A verdict and judgment were rendered for the State, and defendant appealed.

Arnold for plaintiff in error.

Attorney General for the State.

GREEN, J., delivered the opinion of the court.

The plaintiff in error was indicted for an assault and false imprisonment of Mark M. Rodgers. The court charged the jury, "That to make out the offence as charged, no actual force was necessary, but that a man might be assaulted by being beset by another; and if the opposition to the prosecutor's going forward was such as a prudent man would not risk, then the defendant would, in contemplation of law, be guilty of false imprisonment."

This charge is correct in all its parts, and the facts were fairly left to the jury. A verdict of guilty has been pronounced, and we do not feel authorized to disturb it. The prosecutor and defendant disputed about the ferriage defendant claimed. Smith insisted upon this demand, and said he did not choose to sue every man that crossed at his ferry. Although he did not take hold of the prosecutor, or offer violence to his person, yet his manner may have operated as a moral force to detain the prosecutor.

And this appears the more probable, as after the affair was settled, the prosecutor inquired what defendant would have done if he had not paid the ferriage demanded, to which the defendant replied, "he would have put his carryall and horse back into the boat and taken them across the river again." As this determination existed in his mind, it doubtless was exhibited in the manner of the defendant, and thus operated upon the fears of the prosecutor.1

Affirm the judgment.

1 McNay v. Stratton, 9 Bradw. 215; Hildebrand v. McCrum, 101 Ind. 61; Fotheringham v. Adams Ex. Co., 36 Fed. R. 252 (shadowed by detectives), accord. Personal coercion necessary to arrest. (Hill v. Taylor, 50 Mich. 549; State v. Lunsford, 81 N. C. 528; see 61 Am. Dec. 152, and note.)

It is not false imprisonment for a teacher to detain a pupil a short time after school hours. (Fertich v. Mishener, 111 Ind. 472; 60 Am. R. 709.)

The plaintiff was also properly nonsuited as to his cause of action for false imprisonment. The act (c. 300 of the Laws of 1831) under which the warrant was issued in November, 1878, was not repealed until May 10, 1880. (Chap. 245, Laws of 1880.) The facts stated in the affidavit upon which the warrant was issued were sufficient to give the judge who issued it jurisdiction; and in issuing it he acted judicially and made a judicial determination. The warrant was not, therefore, void or voidable or irregular. It was the result of the regular judicial action of a judicial officer having jurisdiction upon the facts presented to him to issue it. It was subsequently set aside by the judge who issued it, when a new fact, to wit, that the plaintiff had been before arrested in an action against him by these defendants, upon an order of arrest issued in the action for the same cause, and upon substantially the same grounds, was brought to his attention. The existence of this fact did not make the warrant void or irregular. When brought to his attention it furnished the judge a ground for the dismissal of the warrant in the exercise of further judicial action. It matters not whether the warrant was dismissed in the exercise of judicial discretion or upon the claim by the plaintiff that he could not be twice arrested for the same cause, and hence that he had the absolute legal right to be discharged from the second arrest; it was at most a case where the plaintiff was erroneously arrested. An error was committed, which upon a proper presentation of the facts was to be corrected by further judicial action. A warrant, granted under such circumstances, protects against an action for false imprisonment, not only the judge who granted it,

but the party who procured it and instigated its service. The ' case stands no different from what it would have been if the plaintiff had appeared and denied the facts alleged in the affidavit upon which the warrant was based, and had thus procured his discharge upon the merits, or if the defendants, when they applied for the warrant, had disclosed the fact of the prior arrest, and the judge had erroneously decided that they were yet entitled to it, and his decision had upon appeal been reversed; or if when the fact of the prior arrest was afterward brought to his attention, he had refused to set aside the warrant, and his decision had upon appeal been reversed; or if when the fact of the prior arrest was afterward brought to his attention, he had refused to set aside the warrant, and his decision had upon appeal been reversed. If the warrant ( of attachment or an order of arrest is issued in an action upon facts giving the judge jurisdiction and the defendant appears, and by showing new facts, or denying those alleged against him, procures the attachment or the order to be set aside, the process is not void or voidable, or irregular, but simply erroneous, and protects the judge and the party who procures it, although it is set aside, against an action for trespass or false imprisonment. In all such cases these are regular judicial' methods, and that which was legally done at the time cannot be converted into a wrong by relation after the process has by judicial action been set aside. This rule of exemption is founded in public policy, and is applicable alike to civil and criminal remedies and proceedings, that parties may be induced freely to resort to the courts and judicial officers for the enforcement of their rights and the remedy of their grievances without the risk of undue punishment for their own ignorance of the law or for the errors of courts and judicial officers. The remedy of the party unjustly arrested or imprisoned is by the recovery of costs which may be awarded to him, or the redress which some statute may give him, or by an action for malicious prosecution, in case the prosecution against him has been from unworthy motives and without probable cause.

Even malicious motives and the absence of probable cause do not give a party arrested an action for false imprisonment. They may aggravate his damage, but have nothing whatever to

do with the cause of action. Hence if in this case the defendants had intentionally withheld from the judge who granted the warrant the fact of the plaintiff's prior arrest, that fact would have been quite pertinent to maintain an action for malicious prosecution, but would not have laid the foundation for a recovery in an action for false imprisonment.

We have carefully examined many authorities, and have not found one which decides that in a case like this an action for false imprisonment can be maintained. They all sustain the views above expressed. (Williams v. Smith, 14 C. B. (N. S.) 596; Hayden v. Shed, 11 Mass. 500; Reynolds v. Corp, 3 Caines, 268; McGuinty v. Herrick, 5 Wend. 240; Chapman v. Dyett, 11 id. 31; Deyo v. Van Vakenburgh, 5 Hill, 242; Landt v. Hilts, 19 Barb. 283; Simpson v. Hornbeck, 3 Lans. 52; Miller v. Adams, 7 id. 131; affirmed, 52 N. Y. 409; Palmer v. Foley, 71 id. 106; Dusenbury v. Keiley, 35 id. 383; Day v. Bach, 87 id. 56.)

TORT, in three counts, against Josiah G. Graves and W. W. Bailey. At the trial in the Superior Court, before Knowlton, J., the jury returned a verdict for the plaintiff in the sum of $7500; and the defendants alleged exceptions, which appear in the opinion.

P. Wadleigh and P. E. Tucker for the defendants.

A. W. Boardman for the plaintiff.

C. ALLEN, J. The three counts of the declaration are treated by the counsel for the defendants as being counts respectively

1 A person who does no more than enter a complaint with a magistrate, who thereupon without jurisdiction issues a warrant, is not liable for false imprisonment. (Langford v. B. & A. Ry., 144 Mass. 431; and cases in 54 Am. Dec. 265, n.)

for malicious prosecution, for false imprisonment, and for abuse of criminal process; and the trial appears to have proceeded upon that ground. No question as to the form of the declaration has been raised. The court correctly ruled, upon the request of the defendant, that, upon the evidence, the plaintiff could not maintain an action for malicious prosecution, the prosecution not having brought to a termination. The principal questions arise upon the other requests by the defendants for instructions.

The court declined to rule that, upon the evidence, the plaintiff could not maintain an action for false imprisonment against either of the defendants. No action would lie for false imprisonment by reason of what was done in pursuance of the warrant of the governor in the extradition of the plaintiff from Massachusetts to New Hampshire, or of what was done in pursuance of any lawful precept issued upon the indictment in New Hampshire; but if acts were done in excess of what was authorized, and if the process of the law was abused, the remedy) might be by an action for false imprisonment. The court therefore properly declined to adopt the language of the defendants' second request, and all the rights of the defendants in respect to this were saved by the course of the instructions in relation to the wrongful use of process already commenced.

There is no doubt that an action lies for the malicious abuse of lawful process, civil or criminal. It is to be assumed, in such a case, that the process was lawfully issued for a just cause, and is valid in form, and that the arrest or other proceeding upon the process was justifiable and proper in its inception. But the grievance to be redressed arises in consequence of subsequent proceedings. For example, if, after an arrest upon civil or criminal process, the person arrested is subjected to unwarrantable insults and indignities, is treated with cruelty, is deprived of proper food or is otherwise treated with oppression. and undue hardship, he has a remedy by an action against the officer, and against others who may unite with the officer in doing the wrong. It is sometimes said that the protection. afforded by the process is lost, and that the officer becomes a trespasser ab initio. (Esty v. Wilmot, 15 Gray, 168; Malcom

v. Spoor, 12 Met. 279.)

This rule, however, is somewhat tech