In the Queen's Bench.-Bird v. Jones. total restraint of his liberty whilst the let- | information to tell him that he should ter was read. I agree with the definition move only in one direction. It appears in Selw. N. P. tit. "Imprisonment," (p. to me that, if he had moved in that direc907, 10th edit.) which is, that "false im- tion, it would have been precisely the prisonment" is a restraint on the liberty same thing as if the two policemen had of the person without lawful cause; either taken the man by the collar and dragged by confinement in person, stocks, house, him on in that direction. Telling the in&c., or even by forcibly detaining the dividual he should go there and nowhere party in the streets against his will. He else, with a force capable of carrying that cites Thorp, C. J., 22 Assize, fol. 104, pl. into effect, and which they had ready to 85. The word he there uses is "arêt," act under their orders-this would, in which appears to me to include a detain- truth, have been an act of restraint of his ing; and Selwyn uses it as meaning not person; and I can find no legal definition only merely preventing a person from of false imprisonment, except unlawful passing along. Upon the whole, I am of restraint by force, on the part of one subopinion the only imprisonment proved is ject against another. Selwyn's definition that which occurred when the plaintiff has been stated; it is copied from Buller's was taken into custody, after he as- Nisi Prius, and it particularly shows that saulted the defendant, and that the se- it is not by any technical description of cond plea was made out. I think the rule the word; and I certainly was quite unfor a new trial, therefore, should be made aware that any boundary was necessary absolute. to constitute an imprisonment. But it is said, in general terms, and I see no reason LORD DENMAN, C. J.-I am extremely for disputing it, that every restraint of a sorry that I differ from my learned bro- man's liberty under the custody of anthers; but after much communication to- other, either in the stocks or in the streets, gether, I really cannot find it possible for is, in law, an imprisonment; and wherme to give up the opinion which I enter-ever that is done without authority, it is tained in the first instance. I cannot false imprisonment, for which the law doubt that I am wrong, and that my gives an action. The language is of very learned brothers are right; but, on such a large construction, because an imprisonquestion as this, I feel bound to express ment is complete without touching the the opinion I entertain. It appears to me, person, and without locking him up in a however, from the very language used by room, where he neither touches the indimy learned brothers, and from the facts vidual nor the individual touches him; it which are found in the case, that the im- was not only held imprisonment, but imprisonment was made out in this case by prisonment including assault and battery. the evidence, which was perfectly clear The language of Thorp, C. J., in the year and satisfactory. I take it, that the im- book, called "The Book of Assizes," pression of my mind has been led wrong which is quoted, is, "Imprisonment is said by a circumstance which I always look at to be in every cause where a man is aswith very great disapprobation. The saulted or is arrested by force, or against Hammersmith bridge company thought his will, be it in a high street or elseproper to raise money by obstructing the where, though he be not imprisoned in a public footway, and the plaintiff chose to house," &c. It seems that, even then, exercise his right over that footway; they there was some doubt whether an imprithought proper to employ policemen to sonment itself must not be within particueffect their object, so giving an appear-lar walls; but in those early times, it was ance of lawful authority to an act which, discovered that the restraint of a man's liI think, doubly unlawful-restraining the berty by force is the only reasonable defiliberty of the subject and extorting money. The party in question endeavored to get into this inclosure, which he had a right to do on either side of the road, and they endeavored to pull him back by an assault; and the moment he got into it they stationed two policemen, with direct nition that can be given to an imprisonment. It is said, in this case, that the plaintiff was at liberty to go in some direction. I do not know that he was so at liberty. If a man deprives me of my freedom, and does not give me free passage through my own house, how can I tell he Rolls Court.-Wetherhill v. Naylor. [PRACTICE COURT.] Before M. Justice PATTESON, PLEADING NEW ASSIGNMENT, WHEN NE CESSARY. If to an action for goods sold and delivered a general release be pleaded, the plaintiff is not, under a replication of "non est factum," entitled to show that the debt specified in the particulars of demand, and in respect of which the action is brought, was excepted from the operation of the release, and in order to do so a new assignment is necessary. would not restrain me when I offer to ex- | sions, but I have often sacrificed my own ercise the right which he, for a moment, opinion to those opinions which I consipromises to permit me to exercise. His der authorities, in points upon which I telling me that I may go in another direc- have less right to judge than others; but, tion, appears to me a matter of perfect in- in this case, we are quite upon first prindifference, provided the restraint on my ciples, or rather, I should almost say, upon person is, in the first instance, made out. the understanding of simple and distinct What does it signify to me if I am told to legal language; and I think that every go, but not to exercise my right to go in unlawful restraint of the person by direct a particular direction? The party may force is an imprisonment. I therefore allow me to do every thing else in the think that the rule should be discharged; world, yet if he, by direct means of force but, as the rest of the court are of a differto be immediately employed, prevent me ent opinion, it must be made absolute. from doing that which I have a right to Rule absolute, do, it seems to me that is, in itself, the application of direct force, and I can view it in no other light. I may be locked up in a room, and told, " Although I prevent your going out of the door, you are quite free to go out of the window, and you may subject yourself to the inclemency of the weather." That is doing me a wrong, and it is a wrong without obstruction, yet it is a wrong by the prevention of the exercise of my personal liberty. I am told I may have an action on the case for it. I cannot conceive it should be necessary to make a new writ for such an action on the case. Suppose a man prevents me going where I have a right to go, am I to sue per quod he obstructed my right of way only, and for that reason am I to show a special damage as the ground of DEBT.-The particulars of demand claimaction? I think the answer would be, ed £9 148 7 1-2d for two pieces of "blue "You shall not have an action on the pilot," delivered on Nov. 20th, 1844, and case; you shall not build your right upon numbered respectively 1889 and 1890, the special damage, because you may and to a declaration for £10 due for goods show that an injury has arisen by the re-sold and delivered, and an account stated, straint of your person, and for that re- the defendant pleaded: 1st, Never indebtstraint you have an action of trespass, ed; 2d, That after the accrual of the assault and false imprisonment, and not causes of action, to wit., on, &c., 1845, the an action on the case, which implies some plaintiff, by a certain indenture, sealed, lawful act producing unlawfully an injury &c., and now shown to the court here, to me." I think that here all was unlaw-released the said causes of action to the ful, as well as continuous. I cannot, however, but feel very sorry we have not been able to adopt the same view of this case. We are all extremely desirous to agree where it is possible, and we are sensible of the great value of unanimity in judicial decisions, because it is impossible for differences to take place without undermining in some degree the authority of judicial decisions. I have, certainly, in many instances, not only been perfectly convinced by reasoning, and have been ready to admit my wrong in my first impres defendant. The plaintiff joined issue on the first plea, and as to the second, replied "Non est factum." At the trial, before Mr. Secondary James, it appeared that after the goods in question were delivered, the plaintiff and the other creditors of the defendant agreed to accept a composition of 6s in the pound, and in support of the second plea the defendant produced a deed of composition executed by them, and dated January 15, 1845, whereby they released him from debts set opposite to their respective Practice Court.-Townsend v. Smith. names, and from all actions, &c., in respect thereof. The sum of £142 28 3d was set opposite to the plaintiff's name, but of what that sum was made up did not appear in the deed, nor was the debt in question anywhere specifically mentioned therein. In answer to this, the plaintiff gave evidence showing that the debt mentioned in the particulars was not included in the release. The learned Secondary, however, being of opinion that in order to let in such evidence, a new assignment was necessary, the plaintiff elected to be non-suited, leave being reserved to him to move to set it aside. H. Wilde moved accordingly, and contended that the issue raised by the replication of "Non est factum," was not, under the circumstances of this case, confined to the question of whether the deed was or was not executed by the plaintiff': but that the issue was, whether the deed was intended to release the debt specified in the particulars. Simons v. Johnson, 3 B. & Ad. 175; Moses v. Levi, 4 Q. B. 213. By the rules of pleading, the plaintiff, being a party to the deed, could not have replied that the "plaintiff did not release," Taylor v. Needham, 2 Taunt. 278, Stephen Pl. 3d ed. 196; and a new assignment is only necessary when the defendant may have been misled by the form of the plaintiff's complaint; but here, considering the terms of the particulars of demand, it is impossible that such could have been the case. a replication, upon the ground of its having disregarded such a conclusion, was set aside as frivolous. DEBT upon a replevin bond; and the declaration having set forth in the usual manner, a judgment in the Queen's Bench in favor of the defendants in replevin, (the present plaintiffs,) the now defendant (the plaintiff in replevin) pleaded nul tiel record, concluding thus:-" And of this the defendant puts himself upon the country." Thereupon the plaintiffs made up and delivered an issue containing a replication "that there is such a record as the plaintiff's have alleged, and this they are ready to verify by the said record, when, where, order," &c.; and the issue was accompanied by a notice that the plaintiffs would on November 24, produce the record in court. The defendant, however, returned the notice, stating that he retained the issue as a replication only, and demurred specially to the replication upon the ground that the defendant having concluded his plea to the country, the plaintiffs were bound either to accept an issue to the country, or to demur to the plea. and in such manner as the court here shall Rawlinson showed cause against a rule for setting aside the demurrer as frivilous, and contended, that whether the plea was well or ill concluded, the demurrer must stand, for the plaintiffs had no right to plead over the issue tendered by the defendant, and substitute a different mode of trial in the replication; and that they should either have joined issue to the country, demurred to the plea, or have applied to the court to strike out the improper conclusion contained in it. Stephens, Pl. 3d ed. 238, note e. Fitzherbert, contra. The conclusion to the country, in the defendant's plea, is a mere artifice to entrap the plaintiffs, whose only course was to reply as they have done, and had they adopted any other the term would have been lost. The conclusion to the country in the plea is mere surplusage, and if it were struck out, the plea would be perfectly good without the addition of any other conclusion; it having been held, that pleas merely in the negative need not be concluded with a verfication. Bodenham v. Hill, 7 M. & W. 274; Atwood v. Taylor, note by Manning, Sergeant, 1 M Queen's Bench.-Williams v. Welsh and Another. & G. 288, note a. [Patteson, J.-If a plea | consul at Boulogne was insufficient; but of set-off were wrongly concluded to the in the subsequent cases of Davy v. Maltcountry, could you reply nil debet? I wood, 2 M. & G. 424, and in re Pickersthink not.] Perhaps not; but it is sub-gill, 6 M. & G. 250, that court received mitted that if it concluded first with a affidavits verifying certificates of the acverification, and then to the country, such a replication would be good. knowledgment of deeds by married women, under the statute 3 & 4 W. 4. c. 74 sec. 85, although in the former case the affidavit was sworn at St. Petersburg, bein the latter at Moscow, before a person fore the British consul there resident, and described as the "minister of the British PATTESON, J.-As the plea would have been good without any conclusion at all, I think that the conclusion to the country may be rejected as unnecessary. The replication, therefore, is proper, and the rule must be absolute for setting aside the chapel, Moscow." [Patteson, J.-In Le demurrer as frivolous. AFFIDAVIT SWORN BEFORE CONSUL. A British consul, resident abroad, has authority to administer oaths and take affidavits only in those cases in which oaths and affidavits may be taken and administered by a magistrate in England. Held, therefore, that an affidavit of service of a rule to show cause, sworn before the British consul at Paris, is not receivable. (a) Swann had obtained a rule to show cause why a scire facias should not issue, to revive a judgment more than fifteen years old; and he now (Nov. 24) moved to make the rule absolute, upon (amongst others) two affidavits-one of them being an affidavit of service of the rule nisi upon one of the defendants in Paris, and purporting to have been sworn before and sealed by the British consul resident in that city; and the other, an affidavit made by a gentleman in the Foreign Office, in Downing-street, verifying the signature and seal of the consul, and deposing that the person before whom the last mentioned affidavit was sworn held that office. It was submitted that an affidavit of service, so sworn and verified, is properly receivable, inasmuch as by the law of France no magistrate in that country could administer an oath. It is true that in exparte Lady Hutchinson, 4 Bing. 606, the Common Pleas held, that an affidavit of the caption of a fine, taken before a British (a) See Warren v. Swinborne, vol. 3, N. Y. Leg. Ob. 331. Veux v. Berkeley, 2 Dowl. & L. 31, we seem to have held, that the British consul at Paris has no authority to take affidavits in general.] But in that case neither Davy v. Maltwood, nor the fact that in France a magistrate has no power to administer an oath, were brought under the notice of the court. [Patteson, J.-A consul derives his authority to administer an oath from the stat. 6 Geo. 4 c. 87, sec. 20, and in ex parte Lady Hutchinson it was determined that this statute only gave him authority to administer such oaths as might be administered by a magistrate in England. Now an English magistrate would have no power to take such an affidavit as that in question.] Nor would he to take affidavits in lunacy; yet in Dyce Sombre's case many affidavits, sworn precisely as in the present case, were received by the Court of Chancery. [Patteson, J.—I do not see how the Court of Chancery, or any other court, can give authority to administer an oath. The recent cases in the Common Pleas arose upon ex parte proceedings, under the statute 3 & 4 Will. 4 c. 74. This is a very strong measure, and, if sanctioned, would go the length of authorising an affidavit to be sworn before any consul in the world, or even before a captain of a ship on the high seas.] Cur, adv. vult. I have spoken to the Lord Chief Justice PATTESON, J., on November 25th, said, of the Common Pleas upon the recent cases in that court, and his Lordship thinks that the practice allowed by them of acknowledgment under the statute 3 & was not intended to extend beyond cases 4 W. 14, c. 74, in which it had been thought that the usual rule might be relaxed. So Le Veux v. Berkley is directly in point; and consequently, the affidavit In the Queen's Bench.-Basset v. Pearce. in question, as at present sworn, is insufficient. Afterwards, upon the application of Swann, The rule was enlarged. Before the Rt. Honorable LORD DENMAN, C. J., and the rest of the Judges. conversion on the part of the defendant, except that which took place by the leave and license of the plaintiff. The plaintiff, as wharfinger, had only a qualified property in the goods, and that had ceased when he voluntarily gave up possession of them to the defendant. In case the property had consisted of goods of a perishable nature, such as wine, and that had have supported the action of trover. BASSET V. PEARCE, Michaelmas Term, been consumed, the plaintiff could not TROVER 1845. CENSE. Mr. Justice WILLIAMS.-I think the CONVERSION -LEAVE AND LI- action of trover can be supported. When the plaintiff discovered the mistake he had a right to see it rectified. I think there was a conversion when the defendant refused to deliver up that portion of the goods which remained unsold. A., a wharfinger, delivered goods to B. by mistake, who, when the mistake was discovered, had sold a portion of them, but who offered to give up the remainder and pay a reasonable sum for those sold. Held, that under the plea of leave and license there was a conversion, by disposing of part of the goods after the mistake had been discovered; and that the qualified property which A. had in the goods, was not terminated by delivery to B. under a mistake. TROVER. Plea: 1. Not guilty; 2. Not possessed; 3. Leave and license. The case was tried before Lord Denman, C. J., at the sittings in London after last Trinity Term. The plaintiff was a wharf inger, who received certain crates of earthenware, marked in such a manner as induced him to believe they were intended for the defendant, who was a dealer in such goods. The defendant thought the crates were not intended for him, but the plaintiff said they must belong to him, and accordingly sent them to his premises. The defendant unpacked the goods and had disposed of a portion of them, when the plaintiff discovered that a mistake had been committed, and that they were intended for another person. The plaintiff then requested the defendant to restore the goods, when he was unable to do so, having sold a portion of them, but he was willing to restore the remainder and to pay a fair and reasonable price for the portion that he had sold. This offer was refused, Mr. Justice COLERIDGE.-I think there was a conversion, and that the plaintiff has a right to retain the verdict, on the plea of leave and license. After the mistake was discovered by the plaintiff, part of the goods was disposed of by the defendant, which would amount to a conversion. I do not think that the special property which the plaintiff had in the goods, is limited in the manner contended for by Mr. Bramwell. The leave and license of the plaintiff was shown to arise out of a mistake. Mr. Justice WIGHTMAN.-This case turns on the plea of leave and license. I do not think that the qualified property in the goods ceased when there was a delivery by mistake. Then there was a leave and license for a certain period, which was determined by discovering the mistake, and part of the goods were disposed of afterwards. Lord DENMAN, C. J., concurred. Rule refused. In the Exchequer. and a verdict was passed for the plaintiff. Before the Rt. Honorable Sir FREDERICK POL Mr. Bramwell now moved for a rule to show cause why there should not be a new trial, on the ground of misdirection of the learned judge. The action of trover assumes that the plaintiff has some good ground of complaint. As against a wrong-doer, the plaintiff might have a good cause of action; but there was no LOCK, Lord Chief Baron, and the rest of the GASKELL V. SEFTON. SHERIFF'S FEES-KEEP OF HORSES SEIZED. A sheriff having seized horses under a fieri facias, a third party claimed them; whereupon an interpleader order was made, directing the sheriff, |
