Bird v. Jones

Part of Hammersmith Bridge footway was fenced off for paying spectators of a regatta. Bird climbed the fence and was stopped by two policemen. He was told he could go back and cross by the carriage way, but he stayed about half an hour. The Queen's Bench, by a majority, held this was not false imprisonment (unlawful total restraint of a person's liberty).

Quick Revision

Read the full judgment: BAILII

Parties

Bird — plaintiff. He was stopped from walking along the part of the footway that had been fenced off. He sued for assault (a threat of force) and false imprisonment.

Jones — defendant. He was the clerk of the Bridge Company and had the policemen posted on the footway. He pleaded that the plaintiff assaulted him first and that he gave the plaintiff into custody.

Two policemen — stationed by the defendant to stop the plaintiff going forward. They are not named.

Thesiger (Sir F. Thesiger, Solicitor General) — counsel who obtained the rule nisi (an order obtained for a new trial, on which counsel showed cause) and supported the rule.

Platt, Humfrey and Hance — counsel who showed cause against the rule. The report does not say in words which party each counsel represented.

Procedural History

1. The action was tried before Lord Denman C.J., at the Middlesex sittings after Michaelmas term, 1843. The jury gave a verdict for the plaintiff.
2. In Hilary term, 1844, Thesiger obtained a rule nisi for a new trial. The ground was misdirection (the ground of complaint about the direction given to the jury).
3. In Trinity term, on June 5th of that year, Platt, Humfrey and Hance showed cause. Sir F. Thesiger, Solicitor General, supported the rule.
4. The report says the judgments sufficiently explain the nature of the case. The Court took time to consider (Cur. adv. vult, meaning the Court will consider).
5. On 9 July, the Bench was divided. The judges who heard the argument delivered judgment seriatim (one after another).
6. Coleridge J. said he agreed with Patteson J. and pronounced his own opinion briefly. Williams J. was absent, so his judgment was read from his manuscript by Coleridge J.
7. The direction complained of: at the trial, the Lord Chief Justice told the jury that an imprisonment had taken place before the plaintiff assaulted the defendant.
8. The footnotes refer the reader to the pleadings at p. 749 and to a note at p. 751 of the report. That material is not set out in the judgment text.

Facts

1. A part of Hammersmith Bridge, ordinarily used as a public footway, was set apart with seats for people to view a regatta on the river.
2. The part was separated from the carriage way by a temporary fence. Spectators paid a price for their seats.
3. The plaintiff insisted on passing along the part set apart. He tried to climb over the fence.
4. The defendant was clerk of the Bridge Company. He opposed the plaintiff, seized his coat and tried to pull him back.
5. Coleridge J. notes that the plaintiff was not detained even for a moment during the struggle. The plaintiff succeeded in climbing over the fence.
6. The defendant then stationed two policemen. They prevented the plaintiff from going forward along the footway in the direction he wished to go.
7. No unnecessary violence was expected from the policemen. They would however have used necessary force, however resisted, to carry out commands they thought lawful (Coleridge J.).
8. The plaintiff was told he might go back into the carriage way and cross to the other side of the bridge. The other direction was open, and he was at liberty to move that way.
9. The plaintiff refused. He remained where he was, obstructed, for about half an hour.
10. The defendant still refused to let him go forward along the footway. The plaintiff tried to force his way and, in doing so, assaulted the defendant. He was then taken into custody.
11. Lord Denman C.J. describes the setting as follows. A company unlawfully obstructed a public way for its own profit, took money from passengers and hired policemen for the purpose. The plaintiff was stopped by force and told a force was at hand to compel his submission.
12. The pleas were as follows. To the assault, the defendant pleaded son assault demesne (the plaintiff assaulted first). To the imprisonment, he pleaded that the plaintiff assaulted him before the imprisonment, so he gave the plaintiff into custody.
13. The plaintiff replied de injuria to each plea. This put in issue who committed the first assault, and whether the imprisonment came before or after any assault by the plaintiff.
14. The jury found the whole transaction to be continuous (Patteson J.).

Issues Raised

1. Do certain facts, taken as clear on the evidence, amount to an imprisonment in point of law? The plaintiff was prevented from going forward on a public footway but was free to go in the other direction.
2. Is a partial obstruction of the will enough to make an imprisonment, or must there be a total restraint with a boundary the person cannot pass?
3. Was the imprisonment complete while an escape was open to the plaintiff?
4. Does the wrongfulness of the defendant's act, or the plaintiff's right of way, affect whether there was an imprisonment?
5. Was the direction to the jury, that an imprisonment took place before the plaintiff assaulted the defendant, wrong, so that a new trial should be ordered?

Arguments Contended

The report does not set out counsel's arguments. It records only who appeared and what the footnotes say. The points below are all that the report states.

Counsel who obtained and supported the rule for a new trial (Thesiger)

1. Sir F. Thesiger obtained the rule for a new trial on the ground of misdirection. The direction complained of was that an imprisonment had taken place before the plaintiff assaulted the defendant. The report records no further argument by him.
2. The report records that, on the pleadings, the authorities referred to in the argument were Bull. N. P. 18, Oakes v. Wood, 3 M. & W. 150, and Oakes v. Wood, 2 M. & W. 791 (footnote 7). It does not say which side cited them.

Counsel who showed cause (Platt, Humfrey and Hance)

1. Platt, Humfrey and Hance showed cause. The report does not record their arguments.
2. The footnote says that Humfrey alluded, in argument, to a case tried before Lord Chief Justice Tindal. He gave no name and no details.

Court's Reasoning

The Bench was divided, and each judge gave a separate opinion. Coleridge J., Williams J. and Patteson J. formed the majority. Lord Denman C.J. dissented. The judgment has no numbered paragraphs, so each step is cited to the judge's opinion.

Coleridge J.

1. Noted: he agreed entirely with a judgment prepared by Patteson J. He referred to Patteson J.'s statement of the preliminary points on which all the judges agreed. The difference was on the point on which the decision turned. (Coleridge J.)
2. Noted: the point was whether certain facts, taken as clear on the evidence, amounted to an imprisonment. (Coleridge J.)
3. Noted: he set out the facts shortly. A part of the highway was enclosed for paying spectators of a boat race. The plaintiff was opposed, but after a struggle, with no momentary detention, he climbed over the enclosure. (Coleridge J.)
4. Noted: two policemen then stopped him going onwards. He was left unmolested where he was, and was told he was at liberty to go in the only other direction. He refused for some time and stayed where he had placed himself. (Coleridge J.)
5. Noted: setting aside facts that do not bear on the question, the plaintiff was prevented from passing along in one direction on the orders of the defendant. The defendant's agents were policemen. He was free to go in any other direction, and no actual force or restraint was used on his person, unless the obstruction amounts to so much. (Coleridge J.)
6. Held: the question of right or wrong between the parties is laid aside. The acts amount to imprisonment neither more nor less from being wrongful or capable of justification. (Coleridge J.)
7. Held: there was no imprisonment. Calling it so confuses partial obstruction and disturbance with total obstruction and detention. (Coleridge J.)
8. Why: a prison may have a boundary that is large or narrow, visible and tangible, or only in the mind. It may be movable or fixed. "a boundary it must have". The person imprisoned must be prevented from passing that boundary, except by prison-breach. (Coleridge J.)
9. Noted: some confusion comes from mixing up imprisonment of the body with mere loss of freedom. Freedom includes going wherever one pleases. Imprisonment is more than losing that power. It includes restraint within limits set by a will or power outside our own. (Coleridge J.)
10. Noted: Com. Dig. Imprisonment (G) says "Every restraint of the liberty of a free man will be an imprisonment." The authorities cited are 2 Inst. 482 and Cro. Car. 210. On reading them, nothing in them is inconsistent with his view. Both books point out that a prison is not necessarily a place set apart for prisoners. (Coleridge J.)
11. Noted: Lord Coke was commenting on the Statute of Westminster 2d, in persona. He said every restraint of the liberty of a freeman is an imprisonment, though he is not within the walls of any common prison. (Coleridge J.)
12. Noted: the passage in Cro. Car. comes from the case of an information against Sir Miles Hobart and Mr. Stroud for escaping from the Gate House prison, to which the King had committed them. Because of sickness in London and the keeper's favour, they had not been within the Gate House walls except once. The Court said their voluntary retirement to the close stool made them prisoners. (Coleridge J.)
13. Noted: the resolution in that case was that the King's Bench prison is not a local prison confined to one place. Every place where a person is restrained of liberty is a prison. One who takes sanctuary and leaves it is said to break prison. (Coleridge J.)
14. Noted: one suggestion is that this holding would turn every obstruction of a right of way into imprisonment. The answer offered is that there must be something like personal menace or force accompanying the obstruction. He rejects that answer. (Coleridge J.)
15. Noted: his illustration is that if both ends of a street were walled up in the night, the inhabitants would be imprisoned. If only one end were walled up and an armed force stood outside to stop passage that way, he would feel equally clear there was no imprisonment. If there were, the street would be the prison, and yet none would be confined to it. (Coleridge J.)
16. Noted: he knows that Lord Denman has strongly held a directly contrary opinion. He fears he overlooks some difficulty, but has not found one. In his view the rule should be made absolute for a new trial. (Coleridge J.)

Williams J. (judgment read by Coleridge J. in his absence)

1. Noted: he refers to what Patteson J. has written. It explains how the only question before the Court is raised. It depends on whether the facts amount to an imprisonment in point of law. (Williams J.)
2. Noted: he restates the facts. A part of Hammersmith Bridge, generally used as a public footway, was set apart for seats to view a regatta. It was separated from the carriage way by a temporary fence. (Williams J.)
3. Noted: the plaintiff insisted on passing along that part and tried to climb the fence. The defendant, clerk of the Bridge Company, pulled him back, but the plaintiff climbed over. (Williams J.)
4. Noted: the defendant then stationed two policemen, who stopped him going forward. The plaintiff was told he might go back into the carriage way and reach the other side. He refused and stayed about half an hour. (Williams J.)
5. Noted: if a partial restraint of the will were enough for imprisonment, that undoubtedly took place. He wished to go one way and was prevented, but another course was open. (Williams J.)
6. Noted: there is little doubt about the meaning of imprisonment and its usual definitions. Any difference of opinion is scarcely possible. The difficulty arises when the general rule is applied to the facts of a particular case. (Williams J.)
7. Noted: Blackstone (3 Bl. C. 127) says every confinement of the person is an imprisonment. It may be in a common prison, a private house, the stocks, or by forcibly detaining one in the public street. This may seem to imply more force than is necessary to make an imprisonment. (Williams J.)
8. Noted: Lord Coke, in his Second Institute (2 Inst. 589), speaks of a prison in law and a prison in deed. So there may be a constructive as well as an actual imprisonment. Personal violence need not be used. (Williams J.)
9. Noted: Bull. N. P. 62 gives the bailiff example. A bailiff with a writ says that the person is his prisoner. The person submits, turns back or goes with him. Even without touching, it is an arrest, because he submitted to the process. (Williams J.)
10. Noted: similarly, a person may direct a constable to take another into custody. The constable tells the person to go with him, and they walk in the direction the constable points out. That is constructively an imprisonment though no actual violence is used. (Williams J.)
11. Held: in such cases little may be said, but much is meant. The party addressed feels he has no option and no more power of going in any but the one direction prescribed than if held. It is that entire restraint upon the will which constitutes the imprisonment. (Williams J.)
12. Noted: in the Buller passage, if the party addressed had run away, it would be no arrest unless the bailiff actually laid hold of him. (Williams J.)
13. Noted: he supposes someone erecting an obstruction across a public passage in a town. A person with a right of passage is refused and, after some delay, is compelled to return and take a circuitous route. He does not think that person was imprisoned during the delay, or could sue for false imprisonment, whatever other remedy he might have. (Williams J.)
14. Held: the imprisonment in this case was not complete. He knew of no case or definition which supports a man being imprisoned during the time that an escape is open to him if he chooses to use it. (Williams J.)

Patteson J.

1. Noted: this was an action of trespass for assault and false imprisonment. The defendant pleaded son assault demesne to the assault. To the imprisonment he pleaded that the plaintiff assaulted him before the imprisonment, so he gave the plaintiff into custody. The replication was de injuria to each plea. (Patteson J.)
2. Noted: the first plea puts in issue who committed the first assault. The second puts in issue whether the imprisonment was before or after any assault by the plaintiff. (Patteson J.)
3. Noted: if the defendant made the first assault and much continuous assaulting followed, the plaintiff must succeed on the first plea. (Patteson J.)
4. Noted: if there was a continuous imprisonment, and the plaintiff's assault took place in trying to escape it, and not before it, the plaintiff must succeed on the second plea. (Patteson J.)
5. Noted: if the plaintiff assaulted the defendant before the imprisonment, he must fail on the second plea, even if his assault was justifiable. He should then have replied a justification. Examples are defence of his close, or that he was exercising a right of way which the defendant obstructed. (Patteson J.)
6. Noted: he sets out the facts. The Bridge footway was fenced for seats to view a regatta. The plaintiff tried to climb the fence, and the defendant, as clerk of the Bridge Company, seized his coat and tried to pull him back. The plaintiff climbed over. (Patteson J.)
7. Noted: two policemen stopped the plaintiff going forward. He was told he might go back into the carriage way and reach the other side. He remained above half an hour. The defendant still refused to let him go forward. The plaintiff tried to force his way, assaulted the defendant, and was taken into custody. (Patteson J.)
8. Held: the first assault was committed by the defendant, when he tried to pull the plaintiff back as he climbed the fence. The jury found the whole transaction continuous. So the plaintiff keeps his verdict on the first plea. (Patteson J.)
9. Noted: if what passed before the plaintiff's assault was in law an imprisonment, it was continuous. His assault would then have been during it, and in trying to escape, not before it. He would keep his verdict on the second plea too. (Patteson J.)
10. Noted: if it was not an imprisonment, the plaintiff should have replied the right of footway and the obstruction. He should have said he necessarily assaulted the defendant in exercising that right. Not having done so, he is not entitled to the verdict. (Patteson J.)
11. Held: the case is reduced to one question. That question is whether what passed before the plaintiff's assault was, in point of law, an imprisonment. (Patteson J.)
12. Noted: in general, if one man compels another to stay in a given place against his will, he imprisons him as much as if he locked him in a room. It is not necessary that the person be touched. Compelling a man to go in a given direction against his will may also amount to imprisonment. (Patteson J.)
13. Held: if one man merely obstructs another's passage in one direction, whether by threat of personal violence or otherwise, he does not imprison him. The other is left at liberty to stay or go in any other direction. (Patteson J.)
14. Noted: the obstructer does wrong if there was a right to pass that way. He would be liable in an action on the case (a claim for the particular harm caused) for obstructing the passage. He would be liable for assault if he touched the person or threatened him so as to amount to an assault. (Patteson J.)
15. Held: imprisonment is "a total restraint of the liberty of the person, for however short a time". It is not a partial obstruction of his will, whatever inconvenience it brings. (Patteson J.)
16. Why: the quality of the act cannot depend on the right of the other party. If stopping a man on the public highway is an imprisonment, so is stopping him further along a field he has entered by clear trespass. (Patteson J.)
17. Noted: a case was said to have been tried before Lord Chief Justice Tindal on this question. The plaintiff in that case was compelled to stay and hear a letter read against his will. That was doubtless a total restraint of his liberty while the letter was read. (Patteson J.)
18. Noted: he agrees with the definition in Selwyn's Nisi Prius, title Imprisonment (vol. ii. p. 915, 11th ed.). False imprisonment is a restraint on the liberty of the person without lawful cause. It may be by confinement in prison, stocks or house, or by forcibly detaining the party in the streets against his will. (Patteson J.)
19. Noted: Selwyn cites 22 Ass. fol. 104, B, pl. 85, per Thorpe C.J. The word there is "arrest". It appears to include detaining, as Selwyn puts it, and not to mean merely preventing a person from passing. (Patteson J.)
20. Held: the only imprisonment proved was when the plaintiff was taken into custody after he assaulted the defendant. The second plea was made out. The rule for a new trial ought to be made absolute. (Patteson J.)

Lord Denman C.J. (dissenting)

1. Noted: he had not drawn up a formal judgment. He hoped to the last that his brothers' arguments might alter his mind. After free oral and written discussion, his first impression remains. (Lord Denman C.J.)
2. Noted: if his view is wrong, the circumstances may partly account for it. A company unlawfully obstructed a public way for profit, took money from passengers and hired policemen. The plaintiff, wishing to use his right of way, was stopped by force and ordered to move in a direction he did not wish to take. (Lord Denman C.J.)
3. Noted: he was told at the same time that a force was at hand to compel his submission. That proceeding appears to him equivalent to being pulled by the collar out of one line and into the other. (Lord Denman C.J.)
4. Held: there is some difficulty in defining imprisonment in the abstract without reference to its illegality. It is not necessary to do so, because these acts amount to imprisonment. He understands the word to mean "any restraint of the person by force". (Lord Denman C.J.)
5. Noted: Buller's Nisi Prius (p. 22) says every restraint of a man's liberty under the custody of another is in law an imprisonment, whether in a gaol, house, stocks or the street. Without proper authority it is false imprisonment, for which an action lies. It is commonly joined to assault and battery (the actual use of force), because every imprisonment includes a battery, and every battery an assault. (Lord Denman C.J.)
6. Noted: so the technical language has received a very large construction. There need be no touching of the person. A locking up would be an imprisonment without touching. (Lord Denman C.J.)
7. Noted: Thorpe C.J., cited by Selwyn from the Book of Assizes (22 Ass. fol. 104, B, pl. 85), shows that even in very early times restraint of liberty by force was understood as the reasonable definition of imprisonment. (Lord Denman C.J.)
8. Held: he had no idea that anyone in these times supposed a particular boundary to be necessary. Restraint of a man's person from doing what he desires does not stop being an imprisonment because he may find some means of escape. (Lord Denman C.J.)
9. Noted: it is said the plaintiff was at liberty to go in another direction. He is not sure that was so in fact. The same unlawful power that stopped one course might, if he had acquiesced, have refused him any other. (Lord Denman C.J.)
10. Held: this liberty to do something else does not affect the question. As long as a person is prevented from doing what he has a right to do, it is of no importance that he may do something else. An unlawful condition does not show that he is not restrained. (Lord Denman C.J.)
11. Why: if I am locked in a room, I am still imprisoned though I might escape through a window. I am imprisoned though the exit is dangerous or inconvenient, as by wading through water or taking a circuitous route that delays my affairs. (Lord Denman C.J.)
12. Held: this is a total deprivation of liberty with reference to the purpose for which the plaintiff lawfully wished to use his liberty. Being effected by force, it is not the mere obstruction of a way, but a restraint of the person. (Lord Denman C.J.)
13. Noted: the case cited as occurring before Lord Chief Justice Tindal is much in point. He held it an imprisonment where the defendant stopped the plaintiff on his road till he had read a libel (a written defamatory statement) to him. The plaintiff was not prevented from escaping in another direction. (Lord Denman C.J.)
14. Noted: it is said that a special action on the case may be brought for damage from such obstruction. He asks whether he must then sue a new writ stating that the defendant used direct force to stop him. He asks whether he might be told he misconceived his remedy. All flows from the false imprisonment. That should have been the subject of an action of trespass and assault. (Lord Denman C.J.)
15. Noted: the jury properly found that the defendant's whole conduct was continuous. It began in illegality, and the plaintiff did right to resist it as an outrageous violation of the liberty of the subject from the very first. (Lord Denman C.J.)

Authorities

• Com. Dig. Imprisonment (G): says every restraint of the liberty of a free man is an imprisonment. Coleridge J. read it as pointing out that a prison need not be a place set apart for prisoners (Coleridge J.).
• 2 Inst. 482 (Lord Coke, on the Statute of Westminster 2d, in persona): every restraint of a freeman's liberty is an imprisonment, though not within the walls of any common prison. Not inconsistent with Coleridge J.'s view (Coleridge J.).
• Hobart and Stroud's case (Cro. Car. 209, cited in the text as Cro. Car. 210): the King's Bench prison is not one local prison, and every place where a person is restrained of liberty is a prison. Used to show that a prison need not be a set place (Coleridge J.).
• Statute of Westminster 2d (1 Stat. 13 Ed. 1, c. 48): the statute on which Lord Coke commented (Coleridge J.).
• Blackstone (3 Bl. C. 127): every confinement of the person is an imprisonment, including forcibly detaining one in the public street. Williams J. noted it may imply more force than is necessary (Williams J.).
• Lord Coke, 2 Inst. 589: speaks of a prison in law and a prison in deed, so imprisonment may be constructive (Williams J.).
• Bull. N. P. 62 (the bailiff and the writ): a submission to a bailiff's words is an arrest without touching. Williams J. used it to show that entire restraint upon the will makes an imprisonment (Williams J.).
• Selwyn's Nisi Prius, tit. Imprisonment (vol. ii. p. 915, 11th ed.): the definition of false imprisonment. Patteson J. agreed with it (Patteson J.). Lord Denman C.J. cited it for Thorpe C.J.'s words (Lord Denman C.J.).
• 22 Ass. fol. 104, B, pl. 85 (Thorpe C.J.): "arrest". Patteson J. read it as including a detaining and not merely preventing passage. Lord Denman C.J. read it as showing that restraint of liberty by force was the early meaning of imprisonment (Patteson J., Lord Denman C.J.).
• Buller's Nisi Prius, p. 22: every restraint of a man's liberty under the custody of another is an imprisonment. The technical language has a very large construction (Lord Denman C.J.).
• The case before Lord Chief Justice Tindal (no name given): a person was stopped to hear a letter or libel read to him. Patteson J. said this was a total restraint while the letter was read (Patteson J.). Lord Denman C.J. said it was much in point (Lord Denman C.J.). Humfrey alluded to it in argument, with no name or details.
• Bull. N. P. 18, Oakes v. Wood (3 M. & W. 150) and Oakes v. Wood (2 M. & W. 791): authorities referred to in argument on the pleadings (footnote 7).
• Also cited in footnotes: the pleadings at p. 749 and the note (a) at p. 751 of the report (footnotes 1 and 2).

Provisions mentioned

• Statute of Westminster 2d (1 Stat. 13 Ed. 1, c. 48): Lord Coke's comment on it, in persona, is the source of the passage that every restraint of a freeman's liberty is an imprisonment. Its text is not set out in the judgment (Coleridge J.).

Judgement

1. Coleridge J. held that the rule should be made absolute for a new trial.
2. Williams J. held that the imprisonment in the case was not complete, since an escape was open to the plaintiff.
3. Patteson J. held that the only imprisonment proved was when the plaintiff was taken into custody after his assault. He held the rule for a new trial ought to be made absolute.
4. Lord Denman C.J. dissented. He would have held that the acts amounted to imprisonment.
5. The order was: Rule absolute. So a new trial was ordered by the majority.
6. The report states no order on costs.

Legal Principle / Ratio

Imprisonment needs a total restraint of the person within a boundary that the person cannot pass. Blocking one route, while another way is open, is only partial obstruction and is not imprisonment.

Key holding: "a total restraint of the liberty of the person, for however short a time" (Patteson J.).

Critical Analysis

Analysis based on the judgment text.

• The Court was divided. Coleridge J. and Patteson J. required a boundary or total restraint. Williams J. rested on the open escape. Lord Denman C.J. said an open way does not remove restraint if the person is stopped from doing what he lawfully wishes.
• Lord Denman C.J. doubted that the way back was really open. He said the same unlawful power might have refused any other course.
• Coleridge J. said the wrongfulness of the acts was laid aside. Patteson J. said the quality of the act cannot depend on the right of the other party. Lord Denman C.J. took the illegality into account in describing the facts.
• The majority left the plaintiff other remedies. Patteson J. named an action on the case for obstruction, and assault if there was touching or threat. Lord Denman C.J. doubted that such an action would be safe from a misconceived-remedy objection.

Significance

• The majority separated partial obstruction from imprisonment.
• It applied the test that there must be a bounded space that the person is prevented from leaving.
• Williams J. and Lord Denman C.J. tested this by whether an escape was open. They disagreed on its effect.
• The opinions show that force need not be applied to the body. A submission to words can be an arrest. Yet the restraint must be total.

Exam-Important Points

• Rule: imprisonment is a total restraint of liberty, for however short a time. Blocking one way, with another open, is not enough.
• Trap: it does not matter that the block was wrongful. Coleridge J. and Patteson J. said the wrongfulness or the right of way does not decide whether there was imprisonment.
• Rule: touching is not needed. Williams J. noted that submission to a bailiff's words is an arrest. Patteson J. said compelling a person to go in a given direction may amount to imprisonment.
• Trap: this was a 3-1 decision. Lord Denman C.J. dissented, and defined imprisonment as any restraint of the person by force.
• Remedy left open by the majority: an action on the case for obstructing the way, or assault if there was a touch or threat.

Prepared from the full text of the judgment. The judgment has no numbered paragraphs, so opinions are cited by judge. The citation (1845) 7 QB 742; 115 ER 668 appears in the judgment text.