Warne v. Constant

4 Johns. 32 | N.Y. Sup. Ct. | 1809

Yates, J.

delivered the opinion of the court. The only question presented for the consideration of the court is, whether the situation of the plaintiff, while thus residing with his family, within the liberties of the gaol, can be deemed such a restraint as to constitute false imprisonment, and, consequently, enable him to sustain this action.

The bond given by him for the gaol-liberties, under the statute, could only continue operative, so long as the authority, by virtue of which he was at first confined, and on which the bond is grounded, remained in force. The delivery of the supersedeas to the defendant destroyed the further operation of the ca, sa. and with it, the necessity for, or further effect of the security, so that the plaintiff was thereby virtually and legally discharged from imprisonment, and might, immediately thereafter, have left the gaol-liberties, without risking any thing, had he been so disposed, nor could the sheriff legally have prevented his departure.

It must be presumed, that the plaintiff applied for the supersedeas to the court, and consequently knew when it issued. With full notice of his situation, he now seeks damages from the sheriff, for ignorantly continuing within the gaol-liberties.

It does not appear, that, during this time, he attempted to leave the liberties, but continued there under the mistaken impression, that he could not depart without a formal discharge from the defendant, as sheriff. Had such an attempt been made, and frustrated by violent measures on the part of this officer, such conduct would have subjected him to the responsibility now sought for, and the present action might then, perhaps, have been properly sustained; but as nothing more appears than a refusal by the sheriff, on the application of the attorney, to give him a discharge, which was not necessary, from a confinement, without any violence or coercion to detain him, and merely ideal, we are of opinion, that the judge properly ruled, that this restraint, under all the circumstances, was not sufficient to sustain the action, and that a judgment of nonsuit must be entered.

Judgment of nonsuit.