Art. 12. Parties.

or officer, an affidavit, to the effect that he was legally subpoenaed or ordered to attend, and that he was not so subpoenaed or ordered by his own procurement, with the intent of avoiding arrest. In his affidavit, he must specify the court or officer, the place of attendance, and the cause in which he was so subpoenaed or ordered. The affidavit may be taken before the officer arresting him, and exonerates the officer from liability for not making the arrest.

In Kreiser v. Scofield, 10 Misc. Rep. 350, 63 St. Rep. 413, 31 N. Y. Supp. 23, reversing 9 Misc. Rep. 200, 60 St. Rep. 839, 29 N. Y. Supp. 685, it was held that at common law the arrest of a privileged person is voidable only and not void and does not constitute trespass, and is insufficient to support an action for false imprisonment. Sections 863, 864 of the Code, however, authorize such an action for such arrest and give treble damages.

In the Kreiser Case it seems to be held that the action was conducted as a common-law action, and that no reference was made to the statute; therefore the statute could not be invoked because there was no such rule at common law. It seems also that the statutory action lies only against the officer or person making the arrest, and even they are not liable unless the person arrested claims his exemption and makes an affidavit, if required. It follows, therefore, that the statutory action does not lie either against the plaintiff, who has procured the arrest in the action, or against the plaintiff's attorney. See this case also for circumstances under which the privilege terminates and expires.

For decisions turning upon the arrest of persons privileged under the old £10 Act, see Percival v. Jones, 2 Johns. Cas. 49; Hess v. Morgan, 3 Johns. Cas. 84.

This action like other torts for a personal injury, being nonassignable, must be brought by the party imprisoned. But the

Art. 12. Parties.

wrong may be accompanied by loss to third persons standing in domestic or contractual relations to the person imprisoned. The injury in such case is, in the theory of law, an injury to property rights, and the action is not for the personal injury.

Thus, while an action for false imprisonment may be maintained against the putative father of an illegitimate child who retains its custody without right and against the consent of the child, the action can be brought only in the name of the child, whose rights were violated, and the recovery is for the benefit of the infant, and not for the benefit of the mother. If such parent sustain injury for the loss of services or medical attendance, the proper action is upon the case. The action for personal injury can only be brought in the name of the child. Robaling v. Armstrong, 15 Barb. 248, citing Reeves' Dom. Rel. 291; Whitney v. Hitchcock, 4 Den. 461; Cowden v. Wright, 24 Wend. 429; Bartley v. Richtmeyer, 4 N. Y. 43.

* *

The proper parties plaintiff in an action for injury done to a slave, servant, apprentice, or minor child, is well stated in the case of Woodward v. Washburn, 3 Den. 371: "It is a general principle that an action lies * in favor of the party who stands in place of the parent, by reason of which he sustains a loss of service, or has been put to expense in sickness and providing medical aid. But for the direct personal injury the person upon whom it is inflicted is entitled alone to the action and to the damage then recovered. The master or parent's right to recover rests upon the ground that he has been deprived of some services to which he was entitled, or has been put to some expense.' It was further held that the hiring of a person of full age for wages creates the relation of master and servant, and will enable the former to maintain an action on the case against one who imprisons such person, resulting in a loss of his services. See this case also for the distinction between servants and employees.

SUBDIVISION 2.

Party Instigating Imprisonment.

In trespass all who aid or assist are principals. Hence, one who directs the imprisonment of another is guilty of the imprisonment. So held in a case where the superintendent of police told an officer who made the arrest to take the prisoner back and lock him up. Such superintendent will not be permitted to show that

Art. 12. Parties.

the act was not in consequence of his request, for he cannot direct a trespass, and after its commission escape, upon the ground that the officer violated his duty in obeying the direction. Greene v. Kennedy, 46 Barb. 16, affirmed 48 N. Y. 653.

A defendant, therefore, who directs an arrest and imprisonment is liable. In contemplation of law, he committed those acts; and no man is allowed to incite another to trespass, and after its commission, to give his want of influence in evidence in bar of the action. Such a principle will enable a man to encourage another to commit murder, in his presence, and then escape, upon the ground that the homicide was malicious enough to have done the same thing if he had remained silent. Coates v. Darby, 2 N. Y. 517, overruling Herrick v. Manly, 1 Cai. 553.

Where a party is arrested under a warrant issued without jurisdiction, the persons instrumental in procuring it to be issued are liable to an action for false imprisonment. Lansing v. Case, 4 N. Y. Leg. Obs. 221, 8 Law Rep. 451.

One who directs a police officer to arrest another where the same is not justified is responsible for such arrest. Dodge v. Alger, 21 J. & S. 107. See also Wynn v. Hobson, 22 J. & S. 330.

Even if the plaintiff is not arrested on the distinct order of the defendant, yet, if he subsequently ratify the act of the officer making the arrest, he is liable. Callahan v. Searles, 78 Hun, 238, 60 St. Rep. 214, 28 N. Y. Supp. 904.

See authorities cited under previous articles.

SUBDIVISION 3.

Joinder of Defendants.

In trespass, all who aid or assist are principals. Greene v. Kennedy, 46 Barb. 16, affirmed without opinion 48 N. Y. 653; Coates v. Darby, 2 N. Y. 519.

All persons who accomplish, procure, aid, or assist in an unlawful detention are liable as principals. Liability may also attach by ratification, or by virtue of relationship of parties. Hale on Torts, 246.

Where a private individual directs an officer to arrest the plaintiff for breach of peace committed before the officer's arrival, which is done without a warrant and is illegal, both the private person and the officer are joint tort feasors. Wynn v. Hobson, 22 J. & S.

Art. 13. Pleading.

As to the liability of officer issuing process without jurisdiction, together with the liability of the party at whose instance the process was issued, see Vredenburgh v. Hendricks, 17 Barb. 183, cited Merritt v. Reed, 5 Den. 352. See Vosburgh v. Welch, 11 Johns. 175; Miller v. Brinkerhoff, 4 Den. 116.

In Holley v. Mix, 3 Wend. 351, it was said that this action is several as well as joint; that there can be but one assessment of damages; that, if an action be brought against two defendants, the plaintiff may elect to take his damages against either of them. If several damages are awarded by the jury, the plaintiff may cure the irregularity by entering a nolle prosequi against all but one, and take judgment against him alone.

For a case where it was held that the complaint should be dismissed as against one defendant, on the ground that there was no evidence to sustain the charge against him, see Carson v. Dessau, 36 St. Rep. 425, 13 N. Y. Supp. 232.

Where an action is based upon the fact that the plaintiff was arrested in Saratoga county by defendant, a deputy sheriff of Warren county, and was taken to and imprisoned in Warren county, an action may properly be brought in Saratoga county, as part of the cause of action arose there. Ellis v. Baker, 62 App. Div. 542, 71 N. Y. Supp. 88, 105 St. Rep. 88.

66

It seems that causes of action of false imprisonment and malicious prosecution may be united in the same complaint. They are consistent with each other, and the one is not destructive of the other, and it has been the common practice to unite them." Marks v. Townsend, 97 N. Y. 597, citing Doyle v. Russell, 30 Barb. 300; Burr v. Shaw, 10 Hun, 580; Dusenbury v. Keiley, 85 N. Y. 389; Carl v. Eyres, 53 N. Y. 14; Bradner v. Falkner, 93 N. Y. 515.

Art. 13. Pleading.

Causes of action for false imprisonment and malicious prosecution may be united in the same complaint, and are consistent with each other; but both actions cannot be maintained upon the same state of facts. Warren v. Dennett, 17 Misc. Rep. 87, 39 N. Y. Supp. 830, citing Marks v. Townsend, 97 N. Y. 594; Cunningham v. East River El. Co., 17 N. Y. Supp. 372; Ackroyd v. Ackroyd, 3 Daly, 38. See Warren v. Dennett, supra, for complaint which was held to state action for false imprisonment.

There is a dictum to the effect that a cause of action for false imprisonment and malicious prosecution cannot be alleged in different counts in the same complaint, in Nebenzahl v. Townsend, 61 How. Pr. 353, 12 Week. Dig. 511.

The actions for false imprisonment and malicious prosecution may be united in one complaint, and the plaintiff cannot be compelled to elect between them. The court says that the early cases hold that the two cases are essentially distinct, and cannot be united in one complaint, but that the rule appears to have been changed. Thorpe v. Carvalho, 14 Misc. Rep. 557, 36 N. Y. Supp. 1, citing Code, § 484, subd. 2; Marks v. Townsend, 97 N. Y. 594; Cunningham v. East River El. Co., 42 St. Rep. 212; Neill v. Thorne, 88 N. Y. 270.

Where the complaint in a single count contains allegations which might be treated, either as for false imprisonment or for malicious prosecution,- Held, that a judgment should not be sustained unless the proof established both causes of action. So held in a case where the defendant failed to demur, and was not entitled to compel election at commencement of the trial, and where it was assumed from the record that both causes of action were submitted to the jury. Tyson v. Bauland Co., 68 App. Div. 310, 74 N. Y. Supp. 59, 108 St. Rep. 59.

A cause of action for slander and one for faise imprisonment may be united in the same complaint, under section 487 of the Code. Held, also, that, on a motion to amend the complaint in the action for slander, the plaintiff should be allowed to add a count for false imprisonment. De Wolfe v. Abram, 6 App. Div. 172, 39 N. Y. Supp. 1029, reversed 151 N. Y. 186.

Where the plaintiff joined actions for false imprisonment and malicious prosecution, and the court refused to dismiss the complaint as to the latter, and the jury found for the defendant