
    Rogers & Gracie against Chapman.
    ALBANY,
    Oct. 1827.
    On setting eeeding3, P7ñ good faith, for where^an^’action will, m consequence, technically lie, hutapparentiy nominal damages, the court will require in^ffsthitiate not to bring
    otherwise, where circumstances appear, calling for greater damages :
    As where an rilTexecutea oppressively.
    The defendant, a trader in the city of New York, but who l°dge(^ at Brooklyn, having put in special bail, the plaintiffs took judgment against him for $2574 91, which they assigned to Dyett, whose attorney, supposing the step regular, isued a ca. sa. Ho ft. fa. had previously been 07 ^ issued; and it was agreed on both sides, that the ca. sa. was jrregU]arj -^thin the statute, (1 R. L. 502.) The defendant had been arrested at Brooklyn, and imprisoned upon the . . ’. . „ ca. sa. m the common jan ol Rings county ; shortly alter which, and immediately on discovering the irregularity, the plaintiffs’ attorney offered the defendant’s counsel to discharge him, on his stipulating not to bring an action for the imprisonment. The stipulation -was declined; A 1 ' and
    J. V. Henry, for the defendant,
    now moved that he be discharged unconditionally.
    pje rea(j an affidavit, by which it appeared that at about 7 P. M. the defendant, having left his counting-house in the city, and proceeded to the house where he lodged at Brooklyn, was there, a little before 9 o’clock, arrested on the ca. sa. by a deputy sheriff, who proclaimed the arrest in presence of a number of persons present. He told the deputy he had no friends in Brooklyn, who would he bail for the jail liberties; but had such friends in the city; and requested time to send for them; offering, that if the deputy would wait for this purpose, he would compensate him for his trouble. The deputy refused to wait till morning, though the gentleman of the house offered him lodgings *gratis; and declined taking the. defendant to his, (the deputy’s own house,) though the defendant proposed to go there; and that the deputy should take certain proposed measures for his security till morning, the expense of which he would defray. This being refused, he was taken by the deputy 4 1-2 miles to the jail' in Flatbush; where he was confined in a small room with ten prisoners, nothing being offered him but a blanket to sleep upon. The weather during the night was cold; and there were several circumstances very disgusting and offensive. It was nearly 5 P. M. of the next day before he obtained the liberty of the jail limits;, which was on giving, as bail, two resident citizens of the city of New York.
    
      H. W. Warner, contra,
    read affidavits of Dyett and his attorney, and of Dyett’s agent who caused the ea. sa. to be. issued and delivered to- the deputy, denying all concern in the manner of the defendant’s treatment. He insisted that the parties concerned having acted in good faith, the defendant should stipulate not to bring any action for-the imprisonment.
   Curia.

That is true of a case where it is apparent that nominal damages, alone would be given. But the proceedings in this case were unusually severe; and the defendant may satisfy a jury that they were dictated either by the assignee or some agent. The deputy makes no affidavit explanatory of Ms conduct. We think the defendant should be left to his remedy by action.

Motion granted.  