Hobbs v. Rat

• Court: United States State Supreme Court of Rhode Island
• Citation: 25 A. 694,18 R.I. 84
• Parties: HOBBS v. RAT.
• Decision Date: 26 November 1892

25 A. 694

18 R.I. 84

HOBBS

v. RAT.

Supreme Court of Rhode Island.

Nov. 26, 1892.

Trespass on the case by Lemuel R. Hobbs against Frederick A. Ray for false imprisonment. On demurrer to the declaration, and also on demurrer to a plea in abatement. Demurrer to declaration sustained, and plea in abatement overruled.

John D. Thurston and George A. Littlefield, for plaintiff.

Warren R. Perce, for defendant.

PER CURIAM. We think the defendant's demurrer to the plaintiff's declaration should be sustained. The facts set out in the writ and declaration show a case for malicious prosecution, and not for false imprisonment; and these actions are quite distinct and different from each other. An action of trespass for false imprisonment lies for an arrest, or some other similar act of the defendant, "which," as is said, "upon the stating of it, is manifestly illegal;" while malicious prosecution, on the contrary, lies for a prosecution which, upon the stating of it, is manifestly legal. Johnstone v. Sutton, 1 Term R. 510, 544. The declaration in the case at bar shows that the arrest complained of was made under lawful process, although wrongfully obtained. There was, therefore, no false imprisonment, the imprisonment being by lawful authority. Nebenzahl v. Townsend, 61 How. Pr. 353, 356. Imprisonment caused by a malicious prosecution is not false, unless without legal process or extrajudicial. Murphy v. Martin, 58 Wis. 276, 16 N. W. Rep. 603; Colter v. Lower, 35 Ind. 285; 7 Amer. & Eng. Enc. Law, 663, 664, and cases cited. See, also, Turpen v. Remy, 3 Blackf. 210; Mitchell v. State, 12 Ark. 50, and cases cited; 1 Chitty, Pl. *133, *167. The gravamen of the offense of false imprisonment is the unlawful detention of another without his consent, and malice is not an essential element thereof; while, in an action for malicious prosecution, the essential elements are malice and want of probable cause in the proceeding complained of. But while, for the reasons above given, we think the demurrer should be sustained, yet, as the form of action employed by the plaintiff is case, which is the proper one in actions for malicious prosecution, we see no sufficient reason for sustaining the defendant's plea in abatement to the writ and declaration. The demurrer is sustained, and the plea in abatement is overruled, with leave to the plaintiff to file a motion to amend his writ and declaration.