Bird v Jones

[742] bird against jones. 1845. Plaintiff, attempting to pass in a particular direction, was obstructed by defendant, who prevented him from going in any direction but one, not being that in which he had endeavoured to pass. Held, no imprisonment. And this, whether the plaintiff had or had not a right to pass in the first mentioned direction. Per Patteson, Coleridge, and Williams Js. Dissentiente Lord Denman C.J. [S. C. 15 L. J. Q. B. 82; 9 Jur. 870.] This action (a)2 was tried before Lord Denman C.J., at the Middlesex sittings after Michaelmas term, 1843, when a verdict was found for the plaintiff. In Hilary term, 1844, Thesiger obtained a rule nisi for a new trial, on the ground of misdirection (&). la Trinity term in the same year (June 5th), Platt, Humfrey and Hance shewed cause, and Sir F. Tbesiger, Solicitor General, supported the rule. The judgments sufficiently explain the nature of the case. Cur. adv. vult. In this vacation (9th July), there being a difference of opinion on the Bench, the learned Judges who heard the argument delivered judgment seriatim. Coleridge J. In this case, in which we have unfortunately been unable to agree in our judgment, I am now to pronounce the opinion which I have formed : and I shall be able to do so very briefly, because, having had the opportunity of reading a judgment prepared by my brother Patteson, and entirely agreeing with it, I may content myself with referring to the statement be has made in detail of those preliminary points in which we all, I believe, agree, and which bring the case up to that point upon which its decision must certainly turn, and with regard to which our difference exists, This point is, whether certain facts, which may be [743] taken as clear upon the evidence, amount to an imprisonment. These facts, stated shortly, and as I understand them, are in effect as follows. A part of a public highway was inclosed, and appropriated for spectators of a boat race, paying a price for their seats. The plaintiff was desirous of entering this part, and was opposed by the defendant: but, after a struggle, during which no momentary detention of his person took place, he succeeded in climbing over the inclosure. Two policemen were then stationed by the defendant to prevent, and they did prevent, him from passing onwards in the direction in which he declared his wish to go: but he was allowed to remain unmolested where he was, and was at liberty to go, and was told that he was so, in the only other direction by which he could pass, This he (a)1 Lord Deriman C.J., Williams, and Coleridge Js. Patteson J. had left the Court-before the case was called on. (a)2 As to the pleadings, see p. 749, post, (i) See p, 751, note (a), post. 7Q.B.744. BIRD V. JONES 669 refuged for some time, and, during that time, remained where he had thus placed himself. These are the facts: and, setting aside those which do not properly bear on the question now at issue, there will remain these : that the plaintiff, being in a public highway and desirous of passing along it, in a particular direction, is prevented from doing so by the orders of the defendant, and that the defendant's agents for the purpose are policemen, from whom, indeed, no unnecessary violence was to be anticipated, or such as they believed unlawful, yet who might be expected bo execute such commands as they deemed lawful with all necessary force, however resisted. But, although thus obstructed, the plaintiff was at liberty to move his person and go in any other direction, at his free will and pleasure: and no actual force or restraint on his person was used, unless the obstruction before mentioned amounts to so much. [744] I lay out of consideration the question of right or wrong between these parties. The acts will amount to imprisonment neither more nor less from their being wrongful or capable of justification. And I am of opinion that there was no imprisonment. To call it so appears to me to confound partial obstruction and disturbance with total obstruction and detention. A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only; it may itself be moveable or fixed : but a boundary it must have ; and that boundary the party imprisoned must be prevented from passing; he must be prevented from leaving that place, within the ambit of which the party imprisoning would confine him, except by prison-breach. Some confusion seems to me to arise from confounding imprisonment of the body with mere loss of freedom: it is one part of the definition of freedom to be able to go whithersoever one pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own. In Com. Dig. Imprisonment (G), it is said : " Every restraint of the liberty of a free man...