Stoddard v. Bird, 1 Kirby 65

Ellsworth, J. Right of action against an administrator is transitory, and tbe action may be brought wherever be is found. And though be is not to be arrested according to tbe mode of process in this state, be may be, for aught appears in tbe state of New York. And tbe presumption- is be may, because tbe authority there issued a warrant to make tbe arrest, and held him, to trial upon it.

As to tbe suit there, being without cause, and vexatious; this is not to be intended, but tbe contrary, after a judgment in tbe plaintiff’s favor, on a full trial upon tbe merits; but if it was so, yet if tbe arrest and bolding was by a lawful precept, an action of false imprisonment is not tbe proper remedy, but an action on tbe case, or upon tbe statute against vexatious suits. I think no trespass is here proved; and, therefore, tbat tbe jury have found wrong. PiteiN, T. As it appears tbat tbe administrator conducted properly, be ought to be protected, otherwise no person would be safe in tbat situation.

Tbe laws of this state undoubtedly protect administrators from arrests on account of tbe deceased whom they represent: For if it was otherwise, and they might be legally arrested in this way, whenever they should happen to go out of the state, they would be liable to be ruined: Therefore, I think, the process was illegal, and the suit unwarrantable. SheeMAN, J.

Undoubtedly there are instances where one may make use of legal authority in such manner as to become liable to the action of false imprisonment: As where one will arrest another by legal authority, without any cause of action, and not return the writ, etc. But in this case it does not appear but the suit was legally instituted agreeably to the forms of that state; and the presumption is rather that way, for the action went to trial, and judgment was rendered by court and jury against the present plaintiff.

I think that so far justifies the transaction, that this kind of remedy is not applicable to the supposed injury. I am, therefore, of opinion the jury are wrong. Dyee, J. Every cause will have its own peculiar complexion and leading cast. The facts here are conceded. The action of false imprisonment always goes on this ground, is the imprisonment complained of right, or is it wrong? If it appears to have been right, the action fails; if wrong, the action is supportable.

"View the complexion of this case: It appears that Bird, the defendant, designed to extort from the plaintiff, in this way, a sum of money which he could not recover by law, and which Stoddard was not bound by justice to pay; this is abusing the law. Perhaps there may be another remedy for the injury, but I think that does not bar this suit. It is clear that Bird had no right in this state to arrest Stoddard, or even summon him before a court of justice, for that debt, under the circumstances which then attended it. I think he had no right to do it there.

But there was a writ taken out to arrest the body of Stoddard. Did be mean to bave sucb a writ? He undoubtedly did, for no other would answer bis purpose. Tbe intention and design, then, was wrongful, and tbe act injurious; so tbat I cannot see but tbe jury bave done right. Law, O. I. So far seems to be agreed, tbat tbe defendant has done wrong:- Tbe only question is, whether tbe plaintiff has chosen bis proper and legal remedy. There are many cases where a man may bave two remedies for tbe same injury. He may then make bis election which be will pursue.

Tbe law means tbat a remedy shall be provided for every wrong, tbat will do equal justice to both tbe parties. ’Will this action do complete justice? I am not certain but it will do as ample justice as any other. There is no evidence but tbat tbe defendant applied for just sucb a writ as was issued; and it is most reasonable to suppose tbat be did, and tbat tbe officer conducted rightly, and agreeably to tbe precept. Tbe plaintiff has consequently been injured by tbe procurement and wrong act of tbe defendant. I am therefore of opinion tbe verdict is right. It was accordingly established.