Ellis v. Cleveland

The opinion of the court was delivered by Rowell, J. False imprisonment consists in restraining the liberty of the person without sufficient authority. 3 Bl. Com. 27. But if one consent to be restrained of his liberty, restraint accordingly is not false imprisonment, for the consent doth afford sufficient authority. The original arrest was lawful. Upon such arrest it became and was the duty of the officer, under the statute, to commit the plaintiff, if he committed him at all, to jail in Windsor County, the county in which the arrest was made; and it was the right of the plaintiff to be there committed. But he could waive that right. The duty thus imposed upon an officer is not so imperative that the performance thereof, as between him [440] and the person arrested, cannot be waived so as to bind such person. The plaintiff asked and obtained the indulgence of being taken to Chelsea and there detained. He cannot, therefore, now be heard to complain of the very acts that were done at his request, and which, but for his request, would not have been done at all. Volenti non fit injuria. If an officer to whom returnable process is directed would justify under it, he must show its return, else he is a trespasser ab initio ; for he is commanded to return the writ, and he shall not be protected by it unless he shows that he has paid due and full obedience to its command. Freeman v. Blewitt, 1 Salk. 409 ; Middleton v. Price, 2 Stra. [1184] ; s. c. 1 Wils. 17; Bac. Ab. Trespass (B); Briggs v. Mason, 31 Vt. 433, 441. But it is otherwise with the officer’s servant, for he hath no means to enforce the officer to make return ; it would be unreasonable, therefore, to punish him by re.ason of the non-performance of a thing over which he had no control. Girling’s Case, Cro. Car. 446; Bac. Ab. Trespass (B); Freeman v. Blewitt, supra. But the plea in this case being ill as to Perigo, for that it does not allege a return of the writ, and so discloses no justification of the original arrest, is ill as to Cleveland also ; for it is a well-settled rule of pleading, that if two or more join in a defence that is a sufficient justification as to one, but no justification as to the otjiers, the plea is ill as to all; for the court cannot sever it, and say that some are guilty and some are not, when they all put themselves on the same ground. 1 Saund. 227, & n. (2); Duffield v. Scott, 3 Term, 376, 377 ; Gould Pl. 360. A plea in bar that professes to answer the whole declaration or count, but answers only a part thereof, is bad as to the whole. 1 Saund. 28, n. (3); Gould Pl. 358 ; Goodrich v. Judevine, 40 Vt. 190. This plea professes to answer the whole declaration, but omits to justify the nine days’ detention following the 31st of May, in that it does not allege that such detention was at plaintiff’s request or by his consent. It is, therefore, ill. Judgment reversed, demurrer sustained, the second plea adjudged insufficient, and the cause remanded, with leave to defendants to replead on the usual terms.