
    COURT OF APPEALS.
    Charles Dusenbury, appellant, agt. William S. Keiley as receiver, &c., respondent.
    
      False imprisonment—Statute of limitations, from what time it begins to run—Malicious prosecution.
    
    The plaintiff was arrested on November 15, 1876, under a Stilwell warrant, and was released from custody on giving bonds for his appearance. The warrant was dismissed and set aside on February 3, 1877. The general term, on January 7, 1878, reversed such dismissal and ordered that the proceedings “ be and the same hereby are revived and restored.” At the close of the revived proceedings, a new order was made that defendant (plaintiff here) be rearrested. The new warrant was never served, the court of appeals having, in April, 1879, reversed the order directing it, and pronounced the original arrest illegal. The plaintiff, in July, 1879, began this action for false imprisonment:
    
      Held, 1. That plaintiff’s imprisonment ended on the vacation of the Stilwell warrant in February, 1877, and his cause of action for false imprisonment was then complete; and not having been brought within the two years limited by the statute, was wholly lost.
    
      2. The plaintiff having, after the revival of the proceedings, voluntarily appeared, no compulsion being used, and by his appeal to the courts having prevented his threatened rearrest, there was no new imprisonment; and the proceedings following his discharge in February, 1877, did not amount to a continuance of the original imprisonment.
    3. If the plaintiff had sued for a malicious prosecution, either by itself or in addition to his claim of false imprisonment, the result might have been different.
    
      Qumre — Could this action he maintained against the defendant as receiver? in other words, in his official capacity; as the acts of the receiver, as such receiver, are the acts of the court, and as such the court cannot commit an assault and battery or false imprisonment.
    
      May, 1881.
    This action was brought in the court of common pleas for the city and county of Hew York, to recover damages for false imprisonment. At the trial, before hon. chief justice Daly and a jury, the complaint was dismissed upon the ground that the cause of action was barred by the statute of limitations. Thereupon a motion was made for a new trial upon the judge’s minutes, which was denied. Judgment was accordingly entered on December 11, 1879, and on the same day an order was entered denying said motion. An appeal was taken from said judgment and order to the general term of said court, which affirmed the same {See 58 How., 256). This appeal is taken from said judgment of affirmance. The facts out of which the cause of action for false imprisonment grows, are as follows : On the 14th day of Hovember, 1876, counsel for William S. Keiley, as receiver of the property and effects of one Selah Hiler, presented to Hon. Gilbebt M. Sfeib, as one of the justices of the superior court of the city of Hew York, the affidavit of Mr. Linus A. Gould, dated October 25, 1876, and the exhibits thereto attached. Thereupon, under and pursuant to an act of the legislature, entitled “ an act to abolish imprisonment for debt, passed April 26, 1831,” and the acts amending the same, said justice Speib issued a warrant in the name of the people of the state of Hew York to the sheriff of the city and county of Hew York, commanding him to arrest the plaintiff, Charles Dusenbury, and bring him before said justice, to be further dealt with according to law. Thereafter, and on the 15th day of November, 1876, the said sheriff appeared before said justice with the plaintiff, Dusenbury, along with Hall & Blandy, his attorneys, and also D. M. Porter, Esq., counsel for said William S. Keiley, and the sheriff did then and there make the following return to the said warrant: “ Defendant arrested and produced herewith. William C. Connor, sheriff.” And thereupon, and on said last named day, the plaintiff, Dusenbury, by his said attorneys, objected to the regularity of the proceedings, the jurisdiction of the court, and the sufficiency of the papers on which the warrant was issued, and after-wards and in accordance with the provisions of said act, interposed an affidavit verified by his oath, controverting the facts upon which the said warrant was granted. And also gave the recognizance and bond as provided by said act, and thereupon the further hearing in the matter was adjourned to the 25th day of November, 1876. On said 25th day of November, 1876, said plaintiff, Dusenbury, with his attorneys, and also counsel for said William S. Keiley, appeared before said justice, who then and there proceeded to hear the allegations and proof produced in support of said warrant, the same being voluntarily produced by counsel for said Keiley, all of said proof being documentary evidence, and consisting of the following described documents, papers and proceedings, to wit: I. The judgment roll in the action in said superior court, William S. Keiley, as receiver, against Charles Dusenbury, dated 25th of January, 1876. II. The order for examination of judgment debtor in the same action, and the examination of the judgment debtor thereunder. III.' The printed case on appeal (Randall agt. Dusenbury, as trustee). IY. The printed summons and complaint in an action in said superior court (Dusenbury agt. Randall et al.) Immediately upon said papers and proceedings being offered in evidence, counsel for said plaintiff, Dusenbury, objected to their admissibility as incompetent — they were admitted in evidence, subject to their legal effect, to be thereafter discussed—the complainant rested his case and a further adjournment was taken to December 1,1876, and on said last-named date a further adjournment was taken to December 8, 1876. On said December 8, 1876, all of said parties again appeared before said justice, and counsel for this plaintiff, Dusenbury, elected not to introduce any testimony on his part, but to rest on the case as it then stood, and to move for a dismissal of the warrant at such time to which the proceedings might be adjourned, and at the same time said D. M. Porter, Esq., on behalf of said William S. Keiley, decided not to offer any further proof, and thereupon said case was finally submitted, and was further adjourned to the 11th December, 1876, for summing up. On the 11th day of December, 1876, the matter was again adjourned to December 15,1876, when a further adjournment was had to the 26th day of December, 1876,-for final judgment. On the 26th day of December, 1876, counsel on behalf of said plaintiff, Dusenbury, moved •a dismissal of said warrant, and subsequent proceedings thereon, and argued in support thereof, and counsel appeared on behalf of said William S. Keiley as receiver, and argued in opposition to said motion, and for the committal of said plaintiff, Dusenbury, and each counsel submitted written points, and said justice reserved his decision until the 15th day of January, 1877. On the said 15th day of January, 1877, said justice rendered his decision in the words and figures following: “ The warrant in this case should not have been granted.” Afterwards, on the 17th day of January, 1877, on the application of counsel 'for said Keiley, and upon his affidavit sworn to on the 17th day of January, 1877, and upon the other papers therein referred to, said justice granted an order to show cause, returnable on the 19th day of January, 1877, why there should not be a rehearing and reargument in the proceeding, and why the plaintiff therein (Keiley) should not have leave to examine the defendant, therein (this plaintiff) or pnt in other proof, and why the proceedings subsequent to the submission of the matter to said justice should not be vacated and set aside, and stayed all proceedings on the part of the said defendant (this plaintiff) in the meantime. . On the 19th day of January, 1877, the matters referred to in said order to show cause were adjourned at request of Keiley’s counsel, to January 22, 1877, at said time and place; and on said 22d day of January, 1877, they were further adjourned at like request to January 25, 1877. On the 25th day of January, 1877, a counter affidavit was interposed on" behalf of said Dusenbury, and arguments were made on behalf of both plaintiff and defendant on said order to show cause, and said justice reserved his decision until the 1st day of .February, 1877, when he made and rendered his decision thereon on the whole cause in the words and figures following, that is to say:
    “I have carefully examined the points presented by the counsel for the plaintiff on his reargument of the case relating to proceedings under the Stilwell act, and can see no reason for changing the views heretofore expressed. The motion must be denied, with costs.” On the 3d day of February, 1877, the parties appeared before said justice by their respective counsel, on notice of settlement, whereupon said justice made, and there was entered in the clerk’s office of said superior court, an order on said decision, dated the 3d day "of February, 1877, vacating and setting aside said warrant, and exonerating the bail from liability, and awarding costs. Thereupon the cause was, on the application of said Keiley, removed by certiora/ri to the general term of the supreme court, held in the first department, and said general term, on the 15th day of October, 1877, reversed said judgment and order in said matter, and remitted the same to respondent, as a justice of said superior court, to be further proceeded with according to law, which said order was made the order of the superior court of the city of New York, by an order of said justice Subir, dated 7th of January, 1878. And thereafter, on or about January 15,1878, the matter came on for hearing before said justice, and was from time to time adjourned until April 8, 1878, when the same was finally disposed of by said justice, on the same evidence as was produced and read on the first hearing; and said justice decided that the creditors’ allegations were sustained, and that the said Dusenbury (this plaintiff) had done each and every of the acts alleged in the affidavit of Linus A. Gould, upon which said warrant was issued ; and ordered that said Dusenbury be committed to the jail of the county of New York, in the city and county of New York, to be there detained until he should be discharged according to law. Thereupon the cause was removed on application of said Dusenbury by certiorari to the supreme court, general term, held in the first department, and said general term, on the 7th day of January, 1879, “ ordered and adjudged that the order of the said justice Spieb, and the proceedings therein by the said justice, be in all things affirmed.” Thereupon an appeal was taken by Dusenbury to the court of appeals from such last-mentioned order, and from the order of said general term first above referred to. Said appeals were duly argued and submitted, and after due deliberation had thereon, said court of appeals, on the 25th day of April, 1879,- ordered and adjudged that the order of the general term of the supreme court and the warrant of judge Speir for the arrest of said Charles Dusenbury, dated 14th November, 1876, and all proceedings had thereunder, be and the same were thereby vacated and set aside upon the ground and for the reason that said justice never had any jurisdiction in the matter (See Court of Appeals decision, 57 How., 274). The said judgment and proceedings were remitted to the supreme court, and thereupon, upon Hay 28, 1879, an order of the supreme court was duly made and entered upon said remittitur making the said judgment of the court of appeals the judgment of said supreme court, and vacating and setting aside said order and warrant and all subsequent proceedings thereunder. Within six weeks from said last-named order, to wit, on July 7th, 1879, this action was commenced to recover damages for such false imprisonment. The case was tried before Hon. Charles P. Daly and a jury, on October 22, 1879, and resulted in a dismissal of the complaint, upon the ground that the cause of action was barred by the statute of limitations, and on that ground alone. The only question presented on this appeal, therefore, is whether the cause of action was barred by the statute of limitations at the time the action was commenced. Defendant’s counsel claims that inasmuch as plaintiff gave his bond, and thereupon was discharged from actual custody on the 15th day of November, 1876, and has not been in actual custody since that date, and this action not having been commenced until more than two years thereafter, to wit, July 7, 1879, that the statute of limitations is a bar to this action, and the justice held that the action should have been brought within two years after plaintiff was first discharged by judge Speir, which was February 3, 1877- While we, on the other hand, insist that the plaintiff Dusenbury was originally arrested on November 15,1876, and continued under legal arrest until his acquittal on the 3d day of February, 1877, and that as soon as that acquittal was reversed by the supreme court, general term, and its order and that of judge Speir founded thereon, dated respectively 15th October, 1877, and January 9, 1878, this plaintiff again became rearrested in contemplation of law under the original warrant, and continued in constructive imprisonment afterwards and continuously down to and including the final decision and entry of the judgment of the court of appeals and supreme court order founded thereon reversing the conviction, which was in April and May, 1879. In which event the present action was brought in time, as it was commenced within six weeks thereafter.
    
      Hall dk Blcmd/y, for appellants.
    I. Actual imprisonment is not necessary to constitute an imprisonment (Brushaben agt. Hegeman, 22 Mich., 266; Hawk agt. Ridgway, 33 Ill., 473). Any restraint put upon the freedom of another by show of authority or force, is sufficient to constitute an imprisonment (Warner agt. Riddiford, 4 C. B. [N. S.], 206). It is not necessary for the jHaintiff to show that the defendant used violence, or laid hands on him, or shut him up in jail or prison to sustain an action for false imprisonment. It is sufficient to show that the defendant at any time or place, in any manner restrained the plaintiff of his liberty or detained him in any manner from going where he wished, or prevented him from doing what he desired (Hawk agt. Ridgway, supra; Smith agt. State, 7 Humph., 43). If a person is arrested and threatened with imprisonment upon a void writ in a civil action, and is ' compelled to promise and procure the promise of others that he will not abscond, and is subjected to expense in procuring an order to set aside the writ, he may recover for this interference with his person and restraint of his liberty, although he is not actually imprisoned (Bonesteel agt. Bonesteel, 28 Wis., 245; 30 Wis., 511). If a person is commanded by a constable to go with him, and the order is obeyed, and they walk together in the direction pointed out by the constable, that is constructively an imprisonment, though no actual force be used; for the party addressed feels that he has no option, no more power of going in any but the one direction presented to him, than if the constable or bailiff had actual hold of him, and it is that entire restraint upon the will which constitutes the imprisonment (Williams, J., Bird agt. Jones, 72 B., 743 ; 2 Inst., 589 ; Bull [N. S.], 62). “ If you put your hand upon a man, or tell him he must go with you, and he goes, supposing that you have the right and the power to compel him, that is an arrest ” (Tindal, C. J., Wood agt. lane, 6 C. & P. 774 ; 3 Allen, 495; Lansing agt. Case, 4 N. Y. Leg. Obs., 221; Searle agt. Veits, 2 N. Y. Sup. [T. & C.], 224). A demonstration looking to an arrest, which, to all appearances, can only be avoided by submission, operates as effectually, if submitted to, as if the arrest had been forcibly accomplished without such submission (Brushaben agt. Hegemon, 22 Mich., 266, supra; Ahern agt. Collins, 39 Mo., 146; Murry agt. Chase, 100 Mass., 79; cases cited above, and Johnson agt. Tompkins, 1 Baldw. [C. C.] 571). Gould J., held, in Doyle agt. Russel (30 Barb., 305): “ It has been held by high authority that if cruelty, malice and oppression appear to have occasioned or aggravated the imprisonment, they shall not cover themselves with the thin veil of legal forms, nor escape under the cover of a justification the most technically regular (1 Term R., 536, 537). From this Espinasse, in his Digest (p. 332), quotes as a principle: ‘ Though the original arrest might be warrantable, yet, for any subsequent oppression or cruelty, this action (false imprisonment) lies’” (See Decker agt. Jackson, 16 N. Y., 443; Winter agt. Kinney, 1 N. Y., 365).
    II. The effect of the general term order reversing the acquittal and the order of the justice founded thereon, directing plaintiff to appear before him on the 15th day of January, 1878, was to revive the warrant and restore the parties to the position they were in prior to said acquittal (Robinson agt. Plympton, 25 N. Y., 484; Wright agt. Rowland, 4 Abb. Ct. App. Dec., 649).
    III. In an action for false imprisonment every continuance of the imprisonment, de die in diem, is, in point of law, a new imprisonment, and, therefore, the time of limitation runs from the last day of such imprisonment, and not from the time of the issuing of the warrant (Hardy agt. Ryle, 9 B. & C., 608; Massey agt. Johnson, 12 East., 68; Bennett agt. Brown, 20 N. Y., 99; Ball agt. Gardiner, 21 Wend., 270; Addison on Torts, and cases cited).
    
    IV. We respectfully submit that the opinion of the general term, by his honor judge Van Beunt (59 How., 286), does not satisfactorily dispose of the question involved. The case is one of great hardship to the plaintiff, and this action was brought to requite him for his outlay in maintaining a successful appeal to this court, after meeting with every species of defeat below (See People ex rel. Dusenbury agt. Speir, 77 N. Y., 144). And in case of recovery against the defendant in this action, the damages will be paid out of a fund contributed by this very plaintiff, and which is now held by this defendant, to await the final result of this action (See Morris agt. Hiler, 57 How. Prac. Rep., 322).
    
      D. M. Porter, for respondent.
    I. This action cannot be maintained against the defendant as receiver, in other words, in his official capacity, because the acts of a receiver, as such receiver, are the acts of the court, and as such the court cannot commit an assault and battery or false imprisonment. ¡Neither will the court in such a case permit itself to be made a suitor in a court of law (Field and ors., agt. Jones and ano., 11 Geo., 413 [417]). This defendant, although acting as receiver in obtaining the judgment and seeking to enforce it, cannot be held liable as such receiver for this false imprisonment, because the court of appeals held the warrant under which the plaintiff was arrested was wholly without jurisdiction and void (The People ex rel. Dusenbury agt. Spier, 57 How., 275). Consequently the Stilwell warrant was no justification, i.e., it was an active, wrongful and personal misconduct on his part, for which he was personally liable, and he cannot be held liable as receiver. The defendant was appointed receiver by the court of common pleas, and he instituted the Stilwell act proceedings and procured the warrant in the superior court, which court had no jurisdiction over the proceedings; in other words, there was no law authorizing the proceedings complained of in that court, consequently the defendant did not act within the scope of his authority, nor in the business of his receivership, nor under any order of the court, because the act being illegal from its inception it was a willful assault, and is distinguishable from the cases of Camp agt. Barney (4 Hun, 373) and Cardot agt. Barney (63 N. Y., 281). The suggestion that the intent to institute the Stilwell act proceedings was to increase the fund to satisfy the judgment creditor’s claim cannot avail, because the act was “ willful ” and illegal, which is the dividing line (Wright agt. Wilcox, 19 Wend., 342 [343, 345] ; Levin agt. Russell, 42 N. Y., 251; Fraser agt. Freemam,, 43 N. Y., 566). It was misconduct on the receiver’s part. It was not any part of his duty as such receiver to do an illegal act. Any attempt to increase the estate without lawful authority was misconduct on his part,- for which he would be only personally liable (Levin agt. Russell, 42 N. Y., 251; Fraser agt. Freeman, 43 N. Y., 566). “Ho court or officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the existence of facts on which jurisdiction depends ” (Harrington agt. The People, 6 Barb., 607). This was not a question of excess of jurisdiction, but of total want of jurisdiction. An act done where the court has no jurisdiction is a nullity (Shriver's Lessee agt. Lynn, 2 How. [U. S.], R., 43). Even a judgment, where the facts do not show jurisdiction, would be void (Kelly agt. Archer, 48 Barb., 68). A receiver, “ when appointed, becomes the officer of the court, bound to obey their orders and directions, and money or estate in his hands is regarded as being in the custody of the law ” (Devendorf agt. Dickinson, 21 How. Pr., 275). At most, where ministerial duty is violated, the officer, although for most purposes a judge, is still civilly liable for such misconduct, but he is so liable in his individual, not in his official capacity (Blythe agt. Tompkins, 2 Abb. Pr., 468 [472] ; Wilson agt. The Mayor, &c., of New York, 1 Denio, 595 [599]). “ The question is whether the proceedings are void on their face ” (Blythe agt. Tompkins, supra). Under the decision of the court of appeals, not only had the court no jurisdiction, but the whole proceedings were void, that is, a nullity. “ Good faith does not excuse the defendant for causing the plaintiff’s arrest on a process that charged him with no offense against the laws of his country ” (Blythe agt. Tompkins, supra, 472). Apply these principles to the case at bar and the defendant is not liable .officially, and there is no cause of action against him as receiver.
    
      II. The plaintiff, on November 15, 1876, gave his bonds for, and was discharged from imprisonment, and the justice finds “ that the said defendant, Dusenbury (plaintiff herein), has been released from the custody of the sheriff, &c., on giving the bonds required by the statute.” Bonds were given only once, on November 15,1876. In addition to that, the judge having charge of the proceedings, by his judgment duly entered, discharged him and his bail on February 8, 1877. That put an end to the imprisonment more than two years before the commencement of this suit (July 7, 1879), therefore this action cannot be maintained {Sec. 384 of the Code). And this is especially so, as the bonds under which he was discharged, November 15, 1876, could not have been enforced (Broadhead agt. McConnell, 3 Barb., 175; Homan agt. Brinckerhoff, 1 Denio, 184; Cadwell agt. Colgate, 7 Barb., 253; cited with approval, and reaffirmed in Coleman agt. Bean, 32 How., 370, 381; S. C., 3 Keyes, 97). An action will lie at once for an arrest under a void Stilwell act proceeding, without any reversal of the proceedings (Collamer agt. Elmore, cited and affirmed in Mosher agt. The People, 5 Barb., 575, 577). The bonds were given on November 15, 1876, and there was only one set of bonds given, under which, as before said, Hr. Dusenbury’s imprisonment ended on November 15, 1876, and not only was the plaintiff, Hr. Dusenbury, discharged on February 3,1877, by the judgment of judge Speie, but the bail were also discharged. In any event, this cause of action did not accrue later than that day. We have shown that the bonds could not have been enforced, and having been given in a void proceeding, his appearance was consequently voluntary ( Watts agt. Willett, 2 Hilt., 212 ; The People ex rel., &c., agt. The Justices, &c., 74 N. Y., 406).
   Finch, J.

This action was for false imprisonment, and was successfully defended upon the ground that the time limited for its commencement had expired.

The plaintiff was arrested under «what is known asjthe Stjlwell act, on the 15th day of ¡November, 1876. He alleges in .his complaint that arrest, his imprisonment in the office of the sheriff for several hours, his removal to the superior court, where-he was also imprisoned for several hours, and then that he. was detained and restrained of his liberty under and by force of the proceedings instituted, until about the 26th day of April, 1879 ; and that such arrest was illegal and unauthorized and without reasonable cause. The original imprisonment and its illegality are not now disputed. It is claimed, however, on the part of the defendant, that such arrest and imprisonment terminated on the 3d day of February, 1877, and at that date the warrant was dismissed, vacated and set aside, the bail given by the plaintiff exonerated, and he himself discharged from custody and set at liberty. That fact is proven by the production of the decision and order of the justice of the superior court, before whom the proceedings were pending, and which terminated them in the manner and with the effect described. When this order was made the plaintiff’s imprisonment ended. He went out of court entirely free, no longer in custody, in no respect restrained of his liberty. The original warrant had spent its force, had accomplished its wrong, had been vacated and annulled, and become dead process. A complete and perfect cause of action for the false imprisonment had arisen, and could at once have ■been maintained. It was not brought within the time limited by the statute, and hence was wholly lost, and incapable of ■being enforced, unless subsequent events affected and changed the result. Such is the contention of the plaintiff, and - to ■sustain it he relies upon the following facts : After the discharge in February, the present defendant, by writ of certiorari, removed the proceedings into the supreme court, and at a general term thereof, held on the 15th of October, 1877, the determination of the superior court was reversed, and an order entered directing such reversal, and that the said proceedings had-before the respondent, Hon. G-ilbeet ¡M¡. Speib, •as a justice of the superior court of the city of ¡New York, be and the same hereby are revived and restored.” On the 7th day of January, 1878, this order of reversal was made an. order of the superior court, and it was also directed that Dusenbury be required to appear under the original warrant and proceedings,” and that his bail produce him on the 15th day of January, 1878, for further proceedings according to law.

Up to this date it is quite evident that, since the February preceding, and for almost an entire year, the present plaintiff had been wholly free from imprisonment, entirely at large, and in no manner restrained of his liberty. The original imprisonment, therefore, was certainly not continuous beyond the discharge which ended it; When the last order was made he was under no arrest or restraint whatever. At the appointed time he appeared in the superior court. That appearance, so far as the evidence shows, was voluntary. Its purpose was to defend himself against a possible rearrest, and prevent any new imprisonment.

At the close of the revived proceedings a decision was made adverse to Dusenbury, and the order thereupon entered directed “ that a commitment be issued to the sheriff directing that he, as such sheriff, rearrest such defendant Charles Dusenbury, and that said defendant Charles Dusenbury be committed to the jail of the county, to be there detained until he shall be discharged according to law.” This order recognized that Dusenbury was not under arrest, that the original warrant was spent and had become dead process, and directs a new warrant and a new arrest under it. That new warrant was never served, and the new arrest was never made. The order directing it, affirmed by the general term, was reversed in this court, and the original arrest pronounced illegal and without authority. That ended the controversy. Dusenbury, by his appeal to the courts, prevented the threatened rearrest, and from the time of his first discharge he was never at all' imprisoned or put under restraint.

He claims, however, to maintain his action upon the ground that the proceedings following his discharge were coercive, and amounted to a continuance of the original imprisonment. We cannot so regard them. If the proceedings continued, the imprisonment did not. After the reversal by the general term Dusenbury appeared, as his counsel testifies, by request. Ho compulsion of any sort was applied. He might have put his prosecutor and the court to the test. He might have waited a new arrest, but chose rather to prevent it than to defy and punish it. He says his bonds remained; but they had been discharged and were absolutely void (Caldwell agt. Colgate, 7 Barb., 253; Homan agt. Brinckerhoff, 1 Den., 184; Coleman agt. Bean, 3 Keyes, 97). The whole proceeding was without authority and illegal (Dusenbury agt. Keiley. 57 How., 274). Certainly, therefore, after the actual discharge, the present plaintiff was in no manner restrained of his liberty. The. pending proceedings, the war on paper, divorced from any personal restraint, could not coerce him, for they were without authority and powerless, and did not coerce him, as he submitted to them only to resist their legality, and did that voluntarily and not upon any compulsion.

It is argued that by the order of reversal of the general term the original warrant and arrest were “revived and restored.” Hot at all. It was only the proceeding, the litigation, the prosecution, that was revived and ran on to its final determination. We do not see how that order could have the effect to revive an imprisonment which had ended, any more than a similar order could have revived a past assault and battery. There could be a new arrest and a new imprisonment. The original warrant had exhausted its power and its office. It had become dead process, and could not be revived or continued in force. To put the party again under arrest or restrain his liberty required a new exercise of judicial power ( Wood agt. Dwight, 7 John. Ch., 295; People ex rel. Roberts agt. Bowe, 81 N. Y., 45). The court and the prosecutor understood this fact. The new order made after the reversal and at the close of the second hearing proceeded on the assumption, which was entirely sound, that the old warrant was exhausted and Dusenbury at liberty, for it ordered the issue of a new commitment, by force of which he should be again taken into custody. If that commitment had been executed, there would have been a new arrest, a new false imprisonment, a new cause of action, not a continuance of the first one. But the new trespass was not committed. The whole proceeding was reversed without, in the meantime, any interference with the personal liberty of the party assailed.

But it is said he thought he was coerced; he believed it was necessary to obey the orders of .the court, and so was under a sort of constructive compulsion.- That can hardly be said of one who, through his counsel, is denying the jurisdiction of the court and insisting that its orders are illegal. But if otherwise, the result sought would not follow. In Warne agt. Constant (4 John., 32) the prisoner stayed on the jail liberties after a supersedeas, under a mistaken idea that his liberty was not regained until a formal discharge by the sheriff, and for that cause brought an action of false imprisonment. “ It was held that his detention was his own act, purely voluntary, and it mattered not that he was mistaken as to his rights.

If, as was suggested by the courts below, the plaintiff had sued for a malicious prosecution, either by itself or in addition to his claim for false imprisonment, as was the case in Doyle agt. Russell (30 Barb., 305), upon which the appellant largely relies, the result might have been different.

It would be very just that plaintiff should have a remedy for the long prosecution which he had endured, but the remedy which the law gave him has been lost by his own delay, and cannot be restored to him.

The judgment must be affirmed, with costs.

All concur, except Folgeb, O. J., absent.  