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for debt of
wise, to the said banking company, large sums of money in Against respect of the said banking account, and thereby satisfied the executor plaintiff's claim in respect of the alleged balance of £371 2s., the testaby payment thereof.
4. The said defendant denies the 5th paragraph of the statement of claim. 5. The said defendant has fully administered all the personal Defence of
Plene estate and effects which were of the said W. H., deceased, and
adminiswhich have ever come to the hands of the said defendant as trarit. executor as aforesaid to be administered ; and the said defendant had not at the commencement of this suit, nor has he since had, nor has he any personal estate or effects of the said W. H., deceased, in his hands as such executor as aforesaid, to be administered.
6. The said defendant, as such executor as aforesaid, is solely interested in the separate estate of the said W. H., deceased ; and debts due to the late firm have, to a large amount, since the decease of the said W. H. been paid to the defendant T. H., in whose hands and under whose control was and is property to a large amount belonging to the late firm ; and the said T. H., as such surviving partner, is solely liable for the debts and liabilities incurred and owing by the said firm, and there were and are sufficient funds of the partnership property in the hands of the said T. H. to satisfy the plaintiff's claim, and such funds should, in any event, be first exhausted before recourse be had to the said defendant as such executor as aforesaid.
7. Before and at the time of the death of the said W. H., certain deeds and other securities belonging to the separate estate of the said W. H. and to the estate of his wife, had been and were deposited with the said banking company by way of security for any balance that might be owing to the plaintiff on the banking account of the said firm of T. & W. H.; and after the death of the said W. H. the said banking company delivered up the said deeds and securities to his said wife, and to this defendant, as executor of the said W. H., and agreed to take the security of the surviving partner, the said T. H., in discharge of any balance that might be due on the said banking account, and discharged this defendant as such executor from all liability in respect of the balance alleged to be due on the aforesaid banking account, and agreed to look to the said T. H. and to
Against executor for debt of the testator.
the partnership property in the hands of the said T. H., as above mentioned, in respect thereof; and this defendant, relying on the premises, and with the knowledge and consent of the said banking company, proceeded completely to administer the estate and effects of the said W. H.
Reply. The plaintiff joins issue upon the defendants' statement of defence, save in so far as it contains admissions of the matters. alleged in the statement of claim.
Executrices of Dentist to recover charges for teeth, &c.—For Precedent of this claim, see p. 435.
Action against Administrator for Detinue of Goods by Deceased. Against
1. The plaintiff is a gentleman, now residing at — in the adminis
county of trator for detinue
2. The defendant is the administrator of the estate and and money effects of one Mary S., deceased. lent.
3. From or about 1871 until her death, hereinafter mentioned, the plaintiff occupied partially furnished apartments in the house of the said Mary S., deceased. The plaintiff was possessed of divers articles of household furniture, and of certain pictures, wine, books, papers, memoranda, banker's pass book, and other documents and writings, the whole of which were in the house of the said Mary S., deceased. The plaintiff cannot at present state the particulars of such property, the whole of it being, as hereinafter mentioned, in the possession of the defendant, and the plaintiff possessing no list thereof, and not being able to give an accurate list from memory.
4. In the month of November, 1877, the said Mary S. died, and letters of administration of her estate were subsequently duly granted to the defendant.
5. The plaintiff shortly afterwards applied to the defendant as administrator as aforesaid, and required and demanded of him that he should give up and return to the plaintiff the property in paragraph 3 hereof mentioned.
6. The defendant, however, refused to return, and has not returned, the said property, or any part thereof, to the plaintiff, and he wrongfully kept and detained, and still wrongfully keeps Against and detains, the same from the plaintiff.
trator for 7. The plaintiff during the lifetime of the said Mary S. detinue advanced and lent money to her. Such advances (particulars and money
8. The said sum of £50 has not been repaid.
tioned, or £1000 its value, and £— damages for
its detention. (2.) Also an injunction to restrain the defendant, as admi
nistrator as aforesaid, from dealing with the said
goods, and from detaining them from the plaintiff. (3.) The said sum of £50 mentioned in the said paragraph. (4.) Such further or other relief, &c.
Erecutor Claiming under Lord Campbell's Act for Injuries Causing the Death of his Testator.–For precedent of this claim, see under head Negligence, post, pp. 482—3.
False Imprisonment (a).
False im. 1. The plaintiff is a journeyman painter. The defendant is prisonment a builder, having his building yard, and carrying on business on a charge
of felony. !(a) A total restraint of the liberty of the person for however short a time What con- even by forcibly detaining the party in the streets against his will,” stitutes a will amount in law to an imprisonment (Bird v. Jones, 7 Q. B. 742, 752); false impriand if such imprisonment is unjustifiable it will amount to a false imprisonment. sonment and be actionable. An arrest or imprisonment, however, is not confined to a corporal seizure." If a person send for a constable and give another in charge for felony, and the constable tell the party charged that he must go with him, on which the other, in order to prevent the necessity of actual force being used, expresses his readiness to go, and does actually go, this is an imprisonment.” (Per Abbott, C. J., in
at ; and for six months before and up to the 22nd of prison- August, 187—, the plaintiff was in the defendant's employment ment on a charge of as a journeyman painter. felony. 2. On the 22nd of August, 187—, the plaintiff came to work
TION OF A
Pocock v. Morse, Ry. & Mo. 321.) But though there need not be an actual restraint
seizure of the person to constitute an imprisonment, the restraint on his will not
liberty must be total. A partial restraint, as by preventing a person constitute advancing along a particular pathway, while allowing him to retire, is an impri
not enough. (Bird v. Jones, suprà.) It may be taken that primâ facie sonment.
any imprisonment of another is unlawful and actionable, and it lies upon
the defendant first to plead and then to prove facts justifying the imClasses of
prisonment; and this introduces the subject of defences to this kind of defences to action. These defences may be briefly adverted to under two heads :action for
First, where the defendant justifies on the ground that he was executing false impri- legal process ; and secondly, where the defendant cannot plead that he
was actually executing a warrant, but can set up that he had reasonable and probable cause for believing that the plaintiff had committed an
offence for which he was by law justified in arresting him. I. ARREST Coming to the first of these heads of defence, a distinction must be drawn IN Execu- between the subordinate ministers of the law, as constables and bailiffs,
and those who set them in motion. The law may be stated in a few words WARRANT. to be that, where sheriffs, bailiffs, or constables act within the terms of the
warrant issued to them, and arrest the right persons, and use no more Responsi
violence than is absolutely necessary, they are protected, although the bility of
warrant is in some respects irregular, and may even have been issued sheriffs,
without jurisdiction. (See the 13 & 14 Vict. c. 61, s. 19, the 19 & 20 Vict. constables,
c. 108, s. 60, as to bailiffs of county courts, and the 24 Edw. 2, c. 44, s. 6, mak
as to constables.). With respect to justices issuing the warrant, the law is ing an
otherwise. If a justice issues a warrant, having no jurisdiction in the arrest.
matter, and the plaintiff is arrested on such warrant, the constable exeOf justices cuting the same is free from responsibility, but the justice is liable in an issuing a action ; but if the justice have jurisdiction, he can only be made liable warrant of in an action by the plaintiff alleging and proving that he acted maliarrest. ciously and without reasonable and probable cause. It is important to
bear in mind that where a justice is sued for anything done by him in his office, the plaintiff may be called on to show, as conditions precedent to his right of suing, (a) that he has given the justice one month's notice of action ; (b) that any conviction or order made against him upon the warrant has been quashed ; and it is also important to remember that the justice when sued can tender a sum of money as amends, and raise all the defences which he means to rely on by the general plea of “ Not
guilty by statute.” (See the 11 & 12 Vict. c. 44, ss. 10, 11, and Addison Liability of on Torts, c. 15, sec. 3.) This is one of the few cases where, under the new persons
system of pleading, this general mode of setting up a defence is allowed. setting the
Where the justice or judicial officer has not acted altogether mero motu, justice in
but has been in the first instance set in motion by another, it will depend motion.
upon a number of circumstances whether such person is liable as well as the justice or not. No doubt if he acted maliciously and without reasonable and probable cause, he would be liable in damages for a malicious arrest, and perhaps for a malicious prosecution ; but if a man merely lays a complaint before a justice in a matter over which the justice has:
general jurisdiction, and the justice grants a warrant upon which the person charged is arrested, the party laying the complaint is not responsible for a false imprisonment, although the particular case is one in which the justice had no authority to act." (Carratt v. Marley, 1 Q. B. 18.)
as usual in the defendant's yard, at about six o'clock in the False immorning
on a charge 3. A few minutes after the plaintiff had so come to work, the of felony. defendant's foreman, X. Y., who was then in the yard, called the plaintiff to him, and accused the plaintiff of having on the previous day stolen a quantity of paint, the property of the defendant, from the yard. The plaintiff denied the charge, but X. Y. gave the plaintiff into the custody of a constable, whom he had previously sent for, upon a charge of stealing paint.
4. The defendant was present at the time when the plaintiff
So far attention has been directed to the class of cases where an II. ARREST imprisonment is justified on the ground that the defendant was acting in the execution of a warrant, but in certain cases a man is justified in
WARRANT. arresting another although he is not the holder of a warrant for his arrest. The chief of these cases are : 1. Where a constable has reason to believe that a felony has been committed, and that the plaintiff has committed it, he may arrest him without warrant. 2. Where a felony has actually been committed and there is reasonable and probable cause for believing that the plaintiff has committed it, a private individual may arrest another without warrant. 3. Either a constable or a private individual may while an affray is going on, and to prevent the continuance of a breach of the peace, make an arrest. 4. By the Malicious Injuries to Property Act (24 & 25 Vict. c. 97, s. 61) it is provided that any person found committing an offence under that Act may be arrested without warrant, (a) by a constable; or (b) by the owner of the property injured, his servant, or any person authorised by him, as the occupier. 5. Any person found committing an indictable offence, whether a felony or a misdemeanour, in the night-time, i.l., between 9 p.m. and 6 a.m., may be arrested without a warrant. 6. Vagrants may be arrested without warrant. Cases 7. So any person guilty of riotous or indecent behaviour in any church when this or chapel.* 8. By the 2 & 3 Vict. c. 47, s. 54, special powers are given is justifito the metropolitan police to arrest persons committing numerous offences able. of a disorderly kind, enumerated in the Act within the Metropolitan limits. 9. Special powers of arrest are also given by the Merchant Shipping Acts to the masters of passenger ships. (See the 25 & 26 Vict. c. 63, s. 37.) 10. A bail whenever he pleases may render his principal into custody. 11. By the Larceny Act, 24 & 25 Vict. c. 96, s. 103, and by the Act relating to the coin, 24 & 25 Vict. c. 99, s. 31, any persɔn may arrest a person committing an offence against either of these Acts. 12. It is lawful to restrain the liberty of a dangerous lunatic without any warrant or authority, but this can only be done for a short time. The statutes 8 & 9 Vict. c. 100 ; 16 & 17 Vict. c. 96, establish a mode of proceeding with respect to the confinement of lunatics, and any deviation from it will render the detention of a lunatic a false imprisonment. 13. Many Acts of Parliament under which railway companies are incorporated, authorise an officer of the company to arrest any person whose name and residence shall be unknown, and who shall commit any offence against the Act, and convey him before a justice without any other warrant or authority than that given by the Act. Except in the cases enumerated, and perhaps one or two other, it is not lawful to arrest or imprison with out a warrant ; thus no one may arrest another for a misdemeanour, as perjury or conspiracy or false pretences, without a warrant. (Matthews 5. Biddulph, 3 M. & G. 390.)