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liberum tenementum has rendered a particular description of the locus in quo necessary; and, in general, where a new assignment is unnecessary, it will be improper, and sometimes fatal to the plaintiff's right to recover a. Where in trespass for false imprisonment, the defendant justified under process, which was irregular, and the plaintiff new assigned that the trespass complained of was committed on another and different occasion from that stated in the plea, &c.; it was held that, as there was only one arrest and imprisonment proved, the defendant was entitled to a verdict, although the arrest was made without proper authority; for the new assignment admitted that the declaration was well answered by the plea. The plaintiff ought to have traversed the fact pleaded. So, if the trespass be committed with more violence than the subject of justification authorized, the plaintiff should reply the excess and not new assign c.

excess be

But if the excess be in law strictly justifiable, the plaintiff If the cannot avail himself by new assigning it; as where the de- justifiable, fendant pleaded a right of common, and the removal of certain a new assignment fences in the exercise thereof, and the plaintiff new assigned, of it will and in support of the new assignment proved that the de- not avail. fendant had pulled down more of the fences than was necessary for the exercise of such right; held, that the defendant was not guilty of an excess; for where fences are wrongfully erected upon land subject to a right of common, the commoner has a right to remove the whole of such fences, though the total removal be not necessary to enable him to enjoy the right obstructed d

A replication of excess admits the cause of justification, and precludes the plaintiff from giving evidence to negative the justification. Thus, if the defendant justify as abating a

a1 Ch. Pl. 632.

Oakley v. Davis, 16 East, 82. 1 Saund. 300. d. Pratt v. Groome, 15 East, 235. Ante, 1437.

Dale v. Wood, 7 Moore, 33. Arlett v. Ellis, 7 B. & C. 346. Mason v. Cæsar, 2 Mod. 65. Badger v. Ford, 3 B. & A. 153. Cooper

VOL. II.

v. Marshall, 1 Burr. 259. The
owner of goods which another re-
fuses to deliver up, is justified in
using so much violence as is neces-
sary to retake them, and it is for
the jury to say whether unnecessary
force has been used. Rex v. Mil-
ton, M. & M. 107.

3 A

nuisance, and the plaintiff reply excess, he cannot go into evidence to negative the nuisance. So, where the defendant justified cutting ropes for the purpose of disengaging two vessels, and issue was taken on a new assignment of excess; it was held, that the plaintiff was bound to prove a clear excess and unnecessary injury b. Plea, a right of way, to trespass for pulling down a gate; replication, a subsequent conversion of the gate by the defendant; it appeared at the trial that the defendant laid the gate on his own land, where the plaintiff might take it; held, not to amount to a conversion c.

Where a man abuses an authority or license which the law gives him, by which he becomes a trespasser ab initio, if the defendant pleads such license or authority, the plaintiff should reply its abused; for if he new assign that the trespass is a different trespass, he cannot recover, as he can only prove one continued act of trespass, which is admitted by the assignment; for though the defendant becomes a trespasser, ab initio, it is not a new trespass e.

SECTION VIII.

DAMAGES.

In actions for assaults, the circumstances of time and place, when and where the insult is given, require different damages; as it is a greater insult to be beaten upon the Royal Exchange than in a private room. It is always the practice to give in evidence the circumstances which accompany and give a character to the trespass, and the jury look into these circumstances and give damages accordingly 8. But nothing can be 'given in evidence under the general averment, (that the defend

a Id. Pickering v. Rudd, 1 Stark. 56.

b Hockles v. Mitchell, 4 Esp. 86. Houghton v. Butler, 4 T. R.

с

364.

d1 Saund. 300. d.

* Aitkenhead v. Blades, 5 Taunt. 198.

f Per Bathurst, J., in Tullidge v. Wade, 3 Wils. 19.

8 Per curiam, in Bracegirdle c. Orford, 2 M. & S. 79.

ant did other wrongs to the plaintiff,) except acts which could not be put on the record; therefore, in an action for trespass and false imprisonment, Lord Kenyon refused to admit evidence that the plaintiff had been stinted in food during the confinement a.

mages

cannot be

In a joint action against several defendants, the damages The dacannot be severed so as to give more damages against one than against another, but a verdict may be given against both to the severed. amount which the jury think the most culpable ought to pay b. The plaintiff can have but one satisfaction in damages, though the assault be committed by several, whether the action be brought jointly or severally. In an action of assault, battery and wounding, against two, the one pleads to all, except the wounding, that it was in his own defence, and to the wounding, not guilty; the other justifies all in his own defence. The jury found the first guilty of the wounding, and assessed the damages 201., and found the issue also against the other defendant, and damages 100%. On error, because there ought to be but one judgment for damages, the court reversed the judgment, observing that though the defendants had severed in their pleas, yet when they were found both guilty of one and the same battery, one joint damage ought to have been given by the jury against both c. If two defendants in trespass suffer judgment by default, and the plaintiff execute writs of enquiry against them separately, and take several damages against them, it is irregular; but the court will permit the plaintiff to set aside his own proceedings, before final judgment, on payment of costs d.

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What con- 1.-When this action lies in general.] ANY illegal restraint on stitutes a false imthe liberty of the person is denominated a false imprisonment, prisonment. for which an action of trespass vi et armis will lie.

If a constable tell a person given into his charge, that he must go with him before a magistrate, and such person in consequence goes quietly without any force being used by the constable, it is a sufficient imprisonment to support an action of trespass against the party who gave the plaintiff in charge a. If a party acts himself in apprehending another, he may be liable in trespass; but if he falsely and maliciously, and without any probable cause, puts the law in motion, that is properly the subject of an action on the case b. "If," said Eyre, C. J., "the constable, in consequence of the defendant's charge, had for one moment taken possession of the plaintiff's person, it would be in point of law an imprisonment, as if he had tapped him on the shoulder and said, "you are my prisoner;" or if she had submitted herself into his custody, such would be an imprisonment; but the mere giving her in charge without taking possession of her person, where nothing more passes than merely the charge, is not by law a false imprisonment."c

Where the plaintiff appeared before defendant, a magistrate, to answer the complaint of A. for unlawfully killing his dog; defendant advised plaintiff to settle the matter, by paying a sum of money, which plaintiff declined; defendant then said "he would convict plaintiff in a penalty under the trespass

a Chinn v. Morris, 2 C. & P. 361. R. & M. 424. Pocock v. Moore, R. & M. 321. And see Stonehouse v. Elliott, 6 T. R. 315. 1 Esp. 272.

Per Bayley, J., in Elsee v.

Smith, 1 D. & R. 103. 2 Chitt. 304.

Per Eyre, C. J., in Simpson v. Hill, 1 Esp. 431. As to what constitutes an arrest, see ante, 1290.

act, in which case he would go to prison;" plaintiff still declined paying, and said he would appeal; defendant then called in a constable, and said, "take this man out and see if they can settle the matter, and if not, bring him in again, as I must proceed to commit him under the act ;" plaintiff then went out with the constable and settled the matter, by paying a sum of money; held, that this was an assault and false imprisonment for which trespass would lie; and which, as no conviction had been drawn up, defendant could not justify a. So, where the plaintiff was in the King's Bench prison, and the defendant served an order on the marshal to have him brought up, and on being brought up, he was committed by the court of King's Bench, on an attachment for nonpayment of costs, and detained in prison; held, to be an assault and imprisonment for which an action would lie; but that the judgment of the court, if specially pleaded, was a justification. But where a schoolmaster refused to give up a pupil to his mother, until some arrears of salary were paid, and detained him during the Christmas holidays; it not appearing that the boy was aware of the refusal, or in any way restrained; it was held, that an action for false imprisonment could not be maintained by him c.

A person is not justified in giving a party in charge to a police officer, for insulting him or annoying him in the street; but he may give these circumstances in evidence in mitigation of damages, in an action for false imprisonment d

But bare words do not constitute an arrest; therefore if an officer shew his warrant to a party charged with an offence, and the latter voluntarily attend the officer to a magistrate, it is not such an arrest as will support trespass and false imprisonment; for the warrant is made no other use of than as a summonsf.

If a person, whose name is William, is asked, before process against him, whether his name is not John, and he

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