
    SERAPIO ARTEAGA, Respondent, v. WILLIAM C. CONNER, et al., Ex’rs, &c., et al., Appellants.
    Sheriffs—“ remand" for re-arrest of defendant for non-justification, of sureties—right to issue—liability of officers executing.—False imprisonment—Code of Procedure, §§ 188, 189.
    An indorsement made by the sheriff upon an undertaking given by a defendant upon his arrest, directing that defendant be “ remanded to jail for non-justification of the within undertaking,” &c., is not a judicial process, and affords no protection to the officer executing the direction, or to the jailer who confines defendant thereunder1, unless the sheriff, by virtue of his liability as bail, had authority to surrender such defendant.
    Where the justification of defendant’s sureties is postponed by consent of plaintiff’s counsel, the fact of knowledge by the sheriff of the existence of such stipulation, is immaterial, in an action against him for false imprisonment for arresting such defendant before actual default by his sureties, except as bearing upon the right to exemplary damages against the sheriff.
    Before Sedgwick, Ch. J., and Speie, J.
    
      Decided December 5, 1881.
    Appeal from a judgment entered upon a verdict of $1,000 for plaintiff, against William C. Conner,_ Brb and Watson.
    This case has been tried before, when verdict was directed for defendants. On appeal the verdict was set aside (46 Super. Ct. 91).
    The action was for alleged false imprisonment. The deceased Conner had been sheriff, and during his term, arrested plaintiff by virtue of an order of arrest. The plaintiff gave the usual underbaking with sureties. These were excepted to, and from time to time, the justification was adjourned, until finally it was stipulated that defendant have five days after the decision of a motion to vacate the order of arrest, within which to serve notice of justification. A deputy of the sheriff sent to the present plaintiff’s attorneys, a note that the undertaking should be approved of at once, either by the judge on justification, or by consent. The attorneys answered in a note which enclosed a copy of the stipulation. It was a question on the trial whether this note reached its address. After the sheriff’s term had expired, he wrote upon the undertaking the following: “ Serapio Arteaga is hereby remanded to jail for non-justification of the annexed undertaking, and James H. Brb is hereby deputized to execute the within remand,” and signed it as late sheriff. The defendant, Brb, thereupon, by virtue of the undertaking and its indorsement, arrested plaintiff and gave him into the custody of the defendant, Watson, who was warden of the jail, appointed by the sheriff in office. Watson committed him to jail. The time for justification of the sureties under the stipulation, had not expired.
    
      Vanderpoel, Oreen & Cuming, attorneys, and Almon Ooodwin, of counsel, for appellants.
    
      Nelson Smith & Leavitt, attorneys, and John Brooks Leavitt, of counsel, for respondent.
   Per Curiam.

There is a question made as to the liability of deféndant Watson. It is argued that his action in detaining plaintiff in jail was justified by the fact that the remand was regular in form or on its face, and he was therefore protected, as officers are, who execute process that is regular and valid in appearance. The remand was not a judicial process. The sheriff was no more than any other person would be who had become bail (Code of Pro. §§ 188, 189). His assertion of the existence of a fact, viz., that the bail had failed to justify, did not have any special force. It was the existence of the fact that would give authority to surrender. The jailer was bound to know that the person making the surrender had authority to make it.

It was also urged that it should have been left to the jury, as to whether notice of making the stipulation had reached the sheriff or any of his agents. In the first place, the letter containing the notice was admissible as affecting the measure of damages. There would have been ground for urging that, if the sheriff had received such notice, his action in arresting was so willful or malicious, that the plaintiff was entitled to exemplary damages. The objection to the letter was properly overruled. Afterwards, when the court held, that on the whole case, the plaintiff was entitled to only compensatory damages, it became immaterial for the jury to ascertain whether the notice had reached the sheriff.

The damages are not so large that the court can declare them to be excessive.

Judgment affirmed, with costs, and order denying motion for new trial, made upon the minutes, affirmed, with $10 costs.  