BATTERSEYS case S c sub nom Fletcher v harcot Hutton consider bet v Gibbins ad  Elizabeth refer to burrow v Rhodes Q b a action upon the case be bring against  one Hordecre upon a assumpsit and be declare that the defendant have arrest  one Battersey by virtue of a commission of rebellion out of the cinque port  and that the plaintiff keep a common inn the defendant bring the say Battersey  to his inn and request the plaintiff to keep he adais and a night and promise  in consideration there upon that he will save he harmless and be show that be  keep the prisoner accord and that the say Battersey bring a action of false  imprisonment against he and recover against he upon which the action accrue  and upon non assumpsit plead it be find for the plaintiff and now it be move  in arrest of judgement because he have not show that the say Battersey winch  be lawful arrest and imprison and then if a man will without cause arrest a  man and promise in this case no action will lie for it be no consideration  because that the imprisonment be unlawful but Hobert chief justice Hutton and  winch contrary for be the imprisonment lawful or not lawful he may not take  notice of that as if I request another man to enter into another man ground  and in my name to drive out the beast and impound they and promise to save he  harmless this be a good assumpsit and yet the act be tortuous but by Hutton  where the act appear in it self to be unlawful there it be otherwise as if I  request you to beat another and promise to save you harmless this assumpsit be  not good for the act appear in it self to be unlawful but otherwise it be as  in our case when the act stand indifferent but Hobert say it may be there be a  difference between a public officer and a private man for if the sheriff  arrest a man unlawful winch er p and promise as before this be a good  assumpsit but perchance otherwise of a private man as here but in the  principal case the defendant have plead non assumpsit and this imply a lawful  imprisonment for otherwise the defendant may have give the unlawful  imprisonment in evidence and judgement be command to be enter for the  plaintiff