ve ness iy Papen nieL, ae ay hs i } it es sid aan Law LIBRARY CORNELL Law SCHOOL THE GIFT OF Date Be ihta. by ABE. “ane THE Law AND PRACTICE IN ACTIONS FOR TORTS IN THE State oF New York Part I PRINCIPLES OF LIABILITY Part II INJURIES TO THE PERSON By J. NEWTON FIERO, LL. D., DEAN oF THE ALBANY LAW SCHOOL AND LECTURER ON THE LAw oF TorTs AUTHOR OF SPECIAL ACTIONS AND SPECIAL PROCEEDINGS. ALBANY, N. Y. MATTHEW BENDER 1903 CopPyRIGHT, 1903, By MATTHEW BENDER. J. B. LYON COMPANY PRINTERS AND BINDERS ALBANY, N. Y. PREFACE. I wave attempted to prepare a work which shall combine the theory of the Law of Wrongs and the practice in Actions for Injuries to the Person, in such a manner as shall be useful to the practicing lawyer, basing my views of usefulness and convenience very largely upon my own experience; following, however, in the main the classifi- cation adopted by the leading text-writers upon the subject. Like the Special Actions and Special Proceedings, this book has grown out of the collating of authorities for use in my own practice, followed in this instance by an analytical arrangement of the decisions. This collation and analysis of authorities is now extended so as to em- brace the general principles governing the Law of Torts, and the rules and practice in actions growing out of Wrongs to the Person. No attempt is made in this volume to consider the other im- portant divisions of the Law of Torts, as classified at page 13, viz.: “Wrongs to Property.” “Wrongs to Both Persons and Property,” and the class termed “ Miscellaneous Wrongs.” This work is, however, intended to be complete as to the divisions of the subject treated, and while it has been deemed alike unnecessary and impossible to cite all the New York cases in Part I, which is de- voted to the general principles of torts, the treatment of the subject covers both the Substantive Law and the methods of procedure under the Code, in each action involving an injury to the person. That is to say, both the law and the practice are given as held in and followed by the authorities, tracing the progress of the action from its com- mencement to its close. In very many instances rules of law and practice, with the decisions by which they are established, have been intentionally repeated under several different topics or subdivisions of the same topic, when this course was deemed most likely to subserve the convenience of the practitioner, the purpose being to furnish a practical, rather than a purely scientific and theoretical, treatise. Authorities are cited in every instance, and I have refrained from venturing upon the expression of my own views on controverted or undecided questions. I must take the occasion to express my high appreciation of the kindly manner in which my works on Procedure have been received by the Bar. J. NEWTON FIERO. Atpany, September 1, 1903. ART. ART. ABT. TABLE OF CONTENTS. PART I. Principles of Liability. CHAPTER I. INTRODUCTORY. Page. TL, Authorities: nes vs ssig sccuseeuavewinna pane sie ewarse suelo eisieteuaie' ois 1 TT, DEARITIONS ©. o4 si acoso rinake seus ties Wee eS See ta Beew ee sie Nas 3 TIT, Classification: ics soe sswloarads vie es sees epwean.s ahi ia a acer spare s08.5 10 CHAPTER Il. PERSONAL AND PRopERTY RIGHTS. EVGivill rights! gcc udesamseotesie eae nine cacisee detainees teh eee 14 II. Privileges and immunities of citizens .............0. eee ee eee 17 DUE, Die: PrOCESS OL: VA W oo. n.0058¢ 6d onace ae apauanac ose Avid ac Mates) aiec pura goracaye 19 EY; Political rights ssiasesguiserae teria iss ep eae anes ete ae ews 20 Vi Religious: liberty’ 25..ccnccc cad oa eant eaves eteaiee ates seep 22 CHAPTER III. ELEMENTS OF AN ACTIONABLE WRONG. I. A legal right must be violated and damage ensue............. 24 II. The law must give a remedy ........... cece cece cece eee e eee 29 III. The wrongful act must be the cause of the injury............. 30 IV. Malice as an element in torts ............ 00. cece cece eee 34 VY. Torts arising from or connected with contracts .............. 41 CHAPTER IV. RULES GOVERNING RIGHTS OF PARTIES IN TORTS. Ty Infants: sieges sete cea oa hinds combate ahs pidawid a aeuees 46 Subd. 1. Nature and extent of liability .................4. 46 2. Liability of parents for torts of infants........... 52 3. Statutory regulations as to actions by and against ADLADES® Lansrardijia’s ea cha-nlds es dare eareeesa ee RE EEN 52 4. Right of parent to recover for injury to child.... 53 {v] Vi TABLE OF CONTENTS. Page. Art. II. Married women ........ 060: c cece ee eee e teen e eens 54 Subd. 1. Actions between husband and wife ............-- 54 2, Liability to third persons .......-....-..--0--5- 55 3. Right of action by wife against third persons..... 57 4. action by husband for injuries to the wife ....... 59 III. uunatics ....... ibagh eee Gisdarunadedabee eAeln enamel aly’ 60 TV. Drunkards 2. cu eee eed ew ein Skea GEE REESE Med ee ee ayia 62 V. Innkeepers... 0... cece eee teen teens 63 Vis. (Carriers. ...¢ ese cabbie aS .G Wess a eee Reade eae ee gies BEERS 67 Subd. 1. Liability of carriers generally considered......... 67 2. Carrier of gOOdS ....... cece cece teen erect tenes 69 8. Carrier of animals ......... 0.00. ccc eee eee eee 74 4. Carrier of passengers .............e cece centers 74 5. Carrier of baggage «..cssssavesiievewersaeeeees ah VII. Master and servant ....... 2. ccc cece eee teen eee nee 78 Subd. 1. Rule respondeat superior ........ 0.0 c cece ee eee is 2. When relation of master and servant exists....... 80 3. Liability for acts of independent contractor...... 82 4, Liability of master for acts of servant .......... 86 5. Liability of master to servant .................. 91 VIII. Principal sand agent: sonic icccca eas auven cana aaG ee aes 96 Subd. 1. Powers and liabilities of agents ................. 96 2. Liability of principal for tortious acts of agent... 97 3. Rights of principal as against agent............. 100 4, Right of principal to follow funds diverted by BRON . ase once ae cavgeyeca ied, ca aaea wens Sears 101 IX. Landlord-and: tenant jjo:cc3 ss sue ven yea san ci4 sh cas eed eae 102 Subd. 1. Liability of landlord to tenant ................. 102 2. Rights of third persons against landlord......... 104 3. Rights of third persons against tenant .......... 105 4. When both landlord and tenant are liable 10 third POTSONS, ~o:2:5 spas. Cu aucielslesiato dg a-4 ia «Aton 2 sed a 107 X. Partners: 03 sea say sity os xen s2.5 shed wae decided d dua e ot Glo oud ame da 107 XI. Private corporations .......... 0... ccc cee cee cee cece eens 111 XII. Municipal and quasi-municipal corporations ................ 14 Subd. 1. Authorities on liability of municipal corporations. 114 2. Distinction between municipal and quasi-munici- pal corporations .................0.0 0.0.0 114 3. Quasi-municipal corporations, liability of, for torts. 116 4. Municipal corporations proper, liability of, for torts. 118 See. 1. General rule as to municipal liability... 119 2. Specific rule cannot be formulated...... 120 3. A distinction between political and cor- porate duties of municipality........ 121 4. Liability for acts of officers and agents.. 123 5. Not responsible for acts involving dis- cretion TABLE OF CONTENTS. vil Page. ArT. XII. Municipal and quasi-municipal corporations — (Continued). 7 Subd. 4. Municipal corporations proper, ete.—(Continued). Sec. 6. Liability for streets and highways...... 129 7. Liability for acts of boards or depart- THOENUS) Sil Siam wane ne aude Biota enn 131 8. Liability for acts of assessors and col- Iéctors of. taxes zac sci cae as 133 9. Liability for use of municipal property.. 136 10. Liability for consequential injury to PIOperty sesasdees sess seers anes 137 11. Liability for property destroyed by mob. 138 12. Not liable for damages from works of GONSETUCHION. 2250.5 sas toyces hes cence 139 XIII. Charitable corporations ............... 0.0 cece eee eee eee ee 140 XIV. Action by personal representative to recover for death by wrongful “act. samy esate adeno din ey enla ves stew ee says s 141 XV. Effect of death of party plaintiff or defendant .............. 143 XVI. Assignment of cause of action for tort .................... 150 XVII. Receiver, when liable for tort ........... 02.00.02 0c ee eeeeee 752 AVAIL. ‘Plaintiff, a. wrongdO@r cic cic cuits wees ee ene eae Oe se ee 153 XIX, Joint tort feasors 2425. qesds toads ieeasstudie soae hasan ae 156 Subd. 1. Wrongdoers are jointly and severally liable ...... 156 2. One satisfaction only can be had ............... 160 3. No contribution between wrongdoers ............ 162 CHAPTER V. EXEMPTION FROM LIABILITY. Apr. J. Acts of State: 2... .0.6 evans ae ee ge esas eee ora S 165 II. Chief executive and members of legislative bodies ........... 169 Subd. 1. Immunity of chief executive .............---++-. 169 2. Members of legislative bodies ...............---- 170 III. Judicial and quasi-judicial officers and proceedings ........... 171 Subd. 1. Judicial officers and proceedings ..............-- 171 2. Quasi-judicial officers and proceedings........... 175 TV... Publie: -OfiC6rs- 2a.e si vine sae he aos tas Bee ae eee ewiatgels Peres 180 Subd. 1. Nature and extent of liability ................-- 180 2. Liability for acts of subordinates ............-.. 184 3. To what extent protected by process ............- 185 V. Acts of necessity and inevitable accident ..............-+..-. 189 Subd. 1. Acts of necessity ......... 0... cece eee ee ees 189 2. Inevitable accident ..........-- cee eee ee cee eee 191 VI. Exercise of common-law and statutory rights ...... sgee was ¢ 193: Vili TABLE OF CONTENTS. CHAPTER VI. REMEDIES FOR WRONGS. Page. ART. J. Civil and criminal remedies not merged .........+-.+++-+-- 200 II. Civil remedies for wrongs ...........600 eee ee eee eee 201 Subd. 1. Self-defense and abatement,of nuisance .......... 201 2. Action of replevin .......... 6. cece ee eee teens 203 3. Equitable relief ......... 0. eee ee eee ees 204 4. Action for damages ............ 000 cee e ener eee 207 III. Jurisdiction ..................4.. hid 2.coe Ree te ead Ae Sawa 208 Subd. 1. Courts having jurisdiction of actions for wrongs.. 208 2. Jurisdiction of actions for injuries to the person and personal property outside the State....... 209 3. Jurisdiction of courts as to wrongs relating to real estate outside the State .................0000. 210 IV. Waiver of tort and effect of election of remedies ............ 212 Subd. 1. Waiver of tort: ..s sca yes ueyees wakes Meeks gee es as 212 2. What constitutes an election ..................-. 218 3. Effect of election of remedies ..............-.4. 220 V. Joinder of parties 0.6... 0... cece cece eee ees 223 Subd. 1. Joinder of plaintiffs .....................00008. 223 2. Joinder of defendants ............ eee eee eee eee 225 VI. Joinder of causes of action .......... 0... cc cece ee eee eee eee 228 Subd. 1. Joinder of causes of action .................00. 228 2. Counterclaims arising in tort .................. 232 VII. Enforcement of remedies in actions for torts ............... 239 Subd. 1. Method of enforcement of rights ................ 239 2s Attachment: < 2s sce sacs, a. je ayhese wars aioe lie olace ares ek 240 3. Arrest pending the action ....................0. 241 4, Execution against the person .................. 243 5. Discharge from imprisonment .................. 245 See. 1. Under section 572 of Code ............ 245 2. Under section 111 of Code ............ 246 3. Discharge under sections 2188-2199, 2200— BO LOL 20 de euois Gra anenelep hiding chuwy Ba ees Bee 247 VIII. Effect of discharge in bankruptcy ..................0.0000- 248 Subd. 1. Provisions of State and Federal statutes ......... 248 2. Decisions under Bankruptcy Law of 1867 3. Decisions under present Bankruptcy Act......... 251 CHAPTER VII. DAMAGES. ART. Ts. General TwWles:. concen icacdws dowd ods Vax eacccmube eben: 254 II, Interest as damages ........... cc cece cece eevee eeveue 258 HID. Special idéMages: 5.020 c2y wows iota nha we be Guag eae new eaeaon 261 IV. Consequential damages ......... 0... ccc cece eee e eve rece eens 263 TABLE OF CONTENTS. 1X Page Ant. V. Prospective damages ............ccccccceecccceces ae esata 266 VI. Speculative damages ............ 00. ccccecececceeeeueeuees 269 VIL. Nominal dawidges: 1 scnsay day cx adeare ialages se vex ee 4 seeeass 270 VIII. Compensatory damages ..........0.c ccc eeeeeeseeeecueeees 272 IX. Exemplary damages ......... 0... cece cee cee eee eee e eee e ee 273 X. Mitigation of damages ........... 0... e cece eee eee e eee eee 277 XI. Aggravation of damages ........ nist Pablntan Toaenndal ype 280 XII. Liquidated damages or penalty .......... 0... e eee ec eee eee 281 XIII. Double, treble, and increased damages ..................... 283 XIV. Damages against joint tort feasors ..............00.ee eens 285 XV. New trial for insufficient or excessive damages ............. 286 PART IL Injuries to the Person, CHAPTER VIUI. ABDUCTION OF CHILDREN. ART. I. Elements of the wrong ........ 0... ec e eee eee cee eet eee 287 Subd. 1. Early rule — Predicated on loss of services....... 287 2. Ancient doctrine criticised — Modern rule ....... 288 GT: Remedies: cua aiainau/adiel sora tied da gens ea dees og ier obalen ke mea aia ae 290 Subd. 1. The criminal action ...............0.00 0. ce eae 290 2: The civil action. eicicicc savas tia s wioieieece aians tiene wie 290 Sec. I. When the civil action lies ............ 290 2. When the civil action does not lie....... 292 ITI. Pleading, evidence, ete. ....... 0. cece ccc cece eect eens 294 TV DAMA PeS - xcois dee gadiee. pacha osdco chon ied auaneitia ave: Sand anal a edule a @ sees 296 CHAPTER IX. SEDUCTION. ART. I. Definitions and distinctions .......... 0... cece cece eee eee 298 Subd: I. Definitions: sie ascsin ec ewisu van oes eG eee deieak 298 2, Seduction distinguished from analogous wrongs... 299 3. Historical; theory of the action ................ 300 TL, Remedies. sdccscs ine dc dans ee pat seen nded eee awe ey aves ee 302 Subd. 1. The criminal action ............ ccc eee cree eee 302 2. Oivil, ACHON: oi Kecee ewes ses TIA oe RES ERE SS 303 x TABLE OF CONTENTS. Page. ArT. III. Elements of the wrong .............c cece eeeenee ence eens 304 Subd. 1. The seduction ....... 0. cee cee eeee eee e cece er enes 304 2. To088 OF SCTVICES) 5. cise eis ead aes Wee ea ee are Ssbe 308 3. Effect of age of Woman .......-. eee eee erences 311 TV... DehenseS: « s ecnactdor qt yd deb teats argene wt pean ao: Saacasa! ano sere bees a eae 312 Subd. 1. Connivance of plaintiff ................. cece eee 312 2. As to consent of woman ...........0-ee cece es 313 3.. Miscellaneous é.:02.44:¥ 2 smek se iee sg ete aus geen gs 314 Weise PACS) aise) saz aanuslevecasaigeels exGiakecetonte oi Gsenl gl « Aeteceleiepletele’s yeas a Guise d 314 Subd. 1. The woman seduced .......... 0.0: seuss eeeeeees 314 Qs Patents mst.cae nosst toaw.s erase wend Sele e 316 3. Those in loco parentis ....... ccc cee eee eee eee 317 Wig Blea gsc 3s steis sag cdcote ene ks GM QUE o wetieays. tee das 318 Subd. Jo ‘Complaint: co .18 sae sales é bagel eeuns seni nese ys 318 De MB WOR. séisseoes eae pssdlus nica tsaes d Bustinenes deca auaag S eeteus leans eng a 319 WIT. EVAiden@6: yin. sc niece vataie be ee ae Wankads Sea epee Ne eS owe adS 325 Subd. 1. Of the seduction ............c cece eee e cece eens 325 2. Of right to services ..... 0.0... cece eee cee 326 3. Of character of plaintiff, or his connivance....... 327 4. Of character and finzncial standing of defendant... 327 5. Of character of woman seduced ........... cr 328 6. Of offer of marriage by defendant ............... 329 Te MISCENANEOUS: 2s winieas oncow eos G64 Spa ard Beare aawE 331- VILL. Procedure and tial .acccceudeetien decane dae oaeee te gue ekeas 331 Subd. 1. Trial— Publie may be excluded ................ 331 2. Charge and nonsuit ............. cc cc eee eee 331 Bs \COSESS sg ceacins: sng aale ery mae e4S Sar Sain dncese d teswelale eablals 332 UK, Damages) waswe sve tade ara sid oaciack ) acaw cadets gee ey ans 332 Subd. 1. Compensatory ......... 0.0.00 cc cece eee ee ences 332 Pi PUnitive 5 wees ei taeda eis When the facts bearing on the existence of probable cause are not disputed, and admit of but one inference, the question of probable cause is for the court. But if the facts are disputed, or admit of opposing inferences, or if the facts and the law are so closely united and not easily susceptible of a separate decision, the question is for the jury. Scott v. Dennett Surpassing Coffee Co., 51 App. Div. 321, 98 St. Rep. 1016, 64 N. Y. Supp. 1016; Eric- son v. Edison El. Il. Co., 59 App. Div. 612, 68 N. Y. Supp. 1044. Where the evidence as to want of probable cause and malice is conflicting the questions are properly submitted to the jury. Rob- bins v. Robbins, 1383 N. Y. 598, 28 Abb. N. C. 256, 44 St. Rep. 684, affirming 39 St. Rep. 453, 15 N. Y. ‘Supp. 215. Where the question of probable cause depended wpon conflicting testimony, and where it was held a proper question for the jury, see Hodges v. Richards, 30 App. Div. 158, 85 St. Rep. 869, 51 N. Y. Supp. 869. For a case where the evidence was so conflicting as to make the question of probable cause and malice proper for the jury, see Hamilton v. Davey, 28 App. Div. 457, 85 St., Rep. 88, 51 N. Y. Supp. 88. ‘ On the question of probable cause the inquiry. is not limited to facts within the prosecutor’s knowledge, but information given him by others may be shown, and the question as to how far such information justifies the act of the defendant is a question for the jury, and is not a question of law. Owens v. New Rochelle Coal & Lumber Co., 88 App. Div. 53, 89 St. Rep. 913, 55 N. Y. Supp. 913. Where the facts are in dispute, or where, though undisputed, they would reasonably sustain different inferences as to the exist- ence of probable cause, that question, as well as the question of malice, should be left to the jury, and it is error for the court to decide it as matter of law. Collins v. Manning, 32 St. Rep. 998, 10 N. Y. Supp. 658. Where defendant had plaintiff arrested for having the body of his own child exhumed and extracted a bone for the purposes of evidence in a civil action,—Held, that the plaintiff did not violate MALICIOUS PROSECUTION. 499 Art. 3. Elements of the Wrong. the statute and that under the circumstances the question of prob- able cause and malice were properly left to the jury, and the ver- dict for the plaintiff would not be disturbed. Rhodes v. Brandt, 21 Hun, 1. For a case where the question of probable cause was held to be a question for the jury, see Sweet v. Smith, 42 App. Div. 503, 93 St. Rep. 404, 59 N. Y. Supp. 404; Costigan v. Metropolitan Infe Ins. Co., 39 App. Div. 644, 57 N. Y. Supp. 177. Where the plaintiff was arrested for assault and battery, and also on a charge of larceny,—Held, that the question as to whether he committed the assault was question for jury where the evidence is conflicting. Collins v. Manning, 1 St. Rep. 193. Where the facts are not disputed the question as to whether there was probable cause for the prosecution is one of law for the court. Shipman v. Learn, 92 Hun, 558, 36 N. Y. Supp. 969, 72 St. Rep. 73. For a case where, under the facts, the question of probable cause is held to be a question for the jury, see Hricson v. Edison El. Co., 31 Mise. Rep. 379, 98 St. Rep. 498, 64 N. Y. Supp. 498. SUBDIVISION 7. Former Prosecution Must Have Terminated in Plaintiff’s Favor. The rule that in bringing an action for malicious prosecution the plaintiff is bound to show termination of the criminal proceed- ing has for its foundation that it cannot be known that the prose- cution was unjust and unfounded except it is terminated. If the action for malicious prosecution were allowed to be maintained before the termination of the criminal proceeding the plaintiff might be found guilty of that proceeding and yet maintain the action for malicious prosecution on the ground that he was not guilty. Thus there might be two conflicting determinations as to the same transaction. It was also held that the criminal pro- ceeding is terminated, even though the plaintiff when discharged - is informed by the police justice that he is inclined to hold her to bail before he makes his final determination, though he finally discharges her upon being shown that she is friendless and unable to procure bail. Robbins v. Robbins, 183 N. Y. 598, 28 Abb. N. ©. 256, 44 St. Rep. 684, affirming 39 St. Rep. 453, 15 N. Y. Supp. 215. 500 MALICIOUS PROSECUTION. Art. 3. Elements of the Wrong. For the purpose of termination of the former prosecution an abandonment of the charge and a discontinuance of the prosecu- tion is equivalent to a discharge from the accusation. Fay v. O’Neill, 86 N. Y. 11, citing Clark’ v. Cleveland, 6 Hill, 344; Secor v. Babcock, 2 Johns. 203; Burhans v. Sanford, 19 Wend. 417. Under an answer which admits the termination of the former prosecution it cannot be maintained that the justice who tried the case was without jurisdiction, where no such fact is alleged in the answer. Suefke v. Siefke, 6 App. Div. 472, 39 N. Y. Supp. 601. For a case where the discharge of the plaintiff on habeas corpus was held not to be termination of the former proceeding, see Vorce v. Oppenheim, 37 App. Div. 69, 89 St. Rep. 596, 55 N. Y. Supp. 596. Where the prosecution complained of was the arrest of the plaintiff for wrongfully cutting timber upon defendant’s land, and where the case was adjourned to have an answer made, and on the adjourned day the complaint was dismissed on the complainant’s motion and the plaintiff discharged,—_Held, that the criminal pro- ceeding was ended so as to permit action for malicious prosecution. Hall v. Kehoe, 28 St. Rep. 357, 8 N. Y. Supp. 176. In sustaining a demurrer to a complaint the court, in Thomason v. De Mott, 18 How. Pr. 529, 9 Abb. Pr. 242, said: “It is es- sential that the complaint should show that the alleged malicious prosecution has been terminated by the plaintiff’s acquittal, or in such a way that no further proceedings upon it can be had against him. Even a nolle prosequi entered with leave of the court would be a nullity, and the court cannot enter a nolle prosequi on its own motion.” Therefore, it was held that an indorsement on an indictment by an assistant district attorney, stating: that the case was frivolous and should never be tried, is not an end of the prosecution which will warrant an action for malicious prosecu- tion, because there is no obstacle to bringing the plaintiff to trial upon the indictment. The action cannot be brought until the proceeding complained of has been legally terminated in favor of the accused, and the fact that the plaintiff has been discharged from imprisonment on habeas corpus, and admitted to bail to await the action of the grand jury of a charge of larceny, and where the grand jury has not MALICIOUS PROSECUTION. 501 Art. 3. Elements of the Wrong. considered the case, the former proceeding is not terminated. In such case it is not competent to prove that no further proceed- ings were taken in the criminal case, after the commencement of the civil action, because the commencement of the civil action may have been itself instrumental in staying the criminal proceedings. Nor in a civil action and before termination of criminal pro- ceedings will the court examine into the merits of the latter to ascertain the lack of foundation of the criminal charge. Hinds yv. Parker, 11 App. Div. 329, 76 St. Rep. 955, 42 N. Y. Supp. 955, citing Swartout v. Dickelman, 12 Hun, 358. An action will not lie for a malicious arrest upon a criminal charge before a magistrate, unless the proceeding is so far ended that nothing can be done by the prosecutor without commencing anew. But to maintain the action it is not necessary to show an acquittal, such as would bar second prosecution for the same offense, nor is it essential that any judicial decision upon the merits should have been made. Clark v. Cleveland, 6 Hill, 344. The entry of a nolle prosequt with assent of defendant is a sufficient termination of prosecution to support the action. Moul- ton v. Beecher, 8 Hun, 100. Where the proof offered of the termination of a prosecution was that a recognizance had been taken from the plaintiff, and the indorsement made thereon upon the evidence taken by the police magistrate was as follows: “ Bail discharged April 20, 1843.” Evidence that there was an entry to. the same effect in the book of minutes kept by the clerk of the criminal court was held sufficient proof of the termination of the proceeding. Bacon v. Townsend, 6 Barb. 428. In Gallagher v. Stoddard, 47 Hun, 101, where the plaintiff had been arrested on a criminal complaint, and where the plain- tiff had paid a sum of money to the officer making the arrest and a receipt therefor was given by the plaintiff in settlement of all his claims, and a similar receipt by the officer, who signed the name of the justice issuing the warrant. Held, that the proceed- ings were not terminated so as to warrant an action for malicious prosecution; that the contention that the proceedings were termi- nated by the compromise under sections 663, 664, Code of Crimi- nal Procedure, could not be sustained. The court said: “If it were to be admitted that the prosecution was terminated by the compromise, as provided for by the Code of Criminal Procedure, 502 MALICIOUS PROSECUTION. Art. 3. Elements of the Wrong. still we would not think such a compromise would constitute a termination of the prosecution that would justify an action for malicious prosecution.” Citing Wilkinson v. Howell, Moo. & M. 495; McCormick v. Sisson, 7 Cow. 715; Sartwell v. Parker, 141 Mass. 405. In McCormick v. Sisson, 7 Cow. 715, where the defendant had obtained a warrant against the plaintiff for theft, and where plain- tiff was discharged before the justice because the parties had set- tled between them. Held, not to be such an acquittal as to war- rant action for malicious prosecution. Where the plaintiff was discharged by a magistrate because he was satisfied that there was no cause for commitment, the ac- quittal was held to be lawful, and to lay a sufficient ground for an ‘action of malicious prosecution. Secor v. Babcock, 2 Johns. 203. Where the defendant had caused the arrest of her daughter-in- law on charge of disorderly conduct, and where she was detained in jail over night and released next morning after examination, and where on the trial for malicious prosecution the magistrate’s memory was at fault and was indefinite as to the grounds of dis- missal, and where he thought he had discharged her after promis- ing not to molest the defendant,—Z/Held to be the duty of the court to submit to the jury the question of fact as to whether the charge was dismissed and the plaintiff acquitted, and also as to whether there was absence of probable cause. Robbins v. Robbins, 15 N. Y. Supp. 215. Though the plaintiff is bound to prove that the proceedings instituted against him have been terminated by failure of the jury to indict or otherwise, yet proof of such fact is not conclusive evidence of the plaintiff’s innocence, and the defendant may prove that he was in fact guilty of the crime charged. Barber v. Gould, 20 Hun, 446. Where plaintiff had been committed to await the action of the grand jury, and before the jury met was discharged on habeas ecrpus,—Held, that such discharge was not a determination of the plaintiff’s innocence, or a termination of the prosecution so as to uphold an action for malicious prosecution. On the second appeal of the case of Smith v. Smith, 26 Hun, 578, an action founded upon malicious filing of a lis pendens,— Held, that the complaint should be dismissed upon the ground that the complaint did not show that the former prosecution had been MALICIOUS PROSECUTION. 503 Art. 3. Elements of the Wrong. ended. Brady, J., dissented. This complaint was formerly sus- tained on demurrer. See Smith v. Smith, 20 Hun, 555. Where two actions in a justice’s court failed because of the plaintiffs failure to appear, and a new action was commenced upon the same judgment, which was still pending, the litigation is not terminated. Want of probable cause cannot be inferred solely from the discontinuance of a former suit. Palmer v. Avery, 41 Barb. 290, affirmed 41 N. Y. 619. In Nebenzahl v. Townsend, 61 How. Pr. 353, 12 Week. Dig. 511, it was held that where an action of malicious prosecution was brought when there was an appeal pending in the action in which plaintiff had been arrested, that such action was not termi- nated. See also, to the same éffect, Peck v. Hotchkins, 52 How. Pr. 226, where it was held that, although complaint in an attachment suit had been dismissed, yet the prosecution was not terminated if an appeal from the judgment of dismissal was taken and was still undetermined. In Sailesbury v. Creswell, 14 Hun, 460, a nonsuit was sustained upon the ground that the plaintiff was not in a situation to main- tain the action, because the litigation before a justice, wherein he was arrested, and the execution against his person was not terminated in his favor, and also upon the ground that the re- covery of judgment before the justice was unreversed and in full force and effect, and that was evidence of probable cause. Dis- tinguishing Burt v. Place, 4 Wend. 591. If an order of arrest has been vacated upon the merits, an ac- tion of malicious prosecution lies in favor of the person arrested, and he is not obliged to wait until the action in which he has been arrested is terminated in his favor. It seems, however, that the rule is otherwise where, there has been an appesl from the order vacating the arrest, so long as the appeal is pending. Ingram v. Loot, 51 Hun, 238, 3 N. Y. Supp. 858. Where the plaintiff had been arrested under the Stillwell Act and the warrant of arrest was dismissed on the affidavit, showing previous arrest, and an action for malicious prosecution was brought pending the defendant’s appeal from the order dismissing the warrant, it was held that the prosecution was terminated within the meaning of the rule which requires it to be at an end before an action for malicious prosecution can be instituted. “When a party has final judgment in his favor upon trial, the 504 MALICIOUS PROSECUTION. Art. 3. Elements of the Wrong. prosecution is so far terminated that he may sue for malicious prosecution. If an appeal be taken from the judgment, that may furnish reason for staying the trial of the action for malicious prosecution until decision of the appeal. If the judgment should be affirmed, then it could not be held that the action was prema- turely begun. If it should be reversed the action then would be pending and that action would furnish a defense. The party eommencing the action, while the appeal is pending, simply takes the risk of an adverse decision upon the appeal, and thus suffer defeat in the action. Marks v. Townsend, 97 N. Y. 594. ’ Where the action is for abuse of legal process rather than for malicious prosecution, it is not necessary to allege or prove termi- nation of the prosecution. Bebinger v. Sweet, 1 Abb. N. C. 263. (See Art. XI.) One of the exceptions to the rule that the former prosecution must be terminated is where the prosecution complained, of is malicious abuse of process. Thus, where the defendant has made use of a warrant of arrest for the collection of a common debt, and has extorted property from the plaintiff thereby, the latter may sue for the loss while the action of debt is pending. See Graneer v. Hill, 4 Bing. N. C. 212, and also cases cited. Speaking of the necessity of showing a termination of the former prosecution, the court in Bump v. Betts, 19 Wend. 421, said: “The reason for this proof is advanced that otherwise he (plaintiff) might recover in this action and still be convicted or have judgment against him on the former suit.” And the court further says: “ That when the reason of the rule fails, the rule is not applicable,” and thus where a former prosecution was pro- ceeding by attachment against the plaintiff as having fled the county to defraud creditors, it was held not necessary to prove termination of the former suit as such proof is only required where the plaintiff had an opportunity to make a defense in the former action. Judgment of criminal conviction is conclusive only between the parties; that is to say, between the plaintiff and defendant. There is no privity as between the defendant and strangers to the record. Where a judgment of conviction on a plea of guilty was obtained by fraud, duress, and conspiracy, the conviction is no bar to an action of malicious prosecution. Johnson v. Girdwood, 7 Misc. Rep. 652, 58 St. Rep. 338, 28 N. Y. Supp. 151. MALICIOUS PROSECUTION. 505 Art. 3. Elements of the Wrong. SUBDIVISION 8. Damage to Plaintiff. Some text-book writers have included proof of damage as one of the elements in an action for malicious prosecution. Bigelow on Torts, 90. But this element seems in general to have been disregarded by the courts, probably because in a majority of the cases the damage is presumed, as, for example, the injury to repu- tation, arising out of an arrest, the humiliation, ete. In regard to the requirement that damage be caused it should be noted that such damage need not be necessarily pecuniary. “ It may be either damage to a man’s fame, as if the matter he is accused of be scandalous, or where he has been put to any danger of loss of life or limb or liberty, or damage to his property, as where he is obliged to spend money in necessary charges to acquit himself of the crime’of which he is accused.”” Mayne on Damages, 345. The elements of damage in malicious prosecution are thus stated by the annotator in Burlingame v. Burlingame, 8 Cow., at p. 145, note: “The damage * * * must be either to the person by imprisonment, to the reputation by scandal, or to the property by expense.” In Frierson v. Hewitt, 2 Hill (S. C.), 499, it was held that. where the defendant procured the defendant to be indicted for killing the former’s cattle, the plaintiff must prove special damage, for the offense, though charged as a crime, was only a trespass. So, too, where the defendant falsely prefers against the plaintiff a charge of assault and battery, without cause and with malice, ete. Byrne v. Moore, 5 Taunt. 187. “Tn an action for malicious prosecution the plaintiff is entitled to recover not only for the unlawful arrest and imprisonment and the expenses of his defense, but also for the injury to his fame and reputation, occasioned by the false accusation. ‘The latter, indeed, is in many cases the gravamen of the action. An accusation of crime, made under the forms of law, or upon the pretense of bringing a guilty man to justice, is made in the most imposing and impressive manner, and may inflict a deeper injury upon the reputation of the party accused than the same words uttered under any other circumstances. The most appropriate remedy for the calumny in such cases is by an action for malicious prosecution.” 506 MALICIOUS PROSECUTION. Art. 4. When Action Can be Maintained. Held, as a consequence, that when there has been a recovery in an action for malicious prosecution it is a bar to a subsequent action for slander for the same cause. Sheldon v. Carpenter, 4 N. Y. 580. ARTICLE IV. WHEN ACTION CAN BE MAINTAINED. mean Suspivision 1. Criminal prosecution and arrest .......... 506 2. Civil prosecution ............ 0c eee ee eee 508 SUBDIVISION 1. Criminal Prosecution and Arrest. The early English cases allowed an actio against the magis- trate for malicious conviction, in which case it was said that it was not sufficient to show that the plaintiff was innocent of the offense of which he was convicted, but he must also show, from what passed before the magistrate, that there was want of probable cause. Besides the want of probable cause malice must also be shown, either express, or apparent from the proceedings. See note to Burlingame v. Burlingame, 8 Cow., at p. 145, with cases cited. Where the defendant’s conductor caused the arrest of a pas- senger by a policeman without warrant, and where he was taken before a magistrate and discharged for lack of complaint,—Held, that there was no judicial proceeding which would warrant a sub- sequent action for malicious prosecution. The proper remedy was for false imprisonment. Barry v. Third Ave. Ry. Co., 51 App. Div. 385, 64 N. Y. Supp. 615, 98 St. Rep. 615. In England it has been held that an action for malicious prose- cution may lie even where the defendant was bound over to prose- cute. In Du Bois v. Keats, 11 A. & E. 329, the defendant in a civil action had falsely sworn that a document was‘signed by the plaintiff, and the judge, believing the plaintiff had committed per- jury in denying the same, committed him for trial and bound over the defendant to prosecute. Upon his acquittal the plaintiff brought an action for malicious prosecution. The court said: “Tn my opinion * * * 4 prosecution, though in the outset not malicious * * * may nevertheless become malicious in any of the steps through which it has to pass, if the prosecutor MALICIOUS PROSECUTION. 507 Art. 4. When Action Can be Maintained. having acquired positive knowledge of the innocence of the ac- cused perseveres malo animo in the prosecution with the intent of procuring per nefas a conviction of the accused.” In Wanser v. Wyckoff, 9 Hun, 178, defendant caused plaintiff's arrest for using defendant’s boat. Plaintiff had taken the boat several times and returned it. Defendant caused his arrest for grand larceny. Held, that the fact that the boat was regularly re- turned removes one of the essential elements of the crime, and rendered it at most but a mere trespass. Thus, there was an en- tire absence of probable cause, and the judgment was affirmed. For a case where the prosecution complained of was founded upon a charge that the plaintiff had opened a sealed letter, contrary, to the provisions of section 642 of Penal Code, see McCormack v. Perry, 47 Hun, 71, overruling Lawyer v. Loomis, 3 T. & C. 396. Where it is a question whether or not the defendant instigated the prosecution, it is a question of fact for the jury, and if there is any evidence upon this point, however slight, the court cannot dismiss the complaint. Upon this point the court said: ‘ This prosecution may be in the form of a civil or of a criminal pro- ceeding, and when conducted in the name of the offending party it would doubtless suffice to prove that he was the real party, the mover, and manager, and controller of the prosecution. If he were the mere clerk or agent of others or a mere witness in the transac- tion, he would not hold the character, nor be liable to the penal- ties of a malicious prosecutor.” Miller v. Milligan, 48 Barb. 30. For a case where the verdict was sustained where the defend- ant had caused the arrest of the plaintiff, his partner, in an effort to collect a sum of money, see Griffin v. Keeney, 27 App. Div. 492, 84 St. Rep. 721, 50 N. Y. Supp. 721. Where defendant had caused plaintiff’s arrest for stopping pay- ment on a check which he had sent to defendant in payment for certain goods, which defendant failed entirely to deliver,—Held, that there was entire absence of probable cause for plaintiff’s ar- rest. Bandell v. May, 39 St. Rep. 432, 15 N. Y. Supp. 273. See Neil v. Thorne, 17 Hun, 144, for a case involving the ar- rest of plaintiff, a school teacher, for collecting money upon an order signed by only one of the school trustees, where he had agreed to procure the signatures of other trustees before it was ended. 508 MALICIOUS PROSECUTION. Art. 4. When Action Can be Maintained. For a cause involving attempt to collect a debt by use-of crimi- nal process, see Reynolds v. Heywood, 77 Hun, 131, 59 St. Rep. 47, 28 N. Y. Supp. 467; Matters v. La Maida, 74 Hun, 432, 57 St. Rep. 178, 26 N. Y. Supp. 471. See further cases under ‘“‘ Elements of the Wrong.” SUBDIVISION 2. Civil Prosecution. In some jurisdictions it has been held that where one prosecutes an action in the name of a third person, without authority, he is liable to the person sued, although not acting maliciously, and although the third person had a good cause of action. Bond v. Chapin, 8 Metc. 431; Foster v. Dowd, 29 Me. 442. Where the prosecution complained of was an action for libel brought in a justice’s court, which was without jurisdiction, and where the same was discontinued upon the return day on account of lack of jurisdiction,—Held, that defendant was not liable for the malicious prosecution unless it was shown that the justice’s court was without jurisdiction, and that the burden was upon the plaintiff. Eldred v. Fawdrey, 16 St. Rep. 83. For a case where the verdict was sustained in an action where the prosecution complained of was arrest of the plaintiff in an action for trespass, see Ferguson v. Arnow, 50 St. Rep. 852, 21 N. Y. Supp. 308. For a case involving arrest in an’ action for trespass, where it was held that a nonsuit was proper on account of failure to show malice and want of probable cause, see Witham v. Thomas, 50 St. Rep. 884, 21 N. Y. Supp. 176. In Hodges v. Richard, 30 App. Div. 158, 85 St. Rep. 869, 51 N. Y. Supp. 869, a dismissal of the complaint was reversed in an action where the alleged malicious prosecution was the arrest of the plaintiff in a civil action for moneys received by plaintiff in a fiduciary capacity. In Brown v. McIntyre, 43 Barb. 344, the defendant had caused the arrest of the plaintiff in a suit in Canada upon an affidavit greatly overstating the amount due. The plaintiff was imprisoned about eighteen months. Held an action for malicious prosecu- tion would lie. The court cites 3 Phillips on Evidence, 261, as follows: “Where there have been mutual dealings between the plaintiff and defendant, and items are ascertained to be due on MALICIOUS PROSECUTION. 509 Art. 4. When Action Can be Maintained. each side of the account, an arrest for the amount of one side of the account without taking what is due on the other, is malicious and without probable cause.” Citing English authorities on this point. In Bradner v. Faulkner, 93 N. Y. 515, reversing 16 Week. Dig. 240, an action for malicious prosecution arose out of an attachment against the plaintiff under Laws of 1858, chap. 190, which gives boards of supervisors power to examine persons as witnesses, and for refusal to obey subpeena, to attach said person as for con- tempt. In Besson v. Southard, 10 N. Y. 236, the malicious prose- cution consisted in procuring the plaintiff to be held in an action of trespass upon the case. It was held that the action might be founded on the prosecution of a civil suit and attachment of the plaintiff’s property therein. Willard v. Holmes, Booth & Hayden, 2 Misc. Rep. 303, 51 St. Rep. 569, 21 N. Y. Supp. 998, reversed 142 N. Y. 492. In Smith v. Smith, 20 Hun, 555, affirming 56 How. Pr. 316, a complaint for the malicious filing of a lis pendens was upheld on demurrer. The court said: “It would be extraordinary in- deed if the plaintiff, under such circumstances, had no remedy and that a proceeding created for a wise purpose and for good ends could be used by a suitor with malice aforethought, with- out incurring any personal responsibility.” But a demurrer was subsequently sustained on the ground that termination of former prosccution was not alleged. 26 Hun, 573. The decision on the latter appeal was distinguished in Ingram v. Root, 51 Hun, 238 (241), 3 N. Y. Supp. 858, where it was held that after an order of arrest has been vacated upon the merits, the party against whom the action is brought is not obliged to wait until such action has been decided in his favor before instituting an action for malicious prosecution based upon such arrest. It appears the rule would be otherwise in case the order vacating the order of arrest is appealed from, and that the burden of showing any appeal was taken rests upon the plaintiff, and his cause of action is not complete unless the complaint contains an averment thereof. See Marks v. Tounsend, 97 N. Y. 394. Where the prosecution complained of was an action for replevin for steamship tickets, brought by a corporation against its agent, — Held,that the fact that the corporation by mistake demanded the 510 MALICIOUS PROSECUTION. Art. 5. Defenses. return of too many tickets on replevin did not indicate malice, or tend to show want of probable cause. Sheahan v. National Steam- ship Co., 66 Hun, 48, 49 St. Rep. 484, 20 N. Y. Supp. 740. The malicious institution of bankruptey proceedings is mali- cious prosecution. Chapman v. Pickersgill, 2 Wils. 145; Farley v. Danks, 4 El. & Bl. 498. In England it has been held that an action will lie against a person who falsely, maliciously, and without probable cause brings a proceeding to wind up the affairs of a corporation, whereby its credit is injured. Quartz Hill Gold Mining Co. v. Eyre, 11 Q. B. Div. 674. An action on the case will lie for maliciously obtaining or executing a search warrant. Cooper v. Booth, 1 T. R. 535. In Johnston v. Comstock, 14 Hun, 238, a recovery was sus- tained against defendant for the malicious issuing of a search warrant, and the search of plaintifi’s premises thereunder. The action, however, was in the form of trespass for alleged illegal entry upon premises of the plaintiff. Recent English decisions have allowed an action founded upon maintenance, which is a criminal offense, the action being al- lowed only where the defendant had aided in the prosecution of some suit in which he had no interest or motive other than stir- ring up and keeping alive strife. If based on charity, whether reasonable or not, the action will not lie. Bigelow on Torts, 114, citing Bradlaugh v. Newdegate, 11 Q. B. Div. 1; Harris v. Brisco, 17 Q. B. Div. 504; Met. Bank v. Pooley, 10 App. Cas. 210. For American cases, see Hovey v. Hobson, 51 Me. 62; Duke v. Harper, 2 Mo. App. 4; Goodyear Dental Vulcanite Co. v. White, 2 N. J. L. 150; Fisher v. Kamala Naicher, 8 Indian App. 170, 8 W. R. 655. ARTICLE V. DEFENSES. It has not seemed advisable to treat defenses fully as a sepa- rate heading; and reference is made to article III, “ Elements of the Wrong,” the absence of any of which elements is a defense. What in other actions would be called justification, in this action takes the name “ Probable Cause,” the existence of which is a defense. There is, however, a defense sometimes set out as bearing on malice, and which is here treated. Advice of counsel is only a MALICIOUS PROSECUTION. 511 Art. 5. Defenses. defense in so far as it may tend to prove probable cause and dis- prove malice. And to have that effect it should appear that the advice of counsel was obtained after a full, fair, and honest state- ment of all the facts concerning the guilt of the person suspected. Willard v. Holmes, Booth & Hayden, 2 Misc. Rep. 308, 51 St. Rep. 569, 21 N. Y. Supp. 998. It is said that the question of advice of counsel as a defense is a “ subject upon which there has been much of inadvertence, it being often said that advice of counsel that the plaintiff was guilty of the offense, given upon all the facts, is a complete de- fense; but that this is not the rule is no longer open to discussion with us.” Citing Hazzard v. Flury, 120 N. Y. 223; Brown v. McBride, 24. Mise. Rep. 286, 52 N. Y. Supp. 620. Advice of counsel, while proper upon the question of malice, does not go to the question of probable cause, for while probable cause may be founded upon misinformation as to facts, it can- not be founded upon mistake of law. Hazzard v. Flury, 120 N. Y. 223, 30 St. Rep. 906. It is not error for a court to refuse to charge that “ advice of counsel given on a full and fair statement of his case, and acted upon in good faith, is a good defense,” because the request limits the advice to a statement of the defendant’s case instead of a statements of the facts, circumstances, knowledge, and information possessed by the defendant. Hall v. Kehoe, 28 St. Rep. 357, 8 N. Y. Supp. 176. Bona fide acts of a party done on advice given by counsel after full and fair statement of the facts is evidence of probable cause, however erroneously made. Richardson v. Virtue, 2 Hun, 211,47. & ©. 441. Advice of counsel bears upon the question of probable cause only when there is a question for the jury as to probable cause. “Where the undisputed facts make the question of probable cause for the court, advice of counsel is of no weight on that head.” Brown v. McBride, 24 Misc. Rep. 286, 52 N. Y. Supp. 620. The defendant may show advice of counsel, as it bears upon the good faith of the defendant. Turner v. Dinnegar, 20 Hun, 465. Advice of counsel cannot affect the question of damages unless it is shown that the advice was based upon the facts truly stated to the counsel. Howe v. Oldham, 69 Hun, 57, 53 St. Rep. 327, 23 N. Y. Supp. 703. 512 MALICIOUS PROSECUTION. Art. 6. Parties. Advice of counsel standing alone does not free a client from the imputation of malice. To have that effect the question must be one of law, or some legal principle must be involved, in order to a proper decision of which the law applicable to the question must be ascertained. If the client in such a case acts in good faith upon the advice of counsel, there cannot be a charge of malice. Laird v. Taylor, 66 Barb. 142. Where a party lays his case fully and fairly before counsel and acts in good faith on the opinion given by such counsel, however erroneous the opinion may be, it is sufficient evidence of probable cause and a good defense in an action for malicious prosecution. But in such a case it is a proper question for the jury whether the party acted bona fide on the opinion given him, believing that the plaintiff was guilty of the crime of which he was accused. So held in Hall v. Suydam, 6 Barb. 83. See cases cited supra. In England the defendant who lays the true facts of an action before counsel and acts bona fide upon the opinion of the counsel, though the same be erroneous, is not liable to an action for mali- cious prosecution. Ravenda v. McIntyre, 2 B. & C. 693. But if he does not act bona fide on the opinion or believe that he has cause for prosecution, or neglects to state all the facts, or selects an ignorant counsei to shield his malice, he may be liable. Ravenda v. McIntyre, 2 B. & C. 6938; Hawlett v. Cruchley, 5 Taunt. 277. It is error to reject evidence offered by defendant to show that he stated facts within his knowledge touching the charges made against the plaintiff to an attorney and also to a justice of the peace, asking their advice, which he received. Turner v. Din- negar, 20 Hun, 465, citing 2 Greenl. Ev. 459; Richardson v. Vir- tue, 2 Hun, 208; Laird v. Taylor, 66 Barb. 139. ARTICLE VI. PARTIES. PAGE. Supprviston 1. Plaintiffs ......... 0... ccc cece cece cees 512 9. Defendants ........... ccc ccc ceesccees 513 SUBDIVISION 1. Plaintiffs. Where parties, without probable cause and with the willful and malicious intent of injuring a surviving partner and a corporation MALICIOUS PROSECUTION. 513 Art. 6. Parties. tu which such partner had conveyed certain assets, institute in- voluntary bankruptcy proceedings against such surviving partner, two distinct causes of action arise, one in favor of the surviving partner for the damages sustained by him personally, and one in favor of the corporation for the damages sustained by it. Neither the corporation nor the surviving partner has any legal interest in the cause of action arising in favor of the other, and they cannot join in a complaint to recover damages sustained by both, because of the bankruptcy proceedings. Lawrence v. McKelvey, 80 App. Div. 514, 81 N. Y. Supp. 129. SUBDIVISION 2. Defendants. The instigator of the malicious prosecution is liable, although the formal complaint upon which the plaintiff was arrested was made by another person. So held where a domestic servant was arrested on the complaint of a police officer upon the instigation of her master. Dann v. Wormser, 38 App. Div. 460, 90 St. Rep. 474, 56 N. Y. Supp. 474. Where the complaint was made by defendant’s agent, but the defendant retained counsel who appeared against plaintiff and instructed him to procure a warrant, and he attended the trial, —Held, that he was the real prosecutor. Gierhon v. Ludlow, 25 St. Rep. 352, 6 N. Y. Supp. 111. Where the attorney of an insurance company verified the in- formation stating that the plaintiff had appropriated, etc., moneys of the company and procured a warrant for his arrest, it was held that he had made himself a party to the prosecution and was not in a position to claim the protection of the professional privilege, and that it was error to dismiss the complaint against him. Whit- ney v. N. Y. Casualty Ins. Assn., 27 App. Div. 321, 50 N. Y. Supp. 227, 84 St. Rep. 227. The liability of a partner for a malicious prosecution by his fellow partner is considered in Farrell v. Friedlander, 63 Hun, 254, 43 St. Rep. 445, 18 N. Y. Supp. 215. The court comments upon the statement in Abbott’s Trial Evidence, p. 217, that “af the act itself was one within the scope of the business and done as such, then it is not material that the other partners were ignorant and innocent, nor that it was willful; otherwise, if the act was 33 514 MALICIOUS PROSECUTION. Art. 6. Parties. wholly foreign to the business.” The court says: “I can find, however, no case which goes to the extent of holding that the mali- cious prosecution of offenders has been admitted to be within the power constructively delegated to one partner as the agent of an- other.” Further the court said: ‘“ I do not think it can be claimed that a prosecution undertaken by one partner, without consultation with and approval by his copartner, can hold the latter liable, because it cannot be assumed that a malicious prosecution by one, even in regard to supposed thefts of partnership property, is within the scope of his partnership authority, so as to make him, in re- spect thereto, the agent for his copartners.” Judgment was, there- fore, reversed as to one of the defendants on the ground that there was no evidence to show that he was in any way consulted, took part in, knew of or approved of the prosecution. The court fur- ther says, in reversing judgment as to one: “It is doubtful if it can be permitted to stand as against the other.” Citing Lewis v. Kahn, 5 N. Y. Supp. 661. Tt is now well settled that a private corporation is liable civiliter for malicious prosecution. Willard v. Holmes, Booth & Hayden, 2 Mise. Rep. 304, 51 St. Rep. 569, 21 N. Y. Supp. 998, and cases cited. An action for malicious prosecution lies against a corporation as well as an individual. The court said: “The motive for the corporate suit is imputed to the corporation, and not to the. in- dividual directors.” Welard v. Holmes et al., 142 N. Y. 496, 60 St. Rep. 89. Malicious prosecution lies against a corporation, and evidence that the general manager and general counsel of the corporation laid information charging plaintiff with a crime is sufficient to warrant a finding that the corporation was responsible for the prosecution. Scott v. Dennett, etc., Co., 51 App. Div. 321, 98 St. Rep. 1016, 64 N. Y. Supp. 1016. The malice of the officers and employees of the corporation ac- companying the performance of the acts within, or incidental to the discharge of their duties, is imputable to the corporation, un- less those acts were intended as a mere cover for the accomplish- ment of some independent and wrongful purpose. Willard v. Holmes et al., 2 Mise. Rep. 303, 21 N. Y. Supp. 998. A corporation is not chargeable with the malice of its clerks in testifying on a criminal process, such testimony not being MALICIOUS PROSECUTION. 515 Art. 7. Pleading. within the scope of their employment. Kutner v. Fargo, 20 Mise. Rep. 207, 79 St. Rep. 753, 45 N. Y. Supp. 753. For a case where the malice of the manager of an insurance company in causing the arrest of a collecting agent was held to be imputable to the corporation, because within the scope of his authority, see Manasha v. Royal Benefit Society, 21 Misc. Rep. 474, 81 St. Rep. 628, 47 N. Y. Supp. 628. In Purcell v. Long Island City, 84 Hun, 439, 65 St. Rep. 537, 32 N. Y. Supp. 302, it was held that where the prosecution com- plained of was that of a school trustee of a municipality, who, as such, charged the plaintiff with stealing certain property belonging to the municipality, and where the corporation counsel appeared against the plaintiff, and where the proceedings on trial were pub- lished in the newspapers of the city, and where the charge was finally dismissed, that such evidence was not sufficient to connect the municipality with the prosecution of the criminal charge, and that a nonsuit was correct. In reaching this decision the court said: “It is not necessary upon this appeal to decide whether an action for malicious prosecution can be maintained against a municipal corporation, because the facts failed to connect the de- fendant with the prosecution of this case.” This has long been an open question in England and the action denied on the ground that malice is necessary, and a corporation, having no mind, could not be malicious. Stevens v. Midland Ry., 10 Exch. 352; Abrath v. North-Hastern Ry., 11 App. Cas. 247. ARTICLE VII. PLEADING. aeees Supprviston 1. Complaint ........ 00. ccc cece eee eee 515 2; ANSWEF acid Pace ee eae eRe eas we alee wes 518 3. Bill of particulars ...... 0... cee eee eee ee 519 SUBDIVISION 1. Complaint. In Stokes v. Behrencs, 23 Misc. Rep. 442, 86 St. Rep. 251, 52 N. Y. Supp. 251, it was held that where the complaint states all the facts supporting both false imprisonment and malicious prose- cution, the plaintiff should be compelled to elect between the two; 516 MALICIOUS PROSECUTION. Art. 7. Pleading. that they were inconsistent, and that the election may be compelled on the trial or by motion before answer. In Nebenzahl v. Townsend, 61 How. Pr. 353, 12 Week. Dig. 511, it was held that actions for malicious prosecution and false imprisonment cannot be joined. That they are inconsistent, and the plaintiff must elect between them. Action for false imprisonment and malicious prosecution may be united in the one complaint, and plaintiff cannot be compelled to elect between them. Thorpe v. Carvalho, 14 Mise. Rep. 554, 36 N. Y. Supp. 1, 70 St. Rep. 760. In Warren v. Dennett, 17 Misc. Rep. 86, 39 N. Y. Supp. 830, it was held that causes of action for false imprisonment and ma- licious prosecution are consistent with each other and may be pre- sented in the same complaint. Malicious prosecution and false imprisonment are both actions for personal injuries; are consistent with each other, and one is not destructive of the other, and it has been good practice to unite them in one complaint. If objection to the union of these causes of action in the complaint is not taken by answer or demurrer it is in any event waived. Marks v. Townsend, 97 N. Y. 594. A complaint alleging that the defendant led plaintiff into mak- ing a hard and unconscionable lease, and after the plaintiff had sown crops had turned him off and had procured his arrest upon a malicious charge of embezzlement, and took possession of his household goods, etc., and that all these acts were in pursuance of defendant’s plan to defraud plaintiff, states but one cause of action. Bebinger v. Sweet, 1 Abb. N. C. 263. It was held further in this case that the action was an action for the abuse of process and was not an action for malicious prosecu- tion, breach of contract, conversion, etc. That these elements were mere elements of damage, and merely evidence of the fraudulent plan and design of the defendant. Therefore, that as the action was not for malicious prosecution it was not necessary to allege the termination of the former prosecution, nor to prove it. That such an action may be maintained without it. Citing 2 Greenl. Ey. 452; Grainger v. Hill, 4 Bing. N. C. 212. The reporter’s note makes reference to Heywood v. Collinge, 9 Ad. & El. 268; Tomlinson v. Warner, 9 Ohio, 103; Stancliff v. Palmeter, 18 Ind. 821; Dauchy v. Salisbury, 29 Conn. 124. MALICIOUS PROSECUTION. 517 Art. 7. Pleading. Where the plaintiff alleged the publication in a newspaper of an article on his arrest at the charge of defendant, setting out the newspaper article in full,— Held, that the article should be stricken out as irrelevant. So far as the matter was libelous it could not be united in a cause of action for malicious prosecution, and if inserted to show publicity, it was evidence and should not be pleaded. Haughie v. New York & New Jersey Telephone Co., 34 Misc. Rep. 634, 70 N. Y. Supp. 584, 104 St. Rep. 584. Where the complaint contains more than one cause of action it must be divided into distinct counts. Failure to do this sub- jects every allegation which is not essential to a single cause of action to be stricken out as redundant. Benedict v. Seymour, 6 How. Pr. 298 (Code of Procedure). The complaint must allege that the prosecution was without probable cause. Such defect is not waived by failure of the de- fendant to demur, because such complaint does not state facts sufficient to constitute a cause of action. Neither is the presump- tion of malice an allegation of the want of probable cause. Pal- mer v. Palmer, 8 App. Div. 331, 40 N. Y. Supp. 829. The complaint must allege want of probable cause and malice, and a mere allegation that the defendant maliciously charged plaintiff with a crime is not sufficient. Nor is an allegation that the charge was false and that the plaintiff was acquitted. Cousins v. Swords, 14 App. Div. 338, 77 St. Rep. 907, 43 N. Y. Supp. 907. Where the complaint alleged merely an action for malicious prosecution, and at the end of the trial the plaintiff moved for an amendment so as to authorize a recovery for false imprisonment as well,— Held, that the allowance of such an amendment was er- ror. Cumber v. Schoenfeld, 34 St. Rep. 770, 12 N. Y. Supp. 282, 16 Daly, 454. Where the plaintiff relies upon the fact that the order upon which he was arrested has been vacated upon its merits, and that there has been no appeal from the order vacating, the burden is upon him to show that there is no such appeal, and his cause of action is not complete unless his complaint contains an allegation thereof. Ingram v. Root, 51 Hun, 238, 3 N. Y. Supp. 858. An allegation of the complaint that the plaintiff was acquitted by the magistrate is equivalent to an allegation that the magis- 518 MALICIOUS PROSECUTION. Art. 7. Pleading. trate discharged him. School v. Schnebel, 29 St. Rep. 676, 8 X. &. Supp. 854. It seems that the complaint may be amended on trial so as to add an allegation that the prosecution was ended. Ames y. Stearns, 37 How. Pr. 289, 55 Barb. 194. In malicious prosecution for obtaining an order of arrest against the plaintiff in another action, the complaint is defective where it fails to state that the order of arrest has been vacated, or judg- ment rendered for the defendant, unless it appears that the order was a nullity ab initio. Searle v. McCracken, 16 How. Pr. 262. The allegation that the prosecution has been terminated in plaintiff’s favor by the entry of a nolle prosequi on motion of the district attorney and with leave of the court, etc., is a sufficient averment of the termination of the criminal charge in plaintiff's favor. The allegation that the prosecution has been terminated, and terminated in favor of the plaintiff is a necessary allegation. Moulton v. Beecher, 1 Abb. N. C. 193. A complaint is demurrable which does not allege that the prose- cution complained of has been legally and finally terminated. Thomason v. De Mott, 18 How. Pr. 529, 9 Abb. Pr. 242. The complaint must allege special damage, such as injury to business, or the same cannot be proved. Evins v. Metropolitan Ry. Co., 47 App. Div. 511, 62 N. Y. Supp. 495. Where a complaint fails to allege want of probable cause, and the evidence of the plaintiff on that point is not satisfactory, the court should not allow an amendment of the complaint to conform the pleading to proof, nor incorporate into it an essential allega- tion of want of probable cause. Palmer v. Palmer, 8 App. Div. 331, 40 N. Y. Supp. 829. SUBDIVISION 2. Answer. Where the answer set up a counterclaim, stating a cause of action for deceit on part of plaintiff, in that he induced the de fendant to sell goods on credit by fraudulent representations, ‘which was alleged to have been one of the causes of action for which the prosecution of the plaintiff was instituted,— Held, that a counterclaim was bad upon demurrer; that it did not arise out of the same transaction and was not connected with the subject- matter of the action. The plaintiff’s action was in tort for per- MALICIOUS PROSECUTION. 519 Art. 7. Pleading. sonal injury, and the defendant’s counterclaim arose out of con- tract. Rothschild v. Whitman, 57 Hun, 135, 32 St. Rep. 560, 19 Civ. Proc. 58, 10 N. Y. Supp. 427, affirmed 132 N. Y. 472. Where the answer admits the allegations of the complaint that the former prosecution had been terminated favorably to the accused, the fact must be deemed established and the defendant cannot show that the police justice who tried the case was with- out jurisdiction, where no such fact is alleged in the answer. Siefke v. Siefke, 6 App. Div. 472, 39 N. Y. Supp. 601. Where the prosecution complained of was one which charged the plaintiff with larceny in the disposition of notes of a corporation, of which he was the president, and where the answer alleged that the books of corporation showed large discrepancies and that the proceeds of certain corporate notes were not accounted for, and that other notes had been misappropriated by the plaintiff,— Held, that this allegation should not be stricken out as irrelevant. Dun- ton v. Hagerman, 18 App. Div. 146, 80 St. Rep. 758, 46 N. Y. Supp. 758.’ In Morris v. Carson, 7 Cow. 281, where the sole plea of the defendant was that the facts involved in the prosecution were true, it was held that by such answer he assumed to prove the truth upon his own side, and that the plaintiff could not on the trial, in the first instance, show want of probable cause. This decision was under the common-law pleading. For a discussion as to the proper form of an answer containing several defenses, see Benedict v. Seymour, 6 How. Pr. 298. SUBDIVISION 3. Bill of Particulars. Where the complaint alleged that the former prosecution, under which he had been arrested, was extensively published in the newspapers, and in consequence many persons had refused to do business with him, believing him to have been guilty, it is held that the defendant is entitled to a bill of particulars as to the names of the newspapers and the persons who had refused to do business with him. Dietz v. Leber, 33 App. Div. 563, 87 St. Rep. 977, 53 N. Y. Supp. 977. 520 MALICIOUS PROSECUTION. Art. 7. Pleading. FORMS. COMPLAINTS. Malicious Civil Action -— with Arrest. SUPREME COURT — New York Country. ) ABRAHAM ROTHSCHILD, Plaintiff, agst. ~ Complaint, 132 N. Y. 472. BRYCE GRAY, WILLIAM MILLER, CLAR- ENCE WHITMAN et al., Defendants. J Plaintiff complains of the defendants and alleges: First. That on or about September 1, 1887, the plaintiff was en- gaged in business in the city of New York, as manager of the dry goods business of Mayer Rothschild, and was, on or about said date, conducting the said business as manager. Second. That on or about said date, the defendants not having any just or probable cause of action against the plaintiff, did then and there wrongfully, unlawfully, and maliciously begin an action against the plaintiff, and did cause to be issued out of the Supreme Court of the State of New York, in and for said county, a certain alleged order of arrest, in an action in which the defendants were plaintiffs, and placed the same in the hands of the sheriff of the city and county of New York for service, and did thereupon cause the plaintiff to be taken into custody by the said sheriff thereunder, and held to bail in the sum of $10,000, and that plaintiff was kept in custody under said pretended order of arrest by the said sheriff for one week, and was compelled to, and did, disburse large sums of money, aggregating one thousand of dollars, in and about said arrest, and to counsel, and that plaintiff, by reason of this said arrest, was compelled to give up said business, and was greatly injured in his good name and credit among merchants in the city of New York, and elsewhere, and among his friends and acquaintances, and suffered greatly in body and mind by reason of the disgrace attendant thereon. Third. That thereafter, and upon the motion of this plaintiff, the said alleged order of arrest was duly vacated by the said Supreme Court, and upon the ground that the same was illegal, unauthorized, and that the court had no jurisdiction to grant the same, and an order was duly entered thereon on or about the 29th day of Decem- ber, 1887, and defendant discharged thereunder, and that said pro- ceeding has been wholly and finally terminated in favor of the plain- tiff and against the said defendants by final order of the said court. Fourth. That by reason of the premises plaintiff suffered damage in the sum of $50,000. MALICIOUS PROSECUTION. 521 Art. 7. Pleading. WuHererore plaintiff demands judgment against the defendants for his damages aforesaid, in the sum of $50,000, with interest thereon from said date, besides the costs of this action. Horwitz & HErsHFIe.p, Plaintiff's Attorneys. Malicious Prosecution; Joined with False Imprisonment. SUPREME COURT — Kines County. FREDERICK B. GEORGE, Plaintiff, | agst. b Complaint, 25 App. Div. 125, DAVID JOHNSTON and EDWARD F. LIN- TON, Defendants. J The plaintiff complaining of the defendants alleges: First. That at the city of Brooklyn and on or about the 15th day of June, 1895, the defendants wrongfully and maliciously concerted, and conspired together, and wrongfully, unlawfully, and maliciously, and without reasonable or probable cause procured, and caused to be procured from a police magistrate of the said city of Brooklyn a warrant for the arrest and apprehension of plaintiff upon a false, unfounded, and malicious charge of grand larceny. That said charge was preferred against the plaintiff by the defendant, David John- son, who acted in his own behalf, and at the request and instigation of the codefendant, Edward F. Linton. Second. That on the 29th of June, 1895, the defendants wrong- fully, maliciously, and unlawfully, and without any reasonable or probable cause, procured the arrest and apprehension of plaintiff, and caused the plaintiff to be detained against his will, forcibly, wrongfully, and maliciously upon said false and malicious charge. Third. That by virtue of the said warrant plaintiff was arrested by an officer of the law at his place of business in the city of New York and carried before the police magistrate issuing the said war- rant, and confined in a room, crowded and filthy, and was then and there compelled to give bond in the sum of $5,000 to appear for examination therein. / Fourth. That defendants falsely and maliciously and without any reasonable or probable cause procured plaintiff to be arraigned be- fore said court and compelled him to plead to said felonious charges. Fifth. That plaintiff pleaded not guilty to the said false and mali- cious charge so preferred against him; that plaintiff was deprived of his liberty from the time of his arrest, viz., the 29th day of June, until the 3d day of July, 1895, the day set by the said magistrate 522 MALICIOUS PROSECUTION. Art. 7. Pleading. for his examination, when upon statements and allegations made by the district attorney representing Kings county, and also on behalf of the defendants, touching and concerning the said supposed offense, then and there, to wit, on the 3d day of July, 1896, the said police magistrate before whom plaintiff was drraigned, adjudged and de- termined that the said plaintiff was not guilty of the said supposed offense, and then and there caused the said plaintiff to be discharged and acquitted of the said supposed crime of grand larceny, and the said complaint and prosecution therein dismissed; -that the deéfend- ants and each of them have abandoned the said proceedings, and that the same was wholly ended and determined in plaintiff’s favor before the commencement of this action. Sixth. That by reason of the wrongful and malicious charges pre- ferred against the plaintiff as hereinbefore set forth, the plaintiff has been greatly injured in his credit and reputation, and brought into public scandal, infamy, and disgrace with his neighbors, to whom his innocence in the premises is unknown, and has suffered great anxiety and pain of body and mind, compelled and obliged to lay out and expend sums of money in procuring his discharge from the said imprisonment, and defending himself in the premises and the mani- festation of his innocence in that behalf and by reason, and by means of the said premises the plaintiff has suffered damages in the sum of $5,000. WuerEForE plaintiff demands judgment against the defendant for the sum of $5,000, together with the costs and disbursements of this action. ( Verified.) Daruineton & JENKINS, Attorneys for Plaintiff.- Answer, with Justification, Etc. SUPREME COURT — Kings Country. FREDERICK B. GEORGE, Plaintiff, DAVID JOHNSON and EDWARD F. LIN- agst. Answer, 25 App. Div. 125. TON, Defendants. J The defendants appearing in this action by Israel F. Fischer, their attorney, answer the complaint herein as follows: First. They aver that heretofore in the city of Brooklyn, and on or about the 15th day of June, 1895, the plaintiff did take and carry MALICIOUS PROSECUTION. 523 Art. 8. Evidence. away the wooden fence belonging to the defendant Johnson, and did store the same in the premises occupied by the plaintiff; that because of such larceny, the defendant Johnson did cause a warrant to be issued against this plaintiff, under which he was arrested and arraigned before a police magistrate of the city of Brooklyn. That upon such arraignment the defendant Johnson, upon the advice of the district attorney for Kings county, who appeared and prosecuted said case, amended his charge from one of grand larceny to one of petit larceny; that upon the said trial this plaintiff ad- mitted the taking of said fence, and the storing thereof in his cellar, but denied that he did so with criminal intent, and upon said state of facts the trial magistrate, after reprimanding the plaintiff, dis- missed said complaint. These defendants deny that they wrongfully and maliciously, or otherwise, conspired in this plaintiff’s arrest, or that the warrant so procured against him was obtained wrongfully, unlawfully, or mali- ciously, or without reasonable or probable cause, or that his arrest thereunder was procured wrongfully, unlawfully, or maliciously, or that the plaintiff has suffered damage in the sum of $5,000, or in any sum whatever. Second, Except as hereinbefore set forth, these defendants deny each and every allegation set forth in paragraphs first, second, third, fourth, and fifth of the complaint. WHEREFORE defendants demand that the complaint herein be dis- missed, with costs. IsrakEL F. FISCHER, Attorney for Defendants. ARTICLE VIII. EVIDENCE. PAGE. Svpprviston 1. Of probable cause ........... cece eee eee 523 DOP Mal CS saci Gare dena ee Eamets 528 pe GUE CHEATED Saino vaie a a arte meter en make «+ 530 BO Ogee 2 ac coenaroe see eseoeeSeees 531 5. Of results of former prosecution ......... 532 6. Burden of proof — Miscellaneous ........ 5382 SUBDIVISION 1. Of Probable Cause. Where defendant with full knowledge of the circumstances paid a sum of money and subsequently commenced an action to recover it back on the ground of overpayment, such facts were held to 524 MALICIOUS PROSECUTION. Art. 8. Evidence. warrant the inference that the prosecution was vexatious and coupled with an avowed purpose of the defendant to make the plaintiff come four times a distance of fourteen miles, to show express malice. Pangburn v. Bull, 1 Wend. 345. Where the prosecution complained of was plaintiff’s arrest on a charge of feloniously taking property,— Held, that evidence that the party making the complaint knew that a third party had a prima facie right to the property was sufficient evidence of want of probable cause. Weaver v. Townsend, 14 Wend. 192. Proof that the prosecution complained of was voluntarily dis- continued is prima facie evidence of want of probable cause, and places upon defendant the burden of showing probable cause. But the suffering of a judgment of non pros., or of a nonsuit, has not the same effect. The mere omission to prosecute a suit does not furnish sufficient ground for an action of malicious prosecution. Burhans v. Sanford, 19 Wend. 417. The mere fact that the plaintiff was acquitted in the former prosecution is not of itself evidence of want of probable cause. Palmer v. Palmer, 8 App. Div. 331, 40 N. Y. Supp. 829. Where the plaintiff did not take the stand as a witness, but merely proved an alibi, and that the defendant did not press the criminal prosecution against him and gave no direct evidence that he was not the person charged by defendant with larceny, it was held that he had failed to prove that the defendant did not have probable cause. Keating v. Fitts, 138 App. Div. 1, 77 St. Rep. 124, 43 N. Y. Supp. 124. The fact that in a former prosecution the plaintiff was acquitted by the jury is not of itself evidence that probable cause did not exist, because the want of probable cause does not depend upon whether the accused was guilty or innocent, but whether the prose- cutor had reasonable cause to believe him guilty. Young v. Lyall, 23 St. Rep. 215, 57 N. Y. Super. 39, 5 N. Y. Supp. 11. Where, after the arrest, the defendant altered the charge to one of vagrancy and the plaintiff was detained under such charge, the charge can be justified only by proof that the plaintiff was, as a matter of fact, guilty of the offense, and if the evidence upon this fact is conflicting and the plaintiff was acquitted, the jury in a civil action was justified in finding want of probable cause and the complaint should not be dismissed. francis v. Tilyou, 26 App. Div. 340, 83 St. Rep. 799, 49 N. Y. Supp. 799. MALICIOUS PROSECUTION. 525 Art. 8. Evidence. In Kutner v. Fargo, 34 App. Div. 319, 88 St. Rep. 332, 54 N. Y. Supp. 332, it was stated that the plaintiff must prove some- thing more than his innocence. He is bound affirmatively to show want of probable cause. The court said: “ There may doubtless be acts where the plaintiff knows nothing of the facts and circum- stances upon which the arrest was procured. There may even be cases where he can ascertain nothing upon that head, and where the bald fact of his arrest, coupled with the circumstances attend- ing it, may suffice, prima facie, to show a want of probable cause. But that is not this case.” It was held that the circumstances upon which the defendant acted were known to the plaintiff, and he merely put in evidence the indictment; he had failed to show want of probable cause. Where the prosecution complained of was the arrest of the debtor on the ground of obtaining goods upon false representations, and where it was shown that the plaintiff, on applying for credit, represented that his property consisted of certain real estate and referred to the records of the county clerk’s office as records of ownership, which representation was true,— Held, that want of probable cause was shown, notwithstanding that the defendant on searching had failed to discover the evidences of plaintiff’s title. Grinnel v. Stewart, 32 Barb. 544, 12 Abb. Pr. 220, 20 How. Pr. A78. If the suspicious circumstances which led to plaintiffs arrest might have been explained by proper investigation, the omission to make such investigation is evidence of absence of probable cause. Scott v. Dennett Surpassing Coffee Co., 51 App. Div. 321, 98 St. Rep. 1016, 64 N. Y. Supp. 1016. Where the charge for which the plaintiff had been prosecuted was larceny of some boards, testimony to show that no demand for the return of the boards had ever been made was held to be admissible as bearing upon the question of want of probable cause, and also upon the question of malice. George v. Johnson, 25 App. Div. 125, 83 St. Rep. 203, 49 N. Y. Supp. 208. Where the plaintiff, a plumber, had been arrested on defend- ant’s complaint for forcibly removing plumbing from defendant’s building, for which payment had been refused, it was held that not only did the evidence show « probable cause, but the existence of a real cause. Anderson v. How, 116 N. Y. 336. See this case limited in Wass v. Stephens, 128 N. Y. 129. 526 MALICIOUS PROSECUTION. Art. 8. Evidence. The defendant may show both absence of malice and the exist- ence of probable cause, and no evidence pertinent to either of these should be excluded. McKown v. Hunter, 30 N. Y. 628. “The law so far encourages criminal complaints as to protect the complainant against a civil action for damages in case the criminal proceeding, fairly conducted, results in the conviction of the person charged with a crime. Such conviction, fairly ob- tained without fraud or duress, is held to be conclusive evidence of probable cause. Robbins v. Robbins, 133 N. Y. 598, 28 Abb. N. ©. 256, 44 St. Rep. 684, affirming 39 St. Rep. 453, 15 N. Y. Supp. 215. The fact that the defendant was informed by his watchman that the plaintiff had twice attempted to break into defendant’s bathhouse proves probable cause for the arrest of the plaintiff. Francis v. Tilyou, 26 App. Div. 340, 83 St. Rep. 799, 49 N. Y- Supp. 799. Where the prosecution complained of was procuring an indict- ment of the plaintiff for obtaining goods by false pretenses,—Held, that evidence that the plaintiff had been guilty of conduct which to a man unversed in the technical rules of law would excite a well-grounded suspicion that a crime had been committed, was sufficient to work protection for the defendant on the ground that probable cause existed. Baldwin v. Weed, 17 Wend. 224. Probable cause being a defense, the exclusion of evidence ou the part of the defendant to show probable cause is error. Marks v. Townsend, 97 N. Y. 597. On the question of probable cause the inquiry is not limited the facts within the prosecutor’s knowledge, but information given to him by others may be shown. Owen v. New Rochelle Co., 88 App. Div. 53, 89 St. Rep. 913, 55 N. Y. Supp. 913. In an action for malicious prosecution, which consisted in charging the plaintiff with having poisoned chickens, and where the defendant having employed a person to investigate the matter, was asked what was the conversation this person said he had with the plaintiff, and where the question was excluded as hearsay. Held error; that the testimony was competent as tending to show the impression made upon the defendant’s mind and the materials he had before him in forming an opinion, and properly bore upon the question as to whether the defendant had reasonable ground to believe that the plaintiff was guilty of the offense charged. Hng- MALICIOUS PROSECUTION. 527 Art. 8. Evidence. lish v. Major, 59 Hun, 317, 36 St. Rep. 69, 12 N. Y. Supp. 935, citing 2 Addison on Torts, 766; Miller v. Milligan, 48 Barb. 30-— 47; Bacon v. Towne, 4 Cush. 217-240; Lamb v. Galland, 44 Cal. 609. For a case where the finding of the jury of want of probable cause was held warranted by the evidence, see Humphrey v. Pru- dential Ins. Co., 41 St. Rep. 453, 16 N. Y. Supp. 480. Evidence tending to show that the defendant did not believe plaintiff guilty of stealing articles, and was aware of the fact that the plaintiff claimed to own them, and that the object of the prose- cution was to compel plaintiff to return the property, was held to warrant the jury in finding want of probable cause. Sayles v. Hoezel, 48 St. Rep. 205, 20 N. Y. Supp. 553. Where the defendant, a police officer, charged with maliciously arresting the plaintiff, had previously arrested a disorderly per- son whom the plaintiff had ejected from a saloon, and who subse- quently, without knowledge of the facts, made a complaint and obtained the plaintiff’s arrest,— Held, that the question of lack of probable cause was properly submitted to the jury. Connelly v. McDermott, 3 Lans. 63. Where the plaintiff testified that the defendant had authorized him to indorse defendant’s name upon a note and pay it to the de- fendant, and where the testimony was corroborated, though denied by the defendant,— Held, that the jury were justified in finding want of probable cause and malice. School v. Schnebel, 29 St. Rep. 676, 8 N. Y. Supp. 855. Where the complaint in a former action contained an offensive charge, which was injurious to defendant’s character,— Held, in an action of malicious prosecution, not to be erroneous for the judge to present the two theories of the case presented by oppos- ing parties, to the jury, leaving them to say whether the offensive charge was necessary to the action, or was merely a cover for malicious purposes in destroying the plaintiff’s character. Shafer yv. Loucks, 58 Barb. 426. Evidence as to advice of counsel is inadmissible in the absence of proof that it was given after a full and fair statement of the ease had been made. Davidoff v. Wheeler & Wilson Co., 16 Mise. Rep. 31, 37 N. Y. Supp. 661, 73 St. Rep. 280, affirming 14 Misc. Rep. 456, 70 St. Rep. 742, 35 N. Y. Supp. 1019. The fact that the defendant proceeded on advice of counsel in 528 MALICIOUS PROSECUTION. Art. 8. Evidence. instituting the prosecution does not, of itself, warrant finding that there was probable cause. Scott v. Dennett Surpassing Coffee Co., 51 App. Div. 321, 98 St. Rep. 1016, 64 N. Y. Supp. 1016. Bona fide acts of a party done on advice given by counsel after full and fair statement of the facts is evidence of probable cause, however erroneously made. Richardson v. Virtue, 2 Hun, 211, 4 T. & C. 441. Where plaintiff was arrested and removed trom his house, and his request to be taken before a judge refused, as also his request for counsel, and where, in an insufficient examination by physi- cians, he was taken to an insane asylum,— Held, that there was sufficient evidence to support verdict of jury that the case was malicious. Sikman v. Crosby, 14 St. Rep. 563. Evidence that a police magistrate entertained a complaint in a criminal prosecution ; issued a warrant for the arrest of plaintiff; that plaintiff waived preliminary examination; that he was sub- sequently indicted, and that upon the trial the question of his guilt was submitted to the jury, and that the jury deliberated for some time before arriving at a verdict of acquittal, constitutes, at the most, only prima facie evidence of probable cause. Thus the court was correct in refusing to charge that these facts constituted conclusive evidence of probable cause. Stevens v. Metropolitan Ins. Co., 2 Mise. Rep. 584, 51 St. Rep. 575, 21 N. Y. Supp. 1024. For a case where a nonsuit was sustained, there being no proof of malice or want of probable cause, see Richard v. Boland, 5 Mise. Rep. 552, 26 N. Y. Supp. 57. See Wass v. Stephens, 6 N. Y. Supp. 131, for a case where the plaintiff was arrested for improperly cutting away pipe. The court said: “ If the work was done in a proper manner there was no probable cause for the arrest. The jury have found the cutting properly made, and under such a finding no ordinarily prudent man could suppose there was a criminal offense committed by the plaintiff. He was doing his duty under orders of a superior.” s. o. on appeal 128 N. Y. 123. SUBDIVISION 2. Of Malice. It is not necessary to show that the act complained of was prompted by angry feeling or vindictive motive. Malice may be and usually is inferred from want of probable cause. Burhans v. Sanford, 19 Wend. 417. MALICIOUS PROSECUTION. 529 Art. 8. Evidence. In malicious prosecution it is proper to show on the question of malice that at a time prior to the commencement of the action the defendant had made a second attempt to indict the plaintiff, al- though the action is based upon the previous attempt stated in the complaint. Also where the defendant was manifestly engaged in attempting to use criminal process to enforce a civil debt. Held to be competent to show what his agent said and did in carrying out his instructions. Reynolds v. Haywood, 77 Hun, 181, 59 St. Rep. 47, 28 N. Y. Supp. 467. Where the defendant corporation had plaintiff, its cashier, ar- restedonacharge of embezzlement,—Held, that proof that pending the criminal proceeding the secretary told the accused that there had been a little mistake and that they would withdraw the charge if he would release them, is competent upon the question of malice, and of the secretary’s authority, and as part of the res geste. Scott v. Dennett Surpassing Coffee Co., 51 App. Div. 321, 98 St. Rep. 1016, 64 N. Y. Supp. 1016. The defendant is at liberty to show absence of malice and the existence of probable cause, and no evidence pertinent to either of these issues should be excluded where it is charged that the defendant had maliciously made complaint against the plaintiff on a charge of perjury. It was held that the defendant should have been allowed to testify as to whether he believed the evidence given by the plaintiff was material, and whether he believed, at the time he made the complaint against plaintiff for perjury, that he was guilty of the charge; that it was error to exclude this testimony. McKown v. Hunter, 30 N. Y. 628. Where the prosecution complained of was the appearance of the defendant before grand jury, causing an indictment to be found against the plaintiff; and where in an action for malicious prosecution the plaintiff had shown that the defendant appeared before the grand jury,— Held to be error to exclude defendant’s offer to show what he said and did before them. It was open for him to show that he testified to the plaintiff’s own version of the transaction. This evidence went to the very gist of the action and bore upon the question of malice. Avery v. Blair, 20 Abb. N. C, 259, 105 N. Y. 669, reversing 21 Week. Dig. 178. Where a corporation is sued for malicious prosecution the presi- dent, who was the prime mover in the prosecution, may testify on behalf of the defendant as to his motive for having the plaintiff 34 530 MALICIOUS PROSECUTION. Art. 8. Evidence. arrested. Such testimony is competent to show absence of malice. Schwarting v. Van Wie N. Y. Grocery Co., 60 App. Div. 475, 103 St. Rep. 978, 69 N. Y. Supp. 978. Under the rules of evidence as established in this State, the defendant in an action for malicious ptosecution is competent to testify whether or not he was prompted by ill-will and malice in prosecuting the plaintiff. He should be permitted to answer such question. MacCormack v. Perry, 47 Hun, 71, overruling Lawyer v. Loomis, 3 T. & C. 396. Where the defendant, a police officer, had made a complaint against the plaintiff and caused his arrest, having full knowledge of the facts, it was held error to exclude evidence offered by the defendant, that he had acted upon statements made to him as an officer. This is so, although the defendant himself was present. Connelly v. McDermott, 3 Lans. 63. For a case where a judgment was reversed because of the admis- sion of improper testimony, which might have operated on the minds of the jury on the question of malice, see Le Roy v. Claus- Lipsius Co., 833 App. Div. 571, 87 St. Rep. 925, 53 N. Y. Supp. 925. The jury may infer malice from lack of probable cause, but are not bound to do so. Langler v. East River Gas Co., 41 App. Div. 470, 92 St. Rep. 992, 58 N. Y. Supp. 992. For a case where it was held that the evidence made a question for the jury on question of malice and want of probable cause, and where it was not error to refuse nonsuit, see Grout v. Cottrell, 50 St. Rep. 829, 22 N. Y. Supp. 336. For a case where the evidence was held to warrant a finding of malice, see Manasha v. Royal Benefit Society, 21 Misc. Rep. 474, 81 St. Rep. 628, 47 N. Y. Supp. 628. SUBDIVISION 38. Of Character. It is error to permit the defendant to testify that before he in- stituted the proceeding he was informed that the plaintiff was one of the worst men his employer knew; that he had been impris- oned; and was one of the biggest crooks in New York city, and had been in trouble elsewhere, ete. Hart v. McLaughlin, 51 App. Div. 411, 98 St. Rep. 827, 64 N. Y. Supp. 827. This opinion seems to be based upon the theory that the evidence was’ hearsay MALICIOUS PROSECUTION. 531 Art. 8. Evidence. as to specific facts and not as to general reputation of plaintiff. It seems to be admitted that proof of the general reputation of the plaintiff would have been competent on the question of prob- able cause, as well as in mitigation of damages. Citing Bacon v. Towne, 4 Cush. 217; Barron v. Mason, 31 Vt. 189; 2 Greenl. Ev., § 454, re to the relevancy of evidence tending to show previous quar- rel and assault between same parties, see Carpenter v. Halsey, 57 N. Y. 657, affirming 60 Barb. 45. Where the arrest was for a specific misdemeanor, not involving moral turpitude, affirmative evidence as to the plaintiff’s good character should be excluded. Richard v. Boland, 5 Misc. Rep. 552, 26 N. Y. Supp. 57. Evidence is properly excluded which tends to show that at or about the time the defendant had caused the plaintifi’s arrest for larceny, he was guilty of an attempted fraud upon defendant utterly disconnected with the alleged crime of which he was ac- cused. Stevens v. Met. Ins. Co., 2 Mise. Rep. 584, 21 N. Y. Supp. 1024. SUBDIVISION 4. ’ Of Damage. Under the Code of Civil Procedure, § 536, defendant may prove at the trial facts not amounting to a total defense, tending to miti- gate, or otherwise reduce plaintiff’s damage, if they are set forth in the answer. This seems to apply to an action for malicious prosecution, and in such action it was held that the defendant may allege in mitigation facts tending to show that what he did was done without malice, and that he had a right to suppose that there was reasonable cause for his action. Bradner v. Faulkner, 93 N. Y. 515, reversing 15 Week. Dig. 240. Where the plaintiff had been convicted by a justice of the peace and committed to the penitentiary he may give evidence of what occurred there, and as to what was done to him there. Nicholson v. Sternberg, 61 App. Div. 51, 104 St. Rep. 212, 70 N. Y. Supp. 212. Evidence of special damage, as damage to the business of an attorney, is not admissible unless specifically pleaded. Evins v. Metropolitan St. Ry. Co., 47 App. Div. 511, 62 N. Y. Supp. 495. See also as to what elements go to make up damage, “ Elements of the Wrong.” 532 MALICIOUS PROSECUTION. Art. 8. Evidence. = SUBDIVISION 5. Of Results of Former Prosecution. Where the outcome of a trial of a chief of police before trustees of a village on charges was in question, it was held error to permit such chief of police to testify that he was vindicated, ete. The record itself is the best evidence of this fact. Duffy v. Bierne, 30 App. Div. 384, 51 N. Y. Supp. 626, 85 St. Rep. 626. ‘Proof by the plaintiff that the former prosecution was termi- nated in his favor is not conclusive evidence of his innocence, and the defendant may prove that the plaintiff was, in fact, guilty. Barber v. Gould, 20 Hun, 446. But, on the contrary, proof of the guilt of the accused is con- clusive evidence of probable cause, and if such proof be made no action will be sustained, however plainly malice may be shown, or however improper the motives of the prosecutor. Turner v. Dinnegar, 20 Hun, 465. Where the former prosecution was in an action for moneys had in a fiduciary capacity, and where judgment therein was rendered for the then defendant, the fact was held to be conclusively proved that the defendant in the malicious prosecution action had no cause of action against the then plaintiff, the defendant in the prior suit, and that he had no real ground to cause the plaintiff’s arrest in that action. But, nevertheless, the defendant presum- ably acted in good faith and the burden was thus upon the plaintiff to show want of probable cause. Hodges v. Richards, 30 App. Div. 159, 85 St. Rep. 869, 51 N. Y. Supp. 869. SUBDIVISION 6. Burden of Proof — Miscellaneous. The burden is upon the plaintiff to show both want of probable cause and malice upon the part of defendant, and unless his evi- dence establishes both the want of probable cause and malice, the defendant will be entitled to a dismissal of the complaint. An- derson v. How, 116 N. Y. 288. The burden is upon the plaintiff to show affirmatively want of probable cause and malice and to introduce evidence in regard to them from which they may be legitimately inferred; and what- MALICIOUS PROSECUTION. 533 Art. 8. Evidence. ever the plaintiff may prove the defendant is at liberty to dis- prove. McKown v. Hunter, 30 N. Y. 628. The onus is upon the plaintiff to prove both want of probable cause for the prosecution and malice upon the part of defendant. If he fails to prove either of these facts the action necessarily fails. Heyne v. Blair, 62 N. Y. 21. In this action the burden is on plaintiff to show (1) want of probable cause; (2) malice in defendant; he must prove both of these propositions before he can recover. Young v. Lyall, 23 St. Rep. 216, 57 N. Y. Super. 39, 5 N. Y. Supp. 11. For a case where the judgment was reversed on account of the admission of irrelevant matter calculated to work upon the sympa- thies of the jury, see Grout v. Cottrell, 148 N. Y. 677, 38 N. E. 717. Where the plaintiff is arrested on a charge of attempting to abscond and defraud defendant, a hotel-keeper, he should be per- mitted to testify to a conversation with the defendant’s bartender, in the absence of defendant, in which the bartender told plaintiff that if he would go and get the money the bartender would keep the defendant quiet, and that he might take his clothes with him. Such evidence is competent as showing that the plaintiff left the hotel with an honest intention, ete. Nicholson v. Sternberg, 61 App. Div. 51, 104 St. Rep. 212, 70 N. Y. Supp. 212. Where the defendant corporation had caused the plaintiff’s ar- rest on charge of embezzlement, evidence that the proceedings on the trial were conducted under the defendant’s secretary’s eye and that of the general counsel, who sat with the district attorney, and made some suggestions, is evidence which will warrant finding that the corporation was responsible for the prosecution. Scott v. Dennett Surpassing Coffee Co., 51 App. Div. 321, 98 St. Rep. 1016, 64 N. Y. Supp. 1016. For a case where the weight of evidence was held to sustain a verdict, see Davidoff v. Wheeler & Wilson Co., 16 Misc. Rep. 31, 37 N. Y. Supp. 661, 73 St. Rep. 280, affirming 14 Misc. Rep. 456, 70 St. Rep. 742. In an action for malicious prosecution in procuring the arrest of the plaintiff for a felony, it was-held that evidence of a. settle- ment between plaintiff and defendant in a former prosecution was not admissible. Van Voorhes v. Leonard, 1 T. & C. 148. A stipulation identifying a certain affidavit as the original upon 534 MALICIOUS PROSECUTION. Art. 9. Procedure and Trial. which a warrant of arrest was issued, and admitting that the plaintiff was arrested upon such warrant, does not authorize the defendant to read such affidavit in evidence. Hankinson v. Giles, 29 How. Pr. 478, 17 Abb. Pr. 251. The complaint and deposition made by defendant to procure the plaintiffs arrest are entitled to greater weight than the tes- timony of the magistrate as to what the defendant stated when he applied for the warrant. Sayles v. Hoezel, 48 St. Rep. 205, 20 N. Y. Supp. 553. ARTICLE IX. PROCEDURE AND TRIAL. PAGE. Supprviston 2: “Drial, yseesciha hee eeu eee seg eeauale barns 534 2. Charge and nonsuit .......... eee ee eens 5384 Be OOSt een aeardece ena Pee eee ele aa ees 537 SUBDIVISION 1. Trial. Where the plaintiff was arrested in Queens county on a warrant which had been issued by a justice of the peace in Oswego county, and taken to Oswego county, where he was tried and acquitted, it cannot be said that the cause of action arose in Oswego county so as to entitle defendant to have a change of venue from Queens to Oswego county. Santoro v. Trimble, 68 App. Div. 413, 105 St. Rep. 785, 71 N. Y. Supp. 785. Where the action was brought by a foreign corporation it was held that such corporation could not be a legal resident of the State, although authorized to do business therein, and that the venue was properly changed to the county where the defendant resided. Shep- herd & Morse Lumber Co. v. Burleigh, 27 App. Div. 99, 84 St. Rep. 185, 50 N. Y. Supp. 135. SUBDIVISION 2. Charge and Nonsuit. A request to charge is improper which permits an inquiry as to the actual, as well as the reasonable belief of the prosecuting party at the time of making the complaint. Davidoff v. Wheeler & Wil- son Co., 16 Misc. Rep. 31, 37 N. Y. Supp. 661. As to a charge in a case turning upon the embezzling of partner- MALICIOUS PROSECUTION. 535 Art. 9. Procedure and Trial. ship property by one of the partners, see Griffin v. Keeney, 27 App. Div. 492, 84 St. Rep. 721, 50 N. Y. Supp. 721. Where the court charged: “If you find that this defendant made this accusation without any probable cause, and believing it was true, then the plaintiff has made out his case so far as the sec- ond branch — that for malicious prosecution — is concerned, be- cause the other elements have been proved,” the charge was held to be defective, and to warrant a new trial because the element of malice was left out. Vorce v. Oppenheim, 37 App. Div..69, 89 St. Rep. 596, 55 N. Y. Supp. 596. Where the court would not be justified in holding as matter of law that the defendant had such reasonable grounds of suspicion, supported by circumstances of such strength as to warrant a cau- tious man in believing that the plaintiff was guilty of the offense charged, it should not dismiss the complaint at the close of the plaintiffs testimony, nor should it direct a verdict for the de- fendant at the close of the case, because the defendant’s evidence contradicted in substantial respects the evidence on the part of the plaintiff. De Matters v. La Maida, 74 Hun, 432, 57 St. Rep. 178, 26 N. Y. Supp. 471. Where the court instructed the jury that there was no probable cause for the prosecution, and that such lack of probable cause was evidence of the malice necessary to sustain the action, and that they might find such malice in this fact alone, Held, that the charge was correct. It seems that it would have been error to charge that they must find malice from such lack of probable cause. The court said: “If there was no probable cause * * * the jury may nevertheless find for the defendant, upon the ground that there was no malice.” Citing Greenl. Ev., § 453, note “A.” Brown v. McBride, 24 Misc. Rep. 236, 86 St. Rep. 620, 52 N. Y. Supp. 620. Want of probable cause is evidence of malice, but not conclusive. Brown v. McBride, 24 Misc. Rep. 236, 86 St. Rep. 620, 52 N. Y. Supp. 620. Where in an action for malicious prosecution the plaintiff de- nied that he had done the wrong charged against him in such prosecution, and the only evidence on the trial was that of de- fendant and his agent,— Held, that the question of probable cause did not rest upon undisputed testimony, but that it was a question for the jury. The credibility of defendant’s testimony was for 536 MALICIOUS PROSECUTION. Art. 9. Procedure and Trial. the jury. Gverhon v. Ludlow, 25 St. Rep, 352, 6 N. Y. Supp. 111. Where there is evidence tending to show the fact that there was an agreement between the parties which authorized the plain- tiff to do the act for which the malicious prosecution was com- menced, it is proper for the judge to charge the jury that if from the evidence the jury should be of the opinion that there was such an agreement or understanding, that then there was want of probable cause. Stevens v. Lacour, 10 Barb. 62. In an action for malicious prosecution, founded upon the fact that the defendant had charged the plaintiff, his clerk, with em- bezzling money, the court charged that if the defendant, prior to making the complaint against the plaintiff, settled with him for the moneys claimed to have been embezzled as for moneys had and received, that this would constitute evidence that he did not believe the plaintiff had embezzled the money. Held error; that even if the money was embezzled the defendant had a right to settle as upon an implied contract; that such settlement was no bar to a criminal prosecution, and that it was not evidence that the defendant did not believe that the money had been embezzled. Fagnan v. Knox, 66 N. Y. 528, 1 Abb. N. C. 246, reversing 40 N. Y. Super. 41. The jury should be charged as to the rule governing exemplary damages, and its restrictions and limitations, and the question should not be left wholly to their discretion. Kutner v. Fargo, 20 Misc. Rep. 207, 79 St. Rep. 752, 45 N. Y. Supp. 752. Where the defendant had lost money, which was found near a woodpile where the defendant was at work; and where later the defendant, upon hearing that the plaintiff had displayed a large roll of bills, procured a warrant of arrest, although he knew that the plaintiff was engaged on a contract, and that a considerable sum would be paid him about that time,— Held, that the court properly refused to charge that the plaintiff could not recover as matter of law; that the case was one for the jury. Sprague v. Gibson, 43 St. Rep. 832, 17 N. Y. Supp. 685. It is error to charge “that the law infers malice when there is want of probable cause.” The jury may infer malice from want of probable cause, but it is not an absolute inference of law. Jennings v. Davidson, 13 Hun, 393. Where the only evidence tending to show probable cause is that MALICIOUS PROSECUTION. 537 Art. 10. Damage. of the defendant and his agent, while the plaintiff testifies that he was not guilty of the charge and is corroborated by others, as well as by the fact of his acquittal, it is error to dismiss the com- plaint; the question is for the jury. Giehon v. Ludlow, 6 N. Y. Supp. 111. Where the evidence shows facts which led the defendant to be- lieve the guilt of the plaintiff, although he was mistaken, and are not such as to charge him with reaching an erroneous conclusion through failure to exercise ordinary prudence and discretion, a verdict in favor of plaintiff, on the grounds that probable cause was not shown, should be set aside. Mohar v. Simmons, 3 St. Rep. 293. SUBDIVISION 8. Costs. If the plaintiff recovers less than $50 damages in an action for malicious prosecution the amount of his costs cannot exceed the damages. Code, § 3228. For a case where an extra allowance of $1,000 to the defendant on dismissal of the complaint was held to be excessive, see Dann v. Wormser, 38 App. Div. 460, 90 St. Rep. 474, 56 N. Y. Supp. 474, ARTICLE X. DAMAGE. PGE Supprvision 1. Compensatory damages ................. 537 2. Punitive damages ............ 0000 e eee 539 SUBDIVISION 1. Compensatory Damages. Damages in these cases may be based upon injury to person, to reputation, and to pocket. Scott v. Dennett, etc., Co., 51 App. Div. 321, 98 St. Rep. 1016, 64 N. Y. Supp. 1016. , Where the plaintiff had been sued civilly and his property at- tached by a corporation of which he had been an officer, it was held that the jury in awarding damages might consider the loss of his office, the actual expenses incurred by the plaintiff in his vindication, any general impairment of his integrity in social and mercantile aspect, and the shame and humiliation endured as a direct result of the publicity of his arraignment upon a charge 538 MALICIOUS PROSECUTION. Art. 10. Damage. injuriously affecting his trustworthiness. A verdict for $31,700 was sustained, although it was shown that he had spent. only $2,500 expenses for counsel fees in the prior action. Willard v. Holmes et al., 2 Mise. Rep. 303, 21 N. Y. Supp. 998, judgment reversed 142 N. Y. 492. It is correct to charge that if the jury find for the plaintiff he is entitled to his actual damages at all events. But if they find that the defendant instituted the prosecution in reckless disre- gard of plaintiff’s right, they may find therefrom that degree of malice which will enable them to add smart money to the amount of actual damage. Brown v. McBride, 24 Misc. Rep. 236, 86 St. Rep. 620, 52 N. Y. Supp. 620, and cases cited. Where the plaintiff in an action for malicious prosecution had paid his attorney a fee of $150 to defend a replevin suit brought by the defendant, he is entitled to recover that item as damage in the malicious prosecution. Where, however, the plaintiff had in the replevin action recovered six cents damages, with costs, the demand for damages for the taking of goods is res adjudicata, and cannot be recovered in a subsequent action for malicious prosecution. Gerken v. Ruppert, 33 Mise. Rep. 382, 67 N. Y. Supp. 589, 101 St. Rep. 589. In an action for malicious prosecution the plaintiff may recover for the expenses of his defense in the former action. Sheldon v. Carpenter, 4 N. Y. 580. : In an action for malicious prosecution the plaintiff may re- cover for the injury to his fame and reputation, and this bars an action for slander for the same accusation. Sheldon v. Carpen- ter, 4 N. Y. 580. If the plaintiff intends to give evidence or particular instances of loss occasioned by the wrongful acts of the defendant, a bill of particulars thereof must be given, and it seems the facts must be pleaded. Dietz v. Leber, 38 App. Div. 563, 87 St. Rep. 977, 53 N. Y. Supp. 977. Evidence of injury to plaintifi’s business is not admissible unless such injury has been specially pleaded. So held where plaintiff was an attorney, and where such evidence was intro- duced upon the theory that it tended to establish “loss of credit and reputation,” as alleged in the complaint. Evins v. Metropoli- tan Street Ry. Co., 47 App. Div. 511, 96 St. Rep. 495, 62 N. Y. Supp. 495. MALICIOUS PROSECUTION. 539 Art. 10. Damage. In Johnson v. Comstock, 14 Hun, 238, a verdict of $1,000 was held not to be excessive for the malicious issuance of a war- rant of search and for searching plaintiff’s premises thereunder. Where the plaintiff had been arrested through mistake, of which the plaintiff was the responsible author, it was held that a verdict of six cents should not be set aside upon the ground of inadequate damages. Toomey v. D., L. € W. BR. BR. Co., 2 Mise. Rep. 82, 49 St. Rep. 623, 21 N. Y. Supp. 448. A verdict of $1,000 was held not to be excessive where the plaintiff was only locked up for half an hour on a charge of for- gery. Thorpe v. Carvalho, 14 Misc. Rep. 554, 36 N. Y. Supp. 1, 70 St. Rep. 760. Where the plaintiff had been arrested on a charge of forgery, though the proceedings were subsequently abandoned,— Held a verdict of $1,000 was not’ excessive. School v. Schnebel, 29 St. Ttep. 676, 8 N. Y. Supp. 855. Where plaintiff was discharged without trial, and was put to no expense,— Held, nevertheless, that a verdict for $250 was not excessive. Sprague v. Gibson, 43 St. Rep. 832, 17 N. Y. Supp. 685. ‘ SUBDIVISION 2. Punitive Damages. If the jury find that the defendant instituted the prosecution in wanton and reckless disregard of the plaintiff’s rights, they may find therefrom that degree of malice which will warrant smart money, in addition to actual damages. Brown v. McBride, 24 Mise. Rep. 236, 86 St. Rep. 620, 52 N. Y. Supp. 620. A corporation is not liable in exemplary damages for the ma- licious prosecution by its agents unless such acts were previously authorized or subsequently ratified, and to warrant ratification there must be proof that the principal had knowledge of the agent’s malice, or that the circumstances warranted the inference that he believed the agent to have been guilty of the malicious act. Kutner v. Fargo, 20 Misc. Rep. 207, 79 St. Rep. 752, 45 N. Y. Supp. 752. Advice of counsel is material in mitigation of damages, though it cannot mitigate actual damages. The actual damage done to a party cannot be mitigated. Brown v. McBride, 24 Misc. Rep. 236, 86 St. Rep. 620, 52 N. Y. Supp. 620. 540 MALICIOUS PROSECUTION. Art. 11. Malicious Abuse of Process. ARTICLE XI. MALICIOUS ABUSE OF PROCESS. The text-book writers treat of the distinction between malicious prosecution and abuse of legal process. If the process, either criminal or civil, is willfully made use of for the purpose not justi- fied by the law, it is an abuse for which an action will lie. The following are illustrations: Entering up judgment and suing out execution after demand has been satisfied; suing out attachment for an amount greatly in excess of debt; causing arrest for more than is due; levying execution for an excessive amount. In these cases proof of actual malice is not important, except as it may tend to aggravate damages. It is enough that the process was willfully abused to accomplish some unlawful purpose. Cooley on Torts (2d ed.), 220. In malicious abuse of process, process which in itself may have been lawful has been perverted to a purpose not contemplated by it. All that is required for the cause of action is proof that the process has been applied to a purpose not named or implied by it to the damage of the plaintiff. Perversion or abuse of the process gives the name “ malicious” to the cause. The malice is fictitious or may be such. Bigelow, § 320. This author adds that it is not necessary for the plaintiff to maintain this action to await the determination of the. original proceeding, or to prove that there was no probable cause for the issuance of the particular process. Malicious abuse of process is distinguished from malicious prosecution in at least two respects. First, in that want of prob- able cause is not an essential element (Hazard v. Harding, 63 How. Pr. 326), and, second, that it is not essential that the original proceeding shall have terminated (Zinn v. Rice, 154 Mass. 1). It differs from false imprisonment in that, among other things, a warrant valid on its face is no defense. Hale, 361. An action lies for malicious abuse of process even if the process were properly issued, is valid in form, and the proceeding was justified and proper in its inception, but injury arises in conse- quence of the abuse in subsequent proceedings. Hale, 361. In Webb’s Pollock on Torts, note, p. 399, the American editor cites very fully from Wood v. Graves, 144 Mass. 366, as to abuse of process, saying that the opinion very concisely and clearly MALICIOUS PROSECUTION. 541 Art. 11. Malicious Abuse of Process. states the law of this action as follows: “ There is no doubt that an action lies for the malicious abuse of lawful process, civil or criminal. It is to be assumed in such a case that the process was lawfully issued for a just cause, and is valid in form, and that an arrest or other proceeding upon the process was justifiable and proper in its inception. But the grievances to be redressed arise in consequence of subsequent proceedings. For example, if, after the arrest, upon civil or criminal process, the person ar- rested is subjected to unwarrantable insults and indignities, is treated cruelly, is deprived of proper food, or is otherwise treated with oppression and undue hardship, he has a remedy by an ac- tion against the officer, and against others who unite with the officer, in doing the wrong. “ There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employs it for some unlawful object, not the purpose it is intended by law to effect; in other words, perversion of it. * * * On the other hand, legal process, civil or criminal, may be maliciously used so as to give rise to a cause of action where no object is contem- plated to be gained by it other than its proper effect and execu- tion.” The following authorities are cited to the point: Johnson v. Reed, 136 Mass. 423, citing Page v. Cushing, 88 Me. 523. See Peters v. Tunell, 43 Minn. 459, 45 N. W. 866; Casey v. Hanrick, 69 Tex. 44, 6 S. W. 405; Wood v. Bailey (Mass.), 11 N. E. 573; Emery v. Ginnan, 24 Ill. App. 65; Cuhady v. Powell, 35 Tl. App. 29; Banrett v. Reed, 51 Pa. St. 190; Sav- age v. Brewer, 16 Pick. 453; Mayer v. Walter, 64 Pa. St. 285, followed in Eberly v. Rupp, 90 Pa. St. 259; Juchter v. Boehm, 67 Ga. 538; Crusselle v. Pugh, 71 Ga. 747; Emerson v. Cochran, 111 Pa. St. 619; Smith v. Weeks, 60 Wis. 94. In cases where the process is valid, an officer may still render himself liable for its abuse; a judicial officer may sometimes be- come liable for malicious abuse of legal process, as where they employ it for some unlawful object, not being the object for which it was intended by law. Newell on Malicious Prosecution, §§ 67, 78, citing Berrier v. Morehead, 22 Nebr. 687, 36 N. W. 118; Page v. Cushing, 38 Mo. 523; Mechem on Public Officers, § 771; Mayer v. Walter, 64 Pa. St. 283, sustains the language of the ex- tracts from Slomer v. People, 25 Til. 70; Green v. Rumsey, 2 Wend. 611; Hackett v. King, 6 Allen, 59. 542 MALICIOUS PROSECUTION. Art. 11, Malicious Abuse of Process. In Holley v. Mix, 3 Wend. 351, it was held that false imprison- ment will lie against an officer and the complainant in a criminal prosecution where they combine and extort money from a party accused by operating upon his fears, although the party be in the custody of the officer, under a valid warrant, issued upon a charge of felony. In note to that case, it is said that one who abuses the authority in fact does not become thereby a trespasser ab initio; but otherwise, if he abuse an authority in law, citing Van Brunt v. Schenck, 18 Johns. 414; Allen v. Crofoot, 5 Wend. 506; Du- mont v. Smith, 4 Den. 319; Carnrick v. Myers, 14 Barb. 9. As to when one becames a trespasser ab initio, see “ The Six Carpenters’ Case,” 8 Coke, 290. Entering up judgment and suing out execution after 4 demand is satisfied is malicious abuse of process. Barnett v. Reed, 51 Pa. St. 190. Levying execution for an excessive amount is malicious abuse of process. Sommer v. Wilt, 4 S. & R. 19; Churchill v. Siggers, 3 EL. & Black. 929. Suing out an attachment for an amount greatly in excess of the debt is malicious abuse of process. Savage v. Brewer, 16 Pick. 453; Moody v. Detsch, 85 Mo. 287. An abuse of a lawful arrest is also false imprisonment, as cruelly treating the arrested person, insulting him, depriving him of proper food, imposing on him undue hardships, extorting money from him, or doing to him any other like wrong not within the process. Bishop, § 210. In Baldwin v. Weed, 17 Wend. 224 (233), an action was brought for malicious prosecution, which, it was held, could not be sustained upon the process governing that action. Nelson, Ch. J:, in so holding, expresses the view that an action for tres- pass, assault, and false imprisonment should have been brought and was the proper remedy for excess of authority and abuse of process. Citing Rodgers v. Brewster, 5 Johns. 125, which is in turn cited in Blakeley v. Weaver, 46 Hun, 174 (175), to the point that, while reasonable intendments may go in support of. official purposes and acts of ministerial officers, they will be charge- able for an abuse of their authority in the execution of process which results in unreasonable and unnecessary oppression or preju- dice to the persons against whom, or against whose property, it is issued. Citing also Platt v. Sherry, 7 Wend. 236. MALICIOUS PROSECUTION. 543 Art. 11. Malicious Abuse of Process. In the latter case it is said that, for maliciously and unreason- ably executing process, with intent to oppress, for keeping prop- erty in an unsafe place upon execution, and exposiug it to destruc- tion, and in numerous other instances, the only remedy is at com- mon law. Citing Jenner v. Joliffe, 9 Johns. 381. Where the process of the court is illegally and wrongfully used to compel the surrender of property or rights, the right of action accrues to the party injured. Hazard v. Harding, 63 How. Pr. 327. In Brown v. Feeter, 7 Wend. 301, it was held that an action lies against a party who wrongfully and willfully takes out an execution under a judgment, which he knows to be paid and satisfied, whereby the property of the defendant is taken and sold, and to support the action it is not necessary to allege and prove actual malice. If cruelty, malice, or oppression appear to have governed or aggravated the imprisonment, they shall not cover themselves with a thin veil of legal forms, nor escape under a cover of a justi- fication the mcst technically regular. 1 T. R. 536; Esp. Dig. 323. Classed as a principle from this case that, “though the original arrest may be warrantable, yet for any subsequent oppression or cruelty an action lies.” Cited Doyle v. Russell, 30 Barb. 300 (305). In Bebinger v. Sweet, 1 Abb. N. C. 263, it is held that a com- plaint alleging that defendant led plaintiff into making a hard and unconscionable lease, and then, after plaintiff had sown crops, etc., turned him off and procured his arrest on a malicious charge of embezzlement and took possession of his household goods, and that all these acts were in pursuance to defendant’s plan to dam- age plaintiff, states facts sufficient to constitute a cause of action for abuse of process. Neither a judgment creditor nor an officer is justified in using the process of the court aggressively to the injury of the debtor or any third person. A party who directs and the officer who makes the oppressive levy is responsible for the unlawful act; although there be no actual corruption or intentional fraud on the part of the sheriff, under such circumstances, yet, if he abuse his trust, he is answerable therefor. Cantine v. Clark, 41 Barb. 629. It is an abuse of the process of the court to issue execution upon a satisfied judgment, and seek to enforce the same by levying upon 544 MALICIOUS PROSECUTION. Art. 11. Malicious Abuse of Process. and selling the property of the defendant. Swann v. Saddlemyer, 8 Wend. 76, cited Buffalo Lubricating Oil Co. v. Everest, 30 Hun, 586. In Dishaw v. Wadleigh, 15 App. Div. 206, 44 N. Y. Supp. 207, 78 St. Rep. 207, in opinion Herrick, J., the authorities, with refer- ence to abuse of process, are collated and considered. The conclu- sion arrived at is that, if legal process is willfully made use of for a purpose not justified by law, it is an abuse for which an action will lie. In such an action it is not necessary that the plaintiff should allege or prove that the proceeding complained of has ter- minated. So held where the defendant caused a subpeena and attachment to be issued, not for the purpose of procuring the at- tendance of the plaintiff as a witness in the former case, but, under the idea that such claim was small, he would pay it rather than submit to the discomfort and expense of attending court at a great distance from his residence. Held, that such a use of subpcenas was a perversion and abuse of process of the court, and calculated to bring the administration of justice into reproach and contempt. Same case, 4 N. Y. Annot. Cas. 170, followed by note on “Actions for Abuse of Process.” An officer may also become liable for erresting or holding a person under process which has, for any reason, become void, as in Davis v. Bowe, 118 N. Y. 55, where it was held that, where a judgment was paid and discharged of record, and the sheriff re- ceived without objection an order to discharge the judgment debtor, who is out on bail and subsequently rearrested, he was liable for false imprisonment. CHAPTER XIV. FALSE IMPRISONMENT. PAGE ARTICLE I. Definitions and distinctions .............. 545 TI, Remedies 2 sacdcdes eos eee eens eevee ees 550 III. Elements of the wrong .................. 554 IV. Arrest without process ............ eee eee 567 VY. Liability for arrest on void or invalid process. 575 VI. Liability of judicial officers.............. 587 VII. Liability for acts of servants and agents.... 596 VIII. Liability of attorney and client ........... 603 IX. Arrest by military authorities ............ 605 X, Defenses: «ca0crcvneieavainss aba eae 606 XI. Imprisonment of various classes of persons.. 612 DOLL: Parties: eicugesete atl ek hear ene bag wal ers 616 SEL Pleaditi ess. censors eee eae ee bees 619 XIV. Evidence icsceiec ned grasa sa ees ee 632 XV. Procedure and trial .............0...00.0. 639 AVL Damages. icone aeons eae te ws 644 ARTICLE I. DEFINITIONS AND DISTINCTIONS. Suppivision 1. Definitions ......... 0... cece eee eee eee 545 2. Distinguished from malicious prosecution... 547 SUBDIVISION 1. Definitions. To constitute the injury of false imprisonment there are two points requisite: First, the detention of the person; second, the unlawfulness of such detention. Every confinement of the person is imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets. 3 Bl Comm. 127. “Freedom of the person includes immunity not only from the actual application of force, but from every kind of detention and restraint not authorized by law.” Any application of such re- straint constitutes the wrong of false imprisonment; which, though 35 546 FALSE IMPRISONMENT. Art. 1. Definitions and Distinctions. generally coupled with assault, is nevertheless a distinct wrong. Pollock, 188. False imprisonment is the unlawful and total restraint of the liberty of the person. Hale, 243. False imprisonment may be defined most simply and clearly as any unlawful detention of the person. 12 Am. & Eng. Encye. of Law (2d ed.), 721. False imprisonment is trespass committed by one man against the person of another by unlawfully arresting him and detaining him without lawful authority. 3 Wait’s Action and aaa 305, citing Crowell v. Gleason, 10 Me. 825; one yv. Lower, 3 Ind, 285. Though it has been held in England that to nee one’s way so as to prevent him from passing in another direction was not false imprisonment, still it seems to have been regarded as an ac- tionable wrong. See Bird v. Jones, 7 Q. B. 742. False imprisonment is the unlawful restraint of a person con- trary to his will either with or without process of law. Thorp v. Carvalho, 14 Mise. Rep. 554, 36 N. Y. Supp. 1, 70 St. Rep. 760. Citing 7 Am. & Eng. Encye. of Law, 61. Any actual seizing or touching of, or interfering with the per- son which, if not justified, will amount to a trespass, will sustain an action of false imprisonment. Shuley v. Muley, 14 Week. Dig. 384, A definition of false imprisonment, together with the ele- ments which constitute the wrong, will be found in the charge of Giegerich, J., in Limbeck v.. Gerry, 15 Mise. Rep. 663, 39 N. Y. Supp. 95. “ False imprisonment is the unlawful restraint of a person contrary to his will, either with or without process of law. It is a trespass to the person, committed by one against another, by unlawfully arresting and detaining him against his will; a direct wrong or illegal act in which the defendant must have par- ticipated, or the act must have been of his direct or indirect pro- curement. Two things are requisite in order to constitute the offense: First, detention of the person; second, the unlawfulness of such detention. A pure, naked, unlawful detention, unaffected by any question of motive or purpose, constitutes false imprison- ment. The want of lawful authority is an essential element of the offense ; malice is not.” A husband who has procured an absolute divorce from his wife, FALSE IMPRISONMENT. 547 Art. 1. Definitions and Distinctions. which awards him custody of the children, is nevertheless liable for false imprisonment for having his former wife arrested on her refusing to give up a child of whom she had obtained possession. The court says: ‘ He could have taken the child by force, if the decree allowed, in a gentle manner; but he could not arrest the plaintiff because she refused to voluntarily give up the child.” Monjo v. Monjo, 538 Hun, 145, 6 N. Y. Supp. 132. An assistant clerk at a police station was held to be justified in ordering the temporary removal of a person arrested from the court- room if the orderly proceedings of the court required it, even if done without the direction of the court or its officer. Hopner v. McGowan, 116 N. Y. 405. An action in the name of an illegitimate child will lie against its putative father for false imprisonment where he wrongfully and fraudulently obtained possession of the child and retained possession of it, because he has no right to the custody of the child as against its mother. Robalina v. Armstrong, 15 Barb. 247. By virtue of section 3343, subdivision 9, of the Code of Civil Procedure, the term “ personal injury ” includes false imprison- ment. SUBDIVISION 2. Distinguished from Malicious Prosecution. There is much confusion in the authorities in distinguishing be- tween false imprisonment and malicious prosecution, and they are frequently united in the cases. See Perry v. Sutley, 18 N. Y. Supp. 633; Brown v. Chadsey, 39 Barb. 262; Warren v. Dennet, 17 Mise. Rep. 86, 39 N. Y. Supp. 830, criticised in 12 Am. & Eng. Encye. of Law (2d ed.), 731. But the distinction between the two is radical. Thus in Hobbs v. Ray, 18 R. I. 84, it was said: “These actions are quite distinct and different from each other. The action of trespass for false imprisonment lies for the arrest, or some other similar act, of the defendant which, upon the stating -of it, is clearly illegal; while malicious prosecution, on the con- trary, lies for a prosecution which, upon the stating of it, is mani- festly legal.” The nature of malicious prosecution was thus stated in Colter v. Lower, 35 Ind. 285, 9 Am. Rep. 735: “If the imprisonment is under legal process, but the action has been commenced and carried on maliciously and without probable cause, it is malicious 548 FALSE IMPRISONMENT. Art. 1. Definitions and Distinctions. prosecution. If it has been extra-judicial, without legal process, it is false imprisonment.” It seems that one of the distinctions between action of false im- prisonment and action for malicious prosecution is that in the latter proof of actual malice is vital to the support of the action and not merely on the question of damages. See opinion in Von Latham v. Libbey, 38 Barb. 343. In Warren v. Dennitt, 17 Mise. Rep. 87, 39 N. Y. Supp. 830, the court thus distinguishes the elements which underlie the two actions: “In the one (action) for false imprisonment, the plaintiff must show that the defendant had him imprisoned or deprived him of his liberty, and that the mode or process was unlawful — t. @., without due process of law. He must prove want of probable cause and malice is presumed. The defendant may, however, dis: prove malice. In an action for malicious prosecution the plaintiff must prove that the process was regular and the arrest under it lawful, or by lawful authority acting for itself, and must also prove want of probable cause and that the same was malicious. Here malice is not presumed, but must be proven.” Although the causes of action may be joined. Marks v. Townsend, 97 N. Y. 590. And in Cunningham v. East River El. Light Co., 60 N. Y. Super. 282, 17 N. Y. Supp. 372, the distinction between false imprisonment and malicious prosecution was stated as follows: “Tt is well settled that the material allegations in a complaint in an action for false imprisonment, as distinguished from one for malicious prosecution, are that the defendant had the plaintiff imprisoned, and that the process was unlawful; 7 e¢., without authority of law. The action cannot be maintained where the process was regular and the arrest under it lawful. See Ackroyd v. Ackroyd, 3 Daly, 38; Marks v. Townsend, 97 N. Y. 590; Nebenzahl v. Townsend, 61 How. Pr. 353. Where the power to arrest exists an action for false imprison- ment will not lie. The party must sue for malicious prosecution. Christie v. Bergh, 15 Abb. Pr. (N. 8.) 51. In Sleight v. Ogle, 4 E. D. Smith, 445, and Waldheim v. Sichel, 1 Hilt. 45, it was held that an action for false imprisonment does not lie where the arrest was upon legal process. If such arrest was without probable cause the proper remedy is for malicious prosecution. FALSE IMPRISONMENT. 549 Art. 1. Definitions and Distinctions. See Thorp v. Carvalho, 14 Mise. Rep. 554, 36 N. Y. Supp. 1, 70 St. Rep. 760, for a statement of the distinction between ma- licious prosecution and false imprisonment, and the various ele- ments which must be shown to sustain this action. In Brown v. Chadsey, 39 Barb. 261, the court distinguishes be- tween the action for false imprisonment and malicious prosecu- tion. These two classes of wrongs and remedies require different rules, although the pleading and evidence are not essentially dis- tinct. In an action for false imprisonment the gist of the action is unlawful detention. Malice in the defendant will be inferred so far, at least, as to sustain the action, and the only bearing of evi- dence to show or disprove actual malice is upon the question of damages. * * * In the action for malicious prosecution, on the other hand, it is not necessary that the prosecution or the arrest should have been unlawful or unjustifiable upon its face; but it must have been malicious and without probable cause. Malice and want of probable cause are the gist of the action and must be both stated and made out. See opinion in this case at pages 261-263, for an excellent discussion of the distinctive features of the two actions. In Farnam v. Fealey, 56 N. Y. 453, the court distinguishes between false imprisonment and malicious prosecution as follows: ‘Tf in this action the defendant had no such direct agency in the original arrest of the plaintiff as to make him liable in an action for false imprisonment, the action may be maintained as one in the nature of malicious prosecution, if the subsequent arrest upon the warrant issued by a magistrate was instigated by him ma- liciously and without probable cause.” And the court then adopts the distinction between the two forms of actions as stated by Ash- hurst, J., in Morgan v. Hughes, 2 T. R. 114, as follows: ‘“ Where the immediate act of imprisonment proceeds from the defendant the action must be trespass, and trespass only; but where the act of imprisonment by one person is in consequence of information from another, then action on the case is the proper remedy, because the injury is sustained in consequence of the act of that other. To support the action for malicious prosecution where the arrest was made upon a warrant issued by a magistrate having jurisdic- tion to issue it, it must appear that the prosecution was instigated by the defendant and the onus is upon the plaintiff to show that the defendant was the prosecutor and that the prosecution was 550 FALSE IMPRISONMENT. Art. 2. Remedies. without reasonable or probable cause.”” See also Burns v. Erhen, 40 N. Y. 463. An action for false imprisonment cannot be maintained where the power to make the arrest existed, and if such power is exer- cised without probable cause and with malice the proper remedy is action for malicious prosecution. Stage Horse Cases, 15 Abb. Pr, CS, 8.) 51. Where the plaintiff joined actions for false imprisonment and malicious prosecution, and the court refused to dismiss the com- plaint as to the latter, and the jury found for the defendant thereon, it was held that it was so distinct from the other cause of action that the jury was not prejudiced by the ruling. Thorne v. Turck, 18 Week. Dig. 550, s. c., 94 N. Y. 90. ARTICLE II. REMEDIES. aks Supprviston 1. Criminal action ........... 0. cece ee ee eee 550 2. Habeas corpus ... 0.0 ccc cece cee eee ees 550 8. No injunction granted ..............046. 551 4. Jurisdiction ........... 2.0.0 eee eee awae SSL 5. Statute of limitations ................08. 552 6. Survival and assignment...............45 553 SUBDIVISION 1. Criminal Action. Like many other personal injuries false imprisonment may give rise to criminal as well as civil action. See §§ 119, 168, 556, of Penal Code. The last section is, in substance, as follows: “A public officer, or a person pretending to be such, who unlaw- fully and maliciously: under pretense or color of official authority, (1) arrests another or detains him against his will * * * is guilty of a misdemeanor.” SUBDIVISION 2. Habeas Corpus. For false imprisonment there are three possible means of re- lief: (1) A criminal action where allowed by criminal statutes; (2) proceedings in habeas corpus; (3) civil action for damages. In former times there were four writs by which one may be re- FALSE IMPRISONMENT. 551 Art. 2. Remedies. stored to his liberty after false imprisonment (see 3 Bl. Comm. 128). But all are now obsolete save habeas corpus. Habeas corpus is to end the imprisonment and regain liberty (see 1 Fiero on Special Proceedings [2d ed.], 57); and is a spe- cial proceeding. The civil action is to recover damages for the wrong and lies whether the habeas corpus has been brought or not. The custodian of a prisoner who is discharged upon habeas corpus has no interest in the subject-matter and would not be compromised in a future action for false imprisonment. The de- cision in habeas corpus would not bind him. Matter of Quinn, 2 App. Div. 104, 37 N. Y. Supp. 534, 73 St. Rep. 149. SUBDIVISION 3. No Injunction Granted. In Davis v. American Society, etc., 75 N. Y. 362, it was held that an equitable action will not lie to restrain an officer of a society for the prevention of cruelty to animals from making an arrest for a violation of the statute. The question whether there has been a violation of such statute cannot be determined in an equitable action. The guilt of a person accused of a crime is to be determined in a.common-law court by a jury. SUBDIVISION 4. Jurisdiction. By virtue of section 2863, subdivision 3, of the Code, a jus- tice of the peace cannot take cognizance of a civil action where it is brought to recover damages for false imprisonment. A civil action for false imprisonment is not included within the statutory jurisdiction of the municipal courts of city of New York. See Code, § 3215. Nor of The City Court of Albany or Troy. See Code, § 3223. As regards the jurisdiction of the courts of the city and county of New York over territory in the lower bay, which constitutes the county of Kings, under the Consolidation Act (Laws of 1882, chap. 410), see Midford v. Kann, 32 App. Div. 228, 52 N. Y. Supp. 995. By virtue of section 317, subdivision 2, Code of Civil Proced- ure, the City Court of New York has jurisdiction in an action in favor of or against a person “belonging to or on board of a vessel in the merchant service to recover damages for false im- 552 FALSE IMPRISONMENT. Art. 2. Remedies. prisonment committed on board the vessel, upon the high seas, or in a place without the United States. But this section does not confer upon the City Court authority to proceed as a court of admiralty or maritime jurisdiction.” Note that section 3187, applicable to proceedings in certain marine cases, provides that the article does not prevent plaintiff from commencing and con- ducting in the ordinary manner an action for a cause specified in section 317, subdivision 2. The Supreme Court has jurisdiction and is bound to entertain an action for false imprisonment between residents of the State for imprisonment by the plaintiff in a foreign country. Tupper v. Morin, 25 Abb. N. C. 398, 12 N. Y. Supp. 310, distinguish- ing Burdick v. Freeman, 10 St. Rep. 756, cited 61 App. Div. 342. There are many statutes relating to both civil and criminal ac- tions bearing upon the legality or illegality of the imprisonment. These various statutes must, of course, be consulted by the prac- titioner when a case of false imprisonment arises under them. For instance, the duration of the imprisonment of a person convicted under civil process is limited by section 111 of Code of Civil Pro- cedure. There can be no imprisonment for money due on inter- locutory costs. § 15. The time of arrest in justices’ courts is limited. § 2900. See, generally, sections of Code relating to Imprisonment for Contempt; Discharge of Judgment Debtor; Discharge from Execution against Person, etc. SUBDIVISION 5. Statute of Limitations. By provisions of section 384 of the Code of Civil Procedure an action for false imprisonment is among those which must be commenced within two years. The action of false imprisonment is barred in two years. Hur- lehy v. Martin, 31 St. Rep. 471, 10 N. Y. Supp. 92. Where the tort is continuing the right of action is also con- tinuing. Moak’s Underhill on Torts, 69, citing Whitehouse v. Fellowes, 10 C. B. (N. 8.) 765. This very continuance of the im- prisonment de die in diem is a new imprisonment, and, therefore, the bar of limitation commences to run from the last, and not from the first, day of the imprisonment. Moak’s Underhill on Torts, 69, citing Hardy v. Ryle, 9 B. & C. 608. Where the plaintiff alleged that he was confined in an insane oO FALSE IMPRISONMENT. 553 Art. 2. Remedies. asylum pursuant to a conspiracy between defendants, he does not thereby enlarge the scope of the action and make applicable a different rule of limitations than that which applied to the action of false imprisonment. Such action is governed by the two years’ limitation and not by the six years’ limitation applicable to an action for personal injury where no other period of limitation is prescribed. Oakes v. Oakes, 55 App. Div. 576, 101 St. Rep. 427, 67 N. Y. Supp. 427. It should be noted that the arrest once at an end the statute begins to run. In Dusenbury v. Kielly, 58 How. Pr. 286, it was said: “The action for false imprisonment accrues the instant the imprisonment takes place and becomes complete the moment the imprisonment ceases.” This case was affirmed in 85 N. Y. 383. In this case the warrant on which the arrest was made was dismissed; vacated, and set aside although the proceedings were continued. The court held that the statute began to run at the termination of the imprisonment, and that the subsequent pro- ceedings did not amount to a continuance of the original impris- onment. “If the proceedings continued the imprisonment con- tinued.” Again, in Van Ingen v. Snyder, 24 Hun, 81, it was held that the right of action began when the imprisonment ceased, citing Dusenbury v. Kielly, supra. SUBDIVISION 6. Survival and Assignment. By virtue of section 1910, subdivision 1, Code of Civil Proced- ure, an action to recover damages for personal injury cannot be transferred, and by virtue of section 3348, subdivision 9, an ac- tion for false imprisonment is included among those actions for personal injuries. As to assignment of an action for false imprisonment, see Chap- man v. Dyett, 11 Wend. 33. By directing the illegal issuance of a body execution a creditor becomes a joint tort feasor with his attorney, and the assignment by the plaintiff to him of the claim against the attorney in con- sideration of the discharge of the original judgment also dis- charges the attorney. The court says: “ The law will not permit the principal tort feasor to buy and enforce against his subordi- nates claims for damages occasioned by his instructions.” Baker v. Secor, 22 St. Rep. 97, 4 N. Y. Supp. 303. 554 FALSE IMPRISONMENT. Art. 3. Elements of the Wrong. ° ARTICLE III. ELEMENTS OF THE WRONG. PAGE. Supprvision 1. Malice not essential ................0.4. 554 2. Probable cause ....... 0... eee eee eee 556 38. Detention is necessary .......-...-+0000. 558 4, Physical compulsion not necessary......... 559 5. Place of detention is immaterial........... 560 6. Detention must be against will of plaintiff... 561 7. Detention originally lawful may become un- awh) wot ct cat ee pines arpa wa chee 562 Termination of detention — when necessary. 564 2 SUBDIVISION 1. Malice not Essential. One of the features distinguishing false imprisonment from malicious prosecution is that in the former, malice is not neces- sary. For example, it is false imprisonment where an officer, though in good faith, arrests the wrong person. See Price v. Harwood, 3 Campb. 108. So, too, where the right person is ar- rested, but the warrant describes him by the wrong name. Scott v. Ely, 4 Wend. 555; Gurnsey v. Lovell, 9 Wend. 319. At common law trespass, not case, lay for false imprisonment. Accordingly, liability proceeded, not on the theory of evil motive or of negligence, but of acting at peril. Therefore, to entitle plain- tiff to recover, it is not necessary for him to allege or prove either malice or want of probable cause. Malice is material only so far as the question of damages is concerned. It is immaterial whether the detention be accomplished with or without legal process. Hale on Torts, 244, citing Cunningham v. East River El. Co., 17 N. Y. Supp. 372; Rosen v. Stein, 54 Hun, 179, 7 N. Y. Supp. 368; Hewitt v. Newburger, 66 Hun, 230, 20 N. Y. Supp. 913. Of malice as an element in false imprisonment, the court, in Stevens v. O’Neill, 51 App. Div. 366, 64 N. Y. Supp. 663, 98 St. Rep. 663, says: “ The law imputes malice to an unlawful act. There is undoubtedly a difference between malice which the law infers from the act itself, and malice which is the product of a proved mental operation. The court had the right to submit the FALSE IMPRISONMENT. 555 Art, 3. Elements of the Wrong. question of malice in this case. From the very grossness of the act itself, malice may be inferred.” Where the defendant’s servants caused the plaintiff to be searched on the suspicion that she had stolen a watch,— Held, that the jury might infer legal malice from the occurrence, and, where the act was done in pursuance of a system adopted in the defend- ant’s store, that punitive damages might be awarded, although there was no evidence of express malice. Stevens v. O’ Neill, 51 App. Div. 364, 98 St. Rep. 663, 64 N. Y. Supp. 663. On this point the Court of Appeals says “ that malicious mo- tives and the absence of probable cause do not give to a party an action for false imprisonment. They may aggravate his damage, but have nothing to do with the cause of action.” Marks v. Townsend, 97 N. Y. 597. It was held in Perry v. Sutley, 45 St. Rep. 61, 18 N. Y. Supp. 633, that where probable cause is not proved, malice may be in- ferred. In Hewitt v. Newberger, 66 Hun, 231, 48 St. Rep. 811, 20 N. Y. Supp. 913, the court said: “ Evidence offered to prove malice was properly rejected. Malice is not an element of false imprisonment.” Citing 7 Am. & Eng. Encye. of Law, 664. But note that it may bear upon the question of damage, supra. In false imprisonment the want of probable cause must be shown, and malice need not be proven except upon the question of damages. Thorp v. Carvalho, 14 Misc. Rep. 554, 36 N. Y. Supp. 1, 70 St. Rep. 760. (The statement is open to criticism.) The motive of the defendant is a proper subject for investiga- tion to enable the jury to pass upon the question of exemplary damages. Fuller v. Redding, 16 Misc. Rep. 634, 39 N. Y. Supp. 109. The gist of the offense is unlawful imprisonment, and aver- ments of malice and want of probable cause are merely matters in aggravation of damages. Ackroyd v. Ackroyd, 3 Daly, 38. Where the facts alone establish want of probable cause malice will be inferred. Rosekranz v. Haas, 1 Misc. Rep. 220, 49 St. Rep. 222, 20 N. Y. Supp. 880. The gist of the action for false imprisonment is unlawful de- tention, and motive will be inferred, so far at least as to sustain the action ; and evidence to disprove actual motive only bears upon the question of damages. Burns v. Erben, 40 N. Y. 466. ° 556 FALSE IMPRISONMENT. Art. 3. Elements of the Wrong. Malice is not an essential element of false imprisonment. Lim- beck v. Gerry, 15 Misc. Rep. 663, 39 N. Y. Supp. 95. In Craven v. Bloomingdale, 30 Misc. Rep. 650, 64 N. Y. Supp. 262, affirmed 54 App. Div. 266, the rule was apphed that puni- tive damages may be recovered if the arrest was wanton or op- pressive and in open disregard of the plaintifi’s right to personal liberty. It may then be said that malice has been shown — not malice in its ordinary sense, but legal malice, which is sufficient to support a claim for punitive damages. Reversed 171 N. Y. 439. SUBDIVISION 2. Probable Cause. As to the necessity of showing want of probable cause there are statements pro and con in the decisions. On this point see cases digested under “ Malice,” supra, as well as the following: It seems, from Stevens v. O'Neill, 51 App. Div. 364, 64 N. Y. Supp. 663, 98 St. Rep. 663, that it was an error for the court to charge that it was incumbent upon the plaintiff to prove that there was an absence of probable cause for her detention; but the error if any, is not available to the defendant as a ground for a new trial. But in Perry v. Sutley, 45 St. Rep. 61, 18 N. Y. Supp. 633, it was held that, under the facts, the question of probable cause should have been submitted to the jury. The court said: “ There must be want of probable cause and malice. But, if the former is established, the latter may be inferred therefrom.” Citing Murray v. Long, 1 Wend. 140; Hall v. Suydam, 6 Barb. 83; Wanser v. Wyckoff, 9 Hun, 178. The question of probable cause is not involved in an action for false imprisonment. Myers v. Clark, 41 N. Y. Super. (J. & 8.) 107, citing 40 N. Y. 463. Want of probable cause must be proven in an action for false imprisonment, and a discharge of the plaintiff by a police officer is prima facie evidence of want of probable cause and sufficient to throw the burden upon the defendant to prove the contrary. Rosekranz v. Haas, 1 Misc. Rep. 220, 49 St. Rep. 222, 20 N. Y. Supp. 880. Probable cause or a reasonable ground for suspicion against the plaintiff afford no justification for an arrest and imprison- ment, unless a felony has been actually committed, in which case FALSE IMPRISONMENT. 557 Art. 3. Elements of the Wrong. the burden of proving that a felony has been committed and the facts relied upon to sustain probable cause or reasonable ground for suspicion is upon defendant. Burns v. Hrben, 40 N. Y. 466. Probable cause was thus defined in Lambeck v. Gerry, 15 Mise. Rep. 668, 39 N. Y. Supp. 95: “ Probable cause is reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that the per- son arrested is guilty of the offense with which he is charged. It does not depend upon the guilt or innocence of the accused, or upon the fact that a crime has been committed. The person mak- ing the criminal accusation may act upon appearances, and, if the apparent facts are such that a discreet and prudent person would be urged to the belief that a crime had been committed by the person charged, he will be justified, although it turns out that he was deceived and that the party accused was innocent. * * * But mere suspicion, unwarranted by the conduct of the accused, or by facts known to the accuser when the accusation was made, will not exempt the latter from liability to the innocent person for damages caused by his arrest.” Failure to prosecute after arrest is insufficient to show want of probable cause in making the arrest. Where the facts are not dis- puted, the fact of probable cause is for the court. O’Dell v. Hat- field, 40 Misc. Rep. 13, 81 N. Y. Supp. 158. Probable cause is the existence of such facts and circumstances as would incite the belief of a reasonable man, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. Thorp v. Carvalho, 14 Mise. Rep. 558, 36 N. Y. Supp. 1, 70 St. Rep. 760, citing 14 Am. & Eng. Encye. of Law, 24. But where there is no dispute as to the facts, the question of probable cause, or the absence or want of probable cause, is for the court. Thorp v. Carvalho, 14 Misc. Rep. 558, 36 N. Y. Supp. 1, citing Anderson v. How, 116 N. Y. 336-338. Note that the latter case also involved malicious prosecution. The question of probable cause is a question of law where the facts are not in dispute. But where the facts are controverted, and there is a conflict of evidence, or where the credibility of witnesses is to be passed upon, then it is a question for the jury under proper instruction. Thompson v. Fisk, 50 App. Div. 72, 63 N. Y. Supp. 352, 97 St. Rep. 352, citing Fagnan v. Knox, 66 N. Y. 525; Anderson v. How, 116 N. Y. 336. 558 FALSE IMPRISONMENT. Art. 3. Elements of the Wrong. If an arrest or imprisonment is charged or procured upon a charge made to some public authority, no action for false imprison- ment will lie against the person who made the charge upon a mere ground that the charge was false. » Pease v. Frewald, 39 Mise. Rep. 549, 80 N. Y. Supp. 402, citing Cousins v. Swords, 14 App. Div. 338, affirmed, 162 N. Y. 625, on opinion below, which holds, upon the authority of Thaule v. Krekeler, 81 N. Y. 428, that, to sustain an action for malicious prosecution, it is necessary that the plaintiff should allege and prove that there was no probable cause for the prosecution, and that it was instituted through malice. SUBDIVISION 3. Detention is Necessary. It is imprisonment to stop and prevent one from going along a highway by threats. Bloomer v. State, 3 Sneed (Tenn.), 66. Thus it was said: “If you put your hand upon a man and tell him he must go with you, supposing you have the right and power to compel him, that is an arrest.” Wood v. Lane, 6 Car. & P. 774; Whitehead v. Keyes, 3 Allen, 403; Lansing v. Case, 4 N. Y. Leg. Obs. 221; Searles v. Viets, 2 T. & C. 224. But a partial restraint of the will of a person is not sufficient. The imprisonment is more than a mere loss of power to go wher- ever one pleases; it includes the notion of restraint within some limits defined by a will or power exterior to our own. A prison must have a boundary, and that boundary the party imprisoned must be prevented from passing; he must be prevented from leav- ing that place, within the bounds of which the party imprisoning would confine him, except by prison breach. And where the plain- tiff attempted to pass in a particular direction, but was prevented by the defendant from going in any direction but one, not being that in which he had endeavored to pass, this was held to be no imprisonment. Bird v. Jones, 7 Q. B. 748. So, where A. had a chamber adjoining the chamber of B., which had a door opening into it, by which there is an exit, and A. has another door which C. stops, so that A. cannot go out by that, there is no imprisonment of A. by C., because A. may go out by the door in the chamber of B., though he be a trespasser by doing it. Wright v. Wilson, 1 Ld. Raym. 739. Restraint is necessary, and, therefore, where a person remains in the jail liberties after having been discharged on supersedeas FALSE IMPRISONMENT. 559 Art. 3. Elements: of the Wrong. under the mistaken idea that a formal discharge is requisite, he has no action for false imprisonment. Warne v. Constant, 4 Johns. 32. ° It seems that if an order is made that a commitment issue, which order directs the sheriff to rearrest the plaintiff, but no such warrant is ever served, and no new arrest is ever made, there is no imprisonment, and it is no answer that the plaintiff thought he was coerced, and believed he was in the custody and under the necessity of obeying an order of the court, and so was under a sort of compulsion, where he, through his attorney, is denying the jurisdiction of the court and insisting that its order is illegal. Dusenbury v. Keiley, 85 N. Y. 389. Where plaintiff was arrested by a private person who claimed that the plaintiff had committed a misdemeanor, and who himself took the plaintiff to the police station, it was held that the ques- tion as to whether the plaintiff went with the defendant voluntarily was a question for the jury. Crumeill v. Hill, 2 City Ct. 236. SUBDIVISION 4. Physical Compulsion not Necessary. Physical contact is not necessarye Thus, if a bailiff who has a process against any one says, “ You are my prisoner; we have a writ against you,” upon which the person addressed submits, turns bask and goes with him, though the bailiff never touched him, yet it is an arrest. 2 Addison on Torts, 697 (Dudley ed.), citing Granger v. Hill, 4 Bing. N. C. 212; Jones v. Jones, 13 Ired. 448. The manual touching of the body or actual arrest is not neces- sary to constitute an arrest and imprisonment. It is sufficient if the party be within the power of the person and submits to arrest. Gold v. Bissell, 1 Wend. 210. It is sufficient arrest if the party, on being informed that an officer has a warrant for him, submits to such officer’s control. Van Voorhes v. Leonard, 1 T. & C. 148. Where an officer told the plaintiff he had a warrant for him for stealing, but allowed him to go home, and they subsequently ap- peared before a justice, who dismissed the complaint, it was held that there had been a sufficient arrest to maintain action for false imprisonment. Searles v. Viets, 2 T. & C. 224. : The fact that an officer goes in the presence of the plaintiff and inquires about stolen property, and shows him his shield, and 560 FALSE IMPRISONMENT. Art. 3. Elements of the Wrong. tells him to come along with him to defendant’s store, is an arrest. Callahan v. Searles, 78 Hun, 238, 60 St. Rep. 214, 28 N. Y. Supp. 904. The actual laying on of hands, or personal violence, is not neces- sary to constitute an arrest. It is simply necessary that the ar- rested party be within the control of the officer or other person making the arrest, and submit himself to such control, in conse- quence of some claim of right to make the arrest, or authority to make it, by such officer or other person. Any deprivation of the liberty of another without his consent, whether by actual violence, or threats, or duress, constitutes an imprisonment. Limbeck vy. Gerry, 15 Misc. Rep. 663, 39 N. Y. Supp. 95. In an action for false imprisonment, arising from a searcn made of a woman who was accused of stealing a watch, it was held, in a case where it was claimed by the defendant that the plaintiff wished to be searched in order to clear herself of the charge, that a jury may properly find that the defendant’s em- ployees exercised restraint upon the plaintiff; that the latter did not willingly submit to the search, and that, under the circum- stances, she was not required to offer physical resistance to the attempt to search her. The court said: “ It seems to us, when we consider the situation of the plaintiff, that she was in the store of the defendant, surrounded by persons employed by the defendant, substantially accused of being a thief; and with a statement made to her, ‘ You will have to be searched ;’ that this was the exercise of such a dominion over her that a jury might very properly find that restraint was exercised.” Stevens v. O'Neill, 51 App. Div. 364, 64 N. Y. Supp. 663, 98 St. Rep. 663. It seems to be a general principle that the extent of restraint is immaterial. Thus, a defendant was held liable for the act of its servant in placing his hand upon a woman upon charge of passing counterfeit money, calling her a counterfeiter and a common pros- titute, and telling her not to stir until he had procured a police- man, although he subsequently let her go, failing to find such an officer. Palmeri v. Manhattan El. Ry. Co., 183 N. Y. 261. SUBDIVISION 5. Place of Detention is Immaterial. As a general rule, the place of restraint is immaterial. It is not ‘necessary that he be imprisoned within a jail, for it is imprison- FALSE IMPRISONMENT. 561 Art. 3. Elements of the Wrong. ment if restraint be placed upon him in his own house or upon the highway, or in an open field. 1 Lib. Assis. (Year Book 22 Edw. III), p. 104. It is none the less imprisonment, even though the plaintiff had not the power of locomotion before the imprisonment. For exam- ple, where the plaintiff, who was then sick in bed, was compelled by threats of imprisonment to give up some article, which he did, this was held to be imprisonment. See Granger v. Hill, 4 Bing. N. C. 212. The place of detention is immaterial. Thus, says Blackstone, every confinement of the person is imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets. 3 Bl. Comm. 127. But a mere physical retraint in one direction is not an impris- onment where there are means of escape. Thus, in Bird v. Jones, 7 Q. B. 747, where two policemen prevented plaintiff from con- tinuing his way on the footway of a bridge, but told him he might go back if he pleased, which the plaintiff refused to do, it was held that there was no imprisonment. r It is no justification to an action for false imprisonment against the officers of a bank that a person imprisoned remained in the office after the usual time of closing, and was detained there by the locking of the door, although he knew the hour at which the bank was usually closed. Woodward v. Washburn, 3 Den. 369. SUBDIVISION 6. Detention Must be against Will of Plaintiff. To constitute false imprisonment it is necessary that the plaintiff should know of the imprisonment. Thus it was held that a scholar, who was detained by the master, could not recover for false imprisonment where it was shown that he did not know of the restraint upon his person. Herring v. Boyle, 1 Cromp., M. & R. 377. “The act relied upon as an arrest must have been intended as such and so understood by the party arrested, or there is no im- prisonment. * * * If the plaintiff goes voluntarily with the person making the arrest, there is no arrest. * * * Visiting a police station with an officer to make a statement does not con- stitute an arrest.” Charge of the court in Limbeck v. Gerry, 15 Mise. Rep. 663, 39 N. Y. Supp. 95. 36 562 FALSE IMPRISONMENT. Art. 3. Elements of the Wrong. Although a person is arrested upon a void warrant, he does not lose his right of action for false imprisonment by pleading not guilty before the magistrate, and consenting to adjournment with- out raising objection to the validity of the warrant and the regu- larity of the proceedings. Blythe v. Tompkins, 2 Abb. Pr. 468. The principle that, in order to constitute an arrest, the plaintiff must have actually, either by force or coercion, submitted to such arrest, is illustrated in the case of Dusenbury v. Keiley, 85 N. Y. 383, in which case the plaintiff had been arrested under the Still- well Act, which warrant was subsequently vacated and the plain- tiff discharged from custody. In a subsequent proceeding by cer- tiorari, the order was reversed and the proceeding was revived and restored, and an order was made for the rearrest of the plain- tiff, and to commit him to jail, which warrant was never served, and no new arrest was made. It was held that a new trespass was not committed, and the contention that the plaintiff thought he was coerced, and that it was necessary to obey the order of the court, and so was under a sort of compulsion, was not sound, in the case of one who, through his attorney, is denying the jurisdic- tion of the court and insists that its orders are illegal. The court cites Warne v. Constant, 4 Johns. 32, where a prisoner stayed on the jail liberties after a supersedeas, under a mistaken idea that his liberty was not regained until a formal discharge by the sheriff, and for that cause brought an action of false imprisonment. It was held that his detention was his own act, and it mattered not that he was mistaken as to his right. SUBDIVISION 7. Detention Originally Lawful May Become Unlawful. If a private person arrests another committing or attempting to commit a crime or misdemeanor, though the arrest may be law- ful, he must take the person before a magistrate without unneces- sary delay, as required by section 185, Code of Criminal Pro- cedure. Tobin v. Bell, 73 App. Div. 41, 76 N. Y. Supp. 425, 110 St. Rep. 425. Where a person is arrested by an officer without warrant in a case where he should be immediately and without delay taken be- fore the nearest magistrate, a superintendent of police who, with- out process, directs his imprisonment for several days is liable for false imprisonment. Greene v. Kennedy, 46 Barb. 16, 48 N. Y. 653. or o> ow FALSE IMPRISONMENT. Art. 3. Elements of the Wrong. Failure to take a prisoner before the court or magistrate without unnecessary delay makes an officer a trespasser ab initio, and liable for false imprisonment. So held where the defendant arrested plaintiff on Friday, without a warrant, and took him to the court- room, but did not call the attention of the magistrate to the case, and thereafter detained him, without direction of the magistrate, until the following Monday, when he was discharged. Pastor v. Regan, 9 Misc. Rep. 547, 60 St. Rep. 204, 30 N. Y. Supp. 657, citing the case of Tubbs v. Tukey, 3 Cush. 438, where it was held that a person who abuses his scuthoritecbeaomes a trespasser ab initio, as where an arrest is originally lawful, but the subsequent detention is illegal and unreasonable. Keeping one suspected in confinement for an unreasonable time, without taking him before a magistrate, may be false imprison- ment. See Hopner v. McGowan, 116 N. Y. 405. See Nowak v. Waller, 31 St. Rep. 458, 10 N. Y. Supp. 199,: where it was held that a magistrate having jurisdiction was not liable for false imprisonment for failing to take an examination of the plaintiff and his witnesses and reducing it to writing. And that the party arrested cannot, for his own convenience, make a stipulation to appear at a future day and receive parole, and then complain that he was not immediately taken before a magistrate. Where an arrest was made by a detective employed by a rail- road corporation under circumstances showing good faith in the officer, and a warranted suspicion that the person was either a criminal or contemplated the commission of a crime, it was held that the company was not liable for damages caused by the action of the police sergeant or police justice in detaining the person ar- rested, unless the officer making the arrest requests that it be done. Newman v. N. Y., L. BE. & W. RB. RB. Co., 54 Hun, 335, 27 St. Rep. 135, 7 N. Y. Supp. 560. In Reynolds v. Corp, 3 Cai. 267, it was said that where a de- fendant has been liberated from confinement for want of being charged on execution, trespass will not lie against the plaintiff and his attorney, for imprisoning him a second time, on an execution issued upon the old judgment in the suit from which he was dis- charged, the process being only voidable. As to the modern rule, see Dusenbury v. Keiley, 85 N. Y. 383. Where a person has been lawfully arrested on a criminal war- rant, and is subsequently discharged from arrest on entering a 564 FALSE IMPRISONMENT. _Art. 3. Elements of the ‘Wrong. 7 recognizance, the warrant has spent itself, sad an officer cannot arrest him again without new process. Doyle v. Russell, 30 Barb. 300. An insolvent’s discharge under the Two-thirds Act extinguishes an existing judgment against a debtor for tort, and, therefore, if he is subsequently arrested upon such judgment the party making the arrest, as well as the attorney, are liable for false imprison- ment, whether they were notified of the discharge or not, though want of notice of discharge goes in mitigation of damages. Deyo v. Van Valkenburg, 5 Hill, 242. A sheriff who received from the attorney for a judgment creditor an order of discharge from arrest of the judgment debtor, and failed to make objection to the order and did not return it but failed, nevertheless, to act upon it, and rearrested the judgment debtor, who sued out an appeal, was held liable for false impris- onment. Davis v. Bowe, 118 N. Y. 55, 27 St. Rep. 862, affirm- ing 3 St. Rep. 531. In Holley v. Miz, 3 Wend. 351, it was held that false imprison- ment will lie against an officer and a complainant in a criminal prosecution where they combined to extort money from a party accused, by operating upon his fears, although such party be in the custody of an officer on a valid warrant issued on a charge of felony. In a note to this case it is stated that one who abuses an authority in fact thereby becomes a trespasser ab initio, but otherwise if he abuses an authority in law. Van Brunt v. Schenck, 13 Johns. 414; Allen v. Crofoot, 5 Wend. 506; Dumont v. Smith, 4 Den. 319; Carnick v. Myers, 14 Barb. 9. For the statutory penalty to which a sheriff or jailer is liable for refusing to discharge a prisoner in certain cases, who has been arrested on an execution issued by a justice of the peace, see Code Civ. Proc., § 3035. SUBDIVISION 8. Termination of Detention — When Necessary. The rule in regard to the necessity for the termination of the criminal proceedings upon which an action is founded is thus stated in Cumff v. Beecher, 84 Hun, 140, 32 N. Y. Supp. 1067: “Tt is the law of the State that a party cannot maintain a civil action for damages for malicious prosecution or false imprison- ment where his arrest has been followéd by conviction in a crim- inal court and that conviction remains unreversed, unless he FALSE IMPRISONMENT. 565 Art. 3. Elements of the Wrong. 7 shows the fact that his conviction was obtained by fraud or conspi- racy, and that fraud or conspiracy must be one in which the court and the person whom he proceeded against participated. * * * The person who is, or who believes himself to have been, unjustly arrested and convicted, must procure a reversal of such judgment before he can maintain a civil action for damages.” ‘Citing Rob- bins v. Robbins, 183 N. Y. 597; Oppenheimer v. Manhattan Ry. Co., 18 N. Y. Supp. 411. The principle that there must be a termination of the prosecu- tion in order to sustain an action for false imprisonment is illus- trated in Atwood v. Beirne, 73 Hun, 547, 26 N. Y. Supp. 149, 59 St. Rep. 264. In that case two cross-complaints for assault and battery were made and one complaint for larceny. One of the assault cases was tried three times before a verdict was reached, and the parties, their counsel, and the justice, being tired of the proceeding, agreed that the parties should be absent from court on the day to which the proceedings were adjourned and each com- plaint thus fell for want of prosecution. It was held that it was not such a termination of proceedings as would sustain an action for false imprisonment. The disposition of the matter was judicious and creditable to all concerned, but it was not such a termination of the prosecution as would sustain an action. In principle it was a compromise or an abandonment of the proceed- ings by mutual consent, and no real determination has been had. On that ground the plaintiff’s case fails. It was held, however, by the Court of Appeals, in Fay v. O’Neill, 36 N. Y. 11, that for the purposes of an action of false imprisonment the abandonment of the charge and discontinuance of the prosecution is equivalent to a discharge from the accusa- tion. The court said: “It was sufficiently shown that the prose- cution was at an end. The complaint was dismissed by the magis- trate in consequence of the complainant not appearing to prose- cute at the time to which the case was adjourned. This was a sufficient termination of the prosecution.” Citing Clark v. Cleve- land, 6 Hill, 844; Secor v. Babcock, 2 Johns. 203; Purcell v. MacNamara, 9 East, 361; Burhans v. Sanford, 19 Wend. 417; Watkins v. Lee, 5 Mees. & Wels. 270. Where a party is relieved from body execution issued on a judgment previously paid or discharged, the court cannot stipu- late that he shall not bring an action for false imprisonment on 566 FALSE IMPRISONMENT. Art. 3. Elements of the Wrong. granting relief from arrest. But if the party is to be relieved from arrest because of mere irregularity the court may require such a stipulation as a condition. Deyo v. Van Valkenburg, 5 Hill, 249. Where the plaintiff has been illegally arrested by virtue of a body execution issued on a judgment for costs, which order was set aside, the plaintiff thereupon bringing an action for false im- prisonment, it was held, on a motion by defendant to have the order setting aside the arrest modified so as to impose upon. the plaintiff the condition that he should not bring an action for false imprisonment, that such a condition could not be imposed. Cat- lin v. Adirondack Ry. Co., 22 Hun, 493. Where a process is void absolutely, no preliminary proceedings to vacate or set aside are necessary as a condition to the mainte- nance of the action for false imprisonment. But where the court has jurisdiction and the process is merely irregular by reason of the nonperformance of a preliminary requirement, or the ex- istence of a fact not disclosed in the application therefor, such process must be regularly vacated and annulled before the action of false imprisonment can be maintained. Fischer v. Langbein, 103 N. Y. 89. It seems that where a warrant of arrest has been issued upon insufficient affidavit, an action against the party instigating the imprisonment may be sustained even without traversing the pro- eeedings upon certiorari. Freedenburg v. Hendricks, 17 Barb. 183, citing Prosser v. Secor, 5 Barb. 607. It was held in the Court of Appeals, in an action which joined malicious prosecution and false imprisonment in one complaint, that in the action for malicious prosecution a final judgment on trial so far terminates the proceeding that the defendant may sue for malicious prosecution. The fact that an appeal from the judg- ment is pending when the action is commenced simply places the risk upon him of an adverse decision upon appeal which will de feat his action. Jarks v. Townsend, 97 N. Y. 59%. In Deyo v. Van Valkenburg, 5 Hill, 242, it was held that one arrested on a judgment in tort, which had been paid or otherwise discharged, need not obtain a rule setting aside the process in order to maintain an action for false imprisonment. Contra, where the action is founded upon a mere irregularity in issuing the process, FALSE IMPRISONMENT. 567 Art. 4. Arrest Without Process. It is held that where a party has been arrested on a warrant and brought before a justice of the peace charged with the crime of larceny, and the hearing is adjourned, that the action of a spe- cial county judge in discharging the prisoner on habeas corpus instituted before him on the adjourned day, and before any fur- ther proceedings before the justice, the writ of habeas corpus not running to the constable, and he not being present on the pro- ceedings, that it did not operate to end the criminal proceedings, although the justice of the peace took no further action in the matter. Vorce v. Oppenheim, 37 App. Div. 69, 55 N. Y. Supp. 596. ; An arrest, not alleged to have been malicious, made under exe- cution of justice’s judgment for a penalty, does not create a lia- bility for false imprisonment, because the act giving the penalty was not applicable, if the judgment remains unreversed. Haley v. Connell, 17 Week. Dig. 21. The abandonment of a criminal charge and discontinuance of the prosecution before a magistrate is equivalent to a discharge from the action, and operates as a termination of the proceeding. Warren v. Dennett, 17 Misc. Rep. 88, 39 N. Y. Supp. 830, citing Fay v. O'Neill, 36 N. Y. 18. See Hopner v. McGowan, 116 N. Y. 405, for a case where the court held that in the particular action for false imprisonment the termination of the criminal proceedings against the plaintiff had no importance although such a fact is essential in an action for malicious prosecution. ARTICLE IV. ARREST WITHOUT PROCESS. PAGE. Susprvision 1. Arrest by private person ..........+---6+ 567 2. Arrest by police officer .........--.-0- 08 570 3. Arrest by officer on complaint of private POETSON! cad Has enw wae Gee aie ween es 573 SUBDIVISION 1. Arrest by Private Person. The eases in which a private person may arrest another are thus stated in section 183, Code of Criminal Procedure: (1) For a crime committed or attempted in his presence; (2) When the 568 FALSE IMPRISONMENT. Art. 4. Arrest Without Process. person arrested has committed a felony, although not in his presence. : Note that section 184, Code of Criminal Procedure, requires such private person to inform the party arrested of the cause thereof, except when he is in the actual commission of the crime, or when he is arrested on pursuit immediately after its commis- sion. Section 185 requires that the person making such an arrest shall take the party accused before a magistrate or deliver him to a police officer without unnecessary delay. In regard to an arrest by a private person without warrant where an affray has been committed, the rule is thus stated in Phillips v. Trull, 11 Johns. 486: All persons whatever, who are present when a felony is committed, or a dangerous wound is given, are bound to apprehend the offenders. So any person what- ever, if an affray be made, to the breach of the peace, may, without a warrant from a magistrate, restrain any of the offenders in order tu preserve the peace, but after there is an end of the affray, they cannot be arrested without a warrant.” Adopting the statement in 8 Hawk. P. C. 174, b. 2, s. 20, as follows: “It seems clear, that regularly, no private person can, of his own authority, arrest another for a bare breach of the peace after it is over.” The arrest of a felon may be justified by any person without a warrant whether there was time to obtain a warrant or not, if a felony has in fact been committed by the person arrested. Thus, if an innocent person is arrested upon suspicion by a private indi- vidual, the person making the arrest is excused if a felony: was, in fact, committed, and there was reasonable ground to suspect the person arrested had committed it. But if no felony has been committed and a private individual arrests without a warrant, such arrest is illegal. An officer, however, would, in such a case, be justified if he acted upon information from another, which he had reason to rely upon. Holley v. Mix, 3 Wend. 351. Ordinarily no person can be arrested without a warrant. But if a felony or breach of the peace is committed by the person arrested, the person making the arrest may justify it without a warrant, whether there was time to procure a warrant or not; yet if an innocent person be arrested upon suspicion by a private in- dividual, such individual is not excused unless such offense has, in fact, been committed, and there was reasonable ground to sus- FALSE IMPRISONMENT. 569 Art. 4. Arrest Without Process. pect the person arrested. Limbeck v. Gerry, 15 Misc. Rep. 663, 39 N. Y. Supp. 95.- A private person detecting another in the act of committing, or attempting to commit, a crime or even a misdemeanor may lawfully arrest him. But to justify the arrest he must immediately take the person before a magistrate without unnecessary delay as required by section 185 of the Code of Criminal Procedure. Tobin v. Bell, 73 App. Div. 41, 76 N. Y. Supp. 425, 110 St. Rep. 425, citing Code Crim. Proc., § 183; Greater N. Y. Athletic Club - v. Wurster, 19 Misc. "Rep. 443 (450), 43 N. Y. Supp. 703. Where the defendant personally arrested and detained plaintiff in a police box until a police wagon came to take her to the station- house, charging her with kicking over his barrel, it was held that he was liable for false imprisonment. On the trial it appeared that some boys had knocked over the barrel. The court said:: “No crime was proven against the plaintiff and none was commit- ted by her. The defendant had no right to arrest her without a warrant. § 183 of Code Crim. Proc.” Ball v. Harrigan, 47 St. Rep. 384, 19 N. Y. Supp. 919. In regard to an arrest by a private individual the rule as to liability was thus stated in Burns v. Erben, 40 N. Y. 463: “ Asa general principle no person can be arrested or taken into custody without a warrant. But if a felony or breach of the peace has in fact been committed by the person arrested, the arrest may be justified by any person without warrant, whether there was time te procure a warrant or not; but if an innocent person be arrested upon suspicion by a private individual, such individual is not ex- cused unless such offense has, in fact, been committed, and there was reasonable ground to suspect the person arrested.” Carl v. Ayres, 58 N. Y. 17, thus states the rule governing the arrest by a private person without warrant: “A person making a criminal accusation may act upon appearances, and if the ap- parent facts are such that a discreet and prudent person would be led to the belief that a crime had been committed by the person charged, he will be justified, although it turns out that he was deceived and that the party accused was innocent. Public policy requires that a person shall be protected, who in good faith and upon reasonable grounds causes an arrest upon a criminal charge, and the law will not subject him to liability therefor. But a ground- less suspicion, unwarranted by the conduct of the accused, or by 570 FALE IMPEI“ON MENT. Art, 4, Arrest Without Process. facts known to the accuser, when the accusation is made, will not exempt the latter from liability to an innocent person for damages for causing his arrest. A man has no right to put the criminal law in motion against another and deprive him of bis liberty upon mere conjecture that he has been guilty of a crime.” Andrews, Ch. J., in Farnam v. Feeley, 56 N. ¥. 451, says: “To justify a private person in arresting or aiding in the arrest of another without a warrant on a criminal charge, it must ap- pear that a felony had been committed, and that he acted cireum- ipess ape meen eroenae we rome ee ee ean person in believing the person arrested was guilty pee The burden is upon him to show, when sued for the iz made to appear he is not liable, although the aecused was, in ‘fact, innocent.” See Addison on Torts, 555; Holley v. Miz, 3 Wend. 254; Brackett v. Eastman, 17 Wend. 22; Uarl v. Eyres, 53 N. Y. 14; Holroyd v. Doncaster, 11 Moore, 440. In Frost v. Pinkerton, 61 App. Div. 566, 70 SN. Y. Supp. 892, 104 St. Rep. 892, where the plaintiff was arrested and assaulted for dandestinely transmitting information in regard to races from the Jockey Club grounds, which was a violation of the of the raceesurse, the court said: “Pinkerton and his foree were Private citizens; the plaintiff was nt engaged in the commission of a misdemeanor, but at mst only a violation of a rule or regula tion of the raceosurse. There was no right, therefore, to arres: the plaintiff.” * * * Bail may arrest their principal at any time or place, or may delegate the power to anther to do w. Harp v. Osgood, 2 Hill, 216; Nicolls +. Ingersoll, 7 Icons. 146-152. The liability of Private persons 2s complainants where the arrest is made by an Siscer, with or without process, will he found. ~ Arrest by officer on complaint of private person,” subd. 3, post. SUBDIVISION 2. Asses by Police Olices. ee plas: oye been committed, and there is reasmable ground to suspect the persom arrested of its commission, yet 2 constable is ae in making an arrest without a warrant although no fdlony im fact been committed if be bas reasonable ground t eur FALSE IMPRISONMENT. f 571 Art. 4. Arrest Without Process. pect that one has been committed, and acts in good faith and with- out evil design. Burns v. Erven, 40 N. Y. 463. The same principle was applied in Newman v. N. Y., L. HE. & W. R. R. Co., 54 Hun, 335, 27 St. Rep. 135, 7 N. Y. Supp. 560, where it was held that if the appearance of the person arrested and the circumstances were such as to justify a careful conclusion on the part of the officer that the plaintiff had either committed a fel- ony or was about to commit a felony, he was excused for making the arrest, although it might turn out thereafter that the suspicion was unfounded. Where a person is arrested without a warrant he must “ imme- diately and without delay ” be taken before the nearest magistrate, and a superintendent of police must govern his officers accordingly and he is liable for false imprisonment if he directs the imprison- ment of such a person arbitrarily and without process of law for several days. Greene v. Kennedy, 46 Barb. 16, affirmed without opinion, 48 N. Y. 653. Where the offense on which the plaintiff was arrested is a mis- demeanor, not committed in the officer’s presence, an arrest with- cut warrant is illegal, and renders the officer making it liable for false imprisonment. Kolzen v. Broadway, etc., Ry. Co., 1 Mise. Rep. 148, 48 St. Rep. 656, 20 N. Y. Supp. 700. An officer of a society for prevention of cruelty to animals acting under Laws of 1867, chap. 375, has authority to arrest offenders violating that act, without first obtaining a warrant. It seems that where a warrant is first obtained the person executing it will be protected whether the person arrested is innocent or guilty, and if the statute alone is relied upon by the person making the arrest he is only protected by showing that the person arrested was violating the law. Davis v. American Society, etc., 75 N. Y. 362, affirming 6 Daly, 81. A police officer arresting without a warrant or reasonable cause on ground of felony cannot justify such arrest where the person is innocent of the felony by reason of the fact that he was subse- quently arraigned and convicted of a misdemeanor of which the officer had no knowledge at the time of the arrest. An officer who arrests a person without a warrant upon a sus- Ppicion of felony, to wit, having stolen goods, cannot subsequently justify the arrest upon the ground that the plaintiff committed a misdemeanor in that he carried concealed weapons. Snead v. Bon- 572 . FALSE IMPRISONMENT. Art, 4. Arrest Without Process, noil, 49 App. Div. 820, 97 St. Rep. 553, 63 N. Y. Supp. 653, af- firmed, 166 N. Y. 325. The court said: “ There can be no general right to arrest a citi- zen for an undisclosed offense. The statute requires the officer to inform the arrested person of his authority and the cause of the arrest, except when the person arrested is in the actual commission ofacrime. ~ % % Where there is no overt act of criminality, or visible offense committed in the immediate presence of the off- cer, he must inform the arrested person of the cause of the arrest. He cannot arrest a man for one cause and, when that is exploded, justify for another, An arrest can be made under section 177 of the Code of Criminal Procedure by a peace officer without a warrant only when a crime has been committed or attempted in his presence or where the pereon arrested has committed a felony although not in his presence, or where the felony has, in fact, been committed and the officer making the arrest reasonably believes him to have committed it. People v. Hochsteim, 76 App. Div. 25 (28), Where a police officer, without a warrant, and at the instigation of the defendant, arrests the plaintiff, in a case where a felony had in fact been committed, and where the question as to reason- able cause is in controversy, the liability of the defendant depends upon whether the arrest by the police officer was founded upon reasonable cause, and that, under the circumstances, this was a question of fact for the jury; that it was error for the court to decide as a matter of law that such officer did not have reasonable grounds for the arrest. Thompson v. Fisk, 50 App. Div. 72, 63 N.Y. Supp. 352, 97 St. Rep. 252, citing Code Crim. Proe., § 177. ‘ If an officer makes an arrest without warrant in a case where no such power is given him by law, he is liable to an action for false imprisonment, even though the party were guilty of the ffense charged. Myers v. Clark, 9 3. & &. 107. Where a judgment upon which a party has been arrested is paid and discharged, and the sheriff receives without objection an order from the creditor's attorney ordering a discharge of the debtor, who at that time is ont on bail, the sheriff is liable for false im- Lire aps airings rearreats the debtor. Such an order ischarge from creditor's attorney raises the presumption that it is duly authorized, and, while this presumption may not be conclusive upon the sheriff, it requires some action, upon bis FALSE IMPRISONMENT, 578 Art. 4, Arrost Without Process, part, either to return it or give notice that he requires something further. Tf he doos not raise such objection, he must act upon it as sufiiclont, Davis v. Bowe, 118 N. Y. 55, affirming 22 J, & S. 520, 8 Rep. 681. A policeman, going upon private property without a warrant or process, has no authority to determine the right to possession of personal property between adverse claimants, and if he uses force and takes possession of such property he is Hable. So held {n an action for false Imprisonment, where a police officer went to the apartments of the plaintiff to procure a trunk belonging to a former, boarder, and, upon the plaintiff refusing to give up the trunk, foretbly removed it, and, upon hor restating, arrested her for interfering with an officer in the discharge of his duty. Isaaca v, Flahive, 14 Mise. Rep. 249, 85 N. Y. Supp. 716, Whore an action is brought against a pollcaman, it 1s no defense that his euperlor officer ordered him to make tho arrest. Myers v. Clark, 41 N, ¥ Super, (J. & 8.) 107, In rogard to arrest withent a warrant, aco the case of Balbo v. Paople, 80 N. Y, 484, 400; alan, People ea ral. Kingsley v. Pratt, 92 TTun, 800; Niger v. Clark, 41 N. Y. Super. 107; Hennessey v. Qonnolly, 18 Hun, 1785 Sternach v. Brocka, 7 Daly, 142; Me- Intyre v. Radena, 46 N. Y. Super. (J. & 8.) 128, SUBDIVIBION 8. Arrest by Officer on Complaint of Private Person. The rule as to the lability of a private person, where another {s arrested by an officer, 1s stated thus in Brown v. Ohadasy, 30 Barb, 258, at 909; “ * * * If the defendant directed the offlcer to take the plaintif into custody, he was Hable to an actlou for false imprisonment, but {f he merely made his statement, leav- ing {¢ to tho officer to act or not, as he thought proper, he was not Mable to an action of trespass for the arrest.” Tt seems to be a gonoral prinelple that ono who causes the arrest of a person is not Hable for such damages an are caused by the actlon of 2 police sergeant or police justice in detaining a person arrested, unless ho 1a detained at tho request of the one making er proouring the arrest, Upon this principle, see Newman v. N. Yi L B. ad Ww, BR. R. 0o., 54 Flun, 985, v N, YY, Supp. 560, olting Lott v. Aehion, 18 L. J, Q. B, 76, where the court held that 574 FALSE IMPRISONMENT. Art. 4. Arrest Without Process. the defendant was not liable for damages caused by the detention of the plaintiff by the magistrate himself. Where the general manager of a restaurant caused the plaintiffs arrest for passing cashier’s desk without paying a check, it was held that the defendants were liable, even though the defendant had a rule posted that every one must stop at the cashier’s desk whether he had a check or not. This rule was not posted or dis- played so that customers could become aware of it. Dupre v. Childs, 52 App. Div. 306, 99 St. Rep. 179, 65 N. Y. Supp. 179, affirmed, on opinion below, 169 N. Y. 585. Where the defendants had left their house in charge of the plaintiff, a servant, with directions not to allow strangers to enter, and where, on returning, they discovered jewelry to be missing, and had a detective investigate, and where the plaintiff said she admitted a stranger to the house to repair the electric lights, and thereupon the: detective arrested her without warrant upon the in- stigation of the defendant,— Held, that, as a felony was com- mitted, plaintiffs arrest was legal under section 157 of the Code of Sriminal Procedure, and the detective had reasonable ground to believe defendant had committed the felony; that it was error for the court to decide, as a matter of law, that he did not have reason- able ground for that belief. Thompson v. Fisk, 50 App. Div. 71, 79 St. Rep. 352, 63 N. Y. Supp. 352. If the defendant merely complains to the police authorities of a robbery, and states various circumstances of suspicion to a police officer, and the latter makes inquiries concerning these circum- stances, the defendant is not liable. Limbeck v. Gerry, 15 Mise. Rep. 668, 39 N. Y. Supp. 95. A private person who directs a police officer to make an arrest, under circumstances not justifying the same, is responsible for the arrest. Dodge v. Alger, 53 N. Y. Super. 107. Thus, where the defendant sent for a police officer, and upon his arrival directed the arrest of the plaintiff for breach of the peace committed before the officer’s arrival, and the officer made the arrest without war- rant, it was held that the defendant directing the arrest was liable for false imprisonment, that the arrest was illegal, and that he and the officer were joint tort feasors. Wynn v. Hobson, 54 N. Y. Super. 330. A private person is liable, even though he does not distinctly order an officer to arrest plaintiff, if he subsequently ratifies such FALSE IMPRISONMENT. 575 Art. 5. Liability for Arrest on Void or Invalid Process. act. Callahan v. Searles, 78 Hun, 238, 60 St. Rep. 214, 28 N. Y. © Supp. 904. An officer will be justified in arresting a person without a war- rant if he acts upon information from another, which he has reason to rely upon. In trying the legality of the acts done by provost- marshals, and their deputies, in the exercise of their duty, great latitude should be allowed, a public duty being imposed upon them, for public purposes, and they being punishable for a neglect of duty, if they fail to act, in a case where there is sufficient or probable cause for acting. Hawley v. Butler, 54 Barb. 490. Where defendant had the plaintiff arrested without a warrant for obtaining property under false pretenses, it was held that he was liable for false imprisonment; that the obtaining of property under false pretenses where the owner, although induced by said false pretense, parts with the possession of them, intending to surrender title, the -act of the plaintiff was not larceny, and did not justify the arrest. Thorne v. Turck, 94 N. Y. 90, affirming 10 Daly, 329, and distinguishing Loomis v. People, 67 N. Y. 322. Where the manager of a restaurant caused the arrest of the plaintiff for having refused to pay the entire amount of his bill, preferring a charge of disorderly conduct against him, and where the plaintiff paid the additional sum and was discharged, it was held that there was no liability for false imprisonment; that the arrest was lawful, and that the court erred in refusing to dismiss on the ground that there was no evidence of the unlawfulness of the arrest. Warren v. Dennett, 13 Misc. Rep. 329, 68 St. Rep. 366, 34 N. Y. Supp. 462. ARTICLE V. LIABILITY FOR ARREST ON VOID OR INVALID PROCESS. In regard to the liability of plaintiffs for an arrest of defend- ant, the general principle seems to be that, where the right to arrest has been a point judicially decided in an action, the plaintiff is protected by such judgment, though, if resort be had to manage- ment or artifice to deprive the defendant of the benefit of the exemption against his body, it seems that an action for false im- prisonment will lie. Brown v. Crowl, 5 Wend. 298. Defendants are liable for arrest, under voidable process, the same as if the arrest was under void process, when such voidable 576 FALSE IMPRISONMENT. Art. 5. Liability for Arrest on Void or Invalid Process. process has been set aside as irregular. When such process is set aside, it ceases to be a justification to the parties guilty of the irregularity, and as to them it is void, and as if it had never ex- isted. The arrest, therefore, by relation, becomes void and with- out authority, and the action of trespass is proper remedy. Chap- man v. Dyett, 11 Wend. 31. Where one makes a complaint before a police magistrate on a subject-matter over which the magistrate has a general jurisdic- tion, and the magistrate thereupon issues a warrant, upon which the party complained of is arrested, the complainant is not liable, in an action for false imprisonment, although the facts stated in the complaint do not constitute a criminal offense, so as to give the magistrate authority to act in the particular case. So held where a party applying to a magistrate for a warrant of arrest, under an act to punish nuisances and malicious trespasses upon land, did no more than state his case to the-magistrate, without bad faith or malice. Held, that he was not liable for an action of false imprisonment, even though it be erroneous. Von Latham v. Inbby, 38 Barb. 339. The mere fact that a party goes before a magistrate and states what he regards as constituting a criminal offense is not sufficient to make him liable for false imprisonment, in the absence of malice or proof that he made a false statement or asked for a warrant or took part in its service, and both the complainant and the con- stable are protected if the justice held that the evidence was sufficient for the issuance of a warrant. Nor is the magistrate on his part liable for false imprisonment for a mere mistake of jndg- ment, such as failing to take an examination of the plaintiff and his wilneses and reducing the same to writing. Nowak v. Waller, 31 St. Rep. 458, 10 N. Y. Supp. 199. If the corapleint or deposition upon which the plaintiff was arrested was sufficient to give the justice jurisdiction, and show that a crime has been committed, and was sufficient to call for a judicial determination of the justice as to whether there is reagon- able ground to believe that the accused committed the crime charged, then the prosecutor will be protected in an action for false imprisonment, although the magistrate may have erred in his judgment. In determining the sufficiency of such judgment, the court will be allowed great, latitude of construction, where it is brought in collaterally, as in an action for false imprisonment. Swart v. Rickard, 148 N. Y. 264, reversing 74 Hun, 339. FALSE IMPRISONMENT. 577 Art. 5, Liability for Arrest on Void or Invalid Process. If a justice of the peace, through error, determines that. an offense has been committed, and that there is probable cause against the accused, and issues a warrant, the complainant is not liable for false imprisonment. Nor will mere delivery of the war- rant, believed to be valid, by the complaint to the officer, subject him to an action for false imprisonment. Otherwise, where the warrant is delivered with directions to arrest in a case where the warrant is void. Lewis v. Rose, 6 Lans. 206. A justice of the peace, in an action regularly brought before him to recover a penalty for less than $200, has jurisdiction to pass upon every question involved in the action, including the validity of the law imposing the penalty; and his judgment, so long as it remains unreversed, is conclusive upon the parties upon every question necessarily embraced therein. Hence, process regu- larly issued upon such a judgment, authorizing the imprisonment of the defendant-therein, is a protection in an action for false im- prisonment to the officer executing it, and to the parties at whose instance it was issued and served. Hallock v. Dominy, 69 N. Y. 238, reversing 7 Hun, 52, citing Chapman v. Dyett, 11 Wend. 31; Brown v. Crowl, 5 Wend. 298; Ackerly v. Parkinson, 3 M. & S. 411; Doswel v. Impey, 1 B. & C. 168, 1 Chit. Pl. 181; Miller v. Adams, 52 N. Y. 409; Beaty v. Perkins, 6 Wend. 382. A complainant upon whose charge the plaintiff is arrested is protected under a warrant which charges a criminal offense gen- erally — that is to say, the offense of larceny — although the war- rant fails to state the value of the property, and so is indefinite as to whether the crime is petit or grand larceny. Payn v. Barnes, 5 Barb. 465. It was held that, where a complaint was not on oath, and did not charge that the acts complained of were committed with criminal . intent, no jurisdiction in the justice was shown, and the action of false imprisonment could be maintained against the complainant Wilson v. Robinson, 6 How. Pr. 110. But it is held that, where the complaint gave the justice juris- diction by charging a ‘ertminal offense, although it does not specify the facts which constitute the offense, and although the justice erred in issuing a warrant, no action for false imprisonment can be maintained against the complainant or against the justice. Campbell v. Ewalt, 7 How. Pr. 399. In a case where the defendant had made a charge of perjury 37 578 FALSE IMPRISONMENT. Art. 5. Liability for Arrest on Void or Invalid Process. against the plaintiff, and asked for the issuance of a warrant, and where the plaintiff was subsequently discharged upon the ground that no perjury had been committed, the court said, in discussing defendant’s liability for false imprisonment: |“ We think, there- fore, that the statements in the deposition were sufficient to re- quire a justice to determine whether or not the crime of perjury had been committed by the defendant. In that case, although his conclusions may have been erroneous he acted within his juris- diction, and his issuing of the warrant is a protection to any per- son who acted under it. * * * The justice had jurisdiction to issue it (the warrant), and for that reason the defendant was not liable for false imprisonment, even if he had taken such part in the arrest as would have constituted him a trespasser had the warrant been void.” Krauskopf v. Tallman, 38 App. Div. 273, 56 N. Y. Supp. 967, citing Hallock v. Dominy, 69 N. Y. 238. A detective employed to investigate an alleged crime, and who subsequently verifies an information prepared by the district at- torney, embodying the results of the investigation, ending with the words: “ Wherefore, deponent prays that a warrant may be is- sued,” ete., is not liable for false imprisonment, though the party arrested on the warrant issued upon such information was subse- quently discharged. Such defense comes within the rule laid down in Von Latham v. Libbey, 38 Barb. 339, which the court says “has never been questioned in this State.” Whitney v. Hanse, 36 App. Div. 420, 55 N. Y. Supp. 375. In Taylor v. Trask, 7 Cow. 249, it was held that a party was not liable for false imprisonment in a case where the plaintiff was arrested by the mistake of a justice of the peace in issuing process against his body, where the arrest was made without plaintifi’s knowledge and where as soon as he knew of the mistake plaintiff obtained discharge of the party arrested. A party in a justice’s court is not accountable for the issuance of a process unless he directs and sanctions it, but it is otherwise as to process issued by an attorney in the court of record. It is held, however, in Gold v. Bissell, 1 Wend. 210, that in a justice’s court, where a summons is the regular process, a warrant without oath is void, and all parties concerned in the arrest under such process are trespassers; though in same case it was held that a party in a justice’s court is not held responsible for the issuance of a process unless he directs and sanctions it. FALSE IMPRISONMENT. 579 Art. 5. Liability for Arrest on Void or Invalid Process. In Brown v. Crowl, 5 Wend. 298, it was held that the plain- tiff in a justice’s court is not liable for false imprisonment for in- sisting that he has a right to a body execution where it is decided in favor of the plaintiff’s contention judicially. The plaintiff is protected by the judgment, even though the same is erroneous. See also case of Peckham v. Tomlinson, 6 Barb. 253, where it was held that a person who prefers a criminal charge against another before a justice of the peace, and is a witness upon the trial and employs counsel to conduct the trial for the people, is not liable for false imprisonment after an erroneous conviction by a justice where there is nothing to connect him with the unlawful imprison- ment of plaintiff. Making a complaint against a person as a lunatic before a magis- trate, who thereupon issues an order for the arrest of the alleged lunatic as such, is not a sufficient ground in itself to support an action for false imprisonment. Williams v. Williams, 2 Hun, 111, 4T. & C. 251. The mere fact that a party goes before a magistrate and makes a statement that he regards as a criminal charge is not sufficient to make him liable for false imprisonment in the absence of proof of malice, or that he made a false statement and asked for the warrant or took part in its service. Nowalk v. Waller, 31 St. Rep. 458, 10 N. Y. Supp. 199. For a case where it was held that the defendant was justified in arresting the plaintiff, where. the plaintiff had hired defendant’s horse and had failed to return it at the time promised, see Olm- stead v. Dolan, 25 St. Rep. 634, 6 N. Y. Supp. 130. A ministerial officer is protected in the execution of process whether the same issued from a court of general or limited juris- diction, even though the court in fact had no jurisdiction, pro- vided it appears on the face of the process that the court had jurisdiction of the subject-matter, and nothing appears to apprise the officer but that the court also had jurisdiction of the person. Savacool v. Boughton, 5 Wend. 171. This is a leading case and has been cited and followed in a large number of subsequent cases. If the process is regular on its face it cannot be shown that the officer knew facts avoiding it. Weber v. Gay, 24 Wend. 485; People v. Warren, 5 Hill, 440. If there is enough evidence to warrant a magistrate in taking 580 FALSE IMPRISONMENT. Art. 5. Liability for Arrest on Void or Invalid Process. action, his action is judicial, and he and the officer executing the order are protected. Minehan v. Thomas, 9 Week. Dig. 32. In an action for false imprisonment under a judgment which had been set aside, the writ is a sufficient protection if it shows that the order setting it aside was not legally made. Lewis v. Penfield, 39 How. Pr. 490. ' The taking of an indemnity does not deprive an officer of the protection which his process affords. Horton v. Hendershot, 1 Hill, 118. If the sworn complaint charging a person with a crime is suf- ficient to give a magistrate jurisdiction to issue a warrant, the person making the complaint is protected by it, and the arrest of the plaintiff under it is fully justified. Gardner v. Bain, 5 Lans. 256; Lewis v. Rose, 6 Lans. 206. A warrant is not invalid because of an error in its date. Nowak v. Waller, 31 St. Rep. 458, 10 N. Y. Supp. 199. For a case where a constable, executing a warrant for violation of statute as to the observation of Sunday, was held not liable, see Stewart v. Hawley, 21 Wend. 552. Where the execution against a person has been declared to be regular by a court having jurisdiction, such decision is binding on appeal by the plaintiff in an action to recover damage for al- leged false imprisonment. Sherman v. Grinnell, 159 N. Y. 50, citing Culross v. Gibbons, 1380 N. Y. 447. In Sherman v. Grinnell, supra, the right to a body execution in an action for conversion of money is discussed. An officer executing a warrant will be protected in so doing where the warrant shows a case within the jurisdiction of the jus- tice issuing it, although it does not recite a legal offense. Smith v. Warden, 4 Hun, 787. The court says: “ Ever since the case of Savacool v. Boughton, 5 Wend. 170, it has been recognized principle of the law of this State that the process of a magistrate having jurisdiction of the subject-matter, fair on its face, pro- tected a ministerial officer in its execution.” Atchison v. Spen- cer, 9 Wend. 62; Campbell v. Ewalt, 7 How. 400. Where a party obtains a body execution after judgment in an action for conversion, such execution, under section 3026 of the Code of Civil Procedure, is available as a defense in a subsequent action for false imprisonment. Farrelly v. Hubbard, 148 N. Y. 592, reversing 84 Hun, 391. FALSE IMPRISONMENT. 581 Art. 5. Liability for Arrest on Void or Invalid Process. The defendant was held liable for false imprisonment in mak- ing an arrest in violation of Laws of 1831, p. 396, being an act to zbolish imprisonment for debt, in spite of the issuance of a judge’s order to hold to bail. The court said: “ Now since the Act of 1531 no authority to arrest exists here except in the cases specified in the second section, and the plaintiff and his attorney, therefore, must see to it that the defendant is liable to arrest before direction for his arrest, or that he be held to bail, may be given.” Bracket v. Eastman, 17 Wend. 32. If an attachment, although issued by a tribunal with jurisdic- tion, is set aside for irregularity, the party taking it out becomes a trespasser ab initio, and he cannot escape liability by throwing the responsibility upon his attorney. Ackroyd v. Ackroyd, 3 Daly, 38. A judgment creditor is not liable in an action for false impris- onment for the arrest of his debtor under an erroneous order in supplementary proceedings where the judge had jurisdiction to make the order. Waldo v. Selden, 4 Week. Dig. 370. Where one procured a warrant of arrest under a nonimprison- ment act, which was issued upon an insufficient affidavit and was void for want of jurisdiction, it was held that an action for false imprisonment would lie against the person procuring such war- rant after the proceedings had been annulled upon certiorari. Vredenburg v. Hendricks, 17 Barb. 179. A discharge under the Two-thirds Act acts upon a previously existing judgment for tort, discharges the same as if it had been paid or released. Therefore, when a debtor is arrested on such judgment after such discharge the party at whose instance it is issued, as well as the attorney who issues it, is liable for false imprisonment. And this is 60 whether they were notified of the discharge or not, though want of such notice is available in mitigation of damages. Deyo v. Van Valkenburgh, 5 Hill, 242. A judgment protects a party for acts done under it although it is subsequently reversed for error. But it is otherwise, it seems, if such judgment is set aside for irregularity. So held where one having a judgment for conversion of personal property from which an appeal was taken without stay of proceedings. A party who delivers to a sheriff a valid process is not responsi- ble for irregularity of the sheriff in executing such process unless it appears affirmatively that the sheriff acted under the orders of 582 FALSE IMPRISONMENT. Art. 5. Liability for Arrest on Void or Invalid Process. the party when he committed the trespass. The party is answer- able only for the validity of the process and for good faith in obtaining it. Adams v. Freeman, 9 Johns. 117. By directing the issuance of an unwarranted body execution a judgment creditor becomes a joint tort feasor with his attorney. Baker v. Secor, 22 St. Rep. 97, 4 N. Y. Supp. 303. It was held that one who applies to a judge to issue an attach- ment and who receives and delivers it to the sheriff for service is liable for the arrest in case the attachment shall be void for want of jurisdiction or for any other cause. Miller v. Adams, 52 N. Y. 409, affirming 7 Lans. 101. This case hinges upon the right to an attachment in supplementary proceedings. But it has been held that where a person has been arrested upon a criminal charge without competent evidence of guilt, both the magistrate and the prosecutor are jointly liable for false imprison- ment. Comfort v. Fulton, 18 Abb. Pr. 276, 39 Barb. 56. As a simple trespass is not a crime there is no authority for an arrest for such an act, and one instigating such arrest is liable. Midford v. Kann, 32 App. Div. 230, 52 N. Y. Supp. 995. Where an officer without jurisdiction issues a warrant under which a person is arrested, the persons instrumental in procuring it are trespassers and liable for false imprisonment. Lansing v. Case, 4 N. Y. Leg. Obs. 221. Where plaintiff was arrested on a warrant issued by the re- corder of a city on information sworn to by the defendant, under section 84 of the Code of Criminal Procedure, authorizing infor- mation to be laid before a magistrate against a person threaten- ing to commit a crime against the person or property of another, and where the information charged against the plaintiff was that he threatened to commit the crime of injuring the property of a corporation (Penal Code, §§ 639-654), it was held that while the provisions of the Penal Code do not in terms make intent a material element, yet unlawful and criminal intent must be al- leged and proven. That where the warrant and the information allege no unlawful or criminal intent, and where the person fur- nishing the information received the warrant and delivered it to the chief of police, with the request that it be served, such per- son is liable for false imprisonment; that the recorder acquired no jurisdiction and that the proceedings and the warrant were absolutely void. Hewitt v. Newburger, 141 N. Y. 538, reversing 66 Hun, 230; s. c., 57 St. Rep. 821. FALSE IMPRISONMENT. 583 Art. 5. Liability for Arrest on Void or Invalid Process. Where the plaintiff purchased a sewing machine of the defend- ant, title to remain in the latter until he same is paid for, and where before full payment it was transferred to a third person with the consent of defendant’s agent, and upon failure of fur- ther payments the defendants caused the arrest of plaintiff and imprisoned him for eight days, it was held, in an action for false imprisonment, that such arrest was unlawful, without probable cause, and malicious; that the defendant should have sought re- dress from the holder of the machine. Davidoff v. W. & W. Mfg. Co., 14 Misc. Rep. 456, 35 N. Y. Supp. 1019. For a discussion of the circumstanees under which an action will lie against a person procuring a warrant to be issued, and giving directions for its service, see Loomis v. Render, 41 Hun, 268. On the liability of attorneys and others in cases where the process is void or merely voidable, see Fischer v. Langbein, 103 N. Y. 84. In order to warrant an arrest the process must so describe the person that the officer may know whom to arrest, and that the party whose liberty is threatened may know whether or not he is bound to submit. It is no defense to an action for false imprisonment to show that although the wrong person was described the right party was arrested. Miller v. Foley, 28 Barb. 630. See also Mead v. Hawes, 7 Cow. 332; Griswold v. Sedgwick, 6 Cow. 456, 1 Wend. 126; Scott v. Hly, 4 Wend. 555; Cooter v. Bronson, 67 Barb. 444. Where a warrant recites a complaint against John Miller and commanded the officer to arrest “the said William Miller,” it was held that the warrant afforded no justification to the officer in arresting John Miller, although it was proven he was the per- son intended. Miller v. Foley, 28 Barb. 630. The defendant cannot justify the arrest of the plaintiff by a wrong name, although he actually was the person intended to be arrested, unless it is shown that he is known as well by one name as by the other. Griswold v. Sedgwick, 1 Wend. 126, 6 Cow. 456. The arrest of a person by the wrong name cannot be justified, although he was the person intended, unless it can be shown that he was known by both names. So held in a case where a warrant was issued against “John Doe, the person carrying off the can- non,” and was intended as against Levi Moore, who was, when 584 FALSE IMPRISONMENT. Art. 5. Liability for Arrest on Void or Invalid Process. the warrant was issued, in the act of carrying off the cannon, and for whom it was intended. Mead v. Hawes, 7 Cow. 332, citing Griswold v. Sedgwick, 6 Cow. 456. A misnomer in a warrant of the person arrested subjects those acting under it to an action for false imprisonment. So held in a case where the name of the plaintiff was Eveline, and the war- rant issued was against Emeline, although there was no doubt but that the plaintiff was the person against whom the warrant was issued. Scott v. Ely, 4 Wend. 555. See also cases under title “Imprisonment by Various Classes of Persons — by Judicial Officers — by Legislative Bodies and Judges.” Tf the law under which a warrant was issued is unconstitutional it is no protection to the defendant, although he acted in good faith. Walliams v. Garrett, 12 How. Pr. 456. As to the liability of attorneys and others procuring the issu- ance of void process, and also liability for the issuance of voidable process, together with the distinction between void and voidable process, see Fischer v. Langbein, 103 N. Y. 84. An action lies for an arrest under a voidable process, which is set aside by the court for irregularity. Ackroyd v. Ackroyd, 3 Daly, 38. If a judge acquire jurisdiction and the plaintiff was arrested under his warrant, he cannot take advantage of any irregularity in the proceedings. Stanton v. Schell, 3 Sandf. 323. An action for false imprisonment lies for the arrest under voidable process which is set aside by the court as irregular. Chapman v. Dyett, 11 Wend. 33. The fact that the defendant was a sheriff in another State, and acted upon a bench warrant issued upon an indictment found in that State, will not authorize him to arrest a person within this State and carry him beyond our boundaries. In so acting he is to be treated as a private person acting without legal process. And, moreover, one who has arrested another without process, or upon void process, cannot detain him upon a valid process until he has first restored said party to the condition he was in at the time of the arrest. Mandeville v. Guernsey, 51 Barb. 99. As to the liability of a constable acting on a warrant void because outside of the limits of the magistrate’s jurisdiction, see Greene v. Rumsey, 2 Wend. 611. FALSE IMPRISONMENT. 585 Art. 5. Liability for Arrest on Void or Invalid Process, An arrest by a police officer at night on a warrant for a misde- meanor upon which no direction for such arrest is indorsed by the magistrate renders him liable for false imprisonment. Murphy v. Kron, 20 Abb. N. C. 259. An illegal arrest on such an insufficient warrant cannot be jus- tified as an arrest for another offense. Murphy v. Kron, 20 Abb. N. ©. 259. The distinction between void and irregular process is pointed out in Fischer v. Langbein, 2 St. Rep. 768. In regard to the liability of persons causing the issuance of process the court says: “Tn all cases where the court has acquired jurisdiction in an ac- tion or proceeding its orders made or judgments rendered therein are valid and enforceable, and afford a protection to all persons acting under them, although they may afterward be set aside and reversed as erroneous. Errors committed by the court upon a hearing or proceeding which it is authorized to hear, but not affecting any jurisdictional fact, do not invalidate its orders, or authorize a party to treat them as void, but can be taken advan- tage of only by appeal or motion in the original action.” So held where the plaintiff was arrested as for a contempt of court and where the determination of the Special Term that a process should issue was reversed. The Court of Appeals held that the decision of the Special Term was a decision upon a simple question of law; that the court had jurisdiction of the parties and the subject-matter and had authority to determine whether con- tempt had been committed or not, and that, therefore, the parties procuring the process were protected. Fischer v. Langbein, 103 N. Y. 84. One who applies to a judge for an attachment because of the neglect of a judgment debtor to appear and be examined in supple- mentary proceedings is liable to false imprisonment in case the attachment is void for want of jurisdiction in the judge, or for any other cause. Miller v. Adams, 52 N. Y. 409, 7 Lans.131. For the same principle, involving illegal arrest under Non-Impris- onment Act, in a case where the judge. did not obtain jurisdiction, because there was no affidavit, and where the person instigating the imprisonment was held liable, see Vredenburgh v. Hendricks, 17 Barb. 179. Where no contempt is made out the attachment is absolutely void, and the person causing it to be executed is liable for false 586 FALSE IMPRISONMENT. Art. 5. Liability for Arrest on Void or Invalid Process. imprisonment, and the action of the plaintiff cannot be interfered with by imposing a condition that the plaintiff should not sue for false imprisonment on vacating the attachment. So held in a case where attachment issued for failure to cbey a subpena issued under an act which gave no authority to compel attendance of witnesses. Matter of Bradner, 87 N. Y. 171. An order for the discharge of an imprisoned debtor must be made by the court, and hence if an order does not show on its face whether it was made by the court or a judge out of court, the sheriff is not liable for false imprisonment upon such an order, especially if such debtor is advised that the order is defective. Hayes v. Bowe, 65 How. Pr. 347, 12 Daly, 193. In respect to an arrest made by an officer upon information submitted before a magistrate, who issued a warrant thereon, Her- rick, J., in Hewitt v. Newburger, 66 Hun, at p. 232, 20 N. Y. Supp. 913, says: “Courts of minor criminal jurisdiction are courts where people are expected and invited to initiate prose- cutions without counsel — and it is the policy of the law to en- courage them to do so; and the proceedings there should be so regulated that the unlettered and unlearned may enter freely, without fear that their ignorance of forms of law and its terms may lead them into greater dangers or difficulties than those from which they seek protection or redress. A plain statement of the acts of which they complain, without stating the evidence, it seems to me, is sufficient. The magistrate then becomes the re sponsible party, he is to determine from the statement, or infor- mation, whether the warrant should issue, and he, not the person lodging the information, is responsible for. its form. The per- son lodging the information being liable in an action for malicious prosecution, if he willfully, corruptly, or maliciously misleads the magistrate by any false statement in his information.” Reversed 141 N. Y. 2388. The defendant made a complaint, under the Game Law, on which a warrant was issued and plaintiff arrested. Plaintiff had violated sections 210-217 of the Game Law, which forbid tres- passing upon private grounds for the purpose of hunting, fishing, etc., and section 217 provides that for violation of such article the person is liable to exemplary damages to not more than $25. The arrest was made under section 246, providing an arrest for violation of the Game Law. Held, that the latter section was applicable to a criminal offense and did not warrant an arrest FALSE IMPRISONMENT. 587 Art. 6. Liability of Judicial Officers. for a trespass which was a civil action, and, therefore, the defend- ant was liable. Stahl v. Roof, 164 N. Y. 162. ARTICLE VI. LIABILITY OF JUDICIAL OFFICERS. The liability of a magistrate or judge has been considered under chapter V relating to exemptions from liability for torts, article III of that chapter treating of judicial and quasi-judicial officers and proceedings. In view of the fact that only the leading authorities with re- gard to the liability of judicial officers were cited under that head, attention will be called to the authorities bearing upon the subject, although necessarily involving somewhat of repetition. The foundation of exemption of judicial officers lies in the rule thus recently formulated. In the absence of malice, persons acting in a quasi-judicial capacity are not liable for errors of judgment in erroneously determining matters in their jurisdiction affecting the personal or property rights of others. Lurman v. Jarvie, 82 App. Div. 37 (44). The rule was laid down in Weaver v. Devendorf, 3 Den. 117, that a public officer is not responsible in a civil suit for a judicial determination in a matter over which he had jurisdiction, how- ever erroneous it may be or however malicious the motive which produced it. This language is cited in Hast River Gas Light Co. v. Donnelly, 93 N. Y. 557, Danforth, J., adding: “ The prin- ciple upon which the rule rests was applied by the late Supreme Court in the case of Weaver v. Devendorf, 3 Den. 117, sustained by a great array of authorities, to which many later ones might be added, but none to the contrary. These authorities are cited and followed in Hommert v. Gleason, 38 St. Rep. 342, where it is said that it is elementary law that no judge or magistrate can be held responsible in a civil suit for a judicial determination, however erroneous. A judge who is required to pass upon a question as to which different minds might reach different conclusions cannot be held liable for false imprisonment for an error in his decision when made by him in good faith and without malice, even though an appellate’ court subsequently reverses his decision and holds that the judge had no power to render or enforce the same. So held 588 : FALSE IMPRISONMENT. Art. 6. Liability of Judicial Officers. where the plaintiff, convicted of a crime punishable with a fine or imprisonment, having paid the fine, was subsequently sen- tenced to imprisonment. Lange v. Benedict, 8 Hun, 362. See this decision for a discussion of the judicial function. The judge of a superior court or court of general jurisdiction is not liable for a judicial act in a matter within his jurisdiction, although the act is in excess thereof. So held where the defend- ant, a judge of the United States District Court, sentenced the plaintiff to pay a fine and be imprisoned where the crime was punishable only by fine or imprisonment, and where upon habeas corpus the sentence was vacated by the defendant and the plain- tiff resentenced to imprisonment only. Lange v. Benedict, 73 N. Y. 12, affirming 8 Hun, 362, reversing 48 How. Pr. 465. Where a warrant is issued by a judicial officer upon an affidavit giving him jurisdiction, in issuing the order he acts judicially and makes a judicial determination. Neither the judge nor the person furnishing the affidavit are liable for false imprisonment, although the warrant is subsequently set aside upon discovery of other facts. Marks v. Townsend, 97 N. Y. 596. See this case for a discussion of the theory upon which this determination is founded. In Fischer. v: Langbein, 108 N. Y. 84, the rule as to jurisdic- tion is summed up as follows: “ The power of the court to enter- tain jurisdiction of an action or proceeding does not depend upon the existence of a sustaining cause of action, but upon the per- formance by the party of the prerequisites authorizing it to de- termine whether one exists or not.” At p. 94 of the opinion the court points out the proper rule, after a consideration of the authorities, as follows: “ The rule to be deduced from these authorities seems to be that when a court is called upon to adjudicate upon doubtful questions of law or determine as to inferences to be drawn from circumstances, reasonably susceptible of different interpretations or meanings, and calling for the exercise of the judicial function in their deter- mination, its decision thereon does not render an order or process based upon it, although afterward vacated or set aside as errone- ous, void, or subject the party procuring it to an action for dam- ages thereby inflicted. Where the jurisdiction of the court is made to depend upon the existence of some fact of which there is an entire absence of proof, it has no authority to act in the FALSE IMPRISONMENT. 589 Art. 6. Liability of Judicial Officers. premises, and if it, nevertheless, proceeds and entertains jurisdic- tion of the proceeding, all of its acts are void and afford no jus- tification to the parties instituting them as against parties in- juriously affected thereby. But if the facts presented to the court call upon it for the exercise of judgment and reason upon evidence which might in its consideration affect different minds differently, a judicial question is presented which, however de- cided, does not render either party, or the court making it, liable for the consequences of its action.” In discussing the liability of a judicial officer the rule is “thus stated by Peckham, J., in Austin v. Vrooman, 128 N. Y. 235: “Tt is not a question ‘of jurisdiction to proceed with the trial, notwithstanding the demand, but it is a question of jurisdiction to decide whether he has or has not that right. Manifestly he does not, as a matter of law, acquire jurisdiction to proceed by deciding that he has it; but, being confronted with the question of jurisdiction, has he the power to decide it so far that his er- roneous decision that he has it exempts him from liability on the ground that he has only made a judicial error or an error of judgment upon a question of law, which he was bound to decide?” It will be seen that this decision holds that under some cir- cumstances the decision of a justice as to whether or not he has jurisdiction is a determination of the matter apparently pending before him and over which he has jurisdiction, and that he will be protected in his decision, although it be erroneous. The court distinguishes this case from cases where a justice decided to exer- cise power that he does not and never did possess, as where a justice of the peace proceeded to try a civil action for assault and battery. Woodward v. Paine, 15 Johns. 492. In such case the justice never obtained jurisdiction over the subject-matter, and he could not obtain it by deciding that he had it. Where a justice has no jurisdiction over the subject-matter he acts as a trespasser from the beginning in assuming it, and his decision that he has it is no protection to him. See this case for discussion of the authorities upon this question. In Wilson v. Mayor, 1 Den. 595, it is held that where a duty, judicial in its nature, is imposed upon a public officer or munici- pal corporation, a private action will not lie for misconduct or delinquency in its performance, even if corrupt motives are charged. 590 FALSE IMPRISONMENT. Art. 6. Liability of Judicial Officers. A judicial officer is not liable to an action for false imprison- ment for convicting plaintiff of a criminal offense as long as his conviction remains unreversed, unless the plaintiff shows the fact that the conviction was obtained by fraud or conspiracy in which the court participated. Cuniff v. Beecher, 84 Hun, 140, 32 N. Y. Supp. 1067. The general rule is that where a judge who has jurisdiction errs in his judgment as to whether the facts presented do or do not con- fer jurisdiction, he is not liable for false imprisonment, though he make an error of judgment. Nowak v. Waller, 31 St. Rep. 458, 10 N. Y. Supp. 199, citing Ayres v. Russell, 50 Hun, 282, 3 N. Y. Supp. 338. A justice of the peace in issuing a criminal warrant is exercis- ing general jurisdiction over the subject-matter, and not special jurisdiction over the particular offense. All that is required to protect him in so doing is that the evidence produced is colorable, or something that the judicial mind is called upon to act in deter- mining the question of probable cause. It is not necessary for him to state in the criminal warrant the evidence by which the charge is supported. All that is required in that particular is that he recite the accusation. Pratt v. Bogardus, 49 Barb. 89. In regard to imprisonment by a magistrate, see the opinion of Herrick, J., in Hewitt v. Newburger, 66 Hun, 232, 20 N. Y. Supp. 913, quotation from which is given in last subdivision. Where a magistrate issues a warrant on a complaint for viola- tion of the statute as to the observation of Sunday, it was held that he was not liable for false imprisonment, although he might have misjudged as to the facts bringing the offense within the meaning of the statute. The court says: “It cannot be doubted but that the justice, by means of the complaint in this action and the warrant issued thereupon, acquired jurisdiction over the sub- ject-matter and the person of the defendant, and that his error, if any, was an error of judgment.” Stewart v. Hawley, 21 Wend. 552. In Kenner v. Morrison, 12 Hun, 204, it was held that where a justice of the peace committed plaintiff to the county jail upon his failure to give bail, such commitment was an error of judg- ment, and that as he had jurisdiction of the person and of the subject-matter, he was protected in an action for false imprison- ment. FALSE IMPRISONMENT. 591 Art. 6. Liability of Judicial Officers. A justice of the Supreme Court who grants an order of arrest upon affidavits setting forth but slight evidence of the requisite facts ana which on a motion to set aside, the order would be in- sufficient to support, is nevertheless protected, as is also the party obtaining it and the officer making the arrest under it. Such order is merely erroneous. Hall v. Munger, 5 Lans. 100. An officer authorized to grant an arrest and to hold to bail acts judicially, and is not liable for false imprisonment in consequence of such an arrest upon process, where a case is presented for the exercise of his judgment. Harman v. Brotherson, 1 Den. 587. In Sands v. Benedict, 2 Hun, 479, 5 T. & C. 19, a justice of the peace was held to be justified in committing the plaintiff in default of his giving security to keep the peace, though made subsequent to an affray which had been witnessed by the justice and without other evidence than his own senses. It was held that the rule requiring sheriffs and constables to make an arrest to pre- vent a breach of the peace at the very time it is committed has no application to an arrest by a judicial officer, charged with the duty of compelling persons to keep the peace. Where a judge in a proceeding before him as to the commit- ment of an alleged insane person erred in his judgment as to whether the facts presented did or did not confer jurisdiction upon him, he is not liable in an action for false imprisonment, although he makes an error in his judgment. Ayres v. Russell, 50 Hun, 981, 3 N. Y. Supp. 338. Upon this subject the court said: ‘“ Why then cannot the magistrate be pursued by the injured individual? Because when information was presented to him it was his duty to decide what his duty was respecting it. He had jurisdiction of that question, and his wrong decision upon it was a judicial error. He had a duty to perform and the law does not punish him for a mistake in trying to do right.” Citing Lange v. Benedict, 73 N. Y. 35. A justice who issues a process outside of his jurisdiction is liable for false imprisonment, for an arrest upon such process, even though the person arrested makes no objection to the infor- mality. The justice is not liable, however, if a person appear voluntarily and submits to an examination. Where a statute re- quires that a certain person shall execute process, and it is exe- cuted by another, such a proceeding is void. Reynolds v. Orvis, 7 Cow. 268. 592 FALSE IMPRISONMENT. Art. 6. Liability of Judicial Officers. If a justice issue a warrant without complaint on oath, showing the commission of an offense, he is lable for false imprisonment. Wilson v. Robinson, 6 How. Pr. 110. So, too, a justice at Special Sessions who convicts and sentences a person for an offense of which the court has not jurisdiction is liable to false imprison- ment. Wait v. Green, 5 Park. Ch. 185. So if a warrant of a magistrate is void upon its face, in that it states no offense, the magistrate is liable. Blythe v. Tompkins, 2 Abb. Pr. 468. A jus- tice is liable, although he has jurisdiction, if he issues a warrant to a constable who is not authorized to serve it. Reynolds v. Orvis, 7 Cow. 269. Where a justice issues a warrant on a criminal charge without sufficient evidence of the crime, both the justice and the com- plainant are jointly liable in an action for false imprisonment. Comfort v. Fulton, 39 Barb. 56, 138 Abb. Pr. 276. In Warner v. Perry, 14 Hun, 337, the defendant, a justice of the peace, was held liable for issuing a warrant under a statute relating to cruelty to animals, where plaintiff did not state facts by which an offense under the act was made out. A justice of the peace was held liable for false imprisonment, in issuing a warrant of arrest against the putative father of a bastard child, where the warrant was issued on the application of an at- torney, representing that he had authority from the overseers of the poor, when in fact he had no such authority. This is so, even though the overseers of the poor after the arrest consented to the proceeding. Wallsworth v. McCullough, 10 Johns. 93. Where one is arrested, tried, and convicted in a court which has no jurisdiction, the imprisonment cannot be justified by saying that the evidence would have convicted him of some other offense of which the court had jurisdiction. Wait v. Green, 5 Park. Cr. 185. If there is enough evidence to warrant a magistrate in taking action, his action is judicial, and he and the officer executing the order are protected. Mznehan v. Thomas, 9 Week. Dig. 32. For a case where the facts stated upon a sworn complaint were sufficient to render the action of the justice in passing upon the sufficiency of the complaint a judicial one and protect him, see Bocock v. Cochran, 32 Hun, 521. For a case where a deposition before a magistrate was held to be sufficient to warrant him in issuing a warrant of arrest, see FALSE IMPRISONMENT. 593 Art. 6. Liability of Judicial Officers. McKelvey v. Marsh, 63 App. Div. 396, 71 N. Y. Supp. 541, 105 St. Rep. 541. Where a justice of the peace before whom the plaintiff was arraigned had jurisdiction both of the crime and the person of the defendant, any defect or irregularity in the warrant of arrest or in the deposition is waived by the voluntary appearance of the defendant. * * * Even if the justice erred in his judgment as to the sufficiency of the deposition the prosecutor will be pro- tected from civil liability. Jones v. Foster, 438. App. Div. 33, 59 N. Y. Supp. 738; Austin v. Vrooman, 128 N. Y. 229; Swart v Rickard, 148 N. Y. 264. Where a justice of the peace has jurisdiction to issue a process and also jurisdiction of the subject-matter, he acts judicially in passing upon the sufficiency of the evidence upon which he issues the process, and is not liable in an action for false imprisonment. Harrison v. Clark, 4 Hun, 685. To the effect that a justice acts judicially in passing upon the sufficiency of evidence, see Stewart vy. Brown, 16 Barb. 667; Harman v. Brotherson, 1 Den. 537; Payn v. Barnes, 5 Barb. 465. A justice of the peace who acts without acquiring jurisdiction is a trespasser; but once having acquired jurisdiction an error in judgment does not subject him to an action. So held where a justice granted an adjournment to a plaintiff not entitled to it and subsequently rendered judgment and issued execution upon which he was imprisoned. Horton v. Auchmoody, 7 Wend. 200. Where a complaint stated facts from which a justice might have concluded plaintiff had committed an offense under the stat- ute, it was held that the justice acquired jurisdiction and was not liable in an action for false imprisonment (Gardner v. Bain, 5 Lans. 257) upon the ground that the justice, by means of the complaint and the warrant issued thereon, acquired jurisdiction over the subject-matter and the person of the defendant, and that the error, if any, was an error of judgment, citing Harman v. Brotherson, 1 Den. 537; Matter of Faulkner, 4 Hill, 598; Landt v. Hilts, 19 Barb. 283; Stanton v. Schell, 3 Sandf. 328; Von Latham v. Libby, 38 Barb. 339; Skinnion v. Kelley, 13 N. Y. 355. A recorder of a city having jurisdiction of a case for the vio- lation of an ordinance acts judicially in granting a warrant and cannot be held liable for false imprisonment. So held where an 38 594 FALSE IMPRISONMENT. Art. 6. Liability of Judicial Officers. ordinance of tke city of Binghamton in relation to fire limits and the erection of buildings therein were illegal, and where a viola- tion of such ordinance was a misdemeanor. Brunner v. Downs, 43 St. Rep. 824, 63 Hun, 626, 17 N, Y. Supp. 633. In Miller v. Adams, 7 Lans. 136, the court says that the fol- lowing proposition may be considered as established : First. That a judge of a court of record is not civilly liable for any error of judgment he may commit, although it may be intentional. . Second. A court or officer of inferior jurisdiction is liable to the party injured when he or it acts without having jurisdiction of the subject-matter and of the person of the party proceeded against, unless the question whether jurisdiction is obtained is a judicial one, to be determined by such court or officer, in which case the decision is a protection to him or it and to the party. Third. When the evidence presented to the court or officer has a tendency to prove the facts required to be proved to confer juris- diction, the decision protects the court or officer and also the party. Fourth, When a party or his attorney may lawfully issue process against the person or property of a party, they are liable if the process is issued in a case not authorized by law; and when it is issued in a case in which it may lawfully issue, but it is issued irregularly, they are liable only after it is set aside for such irregularity. While it remains in force it is a protection. Fifth. While it is true that process issued by a court or officer in favor of a party upon proof, to be made to the satisfaction of such court or officer, although it may be issued erroneously, is a protection to him; yet if he interferes in the arrest beyond taking out the process and delivering it to an officer to be exe- cuted, he is liable for such unauthorized interference. Sivth. The party who maliciously and in bad faith extends the jurisdiction of a court or officer to a case to which it cannot lawfully be extended is liable to the party injured thereby. Affirmed 52 N. Y. 409, cited Marks v. Townsend, 97 N. Y. 598; Fischer v. Langbein, 103 N. Y. 92. Chapter 601, Laws 1895, abolishing the office of police justice in the city and county of New York, is constitutional, and thus a prior incumbent of that office who issues a warrant after his office has been abolished is liable for false imprisonment. Stenson v. Koch, 152 N. Y. 87, affirming 5 App. Div. 621. FALSE IMPRISONMENT. TU CO Gu Art. 6. Liability of Judicial Officers. It has been held that where a person is arrested upon a criminal charge without competent evidence of guilt, both the magistrate and the prosecutor are jointly liable for false imprisonment. Comfort v. Fulton, 138 Abb. Pr. 276, 39 Barb. 56. A justice of the peace who unlawfully issues a body execution is liable in damages for an arrest made thereon by a constable. Campbell v. Kelly, 20 Week. Dig. 160. A justice who unlawfully issues a body execution is liable for arrest. Campbell v. Kelly, 20 Week. Dig. 160. A justice of the peace cannot adjudge a person in contempt and punish him save in a case prescribed by statute. In order te give the justice jurisdiction to punish for contempt for a re- fusal to answer a proper and pertinent question there must be an oath of the party as to the materiality of the testimony ; there- fore, where no such oath is made the justice is liable to an action for false imprisonment for a commitment as for contempt. Rutherford v. Holmes, 66 N. Y. 368, affirming 5 Hun, 317. In Percival v. Jones, 2 Johns. Cas. 49, it was held that where a justice of the peace acted ministerially at the request of a party, he was not liable; but where he acted outside of his jurisdiction in a judicial capacity, he was liable for false imprisonment. This case h4s been frequently cited and commented upon. In Hoose v. Sherrill, 16 Wend. 33, at p. 42, Bronson, J., said that what was said by the court in Percival v. Jones, in relation to the justice acting as a ministerial officer in issuing process, and as such not being responsible, must be understood in reference to the particular circumstances of that case, in which it was ques- tionable, to say the least, whether the defendant ought to have been held liable. Percival v. Jones, supra, is cited in Sagendorph v. Shult, 41 Barb. 102, where the distinction is made that the issuing of the summons is a ministerial and not a judicial act, and that the time when the question of jurisdiction of the act is judicially determined is upon the return day. Hess v. Morgan, 3 Johns. Cas. 84, distinguishes Percival v. Jones, upon the ground that in the latter case there was a waiver on the part of the defendant of the right of exemption. 596 FALSE IMPRISONMENT. Art. 7. Liability for Acts of Servants and Agents. ARTICLE VIZ. LIABILITY FOR ACTS OF SERVANTS AND AGENTS. PAGE. Susprvision 1. Liability of corporations for acts of servants. 596 2. Liability of individuals and copartners for acts of servants 12... .. cece cece eee eee 600 SUBDIVISION 1. Liability of Corporations for Acts of Servants. The liability of a corporation for an arrest made by one of its employees is very fully considered in Mulligan v. New York & Rockaway Beach R. R. Co., 129 N. Y. 506, and Palmeri v. Man- hattan Ry. Co., 183 N. Y. 261. In the Mulligan Case it was held that while the law is settled that the common carrier by its contract of transportation under- takes to protect the passengers against any injury arising from the negligence or willful misconduct of its servants, while engaged in performing a duty which the carrier owes to him, citing Stewart v. B. & C. Co., 90 N. Y. 588, yet upon the facts disclosed by the record the case does not come within the principle there estab- lished. In the Palmeri Case, the court considered the Mulligan Case and said: ‘“ What materially distinguishes the present from the Mulligan Case is that there the servant of the company was not acting for the protection of the company’s interests, but went quite outside of the line of his duty to perform a supposed service to the community by procuring the arrest of criminals whom he knew the authorities were endeavoring to apprehend. That did not enter into the transaction of his employer’s business ; whereas, here the ticket agent clearly was engaged about the company’s affairs, but, in the belief of the jury, unlawfully detained the plaintiff and insulted her by slandering her character.” Both these cases are considered in opinion of Hatch, J., in Penny v. N. Y. C. & H. R. R. R. Co., 34 App. Div. 10, 53 N. Y. Supp. 1043, to the general rule that it matters not that the servant’s acts were reckless and unnecessary, if injury was in- flicted, or if he passed his authority or departed from his instruc- tions, or through infirmity of temper added slander to his other wrongdoing, all these are unavailing to shield the master so long as FALSE IMPRISONMENT. 597 Art. 7. Liability for Acts of Servants and Agents. the things that are done are done in the prosecution of the business of the master, even though such acts be not only negligent but wanton and willful, citing Burns v. Glens Falls R. R. Co., 4 App. Div. 426, 38 N. Y. Supp. 856. Unless the servant is acting within the scope of the authority, the master is not responsible for the servant’s acts. Judgment in favor of plaintiff was reversed upon the ground that the acts of the person making the arrest did not appear to have been done within the scope of his authority. That it was quite as consistent with the conclusion that he acted from personal motives and for his own purposes as that he acted in the prosecution of any matter committed to his care by the defendant. In McKay v. Hudson River Line, 56 App. Div. 201, 67 N. Y. Supp. 651, held, that the action of a purser of a steamboat, in aid- ing in the search of a woman who, it was claimed, had stolen property, was not within the scope of his authority, that the act was not done in the performance of any duty which he owed the defendant, and that he had no authority from the defendant to act by reason of the woman having at the time of the alleged ar- rest passed from the pier. Where there was a dispute between a passenger and a con- ductor, as to whether the passenger paid his fare, and the con- ductor had the passenger arrested, it was held that he was acting within the scope of his authority, and that the railroad company was liable for the imprisonment. Rown v. Christopher, etc., Ry. Co., 34 Hun, 471. A railroad company is liable for false imprisonment by one of its employees while engaged in its business, whether the same is willful or malicious. One who is placed by such a company on its station platform with power to suppress disturbance is an em- ployee of the company, and the company is liable for the misuse of his authority. Shea v. Manhattan Ry. Co., 27 St. Rep. 33, 7 N. Y. Supp. 497, citing Stewart v. Brooklyn & Crosstown Ry. Co., 90 N. Y. 588. In Hamel v. Brooklyn, etc., Ry. Co., 6 N. Y. Supp. 102, the de- fendant was held liable for an illegal arrest by its servant, whether the defendant authorized the arrest or not. “If its employee acted within. the general scope of his duty, unjustifiably caused it (the arrest), the defendant must respond.” A railroad company is bound to protect its passengers while in transit from the violence committed by strangers and copassengers, 598 FALSE IMPRISONMENT. Art. 7. Liability for Acts of Servants and Agents. and must protect them: absolutely against the misconduct of its own employees and servants. Hence, if a passenger sustains dam- age by reason of the misconduct of an employee of the railroad company, it is immaterial whether the servant was acting within the scope of his employment or not. So held where the plaintiff was unlawfully arrested while a passenger on the defendant’s train by a detective in the employ of the defendant on a charge of theft. The case proceeds upon the theory that the wrong is in violation of contract of carriage. As to whether the act is in, vio- lation of such contract is for the jury. McLeod v. N. Y., C. & St. L. BR. BR. Co., 72 App. Div. 116, 76 N. Y. Supp. 347, 110 St. Rep. 34. Where a special officer of a railroad testified that his duties ‘were to watch for people stealing coal, and if he caught them to dock them up,— Held, that it could not be deemed a matter of law that in arresting a person several blocks from the premises of the railroad company he acted outside of the scope of his authority. That presuming his instructions limited his authority to the prem- ises of the railroad company, they were, nevertheless, responsible because the act was within the general scope of the employment, and even though some particular direction had been disregarded. Kastner v. L. I. Ry. Co., 76 App. Div. 323, 78 N. Y. Supp. 469, 112 St. Rep. 469. For a case where a railroad corporation was held liable for the wrongful imprisonment of plaintiff by a policeman and detective in the employ of defendant, see Fitzpatrick v. N. Y. & M. B. R. R. Co.,5 N. Y. Supp. 685, affirmed without opinion 125 N. Y. 682. For former appeals in the same case, see 15 Week. Dig. 506, affirmed 101 N. Y. 617. Although defendant corporation provides a room in its prem- ises for a police station, it is not responsible for the arrest of a person not a guest by an officer who is not shown to have been employed by the defendant. Fitzpatrick v. N. Y. d N. B. R. R. Co., 15 Week. Dig. 506. Where a railroad corporation may lawfully lease its road to another company, and the lessor takes possession and manages and operates the railroad, the lessor is not liable to a passenger for injuries sustained by reason of the wrongful acts of the lessee’s servants. Fisher v. Metropolitan El. Ry. Co., 34 Hun, 433. Mott v. Consumers’ Ice Co., 73 N. Y. 548, though not a case involving false imprisonment, is in point upon the general ques- FALSE IMPRISONMENT. 599 Art. 7. Liability for Acts of Servants and Agents. tion as to when a servant charges his master with liability for his acts. The test is whether the wrongful act was in the course of the employment, or outside of it. See also Stewart v. Brooklyn, etc., Ry. Co., 90 N. Y. 588, which, although involving a question of liability for assault and battery, is relevant on the question as to when a servant is acting within the scope of his authority. See also Dwinelle v. N. Y. C. & H. BR. BR. Co., 120 N. Y. 117. On the question of the liability of a corporation for the tortious act of its servant, see also Rounds v. D., L. & W. BR. BR. Co., 64 N. Y. 129. This case does not involve, however, the question of false imprisonment. The question as to whether a servant is act- ing within the scope of his authority so as to bind his master is ordinarily to be determined by the jury. Where the plaintiff, riding upon the defendant’s railway, had originally purchased a ticket, but lost it before reaching his desti- nation, and where he was arrested while attempting to pass through the gate at his destination without a ticket, it was held that the detention was unlawful, and that the defendant was re sponsible for the act of the gatekeeper. The case turns upon the theory that at the most the plaintiff was a debtor to the defend- ant for the amount of his fare, and that it could not be enforced. by imprisonment, but that the defendant should sue for the amount thereof. The court further says: “If the defendant had the tight to detain him to enforce payment of the fare for ten min- utes, it could detain him for one hour, or a day, or a year, or for any time until compliance with its demand. That would be arbi- trary imprisonment by a creditor without process or trial, to continue during his will until his debt should be paid. Even if a reasonable detention may be justified to enable the carrier to inquire into the circumstances it cannot be to compel payment of fare.” Lynch v. Metropolitan El. Ry. Co., 90 N. Y. 77, affirm- ing 24 Hun, 506. For a case where defendant, a corporation, was held liable for false imprisonment by instigating the arrest of servants of the corporation, see Midford v. Kann, 32 App. Div. 228, 52 N. Y. Supp. 995. For a case where it was held that the arrest of the plaintiff was not shown by the record to be at the instigation of the defend- ant corporation, see Noad v. Canadian Pacific R. R. Co., 56 App. Div. 33, 67 N. Y. Supp. 265, 101 St. Rep. 265. 600 FALSE IMPRISONMENT. Art. 7. Liability for Acts of Servants and Agents. SUBDIVISION 2. Liability of Individuals and Copartners for Acts of Servants. Mallach v. Ridley is reported on first appeal, 43 Hun, 336, where the judgment was reversed for error in charge and excessive damages. Second appeal is reported, 24 Abb. N. C. 172, where it was held that inasmuch as a storekeeper invites the public to enter his premises, and subject themselves to the custody and con- trol of his subordinates, like a carrier of passengers, he should be held responsible like a carrier for all the acts of the subordinates toward one who accordingly enters, even when such acts are committed within the strict line of employment. Held, that where a floorwalker was accustomed to see customers and give directions to the saleswomen, and also to look out for thieves and pickpockets, and to watch people and ascertain if they con- duct themselves lawfully, it was sufficient to make it a question for the jury whether he was instructed to detain suspected per- sons. The court said: “ The floorwalker evidently had the right to arrest and apprehend thieves, and under that authority if he apprehended an innocent person his employers are necessarily responsible. They cannot confer such an authority upon the em- ployee, and claim the benefits of his action when he acts advisedly and absolve themselves from all risk when he acts on insufficient evidence.” In Mali v. Lord, 39 N. Y. 381, it was held that while a man is responsible civilly for the wrongful act of his servant committed in the transaction of his business, he is not responsible for the willful injury committed by the servant while so engaged, unless he so act by the express or implied authority of his employer; and that where the superintendent and clerks of the firm directed a policeman to arrest and examine the person of a woman sus- pected of stealing goods which was so done without the knowledge or express or implied knowledge of the owners of the goods, that the master was not liable. That the servant is not impliedly au- thorized to do that which the master himself, being present, would not be authorized to do. This case is distinguished in Palmeri v. Manhattan Ry. Co., 133 N. Y. 261, opinion Gray, J., in which he says that Judge Andrews in founds v. D., L. @ W. R. RB. Co., 64 N. Y. 129, points FALSE IMPRISONMENT. 601 Art. 7. Liability for Acts of Servants and Agents. out the distinguishing principle of the cases as to the authority of a servant. In Dupre v. Childs, 52 App. Div. 306, at p. 309, 65 N. Y. Supp. 179, Ramsey, J., says of Mali v. Lord, supra, that while it was undoubtedly well decided upon the facts made there to appear, it would not now be said to be an accurate statement of the law as to the responsibility of the master as to the wrongful act of his servant. That the later cases which are cited in the opinion have laid down the rule in such different terms that Mali v. Lord must be assumed to have been considerably limited. Du- pre v. Child was affirmed 169 N. Y. 585, on opinion below, so that Mali v. Lord may be regarded at least as limited by the Court of Appeals. It was held that where the defendant’s cartman caused the plaintiff’s arrest for refusing to pay the value of goods marked “C. O. D.” by error of the defendant, when, as a matter of fact, the only sum due was difference between the price of an article delivered and one returned, the defendant was liable. The driver acted within the scope of his authority. Craven v. Bloomingdale, 54 App. Div. 266, 66 N. Y. Supp. 525, 100 St. Rep. 525, affirming 30 Mise. Rep. 650, reversed 171 N. Y. 439, where it is held that while a master is liable in compensatory dam- ages for an illegal arrest caused by his servant, if his manner of conducting business justified the jury in believing that the ser- vant in causing such arrest was acting within the scope of his employment, aud discharging the ordinary duties upon him, the employer cannot be held liable for punitive or vindictive damages, and that it is reversible error for the trial court, after instructing the jury as to the law of compensatory damages, to instruct them that they also had the power, if they thought proper, to award punitive damages, without further instructing them that such damages should not be awarded unless there was proof showing that the acts of the servant were wanton, oppressive, or malicious, and that the master was implicated with the servant therein, or had either expressly or impliedly authorized or ratified them. The court distinguishes the case from Stevens v. O'Neil, 51 App. Div. 364, 64 N. Y. Supp. 663, affirmed 169 N. Y. 375, saying, that in the Stevens Case, the plaintiff had been arrested in the store of the defendant under circumstances peculiarly dis- tressing and humiliating, and citing from opinion of Van Brunt, 602 FALSE IMPRISONMENT. Art. 7. Liability for Acts of Servants and Agents. P. J., in the Appellate Division, as follows: ‘ Although there was no evidence of any express malice against the plaintiff indi- vidually, the act was done in pursuance of a system which had been adopted in that store, and if that system was such as to place an innocent customer in the position in which the plaintiff’s evi- dence showed that she was placed, the jury had the right to say that the results of this system were of such a character as to require rebuke by way of punitive damages, in order that innocent people should not be placed in the position which this plaintiff was placed without any fault on her part.” The rule as to the master’s liability for the arrest by a servant is thus laid down in Fogarty v. Wanamaker, 60 App. Div. 4383, 69 N. Y. Supp. 883, 103 St. Rep. 883: “ The better rule appears t> be that while the master is not responsible for the willful wrong of the servant, not done with a view to the master’s ser- vice, or for the purpose of executing his orders, if the servant authorized to use force against another, when necessary in exe- cuting his master’s orders, and if, while executing such orders, through misconduct or violence of temper, the servant uses more force than is necessary, the master is liable. So if the master puts the servant in a place of trust or responsibility, or commits to him the management of his business or the care of his property, he is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the oceasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury upon another.” Proprietors of a restaurant are liable for illegal arrest by a general manager. The existence of a rule that such manager should not leave the restaurant until he had been relieved does not excuse the proprietor from liability in a case where the manager had the plaintiff arrested on the sidewalk. Dupre v. Childs, 52 App. Div. 306, 65 N. Y. Supp. 179, 99 St. Rep. 179, affirmed 169 N. Y. 585, on opinion below. A master is liable for false imprisonment by his servant while acting within the scope of his duty. So held where the defend- ant was a saloon-keeper, and the manager of his business caused arrest of plaintiff. Fortune v. Trainer, 47 St. Rep. 58, affirmed without opinion 141 N. Y. 605. Where the defendant, the owner of a pleasure resort, made an FALSE IMPRISONMENT. 603 Art. 8. Liability of Attorney and Client. agreement with one Pinkerton, under which the latter was to furnish the needed police, the defendant was held liable for the wrongful arrest of a ticket-taker on the charge of stealing tickets, the arrest being made by the captain of the police. Clark v. Starin, 47 Hun, 345. See Art. X, Subd. 4, “ Arrest by Agent.” ARTICLE VIII. LIABILITY OF ATTORNEY AND CLIENT. One who issues process does not become liable for acts in excess of the lawful authority of the officer acting thereunder. There fore an attorney, acting under instruction from his client, unlaw- fully procuring the issuance of a body execution is not liable for damages by reason of his confinement by the sheriff among thieves and criminals. For that violation the sheriff alone is re- sponsible. Baker v. Secor, 22 St. Rep. 97, 4 N. Y. Supp. 308. It has been held that the circumstances of an attorney’s name being subscribed to a process on which an illegal arrest is made, without other proof of his conduct, is not sufficient to charge him in an action for false imprisonment. Griswold v. Sedgwick, 1 Wend. 127. Though it seems that where an attorney makes out an illegal writ and delivers it to the officer for execution, he is liable. Cit- ing Baker v. Braham & Norwood, 3 Wils. 368. Attorney and client procuring an illegal arrest are joint tort feasors, and an assignment of the judgment against the attorney for false imprisonment to his client discharges the attorney. Baker v. Secor, 28 St. Rep. 923, 7 N. Y. Supp. 803, 22 St. Rep. 97,4 N. Y. Supp. 303. As to when attorneys are not liable for false imprisonment in opposing a motion to discharge plaintiff, who was arrested for a contempt, see Fischer v. Langbein, 103 N. Y. 84, affirming 13 Abb. N. C. 10. A party liable for false imprisonment cannot escape liability by throwing the responsibility upon his attorney. Ackroyd v. Ackroyd, 3 Daly, 38. Where a creditor directs the issuance of an illegal body execu- tion he thereby becomes a joint tort feasor with his attorney. Baker v. Secor, 22 St. Rep. 97, 4 N. Y. Supp. 303. Where in a prior action the defendants had obtained attach- ment against the person of A., and their attorneys wrongfully in- 604 FALSE IMPRISONMENT. Art. 8. Liability of Attorney and Client. structed the sheriff as to the identity of the person, so that he arrested the plaintiff, it was held that the defendants were not liable for the act of their attorney as he had no authority, either express or implied, to arrest the plaintiff. Gearon v. Bank of Savings, 50 N. Y. Super. 264. It seems that the issuing of a body execution by an attorney for a judgment creditor is within the scope of his implied authority, and when such execution is issued and the debtor arrested in a case where it is not authorized, the client may be liable although there is no evidence that he directed the issuing of the execution. Guilleaume v. Rowe, 94 N. Y. 268, affirming 48 N. Y. Super. 169. It was also held in that case that where a judgment creditor countermanded the execution and directed the sheriff to discharge the prisoner if he would sign a stipulation not to sue for false imprisonment, and the prisoner signed and was not discharged, that the release was void for duress. Compare Welch v. Cochrane, 63 N. Y. 181. An attorney who causes a void or irregular process to be issued in a case which causes loss or injury to the party against whom it is enforced is liable for the damages occasioned thereby. In the case of void process the liability attaches when the wrong is com- mitted, and no preliminary proceeding is necessary to vacate or set it aside, as a condition to the maintenance of the action. Where, however, the court has jurisdiction to award the process, and the same is irregular by reason of nonperformance by the party procuring, or of some preliminary requisite, the same must be regularly vacated or annulled by order of the court before an ac- tion can be maintained. In such cases the process is considered the act of the party and not that of the court, and he will be liable for the consequences. Fischer v. Langbein, 103 N. Y. 84, affirm- ing 13 Abb. N. C. 10, 2 St. Rep. 768. The court thereupon defines a void process as process in which “the court has no power to award, or has not acquired jurisdiction to issue in the particular case, or which does not in some material respect comply:in form with the legal requisites of such process, or which loses its vitality in consequence of noncompliance with a condition subsequent, obedience to which is rendered essential. Irregular process is such as a court has general jurisdiction to issue, but which is unauthorized in the particular case by reason FALSE IMPRISONMENT. 605 Art. 9. Arrest by Military Authorities. of the existence or nonexistence of some fact or circumstance ren- dering it improper in such a case. In all cases where a court has acquired jurisdiction in an action or proceeding its order made or judgment rendered therein is valid and enforceable, and af- fords protection to all persons acting under it, although it may afterward be set aside or reversed as erroneous. Errors com- mitted by a court upon the hearing of an action or proceeding which it is authorized to hear, but not affecting any jurisdictional fact, do not invalidate its orders or authorize a party to treat them as void, but can be taken advantage of only by appeal or motion in the original action. Fischer v. Langbein et al., 103 N. Y. 90, citing Day v. Bach, 87 N. Y. 56; Simpson v. Hornbeck, 8 Lans. 53; Fischer v. Raab, 81 N. Y. 235; Rutherford v. Holmes, 66 N. Y. 370. ARTICLE IX. ARREST BY MILITARY AUTHORITIES. Civil courts have uniformly declined to interfere with acts affect- ing military rank or status, or for offenses against articles of war or military discipline. See Johnstone v. Sutton, 1 T. R. 546; United States v. Mackenzie, 1 N. Y. Leg. Obs. 227, 371. But as to a malicious exercise of authority by a military officer or for acts in excess of authority, though done in good faith, see Tyler v. Pomeroy, 8 Allen, 480; Dynes v. Hoover, 20 How. (U. 8.) 65; Wise v. Withers, 3 Cranch, 837; Mallory v. Merrit, 17 Coun, 178; Warden v. Bailey, 4 Taunt. 67. But in general great latitude is allowed in passing upon the legality of the acts of military officers in discharge of duty in times of public peril. See Clow v. Wright, Brayt. (Vt.) 118; Teagarden v. Graham, 31 Ind. 422; Hawley v. Butler, 54 Barb. 490; s. c., 48 Barb. 101; Hickey v. Huse, 58 Me. 493; Oglesby v. State, 39 Tex. 58. If a court-martial arrest and imprison a private person for an offense even within its jurisdiction, it is false imprisonment. Smith v. Shaw, 12 Johns. 257. Thus, where a person was arrested as a deserter, who turned out to be a civilian, the person who arrested him was held responsible. (English case.) 2 Addison on Torts (Wood’s ed.), § 818. 606 FALSE IMPRISONMENT. Art. 10. Defenses. ARTICLE X. DEFENSES. aunt Sugprvision 1. Want of probable cause ...... ....-2+--- 606 2. Lawful authority and justification ......... 607 3. Consent of plaintiff ...........-2 eee eee 608 4. Arrest by agent ........ ee eee eee cece 609 5. Defense of person or property ........... 610 6. Detention not terminated ............... 611 7. As to advice of counsel .........---+-05- 611 SUBDIVISION 1. Want of Probable Cause. For various cases involving the defense of probable cause, see authorities cited under previous articles. The right to arrest without a warrant depends upon the relation of the attending circumstances to the specific question. There can be no general right to arrest citizens for an undisclosed of- fense. The statute requires the officer to inform the arrested per- son of his authority and the cause of his arrest, except where the person arrested is arrested in the actual commission of the crime. A man eannot be arrested for one cause and when that fails the defendant justify his arrest for another cause. So held, where the plaintiff was arrested on suspiction of having in his possession jewelry, not belonging to him, and such charge was made against him. On his examination at the headquarters, it was found that he was carrying concealed weapons, which is a misdemeanor. It was held that the arrest for the first cause could not be subsequently justified on the latter grounds. Snead v. Bonnoil, 49 App. Div. 330, 97 St. Rep. 553, 63 N. Y. Supp. 553, affirmed 166 N. Y. 325. See Savage v. McMillan, 37 App. Div. 103, 55 N. Y. Supp. 1055, for a case where it was held that no probable cause was proven. A contractor engaged to tear down a public building was, by his contract, to have the benefit of the materials. While dispos- ing of such material he was arrested on charge of grand larceny, preferred by superintendent of public parks. It was held that, under the circumstances, no probable cause was shown, and that the plaintiff was entitled to recover, the only question for the jury to consider being that of damages. FALSE IMPRISONMENT. 607 Art. 10. Defenses. In order that probable cause be a defense in an action for false imprisonment, it is needful that a felony should have actually been committed. Thorne v. Turck, 13 Week. Dig. 550. The absence of probable cause must be averred and proved. Hawley v. Butler, 54 Barb. 490. ” Where an arrest is made by a private person, probable cause or grounds for suspicion afford no justification unless a felony has been actually committed, and the burden of proving the commis- sion of a felony is upon the defendant. Burns v. Erbin, 40 N. Y. 466. Where a private person seeks to justify an arrest or aiding in the arrest of another without warrant, on a criminal charge, it must appear that a felony had been committed and that he acted circumspectly, and upon grounds which would have justified a careful and prudent person in believing that the person arrested was guilty of the crime. The burden is upon him to show that the circumstances justified the situation, and if this is made to ap- pear, he is not liable, although the accused was in fact innocent. Farnam v. Feeley, 56 N. Y. 453, citing Holley v. Mix, 3 Wend. 354; Brackett v. Eastman, 17 Wend. 32; Carl v. Ayres, 53 N. Y. 14; Addison on Torts, 555. SUBDIVISION 2. Lawful Authority and Justification. Where a warrant, under which an arrest was made, shows a case which comes within the jurisdiction of a justice issuing it, although it does not recite a legal offense, the officer is protected in acting under it, and it is error to refuse a nonsuit. Smith v. Warden, 4 Hun, 787. A person has no right to arrest a mere trespasser’ who offers no violence, and is liable for false imprisonment for such an arrest. Midford v. Kann, 32 App. Div. 228, 52 N. Y. Supp. 995. For cases where it was held that an assistant clerk of a police magistrate was justified in removing a person from the court- room on his own responsibility, see Hopner v. McGowan, 116 N. Y. 405. Where the defendant was sued for imprisoning the plaintiff under an attachment which had been set aside, it is sufficient to show that the order setting it aside was not legally made. Lewis v. Penfield, 39 How. Pr. 490. Nor will false imprisonment lie where the process was irregular, 608 FALSE IMPRISONMENT. Art. 10. Defenses. if it is merely set aside upon other grounds. Nebenzahl v. Town- send, 61 How. Pr. 353. An action can only be maintained where the arrest was unlaw- ful and without authority of law, and if the complaint and affi- davits show that the arrest was lawfully effected, a nonsuit should be granted. Warren v. Dennett, 13 Misc. Rep. 329, 34 N. Y. Supp. 462, 68 St. Rep. 366. For a case where the defendant was held to be justified in caus- ing plaintiff’s arrest for failing to return a horse and wagon, hired of the defendant, see Olmstead v. Dolen, 25 St. Rep. 634, 6 N. Y. Supp. 130. An arrest made upon a void warrant cannot be justified as an arrest for a different cause. J/urphy v. Kron, 20 Abb. N. C. 259. A criminal conviction of the plaintiff by a police justice hav- ing no jurisdiction is no evidence of his guilt, and thus is not a defense in an action for false imprisonment. Kolzern v. Broad- way, etc., Ry. Co., 1 Misc. Rep. 148, 48 St. Rep. 656, 20 N. Y. Supp. 700. An action for false imprisonment was held not to lie where it appeared that the arrest had been made on the ground that the plaintiff obtained goods upon false pretenses as to his. responsi- bility, and where it appeared that to obtain such goods the plain- tiff had represented himself as controlling considerable amount of property, and yet within four months thereafter had failed for a Jarge amount, owing bills contracted prior to the failure. Moses v. Dickinson, 2 City Ct. 184. In an action for false imprisonment justification must be spe cifically alleged. Brown v. Chadsey, 39 Barb. 253. SUBDIVISION 3. Consent of Plaintiff. In Warren v. Dennett, 17 Misc. Rep. 88, 39 N. Y. Supp. 830, it was held that where the plaintiff was arrested by the defend- ant for refusing to pay ten cents extra in a restaurant, but paid the same at the police station, that if it was a voluntary payment and a settlement of the difference, that then the plaintiff could not recover; but if it was brought about by fear, threat, coercion, and duress, then the defendants were liable, and where the evi- dence upon this point is complicated, it is a proper question for the jury. FALSE IMPRISONMENT. 609 Art. 10. Defenses. It is no defense to an action against the officers of a bank that a person was imprisoned by the locking of the doors at the usual time, although he knew the time at which the bank usually closed. Woodward v. Washburn, 3 Den. 369. Where a person was arrested for hawking, in violation of a vil- lage ordinance, and though first pleading not guilty to the charge, paid the fine imposed, it was held that such plea, together with the payment of the fine, etc., effectually barred the action on his part for false imprisonment. Jones v. Foster, 48 App. Div. 33, 59 N. Y. Supp. 738, citing Cuniff v. Beecher, 84 Hun, 137, 32 N. Y. Supp. 1067; Robbins v. Robbins, 133 N. Y. 597; Oppen- heimer v. Manhattan Ry. Co., 45 St. Rep. 134, 18 N. Y. Supp. 411. For defenses founded upon the theory that there was no com- pulsion, and that the plaintiff voluntarily submitted to the im- prisonment, see cases cited under ‘“* Elements Necessary to False Imprisonment — Compulsion Necessary.” SUBDIVISION 4. Arrest by Agent. A recovery for false imprisonment obtained against a detective who verified an information prepared by the district attorney, em- bodying the results of his investigation, was reversed upon the ground that the application for such warrant was not really made by the detective, but by the district attorney, in his official ca- pacity. Whitney v. Hanse, 36 App. Div. 420, 55 N. Y. Supp. 375. A railroad company has been held not to be bound by the unau- thorized arrest, in its station, of one not a passenger, which arrest was made by a railroad detective. Such arrest was not within the scope of his authority. Penny v. VN. Y. C. & H. BR. RB. R. Co., 34 App. Div. 10, 53 N. Y. Supp. 1043. The question as to the liability of one partner for the false im- prisonment, caused by another, is considered by the court in Farrell v. Friedlander, 63 Hun, 256, 18 N. Y. Supp. 215, where the court said that there is a line of cases which go to the length of holding the joint liability of partners, as stated in Abbott’s Trial Brief, p. 217, as follows: “If the act itself was one within the scope of the business and done as such, then it is not material that the other partners were ignorant and innocent, nor that it was willful; otherwise if the act was wholly foreign to the business, 39 610 FALSE IMPRISONMENT. Art. 10. Defenses. If the act was presumptively a partnership act, because, though not in the line of the trade, it was incidental to the exercise of an implied power — as where a partner in collecting a debt due the firm directs an officer to make a,tortious levy — then the act of one partner is presumptively that of all, and evidence that they, with knowledge of the facts, received the benefits of it, is conclusive against them.” The court says, however, that the principle under- lying the liability of one partner for the tort of another is governed by the principles of law of agency, and like the liability of a mas- ter for the tortious act of his servant is confined within the limits of the implied authority with which each partner is invested by virtue of the partnership relation. * * * “T can find, however, no case which goes to the extent of holding that the malicious prosecution of offenders has been admitted to be within the power constructively delegated to one partner as the agent of another.” See this case for a full discussion of the subject. See Mulligan v. N. Y. & R. B. Ry. Co., 129 N. Y. 506, re- versing 39 St. Rep. 20, 14 N. Y. Supp. 456, where it was held that a railroad corporation was not liable for an arrest by its ser- vant upon the ground that it was not shown that the servant was acting within the course of his employment at the time. Earl and Finch, JJ., dissenting. For a case where the defendant was held not to be liable for an arrest caused by its general superintendent, where a special agent was employed in that particular line of business, see Lub- liner v. Tiffany & Co., 54 App. Div. 326, 100 St. Rep. 659, 66 N. Y. Supp. 659. Where a passenger had left the wharf of the defendant steam- boat company and was followed by the purser, defendant’s agent, and told to come into the waiting-room, where the purser locked the door and investigated the contents of a satchel,— Held, that the act of the purser was not within the scope of his authority, and no action for false imprisonment could lie against the defend- ant company. McKay v. Hudson River Line, 56 App. Div. 201, 67 N. Y. Supp. 651, 101 St. Rep. 651. SUBDIVISION 5. Defense of Person or Property. One in peaceable possession of land is not liable for false im- prisonment in causing the arrest of a person who interferes forcibly with such possession. Coogan v. McArdle, 1 Rob. C. C. 281. FALSE IMPRISONMENT. 611 Art. 10. Defenses. As a simple trespass is not a crime one is liable for false im- prisonment, in having such a trespasser arrested. The defendant will be justified in using such force as is necessary to remove a trespasser, and if resistance is offered may increase such force. If violence is used against him while endeavoring to eject a tres- passer, it would be an assault, for which the party would be liable to arrest. Midford v. Kann, 32 App. Div. 228, 52 N. Y. Supp. 995. SUBDIVISION 6. Detention not Terminated. For defenses founded upon the fact that the criminal proceed- ings have not been terminated, see cases under title “ Elements of the Wrong — Termination of Detention.” A person cannot maintain a civil action for false imprisonment where his arrest has been followed by a conviction in a criminal court, and while that conviction remains unreversed, unless he shows that his conviction was obtained by fraud or conspiracy, and that fraud or conspiracy must be one in which the court and the person whom he proceeds against participate. Judgment of conviction of a criminal court cannot be attacked collaterally by the person convicted. The person who believes himself to have been unjustly convicted must procure a reversal of such convic- tion before he can maintain a civil action. Cunitff v. Beecher, 84 Hun, 137, 66 St. Rep. 199, 32 N. Y. Supp. 1067, citing Robd- bins v. Robbins, 183 N. Y. 593; Oppenheimer v. Manhattan El. Ry. Co., 18 N. Y. Supp. 411, 45 St. Rep. 134. SUBDIVISION 7. As to Advice of Counsel. It is no defense to an action for false imprisonment that the defendant acted under advice of counsel. Ackroyd v. Ackroyd, 3 Daly, 38. The advice of counsel is no defense unless it be shown that the same was given after a full and fair statement of the facts. Davidoof v. W. & W. Mfg. Co., 14 Mise. Rep. 456, 35 N. Y. Supp. 1019. Compare the same subject in “ Malicious Prose- cution.” 612 FALSE IMPRISONMENT. Art. 11. Imprisonment of Various Classes of Persons. ARTICLE XI. IMPRISONMENT OF VARIOUS CLASSES OF PERSONS. . PAGE. Suspivision 1. Wives, children, servants .............6. 612 2. Insane and dangerous persons ............ 612 8. Witnesses and persons privileged from ar- POSE Meavastie ees dra Saas eee eat igre ie eee 614 SUBDIVISION 1. Wives, Children, Servants. Where a husband had procured an absolute divorce from his wife, and where the decree awarded the custody of the children to him, and the wife subsequently obtained possession of one of the children, refusing to give him up, the husband was held liable for false imprisonment where he called a policeman and caused the arrest of the mother. The court says: “ The defendant mis- took his remedy. He should have taken the child by force, if the decree allowed him, in a gentle manner, but he could not arrest the plaintiff because she refused to voluntarily give up the child.” Monjo v. Monjo, 538 Hun, 145, 6 N. Y. Supp. 132. A master may maintain an action against one who imprisons his servant for loss of the services occasioned thereby. Woodward v. Washburn, 3 Den. 369. SUBDIVISION 2. Insane and Dangerous Persons, By virtue of section 223 of the Penal Code force and violence used toward the person of an idiot, lunatic, insane person, etc., to prevent him from committing an act dangerous to himself or another, is not unlawful. But this section is more applicable to actions involving assault and battery, for by section 377 of the Penal Code, a person “ who confines: an idiot, lunatic, or insane person in any other manner or in any other place than is author- ized by law * * * is guilty of a misdemeanor.” In regard to the commitment, care, and discharge of the insane, see Insanity Law, §§ 60-77. Where the plaintiff alleges that defendant physicians falsely and maliciously signed a certificate whereby he was imprisoned as insane in a hospital, the gist of the action is false imprisonment. Hurlehy v. Martin, 31 St. Rep. 471, 10 N. Y. Supp. 91. FALSE IMPRISONMENT. 613 Art. 11. Imprisonment of Various Classes of Persons. There is a presumption in favor of the validity of a warrant. Where a lunatic was arrested upon a warrant. issued by two police justices of the city of Albany upon a complaint and certificate of two reputable physicians, it was held that every intendment was in favor of the jurisdiction of the magistrates, and from the fact that the warrant was issued in the city of Albany it was to be presumed that the lunatic was there at the time the warrant was issued, and that a mere statement of the warrant that the lunatic was at the town of Knox was merely a description of the person, and did not contradict the fact that he was in Albany when the warrant was issued, Making a complaint that a person is a lunatic before a magis- trate, who then authorized the arrest of the alleged lunatic as such, is not in itself sufficient ground for an action of false imprisonment. Nor is the additional fact that the complainant hands the warrant to an officer sufficient, and the officer executing such a warrant is not bound to look beyond the same, if it is regular upon its face. Williams v. Williams, 4 T. & C. 251, 2 Hun, 111. A private person who, without judicial warrant or process, on his own motion, interferes with the liberty of an alleged lunatic, takes the responsibility of his error of judgment. But where restraint was demanded by necessity for the care and safety of the individual restrained, or for the protection of others, there is not actionable trespass. Emmerich v. Thorley, 35 App. Div. 452, 54 N. Y. Supp. 791, citing 2 Addison on Torts, 28; Look v. Dean, 108 Mass. 116; Colby v. Jackson, 12 N. H. 529; Fletcher v. Fletcher, 28 L. J. (Q. B.) 136. Where a son-in-law procured the imprisonment of his father- in-law, upon the grounds of insanity on his own verified petition, and on a defective certificate of two physicians,—Held, that he was liable. That the petition and the certificate did not confer juris- diction upon the county judge under section 2 of the Insanity Law, as under such section a son-in-law has no authority to make the application, and also because the certificate of the medical examiners did not show that the plaintiff was insane, as required by section. 61. Washer v. Slater, 67 App. Div. 385, 73 N. Y. Supp. 425, 107 St. Rep. 425. Where a judge before whom a proceeding i is instituted for the commitment of a lunatic, under the statute, errs in his judgment as to whether the facts presented do or do not confer jurisdiction, he is not liable to an action for false imprisonment for committing 614 FALSE IMPRISONMENT. Art. 11. Imprisonment of Various Classes of Persons. such person as insane. But a physician signing a certificate in such proceeding to the effect that the person is insane is not in law acting as a judicial officer, but as a medical expert, and has not the judicial immunity. He is chargeable with neglect, which, in the case of a professional expert, would render him liable for failure to use the skill and care required in his profession. Ayers v. Russell, 50 Hun, 282, 3 N. Y. Supp. 338. This case also construes the statute, chapter 446 of Laws of 1874, and holds that under such statute it is discretionary with the judge whether or not he shall call a jury to determine the ques- tion of lunacy. For a case turning upon the right of a physician to confine a person supposed to have the small-pox, see Ryder v. Fuller, 13 Hun, 669. The General Term held, that under the evidence the court was not prepared to say that a verdict which charged the defendant with $500 damages was against the weight of evidence. A new trial, however, was given, on the ground that there had been an error in the admission of evidence on the question of damages. The defendant did not plead justification, and thus was not per- mitted to show that he acted under authority, and thus was techni- cally Tiable, but, as the court said, only for compensatory dam- ages for the consequences of his own acts so long as the same were in good faith. Although a commissioner of health of a city may be authorized by statute, in case of impending pestilence, to take such measures as he may, with the approval of the mayor and president of the medical society, declare the public health and safety require, and require the isolation of all persons and things infected or ex- posed to such disease — yet he is only authorized to quarantine an individual who has been exposed to the disease under condi- tions which would permit communication of the disease. The mere possibility that the individual might have been exposed to the disease is insufficient. Smith v. Hmery, 11 App. Div. 10, 42 N. Y. Supp. 258. SUBDIVISION 3. Witnesses and Persons Privileged from Arrest. Exemption from arrest is a personal privilege, which may be waived, and it will be deemed to have been waived unless the party avail himself of the privilege at the first opportunity to assert it and obtain his liberty. Dow v. Smith, 7 Vt. 465; Hess v. Morgan, 3 Johns. Cas. 84. FALSE IMPRISONMENT. 615 Art. 11. Imprisonment of Various Classes of Persons. Section 860 of the Code of Civil Procedure exempts witnesses from arrest. § 860. Witness exempt from arrest.— A person duly and in good faith subpcenaed or ordered to attend, for the purpose of being ex- amined, in a case where his attendance may lawfully be enforced by attachment, or by commitment, is privileged from arrest in a civil action or special proceeding, while going to, remaining at, and re- turning from, the place where he is required to attend. By virtue of section 861 a person so arrested may be discharged. § 861. When to be discharged from arrest.— The court, from which a subpoena, served in good faith, was issued, or by which an order was made, requiring a person to attend, for the purpose of being ex- amined; or a judge thereof, upon proof, by affidavit, of the facts, must make an order, directing the discharge of a witness or other person, from an arrest made in violation of the last section. § 862. By whom witnesses may be discharged.— A justice of the Supreme Court, in any part of the State, or a county judge, has the like authority as a judge of the court, to make an order for a dis- charge, in a case specified in the last section. Upon satisfactory proof, by affidavit, of the facts, he must also make an order, directing the discharge of a person arrested, in violation of section 860 of this act, where a subpcena, served in good faith upon the person arrested, was issued as prescribed in section 854 of this act. § 863. Arrest, when void; penalty.— An arrest, made contrary to the foregoing provisions of this title, is absolutely void, and is a con- tempt of the court, if any, from which the subpoena was issued, or by which the witness was directed to attend. An action may be maintained, by the person arrested, against the officer or other person making such arrest, in which the plaintiff is entitled to recover treble damages. A similar action may also be maintained, in a like case, by the party in whose behalf the witness was subpcenaed, or the order procured, to recover the damages sustained by him, in conse- quence of the arrest. It will be noted that section 863 gives to the plaintiff so ille gally arrested an action against the officer or other person making such arrest, and a similar action also lies on behalf of the party in whose behalf the witness was subpeenaed. But by virtue of section 864 the sheriff or other officer or per- son is not so liable unless the person claiming the exemption makes an affidavit, if required, to the effect that he was illegally sub- penaed, etc. § 864. Sheriff not to be liable unless affidavit is made.— But a sheriff or other officer, or person, is not so liable, unless the person claiming an exemption from arrest, makes, if required by the sheriff 616 FALSE IMPRISONMENT. Art. 12. Parties. or officer, an affidavit, to the effect that he was legally subpcenaed or ordered to attend, and that he was not so subpcenaed or ordered by his own procurement, with the intent of avoiding arrest. In his affidavit, he must specify the court or officer, the place of attendance, and the cause in which he was so subpoenaed or ordered. The affidavit may be taken before the officer arresting him, and exonerates the officer from liability for not making the arrest. In Kreiser v. Scofield, 10 Mise. Rep. 350, 63 St. Rep. 413, 31 N. Y. Supp. 23, reversing 9 Misc. Rep. 200, 60 St. Rep. 839, 29 N. Y. Supp. 685, it was held that at common law the arrest of a privileged person is voidable only and not void and does not constitute trespass, and is insufficient to support an action for false imprisonment. Sections 863, 864 of the Code, however, au- thorize such an action for such arrest and give treble damages. In the Kreiser Case it seems to be held that the action was con- ducted as a common-law action, and that no reference was made to the statute; therefore the statute could not be invoked because there was no such rule at common law. It seems also that the statutory action lies only against the officer or person making the arrest, and even they are not liable unless the person arrested claims his exemption and makes an affidavit, if required. It fol- lows, therefore, that the statutory action does not lie either against the plaintiff, who has procured the arrest in the action, or against the plaintiff’s attorney. See this case also for circumstances under which the privilege terminates and expires. For decisions turning upon the arrest of persons privileged under the old £10 Act, see Percival v. Jones, 2 Johns. Cas. 49; Hess v. Morgan, 3 Johns. Cas. 84. ARTICLE X11. PARTIES. aoe Susprvision 1. Plaintiffs .............. HSER ORE ED LO 2. Party instigating iniprizomment ce eee wine 617 8. Joinder of defendants ........ceeceeees+ 618 SUBDIVISION 1. Plaintiffs. This action like other torts for a personal injury, being non- assignable, must be brought by the party imprisoned. But the FALSE IMPRISONMENT. | 617 Art. 12. Parties. wrong may be accompanied by loss to third persons standing in domestic or contractual relations to the person imprisoned. The injury in such case is, in the theory of law, an injury to property rights, and the action is not for the personal injury. Thus, while an action for false imprisonment may be main- tained against the putative father of an illegitimate child who re- tains its custody without right and against the consent of the child, the action can be brought only in the name of the child, whose rights were violated, and the recovery is for the benefit of the infant, and not for the benefit of the mother. If such parent sustain injury for the loss of services or medical attendance, the proper action is upon the case. The action for personal injury can only be brought in the name of the child. Robaling v. Arm- strong, 15 Barb. 248, citing Reeves’ Dom. Rel. 291; Whitney v. Hitchcock, 4 Den. 461; Cowden v. Wright, 24 Wend. 429; Bart- ley v. Richtmeyer, 4 N. Y. 48. The proper parties plaintiff in an action for injury done to a slave, servant, apprentice, or minor child, is well stated in the case of Woodward v. Washburn, 3 Den. 371: “It is a general prin- ciple that an action lies * * * in favor of the party who stands in place of the parent, by reason of which he sustains a loss of service, or has been put to expense in sickness and providing medical aid. But for the direct personal injury the person upon whom it is inflicted is entitled alone to the action and to the dam- age then recovered. The master or parent’s right to recover rests upon the ground that he has been deprived of some services to which he was entitled, or has been put to some expense.” It was further held that the hiring of a person of full age for wages creates the relation of master and servant, and will enable the former to maintain an action on the case against one who im- prisons such person, resulting in a loss of his services. See this ease also for the distinction between servants and employees. SUBDIVISION 2. Party Instigating Imprisonment. In trespass all who aid or assist are principals. Hence, one who directs the imprisonment of another is guilty of the imprison- ment. So held in a case where the superintendent of police told an officer who made the arrest to take the prisoner back and lock him up. Such superintendent will not be permitted to show that 618 FALSE IMPRISONMENT. Art. 12. Parties. the act was not in consequence of his request, for he cannot direct a trespass, and after its commission escape, upon the ground that the officer violated his duty in obeying the direction. Greene v. Kennedy, 46 Barb. 16, affirmed 48 N. Y. 653. A defendant, therefore, who directs an arrest and imprison- ment is liable. In contemplation of law, he committed those acts; and no man is allowed to incite another to trespass, and after its commission, to give his want of influence in evidence in bar of the action. Such a principle will enable a man to encourage an- other to commit murder, in his presence, and then escape, upon the ground that the homicide was malicious enough to have done the same thing if he had remained silent. Coates v. Darby, 2 N. Y. 517, overruling Herrick v. Manly, 1 Cai. 553. Where a party is arrested under a warrant issued without juris- diction, the persons instrumental in procuring it to be issued are liable to an action for false imprisonment. Lansing v. Case, 4 N. Y. Leg. Obs. 221, 8 Law Rep. 451. One who directs a police officer to arrest another where the same is not justified is responsible for such arrest. Dodge v. Alger, 21 J. &8. 107. See also Wynn v. Hobson, 22 J. & S. 330. Even if the plaintiff is not arrested on the distinct order of the defendant, yet, if he subsequently ratify the act of the officer mak- ing the arrest, he is liable. Callahan v. Searles, 78 Hun, 238, 60 St. Rep. 214, 28 N. Y. Supp. 904. See authorities cited under previous articles. SUBDIVISION 3. Joinder of Defendants. Tn trespass, all who aid or assist are principals. Greene v. Ken- nedy, 46 Barb. 16, affirmed without opinion 48 N. Y. 653; Coates v. Darby, 2 N. Y. 519. All persons who accomplish, procure, aid, or assist in an unlaw- ful detention are liable as principals. Liability may also attach by ratification, or by virtue of relationship of parties. Hale on Torts, 246. Where a private individual directs an officer to arrest the plain- tiff for breach of peace committed before the officer’s arrival, which is done without a warrant and is illegal, both the private person and the officer are joint tort feasors. Wynn v. Hobson, 22 J. & 8. 830. FALSE IMPRISONMENT. 619 Art. 13. Pleading. As to the liability of officer issuing process without jurisdiction, together with the liability of the party at whose instance the proc- ess was issued, see Vredenburgh v. Hendricks, 17 Barb. 183, cited Merritt v. Reed, 5 Den. 352. See Vosburgh v. Welch, 11 Johns. 175; Miller v. Brinkerhoff, 4 Den. 116. In Holley v. Miz, 3 Wend. 351, it was said that this action is several as well as joint; that there can be but one assessment of damages; that, if an action be brought against two defendants, the plaintiff may elect to take his damages against either of them. If several damages are awarded by the jury, the plaintiff may cure the irregularity by entering a nolle prosequi against all but one, and take judgment against him alone. For a case where it was held that the complaint should be dis- missed as against one defendant, on the ground that there was no evidence to sustain the charge against him, see Carson v. Dessau, 36 St. Rep. 425, 138 N. Y. Supp. 282. ARTICLE XIII. PLEADING. Shee Souprvision 1. Complaint ....00ssecsees vss ves aber eiaiele 619 2, ANSWEP sidan Cae o Ra ee eee wesiene 623 2 DOMUITER cei ae es eae eee 624 SUBDIVISION 1. Complaint. Where an action is based upon the fact that the plaintiff was arrested in Saratoga county by defendant, a deputy sheriff of War- ren county, and was taken to and imprisoned in Warren county, an action may properly be brought in Saratoga county, as part of the cause of action arose there. Hillis v. Baker, 62 App. Div. 542, 71 N. Y. Supp. 88, 105 St. Rep. 88. It seems that causes of action of false imprisonment and ma- licious prosecution may be united in the same complaint. “ They are consistent with each other, and the one is not destructive of the other, and it has been the common practice to unite them.” Marks v. Townsend, 97 N. Y. 597, citing Doyle v. Russell, 30 Barb. 300; Burr v. Shaw, 10 Hun, 580; Dusenbury v. Keiley, 85 N. Y. 389; Carl v. Hyres, 53 N. Y. 14; Bradner v. Falkner, 93 N. Y. 515. 620 FALSE IMPRISONMENT. Art. 13. Pleading. Causes of action for false imprisonment and malicious prose- cution may be united in the same complaint, and are consistent with each other; but both actions cannot be maintained upon the same state of facts. Warren v. Dennett, 17 Misc. Rep. 87, 39 N. Y. Supp. 830, citing Marks v. Townsend, 97 N. Y. 594; Cunningham v. East River El. Co., 17 N. Y. Supp. 872; Ack- royd v. Ackroyd, 3 Daly, 38. See Warren v. Dennett, supra, for complaint which was held to state action for false imprison- ment. There is a dictum to the effect that a cause of action for false imprisonment and malicious prosecution cannot be alleged in different counts in the same complaint, in Nebenzahl v. Townsend, 61 How. Pr. 353, 12 Week. Dig. 511. The actions for false imprisonment and malicious prosecution may be united in one complaint, and the plaintiff cannot be com- pelled to elect between them. The court says that the early cases hold that the two cases are essentially distinct, and cannot be united in one complaint, but that the rule appears to have been changed. Thorpe v. Carvalho, 14 Misc. Rep. 557, 36 N. Y. Supp. 1, citing Code, § 484, subd. 2; Marks v. Townsend, 97 N. Y. 594; Cunningham v. East Rwer El. Co., 42 St. Rep. 212; Neill v. Thorne, 88 N. Y. 270. Where the complaint in a single count contains allegations which might be treated, either as for false imprisonment or for malicious prosecution,— Held, that a judgment should not be sustained unless the proof established both causes of action. So held in a case where the defendant failed to demur, and was not entitled to compel election at commencement of the trial, and where it was assumed from the record that both causes of action were submitted to the jury. Tyson v. Bauland Co., 68 App. Div. 310, 74 N. Y. Supp. 59, 108 St. Rep. 59. A cause of action for slander and one for faise imprisonment may be united in the same complaint, under section 487 of the Code. Held, also, that, on a motion to amend the complaint in the action for slander, the plaintiff should be allowed to add a count for false imprisonment. De Wolfe v. Abram, 6 App. Div. 172, 39 N. Y. Supp. 1029, reversed 151 N. Y. 186. Where the plaintiff joined actions for false imprisonment and malicious prosecution, and the court refused to dismiss the com- plaint as to the latter, and the jury found for the defendant FALSE IMPRISONMENT. 621 Art. 13. Pleading. thereon, it was held that it was so distinct from the other cause of action that the jury was not prejudiced by the ruling. Thorne v. Turck, 18 Week. Dig. 550. A complaint, in an action for false imprisonment, is defective which does not allege either that the imprisonment of the plaintiff was illegal or was procured without a warrant. A complaint which states that the plaintiff was arrested, that the arrest was caused by the defendant, and that, upon the trial, there was no sufficient cause to believe him guilty, and that he was discharged, does not show that the defendant may not have been arrested upon a warrant which was duly issued. In an action for malicious prosecution, the plaintiff must allege and prove that there was no probable cause for the prosecution, and that it was instituted through malice, and a mere allegation that the defendant maliciously charged the plaintiff with crime, does not relieve the latter from alleging a want of probable cause; an allegation that the charge was false, and that the plaintiff was acquitted, is not enough. Cousins v. Swords, 14 App. Div. 338, 43 N. Y. Supp. 907, affirmed on opinion below 162 N. Y. 625. A complaint which, among other things, alleges that the defend- ant deprived the plaintiff of her liberty for an hour “ without reasonable cause, and without any right or authority so to do,” not demurrable, as not stating a cause of action. It sufficiently alleges that the imprisonment was illegal. Bonnett v. Wanamaker, 34 Mise. Rep. 591, 70 N. Y. Supp. 372, 104 St. Rep. 372. An allegation that the defendant entered the plaintiff’s house and arrested her, and another allegation that they forcibly re- moved her therefrom and took her to jail, constitutes merely one cause of action. But an allegation of a conspiracy of two defend- ants to imprison the plaintiff, and that, in pursuance thereof, two other defendants were employed to mike the arrest, is not irrele- vant. It is not irrelevant to allege, in addition to a general aver- ment of personal injury, that the plaintiff was prevented from performing certain domestic duties. Haner v. Exner, 2 Abb. N. ©. 108. For the same principle, see Hyres v. Humphrey, 1 E. D. Smith, 196; Bebinger v. Sweet, 1 Abb. N. OC. 263; Holton v. Jones, 7 Robt. 164-249. The fact that the plaintiff, among other things, states that the arrest was made “ maliciously ” does not change the action from 622 FALSE IMPRISONMENT. Art. 13. Pleading. false imprisonment to malicious prosecution, in a case where false imprisonment is clearly the gravamen of the action. Rosecrans v. Hast, 1 Misc. Rep. 220, 49 St. Rep. 222, 20 N. Y. Supp. 880. Where an arrest was made without lawful process, the gist of the offense is unlawful imprisonment, and averments of malice and want of probable cause may be treated as surplusage, or as matter in aggravation of damages. Ackroyd v. Ackroyd, 3 Daly, 38. The complaint must show that the arrest was illegal; an allega- tion that it was maliciously prosecuted is insufficient. Cunning- ham v. East River El. Co., 17 N. Y. Supp. 372, 42 St. Rep. 212. In this case the court distinguishes false imprisonment from ma- licious prosecution, saying: “Allegation of malice does not help the plaintiff, for, even if the defendant were moved by malice in causing the arrest, unless the process was irregular and unlawful, an action for false imprisonment, as distinguished from one for malicious prosecution, would not lie.” This case reiterates the rule as to the distinction between false imprisonment and malicious prosecution, and the consequent necessity for recognizing that fact in framing the complaint, pointing out the difference in the material allegations, enforcing the proposition that the action for false imprisonment cannot be maintained where the process was regular and the arrest lawful, citing numerous authorities, including Marks v. Townsend, 97 N. Y. 596; Von Latham v. Libby, 38 Barb. 339; Brown v. Chad- sey, 39 Barb. 253; Landt v. Hilts, 19 Barb. 283. The absence of probable cause is an important one, and from time immemorial the absence of probable cause has always been a necessary allegation. Hawley v. Butler, 54 Barb. 490. Where, in an action for false imprisonment, the plaintiff has alleged that he has been refused employment and suffered damage by loss of a contract, it was held, on a motion to make the com- plaint more definite and certain, that the plaintiff must set forth the names of the persons refusing him employment, and also the nature and character of the contract. Lang v. Witte, 2 Month. L. Bull. 22. It is said that the particular instrumentality by which the plain- tiff was deprived of his liberty must not be set out in the complaint for false imprisonment, and if such circumstances are set forth FALSE IMPRISONMENT. 623 Art. 13. Pleading. they should be stricken out upon motion. Hddy v. Beach, 7 Abb. Pr. 17. See also Shaw v. Jayne, 4 How. Pr. 119. Special damage to an attorney’s business, caused by his arrest, must be specially pleaded. Hvans v. Metropolitan St. Ry. Co., 47 App. Div. 511, 96 St. Rep. 495, 62 N. Y. Supp. 495. The costs and counsel fees in defending a prosecution is a matter of special damages, which must be specifically alleged. Thomp- son v. Lumley, 7 Daly, 74. Proof of the expense of getting an attorney to procure discharge of an illegal arrest cannot be shown unless pleaded. Strange v. Whitehe, 12 Wend. 64. SUBDIVISION 2. Answer. In an answer to a complaint which alleged malice and lack of probable cause, the defendant should not set forth the facts and in- cidents which he expects to prove as showing probable cause, and such allegation will be stricken out upon motion. It seems that he should merely deny the plaintiff’s allegations that there was probable cause. Rader v. Ruckgaber, 3 Duer, 604. Justification must always be specifically pleaded, and, there- fore, under the pleading of “not guilty,” one who has had an- other arrested on a judgment and execution cannot show such judgment and execution as justification, even though evidence is not offered in justification or for the purpose of showing that the defendant is not guilty of trespass. Coates v. Darby, 2 N. Y. 519. Justification, upon the ground that the defendant had reason to suspect that a criminal offense had been committed by the de- fendant, must be specifically pleaded, and the answer must first show actual commission of an offense, and then the cause to sus- pect the plaintiff of its commission. But, if less than this is pleaded, or if the evidence comes short of this, it can only go to the question of damages. Brown v. Chadsey, 39 Barb. 253. As to allegations in an answer, which were held to constitute a complete justification for the arrest, see Parke v. Gilligan, 14 ‘Mise. Rep. 121, 85 N. Y. Supp. 477, 70 St. Rep. 174. * Justification must be pleaded. A mere denial of knowledge or information, sufficient to form a belief as to whether the defend- ant caused the arrest, raises no issue, Wilson v. Manhattan El. 624 FALSE IMPRISONMENT. Art. 13. Pleading. Ry. Co., 2 Mise. Rep. 127, 49 St. Rep. 116, 20 N. Y. Supp. 852, affirmed on opinion below 144 N. Y. 632, citing Lawrence v. Derby, 15 Abb. 346, note; Brown v. Chadsey, 29 Barb. 253. It was held that the defendants cannot deny knowledge or in- formation as to an allegation of the complaint, charging them with issuing the writ on which the plaintiff was arrested, and such answer to a verified complaint will be stricken out, ou motion, without any additional affidavit in support of the motion. Law- rence v. Derby, 15 Abb. Pr. 346, note, 24 How. Pr. 133. A cause of action on contract cannot be set up as a counterclaim in an action for false imprisonment. So held where defendant set up as such counterclaim a judgment recovered against the plaintiff in an action in which he was arrested. Ferris v. Arm- strong Co., 32 St. Rep. 908, 10 N. Y. Supp. 750, citing People v. Denison, 84 N. Y. 272. In an action for false imprisonment, upon an execution against the person for costs, the fact that the plaintiff had, by an order of restitution, obtained repayment of the money paid to the sheriff to satisfy the execution, may be pleaded in mitigation, and is not a privileged defense. Catlin v. Adirondack Co., 12 Week. Dig. 4. Where the officers of a religious corporation, such as vestrymen, were sued for false imprisonment, in the removal of disturbers of a church meeting, it was held that it was not irrelevant for them to allege in the answer that they were such officers, acting as such in the transaction complained of. But allegations in such answer that the plaintiff, who was charged with the disturbance, expressed an intention to make it, and had at previous times made similar disturbances, was irrelevant, and should be stricken out. Beckett v. Lawrence, 7 Abb. Pr. (N. 8.) 408. Under the common-law pleading, where the duty of defendant as State attorney required him to sue by warrant for penalties for violation of city ordinance,— Held, that, in justifying in an action for false imprisonment, he need not.aver that the plaintiff had in fact violated the ordinance. Walker v. Cruikshank, 2 Hill, 296. SUBDIVISION 8. Demurrer. An allegation that the defendant is a corporation constitutes no part of the cause of action. Therefore, such complaint is not de- murrable on the ground that it does not state facts constituting a FALSE IMPRISONMENT. 625 Art. 13. Pleading. cause of action. Adams v. Lamson Store Service Co., 59 Hun, 127, 35 St. Rep. 518, 138 N. Y. Supp. 118. For a case where the complaint was held to be demurrable on the ground that it did not set forth a proper cause of action against a judicial officer, see Lange v. Benedict, 73 N. Y. 12. It was there held “that the general averment in the complaint, that de- fendant ‘ wrongfully and willfully, without * * * jurisdic- tion, falsely imprisoned ’ the plaintiff, did not entitle plaintiff to judgment under the rule that the demurrer admits the allegations in the pleadings demurred to, as, by ‘the complaint, it was based upon the special circumstances set forth, and was no broader or more effectual than those circumstances.” Allegation in the answer in an action for unlawful arrest and false imprisonment, that defendant peaceably entered plaintiff’s premises for the purpose of making an arrest for violation of the Excise Law, which he had reason to believe was being committed ; that he was assaulted by plaintiff without just cause, and there- upon arrested him, and that such arrest and the subsequent charges made by him were made in good faith and with reasonable and probable cause, and were made for the sole purpose of preserving the public peace and in conformity to law,— Held, on demurrer, to constitute a complete justification for defendant’s acts. Park v. Gilligan, 14 Mise. Rep. 121, 35 N. Y. Supp. 477. A complaint is demurrable where it fails to allege detention and damage. Pease v. Frewwald, 39 Misc. Rep. 549, affirming 38 Mise. Rep. 805. FORMS. COMPLAINTS. Imprisonment by Defendant as Complainant. SUPREME COURT — Erte County. WILLIAM L. SAVAGE, Plaintiff, agst. | Complaint, 37 App. Div. 103. WILLIAM McMILLAN, Defendant. | The plaintiff in this action, by William L. Jones, his attorney, com- plains of the defendant, William McMillan, and alleges: 40 626 FALSE IMPRISONMENT. Art, 13. Pleading. First. That on the 19th day of November, 1895, at the city of Buffalo, N. Y., the defendant contriving and maliciously intending to injure the plaintiff without any warrant or pretense of legal proc- ess, caused his arrest; and by force compelled the plaintiff to leave his business, and go to the police court ‘in said city, two miles away, and there imprisoned this plaintiff, and then and there detained him, restrained of his liberty for the space of a number of hours, without reasonable cause and without any right or authority so to do, and against the will of the plaintiff, and then and there caused a false charge to be made against the plaintiff, that he had been guilty of felony, without reasonable cause, and without any right or authority so to do, and against the said will of the plaintiff, as aforesaid, whereby the plaintiff was held under arrest and imprisonment, and was injured in his credit and name, and prevented from attending to his necessary affairs and business during that time, and was com- pelled to procure bail and to expend $25 in costs and counsel fee, and was held, imprisoned, until he was afterward, and on Novem- ber 29, 1895, brought and compelled to appear before said police court, and the defendant then and there again falsely charged said plaintiff with the same offense, but the said court dismissed the said charge from custody, and the said plaintiff suffered damages on ac- count of such malicious arrest, false charge, and imprisonment, as aforesaid, in the sum of $5,000. WHEREFORE said plaintiff demands judgment in this action for the sum of $5,000 damages, aforesaid, and interest thereon from November 19, 1895, and the costs of this action. WiLtiaM L. Jonzs, Plaintiffs Attorney. (Verified by plaintiff, February 10, 1896.) Arrest by Police Officers Without Warrant. SUPREME COURT OF CITY OF NEW YORK. HARRY V. SNEAD, Plaintiff, agate. Complaint, 166 N. Y. 325. MAURICE BONNOIL and JOHN COT- TRELL, Defendants. The above-named plaintiff complains against the above-named de- fendants, as follows: That on or about the 8th day of November, 1893, at the city of New York, the defendants maliciously, and with intent to injure FALSE IMPRISONMENT. 627 Art. 13. Pleading. the plaintiff, by force compelled plaintiff to go with them to the central police offices, and there imprisoned this plaintiff, and then and there detained him, restrained of his liberty, for the space of forty-eight hours, or thereabouts, without reasonable cause, and with- out any right or authority so to do, and against the will of the plain- tiff, whereby the plaintiff was not only bruised and wounded, but was also injured in his credit, and was prevented from attending to his necessary affairs in business during that time, to his damage $25,000. WHEREFORE plaintiff demands judgment against the defendants for the sum of $25,000, besides the costs and disbursements of this action. GEORGE M. CurtTIs, Plaintiff's Attorney. Complaint for Imprisonment by Agent on Charge of Shoplifting. SUPREME COURT — New Yorx County. } LOUISE VERGENNES STEVENS, Plaintiff, | ! Complaint, 51 App. Div. 108 agst. 160 N.Y. 375. ' J HUGH O’NHEILL, Defendant. £ The complaint of the plaintiff by Hawes & Norman, her attor- neys, respectfully shows to the court, as follows: First. That the plaintiff is a resident of the city, county, and State of New York, and the defendant is engaged in business in said city of New York, trading under the name and style of “H. O’Neill & Co.” Second. That on the 15th day of December, 1897, plaintiff was lawfully in defendant’s store, at the corner of Twentieth street and Sixth avenue, in said city of New York, for the purpose of purchas- ing one of certain articles of merchandise, to wit: enameled watches, sold by defendant, and while examining same prior to purchase, she was with force and arms, forcibly and violently seized, assaulted, and laid hold of by the superintendent and the private detective of _ said defendant, all of whom were the servants and agents of defend- ant, employed as such by him, and acting under such employment and within the scope of their authority, who, at the same time and place, falsely, publicly, wickedly, and maliciously accused the plaintiff of having stolen from the defendant one of said enameled watches. Third, That plaintiff did not steal said watch, or any other matter 628 FALSE IMPRISONMENT. Art. 13. Pleading. or thing from the defendant, and she then and there stated and de- manded to be released. That said superintendent and said private detective, as such agents and servants of the defendant, and acting in the performance of such employment, and within the scope of their authority, refused to release plaintiff, but on the contrary, then and there said servants and agents of defendant, in the performance of such employment, and acting within the scope of their authority, and without any probable cause therefor, arrested plaintiff and threatened her with prosecution for the alleged theft of said watch from defendant. Fourth. That thereupon the said superintendent and private de- tective of defendant, as such servants and agents of defendant, as aforesaid, in the course of their employment and acting within the scope of their authority, and with the knowledge and consent of the defendant, again with force and arms, forcibly and violently seized, assaulted, and laid hold of plaintiff, and against her will and consent placed her under arrest, and falsely and maliciously detained and im- prisoned the plaintiff and compelled her to submit to a search or examination of her clothing and person at the hands of said private detective in the said store of defendant, for the alleged purpose of discovering property claimed to have been stolen from defendant, without any reasonable or probable cause and contrary to the laws of this State. . Fifth. That by reason of the said assault and the said false and malicious arrest, detention, and imprisonment of the plaintiff, as aforesaid, the plaintiff was subjected to great indignities, humilia- tioh, and disgrace in being so detained and imprisoned, and was com- pelled to walk the entire length of defendant’s store surrounded by a large crowd of Christmas shoppers and customers who were made aware that the plaintiff had been arrested charged with being a thief. That by reason of such exposure, arrest, detention, imprisonment, and search of the plaintiff by the said servants and agents of the defendant acting within the scope of the knowledge and consent of the defendant, the plaintiff was greatly injured in her credit and circumstances and was then and there hindered and prevented from performing and transacting her necessary affairs and business and was caused to suffer much pain in both mind and body, for all of which she has sustained damage to the amount of $25,000. WHEREFORE plaintiff demands judgment against the defendant for ie sum of $25,000, together with the costs and disbursements of this action. Hawzs & Norman, Attorneys for Plaintiff. FALSE IMPRISONMENT, 629 Art. 13. Pleading. Complaint Against Railroad for Imprisonment by Agent on Charge of Counterfeiting. SUPREME COURT — Kines County. AMANDA PALMERI, Plaintiff, agst. Complaint, 133 N. Y. 261. MANHATTAN RAILWAY COMPANY, | Defendant. | The complaint of plaintiff respectfully shows to the court: First. That the defendant is a corporation organized under and by virtue of the laws of the State of New York, and as such corporation was at the time hereinafter mentioned the owners of a certain elevated railroad known as the “ Manhattan Railway Company,” together with the tracks, cars, elevated structure, locomotives, and appurtenances thereto belonging, operated through and along Third avenue in the city of New York. Second. That on the 1st day of February, 1889, plaintiff entered a station, known as the Forty-seventh street station, of defendant, said station being a regular stopping place for the defendant’s cars, and paid her fare to a servant or agent in charge of said station aforesaid, and after plaintiff paid her said fare she was and became a passenger of defendant for hire, and said servant in hearing and presence of divers persons, and in a loud and tumultuous tone, spoke of and con- cerning the plaintiff the false and defamatory words, “you” (mean- ing plaintiff) “gave me a counterfeit twenty-five cent piece; I know you” (meaning plaintiff), “and know who you” (meaning plaintiff) “are.” “You” (meaning plaintiff) “took up the wrong man, you” (meaning plaintiff) “can’t pass any quids or counterfeit money on me, and I shall have you” (meaning plaintiff) “searched and arrested for trying to pass counterfeit money,” and said defendant unlawfully and illegally restrained and detained plaintiff and imprisoned her, and prohibited her from proceeding to her destination, and refused to allow plaintiff to take passage on their cars after she had paid her fare as aforesaid. Whereby and by reason of said slanderous and malicious words so spoken concerning plaintiff, and her unlawful arrest and detention, plaintiff suffered a severe shock, and her nerves were and become unstrung, and plaintiff became ill by reason thereof, and she was confined to her bed for two weeks, and she suffered disgrace and mortification, and her reputation and name was injured, to her dam- age $5,000. 630 FALSE IMPRISONMENT. Art. 13. Pleading. WHEREFORE plaintiff demands judgment against the defendant for the sum of $5,000 damages, besides costs of this action. BaLpwin F. Strauss, Attorney for Plaintiff, ete. Nore.—For a complaint joining false imprisonment with malicious prosecution, see forms under “ Malicious Prosecution.” ANSWERS. Specific Denials, with Plea of Justification. , SUPREME COURT — Erte County. WILLIAM L. SAVAGE, Plaintiff, agst. Answer, 37 App. Div. 103. WILLIAM McMILLAN, Defendant. | J The above-named defendant, William McMillan, by Charles L. Feldman, his attorney, for his answer to the plaintiff’s complaint: Denies that the defendant on the 19th day of November, or at any other time, at the city of Buffalo, or elsewhere, contrived or in- tended, maliciously or otherwise, to injure the plaintiff or cause his arrest without pretense of legal process. Denies that defendant restrained plaintiff of his liberty or arrested or imprisoned him or made a charge against him without reasonable cause or authority so to do. Denies that defendant caused a false charge to be made against the plaintiff at any time. Denies that plaintiff was held imprisoned from the 19th day of November, 1895, until November 29, 1895. Denies any knowledge or information sufficient to form a belief as to each and every allegation of the complaint not hereinbefore specifically denied. And for a second, separate, and further defense this defendant alleges that all of the time hereinafter mentioned this defendant was the superintendent of parks of the city of Buffalo; that the said city of Buffalo was and is a domestic municipal corporation, and that as such superintendent defendant had charge and custody and pos- session of the property hereinafter mentioned. That the defendant, prior to November 19, 1895, as such super- intendent, had piled up a large quantity of stone in Masten place, which was then and there a public ground of the said city of Buffalo, which said stone, as defendant was then and there informed and be- FALSE IMPRISONMENT. 631 Art. 13. Pleading. lieved, and as defendant now alleges upon information and belief, was then and there the property of the said city of Buffalo, and said stone was then and there in the actual custody, control, and posses- sion of this defendant. And defendant further alleges, upon information and belief, that thereafter the plaintiff, without the knowledge or consent of the city of Buffalo, or of this defendant, before daylight, and in the early morning hours of the said 19th day of November, 1895, secretly re- moved about 1,500 feet of said stone, of the value of $300 and up- wards, from the said place where it was piled up to an adjoining lot, and from there said plaintiff caused large quantities of said stone of the value of more than $25 to be transported to some other place or places to this defendant unknown, and was about thereafter in de- fendant’s presence to send away other quantities thereof when he was arrested as hereinafter alleged. That thereupon the defendant believed that the crime of grand larceny had been committed in removing and transporting said stone from the custody and possession of defendant as aforesaid, and the defendant had reasonable cause to suspect the plaintiff of having committed sych crime, and thereupon caused the plaintiff to be arrested and arraigned before Hon. Thomas S. King, who was then and there police justice of the city of Buffalo, to be dealt with according to law. That all of said acts were done by this defendant in good faith without any malice against the plaintiff or intention to injure him, but solely in the discharge of defendant’s duty as he understood it. That the above acts are the same of which the plaintiff complains. WuHereEForE the defendant demands judgment dismissing the com- plaint, with costs. CHaries L. FetpMAn, Defendant’s Attorney. Answer with Denials and Plea in Mitigation of Damages, SUPREME COURT — Kines County. AMANDA PALMERI, Plaintiff, \ agst. Answer, 133 N. Y. 261. MANHATTAN RAILWAY COMPANY, Defendant. The defendant, by Davies & Rapallo, its attorneys, answering the complaint herein: ’ First. Admits that it is a domestic corporation. 632 FALSE IMPRISONMENT. Art. 14. Evidence. Second. Denies any knowledge or information sufficient to form a belief as to each and every other allegation in the complaint made and contained. Third. For a further and separate answer and defense in mitiga- tion of any damages to which plaintiff might otherwise seem entitled, the defendant avers that at about the time mentioned in the com- plaint the plaintiff offered to defendant’s agent in payment of her fare a counterfeit twenty-five-cent piece and was told by said agent that the same was not good. Whereupon the plaintiff addressed very improper and abusive language to the defendant’s said agent and went her way. Wuererore defendant demands that the complaint may be dis- missed, with costs. Davirs & RAPALLO, Attorneys for Defendant. (Verified by secretary, April 2, 1889.) ARTICLE XIV. EVIDENCE. ss puBprvinton 1.-OE smGlee occ peeegdy Jana uasauen ae eee 632 2. Ol PUOUADIE CRORE 2 tied awaiw eeea sees 633 Oe Ol level RUTNOriiy se eeu e watac Ri eeu 634 2 OL WGNOn 54 srwwesr nena kee eu ae wae 635 Bb: OF eharicher esscenuvaow hse ies oho cawusd 635 AT, AGB, LG ag heap aka muerte 636 7. Records and process as evidence.......... 636 8. Miscellaneous ........... ofa dovin aia csy tack 637 SUBDIVISION 1. Of Malice. Where punitive damages are claimed, all facts tending to show that the defendant acted maliciously are admissible, and, on the other hand, all facts tending to show that he acted in an honest belief that he was justified may be shown. Voltz v. Blackmar, 64 N. Y. 440, reversing 4 Hun, 140. The defendant in an action for false imprisonment is entitled to show that he acted with good faith and without malice, and it is error to exclude testimony tending to show these facts. Warren v. Dennett, 17 Misc. Rep. 88, 39 N. Y. Supp. $30. It is competent for the defendant, in an action for false im- FALSE IMPRISONMENT. 633 Art. 14. Evidence. prisonment, to testify that he acted in good faith, and was actu- ated by no ill-will toward the plaintiff, and believed the truth of the charges made. Rosen v. Stein, 54 Hun, 179, 26 St. Rep. 881, 7 N. Y. Supp. 368, citing McCowan v. Hunter, 30 N. Y. 625; Farnham v. Feeley, 56 N. Y. 451. The question of the presence or absence of malice is ordinarily a question for the jury. See Rosen v. Stein, 54 Hun, 179, 26 St. Rep. 881, 7 N. Y. Supp. 368, for a case where it was held that, under the circumstances, the question of malice was for the jury, and that the court could not decide, as a matter of law, that the evidence did not sustain the finding. Where a jury finds want of probable cause, they may, from the same facts, infer malice. “Not that the want of probable cause raises any presumption of law of the existence of malice, but establishes a feature or element in the case from which malice may be inferred and found as a fact by the jury.” Citing McCormick v. Perry, 47 Hun, 74. In an action for false imprisonment, the defendant may allege in mitigation facts tending to show that he acted without malice, and that there was reasonable cause for his action. Under sec- tion 536 of the Code, the defendant may prove on the trial facts not amounting to a total defense, but which may mitigate the damage set forth in the answer. Bradner v. Faulkner, 93 N. Y. 515, reversing 16 Week. Dig. 240. Where the defendant procured the plaintiff’s arrest without probable cause, and with a view to enforcing a civil remedy, it is proper for the court to charge that if the jury find that there was no probable cause they might infer from that fact alone that the arrest was made through malice. Rosen v. Stein, 54 Hun, 179, 26 St. Rep. 881, 7 N. Y. Supp. 368, distinguishing McCor- mic v. Perry, 47 Hun, 74. SUBDIVISION 2. Of Probable Cause. Where an arrest is made without warrant the plaintiff must prove want of probable cause, and where evidence of discharge by a police justice is given it is prima facie evidence of want of probable cause, and throws upon defendant the burden of proving the contrary. Rosenkranz v. Hass, 1 Mise. Rep. 220, 49 St. Rep. 222, 20 N. Y. Supp. 880. Though evidence of probable cause cannot be given unless such 634 FALSE IMPRISONMENT. Art. 14. Evidence. justification is pleaded, yet evidence showing grounds for sus- pecting the plaintiff of the crime is admissible upon the question of damages. Upon that point it is material as tending to relieve the defendant from the imputation of having acted from improper motives. Brown v. Chadsey, 39 Barb. 253. Where an action was brought against a railroad company for causing plaintifi’s arrest on a charge that he was making a dis- turbance in a car, evidence of the officer who made the arrest, and of other passengers, expressing approval of it, is competent to disprove plaintiff’s testimony that he was making no disturbance. Maguire v. Broadway & Seventh Ave. Ry. Co., 42 St. Rep. 824, 16 N. Y. Supp. 922. f In an action for false imprisonment on charge of larceny, evi- dence that the plaintiff’s brother, who was arrested at the same time, was very sick, is admissible to show want of reasonable grounds for believing them guilty of the crime charged. Fte- patrick v. N.Y. & M. B. Ry. Co., 24 St. Rep. 636, 5 N. Y. Supp. 685. Where there is no conflict of evidence as to the circumstances of imprisonment, the question of probable cause is one of law and not of fact for the jury. Burns v. Erbin, 40 N. Y. 463. The burden of proof in this action is upon the plaintiff, and to recover he must show a fair preponderance of evidence that he was arrested at the instigation or procurement of the defendant and without probable cause. Limbeck v. Gerry, 15 Misc. Rep: 663, 39 N. Y. Supp. 95. For.a case in which it was held that the question of probable - cause for the arrest of the plaintiff on the charge of adulterating milk should have been submitted to the jury, see Perry v. Sutley, 45 St. Rep. 61, 18 N. Y. Supp. 633. SUBDIVISION 3. Of Legal Authority. The warrant under which plaintiff is arrested is admissible in evidence on behalf of the defendant. Wélliams v. Williams, 4 T. & OC. 251, 2 Hun, 111. In a warrant issued under an act to suppress immorality it is not necessary to state the circumstances which give the magistrate jurisdiction. Such facts may be shown aliwnde in an action for false imprisonment. Atchinson v. Spencer, 9 Wend. 62. FALSE IMPRISONMENT. 635 Art. 14. Evidence. Where the defendant is a corporation, and the question of the agency of the person making the arrest is under consideration, evidence that the place where the arrest was made is under the defendant’s control, is admissible. Ftzpatrick v. N. Y. & M. B. Ry. Co., 24 St. Rep. 636, 5 N. Y. Supp. 685. If the defendant has not pleaded justification he will not be permitted to show that he acted under authority. Rider v. Fuller, 13 Hun, 669. SUBDIVISION 4. Of Intention. In an action for false imprisonment it is error to exclude testi- mony showing that the defendant acted in good faith. Warren v. Dennett, 17 Mise. Rep. 36, 39 N. Y. Supp. 830. Where the defense was that the plaintiff had committed the crime of intimidating an officer, it was held that the question of the plaintiff’s intent under the facts should have been submitted. to the jury. Smith v. Botens, 36 St. Rep. 58, 13 N. Y. Supp. 222. Where the plaintiff was arrested for riding a bicycle upon the sidewalk in violation of an ordinance, which act constituted a misdemeanor, it was held that evidence tending to show that the plaintiff rode upon the sidewalk in order to avoid approaching teams was improper. The plaintiff’s motives were immaterial. Fuller v. Redden, 18 App. Div. 61, 43 N. Y. Supp. 96. In an action for assault and battery and false imprisonment against a police officer, who arrested the plaintiff on information that he was killing his mother-in-law, evidence that on his way to the station-house the plaintiff threatened that he would murder the defendant or any one else who attempted to arrest him, was held to be admissible as bearing upon the question of the pro- priety of the force used by defendant. Fulton v. Staats, 41 N. Y. 498. SUBDIVISION 5. Of Character. If the plaintiff up to the time of his arrest uniformly bore a good reputation, and the defendant knew of the same, such fact may be considered by the jury in connection with other evidence in determining whether or not the defendant had probable cause to believe the plaintiff guilty of the crime. Limbeck v. Gerry, 15 Misc. Rep. 663, 39 N. Y. Supp. 95. 636 FALSE IMPRISONMENT. Art. 14. Evidence. Evidence of the approval of plaintifi’s arrest by bystanders is admissible to disprove the plaintiff’s testimony that he was not making any disturbance when arrested. Maguire v. Broadway, etc., Ry. Co., 42 St. Rep. 824, 16 N. Y. Supp. 922. In an action for false imprisonment it was held no error to ex- clude an offer by the defendant to show that the plaintiff was an habitual litigant. Palmeri v. Manhattan Ry. Co., 133 N. Y. 261, 44 St. Rep. 694, affirming 39 St. Rep. 23. SUBDIVISION 6. Of Damage. Where an attorney has been wrongfully imprisoned he cannot show that his law business has been practically destroyed in con- sequence of his arrest unless such element of damage is specially pleaded, as such evidence is not admissible under a mere allega- tion that the plaintiff was greatly injured in his credit and reputa- tion. Hvans v. Metropolitan Ry. Co., 47 App. Div. 511, 62 N. Y. Supp. 495, 96 St. Rep. 495. Even though justification is not pleaded, evidence that the de fendant had grounds to suspect the plaintiff of the crime may be shown upon the question of damages, as it tends to relieve defend- ant from the imputation that he acted from improper motives. Brown v. Chadsey, 39 Barb. 253. Where the defendant, a physician, caused the confinement of the plaintiff under the supposition that she had smallpox, and delivered her to the hospital ambulance, evidence was held to be inadmissible which tended to show that the driver of the ambu- lance, instead of going directly to the hospital, had deviated from his course and taken in a colored woman affected with the small- pox. So, too, evidence was held to be inadmissible tending to show that when the plaintiff left the hospital part of her clothing was detained there by some person in charge. It was held that the damages this testimony tended to show were not the legal and consequent damages arising from the act complained of. Rider v. Fuller, 13 Hun, 667. SUBDIVISION 7. Records and Process as Evidence. Where an action is brought against defendants as individuais for wrongfully arresting plaintiff under an execution against his person, it is error to exclude the execution offered for the purpose FALSE IMPRISONMENT. 637 Art. 14. Evidence. of connecting defendant with the arrest merely because they are therein stated to be executors. Sherman v. Grinnell, 70 Hun, 354, 53 St. Rep. 81, 24 N. Y. Supp. 59. Judgment in a criminal action cannot be used in a civil suit to establish the facts upon which such judgment rests. ‘“A judg- ment in a criminal prosecution is admissible in a civil case only to establish the fact of the rendition of the judgment, but it is not evidence of the facts upon which the judgment proceeded, that is, of the guilt of the accused.” Walson v. Manhattan Ry. Co., 2 Misc. Rep. 129, 20 N. Y. Supp. 852. Where the plaintiff was arrested at night and a complaint made against him on the following morning, the record of the proceed- ings following such complaint is admissible in an action for false imprisonment, as the arrest and imprisonment constitute one con- tinuous act of imprisonment. The record of such proceedings is properly proved by the original record of the magistrate. Shea v. Manhattan Ry. Co., 29 St. Rep. 313, 8 N. Y. Supp. 333, 15 Daly, 528. In an action for false imprisonment the minutes of the justice showing the suspension of criminal sentence are admissible to show conviction. Cuniff v. Beecher, 84 Hun, 187, 32 N. Y. Supp. 1067, 66 St. Rep. 399. A warrant under which the mother of a bastard child was com- mitted for refusing to discover the putative father may be pro- duced on trial by the plaintiff, and is evidence of the facts therein contained, until gainsaid by proof upon his part. Scott v. Ely, 4 Wend. 555. The grounds upon which an arrest was made cannot be proved by the testimony of the magistrate issuing the warrant as the complaint must be in writing and is the best evidence. Tacy v. Starks, 67 App. Div. 422, 73 N. Y. Supp. 225, 107 St. Rep. 225. SUBDIVISION 8. Miscellaneous. Evidence of what was said and done at the time of the arrest is competent. Devoe v. Davis, 12 Week. Dig. 544. In a civil action for false imprisonment on charge of felony, evidence of the settlement of a criminal prosecution between plain- tiff and defendant is not admissible to prove that the defendant did not prosecute. Van Voorhes v. Leonard, 1 8. C. 148. 638 FALSE IMPRISONMENT. Art. 14. Evidence. The burden is upon the plaintiff, and in order to recover he must show by a fair preponderance of evidence that he was ar- rested by the direction or procurement of the defendant and with- out probable cause. Limbeck v. Gerry, 15 Misc. Rep. 668, 39 N. Y. Supp. 95. The exclusion of evidence regarding the disposition made by the grand jury of charges against the plaintiff is not an error. Hopner v. McGowan, 116 N. Y. 405. For a case turning upon the necessary proof to connect the execution upon which the plaintiff was arrested with the judg- ment in an action, where the action was brought by defendant in attachment against his lessor, see Brown v. Demont, 9 Cow. 263. The burden is upon the plaintiff to show that the defendant imprisoned him and deprived him of his liberty by unlawful means and want of probable cause. Warren v. Dennett, 17 Misc. Rep. 86, 39 N. Y. Supp. 830. For a case where the plaintiff was arrested upon charge of blackmail, and where the court held there was sufficient evidence that the act of the person causing the arrest was instigated by defendant to permit it to go to the jury, see Carson v. Dessau, 142 N. Y. 445, overruling 36 St. Rep. 425. For a case where it was held that the arrest of plaintiff for obtaining a horse and wagon from a livery-stable upon false pre- tenses was justified, see Olmstead v. Doland, 6 N. Y. Supp. 180. Where a commissioner of health of a city is required by law to take such measures as he may, with the approval of the mayor and president of the medical society, declare necessary for public safety, in case of an impending ‘pestilence, it was held in an ac- tion for false imprisonment against such health commissioner that the proclamation of the commissioner and of the mayor and presi- dent of the medical society reciting that smallpox was epidemic, and that every citizen should be vaccinated, and that those not vacci- nated should be quarantined, was held to be admissible in evidence on behalf of the commissioner, and that he should also be allowed to prove the number of cases of the disease and to introduce a map showing the locality of the cases and to prove the infection and contagious character of the disease, how this contagion is conveyed by air, clothing, utensils, ete. Smith v. Emery, 11 App. Div. 10, 42 N. Y. Supp. 258. FALSE IMPRISONMENT. 639 Art. 15. Procedure and Trial. Where improper evidence is received over objection, but sub- sequently, and before the testimony is closed, the judge orders the same to be stricken out and directs the jury to disregard it, the error is not cured if the verdict cannot be supported without such evidence. Mandeville v. Guernsey, 51 Barb. 99. Where in an action for false imprisonment the plaintiff had been allowed to testify that he did not know that a judgment upon which he had been arrested had been recovered against him, it was held error to refuse evidence by defendant showing that the judg- ment had been obtained after trial, as this evidence would have directly contradicted the testimony of the plaintiff as to his recol- lection of the judgment. Bergman v. Noble, 45 Hun, 133, 19 Abb. N. C. 62. An affidavit made to obtain a warrant in criminal proceedings stating that the accused procured money by fraudulently repre- senting that he was authorized to receive it for the complainant, and with intent to deceive and defraud the complainant, does not offer proof of criminal offense, and a warrant issued thereon is void. Devoe v. Davis, 12 Week. Dig. 544. For a case where the plaintiff had been arrested for shoplift- ing and the verdict in her favor was held to be against the weight of evidence, see Tobin v. Bell, 73 App. Div. 41, 76 N. Y. Supp. . 425, 110 St. Rep. 425. ARTICLE XV. PROCEDURE AND TRIAL. are Supprvision 1. Miscellaneous ...........0ceeceeecenens 639 9. Nonsuit and charge ..........cceeeeeees 640 3. Verdict, costs, and appeal ....... ere eee 643 SUBDIVISION 1. Miscellaneous. As to right to arrest in action for false imprisonment see Code Civ. Proc., § 549. By virtue of section 8177 of the Code of Civil Procedure it is provided that in the City Court of New York, in a case specified under section 317 of the Code, the plaintiff may apply for an order of arrest to accompany the summons. For the contents of an order of arrest and the proceedings thereon, see § 3178 et seq. 640 FALSE IMPRISONMENT. Art. 15. Procedure and Trial. An action against a public officer for false imprisonment of the plaintiff in a foreign country must be brought in the county where the cause of action, or some part of it, arose. Tupper v. Morin, 25 Abb. N. C. 402, 12 N. Y. Supp., 310. SUBDIVISION 2. Nonsuit and Charge. As a warrant showing a case within the jurisdiction of the jus- tice issuing it is a protection to a ministerial officer acting under ‘it, it is error for the court to refuse a nonsuit, or to refuse to charge that such warrant is a protection to the officer and that he is en- titled to a verdict. Smith v. Warden, 4 Hun, 787. It is error to dismiss a complaint as to one of two defendants where there is evidence that he was instrumental in causing the issuance of an execution upon which the arrest was made. Sulli- van v. Newman, 43 St. Rep. 893, 17 N. Y. Supp. 424. It is improper to dismiss a complaint at the end of the plaintiff's evidence on the ground that the plaintiff had failed to show want of probable cause and malice on the part of defendant, when the court would not be justified in holding, as matter of law, that the defendant had grounds for reasonable suspicion such as to warrant a cautious man in believing the plaintiff guilty of the offense. Nor is the situation changed so as to warrant direction of a verdict at the close of defendant’s case by the fact that the evidence on the part of the defendant contradicted in substantial respects the evi- dence on the part of the plaintiff. De Mattcis v. La Maida, 74 Hun, 432, 57 St. Rep. 178, 26 N. Y. Supp. 471. For a case where it was held that a nonsuit was improper be- cause the question as to whether plaintiff had committed a crime was a question for the jury, see Smith v. Botens, 36 St. Rep. 53, 13 N. Y. Supp. 222. , The question as to probable cause is for the jury. See Neil v. Thorn, 17 Hun, 144, where, under the circumstances, it was held error for the court to charge as matter of law that there was no reasonable cause. . For a case involving a charge as to probable cause, malice, and comments upon the evidence by the court, see Murray v. Friens- berg, 15 N. Y. Supp. 450, 39 St. Rep. 600. For a case where the charge of the court in respect to the ques- FALSE IMPRISONMENT. 641 Art. 15. Procedure and Trial. tion of damages was held to be error, see Catlin v. Pond, 101 N. Y. 649. Where defendants testified that the plaintiff was arrested for disorderly conduct and yelling on the street, it was held error for the court to charge that no question of disorderly conduct or breach of the peace could arise in this action; the question whether there was a breach of the peace should have been sent to the jury. It should further be charged that if they found affirmative evidence upon this point and that the officer made the arrest upon his own responsibility, a verdict should be rendered in favor of defendant. Lewis v. Kahn, 25 St. Rep. 595, 5 N. Y. Supp. 661, 15 Daly, 326. Where the plaintiff was arrested on a charge of having stolen money, and where he denied having taken it, it was held to be proper to submit the question to the jury as to whether a theft had been committed with an instruction that if there had been a theft probable cause was shown It is also proper for the court to charge that a verdict for the plaintiff cannot be found unless no theft had been committed and the charge had been made maliciously. At- wood v. Beirne, 73 Hun, 547, 57 St. Rep. 264, 26 N. Y. Supp. 149. Where a jury has been instructed that they may give punitive damages, the court is not bound, unless requested, to inform the jury of the nature of such malice as will justify such damage. Craven v. Bloomingdale, 30 Mise. Rep. 650, 64 N. Y. Supp. 262, 98 St. Rep. 262, reversed 171 N. Y. 439. Where the plaintiff failed to produce his wife as a witness, or to account for her absence, in a case where an action was brought to recover damages for an arrest made upon the charge of plain- tiff’s misconduct with such woman before he married her, it was held that the court was justified in charging that the jury were at liberty to consider that the woman’s evidence would not have been favorable to the plaintiff. Carpenter v. Penn. R. R. Co., 13 App. Div. 328, 43 N. Y. Supp. 203. Where the evidence shows an intentional and wanton invasion of the plaintiff’s civil rights, the court may refuse to charge that there is no evidence of malice, and may charge that exemplary damages may be awarded if the jury find malice. Kolzern v. Broadway & Seventh Avenue Ry. Co., 1 Misc. Rep. 148, 48 St. Rep. 656, 20 N. Y. Supp. 700. 41 642 FALSE IMPRISONMENT. Art. 15. Procedure and Trial. The charge that “ when an arrest is made without probable cause and the person is afterward discharged, the law will presume it to be malicious,” was held to be sound. Murray v. Friensburgh, 39 St. Rep. 600, 15 N. Y. Supp. 450. See Savage v. McMillan, 37 App. Div. 103, 55 N. Y. Supp. 1055, for a case where under the facts proved it was held to be proper for a judge to charge that on the question of probable cause the plaintiff was entitled to recover, and that the only question for the jury was the amount of damages. Where it appears in fact that the defendant was the prosecutor, causing arrest of plaintiff upon a criminal charge, and where the defendant identified plaintiff as one from whom he had received stolen goods, but upon examination defendant could not positively swear that she had pawned the goods, and plaintiff was discharged, it was held error for the court to refuse to charge that if the de- fendant accused plaintiff in good faith the plaintiff could not re- cover, except with the qualification that the defendant had reason- able grounds for believing her guilty. It was held that an action for false imprisonment could not be maintained and that if he acted in good faith he could not be charged with the subsequent prosecution. Farnam v. Feeley, 56 N. Y. 451. It is reversible error for the court to charge that arrest and de- tention was unlawful because there was absence of reasonable cause to belief that plaintiff was guilty, if the fact as to reasonable cause is in controversy. Thompson v. Fisk, 50 App. Div. 72, 63 N. Y. Supp. 352, 97 St. Rep. 352. It is held to be proper to charge that if there was no probable cause for making the complaint on which the plaintiff was arrested, yet if in making it the conductor did not act with a malicious purpose or with actual malice, defendant was entitled to a verdict. It was also held where the plaintiff was arrested for failing to pur- chase a ticket on the train, and where the defendant requested the court to charge that the plaintiff when applied to by the conductor was obliged to produce a proper and valid ticket as evidence of his right to ride, or else pay his fare, that it was proper for the court to reply “If he could do so, he was.” “Tf he had a ticket and lost it, it was a subject of explanation. It was his duty either to produce a proper ticket, or pay his fare, or make some reasonable explanation why he didn’t do it.” FALSE IMPRISONMENT. 643 Art. 15. Procedure and Trial. It was further held that under the circumstances of the case it was proper to charge that the damage was substantial and not nominal And that it was proper for the court to charge that if the conductor made the criminal complaint for the sole pur- pose of collecting a debt and to prove himself right the jury must find malice. It was also held that under the circumstances if was proper to charge that the conductor was chargeable with the knowledge of his assistant that the plaintiff had delivered un- punched tickets to him. Toomey v. D., L. & W. BR. R. Co., 53 St. Rep. 567, 24 N. Y. Supp. 108. It is sufficient that the charge to the jury is in substantial ac- cordance with the request, although the judge declines to adopt the particular language used. Speaking of a charge in question the court said: ‘“ On the question of malice, he (the judge) prop- erly declined to withdraw the issue from the consideration of the jury. He instructed them that if there was probable cause for the complaint, even though it was made from, malicious motives, their verdict should be for the defendant.” Fay v. O’Neill, 36 N. Y. 11. Where a complaint united an action for malicious prosecution with one for false imprisonment, and where the judge charged the jury to assess damages in the action for false imprisonment, if they found that the other action was not sustained, it was held that the defendant was not prejudiced by the refusal of the judge to dis- miss the complaint as to the action for malicious prosecution. Thorne v. Turck, 94 N. Y. 90. SUBDIVISION 3. Verdict, Costs, and Appeal. The rule that in an action for assault the jury may find against one defendant and in favor of the other does not apply where such defendants answer jointly and make an admission which supplies a lack in the evidence. Murphy v. Kron, 20 Abb. N. C. 259. A judgment in false imprisonment against joint tort feasors cannot stand as to one and be reversed as to the other, for erroneous instructions as to the latter; it will be reversed in toto. Lewis v. Kahn, 5 N. Y. Supp. 661, 25 St. Rep. 595, 15 Daly, 326. As to reversing a judgment against joint tort feasors the court said, in Farrell v. Friedlander, 63 Hun, 257, 18 N. Y. Supp. 215: “ Judgment here having been against joint tort feasors, as it must 644 FALSE IMPRISONMENT. Art. 16. Damages. be reversed as to the one, it is doubtful if it can be permitted to stand as to the other.” Citing Lewis v. Kahn, supra. By virtue of section 3228, subdivision 3, of the Code if “in an action to recover damages for *. * * false imprisonment * * * the plaintiff recovers less than fifty dollars damages, the amount of his costs cannot exceed his damages.” It was held in an action for false imprisonment that where the case was presented to the jury upon an erroneous theory, that the question presented could be reviewed in the Appellate Division, al- though no exception was taken. Vorce v. Oppenheim, 37 App. Div. 69, 55 N. Y. Supp. 596. ARTICLE XVI. DAMAGES. PAGE Supprviston 1. Compensatory damages ......... somaiapate 644 2. Punitive damages and mitigation ......... 647 SUBDIVISION 1. Compensatory Damages. While malice or want of probable cause is no part of the plain- tif?s case in an action for false imprisonment, proof that the plaintiff believed himself to be legally right in making an im- proper arrest will mitigate exemplary damages, but will not di- minish actual damages. Hale on Torts, 251, citing Sleight v. Ogle, 4 E. D. Smith, 445; Holmes y. Blyler, 80 Iowa, 365, 45 N..W. 756; Lnvingston v. Burroughs, 33 Mich. 511; Tenney-v. Harvey, 63 Vt. 520, 22 Atl. 659. In esfimating the actual damage sustained by the plaintiff, who had been illegally arrested, the jury may include compensation for the injury to plaintiff’s feelings, and compensation for the insult and indignity to which he has been subjected. These items are considered as actual damage. Rown v. Christopher & Tenth Sts. Ry. Co., 34 Hun, 471. Where improper evidence in regard to damages has been re- ceived, and the jury is subsequently told to disregard it, the ver- dict will not be disturbed if, under the circumstances, it would be warranted by the testimony. Mandeville v. Guernsey, 51 Barb. 99. Indemnity may be given for injury to reputation, feelings, health, mind, and person, caused by the arrest, together with the FALSE IMPRISONMENT. 645 Art. 16. Damages. expenses of the defense. F'agnan v. Knox, 8 J. & 8. 41, reversed 66 N. Y. 525, on other grounds. Though a passenger, wrongfully imprisoned, may recover for the loss of earnings during the imprisonment, he cannot recover for loss of employment for some months in consequence of his failure to keep an appointment on the morning after his arrest, such loss not being deemed the proximate consequence of his de- tention. Carpenter v. Pennsylvania R. R. Co.,18 App. Div. 328, 43 N. Y. Supp. 208. Where, in an action for false imprisonment, the damages are unliquidated, the amount is in the discretion of the jury, and their determination will not be disturbed except for a plain abuse of discretion. Craven v. Bloomingdale, 30 Misc. Rep. 650, 64 N. Y. Supp. 262, 98 St. Rep. 262, citing Pastor v. Reagan, 9 Mise. Rep. 547, 30 N. Y. Supp. 657. In Sullivan v. Newman, 43 St. Rep. 898, 17 N. Y. Supp. 424, it was held that, where the plaintiff had been detained from home for six weeks, his business had been interrupted, and he had been put to the expense of procuring his discharge, a verdict in his favor for $43 was not adequate, and, in connection with other errors, was ground for a new trial. An attorney who issues an unlawful body execution, under special instruction from his client, is not liable to the debtor for damages caused by reason of his confinement by the sheriff among prisoners. “ For that violation of the law, the sheriff was respon- sible, and he alone.” Baker v. Secor, 22 St. Rep..97, 4 N. Y. Supp. 303. It was also held in this case that, in an action against - the attorney for the false imprisonment, the attorney is entitled to have the jury, in assessing damages, credit the amount received by the plaintiff from the execution creditor, by the discharge of the judgment on which the execution was issued. Special damage to an attorney’s business, caused by his arrest, must be specially pleaded. It is not admissible, under a general allegation, that he was greatly injured in health, credit, reputa- tion, ete. Evans v. Metropolitan St. Ry. Co., 47 App. Div. 511, 96 St. Rep. 495, 62 N. Y. Supp. 495. It would seem to be implied, in the opinion in Sullivan v. New- man, 48 St. Rep. 893, 17 N. Y. Supp. 424, that the plaintiff's expenses in procuring his discharge from arrest is a proper item of damage. 646 FALSE IMPRISONMENT. Art. 16. Damages. Where a divorced husband illegally procured the arrest of his divorced wife, for refusing to give up possession of a child, the custody of which had been awarded to him, a verdict of $3,000 damages was held not to be excessive where the plaintiff was taken to a public place and conducted through the street to the station- house, and detained in the lockup under circumstances which humbled and humiliated her. Monjo v. Monjo, 53 Hun, 145, 25 St. Rep. 150, 6 N. Y. Supp. 132. In Ball v. Harrigan, 47 St. Rep. 384, 19 N. Y. Supp. 913, it was held that humiliation, insults, and wounded sensibilities are all subjects of compensation, and not of punitive damages, which depend upon malice, and, in consequence, it was held that a ver- dict of $450 was not excessive where the plaintiff, a girl, was de- tained by the defendant in a police box to await the police wagon, and was compelled to go on the same and go to the police station, under a charge of having kicked over the defendant’s barrel, which had, in fact, been done by some boys. The fact that the plaintiff is a female is material in an action for false imprisonment, as affecting the kind and degree of mor- tification and inconvenience caused by the arrest. Dodge v. Alger, 53 N. Y. Super. 107. See also Monjo v. Monjo, 538 Hun, 145, 6 N. Y. Supp. 132. Where the plaintiff, a woman, was imprisoned for seven hours and stripped naked before the gaze of strange men, it was held that a verdict of $800 was not excessive. McKelvay v. Marsh, 63 App. Div. 396, 71 N. Y. Supp. 541, 105 St. Rep. 541. The fact that the plaintiff has a family is material, on the kind and degree of mortification and inconvenience caused by the ar- rest. Dodge v. Alger, 21 J. & 8. 107. It seems that, even where a jury is restricted to actual dam- ages in an action for false imprisonment, they may, in estimating such damages, include injury to the plaintiff’s feelings, compen- sation for the insult, and indignity to which he has been sub- jected. Rown v. Christopher, etc., Ry. Co., 34 Hun, 475. In Strang v. Whitehead, 12 Wend. 64, it was held that the ex- penses of the plaintiff, for legal services in procuring his discharge from an illegal arrest, are not admissible in an action for false imprisonment, unless such expenses are specially pleaded. Such expenses are not the legal and natural result of the act complained of. The admission of evidence of such expenses is ground for new trial. FALSE IMPRISONMENT. 647 Art. 16. Damages. The amount of counsel fees and costs of plaintiff in defending a prosecution are matters of special damage, and must be pleaded and proven to be recovered. Thompson v. ae. 7 Daly, 74. The plaintiff may recover for the time and expenses incurred in procuring his discharge by habeas corpus from false imprison- ment, although the warrant on which defendant procured the im- prisonment was void on its face. Blythe v. Tompkins, 2 Abb. Pr. 468; Williams v. Garrett, 12 How. Pr. 456. The plaintiff may recover his expenses incurred in procuring his discharge by habeas corpus. Williams v. Garrett, 12 How. Pr. 456. SUBDIVISION 2. Punitive Damage and Mitigation. Where ax arrest was wanton and oppressive, and in open dis- regard of the plaintiff’s right to personal liberty, it may be said that legal malice has been shown, and punitive damages are proper. Craven v. Bloomingdale, 30 Misc. Rep. 650, 64 N. Y. Supp. 262, 98 St. Rep. 262, citing Muckle v. Rochester R. R. Co., 79 Hun, 338, 29 N. Y. Supp. 732; Kolzern v. Broadway Ry. Co., 1 Mise. Rep. 148, 20 N. Y. Supp. 700, reversed 171 N. Y. 439. The plaintiff’s right to punitive damages cannot be denied, in a case where the arrest was illegally made under a village ordi- nance prohibiting the riding of bicycles on the sidewalk, merely upon the ground that the plaintiff had previously committed the same act. Fuller v. Redding, 16 Misc. Rep. 634, 39 N. Y. Supp. 109. Punitive damages may be awarded where an illegal arrest is ma- licious and wanton. Limbeck v. Gerry, 15 Misc. Rep. 663, 39 N. Y. Supp. 95. In a case where a woman was searched in defendant’s store, upon the accusation of having stolen goods, and pursuant to a system which had been adopted in such store, it was held that punitive damages could be awarded, although there was no evidence of ex- press malice. Stevens v. O’Neill, 51 App. Div. 364, 64 N. Y. Supp. 663, 98 St. Rep. 663. Punitive damages may be given in an action for false imprison- ment under proper instructions from the court. Mann v. Barrows, 14 St. Rep. 10, citing Hunt v. Bennett, 19 N. Y. 178; Brooks v. Harrison, 91 N. Y. 83. Where the question of probable cause is left to the jury, and 648 FALSE IMPRISONMENT. Art. 16. Damages. depends upon whether or not a felony has been committed, it seems that punitive damages are proper if the jury finds that no felony has been committed. Atwood v. Beirne, 73 Hun, 547, 26 N. Y. Supp. 149, 57 St. Rep. 264. » The jury may give damages beyond mere compensation in ac- tions for false imprisonment, or inflict punishment upon defend- ant for his conduct, though not in an arbitrary amount. Brown v. Chadsey, 39 Barb. 253. By virtue of section 3035, Code of Civil Procedure, a sheriff or jailer who refuses to discharge a prisoner committed by virtue of an execution issued by a justice of the peace, etc., after re- ceiving proper evidence, ete., as provided for in sections 3032- 3034, forfeits $25 for each day’s detention of the person, to be recovered by the person detained, in addition to any damages he may have sustained by reason of the false imprisonment. Where the evidence in an action for false imprisonment showed an intentional and wanton invasion of the plaintiff’s civil rights, the court may refuse to charge that there is no evidence of malice, and may properly charge that the jury may award punitive dam- ages if they believed that the arrest was accompanied by malice. Kolzern v. Broadway & Seventh Ave. Ry. Co., 1 Misc. Rep. 148, 48 St. Rep. 656, 20 N. Y. Supp. 700. Where evidence was given of the ill-will and malice of the de- fendant toward the plaintiff, and that defendant had made threats against him, and where he procured an illegal warrant directing a search of plaintiff’s premises, it was held that a verdict for $1,000 damages was not excessive. Johnson v. Comstock, 14 Hun, 238. (Note, this case was in trespass, and not false imprison- ment. ) A client is not liable for punitive damages for the act of his attorney, in unlawfully issuing execution against the person of the plaintiff, unless the attorney, if sued, would himself be liable, if he acted without malice and under a mistake of law. Cotton v. Adirondack R. R. Co., 15 Week. Dig. 256. If there is no evidence of bad faith in the transaction, punitive damages should not be awarded. Williams v. Garrett, 12 How. Pr. 456. Though a railroad corporation is liable for the willful acts done or omitted by its servants in the course of their employment to the extent of the actual injury sustained, yet it cannot be held liable FALSE IMPRISONMENT. 649 Art. 16. Damages. for punitive damages unless it is shown to have been guilty of gross negligence or misconduct. Fisher v. Metropolitan El. Ry. Co., 84 Hun, 433. In an action for false imprisonment and malicious prosecution against a railroad company by a person arrested by special officer, punitive damages cannot be awarded against the company unless it be shown that they authorized or ratified the arrest or had knowledge that the officer was not fit for the duties. Kastner v. Long Island R. R. Co., 76 App. Div. 323, 78 N. Y. Supp. 469, 112 St. Rep. 469. Where an arrest was made by a detective employed by a rail- road corporation, and there was no evidence of ill-will, malice, or wanton disregard of plaintiff’s right in making the arrest, and where the same was made in good faith and upon warranted sus- picion, it was held that the railroad corporation was not liable for exemplary damages. Newman v. N. Y., L. HE. & W. R. R. Co., 54 Hun, 335, 27 St. Rep. 135, 7 N. Y. Supp. 560. Where the defendant, an attorney, secured an illegal body exe- cution against the plaintiff, under which he was arrested and im- prisoned, it was held that there being no proof of malice the jury could award him such damages as necessarily and naturally re- sulted from the arrest, but that a verdict awarding damages in excess of this should be set aside. The verdict in this instance was $5,000, and was set aside. Baker v. Secor, 6 St. Rep. 735. Where a first verdict for $3,000 was set aside as excessive, the court refused to set aside a subsequent verdict of $2,750. Dodge v. Alger, 21 J. & S. 107. For a case where the verdict was set aside as excessive, see Bocock v. Cochran, 32 Hun, 521. Also Baker v. Secor, 6 St. Rep. 735. ; . In Thorp v. Carvalho, 14 Mise. Rep. 559, 36 N. Y. Supp. 1, it was held that a verdict of $1,000 was not excessive, though the plaintiff was only locked up for one and one-half hours. “In arriving at the amount of damages he has suffered we must con- sider the injury to his reputation besides any actual injury he has sustained. It is difficult to measure the damage suffered by any one in his business and private reputation, but under the circumstances of this case we do not think that the verdict should be set aside as excessive, or that the jury were influenced by preju- dice in awarding the amount they did.” 650 FALSE IMPRISONMENT. Art. 16. Damages. Where a case does not disclose that any point is made as to the right of the plaintiff to recover punitive damages, and there is no exception upon this point, the Court of Appeals has no au- thority to review the question as to excessive damages or to de- termine whether the damages recovered were larger than was warranted by the testimony. Thorne v. Turck, 94 N. Y. 97. The defendant may give evidence tending to explain his mo- tives for the purpose of mitigating punitive damages. Brown v. Chadsey, 39 Barb. 253. Wherever exemplary damages are claimed all the circumstances connected with the transaction tending to explain the motive of the defendant, both to show that he acted maliciously and also to show that he acted in an honest belief that he was justified, or that he acted under a sudden impulse and passion caused by plain- tiff’s conduct, are admissible in evidence. So held in an action for assault and battery and false imprisonment. Voltz v. Block- mar, 64 N. Y. 440. Craven v. Bloomingdale, 30 Misc. Rep. 650, 64 N. Y. Supp. 262, affirmed 54 App. Div. 266, cited on p. 647. This suit was ravarsed 171 N. Y. 439, and it was held, that the master cannot be held for vindictive, wanton, or malicious acts of the servant, unless there is proof to implicate the master and make him parti- ceps criminis in the acts of the servant. It must appear, in order to hold the master in such case, that he expressly or impliedly au- thorized or ratified them. CHAPTER Xy. LIBEL AND SLANDER) PAGE ARTICLE I. History — Bibliography ................. 651 II. Definitions and distinctions ..........,.... 653 TIT. Remedies .... 0.0... 0. cece cece cece 658 BEY lei Girt cine tis Secret Aenea coalts as bree 662 INF gas DD a a ad ok hs Seth ne ces 680 VI. Interpretation, construction, and application OF JANGUE RG jo wok ses SoS eae diseusesnes 701 VII. Publication and repetition ............... 707 NDE Mila eee a ihe i a sao cata de ddd 716 BMG: PGE OMAR Gr cs rac ated coc was Gena eee ume 723 Me EHEDEY Widths aay awa nae we eee ee 764 ely Adit sah manwdyaeumebienadweeeeedes 768 DULY, EVIUGNCH scwcd reli Ul areata aston 801 XIII. Procedure and trial ..............00000 813 OW es WaMmnpes: isd ae oe keepiareuuagenae oes’ 822 XV. Slander of title — Libel on business........ 831 ARTICLE I. HISTORY — BIBLIOGRAPHY. ao Suppiviston 1. Historical .............. 00 cece cece eee 651 2. Text-books and authorities .............0. 652 SUBDIVISION 1. Historical. A very full and complete resumé of the history of Law of Defamation is given in Newell on Libel and Slander, pages 1-31, reviewing the acts of the ancient lawmakers, commencing with the Mosaic law and citing largely from Pentateuch and Psalms. The most interesting, although, perhaps, not most instructive, citation being from Deuteronomy XXII, 13 to 19. This is fol- lowed by citations as to the laws of ancient Egypt, comments upon Athenian law, and a very full abstract of the Civil law upon the subject, in the course of which he contrasts the subtleties of our law upon the subject with the Civil law, saying: “ The Roman [651] 652 LIBEL AND SLANDER. Art. 1. History — Bibliography. Law had at least the merit of simplicity.” He says Justinian in the Institutes classed libel and defamation as a private injury of the highest degree, citing from the Institutes the statement “Tnjury may be done, not only by ‘beating and wounding, but also by slanderous language * * * by writing a defamatory poem or history, or by maliciously causing another so to do.” The treatment of the topic shows careful examination and thorough research. The earlier history of the English Law of Defamation, says a writer in the Encyclopedia Britannica, is somewhat obscure. Civil actions for damages seem to have been frequent so far back as the reign of Edward I, but at that time there was no distinc- tion between words written and spoken, and, in some instances, such cases were within the jurisdiction of the Ecclesiastical Courts. It is stated further that the first fully reported case in which libel is affirmed generally to be punishable at common law was tried in the Star Chamber in the reign of James I. Newell (p. 30) states that no action for slanderous words ap- pears to have been brought before the reign of Edward III, and that this action was so rare even then that but one is found during the whole reign of that prince. He traces the growth of the action down to the time of Coke, in a single volume of whose reports seventeen adjudged cases are to be found on the subject. The principal historical interest of the law of libel relates to indictments for libel on the criminal side of the court in connec- tion with the rulings of Lord Mansfield in the celebrated State trials about the commencement of the last century in which Erskine appeared for the defendants, and insisted that the jury should determine the question as to whether the language used was or was not a libel. The agitation of the subject resulted in the passage of what was known as “ Fox’s Libel Law,” by which the jury were entitled to give a general verdict in criminal cases on the whole matter put in issue. SUBDIVISION 2. Text-Books and Authorities. In addition to the standard works upon torts in which this sub- ject is treated more or less fully, several treatises are exclusively devoted to the law of libel and slander. Holt’s Law of Libel, first American edition, 1818, is the ear- LIBEL AND SLANDER. 653 Art, 2. Definitions and Distinctions. liest in point of time, but has become practically obsolete. Starkie was for many years a standard work on the subject and passed through at least three American editions, and several English editions by Folkard, one so late as 1897, but has been superseded by later works in this country. Flood’s Treatise, published in London in 1880, is but little known here, and does not seem to have been republished in Amer- ica. The work of Odgers is best known and most frequently cited in England. Fraser on the Law of Libel and Slander has re- cently gone through a third edition. Townshend on Libel and Slander was first published in 1868, and has gone through four editions, the latest being 1890. It is a standard treatise. It contains a very complete bibliography of the subject, and has been followed by Newell’s work, first published in 1890, second edition in 1897, which is, aside from being a treatise upon the subject, a full digest of the English and American authorities. The subject is treated in Wait’s Action and Defenses; Slander (vol. 5), page 727, ete.; Libel (vol. 4), page 281, ete. The American and English Encyclopedia of Law (2d ed., vol. 18), at page 851, contains a very complete and carefully pre- pared digest of the law upon this subject, citing a large number of English and American authorities. Elliott on Newspaper Libel (London, 1884) is a monograph pointing out how the law has been modified as to newspaper libel by Act of Parliament of 1881. The Law of the Press, by Fisher & Strahan (London, 1898), deals exclusively with that phase of the law of libel expressed in the title. ARTICLE II. DEFINITIONS AND DISTINCTIONS. ge Susprviston 1. Libel and slander distinguished.........-- 653 2. Doctrine of special damage.....--++-++++ 656 SUBDIVISION 1. Libel and Slander Distinguished. Defamation is false imputation upon one’s character, or repu- tation, in the way of slander or libel. Whenever language is 654 LIBEL AND SLANDER. Art. 2. Definitions and Distinctions. spoken of as defamatory it is understood to be false. Bigelow on Torts, 149. Defamation may be either oral or written; in the former case it, is called Slander; in the latter Libel. Underhill on Torts, 119. Defamation is a false publication calculated to bring one into disrepute. Hale on Torts, 281. It is divided into two classes, written defamation called libel, oral defamation termed slander. Pollock on Torts, 287; Newell on Slander and Libel, 32. “ Libel is defamation published by means of writing, printing pictures, images, or anything that is the object of sight. Slander is defamation without legal excuse, published orally, by words spoken, being the object of the sense of hearing. Both libel and slander are but different methods of accomplishing the same wrong, differing mainly in the manner of publication.” Newell on Slander and Libel, 33; Cooley on Torts, 1938. A defamatory statement is a statement concerning any person which exposes him to hatred, ridicule, or contempt, or which causes him to be shunned, or avoided, or which has a tendency to injure him in his office, profession, or trade. Such a statement, if in writing, printing, or other permanent form, is a libel; if in spoken words or significant gestures, a slander. Fraser, 90. “Tt is well settled that an action may be maintained for the publication of written words when it could not be maintained for the publication of the same words by mere oral discourse ; the rule being, in short, that oral words which tend to disgrace the person of whom they are spoken, and which do not impute the commission of crime are not actionable without proof of special damage, whereas written words, the manifest tendency of which is seriously to hurt another’s reputation, are actionable without proof of special damage, even though the commission of no crime be imputed.” 18 Am. & Eng. Encye. of Law (2d ed.), 863. A favorite distinction is that in slander intelligence is commu- nicated to the sense of hearing; in libel, to the sense of sight. Another is that in slander, the defamatory matter has a fugitive form. In libel it is embodied in a permanent form. In slander, a production and publication are identical; while in libel its pro- duction is one thing and its publication another. Hale on Torts, 283; Cooley, 198. Abusive words, which if spoken only, would not be actionable, LIBEL AND SLANDER. 655 Art. 2. Definitions and Distinctions. may become so when written, printed, or published. 4 Waite’s. Actions and Defenses, article Libel, 282, citing Savile v. Jardine, 2 TL Bl. 532; Chase v. Whitlock, 3 Hill, 139. Written utterances are, in the absence of special ground, of justification or excuse, wrongful as against any person whom they tend to bring into hatred, contempt, or ridicule. Spoken words are actionable only when special damage can be proved to have been their proximate consequence, or when they convey imputa- tions of certain kinds. Pollock on Torts, 288. Actionable words are doubtless such as naturally imply damage to the party; but it must be borne in mind that there is a marked distinction between slander and libel, and that many things are actionable when written or printed and published which would not be actionable if merely spoken, without averring and proving special damage. Pollard v. Lyon, 91 U. 8. 225 (228), citing Clement v. Chivis, 9 Barn. & Cres. 174; McClurg v. Ross, 5 Binn. 219. False defamatory words, if written and published, constitute a libel; if spoken, a slander. Chase v. Southwick, 9 Johns. 214. Gaynor, J., in Cady v. Brooklyn Union Publishing Co., 23 Misc. Rep. 409, 51 N. Y. Supp. 198, cites numerous authorities and considers very fuily the distinction between libel and slander. He also discusses what constitutes libel, in a civil, and what in a criminal, proceeding. “Verbal imputations, however gross, may die with the breath which sent them forth, and be forgotten with the excitement which produced them. But written or printed charges of the same im- port remain permanently upon the record, and by means of the press are multiplied and sent abroad through the world, as far as the name or fame of the injured individual may extend, to destroy his character and embitter his feelings through his whole life, and even to degrade his memory in: the estimation of those who may come after him. The distinction stands on a broad and rational foundation, and should not therefore be subverted unless we are compelled to do so by precedents hearing directly upon the question. The distinction has been long recognized and acted upon, and seems to be firmly established.” Stone v. Cooper, 2 Den. 293 (305). “There is a distinction between oral and written or printed slander, which is noticed in all the books; and the latter is deemed. LIBEL AND SLANDER. an qe ou Art. 2. Definitions and Distinctions. much more pernicious, and will not so easily admit of justifica- tion.” Dole v. Iyon, 10 Johns. 460. ~ It may be observed that there exists a decided distinction be- tween words spoken, and written slander. To maintain an action for the former cause, the word: must either have produced a temporal lozs to the plaintiff, by reason of special damage sus- tained from their being spoken, or they must convey a charge of some act criminal in itself, and indictable as such, or they must impute some indictable offense involving moral turpitude. To maintain an action for a libel it iz not necessary that an indict- able offense should be imputed to the plaintiff. If a libel holds a party up to public scorn, contempt, and ridicule, it is actionable. (9 Johns. 214, 7 Johns. 264.3)” Van Ness v. Hamilton, 19 Johns. 367. The definition of libel is much broader than that of slander. Every slander is a libel, if published by writing, but there are many libels which are not slander. Any false publication by writing which exposes one to ridicule, hatred,contempt, or obloquy, or causes him to be shunned or avoided, is a libel per se, though if spoken it may be no slander. The definition of slander per se is not general, like that of libel, but is restricted and specific. Stmpson v. The Press Publishing Co., 33 Mise. Rep. 229, 67 N. Y¥. Supp. 401. SUBDIVISION 2. Doctrine of Special Damage. Where the law does not presume damages the damage must be temporal and not too remote. To make that class of word: ac tionable the consequences must be such as, taking human nature as it is, with its infirmities, and having regard to the relationship cf the parties concerned, might fairly and reasonably have been anticipated and feared would follow from the speaking of the words. Ringwood on Torts. 157-160. It will be noted, as is stated by Bigelow on Torts, 155. that the clear distinction between the class of actions where words are actionable per se, and those which do not fall under those heads. is that the plaintiff, in the first instance, must prove damages in order to sustain the action, while im the classes defined as action- able per se damage is presumed. Underhill on the Law of Torts (7th ed.), at p. 136, gives the following analysis of libel and slander bearing upon this point: LIBEL AND SLANDER. 657 Art, 2. Definitions and Distinctions. “(1) The imputation must be false since the truth is a good defense. (2) It must be defamatory. (3) It must have been published. (4) It must have been either expressly or impliedly malicious, and in case of slander, but not of libel, a fifth element must exist, namely, actual damage must be proved unless it would be implied from the nature of the defamatory words. It follows that if any one of the first four elements enumerated in case of libel, or any one of the five in case of slander, is absent, the action cannot be maintained.” Tn order to maintain an action for slander where the words are not actionable per se the plaintiff must prove some definite tem- poral loss. Fraser on Libel and Slander, 21. To maintain an action upon words which are not libelous or slanderous per se plaintiff must have suffered some special damage and the recovery is limited to compensation therefor. 18 Am. & Eng. Encye. of Law, 1085. Special damages are such as are not inferred from the words themselves. Such damages must be specially claimed in the plead- ing and evidence given on the trial as to the damage resulting therefrom. When on their face the words must have injured plaintiffs reputation, they are said to be actionable in themselves, but where this is not the case, evidence must be given to show some appreciable injury following their use. The rule is that all dis- paraging words become actionable when followed by special dam- age, such as the law does not deem too remote. Newell, 849, cit- ing Cook on Defamation, 22; Odgers, 89; Pollard v. Lyon, 91 U. 8. 225; Griebel v. Rochester Printing Co., 14 N. Y. Supp. 848. Newell further, at p. 851, lays down the rule that damages arising from the speaking of the words, not actionable in them- selves, must be, first, actual and substantial; second, they must have occurred at the time of the commencement of the suit, and third, such damages must be the immediate consequences of the defamatory words. Citing to the latter proposition Pettibone v. Simpson, 66 Barb. 492. The special damage arising from the use of words actionable per se must be averred in the complaint and proved upon the trial. Langdon v. Scherer, 43 App. Div. 607, 60 N. Y. Supp. 198, citing Bassel v. Elmore, 48 N. Y. 561. In Le Messena v. Storm, 62 App. Div. 150, 70 N. Y. Supp. 882, 42 658 LIBEL AND SLANDER. Art. 3. Remedies. the court considers cases in which it is necessary to allege and prove special damages, citing Odgers, p. 59, to the proposition that. spoken defamatory words are actionable whenever special damage has in fact resulted from their use. Newell, p. 181, that “the real practical test by which to deter mine whether special damage must be alleged and proved in order to make out a cause of action for defamation, is whether the language is such as necessarily must, or naturally and presumably will, occasion pecuniary dam- age to the person to whom it is spoken.” In Beech v. Ranney, 2 Hill, 309, it is said (312), per Bronson, J.; ‘When the words charged are not actionable in themselves the plaintiff must allege and prove that by reason of the slander he has sustained some pecuniary damage. It is not enough that he has suffered pain of mind, lost the society or good opinion of his neighbors, or the like, alas he has also been injured in his estate or property. It is enough, however, that the slander has prevented the party from receiving something of value which would otherwise have been conferred, though gratuitously.” It is further held that the special damages alleged must be the natural and immediate consequences of the speaking of the words. What constitutes special damage, and the method of proof will be considered under head of “ Evidence” and “ Damages.” The necessity for alleging special damages in the pleading, under “ Pleadings.” ARTICLE ITI. REMEDIES. PAGE. Suspivision 1. The criminal action ..... RD Ras a eR 658 9. The civil action .............00000e ce... 659 3. Remedy by injunction ..............-06. 660 SUBDIVISION 1. The Criminal Action. Like many other personal injuries libel may become a crime. The matter is defined and governed by sections 242-245a of the Penal Code. The crime consists only in libel, strictly speaking; the publica- tion must be “ otherwise than by mere speech.” A threat to publish a libel, or an offer to prevent the publication LIBEL AND SLANDER. 659 Art. 3. Remedies. of a libel with intent to extort money, is a misdemeanor. See Penal Code, § 254. So also is it a misdemeanor to furnish libelous information. Penal Code, § 254a. Extortion by means of a threat to publish or connive at the publication of a libel may, under certain circumstances, be black- mail. Penal Code, § 558. Written or verbal threats are misdemeanors. Penal Code, 8§ 559, 560, 561. SUBDIVISION 2. The Civil Action. PAGE. Buction dy Jurisdiction s,s civceaveeseeeevsenss vavees 659 2. Statute of limitations ..................200- 659 3. Survival and assignment of action............ 659 § 1. Jurisdiction By virtue of section 2863 of the Code of Civil Procedure, subdivision 3, justices of the peace cannot take cognizance of a civil action to recover for libel or slander. The justices’ courts of Albany and Troy have no jurisdiction in slander and libel. See Code Civ. Proc., § 3223. § 2. Statute of limitations Under the provisions of subdivi- sion 1, section 384, of the Code, actions to recover damages for libel and slander must be commenced within two years after the cause of action accrues. In Solomon v. Bennett, 62 App. Div. 56, 70 N. Y. Supp. 856, it is held that section 405 of the Code of Procedure must be so construed that an action for libel barred by section 384 is not saved from the operation of that statute by reason of an action having been commenced in the Federal court within two years after the cause of action accrued. § 3. Survival and assignment of action.— By section 3343, sub- division 9, of the Code, a personal injury is defined to include libel and slander. Subdivision 1 of section 1910 excepts an ac- tion to recover damages for a personal injury from those claims or demands which can be transferred or assigned. Hence a cause of action for libel and slander is not assignable. By sections 1 and 2 of the Revised Statutes, relative to abate- ment of actions, originally contained in article 1, title 3, chapter 8, of part 3 (Heydecker’s General Laws, 4970; Fiero Special Ac- tions, 1203), actions for libel and slander are excepted from the 660 LIBEL AND SLANDER. Art, 3. Remedies. ' provisions authorizing an action to be continued after the death of one of the parties, and in Moore v. Bennett, 65 Barb. 338, it is held that where the defendant in an action for libel died before final judgment, plaintiff was not entitled to an order con- tinuing the action against the executor of the deceased defendant, for. the reason that the action does not survive or continue. Shayne v. Evening Post Publishing Co., 56 App. Div. 426, 67 N. Y. Supp. 937, held that an action for libel against a corpora- tion abated upon the expiration of the life of the corporation by the limitation contained in its articles of incorporation, and could not be revived against the trustees of the corporation in office at the time of such expiration. This holding was, however, re- versed on appeal (168 N. Y. 70), and it was held that the rule that a personal action dies with a person does not extend to the civil death of either persons or corporations Hence an action for libel which has abated because of the dissolution of a corporate defendant may be continued and revived against the former di- rectors of the defunct corporation in order to reach the assets of that corporation in their hands, as trustees, created by section 30 of the General Corporation Law for the benefit of stockholders. SUBDIVISION 8. Remedy by Injunction. The earlier English doctrine was that the jurisdiction of chan- cery was limited to the protection of property rights which are remediless by the usual course of procedure at law, and that courts of equity would not restrain the publication of libels or works of a libelous character, even though such publications were calcu- lated to injure the character, business, or credit of the person aggrieved, and that he would be left to pursue his remedy at law. Newell, 246a. In Schuyler v. Curtis, 147 N. Y. 484, plaintiff brought an action to restrain defendants from making a statue or bust of a relative of plaintiff, and from causing it to be exhibited. The court held that such an action could not be maintained, and that the individual right of privacy which any person has during life dies with the person, and any right of privacy which survives is a right which pertains to the living only. The court does not appear to pass upon or even discuss the question as to whether the remedy sought by injunction could in any event have been LIBEL AND SLANDER. 661 Art. 3. Remedies. granted, simply holding that upon the facts of the case there is no ground for relief on the merits. In Marlin Fire Arms Co. v. Shields, 171 N. Y. 384, Parker, Ch. J., collates and discusses the authorities in this and other jurisdictions upon the right to grant an injunction restraining a libel, and the language of 8 Pai. 24 is cited with approval, to the effect, that it was held in the Court of Chancery, that there was no jurisdiction to restrain the publication of a libel by in- junction upon the bill filed by a party whose character or busi- ness would be injured by the publication. The opinion of Mr. Justice Bradley, in Kidd v. Horry, 28 Fed. 773, is discussed and followed. In that case the learned justice said: ‘ The applica- tion seems to be altogether a novel one, and is urged principally upon the line of recent English authorities. An examination of these and other cases relied upon convinces us that they de- pend on certain peculiar acts of Parliament of Great Britain, and not on general principles of equity jurisprudence.” But adds: “ Neither the statute law of this country nor any well- considered judgment of the courts has introduced this new branch of equity into our jurisprudence. There may be a case or two looking that way, but none we deem of sufficient authority to justify us in assuming the jurisdiction.” That case had been previously cited and followed in De Wick v. Dobson, 18 App. Div. 399, 46 N. Y. Supp. 390. In Roberson v. Rochester Folding Box Co., 171 N. Y. 538, argued before the Marlin Fire Arms Co.Case,but decided immedi- ately afterward, the court discusses the right of privacy and power of the court to grant an injunction restraining the use of litho- graphic likeness of plaintiff for business purposes, and holds that such right of privacy is not enforceable by injunction, although the discussion in the opinion of the chief judge seems to proceed entirely upon the lack of power to enforce the so-called right of privacy, and does not pass upon the question which was decided in the Marlin Fire Arms Co. Case, with reference to the right in any event to an injunction to restrain such publication. The opinion suggests that if the picture were libelous an action might lie, cites the English authorities holding the right to injunction to restrain a libel, and distinguishes them from the rule laid down -in this State; also comments upon Schuyler v. Curtis, 147 N. Y. 434, above referred to. (See L. 1903.) 662 LIBEL AND SLANDER. Art. 4. Slander. In Owen v. Partridge, 40 Misc. Rep. 415, the court held, citing and following 171 N. Y. 538, that injury to character and reputa- tion constitute nothing more than a libel and that the publication of an article cannot be restrained by injunction. So held where a person who had been arrested on suspicion of having committed a crime, and whose photographs and measurements were taken by the police department, sought to obtain a mandatory injunction to destroy or surrender the negative. Also held that plaintiff in that case could not have relief on the ground that his right of privacy had been invaded. Further held, that he could not have an injunction restraining the police department from exhibiting and publishing the photographs upon the ground that he was com- pelled to sit for his photograph, as that trespass was past. ARTICLE IV. SLANDER. So Susprvision 1. Definition and classification ............. 662 2. Words imputing crime ................. 664 3. Words injurious to office, profession, or TANG a ihe MRE Reem Ae wRe ow 671 4, Words imputing a contagious disease...... 677 5. Words imputing unchastity ............. 678 SUBDIVISION 1. Definition and Classification. To make oral words actionable, unless special damage be shown, they must impute some offense against the law, punishable crimi- nally, or the having a contagious disorder tending to exclude the party spoken of from society, or must be such as affect one injuri- ously in his office or trust, or in his trade, profession, or calling. To make written or printed words actionable, without proof of special damage, they must contain imputations which tend to subject one to disgrace, ridicule, or contempt. 18 Am. & Eng. Encye. of Law (2d ed.), 866. Slander is defined in 2 Kent’s Comm. 16: “ The injury consists in falsely and maliciously charging another with the commission of some public offense, criminal in itself, and indictable, and sub- jecting the party to an infamous punishment, or involving moral LIBEL AND SLANDER. 663 Art. 4. Slander. turpitude, or the breach of some public trust; or with any matter in relation to his particular trade or vocation, and which, if true, would render him unworthy of employment; or, lastly, with any other matter or thing by which special injury is sustained,” citing Brooker v. Coffin, 5 Johns. 188; Van Ness v. Hamilton, 19 Johns. 349 (367). In Pollard v. Lyon, 91 U. S. 225, opinion Clifford, J., at p. 226, it is said that definitions of slander will afford very little aid in disposing of any question ordinarily arising in such a controversy, unless where it becomes necessary to define the difference between oral and written defamation, or to prescribe the criterion to de- termine where special damage is claimed whether the pecuniary injury alleged naturally flows from the speaking of the words set forth in the declaration. The learned judge then gives a full and exhaustive definition of slander, citing numerous cases in England and this country, including the leading cases in this State; more especially upon the point as to when special damage must be proven in order to maintain the action. The principle is well settled that to maintain an action for words spoken, the words must either have produced a temporal loss to the plaintiff, by reason of special damage sustained from their being spoken, or they must convey a charge of some act criminal in itself, and indictable as such, and subjecting the party to an infamous punishment, or they must impute some indictable offense involving moral turpitude, or the breach of some public trust, or with some matter in relation to his particular trade or vocation, and which, if true, would render him unworthy of employment. Kinney v. Nash, 3 N. Y. 177. ' In opinion in Moore v. Francis, 121 N. Y. 199, at p. 203, it is said: “ The cases of actionable slander were defined by Chief Jus- tice De Grey, in the leading case of Onslow v. Horne, 3 Wils. 177, and the classification made in that case has been generally fol- lowed in England and this country. According to this classifi- cation, slanderous words are those which (1) import a charge of some punishable crime; or (2) impute some offensive disease which would tend to deprive a person of society; or (3) which tend to injure a party in his trade, occupation, or business; or (4) which have produced some special damage.” To this enumeration must be added the provision of the Code that in an action of slander brought by a woman for words imput- 664 LIBEL AND SLANDER. Art. 4. Slander. ing unchastity to her, it is not necessary to allege or prove special damages. § 1906. ; The necessity for showing special damage exists both in slander and libel, where the words are not actionable per se, and is considered under article II, supra. Also Damages, art. XIV, subd. 1. SUBDIVISION 2. Words Imputing Crime. The rule is that where the charge, if true, will subject the party charged to an indictment for a crime involving moral turpi- tude, or subject him to infamous punishment, then the words are in themselves actionable. Brooker v. Coffin, 5 Johns. 188. In Widrig v. Oyer, 13 Johns. 124, the court was urged to hold the rule to be that there must be a crime and moral turpitude. It was held, however, that the rule laid down in Brooker v. Coffin was the best criterion for determining whether words spoken were actionable. This rule was approved and followed in Martin v. Stillwell, 13 Johns. 275; Burtch v. Nickerson, 17 Johns. 217; Power v. Price, 16 Wend. 450 (457) ; Bissell v. Cornell, 24 Wend. 354; Halstead v. Nelson, 36 Hun, 149; Young v. Miller, 3 Hill, 21; Crawford v. Wilson, 4 Barb. 504, where it is said also that Cowen, J., lays down the rule in Young v. Miller, 3 Hill, 25, that “ every indictable offence, which is at the same time infamous or disgraceful in a general sense — any offence which detracts from the character of defendant as a man of good morals,” is embraced in the class of offenses involving moral turpitude. The rule laid down in the principal case is again cited and followed in Pike v. Van Wormer, 5 How. Pr. 171. The rule is considered in Wright v. Paige, 36 Barb. 438, opinion Bockes, J. It is said it is not enough that the words impute moral dereliction merely, but the offense charged must be also indictable, although it is not necessary that the offense should be punished by infamous punishment. This is held upon a re- view of the authorities, and it is further said that in Alexander v. Alexander, 9 Wend. 141, it was held sufficient to maintain the action, if the words charged would, if true, subject the party to criminal punishment of any description, stating that this case is cited, and that the rule is approved and adopted in Y. oung Vv. Miller, 3 Hill, 21, where the words imputed a crime involving moral turpitude, and for which the offender might be proceeded LIBEL AND SLANDER. 665. Art. 4. Slander. against by indictment, but the crime charged was a misdemeanor’ and not a felony. In Alexander v. Alexander the words charged. imputed “a crime involving moral turpitude,” namely, the forg- ing of defendant’s name to petition to the legislature. Bush v. Prosser, 13 Barb. 221, is also cited where a recovery was allowed. in slander, charging the defendant with keeping a bawdy-house, or house of ill-fame. It is not enough, however, that the charge imputed involves turpitude in a moral sense, but it must constitute an indictable. offense, upon conviction of which punishment may be inflicted. Anonymous, 60 N. Y. 262 (264). Words charging a misdemeanor were held slanderous in Brooks. v. Harrison, 91 N. Y. 88. To constitute slander the charge need not be an offense at common law; it is enough that, if true, it would subject one to indictment. Collyer v. Collyer, 50 Hun, 422, 21 St. Rep. 118, 3 N. Y. Supp. 310, citing provisions of Penal Code constituting offense charged a crime. An action will not lie for accusing the plaintiff of intention or attempt to commit a crime, if such attempt is not legally pun- ishable. Weed v. Bibbins, 32 Barb. 315. The words need not involve a positive charge of crime, but if by their fair construction they are intended as an imputation an action can be maintained. Such is the rule if they import a” criminal charge in their ordinary and natural sense, and there need not be the same certainty in stating the crime imputed as would be requisite in an indictment for acrime. Gorman v. Ives, 2 Wend. 534; Rundell v. Butler, 7 Barb. 260; Gibbs v. Dewey, 5 Cow. 503; Miller v. Miller, 8 Johns. 74. But there must be in some form an allegation that a specific crime has been committed, in order that an action may be main- tained. Steele v. Southwick, 9 Johns. 214; Andrews v. Wood- mansee, 15 Wend. 232; Goll v. Delesderniers, 26 Mise. Rep. 549, 57 N. Y. Supp. 475; Hatfield v. Sisson, 28 Misc. Rep. 255, 59 N. Y. Supp. 73, the latter case citing Havemeyer v. Fuller, 60 How. Pr. 316; Hemmens v. Nelson, 138 N. Y. 517. A charge imputing a crime is actionable, unless the thing is understood by the person to refer to an innocent transaction, or an explanation is made which conveys to the bystanders the fact that no such criminal imputation is made. Explanations not 666 LIBEL AND SLANDER. Art. 4. Slander. heard by hearers of the slanderous words do not relieve plaintiff from responsibility. The explanation must not only accompany the words, but must be sufficiently explicit to enable those who heard them to understand what they referred to, and that the crime which the words would naturally impute was not intended to be charged. Maybee v. Fisk, 42 Barb. 326; Van Aiken v. Caler, 48 Barb. 58; Phillips v. Barber, 7 Wend. 489. Although the words taken alone would be actionable as charging a crime, yet if they are both spoken and understood as referring to facts which do not constitute offense, an action cannot be main- tained. As to say, “they are highwaymen, robbers, and murder- ers,” uttered with reference to particular quarrel, not involving either of the crimes indicated; or calling a man “a thief,” if the words were used as merely referring to an alleged overcharge for services; or the words “you are a thief; you stole hoop-poles from D’s land,” where it was left for the jury to decide whether it was meant to charge plaintiff with taking poles already cut, which would be a felony, or only to charge cutting down or carry- ing away timber to make hoop-poles, which would amount to charge of trespass only. Van Rensselaer v. Dole, 1 Johns. Cas. 279; Quinn v. O’Gara, 2 E. D. Smith, 388; Roberts v. Champlin, 14 Wend. 120; Dexter v. Tabor, 12 Johns, 239. It must, however, in order to relieve defendant from responsi- bility appear that the facts could not in any view constitute the offense charged; as where plaintiff was charged with having “stolen ” an article where it might have been felonious or not, ac- cording to the intent. The words, “ You have stolen my wood,” were not explained, and might or might not impute a crime. Laine v. Wells, 7 Wend. 175; Alexander v. Alexander, 9 Wend. 141; Case v. Buckley, 15 Wend. 327. Where a slanderous charge is made which would be understood as imputing a crime, an action lies, although in the nature of things, such a crime could not have been committed unless it appears the charge was made only in the hearing of those who knew such a crime was impossible. Kennedy v. Gifford, 19 Wend. 296. Where words were spoken of transactions which were innocent, but were spoken without attendant explanation, so that they might have been understood as imputing a crime, it was held the action was maintainable. Phillips v. Barbour, 7 Wend. 439. LIBEL AND SLANDER. 667 Art. 4. Slander. Where language employed imputes a crime the ordinary mean- ing is to be given to the words, unless they are accompanied by an explanation giving to them a different meaning, or unless all the hearers understand that they refer to the transaction which would not constitute the crime charged. Hayes v. Ball, 72 N. Y. 418. The court is to inquire whether any connection in which the words were used were capable of construction imputing a crime, and whether they might have been so understood, and if the answer is in the affirmative it is a question for the jury whether defendant intended to charge a crime. Warner v. Southall, 165 N. Y. 496, citing Hayes v. Ball, 72 N. Y. 418. An imputation conveyed in the form of a question as “ Is M. H. the gentleman who wrote, etc., the individual who broke jail while confined on a charge of forgery?” may be actionable. Hotchkiss v. Oliphant, 2 Hill, 510. It is not a defense to an action for charging plaintiff with the commission of a crime that the transaction referred to took place in another State, or was barred by the statute of limitations. Van Ankin v. Westfall, 14 Johns. 238. Words charging a witness with swearing falsely in a judicial proceeding, imputing perjury, are actionable per se. Spooner v. Keeler, 51 N. Y. 527. A charge of having sworn falsely in order to be actionable must be a charge that such evidence was given in a legal proceed- ing, and that the evidence given was material to the issue. Brooker v. Coffin, 5 Johns. 188; Ross v. Rouse, 1 Wend. 475; Roberts v. Champlin, 14 Wend. 120. A mere general charge of having sworn falsely will not sustain an action for slander. Hopkins v. Beedle, 1 Cai. 347; Vaughan v. Havens, 8 Johns. 109; Bullock v. Koon, 9 Cow. 30. But words “ you have perjured yourself ” are actionable. Green: v. Long, 2 Cai. 91. So if the charge of having sworn falsely is alleged to have been made with reference to evidence given at a trial. Crookshank v. Gray, 20 Johns. 344; M’Kinly v. Rob, 20 Johns. 351. Any charge of false swearing which necessarily implies that it was committed in a legal proceeding gives foundation for an ac- tion. Sherwood v. Chace, 11 Wend. 38. As to what constitutes a charge of perjury sufficient to sustain 668 LIBEL AND SLANDER. Art. 4. Slander. an action, see Crawford v. Wilson, 4 Barb. 504; Walrath v. Nellis, 17 How. 72; Kern v. Towsley, 51 Barb. 385. No recovery can he had unless it is shown that the court or officer before whom the action was pending had jurisdiction of the subject-matter. Bonner v. McPhail, 31 Barb. 106. But it is not necessary that the false testimony alleged to have been given should have gone to the whole claim or defense in issue. Dayton v. Rockwell, 11 Wend. 140; Hutchins v. Blood, 35 Wend. 413. But it has been held that if the testimony charged to have been perjury was wholly immaterial, or that the part to which perjury related, if it related to part only, was immaterial, the action can- not be maintained. Wilbur v. Ostrom, 1 Abb. Pr. (N. 8.) 275. The burden seems to be upon defendant, if he claims the evi- dence given was irrelevant, to show that fact in defense. Power v. Price, 16 Wend. 450; Jacobs v. Fyler, 3 Hill, 572. See also Howard v. Sexton, 4 N. Y. 157. In Spooner v. Keeler, 51 N. Y. 527, this subject is considered by Lot, Ch. C., and Reynolds, C. In the opinion of the latter it is said that, “ although the complaint alleged pendency of the suit between the parties before a justice of the peace, and that the words were spoken in reference to evidence on the trial of that issue which was material to the result, the plaintiff was not bound to prove it; to show that it was immaterial, rested with the de- féndant.” Jacobs v. Fyler, 3 Hill, 572. The following words have been held to be actionable: “ You have perjured yourself as overseer.” Hopkins v. Beedle, 1 Cai. 347. “You have sworn to a lie knowingly, for which you stand in- dicted.” Pelton v. Ward, 3 Cai. 73. Saying of a witness giving material testimony in an action “ that is false.” McClaughry v. Wetmore, 6 Johns. 82; Hutchins v. Blood, 25 Wend. 413. To charge plaintiff with having sworn “ falsely,” adding a threat “to attend the grand jury about it.” Gilman v. Lowell, 8 Wend. 573. To say “ S. has sworn falsely and you can go to Squire B.’s and see it in the suit,” ete. Sherwood v. Chace, 11 Wend. 38. When defendants, speaking of the affidavit made by plaintiff. specifying the allegation which he deemed false, said that “ plain- LIBEL AND SLANDER. 669 Art. 4, Slander. tiff perjured himself,” it appearing that the affidavit was sub- stantially, but not literally, true, it was held that it was properly left to the jury to show in what sense the words were used. Cook v. Bostwick, 12 Wend. 48. It has been held that the words “ you have sworn false under oath, you have lied under oath,” etc., did not import a charge of perjury. Phincle v. Vaughan, 12 Barb. 215. But this seems to have been rather a question of pleading than of the substantive law. The words “ your boy stole my corn,” have been held action- able. Maybee v. Fisk, 42 Barb. 326. So have the words “ he swindled and robbed me.” Slayton v. Hemken, 91 Hun, 582, 36 N. Y. Supp. 249. . Defendant accusing plaintiff in the presence of others of theft, — Held actionable per se. Maeske v. Smith, 35 St. Rep. 541, 12 N. Y. Supp. 423. The words “he is a thief,’—- Held slanderous. McGibbon v. Young, 20 Week. Dig. 12. But as to the words “ You are a thief, you stole hoop-poles from B.’s land,” properly left to the jury to determine whether defendant intended to charge plaintiff with taking poles already cut, which would be a felony, or only to charge with cutting down and carrying away timber to make hoop-poles, which would only amount to a charge of trespass. Deater v. Tabor, 12 Johns. 239. To charge a person with “ removing a land mark,” is actionable, that offense being indictable and involving moral turpitude. ‘Young v. Miller, 3 Hill, 21. To charge a woman with keeping a bawdy-house or a whore- house, is actionable. Martin v. Stilwell, 13 Johns. 275; Wright v. Paige, 36 Barb. 438. So are the words “the people upstairs keep a whorehouse.” Cook v. Rief, 52 N. Y. Super. 302. The statement concerning plaintiff that “he was father of a child by a girl not yet 15 years old,” — Held slanderous. Dudley v. Nowill, 11 App. Div. 203, 42 N. Y. Supp. 681. To charge a man with having applied to defendant to “make away with a bastard child, of which he is the father,” is actionable. Demarest v. Haring, 6 Cow. 76. So as to a charge to destroy human life by administering medi- cines, with full knowledge of the deleterious effects. Marsh v. Davison, 9 Pai. 580. é 670 LIBEL AND SLANDER. Art. 4, Slander. To say of a woman, “ She took medicine to get rid of the child she was like to have; she did kill the child she was like to have.” Widrig v. Oyer, 13 Johns. 124. An allegation that one has killed a human being is actionable in itself. Carroll v. White, 833 Barb. 615. So to charge a man with having criminal intercourse with a woman, and having aided her in securing an abortion. Bissell vy. Cornell, 24 Wend. 354. So of a charge of blackmailing. Robertson v. Bennett, 44 N. Y. Super. 66. The charge of having scuttled a ship to get the insurance is actionable. McGibbon v. Young, 20 Week. Dig. 12. To call one a “dealer in counterfeit money.” Pike v. Van Wormer, 6 How. Pr. 99. But not to charge one with having “ passed counterfeit money.” Pike v. Van Wormer, 5 How. Pr. 171. Nor to call one a “ bogus pedler.” Pike v. Van Wormer, supra. To charge one with having burnt his building, with having intent to defraud his insurers, is actionable. Case v. Buckley, 15 Wend. 327. So also ‘as to the charge of arson, and evidence on the trial. Warner v. Southall, 31 App. Div. 875, 52 N. Y. Supp. 320. The words “ He handed papers to influence or bribe the jury,” properly pleaded, are actionable. Gibbs v. Dewey, 5 Cow. 5038. Also the words “ He altered the note with the view of getting better security,” “ He altered the note for the purpose of binding me to pay it.” Harmon v. Carrington, 8 Wend. 488. As to whether an action can be maintained for alleging that defendant forged a name to a petition to the legislature, see Alex- ander v. Alexander, 9 Wend. 141. Words charging plaintiff with selling and disposing of mort- gaged chattels are actionable. Vause v. Middlebrook, 3 St. Rep. aT. As is a charge of smuggling goods into the country. Stilwell v. Barter, 19 Wend. 487. The words “ He swindled and robbed me” are slanderors per se and impute a crime. Slayton v. Hemken, 91 Hun, 582, 36 N. Y. Supp. 249, citing Hays v. Ball, 72 N. Y. 418; Phillips v. Barber, 7 Wend. 489; Solomon v. Dutton, 10 Bing. 402; Tomlinson v. Brittlebank, 4 B. & A. 680. ) LIBEL AND SLANDER. 671 Art. 4. Slander. Stating that plaintiff’s conduct in a shooting match was a swindle, and that he had swindled before, is not actionable per se. Hislie v. Walther, 4 N. Y. Supp. 385. To call a person a swindler and rogue or a scoundrel is not actionable. Chase v. Whitlock, 3 Hill, 189; Quinn v. O’Gara, 2 E. D. Smith, 388; Hishe v. Walther, 4 N. Y. Supp. 385. SUBDIVISION 3. Words Injurious to Office, Profession, or Trade. Defamatory words are actionable which directly tend to the prejudice of any one in his profession, trade, or business. Starkie on Slander, 117; Newell, 168; Pollard v. Lyon, 91 U. S. 225. An imputation of this character to be actionable without special damage must touch the person to whom it is spoken, in his profession, trade, business, or office. Ringwood, 162; Ayre v. Craven, 2 A. & E. 2. In Dole v. Van Rensselaer, 1 Johns. Cas. 330, it was held that words spoken of a person in relation to his office of sheriff and amounting to a charge of malpractice are actionable. A very full note is added to this case citing numerous au- thorities and illustrations of slanderous words spoken of on: in his office, profession, or trade. The principal case was cited upon the point in Kinney v. Nash, 3.N. Y. 177 (178), where it is held upon the authority of Oakley v. Farrington, 1 Johns. Cas. 129, that it is not enough that the words may tend to injure one in his office or calling, unless they are spoken of him in his official or business character. The rule is that words not actionable in themselves will not become so by being spoken of one filling an office or carrying on the business unless spoken of him in such official or business capacity. Van Tassel v. Capron, 1 Den. 250; Ireland v. Mc- Garvish, 8 N. Y. Super. 153; Harcourt v. Harrison, 1 Hall, 474. Any charge of dishonesty against an individual in connection with his business, whereby his character in such business may be injuriously affected, is actionable. Fowles v. Rowen, 30 N. Y. 20. Andrews, J., in Sanderson v.- Caldwell, 45 N. Y. 398 (405), lays down the rule as derived from the authorities, and with which he says most cases can be reconciled, as follows: “ When the words spoken of have such a relation to the profession or occupation of the plaintiff that they directly tend to injure him 672 LIBEL AND SLANDER. Art. 4. Slander. in respect to it, or to impair confidence in his character or ability, when, from the nature of the business, great confidenee must necessarily be reposed, they are actionable, although not applied by the speaker to the profession or occupation of the plaintiff; but when they convey only a general imputation upon his char- acter, equally injurious to any one of whom they might be spoken, they are not actionable, unless such application be made.” It is also necessary in order that such words may be actionable to show that the person concerning whom they were uttered was, at the time they were uttered, carrying on his profession, trade, or business, or filling his office. Ringwood, 161; Bellamy v. Burch, 16 M. & W. 590; Gallwey v. Marshall, 9 Exch. 295. Slander will not lie, for words spoken of the person in the dis- charge of official duties, if the office has ceased at the time of the speaking of the words. Forward v. Adams, 7 Wend. 205, cited with approval, Cramer v. Riggs, 17 Wend. 209. Whatever words have a tendency to hurt or bring ridicule or contempt upon the person, or are calculated to prejudice a man who seeks his livelihood by any trade or business, are actionable when proved to be spoken in relation thereto, and unless the defendant shows a legal excuse, the plaintiff is entitled to recover without allegation or proof of special damage. Keene v. Tribune Assn., 76 Hun, 488, 27 N. Y. Supp. 1045. The rule that words spoken or written of any persons holding office or engaged in any trade or profession, to be actionable in themselves, must “ touch him in his office,” is not to be questioned. Potter v. N. Y. Evening Journal Publishing Co., 68 App. Div. 95° (98). It was held in this case that certain words spoken with regard to a minister were libelous, although not spoken of him in his ministerial or clerical capacity, because they tended to deprive him of his benifice, to subject him to deposition from his office, or to represent him as unfit to fill that office. Words imputing incontinency of a clergyman are actionable in themselves. Demarest v. Haring, 6 Cow. 76, and cases cited. To render words spoken concerning or relating to a single case or transaction of a person in his profession slanderous per se, their plain and natural import must necessarily be to charge gross ignorance or want of skill or integrity in his calling or profession generally. So held where the words were “ That the plaintiff did * LIBEL AND SLANDER. 673 Art. 4, Slander. it (cut off the arm) to get his name up and get a big fee.” Lynde y. Johnson, 39 Hun, 12, citing Folkard’s Starkie, 110; Southee v. Denny, 1 Exch. 196; Foot v. Brown, 8 Johns. 64; Fowles v. Bowen, 30 N. Y. 20. It was held in Foot v. Brown, 8 Johns. 64, that words charging a professional man with want of knowledge or skill in relation to a particular case are not actionable unless upon showing special damage. In Cruikshank v. Gordon, 118 N. Y. 178, it was held that it was unnecessary to consider this question as much of the language complained of in that case related to plaintiff’s general compe- tency and fitness to practice as a physician, but the court laid down the general rule that statements made in respect to a prac- ticing physician imputing to him general ignorance of medical science, incompetency to treat diseases, and a general want of professional skill are slanderous and actionable without proof of special damages. Citing Secor v. Harris, 18 Barb. 425; Fite- gerald v. Redfield, 51 Barb. 484; Bergold v. Puchta, 2 T. & C. 532; Lynde v. Johnson, 39 Hun, 12. Where the reflection is not simply upon the character of the plaintiff as a man, but upon his character as a physician, imput- ing to him want of those qualifications which attract patronage and are essential to his calling, and tends to undermine him in the confidence of the community, it is actionable without proof of special damages. Krug v. Pitass, 162 N. Y. 154. The words, “ He is no doctor; he bought his diploma for $50,’’ spoken of plaintiff in his professional character, are actionable per se. Bergold v. Puchta, 2 T. & C. 532, holding that it is well- settled law that words published of a physician falsely imputing to him general ignorance or want of skill in his profession are actionable in themselves on the ground of presumed damage. To say of a physician, although in reference to a particular cease, “ He killed my children; he gave them teaspoonful doses of calomel and it killed them; they died the same day,” is actionable without proof of special damage, since it imputes an act evincing gross ignorance and unskillfulness, such as cannot fail to injure his general reputation and deprive him of general confidence. Secor v. Harris, 18 Barb. 425. To call a physician a “quack” is a fact charging him with want of necessary knowledge and training to practice medicine, 43 674 LIBEL AND SLANDER. Art. 4. Slander. and is actionable without proof of special damage. White v. Car- roll, 42 N. Y. 162. The question is fully considered in Mattice v. Wilcox, 147 N. Y. 624, and it was held that a publication which in effect charges an attorney-at-law with incapacity to perform the ordi- nary duties of his profession in a given class of actions, as, for example, incapacity to defend actions for negligence brought against a municipal corporation, in regard to which he has held himself out as capable of accepting employment, is equivalent to a general charge of incapacity in his profession and as libelous per se without allegation or proof of special damages. Citing Moore v. Francis, 121 N. Y. 199. In Garr v. Selden, 6 Barb. 416, it is held that to impute to a professional man ignorance or want of skill in a particular trans- action is not actionable; that to be actionable, words of that char- acter must be spoken or written of him generally; and further, that words imputing to a lawyer a want of integrity, whether they are used generally of his profession, or as to some one transac- tion, are actionable. Held, actionable to charge an attorney with the revealing and disclosing confidential communications made to him by his client, and for the purpose of aiding and abetting another person with whom he has combined and colluded and of injuring his client. Reversed on appeal, 4 N. Y. 91, upon the ground that the statement was privileged. Where it is evident from the face of the complaint that the ‘words were spoken of and concerning plaintiff’s trade a cause of action is set out, although the words did not mention the trade or business of plaintiff. Fitzgerald v. Geils, 84 Hun, 295, 32 N. Y. Supp. 306. Words spoken of a hotel-keeper in his business stating that he kept no accommodations, and that a person could not get a decent meal or a decent bed if he tried, are actionable per se. Trimmer v. Hiscock, 27 Hun, 364, citing Burtch v. Nickerson, 17 Johns. 217; Fitzgerald v. Redfield, 51 Barb. 484; Ireland v. McGarvish, 1 Sandf. 155. A charge against a merchant that he is dishonest and has been in the habit of filling at his store an oil can containing only five gallons and charging the customer for six gallons. White v. Chestro, 16 Week. Dig. 186. A statement of one who is engaged in dealing in and racing LIBEL AND SLANDER. 675 Art. 4. Slander. horses, “He is no sportsman and had to leave a city on account of a turf fraud,” is actionable per se, as it tends to injure him in his business. Gideon v. Dwyer, 87 Hun, 246, 33 N. Y. Supp. 754. A false statement that a defendant had a claim upon plaintiff’s place of business, and that if a certain brewer sold beer to plain- tiff, defendant would, under his agreement with plaintiff, hold that person liable for its claim against the plaintiff, is actionable. Ryan v. Burger & Hoover Brewing Co., 37 St. Rep. 287, 13 N. Y. Supp. 660. An allegation that defendant published in regard to plaintiff that plaintiff’s services had been dispensed with, that the reason for the change was the careless manner of attending to business, and that his place and that of others would be filled with com- petent parties who would attend to the affairs in a more business- like manner, states words to injure plaintiff in his business. Ratzel v. N. Y. News Publishing Co., 35 Mise. Rep. 487, 71 N. Y. Supp. 1074. But an allegation that defendant furnished a customer with a domestic article instead of an imported one ordered by him, and in explanation told such customer, also a customer of plaintiff, that plaintiff had said it made no difference about the imported cabinet, to send the customer a domestic one, and plaintiff would make everything all right with him, is bad on demurrer. The language is not libelous per se. Verbeck v. Duryea, 36 Mise. Rep. 249, 73 N. Y. Supp. 346. Words imputing to a mechanic want of skill or knowledge in his craft are actionable per se, if they are clearly shown to have been spoken with reference to his occupation, and if the employ- ment is one requiring peculiar knowledge and skill. Fitzgerald v. Redfield, 51 Barb. 484. To say of a merchant, “You keep false books,” is actionable as calculated to injure his credit. As are like words with regard to a blacksmith. Backus v. Richardson, 5 Johns. 476; Burtch v. Nickerson, 17 Johns. 217, citing Feise v. Linden, 3 Bos. & P. 372. In 17 Johns. 217, earlier English authorities are cited to the same effect. Loomis v. Swick, 3 Wend. 205; Sewall v. Catlin, 3 Wend. 291; Mott v. Comstock, 7 Cow. 654; Ostrom %. Calkins, 5 Wend. 268 : Tobias v. Harland, 4 Wend. 531. 676 LIBEL AND SLANDER. Art. 4. Slander. It :s not actionable to charge a man with keeping false books of account unless the keeping of books is an incident to his busi- ness. Rathbun v. Hmigh, 6 Wend. 407. Words imputing insolvency of a*person, although not a mer- chant, to whom credit is given, are actionable. Carpenter v. Dennis, 3 Sandf. 305. Words spoken of a merchant importing that he is unable to pay his debts, as “ Poor H., it is hard for him to lose his debt,” held actionable. Mott v. Comstock, 7 Cow. 654. So also the words, “I understand there is trouble with S8.,” spoken of a merchant, held actionable as implying want of credit or responsibility. Sewall v. Catln, 3 Wend. 291. Words spoken of a drover, “ He is not good for the debt; I doubt whether you ever see him again,” were held proper to be sent to the jury to determine whether they implied insolvency. Calkins v. Wheaten, 1 Edm. 226. The words, “ There is a time when men fail who must fail, and O.’s time has come,” are actionable as imputing insolvency. Ostrom v. Calkins, 5 Wend. 263. Words imputing insolvency are actionable. Ostrom v. Calkins, 5 Wend: 263; Fry v. Bennett, 28 N. Y. 324. Words spoken or published of a party as a merchant or trades- man in relation to the solvency, to be actionable, must in their common acceptation imply a want of credit or responsibility. Lewis v. Chapman, 16 N. Y. 369 (875). But a statement by an auctioneer in refusing to accept plaintiff’s bid, that he was irresponsible, is not actionable, unless express malice is shown. (Green v. Meyer, 78 St. Rep. 81, 44 N. Y. Supp. 81. A charge that plaintiff “is a drunkard,” and by reason of his drunkenness he is no good any more “as a mechanic.” is action- able. Fitzgerald v. Getls, 84 Hun, 295, 32 N. Y. Supp. 306. To say of a brick mason that “he is no mechanic; he could not make a good wall, or do a good job of plastering; he is no workman, and that he is a botch,” is actionable. Fitzgerald v. Redfield, 51 Barb. 484. Words to be actionable must impute fault to the plaintiff him- self, not to the article in which he deals. Thus, to say of a watch- maker that “his watches are bad,” imputes a fault to the article LIBEL AND SLANDER. 677 Art. 4. Slander. in which he deals, and are not slanderous words as to the plaintiff. Tobias v. Harland, 4 Wend. 537. A statement that a person is afraid to go to the house of plain- tiff alone, stating that he is a desperate, dangerous man, is not actionable, although spoken of the keeper of a public house. Jre- land v. McGarvish, 1 Sandf. 155. See “ Slander of Title” and “ Libel upon Business,” art. XV. SUBDIVISION 4. Words Imputing a Contagious Disease. Words which impute that a party is affected with a contagious disease, which would exclude him from society, are actionable in themselves, without proof of special damage. Newell (p. 198) states that leprosy and the venereal diseases are the only diseases included in this category. This is also the rule laid down in Starkie, p. 113; Pollard v. Lyon, 91 U. S. 225 (226). To falsely publish that a man has leprosy is actionable per se. Simpson v. Press Publishing Co., 30 Misc. Rep. 228, 67 N. Y. Supp. 401. Am. & Eng. Encye. of Law, vol. 18, p. 932, includes the plague as one of the diseases of this character. As does Fraser (p. 29), citing Taylor v. Perkins, Cro. Jac. 144; Rolle’s Abridgment, 44; Villers v. Mousley, 2 Wils. 403; Bloodworth v. Grey, 7 McGr. 334, as illustrations of the diseases included in the general defini- tion. The rule has been applied in this State in Williams v. Hol- redge, 22 Barb. 396, where it was said of a woman: “ She has the venereal disease.” In Hewit v. Mason, 24 How. Pr. 366, it was held that the words “ Nothing ails him but the pox; he is rotten with it; he got it,” ete., were actionable. But such an allegation used in the past tense is not actionable, since the words must impute a present continuance of the disease. Carslake v. Mapledoram, 2 T. R. 473; Pike v. Van Wormer, 5 How. Pr. 171; Smith v. Cook, 1 Alb. L. J. 162. It was held in Upton v. Upton, 51 Hun, 184, 4 N. Y. Supp. 936, that the words: “The plaintiff had a bad disease,” does not necessarily impute a venereal disease. It was further held that it was not an imputa- tion of want of chastity. Newell, in closing the discussion of the subject, says that in respect to the terms in which the imputation is conveyed, they 678 LIBEL AND SLANDER. Art. 4. Slander. may either expressly impute the disease or by the aid of collateral circumstances render the implication unavoidable. SUBDIVISION 5. Words Imputing Unchastity. At common law, words imputing unchastity or adultery to a woman, married or unmarried, were not actionable unless proof was made of special damage. Newell, 163; 18 Am. & Eng. Encye. of Law, 932; Brooker v. Coffin, 5 Johns. 188; Buys v. Gillespie, 2 Johns. 115; Bradt v. Towsley, 18: Wend. 253; William v. Hill, 19 Johns. 305; Anonymous, 60 N. Y. 262; Terwilliger v. Wands, 17 N. Y. 54. In Erwin v. Dezell, 64 Hun, 391, 19 N. Y. Supp. 784, it was held that words alleging that plaintiff had been arrested for bas- tardy and paid a sum to settle the matter were not actionable per se, the words not being spoken of the plaintiff in regard to his vocation or daily life. This rule has been changed by section 1906 of the Code of Civil Procedure, so far as slander of a woman is concerned. The section is a re-enactment of chapter 219, Laws of 1871, and pro- vides: “In an action of slander, brought by a woman, for words im- puting unchastity to her, it is not necessary to allege or prove special damages. If the plaintiff is married, the damages recov- ered are her separate property.” Under the decisions in this State, it has been held that un- chastity in a woman means that she has had unlawful sexual in- tercourse, or is guilty of such conduct as would tend to indicate that she was ready and willing to submit to the unlawful embraces ofaman. Mason v. Stratton, 17 St. Rep. 302, 1 N. Y. Supp. 511. This case also holds that language imputing acts, from which un- chastity is to be inferred, is actionable. In Courtney v. Mannheim, 39 St. Rep. 125, 14 N. Y. Supp. 929, it was held that the words, “You are an Irish whore,” are slanderous under the statute. The words “ Those people up stairs keep a whorehouse,” gives a cause of action to one showing himself to be one of those people up stairs. Cook v. Reif, 52 N. Y. Super. 252. But the words: “Go over to my office ; my wife and my mother are particular what company they keep; they do not wish to be LIBEL AND SLANDER. 679 Art. 4. Slander. annoyed by people of such character as you,” spoken to a woman, do not necessarily imply want of chastity. McMahon v. Hallock, 1 N. Y. Supp. 312, 15 St. Rep. 828. Calling the plaintiff a “ God-damned Irish bitch ” was held not necessarily to impute want of chastity. Nealon v. Frisbie, 11 Mise. Rep. 12, 31 N. Y. Supp. 856, citing Philips v. Baldwin, 8 Week. Dig. 194; McMahon v. Hallock, 15 St. Rep. 828, 1 N. Y. Supp. 312. The court holds, per McAdam, J., that these words do not, upon their face, convey a slanderous imputation, and that there must be a colloquium connected with the words spoken, and an innuendo showing the injurious sense in which they were uttered. The case seems to be decided substantially upon the insufficiency of the pleading rather than as a determination that the words are not slanderous when accompanied by proper alle- gation. The words: “ What are you? You are working in Mike Bryan’s low hotel; any one that worked there ain’t much, and I can prove it; and I dare you to have me arrested,” — Held, not actionable without an averment of special damage. Brown v. Moore, 90 Hun, 169, 35 N. Y. Supp. 736. A pleading in an action for slander charging the defendant with saying the plaintiff “ was in the habit of entertaining gentle- men callers at all hours of the night” is not sufficient without innuendo or allegation as to the sense in which the words were used. Hemmens v. Nelson, 188 N. Y. 517. In Distin v. Rose, 69 N. Y. 122, it was held that under chapter 219, Laws 1871, the plaintiff is not confined to proof of the charge stated in the complaint, but evidence is competent of words spoken by defendant at any time before the commencement of the action repeating substantially the same charge. In Butterfield v. Bennett, 18 N. Y. Supp. 482, it was held that in an action under this section the defendant cannot have an order for bill of particulars showing the names of persons who Lave shunned the plaintiff in consequence of the publication, but that the defendant is entitled to know the plaintiff’s true address in order to fully investigate her antecedents in case he wishes to set up justification. Statements made by a resident of a school district, having a daughter attending school, to the trustees of the district as to the character of a female teacher, if the defendant had no reason to be- 680 LIBEL AND SLANDER. Art. 5. Libel. lieve the statement to be true, is evidence of malice and will render him liable. Harwood v. Keech, 4 Hun, 389. The statement that a woman “ caused her barkeeper to stay with her all night ” does not necessarily impute unchastity. Taylor v. Wallace, 31 Mise. Rep. 393, 64 N. Y. Supp. 271. A complaint alleging that defendant charged a married woman with having communicated to her husband a loathsome disease through the marital relation is not demurrable as failing to state facts constituting a cause of action, and it will be left to the jury to say, upon the evidence, whether the words impute unchastity. If they find that they do, the facts will bring the case within section 1906, authorizing an action without allegation of speciai damage. Woodruff v. Woodruff, 36 Misc. Rep. 15, 72 N. Y. Supp. 39. ARTICLE V. LIBEL. bee Suspivision 1. Definition, criminal libel distinguished .... 680 2. Words 1mputing crime 62. ...cees se we was 685 3. Words injuring one in office............. 687 4, Words injuring one in profession or business. 690 5. Words holding one up to scorn or ridicule.. 695 SUBDIVISION 1. Definition, Criminal Libel Distinguished. An action for libel is not limited to special grounds or by the necessity of proving special damage. It may be founded on any statement which disparages a man’s private or professional char- acter or which tends to hold him up to hatred, contempt, or ridi- cule. Encyclopaedia Britannica (article Libel), p. 505. Holt, in his Law of Libel, says: ‘“ Everything written of an- other, which holds him up to scorn and ridicule, that might reason- ably be considered as provoking him to a breach of the peace, is a libel.” And again, “All such written abuse as may fairly be intended to impair him in the enjoyment of society, or throw a contempt upon him which might affect his general fortune and comfort, is a positive injury, and therefore the subject of an action on the case.” With regard to that species of defamation which is effected by writing or printing, or by pictures and signs, and which is LIBEL AND SLANDER. 681 Art. 5. Libel. technically denominated Izbel, although in general the rules ap- plicable to it are the same which apply to verbal slander, yet in other respects it is treated with a sterner rigor than the latter; because it must have been effected with coolness and deliberation, and must be more permanent and extensive in its operation than words, which are frequently the offspring of sudden gusts of pas- sion, and soon may be buried in oblivion. Rex v. Beau, 1 Ld. Raym. 414. It follows therefore that actions may be maintained for dafamatory words published in writing or in print, which would not have been actionable if spoken. Thus, to publish of a man in writing, that he had the itch and smelt of brimstone, has been held to be a libel. Per Wilmot, C. J., in Villers v. Mous- ley, 2 Wils. 408. In Cropp v. Tilney, 3 Salk. 225, Holt. Ch. J., thus lays down the law: “ That scandalous matter is not necessary to make a libel; it is enough if the defendant induce a bad opinion to be had of the plaintiff, or make him contemptible or ridiculous.” And Bayley, J., declares in McGregor v. Thwaites, 3 Barn. & Cres. 33, that “an action is maintainable for slander either writ- ten or printed, provided the tendency of it be to bring a man into hatred, contempt, or ridicule.” To the same effect are the decisions in 6 Bing. 409, The Archbishop v. Robeson; and in 4 Taunt. 355, Thorley v. The Earl of Kerry; White v. Nicholls, 3 How. (U. 8.) 286. Defamatory words, falsely spoken of a person, which impute to the party unfitness to perform the duties of an office or em- ployment of profit, or the want of integrity in the discharge of the duties of such an office or employment, are actionable in them- selves without proof of special damages; and so, too, are defama- tory words falsely spoken of a party, which prejudice such party in his or her profession or trade. Words are actionable which directly tend to the prejudice of any one in his office, profession, trade, or business. Newell on Slander and Libel, 168, citing Starkie on Slander, 117; Pollard v. Lyon, 91 U. 8. 225. “Tibel, in its legal sense, may be defined as a false and ma- licious defamation of character, expressed in writing, print, picture, or the like, tending to injure the reputation of another, and whereby that other is exposed to public ridicule, hatred, or contempt.” Moak’s Underhill on Torts, p. 119, citing Broom’s Maxims, 731. In libel, as in slander, defamatory publications are classified 682 LIBEL AND SLANDER. Art. 5. Libel. as publications actionable per se, and publications actionable on averment and proof of special damage. In the first class are em- braced all cases of publications which would be actionable per se, if made orally. These cases therefore require no further at- tention. It also embraces all other cases where the additional gravity imparted to the charge by the publication can fairly be supposed to make it damaging. Any false and malicious writing published of another is libelous per se, when its tendency is to render him contemptible or ridiculous in public estimation, or expose him to public hatred or contempt, or hinder virtuous men from associating with him. “The nature of the charge,” it is said in one case, “ must be such, the court can legally presume the plaintiff has been degraded in the estimation of his acquaint- ances, or of the public, or has suffered some other loss, either in his property, character, or business, or in his domestic or social relations in consequence of the: publication.” Cooley on Torts, 240, citing Cropp v. Tilney, 3 Salk. 226; Anson v. Stewart, 1 T. R. 748; Thomas v. Croswell, 7 Johns. 264; Stone v. Cooper, 2 Den. 299. 5 That which is a slander, if spoken, is a libel, if written or printed. The definition of libel embraces all slanders, if written or printed, but much else. Any written or printed words which (1) expose one to hatred, contempt, ridicule, or obloquy, or (2) which tend to injure one in his profession or trade, or (3) cause one to be shunned or avoided by his neighbors, is a libel per se. Odgers, 21 (63), cited in Rade v. Press Publishing Co., 87 Mise. Rep. 255. In this case the definition of a libel is considered and discussed at considerable length, citing authorities, among others, People v. Croswell, 3 Johns. Cas. 354; Steel v. Southwick, 9 Johns. 215; Riggs v. Denniston, 3 Johns. Cas. 205, together with English au- thorities, and definition from Blackstone’s Commentaries. Defamatory words are deemed actionable per se, only where the necessary or natural and proximate consequence of their utter- ance would be to cause injury, and damages may be presumed. Cooley on Torts (2d ed.), 228. Odgers in his work on Libel and Slander (8d ed.), 59, says: “ Words which are clearly defamatory when written and published may not be actionable when merely spoken. * * * Spoken defamatory words are actionable whenever special damage has in fact resulted from their use. They are also actionable when the imputation cast by them LIBEL AND SLANDER. 683 Art. 5. Libel. on the plaintiff is on the face of it so injurious that the court will presume, without any proof, that his reputation has been thereby impaired.” In Newell on Slander and Libel (2d ed.), 181, it is stated that “ the real practical way by which to determine whether special damage must be alleged and proven in order to make out a cause of action for defamation is whether the language is such as necessarily must or naturally and presumably will occasion pe- ‘euniary damage to the person of whom it is spoken.” Starkie (Folkard’s Starkie on Slander and Libel, § 11) says: “ The ground of an action for words, in the absence of specific damage, is the immediate tendency of the words themselves to produce damage to the person of whom they are spoken; in which case pre- sumption supplies the place of absolute proof.” Le Massena v. Storm, 62 App. Div. 150 (153), 70 N. Y. Supp. 882. In Byrnes v. Mathews, 12 St. Rep. 74 (79), it is said: “ Judges and text-book writers furnish plentiful definitions of what con- stitutes a libel with varying shades of difference; they all agree that a malicious publication tending to expose a person to ridicule, contempt, hatred, degradation of character, is libelous.” Citing Addison on Torts, 309; Bergmann v. Jones, 94 N. Y. 51 (64). The opinions in the principal case discuss very fully the ques- tion as to what words are libelous, and under what circumstances an action will lie therefor. Citing text-writers and authorities in this country and England. In Moore v. Francis, 121 N. Y. 199, it is held that written words are libelous in all cases where, if spoken, they would be actionable, and may be libelous when they would not support an action for slander. The court, per Andrews, J., discusses the question as to what constitutes libel and slander. It is said: “ The word ‘libel,’ as expounded in the cases, is not limited to written or printed words, which defame a man, in the ordinary sense, or which impute blame or moral turpitude, or which criticise or cen- sure him.” In Morey v. Morning Journal Assn., 123 N. Y. 207, per Earl, J., it is held that there can be no doubt that a publication is libelous per se, the tendency of which is to disgrace plaintiff and bring him into ridicule and contempt. Citing elementary works and English and American authorities; among them Shelby v. Sun Printing Assn., 38 Hun, 474, the opinion in which quotes, with approval, the definition of libel given by Starkie, as follows: “In short an action lies for any false, malicious, and 684 LIBEL AND SLANDER. Art. 5. Libel. personal implication tending to alter a party’s station in society for the worse, by imputing to him either bad actions or vicious principles, or which diminish his respectability and abridge his comforts by exposing him to disgrace and ridicule; and this with- out proof of special damages.” The publication of a libel is a wrongful act, presumably in- jurious to those persons to whom it relates, and in the absence of legal excuse gives a right of recovery irrespective of the intent of the defendant who published it, and this, although he had reason to believe the statement to be true, and was actuated by an honest or even commendable motive in making the publication. Holmes v. Jones, 147 N. Y. 59. , Words which tend to diminish the respectability of the person to whom they relate, and to expose him to disgrace and obloquy, although they do not impute the commission of a crime, and would not be actionable per se if merely spoken, are, when printed and published, libelous and actionable, although no special damages are alleged or proved. Winchell v. Argus Co., 69 Hun, 354, 23 N. Y. Supp. 650, cited D’Andrea v. New York Press Co., 61 App. Div. 605 (607), 70 N. Y. Supp. 759, with More v. Bennett, 48 N. Y. 472, and Shelby v. Sun Printing Assn., 38 Hun, 474. The test as to whether an article published is libelous is ‘whether, to the mind of an intelligent man, the tenor of the article and the language used naturally import a criminal or disgraceful charge.” More v. Bennett, 48 N. Y. 472, cited in 61 App. Div. 607. An article is libelous which is calculated to disgrace one and hold him up to ridicule and contempt without proof of special damages. Gates v. N. Y. Recorder Co., 155 N. Y. 228 (282). See further as to distinction between libel and slander, art. I, this chapter. Section 242 of the Penal Code defines a libel as follows: “A malicious publication, by writing, printing, picture, effigy, sign, or otherwise than by mere speech, which exposes any living per- son, or the memory of any person deceased, to hatred, contempt, ridicule, or obloquy, or which causes or tends to cause any person to be shunned or avoided, or which has a tendency to injure any person, corporation or association in his or their business or oc- cupation, is a libel.” It will be noted that this definition relates to a criminal libel, and is perhaps not strictly accurate as a definition of libel in a LIBEL AND SLANDER. 685 Art. 5. Libel. civil action. Bishop on Noncontract Law, p. 117, in a note, criticises very sharply the definition of a libel given in Steele v. Southwick, 9 Johns. 214, and repeated in 1 Den. 359, so far as it defines a libel as affecting the reputation of the dead upon the ground that this relates entirely to criminal prosecution. He says, referring to the adoption of this definition in civil cases, that the “learned court, without any thought of the distinction between an indictment and an action of tort, proceeds to apply this criminal definition to the civil case in hand. Possibly if the civil suit had happened to be, as it was not, one by a dead man for a reproach cast upon his memory, the judges would have looked upon the definition as a little mixed, and inquired whether there was not here, after all, a distinction.” Bishop cites in the same note, as a correct definition of libel, one adopted in Massachusetts from a note to Craft v. Botte, 1 Saund. (Wms. Ed.) 246), 248: “ To write or publish anything of another, which either makes him ridiculous, or holds him out as a dishonest man, is held to be actionable, when the speaking of the same words would not be.” In Clark v. Anderson, 11 N. Y. Supp. 729, however, the defini- tion of a libel from the Penal Code, § 242, is cited. The court says of the question then at bar: ‘“ Measured by this standard it does not seem possible to escape the conclusion that the question should have been at least submitted to the jury, whether the effect of the language was such as to bring it within the purview of the statute.” In McFadden v. Morning Journal Assn., 28 App. Div. 508 (515), 51 N. Y. Supp. 275, the definition of libel from the Penal Code seems to be adopted as appropriate in a civil action. It would seem from the language of the court, in Schoepflin v. Coffee, 162 N. Y. 12 (20), that it is more than doubtful whether the provisions of section 254a of the Penal Code, making it a misdemeanor to deliver a libelous article to an editor, states ground for civil action. SUBDIVISION 2. Words Imputing Crime. A charge that a person was guilty of perjury in answering questions concerning his character as a juror is libelous. Rosen- berg v. Nesbit, 14 St. Rep. 248. Statement that persons employed in a certain department 686 LIBEL AND SLANDER. Art. 5. Libel. “have been dismissed for alleged theft of leather belonging to the department,” is libelous as amounting to a charge of theft. Dwyer v. Fireman’s Journal Co., 11 Daly, 248. ‘Lhe publication of a charge that a notary certified the acknowl- edgment of ten persons as having been taken by him to a bond, and that the persons purporting to sign it did not know that their names were in the bonds, constituted a libel. Henderson v. Com- mercial Advertiser Co., 46 Hun, 504. A charge that plaintiff had been paid a sum in cash for pro- curing the appointment of an official and that large sums had been paid him for other lucrative offices is libelous per se. Weed v. Foster, 11 Barb. 203. . The words, “ Our army swore terribly in Flanders, said Uncle Toby; and if Toby was here now, he might say the same of some modern swearers.” “The man (meaning plaintiff) is no slouch at swearing to an old story,” held libelous, either as holding plaintiff up to contempt and ridicule, or as being so-false or crim- inal as to be regardless of the obligations of a witness and un- worthy of belief. Steele v. Southwick, 9 Johns. 214. A newspaper article which does not refer to any judicial pro- ceeding but recites the cireumstances of an unprovoked assault, re- sulting in death, alleged to have been committed by plaintiff, and the effect thereof upon the family of the deceased, is libelous upon its face. Jesper v. Press Publishing Co., 76 Hun, 64, 27 N. Y. Supp. 619, 59 St. Rep. 607, affirmed 149 N. Y. 612. An article stating that plaintiff “has left the city with $8,500 of the Southern Bank’s money ;” that he “left Savannah on Sun- day night, and it is supposed went to New York,” is libelous per ge, and innuendo explaining its meaning and application is not necessary. If one were necessary, the innuendo, that by reason of the publication plaintiff has been “ held up to the public, his busi- ness acquaintances and friends as a thief and a dishonest and untrustworthy man,” is sufficient. Turton v. N. Y. Recorder Co., 144 N. Y. 144. Where a complaint alleged that defendant maliciously spoke of and concerning the plaintiff, etc., the words: ‘Charles Keller set fire to my barn, I will never let Keller get the insurance on his lot of tobacco, God damn him; he set my building afire, and I have a witness right here in the room who will swear to it, that he set it afire,” states a cause of action, although it contains no LIBEL AND SLANDER. 687 Art. 5. Libel. innuendo or averment that the defendant thereby intended to charge the plaintiff with the commission of the crime, or that the words were so understood. Keller v. Dean, 57 App. Div. 7, 67 N. Y. Supp. 842, citing numerous authorities. Charging a corporation engaged in collecting news and fur- nishing it to newspapers, with obtaining such news by tapping the telegraph wires used by a rival corporation, is libelous per se. Union Associated Press v. Heath, 49 App. Div. 247, 63 N. Y. Supp. 96. An article charging a justice of the peace with committing an assault upon a prisoner arraigned before him, after the prisoner had started to leave the courtroom and had treated the justice with derision, is libelous per se. O’Leary v. N. Y. News Pub. Co., 51 ‘App. Div. 2, 64 N. Y. Supp. 327. A statement that a health board of inspectors found tainted poultry in a butcher shop is not libelous per se, as charging the butcher with a misdemeanor in keeping tainted or spoiled food for sale. Hartmann v. Sun Printing & Pub. Assn., 74 App. Div. 982, 77 N. Y. Supp. 538. See further cases under Slander, art. IV, subd. 2. All slander would be a libel if printed. SUBDIVISION 3. Words Injuring One in Office. An early and leading case upon the law of libel upon a public officer is King v. Root, 4 Wend. 114, where the libelous article charged that Lieutenant-Governor Root was intoxicated while pre- siding in the senate. It was held that a publication by a news- paper, affecting the character of a candidate for public office, was not privileged so as to relieve the publishers from the necessity of proving the truth of the charges made. That it did not cast the burden of proof upon the party slandered of showing actual malice or a knowledge of the falsity of the charge. That news- papers are responsible for the truth of their publications, and that belief in the truth of charges contained in the publication does not destroy the presumption of malice. ‘The following words have been held libelous when spoken with regard to public officers, namely, of a commissioner of bankruptcy, that he is “ a misanthropist and violent person, one stripping un- 688 LIBEL AND SLANDER. Art. 5. Libel. fortunate debtors of every cent and then depriving them of the benefit of the act.” Riggs v. Denniston, 3 Johns. Cas. 198. Publishing of plaintiff, that “he was prominent in the corrupt legislation of last winter.” Inttlejohn,v. Greeley, 18 Abb. Pr. 41. To charge public officer with “ blackmailing” and assert that he has been dismissed for that cause. Hdsall v. Briggs, 17 Abb. 221, approved Robertson v. Bennett, 44 N. Y. Super. 66. Of a member of congress, that “he is a fawning sycophant, a misrepresentative in congress, and a grovelling office seeker; that he has abandoned his post in congress in pursuit of an office.” Thomas v. Crosswell, 7 Johns. 264. An action may be maintained upon a libel charging a party with corrupt conduct in public office, notwithstanding plaintifi’s term of office had expired before the publication of the libel. Cramer v. Riggs, 17 Wend. 209, distinguishing Forward v. Adams, 7 Wend. 204, where it was held that slander would not lie for words spoken of a person in discharge of official duties, if the office had ceased at the time of the speaking of the words. To charge that plaintiff had entered into a corrupt agreement to the injury of the public interests, and in effect that if elected to the senate he would use his influence to defeat a public im- provement for his own aggrandizement or to gratify individual malice. Powers v. Dubois, 17 Wend. 63. Embezzlement from a national bank being exclusively cognizable in the United States court does not render the person guilty of it liable to arrest by village chief of police, as for a felony, and such officer cannot sustain an action for libel against a news- paper, stating that he allowed said person to depart from the village on the ground that he was charged with having connived at an escape. Westbrook v. N. Y. Sun Assn., 58 App. Div. 562, 69 N. Y. Supp. 266. A publication that a coroner had held an inquest on a live man, supposing him to be dead, and that the man would have been pronounced dead and buried alive, if a physician had not arrived, is libelous per se, where the coroner was a physician. Purdy v. Rochester Printing Co., 26 Hun, 206. Reversed on the ground that the article was not susceptible of any construction which would make the words actionable, as they only referred to plaintiff in his official capacity, and simply ex- LIBEL AND SLANDER. 689 Art. 5. Libel. hibited a prompt and efficient performance of his duty in that capacity. 96 N. Y. 372, citing Oakley v. Farrington, 1 Johns. Cas. 130; Van Tassel v. Capron, 1 Den. 250, holding that the plaintiff was not spoken of as a physician and not described as acting as such on the occasion in question. An article charging plaintiff with administering his office for unlawful purposes, of being a corrupt character, and ready and willing to continue and repeat a similar maladministration, is libelous. MeIntyre v. Journal Assn., 5 App. Div. 609, 40 N. Y. Supp. 1005. A publication charging a justice of the peace with having as- saulted a prisoner arraigned before him, because the prisoner treated him with derision, and started to leave the courtroom, touches the justice in both his individual and official character, and is libelous per se. O’Leary v. N. Y. News Pub. Co., 51 App. Div. 2, 64 N. Y. Supp. 327. A newspaper making charge of maladministration of a public office is libelous per se, and the complaint alleging such publica- tion is not defective because without an innuendo. Collis v. Press Publishing Co., 68 App. Div. 38, 74 N. Y. Supp. 78. An attorney who makes a charge of corruption against a judicial officer in his own court, while sitting in a case which he is investi- gating, is guilty of unprofessional and improper conduct, and where he gives no sign of regret, nor retracts, apologizes, or states any- thing in extenuation or mitigation of his conduct, when given an opportunity to do so, his disbarment is proper. Matter of Mur- ray, 88 St. Rep. 831, 11 N. Y. Supp. 336, citing Bradley v. Fisher, 13 Wall. 355. Compare cases under Slander, art: IV,.subd. 3. Slanderous words would be libelous if printed. Compare also cases under following subd. 4, Words Injuring One in Profession or Business. SUBDIVISION 4. Words Injuring One in Profession or Business. Whatever words have a tendency to bring ridicule or contempt upon a person, or are calculated to prejudice a man in his trade or business, are actionable when proved to have been spoken in relation thereto; and unless defendant shows a lawful excuse, 44 690 LIBEL AND SLANDER. Art. 5. Libel. plaintiff is entitled to recover without allegation or proof of special damages. Keene v. Tribune Assn., 76 Hun, +88, 27 N. Y. Supp. 1045. In slander, where the words used have such a relation to the profession or occupation of the plaintiff that they tend directly to injure him in respect to it, or to impair confidence in his char- acter or ability, when, from the nature of his business, great con- fidence must necessarily be reposed, they are actionable although not applied by the speaker to the profession or occupation of the plaintiff. When, however, they convey only a general imputation upon his character, equally injurious to any one of whom they might be spoken, they are not actionable, unless such application is made. But, in an action for libel, the fact that the words used had reference to the profession or business of the plaintiff is not the substantive ground of the action; the actionable quality of the words used does not, in any case, depend upon that considera- tion. Sanderson v. Caldwell, 45 N. Y. 398. An article charging plaintiff with want cf professional ability and integrity is libelous upon its face. Where the reflection was not simply on the character of the plaintiff as a man, but on his character as a physician, imputing a want of those qualifications which attract patronage and are essential to his calling, it tends to undermine him in the confidence of the community; such an article is actionable without proof of any damage, for the law im- putes malice to the defendant and assumes that damage was sus- tained by the plaintiff from the pure act of publication. Avrug v. Pitass, 162 N. Y. 154. A publication which tends to affect the credit and standing of a man and imputes disreputable conduct and moral delinquency is libelous without allegation of special damages. Stokes v. Stokes, 76 Hun, 314, 28 N. Y. Supp. 165, 59 St. Rep. 187. A notice stating that plaintiff was reported as soliciting adver- tisements for a newspaper and had no authority to do so, and that “any such statement on his part is fraudulent, deceptive, and for dishonest and malicious purposes.”— Held libelous. Daniel v. N.Y. New Publishing Co., 51 St. Rep. 18, 21 N. Y. Supp. 862. A charge in an article to the effect that the plaintiff was a brute in his business is actionable under O'Shaughnessy v. Morning Journal Assn., 71 Hun, 47, 24 N. Y. Supp. 609. An allegation that plaintiff’s services had been dispensed with LIBEL AND SLANDER. 691 Art. 5. Libel. by reason of his careless manner of attending to business, etc., states words tending to injure the plaintiff in his business and is libelous. Ratzel v. N. Y. News Publishing Co., 35 Misc. Rep. 487, 71 N. Y. Supp. 1074. A letter having charged plaintiff with having subscribed defend- ant’s name to a receipt for money without authority and for the purpose of defrauding him out of the money, saying “It is not my purpose to call hard names; the statute fixes the name and punishment,” is libel. Snyder v. Andrews, 6 Barb. 43. The statement in regard to nonpayment of an undertaker’s bill, that “no consultation was had with Gen. Grant’s family to determine as to the justice of the payment, although such con- sultation could easily have been had, and the injustice of the claim have been made manifest,” is libelous. Holmes v. Jones, 121 N. Y. 461, 31 St. Rep. 379, reversing 50 Hun, 345, 20 St. Rep. 175, 3 N. Y. Supp. 156. An article referring to plaintiff as a physician calling him a blockhead or fool, and appealing to a certain class in the city among whom he practiced largely, not to entrust themselves or their families to his professional care, is libelous per se. Krug v. Pitass, 162 N. Y. 154, 56 N. E. 526. A publication implying that plaintiff, who was engaged in the business of adviser in insurance affairs, was not regarded as a “properly commissioned and reputable deputy,”— Held libelous. Hollingsworth v. Spectator Co., 49 App. Div. 16, 63 N. Y. Supp. 2. Labouisse v. Evening Post Publishing Co., 10 App. Div. 30, 41 N. Y. Supp. 688, is distinguished on the ground that the pub- lication on its face was calculated to aid and not to injure the plaintiff in his business. And Ertheiler v. Bernheim, 37 App. Div. 472, 56 N. Y. Supp. 26, is distinguished on the ground that the words used were innocent and harmless when construed in accordance with their natural meaning. Moore v. Francis, 121 N. Y. 199, holds that words written or spoken of one in relation to his business or occupation which will have a tendency to hurt, or are calculated to prejudice him therein, are actionable per se, although they charge no fraud or dishonesty, and were uttered or written without actual malice. Sanderson v. Caldwell, 35 N. Y. 398 (405), to same effect. A publication charging a corporation named in collecting news and furnishing it to newspapers, with obtaining such news by 692 LIBEL AND SLANDER. Art. 5. Libel. tapping a telegraph wire used by a rival corporation, is libelous per se. Union Associated Press v. Heath, 49 App. Div. 247, 63 N. Y. Supp. 96. Statement that a man failed for a large amount and has lots of money, meaning that he has defrauded his creditors, is libelous per se. Charwat v. Vopelak, 19 Misc. Rep. 500, 44 N. Y. Supp. 26, affirming 18 Mise. Rep. 601, 42 N. Y. Supp. 235. So also is the publication of a circular, charging a person with dishonesty in his business. Davey v. Davey, 22 Misc. Rep. 668, 50 N. Y. Supp. 161. Nothing can be said to be libelous of a man in his profession unless it degrades or lowers him in his professional character generally, and it is not a libel to say of one in regard to any par- ticular work that he has fallen below the proper standard, or made a failure. Battersby v. Collier, 34 App. Div. 347, 54 N. Y. Supp. 363. A publication that plaintiff, a practicing dentist, had committed suicide is libelous per se, as injuring his profession. Cady v. Brooklyn Union Pub. Co., 23 Misc. Rep. 409, 51 N. Y. Supp. 198. Charging a brewer with filthy practices in preparing his malt is libelous. Fidler v. Delavan, 20 Wend. 57; Ryckman v. Dele- van, 25 Wend. 186. A charge that plaintiff used his newspaper to threaten, dog, spite, and persecute dealers in bonds, who refused to subseribe for or advertise in his newspaper, and to ery down the bonds they purchased, used the language: “ His practices being utterly in- defensible, infringing upon, if not actually crossing the line of downright criminality,” is held to be libelous per se. Shanks v. Stumpf, 23 Mise. Rep. 264, 51 N. Y. Supp. 154. A circular charging, among other things, plaintiff with having secured a large amount of defendant’s assets, ete., held to be libel- ous. Carpenter v. Hammond, 1 St. Rep. 551. Publication that plaintiff, an attorney, was recommended for removal from his position as counsel for the Federal treasury de- partment, on the ground of inefficiency, as the result of an in- vestigation by special agents of the department, published after his removal from office, is libelous per se, as charging him with unfitness and incompetency in his profession when so made by LIBEL AND SLANDER. 693 Art. 5. Libel. innuendo. Gibson v. Sun Printing & Pub. Assn., 71 App. Div. 566, 76 N. Y. Supp. 197. A circular issued by a commercial agency containing the name of the plaintiff, his address, and business, followed by stars, with a reference at its foot: ‘ For explanation please call at our office,” is held not capable of a construction which is libelous. Kingsbury v. Bradstreet Co., 35 Hun, 212, affirmed 116 N. Y. 211. Statement made by a mercantile agency, to the effect that a’ judgment had been rendered against plaintiff, who had been en- gaged in business, which was untrue, was held not to give cause of action. It seems that upon averment and proof of special dam- age resulting from false publication an action would be sustain- able. Woodruff v. Bradstreet Co., 116 N. Y. 217. The Supreme Court (35 Hun, 212), per Childs, J., says: “ The law applicable to this class of cases is well settled by the authorities as follows: C “First. The proprietors of a commercial agency engaged in col- lecting and publishing, for circulation among all its patrons, in- formation as to the standing and financial credit of merchants and traders, are liable for a false report thus disseminated, injurious to the credit of the subject of it, although made in good faith and upon information deemed reliable. (Sunderlin v. Bradstreet, 46 N. Y. 188.) “Second. In an alleged libel, if the application or meaning of the words is ambiguous, or the sense in which they were use is uncertain, and they are capable of a construction which would make them actionable, although at the same time an innocent sense can be attributed to them, it is for the jury to determine upon all the circumstances, whether they were applied to the plain- tiff, and in what sense they were used. (Sanderson v. Caldwell, 45 N.Y. 398.) “ Third. In all civil suits, the question of libel or no libel, where it arises solely on the face of the publication, is a question of law, upon which the jury must follow the direction of the court. (Mat- thews v. Beach, 5 Sandf. 256; Green v. Telfair, 20 Barb. 11.)” A publication in a medical journal, stating that there was a false joint in the jaw of a patient treated by dentist,— Held not libelous, in an action by the dentist, who alleged that he had treated patients successfully and had so reported. Gunning v. Appleton, 58 How. 471. 694 LIBEL AND SLANDER. Art. 5. Libel. To call a physician, homeopath or allopath, a quack, is an act charging him with a want of the necessary knowledge or training to practice a system of medicine which he undertakes to practice, and which he holds himself out, as having, by undertaking to practice. To call either a quack is actionable. White v. Carroll, 42 N. Y. 161. This language set out in the complaint with reference to medi- cal graduates, in which plaintiff was described “ as a jackass, dis- guised as a doctor, a brute, graduated to care for the sick, a ghoul, graduated to mutilate the dead, a degenerate graduate de- serving arrest and punishment, a savage unworthy to retain his diploma,”— Held to assail plaintiff in his professional capacity, and the article libelous. Bornmann v. Star Co., 174 N. Y. 212. Words concerning one in charge of a department of a news- paper, published in a letter circulated by it, that plaintiff and others in’ the employ of defendant “have been dispensed with, the reason of the change being a general careless manner of attend- ing to our business,” are actionable per se. Ratzel v. N. Y. Pub. Co., 35 Mise. Rep. 487, 71 N. Y. Supp. 1074. In Lurman v. Jarvie, 82 App. Div. 37, plaintiff brought an action to recover damages for injury to his business reputation, which was likened to one for slander or libel. Plaintiff alleged that a committee of board of managers, of which he was a mem- ber, had improperly suspended him from the privileges of that body,— Held plaintiff could not recover. A letter charging a merchant with cutting prices on a certain article, but which does not charge that plaintiff was bound by any agreement not to cut prices, or that he was connected with any contract to maintain them, is not liberous per se. Willis v. Eclipse Mfg. Co., 81 App. Div. 591, 81 N. Y. Supp. 359. Words imputing insanity are actionable per se, when written or spoken of one occupying a position of trust and confidence in relation to his oceupation. Moore v. Francis, 121 N. Y. 199. The rule as laid down in this case seems to be that spoken words imputing insanity are actionable per se, when spoken of one in his trade or occupation, but not otherwise, but that written words imputing insanity are libelous per se, as well as when they affect one in his trade or occupation, although the decision in that case was placed upon the ground that the allegation touched the plaintiff in his business. The following words held question for the jury to determine, LIBEL AND SLANDER. 695 Art. 5. Libel. whether uttered and understood in their libelous rather than their harmless signification : “ Under date of February 3rd, you sent us a letter recommend- ing A. F. Payne as being worthy of confidence and entitled to 2 position of manager of one of our stores. We gave him a po- sition, and as a result lost $2,000 by him. Investigation of his actions during the time he was in charge of our business showed that he spent the greater part of his time playing pool, and that he had questionable connections in the suburbs of Pittston, where our store was. “ We mention these facts that you may know the true character of the man, and will be glad to have you tell us where he can be found at present, if you know, or whether his people are in your vicinity, and if you think there would be any chance of recovering any part of the amount lost by him.” Payne v. Rouss, 46 App. Div. 315, 61 N. Y. Supp. 705. To impute that one has acted in business matters under a con- tract or obligation entered into by an assumed name is not libelous. Bell v. Sun Pub. & Printing Assn., 3 Avb. N. ©. 157. Notice in a newspaper advising applicants for board at a speci- fied street and number to “inform themselves before locating there, as to table, attention, and characteristics of the proprietors,” is not libelous on its face. Wallace v. Bennett, 1 Abb. N. C. 478. A communication by a banker, in the country, to 2 mercantile house in New York, regarding the responsibility of a customer whose note had been sent him for collection, is privileged ; in order to maintain an action for libel, express malice must be shown and cannot be inferred from the mere falsity of the statement. Lewis v. Chapman, 16 N. Y. 369. Compare also cases under “ Slander,” art. IV, subd. 3. SUBDIVISION 5. Words Holding One up to Scorn or Ridicule. In Brooks v. Bemiss, 8 Johns. 356, it was held charging that plaintiff was a liar was libelous. It is clearly libelous to publish of another that “ He is insane and a fit person to be sent to the lunatic asylum,” or “that he is so disordered in his senses as to endanger the persons of other people if left unrestrained, and that it is dangerous to permit him longer to go at large.” The libelous character of such language 696 LIBEL AND SLANDER. Art. 5. Libel. is not destroyed or diminished by the fact that the person utter- ing it is a physician and makes the statement as a professional opinion. It will only be privileged when made in the discharge of duty. Perkins v. Mitchell, 31 Barb. 461, holding that this puts plaintiff in an odious light and exposes him to public con- tempt, citing Black. Definition of Libel, 3 Comm. 125, 4 Comm. 150, 5 Rep. 125; Lord Holt, 3 Salk. 226; 1 Starkie, 153. The principal case cited in Lowrie v. Press Publishing Co., 48 App. Div. 319, together with Morey v. M. J. Assn., 123 N. Y. 207; Shelby v. Sun Printing Assn., 38 Hun, 474, affirmed 109 N. Y. 611; Winchell v. Argus Co., 69 Hun, 354, 23 N. Y. Supp. 650, as to what words are libelous. See Moore v. Francis, 121 N. Y. 199. Where an artist painted the ears of an ass upon the head of a person whose portrait he had painted, and who had refused pay- ment therefor, and also caused notice of the sale and alteration in the picture to be published in a newspaper, it was held that the alteration was a libel if done through resentment. Mezzaras Case, 2 City Hall Recorder, Gen. Sess. 1817, Abb. Dig. Libel, vol. 4, p. 282. ‘Where the defendant, who was the editor of a newspaper, owed the plaintiff on an award of arbitrators, in speaking of which and of the plaintiff in an article in his paper, defendant said “ the money will be forthcoming on the last day allowed by the award, but we are not disposed to allow him to put it into Wall street: for shaving purposes before that time,”— Held not to be libelous. Stone v. Cooper, 2 Den. 2938. A charge that plaintiff was known in a certain county and would not like to bring an action there for libel imputes to him a bad reputation, and is libelous. Cooper v. Greeley, 1 Den. 347. An article purporting to give the “ true history of a great min- ing enterprise,” stating that plaintiff was employed to prepare “the mine in question in such a way as to give the appearance of value and comparing his services to those of a speculator in disposing of the stock,” — Held to be libelous. Wulliams v. God- kin, 5 Daly, 499. Although mere poverty is no crime and ought not to expose any person to ridicule, yet one may be so circumstanced, and the fact of his alleged misery may be so put as to excite ridicule and nothing else. In an action for libel for statement of this char- LIBEL AND SLANDER. 697 Ack s,s, acter, the inquiry is as to the natural effect of the publication, not only upon the general public, but upon the neighbors and friends of the person named. Moffatt v. Cauldwell, 3 Hun, 26, 5 T. & C. 256, cited together with Patch v. Tribune Assn., 38 Hun, 368, and distinguished in Battersby v. Collier, 24 App. Div. 89, 48 N. Y. Supp. 976, the same case, 34 App. Div. 347, 54 N. Y. Supp. 363, passing upon other points. A published statement that a married man is threatened with a breach of promise suit is libelous per se. Morey v. Morning Journal Assn., 123 N. Y. 207, 33 St. Rep. 49, affirming 17 St. Rep. 276, 1 N. Y. Supp. 475. A newspaper was held for libel for the publication of an un- authorized advertisement as follows: “ Le Huray Sisters, Blanche, Stella, and Allien, just from Paris; massage, French style; love secrets; how to get a husband; enclose stamp; valuable informa- tion for ladies by aid of cards. Le Huray Sisters, 444 2d ave., Mount Vernon, N. Y.” Stafford v. Morning Journal Assn., 68 Hun, 467, 22 N. Y. Supp. 1008, affirmed 142 N. Y. 598. A statement charging a person with being at the head of a movement to raise a corruption fund in England for the purpose “of buying votes and other dishonorable expedients to bring about the election of Mr. Cleveland” as president, and further alleging that the money was not to be used for the legitimate ex- penses, but in “ the debauchment of the ballot,” is libelous per se. Van Ingen v. Star Co., 1 App. Div. 429, 37 N. Y. Supp. 114, affirmed on opinion below, 157 N. Y. 695. An article stating that the failure of plaintiff’s farm was caused by his reckless speculation is held libelous. Sawyer v. Bennett, 49 St. Rep. 774, 20 N. Y. Supp. 935. A publication stating that a property owner 1n the city of New Rochelle went to Albany to urge the passage of a bill for the con- struction of a sewer in front of his premises, and that, in doing so, he was actuated by a desire to relieve himself of a local assess- ment for the construction of the sewer and to impose the cost. of such construction upon the taxpayers of the city generally, is not libelous per se, as it does not charge the property owner with doing anything that a citizen may not lawfully do. Foot v. Pitt, 83 App. Div. 76. Writings which impute to the plaintiff immoral and disgrace- ful complicity in connection with a swindle and reproach him 698 LIBEL AND SLANDER. Art. 5. Libel. with culpable, if not criminal, misbehavior in the management of the business, are libelous. Hartman v. Morning Journal Assn., 46 St. Rep. 181, 19 N. Y. Supp. 401. A statement with regard to a minister “ it is claimed he was too much of a family man; he is still under cover,” is libelous per se. Johnson v. Synett, 89 Hun, 192, 35 N. Y. Supp. 79, affirmed on opinion below, 157 N. Y. 684. O'Shaughnessy v. Morning Journal Assn., 71 Hun, 47, 24 N. Y. Supp. 609; Gallup v. Belmont, 41 St. Rep. 233, 16 N. Y. Supp. 483, affirmed 135 N. Y. 647, illustrate respectively what allegations and statements do and do not render publisher thereof liable in an action for libel. A statement that a married woman has eloped is libelous per se. Its falsity imputes malice without proof. Smith v. Matthews, 6 Mise. Rep. 162, 27 N. Y. Supp. 120. So of an article charging that a married woman had registered with a man under an assumed name as husband and wife. Gray v. Baker, 47 St. Rep. 375, 19 N. Y. Supp. 940. Statements that a woman lived with a man not her husband, as his wife, are libelous. Mooney v. Benneti, 44 App. Div. 423, 60 N. Y. Supp. 1103; Mooney v. N. Y. News Pub. Co., 48 App. Div. 271, 62 N. Y. Supp. 781. An article stating that plaintiff was walking with C.’s wife when the deserted husband came up, and a fight followed in which Mrs. C. drew a revolver and shot her husband, for which she was convicted of murder, and that plaintiff was tried for complicity in the crime but was not convicted, is libelous per se, since it tended to degrade plaintiff and hold him up to public obloquy. TD’ Andrea v. New York Press Co., 61 App. Div. 605, 70 N. Y. Supp. 759. The account which stated that the defendant in the action for divorce and a sister had been adopted by a leading physician of Louisville, and that “it is said that both the daughters are il- legitimate children of the adopted father’s intimate friend, and were raised in a spirit of philanthropy,” is libelous. Shelby v. Sun Printing Assn., 38 Hun, 474. A statement concerning a woman that she is said to be a con- cert hall singer and dancer at Coney Island is libelous per se, when published in a community where the character of Coney Island is well known. Gates v. New York Recorder Co., 155. N. Y. 228. LIBEL AND SLANDER. 699 Art. 5. Libel. A statement that plaintiff is soliciting advertisements for a newspaper and had no authority to do so, and that “any such statement on his part is fraudulent, deceptive, and for dishonest and malicious purposes,”— Held, as to the last sentence, libelous. Daniel v. New York Press Publishing Co., 51 St. Rep. 18, 21 N. Y. Supp. 862. It is libelous to publish of the plaintiff that “he went to Utah where he joined the Mormons, and at one time had a good deal of influence in church matters at Salt Lake.” Witcher v. Jones, 17 N. Y. Supp. 491. Charging a man with being “ perfectly unreliable,” that “he cannot tell the truth,” that “any financial obligation does not seem to distress him in the least,” and that “he has been more than mean to me,” is libelous per se. Rider v. Rulison, 74 Hun, 239, 26 N. Y. Supp. 234. Allegations that the plaintiff “made his name notorious and hated” and that his “language and actions became more and more reprehensible” cannot be said to in no manner reflect on the plaintiff’s moral character. Remsen v. Bryant, 36 App. Div. 240, 56 N. Y. Supp. 728. In Gallagher v. Bryant, 44 App. Div. 527, 60 N. Y. Supp. 844; Payne v. Rouss, 46 App. Div. 315, 61 N. Y. Supp. 705, it was held that the language used in the printed statement was such as to require the jury to determine whether or not it was libelous. Words which tend to diminish the respectability of a person and expose him to disgrace, ridicule, and obloquy as “a lazy brute, he lives in idleness and lets his family starve,” are libel- ous. Winchell v. Argus Co., 69 Hun, 364. An article stating, “There may be an explanation. The only decent one we can ourselves imagine (and that is hardly, how- ever, decent) is that the respected board of health wanted some- thing done in the line of spying and sneaking, meaner and dirtier than they had the face to ask the police department to do, and so they went to B. (the plaintiff),” is libelous. Byrnes v. Mat- hews, 12 St. Rep. 74, citing numerous cases and discussing fully numerous phases of the law of libel, affirmed without opinion 109 N. Y. 662. A publication concerning a member of a particular union which calls him a “scab” is libelous per se. Prince v. Socialistic Co- operative Publishing Co., 31 Misc. Rep. 234, 64 N. Y. Supp. 285. 700 LIBEL AND SLANDER. Art. 5. Libel. An allegation that defendant furnished a customer with do- mestic article instead of imported one ordered by plaintiff is demurrable since the language was not slanderous per se. Ver- beck v. Duryea, 36 Misc. Rep. 241, 78 N. Y. Supp. 346. Where the tendency of an article is to disgrace plaintiff and bring her into contempt and ridicule, it is libelous per se. How- ell v. Press Publishing Co., 48 App. Div. 318 (321), 62 N. Y. Supp. 908. It is not libelous per se to publish concerning a baker that he had declared a fight against a baker’s union and refused to employ its members because they would not work for him for fifty cents a day, the publication not touching him in his general character or his business. Smid v. Bernard, 31 Misc. Rep. 35, 63 N. Y. Supp. 278. But a publication concerning plaintiff “this tenement house boss Prince and member of Union 251 had the audacity to slander old and reliable members whom necessity compels to live in tene- ment houses of their bosses, while he himself runs a tenement house factory and as a miserable scab works six days in a shop and thereby robs other poor devils out of their bread,” is libelous per se. Prince v. Socialistic Co-operative Pub. Assn., 31 Mise. Rep. 234, 64 N. Y. Supp. 285, reversing 29 Misc. Rep. 773, 61 N. Y. Supp. 1145. W. C. Loftus & Co. v. Bennett, 68 App. Div. 128, 74 N. Y. Supp. 290, considers what words are libelous as against a cor- poration in connection with its business. A newspaper article merely accusing a wife of having been the cause of her husband’s suicide is not libelous. Brown v. Tribune Assn., 74 App. Div. 3859, 77 N. Y. Supp. 461. A statement that one not a citizen or subject of a foreign State, but a resident therein, was engaged in rebellion against such power, is not libelous per se. Crashley v. Press Publishing Co., 74 App. Div. 118, 77 N. Y. Supp. 711. It is not libelous per se to say of a person that he has con- sumption, or that he once had it. Rade v. Press Publishing Co., 37 Misc. Rep. 254, 75 N. Y. Supp. 298. The words, “ She went to prison for an operation. She sank so low. She said it cost $5,” occurring in a newspaper account of proceedings on a motion made by plaintiff to secure support from her husband are not susceptible of the meaning ascribed LIBEL. AND SLANDER. 701 Art. 6. Interpretation, Construction, and Application of Language. to them by plaintiff that she was charged with having committed a crime, with having been punished therefor by imprisonment, and with having sunk low in the community. Wuest v. The Brooklyn Citizen, 38 Misc. Rep. 1, 76 N. Y. Supp. 706. ARTICLE VI. INTERPRETATION, CONSTRUCTION, AND APPLICATION OF LANGUAGE. The rule with respect to ambiguities, or words questionable as to their meaning, is laid down by Starkie, p. 45, as follows: “Both judges and juries shall understand words in that sense which the author intended to convey to the minds of the hearers, as evidenced by the whole circumstances of the case. That it is the province of the jury, where such doubts arise, to decide whether the words were used maliciously and with a view to de- fame, such being matter of fact to be collected from all concomi- tant circumstances; and for the court to determine whether such words, taken in the malicious sense imputed to them, can alone, or by the aid of the circumstances stated upon the record, form the legal basis of an action.” Formerly courts construed language in mitiori sensu. This practice has been abandoned. Townshend, 179, citing numerous authorities. Words are to be construed according to their common accepta- tion. The doctrine of mitiori sensu has long been exploded. It is not competent to inquire of the witnesses how they understood the words. Pelton v. Ward, ‘3 Cai. 7 6; Demerast v. Haring, 6 Cow. 76; Goodrich v. Woolcott, 3 Cow. 231, 5 Cow. 714; Wright v. Paige, 36 Barb. 488; Van Vechten v. Hopkins, 5 Johns. 211; Weed v. Bibbins, 32 Barb. 315. In Turrill v. Dolloway, 17 Wend. 428, it is said, “ There was a time when courts thought it a duty to understand words charged to be slanderous in the most mild and inoffensive sense, when they adopted unnatural and strained constructions of the language for the purpose of proving that it did not necessarily and with absolute certainty impute a crime. But that day has long since gone by, and the rule of common sense has become the rule on this subject. Judges and jurors now read the words in court as they would read them elsewhere; they no longer resort to those 702 LIBEL AND SLANDER. Art. 6. Interpretation, Construction, and Application of Language. constructions which make that language innocent in the halls of justice which was full of calumny when spoken or published out-of-doors. Swan’s Pl. & Prac. 210-216.” Maxwell on Code Pleading, 207. ‘To determine whether a statement is defamatory it must be construed in its natural and ordinary meaning. If not defama- tory in such meaning, it must be construed in the special mean- ing, if any, in which it was understood by the persons by and to whom it is published. Fraser, 9; Hale, 296; Woodruff v. Bradstreet Co., 116 N. Y. 219. The language of McCloskey v. Cromwell, 11 N. Y. 5938, with reference to the interpretation of statutes and contracts may well be applied to the interpretation of words alleged to be libelous or slanderous. Judge Allen says (p. 601): “It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. Statutes and contracts should be read anc understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation. If the words used are capable of two constructions, it is for the jury to determine in what sense they were intended. Wol- cott v. Goodrich, 5 Cow. 714; Van. Vechten v. Hopkins, 5 Johns. 211; Dexter v. Taber, 5 Johns. 239; Gibson v. Williams, 4 Wend: 320; Cook v. Bostwick, 12 Wend.+48; Ex parte Bailey, 2 Cow. 479. If the application or meaning of the words in an alleged libel is ambiguous or the sense in which they were used is uncertain, and they are capable of a construction which would make them actionable, although, at the same time, an innocent sense can be attributed to them, it is for the jury to determine, upon all the circumstances, whether they were applied to the plaintiff, and in what sense they were used. Sanderson v. Caldwell, 45 N. Y. 398. If language is ambiguous and capable of two constructions, one imputing crime and the other not, the question should be submitted to the jury to determine in what sense it was un- derstood. Clapp v. Devlin, 8 J. & S. 170; Middleton v. Walter, 1 Week. Dig. 407; Brooklyn City Court, 1 Week. Dig. LIBEL AND SLANDER. 703 Art. 6. Interpretation, Construction, and Application of Language. 407, affirmed 67 N. Y. 584; McGibbon v. Young, 20 Week. Dig. 12; Vaus v. Middlebrook, 3 St. Rep. 277; Schoonhoven v. Beech, 23 Week. Dig. 348; Bannon v. Cleary, 6 St. Rep. 36; Mason v. Stratton, 17 St. Rep. 302, 1 N. Y. Supp. 511; Hays v. Ball, 72 N. Y. 418, where it is said that if it had appeared that when the words were spoken they were accompanied with such an explanation as would make it clear that they referred to an innocent transaction, or to a transaction which in law could not have constituted larceny, the motion for nonsuit should have been granted; or if it had appeared that all the persons who were present understood from the facts which they knew or had otherwise learned that the words referred to a transaction which could not in law constitute larceny, the same result would follow. But that without an explanation accompanying the use of the words giving them a different meaning, or unless all the hearers understand they refer to a transaction which would not consti- tute a crime, the language is to be given its ordinary import and meaning. Citing Mayor of New York v. Lord, 17 Wend. 296; Sheppard v. Steel, 43 N. Y. 60, and cases supra. In Warner v. Southall, 165 N. Y. 496, affirming 31 App. Div. 875, 52 N: Y. Supp. 320, Hays v. Ball is followed, and the rule laid down that “if the words are ambiguous and capable of two constructions, one imputing larceny and the other not, it is for the jury to determine in what sense they were understood. Language should be given its ordinary meaning unless accom- panied either by words of explanation or by reference to a known and. particular circumstance. Van Rensselaer v. Dole, 1 Johns. Cas. 279; Bannon v. Cleary, 6 St. Rep. 36; Spencer v. South- wick, 11 Johns. 573. Where the language of an alleged libel is ambiguous and ca- pable of being understood in an innocent and harmless, as well as an injurious sense, its true interpretation is a question for the jury. Lewis v. Chapman, 16 N. Y. 869; Vaus v. Middlebrook, 3 St. Rep. 277; Mason v. Stratton, 17 St. Rep. 302, 1 N. Y. Supp. 511; Dolloway v. Turrill, 26 Wend. 383, reversing 17 Wend. 426; Dexter v. Tabor, 12 Johns. 239; Goodrich v. Wol- cott, 3 Cow. 231; Rundell v. Butles, 7 Barb. 260; Sanderson v. Caldwell, 45 N. Y. 398; Ronnie v. Ryder, 28 St. Rep. 141, 8 N. Y. Supp. 5; Lally v. Emery, 59 Hun, 237, 12 N. Y. Supp. 785; Clapp v. Devlin, 3 J. & S. 170. 704 LIBEL AND SLANDER. Art. 6. Interpretation, Construction, and Application of Language. It is the settled law that where the publication is admitted and the words are unambiguous, and admit of but one sense, the ques- tion of libel or no libel is one of law which the court must decide. Snyder v. Andrews, 6 Barb. 43; Hunt v. Bennett, 19 N. Y. 1738; Lewis v. Chapman, 16 N. Y. 369; Kingsbury v. Bradstreet Co., 116 N. Y. 211; Moore v. Francis, 121 N. Y. 199. Words to be libelous are to be taken in that sense in which those persons to whom the publication should come would be most likely to understand them. If the application or meaning of the words is ambiguous, or the sense in which they are used is uncer- tain, and they are capable of a construction which would make them actionable, although at the same time an innocent sense might be attributed to them, it is for the jury to determine, upon all the circumstances, whether they were applied to the plaintiff, and in what sense they were used. Miller v. Donovan, 16 Misc. Rep. 453, 39 N. Y. Supp. 820. It is the duty of the court in an action for libel to understand the publication in the same manner as others would naturally do. The construction which it behooves a court of justice to put on the publication which is alleged to be libelous is to be derived as well from the expressions used as from the whole scope and ap- parent object of the writer. Cooper v. Greeley, 1 Den. 347. Where a charge of crime is made against a person not named, but indicated by an intentional ambiguous description, the de- fendant is not entitled to have the words used favorably construed. Gibson v. Williams, 4 Wend. 320. The scope and object of the whole article is to be considered and such construction put upon its language as would naturally be given to it. It is not enough that the critic may torture the expressions into a charge of criminal or disgraceful act, nor on the other hand that a possible and far-fetched construction may find an inoffensive meaning in the language. The test is, whether to the mind of an intelligent man, the tenor of the article and the language used naturally import a criminal or disgraceful: charge. Moore v. Bennett, 48 N. Y. 472. Where the publication is unambiguous and admits of but one sense, the question whether.it is libelous is one of law for the .court, but where the publication is capable of being construed in a harmless sense as well as in an injurious sense, an innuendo pointing out the meaning which the plaintiffs claims to be the LIBEL AND SLANDER. 705 Art. 6. Interpretation, Construction, and Application of Language. true meaning is necessary to the sufficiency of a statement of the cause of action. The plaintiff is bound by the innuendo, and if the jury nega- tives such innuendo or the court determines that the words used are not capable of the meaning alleged in the innuendo, judgment must be given for the defendant. Beecher v. Press Publishing Co., 60 App. Div. 536, 69 N. Y. Supp. 895. But where the complaint charges the use of words which may be or may not be harmless according to the intent and sense in which they were sued, an innuendo or allegation is necessary to the effect that they were used in a sense to render them action- able Hemmens v. Nelson, 188 N. Y. 517. The submission to the jury, in an action for libel, of the ques- tion whether the alleged libelous language does not have a mean- ing, of which it is capable and which is not strained or unnatural, and which, if found, is declared by the court to be actionable, is not rendered erroneous by the fact that the language is also sus- ceptible of an innocent meaning, provided such innocent meaning is also presented to the jury to find, with the instruction that if so found the language is not actionable. Mattice v. Wilcox, 147 N. Y. 624. Words are none the less actionable because the defendant added “if reports were true.” Johnson v. Brown, 57 Barb. 118. The rule is that one speaking is accountable for the import of words as they are naturally understood by the hearer. Harrison v. Thornborough, 10 Mod. 196; Gedney v. Blake, 11 Johns. 54. Explanatory circumstances known to both parties, speaker and hearer, are to be taken into account as a part of the words. An- drews v. Woodmansce, 15 Wend. 232; Miller v. Maxwell, 16 Wend. 9; Dorland v. Patterson, 23 Wend. 422. It is not necessary, however, that a charge to be actionable should be made in direct terms. It may be made in ambiguous language or by insinuation. Gibson v. Williams, 4 Wend. 320; Rundell v. Butler, 7 Barb. 260. And whether it was the intention of the defendant to charge a party with the crime imputed by the words is a question for the jury. Dorland v. Patterson, 23 Wend. 422. Words in slander suits must be given their common and popular signification. Thomas v. Smith, 75 Hun, 573, 27 N. Y. Supp. 589. 45 706 LIBEL AND SLANDER. Art. 6. Interpretation, Construction, and Application of Language. If the words spoken in their natural and ordinary sense import a criminal charge they are actionable. There need not be the same certainty in stating the crime imputed as would be requisite in an indictment. Gibbs v. Dewey, 5 Cow. 503; Muller v. Muller, 8 Johns. 74. Nor need the words used involve a direct and positive affirma- tion; if they impute a crime by fair construction, an action may be maintained. Rundell v. Butler, 7 Barb. 260; Gorham v. Ives, 2 Wend. 534. The apparent holding to the contrary in Andrews v. Wood- mansee, 15 Wend. 232; Dorland v. Patterson, 23 Wend. 422, seems to turn upon questions of pleading rather than matter of substantive law, it being conceded in both cases that where words have a covert meaning, being spoken in ironical, oblique, or am- biguous terms, a recovery may be had if properly pleaded. A publisher is liable for carelessly publishing defamatory mat- ter concerning a person by confusing him with another person of the same name, where, if reasonable care had been taken, it could have been ascertained plaintiff was not the person intended, and punitive damages may be awarded. Weber v. Butler, 81 Hun, 244, 30 N. Y. Supp. 713. It is not necessary, in order to justify a recovery, that the plain- tiff be named in the alleged libelous article, but it is sufficient if description or reference identifies him. Palmer v. Bennett, 83 Hun, 220, 31 N. Y. Supp. 567. It is error to submit a case to the jury upon the theory that because plaintiff's name was not correctly spelled in the article, the jury might find that the article did not refer to him, where plaintiff and another person named in the article were the only persons named in the transactions described, and there was no other person of the name in the locality. Griebel v. Rochester Printing Co., 8 App. Div. 450, 40 N. Y. Supp. 759. If plaintiff is not named in the publication he may be shown to be the person intended by proper averments in the complaint. Parker v. Raymond, 3 Abb. Pr. N. 8. 343. If the words did not necessarily refer to the plaintiff, he must either allege that they were intended to and were understood by others to be applicable to him, or the complaint must follow the Code and allege that the matter was published “of and concern- ing the plaintiff.” Crane v. O’Reilly, 18 Civ. Proc. 71. IBEL AND SLANDER. "07 Art. 7. Publication and Repetition. ARTICLE VII. PUBLICATION AND REPETITION. PAGE Suppivision 1. Publication ....... 2... cee eee ee eee 407 2 MEPEMNON: gas vas ones Ceeeew wea seeeenee 713 SUBDIVISION 1. Publication. Every person is liable to an action who is concerned in the pub- lication of a libel, whether he be the author, printer, or publisher, and the extent and manner of the publication, although not af- fecting the ground of the action, is a material element in esti- mating the damages. Encye. Britannica (Article “ Libel”), p. 505. Publication is the communication of defamatory words to some third person or persons. It is essential to the plaintifi’s case that defendant’s words should be expressed ; the law permits us to think as badly as we please of our neighbors so long as we keep our uncharitable thoughts to ourselves. It is no publication when the words are only communicated to the person defamed. A man’s reputation is the estimate in which others hold him, not the good opinion which he has of himself. The burden lies on plaintiff to prove publication. Odgers, 151. To constitute an actionable publication, such as may confer a remedy by action, it is essential that there be a publication to a third person, that is, to some person other than the author or publisher, and the person whom or whose affairs the language con- cerns. No possible form of words can confer a right of action for slander or libel unless there has been a publication to some person. Townshend, 83, citing Starkie, 18, 14. No action can be maintained for libel or slander unless there had been a publication, that is, a communication by the defendant, of the words complained of to some person other than the plaintiff. Fraser, 99. Unless a libel is communicated to some third person no damage, either actual or presumed, can result. Youmans v. Smith, 153 N. Y. 214 (218), citing Holt, 281, to the proposition that, until the publication, the act is not complete in its mischief; before it is dispersed abroad it can produce no present or actual injury, 708 LIBEL AND SLANDER. Art. 7. Publication and Repetition. either to the public or individual, and, until then, there is a locus penitentie on the part of those concerned in the compos- ing and writing. Uttering slanderous words in the presence of the person sland- ered only is not actionable. Haile v. Fuller, 5 T. & C. 716, 2 Hun, 519. To constitute a publication the words must be heard and under- stood by a person other than plaintiff to whom they were ad- dressed. Broderick v. Holmes, 3 Daly, 481. Sending a sealed letter to plaintiff is not a publication which will sustain a civil action. Lyle v. Clason, 1 Cai. 581; Wazstel v. Hulman, 2 Hall, 172. But where the writer of a letter containing libelous matter reads it aloud to another, it is a publication. Snyder v. Andrews, 6 Barb. 43. In England it is held that a communication by a defendant to his wife is not a publication. Wemmliak v. Morgan, 20 Q. B. Div. 635. To read a libelous letter to another is evidence of publication, although if plaintiff invited and procured the publication of the letter for the purpose of making it the foundation of an action, such publication is privileged, unless there has been a previous publication by the defendant. filler v. Donovan, 16 Misc. Rep. 453, 39 N. Y. Supp. 820. But the fact that a letter having reference to the business of a corporation, and containing libelous matter, is dictated by the manager to a stenographer who typewrites and mails it, both per- sons being engaged in the performances of duties which their re- spective employments require, does not constitute such a publica- tion as will sustain an action for libel against a corporation. Owen v. Ogilvie Pub. Co., 32 App. Div. 465, 53 N. Y. Supp. 1033. One, who on the employment o1 the author, prints libelous mat- ter, concerning another, and delivers the printed copies to the author, knowing that he intends to submit them to various per- sons to be read, becomes liable as a publisher from the moment that any third person reads the matter, provided the same is not privileged. Youmans v. Smith, 153 N. Y. 214. A newspaper published in Ohio contained a libel of a citizen of New York, and was sold and circulated in New York,— Held, LIBEL AND SLANDER. 709 Art. 7. Publication and Repetition. that a cause of action for libel arose in this State. Vitolo v. Bee Pub. Co., 66 App. Div. 582, 73 N. Y. Supp. 273. In an action for libel, it is not competent for a plaintiff to prove that, subsequent to the publication, the libel was read in a public assemblage by a third person, and comments made upon it in the presence and hearing of the defendant. O’Brien v. Bennett, 72 App. Div. 367 (871), 76 N. Y. Supp. 498, and cases cited. So evidence may be given that the libel was posted in public places by persons unknown, the presumption of the law being that such persons acted at the solicitation and by the procurement of the defendant. Rice v. Withers, 9 Wend. 139. In Andres v. Wells, 7 Johns. 260, at p. 262, Spencer, J., in delivering the opinion of the court, lays down the rule as to the liability of the proprietor of a newspaper in an action for libel. This case is cited with approval in Dole v. Lyon, 10 Johns. 447, opinion of Kent, Ch. J., p. 461, and is followed. The opinion proceeds as follows: “It is not sufficient that the printer, by naming the author, gives the party aggrieved an action against him. This reason of the rule is mentioned in Lord Northamp- ton’s case and repeated by Lord Kenyon. But this remedy may afford no consolation and no relief to the injured party. The author may be some vagrant individual who may easily elude process; and, if found, he may be without property to remunerate in damages. It would be no check on a libelous printer, who can spread calumny with ease and with rapidity throughout the community. The calumny of the author would fall harmless to the ground, without the aid of the printer. The injury is in- flicted by the press, which, like other powerful engines, is mighty for mischief as well as for good. I am satisfied that the propo- sition contended for on the part of the defendant is as destitute of foundation in law as it is repugnant to principles of public policy.” Andres v. Wells, supra, is also cited with approval in King v. Root, 4 Wend. 114 (186); Hunt v. Bennett, 19 N. Y. 173 (175). The rule that the proprietor of a newspaper is responsible for any publication therein is recognized in Martin v. Van Schoick, 4 Abb. Pr. 479. 710 LIBEL AND SLANDER. Art. 7. Publication and Repetition. The rule is again recognized in Robertson v. Bennett, 44 N. Y. Super. (12 J. & S.) 66. , The rule stated is recognized in Sanford v. Bennett, 24 N. Y. 20, in the opinion of Denio, J. (p. 22), in the following language: “Tt being impossible to deny the libelous character of the pub- lication, or to maintain that the defendant was exempt from responsibility on account of the article having been copied from another newspaper, though it was stated to have been so copied, the only question is whether it was what was termed a privileged communication.” One who merely forwards a libelous communication at the request of another may be held liable for its publication. Cheri- tree v. Roggen, 67 Barb. 124. A notice given by the proprietor of a newspaper to his em- ployees that nothing reflecting upon the reputation of any person or corporation should be published in his newspaper until after strict investigation the truth of the same had been ascertained cannot be construed as.a limitation of the power of the employees so as to absolve the proprietor from liability from consequences flowing from: failure to conform to his requirements. Such notice was intended for their guidance and direction and was a ‘ warning to them. Their acts and disregard of that warning must in legal effect be considered as if they were his own. Crane v. Bennett, 77 App. Div. 102 (107), 79 N. Y. Supp. 66, citing McMahon v. Bennett, 31 App. Div. 16, 52 N. Y. Supp. 390; Morgan v. Bennett, 44 App. Div. 323, 60 N. Y. Supp. 619; O’Brien v. Bennett, 59 App. Div. 623, 69 N. Y. Supp. 298, hold- ing that Craven v. Bloomingdale, 171 N. Y. 439, does not sustain a contrary view. Publication is essential to a cause of action and is not estab- lished by defendant reading a letter written by him to plaintiff as evidence material and relevant, on the trial of an action, be- tween the parties, in the presence of the referee and persons attending the trial. Woodman v. Kidd, 25 App. Div. 254, 49 NX. Y. Supp. 301. The secretary, treasurer, and owner of a majority of stock in a newspaper owned by an association which might be sued under the statute is not personally liable as principal for libelous matter published in a newspaper. McCabe v. Jones, 12 Week. Dig. 339. Handing a printed pamphlet to the governor upon an argu- LIBEL AND SLANDER. 711 Art. 7. Publication and Repetition. ment before him in favor of the passage of a bill awaiting his signature by a person who had not prepared said pamphlet and did not know its contents, was held not to be a publication, so as to sustain an action for libel. Woods v. Wiman, 47 Hun, 362, reversed 122 N. Y. 495, citing Cook v. Hill, 3 Sandf. 349; Rex v. Baille, 2 Esp. N. P. 91; Howard v. Thompson, 21 Wend. 327, upon the ground that there was evidence that defendant gave copies of the pamphlet to persons in the executive cham- ber who did not appear to have any connection with the hearing which was then being held. By chapter 340, Laws 1890, it is made unlawful to state to a reporter libelous matter to procure its publication. It is not necessary in order that the offense should be within this provision, that the person should procure its publication. It is merely re- quired that the publication be secured by reason of the state- ment made. Thomas v. Smith, 75 Hun, 573, 27 N. Y. Supp. 589. Where the evidence in an action for libel, at most, only estab- lishes that a person whom defendant knew to be a reporter asked him as to a report which was in circulation concerning matters alleged in the complaint, stating that he understood that defend- ant had asserted the facts which were subsequently published, and the latter admitted having done so, there being no proof that the latter’s statement was made for publication, nothing having been said on the subject, and there being other evidence tending to show that defendant did not intend that it should be published and had no design to procure its publication, the refusal of the trial court to grant a nonsuit or to direct a verdict for defendant is reversible error, upon the ground that the proof was insufficient to establish a cause of action against him for libel. Schoepflin v. Coffey, 162 N. Y. 12. A news-collecting agency which transmits, to each of the news- papers to which it furnishes news, a libelous article, which is published in each of such newspapers, incurs two distinct lia- bilities; first, for the original publication, consisting in the trans- mission of the article to the newspapers; and second, that of a joint tort feasor with each newspaper which publishes the article ; and the recovery and satisfaction of a judgment obtained against the news-collecting agency, is not a bar in an action against the publishers of a particular newspaper for the publication of the article therein. Union Associated Press v. Heath, 49 App. Div. 712 LIBEL AND SLANDER. Art. 7, Publication and Repetition. 247, 63 N. Y. Supp. 96, citing Palmer v. N. Y. News Publishing Co., 31 App. Div. 212, 52 N. Y. Supp. 539; Woods v. Pang- burn, 75 N. Y. 498, oiled Palmer v. United Press, 67 App. Div. 68. Printing a libel is regarded as a publication when possession of the printed matter is delivered with the expectation that it will be read by some third person, provided that result actually fol- lows. He who furnishes the means of convenient circulation, knowing, or having reasonable cause to believe, that it is to be used for that purpose, if it is in fact so used, is guilty of aiding in the publication and becomes the instrument of the libeler. You- mans v, Smith, 153 N. Y. 218. It is a sufficient allegation of publication that defendant was the proprietor of a newspaper in which the libel was published. Hunt v. Bennett, 19 N. Y. 178. Where defendant’s name was appended to the article as chair- man of a meeting, and he admitted that he ordered the address to be published, it was held sufficient proce of publication. Lewis v. Few, 5 Johns. 1. Evidence to the effect that a witness had seen a newspaper printed, and that the paper produced was printed he believed with the device used in defendant’s office was held prima facie evi- dence of publication in Southwick v. Stevens, 10 Johns. 448. “ And proof that the newspaper produced is similar to those left at the office of a subscriber, and that the libelous article was the same as that in the copy received by the subscriber, is sufficient proof of publication. //uff v. Bennett, 4 Sandf. 120. So also proof that defendant was a corporation organized to publish a newspaper, and that the paper in which the libel was printed was published at defendant’s place of business. Marx v. Press Publishing Co., 34 Bt. Rep. 816, 12 N. Y. Supp. 162. But publication is not established by nnpae that defendant sold copies of the newspapers containing the libel, unless proof is made that some one saw or read the libel in some eo the papers sv sold. Prescott v. Tousey, 18 J. & S. 12. The forwarding by school trustees to a school teacher charged with improper conduct, written copies of statements of witnesses, is not a publication. Galligan v. Kelly, 64 St. Rep. 197, 31 N. Y. Supp. 561. LIBEL AND SLANDER. 718 Art. 7. Publication and Repetition. SUBDIVISION 2. Repetition. It was held for a very considerable period in England, grow- ing out of a dictum in the Larl of Northampton’s Case, 12 Coke, 132 (1613), that the fact that language was only repeated by a person, and not originated by him, was a defense. Subsequently, in Davis v. Lewis, 7 T. R. (1796), the qualification was added that the defense must at the time of the repetition mention the name of the previous publisher. This rule was repudiated by Kent, Ch. J., in Dole v. Lyon, 10 Johns. 454 (461). It is no defense that the defendant at the time of speaking of the words gave his author, who was in fact told by another what he uttered against the plaintiff. Inman v. Foster, 8 Wend. 602; Mapes v. Weeks, 4 Wend. 659. Compare Sanford v. Bennett, 24 N. Y. 20, supra. It is no defense to an action that an article was copied from another paper although there was disbelief expressed of some of the allegations contained in it, but nothing said in affirmance or denial of the libelous charges. An action will lie for repub- lishing a libelous article from another journal, though he quote his authority, and this without express malice. Hotchkiss v. Oli- phant, 2 Hill, 510. The repetition of injurious words as having been spoken by another is a libelous publication as much so if maliciously pub- lished and as if the direct charge had been made. O’Shaughnessy v. Morning Journal Association, 71 Hun, 47, 24 N. Y. Supp. 609. “Under a single count in an action of slander, plaintiff may prove a repetition of the same slanderous charge, for the purpose of showing the degree of malice, and thus enhancing the damage. So, also, when the words charged are not actionable per se, but the plaintiff has alleged and proven special damage, she may show a repetition of the charge, although not spoken in the presence or brought to the knowledge of the one through whose action plain- tiff sustained the special damage.” Bassell v. Elmore, 48 N. Y. 561. The rule with regard to allowing evidence of the repetition of 714 LIBEL AND SLANDER. Art. 7. Publication and Repetition. slanderous words alleged in the complaint is laid down by Church, Ch. J., in Distin v. Rose, 69 N. Y. 122 (125), as follows: “First. It is competent to prove the speaking of the same words charged in the complaint, at a period so long prior that the ‘statute of limitations would be a bar to an action. (44 N. Y. 266.) Second. A repetition of words, imputing the same charge, al- leged in the complaint to have been made, may be proved to have been spoken at any time before the commencement of the action, but not words imputing a different charge. (6 Hill, 518; 4 N. 2. 161.) Third. Nor can the same words be proved to have been ut- tered after the commencement of the action. (60 N. Y. 337.)” “Tt is the prevailing doctrine that the reiteration of a libel or slander may be proved on the question of malice and damages, probably with this qualification, however, that the cause of action for the reiteration has been barred by the statute of limitations, or that the language subsequently reiterated is for some other reason not actionable. The authorities upon this point are not harmonious. Townshend on Slander and Libel (4th ed.), 653 et seg.; Stuart v. Lovell, 2 Stark. 84; Thomas v. Croswell, 7 Johns. 264; Inman v. Foster, 8 Wend. 602; Keenholts v. Becker, 3 Den. 346; Root v. Lowndes, 6 Hill, 518; Johnson v. Brown, 57 Barb. 118; Thorn v. Knapp, 42 N. Y. 474; Titus v. Sumner, 44. N. Y. 266; Bassell v. Elmore, 48 N. Y. 561; Frazier v. Me- Closky, 60 N. Y. 337; Daly v. Byrne, 77 N. Y. 182; Cruikshank v. Gordon, 118 N. Y. 178. No case holds that a repetition of a libel or slander after suit brought is in its nature not competent evidence on the question of malice and damage, and whenever it has been excluded as evidence it has always been upon the ground that it was an independent cause of action, and thus, if such evidence were received, that there would be danger of a double recovery.” Turton v. N. Y. Recorder Co., 144 N. Y. 144 (150). If, after recovery and satisfaction for one slanderous utterance or libelous publication, the same defamatory matter is uttered or published again by the wrongdoer, this is a new injury and another cause of action, and there may be another recovery and satisfaction therefor. Woods v. Pangburn, 75 N. Y. 495, citing Rockwell v. Brown, 36 N.-Y. 207. The party who repeats slanderous words is alone liable for the damages incurred by his statement. Terwilliger v. Wands, 17 LIBEL AND SLANDER. 715 Art. 7. Publication and Repetition. ‘N. Y. 54 (58), citing Hastings v. Palmer, 20 Wend. 225; Keen- holtz v. Becker, 3 Den. 346. “ Ordinarily, the repetition of defamatory language by another than the first publisher is not a natural consequence of the first publication, and, therefore, generally the loss resulting from such repetition does not constitute special damage, and is not attribu- table to the first publisher. This rule results from the principle that every one who repeats a slander is responsible for the damage caused by such repetition, and such damage is not the proximate and natural consequence of the first publication of the slander. justifiable and innocent, and not to give a cause of action against the oné repeating the same, then the first publisher thereof is generally responsible for the damage caused by such repetition.” Bassell v. Elmore, 48 N. Y. 561 (564), citing Terwilliger v. Wands, 17 N. Y. 54; Fowles v. Rowen, 30 N. Y. 20. It is said in Schoepflin v. Coffey, 162 N. Y. 12, opinion Mar- ‘tin, J. (17): “It is too well settled to be now questioned, that one who utters a slander, or prints and publishes a libel, is not responsible for its voluntary and unjustifiable repetition, without his authority or request, by others over whom he has no control, and who thereby make themselves liable to the person injured, and that such repetition cannot be considered in law a necessary, natural, and probable consequence of the original slander or libel. ‘(Newall on Defamation, 245; Moak’s Underhill on Torts, 145; M’Gregor v. Thwaites, 3 B. & C. 35.) The remedy in such a case would be against the party who printed and published the words thus spoken, and not against the one speaking them, as a person ‘is not liable for the independent illegal acts of third persons in ‘publishing matters which may have been uttered by him, unless they are procured by him to be published, or he performed some act which induced their publication. (Ward v. Weeks, 7 Bing. 211; Olmsted v. Brown, 12 Barb. 657.) The repetition of de- famatory language by another than the first publisher is not a natural consequence of the first publication, and, therefore, the loss resulting from such repetition is not generally attributable to the first publisher. This rule is based upon the principle that every person who repeats a slander is responsible for the damage caused by such repetition, and that such damage is not the proxi- mate and natural consequence of the first publication of the slan- 716 LIBEL AND SLANDER. Art. 8. Malice. der. (Bassell v. Elmore, 48 N. Y. 564; Fowles v. Bowen, 30 N. Y. 20; Terwilliger v. Wands, 17 N. Y. 57, 58; Laidlaw v. Sage, 158 N. Y. 73.)” For the rule as to proof of repetition, see “ Evidence,” art. XII. ARTICLE VIII. MALICE. eate Suppivision 1. Malice generally considered .......... wine C16 2. Malice in law ..... eee er ee, 718 Os MENGE Ti TAC aio ne ies Rakes Sees hea ws 720 SUBDIVISION 1. Malice Generally Considered. Malice has two significations. First, its ordinary meaning of ill-will against the person, and the other its legal signification which is a wrongful act done intentionally, without just cause or excuse. The first implies a desire and intention to injure; the latter is not necessarily so. But if false and defamatory state- ments are made without sufficient cause or excuse, they are legally malicious. These distinctions have been denominated malice in fact, and malice in law. The first indicating actual ill-will, the second simply that the act was wrongful. Champlin, J., in Bacon v. Michigan Cent. R. R. Co., 55 Mich. 222, 1 Am. Lead. Cas. 193, cited in Newell, 321. The term “ malice ” has a two-fold signification ; there is malice in law, as well as malice in fact. In the former and legal sense it signifies a wrongful act, intentionally done without any justifica- tion or excuse. In the latter and popular sense it means ill-will toward a particular person; in other words, an actual intention to injure or defame him. Gilmer v. Eubank, 13 Ill. 274, cited in Newell, 323. Every defamatory publication prima facie implies malice by the author and publisher toward the person concerning whom such publication is made, and proof of malice is not in such cases required beyond the proof of the publication itself. ‘The justifica- tion, excuse, extenuation, if any, must be shown by defendant. Privileged communications, however, are an exception, and in such cases the plaintiff must show actual malice in order to main- tain an action. Newell, 390. LIBEL AND SLANDER. 717 Art. 8. Malice. Malice is defined to be any corrupt or wrong motive of per- sonal spite or ill-will, Fraser (3d ed.), 152, citing Royal Aquarium Society v. Parkinson (1892), 1 Q. B. 484; Stuart v. Bell (1891), 2 Q. B. 351. Malice in law simply means a general wickedness of intent on the part of.the person and depraved inclination to do harm, or to disregard the rights or safety of mankind generally. The existence of which sentiments is made manifest by mischievous or injurious acts on the part of him who entertains them. Flood, p. 32. The word “ malice,” as a term of law, has a meaning somewhat different from that which it possesses in ordinary parlance. In its ordinary sense, “ malice ” denotes ill-will, a sentiment of hate or spite, especially when harbored by one person toward another. The word is so employed in the well-known sentence in the litany © of the Church of England, “ From envy, hatred, and malice,” etc. This is what the law terms “ malice in fact,” “actual” or “personal ” malice, to distinguish it from the legal sense attrib- uted to the term, and which, from being used in such a sense, is accordingly designated “malice in law.” “ Malice in fact” is, to use the language of a late eminent judge, “of two kinds — either personal malice against an individual, or that sort of gen- eral violation of the right consideration due to all mankind which may not be personally directed against any one.” And Lord Jus- tice Brett, in a comparatively recent case, where a question of privilege arose, said: ‘‘ By malice here I mean, not a pleading expression, but actual malice, or what is termed ‘ malice in fact;’ 1. @., a wrong feeling in the defendant’s mind.” Newell on Libel and Slander, p. 315. Mr. Justice Stephens says of the word “malice:” “It seldom has any meaning except a misleading one. It refers not to inten- tion, but to motive, and, in almost all legal inquiries, intention, as distinguished from motive, is the important matter.” Malice is essential to every action for libel. It has been some- times divided into legal malice, or malice in law, and actual malice, or malice in fact. These terms might seem to imply that the two kinds of malice are different in their nature. The true distinction, however, is not in the malice itself, but simply in the evidence by which it is established. In all ordinary cases, if the charge or imputation complained of is injurious, and no justifiable motive for making it is apparent, malice is inferred from the falsity of the charge. The law, in such cases, does not impute malice not 718 LIBEL AND SLANDER. ‘Art. 8. Malice. existing in fact, but presumes a malicious motive for making a charge which is both false and injurious when no other motive appears. Where, however, the circumstances show that the de- fendant may reasonably be supposed to have had a just and worthy motive for making the charge, then the law ceases to infer malice from the mere falsity of the charge, and requires from the plaintiff other proof of its existence. It is actual malice in either case; the proof only is different. Lewis v. Chapman, 16 N. Y. 372. Where an article is libelous per se, and has been shown to be false, the jury may, in the absence of privilege, infer the existence of the express malice necessary to support an award of punitive damages from the simple fact of the publication of the article. Brandt v. Morning Journal Assn., 81 App. Div. 188, 80 N. Y. Supp. 1002. The malice of one defendant cannot be imputed to others with- out connecting proof. Krug v. Pitass, 162 N. Y. 154, reversing 16 App. Div. 480, 44 N. Y. Supp. 864. 4 SUBDIVISION 2. Malice in Law. One meaning of malice is absence of legal excuse, this is the sense in which the term is most frequently employed. Substi- tute “absence of legal excuse” for “malice” in many of the opinions in the reports which are difficult to be understood and they will become easily intelligible. Townshend, 76. Again malice in legal understanding implies no more than will- fulness. Townshend, 79. The lawful presumption is that publication, if false and libel- ous, was malicious. Youmans v. Paine, 86 Hun, 479, 35 N. Y. Supp. 50; Van Alstyne v. Rochester ng Co., 25 App. Div. 282, 49 N. Y. Supp. 523. The unprivileged publication of matter libelous per se raises a presumption of malice. Hartman v. Morning Journal Assn., 46 St. Rep. 181, 19 N. Y. Supp. 398, affirmed 138 N. Y. 638. Malice is presumed in the publication of an article respecting a party which tends to expose him to contempt and ridicule. O’Brien v. Bennett, 72 App. Div. 367, 76 N. Y. Supp. 498. Malice is an implication of law from the false and injurious nature of the charge. It is inferred from the fact of publication. LIBEL AND SLANDER. 719 Art. 8. Malice. If the publication is libelous upon its face malice is a conclusion of law. If the words uttered were not privileged the law implies malice. Root v. King, 7 Cow. 618, 4 Wend. 114; Fry v. Bennett, 5 Sandf. 54; Washburn v. Cook, 3 Den. 110; Littlejohn v. Greeley, 13 Abb. 41; Byam v. Collins, 111 N. Y. 148. Malice may be inferred where a libel was recklessly published as well as where its publication is induced by personal ill-will. Young v. Fox, 26 App. Div. 261, 49 N. Y. Supp. 634. Legal malice results from proof of the transaction which the law pronounces wrongful, and, therefore, malicious. Howard v. Seaton, 4 N. Y. 160. Evidence of the falsity of the libelous publication is evidence of malice, and when defendant introduces evidence to show ab- sence of actual malice, the existence of such malice becomes a question of fact for the jury. Crane v. Bennett, 77 App. Div. 102, 79 N. Y. Supp. 66. Belief in the truth of a publication is not sufficient to relieve the responsibility of the publisher, or even to show good faith on his part. Hartman v. Morning Journal Assn., 46 St. Rep. 181, 19 N. Y. Supp. 398, affirmed. 138 N. Y. 638. Where a publication is made in wanton or reckless disregard of the rights of plaintiff, malice is predicated thereon. Shanks v. Stumpf, 23 Misc. Rep. 264, 51 N. Y. Supp. 154. In an action for libel or slander, though evidence may be given to increase damages, it is not essential. Bromage v. Prosser, 4 B. & C. 257; Hargrave v. Le Breton, 4 Burr. 2425. The courts look at the effect of the publication not at the in- tent. Haire v. Wilson, 9 B. & C. 648; Fisher v. Clement, 10 B. & C. 472. Even a finding that defendant had no malicious intent by the jury will not avail him; since defendant must be deemed to have intended the consequences naturally resulting from his words. Wenden v. Ash, 18 C. B. 845. Malice so far as the law requires it to sustain an action is im- plied from the publication of that which is untrue. The law presuming it to exist in such case. Express malice is not required to sustain an action. Littlejohn v. Greeley, 13 Abb. 41. It is no excuse that the publication was made accidentally or inadvertently, or with good motives or in an honest belief in its truth. Moore v. Francis, 121 N. Y. 199. 720 LIBEL AND SLANDER. Art. 8. Malice. SUBDIVISION 3. Malice in Fact. Fraser (3d ed.) says, at page 155, citing authorities, that malice may be proved either by showing that defendant knew the words were untrue when he wrote or spoke them, or that they were uttered with the intention of injuring the plaintiff, or that the plaintiff and defendant were rivals and had previously quarreled, or that the defendant was actuated by personal resentment or any other wrong motive. It is even held that unnecessarily extensive publication of the words, or other unnecessary violence indicates malice. Gerard v. Dickenson, 4 Rep. 18; Peacock v. Reynal, 2B. & G. 151; Hooper v. Truscott, 2 Scott, 672; Gilpin v. Fow- ler, 9 Exch. 615; Rogers v. Clifton, 3 Bos. & P. 587; Jackson v. Hopperton, 16 C. B. (N. 8.) 829; Wright v. Woodgate, 2 C., M. & R. 578. “Although a man may use excessive language, and yet have no malice in his mind.” Neville v. Fine Arts Insurance Co. (1895), 2 Q. B. 170. Express malice is when one with a sedate, deliberate mind, and formed design doth kill (or injure) another, which formed de- sign is evidenced by external circumstances discovering that in- ward intention, as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him bodily (or other) harm. Newell on Libel and Slander, 317. Proof of express malice is admissible to enhance damages. Read v. Sweetzer, 6 Abb. Pr. (N. S.) 9; Frye v. Bennett, 28 N. Y. 324. Malice may be established by circumstances. Cheritree v. Rog- gin, 67 Barb. 124. By declarations of defendant before the publication complained of. Rosenwald v. Hammerstein, 12 Daly, 377. In an action for charging plaintiff with theft a threat by de- fendant to “follow this thing out if it costs $100, to see you discharged,” was held to be properly proven to show malice. Wright v. Gregory, 9 App. Div. 85, 41 N. Y. Supp. 139. The admission in evidence of statements showing ill-will toward plaintiff, made several years before the alleged libel, by one of the defendants, who did not know of the article until after its publication, which statements had not been heard by, or com- LIBEL AND SLANDER. 721 Art. 8. Malice. municated to, the other defendants before the publication, is re- versible error, as the general malice proved thereby did not cause. or prompt the publication. Krug v. Pitass, 162 N. Y. 154, reversing 16 App. Div. 480, 44 N. Y. Supp. 864. Other articles written by the same person containing reference. to plaintiff, showing that he had easy means of ascertaining the truth, may be shown. Morrison v. Press Publishing Co., 38 St. Rep. 357. Reiteration of the libel stating that an action had been threat- ened and a retraction demanded may be shown on the question of malice. Ward v. Deane, 32 St. Rep. 270. Plaintiff may show a repetition of the slanderous charge for the purpose of showing malice by way of enhancing the damages. Root v. Lowndes, 6 Hill, 518; Inman v. Foster, 8 Wend. 602; Titus v. Sumner, 44 N. Y. 266; Bassell v. Elmore, 48 N. Y. 561; Johnson v. Brown, 57 N. Y. 118; Distin v. Rose, 7 Hun, 83. See Fowles v. Bowen, 30 N. Y. 20; Frazier v. McCloskey, 60 N. Y. 337; Flanders v. Groff, 25 Hun, 553. But plaintiff is not entitled to prove previous utterances other than the one complained of, or the publication of prior libels, ac- tions for which are not barred by the statute of limitations. Doyle v. Levy, 89 Hun, 350, 69 St. Rep. 798, 35 N. Y. Supp. 434. Evidence of words of a different import on another occasion are not admissible. Howards v. Sexton, 4 N. Y. 157. Nor does speaking of other slanderous words after action brought, which may be the subject of another suit. Frazier v. McCloskey, 60 N. Y. 337. What was said by defendant at the time of directing the pub- lication is evidence to disprove actual malice upon the question of damages. Taylor v. Church, 8 N. Y. 452. Evidence of circumstances tending to disprove malice is not admissible in the absence of proof that defendants had knowledge of such circumstances at the time of the publication. Morey v. Morning Journal Assn., 17 St. Rep. 266, 1 N. Y. Supp. 475. Privileged communications are protected from the presumption of malice usually to be inferred. When it appears that the party had just occasion for speaking the words deemed slanderous, malice is not to be presumed and additional evidence is necessary to establish the charge. Presumption of malice being rebutted by the privilege, plaintiff must show that defendant was influ- enced by motives other than the mere discharge of duty, and evi- Ag 7292 LIBEL AND SLANDER. Art. 8. Malice. dence that the statement was false is not sufficient to raise the presumption of malice. Ormsby v. Douglas, 37 N. Y. 477, cit- ing Howard v. Thompson, 21 Wend. 319. Where a communication is privileged, the question of good faith in its publication, actual malice as distinguished from mal- ice presumed from publication, and also belief in the truth of the statement are matters for the jury. The question for the jury is whether the circumstances of the allegation were such as to repel the legal inference of malice, and throw upon the plaintiff the burden of offering evidence of its existence beyond the falsity of the charge. Privileged communications are the exception to the general rule as to malice, and the burden rests on the plaintiff to show that such communications are within the exception. Mat- tice v. Wilcox, 147 N. Y. 624, citing Lewis v. Chapman, 16 N. Y. 369 (878); Byam v. Collins, 111 N. Y. 143; Hamilton v. Eno, 81 N. Y. 116. If the publication is privileged plaintiff must show express malice, but only in such case. Neil v. Fords, Howard & Hulbert, 72 Hun, 12, 55 St. Rep. 74, 25 N. Y. Supp. 406; Youmans v. Paine, 86 Hun, 479, 69 St. Rep. 473, 35 N. Y. Supp. 50. It is not the duty of the plaintiff to give evidence of the falsity of the libel in the first instance except in the case of a qualifiedly privileged communication when malice is a necessary ingredient of the cause of action, and evidence of the falsity of the defama- tory cause of action may be given to defeat the privilege. Rem- sen v. Bryant, 24 Misc. Rep. 238, 52 N. Y. Supp. 515, distin- guishing Samuels v. Evening Mail Assn., 75 N. Y. 604; McFad- den v. Morning Journal Assn., 28 App. Div. 508, 51.N. Y. Supp. 275. Where the communication alleged to be libelous is privileged the court will not imply malice from the mere fact of the publi- cation, and without proof of malice, express or implied, there can be no recovery. Ginsberg v. Union Surety & Guaranty Co., 68 App. Div. 141, 74 N. Y. Supp. 561. The privilege accorded to journalists and regular correspond- ents, in writing and commenting upon current affairs, is not a defense if it appears that such privilege has been used as a means of gratifying malice. Hart v. Townsend, 67 How. Pr. 88. In an action for libel it is competent to prove as against a news- paper corporation the ill-will or malice of the reporter who wrote LIBEL AND SLANDER. 723 Art. 9. Defenses. the article for the purpose of recovering punitive damages. Clifford v. Press Publishing Co., 78 App. Div. 79, 79 N. Y. Supp. 767. For further authorities bearing on the question of malice, see “ Evidence” and “ Privileged Communications,” ARTICLE IX. DEFENSES. pice Susprvision 1. Justification ......0.. 0. eee eee e eevee es 198 2. Mitigation ......... a is aaa Raw oom SA 726 3. Privileged communications .............. 731 4, Fair comment and criticism ........0...6.. 759 5. Former recovery ........00. Lalo bee bie aha 763 : SUBDIVISION 1. Justification. It is a good defense to an action for libel and slander that the words are true in substance and in fact. Fraser on Libel and Slan- der (3d ed.), 82. The publication of the truth is, as to a civil action, absolutely privileged. ‘Townshend on Libel, 327. In all civil actions for libel and slander the truth of the publica- tion is a complete defense. 18 Am. & Eng. Encye. of Law (2d ed.), 1067. In civil actions, and against a party coming into a court of justice on a claim for damages, it has long been the rule of com- mon law that the truth of the facts imputed constituting the slanderous or libelous charge may be pleaded by way of justifi- cation, and if proved, constitute a good bar to the action. In such case, of course, the motive and purpose are immaterial and cannot be the subject of inquiry. The rule proceeds upon the principle that whatever is the motive, if the charge against the individual suing is true, if he is in fact guilty of the crime or disgraceful conduct imputed to him, he has sustained no damage for which he can claim redress in a court of justice. Newell, 795. In civil actions where the truth of the alleged libel is pleaded in justification, it may be proved as a complete bar to the suit, and in such action the motives with which the publication was made are not material. Joannes v. Jennings, 6 T. & C. 138, 724 LIBEL AND SLANDER. Art. 9. Defenses. citing Root v. King, 7 Cow. 618, s. c., 4 Wend. 113; Baum v. Clause, 5 Hill, 196, where it is said, “ Our laws allow a man to speak the truth, although it be done maliciously.” The defendant may prove the truth of the charge, notwithstand- ing that the plaintiff has received a pardon for the matter on which the statement is based. Baum v. Clause, 5 Hill, 196. While the truth of a libel is a complete defense it must be pleaded either in justification or in mitigation. Roeber v. New York Staats Zeitung, 1 App. Div. 427, 37 N. Y. Supp. 255. Where the truth is pleaded as a justification, it may be proven as a complete bar to the action. Joannes v. Jewnings, 6 T. & C. 188; George v. Jennings, 4 Hun, 66. The justification, however, must be as broad as the charge, and of the very charge attempted to be justified. Townshend, 332; Bissell v. Cornell, 24 Wend. 354; Stilwell v. "Barter, 19 Wend. 478; Fidler v. Delevan, 20 Wend. 57; Powers v. Skinner, 1 Wend. 451; Cooper v. Barber, 24 Wend. 105; McKinly v. Rob, 20 Johns. 351; Ormsby v. Douglass, 2 Abb. Pr. 407; Herr v. Bamberg, 10 How. Pr. 128; Fletcher v. Jones, 64 Hun, 274, 19 N. Y. Supp. 47; Jaycocks v. Ayres, 7 How. 215; Loveland v. Hosmer, 8 How. 215; Hathorn v. Congress Spring Co., 44 Hun, 608; Bald- win v. Genung, 74 N. Y. Supp. 835; Lanpher v. Clark, 77 Hun, 506, 29 N. Y. Supp. 107. The truth of the statement to constitute a defense must be sub- stantially made out in its entirety, though justification need not be identical in letter and form. Miller v. Donovan, 16 Misc. Rep. 453, 39 N. Y. Supp. 820. See also Huff v. Bennett, 6 N. Y. 337: Daly v. Byrne, 1 Abb. N. CO. 150. The general rule that the justification must be as broad as the libel charged is reiterated in Brush v. Blot, 16 App. Div. 80, 44 N. Y. Supp. 1073; Young v. Fox, 26 App. Div. 268, 49 N. Y. Supp. 634; Morse v. Press Pub. Co., 49 App. Div. 875, 63 N. Y. Supp. 423. A pleading of justification which relates to portions only of the publication, and which is not pleaded as a partial defense or in mitigation, is not sufficient. Sawyer v. Bennett. 49 St. Rep. 774. But the rule of pleading that the justification shall be as broad as the charge does not mean that in answering justification must be broad enough to embrace every slanderous charge contained in the complaint. When several separate and distinct things are LIBEL AND SLANDER. 425 Art. 9. Defenses. charged the defendant may justify as to one, though he fails as to the others. Lanpher v. Clark, 149 N. Y. 472; Holmes v. Jones, 121 N. Y. 461. In the following cases it was held that the justification was not sufficiently broad to constitute a defense: Blocks v. Bemis, 8 Johns. 455; Genet v. Mitchell, 7 Johns. 120; Riggs v. Deniston, 3 Johns. Cas. 198; Littlejohn v. Greeley, 18 Abb. Pr. 41; Loveland v. Hosmer, 8 How. 215; Tobin v. Sykes, 71 Hun, 469, 24 N. Y. Supp. 943; Jasper v. Press Pub. Co., 76 Hun, 64, 27 N. Y. Supp. 619, affirmed 149 N. Y. 612; Palmer v. Haight, 2 Barb. 210; Andrews v. Vanduzer, 11 Johns. 38; Morse v. Press Pub. Co., 49 App. Div. 375, 63 N. Y. Supp. 423. The plaintiff can never properly be permitted to give evidence of the falsity of the defamatory matter unless in rebuttal of evi- dence of its truth. Remsen v. Bryant, 24 Mise. Rep. 238, 52 N. Y. Supp. 515, citing Prince v. Brooklyn Eagle, 16 Mise. Rep. 186, 37 N. Y. Supp. 250; Ullrich v. N Y. Press Co., 23 Mise. Rep. 168, 50 N. Y. Supp. 788; Shanks v. Stumpf, 23 Misc. Rep. 26% 51 N. Y. Supp. 154; Cady v. Brooklyn Union Pub. Co., 23 Mise. Rep. 409, 51 N. Y. Supp. 198. But see Stafford v. Morn- ing Journal, 68 Hun, 467, 22 N. Y. Supp. 1008. The burden of proving facts constituting justification is upon the defendant. Clemens v. Mellon, 27 App. Div. 349, 49 N. Y. Supp. 1129. It is no defense by way of justification that the charge was made upon information received from others. Heyler v. N. Y. News Pub. Co., 71 Hun, 4, 24 N. Y. Supp. 499, affirmed without opinion 148 N. Y. 734. See Maeske v. Smith, 35 St. Rep. 541, 12 N. Y. Supp. 423; Ryer v. Fireman’s Journal Co., 11 Daly, 251; Skinner v. Powers, 1 Wend. 451; Inman v. Foster, 8 Wend. 602; Van Benschotten v. Yaple, 13 How. 97. A plea of justification precludes defendant from claiming that the publication was an act of his agent only. Youmans v. Paine, 86 Hun, 479, reversed 153 N. Y. 214. In order to justify a charge of perjury the evidence must be such as would be sufficient to convict the plaintiff on an indict- ment for perjury. Woodbeck v. Keller, 6 Cow. 118; Clark v. Dibble, 16 Wend. 601. But see Hopkins v. Smith, 3 Barb. 599. The provision of section 8, article 1 of the Constitution referring to libel that “ if it shall appear to the jury that the matter charged 726 LIBEL AND SLANDER. Art. 9. Defenses. as libelous is true, and was published with good motives, and for justifiable ends, the parties shall be acquitted,” applies only to criminal prosecution. George v. Jennings, 4 Hun, 66. The defense of justification is more fully considered under Pleading, Art. XI, and Evidence, Art. XTI, Subd. 3. SUBDIVISION 2. Mitigation. By section 535 of the Code it is provided that in an action for libel or slander the defendant may prove mitigating circumstances notwithstanding that he has pleaded and attempted to prove justi- fication. What constitutes such proof is defined by section 536. Mitigating circumstances are such as tend to show the absence of malice, although not tending to prove the truth of the charge. Newell, 889. Evidence in mitigation must consist of those circumstances which, while not arising to the dignity of a justification of the charge as true, yet do in an appreciable degree tend toward that end, and thus permit of the inference that the defendant was not actuated by malice in publishing the libel. They must be of such a nature as to show that the defendant, though mistaken, believed the charge to be true when it was made. ‘The mitigating facts must be connected or bear upon the defamatory matter. Mattice v. Wil- cox, 147 N. Y. 624, citing Bush v. Prosser, 11 N. Y. 347; Hamil- ton v. Eno, 81 N. Y. 106; Bisbey v. Shaw, 12 N. Y. 67. Cited in turn in Gray v. Brooklyn Union Publishing Co., 35 App. Div. 286, 55 N. Y. Supp. 35. Mitigating circumstances, under the old system when justifica- tion was set up, could not be proved because they did not amount to a justification. Mattice v. Wilcox, 147 N. Y. 634, citing Bush yv. Prosser, 11 N. Y. 347; Bisbey v. Shaw, 12 N. Y. 67. The latter case states that the Code has changed the law in this respect, and that the defendant may now allege the truth of the charge in justification, and also facts tending to prove the truth in mitigation of damages, and although the evidence fails to prove justification he is entitled to have it submitted to the jury on miti- gation of damages. Matter by way of mitigation must be such as tends to furnish some excuse for publishing the libel complained of. Hess v. LIBEL AND SLANDER. Or Art. 9. Defenses. New York Press Co., 26 App. Div. 73, 49 N. Y. Supp. 894, citing Hartman v. Morning Journal Association, 46 St. Rep. 184, 19 N. Y. Supp. 398; Hagar v. Tibbits, 2 Abb. Pr. (N. 8.) 102, to the point that a party cannot shelter himself against the conse- quences of the alleged slander by proof that he had information as to the fact from another, and that mere belief in the truth of the statement is not sufficient to constitute good faith, and is not ad- missible in mitigation. The same rule is laid down in Shanks v. Stumpf, 23 Misc. Rep. 264, 51 N. Y. Supp. 154, holding also that a mere general aver- ment of the truth of the libel does not amount to a defense either by way of justification or mitigation, unless in a case where a libel itself consists of a specific statement of facts, citing Wachter v. Quenzer, 29 N. Y. 547; McKane v. Brooklyn Citizen, 58 Hun, 132, 6 N. Y. Supp, 171; Kingsley v. Kingsley, 79 Hun, 569, 29 N. Y. Supp. 921; Lanpher v. Clark, 149 N. Y. 471. Evidence in mitigation extends only to punitive damages, and -has no bearing upon compensatory damages. Young v. Fox, 26 App. Div. 261, 49 N. Y. Supp. 634;Wuensch v. Morning Journal Assn., 4 App. Div. 110 (115), 38 N. Y. Supp. 605. Matter in mitigation operates only to prevent the recovery to ex- emplary damages, but is not effectual to reduce the amount of damages actually sustained. Hartman v. Morning Journal Assn., 46 St. Rep. 181, 19 N. Y. Supp. 398. While it may be shown in mitigation of damages that the libel- ‘ous paragraph was copied from a newspaper, and hence believed to be true, it may not be shown that other journals published the same statement simultaneously or subsequent to the publication -complained of, or that the alleged libel appeared in another news- paper from. which plaintiff has already recovered damages. Pal- mer v. Matthews, 162 N..Y. 100 (108), citing numerous author- ities. In Remsen v. Bryant, 24 Mise. Rep. 238, 52 N. Y. Supp. 515, ‘it is said that malice has nothing to do with the question whether -the plaintiff shall recover actual damages in actions of slander or libel, but only with the question as to whether “smart” money ‘shall be added. ‘The promulgation of rules issued by the defendant to his em- ‘ployees is not competent in mitigation of damages. O’Brien v. ‘Bennett, 59 App. Div. 623, 69 N. Y. Supp. 298; McMahon v. 728 LIBEL AND SLANDER. Art. 9. Defenses. Bennett, 31 App. Div. 16, 52 N. Y. Supp. 390; Morgan v. Bennett, 44 App. Div. 323, 60 N. Y. Supp. 619. It was said in Bisbey v. Shaw, 12 N. Y. 67, that by enabling defendant to place his defense of mitigation on the record, the technical objection of surprise is removed upon which that de- fense was formerly excluded and by the rule authorizing defend- ant to couple the defense of mitigation with justification, defend- ant is able to avail himself of either one or the other according to proof. ‘The language of the court in Klinck v. Colby, 46 N. Y. 427, ‘that “in an action for libel, where under an answer proper to the end, the defendant has shown that the communication was privi- leged, his further answer of justification of the truth of the charge, though without proof given to sustain it, may not be taken into consideration of evidence of malice, and in aggravation of dam- ages ” is considered and explained in Crutkshank v. Gordon, 118 ‘NN. Y. 178 (185), referring to Distin v. Rose, 69 N. Y. 122, the court holding per Follett, Ch. J., that the authorization of pleas ‘in mitigation is not a license for their interposition in bad faith and for the purpose of injuring the reputation of the plaintiff, and that when they are interposed for that purpose the fact may ‘be considered by the jury. These authorities were followed by Holmes v. Jones, 121 N. Y. 461, where a charge that if the plaintiff fail to establish the justi- fication set up in his answer, a jury could determine whether it ‘was set up in good or bad faith, and if they believe it was set up in bad faith, they could consider it in estimating damages, was ‘held to be no error upon the authority of the cases cited above. The rule as now laid down by the courts as to matter in miti- -gation is that it must be of such a nature as to show that defendant, though mistaken, believed the charge to be true when it was made. Thus permitting an inference that defendant was not actuated by malice. It must be connected with or bear upon the defamatory charge. Mattice v. Wilcox, 147 N. Y. 624 (634); Gray v. Brook- lyn Union Publish. Co., 35 Avv. Div. 286 (288), 55 N. Y. Supp. ‘85. The general character of the plaintiff may be shown in mitiga- tion of damages, but no mere reports or rumors, not amounting to .proof of general character, nor information obtained by the de- fendant from others as to the truth of the charge, unless accom- LIBEL AND SLANDER, 729 Art. 9. Defenses. panied by proof that such information is true, can be received for the purpose of rebutting the presumption of malice. Facts and circumstances which tend to disprove malice by showing that the defendant, though mistaken, believed the charge to be true when it was made, may be given in evidence in mitigation of damages. Hatfield v. Lasher, 81 N. Y. 246, citing Bush v. Prosser, 11 N. Y. 347; Bisbey v. Shaw, 12 N. Y. 67. It is said in Hatfield v. Lasher, supra, that it was formerly held that evidence was admissi-~ ble that there are reports abroad that the plaintiff was guilty of practices like those charged, but it is said that this is not the rule in this State. Citing Root v. King, 7 Cow. 629; Gilman v. Lowell, & Wend. 579. In Willover v. Hill, 72 N. Y. 36, it was held that evidence was admissible by defendant showing the repetition of what he had heard, but that it could only be given by showing that the reports were brought to the defendant’s attention before utterance of the slanderous words. It is not a legal excuse that a newspaper publishes defamatory matter accidentally or inadvertently or with good motives and in an honest belief of its truth. Moore v. Francis, 121 N. Y. 199. An answer setting up that the defendant made the publication at the request, and on the information, of third persons, was held to be not a mitigating circumstance in Hager v. Tibbitts, 2 Abb. Pr. (N. S.) 97. This case does not appear to have been subse~ quently cited. The same rule was held’ in Purple v. Horton, 13 Wend. 9, al-~ though it was held in Skinner v. Powers, 1 Wend. 451, that, where an article was the publication of rumors affecting plaintiff, de- fendant might show in mitigation that such rumors really existed. Where there is a partial justification, it is error to instruct the jury that the action is wholly undefended, since a partial justifica- tion may be considered in mitigation. Bennet v. Smith, 23 Hun, 50. That others had published the libel, which fact was unknown to the defendant when the publication complained of was made, or that actions had been commenced against others for the publication, is inadmissible in mitigation. Palmer v. Matthews, 162 N. Y. 100. Facts occurring after the publication of the libel are not com- petent in mitigation. Hatfield v. Lasher, 81 N. Y. 247, cited in 730 LIBEL AND SLANDER. Art. 9. Defenses. Grant v. Herald Co.; 42 App. Div. 354, 59 N. Y. Supp. 84; Wuensch v. Morning Journal Assn., 4 App. Div. 110, 38 N. Y. Supp. 605; Gray v. Brooklyn Umon ee Co., 35 App. Div. 286, 55 N. Y. Supp. 35. Only such matters are competent in mitigation of damages as are known to the defendant before or at the time of uttering the slanderous words. Lanpher v. Clark, 77 Hun, 506, 29 N. Y. Supp. 107. It may be shown in mitigation that the plaintiff had been im- provident in the discharge of his duties as administrator. Hart v. Sun Printing & Pub. Assn., 79 Hun, 358, 29 N. Y. Supp. 434. Or that the defendant’s barns were destroyed on a certain date by an incendiary fire, and that the plaintiff had a motive for burning the barns. Warner v. Southall, 31 App. Div. 376, 52 N. Y. Supp. 320. It seems that where an action for libel is commenced without any request from the plaintiff for a retraction of the charge, and the defendant thereafter publishes a fair and full retraction, this may be proved in mitigation of damages before the jury. But the mere offer to publish a retraction cannot be shown. Turton v. New York Recorder Co., 144 N. Y. 144. The defendant may show the receipt of communications of similar purport from third persons before uttering the slanderous words, which he believed to be true. Lally v. Emery, 79 Hun, 560, 29 N. Y. Supp. 888. In mitigation, defendant may show facts tending to establish truth of the charge. Putnam v. Press Pub. Co., 46 App. Div. 600, 62 N. Y. Supp. 110; Feeley v. Jones, 79 Hun, 18, 29 N. Y. Supp. 446; Roeber v. New Yorker Staats Zeitung, 1 App. Div. 427, 37 N. Y. Supp. 255, 2 App. Div. 163, 37 N. Y. Supp. 719; Lawson v. Morning Journal Assn., 32 App. Div.. 71, 52 N. Y. Supp. 484. Publication with good motive may be alleged by way. of miti- gation. Jeffrasv. McKillop & Sprague, 2 Hun, 351, 4 8. O. 578. That words were spoken in the heat of passion, not intended to be slanderous in meaning, may be considered in mitigation. Court- ney v. Mannheim, 39 St. Rep. 125, 14 N. Y. Supp. 929. Plea in mitigation, and the evidence which may be given in mitigation of damages, are considered more fully under the heads of “ Pleading ” and “ Evidence,” respectively. LIBEL AND SLANDER. 731 Art. 9. Defenses. SUBDIVISION 3. Privileged Communications. PAGE. Section 1. Privilege defined and classified ..... ees 731 2. Absolute privilege ........... 2.0 eee ee ee eee 738 3. Qualified privilege ............. 02. e ee eee . 746 § 1. Privilege defined and classified — In some cases the occa- sion of a publication which would be otherwise libelous or slander- ous is, by reason of convenience and in the interests of society, ex- cusable, and, therefore, termed a privileged communication. Such an occasion rebuts the inference of malice ordinarily arising from a statement prejudicial to the character of plaintiff, and places on plaintiff the burden of showing that the publication was mali- cious. To entitle a communication to be privileged, it must be made in good faith upon a subject in which the party now has an interest, or believes he had an interest. It is a defense to an action for libel or slander to prove that the circumstances under which the defamatory words were published were such as to entitle the defendant to state what he honestly believes, and, even though the statement may be proved or admitted to be false, still its pub- lication does not afford ground for acting by reason of its being privileged. In many cases there must be a legal immunity for free speaking, unjust would it seem were it otherwise, and that that duty offers a responsibility to speak openly and fearlessly. The reasons for giving a person protection are, however, not the same in all cases. In some they are termed “ absolute,” or “ conclu- sive,” and in others the privilege is a conditional one, and they have been thus specified by the authorities, although, in the cases classified as “absolute privilege,” there are limitations which would seem to render the use of the term “absolute” in most cases relative in contradistinction to “ conditional” privilege, rather than to denote the absolute right on the part of the person to speak or write as he deems fit and proper. Newell, 389; Odgers, 181; 18 Am. & Eng. Encye. of Law, 1023; Cooley on Torts, 210. The doctrine of privileged communications is only a special example of a great law of privilege pertaining to human affairs 732 LIBEL AND SLANDER. Art. 9. Defenses. generally, to wit, the right to inflict harm upon another in just so far as may reasonably be deemed necessary for one’s own protec- tion, or for the protection of another, where that is proper. So far others must yield, or the vindication of rights in many cases would be an empty name; but further no one is required to give way. Bigelow on Torts, 164, 165. A privileged communication is one made in good faith upon any subject-matter in which the party communicating has an in- terest, or in reference to which he has, or honestly believes he has, a duty to the person having a corresponding interest or duty, and which contains matter which, without the occasion upon which it is made, would be defamatory and actionable. In other words, the occasion on which the communication was made rebuts the infer- ence of malice ‘prima facie arising from a statement prejudicial to the character of the plaintiff, and puts upon the plaintiff the burden of proving actual malice. Newell, 388, citing Flood, 208. In certain cases, even though the matter complained of is de- famatory, in the interests of public policy no liability attaches to the publication thereof; in other words, the occasion is privileged. Fraser, 99. Although the theory of the law seems to rest entirely upon na- tural presumption of intention, it is pretty clear that, in determin- ing the limits of privilege, the courts have been almost wholly guided by considerations of public or general expediency. Ency- clopedia Britannica, 505. Malice in relation to a privileged occasion is defined in Royal Aquarium Soc. v. Parkinson (1892), 1 Q. B. 434, as follows: “The question is whether the defendant is using the occasion hon- estly or abusing it. If a person, on such an occasion, states what he knows to ibe untrue, no one ever doubted he would be abusing the occasion.” Again, the occasion must be made use of bona fide and without malice; he is not entitled to the protection of the privilege if he uses the occasion for some indirect or wrong motive, The description of cases recognized as privileged communica- tions must be understood as exceptions to the general rule, by which, in case of a libelous publication, the law implies malice and infers some damage, as being founded upon some apparently recog- nized obligation or motive, legal, social, or moral, which may fairly be presumed to have led to the publication, and, therefore, prima facie relieves it from that just implication from which the general LIBEL AND SLANDER. 733. Art. 9. Defenses. law is deduced. White v. Nichols, 3 How. (U. 8S.) 266 (291),. cited Byam v. Collins, 111 N. Y. 148 (150). The language of Lord Campbell, in Harrison v. Bush, 5 Ellis & BL, 2 B. 344 cited in Van Wyck v. Aspinwall, 17 N. Y. 193, and again in Byam v. Collins, 111 N. Y. 150, opinion Earl, J., defines a class of privilege as follows: “A communication se bona fide upon any subject-matter in which the party communi- cating has an interest, or in reference to which he has a duty, is; privileged if made to a person having a corresponding interest or duty, although it contained incriminating matter which, without this privilege, would be slanderous and actionable, and this thougls the duty be not a legal one, but only a moral or social duty of im- perfect obligation.” Judge Ear! adds that this statement has been generally approved by judges and text-writers since, and further cites Toogood v. Spyring, 1 Cr., M. & R. Exch. 181, where it was said that the law considered a libelous “ publication as malicious unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interests are concerned.” Adding that this statement of the rule was approved by Folger, J., in Klinch v. Colby, 46 N. Y. 427, and Hamilton v. Eno, 81 N. Y. 116. ‘A privileged communication is defined by the Penal Code as follows: “8 953. Privileged communications.— A communication made to a person entitled to, or interested in, the communication, by one who was also interested in or entitled to make it, or who stood in such a relation to the former as to afford a reasonable ground for supposing his motive innocent, is presumed not to be malicious, and is called a privileged communication.” A privileged communication may be defined to be a statement or charge defamatory to the character of another, but made under such circumstances as to rebut a legal inference of malice. Hem- mens v. Nelson, 188 N. Y. 517 (529). The distinction between a privileged communication and an- other is pointed out in Buddington v. Davis, 6 How. Pr. 401, where it is said that the difference consists in the proof necessary to sustain the action; that, when the communication is not privi- leged, malice will be inferred from the character of the imputa- tion, but when the communication is privileged good faith must 734 — LIBEL AND SLANDER. Art. 9. Defenses. be shown and the plaintiff must show that the defendant, when making it, was governed by bad motives. Privileged communications are protected from the presumption of malice usually to be inferred. When it appears that the party had just occasion for speaking the words deemed slanderous, malice is not to be presumed, and additional evidence is necessary to establish the charge. Presumption of malice being rebutted by the privilege, plaintiff must show that defendant was influenced by motives other than the mere discharge of duty, and evidence that the statement was false is not sufficient to raise the presump- tion of malice. Ormsbee v. Douglas, 37 N. Y. 477, citing Howard v. Thompson, 21 Wend. 319. It is a well-settled rule that, where the defamatory statement or charge is shown to have been privileged, the burden of showing actual malice is cast upon the plaintiff, and such burden is not met by simply showing that the charge was false. Stevenson v. Ward, 48 App. Div. 291, 62 N. Y. Supp. 717, citing McCarty v. Lambley, 20 App. Div. 264, 46 N. Y. Supp. 792; Hemmens v. Nelson, 188 N. Y. 517. The malice required to deprive a communication of the pro- tection arising out of the occasion of the publication must be such as to induce the court, or any reasonable person, to draw the infer- ence that the occasion has been taken advantage of to give utter- ance to an unfounded charge. Townshend on Slander and Libel, 821, citing Manby v. Witt, 18 C. B. 544. The term “ privileged,” as applied to a communication alleged to be libelous, means simply that the circumstances under which it was made were such as to repel the legal inference of malice, and to throw upon the plaintiff the burden of offering some evi- dence of its existence beyond the mere falsity of the charge. “When a communication is made, in confidence, either by or to a person interested in the communication, supposing it to be true, or by way of admonition or advice, it seems to be-a general rule that malice (1. e., express malice) is essential to the maintenance of the action” (1 Starkie on Slander, 321). ‘“ But, whatever may be the true doctrine on this subject, there is no doubt that, where the communication is made bona fide, in answer to inquiries from one having an interest in the information sought, or where the relation between the parties by whom and to whom the communi- cation is made is such as to render it reasonable and proper that LIBEL AND SLANDER. 7385 Art. 9. Defenses. the information should be given, it will be regarded as »rivileged. All that is necessary to entitle such communications to be regarded as privileged is that the relation of the parties be such as to afford reasonable ground for supposing an innocent motive for giving the information, and to deprive the act of an appearance of offi- cious intermeddling with the affairs of others.” Lewis v. Herrick & Chapman, 16 N. Y. 878, 874, 375. “ To this class of cases belong complaints preferred in the proper quarter against public officers; statements in regard to the char- acter of a servant, given by a master upon inquiry; confidential communications upon matters of business, between parties having a mutual interest; statements made in the discharge of a public or official duty, and other publications of a similar nature. The occasion of the speech or writing, and the position of the person by whom it is uttered, in these instances, repel the presumption or inference of malice, which the law justly and wisely attaches to a false and injurious accusation where it is gratuitously made. ‘But the party injured may nevertheless prove, if he is able to do so, that the charge which has been published, even upon such an occasion, was not only false in fact, but malicious in motive. If he can establish express malice, he may recover as in other cases, notwithstanding the conditional privilege. (See Thorn v. Blanch- ard, 5 Johns. 508; O’Donaghue v. McGovern, 23 Wend. 26; Van- derzee v. McGregor, 12 Wend. 545; Somerville v. Hawkins, 3 Eng. L. & Eq. 503; Harrison v. Bush, 82 Eng. L. & Eq. 173; Van Wyck v. Aspinwall, 17 N. Y. 190; Lewis v. Chapman, 16 N. Y. 369.)” Perkins v. Mitchell, 31 Barb. 467. The question of privilege is for the court, as to whether there was a malice is for the jury. Newell 391; Fraser, 101, citing Pullman v. Hill (1891), 4 Q. B. 529. The question as to when a defamatory article is privileged is in the first instance one of law. If the court holds a communica- tion privileged, the question of the good faith in its publication, of actual malice, as distinguished from that which is presumed from a defamatory publication, and also belief in the truth of the statement, are all matters for the consideration of the jury. The court is to first judge as to the claim of a privileged commu- nication and the question is whether the circumstances were such as to repel the legal inference of malice, and throw upon the plain- tiff the burden of offering evidence of its existence beyond the 136 LIBEL AND SLANDER. Art. 9. Defenses. mere falsity of the charge. Mattice v. Wilcox, 147 N. Y. 624 (636), citing Klinck v. Colby, 46 N. Y. 427; Hamilton v. Eno, $1 N. Y. 116; Lewis v. Chapman, 16 N. Y. 369. Whether a libelous communication is privileged is a question of law, and when held as matter of law to be privileged, the burden rests upon the plaintiff to establish as matter of fact that it was maliciously made; this matter of fact is for the determination of the jury. Byam v. Collins, 111 N. Y. 150. Whether a communication is privileged is a question of law for the court. Hart v. Sun Print. & Publish. Assn., 79 Hun, 358, 29 N. Y. Supp. 434; Lovell Co. v. Houghton, 116 N. Y. 520. When a communication is shown to be privileged the presump- tion is that it was made in good faith, the falsity of the charge and malice must be shown in order to maintain the action. Ques- tion of actual malice is for the jury. Lathrop v. Hyde, 25 Wend. 448; Clapp v. Devlin, 3 J. & S. 170; Liddle v. Hodges, 2 Bosw. 537; Decker v. Gaylord, 35 Hun, 584; Fowles v. Bowen, 30 N. Y. 20; Ormsbee v. Douglas, 37 N. Y. 477. Privileged communications are classified in White v. Nicholls, 3 How. (U. 8.) 266 (286), as follows: Whenever the author and publisher of the alleged slander acted in the bona fide dis- charge of a public or private duty, legal or moral; or in the prose- cution of his own rights or interests. For example, words spoken in confidence and friendship, as a caution; or a letter written confidentially to persons who employed as a solicitor, conveying charges injurious to his professional character in the management of certain concerns which they had intrusted to him, and in which the writer of the letter was also interested. 2. Anything said or written by a master in giving the character of a servant who has been in his employment. 3. Words used in the course of a legal or judicial proceeding, however hard they may bear upon the party of whom they are used. 4. Publications duly made in the ordinary mode of parliamentary proceeding, as a petition printed and delivered to the members of a committee appointed by the House of Commons to hear and examine grievances.” It is said in Perkins v. Mitchell, 31 Barb. 461: “The au- thorities both in England and in the courts of this State clearly recognize two classes of privileged communications.” The dis- tinction is also recognized, although not distinctly stated in How- LIBEL AND SLANDER. 737 Art. 9. Defenses. ard v. Thompson, 21 Wend. 319; O’Donaghue v. McGovern, 23 Wend. 26. There are two classes of privileged communications: (1) Those which are absolutely privileged, and for the publication of which an action cannot be maintained, no matter what the motive of the author may be. Within this class are accurate publications of the proceedings of courts of record and legislative bodies, the statements of judges, witnesses, and jurors made on trials in courts of record. (2) Communications which are prima facie privileged. Among this class are statements necessary to protect one’s private interests, and statements of one having an interest in the subject-matter of the communication made to another hav- ing an interest in the same matter. Prima facie privileged com- munications are subdivided into two kinds: (1) Those which relate to matters of public interest, and (2) those which relate to purely private interests. Hill v. Durham House-Drainage Co., 79 Hun, 335, 29 N. Y. Supp. 427. Chancellor Walworth, in Hastings v. Lusk, 22 Wend. 410, recognizes and points out two classes of privileged communica- tions, citing numerous authorities, stating that in the one class of absolute privilege only words spoken by members of legislative bodies in discharge of their official duties, complaints made to grand jurors and magistrates, privilege of counsel in advocating the causes of their clients and parties conducting their own cases, where they confine themselves to what was relevant and pertinent to the question before the court; and in the other class, where the law does not impute malice to defendant from the mere fact of his having spoken the words, but plaintiff may be able to sustain the action if he can satisfy the jury there was actual malice, con- forming substantially, so far as the discussion goes, to the class of cases laid down by the text-writers. Privileged communications are those absolutely privileged and prima facie privileged. The first imports that the privilege can- not be overturned by evidence that the publication was made with malice; prima facie privilege that the privilege may be overturned by such evidence. Bigelow, 165. Townshend on Slander, §§ 120-208, calls attention to the fact that in text-books and reports there is much discussion as to privileged communications, and accepts the division into those absolutely privileged and conditionally privileged, giving 47 738 LIBEL AND SLANDER. Art. 9. Defenses. ? as the definition of the privileged “ publication,” which term he prefers to “communication,” “one when the occasion really or apparently furnishes a legal excuse therefor.” Privileged communications are diyided by text-writers as mat- ter of convenience into two classes; first, those classified under the term “absolute privilege,” said to be founded on public policy and to be confined within narrow limits based upon the ground “that it is advantageous for the public interest that persons should not in any way be fettered in their statements.” Second, the class known as “ qualified privilege.” In this class of cases privilege is not absolute but qualified only, and a recovery may be had in spite of the privilege, if plaintiff is able to show that the words were used not in good faith, but that the defendant availed himself of the occasion willfully to defame the plaintiff. There is no presumption of malice in such cases, but the defend- ant is responsible if both falsehood and malice appear affirma- tively. Odgers, 181; Newell, 389; 18 Encyc. of Law, 1029; Cooley, 211. § 2. Absolute privilege— Townshend (§ 209) says, that by an absolutely privileged communication is not to be understood a publication for which the publisher is in no wise responsible, since there are, as will appear upon examination of the authorities, cer- tain restrictions upon the right to speak or print as to all classes referred to except possibly legislative privilege. Bigelow (p. 167) says, the law upon the subject of absolute privilege may be thus in substance generalized: That no action for slander or libel can be maintained against a person acting in a judicial capacity, nor against suitors, prosecutors, witnesses, counsel, or jurors for anything said or done relevant to the matter in hand, in the course of a judicial proceeding before such tri- bunal, however false and malicious it may be. ‘Citing Starkie on Libel and Slander, 184; Munster v. Lamb, 11 Q. B. 588, and cases cited. In Perkins v. Mitchell, 31 Barb. 461 (468), cases of absolute privilege are referred to as “ Words spoken or written in the due course of parliamentary or judicial proceedings.” In some cases the privilege which the law gives to persons in such circumstances, to speak freely, is absolute, however malicious the intent or false the charge may be. This immunity applied LIBEL AND SLANDER. 739 Art. 9. Defenses. to words defamatory of the character of another spoken by a member of a legislative body in debate or in due course of pro- ceedings, by counsel in arguments pertinent to the issue before the courts of justice, by military officers in reports or statements to their superiors and all acts of State. From considerations of public policy and to secure the unembarrassed and efficient admin- istration of justice and public affairs, the law denies to the de- famed party any remedy through an action for libel or slander in such cases. Hastings v. Lusk, 22 Wend. 410; Moore v. M. N. Bank, 123 N. Y. 420; Hemmens v. Nelson, 188 N. Y. 523. (A.) Members of legislature, public officers— No member of either house of Parliament is in any way responsible in a court of justice for anything said in the House. Bill of Rights, 1 Wm. & Mary, S. T. 2, ¢. 2. Or if a member publishes a speech delivered in the House he is not liable as any private individual would be. Rex v. Lord Ab- bugton, 1 Esp. 226. By the Constitution of the United States senators and represen- tatives shall not be questioned in any other place for any speech or debate in either House. Article 3, section 12, Constitution of the State of New York, provides: “ For any speech or debate in either house of the leg- islature the members shall not be questioned in any other place.” Cooley (p. 214), commenting upon these provisions in the Ameri- can Constitution, says that this exemption exists independent of such a declaration as a necessary principle in free government, and has been recognized ever since the case of the six members, whom an attempt was made to arrest and punish for their action in Parliament in the time of Charles the First. The leading case in this country as to privilege of legislators is Coffin v. Coffin, 4 Mass. 1, 8 Am. Dec. 189, where it was held that a representative is not answerable in an action for a defama- tion, where the words charged were uttered in the execution of his official duty, although they were spoken maliciously; or where they were not uttered in the execution of his official duty if they are not spoken maliciously with the intent to defame the character of any person. But held that a representative is holden to an- swer for defamatory words spoken maliciously, not in discharging the functions of his office; and that a representative has no right 740 LIBEL AND SLANDER. Art. 9. Defenses. to utter a malicious slander to another member even in the repre- sentatives’ chamber, not in the execution of his official duties, that to extend the privilege thus far is inconsistent with sound policy. The following authorities are also cited to this point: State v. Burnham, 9 N. H. 34; Perkins v. Mitchell, 31 Barb, 461; McGaw v. Hamilton, 184 Pa. St. 108; Dunham v. Powers, 42 Vt. 1. The head of a department “cannot be held liable to a civil suit for damages on account of official communications made by him pursuant to an act of Congress, and in respect to matters within his authority, by reason of any personal motive that might be alleged to have prompted his action; for, personal mo- tives cannot be imputed to duly authorized official conduct. In exercising the functions of his office, the head of an executive department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages.” Spaulding v. Vilas, 161 U. S. 498. (B.) Communications in the course of judicial proceedings are privileged. The English rule, as laid down by Odgers (p. 141), is that no action will lie for defamatory statements in the course of a judi- cial proceeding if the court have jurisdiction. That everything said by a judge, a witness, or counsel is absolutely privileged, so long as it is connected with the inquiry, and substantially the same rule prevails in this country. The condition of the privilege being that the statements must be made in the course of an action and must be pertinent and material to the case. It is said in Hoar v. Wood, 3 Mete. 193, that it is well settled that “ words spoken in the course of judicial proceedings though they are such as to impute crime to another and, if spoken elsewhere, would import malice and be actionable in themselves, are not actionable if they are pertinent to the subject of the inquiry.” But it is further held that the privilege must be restrained and “that the party or counsel shall not avail himself of his situation to gratify private malice by uttering slanderous expressions, either against a party, witness, or third person which have no relation to the cause or subject-matter of the inquiry.” Words unnecessarily used in a judicial proceeding cannot sub- ject a party to an action, but if things that are injurious and LIBEL AND SLANDER. 741 Art. 9. Defenses. foreign to the cause be stated, party is liable. “ For the cover of a judicial procedure cannot protect him, since the design of injuring is evident.” Borthwick on Libel, 215, note; Townshend on Slander, 332. Judge Lord, in delivering the opinion of the court in Jfc- Laughlin v. Cowley, 127 Alass. 316, said: ‘“ It was stated in the opinion of this court in the recent case of Rice v. Collidge, 121 Mass. 393, that it seems to be settled by the English authorities that judges, counsel, parties, and witnesses are absolutely ex- empted from liability to an action for defamatory words pub- lished in the course of judicial proceedings; and that the same doctrine is generally held in the American courts, with the quali- fication, as to parties, counsel, and witnesses, that their statements made in the course of an action must be pertinent and material to the case. The doctrine thus qualified was set forth by Shaw, Ch. J., in an elaborate opinion, in Hoar v. Wood, 3 Mete. 193. The qualification of the English rule is adopted in order that the protection given to individuals in the interest of an efficient admin- istration of justice may not be abused as a cloak from beneath which to gratify private malice.” It will be observed that the absolute privilege of a judge appears never to have been limited. In Aylesworth v. St. John, 25 Hun, 156, a communication in a justice’s return charging the defendant with having slipped a bogus answer among the justice’s papers was held to be privi- leged if it was material or pertinent or was in good faith believed to be so, irrespective of motive. In the case of judicial proceedings, words spoken or written by a party, by counsel, by a judge, a juror, or a witness, although false, defamatory and malicious, are not actionable if they were uttered in the due course of the proceeding in the discharge of a duty, or the prosecution or defense of a right, and were pertinent and material to the matter in hand. It is unquestionable that a person who institutes a groundless proceeding, whether civil or criminal, against another, upon false or defamatory charges, is liable to an action for the injury he occasions. But that the action must be for the malicious complaint, indictment, or action, and not for the words. Cowen, J., in O’Donaghue v. McGovern, 23 Wend. 26; Starkie on Slander, 1938. Words spoken or written in a legal proceeding pertinent and material to the controversy are privileged, and the truth of the statement cannot be drawn in question in an action for slander 742 LIBEL AND SLANDER. Art. 9. Defenses. or libel, and where the statement is privileged it is unnecessary for the defendant to deny the allegation of malice. Garr v. Sel- don, 4 N. Y. 91. The subject is discussed in White v. Carroll, 42 N. Y. 16, and relates to conditional privilege on the part of a witness, and the rule is there laid down that in that case it was a question for the jury to determine whether the witness testified in good faith, or in the belief that his answers were pertinent and relevant; if so, it was privileged. But, on the other hand, if they believe that the defendant, though testifying as a witness and entitled to the pro- tection of the law, was actuated by malice and used the words for the mere purpose of defaming the witness, then the communica- tion was not privileged. This case is commented upon in Marsh v. Ellsworth, 50 N. Y. 309, at 318, and attention is called to the fact that the question put to the defendant, as a witness in White v. Carroll, was not material and pertinent to the inquiry. It is said that, had the evidence in that case proved that the answer was material and pertinent, the court must have held it privi- leged, irrespective of the defendant’s belief upon the subject. “Tn questions falling within the absolute privilege, the ques- tion of malice has no place. However malicious the intent, or however false the charge may have been, the law, from considera- tions of public policy, and to secure the unembarrassed and effi- cient administration of justice, denies to the defamed party any remedy through an action for libel or slander. This privilege, however, is not a license which protects every slanderous publica- tion or statement made in the course of judicial proceedings. It extends only to such matters as are relevant or material to the litigation, or at least it does not protect slanderous publications plainly irrelevant and impertinent, voluntarily made, and which the party making them could not reasonably have supposed to be relevant. (Ring v. Wheeler, 7 Cow. 725; Hastings v. Lusk, 22 Wend. 410; Gilbert v. People, 1 Den. 41; Grover, J., Marsh v. Ellsworth, 50 N. Y. 309; Rice v. Coolidge, 121 Mass. 393; Mc- Laughlin v. Cowley, 127 Mass. 316.)” Moore v. The Manufac- turers’ Nat. Bank of Troy et al., 123 N. Y. 420 (426). In Youmans v. Smith, 153 N. Y. 214 (219), Vann, J., says: “The law governing the privilege of parties and their counsel, so far as applicable to the case in hand, was well stated by Judge Grover in Marsh v. Ellsworth, 50 N. Y. 309, 311, as follows: LIBEL AND SLANDER. 743 Art. 9. Defenses. ‘A counsel, or party conducting judicial proceedings, is privileged in respect to words or writings used in the course of such proceed- ings reflecting injuriously upon others, when such words and writings are material and pertinent to the questions involved: * * * within such limit, the protection is complete, irre- spective of the motive with which they are used; but such privi- lege does not extend to matter having no materiality or pertinency to such questions.’ (Gilbert v. People, 1 Den. 41; Hastings v. Lusk, 22 Wend. 410; Ring v. Wheeler, 7 Cow. 725.) In applying this principle the courts are liberal, even to the extent of declaring that, where matter is put forth by counsel in the course of a judi- cial proceeding that may possibly be pertinent, they will not so regard it as to deprive its author of his privilege, because the due administration of justice requires that the rights of clients should not be imperiled by subjecting their legal advisers to the constant fear of suits for libel or slander. (Hastings v. Lusk, supra; War- ner v. Paine, 2 Sandf. 195, 201; Brook v. Montague, Cro. Jac. 90; Hodgson v. Scarlett, 1 B. & Ald. 232; Missouri Pac. R. R. Co. v. Richmond, 4 L. R. A. 280, note; Cooke’s Law of Defama- tion, 63.) Any other rule would be an impediment to justice, because it would hamper the search for truth and prevent making inquiries with that freedom and boldness which the welfare of society requires. If counsel, through an excess of zeal to serve their clients, or in order to gratify their own vindictive feelings, go beyond the bounds of reason, and by main force bring into a lawsuit matters so obviously impertinent as not to admit of dis- cussion, and so needlessly defamatory as to warrant the inference of express malice, they lose their privilege and must take the con- sequences. In other words, if the privilege is abused, protection is withdrawn.” Words uttered by counsel on the trial are not privileged if not pertinent to the proceeding, but if pertinent they are privileged, no matter how false and malicious they may be. Ring v. Wheeler, 7 Cow. 725; Hastings v. Lusk, 22 Wend. 410. A party trying his own action has the same privilege as an attor- ney. Allen v. Crofoot, 5 Wend. 506, If the fact alleged in a judicial proceeding is material and per- tinent, the party setting it up does not lose his privilege by having employed harsh language. Warner v. Paine, 2 Sandf. 195. If words used in the course of judicial proceedings, reflecting 744 LIBEL AND SLANDER. Art. 9. Defenses. upon others, are not pertinent and material, party using them is liable. Where a party or an attorney goes out of the way to asperse and villify another by words or writing not material or pertinent. to the controversy, he is without protection. Gilbert v. People, 1 Den. 41. Until it is shown that the defendant has acted with express malice, and was using judicial forms in bad faith for the purpose of assailing plaintiff’s character, presumption must be extended that the pleading was a privileged communication. Dadda v. Piper, 41 Hun, 254. In Link v. Moore, 84 Hun, 118, 32 N. Y. Supp. 461, it is held that, the allegations contained in pleadings relevant and material, although false, are absolutely privileged. Affirmed 156 N. Y. 661. Libelous charges contained in an attorney’s brief on appeal are, if pertinent to the issue, absolutely privileged, and the question whether such allegations were pertinent to the issue is for the court to determine. Sickles v. Kling, 60 App. Div. 515, 69 N. Y. Supp. 944. As io like rule in bill of particulars signed by a party and an attorney, see Perzel v. Towsey, 52 N. Y. Super. 79; Prescott v. Towsey, 53 N. Y. Super. 56. Statements contained in a notice of pendency of action, perti- nent to the description of the claim asserted, are privileged. Smith v. Smith, 26 Hun, 573. Matters stated in an affidavit pertinent to the litigation are privileged. Garr v. Seldon, 4 N. Y. 91. An action cannot be maintained for an assertion of insanity contained in an affidavit made in a proceeding properly and legally instituted. The privilege extends to affidavits, although volun- tarily made, if regular and pertinent. Perkins v. Mitchell, 31 Barb. 461. In an affidavit used in opposing application to mitigate bail, it was held that it was a good defense that defendant used the affi- davit for that purpose, and that he had a reasonable and probable cause for believing, and did at the time believe, that it was true. Suydam v. Moffatt, 1 Sandf. 459. Where no ground appears upon the face of the publication upon which to base a claim that the libelous charge was relevant or ma- terial, it may not be assumed, and the burden of showing their relevancy rests upon the party making them. ‘re CT TBEL AND SLANDER. ‘ 745. . Art. 9. Defenses. It seems, however, no strained or close construction will be in- dulged in to exempt a case from the protection of privilege. Moore v. Manufacturers’ Nat. Bank, 123 N. Y. 420, 421. On subsequent appeal (136 N. Y. 666) judgment was affirmed on authority of opinion supra. The fact that the party makes an affidavit without requiring the party requesting it to take proceedings to have his deposition taken does not affect his privilege. Beggs v. McCrea, 62 App. Div. 39, 70 N. Y. Supp. 864. In Aylesworth v. St. John, 25 Hun, 157, it is held that a wit- ness is privileged if the alleged words are material and pertinent, irrespective of motive, and further that, if the person who utters the language believes it in good faith to be pertinent and mate- rial, then it is privileged, although he was examined as to its per- tinency and materiality, and that it is a question for the jury whether he so believed. A person testifying, either voluntarily or under process, to mat- ters pertinent and material in a proceeding before a magistrate, is entitled to protection for words uttered. Perkins v. Mitchell, 31 Barb. 461. In McCabe v. Cauldwell, 18 Abb. Pr. 377, it is held that the pro- ceedings before a grand jury are not proceedings before a judicial body so as to be protected by stattite. Testimony by a witness that the plaintiff had been bribed by contractors, when given before a common council, against plain- tiff, the city engineer, was held to be absolutely privileged, whether true or false, and whether uttered maliciously or not. McLaugh- lin v. Charles, 60 Hun, 239, 14 N. Y. Supp. 608. While questions of good faith or belief in the truth of the state- ment, or of actual malice, are for the jury, they cannot arise in connection with the privilege of an attorney in his conduct in a legal proceeding, since, if the privilege is established in such case, the action fails; and, in the determination of the question of the attorney’s privilege, it is for the court to decide whether the thing was material and pertinent, or whether the counsel were beyond the bounds of reason, and brought into the case matter obviously impertinent. Sickles v. Kling, 60 App. Div. 515, 69 N. Y. Supp. 944,10 N. Y. Annot. Cas. 68. In the latter report a very full note is given upon “ privilege of attorney as to libel and slander,” lay- ing down the rule that words or writings used by counsel, in the 746 LIBEL AND SLANDER. Art. 9. Defenses. course of judicial proceedings, are absolutely privileged when material and pertinent to the questions involved. Citing Youmans v. Smith, 153 N. Y. 214, and that the like rule applies to plead- ings, affidavits, and other papers in the action, citing Link v. Moore, 84 Hun, 118, 32 N. Y. Supp. 461, affirmed on opinion below 156 N. Y. 661, subject, however, to the rule that, where an attorney goes out of his way to villify another by words or writings not material or pertinent to the controversy, he loses his protection. Citing Gilbert v. People, 1 Den. 41; Ring v. Wheeler, 7 Cow. 725. Where defendant, at the request of the attorney retained to make application for the removal of plaintiff as testamentary trustee, made affidavit with respect to qualifications of plaintiff for such office, the statements made therein were privileged, and defendant was not liable therefor in an action for libel. The fact that the affidavit was voluntarily made, without requiring the party re- questing it to take proceedings to have his deposition taken, does not render it less privileged, or have any effect upon the relevancy. Beggs v. McCrea, 62 App. Div. 39, 70 N. Y. Supp. 864. Privilege extends only* to statements which are material and not to imputations voluntarily made which are plainly irrelevant and impertinent. Moore v. Manufacturers’ Nat. Bank, 123 N. Y. 420. § 3. Qualified privilege— (A) Qualified privilege in general. In cases other than those referred to, in which statements are abso- lutely privileged, qualified privilege exists where a party may re- cover damages notwithstanding the communication was privileged, if he can show the words were not used in good faith, but that the party availed himself of the occasion willfully and knowingly for the purpose of defaming the plaintiff. Newell (p. 475) divides conditional privilege into three classes: (1) Where there is duty incumbent upon defendant to make a communication to another person in the bona fide performance of his duty. (2) Where both the defendant and the person to whom he makes the communica- tion have a corresponding interest in the subject-matter. (3) Re ports of proceedings of courts of justice and legislative bodies. Fraser (p. 99) defines occasions of qualified privilege as those in which no action lies where the statement is made bona fide and in a manner not exceeding what is reasonably necessary for LIBEL AND SLANDER. (47 Art. 9. Defenses. the occasion. But proof -of actual malice will rebut the prima facie protection afforded by such an action and it is for the plain- tiff to prove that the defendant acted in bad faith, not for the de- fendant to prove that he acted in good faith. Cooley (p. 215) says that the cases only conditionally priv- ileged are those in which the utterance or publication is on a law- ful occasion which fully protects it, unless the occasion has been abused to gratify malice or ill-will, and that no action will lie for false statements contained in such a communication unless it be shown that it was both false and malicious, instancing a pe- tition to the executive, and citing Thorn v. Blanchard, 5 Johns. 508; Vanderzee v. McGregor, 12 Wend. 545; Streety v. Wood, 15 Barb. 105; and further, that all official communications made by an officer in the discharge of a public duty are so protected. Citing Harwood v. Keech, 4 Hun, 389; Decker v. Gaylord, 35 Hun, 584; Perkins v. Mitchell, 31 Barb. 461. Bishop (§ 304) says that the circumstances which make an occasion of this character privileged are diverse and innumerable, and cites from Joannes v. Bennett, 5 Allen, 169, a paragraph taken from Harrison v. Busch, 5 El. & Bl. 344; a rule which he cites is recognized in Gasset v. Gilbert, 6 Gray, 94, as follows: “A com- munication made bona fide upon any subject-matter, in which the party communicating has an interest, or in reference to which he has a duty to perform, is privileged if made to a person having a corresponding interest or duty, although it contains defamatory matter, which without such privilege would be libelous and ac- tionable. In the principal case, Bigelow, Ch. J., said of this definition: “It would be difficult to state the result of judicial decisions on this subject and of the principles on which they rest in a more concise, accurate, and intelligent form.” Bartlett, J., in Byam v. Collins, 39 Hun, 204, says that the privilege is afforded by the ties of consanguinity or kindred, may arise out of other or various relations of interest, or which suggest duty to furnish in- formation in respect to the conduct and character of another. Where both the communication and the occasion for it are privileged, the defendant is protected if he had probable cause and acted without malice. The defendant may show when and by whom he had learned the facts stated, and may testify whether or not he believed the statements made to him, provided they were made before the uttering of the alleged slander. Lally v. 748 LIBEL AND SLANDER. Art. 9. Defenses. Emery, 79 Hun, 560, 29 N. Y. Supp. 888, affirmed 151 N. Y. 653. Where the communication is prima facie privileged, malice in making the publication must be shown to authorize a recovery. There are two questions involved in the issue, whether a communi- cation is prima jacie privileged, namely, was the occasion on which it was made privileged, and did the communication go beyond what the occasion justified, or did it exceed the privilege. Hill v. Durham House Drainage Co., 79 Hun, 335, 29 N. Y. Supp. 427. Where in an action for slander the defamatory statement or charge is shown to have been privileged, and the burden of show- ing actual malice is cast upon the plaintiff, simply showing that the charge was false is not sufficient to authorize the submission of the question to the jury. Hemmens v. Nelson, 188 N. Y. 517. (b) When there is duty to make communication.—When a com= munication is made in the discharge of some public or private duty, the occasion prevents the inference of malice which the law draws from unauthorized communication and affords a qualified defense depending upon the absence of malice. Fowles v. Bowen, 80 N. Y. 20; Sunderlin v. Bradstreet, 46 N. Y. 188 (198). A communication made without malice upon any subject in reference to which the party communicating has a duty is privi- leged, if made to a party having a corresponding duty. Halstead v. Nelson, 24 Hun, 395, 188 N. Y. 517. A letter written voluntarily by a married woman to a female friend with whom she had been intimately acquainted, containing derogatory statements concerning plaintiff, with whom the latter was contemplating marriage, the sender being in no way related to the person written to, and under no duty to make the communi- cation, held not privileged. Byam v. Collins, 111 N. Y. 148. Where an employee of a mercantile house has informed its manager that another employee has stolen property of the firm, the subsequent statements of the manager, spoken in the presence of others and to the accused, charging him with the theft, are prima facie slanderous, but are, in view of the confidential rela- tion of the parties and the duty of the manager to his employer, regarded as privileged, and the burden is upon the plaintiff of showing express malice to maintain the action. McCarty v. Lam- bley, 20 App. Div. 264, 46 N. Y. Supp. 792. LIBEL AND SLANDER. 749 Art. 9. Defenses. A communication by a corporation, such as is required by its by-laws is privileged and affords the members complaining no ground for the action. Reynolds v. Plumbers’ Material Protective Assn., 30 Mise. Rep. 709, 63 N. Y. Supp. 308, citing Lewis v. Chapman, 16 N. Y. 369; Sunderlin v. Bradstreet, 46 N. Y. 188; Byam v. Collins, 111 N. Y. 151; Hemmens v. Nelson, 138 Ny AG BT. Communications made by a member of an institution in good faith and without malice, and laying the matter within the line of his duty before executive committee, is privileged. Hemmens v. Nelson, 188 N. Y. 517, followed Pendleton v. Hawkins, 11 App. Div. 602, 42 N. Y. Supp. 626. Where defendants made a report to parties by whom they were employed charging plaintiff with gross violation of his official duty, it was held that the report having been made in good faith and upon probable cause was a privileged communication. Van Wyck v. Aspinwall, 17 N. Y. 190. Statement made by a superintendent of city works to a superior officer, concerning a master plumber having dealings with it, “ He is crooked ; he is as crooked as they make them, and he lied to one of the clerks in the water department and obtained a permit fraudulently from my department,”’—Held privileged in such case, and burden of showing actual malice is upon the plaintiff, and this is not accomplished by simply proving the charge is false. Steven- son v. Ward, 48 App. Div. 291, 62 N. Y. Supp. 717, citing Mc- Carty v. Lambley, 20 App. Div. 264, 46 N. Y. Supp. 792. The report of a committee to examine the financial report of a trustee of the school district which points out irregularities in the finances and is read at a school meeting and then published is privileged, unless it is prepared in bad faith and with malice. A newspaper article written by a member of a committee, in an- swer to criticisms upon its report, reiterating the statement therein made and calling for explanations is also privileged. Lent v. Un- derhill, 54 App. Div. 609, 66 N. Y. Supp. 1086. Words spoken by a third person to a landlord in answer to in- quiries respecting the character of his tenants are privileged. Inddle v. Hodges, 2 Bosw. 53'7. Communications made to a mercantile agency as to the credit and responsibility of persons in business and by it made in good faith to a subscriber are to be deemed confidential and privileged. 750 LIBEL AND SLANDER. Art. 9. Defenses. Ormsbee v. Douglas, 37 N. Y. 477. But the proprietors of such an agency are liable for a false report disseminated by it injurious to the credit of the subject of it, although made in good faith and upon information deemed reliable. A communication is privileged only when it is confined to those having an interest in the informa- tion. The fact that the communication was in cipher understood by the subscribers only does not affect the liability. Following Taylor v. Church, 8 N. Y. 452; Sunderlin v. Bradstreet, 46 N. Y. 188. A commercial agency is a‘ lawful business and when conducted lawfully is a benefit to society and trade, but no just reason can be given for a rule that would exempt it from liability for a false and defamatory publication, when other citizens would not be exempt. It is not entitled to any privileges beyond the ordinary citizen. Rapallo, J., in Haton v. Avery, 83 N. Y. 34. A communication by a member of a church with reference to the character and conduct of the clergyman, and seeking his re- moval, when addressed to the common superior is privileged. O’Donaghue v. McGovern, 23 Wend. 26. Charges preferred to a lodge by one member against another which the lodge has a right to investigate and remedy are privi- leged. Streetzer v. Wood, 15 Barb. 105. A communication by an agent to his principal relating to his employment and within the scope of it is privileged. Washburn v. Cooke, 3 Den. 110. Words charging theft spoken in good faith to a police officer em- ployed to detect a robber are privileged. Smith v. Kerr, 1 Barb. 155. A complaint to a fire marshal, causing him to institute inquiries into the origin of fire, is privileged if pertinent and material to the inquiry. Newfield v. Copperman, 47 How. Pr. 87, 15 Abb. Pr. (N. 8S.) 360. School trustees who have reason to question the conduct of a teacher have the right to take evidence as to her misconduct, and their action in so doing is privileged. Galligan v. Kelly, 31 N. Y. Supp. 561. A communication from a resident of a school district to the trustees making charges against a teacher, and asking her removal, privileged. Smith v. Bennett, 9 Week. Dig. 549. Statements made by a patron of a school to the trustees charging LIBEL AND SLANDER. 751 Art. 9. Defenses. bad character against a person proposed to be employed as a teacher, held privileged as to the trustees; but otherwise as to statements of the same nature made in the presence and hearing of others; but the fact that the person making them had no reason to believe them to be true was held to show malice. The burden of proving malice in case of privileged communications, however, rests upon the plaintiff. Harwood v. Keech, 4 Hun, 389, s. c., 6 T. & C. 665. Communications in good faith to a school commissioner by a resident of the district making charges against a teacher are privi- leged. The presumption is that they are made in good faith and the burden of proving malice rests upon the plaintiff. The falsity of the charge is not of itself sufficient to raise an inference of malice, nor is the allegation of truth of the charge in the answer by way of justification evidence of malicious intent. Decker v. Gaylord, 35 Hun, 584. A statement to a member of board of excise as to the character of an applicant for a license by a person residing near the place is privileged, and the burden is on the plaintiff to prove malice on the part of defendant. Coloney v. Farrow, 5 App. Div. 607, 39 N. Y. Supp. 460. An action will not lie for charges against a public officer con- tained in a petition to the authorities empowered to entertain such charges, and claim his removal from office without proof of ex- press malice. Thorn v. Blanchard, 5 Johns. 508. A memorial to the commissioners of excise praying them to with- hold a license from plaintiff is privileged, and an action cannot be maintained without showing express malice. Vanderzee v. McGregor, 12 Wend. 545. So also is a memorial to the postmaster-general protesting against his executing a contract on the ground of plaintiff’s fraud. Cook v. Hill, 3 Sandf. 341. Where defendant informed a constable that plaintiff had com- mitted a crime and that he should prosecute, and wished the constable to serve the process, no process having been delivered to the constable,— Held not privileged. Burlingame v. Burlingame, 8 Cow. 141. In Howard v. Thompson, 21 Wend. 319, it was held that an action for sending a letter to a superior officer, having the power of removal, charging a subordinate with fraud in office, that the ~1 or to LIBEL AND SLANDER. Art. 9. Defenses. action is for malicious prosecution and plaintiff must prove want of probable cause as well as malice. (C) When there is community of interest—In Ormsbee v. Douglas, 37 N, Y. 477, the court, per Woodruff, J., considers what are to be regarded as privileged communications, enumerat- ing confidential communications made to one interested in the communication, not done maliciously. Citing Starkie, 321; Bradicy v. Heath, 12 Pick. 162; Weatherston v. Hawkins, 1 T. R. 110; Fowles v. Bowen, 30 N. Y. 20. The latter to the point that in such case. proof that the communication was false is not enough to create a presumption of malice. It was held on appeal from conviction of criminal libel that testimony was not admissible on the question of good faith in the publication of a privileged communication where the commu- nication was not confined to those having an interest in the in- formation, but was published in a newspaper which was for sale and circulated among the people generally. People v. Sherlock, 166 N. Y. 180. A privileged communication ceases to be such when uttered in the presence of others besides the interested person. Webber v. Vincent, 29 St. Rep. 603, 9 N. Y. Supp. 101. It was held in Hosmer v. Loveland, 19 Barb. 111, that the privilege as to petition, etc., addressed to public authorities applies only where the body addressed has power to act upon the commu- nication. So held as to a petition to the governor. Like rule laid down in Fawcet v. Charles, 18 Wend. 473. A communication to the public at large in a newspaper in re- spect to the qualifications of the candidate for an office, the appointment to which is made by a board of limited number, does not stand on the same footing of privilege as if addressed to the appointing power. JZTunt v. Bennett, 19 N. Y. 173. Where one has an interest in the matter published, or a duty, even though not of a legal nature, but one only of a moral or social character and of imperfect obligation, and there is a propriety on the publication, and the party makes a statement in good faith to another who has some similar duty or interest, or to whom a like propriety attaches to hear or read the utterance, such a pub- lication is privileged, and the questions of actual malice, good faith, ete., must then be submitted to the jury. Mattice v. Wil- cov, 147 N. Y. 624 (636). LIBEL AND SLANDER. 753 Art. 9. Defenses. - But the claim of a moral duty will not be sustained when a person as a volunteer has made defamatory statements against another in a matter in which he had no legal duty or personal in- terest, unless he can find a justification in some pressing emer- gency. Byam v. Collins, 111 N. Y. 143. Where an author or publisher, who has obtained a copyright, thereafter publishes a statement that the same book published by another is unauthorized and infringes his copyright, the com- munication is privileged and its character as such cannot be taken away by proof that the book was not the subject of copyright; it must also be proved that he had knowledge of the invalidity of his copyright, and so that he acted in bad faith. Lovell Co. v. Houghton, 116 N. Y. 520. Communications respecting the character of a servant, made to one who contemplates giving him employment and desires in- formation on the subject, are privileged, citing English authori- ties; and citing the rule that a publication warranted by an oc- casion apparently beneficial is not actionable without express malice. That it is not enough that the person to whom the com- munication is made is interested; as also a communication made to one who had become surety for the purchases of the plaintiff. ‘These principles are stated to have been recognized in this State. Yaylor v. Church, 8 N. Y. 452; Fowles v. Bowen, 30 N. Y. 20. In People v. Sherlock, 166 N. Y. 180, rules on indictment for libel are considered and passed upon. The rule being held as to ‘privileged communications that evidence is not admissible on the question of good faith in the publication of a privileged communi- cation except when it is confined to those having interest in the information, citing Sunderlin v. Bradstreet, 46 N. Y. 189. Plumbers’ Material Protective Association was formed, among other things, to diffuse accurate and reliable information among its members as to the standing of merchants; and one of the by- ks made it the duty of the members to ifort the association “Whenever any delinquency or act comes to their knowledge which jeopardizes the credit of any party in the trade; ” defendant wrote a letter to the association setting out the failure of plain- tiff to pay a bill. It was held that the letter was a privileged communication; that the plaintiff to recover must prove express malice, and that upon proof of express malice that the letter was 48 754 LIBEL AND SLANDER. Art. 9. Defenses. written in bad faith with reference to a disputed item in a bill, plaintiff could recover. Trapp v. DuBois, 76 App. Div. 314, 78 N. Y. Supp. 505, citing Reynolds v. Plumbers’ Protective Assn., 30 Mise. Rep. 709, 63 N. Y. Supp. 303. In the latter case plaintiff’s exceptions were overruled and motion for new trial denied (53 App. Div. 650); and on appeal to the Court of Appeals (169 N. Y. 614), appeal was dismissed. Notice by board of trade to its members concerning a member who refused to settle with a comember or consent to arbitration, prohibiting them from selling to him except for cash until he set- tles, is a privileged communication. Reynolds v. Plumbers’ Ma- terial Protective Assn., 30 Misc. Rep. 709, 63 N. Y. Supp. 303. The opinion at Special Term cites and discusses the leading authorities upon the subject in this and other States and in England. To constitute a privileged communication it is not sufficient that the publisher has an interest in the matter, or a duty in respect to it, but he must make the statement in good faith be lieving it to be true. New v. Ford, Howard & Hulbert, 72 Hun, 12, 25 N. Y. Supp. 406. Words are privileged when used by one in the conduct of his own affairs where his interest was concerned and in reference thereto, and to sustain an action therefor evidence of malice must be given beyond the mere falsity of the charge. Clapp v. Devlin, 35 N. Y. Super. 170. Defendants having been defrauded of a large amount of goods, by reason of false representations, and having probable cause to believe that plaintiff was a party to the fraud, signed a paper, in which they stated they had been “robbed and swindled” by plaintiff and others, and agreed to bear equally the expenses of prosecuting the offenders criminally. Held, that the preparation and signing of the paper was a lawful transaction, and it was a privileged communication; that the terms used, though strong and plain, were not irrelevant, and, in the absence of actual malice, did not take away the privileged character of the com- munication. The exhibition of the paper to an agent of one of the parties defrauded for the purpose of procuring the signature of the prin- cipal was privileged. Klinck v. Colby, 46 N. Y. 428. Plaintiff charged the paternity of her bastard child upon de- fendant’s son. Held, that the fact that defendant was engaged ° LIBEL AND SLANDER. 755 Art. 9. Defenses. in an attempt to settle the matter between plaintiff and his son did not authorize him to blacken her character; and a charge made by him, while so engaged, that she was a public prostitute, was not a privileged communication. Bassell v. Elmore, 48 N. Y. 561. Where a church trustee made inquiries concerning a pastor whom the church had called, and he received in reply a letter containing defamatory matter which he showed to other trustees and to another member of the church in good faith, believing it to be true, it was held the publication was privileged. Pen- dleton v. Llawkins, 11 App. Div. 602, 42 N. Y. Supp. 626. An action will not lie for the ancaliue of words actionable in themselves if spoken between members of the same church in the course of their religious discipline and without malice. Jarvis v. Hatheway, 3 Johns. 180. Words spoken by a soldier to a member of the same company about another member of the company are not absolutely privi- leged. Question of good faith, belief in the truth of the state- ment, and malice are for the jury. Lally v. Hmery, 59 Hun, 237, 12 N. Y. Supp. 786. \ (D) Report of legislate and judicial proceedings.— The law is that if the publication complained of is a fair and true report of a legislative proceeding, and it was published with- out actual malice, it is privileged. Garby v. Bennett, 166 N. Y. 392; motion for reargument denied, 167 N. Y. 507. To bring a publication within the provision of section 1907, Code, as being a fair and true report of a judicial proceeding, it must be fair and not so garbled as to produce misrepresentation, and must not by suppression leave a false or unjust impression, al- though it need not be a verbatim report or embrace the entire pro- ceeding. Salisbury v. Union and Advertiser Co., 45 Hun, 120. ' The privilege accorded to correspondents in writing and com- menting upon public affairs is no defense if it affirmatively ap- pears to have been used as a means of gratifying malice. Hart v. Townsend, 67 How. 88. Where the article complained of appears to be the report of judicial proceedings and comments thereon, and the report is clear and the comments true, and absence of proof of malice, the com- plaint must be dismissed. Johns v. Press Publishing Co., 46 St. Rep. 859, 19 N. Y. Supp. 3. 756 LIBEL AND SLANDER. Art. 9. Defenses. Privilege appertaining to the report of judicial proceedings does not include imputations plainly irrelevant and impertinent; the question of privilege is then only to be determined by the court and in such case a publication was held not to be a fair report of a judicial proceeding. J/art v. Sun Printing & Pub- lishing Assn., 79 Hun, 358, 29 N. Y. Supp. 434. It was held in McCabe v. Cauldwell, 18 Abb. Pr. 877; Acker- man v. Jones, 5 J. & 8. 42, that no action would lie for the publica- tion of a fair and true report of a judicial proceeding, except on proof of malice. This includes an ex parte affidavit presented to a police magistrate to obtain a search warrant. A substantially accurate report of the trial of an action is privi- leged, but if it interpolates comments of counsel not in fact made, containing libelous matter, that is evidence of malice which de- stroys the privilege in respect to the entire report. D’Auay v. Star Co., 31 Mise. Rep. 388, 64 N. Y. Supp. 283. The publication of a slander uttered by a murderer at the time of his execution is not privileged either under the statute or at common law. The statute relates only to statement made in judicial, legislative, or administrative bodies in execution of some public duty. Sanford v. Bennett, 24 N. Y. 20. An action for libel will not lie for the publication of a fair and true report of a judicial proceeding, except upon proof of express malice. Ackerman v. Jones, 837 N. Y. Super. 42. The fact that in a previous controversy opprobrious ephithets had been applied by one party to another does not render libelous matter subsequently . printed, privileged. Cassidy v. Brooklyn Daily Eagle, 46 St. Rep. 334, 18 N. Y. Supp. 930. It was held in Stanley v. Webb, 4 Sandf. 21, that the publica- tion of ex parte proceedings before a public magistrate are not privileged, and like holdings as to proceedings before a grand jury. Both at common law and under the statute a fair report of a public official proceeding is a privileged communication and is libel- ous only upon proof of actual malice. Mdsall v. Brooks, 17 Abb. 221, 26 How. 426. The fact that the injured party was not a party to the judicial proceedings reported does not affect the privileged character of the report. Ackerman v. Jones, 37 N. Y. Super. 42. Tn an action for libel consisting in publication of a report of judicial proceedings, the question is whether the report was true or not. If it were true it must necessarily be fair, and if false, LIBEL AND SLANDER. 757 Art. 9. Defenses. it cannot be fair. Huff v. Bennett, 6 N. Y. Super. 120, affirmed, 6 N. Y. 337. In Hart v. Sun Printing & Publishing Assn., 79 Hun, 358, 29 N. Y. Supp. 484, it was held that the privilege which protects publishers of a report of judicial proceedings from libelous charges does not cover an implication voluntarily made, which is clearly irrelevant. Held, that section 1908 so qualifies section 1907 as to make it inapplicable to the libel contained in the heading of such a report, or to any matter added by a person concerned in the publication, or to anything appearing in the report and not form- ing part of the official proceedings. That it is a general rule that the privilege which protects publishers of reports of judicial pro- ceedings from charges of libel do not include implications volun- tariily made which are clearly irrelevant and impertinent. Citing Moore v. Bank, 123 N. Y. 420. In Weber v. Butler, 81 Hun, 244, 30 N. Y. Supp. 713, a news- paper was held liable for an article written by a reporter who obtained the information in respect to an action for divorce from the motion papers on file in the county clerk’s office. The name of the defendant was cass yjeis dose sidveiesas ava a syaenaia aversenard es ane renale dale Seep 189 Personal injury . ............. tirana Pin samt nas A pare 2 oe, 150 Police POWER sices + aveieies sonnei wie made gM d ewe Ree wen caiseey 17 Principal distinguished from Master scwc es cir essa sssanes souees 97 Privileged communications . ....... cece cece eee e eee ewer eens 732, 733 PrODaADLO CAUSE: cco ioccss:specsne 0.2 cd vattuietes 8.9.0 wrtua ead lava. soennciuasoublone laced Aubin eee 491, 557 Property;, GjUTy €0° ees esa seus sos ded s ea eee Caw awee ee cee PERO 240 Proximate Cause: i. wads s4 guess smmees ods anes s eeem ee eae eos Seo 31 Publication: 3).agcxdia yannaciivealowies 6 owen easel e.o waters Came a iN 707 Quasi-municipal corporations . ........ 0. cece cece eee eee c eee 115 Rights; civil ic w esas diem iiev sures vas Gen oeuvres Vee bs oS ewe oe ae 14 SEdUCH ON cc a gta arene weveunerir Ss Suemete Rianne F.eh waudd oth nates 298, 372 Servant +s... ceenersnees ee sees 6a Re oe wh ee a eS oe eR ae aS 80 Distinguished from agent ........seeeeseeesecccecceeereneecs 97 STB CR 55 a seaeceas SG Annie Seca iS Seve. wvginsere «Apehaeslisrae gates seesdies 653, 662 Torts generally . ..cccccccccsonnercstesesersvavevesecensrenseses 3 Deputies: (See SHERIFF. ) Directors of corporations: As joint tort feasors .........scceececesece Hie we galns eee Se 158 Enforcing liability of .........sseeeeeeeeuee siieoe eae ie a Se iss Soue 229 Discharge from arrest ...-....eeeseee eee cece eee e ete cree eee eeees 245 Discretion: As to liability of municipal corporations for acts involving.......... 126 Disease: Caused by seduction ......ccsecececeecceecereene ajalee 4 arian ways 310 Destruction of property to prevent .......... ois dye Ausealer ie apache ss Maas 189 Contagious, words imputing .......scesseeseeeeceeeeeeeaeee 677, 700 As justifying breach of promise ...........eeeceeeceereneees 382, 385 Diseased persons: Imprisonment Of . ...-... cece cece ee eee eee n cece reece renee 614 Divorce: As affecting criminal conversation .............. to eeverecee . 349, 351 Inducing woman to obtain ..........ceeeeeeceeeeeese adits acai eis 347 Double damage .....--- 67 hia Cow eeeewe wees Sean eeS we aewewves ee BBB INDEX. 855 Drunkards: Page. Frauds against occas sinsnis adie nese 6 ares 8 44a sive ace e'oue eave oigsaid ieee ee 62 Wiley Of ses tas saes aie esas es See Biv see avs vaca canyw eigvosvada talons disteds eras 62 Intoxication as defense to breach of promise............. seeee 385, 393 Due process of law: (See RIGHTS.) Ejection from car: (See ExPuLsIon.) AS HASSE ULES is = rahanres Se nuctors sitte Stahei aie toe cassdesio i vs er emeiaareye wave deieionaned 414 Ejecting from property: JUSTIFYING: 2 x was was saw bras owiacare se Bierw Www ww arate TE arenas eevee uaearaiod 425 Election, inspectors of: not exempt from liability ...... cc cece cece cece cece eee neeeves 179 Election of remedy: Generally considered 1... 6. ccc cece cece cnceceeescenceeseseeneseees 212 No amendment on trial ....... ccc cece cece e eee te eeeees 222 OER CG EOL cbs sisoceuassaniorch caso nat an See oynin coi td cousasea dlnstovausd Abi i (aoe xan anes Bridge ek Soca 220 Evidenced by commencing action ........... 0... ccc ceee eee n es eees 219 Between assault and battery, and:slander....................0000- 448 Between false imprisonment and malicious prosecution........ 515, 620 Joint tort feasors, election in suing .............. cee cece eee eee 226 Knowledge of fraud, as affecting ........... ccc cece cece eee eeee 220 Is limited to cases where remedies are inconsistent............... 222 Plaintiff: bound to elect) .4cc caves Gadied pewed wee wen ea auaden ciew ew% 22:1 Right to sue ex contractu or ex delicto, when it exists............. 212 What: cOnStIb bes ca scscstsicigiteie ching lous ce soasaetands: Suede een Stanek cep iiete tel deseo aare 218 Employers liability act: ..........cceees cee ee reece teen ee eeneerees 91 Encouraging assault ......... 6. ccc sce e ence reece eee enneeeeeesens 418 Enticing away children: (See ABDUCTION OF CHILDREN.) Enticing away husband or wife: (See CRIMINAL CONVERSATION. ) Equity: Equitable relief for torts, generally considered..............-.++-+ 204 Contribution between wrongdoers, equity will not enforce .......... 162 Enforcement of remedy ............ 0c cscs eee cree eee e nee e ee reeee 239 Faise imprisonment, equity will not restrain .........-sseeeeeeees 551 Injunction to prevent wrongs ........... 6 cece cece eee e eee eeneeee 205 Libel and slander, as to restraining by injunction................. 660 Marriage, promise of, no specific performance........-.+++seseeeee 373 206 Multiplicity of suits 2.0... 0... ccc ccc ec eee tenet e ene en eee nee 856 INDEX. Evidence: (See also Evipence in the various actions for torts.) Page... In abduction of children ..... sisivisteesariwnate ie tiaeny racers peaaoess 294 In assault and battery ......... ccc cc wee c ce ce cece cere cererrecene 456. In breach of promise to marry ........ 2... c eee eee ener tence 391 In criminal conversation and alienation of ‘affection................ 360. In false imprisonment ...........00 ccc cece e cece eee eee ee eeee 632, Tn. Vibek ‘and, slander xccssice arsine Seneeie eaten eg Mae ae sine diem 801 In malicious prosecution ....... 0. cece ccc eee rete eee e ee enanes 623 To mitigate damage . ..... ccc ccc e cece cece eect ee eeeteeeeee 277, 279 Seduction 4% sxeunscansusnnee se seron seater seardewingee awe « 325, Excessive damage: New trial for. ..........6. bibs iahiiseheteyenlore levenauereiexe etebavone te © Gans itecaranssaye 286. Excessive force: In repelling assault ...........- es aaa ale eels tepel ie te See eats SESS VETS 422 In defending property ..... ia. Saip pion olaueibsoyexeraresiasya-eeyasierasstiesn paca es 425, 430 Execution: (See Practice; ARREST.) Against the person, generally considered .............cceeeeeeees 243 Malicious issuing of ,........ Sg jn 18ibie ig Ava corneie ieralieforsinre’ wiesvlereGyeretece 540, 542 Executive: (See PUBLIC OFFICER. ) Executor and administrator: (See DratH, ACTION FOR CAUSING; SURVIVAL oF ACTION.) Exemplary damage: Generally considered . ......cceccsecceace stock seekoee we eaclitele 273 (See also DAMAGE.) Exemptions from liability: (Compare PRIVILEGE. ) Generally considered ......esccecceccveece Cine means ae sinee ene 165 Accident, inevitable: « . cca sees sescdianad sean Ee cece suseaee eee ane 191 PGE: OT GOD se. atest cassvin'ahe's sw tbceyehere din. uasouece era rayeinneoe snharen boners Saraweaies 69, 72 Of ambassadors and consuls ........... igen vasee mers averse + 169 Of assessors . . 1... eee ee eee ar asa aS SiraPaN Sia otal kcanercard qaeut uae bonarteoe 178 Executive, chief, exempt . ...... cece cece eee cece erect ne ee ee ences 169 Inspectors of election not exempt ......... ccc eee c eee ee eee eens 179 Of judicial and quasi-judicial officers ............... 2. eee ae 171, 175 (See also Maticious PROSECUTION; FALSE IMPRISONMENT; LIBEL AND SLANDER. ) Legislature, members of, exempt ....... Biel Seuayoue Ravbiniiatig Grew rbcadegie: Ss 170 Necessity; acts: OF o. csvicieeiciasineeis sities Salsas eWsed sas eedemmeee nes 189 Of public officers . ......... eee eeeeee Saath Gets WoT S craaacalonaiadn waldo 180. "When protected by process ........ ccc eee cece cece ence e ees 185 (See also Process; Fase IMPRISONMENT; Maxicious PRosECcUTION; POLICE OFFICERS.) INDEX. 857 Exemptions from liability — Continued: Page, Public officer, when liable for acts of subordinates ........ Stars 184 State, exemption of . 2 ....... cece cee c cence sce eecercereeens 165 Court of Claims . 1.2... . eke cece eee CECA et era 167 Express companies: (See CARRIERS. ) Duty to deliver . ...........eeeee oes Gee ea eames 69 sia s Avene ORS 73 Expulsion from public place: When justified... ssewc osteawersvvas s saceinw oa wee Sreviehat sue dave otetisnena a ee 438 (See EsEcTION. ) Extradition: Unlawful « & sisws seeds ccwnass veewass PSSA Ree GRE ee Caio wie 584 False imprisonment: Generally considered ...ccccccccccc cece scccccccceneesscecsesenese 545 Advice of counsel as defense ............. Coindigaielauss b lgeretialecustece 611 Agent, acting outside his authority ..... a SNS areas 2. 50 aS ckaattia ses 609 Imprisonment by ......... Se eee ee 596, 600 Assignment of action .......... 0. cece cece ee cece eee eee ee vances 553 Attachment of person in action Of ........ 0.0 ccc eee ee eee eee eeees 639 Attorney and client, liability of ......... ccc cece ce cee cece eee 603 Bail, arrest. Dy... saw ccs ssenin ss seiewas Haas ot eS Oss Cae Me ee wae 570 Cause for arrest, when must be stated................eee eens 568, 572 Character, evidence Of 2... ...... ce cece cece ee eee e ere teen ences «+ 635 Charge iq says mieicesuaies es saw aoa eRe se RteG dashes dee aa Oe Ss 640 Children, imprisonment of ........... cc cece eee cece cere cece teens 612 Illegitimate, false imprisonment of, by father...............00+ 547 Client, liability of ................ ee oe ee ee te eee 603 Complainant, private person a8 ......... cece cece cece ee eeeeces 573, 576. Compromise as termination of imprisonment ............-..00e000e 565 Consent of plaintiff as defense ........... eee e eee e tent eet eens 608. Conspiracy in obtaining conviction ......... 0. cece cece ee ce ee eeees 565 Contempt of court, illegal arrest for ...........00000+ Miia We 4 Masha 585 Corporations, when liable for .........0. cee e cece cnet ee ee nee eeces 596 Costa a. cay eG eccundd tase a iaive se tation: ayeiew VeMaee oe ewe ayers 643 Counterclaim, in: asidiaa's ag 24 0% tere se 498 winds Seas t pees Vo nne Porelbce 236 Criminal action for ......... 0. cece cece cece eee tenet e tenn e ences 550. Damages « 2. covii nes saaiereeseeeesee< LeU We MES BMS Ss eae thee 644 Compensatory . 2 oie cece cee eee re ene rere tenet eee eteneenes 644 PUNUIVE 5 iesoig peer cede Sees EE Cg ewe de Wat aums SBS EA KemaS 647 Mitigation Of cide eeside. oiiendin so narcies ORD TOA Beas ee RE! S Se gins 647 Evidence ‘Of sis sssuneesd pres iene co yatia oe eeges pees oe eee doess 636 858 INDEX. False imprisonment — Continued: Page. Debts, collecting by means of arrest...... Pi eieeavs anae'ee serene BBB, 599 Defendants, joinder of .............. sds Raheesnats suo edd Pata, aiae seveceee 618 Defenses .. .... CEMA PTRES SEATS ATONE TO DORE LYS 4d PROS ccronsials s 606 Defense of person or property ......... 00sec cee ee neees wheat sete . 610 Definitions . se visccesssavawivs sew dese tiwy eeaews caves ta sem se ae 545 Delay in taking prisoner before magistrate ...........sceceeeeeeees 562 Detention is necessary .cacscceess oc gets daresen ss eeee wees Heed ee we . 558 Detention, termination of, when necessary ...........ee cee eeeees 564 Originally lawful, may become unlawful ...............seeeeee 562 Not terminated as a defense ....... 0.2... cceeeeeeee Saaeteniueke 6 Saeey 611 Place: Of AmMmaterial ts. sawie teea dees ad engnksaweae ng wade aiow 560 Duress as imprisonment ....... Sisteedeasardee ness REID a se scacstnade ines 560 Elements of the Wrong .........ccesee cece eee e eee ee eect eeeneee 554 HVIGCHCO: as: adieieesdone snd wORaes eoaoN MONA. oVGag hee eaas ow 632 Extradition unlawful ............. eee eee sonal es 8 enerinsb esx Sagano . 584 Force, physical, not necessary ......... 0. cc ee ce ceec ence eens veee 559 Game law, illegal arrest under .................- save beak snes 586 Habeas corpus as remedy .......... seabasees i felaee éticanaveie se eseinoes 550 Health, Board of, imprisonment by commission.............-..0005 638 Imprisonment (see DETENTION). Place of, immaterial .................00000. vse Woeaneee shar aus se ae 560 Injunction, none granted ........... 0. cece cece cece ce eee eeeenes 551 Instigators of arrest ......... 02 cc cece ee ues Vapi Wi sa eects cod enn 573, 576 Insult, damages for ........ cece cece e cece cece eee cece eee teneees 646 Intention, evidence Of ........ 00. cece cee eee ee eee islets 44 Eerste asous-o 635 Joinder of, actions for ............. spaces Sesepansisos bcasay Avterucetionh caverieeasneoncte 228 With malicious prosecution . ............... soils ee sates 515, 619 With assault and battery ............. cc eee c cece cece cece eees 448 Joint; tort TeasOrs: x2 ccsiieg ss ccees sa suis tears sioe wane wv weed Bee 618 Judicial officers, liability Of ....... 0... cece cece ees e eee cece en ecees 587 (See also JUDGES.) Jurisdiction of, as affecting liability ................0...0000% 577 PULISHICHION: <<: gricgesieicisannigesss sae Se eine als wanes otaeOY EA Gina tee tve 551 As affecting validity of process ........... cca ee cece cece eeees 576 Justification of arrest .............. Saale ate ee ee ee 607 Knowledge of imprisonment by plaintiff, necessity of .............. 561 Lawful imprisonment may become unlawful ...................... 562 Legal authority, evidence of ......... 0... ccc e cece cece cence ene 634 Limitation, statute of ........ 00... c eee cence ipleiayevinsins a Kida oe 552 Lunatics, imprisonment of ............ Het Re 35,8 a PR ensue aie aeyaua’s 612 Malice, not essential . 2.0.0... . cece cece cece cece cee ccncecceaes . 554 EVIdeNCE Of sic sctew 424 emer tare yee a nsaewnaens Vugiee teckaw’ - 632 Malicious prosecution distinguished from false imprisonment...... 547 Master, liability for false imprisonment by servant................ 600 (Compare CoRPORATIONS; AGENTS.) Mental suffering as damage .......... cca ayeboo aan 2G) sewSE ii ateen eae 646 Military authorities, arrest by ........ aR teaaedh Wed 88 Wein s esre ceeee 605 INDEX. 859 False imprisonment — Continued: Page. Mitigation of damage ............. cece ence ceeeessecesueucs 647 Moral restraint: a: sas sexier tate. dio. asensa oeernagiemineiesewusiesinkac sa 559 Name, arrest under wrong ............ 0.0 cc ccccccceeceeucceares 583 NOnSUIE: & ssesvng nice xy aelees Revere s.sledaciue eureaee'e aeioarsie vee Veda daeay 640 EDATULOS) so cuasanchs ai asismualaticuigteut csnartatenee ayer tee daca alban ees aie Arete ede tales oat 616 BG ut s? fee ve cciaehizra raises ocoes Yicenvnn ti nialivate Sia hecnate ea Ga aaunbeln a emeene ek 616 Instigator of imprisonment ................ 0.00 ccc eee eeaeee 617 Defendants: «, cicero nacwieeas easie y sueneiacg di diacisa-siaiaioreves geo iaday eehdnadgineet 618 Partner, when liable for false imprisonment by copartner.......... 600 Person, :Aefenses Of) aicus a. gecie ie. toainonduacacenaaavers eahaln a cavaivb lehnvahuis wearboavara easter ans 610 Physical compulsion not necessary .......... cece cece e eee ee cece 559 Place of detention immaterial ............ 0... cece cece eee e eee 560 PlCAGING: co. cine auhaienmners rr onvee Rapa meeisalande sel anudena dete se RHO 619 Complaint « seasessee wes cater ana daeeu aes vSalosnrcaseictine saute 619 PATS WOT 5 sens sta cvtentulopn Sens by ahw tae Seba dare cna cn awe secant pete 623 Demurrer’ .. csigecs seweanapies wae ee secneeSeeidetmeaaces onawans 624 MOTTE 2 ss eitesa caida dass usbwusens austacbud ht suse eaucnd ebeaeads anne een indiraeds anemeete 625 Police officer, arrest by, without warrant ...............00005 570, 573 Arrest by, on void or voidable process ............ecceeeeeee 576 (See Process.) Private person, arrest by, without warrant ...........cecc eee eeeee 567 AS GOMpIAMANt: .. nase wasorsawulenteisaiadecaapetugique weeks enw 573, 576 How far protected by Process! is eewisener sveenes pew ine Pees 579 Privileged persons, imprisonment of ............ cess eeeeeeeeeeees 614 Probable cause, want Of ......... cc ccc cece ccecceccusceceucneeus 606 DOMED 3c. oaanaga canes cthale tn Legler rtgineets erg wants 557 As to the necessity of showing ........... cece ee ee cence eens 556 Bividence (Of sg. sissies: g: susitsgterseare teisearewiaials a eie.Wiere)sleile cohen Yeats heh 633 When for the court, when for jury ..........c ccs eeeeeeee 557 PP OCOQUIE i: se gnssint. tea ieseatysia: anes Sache ase availa 0 enslaetalg, QiooTewie-g galonane « lala 639 Process, arrest: without: . , arvagunie 210 Foreign states: Jurisdiction of injuries in ..... sifoheleecalarsiaigs Seigiearess py aAvene i aXe wees. 209 False imprisonment in ......-..seeeeeee oisie'e Giana BME Saha acne 552 Former recovery: As defense in libel and slander ....... Orsi ecaigisi aleeieie-wiebeieure eGiaul44 793 Libel against woman’s reputation ...........-+++seseeees 794 Libel, injuring attorney .........ee eee e ener e eens 795, 796 Answer, specific denials ........ 60. eee e ee eee eee eee e teenies 797 Justification and mitigation .......6...0se ee ee seen renee 798 Pleading privilege . .......... dios aug ale dae amie SS SteRTE Paar 800 Malicious prosecution .........60000005 tC oa RRS Ge ne 520 Complaint, civil action with arrest .......+s-se seer eee eters 520 Joining false imprisonment .......-.-.--++seeeeee eer eeee 521 Answer, with justification 0.0.0.0... 0: seer e eer eee eee ees f22 Sedtiction: Complaint, seduction without force .....--+++++eeerreetreees 319 By mother . 2 oo... eee eee cece eee eter e eect eens eees s+. 320 Asking release be set aside .......-+-+sseseeereresereess 321 By woman seduced against guardian ...-.-+.+++e++eerees 322 Answer, specific denials . .......0. secre eree este rere eres e reese 324 862 INDEX. Foundations: Page. Undermining » « seiviisveavavamenes ce “sires 6 Pa oeRUN RS NGO Sete he 195 Fraud: ane f Law furnishes remedy for .........ccceseeeeee erence ten nene eee 44 OP apent 2 sdariusned batealsian ydas Named eae da dase daucenn save 98, 101 Charge OFS. BS: LUDO: ssc icf sa sescaans cova tera ei Sous aaeseracapeneeece top subehl DORIS BRS Se 691 Consent Obtained bY oa cesses peg ee asinine een ee siaae oe 199, 483 When equivalent to assault ......... cc cece cece eee eee te tee ee enes 418 Equitable jurisdiction Of ......... ccc cece cece eee te eee e een eneee 205 OF ‘infants: cs auswes 209 cee eda Cees Med ed Raw Ke es eNa ET sine eS 50 Joinder Of actions fOr siciudnes..cewiaetaaiens 6 odeness SaeE MEE FSS 228 Judgment for, not discharged in bankruptcy...............0.4. 248, 249 Knowledge of, as affecting election ............ 0 ccc eee e eee ees 220 Lunaties, fraud not imputed to ......... cc eee eee eee tees 60 Marriage induced by fraud, action for ......... 0.0.0. c eee eee eee 371 OE PAVtNeTr so: s i. scsecadeen giz marcas heen asenid a aie weda orale Rustad aac MEET Bah ok a 108 Release obtained by, may be set aside ............ cece eee eee eens 319 Of servants (see MASTER AND SERVANT) ........cceecececeeeceeee 87 WalVer Ob APAUG. sccosvdisvenseaaieveutxe dace leew deena Su tvacd Biase ee ohccom Ge A Spend dean. tbe 212 Fraud, statute of: Not applicable to promise to MAITy........ cece eee cece eeee ee neee 381 Funds: Diversion of, by agent, right to follow.........c.cceeeeseeeee weve 101 .Game law: Illegal arrest under ..........eeeeeeeeeee Deineeaude ys Cea dant eeeeunas 586 Games: Vm jUP eS) Ai o.oo. caadains es AROS GRRE TS RAR SEG ae EE waned oe acess 198, 432 (See Prize Ficuts. ) God, act of: As exemption from liability ........... 0 cece cece eee e eee teens 69 Good faith: (Compare MatLicE; DAMAGE, MITIGATION OF; PROBABLE CAUSE IN MALICIOUS PROSECUTION AND FaLseE IMPRISONMENT. ) As affecting malice in libel ............. ce cece cece eee cence 719, 807 As mitigating Jibel. sass ees csgt cow srass eee ees Saow eae wees 728, 730 As affecting privileged communications ....................0. 732, 742 Defense in malicious prosecution ........-... cess cece eeeenee 493, 495 Governmental authority: Exercised by municipal corporations ............... sg Palneapsiae .. 116 Guardian: (See INFANTS.) Ad litem, in suits by or against infants .......... Seiisiewiomaxedan 52 Seduction by . 1 ..seeeeeese eee eeerenenes Rien weWeeR Dal ARS Aiaiesers 314 INDEX. 863 Habeas corpus: Page. To relieve from false imprisonment ...............0c eee eceeneces 550 For restraining liberty of wife or husband............ecceeccceeees 340 Headlines: Not privileged . .......... iil aus nis guaran Seemiouns racddae nenabesaraauediees 761 Health: (See DISEASE. ) Ill-health as justifying breach of promise.................... 382, 385 Health officers: Municipal corporations not liable for acts of .................005- 133 Imprisonment by . ......... 0. see e eee eee eee (2s sew eweneont gone: 638 Highways: (See MuNiIcIPAL CORPORATIONS. ) Horse: Battery on, is battery on OWNET.........eceee cece ccc eecccececens 413 Hotel-keeper: (See INNKEEPER. ) House, defense of: (See PROPERTY.) Husband: (Compare WIFE; PARENTS.) Abandonment of wife, criminal action for .................0..000- 55 Action by, for alienation of wife’s affection .................00005 345 For criminal conversation ........... 0. ccs ecee cee ec cseceees 342 For enticing away Wife ........... ccc cece cece e rece cece tees 348 For anjuries: to: wife: s..5:0.si0seccdegencse ce seseeie sean sens 59 Against; wife: «6 20 csanescenseee meet eee tee Ree Ree AG ene 54 Chastisement of wife by ............ cece cece ee eee eee eee ansianetees 436 Conversion, suit against wife for ..........0 cece cece eee e teens 55 When liable for tort of wife .......... cece cece eee ee cece ences 55 As joint tort feasor with wife ............e cee e reece eee cence ees 56 Illegitimate child: False imprisonment of, by father ..........0.-s se eece seer eee eeee 547 Illicit intercourse: As consideration of promise to MAITY.......-+..seeceeeeeeeeceeres 380 Impotency: As affecting promise to marry .......... aBib wie Sara ea OE Geaigtha ss isis 376 Imprisonment: (See ARREST.) Discharge from .........eseeeeeeeeoes a Raia ale ereeee geigieeweewe: 240 False (see FALSE IMPRISONMENT.) 864 INDEX. Page Increased damage ..............eeeee0s ay ashave seveheuensaaes Seuhed eenateen SRS 283 Indecent assault: (Compare RPE.) ACUION, “TOR: 2s: s) asdia cod adnlacseadalmaecneeneas sees SERRE 314, 316 DAMABE: FOP... iis eeieaeteniie galery oeiiG alata lniniiawe eine ag AMiuNe edie oe wees 469 Infant's consent: tO) .ssicceasiveesnsseawes smears ss seas s eee wees 430 Indecent liberties: AS ASSALIE oo 4. oes atcesiaiaras drestaarn maaan oles ihdas cismainigeriiars we. 419 Indictment: As malicious prosecution ............. jes Mendon erntew ew 483 Inevitable accident: (See AccIDENT. ) Infants: (Compare PARENTS.) Liability of, generally considered ..............0005 weeweee araiaterets - 46 Abandonment of, by father, criminal action for ........... saree . =55 Abduction of, action for 2.0... 0... cece cece eee eee e tener eeneene 287 Actions by and against, statutory regulations..................085 52 Assaults bys. siuneesiwmema es veaewente oceans ane enn ed mmdned BORRS 444 Assault on, parent’s action for ....... cece cece eee cece teen eee 53, 443 Assault in defense of ............ 0.00005 da dayinai riots aubicdey gary ineeeniee 424 Assault on, indecent assault 0... 0... ccc cee eee eee eee nee 430 Breach of promise to marry by, no action lies..............45. 372, 375 Chastisement}08 oo. csdosagiiasians aniiyayecrediicung gene ucee a gia eet iat sts 436 Consent of infant no defense to indecent assault...............00. 430 NPAUG SOF a. asian haa ivmads benches Siewivam eee bn eee SWdesea Sew 50 Guardian ad litem, appointment Of ...... 6... cece cece eee e eee eee 52 Indecent assault upon, consent no defense .............0 eee e eevee 430 Parents, liability of, for tort Of ©... 6.0... cc cece cece eee ee eens 52 Parent, right of, to recover for injury to child................. 53, 443 Seduction, infancy as affecting ........... ccc cece cece tence teense 31l Injunction: To ‘prevent: WIONgS: soceewensswseey sexau were seekers eee cue 205 None for false imprisonment ........... 000s ce ceeeereeeneeeeennee 551 En Vibel atid SlaRd eR: ais: stirs ssesdiasen.seeraracinnie aeaoaciuaiasa oeblbna ano ladededs wan a:4-8 a 660 Injury without damage: (See Damnum Assque INnJURIA.) Innkeeper: Liability of, generally considered ............ iid Sota avevomasinee ws . 63 AS TBUREL c.f civ. s SRM ORES Saeed a eeea a ee . 64 Liability 08 a wiosrcesine tie wermiiteiencneiane an Fyais aavenngr aie snes 42, 63 Slander against . occ. eee c cece e seer eee enone Cee eeeweeseediee OTE Insane person: (See LUNATICS.) INDEX. 865 Insolvency: Page. Words charging . ........2secceeccececceuee sia i's ie ahaa! 8 oe seees 676 Insufficient damage: New trial, for ss sian sos sews sees 's astew etree cmneece s Haauenaver'eaa 286 Insult: Not; assault. o-ica ss sneeins See a siewne wae Se chraunsaenaceieeeeie venweleans 4 420 As mitigating assault . .......... cece eee ee eect een eeeee 435, 472 Damages for, in false imprisonment ...................0000e eee 646 Insurers: Garriera as + is 2 ox epaw os deere ck 23 6d ea Bow Soe aes a ee Wa eR 68, 69 Carriers of animals a8 ......... cc cece eee e cece ee cee eeneeceens 74 Carrier of passenger is not .......... cc eee c cece eee eee eee e tenes 76 Mnnkeepen a8 a. cas cijsike v4 gahe ade ee oo. Laat ued dats ea goats 64 Intent: (Compare MariceE; Goop FairH; ACCIDENT.) As element, in assault and battery ............... 00 ccc cacseeeeees 412 In action for harboring wife ......... 0... cece cece ecw eens 349 Evidence of, in assault ......... cece ccc ec cece cee cee eeccanceaes 458 In false imprisonment . ........... cece cece eect cee ec ceceees 635 Interest: As damage .. ........... aigwlele 6 Niele aiardiete eS vagus seuss eT eteNe auasS 258 Intoxication: (See DRUNKARDS. ) Involuntary act: Ais assaultiis .c sesiew seca Eso SEES TSR Ceeere es Seas bree SS Bain Fae 421 {Compare ACCIDENT.) Joinder of causes of action: (Compare COUNTERCLAIM.) Generally considered 1.1... cece ccc eec cence cent tees sen eceeeees 228 Joinder of various actions: Assault and battery . 0... .. cece ee eee cece etnies 228, 230, 448 CONVETSION 46. we 6s aataineis Genes sch ee OW ele ww ES SEEN a ReceNMRE wT 228 Directors and stockholders, actions against .................- 228 Discharge, wrongful ...........esee eee renee cece ce eens 228, 231 False imprisonment as he abet waa eed eens Seba. g .228, 229, 448, 515, 619 BAU: 56 io) kia e deronare dne.s ce doevaus dee edge he Ae REM S es SE Se TSS Ss 228, 230 Libel and slander . ...........--ee eee eeee 229, 231, 448, 620, 771 Malicious prosecution ...........6.eeeeee eter ees 228, 515, 619 Penalty, action for. ....... cc cece eee eee ee tenes picnate Shenae 229, 230 Property, injury to... 0... cece cece eee eee eee tee eee e eens 229 Seduction joined with action to set aside fraudulent release... 319 Trespass . ......eeeee Jicveue coer dtesssiwawanercrsmeeess 228, 230 55 866 INDEX. Page. Joinder’ of parties: 108 vais sch tndtinwiwasawiie awees sdaideubssieust iia cda 223 (Compare Jomnt Tort FEasors.) Plaintiffs, generally considered ....... swe siaeue Salter gal G eves succor 223 Defendants, generally considered ..-.s.ceeeseeeeee ert eeete brat woes. 225 Joint tort feasors: ne ee : (See also Parties; JOINDER OF PARTIES.) Generally considered . ...... cece cca cece ase Faw ee Tew RRS Be 156 In assault and battery, action against ..........00 0 eee seer acces 444 Attorney and client as in false imprisonment .................005. 603 No contribution between. ...... Paciaeeensee bani Pan ewe are Awe MRR S 162 Damages against . ......-... Bg Bi Rabat ase Ps waar lia veser Sibu teserelernaeneaanaaten 285 Directors of corporations aS-i:iii cis icc eee eee eee eens 158 Hlection in joing: 4: yng sn RRE CRATE wanes daw igo eee adage & 226 In false imprisonment « .6 cic cess vos Coden Sea TOS aS THRE REE OOS 618 Husband aNd Wite:-d8! isses. a). cesarean aie paren o/evesteais waavancn sete was aes 4 ... 56 JOIder Of s cey paves eusses taesesena wee wes Rog Nee Hee Eaten HES 223, 225 Judgment against oe. .... 0... cece ccc eee eee e ete e eee eeaneeeees 161 Judgment, only one satisfaction of 2 afi dadieune eee mia hae 160 Landlord and tenant as ................ ms ahtisaunavinues oubusislicsac swalomuaieats 107 An libel Aid slander i cccccccqcwkas tow wen cea ge eeeeees danke awe oat 766. Magistrates as (see Fats—E IMPRISONMENT). Master and ‘servant.a8) gic scans cone Bee bew ep decd aes skeen osm genes 157 Municipal corporations as . 1... 0. . cee eect cee e eee e eens 227 NEWS: AZ€NCY 88: cower eta ws ororadangnse MOWER MERE e SE TEE EERE 711 Par G ens 8g: aein Scsrvalssavsanacavasbetvardyovacaee Savona din Avtanl pause ieimniaind aa else's 107 Police officers (see FALSE IMPRISONMENT) .............. 570, 573, 576 Principal and agent as ............0.005 a bo sapecoray at Viet eran een cea 227 Satisfaction, only one against ........... cece eee e eee eens 160 Separate actions against . 0.1... eee cece cece cette eee ees 161 Judges and judicial officers: (See also OFFICERS; FALSE IMPRISONMENT; PROCESS; JURISDICTION. ) Liability of, generally considered .............. 0. cee cece eee 171 Assessors as judicial officers .......... cc cece eee cece eee e eens 178 Court martial, members having jurisdiction not liable...... ncaa 172 Definition, judicial officer . 12... cece eee cece ec ee eee eee aes 176 Quasi-judicial officer ........ ccc cece eee e eee c ee eeneeecaus 175 Exemption from liability .......... 0... cece cece ccc cee ens 171, 175 False imprisonment, liability for ......... ile eri sedis epcta ncaa kes 577, 587 Jurisdiction as affecting liability ...................... 172, 577, 587 Malicious abuse of process by ......... Bile Ja Tea wca a1 Beco agile wh da BA aaSSh las 541 Privileged communications by ...... ivavadolaug Setecatcne ahwih ee Haveeeee setae. (40 Quasi-judicial officers, defined ........... a eRe REINS Sooonect st tee seieletre: ELD: Liability Of « .ctoxccon aa res gute sa Zein easel Sa akere esa a eW eS s 173 Report of judicial proceedings privileged ...............ceceeeeees 755 INDEX. 867 Judgment: (See BANKRUPTCY; EXECUTION.) . Page. Against one of several joint tort feasors ...............0000000s -.. 161 Bankruptcy no discharge of certain judgments ................... 248 (See BANKRUPTCY. ) Effect of, on survival of actions ............. 0.0. ceeececeeeaeees 146 Satisfaction of, only one against joint tort feasors.................. 160 As showing ‘probable CAUSC curd sa ya meas oa RE Ra Kies oe Same 494, 504 Jurisdiction: — (See JupGEs; OFFICERS; PROCESS.) Generally considered . 6.6... c eee ccc cece eee eee eee eeeene 208 ASsallt. ditid. DAtUERY a wecsoa sae renders spges ox weal aa SEER Seles otad 409 Of ASSESSORS: .° x aoen ee ge yo 4 Ss Oe EMS Tin aatud Tamed awed deen oe 178 Breach of promise to marry .......... 0... ccc cece eee cece ee cece 374 In criminal conversation ............ 0.00 cece cece ee eee cece eees 341 Courts having jurisdiction for torts ..................0 cece eee eee 208 Of equity to prevent torts ............ eee eee eee eens 204 In false imprisonment .......... 0.00... cece cece eee ene e eee 551, 587 * Foreign corporations, no jurisdiction of injuries by .............. 210 Foreign real estate, wrongs to .......... 0.00 ccc cceeeceeceeeaeens 210 Foreign States, injuries in ............ 0.0000 e cee cece ee ee ee cease 209 Of judicial officer as affecting his liability .............. 171, 577, 587 Dibel: and Slander iii5-4 Gupte a stad noe wig ans aapee lo aesaten eo afew oe A wed gone Be 659 In malicious prosecution ............ 0. eee eee ee ee eee eet eee 480 Process, jurisdiction as affecting validity of ............00. ... 576, 587 In) -S€GUGhlOn: =. G aipines Res casino IE Meee Dsletein Ge ox maRpOens imecdias ws 303 Justification: (See various torts, article “ DEFENSES.” ) Landlord and tenant: Generally COnStdered 6. sini sg 6.5 so2k 5 epics Boia 0s wre Oe SIE OL TUBE DE He 102 As joint tort feasors ...... Poig eee agin nese eases cade ance soe 107 Landlord, liability to tenant ............ cece cece eee rece e eee ne 102 Liability to third persons ......... 0.00. e eee cece eee e eee eee 104 Tenant, liability to third persons ........... 0-2 cece ese eee eee 105 Lands: (See PROPERTY; DEFENSE OF PROPERTY; TRESPASS.) WETENSE OL -a92t) 8 es sch cape sa aew erie Ge a Seldee Res ass Taek HOR aa we oes 425, 610 Ejecting from . ............-..65 ee Cee ee ee 425 Injury to, in foreign States ............. Seika vephate cad seelavesn g SSRI 6a 210 Lis pendens, malicious filing of ....... ise eaieiea de RNw es a Ree we 485, 509 Slander of, title to ......... sastataicks chats seals ty. nce anan ooo. toh Sse ls whet assy anats 831 Retaking by force ......... Sbdii se Aerie Wie Sete Fa Wee os BEES Hae Ye Fe 426 Trespass upon, joinder of action for .......c-cee cece e cece eeeeeee 228 Trespass, arrest for ......... aie 8 At ales AOS 4 BA 8 oe REE ee wR Ye eee 582 868 INDEX. Legal rights: Lage. Exercise of, creates no liability ....... sgisirapleainueis autiene/wees, 193; 487 (See RieHTs.) Legislators, and legislative bodies: (See OFFICERS. ) Generally considered . ..........ceeeeeee MIMANaw TROTTER OS «. 170 Legislators, when exempt from liability .............ccceeeecccese 170 Privilege of, in libel and slander ............0ceccceccceeeeees 739 Report of proceedings privileged ..........cccccceeeesceeenceneaes 755 Lessee: (See LANDLORD AND TENANT.) Lessor: (See LANDLORD AND TENANT.) Liability: ; Exemptions from (see EXEMPTIONS FROM LIABILITY.) Libel and slander: Generally considered 2... ccc cece cece ence cece eee et ee eeeeenenas 651' Slam der ss. a) tek sseiecauas ss aataiias apis ei siete espe ersnlaigierss aie quaveia) ge winergies wees 662 Libel + 3 idstievswaseens 21 sen eswniied ioaweeiw crimes see scers 680 Abortion, words charging ...........0.ceeece erect et cee ete se eres 669 Affidavits, privileged. cocci cca ads snaee swag caress swecced ea wale le es 744 Agent, privileged communications by ............ ee eeeeeeeeeeeees 748 Libel by (see Publisher.) Aggravation of damage ........ccc cece cece cence teen rete netnees 828 Ambiguous words, interpretation Of ....... ccc cece eee cece cence 701 Amending pleading ...........ce cece cece cee reeee nce ce te aenenteee 814 APPEALS: so - cs Sessdetavercoceselvevanscaensusn soba ve atosena:tcoianiesehwtet in: vcevtovaue, oerendloue:dcae3 excuaidslize 820 Application of words ......... 0. cece ee ee cree eee ee cenee 701, 704, 801 Arrest of defendant im action ........... 0. cece eee eee ene eeneees 813 Arson, ‘words: charging ¢.a0c005.43- gaa Temieio so iasd Sa Nodes BSS tive 686 Artist, Libel! Dye: a-savenien sienmia dere aresosreindie apaneichiealaynans pistaaanwineiesals 696 Assignment of action for ......... 6. cece cece ee cece ee ene ence en eee 659 Attorneys, privileged communications by ............ 740, 741, 748, 745 "WTS: UPI ee cco: csseissaceveun asoreiiesosdcsmesalenese doncmnanarersiagitiaraia esas 674, 692 AVORMENT?? GSTiME, .o.2c06vsco:ecinis swioceinidan wiararnaie eyeterperie Gieiearane ace ay . 769 Bawdy-house, charge of keeping ..................0 0000. 665, 669, 678- BibHOp raphy? 0. ss sais see ree sel Ae a ace Nae Ms Bae SN Mi csacoha “al soev ser ielias a Sussalentras 652 Bill Of particulars: joc c0 dc aa see: be:advenset aera wiecere ey aipcniside sie aeie bes 785 Blackmailing, words charging .,........... cc ccecceeeeesccees 670, 688 Brewer, words injuring ........... 0. cc cece cece cece eee eneene 675, 692 Bribery, words charging. ...c-ceeeeeeecrersseeeececceeseesecss 686, 697 Business, words injuring. one in ............... URIBE ES aaeueugcsics 671, 689 Bibel. On: 2...03-sscsaeax seen wex ss Lae Aea and Sa vareeon daa ature aieeecece Yoatke 831 INDEX. 869 Libel and slander — Continued: Page. Character, as mitigation ......... ccc cece ee cee cere renee eeeeee 728 Eyideniee 0f j iseatiesatenes acne dessus s naneden sevens eee aoa ey 809 aT Be a ss asa seovitzicn sap acaulene cds nsetns se aie socei nbd cdiie sole \hcaytavm a « hovay¥y Sb w acdvolibign sceverd 815 Gival: action: iis cndwang ese Wadd cigeeisw aan eh ar ulens awa aia ane acnie 659 Clergyman, words injurng ......... cece sce e cee e ent e eee eeeee 672, 698 Inquiries concerning, privileged ......... 0... eee eee ee eens 755 Colloquium,” defined. «ccs c0. seduces ys reat eee Le SeaNlo e es 769 Comment, fair, when defense ........... ccc cece cece ee eee eee eee 759 Committee, report of, privileged ........ be eee ener eas nace 149 Communication in discharge of duty, privileged ................45. 748 Communication of libelous matter to reporter ..............00.00% 711 Community of interest as creating privilege ............... 0.0000 752 Compensatory damage .............. sdteinsteastie «Says emectnoe he omentt 827 Conditional, privilege: siis2s-cc.waed carne d vais eestor B8.Sheidon er ganersue 746 Confidential communications, when privileged ................ 735, 752 Construction of Words .........ccce ee ceeeee ee eeencuceees 701, 704, 817 Contagious disease, words TMPUtlOP pane uinigaiveniaeecemegcers wake 677, 700 Corporations, libel and slander by .............0cececeeeeeeees 113, 767 Corporation, may maintain action .............. 0. cece cece eee eee 765 Privileged communication by . .......... see cece cece eee e eens 749 COSES ia siertialie Sate neisce sioner ee i hiatticsan ache ce PageatasesDesnucuss waptieety 1p Beoeendualatantuate 822 Counterclaim in action <5 .sc6cscsness sens r cases saweseeeenas eens 237 Counterfeiting, words charging ............. cece cece cree teseare 670 Court, power to interpret words ............ 0c ec eee eee ee rene 704, 817 Province of, in determining as to privilege.................... 817 Crime, words imputing ............ cece cece ee eee ence eens 664, 685 Criminal action for libel .............c cece ee eee eceeee i geld cB eset 658 Criticism, fair, when defense ..........2-0 cee ccc cneccceesececeen 759 Damages, generally considered .......... srefonhaiel& Goleta ub ona se Spence 822 Damage, evidence Of . si cicavcn ces cgagne sews ts scat arenes seed 804 “Mitigation, Of s.ice sonecacioncs eghe ater dane LORE TRS 727, 804 When presumed . ......... ccc cece cece cece cece rere teen .. 822 As affected by repetition ............: esse eee ener cere nena 714 Special, doctrine of ......... 6. cece eee cere ete eens 656 Special, must be pleaded ..........-- eee cece reece eee eee teee 778 Defenses, generally considered ........-..+eeee secre beeen eee ees 723 Definitions 2... 2.2 sase wwe erie ee wensediee acre sneer 653, 662, 680 Deminrer sc snswh wa sdtdetdetanyeted eaed ek ae? ERR AER aE Ss 783 Disease, words imputing contagious..........+++++seeeeeees 677, 700 Dishonesty in business, words charging........ .-+-++-++++-+- 671, 689 Evidence, generally considered .......--.+seeeeeeeeedereeneeeeeees 801 Explanation accompanying slander .........+-++--- see e eee eens 665 Express malice ..........0:- ee eeceeeesesceeenenree eidadespevs Gent Sus @ibP 720 Fair comment as defense ..........-++ Sachi ase grbwmingsacs ay C69 Fair criticism as defense ..........:eecerereeeceeeetenetereecees 759 Forgery, words charging ..... Tenet ewaanee see eleigg Fe savidiralois tava heave 670 870 INDEX. Libel and slander — Continued: Page>. Former recovery as a defense ..........eeee. suueeRiatsecteateceusen 763 Fraud, words charging ...............eeeeen tas Zw Wtlnrnje iW auto Siete ees 691 Good faith, as affecting malice .......... Rec aeie Mihawieainewa tetas es 719 As Mitigation we aces ora ieictnns/sawstacnte ered dei escere eiwleieiew seth o elec asaNs 730 As affecting privileged communication*...............000+ 732, 742 PE VIGENCE! OF soc 3) sarees seansistaverera as w shiavaeg ere lavejetetg sige sale atsiwiud. Siete ai aielie:® 807 Headlines, not privileged ............ cc cee cece cece cree ee teseeees 761 FIStory of AGLONY scien oeiening a aieig ei eisis ew eika ealesia eee s eiaee6 651 Hotel-keeper, words injuring ..............ceeseeeeeee nse (tarate tare 674 Identification of plaintiff ............. ce eee eee ee eens 706, 801 Ignorance of profession, words charging...............+ee005- 672, 690 Implied malice’ .c..cccepsraveesseewy cenenss Sieweeseesneew ewes 718 “Tnducement” in complaint .............c cece eee eeeeeeeees 769, 772 Injunction, as to remedy by .........-cee see c ccc v cece cece cence 660 “Tnnuendo” in complaint ..... solaneie ev uncanee War onone a) ecasaneveunsatare 769, 772, 774 “Innuendo,” plaintiff bound by.......:... ec cee cee eee e eee 705 Insanity, words charging ............. cece cece eeceeeenenees "694, 695 Insolvency, words charging ...... sereisietene paces cela gpnaetlsah utara ule enckad 676 Inspection of booKS ........... cece ete e eee e eet e eee en enter eeecees 814 Interpretation of Words .........cseee eee e teens eeeenees 701, 704, 817 Joinder of action .......... ce eee tee eee eee eee eeeees. 229, 448, 620 TONE LOTT: LEASORS. oi ccosis acy tke slaia aware nin 8 cecyavep era ra rotandsahe se Ravers aielevece 766 Judges, exempt from liability................ cece eee e eee eee eens 740 Judicial proceedings, communications in course of, privileged...... 740 Report of, privileged ........... ccc cece eee cence cnet eee eees 755 JUPISdICCION: 3. wes enesga dented ekeknnemoerea eee és+esieeatnod when 659 Jury, power to interpret meaning ............ceeceececeeeees 702, 817 Justification, generally considered ............cceceeeseneteeeeeee 723 Scope: Off ....oscsxcnwaeear se raw eres c Menon eR eee eee aS. 724 Pleading of, as evidence of malice............eceeseesceeeeeee 728 Evidence: Of ansecead soar pei viccemeneee keaaadeads asses 803 Legislators, privilege Of ..........- ccc e cece cence eee neeeeeeee 170, 739 Legislative proceedings, report of, privileged ...................4, 755 Letter, what is publication of ............ ccc cence eect cence eeeees 708 Libel, generally considered ........... 0. sce cece eee cece ene e ee eees 680 Distinguished from slander .............. cece cece eee ee en eeee 653 Oe VEARESE oi ouenvanuet book n end amar Leak ies et ace Dag alee 831 Per se (see Words Libelous, per se). Setting out words in complaint .........0... cece cece eee ees 776 Tamitation, ‘statute: Of uicns ociucsnaia ten shed erga wioumeae oe 659 Malice, generally considered ........... cece cce eee e cece cece renee 716 Defined + scssinsies de peeeeemertage wisi woewaewn aeians er 716 Tn AW? cca cam aeeaaer ees Reais rete hale Bis lets av acac eye aeravaarssave 716, 718 Presumption of ...... eueeee Seulubn aware ns anew aw weed Bees 718 Dra aCe «sc iceeut ced sebicnsaw Seana ceonl seentaade. Load ate aveuaeal ec aeuc peaotodaeanake 716, 720 Actual, must be shown where communication is privileged...... 734 INDEX. 871 Libel and slander — Continued: Malice — Continued: Page. Evidence 0f gscccwawies aevesdauei cvaceee ead sigreaieieiecs spina totes 807 When shown by plea of justification ................0005 aes 728 When shown by repetition ............. 0... cece ceeees 721, 808 As affected by privilege a Raps aera gig ane ale Wie With Sale Rahaas MAR RBLE ee 732 As affected by truth of charge...............ccecceseceueeees 724 As aggravating punitive damage ..............ccceceeceeeees 828 Mechanic, words injuring ............. 0. cc ccceaccceeecccees 675, 699 Mercantile agency, words injuring ................cce eee eeeeeeees 693 Communications by, privileged ...............000c0 cc eeee 749, 752 Misdemeanor, words charging pclbminindgiiala paste sementhnsdneerces he Mistake as mitigation ........... 0... ccc cece ecu cnc eeeeeees 728 Mitigation, defenses in ........... 0... cece eee cena cece ceeecenes 726 OF damage: . sacx)2.s-s-0ie pa wae ata ts wie! soci srsaaredaraces wir wage eee 727, 828 Of damage, evidence in .............. cece eee cece cee ceeeaanes 804 Facts tending to show truth of charge may be proved......... 730 BY TeTACtON essed cowie eninn adreehnedans hsigiertapichats waeeiaed 730 Moral turpitude, words imputing ............... 22. c cece eeeeeees 664 Negligence of publisher ..............c see eee e eee e eens 706, 719, 729 News agency, ability: Of 2.0.0 ccececee seieesamnes eens veeewe ames 711 Newspaper, owner of, responsible for publication................. 709 (See Publisher.) New: trial) «. s2sassienwas Ganisie ee hee eursdan de ease wes aaee 820 Oath, charging false ........ cece cece eee eee tent eet eens 667 Office, words injurious to one in.................-.000-- easels 671, 687 POPtleS) oii cccse eatin ae Sates OR OAS ROR IO MEARE E OA Thane kuest 764 Plat cee sereasassrasvagsara erssw eva tereteveligaaiare austarsrere eeadessceinerag ayaneainnn 764 Defendant: #4. s.0.vssnins swarms snies soe sees cea earse eee TNGSs 766 To action, privilege Of ......... cece cece eee eect ee ee ennee 742 Perjury, words charging ...........0. cesses sence eee eee e eee eee 667 Physician, words injuring .............-eeeeeeees » 673, 688, 691, 693 Plaintiff, identification of ........... cece cece cece teen eee 706, 801 PICA ooo ae det giessenng de aac wen ala eee oe Bec peiiaiaoitsletoteiss tes 768 Complaint: a ....0caeiveev cri eres nes Tee Ka ce eer eee eee aes 768 Common? law rule: win exeice sca mais seinnreileeeeeieend alverstier 768 Code provisions ........ 0c. cce eee eee eee nee teen enenees 771 Necessary allegations .......-.00..cceeeeeeeee eee e eee e eee eees 776 Pleading special damage .........6--- see e secret eee ee ee eees 778 ADSWEP 4:6 dices Peres wos nes eee! EES HRA E Rie ieee Q eigen 780 Bill of particulars ........- 6. cece eee eee eee e recent eee eens 785 DOMULTER s&s: son ease Deed ers w ae wns aeede es eyian emeiavadla Sadvatreae 783 POPS) 6:0 sacnrmanwcnn weal cows aneenedd ess ewe ES COGS Wet DUK See 789 Pleading, amending and striking out...........:.e-seeeeeeeeeeee 814 Pleading justification as evidence of malice............+seeeeeeees 728 Presumption of malice .............c eee c eee ee eneeteeees tenons 718 Privacy, right of, not.protected by injunction...........+.sssee0 660 872 INDEX. Libel and slander — Continued: Page. Privileged communication, generally considered..... Slecieieaa ease Aion 731 Defined and classified .............0-e0eeue Crem aEe 731, 733 Absolute privilege: 0:06 ccuraw aie dw sw mews eone daww eieesinwe sere 738 Qualified privilege ......... 0... c cece eee cence eee eeeeneees 746 Privileged communications, classified ...%..........0. cee cece eee eee 736 Privilege, as rebutting malice ............... cee ec eee 721, 732, 742 When question of law .......... ccc cece eee eee eee 735, 817 Miscellaneous caseS ON ......... cece cece eterna e ee ee nee 757 PPVOCEC UIE? siniar aise Boletsnnsesceaus want veaesSuiv/ovanaud meacstonntvaas eusasosya ta eiadeaySuanecsmeassainin aries 813 Profession, words injurying one im...........-.e. eee eee e eee 671, 689 Property, slander of title to.......... ccc cece eee e cette eee eens 831 Provocation, evidence Of .......... cece cece eee reece ee enone 807 Public officers, privilege of .......... cece eee e eee ee cece ene e ee eeeee 739 Complaints to, when privileged.......... OC RE ROME e TENA 750 Publication, generally considered ............. ccc cece esse ee eeeee 707 Defined... .. ..dscccssscssanieeeisdes scenes syaia Riese tore 707, 802 Necessity? Of scisnscnociseiniendia a eaiies Giese he eMeee 707, 802 WEG 8) ross. cass treeertventan tunisia ove catasergpainteianerets prohevorauens Sb spdvasesavaneaavennva 708 How proved ........---2+-6- seenleaeeI Roki ce nne AH ates 712, 802 Publisher, responsible for publication ...........0seeecee ween neeee 708 Must use reasonable care ...........- cc cee ecco eens 706, 719, 729 Rules governing reporters do not exempt from liability........ 710 Repetition by ............-++-- in bnek ds wHdaaad ilecaueeaNoreneexe pexstaver Oe 713, 802 Not liable for repetition by others............... 0.0... ee eee 715 Fair comment and criticism by ............ 2... e eee eee ee 760 Punitive damage ......... isi depot oncal crgiuara ceheyaitonsnte dea domatevekcoaye oneenancitl 828 Qualified privilege classified ........... 6... ee ee cece eee eee eens 746 RGMOdICS: 3... sce neta e ets Maes Httee esas ees twsexane 658 Repetition, generally considered ................ jidieadomuaed 713, 802 As showing malice ............. wide saselspacivevnen cada Masta Guavend duu 721, 808 As affecting damage ...... ee ere be apatite: 5 sak 714 Of rumor as mitigation ......... 6. cee cece eee teens 729 First publisher not liable for ........... 0... cece cece seen 715 Evidence of ........... Senne center eee n ence tent eee eee ee 802 Report of legislative and judicial proceedings privileged.......... 755 Republication ©. - 2.0... cee e cece e eee eee e cent e ence eee nenes 713, 802 Res geste, evidence of .......-.------eeeeee eee ieee RNS eee 811 Retraction as mitigation ............c cece eee eee ee eens Asaeew Tes 730 Retraction, evidence Of ........... eee eee eee eens sista a uhiheterere aiies 802 Ridicule, words holding one up t0........... 6. cece cece ee eee nee 695 Rumor, repetition of .......... cece reece cece ees oe eem aren feed 729 Scorn, words holding one up t0............. cece eee eee rer 695 Servants, communications respecting, when privileged.............. 753 Skill, words charging lack of, in profession................... 672, 690 INDEX. 873 Libel and slander — Continued: Page. Slander, generally considered ............ ccc cece eceeeeceescetees 662 Distinguished from libel ........... ccc e cece nec e eee ence nes 653. Classes of slanderous words .............. eee ceeeeeeecueeeees 663 Qualified by explanatory words .................cc eee e ee eeuee 665 OMS: acrocgieumieainnctiatents abaarey Benes ac classuice Setter soe6Mae ede worded can meee nes 515 AMNBWEF, 04. e445 05 ewe San Ahoaees ad aeghled date Ooms Rien e 518 Bill of particulars ........ Nha pa wingismenate debe es aes Meee ERS 519 OVIMS) 2-2. 24 Gschinete Ae eee CIA oe Siete ad Stns oe Sarees we 520 Principal!.as party: soe siiiase dies ci eninw dees eicuane e's creak 513 Probable cause, want of, generally considered.................... 490 Defined :z, iehadw gk Sareunadaecs ee areas ale wae eet sigunegis.2 ARR OS 491 Want of, must concur with malice............... ccc cee ee eee 495 Want of, warrants inference of malice............... aire Yi 488 Want of, burden on plaintiff............. cece ccc eee eee 495 When question of law or fact............. cece eee cece eee 496 Allegation Of 4 cisiseseccesese er ewiiees eee. UTC eT TT Ere ee 517 Advice of counsel as affecting ..... EB ONS SYS cigs OM cei eNO 511 VIG ENCE OL. 5.5.2 aspapetiecets 3 S25 5 waasaasae bach eemdo Sadin Sra acos-aeaandoe 529 PrOCOMUNC 6. 6) wise iis se es wend wee rars wa taola tse gelomtn nae MAA Es Koei 534 Prosecution, judicial, necessary ............... cece eee cece eee eees 482 At first legal, may become illegal................. 0... c.caeee 506 (Compare FatsE IMPRISONMENT. ) Former, must have terminated ................ 476, 499, 504, 540 Punitive damage cisosy cesses Vaeev nee dw arees nes wesoew a eisacnware s . 539 Remedies s 20 das sac Ses ees tations eusnliuehie GA e-aywras eile dgiahag a Wed neR ee. 480 Replevyini2a8) .isivae ances uienie geese eee y ehianeds Aces go vlaucaeceeules 484 Saturday, malicious service of process ON...........ecceeeceeececce 490 Search warrant aS ........... is tbe ee ew saree i Sia. e fecarevendae ie alersiasismstes 400 INDEX. 877 Malicious prosecution — Continued: Page. Subpena, malicious abuse Of .......... cece cece e cece eee eee eens 544. Survival’of action. .cdas 2528 roe qeitntes samedi eeneaines shale wees 481 Termination of former prosecution, when necessary...... 476, 499, 504 ; 517, 540 Termination of prosecution not necessary in malicious abuse of PEOGCESS: oe cep sspniacdveceve: entcsuene Sad Revers dievalerardiowe oo: 4c4G.abiaraltotacd nays 476, 504, 540 Theory: Of “Action: .siedweenias Srewyares Seea seeks SER eS LuEEME cee 478 Trial, place Of svcsscesd sy econo rise deed es 4 aan eee sagen pam cided are 534 Marriage: (See also BREACH OF PROMISE TO MARRY.) As affecting action for breach of promise..................000005 373 Capacity to contract ....... 6c cece cee cece ens e eee eneeeees 375, 384 Contract in restraint Of .......c ccc cece cece cece reece cet eeeeaceas 379 Formal marriage necessary in criminal conversation, etc.......... 343 Fraud, marriage induced by ........... 0... eee e ee eee eee e eee ee eens 371 Promise of marriage fraudulent where former marriage subsists. 377 Ignorance of marriage as defense in criminal conversation......... 344 Offer of, by defendant in seduction.................. ees eeee ee eeee 329 Restraint of marriage, contracts im........ 0... cece eee eee ees 379 Seduction, marriage as defense tO............. ccc eee cece eee eens 314 Services, parent’s right to, terminated by marriage of child........ 306 Husband’s right to (see CRIMINAL CONVERSATION; ALIENATION oF AFFECTION, ETC.) Specific performance, not compelled in equity............-..0eeee08 373 Subsequent marriage as defense in action of seduction............ 314 Married women: (See WIFE.) Master and servant: (See also PrincrpAL AND AGENT; ATTORNEY AND CLIENT; CoRPO- RATIONS. ) Generally considered 1.0... ccc cece cece een eee eee e nen nenene 78 Chastisement of apprentice ........... 0. cece cere eect ener e eens 438 Defending attack on servant or master.......-.---+.seeee reece eee 424 Distinguished from principal and agent’ .........-.-.-+ essen renee 97 Duties and liabilities of 2.2... .. 0. ccc cece eee eee eet tenes 78 Employers’ Liability Act ..........ce eee eee eee e eee eee e eens 91 As joint tort feasors .............+.- Seat va pee ae eerie 157 Libel and slander by servant, when master liable, ¢: 2s sxeeasdexes we 767 Master, corporations aS .......---6 seers hoa By ohaala Dako beesninng ga doels. cto 112 His duties and liabilities to servant..............eeeeeeeeeeee 91 When liable for act of servant..........:ceee eee e renee eeeeence 86 Liable for assault by agent.........----- seer cece cece eee nen 445 When liable for false imprisonment by servant.......... 596, 600 Not liable for act of fellow servant ........+0-.eeeeeeeeeereee 94 When liable for act of contractor. ........0seseeereseeeceeres 82 878 INDEX. Master and servant — Continued: Page. Privileged communication respecting servant .......... Garcualennion's 753 Relation, when it eXistS cccsc cise tacecess ees owen ese chen eae ane, .. 80 Respondeat superior, rule Of ....... ccc ccc ence eee e cena eneeees 78 Seduction of servant, master’s action for ...........eese eee eeeee 307 Servant distinguished from contractor. ............0ececeeeeeeeees 81 Servant, fellow cwescsvaday yest i enkkeeess hoaGe ees eRe tees ata yes 94 Contributory negligence Of ........... cece eee ee ence eee e eens 95 Risks: assumed. bY’ wias0c cee siseers ePeleaaw sae saewes se aaewe ys ss 95 False imprisonment of, action by master ..............+0.+205. 612. Mayhem: As battery 3. vsdeoes Seca yetienwn se'swinteed eae epee de neg eeiemaew 419 Mechanic: Libel and slander on .........ccseceecceees eae hgoran ave Micon he corare 675, 699 Menace: As assault: cas soy tees seesinne 8064 bene Re ww eee Mews bee Tes 414, 420 Mental suffering: WHEN TEGOVERY LOR 2c. cciainse soa g sia eia so 5 emigre bleieis 6 6 eistaigsaie Sees Sista ieee 208 Caused by assault, damages for ........... ccc eee c eee e ence eeceee 467 Caused by false imprisonment, damages for ........ Aaa ee acaucrene 646 Mercantile agency: Communication by, privileged ......... cece cece cece ween eee ‘749, 753 Hibel MLA NSb fis cacccwiale soo Rela TSE MIA Aa VES SLES autaes Byesetaaie 693 Merger of remedies: (See REMEDIES; ELECTION OF REMEDIES.) Military authorities: AYVrest: DY: av cans sors wn tenwae se CeieNGkG oe Verein s Fab BARE scores 605 (See Court-MARTIAL. ) Ministerial officers: (See OFFICERS. ) Mistake: (Compare ACCIDENT.) In assault and battery . ..........00. sidGhiaieidicn a lNe a Sheen Gbvad’s & Kaze 413 As mitigating libel ....... sa eenceeeeves Sinheeass Soave RaSh oow es sla. 728 Mitigation of damage: Generally considered 1... . 0c cece cece cence cence teen eneeceneueees 277 (See also MiricatiIon or Damage in the various actions of tort.) Mob: Municipality liable for property destroyed by...... lesesehsh's.8 Gpwie Nese asec 138 Plaintiff participating in, is wrongdoer................cceeseeeees 153 INDEX. 879. Motive: {See Marice; Goop Farru; INTENT.) Municipal corporations and quasi-municipal corporations: ‘Page. Generally considered ...... 66. ccc cece cece ene ee seen ee seesanees 114 Agents and officers, liability for acts Of..........cecseceeeeeeeues 123 Assessors, as to liability for acts of ........... cee eee eee eee eee 133 Bibliography .. .......... PL cial ad sOUE AAS EWI DE-. 4 We ReR RARE 114 Construction, damage from works of...............ee ee eeeeeeeee 139 Contractors, when municipality liable for acts of ................. 85 Discretion, municipality not liable for acts involving.............. 126 Distinguished from quasi-municipal corporations.................. 114 Firemen, municipality not liable for acts of...................-045 132 Governmental functions of . ......... cece cece cece eee tee eeeenee 115 Health officer, municipality not liable for acts of.................. 133 Highways, municipal liability for ........... 0. cc cece eee eee eee 129 Improvements by municipality ............ 0. cece cece eee eee ee 128 AS joint tort feasors............ ese cece cece eee eee deem eRe 227 Judicial acts, no responsibility for ............. cece cece e eee eee 126 Legislative. acts, no. responsibility for ...........0..e cece cece eeeee 126 Liability of, generally considered ..............-eeee cece eeees 119, 120 Ministerial duties, liability of municipality for .................. 122 Mob, liability for property destroyed by.........ccceceeeeeeeeeeees 138 Officers and boards, ‘when municipality liable for acts of........... 131 Park ‘commissioners, as to municipal liability for acts of.......... 133 Police: officers, municipality not liable for acts of...............05- 132 Political and corporate duties distinguished....................46. 121 Powers, public and private, distinguished..................0e seen 122 Property, municipal, liability for use of.......-...----. esses eee 136 Liability for injuries to 2.1.0.0... .. cece cece eee eee eee eee 137 Quasi-municipal corporations, liability of.............---2..++---- 116 Repairs, municipal, duty to repair............eee cece cece reece ee 128 Streets and highways, municipal liability for...................... 129 Tax, illegal, recovery Of .......... 0. eee eee eee eee e ence ence enees 135 Tax collectors, as to liability for acts of.........---- cece esses eens 133. Murder: (See ASSAULT AND BATTERY.) J USEMRED ose. Sacce sc cignneda GINS BEBO 6 MwA SE BRlemale eee malM goa ve 425 Necessity: Acts of, exemption from liability. .........-.eceeeeeeeereeeeceenne 189 Negligence: Assault combined with ...........ccece cece eet eeretcees 412, 449, 463 Contributory . 2... c cece cee cece eee n cence ence ene eeee en cenes 95 Of fellow servant . ........600. cia alan Members, SORIA TOS RR ERIE CES) 94 Im libel ...... ccc cece e cece cece eee eee n cence ne eensanee 706, 719, 729 880 INDEX. Negligence — Continued: Page. Master’s liability to servant for...........seeeeeee asad ge: Wrasatoie a Giue 91 Master’s liability for negligence of servant..........+¢-seeeee -o-. 86 Of municipal corporations (see MUNICIPAL CORPORATIONS). OL public: officers: ness es pxsiginn oeisciearaas goa ewiniaie ds lsledieree 6 Secaueeeie’s 181 New trial: For insufficient or excessive damage...........secsceecrescecscens 286 Nolle prosequi: When end of prosecution .......... cece cece sree eee e te envescenee 500 Nominal damage.......-sccccececseeccceereeceacrseneens unos eae 270 Nonsuit: (See CHARGE. ) Nuisance: Abatement of ......... arte iose 0:01 0yaveia'sases8ra fal eCaraueun 8 So/ana! o°eierb ala. aypraieKere avers 202 ‘Obstruction: Of ingress not assault ...... 4 ve eineew enews a aielees a apie se eRe Yee 421 Officers: (See also LeGISLAToRS; JUDGES; PoLIce OFFICERS.) Executive (Chief), exempt from liability................0ecceeeee 169 Libel and slander of public officer................ cece eeeeees 671, 687 Malicious abuse of process by............ ssc e eee ee cence er eencenecs 541 Ministerial, when protected by procesS.............ceceeeeececece 185 (See Process.) Of municipal corporations ........... cece eee cece cence etennees 123 Of private corporations (see CORPORATIONS). Privilege of, in libel and slander................. PERM ela ice war 739 Privileged communications to ...........ccscceececceesveserceees 750 Public, limited by his jurisdiction ................0. pamaigiale epaien 181 Malice 10 ia vissan soe acne: s 6s sarees pad ye bale es HORE S SeR IRE Bia: oe ways 181 Critieisin: Of asst eases tied es se Sane ss ene ee aes eisiite’ e Shaca ea aye 760 Of State, cannot create liability .......... dS00 Seesieee ce nnaewaves 166 Parents: (Compare INFANTS.) Action by, for abduction of child.............. a sWieleletele Soetae cimsiechs 287 For assault on child ............... stisuahbearste Hidiole ena shane 3% woe. 443 For injury to child .......... cc cece ccc ee cece ec eccccnceseece 53 For seduction! ¢.cusie.ncs sccinin te 29 ee wayecsca-a a's gidea vio viiees eb a-uiee 298 Action against, for enticing away wife and alienating affection .... 347 349, 352 Chastisement of children by................ ivddlea Sidi tae vaw 436 Liability for torts of infants............. 0... cece cece eee c eens 52 Parental objection to marriage as affecting breach of promise...... 385 Services of child, parent’s right to......., 53, 287, 289, 308, 326, 443 INDEX. 881 Parties: (See JOINDER OF PARTIES; JOINT TorT FEASORS.) Page. Death of party (see SurvivaL oF ACTIONS; ASSIGNMENT OF AC- TIONS.) J OMMOE OF is. ogc stesso entre eee Ne Gers ss Ganae Oe a BOee yeaa E 223, 225 Joint: tort: easors case s.ie v5-s secs so etedia soe sialon. ge eimai do's erase waive 156 Parties to actions, privileges of, in libel and slander.............. 742 Plaintiff a wrongdoer, effect Of...........cccccercccceccssecceees 153 Privilege of parties to actions .............see eee e sees eee e ee eeee 742 Parties in various actions in tort: In abduction Of children ....s0cceseeesceuneceesseecnesmetens 387 In assault and battery aise Ti Seaialegial Bre GBI ww Bie Sater aides 6 Gimeno BETS 442 Breach of promise to MATTY .........ccceeenecceneeeeesenees 386 In criminal conversation ...........c scene cee cnceecerees 338, 349 In false imprisonment ........... ccc eee e eee ee eee e ee eeceeeees 616 In libel, and slander iccic5 ess csiscans scueae se caseesue seaneacys 764 In malicious prosecution ........... cc cece cece cere cece eeerees 512 In seduction ..........cecceecsees eidis oa HCO TA ESTEEM EES 314 Various classes of parties: PA RONES 55: iterelarrorae ha weslge belive slags homie Glee duadsbiaas Mapa va nie 96 Administrators and executors (see SuRVIVAL oF ACTIONS; AS- SIGNMENT OF ACTIONS; DEATH, ACTION FoR CAUSING.) Carriers: 6:05, ssw saieteush esa ntiweeua's es aatleeude-neid accuses 67 Corporations, charitable ...........cccesccecucseceuceeenceees 140 Municipal 4:01, setae Wee! ewheu seed weee cexaiee verhees 114, 118 Quasi-municipal .. Lc... cece cece ccc e cece cece cence eees 116 PEWA CG reo. eareis nasal gd» Sieve ob 44 oe Mew ea aloe ees eae 111 > ADEUMKG TOS 4: ssi, areca! oe oie efopare 6 a. ayaverateeua'e 44 es ee B08 Greenvale ave Sid's GK 62 EMER TVS 5555 chsiecec so. Gk sogsnsteasa :a-'ie aleve ie oles aia Weslo easels oes 46 Innkeepers .. ..... ee as Rane aes tei a) 28 «O98 besiege ae oe eee 63 Judicial officers . ..... cece cece cece eee e ccc eceeeccenece 171, 175 PANCION 5. os Sesser akg tA Ga wielelaeeesie es wy muir tal neuen ban 102 Lunatics: 0 saws eas peewee 0a WERE EE AoE wb RAMAN A Seiwa e we 60 Married WOmeD. «3 s.ii.0ac:ie05 8 siainare 4 «tigate sine ktews ¥ 4A wKS OR eee 54 (See also Wire; HusBanp.) Master and servant ..... 0... ccc cece ccc ccccccccrecersvecs seer 78 Partners oa eases viens sleet fe Sip ies V8 ielied aitieia ¢ aravnacana gene 107 The: People» + cis 23 caves cals aia seastecieineas queens) +... 200 Principal’ 2)p..scsasas Movies sie Angee sv eaaernes Bilasaieie «aah oieoae - 96 Receivers: sc aussie i sa eiaescccae ceeaeasees evar alanasale Rdtovettetdena » 152 State: a: sce iscewe ss cme esis aretelss S's RO SEW.S SEEMS s 0 chile canaeeex . 165 Tenant . ......cceeeeee wees 9b SiatalWe 0 wieleisie ve: 08ele 3 vasere 8-0 b eheeacee 102 Partners: Generally considered aya oe sae Bios Bib wits vaiend Sie uckaqeiee ts os evaceses 107 Joint liability of 1... ... ccc cece cece ore ee ee eatin 107 // Agency, principles of, applicable to ............eecceeee ia sisiarejeess . 109 56 882 INDEX. Partners — Continued: Page. False imprisonment by .......sccccccccccccccccccctsssesccnseees Malicious prosecution by .....ssssscesseccececcccessceesacsceenes Pass: When carrier liable for injury to passenger traveling on........+. Passengers: (See CARRIERS; CoRPORATIONS, Assaults by.) Carriers of, liabilities of .......... ad a auaiorw obs aiayena’ aa, 8}ateie # Byataterae aere Duties of . ............ Hwy btu ile ohavatuislag-s lo ny a case (oi ate cectefocaieh vig ioe Duntons Sacer Gratuitous . ...... aie S'S 's aia 6's sieaatiets a Stay eiSiieie a 9 bre @os wale Sere 6 etewire e Sears Peace: Preservation of ..... eeatedee syels Sie ebe-aas ee se tuiahis a's ofscoze Yerba :eiele’s(eieue evsiare (See ASSAULT AND BaTTERY.) Breach of, arrest without process for........ssssaseeeesseee-eeeees Penalty: As measure of damage........ anne ee ce een renner sens cececencene Performance, specific: (See SpEcIFIC PERFORMANCE.) Personal representatives: Action by, to recover for death by wrongful act (see DeaTH; As- SIGNMENT OF ACTION; SURVIVAL OF ACTION.) Pleading: (See also Forms.) In abduction of children ............... oiaass 40% In assault and battery ......... CGN Sea REMIT hcarpin ition aay ey eincionet eu's In breach of promise to marry......... eepeedocock aieiaKs svete 3> aide eis: a wie In criminal conversation, etc........... 2. cece cc enne cece sae Saar In false imprisonment .......... 0c cece cece eee cc seee ee eeee slates In libel and slander ...............--.005 eehde la: paiva eee In malicious prosecution ......... cece cece cece cence cee eeeneenece In seduction ....... espace a aioe aise 65 FAY Sets Poisoning: As assault ..........4. ys. aici Gois sev ofoiata odeterstaralalavganees Se sasbate Bios e wastes Laudanum, wife’s affection alienated by ............ Pe bieotdionade 4 breton Police officers: (See OFFICERS; SHERIFF; PROCESS; ASSAULT AND BATTERY; FALSE IMPRISONMENT. ) Arrest by, without process ........ccccc ccc ce eee ee sc ceeneseeeces On complaint of private person........... cc cee eee e eee e eves Assault by, when justifiable........... eee > CESS ciate Sitsang ava Malicious abuse of process by........ Bias bhieiota.a ain. Gualord ae sheeeesveate: Setaios Municipal corporations not liable for acts of...... Raves a Sia, oder Process as protection to ..............00.0. os aes Hawa yes maele sd 600 513 76 74 75 76 438 568 281 386 354 417 347 570 573 44] 541 579 INDEX. 883 Police power: Page. Defined ...... eee n ewe w eee eererenncenessceresescesctesseseves 17 Political candidate: Criticism of ....... 9 esa lS id, 616 Te wise Giese ele Political rights: (See RicHTs.) Practice: . (See also REMEDIES; EQuiTy; JUDGMENT; JURISDICTION, and refer- ences under various actions in tort.) Arrest pending action ..............2eceees o 2a Wietenea da AS te since 241 Arrest, discharge from ............... Misi dee mea eet -. 245, 246, 247 ACTACHMONG: o's cidecce, ceesabuencsetvawe ula ug Ou NeW aids oe eee a aaieed awa ea 240 Bankruptcy, effect of discharge in............ i a4ae eeee. 248, 249, 251 (See also BANKRUPTCY.) Code, form of action under ............ccc ccc eeee ens Web Baebes ave 12 Costs (see Costs). Criminal action (see CRIMINAL ACTION). Death of party, proceedings On.........ccce cece sccesecucetcesens 149 Equitable relief (see Equity). Execution against person .........ccseeeee secs cs eens eteetcneeees 243 Discharge from .. 0.42 scuses ssw essa e's tee 808i PEPER se dot 245 Habeas corpus (see HABEAS CoRPUS). . Injunction (see Equity). Multiplicity of suits (see Equity). New trial for excessive or insufficient damage............ Six saranetas 286 Rights, method of enforcing ...........eeeeeeeceeecees Recsseis cm erapane 239 Specific performance (see Equity). Trial, exclusion of public from, in certain actions........ 331, 367, 463 Pregnancy: In seduction .......0.cccsccenesccecs sucteesle tele naaesos oldidia'n steavstuepe 305 Presumptive damage........+..+: cig meee ae Kei sa ae Negiamies ates 29 (See DAMAGE.) Presumptive malice ........cecseeeeeees wis signees wane saeek waves: T1S (See also MALICE.) Principal and agent: (See also Master Ann SERVANT; ATTORNEY AND CLIENT; CORPORA- TIONS, and references under various actions in tort.) Generally considered .....ceeecccececececerecercennsseenseeeseens 96 Agent of corporations .......c ce eeee cece e cence een eee te ee tees avg LES Agent, liability to principal .........s.seceeeseeeerrererseecerens 100 Liability of, to third persoms........eeceserseeeeeeereese 96, 227 Funds diverted by ..... guaveid ieie/doadlig eo eeee OE Gee sew aorietewen 101 Powers and. liabilities Of... ....- cee eee e cece eect rece eeneeeees 96 Agents of municipal corporations........ gee Batata oo 6 VASE So ereeo 123 884 INDEX. Principal and agent — Continued: Page. Distinguished from master and servant...... Sion ageteiedia-e SeOleie- ss aistnees 97 AS Joint tort: feasors sis: sdinciices's cyaeisw vis sersieidieg w seleie o's Sele wees 227 Privileged communications between .......cccsscccccccecceseseees 748 Principal, when liable for torts of agent...........2.ceeeeeeee 97, 227 Principal, estoppel Of .........ceccecceec cece eeeteeeneeeeeeserens 98 Principal, liable for assault by agent......... ccc eceeceeeeeneeees 445 Instigating malicious prosecution ..........s2eseeceeeeceeeees 513 Ratification Dy .......cccc cc cccecen cece ceerererecereceeeeese: 98 Rights as against agent ..........cscececceeeceeenccen cence 100 Right to follow funds diverted by agent.........0....ceeeeeeee 101 Privacy, right of .......-..+ cla diaigats's'g clnlewie/s poetogsiae suum seas ane 661 Privilege: are (See EXEMPTION. ) Privileged communications: In libel and slander .........ccceecece iS eseceiatsrcecinse Biienydua heen 721, 731 Deitel 26. 25s x. sisinssiis Sie: sos eerste tage Sarai Sroete ss oe ig sete-9 Gee waa asagalndee raison Fa 731 Absolute privilege ..........0cceeeeeens Ho pe PERE Weplgh ees ead 738 Qualified privilege ....... aeceiie SbaieW eas Oa piNwide deiSalgere Ra eon 746 Privileged persons: False imprisonment Of ..ccsccscsccccccccsecerscesccescusseene oe 614 Prize fights: (Compare GAMES.) As assault and battery .....seeccccseseccssees ee pw lS Slee slostoruls's 431 Injuries In: sic0cesess 6c sess aie: 86: ay OCRUGIG saa 6 BRS eTEis. OS Scouse lever atatons os 198 Spectators at .....ceeeeceeeeeneeeece once cena e es eee ressenenens 431 Probable cause: (See Maxicious PRosecuTION; FaLseE IMPRISONMENT.) Procedure — reformed: Form of action under ...... siosa. Sd aralaleae ely osu wie eslaaicelew’s Salaameee s+ 12 Process: (See OFFICER; PoLice OFFICER; FALSE IMPRISONMENT.) Arvest; without) 24 c.cjiduiied vied Qoabome ne skeen sf aenteg oe ded wa emeen 567 Assault Im eXecUlINg cases s causeme ds ce seeivs soso edie aes ctes Gaes 441 DGLECES) AID ied. § caas set eress: SoS Siac oe eos aeons se # Pewee Melee 187, 575, 579, 580 . In false imprisonment, when necessary to set aside............... 566 Judicial officer, malicious abuse of process by...............0ceees 541 Jurisdiction as affecting validity of.......... 0... cc cee cceeee 187, 576 Malicious abuse of, generally considered............ccccccececeece 540 (See Maicious PRosEcUTION.) Malicious abuse of, defined .............0ceeceece . Sratohat tix etaudcak 476, 540 Officer, when protected by ........ SNe eae cull ted 185, 575 Void or invalid, liability for arrest On.........ccccceeceeess 187, 575 INDEX. 885 Profession: Page. Words injuring one in .......ccccccccsscescccrccreassereces 671, 689 Property: (See Lanns.) Action for injury to, SUTVIVeS 1... ... cc cece cece eee eeeeeeeeteceees 144 Action for injury to, assignable............... Be basins de iene aoe 150 Assault against ....0.6sicneisccenweescecees digie Meme e BS Aves. 3:5 ce 413 Carrier of (see CARRIERS). Conversion of (see CONVERSION). Defense of real property .........0s0e00 eeeeeee fe ga fas onstere 202, 425, 610 Defense of personal property ....... cece cece eee eeeetececeeeee 429 Destroyed by MOD ...... ccc cece cece ee eee eee teen eee neeenees 138 Ejecting trespassers from ..........c cece e eee ence cece eee eeees 425 Execution against, malicious (see MALIcIous PRosECUTION). Injury toy debnéd 2:2. nisdind < moan aie d oainineinie teleene sieia megs see eigen bas 280 Joinder of actions for injury to ........... cece cece cere eee eee 229 Joint owners of, must join as plaintiffs........... cc eee e eee eee 223 Lis pendens, malicious filing of (see Lis PENDENS). Municipal, liability for use Of ............ cece ees ee rere eee enes 136 Duty to keep in repair .......... cece eee ener eee cee e neces 129 Municipality, when liable for injuries t0...............:eeeee eee 137 Necessary destruction Of ........ cece cece e cece cece ete e eee eaeees 189 Recaption: of & :14a0ssasaee 14 mie ca nhes nana eee se oss Guonene 428, 429 Several owners may join as plaintiffs .............. cece eee eee 223 Slander: Of title t00 coi. c.ccow is dows eee ea des be see ed Sead oa peas cs 831 Prospective damage ....------. ce ee cece eerste cence ree tn ee eeeeens 266 Provocation: In assault and battery .........cccccsccsccnccresssscceseeecees 434 Evidence of, in assault 2.0.0.0... . cece cece ce erence eee ereeeeens 456 As mitigating damage, in assault .........eceeeseeenereceereeees 472 In libel and slander ......cccceceeee cece cer eer eeteessesanenes 809 Proximate cause: (See CAUSE.) Public officers: (See Orricers; Jupees; Police Orricers; LEGIsLAaTors.) Publication: (See LIBEL AND SLANDER.) Publishers: (See LisEL AND SLANDER.) Punitive damage ......-..--+> sipedaeid Hise ¥ PAWN s MECN Sa eee ec eeeee ZEB Quasi-judicial officers: (See JUDGES.) 886° INDEX. , Page. Quasi-municipal corporations .........ccccecscccesccecccececces 114, 116 Railroad companies: (See CARRIERS. ) Rape: (Compare INDECENT ASSAULT.) As assault and battery /................ subsasevaneliiaytvenevens asad atbanieuscav 418 Action for seduction lies for 2.00.0... . ccc eee e cece eee eee .. 305, 316 Evidence in civil action for ...... ic Caveats craceienepaienentesare cssaieuieuentconsacuteeaees 458 Damage f0Fr' <0 gwwon ayeakatsauetiowslotawerd de bDicieinaeecty weawrarsiaals . 469 Real estate: (See LANDS.) Recaption: OF Property wes jcc scnadardiene Relhas Warnes ha scone Sa ging bier s aieeas 428, 429 Receivers: Rights and liabilities of, generally considered ...............45 «. 152 Release: Of one joint tort feasor releases all............ cece cece c cee eene 160 False imprisonment, release from liability for, when valid.......... 565 Action to set aside, may be joined with seduction................ 319 Religious liberty: Heil Tim amimaseesdapeumaunee jceammoe nian ee Renaectiaefotobon 22 Remedies: (See also AcTIoNS; ELECTION or REMEDY; ‘PRACTICE; EQUITY.) Generally considered 2. ccc cc cis i aces ede e tse n eee eeeweenesreuneas 200 Abatement of nuisance . 2.1... 0. . cece cece ee ee cence eee ee seeenes 202 By act-of parties: 20.0 as dsigaycansne dees saan sewelrad anaes Senne BOL Action for damages ......... cc cee cece cnet e eee eneneeveenenens 207 Civil and criminal, not merged .............0 0c cecseeeceuceecues 200 Civil remedies for wrongs considered ............0.cccceeeeceecs 201 Damage may be recovered when legal wrong committed............. 207 Defense of another ....... spoaeaes me dmanervagrciiane davewnneneoterseGiecens 424 Defense of property ...... sielalauaianavetens ay etero re aha SSeS hgh onct aces 425, 429, 610 Election of remedies. ........... ist cecava sassesiars sieges nawinnraseaise 218, 220 Enforcement of . . 2... eee e ee ence Said erie Ae HAREM RRR aes erees 239 Equitable: relief: x: scares sacs ce set honda hacd ees ona diene selshon 204 (See Equity.) Inconsistent, plaintiff must elect..... ay SIU AEY Lennie ena ouann arene mings 221, 222 Law must give remedy ........secccesees neces sect eceesceceeuucs 29 Mental suffering, when recovery for ................006 aecniasveee ine 208 Reéplevini «6 cisesiwiwswwedwited vedere neaieaiacon eyeldiss pietigisl we eine ee 203 Self-defense . . ........45. err th avis a eg sehragerage emiewnmmetee dots stiaaes 201 INDEX. 887 Repeating libel: (See LIBEL AND SLANDER, Repetition.) Replevin: Page, ACCION:- OF 4.4, ie eaiedns seis wane desc cece eee eecarcccceseeseeseees 203 As malicious prosecution .......... ae See Sweee sae edecediedsessoves 484 Report of legislative and judicial proceedings: Privileged « «4 seasiaceensdedans sence en easceeccceeenccsseeees TOD Respondeat superior: (See MasTER AND SERVANT.) Rights: (Compare REMEDIES; PRACTICE.) Civil rights, generally considered’ ............0... sWeiwrewandaase 14 Constitutional rights .. 1... eee eee 16, 17, 19, 20, 22. 170 Citizens, privileges and immunities of ............. SaataSweesoaeas: LT Due process of law ............2000005. as shah aos buinie pie erarare ulavavewled 19 Enforcement of rights (see REMEDIES; PRACTICE). Legislators, constitutional immunity of .............. cc cece eueee 170 Legal right must be violated and damage ensue to constitute action- ADIGE WON eis. cease a dais Veale Leeda bs cae eedmediea bear ewaes 24, 26 Legal right, exercise of, creates no liability.............. 38, 193, 487 Malicious exercise of right not actionable ............ceccescuees . 487 Personal security, right of 1.0.0... . cc cece ccc ccc een eneeeeees «+» 407 Political ‘Tights s).:<. 3.0 fuss Sesana sews esuidee ss ge ea Baws sbateeeaeee +. 20 Privileges and immunities of citizens...............ccceeessccvces 17 Privacy; Hight OF 4 wisest oe euies Oe waus Concer ea SUEY BHO seeveee 661 Religious liberty . .....cccscceseccccceecceseceteteeeaes ceeeee +. 22 Riot: (See Mop; Prace.) Satisfaction of judgment: (See JUDGMENT. ) Saturday: Malicious service of process on ...........005 sesporscccsvccccccee 490 Search warrant: As malicious prosecution ........eceeeeeeeee se eeecescccccecvccee 483 Seduction: Generally considered . ..ccceccccccececcesacvccrsssseseeseesenses 298 Abduction of child aggravated by seduction .............. 620 eee 292 Age of woman, effect of ..... IScavaila 9) siayenes¢' 9 Wiela.e 0 w Gieinie 3,555 eae oe sie orere's 311 Aggravation of damage ......cceeeeee cect ret eeeeee eevee eveees 335 Amount of damage ......cseeece cect eee c ee teseressece eis 9 a ocsae 8 335 Assignment of action ....ccccecee sence teen cece et eereeneernenns 304 888 INDEX. Seduction — Continued: Page. Breach of promise to marry and seduction distinguished...... 299, 372 Breach of promise to marry, seduction as aggravation...... 372, 394, 403 Character of woman seduced, evidence of ......-..+.-+.++0 actin 328 Character of the plaintiff, evidence of ..............e eee seen Bude 327 Character of defendant, evidence of ..... fae sa awrdinjan sionals oretemr Atel ove ener 327 Charges) vances ds decee spomtes setewe se Wee cade beens 4 aU eae hee 331 56) 9.20 C10) | a are ec 303 Compensatory damage . .......... eee c eee c eee ce cette teneeeee 332 Connivance of plaintiff as defense ......... 0... cece eee eee eens 312 Connivance of plaintiff, evidence of .......... 0. cee cee eee eens 327 Consent of woman as defense ............ ccc ce cece cence ceees 304, 313 OSU tac" davai Sam eines dove euevaria eine tees Seyageieces Mase ee ees Me A ayauid ave se 332. Criminal! sctiON: 6 osc os aaa hae eimeigieia craw e's eieyed Wine ava arte gave ts 302. Damages, generally considered ........... ccc cesses ween e cee eeas 332 Defenses, generally considered . .........-.....005 scatei@ alee! oiaGe sarees » 812 Defined and distinguished ................. cee eeee seeeees. 298, 372 Disease caused (by 6.3504 aneav o54 Gade os anes dee ve Mieee eee ba So 310 Disgrace, as element of damage ............. Sig Syetinde 6(e, Mieke lasordraastare 3 305 Elements of the Wrong ......... 0. cee cee cece eee e sence eee eer neces 304 Evidence, generally considered ........... 0.0 cece eee eee e eee eee 325 Financial standing of the defendant, evidence of .................. 327 Grandfather, action by . 2... .... ccc cece eee cee tee eee eee e eee eens 317 Gravamen of action. ........ tA secemry Sass Beaune hu RPuRe Dees aMO Da NBAC res 301 Ground of recovery fictitious ............ cece cece ee ee cence 306 Guardian, seduction by ........... CHEEK MORES EDEE SE LSE Hs eare ess 314 Indecent assault, woman’s action for .............. . 314, 316, 430, 469 (Compare Rape.) Infancy of woman, effect of 2... ... ccc e ec eee eet e cece cence ences 311 UAT ISGICEION fe cope suse? acd lete'so 5 say bu tuaates leases suis igt p Dh ayedatiendia a ‘oy boa levee presale aoe 303 Limitations, statute of ............ cee eee e cece eens sige Sedat 303 Loco parentis, those in, as parties..............eee eee eee eens sees. BIT Marriage, seduction under promise of .......... ccc eeeeee ee eeees 302, Marriage as defense ...........0.s cece eererereee ited ee eeni ii aad 314 Marriage, offer of, by defendant, evidence of ....... See tra RS ae albes 329 Master and servant, relation Of erent ie aise Caaeiine ai Seed .... 307, 309 Mitigation of damage eee ee Mother; ation DY 5 2. p2ieihs ts arni sd be aidenie teelees bare k gn unowae SY aoe 316. Nonsuit) « & dis sod ss eeiawaktye Boao r het verdes sae ie aueeaeseny BBL Offer of marriage by defendant, evidence of ...........cceeeeeeneee 329: Parents as parties .........esseee ee eeee oMbe Pigg tara ater eels scbate 316 Parties, generally considered ..........0 ee cece e cece cece weet enone 314 Pleadings... se ced oawlede yosinies vias pew ye aisles aa aeee sean Fae 6 318 Complaint . ............. URS dus hy seae aoiaravaatuass xeon Olde ha 4 318 ANSWEFP sh 222 teg aes s feet eetaw sag SOON Ss Saale eww Y PASE oS ¥ 319 Forms . ...-..... aogearauanatbnese 3. divans eanayousvese dala nyt Peta aa eee 319 Pregnancy, effect of ......0:seee cece cece cece e eee ee tees seihuanadesaelie 305 Procedure . .....+-++ iy ele See Ss VG s Case ty ele eae a aie eas 331 INDEX. 889 Seduction — Continued: Page. Promise of marriage, seduction under .....cccceccccccecsscsccces 302 Promise to marry after seduction, binding ..............e.0e0005 380 Punitive damage . ............0.45 ssacatsus osausete re ei eroieergvevauave auele piemicuie 334 Rape, action for seduction lies ...666.........0000% Wrage sree ee we 305 Rape also gives action for assault and battery............ 300, 316, 418 (Compare INDECENT ASSAULT.) Release obtained by fraud may be set aside in action .............. 319 Remies:. ..wivgs acer edmnt tt pte sanses snes ipuicersaeneaene cies 302 The seduction, as element ............ eseeeeee Re ce 304 Seduction, evidence of . ......... Flava. Giawe: (a) ehehcakcvias 6 ian diStaeiierehcar'e yor sie a asad 326 Services, loss of, theory of ......... ccc ceeeeseeccceteeees 301, 305, 308 Right to, evidence of ........00..0000- Sis pisiese, Wis rine; sc pes seats 326 Stepfather, action by .........0ceececereeee SRW Mihiess saws sta BLT Suicide caused by seduction ...... caw wea elated asion & exper aiaigieie 306 Survival of action ........cccccecccccsceecceceeeenne Bie Brae te 8 eect 303 Theory of the action ...... cc. cece cc eeee cece terete esceeeesessenes 300 Trial, public may be excluded .......+.--+ee:eeeeeee wise peeaie Nations 331 Unchastity of woman as defense ............ceceeeceseeerceeeess 313 ‘ Violence, seduction with, analogous to trespass ........ Sietea vanes BUG (See Rave.) Woman seduced as party .......ssseesceces oeisiee cee se a bidieterg eects 314 Self-defense: Is a legal right ........eeseeeeeeeecnees o ceeeeeonerces solute siete 201, 425 Self-defense in assault and battery .........-. sesecseee. Saieeaiawes 422, Defense of another .........cccccccrcccccccvcess aidueteece eiviers wk Gets 424, Defense of property ........-+.-+ bees oeenais's seeniet <5 202, 425, 429, 610 Separation: No action for enticing away after .......-.+0. siaaaee eccecccecvees GSD Servant: (See MAsTER AND SERVANT.) Service, loss of: (Compare MASTER AND SERVANT; PagentTs; INFANTS.) Abduction of child, parents’ action for loss of services.........- 287, 289 In alienation of affection ..........:2 ese ee eer r ee teeteeenscenenee 347 Assault on child, parents’ action for loss of services...... dreha Sanelaiten 443 In criminal conversation .......¢..eecc sce renee teeereeeeonees 339, 344 Enticing away wife or husband .......-.-+++seeereereereseeseeess 349 Injury to child, parents’ action for loss of Services ...+--..ssee--e+-- 5B In seduction . ...-..c cece cece eee c seen eeerreeeeete 301, 305, 308, 326 Sheriff: (Compare Process; OFFICERS; POLICE OFFICERS. ) Arrest of privileged person by sngg S Wiatine welaggiwiens ara nayesss TTC Ke eeeeee 615 scharge of person arrested by ....-++-++eeererreee siigigs Ga nawies 246 9 890 INDEX, Sheriff — Continued: Page. Extradition by, when wrongful ..ccccccerccesscccseccssccssecesee O84 As joint tort feasor ....... a bala SOOKE dew as arias oS seocccee 159 Liability of, fixed by Code ........cccceeceeeneeceeceees seecceeees 184 As to acts of subordinates ......... cece eee e erence tesieeeseees 185 Slander: ‘ (See Lise, AND SLANDER. ) Slander of title -....... Biba Rare eH ES OE Sowa a A Se eS tsvewics eae SST Sovereign: Cannot: be: Sed) aainreis é-o sree bien: e:c:aiminiois wisleinie ns Sas 6 scatwre s eines veins 200 Special Damage: (See Damacr.) Much he pleaded 6... \adescownaaneerencens aimed: Aupuiedeab tigen, BEL Specific performance: Promise to marry not enforced by ...... ics tea eh ctaaen seas seceeee OB Speculative damage ........... A oe seek eee oceania 269 Spitting: ‘ie In face is battery ........ccceeceeoeee aie 08 4 AR oa eS esis secretes AIT Sports: (See Games; Prize Fieuts.) State: ; Acts of, generally considered .......ceccesenecereneenrecens a ayers 165 Acts authorized by, create no liability ..... 0... 0. ce eee eee e eee eeees 196 Consent to suit DY 2... cece cece ence ences nee e ence teen en ne eneetees 166 Court: Of Claims: i cise si eses es sie CAs e ae ae OES RE i esaiewls 166 Exempt from liability 2.0... . ces cece eee cece crete ee cece eeeee 165 Statute of limitations: = (See Lim1TaTIons, STATUTE OF.) Statutes: Act authorized by, creates no liability ....... 0... cc cee eee s ee eeeee 196 Damages set by . ..... cece sees cece enc serce renee ence receeeers 283 As protecting public officer ........... ce ese e eee cece ec enereers 180 Unconstitutional, arrest under ......... 0... cece cece eee ene i relate 584 Violation of, as negligence ........ de Bn¥, ai aig abe re iad a cetah aiay‘eia ba etietadalere es « 155 Streets: (See MunicrPAL CORPORATIONS.) Street cars: (See CARRIERS.) Subpena: Malicious abuse of ..... WEE J binleee 844 HT Ta RTE RS ee Be ae «. 544 INDEX. 891 Suicide: Page, Caused by seduction .....cccscccscccsccsscccgncccsoucecesceserss 306 Sunday: | : Injuries occurring On . oe ..eeeeeeeevcccccccsecccscesneccecusesss 155 Supplementary proceedings: Illegal arrest in ..........- once ence eece eect cece ecsceceeasese DOO Survival of actions: (See ASSIGNMENT; DeatTH, ACTION For CAUSING; also ACTIONS.) Generally considered . .........2005 @ S Sisiew Leeinew sidGienacs Seni wae. LAT Assault and battery . .........eeeeee acalauaieres sietane Sletale, ee ecescaes ». 410 Breach of promise to marry ........... ieee 6 eee caewed tales vaaie: BTL Corporation, civil death of, effect on action .........ceceesseeeses 660 Civil death, distinguished from physical death.........ccsccseeeee 660 In criminal conversation, etc. .......... piace ected’ wie levauete a iieiid sees acareve 341 False imprisonment . . ...........0- a A eee ie gwen eisw ee eesceecee O08 Judgment, effect of, on survival ....... SOG S45 elaw v5. NewS SOS eS FS 146 Libel and slander . ......ccceececccececccenecseneeeeeseeeeenes 659 Malicious prosecution . ......ccceseeeeence seeeee #9: st eiaie b' Gigioloie ave 481 Bed UCN as. poe scses Se hee tie poses Gael sale e eis Ss Sine cconeest 303 Verdict, effect of, on survival ......cccccccececcc cc cececceesseuns 146 Tax: Recovery of, illegal .........20. iss Welelere aeB Wik. waleeie ls Seba é-erehow sc 135 Tax collectors: As to liability of municipal corporations for acts of.........+..e02- 133 Teachers: Chastisement of pupil by .....cccccccsccceccecccccecscecescesees 436 Tenant: (See LANDLORD AND TENANT.) Threats: (Compare MENACE.) As assault .. .....-eceeee sae caeweeddebavncess ceecacee 414; 416, 420 Title: Slander of . . ........eeeeeseoes Luc boayaeatad sorties aliiewie.s eines Cases, COL Torts — General principles: Bibliography . . ..... secs cece cece eeeeeceseees so Siereese's% arses ears we OT Civil and criminal actions distinguished ...........+eeeeeeeeeeeee 200 Classification Of . . ccc cc cece cece cence ene n tess nee eeneeenaenes 10 Contract, torts arising from .........++eeerseeeees eee eneeseneees 41 Damage must ensue ........+sseeeeeereneeeeeeeeeeeeenee eer naes 24 Damages for, generally considered ......-+-seeeeeeeeeeerssreeenees 254 Definitions . 0. occ cece eee ence eee e eee e eee net eeen eect cecnes 3 Election of remedy, effect Of, ON 2. csc eceecese er eeeeeeees 212, 218, 220 892 INDEX. Torts — General principles — Continued: Page. Exemption : from: liability: for-..5 ce .cu ese eet ecco eee n eter ee eeeees 165 (See also EXEMPTION. ) Foundation of law of ....-.. Poa Srey’ eA ws ee ve Rew Oa Ew Se 7 Legal remedy escenvial . hss RS capalsessevavanasauana tab eas ay aveia le Rilagansheuevevaveue aueueaa:fuansh out 29 Legal right must be vielaied gues Feieaes a naabieem esses ween Aes 24 Malice'as am element inf i... i. ieee cece cece cece e teen eet e teens 34 Plaintiff wrongdoer, effect Of ......... cc cece cece cece nce eeneeee 153 Wailver Of @ 4. ac aitey e404 sae eaowae ts aE So WEES CGE VEER SE aeS Ss 212 Wrongful act must cause injury ............ Sh bd roued ane gnas, 5 aigeareities 30 Towns: (See MuNicIPAL CORPORATIONS. ) Treble damage <.......cc cece cece ees Tee LEE eee CCR Ee eis 283 Trespass: Arrest £0%) i cr ic ontaiecs eee Hew aes lheds'S a Gene as WOU es HERES A een eae 582 Preventing,. by. force ...........-. sceececcacee eevee 202, 425, 429, 610 On foreign real estate, . jurisdiction of siBoiaie ewe e ate: Si niarape 06.-O8NE Os Pia 211 Joined with conversion . ...... cece cece cece steer eee rset esenesaes 228 Trial: (See NEw TRIAL; PRAcTICE; JURISDICTION; also references under various torts.) = # = || Exclusion of public, in seduction ........... cece ee eee eeeeceeeeees 331 _ In criminal conversation and alienation of affection............ 367 In assault with intent to commit rape............ ec cece eens 463 Truth: As a defense in libel and slander ...........-..ceescecccevccveces 723 (See LisEL AND SLANDER; Justification.) Uncertain damage ........-.-..0se00.- Bisieadse dre sheseie\'s:0 Giles age eeeaeae ee 269 ~Unchastity: ; As affecting breach of promise ienthangiee Weeds Ss eas Veleue. “eae 393 As affecting seduction .........ccccseccceccceccccesacse 303, 313, 328 Chargirig woman’ With 00.0000... . cece ee Side wb: eyein vets bla inyereereienoes 678 Unconstitutional statute: Arrest under .......... eee e cence rere eecseesccccneseeseercesess DBA Vaccination: As assault . . .....eeeee tee ccc cere cecserccccecccaccccsccescese 414 Verdict: : Effect of, on survival of actions in tort ..... S dulaiaieine seeds sevice 146 New trial, for insufficient or excessive ...... or Wi ielinaa se ARR e SrcuaceGis ce 286 INDEX. 893 Vessel: Page. Assault by master of owners, not liable....... os ew ee tial oa eRe soe 446 Destruction of cargo to save ............ nS BRE S Aocwesora8 diaiacdsa.evess 189 False imprisonment on — jurisdiction ....... toes bes siaviie-e biareie a sae DOL Vindictive damage .......-......0ssceee. eee necceecces SSRIS as 273 Waiver: Of tort (see ELECTION oF REMEDIES). Warehousemen: Liability of . .......0e.eeee ane reer rece eee en teeter eenees ences 73 Warrant: (See Process.) Water: Intercepting underground . ....... ence neers cree eeeenscenesens 195 Weapon: Menace with dangerous ........... ars Sewer’ 6 eee 8 Slaleea a wiiew s veew s 414 (See MENACE; THREAT.) Wife: (Compare HUSBAND; PARENTS.) Abandonment of, by husband, criminal action for .........eeeeee. 55 Actions between wife and husband ..............sesscssscceees 1. 54 Action by, for alienation of husband’s affection ............00e000- 345 For criminal conversation .........ccccccccecsascvceeces 342, 344 For enticing away husband ................- Stimson ee 348 Against third persons ..........06.. Se Mies dm Ree aa eae 57 Assault by husband, no action for ............ Het 8 4S Siesds Snorer 443 Clidstisement: Of 0 ins'es.swnss svg s serine os eis w Omi 8 Fees sw Beech 436 Defending attack On ..... ccc cece sc ce eee e cece eect enneceeetteees 424 False imprisonment Of ........ ccc ccce cece cent ee ee enter eenenenes 612 ‘Husband’s action for injuries to ....... cc cece cece tect eee e teens 59 As joint tort feasor with husband ............eeeee sess sere ences 56 When liable for act of husband ..........cecceecee ee eeee ee ercces 56 Liability to third persons ....... cece cece sence nese cete eter ences 55 Unchastity, charging wife with ......... oe sais site wenge ba 4 678, 698 Windows: Darkening another’s . ......seeceeeseeccecees ofa'e sieieis's senate ecurs 195 Witnesses: Imprisonment of . ........+6-- da arial 39 eels occ eeecceees secceeeee 614 Privileged communieations by ...... dsl pases viet Saber veceeee 140 Wrongs: (See Torts.) [WHoLE NuMBER oF PaGEs, 911.]