#### Charles Dusenbury, Appellant, *against*William S. Keiley, as Receiver, &c., Respondent.

(Decided February 2d, 1880.)

A cause óf action for false imprisonment is complete as soon as the imprisonment ceases, and the statute of limitation there begins to run against it, and becomes a bar to the action at the end of two years from the cessation of the actual confinement.

Where, therefore, the plaintiff was arrested under a warrant issued by a magis-

*538trate without jurisdiction, and was released from custody on giving a bond for his appearance, and appeared before the magistrate from time to time, according to the condition of the bond: *held,*that as the warrant was void, the plaintiff's cause of action was complete when he was released from actual custody on giving the bond ; and that the statute of limitations commenced to run at that time, and was a bar to the suit, as it was not commenced until more than two years thereafter ; that the plaintiff’s appearance before the magistrate thereafter was voluntary, as the warrant was void, and his bail could not have been held liable.

Appeal from a judgment of this court dismissing the complaint, and from an order denying a motion for a new trial.

On the 14th day of November, 1876, upon the application of the defendant, Mr. Justice Speir, of the Superior Court, issued a warrant under what is commonly called the Still-well act for the arrest of the plaintiff, and on the 15th of November the sheriff arrested the plaintiff and produced him in court.

The counsel for the plaintiff objected to the regularity of the proceeds, the jurisdiction of the judge, and the sufficiency of the papers, and also gave the recognizance and bond as provided by said act, and such proceedings were thereupon had that in February, 1877, an order was made by said judge, vacating and setting aside said warrant and exonerating the bail from liability.

Thereupon the cause was, upon application of the defendant, removed by *certiorari*to the general term of the Supreme Court, which court, on the 15th day of October, 1877, reversed the said order of Judge Speir, and remitted the matter to said judge to be further proceeded with.

On the 7th day of January, 1878, Mr. Justice Speir made an order making the order of the general term of the Supreme Court the, order of the Superior Court, and directing the plaintiff to appear under the said original warrant, and requiring his bail then and there to produce him. As required t by said last mentioned order, the plaintiff voluntarily appeared, and such proceedings were thereupon had that an order of commitment was issued by Mr. Justice Speir against the plaintiff.

Thereupon the plaintiff removed the proceedings by *539
      *certiorari*to the general term of the Supreme Court, who affirmed the last mentioned order of Mr. Justice Speir. The plaintiff then appealed to the Court of Appeals, and the Court of Appeals ordered and adjudged that the order of the general term of the Supreme Court, and the warrant of Mr. Justice Speir, and all proceedings had thereunder, be vacated and set aside upon the ground and for the reason that said justice never had any jurisdiction in the matter.

The judgment of the Court of Appeals was made the judgment of the Supreme Court May 28th, 1879, and the warrant and all subsequent procedures thereunder vacated and set aside.

This action to recover damages for false imprisonment was commenced July 7th, 1879.

The court below (Charles P. Daly, Ch. J.) held that the cause of action arose out of the arrest of the plaintiff, which was put an end to by the decision of the special term which discharged the order of arrest, and that the action should have been brought within two years from the plaintiff’s release from imprisonment under that order; that, although the reversal by the general term of the order of the special term discharging the plaintiff from the arrest restored to the plaintiff in that action the right to have the defendant arrested again, and although an order to that effect, in accordance with the general term decision, was made by the judge at special term, in pursuance of which such arrest might have been made, yet that he had not been so as to create a distinct cause of action for a further wrongful imprisonment ; that there was no rearrest or actual imprisonment of the person after the plaintiff’s discharge under the special term decision.

*Rail £*Blandy, for appellant.

*I). M.*Porter, for respondent.

Van Brhht, J. [after stating the facts as above].—

When we consider the distinction between an action for false imprisonment and one for malicious prosecution, all uiffi*540culties in the solution of the question presented by this appeal seem to be removed.

An action for false imprisonment will lie where there is an imprisonment' without any process whatever, or under-color of process wholly illegal, without regard to the question whether any crime has been committed or debt due.

An action for malicious prosecution will lie where there has been an arrest made at the instance of a prosecutor in a criminal proceeding, or a plaintiff in a civil suit, without probable cause, by a regular 'process and proceeding which the facts did not warrant, *as appears by the result.*

The words, as *appear*by the result, make the essential difference between actions for false imprisonment and those for malicious prosecution. An action for malicious prosecution will not lie until there has been a determination in the proceeding in which the arrest was made that the facts did not warrant the arrest.

An action for false imprisonment accrues the instant the imprisonment takes place, and becomes complete the instant the imprisonment ceases.

In the one case jurisdiction was had of the subject-matter and the person by the officer issuing the warrant; in the other, the officer never had jurisdiction to issue the process, if the arrest was under process. The-plaintiff in this action, claiming that his arrest was under a process wholly illegal, brought this action, as his counsel claims, for false imprisonment.

There was no imprisonment of the plaintiff after he was released upon the giving of bail. His subsequent appearance was wholly voluntary. The defendant imposed no restraint whatever upon him. His bail "could not have been held liable if he had failed to appear *(Broadhead*v. *McConnell,*3 Barb. 175), because the judge issuing the warrant had never acquired jurisdiction, and the defence could have been set up in an action upon the bond, and would have prevented any recovery. Therefore, the only cause of action rested upon the imprisonment at the time of the execution of the original warrant.

*541The judge issuing that warrant having never acquired any jurisdiction in the matter, it was never any protection to the party at whose instance it issued.

If the facts proved had shown a cause of action for malicious prosecution, then an entirely different rule would have prevailed. No cause of action would have arisen until it had been finally determined that the facts did not warrant the arrest.

I am of the opinion, therefore, that the statute of limitations was a defense to this action, and that the judgment appealed from should be affirmed.

Joseph F. Daly, J., concurred.