Opinion
(December Term, 1837.)
An arrest is an actual interference with the person, or a compulsory restraint of it. But these terms are not identical; and where an officer, having a warrant, went to the defendant, and informing him of the fact, said to him, "do you submit?" and he answered, "certainly," and went with the officer before a magistrate, and there entered into a recognizance to answer the charge; it was held, to be such an arrest as amounted to an imprisonment of the person.
A warrant to arrest persons neither named nor described, is void. And one reciting that A. B. "and company" had committed an offence, and commanding the officer to apprehend "said company," will not justify the arrest of any person; for the mandatory part does not direct the taking of A. B. by name, or by any description, and it is not helped by the recital; for the words "said company," refer only to the company with A. B. and not to A. B. himself.
Criminal process, defective for uncertainty in the description of the defendant, is not aided by the act of 1794, ( Rev. ch. 414,) providing that warrants shall not be set aside for want of form; for that act, in its terms, applies to civil process only; and, besides, the description of the defendant is matter of substance.
In an action of trespass and false imprisonment for an unlawful arrest, it is admissible to prove that the plaintiff paid the defendant a certain sum of money on account of the transaction for which the arrest was made, in order to show the animus which influenced the proceedings.
THIS was an action of TRESPASS VI ET ARMIS, for an assault and false imprisonment. Pleas, the general issue, and justification under process.
W. A. Graham and Boyden, for the defendants.
J. T. Morehead, contra.
Upon the trial of the cause at Rockingham on the last Circuit, before his Honor Judge SAUNDERS, it appeared in evidence that the defendant, Young, for the purpose of arresting the plaintiff and others on a criminal charge, obtained a warrant from a magistrate, which, after reciting that the plaintiff "and company," had wounded and beat a slave of the defendant, commanded the defendant Boyd, (who was not a peace officer, but to whom the warrant was specially directed,) "to apprehend the said company, and them safely keep so as to have them," before a justice of the peace, "to answer the said complaint, and to be dealt with according to law." The defendant Boyd, under colour or by virtue of this warrant went, accompanied by several persons, who were prepared to aid him in case of necessity, in search of the plaintiff, and when drawing near him, left the others a short distance behind, but yet within hearing. Boyd then inquired for the plaintiff, and on the plaintiff answering to his name, informed him that he, the defendant, had a precept against him, and asked, "do you submit?" The plaintiff answered "certainly;" and accompanied Boyd to a magistrate's, where the warrant was returned. The magistrate, after hearing the case, determined to bind the plaintiff over; and the plaintiff, not being immediately ready with sureties to join him in a recognizance, at the suggestion of the magistrate, deposited with the defendant Boyd, the sum of three hundred dollars as a pledge for obtaining security and entering into a recognizance, on the next day. The money, by the consent of the plaintiff, was then put into the hands of the magistrate; and on the succeeding day the recognizance was given and the money returned.
It further appeared, that after some conversation between the plaintiff and the defendant Young, concerning a compromise, and after Young had said that he had no power to stop the prosecution, the plaintiff paid Young one hundred and fifty dollars, but on what terms, and for what purpose, did not appear, except that it was on account of the transaction charged in the warrant.
His Honor instructed the jury, that although words alone could not constitute an arrest, yet if the defendant Boyd, followed by persons who were prepared to assist him, if necessary, to arrest the plaintiff, told the plaintiff that he had a precept, and asked of the plaintiff whether he submitted, and thereupon the plaintiff did submit himself into custody, these circumstances, collectively, did constitute an arrest. And further, that whether the submission of the plaintiff, was a submission into custody or not, was a matter which might be collected from the subsequent conduct of the parties to this arrest. He also charged, that as the warrant commanded the defendant Boyd to take no person by name, or by description, other than by the vague description "company," it did not give an authority to arrest any person. The jury found a verdict for the plaintiff: and the defendants moved for a new trial because of a misdirection of the Court as to the arrest and warrant; and because of the reception of evidence as to the hundred and fifty dollars paid by the plaintiff to the defendant Young. The motion was overruled, and the defendants appealed.
— The first error assigned in this case for the reversal of the judgment rendered in the Superior Court is, that the jury was misdirected as to the nature of the restraint which would in law constitute an imprisonment. For the defendant it is insisted, that nothing can constitute an arrest amounting to an in injurious imprisonment, short of an actual interference with the person, or compulsory restraint thereof; and that upon the testimony there was no proof of actual interference with the person of the plaintiff, nor that the submission of the plaintiff was other than a voluntary submission to appear before a magistrate for the investigation of the charge brought against him. Many cases have been produced to establish the legal position taken by the defendants' counsel, which we deem it unnecessary particularly to notice, for we think the position properly understood to be correct. There must be an actual interference with one's person, or compulsory restraint, to constitute imprisonment. But what is meant by compulsory restraint? It is not identical with actual interference, or it would be a superfluous description. Is it more or less than submission to restraint without incurring the risque of personal violence and insult by resistance? If an officer, or one claiming a right to obedience, require of another to accompany him, this alone is not an arrest. As yet, there is no compulsion, nor restraint. Compulsion is indeed intimated, but is not exerted. But when obedience is yielded to that command — when, in submission to it the person commanded accompanies him who gives the order, the movement is by compulsion, and not through choice, and his person is then under restraint. The distinction is well taken in Buller's Nisi Prius, page 62, "bare words will not make an arrest; but if a bailiff who has process against one, says to him, when he is on horseback, or in a coach, `you are my prisoner, I have a writ against you;' on which he submits and goes with him, though the bailiff never touched him, it is an arrest, because he submitted; but if, instead of going with the bailiff, he had gone or fled from him, it would be no arrest, unless the bailiff had laid hold of him." In the present case, there was abundant evidence of restraint by compulsion. The defendant Boyd, claiming to have an authority by precept to take the plaintiff's person, and having a force at hand to enable him to execute the alleged precept, announces his authority, and requires submission. It is yielded — the plaintiff goes with the supposed officer, as a prisoner. The precept is returned, executed, and the plaintiff is kept in custody, until he relieves his person from restraint, first, by a conditional deposit of money, and then by entering into recognizances for making his appearance in Court, to answer for the criminal charge upon which he was brought before the magistrate.
The next and most important point in the cause is, whether the arrest of the plaintiff was by lawful authority. His Honor instructed the jury, that as the warrant commanded the defendant Boyd to take no person by name or by description, other than by the vague description "company," it did not give an authority to arrest any person. It has not been questioned, and it cannot be questioned, but that a warrant to arrest persons not named nor described with reasonable certainty, is altogether void. The magistrate who acts upon the information laid before him is to judge whether a warrant shall issue, and against whom it shall issue. The authority of the officer, or person acting under the warrant is purely ministerial. The magistrate must give certain directions as to the persons to be arrested — and he who acts under the mandate must arrest those only whom the mandate directs him to arrest. 1st Hale's Pleas of the Crown, 580. Haw. B. 2, ch. 13, sect. 10. Money v. Leach, 1 Bl. 562; 3 Burr. 1692. Wilkes v. Wood, Loft. 18; 11 State Tri. 323. This certainty in warrants has been deemed so essential to the liberty of the citizen, that our Constitution denounces all general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of the fact committed — "or to seize any person or persons not named," and whose offence is not particularly described and supported by evidence, as dangerous to liberty, and not to be granted. Declaration of Rights, sect. 11. But the counsel for the defendants contend, that in this warrant the plaintiff is named; and that although the warrant, on the face of it, is illegal and null, so far as it commands the arrest of uncertain persons, it is a valid warrant for the arrest of the plaintiff. We do not deem it necessary to determine whether a warrant containing a mandate forbidden by our Bill of Rights, is altogether null — or whether it is null only so far as it violates that prohibition. For, admitting that it may be good in part — a point not free from doubt — we feel ourselves bound to hold, that the warrant in this case did not command the arrest of the plaintiff, by name, or by certain description. The mandatory part of the warrant — the precept — is "to apprehend the said company, and them safely keep, so that you have them to answer," c. This is unquestionably per se altogether vague and uncertain. Is it rendered certain by means of the reference contained in the words prefixed to company, "the said company?" On looking into the previous parts of the warrant, all that we find to which a reference can be applied is in the recital that complaint had been made of a battery committed by John Mead and company. The "said company," in the precept means the company mentioned in the recital. It can mean in the precept only what it means in the recital. It comprehends no more in the one than it embraces in the other. In the recital it means and comprehends the associates or companions of John Mead only, and not Mead himself; in the precept, therefore, it means and comprehends these associates only. Who are they?
It has been urged, that the warrants of magistrates ought not to be examined in the spirit of minute criticism; and in support of this proposition, we are referred to the 16th sect. of the act of 1794, ( Rev. ch. 414,) by which it is declared, "that no attachment, warrant, or other process issued by a justice of the peace, shall be set aside for the want of form, if the essential matters required are set forth in such process." This enactment, as such, must be understood as applying only to the subject-matter of the act, which is an act directing the mode of recovering debts before justices of the peace. But we adopt unhesitatingly the principle contained in the enactment, as one recognized by the common law in reference to the subject before us. But is the objection to the validity of this warrant one merely for want of form? By the best established principles of the common law — principles deemed so important, as to be embodied in our Constitution, and placed beyond the reach even of legislation — certainty of the person so to be seized, is "an essential matter required," in every warrant to apprehend a man for an imputed crime. In the judgment of the Court, there was no error in this part of the judge's charge.
Another point has been taken by the defendants, that the judge erred in permitting testimony to be heard by the jury of the payment by the plaintiff to the defendant Young, of one hundred and fifty dollars on account of this business. In answer to this objection, it would be sufficient to say, that it does not appear who offered this testimony, whether the plaintiff or the defendant; and that if it could be inferred from the case, that it was offered by the plaintiff, it does not appear that objection was made to the reception of it. But waiving these answers, we are at a loss to see on what good ground either party could object to its being brought before the jury. It was a part of the transaction to be investigated, material to show the animus which influenced the proceedings — whether an honest purpose to vindicate an acknowledged and severe injury, or a corrupt scheme to extort money by an oppressive prosecution. In what light it was considered by the jury, we have no means of knowing. But it was a circumstance, in connection with all the other circumstances of the case, fit to be considered and weighed in fixing the amount of damages. The judgment is affirmed.
PER CURIAM. Judgment affirmed.