The jury found for the plaintiff. Damages, £10.[[28]]
PIKE v. HANSON
Superior Court of Judicature, New Hampshire, December Term, 1838.
Reported in 9 New Hampshire Reports, 491.
Trespass, for an assault and false imprisonment on the 1st day of July, A.D. 1837. The action was commenced before a justice of the peace. The defendants pleaded severally the general issue. It appeared in evidence that the defendants were selectmen of the town of Madbury for the year 1836; that they assessed a list of taxes upon the inhabitants of said town, among whom was the plaintiff, and committed it to Nathan Brown, collector of said town, for collection. Brown, after having given due notice to the plaintiff, being in a room with her, called upon her to pay the tax, which she declined doing until arrested. He then told her that he arrested her, but did not lay his hand upon her; and thereupon she paid the tax.
Upon this evidence the defendants objected that the action could not be maintained, because there was no assault.
It did not appear that the defendants had been sworn, as directed by the statute of January 4, 1833. A verdict was taken for the plaintiff, subject to the opinion of the court.
Wilcox, J.[[29]] ... But it is contended that in the present case there has been no assault committed, and no false imprisonment. Bare words will not make an arrest: there must be an actual touching of the body; or, what is tantamount, a power of taking immediate possession of the body, and the party’s submission thereto. Genner v. Sparkes, 1 Salk. 79. Where a bailiff, having a writ against a person, met him on horseback, and said to him, “You are my prisoner,” upon which he turned back and submitted, this was held to be a good arrest, though the bailiff never laid hand on him. But if, on the bailiff’s saying those words, he had fled, it had been no arrest, unless the bailiff had laid hold of him. Homer v. Battyn, Buffer’s N. P. 62. The same doctrine is held in other cases. Russen v. Lucas & al., 1 Car. & P. 153; Chinn v. Morris, 2 Car. & P. 361; Pocock v. Moore, Ry. & M. 321; Strout v. Gooch, 8 Greenl. 126; Gold v. Bissell, 1 Wend. 210.
Where, upon a magistrate’s warrant being shown to the plaintiff, the latter voluntarily and without compulsion attended the constable who had the warrant to the magistrate, it was held there was no sufficient imprisonment to support an action. Arrowsmith v. Le Mesurier, 2 B. & P. N. R. 211. But in this case there was no declaration of any arrest, and the warrant was in fact used only as a summons. And if the decision cannot be sustained upon this distinction, it must be regarded as of doubtful authority.
Starkie says that in ordinary practice words are sufficient to constitute an imprisonment, if they impose a restraint upon the person, and the plaintiff is accordingly restrained; for he is not obliged to incur the risk of personal violence and insult by resisting, until actual violence be used. 3 Stark. Ev. 1113. This principle is reasonable in itself, and is fully sustained by the authorities above cited. Nor does it seem necessary that there should be any very formal declaration of an arrest. If the officer goes for the purpose of executing his warrant; has the party in his presence and power; if the party so understands it, and in consequence thereof submits, and the officer, in execution of the warrant, takes the party before a magistrate, or receives money or property in discharge of his person, we think it is in law an arrest, although he did not touch any part of the body.
In the case at bar, it clearly appears that the plaintiff did not intend to pay the tax, unless compelled by an arrest of her person. The collector was so informed. He then proceeded to enforce the collection of the tax,—declared that he arrested her,—and she, under that restraint, paid the money. This is a sufficient arrest and imprisonment to sustain the action, and there must, therefore, be
Judgment on the verdict.[[30]]