Miller v. Foley

By the Court, W. F. Allen, J.

We held in Graff v. Mullin, (April, 1856,) following the current of authority, that process for the arrest of an individual must so describe the person intended that the officer would know who to arrest, and the party whose liberty was threatened might know whether he was bound to submit} and that it was not sufficient that the person in fact intended was arrested. In that case the initial, only, of the Christian name of the party was given in the warrant. This is the rule, as well in civil as in criminal cases. (Griswold v. Sedgwick, 6 Cowen, 456; S. C. 1 Wend. 126. Scott v. Ely, 4 id. 555. 1 Russ, on Crimes, 619. Hoye v. Bush, 1 M. & Gr. 775.) The recital in the warrant, of a complaint against the plaintiff, cannot aid the defendant. At best it left it doubtful which was the true name of the party to be arrested. A party cannot have two Christian names. (Bex v. Newman, 1 Ld. Bay. 562.) It left something to be spelt out from the whole warrant. Had the name of the party intended by the warrant and actually arrested chanced to be William instead of John B.; the statement ef the name in the recital might with some plaúsibility have been claimed to be a surplusage. The mandatory part of the warrant is that which gives it efficacy as a process, and under that the officer must justify. The recital of the complaint against the plaintiff is very high evidence that he was the individual intended to be designated by the name of William, in the warrant of arrest proper. But that is not sufficient. In Scott v. Ely, (supra,) there was no doubt that the right person was arrested. The recital in this case is no moré tionclusive than was the evidence in that case, and still the arrest was held unlawful. In Hoye v. Brush there was just as little doubt that the plaintiff was the individual intended, and yet the officer was held liable for the arrest. In Griswold v. Sedgwick, the evidence that the plaintiff was the party intended to he arrested was record evidence and was recited in the process. In other words, upon the face of the process it appeared that the plaintiff was the party in tibhtempt, and yet as in the process itself—that is, the clause commanding the arrest—he was misnamed in respect to his Christian name, all boncernect in the arrest Were held liable for the false imprisonment. The process redited that on the 21st day of February, 1824, by an order made in the circuit tidtirt by William P. Van Hess, one of the judges of that court, in a cause then pending between Dafaiel S. Gris-wold, (the plaintiff,) complainant} and tiill, defendant, it was ordered that ti-riswold pay to the clerk tif that court $1200 in ten days after notice of the order, and that the said Samuel S. Griswold had neglected to comply with the order, though more than ten days had elapsed, aúd commanded the marshal to take the said Samuel S. Griswold,” <&c. The process recited an order Upon Daniel S. GrisWold, and commanded the officer to arrest the said Samuel S; Griswold. Here the process recites a complaint against JdhM, R. Miller, arid commands the officer to arrest the said William Miller. The cases are not distinguishable. Had the defehdant proved that a felony had been committed, and that there was reasonable cause to suspect the plaintiff of the crime, he might have justified without the warrant j but that case was not made, by the answer or the evidence.

[Onondaga General Term, April 6, 1859.

Pratt, Bacon, W. F. Alle and Mullin, Justices.]

The judgment must be reversed, and a new trial granted; costs to abide the event.