Goodell v. Tower
58 A. 790
Vt.
1904
Check Treatment
Tymír, J.

This action is trespass for false imprisonment. The question arises upon the complaint upon which the warrant was issued.

V. S. 5001 reads: “Sheriffs, deputy sheriffs, constables, police officers, other prosecuting officers and all officers of societies for the prevention of cruelty to animals shall prosecute violations of the preceding sections of this chapter which come to their notice or knowledge.”

*64The complaint was made by William W. Tower, who-described himself therein as “officer or agent of the Society for the Prevention of Cruelty to Animals within and for the County of Rutland,” and signed it, “William W. Tower, agent,” and thereupon the jústice issued the warrant. It could not be maintained, and it is not insisted that Tower had authority under the statute’ to- make the complaint as agent, therefore we are not called upon to decide whether a legally organized society of this kind might confer authority upon a certain officer to make complaint for a violation of this statute. That question does not arise.

1. As Tower had no legal authority to- make the complaint, it follows that the justice had no jurisdiction of the subject matter and no authority to issue the warrant. And it is the law in England and in this country that where a justice of the peace or other inferior magistrate acts without his jurisdiction in issuing a warrant, to the injury of another person, the magistrate is personally liable. 2 Am. & Eng. Ency. 897, and cases cited. Morrill v. Thurston, 46 Vt. 732; Carlton v. Taylor, 50 Vt. at page 227; Vaughn v. Taylor, 56 Vt. 111. The rule is again recognized in Banister v. Wakeman, 64 Vt. 203, 23 Atl. 585.

2. It is contended in defendant Hastings’ behalf that he did not restrain the plaintiff of his liberty. The trial court found that, having the complaint and warrant signed respectively by the other two defendants, he met the plaintiff and stopped him by speaking to- him as he was driving along on a business errand, read the paper to him and told him he would have to go with him, Hastings; that the plaintiff told the officer that he would have to get some one to take his team; that the officer permitted him to do his errand, but directed him to return as soon as he could; that the plaintiff then drove *65along; that Hastings became impatient, and went to meet him, turned in behind the plaintiff’s team and followed him to the village; that he went to the place of trial with the plaintiff, delivered the paper to the justice and informed him that the plaintiff was present; that this was all that Hastings did besides making his return upon the warrant; that he understood that the plaintiff was in his custody.

The action of the officer constituted a false imprisonment of the plaintiff. It was not necessary that he should lay his hands upon him. It was sufficient that the plaintiff was within his power and submitted to the arrest. Mowry et al. v. Chase, 100 Mass. 79. Every restraint upon a man’s liberty is, in the eye of the law, an imprisonment, wherever may be the place or whatever may be the manner in which the restraint is effected. 2 Kent’s Corn. 26. And see Pike v. Hanson, 9 N. H. 491, cited in the notes, where it was held that words may constitute an imprisonment, if they impose a restraint upon the person, and he is accordingly restrained and submits. The law is so well settled upon this subject that it is hardly necessary to cite authorities, but the notes in Bissell v. Gould, 19 Am. Dec. 480, 1 Wend. 210, are interesting and clearly elucidate the rule that to constitute an arrest there must be some real or pretended legal authority for taking the party into custody; that he must be restrained of his liberty; that if he submits and is within the power of the officer it is sufficient without an actual touching of his person. This is the rule laid down by Savage, C. in the main case, and it has not been departed from in recent authorities.

3. Defendant Hastings contends that it was within the jurisdiction of the justice to issue such a warrant, that the justice instructed him to serve it, and as it appeared to be in proper form, he was justified in making the arrest. But the *66complaint and warrant constituted the precept, and the complaint being signed by Tower as agent, it was apparent upon its face that the justice had no authority to issue the warrant. Sartwell v. Sowles & Ladd, 72 Vt. 270. The case does not fall within the rule that an1 officer is justified for his actions within the scope of the command of a process appearing on its face to have been regularly issued, as was held in Pierson v. Gale, et al. 8 Vt. 509; 30 Am. Dec. 487. The justice had no more authority to issue a warrant upon this complaint than , he would have had if the complaint had not been signed at all, and it is well settled that while an officer may justify an arrest upon a process that is voidable only, he is liable for false imprisonment when the process is absolutely void for want of jurisdiction in the justice or for other cause. Boeger v. Langenberg, 10 Am. St. R. 322 and notes; Mitchell v. State, 54 Am. Dec. 253 and notes. There is also a full discussion of this subject in the opinion and notes in Savacool v. Boughton, 21 Am. Dec. 181 and in 12 Am. and Eng. Ency. 744. This rule was recognized by this court in Churchill v. Churchill, 12 Vt. 661, and in Tenney v. Harvey & Smith, 63 Vt. 520, 22 Atl. 659.

4. Upon the authorities all the defendants are liable. It is laid down in 2 Add. on Torts, 41, that: “All persons aiding and assisting in the unlawful confinement of another are responsible in damages for the trespass, although they had nothing to do with the original arrest, and had no* knowledge that the arrest and imprisonment were unlawful at the time they had a hand in it.” In the notes this author says that a person who aids or abets an unlawful arrest is liable for false imprisonment. It was held in Bissell v. Gould, supra, that all persons who are concerned in an illegal arrest are trespassers. In 12 Am. & Eng. Ency. 75 i, the rule is stated and supported *67by many authorities cited in the notes that: “A person who causes, instigates and procures an unlawful imprisonment is liable in damages therefor. Although, it has been held, the defendant himself did not in person impose the restraint upon the plaintiff, if he is the moving cause of' the imprisonment he will be held responsible for it.” Von Ketler v. Johnson, 57 Ill. 109, cited by plaintiff is an authority upon this point.

The case shows that the plaintiff was tried by a jury in the justice’s court, convicted and fined, and that he appealed the case to the county court, where it was finally dismissed.

5. We are unable to find from the record that all the damages found for the plaintiff in the trial court were not the natural and proximate result of the defendants’ wrongful acts. The plaintiff was entitled to compensation for loss of time, and for' mental suffering without a special allegation.

Judgment affirmed.