v. POWELL Denman, J. to the defendant driving his carriage on the wrong side of the 1891. road, and the parties not being able to see each other; and that STANLEY if the defendant had kept his right side there was ample room for the carriages to have passed without injury.' The report goes on to state: But it did not appear that blame was imputable to the defendant in any other respect as to the manner of his driving. It was therefore objected for the defendant, that the injury having happened from negligence and not wilfully, the proper remedy was by an action on the case, and not of trespass vi et armis; and the plaintiff was thereupon nonsuited.' On the argument of the rule to set aside the verdict the whole discussion turned upon the question whether the injury was, as put by Lawrence, J., at p. 596 of the report, immediate from the defendant's act, or consequential only from it, and in the result the nonsuit was set aside. But it clearly appears from the report that there was evidence upon which the jury might have found negligence, and indeed the defendant's counsel assumed it in the very objection which prevailed with Lord Ellenborough when he nonsuited the plaintiff. There is nothing in any of the judgements to show that if in that case a plea had been pleaded denying any negligence, and the jury had found that the defendant was not guilty of any negligence, but (for instance) that the accident happened wholly through the darkness of the night making it impossible to distinguish one side of the road from the other and without negligence on either side, the Court would have held that the defendant would have been liable either in trespass or in case. All the cases to which I have referred were before the Court of Exchequer in 1875, in the case of Holmes v. Mather1, and Bramwell, B., in giving judgement in that case, dealt with them thus: As to the cases cited, most of them are really decisions on the form of action, whether case or trespass. The result of them is this, and it is intelligible enough: if the act that does an injury is an act of direct force vi et armis, trespass is the proper remedy (if there is any remedy), where the act is wrongful either as being wilful or as being the result of negligence. Where the act is not wrongful for either of these reasons, no action is maintainable, though trespass would be the proper form of action if it were wrongful. That is the effect of the decisions.' 1 L. R. 10 Ex. 261. 1891. STANLEY v. POWELL. Denman, J. This view of the older authorities is in accordance with a passage cited by Mr. Dickens from Bacon's Abridgement, Trespass, i. p. 706, with a marginal reference to Weaver v. Ward 1. In Bacon the word 'inevitable' does not find a place. If the circumstance which is specially pleaded in an action of trespass do not make the act complained of lawful' (by which I understand justifiable even if purposely done to the extent of purposely inflicting the injury as, for instance, in a case of self-defence) 'and only make it excusable, it is proper to plead this circumstance in excuse; and it is in this case necessary for the defendant to show not only that the act complained of was accidental' (by which I understand, that the injury was unintentional'), but likewise that it was not owing to neglect or want of due caution.' In the present case the plaintiff sued in respect of an injury owing to the defendant's negligence,—there was no pretence for saying that it was intentional so far as any injury to the plaintiff was concerned, and the jury negatived such negligence. It was argued that nevertheless, inasmuch as the plaintiff was injured by a shot from the defendant's gun, that was an injury owing to an act of force committed by the defendant, and therefore an action would lie. I am of opinion that this is not so, and that against any statement of claim which the plaintiff could suggest the defendant must succeed if he were to plead the facts sworn to by the witnesses for the defendant in this case, and the jury believing those facts, as they must now be taken by me to have done, found the verdict which they have found as regards negligence. In other words, I am of opinion that if the case is regarded as an action on the case for an injury by negligence the plaintiff has failed to establish that which is the very gist of such an action; if, on the other hand, it is turned into an action for trespass, and the defendant is (as he must be) supposed to have pleaded a plea denying negligence and establishing that the injury was accidental in the sense above explained, the verdict of the jury is equally fatal to the action. I am, therefore, of opinion that I am bound to give judgement for the defendant. As to costs, they must follow unless the defendant foregoes his right. FALSE IMPRISONMENT. 1845. BIRD v. JONES, 7 Q. B. 742. False imprisonment is a total restraint of the liberty of the person, for however short a time, without lawful excuse. THIS action was tried before Lord DENMAN, C. J., at the Middlesex sittings after Michaelmas Term, 1843, when a verdict was found for the plaintiff. In Hilary Term, 1844, Thesiger obtained a rule nisi for a new trial, on the ground of misdirection. In Trinity Term in the same year (June 5), Platt, Humfrey, and Hance showed cause, and Sir F. Thesiger, Solicitor General, supported the rule. The judgements sufficiently explain the nature of the case. Cur. adv. vult. In this vacation (July 9), there being a difference of opinion on the Bench, the learned judges who heard the argument delivered judgement seriatim. COLERIDGE, J.-In this case, in which we have unfortunately been unable to agree in our judgement, I am now to pronounce the opinion which I have formed and I shall be able to do so very briefly, because, having had the opportunity of reading a judgement prepared by my brother Patteson, and entirely agreeing with it, I may content myself with referring to the statement he has made in detail of those preliminary points in which we all, I believe, agree, and which bring the case up to that point upon which its decision must certainly turn, and with regard to which our difference exists. This point is, whether certain facts, which may be taken as clear upon the evidence, amount to an imprisonment. These facts, stated shortly, and as I understand them, are in effect as follows. A part of a public highway was enclosed, and appropriated for 1845. BIRD v. JONES. 1845. BIRD v. JONES. Coleridge, J. spectators of a boat-race, paying a price for their seats. The plaintiff was desirous of entering this part, and was opposed by the defendant: but, after a struggle, during which no momentary detention of his person took place, he succeeded in climbing over the enclosure. Two policemen were then stationed by the defendant to prevent, and they did prevent, him from passing onwards in the direction in which he declared his wish to go: but he was allowed to remain unmolested where he was, and was at liberty to go, and was told that he was so, in the only other direction by which he could pass. This he refused for some time, and, during that time, remained where he had thus placed himself. These are the facts: and, setting aside those which do not properly bear on the question now at issue, there will remain these: that the plaintiff, being in a public highway and desirous of passing along it, in a particular direction, is prevented from doing so by the orders of the defendant, and that the defendant's agents for the purpose are policemen, from whom, indeed, no unnecessary violence was to be anticipated, or such as they believed unlawful, yet who might be expected to execute such commands as they deemed lawful with all necessary force, however resisted. But, although thus obstructed, the plaintiff was at liberty to move his person and go in any other direction, at his free will and pleasure: and no actual force or restraint on his person was used, unless the obstruction before mentioned amounts to so much. I lay out of consideration the question of right or wrong between these parties. The acts will amount to imprisonment neither more nor less from their being wrongful or capable of justification. And I am of opinion that there was no imprisonment. To call it so appears to me to confound partial obstruction and disturbance with total obstruction and detention. A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only; it may itself be movable or fixed: but a boundary it must have; and that boundary the party imprisoned must be prevented from passing; he must be prevented from leaving that place, within the ambit of which the party imprisoning would confine him, except by prison-breach. Some confusion seems to me to arise from confounding imprisonment of the body with mere loss of freedom: it is one part of the definition of freedom to be able to go whithersoever one pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own. In Com. Dig. Imprisonment (G) it is said: 'Every restraint of the liberty of a free man will be an imprisonment.' For this the authorities cited are 2 Inst. 482; Cro. Car. 2101. But, when these are referred to, it will be seen that nothing was intended at all inconsistent with what I have ventured to lay down above. In both books, the object was to point out that a prison was not necessarily what is commonly so called, a place locally defined and appointed for the reception of prisoners. Lord Coke is commenting on the Statute of Westminster 2nd 2, in prisoná, and says, 'every restraint of the liberty of a freeman is an imprisonment, although he be not within the walls of any common prison.' The passage in Cro. Car.1 is from a curious case of an information against Sir Miles Hobert and Mr. Stroud for escaping out of the Gate House Prison, to which they had been committed by the king. The question was, whether, under the circumstances, they had ever been there imprisoned. Owing to the sickness in London, and through the favour of the keeper, these gentlemen had not, except on one occasion, ever been within the walls of the Gate House: the occasion is somewhat singularly expressed in the decision of the Court, which was that their voluntary retirement to the close stool' in the Gate House 'made them to be prisoners.' The resolution, however, in question is this: that the prison of the King's Bench is not any local prison confined only to one place, and that every place where any person is restrained of his liberty is a prison; as if one take sanctuary and depart thence, he shall be said to break prison.' On a case of this sort, which, if there be difficulty in it, is at least purely elementary, it is not easy nor necessary to enlarge: and I am unwilling to put any extreme case hypothetically: but I wish to meet one suggestion, which has been put as avoiding one of the difficulties which cases of this sort might seem to suggest. If it be said that to hold the present case to amount to an imprisonment would turn every obstruction of the exercise of a right of way into an imprisonment, the answer is, that there must be 1 Hobert & Stroud's Case, Cro. Car. 209. 2 1 Stat. 13 Ed. I. c. 48. 1845. BIRD บ. JONES. Coleridge, J. |