is, that the judge misdirected the jury in reference to the defendant's justification. After stating that two points were urged on the part of the defendant,-first, that the plaintiff was merely his servant, and that his refusal to deliver over the money of his employer, and to quit his house, rendered it lawful to eject him by force,-secondly, that the plaintiff was guilty of embezzlement, and lawfully taken and held in custody on that charge; the judge proceeds to observe, upon the first, that the plaintiff, as tenant, or as lawful occupier under an agreement not then terminated, of the premises, was not legally liable to be ejected by compulsion and without notice, and that, if he refused to leave the house, the defendant could only eject him by adopting the proper legal proceedings to obtain possession; and, as to the second, he tells the jury that there was no evidence whatever to support or justify the charge of embezzlement. The first ground clearly affords no defence to the action. We must now assume that the defendant was guilty of false imprisonment; and the question is whether he had anything to urge in defence. It clearly was no answer to say that the plaintiff was in possession of his house, and refused to quit; and, though the judge in his summing up treats that part of the case somewhat inaccurately, I do not think that amounts to a misdirection. The substance of the defendant's contention was, that the plaintiff had brought the charge upon himself by his refusal to give up possession of the premises, and to pay over the balance claimed. The judge, in answer to that, says that the plaintiff was not *201] *in the wrong. It certainly was not quite accurate to say that the plaintiff had a right to keep possession; and it would be wrong in the jury to give effect to that: but still I do not think it was such a misdirection in point of law as to justify us in sending the case down to a new trial.

CROWDER, J.-I also am of opinion that our judgment must be for the respondent. The first question is, whether or not we are justified in looking at that which the judge has annexed to the case after the signature. I am clearly of opinion that we are not. When the 15th section of the 13 & 14 Vict. c. 61, and the 145th rule, are looked at, it seems to me to be clear, that, where the parties agree upon a case and sign it, all that remains for the judge to do, is, to attach his signature in order to authenticate it as the document which is to be brought before the superior court. Having signed the case here, all that the judge has subsequently added amounts to nothing. Then, looking at the case as settled and agreed to by the parties, the matter for our consideration is, whether or not the jury were misdirected. The alleged misdirection was threefold,-first, in ruling that there was evidence to go to the jury in support of the plaintiff's cause of action,-secondly, in telling the jury that the plaintiff was imprisoned in his own house, when prevented from going up stairs,-thirdly, in telling them that the plaintiff was tenant, and that the defendant should have taken proper legal proceedings to obtain possession. Now, was the defendant the moving cause of the plaintiff's imprisonment? I think there cannot be any reasonable doubt that he was the author of it. He goes to the premises with a superintendent and a serjeant of police, his object evidently being to get the money. The plaintiff, conceiving that he is entitled to a month's notice, refuses to give up the money. He is at this time in a room with the two police officers, and wishes to go up stairs, but

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is prevented from doing so, and ultimately only permitted to go accompanied by a policeman. The wife hears the superintendent ask the defendant if he is to take the plaintiff into custody; but she does not hear the answer. The plaintiff, however, is carried to the station-house, and afterwards before a magistrate, and a charge of embezzlement made against him. The whole was one transaction: and I think there was ample evidence whence a jury might fairly conclude that the defendant was the author of the imprisonment. That there was some imprisonment, is clear: but it is said that the judge was wrong in telling the jury that the mere restraining the plaintiff from going up stairs amounted to an imprisonment. We must, however, look at all the circumstances to which the summing up has reference. It seems that the plaintiff was not allowed to go up stairs without a policeman. The judge tells the jury that that constitutes an act of imprisonment: and that is very like what is said by Patteson, J., in Bird v. Jones, 7 Q. B. 742 (E. C. L. R. vol. 53). He was dealing with a portion of the imprisonment. Then it is said that the judge further inisdirected the jury, in telling them that the plaintiff was imprisoned in his own house. In one sense it was his own house whilst he was in it: and it can hardly be doubted that he would equally have been restrained from quitting the house without first giving up the balance claimed. I therefore think the judge was right also in that. But, so far as regards the statement that the plaintiff was tenant, I think the learned judge was mistaken. The plaintiff had no right to remain in the house a moment after the defendant chose to order him to quit. But what the judge really meant, was, that the defendant had no right to rely upon this as a justification, because he would be breaking his agreement. Then it is urged [*203 that the damages might have been enhanced by this incorrect way of presenting the case to the jury. I cannot, however, see how that could be so. The complaint in substance is, that the plaintiff was arrested and taken before a magistrate upon an unfounded charge of embezzlement. That is a grave charge, and one which would well warrant a jury in giving very considerable damages. Upon the whole, I see no sufficient ground to justify us in sending the case down to a new trial, and therefore the respondent must have judgment.

WILLES, J.-I am of the same opinion. There are, undoubtedly, some expressions in the course of the summing up which taken by themselves could hardly be justified. It would, however, be unfair to apply a strict construction to those expressions, when it is considered that they are remarks made in reference to the facts. The judge took a strong view in favour of the plaintiff, in consequence of the breach of agreement by the defendant; and it was in reference to that the expressions complained of were used. The first statement of law which is objected to, is, as to whether or not there was an imprisonment of the plaintiff in his house, whether the imprisonment commenced when he was told that he could not go up stairs. I cannot doubt that the imprisonment did commence at or immediately after the time of the refusal to permit the plaintiff to go up stairs. It appears that the defendant wished to obtain a settlement of accounts with the plaintiff; and that a disagreement arising between them as to the notice the plaintiff was entitled to, and the plaintiff refusing in consequence to hand over the balance claimed by the defendant, the latter went away, and shortly afterwards returned

*204] *accompanied by two policemen. His object clearly was to intimidate the plaintiff. The superintendent demanded the money,' and, upon the plaintiff refusing to part with it, on the ground that he had not received due notice, he is taken into custody and carried before a magistrate charged with embezzlement. It would be asking one to come to a conclusion quite contrary to one's common sense, to suppose that the police took upon themselves to arrest the plaintiff, and to enter such a charge against him, without being desired by the defendant to do so. Whilst in the house in a room with the two policemen, he was refused permission to go up stairs; and ultimately he seems to have been allowed to go, but accompanied by an officer. I think it is impossible that, upon these facts, any one can doubt that it was meant to be conveyed to the mind of the plaintiff that he should not go out of the presence or control of the officers. That in my opinion clearly amounts to an imprisonment. There is a great deal of learning in the books as to whether or not there can be an arrest and imprisonment without actually touching the party. In Arrowsmith v. Le Mesurier, 2 N. R. 211, it appeared that a warrant having been granted by a magistrate for apprehending the plaintiff upon a charge of a conspiracy to sue out a fraudulent commission of bankrupt, a constable went with the warrant to the plaintiff's house and showed it to him; that, after conversing some time with the constable, the plaintiff desired to have a copy of the warrant, which the constable permitted him to take, after which the plaintiff attended the constable to the magistrate, and, after being examined upon the subject of the charge, was dismissed, about six hours after the warrant was first shown to him; and that the constable never touched the plaintiff. The jury having found for the defendant, in discharging a rule for a new trial, *Sir J. Mansfield said: "I can suppose *205] that an arrest may take place without an actual touch, as, if a man be locked up in a room;(a) but here the plaintiff went voluntarily before the magistrate. The warrant was made no other use of than as a summons. The constable brought a warrant, but did not arrest the plaintiff. How can a man's walking freely to a magistrate prove him to be arrested? I think that the jury have done justice." I notice that case in order to express my dissent from the doctrine it lays down. It appears to me that the later case of Grainger v. Hill, 4 N. C. 212 (E. C. L. R. vol. 33), 5 Scott 561, states the law upon this subject more accurately. The facts of that case were shortly these:-In September, 1836, the plaintiff by deed mortgaged to the defendants for 801. a vessel of which he was owner as well as captain. The money was to be repaid in September, 1837; and the plaintiff was in the mean time to retain the register of the vessel, in order to pursue his voyages. In November, 1836, the defendants, under some apprehension as to the sufficiency of their security, resolved to possess themselves of the ship's register, and, for this purpose, after threatening to arrest the plaintiff unless he repaid the money lent, they made an affidavit of debt, sued out a capias endorsed for bail in the sum of 95l. 178. 6d. in an action of assumpsit, and sent two sheriff's officers with the writ to the plaintiff, who was lying ill in bed from the effects of a wound. A surgeon present perceiving he could not be removed, one of the defendants said to the

(a) See per Lord Hardwicke, in Williams v. Jones, Cas. temp. Hardw. 301.

In the

sheriff's officers, "Don't take him away, leave the young man with him." The officers then told the plaintiff that they had not come to take him, but to get the ship's register; but that, if he failed to deliver the register, or to find bail, they must either take him or leave one of the officers with him. The plaintiff being unable to pro[*206 cure bail, and being much alarmed, gave up the register: and the court held that this amounted to an arrest. Tindal, C. J., there said,"Without actual contact, the officer's insisting that the plaintiff should produce the register, or find bail, shows that the plaintiff was in a situation in which bail was to be procured; that was a sufficient restraint upon the plaintiff's person to amount to an arrest. The authority in Buller's Nisi Prius, p. 62, goes the full length. If the bailiff who has a 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; upon which he submits, turns back, or goes with him, though the bailiff never touched him, yet it is an arrest, because he submitted to the process. present case, if the door of the room had been locked, nobody could doubt that that would have been an imprisonment. The defendant coming to the house with two officers, the plaintiff being there, and submitting to their control, it was the same as if he had actually been locked up in the room. That being the proper view of the facts, the judge observes that "the way in which the plaintiff had been constrained in his own house, and the restraint put upon his person, by refusing him permission to leave the room and go up stairs in his own house, was in itself an imprisonment, independent of his being conveyed before a magistrate." I think the judge must be considered as having here adopted the view of the case taken by the defendant's advocate: and, though it would have been more correct to have told the jury, that, if the substance of the transaction was that the plaintiff was restrained from leaving the room without permission or without the attendance of a constable, it amounted to an imprisonment, yet, giving a fair and reasonable *construction to the summing up, it seems to me that it is not open to exception. The judge does not profess to be [*207 laying down a principle, but rather to be discussing and explaining the law with reference to the facts of the case. The other exception to the summing up is, that the judge was wrong in telling the jury that the plaintiff had such an interest in the premises that he could not be turned out without recourse being had to the proper legal proceedings. In this respect, I think the judge was mistaken. The plaintiff was not in any sense tenant to the defendant. He might have been put out at any time. But it does not follow, that, because a judge in the course of his summing up lays down a wrong proposition, that there must necessarily be a new trial. This was not a matter by which the jury could have been misled, and therefore no ground for setting aside the verdict. With regard to the statement added to the case by the judge, I entirely agree with my learned Brothers that we ought not to look at it.

BYLES, J.-I am glad the court has been enabled to come to the conclusion that there ought to be no new trial in this case. It appears that the defendant was the owner of a beer-shop, and that he let the plaintiff in as his servant at certain weekly wages, subject to a month's notice. It may be that under this agreement the plaintiff was not in any sense the defendant's tenant. But, in popular language, he was

the occupier of the house; and it may be said to have been "his own house" whilst he so occupied it. The plaintiff would clearly have no right to continue in possession after the relation of master and servant between him and the defendant had been severed. But the observations of the judge are not to be scanned with the same strictness as on a bill *208] of exceptions. In the first place, the *jury were told that the circumstances proved before them amounted to an imprisonment: and I am clearly of opinion that there was ample evidence of all the acts of imprisonment insisted upon. The second objection to the direction was, that the judge told the jury that the plaintiff was imprisoned, not by "being," but when prevented from going up stairs. I think, for the reasons given by my learned Brothers, and especially those given by my Brother Crowder, that there was abundant evidence that the plaintiff was imprisoned in his own house. As to the third point, it seems to me, that, in one sense, the direction was too favourable to the defendant. And, at the most, the judge was guilty of a mere inaccuracy of expression in a matter not at all affecting the damages which the jury would be likely to award upon a new trial. I therefore agree with the rest of the court in thinking that there should be judgment for the respondent. And I cannot help observing that the defendant was guilty of a very reprehensible abuse of criminal process for the purpose of enforcing a civil right. Appeal dismissed, with costs.

"It is not necessary to constitute false imprisonment, that the person restrained of his liberty should be touched or actually arrested if he is ordered to do or not to do the thing, to move or not to move against his own free will, if it is not left to his option to go or stay where he pleases, and force is offered or threatened, and the means of coercion are at hand, ready to be used; or there is reasonable ground to apprehend that coercive means will be used if he does not yield. A person so threatened need not wait for its actual application. The submission to the threatened and reasonably to be apprehended force, is no consent to the

arrest, detention, or restraint of the freedom of his motions—he is as much imprisoned as if his person was touched, or force actually used; the imprisonment continues until he is left at his own will to go where he pleases, and must be considered as involuntary, till all efforts at coercion or restraint cease, and the means of effecting it are removed :" Baldwin, J., in Johnson v. Tompkins, Bald. C. C. 601. And see Pike v. Hanson, 9 New Hamp. 491; Francisca v. State, 4 Zabriskie 30; Smith v. State, 7 Hump. 43; Blower v. State, 3 Sneed 66; Halliday v. State, 1 Barb. S. C. 137.

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*HYBART v. PARKER. Feb. 10.

It is not competent to the adventurers or shareholders in a cost-book mine to stipulate by their rules that unpaid calls shall be recovered as a debt due from the defaulting shareholder to the purser.

THIS was an action against a shareholder in a cost-book mine to recover calls.

The first count of the declaration stated, that, before and at the time