Welsh v. Cochran, 63 N. Y. 181, is to the effect that one who issues process does not thereby authorize or become liable for the acts in excess of his lawful authority of an officer acting thereunder. It follows that for the illegal act of the sheriff in confining plaintiff, while in custody under an execution against the person, among convicts and criminals, the defendant was not responsible. For that violation of law the sheriff was responsible, and he alone. The refusal of the request thus to charge was error. Had the-jury not considered that indignity as chargeable to defendant, it is unlikely that so large a verdict would have been rendered.
It appears in testimony that plaintiff has, in effect, received $4,435 from the principal in the tort by the discharge of a judgment for that amount. Bequest was made that the jury should credit that amount in assessing the damages, which request was refused. The result was to allow a double recovery, and to allow plaintiff to receive, were the judgment to stand, $5,435, for an injury of $1,000. The request should have been granted.
A question remains which goes to the whole action. It appears that in consideration of the agreement to discharge said judgment of $4,435, the plaintiff has assigned the claim now in suit to the plaintiff in the execution upon which the arrest now complained of was made. It was he who directed the issue of the execution against the body; he also ratified it after issue. He was thus a joint tort-feasor, for whose, benefit the wrong was done. If this judgment stands, he will reap the benefits, will profit by his own wrong, and be allowed to punish his ag§nt for obeying instructions. The law will not permit the principal tort-feasor to buy and enforce against his subordinates claims for damages occasioned by his instructions.
Other exceptions are urged, but as the one last considered is fatal, they do not need to be considered, judgment reversed, new trial ordered, costs to abide event. All concur.