55 N.H. 571 | N.H. | 1875
Lead Opinion
Amendment — Pleading — False imprisonment. The defendant objects to the proposed amendment, not because the form of the action is changed, nor that the identity of the cause of action is not preserved, — for the amendment is open to neither of these objections, — but because another or new claim of the same character as the original claim is introduced by the amendment. If this objection is well taken, the amendment cannot be allowed, although the declaration might originally have been framed, as the plaintiff now desires to have it, by his amendment.
A person may be guilty of an assault merely, without being guilty of a battery; but every battery includes an assault, — and so a person may be guilty of an assault and battery, without being guilty of the unlawful detention, or, as it is commonly called, the false imprisonment of the person assaulted, because every act of assault and battery does not include the unlawful detention of the person injured; but every unlawful detention of an individual necessarily includes at least a technical assault and battery; — so all the forms in the books for false imprisonment contain also the charge of assaulting and beating. 2 Chitty's Pl., 423*; Morrison's Jus. Sheriff 95; Bell's Jus. Sheriff 41. "A very frequent and important instance of assault and battery is that technically termed false imprisonment, which consists in the unlawful restraint of a person contrary to his will, either with or without process of law." 1 Hill. on Torts 207.
Bouvier's Law Dict., art. Battery: "Any unlawful beating, or other wrongful physical violence or constraint, inflicted on a human being without his consent." 2 Bish. Crim. Law, sec. 62;
Comayns's Digest, Battery, E. 1: "For a Threat, Assault, Battery, or Mayhem, the Party shall have a Remedy by Action of Trespass, quare minas imposuit ita quod," c. Lut. 1428.
Quare in ipsum insultum fecit et ipsum verberavit, c. — F. N. B. 86, I; and such is the form, though he does not wound him — F. N. B. 86, K; quare in ipsum insultum fecit, verberavit, vulneravit, et imprisonavit, c. — F. N. B. 86, K; quare cepit, imprisonavit, et imprisona quo-usque finem, c., fecisset detinuet — F. N. B. 86, K.
Unlawful or false imprisonment, then, is an incident of assault and *573
battery. It is an additional particular of the injuries complained of, omitted in the original draft of the declaration, although it adds another item to the list of grievances set forth. "So long as the cause of action is not changed, and the court can see that the identity of the cause of action is preserved, the particular allegations of the declaration may be changed and others superadded in order to cure imperfections and mistakes in the manner of stating the plaintiff's case." Stevenson v. Mudgett,
My conclusion is, that the amendment is admissible.
The plaintiff has demurred, generally, to the special pleas. No causes have been assigned wherein the pleas are not sufficient. The question is not material, for the plaintiff having amended his declaration, the defendant has the right to amend his pleas or plead anew. If the pleas are defective, the defect is informal only; and, under the authority of Berry v. Osborn,
Concurrence Opinion
In this action the question whether the amendment is admissible is to be determined by the ordinary rule. Is the matter proposed to be introduced, an additional description of the same cause of action, or a description of a different cause of action? In this case, that must be determined by the language used. It is evident that all which is alleged in the amended declaration might well enough be one continuous transaction. The mode in which the different parts are connected together by the conjunction "and," and the construction of the sentence, evidently relate to a single continuous transaction, of which one incident, viz., the imprisonment, having been at first omitted from the declaration, is introduced by the amendment. Considered in this view, the amendment only, completing the description, is clearly admissible. *574
If at the trial there should be an attempt made to introduce the separate transactions, it would be the duty of the court to exclude the evidence.
The rule is too well established to need the citation of authorities. The whole difficulty is in the application. In this case the amended declaration, is its terms, describes a single transaction, and at the trial there will be no difficulty in confining the proof accordingly.
The amendment, of course, must be upon terms of indemnity. The pleas do not fully answer the amended declaration, and the defendant must have leave to amend his pleadings to meet the additional matter.
As the declaration originally stood, I do not see why the pleas are not sufficient, and no objection is suggested in the plaintiff's brief. The new pleading, then, being rendered necessary by the amendment, the terms of the amendment ought to be reasonable indemnity against the expense and delay.
LADD, J., concurred.
Amendment allowed and demurrer overruled.
