ALBANY, August 1803. Jackson V. Kough. * See Leith v. Mac Ferlan 3 Burr 1772. Ac Per curiam. As the writ was never returned, this court was never in possession of the cause; whatever has been done here, must therefore be set aside. Take your rule.* Beriah Phelps against Trisdale Eddy. WOODWORTH, on an affidavit stating that issue had court v. Smith been joined in this cause in November 1801, and noticed I L. Ray, 329. for trial at the last circuit for the county of Columbia, but move for judg- not brought on, moved for judgment as in case of non If a defendant ment of non suit contrary to court will the costs of op posing. suit. good faith, the Williams read a counter deposition acknowledging the nomake him pay tice, but adding that the attorney for the defendant did not attend; that his counsel however was there, with whose consent, an agreement was made between the agent for the defendant and the plaintiff's attorney, that the cause should not be brought on before the Friday in the second week of the circuit, on the Thursday next preceding which day, the court adjourned; that it was impossible to bring on the trial during the circuit, because, in consequence of the agreement entered into, the plaintiff had sent his wit nesses home, and they were not to return till the Friday appointed. Service on a gent. Costs. Limits are allowable to per sons in execu Per curiam. Let the defendant take nothing by his motion, and pay the plaintiff his costs for opposing. John Russel against Jonathan Ball and others. THE court ruled in this cause, that service on the agent of an attorney plaintiff, is as good as in any other suit, and that it need not be personal. Also that though unavoidable occurrences may prevent judgment, as in case of nonsuit, yet they will not, separately considered, excuse from payment of costs; for the misfortune of the plaintiff ought to be borne by himself, and not work a prejudice to the defendant. Jackson on the demise of Green and others, against THE defendant was a prisoner with the privilege of the tion under an limits of the gaol of New-York. While so in confinement, attachment for osts. attachments were issued against him in this and fifteen other suits, for contempts in not paying costs pursuant to an order of court. On their being lodged against him, the Sheriff committed him to close custody, under an idea that an attachment for a contempt was in all cases a criminal process, and the defendant therefore not entitled to the indulgence of the limits. The case was now submitted to the court, whether the defendant was within the meaning of the privilege. The court were unanimously of opinion that he was, on giving such security as the law requires. Gardner Herrick against Samuel Manly. ALBANY, August 1803. Herrick V. Manly. constable a in his own suit, defendant is prisoned on the rection of the plaintiff,cannot in an action against him, by for false impri the general is sp ecial matter cation under THIS was an action of trespass for false imprisonment. delivers to a A plantiff, who The defendant pleaded not guilty. The cause was tried writ against on the twenty-fifth of May, one thousand eight hundred and the defendant three, before Mr. Justice Kent, at the Rensselaer circuit. on which the The plaintiff called Samuel Hawley, a constable, and prov- taken and im ed, by him, that he arrested and imprisoned the plaintiff order and diby order of the defendant. The counsel for the defendant then asked the witness, by whose authority he made such arrest and imprisonment? whether it was not by the defendant virtue of an execution issued by a justice of the peace, sonment,under delivered to him as constable, against the now plaintiff, in sue, give the favor of the now defendant? His honor the judge over- in evidence by ruled these questions, being of opinion, that it was suffi. way of justificient for the plaintiff to prove that Hawley imprisoned him the statute for order of the defendant; and that it was not competent pleading in cerfor the defendant to explain by the same, or any other wit- he may do it in ness, either the cause of the arrest, or the authority by that the defenwhich it was made. The defendant's counsel then stated, arrested by his and offered to prove, that Manly recovered judgment instructions, against Herrick before a justice; that execution issued a fuperior authority, against the defendant on that judgment, and was delivered by Manly to Hawley, the constable; that Manly requested Hawley to imprison Herrick on the writ thus delivered, which he did; and that Herrick was liable to be imprisoned on the execution. These facts, it was contended, might properly be given in evidence, under the general issue, in "more easy tain suits," but order to shew dant was not but by virtue of ALBANY, August 1803. Jackson V. Billings. asmuch as the defendant came within the statute, for the more easy pleading in suits, &c. The judge overruled the testimony offered, and a verdict was found for the plaintiff for fifty dollars damages. The case now came before the court on a motion for a new trial. Woodworth for the defendant. Two reasons may be urged why the present verdict should be set aside. First, the judge refused evidence proper in mitigation of damages: Second, he overruled that, which was proper in justification. As to the last position, it may be doubted whether the defendant could justify according to the sta 21 March, tute, "for more easy pleading in certain suits," though 1801, ch. -7.1 he certainly must be allowed to be within the spirit of it. The words are, "If any action upon the case, trespass, Rev. Laws 234. S. 1. battery, or false imprisonment, be brought against any "sheriff, &c. or any other person who in their aid or assistance, or by commandment, do any thing, &c. it shall be "lawful for every person aforesaid, to plead thereunto the general issue, and give the special matter in evidence." By a liberal construction of this act, it may well be said, that Manly acted "in aid and by commandment" of the justice. An execution had issued; it was delivered over to the present defendant by the justice, to be by him transmitted to the constable. The orders of the defendant, for the arrest and imprisonment, were nothing more than a repetition of what the justice commanded him to say. On the other point, the evidence must be considered as clearly proper to have been received, and the rejection therefore not warranted. Whether Manly had a substantial defence to defeat the action or not, could be known only by disclosing facts, which would present a differ ent case than that stated by the plaintiff. They ought then to have come before the jury, as a measure of damages. If asked whether the imprisonment was made under a lawful authority, or of his own will, the answer, according as it was given, would lead the jury to very different conclusions. Had it been done, the plaintiff in this case would not have been entitled to more than nominal da August 1803. Herrick V. Manly. mages. Suppose the action assault and battery, and the ALBANY, defendant neglecting to plead an assault demesne, rests on non cul. At the trial the plaintiff proves an assault, but the same witness can testify that the plaintiff struck first; can it not be shewn in evidence on the part of the defendant? Though this might not justify, it would greatly mitigate.* The question on the trial, on the part of the plaintiff was, "Did you imprison the plaintiff by order of the defen- fication must be "dant?" The question on his part was, "Were you au- Ni. Pr. 17. Co. • The general matter of justi rule is, that pleaded. Bull. Litt. 282. b. ham v. Garn Pri. 317, where one of the was plaintifi's wit nesses was,on a tion by a defen tion of assault late what was "thorized to do so?" The answer would have been But fee Bing"Yes! I have the execution to shew;" but this was not ault, Esp. Ni. Whether this would have amountpermitted to be done. ed to a justification or not, is immaterial; all that wanted was, to shew that the plaintiff was entitled to no- cross-examinaminal damages only, and to reduce them to that. Again, dant in an acsuppose an officer acting under a void process,and the plaintiff and false imprifonment, alproves an arrest, would not the court allow the defendant lowed to reto shew the process, though it was an illegal one? This, said at the time it is true, would not be a justification, but it would be a in mitigation. mitigation. Therefore, in cases like this, the application is to the discretion of the court, and they will see that justice be done to the party aggrieved, when there has been an action against all conscience. Instead of six cents damages, 50 dollars have been given. This is not one of those cases where the court refuse new trials, because the sum recovered is so inconsiderable, that it would be absurd to have recourse to another. The reason does not apply here, because, allowing the verdict goes the same way, the court are not sure the result will be the same: six cents only may be given, and then costs will not follow, unless the judge certify. But, as the verdict may be different, the court surely will never presume both that the verdict shall be similar, and that the judge will certify also. There are many circumstances to induce a new trial; there has not been a full disclosure of facts; the whole truth has not been told, and therefore justice has not been done. Allen contra. On the point first argued, though the last that was made, it is to be observed, that the statute Herrick V. Manly. ALBANY, of our state is a transcript of that of James; the authori August 1803. ties therefore, on the construction of that, will govern in the consideration of the present case. The defendant, to avail himself of that statute, ought to shew, that he is an officer within its meaning; that he was acting by virtue of an authority from the justice, or in his aid, or by his command. If he does not do this, he cannot avail himself of the statute 3 Burr. 1742.* Further, if the defendant is not Money & al' shewn to be liable, in consequence of neglect in comply, ing with the justice's command, he is not an officer with Leach. in the meaning of the law, Doug. 307. It is not stated That was an that he received the execution from the hands of the jus application to enter a sugges- tice; nor that he was an officer, nor acting in pursuance roll, that the of any authority, nor in aid. It does not appear by what a constable, to means the execution came into his hands. tion on the defendant was entitle todouble costs, the ver.dict having been found in his favor. By our law the the caufe, as Sec. 2. If he means to shelter himself under the justice of the peace, he must shew a connexion or privity between himself and the magis trate. This can only be done by pleading right. If jus jury who try tice has not been done, it is the party's own fault. His sess the treble mispleading is the source of his complaint. When the condamages given. stable was asked whether he did not proceed upon an exccution, it was a justification; and as no notice had been given, that it was intended to be relied on, the plaintiff was not prepared, and might have been prevented from doing away its force, by showing it amounted to nothing. Not, therefore, having done what the law requires in such a case, but relying on the general issue, the defendant is now precluded. It was enough for the plaintiff to prove that the defendant did imprison. This was all that could be thought necessary; the plaintiff rested his case at that point, and could never imagine it would be attempted to introduce a justification, of which no notice had ever been intimated. The complaint, therefore, now made, of înjustice having been done, could never have existed, had the defendant adhered to the rules of practice. The testimony, therefore, was properly overruled, because, under the general issue, notice of justification ought to have been given. The witness having been the plaintiff's, does not alter the matter. If the defendant is about to draw out from |