Art. 2. Remedies.

stored to his liberty after false imprisonment (see 3 Bl. Comm. 128). But all are now obsolete save habeas corpus.

Habeas corpus is to end the imprisonment and regain liberty (see 1 Fiero on Special Proceedings [2d ed.], 57); and is a special proceeding. The civil action is to recover damages for the wrong and lies whether the habeas corpus has been brought or not.

The custodian of a prisoner who is discharged upon habeas corpus has no interest in the subject-matter and would not be compromised in a future action for false imprisonment. The decision in habeas corpus would not bind him. Matter of Quinn, 2 App. Div. 104, 37 N. Y. Supp. 534, 73 St. Rep. 149.

SUBDIVISION 3.

No Injunction Granted.

In Davis v. American Society, etc., 75 N. Y. 362, it was held that an equitable action will not lie to restrain an officer of a society for the prevention of cruelty to animals from making an arrest for a violation of the statute. The question whether there has been a violation of such statute cannot be determined in an equitable action. The guilt of a person accused of a crime is to be determined in a common-law court by a jury.

SUBDIVISION 4.
Jurisdiction.

By virtue of section 2863, subdivision 3, of the Code, a justice of the peace cannot take cognizance of a civil action where it is brought to recover damages for false imprisonment.

A civil action for false imprisonment is not included within the statutory jurisdiction of the municipal courts of city of New York. See Code, § 3215. Nor of The City Court of Albany or Troy. See Code, § 3223.

As regards the jurisdiction of the courts of the city and county of New York over territory in the lower bay, which constitutes the county of Kings, under the Consolidation Act (Laws of 1882, chap. 410), see Midford v. Kann, 32 App. Div. 228, 52 N. Y. Supp. 995.

By virtue of section 317, subdivision 2, Code of Civil Procedure, the City Court of New York has jurisdiction in an action in favor of or against a person "belonging to or on board of a vessel in the merchant service to recover damages for false im

Art. 2. Remedies.

prisonment committed on board the vessel, upon the high seas, or in a place without the United States. But this section does not confer upon the City Court authority to proceed as a court of admiralty or maritime jurisdiction." Note that section 3187, applicable to proceedings in certain marine cases, provides that the article does not prevent plaintiff from commencing and conducting in the ordinary manner an action for a cause specified in section 317, subdivision 2.

The Supreme Court has jurisdiction and is bound to entertain an action for false imprisonment between residents of the State for imprisonment by the plaintiff in a foreign country. Tupper v. Morin, 25 Abb. N. C. 398, 12 N. Y. Supp. 310, distinguishing Burdick v. Freeman, 10 St. Rep. 756, cited 61 App. Div. 342.

There are many statutes relating to both civil and criminal actions bearing upon the legality or illegality of the imprisonment. These various statutes must, of course, be consulted by the practitioner when a case of false imprisonment arises under them. For instance, the duration of the imprisonment of a person convicted under civil process is limited by section 111 of Code of Civil Procedure. There can be no imprisonment for money due on interlocutory costs. § 15. The time of arrest in justices' courts is limited. $2900. § 2900. See, generally, sections of Code relating to Imprisonment for Contempt; Discharge of Judgment Debtor; Discharge from Execution against Person, etc.

SUBDIVISION 5.

Statute of Limitations.

By provisions of section 384 of the Code of Civil Procedure an action for false imprisonment is among those which must be commenced within two years.

The action of false imprisonment is barred in two years. Hurlehy v. Martin, 31 St. Rep. 471, 10 N. Y. Supp. 92.

Where the tort is continuing the right of action is also continuing. Moak's Underhill on Torts, 69, citing Whitehouse v. Fellowes, 10 C. B. (N. S.) 765. This very continuance of the imprisonment de die in diem is a new imprisonment, and, therefore, the bar of limitation commences to run from the last, and not from the first, day of the imprisonment. Moak's Underhill on Torts, 69, citing Hardy v. Ryle, 9 B. & C. 608.

Where the plaintiff alleged that he was confined in an insane

Art. 2. Remedies.

asylum pursuant to a conspiracy between defendants, he does not thereby enlarge the scope of the action and make applicable a different rule of limitations than that which applied to the action of false imprisonment. Such action is governed by the two years' limitation and not by the six years' limitation applicable to an action for personal injury where no other period of limitation is prescribed. Oakes v. Oakes, 55 App. Div. 576, 101 St. Rep. 427, 67 N. Y. Supp. 427.

It should be noted that the arrest once at an end the statute begins to run. In Dusenbury v. Kielly, 58 How. Pr. 286, it was said: "The action for false imprisonment accrues the instant the imprisonment takes place and becomes complete the moment the imprisonment ceases." This case was affirmed in 85 N. Y. 383. In this case the warrant on which the arrest was made was dismissed, vacated, and set aside although the proceedings were continued. The court held that the statute began to run at the termination of the imprisonment, and that the subsequent proceedings did not amount to a continuance of the original imprisonment. "If the proceedings continued the imprisonment continued." Again, in Van Ingen v. Snyder, 24 Hun, 81, it was held that the right of action began when the imprisonment ceased, citing Dusenbury v. Kielly, supra.

SUBDIVISION 6.

Survival and Assignment.

By virtue of section 1910, subdivision 1, Code of Civil Procedure, an action to recover damages for personal injury cannot be transferred, and by virtue of section 3343, subdivision 9, an action for false imprisonment is included among those actions for personal injuries.

As to assignment of an action for false imprisonment, see Chapman v. Dyett, 11 Wend. 33.

By directing the illegal issuance of a body execution a creditor becomes a joint tort feasor with his attorney, and the assignment by the plaintiff to him of the claim against the attorney in consideration of the discharge of the original judgment also discharges the attorney. The court says: "The law will not permit the principal tort feasor to buy and enforce against his subordinates claims for damages occasioned by his instructions." Baker v. Secor, 22 St. Rep. 97, 4 N. Y. Supp. 303.

6. Detention must be against will of plaintiff.. 561 7. Detention originally lawful may become un

One of the features distinguishing false imprisonment from malicious prosecution is that in the former, malice is not necessary. For example, it is false imprisonment where an officer, though in good faith, arrests the wrong person. See Price v. Harwood, 3 Campb. 108. So, too, where the right person is arrested, but the warrant describes him by the wrong name. v. Ely, 4 Wend. 555; Gurnsey v. Lovell, 9 Wend. 319.

Scott

At common law trespass, not case, lay for false imprisonment. Accordingly, liability proceeded, not on the theory of evil motive or of negligence, but of acting at peril. Therefore, to entitle plaintiff to recover, it is not necessary for him to allege or prove either malice or want of probable cause. Malice is material only so far as the question of damages is concerned. It is immaterial whether the detention be accomplished with or without legal process. Hale on Torts, 244, citing Cunningham v. East River El. Co., 17 N. Y. Supp. 372; Rosen v. Stein, 54 Hun, 179, 7 N. Y. Supp. 368; Hewitt v. Newburger, 66 Hun, 230, 20 N. Y. Supp. 913.

Of malice as an element in false imprisonment, the court, in Stevens v. O'Neill, 51 App. Div. 366, 64 N. Y. Supp. 663, 98 St. Rep. 663, says: "The law imputes malice to an unlawful act. There is undoubtedly a difference between malice which the law infers from the act itself, and malice which is the product of a proved mental operation. The court had the right to submit the

Art. 3. Elements of the Wrong.

question of malice in this case. From the very grossness of the act itself, malice may be inferred."

Where the defendant's servants caused the plaintiff to be searched on the suspicion that she had stolen a watch,— Held, that the jury might infer legal malice from the occurrence, and, where the act was done in pursuance of a system adopted in the defendant's store, that punitive damages might be awarded, although there was no evidence of express malice. Stevens v. O'Neill, 51 App. Div. 364, 98 St. Rep. 663, 64 N. Y. Supp. 663.

On this point the Court of Appeals says "that malicious motives and the absence of probable cause do not give to a party an action for false imprisonment. They may aggravate his damage, but have nothing to do with the cause of action." Marks v. Townsend, 97 N. Y. 597.

It was held in Perry v. Sutley, 45 St. Rep. 61, 18 N. Y. Supp. 633, that where probable cause is not proved, malice may be inferred.

In Hewitt v. Newberger, 66 Hun, 231, 48 St. Rep. 811, 20 N. Y. Supp. 913, the court said: "Evidence offered to prove malice was properly rejected. Malice is not an element of false imprisonment." Citing 7 Am. & Eng. Encyc. of Law, 664. But note that it may bear upon the question of damage, supra.

In false imprisonment the want of probable cause must be shown, and malice need not be proven except upon the question of damages. Thorp v. Carvalho, 14 Misc. Rep. 554, 36 N. Y. Supp. 1, 70 St. Rep. 760. (The statement is open to criticism.)

The motive of the defendant is a proper subject for investigation to enable the jury to pass upon the question of exemplary damages. Fuller v. Redding, 16 Misc. Rep. 634, 39 N. Y. Supp. 109.

The gist of the offense is unlawful imprisonment, and averments of malice and want of probable cause are merely matters in aggravation of damages. Ackroyd v. Ackroyd, 3 Daly, 38.

Where the facts alone establish want of probable cause malice will be inferred. Rosekranz v. Haas, 1 Misc. Rep. 220, 49 St. Rep. 222, 20 N. Y. Supp. 880.

The gist of the action for false imprisonment is unlawful detention, and motive will be inferred, so far at least as to sustain the action; and evidence to disprove actual motive only bears upon the question of damages. Burns v. Erben, 40 N. Y. 466.