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The second great class of trespasses against the person consists of cases of false imprisonment.87

False imprisonment is any unlawful detention of

any person.


In an action for damages for false imprisonment the motives of the defendant are not material, except in mitigation of damages. In McConnell vs. Kennedy the court said: "In such an action it does not seem to us that the motive with which the prosecution is instituted constitutes any element of the cause of action. If a prosecution is commenced against a party and he is arrested without lawful authority, the person who procures such arrest, no matter how pure or laudable may have been the motives of the prosecutor in instítuting the prosecution, may be liable to an action for false imprisonment, because he caused a citizen to be

sailed because of the unlawfulness of the first assault, and the assailant because of the excess of the force used by the other in defending against the original assault.' Street's Foundation of Legal Liability, Vol. I, p. 7. Dole vs. Erskine, 35 N. H., 503; Gratton vs. Glidden, 84 Me., 589; Slone vs. Slone, 2 Met. (Ky.), 339. 87 "Forcefully to deprive a man of the freedom to go whithersoever he may is clearly a trespass. False imprisonment was indeed one of the first trespasses recognized by the Common law (Bracton's Note Book II, p. 314 (1229), pl. 465). A laying of violent hands upon the person and an actual forceful deprivation of liberty is the element undoubtedly at the root of liability in this wrong. In other words, the typical original imprisonment involved a battery. But the wrong was not destined to be restricted

to such narrow bounds. Just
as the assault represents an
extension of the conception of
harm involved in the battery
in one direction, so the wrong
of imprisonment represents the
extension of that conception in
another direction. Accordingly
it has been settled that actual
physical constraint or physical
contact is not necessary to
make an imprisonment. Co-
ercion of any kind, as where
the person yields without re-
sistance to superior force or to
authority, is enough. But
some form of coercion is
essential. One who is prevailed
upon by false representations
to go and remain at a particular
place is not imprisoned, unless,
perchance, force or intimida-
tion be used to prevent de-
parture." Street's Foundation
of Legal Liability, Vol. I,
pp. 12-13.
88 29 S. Car., 180.

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restrained of his liberty without lawful process, and his motive has nothing to do with the case, except, perhaps, as an element to be considered in measuring the damages." That the arrest was made by mistake is not a defense to an action for false imprisonment.99 The provocation given to the defendant is also no defense.00 SECTION 22. FALSE IMPRISONMENT, COMPARED WITH MALICIOUS PROSECUTION.

The actions of false imprisonment and malicious prosecution have often been confused together," but

89 Sugg vs. Pool, 2 Stew. & P., 196; Landrum vs. Wells, 7 Tex. Civ. App., 625.

50 Grace vs. Dempsey, 75 Wis., 313, where it was held that a letter written to the defendant charging him with crime was no justification of an unlawful imprisonment committed under the provocation of such letter. The following cases illustrative

of this confusion are culled in American & Eng. Enc. of Law, Vol. 12, p. 731: "In Brown's Law Dictionary (2nd ed), title False Imprisonment, it is stated with reference thereto; 'For the success of the action it is necessary to prove both malice on the part of the defendant and the absence of all reasonable or probable cause and, of course, that the accused was acquitted.' It is evident here that false imprisonment has been confused with malicious prosecution, for, as is shown in other parts of this article, none of the above-stated essentials is necessary for the maintenance of an action for false imprisonment."

Another instance of confusion is presented by the case of Perry vs. Sutley (Supreme Ct.), 18 N. Y. Supp., 633, in which the court begins its opinion by saying: "The action was for false imprisonment." Then further: "The

rules of law applicable to actions of this character are very simple and familiar. There must be want of probable cause, and malice, but if the former is established the latter may be inferred therefrom." Thus it appears that either the action was not false imprisonment, but more in the nature of an action for damages for malicious prosecution, or the court misstates the rules of law applicable thereto. In fact, it further appears that the arrest of the plaintiff was under legal process, valid and regular, and the point upon which the case was turned was whether or not there was probable cause for the prosecution, the conclusion being that under the circumstances it was a question of fact for the jury.

And also in the case of Brown vs. Chadsey, 39 Barb. (N. Y.), 262, the court said with reference to an action for false imprisonment; "Malice in the defendant will be inferred, so far at least as to sustain the action."

Likewise in another case the action, though stated in the opinion of the court to be one for false imprisonment and malicious prosecution, seems to have been regarded only in its latter aspect and a verdict was directed for the defendent, al


the two actions nevertheless present striking differences. These differences are shown by the following decisions: In the case of Hobbs vs. Ray 22 it was said with reference to the distinction between false imprisonment and malicious prosecution: "These actions are quite distinct from each other. An action of trespass and false imprisonment lies for an arrest or some other similar act for an arrest or some other similar act of the defendant, which, as is said, 'upon the stating of it is manifestly illegal;' while malicious prosecution, on the contrary, lies for a prosecution which upon the stating of it is manifestly legal." In the case of McConnel vs. Kennedy " in distinguishing between an action for false imprisonment and one for malicious prosecution, the court said: "It is quite true that one arrested and restrained of his liberty even under lawful process, may have a cause of action if it is alleged and shown that the prosecution was malicious and was without probable cause and has terminated; but that is a different cause of action and depends upon different allegations and proofs, and the action for malicious. prosecution must not be confounded with an action for false imprisonment."

though from the facts stated it would seem that an action for false imprisonment might have been sustained. Casdro vs. De Riarte, 16 Fed., 93,

Again in the case of Warren vs. Dennett, 17 Misc. Rep., N.Y. (City Ct.), 86, the court, in distinguishing between actions for false imprisonment and those for malicious prosecution, said: "In the one for false imprisonment the plaintiff must show that the defendant had him imprisoned or deprived of his liberty, and that the mode or process was unlawful, i. e., without due

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process of law. He must
prove want of probable cause,
and malice is presumed. The
defendant may, however, dis-
prove malice. In an action for
malicious prosecution the
plaintiff must prove that the
process was regular, and the
arrest under it lawful, or by
lawful authority acting for
itself, and must also prove a
want of probable cause and
that the same was malicious.
Here malice is not presumed,
as in the action for false impri-
sonment, but must be proven."
9 18 R. I., 84.
99 29 S. Car., 180.

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In the case of Herzog vs. Graham" the court said with reference to false imprisonment and malicious prosecution: "The distinction is that false imprisonment is some interference with the personal liberty of the plaintiff which is absolutely unlawful and without authority. Malicious prosecution is in procuring the arrest and prosecution under lawful process on the forms of law, but from malicious motives and without probable cause.' A clear and concise statement of the distinction under discussion is to be found in the case of Colter vs. Lamb 95 wherein it was observed that if the imprisonment is under legal process, but the action has been commenced and carried on maliciously and without probable cause, it is malicious prosecution. If it has been extrajudicial, without legal process, it is false imprisonment.


The two constituent elements of false imprisonment are: (1) the detention or restraint; and (2) the unlawfulness of such detention or restraint.96


SECTION 24. THE DETENTION OR RESTRAINT. The confinement need not be in a jail; it may be in a private house, or even outdoors, if the party is deprived of freedom of movement.98 Where a person who had been fined for a violation of a municipal ordinance was wrongfully compelled to pay the fine by manual labor on the streets, it was held that there could be a recovery for false imprisonment." To constitute false imprisonment, however, the person must be completely deprived of freedom of movement;

49 Lea. (Tenn), 152.
95 35 Ind., 285, Am. Rep., 735.
Rich vs. McIrney, 103 Ala., 345;
Etate vs. Lunsford, 81 N. Car.,
528; Amer. & Eng. Ency. of
Law, Vol. XII, p. 733.

97 Warner vs. Riddiford, 4 C. B. M.
S., 180.

98 Floyd vs. State, 12 Ark., 43, 54
Am. Dec., 250.

"Torbett vs. Lynch, 67 Ind., 474.

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merely preventing him from going in one direction will not furnish a basis for this action.100

The imprisonmnet may be accomplished either by force or by threats.101 In case of apprehension by threats, the fear of apprehension which the threats occasion may be either of injury to the person, property, or reputation.102 The threats may be either express verbal threats or may simply consist of acts or gestures.103 The threats must, however, be of such a character as to raise a reasonable apprehension of injury.104 SECTION 25. THE UNLAWFULNESS OF THE DETENTION.

The unlawfulness of the detention may arise either from the fact that it was without process, or under color of illegal process.105

An arrest without a warrant is always illegal unless made by an officer who has reasonable grounds to believe that a felony has been committed and that the party arrested is the guilty party.10 An unlawful imprisonment may also arise from an arrest on a defective warrant, or the arrest of a privileged person,'


100 Bird vs. Jones, 72 B., 742. In this case, the defendant, an officer was stationed at a particular point to prevent persons from passing in a certain direction, prevented the plaintiff from passing that way, but left another way open to him, of which, however, he did not wish to avail himself, and therefore stood there for sometime. Held that there was no imprisonment.

101 Johnson vs. Tompkins, I Baldw. (U. S., 578); Greathouse vs. Summerfield, 25 Ill., App. 296; Gold vs. Bissell, 1 Wend. (N. Y.), 210.

103 Jones vs. State. 8 Tex. App. 365. 108 Maner vs. State, 8 Tex. App.,

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104 Greathouse vs. Summerfield, 25
Ill., App. 296.

105 "It makes no difference whether

the restraint of the person is
caused without process or
under color of process wholly
illegal * * * * it is a trespass
against the person, for which
the plaintiff is entitled to com-
pensation in damages upon the
necessary proof of the facts."
Ahern vs. Collins, 39 Mo., 150.
106 Brockway, vs. Crawford, 3 Jones

L. (48 Ñ. Car.), 433; Firestone
vs. Rice, 7 Mich., 377, 15 Am.
St. Rep., 266.

107 Wood vs. Kinsman, 5 Vt., 589;
Smith vs. Jones, 76 Me., 138,
49 Am. Rep., 589.

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