Bird v. Jones

Judge COLERIDGE.

.... This point is, whether certain facts, which may be 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 enclosed, 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 enclosure. 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 refused 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 may 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... 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 me obstruction before mentioned amounts to so much ....

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.

. . . If it be said that to hold the present case to amount to an imprisonment would turn every obstruction of the exercise of a right of way into an imprisonment, the answer is, that there must be something like personal menace or force accompanying the act of obstruction, and that, with this, it will amount to imprisonment. I apprehend that is not so. If, in the course of a night, both ends of a street were walled up, and there was no egress from the house but into the street, I should have no difficulty in saying that the inhabitants were thereby imprisoned; but, if only one end were walled up, and an armed force stationed outside to prevent any scaling of the wall or passage that way, I should feel equally clear that there was no imprisonment. If there were, the street would obviously be the prison; and yet, as obviously, none would be confined to it. . . .


[Defendant's request for a new trial was granted. The concurring opinion of Williams, j., is omitted.]


LORD DENMAN, C.J. [dissenting] ... There is some difficulty perhaps in defining imprisonment in the abstract without reference to its illegality; nor , is it necessary for me to do so, because I consider these acts as amounting to imprisonment. That word I understand to mean any restraint of the person by force ....

. . . I had no idea that any person in these times supposed any particular boundary to be necessary to constitute imprisonment, or that the restraint of a man's person from doing what he desires ceases to be an imprisonment because he may find some means of escape.

It is said that the party here was at liberty to go in another direction. I am not sure that in fact he was, because the same unlawful power which prevented him from taking one course might, in case of acquiescence, have refused him any other. But this liberty to do something else does not appear to me to affect the question of imprisonment. As long as I am prevented from doing what I have a right to do, of what importance is it that I am permitted to do something else? How does the imposition of an unlawful condition show that I am not restrained? If I am locked in a room, am I not imprisoned because I might effect my escape through a window, or because I might find an exit dangerous or inconvenient to myself as by wading through water or by taking a route so circuitous that my necessary affairs would suffer by delay? It appears to me that this is a total deprivation of liberty with reference to the purpose for which he lawfully wished to employ his liberty. And being effected by force it is not the mere obstruction of a way but a restraint of a purpose. . . .

It is said that, if any damage arises from such obstruction, a special action on the case may be brought. Must I then sue out a new writ stating that the defendant employed direct force to prevent my going where my business called me, whereby I sustained loss? And, if I do, is it certain that I shall not be told that I have misconceived my remedy, for all flows from the false imprisonment, and that should have been the subject of an action of trespass and assault? For the jury properly found that the whole of the defendant's conduct was continuous: it commenced in illegality; and the plaintiff did right to resist it as an outrageous violation of the liberty of the subject from the very first. Rule absolute.