bruary, fued out a fieri facias against Mrs. Barker, and there. upon the fheriff levied 164/. of the goods and chattels of Jofeph Barker at the time of his death in her hands, and returned that Mrs. Barker had no other goods of his in her hands to be administered.

Afterwards on the laft day of Hilary term 1769, the 13th of February, Norwood fued out a capias ad fatisfaciendum against Mrs. Barker, (reciting the judgment, the fieri facias, and the return thereof,) for the refidue of the debt and damages, and delivered the fame to one James Armstrong a fheriff's officer, and gave him orders and directions to take and arreft Mrs. Barker in execution; Armstrong, accordingly, by virtue of the fheriff's warrant upon the capias ad fatisfaciendum took Mrs. Barker in execution on the 15th of March, when he was committed to prifon, and there remained a prifoner until the 18th day of November following, when the court of King's Bench, upon motion, fet afide the capias ad fatisfaciendum, and ordered Mrs. Barker to be difcharged out of prifon; because it was not fuggefted, nor did it appear to the court of B. R. that Mrs. Barker had been guilty of a devaftavit, and therefore fhe (being an administratrix) had been taken in execution, and imprifoned contrary to law.

This was the fubftance of the evidence given by feveral witnelles for the plaintiff Mrs. Barker, at the trial in fupport of this action of imprifonment. The defendants called no witneffes, infifted the plaintiff had made no cafe, and ought to be nonfuited; but the Lord Chief Juftice thought otherwife, the defendants not having pleaded fpecially, nor juftified themfelves under the judgment and execution, however he recommended moderation to the jury in giving damages; for there was no evidence of any confpiracy to opprefs; and he thought it was a mere mistake of Mr. Norwood (who is a young man) in fuing out the ca. a. and caufing the body of Mrs. Barker to be taken in execution thereupon, without firft fuggefting or fhewing the had been guilty of a devaftavit; and he faid that it was in fome measure Mrs. Barker's own fault that fhe was detained in prifon fo long as eight months; for that if fhe or her attorney had applied to the court of King's Bench, or to any judge of that court, at his chambers, fhe might have been difcharged out of cuftody within a day or two after fhe was arrefted, upon laying her cafe properly before the court, or a judge; but notwithflanding this compaffionate recommendation to the jury in refpect to damages, they found for the plaintiff, and gave hier 150!. as aforefaid.

In the beginning of Michaelmas term laft, my Brother Sayer moved, first in arreft of judgment, infifting that trefpafs and Vol. III. falfe

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falfe imprisonment doth not lie against an attorney for any miflake or irregularity in fuing out procefs for his client; but that if he is guilty of any mistake, negligence, irregularity, or other mis-feafance or mal-practice in his office of an attorney, whereby his client, or other perfon or perfons, is, or are damnified and injured; the proper remedy against him is either in a fummary way of complaint to the court against him, or by a Special action upon the cafe for the wrong and injury done by him; and therefore although trefpafs and falfe imprisonment perhaps, might well lie, in this cafe, againft the defendant Braham alone, (which he did not admit) yet as both she and her attorney are now fued jointly, and intire damages given against them, if this action doth not well lie againft them both, the court will arreft the judgment, because they cannot fever the damages. Secondly, If the court fhould be of opinion that this action of imprifonment well lies against both the defendants, the attorney and his client; then my Brother Sayer defired he might have leave to move for a new trial for exceffiveness of damages. Upon which the court made a rule to fhew cause, and ordered both the matters to be spoken to, at the fame time, upon fhewing caufe.

Serjeant Davy for the plaintiff First, It is objected that this action doth not lie against either of the defendants, but more especially that it doth not lie against Mr. Norwood the attorney, fo judgment ought to be stayed.

And 2dly. If the action doth well lie against both, yet the damages are exceffive, and therefore a new trial ought to be granted.

In anfwer to the fift matter, it is certain the plaintiff Mrs. Barker hath been wrongfully imprifoned from the 15th of March until the 18th of November 1769, contrary to the law of England: it is as certain that both the defendants are guilty of, and caufed that imprisonment; Braham by employing Norwood to fue forth the ca.fa.; and Norwood as a mere volunteer, by delivering that writ to the fheriff's officer Armstrong, and ordering him to take the body of Mrs. Barker in execution and carry her to prifon; they have both pleaded not guilty, and have been both found guilty; if they had any legal juftification, or excufe for what they have done, they ought to have pleaded it fpecially; the only fact which the jury had to confider on the plea of not guilty was, whether the defendants imprifoned the plaintiff at all? and not whether the imprifonment was lawful; that is a matter befide, and not within the iffue or plea of not guilty, which only denies the fact of imprisoning the plaintiff's perfon. Whoever

imprisons

imprisons another (except in fome cafes under particular statutes) muft juftify himself. by pleading and fhewing fpecially to the court that the imprisonment was lawful; and this is a positive rule of law founded upon good reason; for if it was not fo, a defendant, in an action like this, might affign various reafons and causes of imprisoning a plaintiff which he never heard of or imagined, whereby a plaintiff would be always furprized, and never be prepared or able to meet the defendant at a trial upon the plea of not guilty, on fair and equal terms with respect to evidence and proofs of facts; but it is fufficient to say that this is a pofitive rule of law; and before the ftat. 4 & 5 Ann. (for pleading feveral pleas) fuch special plea was confined to one fingle matter or point.

It is objected that Norwood the attorney ought not to have been joined with his client Braham; but I anfwer that all the parties who, in any wife, caufe or procure the trefpafs or imprifonment to be done are principals; Braham had a judgment; Norwood her attorney carried the writ to the officer, and gave him orders to take Mrs. Barker's body in execution; he did fo, and the marshal of the King's Bench detained her in prifon by virtue of a commitment thereupon; Braham, Norwood, Armfrong, and the marshal, are all principals in this trefpafs; it's true the officers of a fuperior court may juftify under the writ of execution and commitment whether the procefs be good and lawful or not; but Braham and Norwood, if they would have juftified themselves, they must have fhewn both the judgment and execution to be good and lawful; which was impoffible for them to have done, because there was no devaftavit by Mrs. Barker fuggefted or recorded to have been committed, and therefore fhe, as an adminiftratrix to her husband, was unlawfully taken in execution. Or if Norwood had thought it any legal excufe that he was acting only in his office of an attorney, he ought to have pleaded that matter fpecially; but, with deference to the court, that plea would not have been of any service to him; for he acted as a volunteer in the trefpafs, and was principally concerned therein; fo that it would be contrary to natural juftice to say that fuch a party fhould not be joined in this action.

2. If the action be right as againft both the defendants, the damages are not exceffive; I will confent that the damages fhall be 500l. if my Brother pleafes, and he fhall move for a new trial for the exceffivenefs thereof if he thinks fit; the printer's devils were unlawfully imprifoned for a week only, and during that time lived well upon beef-fteaks and porter; and the jury gave them gool. a-piece damages: here the court faid they

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could

could not interfere or meddle with the damages in the prefent cafe.

Serjeant Burland for the plaintiff-It is objected that trefpafs vi et armis for falfe imprisonment, doth not lie against either of the defendants; but especially that it doth not lie against Mr. Norwood the attorney.

In anfwer to this; it never was queftioned, or in the leaft doubted but that, if a perfon fues out and caufes another to be arrested and imprifoned under illegal procefs, trefpafs vi et armis for falfe imprisonment well lies against the perfon fuing out fuch illegal procefs: fo that this action certainly well lies against the defendant Mrs. Braham.

But it is faid by my Brother Sayer, that fuppofing trefpass for falfe imprisonment might well lie in this cafe against the defendant Braham alone, yet if it will not lie against both defendants, the court will arreft the judgment, because intire damages are given against both, which cannot be fevered; and my Brother infifted that this action doth not lie against Mr. Norwood, but that he is only answerable in an action upon the cafe to his client for a mistake, mis-feafance or negligence in his profeffion; or in a fummary way of complaint to be made to the court againft him, by his client, or the perfon whom he has injured, by his acting irregularly or unlawfully in his profeffion.

In answer to this; it appears by your lordship's report of the evidence given at the trial, that Norwood was the principal allor in this cafe, that on the 13th of February 1769, he fued out the illegal fieri facias, and was the hand that delivered it to Armfrong the fheriff's officer, and was the very person who gave that officer orders and directions to take and arreft Mrs. Barker in execution, which he accordingly did, on the 15th of March following, when fhe was committed to prifon, and there remained for the space of eight months.

Suppofe Mr. Norwood the attorney, not having fued out any writ of fieri facias at all, had gone to Armfrong the officer, and given him orders and directions to arreft Mrs. Barker, at the fuit of Mrs. Braham, and Armstrong had pursued his [Norwood's] orders, and arrested Mrs. Barker, without any writ, or any other authority; there can be no doubt but both Norwood and Armfrong would, in fuch cafe, have been guilty of trefpafs and false imprifonment; in the prefent cafe Norwood had no writ of ca. fa. against Mrs. Barker, for an illegal writ is as no writ, it be ing void. So Mr. Norwood, in the prefent cafe, of his own mere

authority,

authority, without any other, ordered Mrs. Barker to be arrested; and I humbly infift, that whether Norwood did this wrong wilfully or ignorantly he is anfwerable in this action; and more efpecially as he has pleaded not guilty, and hath not attempted to juftify or excufe what he has done as an attorney; it must be taken that he has acted without the authority or procefs of the court, because he has not pleaded it; he did not plead it, because if he had pleaded it, he must have fet forth the judgment in his plea, and then it would have appeared clearly to the court that he had done wrong.

The court cannot take notice of any damage or injury Mrs. Braham hath fuffered, or may fuftain by the mis-feafance or mifconduct of Mr. Norwood her attorney, that matter not being the fubject of this action; and whether Norwood did this tref pafs as the attorney of Mrs. Braham or not, is wholly unknown to the plaintiff Mrs. Barker, fhe only knows that Norwood is a principal trefpaffer, by putting an illegal writ into the hands of Armstrong, and giving him orders to arreft and imprison Mrs. Barker the plaintiff.

As to the damages given by the jury I fhall fay nothing, becaufe in this cafe they certainly are the only proper judges

thereof.

Serjeant Sayer for the defendants-I humbly infift, notwithftanding what has been faid by my Brothers, that this action doth not lie against Mr. Norwood for a mere flip or mistake which he hath committed in acting as an attorney for his client; I call it a mere flip or mistake, because the court of King's Bench thought it amounted to nothing more, when they fet afide the capias ad fatisfaciendum and difcharged Mrs. Barker out of prifon, without ordering Mrs. Braham or Mr. Norwood to pay any cofts.

If I am right in this point of law, viz. that an action of trefpafs vi et armis will not lie against an attorney for a mere flip or miflake in his office of attorney, and it appearing by the evidence reported by your lordfhip that Norwood acted merely as an attorney in this cafe, that evidence deftroys the plaintiff's action; and whatever matter deftroys the plaintiff's action may be given in evidence upon the general iffue.

If gentlemen in the profeffion of the law are to be anfwerable for mere flips or involuntary miflakes, no wife man would practice the law; for humanum eft errare; and the barrister and ferjeant at law, as well as the attorney, would be equally liable to actions of this fort for mere flips or miftakes in judgment and

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opinion;