though there may be damage sufficient accruing from it, yet, if the fact be true, it is damnum absque injuria; and where there is no injury the law gives no remedy. And this is agreeable to the reasoning of the civil law:(t) “eum qui nocentem infamat, non est æquum et bonum ob eam rem condemnari; delicta enim nocentium nota esse oportet et expedit." A second way of affecting a man's reputation is by printed or written libels, pictures, signs, and the like; which set him in an odious or ridiculous(u) light, and thereby diminish his reputation. With regard to libels in general, there are, as in many other cases, two remedies: one by indictment, and the other by action. The former for the public offence; for every libel has a tendency to the breach of the peace, by provoking the person libelled to break it: which offence is the same (in point of law) whether the matter contained be true or false; and therefore the defendant, on an indictment for publishing a [*126 libel, is not allowed to allege the truth of it by way of justification.(w)2 But in the remedy by action on the case, which is to repair the party in damages for the injury done him, the defendant may, as for words spoken, justify the truth of the facts, and show that the plaintiff has received no injury at all.(x) What was said with regard to words spoken will also hold in every particular with regard to libels by writing or printing, and the civil actions consequent thereupon; but as to signs or pictures, it seems necessary always to show, by proper innuendoes and averments of the defendant's meaning, the import and application of the scandal, and that some special damage has followed; otherwise it cannot appear that such libel by picture was understood to be levelled at the plaintiff, or that it was attended with any actionable consequences." 13 A third way of destroying or injuring a man's reputation is by preferring malicious indictments or prosecutions against him; which, under the mask of justice and public spirit, are sometimes made the engines of private spite and enmity. For this, however, the law has given a very adequate remedy in damages, either by an action of conspiracy,(y) which cannot be brought but against two at the least; or, which is the more usual way, by a special action on the case 12 But now, by stat. 6 & 7 Vict. c. 96, s. 6, on the trial of any indictment or information for a libel, the defendant having pleaded such plea as therein mentioned, the truth of the matter charged may be inquired into, but shall not amount to a defence unless it was for the public benefit that the matter charged should be published. To entitle the defendant to give evidence of the truth of the matters charged as a defence to such indictment or information, it is necessary for the defendant, in pleading to the indictment or information, to allege the truth of the said matters, and also that it was for the public benefit that the matters charged should be published, to which plea the prosecutor may reply generally; and if after such plea the defendant is convicted, the court may, in pronouncing sentence, consider whether the guilt of the defendant is aggravated or mitigated by the plea.-STEWART. In an action of slander, the defendant was not allowed to give in evidence, in mitigation of damages, facts and circumstances which induced him to believe that the charges which he made were true, when such facts and circumstances tended to prove the charges or formed a link in the chain of evidence to establish a justification, though the defendant expressly disavowed a justification and fully admitted the falsity of the charges. Purple vs. Horton, 13 Wend. 9. Petrie vs. Rose, 5 Watts & Serg. 364. Regnier vs. Cabot, 2 Gilman, 34. Watson vs. Moore, 2 Cushing, 133. It has been since held, however, that the defendant may prove, in mitigation of damages, circumstances which induced him erroneously to make the charge complained of, and thereby rebut the presumption of malice, provided the evidence do not necessarily imply the truth of the charge or tend to prove it true. Minesinger vs. Kerr, 9 Barr. 312.-SHARSWOOD. 13 The printer or publisher, as well as the writer, is liable in an action for damages. It is no defence that the printer did not know, or had no personal malice against, the party libelled, nor that he did not know of the publication, nor that the libel was accompanied with the name of the author. Rundle es. Meyer, 3 Yeates, 518. Dexter vs. Spear, 4 Mason, 115. Andre vs. Wells, 7 Johns. 260. Dole es. Lyon, 10 Johns. 447. The publication in a newspaper of rumours is not justified by the fact that such rumours existed; but such fact is admissible in mitigation of damages. Skinner vs. Powers, 1 Wend. 451.-SHARSWOOD. for a false and malicious prosecution.(z) In order to carry on the former, (which gives a recompense for the danger to which the party has been exposed,) it is necessary that the plaintiff should obtain a copy of the record of his indictment and acquittal; but, in prosecutions for felony, it is usual to deny a copy of the indictment, where there is any the least probable cause to found such prosecution upon. (a) For it would be a very great discouragement to the public justice of the kingdom, if prosecutors, who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried. *127] *But an action on the case for a malicious prosecution may be founded upon an indictment whereon no acquittal can be had; as if it be rejected by the grand jury, or be coram non judice, or be insufficiently drawn. For it is not the danger of the plaintiff, but the scandal, vexation, and expense, upon which this action is founded. (b) However, any probable cause for preferring it is sufficient to justify the defendant. II. We are next to consider the violation of the right of personal liberty. This is effected by the injury of false imprisonment," for which the law has not only decreed a punishment, as a heinous public crime, but has also given a private reparation to the party; as well by removing the actual confinement for the present, as, after it is over, by subjecting the wrong-doer to a civil action, on account of the damage sustained by the loss of time and liberty. To constitute the injury of false imprisonment there are two points requisite: 1. The detention of the person; and, 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets. (c) Unlawful, or false, imprisonment consists in such confinement or detention without sufficient authority: which authority may arise either from some process from the courts of justice, or from some warrant from a legal officer having power to commit, under his hand and seal, and expressing the cause of such commitment; (d) or from some other special cause warranted, for the necessity of the thing, either by common law, or act of parliament; such as the arresting of a felon by a private person without warrant, the impressing of mariners for the public service, or the apprehending of wagoners for misbehaviour in the public highways. (e) False imprisonment also may arise *128] by executing a lawful warrant or process at an *unlawful time, as on a Sunday (f) for the statute hath declared that such service or process shall bo void. This is the injury. Let us next see the remedy: which is of two sorts; the one removing the injury, the other making satisfaction for it. () F. N. B. 116. (a) Carth. 421. Lord. Raym. 253. () 10 Mod. 219, 220. Stra. 691. (e) 2 Inst. 589. (d) Ibid. 46. (e) Stat. Geo. III. c. 78. (f) Stat. Car. II. c. 7. Salk. 78. 5 Mod. 95. But the merely giving charge of a person to a peace-officer, not followed by any actual apprehension of the person, does not amount to an imprisonment, though the party to avoid it attend at a police-office, (1 Esp. Rep. 431. 2 New Rep. 211;) and in Gardner vs. Wedd and others, Easter Term, 1825, on a motion for a new trial, the court of Common Pleas held that the lifting up a person in his chair and carrying him out of the room in which he was sitting with others, and excluding him from the room, was not a false imprisonment so as to entitle the plaintiff to a verdict on a count for false imprisonment. The circumstance of an imprisonment being committed under a mistake constitutes no excuse. 3 Wils. 309. And it has been decided that if A. tell an officer who has a warrant against B. that his (A.'s) name is B., and thereupon the officer arrests A., it is false imprisonment, (Moore, 457. Hardr. 323; but see 3 Camp. 108;) and this doctrine was overruled in a late case on the western circuit, on the principle volenti non fit injuriam, and that such a fraud upon legal proceedings cannot give a right of action.— CHITTY. 15 To constitute false imprisonment, it is not necessary that the person should be arrested or assaulted: if he is detained by threats of violence and prevented from going where he wishes by a reasonable apprehension of personal danger, it is sufficient. Johnson vs. Tompkins, 1 Baldwin, 571. Pike vs. Hanson, 9 New Hamp. 491. Smith vs. The State, 7 Humph. 43.-SHARSWood. 16 But the statute has excepted cases of treason, felony, and breach of the peace, in which the execution of a lawful warrant or process is allowed upon a Sunday -CHITTY. The means of removing the actual injury of false imprisonment are fourfold. 1. By writ of mainprize. 2. By writ de odio et atia.” 3. By writ de homine replegiando. 4. By writ of habeas corpus. 1. The writ of mainprize, manucaptio, is a writ directed to the sheriff, (either generally, when any man is imprisoned for a bailable offence and bail has been refused; or specially, when the offence or cause of commitment is not properly bailable below,) commanding him to take sureties for the prisoner's appearance, usually called mainpernors, and to set him at large.(g) Mainpernors differ from bail, in that a man's bail may imprison or surrender him up before the stipulated day of appearance; mainpernors can do neither, but are barely sureties for his appearance at the day: bail are only sureties that the party be answerable for the special matter for which they stipulate; mainpernors are bound to produce him to answer all charges whatsoever. (h) 2. The writ de odio et atia was antiently used to be directed to the sheriff, commanding him to inquire whether a prisoner charged with murder was committed upon just cause of suspicion, or merely propter odium et atiam, for hatred and ill will; and if upon the inquisition due cause of suspicion did not appear, then there issued another writ for the sheriff to admit him to bail. This writ, according to Bracton,(i) ought not to be denied to any man, it being expressly ordered to be made out gratis, without any denial, by magna carta, c. 26, and statute Westm. 2, 13 Edw. I. c. 29. But the statute *of Gloucester, 6 Edw. I. c. 9, restrained it in the case of killing by misadventure or self-defence, [*129 and the statute 28 Edw. III. c. 9 abolished it in all cases whatsoever: but as the statute 42 Edw. III. c. 1 repealed all statutes then in being, contrary to the great charter, Sir Edward Coke is of opinion(k) that the writ de odio et atia was thereby revived. 3. The writ de homine replegiando(1) lies to replevy a man out of prison, or out of the custody of any private person, (in the same manner that chattels taken in distress may be replevied, of which in the next chapter,) upon giving security to the sheriff that the man shall be forthcoming to answer any charge against him. And if the person be conveyed out of the sheriff's jurisdiction, the sheriff may return that he is eloigned, elongatus; upon which a process issues (called a capias in withernam) to imprison the defendant himself, without bail or mainprize,(m) till he produces the party. But this writ is guarded with so many exceptions,(n) that it is not an effectual remedy in numerous instances, especially where the crown is concerned. The incapacity therefore of these three remedies to give complete relief in every case hath almost entirely antiquated them, and hath caused a general recourse to be had, in behalf of persons aggrieved by illegal imprisonment, to 4. The writ of habeas corpus, the most celebrated writ in the English law. Of this there are various kinds made use of by the courts at Westminster, for removing prisoners from one court into another for the more easy administration of justice. Such is the habeas corpus ad respondendum, when a man hath a cause of action against one who is confined by the process of some inferior court; in order to remove the prisoner, and charge him with this new action in the court above.(0) Such is that ad satisfaciendum, when a prisoner hath [*130 *had judgment against him in an action, and the plaintiff is desirous to bring him up to some superior court to charge him with process of execution.(p) Such also are those ad prosequendum, testificandum, deliberandum, &c.; which issue when it is necessary to remove a prisoner, in order to prosecute or bear testimony in any court, or to be tried in the proper jurisdiction wherein the fact was 17 Of the two first-mentioned writs nothing is now known in practice, their use and application being entirely superseded by summary resort to magistrates, or, upon their refusal, to a judge of the court, as the case may require.-CHITTY. committed.18 Such is, lastly, the common writ ad faciendum et recipiendum, which issues out of any of the courts of Westminster hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the superior court; commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer, (whence the writ is frequently denominated an habeas corpus cum causa,) to do and receive whatsoever the king's court shall consider in that behalf. This is a writ grantable of common right, without any motion in court, (q) and it instantly supersedes all proceedings in the court below. But in order to prevent the surreptitious discharge of prisoners, it is ordered by statute 1 & 2 P. and M. c. 13 that no habeas corpus shall issue to remove any prisoner out of any gaol, unless signed by some judge of the court out of which it is awarded. And to avoid vexatious delays by removal of frivolous causes, it is enacted by statute 21 Jac. I. c. 23 that, where the judge of an inferior court of record is a barrister of three years' standing, no cause shall be removed from thence by habeas corpus or other writ, after issue or demurrer deliberately joined; that no cause, if once remanded to the inferior court by writ of procedendo or otherwise, shall ever afterwards be again removed; and that no cause shall be removed at all, if the debt or damages laid in the declaration do not amount to the sum of five pounds. But an expedient(r) having been found out to elude the latter branch of the statute, by procuring a nominal plaintiff to bring another action for five pounds or upwards, (and then, by the course of the court, the habeas corpus removed both actions together,) it *131] is therefore enacted by statute 12 Geo. I. c. 29, that the inferior *court may proceed in such actions as are under the value of five pounds, notwithstanding other actions may be brought against the same defendant to a greater amount. And by statute 19 Geo. III. c. 70, no cause under the value of ten pounds shall be removed by habeas corpus, or otherwise, into any superior court, unless the defendant so removing the same shall give special bail for payment of the debt and costs. But the great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf.(s) This is a high prerogative writ, and therefore by the common law issuing out of the court of king's bench not only in term-time, but also during the vacation,(t) by a fiat from the chief justice or any other of the judges, and running into all parts of the king's dominions; for the king is at all times entitled to have an account why the liberty of any of his subjects is restrained, (u) wherever that restraint may be inflicted. If it issues in vacation, it is usually returnable before the judge himself who awarded it, and he proceeds by himself thereon;(v) unless the term shall intervene, and then it may be returned in court.(w) Indeed, if the party were privileged in the courts of common pleas and exchequer, as being (or supposed to be) an officer or suitor of the court, an habeas corpus ad subjiciendum might also by common law have been awarded from thence;(x) and, if the cause of imprisonment were palpably illegal, they might have discharged him :(y) but, if he were committed for any criminal matter, they could only have remanded him, or taken bail for his ap (9) 2 Mod. 306. (r) Bohum Instit. Legal. 85, edit. 1708. (4) St. Trils. viii. 142. (4) The laries habeas corpus directed to Berwick in 43 Eliz. cited 4 Burr. 856) was texte'd die Joris pror' post quinden' Sancti Martini, It appears, by referring to the dominical letter of that year, that this quindena (Nov. 25) happened that year on a Saturday. The Thursday after was therefore the 30th of November,-two days after the expiration of the term. (*) Cro. Jac. 543. (*) 4 Burr. 56. () Ibid. 460, 542, 606. (*) 2 Inst. 55. 4 Inst. 290. 2 Hal. P. C. 141. 2 Ventr. 24. () Vaugh. 155. 18 By 44 Geo. III. c. 102, any of the judges of England or Ireland may award a writ of habeas corpus ad testificandum to bring a prisoner detained in any gaol to be examined as a witness in any court of record or sitting at nisi prius.-CHITTY. 19 Ry statute 57 Geo. III. c. 124, extended to 157., and by statute 7 & 8 Geo. IV. c. 71, 6, extended to 207.-CHITTY. [*132 pearance in the court of king's bench,(z) which *occasioned the common pleas for some time to discountenance such applications. But since the mention of the king's bench and common pleas, as co-ordinate in this jurisdiction, by statute 16 Car. I. c. 10, it hath been holden, that every subject of the kingdom is equally entitled to the benefit of the common-law writ, in either of those courts, at his option.(a) It hath also been said, and by very respectable authorities,(b) that the like habeas corpus may issue out of the court of chancery in vacation; but upon he famous application to lord Nottingham by Jenks, notwithstanding the most diligent searches, no precedent could be found where the chancellor had issued such a writ in vacation;(c) and therefore his lordship refused it.20 (*) Carter, 221. 2 Jon. 13. (a) 2 Mod. 198. Wood's Case, C. B. Hill. 11 Geo. III. (*) 4 Inst. 182. 2 Hal. P. C. 147. It was determined, after a very elaborate investigation of all the authorities by lord Eldon in Crowley's case, that the lord chancellor can issue the writ of habeas corpus at common law in vacation, overruling the decision in Jenks's case. See 2 Swanst. I. By two modern statutes, the 43 Geo. III. c. 140 and 44 Geo. III. c. 102, the habeas corpus ad testificandum has been rendered more efficient. By the first, a judge may award the writ for the purpose of bringing any prisoner from any gaol in England or Ireland as a witness, before any court-martial, commissioners of bankrupt or for auditing public accounts, or other commissioners, under any commission or warrant from his majesty: (the statute has the same application to the habeas corpus ad deliberandum.) By the other statute, a similar power is given for bringing up any prisoner as a witness before any of the courts, or any justice of oyer and terminer, or gaol-delivery, or sitting at nisi prius, in England or Ireland. The benefit of the writ of habeas corpus, which was limited by the former acts to cases of commitment or detainer for criminal, or supposed criminal, matter, has been still further extended by the 59 Geo. III. c. 100, which enacts that any one of the judges may issue a writ of habeas corpus in vacation, returnable immediately, before himself or any other judge of the same court, in cases other than for criminal matter or for debt; and the non-observance of such writ is to be deemed a contempt of court. But if the writ be awarded so late in the vacation that the return cannot be conveniently made before term, then it is to be made returnable in court at a day certain. And if the writ be awarded late in term, it may be made returnable in vacation in like manner. The act applies to Ireland as well as England, and the writ may run into counties palatine, cinque ports, and privileged places, &c., Berwick-upon-Tweed, and the isles of Guernsey, Jersey, or Man. The writ of habeas corpus is the privilege of the British subject only, and therefore cannot be obtained by an alien enemy or a prisoner of war. See the case of the three Spanish sailors, 2 Blk. 1324. 2 Burr. 765. The relief in such cases is by application to the secretary at war. On a commitment by either house of parliament for contempt or breach of privilege, the courts at Westminster cannot discharge on a habeas corpus, although, on the return of the writ, such commitment should appear illegal; for they have no power to control the privileges of parliament. 2 Hawk. c. 15. s. 73. 8 T. R. 314. The writ of habeas corpus, whether at common law or under 31 Car. II. c. 2, does not issue, as a matter of course, upon application in the first instance, but must be grounded on an affidavit, upon which the court are to exercise their discretion whether the writ shall issue or not. 3 B. & A. 420. 2 Chitty R. 207. A habeas corpus cum causa does not lie to remove proceedings from an inferior jurisdiction into the court of King's Bench, unless it appears that the defendant is actually or virtually in the custody of the court below. 1 B. & C. 513. 2 Dowl. & R. 722. The court of King's Bench will grant a habeas corpus to the warden of the Fleet, to take a prisoner confined there for debt before a magistrate, to be examined from day to day respecting a charge of felony or misdemeanour. 5 B. & A. 730. The court of exchequer will not grant a habeas corpus to enable the defendant in an information, who is confined in a county gaol for a libel under the sentence of another court, to attend at Westminster to conduct his defence in person: the application should be made to the court by whom the defendant was sentenced. 9 Price, 147. Nor will the court of King's Bench grant a writ of habeas corpus to bring up a defendant under sentence of imprisonment for a misdemeanour, to enable him to show cause in person against a rule for a criminal information. 3 B. & A. 679. n. Where there are articles of separation between the husband and wife, if the husband afterwards confine her, she may have a habeas corpus and be set at liberty. 13 East, 173, n. A habeas corpus will be granted in the first instance, to bring up an infant who had absconded from his father and was detained by a third person without his consent. 4 Moore, 366. The court will not grant a habeas corpus to bring up the body of a feme-covert on an |