FEDERAL REPORTER.
lector at Astoria shows that she has space for 1038 passengers. But. that· is the defendant's good fortune rather than the result of his goodconducrt. He did not act upon that impressioD. And still there are 15 passengers on the list in exoess of what the vessel was entitled to carry by the Astoria measurement, of which the defendant must have had knowledge.. '. The finding of the court is that thedefanda,nt is guilty as charged in the information. i
UNITED STATES V. THOMSON·.
Jpformation· for Violation of section 4266 of the Revised Statutes. The defendant was also charged With the viol'atiqnof section 4266 of the Revised, Statutes, by failing to deliver a correct list of his sengers on board to the collector at Astoria. The case was submitted to the court on the evidence in the above case, and the court found him guilty and sentenced him to pay the fine prescribed by statute -$1,000. , .
CASTRO V. DE URIARTE.
(District Oourt, 8. D. N6'IJJ York. March 25,1882.
1.
FALSE IMPRIBONMJnNT-WHEN AOTION
Lms. Where the subject-matter of an offence charged on the accused is wholly beyond the jurisdiction of the committing magistrate, only an action for false· imprisonment, and not an action for malicious prosecution, will lie.
2. MALICIOUS PROSECUTION-AcTION FOR. ' But if the subject-matter and the person be within the proper jurisdiction
of the magistrate, and the papers upon which the process was issued, or the process itself, be defective or irregular merely, upon the proceeding beillg minsted, if the prosecution was maliCious, the accused may maintain atl action eitherfor false imprisonment or for malicious prosecution. Although the magistrate who issues process without jurisdiction is liable in trespass only, the complainant is liable to trespass on the case as the indirect cause of the injury.. . . 3. COMPLAINT CHARGING BOTH OFFENCES-JOINDER.
In an action brought by a person who had been arrested for the purpose of extradition, under the treaty with Spain, upon the complaint of the defendant, the ::3panish consul, and the complaint in. the present action charged in the first count false imprisonment, upon the ground of defects in the affidavits submitted to the United States commissioner, upon· Whose order the arrest was
CASTRO V. DE UB<IABTE.
251
made, and in ·the second count alleged a malicious pl'osecution, Mld, on demurrer, that as the commissioner had full jurisdiction of the subject-matter the two counts were not necessarily "inconsistent," and therefore not, on that ground, improperly united in the complaint under sections 484 aud 488 of the New York Code of Procedure. ' 4. SAME-SEPARATE OFFENCES IN' SEPARATE CoUNTS.
Different counts are presumptively upon different claims, or fOr different offences. It cannot, therefore, be assumed upon demurrer, however probable it may be, that the counts for malicious prosecution and for false imprisonment are upon the same identical proceeding. .
Demllrrer to .Amended Complaint. Carpenter ft Mosher, for plaintiff. Sidney Web8ter, for defendant. BROWN,. D. 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 action, the of St. at Large, 650. Being a the pleadings upon the demurrer is to be determined according to the New York Code of Procedure. Rev. St. § 914. The amended complaint contains two counts or causes of action separately stated. The first charges that the defendant, on the second of October, 1881, appeared before John A. Osborn, a commissionerof the circuit court of the United States for the southern district of New York, 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 j 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, (In re Kaine, 3 Blatchf. 6-10 j In re Tlwm,a8, 12 Blatchf. 370 j In re Stupp, ld. 501;) 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 upon the same day on a similar charge of forgery, under which, by defendant's procurement, he was imprisoned on the
252
second 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, aud 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. Section 4SS of the Code of Procedure specifies eight causes for which the defendant may demur to a complaint. Sub,division 7 is "where causes of action have been improperly united." Subdivision 8 is "where the complaint does not state facts sufficient to constitute a cause of action." By section 492 the defendant may demur to the whole complaint, or to one or more separate causes of action stated therein. 484 specifies the causes of action which may be joined in one complaint, and subdivision 2 embraces causes of action "for personal injuries, except libel," etc.; and both of the causes of action in the present complaint clearly come under this subdivision. This seotionatso provides, at its close, that "it must appear upon the face of the complaint that all the causes of action so united belong to one of the foregoing subdivisions ,of this section, and that they are consi8tent with each other." The last clause, requiring that such causes of action be consistent with each other, was first added in the new Code of 1877. The demurrer to the second cause of action, on the ground that it did not state facts sufficient to constitute a cause of action, is based upon the contention of the defendant that an action for malicious prosecution cannot be maintained except upon a legal and valid judicial proceeding; that it will not lie upon proceedings void for want of jurisdiction; that the complaint must allege or show such a valid judicial proceeding; and that the second cause of action is in this respect defective in not alleging either in general words that the
CASTRO V. DE URiARTE.
253
commissioner had jurisdiction, or in showing any facts sufficient to authorize the issuing of the warrant of arrest. The demurrer to the whole complaint for the improper joinder of the two causes of action is based upon the contention that an action for false imprisonment and for malicious prosecution cannot both be maintained upon the Barile identical proceedings and arrest; that the former is based upon a want of jurisdiction, and the latter upon a valid legal proceeding; and that if the statement of the second cause of action be held sufficient in averring or showing jurisdiction in the commissioner who issued the warrant for the arrest;·then it is inconsistent with the first cause of action, which is based expressly upon the want of jurisdiction, and therefore that the joinder of these two ca,uses of action in one complaint is forbidden by section 484, above referred to. The remedy at common law· for false imprisonment is by an action of trespass for a direct injury to the plaintiff through an unlawful arrest, or a detention without legal authority. The arrest ordetention may be by process, under color of legal pt:oceedings, or without process, in the absence of any legal proceedings; orit may be through the irregular issuing or service of process in proceedings otherwise valid. Addison, Torts, §§ 798, 802, 803, 831; Barker v. Brahdm, 2 W. Bl. 865, 844; Holley.v. Mix, 3 Wend. 350; Pease v. Burt,3 Day, 485. The common·law remedy for a malicious prosecution, on the other hand, is by an action on the case for an indirect injury through the institution of legal proceedings from malicious motives and without probable cause. To recover in such an action not only must malice and the absence of probable cause be shown, but also the termination of the legal proceedings in favor of the accused; none of which are essential to recovery in an action of trespass for false imprisonment. The gist of the action is the malice and want of probable cause; and where these concur and the accused has been acquitted, the law, by means of this remedy, designs to afford him compensation for the injury, expense, annoyance, or disgrace of the groundless proceedings against him. Addison, Torts, §§ 852, 868.' Where the proceedings are void for want of jurisdiction, trespass for false imprisonment is the ordinary remedy, since no other proof is requisite than the proof of the arrest or detent,ion, and of the illegality of the proceedings. Upon this proof the plaintiff is entitled to compensatory damages. Jay v. Almy, 1 W. & M. 262; Blythe v.
·9M:
.I'llIDEBAL 'BllIPOBTEB·
. Tompkins, 2
468. And· where there is also evidence of malice or bad faith or want of probable cause, exeinplarydamages may' also be given, but not otherwise. Addison, Torts, § 845; Day v. Woodworth, 13 How. 863, 371; Brown v. Chadsey, 39 Barb.: 953, 265; Williams v. Garrett, 12 How. (N. Y.) 456. Where the arrest· complained of arose in the course of legal proceedings, and there was no doubt of malice and of the want ofprobable cause, and no question existed ooncerning the jurisdiotion or legal validity of the proceedings themselves, the pleader wa;s necessarily confined to an aotion on the case for malicious proslIiOution; while if a doubt existed with regard to the jurisdiction of· the court or magistrate in issuing the warrant of arrest, or the regularity of the proceedings under it, the pleader would ordinarily insert also a count of trespass for false imprisonment, so that, upon trial, if the proceedings were held irregular he would be entitled to recover compensatory damages at all events, and on proof of malice and want of probable cause he could recover full damages for the malicious prosecution, in case the proceedings and the arrest should be held to be regular, and within the jurisdiction of the court or magistrate that issued the warrant. While thus, from reasons of convenience, the remedy for an arrest without j,urisdiction was ordinarily by an action of trespass for' false imprisonment, and the remedy was by an action on the case for malicious prosecution, where the arrest was in the course of lawful prosecution, yet these remedies were not confined within these several limitations, nor were they always mutually exclusive of each other. Though the process and proceedings were perfectly valid and regular, yet in case of their abuse or misuse or service at an unlawful time, an action for false imprisonment would still lie. Holle.1J v. Mix, 3 Wend. 350; Doyle v. Russell, 30 Barb. 300, 305; 1 Term, 536'-7; Pease v. Burt, 3 Day, 485. By the Revised Statutes of this state, (9 Rev. St. p. 553, § 16,) it is provided: "Where, by the wrongful act of any person, an injury is produced either to the person, personal property, or rights of another, for which an action of trespass lDay by law be brought, an action of trespass on the case may be brought to recover damag\Js for such injury, whether it was wilful or accom· panied by force or not; and whether such injUry was a direct and immediate consequence from such wrongful act, or whether it was consequential and indirect."
255
This provision is not affected by the Code of Procedure. Thenec6ssary effect of it would seem to be, to authorize an action on the case, for a. malicious prosecution where malice and the want of probable cause appear, even though the want ·of jurisdiction in the proceedings for the arrest also expressly appear, since an action of treapass {.or false imprisonment would in the latter case undoubtedly lie, and in all such cases, therefore, the party injured has his elflction. of remedies under. this statute. Rice v.Platt, .3. Denio, 81, 84; .W'tigM' v. Wilcox, 19 Wend, 343,348; Slwrte v. Oharles, 18 Wend..616. Aside from this statutory provision, upon an examinEj,tion of the authorities cited in the elaborate briefs which have been submitted to me by the counsel of the respective parties, Lam that ,the great preponderance of authority, not only in this state but in this oountry generally, as well as in England, is. to the effect that an. action .for malicious prosecution will lie. against the, perSon upon whose -complaint the warant was issued, though the proceedings were irregular and without jurisdiction" provided the the offence,' and the person were within the magistrate's jurisdiction. It is so stated expresBly in the text writers, and has been rep$atedly adjudged. 3 Bl. Comm. 127; 2 Greenl. Ev: § 449; 1 Chit. PI. -133. The precise question here presented arose in the case of Morris v. Scott,in this state, (21 Wend. 281,) where, in an action on the case, for malicious prosecution, the plaintiff was nonsuite.d on the trial because' it did not appear in the declaration that .the justice before whom the complaint was made, and who had issued his warrant for the arrest of the plaintiff, had jurisdiction in the matters charged. Upon error to the supreme court the judgIUent wa!J reversed, the court holding that an action might be maintained "though there may be a total want of jurisqiction, provided malice and falsehood be put forward as the gravamen, and the arrest or other act of trespa,ss be claimed as the consequence." The authority of this case has not been shaken, but reaffirmed, by subsequent decisions. Newfield v. Oopperman, 47 How. 87; Thaule v. Krekeler, 81 N. Y. 428; VanLatha1n v. Libby, 38 Barb. 348; Dennis v. Ryan, 63 Barb. 145; 65 N. Y. 385. In the case last cited the defendant had been 'charged with forgery, aooompanied by a statement of suoh faots and circumstances as showed that the offence was not forgery in law, and upon trial of the indictment he was acquitted upon that ground. In a subsequent trial for the judge charged that the action ,would lie
256
"if the defendant knew that the charge was false and unfounded, and by that means procured the plaintiff to be indicted and brought to trial even though the charge made did not constitute the crime alleged, or any crime;" and this charge was sustained on appeal. The same principle has been affirmed in numerous other cases in this country. Stone v. Stevens, 12 Conn. 219; Hayes v. Younglove, 7 B. Mon. 545 ; Stancliffe v. Palmeter, 18 Ind. 321; Stocking v. Howard, (Miss.) 24 Alb. Law J. 537; Sweet v. Negus, 30 Mich. 406; Collins v. Love, 7 Blackf. 416; Forrest v. Collier, 20 Ala. 175; Brewboy v. Cockfield, 2 McMullen, 270; Gibbs v. Ames, 119 Mass. 60. In support of the proposition that an action for malicious prosecuthe defendant tion will not lie except upon valid legal relies upon the recent case of Nebenzahl v. Townsend, decided in the New York common pleas, (61 How. N. Y. 353,) on several cases in Massachusetts, (Bixby v. Brundridge, 2 Gray, 129; Whiting v. Johnson, 6 Gray, 246; Bodwell v. Osgood, 3 Pick. 379, 383.) and on Bome others of a similar character. In the case in the common pleas the point was referred to briefly; but at the close of the paragraph the learned judge says: "The point is not material, from what subsequently occurred." The case has not, therefore, the weight of an express adjudication. In Bixby v. Brundridge the decision was upon the express ground that the justice had "no jUJ:.'isdiction of the offence," and the fact was the same in both the other Massachusetts cases. These cases, therefore, are not in point as respects a court or magistrate that has jurisdiction of the subject-matter of the offence charged and of the parties. The same distinction was taken in the case of Painter v. lves, 4 Neb. 126, and in Sweet v. Negus, 30 Mich. 406. In the former case, Lake, C. J., says: "This seems to be the correct rule where the proceedings complained ot were had in a court having no jurisdiction of the subject-matter of the suit."
In the latter case Christiancy, J., says: .. There may be good ground for holding, as has been held in some cases, that when the justice has by law no jurisdiction of the subject-matter, or a total want of jurisdiction otherwise appears upon the face of the warrant, the proceedings cannot properly be called a prosecution. In such cases the accused would be under no obligation to obey or submit to the arre&t, or the trial or examination. We decide nothing upon this point, as it is not' before us; but we are entirely satisfied that when the want of jurisdICtion does not appear upon the face of the warrant, and is only to be shown by evidence
257
aliunde, the party arrested and prosecuted may. when he has been acquitted, maintain an action for malicious prosecution. when he shows it to have been malicious. and the prosecution does not show in defence that there was probable cause. and that he acted in good. faith,"
In Massachusetts, also, in the more ,recent case of Gibbs v. Ames, 119 Mass. 60. the decision of the court is to the same effect, where a plaintiff was brought to trial and acquitted, but without any previous proper complaint or proper warrant of arrest, and it was held that an action for malicious prosecution would lie; and the court say: ., This was a sufficient prosecution and acquittal therefrom to furnish a foundation for the common action for malicious prosecution, nothwithstanding any insufficiency of the complaint, or defect of process by which she was brought before the court, or want of jurisdiction of the magistrate arising from such defect. The magistrate had jUJ'isdiction of the subject-matter of the complaint, which was not the case in Bixby v. Bl'undridge, 2 GraY,129, and Whiting v. Johnson, 6 Gray, 246,"
In England it can hardly be said that any other rule has ever prevailed as against a prosecutor who has maliciously procured an illegal warrant of arrest to be issued upon a groundless charge, although the magistrate who maliciously issues it without jurisdiction is liable in trespass only, since he is the direct cause of the arrest, (Morgan v. Hughes, 2 Term, 225, 221,) while the was but the indirect cause. Blackstone (3 Comm. 127) says: "But an action on the case for a malicious prosecution may be founded upon an indictment whereon no acquittal can be had; as if it be rejected by the grand jury, or be coram non judice, or be insufficiently drawn. For it is not the danger of the plaintiff, but the scandal, vexation, and expense upon which this action is founded." Gustin v. Willcock, 2 Wilson, 302, 307; West v. Smallwood, 3 Mees. & W. 418, 420; Wicks v. Tentham,4 Term, 247; Pippet v. Hearn. 5 Barn & A. 634.
In the late case of Farley v. Danks (4 :Ml. & .HI. toe aerendant had falsely and maliciously procured the plaintiff to be adjudicated a bankrupt upon an affidavit which was not sufficient legally to warrant an adjudication. Lord Campbell, in support of a verdict, says: "It is said that the adjudication ought to be a consequence necessarily and legally following from the facts if true. But all that is necessary is that the defendant should falsely and maliciously cause the act; and he does that when he swears falsely, and the act would not be done without his so swearing.
v.12,no.3-17
258
It would be monstrous to say that this does not make out the charge. I
should be very sorry to find any decisions of our courts to that effect. Where a man makes a true statement of fact,llpon which the court acts wrongfully, the grievance, it is true, arises not frOni the statement, but from the judgment; but it would be monstrous to hold that this is so where the statement is maliciously false. We must assume that Oldfield v. Dodd, 8 Exch. 578, is correctly decided; though for anything I know it may be reversed in the house of lords. But it does llotshow that this·action will not lie; it shows only that the commissioner made a mistake; he did not the less act on the authority of the defendant. Suppose an application to be made to hold a man to bail upon affidavit that he is going to leave the country, which is utterly without foundation of fact, and that some slip is made, as Mr. Gray suggests, in poilltof ,law; it is clear that, under these circumstances. a party would be liable for a malicious falsehood. The action, therefore, well lies; and the rule must be discharged."
Upon these authorities it would seem to be clear that, whatever doubt may exist in regard to the propriety of an action for malicious prosecution where the court or. magistrate issuing the warrant was wholly without jurisdiction of the subject-matter or of the offence charged, the nearly unanimous decisions of the courts are that such an action will lie against the prosecutor who has· maliciously set on foot legal proceedings, though invalid, before a tribunal of competent jurisdiction j and such is this case. The defendant, according to the averments of the second cause of action demurred to, maliciously and without probable cause procured the plaintiff's arrest upon a charge of forgery, through a warrant which he procured to be issued from a commissioner of the circuit court of this district. The magistrate was competent to entertain. the charge ; the offence was within the provisions of the treaty. The proceedings may have been irregular and invalid, but they were within the general scope of his jurisdiction; and these proceedings having been, according to the complaint, set on foot maliciously and without probable cause, and the plaintiff's arrest procured through the defendant's agency therein, it does not lie in his mouth to insist that the procee4ings were defective. The demurrer to the second cause of action should therefore be overruled. In the above view of the second cause of action it is not necessarily "inconsistent" with the action of trespass for false imprisonment stated in the first cause of action; inasmuch as, if the proceed-
CASTRO V. DE URURTE.
259
ings on the warrant for the arrest should be found to be irregular and void, either action would in this case lie, by reason of the general jurisdiction of the commissioner over the subject-matter; and this would be the case although it appeared that both causes of action, were upon one and the same proceeding and arrest. Barr v. Shaw, 10 Hun. 580. But this fact does not appear upon the complaint in this case, however probable it may be. In the theory of pleading different counts- are supposed to represent different claims or offences. It is not impossible that the plaintiff may have been arrested by the defendant's procurement upon the same day upon two different charges, and by two different warrants of arrest, and the subsequent proceedings might possibly have been had under both. It is not impossible that a prior proceeding may have been thought of doubtful sufficiency, and a second have followed upon the same day, designed to avoid'any defects of the first. Nothing in the complaint shows that both connts are for the same arrest, and it cannot upon demurrer be taken for granted. On both grounds. therefore, the demurrer to the whole complaint should be overruled. The dMendant may answer within 20 days on payment of the costs of the demurrer. NOTE. CONFORMITY TO PRAOTICE IN STATE COURTS. United States courts conform as near as may be to the practice, pleading, and modes of procedure in civil cases other than equity and admiralty, with the rules of practice of the states where they are held.(a} Section 914 of the Revisl'ld Statutes only assimilates the practice in the federal courts to that of the state courts .. as neaf as may be,"(b} and goes no further than to adopt the state statutes .. as near as may be."(c} The statute makes a distinction between common-law cases and equity and admiralty cases as to the forms and modes of procedure,(d) and it applies solely to common-law suits,(e) and has no application to cases in equitY.(f) So, the practice of allowing ejectments to be maintained on equitable titles cannot affect the jurisdiction of the courts of the United States,(g} and so of answers to an action at common law, claiming an equitable (a) Perry v. Mechanics' Mut. Ins. Co., 11 Fed. Rep. 478. (b) Whalen v. Sheridan, 10 Fed. Rep. 662; Rob. Inson v. Mut. Ben. Ins. Co. 16 BIstch'.20l. see Indianapolis & St. L. R. Co. v. Horst, 93 U.8. 291. (c) U. B. v.Brawner, 7 Fed.l\8p. 90. (it) Steam Stone Cutter Co. v. Sears,9 Fed. Rep. 9; Sandford v. PortRmouth, 6 Cent. L. I. 147; Nndd v. Burrows, 91 U. S. 426. (0) The Blanche Page, 16 Blatchr. 6; Dwlghtv. Merritt, 18 BlatcH 305. if) Blease v. Garlington, 92 U. S. 1; Brooks v. Vermont C. R. Co. 14 Blatchf. 471. see Butler v. Young,5 ChI. Leg. News, 146. (/I') Fenn v. Holme, 21 How 481; Hooper v. Schelmer, 2.3 How. 249; Sheirbllrn v. Cordova, 24 How. 423; Robinson v. Campbell, Whoat. 212.
a
260
right. (h) When pending cases are proceedings at law, they are entitled to the benefits of the provisions this section ;(i) and the fin;t inquiry is, what is the practice in the state court ?(j) The intention of the statute is to secure in each state one met liod of procedure in all common-law 'cases, and to attain that result by adopting in gen. eral the procedure of the state courts.(k) Under this statute old forms of process for the commencement of common-law suits used in the United States courts have been superseded by the summons, conforming to the practices of the statQ courts except as to the mode of attestation. which is provided for by Rev. St. § 911.(Z) It applies to process by which suits are bronght, and its mode of service;(m) so of mandamus as a remedy to compel municipal cor· porations to levy a tax to pay a jUdgment creditor;(n) but not to summary process against a marshal, where the stat4.'\ law authorizes such process against a sheriff for a penalty in addition to the amount due on the execution.(o) This sectipn applies to the rules of pleadingj(p) and to the time of filing the declaration after being returned" summoned."(q) It applies to the mode of amending the complaint as of course,(r) and pleadings not authorized in the state court in a like suit will be set aside on motion.(s) On removal of the cause no other or different pleadings are necessary ;(t) but it does nnt apply to the rule of set-off', which is exclusively under the laws of the United States ;(u) nor to the signature to a bill, which is regulated by rule 34 in equity.(v) Where a state abolishes fictitious proceedings and establishes in their place the action of trespass, for the purpose of trying the title to lands and recov· eryof their possession, this section applies.(w) It applies to the requirement to answer interrogatories as a substitute for a bill of discovery;(:1;) and to ordering a proceeding to substitute one defendant for another;(y) and to all motions at common law required by the practice at a special term of the state court, in a stated term of the federal court ;(z) but it does not apply to ordering a peremptory nonsuit against the will of the plaintiff.(a) It applies to notice of hearing for the trial of an issue of law on a demurrer.(b) State laws requiring a illdg-e to put his decision in writing are not lJinding 011 federal courts.(c)
of
(h) Montejo v. Owen, 14 Blatchf. 324.
(I) Moral1 v. City of Ehzabeth, 9 Fed. Rep. 73. (j) Brown v ·.Phil., W. & B. R. Co. 9 }'ed. Rep. 185. (k) Bills V. N. 0., St. L., etc. R. Co. 13 Blatchf. 228.
(1) Brown v. Pond, 5 Fed. Rep. 37; Peaslee v. Haberstro, Ii Blatchf. 472; Dwight v. Merritt. 18 Blatchf. 305; S. C. 4 Fed. Rep. 614. (m) Brownell v. Troy & Bost. R. Co. 18 Blatchf. 245; Dwight v. Merritt, 18 BlateLf. 305; Springer v. Foster, 2 Story, 383; Perkins v. Watertown, 5 Biss.320. (n) U. S. v. City of Keokuk, 6 Wall. 514. See Wisdom v. Memphis, 8 Ceut. L. J. 108. (0) Gwin v. Barton, 6 How. 7; Gwin V. Breed. love, 2 How. 29. (P) Oscanyan v. Winchester Arms Co. 15 Blatchf. 87; Taylor v. Brigham, 3 Woods, 377; Lewis v. Gould, 13 Blatchf. 216.
(q) Ricard v. Inhab. of New Providence, 5'Fed. Rep. 434. (1') Rosenbach v. D,·eJ·fn.., 1 Fed. Rep. 393. West v. Smith,101 U. S. 263; Whitaker v. Pope. 2 Woods, 46a. (8) Lewis v. Gonld, 13 Blatchf. 216. (t) Merch. & Manuf. Kat. Bank v. Wheeler, 13 BJatchf. 218. (u) U. S. v. Robeson, 9 Pet. 319. (II) Stinson v. Hildrl1p, 8 mss. 376. (tc) Sears v. Eastburn, 10 How. 187. ("') Hryal1t v. Leyland, 6 Fed. Rep. 126. (y) Harris v. Hess, 10 Fed. Rep. 263. (z) Emma Silv. M. Co. v. Park, 14 Blatchf. 411; Nairo v. Cragin, 3 Dill. 474; Republic Ins. Co. v. Williams, 3 Biss. '370. (a) Elmore v. Grynes, 1 Pet. 471. (6) Rosenbach v. Dreyfuss. 2 Fed Rep. 23. (e) Martindale v. Waas, 11 Fed. Rep. 551.
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It is irregular to enter judgment on a referee's report without an application to the court, that being the practice in the state court,(d) and there is no aLltllOrity to refer a common-law suit to referees for trial without consent of both parties, although the etate court may.(e) Does this section authorize the uview of an action at law pursuant to the practice oithe state court, where (I) The rules of the State Code the facts were found by a referee, of Praetice have no application over courts of error and bills of exceptions in 'he United States courts,(u) and there is nothing in this section which extends to or affects the power of the federal courts as it before existed on a writ of error. (h) Judgments and decrees are liens when similar judgments and decrees are made liens by the state law.(i) This section applies to a writ of sIJirelacias in reciting a judgment on a prior scire lacias.(j) State laws fiual process have no application unless adopted by some act of congress;(k) but state laws as to exemption from levy and sale on execution will be followed; (1) so, as to the notice and mode and time of sale under execution.(m) Where congress by statute has pointed out a specific course of procedure, or has legislated generally 011 the subject-matter, such legislation must be followed, although opposed to the forms and modes of procedure prevailing in the state courts and established by the state statutes,(n) and this section does not by implication repeal any previous act of congress expressly providing- a particular mode of proceeding.(o) It does not apply to a rule of practice of a stat.e court adopted subsequently to an act of congress regulating the practice in the federal courts in such states.(p)-[ED. (d) Fourth Nat. Bank v: Neyhart. 13 Blatchf. 393. (e) Howe Mach. Co. v. Edwards. 1& Blatche. 402. if) v. Ins. Co. 103 U. S.90. See'Robinson v. Mut. B. L. Ins. Co. 16 BJHtch. 194. (g) Whalen v. Sheridan, IS Blatchf. 308, 324; S. C. 5 Fed. Rep 436: Marye v. StrouBe, 6 Fed. Rep.491. See Mnller v. Ehlers, 91 U. S. 251. (h) Town of Lyons v. Lyons Nat. Bank tl Fed. Rep.374. See Nudd v. Bnrdows, BChi. Leg. News, 129. (i) Ward v. Cbamberlaln, 2 Black, 430. (j) Brown v. Chesapeake'" O. C. Co. 4 Fed. Rep. 771. (k) Wayman v.Sonthard, 10 Wheat. 1 ; ROSH v. Dllval, 13 Pet. 46; Boyle v. Zacharle, 6 Pet. 648. (I) In re Volger, 2 Hughes, 297; In re Appold, 6 Phila. 469; In re Ruth, Id. 438. (m) Moncure v. Zanta, 11 W.II. 416; Smith v. Cockrill, 6 Wall. 766; Pollard v. Cocke, 19 Ala. lSi'; Merchant.' Bank v. Evans, 51 Mo. 335. See Byers v. Fowler, 12 Ark. 21B. (n) McNutt v. Bland, 2 How. 17; US. v. Pin!!s, 4 Fed. Rep. 716; v. Merritt, 4 Fed. Rep. 616; citing Eaaton v. Hodge-. 7 Biss. 324 ; Beards. ley v. Littell, 14 Blatchf. 1:::'; 11. S. v. Hutton, 25 Int. Rev. Ree. 57. (0) Wear v. Mayer, 6 Fed. Rep. 660. (P) Wilcox v. Hnnt, 13 Pet. 37B.
FEDERAL REPORTEB.
TIBLIEB 'V. ALFORD.·
(Ui'l'euie OOU'I'e, E. D. Louisiana.
May, 1882.)
l.
UNLAWFUL ATTACHMENT-MALICE-DAMAGES.
In an action for damages for an unlawful seizure under attachment, if the seizure is proved wrongful, but made in good faith, the jury should find for the plaintiff for actual damages only; but if they should flnd that tho seizure was made in bad faith and maliciously, they might assess proper punitory damages in addition to actual damages proved. 2. PuNITORY DAMAGES.
Punitory damages are not allowed for the purpose of rewarding beyond compensation the injured party, but as a punishment to deter others from like conduct. 3. EvmENCIll AND PRESUMPTION OF MALICE.
A seizure is wrongful if made without proper legal grounds to sustain it, and while malice is to be proved, yet the jury may infer it from evidence satisfying them of the wantonness of the seizure and oppressive conduct on the part of the defendant, taking into consideration all the evidence in the case. 4. GROUNDS FOR ATTACHMENT-REPRESENTATIONS.
If the affidavit for the attachment was based upon representations made by the plaintiff (defendant in attachment) to the defendant, (plaintiff therein,) or to other persons and communicated to him, the jury should find for the defendant; but on this question they cannot consider representations made to other persons and not communicated to the attaching creditor, for such representations could not have influenced his action.
Joseph P. Hornor and Francis W. Baker, for plaintiff. B. R. Forman, for defendant. PARDEE, C. J. The plaintiff has recovered a verdict against the defendant for the sum of $2,500, and interest, amount of damages Buffered by the illegal and malicious issue of an at.tachment. The defendant moves for a. new trial on severll.l grounds, mainly: (1) That the court erred in not charging the jury, as requested by defendant, "that in an action for damages beyond the amount of the bond, for an attachment, the plaintiff must prove malice and want of probable cause." (2) Because, if any such charge, or its equivalent, was given, the jury did not so understand it, or disregarded it. (3) Because the defendant was taken by surprise, while being examined as witness, when he was about to state that the other witnesses, Corbin, Hendricks, and others, had informed him that Tiblier had represented himself to be a resident of Texas, he was interrupted by counsel for plaintiff, and he understood the court to exclude such testimony as hearsay; and he was taken by surprise when the court instructed the jury that the testimony of these witnesses" that Tiblier had represented to them that he was a resident of Texas" must be disregarded, unless it had been communicated to defendant; and thus, through the misap*Reporteu by Joseph P. Hornor, Esq., of the New Orleans bar.