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; 17 Ala. 540. 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. 1448; Pike v. Hanson, 9 N.H. 491.
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 *Page 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,10 N.H. 338. This is often done in order to obviate a variance between the allegations and the proof. The unlawful detention is a part of the same assault and battery, and not another and distinct wrong, and the whole constitutes a succession of acts of direct trespass, all remediable by an action of the same class. The declaration sets forth an assault and battery of the plaintiff, by beating, bruising, throwing him upon the ground, striking him with clubs, breaking his bones, dislocating his shoulder, c., "and other injuries then and there did," c. The additional averment of false imprisonment was perhaps omitted under a supposition that this additional matter might be offered in evidence under the alia enormia charged in the declaration; and I have found no authority that would forbid it, and perceive no reason why it may not be done. The substantial injury, however, complained of, is the assault and beating: the unlawful detention, which may be regarded as a continued assault and battery, is one of the incidents of the wrong inflicted, and is in no way inconsistent with or changes the cause of action as originally drawn.
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, 28 N.H. 279, a special demurrer will not lie under our statute for any defect of want of form only, nor for any error or mistake where the person and case may be rightly understood by the court. The demurrer should be overruled.
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