Art. 10. Defenses.

As a simple trespass is not a crime one is liable for false imprisonment, 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 trespasser, 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 proceedings 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 conviction before he can maintain a civil action. Cuniff v. Beecher, 84 Hun, 137, 66 St. Rep. 199, 32 N. Y. Supp. 1067, citing Robbins v. Robbins, 133 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 Misc. Rep. 456, 35 N. Y. Supp. 1019. Compare the same subject in "Malicious Prosecution."

Art. 11. Imprisonment of Various Classes of Persons.

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 mistook 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, 53 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 authorized by law is guilty of a misdemeanor." In regard to the commitment, care, and discharge of the insane, see Insanity Law, $$ 60-77.

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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.

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 magistrate, 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 fatherin-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 jurisdiction 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 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

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 question 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 permitted to show that he acted under authority, and thus was technically liable, but, as the court said, only for compensatory damages 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 exposed to such disease—yet he is only authorized to quarantine an individual who has been exposed to the disease under conditions which would permit communication of the disease. The mere possibility that the individual might have been exposed to the disease is insufficient. Smith v. Emery, 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.

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 subpoenaed or ordered to attend, for the purpose of being examined, 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 returning 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 examined; 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 discharge, 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 subpoena, 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 contempt 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 subpoenaed, or the order procured, to recover the damages sustained by him, in consequence of the arrest.

It will be noted that section 863 gives to the plaintiff so illegally 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 subpoenaed.

But by virtue of section 864 the sheriff or other officer or person is not so liable unless the person claiming the exemption makes an affidavit, if required, to the effect that he was illegally subpœnaed, 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