Dusenbury v. Keiley , 58 How. Pr. 286 ( 1880 )

Van Brhht, J. [after stating the facts as above].—

When we consider the distinction between an action for false imprisonment and one for malicious prosecution, all uifficulties in the solution of the question presented by this appeal seem to be removed.

An action for false imprisonment will lie where there is an imprisonment' without any process whatever, or under-color of process wholly illegal, without regard to the question whether any crime has been committed or debt due.

An action for malicious prosecution will lie where there has been an arrest made at the instance of a prosecutor in a criminal proceeding, or a plaintiff in a civil suit, without probable cause, by a regular 'process and proceeding which the facts did not warrant, as appears by the result.

The words, as appear by the result, make the essential difference between actions for false imprisonment and those for malicious prosecution. An action for malicious prosecution will not lie until there has been a determination in the proceeding in which the arrest was made that the facts did not warrant the arrest.

An action for false imprisonment accrues the instant the imprisonment takes place, and becomes complete the instant the imprisonment ceases.

In the one case jurisdiction was had of the subject-matter and the person by the officer issuing the warrant; in the other, the officer never had jurisdiction to issue the process, if the arrest was under process. The-plaintiff in this action, claiming that his arrest was under a process wholly illegal, brought this action, as his counsel claims, for false imprisonment.

There was no imprisonment of the plaintiff after he was released upon the giving of bail. His subsequent appearance was wholly voluntary. The defendant imposed no restraint whatever upon him. His bail "could not have been held liable if he had failed to appear (Broadhead v. McConnell, 3 Barb. 175), because the judge issuing the warrant had never acquired jurisdiction, and the defence could have been set up in an action upon the bond, and would have prevented any recovery. Therefore, the only cause of action rested upon the imprisonment at the time of the execution of the original warrant.

The judge issuing that warrant having never acquired any jurisdiction in the matter, it was never any protection to the party at whose instance it issued.

If the facts proved had shown a cause of action for malicious prosecution, then an entirely different rule would have prevailed. No cause of action would have arisen until it had been finally determined that the facts did not warrant the arrest.

I am of the opinion, therefore, that the statute of limitations was a defense to this action, and that the judgment appealed from should be affirmed.

Joseph F. Daly, J., concurred.