And TANFIELD [J.] said, that if one beat the servant of F. S. so that he die of that beating, the master shall not have an Action against the other for the battery and loss of service, because, the servant dying of the extremity of the beating, it is now become an offence against the Crown, and turned into Felony, and this hath drowned the particular offence, and prevails over the wrong done to the Master before: And his Action by that is gone, which FENNER and YELVERTON [JJ.] agreed to. 63. BAKER v. BOLTON NISI PRIUS. 1808 1 Camp. 493; Rev. Rep. X, 734 THIS was an action against the defendants as proprietors of a stage coach, on the top of which the plaintiff and his late wife were travelling from Portsmouth to London, when it was overturned; whereby the plaintiff himself was much bruised, and his wife was so severely hurt that she died about a month after in a hospital. The declaration, besides other special damage, stated, that "by means of the premises, the plaintiff had wholly lost, and been deprived of the comfort, fellowship, and assistance of his said wife, and had from thence hitherto suffered and undergone great grief, vexation, and anguish of mind." It appeared that the plaintiff was much attached to his deceased wife, and that, being a publican, she had been of great use to him in conducting his business. But, Lord ELLENBOROUGH said, the jury could only take into consideration the bruises which the plaintiff had himself sustained, and the loss of his wife's society, and the distress of mind he had suffered on her account, from the time of the accident till the moment of her dissolution. In a civil Court, the death of a human being could not be complained of as an injury; and in this case the damages as to the plaintiff's wife must stop with the period of her existence. Verdict for the plaintiff, with £100 damages. Park and Marryat, for the plaintiff. The Attorney-General, for the defendant. Q. If the wife be killed on the spot, is this to be considered damnum absque injuria? - - REPORTER Topic 2. Death, as extinguishing a Cause of Action already existing 64. HAMBLY v. TROTT KING'S BENCH. 1776 Cowper, 371; English Ruling Cases, II, 1 IN trover against an administrator cum testamento annexo, the declaration laid the conversion by the testator in his lifetime. Plea, that the testator was not guilty. Verdict for the plaintiff. Mr. Kerby had moved an arrest of judgment upon the ground of this being a personal tort, which dies with the person, upon the authority of Collins v. Pennerel, and had a rule to shew cause. Mr. Butler last shewed cause. The objection made to the plaintiff's title to recover in this case is founded upon the old maxim of law which says: "actio personalis moritur cum persona." But that objection does not hold here; nor is the maxim applicable to all personal actions; if it were, neither debt nor assumpsit would lie against an executor or administrator. If it is not applicable to all personal actions, there must be some restriction; and the true distinction is this: Where the action is founded merely upon an injury done to the person, and no property is in question; there, the action dies with the person: as in assault and battery, and the like. But where property is concerned, as in this case, the action remains notwithstanding the death of the party. ... Mr. Kerby, contra, for the defendant, cited Palm. 330, where Jones, Justice, said, "that when the act of the testator includes a tort, it does not extend to the executor; but being personal dies with him; as trover and conversion does not lie against an executor for trover sait par luy.” Collins v. Pennerel, above cited. . . . Afterwards, on Monday, February 12, in this term, Lord MANSFIELD delivered the unanimous opinion of the Court as follows: This was an action of trover against an administrator, with the will annexed. The trover and conversion were both charged to have been committed by the testator in his lifetime: The plea pleaded was, that the testator was not guilty. A verdict was found for the plaintiffs, and a motion has been made in arrest of judgment, because this is a tort, for which an executor or administrator is not liable to answer. The maxim, "actio personalis moritur cum persona," upon which the objection is founded, not being generally true, and much less universally so, leaves the aw undefined as to the kind of personal actions which die with the person, or survive against the executor. An action of trover being in form a fiction, and in substance founded on property, for the equitable purpose of recovering the value of the plaintiff's specific property, used and enjoyed by the defendant; if no other action could be brought against the executor, it seems unjust and |