
    Stoddard v. Bird.
    Action for false imprisonment may be maintained, where one procures process without cause of action, and causes another to be arrested with design to extort money from him without any legal or equitable foundation.
    One may make use of legal authority in such manner as to become liable to an action for false imprisonment.
    ActioN of trespass for false imprisonment. The declaration states, that, “ On the 26th day of September, A. D. 1783, in tbe northeast precinct, in Dutchess county, state of New York (within the county of Litchfield), with force and arms, a bigb-banded assault on tbe body of tbe plaintiff tbe defendant did make, and did then and there, without law or right, in a spiteful and malicious manner, take, seize, and cause to be arrested, tbe body of tbe plaintiff, and with tbe same force and arms him did unlawfully, wrongfully, and falsely imprison, bold, abuse and restrain from bis liberty for tbe space of three days, until be did make, cause and compel tbe plaintiff to pay large sums of money, in order to obtain bis liberty,” etc.
    Tbe general issue being pleaded, tbe case appeared to be thus: Tbe plaintiff was administrator on tbe estate of Josiab Stoddard, deceased: He bad made a representation of insolvency to tbe Court of Probate for tbe district of Sharon; commissioners bad been appointed, who received and examined tbe claims exhibited against tbe estate, and bad reported tbe same to be insolvent. No average bad been to tbe creditors or ordered to be made to tbe Court of Probate, but was still pending. Tbe defendant bad exhibited a debt of thirty-six shillings lawful money against said estate, to tbe commissioners, previously to tbe imprisonment complained of, which was allowed. While these matters were thus pending before tbe Court of Probate, tbe plaintiff being in tbe state of New York, tbe defendant there applied to a justice of tbe peace, and prayed out a capias against tbe person of tbe plaintiff, for tbe same debt of thirty shillings, which bad been exhibited to tbe commissioners, as a claim against tbe estate of Stoddard, deceased. Tbe plaintiff was taken by .virtue of this writ, carried before tbe justice, there held in custody till be procured special bail, and was held to a trial; on which, judgment was rendered against him for debt and cost.
    ' It was not agreed by tbe parties, nor did it appear on trial, whether tbe process issued by tbe justice was regular, and consistent with tbe laws of tbe state of New York.
    
      Mr. Beeve and Mr. Tracy, 'for the plaintiff,
    urged that Luther Stoddard, the plaintiff, was not liable, by the laws of Connecticut, to any kind of suit for the debt which Bird had exhibited to the commissioners, during its pendency before the Court of Probate. The process issued by the justice was illegal, and not warranted by the laws of the state of New York; for the clause, ac etiam billae, could not legally be inserted. The British statute of the 13 Car. II, which prohibits the inserting of that clause, against executors and administrators, has been explicitly adopted by the state of New York. But admitting the form of the writ to have been regular, Stoddard ought not to have been arrested; the usual return of common bail only, should have been made: Therefore, the suit being groundless in the first instance, and illegal in the process and execution, the defendant who procured it, with a wicked intention, was guilty of a trespass, and must be liable to respond in damages.
    Mr. Boot and Mr. Canfield, for the defendant,
    admitted the laws of this state as urged on the other side, but denied that by the laws of the state of New York any other form or process could have been issued, than the one issued by the justice. If special bail was not required by law in case of an administrator, the officer did wrong not to make return of common bail and dismiss Stoddard: But this would be the wrongdoing of the officer, and not of Bird, the defendant. If the writ legally issued, no action of false imprisonment can be sustained against Bird for the act of the officer.
    If there was any informality in the writ, or if the action was not sustainable before the justice, Stoddard has waived all advantages which he might have derived from that quarter, by not pleading in abatement at that time. As he pleaded to tbe merits, be acknowledged tbe jurisdiction, and' admitted tbe legality of tbe process; and tbe judgment being rendered against bini on tbat issue, it is to be presumed tbat tbe right of action was well supported, according to tbe laws of tbat state. Ld. Raym. 229, Trescot v. Carpenter and Mann. Tbe present action is entirely misconceived; for if Stoddard bas any right of action, it must be case and not trespass.
    The jury found a verdict for tbe plaintiff; on which tbe court delivered tbe following opinions:
   Ellsworth, J.

Right of action against an administrator is transitory, and tbe action may be brought wherever be is found. And though be is not to be arrested according to tbe mode of process in this state, be may be, for aught appears in tbe state of New York. And tbe presumption- is be may, because tbe authority there issued a warrant to make tbe arrest, and held him, to trial upon it.

As to tbe suit there, being without cause, and vexatious; this is not to be intended, but tbe contrary, after a judgment in tbe plaintiff’s favor, on a full trial upon tbe merits; but if it was so, yet if tbe arrest and bolding was by a lawful precept, an action of false imprisonment is not tbe proper remedy, but an action on tbe case, or upon tbe statute against vexatious suits. I think no trespass is here proved; and, therefore, tbat tbe jury have found wrong.

PiteiN, T. As it appears tbat tbe administrator conducted properly, be ought to be protected, otherwise no person would be safe in tbat situation. Tbe laws of this state undoubtedly protect administrators from arrests on account of tbe deceased whom they represent: For if it was otherwise, and they might be legally arrested in this way, whenever they should happen to go out of the state, they would be liable to be ruined: Therefore, I think, the process was illegal, and the suit unwarrantable.

SheeMAN, J. Undoubtedly there are instances where one may make use of legal authority in such manner as to become liable to the action of false imprisonment: As where one will arrest another by legal authority, without any cause of action, and not return the writ, etc. But in this case it does not appear but the suit was legally instituted agreeably to the forms of that state; and the presumption is rather that way, for the action went to trial, and judgment was rendered by court and jury against the present plaintiff. I think that so far justifies the transaction, that this kind of remedy is not applicable to the supposed injury. I am, therefore, of opinion the jury are wrong.

Dyee, J. Every cause will have its own peculiar complexion and leading cast. The facts here are conceded. The action of false imprisonment always goes on this ground, is the imprisonment complained of right, or is it wrong? If it appears to have been right, the action fails; if wrong, the action is supportable. "View the complexion of this case: It appears that Bird, the defendant, designed to extort from the plaintiff, in this way, a sum of money which he could not recover by law, and which Stoddard was not bound by justice to pay; this is abusing the law. Perhaps there may be another remedy for the injury, but I think that does not bar this suit. It is clear that Bird had no right in this state to arrest Stoddard, or even summon him before a court of justice, for that debt, under the circumstances which then attended it. I think he had no right to do it there. But there was a writ taken out to arrest the body of Stoddard. Did be mean to bave sucb a writ? He undoubtedly did, for no other would answer bis purpose. Tbe intention and design, then, was wrongful, and tbe act injurious; so tbat I cannot see but tbe jury bave done right.

Law, O. I. So far seems to be agreed, tbat tbe defendant has done wrong:- Tbe only question is, whether tbe plaintiff has chosen bis proper and legal remedy. There are many cases where a man may bave two remedies for tbe same injury. He may then make bis election which be will pursue. Tbe law means tbat a remedy shall be provided for every wrong, tbat will do equal justice to both tbe parties. ’Will this action do complete justice? I am not certain but it will do as ample justice as any other. There is no evidence but tbat tbe defendant applied for just sucb a writ as was issued; and it is most reasonable to suppose tbat be did, and tbat tbe officer conducted rightly, and agreeably to tbe precept. Tbe plaintiff has consequently been injured by tbe procurement and wrong act of tbe defendant. I am therefore of opinion tbe verdict is right.

It was accordingly established.  