
    Herrick against Manly.
    A plaintiff, who delivers to a constable a writ against the defendant in lua own suit, on which the defendant is taken and imprisoned on the order and direction of the plaintiff, cannot in an action against him, by the defendant for false imprisonment, under the general issue, give the special matter in evidence by way of justification under the statute for “ more easy pleading in certain suits, but he may do it in order to show that the defendant was not arrested by his instructions, but by virtue of a superior authority.
    This was an action of trespass for false imprisonment. The defendant pleaded not guilty. The cause was tried on the twenty-fifth day of May, one thousand eight hundred and three, before Mr. Justice Kent, at the Eensselear circuit. The plaintiff called Samuel Hawley, a constable, and proved by him, that he arrested and imprisoned the plaintiff by order of the defendant. The counsel for the defendant then asked the witness by whose authority he made such arrest and imprisonment ? whether it was not by virtue of an execution issued by a justice of the peace, delivered to him as constable, against the now plaintiff, in favor of the now defendant? The judge overruled these questions, being of opinion, that it was sufficient for the plaintiff to prove that Hawley imprisoned him by order of the defendant; and that it was not competent for the defendant to explain by the same, or any other witness, either the cause of the arrest, or the authority by which it was made.
    The defendant’s counsel then stated, and offered to prove, that Manly recovered judgment against Herrick before a justice; that execution issued against him on that judgment, and was delivered by Manly to Hawley, the constable; that Manly requested Hawley to imprison Herrick on the writ thus delivered, which he did; and that Herrick was liable to be imprisoned on the execution.
    These facts, it was contended, might properly be given in evidence under the general issue, inasmuch *as the defendant came within the statute for the more [*254] easy pleading in suits, &c. The judge overruled the testimony offered, and'a verdict was found for the plain tiff for fifty dollars damages.
    The case now came before the court on a motion for a new trial.
    
      Woodworth, for the defendant.
    Two reasons may be urged why the present verdict should be set aside. First, the judge refused evidence proper in mitigation of damages. Second, he overruled that which was proper in justification. As to the last position, it may be doubted whether the defendant could justify according to the statute (21st March, 1801, c. 47. 1 Bev. Laws, 234,) “for more easy pleading in certain “ suits,” though he certainly must be allowed to be within the spirit of it. The words are, “If (Sec. 1,) any action upon the case, trespass, battery, or false imprisonment, be brought against any sheriff" &c. or any other person who in their aid or assistance, or by commandment, do any thing, &e., it shall be lawful for every person aforesaid to plead thereunto the general issue, and give the special matter in evidence.” By a liberal construction of ihis act, it may well be said, that Manly acted “ in aid, and by commandment,” of the justice. An execution had issued ; it was delivered over to the present defendant by the justice, to be by him transmitted to the constable. The orders of the defendant, for the arrest and imprisonment, were nothing more than a repetition of what the justice commanded him to say. On the other point, the evidence must be considered as clearly proper to have been received, and the rejection, therefore, not warranted. Whether Manly had a substantial .defence to defeat the action or not, ■could be known only by disclosing facts, which would present a different case than that stated by the plaintiff. They ought, then, to have come before a jury, as a measure of damages. If asked whether the imprisonment was made under a lawful authority, or of his own will, the answer, according as it was given, would lead the jury to very different conclusion. Had it been done, the plaintiff in this case would not have been entitled to more than no-[*255] minai damages. *Suppose the action assault and battery, and the defendant, neglecting to plead son assault demesne, rests on non cul. At the trial the plaintiff proves an assault, but the same witness can testify that the plaintiff struck first; can it not be shown in evidence on the part of the defendant? Though this might not justify, it would greatly mitigate. The question on the trial, on the part of the plaintiff, “ Did you imprison the plaintiff by order of the defendant?” The question on his part was, “Were you authorized to do so?” The answer would have been “Yes 1 I have the execution to show;” but this was not permitted to be done. Whether this would have amounted to a justification or not, is immaterial; all that was wanted was, to show that the plaintiff was entitled to nominal damages only, and to reduce them to that. Again, suppose an officer acting under a void process, and the plaintiff proves an arrest, would not the court allow the defendant to show the process, though it was an illegal one ? This, it is true, would not be a justification, but it would be a mitigation. Therefore, in cases like this, the application is to the discretion of the court, and they will see that justice be done to the party aggrieved, when there has been an action against all conscience. Instead of six cents damages, 50 dollars have been given. This is not one of those cases where the court refuse new trials, because the sum recovered is so inconsiderable that it would be absurd to have recourse to another. The reason does not apply here, because, allowing the verdict goes the same way, the court are not sure the result will be the same: six cents only may be given, and then costs will not follow, unless the judge certify. But, as the verdict may be different, the court surely will never presume both that the verdict shall be similar, and that the judge will certify also. There are many circumstances to induce a new trial; there has not been a full disclosure of facts; the whole truth has not been told, and, therefore, justice has not been done.
    Allen, contra.
    On the point first argued, though the last that was made, it is to be observed, that the statute *of our state is a transcript of that of James; [*256] the authorities, therefore, on the construction of that, will govern in the consideration of the present case. The defendant, to avail himself of that statute, ought to show that he is ah officer within its meaning; that he was acting by virtue of an authority from the justice, or in .his aid, or by his command. If he does not do this, he cannot avail himself of the statute. Money et al. v. Leach, 3 Burr, 1742. Further, if the defendant is not shown to be liable, in consequence of neglect in complying with the justice’s command, he is not an officer within the meaning of the law. Doug. 307.  It is not stated that he received the execution from the hands of the justice; nor that he was an officer, nor acting in pursuance of any authority, nor in aid. It does not appear by what means the execution came into his hands. If he means to shelter himself under the justice of the peace, he must show a connection or privity between himself and the magistrate. This can only be done by pleading right. If justice has not been done, it is the party’s own fault. His mispleading is the source of his complaint. When the constable was asked whether he did not proceed upon an execution, it was a justification; and as no notice had been given that it was intended to be relied on, the plaintiff was not prepared, and might have been prevented from doing away its force, by showing it amounted to nothing. Hot, therefore, having done what the law requires in such a case, but relying on the general issue, the defendant is now precluded. It was enough for the plaintiff to prove that the defendant did imprison. This was all that could be thought necessary; the plaintiff rested his case at that point, and could never imagine it would be attempted to introduce a justification, of which no notice had ever been intimated. The complaint, therefore, now made, of injustice having been done, could never have existed, had the defendant adhered to the rules of practice. The testimony, therefore, was properly overruled, because, under the general issue, notice of justification ought to have been given. The witness having been the plaintiff’s, does not alter the matter. If the defendant is about to [*257] draw out from *him testimony not admissible, it is the same thing as if endeavored to be given by a witness on the part of the defendant, (see note, ante, p. 255,) and the plaintiff has a right to object. The court will not open a case again, where the expense pf going to a second trial will amount to as much as the damages given.
    
      
      
         The general rule is, that matter of justification must be pleaded. Bull. N. P. 17. Co. Litt. 282. b. But see Bingham, v. Garnault, Esp. N. P. 317, where one of the plaintiff’s witnesses was, on a cross-examination by a defendant in an action of assault and false imprisonment, allowed to relate what was said at the time in mitigation.
    
    
      
       That was an application to enter a suggestion on the roll, that the defendant was a constable, to entitle to double costs, the verdict having been found in his favor. By our law the jury who try the cause, asset» tbn treble damages given. Sec. 2.
    
   Lewis, Ch. J.

delivered the opinion of the court. An application is now made for a venire de nova, on the ground of misdirection on the second point of defence.

The defendant having been the mere bearer of the writ (which was an execution in his own suit) from the justice to the constable, can neither be considered as a - bailiff, or deputy, *within the letter or spirit of the [*258] statute, and, of course, not entitled, under the general issue, to give the special matter in evidence, by way of justification. The testimony, as it was offered, was, therefore, properly rejected. There is, however, a point of view, under which, had it been presented, it would have been proper, and ought to have been admitted. The only ground on which the liability of the defendant is contended for is, his having directed the officer, when he delivered him the process, to arrest and imprison the plaintiff. If, then, it could have been shown that the arrest and imprisonment was not a consequence of his instructions to the officer, but in pursuance of a competent and paramount authority, his plea would have been substantiated, and a verdiet would have passed for him. For if the arrest and imprisonment was the effect of any other cause than the instructions he gave the officer, he was, emphatically, not guilty, and it was not a case for justification. We are, therefore, of opinion, the verdict be set aside; but it must be on payment of costs, as no misdirection appears. See Schermerhorn v. Tripp, 2 Caines’ Rep. 108. n.

New trial, on payment of costs. 
      
       See also Code of Procedure, s. 149, et seq.
      
     