An administrator would not ordinarily be allowed to testify to anything occurring before the death of the decedent which would prejudice the interests of the estate, but an executor might testify to any proper circumstance surrounding the execution of the will."

§ 2098. When administrator is incompetent to testify.-In Indiana it has been held that where an administrator has paid a certain claim he will not be allowed to prove the justness of the claim, if by his mistake he would have to reimburse the estate. 91 An executor or administrator may only testify concerning a claim due him from the estate, when the court grants such permission; and the estate is properly represented by some one appointed by the court to defend the claim.92

§ 2099. Deposition of decedent.-In Indiana, where the deposition of the decedent has been taken, or his testimony, concerning the same transaction, is on record, either in the case at issue or in another case, where his testimony covered the same ground, this deposition or record may be used, and the adverse party will be competent to testify for himself, but only so far as the matter is embraced by the deposition or former testimony.93 And it is held that the fact that such a deposition is on file is enough to allow the adverse party to testify as to the matters covered by it and thus remove the incompetency.9*

§ 2100. Competency of a co-defendant with administrator.-In New York, in an action upon a joint note or joint contract, against the surviving maker and the executor or administrator of the deceased, the surviving maker, having an interest in holding the codefendant liable, to reduce his share of the judgment, is incompetent as to transactions that occurred between himself and the deceased."5

90 Covert v. Sebern, 73 Iowa 564, 35 N. W. 636; Daugherty, Adm., v. Rogers, 119 Ind. 254, 3 L. R. A. 847, 20 N. E. 779; 1 Jarman Wills 380. 91 Goodwin v. Goodwin, 48 Ind. 584. * Bentley v. Brown, 123 Ind. 552, 24 N. E. 507.

Webb v. Corbin, 78 Ind. 403. * Coble v. McClintock, 10 Ind. App. 562, 38 N. E. 74; see also, Vol. II,

§ 737, n. 52, for similar rulings in other states.

95 Wilcox v. Corwin, 117 N. Y. 500, 23 N. E. 165; but see, Fletcher's Adm. v. Sanders, 7 Dana (Ky.) 345, 32 Am. Dec. 96, which holds that a party may be a witness for himself, if his adversary consent, and his deposit read without objection may operate for himself as well as his

The deposition of a competent witness at the time of taking the deposition is not rendered inadmissible by a subsequent marriage with the administratrix on whose behalf the deposition was taken, where the cause for taking it still existed.9

co-defendant, especially if he be insolvent and have no real interest.

96 Cameron v. Cameron, 15 Wis. 1, 82 Am. Dec. 652.

§ 2101. False imprisonment-Definition.-Judge Valentine, of the Kansas Supreme Court, has given a most apt definition of false imprisonment in the following language: "False imprisonment is necessarily a wrongful interference with the personal liberty of an individual. The wrong may be committed by words alone, or by acts alone, or by both, and by merely operating on the will of the individual, or by personal violence, or by both. It is not necessary that the individual be confined within a prison, or within walls; or that he be assaulted, or even touched. It is not necessary that there should be any injury done to the individual's person, or to his character, or reputation. Nor is it necessary that the wrongful act be committed with malice, or ill-will, or even with the slightest wrongful intention. Nor is it necessary that the act be under color of any legal or judicial proceeding. All that is necessary is, that the individual be restrained of his liberty without any sufficient legal cause therefor, and by words or acts which he fears to disregard." "Two things are requisite

1 Comer v. Knowles, 17 Kans. 436.

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: malice is not." The authorities generally agree on the proposition that false imprisonment is the illegal restraint of the person of any one against his will. Generally it includes an assault and battery, or at least a technical assault. And false imprisonment has been defined to be the "unlawful restraint of a person without his consent either with or without process of law." And by another court as being in the "nature of a trespass to the person committed by one against another in unlawfully arresting or detaining him against his will." And if a person is imprisoned without process, and such imprisonment is unjustifiable, it is false imprisonment."

§ 2102. False imprisonment and malicious prosecution-Distinction. The distinction must be observed between false imprisonment and malicious prosecution, both in pleading and proof. At common law the action for false imprisonment was trespass on the case; for malicious prosecution it was trespass vi et armis. Where detention. or imprisonment is without authority and against the will, it is false imprisonment, whether with or without malice or want of probable cause. Where the detention or imprisonment is under legal process, but the action has been instituted and prosecuted maliciously and without probable cause, it is malicious prosecution. Indeed, in the latter there need be no imprisonment. False imprisonment is based either upon a void writ or where the arrest is made without writ and without reasonable grounds therefor; while malicious prosecution is

'Limbeck v. Gerry, 15 Misc. (N. Y.) 663.

* State v. Lunsford, 81 N. Car. 528; Hobbs v. Ray, 18 R. I. 84; Kirk v. Garrett, 84 Md. 383.

'Johnson v. Bouton, 35 Neb. 898. * Burns v. Erben, 40 N. Y. 463.

Murphy v. Martin, 58 Wis. 276; Gelzenleuchter v. Niemeyer, 64 Wis. 321; King v. Johnston, 81 Wis. 578; Bergeron v. Peyton, 106 Wis. 377.

Rich v. McInerny, 103 Ala. 345; Colter v. Lower, 35 Ind. 285; Boaz VOL. 3 ELLIOTT Ev.-38

v. Tate, 43 Ind. 60; Comer V. Knowles, 17 Kans. 436; Turner v. Walker, 3 Gill & J. (Md.) 377; Everett v. Henderson, 146 Mass. 89, 14 N. E. 932; Jackson v. Knowlton, 173 Mass. 94; Ahern v. Collins, 39 Mo. 145; Marks v. Townsend, 97 N. Y. 590; Brown v. Chadsey, 39 Barb. (N. Y.) 253; Berry v. Hamill, 12 S. & R. (Pa.) 210; Herzog v. Graham, 9 Lea (Tenn.) 152; Murphy v. Martin, 58 Wis. 276.

J

based upon a valid writ issued maliciously and without probable cause. In actions for false imprisonment, at most, but two things need be proved: (1) Detention of the person; (2) the unlawfulness of such detention. While in actions for malicious prosecution the proof must establish the propositions: (1) The existence of malice; (2) want of probable cause; (3) the favorable termination of a prosecution. It has been held that where the plaintiff shows that the defendant has deprived him of his liberty by unlawful means, malice and the want of probable cause will be presumed.10 It seems to be the rule that in actions for false imprisonment the question of probable cause, when involved, should be submitted to the jury.11 In drawing the line of distinction between these two classes of cases, the Supreme Court of New York states the rule as follows: "It is obvious that these two classes of wrongs and remedies require different rules both of pleading and evidence, and are essentially distinct. In an action for false imprisonment, the gist of the action is an unlawful detention. Malice in the defendant will be inferred, so far at least as to sustain the action, and the only bearing of evidence to show or disprove actual malice is upon the question of damages. So, also, probable cause, or reasonable grounds of suspicion against the party arrested, afford no justification of an arrest or imprisonment which is without authority of law. There are some cases in which the existence of reasonable ground of suspicion is spoken of as a defense in actions for false imprisonment; but upon examination it will be found that these cases turn upon the authority given to magistrates in particular instances to arrest upon suspicion merely, to prevent or punish crimes, and in which, therefore, a reasonable suspicion is a sufficient authority and justification for an arrest; or else they are cases in

Sheppard v. Furniss, 19 Ala. 760; Watson v. Watson, 9 Conn. 140; Lovier v. Gilpin, 6 Dana (Ky.) 321; Winchester v. Everett, 80 Me. 535; Warfield v. Walter, 11 Gill & J. (Md.) 86; Hayden v. Shed, 11 Mass. 500; Fisher V. McGirr, 1 Gray (Mass.) 44; Wilmarth v. Burt, 7 Metc. (Mass.) 257; Mullen v. Brown, 138 Mass. 115; Cassier v. Fales, 139 Mass. 461; Hobbs v. Ray, 18 R. I. 84; Lauzon v. Charroux, 18 R. I. 467; Forrow v. Arnold, 22 R. I. 305; Lisabelle v. Hubert, 23 R. I. 456; Calder

one v. Kiernan, 23 R. I. 578; Murphy v. Martin, 58 Wis. 276.

'Thorp v. Carvalho, 14 Misc. (N. Y.) 554; Warren v. Dennett, 17 Misc. (N. Y.) 86; Cunningham v. East River &c. Co., 60 N. Y. Super. 282.

10 Warren v. Dennett, 17 Misc. (N. Y.) 86; Perry v. Sutley, 18 N. Y. S. 633.

11 Perry v. Sutley, 18 N. Y. S. 633; Murray v. Long, 1 Wend. (N. Y.) 140; Hall v. Suydam, 6 Barb. (N. Y.) 83; Wanser v. Wyckoff, 9 Hun (N. Y.) 178.