Sec. 401-36. b. OF CIVIL REDRESS FOR FALSE IMPRISONMENT.-False imprisonment is a trespass committed upon the person by unlawful arrest, imprisonment, or illegal restraint of a man's freedom of locomotion. Any restraint upon the actions or personal liberty of another caused by force or threats constitutes false imprisonment, and unless justified as a legal imprisonment, or proper restraint over one in subjection to another by reason of family or other relations makes the person exercising the restraint liable to an action for damages at the instance of the person so wronged. "All that is necessary is that the individual be restrained of his liberty without any sufficient legal cause therefor, and by words or acts which he fears to disregard." It is unnecessary to constitute the wrong that any injury be done to the individual's person, or to his character or reputation; neither is ill-will, malice, or even the slightest wrongful intention necessary, and the confinement or restraint need not be within a prison or within walls, and the person of the individual need not be touched." It is the fact of compulsory submission which brings a person into imprisonment; and impending and threatened physical violence, which to all appearance can only be avoided by submission, operates as effectually if submitted to as if the arrest had been forcibly accom

1 Gelzenleuchter v. Niemeyer, 64 Wis. 316; Bird v. Jones, 7 Q. B. 742; Golibart v. Sullivan, 30 Ind. App. 428; Anderson v. Beck, 64 Miss. 113; Wood v. Graves, 144 Mass. 365; Murphy v. Martin, 58 Wis. 276.

2 Garnier v. Squires, 62 Kan. 321.

plished without such submission. There are cases in which a party who does not submit cannot be regarded as arrested until his person is touched; but when he does submit no such necessity exists."

Sec. 401-37. SAME SUBJECT-WHAT CONSTITUTES LEGAL PROCESS THAT WILL BE A DEFENSE TO AN ACTION FOR FALSE IMPRISONMENT.-When an officer or other person seeks to justify in an action for false imprisonment on the ground of having legal process authorizing the arrest, the burden of proof is on such officer or person to show that the process was lawful, as all actions in restraint of one's personal liberty are presumed unlawful until shown to have been otherwise. The general requi

sites of legal process are said to be: "If the court, out of which the writ issued, has, by its constitution and fundamental laws, jurisdiction—that is, power to take cognizance of and determine such a cause of action as that in which the process was awarded-and authority of law to issue process of that nature, either generally or in particular cases, and the writ be regular on its face, the writ itself will be a full justification for acts done by the officer in its lawful execution."5

3 Per Campbell, J., in Brushaber v. Stegemann, 22 Mich, 266, 269. See also, Bingham v. Lipman, 40 Ore. 363; Greathous v. Summerfield, 25 Ill. App. 296; McDonald v. Franchere Bros., 102 Ia. 496; Smith v. State, 7 Humph. 43.

4 Hicks v. Faulkner, L. R. 8 Q. B. D. 167; Barker v. Anderson, 81 Mich. 508; Jackson v. Knowlton, 173 Mass. 94.

5 Jennings v. Thompson, 54 N. J. L. 56; Rousey v. Wood, 57 Mo. App. 650; O'Neal v. McKenna, 116 Ala. 606; Schultz v. Huebner, 108 Mich. 274; King v. Johnston, 81 Wis. 578.

The following general rules are given by Judge Cooley to determine when process will be void, and therefore be no protection to the officer making an arrest under it:

1. A writ may be absolutely void because it does not emanate from the court or officer purporting to issue it. This may happen because it is forged, or because some unauthorized person has assumed to fill out and issue process in the name of a magistrate.

2. A writ may be void because it proceeds from a court or magistrate having, by law, no jurisdiction of the subject matter, either generally or to the extent to which it has been assumed."

3. The writ may also be void because it emanates from an inferior court or officer, whose jurisdiction is never presumed, but must be shown, and is not shown on the face of the proceedings. In such cases there may have been jurisdiction in fact, but because it is not shown it is as if it did not exist.8

4. The writ may also be void for many other reasons, such as that it is tested of a Sunday or other day which is dies non for such process, or that it was issued without compliance with some statutory requisite which is a condition precedent and shows the defect on its face.

6 Citing, Pierce v. Hubbard, 10 Johns. 405; Rafferty v. People, 69 Ill. 111.

7 Citing, Tellefsen v. Fee, 168 Mass. 188; Strozzi v. Nev. 389; Lueck v. Heister, 87 Wis. 644.

Wines, 24

8 Citing, Jacques v. Parks, 96 Me. 268; Grumon v. Raymond,

1 Conn. 39; Clayton v. Scott, 45 Vt. 386.

And in general the writ which an officer can justify himself in serving must be a valid writ, and those concerned in issuing it must be able by law to justify its issue."

In some cases, a person or an officer may justify an arrest without legal process. Thus, where a felony is discovered in its commission it is not only the right but the duty of any person detecting it to arrest and detain the person committing it. Likewise, if one knows that a felony has been committed, and is in possession of facts indicating the person guilty, he may be justified in arresting such person. In these cases it is said: "An arrest by an officer of the law without a warrant will not constitute false imprisonment if the officer arresting has reasonable grounds to believe that a felony has been committed; but a private person arrests without a warrant at his peril, and it will be a false imprisonment unless it can be shown that a felony has actually been committed."10 Other cases require that the person show that the one arrested committed the felony.1

An arrest without warrant as in case of felonies may be made in case of the commission of forcible breaches of the peace, as riots, and affrays, as these if left unchecked might lead to serious or fatal injuries. And officers may arrest without warrant persons committing misde9 Cooley on Torts, 199, 200.

10 Garnier v. Squires, 62 Kan. 321, 325.

1 Holley v. Mix, 3 Wend. 350; Enright v. Gibson, 219 Ill. 550; Palmer v. Maine Central R. R. Co., 92 Me. 399; State of Holmes, 48 N. H. 377.

2 Baltimore, etc., R. R. Co., Cain, 81 Md. 87; Hayes v. Mitchell, 80 Ala. 183; Tillman v. Beard, 121 Mich. 475.

meanors or offending against the municipal regulations or public decency. It is stated that: "Except in cases of breaches of the peace, the general rule is that a private person cannot arrest without warrant for a misdemeanor or the violation of an ordinance, and that peace officers can only make such arrests when the offense was committed in view of the officer." In some cases it is said he may arrest for misdemeanor if the offender would otherwise escape while a warrant was being obtained.*

As to what the officer should do to keep within the law after having made an arrest without a warrant, the Supreme Court of Indiana says:

"By the rules of the common law a peace officer when he had reasonable or probable cause to believe that a felony had been committed, might arrest the accused person without a warrant; and for making such arrest he was justified, although subsequently it appeared that the party was not guilty of committing the offense. But the power of detaining the person so arrested, or restraining him of his liberty, in such a case is not a matter within the discretion of the officer making the arrest. He cannot legally hold the person arrested in custody for a longer period of time than is reasonably necessary, under all the circumstances of the case, to obtain a proper warrant or order for his further

3 Cooley on Torts, 204, citing, Gambill v. Smuck, 131 Ala. 321; Markey v. Griffin, 109 Ill. App. 212.

4 Franklin v. Amerson, 118 Ga. 860. An officer may not so arrest for a past breach of the peace not committed in his presence, nor for one not committed in his own state. Quinn v. Heisel, 40 Mich. 576; People v. MeClean, 68 Mich. 480.