Haines v. Jeroloman.

M. J. Costello, opposed:

The action was for a "personal injury" within subd. 2 of section 549; for by subd. 9 of section 3343 the phrase includes an "actionable injury to the person either of the plaintiff, or of another."

The right of arrest existing by reason of the nature of the action, it was not necessary to first obtain and execute an order of arrest before issuing an execution against the person; when the execution against the property had been returned unsatisfied, the right to issue an execution against the person accrued, subd. 1 of section 1487, Section 1490; Wood v. Henry, 40 N. Y. 126; Philbrook v. Kellogg, 21 Hun, 238; Gibbs v. Hichborn, 12 Id. 480; Catlin v. Adirondack Co., 20 Id. 480.

The "personal injury" which may be the basis of an action need not be an injury to the person of the plaintiff. The case of Ryall v. Kennedy (52 How. 519), should be distinguished as having been decided before the enactment of section 3343, wherein a "personal injury" is defined, and also by the fact that non-residence is not now a cause of arrest per se in actions not arising out of contracts as it was under section 179 of the Code of Procedure.

Before the case of Ryall v. Kennedy, supra, the definition of a personal injury was not restricted to an actual injury to the person of the plaintiff, Delamater v. Russell, 4 How. 234, S. C., 2 Code R. 147; Taylor v. North, 3 Code R. 9; Straus v. Schwarzwaelden, 4 Bosw. 627.

LAWRENCE, J.-This motion will be denied with costs, for the reason that by subd. 9 of section 3343, the term "personal injury" includes, among other cases, "an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff, or of another.” By subd. 2 of section 549 of the Code of Civil Procedure, in an action to recover damages for a personal injury,

Castro v. Uriarte.

there is an absolute right to an arrest from the nature of the action. And in such a case, where an execution against the property has been returned unsatisfied, an execution against the person may issue (Code, sections 1487, 1490).

The case of Ryall v. Kennedy (52 How. 519), was decided in 1876 or 1877, and the provisions of subd. 9 of section 3343 of the Code, necessarily were not considered by the learned justice who wrote the opinion in that case.

CASTRO v. URIARTE.

U. S. DISTRICT COURT, SOUTHERN District of N. Y., EQUITY TERM; JUNE, 1882.

False imprisonment.

SS 484, 488, 492.

Malicious prosecution.— Common law remedies for. — Causes of action for, may be united in same complaint. When action for malicious prosecution will lie.

Malicious prose

cution need not be upon valid legal proceedings.

Where the complaint contained two causes of action, the first for false imprisonment, alleged, in substance, to have arisen from an arrest of the plaintiff, procured by the defendant in extradition proceedings under a treaty, on the charge of forgery, upon a warrant void for the want of jurisdiction in the commissioner to issue the same, and for various defects; and the second for malicious prosecution, alleged, in substance, to have arisen from the arrest and imprisonment of the plaintiff by the procurement of the defendant, upon a warrant issued by the same officer, upon the same day, and for a like offense, and setting forth the examination and acquittal of the plaintiff, the termination of the proceedings, and that the acts of the defendant were done falsely and maliciously, and without reasonable and probable cause; and the defendant demurred to the second cause of action on the ground that it did not state facts sufficient to constitute a cause of action, and he also demurred to the whole complaint on the ground that it appeared upon the face thereof that causes of action had been improperly united, contending, in regard to the demurrer to the second cause of action, that

Castro v. Uriarte.

an action for malicious prosecution would lie only upon valid judicial proceedings, the validity of which must appear by the complaint; that it would not lie upon proceedings void for the want of jurisdiction; and that this cause of action was defective in such respect, by not alleging either generally that the officer had jurisdiction, or in showing facts sufficient to authorize the issuing of the warrant; and contending, in regard to the demurrer to the whole complaint, that an action for false imprisonment and one for malicious prosecution could not both be maintained upon the same proceeding and arrest, that the former action must be based upon a want of jurisdiction, and the latter upon a valid legal proceeding; and that if the second cause of action should be held sufficient in showing jurisdiction in the officer who issued the warrant, then it would be inconsistent with the first cause of action, which was based expressly upon the want of jurisdiction; and, therefore, the joinder of these two causes of action in the same complaint was in violation of the provisions of section 484 of the Code, -Held, overruling the demurrers:

That an action for malicious prosecution would lie against a person who had maliciously, and without probable cause, set on foot, before a tri. bunal of competent jurisdiction, legal proceedings, although such proceedings were invalid: [20]

That the proceedings being, in this case, within the general scope of the officer's jurisdiction, and the arrest having been procured falsely, maliciously, and without probable cause, as charged, it did not lie in the mouth of the defendant to insist that the procedings were defective: ["]

That the causes of action, even if it should appear that they were both upon one and the same proceeding and arrest, were not necessarily inconsistent with each other, for, should the proceedings upon the warrant be found to be irregular and void, either action would lie by reason of the general jurisdiction of the officer over the subject-matter: [22, 23] That there being nothing in the complaint showing that both causes of action were for one and the same proceeding and arrest, it could not, upon demurrer, be taken that they were. ["]

Whatever doubt may exist as to the right to maintain an action for malicious prosecution in a case where the magistrate issuing the warrant to arrest was wholly without jurisdiction of the subject-matter, or of the offense charged, the weight of authority, not only in this State, [4,] but in this country generally, ["] as well as in England, ["] is to the effect, that the action will lie against the person upon whose complaint the warrant was issued, though the proceedings were irregular and invalid as conferring no jurisdiction, provided the subjectmatter, the offense, and the person were within the magistrate's jurisdiction. ["3, 20]

Castro v. Uriarte.

Nebenzahl v. Townsend (61 How. Pr. 353), has not the weight of an express adjudication to the effect that an action for malicious prosecution will not lie, except upon a valid legal proceeding. ["]

A cause of action for malicious prosecution and one for false imprisonment may be united in the same complaint under subd. 2 of section 484 of the Code; ['] they might be so united, even were it to appear that they both arose out of one and the same proceeding and arrest. [*, 23]| Provisions of 2 R. S. 553, § 16, in relation to actions for injury to the person or property of another, by wrongful act, discussed. ["1, 12] Common law remedy for false imprisonment, stated. [2, 6, 5, 9, 10] Common law remedy for malicious prosecution, stated. [*, 7, 9, "] What may constitute malicious prosecution. [4, 5, 7, 19, What may constitute false imprisonment. [,, 10]

20]

Demurrer to a complaint containing two causes of action, the first for false imprisonment, and the second for malicious prosecution, on the ground that causes of action had been improperly united; and demurrer to the second cause of action, on the ground that it did not state facts sufficient to constitute a cause of action. The facts are sufficiently stated in the opinion.

Sidney Webster, for defendant.

Carpenter & Mosher, for plaintiff.

BROWN, J.-This is an action against the defendant, the Consul-General of Spain, to recover damages for an alleged false imprisonment and malicious prosecution, in proceedings for the extradition of the plaintiff under the treaty with Spain of January 5, 1877 (19 U. S. St. at L., 650). This being a common law action, the sufficiency of the pleadings upon the demurrer is to be determined according to the New York Code of Civil Procedure (U. S. Rev. Stat., § 914).

The amended complaint contains two counts, or causes of action, separately stated. The first charges that the defendant, on the 2d of October, 1881, appeared before John A. Osborn, a commissioner of the circuit court of the United States for the southern district of New York,

Castro v. Uriarte.

and charged the plaintiff with forgery, at Havana, Cuba, on or about September 25, 1881, and, thereupon, procured the commissioner's warrant for the arrest of the plaintiff, upon which he was taken before the commissioner by the active procurement and aid of the defendant, and for several days restrained of his liberty; that at the time of issuing said warrant, and of the arrest of the plaintiff thereunder, the commissioner had, in fact, no jurisdiction, and the warrant was wholly void for various reasons, stating, among others, that no mandate or preliminary warrant had been obtained from the executive department prior to the proceedings before the commissioner (Ex parte Kaine, 3 Blatchf., 1, 6, 10; In re Thomas, 12 Id., 370), and that the warrant itself, for various defects upon its face, was wholly void. The second cause of action alleges the arrest of the plaintiff upon a warrant issued by the same commissioner, upon the same day, on a similar charge of forgery, under which, by defendant's procurement, he was imprisoned on the 2d day of October, and restrained of his liberty until October 4, 1881, when, after examination, the plaintiff was held not guilty, and discharged, and fully acquitted by the commissioner; and that the said proceedings have been fully ended and determined; that all the acts and doings of the defendant were done falsely and maliciously, and without reasonable and probable cause, and claims as damages $10,000.

The defendant demurs to the second cause of action, on the ground that it does not state facts sufficient to constitute a cause of action. He also demurs to the whole complaint, on the ground that it appears on the face thereof that the first and second causes of action are improperly united - the first cause of action being for false imprisonment, and the second for malicious prosecution, founded on the same alleged acts and supposed wrongs.