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made by any person other than husband or wife, or a relative, notice thereof must be given to the husband or wife or to a relative. Notice is only to be given to a relative when not given to the husband or wife. In this case it was unnecessary to give notice to the wife, because she made the application. It is to be noticed that this is not an application to set aside the commission heretofore issued herein, and that, therefore, I cannot set that commission aside, even if it has been improperly issued. The motion is to appoint a certain person committee of the person and property of the alleged incompetent person. This I decline to do because it has been made to appear that a commission is now in force, and on the return of that commission the matter can be brought before the court

Motion denied, without costs.

MARGARET LIMBECK, Plaintiff, v. ELBRIDGE T. GERRY, Defendant.

(Supreme Court - New York Trial Term, February, 1896.)

1. FALSE IMPRISONMENT - WHAT CONSTITUTES.

False imprisonment is the unlawful restraint of a person contrary to his will, either with or without process of law. It is a trespass to the person, committed by one against another, by unlawfully arresting and detaining him against his will; a direct wrong or illegal act in which the defendant must have participated, or the act must have been of his direct or indirect procurement. Two things are requisite in order to constitute the offense: (1) Detention of the person; (2) the unlawfulness of such detention. A pure, naked, unlawful detention, unaffected by any question of motive or purpose, constitutes false imprisonment. The want of lawful authority is an essential element of the offense; malice is not.

In order to constitute an arrest, an actual laying on of hands or personal violence is not necessary; it is simply necessary that the arrested party be within the control of the officer or other person making the arrest and submit himself to such control in consequence of some claim of right to make the arrest or authority to make it by such officer or other person. Any deprivation of the liberty of another, without hi consent, whether it be by actual violence, threats or other

Supreme Court, February, 1896.

[Vol. 15. wise, constitutes an imprisonment within the meaning of the law. The act relied upon as an arrest must have been intended as such and so understood by the party arrested, or there is no imprisonment. 3. SAME.

It is not absolutely necessary to show that the defendant gave personal orders or directions to the police touching the arrest in order to establish a prima facie case against the defendant. If it is shown that the defendant made a charge against the plaintiff, and the surrounding circumstances and the conduct and acts of the defendant raise a fair and reasonable presumption that a wrongful act was ordered or directed to be done by the defendant, there is enough to cail upon him to answer the charge and rebut the presumption. 4. SAME

LIABILITY OF PERSON MAKING A CHARGE OF CMIME.

If the defendant merely complained to the police authorities of the robbery and stated various circumstances of suspicion which had come to his knowledge, and the police officer made inquiry into those circumstances and on his own authority arrested plaintiff, the defendant is not liable.

Ordinarily no person can be arrested or taken into custody without a warrant; but if a felony or a breach of the peace has in fact been committed by the person arrested, the arrest may be justified by any person, without a warrant, whether there was time to procure a warrant or not; yet, if an innocent person be arrested upon suspicion by a private individual, such individual is not excused unless such offense has, in fact, been committed, and there was reasonable ground to suspect the person arrested.

The burden of proof in an action to recover damages for false imprisonment is upon the plaintiff, and in order to recover he must establish by a fair preponderance of the evidence that he was arrested at the direction or procurement of the defendant, and without probable cause.

7. SAME -- PROBABLE CAUSE.

Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that the person accused is guilty of the offense with which he is charged. It does not depend upon the guilt or innocence of the accused, or upon the fact whether a crime has been committed. A person making a criminal accusation may act upon appearances; and, if the apparent facts are such that a discreet and prudent person would be led to the belief that a crime had been committed by the person charged, he will be justified, although it turns out that he was deceived and that the party accused was innocent. Public policy

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Supreme Court, February, 1896.

requires that a person shall be protected who, in good faith and upon reasonable ground, causes an arrest upon a criminal charge, and the law will not subject him to liability therefor. But a groundless suspicion, unwarranted by the conduct of the accused or by facts known to the accuser when the accusation is made, will not exempt the latter from liability to the innocent person for damages for causing his arrest.

If the plaintiff, up to the time of his alleged arrest, uniformly bore a good reputation for honesty and integrity, and the defendant knew his reputation to be such up to the time of such alleged arrest, then that fact is a proper one to be considered by the jury in connection with all other evidence in the case in determining whether or not defendant had probable cause to believe, and did believe in good faith, that the plaintiff was guilty of the crime of which he was suspected.

9. SAME - DAMAGES.

If an illegal arrest is maliciously and wantonly made, exemplary or punitive damages may be awarded.

TRIAL of issues in an action brought to recover $50,000 damages for alleged false imprisonment.

The facts, so far as they are material, are stated in the charge.

Edwin T. Taliaferro, for plaintiff.

De Lancey Nicoll and George G. Dewitt, for defendant.

GIEGERICH, J. (charging the jury). Gentlemen of the Jury: This action is brought to recover damages claimed in consequence of plaintiff's alleged illegal arrest, or, as it is more usually denominated, "false imprisonment." False imprisonment is the unlawful restraint of a person contrary to his will, either with or without process of law. It is a trespass to the person, committed by one against another, by unlawfully arresting and detaining him against his will; a direct wrong or illegal act in which the defendant must have participated, or which must have been of his direct or indirect procurement. Two things are requisite in order to constitute the offense (1) Detention of the person; (2) the unlawfulness of such detention. A pure, naked, unlawful detention, unaf

Supreme Court, February, 1896.

[Vol. 15

fected by any question of motive or purpose, constitutes false imprisonment. The want of lawful authority is an essential element of the offense; malice is not.

The allegations of the complaint, in substance, are: That on the 25th day of August, 1893, at the city of Newport, in the state of Rhode Island, one Richards imprisoned the plaintiff for the space of two hours; that the defendant aided, abetted and procured such imprisonment, which the plaintiff avers was without reasonable cause and without any right or authority on the part of the said Richards or the defendant, and that the same was done maliciously, with intent to injure the plaintiff, and by force and against her will, and was unlawful; whereby plaintiff was insulted and humiliated and was injured in her credit, character and reputation, and whereby and wherefrom she suffered great pain and anguish of mind and body. The answer of the defendant is a general denial of these allegations which I have read; and, as a further defense and in justification of all of defendant's acts in the premises, he alleges, in substance, as follows: That in the latter part of June, 1893, in London, England, the defendant engaged the plaintiff as a servant in his family; that the defendant, with his family, accompanied by the plaintiff, arrived in New York from England about July 5, 1893, and proceeded to Newport, Rhode Island, where they occupied a cottage in said city; that the services of the plaintiff were specially rendered to defendant's eldest daughter as maid and personal attendant, and in the performance of such duties the plaintiff had charge of the room and personal effects of defendant's said daughter; that on or about August 17, 1893, during the absence of this defendant and his family from said cottage, which was left in charge of defendant's servants, including the plaintiff, a felony was committed in said cottage, and certain valuable jewels and jewelry were stolen from the room occupied by the defendant's said daughter; that the articles stolen consisted of several diamond pins, a pearl bracelet and a diamond and emerald ring, which were usually kept in a bureau drawer in boxes; that the articles were taken from the boxes and each box closed and

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Supreme Court, February, 1896.

replaced; that articles of solid silver which were on the bureau and other valuable articles in the bureau were not taken; that upon the discovery of said felony notice thereof was given to the police authorities, and B. H. Richards, a police officer of the city of Newport, proceeded to investigate the circumstances of said robbery, and that all of defendant's servants, excepting the plaintiff, had been in defendant's employ for a long time. In addition to the answer as originally drawn (the same having been amended on this trial) it states that when the defendant first met the plaintiff she wore an unusual kind of jewelry; that she had the custody of the jewels; that the defendant was never robbed before; that it was known to the plaintiff that he and his family would be away on the day this supposed robbery took place; that neither the silverware nor the other pins which were in the room of his daughter were taken; that there was no evidence of disorder in the room; that other articles of greater value which might have been taken were not; that the plaintiff represented one Steers to be a half-brother when in fact he was not such; that she went out walking at an unusually early hour in the morning with a married man whom she also represented to be her brother; and that there was no explanation made by her of the robbery, nor why she had not locked up the jewelry.

And the answer further alleges that on or about the 25th day of August, 1893, the said B. H. Richards called at defendant's cottage and requested the plaintiff to accompany him to the office of the chief of police and make a statement in reference to said felony; that thereupon the plaintiff accompanied said Richards to the police headquarters, and subsequently returned to defendant's house; that on the 28th day of August, 1893, the plaintiff left defendant's service; that this defendant never made any charges or accusations against said plaintiff in reference to said felony; all his acts in the premises were without malice, and that there was reasonable cause for his action.

The facts I have stated are also alleged in mitigation of