
    Chapman vs. Dyett and others.
    
      Trespass lies for an arrest under voidable process, set aside by the court as irregularly issued.
    In an action for false imprisonment for an arrest on a ca. sa., set aside as irregularly sued out previous to the issuing of a ji. fa. in a bailable action, it was held, that the plaintiff was not bound to show that notice of bail in such action had been regularly given.
    
      It is -no defence to such action that the plaintiff has assigned his interest in the same to a third person.
    Whether such cause of action is assignable, quere.
    
    This was an action for false imprisonment, tried at the New-York circuit in December, 1831, before the Hon. Ogden Edwards, one of the circuit judges.
    Dyett obtained an assignment of a judgment which had been rendered in this court against Chapman, and procured the substitution of an attorney in the place of the attorney who had obtained the judgment. A ca. sa. was then issued in the name of the substituted attorney, and delivered by his partner to a sheriff, upon which Chapman was arrested on the 27th or 28th September, 1827. On the 31st October following, the ca. sa. was set aside by this court, with costs. Special bail had been put in and filed in the cause in which the ca. sa. was issued, and the ca. sa. was sued out without the previous issuing of af.fa. Upon shewing these facts, the plaintiff rested. The defendants moved for a nonsuit, insisting that as the ca. sa. was voidable only, and not void, the appropriate action, if any, was case, and not trespass ; and further, that to entitle the plaintiff to sustain his action, he should have shown that notice of bail was duly given in the cause in which the judgment was obtained, upon which the ca. sa. issued. *The motion for a nonsuit was denied. The defendants then proved a notice from the plaintiff to them, bearing date in 1829, that he had assigned all his interest in this suit to one Jacob Taiman for a valuable consideration; and they insisted that such notice was evidence of satisfaction to the plaintiff for his alleged damages, and a bar to his right to recover; which position was overruled by the judge in his charge to the jury, who found a verdict for the plaintiff. The defendants moved for a new trial.
    J. A. Lott & H. W. Warner, for the defendants.
    S. P. Staples, for the plaintiff.
   By the Court,

Savage, Ch. J.

It is insisted by the defendants, that as the ca. sa. was voidable only, and not absolutely void, trespass is not the proper form of action to which the plaintiff ought to have resorted in this case. It has been settled by the decisions of this court, that the issuing of a ca. sa. in an action in which special bail had been filed, previous to the suing out and return of a fi.fa., is irregular, and may be set aside on the application of the defendant. The defendant alone, however, can take advantage of the irregularity. If bail are sued after the return of such a ca. sa., it is no defence to them that a Jñ.fa. had not been previously issued. So if the sheriff is sued for an escape of a person confined upon a ca. sa. so issued, it is no answer for him to say that the ca. sa. was irregularly sued out; and the reason is, that it is optional with the defendant in the ca. sa. to consider it regular or not; it is voidable at his election. It is not therefore void, but is a justification to the officer, and to the party also until set aside. It is true, as contended by the defendants, that when the arrest was made, no trespass was in fact committed ; but the doctrine of trespass by relation is as well settled as any in the law, at least since the Six Carpenters’ case. When the ca. sa. was set aside for irregularity, it ceased to be a justification to the parties guilty of the irregularity; as to them it is void and as if it had never existed. The arrest therefore by relation became void and without authority, and the action of *trespass was the proper action. The judge therefore decided correctly in refusing to nonsuit the plaintiff on the objection to the form of action. On the motion to set aside the ca. sa., the fact that notice of bail had been given must have been shown, 6 Cowen, 608 ; at all events, it was a matter not inquirable into on the trial of this cause.

The other point made upon the argument is equally untenable. Whether the plaintiff had assigned the damages to be recovered in this suit to another or not was immaterial. The questions were whether the defendants had been guilty of a tresspass ; and if so, what damages ought they to pay. It was not pretended that the consideration paid for the assignment was paid by the defendants ; there was no pretence of an accord and satisfaction; there was no reason offered to the court why the plaintiff should not recover, and the defendants pay the damages which the plaintiff had sustained. Whether those damages are to be received by Chapman or Taiman can make no difference to the defendants. They are to atone for the violation of the law of which they have been guilty ; the consideration paid by Taiman to Chapman constitutes no such atonement. Whether such a case of action is assignable is not now a question ; but whether it is or is not, the suit must be in the name of Chapman.

New trial denied.  