This is an action for two several alleged illegal arrests and false imprisonments of the plaintiff by the defendants.
The defendant Kennedy is the superintendent; the defendant Davis, a captain; and the defendant Smith, a patrolman, of the Metropolitan Police.
An order of arrest was granted by a justice of this court, holding the defendants to bail, each in the sum of $1,000.
This order of arrest was, on motion of the defehdants, by an order made at special term, vacated and discharged as to the defendants Kennedy and Davis, and modified as to the defendant Smith, by reducing the amount of bail required of him to $250.
The case comes before us by the appeal of the plaintiff from the order vacating and discharging the order of arrest as to the defendants Kennedy and Davis, and modifying it as to the other defendant.
I infer, from the papers, that neither of the defendants had been arrested when the order vacating and modifying the order of arrest was made; that the return-day of the order of arrest as originally granted had been extended by an order, for the purpose of enabling the defendants to make the motion to vacate the order, before the defendants should be arrested.
By the 27th section of the act passed April 10,' 1860, to amend the Metropolitan Police Act, passed April 15, 1857 (laws of 1860, 443, ch. 259), the commissioners of the Metropolitan Police, “in furtherance of the police government ■ of' the said Metropolitan Police District, and for.the promoting and perfecting the police discipline of subordinates, and of the members of the Metropolitan Police force, are empowered to enact, modify, and repeal, from time to time, rules and regulations of general discipline; wherein, in addition to such other provisions as may he deemed expedient by said commissioners, there shall be particularly defined, enumerated, and distributed,.the powers and duties of the superintendent of police force, and of the inspectors and captains of the police force, &c., provided, that such rules or regulations shall not conflict with any *295of the provisions of this amended act, or with the Constitution of the United States, or of this State.”
By the 34th section of the same act, it is declared that “ no person holding office under this act shall be liable to military or jury duty, nor to arrest on civil process, or to service of subpoenas from civil courts, while actually on duty.”
It appears from the affidavit of the defendant Kennedy in this case, that under section 27 of said act, the commissioners of the Metropolitan Police enacted or passed certain rules and regulations of general discipline; and that by section 60 of said rules, it was provided that the superintendent, inspectors, captains, and sergeants of police will be deemed to be always on duty.
It appears from the opinion of the learned justice who made the order at special term, vacating and modifying the order of arrest in this case, and it was conceded on the argument before us, that the order of arrest was vacated and discharged, as to the defendants Kennedy and Davis, on the ground that the one was the superintendent, and the other a captain of the Metropolitan Police, when the alleged arrests and false imprisonments of which the plaintiff complains took place ; and that being such officers, by the 34th section of the act, and the 60th section of the rules and regulations enacted or passed by the commissioners under the 27th section of the act, they were as such officers free from arrest on civil process, at all times and under all circumstances.
It is difficult to see upon what other theory the order vacating the order of arrest as to the defendants Kennedy and Davis, and modifying and retaining it as to the defendant Smith, could have been made.
It is plain, that it was an error to vacate and discharge the order as to the defendants Kennedy and Davis on this ground.
The 34th section of the act, by declaring that no person holding office under the act shall be liable to arrest on civil process, or to service of subpoenas, &c., while actually on duty, plainly impliedly declares, that persons holding office under the act shall be liable to arrest on civil process, or to service of subpoenas, &c., while not actually on duty.
This section impliedly declares, that no person holding office under the act shall be deemed to be actually on duty at all *296times and under all circumstances, so as never to be liable to arrest or service of subpoena while holding the office.
The police commissioners had no power, under the 27th section of the act, to enact any rule or regulation, in conflict with the 34th section. The 27th section contains an express proviso to that effect; and independent of such proviso, they would have had no power to enact or pass a by-law or regulation inconsistent with an express provision of the act conferring on them their power.
But I do not think the 60th section of the rules or regulations enacted by the commissioners was intended to interfere with the 34th section of the act. It was intended to be, and is, a mere rule or matter relating to' discipline, as between the commissioners and those holdi/ng office wnder them. It was not intended, and cannot be deemed, to affect, in any manner, the rights of third parties under the 34th section of the act, where persons holding office under the act are not actually on duty.
It would be an extraordinary thing to hold, that the superintendent or a captain of the Metropolitan Police can at no dime or wnder any circumstances be served with a subpoena, or compelled to appear and testify in a civil court; and yet, the 34th section of the act places the same restriction on the right .to subpoena as it does on the right to arrest.
The order at special term should be reversed, so far as it vacated the order of arrest as to the defendants Kennedy and Davis; but I do not see why the other part of the order should not be affirmed.