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r
^W^^^"?^!^^
AAQ:
CPt
y
A TREATISE
OM THE LAW OF
MALICIOUS PROSECUTION,
FALSE IMPRISONMENT,
AND THB
ABUSE OF LEGAL PROCESS,
AS
ADMINISTERED QT THE COURTS OF THE UNITED
STATES OE AMERICA,
INCLUDUIO
A DISCUSSION OP TttET LAW OB MALICE AND WANT
OF FBOBABLE CAUSE, ADVICE OF COUNSEL^
END OF THE PB09ECUTI0N, ETC
BY
MARTIN L. KEWELL,
OOXIKBBLOB. A^LAW,
Auraos or *^8mssix^ liamaim bnmconom to JuBm^**
pHICAQOt
CALLAGHAl!r AND COMPANY.
1892
OOFTBIOBT, 1808,
BT
MARTIN L NEWELL.
OTATE JOIffiNJX PBIHTUIS OnDAHT,
PREFACE.
In the preparation of this work it has been the design of
the author to glean from the courts of last resort in the United
States the leading adjudications upon the law of malicious
prosecation, false imprisonment and the abuse of legal pro-
cess. In the work it is hoped that everything needed by the
practical lawyer, both in the prosecution and defense of ac-
tions for the wrongs under consideration, will be found satis-
factorily discussed and amply illustrated by adjudicated cases.
In the first chapter the action for malicious prosecutions,
both in civil and criminal cases, its essential elements, the
nature of the wrong and where the action lies, is fully and
exhaustively discussed, with illustrations of the law as applied
by the American courts in adjudicated cases.
Next the wrong known as false imprisonment is discussed,
involving the law of arrest in civil cases and in criminal cases
with and without process, amply illustrated by adjudicated
<}ases from the American courts. As arrests without process
frequently depend upon the nature of the offense committed,
a brief but satisfactory discussion of felonies and misdemean-
ors, both at common law and under statutes, will be found
in chapter five* Following this will be found a discussion of
the liabilities of persons, both natural and artificial, to re-
spond in damages for violations of personal liberty rights, and
of the action to redress such wrongs in general.
Malice in law and malice in fact, the question of the exist-
ence of probable cause, advice of counsel and the end of the
prosecution as applicable to actions for malicious prosecution,
false imprisonment and the abuse of legal process, are discussed
at large and illustrated by applications of the rules of law upon
these subjects taken from the latest decisions of the American
courts of last resort.
Parties, plaintiff and defendant, infants and adults, attor-
neys and clients, husbands and wives, master and servant^
IV . PBEFAOE.
principal and agent, and corporations public and private, per-
sonal representatives of deceased persons, including the right
of survivorship and other kindred subjects, the law of defenses
and many practical suggestions, are presented in chapters de-
voted to these questions.
Although in many of the states of our Union the common-
law system of pleading does not prevail, it must, we think, be
conceded that it is the foundation of all codes. Ko member
of the legal profession can be a successful pleader without
some knowledge of the old system. The author has therefore
presented an analysis of the declaration at common law in an
action for malicious prosecution, with appropriate comments
upon its component parts, illustrating the subject by a collec-
tion of precedents both under the common law and the codes.
In the chapter upon evidence the law has been given, both
as to the plaintiff's proofs under the general issue and special
pleas of justification, with and without proof of special dam-
ages, as well as the defendant's proofs in all cases.
On the subject of damages will be found an exhaustive
treatise upon the elements of compen^tory damages, the right
to recover exemplary or vindictive damages, and matters in
mitigation thereof. The subject of excessive damages has
been illustrated by numerous applications from adjudicated
cases.
As there is, perhaps, no branch of the law in which the
practitioner, especially the younger menlber of the profession,
feels the need of assistance so much as in the preparation of
his instructions in those jurisdictions where they are required
to be in writing, or in the preparation of requests for special
charges where the charge is given orally, a chapter has been
devoted to this subject, in which will be found numerous illusr
trations and precedents of instructions and requests for special
charges applicable to the trial of cases in which the wrongs
treated of in this work are in litigation.
In many states laws have recently been enacted providing
for the submission to juries of interrogatories for special find-
ings on the matters in controversy. These laws apply with
peculiar force to actions for malicious prosecution, false im-
prisonment and the abuse of legal process. A chapter has
therefore been devoted to the discussion of this subject, in
PSE7A0B. y
which the existing law will be found fully stated, with numer-
ous precedents for the submission of special interrogatories
amply sufficient to guide the practitioner.
The increasing importance of actions for malicious prose-
cution, false imprisonment and the abuse of legal process, and
the absence of any work especially devoted to their discus-
sion, has induced the author to submit this treatise to the
legal profession.
Mabtdt L. Kswell.
GHI0IA.aO» 1892L
I
TOPICAL A:^rALTSIS.
CHAPTER L
OF THB ACTION FOB MALICSOUB FBOfiBCUTIOll*
Of
The nature of the wrong
The action at oommon law • • • • •
Where the action lies ••••••
Ifalioioos proeecntion — Historioal • • T •
The action defined ..«•••
The foundation of the action • « •
Distinction between a malioiouB use and a maliolouB abuse
Where the action will lie generally • • • •
(1) The want of probable cause as an essential element
Probable cause — Advice of counsel, eta •
(2) Malice an essential element • • • •
(8) Acquittal of the plaintiff
How the question of probable cause is to be tried •
(1) By the jury .......
(2) By the court
The action lies for merely preferring an accusation •
Malice in this connection .«•••.
Evidence of malice
An instruction which increased the burden of proof
(1) Malice is not necessarily revenge . • •
(2) Maliciously suing out an attachment • •
The action regarded wiMi jealousy i. • • .
Not favored in law
To be carefully guarded and its principles strictly adhered to
Rights of persons to institute civil suits or criminal prosecutions
(1) In criminal matters . • • • •
(2) In civil matters ..••••
(3) In bankruptcy matters . . • •
Who are liable to respond in damages • •
Attorneys liable to respond, etc. — Liability of .
Liability of attorneys for suing out a writ of ne exeat
The malice of the client does not render the attorney liable
Materiality of malice in actions for prosecuting suits in the name of
third persons without their authority
Criminal informants protected — Honest belief — Strong grounds of
suspicion
(1) Prosecution for felony — Prisoner discharged— The action not
sustained .
(3) Prosecutor liable where the complaint states no offense
8
8
6
6
7
T
10
10
Id
18
18
14
14
14
14
16
17
17
18
21
21
21
23
22
22
22
28
23
28
24
25
28
27
28
20
via
TOPIOAX ANALYSIS.
Sufficiency of the indictment, complaint, etc., in a criminal proaecu
tion as a basis in an action for malicious prosecution •
(1) Complaint showing no offense punishable at law • •
(2) Complaint stating no criminal offense . • • •
Will the action )ie for maliciously prosecuting a civil suit?
Distinction between actions for criminal prosecutions and civil suits
The action lies for maliciously instituting and prosecuting civil suits
Upon what grounds the right to maintain such suits is placed •
The doctrine that action will lie — The law stated by Boss, J. •
Rules of law governing the action ..••••
An arrest and holding to bail not indispensably necessary • •
The express malice must be alleged and proved • • •
The contrary doctrine • • •
(1) Where the action will lie for maliciously, and without probable
cause, prosecuting a civil suit . . . . •
(a) Malicious institution of proceedings in bankruptcy •
(b) Probable cause in civil prosecutions • • • •
(c) Failure of the prosecution ..••••
(d) Advice of oounsel ••..••••
(e) Maliciously suing out an injunction • . • •
(/) Maliciously prosecuting an action of forcible entiy and de-
tainer •
(g) Maliciously instituting a suit in replevin • •
(h) Attaching personal property for a larger sum than was
due ' . •
(2) The contrary doctrine — Where the action will not lie •
Malicious prosecution for suing out an attachment . • •
Attorney's liability for bringing a civil suit • • • •
Survival of the action . . . . . • • «
Survival of the action for malicious prosecution • • •
29
80
81
82
85
85
86
87
89
89
89
40
43
48
48
43
43
44
44
49
50
51
62
63
53
54
CHAPTER IL
OF FALSE IMPRISONMENT.
False imprisonment defined by Blackstone • • •~^«'^* .56
The same defined by Pollock •••••••• 57
The right of personal liberty — Exceptions 58
Restraint of an insane person •••••••• 58
Arrest defined ••••••59
(1) Arrest in civil cases .••••••••59
(2) Arrest in criminal cases . • • • • • • ■ • 00
General rules of law relating to arrests • 00
Detention of the person ...•••••• 62
(1) What is a sufficient imprisonment 62
(a) Detention of person by cashier of a bank . • • • 62
{b) Imprisonment of an infant — Assent immaterial • • • 62
(c) A forcible ejectment , • 63
(d) A sufficient arrest and imprisonment • • • • • 64
TOPICAL ANAXY8IB. IX
<2) What is not anfficient .65
(a) Submitting to detention under a miBapprehen8io& of the law 65
(b) A constable carried away to sea •••••• 66
Summary of the law of arrest •••••••• 66
Arrests with process • • • 67
What is a regular and sufficient warrant • • • • • • 67 ,
The essentials of a criminal complaint and warrant • • • • 67
Officers protected by process, eta ••••••• 68
Arrests without process •••••••••68
(1) At common law *• • 68
(2) Under statutes 69
(1) Time of making an arrest upon view • • • • • 69
(2) Arrest without warrant, justifiable 60
(8) Power to arrest without warrant to be exercised promptly • 71
The manner of arrest 72
The rule stated by Gwynne ••••••••74
The use of hand-cufifs ••••••••• 74
Abuse of process . . • .^^ • • • • ^75
Carrying person arrested out of the jurisdiction • • • • 76
The officer must arrest the right person •••••• 77
A distinction •••••77
Arrest of night-walkers •••••••••78
ThA term defined 78
What is probable cause to arrest a night-walker • • • • 79
Power of magistrates to imprison for breaches of ordinanoes • • 79
Power of magistrates to fix the place of imprisonment • • • 80
Power to arrest in constables and police officers • • • •SO
Special patrolmen — Officers appointed for special duty in stores,
hotels, etc. — Liability of the person who pays them, eta • • 81
Depot-masters not conservators of the peace at common law • • 82
Private })erBons appointed by magistrates — Minors appointed, eta . 82
Arrests by private persons upon view and information • . • 88
(1) Arrests upon view 88
(2) Upon information • 84
Liability of a merchant for arrest upon view by his clerk • 84
Private persons assisting officers ••••••• 85
Duty of private persons making an arrest •••••• 86
Arrest of a fugitive from justice • 86
CHAPTER IIL
OF THB ACnON FOB FALSE IMFRISOIOIBNT.
The form of the action • • • 88
The common-law action of trespass •••••••88
^Where the action lies ••••89
(1) Immunity to judicial officers • 89
<2) Proceeding without jurisdiction of the subject-matter • • 89
<3) Irregular proceedings 90
(4) Abuse of process • • • 90
tS) Proc^ings without process 90
X TOPICAL ANALYSIS.
What 18 necessary to sastain the action . • • . . • .91
(1) P&rty not responsible for process issued without direction or
sanction 91
<2) Liability of justice, constable and prosecutor under Toid proceed-
ings 98
(8) An arrest upon probable cause ••••••• 94
CHAPTER 4.
LIABILnT FOR FALSE DCFBISONICSRT.
Matters discussed in this chapter ••••••• WT
A general rule of liability • • . 9S
(1) Corporation liable for the acts of its agents • • • • 101
(2) Ordering officers to refuse bail 103*
(8) Procuring a writ of ne exeat to issue on insufficient affidavit • lOS
LiabiUty. by ratification 103
Ratification may be express or implied 108
(1) A ratification held not sufficient • 108
(2) Person employing an officer for a lawful purpose not liable for
his wrongdoing 105
Liability of infants . • • • 106
Ratification ••••••. 107
Trespasser ab initid 107
No liability in employing an officer to perform a lawful act • 108
In what cases the liability exists ...••••. lOS^
Liability of parents and persons tnlooo parentis • • . . 10^
Excess of punishment • • . 110
Quardi^n and ward • • • • 111*
Master and apprentice • • • .111
Teacher and pupil • • • • •' Ill'
The criminal action ••• 112
Other similar relations • • • • 118>
Liability of the captain and mate of a vessel for acts of discipline on
the high seas • 118
Liability of keepers of charitable institutions . . • . • 114
Liability of superintendents of asylums for the insane — Not acting
under legal adjudications '• IIC^
The superintendent as a judical officer •••••• 111^
(1) Keepers of charitable institutions •••••• 116
(2) Unauthorized detention of a harmless lunatic • • ' • • 116
Legal adjudications not necessary in every instance • • • • 117
A public investigation not always necessary 118
Further discussion of the subject ...•••• 118
Effect of a judicial inquiry 119
Confinement in an asylum for the insane without judicial authority . 120
Liability of persons apprehending a lunatic without legal process . 121
The right to apprehend and confine insane persons under legal adju-
dications 122
Restraint of insane persons • 122.
TOPICAL ANALYSIS. XI
Bemedy by Tiabeas corpus , 124
The remedy confined to certain cases . • • • ,• • •124
Judicial officers • • • • • 125
The rale of liabUity of judicial officers •••••• 125
Judges of superior courts 126
Excess of jurisdiction and want of jurisdiction distin^ished • . 126
Judges of superior courts^ illegal sentence, imprisonment there-
under • . • • 126
Judges of inferior courts, liable when 184
Judicial officers not liable for acts not in excess of their jurisdiction . 1 85
Beasons for the rule 186
The officer must act in his official capacity • • . • • 188
A mayor as peace officer, not liable for ordering an arrest • • 188
The officer must act within his jurisdiction • . • • • 140
Immunity from liability not affected by improper motives • • 140
BeasoDs for the rule • • • • 141
Jurisdiction • • • 142
What jurisdiction is essential to immunity • • • • • 142
Jurisdiction legally acquired • .. . • • . • • 142
Distinction between superior and inferior courts — Acting within their
jurisdiction 148
The rule applies to all judicial officers 143
Jurisdiction, when presumed and when not -^ Superior and inferior
courts 144
Superior courts — Jurisdiction, when presumed • • • • 145
What is a superior court? . 145
Inferior courts — Jurisdiction never presumed • • • • • 145
What is an inferior court? ^ • • 146
Inferior courts — Justices of the peace — Jurisdiction never pre-
sumed 146
Judges of inferior courts — When not liable for acting without juris-
diction • 147
The common law affords to all inferior courts complete protection • 147
Sufficiency of the complaint and warrant . • • • • 148
Liability of judges of inferior courts in cases of doubtful jurisdiction 160
Reasons for the rule • • • • • 150
The better rule • • • .161
Complaint failing to show where the offense was committed • • 153
Liability when jurisdiction is assumed through mistake of fact • 168
(1) A justice exceeds his jurisdiction knowing the facts • • • 163
(2) Liability, complaint showing the statute of limitations had run
against the offense 155
Judges of inferior courts acting under void and unconstitutional stat-
uces • • • a • • • • • •• • loo
A contrary doctrine • • . . • • • • 155
Liability of judicial officers acting ministerially . . • .157
(1) Liability of justice acting ministerially — Agent for plaintiff • 157
(2) Justice acting in good faith not liable for ministerial acts • .168
Liability — Justice of the peace acting ministerially . • . . 159
ZU TOPICAL ANALYSIS.
Ministerial acts — Corrupt motiyes ••••••• IM
(1) A party not liable for the acts of the justice . • . .160
(2) Issuing mittimua after suffering the defendant to go at large for
a year • 161
Liability of a justice of the peace in issuing process without authority
of party in interest 162
SerTice of process by unauthorized persons void — Liability of jos-
tice for proceeding under such service 162
Liability of a justice of the peace acting judicially • • • • 168
Liability for the abuse of legal process ..«.»• 16S
(1) Liability of justice for abuse of process 163
(2) Use of criminal process to enforce the settlement of a debt • 164
Liability of guoai-judicial officers 166
^asi-judicial tribunals — Overseers of the poor • • • • 167
Arrests by officers : (1) With process ; (2) Without process • • • 167
The officer protected by process regular on its face . • • • 168
What is process regular on its face • . . - • • • • 168
Officer protected 168
An infant illegally arrebted for debt — Regular process protects . 169
When process regular on its face does not protect the officer • • 170
(1) Liability of officer under regular process 171
(2) Process issued by a court having jurisdiction of the subject-
matter — Protects the officer . 172
An officer's authority is derived from his writ 172
(1) Arrest of the right person by a wrong name • • • • 172
(2) Imprisonment by a wrong name 17S
(3) Arrest of a person by a wrong name not sustained — When it
might be . . . .174
Officer having process not required to examine into extrinsic matters 176
An officer protected by execution issued on a judgment obtained
by fraud 176
Arrests for felony, without warrant 176
(1) Irregular process — Liability of officer and complainant in crim-
inal cases — Abuse of process 177
(2) Arrest of a harmless lunatic at a camp-meeting, eta . • .179
(8) Arrest without warrant — Right to a speedy trial — Abuse of
power 180
(4) Arrest of drunken rioters on view ....•, 182
Detention by officers under dead, void or voidable process . • . 183
(1) Irregular act of an officer — Dead process — Ratification . . 183
(2) Arrest on body execution after satisfaction of the judgment —
Notice to officer • . . . ,183
(8) Execution against the body without judgment . • . ,185
(4) False imprisonment lies for an arrest under voidable process . 185
Abuse of process , 186
(1) Criminal liability for abuse of process 187
(2) Taking the prisoner out of the jurisdiction 188
(8) Object of the writ to extort money — No protection . . ,189
Liability of executive officers for the acts of their deputies . , 189
TOPICAL ANALYSIS. XIU
liabOity of sheriffs for the acts of their deputies • . • . 190
The acts of the deputy for which the sheriff is liable must be done
colore officio » . .191
liability of the sheriff to resp^pnd in exemplary damages for the con-
duct of his deputy 192
Private persons assisting officers in executing civil process • .193
(1) Private persons called upon to assist a deputy-sheriff . . 193
{2) The person responding to the call for assistance does so at his
perU 194
Private persons assisting officers in the execution of criminal process 194
The rule of liabUity 195
liability of a person assisting in the execution of a search-warrant
illegal on its face 195
Liability of persons who officiously, etc., assist officers in the execu-
tion of process 197
Private persons — Arrests by without warrant 197
Private persons appointed to execute process • • • • • 197
^oid process, if regular on its face, protects a private person appointed
^y the magistrate to serve it 198
^^^ntion under erroneous or void dtders of court — Protection to
persons acting under them 199
^ Liability of persons acting under, etc., orders, etc. • • • 200
Iiriprisonment under order of court afterwards vacated • . 202
\0) X)etention under a rescinded order • 203
IrOSe^iition in criminal cases — Liability . • • • • . 203
(1) ^**06ecu tor's conduct — Reckless, unreasonable and without prob-
able cause 204
(2) Liability of prosecutor for illegal act of justice .... 205
(^ Hatification by prosecutor of an illegal arrest in a criminal case 207
^*"*8®cutor must act in good faith 207
Not required to act from public motives . ... . . .207
«r8ons directing the execution of legal process • • • . 208
(I) Liability of person causing the arrest of another • • . 209
^' Liiubility of person making complaint 210
v^) Inciting an officer to make an arrest on a void writ . . . 210
l*''8on who merely directs the attention of an officer to a violation
? *^he law not necessarily liable 211
^»ent*B liability for the acts of his attorney 212
I ^^pias ad satisfaciendum issued after satisfaction of judgment 218
^ Liability of attorney for acts of his clerk — Client's liability . 214
' Liability of plaintiff in execution — Void writ .... 215
' -Execution upon void judgment — Liability of attorney and
^ client — Procuring false return 216
jf'Pp^tion — When lUble, etc 217
^^Pal corporations — The cardinal inquiry 218
j^ ■^Municipality not liable for assault, etc.— By police, etc. . . 219
tl ^^^ °^^ liable for false imprisonment, etc. — Ratification . 220
;^ Liability of municipal corporation for acts of its officers . . 221
I'^oUifcy for the torts of employees • . 222
XIT TOPICAL ANALYSIS.
Liability for malicious prosecadon and falw imprisonment . . iXS
(1) Liability of a railroad corporation for false imprisonment . . 233
Partners, principals, agents, etc.— Liability for torts, etc, . .- , 2SS
A partner held not to be liable 3W
Ratification ...,2t>
Detention by keepers of prisons, jailers, eto. . . > , . TSk
Confinement in tbe penitentiary under void convictitm — ^le tort
cannot be waived S80
Detention %y private persons . . tSl
(1) Detention by cashier closing tbe bank • • • , . tSt
(2) Not, a case of self-defense ' Wl
Detention by oEBoere of tbe army and navy . ■ • . • SSS9
CHAPTER V.
OF EVLONIES AND laBDEKKABOBg,
A felony at common law defined .•..>.• 833
A misdemeanor defined , . . .*>••• 234
Statutory classification 234
Felonies and misdemeanors under statutes ... > . . SS5
CHAPTER TL
OF KALIOB.
Malice explained by Blackstone . . . . 2 • • . ■ ■ 2W
Malice as term of law • • • . 2ST
Necessary ingredients of malice .....*•. S8T
Tlie law implies malice, when ........ S88
Malice in fact immaterial, when ....... 388
Express malice defined ......... 289
Malice in law 3S»
Distinction between malice in law and malice in fact . . . S8&
Evidence of malice . • . 340
(1) Declarations of ill-ivill — Evidence of malice . • • .241
(2) Defendants may testify as to their intent 243
(8) Good faith and honest belief are mental conditions . . . 243'
(4) Motive of the prosecutor — A desire to make an example for the
purpose of deterring others 34n-
(.^j Witnesses' opinion that the prosecutor appeared vindictive, etc. S4I
(6) A multiplicity of suits 341
Undue publicity of arrest — Evidence of malice — Application of tbe
rule 24->
Mdlice and tbe want of probable cause must concur, etc— Dlgeat of
English authorities . 246
Malice may be inferred from the want of probable causa . . . S47'
Tile existence of malice a question for the jury ..... 247
for the jury ■" The general rule ..... 248
for malicious prosecutions , , 24*
fur false imprisonment ....... S4ft'
TOPICAL ANALYSIS. XV
CHAPTER VIL
OF PROBABLE QAtTSB.
Beasonable or probable cause defined 252
"The point of inquiry — The law stated by Shaw, G J. . • .252
(1) What is reasonable or probable cause ..•'•• 258
(a) Conviction before a magistrate — Acquittal on appeal — Ad-
vice of counsel 253
(b) Facts constituting probable cause • 255
(c) Suing out an attachment 257
(d) Circumstances showing probable cause • • • • . • 257
(e) Want of probable cause appearing from circumstances • 258
(2) What is not reasonable or probable cause 258
(a) Circumstances showing no reasonable or probable cause • 258
(b) Abuse of process 260
(e) Maliciously swearing out a peace warrant, etc. • • • 262
(d) Facts not amounting to probable cause • • • • 262
(e) Want of probable cause and-abuse of process • • • 263
Malice and want of probable cause must concur . • • . 265
(1) Concurrence of malice and want of probable cause • • • ^5
(2) Sufficiency of facts to justify an arrest . • . . • 265
Reasonable cause an element of the plaintiff's case — Honest and rea-
sonable belief 267
The right to judge from appearances as to the existence of probable
cause 268
(1) A person may judge from appearances, etc. • • • • 268
(2) A man's conduct may justify a suspicion . • ; • . 269
Good faith on the part of the prosecutor • 269
(1) Municipal officers prosecuting saloon-keepers under a void char-
ter 270
(2) Arrest for theft — Settlement and discharge • • • • 271
(3) A want of probable cause 272
(4) Suing out and levying a distress warrant 273
Character of the plaintiff an element in the questfon of probable cause 273
Character of the«accused an element of probable cause • . . 274
Gross negligence — Error — Mistake, etc. — As affecting probable cause 274
A belief induced by error and negligence • • • • . 275
Ignorance of the law excuses no person 275
Character of the accused where the charge is made upon information
and belief 276
Probable cause, a mixed question of law and fact • • • • 270
Province of the court and jury 278
(1) The action for malicious prosecution 279
(2) Where the facts are undisputed the question of probable cause
is for the court 280
Province of the court and jury — Malice and probable cause • • 281
Evidence of want of probable cause 282
Proof of want of probable cause, etc. 288
Evidence of probable cause • • 284
ZTl
TOPICAL ANALYSIS.
L Conclusive evidence.
(1) A conviction before a justice for the identical charge • • 28f
(2) Verdict of guilty founded upon correct instructionB • • 285
(8) A verdict for a set-off in a civil suit 28ft
(4) A verdict of guilty in a criminal prosecution • • • 286
(5) Conviction before a justice reversed on appeal • • • 287
(6) Conviction before a justice in a criminal case • • . 287
(7) A collateral judgment • . 287
n. Prima facie evidence »••••••• 281^
(1) Disagreement of a jury 290
(2) Conviction before a magistrate reversed on appeal • . 291
(8) A reversed decree in a civil suit 293
(4) Signs, etc., displayed — Inference, etc. . • . . 298-
Acquittal of the accused not evidence of a want of probable cause —
The contrary rule . . • • 298>
(1) Evidence in general • • • • 294
(2) Sufficient evidence 295
(8) Prima facie evidence 295
Judgments and decrees of trial courts — How for conclusive evidence
of probable cause — Review of the authorities and discussion of the
subject 29G
The correct rule 299
(1) Judgments of trial courts — How far conclusive evidence of prob-
able cause 800
(2) Judgment obtained by ex parte proceedings not conclnsiye • 902
Testimony on a preliminary examination competent on the question of
probable cause 808
Character — Its effect on the question of probable cause . • « 804
Plain tiff*s bad character competent to rebut want of probable cause . 804
Probable cause — Admission of its existence 805
(1) Settlement of a suit by paying the demand • . . , 805
(2) Payment of demand estops the plaintiff from saying there was
want of probable cause 805
(8) Waiving examination before magistrate not an aidmission of
probable cause, etc. 806
The question of probable cause in actions for false imprisonment • 807
Probable cause and absence of malice no bar to an action for false
imprisonment • • • • 807
CHAPTER Vni.
OF ADVICB OF COUNSEL.
I. In McUiciouB Prosecution.
The authorities not uniform ....
The general rule
(1) Advice of the commonwealth attorney •
(2) Advice of different attorneys
(3) Advice of counsel as a defense .
809
810
811
812
818
TOPICAL ANALYSIS. XVll
Advice of an attorney interested in the suit • • • • ,814
Character of the oonnsel ..••••••• 814
Advice of a justice not sufficient 815
(1) Advice of magistrate not sufficient 816
Honest prosecutor protected — Matter of public policy • • • 817
Prosecutor relying upon statements of persons, eta • • .818
Duty of party seeking advice of counsel 818
(1) Did not lay all the facts before the counsel • • • • 82P
(2) Did not state all the material facts to the advising ooonsel • 821
(8) Advice of staters attorney • 822
Advice of officers — Policemen, detectives, -etc. • • • • • 823
Effect of the advice of persons not attorneys 823
Advice of a person not a lawyer 824
Good faith, independent of legal advice •••••• 825
II. In False Imprisonment,
The advice of counsel in actions for false imprisonment • • • 825
Advice of an inexperienced attorney sufficient • • • • 825
CHAPTER IX.
OF THE END OF THB PBOSECUnOH.
The end of the prosecution • • • 827
For prosecuting criminal actiona 828
For prosecuting civil actions • . 828
(1) The action prematurely brought 82^
(2) The suit prematurely commenced 829
(8) What is not end of the prosecution •••••• 829
The means by which the end of the prosecution is accomplished • 882
By a noUe prosequi 882
Effectof the entry of ano2Zejpro«egui .••••• 882
When it is a sufficient termination of the proceedings • • • 883
(1) A nolle prosequi an end of the proceedings • • • • 888
(2) The same not an end of the proceedings • • • • • 885
(8) When a noUe prosequi is not ••••••• 886
(4) When it is, etc 387
(5) Entered without the advice or consent of the defendant • • 837
(6) Discharge of magistrate upon entering, etc. • • • •841
(7) Judgment that the defendant go hence thereof acquit • •841
Sammary of the law 842
A better rule • 843
Dismissal of the prosecution • • • 843
(1) Dismissal of a criminal prosecution •••••• 84&
(2) A dismissal not an end of the prosecution • • • • 844
(8) Abandonment of a civil suit 844
(4) Same plaintiff failing to appear 845
By vacation of order of arrest, etc 846
Vacation of order for arrest in a civil suit • • • • • 846
XVlll
TOPICAL ANALYSIS.
• i
-• •
By discharge on orders of court •
A person recognized must be discharged by order of court
Discharge of magistrate sufficient, when • • • •
(1) Discharge by justice sufficient, though he does not haye
jurisdiction
(2) Acquittal before magistrate having no jurisdiction
(8) Prosecution abandoned by complainant • •
(4) Discharge on preliminary examination sufficient
(5) Discharge on prosecutor failing to appear •
By a discharge on Jiabeas corpus . • •
(1) When the discharge is not an end • •
(2) When it is a sufficient end, etc. • • %
Miscellaneous matters of discharge . • •
(1) VoluDtary escape from an officer is not •
(2) Obtaining leave not to ffie an information •
(8) Indictment quashed and defendant released
Finding an indictment for a different offense
Indictment for an offense different from the one charged in
original complaint
Cionclusiona — End of the prosecution in false imprisonment
The same in actions for malicious prosecution • . •
Distinctions between actions for malicious prosecution and false
prisonment
End of the prosecution • • • • •
• 849
fan
the
im-
CHAPTER X
OF PABTOES.
Parties •••'
Plaintiffs — Who may sue •••••••
Joinder of plaintiffs ..••••••
Defendants — Who may be sued • • • • •
In actions for malicious prosecution and false imprisonment
Joinder of defendants •••••••
Death of plaintiff ••••••••
Death of defendant ••••••••
The right of survivorship •••••••
Joiut and several liability •••••••
A tort the several act of all concerned • • • •
A joint action for a joint injury
(1) Joint liability a question for the jury upon the evidence
(2) The same — Instructions — Province of the jury •
<8) Joint criminal liability — What acts are not sufficient
<4) Illegal arrests on suspicion of being pickpockets • ^
(5) Void warrant — Joint liability under, etc. • «
(6) Ck)mplainant not liable for the acts of the justice • .
No contribution between wrong-doers • • • • '
Attorneys and clients •••••••
Corporations — The general rule • • • • •
Corporations liable for malicious prosecutions • • •
849
850
851
851
852
852
853
858
858
855
856
857
858
858
859
859
860
860
861
866
866
866
867
868
868
869
869
870
870
871
871
871
872
874
874
878
879
880
880
881
881
TOPICAL ANALYSIS. ZIX
In the days of Ooke and Sir WUliam Blackstone • ' • • • 883
An obsolete doctrine • • • 882
(1) A savings bank liable for malicious prosecntion • > • • 883
(S) Corporate lialnlit j for acts of employees, etc • • • • 884
(8) Railroad company liable for false imprisonment • • • 885
Hanicipal eorporations • • • 887
The proeecntion of criminal offenders not ultra vires • • • 888
Husband and wife— The rule at common law • • • » • • 888
Under Btatates • • • • 890
Infants — (1) As plaintiffs 891
Infants — (8) As defendants 891
Liability of infants in actions for malicious prosecution • • .891
Master and servant 892
liiability of partners — What concurrence will render both liable • 898
Personal representatives ••• 893
Prinoipal and agent *•••• 894
Misnomer — The use of wrong names ••*•• • • 894
CHAPTEB XL
OF FLBADINGk
Pleading in action for malicious prosecution and false imprisonment 896
Pleading under codes • • • • 896
Complaint in an action for malicious prosecution • • • • 897
Modification of the common-law system •••••• 898
Statement of the claim defined • 899
The declaration at common law — Its form and particular parts • 899
Complaint for the abuse of legal process •••••• 404
Special damages 410
(1) Special damages must be specially pleaded — Loss of boarders • 411
(2) Bad condition of prison and food 411
(8) Insufficient statement . . • • • • • .412
Allegation of special damages — Pteoedent • • • • • 414
Defendant's pleas, answers, etc. . • • • • • ,415
Plaintiff's pleadings in actions for false imprisonment • • • 415
Reasons for the rule •••••••••• 417
Pleas of justification, eta • . • • • • • • •417
Opening and close under pleas of justification • • • • ,418
Former recovery — Estoppel 418
Joint defendants — Pleading separably — A question of policy • .418
Joint and several pleas 418
Precedent^ of pleas — False imprisonment • • • • • • 419
(1) The general denial • • • • 419
(2) Statute of limitations 419
Pleas of justification 419
(1) Under final process ••••••••• 419
(2) On suspicion of felony •••••••• 420
(19 Under mesne process • • •• • • • • • 421
ZZ TOPICAL AITALYSUU
Other pleas and answers • • • • ^^^ • • ' • .428
{!) MoUiter manua — To preserve the peace • • • • • 423
(2) The same — Assault on a third person ^ • • • • .423
(8) Correction of an apprentice •••••• .433
(4) Satisfaction . . . . • • • •»• .424
(5) The same by joint trespasser •••••••424
(6) Former judgment recovered •••••• • 424
(7) Release Z . .425
(8) Tender of amends • •!(• .425
The plaintiff's course after the defendant has answered • • •426
Precedents of replications •••••••••427
Concluding remarks •• • • • • •!.•&• •428
CHAPTEB Xn.
OF DEFENSES*
Defenses m^ • •480
The general issue • • 480
What can be shown under the plea of the general issue • • •480
Joint trespassers may sever in their pleas •••••• 431
Justification ««,481
(1) Justification under an erroneous judgment • • • . 482
(2) Illegal order of a superior officer, no justification • • . 483
(8) Officer justifying puts in issue the title to his office • • .433
(4) Justification for an arrest •••434
Arrest without process— Justification •••••• 484
Duty of an officer •••435
Waiver— The defense of •••435
Waiver of the right to sue ••••••••• 485
(1) Waiver of imprisonment • • • • • •"*• .436
(2) What does not amount to a waiver of an arrest • • .436
(8) Liability of magistrate, etc. — Objections waived • • • 487
Release — The defense of • • 488
A release of the right to sue ••••••••438
(1) What is a sufficient release • • 488
(2) Officer neglecting to remove goods attached, looked in a room
with them, cannot complain 439
The defense of estoppel 489
A satisfaction is an estoppel 439
(1) Satisfaction from one estops the injured person from suing
others .440
(2) Estoppel by false representations •••••• 443
What is satisfaction • • • • 444
The rule which prevails in a majority of the states • • • .446
Payment — Settlement — Discharge and satisfaction by one of several
joint trespassers • • • • 446
The rule in the time of Lord Coke • • ••• • • ^447
A release of one is a release of all^ •••••• 447
TOPIOAL ANALYSIS. ZXl
CHAPTER Xm.
OF EVIDEKCBs
Malicious proeecation — Barden of proof •••••• 450
L The prosecution of the plaintiff ' • • 451
Identification of the defendant as the prosecutor • • • • 451
The end of the prosecution •••••••• 453
(1) In civil cases ••••••••• 453
(2) In criminal oases •••••••••• 458
® In actions for the abuse of process • • • • • 458
(4) In actions for false imprisonment •••••• 454
The record conclusive evidence of acquittal or oonvictidn • • 454
Contents of lost records may be shown by parol evidence • • 454
(1) Loss of the complaint before the magistrate • . • • 465
(2) Evidence of matters not appearing in the record not admis-
sible 455
IL Malice and want of probable cause •••••• 456
Maliciously instituting the prosecution • • • • • 456
(1) Malice and want of probable cause not inferred from the
discharge of the accused 457
(3) Malicious suing out a warrant, evidence of probable cause . 458
(3) Evidence of matters arising after the prosecution of the
alleged malicious suit 460
(4) Evidence on the question of probable cause and malice • 460
Without reasonable or proper cause 460
(1) Pleadings in former suits between the parties — Letters and
account books .••.••••• 463
(2) Entries of the public prosecutor may be explained • • 464
(8) Want of probable cause not established . • • • 464
Evidence of character — Plaintiff may show it affirmatively — > Fartio-
ular instances of bad conduct, improper 465
(1) Character of informant in criminal cases — Its bearing on the
question of probable cause 467
(2) Bad character of plaintiff's mother not competent • • • 460
Advice of counsel . • 470
Advice of counsel — Its sufficiency as a defense a question for the
jury 471
Malice 478
HaUoe and the want of probable cause must concur • • • • 473
Actions against magistrates 474
Testimony before the magistrate on the preliminary examination^
competent . . * • • • 474
Magistrates are bound by the records they keep • • • • 474
(1) Matters outside of the record inadmissible, eto^ • • • • 475
(2) The papers should be produced ..••••• 475
Actions for malicious arrests • • • 476
Want of probable cause in actions for malicious arrest • • • 477
Proof of damages •••••••••• 477
Evidence on the part of the defendant ••«••• 478
• •
•
Under the plea of not gnilty ••••••••478
Matters not relevant to the issue .-••••• 479
Matters having no relevancy to the issue • • • • • 479
Credibility of witnesses and weight of testimony • • • • 479
Credibility of witnesses — The province of the jury • • • 480
In actions for false imprison meat 480
Burden of proof, when upon the plaintiff to show the imprisomnent
The plaintiff must show the imprisonment false^ when • • ,481
Irregularities and informalities of proceedings • • • • •482
"Want of probable cause • • • • 488
Malice in actions tar false imprisonment 483
General damages 483
Compensatory damages, elements of • • 484
Special damages • • • • . 485
The defendant's evidence ...•••••• 485
What may be shown under the plea of not guilty • • • • 486
[ (1) In bar of the action • • • 486
(2) In mitigation of damages ..•••••• 486
«
CHAPTER XIV.
OF DAMAGES.
•
Damages-— The term defined ..•••••• 491
The right of recovery • . 491
Damages in actions for malicious prosecution • • • • . 499
In actions for false imprisonment • . 493
I, Elements of Damages,
Elements of damages in false imprisonment • • • • . 493
Absence of malice • . 498
Elements of damages in actions for malicious prosecution • • . 494
Elements of damages — Examples, etc. ...••. 494
(1) Evidence of treatment in prison — When not competent • • 496
(2) Merchant's loss of credit, etc., an element of exemplary dam-
ages 497
(8) Pecuniary circumstances of the parties may be shown by the
plaintiff, when 498
(4) Attorney's fees an element of damages • • • • . 499
(5) Attorney's fees • 499
(6) Traveling expenses to and from court -* Attending trial — Losa
of time 600
(7) Insanity and mental aberration, when an element of damages • 500
(8) Mental anxiety, trouble and distress .••••• 501
(9) Character of the plaintiff • ^ 502
77. Asseeement of Damages.
Assessment of damages — The term defined . • • • • 602
(1) Upon the trial of the is6ue • . • • 603
(2) Upon default or demurrer .•••.,,, 603
• • •
TOFICUL ASAJUmiB. ZXIU
What the defendant may show upon default or demttirer • • (BOS
Aweflsmentof damages ^Discretion of the jury . • • . 504
An inquest set aside for allowing evidenoe in justification, stc,
after default 505
The rule in actions for false imprisonment 606
Damages must be assessed jointly 506
III, Mitigation of Damages,
Mitigation of damages 606
Circumstances may alter the case 507
(1) What matters attending the arrest may be shown in mitigation
of damages 507
(2) Motives in making an affidavit for the arrest • • • • 509
(8) Persuaded by another to make an affidavit, eta • . • 509
(4) Persons making an arrest under a void warrant . • • 510
Facts tending to show probable cause in mitigation of damages • 510
Plaintiff's general bad reputation in mitigation of damages • •511
(1) Plaintiffs general bad reputation proper to mitigate damages . 511
(2) Plaintiff's character in regard to particular traits inadmissible
unless involved in the charge against him • • • . 51^
Plaintiff's bad character competent in mitigation • • • . 518
What kind of damages subject to mitigation . • • • • 513
Compensatory damages not subject to mitigation • • • • 513
What kind of damages are subject to mitigation — Ciroumstancee • 514
JV, Aggravation of Damages^
Aggravation of damages • • •515
What may be shown in aggravation of damages • • • • 516
F. Nomined Damages.
Kominal damages— The term detoed 616
DiflcoiiioD of the subject • • • • 516
(1) Imprisonment under two commitments — One valid, the other
void 617
(5) niegal arrest made through misleading statements of the person
arrested . • . • 617
(B) I^ominal damages — When proper 618
VI. Compensatory Damages.
^^P«Mitoiy damigei 519
VJJ, tSxempiary Damages.
^mplary damages • • • 620
Tlie general rule 528
Exemplary damages — A question for the jury . . • • • 688
Noexemplarydaraages where no actual damages exist • • • 628
GorporatioBS liaUe in exemplary damages 024
ZZIV TOPICAL ANALYSIS.
The right to exemplary damages does DOt depend upon the existence
of malice in its ordinary sense 624
(1) Two thousand seven hundred and fifty dollars, not exceasiye • 525
(S) One thousand dollars sustained 628
(8) Pecuniary condition of the defendant, etc. • • • • 537
VIII, Excessive Damages,
Excessive damages • .629
Hotion for new trials — For excessive damages • • • • « 629
JL In cases where the damages have been held to be excesdve • 580
(1) $1,000— On a technical arrest 530
(2) $1,055.66 — Prosecution for malicious mischief • • •581
(8) $6,000— Illegal arrest 538
(4) $9,000— Arrest on a charge of treason • • • • 583
(6) $20,000 — Illegal arrest on a charge of stealing coal • • 534
B. Cases where the damages have been held not to be excessive • 534
(1) $125 — For false imprisonment 534
(2) $750 — Wrongfully causing an attachment to be levied on
exempt goods 535
(8) $825 — Justice perverted for purpose of private oppression • 535
(4) $900— Larceny of a saw handle— value $0.25 . . .536
(5) $1,000 — Arrest without reasonable grounds of suspicion • 537
(6) $1,000 — Maliciously procuring an indictment • • .588
(7) $1,000 — Abuse of process 539
(8) $800— Arrest upon charge of conspiracy • • • .539
(9) $1,200 — Arrest upon a charge of burglary • • • • 539
(10) $1,272 — Malicious arrest and imprisonment for larceny • 540
(11) $1,500 — Malicious prosecution ...••• 539
(12) $1,700 — An aggravated false imprisonment • • .540
(18) $2,000 — Maliciously suing out a writ of attachment • .540
(14) $8,000 — Illegal arrest for refusing to give up a child • .541
(16) $4,000 — Illegal arrest for forcibly entering a house • .541
(16) $5,000— On charge of burning warehouses • • • •542
(17) $8,000 — Prosecution of witness against the company in dam*
age suits for perjury • • 543
(18) $10,000 — Illegal arrest for embezzlement • • • • 544
Kew trials for excessive damages • • 545
JX Consequential Danuiges.
Consequential damages "* • .545
The rule in actions for malicious prosecution and false imprisonment 546
(1) Attorney's fees not consequential ••••.• 546
(2) Imprisonment of pregnant woman — Effect on offspring, too re-
mote 546
(8) Disposition of assets after dissolution of attachment too remote 547
X Measure of Damages,
Measure of damages • • 548
(1) Voluntary submission to imprisonment under a void writ • 550
(2) Measure of liability — Prosecutors acting in good faith • •551
TOFIOAL ANALTSI8. XXY
CHAFTEB ZV.
OF THE JmtT. . .. _
The Terdict defined ••••• 668
Verdicts of three kinds • • 668
A general Terdict •••••••••• 668
A special Terdict •••••••••• 668
Rules of lawaBtOBpeeisI-TerdictB • 668
Special findings •••••• 664
Material questions of fact defined ••••••• 666
Special Terdict inconsiBtent with general Terdict • • • • 666
Degree of inconsistency required ••••••• 669
A question of practice 669
Special findings in actions for malicious prosecution and false impris-
onment •••• 660
Forms of submission for special findings • 661
Forms of special findings •• • • 668
(1) Special findings control the general Terdict • • • • 664
CHAPTER XVL
OF GHABGINO THE JTOT.
Preliminary discussion — Instructions and requeets for InstruotlonB • 667
The instmctionB should be clear, accurate and concise • • • 668
MtUicious ProseciiUion,
An oral obarge to the jury 668
Written instructions 677
Maliee,
Malice defined ••688
Malice may be inferred from want of probable cause • • • 688
Defendant's instruction — Under a general denial ~ Burden of proof 688
Doing an unlawful act to obtain a lawful end • • • • • 684
Probable Cause.
The want of it must appear firom the CTidence • • • • • 686
What is want of probable cause • • • • • • • • 686
The burden of proof • • « • • 686
An honest belief in plaintifTs guilt • • • . • • • 686
Prosecutor acting in good faith • • • 586
The true inquiry •••••••••• 686
Reasonable grounds of suspicion 686
Good character on the question of probable cause • • • • 686
Malice and want of probable cause must concur • • • • 687
fixistence of facts a question for the jury 687
Facts constituting probable cause 688
Pacts not constituting probable cause 689
Seasonable inquiry as to facts ...••... 590
Allowance to be made for injury to prosecutor • • • • • 590
XXTl TOFIOAL ANALYSIS.
Possetsion of stolen property 691
Aooeeeory to anon .693
FsotB to be oonsidered • *• . • 69^
Advice of Counsel -i i^
ne doctrine annoonoed by the supreme court of Iowa • • • 694
The doctrine laid down by Hilliard and Wait • • • • • 694
Advice by coansel mistaken in the law « 694
False Imprieonment
False impriflonment defined •••••••• 69*V
What is an arrest • . • 695
Dureas and threats • 696
What information the defendant must act upon • • • • 696
Estoppel of plaintiff — False representations 697
Persons assisting officers 597
Permitting a convicted party to go at large — Arresting him after-
wards 698
Void warrants in mitigation of damages •••••• 698
Arbitrary arrests — Joint liability 69^
Duty of officers making arrests ..•••••• 600
Trespassers are jointly and severally liable 601
When not liable as joint trespassers ••••••• 601
Who are liable as joint trespassers • 603
Form of verdict when part of defendants guii^ • • • • 603
Liability of infants — Ratification 60d
Damages, ^
Damages 602
Compensatory when exemplary damages -are not claimed • • • 608
Exemplary damages defined • 608
Exemplary damages in false imprisonment • • • • • 608
The same in malicious prosecntion ••••••• 604
The defendant's wealth may be considered • • • • • 604
Good faith in mitigation of damages 605
•
TABLE OF ABBREVIATIONS
TOED m THIS WORK
FAin OF WDBK, Bia
JL&K Adolphus A; Ellis* Reports, Kins's Bench.
Aberc. on IntelL Pow, Abercrombie on the rntellectual Powers.
Adam*8 Ant Adam's Roman Antiquities.
Addis. Addison's Reports, Pennsylvania, 1791-1799.
Add. Addams' Eoclesiastical Reports.
Aik Aiken's Reports, Vermont, 1 836, 1827.
A K. Marsh A. K. Marshall's Rep., Kentucky, 1817-1821.
Ala. Alabama Reports.
Ale & Nap. Alcock & Napier's Reports, Kings's Bench, Ireland.
Alcia. de Praae. Alciatus de Prsasumptione. Alciati Opera, Basi-
leaa. 1852.
Alison, Cr. Li Alison's Principles of the Criminal Law of Scot-
land.
Alison, Pract of Cr. L. Alison's Practice of the Criminal Law of Scotland.
Am. Ed American Eiiition.
Am. & Eng. Encj. L.. American and English Cyclopedia of Law.
Am. Jar. American Jurist.
And Anderson's Reports. Common Pleas.
Aadr. Andrew's Reports, Kind's Bench.
Aostr. Anstruther's Reports, Elxchequer.
Anthon, N. P. Anthon's Nisi Prius Rep., New York, 1808-1818L
Applet Appleton's Reports, Maine, 1841.
Arch. Cr. PL Arch hold's Criminal Pleading.
Alt Arizona Reports.
Ark. Arkansas Reports.
Ann. , K. ft O. Armstrong, Macartney Sc Ogle^ Rep., Nisi PrL IreL
Arm. &T. Armstrong & Trevors Repi of R. y. O'Connell,
Dub.. 1844.
AtL Rep. Atlantic Reporter.
Att. Oen Attomey-GkneraL
Ayliffe Par. Ay liffe's Paragon, 2d edition, 1784.
B. ft A Bamewall ft Alderson's Reports, King's Bench.
E ft Ad Berne wail ft Adolphus' Reports, King's Bench.
B. ft B Broderip ft Bingham's Reports, Common Pleas.
EftC. Bamewall ft Cress well's Reports, Eang's Bench.
Eft P. .... • Boeanquet ft Fuller's Reports, Common Pleas.
Eft& Best ft Smith's Queen's Bench Reports.
Baa Ab. Bacon's Abridgment.
BaiL Bailey's Reports. South Carolina, 1898-1882.
Bail. Ct Cas. Lowndes ft Maxwell's Bail Court Cases, 1852.
Barnes Barnes' Notes of Practice Cases in Common Pleai»
Batty Batty'n Reports. King's Bench, Ireland.
Bay Ba> 's Reports, South Carolina, 1788-1804.
Beav Ben van's Reports, Rolls Conrt.
Bell, C. a Bell's Crown Cases Reserved, 1859.
Bell Dig. Bell's Dig««t of the Laws of Scotland.
Bibb. Bibb's Reports, Kentucky, 1808-1817.
ZXVni TABLE OF ABBBEYIATIONS.
IBBBZTLLTIQRB. NAMX OF WOBK, STO.
Bing. Bingham's Reports, Common Pleas.
Bing. N. S. Bingham's Reports, New Series, Common Pleas.
Binn Binney's Reports, Pennsylvania, 1799-1814.
Bl. ConL Blackstone's Commentaries.
H. Bl Henry Blackstone's Reports, Common Pleas.
W. Bl Sir William Blackstone's Reports (K. B. &aP.>
Bland, Ch Bland's Chancery Rep. . Maryland, 181 1-1830.
Blackr Blackford's Reports, Indiana, 1817-1838. 4 Tola.
Bligh Bligh's Reports, House of Lords.
Bligh, N. a Bli«:h'8 Reports, New Series, House of Lords.
B. N. P. Buller's Law of Nisi Prias.
Bouv. L D. Bouvier's Law Dictionary.
Bouv. Inst Bouvier's Institutes.
Bott Bolt's Poor Laws.
Br. P. C. Brown's Parliamentary Cases.
Bridg Sir O. Bridgman's Judgments in Common Pleas.
Bro. Ab. Brooke's Abridgment
Broom, Max. Broom's Legal Mazim&
Browne Browne's I^eport8. Pennsylvania, 1806-1814.
Brown! Brownlow's Reports, Common Pleas.
Bnlst. Bulstrode's Reports, King's Bench.
Bunb Bunbury's Reports, Exchequer.
Burge, Com. on Col. A } Burge's Commentaries on Colonial and Foreign
For. L. ) Law. London, 1838.
Bam, Ec. L. Burn's Ecclesiastical Law.
Burn, Just. Burn's Justice of the Peace, by Chitty. 29th ed.
1845.
Burnet, Cr. L. Burnet on Criminal Law of Scotland.
Burr Burrow's Reports, King's Bench.
Burr. S. C Burrow's Settlement Cases, King*s Bench.
Bynk. Obe* Jur. Rom. Bynkf>rshoek, Libri Observationum Juris RomanL
C. & J Crompton & Jervis' Reports, Exchequer.
C. & Kir. Carrington & Kirwan's Nisi Prius Reports.
C» & M Crompton & Meeson's Reports, Exchequer.
C, M. & R. Crompton, Meeson & Rosooe's Rep., Exchequer.
C. & Marsh Carrington & Marsh man's Nisi Prius Reports.
C. & P. '•.... Carrington & Payne's Nisi Prius Reports.
Cab. &E\ Cababe & Ellis' Nisi Prius Reports, 1883, 1884.
Caines' Rep Caines' Reports. New York, 1808- 1805.
CaL Cas. Caines Cases. New York.
Cal California Reports.
Oalv. Lex Calvini Lexicon Juridicum Juris CsdsariL (len.,
1645.
Camp Campbell's Nisi Prius Reports.
Cane. Leb. barb. ant. . Canciani, Leges barbarorum antiquse. Yenetiis,
1781-1785.
Carpz. Pract. Ber. Cr. Carpzovii. PracticsB Rerum Criminalium. Fran-
cof. ad MsBnum, 1758.
Car. Cr. L. Carrington's Supplement of Treatises on Criminal
Law.
Carth Carthew's Reports, King's Bench.
Cas. temp. Hard Cases in the time of Lord Hardwicke.
Cas. temp. Lee Ecclesiastical Reports in the time of Sir G. Lee.
Channing Channing's Works.
Chit. Cr. L Chitty's Criminal Law.
Chit. Forms Chitty's Forms of Practical Proceedings in Com-
mon Law Courts.
Chit. Pract Chitty's Practice.
Chit, on PI Chitty on Pleading.
Chit R. Chitty's Reports, King's Bench.
Cia FanL Ep. Cicerbnis Familiares Epistolse.
City Hall Eect New York Recorder, containing Reports of Cases
in City Courts from 1816 to 1821.
TABLE OF ABBREVIATIONS. ZXIX
JJBBBXVXATX0B8. NAME OF WOBK, BTO.
(X & Fin Clark & Finnelly's Reports. House'of Lords.
Go Lord Ck)ke*8 Reports. London, 1826.
Co. lit ... Coke on Littleton.
Cod. Lib Codex Theodosianos, Jacobi Gk>thofredi.
Code do Proa Civ. • . . Code Napoleon de Procedure Civila
Col Colorado Reports.
Com Commonwealth.
Com. B. . « Manning. Grander & Scott*8 Common Bench Rep.
Com. B.« N. S New Series of Common Bench Rep. John Scott.
Com. Dig :. Comyn*s Dijrest.
Oom. J Journals of the House of Commons.
C3om. Bep Corny n's Reports.
Comb Comberbach's Reports, King's Bench.
Conklin's Pr Conklin's Practice of Courts of United States, New
York, 1842.
Conn Connecticut Reports, by T. Day, 1814-1848.
Cons. R Haggard's Consistory Reports.
Const. R Constitutional Rep., S. Carolina. 1812-1816.
Const. & Can Constitutions and Canons, EcclesiasticaL
Const. U. S Constitution of the United States.
Cooke & Alo Cooke & Alcock*s Rep., King's Bench, Ireland.
Cooke Cooke's Reports, Tennessee, 1811-1814.
Comer, O. Pr Corner's Crown Practice in Queen's Bench, Lodp
don, 1844.
Co well's Ind. App. . . . Co well's Indian Appeals.
Cow Cowen's Reports, New York, 182&-1828.
Cowp Cowper's Reports, King's Bench.
Cox Cox's Criminal Law Cases.
Coxe Coxe's Reports. New Jersey, 1790-1795.
Cranch Cranch's Rep., Sup. Ct. of U. S., 1800-1815.
Crawf. & D., Abr. C. . Crawford & Dix's Abridged Cases in Ireland.
Crawf. & D., C. C. . . . Crawford & Dix, Irish Circuit Reports.
Cro. Car Croke's Reports in the Reign of King Charles L
Cro. Elix Croke's Reports in the Reign of Queen Elizabeth.
Cro. Jac. Croke's Reports in the Reign of King James.
Cujac. Op. Poeth Cujaccii Opera Posthuma.
Cosh Cushing's Rep. Supreme Court of Massachusettfl.
D. ft M. Davison & Merivale's Reports, Queen's Bench.
D. ft R Dowling & Ryland's Reports, King's Bench.
D. ft R. Mag. Ca Dowling ft Ryland's Magistrates' Cases.
D. ft R. N. ^. C Dowling ft Ryland's Nisi Prius Cases.
IHdiscm. Benloe ft Dalison's Reports, Com. PL
DaU Dallas' Reports. Supreme Courts of United States
and Pennsylvania, 1790-1806.
Dalt Dalton'a Country Justice, Ed.'1697.
Dane, Abr Dane's Abridgment, United States.
Danty Trait6de la Preuve. Paris, 1697.
Day Day's Reports, Connecticut, 1802-1810.
Dea. ft 0 Deacon ft Chitty's Reports.
Deane, Verm. R Deane's Reports. Supreme Court of Vermont.
Dear, ft Bell Dearsley ft Bell's Crown Cases Reserved.
Del Delaware Reports.
Den Denison's Crown Cases Reserved.
Den Denio's N. Y. Reports.
Dev Devereux's Rep., North Carolina, 1826-1884.
Dev. ft B Devereux ft Battle s Rep., North Carolina, 1834*
1840.
Dickson, Et Dickson on Evidence in Scotland.
Dig. Lib. Digest of Civil Law.
D. C District Columbia.
l>oct. ft Stu Doctor and Student.
Dom. Proc. H. of L. . • House of Lords.
Doug Douglas' Reports, King's Bendh.
ZZX TABLS OF ABBEEVIATIONa.
ABnSTIATIOHl. ITAME OF WOB±, WIO,
Dow Dow's Reports. House of Lords.
Dowl Do wIiDf2:'8 Practice Cases, Old. Ser. Com. l<aw Cts.
DowL N. 8 Dowling^s Practice Canes. New Series.
Dowl. &L. Dowling A Lowndes' Practice Cases.
Drew. & Sm Drewrv & Smale's Rep.
Dyer Dyer's Reports, Kinp:'s Bench.
E. & B Ellis & Blackburn's Queen's Bench Reports.
E., B. ^ E Ellis, Blackburn & Ellis' Queen's Bench Rep.
B. &E Ellis & Ellis' Queen's Bench Reports.
East East's Reports, King's Bench.
East, P. C East's Pleas of the Crown.
Edinb. Rev Ed in burg Review.
Ersk. Inst Erskine's Insttitutes of the Law of Scotland.
Eap Espinasse's Nisi Prius Reports.
Everh. Cone. Everhardi Concilia. Antwerp, 1648.
Ex. R. ^ Exoh. Rep. . Welsby , Hurlstone & Gordon.
Fairf Fairfield's Reix)rts. Maine, 1883-18)5.
Farin, Op Farinacii Opera. Francof. ad Madnum, 1684.
Ff Pandecta Juris Ci vilis.
Fitzg Fitzgibbon's Reports.
Fla., Flor Florida Reports.
Forrest Forrest's Reports, Exchequer.
Fost. C. L Sir M. Foster^s Crown Law, 8d ed. , 1793.
Fost. & Fin Foster & Finlason's Nisi Prius Reports.
Fox & Sm Fox & Smith's Reports, King's Bench, Ireland.
Freem Freeman's Reports.
G. & D Gale & Davidson's Reports, Queen's Bench.
Gale Gale's Reports, Exchequer.
GalL Gallison's Reports, United States. 1st Circuit
Court, 1812-1815. Judge Story's Decisions.
Ga • Georgia Reports.
Gilb. Ev Gilbert on Evidence, by Lofft.
Gill A J Gill & Johnson's Rep., Maryland, 1829-1840.
Glassf . £ V Glassf ord on Evidence. Edinburg, 1820.
Godb Godbolt's Reports.
Gow Gow's Nisi Prius Reports.
Greenl. Ev Greenleaf on Evidence.
Gratt. Grattan's Reports. Virginia.
Gray Gray's Reports, Supreme Court of Massachusetts.
Greene Greeners Iowa Reports.
Greenl Greenleafs Reports, Maine, 1820-1882.
H. Bl Henry Blackstone's Reports, Common Pleas.
H. & C« . . • Hurlstone & Coltman's Reports, Exchequer.
H. of L. Cas. House of Lords Cases, Clark.
H. & N Hurlstone & Norman's Reports, Exchequer.
H. & R. Harrison & Rutherford's Kep., Common Pleas.
Hale, P. C. Hale's Pleas of the Crown.
Hale de Jur. Mar. .... Lord Hale*8 Tivatisp de Jure Maris.
Halst Halstead's Reports, New Jersey, 1821-1881.
Har. &iQ Harris & Gill's Rep. , Maryland, 1826-1829.
Har. & M'Hen Harris & M'Henry's Rep., Maryland, 1790-1799.
Har. & W Harrison & WoUaston's Reports, King's Bench.
Hardin Hardin's Reports, Kentucky, 1805-1808.
Hardr Hardres' Reports. Exchequer.
Harg. L. T Hargra ve's Law Tracts.
Harg. St. Tr Hargrave's State Trials.
Harr. & J Harris & Johnson's Reports, Maryland, 1800-1826.
Hawk Hawkin's Pleas of the Crown.
Hawkp Hawk*' Rt>port8. North Carolina, 1820-1826.
Hayes Hayes' ReiH)rts, Exchequer, Ireland.
Hayes & Jon Hayes & Jones' Reports, Exchequer, Ireland.
Hay w Haywood's Rewrtn, North Carolina, 1789-1806.
Hein. & Pand Hemeccius ad Pundectas. 5th torn, of his Works.
TABLE OF ABBBEYIATIOKS. 2XXi
MBBKKVlATUam, VAMa OF WOBK, WSO,
•••• Heiskeirs Reports, Tennessee.
Hem. & M Hemming & Miller's Rep. , in V.-C. Wood's Court.
Hen. & Munf Henning & Munford's Rep., Virginia, 1806-1809.
Hertius de ColL Leg. . Her tins de Ck>l]isione Legum.
Hill, S. a Hill 8 Reports, South Carolina, 188a-1835.
Hill Hiira Reports, New York, 1841-1843.
Hob. Hobart's Reports, King's Bench.
Hoffman on Leg. Study Hoffman's Course of Legal Study, 2d ed.» 1886b
Holt Lord Holt's Reports.
Holt, N. P. R. Holt's Nisi Prius Reports.
Hop. & Colt Hop wood & Coltmati's Registration Cases.
How. St Tr Howell's State Trials.
How. S. Ct R Howard's Rep., United States Sup. Ct , 1848.
Habb. Ev. of Sue. . • • Hubback on Evidence of Succession, London.
Hame» Com Hume's Commentaries on Criminal Law of Scot-
land.
Humph. • Humphrey's Reports, Tennessee, 1839-1841.
Hutt ••• Hutton's Reports, Common Pleas.
Inst Coke's Institutes.
L R., GL L The Irish Reports, Common Ijaw Series, Dublin^
1867-1878.
Ida. Idaho Reports.
Ill Illinois Reports.
HI. App • . Illinois Appellate Court Reports.
Ind Indiana Reports.
Ind. Ter. Indian Territory.
Iowa Iowa Reports.
Ir Irish.
Ir. Cir. R. Irish Circuit Reports.
Ir. Law R Irish Law Reports.
Ir. Law R., N. S Irish Common Law Reports, New Series, 1880«
Iredell • Iredell's Reports. North Carolina, 1840-1841.
J. J. Marsh J. J. Marshall's Rep. . Kentucky, 1829-1882.
J. Kel Sir John Kely nge's Reports, King's Bench.
Jacobsen's Sea L. Jacobsen's Sea Laws.
Jebb, C. G Jebb 8 Crown Cases Reserved, Ireland.
Jebb &B Jebb & Bourke's Rep., Queen's Bench, Ireland.
Jebb & Sy Jebb & Symes' Rep., Queen's Bench, Ireland.
John& Johnson's Reports, New York, 1828.
Johns. & Hem Johnson & Hemming's Rep. in Ct. of Wood, V.-C.
Jones. Jones, Exchequer Reports, Ireland.
T. Jones. Sir Thomas Jones' Reports.
W. Jones Sir William Jones' Reports.
Joy on Conf Joy on Confession in Criminal Cases, Dttblin, 184S»
Jar Jurist Reports.
Jar., N. S •• • .... Jurist Reports, New Series.
Just. Justinian.
Kans. Kansas Reports.
Kebi Keble's Reports, King's Bench*
Kel Sir John Kelynge's Sports.
Kent, Com Kent's Commentaries, Boston.
Ky Kentucky Reports.
Kirby Kirby 's Reports, Connecticut, 1785-1788.
Knapp, P. Ci R Knapp's Privy Council Reports.
Im a Cave Leigh & Cave's Crown Cases Reserved.
U J., H. L Law Journal (New Series^ House of Lords.
L. J.. P. C. Law Journal (New Series), Privy CounciL
L J., Q. B Law Journal (New Series), Queen's Bench.
L J., C. P Law Journal (New Series), Common Pleas.
L J., Ex Law Journal (New Series), Exchequer.
L. J., M. C Law Journal (New Series), Magistrates' Cases.
L J., E& C Law Journal (New Series), Ecclesiastical Cases.
L J. (0. S.) Law Journal (Old Series),
ZZXll TABLE OF ABBBEVIATIONa.
IBBBSTIATIOm. VAMM OF WOBK, BTO.
Lb, M. & P Lowndest Maxwell and Pollock's Practice Gases.
L. B., Q. B. D Law Reports, Queen's Bench Division, from
1st Jan., 1876.
L. R., C. P. D Law Reports, Common Pleas Division, from
Ist Jan., 1876.
L. R., Ex. D Law Reports, Exchequer Division, from 1st Jan.,
1876.
L. R., App. Cas Law Reports, Appeal Cases, from 1st Jan., 1876.
L. R., P. X) Law Reports, Probate Division, from Ist Jan.,
1876.
L. R.. Ir Law Reports, Ireland, from Jan. 1, 1878.
LL., U. S Laws of the United States.
Law Kag Law Magazine.
Law Mag., N. S Law Magazine, New Series.
Law R • Law Review.
Law Rec., 1st Ser. or
2dSer Law Recorder, Ist and 2d Series. Irish.
Law Rep., H. L Law Reports, House of Lords.
Law Rep., H. L Sc. . . Law Reports, Scotch Appeals in House of Lords.
Law Rep., P. C Law Reports, Privy Council.
Law Rep., Q. B Law Reports, Queen's Bench.
Law Rep. , C. P Law Reports, Common Pleas.
Law Rep., Ex Law Reports, Exchequer.
Law Rep., C. C Law Reports, Crown Cases Reserved.
Lea Leach's Crown Cases. 4th ed., London, 1816L
LejT. Obs Legal Observer.
Leigh Leigh's Reports, Virginia, 1820-1889.
Leon Leonard's Reports, King's Bench.
Lev Levinc's Reports. King's Bench.
Lew. C. C Lewin's Crown Cases on Northern Circuit
Lit. R •.... Littleton's Reports.
Loff t Loff t's Reports, King's Bench. 1 vol.
Long. &T Longfield and Townsend's Rep. Exchequer, Ire-
land. 1 vol.
Lords' J., or L. J Journal of the House of Lords.
Ld. Ray Lord Raymond's Rep., KingV Bench & Com. Pleas.
Lou Reports of Louisiana, 1830-1840.
La. Ann Louisiana Annual Reports.
Lutw Lutwyche's Reports, Common Pleas.
M Sir F. Moore's Reports.
M. A Missouri Appellate Court Reports.
M. & Gr Manning & Granger's Reports. Common Pleas.
M. & M Moody & Malkin's Nisi Prius Reports.
M. & P Moore & Payne's Reports, Common Pleas.
M. & R Manning & *Ry land's Reports, King's Bench.
M. & Rob Moody & Robinson's Nisi Prius Reports.
M. & Sc Moore & Scott's Reports, Common Pleas.
M. & Sel Moore & Selwy n's Reports, King's Bench.
M. & W Meeson & Welsby's Reports, Exchequer,
McC McCord's Rep. South Carolina, 1820-1828.
McC, Ch. R McCord's Chancery Reports, South Carolina, 1825-
1827.
McClel McCleland's Reporta. Exchequer.
McClel. &Y McCleland & Young's Reports, Exchequer.
Macq. Pr. in H. of L. . Macqueen's Practice in the House of Lords and
Privy Council.
Macq. So. Cas. H. of L. Macqueen's Scotch Cases in the House of Lords,
1852.
McDouall, Inst McDouall's (Ld. Bankton) Institutes of Law of
Scotland.
McNagh. Elem. of Hin-
doo L McNaf^hten's Elements of Hindoo Law.
Mann. Dig. N. P Manning's Digested Index to the Nisi Prius Re-
ports.
TABLB OF ABBREVIATIONS. ZZXIU
•4
ABBSBTU.TiailB. KAMB Or WORK, BIO.
V anh Marshall's Reports, Ck>mnion Pleas. 2 vola.
A. K. Marsh A. K. Marshall's Rep. Kentucky, 1817-1821.
J. J. Marsh J. J. Marshall's Rep., Kentucky, 1829-1832.
Mart Martin's Reports, Louisiana, 1809-1829.
Mart, N. S. Martin's Reports, New Series, Louisiana, 1828-1880.
Mart, N. C. B Martin's North Carolina Reports.
Mart &Y Martin & Yerger's Rep., Tennessee, 1825-1828.
Mason. Mason's Reports, United States. 1st Circuit Court,
1810-1880. Judge Story's Decisions.
Haas Reports of Massachusetts, 1804-1822.
Math. Pres. Et Mathews' Treatise on Presumptive Evidence.
Lond. 1827.
May, L, of Pari May's Law of Parliament, 5th ed. London, 1868.
Md.. Maryland Reports.
Me. , Maine Reports.
Menoch. de PrsBs .... Menochius de Prsasumptionibus, Gbnevsd, 1670.
Mete MetcalTs Reports, Massachusetts, 1840-1840.
Mich Michigan Reports.
Milw. Ec. Ir. B Milward's Ecclee. Irish Rep., Dr. Badcliffei
Minn Minnesota Reports.
Hiss Mississippi Reports.
Mo Missouri Reports.
Mo. App Missouri Appellate Courts Reports.
Mont Montana Reports.
Mod Modem Reports.
B. Mon. B. Monroe's Kentucky Reports.
Mon Monroe's Reports. Kentucky, 1824-1828.
Moo. C. C Moody's Ci*own Cases Reserved. 2 vols.
Moo. Ind. App. C Moore's Indian Appeals to Privy Council.
Moo. P. C. R Moore's Privy Council Reports.
Moo. P. C, N. S Moore's Privy Council Reports, New Series.
Moore John Bayly Moore's Reports, Common Pleas.
Morison Morison's Scotch Reports.
Monf. Munford's Reports, Virginia, 1810-1820.
Mnrph Murphy's Reports, North Carolina, 1804-1819.
N. &M. Nevile & Mannintc's Reports, King's Benoh.
N. & P Nevile & Perry's Reports, Queen's Bench.
N. R Bosanguet & Puller's New Rep.. Common Pleas.
N. T. Sup New York Supplement, West Publishing Ca, St.
Paul. Minn.
N. Y. Sup. Ct New York Superior Court
Neb Nebraska Reports.
Nev Nevada Reports.
N. J. New Jersey Reports.
N. Y New York Reports.
K. M New Mexico Reports.
N. C North Carolina Reports,
N. D North Dakota Reports.
N. W. Rep Northwestern Reporter.
K. York Civ. Code The Code of Civil Procedure of New York, 1850.
N. York Cr. Code The Code of Criminal Procedure of New York,
1850.
N. H Reports of New Hampshire, 1816-1848.
New R The New Reports in all the Courts. London, 1862.
New Seas. Cas New Session Cases, by Carrow, Hammerton &
Allen.
Nott ft Ma Nott & M'Cord's Rep., South Carolina, 1817-1820.
2 vols.
Not Noy's Reports, King's Bench.
Ohio R Hammond's Ohio Reports, Ohio, 1821-1889.
Ohio St Ohio State Reports.
Ore Oregon Reports.
Ought*. Oughton's Ordo Judicorum.
ZZXiV TABLB OF ABBBBTIATIOHS.
ABBBJCVUnaSB. ^ KAMX OT WORK, KTO.
Owen : Owen's Reports, King's Bench and Common Fleas.
P. & D Perry & Davison's Reports, Queen's Bench.
P. Voet de Stat Paul Voet de Statutis.
Pac. Rep Pacific Reporter,
Paine Paine's Rep.. United States, 2d Cir. Ct., 1810-1826.
Paine &D.Pr Paine & Duer's Practice Courts of the United
Statts. New York, 1830.
Paley, Conv Paley on Convictions.
Palm Palmer's Reports, King's Bench.
Pari. Deb Parliamentary Debates.
Pa. St Pennsylvania State Reports.
Pea. Add. Cas. ....... Peake's Additional Nisi Prius Cases.
Pfia. Ev Peake on Evidence, 5th ed., 1822.
Pea. R Peake's Nisi Prius Rep., 3d ed,, 1820.
Pearce & D Pearce & Dearsley's Crown Cases Reserved.
Pears. Chit. PI Pearson's Chittv. Prec. in Plead., 1847.
Peck Peck's Reports," Tennessee, 1822-1824.
Penning Pennington's Rep. , New Jersey, 1806-1818.
Penn Reports of Pennsylvania, 1829-1832.
Pet Peters' Rep.. Supreme Court of United States,
1827-1843.
Pet. C. C. R Peters' Circuit Court Reports, United Stetes, 8d
Circuit Court, 1808-1818.
Petersd. Abr Petersdorff' s Abridgment.
Ph. Ev Phillips on {ividence.
Phil Philadelphia Reports.
Pick Pickerin»j;'s Rep., Massachusetts, 1823-1840.
Pickle Tennessee Reports.
Poph Popham'K Reports, King's Bench.
Porter Porter's Reports, Alabama, 1834-1839.
Poth. (£uv. Posth. . . . Pothier, CEuvres Posthumes.
Price Price's Reports, Exchequer.
Puff Puiiendorff 's Law of Nations.
Q. B Adolphus & Ellis' Rep., New Ser., Queen's Bench.
Q. B. D Queen's Bench Division.
Quintil. Inst. Orat. .. . Quintilianus de Institutione Oratoria.
R Rex or Regina.
R. I Rhode Island Reports.
R. & R Russell & Ryan's Crown Cases Reserved.
Rand Randolph's Reports, Virginia, 1821-1828.
Rawle Rawle's Reports, Pennsylvania, 1828-1885.
Ld. Ray Ld. Raymond's Rep., King's Bench & Com. Pleas.
T. Ray Sir Thomas Raymond's Rep., Common Law
Courts.
Rep Lord Coke's Reports.
Rep. of Cri. Law Com. Reports of Criminal Law Commissioners.
Rep. temp. Finch Reports in the time of Lord Chancellor Finch.
Rep. temp. Hardw. . . . Reports in the time of Lord Hardwicke.
Res Respublica.
Rev. Code Revised Code.
Rev. St Revised Statutes.
Ridgi, L. && Ridgway, Lapp & Schoale's Rep., King's BencK
Ireland.
Riley Riley's Law Cases, South Carolina, 183^1887.
Rob. on Frauds Roberts on Frauds.
Roll. Abr RoUe's Abridgment.
Roll. R Rolle's Reports, King's Bench.
Rosooe, Ev Ruscoe on Evidence at Nisi Prius.
Russ. on Cr Russell on Crimes and Misdemeanors.
Ry. & M Ryan & Moody's Nisi Prius Reports.
S. C Same Case.
S. C. South Carolina Reports.
S. D South Dakota Reports.
TABLE OF ABBBBVIATIONS. ZXZT
1BBBXTIAII0K8. VAMZ OV WOBK, Bia
'S. P Same Poi n t
Salk. Salkeld's Reports, Common Law Ck>urfeek
Sawy Sawyer's Reports (U. S. C. C).
Say Sayer's Reports. King's Bench.
Scott Scott's Reports, Common Pleas.
Scott, N. R Scott's New Reports, Common Pleas.
Selw. N. P Selwyn's Law of Nisi Priua 15th ed.,186M(l,
London.
Serg. A; R Sergeant & Rawle's Rep., Pennsylvania, 1818-29.
Seas. Ca New Sessions Cases, by Carrow, Hammerton &
Allen.
Shepl Shepley's Reports, Maine, 1886-1841
Shower Shower'» Reports, King's Bench.
Sid Siderfin's Reports, King's Bench.
Skinn Skinner's Reports, King's Bench.
Smith, L. C Smith's Leading Cases.
South Southard's Reports, New Jersey, 1816-1890.
S. £. Rep. Southeastern Reporter.
Sa Bep Southern Reporter.
Stair Inst Stair's Institutes of the Law of Scotland.
Stark« Ev Starkie on Evidence.
Stark. R. Starkie's Nisi Prius Reports.
Steph. PI Stephen on Pleading.
Story, Ag Story on Agency.
Story, Part Story on Partnership.
Story, R. Story's Reports* United States, Ist Circuit, 1880-
1845. Judge Story's Decisions.
Str Strange's Reports in all Courts.
Sty Style's Reports, King's Bench.
Samn Sumner's Reports, 1st Circuit Court of tJniled
States. Judge Story's Decisions. 1880-1889.
S W. Rep ■ .... V Southwestern Reporter.
Swift, Dig. Swift's American Digest.
T. Jonea Sir Thomas Jones' Reports.
T. B Durnford & East's Term Reports, King's Bench.
T. Ray Sir Thomas Raymond's Rep. The Common Law
Courts.
Tait, Ev. Tait on Evidence. Edinburgh, 1884.
Taaot Taunton's Reports, Common Pleas.
Tenn Tennessee Reports.
Tex Texas Reports.
Tex. App. Texas Appellate Court Reports.
Tidd Tidd's Practice.
Tomlin, L. Diet Tomlin's Law Dictionary.
Tyr Tyrwhitt's Reports, Exchequer.
^^f. & Gr ^rwhitt & Granger's Reports, Exchequer.
U. S United States.
Utah Utah Reports.
Van Leeuw. Comm. • • Van Leeu wen's Commentaries.
Vaagh Taughau's Reports, Common Pleas.
Va. Virginia Reports.
Ventr Ventris' Reports, King's Bench and Common
Pleas.
Vt Vermont Reports.
Vin. Abr Viner'e Abridgment.
Virjc. Cas. Virginia Cases, Virginia, 178^1826. 2 vols.
W. Bl Sir William Blackstone's Reports (K. B. & C. F.\
^* Joo Sir William Jones' Reports, King's Bench.
^> N Weekly Notes, edited oy Council of Law Report-
ing.
w. R Weekly Reporter.
'W., W. & H Willmore, Wollaston ft Hodges' Reports, Queen's
Bench.
ZZXyi TABLB OF ▲^BBVIATIOKB.
ABBBKVU.TI0M8. FllB OF WORK, Bta
W. Va West Virginia Reports.
Wash Washington's Reports, Virginia, 1790-1706.
Wash. G. G. R. Washington's Gircuit Gourt Reports, United States^.
8d Gircuit Gourt, 1808-1827.
Watts Watts' Reports, Pennsylvania, 1882-1840.
Watts & S Watts & Sergeant's Rep. Pennsylvania, 1841, 1842.
Wend Wendall's Reports. New Yorlt, 1828-1841.
Whart Wharton's Reports, Pennsylvania, 1835-1840.
Wheat Wheaton's Rep., Sup. Gt. of United States, 1816-
1827.
Wheel. G. G Wheeler's Griroinal Gases, New York.
Wight w Wightwick's Reports, Exchequer.
Wi lies Willes' Reports, mostly Gommon Pleas.
Wils Wilson's Rep., King's Bench and Gommon Pleas.
Wis. Wisconsin Reports.
Wing. Max Wingate's Maxims.
Wms. Saund Saunders' Rep., edited hy Williams, J.
Wood, Inst. LL. Eng. Wood^s Institutes of the Laws of England.
Woodb. & M Woodbury & Minot's Reports, United States, Ist
Gircuit. 1845-1847.
Wright Wright's Reports. Ohio, 1831-1834.
Wyo Wyoming Reports.
Y. & C. Ex. R Younge & Colly er's Reports, Exchequer,
Y. & J Younge & Jervis' Reports, Excheouer.
Yeates .*. Yeates' Reports, Pennsylvania, 1791-1808.
Yelv Yelverton's Reports, King's Bench.
Yerg Yerger's Reports, Tennessee, 1882-1837.
AN ALPHABETICAL INDEX OF CASES,
WITH THB
BOOK AND PAGE WHERE THE SAME MAY BE FOUND, AND THE
PAGE WHERE CITED IN THIS WORK.
Aaron ▼. Alexander, 8 Camp., 85 •
Abbott T. Kimball, 19 Vt., 551 .
Abercrombie ▼. Marshall, 2 Bay (S. C). 90
Abrath v. N. E, R. Co., 4 Q. B. Div., 440
Abraham ▼. Cooper, 81 Pa. St., 823 .
Ackerlj ▼. Parkinson. 8 M. & S., 411 .
Ackworth v. Kempe, Dour., 42 .
Acton V. Coffman, 86 N. W. Rep., 775
Adams v. Adams, 18 Pick., 384 .
Adams v. Freeman, 9 Johns. (N. Y.), 118
Adams y. Barrett, 6 Ga., 404
Adams t. Bicknell, 126 Ind., 210
Adams y. Gardner, 78 HU 568 .
Adams y. Smith, 58 111., 417
Adkins y. Brewer, 8 Cow. (N. Y.), 216
Alcorn y. Philadelphia, 44 Pa. St., 848
Alien y. Graj, 11 Conn., 95
Allen y. Scott, 18 III., 80 . . •
Allen y. Wright, 8 Car. & P., 522
Allen y. Leonard, 28 Iowa, 529 • •
Alien y. Cod man, 189 Mass., 186
Allen y. CraiK, 2 Green (N. J.), 102 .
Allen y. Shedd, 10 Cash. (64 Mass.), 875
Allen y. Haley, 20 Pac. Rep., 90 .
Alharobra Ca y. Richardson, 72'Cal., 598
Allison y. Chandler, 11 Mich., 554
Allison y. Rheam, 8 Serg. & R. (Pen^.), 189
Alexander y. Herr, 11 Pa., 587 .
AL Add. W. Co. y. Richardson, 14 Pac. Rep., 879
American Ex. Co. y. Patterson, 78 Ind. ,> 480
American Ins. Co, y. Hathaway, 28Paa Rep., 428
Ames y. Langstrath, 10 Pa. St, 184 •
Ames y. Rathbun, 55 Barb., 194 . •
Ames y. Schneider, 69 111., 876 .
Ammerroan y. Crosby, 26 Ind., 451 •
Anderson y. Burroughs, 4 C. & P., 210
Anderson y. Friend, 85 111., 185 .
Anderson y. Coleman, 53 CaL, 188 •
Andre y. Johnson, 6 Blackf., 875
Andrews y. Portland, 79 Me., 488
Antdiff y. June (Mich.), 45 N. W. Rep., 1019
A])gar y. Woolston, 48 N. J. Law, 57 .
AibocUe T. Taylor, 8 Dowl., 160
294,
•
. 877
• 104, 601
. 189
• . .461
• 484, 492, 493
• 129, 185, 148
. 189
. 578 .
. 166
108, 1(
04, 107, 183
. 284
. 255, 470
. 410
. 569
, 150, 15^
. 219
> 185, 14»
. 16S
, 197, 434*
. 197
. 16, 409
.. 444
. 561
. 55a
. 554
> 245,246.
. 101
. 546.
. 558
. 485-
. 556
. 520
. 810
244, 454, 580, 586
. 281, 584
. 115, 120, 180
810, 811, 818, 578
. 11
. 8»
. 484
. 406, 410
. 852
! 2
25, 461, 473
zxxvm
INDEX OF OASBS.
Armstrong v. Grofcan, 5 Sneed, 108 .
Arrowsmith v. Le MeRurier, 2 New R., 211
Artega v. Conner, 88 N. Y., 408 .
Arundel v. Tregano, Yelv., 117 . • •
Arundell v. Wliite, U East, 216 .
Ash v. Marlow, 20 Ohio, 119
Atchison, T. & 8. F. R. Co. v. Watson (Kan.), 15 Pac.
Atchison. T. & S. F. R. Co. v. Rice, 86 Kan., 693
Atherton v. Fowler, 96 U. S., 519
Atkinson v. Matteson, 2 T. R., 172
Atlantic & G. W. R. Co. ▼. Dunn, 19 Ohio St, 162
At water t. Baltimore, 81 Md., 463
At wood V. Monger, Sty., 872
Aultman, etc., Ck). ▼. Mickey, 21 Pac. Rep., 294
Austin V. Charlestown, eta, 8 Met. (Mass.), 196
AveiiU ▼. Williams, 4 Denio (N. Y.), 295 .
Ayer ▼. Ashmead, 81 (Ik>nn., 447 .
Ayers v. Russell, 8 N. Y., 885 .
Aystead y. Shedd, 12 Mass., 611 .
. 470
61
. 230
8,860
829, 476
277, 278, 310, 578
Rep., 877 . 278
. 414
. 78
. 356
. 524
. 219
. 453
. 558
. 391
. 601
440, 445, 446, 448
. 437
192, 194
259. 267.
401, 465, 467,
B.
Balinger ▼. Sweet, 1 Abb. N. C 263 .
Bacon v. Towne, 4 Cush. (58 Mass.)* 317
808, 804, 838. 834, 886, 338, 364, 385
Bacon v. Waters, 2 Allen, 400 .
Bailey v. Bethune, 5 Taunt.. 580
Bailey ▼. Wiggins. 6 Harr. (Del.), 462 .
Baldwin v. Hamilton. 3 Wis., 747
Baker v. Miller, 6 Johns., 195
Baker v. Green, 4 Bing.. 817
Baldwin v. Weed, 17 Wend., 224
Baldwin v. W. R. Corporation, 4 Gray, 833
Barnard v. Poor, 21 Pick., 380 .
Barhydt v. Valk, 12 Wend. (N. Y.), 145
Barhyte v. Shepherd, 86 N. Y., 243 .
/Barker v. Anderson, 81 Mich., 508
Barker v. Braham, 8 Wils., 376 .
Barnardiston v. Soame, 1 East, 566, n.
Baron v. Mason, 81 Vt, 189
Barrett v. Collins, 10 Moore, 446
Barrett v. Spaids, 70 III., 408
Barrett v. Choteau, 94 Mo., 18 . •
Bartlett ▼. Brown, 6 R. I., 87
Bartlett v. Hawley, 38 Minn., 808
Bath v. Metcalf, 145 Mass., 274 . •
Bates V. Loomis, 5 Wend. (N. Y.), 134
Bates V. Davis, 76 111., 222 .
Bates V. Pilling, 6 B. & C, 88 .
Bar wick v. English Joint Stock Bank, L. R., 2 Ex., 295
Barnett v. Reed, 51 Pa. St., 190 .
Bassett v. Porter, 10 Cush. (Mass.), 418
Barnes v. Martin, 15 Wis., 240 .
Barry v. Edmunds, 116 U. S., 560
Bayer v. Burr, 8 Neb., 68 . . .
Bayner v. Brewster, 1 Gale & D., 669 ,
Beach v. Ramsey, 2 Hill (N. Y.). 809 .
Beach v. The Fulton Bank, 7 Cow. (N. Y.),
Beau vain v. Sir William Scott. 8 Campb.,
Beardmore v. Carrington, 2 Wils., 244
Beaumont v. Greathead, 2 Com. B., 494
Beavis v. Smith, 18 C. B., 126 .
Beckwith v. Kaihroad Co., 148 Mass., 68
485
838
. 4^
291, 294, 296, 299.
474,511, 612,513
828, 359, 361
. 474
. 162
. 102
. 366
. 410
76, 165, 186
. 410
. 529
. 171, 483
. 141
. 481, 482
209, 380, 493
. 141
. 247, 465
. 367
. 257
. 451
. 810, 811
. 248, 813
. 878
. 503
. 580, 603
. 88
. 383
. 410
. 432
. 498
. 580
. 529
. 485
. 388
. 881
129, 185, 148
. 525
. 516
. 16
. 386
INDEX OF GASESp
XXXIX
^76, 28i,
•
58, 217,
89, 126, 1*85,
254, 282, 288,
851,
Beckdoldt ▼. Grand Rapids, etc, ICj Co., 15 N. E. Bep., 886
Beecher v. Parelle, 9 Vt, 852 .
Belk V. Broadbent, 8 Ttom R., 185 •
Belknap v. Railroad Co., 49 N. H., 858
Bell ▼. Orahamy 1 Nott & McC., 278 • 7,
Bell ▼. Keepers (KanO, 14 Pac. Rep., 543
Bell ▼. McKinney, 63 Miss., 187 .
Bell V. Matthews (Kan.)* 16 Paa Rep., 97
Bell V. Ur8ur>% 4 litt. (Ky.), 884
Bell V. Pearcy, 5 Ired, (N. C). 88
Belt ▼. Lawes (G. A.), 12 Q, B. D., 866
Bennett t. New Orleans, 14 La. Ann., 130
Bennett ▼. Hyde, 6 Conn., 24
Berner v. Dunlap^ 94 Pa. St., 8ai
Berrier v. Moorehead, '22 Neb.. 687
Bertrand v. Morrison, Breese (111.), 175
Berry ▼. Adamson, 6 B. & C, 524
Berry ▼. Vreeland, 21 N. J. L., 183 .
BesBon t. Southard, 10 N. Y., 236
Beveridge t. Rawson, 51 Ul., 504 •
Beville v. State, 16 Tex. App., 70
Bevins ▼. Smith, 21 Pac. Rep., 1064 •
Bicknell ▼. Dorion, 83 Mass., 478
Biering ▼. First Nat. Bank, 69 Tex., 599
Bigelow V. Stearns, 19 Johns., 39
Birchard ▼. Booth, 4 Wis., 66
Bird ▼. Jones, 7 Q. B., 742. .
Bird ▼. Perkins, 33 Mich., 28
Bird V. Randall, 3 Burr., 1345
Bitting y. Ten Eyck, 82 Ind., 421
Bixby V. Brundifce, 68 Mass., 129
Black V. Ward, 27 Mich., 191 .
Blake ▼. Davis. 20 Ohio, 231
Blalock ▼. Randall, 76 111., 224 •
Blaine ▼. Cochran, 20 Ala., 320 •
Bliss V. Wynan, 7 Cal., 257
Blizzard v. Hays, 46 Ind., 166 466,
Blodeett v. Race, 18 Hun (N. Y.), 182
Blood ▼. Say re, 17 Vt.. 609
Bloom V. Burdick. 1 Hill (N. Y.), 180 .
Bloss V. Gregor, 15 La. Ann., 425 . • • • • 451,
Blnmfleld's Case, 5 Coke, 87
Blunk V. Atchison, T. & S. F. R. Co., 88 Fed. Rep., 811 • 840,
Blunt V. Shepard. 1 Mo., 219
Blunt V. Little, 8 Mason, 102
Blythe v. Tompkins. 2 Abb. (N. Y.) Plr., 468 . . . 142,
Boardman v. Acer, 13 Mich., 77
Board of Trustees v. Schroeder, 58 HI., 858
BoGock ▼. Cochran. 3:3 Hun (N. Y.), 521
Buerger ▼. Langenberg, 97 Mo., 390 .
Bogert ▼. Phelps, 14 Wis., 88
Bohm y. Dunphy* 1 Mont. T., 838
Boneeteel v. Bonesteel, 28 Wis., 245 • • 101,
Booz ▼. Fate, 43 Ind., 60 . . .
Boogher v. Life Ass'n of Am., 75 Mo., 819
Boogher v. Hough, 99 Ma,' 183 .
Boonboldt v. Lorrilard, 86 La. Ann., 103
Borden v. Fitch, 15 Johns. (N. Y.), 121
Boetick v. Rutherford, 4 Hawk, (N. C), 88 • • • 289,
Bowden ▼. State, 1 Tex. App., 137
Bowman ▼. Brown, 52 Iowa, 437 •
Bowdlock V, Boston, 101 U. S., 16
Boyd ▼. Cross, 85 Md., 197 .
Boylaton y. Kerr, 2 Daly, 220 .
102,
109, 872,
. 558
. 88
. 170
. 49a
247, 478
276, 561
184
276, 561;
. 281
462, 511
. 505.
. 2m
V . 528
884, 35.^
75, 186
. 563
61, 451
. 52»
310, 477
. 108
. 82
. 559
329, 393
. 498
148, 148
. 498
. 57
. 167
445, 448
284, 452
352, 401
. 551
. 554
. 364
. 445
. 310
467,511
. 15.^
. 89
. 144
456, 457
444
569, 577
. 190
. 310
153, 48 (
. 445
. 222
152, 153
. 206
. 199
. 325
484, 595
230, 4»3
. 524
. 295
. 283
135, 148
465, 51 1
. 339
. 284
. 219
. 261
. 434
il
INDBZ OF OASBS.
IBracegirdle v. Axford, 2 11 & S., 77
iBrackett v. Norton, 4 Ck)Dn., 517
^Bradley v. Fisher, 18 Wall. (U. S.X 835
Bradley v. Trustees, 58 HI., 858 .
BraDt V. Glutton. 1 M. >& W., 408
Brant v. Higgins, 1 Mo., 728 •
Brand ▼. Hinchman, 68 Mioh., 596
Bradlaugh v. Edwards, U C. B., 877
Brainard v. Head, 15 La. Ann.. 489
Brainerd v. Brackett, 88 Me., 580
Bradstreet v. Furgeson, 28 Wend. (N. Y.
Brennan v. Tracy, 2 Mo. App., 540
Brewer v* Jacob, 22 Fed. Rep., 217
Bridge v. Ford, 4 Mass., 641
Briggs Y. Woodwell, 10 Mass., 856
Briggs V. Richmond, 10 Pick., 895
Bright V. Fatten, 5 Mackey (D. C), 584
Brittain v. State, 7 Humph., 159
Brobst V. Ruff, 100 Pa. St., 91
Brockway v. (>awford, 8 Jones L. (N. (X),
Brooks V. Warwick, 2 Stark. R., 889
Brooks V. Carpenter, 8 Bing., 297
Brookshore v. Hopkins, Lofft., 240
BristowV. Haywood, 1 Stark., 48
Bristow V. James, 7 T. R., 259 .
Britton v. Cole, 1 Salk., 408
Brissell ▼. Gold, 1 Wend. (N. Y.), 210
Brock V. StimsoD, 108 Mass., 520
Brown v. Chadsey, 89 Barb., 253
Brown v. Compton, 8 Duru. & K, 424
Brown v. Lakemau, 12 Cush., 482
Brown v. Howard, 14 Johns., 119
Brown v. Willoughby, 5 Cola, 1
Brown v. Randall, 86 Conn., 56 •
Brown ▼. City of Utica, 2 Barb. (N. Y.), 104
Brown v. Feeter, 7 Wend., 801 .
Brown v. Crowl, 5 Wend. (N. Y.), 298
Brown v. Cambridge, 8 Allen (Mass.), 474
Brown v. Marsh, 7 Vt. 820
Brown V. Smith, 88 Dl., 291
Brown v. Demont, 9 Cow. (N. Y), 263
Brown v. Barnes, 89 Mich., 211 .
Brown V. Ralston, 4 Rand., 504 . •
Bruington v. Wingate, 56 Iowa, 140 .
Bruce v. Tyler (Ind.), 26 N. E. Rep., 1081
Brushaber v. Stageniann, 22 Mich., 266
Buckland v. Qreen, 188 Mass., 421
Buckley v. Enapp, 48 Mo., 153 .
Bullock V. Babcock, 3 Wend. (N. Y.), 891
Bullitt V. Clement, 16 B. Mon. (Ey.), 198
Bulkeley v. Eeteltas, 2 Seld., 884
Bump V. Betto, 19 Wend., 421 .
Burnap v. Albert, Taney (U. a C. C), 244
Burch V. Hard wick, 80 Gratt. (Va.), 24
Burns v. Coulson, L. R., 8 C. P., 563 .
Burns v. Erben, 1 Rob. (N. Y.), 555 .
Butler V. New York & E. R. R Co., 2 Barb
Builer V. Enight, L. R.. 2 Exch., 109
Butrick ▼. Lowell, 1 Allen (Mass.), 172
Burton v. Railroad Co., 88 Minn., 189
Burt V. Place, 4 Wend., 591
Burhans v. Sauford, 19 Wend., 417 •
Burkett v. Sanata, 15 La., 837 •
Burnnam v. Seaverns, 101 Mass., 860
• 508
218
126,127,183,140,1^,156
. 80
. 209
. 28.J
. 409
. 484
. 16H
. 470
688 • • • . 482
. 5H5
. 452
. 147
80, 160
. 248
. 101
. 839
815, 817
488 197
li, 207, 456, 4bl
. 453
116. 120
451,477
. 868
894,453
. 485
877,435
0, 102, 485, 487, 492, 494
. 189
888, 861, 401, 477
113. 114, 453
294, 456, 457
835, 862, 363
. 857
. 405
. 433
440,441
445, 446, 448
460, 5^5
. 483
. 628
. 554
. 242
. 470
. 545
. 852
. 628
106, 391
184, 142
. 278
63, 803, 5i?8
310, 368
. 219
. 225
. 211
,110 •• . . 366
. 215
218, 219, 220
271, 276, 278, 561
291, 297, 298, 302, 304, 536
344, 352
. 363
892,602
INDEX OF CASES.
3di
Butt V. Jones, 1 NeU Gow, N. P., 99
Butter worth v. Soper, 18 Johns., 448
Butchers* Union v. Crescent City, etc.
Bnrgett v. Burgett, 48 Ind., 78 .
Burtis ▼. Chambers, 51 Iowa, 645
Byne v. Boore, 5 Taunt., 187
Byrne ▼. (Gardner, 88 La. Ann., 0
Co., 87 La. Ann., .881
. 850
418, 431
. 503
. 511
. 589
• 461
. 603
a
126, 188,
828,
494
828,
Gaddy ▼. Barlow. 1 Man. & Ry., 277
Caffrey v. Drugan. 144 Mass., 294
Cakes v. N. W. R'y Co., 36 Wis.. 657
Cairo, etc. R. R. Co. v. Holbrook, 72 III, 419
CaJder v. Halkell, 8 Moore's P. C. C, 28
Calif V. Thomas. 81 111., 478
Callaghan v. Meyers, 89 111., 566
Callet V. Keith. 2 East, 260
Qimpbell v. O'Brien, 9 Rich. (S. G), 204
Campbell v. Philipe, 17 Mass.. 244
Candell v. London, 1 T. R, 520
Capersou v. Sproule, 89 Mo. , 89
Capley v. Orover & B, Mach. Co., 2 Woods
Carter v. Howe M. Ca. 51 Md.,.291 .
Caswell V. Cross. 120 Mass., 545
Carle v. Ayers. 58 N. Y., 14
Carleton v. Akron S. P. Co., 129 Mass., 40
Carleton v. Taylor, 50 Vt., 220 .
Carratt v. Morley, 1 Ad. & El., N. R., 18
Cardival v. Smith, 109 Mass., 158 . 827
Carey v. Matthews.
Carey v. Shuts, 60 Ind., 17 .
Carev v. Day, 86 Conn., 152
Canfield v. The Eleventh School District, 19 Conn., 529
Case ▼. Shepard, 2 John. Cas., 27
Case V. Wooly, 6 Dana (Kj-.), 17
Casey v. Sevatsen, 80 Minn., 516
Casebeer v. Drahoble, 18 Neb., 465 .
Casebeer v. Rice, 18 Neb., 203 .
Cassier v. Fales, 189 Mass.. 461 .
Castro V. De Uriarte, 12 Fed. Rep., 250
Caseburn v. Reed, 2 B. Moore. 60
Catlin V. Pond, 101 N. Y., 649 .
Caupal V. Ward, 106 Mass., 289 .
Candell v. London, 1 T. R., note
Carter v. Southerland. 53 Mich., 597 •
Center ▼. Springs, 2 Iowa, 898 .
Chase ▼. Ingalls. 97 Mass., 524 .
Chambers v. Robinson, 1 Stra., 691 .
Chandler v. McPherson, 11 Ala., 916 •
Charles v. Able. Brightly N. P., 181 .
Chapman v. Cawrey, 50 III, 512 •
Chapman v. Kerby, 49 111., 211 .
Chapman v. Dyett, 11 Wend., 81
Chapman ▼. Woods, 6 Blackf. (Ind.), 504
Cheever v. Sweet, 151 Mass., 186
Chegaray v. Jenkins, 5 N. Y., 376
Chlckering v. Robinson, 8 Cush. (Mass.), 548
Chinn v. Morris, 2 Car. & P., 861
Child V. Boston, 4 Allen, 41
Chicago V. Turner, 80 111., 419 .
Chicago A; N. W. R. R.>Ca v. Dnnleavey, 129111.
877,
142,
461,
829, 887, 388, 845,
484,
190,
282,
223,
844,
868,
88,
281,
810,
240,
842, 844, 858,
Chicago, etc, R. R. Co. y. Townadin, 15 Pac. Rep., 889
132 653,554,556,
. 458
486, 486
. 222
. 504
158, 154
532, 578
. 601
. 418
. 281
191, 192
14
462, 587
. 838
881,884
. 212
. 483
212, 487
. 166
. 209
851, 852
. 881
494, 586
. 504
. 448
. 89
144
271, 277
844
584.590
. 170
276, 561
. 476
. 484
166, 887
. 461
. 591
821, 587
. 171
342, 456
. 310
. 855
272, 537
. 550
. 186
361, 868
25y. 295
. 168
184, 142
. 199
. 218
219
558, 559
. 560
zlu
INDEX OF CASES.
Chesman v. Carney, 89 Ark., 816
Cincinnati, etc., v. Clifford, 15 N. E. Rep., 524
City of OreenSeld v. State, 15 N. E. Rep., 241
Clarlt V. Holdridgre, 58 Barb. (N. Y.), 61 *.
Clark V. Postan, 6 C. & P., 423 .
Clark V. Spicer, 6 Kans.. 440
Clark V. Molyneux, L. R, 8 Q. B., 287 (C. A.),
Clark V. Montague, 1 Gray, 446 .
Clark v. Cleveland, 6 Hill, 844 .. .
Clarke v. May, 2 Gray, 410 . . • . 182,
Clarke v. Randall, 9 Wis. 185 .. .
Clarke v. Am. D. & I. Co., 85 Fed. Rep., 479
Clements v. Apparatus Co., 10 Atl. Rep., 442
Clements v. Od. Ex. App. Co., 67 Md.. 461
Clements v. Maloney, 55 Mo., 852
Clem V. Holmes, 88 Grat, 722 .
Clifford V. Brandon, 2 Camp., 258
Clifton V. Grayson, 2 Stew. (Ala.), 412
Cloon V. Gerry, 8 Gray (Mass.), 203
Closson V. Staples, 42 Vt., 209 .
Cloupy V. Henly, 2 Esp., 540
Com. V. Bonner, 9 Met. (51 Mass.), 410
Com. V. Burdick, 2 Pa. St., 163 .
Com. V. Carey. 12 Cush., 246 . .
Com. Y. Dowdican, 115 Mass., 188
Com. V. Hall, 75 Mass., 262
Com. V. Kirkbride, 3 Brews., 586
Com. V. Kirkbride, 2 Brews., 400
0>m. V. Leach, 1 Mass., 59
Com. V. McLaughlin, 12 Cush., 615
Com. v. Nickerson, 6 Allen, 518
(}om. V. Randall, 4 Gray (Mass.), 86
Com. V. Ridgway, 2 Ashm., 247
Com. V. Snelling, 15 Pick. (82 Mass.^ 887
Com. V. TraceypS Met,, 586
Com. V. West Penn. Hos., 8 Pittsb., 299
Com. V. Wheeler, 2 Mass., 172 •
Cole V. Hindson, 6 T. R., 284
Cole ▼. Curtis, 16 Minn., 182
Coles V. Hulin, 10 Johns., 85
Codrington v. Lloyd, 8 Ad. & El., 449
Cochrane v. Tocher, 14 Minn., 885
Cochrane v. Quackenbush, 29 Minn., 876
Cody V. Adams, 7 Gray, 59 .
Colby V. Jackson, 12 N. H., 526 . 58, 115, 120
CoUett y. Foster, 2 HurL & N., 856
Comeygs v. Vasse, 1 Pet, 198
Cooke V. Nethercote, 6 C. & P., 741
Coffin y. Gardner, 1 Gray (Mass.), 159
Coombs T. Scott, 12 Allen, 493 .
Commissioners v. Rose, 1 Desaus., 469
(/Ocke V. Jennor, Hob., 66 .
Onklin v. Thompson, 29 Barb. (N. Y.), 218
Coleman y. Harcourt, 1 Lev., 140
Coleman v. Insurance Co., 36 Ia. Ann., 92
Coleman y. Allen, 79 Ga., 637
Comer y. Knowles, 17 Kans., 436
Collins y. Hayte, 50 111., 353
Conway v. Reed, 66 Mo.. 346
Cooper V. Armour, 42 Fed. Rep., 215
Codington v. Lloyd, 8 Ad. & El., 449
Conklin v. Thompson, 29 Barb., 218
Conrad v. Insurance Co., tt Pet, 268
Cooney y. Chase (Mich.), 45 N. W. Rep., 833
147,
121,
148,
852, 857,
153, 154, 156,
680,
284,
288, 284, 287,
16.
128,
152,
111.
288,
888,888,
178,
271, 277, 278,
! 209,
! 871,
169, 211,
124, 180, 507,
212^
71
445,
244,499,
172, 485, 807,
269,
245,
492^
559>
559
158
15-
162
287
845
861
15T
212-
542^
254
298^
49»
52»
71
101
28»
495
81
238
149
81
889
87
11^
124
14T
81
63
113
854
508
87
124
339
894
572
69
49B
73
548
22.'>
508
215
54
.81
203
104
213
448
10ft
889^
458-
528
493
my
106
16
380^
891
525
24ft
mOKX OF OASES.
xliii
Cook V. Palmer, 6 B. & C, 739 .
Ox>k ▼. Walker, 80 Ga., 519 .. •
Cooper Y. McJankin, 4 Ind., 290 •
Cooper V. Utterback, 87 Md., 282
Cooper V. Ra^rnolds, 10 WaU. (U. 8.). 808, 816
Coryton v. Litbebye, 2 Saund., 115 .
Copley V. Grover & Baker Co., 2 Woods, 494
Cottrell Y. Ck>ttrell, 126 Ind., — ; 25 N. E. Rep.
Cottrell T. Richmond, 5 Mo. App., 688
Cotton V. James, 1 B. & Ad., 128
Corning ▼. Southland, 8 Hill, 552
Conpal V. Ward, 106 Mass.. 289 .
Cornwall y. Richardson, Ry. & M., 805
Coveney ▼. Hale, 78 Cal., 552
Crabtree v. Horton, 2 Munf., 69 •
CralR V. Burnett, 82 Ala., 728 .
Craker v. C. & N. W. R'y Ck).. 36 Wis., 657
Cranch v. White, 1 Bing. N. C, 418 .
Crawford ▼. Satchwell, Str., 1218
Crescent City Live-stock Co. v. Butcher's Union
Creswell t. Hoghton, 6 T. R, 856
Crosby ▼. Farmer, 89 Minn., 805
Crossman v. Olsen, 62 Me., 528 .
Crozer v. Pilling, 4 Barn. & Cress., 26
Culbeth's Case, 49 Cal., 486
Cummings v. Stone, 18 Mich., 70
Cunningham ▼. Mitchell, 67 Pa. St, 78
Cunningham v. Freeborn, 11 Wend., 241
Curry ▼. Wilson, 48 Ala., 688
Currv V. Pringle, 11 Johns. (N. Y.), 444
Cutler V. Bo we, 122 Mass., 541 .
Cutler T. Smith, 57 111., 252
905
etc.
290,
. 190-
. 281
111, 112
247, 261, 288, 810
. U2
. 866^
881, 883, 884
. 470-
. 585^
. 287
185, 21ir
166, 887
. 467
. 554
14
. 184
514, 616
. 36a
78, 173
120 U. 8.. 141 . 283,
295, 296, 298, 299, 502*
. 102
. 216^'
. 103
456, 477
. 86
. 483^
. 168
. 248
. 504
101» 169, 485, 498, 518
. 166.
520, 604
D.
Daggett ▼. Cook, 11 Cush., 263 .
Dai ley v. Houston, 58 Mo., 268 .
Danforth v. Classen. 21 111. App., 577
Darrah v. Gow, 48 N. W. Rep., 851 .
Dargaw v. Mobile, 81 Ala., 469 .
Davenport v. Lynch, 6 Jones' L., 545
Davie v. Wisher, 72 111.. 262
Davies ▼. Jenkins, 11 Mees. & W., 745
Davidson v. Slocumb, 11 Pick., 464 .
Davis V. Caffer, 10 B. & C, 28 .
Davis v. Hudson, 29 Minn., 28 • •
Davis ▼. Burgess, 54 Mich., 514 • •
Davis V. Merril, 47 N. H., 208 .
Davis V. Wilson, 65 111., 528
Davis V. Stone, 120 Mass., 228 .
Davis V. Bowe, 118 N. Y., 55
Davis V. Russell, 5 Bing., 854 • •
Davis V. Mason, 4 Pick., 56 • •
Davis V. Jones, 4 B. & C., 506
Davis V. Hardy, 6 Barn. & Cress., 225
Dawson v. Vansandau, 11 Weekly Rep., 516
Dawes v. Peck, 8 T. R., 830
Day V. Bach, 87 N. Y., 56 .
Day V. Woodworth. 13 How. (U. S.), 871
Dear mood v. St. Amant, 4 La. Ann., 874
Delano v. Saiith Charities, 138 Mass., 63
Delegal v. Highly, 3 Bing. N. C, 950
160, 162, 598^
. 118
. 80
. 555'
. 219^
810. 811
810, 594, 595-
. 217
. 455
. 9a
. 145
71
115, 120, 121
. 80
. 166
. 185-
. 877
. 418
. 448
. 46L
. 15-
. 866>
200, 201
621, 525, 542
267, 458-
. 887
• 26&
jdiv
INDEX OF GABBS.
Denny v. Tyler, 8 Allen, 225
Oenlon v. Noyes, 6 Johns., 296 .
Denver, etc., R'y v. Harris, 123 U. S., 697
Dennehey v. Woodsum, 100 Mass., 197
Derecourt v. Cobbishley, 85 E. C. L., 188
Deslonde v. 0*Hern, 89 La. Ann., 961
Develing v. Sheldon, 83 III., 890 .
Deyo V. Van Valkenburgh, 5 Hill, 242
Oieraer v. Herber, 75 Cal., 287 -
Disk V. Wilson, 10 Oreg., 490
Dietz V. Langfltt, 63 Pa. St., 284
Dickinson v. Brown, Peake*s N. P., 234
Dickinson v. May wood, 20 La. Ann., 61
Dickinson v. Brown, 1 Esp., 218 .
Dinsman v. Walke, 12 How., 405 •
Dodds V. Board. 48 III., 95
Doe V. Davis, 1 Esp., 858
Doemlinger v. Tschechtelln, 12 Daly (N. Y.), 84
Dodge V. Alger, 58 N. Y. Sup. Ct, 107
Doherty v. Munson, 127 Mass., 495
Dolan V. Thompson, 129 Mass., 205 .
Donnell v. Jones, 18 Ala. (N. S.), 509
Donnelly v. Daggett, 145 Mass., 814
Dorendenger v. Tschecbtelen, 12 Daly (N« Y.)i 84
Douglass V. State, 6 Yerg., 525
Downing v. Herrick, 47 Me., 402
Downing v. Butcher, 2 Moo. & R., 874
Drago V. Moss, 1 Speer's L. (S. C), 212
Drake v. Mitchell, 8 East, 258 .. .
Driggs V. Burton, 44 Vt, 124 . • . 884, 841,
Drohn v. Brewer, 77 111., 280 .
Dunlop V. Olidden, 81 Me., 485
Dunstan v. Patterson, 2 C. B. (N. S.), 495
Dusenbury v. Keitev. 85 N. Y., 888 .
Dynes v. Hoover, 20 How. (U. S.), 66
115, 120
. 162
217
288, 284, 838, 401
. 71
. 502
. 101
170, 185, 213
. 290, 296
. 146
247, 456, 457
. 68
. 281
. 856
. 494
. 434
. 491
. 456
. 485
. 517
. 286
871, 410, 548
. 822
. 283
90
. 184. 142
. 467
. 391
. 440, 444
842, 850, 851, 868, 561
. 525
6
.. 170
. 847
. 232
E.
Easton V. Bank, 66 Cal., 128 . •
Eastman v. Keasor, 44 N. H., 618 •
Eaton V. Hill, 50 N. H., 235
Edgeworth v. Carson, 43 Mich., 241 .
Edwards v. Midland Railway, 6 Q. B. D., 287
Edwards v. Williams, 2 Esp. N. P., 87
Elder v. Morrison, 10 Wend., 128
Ellis v. Cleveland, 54 Vt., 437 .
Elliott V. Porter, 5 Dana (Ky.), 299 .
Elliott V. Hayden, 104 Mass., 180
Ellsworth, etc, R'y Co. v. Maxwell, 18 Pac. Rep,
Elsee V. Smith, 2 Chitt, 508
Ely V Thompson, 8 A. K. Marsh. (Ky.), 70
Emerson v. Cochran, 111 Pa. St, 619
Emery v. Hapgood, 7 Gray, 55 .
Crwin v. Blake, 8 Pet, 18 .
Evans v. Thompson, 12 Heisk., 534
Estopinal v. Peyrorap, 87 La. Ann., 477
Esty V. Chandler, 7 Mass., 464 .
Estv V. Wilmot, 15 Gray. 168
Evarts v. Kiehl, 102 N. Y., 296 .
fivarts V. Foster, 1 N. H., 877 .
£wing V. Codding, 5 Blackf.. 488 •
£wing V. Sandford, 21 Ala., 157 . •
. 16
207, 208, 310
. 105
683. 588
882, 384
. 451
.86, 192, 198, 194
. 230
. 440
440
.,819 • • '. 659
. 476
. 155
. 810
169,209, 211
. 212
. 685
. 142
• 190
. 165
• 184
. 141
. 504
660,688
IND£X OF OA8I8.
xlv
F.
Fa^an ▼. Knox, 40 N. Y. Super. Ot, 41
Fairbanks v. Stanley, 18 Me., 296
Falver ▼. Faxon (Mara.). 9 N. £. Rep., (121
Falvey ▼. Stanford, L. R., 10 Q. B., 54
Farmer v. Darling, 4 Burr., 1974
Farmer v. Croeby et al., 43 Minn., 459
Farman ▼. Lauman, 73 Ind., 566
Famum ▼. Freley, 56 N. Y., 451 .
FauBt T. Burton, 15 Mo., 619 • •
Fay V. O'NeiU, 86 N. Y.. 11
Fellows V. Gtoodman, 49 Mo., 62 '•
Fenelon v. Butts, 49 Wis., 392 . 872, 484, 485
Fenton ▼. Sewing Machine Ga, 9 Pbila., 189
Ferguson v. Earl of Kinnoul, 9 CI. & F., 821
Feme ▼. Wood, 1 B. & P., 578 .
Ferrihe v. Proctor. 2 Wils., 386 .
Fetter's Case, 8 Zab., 811 .
Fibba v. Allen, 1 Scam., 547
Rnch V. Cocken, 5 Tyrwh., 774 .
Fire Association ▼. Flemming, 78 Qtk,, 738
Firestone v. Rice, 71 Mich., 877 .
Fischer v. Langbein, 103 N. Y., 84
Fischer v. Raab, 81 N. Y., 235 .
Fish T. M. P. R R Ck>., 6 Blatch., 862
Fish V. Scott, Peake's C, 185
Fisher ▼. Boston,' 104 Mass., 87 •
Fisher v. Bristow, 1 Doug., 215 •
Fisher v. Deans, 107 Mass., 118 •
Fisher v. McGirr, 1 Gray, 1
Fisher v. Shattuck, 84 Mass., 252
Fishkill. eta, Ass'n v. National Bank, 80 N. Y.,
Fitzgibbon ▼. Brown, 43 Me., 169
Flanagan v. Hoyt, 86 Vt.. 565
Flanders v. Sherman, 18 Wis., 575
Fleckinger v. Wagner, 46 Md., 581
Fleming ▼. Ball, 1 Bay (S. G. ), 8 .
Fleming v. McDonald, 50 Ind., 278
Fletcher ▼. Fletcher, 1 £11. & Ell., 420
Flewster v. Royle, 1 Camp., 187 .
Floyd V. Baker, 12 Coke. 26
Floyd V. Hamilton, 83 Ala., 285 .
Floyd V. State, 12 Ark., 43 .
Forbes v. Hicks, 27 Neb., Ill .
Forbes ▼. Hagman, 75 Va., 168 .
Forsdike v. Stone, L. R., 3 C. P., 607
Formwalt ▼. Hilton. 66 Tex., 288
Forsythe ▼. Ellis, 4 J. J. Marsh. (Ky.), 298
Fo3hay v. Ferguson, 2 Denio (N. Y.), 617
Foster v. Wiley, 27 Mich., 244 .
Foster t. Lawson, 3 Bing., 455 .
Foster ▼. Essex Bank, 17 Mass., 503 .
Foster v. Smith, 10 Wend. (N. Y.), 877
Fox V. Davis, 55 Ga., 248
Fox V. Gaunt, 8 B. & A., 798
Foxtey's Case, 5 Co., 109a .
Fniizer ▼. Turner, 76 Wis., 582 .
Frankfurter v. Bryan, 12 Brad. (111. App.), 549
Freeman t. Arkell, 2 B. & C, 494
Freese v. Tripp, 70 111., 496
French v. Smith, 4 Vt., 868
French v. Kirk, 1 Esp., 80 .
492,
885,
498,
62
. 495,
7, 247, 281,
897, 483,
844, 350. 851,
485, 498.
494, 513, 580,
239,
73, 86, 195,
200, 202,
' . 160,
247, 283, 456, 457,
115, 120,
125, 127,
. 473,
. 456,
! 170,
252, 265,
580
212
470
504
473
217
527
580
604
352
4D9
604
524
583
808
159
8«
364
894
581
598
203
201
133
461
219
842
163
169
147
217
511
190
212
586
113
445
160
91
140
485
101
9:^
457
504
172
190
4C3
. 218
. 867
. 381
. 505, 506
. 325
. 81
. 234
. 879
. 880
828, 451, 452, 4H1
524
303
453
xlvi
INDEX OF OASES.
Frost V. Holland, 75 Me., 108 .
Frothinf^ham v. Adams Ex. Ca. 86 Fed. Rep., 253
FulleDweider v. McWilliams, 7 Bush, 889 .
288,290
. 625
. ^5
G
Gainer v. Hill, 4 Bing^, 213
Gaither V. Blowen, 11 Md., 586 .
Qaloway v. Stewart, 49 Ind., 166
Galoway v. Burr, 32 Mich., 833 .
Galpin v. Page, 18 Wall., 860 .
Gar V. Selden, 4 N. Y., 91 .
Gardner v. Bain, 6 Lans., 257 •
Gpring v. Fraser, 76 Me., 118
Garnett ▼. Farrand, 6 B. & C., 611
Garrard v. Dallas, 4 Jones L., 175
Garrard v. Willett, 4 J. J. Marsh. (Ky.), 628
Garrett v, Mannheimer, 24 Minn., 193
Ganssly v. Perkins, 80 Mich., 492
Gay V. Lloyd, 1 Greene (Iowa), 78
Gee V. Culver (Ore.), 6 Pac. Rep., 775
Gelston v. Hoyt, 18 John., 561 .
Gelzenleuchter v. Neimeyer, 64 Wis., 816
Gener v. Sparks, 1 Salk., 79
German In& Co. v. Smelker, 16 Pac. Rep., 785
Gihson v. Charters, 2 B. & P., 129
Gibbe v. Ames, 119 Mass.. 60
Gibbe v. Randlett, 58 N. H., 407 .
Gibbs V. Chase, 10 Mass., 125
Gilbert v. Burtenshaw, Cowp., 280
Gilbert y. Emmons, 42 111., 143 .
Gilbert v. Kennedy, 22 Mich., 117
Gilbertson v. Fuller, 40 Minn.. 413
Gillet V. Mo. VaL R. R. Co., 55 Mo., 815
Girlington v. Patfield, 1 Vent., 47
Girot V. Graham, 41 La. Ann., 511
Gilmore v. Mathews, 67 Me., 517
Glasscock v. Bridges, 15 La. Ann., 672
Glasgow V. Owen, 69 Tex., 167 .
Glever v. Hinde, 1 Mod., 168
Goddard v. Grand Trunk R'y, 57 Me., 202
Goddard v. Smith, 6 Mod., 262 .
Godfrey v. Soulat, 38 La. Ann., 915
Goff V. Hawks, 5 J. J. Marsh. (Ky.), 841
Goldsmith v. Picard, 27 Ala., 142
Gold V. Bissell, 1 Wend., 215
Goodright v. Govett, 7 T. R, 827
Goodrich v. Warner, 21 Conn., 433
Grolding V. Crowle, Saver, 1
Goodspeed v. £}ast Had. Bank, 22 Conn., 530
Gordon v. Jeuney, 16 Mass., 465 .
Gordon v. Longest. 16 Pet., 101 •
Good V. French, 115 Mass., 208 . • • 267,
Good V. Ingliss, 8 Pa. St., 51
Good V. Mvlin. 8 Pa. St., 51
Gorton v. De Angelis. 6 Wend. (N. Y.X 418
Goslin V. Wilcox, 2 Wils., 302 .
Gould V. Gardiner, 8 La. Ann., 11
Gould V. Sherman, 10 Abb. Pr. (N. Y.), 411
Gould V. Barratt, 2 M. & Rob., 171
Guulding v. Clark, 84 N. H., 148
Gowing V. Gowhill. 12 Iowa, 495
Grace v. Mitchell, 81 Wis., 533 .
268,
. 7
. 607
. 81(>
580,586
145, 146
. 16
. 487
6
133, 141
. 504
290,291
. 8ia
. 624
144
276. 561
. 447
879, 595
. 60
. 559
240,477
207, 852-
101, 102, 484
. 86e
. 529
226, 228, 885, 861, 898
. 246
. 271
. 888
. 452
. 458
. 524
. 810
253,864
. 5a
. 524
884, 840, 842
. 458
. 503
. 477
61, 159, 493
. 868
294, 363
. 7, 14
223, 881, 883, 884, 524
. 212
. 184
269, 282, 877, 885, 462
. 546
. 496>
278, 280, 483
. 82T
• 310
. 28a
. 491
. 145
. 156
. 190
INDEX OF 0ASB8.
xlvii
Orace v. Teague, 81 Me., 559
Graham v. Noble, 13 Serg. & R. (Pa.). 238
Orainger v. HUl, 4 Bing., 212 .
Granger v. Warrington, 8 III. (3 Gil.), 209
Grand Rapids, etc., R*y Ca v. Ellison, 20 N. E. Rep.,
Grant v. Moore, 29 Cal., 644
Grant v. Moeier, 5 M. & Gr., 123
Grant ▼. Deuel, 3 Rob. (La.), 17 .
Granvelt v. Burrell. 1 Ld. Ray., 253 •
Graves v. Dawson, 130 Mass., 78
Gray v. Wass, 1 Greenl., 257
Gray v. Reg., 5 Irish Law Rep., 488 •
Green v. Craig, 47 Mo., 90 .
Green v. Kennedy, 46 Barb. (N. Y.), 16
Green v. Elgee, 5 Ad. & El., N. R., 114
Green v. Ramsey, 2 Wend., 611 .
Green v. Talbott, 36 Iowa, 499 .
Gregory v. Darby, 8 C. & P., 749
Gregory v. Thomas, 2 Bibb, 286
Gregory v. Chambers, 78 Me., 297
GrifUs V. Sellars, 2 Dev. & B. (N. C). 492
Griffiths V. Sellars, 4 Dev. & K L., 177
Gnffith V. Smith, 22 Wis., 646 .
Griggs V. Foote, 4 Allen, 195
6rignon*8 Lessee v. Astor, 2 How. (U. S.), 341
Grinnell v. Phillips, 1 Mass., 529
Grinnell v. Stewart, 82 Barb., 550
Griswold v. Sedgwick, 6 Cow. (N. Y.), 456
Greenwade v. Mills, 31 Miss., 464
Griffin v. Chubb, 7 Tex., 603
Griffin v. Coleman, 4 Hurl. & N., 265 .
Groenwelt v. Burwell, 1 Salk., 396 •
Grey V. Livesey, 8 Mod., 842
Griffie v. McClung, 5 W. Va., 131
Grumon v. Raymond, 1 Conn., 40
Grove v. Van Duyn, 44 N. J. L., 654 •
Grund v. Van Vleck, 69 111., 478
Guengerech v. Smith, 34 Iowa, 348 .
Guild V. Cranston, 8Cu8h., 506 .
Guille V. Swan, 19 John., 381
Gulf, C. & a F. R'y Co. v. James, 73 Tex., 12
Gunz V. Heffner, 33 Minn., 216 .
Gnrney v. Tufts, 37 Me., 133
Gurley v. Wood, 16 N. H.. 539 .
Gwvne V. Root, Lutw., 290
Gyfford v. Woodgate, 11 East, 296 •
7,57,
185
11, 277,
. 434,
269, 283, 368,
13,
61, 165, 860,
254, 276. 283,
. 296,
133,
190,
170, 173, 174, 175,
91.
225, 226,
. .
880, £88,
! 127,
434
296
454
451
559
278
435
462
129
337
213
233
525
435
209
1^8
156
15
465
44(5
290
361
199
218
146
191
248
894
281
283
377
129
389
440
80
152
228
498
3U2
869
544
217
80
225
128
476
H.
Hablichtel v. Yambut, 89 N. W. Rep., 877
Hadden v. Mijis, 4 C. & P., 486 .
Hardkraderv. Moore, 44 Cal., 144
Hafford ▼. New Bedford, 16 Gray, 297
Hahn v. Kelly, 84 Cal., 891
Hahn v. Smidt, ^ Cal., 383
Hale V. Baylen, 22 W. Va., 234 .
Hall V. Plumer, 1 Lev., 196
Hall V. Semple, 8 F. & P., 337 .
Hall V. Suydam, 6 Barb. (N. Y.), 88
Hall V. O'Mally, 49 Tex., 70
Hally V. Carson, 89 Ala., 345
Ualtzman v. Robinson, 2 MacAr. (D. C), 520
Hambieton v. Dempeey, 20 Ohio, 168
• 555
. 492
. 583, 584
218, 219, 220
. 146
. 12
. 296
• .56
. 115, 120
• 247, 473
. 485
. 88
• 134
. 534
«lviii
IKDBZ OF OASBS.
Hammond v. Howell, Rec of Ion., 2 Mod.. 218
Hammond v. Will, 60 HI., 404 .
Hamilburg v. Shephard, 119 Mass., 80
Hamilton v. WriKht, 87 N. Y., 603 .
Hamilton v. Smith. 89 Mich., 222
Hamlin v. Spaulding, 27 Wis.. 860 .
Hanna v. Spotts, 6 B. Mon. (Ky.), 862
Hancock ▼. Baker, 2 K & P., 260
Hardy v. Robinson, 1 Keb., 440 •
Harpham v. Whitney, 77 111., 82
Harkins v. State, 6 Tex. App., 452
Harmon v. Brotherson, 1 Denio (N. Y.), 587
Harris v. Louisville, etc., R. R Co., 85 Fed. Rep
Hartford v. Roper, 21 Wend. (N. Y.), 615 *
Harrison v. Hod.ii^on, 10 B. <fe C, 445
Harrison v. Clark, 4 Hun, 685 .
Harrison v. Bevington, 8 C. & P., 708
Harrington v. Fuller, 18 Me., 277
Harvey v. McAdams, 32 Mich., 472 .
Harvey v. Tyler, 2 Wall., 828 .
Harlow v. Humiston. 6 Cow., 189
Haskins v. Ralston, 69 Mich., 68
Hatchell v. Kimbrough, 4 Jones' L. (N. C), 163
Hathaway v. Allen, Brayt., 152
Hathaway v. Rice, 19 Vt., 102 .
Hatch V. Cohen, 84 N. C, 602 .
Haupt V. Pohlman, 6 Abb. Pr. (N. Y.), 801
Hawkins v. Dutchess O. S. Co., 2 Wend., 452
Hawk V. Evans, 76 Iowa, 593
Hawk V. Ridge way, 33 111., 473 .
Hawley v. Butler, 54 Barb., 490
Hayes v. Bowe, 12 Daly (N. Y.), 193 .
Hays V. Blizzard, 80 Ind., 457 .
Hays V. Creary, 60 Tex., 445
Hays v. Hay man, 20 La. Ann., 886
Hays V. Younglove, 7 B. Mon., 545 .
Hayne v. Blair, 62 N. Y., 19
Hay ward v. Goldsbury (Iowa), 19 N. W. Rep., 807
Hay ward v. Cuthbert, 4 McCord, 854
Haythorne v. Lawson, 8 C. & P., 196
Hayner v. Cowden, 27 Ohio St., 292 .
Hazzard v. Israel, 1 Binh. (Penn.), 240
Hazzard v. Flurv, 120 N. Y., 223
Hazzard v. Harding, 63 How. (N. Y.), 826
Havens ▼. H., etc., R. R. Co., 28 Conn., 69
Head v. Briscoe, 5 C. & P., 7«4 .
Heard ▼. Harris, 68 Ala., 48
Hecker v. Jaret, 8 Binn., 404
Hedges ▼. Chapman, 2 Bing., 528
Heldt V. Webster, 60 Tex., 207 .
Hender v. Robbins, 1 Har. & W., 204
Henke v. McCord, 55 Iowa, 378
Hendrick v. Whitemore, 105 Mass., 28
Henderson t. Brown, 1 Cai. Rep., 92 •
Henderson v. Allen, 1 H. & M., 235 .
Herman v. Brookerhoff, 8 Watts (Pa.), 240
Hershey v. O'NeUl, 86 Fed. Rep,, 170
Herrick v. Manley, 1 Caines (N. Y.), 253
Hewlett V, Cruchley, 5 Taunt., 277 .
Hickok V. Trustees, eta, 15 Barb., 427
Hicks V. Foster, 13 Barb., 663 .
Hill V. Bateman, IStr., 710 . •
Hill V. Covell. 1 N. Y., 522
Hill V. Hawkins, 6 Humph. (Tenn.), 867
126. 121^
. 273
. 829
. 185
409, 461, 589
485, 494
. 391
58, 197
. 388
7, 247, 252, 460
. 691
152, 153
., 116 •• . 101
. 10^
74. 7a
152. 153^
. 367
• 140
. 22.>
145. 146
. d92
. 67
. 4a5
. 288
. Ill
. 86*3
. 48a
. «81
. 16
62, 91, 481, 528, 595
. 483
. 230
344, 858. 362
172, 175
. 584
5
282» 462, 561, 587
. 213
15,338
. 867
. 528
190, 192
. 268
. 4a5
. 508
. 890
184, 141
. 89
. 91
. 288
61
140, 153, 165, 156, 157
. 184
. 89
. 654
296, 297
82,85
. 418
. 815
. 888
496, 646
159, 172
• 554
. 282
INDEX OF OASSa.
zlix
Hill T. Paldron, 88 Mo., 258
Hill V. Palm, 88 Mo., 18
Hill V. RobiDBon, 28 Mich.» 24 •
Hill y. Taylor, 50 Mich., 549
Hill V. Yates, 26 Moore, 80 .
Hilsdorf v. St. Louis, 45 Mo., 04
Hitch V. Lambright, 66 Ga., 228
Hirsh 7. Feeney. 83 111., 548
Hitson T. Forest, 12 Tex., 820 .
Hoadley ▼. N. Trans. Co., 115 Mass., 804
Hobart v. Haggett, 8 Fairf. (N. Y.), 367
Hobbs Y. Branscomb, 8 Gamp., 420
Hogg V. Ward, 8 H. & N., 417 .
Holburn v. Neal, 4 Dana, 120 .
Holcomb Y. Cornish, 8 Conn., 875
Holliday v. Sterling, 62 Mo., 821
Holly V. Mix, 8 Wend., 350 . 68, 76, 88,
Holroy y. Doncaster, 3 Bing., 492
Holmes y. Blyles, 80 Iowa, 365 .
Holmes y. Holmes, 44 111., 168 •
Hoose Y. Sherill, 16 Wend., 36 .
Hopner y. McGk>wan, 22 Jones & S., 98
Hopkins y. Crowe, 7 Car. & P., 373
Hopkins y. Railroad Co., 36 N. H., 9
Home Y. SulIiYan, 83 111.. 30
Homer y. Batty n, Bull. N. P., 62
Hope Y. Com., 9 Mete., 134
Horton y. Byles, 1 Sid., 387
Holloway y. Com., 11 Bush, 344 •
Honlden y. Smith, 14 Q. B., 841 •
Hosley y. Brooks, 20 111, 115
Howard y. People, 8 Mich., 208 .
Howe Y. Mason, 14 Iowa, 510
Howell Y. Jackson, 6 Car. & P., 728
Hoye Y. Bash, 1 M. & Gt„ 784 .
Hoyt Y. Thompson, 5 N. Y., 320
Hackle y. Money, 2 Wils., 205 •
Hudson Y. Cook, Skinn., 131
Hughs Y. McCoy, 11 Colo., 591 .
Humphries y. Parker, 52 Me., 507
Hull Y. Hawkins, 5 Humph. (Tenn.), 357
Humilbui^h y. Sbepard, 119 Maes., 80
Hunt Y. Hunt, 72 N. Y., 217
Hunt Y. Bailroad Co., 26 Iowa, 868
Huntington y. Biaisdell, 2 N. H., 818
Hard y. Shaw, 20 111., 856 1.
Hyams y. Michel, 8 Bich. Law, 808
Hyde y. Moffatt, 16 Vt, 271
OjdB Y. Cooper, 26 Vt., 652
274,
165,
177,
14, 877,
■ •
134
328, 511, 539!
* 247,583,
179, 186, 210,
470,
410, 411,
184
498, 528,'
128,
103,
6$
310
43»
551
461
21 »
141»
585-
281
54&
418^
17^
484
584
142
5S4
506^
482
175.
522
15a
182
211
524
471
60
37^
888
480
150
528
80
156^
873
170
54
525^
159
136-
561
462
166>
142
49»
6a
278.
212
5oa
104
m., etc., R. R. Co. Y. Cobb, 68 BL, 68 • •
Indedon y. Berry, 1 Campb., 203 . •
Innram y. Root, 51 Hun, 238; 2 N. Y. Sup., 858
L B. & W. R. R. Co. Y. Bu^ey, 71 DL, 391
Irion Y. Lewis, 56 Ala., 190 ....
Iron Mt Bk. y. Mercantile Bank, 4 Ma App., 605
Isaacs Y. Brand, 2 Stark. R, 160
Israel y. Brooks, 28 111., 576
^30'
, ' . ,604^
10, 18, 461
• 340
. 50^
. 131
. 882, ^S^
14. 461
229, 278, 288» 289, 466, 467, 511, 5ia
1
DTDBZ OF 0A8B8.
Jacks Y. StimsoD, 18 III. 701
Jackson V. New M. R Co., 84 Conn., 266
Jackson ▼. Mather, 7 Cow., 801 .
Jackson v. Burleigh, 8 Esp. C. 84
James v. McCabbin, 2 Call, 278 .
James v. Phelps, 11 Ad. & El, 483
Jarmain v. Hooper, 6 M. & G., 827
Jay V. Almy, 1 Woodb. & M.. 262
Jenner v. Carson, 111 Ind., 522 .
Jenny v. Delesdenier, 20 Me., 183
Jennings v. Randall, 8 T. R, 387
Jewett V. Lack, 6 Gray. 238
John V. Bridgman, 27 Ohio St., 22
Johns V. Marsh, 9 Reporter, 148
Johnson v. Daws, 6 (Jr. C. C, 283
-Johnson v. Pye, 1 Lev., 169
Johnson v. Browning, 6 Mod., 216
Johnson v. Smith, 64 Me., 558
Johnson v. Martin, 2 Murphy (N. C), 248
Johnson v. State, 29 Tex., 492 .
Johnson V, Rilev, 13 Ga., 97
Johnson v. Miller, 63 Iowa, 529 . 276, 290. 291
Johnson v. Culver, 19 N. E. Rep., 129
Johnson v. State, 2 Humph. (Tenn.), 288
Johnson v. Chalmers, 10 Ired. L. (N. C), 287
Johnson v. Shove, 72 Mass., 498
Johnson v. Tompkins, 1 Bald., 571 «
Johnston v. Moorman, 80 Vs., 131 ,
Johnstone v. Sutton, 1 T. R, 645
Jones V. Boker, 7 Cow., 445 • «
Jones V. Brown, 55 Iowa, 74 • •
Jones V. Finch, 84 Va., 204 • «
Jones v. Gwynn, 10 Mod., 214 • «
Jones V. Hoyt, 1 Ld. Ray., 738 .
Jones V. Seward, 40 Barb. (N. Y.), 668
Jones V. Kirtsey, 10 Ala., 839
Jones V. Givin, Gilb. Cas., 185 • <
Jones V. Jones, 71 111., 562 .
Jordan v. Hansen, 49 N. H., 202
Jordan v. Alabama, etc., R'y Co., 74 Ala., 86
-Jordan v. Lewis, 2 Stra., 1122 .
Josselyn v. McAllister, 25 Mich., 45
Joyce V. Parkhurst, 160 Mass., 243
295,
820,
7,18,
288,326,
2S2,
462,461,
261,
408,
288,
170,
661, 678, 592,
109,
126, 186, 140,
14, 277, 298,
283,
828,858,
. 498,
. 141.
223, 882, 388,
486, 493, 678,
• 435,
S78
146
471
476
191
804
172
484
537
212
891
845
462
262
310
891
452
528
289
879
172
594
560
110
281
329
56
148
461
6
156
290
7
894
232
296
453
516
152
624
18
586
436
K.
Kavanagh v. Beck with, 44 Barb., 195
Kanouse v. Lexington, 12 Dl. App., 318 .
Kansas Pac R'y Co. v. Kessler, 18 Kan., 523
Kansas Pac. RV Co. v. Little, 19 B:an.. 269
Karney v. Paisler, 13 Iowa, 89 .
Kaye v. Kean, 18 B. Mon. (Ky.), 889 .
Kearney v. Holmes, 6 La. Ann., 873 .
Keeler v. Passett, 21 Vt, 539 .
^el ey v. Bemis, 4 Gray (Mass.), 183 .
Ke y V. Sherlock, L. R., 1 Q. B., 686, 697
5® y ▼• Sage, 12 Kan., 109 ....
^elly V. Newburyport H. R. R. Ca, 141 Mass., 496
• 248
. 80
. 624
. 524
• 528
. 284
. 458
. 891
184, 155, 156
. 504
886,862
• 108
INDEX OF CASES.
li
Kelly ▼. Noyes, 43 N. H., 309
Kelton V. Bevins, Cooke (Tenn.), 90
Kempe*8 Lessee v. Kennedy, 5 Crancfa, 178
Kenaall v. Powers, 45 Mass., 453
Kenny v. Oreer, 13 111., 433
Kenner ▼. Morrison, 13 Hun, 304
Kennon v. Ficklin, 6 B. Mon. (Ky.), 414
Kennon v. McRae, 3 Stew. & Port., 349
Kerr v. Mount, 38 N. Y., 689
Kerr v. Workman, Addison, 370
Kitting V. Clark, 53 Vt. 379
Kidder v. Parkhurst, 3 Allen, 398
King V. Coate, Lofft., 73-76
Kingsley v. Coyle, 58 Pa. St., 461
Kimball v. Bates, 50 Me., 306 .
Kimball v. Boston, 1 Allen, 417 .
Kimmel y. Henry, 64 111., 505 .
Kindred v. Stitt. 51 III., 401
Kirkpatrick v. Kirkpatrick, 35 Pa. St, 388
Kline v. Shuler, 8 Ired. (N. C). 484
Knickerbocker v. Colver, 8 Cow. (N. Y.), Ill
EInight V. Jermin, Cro. Eliz., 134
Knight V. Nelson, 117 Mass., 458
Knowlton v. Bartlett, 1 Pick. (Mass.), 370
Knott V. Sargent, 135 Mass., 95 .
Knott V. Cunningham. 3 Sneed, 310
Kolb ▼. Bankhead, 18 Tex., 338 .
Kreger v. Osborne, 7 Blackf., 74
Kraus v. Thieben, 15 111. App., 483
Krng V. Ward, 77 111., 603 .
KroieTitz v. Eastern R Co., 143 Mass., 238
. 168
7, 14, 381
. 13H
474, 475
. 144
113, 153
. 190
. 503
. 103
. 13
. 143
267, 377, 378, 4«}5
. 120
. 554
207,463
. 218
. 263
493, 493
. 473
. 368
445, 448
. 456
103, 440
190, 191
338, 349
. 440
. 434
74, 76, 104
. 569
484, 499, 536, 583
. 235, 385
Labar ▼. Crane, 49 Mich., 561
Ladd V. Tudor. 8 Woodb. & M., 335
Ladrick ▼. Briggs, 105 Mass., 503
La IVambois v. Jackson, 8 Cow. (N. Y.), 689
Laird v. Davis, 7 Ala., 37 .
Laird v. Taylor, 66 Barb., 139 .
Lander t. Seaver, 33 Vt., 114 •
Lang V. Stole, 13 G&, 393 .
Lange v. Benedict, 73 N. Y., 13 . • . 184»
Langdon v. Potter, 13 Mass., 319
Langdon v. Bullock, 8 Ind., 341 .
Langmaid v. PeifFer, 7 Gray, 378
Laroche v. Washbrough, 3 T. R., 737
La Roe v. Rosser, 8 Mich., 537 .
Langley v. Warren, 3 N. Y., 337
Langhlin v. Clawson, 37 Pa. St., 330
Lawrence v. Hedger,. 3 Taunt., 14
Lawrence v. Martin, 33 Cal., 173
Lawrence v. Hagerman, 56 111., 68
Lawrence v. Beaubein, 3 Bailey, 630
Lavery v. Crooke, 53 Wis., 613 .
Lavender v. Hodgins, 33 Ark., 763
Lavina v. State, 63 Ga., 513
Lea V. White, 4 Sneed, 111
Lee V. Campbell, 4 Port.. 198
Lb Mason ▼. Dixon, Sir W. James, 173
Leach v. Church, 10 Ohio St., 149
Leever v. Hamill, 57 Ind., 423 .
188,
140, 142,
283,385
134, 138
444, 597
. 554
. 310
. 471
. Ill
197
143, 153, 153
313, 313
. 503
. 314
. 176
. 494
. 554
. 310
. 78
. 54
416, 640, 550
. 554
. 538
. 585
618, 519
. 16
. 554
. 3t)9
. . 554
886,363
lii
INDEX OF OABE^
Legalle ▼. Blaisdell, 184 Mass., 473
Leggett ▼. Blount, 2 Taylor, 128
Leggett V. Tollewey, 14 Exch., 801
Leigh V. Webb, 8 Esp., 165
Lemaister v. HuDter, Bright, 405
Leonard v. Stacy, 6 Mod., 140
Lerney v. Williams, 83 Ark., 166
Leddy v. Croesman, 108 Mass., 287
Leroy, etc., R'y Co. v. Anderson, 21 Pac. Rep., 588
Levy V. Shurman, 6 Ark., 182
Levy V. Brannan, 89 Cal., 485
Lewis V. Jones, 4 B. & C, 506 .
Lewis V. Rose, 6 Lans., 209
Lewis V. Reed, 18 M. & W., 834 .
Lewis V. Chapman, 16 N. Y., 369
Lewis V. Kahn, 5 N. Y. Sup. , 661
Lindsey v. Com., 2 Va. Cas., 845
Lindsey v. Larned, 17 Mass., 190
Lister v. Ferryman, L. R., 4 H. L., 521
Little V. Moore, 4 N. J. L., 74
Livingston v. Bishop, 1 Johns. (N. Y.), 290
Livingston v. Burroughs, 88 Mich., 511
Lloyd V. Harris, Peake's C, 281 .
Locke V. Gibbs, 4 Ired. (N. C), 42
Locker v. Holcomb, 4 Biug., 190 .
Loeb V. Weis, 64 Ind.. 2»5 .
Logan V. Jennings, 4 Rawle, 855
Logan V. Waytag, 57 Iowa, 107 .
Lombard v. Olins, 5 Gray, 8
Long V. Rogers, 19 Ala , 821
Lott V. Sweet, 83 Mich., 808
Look V. Dean, 108 Mass., 115
Louisville, etc., R'y Co. v. Hubbard, 18 N. E. Rep., 611
Louisville, etc., R'y Co. v. Cauley, 21 N. E. Rep., 546
Louisville, etc., R'v Co. v. Stommel, 25 N. E. Rep., 863
Louisville, etc., Kv Co. v. Hart, 21 N. E. Rep., 753
Love V. Wood, 55 Mich., 451
Lovejoy v. Murray,. 3 Wall. (U. S.), 1 .
Low V. Mum ford, 14 John., 426 .
Lowe V. Wartman, 47 N. J. L., 413 .
Lowry V. Irwin, 6 Rob. (La.), 192
Lowther V. Earl of Radnor, 8 East, 118
Lowenthal v. Strong, 90 III., 74
Lowenburg v. Rosenthal, 22 Pac. Rep., 601
Lucas V. Ix^cke, 11 W. Va., 81 .
Lunsford v. Deitrich, 5 So. Rep., 461 .
Lyman v. Bridge Co., 2 Aiken (Vt.), 255
Lyman v. Fiaser, 3 F. & F., 589
Lynch v. Railroad Co., 90 N. Y., 77 .
Lynch v. Met. El. R'y Co., 90 N. Y., 77
Lytton V. Baird, 95 Ind.. 349
Lyon V. Fox, Browne's App., 69
Lyon V. Hancock, 35 Cal., 373 •
• 461
• 14
. 453
. 12
.810
. 194
. 810
. 69
. 555
12, 282, 310, 462
. 445
. 437
. 103
. 238
. 873
. 338
7
. 277
. 141
440, 445, 448
. 807
. 476
. 366
. 249
. 568
. 603
. 579
. 845
. 453, 560
. 115, 121
68, 115, 117, 120, 180
. 555
. 555
. 559
. 660
. 481, 482
103, 481, 440, 445
. 369
880, 886, 363
144
147, 153, 154r
. 633
. 651»
. 189. 191
. 560
. 219
. 115
. 101
. 102, 22S
. 527
466, 616
M.
McBride v. McLaughlin, 5 Watts, 375
Me Brown v. Morris, 59 Cal., 65 . . •
McCall V. Cohen. 16 S. C, 445 .
McCall V. Corning, 1 Abb. (U. S.), 212
McCall V. McDowell. 1 Abb. (U. S.) C. C, 212
McCarthy v. De Armit, 99 Pa. St., 63
. 525
. 64
. 152
. 80»
825, 48.)
485. 5yi
INDEX OF CASES.
liii
McCarthy v. Kitchen, 59 Itid., 500
McCarthy v. Niskern, 22 Minn., 90
McCloughan v. Clayton, 8 K C. L., 478
McCInre v. State, 116 Ind.« 169 .
McConneil v. Hampton, 12 Johns., 284
McConnell v. Kennedy, 29 S. C, 180 .
McCormick v. Sisson, 7 Cow,, 715
McCormick ▼. Conway, 12 La. Ann., 53
McComas v. Haas, 107 lud., 512 .
McCready v. Quardian, etc., 9 Serg. & R., 94
MeCrell v. McDowell, Deady, 288
McDaniel v. Needham, 61 Tex., 269 .
McDonald v. Bovington, 4 T. R., 825 .
McDonald v. Rooke, 2 Bine. N. C, 219
McDonald v. Walker, 40 N. Y., 551 .
McOarble v. McGinley, 86 Ind., 588 .
McGarrahan v. Laress, 15 R. I., 802 .
McG^arrahan v. Lavere, 3 Atl. Rep., 692
McGee v. Shafer. 15 Tex., 198 .
McGuire v. Goodman, 81 111. Ap., 420
Mclntyre v. Levering, 148 Mass., 546
Mclntyre v. Raduns, 14 Jones & S., 123
Mclntyre v. Trumbull, 7 Johns. (N. Y.), 85
McKeller v. Cauch, 48 Ala., 836
McKinney v. Western Sta^^e Co.. 4 Iowa, 420
McKnown v. Hunter, 80 N. Y., 625
McLaren v. Birdaong, 24 Qa., 265
McLean V. Cook, 23 Wis., 864 ..
McLellan v. Cumb. Bank, 24 Me., 566
McLeod V. McLeod, 78 Ala., 42 .
McMahone V. Green, 84 Vt., 69 .
McNamara v. King, 2 Gil man. 482
McNamee v. Minke, 49 Md., 122
McNay v. Stratton, 9 Brad., 215 .
McNulty V. Walker, 64 Miss., 198; 1 South. Rep.
McNutt V. Livingston, 7 Smedes & M. (Miss.). 641
McPherson v. Runyon, 41 Minn., 524; 48 N. W. Rep.
McRea v. O'Neal, 2 Dev. (N. C), 166 .
McTeer v. Lebow, SoTenn., 121 .
McWilliams v. Bragg, 8 Wis., 424
McWilliams v. Hoban. 42 Md., 56
Mack V. Leedle. 42 N. W. Rep., 686 .
Magmer v. Renk, 65 Wis., 864
Magnay v. Burt, 5 Q. B., 881 (Dav. & Meriv.),
Maguire v. Hughes, 18 La. Ann., 281 .
Mahan v. Green, 84 Vt., 69
Maher v. Ashmead, 80 Pa. St., 844 •
Haloolmson v. Scott 56 Mich., 459
Malcom v. Spoor, 12 Mete., 279 . •
Malone v. Huston, 17 Neb., 107 .
Maione v. Murphy, 2 Kan., 250 . •
Mangold v. Thorp, 88 N. J. L., 184
Mann ▼. Dupont, 8 Wash., 81 . •
Malory v. Merrett, 17 Conn., 178 •
Maloney ▼. Doane, 15 La. Ann., 278 •
Manning v. Finn, 28 Neb., 511 . •
Marbourg v. Smith, 11 Kan., 554
Mason v. Ide, 80 Vt.. 697 .
Masters v. Deyo, 2 Wend. (N. Y.), 424
Marable v. Mayer, 78 Ga., 710 .
Marsh v. Smith, 49 111.. 896
Marshall v. Hosmer, 4 Mass. , 60 .
Marshall v. Bussard, Gilmer, 9 . • .
Marshall v. Boston & A. R. R., 146 Mass., 164
272,
584,
276, 880, 861,
55
465,
821, 578
. 498
. 877
. 596
545,549
88
458, 462
. 458
. 559
. 881
. 494
. 807
. 444
267, 828
. 529
16
. 101
. 212
. 440
. 275
466, 469
. 373
. 190
. 477
389
248, 247, 456, 457, 473
. 5^
168, 199
. 281
866, 560
86, 170, 172, 198, 195
. 498
. 292
. 282
281, 561
. 190
16,409
. 462
. 157
. 525
494,585
. 556
. 245
. 176
. 152
86, 170, 172, 198, 195
. 88
. 171
166,438
65
282, 462
134, 142
. 7,14
. 282
. 458
. 473
844, 862
. 190
278, 280
282, 462
485,494
. 190
7
. 887
892
276,
885,
76, 166,
281,
16,
liv
INDEX OF 0ASB8.
Kan
16
Otto
Harks v. Townsend, W N. Y., 500
Martin v. Marshall, Hob., 63
Martin v. Mayor, etc., of Brooklyn, 1 Hill
Martin v. Fabri^aa, 1 Smith, L. C, 340
Massey v. Johnson. 12 East, 67 .
Matthews v. Fiestel, 2 E. D. Smith, 90
Mathews v. Lyall, 6 McLean. 18
Maxwell v. Kennedy, 50 Wis.. 645
Mayer v. Hermann, 10 Blatchf., 256
Mayer v. Walter, 64 Pa. St. 283
Mead v. Haws, 7 Cow. (N. Y.), 382
Meidel v. Anthis, 71 III., 241
Melville v. Brown, 12 Mass., 82 .
Merest v. Harvey. 6 Taunt., 442 .
Merriam v. Mitchell, 13 Me., 439
Merriman v. Morgan, 7 Oreg., 68
Meyer v. Bohlflng, 44 Ind.« 238 .
Meyer v. Clark. 41 N. Y. S. Ct., 107
Michds V. Stork, 44 Mich., 2
Miles V. Kaigler, 10 Yerg. (Tenn.), 10
Miles V. Weston. 60 III., 801
Missouri, K & T. R'y Co. v. Weaver,
Milwaukee, etc., R R. Co. v. Ames, 1
Miliken v. Brown, 10 S. & R., 188
Miller v. Adams, 7 Lans., 133
Miller v. Finkle, 1 Park. C. C, 874
Miller v. Brown, 3 Mo., 127
Miller v. Grice, 2 Rich. L. (S. C). 27
Miller v. Milligan, 48 Barb., 30 .
Milne v. Wood. 5 C. & P., 587 .
Mitchison v. Cross. 58 111.. 866 .
Mitchell V. Wall, HI Mass., 492 .
Mitchell V. Rockland, 52 Me.. 118
Mitchell V. Jonkins, 5 Barn. & Adol..
Mitchell V. Williams, 11 M. & W., 205
Mitchell V. Millbank. 3 Tenn.. 199
Mims V. Dupont, 2 Browne (Pa.). 42
Mills V. McCoy, 4 Cow. (N. Y.). 406
Mizer v. McDonald. 25 Ark.. 38 .
Montjo v. Mont jo, 53 Hun (N. Y.), 145
Morgan v. Chester, 4 Conn., 887 .
Morgan v. Hughes. 2 T. R., 225 .
Moffat V. FiRher. 47 Iowa. 478
Morgans v. Bridges, 1 B. & A., 647
Morill V. Thurston, 46 Vt., 782 .
Morrow v. Wood, 35 Wis., 59
Moseley v. State, 23 Tex. A pp., 409
Morley v. Chase, 143 Mass.. 896 .
Morrison v. Lawrence, 98 Mass., 219
Moore v. Northern Pac. R. Co., 37 Minn., 147
Moore v. Sanborin, 42 Mo., 490 .
Moore v. Ryburn. 73 Tex., 85
Motes V. Bates, 80 Ala., 382
Mortimer v. Thomas, 23 La. Ann., 165
Monroe v. Maples, 1 Root (Conn.), 553
Montford v. Hughes, 3 E. D. Smith, 591
Montross v. Bradsby, 68 111., 185
Moshier v. Kitchel, 87 111., 19 .
Moulton V. Beecher, 8 Hun, lOO .
Moulton V. Bowker, 115 Mass.. 86
Mo wry v. Whipple. 8 R. L, 860 .
Moyle V. Drake, 141 Mass., 238 .
Mudbury v. Watson, 6 Met., 257
Mudrock v. Killips, 65 Wis., 622
(N. Y
594
170, 200, 302, 347
80
), 645 • • ! 219
. 483
• 90
. 390
. 133
. 524
212
r, 8, 163, 166, 860. 454
170, 172, 174, 1T5
. 524
90
. 525
. 247
. 368
. 527
. 71
105, 109
. 891
78, 79, 412
., 456 . • • .524
489 .... 521
90
200,208
. 130
466,467
. 307
338, 397
. 102
288. 479
205, 540, 597
. 219
262, 262, 881-383
. 828
. 506
281.352
452, 453
. 504
541
440, 444
828, 330, 358. 458
290, 291, 495
. 178
. 184
• 111
. 182
. 197
. 218. 219
257, 271, 276, 561
. 281, 816
512
290, 456, 467
. 325
. 861
. 892
. 638
. 668
889, 840, 368
. 212
247, 466, 584
. 860, 861
. 371
. 199
INDEX OF CABES.
Iv
Mullin ▼. Spangenberg, 113 HI., 142 .
Muller V. Brown, 138 Mass., 114 .
Murray v. Long, 1 Wend. (N. Y.). 46
Murray v. McLain. 2 Car. Law Rep., 186
Muse V. Vidal, C Munf., 27 .
Mure V. Kavo. 4 Taunt, 84
Murphy v. Martin, 58 Wis., 276; 17 N. W.
Murphy v. Larson, 77 111., 172 .
Murphy v. Moore (Pa.), 11 Atl. Rep., 065
Murphy v. Countess, 1 Har., 148
Manns v. Dupont, 1 Hare & W., Leading Cases, 5th ed., 249, 276 14, 500
Rep.,
608
810, 316, 828,
, 600
. 166
247,265
. 810
5
. 877
. 267
824, 511
335. 868
3^r
1 J
Nasrle v. Mattison, 84 Pa. St, 48
National Exchange Co. ▼. Drew, 2 Macq., 108
Neall ▼. Hart, 115 Pa. St, 347 .
Nebenzahl v. Townsend, 10 Daly, 282
Neild V. Burton, 49 Mich., 58
Nelson v. Danielson, 82 IlL, 545 . •
Netcleton ▼. Dinehart. 5 Cash., 548
Newton ▼. Lacklin, 77 111., 108 .
New Brnnswick & Canada R. R. v. Conybei
Neweil V. Downs, 8Blackf. (Ind.), 523
Newsman v. Carr, 2 Stark., 69
Newton v. Weaver, 18 R. I., 616
Newton ▼. Hatter, 2 Ld. Ray., 1208 .
Nicholson v. Coghill, 4 B. <fc C, 21 .
N. O. R. R. Co. V. Bailey, 40 Miss., 895
Norman v. Manciette, 1 Sawyer, 484 •
Norton v. Nye, 56 Me.. 211 .
Nor veil v. Roake. 7 B. & C, 404
Nowark ▼. Waller, 56 Hun, 467; 10 N. Y. Sup., 199
Nowell V. Tripp, 61 Me., 426
are, 9 H. L. Cas., 711
. 520
. 883
. 14»
848, 862
105, 109
. 585
. 54
484,494
. 883
281, 584
804. 476. 479
. 810
. 888
. 829. 461
. / . 383
. 492
. 190
. 491
. 485, 488
. 168
o.
O'Brien ▼. Barry, 106 Mass., 800
Oak V. Cleveland, 6 Hill (N. Y.), 844 .
O^ShauR^hnessy v. Baxter. 121 Mass., 515
Ocean S. S. Co. v, Williams, 69 Ga., 251
Odell V Schroeder, 58 III, 858 .
O'Driscoll ▼. McBumey, 2 Nott & McCord,
Ogg V. Lansing, 35 Iowa, 495
Okk v. Murdock, 25 W. Va., 139
Oliver v. Pate, 43 Ind.. 132
Olmstead v. Dolan, 6 N. Y. Sup., 130
Olmstead v. Partridge. 16 Gray, 883 .
Olsen V. Neal, 63 Iowa, 214
Orr V, Seller, 1 Penn., 445 .
Ousley T. Hardin, 23 111., 408 .
Outlaw V. Davis, 27 111., 467
Owsley V. Mont R. R. Co., 87 Ala., 560
Oystead v. Shedd, 12 Mass., 511 .
54
809,
166, 852. 862
. 831
176, 394
. 484
. 219
. 15
. 219
484,485
470, 584
94
815, 816, 817, 322
. 284
. 365
. 601
. 416
101, 884
• 86
Paddock v. Watts, 116 Ind., 156
Page V. Cushing, 88 Me., 528
Page V. Freeman, 19 Mo., 421
PaUmer ▼. Carroll, 24 N. H., 314
P.
207, 254, 255, 821, 468. 590
75, 165. 186, 241
I • • . . 445
> • • • • a04
Ivi
INDEX OF CA8S8.
Palmer v. Oakley, 2 Doug. (Mieh.), 483
Palmer v. Avery, 41 Barb. (N. Y.), 300
Palmer t. Richardson, 70 111., &45
Pangburn ▼. Bull, 1 Wend., 845 .
Pankett v. Livermore, 5 Clarke (Iowa), 277
Pan ton v. Williams, 2 Q. B., 169
Painter v, Ives, 4 Neb. , 122
Parker v. Farley, 10 Cush. (Mass.), 279 254, 288,
Parker ▼. Huntington, 2 Qray (58 Mass.), 124
Parker v. Langley, 10 Mod., 209 .
Parker v. Proctor, 2 Willes, 88« .
Parrot ▼. Fishwick, 9 East, 432 .
Pnstor V. Home Mach. Co., 51 Md., 290
r it ton ▼. Gurney* 17 Mass., 185 .
Patzock ▼. Von Gerichten, 10 Mo. App., 424
Parry v. State. 21 Tex., 746
Paraons ▼. Loyd> 8 Wils., 841
Parsons ▼. Harper, 16 Gratt. (Va.), 64
Patterson ▼. Crawford, 12 Ind.. 241
Patterson ▼. Prior, 18 Ind., 440 .
Patterson v. Gar lock, 89 Mich., 447
Payne v. Porter, Cro. Jac., 490 .
Payne v. Wyfle, 8 East, 814
Payson v. Cass well, 22 Me., 226
Parkhurst v. Mastellar, 57 Iowa, 474
Pearson t. Lemaiter, 5 Man. & Gr., 700
Peck V. Small, 85 Minn., 465
Peden v. Mail, 118 Ind., 560
Peck V. Chouteau, 91 Me., 188 .
Peck T. McLean, 86 Minn., 228 .
Peck V. Hptchkiss, 52 How. Pr., 226
Peigne v. Sutcliffe, 4 McCord (S. C), 887
People V. Liscomb, 60 N. Y., 559
Perkins v. Proctor, 2 Wils., 882 .
Pesterfield v. Vickers, 3 Coldw. (Tenn.), 208
Perchell v. Watson, 8 M. & W., 691
Peterson ▼. Haffner, 59 Ind., 180
Percival v. Jones, 2 Johns. Cas. (N. Y.), 49
Pettit V. Mercer, 8 B, Mon., 51 .
Petrie v. Lamont, 1 Car. ^ March., 96
Perrin v. Proctor. 2 Wils., 386 .
Perley v. Georgetown, 7 Gray (Mass.), 464
Pennsylvapia Co. v. Smith, 98 Ind., 42
People V. Adler, 8 Park. (N. Y.) Cr. Rep., 249
People V. Burt, 51 Mich., 199
People V. McKinney, 10 Mich., 54
People V. Nowak, 5 N. Y., 240 .
People V. Schenck, 2 Johns.. 479
People V. Stone, 16 Cal., 869
People V. Thompson, 84 Cal., 671
People V. Warren. 5 Hill, 440 .
People V. Wheeler, 78 Cal., 252 .
Philip V. Stearns, 4 Gray, 105 .
Philip V. Kalamazoo, 53 Mich., 88
Phillips V. Trull, 11 Johns., 486 .
Phillips V. Bonham, 16 La. Ann., 387
Phillips V. Fadden, 125 Mass., 198
Phi . k. R. Co. V. Quigly, 21 How. (U. S.), 202
Phil. R. R. Co. V. Derby, 14 How., 468
Pierce v. Street. 8 B. & Ad., 897
Pierce v. Thompson, 6 Pick., 192
Pigott V. Lilly. 55 Mich., 150 .
. 144
. 284
. 310
. 16
. 588
. 277, 278
850, 492, 494
286, 287, 328, 836, 887, 338.
361,402
5, 6, 254, 287, 299, 334,
838, 401, 474
. 348
. 80
. 461
. 383
. 371
. 142, 599
. 340
• 209, 493
. 484, 493
. 230, 281
. 230, 231
. 470
. 363
. 477
6, 284, 296, 299
. 494
. 508
. 628
464, 470
240, 284, 290! 470
. 217
. 348
. 10<*
. 126
. 125, 127
. 219
. 367
. 106
168, 169, 160, 162, 16:^
. 53
. 893
. 159
219, 220» 2n
. 559
. 197
. 171
. 551
. 437
• • o6
12
. 13
. 171, 176
78
. 287
284, 292, 294
71, 83, 86, 197
. 310
877, 488, 489, 600
217, 88^, 883
. 894
. 84.'^
58»287
. 106. 109
INDEX* OF 0A6B8.
Ivii
Pikev. Carter, 8 Bing.. 78 .
Pike ▼. Hanson, 9 N. H., 491
Pindar ▼. Wadsworth, 2 East, 154
Piper V. Pearson, 2 Grav (Mass.), 120
Pippett V. Hearn. 5 B. & Aid., 684
Pixley T. Reed, 26 Minn., 80
Planters' Bank v. Massey, 2 Heisk., 860
Plat V. Miles, 1 Edm., 280 .
Plath V. Braunsdorff, 40 Wis., 107
Pomeroj ▼. Villavosa, 81 111. App., 090
Pooler V. Reed, 78 Me., 129
Pope V. Pollock, 46 Ohio. 367 : 21 N. R
Porter v. Knight, 19 N. W. Rep., 282
Potter T. Seale, 8 Cal., 224
Potter V. Swindle, 77 Ga., 419 .
Pow V. Becker, 8 Ind., 475 .
Powell v. Hodgetts, 2 Car. & P., 482
Powell V. Gott, 18 Mo., 458
Pratt V. Farrar, 10 Allen, 521
PraU V. Gardner, 2 Cush. (Mass.), 68
Pratt V. Putnam, 18 Mass., 868 .
Pratt V. Page, 18 Wis., 887
Prather v. Lexington, 18 B. Mon. (Ky
Prell V. McDonald, 7 Kans., 426
Prentiss t. Shaw, 56 Me., 427
Price V. Horwood, 8 Camp., 108
Price ▼. Bailey, 66 111., 48 .
Price V. Seely, 10 Clark & Fin., 28
Primas v. State, 1 Tex. App., 507
Prince V. Thomas, 11 Conn., 472
Pritchett v. Boevey, 1 Cro. & M., 776
Pniden t. Allen, 28 Pick., 184 .
Prosser v. Coots, 50 Mich., 262 .
Pollen ▼. Glidden, 68 Ma, 559 .
Pungbum v. Bull, 1 Wend., 845
Puroell V. MacNamara, 9 East, 861 ; 1
Purson ▼. Gale, 8 Vt., 509 .
Putnam ▼. Man, 8 Wend., 202 •
Rep.
),559
,856
Campb., 199
147, 158, 154
66, 60
. 410
188, 185, 148, 150, 154
. 477
. 852
. 212
. 488
• 248, 501
• 258,268
. 484
16, 409
. 579
12,800
. 519
. 81
. 877
. 891
. 489
180, 140, 156
. 212
. 888
. 219
. 485
. 518, 515
. 77, 172
. 585
88,484
. 289
. 168
. 484
. 455
190
465, 511, 512
247
10,18,240,852,461
. 101
. 89
R
Baina v. Simpson, 5 Tex., 495
Randall v. Brigham, 7 WalL (U. a), 528
Ramsey v. Badfer, 67 Mo., 476
Railroad Co. ▼. Cobb, 68 111., 58 .
Railroad Co. ▼. Slusser, 19 Ohio St., 157
Railroad Co. t. Quigley, 21 How., 218
Railroad Ca ▼. Arms, 91 U. &, 489
Railroad Co. v. Bailey, 40 Miss., 895
Railroad Ca v. Blocher, 27 Md., 277
Railroad Co. ▼. Hammer, 72 lU., 858
Railroad Co. ▼. Rice, 10 Kan., 484
Railroad Co. ▼. Gordon, 70 Tex., 90
Ratcliffe v. Barton, 8 B. & P., 228
RawBon ▼. Morse, 4 Pick., 127
Ravenna v. Mackintosh, 2 B. & C, 698
Ray V. Tnbbs, 60 Vt, 688 .
Read v. Vaughn. 15 Mo., 151
Read v. Sutton. 2 Cush., 115
Read v. Marshall, 8 Mod., 842
Ready v. Mayor, etc.. 6 Ala., 827
Bedelaheimer ▼. Miller, 107 Ind., 486
. 140
125, 188, 148
. 168
. 520
. 524
. 524
. 524
. 624
. 524
. 524
. 524
. 548
90
. 417
815, 461, 511
. 106
. 145
. 455
. 889
. 219
. C59
Iviii
INDEX OF CASES.
Reed ▼. Rice, 3 J. J. Marsh., 44 •
Reed v. Taylor, 4 Taunt., 616 .
Reed ▼. Home Sav. Bk., 180 Mass., 443
Reg. V. Fitzgerald, 1 Salk., 401
Reg. V. Whitehead, 2 Moody, 181
Reg. ▼. Pickering, 2 Barn. & Adol., 267
Reg. V. Mitchell, Cox*8 Criminal Cases, 93
Reg. ▼. Allen, 1 Best & S., 850 .
Regina ▼. Baker, 25 £ng. L. <&; E., 589
Regina v. Pindar, 24 L. J. (N. S.), Exch., 148
Reid V. Hord, N. & McC. (S. C), 168
Renck v. .McGregor, 32 N. J. L., 70
Religh V. Cook, 80 Texas, 438 .
Henoe v. Wilson, 49 111., 96
Revis V. Smith, 18 C. B., 126
Rex V. Collector of C, 2 M. & a, 225
Rex V. Price, 6 East, 823 .
Rex V. Wood fall, 5 Burr., 2667 .
Rex V. Topham, 4 T. R., 127
Rex V. Wright, 2 Strange, 915 .
Rex T. Choate, Lofft., 78 .
Rex V. Clark, 2 Burr., 1362 "
Rex V. Gourley, 7 B. <&; C, 669 .
Rex V. Turlington, 2 Burr., 1115
Reynolds v. Kennedy. 1 Wils., 232
Reynolds v. Corp., 3 Cai., 267 .
Reynolds v. Matthews, 2 Eng. Jur., 989
Reynolds v. Orvis, 7 Cow., 269 .
Reynolds v. Stansbury. 20 Ohio, 344
RicKards v. Foulke, 8* Ohio, 62 ,
Richey v. McBean, 17 III., 63
Richey v. Davis, 11 Iowa, 124
Ricord v. Central Pac. R. Co., 15Nev., 167
Rides V. Chick, 59 N. H., 50
Rideout v. Knox, 148 Mass., 368 .
Ripley ▼. McBarron, 125 Mass., 272
Roberto v. Graham, 6 Wall.. 597
Robinson v. Spearman, 3 B. AC. 498
Robinson v. Stewart, 10 N. Y., 194
Robinson v. Merchant, 5 L. J. (N. C),
Roder^ris v. E. R. S. Bank, 63 N. Y.,
Roderigues v. Tadmire, 2 Esp., 721
Rogers v. Jones, 8 B. & C, 409 .
Rogers v. Ilscombe, 2 Esp. Dig., N. P,
Rogers v. MuUiner, 6 Wend. (N. Y.), 597
Rohan v. Sawin, 5 Cush., 281
Romanes* Case, 1 Utah, 28 .
Rowe V. Moses, 9 Rich. Law, 428
Root V. Chandler, 10 Wend. (N. Y.), 110
Ross V. Campbell, 19 Hun (N. Y.), 615
Roes V. Grome, 26 III., 259 .
Ross V. Innis, 35 111., 487 .. . 258, 290,
Ross V. Leggett, 61 Mich., 445 .
Ross V. Norman, 5 Exch., 859 .
Roth V. Smith, 41 lU., 314 .
Roeenblat's Case, 51 Cal„ 285 .
Roesiter v. Peck, 3 Gray (Mass.). 639 .
Rosenkrans et al. v. Baker, 115 lU., 831
Rosen v. Stein. 61 Hun, 179
Rowland v. Samuels, 11 Q. B., 89
Rowland v. Veale, Cowp.. 18 .
Rover v. Webster, 2 Clarke. 502 .
Rowley V. Rice, 11 Mete, 337 .
Roy V. Goings, 112 III., 656 . . 259, 260. 311
185
460
C, 38
223.
14,
258,
545,
226,
fC, 195. 196,
381, 382. 883, 885,
197,
370.
115,
115,
115, 120,
287, 288, 297,
148,
144.
290,
881, 382, 383,
677, 678, 579, 580,
210,
228, 278, 893, 466»
804, 465, 467,
159,
166.
818, 825, 688, 668^ 679,
19T
14
524
130
284
889
839
839
71
124
14*^
825
296
540
16
898
i;0
508
6<)8
124
124
120
120
124
461
178
61
168
145
294
284
473
88S
190
289
885
418
80
248
367
180
479
90
476
163
877
86
498
103
190
809
682
212
829
509
87
144
613
264
495
418
810
439
694
INDEX OF 0A8BB.
lix
Bussell ▼. Corne, 2 Ld. Bay., 1208
Russell ▼. Fobyan, 84 N. H., 218
Rnasell v. Lucas, 1 Car. & P., 158
Rutherford v. Holmes, 66 N. Y., 870
888
102
61
201
S.
Sage V. Haines, 41 N. W. Rep., 866 •
Sales V. Brifcga, 4 Met. 421
Salomon v. Percival, 8 Cro., 196 • •
Sandback v. Thomas, 1 Stark., 806
Sample ▼. Bradwell, 87 III., 618 .
Salt Lake City t. HoUister, 118 U. S., 256
Samuel v, Payne, Doug., 859
Sauds V. Child, 8 Lev., 852 .
Sangster v. Com,, 17 Grat, 131 .
Sartwell v. Parker. 14 Mass., 405; 5 N. E. Rep.,
Sapping ▼. Walson, 50 Mo., 88 •
Sanderson ▼. Caldwell, 2 Aik., 195
Savacool v. Boughton, 5 Wend., 172 •
Savafi;e v. Brewer, 16 Pick., 453 •
Saville v. Roberts, 1 Ld. Ray., 874
Saville v. Sweeney, 4 B. <fc Ad., 528 ,
Saville V. Roberts, 1 Salk., 14 .
Sayles ▼. Briggs, 4 Mete, 421
Sawyer v. Loomis, 8 Sup. (T. & C), 898
Sandorer v. Wame, 2 Camp., 270
Scott T. Simpson, 1 Sandf., 601 .
Scott V. Ely, 4 Wend. (N. Y.), 555
Scott V. Stansfield, 8 L. R. Ex., 220 .
Scott V. Wakem, 8 F. & F., 328 .
Scott V. Shelor, 28 Gratt. (Va.), 891 .
Scott V. Fletcher, 1 Overt. (Tenn.). 488
SchofR^e V. Gordon, 29 Biinn., 867
Schofield V. Ferrers, 47 Pa. St., 194 •
Scotten V. Longfellow, 40 Ind., 28 •
Schoonover v. Meyers, 28 III., 808
Schippel V. Norton, 88 Kan., 567
Scheible v. E^irbarn, 1 B. <fc P., 888 .
Schlenecker v. Risley, 8 Scam. (111.), 488
Scripp V. Riley, 88 Mich., 10
Searll V. McCracken, 16 How. Pr., 262
Sears v. Hathaway, 12 Cal., 277 .
SeaTer v. Piei-ce, 42 Vt., 235
Seay v. Greenwood, 21 Ala., 491 .
Secor v. Babcock, 2 Johns. (N. Y.), 208
Seekell v. Noonan. 48 N. W. Rep., 90
Senegal v. Smith, 9 Robb., 418 .
Sessions v. Johnson, 95 U. S., 847
Sef»ums V. Botts, 84 Tex., 834
Seward v. Jackson. 8 Cow. (N. Y.), 406
Severenoe v. Judkins, 78 Me., 876
Sexon V. Hoover (Ind.), 27 N. E. Rep., 105
Sharp V. Johnson, 76 Mo., 660 .
Sharp V. Sample, 25 Pa. St, 275 .
Sliattuck V. Bill, 142 Mass., 56 .
Shack V. McChesney, 4 Yeatee, 507
Shagett V. Clipson, 8 East, 328 .
Shanley v. Wells, 71 HI., 78
Shaw V. Coffin, 58 Me., 254
Sherman v. Da1rymple« 19 Mich., 239
Sherman v. Dutch, 16 III., 283 .
Sherwin v. SwindaU, 12 M. & W., 788
807
885,
68,
.
276, 805, 806,
• •
188, 152,
6, 18,
247,
851, 454, 455, 456)
810,
288,
831,
120,
807,
844, 864, 524,
580,
882, 844, 852,
288,290,
212, 213.
77,
81, 807,
558
828
102
491
hO
217
179
394
191
5(>1
310
440
168
829
492
889
45»
494
473
173
290
174
144
180
461
46&
212
281
294
480
565
477
484
604
347
361
190
5
863
558
63
439
155
554
366
528
462
578
215
10
178
308
106
433
625
237
IVPBZ OF CAS1BS.
Sherburne ▼. Rodman, 61 Wis., 474
Sheldon y. Ki^be, 8 Conn., 214 •
Sheldon v. Carpenter, 4 N. Y., 579
She waiter v. Bergman, 123 Ind., 1S5
Silvia V. Ely, 3 Watts & S., 420 .
Simpson t. Hornbeck, 3 Lans., 53
Sinclair v. Murphy, 14 Mich., 392
Sinclair v. Eldred, 4 Taunt., 7 .
Sisk V. Mathis. 11 La. Ann., 419 .
Skidmore v. Bricker, 77 HI., 194
Sleight V. OKle, 4 E. D. Smith (N. Y.). 445
Slocomb y. Thatcher, 20 Mich., 52
Slomer v. People, 25 111., 70
Siowhall V. Anson, ComfaL, 116 .
Small V. Gray, 2 C. & P., 605
Small V. Danville, 51 Me., &59 .
Smith V. Bouchier, 2 Str., 993 .
Smith V. Brookes, 1 Maas.. 76
Smith V. Cranshaw, Sir St. Jones, 93
Smith ▼. Ege, 52 Penn. St. 419 .
Smith V. Birmingham 6. Co., 1 Ad. & El., 526
Smith V. Austin (Mich.), 13 N. W. Rep., 593
Smith ▼. Hall, 2 Mod.. 31 .
Smith ▼. Judkins, 60 N. H., 127 .
Smith ▼. Keal, 9 Q. B. Div., 340
Smith ▼. Morse, 148 Mass., 407 .
Smith ▼. ?eabody, 116 Mass., 262
Smith V. Shakleford, 1 Nott & M. (S. C), 36
Smith V. Smith, 20 Hun, 555
Smith V. McDonald, 3 Esp., 7
Smith ▼. Hyndman, 64 Mass., 554
Smith V. Crocker, Cro. Cor., 512
Smith ▼. State, 7 Humph., 43
Smith V. State, 21 Neb., 552
Smith V. Tates, 106 Mass.» 265
Smith v. Smith, 36 Hun, 576
Smith y. Zent, 58Ind., 62 .
Snedicor y. Davis, 17 Ala., 472
Snydacker v. Brosse, 51 111., 857
Sommer v. Wilt, 4 S, & R , 20 .
Sonnebom v. Stewart 98 U. S., 187
Sorenson v. Dundas, 50 Wis., 335
Soule v. Winston, 66 Me., 447 .
South wick y. lilstes. 7 Cush., 385
Spain V. Howe, 25 Wis., 625
Spalding y. Lowe. 56 Mich., 366 •
Spear v. Hiles, 67 Wis., 350
Speck y. Judson, 63 Me., 207
Spengler v. Davy, 15 Gratt, 381
Sporr y. Spooner, 12 Met, 281 •
Sprague y. Bircbard, 1 Wis., 357
Spring y. Besore, 12 B. Mon., 551
Squire v. Goold, 14 Wend., 159 .
State y. Blackwell, 9 Ala.« 79
State y. Farist, 23 Miss., 483
State v. Freeman, 86 N. C, 583 .
Sute y. Haskett, 2 Hill (S, C), 95
Stote V. Holcomb, 86 AIo., 371 .
State y. Daniels, 32 Mo., 558
State y. Jones, 88 N. C, 671
State y. Lewis, 22 N. J. L., 564 .
State V. Mahone, 3 Harr., 568
State y. Mix. 15 Mo., 153
State y. McNally, 34 Mo., 210 •
276^
477,
282, 810, 462, 471,
808,
248,868,
440, 444, 445^
159,
543,
580
448
495
528
213
200
433
491
458
687
492
48H
187, 188, 204
141
451
2\M
22,
• 1 io
290,863
. 881
267, 578
. lOi
. 19(»
. 215
. 239
116, 167
281, 838
. 16
. 271
. 804
. 867
. 56
93
. 116
847
580,685
. 190
101, 801
. 810
281,495
. 485
. 810
. 892
. 243
243, 357, 864
547, 591, 592, 605
277, 278
53,477
55,489
. 199
298,299
. 410
. 838
. 145
• 88
. 338
. 82
• 379
. 67
. 145
. 76
. 669
• 156
INDEX OF GASB8.
Ixi
state ▼. Moore, 19 Mo., 869
State ▼. McNeill. 3 Hawks. 188 .
State V. Nutting, 89 Me., 859
State ▼. Pendergrass, 2 Dev. & Bat, 865
Stote V. Robbina. 66 Me., 824
SUte V. Primm, 61 Mo., 166
State ▼. Shilling, 10 Iowa, 106 .
State ▼. 8inioD9, 82 Minn., 540 .
State ▼. Stalcup, 8 Ired., 50
State V. Weed, 1 Foster, 262
Stahl V. O^Mallev, 89 Wis.. 828 .
Stambouse t. Ejiiot, 6 T. R., 815
Stanton v. Hart, 27 Mich.. 539 .
Stanabnry ▼. Fogle, 37 Md., 869 .
Stancliff 7. Palmeter, 18 Ind., 321
Starling T. Adams, 3 Day, 411 .
Stanoel v. Cleveland, 64 Tex., 660
Stampofski v. Steffens, 79 111., 303
Staunton v. Seymour, 5 McLean, 267
Stan wood ▼. Wbitmore, 63 Me., 209 .
Stacy ▼. Publishing Ck>., 68 Me., 279 .
Stevens v. Farrett, 27 Me., 267 .
Stevens ▼. Railroad Co., 10 Exch., 851
Stevens v. Sampson, 49 L. J. (C. L.), 120
Steadqaan y. Crane, 11 Met, 295
Stiwart V. Hawley, 21 Wend. (N. Y.), 552
Stewart ▼. Madden, 53 Ind., 51 .
Stewart ▼. New Orleans, 9 La. Ann., 461
Stewart v. Martin, 16 Vt, 897 .
Stewart v. Sonnebom, 98 U. S., 187 . 265, 276,
277,
189, 190
. 838
Stewart v. Thompson, 51 Pa. St, 185 .
St Jobnsbqry & L. C. R. Co. v. Hunt, 59 Vt, 294
Slensrud v. Dalamater, 56 Mich«, 144 .
Stone V. Crockei:, 41 Mass., 81 . 7, 10, 13, 14, 247,
Stone V. Carter, 13 Gray, 575
Stcme V. Dickinson, 5 Allen (Mass.), 29
Stone Y. Graves, 8 Ma, 148
Stone V. Stevens, 12 Conn., 219 .
Stone V. Swift, 4 Pick.. 389 ....
Strambaugh v. HoUanbaugh, 10 Serg. & R., 857
Strans v. Young, 37 Md., 282
Stoyel V. Lawreace, 8 Day (Conn.), 1 •
Straut V. Gpoch, 8 Greenl.. 126 .
Steuer v. State, 59 Wis.. 472
Strofer v. Gates, 2 B. Mon. (Ky.), 453
Staff T. Helmes, 48 Mo., 89
Stranger v. Whitehead, 12 Wend. (N. Y,), 64
Stoff V. Smith, 71 Pa. St. 285
Sagg V. Pool, 2 Stew. & P. (Ala.). 196
Sutherland ▼. Ingalls, 63 Mich., 620 .
Sutton V. Johnstone, 1 T. R. (Dum. & £.), 493 (Lord
Sutton ▼. Clarke, 6 Taunt, 29 .
Satton V. Ander«on, 108 Pa. St., 151 •
Swenagaard ▼. Davis, 33 Minn., 368 •
Swart V. Kimball, 43 Mich., 443
Swartwout v. Dickelman, 12 Hun, 358
Swithin T. Yiencent, 2 Wils., 227
Swain v. Stafford. 3 Ired. (N. C), 289
Swift V. Stone, 4 Pick., 393
Sykes v. Dunbar, 1 Campb., 202, n. .
Sykes v. Johnson, 16 2tfass., 389 •
Symm v. Fuser, 8 F. & F., 859 •
. 340
. Ill
. 289
. 889
. 839
. 270
. 73
. 171, 176
. 199
197
810, 852, 511
. 368
. 361
. 392
. 456,457
. 480
. 485
. 498
. 524
. 310
. 243
. 237, 238
90
! 152, 158
484, 580,604
. 219
. 440
278, 281, 282, 881, 882
888, 495, 496, 546.
• ■ . ■ Ot/4
• • . . 28o
.... 588
277, 278, 281, 282, 283,
290, 806, 881, 383, 461
441
499, 440, 443
. 140, 157
. 281
. 310
. 366
817, 456, 462, 584
. 101
. 61
. 379
. 391
. 891
. 484
. 496, 546
. 308
105, 108, 109
Mansfield) 265, 277,
278
. 808
. 462
. 852, 363
. 483, 551
. 849
. 390
. 265
. 815
10, 240, 452, 461
. 106
. 120
bdi
INDEX OF OASES.
T.
Taber ▼. Hutson, 6 Ind., 823 • ' •
Tarltoti V. Fisher, 3 Doug., 671 .
Taylor ▼. Jaques, 106 Mass., 291 .
Taylor v. Strong, 8 Wend., 384 .
Taylor ▼. Trask, 7 Cow., 247
Taylor v. Williams, 2 B. & Ad., 845 .
Teagarden v. Graham, 31 Ind., 422
Teagarden v. Hetfield, 11 Ind., 522 •
Teague v. Wilker, 3 McCord, 461
Teft V. Ashbaugh, 13 111., 602 .
Thaule v. Krekeler, 81 N. Y., 428
Thomas V. Ramsey, 6 John., 82 .
Thomas v. Graffenreid, 2 Nott & McCord,
Thomas v. Russell, 9 Ex., 764 .
Thompson v, Ellsworth, 39 Mich., 719
Thompson ▼. Beacon V. R. Co. (Conn.), 16
Thompson v, Lumley. 50 Abb, Pr., 105
Thompson v. De Graffenried, 2 N. & M.,
Thompson y. De Motte, 9 Abb. Pr. (N. Y.>
Thompson ▼. Mussey, 3 Greenl., 305 .
Thompson v. Farr, 1 Spears, 93 . •
Tbrustou V. Wright, 77 Mich., 96
Tilley v. Dawson, 65 Mass., 248 . •
Tiilotson ▼. Warner, 69 Mass., 574 •
Tomlinson v. Warner, 9 Ohio, 103 ,
Tooley's Case. 13 Ld. Ray., 1296 .
Tracy v. Williams, 4 Conn., 107 .
Travis v. Smilh, 1 Pa. St., 234 .
Trevor v. Trevor, 1 H. L. Cas., 263 •
Trip V. Thomas, 5 B. & C„ 427 .
Trish V. Newell, 62 Dl., 196
Truesdell v. Combs, 33 Ohio St., 186 •
Tucker v. Harris, 13 Ga., 1
Tucker v. Rochester, 7 Wend, (N. Y.X 854
Tucker ▼. Jerris, 75 Me., 184
Tunnel ▼. Watson, 2 Munf., 283 .
Turner v. Austin, 16 Mass., 181 .
Turner v. Turner, Gk)w, 50
Turner v. Walker, 3 Gill & J. (Md.), 877
Turner ▼. Hitchcock, 20 Iowa, 310
Turner v. Telgate, 1 Lev.. 95
Turner v. Carter, 1 Head, 520
Turner v. Phoenix Ins. Co., 55 Mich., 236
Turnpike Co. ▼. Boone, 45 Md., 344 •
Twitchell v. Shaw, 10 Cush., 46 .
Tyler v. Pomeroy, 8 Allen (Mass.), 480
Tyson v. Ewing, 8 J. J. Marsh. (Ky.), 186
148
Atl. Rep.,
143
243
554
. 537
. 170
. 160
71. 197
93, 159, 161, 162
. 282
. 197
. 646
. 838
. 80
94, 277, 378
. 369
. 453
. 487
. 485,493
. 283
. 313
• 849,363
• 861, 453
. 491, 495
. 554
. 341
. 147
. 455
. 53
. 78
. 151
383, 463, 560
. 473
. ,491
. 569
. 142
. 144
. 219
. 108, 105
. 554
. 212
347, 456, 461, 473
381, 293, 310
. 440
. 493
. 504
. 564
. 525
• 169
• 333
• 530
IT.
nimer v. Land, 1 Greenl., 135 . • • •
Underwood v. People, 32 Mich., 1 • • •
Underwood v. Robinson, 106 Mass., 396
Union Bank v. Geary, 5 Pet., 98 . . .
United Society v. Underwood, 11 Bush (Ky.), 365
United Slates v. Meagher (Tex.). 37 Fed. Rep., 879
United States v. King, 34 Fed. Rep., 302 .
United States v. RuggleB, 5 Mason, 192
United States v. Shoemaker. 2 MfLean, 114
United States v. Jenkins, 41 N. W. Rep., 597
» . . 14
. 123, 124
, 168, 171, 175
. 313
. 440
. 389
. 248
. 249
. 888,339
. 655
INDEX OF CASIEB,
Ixiii
V.
Vance t. E. R'y, 83 N. J. L, 884
Vanderveer v. Mattocks, 8 Md., 470 .
Vanduzor v. Linderman, 10 Johns., 106
Van Dusen ▼. Newcomer. 40 Mich., 90 115, 116
Van Schaick t. Sigel, 60 How. Pr., 122
Tan Voorbees ▼. Leonard, 1 N. Y. Sup. Court
Van Sickle v. Brown, 68 Mo., 627
Vaughn ▼. Ck>ngdon, 56 Vt, 111
Vaun V. McCreary, 77 Cal., 474 .
Venefra ▼. Johnson, 10 Bing., 801
Veneman t. Jones, 118 Ind., 41 .
Victor M. & M. Co. ▼. Justice's Court
Vigent ▼. Scully, 85 111. App., 44
ViUey v. Jarreau, 88 La. Ann., 292
Vinal V. Core, 18 W. Va., 1
Vincent v. Morrison, Breese (111.), 227
Virgin ▼. Coffin, 8 Story, 1 .
Virginia & M. L. N. Co. ▼. United States, Taney,
Vrcdenburgh ▼. Hendricks, 17 Barb., 179
Voltz ▼. Blackmar, 64 N. Y., 440
(V.
. 881,
• •
118, 119, 120,
. & d), 148
4 West a Bep., 299
288,290,
418'
888, 884, 625
. 197
7
121, 484, 494
. 190
. 281
. 290
184, 153, 155
. 818
. 828
82, 211, 212
. 146
. 440
. 501
804, 397, 461
. 554
. 281
. 894
. 10^
. 525
Wade V. Walden, 28 111., 425
Wagener v. Bill, 19 Barb., 821 .
Waleley ▼. Hart, 6 Binn. (Pa.). 816
Walter ▼. Sample, 25 Pa. St.. 275
Walker v. Camp (Iowa). 19 N. W. Rep., 802
Walker ▼. Martin, 43 HI., 508
Walker ▼. State, 25 Tex. App., 448
Walker v. S. R R'y, L. R., 5 C. P., 640
Walker t. Pittman, 108 Ind., 841
Walker v. Smith, 1 Wash, a C, 152
Warfleld ▼. Walter. 11 Gill & J. (Md.), 80
Watkina ▼. Lee, 5 M. & W., 270
Watkins ▼. Page, 2 Wis.. 92
Watkina ▼. Wallace, 19 Mich., 57
Warbourg t. Smith, 11 Kan., 554
Warden ▼. Bailey, Taunt., 67
Warwick ▼. Foulkee, 12 M. & W., 507
Wesson ▼. Mitchell. 18 Iowa, 158
Ward ▼. Brampeton, 3 Lev., 862
Walser ▼. Thies, 56 Mo., 89
Watts ▼. Clegg, 48 Ala., 561
Wancer ▼. Bright, 52 111.. 85
Watere ▼. Silly, 4 Pick., 145
Wahl ▼. Walton, 80 Minn., 806
Wallace v. Alpine, 1 Campb., 204
Wallace v. State, 28 Ark., 581 .
Warder ▼. Enslen, 14 Pac. Rep., 874
Warner v. Biddeford, 4 C. B., 180
Warner ▼. Shed, 10 Johns., 138 .
Weaver ▼. Devendorf. 2 Denio (N. Y.), 117
Wisaver ▼. Page, 6 Cal., 681
Webb ▼. Daggett, 2 Barb.. 12 .
Webb V. Hearne. 1 Boss. & Pull., 281
Webber ▼. Gay, 24 Wend., 4b5 .
Webber v. Nicholas, Ry. & M., 417
Webster ▼. Drink water, 5 Greenl. R., 276
Wiidman ▼. Kohr, 18 Serg. & R., 17 •
858,
281, 467
. 890
. 197
810, 578
. 267
50% 681, 545, 549
. 874
. 882,. 884
456, 457, 470
. 529
5
829, 852, 458
. 199
. 242
. 881
. 282
. 498
• 156
. 867
. 868
452,458
. 494
417, 481
. 72
10, 461
. 480
• 558
. 57
169, 172
140
496, 528
. 248
. 476
171, 176
. 491
• 281
• 418
Ixiv
INDEX OF CASES.
Weinberg y. Conover, 4 Wis., 808 . . • •
Weinberger ▼. Shelly, 6 W. & S.. 886 .
Weinzorpflin v. The State, 7 Blackf., 186 .
Wertheim v. Alt«chuler, 18 N. W. Rep., 107
Welch V. Cochrane, 63 N. Y., 181
Welddes v. Edeell, McLean (U. S. C. C), 866 .
Weller v. Baker, 2 Wils., 4t8
Wells V. Parsons, 8 Harr. (Del.), 505 .
Wells V. Jackson, 3 Munf. (Va.), 458 .
West V. Wheeler, 49 Mich., 505 " .
West V. Shockley, 4 Harring. , 287 . . • •
West V. Smallwood, 3 M. & W.. 418 .
West V. Hayes (Ind.), 8 N. E. Rep., 982 .. •
Wethenden v. Enibden, 1 Campb., 295
Western News Ck). v. Wilmarth, 88 Kan., 510 .
Whalen ▼. C, R. I. & P. R. R Co., 89 N. W. R^, 894
Whaley v. Pepper, 7 C. & P., 506
Wheeler ▼. Whiting, 9 C. & P., 262 .
Wheeler v. Nesbitt, 24 How. (U. S.), 544 . 381, 282,
Wheeler & W. Mfg. Co. v. Boyce, 86 Kan., 850 101, 228,
Wheless v. Sec. Nat. Bk., 1 Baxt. (Tenn.), 469
Whipple V. Fuller, 11 Conn., 582
Whipple V. Mfg. Co., 2 Story, 661
Whitaker v. Wisbey, 9 Eng. L. & Eq., 457
White V. Carr, 71 Me. 555 .
White ▼. Dingley, 4 Mass., 485 .
White ▼. Phillipston, 10 Met. (Mass.), 108
White V. Beck (Iowa), 19 N. W. Rep., 872
White V. Philbrick. 5 Me., 147 .
White V. Ray, 25 Mass., 467
White V. Tucker, 16 Ohio St., 468
Whiting V. Johnson, 6 Gray, 246
Whitney v. Peckham, 15 Mass., 248 .
Whitney v. Farrar, 51 Me., 4l8 .
Whitney v. Turner, 1 Scam. (III.). 258
WMtfield V. S. E. R'y, E., B. & E., 115
Whitfield v. Westbrook. 40 Miss., 811
Wicks V. Fen than, 4 T, R., 247 .
Wicker v. Hotchkiss, 62 III., 107
Willis V. Miller, 29 Fed. Rep., 288
Williams v. Van Meter, 8 Mo., 860 .
Williams ▼. Gowen, 14 Me., 362 .
Williams v. Eickenbury, 34 N. W. Rep., 560
Williams v. Planters' Ins. Co., 57 Miss., 759
Williams v. Beaumont, 10 Bing., 270 .
Williams ▼. Smith, 108 E. C. L.. 596 .
Williams v. Jones, Ca. Temp. Hardwicke, 801
Williams v. Powell, 101 Mass., 467 .
Williams v. Taylor, 6 Bing., 183
Wilkes V. Lorch, 2 Taunt., 400 .
Wilmarth v. Bent, 7 Met., 257 .
Wilder V. Holden, 41 Mass., 8 .
Willard v. Goodrich, 31 Vt., 597
Wiltze ▼. Holt, 95 Ind., 469
Wilson V. Turnman, 6 M. &; Gr., 236 .
Wilson ▼. McKenzie, 7 Hill (N. Y.X 96
Wilson V. Noonan, 25 Wis., 353 .
Wilson V. Bowen (Mich), 31 N. W. Rep., 81
Wilson V. Tumman, 6 M. & G., 244 .
Wilson ▼. Young, 31 Wis., 574 .
Wilson V. State, 1 Port. (Ala.), 118 •
Wilson V. Shepler, 86 Ind., 275 .
Wingate v. Waite, 16 M. & W., 789 .
Winn V. Peckham, 42 Wis., 493 .
254,
288,
287, 291, 297,
281,
897,456,
382,888,
223, 381,
282,
228,
288, 810.
882, 883,
286,279,
888,498,
• 199
• 458
• 235
. 683
. 108
. 190
866
. 868
. 510
. 5:)8
. 104
. 20l»
. 863
. 401
. 534
. 555
. 451
. 485
457,462
524, 527
884,524
16
. 580
. 284
. 814
7
. 218
. 268
. 445
. 464
. 511
. 852
299,401
. 190
. 601
882, 8S4
810, 528
. 842
. 810
. 583
815, 462
284, 291
. 284
884, 524
. 887
200,202
61
166, 489
. 247
77, 178
. 169
298,810
. 212
82
. 2>9
. 232
289,243
241,589
. 108
. 514
. 879
. 528
. 150
528,604
IHDEZ OF OASES.
bcv
Winslow V. Hathaway, 1 Pick. (Mass.), 211
Winterburn v. Brooks, 2 C. & K., 16 .
Wise V. Withers, 8 Cranch (U. a), 881
Wilis V. Noyes. 12 Pick., 828
Witham y. Gowen, 14 Me., 862 .
Wilkinson t. Arnold, 11 Ind., 45
WiDemiller ▼. Thrush, 25 N. E. Rep., 850
Winebiddle v. Porterfield, 9 Pa. St, 187
Woloott V. Swampcott, 1 Allen, 101 .
Woldrich V. Lucas, 7 B. Monr., 49
Wood ▼. Bailey, 144 Mass., 865 .
Wood V. Barker, 87 Ala., 60
Wood ▼. Detroit aty R'y, 52 Mich., 402
Wood Y. Farnell, 50 Ala., 546
Wood V. Weir, 5 B. Mon. (Ky.), 544 .
Wood Y. Graves, 144 Mass., 865 .
Wood V. United States, 16 Pet, 842 .
Woods ▼. Finnell, 18 Bush, 629
Woodman v. Prescott (N. H.), 10 AtL Rep., 999
Wooding V. Oxley, 9 C. & P., 1 .
Woodward v. St Louis, eta, R'y Ca, 85 Mo., 142
Woodward v. Washburn, 8 Denio (N. Y.), 869 .
Woodward v. Mills, 6 Wis., 44; 20 N. W. Rep., 720
Woodward ▼. Glidden, 88 Minn., 108 .
Womack ▼. Circle, 29 Gratt (Va.), 195
Wortham y. Com., 5 Rand. (Va.), 669
Worseley v. Charnock, Cro. Eliz., 472
Wright V. Church, 110 N. Y., 468
Wright V. Clark, 50 Vt, 180
Wright V. Keith, 24 Me., 158 .
Wright Y. Rouss, 18 Neb., 284 .
Wright Y. State, 41 Tex., 246
101. 216
. 109
. 282
248, 249, 252, 275, 584
284, 291, 298
. 310
. 470
. 580
. 220
. 284
. 166
. 473
• 105, 109
. 190
• 265, 810
75, 186
. 804
16, 492, 495, 500
. 207, 208
. 484
. 228
. 281
267, 840, 868, 864, 466,
467, 586
. 484
284, 290, 296
. 888
. 867
. 459
. 2as
74,76
• 142
. 239
T.
Yarborough v. Bank of England, 16 East, 6
Yates T. Lansing, 5 J. R., 290 .
Yeazel y. Alexander, -58 111., 261
Yocam y. Polly, 1 B. Mon., 858
Young Y. Wise, 7 Wis., 129
Young Y. Gregorie, 8 Call (Va.), 446
. 881
181, 188, 134, 156
. 871, 506
. 812
• 199
. 281
Zabriskle ▼. Smith, 86 Barb., 270
aWey Y. Storey. Ill Pa. St, 478
Ziegler ▼. Powell, 54 Lid., 178 •
. 68
855,496
• 500
MALICIOUS PROSECUTIONS.
CHAPTER L
THE ACTION FOR MALICIOUS PROSECUTION,
% 1. The nature of the wrong.
2. The action at common law.
8. Where the action lies.
4. Malicious prosecution — HistoricaL
6. The action of malicious prosecution defined.
t. The foundation of the action.
7. Distinction between a malicious use and a malicious abuse of prooeil*
8l Where the action will lie generally.
(1) The want of probable cause as an essential element.
The subject illustrated.
Probable cause — Advice of counsel, eta
(2) Malice an essential element.
(8) Acquittal of the plaintiff.
'9. How the question of probable cause is to be tried.
(1) By the jury.
(2) By the court
10. The action lies for merely preferring an accusation*
11. Malice in this oopnection.
15. Evidence of malice in this connection.
The rule illustrated.
An instruction which increased the burden of proofL
Applications of the law.
(1) Malice is >not necessarily revenge.
(2) Maliciously suing out an attachment.
18. The action regarded with jealousy.
14. Not favored in law.
lOw To be carefully guarded and its principles strictly adhered to.
16. Bights of persons to institute civil suits or criminal prosecutioDflu
(1) In criminal matters.
(2) In civil matters.
(8) In bankruptcy matters.
17. Who are liable to respond in damages.
j6 action fob malicious fbosecution.
§ 18. Attorneys liable to respond, etc. — Liability of.
Applications of the law.
Liability of attorneys for suing out a writ of ne exeat
19. The malice of the client does not render the attorney liable.
Applications of the law.
20. Materiality of malice in actions for prosecuting suits in the name of
third persons without their authority.
21. Criminal informants protected — Honest belief — Strong grounds of
suspicion.
Applications of the law.
(1) Prosecution for felony — Prisoner discharged — The action
not sustained.
(2) Prosecutor liable where the complaint states no offense.
22. SuflQciency of the indictment, complaint, etc., in a criminal prose-
cution as a basis in an action for malicious prosecution.
Application of the law.
(1) Complaint showing no offense punishable at law.
(2) Complaint stating no criminal offense.
28. Will the action lie for maliciously prosecuting a civil suit?
24. Will the action lie? — The subject continued.
25. Distinction between actions for criminal prosecutions and civil suits.
26. The action lies for maliciously, etc., instituting and prosecuting
civil suits.
27. Upon what grounds the right to maintain such suits is placed.
28. The doctrine that action will lie — The law stated by Roes, J«
29. Rules of law governing the action.
80. An arrest and holding to bail not indispensably necessary.
81. The express malice must be alleged and proved.
Applications of the law.
An arrest and bail not indispensably necessary.
82. The contrary doctrine — The action will not lie.
Applications of the law.
(1) Where the action will lie for maliciously, and without prob*
able cause, prosecuting a civil suit,
(a) Malicious institution of proceedings in bankruptcy.
(h) Probable cause in civil prosecutions.
(c) Failure of the prosecution.
(d) Advice of counsel.
(e) Maliciously, etc., suing Out an injunction.
(/) Maliciously, etc., prosecuting an action of forcible
entry and detainer.
ig) Maliciously, etc., instituting a suit in replevin.
(h) Attaching personal property for a larger sum than
was due.
(2) The contrary doctrine — Where the action will not lie.
The action will not lie where there has been no arrest of
the person, seizure of the property, and no special in-
jury sustained.
ACnON FOB MALICIOUS FBOSEOUTIOIir. 8
§ 88. Malicious profiecution for suing out an attachment.
84» The law stated by Chief Justice Nelson.
85. Attorney's liability for bringing a civil suit.
86. SurviTal of the action.
Applications of the law.
Survival of the action for malicious prosecution.
§ 1. The nature of the wrong — The law stated by Cooley.'
It is the lawful right of every man, who believes he has a just
demand against another, to institute a suit and endeavor to
obtain the proper redress. If his belief proves to be un-
founded, his groundless proceedings may possibly cause a very
serious injury to the defendant; the mere assertion of a
serioas claim at law being capable, in some circumstances,
of affecting materially one's standing and credit. But to
treat that as a legal wrong which consists merely in asserting
a claim which cannot satisfactorily be established would be
plainly impolitic and unjust. The failure to sustain it might
possibly have come from the death of a witness or other loss
of testimony, from false evidence, from a mistake of law in
the judge, from misconduct in the jury ; from any cause rather
than fault in the plaintiff himself. To compel him, as the
penalty for instituting a suit he cannot sustain, to pay the costs
of the defense, is generally all that is just, and is sufficient to
make persons cautious about instituting suits which they have
reason to believe are baseless.
It is equally the lawful right of every man to institute or
set on foot criminal proceedings wherever he believes a public
offense has been committed. Here the injury is likely to be
more serious if the proceeding is unwarranted, but here, also,
it would be both unjust and impolitic to make the prosecution
which fails an actionable wrong. In some cases complainants
are required to become responsible for costs, but this is usually
the only liability.
Nevertheless it is a duty which every man owes to every
other not to institute proceedings maliciously which he has
no good reason to believe are justified by the facts and the
law.
§ 3. The action at common law. — The action at common
law for malicious prosecution was denominated '' an action
1 Cooley on Torts, 180 (1879).
4 AOnON VOB HAUOIOnS PBOBEOUnON.
apoQ the case." It was, however, an action to recover dam*
ages for injuries for which the more ancient forms of the com*
mon law afforded no remedy.*
Case, or, more fully, action upon the case, or trespass on
the case, includes in its widest sense assumpsit and trover^ and
distinguishes a class of actions in which the writ is framed
according to the special circumstances of the case, from the
ancient actions, the writs in which, called hrevia forrfuxta^ are
collected in the Eegistrum Brevium.
B\^ the common law and by the Statute Westm. 2d,' if any
cause of action arose for which no remedy had been provided,
a new writ was to be formed analogous to those already in
existence which were adapted to similar causes of action. The
writ of trespass was the original writ most commonly resorted
to as a precedent, and in process of time the terni trespass
seems to have been so extended as to include every species of
» • »
wrong causing an injury, whether it was malfeasance, rais^
feasance or 7i<?/ifeasance, apparently for the purpose of en-
abling an action on the case to be brought in the king^s bench.
It thus includes actions on the case for breach of a parol un-
dertaking, now called asstimpsitj and actions based upon a
finding and subsequent unlawful conversion of property, now
called trover, as well as many other actions upon the case
which seem to have been derived from other originab than
the writ of trespass, as nuisance, deceit, etc.
And, as the action had thus lost the peculiar character of a
technical trespass, the name was, to a great extent, dropped,
and actions of this character came to be known as actions on
the case.
As used at the present day, case is distinguished from as-
sumpsit and covenant in that it is not founded upon any con-
tract, express or implied; from trover, which lies only for
unlawful conversion; from detinue and replevin^ in that it lies
only to recover damages, and from trespass, in that it lies for
injuries committed without force, or for forcible injuries which
damage the plaintiff consequentially only, and in other re-
spects.'
1 Stephen on Pleading, 15. Eq. Jur., 237, 243; 1 Chitty, Plead,
2 13 Edw. L, ch. 24 123; 3 Blackstone, Ck)mm., 41.
* 8 Reeves, Eng. Law, 84 ; 1 Spence,
ACTION FOB MALIOIOUS FBOSEOUTION. 5
A similar division existed in the civil law, in which, upon
nominate contracts, an action distinguished by the name of the
contract was given. Upon innominate contracts, however, an
action prmscriptia verbis (which lay where the obligation was
one already recognized as existing at law, but to which no
name had been given), or iri factum (which was founded on
the equity of the particular case), might be brought.^
In many states the forms of actions have been abolished by
statutory enactments, and in some the distinctions between
trespass and case are also abolished ; but in all these jurisdic-
tions the rules of law relating to the cause of action, the par-
ties and the introduction of evidence, remain substantially the
same.
§ 3. When the action lies. — The common-law action upon
the case lies for all torts committed with force, actual or im-
plied, as for a malicious prosecution.' It is also the proper
remedy for fraud in purchases and sales, for obstructing a
private way, for disturbing a person in the use of a pew, for
an injary to a franchise, and in a multitude of other cases not
necessary to mention here.'
§ 4. Malicious prosecation — Historical. — By the ancient
forms of pleading, all actions for malicious prosecution, where
two or more were made defendants, were laid with a charge
of conspiracy. This practice is supposed to have had its
origin in the phraseology of the 21st Statute of Edward the
First, which gave the form of writs in such cases by using
the words de plcudto ccmspirationis et transgressionis} But
the charge of conspiracy was never deemed essential to the
action; and in modern times this form of allegation has fallen
into entire disuse. Bv the rules of the common law an action
of conspiracy, or, to use an equivalent expression, a writ of
conspiracy, was never allowed but in two cases: one for con-
spiring to procure a man to be indicted for treason; and the
' 1 Bonvior's Law Dictionary, 244. f 1 Bouvier's Law Dictionary (15th
*Mu3e. Ex., eta, v. Vidal, 6 Munf. ed.) (1884). title Case, p. 286.
(Va.), 27 (1817) ; Warfteld v. Walter, < 1 Saunders, 230, note ; 38 Edw. I.,
UGUl&J. (Md.), 80(1839);Hay8 V. St. 2; Parker v. Huntington, 68
Younglove, 7 B. Mon. (Ky.), 545 Mass., 124 (1854); Fitzherbert's Nat-
(1^7); Seay ▼• Greenwood, 21 Ala., ura Brevium (9th ed., 114 D., Lon-
«1 (1863). don) (1794).
% ACnON FOB KAU0IOU8 PBOSEOUTION.
other for a conspiracy to prosecute a man for felony by which
life was put in danger. And in these cases the action was
confined within very narrow limits, and would lie only when
a party was acquitted by a verdict such as would enable him
to plead autrefois acquit if again indicted for the same crime.^
This form of action has, however, become obsolete in those
cases where it was allowed at common law, having been su-
I perseded by the action on the case in the nature of a conspir-
acy, which furnishes an adequate and more liberal remedy
for malicious prosecution of every nature and description.* It
is no longer necessary for the plaintiff to aver a conspiracy
on the part of several defendants, or to allege an agreement
on their part to do any act in itself unlawful, or any act lawful
in itself but effected by unlawful means. The action can be
maintained now by proof of a malicious prosecution by one
or all of the defendants.*
§ 5. Malicioas prosecution — The action of, defined. — A
judicial proceeding, instituted by one person against another
from wrongful or improper motives, and without probable
cause to sustain it. It is usually called a malicious prosecu-
tion; and an action for damages for being subjected to such
a suit is called an action for malicious prosecution. In strict-
ness the prosecution might be malicious, that is, brought from
f unlawful motives, although founded on good cause. But it
' is well established that unless want of probable cause and
malice concur no damages are recoverable. However blame-
worthy was the prosecutor's motives, he cannot be cast in
damages if there was probable cause for the complaint he
made. Hence, the term usually imports a causeless as well as
an ill-intended prosecution. It commonly, but not necessarily,
means a prosecution on some charge of crime.*
Malice, in the rules relative to malicious prosecutions, is not
used in the sense of spite or hatred against an individual, but
iSelw. Nisi Prius (llth ed.), 1062; 'Parker v. Huntington, 68 Mass.*
Stephen's Mai. Pros., 2 (1889). 124 (1854): Payson v. Caswell, 23
aSaville v. Roberts, 1 Ld. Ray- Me., 226 (1848); Dunlop v. Glidden,
mend, 374 (1678); Parker v. Hunt- 81 Me., 435 (1850); Jones v. Boker, 7
ington. 68 Mass., 124 (1854); Smith Cow. (N. Y.), 445 (1827).
V. Cranshaw, Sir St. Jones, 93 (1625) ; < 2 Abbott's Law Die, 75 (1879X
Garing v. Fraser, 76 Me., — (1884).
ACTION FOB MALICIOUS PBOSEOUTION. 7
of malice animus^ as denoting that the party is actuated by
improper and indirect motives.^
§ 6. The foandatioH of the action. — There are two things
which are not only indispensable to the support of this action,
bat lie at the foundation of it. The plaintiff must show that
the defendant acted from malicioua motives in prosecuting
him, and that he had no sufficient reason to believe him to be
guilty. If either of these be wanting the action must fail.
A man from pure malice may prosecute another who is really
guilty, or whom, from sufficient grounds, he believes to be
guilty, though in fact innocent, and no action will lie against
him.*
§ 7. Distinction between a malicious use and a malicious
abuse of process* — There is a distinction between a malicious
use and a malicious abuse of legal process. An abuse of legal
process is where the party employs it for some unlawful object,
not for the purpose which it is intended by law to effect; in
other words, it is a perversion of it. For example, if a man
is arrested, or his property seized, in order to extort money
from him, even though it be to pay a just claim, other than
that in suit, or to compel him to give up possession of a deed
or anything of value not the legal object of the process, it is
settled there is an action for such malicious abuse of process.
It is not necessary to prove that the action in which the proc-
ess issued has been determined or to aver that it was sued out
without probable cause.' On the other hand, legal process,
civil or criminal, may be maliciously used so as to give rise
to a cause of action, where no object is contemplated to
be gained by it other than its proper effect and execution.
As every man has a legal right to prosecute his claims in a
^Harpham y. Whitney, 77 lU., (1812); MarsbaU t. Bussard, Gilmer
82(1875). (Va.), 9 (1820); BeU v. Graham, 1
* Stone V. Crocker, 41 Mass., 81 Nott & McCord, 278 (1818); Van-
(1832); Golding v. Crowle, Sayer, duzor v. linderman, 10 Johns., 106
1(1753); Farmer V. Darling, 4 Burr., (1813); White t. Dingley, 4 Mass.,
1974; Jones V. Gwyn, 10 Mod., 214; 486 (1808); Lindsay v. Larned, 17
Johnstone v. Sutton, 1 T. R., 545; Mass., 190(1821).
B Stark. Ev., 911; Lyon v. Fox, 2 » Mayer v. Walter, 64 Pa. St., 288
Browne (Penn.), App., 69; Mann V. (1870); Grainer ▼. Hill, 4 Bing.
Dupont, 8 Wash. C. C. R, 81 (1811); N. C, 212.
SeitonT. Bevins, Ck)oke (Tenn.), 90
8 ACTION FOR MALICI0TT8 PEO8E0UTI0N.
court of law and justice, no matter by what motives of malice
he may be actuated in doing so, it is necessary to aver and
prove that he has acted not only maliciously but without rea-
sonable or probable cause. It is clearly settled in this form
of action that the proceeding in which it is claimed the proc-
ess has been maliciouslv used must have been determined
before any action for the injury lies.^
Commok-law distinctions. — The term false imprisonment
though technical, does not appear to convey any suflBciently^
definite ineaning. It means in law any illegal imprisonment,
either without any process whatever, or under color of pro-
cess wholly illegal, without regard to any question whether
any crime has been committed or a debt due, so that the
proper civil remedy is trespass vi et armis as for a direct in-
jury wholly unwarranted even in its inception. The terms
malicious prosecution or malicious arrest always in law sup-
pose regular process and proceedings, but that the facts did not
warrant their issuing, and which is to be decided by the re-
sult; as where the warrant to imprison a party was perfectly
regular and proper, but he was innocent of the supposed
crime and ultimately acquitted ; or where there has been a
sufficient affidavit to hold to bail and a valid writ, but when,
in fact, no debt was due, and so established on the trial or
other termination of the suit. In the latter cases the remedies
are not by trespass vi et armis as for a direct injury, but by
action on the case for the malicious adoption of the regular
proceeding when there was no probable cause or ground for
issuing it.
These distinctions are also substantially important, for if
the process or the imprisonment were wholly illegal or mis-
applied as to the person intended to be imprisoned, without
regard to any question of fact, or whether guilty or innocent^
or the existence of any debt, then the party imprisoned may
legally resist the imprisonment and may escape or be rescued,
or even break prison ; whereas however innocent he might be,
yet if the process and imprisonment were in form legal, each
of those acts would be highly punishable, for he ought to
lArundellv. Tregano, Yelv., 117; Mayer v. Walter, C4 Pa. St., 2»
(1870).
AOnOK FOB KAUOIOUS FBOSBOUTION. 9
submit to the legal process and obtain his release by dae
coarse of law. Even in cases where the imprisonment is mani-
festly informal and illegal, the party must not, to obtain his
release, use any dangerous weapon, and the safest course in
all cases is to obtain liberty by habeas corpus^ or by procuring
bail as hereafter fully explained, by which means relief from
continued imprisonment may be speedily obtained, and with-
out prejudicing the remedy by action for the intervening
illegal imprisonment.^ .
An action will lie against one who has either unlawfully
arrested or imprisoned another, or who has falsely, that is un«
justly and maliciously, prosecuted him and caused his arrest.
But these are different actions, requiring different pleadings and
evidence, and governed by different rules. Under the com-
mon-law nomenclature an action for unlawfully arresting and
imprisoning another is trespass, while for maliciously prose-
cuting another or causing or procuring his arrest it was an
action on the case. The former is the action for false impris-
onment; the latter for a malicious prosecution or malicious ar-
rest.*
Compensation fob these wrongs. — Compensation for every
illegal imprisonment without pi'ocess, or under void or misap*
plied process, may be obtained by action of trespass, in which
the recovery of damages in general entitles the plaintiff to
full costs,* and the wrong-doer may also be indicted.*
The compensation for imprisonment, under color of regular
criminal or civil process, is by action on the case, and is sub-
jected to certain qualifications. Even if it turn out in the re-
sult of a prosecution that the party imprisoned be acquitted,
or that in an action he obtained a verdict or nonsuit, it does
not necessarily follow that he can recover any compensation
for the intervening imprisonment; for there may have been
adequate reasonable ground for setting on foot the inquiry,
though it may ultimately be established that there was no
crime or no debt. It has been considered that if in the event
of every acquittal the prosecutor were liable to an action, the
U Chitty'8 Practice, 48; Brown v. « 8 Bla. C, 318; 6 T. R., 11.
Chadsey, 39 Barb. (N. YO, 258(1868). « 4 Bla. C, 218, 219; 2 Burr.. 998.
« Brown v. Chadsey, 89 Barb.
(N. T), 253 (1863).
10 ACTION FOB KAUdOITB PBOBXOUTIOH.
apprehension of that consequence would deter persons from
becoming prosecutors, and crimes would go unpunished; and
with regard to actions, it has also been considered that the
trial of a private claim in a public court of justice is matter
of right, and if the party do not succeed, his payment of the
defendant's costs is a sufficient compensation. The presump-
tion, therefore, is in general in favor of the prosecutor and of
the plaintiff that they properly instituted the proceeding.^
§ 8. Where the action will lie — Generally. — An action
for malicious prosecution lies in all cases where there is a con-
currence of the following elements in the transaction com-
plained of:
(1) The institution of a suit or proceeding without probable
cause.'
(2) Malice in the institution of the suit or proceeding.'
(3) Complete termination of the suit or proceeding.*
(1) The wAin- of probable cause as an essential ground
OF THE AOTioN. — The waut of probable cause is the essential
ground of the action. Other grounds or essentials may be
inferred from this; but this can never be inferred from any-
thing else. It must be established by positive and express
proof. It is not enough to show that the plaintiff was ac-
quitted of the charge preferred against him, or that the defend-
ant abandoned the prosecution. But the burden of proof is
upon the plaintiff to prove affirmatively, by circumstances or
otherwise, as he may be able, that the defendant had no ground
for commencing the prosecution.*
The SUBJECT illustrated. —
Probable cause — Advice of counsel — Swearing out a toarrani upon mat"
ters believed to be true,
I John W. Jones sued his brother Calvin Jones for a malicious prosecution.
' The facts upon which the suit was founded are as follows:
Mary Jones, their mother, was an incompetent person, and one Levi
> 1 Chitty. Practice, 50. (1882); Purcell v. McNamara, 1
«Cooley on Torts. 180 (1879); Pol- Campb., 199; 9 East. 861; Sykes ▼.
lock on Torts, 265 (1888). Dunbar, 1 Campb., 202, note; Incle-
'Cooley on Torts. 180 (1879); Pol- don v. Berry, 1 Campb.. 208, note;
lock on Torts, 264 (1886). Wallace v. Alpine, 1 Campb., 204,
<Cooley on Torts, 180 (1879); Pol- note; Shack v. McCheeney, 4 Teates
lock on Torts, 264 (1886). (Penn.), 507 (1808).
* Stone V. Crocker, 41 Mass., 81
ACTION FOB UAUOIOnS PBOSEOUTION. 11
Nioewonger was guardian of her estate, and as such, guardian had procured
an order of court authorizing him to sell certain of the personal property
belonging to his ward, and had advertised it for sale. .
The plaintiff and one Calvin Jones, another brother (or perhaps Calvin
Jones alone), came to the county of San Joaquin from the county of Fresno,
and stated to the guardian that they desired to take the personal property
of Mary Jones to Fresno. They were told by him that they could not take
the horses, wagons or cows, as that property was to he sold in a short time.
The plaintiff and Calvin Jones then went to the Jones ranch with their
mother, and requested of the man who was in charge for said guardian
the privilege of using the horses and wagon to convey the household fur-
niture of said Mary Jones to the railroad station at Ripon, offering to re-
turn the team to the ranch in the afternoon of the same day. The agent
in charge of the property agreed that he would allow them to take the
team, and that he would go to Ripon and bring the team back. Under
such representations they got possession of the team and started on the
road apparently towards Ripon. They did not go to Ripon, but took the
first road in a southern direction, going directly away from Ripon. Moll,
the agent of the guardian, after making the arrangements with plaintiff
and Calvin Jones concerning the team, started for Ripon for the purpose
of bringing it back, and after he left the ranch plaintiff and Calvin Jones
drove the cows away from the ranch. When Moll arrived at Ripon he
found that the team was not there, and upon inquiry ascertained that the
plaintiff had heen seen driving it up the road leading south. Moll then
started for Stockton to inform the district attorney, and when he arrived
in Stockton he met the defendant, who was interested in the estate of his
mother, INIary Jones. Moll then informed the defendant what had been
done by the plaintiff and Calvin Jones, and requested the defendant to see
about the matter; at tlie same time informing him that the guardian (Nice-
^vonger) was absent in San Francisco. The defendant went to the office of
the district attorney, and informed him of what had been told him by Moll,
and asked what should be done in the matter. The defendant was advised
by the district attorney that the crime of grand larceny had been commit-
ted, and to have the plaintiff arrested. The district attorney prepared the
-complaint and the defendant swore to it, a warrant was issued and plaintiff
was arrested in the county of Fresno, and brought to Stockton, a distance
of 8ay one hundred and thirteen miles, where, upon the following day, he
had an examination before a justice and was discharged. He was not con-
fined in jaUi or subjected to any indignity beyond that implied by being
deprived of his liberty upon the charge of larceny.
The plaintiff recovered $6,500 and the defendant appealed.
In disposing of the appeal, Searls, C. , said :
'* To maintain an action for malicious prosecution, malice and want of |f
probable catme must concur. If either of these be wanting, the action
must fail. Anderson v. Coleman, 53 Cal., 188. The primary question to
be considered in this class of cases, as was said in Grant v. Moore, 29 Cal.,
644, is the want of probable cause for the prosecution complained of, and
<h]fl must be established before plaintiff can recover ; and the burden of
proof 18 upon the plaintiff.
12 ACTION FOB MALICIOUS PBOSECUTIOSr.
"NioewoQger, as the guardian of Mn. Jones, was in poaseasion of the^
property, and had sach a special property therein as would support
larceny, against one taking with felonious intent. A man may steal his
own property, if, by taking it, his intent be to charge a bailee with the
property. People t. Thompson, 34 Cal., 071; People t. Stone, 16 CaL,
869.
"1. It seems to us that the facts upon which the defendant acted in pro>
curing the warrant for the arrest of plaintiff showed probable cause for
the course he pursued, and negative the idea of malice. We may well
suppose, in the light of the present, that the felonious intent on the part of
plaintiff, necessary to constitute larceny, was entirely wanting. We mast»
however, determine the question of probable cause from the facts as they
existed and appeared to defendant at the time he made the complaint. He
had a right to act upon the flu;ts as they were apparent by the acts of plaint-
iff, independent of any secret intention on the part of the latter to return
the property, which was not and could not be known to him. Had the
plaintiff been an entire stranger to the parties and to the property, his acts
were of such a character that they would have supported a verdict of
guilty upon a charge of larceny. If, in the performance of an unlawful
act, the plaintiff surrounded the transaction with circumstances of his own
creation, real and adventitious, indicating guilt, he should not be heard to-
complain that others acted upon the hypotheses thus supported by his con-
duct.
" 2. There can be no reasonable doubt from the evidence but that Moll,
the agent, correctly narrated the facts as they had transpired at the ranch,
and that defendant with equal fidelity detailed them to the district attor-
ney, and that when asked what he should do, they, as the law officers,
advised him that the acts of plaintiff and his brother constituted grand
larceny and advised their arrest for crime. They then went before the
magistrate with a complaint which the district attorney had prepared and
defendant had verified, and upon a statement of the facts to that officer,
and on the advice of the district attorney, a warrant issued.
** In Leigh v. Webb, 8 Esp., 165, Lord Eldon held that if a party makes
a complaint before a justice, which the justice conceives amounts to a
felony, and issues his warrant against the party complained against, and
the facts do not amount to felony, no action for malicious prosecution wiU
lie against the party who made the complaint. This doctrine is upheld by
this court in Hahn v. Schmidt, 64 Cal., 284, where authorities bearing upon
the question are cited and approved.
** In Levy v. Brannan, 89 Cal., 4^5, it was said: * The ontu is upon the-
plaintiff to prove his allegation of the want of probable cause. The de-
fendant may rebut the evidence of the plaintiff on this point by showing^
that he acted in good faith, under the advice of counsel, and after a full
and fair statement to his counsel of the facts of the case,' citing Potter v.
Scale, 8 Cal, 224.
** In this case the testimony of the district attorney and of defendant
was introduced by plaintiff, and showed, not only the truthful and full
statement made by the defendant, the advice of the district attorney
thereon, but also that the aefendant in good faith believed the statement
4XmOS FOB/ HAUOIOTJS PBOflBOXJTlOV* 13
io be what in fact it was, — the truth. We think, upon the showing made
by plaintiff, there was no want of probable cause for his arrest, and there-
fore that the motion for a nousuit should have been granted.
'* Judgment reversed." Jones v. Jones, 71 Cal., 80.
(2) Malice an essential element. — If a man institutes a
prosecation against anotlier for a crime of which he has no
reason to believe him guilty, surely be cannot be influenced by
good motives in doing it. A love of justice will never incite
the prosecution of innocence. Nor does friendship to the ac-
-cused ever show itself in this way. Hatred, revenge, or some
other sinister or improper motive, either of which in law is
malice, must be its source. The want of probable cause may
<not be conclusive evidence, but certainly it is not only com-
petent, but very stringent, evidence of malice. It is believed
that not a single case can be found in English-speaking coun-
tries where this principle is involved in which it is not directly
or impliedly admitted.^
' (3) Acquittal op the plaintiff. — An indispensable, though
generally easy, step is the proof of the institution of the pros-
ecation and of the acquittal of the plaintiff. This necessarily
being a matter which exists on record, if at all, must be proved
by the record or by an authenticated copy of the record." One
of the means to which the English courts sometimes resort to
check the improper use of the action for malicious prosecu-
tion is the refusal to the plaintiff of a copy of the record of
his acquittal This, however, is only done when in their opin-
ion there was a probable cause for the prosecution.' It is not
probable that American courts would undertake to exercise
the same control over the records, but would leave this ac-
**oii, like all others, to be settled upon its merits and accord-
*^g to correct principles of law, when regularly before them
for trial.*
Stone v.. Crocker, 41 Mass., 87 note; Kerr v. Workman, Addison,
^^^h 2 Starkie's Ev., 913: Savil/ 270(1794).
^•Hoberts, ISalk., 14;lLcl. Raym., sgtone v. Crocker, 41 Mass., 87
^^4; Metcalfs Yelv., 105, note 2; (1882).
Johnson t. Sutton, 1 T. R., 545; 3 Granvelt v. Burrell, 1 Ld. Raym.,
^orcell V. McNamara, 9 East, 861; 253; Jordan v. Lewis, 2 Stra., 1121.
Indedon v. Berry, 1 Campb., 203, < Stone v. Crocker, 41 Mass., 87
(1882).
/
/
14 ACTION FOB MALICIOUS FBOSEOUTION.
§ 9. How is the question of probable caase to be tried. —
(1) By the juby. — The functions of the court and jury are
different and generally distinct; though sometimes in crimi-
nal cases they run into each other so that they cannot be
clearly distinguished or separated. But in this action and
others of the kind there is but little difficulty in drawing the
line. If these functions encroach upon each other it will not
be because their respective provinces are not separated by
plain boundaries. What facts and circumstances amount to
probable cause is a pure question of law. Whether they exist
or not in any particular case is a pure question of fact. The
former is exclusively for the court; the latter for the jury.
The question must necessarily be submitted to the jury when
the facts are in controversy, the court instructing them as to
the law.^
(2) By thb court. — It may happen that this and other
mixed questions of law and fact need not and cannot properly
be sent to a jury. Where the facts are undisputed, or where
all the facts which the plaintiff's evidence conduces to prove
do not show a want of probable cause, it becomes a mere
question of law which the court must decide, and it would
be useless and improper to take the opinion of a jury upon it,
for if they found for the plaintiff the court would set aside
the verdict, not so much because it was against evidence as
because it was against law.*
§ 10. An action for malicious prosecntion will not lie for
merely preferring an accusation — The law stated by Wal-
lace^ J« — The gist of the action of malicious prosecution is
the putting of legal process in force regularly for the mere
purpose of vexation or injury, and the inconvenience or harm
resulting naturally or directly from the suit or prosecution is-
1 Stone V. Crocker, 41 Mass. 84 v. Dufont, 2 Browne (PeDn.), App.,
(1832);2Starkie,E v., 912; Johnstone 42; 3 Wash. C. C. R., 81 (1811);
V. Sutton, 1 T. R., 545 (1786); Can- Crabtree v. Horton, 4 Munf., 59
dell V. London, 1 T. R., 520 (1785); (1818); Kelton v. Bevins, Cooke
Reynold v. Kennedy, 1 Wife., 232 (Tenn.), 90 (1812); Ulmer v. Lland,
(1753); Hill v. Yates. 2 Moore. 80; 1 Greenl., 135(1821).
Isaacs v. Brand, 2 Stark. R., 167; ^ Stone v. Crocker, 41 Mass., 85
Brooks V. Warwick, 2 Stark. R., 389: (1832); Golding v. Crowle, Sayer, 1
Reed v. Taylor, 4 Taunt., 616; Leg- (1751); Buller's Nisi Prius, 14.
gett T. Blount, 2 Taylor, 123 ; Munns
ACTION FOE MALICIOUS PROSECUTION. 15
the legal damage upon which it is founded. Some of the text-
writers state that the action will lie whenever the defendant
has made a charge of felony against the plaintiff with a view
to induce a magistrate or tribunal to entertain it, whether any
warrant or other process was issued or not.^ Actions have
been maintained in the nature of a conspiracy for procuring
a false indictment and even for preferring a false charge of
crime upon which the grand jury refused to indict. But the
only decisions cited in support of the proposition that the ac-
tion of malicious prosecution will lie although a criminal pro-
ceeding has not actually been instituted by the issuing of
process, where the point actually arose, are in the nisi privs
case of Clarke v. Postan^ 6 Car. & P., 423, and in the case of
Dawson v. Vansandau^ 11 Weekly Kep., 516, in which, although
no process was issued, the plaintiff was taken into custody and
held for examination upon the charge. On the other hand, it
was said by Patteson, J., in Gregory v. Derby, 8 Car. & P.,
749, where there was a charge of stealing, upon which a war-
rant was issued against the plaintiff, that, '* if the party was
never apprehended, no action at all would lie;" and in O^Dris-
coll V. McBurney, 2 Nott & McC, 54, 55, it was said : *' There
can be no prosecution without an arrest." The only injury
sustained by the person accused, when he is not taken into
castody and no process has been issued against him, is to his
reputation, and for such an injury the action of libel or slan-
der is the appropriate remedy and would seem to be the only
remedy. This is the view adopted by Hare & Wallace in
their notes to American Leading Cases (vol. 1, p. 173), and
the learned commentators state that slander or libel is the only
appropriate remedy where va charge of felony has been made
and warrant was not thereupon issued, and that malicious
prosecution, and not slander or libel, is the remedy whenever
a warrant has been issued. The question was fully considered
by the supreme court of South Carolina in Eayward v. Guth-
bert, 4 McCord, 354 — whether an action for malicious prose-
cution would lie founded on a criminal charge upon which no
process was issued against the accused — and it was adjudged
that it would not. In that case the charge was in the form
iSteph., Mai. Pros., 8; Add., Torts, g 85a.
16 AOnON FOB MALIOIOnS PBOSEOUTIOK.
of an informatioii laid before the magistrate to procare a
warrant for the arrest of the plaintiff. To the same effect is
the case of Kiiedand v. Spitzka^ 42 N- T. Super. Ct., 470,
where the question was decided in an appellate court. In the
early case of Ram v. Lamley^ Hut, 113, it was held that an
action of slander could not be maintained for an oral charge
of felony made to a justice of the peace upon an application
for a warrant against the plaintiff, for the reason that, if words
80 spoken were to be held actionable, '^ no other would come
to a justice of the peace to inform him of a felony." A de-
famatory statement spoken or written in a legal proceeding,
civil or criminal, which is pertinent and material, is so unquali-
fiedly privileged that its truth cannot be drawn into question
or malice predicated of it in an action for slander or libel.^ If,
upon considerations of public policy, such an action cannot be
maintained upon the same considerations, no other action
should lie. Without doubt, libel or slander will lie for an ac-
cusation to a magistrate when made yfithnolona fde intention
of prosecuting it. Unless such facts can be shown by the per-
son accused, or unless he is subjected to the vexation and ex-
pense of process against him, upon principle he ought not to
be allowed to recover. The more generally approved doctrine
is that for the prosecution of a civil action, maliciously and
without probable cause, to the injury of the plaintiff, he may
maintain an action for damages although there was no inter-
ference with his person or property.* The cases, however,
which sustain this view do not countenance an action when
the vexatious suit has not been actually instituted and prose-
cuted to such effect that the plaintiff has sustained pecuniary
loss.'
§ 11, Malice in this connection. — Many acts derive their
character from the temper, spirit and motive with which they
iRevis V. Smith, 18 C. B., 12G; 186; Marbourg t. Smith, 11 Kan.
Lea V. White, 4 Sneed, 111 ; Garr v. 554; Woods v. FinneU, 13 Bush, 629;
Selden, 4 N. Y., 91 ; Hawk v. Evans, Pope v. Pollock (Ohio), 31 N. E. Rep.,
76 Iowa, 593; 41 N. W. Rep., 368. 356; McCardle v. McGinley, 86 Ind,,
2Pangburn v. Bull, 1 Wend., 345; 538; McPherson v. Runyon (Minn.),
Whipple V. Fuller, 11 Conn., 582; ' 43 N. W. Rep., 392; Smith v. Smith,
CloBSon T. Staples, 42 Vt. , 209 ; Eastin 20 Hun, 555 ; Newell on Slander, 600.
V. Bank, 66 Cal., 128; 4 Pac. Rep., « Cooper v. Armour et aL, 42 Fed.
1106; Allen y. Ck>dman, 139 Mass., Rep., 215 (1890).
ACTION FOR MALICIOUS PROSECUTION. 17
are done. It is these which give them their force and signifi-
cance, and render them harmless or injurious, according as
the intention with which they were done was innocent or
malicious. A man who wounds another by carelessness does
moch less injury, and would be liable to a very different
measure of damage, from one who wilfully inflicts the same
or even a smaller wound purposely, and with a design to dis-
grace the person whom he attacked. In all such cases, it is
not merely the act which constitutes the injury and forms
the proper subject and basis of damage, but it is also the
evil intent and motive with which it is done that wounds the
feelings and injures the reputation, and forms a just and in
some cases a material ground upon which damages can be
properly claimed and given.^
§ 12. Evidence of malice — It is sulBcient if the action
alleged to be malicious is commenced maliciously. — In ac-
tions for malicious prosecutions, where nialice is an essential
element, the burden of proving which is upon the plaintiff, it
is, as a general rule, sufficient to prove that the action was
commenced maliciously. It is not necessary to sustain the ac-
tion to show that the suit was maliciously continued,' but the
fact of such continuance may be shown for the purpose of in-
creasing the damages.
The rule illustrated. —
An itiHrueHon which increased the burden of proof.
Finley brought an action against the St. Louis Refrigerator Company for
a malicious proeeoation in the St Louis criminal court for obtaining
money under false pretenses. On the trial the court gave, among the
InstmotiottB at defendants' instance, the following: ** Although the plaint-
iif Bucoeeda in satisfying you from the evidence that the prosecution com-
plained of was commenced by defendants without probable cause, yet you
wUl find your verdict for the defendants unless you further find from the
evidence that the defendants commenced and continued the prosecution
against the plaintiff maliciously." There was a finding for defendants and
judgment accordingly, from which plaintiff appealed.
In reversing the judgment the court say: *' An error was made in the
instruction for defendants which told the jury to find for them unless they
found from the evidence that defendants * commenced and continued the
^Smith V. Hyndman et al., 04 spinley v. St.^L. Ref. Co., 99 Ma,
Mass., 554 (1852) ; Bond v. Chapin, 8 059; 13 a W. Rep., 87 (1890).
Met., 31 (1S44).
2
18 ACTION FOB MALICIOUS PROSECUTION.
proeeoation against the plaintiff maliciously.' Malice is an essential fact
to be proven to maintain an action for malicious prosecution, though it
may often be inferred as a fact from the proofs which establish a want of
probable cause; but it was not vital to plaintiff's recovery that he should
show that defendants commenced and continued the prosecution mali-
ciously. If he proved that it was either so commenced or continued by
them, it would be sufficient to support his case under the pleadings and evi-
dence. The instruction in question required the plaintiff to bear a greater
burden of proof than the law in strictness demanded. It is hence neces-
sary to reverse the judgment." Finley v. St. L. Refrigerator Ck>. et aL, 09
Mo., 559; 18 S. W. Rep., 87 (1890).
Application of the law. —
(1) The malice neceeaary to be ahmim U not neceesarily revenge, efc— Ptaint-
iff* 8 character.
In an appeal from a judgment in an action for malicious prosecution,
it appeared by the bill of exceptions that the court, after having instructed
the jury as to what would constitute probable cause, and that both want of
probable cause and malice must concur before the action could be main-
tained, gave the jury Che following instruction: *' It is not necessary that
there should have been any spite or hatred or bad feeling on the part of
the defendant towards the plaintiff to constitute malice, but any wrongful
act, done intentionally, tending to injure another, without just cause or
excuse, is malicious ; " which was excepted to by defendant, and consti-
tutes the main ground of error relied upon for reversal.
In discussing the correctness of this instruction, Lord, J., said: "A re-
currence to definition will aid in testing the correctness of this instruction.
What is meant by * malice,' in the sense of the law? ' Malice,' in common
acceptation, means ill-will against a person, but in its legal sense it meana
a wrongful act done intentionally, without just cause or excuse. Bro-
mage v. Prosser, 4 Barn. & C, 255. Chief Justice Shaw defined it thus:
' Malice, although in its popular sense it means hatred, ill-will or hostility
to another, yet, in its legal sense, has a very different meaning, and char-
acterizes all acts done with an evil disposition, a wrong or unlawful motive
or purpose; the wilful doing of an. injurious act without lawful excuse.'
Ck)m. V. York, 9 Mete., 104. Judge Story, thus: * Malice, in the sense of
the law, does not necessarily presuppose in a party personal hatred or re-
vengeful spirit against the party injured. It is sufficient to constitute it a
malicious act that it is wrongfully and wilfully done, with a consciousness
that it is not according to law or duty.' Wiggin v. Coffin, 8 Story, 7.
Hence it is said that the intentional doing of a wrongful act, with knowl-
edge of its character, and without cause or excuse, is malicious. Rounds
V. Railroad Co., 8 Hun, 885. It imports nothing more than the wicked and
perverse disposition with which the party commits the act. Com. v. York,
Bupra, But it need not imply 'malignity' nor even 'corruption ' in the
appropriate sense of these terms. Any improper motive constitutes mal-
ice, in the sense it is here used. Culbertson v. Cabeen, 29 Tex., 256. The
malice necessary to be shown in order to maintain this action [malicious
prosecution] ia not necessarily revenge, or other base and malignant pas-
ACTION FOR MALICIOUS PBOSECUTION. 19
sion. Whatever is done wilfully and purposely, if it be at the same time
wronfc and unlawful, and that known to the party, it i% in legal contem-
I^ation malicious. That which is done contrary to one's own couTiction
of duty, or with a wilful disregard of the rights of others, whether it be to
compass some unlawful end, or some lawful end by unlawful means, or,
in the language of the charge, to do a wrong and unlawful act, knowing
it to be such, constitutes legal malice. Wills v. Noyes, 12 Pick., 827.
" Malice, then, in the enlarged sense and meaning of the law, is not re-
stricted only to anger, hatred and revenge, but includes every other un-
lawful and unjustifiable motive ; so that it may be said that any motive,
other than that of simply instituting a prosecution for the purpose of
bringing a person to justice, is a malicious motive on the part of a person
who acts under the influence of it. So much with reference to definition,
or to what is meant by the team ' malice* or ' malicious' in the legal sense.
'* But the term ' malice ' has, in law, a twofold signification. There is
what is known as ' malice in law,' or * implied malice/ and ' malice in fact,'
or 'actual malice.' 'Malice in law' denotes a legal inference of malice
from certain facts proved. It is a presumption of malice which the law
raises from an act unlawful in itself which is injurious to another, and is
declared by the court. ' Malice in fact,' or ' actual malice,' relates to the
actual state or condition of the mind of the person who did the act, and is
a question of fact, upon the circumstances of each particular case, to be
found by the jury. In actions for malicious prosecutions there is no such
thing as malice in law, but malice in fact must be proved, and its existence
purely a question of fact for the jury. Ritchey v. Davis, 11 Iowa, 124.
But in this form of action malice is not considered in the sense of spite or
hatred against an individual, but of malice animus, and as denoting that
the party is actuated by improper and indirect motives. Mitchell v. Jenk-
ins, 5 Bam. & Adol. , 594. To prove actual malice it is not necessary, there-
fore, that the prosecution complained of should proceed from hatred or ill-
will to the plaintiff, but it may be inferred from any improper and
unjustifiable motive which the facts disclose influenced the conduct of the
defendant in instituting the prosecution. 'But it is well established,'
said Libbey, J., ' that the plaintiff is not required to inrove ' express malice,'
in the popular signification of the term ; as that defendant was prompted
by malevolence, or acted from motives of ill-will, resentment, or hatiled
towards the plaintiff. It is sufficient if he proves it in its enlarged sense.'
'In a legal sense, any act done wilfully and purposely, to the prejudice and
injury of another, which is unlawful, is, as against that person, malicious.'
Com. V. Snelling, 16 Pick., 827. 'The malice necessary to be shown in
order to maintain this action is not necessarily revenge, or other base and
malignant passion. Whatever is done wilfully and purposely, if it be at
the same time wrong and unlawful, and that known to the party, is, in
legal contemplation, ' malicious.' Wills v. Noyes, 12 Pick., 824; Pullen v.
Glidden, 66 Me., 202. See, also. Page v. Gushing, 88 Me., 528; Humphries
▼. Parker, 62 Me., 502; Mitchell v. Wall, HI Mass., 492.
** While it is true that express or actual malice refers or relates to the
mental state or purpose of the party who committed the act, and its exist-
ence must be proved, the law does not require direct evidence of such
20 AcrrioN fob malicious prosecution.
mental state or purpose ; bat the character of the act itself, with all its sar-
rounding facts afld circumstances, may be inquired into for the purpose of
ascertaining the motive or purpose which influenced the mind of the party
in committing the act ; and if, upon a full consideration of these, that mo-
tive is found to be improper and unjustifiable, the law authorizes the jury
to find it was malicious. If, for instance, an officer should arrest a party,
not out of spite or any spirit of hatred or revenge, but for the purpose of
increasing his fees or magnifying his importance and administering to his
vanity, the motive which prompted such conduct would be improper and
wrongful, and, in a legal sense, malicious. In this form of action, there-
fore, malice has reference to the mind and judgment of the defendant in
the particular act charged, and is one of intent and open to the jury.
Barron v. Mason, SI Vt., 197. It is not the guilt of the prosecuted but the
intention of the prosecutor which is the subject of examination in this action.
McMahan v. Armstrong, 2 Stew. & P., 154. And what that intention was,
whether malicious or justifiable, is for the jury, and not for the court, to
infer from the facts and circumstances of the case. In a word, whether
the defendant acted with malice is never a legal presumption, whatever
may be the facts, but is always a question for the consideration of the jury.
'*The appellant upon the trial of the action called as a witness T. H.
Hill, and asked him to state ' whether or not he was acquainted with the
general reputation of the respondent for honesty and integrity in the com-
munity where he resided, on or about the 29th day of December, 1883 ; '
to which question the counsel for the respondent objected on the ground
that it was incompetent and irrelevant. The court sustained the objec-
tion, and the defendant excepte'd. This is also assigned as error. After
making such ruling the court stated that it would permit the defendant to
show what * the plaintiffs general reputation was as to his being a violator
of the law about the time the arrest complained of was made.* This arrest
was for embeczlement. The object of the inquiry, as suggested by the
question, was apparent and proper. Mr. Sutherland says : * According to
the later authorities, the defendant may prove the general bad reputation
of the plaintiff, both to rebut the proof of want of probable cause, and in
mitigation of damages.' * The same facts which would raise a strong sus-
picion in the mind of a cautious and reasonable man against a person of
notoriously bad character for honesty and integrity would make a slighter
impression if they tended to throw a charge of guilt upon a man of good
reputation.* 8 Suth. Dam., 708, and authorities cited in note. The judg-
ment must be reversed." Gee v. Culver, 12 Oregon, 228; 11 Pac. Rep. (18SS).
See Gonzales ▼. Cobliner, 68 Cal,, 151; 8 Pac Rep., 697, and note, 700-705
(1886).
Malice may be inferred from want of probable cause. Heap ▼• Parish
(Ind.), 8N, B. Rep., 649.
The want of probable cause, without malice, is not sufficient to sustain
an action for malicious prosecution, and mcUice must be proved as a fact ;
for, ^ while it may be inferred from want of probable cause, its existence is
for the jury. It cannot be inferred from mere want of probable cause,
when disproved by other circumstances. Emerson v. Cochran, 111 Pa.
St., 619; 4 Atl. Rep., 498(1866),
ACTION FOB MALICIOUS PKOSECUTION. 21
Malieioualy suing out an attachment without probable oauae,
John Nelson sued out a writ of attachment and caused it to be levied
upon the goods of Sigvart O. Danielson exempt from levy and sale upon
an affidavit that Danielson was indebted to him in a certain sum then due»
and that he was about to leave the state with the intention of having his
effects removed from the state, when, in fact, a part of the indebtedness
was evidenced by a promissory note not then due, and Danielson was, at '
that time, seeking employment, and was making no preparations to leave
the state, which facts were known to Nelson when he sued out the writ,
aud Danielson had offered to give a mortgage to secure the indebtedness,
which Nelson had agreed to accept, but sued out the attachment before
the time agreed upon for the giving of the mortgage. It was held, in an
action for malicious prosecution at the suit of Danielson, thata jury would
be authorized to find that the creditor. Nelson, sued out the w^rit without
probable cause, and was actuated by malice, and that a verdict for $750
was not excessive. Nelson v. Danielson, 82 III., 545 (1876).
§ 13. The action regarded with jealoasy^— Actions for y
malicioas prosecations are regarded by law with jealousy.
Lord Holt said more than two hundred years ago that they
" ooght not to be favored but managed with great oaution.^'
Their tendency is to discourage prosecution for crime, as they
expose the prosecutors to civil suits, and the love of justice
may not always be strong enough to induce individuals to
commence prosecutions, when, if they fail, they may be sub-
jected to the expense of litigation, if they be not mulcted in
damages. Anciently it was doubted whether such action
would lie unless in a case of conspiracy.^ But it seems the
better opinion always was in favor of sustaining them either
with or without a conspiracy.^
§ 1 4. The action not favored In law.-^ In an action for a
malicious prosecution against one in the name of the state,
the averment on the part of the plaintiff that the complaint
was made without reasonable cause lies at the foundation of
the suit; and although it is in form a negative proposition,
it is incumbent on the plaintiff to establish it by satisfactory
proof. Suits by which the complainant in a criminal prose-
1 Stone V. Crocker, 41 Mass., 81 Swaine, Sid., i2i; Coze v. WiraU,
(1882); Knight v. Ctermain, Cro. Yelv., 105; Cro. Jac, 193; Arundell
Eli£.y70; Payne v. Rochester, Cro. v. Tregone, Yelv., 117; Saville v.
Eliz., 870; Henry v. Burstal, Ld. Roberts, 1 Ld. Raym., 874; Stone v.
Baym., 18a Crocker, 41 Mass,, 81 (18SS).
* Fitzherbert, N. B., 114; Daw v.
22 ACTION FOB MALICI0C7S PBOSBCUTION.
cution is made liable to an action for damages, at the suit of
the person complained of, are not to be favored in law, as they
have a tendency to deter men who know of breaches of the
law from prosecuting offenders, thereby endangering the
order and peace of the community.*/^
§ 15. The action to be carefully guarded and its trne prin-
ciples strictly adhered to.— Now, nothing is better settled
than that, upon proper facts, the action may be maintained.
And with the best reason; for what greater private injury can
any man suffer than to be arraigned for a felony or other
crime, exposed to the danger of a conviction, and subjected
to the expense, vexation and ignominy of a public trial; and
what act can more deserve the severest animadversion of the
law than the. prostitution of its process to the gratiiication of
malice at the expense of the innocent? But it should be care-
fully guarded and its true principles strictly adhered to, that
it may not, on the one hand, impede the free course of pub-
lic justice, nor, on the other, suffer malicious and causeless
prosecutions to escape its grasp.^ While the court should not
discourage actions for malicious prosecutions by establishing
harsh rules of evidence, or by the rigid principles of law, by
force of which a party may be deprived of an important
remedy for a real injury, at the same time, all proper guard
and protection should be thrown around those who, in obedi-
ence to the mandates of duty, may be compelled to originate
and carry on a criminal prosecution which may from any
cause terminate in favor of the accused.'
§ 1 6. Bights of persons to institute civil suits or crimi-
nal prosecutions. —
(1) In criminal matters every person, being interested in
the public order, has the right by law, upon probable cause,
' to make a complaint against an offender.'
(2) In civil matters every person believing himself to have
a claim against another, having probable cause for such be-
lief, has a right by law to sue therefor; subject only, if his
claim be adjudged false, to pay the costs of suit.*
iCloon V. (Jerry, 79 Mass., 201 *Hurd v. Sbaw, 20 111., 854 (1858).
OB59). 4 ciooley on Torts, 180 (1879).
2 Stone V. Crocker, 41 Mass., 81 *Cooley on Torts, 180 (18791
(1832). ^ \ /-
ACllON FOB MALICIOUS PROSECUTION. 23
(3) In baneruftcy matters any person, being a creditor or
having probable cause to believe himself such, may institute
proceedings against his debtor if he have probable cause to
believe that his debtor has committed an act of bankruptcy.^
§ 17. Who are liable to respond In damages for maliclons
prosecution. — The general rules of law governing the liability
of persons for injuries committed against the person and prop-
erty of others apply, of course, equally to the wrongs called
malicious prosecutions.
§18. Attorneys personally liable when. — The rule by
which attorneys may be held liable for malicious prosecutions
18 clearly laid down by Tinda!, C. J., in StocMey v. Harnidgej
3^ Eng. C. L. K, 276. It was there held that if the attorneys
who commenced the suit alleged to be malicious knew that
there was no cause of action, and, knowing this, " dishonestly
and with some sinister view, for some purpose of their own,
or for some other ill purpose which the law calls malicious,
caused the- plaintiff to be arrested and imprisoned," they were
liable. To protect attorneys beyond this would be authoriz-
ing those who are the most capable of mischief to commit the
grossest wrong and oppression. It is true that when the at-
torney acts in good faith in prosecuting a claim which his
client believes to be just, and is actuated only by motives of
fidelity to his trust, he ought not to be held liable, although
he may have entertained a different opinion as to the justice
or legality of the claim. When the client will assume to
dictate a prosecution upon his own responsibility, the attorney
may well be justified in representing him so long as he believes
his client to be asserting what be supposes are his rights, and
is not making use of him to satisfy his malice. But where
an uttorney submits to be made the instrument of prosecuting
and imprisoning a party against whom he knows his client
has no just claim, or cause of arrest, and that the plaintiff is
actuated by illegal or malicious motives, he is morally and
legally just as much liable as if he were prompted by his own
malice against the injured party. If he* will knowingly sell
himself to work out the malicious purposes of another, he is a
partaker of that malice as much as if it originated in his own
*
1 Stewart ▼. Sonneborn, 98 U. a, 187 (1878).
24 ACTION FOK MALICIOUS PKOeECUTION,
bosom. The attorney, then, cannot always justify himself
under the instructions of his client, no matter how positive
they may be. Nor is it always necessary to show a conspiracy
between the attorney and client, although some courts have
treated that as necessary. An attorney may so act under his
general employment to enforce a legal claim as to render
himself alone liable for a malicious prosecution or arrest. In
most of the states, it is ouly under particular circumstances
that a debtor is liable to be arrested; and if an attorney in
the course of the prosecution of a just claim, and without the
instruction or knowledge of his client, and without any rea*
sonable or probable cause for so doing, maliciously causes the
debtor to be arrested, it would be monstrous to hold that he
might shield himself from liability because his client had not
conspired with him to commit the wrong. Where the attor-
ney chooses to act upon his own responsibility under his gen-
eral retainer, and without specific instructions, and caused
the debtor to be arrested^ the act becomes his own rather than
his client's, and he must see to it that he does not proceed
without reasonable or probable cause, and especially where he
is prompted by his malice. It will not do to turn the injured
party round to seek his remedy against the client, who may
be a thousand miles off and in a foreign country or distant
jurisdietion, and who may not have directed the arrest, and
may be entirely innocent of any wrong.^
Applications of thb law. —
Liability of attameya for suing out a vyrit of ne sxeat.
Jacob Alberts and others, of Baltimore^ Md.» had a claim against Francis
Dunlap, and thej put it into the hands of Marsh & Wright, as attomejrs,
for collection. Upon their own responsibility, and without any sp^ial
instructions from their clients, the attorneys falsely and maliciously,
and without having any reasonable or probable cause for so doing, sued
out a writ of ne exeat , and falsely and maliciously caused the arrest of
Dunlap. After his release, Dunlap brought an action for malicious prose-
cution against the attorneys for suing out the writ, etc. On demurrer to
the declaration they were held liable.
Caton, J. : '* It cannot and ought not to be said, if it be established by
proof that the defendants sued out the writ without a cause which would
iBumap y. Marsh et aL, 13 111., App., 244 (1886); Peck t. Choteau,
585 (1852); Staley v. Turner, 21 Mo. 91 Mo., 138 (ISStt).
ACTION FOB MALIOIOUB PBOSEOUTION. 25
justify them in so doing, and from motives of malice, and for the purpose
of vexing and harassing the plaintiff, and caused him to be arrested
thereon, the defendants are not. liable for the injury thus wantonly in-
flicted. It must be a just reproach of the law to hold that attorneys oould
thus act with impunity." Bumap v. Dfarsh et aL, 18 111., 535 (1852).
§ 19. The maliee of the client does not render the attor-
ney liable. — The fact that the client is actuated by malice,
and the attorney knows it, cannot make the attorney liable;
for malice alone would not even make out a case against the
client. If there is probable cause for the proseiition, then
the suit for malicious prosecution must fail, th(A/h malice be
clearly shown ; and it must follow that knowlebfe on the part
of the attorney that the client is actuated ramalicious mo-
tives is not sufficient to make the attornfv Jjiw* But if the
attorney knows that the client is actuaXed W imice, and also
knows that there is no cause for the\mp^utii<>^ the dictates
of common honesty require that be klU^ should be made ac-
countable. As said in an lUinoi^^^^r' ^' Where the client
will assume to dictate a prosecutjfcm upon his own responsi-
bility, the attorney may well JbeVjusmlled in representing him
so long as he believes his cl^t U^Jj/k asserting what he sup-
poses are his rights, and is^hocmaking use of him to satisfy
his malice. But when m iup^ey submits to be made the
instrument of prosecutinE^iib/imprisoning a party against
whom he knows his client nalfjih:) just claim or cause of ar-
rest, and that the plaintiff is actuated by illegal or malicious
motives, he is morally and legally just as much liable as if he
were prompted by his own malice against the injured party.''
The rule is more favorably stated for the defendant in Massa-
chusetts,'where the following conclusion is reached: '^In
order, therefore, to charge an attorney upon this ground [a
conspiracy to bring a groundless suit], it must not onl}^ appear
that there was an agreement to bring an action which was in
fact groundless, and which the attorney supposed to be ground-
less, but that it was agreed to bring an action understood by
both parties to be groundless, and brought as such." We are
not prepared to go further than is indicated in the extract
from the Illinois case, and think it asserts a salutary and
reasonable rule.'
1 Bumap V. Marsh, 18 IH., 588. 'Peek v. Chouteau, 91 Mo., 188;
« Bicknell v. Doriou, 16 Pick., 478. 8 a W. Rep., 77 (1887).
26 action fob mauoious pbosecution.
Apilication of the law. —
Attorney's liability for maXidous prosecution.
In an action for malicious prosecution, in which Charles P. Chonteau
and John K. Glover were defendants, judgment was for the defendants,
and the plaintiff appealed. The substantial averments werp that on the
18th July, 1882, the plaintiff was indicted upon a charge of fraudulent
conspiracy with others to defraud Alice Livingston and others interested
in a corporation known as the Windsor Hotel Company ; that he was ar-
rested on the 26th July, 1882, and tried and acquitted on the 2l8t Decem-
ber, 1883, in the court of criminal correction of St. Louis; that Chouteau
was a member of the grand jury which returned the indictment, and
Glover assisted in its procurement : that the defendants maliciously and
without probable cause procured the indictment, and caused the plaintiff
to be arrested and prosecuted thereunder. The answer of Chouteau was
a general denial, with the averment that at and prior to the alleged griev-
ances the general reputation of the plaintiff for honesty and integrity was
bad. Glover made a like answer, with the additional averment that what-
ever he did was done as a duly enrolled and practicing attorney, and not
otherwise.
In affirming the judgment the court say : *' In this case it is to be ob-
served that, in so far as it can be said, in any view of the case, that
Mr. Glover acted outside of or beyond his professional capacity, the in-
structions given are full and favorable to the plaintiff, and no other instruc-
tion should have been given upon that branch of the case. The [refused]
instructions do not predicate a right to recover upon the fact that Mr. Glover
knew that the action was groundless, and that he knew that Chouteau
acted in the matter from malicious motives, but they say that if he knew,
' or by the exercise of reasonable diligence might have known, that there
were no facts sufficient to constitute probable cause,* etc. The attorney
has a right to advise and act upon the facts which he gets from his client,
and it is not his dtity to go elsewhere for information. According to these
instructions an attorney could not with safety advise the arrest of any
criminal until he had exhausted reasonable diligence in the search for in-
formation as to whether a crime had been committed. He would stand on
no other or different ground from that of the client. The statement of
such a proposition is enough to condemn it. We state again that the at-
torney lias a right to advise and act upon such information as the client
' reveals to him. Nothing short of complete knowledge on the part of the
attorney that the action is groundless, and that the client is acting solely
through illegal or malicious motives, should make him liable in these actions.
As said by Mr. JuE^tice Bradley in Campbell v. Brown, 2 Woods, 850 : ' If at-
torneys cannot act and advise freely without constant fear of being har-
assed by suits and actions at law, parties could not obtain their legal
rights.*** Peck v. Chouteau, 91 Mo., 188; 8 S. W. Rep., 577 (1887).
§ 20. Materiality of malice In actions for prosecatlng
salts In the name of third persons without their anthor-
ity, — It is undoubtedly true that actions for arresting and
AOTION FOB MAUCIOIJS PBOBEOUTION. 27
imprisoning a person without authority from the party in
whose name and favor the action is brought may well be
maintained without proof that the defendant was actuated
by malice. The gist of the action in such cases is not malice,
but the want of authority. It has therefore been held that,
though a party supposed he had authorit}', and acted upon
that supposition, still, if the defendant suffers injury from the
prosecution of the unauthorized suit against him, he may
maintain an action for his actual damages, but for nothing
more. And this constitutes the distinction between an action
for commencing a suit without authority and an ordinary ac-
tion for malicious prosecution. The former will lie upon proof
of want of authority alone, in the absence of malice, and even
where a good cause of action existed, for the amount of dam-
ages actually incurred; but the latter cannot be maintained
without proof of malice and want of probable cause.^ But it
by no means follows that evidence of actual malice is incom-
petent in an action for commencing and prosecuting a suit
without authority. To exclude such evidence would be equiv-
alent to saying that an act done innocently and without evil
design inflicted no less injury upon a party than the same act
committed wickedly and with a deliberate purpose to insult
and degrade him.'
§21. Criminal Informants protected — Honest belief or /
strong grounds of suspicion. — A citizen having reason to be-
lieve, or entertain a strong suspicion, upon information or
popular report, that a crime has been committed, must be per-
mitted to appear and direct the attention of the grand jury
toward its investigation^ without exposure to the peril — in
case of a failure of conviction, or it turning out that the
information upon which he acted was not founded in fact —
of being held liable for malicious prosecution, and of being
mulcted in ruinous damages. The criminal law does not en-
forx^e itself. It requires the agency of some informant to put
it in execution. There would be little of efficiency of execu-
tion of much of our criminal law, as, for instance, the law
for the suppression of gambling, the unlawful sale of intoxi-
.iBondT. Chopin, 8 Met., 81(1844); ^ Smith t. Hjndman, 64 Mass.,
Smith T. Hyndman, 64 Mass., 654 654(1852).
(1858).
28 ACTION FOB MALICIOUS FKOSECCJTION.
eating liquors, the keeping of bouses of ill-fame, and the like,
if those only might move with impunity in the matter of their
enforcement who had actual cognizance of the infraction of
the law. Such persons, from motives of one kind or another,
are rarely found to be voluntary helpers in the administration
of such laws. Whatever aid comes from that source is, for
the most part, an enforced one, under the compulsory power
of legal process, to appear and testify. All that is required
is an honest belief, or strong ground of suspicion, of the
plaintiff's guilt, and a reasonable ground of the belief or sus-
picion, and that may be upon information from others as well
as from personal knowledge.^
Appucation of the law.—
(1) Proaecution for feiony -^ Prisoner diseharged^ Action for malidouB
prosecution not sustaiTied.
In Barlingame t, Durlingame, to maintain hie action the plaintiff
proved that March 7, 1825, the defendant caused a warrant against the
plaintiff to be issned on the defendant's oath by a justice, upon which,
the plaintiff being arrested and brought before the justice, the defendant
was sworn and testified circumstantially to the commission of the crime.
The plaintiff then went into his defense, which consisted of proof to show
that the defendant was very infirm at the time he alleged the offense to
have been committed ; that he was weak and nearly blind, forgetful, and
his mind very much impaired by age, so that he was liable to be deceived,
and could not distinguish as to what he had sworn at the distance he repre-
sented himself as standing. The defense occupied three or four hours, and
counsel summed up on the part of the accused, who was then discharged
by the justice.
The plaintiff also proved that after the acquittal the defendant insisted
to several persons who were present at the hearing before the magistrate,
that though the plaintiff had been acquitted, the charge and what he had
sworn were true, and threatened further proceedings^
The judge decided that calling witnesses and going fully into the defense
was an admission of probable cause, and that the count for a malicious
prosecution was not sustained. And he nonsuited the plaintiff.
Woodworth, J. : On the count for malicious prosecution (there was a
count for slander), I think the action cannot be sustained. We cannot say
there was a want of probable cause, although it may satisfactorily appear
that the defendant, owing to defective sight, advanced age and bodily in-
firmity, was mistaken. There is no sufiloient reason for believing that he
1 Harpham et al, v. Whitney, 77 et al., 4 Cush,, 217 (1849); Foshay ▼.
lU., 82 (1875); Murray v. Xiong, 1 Ferguson, 2 Denio. 617 (1846),
Wend., 140 (1828); Baoon v. Towne
ACTION FOR MALICIOUS PROSECUTION. 29
•
was not persuaded of the truth of the facts related by him under oath ; and
though the plaintiff was acquitted, it is possible the defendant may have
been corroet. At any rate his statement may be considered as probaUe
cause. Buriingame v. Burlingamct 8 Cow., 141 (1828), died in ON. H., 84;
81 Am. Dec., 221 ; 6 T. & C, 667; 8 T. & C, 265 ; 2 Wend., 426; 66 N. Y.,
456; 4 Hun, 801 ; 48 Barb., 42; 0 L. Q P. Ckx, 880.
(2) Prosecutor liable vohere complaint states no offense*
Jease Ryan and Annie, his wife» sued George Crawford for damages for
malicious prosecution.
Defendant was the owner of premises on North Eleventh street, and
plaintiff was the lessee of the adjoining premises. The trouble between
the parties arose over a clothes-line and a clinging vine. Defendant threw
the line and vine off the lattice work on top of the division fence, and Mrs.
Ryan put them back again. Crawford then went to Magistrate Myers'
office, and made affidavit *' that one Annie Ryan has destroyed part of my
property, and further deponent saith not.'* The magistrate thereupon
issued his warrant against Annie Ryan for '*M. mischief," and she was
arrested and held to bail to answer at court. Not obtaining bail, she re-
mained in custody part of one afternoon, the whole of the night, and part
of the following day. The bill was ignored by the grand Jury.
Upon the trial the court declined to charge* as requested by defendant's
counsel, "that, no crime or misdemeanor having been charged in the affl-
davit» the fault was that of the magistrate, and the verdict should be for
the defendant." In the course of the general charge the court said: **If
there was no probable cause, you can infer malice. ... I see myself
no probable cause to Justify an arrest for malicious mischief."
Judgment for $t,000; defendant took a writ of error.
Pkb Curiam. The law was correctly declared. The facts were properly
submitted to the jury. Judgment affirmed. Crawford v. Ryan, 7 AtL
Rep., 745 (1887).
§ 22. The snfflelency of the complaint or indictment in a
criminal prosecntlon as a basis In an action for malicions
prosecntion. — There are authorities to the effect that an ac-
tion for malicious prosecution will not lie for instituting a
prosecution before a court or magistrate having no jurisdic-
tion to entertain it.^ Other authorities hold that in such case
the action will lie.'
There is some authority for the proposition that, to serve
as a basis for the action, the prosecution must be by a suffl-
1 Bizby V. Brundige, 2 Gray, 120 ; and citing from Smith v. Cattle, 2
Marshall V. Betner, 17 Ala., 832. Wile., 876, that "the sting of all
> Morris v. Scott, 21 Wend., 281 ; these kinds of actions is malice and
Hays V. Younglove, 7 B. Hon., 545; falsehood, and the injury done in
the former of the cases relying upon pursuance thereof."
30 ACTION FOB MALICIOUS PBOSBCUTION.
cient indictment or complaint.^ The weight of the authorities
is, however, the other, way, and good sense and reason are
with these authorities; for when one maliciously, and without
probable cause, subjects another to a criminal prosecution, the
injury is the same whether it is instituted on a false statement
of facts or a false conclusion of law. If the reason for the
action lay solely in the danger of punishment in which the
man is put, it might be otherwise.^ But the action lies be-
cause of the disgraceful imputation put upon him, the injury
caused by his arrest, and the trouble and expense he is put to
in defending himself. Of course the complainant will not be
liable if he does not procure the criminal process to issue; as,
if he files a complaint in a civil action, and the magistrate
thereupon, of his own suggestion, and without being moved
to it by the complainant, issues a criminal process on the com-
plaint, the complainant will not be liable, for the act is that
of the magistrate alone. But, if the complainant procure the
process to issue, he ought to be responsible for all the conse-
quences, even though the facts stated in his complaint do not
justify it.'
Application of the law. —
(1} Complaint showing no offense punishable by law.
On the trial of an action for malicious prosecution in procuring plaintiff
to be arrested for a criminal offense, a motion was m^e by the defendant
for judgment on the pleading. It was denied, and this is alleged as error.
The answer sets forth a copy of the complaint made by this defendant in
the criminal prosecution, and the reply admits it to be a copy. That com-
plaint, made to the municipal court of Minneapolis, in terms charged this
plain tifiP with having wilfully, unlawfully, wrongfully and with intent to
defraud this defendant, and without his consent, earned away and con-
1 Leigh V. Webb, 8 Esp., 165, in dictment be good or bad, the plaint-
which case the information con- iff is equally subjected to the dis-
tained no direct charge, in terms, of grace of it, and put to the same
a crime, and the facts stated in it expense in defending himself against
showed only a cause of action in it." Wicks t. Fentham, 4 TermR.,
trover. 247; Collins ▼. Love, 7 Blackf., 416;
s Chambers v. Robinson, 2 Strange, Ewing v. Sanford, 10 Ala., 605 ; For-
691; Jones v. Gwynn, 10 Mod., 148; rest v. Collier, 20 Ala., 175.
Pippet V. Heam, 5 Bam. & Aid., 'Potter v. Gjertsen, 87 Minn., 886;
634, the court in this case saying : 84 N. W. Rep., 746 (1887).
** For in either case, whether the In-
ACTION FOR MALICIOUS PBOSECUTION. 31
cealed certain personal property, having preriouslj conveyed the same to
this defendant and another hy his deed of chattel mortgage, which was
attached to and made part of that complaint, the mortgage being in full
force and the debt unpaid, contrary to the statute, etc. What was called
a mortgage In, and attached to, the complaint, was not a mortgage, but a
contract for a conditional sale by this defendant and his partner to this
plaintiff; the title to remain in the former till the price should be paid, and
the possession to be in the latter till default in payment, or till the prop-
erty should be removed from a certain place without the consent of the
former. Taking the complaint and the instrument attached to it together,
they showed no act punishable as a crime. The defendant, in support of
his claim that the court erred in denying his motion for judgment on the
pleadings, insists on this proposition : that an action for malicious prosecu-
tion will not lie for instituting a criminal prosecution by a complaint
which does not show an offense committed. On appeal QilfiUan, C. J.,
held that the trial court was right in denying the motion. Potter v. Gjert-
sen, 37 Minn., 886; 84 N. W. Rep., 746.
(3) 27ie aetion lies wften the complaint upon which the prosecution was
commenced did not state a criminal offense,
•
Bell sold Keepers a tract of land and a barn, which Keepers was to move
on the land, and occupy and maintain as a canning factory, and was to
pay, as the purchase price therefor, |40 per month until the premises were
paid for. Keepers made default in the payments, and desired to remove
from the property. The contract provided that upon a failure to make
payments the contract might be terminated, Keepers to forfeit all pay-
ments made as liquidated damages. The contract was terminated, and
Keepers moved from the premises all the machinery and fixtures placed
thereon by him, and also partitions and sheds attached to and made a part
of the barn. While this removal was going on. Bell filed a complaint, and
procured his arrest, and afterwards failed to appear and prosecute the ao-
ti<Mi. Keepers was discharged. He then brought an action for malicious
prosecution. Verdict in favor of Keepers for $500. Bell prosecuted a
writ of error.
Clogston, CL: The prosecution in question was commenced by Bell
upon the following complaint :
*' State of Kansas, County of Wyandotte — ss, : Simeon B. Bell, of law-
ful age, being first duly sworn, says that at the county of Wyandotte and
state of Kansas, and on or about the 24th day of March, 1885, one Keepers
did unlawfully and wilfully enter into and destroy personal property, and
trespass upon the premises of the affiant, contrary to statute in such case
made and provided. S. B. Bell."
Upon which a warrant was issued substantially following the complaint,
and it is ndw claimed that this complaint does not state a criminal offense,
and for this reason plaintiff insists that no action for malicious prosecution
can be maintained for the arrest made thereunder. This is no longer an
unsettled question in this state. This court has repeatedly held that it
c: uld not permit a complainant, after procuring a warrant to issue on his
32 ACTION FOE MALICIOUS PROSECUTION.
complaint, to say, in answer to a charge of malicious prosecution, that the
complaint charges no crime. A void process procured through malice, and
without probable cause, is even more r^>peliensible» if possible, than if it
charged a criminal offense. The wrong is not in the charge alone, but
more in the object and purposes to be gained, and the intention and motive
in procuring the complaint and arrest. The contents of the complaint,
when maliciously made without good cause, are of but little consequence,
and can give no protection. Parli v. Reed, 80 Kaxu, 534; 2 Pac. Rep., 685;
Bhaul V, Brown, 28 Iowa, 37; Bauer v. Clay, 8 Kan., 580; Bell v. Keepers,
87 Kan., 64; 14 Pac Rep.» 548 (1887).
§ 23. Will the action lie for malicioasly^ etc.^ prosecnting
a clTil suit} — Here the decisions of American courts are not
in unison, but the more generally approved doctrine seems to
be that, for the prosecution of a civil action maliciously and
without reasonable or probable cause, to the injury of a party,
he mav maintain an action for damages, though there was no
interfe;ence with his person or property.^
§24. Will the action lie? — The subject continued — A
eonclnsion flrom all the aathortties.— Mr. John D. Lawson,
in an able article on this subject in the American Law Beg-
ister,' says: "We have now reviewed all the American cases
pro and con, and the weight of authority appears to be against
the right of action for the unfounded and malicious prosecu-
tion of an ordinary civil action. With the majority are all
but one of the text^writers. We have cited Swift, Townsend,
Addison and the editors of the American Leading Cases, who
follow the English adjudications; Mr. Weeks, who limits the
right to ^ extremely vexatious suits where special damage has
been actually suffered ; ' and Judge Cooley , who discourages the
remedy without positively denying the right On the other
side is Mr. Hilliard, who evidently favors the action, but un-
fortunately relies upon cases which do not sustain it at all.
Of the thirteen cases we have just examined, three — Taylor
1 Ck)oper v. Armour, 43 Fed. Rep., v« Fennell, 18 Bash (Ey.), 620 (1878);
215 (1890); Pangburn v. Bull, 1 Pope t. Pollock, 46 Ohio St, 867; 21
Wend. (N. T.), 845 (1828); Whipple K. £. Bep., 866 (1889); McOardle ▼.
T. FuUer, 11 Ck>DD., 562(1836); Cloe- McGinley, 86 Ind., 588 (1882);
8on V. Staples, 42 Vt., 209 (1869); McPherson v. Runyon, 41 Minn.,
Eastin v. Bank, 66 Cal., 128; 4 Pac. 524; 48 K. W. Rep., 892(1889); Smith
Rep., 1106 (1884) ; Allen v. Godman, v. Smith, 20 Hun (N. T.), 555.
189 Mass., 186 (1885); Marbourg ▼> 3 ^ew Series, toL 21, pi 868 (1882).
Smith, 11 Kan., 654 (1873); Woods
AOnON FOR ICAUCIOUS PROSECUTION. 33
V. Wilson (Coxe, 362), in New Jersey; Thomas v. Rouse (2
Brev., 75), in Sonth Carolina; and McNamee v. Minke (49 Md.
122) (1878), in Maryland — hold that the action is not sustain-
able because it is not; three — Woodmansie v. Logan (1 Penn.,
68) and Potts ». Imlay (1 South., 330), in New Jersey, and
Ray V. Law (1 Pet. C. C, 207), in the federal court — that it
will not lie because the defendant has his costs, which in En-
gland is considered a sufficient remedy. In the New York
case of Vand^izer v. Linderman (10 Johns., 106), the opinion
of the court is obiter^ and at the same time far from clear; and
in the Kentucky case of Coxe v. Taylor (10 B. Mon., 17), the
defendant complaioed of the malicious issuing of an injunc-
tion which had caused him special damage. In but five cases —
Panghum v. Bxdl (1 Wend., 346), in New York; Whipple v.
Fuller (11 Conn., 582), in Connecticut; Closson v. Staples (42
VI, 209), in Vermont; Marburg v. Smith (11 Kan., 354), in
Kansas, and Woods v. FinneU (13 Bush, 629), in Kentucky — do
the courts recognize that here there is a wrong for which there
should be a remedy. But while the weight of authority denies
the action the weight of reason allows it. We have set out
at length the argument of the courts pro and con^ and no one
can read them without being struck with the weakness of the
position assumed by the majority of the American courts that
have been called upon to deal with this question, and of the
writers who have stated the law as they understood the de-
cisions. Take away the reason upon which the English cases
stand, viz., that the defendant's damages are assessed to him
by his judgment for costs, and what remains to stand in the
way of a remedy by action ? Nothing at all. The English
cases admit the wrong ; they do not deny that, for any sub-
stantial and special damage outside of the costs of the de-
fense, the defendant may recover in this form. Therefore if
his goods have been attached, or his person has been impris-
oned, they allow a. recovery; but when nothing of this kind
has occurred they say to the debtor, ' the law does not fail to
recognize that you should be recompensed for the damages
you have suffered in resisting a malicious and unfounded suit,
and that your prosecutor should be made to reimburse you.
If yon have been damaged beyond the ordinary costs of a
8
34 ACTION FOB HAUCIOUS PBOSEOUTION.
law-suit, this is the tribanal to which yoa may appeal; but
if you have been damaged to that extent and no more, you
cannot come here, for parliament has declared that these
costs shall be assessed to you at the time you obtain your
verdict, and in the form of a judgment against the plaintiff
in the same suit.' But there are few, if any, American courts
that can address the suitor in these terms. In England the
allowance of costs is, in the majority of cases, and as effectually
as can be accomplished under a general rule, a complete sat-
isfaction to a successful defendant. The costs taxed toliim in-
clude his attorney's charges for preparing the case for trial in
all its parts, the fees of the witnesses and the court officials,
and even the honorarium of the barrister who conducted the
case in court. The American sj^stem, as carried on in most
of the states, gives to the defendant little or nothing beyond
the costs of the suit. The English decisions have, therefore,
no applicability here, and can only be followed by our courts
to a ridiculous result. Two further arguments against the
action remain, neither of which can stand an examination.
It is said that, if such suits are generally allowed, litigation
will become interminable, for every unsuccessful action will
be followed by another, alleging malice in the prosecution of
the former; and, secondly, that if the defendant may sue for
damages sustained by an unfounded prosecution, the plaintiff
may equally bring an action when the defendant makes a
groundless defense. Waterer v. Freeman^ Hobart, 205 (1640);
Potts V. Imlay^ supra. In answer to the first objection it is
enough to say that the action will never lie for an unsuccessful
prosecution unless begun and carried on with tnalice and
without reasonable cause. With the burden of this difficult
proof upon him the litigant will need a very clear case before
he will be willing to begin a suit of this character. The
second argument fails to distinguish between the position of
the parties plaintiff and defendant in an action at law. The
plaintiff sets the law in motion. If he does so groundlessly
and maliciously he is the cause of the defendant's damage.
But the defendant stands only on his legal rights. The plaint-
iff having taken his case to court, the defendant has the privi-
lege of calling upon him to prove it to the satisfaction of the
AanON FOR MALICIOUS PBOSEOUTION. 35
jadge or jury, and he is guilty of no wrong in exercising this
privilege." ^
§ 25. Distinction between actions for criminal prosecu-
tions and cItII snits- — Strong, J. : ^' It is abundantly settled
that no suit can be maintained against an unsuccessful plaint-
iff or prosecutor, unless it is shown affirmatively that he was
actuated in his conduct by malice or some improper or sinister
motive. Malice is essential to the maintenance of any such
action, and not merely to the recovery of exemplary dam-
ages. Notwithstanding what has been said in some decisions
of a distinction between actions for criminal prosecutions
and civil suits, both classes at the present day require substan-
tially the same essentials. Certainly an action for instituting
a civil suit requires not less for its maintenance than an action
for a malicious prosecution of a criminal proceeding." ^
§ 26. The action lies for maliciously and without prob-
able cause instituting and prosecuting civil suits.— Will the
pr(^ecution of a civil suit which results in a verdict for the
defendant, where the same is prosecuted maliciously and
without probable cause, afford ground for an action in the
nature of a suit for malicious prosecution ? The more common
causes for actions for malicious prosecution are groundless
and malicious prosecutions of criminal charges. But that ac-
tions of this kind can be maintained where there has been an
unjustifiable and malicious seizure of the property of the com-
plaining party, as well as of the person, there is no question.
Whether or not such an action may be maintained where
there has been no deprivation of liberty, or of the possession,
use or enjoyment of property, has been the subject of much
discussion and of contrary holdings. It appears that in Eng-
land, by the common law, prior to the statute of Marlbridge,
52 Hen. III. (1259), actions of this character were allowed,
but since the passage of that statute, which gave the success-
ful defendant judgment for costs against the plaintiff, the
right to maintain such actions has been uniformly denied, it
iJohn D. Lawson in American & P., 486; Burhans v. Sanford, 1^
Law Register, N. a, vol 21, 868 (1882)l Wend. (N. Y.), 417 (1838) ; Cotton v.
'Nicholas ▼. GoghiU, 4 Barn. & Huidekoper, 2 Pa. (P. & W.)St., 14»
C, 21; Stewart ▼. Sonnebom, 96 U. (1880X
a, 187 (1878); Webb ▼. HiU, 8 Carr,
36 ACTION FOK MALICIOUS PROSECUTION.
being held that if one prosecutes an ordinary civil action
against another maliciously, and without reasonable or prob-
able cause, an action for the resulting damage is not main-
tainable. So, too, in this country, many decisions of like
tenor have been made. The courts have said that courts of
law are open to every citizen, and that the costs which the
defendant gets are a compensation for the wrong. If every
suit may be retried on an allegation of malice, the evil would
be intolerable, and the malice in each subsequent suit would
be likely to be greater than in the first; and that, if a defend-
ant ought to have damages upon a false claim, then the plaint-
iff ought to have damages on a false plea, which would make
litigation interminable.^
§ 27. Upon what ground the right to maintain such suits
is placed. — Where such suits have been maintained, the right
has been placed upon the ground that taxable costs, including,
as in most states, but the fees of witnesses and otiicers of
court, afford a very partial and inadequate remuneration for
the necessary expenses of defending an unfounded suit, and
no remedy at all to repair the injury received. It is upon
this principle, in part, that actions have even been sustained
for malicious criminal prosecutions, in which no costs are taxed
in favor of the accused. Where an action is brought and
prosecuted maliciously, and without probable cause, it is an
^buse of legal process, and the plaintiff asserts no claim in
respect to which he has any right to invoke the aid of the
law. It is A wrong to disturb one's property or peace; and
to prosecute one maliciously and without probable cause is
to do that person a wrong. The common law declares that
for every injury there is a remedy, and to deny remedy in
1 Pope V. PoUock, 46 Ohio, 867 ; 21 Watts, 115; Thomas v. Rouse, 2
N. E. Rep.. 856(1889); Beauchampe Brev., 75; Ray v. Law, Pet C. C,
V. Croft, Keifw., 26; Fitzh. Nat. 207; Potts v. Imlay. 4 N. J. Law,
Brev.,429;lBac. Abr., 141;Savii V. 880; McNamee ▼. Hinke, 49 Md.,
Roberts, i Salk., 14; Bull. N. P., 11 ; 122; Muldoon v. Rickey, 103 Pa. St.
Parker v. Langley, Gilb. K B., 163; 110; Wetmore v. MeUinger, 64 Iowa,
Goslin V. Wilcock, 2 Wils., 305; 1 751; 18 N. W. Rep. 870; Bitz v.
Amer. Lead. Cas., 261, note; Cooley, Meyer, 40 N. J. Law, 252; BCayer ▼.
Torts, 189 ; Taylor v. Wilson, 1 N. J. Walter, 64 Pa. St 283 ; Pope v. Pol-
Law, 362; Woodmaosie v. Logan, 2 lock, Am. Dig;, 1889-2398.
N. J. Law, 68; Kramer v. Stock, 10
ACTION FOB MALICIOUS PB08ECUTI0N. 3T
such case would violate this wholesome principle. The* bur-
den, of establishing both malice and want of probable cause
will prove a sufficient check to reckless suits of this character.
When the plaintiff sets the law in motion, he is the cause, if
it be done groundlessly and maliciously, of defendant's dam-
age, and the defendant but stands upon his legal rights when
he calls upon the plaintiff to prove his case to the satisfaction
of judge and jury.^
§28. The doctrine that the action will lie— The law
stated by Boss^ J.^ (California). — "The weight of the authori-
ties, American as well as English, is against the maintenance
of an action for the malicious prosecution of a civil action in
which no process other than the summons was issued, and so
are most of the text-writers. The question has never been de-
termined in this state, and we are therefore at liberty to adopt
the rule that we think is founded on the better reason. The
point was made in the case of Smith v. George^ reported in 52
CaL, 344, but was not decided ; the court holding that it was
unnecessary to decide it, but remarking that ^ the adjudged cases
in England and America are conflicting upon the question, and
depending to a considerable degree, it would seem, upon the pre-
vailing statutory provisions as to the recovery of costs by the
defendant upon the determination of a civil action in his favor.'
The English cases which deny the right to maintain the action
stand upon the ground that the successful defendant is ade-
quately compensated for the damages he sustains by the costs
allowed him by the statute. Those costs, it seems, include the
attorney's charges for preparing the case for trial in all its
parts, the fees of the witnesses and the court officials, and
even the honorarium of the barrister who conducted the case
•
iPope ▼. Pollock, 46 Ohio, 867; Hoyt v. Macon, 2 Colo,, 113; Payne
21 N. R Rep., 356 (1880); Am. Dig., v. Donegan, 9 III App., 566; MoCar-
188^2393; Vanduzor v. Linderman, die v. McGinley, 86 Ind., 588; Juch-
10 Johns., 106; Pangburn v. Bull, 1 ter v. Boehm, 67 Ga., 584; Lawrence
Wend., 845; Whipple v. Fuller, 11 v. Hagerman, 56 III, 68; Atwood v.
Conn., 582; Cloeson v. Staples, 42 Monger, Style, . 378. See, also, an
Vt., 200; Marbourg v. Smith, 11 able review of the subject by John
Kan., 554; Bigelow, Torts (2d ed.), D. Lawson, Esq., of the St Louis
71; Smith v. Smith, 56 How. Pr., bar. 21 Amer. Law Reg., 281.
816; Bump V. Betts, 10 Wend., 421; ^Eastin v. Bank of Stockton, 66
WMds V. Finnell, 13 Bush, 628; Cal., 128; 4 Pac. Rep., 1106 (1884).
■28 ACTION FOB MALICIOUS FB08ECDTI0N.
qh cqurt. The reason upon which the English rule rests would
tnot, therefore, seem to apply here, where the costs recoverable
<^nnder the statute are confined to much narrower limits. Under
"Our system the defendant may be subjected, or he may subject
himself, to expenses not recoverable, even if the suit termi-
nated in his favor; but of this he has no legal ground to com-
plain when the suit is brought and prosecuted in good faith,
because, as said in Closaon v. Staples^ 42 Yt., 209 :
^ ' It is tho ordinary and natural consequence of a uniform and weU-regu-
lated system to which aU parties in civil actions are required to conform.
But when the action is brought and prosecuted maliciously, and without
reasonable or probable cause, the plaintiff asserts no claim in respect to
^hich he had any right to invoke the aid of the' law. In such cases the
plaintiff, by an abuse of legal process, unjustly subjects the defendant to
•damages which are not fully compensated by the costs he recovers. The
plaintiff, in such case, has no legal or equitable right to claim that the rule,
of law which allows a suit to be brought and prosecuted in good faith with-
out liability of the plaintiff to pay the defendant damages, except by way
and to the extent of the taxable costs, if judgment be rendered inliis favor,
should extend to a case where the suit was maliciously prosecuted without
probable cause. But where the damages sustained by the defendant in
defending a suit maliciously prosecuted, without reasonable or probable
cause, exceed the costs obtained by him, he has, and of right should have,
a remedy by action in the case.*
^^ Two other objections are made to the maintenance of the
action: JFlrst, the claim that if such suits are allowed litiga-
tion will become interminable, because every unsuccessful
action will be followed by another, alleging malice in the
prosecution of the former; eind secondy that if the defendant
may sue for damages sustained by an unfounded prosecution,
the plaintiff may equally bring an action when the defendant
makes a groundless defense; and are well answered in the
article already alluded to:
'* * To the first objection it is enough to say that the action will never lie
for an unsuccessful prosecution unless begun and carried on vnth malice
and unthout probable cause. With the burden of this difficult proof upon
him, the litigant will need a very clear case before he will be willing to
begin a suit of this character. The second argument fails to distinguish
between the position of the parties plaintiff and defendant in an action at
law. The plaintiff sets the law in motion; if he does so groundlessly and
maliciously, he is the cause of the defendant's damage. But the defendant
stands only on his legal rights, — the plaintiff having taken his case to court,
the defendant has the privilege of calling upon him to prove it to the satis-
faction of the judge or jury, and he is guilty of no wrong in exercising this
privilege.' " *
ACTION FOE MALICIOUS PIM)SECUTION. 3*
§ 29. Bales of law gOTerning the aetion. — The action of
malicioas prosecution to recover damages for a private
wrong — that is, for the institution of a civil suit with malice
and without probable cause — is governed by the same rules
of law as the action where the prosecution complained of is
of a criminal character.^
§ 30. An arrest and holding to bail not Indispensably
necessary. — From an examination of the leading authorities
in England and America it appears that an arrest and holding
to bail are not indispensably necessary in order to maintain
an action for malicious prosecution. The action has been sus-
tained in cases where there was neither an arrest nor bail ;
and, when it is considered that malice and the want of prob-
able cause are the foundation of the action, it would seem on
principle to reach cases where the injury would be equally
great although the proceeding did not require an arrest or
bail2
§ 31. Express malice to be averred and proved. — The ex-
press malice and grievance must be laid in the declaration and
proved. And it seems that it is not enough to allege that the
defendant brought an action against the plaintiff with malice
and without cause, by which he put the plaintiff to great
charges.' It is to be inferred from this rufe that something
more than a mere allegation that a suit was commenced mali-
ciously and without probable cause must be stated, as the gist
of this action arises from some evil practice, as the abuse of
legal process or malice in him who so prosecutes/
Application op the law. —
An arrest and hail not indispensably necessary to maintain the action.
Pangbam sued BuU for a malicious prosecution. He declared that Bull,
oo March 80, 1826, not having any reasonable or probable cause of action
whatever against the plaintiff, which he, the defendant, weU knew, pro-
cured a summons from a justice, under the $50 act, against the plaintiff,
returnable April 8th, then next, to answer the defendant in a plea of tres-
1 Collins et aL ▼. Havte, 60 Ul., Eeynolds v. Kennedy, 1 Wils., 282;
858(1869). Pangburn v. Bull, 1 Wend., 845
> Pangburn t. Bull, 1 Wend., 845 (1828).
(1828); Vanduzor v. linderman, 10 * Pangburn v. BuU, 1 Wend., 841!^
John., 106 (1818). (1828) ; Waterman v. Freeman, Hob.,
'Brown ▼. Chapman, 1 BL, 427; 206.
40 ACTION FOR MALICIOUS PttOSKCUTION.
pass on the case ; that the same was delivered to a oonstahle, who, March 15th»
in the year aforesaid, served it on the plaintiff ; that the parties appeared ;
that Pangbarn declared on a pretended claim for money, demanding $10^
to which Bali pleaded the general issae; that the case was adjourned, on
Application of Pangburn, until April 18th, when the parties appeared and
Pangbum discontiniied the suit; that on the same day, Pangburn procured
Another summons from the same justice in his favor against Bull, return-
able April 28th, which was served ; that on the day of the return the par-
ties appeared, issue was joined, atrial had, and judgment rendered against
Pangburn for the costs of this suit ; by means of which the plaintiff hath
been greatly damnified, etc. To which declaration the defendant pleaded
fum cuL In December, 1826, the cause was tried. The facts alleged in the
declaration were shown by the production of a written stipulation signed
by the parties, and from which it further ai^ared that on the adjourn-
ment, April 8th, Bull took out subpoenas for witnesses, but Pangbum did
BOt ; nor did he produce any witnesses on the day that he discontinued the
first suit. The plaintiff further proved that he told the defendant that all
the dealings he ever had with him was that he, the plaintiff, had boarded
the defendant and received twelve shillings for it, which the defendant did
■not deny; that the only evidence offered by Pangbum, when the cause
was tried before the justice, was a declaration made by Bull that Pang-
bum had boarded with him, and had paid him $1.50 for the same. The
place of trial appointed by the justice was fourteen miles from Albany,
where Bull resided. The plaintiff further proved a declaration of Pang-
bum that he would bring Bull four times to Guiiderland, and he would
get no advantage of him ; that Bull had taken too much for his board ; that
be had overcharged him, and charged him more than he did others, or more
than he agreed to. On being told that he could not make an action lie,
as he had settled with Bull and taken a receipt, he replied that he would
bring him out four times. The witness who was called by Pangbum, on
the trial before the justice, testified in the court below that he was the
constable who served the summonses, which were regularly served six days
before their return ; that previous to his being sworn on the trial before the
justice, he had not been asked by Pangbum what he could testify to;
that he was desired, on that trial, to state what Bull told him when he
served the first summons; that he testified that Bull told him that Pang-
bum had boarded with him in the February term, and that he had received
for the same, of Pangburn, twelve shillings, for which he had taken a re-
ceipt, and that was the only dealing he ever had with Pangbum ; that
Pangburn, at the time he paid him, complained of being overcharged, and
threatened to bring him (Bull) up to Guiiderland ; that Pangburn did not
pay him until after he had been written to, to come and pay. The plaint-
iff proved that the defendant boarded with him a part of two weeks ; the
witness stated that he was there more than one day each week, and as long
as between three and four days; that witness, who boarded with the plaint-
iff at the same time, paid three shillings a day for his board. The plaintiff
rested.
The defendant moved that the plaintiff be nonsuited on the following
grounds : 1. That in the suit before the justice, complained of as mali-
ACTION FOB MALICIOUS P&OSKCUTION. 41
dous, the plaintiff in this case had neither been arrested nor held to baiU
2, That a want qt probable caase for instituting the suits had not been'
shown nor had malice been proved. The court refused to nonsuit the
plaintiff, and decided that the several matters offered in evidence by the
plaintiff ought to be submitted to the jury, and that it was their province-
to determine whether the absence of probable cause and malice had been
sufficiently proved. To which opinion the defendant excepted and then
introduced a witness on his part, who testified that Pangbum boarded
with Bull a part of two weeks, but he thought that he was not there more-
than three days, and that Bull had agreed to charge not more than three-
shillings per day for board.
The court charged the jury, if, from the testimony before them, they
they should be of opinion that the prosecution before the justice was mali-
cious and without probable cause, and that the defpudant knew the fact^-
to be' so before and at the time of such prosecution, they ought to find
damages for the plaintiff ; otherwise they should find the defendant not
gnil^. The defendant excepted to the charge. The jury found a verdict
for the plaintiff for $726 damages, on which judgment was entered. On
an appeal the supreme court affirmed the judgment, holding that an arrest
and holding to bail are not indispensably necessary to the maintenance or
an acticm for a malicious prosecution. It is, however, not enough to state
in a declaration that a suit was commenced maliciously and without causes
but the particular grievance must be alleged, the gist of this sort of actiona-
arising from some evil practice or malice in him who sues or prosecutes.
When a party, with full knowledge of all the circumstances, pays a sum
of money, and afterwards maliciously commences a prosecution to recover
back part on the ground of an over-payment, although the fact may be
that the party received more than he was entitled to, such fact will not
• support the defense of probable cause in an action for a malicious prosecu-
tion. Pangburn v. Bull, 1 Wend., 845 (1838), citing Vandusor v. Under-
man, 10 Johns., 106; Brown v. Chapman, t Bl., 427; Reynolds v. Kennedy*
1 Wils., 282; Waterman v. Freeman, Hob., 206, 266, cited in 57 Ind., 865,.
878; 26 Am. Rep., 61; 42 Vt. 209; 1 Am. Rep., 824; 29 Cal., 648, 650; 84^
Am. Dec.. 247; 11 Kan., 564; 48 Mo., 685; 6 Barb., 87; 6 N. T., 887; 2%
Wend., 888; 9 L. C. P. Co., 943.
§ 32. The contrary doctrine — The action will not lie —
Stated by Beck, J, (Iowa). — We think the doctrine is well
established by the great preponderance of authority that no
action will lie for the institution and prosecution of a civil ac-
tion with malice and without probable cause, when there ha&
been no arrest of the person or seizure of the property of de-
fendanty and no special injury sustained, which would not nec-
essarily result in all suits prosecuted to recover for like causes^
of action. This doctrine is supported by the following con-
42 ACTION FOR MALICIOUS PROSECUTION.
^ideration : The courts are open and free to all who have
grievances and seek remedies therefor, and there should be
<io restraint upon a suitor through fear of liability resulting
irom failure in his action^ which would keep him from the
<;ourts. He ought not, in ordinary cases, to be subject to a
-suit for bringing an action, and be required to defend against
the charge of malice and the want of probable cause. If an
action may be maintained against a plaintiff for the malicious
prosecution of a suit without probable cause, why should not
^ right of action accrue against a defendant who defends
without probable cause and with malice? The doctrine surely
tends to discourage vexatious litigation, rather than to pro-
tnote it.
It will be observed that the statement of the doctrine we
have made extends it no further than to cases prosecuted in
the usual manner, where defendants suffer no special damages
•or grievance other than is induced by all defendants in suits
brought upon like causes of action. If the bringing of the
miction operates to disturb the peace, to impose care and ex-
pense, or even to cast discredit and suspicion upon the defend-
ant, the same results follow all actions of like character,
whether they be meritorious or prosecuted maliciously and
without probable cause. The}' are incidents of litigation.
But if an action is so prosecuted as to entail unusual hardship
upon the defendant and subject him to special loss of property
or of reputation, he ought to be compensated. So if his prop-
-erty be seized, or if he be subjected to arrest by an action ma-
Ijciously prosecuted, the law secures to him a remed}'. No
miction could be prosecuted to recover money fraudulently
obtained, in which the defendant would not suffer the very
things for which plaintiff seeks compensation in damages.^
iBeck, J., in Wetmore ▼. Mel- 115: Bitz v. Meyer, 11 Vroom, 252;
linger. 64 Iowa, 741 ; 18 N. W. Rep., S. C, 29 Anier. Rep., 233; Eberly v.
^TO (1884), overruling Wetmore v. Rupp, 90 Pa. St., 259; Gorton v.
Mellinger, 14 N. W. Rep., 722. See Brown. 27 111., 489; Woodmansie ▼.
1 Amer. Lead. Cas., 218, note to Logan, 2 N. J. Law, 93 (1 Penn.);
Munns ▼. Dupont, and cases there Parker's Adm'rs v. Frambes, id.,
•cited; Meyer v. Walter, 64 Pa. St., 156; Potts v. Imlay, 4 N. J. Law,
589; Kramer v. Stock, 10 Watts, 830 (1 Suth.).
action fob mau010u8 pb08e0uti0k. 43
Applications of the law. —
<1) Where the action wiU lie for malidotuly and tpithaui probable cause
prosecuting a civil suit
(a) Malicioue institution of proceedings in bankruptcy — End of prose-
cution — Probable cause — Advice of counsel, — Meyer Sonneborn brought an
action against A. T. Stewart & Co. for maliciously instituting proceedings
tn bankruptcy against him. The record shows that in the years 1865 and
1866 Sonneborn was a member of the firm of E. Lipzeiger & Co., in New
York, and that while he was thus a member of the firm bought goods on
credit from A. T. Stewart & Co. Sometime in 1866 he withdrew from the
firm ; but no notice of his withdrawal was published, and the firm con*
tinucd business in its old name without any apparent change. In the
winter and spring of 1867 the defendants sold other goods on credit to
E. Lipzeiger & Co., as they allege, without any notice that Sonneborn had
previously withdrawn from the firm. On the other hand, he alleges that
he did give personal notice of his withdrawal to one of the clerks of the
defendants' store before the purchases of 1867 were made. No payment
for these latter purchases have been made. The defendants in 1869 sued
the plaintiff to recover the debt in the circuit court for Barbour county,
Alabama, and after trial a verdict and judgment was given against them.
This was at the August term, 1871. From the verdict and judgment the
defendants prosecuted an appeal to the supreme court of the state, where
the judgment was reversed and a new trial ordered. On the 12th of May»
1873, before the case came on for a second trial, one Jonas Sonneborn, a
brother of the plaintiff, brought suit against him in the Eufaula city court,
and one month afterwards recovered a judgment by default for |6,944.48
(the present plaintiff having made no resistance), and thereupon an execu-
tion was issued and levied. This proceeding having come to the notice of
A. T. Stewart & Co. (and they having been advised by legal counsel that
an act of bankruptcy had thereby been committed by Sonneborn), on the
15th of August, 1878, they filed their petition in the district court praying
that he might be declared a bankrupt, and that a warrant might issue to
take possession of his estate. The petitioners represented themselves to be
creditors for a sale made to E. Lipzeiger & Co. in 1867, of which firm
they alleged Sonneborn was a member; and the act of bankruptcy alleged
was that on the 12th of June, 1878, he suffered and permitted a judgment
to be recovered against him by default in favor of Jonas Sonneborn, in the
city court of Eufaula, upon which an execution had issued, whereon a
levy had been made.
Upon this petition a rule to show cause, etc., was granted, an injunction
and warrant for provisional seizure was granted, and on the 19th of August,
1873, the warrant was executed. Such was the situation when the case
of the defendants against the plaintiff came on for the second trial in the
Barbour county circuit court. The result of that trial in November, 1878,
was a verdict and judgment for Sonneborn, which was subsequently af-
firmed by the supreme court of the state at its June term, 1874. It thus
having been determined that the defendants were not creditors of Sonne*
44 AanoN for malicious pbosecution.
bom, the proceedings in bankruptcy were dismiased and the present suit
was brought, which alleged that they had been prosecuted maliciously and
without probable cause. On the trial the court instructed the jury, among
other things, as follows : '* But if they (the defendants) had no legal claim or
demand against the complainant (Sonnebom), then, whether they had prob-
able cause or not, they had no right to institute the proceedings (in bank-
ruptcy). They cannot go back and allege that, though they had no legal
claim against him, they thought they had ; in other words, that they haci
probable cause to believe that they had such a demand. Unless they had
a debt, they cannot allege probable cause for proceeding in bankruptcy at
all. Their defense cannot stand on two probable causes, one on top of the
other. . • • As it has been adjudicated by the circuit court of Barbour
county and afl^med by the state supreme court, that the defendants never
had a legal claim against the plaintifiF, and, therefore, had no right to insti-
tute proceedings in bankruptcy against him, the plaintiff is entitled to
recover in this action the damages he has sustained by those unlawful pro-
ceedings. The court, therefore, rules that the defense in this case cannot
be sustained by proving that the defendants had probable cause to believe
that the plaintiff had committed any act of bankruptcy ; but it being shown
by judicial determination that they had no legal claim or debt against the
plaintiff, and had, therefore, no right to institute bankruptcy proceedings,
they are liable for the damages sustained by the plaintiff thereby, and the
only question for the jury will be the amount of the damages under the
circumstances of the case. • • • We charge you, therefore, that
the plaintiff is entitled to recover his actual damages or the loss he has
actually sustained in all events." • . • And again, '* The actual damages
sustained by the complainant, that, you will give him a verdict for at all
events."
The plaintiff recovered and the defendants took the case to the supreme
court of the United States. Justice Strong, holding the instruction to be
erroneous, said: '* It ignores totally the question whether the conduct of
the defendants had been attended by malice, though it charged malice, and
it denied all importance to the necessary inquiry whether they had prob-
able cause for this action. If the charge was correct, then every man who
brings a suit against another, with the most firm and reasonable belief
that he has a just claim and a lawful right to resort to the courts, is re-
sponsible in damages for the consequences of his actions if he happens to-
fail in his suit. His intentions may have been most honest; his purpose
only to secure his own, in the only way in which the law permits it to be
secured ; he may have had no ill-feeling against his supposed debtor, and
may have done nothing which the law forbids. Such is not the law. It is*
abundantly settled that no suit can be maintained against an unsuccessful
plaintiff or prosecutor unless it is shown affirmatively that he was actuated
in his conduct by malice or some improper or sinister motive. Halice is*
essential to the maintenance of any such action, and not merely (as the cir-
cuit court thought) to the recovery of exemplary damages. Notwithstand-
ing what has been said in some decisions of a distinction between actions
for criminal prosecution and civil suits, both classes at the present day re-
quire substantially the same essentials. Certainly an action for instituting
ACIION FOE MALICIOUS PB08ECUTI0N. 45
a civil sait requires not lera for its maintenance than any action for mali-
cious prosecution of a criminal proceeding." Stewart v. Sonneborn, 96
U. S., 187 (1878), citing Nicholson v. Coghill, 4 Barn. & C, 21 ; Webb v.
Hill, 3 C^UT. & P., 485; Burhans v. Sanford, 19 Wend., 417 (1838); Cotton
T. Huidekoper, 3 Pa. (Penrose & Watts), 149 (1830).
(6) Probabie cause in civil prosecutions. — There was also error in the
charge in so far as it took away from the defendants the protection of
probable cause for their instituting the proceedings in bankruptcy. The
court ruled that the defense could not be sustained by proving they had
probable cause for believing the plaintiffs had committed an act of bank-
ruptcy, because, it turned out, after the proceedings were commenced,
that a verdict of a jury and judgment thereon had established the plaint-
iff as not indebted to them, and, consequently, that they had no right
to institute bankruptcy proceedings against him. It was further chari^ed
that: '*If they had no legal claim or demand against the plaintiff, then
whether they bad probable cause or not, they had no right to institute
the proceedings. They cannot go back and allege that though they had
no legal claim or debt against him, they thought they had; or that they
had probable cause to believe they had such a demand. Unless they had
a debt they cannot allege probable cause for proceedings in bankruptcy
at alL" To this we cannot assent. The existence of a want of probable
cause is, as we have seen, essential to every suit for a malicious prosecu-
tion. Both that and malice must concur. Malice, it is admitted, may
be inferred by the jury from want of probable cause, and the want of
that cannot be inferred from any degree of even express malice. Stewart
V. Sonneborn, 98 U. S., 187 (1878), citing Sutton v. Johnstone, 1 T. R., 493;
Foshay v. Ferguson, 2 Denio, 617 (1846); Murray v. Long, 1 Wend., 140
1828); Wood v. Weir, 5 B. Mon., 544 (1845).
(c) Failure of the prosecution, — In every action for malicious prosecu-
tion it must be averred and found that the prosecution has failed, but its
failure has never been held to be evidence of either malice or want of
probable cause for its Institution, much less that it is conclusive of those
things. The final judgment of the circuit court of Barbour county did not
therefore justify the court in charging that there was no probable cause
for the bankruptcy proceedings, or that present or absence of such cause
was immaterial. Stewart v. Sonneborn, 98 U. S., 187 (1878), citing Bell v.
Pearcy, 11 Ired. (N. C), 233; Cloon v. Gerry, 13 Gray, 201.
id) Advice of counsel, — It was proved that before they commenced this
suit in the circuit court of Barbour county the defendants were advised by
an eminent lawyer of Alabama respecting their legal right to recover the
debt of plaintiff, that in his opinion the plaintiff was liable therefor. It
was further proved that the same lawyer advised them that in his opinion
the plaintiff had rendered himself liable to involuntary bankruptcy pro-
ceedings by suffering his brother's judgment to go against him by default
and by advertising his entire stock of goods for sale at and below cost. It
was hot until after this advice that the petition in bankruptcy was pre-
pared and filed. Upon this evidence "the court below erred in refus'ng
to charge that if the defendants acted upon the advice of counsel in prose-
cuting this ciaimi and upon such an advice had the honest belief in the
46 ACnON FOB MALICIOUS F&OS£OUTIOK.
Talidity of their debt and their right to recover in the action ; and in the ih»
Btitution of the proceedings in bankruptcy acted likewise on the advice of
counsel, and under an honest belief that they were taking and using only
such remedies as the law provided for the collection of what they believed
to be a bona fide debt, they having first given a full statement of the factsr
of the case to counsel, then there was not such malice in the wrongful use of
legal process by them as will entitle the plaintiff to recover in this form
of action." The judgment was reversed. Stewart v. Sonneborn, 98 U. S.,
187(1878), citing Snow v. Allen, 1 Stark., 502; Ravenga v. Mackintpsh, »
Barn. & C, 693; Walter v. Sample, 25 Pa., 275; Cooper v. Utterback, 87
Md., il83; Olmstead v. Partridge, 16 Gray, 881.
(e) The action Ilea for maliciously suing out an injunction. — Mitchell
was a mill owner at Americus, Georgia. He had a license to overflow the
lands of the Southwestern Railroad Company, and for many years had en-
joyed the same without let or hindrance from the railroad company.
Finally the railroad company without notice instituted a suit against him,
obtained an interlocutory injunction which operated harshly upon him in
depriving him of the use of his property for three years, and by reason of
which he sustained special damage. The defendant, while suffering no
injury, but possibly receiving benefit from the privilege enjoyed by
Mitchell, sought to divert the water from the mill-pond of Mitchell and to
employ it for other uses; and that, while the railroad company alleged
that its suit was brought in good faith to protect its own rights, it ap-
peared that the city of Americus, ** behind the scenes," was urging the suit
to be brought, which, if successful, would benefit the city. Upon these
and other facts the jury found damages, and that the suit was without
probable cause and malicious, and the defendant excepted. In overruling
the exceptions and affirming the judgment of the court below, Roney, J.,
said: "True, the defendant offered evidence to show good faith and the
absence of malicious intent, yet it was for the jury to settle the conflicts in
the testimony; and having found against the defendant, we will not dis-
turb the verdict. We will only add that malice will be inferred from want
of probable cause ; and to show its existence, it was not necessary to prove
that the suit was instituted by ill-will, resentment or hatred towards the
owner of the property ; it was sufficient to prove it in its enlarged legal
sense. In a legal sense, any act done wilfully and purposely to the preju-
dice and injury of another, which is unlawful, is, as against that person,
malicious. In confirmation of this view, we cite Com. v. Snelling, 15
Pick., 887; 13 Amer. Dec, 268, note." Southwestern R. Co. v. Mitchell, 80
Ga.. 488; 5 S. E. Rep., 490 (1888).
(/) Malicious prosecution may he maintained for maliciously, and with-
out probable cause, instituting and prosecuting an action in forcible en-
try and detainer, — An action was commenced July 8, 1885, by the filing
in the court of common pleas of a petition which charged in substance
that in March, 1885, the plaintiff, by written agreement, leased of a Mrs.
Bray ton, through defendant, as her agent, for a term to expire April 1,
1886, a lot in the county of Hamilton, on which was a dwelling-house and
other buildings; that the plaintiff immediately entered into possession,
which has since continued, except that during a portion of the time the
ACTION FOB MALICIOUS PBOSEOUTION. 4T
defendant unlawfully kept plaintiff out of a portion of the premises. Oi»
the 11th of May, 1885, defendant, in her own name, instituted a suit iii'
forcible entry and detainer, before a justice of the peace of Cincinnati
township, said county, for the recovery of possession of said premises^
which suit terminated in a verdict for the plaintiff of "not guilty.** After-
wards, on the 17th of June, 1885, defendant instituted another like suit
before a justice of the peace of Springfield township, said county, which
also terminated in a verdict for this plaintiff of ''not guilty." Each of
said actions was prosecuted maliciously and without probable cause. The-
plaintiff, by reason thereof, was greatly harassed and annoyed, much
ixrorried and troubled in mind, was injured in reputation among his neigh-
bors, was caused great inconvenience and much loss of time, and put to
considerable money outlay, in defending said actions. Then follows »
prayer for judgment. To this petition a general demurrer was filed, which
was sustained by the court of common pleas, which judgment was affirmed
in the circuit court. To procure a reversal of these judgments, this error
proceeding is prosecuted.
Spear, J. : *' There seems abundant authority in other states of the Union
to support the proposition that a suit may be maintained for damages aris-
ing from the prosecution of an ordinary civil action when the same is done
maliciously and without probable cause, but without disturbance to person
or property. The precise question has not been made in Ohio, though in
two cases (Tomlinson v. Warner, 0 Ohio, 104, and Fortman v. Rottier, 8
Ohio St. , 548) this court has held that an action may be maintained for
maliciously and without probable cause suing out and levying a writ of
attachment. So, where one has been wrongfully deprived of the use of his-
land by the prosecution, maliciously and without probable cause, of an in-
junction proceeding, the court held (Coal Co. v. Upson, 40 Ohio St., 17)
that an action for malicious prosecution will lie. The language of the
opinion is: 'It may now be considered the approved doctrine that an ac-
tion for the malicious prosecution of a civil suit may be maintained when-
ever, by virtue of any order or writ issued in the malicious suit, the
defendant in that suit has been deprived of his personal liberty or of the
possession, use or enjoyment of property of value.' It will be noted that
where damages for the prosecution, maliciously and without probable-
cause, of an ordinary civil action are refused, one of the principal reasons
given is that the allowance of taxed costs is regarded as sufficient punish-
ment to the plaintiff for prosecuting and recompense to the defendant for
defending such an action. In England the taxed costs which may be
awarded to a successful defendant include not only fees of court officers-
and witness, but attorney's charges for preparing the case for trial and the
honorarium of the barrister who tries it, and in a number of American
states a like taxation of costs prevails. But in Ohio the successful party in.
an ordinary action recovers only the fees of witnesses and court officers^
leaving his own personal expenses in preparing the case, in attending the-
trial, and his attorney's fees for preparation and for trial, to be paid with-
out reimbursement* Taxed costs are not here regarded as affording full
compensation for expenses incurred, for in cases where damages may be
recovered for malicious injury, fees of counsel, as well as court costs, are-
^i ACTION FOR MALICIOUS PSOSECUTION.
included in oompensatory, and not punitive, damages. The reason for the
rule having failed there is much ground for saying that the rule itself
(fails. But there is no neoessity in the present case for a determination of
•the question whether or not an action will lie for malicious prosecution of
an ordinary civil action without {Nrobable cause, where there is no arrest
•or seizure, for the petition of the plaintiff makes a different case. In
many of its aspects an action in forcible entry and detainer is an extraor-
dinary proceeding. It is summary in its character, and may become, when
prosecuted wrongfully, excessively annoying and harassing. Having given
three days' notice in writing to leave the premises, the plaintiff may com-
mence his action by filing a complaint with a justice of the peace, and in
three days more the trial may take place. Rev. St. Ohio, sea 6509 et aeq,
** The complaint need not be sworn to. If a continuance is asked by de-
fendant for more than eight days, security for payment of rent is required.
The action may involve the possession by a defendant of a home for him-
:6elf and a dependent family. A failure to answer or an unsuccessful de-
•fense may result in an immediate and forcible ouster, and this without
^reference to the condition of the family, or the weather, or other surround-
ing circumstances. No appeal is allowed, nor is one action a bar to subse-
quent actions. The contingency of preparing a bill of exceptions must be
^anticipated, and counsel prociured for that; or else a review of erroneous
holdings cannot be had. Error can be prosecuted only by leave of a judge,
and such proceeding raises questions relating to competency of evidence
•only, and not questions touching the weight or sufficiency of the evidence.
The justice is not even bound to sign a bill where the objection is only that
-the judgment is not sustained by sufficient evidence. If petition in error
is allowed to be filed, the party must be ready with security, if exacted, to
«tay execution of the judf^ment against him. Then, too, the plaintiff may
select from several concurrent jurisdictions within the county. He may
oommence his action, if he so desire, in the township furthest removed
from the residence of the defendant, or the one most inaccessible, thus re-
•<}uiring, it may be, his adversary to travel long distances, and to transport
fiis witnesses at large expense. Failing in one action thus brought, he may
continue prosecutions until his pocket-book or his malice, or both, become
exhausted. Plainly, in the hands of an unscrupulous prosecutor, pos-
eessed of abundant means, this kind of action may beoome grievously op-
pressive ; and it is idle to say that the small bill of costs before a justice is
-either a sufficient punishment to inflict upon a malicious prosecutor or con-
stitutes any recompense to a wronged defendant. The statute gives to
fiuch plaintiff the right to resort to his action as often as he may choose,
and to bring it before any justice within the county, but this implies no
right to prosecute maliciously and without probable cause. A groundless
action, prosecuted with malice, is never justifiable, and a wrong suffered
by such prosecution in forcible entry and detainer should not be vrithoat
jremedy. Nor is there force in the objection, as applied to this case, that
intolerable evils would arise from a multiplicity of suits thus encouraged.
The law-making power has seen fit to provide by this statute that a judg-
ment shall not be a bar to any after action. We have, in this provision,
legislative declaration to the effect that evils may not be expected to fol-
ACTION FOB MALICIOUS PROSECUTION. 49
iow repeated trials of issues under this statute. In consonance with this
poli<7 it may be reasonable to conclude that, if repeated actions to deter-
mine the right to possession will not work intolerable evils, a review of the
facts by a suit for malicious prosecution will not have that effect. At all
events, the right to so review will naturally tend to check any evils that
might flow from a misuse of the statutory right to repeated trials." Judg-
ment reversed. Pope v. Pollock, 46 Ohio St., 367; 21 N. E. Rep.. 357 (1889).
(g) An action wUl lie for maliciously^ and without probable cause, insti*
iuting a suit in repZetnn.— ^McPherson brought an action against Runyon
for maliciously, and without probable cause, prosecuting against him a
suit in replevin. A general demurrer to the complaint was sustained.
Mcpherson appealed. In delivering the opinion of the court, Dickinson,
J., said : "The cause of action for which a recovery is sought is the mali-
cions prosecution of an action in replevin in a justice's court, and the mali-
cious seizure of the plaintiff's property by writ of replevin. It is not
claimed that the complaint does not set forth facts showing a right of re-
covery, if a separate action may be maintained for such cause. The demur-
rer rests upon the propositions contended for, that the cause of action
asserted was a mere incident of the original action of replevin ; that what-
ever damages the plaintiff might have been entitled to recover for the
cause here alleged were recoverable only in that action ; and that the judg-
ment therein in favor of this plaintiff is a bar to the recovery now sought.
Sylte V. Nelson, 26 Minn., 105, and Ward v. Anderburg, 86 Minn., 300, are
relied upon in support of this contention. The respondent does not claim
that for the prosecution of a civil action, maliciously and without probable
cause, a defendant may not in general maintain an action for damages.
We have recognized such rights of action in cases where the defendant's
property was attached (Burton v. Railway Ck)., 33 Minn., 189, and Coch*-
rane v. Quackenbush, 29 Minn., 376), and if there were peculiar reasons,
based upon the fact of the attachment, justifying an action in such cases*
it is not perceived why they are not equally applicable where, as in this
case, the defendant's property was seized under a writ of replevin.
"That an action will lie in such a case was held in Wills v. Noyes, 13
Pick., 324; and this was also recognized in Magmer v. Renk, 65 Wis., 864;
27 N. W. Rep., 26. We do not, however, place our decision upon this
limited ground, but upon the broader proposition that for the prosecution
of a civil action maliciously and without probable cause, to the injury of
the defendant, he may maintain an action for damages, although there
was no interference with his person or property. Pangburn v. Bull, 1
Wend., 856; Whipple v. Fuller. 11 Conn., 582; Clossonv. Staples. 42 Vt.,
209; Eastin v. Bank, 66 Cal., 123; 4 Pac. Rep., 1106; Allen v. Ck>dman, 139
Mass., 136; Marbourg v. Smith, 11 Kan., 554; Woods v. FinnelJ, 13 Bush,
629; Pope V. Pollock (Ohio), 21 N. E. Rep,, 856; McCardle v. McGinley, 86
Ind., 588. The reasons for this conclusion are well set forth in Whipple v.
Fuller and in Closson v. Staples, supra. See, also, 21 Amer. Law Reg.^
281, 858.
"The decision in Sylte v. Nelson, followed in Ward v. Anderburg, has
not the effect ascribed to it by the respondent. It was there decided that
a defendant's assertion in an action of replevin of the right to a return of
4
50 ACllON FOR MALICIOUS PROSECUTION.
tiiQ property taken from him, and to damages for the taking aad deteor-
tion, did not constitute a oounter-claim in such action. It waa said also*
in the opinion that this was not a cause of action in itself upon which Ihe-
defendant could maintain an action. This decision, and the language of
the court, relating merely to the ordinary claim of a defendant in replevin
to have his property restored to him, with damages for the taking and de-
tention, as an incident in that action, had no bearing upon the question as
to whether an action will lie for the malicious prosecution of an action of
replevin. For such a cause, indeed, no action could be maintained, or re-
covery had, until the replevin action should have terminated in favor of
the defendant (O'Brien v. Barry, 106 Mass., 800), and of course the right
of recovery for the malicious prosecution could not be asserted as a coun*
lier-claim in that same action. It is of course true that but one recovery
can be allowed for the same cause ; and the damages for the taking and
detention once awarded to the defendant in the original action cannot be
again assessed in an action for malicious prosecution. But the measure of
recovery in the latter action is not confined to the injury from the taking
or detention of the property." Order reversed. McPherson v. Runyon,
il Minn., 524; 48 N. W. Rep., 893 (1889).
(h) Attachment of personal property for a larger sum than toas due —
Implied malice. — George Savage and others were merchants in Boston and
had had dealings with Brewer, who lived in the state of Maine. Ttiey
purchased a ship of him and had prepared her for sea, when he commenced
an action of assumpsit against them for the sum of $1,500; by the writ the
officer was directed to attach property to the amount of $2,000, and, the
Boston merchants having no other property in Maine, he attached the ship,
which was worth three or four times that sum. Notice was immediately
sent to Boston, and one of the firm proceeded to Maine and settled the ac-
tion by paying the sum of $124.84 and the costs, amounting to the sum of
$22.84. For these sums Brewer gave a receipt stating that th^ payments
were in discharge of his suit, and the ship was released from attachment.
Then Savage et al, sued Brewer for a malicious prosecution. On the trial
the plaintiffs contended they owed the defendant nothing at the time of
the attachment, because although he had advanced money for them to the
amount of about $120, yet it was upon an agreement that it should be re-
paid in Boston, and therefore it was ;iot then due, and that whether this
sum was due or not, the commencement of an action for a sum so much
larger than the sum due, and attaching property to so large an amount,
was evidence of implied malice, and afforded good ground for this ac-
tion. The case went by default, but was subsequently submitted to a
jury for the assessment of damages. The question reserved for the con-
sideration of the court was ** Whether, if the defendant had a good cause
of action to that extent only, the present action could be maintained, in
consequence of that action having been brought for a much larger sum,
and of the excessive attachment."
Wilde, J. : *' No reason is given why an attachment was made to an
amount so much exceeding the debt, or why in the writ the sum of $1,500
is demanded, when, if anything was due, it was only the sum of $124. If
it was an innocent mistake, this should have been shown ; or if the defend-
AOTION FOB MALICIOUS PS08S0DTI0K. 51
ant had another doubtful claim, which he waived at the time of the settle-
ment of the action, that also should have been shown. It was competent
for him to rebut the presumption of malice by showing a probable cause
or an innocent mistake : but there is no such proof. On the contrary the
want of probable cause plainly appears. It is no answer to say that the
same property must have been attached if the real debt only had been de*
manded ; for the master of the vessel might have paid that without orders,
or, if not, the plaintiffs might have remitted the amount without being
put to the trouble and expense of a journey into Maine to procure the re-
lease of their property. Upon the evidence, therefore, as reported, we are
of the opinion that the action is well maintained., and that the plaintiffs
are entitled to judgment." Savage et aL v. Brown, 16 Pick. (83 Mass.),
453(183£0.
(2) Contrary doctrine — Where the action will not lie.
Malicious prosecution unll not lie for the institution of a dvil suit where
there has been no arrest of the person or seizure of the property, and no
special injury sustained, — Wetmore brought an action to recover damages
sustained by reason of the malicious prosecution of a civil action by Mel-
linger and others against him.
In his petition he alleged that defendants brought an action against him
and his wife, charging that they had conspired and confederated together
to defraud them by representing to them, under the assumed name of
Baker, that they were the owners of certain lands in Poweshiek county,
which they were induced to purchase, and who, in such assumed name,
executed and delivered to them a warranty deed therefor. In an action
by one Woodward, a deed purporting to be executed by him to the Bakers,
under which they claimed title to the lands, was declared to be void for
the reason that it was forged and fraudulent, and that Wetmore and his
wife well knew the condition of the title, and represented that they were
the owners thereof for the purpose of cheating Mellinger and others, and
of obtaining money by false and fraudulent pretenses, and did in that man-
ner obtain the sum of $3,000 from them. It was further alleged that de-
fendants herein sued out a writ of attachment in the suit brought by them,
which was levied upon real estate owned by plaintiff^s wife, and that de-
fendants for a time prosecuted their action, but finally dismissed it at their
own costs. Plaintiff, in his petition in this Cfise, alleged that he was not
indebted to defendants in any sura at the time their action was brought
against him ; that he was not guilty of the frauds therein charged, and
that the action was commenced and prosecuted by defendants maliciously
and without probable cause. The defendants admitted the commencement
of the suit, the issuing of the attachment, and that it was levied upon real
estate owned by plaintiff^s wife. There was no evidence showing or tend-
ing to show that the writ of attachment was levied upon any property
owned by plaintiff. The wife of plaintiff did not join in the action.
There was a verdict for defendants, etc. Plaintiff appealed.
Beck, J. : Counsel for plaintiff, in support of their position that the ac-
tion may be maintained though no arrest of defendant or seizure of prop-
erty be had in the proceeding alleged to have been maliciously prosecuted.
52 ACTION FOR MALICIOUS PEOSECTJTIOX.
cite Green ▼. Cochran, 48 Iowa, 544, and Moffatt v. Fifiher, 47 Iowa, 478. In
the first case, the action alleged to be malicious was a proceeding for bas-
tardy, which, under the statute, operated as a lien upon defendant's lands
from its commencement. In the other case, the action which was the
foundation of plaintifTs claim was forcible entry and detainer, and, before
final disposition thereof, the defendant was ousted of possession of the land,
whereon was a coal mine. In both instances the property of the respective
defendants was reached by the proceedings. The facts of these cases do
not support counsers position. . . . The action will not lie for the in-
stitution of a civil action with malice and without probable cause, when
there has been no arrest of the person or seizure of the property of the de-
fendant, and no special injury sustained." Judgment affirmed. Wetmore
V. Mellinger, 64 Iowa, 741; 18 N. W, Rep., 870 (1884).
§33. Malicious prosecution for suing out an attachment.
No doubt can be entertained that this action lies for mali-
ciously suing out an attachment and seizing the goods of a
debtor, even though there may be at the time some indebted-
ness, and especially so in cases where the levy is grossly ex-
cessive and the object is extortion and oppression attempted
to be sustained by fraud and perjur3\* The injured party is
not restricted to a suit on the bond. In many cases the
amount of the bond is not sufficient to compensate for the
wrong, the loss of property, the destruction of business, the dep-
rivation of profits and the injury to feelings and reputation.
In cases where exemplary or vindictive damages may be
awarded, the bond would be no security at all. ]^umerous
authorities may be found to sustain the action.^ It has been
uniformly held in the United States that the action lies against
a person for attaching another's property maliciously and
without probable cause. The remedy in this case is not at all
interfered with by the person suing out the process having, at
the institution of his suit, given a bond, conditioned to pay all
damages the person whose property is attached might sustain
by reason of the attachment having been wrongfully sued out.'
iSpaids V. Barrett et al., 67 111., 108 (1839); Weaver v. Page, 6 Cal.,
289(1870). 681 (1858); Lawrence v. Hagerman,
2 Savage V. Brewer, 16 Pick., 466 66 III., 69(1870); Spaids v. Barrett
(1885); Bump V. Betts, 19 Wend., et al., 57111., 289 (1870).
421 (1838); Donnel v. Jones, 18 Ala., ^Robinson v. Kellum, 6 Cal., 899
490; 17 Ala., 689 (1850); Linsay v. (1856); Lawrence v. Hagerman, 56
Larned, 17 Mass., 190 (1821); Whip- Bl., 77 (1870); Sanders v. Hughes, 2
plev. Fuller, 11 Conn., 582 (1836); Brevard (S. C), 495 (1811) ; Donald v.
Tomlinson et al. v. Warner, 9 Ohio, Jones, 18 Ala., 490 (1848); Smith ▼.
AOnON FOE MALICIOUS PBOSEOUTION. 53
§ 34. The law stated by Nelson^ C. J. — In an action for
maliciously suing out an attachment Chief Justice Kelson laid
down the law as follows: ^'This action lies against any per-
son who maliciously and without probable cause prosecutes
another, whereby the party prosecuted sustains an injury,
either in person, property or reputation."^
§ 35. Attorney's liability for bringing a ciyil suit. — In
general, it is true that an action cannot be maintained against
an attorney on the ground of his instrumentality in bringing
a civil action against the plaintiff, unless where he has com-
menced such suit without the authority of the party in whose
name he sues, or, unless there is a conspiracy to bring a ground-
less suit, Icnowing and understanding it to be groundless, and
without any intent or expectation of maintaining the suit*
The law stated by Sliaw^ G, J,: "I am not prepared to say
that if a person applies to an attorney, wishing to have a
groundless suit commenced, for the purpose of detaining the
property or the person of another under the forms of legal
process, and the attorney yields to such a request, that they
would not render themselves liable to an action at the suit of
the party thus injured. It would be very different from the
case where a client requests an action to be brought on his
responsibility, however groundless the attorney himself may
think it to be, and though he explicitly declared to the client
that he could not maintain the action. 'Knowing,' ' believing'
or ' supposing ' it groundless are only expressions indicating dif-
ferent degrees of the attorney's belief; the party may have
grounds for proceeding, not known to the attorney, and he
has a right to judge for himself.'
§ 36. Survival of the action. — The English common law
upon this subject, as it exists in nearly all of the states of our
Story, 4 Humph., 168 (1843); Pettit * Nelson, G, J., in Bump v. Betts,
v. Mercer, 8 B. Mon., 51 (1847) ; Sene- 19 Wend. (N. Y.), 421 (1888), citing
cal ▼. Smith, 9 Rob., 418 (1845); 1 Selw., 806; Saund. PI. & Ev.,
Tomlineon v. Warner, 9 Ohio, 103 651; 2 Chitty, Pi., 248. n. r; 13
(1889); Spengler v. Davy. 15 Gratt., Mod., 208; 1 Salk., 12; 1 T. R., 493,
381 (1859); McLaren v. Birdaong, 24 551.
6a., 265(1858); HiU t. Paldron, 88 '^BickneU y. Dorion, 83 Mass., 478
Ma, 258 (1866); Bump v. Betts, 19 (1885).
Wend., 421 (1838); Pierce v. Thomp- SBickneU y. Dorion, 83 Mass., 478
eon, 6 Pick., 192 (1828). (1885).
54 AOTK>N POE MALICIOUS PKOSEOtmOSr.
Union, is said by some anthors to come to us by tbe statute
8 Edward III., chapter 8. It enacts that any kind of injury
to a person by which his property has been rendered less bene-
ficial gives a right of action which may be assigned or sur-
Tives to his personal representatives.^ Hence the rights of
a person for mere personal injuries, such as malicious prose-
cution, cannot be assigned and do not survive to the personal
representatives of the injured party;' but when the action is
brought for an injury to the property of a person, the rule is
otherwise and tbe action does not die with the person.
Application of the law. —
Survival of the action for malieioua prosecution,
Thomas Conlj sued Michael Conly for malicious prosecution. At the
trial tbe jury found for the defendant, and the plaintiff took exceptions to
the ruling of the oourt. The defendant died, and his administrator ap-
peared in the suit and moved to dismiss the action on the ground that it
did not survive.
By the Court, — " It is useless to consider the merits of tiie exceptions,
because if they should be sustained the action could not be further prose-
cuted, having been abated by the defendant's death since the exceptions
were allowed." Ck)nly v. Conly, 121 Mass., 550 (1877), citing Gen. Stats.
Mass.. ch. 327, § 1 ; Nettleton v. Dinehart, 5 Oush., 543; Cummins v. Bird,
115 Mass., 346.
Note. — Statute of Massachusetts — Actions which survive. — In addi-
tion to the actions which survive by the common law, the following shall
also survive: Actions of replevin, of tort for assault, battery, imprison-
ment, or other damage to the person, for goods taken and carried away or
converted by the defendant to his own use, or for damage done to real or
personal estate, and the actions against sheriffs for malfeasance or non-
feasance of themselves or their deputies. Mass. Gen. Statutes, 1882, 958, § 1.
1 Hoyt V. Thompson* 5 N. Y., 820 same Testators carried away in their
(1851); 1 Chitty*s Pleading, 69; Za- Life, and no such Trespassers have
briskie v. Smith, ^6 Barb. (N. Y. ), hitherto remained unpunished ; It is
270 (1862); 14 Am. & Eng. Enc accorded. That the Executors in such
Law, 37 (1890). In the London edi- Cases shall have an action against
tion of the English statutes at large, the Trespassers, to recover Damages,
published in 1811, no statutes of 8 in like Manner, as they, whose Exec-
Edward III. are given. In volume 1, utors, they be should have had if
page 448, the following is given as they were in life." 4 Edw. III..
4 Edward IIL, caption 7: ** Exec- ch. 7, A. D. 1830; English Statutes at
utors shall prove an Action of Tres- Large, London, 1811, vol. 1, page 448.
pass for a Wrong done to their tes- ^ Nettleton v. Dinehart, 5 Gush,
tator. Also whereas in Times past (Mass.^ 543 (1850); Lawranoe v. Mar-
Executors have not had Actions for tin, 22 Cal., 178 (1868); Comegys v.
Trespasses done to their Testators, Vasse, 1 Pet. (U. S.), 198 (1828); 14
as of tbe Goods and Chattels of the Am. & Eng. Ency. Law, 87 (1890).
I
:
CHAPTER II.
FAI^E IMPmSONMEMZi ^
S 1. False imprisonment defined by Blackstonei
2. The same defined by Pollock.
8. The right of personal liberty — Ezoeptioni.
Application of an exception.
Restraint of an insane person.
4. Discnssion of the subject.
6. Arrest defined.
(1) Arrest in civil cases.
(2) Arrest in criminal cases.
6. General rules of law relating to aneBta.
7. Detention of the person.
Applications of the law,
(1) What is a sufficient imprisonment.
(a) Detention of person by cashier of a bank.
(b) Imprisonment of an infant — Assent immaleriaL
(c) A forcible ejectment.
(d) A sufficient arrest and imprisonment.
(2) What is not sufficient
(a) Submitting to detention under a misapprehension of
the law.
(p) A constable carried away to sea.
-6. Summary of the law of arrest.
9. Arrests with process.
10. What is a regular and sufficient warrant.
11. The essentials of a criminal complaint and warrant*
12. Officers protected by process, eta
18. Arrests without process.
(1) At common law.
(2) Under statutes.
An illustration — The statute Of UlinoiB.
Applications of the law.
(1) Time of making an arrest upon yiew.
(2) Arrest without warrant, justifiable — Breach of the
peace.
(8) Power to arrest without warrant must be exercised
promptly.
14 The manner of arrest — Use of handoufb, etc
18. The rule stated by Gwynne.
The law illustrated.
The use of handcuffs.
56 FALSE IMPRISONMENT.
§16. Abase of process.
17. Discussion of the subject.
An application of the law.
Carrying person arrested out of the jurisdictloii*
18. The officer must arrest the right person.
19. A distinction.
20. Arrest of night-walkers.
21. N ight> walker — The term defined.
22. Discussion of the subject.
The law illustrated.
What is probable cause to arrest a night-walker.
2d. Power of magistrates to imprison for breaches of ordinanoes.
24. Power of magistrates to fix the place of imprisonment.
25. Power to arrest in constables and police officers.
26. Special patrolmen — Officers appointed for special duty in stores^
hotels, etc. — Liability of the person who pays them, eta
27. Depot-masters not conservators of the peace at common law.
28. Private persons appointed by magistrates — Minors appointed, etc
29. Arrests by private persons upon view and information.
(1) Arrests upon view.
(2) Upon information.
The law illustrated.
Liability of a merchant fbr arrest upon view by his derk.
80. Private persons assisting officers.
81. Duty of private persons making an arrest
82. Arrest of a fugitive from justice.
§ 1 • False imprisonment defined by Blackstone. — To con-
stitute the injury of false imprisonment there are two points
requisite: 1. The detention of the person ; and 2. The unlaw-
fulness of such detention. Every confinement of the person
is an imprisonment, whether it be in a common prison or in a
private house, or in the stocks, or even by forcibly detaining
one in the public streets.^ Unlawful or false imprisonment
consists in such confinement or detention without sufficient
authority, which authority may arise either from some process
from the courts of justice or from some warrant from a legal
officer having power to commit, under his hand ai)d seal, and
expressing the cause of such commitment;^ or from some other
special cause warranted from the necessity of the thing, either
by common law or by act of parliament, such as the arresting
of a felon by a private person without warrant, the impress-
12 Coke's Institutes, 589 (1620); N. H.,49I; Smithv. State,7Humplu.
Johnson v. Tompkins, 1 Bald. (Tenn.). 48.
(U. S. G. C), 571 ; Pike v. Hanson, 9 ^ 2 Coke's Institutes, 46 (1620).
FALSE IMPBISONMENT. 57
ing of mariners for the public service or the apprehending of
wagoners for misbehavior in the public highways.^ False im-
prisonment may also arise by executing a lawful warrant or
process at an unlawful time, as on Sunday;^ for the statute
hath declared that such service of process shall be void.'
§ 2. False imprisonment defined by Pollock. — Freedom of
the person includes immunity not only from the actual appli-
cation of force, but from every kind of detention and restraint
not authorized by law. The infliction of such restraint is the
wrong or false imprisonment, which, though generally coupled
with assault, is nevertheless a distinct wrong; laying on of
hands or other actual constraint of the body is not a necessary
element, and if '^ stone walls do not a prison make " for the
hero or the poet, the law none the less takes notice that there'
may be an effectual imprisonment without walls of any kind.
Every confinement of the person is an imprisonment, whether
it be in a common prison or in a private house,^ or in the stocks,
or even by forcibly detaining one in the public streets; and
when a man is lawfully in a house, it is imprisonment to pre-
vent him from leaving the room in which he is.* The detainer
must be such, however, as to limit the party's freedom of mo-
tion in all directions. It is not an imprisonment to obstruct a
man's passage in one direction. A prison may have its bound-
ary large or narrow, invisible or tangible, actual or real, or,
indeed, in conception only; it may in itself be movable or
fixed ; but a boundary it must have, and from that boundary
the party imprisoned must be prevented from escaping; he
mast be prevented from leaving that place within the limit
of which the party imprisoned could be confined, otherwise
every obstruction of the exercise of a right of way may be
treated as an imprisonment." A man is not imprisoned who
has an escape open to him ; that is, we apprehend, a means of
escape which a man of ordinary ability can use without peril
1 Statutes Geo. III., ch. 78. » Warner t. Biddiford, 4 CB.
s Statutes Charles 11., th. 7 ; Salk- (N. S.), 180 ; Grainger v. Hill, 4 Bing.
eld's Reports, 78 (1689); 5 Modern N. C, 212 (1838).
Beports, 95 (1695). ^ Bird v. Jones, 7 Q. B., 743 (1845);
s 8 Blaokstone*s Comm., 127 (1765). 15 L. J. Q. B., 82.
< Pollock on Torts, 189 (1886); 8 ,
Black. Comm., 127 (1765).
58 FALSB XHPiOBONlCSHT.
of life or limb. The verge of a cliff or the foot of an appat^
ently impracticable wall of rock woald in law be a sufficient
boundary, though, peradventure, not sufficient in fact to re-
strain an expert diver or mountaineer.^
§ 3. The right of personal liberty — EMeptions.-^ The
right of every person to enjoy personal liberty is necessarily
subject to some exceptions. Among these is the right to re-
strain a person who is fighting, or doing mischief, or disturb-
ing a congiH3gation, or has fallen in a fit, or is so sick as to be
helpless, or is unconsciously going into great danger, or is
drunk, or has delirium tremenSj or is so insane as to be dan-
gerous to himself or others.^ Other instances might be given,
but these sufficiently illustrate the application of the principle.
Application of an exception. —
Restraining an insane person.
In the case of Ck)lby v. Jackson, decided in 1842, the plaintiff offered
evidence to prove that the defendant imprisoned him in a cage, and de-
tained him therein for a period exceeding two months. The defendant
pleaded the general issue, with a statement that at the time of the impris-
onment the plaintiff was insane, and that it was dangerous to permit him
to be at large ; that his own safety and that of his own family and the
|>ublic required his confinement. On the trial a judgment was rendered
in favor of the plaintiff for one dollar, and the defendant appiealed. In
discussing the power to apprehend the plaintiff, Gilchrist, J., said: '* But
it is well settled that a private person, without warrant, may lawfully
seize and detain another in certain cases. It wiU be a justification of a
battery if a man hold another to restrain him from mischief. Com. Dig.,
Battery, H. If two persons be fighting, and there be reason to fear that
one of them will be killed by the other, it will be lawful to part and im-
prison them till their anger shall be cooled. Bac Abr., IVespass, D. ;
^ Roll. Abr., 559. It is lawful for every man to lay hands upon another to
I>re8erve public decorum ; as to turn him out of church, and prevent him
from disturbing the congregation, or a funeral ceremony. Glever v.
Hynde, 1 Mod., 168; Hall v. Plumer, 1 Lev., 196. So if a person intend
doing a right act, as to assist a drunken man, or prevent him from going
along the street without help, and a hurt should ensue, he would not be
answerable. Bull. N. P. , 16. And private persons may justify breaking and
enteHng the plaintiff*s house, and imprisoning his person, to prevent him
1 Pollock on Torts, 189 (1886). 559; Glever ▼. Hynde» 1 Mod., 168;
>Look V. Dean, 108 Mads., 116 HaU v. Plumer, 1 Lev., 196; Bull.
(1871); Ck)lby v. Jackson, 12 N. H., N. P., 16; fiancock ▼. Baker, S B.
526 (1842); Com. Dig., Battery, H. ; & P., 260.
Bac. Abr., Trespass, D. ; 2 Roll. Abr.,
iMPRtSOKHSHT. 59
from mBrdering his wife. Hanoock t. Baker> 3 B. & P., 260. Upon these
aathOTit ies, and upon the obvious necessity of the case, if no authorities
could be found, the original restraint of the plaintiff was justifiable.
Colbj T. Jackson, 12 N. H., 526 (1842).
§ 4. Discussion of the subject.— The subject of false im-
prisonment involves, first, the question of arrest and unlawful
detention of the person. It will therefore be necessary, before
proceeding with the discussion of the subject, to examine some-
what the nature and definition of the term arrest, both in
•civil and criminal proceedings, and the general rules of law
relating thereto; the law of arrest with process and without
process, at common law and under the statutory provisions of
different states; the powers of officers and the abuse of legal
process.
§ 5. Arrest defined. — The term arrest is derived, it is said,
from the French word arreta^ to st^p or stay^ and signifies the
restraint of a man's person, obliging him to be obedient to the
law. It may be considered as the beginning of an imprison-
ment. No person may be arrested in a civil action but by
virtue of some writ, precept or command issued by a court,
judge or justice having lawful authority; but for treason,
felony and breach of the peace, at common law, arrests may
be and frequently are made without warrant or precept.^
ArrestSy then, are either in civil or criminal cases. The duties
of the officer are important in each, while the same liabilities
attach to both. To arrest a person is to restrain him of his
liberty by some lawful authority. The arrest is usually made
by actual seizure of the defendant's person, but any touching,
however slight, of the person is sufficient for this purpose. It
is not confined to corporal seizure ; as, where an officer entered
a room where a person was and locked the door, telling him
at the same time that he arrested him, it was held to be a suf-
ficient arrest. And if an officer say: "I arrest you," and the
party acquiesces or afterwards goes with the officer, it is suf-
ficient.^
(1) Abrest in civil pboobedings. — The arrest in civil cases
is now much more rare than formerly. The principal instances
1 AUen on Sheriffs, 93 (1S45). < Rapalje & L. Law Diet., 78 ; Arch.
Pr., 606; 1 Ex. D.,852.
60 FALSE DCPBISONKENT.
in which it is allowed are: Where a person is attached for
contempt of court; or where he is suspected of intending ta
leave the country before final judgment; in certain cases
where a person has made default in the payment of a sum of
mone}' recovered or ordered to be paid by a court or judge;
in penal actions sounding in tort; in summary proceedings
before justices of the peace; where a person has been guilty
of a fraud in contracting a debt sued for, or is a non-resident,
or conceals himself to avoid process, and where he has means
to pay and refiises to do so.^ Other instances may be found
in the statutory enactments of many states.
(2) Aerest in criminal proceedings. — In criminal cases ar-
rests are generally made under a writ of capias or venire/aciasy
or a warrant, but may be made without a warrant in certain
oases; as where a person is seen committing an offense or is
apparently about to commit an offense.'
§ 6. General rules of law relating to arrests. — A legal
arrest can only be, in general, where there is an actual touch-
ing by the officer of the body of the person arrested, however
slight that touching may be; ' as laying hold of a hand which
is out of the window. Some part of the officer must come in
actual contact with some part of the person arrested.^ Bare
words will not make an arrest; as saying to a person: "I
hav® a warrant, and arrest you." * It muse be borne in mind,
however, that these rules apply where the party does not sub-
mit. Words alone, imputing an arrest, will constitute one, if
the part}' understands that he is arrested and submits, al-
though the officer does not touch his person.* If an officer
having process against a person who is in a carriage or on
horseback says to him: "You are my prisoner; I have &
writ against you," upon which he submits, turns back, or goes
with him, it is an arrest; but if, instead of going with the
officer, he flees away from him, it is no arrest unless the officer
laid hold of him.^ It is sufficient if the person be within the
1 Rapalje & L. Law Diet., 79. » Gwynne on Sheriffs, 96; 1 Salk.,
2 4 Steph. Com., 848 ; Rapalje & L. 79.
Law Diet., 79 (1888). "Pike v. Hanson, 9 N. H., 491
•Gener v. Sparkes, 1 Salk., 79. (1838).
*Huntington V. Blaisdell, 2N. H., 'Horner v. Batty n, Bull. N. P.^
818. 62; Gwjnne on Sheriffs, 96.
FALSE IMPEISONMENT. 61
power of the officer and submits to the arrest.^ Where a part}''
and an oflBcer were together, and the party said he had sur-
rendered, and the o£Scer thereupon remarked that he had ap-
pointed a third person his keeper, it was held sufficient evi-
dence of an arrest.* An officer said to a party, " I arrest you."
The party replied, "Wait for me outside the door and I will
come to you." The officer waited, but the party went an-
other way. This was held to be no arrest, though had the
part}'^ gone into the passage with the officer the arrest would
have been complete.' So where the officers watched a party's
house, and would have arrested him if he had tried to get
away, but did not produce the writ, there was no arrest.*
If process be shown to a party, and he then goes voluntarily
with the officer, these acts alone do not, it seems, constitute
an arrest.* So where an officer sent a message to a party in-
forming him of process having issued against him, and request-
ing him to fix a time to call and give bail, which the party did,
there was held to have been no arrest.* But where an officer
accompanied a party to his (the party's) house, where the offi-
cer informed him that he had a writ for his arrest, upon which
the party executed a bail bond and the officer withdrew, this
transaction was held to be an arrest.^ So if an officer puts his
hand upon a man and tells him he must go, and he goes, sup-
posing the officer has power to enforce him, it is an arrest.'
Or, if an officer comes to one who i^ ill in bed and informs
him that unless he satisfies the opposite party or gives bail he
must take him or put him in charge of a keeper, the language
of the officer shows the party sufficiently under restraint to
constitute an arrest.* Where an officer entered a room and in-
formed a party therein that he arrested him, and locked the
door, it is an arrest, for he is in the custody of the officer.^^
> Gold V. BisseU, 1 Wend. (N. Y.), « Berry v. Adarason, 6 B. & C, 524
215 (1839). (1837). ^
'Straat ▼• Ck)och, 8 Greenl., 126 ? Reynolds y. Mathews, 2 Eng.
(1831). Jur., 989.
'RuBseU T. Lucas, 1 Car. &F,, 153 8 Wood v. Lane, 6 Car. & P., 774
(1824). (1834).
<Hender v. Bobbins, 1 Ear. & W., » Grainger v. HiU, 4 Bing. N. C,
204(1835). ■ 212(1838).
^Arrowsmith ▼. Le Mesorier, 2 lo Williams ▼. Jones, Ca. temp.
New B., 211. Hardwicke, 801.
62 FALSE IMPRISONMENT.
lit all cases, to constitute an arrest^ there mast be circum-
stances indicating that the party id under restraint and within^
the power of the officer.^
§ 7. Detention of the person — Amount of force neces--
sary • — In order to sustain a charge for false imprisonment it
is not necessary for the person complaining to show that any
actual violence was used, or that hands were laid upon him,
or that he was shut up in any jail or prison ; it is sufficient in
law to sustain the charge if he has been at any time or place
unlawfully restrained of his liberty, or detained in any man-
ner from going where he wished, or prevented from doing
what he desired.'
Applications of the law. —
(1) What is a sufflcient imprisonment
(a) Detention by cashier of a hank, etc. — Woodward sued Washburn in
case " for the loss of service of one Welcome ^. Smith, his hired roan.
Smith was sent to the Bank of Syracuse a few minutes before 4 o'clock P. M. ,
for the purpose of presenting some of the notes of the bank for redemp*
tion. Washburn was in attendance as the teller, and upon the notes beings
presented he counted out the money and handed it to Smith. While
Smith was counting it the clock struck four, when Washburn locked the
street-door of the bank on the inside and put the key in his pocket. When
Smith had finished counting the money, finding the door locked, he re-
quested to be let out. Washburn answered that the door would be un-
locked when they went to tea. That it might by chance be opened before
and requested him to sit down. About half an hour afterwards the door
was opened to let in a notary who came on business, and Smith passed out.
It was admitted that the bank was usually closed at 4 o'clock and that
Smith was in the habit of coming to the bank with notes for redemption
and was acquainted with the custom. It was held that the detention con-
stituted a false imprisonment and a judgment for the plaintiff was sus-
tained. Jewett, J. : *' Smith was sent there on a legitimate errand at a
proper time ; he had a legal right to remain a reasonable time to transact
the business, and was entitled to depart unmolested as soon as it was com-
pleted. Although the usual hour for closing the bank intervened, the
means taken to detain him longer were unjustifiable." Woodward v.
Washburn, 8 Denio (N. Y.), 369 (1846).
(6) Arrest and imprisonment of infant — Assent immaterial — Nickerson
and others entered a school-room and forcibly seized a child nine years
old, placed there by the direction of his father, who had the legal custody
of him, and carried him away without any previous knowledge on his part
of the purpose. This is sufficient to sustain an indictment for an assault
iGwynneon Sheriffs, 97. 2 Hawk v. Ridge way, 83 111., 473
(1864).
FALSE IHPBXSONMENT. 63
a
and false imprisonment under the Massachusetts statutes, without proof
that the defendants knew that they were violating the father's rights;
and although the acts were done under the direction of the child's mother,
and the child, as soon as he knew that the seizure was for the purpose of
taking him to his mother, was pleased, and desirous of having the purpose
carried out. The child was incapable of giving a valid assent to a for-
cible transfer of him by a stranger from the legal custody of the father to
the custody of the mother* who had no right to such custody, and evi-
dence of such assent is incompetent in defense to an indictment for an as-
sault, etc, upon him in making such transfer. Com. v. Nickerson et al.,
6 AUen (87 Mass.), 518 (1862). Citing State v. Farrar, 41 N. H. 53 : State
V. Rollins, 8 N. H., 550; Mass. Gen. Stata., ch. IftO, |.80; (>>m. Dig., Im-
prisonment, 6. ; 8 Chitty's Criminal Law, 885.
(e) Forcible ftjectment, — In 1884 Wheeler made application to purchase
from the University of California a tract of land bordering on Clear lake,
and made a preliminary payment therefor. The land was at that time un-
surveyed public land of the United States. Afterwards, in February, 1885,
the township embracing the land was surveyed, and on the 19th of April,
1886, the map of the survey was filed in the local land-offlce. From the
time of this attempted purchase Wheeler claimed the land, and, soon after
the map was filed, made application to have it listed over to the state.
There were two cabins on the tract, — one near what is called '*Chappall
Bay," and the other about a mile and a half away, and situate near the lake
shore. In October, 1885, Wheeler employed John Standley to work on this
tract, chopping brush ; and he continued to so work until the 13th of March,
1886, when he was discharged. During this time he lived in one cabin and
Wheeler in the other. Early in March Wheeler went away, leaving a
roan named Hall, who was in his employ, in his cabin. In April Standley
went to the United States land-office and filed his declaratory statement to
pre-empt a quarter-section of the tract, and received [the usual certificate
and receipt. The cabin occupied by Hall was on the land pre-empted.
Two days later Standley told Hall he had a bill of sale of the cabin and re-
quested him to move Wheeler's things out, which was done ; and Stand-
ley commenced living in the cabin. Hall wrote Wheeler about the
matter. Some days later Wheeler returned with the avowed purpose of
removing Standley from the premises, forcibly if necessary. Mooney and
two other persons were with him. They went where Standley was at work
on his cabin and Wheeler said, " You have no legal right and I desire you to
get away." Mooney laid his hand on Standley's shoulder and said, '* There
is your boat and I advise you to get into it." The parties clinched and Stand-
ley was thrown down, and his hands and feet tied ; he was then put into
the boat and taken around to Chappall Bay ; there he was made to get into a
wagon and was driven away. At Chappall Bay he asked the names of the
four persons who had assisted Wheeler in removing him to that point, and
each one of them gave him a false name. For these acts Wheeler and Mooney
were convicted of false imprisonment. They appealed. In afiirming the
conviction Belcher, C. C, said: At the trial the defendants sought to justify
their action upon the ground that Wheeler had had the actual possession
of the disputed premises for more than a year, and was entitled to retain
64 FALSE nCPRISOKMENT.
that poesession; that Standley induced Hall to surrender to him the poeses*
sion of the cabin by fraudulent misrepresentations, and became a naked
trespasser upon the land, and that under the law, as declared in Atherton
Y. Fowler, 96 U. S., 519, and McBrown ▼. Morris, 59 Cal., 65, he could ac-
quire no rights to the land by his attempted pre-emption; and that
Wheeler was therefore authorized to remove him, and to use as much force
as was necessary to accomplish that end. The court below did not adopt
defendants* theory, and therefore nearly all of the rulings were excepted
to, and assigned as errors. For the purpose of the case it may be conceded
that Standloy obtained no rightful possession of the Wheeler cabin, and
that his pre-emption filing was wholly invalid. Still the question remains,
Were the defendants justified in removing him from the land in the manner
they did remove him? In considering this question it must be observed
that the land was uninclosed public land. Wheeler acquired no title to it,
or right to its possession, by his application to purchase it from the univer-
sity. He had a cabin upon it, and had cleared a small area, and planted
some vegetables upon it. But all this evidently gave him no possession of
the portions not actually occupied by him. Standley had commenced
building a cabin for himself, some two hundred yards distant from
Wheeler's cabin. This new cabin was upon ground which had not been
inclosed, cleared or cultivated by Wheeler. While at work upon his cabin
he was seized, thrown down, tied, and carried away by defendants. Upon
these facts it seems to us that no plausible pretense of justification can be
put forth. False imprisonment is the unlawful violation of tlie personal
liberty of another, and every element of the offense seems to have been
fully and clearly shown. People v. Wheeler, 73 Cal., 252; 14 Pac. Rep.,
797 (1887).
(d) What is a sufflcient arrest and imprisonment — Sufficiency of com"
plaint and warrant. — In an action instituted by defendant in error to re-
cover damages sustained by him by reason of a malicious prosecution pre-
viously instituted by plaintiff in error against him before a justice of the
peace of the county, the answer filed by plaintiff in error was a general
denial of the allegations of the petition. A trial was had, resulting in
a verdict for defendant in error for (18. A motion for a new trial was
overruled, and judgment rendered. He then prosecuted a writ of error
to the supreme court. In delivering the opinion Reese, J., said: Plaintiff
in error insists that the verdict of the jury is not sustained by sufficient
evidence. The principal ground of the objection is that neither the com-
plaint made by defendant in error, nor the warrant issued thereon, charged
a criminal offense. While it is true that they were quite informal and
unskilfully drawn, yet it is equally clear that a criminal offense was
charged — that of stealing corn of the value of |75. The recital of the
warrant was that defendant in error did, "in the county of Gkige, take
feloniously and steal corn to the amount of |75 from the said Malone." It
was a sufficient charge of the commission of a crime, and the court did
not err in admitting the complaint and warrant in evidence. The essen-
tial allegations of a complaint for larceny are that the party charged " did
steal, take and carry away " the property named therein. These elements
are all found in the complaint, in the charge " that the said Huston has
FALBB IMPBISONMSNT. 65
unlawfully and feloniously taken, stolen and carried the same off/' It is
contended that defendant in error was not in reality arrested nor deprived
of his liberty, and, therefore, he was not imprisoned. The testimony
shows that the constable went to the house of defendant in error, where
he was, read the warrant to him and told him he was under arrest ; tliat
defendant in error requested the ofQcer to take him, or allow him to go be-
f(»re another justice. The constable consented to this, and, as he had to
subpoena the witnesses for the state, directed defendant in error to meet him
at the office of the justice. He immediately went there, going by way of
a neighbor's, whom he desired to become his surety. They met at the
office of the justice that afternoon, and, upon his application, the cause
was adjourned a week, he giving an undertaking for his appearance, and
thereby procuring his discharge. At the appointed time he again appeared
for trial with an attorney to conduct his defense, and upon his motion the
proceedings were quashed, and he was finally discharged. This was suffi-
cient arrest and imprisonment. Malone v. Huston, 17 Neb., 107 ; 23 N. W.
Bep., 281 (1885).
(2) What is not a sufficient imprisonment
(a) Submitting to detention under misapprehension of the law. — On the
trial of an action for false imprisonment, the plaintiff, Warne, proved that
between February and May, 1804, having been arrested on a capiat ad
satisfaciendum at the suit of one Frederick De Peyster, he executed a
liond, according to the law (2 R. a N. T., 488; 1 Rev. Law, 429), for the
jail liberties, and resided with his family within the limits. The defend-
ant, Ck>nstant, the sheriff, returned the plaintiff in custody on the capias.
On the 11th of May a supersedeas to the capias from the supreme court
was delivered to the sheriff and a discharge of the plaintiff requested.
This the sheriff refused, unless his poundage fees on the capias were paid
him. On the following day the supreme court awarded a writ of habeas
corpus on an affidavit that the plaintiff was not discharged on the super-
sedecu. To the habeas corpus the sheriff made his return that on the 18th
day of February the plaintiff had been cornmitted to his custody on a
oapias dd satisfaciendum^ and that he still remained in his custody for his
fees due on the execution. The court upon reading the return ordered
the plaintiff to be discharged. After this order the plaintiff remained in
the limits with his family for two or three months, and he never person-
ally demanded bis discharge, though it was demanded by his attorney of
record. On the trial the judge ruled that the plaintiff, being upon the
limits, at liberty to go at large if he chose to risk a suit upon his bond,
and subject to no other restraint, could not maintain his action and ordere<l
a nonsuit. On appeal Yates, J., said: **The bond given by him for the
jail liberties under the statute could only continue operative so long as the
authority by virtue of which he was at first confined, and on which
the bond is g^unded, remained in force. The delivery of the supersedeas
to the defendant destroyed the further operation of the coptos, and with
it the necessity for, or further effect of, the security, so that the plaintiff
was thereby virtually and legally discharged from imprisonment, and
might immediately hereafter liave left the jail liberties without risking
ft
66 FALBS IMPRISONMENT.
anythinfi:, had he been so disposed ; nor could the sheriff legally have pre-
vented his departure.'* . . . '* We are of opinion that the judge prop-
erly ruled that this restraint, underall the circumstances, was not sufficient
to sustain the action, and that a judgment of nonsuit must be entered."
Warne v. Ck>nstant, 4 Johns. (N. Y.), 82 (1809), cited ia 61 How. (N. Y.) Pr.,
428.
(b) Officer carried away to <ea.— Elias K. Sporr, a constable of the
city of Boston, went on board the ship Granada, of which Nathaniel
Spooner was master, with a civil process, for the purpose of arresting the
steward of the ship, and was carried away to sea. A suit for false impris-
onment against the master of the ship was the result. The defense was
placed upon two grounds: (1) At the time, etc., the defendant, though
master of the ship, had no control thereof. (2) The plaintiff did not use
reasonable diligence in arresting the steward and taking him on shore.
At the trial the evidence tended to show that the ship was in her home
port, on the point of sailing, when the plaintiff went on board ; her sails
were set and the fasts by which she was held to the wharf were singled.
The plaintiff upon going on board immediately found and arrested the
steward, but remained standing with him on board ten or twelve minutes
without attempting to leave the ship. Repeated notices were given to
all persons not belonging on board to quit the ship. The owner of the
ship stood on the wharf at her side and gave the order to the pilot, who
was on board, to cast off the fasts, and the pilot gave the orders to the
crew. The pilot testified that during the alleged trespass he had control
of the ship's movements; that he cast off the fasts by orders directly from
the owner, and that the master had no agency in the matter. The court
instructed the jury that if the defendant had not the control of the ship,
still if a trespass was committed, as alleged, and the defendant counte-
nanced and assented to it, directly or indirectly, he was liable as a tres-
passer. The jury were further instructed that if the plaintiff had not used
due diligence in making the arrest and returning to the wharf, and if
proper notice had been given to him of casting off the fasts, he had no
right to complain that the ship sailed and carried him to sea. The jury
found for the defendant, and on being asked to state the grounds of their
verdict they replied that the plaintiff had not used due diligence in mak-
ing the arrest, and that the owner of the ship and not the defendant had
charge of her; and this finding was sustained by the supreme courts
Sporr V. Spooner, 12 Met (58 Mass.), 281 (1847).
§ 8. Summary of the law of arrest — The rule stated by
Murfree. — ^* From all the cases and dicta on this subject may
be gathered the general principle that whatever practically or
theoretically gives to the ofQcer the control of the person con-
stitutes an arrest; that personal seizure in the name of the law
is the most obvious, usual and unequivocal mode of executing
process; that a hona fide submission, evidenced by words, or
by the execution of bail bonds, or other like instruments^ is an
FAL8B IMPBI80NHE}7T. 67
adequate substitate for personal contact; that, without such
contact, words of arrest by the officer, accepted by the de-
fendant, or not straightway resisted by protest or flight, or
otherwise, constitute such an arrest as will bind alike the
officer, plaintiff and defendant." ^
§ 9. Arrest with process.— Of course it cannot be said
that an arrest under a regular and sufficient warrant is illegal.
Such process is always a complete justification to the officer
making the arrest.
§ 10. What Is a regular and sufficient warrant — The law
stated by Ashe^ J. — "The conclusion that we deduce from
the authorities is, if the warrant is for an offense within the
jurisdiction of the justice, and the crime charged is described
with sufficient precision to apprise the accused of the offense
with which he is charged, the warrant is good, and will pro-
tect the officer. But this applies only to those cases where a
justice acts ministerially, as in warrants to arrest offenders
when he has no final jurisdiction. Where he takes cogni-
zance of criminal, actions within his jurisdiction, the warrant is
the indictment, and must set out the facts constituting the
offense with such certainty that the accused may be enabled
to judge whether they constitute an indictable offense or not,
and may be enabled to determine the species of offense with
which he is charged." *
§ 11. The essentials of a criminal complaint and war-
rant.— It must be remembered that criminal complaints must
often be made by persons of limited education before justices
who are not lawyers, and who are not at all acquainted with
legal niceties. To require them to do more than describe of-
fenses with substantial correctness, or to give in the warrant
any mbve information than is needed to inform the defendant
of the crime he is charged with, and that it is a crime, would
be to make it practically impossible to hold shrewd criminals
at all in many places, and we think it would be of no use to
any one. The criminal-law text-books do not, so far as we
have examined them, require any particular formality in war-
rants of arrest, but they are treated of as varying according
to the practice of different places.'
1 Marfree on Sheriffs, g 147 (1884). > Haskins v. Ralston, 69 Mich., 68;
•Statev. Jones, 88 N. C, 671(1888). 87 N. W. Rep., 45 (1888).
68 FALSE IMPBI80NMENT.
§ 13. Officers protected by process — Abuse of process,
etc.— Process, when in due form, or where its defects are
only such as render it voidable only, and not void, will pro-
tect the officer in the due and legal execution thereof, but it
does not protect the officer in any abuse of the person or
property of the person against whom such process is issued.
And where the process is regular, and the officer has exe-
cuted it in due manner, yet if he and the complainant or prose-
cutor combine to extort money from the defendant in the
process, such officers thereby lose the protection afforded by
such process, and become liable for false imprisonment.^ We
shall have occasion to treat of this subject more extensively
in another part of this work.
§ 13. Arrest without process. —
(1) At common law. — By the common law no person could
in general be arrested, without a warrant, for a mere misde-
meanor unattended with violence.* But if *a felony, treason
or actual breach of the peace had been committed by a person
arrested, the arrest might be justified b}^ any one without
warrant. If an innocent person was arrested upon suspicion
by a private individual, such individual was excused if a felony
was in fact committed and there was reasonable ground to
suspect the person arrested ; but if no felony had been com-
mitted by any one, such arrest without warrant by a private
individual was illegal. An officer, however, would be justi-
fied if he acted upon information from another person, which
he had reason to rely upon,' though if a peace officer of his
own will took a person into custody on suspicion, he must
prove that the crime charged had been committed.* Officers
were required to arrest felons and might arrest persons sus-
pected of capital offenses whose guilt was not certain. If
assaulted in the execution of their duty they might apprehend
the offender, and keep him in prison a reasonable time, to be
carried before a justice of the peace to be committed or fined
1 Crocker on Sheriffs, § 59 (1871); •Saoiuel v. Payne, Doug., 859; 8
Barb. Crim, Law, 581, 582; Dickin- Camp., 420.
son V. Brown, Peake's N. P., 284 « Holly v. Mix, 8 Wend., 850;
(1780). Gwynne on Sheriffa, 622.
4 * 1 Chitty's Crim. Law, 15.
FALSE IMPBISONMEXT. 69
by him.* It is their duty to arrest all persons, with their
abettors, who oppose the execution of process.^
(2) Undeb statutes. — The subject of arrest without process
has been considered of sufficient importance in many of the
states of our Union to be matters of statutory regulation.
An illustration — The statute of Illinois. —
An arrest may be made by an officer or by a private person without war-
rant for a criminal offense committed or attempted in his presence, and by
an officer, when a criminal offense has in fact been committed and he has
reasonable ground for believing that the person to be arrested has com-
mitted it. R a 111. 1887, p. 488, sec. 4.
Applications of the law. —
(1) Time of making an arrest upon view and.without a toarrant — Resist-
ing an officer making a search,
Grossman, a constable of the commonwealth, was engaged in searching
Mr. Leddy's tenement for intoxicating liquors under a warrant duly issued
under a statute. Leddy hindered and opposed him. Some blows were ex-
changed. At some stage of the proceedings the constable arrested Leddy ;
but it was uncertain at what time, whether after the assault and hinder-
ing had ceased or before that time, the arrest was made. Leddy brought
an action for false imprisonment. On the trial the court instructed the
jury that if the arrest was so connected with what had previously taken
place between the plaintiff and the officer as to be part of the same transac-
tion, the defendant had a right to arrest the plaintiff then and there with-
out a warrant; but otherwise he had no such right. The verdict was for
the defendant and was sustained. Leddy v. Grossman, 108 Mas&, 237
(1871).
(2) Arrest ivithout tffarrant, justifiable — Brexich of the peace.
At the time of the arrest complained of the defendant was a policeman
of the city of Detroit. The plaintiff was a clerk of Mr. Van Baalem, a
pawnbroker. The officer entered the pawnbroker's shop, when the clerk
ordered him out, using profane and indecent language towards him as he
left On the next day the parties met again, when the plaintiff, Davis,
again used towards the officer abusive epithets, calling him *' a Ood damned
son of a bitch." Davis continued to use foul language towards the officer
and followed him across the street, attracting the attention of citizens
passing along the street, among whom were many ladies and children.
The officer went to him and asked him for his name, which he refused to
give, saying to him, ** If you lay your hands upon me I'll shoot you," call-
ing him at the same time a vile name. The officer thereupon arrested him,
took him to the city attorney's office, and made complaint against him
under the city ordinance, which provides that ** no person shall be guilty of
1 1 Ghitty, Grim. Law, 25. (N. Y.), 85; Gwynne on Sheriffs,
sCoyles v. Hurtin, 10 Johns. 52a
70 FALSE IMPBISONMENT.
using indecent or immoral language, nor be guilty of any indecent or im-
moral conduct or behavior, on any public street, lane, alley, square, park or
space in said city," the penalty being fine or imprisonment. The city at-
torney took the complaint, but for some reason failed to prosecute it.
Davis was discharged. This is the defendant's statement of the facts, and
he claims that if found true by the jury they constitute a perfect defense
to the action. But upon most of the material facts stated by him he was
contradicted by the plaintiff.
The court charged the jury, in substance, that the only question for
them to consider was the damages. The finding was for the plaintiff. Ihe
defendant prosecuted a writ of error. In delivering the opinion of the
court, Sherwood, J., said:
** It is only needful for us to review the case as presented on the part of
the defendant, and if, from his showing, he was not justified, the verdict
must stand.
"There seems to be no question that the official position of the defend-
ant in the city of Detroit constituted him a conservator of the peace. The
arrest was made without warrant. At the time it was made (midday) the
plaintiff was on the sidewalk, where citizens, men and women, were con-
stantly passing and repassing, and there, in a loud, boisterous manner, he
called the defendant a 'God damned son of a bitch,' and continued to
use other indecent laufruage. When asked for his name he refused to give
it, and threatened to kill the officer if he laid his hands on him. Only a
few minutes before, the plaintiff had used the same and other profane
language towards him in the presence of a crowd upon the street. There
is no qnestion about the officer's right to arrest for a breach of the peace
committed in his presence without process.
** Did the language and conduct of the plaintiff on that occasion amount
to a breach of the peace? The answer must necessarily determine the case.
The offense, whatever its character, was committed in the presence of the
officers in the public street in a city, in the presence of citizens. The lan-
guage used was not only vile and profane, but forbidden under penalties
both by the by-laws of the city and the statutes of our state. It was
against decency and public morals, of the most aggravating character,
well calculated to arouse the passions and induce personal violence, which
was threatened if the officer laid hands upon the offender.
"Now, what is understood by *a breach of the peace?' By 'peace,' as
used in the law in this connection, is meant the tranquillity enjoyed by citi-
zens of a municipality or community where good order reigns among its
membei-s. It is the natural right of all persons in political society, and any
intentional violation of that right is ' a breach of the peace.' It is the of-
fense of disturbing the public peace, or violation of public order or public
decorum. Actual personal violence is not an essential element in the of-
fense. If it were, communities might be kept in a constant state of tur-
moil, fear and anticipated danger from the wicked language and conduct
of a guilty party, not only destructive of the peace of the citizens, but of
public morals, without the commission of the offense. The good sense and
morality of the law forbid such a construction. I think the language and
conduct of Davis in this case shows him guilty of a breach of the peace.
FALSE IMPBI80N1[£NT. 71
and in the act of committing it at the time he was arrested. The court
should have submitted the defendant's case, as he made it, to the jnrj
under proper instructions, to ascertain the truth of the facts as stated by
him and his wituesses. This the court did not do, and the failure was
error*" Judgment reversed. Davis v. Burgess, 54 Mich., 614; 20 N. W.
Bep.» 540 (1884).
(8) Power to arreat taiihout warrant must he exercised promptly.
In an action for false imprisonment, the defendant justified upon an
arrest of plaintiff made by him, then a police omcer of the city of Minne-
apolis, without a warranty for a violation in his presence of an ordinance
of that city. There was evidence tending to show that about noon the
plaintiff violated the ordinance in the presence of defendant. The defend-
ant did not then attempt to make the arrest, but went about his other
duties during the afternoon, and arrested plaintiff at 5 or 6 o'clock in the
evening. There was also evidence tending to show that plaintiff was com-
uiitting a similar violation of the ordinance at the time of the arrest. The
court instructed the jury in effect that plaintiff was at the time of the ar-
rest committing a violation of the ordinance that would justify the arrest,
though without a warrant, but that defendant had no authority to arrest
in the evening for a violation at noon.
Gilftllan, C. J. : Section 1 1 , chapter 105, General Statutes 1878, provides :
*' A peace officer may without warrant arrest a person — First, for a public
offense committed or attempted in his presence; second, when a person
arrested has committed a felony, although not in his presence; third, when
felony has in fact been committed, and he has reasonable cause for believ-
ing the person arrested to have committed it; fourth, on a charge made,
upon reasonable cause, of the commission of a felony by the person ar-
rested."
At the common law, a constable might, without warrant, arrest for a
breach of the peace committed in his view. 4 Bl., 2U2. But it was well
settled that in case of an offense not a felony the arrest must have been
made at the time of, or within a reasonable time after, its commission.
Regina v. Walker, 25 £ng. Law & Eq., 589; Cook v. Nethercote, 6 Car. &
P., 741; Clifford v. Brandon, 2 Camp., 358; Derecourt v. Corbishley, 85
E. C. L., 188; Phillips v. Trull, 11 Johns., 480; Taylor v. Strong, 3 Wend.,
384; Meyer v. Clark, 41 N. Y. Superior Ct, 107.
In case of felony actually committed, although not in his presence, he
might, upon probable suspicion, arrest without a warrant. The reason for
the distinction lay in the greater gravity of the latter class of offenses, and
the greater importance to the public of bringing the offenders to punish-
ment.
The statute seems to be a re-enactment of the common-law rule, with
this change: that the first subdivision enlarges the class of cases in which
a peace officer may arrest where the offense is committed in his presence,
so that such arrest may be made for any public offense, felony or misde-
meanor, though not amounting to a breach of the peace. But there is no
reason to suppose that it was intended to change in any other respect the
conditions on which the arrest may be made. The power to arrest without
72 FALSE IHPIUSONMENT.
warrant, while it may in some cases be useful to the public, is dangerous
to the citizen, for it may be perverted to purposes of private malice or re-
venge, and it ought not, therefore, to be enlarged. When it is said that
the arrest must be made at the time of or immediately after the oifense,
reference is had, not merely to time, but rather to sequence of events.
The ofiQcer may not be able, at the exact time, to make the arrest ; he
may be opposed by friends of the offender ; may find it necessary to pro-
cure assietance ; considerable time may be employed in the pursuit. The
officer must at once set about the arrest, and follow up the effort until the
arrest is effect-ed. In Regina v. Walker, supra, some two hours had elapsed
between the offense and the arrest, and it was held that the authority to
arrest was gone, because there was no continued pursuit ; and the same
was held in Meyer v. Clark, supra, because the officer had departed and
afterwards returned, the court saying, '*the shortness of the interval does
not affect the question/'
In this case, some five hours liaving elapsed between what occurred at
noon and the arrest, during which the defendant was not about anything
connected with the arrest, tlie court was right in its instruction that there
was no authority to arrest for that occurrenoe. Wahl v. Walton, 80 Minn.,
506; 16 YJ. W. Rep., 897 (1883).
§ 14. The manner of arrest — Use of handcuffs, etc., by
officers. — While an olficer is bound to treat his prisoner with
such kindness and humanity as may be consistent with secu-
rit}', and will not be warranted in employing any harsh or
unnecessary restraint, yet it is his duty to use such reasonable
precautions as the case requires to prevent escape, especially
in arrest for felony or offenses of magnitude. His action, in
this regard, is to be considered in the light of all the circum-
stances of the particular case bearing upon the question of
what means are reasonably necessary to keep his prisoner
secure. There must be some discretion reposed in an officer,
making an arrest for felony, as to the means taken to appre-
hend the supposed offender, and to keep him safe and secure
after such apprehension. And this discretion cannot be passed
upon by a court or jury unless it has been abused through
malice or wantonness or a reckless indifference to the common
dictates of humanity. It must be found that the officer was
unnecessarily rough and inhuman in his treatment of the per-
son arrested, and without any view to prevent the escape ot
such person. But it is not necessary that the prisoner must
be unruly or attempt to escape, before he can be handcuffed,
or do anything indicating a necessity for such restraint. Nor,
in the event that he does nothing, at the time of the arrest, in
FALSE IMPSISOmfBin*. 78
the way of attempting to escape or resisting the officer, is it
necessary that he should be a notoriously bad character in
order to justify the tying of his hands. There may be other
and sufficient reasons why such extreme measures should be
resorted to in order to secure and safely lodge the prisoner.*
Of course the arrest of an innocent man is an indignity hard
to be borne, and the tying of his hands with cords or irons is
something that makes the blopd run chill to contemplate; but
both are indignities ofttimes without redress, and a necessary
consequence of the due administration of justice in the sup-
pression of crime. But an officer is bound to act humanely,
and cannot lightly and without reason either arrest or harshly
treat a supposed offender, be he innocent or guilty. It is, no
doubt, true that petty officers, too often unduly inflated by a
too high conception of their office and authority, are inhuman
and cruel in their treatment of suspected persons. Such con-
duct the law does not hesitate to punish. We must bear in
mind that the hardened and skilful offender against the crim-
inal laws is sometimes, and generally, the meekest when ar-
rested, but his eye is open to every avenue of escape; and to
sa}' that unless such person attempts to escape, resist arrest,
or is known to the officer to be a notoriously bad character,
he cannot be shackled for an hour or two, until he can be con-
veyed to a place of safety, is to lay down a rule which will
make escapes easy and place new obstacles in the way of the
apprehension and safe-keeping of offenders. The officer can-
not stop, when the man is unknown to him, at the moment of
arrest, to inquire into his character, or his intentions as to es-
cape, or his guilt or innocence of the offense charged against
him. His duty is to take him, to safely keep him, and to bring
his body before a magistrate. If he does this without wanton-
ness or malice, it is not for a jury to find that his precautions
were useless and unnecessary in the light of after-acquired
knowledge of the true character and intent of the accused,
and to punish the officer in damages for what honestly ap-
peared to him at the time to be reasonable and right.^
1 Firestone v. Rice, 71 Mich., 877; « Firestone v. Rice, 71 Mich., 877;
88 N. W. Rep., 88t (i888) ; Cochrane 88 N. W. Rep., 689 (1888).
V. Toher, 14 Minn., 885; State v. Stal-
cup, 2 Ired., 50.
74 FAL8B IMPSI80NHBNT.
§ 1 5. The rule stated by Gwynne.^ — Violence should be
avoided if possible in making an arrest The sheriff or other
officer may, under peculiar circumstances, lay hands on an-
other in order to serve him with process;* but cannot drag
him about or strike him unless such acts are rendered neces-
sary by his resistance.' The officer making an arrest may
always use as much force as is necessary to accomplish his
object, and cannot be made liable except for wanton violence/
The law illustbatbd. —
(1) Use of handcuffs*
Daniel Firestone sued Walter J. Rice and Frank Fenn for false impris-
on ment. Rice was sheriff and Fenn was a night-watch in a village in Alle-
gan county, Michigan. It was represented to the sheriff by William
Dumont and his brother John, who waked him up in the night, that John
Dumont^s dam had been cut that night, and that they had tracked two
persons directly from the spot where the dam was opened to the house of
John Zeigler. The Dumonts were old citizens of Allegan county, and
there was no reason why the sheriff should doubt the truth of the repre-
sentations made by them, and a warrant was procured by John Dumont
Against Zeigler, and also directed against another as an unknown person.
The sheriff called upon Fenn to assist him in the matter, and they went
together in a buggy. Upon reaching the house, they found Zeigler and
Firestone in bed. The wet boots of Zeigler and the shoes of Firestone
were found at the house, and measured by Dumont, who claimed that
they corresponded exactly with the tracks. The pantaloons of both par-
ties were wet around the bottom of the legs, and a spade was found inside
the kitchen door, which appeared to have been recently used. The lower
part of this spade was wet and clean, but upon the upper part of the blade
sand was sticking, which Dumont informed Rice was in appearance like
the sand of which his dam was constructed. They were both arrested,
and Fenn, by direction of the sheriff, put handcuffs on Firestone. The
arrest was made in the night, at a late hour, under the supposition, if not
made then, that the persons sought, or at least Firestone, might escape.
The night was dark, and the country wooded. The parties had to be taken
about eighty rods, along an old winding wood road, to the buggy, every
foot of the way 'Opening an inviting opportunity to escape. From there to
Allegan was a night drive, with two officers and two prisoners. There
was no harshness upon the part of the sheriff or Fenn other than the plac-
ing of the handcuffs upon Zeigler and Firestone. They made no com-
plaint at the time. There was nothing tending to show malice or wanton-
ness, or any ill will, or even a malevolent impulse, of the sheriff towards
1 Gwynne on Sheriffs, 97 (1849). » Kreger v. Osborn, 7 Blackf., 74
2 Harrison v. Hodgson, 10 B. & C, (1843).
445(1830). * Wright v, Keith, 24 Me., 158
(1844).
FALSE IHPBISONMENT. 75
the prisoners. He put the handcuffs upon them for no other purpose than
to prevent escape, and that he had good reason to believe it was necessary
to do so. On the trial the jury returned a verdict for both defendants.
Firestone appealed. On affirming the judgment, Moore, J., said : It turned
out afterwards that Firestone was innocent of any offense, was neither a
** slippery" nor desperate character, but an inoffensive and reputable citi-
zen, and that he never had the remotest idea of trying to escape. But
that cannot alter the rule which saves a sheriff harmless from an act
which appeared, at the time it was done, to be both necessary and reason-
able. . . . The chief indignity complained of was the handcuffing of
the plaintiff. **To mulct the sheriff, under the circumstances, in damages
for handcuffing the plaintiff while conveying him, on a dark night,
through the woods to the village of Allegan, when ho had good reason to
suspect him to be guilty of a felony, and one likely to escape at the first
opportunity, when it was done neither in recklessness, wantonness, nor
malice, would be to put in peril every officer of the law who, under like
circiunstances, was alert and vigilant in the performance of his duties in
the arrest of supposed criminals.*' Firestone v. Rice, 71 Mich., 377; 88
N. W. Rep., 885 (1888).
Note. — The plaintiff was arrested for an offense under section 9168,
Howell's Statutes (Mich.), which reads as follows : '* Every person who shall
wilfully and maliciously break down, injure, remove or destroy any dam,
reservoir, canal or trench, or any gate, flume, flash-boards or other appur-
tenances thereof, or any levee or structure for the purpose of conveying
water to any such dam or reservoir, or any of the wheels, mill-gear or ma-
chinery of any mill, or shall wilfully or wantonly, without color of right,
draw off the water contained in any mill-pond, reservoir, canal or trench,
shall be punished by imprisonment in the state prison not more than five •
years, or by fine not exceeding f500, and imprisonment in the county jail
not more than one year." And by Howell's Statutes of Michigan, sec-
tion 9480: "The term 'felony,' when used in this title or in any other
statute, shall be construed to mean an offense for which the offender, on
con Fiction, shall be liable by law to be punished by death or by imprison-
ment in the state prison."
§ 16. Abuse of process. — Officers sometimes render them-
selves liable in actions for false imprisonment for what is
termed in law abuse of legal process; as where the officer re-
fuses proper hail,* uses excessive force, subjects the defendant
named in bis process to unwarrantable insults or indignities,
treats him with cruelty, denies him proper food, or otherwise
subjects him to oppression or undue hardship,^ or uses, or
iMechem on Public Officers, § 771 2 Wood v. Graves, 144 Mass., 865;
(1890); Berrier v. Moorehead, 22 69 Am. Rep., 95; Baldwin v. Weed,
Neb., 687; 86 N. W. Rep., 118 17 Wend. (N. Y.), 224; Page v. Cush-
(1888). ing, 88 Me., 52a
76 FAL8B IMPBI80NMENT.
permits to be used, the process to extort money or other prop-
erty from the defendant* In regard to the proper use of his
process, the ofBcer is bound oy law to know what the law is,
and he must keep within its limits at his peril.^
§ 17. Discassion of the subject by Murfree. — ^'The man-
ner in which an arrest should be made is a matter of no small
importance. It is hardly necessary to say that the law, while
requiring a strict obedience to its mandates, will tolerate in
its ministers no unnecessary violence. Moliter manua impo-
nere is as far as, under any normal circumstances, an officer
can go with safety; and one who endangers the lives or limbs
of others, or inflicts great bodily injuries in the discharge of
his official duties, should be prepared to justify bis conduct
by proof showing that be acted under the pressure of an irre-
sistible necessity. Especially is this true with regard to civil
process." . • . " There is prevalent, not only among offi-
cers of every grade, but throughout the communit}', an exag-
gerated idea of the powers of officers in this respect which
the law vouchsafes to its ministers. A sheriff, constable or
policeman with a revolver and a warrant charging a misde-
meanor is popularly supposed to hold the keys of life and
death, and as he frequently shares in the delusion, he abuses
his powers with, sometimes, very tragical results. What the
law does allow in the use of physical force is the very minir
mum by which the desired object can be obtained. What-
ever a rash or over-zealous officer may do in excess of this is
without warrant of law." *
An application of the law. —
Almse of process — Officer exceeding his potoers — Carrying person ar-
rested out of the jurisdiction,
Edmund 0. Bacon was a deputy^eherifT. Ho arrested, without a war-
rant, Joseph Papineau, who was found intoxicated, in the town of Black-
stone, kept him until the next morning and then took him to the town of
Uxbridge, before a trial justice in that town, and made a complaint against
him for drunkenness. There was no police court and no trial justice quali-
1 Holly V, Mix, 8 Wend. (N. Y.). Citing State v. Mahon, 8 Harr.
850; ^ Am. Dec., 103. (Del.)* ^^ (1889); Kreger v. Osborn,
^Malcumson v. Scott, 56 Mich., 7 Blackf., 74 (1848); Wright v. Keith,
459 (1885). 84 Me. , 158 (1844) ; Harrison v. Hodg*
' Murfree on Sheriffs, § 148 (1884). son, 10 B. & Cr., 445 (1830).
^ALSS IHFBISONKENT. 77
fled to act in BlackstODe, but there were two jtistioes of the peace. After
his release Papineau sued Bacon for false imprisonment. On the trial he
contended that he should have been taken before a justice of the peace in
Blackstone and the complaint made there. The conrt held otherwise and
the verdict was for the defendant. The statute under which he was ar-
rested provides that the officer making the arrest shall " take him before
some justice of the peace or police court in the city or town wherein he
has been found." Stat. Mass. 1869) ch» 415^ § 42. On exception, CtiAp-
man, C. J., said: '*The statute thus prescribes a peculiar method of deal*
ing with a person arrested while intoxicated, and its evident purpose is
that such person shall be dealt with in the city or town where he is found.
The plaintiff should have been taken before a justice of the peaoe in Black-
stone and there complained of and examined. A substantial compliance
with the statute is sufficient; but it was not substantially complied with
by taking the plaintiff to a magistrate in another town in the first mstance,
there being a justice of the peace in Blackstone.'* The authorities sustain
the position that the officer was a trespasser, and the exceptions were bus*
tained. Papineau v. Bacon, 110 Mass., 810 (1872). Citing Qainey v. Park*
man, 100 Mass., 816; Tubbs v. Tukey, 8 Gush., 488; Stetson v. Packer, 7
Cush., 562*; Ewigs v. Walker, 0 Gray, 95; Houghton v. Wilson, 10 Gray,
365; Kent v. Willey, 11 Gray, 868, 878; Kennedy v. Favor, 14 Gray, 200.
§18. The officer must arrest the right person — Mis-
nomer.— It is almost unnecessary to say that an ofScer should
be careful to arrest the right person, for if he arrests one per-
son upon a writ against another he becomes liable in an action
for false imprisonment. And this is true notwithstanding the
similarity and even the identity of the names.^ Lord Ellen-
borough said that process ought regularly to describe the party
against whom it is meant to be issued, and the arrest of one
person cannot be justified under a writ sued out against
another.' An officer will be held a trespasser if he arrests a
person who is named in a writ by another than his true name,
and this rule holds true although the misnomer was only in bis
christian name '
§ 19. A distinction.— In the rules of law applying to the
doctrine of misnomer a distinction is taken between mesne and
final process. If an officer arrest a person upon a capias ad re*
spondendum served by a name other than his true name, he is
liable as a trespasser; but if a defendant is misnamed in a
capias ad satisfaciendum^ the officer making the arrest is not
iMurfree on Sheriffs, § 155 (1884). v. Horwood, 8 Camp., 108; Kelly v.
'Shadgett v. Clipeon, 8 East, 828; Laarence, 10 Juriat, 636.
Oole V. Hindaon, 6 Term, 284; Price •Wilkes v. Lorch, 2 Taunt., 899.
78 FALSB DCFBISOISTMENT.
•
liable, because the defendant should have pleaded the misnomer
in abatement, and by failing to do bo he is estopped from say-
ing that the name by which he was served is not his real name.^
§ 20. Arrest of night-walkers.— Watchmen and beadles
have authority, at common law, to arrest and detain in prison,
for examination, persons walking the streets at night when
there is reasonable ground to suspect felony, although there is
no proof of a felony having been committed.* It is said by
Hawkins and others that every private person may, by com-
mon law, arrest any suspicious night-walkers and detain them
until they give a good account of themselves.' But where a
person is taken up in the night as a night-walker, and dis-
orderly, .though by a lawful officer, it has been considered
that the arrest would be illegal, if the person so arrested were
innocent and there were no reasonable grounds of suspicion
to mislead the officer.*
§21. Night-walker defined. — A night-walker is a person
who sleeps by day and walks by night, that is, persons of
suspicious appearance and demeanor who walk by night.^
§ 22. Discussion of the subject. — The reason why night-
walking and lurking about the premises of peaceable inhabit-
ants in the night-time is regarded as criminal conduct is
because such conduct cannot, in general, be for any but a bad
purpose, and it tends to the annoyance and discomfort of
peaceable citizens who have the right by law to be exempt
from such disturbances. What family, in a large city fre-
quently infested with burglars and other desperate criminals,
could retire tb their beds and enjoy the quiet and repose due
to them when they were conscious that suspiciously acting
persons were lurking about their premises? And will it be
said that the law gives no right to have such persons arrested
and removed, until a burglary is actually committed or at-
tempted? The right of arrest in such cases by the proper
1 Murfree on Sheriffs, g 155 (1B84) ; > Hawkins' Pleas of the Crown, ch.
Crawford v. Batch weH, Strange, 1918 ; 18. § 6 ; ch. 12, § 20.
Fisher ▼. Magnay, 6 Man. & Q„ 779 « Tooley*s Case, 2 Ld. Raym., 1296 ;
(1841). Miles v. V^eston, 60 111., 861 (1871).
^Lawrence v. Hedger, 8 Taunt., ^ 2 Bouvier's Law Dictionary, 280 ;
14; Miles v. Weston, 60 111., 861 5 Edward III., oh. 14; Stokes v.
(1871). State (Ala.), 9 So. Rep., 400 (1891).
FAL6B IHPRISOKMEIJFT. 79
officer is supported by the same reasons and necessities in
the present that it was in the earlier history of the common
law.^
Thb law illustrated. —
Wliat is probable cause to arrest a night-walker.
Weston brought an action against Miles for false imprisonment. On the
night of the arrest complained of, two men had been walking in front of
Miles* house in Chicago apparently taking observations, and when any one
approached they would separate, and come together again, and thus kept
lurking around for an hour and a half, until late in the evening, when Miles,
becoming alarmed at the suspicious conduct, brought two policemen to
the place where the men had been, and found Weston there, who upon
being interrogated as to his purpose and told that he had been hanging
around there for an hour and a half, replied that he had been there two
hours, giving no further account of himself. One of the policemen arrested
him, and, without any directions from Miles as to what should be done with
him after the arrest, he was taken by the officer to the station. He was
tried by the police justice and fined. He then brought an action against
Miles for false imprisonment, claiming that his arrest was illegal. He re-
covered a judgment on the trial, but Weston took the case to the supreme
court, where Mr. Justice McAllister, in the opinion reversing the judg-
ment, said: *slt is true the plaintiff testified that he had been at the place
in question but one or two minutes, yet five witnesses testify that he said,
when questioned, that he had been there two hours, which admission
was sufficient, under the circumstances, to cause the officer to believe him
to be one of the two night-walkers who had been observed hovering about
defendant's house. But for this statement he probably wpuld not have
been arrested. If his own declaration caused his arrest, surely this cir^
cumstance should go far, under the other circumstances of the case, in
mitigation of damages, if not to justify the arrest. Miles v. Weston, 60
m., 861 (1871).
§ 28. Power of magistrates to Imprison for breaches of
city and Tillage laws. — For the breach of an ordinance the .
party, as a general rule, forfeits a sum of money, which may
be recovered in an action of debt. Statutory provisions are
not unusual, however, authorizing the magistrate before whom
the recovery is had to order the imprisonment of the offender
nntil the fine and costs are paid. The imprisonment is not to
exceed some reasonable limit fixed by the statute. Ordinarily
these proceedings are not criminal in form, and the magistrate
before whom a recovery of this nature is had has no more
power to order the imprisonment of the defendant than he
1 Miles y. Weston, 60 HI., 861 (1871).
80 PAL8B IMPBISONMENT.
would at the end of an ordinary civil trial to order the com-
mittal of the defendant, unless, of course, he is proceeding
under a statute which specially authorizes him to do so, in
which case the provisions of the statute must be strictly fol-
lowed.^ When officers assume to imprison without the au-
thority of law, or without the forms and processes usual and
necessary to be observed or employed, they become liable for
false imprisonment. So, under a statute of Illinois limiting
such imprisonment to six months, it was held that a judgment
which failed to state the limit as fixed by the statute, and a
mittimus or warrant of commitment issued upon it which also
failed to state the limit, were both void.*
§ 24. Magistrates cannot designate the place of confine-
ment.— In the absence of statutory provisions authorizing a
magistrate committing a person to prison to designate the
place of imprisonment, he has no power to do so, and should
he commit the person to a place not established or fixed by
law as a prison for such persons, it seems he will be liable in
trespass for false imprisonment. So held in Illinois, where
the magistrate committed a person to the common jail of the
county for a refusal to pay a fine on conviction for a breach
of a village ordinance, there being no ordinance of the village
fixing the jail as a place of confinement for such ofl^enders.*
§ 25. Power to arrest in constables and police officers. —
filackstone says: ^^The constable hath great original and in-
herent authority with regard to arrests. He may, without
warrant, arrest any one for a breach of the peace committed
in his view and carry him before a justice of the peace; and
in case of felony actually committed or a dangerous wounding
whereby felony is likely to ensue, be may, upon probable sus-
picion, arrest the felon, and, for that purpose, is authorized
(as upon a justice's warrant) to break open doors and even to
iQurney ▼. Tufts, 87 Me., 188; Wood well, 10 Mass., 866; Bradley-
Howard y. The People, 8 Mich., 208; v. Trustees, etc., 58 111., 858; Qrumon
Danforth v. Classen, 21 111. App., v. Raymond, 1 Ck)nn., 40.
577; Teft v. Ashbaugh, 13 111., 602; 'Danforth v. Classen, 21 IlL App.,
Davis T.Willson, 65 UK, 528; Sample 577; Kanouse v. Lexington, 12 IlL
V. Bradwell, 87 111., 618; Robinson App., 818.
T. Spearman, 8 B. & C, 498 ; Martin * Danforth v. Classen, 21 HI. App.^
y. Marshall, Hobart, 63; Parker v. 572.
Proctor, 2 Wils., 886; Brings v.
FALSE IMPBISONHBirr. 81
kill the felon if he cannot otherwise be taken." ^ In all other
cases, however, the authorities are uniform; a constable or
policeman has no authority to make an arrest without a war-
rant.* The powers of these officers are in nearly if not all of
the states of our Union regulated by statute, and while not
materially changing the rule of the common law, as a matter
of caution it will be advisable to examine the provisions of
the statute before giving advice upon the law.
§ 26. Special patrolmen^ officers appointed for special
duty in 8tores> hotels^ etc — Liability of the person who pays
the salary. — This class of officers are appointed under stat-
utory enactments usually providing that they shall be subject
to the orders of the superintendent of police, obey the rules
and regulations, general and special, of the police board, con-
form to its discipline, and wear its dress or emblems, but their
salaries are to be paid by the person benefited in particular
by their services. These statutory enactments usually pro-
vide that the patrolmen shall be subject to removal by the
police board without cause assigned, and when appointed
shall possess all the powers and discharge all the duties of the
general police force applicable to regular patrolmen. Under
these statutes it is held that these special patrolmen possess all
the common-law and statutory powers of constables except for
the service of civil process. In all other respects they are as
much members of the general police force as any patrolman.
It is the interest and purpose of these laws to invest special
patrolmen with all the rights, powers, privileges and immuni-
ties of the regular policemen. It has been hold that the re-
lation of master and servant does not exist between the special
patrolman and the person who paj^s his salary. The statutory
provision that the person particularly benefited shall pay the
salary does not render nugatory the other provisions and de-
prive the policeman of the broad authority expressly dele-
gated. He is not, in other words, the mere servant of the
U Black. Com., 292; Shanley v. v. Becker, 8 Ind., 475; Cook v.
WeUa. 71111., 78(1878). Nethercole, 6 Carr. & P., 741;
* 1 Russell on. Crimes, 600; 2 Haw- Cloupey ▼. Henly, 2 Esp., 540; Fox
kins' Pleas of the Crown, 81 ; Shan- v. Gaunt. 8 B. & A., 7U8; Com. v.
ley V. Wells, 71 111., 82 (1878); Com. McLaughlin, 12 Cush., 615 (1858).
▼. Carey, 12 Cush., 24B (1853); Pow
6
82 FAL8B DCPBISONMENT*
person who pays him, and the person is no more responsible
for his acts than he woald be for the aots of the regular patrol-
man under like circumstances.^
§ 27. Depot marshals, etc.^ not eonseryators of the peace
at common law —Where they possess anthorlty of constables
at common law. — By the common law, so far as we are advised,
such officers as depot marshals or policemen were unknown
as conservators of the peace. But where officers, though un-
known as such to the common law, are expressly authorized
b}' statute, or by a municipal ordinance duly enacted, to con-
serve the peace, they have all the common-law authority of
constables or peace officers, and may apprehend and take into
custody those who violate the laws or ordinances of a city in
their province without warrant.' To hold that officers charged
with preserving the peace of a city, and who are especiall}*^
commanded to arrest those who violate its ordinances within
their view or cognizance, are, nevertheless, without power to
that end without a formal warrant, and that one whose per-
sonal rights are being defiantly invaded in violation of an
ordinance may not invoke the aid of a peace officer who is
near by, would effectually tie the hands of the officers and
compel others either to submit to the turbulent and lawless
or maintain their rights as best they may.*
§ 28. Private persons appointed by magistrate — Minors.
There can be no doubt that a minor, not being an elector, is
ineligible to the office of constable, because he would be in-
competent to execute the bond required of such an officer;
but whether a person specially appointed by a trial justice
to execute a particular warrant is rendered incompetent by
minority to do so, is another question. Such a person is not
an officer in the oommon acceptation of the term. He is not
required to give a bond or to do any other act which it is in-
competent for a minor to do. EEe is simply a private individ-
ual, appointed pro hoc vice to perform the duty of a con-
1 Henhey v. O'NeiU, 86 Fed. Rep., ville v. State, 16 Tez. App., 70; State
170 (1888). ▼. Holcomb, 86 Mo., 871 ; 7 Amer. &
< Veneman v. Jones, 118 iDd., 41; Eng. Cyclop. Law, 676, 676.
20 N. E. Rep., 644 (1880); Wiltse v. * Veneman v. Jones, 118 Ind., 41;
Hol^ 09 Ind., 469, and cases cited; 20 N. E. Rep., 644 (1881^
State V. E^eeman, 86 N. C, 688; Be*
FAL8B IMPBISONMBNT. 83
stable; and we see no more reason why a minor of suitable
age and discretion may not have suoh authority delegated to
him by a trial justice than that a sheriff could not call upon
such a minor to act as one of the posse oomitatus; and surely it
would not be contended that the sheriff, In summoning his
possej must be careful to see that each person so summoned
had attained his majority.^
§ 29. Arrests by prlyate persons on ylew and on Informa-
tion.—
(1) On view. — Every person who is present when a felony
is committed is bound by law to arrest the felon, on pain of
fine and imprisonment if he escape through his negligence.^
And in suoh cases an arrest without a warrant may be justi-
fied whether there is time to obtain one or not.' After an
indictment is found against a party any private person may
arrest him, for he does not act upon his own suspicion but
npon the finding of the fact by the grand jury upon oath,
which is suspicion grounded upon high authority and is a
charge against the offender on record.^ A private person,
however, is not justified in arresting without warrant or giv-
ing in charge of an officer a party who has been engaged in
an affray, unless the affray is still continuing or there is rea-
sonable ground to believe that the party intends to renew it.^
In order to prevent the commission of a crime any person may
lawfully lay hold of a lunatic who is about to commit any
mischief, which, if committed by a sane person, would consti-
tute a criminal offense. And he may do the same to any
other person whom he shall see on the point of committing a
felony, or doing any act which will manifestly endanger the
life or person of another, and may detain him until it may
reasonably be presumed he has changed his purpose. But
where he interferes to prevent others from fighting, he should
first give express notice of his intention to prevent the breach
1 McConneH v. Kennedy, 29 a C, * Barbour's Crim. Law, 5ff0; Dalt
180; 7 8. R Rep., 76(1888). Ch., 170, § 6; 1 Hawk. P. C, eh.
^Barbour's Crim. Law, M9; 2 28, § 12; 1 East, P. C, 801.
Hawkins, P. C, 74. >Price ▼. Seely, 10 aark & Hn.,
»Honey T. Mix, 8 Wend. (N. Y.\ 28.
850 (1829); Phillips v. TmU, 11
Johns. (N. T.)> 486 (1814X
84 FALSE IMPBISONMENT.
of the peace (command them to desist). It is every man's
duty to interfere for the preservation of the peace and to arm
himself for that purpose.'
(3) On information, suspicion, etc. — There are cases in
which, though the law does not enjoin an arrest, yet it per-
mits it. Thus, upon probable suspicion, a private person may,
if a felony has actually been committed by some person, ar-
rest, or direct a peace oflBcer to arrest, the party whom he
supposes to be guilty.* And if it can be proved that a felony
had been committed by some person, and there existed a rea-
sonable and probable ground for suspicion, he will not be liable
to an action for false imprisonment though it be shown that
the party arrested and imprisoned was in fact innocent.' It
seems clear from the authorities that a private person, in jus-
tifying the imprisonment without warrant of an innocent per-
son, must state in his pleadings and prove in evidence that a
felony was committed by some one, as well as that, under all
the circumstances, there were reasonable grounds for suspect-
ing the person arrested, or he will be liable to respond in
damages.*
The law illustrated. —
Arrest upon view by a private person — Merchanfs liability for acts of
derk.
Two sides of the story, — The plaintiff, a resident of Philadelphia, came
to the store of the defendant, on Sixth avenue* New York, in company
with a female friend. She had never been there before, and was a total
stranger to the defendant and his employees. Her version of the subse-
quent occurrences is as follows : She says she went to the umberella counter,
took up an umbrella, and, to enable her to examine more closely the
quality of the silk, carried it a short distance to the light near the door.
While she was adjusting her eye-glasses for this purpose, she wa8 roughly
seized by the ai*m by a salesman of the defendant, and pushed through the
store, and into the basement. After an examination there,, in the presence
of a policeman and two or three of the defendant's employees, she was
arrested, and taken to the station-house, and, after being examined by the
officer in charge, she was locked up for two or three hours, until bail was
I Barbour's Crim. Law, 551; Fos- Doug., 859; 1 Hale, P, G., 688; 9
ter's P. C, 810; 1 Chitty's Criin. Law, Bacon's Abr., Trespass, D. 8.
18; 2 Hawkins, P. C, ch. 12, § 19. » 4 Taunt., 34; 6 Price, 625.
2 Barbour, Crim. Law, 650; 1 ^Barbour's Crim. Law, 551; 2 Inst,
Chitty, C. L., 16, 16; Cald., 291; 62; 2 Hawk. P. C, ch. 12, gg 8-19;
4 Taunt, 84; 6 T. B., 81&
FALSE IMPRISONMENT. 85
given by a friend. She was subsequently tried at a court of special
sessions and acquitted. This is, in brief, the testimony of the plaintiff. It
is uncorroborated, except in a few unimportant details.
On fheother hand^ the defendant proved that the umbrella counter was
between forty and fifty feet from the door in question, and that it was in
the ]i(2:htest part of the store. Several witnesses testified that the plaintiff
took the umbrella, walked with it through the store out upon the side-
walk, and was proceeding down Sixth avenue, having in the meantime
pulled off the tag, when the salesman, who was a private person, not an
officer, followed her, touched her politely on the shoulder, and requested
her to return into the store. No physical restraint was used, and the two
walked quietly through the store to the ladies* lunch«room in the basement.
The special police officer stationed on the premises was then summoned,
and the plaintiff, having in substance admitted her guilt, was taken to the
police station. She was there examined by the captain of police in charge,
and again confessed the larceny. Thereupon she was locked up until bail
was furnished, some two or three hours afterwards. The following mom*
ing she appeared in court, and was hel^ for trial. She then brought an
action for false imprisonment against the merchant in whose employ the
salesman was. Upon these facts the jury found a verdict for the defend-
ant. The plaintiff now moves for a new trial.
Coxe, J. : The plaintiff was a total stranger to all in the store. Neces-
sarily she was judged, not by what she was, but by what she seemed to be.
It was a most natural inference from her conduct that she intended to take
the defendant's property. The testimony is overwhelming that she took
the umbrella without asking permission, and with no word of explanation
carried it forty feet through the store, and was actually walking with it
down Sixth avenue when she was requested to return. It would seem that
a clerk who hesitated to protect his employer's property in such circum-
stances would be most derelict in his duty. The plaintiff's conduct, to state
it mildly, was exceedingly suspicious, and for the unfortunate occurrences
which followed she has herself alone to thank. It would seem that no im-
partial person can read this record and reach a conclusion different from
that reached by the jury. The motion is denied. Hershey v. O'Neill, 36
Fed. Rep., 171 (1888).
§ 30. Assisting officers in the exeention of process^ etc.—
Every private person is in general bound to assist an officer of
the law in the execution of process when called upon to do so;
and if he refuses to obey the call he is liable to be punjslied.^
A person who responds to the call of one whom he knows to be
an officer of the law is protected by the call, especially in crim-
inal cases. The officer may be acting without authority and
maybe a trespasser, but the person assisting him at his com-
mand, who relies upon his official character and call, is pro-
iHawk.P.a,ch. 12, §1; Id., ch. P. C, 587: Bum's Justice, Ai rest, 111;
13, §^ 7, 8 ; 4 Black. Ck>m. , 292 ; 1 Hale, 1 East, P. C. , 298.
86 FALSE IMPBI80NMENT.
tected, against suit for false imprisonment.^ But io seems, at
common law, in civil cases, the sheriff having no authority to
call for such aid when there is no breach of the peace or other
criminal offense, where he is acting without legal authority,
private persons who respond to his call must do so at their
periL They are not protected unless the sheriff can justify.^
§31. Duty of a private person making an arrest. — When a
private person has apprehended another for a felony, he may
deliver him into the hands of a constable or he may carry him
to any jail of the county,' though this is rarely done.* The
better course seems to be to cause him, as soon as convenience
will permit, to be brought before a magistrate to be examined,
admitted to bail or committed to prison.* When a private per-
son has apprehended another in the heat of an affray, he may
lawfully detain him till the beat is over and then deliver him
to a constable.*
§ 82. Arrest of fugitives from justice. — A fugitive from
justice is defined to be a person who has committed a crim-
inal offense against the laws of a state or territory and has
fled from justice and is found in another state or territory."
As such fugitive he may be arrested and lawfully detained
preparatory to his surrender, before a demand has been made
upon the governor of the state or territory in which he has
taken refuge, for his surrender.® But in order to accomplish
this, a complaint in writing and under oath must be made
before an examining court, stating in proper language the
commission of the criminal offense in the state or territory in
question, that the accused stands charged with the same, and
has fled from justice. In many of the states of our Union
1 Firestone v. Rioe, 71 Mich.. 877; »1 Hale, P. C, 689; Phillips v.
88 N. W. Rep., 886 (1888); McMahon TruU. 11 Johns. (N. Y.), 486.
V. Green, 84 Vt., 69 (1861); Reed v. « Barbour's CJrini. Law, 30; 1 Hale,
Rice, 2 J. J. Marsh., 44 (1829). P. C, 689; 2 Hawkins, P. C, ch. 13,
2 Archbold*8 Practice, 863; Elder § 7; Id., ch. 16, § 8.
V. Morrison, 10 Wend. (N. Y.), 128 ^7 Am. & Eng. Ency. of Law, 635.
(1883); Oy stead v. Shedd, 12 Mass. ^In re Fetter. 8 Zab. (N. J.), 811;
511 (1807); Barbour on Crim. Law, 67 Am. Dec., 882 (185?); People v.
550 ; 1 Rubs, on Crimes, 622, 625. Schenck, 2 Johns. (N. Y.), 479
»Chitty, Crim. Law, 20. (1807); Ex parte Culbeth, 49 Cal.,
4 Davis, Justice, 42. 436 (1876) ; Ez parte Romanes, 1
Utah, 28 (1876).
FALSE niPBISONMENT. 87
the arrest and detention of fugitives from justice is provided
for by law, and sncb laws have been declared to be constita-
tional.^
1 Ex parte Rosenblat, 61 Cal., 285 (Mass.), 686 (1848); Com. ▼. Hall, 75
(1870); Com. v. Tracej, 5 Met. Mass., 262 (1857).
CHAPTER III.
ACTION FOR FALSE IMPRISONMENT.
§ 1. The form of the action.
2. The common-law action of trespass.
8. Where the action lies.
(1) Immunity to judicial oflScers.
(2) Proceeding without jurisdiction of the subject-matter.
(8) Irregular proceedings.
(4) Abuse of process.
(5) Proceedings without process.
4. What is necessary to sustain the action.
Applications of the law.
(1) Party not responsible for process issued without direction or
sanction.
(2) Liability of justice, constable and prosecutor under void pro-
ceedings.
(3) An arrest upon probable cause.
§ L The form of the aetlon. — The aotion for false impris-
onment is the common-law action of trespass, or its substitute
in those states where the common-law forms are abolished.
It is a form of action which lies to recover dama^^es for the
injury sustained by a person, as the immediate consequence
of some wrong done forcibly to his person or property, against
the person committing the injury. It is the proper action for
injuries to the person, as by wounding, assault and battery,
false imprisonment, and the like.^ In those jurisdictions where
the different forms of actions are abolished, the law applicable
to the cause of action, the parties and the evidence is, as a
general rule, unchanged.
§ 2. The eommoii-law action of trespass. — The action of
trespass lies for injuries committed with force, and generally
only for such as are immediate. The force may be either
actual or implied. The intention of the wrong-doer is in gen-
iBeecher v. Parmele, 9 Vt., 852 (1858); Hally v. Carson, 89 Ala., 845
(1837); Andre v. Johnson, 6 Blackf. (1864); Castro v. De Uriarte, 13 Fed.
(Ind.), 875 (1848) ; Maher v. Ashmead, Rep. , 250 (1882) ; 1 Chitty, Pleadings,
80 Pa. St., 844; 72 Am. Dec., 708 182.
AOnOV VOB FAIflB lUPBISONMElST. 89
eral immaterial ia this action, and when the defendant has
been acquitted of a criminal offense involving a trespass he
may be sued in this action for the injury.^
§3. Where the action lies^ etc. — The application of the
action of trespass to injuries committed under color of legal
process may be considered under five heads:
(1) Immunity to judicial officers. — In general the action
cannot be supported for any act, however erroneous, if it be
expressly sanctioned by the judgment of a superior or court
of general jurisdiction or by an inferior magistrate acting
within the scope of his jurisdiction.^ If the judge of an in-
ferior court has jurisdiction over the subject-matter he is not
liable as a trespasser, however erroneous the conclusion at
which he arrives may be.' But when an inferior court is
guilty of an excess of jurisdiction the action may be supported
for anything done under such proceeding.^ In case of an
error by ministerial ofl9cers, this action may be sustained if
the injury complained of was committed with force and was
the immediate result of the act.*
(2) Pbooeedings without jurisdiction of the subject-mat-
TEB. — Where the court has no jurisdiction over the subject-
matter, trespass is the proper form of action against all the
parties for any act which independentl3' of the process would
be remedied by this action.* Justices- of the peace and other
inferior magistrates are liable in trespass, if, on their convict-
ing or making an order on a party under a statute, where the
conviction or order on the face of it does not show that any
offense has been committed, and discloses that they have
acted without jurisdiction, or if the conviction or order show
an excess of jurisdiction by them ; and in these cases trespass
lies against the magistrates for any imprisonment upon the
conviction or order, although the conviction or order has not
been quashed, and this is an imputation of malice. A magis-
U Chitty on Pleading, 166; d « Blood v. Say re, 17 Vt. 6090843);
Campb., 465; SEaflt, 593; 1 Campb., Case v. Shepard, 2 Johns. Cas.
497 ; Heker v. Jarret, 8 Binn. (Pa.), (N. Y.), 27 (1800) ; Putnam v. Man,
404(1811). 8 Wend., 202 (1829); Bigelow v.
3 Henderson v. Brown, 1 Caines* Stearns, 19 Johns. (N. T.), 39(1821);
Eep. (N. Y.), 92 (1804). 1 Chitty's Pleadings, 182.
» 1 Chitty's Pleading, 181. « 1 Chitty's Pleadings, 182.
* 1 Cbitty's Pleadings, 162.
90 AOTION FOB FALSE IMPfilSONMENT.
trate is a trespasser if the warrant of commitment does not
show an offense over which he has jurisdiction, although there
may have been a previous regular conviction which is still in
force.^ He is liable if the warrant of commitment substan-
tially vary from the conviction, so that the offense stated in
the former and that described in the latter are in law wholly
different in their nature, for in such case the commitment has
no conviction to support it;^ or where he maliciously grants a
warrant against another and causes his arrest without any
information upon any supposed charge or felony ; * or where he
commits a party charged with felony for re-examination for
unreasonable time but without any improper motives.'
(3) Ibbegulab pbocebdinqs. — Where a court has jurisdiction
but the proceeding is irregular, trespass against the attorney
and plaintiff is, in general, the proper form of action; and
where a judgment has been set aside for irregularity this is
the appropriate remedy for any act done under it.*
(4) Abuse of pbooess. — Where the process of any court
has been abused, trespass against the sheriff or other ministe-
rial officer committing the same is the proper action if the
conduct of the officer was in the first instance illegal, and an
immediate injury to the person of the plaintiff. And, although
the conduct of the officer was in the first instance lawful, yet,
if he abuses his authority and commits some act of trespass
not warranted by ihe process, as detaining a party on a capias
ad satisfaciendum after he tenders the debt and costs, he be-
comes a trespasser ah initio?
(5) Pbooeedings without pbocess. — When a ministerial offi-
cer proceeds without warrant to arrest a person on the in-
formation of another, trespass is the proper form of action
against the informer if it turns out that no offense for which
' an arrest without a warrant is justifiable had been committed
U Chitty*8 Pleading, 183. B. (Pa.), 188; 1 Chitty's Pleading,
2 Rogers v. Jones, 8 B. & C, 409 184.
(1824); Massey v. Johnson, 12 East, <iMeIvine v. Brown, 15 Mass., 82
67(1810); 1 Chitty's Pleading, 183. (1818); Douglas v. The State, 6
» 1 Chitty's Pleading, 183. Yerg., 525 (1884) ; Ratcliffe v. Burton,
< Davis V. Caffer, 10 B. & C, 28 3 B. & P., 223; Steadman v. Crane,
(1829); 1 Chitty's Pleading, 183. 11 Met. (Mass.), 295 (1846); 1 Chitty,
^Milliken v. Brown, 10 Serg. & Pleading, 185.
AOnON FOB FALSE IMPBISOKMENT. 91
by any person.^ And trespass is the remedy against the in-
former if there was no warrant, although it appears that some
person had committed the offense, and it is one for which an
arrest might legally be made without a warrant, provided
there was not reasonable or probable cause for charging the
person with having committed the offense. Where an officer
proceeds without warrant and without foundation, upon his
own apprehension, trespass is the proper form of action against
him.'
§ 4. What is necessary to sustain the cliarge. — In order
to sustain a charge for false imprisonment it is not necessary
for the plaintiff to show that the defendant used violence, or
laid hands upon him, or shut him up in any jail or prison; but
it is sufficient to show that the defendant at some time or
place in some manner restrained the plaintiff of his liberty,
or detained him in any manner from going where he wished
or prevented him from doing as he desired.'
Application of the law. —
(1) Miatdke of the justice — A party not reaporunble for issue of process in
justice court witJwut his direction or Unction,
In an action of trespass for false imprison ment» Trask, the defendant,
April 11, 1826, recovered judgment of $37.50 against the plaintiff, Taylor,
a freeholder and a man of family, before a justice, and immediately made
the oath required by the third proviso to the fourteenth section of the
Fifty-dollar Act (Sess. 47, ch. 888, p. 287, Laws of New York), that he
would be in danger of losing his debt if execution was not immediately
issued. The justice (who was a witness upon the trial) stated that he in-
formed Trask that he then had no blank executions with him, but would
issue an execution the next morning. That he, accordingly, the next day
issued an execution, directing the constable to levy the damages and costs
of the goods and chattels of Taylor ; and for the want thereof to commit
his body to jaiL That he made use of an old blank, and, by mistake,
omitted to strike out that part of the execution which directed the body
of the defendant to be taken. That Trnsk gave no direction as to what
kind of execution was to be issued, but simply made the oath required
by the statutes and directed the witness to issue an execution. The wit-
ness delivered the execution to the constable, and Trask did not see it
before it was delivered to the constable, nor until Taylor was arrested.
U Chitty, Pleading, 186; Hedges velt v. Burwell, 1 Salk., 896; Lord
V. Chapman, 2 Bing., 528 (1825); Raymond, 454; 1 Chitty, Grim. Law,
Flewster v. Boyle, 1 Campb., 187 21. 22.
(1808). ' Hawk et aL v. Ridgway, 88 ill.,
n Chitty, Pleading, 185; Groen- 478(1864).
92 AOTION FOB FALSE IMPItlSONKENT.
Taylor was discharged as soon as the mistake was discovered and by the
order of Trask as soon as he learned the arrest That was before Taylor
was committed to prison.
The jury, by the direction of the judge and with the assent of the par-
ties, found a verdict for the plaintiff for nominal damages, subject to the
opinion of this court.
Sutherland, J. : Here the duty of the justice is clearly and explicitly
pointed out. He is expressly prohibited from issuing an execution against
the body of a defendant in the cases enumerated in the provisa He had
no jurisdiction to award the process which was issued in this case. It was
not dethanded from him by the defendant. He made the oath required by
law and requested an execution ; that is, such execution as the law entitled
him to, with respect to which there was no doubt or uncertainty. The
Case, therefore, stands precisely as it would have done if the defendant
had in terms requested the justice to issue an execution against the goods
and chattels of Taylor only. In such a case, I apprehend, the party would
not be responsible for the accidental or uniatentional error of the magis-
trate. Judgment for the defendant. Taylor v. Trask, 7 CJow., 247 (1827),
cited in 24 Am. Dec, 48; 5 Duer, 124; 19 Am. Dec., 484; 1 Wend., 216;
5 Wend., 248, 299 ; 8 Wend., 467, 681 ; 10 Wend., 868 ; 16 Wend., 46 ; 5 Barb.,
468; 1 Denio. 595; 5 Lans., 107.
(2) Liability of prosecutor, Justioe and oonatable — Void proceedings,
William E. Gk>ddard went before the defendant, Jerome B. Forbes, a
justice of the peace, and charged Samuel D. Hicks with the crime of being
a fugitive from justice, by a written complaint upon oath. The justice
issued a warrant for the arrest of Hicks, and placed it in the hands of Rob-
ert Mason, a constable. Mason arrested Hicks, and brought him before
the justice. A trial was had, the justice found Hicks guilty in manner and
form as charged in said complaint, and ordered him to be detained by the said
constable for the period of ten days, unless sooner discharged or removed
by operation of law, and issued a mittimus to said Robert Mason to that
effect. Hicks continued in the custody of Mason until he was discharged
by habeas corpus proceedings. For this imprisonment Hicks sued God-
dard, Forbes and Mason.
Upon the trial Hicks took the stand, and testified that he was the plaint-
iff in the case ; that he resided at Republican City ; that he was in the cus-
tody of Robert Mason for nine days; that Mason told him that if he would
conclude to stay with him, and not try to get away, he might stay with
him, and he would not put him in jail; that he was before Forbes and
Forbes turned him over to Mason ; that he had to employ an attorney, and
paid him $50; that he lost nine days while in custody ; that he had to hire
his brother to go and see an attorney, for which he paid him $3; and that
Mason kept control of him all the time. To the question, *'What was
your time worth while you were in custody?" he answered, ** Well, more
than usual, as I wanted to go to seeding, and my wife was sick, and I
ought to have been right there with her."
Copy of the docket entries.^'* The State of Nebraska v. R. B. Hicks,
February 28, 1887. Complaint in writing and on oath made and filed be*
A.OTIOK FOR FALSE IMFBISONMENT. 93
fore me, by W. E. Qoddard, charging one Samael D. Hicks, late of Phil-
lips county, Kansas, and now within the county of Harlan, Nebraska, as a
fugitive from justice; that said Samuel D. Hicks is charged with, on the
80th day of January, 1887, in the county of Phillips, and state of Kansas,
after having mortgaged one span of mules, one black and one bay horse
with a black stripe across the shoulders, eight or nine years old, and bay
mare mule nine or ten years old, one Standard corn^planter, one Standard
corn-plow, one Mast sulky-plow, one double harness, one three-section
sixty-tooth drag, W. E. Ooddard being the owner thereof, fraudulently
removing and concealing the said mortgaged property with the fraudulent
intent to place the same beyond the control of the said W. E. Goddard :
now to issue warrant, and deliver same to Robert Mason, constable. War-
rant returned, and indorsed as follows: ' Received this warrant on the 28th
day of February, 1887, and according to the command thereof I arrested the
within-named S. D. Hicks, and now have his body before this court. ROB-
KBT Mason, Constable^' Defendant arraigned, and pleaded not guilty;
where, upon examination, after hearing the evidence, I find the defend-
ant guilty in manner and form as charged in said complaint, and ordered
the said Samuel D. Hicks to be detained by the said Robert Mason for the
period of ten days, unless sooner discharged or removed by operation of
the process of law. Issued mittimua to Robert Mason therefor. J. D.
FoRBKS, Justice of the Peace."
There was a trial to a jury, with findings for the plaintiff, and a verdict
for $360 damages. The defendant's motion for a new trial was overruled,
in case the plaintiff should remit $150 of the amount of the verdict ; and
the plaintiff having remitted that sum, judgment was entered for $200
damages and costs. Exceptions having been taken, the defendant then
took the case to the supreme court by a writ of error.
In delivering the opinion of the court affirming the decision of the oourt
below, Cobb, J., said: **The law of this case arising upon the principal
question presented is sufficiently stated in the opinion in the case of Smith
V. State, 21 Neb., 652; 32 N. W. Rep., 694. By reference to the copy of the
complaint made by Goddnrd against Hicks, as taken from the docket of
the defendant Forbes, it will be seen that the only allegation against Hicks,
in addition to the general one that he is a fugitive from justice, is that he
' is charged with on the 80th day of January, 1887, in the county of Phil-
lips and state of Kansas, after having mortgaged one span of mules, fraud-
ulently removing and concealing,* etc. It is not stated that this charge
has been made upon oath, or that it was made to any court or authority,
or that such charge was then pending against the said accused. For aught
that is stated, said charge mi^ht have been a mere idle, non-judicial ac*
cnsation, made through the newspapers or at the hustings, or, if ever made
judicially, he may have been acquitted of it. For these reasons, upon the
authority of the case above cited, and which opinion is amply sustained
by cases cited from the courts of other states and of the United States, the
warrant issued by the defendant Forbes, by the procuration of the defend-
ant Gkxldard, and upon which the defendant Mason arrested and impris-
oned the plaintiff, was simply void. It follows, therefore, that it could
afford no protection to the defendants for the imprisonment of the plaint-
iff. Forbes et al v. Hicks, 27 Neb., Ill ; 42 N, W. Rep., 808 (1880).
94 ACnOH VOB FALBB DfPBiaQHMEarT.
(jB) Am amtt t^om pnlbdblB ccnusm
Miles Olmstead fanmgfat an action against Aaa Dolan for false impriaon-
ment. On tiie trial il appeared from the evidence that the plaintiff and
another man went to the 11 very stable ot the defendant to hire a horse and
wagon. It was about 8 o'clock in the morning. The men waked np the
boy in charge of the stable, and Olmstead got of him a horse and wagon
on the statement tliat be would be back bj 9 or 10 o'clock on thatdaj. He
farther stated that he was a r^nlar costomer at defendant's stables and
had hired baggies' there before. Bat this was not true. He had never
hired horses at the stable before, and he did not give his name. The boj
let him have the property solely on this false statement. The horse and
wagon did not retarn as promised, and on Wednesday Dolan made a com*
plaint. When taken before the justice Olmstead pleaded guilty to the
charge and paid $^, and the charge was withdrawn. The jury found for
the defendant and the plaintiff appealed.
Barnard, P. J., said: " The arrest was made under circumstances which
jpstified the inference that the plaintiff was attempting to escape after he
had notice that the constable had a warrant for his arrest Whether or not
the charge would have held good upon a trial is of no importance. The facts
proTen justified the arrest." Thaule ▼. Krekeler, 81 N. T., 428. The re-
lease of the plaintiff with the property on the evening of Wednesday is a
fact of no importance, as the warrant was then in the hands of the officer,
and the case must be determined by the facts as they existed when the
warrant was issued. The plaintiff's conduct subsequent to the retarn is
not free from unfavorable inferences. The judgment should be affirmed.
Olmstead v. Dolan, 6 N. T. Sup., 180 (1889).
CHAPTER IV.
LIABILITY FOB FALSE IMFRISONliENT.
§ !• Matters disctissed in this chapter.
3. A general rule of liability.
Applications of the rule.
(1) Corporations liable for the acts of its agents.
(2) Ordering ofBcers to refuse baiL
(8) Procuring a writ of ne exeat to issue on insufficient affidavit.
8L Liability by ratification.
i. Ratification may be expressed or implied.
Applications of the rule.
(1) A ratification held not sufficient.
(2) Person employing an officer for a lawful purpose not liable
for his wrong doing.
0. Liability of infants — The general rule.
0. Ratification — Trespasser ah initio.
Applications of the rule.
Trespasser ah initio — Ratification.
7. No liability in employing an officer to perform a lawful act
8. The law stated by Campbell, C. J.
0. In what cases the liability exists,
10. Liability of parents and persons in foooparenfiff.
' Applications of the law.
Excess of punishment — Questions for a jury.
11. Guardian and ward. **
12. Master and apprentice.
18. Teacher and pupiL
18a. The law stated by Stuart, J.
Applications of the law.
The criminal action — Extent of power, eta
14. Other similar relations.
Applications of the law.
Liability of the captain and mate of a vessel for acts of disci-
pline on the high seas.
15. Liability of keepers of charitable institutions — Superintendents of
asylums for the insane, etc.
10. Liability of superintendants of asylums for the insane ^ Not acting
under legal adjudications.
17. The superintendent as a judicial officer.
Applications of the law.
(1) Keepers of charitable institutions.
(2) Unauthorized detention of a harmless lunatia
96 LIABILITY FOB FALSE IMPRISONMENT.
§ 18. Legal adjudications Dot necessary in every instance.
19. A public investigation not always necessary.
20. Further discussion of the subject.
21. Effect of a judicial inquiry.
Applications of the law.
Confinement in an asylum for the insane without judicial an*
. tbority.
22. Liability of persons apprehending a lunatic without legal pro-
cess.
28. The right to apprehend and confine insane persons under legal ad-
judications.
24 Restraint of insane persons — The law stated by Ckx>ley.
25. Persons confined as lunatics — Remedy by habeas corpus.
26. The remedy confined to certain cases.
27. Judicial officers — The term defined.
28. The rule of liability of judicial officera
29. Judges of superior courts, liable when.
80. Excess of jurisdiction snd want of jurisdiction distinguished.
Applications of the law.
Judges of superior courts, illegal sentence, imprisonment there-
under, etc.
81. Judges of inferior courts, liable when.
82. The law stated by Bigelow, J.
88. Judicial officers not liable for acts not in excess of their jurisdic-
tion.
84. The law stated by Ck}oley approved by Stallcup, CX Jt
85. Discussion of the subject.
86. Reasons for the rule.
87. The law stated by Shaw, C.
88. The officer must act in his official capacity.
Applications of the law.
A ni»yor as peace officer, not liable for ordering an arrest
89. The officer must act within his jurisdiction.
40. Immunity from liability not affected by improper motives.
41. Reasons for the rule— Stated by Field, J.
42. Jurisdiction — The term defined.
48. What jurisdiction is essential to immunity.
44. Jurisdiction must be legally acquii'ed.
45. Distinction between superior and inferior courts— Acting within
their jurisdiction.
46. The rule applies to all judicial officers.
47. The doctrine stated by Chief Baron Kelly.
48. Juried iction , w hen presumed and when not — Superior and inferior
courts.
49. Superior courts — Jurisdiction, when (Mresumed*
50. What is a superior court.
51. Inferior courts — Jurisdiction never presumed.
52. What is an inferior court.
58. The law stated by Mr. Justice Field.
LIABILnr FOB FALSB IMPEI80NMENT. 97
§ 54. Inferior courts — Justices of the peace — Jurisdiction never pre-
sumed.
65. Judf^es of inferior courts — When not liable for acting without
jurisdiction.
60. The common law affords to all inferior courts complete protec-
tion.
An illustration.
Sufficiency of the complaint and warrant
67. Liability of judges of inferior courts in cases of doubtful jurisdic-
tion.
58. Reasons for the rule.
,69. The better rule — Beapley, C. J.
An application of the better rule.
Complaint failing to show where the offense was committed.
60. Liability when jurisdiction is assumed through mistake of fact.
Application of the law.
(1) A justice exceeds his jurisdiction knowing the facts.
(2) Liability, complaint showing the statute of limitations had
run against the offense.
61. Judges of inferior courts acting under void and unconstitutional
statutes.
Applications of the law.
A contrary doctrine.
62. Liability of judicial officers acting ministerially.
Applications of the law.
(1) Liability of justice acting ministerially — Agent for plaint-
iff.
(2) Justice acting in good faith not liable for ministerial acts.
68. Liability — Justice of the peace acting ministerially.
64. Ministerial acts — Corrupt motives.
Applications of the law.
(1) A party not liable for the acts of the justice. 4
(2) Issuing mittimus after suffering the defendant to go at
large for a year.
66. Liability of a justice of the peace in issuing process without au-
thority of party in interest
Applications of the law.
Service of process by unauthorized persons void — Liability of
justice for proceeding under such service.
66. Liability of a justice of the peace acting judicially.
67. Liability for the abuse of legal process. ^
Applications of the law.
(1) Liability of justice for abuse of process.
(2) Use of criminal process to enforce the settlement of a debt
68. Liability of Quast-judicial officers.
An illustration of the rule.
Qicam-judicial tribunals — Overseers of the poor.
69. Arrests by officers: (1) With process; (2) Without process.
70. The officer protected by process regular on its face.
7
98 LIABILIT7 FOB FAL8B IMPmSONMENT.
g 71. What is process regular on its face.
78. Officer protected — The law stated by Bigelow, J.
Applications of the law.
An infant illegally arrested for debt — Regular process pro-
tects.
78k When process regular on its face does not protect the officer.
Applications of the law.
(1) Liability of officer under regular process.
(8) Process issued by a court having jurisdiction of the subject-
matter — Protects the officer.
74. An officer's authority is derived ffcom his writ
Applications of the law.
(1) Arrest of the right person by a wrong name.
(8) Imprisonment by a wrong name.
(8) Arrest of a person by a wrong name not sustained — When
it might be.
(4) The same subject further illustrated.
79^ Officar haTing process not reqmred to examine into extrinsic mat-
tera.
ApfUioatioiis of the law.
An officer protected by execution issued on a judgment ob-
tained by ftaud.
71 Arrests for felony, without warrant
Applications of the law.
(1) Irregular process — Liability of officer and complainant in
criminal cases— Abuse of process.
(8) Arrest of a harmless lunatic at a camp-meeting, etc
(8) Arr«et without warrant — Right to a speedy trial — Abuse
of power.
(4) Arrest of drunken rioters on view.
77« Detention by officers under dead, void or voidable process.
The law illustrated.
* (1) Irregular act of an officer — Dead process — Ratification.
(8) Arrest on body execution after satisfaction of the judg-
ment— Notice to officer.
(8) Execution against the body without judgment
(4) Fftlse imprisonment lies for an arrest under voidable pro-
7^ Abuse of process.
78« The law stated by Walker, J.
Applications of the law.
(1) Criminal liability for abuse of process.
(8) Taking the prisoner out of the jurisdiction.
(8) Object of the writ to extort money— No protection.
6(K Liability of executive officers for the acts of their deputies.
81 » Liability of sheriflfs for the acts of their deputies.
H8. The subject discassed.
88, The acts of the deputy for which the sheriff is liable must be done
coior€ officio*
LIABILITY FOR FAL8B IMPRISOKMENT. 99
t
% 84. Uabilitj of the sherifP to respond in exemplary damages for the
conduct of his deputy.
85. Private persons assisting officers in executing dvil process.
Application of the rule.
(1) Private persons called upon to assist a deputy-sheriff.
(2) The person responding to the call for assistanoe does so at
his peril.
86. Private persons assisting officers in the execution of criminal pro-
cess,
87. Private persons assisting officers in the execution of criminal pro-
cess— The rule of liability.
Applications of the law.
Liability of a person assisting in the execution of a search-
warrant illegal on its face.
88. Liability of persons who officiously, etc., assist officers in the exe-
cution of process.
89. Private persons — Arrests by without warrant.
90. Private persons appointed to execute process.
Applications of the law.
Void process* if regular on its face, protects a private person
appointed by the magistrate to serve it.
91. Detention \inder erroneous or void orders of court — Protection to
persons acting under them.
Applications of the law.
(1) Liability of persons acting under, etc., orders, etc.
(2) Imprisonment under order of court afterwards vacated.
(8) Detention under a rescinded order,
92. Prosecution in criminal cases — Liability.
Applications of the law.
(1) Prosecutor's conduct — Reckless, unreasonable and without
probable cause.
(2) Liability of prosecutor for illegal act of justice.
(8) Ratification by prosecutor of an illegal arrest in a criminal
case.
98. Prosecutor must act in good faith.
94. Prosecutor is not required to act from public motiveo.
Applications of the rule.
Prosecutor need not act from public motives.
99. Persons directing the execution of legal process.
Applications of the law.
(1) Liability of a person causing the arrest of another.
(2) Liability of person making complaint.
(8) Inciting an officer to make an arrest on a void writ.
(4) A case under the statutes of Massachusetts.
96. A person who merely directs the attention of an officer to a viola-
tion of the law not necessarily liable.
97. Client^s liability for the acts of his attorney.
Applications of the law.
(1) Capias ad satisfaciendum issued after satisfaction of judg^
ment
100 LIABILITY FOR FALSE IBCPBI80I7MENT.
(2) Liabilitj of attorney for acta of his derk — Clieot's liability.
(8) Liability of plaintiff in execution -^ Void writ.
(4) Ezecntion upon void judgment — Liability of attorney and
client — Procuring false return.
§ 98i Corporation — When liable, etc.
99. Municipal corporations -- The cardinal inquiry.
100. The subject continued.
Applications of the law.
(1) Municipality not liable'for assault, etc. — By police* etc.
(2) Town not liable for false imprisonment, eta — Ratification.
101. Liability for the torts of employees.
102. Liability for malicious prosecution and false imprisonment.
Applications of the rule.
(1) Liability of a railroad corporation for false imprisonment.
(2) Another illustration.
108. Partners, principals, agents, etc. — Liability for torts, eta
104. The law stated by Justice Craig.
Application of the law.
A partner held not to be liabla
106. Ratification.
106. Detention by keepers of prisons, jailers, eta
An application of the law.
Confinement in the penitentiary under Toid conviction — The
tcrt cannot be waived.
107. Detention by private persons.
Applications of the rule.
(1) Detention by cashier closing the bank.
(2) Not a case of self-defense,
108. Detention by officers of the army and navy.
§ 1. Hatters discnssed in this chapter. — In a former
chapter the elements which compose the wrong, commonly
denominated false imprisonment, have been fully discussed.
In this chapter the rules of law governing the liability of per-
sons connected with the wrong will be considered. It is per-
haps necessary to say that no general rule can be laid down
as to such liability. The different relations sustained by the
parties themselves to the transaction in question must, in each
case, determine the liability.
§ 2. A general rule of liability.— As a general rule of law,
a party is liable to respond in damages when he authorizes or
directs, assists or encourages an officer to do an unlawful act,
or to do a lawful act in an unlawful manner, or to abuse, ex-
ceed or disregard his duty or authority. For example, where
he authorizes or directs the service of void process, or the
LIABILITY FOB FALSE IMPRISONMENT. 101
arrest of a privileged person ; or where he procures the arrest
of a person without process, or counsels, causes, directs or par-
ticipates in the doing of any other act which the process or
authority of the oflBcer will not legally justify.*
The rule is well settled that whoever, whether it be a nat-
ural person or a corporation,* in person or by agent,' whether
personally present or not, directs, procures or participates in
the unlawful and unauthorized arrest and imprisonment of
another, is liable in damages to the party injured.*
Application of the bule. —
r
(1) Corporation liable for acts of its agents^
Michael Lynch purchased a ticket for a passage of the Metropolitan Ele-
vated Railway, and entered one of its cars; before reaching his destination
he lost the ticket, and when he attempted to pass through the gate from
the station platform, he was stopped by the gate-keeper and told that he
could not pass until he procured a ticket or paid his fare. He stated the
facts of his purchase of a ticket and its loss and insisted on passing out,
but was pushed back by the gate-keeper, who sent for a police officer
and ordered his arrest. He was arrested and taken to the police station,
where the gate-keeper made a complaint against him and he was locked up
for the night. In the morning he was examined before a magistrate, the
gate-keeper appearing against him, and was discharged. He brought an
action for false imprisonment against the railway company and recovered
a judgment from which an appeal was perfected. On the trial it appeared
that the defendant had given orders to its gate-k€>epers not to let passen-
gers pass out until they either paid their fare or showed their tickets.
In passing upon the appeal, Earl, J., held that the railway company
could legally have no regulation that a passenger, before leaving its prem-
1 Mechem on Public Officers, § 905 59 Am. Rep., 571 (18S7) ; Mechem on
(1890): Bonesteel v. Bonesteel, 28 Public Officers, ^ 906 (1890).
Wis., 245(1871); Gibbs V; Randlett, < Bright v. Patton, 5 Mackey
58 N. H., 407 (1878); Beveling v. (D. C), 534( ) ; Winslow v. Hath-
Sheldon, 83 lU., 890 (1876); Sny- away, 1 I^ick. (Mass.), 211 (1822);
dacker v. Brosse, 51 111., 857; 99 Am. Curry v. Pringle, 11 Johns. (N. Y.),
Dec., 551 (1869). 444 (1814); Stoye^ v. Lawrence, 8*
2 Lynch v. Railway Co., 90 N. Y. Day (Conn.), 1 (1807); Clifton v.
77; 43 Am. Rep., 141 (1882) ; Wheeler Grayson, 2 Stew. (Ala.), 412 (1830):
& W. Mfg. Co. V. Boyce, 36 Kans., MoGarrahan v. Laress, 15 R. L, 802
a50; 59 Am. Rep.. 571 (1887); Owsley ( ); Allison v. Rheam. 3 Serg. &
V. Mont. R.R. Co., 37 Ala., 560(1861); R. (Penn.), 139 (1817); Purson v.
Mechem on Public Officers, § 906 Gale, 8 Vt., 509(1836); Floyd v. State,
(1890). 12 Ark., 43; 54 Am. Deo., 250 (1^51);
'Harris v. Louisville, etc., R. R. Mechem on Public Officers, g 906
Co.. 35 Fed. Rep., 116; Wheeler & (1890).
W. Mfg. Co. V. Boyce, 36 Kans., 350;
102 UABIUTr FOB FAL8B IMPSISONMBNT.
ises or its cars, shoald produce a ticket or pay his fare, and if he did not he
should be detained and imprisoned until he did so ; that the detention of
Lynch was unlawful and the railway company was responsible for the acts
of its gate-keeper. The judgment was affirmed. Lynch v. Met. £1. R'y
Co., 90 N. Y., 77; 24 Hun, 506 (1882).
(2) Ordering an officer to refuse hail.
Randlett had Gibbs arrested. He was present at the time, and when
Gibbe offered bail he ordered the sheriff to refuse it. The sheriff did as
directed by Randlett, and in so doing committed the wrongful act com-
plained of. Gibbs sued Randlett for false imprisonment and recovered.
A motion for a new trial being under consideration, Bingham, J., held that
the defendant, being present at the arrest and offer of bail, and having or-
dered the sheriff to refuse it, became liable as a principal for the wrong-
ful act. If the defendant, knowing the bail tendered to be sufficient,
directed the officer to refuse it, and he, acting under the direction, refused
it, the defendant would be liable. The new trial was refused. Gibbs v.
Randlett, 58 N. H., 407 (1878). Citing Smith v. Hall, 2 Mod., 81; 6 Bac.
Abr., Tit. Sheriff, O., 180; Salomon v. Percival, 3 Cro., 196; Creswell v.
Hoghton, 6 T. R, 855; Milne v. Wood, 5 C. & P., 587; Russell v. Fobyan,
34N. H., 218.
(3) Person procuring a lorit of ne exeat to issue upon an insufficient affi-
davit, liable — Officer protected,
Belinda Bonesteel commenced an action upon a promissory note against
Jacob P. Bonesteel, and upon her affidavit, showing that he was about to
leave the state to reside permanently in the territory of Dakota, she ob-
tained a writ of ne exeat. The writ was duly delivered to the sheriff, who
proceeded to execute it by arresting the defendant, demanding that he
give the bond, and informing him that in default thereof he should put
him in jail. The bond was not given. The defendant was not committed
to prison, but was permitted to go at large upon the promise of himself
and others that he would not abscond. A few days after the writ was set
aside upon the ground that it was void, because the affidavit upon which
it was granted was wholly insufficient, and Bonesteel was discharged. He
then brought an action against Belinda Bonesteel and her husband for false
imprisonment. On the trial a judgment was rendered for the defendants,
and the plaintiff appealed. In passing upon the appeal, Lyon, J., held that
the writ of ne exedt was issued without a sufficient affidavit to support it,
and absolutely void (except only that, if regular on its face, it might pro-
tect an officer who executed it). That as Belinda Bonesteel sued out the
writ upon which the arrest was made, and by her attorneys delivered it to
the sheriff to be executed, she was liable as the one who set the machinery
of the court in motion, and directed its motions until it culminated in an
unlawful arrest upon void process. Judgment reversed. Bonesteel v.
Bonesteel, 28 Wis., 249 (1871). Citing Kerr v. Mount. 28 N. Y., 689;
Brown v. Chadsey, 89 Barb., 258; Vredenburgh v. Hendricks, 17 Barb.,
179; Baldwin v, Hamilton, 8 Wis., 747.
LIABILITY FOB FALSE IMPBISOKMBNT. 103
§ 3. Liability by ratification. — It is not alone where the
unlawful act of the oflScer was previously authorized or di-
rected by the party that he is liable ; he may become liable
where he ratifies or confirms the act after it has been com-
mitted. But it must appear that the party ratifying or con-
firming the act does so with a full knowledge of all the ma-
terial facts relating to the transaction, otherwise any alleged
ratification will be unavailing.^ The only exception to the
rule is* found in those cases in which the party intentionally
assumes the responsibility without inquirj%* or deliberately
ratifies or confirms the act, having all the knowledge in respect
to it which he cares to have.'
§ 4. Tlie ratification may be expres^d or implied.— The
evidence of a ratification must be clear and explicit and such
as indicates the intention of the party to adopt the act as his
own after a full knowledge of all the material facts in the
case. But an express ratification is not requisite in all cases;
it may be inferred in actions for false imprisonment and ma-
licious prosecutions, as in other cases, from such acts or omis-
sions as indicate the intention of the party to approve or ratify
the act in question.^
Application of the rulb. —
(1) A ratification held not sufficient.
Tucker brought an action against Jerris to recover damages for an
aUeged false arrest. He recovered a judgment for $125. Tucker was ar-
rested upon a writ sued out in the name of Jerris by one Chase, who sub-
scribed the requisite oath to cause the arrest, as agent for Jerris. The suit
was for the price of a hack which once belonged to the defendant, and was
left at the shop of Chase, who was a carriage- maker. Chase called on the
defendant to know what he would take for it, and defendant named the
price for which he would sell it. Shortly after. Chase, without other per-
1 Tucker v. Jerris, 75 Me., 184 <Mechem on Agency, §S 146-165
(1883); Adams v. Freeman* 9 Johns. (1889); Knight v. Nelson, 117 Mass ,
(N. Y.), 118 (1812); Hyde v. Cooper, 458 (1875): Beveridge v. Rawson, 51
26 Vt., 552 (1854) ; Lewis v. Reed, 18 111., 504 (1869); Crossman v. Olsen, 62
M. & W., 834. Me., 528 (1878); Root v. Chandler, 10
« Lewis V. Reed, 13 M. & W., 834 Wend. (N. Y.), 110; 25 Am. Dec, 546
(1846); Mechem on Public Officers, (1823); Lovejoy v. Murray, 8 Wall,
§907(1890). (U. S.), 1(1865).
•Kelly V. Newburyport H. R. R.
Co., 141 Mass., 496 (1885).
104 UABIUTY FOB FALSE IMPBISONMBNT.
mission from the defendant to sell, sold the hack with some harness of his
own to Tucker, the plaintifif, receiving of him $35 in part payment. Chase
told defendant that he bad sold the hack to a responsible party and paid him
a small part of the cash received. But the defendant never ratified the sale
to the plaintiff as made on his behalf, and before the commencement of
the suit in which plaintiff was arrested, he told Chase that he should look to
him for the pay for the hack. Chase went to an attorney to commence an
action in his own name against the plaintiff, but gave the attorney such a
version of the transaction that he advised that it should be commenced in
the name of Jerris, the defendant here, and original owner of the hack,
which was done. There was no evidence that Jerris ever employed an at-
torney or authorized Chase to em ploy one on his account, but the contrary.
Chase, as he testified, employed the attorney on his own responsibility, and
that he acted as agent for Jerris on the occasion, simply because he con-
sidered that under the advice of counsel he had a right to do sa There
was no evidence that th#defendant ever did anything touching the prose-
cution of that action, or knew that it had been commenced in his name,
until after the arrest. The plaintiff was therefore obliged to rely upon a
ratification by the defendant of the acts of Chase as his agent in order to
maintain the action.
In passing upon the exceptions of Jerris to the rendition of the judg-
ment, Barrows, J., said: *' To bind one to the performance of a contract
which another without authority has presumed to make for him, the ratifi-
cation must be made with a full knowledge of all the material facts. ' Igno-
rance or misapprehension of any of the essential circumstances relating to
the particular transaction alleged to have been ratified will absolve the
principal from all liability by reason of any supposed adoption of or assent
to the previously unauthorized acts of an agent' Coombs v. Scott, 13 Allen,
493. And this is so even though the ignorance or misapprehension arises
from the negligence and omission of the defendant to make any inquiry
relating to the subject-matter. Ibid, To hold one responsible for a tort
not committed by his orders, his adoption of and assent to the same must
at all events be clear and explicit and founded on a clear knowledge of the
tort oi»muiitted. Adams v. Freeman, 9 Johns. (N. Y.), 117; West v. Shock-
ley, 4 Earring., 287; Kreger v. Osborne, 7 Blackf., 74; Abbott v. Kimball,
19 Vt, 551. And this rule is not affected by the fact that the defendant
has received the money coming by means of the tort from his servant.
Hyde v. Cooper, 26 Vt., 552. The suit in this case was commenced in the
defendant's name, according to all the testimony, by Chase, for his own
benefit, and under the mistaken idea that he had a right to use the de-
fendant's name in the process; and there is nothing from which it can be
inferred that the defendant had any knowledge that Chase had committed
any wrong in making the affidavit to procure the arrest, even if we regard
the verdict of the jury as conclusive that he actually did. There is no
evidence that at the time of the alleged ratification defendant knew even
that plaintiff claimed that any wrong had been done. To hold the defend-
ant responsible for such wrong, if there was one, upon the evidence here
presented, the jury must have l>een governed by some unaccountable bias
or prejudice. They probably accepted the assertions of counsel in lieu of
LIABILITY FOB FAL8B IMPRISONMENT. 105
tefltimonj, and their verdict is clearly against law and evidence, and with-
out evidence to support it. It cannot stand." New trial granted. Tucker
V. Jerris, 76 Me., 184 (1888).
(3) Ratification— A party employing an officer for a lawful purpose not
liable for his wrong-doing.
Sutherland, the plaintiff, recovered a verdict below in trespass against
both defendants, and Ingalls brings eiTor. The trespass was for personal
violence, committed by Moriarity, who as an officer had a writ of posses-
sion to serve for a bouse occupied by plaintiff's husband and herself, which
was adjudged to be given up under the landlord and tenant act. Ingalls
had the writ placed in tlie hands of Moriarity to serve, and the latter,
meeting with opposition from plaintiff, seissed and handcuffed her, and
kept her so manacled for some time, while he put out the contents of the
house, and completed his service. The general issue was pleaded, with a
special plea setting up that what was done was in overcoming unlawful
resistance to Moriarity as an officer in service of process.
On the trial the court said to the jury that Ingalls was jointly and
equally liable with Moriarity for all that was done by Moriarity.
On the trial of the writ of error in the supreme court, Campbell, C. J., said :
•*We think this was erroneous. There was no proof of any violence
done by Ingalls himself, and none was alleged. He could only be made
out a trespasser by showing that he was responsible for the conduct of Mo-
riarity; and he could only be so responsible for what was fairly within the
authority, if any, which he gave him. A man who employs another inno-
cently, and for a lawful purpose, is not usually liable for his trespasses.
and is not liable for aggravated and wanton wrong-doing m such damages
as would be properly visited on him if himself sanctioning or doing it.
Neild V. Burton, 49 Mich., 53; S. C, 18 N. W. Rep., 906; Pigott v. Lilly, 55
Mich., 150; S. C, 20 N, W. Rep., 879; Wood v. Detroit City RV, 53 Mich.,
402: S. C. 18 N. W. Rep., 124.
*'No one can be held liable as a trespasser for employing an officer
to execute lawful process. It is the right of every one to have his regular
and valid writ served and enforced. The officers of the law are bound to
perform that duty, and cannot be blamed for doing it in a legal manner.
Evei*y one has a right to suppose the ministers of the law will not abuse
their functions, and no one who lawfully employs them is liable if they do.
Michels v. Stork, 44 Mich., 2; S. C, 6 N. W. Rep., 1034. It is only where the
party himself orders or encourages lawlessness that he can be treated as a
joint wrong-doer, and then he is liable because he is actually a trespasser,
and liable to the extent of his own misconduct. There is nothing in the
record which would justify putting Ingalls and Moriarity on the same
footing, and we have discovered nothing to show that he was in any way
whatever responsible as a trespasser.
** The result of the ruling which put the two defendants in the same
equal wrong was a heavy verdict, which may not have been excessive as
to Moriarity, but was not in any way sustainable as to Ingalls, and, as he
had taken out the writ on his own behalf, the judgment must be vacated
as to him, and a new trial granted." Sutherland v. Ingalls, 63 Mich., 630;
SON. W, Rep,. 843 (1886).
106 LIABILITT FOB FAL8B IMFBI60NMBNT.
§ 5. Liability of infants — The general rale.— An infant
is liable in a civil action for his torts, such as trespass, slander
and the like.^ The law governing infants is intended as a shield
only to protect them from improvident contracts, and not to
exempt them from liability for their wrongs, or enable them
to do injuries to others with impunity.* Hence infancy is no
defense to an action for damages for personal injuries, as an
assault and battery and the like, or for careless and negligent,
even though unintentional, injuries.' Infants are liable to
actions for personal injuries, assaults and the like, the same
as adults. When the injury complained of is not the result
of an unavoidable accident, the person bj^ whom it is inflicted
is liable to respond in damages to the sufferer; and the only
difference between an infant and an adult in such a case is,
that an injury might probably be considered as the result of
an unavoidable accident in the case of an infant which would
be otherwise in the case of an adult.^ An infant is liable in
an action of trespass for having procured another to commit
a personal injury, as an assault and battery and the like,
upon the principle that all persons aiding or abetting or
counseling and procuring a trespass to be committed are
principals whether present or not.* But Chitty in bis work on
Pleadings states the rule, upon the authority of Lord Coke, to
be, that ah infant cannot be a trespasser by prior or subse-
quent assent, but only bj'^ his own act.* And in Bacon's
Abridgment it is said that an infant cannot be guilty of a
forcible entry and detainer by barely commanding one, or
assenting to one to his use, because every such command or
assent by a person under such an incapacity as infancj' is void.^
^Conklin v.* Thompson, 29 Barb. Shaw v. Coffin, 58 Me., 254; 4 Am.
(N. Y.), 218 (1869) ; Field on Infancy, Rep., 290 (1870) ; Cooley on Torts, 98 ;
31 ; Reeve^s Domestic Relations, 258; Bing. on Infancy, 110; Hartford v.
Peigue V. Sutcliffe, 4 McCord {9. C), Roper, 21 Wend. (N. Y.), 615 ; 34 Am.
387; 17 Am. Dec, 756 (1827), Dec, 278 (1841).
2 Shaw V. Coffin, 58 Me.. 254; 4 Am. * Bullock v. Babcock, 8 Wend.
Rep., 290 (1870); 2 Kent's Com., 241 ; (N. Y.), 891 (1829); Tyler on Infancy,
Field on Infancy, 81. gtc, 185.
8 Peterson v. Haffner, 59Ind.. 130; *Sykes v. Johnson, 16 Mass., 889
26 Am. Rep., 81 (1877); Conway v. (1820).
Reed. 66 Mo., 346; 27 Am. Rep.. 354 6 1 Chitty's Pleadings (7th Am. ed.),
(1877); Eaton v. Hill, 50 N. H., 235; 86; Tyler on Infancy, 185.
9Am. Rep., 189 (1870); Ray v.Tubbs, 'Bacon^s Abridgment, Tit. In-
50 Vt, 688; 28 Am. Rep., 519(1878); fancy, H. ; Tyler on Infancy. 185.
LIABILITT FOB FAL8B IMFBIBONHENT. 107
§ 6. Batifieation — Trespasser ab initio.— There is no law,
nor is it justiqe, that a party who sues out and delivers to an
oflScer a valid process should be responsible for the irregularity
of the officer in executing the process, unless it appear affirm-
atively that the officer acted under the orders of the party in
making the arrest. A party who sues out a process from a
competent court is responsible only for the validity of the
process and for good faith in suing it out. He is not to an-
swer for the acts of the officer beyond the authority of the
precept unless he makes those acts his own. In order to hold
a party liable, by ratification, as a trespasser ah initio in cases
of mere personal tort, the assent must be clear and explicit and
founded on full knowledge of the previous trespass}
Application of the bule. —
Ratification — Trespasser ah initio.
Gold and SlU presented a note to a justice of the peace against BisseU for
collection. The justice issued a eunimons and delivered it to a constable,
who returned it served by copy, by leaving a copy at the defendant's resi-
dence. One year afterwards the justice in the same suit issued a warrant
without the oath required by statute, upon which Bissell was arrested.
The arrest was made by a constable calling upon Bissell and informing
him of the process he had against him. Bissell went with the constable
about half a mile, when he procured a person to engage that he would ap-
pear before the justice on the next day. He did appear, and Oold, being
notified of the fact, sent a student from liis office to attend the trial. Bis-
sau objected : (1) That, being a freeholder and having a family residing in
the county, process of warrant could not legally issue against him without
aa oath being made in conformity to the directions of the statute. (2) That
the issue and return of a summons served by copy in July, 1824, did not
authorize the issuing of a warrant in July, 1825, as a continuation of the
suit. The justice overruled the objections and rendered judgment for
Grold and Sill. Afterwards Bissell brought a suit against them for false
imprisonment. On the trial the question of the defendants* liability arose.
It was shown that the plaintiff was a freeholder at the time of issuing the
warrant and that it was issued without an oath. The justice could not
recollect whether or not Gold and Sill, < r either of them, had given him
explicit orders to issue the warrant. The trial court ruled, (1) the warrant
was irregularly issued; (2) the imprisonment was sufficiently proved;
(8) that Gold, by appearing, had made the trespass his own ; (4) the ques-
tion whether Sill was guilty or not was submitted to the jury. The ver-
dict was against both defendants. On appeal in the supreme court it was
^ Adams v. Freeman, 9 Johns, countess Montague, Cro. Eliz., 824
(N. Y.X 117 (1812); BisKop v. Vis- (1790;.
108 LIABILITY FOS FALSE IMPRISONMENT.
held that the warrant was Toid and the arrest illegal. Savage, C. J. : ** It
hecomes necessary thus to inquire whether the plaintiffs before the justice,
^he defendants here, sanctioned the conduct of the justice in issbing the
warrant. Mr. Gk>ld undoubtedly did. When he was notified by the con-
stable he sent his clerk to attend the triaL The objection was expressly
taken on the trial and opposed by Mr. Gold's agent : but there is no evi-
dence showing any direction by Mr. 8ill nor any approbation subsequently."
New trial granted unless plaintiff consents to amend by entering verdict
in favor of Mr. Sill. Gold et al. ads. Bissell, 1 Wend. (N. Y.), 210 (1828).
Cited in 4 Blatch. (U. S.), 476; 32 Am. D^c., 48; 22 Am. Dec.. 569; 21 Am.
Dec, 188; 11 Mich., 213; 40 N. J. L., 235; 106 Mass.. 504; 100 Mass., 85;
4 Leg. Obs., 225; Co. R.. N. S., 269; 17 Abb. Pr. (N. Y.), 247; 2 T. & C,
227; 3S Barb (N. Y.), 847; 4 N. Y., 256, 883; 23 Wend. (N. Y.), 468; 6
Wend. (N. Y.), 599.
■
§ 7. No liability in employing an oflBeer to perform a lawful
act. — Every person having lawful occasion to avail himself
of the services of a public ministerial oflScer authorized bylaw
to perform the desired act at the time and under the circum-
stances given may lawfully do so without incurring any
liability for the unlawful acts of the officer. It is the pre-
sumption of the law that the officer not only understands his
duty, but will perform it in the manner and with the precau-
tion which the law requires. No person can complain of the
lawful doing of that which the person doing or causing it to
be done had a legal right to do. Therefore, no liability can
attach to one who in a lawful manner merely sets a public
officer in motion to perform a lawful act within the scope of
his authorit}'. And if such officer, in the course of the per-
formance of the act required of him, commit a trespass or
do any unauthorized act, he alone must answer for it. His
employer, who neither authorized nor ratified it, cannot be
held liable.^
§ 8. The law stated by Campbell^ C. J. — No one can be
held liable as a trespasser for employing an officer to exe-
cute lawful process. It is the right of every one to have
his regular and valid writ served and enforced. The officers
of the law are bound to perform that duty, and cannot be
blamed for doing it in a legal manner. Every one has a
right to suppose the ministers of the law will not abuse their
^Sutherland v. Ingalls, 63 Midi., Wilson v. Tumman, 6 M. & G., 244;
620; 6 Am. St. Rep.. 332(1886); Me- Welch v. Cochrane, 63 N. Y., 181
oheni on Public Officers, § 904 (1890) ; (1875).
LtABILTTT FOE FALSE lUPBISONKBin*. 109
functions, and no one who lawfully employes them is liable if
they do. It is only where the party himself orders or en-
courages lawlessness that he can be treated as a joint wrongs-
doer, and then he is liable because he is actually a trespasser,
and is liable to the extent of his own misconduct.^
§ 9. In what cases the liability exists. — A party is liable
when he authorizes, encourages, directs or assists an officer to
do an unlawful act, or to do a lawful act in an unl&wful man-
ner, or to abuse, exceed or disregard his duty or authority ; as.
for example, when he directs the service of void process, the
arrest of a person privileged fron arrest, directs the refusal
of lawful bail, procures an arrest without process, or partici-
pates in the doing of any other act which the process or au-
thority of the officer will not legally justify.*
§ 10. Liability of parents and persons in loco parentis^
etc. — It is difficult to la}^ down any general rule as to the
liability of various persons in loco parentU in connection with
the wrong of false imprisonment; the different relations they
sustain to the transaction under consideration must determine
the liability in each. Cases falling under this title are those
in which the relation of parent and child, guardian and ward,
teacher and pupil, master and apprentice exist. In all these
cases such restraint is lawful and permissible as, in the exer-
cise of a sound discretion, the parent or person occupying his
place shall deem necessary. It is said this power exists in a
greater degree in the case of parent and child than in the
other oases, for the exercise of which he cannot be held ac-
countable except in case of its manifest abuse. The limit to
the exercise of his authoritv seems to be that his restraint
must be for the purpose of correction; it must be moderate,
dictated by reason and not by passion.' If the parent exceeds
the limits of the law he is liable to a criminal prosecution, but it
seems never to have been held that the child might maintain
^CampbeU, C. J., in Sutherland ▼. Bonesteel ▼. Boneeteel, 2S Wis., 245
iDgaUs, 68 Mich., 620; 6 Am. St. (1871); 80 Wis., 611 (1872).
Rep.. 882; --N. W. Rep., — (1886). 'Johnson y. State, 2 Humph.
Citing Michaels ▼. Stark, 44 Mich., (Tenn.), 288; Winterburn v. Brooks,
2; Nield v. Burton, 49 Mich., 58; 2 C. & K, 16; 7 Am. & Eng. Encj.
Piggott ▼. Sillj, 55 Mich.. 150; of Law, 666 (1889); Ckx>lej on Torts,
Word V. Detroit, etc., 62 Mich., 402. 171 (1879).
* Mecheoi on Public Officers, § 905 ;
110 LIABILITY VOR FALBB DIPSISONMBNT.
a personal action for the injary. " In principle," says Judge
Cooley, 'Hhere seems to be no reason why such action should
not be sustained; but the policy of permitting actions that
thus invite the child to contest the parent's authority is so
questionable that we may well doubt if the right will ever be
sanctioned." *
Applications op thb law. —
Excess of punishment, etc,, a question of fact for the jury,
Johnson and his wife were oonvicted of cruel and merciless punishment
upon their child. They took an appeal. In delivering the opinion of the
court, Turley, J., said: " The right of parents to chastise their refractory
and disobedient children is so necessary to the government of families
and to the good order of society that no moralist or law-giver has ever
thought of interfering with its existence, or of calling upon them to ac-
count for the manner of its exercise upon light or frivolous pretenses. But
at the same time the law has created this right, its regard for the safety of
the child has prescribed the bounds beyond which it shall not be carried.
In chastising a child the pai'ent must be careful that he does not exceed
the bounds of moderation and inflict cruel and merciless punishment ; if
he do, he is a trespasser and liable to be punished by indictment. It is
not then the infliction of punishment but the excess which constitutes the
offense ; and what this excess shall be is not a conclusion of law but a ques-
tion of fact for the determination of the jury. Bearing in mind this
principle, let us examine the charge of the court below, and see whether
this case was then properly submitted to a jury. The judge toid: If
the jury believed that the defendants took hold of the child, and one of
them struck the child with his flst and pushed her head against the wall,
and then led her off to another house and with a stick or switch struck
her as she was led along, and that the defendants took the child into a
room and tied her to a bed-post with a rope, and kept her tied thus for two
hours, or even half an hour, and in this situation whipped her with a cow-
skin at different intervals, as described by witnesses, it would clearly ex-
ceed moderation and reason and would be barbarous in the extreme. Now
under this charge what was left for the consideration of the jury? Surely
nothing but the credibility of the witnesses. They were told if they be-
lieved them then there was an excess of punishment. Now, is not this
making what constitutes excess of punishment a legal conclusion, instead
of a question of fact, or is it not charging the jury upon the facts? Un-
questionably it is. . . • The judge should have said to the jury, if you
believe the facts (stating them) as proven by the witnesses, and in your
opinion they constitute excess of punishment, then the law pronounces
the defendants guilty." Judgment reversed. JohnBonetal.v. The State,
2 Humph. (Tenn.), 288 (1840).
1 Cooley on Torts, 171 (1879).
LIABILITY FOB FAL8B IMPRISONMENT. Ill
§11. Guardian and ward.— A guardian of the person of
bis ward has a right of personal restraint corresponding to
that of a parent, but without the general power of chastise-
ment, except, perhaps, in cases of the extreme youth of the
ward.^
§ 12. Master and apprentice. — This relation depends upon
statutory enactments giving to the master what authority he
possesses. The power of the master is, in general, a power of
restraint to a limited extent .to compel the performance of
duties under articles of indenture, but under the present con-
dition of things the existence of this power is somewhat
doubtful.*
§ 13. Teacher and pnpll. — The teacher, to whom a child
is committed by its parents or guardian, has the right of re-
straint, and even of punishment, ta compel obedience to law-
ful orders, but, like the authority of the parent, it must be
exercised with moderation; and while the presumptions of the
law are in favor of the teacher, yet, in a clear case of abuse, he
may be held liable in a criminal prosecution,' and also in a
civil suit for damages.^
§ 13a. The law stated by Stewart, J.— " In one respect
the tendency of the rod is so evidently evil that it might,
perhaps, be arrested on the ground of public policy. The
practice has an inherent proneness to abuse. The very act of
whipping engenders passion, and very generally leads to ex-
cess. When one or two stripes only were at first intended,
several usually follow, each increasing in vigor as the act of
striking inflames the passions. This is a matter of daily
observation and experience. Hence the spirit of the law is, and
the leaning of the courts should be, to discountenance a prac-
tice which tends to excite human passions to heated and ex-
cessive action, ending in abuse and breaches of the peace.
Buch a system of petty tyranny cannot be watched too closely
nor guarded too strictly. The tender age of the sufferers for-
1 Cooley on Torts, 171 (1879). 865 (1887) ; Cooper y. McJunkin, 4
*Cooley on Torts, 171 (1879). Ind., 290 (1853).
•Cooley on Torts, 171 (1879); Com. ^Lander v. Beaver, 82 Vt., 114
y. BandaU, 4 Gray (Mass.), 86 (1855); (1869); Morrow y. Wood, 85 Wi&, 59
Hathaway % Rice, 19 Vt, 102 (1846); (1874).
State V. Pendergrass, 2 Dev. & Bat,
-112 LIABILITY FOB FALSB IMPRISONMENT.
bids that its slightest abuses should be tolerated. So long as
the power to punish oorporally in school exists, it needs to be
put under wholesome restriction. Teachers should therefore
understand that whenever correction is administered in anger
or insolence, or in any other manner than in moderation and
kindness,* accompanied with that affectionate moral suasion
so eminently due from one placed by the law in loco pa-
rentis — in the sacred relation of parent — the courts must con-
sider them guilt}' of assault and battery, the more aggravated
and wanton in proportion to the tender years and dependent
position of the pupil. The law having elevated the teacher
to the place of the parent, if be is still to retain that sacred
relation, it becomes him to be careful in the exercise of his
authority, and not make his power a pretext for cruelty and
oppression." *
Applications of the law. —
The criminal action — The extent of the potter — Excew a qatstion for th€
jury,
Alonzo D. RandaU was coDTicted of excessiirely punishing a pupil
named Lucy A, on Keoch. On the trial there was evidenoe showing that
the pupil disobeyed a proper rule of the school, which had been published
by the teacher to the school in her presence. The teacher introduced evi-
dence to show that the pupil was obstinate, told falsehoods, and was inso-
lent before and during the time of punishment. He alleged it was for
those faults that he inflicted the punishment. There was also evidence
tending to show that the punishment was not very severe till after the
pupil had replied to him with insolent words and manner. It was shown
that he ceased punishing her when she acknowledged her fault, asked' for-
giveness and promised to behave better.
The court instructed the jury " that a teacher had a right to inflict cor-
poral punishment upon a scholar; that the case proved was one in which
such punishment might properly be inflicted; that the instrument used (a
ferrule) was a proper one; that in inflicting corporal punishment a teacher
must exercise reasonable judgment and discretion, and must be governed
as to the mode and severity of the punishment by the nature of the offense,
by the age, sise and apparent powers of endurance of the pupil ; that the
only question in this case was whether the punishment was excessive and
improper, and if they should find the punishment to have been reasonable
and proper, the defendant could not be deemed guilty of an assault and
battery ; but if, upon all the evidence in the case, they should find the pun-
iehment to have been improper and excessive, the defendant might prop-
1 Cooper V. McJunkin, 4 Ind., 290 (1858).
LIABILITY FOR FALSE IMPRISONMENT. 113
-erly be found guilty.'* The jury found the defendant guUty, and he alleged
exceptions.
Bigelow, J., said: "The instructions given tended to justify the defend-
ant in punishing his pupils with greater severity than is consistent with a
just and humane exercise of the authority conferred on him by law. To
Bay the least they were sufficiently favorable to the defendant. If in inflict-
ing punishment upon his pupil he went beyond the limit of moderate casti-
gation, was guilty of any unreasonable or disproportionate violence or
^orce, he was clearly liable for such excess in a criminal prosecution.
1 Hawk. P. C, ch. 60. § 23; 1 Russell on Crimes (7th Am. ed.), 755; Bac.
Abr., Ass. & Bat., C. It is undoubtedly true that in order to support an in-
dictment for assault and battery, it is necessary to show that it was com-
mitted ex intentione, and that if criminal intent is wanting the offense is
not made out. But this intent is always inferred from the unlawful act.
The unreasonable and excessive use of force on the person of another b^ng
proved, the wrongful intent is a necessary and legitimate conclusion in
«11 cases where the act was designedly Committed. It then becomes an
assault and battery, because purposely inflicted without justification or
excuse. Whether, under all the facts, the punishment of this pupil is ex-
cessive, must be left to the jury." Com. v. Randall, 4 Gray (Mass.), 88
(1855).
§ 1 4. Other similar relations. — Circumstances may place
^nj person in authority over another, where restraint would
not only become excusable but a duty.
An example: The safety of a ship, its passengers and crew might depend
upon strict subordination of all persons on board to the captain or master
of the vessel. In such cases all persons must, of necessity, submit them-
selves to the proper orders of those in authority.^
Applications of thb law. —
(1) Liability of the captain and master of a vessel for acta of discipline on
the high seas,
Howard brought an action against Brown, the master of the ship Tea-
plant, and two others, who were mates, for false imprisonment on the high
seas. It was shown on the trial that, while it was blowing very hard, and
the plaintiff and some others were engaged in hoisting and belaying the
foresail. Brown, the master, took up a mallet, and, after cursing at them,
threatened to knock out their brains if they did not exert themselves more.
They were then ordered aft by the captain to hoist the mizzen staysail,
who, having procured a rope about half an inch thick, violently attacked
Ihe plaintiff and gave him eight or ten blows with the rope. Howard then
asked him what he meant by it, and the master again struck him a num-
ber of blows, and then endeavored to force him to go aloft to slush the sky-
iCboley on Torts, 172 (1879); Brown Fleming v. Ball, 1 Bay (S. C), 8
▼. Hound, 14 Johns., 119 (1817); (1784).
8
114 LIABILITY FOR FALSE IMPBI80KMKNT.
kail mast, where, from the roughness of the sea, a sailor could not go wittf*
Bafety. He said he had heen so beaten that he could not hold on, and he
seized and clung to some part of the rigging. The captain pulled him with
violence until he forced him away, and both by the violence of the cap-
tain's effort and the rolling of the ship, they both fell upon the deck.
Afterwards, by the order of the captain, the two mates tied him hand
and foot and laid him on the quarter-deck, where he was suffered to lay
exposed to the inclemency of the weather in the month of March for fivo
days and. nights. Then he was asked by the captain if he would do hi»
duty, and on being answered in the aiSrmative, he was released. The
plaintiff recovered $125. The defendants brought error.
In affirming the judgment, Thompson, C. J., said : "If this was an ille-
gal act in the captain, the mates were not bound to obey him, and cannot
excuse themselves under such order. A master has no right to command
his servant to commit a trespass or do a wrongful or unlawful act. From
the facts stated in the return it appears to me that the conduct of the cap-
tain, to say the least of it, was harsh and rigorous, and altogether unjusti-
fiable; and unless we are warranted in presuming the statement to be in
some degree colored by the witnesses, who were fellow-seamen with th&
plaintiff, the conduct of the captain merits severe animadversion. Al-
though a captain may have a right to inflict corporal punishment upon a
seaman under his command, yet it is not an arbitrary and uncontrolled
right. He is amenable to the law in the due exercise of it He ought to
be able to show not only that there was a sufficient cause for chastise-
ment, but that the chastisement itself was reasonable and moderate.
2 Bos. & Pull., 224; 8 Day*s Rep., 285. The rule on this subject is laid
down by Abbott on Shipping, 125. By the common law, he says, the
master has authority over all the mariners on board the ship, and it is-
their duty to obey his commands in all lawful matters relative to the nav-
igation of the ship, and the preservation of good order ; and, in case of
disobedience or disorderly conduct, he may lawfully correct them in a
reasonable manner, his authority in this respect being analogous to that of
a parent over a child, or a master over his apprentice or scholar. Such
authority is absolutely necessary to the safety of the ship and of the lives
of the persons on board ; but it behooves the master to be very careful in>
the exercise of it, and not to make his parental power a pretext for cruelty
and oppression. Not being able to discover from the return the least jua-
tification for the captain's treatment of the plaintiff below," etc., the judg-
ment is affirmed. Brown v. Howard, 14 Johns. (N. Y.), 120 (1817).
§ 15. Liability of keepers of charitable institutions —
Superintendents of asylums for the insane^ etc. — (1) Con-
jinement of a lunatic in an asylum without a judicial inquiry :
The superintendent or keeper of an asylum or hospital for the
insane who receives a person into his keeping without being
authorized by a judicial inquiry and determination of the fact
of such person's insanity, does so at his peril, and if the per-
son so received objects, protests or does not consent to such-
LIABILITY FOE FALSE IMPBISONMENT. 115
confinement, and it afterwards turns oat that the person was
not in fact insane, then the superintendent or keeper is liable
for false imprisonment.^
§ 1 6. Liability of the superintendent of an insane asylum —
Not acting under legal adjudications — The law stated by
Cooley. — The powers actually conferred upon this office are
clearly administrative and limited, and, like all corresponding
officers, he inust at his peril keep within their limits. The
hardship of this is not special and peculiar to his office. The
sheriflF commits an actionable wrong when by mistake he
arrests the wrong person, or levies on property not belonging
to the defendant in the writ; the magistrate may commit a
similar wrong in honestly asserting a jurisdiction he does not
possess; the assessor in mistakenly imposing a tax upon a per-
son not within his jurisdiction; the military officer in enforc-
ing military law under error regarding his legal powers, and
so on. All officers are liable to similar errors, but the rule of
law, no less than the rule of justice, is that he who commits
the mistake shall bear the consequences. The opposite rule
would invite outrage and wrong instead of tending to prevent
them, and would therefore be wholly inadmissible. Purity of
motive should protect the officer against excessive damages^
but individual rights must have settled and definite rules of
protection, and cannot be left to depend upon the opinion of
an officer as to what he may or may not do in abridging
them.'
§ 17. The superintendent as a judicial officer. — There are
cases in which powers that the superintendent of .'an asylum
necessarily exercises seem to be judicial, especially the case of
patients received when insane, and improved, and supposed to
be cured by the treatment they have received. The time comes
iDavifl V. Merril, 47 N. H., 208 B. & C, 669; Rex v. Turlington, 2
(1868); Van Dusen t. Newcomer, 40 Burr., 1115; Brookshore v. Hopkins,
Mich., 90 (1879); Colby v. Jackson, Lofft., 240.
12 N. H., 626(1842); Ex parte Green- 2 Com. v. Kirkbride, 3 Brewster,
wood. 24 L. J. Q. B.. 148; Denny v. 586 (1869); Look v. Dean, 108 Mass.,
Tyler, 13 Allen. 225; Fletcher v. 116; 11 Am. Rep., 823(1871): Ander-
Fletcher, 1 Ell. & Ell., 420: Hall v. son v. Burrows, 4 C. & P., 210; Van
Sample, 3 F. & F., 337; Lyman v. Dusen v. Newcomer, 40 Mich., 90
Fraser, 8 F. & F., 589; Rex v. Clark, (1879); Lott v. Sweet, 33 Mich., 80li
2 Burr., 1862; Rex v. Gomley, 7 (1876). *
116 LIABILTTT FOB FALSB IMPBISONMBNT.
when such persons are entitled to their discharge, but exactly
when it nas arrived the superintendent must in the first in-
stance decide. Should he maliciously contmue the confine-
ment after a cure has been effected, he would rightfully be
held responsible; but if through error in judgment he fails
to discharge the patient, he might with great justice claim the
benefit of the rule which under corresponding circumstances
protects oiBcers who exercise authority of a ^t^o^^-judicial nat-
ure. Sut under such circumstances the superintendent is
dealing with a case in which, insanity having unquestionably
existed, a presumption of its continued existence favors his ac-
tion.*
Applications of the law. —
(1) Keepers of charitable institutions,
RusseU G. Toles was the superintendent of the Baldwin Place Home in the
city of Boston, a corporation formed under the laws of Massachusetts
(St 1865, ch. 98) '* for the purpose of rescuing destitute children from want
and shame, providing them with food and clothing, giving them instruction
for the mind and heart, and placing them, with the consent of their par-
ents or legal guardians, in Christian homes." An action for false impris-
onment was brought against him by one Kate Smith as next friend in
behalf of one of her three children. On the trial it appeared that the
mother (Kate Smith) had a settlement in Lowell. Her husband being dead
and she being sick and partially insane, with her three children, being in
need of relief and support, as paupers, were taken to the city poor-house
to be cared for according to law. The overseers of the poor voted to trans-
fer the children to the said Baldwin Place Home, and upon such transfer
the defendant as superintendent received them. At the trial the court
directed a verdict for the defendant. On exceptions the directions were
sustained. Chapman, J. : "As the overseers were not bound to retain them
within the city limits, but might provide for them elsewhere in a suitable
place within the limits of the commonwealth, they might lawfully place
them there (in the home). Of course the defendant, who was the superin-
tendent of the home, might lawfully receive chem." ..." The evi-
dence fails to prove that she (the child) was in his custody or under his
control ; or that the overseers were not providing for her as a pauper, in
the discharge of their duty.'* Smith v. Toles, 106 Mass., 265 (1871). See
Smith V. Peabody et al., 106 Mass., 262 (1871).
(2) Unauthorized detention of a harmless lunatic
It was claimed that Mr. Look was a lunatic. He would read his Bible
and preach to crowds of men. While he was on a steamboat on his way
to Oak Bluffs, where a camp-meeting was in progress, he was arrested by a
1 Van Dusen v. Newcomer, 40 Mich., 90 (1879),
LIABILITT FOB FALSE IMPBISONMENT. IIT
coDBtable and kept in custody till arrival of the boat, when he was taken to
the lock-up on the camp-ground and there kept during the day. Then an«
other constable took him to the insane hospital and desired to leave him
there until the following Monday, for the purpose and with the intention
of procuring some papers necessary to make his detention legal. The
superintendent being absent, his assistant received Mr. Look, believing him
to be a fit subject for hospital treatment, and kept him confined until Mon-
day, when his friends came and took him away. He was, within the mean-
ing of the law, an insane person, and a proper subject for treatment in the
hospital, though not dangerous to himself or the community. On his re-
lease he brought an action for false imprisonment against Mr. Choate, the
superintendent of the insane hospital, for unlawfully confining him. The
case was before the supreme judicial court on demurrer. In delivering the
opinion Chapman, C. J., said: ** We look in vain in the statutes for any
authority in the constable to take the plaintiff to the hospital, or to arrest
him without a warrant, even though his purpose was to detain him till he
could carry him before the judge of probate, and procure a warrant, the
plaintiff not being dangerous either to himself or others. The statutes
give no authority to arrest harmless persons without a warrant, even for
the purpose of bringing them before the judge of probate. Being a mere
stranger to the plaintiff, and abandoning the arrest without making any
return, he had not even the rights that a relative or friend would have.
He brought the plaintiff to the hospital tortiously, and no authoiity could
be derived from him for the plaintiff's detention. As the plaintiff was not
detained by virtue of the statutes, or by any power derived from the com-
mon law, all persons connected with the detention are wrong-doers." The
demurrer was overruled and the case ordered for trial. Look v. Choate &
Dean, 108 Mass., 116 (1871).
§ 18. Legal adjudications not necessary in eyery in-
stance — The law stated by Cooley, J. — " It is not essential
that a judicial bearing and determination should be bad in
every instance before an insane person can be admitted to
the asylum. I concede that the right to restrain these unfor-
tunate persons for their own benefit, as for the protection of
others, is as clear as the right to restrain one who, in the de-
lirium of fever, would break away from his attendants, or one
who, with a contagious disease upon him, should attempt to
enter a public assembly. But the first thing to be determined
is whether there is insanity in fact. And in any case, where
that is open to possible question, prudence would dictate a judi-
cial investigation, unless the reasons against it are so impera-
tive as not to admit of the necessary delay, or unless the inves-
tigation would probably be so far damaging to the subject of it
as to more than counterbalance the probable benefits. It is no
doubt true that a trial of the fact would be more or less excit-
118 LIABILITY FOB FALSE nCFBISOKMENT.
ing or disturbing to a mind already in a diseased or abnormal
condition; but that the consequences would be more serious
than those likely to follow from the sudden arrest and re-
moval for confinement in the asylum of a person who believes
himself perfectly sane is by no means certain. An insane
person does not necessarily Iosq his sense of justice or his
right to the protection of the law; and when he is seized with-
out warning, and without the hearing of those whom he might
believe would testify in his behalf, and delivered helpless into
the hands of strangers, to be dealt with as they may decide
within the limits of a large discretion, it is impossible that he
should not feel keenly the seeming injustice and lawlessness
of the proceeding."*
§ 19. A public inTestigatlon not always a satisfactory
test. — ^^ It may be said with perfect truth that a public in*
vestigation is no very satisfactory or certain test of insanity,
and that the superintendent of the asylum is much more com-
petent to determine the question than the average judge or
jury. But safety is not found in the competency of the tri-
bunal merely ; it is the publicity of the proceeding, and the
opportunity that is afforded for meeting a fastidious or de-
ceptive case, that constitute the chief protection. There is
always danger that a secret investigation shall be made, by
those who manage it, to reach the conclusion desired irrespect-
ive of the real facts; and the intelligence of the tribunal
can constitute but an imperfect protection. Indeed, if one is
to be judged unheard he must be condemned almost as a
matter of course in any case where upon the facts there could-
be two opinions; and those are the very cases in which in-
vestigation ought to be careful, particular and thorough in
proportion to the gr^-vity of the consequences of error." *
§ 20. Further discussion of the subject -^ Difficulties of
proceeding without judicial inquiry. — If an insane person
is to be confined on the ground that his going at large is dan-
gerous to the community, any one person has the same right
to pass judgment upon his case as any others, and when
opinions differ respecting the necessity for restraint, one per-
son may bind and another release the subject of their con-
iVan Duaen v. Newcomer, 40 ^Van Dusen v. Newcomer, 40
Mich., 90 (1879). Mich.. 90 (1879).
UABILITY FOB FALSS IHPBISOKMENT. 119
iBicting opinions at discretion. Such a condition of things
could not be tolerated. The difSculties are the same in kind
when the unqualified right of the family to remove a member
to tiie asylum for his own advantage is conceded. In law it
becomes necessary carefully to prescribe the limits of judicial
authority, so that such tribunal shall act with unquestioned
right within its own proper bounds, and shall be wholly ex-
cluded from the jurisdiction of others. That is necessary for the
protection of all classes of officers — those who judge and those
who are to execute their judgments. The latter class are to
know precisely what their duty is, so that they may proceed
to perform it without peril. Sut between the different mem-
bers of the family, proceeding to act upon their own opinions,
the clashing of authority must be imminent in every case not
perfectly clear and unquestioned. One part of the family
may believe in an insanity which the other denies; and where
the one rightfully confines, the other may rightfully demand
the discharge. Nor in this family jurisdiction can the judg-
ment of the supposed insane person be excluded; for until his
insanity is determined he has the same right to judge that the
-others are insane as they have to judge that he is.^
§21. £ffect of a judicial inquiry — The law stated bj
Cooley, J. — " The great defect, however, of all reasoning in
favor of confinement without legal investigation, is that it as-
sumes the person to be insane. Being insane, it is said he
ought not to be subjected to the excitement of a public and
perhaps prolonged investigation. But suppose he proves not
to be insane; are there no consequences still more serious to
be looked for from exposing him to the excitements of a sud-
den seizure and incarceration without a hearing, and a pro-
longed detention among persons unquestionably insane? In
a given case the man who seizes and imprisons another
does so upon evidence of mental disease, which, if he were a
prudent man, he would not have acted upon in any important
money transaction — the mere word of one or two persons who
might, for aught he knew, be interested in making a false
•case for the purpose. Such treatment in the case of a sane
|)erson of a highly sensitive physical and mental organization
1 Van Dusen v. Newcomer, 40 Mich., 90 (1879).
120 LIABILITY FOR FALSE IMPBI80NMBNT.
must necessarily prove a powerful tendency to induce the-
very condition which the arrest and confinement assume,
and if the law would permit it, the possible wrongs in indi-
vidual cases would be nothing short of the destruction of the
intellect itself."^
Application of the law. —
Confinement in an asylum for the insane without judicial authority »
Mrs. Newcomer, being at the passenger house of the Michigan Central
Railroad at Albion, was forcibly taken and put aboard of the cars and taken
to the asylum for the insane at Kalamazoo, where she was restrained of
her liberty for a period of ten months. The persons chiefly instrumental
in procuring this confinement were her son-in-law and his mother, with
whom she had had some difficulty, but her daughter gave consent. Th&
person who accompanied her to the asylum was an overseer of the poor, whOr
it is conceded, had no legal authority for interference, beyond that which
might be claimed for any citizen. The reason for assigning Mrs. Newcomer
to the asylum was her insanity. There had been no judicial finding of the
fact, and it was not alleged that there were any such manifestations of
mental delusions as indicated danger to others. Van Dusen was at the time
superintendent of the asylum, and received and detained Mrs. Newcomer in
the full belief that she was insane. On being discharged from theasylum^
she brought suit against the superintendent for false imprisonment, and re-
covered a verdict for $6,000, upon which judgment was entered. The de-
fendant took the case to the supreme court on error, where the judgment
was reversed. In the opinion by Campbell, C. J., it is said: The law haa
but one test of insanity, and that is whether a person is compos mentis^ or
capable of exercising rational self-control. If not so capable, those who have
by relationship or otherwise become the actual and proper custodians of the
person who is non compos may lawfully place him in a public asylum for
treatment, and the superintendent may lawfully receive him. Having so
lawfully received him, he may lawfully retain him, while in good faith he
believes him insane, unless discharged by habeas corpus or by the request
of his friends. Nothing but actual insanity will authorize the seclusion of
one who makes known his objections and claims against reception. If no
objection is made by a sane person to his seclusion, he cannot complain of
it afterwards.
For the purpose of treatment in an asylum, it is certainly not necessary
that in addition to insanity there should be evidence of danger to the
lunatic or others beyond what is implied in the insanity itself. For other
purposes, not designed for the care of the patient, imprisonment could not
be justified probably without some danger. It is always justifiable in such
cases. Lott v. Sweet, 83 Micb.» 308. But no such danger was necessary to
be shown here. If she was insane, then there was nothing to make out any
cause of grievance whatever; and if she was sane, there was no testimony
in the case which could make Van Dusen responsible for any act of her
1 Van Dusen v. Newcomer, 40 Mich., 90 (1879); Cooley on Torts, 178.
IJ ABILITY FOE FALSE IMPRI80NMBNT. 121
relatives or their agents, or for anything heyond what was necessarily in-
cident to the confinement in a.properly regulated asylum. JTlie rules and
regulations were all shown beyond dispute to be proper, and if any other
person in the asylum, without his procurement, did acts of an improper
character, he cannot be bound to respond for them. There was no evi-
dence legally tending to show conspiracy or bad faith in plaintiff in error,
and the testimony of insanity was very strong; and I cannot avoid the be-
lief that unless the jury had been instructed that Mrs. Newcomer could
not be confined unless dangerous as well as insane, no verdict could have
been rendered against Dr. Van Dusen. Van Dusen v. Newcomer, 40 Mich.,
90 (1879).
The authorities are uniform that there must be consent or actual in-
sanity. King V. Coate, Lofft, 73-76; Brookshaw v. Hopkins, Lofft, 340;
In re Shuttleworth, 9^. B., 651; Rex v. Gourley, 7 B. & C, 669; Ander-
don V. Burroughs, 4 C. & P., 210; Rex v. Turlington, 3 Burr., 1115; Rex v.
dark, 2 Burr., 1862; Scott v. Wakem, 3 F. & R, 328; Symm v. Fraser, 3
F. & F., 859; Hall v. Semple, 3F. & F., 887; Fletcher v. Fletcher, 1 Ell. &
EU., 420; Ex parte Greenwood, 24 L. J., Q. B., 148; Denny v. Tyler, 3 Allen,
225; Look v. Dean, 108 Mass., 116; Colby v. Jackson, 12 N. H., 526; Davis
V. Merrill, 47 N. H., 208.
§ 22. Liability of persons apprehending a lunatic without
legal process^ etc. — In all cases where there is no legal guard-
ian, the law intrusts it to the relations and friends of an in-
sane person to place him in an asylum in a proper case. To
justify them in so placing him there, it is not necessary that
the insane person should be dangerous. If it is proper that
he should be placed there because his case requires treatment
in the asylum, with a view to his cure, or because his insanity
is of such a character as to make it improper that he should
remain in his family or in the neighborhood on account of
the disturbance and trouble caused by his insanity, or for any
other sufficient cause, the relations and friends may place him
in the asylum. And if they act from good motives, with
prudence and sound discretion, the law intrusts it to their
judgment to decide, where there is no guardian, the question
of his confinement in the asylum; and if they exercise their
best judgment honestly and discreetly they are justified. Bat
such friends and relations cannot decide whether the person
is in fact insane: that fact is for a judicial inquiry. And if
it turns out in the end that the person was not in fact insane,
then thej' can justify the inprisonment only by showing a con«
sent to such confinement on the part of the person confined*^
^Davia v. Merrill, 47 N. H., 208 526(1842); Van Dusen v. Newcomer,
(1866); Colby v. Jackson, 12 N. H., 40 Mich., 90 (1879).
122 LIASILITT FOB FALS^ DfPBISON^CENX
§ 33. The right to apprehend and confine insane persons
under legal adjndleation. — The rales of the common law-
relating to the apprehension and confinement of insane per-
sons, or to the restraint of their liberty, have been the cause
of so much abuse and oppression that the people have sought
a remedy in statutory enactments. Under these enactments
a strict compliance with the requirements of the law is neces-
sary to restrain an}' person, especially i^n alleged lunatic, of
his liberty.^
§ 24. Bestraint of insane persons — The law stated by
Cooley. — It is sometimes provided by statute that no one
shall be restrained of his liberty as an insane person except
upon the certificate of one or more reputable physicians. Such
certificates may prevent injustice in some cases; but as a phy-
sician is not a judicial officer, and has no judicial powers, it is
not an adjudication and cannot be given the force of law so
as to protect parties who imprison one not insane in fact. It
might assist in showing that the parties bad acted in good
faith, and therefore ought not to be subjected to exemplary
damages; but it could not bind the party whose reason had
been condemned without a hearing. !N^othing but a judicial
1 As a fair iUustration of these stat- Penalty. — If any superiDtendent,
utory enactments we quote the stat- or other officer or person connected
ute of lUinois : with either of the state hospitals for
Tbial bt jury necessaby. — No the insane, or with any hospital or
superintendent, or other officer or asylum for insane or distracted per-
person connected with either of the sons, in this state, whether public or
state hospitals for the insane, or with private, shall receive or detain any
any hospital or asylum for insane or person who has not been declared
distracted persons, in this state, shall insane by the verdict of a jury, and
receive, detain or keep in custody, whose confinement is not authorized
at such hospital or asylum, any per- by the order of a court of competent
son who shall not have been declared jurisdiction, he shall be confined in
insane by the verdict of a jury, and the county jail not exceeding one
authorized to be confined by the year, or fined not exceeding $500, or
order of a court of competent juris- both, and be liable civilly to the per-
diction ; and no trial shall be had of son injured for all damages which
the question of the sanity or insan- he may have sustained ; and if he be
ity of any person before any judge connected with either of the insane
or court, without the presence of the hospitals of this state, he shall be
person alleged to be insane. L. 1867, discharged from service therein. L.
p. 189, § 1 ; L. 1865, p. 85, § 1 ; R S. 1867, p. 189, § 2; R. S. 111. 1874, 684.
111. 1874, 684.
UABILTIT VOS VALSE IHPBISOlTlCEirr. 123
investigation instituted for the purpose of trying the question
of insanity, and in which the supposed non compos is allowed
the opportunity of being heard, can conclude him.^
1 Cooley on Torts, 178 : Underwood certify that reason is restored. Un*
T. People, 82 Mich., 1 ; 20 Am. Bep., derwood v. People, 82 Mich., 1.
638; Colby v. Jackson, 12 N. H., 526. Cases in Ttrhioh one has committed
The difficulties in the way of legis- an act which in a sane person
lation on this subject are the follow- would be a crime, and has been ac-
ing: 1. There has as yet been no quitted on the ground of insanity,
adjudication that the person at the are always embarrassing. If the
time of acquittal is insane, and if verdict is right on the facts, the prin-
not, he cannot lawfully be confined, ciple on which he is acquitted is
An insanity which has passed away plain enough. No one can commit a
cannot excuse an imprisonment, crime who is incapable of harboring
2. If it be allowable to assume that a criminal intent. The difficult ques-
an insanity found to exist at one tion concerns what shall be done
time still continues, and on that with him afterwards. And one would
ground to commit the party to an naturally suppose that this question
asylum as presumptively insane, still ought not to be a difficult one. If a
the supposed non compos would person, from mental disease, is un-
have a right to disprove this pre- able to control his own actions, and
aumption at any time. To deny is impelled by delusions or frenzy to
him the right to have his case in- commit violence upon others, he
vestigated on the facts at any time ought to be subjected to legal re-
would be to distinguish his case from straint. Cooley on Torts, 178, note,
that of other insane persons; and The popular belief is that in a
this must be justified on some legal large proportion of these cases the
ground. It certainly could not b^ defense of insanity was a fraud, or
justified on the ground that the jury at least the suggestion of insanity
had rendered an improper verdict; has been seized upon as an excuse
the verdict must be taken as correct, for discharging a guilty person for
But as no other ground can possibly whose acquittal the jury could sug-
be suggested, it must foUow that the gest no other reason. This belief
restraint of liberty, though based has subjected the administration of
upon a verdict which found the ex- the law to much criticism ; and by
istence of insanity, must be made to some unthinking people the law it-
^sease whenever a judicial investiga- self is assailed. The fault in such
tion, which is a matter of right, shall cases is that the jury, improperly
determine that insanity does not ex- actuated by sympathy, assign one
ist. It is not possible constitution- reason for acquittal, when the real
ally to provide that one shaU be im- reason is something quite different,
prisoned as an insane person who They say, "We acquit because of
can show that he is not insane at all. insanity," when in their hearts they
Neither is it competent to order one mean, '* We acquit because we think
-so confined restored to his liberty the act excusable on grounds the
until certain designated officers, on law does not accept as an excuse.*'
iheir voluntary investigation, shall They assign a valid excuse because
124 LIABILITY FOB FALSE IMPRISONMENT.
§ 25. Persons confined as lanatlcs — Bemedy by habeas
corpus. — In cases where a person confined in an insane
asylum has become sane, and the keeper is not authorized to
discharge such peraon,or from some improper motive declines
to do so, or where a person, whether sane or insane, is detained
or confined as a lunatic without authority of law, it appears
that such person is entitled to be brought into court upon a
writ of habeas corpus in order that the question of his de-
tention may be inquired into and judicially determined.^
But on the application for this writ in such cases, it ought ta
appear that the party making the application is acting under
the authority of the alleged lunatic*
§ 26. The remedy by habeas corpus confined to what
cases. — The remedy by habeas corpus seems to be confined to
those cases in which —
>
(1). The confinement of the person does not appear to have
been authorized by any form or color of legal process.
(2) The form of proceeding was not so far according to the
course of the common law as to constitute a suit at law, and
so admit the party to his remedy b}*^ writ of error.'
(3) The person so confined as a lunatic has recovered his
sanity.
they know the real excuse is not case, confine them for a reasonable
valid. Shall a party thus excused time to prevent mischief, until
be turned loose upon society? This proper proceedings can be had for
is the problem. Certainly, if he is in- the appointment of a guardian. No
sane, he ought not to be, and the ver- one can confine an insane person in-
dict of the jury must be accepted as definitely except under the sanction
conclusive that at the time to which and upon compliance with the for-
their inquiry* was directed he was malities of the law. Colby v. Jack-
insane in fact But that time was son, 12 N. H., 526.
not the time of the trial; it was the i Com. v. Kirk bride, 2 Brews., 400
time of the alleged criminal act (1868); Com. v. West Penn. Hos., 8
Suppose, now, it be provided by le^- Pittsb., 299 ; Underwood v. People, 32
islation that a person thus acquitted Mich., 1 (1875); Regina v. Pindar, 24
shall be committed to an asylum as L. J. (N. S.), Exch., 148; Rex v.
a permanent inmate; is this ad mis- Choate, Lofft, 73; Rex v. Wright, 2
sible? Cooley on Torts, 178, note. Strange, 915; Rex v. Turlington, 2
Selectmen and overseers of the Burr., 1115; Bus well on Insanity,
poor have no authority ex officio to § 22 (1885).
control and restrain persons of un- * Child, Ex parte, 15 C. B., 237;
sound mind. Like all other persons Buswell on Insanity, § 22 (1885).
they may, from the necessity of the 8 Buswell on Insanity, § 22 {1885)*
LIABILITY FOR FALSE IMPBISONMENT. 125
In many states the remedy in these cases is prescribed by
-statutory enactments.^
§ 27. Judicial officer defined.— The term " judicial officer "
in its broadest sense signifies a public officer invested by law
with the power and duty of exercising judicial powers. The
term in this work will be used to signify such officers as exer-
^ise judicial powers in courts of greater or less jurisdiction,
judges and inferior magistrates.
A quasi-judicml officer is one who is called upon to exercise
judgment and discretion, but not in courts.^
§ 28. The rale of liability of judicial officers.— The rule
•of liability, as it affects judicial officers when acting within
their jurisdiction, may be briefly stated as follows: "Such as
are by law made judges of another shall not be criminally ac-
-Gused or made liable to an action for what they do as judges." •
It is a very ancient law, and the converse of the proposition
is also ancient, ''Where there is no jurisdiction at all there is
no judge, and the proceeding is as nothing."* The law has
■come down to modern times unchanged. The judges of courts
of superior or general jurisdiction are not liable to civil ac-
tions for their judicial acts, even where such acts are in ex-
cess of their jurisdiction and done maliciously and corruptly.
There is a distinction, however, between their acts done in
excess of their jurisdiction, and those done in the clear ab-
sence of all jurisdiction over the subject-matter of the contro-
versy.* The rule of liability as applied to courts of inferior,
limited jurisdiction is somewhat different, the judges of those
1 An tllTistration — The statute of or negligently, the superintendent
Illinois: Restobation to Reason — shaU pay all the cost of the pro-
DisCHABOB.— When any patient shall ceeding. Such superintendent shall
be restored to reason, he shall have moreover be liable to a civil action
the right to leave the hospital at any for false imprisonment. R. S. III.
time ; and if detained therein con- 1874, p. 681, § 20.
trary to his wishes after such res to- 2 Mechem on Public Officers, § 617
ration, shall have the privilege of a (1890).
writ of Tiabeas corpus at all times, > Year Book, 43 Edw.IIL, 0 ; 9 Ed w.
either on his own application or that IV., 3; Floyd v. Baker, 12 Coke, 26.
of any other person in his behalf. ^Perkins v. Proctor, 2 Wils., 382.
If the patient is discharged on such ^ 7 Am. & Eng. Ency. of Law, 668
writ, and if it shall appear that the (1891).
superintendent has acted in bad faith
126 LIABILITT FOB FALSE IMPSI80NMENT.
courts being liable to civil actions for all acts done by thenr
in excess or outside of their jurisdiction.^
§ 29. Jadges of superior courts liable^ when. — The pre-
sumption being that superior courts, that is, courts of general
jurisdiction, never exceed their authority and always act within
their jurisdiction, it is a well-settled rule of law that the
judges of such courts can only be held liable in civil actions
in those cases in which there is a clear absence of all juris-
diction whatever.- It is not sufficient to show that thev have
merely exceeded their jurisdiction: there must be a clear ab-
sence of it'
§ 30. Excess of jurisdiction and want of jurisdiction
distinguislied. — A distinction must be observed between ex-
cess of jurisdiction and the clear absence of all jurisdiction
over the subject-matter. Where there is clearly no jurisdic-
tion over the subject-matter, any authority exercised is an
usurped authority, and for the exercise of such authority, when
the want of jurisdiction is known to the judge, no excuse
is permissible.*
Applications op the bule. —
Judge of a superior court — Illegal sentence — Imprisonment thereunder^
etc.
In October, 1878, the defendant, Benedict, was judge of the district oourt
for the United States of the eastern district of New York. As such, by
virtue of an act of congress, he presided at and held the circuit court of the
United States for the southern district of New York for the October term
of that year. The plaintiff. Lange, was at that time arraigned upon an in-
dictment of twelve counts, the general import of which was that he had
stolen, embezzled or appropriated to his own use certain mail-bags, the
property of the United States, of the value of |25 ; he was tried upon the
indictment and found guilty, but the jury found the value of the mail-bags
to be less than |25. By the act of congress the punishment in such cases
was a fine of $200 or imprisonment for one year. The defendant, sitting as
such judge and holding that court for that time, sentenced the plaintiff to
pay a fine of $200 and to be imprisoned for one year. The punishment
> People V. Liscomb, 60 N. Y., 559 der v. Holkett, 8 Moore's Privy
(1875); Bigelow v. Steams, 19 Johns. Council Cases, 28 (1840).
(N.Y.), 39(1821). 'Bradley v! Fisher, 18 Wall.
2 Bradley v. Fisher, 18 Wall. (U. S.), 885(1871).
(U.S.), 335 (1871); Randall V. Brig- * Bradley v. Fisher, 18 WalU
ham, 7 Wall. (U. S.), 523(1868); Cal- (U. S.). 335 (1871); Johnston v. Moor-
man, 80 Va., 131 (1885).
it
LIABILITY FOB FALSE IMPBI80NMENT. 12T
thus impofied, it will be seen, was more than that fixed by the law. The fine
was immediately paid, but the plaintiff was imprisoned five days under the
sentence. At the same term of court a writ of hahecui corpus was granted
in which the imprisonment of the plaintiff was made to appear. On the
return of the writ, the defendant, sitting and holding that court as the
judge thereof, vacated and set aside the previous sentence and passed judg-
ment anew upon the plaintiff, and resentenced him to be imprisoned for
the term of one year. Under this action he waa imprisoned, and which is
the wrongful imprisonment complained of. Afterwards the supreme court
of the United States adjudged the resentence to be without authority^
and discharged the plaintiff from imprisonment. He then brought an ac-
tion against the judge for false imprisonment. To, his complaint a de-
murrer was sustained by the supreme court in bane, and the case finally
reached the court of appeals on appeal by Lange.
On this state of facts the plaintiff insisted that the judge was liable in
damages. The defendant claimed that all that he (lid was done by him
as a United States judge, and that the judicial character in which he acted
protected him from > personal responsibility. In disposing of the case
Folger, J., said: In our judgment, the question between the parties ia
brought to what, in words at least, is a very narrow issue. Did the de-
fendant impose the second sentence as a judge; or, although he was at the
moment of right upon the bench, and authorized and empowered to exer-
cise the functions of a judge, was the act of resentencing the plaintiff sa
entirely without jurisdiction or so beyond and in excess of the jurisdiction
which he then had, as. judge, as that it was an arbitrary and unlawful act
of a private person? A narrow issue, but not so easily determined to the
satisfaction of a cautious inquirer. . . .
The general rule which applies to all such cases, and which is to be ob-
served in this, has been in olden times stated thus : Such as are by law
made judges of another shall not be criminally accused or made liable to
an action for what they do as judges, to which the Year Books (43 Edw.
III., 9 ; 9 Edw. IV., 8) are cited in Floyd v. Baker, 12 Coke, 28. The converse
statement of it is also ancient : the proceeding is as nothing (Perkins v.
Proctor, 2 Wilson, 882-884X citing the Marshalsea Case, 10 Coke, 65-76,
which says: "Where he has no jurisdiction, non eat fudex,** It has been
stated thus, also: No action will lie against a judge acting in a judicial ca-
pacity for any errors which he may commit in a matter within his jurisdic-
tion. Gwyne v. Rool, Lutw. , 290. It has been in modern days carried some-
what further than in the times of the statement. Judges of superior or
general jurisdiction are not liable to civil actions for their judicial acts, even
when such acts are in excess of their jurisdiction and are alleged to have
been done maliciously and corruptly. Bradley v. Fisher, 18 Wall. , 851. It is
to be seen that in these different modes of stating the principle there abides
a qualification. To be free from liability for the act, it must have been done
by a judge in his judicial capacity; it must have been a judicial act; so
it always remains to be determined, when is an act done as judge in a judi-
cial capacity? And this is the difficulty which has most often been found
in the use of this rule, and which is present here ^- to determine when the
facts exist which call into play that qualification.
128 LIABILITY FOB FALSE IMPSISONMEin?.
For it is plain that the fact that a man sits in the seat of justice, thongh
having a clear right to sit there, will not protect him in every act which
he may choose or chance to do there. Should such an one, rightfully
holding a court for the trial of civil actions, order the head of a by>stander
to be stricken off, and be obeyed, he would be liable. Thus a person in the
office of judge of the ecclesiastical court in England excommunicated one
for refusing to obey an order made by him, that he become guardian ad
litem for an infant son ; ^nd though the order was made in a matter then
lawfully before the court for adjudication and of which he as judge had
jurisdiction, he was held liable to an action. Beau vain v. Sir William
Scott, 8 Campb., 888. He had not, as judge, jurisdiction of the person to
whom he addressed the order. On the other hand, one rightfully holding
a court for the trial of a criminal action fined and imprisoned a juror for
that he did not bring in a verdict of guilty against one on trial for an offense,
after the court had directed the jury that such a verdict was according to
the law and facts. The juror was discharged from imprisonment on habeas
corpus brought in his behalf, and it was held that the act of fining and
imprisoning him was unlawful, inasmuch as there was no allegation of
corruption or like bad conduct against the juror. The juror then brought
an action against hiui who sat as judge and made the order for fine and
imprisonment, but took nothing thereby ; for it was held that the judge acted
judicially as judge, as he had jurisdiction of the person of the juror and
jurisdiction of the subject-matter, to wit, the matter of punishing jurors
for misbehaving as such, and that his judgment that the facts of the case
warranted him in inflicting punishment was a judicial error tcbe assailed
and set aside in due course of legal proceedings, for which, however, he
was not personally liable. Hammond v. Howell, Recorder of London, 2
Mod., 218; Bushell's Case, Vaughan Hep., 135. So a judge of oyer and
terminer was protected from indictment when he had made entry of rec-
ord that some were indicted for felony before him, whereas in fact they
were indicted for trespass only. 12 Coke, 25. Thus it appears that the
test is not alone that the act is done while having on the judicial charac-
ter and capacity, nor yet is it alone that the act is not lawful.
We have seen, too, that the test is not that the act was in excess of ju-
risdiction, or alleged to have been done with malice and corruptly ; for
even if it is such an act, it does not render liable the doer of the act if he
be a judge of a court of general or superior authority. Bradley v. Fisher,
18 Wall.. 451.
We think it clear that there is no liability to civil action if the act was
done "in a matter within his jurisdiction," to use the words of Gwynne
V. Pool, Lutw., 290. Those words mean that when the person assumed to
do the act as judge he had judicial jurisdiction of the person acted upon
and of the subject-matter as to which it was done. Jurisdiction of the
person is whien the citizen acted upon is before the judge, either construct-
ively or in fact, by reason of the service upon him of some process known
to the law, and which has been duly issued and executed. What is meant
by jurisdiction of the subject-matter we have had occasion to consider
lately in Hunt v. Hunt, 72 N. Y., 217. It is not confined within the par-
ticular facts which must be shown before a court or a judge to make out
LIABIUTT FOB FALSE IMPBISONMENT. 139
^A specific and immediate cause of action. It is as extensiye as the gen*
«ral rule as to abstract questions which fall within the power of the tribu*
nal or officer to act concerning. Our idea will be illustrated by a refer*
«noe to Groenvelt v. Burwell, 1 Ld..Ra7m., 454. There the defendants, as
censors of a college of physicians, had imposed punishment on the plaint-
iff for what they adjudged was malpractice by him. He brought hjs ac-
tion; they pleaded the charter of the college, giving them power to make
by-laws for the government of all practitioners in medicir.e i:i London, and
to overlook them and to examine their medicines and prescriptions, and to
punish malpractice by fine and imprisonment; that they had in the exer"
cise of that power adjudged the plaintiff guilty of malaprcunSt and fined
him twenty pounds, and ordered him imprisoned twelve months, nisi, etc.
It was held that the defendants had jurisdiction over the person of the
plaintiff, inasmuch as he practiced medicine in London ; and over the sub-
ject-matter, to wit, the unskilful administration of physic. That is the
language of Holt, C. J., in that case; and because the defendants had power
to hear and punish and to fine and imprison, it was held that they were
judges of record, and because judges, not liable for the act of fining and
imprisoniDg. See, also, Ackerly v. Parkinson, 8 Maule & Selw., 41 U It is
the general abstract thing which is the subject-matter, the power to in*
quire and adjudge whether the facts of each particular case make that
case a fact or an instance of that general thing — that power is jurisdic-
tion of the subject-matter. Thus in Hammond v. Howell, etc., 3 Mod.,
218. the defendant was saved from liability to civil action, inasmuch as he
had, as judge, jurisdiction of the subject-matter of punishing jurors for a
misdemeanor upon the panel. He made an error in deciding that the
facts of that case made an instance of that subject-matter. But the jurora
were within his jurisdiction of their persons and he had jurisdiction of the
subject-matter, and his error was a judicial error ; an act done guatenus
judge ; not an act as Howell, the private person, though it was an act con«
trary to law, grievous and oppressive upon the citizen.
The inquiry, then, at this stage of our consideration of the case, is this:
whether the defendant, sitting upon the bench of the circuit court, and
being upon that occasion dejure et de facto the circuit court, and having,
as such, jurisdiction of all persons by law within the power of the court,
and jurisdiction of all subject-matters within its cognizance, — whether he
had jurisdiction of the plaintiff, and of any subject-matter wherefrom
fae had authority to hear and adjudge whether the facts in the case of the
plaintiff, as then presented to him, fell within any of those subject-matters.
It is not the inquiry whether the act then done as the act of the court
was erroneous and illegal ; that is but another form of saying whether it
oould or could not be lawfully done, as a court, by the person then sitting
as a judge thereof. It is whether that court then had the judicial power
to consider and pass upon the facts presented, and to determine and ad-
judge that such an act based upon them would be lawful or unlawful.
That the defendant as that court had jurisdiction of the person of the
plaintiff is manifest. He was before it on a return to a writ of habeas car*
pua sued out by him, and was produced in court by the marshal to whom
the writ was sent. He was in the custody of law upon a judgment and
9
130 LIABILITY FOR FALSE IMPRISONMENT.
sentence of that court, the validity of which he was questioniog, and seek-
ing from that court a vacating and annulling thereof. At least, till the
order of vacating it was made, the plaintiff was lawfully within the power
of the court. That court also had jurisdiction of the subject-matter. It
might, by law, indict and try persons chai'ged with stealing and appropri-
ating mail-bags; it might pass sentence upon them, when duly convicted,
of fine or imprisonment; during the same term of the court at which one
sentence had been imposed, it might vacate it or modify it as law and jus-
tice would require. Ex parte Lange, 18 Wall. , 168. If it had imposed a sen-
tence greater than that prescribed by law, it would vacate it and inflict
one in accord with the law. If no part of the invalid sentence imposed
had been executed, it could vacate it and inflict one different in kind or
degree. Ex parte Lange, 18 Wall., 163; Miller v. Finkle, 1 Park.C. C, 874,
and cases there cited.
In England it has been held that at the same term the judgment might
be altered, and by reason of subsequent conduct of the convicted person
the punishment be increased. Reg. v. Fitzgerald, 1 Salk., 401. And an-
other sentence has been given after a portion of the former one had been
Buffered. Rex v. Price, 6 East, 823. The judgment, as expressed in the
prevailing opinion (Ex parte Lange, supra), is not in accord with those
two cases, and we cite them without expression of approval or otherwise.
This was the subject-matter — the general matter then before the court.
The particular matter or question presented was the sentence of flne and
imprisonment passed upon the plaintiff. Was it erroneous and unlawful
in that it went beyond the limit of the law, he having been some days in
imprisonment under it, and having paid a sum of money equal in amount
to the fine to the clerk of the court, who in turn had paid it to an officer of
the United States government; was it lawful to vacate the sentence if in
excess of the law ; if that sentence should be vacated, was it lawful, under
the facts of the case, to impose another sentence which should be in accord
with the statute, — did all these things present a case for the exercise of
power, by virtue of the jurisdiction over the subject-matter? The court,
we have seen, had the jurisdiction last named; did it not also have the
jurisdiction to adjudicate upon that state of facts? If it did have it, and
did adjudicate erroneously, was it not a judicial error to be relieved from,
by such writ as would bring it up for review, rather than a wrong done
personally to be answered for in a civil action? Is not the person who filled
the office of judge, and by his presence on the bench made that court, free
from liability for that adjudication, though the act done by him was erro-
neous and unauthorized by law? It was held by this court in Rodergris v.
East River Savings Bank, 68 N. Y., 460, that when general jurisdiction is
given to a court of any subject, and that jurisdiction in any particular
case depends upon facts which must be brought before that court for its
determination upon the evidence, and when it is required to act upon such
evidence, its decision upon the question of jurisdiction is conclusive until
reversed, so far as it protects its officers and all other innocent persons
who act upon it. How does it differ when general jurisdiction is thus
given and depends upon the legal conclusion, from a conceded state of
facts, and when the court is required to act thereon and draw a conclusion
LIABILITY FOB FALSE DCPBISONMENT. 131
therefrom? Is not Uie adjudicaticm of this court conclusive until reversed
so as to protect? Is not the act of adjudication and the judgment given
thereon an act done with jurisdiction, hence a judicial act — an act done
as a judge or as a court? In Howell's Case there was no disputed ques-
tion of fact. It was upon a conceded st ate of facts that he acted.
He erred in his judgment of the effect in law of those facts ; yet it was
deemed a judicial error. It is true that the United States supreme court, *
upon a certain state of facts before it, and in a proceeding bj certiorari to
which this defendant was not a party, and in which he was not heard
by that court, reached the conclusion that the second sentence of the cir-
cuit court was pronounced without authority, and discharged the defend-
ant from his imprisonment thereunder. Ex parte Lange, 8Ti2>ra. In the
prevailing opinion given in the case are repeated expressions to the effect
that the power of the circuit court to punish, further than the first sen-
tence, was gone; that its power to punish for that offense was at an end
when the first sentence was inflicted, and the plaintiff had paid the $200
and laid in prison five days; that its power was exhausted ; that its future
exercise was prohibited ; that the power to render any further judgment did
not exist ; that its autliority was ended. It is claimed from these expres-
sions that the force of the decision in that case is that the defendant in
'pronouncing judgment in the second case upon the plaintiff did not act as
a judge. It is plausible to say that if an act, sought to be defended as a ju-
dicial act, has been pronounced without authority and void, it could not have
been judicially. But we have yet to learn that the eminent court which
used that language in adjudging upon the case made upon that writ would
hold that the defendant did not act as a judge in pronouncing the judg-
ment which was deemed without power to sustain it. The opinion also
says: "A judgment may be erroneous and not void; and it may bo
erroneous because it is void. The distinctions between void and void-
able judgments are very nice, and they may fall under the one case
or the other, aa they are regarded for different purposes,^* We do not
think that learned court would disregard the reasoning of Howell's Case,
supra, and others like unto it ; yet in Busheirs Case, supra, he was dis-
charged on a habeus corpus on the ground that Howell as judge had no
power or authority to fine or imprison him for the cause set up ; it was
called a "wrongful commitment" (1 Mod., 881, 892); and yet when
Howell was called to answer in a civil action for the act, it was held that
though without authority it was judicial. In Bushell's Case, 1 Mod., 119,
Hale, C. J., said: *' The habeus corpus and writ of error, though it doth
make the judgment void, does not make the ordering of the process void
to that purpose,'' t. e., of an action against the judge, '* and the matter .
was done in a court of justice." He continued, so is the comment on that
case (Yates v. Lansing, 5 J. R, 290): ** It had jurisdiction of the case be-
cause it had power to punish a misdemeanor in a juror, though in the case
before the court the recorder made an erroneous judgment in considering
the act of the juror as amounting to misdemeanor, when in fact it was no
misdemeanor." 2 Mod., 218.
So in Ackerly v. Parkinson, supra, the defendant was held protected
though the citation issued by him was considered as a nullity, on the
I I
132 LIABILITY TOB FALSE IKPSI80KMBKT.
PTound that the oourt had a general jarisdiction over the suhject-matter.
Let it be conceded at this point that the law is now declared that the act of
the defendant was without authority and was void; yet it was not so
plain as then to haVe been beyond the realm of judicial discussion, delib-
eration and consideration, as is apparent from the fact that four judges,
other than the defendant, acting as judges, had agreed with him in his
view of the law. He was, in fact, sitting in the place of justice; he was
at the very time of the act a court; he was bound by his duty to the pub-
lic and to the plaintiff to pass as such upon the question growing out of
the facts presented to him, and as a court to adjudge whether a case has
arisen in which it was the demand of the law that, on the vacating of the
unlawful and erroneous sentence or judgment of the court, another sen-
tence or judgment could be pronounced upon the plaintiff. So to adjudge
was a judicial act, done as a judge, as a court ; though the adjudication
was erroneous, and the act based upon it was without authority and void.
Where jurisdiction over the subject-matter is vested by law in the judge, or
in the court which he holds, the manner and extent in which the jurisdiction
shall be exercised are generally as much questions for his determination as
any other involved in the case ; although upon the correctness of his deter-
mination in those particulars the validity of his judgment may depend.
Ackerly v. Parkinson, suprcL For such an act a person acting as judge *
therein is not liable to civil or criminal action. The power to decide pro-
tects, though the decision be erroneous. See Garnett v. Farrand, 6 B. & C,
611. There is another view of this case. It is certain that the defendant,
as the circuit court, had at firat jurisdiction of the plaintiff, and jurisdio-
tion of the cause and the proceedings ; that jurisdiction continued to and
included the pronouncing of the first sentence; nay, until and including
the giving of the order vacating that sentence. If it be admitted that at
the instant of the utterance of that order jurisdiction ceased, as is claimed
by the plaintiff, on the strength of the opinion in £x parte Lange, supra,
as commented upon Kt parte Parks, 98 U. S. 18„ and that all subse-
quent to that was coram nonjudice and void, still it was so; not that the
court never had jurisdiction, but that the last act was in excess of its juris-
diction. Thus in the opinion (Ex parte Lange, supra, p. 165) it was said
that the facts very fairly raised the question whether the circuit court, in
the sentence which it pronounced, and under which the prisoner was held,
had not exceeded its powers. See, also, page 174. "We think that the
whole effect of the opinion is, not that the court had no jurisdiction, no
power over the prisoner and the case, but it had no authority to impose
further punishment. ** All further exercise of it in that direction was for-
bidden." Page 178. What is an act in excess of judicial authority is
shown by Clarke v. May, 2 Gray, 410. There a justice of the peace, hav-
ing jurisdiction of a case, summoned a person to appear before him as a
witness therein ; that person disobeyed. The case was tried and ended ;
thereafter the justice issued process to punish for contempt the person
summoned as a witness. He was arrested, fined, and, not paying, was com-
mitted. It was held that the power to punish was incidental to the power
to try the main case ; that when the latter was ended jurisdiction had
oeased, and the power to punish for contempt no longer existed, and that
LIABIUTT FOB FALSB IMPBISONHBin*. 13?
the proceedings had to that end were in excess of the jurisdiction, and the
justice was liable. And the distinction between a case where the magis-
trate acts with no jurisdiction at all, and one where his act is beyond or in
excess of his jurisdiction, is shown by the case last cited, and that of
Piper V. Pearson in the same volume, page 120.
The act of the defendant was thus one in excess of or beyond the juris-
diction of the court ; and though when courts of special and limited juris-
diction exceed their powers the whole proceeding is coram nonjvdioe and
void, and all concerned are liable, this has never been carried so far as to
justify an action against a judge of a superior ceurt or one of general
jurisdiction for an act done by him in a judicial capacity. Yates v. Lan-
sing, supra; Bradley v. Fisher, supra; Randall y. Brigham, 7 Wall., 628.
In the case last cited it is said of judges of superior courts: They are not
liable to civil actions for their judicial acts, even when such acts are in ex-
cess of their jurisdiction, unless perhaps they are done maliciously or cor-
ruptly. Pages 536, 587. And in other cases a distinction is observed and
insisted upon between excess of jurisdiction and a clear absence of all ju-
risdiction over the subject matter. And to the same effect is this: '*For
English judges, when they act wholly without jurisdiction, . • . have
no privilege." Per Parke, B., Calder v. Halkett, 8 Moore, P. C. C, 28, 75.
Now it may be conceded that the circuit court is not a court of general
jurisdiction ; that in a sense it is a court of limited and special jurisdiction
(Kempe's Lessee v. Kennedy, 5 Cranch, 173), inasmuch as it must look to
the acts of congress for the powers conferred. But it is not an inferior
court. It is not subordinate to all other courts in the same line of judicial
functions. It is of intermediate jurisdiction between the inferior and the
supreme court. It is a court of record ; one having attributes and exercis-
ing functions independently of the person of the magistrate designated
generally to hold it. Per Shaw, G. J., Ex parte Gladhill, 8 Mete, 168.
It proceeds according to the course of the common law ; it has power to
render final judgments and decrees which bind the persons and things be-
fore it, conclusively, in criminal as well as civil cases, unless reversed on
error or appeal. Grignon's Lessee v. Astor, 2 How. (IT. S.), 841. See Ex
parte Tobias Watkins, 8 Pet., 198. "Many cases are to be found wherein
it is stated generally that when an inferior court exceeds its jurisdiction
its proceedings are entirely void and afford no protection to the court, the
party or the officer who executes its process. I apprehend that it should
be qualified when the subject-matter of the suit is within the jurisdiction
of the court, and the alleged defect of jurisdiction arises from some other
cause." Per Marcy, J., Savacool v. Boughton, 5 Wend., 172. How much
more so when the court is not inferior? There are analogies in the law.
Take the case of the removal of a cause from the state court to the circuit
court of the United States. When the party petitioning for a removal has
presented his papers in due form and sufficiency to the state court, and has
in all respects complied with the terms of the act of congress, the state
court cannot refuse; though it does, all subsequent proceedings in it are
eoram non judice. See Fisk v. U. P. R. H. Co., 6 Blatch., 863; Matthews ▼.
Lyall, 6 McLean, 18. Though the judge of the state court had a legal dis-
cretion to exercise as to the right of removal (Ladd v. Tudor, 8 WoodU
134 LIABILITY FOB FALSE IMPBISONMENT.
^ M., 825\ if the facts entitle to a removal it may not be withheld, and
when they are shown It is the duty of the state oourt to proceed no further ;
each step after that is coram non judice, Gordon v. Longest, 16 Pet, 101.
Tet in case a judge did, in the honest exercise of his judgment, refuse a
removal and proceed with the case in the state court, would it be con-
tended that he was liable in a civil action? He had jurisdiction of the cause
originally; that jurisdiction had ceased. His future acts were beyond
or in excess of his jurisdiction. • . .
For these reasons we are of the opinion that the defendant is protected
by his judicial character from the action brought by the plaintiff. Judg^
ment affirmed. Lange v. Benedict, 73 N. Y., 12 (1878).
§31. Judges of inferior courts^ liable when. — The jnd^e
of an inferior court or court of limited jurisdiction, or a justice
of the peace, or magistrate exercising limited and inferior
powers, is as free to exercise his judicial judgment or discretion,
and is as exempt from liability for the exercise of his judicial
powers within the limits of his jurisdiction, as the judge of a
superior court or court of general jurisdiction, no matter how
mistaken or erroneous his judgment may be/ or how corrupt
or malicious his motives.* But unlike the judges of superior
courts, if he usurp jurisdiction when by law he has non«, or if
he act without jurisdiction of the person or subject-matter, or
if he exceed the limits of the jurisdiction lawfully conferred
upon him, he is liable in damages to the party injured, notwith-
standing he might have been acting in good faith and honestly
endeavoring to discharge his duty.'
§ 32. The test —The law stated by Bigelow^ J.—" One of
the leading purposes of every wise system of law is to secure a
fearless and impartial administration of justice, and at the
lEvarts V. Kiehl, 103 N. Y., 296 'Morill v. Thurston, 46 Vt, 782
(1886); Chickering v. Robinson, 8 (1874); Vaughn v. Congdon, 56 Vt.,
Cusb. (Mass.), 543(1849); Downing v. Ill, 48 Am. Rep., 758 (1883); Keiley
Herrick, 47 Me.. 463 (1859); BultUl v. Bern is, 4 Gray (Mass.), 83; 64 Am.
v. Clement, 16 B. Mon. (Ky.), 193 Dec, 50 (1855); Hendrick v. White-
(1855); Heard v. Harris, 68 Ala., 43 more, 105 Mass., 28 (1870); Yates v.
(1880); Bell v. McKinney, 63 Miss., Lansing, 5 Johns. (N. Y.), 283 (1810);
187 (1885); Hitch v. Lambright, 66 Palmer v. Carroll, 24 N. H., 814
Ga,, 228 (1880); Mangold v. Thorp, (1851); Craig v. Burnett, 82 Ala.,
88 N. J. L., 134 (1868). 728 (1858): Mechem on Public Offi-
« Hughs V. McCoy, 11 Colo., 591, cers, § 630 (1890); Haltzman v. Rob-
19 Pac. Rep., 674 (1888); Mangold v. inson, 3 McAr. (D. C), 520.
Thorp, 33 N. J. L., 134 (1868); Irion
▼. Lewis, 66 Ala., 190 (1876).
LIABILITY FOB FALSE IMFBISOXMENT. 135
£ame time to guard individuals against a wanton and oppress*
176 abuse of legal authority. To attain this end the common
law affords to all inferior tribunals and magistrates complete
protection in the discharge of their official functions, so long
as they act within the scope of their jurisdiction, however
false and erroneous may be the conclusions and judgments at
which they arrive; but, on the other hand, if they act without
any jurisdiction over the subject-matter, or if, having cogni-
zance of a cause, they are guilty of an excess of jurisdiction^
they are liable in damages to the party injured by such un-
authorized acts. In all cases, therefore, where the cause of
action against a judicial officer, exercising only a special and
limited authority, is founded on his acts done colore officii^
the simple inquiry is whether he has acted without any juris-
diction over the subject-matter or has been guilty of an excess
of jurisdiction. By this simple test his legal liability will at
once be determined. If a magistrate acts beyond the limits
of his jurisdiction, his proceedings are deemed to be coram
nonjudice and void; and if he attempts to enforce any pro-
cess founded on any judgment, sentence or conviction, in such
case he thereby becomes a trespasser.^
§ 33. Judicial oflBcers not liable for acts not in excess
of their jurisdiction. — It is a general rule of law, amply sus-
tained by authority and reason, that no civil action can be
maintained against a judicial officer for the recovery of dam-
ages by one claiming to have been injured by the officer's ju-
dicial action, when such action is within the scope of his juris-
diction. Such officers of the law are called upon to exercise
their judgment in the matters before them, and the law holds
their duty to the individual to be performed when they have
exercised such judgment, however erroneous or disastrous in
its consequences it may appear to be.*
§ 34. Tlie law stated by Cooley approved by Stallcup^ C —
" In Mr. Cooley's work on Torts, where the subject of immu-
jiity of judicial officers from private suits is treated, the law
iBigelow, J., in Piper v. Pearson, Johns. (N. Y.), 121 (1818); Bigelow v.
2 Gray (Mass.), 1!^0 (1854). Citing Stearns, 10 Johns., 89 (1822); AUen
1 Chit Pi. (6th Am. ed.), 90, 20^ t. Gray, 11 Conn., 95 (1886).
£18; Beaurain y. Scott, 8 Camp., > Mechem on Public Officers, § 61S^
3S8; Ackerly v. Parkinson, 8 M. & (1890).
43., 425, 428; Borden y. Fitch, 15
136 LIABILITY FOB FALSE IMPSISOITMENT.
IS stated as follows: * Whenever, therefore, the state confers^
judicial powers upon an individual, it confers with them full
immunity from private suits. In effect the state says to the
officer that these duties are confided to his judgment; that he
is to exercise his judgment fully, freely, and without favor,
and be may exercise it without fear; that the duties concern
individuals, but they concern more especially the welfare of
the state, and the peace and happiness of society ; that if he
shall fail in a faithful discharge of them, he shall be called ta
account as a criminal; but in order that he may not be an-
noyed, disturbed and impeded in the performance of these
high functions, a dissatisfied individual shall not be suffered
to call in question his official action in a suit for damages."' ^
§ 35. Dlscasslon of the subject. — Of the judge it is said:
*' His doing justice as between particular individuals, when
they have a controversy before him, is not the end and ob-
ject w^hich were in view when his court was created and he
was selected to preside over or sit in it. Courts are created
on public grounds; they are to do justice as between suitors-
to the end that order may prevail in the political society, and
that rights may be protected and preserved. The duty is
public, and the end to be accomplished is public; the indi-
vidual advantage or loss results from the proper and thorough
or improper and imperfect performance of a duty for which
his controversey is only the occasion. The judge performs-
his duty to the public by doing justice between individuals,
or, if he fails to do justice as between individuals, he may be
called to account by the state, in such form and before such
tribunal as the law maj^ have provided. But as the duty neg-
lected is not a duty to the individual, civil redress as for an.
individual injury is not admissible."*
§ 36. Reasons for the rule. — 1. One of the necessary re-
sults of holding a judge liable in such cases would be to
occupy his time and mind with the defense of his own inter-
ests when he should be giving them up wholly to his public
duties.
iStallcup, a. in Hughs V. McCoy, »Cooley on Torts (let ed.), 880
11 Colo., 591 (1888); Cooloy on Torts (1870); Mechem on Public Officersi.
(let ed.). 408; Johnson v. Moorman, § 019 (1890).
80 Va., 131(1886).
UABILrnr fob false DCPBISOimCENT. 137
2. Another resalt would be that of patting the judge on
trial as a wrong-doer, and necessarily lowering him and his
ofiSce in the public estimation and esteem.
8. An adjudication against him would lessen the weight of
his subsequent decisions.
4. The civil responsibility of the judge would often be an
incentive to dishonest, instead of honest, judgment, and would
invite him to consult public opinion and public prejudices,
when he ought to be wholly above and uninfluenced by them.
5. Such civil responsibility would constitute a serious ob-
struction to justice. It would render essential a large increase
of the judicial force, not only as it would multiply litigation,
but would open each case to endless controversy.
6. Judicial offices would never be accepted by any man of
standing, reputation or financial worth, ^' if, at the peril of his
fortune, he must justify his judgments to the satisfaction of a
jury summoned by a dissatisfied litigant to renew them." ^
§ 37. The law stated by Shaw, G. J.— It is a principle
lying at the foundation of all well-ordered jurisprudence that
every judge, whether of a higher or lower court, exercising
the jurisdiction vested in him by law, and deciding upon the
rights of others, should act upon his own free, unbiased con-
victions, uninfluenced by any apprehension of coqsequences.
It is with a view to his qualifications for this duty, as well
in regard to his firmness as to his intelligence and impartial-
ity, that he ought to be selected by the appointing power. He
is not bound, at the peril of an action for damages, or of a
personal controversy, to decide aright in matters either of law
or of fact, but to decide according to his own convictions of
right, of which his recorded judgment is the best, and must
be taken to be conclusive, evidence. Such, of necessity, is the
nature of the trust assumed by all on whom judicial power, in
greater or lesser measure, is conferred. The trust is fulfilled
when he honestly decides according to the conclusions of his
own mind in a given case, although there may be great con-
flict of evidence, great doubts of the law, and when another
mind might honestly come to a different conclusion. But in
a controverted case, however slight may be the preponderance
1 Cooley on Torts (Ist ed.), 406, 408 ; Mechem on Public Officers, g 620 (1890)i
138 LIABILITT VOR FALSE iMPfilSONMEKT.
in one scale, it mast lead to a decision as conclasive as if the
weight were all in that scale. I^ow it is manifest that to
every controversy there are two sides, and that a decision in
favor of one must be against another, and this may extend to
every interest which men hold most dear; to property, repu-
tation, and liberty, civil and social; to political and religious
privileges, to all that makes life desirable and to life itself. If
an action might be brought against the judge by a party feel-
ing himself aggrieved, the judge would be compelled to put
in issue facts in which he has no interest, and the case must
be tried before some other judge, who, in his turn, might be
held amenable to the losing party, and so on indefinitely. The
general principle which excepts judges from answering in a
private action, as for a tort, for any judgment given in the
due course of administration of justice, seems to be too well
settled to require discussion." ^
§ 38. The oflBcer mast act in his official capacity. — It is
indispensable to this exemption that the officer shall have as-
sumed to act as such by virtue of the authority vested in him
by law. For his own private acts he is responsible as other
private persons; there his official character affords him no
protection.*
Applications of the law. —
A mayor as peace officer not liable for ordering arrest^ when.
Johnson was mayor of DanviHe, Ya., an officer under the laws of that
state endowed with judicial powers. On the evening of August 11, 1882,
there was a political meeting held at Danville at which there appears to
have been considerable enthusiasm. After the meeting was dismissed the
mayor and several other persons, among whom was a man by the name
of Moorman, repaired to a neighboring saloon and all took a drink of beer.
A song was then sung in which both the mayor and Mr. Moorman joined,
and some of the party danced, but there was nothing disorderly about the
affair. Shortly afterwards, however, a row occurred between a man named
Wilkinson and one by the name of Boney, in which Wilkinson was the ag-
gressor, and the mayor, acting in his official capacity, forcibly ejected the
mau Wilkinson from the room for disorderly conduct. During the dis-
turbance the barkeeper said : '* Gentlemen, you must become quiet, or I
will call a policeman ; " to which Johnson replied : ** I am the mayor and
iShaw, C. J., in Pratt v. Gardner, (1890); Lange v. Benedict, 8 Hun«
2 Gush. (Mass.), 63 (1848). 862; 78 N. Y., 12; 29 Am. Rep., 86
2 Mechem on Public Officers. § 623 (1878).
UABILnT FOB FAL8B IMPBI80NMENT. 139
I command the peace." After Wilkinson's ejectment, Moorman went to
where the mayor and Wilkinson were, Wilkinson having become quiet, and
addressing Wilkinson, said: "Captain John Boney (the man who raised
the disturbance with Wilkinson) is in the bar and afraid to come out and
go home; he is unarmed, and he does not wish to be attacked unprepared."
Wilkinson replied : " Tell him to come out and go home, that I aui no
damned assassin." Then Moorman said: " He says he will meet you to-
morrow and settle the matter.'' Wilkinson replied: ** I will meet him any
time and anywhere;" to which Moorman responded: **You are both
drunk to-night, and to-morrow there will be nothing of it. I don't know
that he wants to fight you at all." And then Wilkinson said : '* I am not
drunk ; I have not taken a drink for five hours." Mayor Johnson, address-
ing Moorman, then said: '*Go away from here! I am mayor and I in-
tend to settle this matter, and if you don't go away I will send you to jail ; "
to which Moorman replied : " Mayor Johnson, I recognize you as mayor,
but I have done nothing for which to be sent away." The mayor then
said to a policeman: "Take that man to jail!" Moorman then said:
** Well, if you say so, I must submit," and started off with the police-
man, who, in pursuance of the mayor's order, had arrested him ; but after
proceeding a few steps asked to be allowed to return, which being per-
mitted, he said in a quiet and peaceable manner: ** Mayor Johnson, I have
done nothing, and demand a trial or to be allowed to give bail," to which
the mayor replied angrily : *' Damn it, take him to jail." The policeman
then took him into that part of the jail building occupied as the jailor's
room and delivered him into the custody of the jailor, who took the keys
and was proceeding to carry him into the cells, when Moorman requested
permission to write a letter to his employer. While they were looking for
pen and paper, a policeman came with an order for his release. Moorman
then brought an action against Johnson for false imprisonment. In his de-
fense Johnson filed four special pleas, to the efifect that at the time of the
alleged false imprisonment he was the duly elected and qualified mayor of
the town of Danville, and in virtue thereof a justice and conservator of
the peace, etc., and that in the discharge of his duties as such ofiicial and
in order to restore the peace and good order, etc., and without any malice
or ill-will whatever against the plaintifl", he caused him tQ be arrested
while engaged in sundry violations of laws particularly designated in said
pleas. On the trial it appeared that, while the mayor was trying to eject
Wilkinson, Moorman caught hold of him, but as to how far he resisted him,
if at all, did not appear. The court refused to instruct the jury *' that any
judicial officer is exempt from liability in damages for his actions in mat-
ters within his jurisdiction, even though his judgment and actions based
thereon should prove to be erroneous." The jury returned a verdict for
$2,000, upon which judgment was entered, and the defendant procured a
writ of error.
In reversing the judgment, Richardson, J., said: *' It cannot be doubted
that this instruction correctly propounds the law." After reviewing the
Authorities, etc, the judge continues: "The doctrine remains unshaken
that all judicial officers, whether inferior or superior in grade, are, when
acting within their jurisdiction, exempt from liability in civil actions for
140 LIABIUTY FOB FALSB IMPBISONMBNT.
their judicial acta, though alleged to have been done maliciously or cor-
ruptly ; the judges of courts of superior, general jurisdiction, though act-
ing in excess of this jurisdiction, and although such acts be alleged to have
been malicious or corrupt, are not so liable, except where there is a clear
absence of all authority as contradistinguished from mere excess of au-
thority; acts in the clear absence of all jurisdiction being usurpations
and inexcusable. But with regard to judicial officers of inferior jurisdic-
tion the doctrine is that they must keep within their jurisdictions and are
liable to civil actions for acts done in excess thereof, especially if such act»
be prompted by malicious or corrupt motives. ... To the case at
bar certainly the principle of law propounded by that instruction is ex-
pressly applicable. Johnson was mayor and ex officio a justice of the
peace. In Virginia, with very few exceptions, the functions of a justice
of the peace are judicial in character. 1 Minor's Ins., 108. When a jus-
tice considers a case upon the law, and decides it, however the case is pre-
sented to him, whether formally or informally, whether it be civil or
criminal, whether he decides upon the testimony of sworn witnesses or
upon the evidence of his own senses, he acts judicially, and he that exe-
cutes his decision acts ministerially. The fact that a judge or justice some-
times acts ministerially makes him none the less a judicial officer. At all
events the case here exhibited in the proceedings and facts certified would
fully warrant any tribunal in arriving at the conclusion that Johnson, on
the occasion of the arrest of Moorman, acted in his judicial capacity. Nor
is there any evidence that he acted through personal spite or maliciously."
Judgment reversed. Johnson v. Moorman, 80 Va., 131 (1885).
§ 39. The oflBcer mnst act within his jurisdiction. — The
judicial officer must not only have jurisdiction of the person
of the parties to, and the subject-matter of, the controversy,
but his action must be confined within that jurisdiction. The
act for which the officer may claim immunity must be done
while he is acting as a judicial officer in his judicial capacity
and within his jurisdiction.^
§ 40. Immunity from liability not affected by Improper
motives. — The immunity from civil liability is not affected
by the motives with which judicial officers perform their
duties. If a judicial officer is corrupt, the public has its rem-
edy', but the unfortunate suitor has none. He cannot be per-
mitted to obtain redress because the judgment against him
was the result of corrupt or malicious motives.*
iLange v. Benedict. 8 Hun, 862; Devendorf, 8 Denio (N. Y.), IIT
73N. Y.. 12; 29 Am. Rep.,80(1878> (1846): Pratt v. Gardner, 8 Cush.
2Bradley v. Fisher, 13 Wall. (U. S.). (Mass.). 63; 48 Am. Rep., 653 (1848);
835 (1871); Floyd v. Barker, 12 Coke, Stone v. Graves, 8 Mo., 148; 40 Am.
25; Rains v. Simpson, 50 Tex., 495; Dec, 131 (1843); Johnson v. Moor-
82 Am. Rep., 603 (1878); Weaver v. man, 80 Va., 181 (1885); Henke v.
LIABILITY FOB FALSE IMFBISOmCEITT. 141
§ 41. Reasons for the rule stated by Mr. Justiee Field. —
•** Controversies involving not merely great pecuniary interests
but the liberties and character of the parties, and conse-
quently exciting the deepest feelings, are being constantly
determined by the courts, in which there is great conflict in
the evidence and great doubt as to the law which should gov-
ern their decision. It is this class of cases which imposes upon
the judge the severest labor, and often creates in his mind a
painful sense of responsibility. Yet it is precisely in this class
of cases that the losing party feels most keenly the decision
against him and most readily accepts anything but the sound-
ness of the decision in explanation of the action of the judge.
Just in proportion to the strength of his convictions of the
correctness of his own view of the case is he apt to complain
of the judgment against him, and, from complaints of the
judgment, to pass to the ascription of improper motives to the
judge. When the controversy invokes questions affecting
large amounts of property, or relates to a matter of general
public concern, or touches the interests of numerous parties,
the disappointment occasioned by an adverse decision often
finds vent in imputations of this character, and, from the im-
perfection of human nature, this is hardly a subject of wonder.
If civil actions could be maintained in such cases against the
judge, because the losing party should see fit to allege in his
complaint that the acts of the judge were done with partial-
ity, or maliciously or corruptly, the protection essential to
judicial independence would be entirely swept away. Few
persons sufficiently irritated to institute an action against a
judge for his judicial acts would hesitate to ascribe any char-
acter to the acts which would be essential to the maintenance
of the action. If upon such allegations a judge could be com-
pelled to answer in a civil action for his judicial acts, not only
would his office be degraded and his usefulness destroj'ed, but
he would be subjected for his protection to the necessity of
McCord. 55 Iowa, 878 (1880); Heard Moore, 4 N. J. L., 74; 7 Am. Dec,
▼. Harris. 68 Ala.. 43 (1880) ; Evans v. 574 (1818) ; Barnardiston v. Soame, 1
Foster, 1 N. H., 877 (1819); Barhyte East, 566, n.; Slowball v. Anson,
V. Shepherd, 85 N. Y., 242 (1866); Comb., 116; Gamett v. Ferrard, 6
Jordan v. Hansen, 49 N. H., 202; B. & C, 611.
6 Am. Bep., 508 (1870); Little v.
142 LIABILITY FOB FAL6B IMPBISONMBNT.
preserving a complete record of all the evidence produced be-
fore him in every litigated case and of the authorities cited
and arguments presented, in order that he might be able to
show to the judge before whom he might be summoned by
the losing party — and the judge perhaps one of an inferior
jurisdiction — that he decided as he did with judicial integ-
rity; and the second judge would be subjected to a similar
burden as he in his turn might also be held amenable by the
losing party." ^
§ 42. Jurisdiction — The term defined. — Jurisdiction is de-
fined as the authority of law to act oflBcially in a matter before
a judicial officer.* It is —
(1) Jtirisdiction of the person^ when the person acted upon
is before the judicial officer, either constructively or in fact,
by reason of the service upon him of legal process or by his
voluntary appearance.'
(2) Jurisdiction of the Buhject-matier^ when the judicial offi-
cer possesses the power legally conferred upon him by law
to act upon the subject-matter in controversy — the matter in-
volved in the action.*
§ 43. What jurisdiction is essential to immunity. — It is
essential to this immunity from civil liability that the act
done by the judicial officer must have been done in a matter
within his jurisdiction. When the officer assumes to act, ho
must have judicial jurisdiction both of the person and sub-
ject-matter of the controversj\*
§ 44. Jurisdiction must be legally acquired.— If a court of
limited jurisdiction issue process which is illegal, or if a court,,
1 Justice Field in Bradley v. 53 Vt.. 879 (1881); Hitch v. Lam-
Fisher, 13 Wall. (U. S.), 835 (1871). bright, 66 Ga., 228 (1880); Truesdell
2Ck)oley on Torts (Ist ed.), 417 v. Combs, 83 C)hio St., 186 (1877);
(1879); Mechem on Public Officers, Patzock v. Von Qerichten, 10 Mo.
g 625 (1890). App., 424 (1881); Mangold v. Thorp,.
'Cooper V. Reynolds, 10 Wall. 83 N. J. L.. 134 (1868); Bullett v.
(U. S.), 308, 316 ; Lange v. Benedict, 8 Clement 16 B. Mon- (Ky.), 193 (1855) ;
Hun, 362; 73 N. Y., 13; 29 Am. Rep., Reid v. Hord, 2 N. & McC. (S. C),
80 (1878). 168; 10 Am. Dec^, 582 (1819); Hol-
*Hunt V. Hunt, 9 Hun, 622; 72 comb v. Cornish, 8 Conn., 875 (1881);
N.Y. 217; 28 Am. Rep., 129(1878). Dowping v. Herrick, 47 Me., 462
5 Wright V. Rouss, 18 Neb., 234 (1859); BIythe v. Tompkins, 2 Abb.
(1885); Estopinal v. Peyromp, 87 La. (N. Y.) Pr., 468 (1856); Chickering v.
Ann., 477 (1885); Kibling v. Clark, Robinson, 8 Cush. (Mass.), 543(1849);
LIABILITY FOB FALSB IMPBISONMENT. 143
irhetber its jurisdiction be limited or not, holds cognizance of
a cause without having gained jurisdiction of the person of
the defendant by having him before it in the manner required
by law, the proceedings are void. Spencer, C. J. : "I consider
it perfectly well settled that to justify an inferior magistrate
in committing a person he must have jurisdiction, not onl}' of
the subject-matter of the complaint, but also of the process
and the person of the defendant." ^
§ 45. Distinction between superior and inferior courts
acting within tlieir jurisdiction — The law stated by Rich-
ardson^ J. — '^ The doctrine remains unshaken that all judicial
ofScers, whether inferior or superior in grade, are, when act-
ing within their jurisdiction, exempt from liability in civil ac-
tions for their judicial acts, though alleged to have been done
maliciously or corruptly ; that judges of courts of superior, gen-
eral jurisdiction, though acting in excess of their jurisdiction,
and although such acts be alleged to have been malicious or
corrupt, are not liable except where there is a clear absence
of all authority as contradistinguished from mere excess of
authority; acts in the clear absence of all jurisdiction being
usurpations and inexcusable. But with regard to judicial offi-
cers of inferior, limited jurisdiction, the doctrine is that they
must keep within their jurisdiction, and are liable to a civil .
action for acts done in excess thereof, especially if such acts
be prompted by malicious or corrupt motives."'
§ 46. The rule applies to all judicial officers.— The rule
as laid down by Cooley applies to large classes of officers, em-
bracing some the powers attached to which are very exten-
sive, and others whose authority is very limited. It applies
to the highest judge in the state or nation, but it applies also
to the lowest officer who sits as a court and tries petty causes.
There are cases which seem to hold that a justice of the peace
is civilly responsible when he acts maliciously or corruptly ; but
Judge Cooley, after a careful analysis of a long line of au-
thorities from the time of Lord Coke, says : " There are dicta
Lange v. Benedict, 8 Hun, 862; 73 ' Richardson, J., in Johnson v.
N.Y., 12; 29 Am. Rep., 80(1878). Moorman, SO Va., 181(1885); Randall
iBigelow V. Stearns, 19 Johns., 8 v. Brigham. 7 Wall. (U. S.), 623
(1821); Reynolds v. Orvis, 7 Cow., (1868); Bradley v. Fisher, 13 WalL
269 (1827), (U. S.), 836 (1871).
144 LXABILITT FOB FAL8B DCPBISONMENT.
in some cases that a justice is civilly responsible when he acts
maliciously and corruptly, but they are not well founded, and
the express decisions are against them." ^
§ 47. The doctrine stated by Chief Baron Kelly.—'' This
dbctrine has been applied not only to the superior courts, but
to the court of a coroner and to a court-martial, which is not
a court of record. It is essential in all courts that the judges
who are appointed to administer the law should be permitted
to administer it under the protection of the law, independ-
ently and freely, without favor and without fear. This pro-
vision is not for the protection or benefit of a malicious or
corrupt judge, but for the benefit of the public, whose interest
it is that the judges should be at liberty to exercise their func-
tions with independence and without fear of consequences." '
§ 48. Jnrisdiction when presumed and when not — Sa«
perior and inferior conrts. — There is a marked distinction
in law between superior courts or courts of general jurisdic-
tion and inferior courts or courts of limited jurisdiction. In
regard to superior courts it is a presumption of law that
they never act without jurisdiction, and the burden of show-
ing wherein the lack of jurisdiction consists is cast upon him
who assails it.' But in regard to inferior courts, no such
presumption exists; their jurisdiction must be made to appear,
^nd that by the record itself. Whoever relies upon the judg-
ment of an inferior court must establish every fact necessary
to give it jurisdiction.*
In determining the liability of the police officer who has
erroneously assumed jurisdiction, or who has erroneously
1 Coolej on Torts, 408, 409, 410 barj, 20 Ohio, 844; 56 Am. Dec, 459
(1879). (1861); Gay v. Uoyd, 1 Greene
^ Scott T. Stansfield, 8 L. R., Ex., (Iowa), 78; 46 Am. Dec, 499(1847);
220 (1868). Palmer v. Oakley, 2 Doug. (Mich.)^
'Reynolds v. Stansbury, 20 Ohio, 483; 47 Am. Dea, 41 (1847); RoBsiter
844;56Am. Dec.,459(1851);Kenney v. Peck, 8 Gray (Masa), 689(1855);
V. Greer, 18 lU., 432(1851); Lowry v. Case v. Wooly, 6 Dana (Ky.), 17; 83
Irwin, 6 Rob. (La.), 192;89 Am. Dec, Am. Dec., 51 (1837); Bloom t. Bur^
556 (1848); Palmer v. Oakley, 2 dick, 1 Hili (N. Y.), 180 (1841); Me-
Doug. (Mich.), 433; 47 Am. Dec 41 chem on Public Officers, §627(1890);
(1847): Mechemon Public Officers, Kenney v. Grier, 13111., 482; 54 Am.
g 627 (1800). Dec., 489 (1851); Levy v. Shurman,
«Tuckerv. Harris, 13Ga., 1;58 Am. 6 Ark., 182; 42 Am. Dec, 690 (1845).
Dec., 488 (1851); Reynolds v. Stans-
LIABILITT FOR FALSE IMPRISONMENT. 145.
decided that the power to do a certain act is within the juris-
diction conferred upon him, this distinction frequently becomes
of great importance.
§49, Superior conrts — Jurisdiction, when presumed. —
It is a general and well settled proposition of law that the
proceeding of courts of general jurisdiction are presumed to
be regular and within the scope of their authority. It is said
that nothing shall be intended to be out of the jurisdiction of
a superior court but that which specially appears to be so.*
A court of general jurisdiction is presumed to have jurisdic-
tion to give the judgments it renders until the contrary is
made to appear. This presumption embraces not only juris-
diction of the subject-matter of the controversy, but of the par-
ties also. The jurisdiction of the court over the subject-matter
must be determined by the law creating the court and declar-
ing its powers, but jurisdiction over the person of the par-
ties to the controversy should appear from the record. If,
however, the former exists the latter will be presumed.*
§ 50, What is a superior court. — A superior court is one
invested with common-law jurisdiction, at law or in equity,
duly exercising such jurisdiction.' In this rule are included
all courts of the common law and those created by statute
having a common-law jurisdiction, courts of chancery, courts
of probate and county courts in some states.* A court with
general jurisdiction is not an inferior court under the rule, bie-
cause an appeal may be taken from its decisions to a higher
tribunal. In the appellate court the presumption is always
in favor of the regularity of the court from which the appeal
is taken, and this presumption must be removed by competent
proof before the proceedings will bo reversed.*
§ 51. Inferior courts— Jurisdiction never presumed.— It
is said that nothing is intended to be within the jurisdiction of
an inferior court but what is specially alleged. As to these
» Reynolds v. Stansbury, 20 Ohio, 148 (1856); Galpin v. Page^ 18 Wall,
844; 65 Am. Dec. 459 (1851); State 850(1873).
▼. Lewis, 22 N. J. L.. 604 (1849): » Harvey v. Tyler, 2 WaU., 828
Davis V. Hvidson, 29 Minn., 28 (1881) ; (1864).
R?ad V. VaughD. 16 Mo., 141(1851); ^Hawes on Jurisdiction, § 258
Hawes on Jurisdiction, § 257 (1886). (1886).
*Hawes on Jurisdiction, § 257 » State v. Parish, 23 Miss., 488
(ISSCj ; Ooulding v. Clark, 34 N. H., (1852^
10
146 LIABILITY FOB FALSE IKPBISONHEHT.
courts there is no presumption of law in favor of their juris-
diction. It must affirmatively appear by sufficient evidence
or proper averment in the record or their judgments will be
deemed void on their face.^
§52. What is an inferior conrt. — Within this meaning
an inferior court is one with only a limited jurisdiction and
acting not according to the course of the common law. It is
sometimes called a court not of record.*
§ 53. The law stated by Mr. Justice Field.— '< It is undoubt-
edlj^ true that a superior court of general jurisdiction, proceed-
ing within the general scope of its powers, is presumed to act
rightly. All intendments of law in such cases are in favor of
its acts. It is presumed to have jurisdiction to give the judg-
ments it renders until the contrary appears, and this presiiYnp-
tion embraces jurisdiction not only of the cause or subject-
matter of the action in which the judgment is given, but of
the parties also. The former will generally appear from the
character of the judgment, and will be determined by the law
creating the court or prescribing its general powers. The
latter should regularly appear by evidence in the record of
service of process upon the defendant or his appearance in the
action. But when the former exists; the latter will be pre-
sumed. This is familiar law, and is asserted by all the ad-
judged cases. The rule is different with respect to courts of
special and limited authority; as to them there is no pre-
sumption of law in favor of their jurisdiction. That must af-
firmatively appear by sufficient evidence or proper averment
in the record, or their judgments will be deemed void on their
face." •
§ 54. Inferior conrts — Justices of the peace — Jurisdic-
tion never presumed. — The jurisdiction of justices of the
peace is of limited extent and nothing is ever presumed in its
favor. Their authority is all derived from the various statu-
tory provisions of the jurisdictions under which they reside,
1 Dick ▼. Wilson. 10 Or.. 490 (1882) ; « Hahn v. KeUy, 84 Cal.. 891 (1868) ;
Jackson v. New M. B. Co., 84 Ck)nn.. Grignon v. Astor. 2 How.. 819(1844).
266 (1867); Victor M. & M. Ck). v. 'Field. J., in Galpin v. Page, 18
Justice's Court, 4 West. C. Rep., 299 ; WaU., 850 (1878).
Harvey y. Tyler. 2 Wall., 828 ; Hawea
on Jurisdiction, § 258 (1886).
LIABILITY FOE FiXSB IMPEISONMENT. 147
and they have no power beyond what is in that way conferred
upon them.^ In general they must execute their oflSce within
the bounds of the counties or jurisdictions in and for which
they are severally elected or appointed, and they cannot reg-
ularly or legally do any judicial act in other places.* The
particular instances in which other and different provisions
are speciall}^ made to enable them to perform extra-judicial
act or acts outside of their ordinary territorial jurisdictions
evince very distinctly that in all other cases the legal pro-
cesses which they issue have force and are to be executed only
within their respective counties or jurisdictions. There would
be no occasion for any such special provision if the authority
of a justice of the peace extended beyond his county and
through the state; and ic is a fair and necessary implication
from it, that all other processes have no such extent, but run
only in the county where the justice from whom it emanates
resides.'
§ 55. Jadges of inferior conrts^ when not liable for act-
ing withont jurisdiction. — It is undoubtedly true that judges
and magistrates cannot be held liable in trespass for acting
without jurisdiction, or for exceeding the limits of their au-
thority, where the defect or want of jurisdiction is occasioned
by some facts or circumstances applicable to a particular case,
of which the judge or magistrate had neither knowledge nor
the means of knowledge. In other words, if the want of
jurisdiction over a particular case is caused by matters of fact,
it must be made to appear that they were known, or ought to
have been known, to the judge or magistrate, in order to hold
him liable for acts done without jurisdiction; otherwise the
maxim ignorantia facti exousat applies.*
§ 66. The common law affords to all Inferior tribunals
and magistrates complete protection^ when. — One of the
leading purposes of every wise system of law is to secure a
^TiHey v. Damon, 65 Mass., 248 'Tilley v. Damon, 65 Mass., 248
(185»); Bridge v. Ford, 4 Mass., 641 (1853).
(1808): Com. v. Leach, 1 Mass., 59 « Clark & Whipple v. May & Kent,
(1804); Fisher v. Shattuck, 84 Mass., 68 Mass., 412 (1854); Pike v. Carter,
252. 8 Bing., 78; 10 Moore, 876 ( );
2 2 Hale's Pleas of the Crown, 50; Lowther v. Earl of Radnor, 8 East,
Bacon's Abridgment, Tit. "Justice 118 ( ^);Calder v. Halket, SMoore,
of Peace ; " Tilley v. Damon, 65 Mass., C. P., 77 ( ).
248 (1858).
148 LIABILITY rOB FAL8B IHPRISOKHBNT.
fearless and impartial administration of justice, and at the
same time to guard individuals against a wanton and oppress-
ive abuse of legal authority. To attain *this end, the common
law affords to all inferior tribunals and magistrates complete
protection in the discharge of their official functions, so long
as they act within the scope of their jurisdiction, however
false and erroneous may be the conclusions and judgments
at which they may arrive. But on the other hand, if they act
without any jurisdiction over the subject-matter, or if, having
cognizance of the cause, they are guilty of an excess of juris-
diction, they are liable in damages to the party injured by
such unauthorized acts. In all cases, therefore, where the
cause of action against a judicial officer, exercising only a
special and limited authority, is founded on his acts done
colore officii^ the single inquiry is whether he has acted with-
out any jurisdiction over the subject-matter, or has been guilty
of an excess of jurisdiction. By this simple test, his legal
liability will at once be determined.^ If a magistrate acts be-
yond the limits of his jurisdiction, his proceedings are deemed
to be coram non judice and void; and if he attempts to en-
force any process founded on any judgment, sentence or con-
viction in such case, he thereby becomes a trespasser.'
An ILLIJSTBATION. —
Sufficiency of complaint and warrant
In May, 1886, Neall purchased of Albion W. Hart a quantity of curbing
stone. Neall took posseesion, but failed to pay for the curbing according to
agreement, and Hart made a complaint before Charles M. Griffith, a justice
of the peace, charging '* that Neall by misrepresentation and trickery bad
defrauded him in the sale of curbing stone, and had appropriated the
aame to his own use." Upon this complaint the justice issued a warrant
charging Neali with *' defrauding him (Hart) of moneys due for labor and
stone.*' On the next day Neall was arrested and in default of bail com-
mitted to jail. In the evening he was discharged by the court of common
pleas because the complaint and warrant charged no offense known to the
1 Piper V. Pearson, 68 Mass., 120 89(1821); Allen v. Gray, 11 Conn.,
(1854); 1 Chit. PL (6th Am. ed.), 95 ( ).
90, 209-218; Beaurain v. Scott, 8 « Piper v. Pearson, 68 Mass., 120
Campb., 888 ( ); Ackerley ▼. (1854); 1 Chit. PL, 210; Bigelow ▼.
Parkinson, 8 M. <fi: S., 425, 428 ( ); Stearns, 19 Johns., 89 (1821); Clarke
Borden v. Fitch, 15 Johns., 121 v. May, 68 Mass., 410 (1854X
(1818); Bigelow V. Steams, 19 Johns.,
LIABILITT FOB FALSE DiPBISONKSNT. 149
criminal law. Nothing further was done in the matter. Neall brought an
action against Hart and Griffith for false imprisonment. He was beaten
on the trial and brought a writ of error, assigning the admission of certain
testimony and the charge of tlie court.
In delivering the opinion of the supreme court Gordon, J., said:
" 1. Was the court right when it said to the jury : ' The next question
for you to determine is whether there were such circumstances surround-
ing the transaction as warranted the prosecutor in making the complaint to
the justice in issuing the warrant of arrest, thus placing the plaintiff in the
position of a criminal?' We are constrained to answer this interrogatory
in the affirmative. A justice of the peace is not to be presumed to be
learned in legal technicalities ; hence, if the information set out a cheat of
any kind, it was sufficient on which to ground a warrant. But that in-
formation alleged that ' James E. Neall, by misrepresentation and trickery,
has defrauded me in the sale of curbing, and has appropriated the same to
his own use.* This charge as here set forth is not very definite, forasmuch
as it is difficult to say whether it was intended to charge embezzlement or
obtaining goods on false pretenses; but that a cheat of some kind is thereby
charged, no one, we think, will deny ; and if so, it was sufficient to warrant
the justice's action, and it was the business of the prosecuting officer, when
the case reached his hands, to determine what should be the character of
the indictment.
**2. Was the court right in its instruction to the jury that, if the stones
were to be paid for in cash before removal, they continued the property of
Hart, though Neall had possessed himself of them, and their sale by the
latter, and appropriation of the money arising therefrom to his own use,
would constitute such a fraud as justified Hart in making the complaint
on which the warrant issued? This, in effect, raises the question of prob-
able cause, which, as we think, was properly submitted. If the testimony
of Hart and J. W. Morgan is to be believed, there was such cause for the
prosecution, if nothing more. The plaintiff obtained a delivery of the
curbing on the cars under a contract to pay when so delivered, and then,
taking advantage of the defendant's performance, he shipped the curbing
to market, under the pretense that he would pay the next day ; but, in*
stead of so doing, he sold the curbing and refused payment altogether.
Let it be that this was not embezzlement in its technical sense, yet were
the prosecutor's goods gotten under pretense of a contract and through a
lie. In the case of Com. v. Burdick, 2 Pa. St., 168, Mr. Chief Justice Gib-
son makes use of the following language : ' But I think it at least doubtful
whether a naked lie, by which credit has been gained, would not, in every
case, be deemed within our statute, which declares it a cheat to obtain
money or goods " by any false pretenses whatsoever.^^ ' If, then, so great a
jurist was inclined to the opinion that a deliberate lie would support an
indictment charging a false pretense under our statute, we may well ex-
cuse a layman and a country justice for coming to a like conclusion. In
other words, on the strength of such authority, we may well conclude
that Hart and Griffith had probable, if not actual, cause for what they
did. The judgment is affirmed." Neall v. Hart, 115 Pa. St., 347; 8 Atl.
Rep., 629 (1887).
150 LIABILITY FOB FiXSS DiPBISONMSirr.
§ 57. Liability of judges of inferior courts in cases of
doabtfnl jnrisdiction. — All judges of inferior courts, includ-
ing justices of the peace and other magistrates, are liable for
jurisdiction wrongfully assumed in doubtful cases, or for pro-
ceeding without jurisdiction, even though called upon to decide
whether the. preliminary complaint or aflSdavit was sufficient
to confer jurisdiction, and though they acted honestly and in
good faith in deciding that they were.^ In speaking of the rule
as announced in the text, Mechem in his treatise on Public Offi-
cers says: "This doctrine has, however, met with much
forcible and reasonable dissent in recent times. There are
undoubtedly cases in which the rule stated is properly ap-
plicable, as where jurisdiction is assumed or exercised without
even color of authority, or beyond limits which are clearly
and unambiguously defined, or in the face of express statutory
prohibitions; but where, on the other hand, the officer has
jurisdiction of the subject-matter, i. a., of that class of cases,
but the question of jurisdiction in that particular case depends
upon some question for judicial determination, as upon the
validity or proper construction of a doubtful statute, or upon
the technical legal sufficiency of the averments of a prelim-
inary complaint or affidavit, or the existence of jurisdictional
facts, — questions upon which he is bound to decide, and ques-
tions, too, upon which, as is often the case, the learned judges
of the courts of last resort are unable to agree, — it certainly
seems not only impolitic, but a violation of the well-established
principle governing the liability of judicial officers, to hold the
inferior officer liable, at any rate where he has acted in good
faith and with an honest endeavor to do right."*
§ 58. Reasons for the rule stated by Cooley. — "Why the
law should protect one judge and not the other, and why if
it protects one only it should be the very one who, from his
higher position and presumed superior learning and ability,
ought to be most free from error, are questions of which the
following may be suggested as the solution.
1 Piper V. Pearson, 2 Gray (Mass.)* See Adkins v. Brewer, 8 Cow. (N. Y.),
120;61 Am. Dec, 438 (1854) ;Houlden 1824; 15 Am. Dec, 264; Tracy v. WUl-
T. Smith, 14 Q. B., 841 ; Mechem on iams, 4 Conn., 107; 10 Am. Dec, 102
Public OflBcers, § 632 (1890); Win- ( ).
gate v. Waite, 10 M. & W., 739; ' Mechem on Public Officers, g 682
CA)6\ej on Torte (2d ed.X 491, note 1. (1890).
LIABILITY FOB FALSE IMFBISONMENT. 151
"The inferior judicial officer is not excused for exceeding his
jurisdiction because, a limited authority only having been con-
ferred upon him, he best observes the. spirit of the law by solv-
ing all questions of doubt against his jurisdiction. If he errs
in this direction, no harm is done, because he can always be
set right by the court having appellate authority over hira,
and he can have no occasion to take hazards so long as his
decision is subject to review. The rule of law, therefore, which
compels him to keep within the jurisdiction at his peril, can-
not be unjust to him, because by declining to exercise any
questionable authority he can always keep within safe bounds,
and he will violate no duty in doing so. Moreover in doing
so he keeps within the presumptions of law, for these are al-
ways against the rightfulness of any authority in an inferior
court which under the law appears doubtful. On the other
hand, where a grant of general jurisdiction is made, a pre-
sumption accompanies it that it is to be exercised generally
until an exception appears which is clearly beyond its inter-
est; its very nature is such as to confer upon the officer in-
trusted with it more liberty of action in deciding upon his
powers than could arise from a grant expressly confined within
narrow limits, and the law would be inconsistent with itself
if it were not to protect him in the exercise of his judgment.
Moreover, for him to decline to exercise an authority because
of the existence of a question, when his own judgment favored
it, would be to that extent to decline the performance of duty,
and measurably to defeat the purpose of the law creating his
office; for it cannot be supposed that this contemplated that
the judge should act officially, as though all presumptions op-
posed his authority, when the fact was directly the con-
trary." ^
§ 69, A better rule — Beasley^ C. 3. — "The true general
rule with respect to the actionable responsibility of a judicial '
officer having the right to exercise general powers is that he is
responsible in any given case belonging to a class over which
he has cognizance, unless such case is by complaint or other
proceeding put at least colorably under his jurisdiction. When
the judge is called upon by the facts before him to decide
1 Ck)oley on Torts (Sd ed.). 491.
152 LIABILITY FOB FALSE IMPEISONMBNT.
whether his authority extends over the matter, such an act is
a judicial act, and such officer is not liable in a suit to the
person affected by his decision, whether such decision be right
or wrong. But when no facts are present, or only such facts
as have neither legal value nor color of legal value in the
affair, thus, in that event, for the magistrate to take jurisdic-
tion is not in any manner the performance of a judicial act,
but simply the commission of an unofficial wrong. This cri-
terion seems a reasonable one; it protects a judge against the
consequences of every error of judgment* but it leaves him
answerable for the commission of wrong that is practically
wilful. Such protection is necessary to the independence and
usefulness of the judicial officer, and such responsibility is im-
portant to guard the citizen against official oppression." ^
An APPLICATION OF THE BETrEE RULE. —
Complaint failing to show where the offense toaa commit tecL
On the 80th day of April, 1881, the defendant, acting as the police justice
of Coxsackie, issued a warrant for the arrest of the plaintiff on the charge
of assault and battery, the sworn complaint alleging that the plaintiff did
assault and beat the complainant in the latter's place of business by strik-
ing him without lawful authority. The complaint, upon which the war-
rant was issued, failed to show the place where the offense was committed.
The defendant issued the warrant, in which was written the village of Cox-
sackie as the place where the offense was committed. During an adjourn-
ment of the trial a constable took the plaintiff to the village lockup, where
he remained from fifteen minutes to an hour, when he was releused ; he
then brought an action against the police justice for false imprisonment.
On the trial the jury returned a verdict for $1,064.55, upon which judg-
ment was entered ; and the defendant appealed.
Learned, P. J. : ** Considering that this is an action against a magistrate,
acting in the apparent discharge of his duty, we think the jury must have
been influenced by prejudice in their verdict. It can hardly be of any use
iBeasley, C. J., in Grove v. Van 16 S. 0., 445; 43 Am. Rep., 641
Duyn. 44 N. J. L., 654; 42 Am. Rep., (1881); Henke v. McCord, 55 Iowa,
648. n. (1883). See, also, Bocock v. 878(1880); Maguire v. Hughes, 18 La.
Ckxjhran, 83 Hun (N. Y,), 531 (1884); Ann., 281 (1858); Savacool v. Bough-
Clark V. Spicer. 6 Kans., 440 (1870); ton, 5 Wend. (N. Y,\ 170; 21 Am.
Clark V. Holdridge, 58 Barb. (N. Y.), Dec., 181 (1830); Lange v. Benedict,
61 (1870); Kenner v. Morrison, 12 78 N. Y., 12; 29 Am. Rep., 80 (1878);
Hun, 204 (1877); Harrison v. Clark, Jordon v. Hanson, 49 N. H., 199;
4 Hun, 685(1875); Stewart v. Haw- 6 Am, Rep., 508 (1870); Baily v.
ley. 21 Wend. (N. Y.), 552 (1839); Wiggins, 5 Harr. (Del.), 462 ; 60 Am,
Harmon v. Brotherson, 1 Denio Dec, 650 (1653).
(N. Y.). 637(1815); McCallv. Cohen,
XJABILITY FOB FALSS DCFBISOIfMENT. 153
to go over the teetimony in detail on this point to support our views. With
this view we might for the present dispose of this case, but a new trial will
present questions of law which may well be considered at this time. In
the first place it is claimed that the magistrate acquired no jurisdiction be-
cause the sworn complaint did not state the offense to have been committed
in Cojcsackie. Under the decisions in Harrison v. Clark, 11 Sup. Ct. N. Y.
(4 HunX 6b5; Stewart v. Hawley, 21 Wend., 552; Herman v. Brotherson,
1 Den., 537, we are of the opinion that the action of the magistrate in issuing a
warrant upon the sworn complaint presented to him was judicial, and that
he is not liable to a civil action of false imprisoment for error therein. The
protection of any ofiicer who acts judicially against liability to an action for
error is most important, and has recently been asserted in the noticeable
case of Lange v. Benedict, 73 N. Y,, 12. We may refer also to Clark v.
Holdridge, 58Barb., 61, and Kenner v. Morrison, 19 Sup. Ot. N. Y. (12 Hun),
204. See, also, BIythe v. Tompkins, 2 Abb., 469, where this view is taken,
although the magistrate was liable for a defect in the warrant. The case of
Blodgott V. Race, 25 Sup. Ct. N. Y. (18 Hun). 132. cited by plaintiff, really
sustains this same view. The magistrate was held liable in that case be-
cause no facts were stated in the complaint, not because the facts stated
were insufficient. In the present case facts were positively sworn to.
Admit that they were insufficient, still the magistrate, acting judicially,
held that they were sufficient ; and he is not liable to a civil action for his
mistake.'* Judgment reversed on the law and for excessive damages.
Babcock v. Cochran, 82 Hun(N. Y.). 521 (1884),
§ 60. Liability when jurisdiction is assumed tli rough
mistake of fact. — Judicial officers are not liable for acting
without jurisdiction, or for exceeding the limits of their
authority, where the defect or want of jurisdiction is occa-
sioned by some matter or circumstance applicable to the case,
of which the judicial officer had neither knowledge nor the
means of knowledge. If the want of jurisdiction in a partic-
ular case is caused by matters of fact, it must be made to ap-
pear that they were known or ought to have been known to
the oiBcer, in order to hold him liable for his acts done with-
out jurisdiction.^
Application of the law. —
(1) A justice exceeds hia jurisdiction knowing the facts,
Clarke sued May for false imprisonment. Upon the trial it appeared
that he was summoned to appear before May, who was a justice of the
iMechera on Public Officers, g 684 Bing., 78; 10 Moore, 376; Lowcher
(1S90); Vaughn v. Congdon, 56 Vt., v. Earl of Radnor, 8 East, 113;
111; 48 Am. Rep., 758(1883); Clarke Calder v. Halket, 8 Moore, Privy
V. May, 2 Gray (Mass.), 410; 61 Am. Council Cases, 77 (1839).
Dec., 470 (1854); Pike v. Carter, 3
154 LIABILITY FOB FALSE IHPBISONMBNT.
peace, on t1)e 80th day of August, 1858, to testify in behalf of the common-
wealth on the trial of a complaint against one August Abell for being a
common seller of intoxicating liquors, but failed to obey the summons, and
Abell was tried on the said 80th day of August and acquitted. On the 7th
of Seji/tember following Clarke was arrested by the constable on a capias
issued by May, and taken before him (May) to answer a charge of contempt
for not appearing as a witness, and after a hearing was adjudged guilty
and sentenced to pay a fine. On his refusal he was committed to jail by
virtue of a mittimiLa issued by May, where he was kept until the next day,
when he was discharged on habeas corpus. Upon these facts the case was
submitted to the court for judgment. In delivering the opinion and ren-
dering judgment for the plaintiff, Bigelow, J., said: The ground on which
Clarke was discharged, on the return of the habeas corpiLS, was that under
the Revised Statutes, chapter 94, sections 5, 6, and Statutes of 1838, chap-
ter 42, by virtue of which justices of the peace are empowered to punish
for contempt persons duly summoned to testify before them who fail or
neglect to appear without reasonable excuse, no authority was conferred
to punish contempt by a separate and independent proceeding, but that the
power and jurisdiction of magistrates in such cases was only incidental
and auxiliary to the trial of the cause in which the witnesses were sum-
moned, and could not be legally exercised except during the pendency of
the cause; that after its final disposition by a judgment the authority to
punish such contempt ceased, and that Clarke was therefore illegally com-
mitted j»
The decision in that case is decisive of the liability of the defendant May
in the present action. Although he had jurisdiction of the subject-matter,
he was empowered by law to exercise it only in a particular mode and
under certain limitations. Having disregarded these limitations and ex-
ercised his authority in a manner not sanctioned by law, he was guilty of an
excess of jurisdiction which renders him liable as a trespasser to the party
injured. The rule of law by which such magistrates are held responsible
in such cases, and the authorities in support of the rule, ai'e fully stated in
Piper V. Pearson, 2 Gray (68 Mass.), 120 (1854). It is undoubtedly true that
judges and magistrates cannot be held liable in trespass for acting without
jurisdiction, or for exceeding the limits of their authority, where the defect
or want of jurisdiction is occasioned by some facts or circumstances appli-
cable to a particular case of which the judge or magistrate had neither
knowledge nor the means of knowledge. In other words, if the want of
jurisdiction over a particular case is caused by matters of fact, it must bo
made to appear that they were known or ought to have been known to the
judge or magistrate in order to hold him liable for acts done without juris-
diction ; otherwise the maxim ignorantia facti excusat applies. Pike v.
Carter, 3 Bing., 78; 10 Moore, 376; Lowther v. Earl of Radnor, 8 East,
113; Cakler v. Halket, 8 Moore, P. C, 77. But the case at bar does not
fall within this qualification of the general rule. The defendant May was
cognizant of all the facts which constituted the defect of jurisdiction in
the proceedings against the plaintiff. The result is, therefore, that the
plaintiff is entitled to judgment for his damages against the defendant
May. Clarke v. May, etc., 2 Gray (68 Mass.), 410 (1854),
LIABILITY FOB FALSE IMPSISONMENT. 155
(2) Justice^ 8 liability — Complaint showing thai the statute of limitations
had run against the alleged offense.
In a Vermont case a grand juror's complaint was exhibited to the de-
fendant, who was a justice of the peace, November 12, 1880, charging the
plaintiff with theft, and alleging the theft to have been committed on Sep-
tember 20, 1874, upon which the defendant, as justice of the peace, issued
his warrant, and the plaintiff was arrested by a sheriff, brought before the
defendant, and, after an examination, was ordered to procure bail for his
appearance at court, and, having failed to do so, was committed to jail on
a mittimus issued by the defendant. The statutes of that state provided
that complaints for theft should be commenced within six years after the
commission of the offense, and that, if a complaint is brought after the
time thus limited, "such proceeding shall be void and of no effect.*' B. L.,
sec. 1714. In an action for false imprisonment brought by the accused
against the justice, it was held that the complaint was void, as it showed
on its face that the statute had run on the offense charged ; that the de-
fendant had no jurisdiction of the process, and was therefore liable; and
that this was so, although it was made to appear to him that the crime had
not been discovered until the time when the warrant issued, as the statute
began to run from the commission of the offense, not from its discovery.
Vaughn v. Congdon, 56 Vt., Ill; 48 Am. Rep., 758 (1883).
§ 61. Judges of inferior courts acting under TOid or un-
constitutional statutes. — The rule in relation to the liability
of judges of inferior courts was here carried to the extent of
holding them liable where they act in good faith under statutes
afterwards held unconstitutional.* The severity of the rule
bas called forth much unfavorable comment, inasmuch as the
officer, when called upon to act under the statute, is obliged,
impliedly if not expressly, to pass upon its validity, thus
clearly exercising judicial powers, for an error in which he
ought not to be held responsible.^
An application of the rulb. —
A contrary doctrine.
McCk)rd, the acting marshal of tlie city of Newton, filed before Staver, an
actijig justice of the peace, an information charging Henke with keeping
beer for sale contrary to the terms of an ordinance, and praying for a war-
rant "to take any beer that might be found in the possession of Henke, as
by said ordinance provided." The warrant was issued, Henke*s premises
^ Kelly V. Bemis, 4 Gray (Mass.). ^Mechem on Public Officers, §631
83; 64 Am. Dec. 50 (1855); Ely v. (1890;; Henke v. McCord, 65 Iowa,
Thompson, 8 A. K. Marsh. (Ky.). 70 878, 885 (1880); Sessums v. Botts, 34
(1880); Mechem on Public Officers, Tex., 334(1870); State v. McNally, 34
§ 631 (1890). Me., 210; 56 Am. Dec., 650 (1852).
156 LIABILITY FOB FALSE IMPBISONMBlTr.
searched, and two kegs of beer seized by McCord acting as marshal. The
ordinance was afterwards adjudged to be void, and Hen ke sued the justice,
Stuver, and McCord, the marshal, in trespass. A demurrer having been
sustained to the petition, etc., the plaintiff appealed to the supreme court.
In considering the question of the liability of the defendants. Day, J.,
after discussing the validity of the ordinance, said : * ' We feel constrained
to hold that the city of Newton had no authority to pass the provisions of
the ordinance in question. The provisions of the ordinance being void for
want of authority of the municipal corporation to enact theui, is the justice
of the peace who attempted to enforce them liable to an action as a tres-
passer? The law is well settled that a judicial o£9cer acting within his
jurisdiction enjoys absolute immunity frora liability in a civil action for
mistake of law or error in judgment. 2 Hilliard on Torts, 101; Cooley
on Torts, 403. In a note to page 409, Cooley on Torts, it is said : ' There
are dicta in some cases that a justice is civilly responsible when he acts
maliciously or corruptly, but they are not well founded, and the express
decisions are against them.' See Jones v. Brown, 55 Iowa, 74; Green v.
Talbott, 86 Iowa, 400; Howe v. Mason, 14 Iowa. 510; Gowing v. Gowhill,
12 Iowa, 495; Wasson v. Mitchell, 18 Iowa, 158; Lancaster v. Lane, 10
111., 242; Adkins v. Brewer, 5 Cowen, 206; Pratt v. Gardner. 2 Cush., 63;
Tates V. Lansing, 5 Johns., 282; 0 Johns., 895. In order that this immu-
nity may be enjoyed it is necessary that the judicial officer shall have juris-
dictionin the premises. 2 Hilliard on Torts, 119, and authorities cited;
Adkins V. Brewer, 5 Cowen, 206; Lancaster v. Lane, 19111.. 241. In Cooley
on Torts, page 419, it is said: 'It is universally conceded that when in-
ferior courts or judicial officers act without jurisdiction, the law can give
them no protection whatever.'
" Recently, however, the rule has been held to be otherwise in the cases of
judges of superior courts where the error consisted in exceeding their au-
thority. The particular case was one in which the judge, sitting in one
court, ordered the name of an attorney to be stricken from the rolls for
contempt of authority committed in another court of which the judge
was also a member. It was held by the federal supreme court that he was
not responsible for this error. Bradley v. Fisher, 18 Wall., 885. Had it
been a justice of the peace who had committed a like error, an action
would have been supported, however honest might have been his motives,
and however plainly it might have appeared that he was intending to keep
within his powers. Whether a rule is just which a£fords immunity to the
judge of a superior court, who from his position cmd presumed learning
ought to be most free from error, whilst it holds an inferior judicial officer
liable, we need not now determine. In Kelly v. Bemis. 4 Gray, 83, it was
held that a justice of the peace who issued a warrant under an unconstitu-
tional law was liable in damages to the person arrested thereon. This is
the only case which can be found that goes to the extreme length, and the
doctrine, notwithstanding the learning and ability of the court by which
it was pronounced, does not meet with our approval. When the informa*
tion was presented to the justice in this case, all the matters pertaining to
his right to issue a warrant were properly brought within his jurisdiction.
He was called upon to exercise judicial powers. If the ordinance was
LIABIUTT FOB FALSB liiFRISONMXNT. 167
valid, it was his duty to issue bis warrant A refusal to do so would be a
disregard of the obligations imposed upon him hy his office. He could
justify his refusal only upon the ground that the ordinance was invalid.
He was thus called upon to pass judicially upon the validity of th^ ordi*
nance. In making this determination he acted strictly within his juris-
diction. An erroneous decision upon the subject is a mere mistake in
judgment for which he ought not to be held responsible. If a judge of a
circuit or a district court had committed a like error, it would hardly be
claimed that he would be liable to a civil action. There is neither reason
nor justice, it seems to us, in holding a justice of the peace liable to a civil
action for such an error in judgment. The warrant upon which the de*
fendant McCord acted is not set out in the record, and it is presumed to be
regular on its face. As the justice of the peace had jurisdiction, and in the
exercise of that jurisdiction simply erred in judgment, the ministerial offi-
cer executing the process is protected from civil liability. 2 Hilliard on
Torts, 125 ; Clarke v. May, 2 Gray, 410. As the defendants are not liable
to a civil action under the facts alleged, the decisions were properly sus-
tained." Judgment affirmed. Henke V. McCord et al., 56 Iowa, 878 (1880).
§ 62. Liability of judicial officers acting ministerially. —
Judicial officers are frequently called upon to perform duties
^bich are purely ministerilil in their nature, and when so act-
ing they are liable the same as oiher ministerial officers; in
such matters their judicial character affords them no protec-
tion.^
Application op thb law.—
(1) Liability ofJu$tiee acting miniHerially -^ Agent of plaintiff.
Under an old law of New York, commonly called the ten-pound act, it
is provided that the justice shall grant execution against the goods and
chattels, and, for want of sufficient goods and chattels, against the body of
the defendant By another act, called the " act for the relief of debtors,'*
with respect to the imprisonment of their persons, it is declared that no
person having a family> not being a freeholder, should be imprisoned by
virtue of any execution issued under the former. Chapin recovered a
Judgment before a justice of the peace of Albany county named Jones
against Percival. An execution was issued against the goods and chattels
of Percival, and in case no goods and chattels could be found, his body was
directed to be taken, which was the usual form of execution under the ten-
pound act. Under this execution Percival was taken and imprisoned for
thirty days.
/ After his release he brought a suit against the justice for false im-
prisonment. On the trial it appeared that Percival, immediately after the
judgment was obtained, declared to the justice that he was not a freeholder
iMcTeer v. Lebow, 85 Tenn., 121 40 Am. Dea, 180(1848); Mechem on
(1886); Stond v. Graves, 8 Ma, 148; Public Officers) g 083 (1890).
158 LIABILITY FOB FALSE IMPBI80KMENT.
and had a family in Albany county, where he was an inhabitant While
the constable was taking him to jail he met the justice, and Percival again
alleged that he was not a freeholder and was an inhabitant of Albany
county, and had a family there; but the justice directed the constable to
commit him according to his precept. The jury found for the plaintiff,
but the judge reserved the question whether, if the plaintiff was not a free-
holder and had a family, the justice could be liable to suit for issuing the
execution.
In the supreme court it was held that the plaintiff had been illegally
imprison ed. '* Justices of the peace in making out process act ministerially
as distinguished from their judicial acts. They act both as judge and
clerk, and in the latter capacity may, and, as to executions, they generally
do, act as agent for the party." " Mere ministerial officers, who, aa such,
issue or execute process, cannot nor ought to be responsible as long as the
court from which it issues has general jurisdiction to award such pro-
cess. But the party who sues out the process does it at his peril and is re-
sponsible." " While the justice acts ministerially, or as clerk of the party,
he will be justified in issuing any process within his jurisdiction that may
be demanded by the plaintiff.*' **If it appears to be the officious or volun-
tary act of the justice, without any direct authority for that purpose, an
innocent plaintiff ought not to be implicated. The justice was told by Per-
cival that he was not a freeholder, and when he afterwards met him on
his way to jail he directed the constable to obey the precept and commit
him to prison, and we must conclude the justice acted voluntarily and took
upon himself the capacity, and consequently the peril, of an agent of Cha-
pin. He is therefore answerable," etc. Judgment for plaintiff. Percival
V. Jones, 2 Johns. Cas. (N. Y.), 49 (1800). Citing Doug., 676; 8 Wils., 846;
1 Stra., 710; 2 Black. Rep., 1085; Cowp., 640, 647; 2 Wils., 886. Cited in
41 Barb. (N. Y.), 106; 6 Lans., 287; 1 Denio, 606; 8 Wend., 467^ 11 Johns.
(N. Y.), 446. Criticised in Hoose v. Sherill, 16 Wend., 86, dissenting
opinion of Bronson, J.
(2) Justice acting in good faith not liable for ministerial acta,
Moores, a justice of the peace, at the suit of one MuUiner, issued a war-
rant for the arrest of one Rogers under a statute called the fifty-dollar act.
No summons had been previously issued, nor was the warrant issued on oath
that Rogers was about to depart from the county, or that the plaintiff
would be in danger of losing his debt unless the process was by warrant,
as required by the statute. On being arrested and brought before the jus-
tice, Rogers inquired whether the warrant had been issued on oath. On
. being told it had not, he informed the justice that he was a freeholder,
objected to the regularity of the proceedings, and claimed to be discharged.
The justice immediately discharged him. Rogers then brought an action
for false imprisonment against both Mullinerand the justice.
On the trial it appeared that Mul liner, on the day before the warrant was
issued, told the constable that he intended to take out a warrant, and made
the necessary arrangements for the constable to receive it. Rogers proved
that previous to the arrest he was a freeholder of the county. The jury
LIABILITY FOB FAL8E IMPRISONMENT. 159
under the direction of the trial judge found a verdict against hoth defend-
ants, and the counsel for the parties entered into a stipulation that if the
supreme court should be of the opinion that the defendants, or either
of them, were not liable to the action, the verdict should be amended
accordingly, etc.
Savage, C. J. : " It is conceded that the defendant Mulliner is liable in
this action, but it is contended that the justice is not." '* In courts of lim-
ited and special jurisdiction the rule is strict that the party becomes a tres-
passer who extends the power of the court to a case in which it cannot
be lawfully extended. The doctrine is undoubtedly correct. The difficulty
in its application in this case is to ascertain who is the party wlio under-
takes to extend the power of the court." "Mere ministerial officers, who
as such issue or execute process, cannot nor ought to be responsible as
long as the court from which it issues has general jurisdiction to award
such process. Bat the party who sues out the process does so at his peril,
and he is responsible." Percival v. Jones, 2 Johns. Cas., 49. '*In issuing
process at the request of the party a justice acts ministerially, and is justi-
fied in issuing any process within his jurisdiction which is demanded by a
party, provided the justice acts in good faith. Should he knowingly issue a
warrant against the provisions of the statute he would be amenable in an
action. In this case the justice acted in good faith for aught appearing."
Judgment for plaintiff against Mulliner and in favor of defendant Moores.
Rogers v. Mulliner, 6 Wend. (N. Y.), 597 (1881). Citing Percival v. Jones. 2
Johns. Cas. (N. Y.), 49 ; The Marshalsea Case, 10 Co., 76 ; 2 Esp. , 890 ; 2 Yiner's
Abr. ,480, Trespass, C. a. , pi. 19, 20 : Hudson v. Cook, Skinn. , 1 81 ; Hill v. Bote-
man, 1 Str., 710; Perrin v. Proctor, 2 Wils., 886; Smith v. Bouchier, 2 Str.,
998; Warner v. Shed, 10 Johns., 188; Curry v. Pringle, 11 Johns., 444;
Taylor v. Trask, 7 Cow., 250; Gold v. Bissell, 1 Wend., 210. Cited in
1 Doug., 199; 4 Am. Dec., 48; 17 Abb. Pr., 247; 2 Abb. Pr., 472; 88 Barb.,
847; 16 Barb., 807; 14 Barb., 99; 4 Hun, 845; 5 Lans., 259; 20 N. Y., 802;
16 Wend., 86.
§ 63. Liability — Justice of the peace acting ministeri-
ally— The law stated by Ames, J. — IS'o authority need be
cited for the position that a justice of the peace, while acting in
his judicial capacity, and within the limits of his lawful juris-
diction, is exempt from all responsibility in a private action,
as a wrong-doer, for any official order or judgment, even
though it may be erroneous and malicious. But this exemp-
tion does not extend to any illegal act which he may have
done in the exercise of his ministerial powers and duties.
"When, in the progress of a civil action or a criminal proceed-
ing, a final judgment has been rendered, his judicial duty is at
an end, and nothing remains but to carry the judgment into
effect. The issue of the execution or other warrant for that
purpose is a ministerial and not a judicial act, and he may be
160 LIABILITY FOB FALSE IMPRI80KMENT.
held responsible in a civil action for any illegal act of that
description.^
§ 64. Ministerial acts — Corrupt motlTes. — The official ir-
responsibility of a justice of the peace, in a civil action, for
errors or misconduct in the exercise of his judicial functions,
does not protect him in unauthorized or illegal ministerial
acts, done with corrupt motives or for dishonest purposes.'
Applications of thb law. —
(1) Party not liable for the acts of the justice.
One Trask recovered a judgment of $87.50 against one Taylor, a free-
holder and a man of family, before a justice of the peace, and imme.
diately made the oath required by statute that he was in danger of losing
his debt if execution was not immediately issued. The justice had no
blank executions, but stated that he would issue one the next morning.
Accordingly the next day he issued an execution directing the constable
to levy the damages and costs of the goods and chattels of Taylor, and for
want thei-eof to commit his body to jail. He made use of an old blank,
and omitted, by mistake, to strike out that part of the execution which di-
rected the body to be committed, etc. Taylor was arrested, but as soon as
the mistake was discovered, and by order of Trask as soon as he heard of
the arrest, he was discharged. Taylor then brought an action for false
imprisonment against Trask. On the trial it appeared that he had given
no direction as to what kind of an execution was to be issued, but simply
made the oath required by the statute and directed the justice to issue an
execution. The justice delivered it to the constable. Trask did not see it
until after the arrest, and then, before Taylor had been committed to
prison, he ordered his discharge. The jury, under the direction of the
trial court, found a verdict for nominal damages, subject to the opinion of
the supreme court. In delivering the opinion of the supreme court, Sun-
derland, J., citing Percival v. Jones, 2 Johns. Cas, (N. T.), 49, said: " While
the justice acts ministerially, or as a clerk of the party, he will be justified
in issuing any process within his jurisdiction that may be demanded by the
plaintiff. But in order to charge the plaintiff in the suit it should appear
that it was really his act. It ought not to depend on the general intend-
ment of the law that any process is purchased by the party in whoee favor
it issues. If it appear to be the officious or voluntary act of the justice,
without any direct authority for that purpose, an innocent plaintiff ought
not to be implicated. In such a case the justice assumes the responsibility
of the measure and is liable for all its consequences.'* In speaking of the
defendant, the judge continues: '* He requested the magistrate to issue an
execution in a case in which the law clearly points out the kind of execu-
1 Fisher v. Deans, 107 Mass., 118 'Fisher v. Deans, 107 Mass., 118
(1871) ; Briggs v. Wardwell, 10 Mass., (1871),
866 (1818); Daggett v. Cook, 11
Gush., 262 (1858).
XJABILITT FOB FALSE IMPBI60NMENT. 161
tion to be tflsned. No doubt existed upon any matter of fact which was
Deceesary to be removed by the party before the magistrate could know
what execution to issue. In issuing an execution of a different character
he must be considered as acting officiously and voluntarily, and not as the
agent of the party. He ought to be responsible, and not the plaintiff
in the execution." Judgment was given for the defendant. Taylor v.
Trask, 7 Cow. (N. Y.), 249 (1827). Cited in 25 Am. Dec., 48; 19 Am. Dec.,
484; 5 Duer (N. Y.). 124; 5 Barb. (N. Y.), 468; 5 Lans. (N. Y.), 107; 1 Denio
(N. Y.). 596; 16 Wend. (N. Y.), 46; 10 Wend. (N. Y.), 868; 8 Wend. (N. Y.),
467, 681 ; 6 Wend. (N. Y.), 602; 6 Wend. (N. Y.), 248, 299; 1 Wend. (N. Y.),
216.
<2) Issuing mittimus after suffering defendant to go at large for a year,
illegal.
In July, 1850, Daggett, a minor, was tried and convicted before Alvin
-Cook, a justice of the peace, for an assault and battery. Ho was fined $2
and costs, and ordered to stand committed till fine and costs were paid.
His father, as his next friend, appealed, and entered into recognizance to
prosecute his appeal with effect, and he was allowed to go at large. In
January, 1851, the appeal was dismissed, and the case remanded to the
magistrate for the enforcement of the sentence. Cook issued a mittimus
for the non-payment of fine and costs, which he delivered to an officer. On
the 19th day of June, 1851, Daggett, being still at large, was taken by the
officer to jail, and detained until the morning of the following day, when
he was set at liberty on paying the fine and costs. Then he brought an
action against the justice. Cook, for false imprisonment. On the foregoing
facts appearing in evidence, the court ruled that if the magistrate volun-
tarily suffered the plaintiff to pass from custody before him, and by his
order permitted him to go at large, and be at large, and not having first
issued a capias or any process to bring him again before him, had no right
to issue the mittimus. Being illegally issued, it afforded no protection, and
tendered him liable. A verdict being returned for the plaintiff, the de-
fendant excepted, and the matter coming before the full court, the ruling
was sustained. Dewey, J. : " The case presents itself thus : A party ac-
•cused of the crime of assault and battery was tried, convicted and sentenced
to pay a fine and costs, all on the 10th day of July, 1850. Thereupon the
party thus convicted was permitted to go at large, and no order for his
committal was then made. On the 19th day of June, 1851, nearly a year
after this, the party was arrested and committed to prison on the common
mittimus^ such an one as would have been appropriate on the d&jjot the
oonviotion if he had failed to pay the fine and costs.
'* This proceeding was, we think, unauthorized. A preliminary step, the
issuing a capias to bring the party before the justice to show cause why
he should not be committed in execution of the sentence, would seem to be
required at least before issuing a mittimus at that remote period from the
time of passing sentence. The party should, at that late day, have had
the opportunity to show cause why he should not be committed to jail for
not paying the fine and costs he had been adjudged to pay. This not hav-
11
162 LIABILITT FOB FALSE DfPBIBONMENT.
iDg been done, but a mittimus issued nearly a year after tbe time the party
had been permitted to go at large, under judgment and sentence on the
complaint against him, the proceeding was irregular, and the mittimus not
authorized." Daggett v. Cook, 65 Mass., 262 (1858).
§ 6&. Liability of a justice of the peace in issuing process
without authority of party in interest. — The relation exist-
ing between a plaintifT and a justice's judgment and the jus-
tice himself is very different from that between attorney and
client in courts of record. The attorney is the mere agent of
the client. The client is responsible for all the acts of the at-
torney which affect third persons, whether they were author-
ized by him or not. He is not, from considerations of public
policy, permitted to deny his authority.^ If a justice of the
peace issue an execution without its being demanded by the
plaintiff in the judgment, the latter is not responsible for
it. It is considered the act of the justice only. He is not a
mere clerk or agent, therefore, in issuing process in all cases.
Whether he is or not depends on the circumstances of each
particular case.^
Applications op thb law. —
Service of process by unauthorized persons void — Liability of justice for
proceeding under such service.
Under the New York pauper act it wae provided that a warrant might
be issued against any person charged with being a pauper to the constable
of the town likely to become chargeable. Reynolds was a resident of the
town of Le Roy, in Jefferson county, having been assessed and paid taxes,
there in 1817 and 1621. In 1823 Orvis and Hamlin, justices of the county,
issued a warrant directed to any constable of the county, commanding,
etc., to bring Reynolds before them to be examined as a pauper. Instead
of delivering the warrant to a constable of Le Roy, the town liable to be-
come chargeable as required by the statute, they delivered it to a constable
of the town of Philadelphia in the same county, who apprehended Rey-
nolds and brought him before Orvis and Herrick, two justices, for exami-
nation. He was examined, and the justices made an order for his removal
to Saratoga county, and they were removed, etc. Then Reynolds brought
an action against the justices, Orvis and Herrick, for false imprisonment.
On the trial, these facts being shown, the judge nonsuited him, a motion
being made for a new trial on a bill of exceptions, eta In the supreme
court it was held that, the statute requiring that the process should be exe-
I Taylor v. Trask, 7 Cow., 250 2 Taylor v. Trask, 7 Cow,, 250
(1827); Denton v. Noyes, 6 Johns., (1827); Percival v. Jones, 2 Johns.
296 (1810); 3 Wils., 845; Doug., 676. Cas., 49 (1800).
LIABILITY FOB FALSE IMPRISONMENT. 163
cuted by a certain person, and it having been executed by another, such
proceeding were void and gave no jurisdiction to the justices. Their sub-
sequent proceedings under it were coram rum judice and void, and that
the action of false imprisonment would lie. New trial ordered. Reynolds
V. Or vis and Herrick, 7 (}ow., 269 (1827).
§ 66. Llabilityof justices of the peace acting judicially. —
In courts of special and limited jurisdiction the rule is strict
that the party becomes a trespasser who extends the power of
the conrt to a case in which it cannot lawfully be extended.
A diflBculty frequently arises in ascertaining who the party is
who undertakes to extend the power of the court. Mere min-
isterial officers, who as such issue or execute process, cannot nor
ought to be responsible as long as the court from which it is-
sues has jurisdiction to award such process. The party who
sues out the process does it at his peril and he is responsible.'
§ 67. Liability for the abuse of legal process.— Judicial
officers sometimes become liable for the malicious abuse of
legal process, as where they employ it for some unlawful ob-
ject, not being the purpose for which it was intended by the
law.*
Illustrations of thb bule. —
(1) Abuse of process — Liability of justice.
Charles H. Dean, trial justice, issued a warrant against Levi C. Fisher^
on the complaint of David Fisher, charging him with maliciously taking
and carrying away a pine log from his land. Fisher was tried, convicted^
fined, and sentenced to stand committed till the fine and costs were paid.
A mittimus was issued January 28, 1868, and on April 1, 1868, Fisher was
arrested on it and committed to jail and kept there for thirty days. Upox^
his release he brought an action for false imprisonment against the justice.
On the trial the plaintiff offered evidence tending to show that the con-
duct of the defendant, in issuing the warrant and convicting and sentenc-
ing him, was prompted by malice, but the trial judge excluded it. On ex-
ceptions it was held that the evidence was competent ; that the defendant
as a trial justice suffered the plaintiff, whom he had sentenced to pay a
fine and costs, to go at large, and ten weeks afterwards, the fine and cost»
remaining unpaid, committed him to jail upon a mittimus for the purpose
of extorting money from him. Fisher v. Deans, 107 Mass., 118 (1871).
1 Percival v. Jones, 2 Johns. (N.Y.X ' Mayer v. Walter, 64 Pa. St., 285
49 (1800); Rogers v. Mulliner, 6 (1870).
Wend. (N. Y.), 697 (1881) ; The Mar-
■halsea Oase, 10 Ca, 76.
164 LIABILITY FOB FALSE IMPRISONMENT.
(2) Abuse of process — Use of criminal process to enforce settlement of a
debt
One Wood brought an action against William W. Bailey, Josiah G.
Graves and (Charles H. Burns for false imprisonment and for abuse of
criminal process. He alleged that in 1873 he was, ai|d for a long time
had been, agent of the Peterboro Railroad Company, a corporation organ-
ized under the laws of New Hampshire, and having its usual place of
business at Nashua, Hillsboro county. New Hampshire, and had rendered
the company valuable services as such agent; that in May, 1872, he be-
came its treasurer, and remained its treasurer till 1877. giving bond as
treasurer in the sum of $15,000, with said Bailey and Graves as his sure-
ties, Graves being then and thereafter a director ;* that on September SO,
1875, with the consent and approval of a majority of the directors first ob-
tained, and with knowledge of all, he rightfully, as defendants knew,
took from the treasury of said company $4,200, as payment for his serv-
ices as agent and treasurer, and entered the same properly on its books;
that thereafter, on June 1', 1878, said Burns being the attorney of said rail-
road company, and also county solicitor for Hillsboro county, brought an
action upon said bond against said Wood, Bailey and Graves to recover
back said $4,200, a*tad recovered judgment early in 1883 against all of
them, in the sum of $6,000; that, after said judgment was recovered, said
Burns, Bailey and Graves, for the sole purpose of enforcing the payment
of said judgment by the said Wood alone, falsely, maliciously and without
probable cause, procured an indictment against said Wood, in the supreme
court of Hillsboro county, for the crime of embezzlement, they well know-
ing that he was not guilty of such crime, and that the court had no juris-
diction ill the premises, inasmuch as the alleged offense occurred more
tiian six years before the date of the indictment, and said Wood had been
usually, publicly and continuously a resident of said Nashua during all of
said period, and before, and knowing that such indictment could only be
procured by the intentional and wilful misrepresentation and concealment
of material facts, and that the court had no jurisdiction ; that thereafter
the defendants fraudulently obtained a requisition from the governor of
New Hampshire upon the governor of Massachusetts, where said Wood
then resided, for hisYendition as a fugitive from justice, and caused said
Wood to be arrested in Boston, and confined in a jail for one night, and
then to be delivered to one Buxton, a deputy sheriff of said Hillsboro
county, and the agent of the governor of New Hampshire, and to be con-
veyed by said Buxton to said Nashua, whei'e, by the procurement of the
defendants, he was wrongfully held in custody by said agent for six days,
against his will, and without reasonable cause, and was fraudulently forced
by the defendants to give to said Bailey and Graves a deed of nine thou-
sand six hundred acres of land in Texas, and to procure a deed to them
from his daughter of certain lands in New Hampshire, and to pay all 4he
costs and expenses of his arrest and imprisonment, after which he was
discharged without being brought to court, or allowed to procure .bail ;
and that said indictment was afterwards nan prosed by Burns, and no war-
rant, precept, capias or requisition ever returned to court.
LIABILTIT FOB FALSB IMPBISONHENT. 165*
No service was raade upon Bums, and the case proceeded to trial against
Bailey and Ghraves.
On the trial, the facts appearing substantially as alleged, the jury found
a verdict for the plaintiff of |7,500, and the defendants alleged exceptions.
In discussing the exceptions Allen, J., said:
** There is no d^bt that an action lies for the malicious abuse of lawful
process, civil or criminal. It is to be assumed, in such a case, that the
process was lawfully issued for a just cause, and is valid in form, and that
the arrest or other proceeding upon the process was justifiable and proper
in its inception. But the grievance to be redressed arises in consequence
of subsequent proceedings. For example, if, after an arrest upon civil or
criminal process, the party arrested is subjected to unwarrantable insult
and indignities, is treated with cruelty, is deprived of proper food, or is
otherwise treated with oppression and undue hardship, he has a remedy by
an action against the o£9cer, and against others who may unite with the
officer in doing the wrong.
'* It is sometimes said that the protection afiforded by the process is lost,
and that the officer becomes a trespasser ab initio, Esty v. Wilmot, 15
Gray, 168; Malcom v. Spoor, 13 Mete., 379. This rule, however, is some-
what technical, and is hardly applicable to others than the officer himself.
But the principle is general, and is applicable to all kinds of abuses outside
of the proper service of lawful process, whether civil or criminal, that for
every such wrong there is a remedy, not only against the officer whose
duty it is to protect the person under arrest, but also against all others who
may unite with him in inflicting the injury. Perhaps the most frequent
form of such abuse is by working upon the fears of the person under arrest,
for the purpose of extorting money or other property, or of compelling him
to sign some paper, to give up some claim, or to do some other act, in ac-
cordance with the wishes of those who have control of the prosecution.
The leading case upon this subject is Grainger v. Hill, 4 Bing. N. C, 212,
where the owner of a vessel was arrested on civil process, and the officer,
acting under the directions of the plaintiffs in the suit, used the process to
compel the defendant therein to give up his ship's register, to which they
had no right. He was held entitled to recover damages, not for mali-
ciously putting the process in force, but for maliciously abusing it, to effect
an object not within its proper scope. In Page v. Gushing, 88 Me., 523»
the same doctrine was held applicable to the abuse of criminal process.
HoUey v. Mix, 8 Wend., 850, is to the same effect, and it was held that an
action for false imprisonment will lie against an officer and a complainant
in a criminal prosecution where they combine and extort money from a
party accused, by operating upon his fears, though the party was in the
custody of the officer under a valid warrant, issued upon a charge of
felony.
"The case of Baldwin v. Weed, 17 Wend., 224, was an action for false
imprisonment. The plaintiff had been indicted in New York. He was
arrested in Vermont and carried to New York for triaL The defendant.
Weed, procured the requisition, was present at the arrest and caused the
plaintiff to be put into irons, with the purpose to secure two small debts.
The plaintiff executed to Weed a bond for the delivery of property much
466 LIABILITY FOB FALSE IMPRISONMENT.
'in ^»9e8s of the debts. The action for malicioas prosecution failed, but the
court (Nelson, J.) declared that an action of trespass, assault and false im-
prisonment should have beeYi brought, and was the appropriate remedy
for the excess of authority and abuse of the process, and intimated to the
plaintiff to amend his pleadings accordingly* See, also, Carleton v. Taylor,
«) Vt., 220; Mayer v. Walter, 64 Pa. St., 283.
** On similar grounds, an officer becomes responsible in damages, for
abuse of process, or as trespasser ab initio, by reason of such abuse, who
omits to give an impounded beast reasonable food and water while under
bis care (Adams v. Adams, 18 Pick., 884) ; or who stays too long in a store
'Where he has attached goods (Rowley v. Rice, 11 Mete., 887; Williams v.
Powell, 101 Mass., 467; Davis v. Stone, 120 Mass., 228); or who keeps a
keeper too long in possession of attached property (Gutter v. Howe, 122
Mass., 541); or who places in a dwelling-house an unfit person as keeper,
against the owner's remonstrance (Malcom v. Spoor, 12 Mete, 279).
*'Iu various other cases, where it has been said that the only remedy
'was by an action for malicious prosecution, the whole grievance com-
plained of consisted in the original institution of the process, and no abuse
in the mere manner of serving it was alleged. Such cases are Mullen v.
Brown, 138 Mass., 114; Hamilburgh v. Shepard, 119 Mass., 80; Coupal v.
Ward, 106 Mass., 289; O'Brien v. BaiTy, id., 800. The case of Hackett
V. King, 6 Allen, 58, was trover for the conversion of property which the
plaintiff conveyed to the defendant under alleged duress. In Taylor v.
Jaques, 106 Mass., 291, t]>e question arose in another form, the action being
on a promissory note, in defense to which the defendant alleged that his
signature was procured by duress."
The exceptions were sustained but upon other grounds. Wood v. Bailey,
144 Mass., 365; 11 Atl. Rep., 567 (1887).
§ 68. Liability of quasi-judicial officers. — The functions
of a qtcasi']ud\cml oflScer are those which lie midway between
the judicial and ministerial ones. The lines separating these
from such as are thus on their two sides are necessarily indis-
tinct; but in general terms, when the law, in words or by im-
plication, commits to any oflScer the duty of looking into facts
and acting upon them, not in a way which it specifically di-
rects, but after a direction in its nature judicial, the function
is termed ^i/a^t-judicial.^ The same reasons of private inter-
est and public policy which operate to render the judicial
officer exempt from civil liability for his judicial acts within
his jurisdiction apply equally as well to the (^t^a^'-judicial ofii-
cer. He cannot be called upon to respond in damages for the
honest exercise of his judgment within his jurisdiction, how-
ever erroneous or misguided that judgment may be.'
^ Bishop's Non-contract Law, * Mechem on Public Officers, § 638
S§ 785, 786. (1890).
liability fob false imfbi80nment. 167
An illustration of the bule. —
Quasi-jvdieial tribunals — Overseers of the poor.
Catherine Smith and her three children, John, aged ten ; Kate» seven, and
Thomas, five years, being poor and in need of support, went to the poor*
house in the city of Lowell, and were there supported as paupers. At a
meeting of the overseers of the poor, at which Joeiah G. Peahody presided
as mayor of the city of Lowell, it was voted that the children should be
sent to the "Baldwin Place Home for Little Wanderers" in the city of
Boston, a corporation established under the laws of Massachusetts " for
the purpose of rescuing destitute children from want and shame, provid-
ing them with food and clothing," etc. In pursuance of the vote, and by
direction of the overseers, Lorenzo Phelps, who was superintendent of
the Lowell poor-house, took the children against their mother's wishes to
the Baldwin Place Home. The mother, who was a soldier's widow, hav-
ing procured a pension, afterwards left the poor-house. She then brought
an action against both Peabody and Phelps for false imprisonment, claim-
ing that they seized and took the children against her will, and kept them
imprisoned and restrained against her will, and deprived her of their soci-
ety and assistance. It appeared that the defendants, when asked where
the children were, made no reply. On the trial, the foregoing facts ap-
pearing, the court directed a verdict for the defendants. On exceptions.
Chapman, J., held that the fact that the plaintiff and her children, being
poor and in need of support as paupers, went to the poor-house, gave to
the overseers of the poor the care and oversight of each of them, with
power to see that they wore suitably relieved, supported and employed,
either in the work-house or almshouse, or in such manner as the city
should din ct, or otherwise at their own discretion. As the overseei-s were
not bound to retain them within the city limits, but might provide for
them elsewhere in a suitable place within the limits of the common-
wealth, they might lawfully place them in the Baldwin Place Home, the
purposes of that institution, as stated in its charter, indicating that it
was a suitable place, and there being no evidence in the case to prove the
contrary. " The action, being for an illegal taking and imprisonment of
the children against the plaintiffs will, is not sustained by the evidence.''
Smith V. Peabody, 106 Mass., 263 (1871).
§ 69. Arrests by officers. — (1) With process: An arrest
has been defined to be the act of depriving a person of his
liberty by legal authority; seizing his person and detaining
him in the cnstody of the law.^ The officer to whom the
process is directed is in general the proper person to make the
arrest. Sut if the authority of the process is insufficient, the
officer may become liable as a trespasser.
(2) Without process: Any peace officer, as a justice of the
peace, sheriff, coroner, constable or watchman, may arrest with*
1 1 Bouvier*8 Law Dictionary, 184.
168 LIABILITY FOB FALSE IMPRISONMENT.
out process any person committing a f^ony \n his presesce^
or committing a breach of the peace daring its continuance
or immediately after, or even to prevent the commission, and
such officer may arrest any one whom he reasonably suspects
of having committed a felony, whether a felony has actually
been committed or not, whether acting on his own knowledge
or on information communicated by others, but not unless the
offense amounts to a felony.^
§ 70. Officer protected by process regular on its face. —
Where process regular upon its face is put into the hands of
an officer, it is his duty to proceed without delay to execute it
according to its mandates. Out of this duty arises the neces-
sity of protection ; and the rule of law is well settled, that for
the proper execution of such process the officer incurs no
liability, however disastrous may be the effect of its execution
upon the person against whom it is issued, or however unlaw-
ful and irregular may have been the methods to procure the
issuing of process.^
§71. What is process regular on its face. — The process
which will afford this protection to an officer as being fair or
regular upon its face has been defined as that which proceeds
from a court, magistrate or body having authority of law to
issue it, and which is legal in form and on its face contains
nothing to notify or fairly apprise the officer into whose
hands it is placed for service that it is issued without author-
ity.'
§ 72. Officer protected by regular process — The law
stated by Blgelow, J. — For reasons founded on public policy,
and in order to secure a prompt and effective service of legal
process, the law protects its officers and those acting under
them in the performance of their duties, if there is no defect
1 1 Hale's p. C, 186; 8 Hawkins' wood v. Robinson, 106 Mass., 296
P. C, 164; 1 Bouvier's Law Die- (1871);Brainardv.Head, 15La. Ann.,
tionary. 184, and cases cited. 489 (1860); Kelley v. Noyes, 48 N. H.,
2Nowell V. Tripp, 61 Me., 426; 14 209 (1868); Cunningham v. Mitchell,
Am. Rep., 572 (1871); Bird v. Per- 67 Penn. St, 78 (1870); Allen v.
kins, 88 Mich., 28 (1875); Savacool Scott, 13 lU., 80 (1851); Prince v.
V. Boughton, 5 Wend. (N. Y.), 170; Thomas, 11 Conn., 472 (1886); Mc-
21 Am. Dec, 181; Chegaray v. Lean v. Cook, 28 Wis., 864 (1868).
Jenkins, 5 N. Y., 376 (1851) ; Ramsey » Cooley on Torts, 460.
V. Bader, 67 Mo., 476 (1878); Under-
UABIUTT FOB FALSE IMPRISONMENT. 16^
or want of jarisdiction apparent on the face of the writ or
warrant under wbioh thev act. The officer is not bound to-
look beyond his warrant. He is not to exercise his judgment
touching the validity of the process in point of law; but if it
is in due form and is issued by a court or magistrate appar-
ently having jurisdiction of the case or subject-matter, he is-
to obey its command. In such case he may justify under it,
although in fact it may have been issued without authority
and therefore be wholl}'' void.^
Applications of the law. —
An infant arrested iUegaUyfor debt — Regular process protects the officer.
Caseier brought an action for false imprisonment against Fales. He was-
under the age of twentj-one, and was arrested upon a writ sued out by
Fales, upon which was the proper affidavit and certificate required by law
to authorize the arrest. The plaintiff testified that he notified the officers
and the defendant who was arresting him that he was under age. The
court was asked to rule that if the defendant, attorney and constable were
notified that the plaintiff was under age, after such notice they had na
right to proceed with the arrest under mesne process. The court refused
and the plaintiff excepted.
Morton, J., said : ** We are of the opinion that by reason of his infancy
the plaintiff was exempted from arrest for debt either upon execution or
mesne {irocess. But it does not follow that he can maintain an action of
trespass for the arrest and imprisonment. It is entirely clear that such an
action cannot be maintained against the officer making the aiTest. An
officer is protected in the service of process if it is issued by a court having
jurisdiction, and appears upon its face to be regular and valid, even if
it is fraudulently or irregularly issued. Wilmarth v. Bent, 7 Met., 257;.
Twitchell v. Shaw, 10 Cush., 46; Fisher v. McGirr, 1 Gray, 1; Blake's
Case, 106 Mass., 501. But where an arrest is made upon legal process reg-
ular* upon its face, and therefore sufficient to justify an officer, but which
has been fraudulently or irregularly obtained and issued, the party who
procures it, and directs it or causes it to be served, is not justified by it.
He is bound to see to it, before he sets the law in motion, that the process-
he obtains is regular and valid : and if it is not he is liable in an action of
trespass. Emery v. Hapgood, 7 Gray, 55; Ck>dy v. Adams, id., 59. But
in the case before us the writ sued out by the defendant was regular and
valid.
'* The plaintiff's exemption from imprisonment under it arises, not from
any irregularity or illegality in the writ, but from his personal privilege of
Infancy. It is similar in principle to any other case of personal privilege*
Suppose a creditor sues out an execution or writ in due form against hia
debtor and delivers it to an officer for secvice, the officer arrests the debtor^
1 Emery v. Hapgood, 7 Gray (73 Mass.), 55 (1856).
170 LIABILITY TOR FALSE IMFBI80NMENT.
4ind it turns out that at the time he 10 under protection as a partj or wit-
ness attending court, can the creditor be liable as a trespasser? 'It is in-
comprehensible,* says Lord Kenyon, in Belk v. Broadbent, 8 Term R.»
185, * to say that a person shall be considered as a trespasser who acts
tinder the process of the court." In Tarlton v. Fisher, 2 Doug., 671, which
'^-as trespass for arrest and false imprisonment of a certificated bankrupt
arrested upon an execution, Butler, J., says that the debtor might have a
supersedeas of the execution, but until superseded the original party was
«iot liable in trespass, and even after supersedeas, though trespass would lie
: gainst the party, it would not lie against the officer. In Deyo ▼. Van
Valkenburgh, 5 Hill, 243, it was held that a judgment creditor who took out
■execution after the judgment had been satisfied by a discharge in insolv-
ency, and caused it to be executed, was liable in an action of trespass. But
in delivering its opinion the court said that the violation of a personal privi-
lege is no. ground for an action for false imprisonment. The question be-
fore us was carefully considered in the recent case of Marks v. Townsend,
^7 N. Y., 590. .In that case the plaintiff was arrested for debt. He was
discharged from the arrest upon showing to the court that he had previ-
ously been arrested for the same cause and upon the same grounds. It was
lield that an action for false imprisonment would not lie for the second ar-
rest, even if the defendant maliciously caused it to be made, because it
was made upon a process regularly issued by a court having jurisdiction
of the matter.
'* It is difficult to see how any person can be guilty of a trespass in serv-
ing, or causing to be served, a valid writ or other process of a court. The
plaintiff has his remedy by a right to a speedy release upon proper appli-
oation, and by the right to bring an action on the case if the defendant has
maliciously violated his privilege by the arrest. The fact that the plaintiff
gave notice of his infancy to the defendant at the time of the arrest is not
«uaterial. It did not make the writ an illegal process. What might be its
importance upon the question of the defendant's malice, in an another
form of action, is not for us to consider.
'* We are of opinion that upon the facts of this case an action of trespass
will not lie, and that the court rightfully refused the rulings requested by
4;he plaintiff. Exceptions overruled.'* Gassier v. Falee, 189 Mass., 461 ; 1
N. E. Rep., 933 (1885).
§ 73. Process regular on its face —When it does not pro-
tect the officer. — When the oflacer arrests one person, with-
out his fault, upon a warrant issued against another;^ or
4irrests the right person by the wrong name, unless it be
«hown that be was known as well by one name as the other;'
iFormwalt v. Hilton, 66 Tex., 288 McMahan v. Green, 84 Vt, 69; 80
<1886) ; Dunstan v. Patterson, 2 C. B. Am. Dec., 665 (1861) ; Mead v. Haws,
<N. 8.), 495. 7 Cow. (N. Y.), 832 (1827); Griswold
ajohnson v.Rily, 18 Ga., 97(1853); v. Sedgwick, 6 Cow. (N. Y.). 456;
eoye V. Bush, 1 M. & G., 784; 1 Wend. (N. Y.), 126 (1828).
LIADILITY FOU FALSE IMl'ItlSONMEXT. 17L
or where be makes an arrest in a place beyond bis jurisdic*
tion ; ^ or where be takes tbe body of a debtor on execution
witbout searching for goods, in cases wbere tbe defendant in
tbe writ bad goods subject to levy and notified tbe officer of
tbe fact,' and in other similar cases, tbe writ, though regular
on its face, affords him no protection, and be is liable to tbe
injured person. In this respect tbe officer is bound to know
tbe law, and in these matters be must keep within its provis-
ions at his peril.'
Applications of the law. —
(1) Liability of officer under regular process,
C. H. Robinson, a deputy sheriff, arrested and imprisoned Erastus C.
Underwood on a writ in favor of E. C. Brown, issuing out of the superior
<x>urt, in an action of contract, with an affidavit and certificate annexed in
accordance with the statute, purporting to authorize the arrest of Under-
wood, and was regular in form. But the magistrate before whom Brown
made the affidavit and who signed the certificate was James T. Joslin, of
tbe firm of Joslin & Johnson, attorneys at law. Joslin made the writ as
Brown's attorney, and indorsed on the back of it the words: " Mr. Officer,
arrest defendant'* **From the office of Joslin & Johnson." After his
release Underwood sued the officer for false imprisonment, the process
being void. It was sought to hold him on the ground that he knew Jos-
liu*s handwriting, and that as the indorsement and the body of the writ
were both in the same hand, and Joslin's, be was chargeable with notice.
The plaintiff requested the trial judge to rule, " if the defendant knew that
tlie writ tvas made by the person before whom the affidavit was made, or
by reasonable inspection of the writ could have known that fact, he was
liable." The judge declined so to rule and the verdict was for the defend-
ant. On exceptions. Gray, J., said: "The fact (that the person who as
magistrate took the affidavit indorsed upon the writ in the former action
also made out the writ as attorney for the plaintiff) did not appear on the
face of the process or affect the jurisdiction of the court from which it
issued over the parties or the cause of action, but depended on the officer^
private knowledge of the magistrate's handwriting and relation to one of
the parties to that action, which the officer was not bound to think about,
and which could not deprive him of the conclusive protection which the
law attributes to process regular on its face and issued by a court of com-
petent jurisdiction." The verdict was sustained. Underwood v. Robin-
son, 106 Mass., 296 (1871). Citing Chase v. Ingalls, 97 Mass., 524; Webber v.
Gay, 24 Wend., 486; People v. Warren, 5 Hill, 440; State v. Weed, 1 Fos-
ter, 262; Gen. Stats. Mass., ch. 124, g 1.
1 People V. Burt, 51 Mich., 199 'Maloolmson v. Scott, 56 Mich.»
(1883). 459 (1885).
«Barhydt t. Valk, 12 Wend.
(N. T.), 145; 27 Am. Dea, 124 (1834).
172 LIABILITY F0& FALSE IHPKISONMSNT.
(3) Process issued by a court having jurisdiction of sub!ject''fnatter protects
the officer executing it.
One Shed, being a constable, in the execution of his office reoeiYed a war-
rant of commitment under the hands and eeals of three justices of the
peace, against Warner, by virtue of which he took and carried him to the
county jail, where he was imprisoned. This warrant stated that Warner
and another had been brought before the justices and oonvicted at a court
of special sessions of an assault and battery, fined |25 and sentenced to
thirty days' imprisonment. After his release from imprisonment Warner
sued Shed, the officer, for false imprisonment, on the ground that the con-
viction was erroneous. The officer relied upon this warrant for his justifica-
tion, but the court ruled that it was insufficient, and the jury found a ver-
dict for nominal damages. Upon a motion for a new trial the supreme
court held that, the court having jurisdiction of the subject-matter, it is
sufficient to* justify the officer serving its process. Whether the con-
viction was erroneous or not was not material to him, as he is not bound to
examine into the validity of its proceedings and of the process. New trial
granted. Warner v. Shed, 10 Johns., 189 (1818). Citing Hill y. Bateman^
Stra., 710 (1728); The Marshalsea, 10 Co., 76a ( ).
§ 74. An officer's authority is derived from his writ. —
As an oflScer derives his authority to interfere with the person
of another only from his writ, and the writ confers authority
to arrest the body of no one but the person named therein
and against whom the writ is issued, any interference, there-
fore, with the liberty of a person other than the one named in
the writ renders the officer liable in trespass, unless such in-
terference is caused by the act of the person himself. So if
the officer, having a warrant for the arrest of one person, ar-
rests another, though of the same name,^ he is liable,' unless
the arrest was caused by the act of the person arrested,' or
where he arrests the right person by the wrong name, unless
it be shown that he was known by one name as well as by
the other.*
Applications of thb law. —
(1) Arrest of right person by wrong name,
Daniel Griswold was arrested under process purporting to have been
issued out of the equity side of the United States circuit court, directed to
iMechem on Public Officers, 'Formwalt v. Hylton, 66 Tex.,288
§§780, 781 (1890) -.Jarmainv. Hooper, (1886); Price v. Harwood, 8 Camp.,
6M. & a, 827, 847. 108.
2 Form wait v. Hylton, 66 Tex., ^Mahan v. Green, 84 Vt, 69; 80
288 (1888); Comer v. Knowles, 17 Am. Dec, 665 (1869); Johnston v.
Kan., 486 (1877); Hays v. Creary, Rily, 13 Ga., 97 ( ); Mead v.
60 Tex., 445 (1888). Haws, 7 Ow. (N. Y.), 882 (1837).
LIABILITY FOR FALSE IMPRISONMENT. 173
the marshal of the district, commanding him to take the body of Samuel
S. Griswold. The process was issued by the Messrs. Sedgwick, as solic-
itors and counsel for Samuel Hill ; and the arrest was made by Reid, as
deputy of Morris, the marshal. As soon as the marshal discovered the
mistake in the name, and before Griswold was taken to prison, he sent for
the Sedgwicks, who immediately assented to the discharge of Qriswold, he
being present, although it was understood and admitted that lie was the
identical person intended to be arrested under the process in question. He
was immediately discharged, and brought suit against the Sedgwicks, Mor-
ris and Reid, all the parties instrumental in his arrest. The process recited
that, by an order made in the circuit court by one of the judges, in a cause
between Daniel S. Griswold, complainant, and Hill, defendant, Griswold
pay to the clerk $1,200 in ten days after notice of the order; and *' whereas
Che said Samuel S. Griswold *' had neglected to comply with the order,
though more than ten days had elapsed, it commanded the marshal to
take the said Samuel S. Griswold, etc., and keep him in custody till he
should perform the order, or until the court should make order to the con-
trary. After the discharge of Griswold the marshal returned the writ
non est, etc. On this evidence the plaintiff was nonsuited.
On appeal Sutherland, J., said : ** Itis apparent on the face of the process
that it did not authorize the arrest of Daniel S. Griswold, the present
plaintiff." . . . " The process was undoubtedly intended as an attach-
ment for a contempt in disobeying a previous order of the court. It re-
cites that previous order, and that the plaintiff had neglected to comply
with it, and therefore commands the marshal to take the body,'* etc.
. . . *'The attachment on the face of it did not authorize the arrest of
the plaintiff, and on that ground alone, I think the action was technically
sustained, and the plaintiff ought not to have been nonsuited." The non-
suit was set aside. Griswold v. Sedgwick et al., 6 Cow. (N. y.\ 4tQ (IS'iO).
Citing Cole v. Hindson, 6 T. R., 234; Shagett v. Clipson, 8 East. 828;
Wilkes V. Lorck, 2Taunt., 400; Crawford v. Satchwell, 2 «tr., 1218; Scan-
dover v. Warne, 2 Camp., 270; Morgans v. Bridges, 1 B. & A., 647; Smith
V. Brookes, 1 Mass., 76; Reynolds v. Corp., 3 Cai., 267. Cited in 7 Kan.,
455; 29 Wis., 588; 2 Hilt., 275; 18 Abb. Pr., 78; 52 How. Pr., 500: 07
Barb., 445; 82 Barb., 279; 28 Barb., 681; 27 N. Y., 65; H. & D., 92; 10
Wend., 347; 7 Cow., 838.
(2) Imprisonment by tarong name,
Evelina H. Scott brought an action for false imprisonment against
Messrs. Ely and White, two justices of the peace, for committing her to
jail under an " act for relief of cities and towns from the maintenance of
bastard children," for refusing to disclose the name of the father of her bas-
tard child. The defendants, in their warrant of commitment, directed that
she be committed to the common jail of the county, there to remain until she
should consent to be sworn and examined, etc. She was arrested and im-
prisoned twenty days. On the trial the arrest and imprisonment was
proved and the warrant of commitment produced, which, after reciting
that Evelina Scott, a single woman, an acknowledged pauper, etc., had
been delivered of a bastard child, and had been brought before them, jus-
174 LIABILITY FOB FALSE IMPRISONMENT.
«
tices, etc., upon complaint of the overseers of the poor, etc., to testify oo
oath who was the father of her child, had refused, commanded the con-
stables of the town to conve y her to the common jail of the county, etc.
On the part of the defendants it was shown that the plaintiff was the
identical person who was brought before them for examination and who-
was directed to be arrested on the warrant issued by them. On this evi-
dence the plaintiff was nonsuited. On appeal, Marcy, J., said: "There is
no doubt but the plaintiff is the person a^i^ainst whom the warrant was is-
sued, and the defendants gave express directions to the constables to take
her on it ; but the warrant was no authority for so doing. The name of
the plaintiff is Evelina and the warrant is against Emeline. There can be
no pretense that the name is the sarue. But it said there is no doubt as to
the person. There was no doubt as to the person in the case of Oris wold
V. Sedgwick, 0 Cow. (N. Y.), 456. There was in that case as in this a mis-
take in the christian name : Samuel was substituted for Daniel. The per-
son to be taken was taken, but he maintained his action for false imprison-
ment by reason of the misnomer. The same point was decided in the case
of Mead v. Haws, 7 Cow. (N. Y.), 832." The motion for a new trial was
granted. See, also, 8 East, 828; 2 Camp., 270; Scott v. Ely and White, 4
Wend. (N. Y.), 555 (1830). Cited in 9 Wond. (N. Y.), 829; H. & D., 92; 28
Barb. <N. Y.), 631; 82 Barb. (N. Y.), 279; 67 Barb. (N. Y.), 445; 42 How.
(N. Y.) Pr., 253; 29 Wia, 589; 7 Kans., 455.
(3) Arrest of person by a wrong name not sustained — When it might he,
Levi Mead sued Haws, Pultney and Culver for a false imprisonment.
At the trial the plaintiff proved that, as he was leading a horse at the car-
1 Inge of a cannon which he was ordered to take from Hudson to Taghanick,
he was arrested by Haws, the defendant, a constable of the city of Hud-
son, who delivered him into the custody of another of the defendants.
Culver. The arrest was by virtue of a warrant in favor of Pultney, the
other defendant.
The defendants offered to prove that the plaintiff, with others, having
taken a brass cannon from the custody of the defendant Pultney, at Hud-
son, and being in the act of carrying it off, Pultney went to the clerk*s
office of the justice's court in Hudson, and took out a warrant command-
ing to *' take the body of John Doe, the person carrying off the cannon,"
to answer Pultney in a plea of trespass. That on this warrant the plaintiff
was arrested, he having been in the act of carrying off the cannon at and
from the time of the taking out the warrant t^ the time of the arrest. On
objection, the judge excluded the evidence.
Verdict for the plaintiff for $85, pursuant to the charge of the jury.
Savage, C. J.: '*The judge was correct. It was decided in Shagett v.
Clipson, 8 East, 828, that the defendant could not justify an arrest of the
plaintiff by a wrong name, though he was the person intended to be ar-
rested, unless it was shown that he was known by one name as well as the
other. There was no offer to show here that the plaintiff was known as
well by the name John Doe as Levi Mead. The same principle is recoj;-
nized in various other cases, and particularly in the late case of Qriswold
T. Sedgwick, 6 Cow., 456, in which the subject was fully examined, and
J
LIABILITY FOB FALSE IHPBI80NHBNT. 175*
the aothorities collected .-and considered by this court The motion for m
new trial must be denied.*' New trial denied. Mead v. Haws, 7 Cow., 88^
(1827). Citing 3 Campb., 270; 8 Campb., 110; 6 T. R., 284; Griswold t;
Sedgwick, 6 Cow., 456. Cited in 29 Wis., 589; 7 Kans., 455; 10 Allen, 404;
42 How. Pr., 258; 10 Wend., 847; 9 Wend., 820; 4 Wend., 558; 1 Wend.,.
132; 9L,C. P. Co., 14<.
(4) The same iubyect continued.
Holmes brought an action against Biyler to recover damages for false
imprisonment. There was a trial by jury, and a verdict and judgment ii>
favor of 'plaintiff. The defendants appealed.
The defendant Biyler was a constable of Polk county during the years
1887 and 1888. On the 20th day of April, 1887, acting as constable, he ar-
rested plaintiff in Dubuque, caused him to be confined in the Dubuque
jail for several hours, carried him home from the jail to the railway train^
handcuffed, and thence took him to Des Moines, where plaintiff was dis-
charged without a hearing. When the arrest was made Biyler had in his>
possession for service a warrant, duly issued by a justice of the peace ia
Polk county, directing the arrest of one Julian Martin, and defendants
claim that all the acts of which plaintiff complains were done by Biyler in
good faith, and under the honest belief that plaintiff was Martin, and thai
as soon as the mistake was discovered plaintiff was released. On the trial
plaintiff waived all claim against defendants except for compensatory
damages.
Robinson, J. : " Appellants complain of the refusal of the court to allow
them to show that Biyler believed plaintiff was the person named in the-
warrant at the time of the arrest, and that plaintiff Answered, substan*
tially, to the description of Martin given by those who knew him. It i»
well settled that ministerial officers or sheriffs and constables act at their
peril in serving judicial process, and that they cannot justify an abuse of
process by showing that they acted in good faith, excepting in mitigation
of damages. Murfree, Sher., §§ 155, 925; Bish. Non-cont. Law, ^'§ 209-
218; Cooley, Torts, 461; 1 Add. Tons, 151; 2 Thomp. Neg., 825; Fields
Dam., g 680; Hayes v. Creary, 60 Tex., 445. The plaintiff had waived
claim for all but actual damages. He was entitled to recover those for
the reason that his arrest was wholly unauthorized by the warrant, and
the good faith of the officer would not exempt him from liability for the*
actual damages caused by his unauthorized act. 8 Suth. Dam., 782; 7
Amer. & Eng. Qyclop. Law, 690." Judgment affirmed. Holmes v. Biyler
et al., 80 Iowa, 865; 45 N. W. Rep., 756(1890).
§ 75. Officer haying process not required to examine into*
extrinsic matters. — An ofBcer, acting in good faith, has the
rij2;ht to rely for his protection upon the process put into hi»
hands. Ho is not bound to go behind that process, and to as-
sume the risk of determining the truth of any extrinsic mat-
ter which would exempt the person against whom the pro-
176 LIABILITT FOK FALSE IMPRISONMENT.
•cess is issued from being arrested or imprisoned under it.^ The
law affords him conclusive protection under a process regular
on its face and issued by a court of competent jurisdiction.'
Application of the law. —
Officer protected by execution issued on a Judgment obtained by fraud,
John 0*Shaughne8sy was sued by name of John Shaughnessy, a name
'by which he was commonly known, upon a promissory note signed by an-
other person of that name, and not by himself. The person who made the
writ knew that O'Shaughnessy was not the person who signed the note, but
intended to have the writ served upon him, and it was served upon him by
another constable and entered in court. Judgment was rendered upon
•default for the plaintiff and an execution issued in due form of law. The
-execution with the proper certificates was delivered to Francis J. Baxter,
an officer, with instructions to take O'Shaughnessy and commit him to
jail. Baxter did so, in obedience to instructions and in good faith, after
ascertaining that the original writ had been served upon the plaintiff, but
knowing that he was not the person who signed the note upon which the
action was brought. After his release 0*Shaughnessy sued Baxter for
false imprisonment.
On this statement of facts, Gray, G. J., said: ** Whatever remedies he
[O'Shaughnessy] might have to relieve him from the judgment and execu-
tion as obtained by fraud, or to recover damages against the person who
fraudulently abused the process of the court, the officer, acting in good
ifaith, had the right to rely, for his protection, upon the process, and was
not bound to go behind that process, and to assume the risk of determining
(the question whether the plaintiff really signed the note upon which the
action was brought, or the truth of liny extrinsic fact which would exempt
him from being arrested or imprisoned on the execution. In the words of
Chief Justice Parker : ' The difficulty in such cases is, to ascertain whether
ahe judgment was or was not in fact rendered against the person who is
taken in the execution ; for if it was, although the person was mistaken,
yet the officer would be justified.' " Judgment for defendant. O'Shaugh-
nessy V. Baxter, 121 Mass., 516 (1877). Citing HoUoweU & A. Bank v.
Howard, 14 Mass., 181, 188.
§ 76. Arrest for felony without warrant— Savage, C.J. —
^'My understanding of the law is that, if a felony has in fact
been committed by the person arrested, the arrest may be
justified by any person without warrant, whether there is time
1 O'Shaughnessy v. Baxter, 121 Wend., 485 (1840); People v. Warren,
Mass., 515 (1877); Laroche v. Wash- 5 HUl, 440 (1843); State v. Weed, 1
brough, 2 T. R.. 787, 739 ( ); Un- Foster, 262 (1850).
derwood v. Robinson, 106 Mass., 296 ^ Underwood v. Bobinson, 106
(1871); Magnay v. Burt, 5 Q. B., 381 Mass., 296 (1871).
<Dav. &Meriv.); Webber v. Gray, 24
LIABILITY FOB FALSE ZMPRISONMElfr. 177
'to obtain one or not. If an innocebt person is arrested upon
suspicion by a private individual, such individual is excused
if a felonv was in fact committed and there was reasonable
ground to suspect the person arrested. But if no felony was
committed by any one, and a private individual arrest with-
out a warrant, such arrest is illegal, though an officer would
be justified if he acted upon information from another which
.he had reason to rel}'^ on." ^
Applioation of the law. —
(1) Arrest without warrant — Irregular process — Liability of officer and
complainant in criminal cases — Abuse of process,
HoUy sued Mix and Clute for false imprisonment. On the trial it ap«
peared in evidence chat Stephen Mix, a brother of the defendant D. Mix,
obtained from E. L. Davis, Esq., a justice of the peace of the county of
Schenectady, a warrant against the plaintiff on a charge of having felo-
niously stolen a ten-dollar bank bUl, Stephen Mix was deputed to serve
the warrant, and went in pursuit of the plaintiff, whom he overtook on the
canal a few miles west of Schenectady ; but, having lost the warrant, he
only required the plaintiff to return, which the plaintiff refused to do.
Stephen Mix then obtained another warrant from J. J. Van Eppe, Esq.,
another justice of Schenectady county, on the same charge, which was
issued against "John Doe,** the name of the plaintiff not being known by
the complainant, and delivered to defendant Clute, who was informed by
Stephen Mix that the plaintiff had stolen a ten-dollar bill belonging to D.
Mix, the other defendant. Clute add Stephen Mix pursued and overtook the
•plaintiff. When they did overtake him, Stephen Mix said he wanted the
plaintiff as a witness in relation to a ten-dollar bill dropped in a tailor's
shop in Schenectady, but Clute, the constable, did not hear this remark.
•Clute arrested the plaintiff and carried him before the justice. Van Epps,
where the plaintiff stated his name, and the justice altered the warrant by
inserting his name, and then redelivered it to the constable. The plaintiff
asked to go to Schenectady to settle with the defendant D. Mix, or to ob-
tain counsel. The justice directed the constable to keep the plaintiff in cus-
tody until the next morning, when he would be tried by a special session ;
but he appointed no time or place for the holding of the session, nor did
he designate or summon any justice to associate with him in holding the
same, nor did the complainant or the constable make any inquiries respect-
ing it. This justice heard no more of the matter. The constable, Stephen
Mix and the plaintiff then proceeded to Schenectady and went directly to
the shop of the defendant D. Mix, who told the plaintiff that the matter
could not be settled, and directed the constable to take the plaintiff to the
justice's office to be tried according to law. The constable, instead of going
to the justice's office, took the plaintiff to a tavern, where he was followed
•by the defendant D. Mix. The constable and the plaintiff went into a
1 Holly V. Mix, 8 Wend. (N. Y.), 350 (1829).
12
178 LIABILITY FOB FALSE IMPBI80NMEKT.
iMick room together. D. Mix did not go with them, but while they re»
mained in the room walked in the hall of the house. The constable came
out of the room and handed to D. Mix $10. Whilst the plaintiff was de-
tained at the tavern, E. L. Davis, Esq., the justice who issued the first
warrant, repeatedly told the constable and D. Mix to bring the plaintiff
before him at his office. He was not brought The constable told Justice
Davis that Mix had got his money and he h's costs, and Mix confessed that
the plaintiff had given him $11 to settle the matter. Evidence was given
in support of the charge that the felony had been committed, but it entirely
failed to establish the fact.
The court ruled (1) that if the defendants acted in concert in taking the
plaintiff into the back room of the tavern, and that they intended to keep
him in custody and to work upon his fears for the purpose of extorting
money from him, they were both liable. (2) That the warrant issued by
Van Epps previous to the insertion of the name of the plaintiff was no
protection to the officer. (8) An officer has no authority to arrest a person
upon a criminal charge without a warrant, and upon information only,
except in cases where there is not time to obtain a warrant and where an
escape would take place unless the arrest was made. That in the case at
bar there being sufficient time to obtain a warrant the constable was not
justified to arrest upon information. The jury found for the plaintiff and
assessed damages against Clute at six cents and against Mix at $25. The
cause came before the supreme court on a bill of exceptions. Savage,
C. J.: *' There is certainly an inaccuracy in the charge of the judge as
stated in the bill of exceptions. The judge is represented as laying down
the broad proposition that a felon can in no case be arrested without a
warrant where thera is time to obtain one. My understanding of the law
is that if a felony has in fact been committed by the person arrested^ the
arrest may be justified by any person without a warrant, whether there is
time to obtain one or not** '* It was not contended on the trial that a felony
had been committed ; an action would therefore lie against Stephen Mix
and not against the constable, Clute, provided the arrest was made with
the bona fide intention of bringing a supposed offender to justice." "The
warrant against John Doe did not authorize the arrest of any other per-
son than John Doe. It was altered by inserting the name of the present
plaintiff, and thus it was a justification for all subsequent regular acts of
all concerned in its execution. At this stage of the proceedings a shade
of suspicion is cast upon the bona fides of the whole transaction. The
justice directs the constable to take the supposed culprit to Schenectady
for trial, but did not attend for that purpose nor take any steps prepara-
tory thereto, nor could in fact any trial be had within forty-eight hours,
unless by the consent of the accused. It was the duty of the justice to
have taken the examination of the person brought before him; instead of
doing so he sent him to Schenectady. When there, the defendant, D.
Mix, directed the constable to take him before Justice Davis, who had
issued the first warrant, and the justice gave the same direction; but the
constable went to the tavern and so did the defendant Mix, and while the
constable was probably frightening the prisoner in a back room, the de-
fendant. Mix, was walking the hall, waiting the result of the conference
^
LIABIUTY FOB FALSB IHPBI80NMSNT. 179
between the constable and the prisoner. He gave no further orders to go
before the justice, and when the constable gave him $10 he said no more
About the impossibility of a settlement. It was in reference to these facts
that the judge charged the jury, that if the object of the two defendants
was to extort money from the prisoner by working upon his fears, they
were liable in this action. In this I think the judge was right. Had the
constable performed his duty by taking the plaintiff before a magistrate
he would have been justified ; but having lent himself, according to the
finding of the jury, to the unholy purpose of oppression, he lost the pro-
tection which the law would give him in the discharge of his official duty
and became a trespasser, and so did David Mix, who acted in concert with
him. There is no reason, therefore, for granting a new trial, • • .
and leave given to the plaintiff to enter a nolle prosequi against Clute.**
Holly V. Mix et al.. 8 Wend. (N. Y.), 350 (1829). Citing 1 Chitty's C5riminal
Law, 15; Samuel v. Payne, Doug., 859; Hobbs v. Branscomb, 8 Camp.,
420. Cited in 9 Wend., 820; 2 Edw.. 103; 40 N. Y., 466; 56 N. Y., 453; 80
N. Y., 499; 5 Lans., 86: 16 Barb., 807; 89 Barb., 263; 61 Barb., 101; 54
Barb., 498; 17 How. Pr., 101; £9 How. Pr., 187; 41 How. Pr., 489; 8 Abb.
Pr., 73; 9 Abb. Pr., 99; 8 Park., 254; 1 Duer, 644; 4 Bos., 125; 9 Bos., 26;
1 Rob., 557, 560; 41 Super., 118; 4 £. D. S., 250; 1 Hilt.. 593; 81 Ind., 424;
58 ni., 264; 61 Pa. St., 858; 19 Am. Rep., 671 ; 49 Ind., 59.
(2) Arrest of a harmless insane person without a warrant at a camp'
meeting.
David Dean, a deputy constable, and acting as such, was present at or
near a camp-meeting, being assigned more particularly to duty immedi-
ately outside of the camp grounds, upon Oak Bluffs, a settlement occupied
by summer residents. Mr, James H. Look, with the intention of attend-
ing the meeting, came on a steamboat to Oak Bluffs landing, the usual
landing for persons going to the meeting. While he was at the Bluffs and
about a quarter of a mile from the camp-meeting, and while he was read-
ing from his bible and talking to a collection of people about him. Dean ar-
rested him and took him to the headquarters of the state police inside of
the camp grounds. He repeatedly demanded to know why he was ar-
rested, to be taken before a magistrate, and to see the complaint if he was
charged with any offense, but no cause was shown or made known to him.
Upon his release he brought an action for false imprisonment against
Dean. On the trial the defendant contended that the plaintiff was insane
and incapable of taking care of himself, etc. He requested the court to
instruct " that if the plaintiff was insane, and the defendant, honestly be-
lieving that the welfare of the plaintiff demanded that he should go from
the crowd to which he was talking to a quiet place near by, took him for-
cibly to such place, using no more force than was necessary for such pur-
pose, and acting from no other motive than a desire to assist and protect
the plaintiff, such act would not be an assault nor an unlawful arrest or
imprisonment." But instead the court instructed the jury that *Mf the
plaintiff was insane, the officer had a right to arrest him, but it would in
such case be his duty immediately to take proper steps to have him com-
mitted to a lunatic hospital, and if he failed to do so, he would be liable
180 LIABILITY FOS FAL8B IKPBI80in(Sirr.
from the beginning for the arrest." The jury found for the plaintiff and
the defendant excepted. On the hearing the supreme judicial court over-
ruled the exceptions. Chapman, C. J., said: "Both the request and the
instructions assume that he was neither dangerously insane, nor disturb-
ing the peace, but was merely insane. The defendant was a deputy of the
state constable, but his office gave him no authority over the plaintiff. He
had only such authority as any private person would have. The right
which every citizen has to enjoy personal liberty is necessarily subject to
some exceptions. Among them are the right to restrain a person who is
fighting, or doing mischief, or disturbing a congregation, or has fallen in a
fit, or is so sick as to be helpless, or is unconsciously going into great dan-
ger, or is drunk, or has delirium tremens, or is so insane as to be danger-
ous to himself or others. In such cases the right to restrain persons has
its foundation in a reasonable necessity, and ceases with the necessity. As
to insane persons who are not dangerous, they are not liable to be thus ar.
rested or restrained by strangers. There is no reason why they should be
thus liable; for it is well known that many persons who are insane,
especially monomaniacs, are as harmless as any other persons, and are not
deemed proper subjects for treatment in a hospital. The request for in-
structions was properly refused.** Look v. Dean, 108 Mass., 116 (1871).
Citing Colby v. Jackson, 12 N. H., 526; Anderdon v. Burrows, 4 C. & P.,
210; Scott V. Wakem. 8 Fost. & Finl., 328; Fletcher v. Fletcher, 28 K J.,
N. S. (Q. B.) 184; In re Oaks, 8 Law Reporter, 122.
(8) Arrest without warrant — Right to a speedy trial — Abuse of power.
Action for false imprisonment brought by Lewis Hopner against John K
McGowan, assistant clerk of the police court. There was verdict for de-
fendant and judgment accordingly. Plaintiff appealed.
Bradley, J. : The plaintiff was arrested without warrant by a member
of the police force of the city of New York and taken into the polico court
in' which the defendant was assistant of the clerk. The defendant and
the police justice of the court testified that the latter was then engaged in
the consideration of some other case before him. The plaintiff, with one
Gh-aham, who, under the direction of the officer, accompanied him to the
court, was taken to the desk of the defendant in the court-room, who pro-
ceeded to take a statement of the case upon which the plaintiff had been
arrested, and while the officer was making his statement the defendant,
apparently annoyed by the interruption of the plaintiff, directed the officer
to put him in a room in which prisoners were kept, and he, with Graham,
was taken there, where he remained a few minutes until the complaint
was prepared, which was made by Oraham against the plaintiff for an
alleged assault and battery. Thereupon the plaintiff was brought before the
court and discharged from custody on giving bail. The cause of the plaint-
iff*8 complaint was the direction upon which he was placed in the room in
which prisoners were usually detained temporarily until their arraignment
before the court. The clerk's assistants for the police courts are appointed
by the board of police justices, and they are to obey the reasonable direc-
tion of the clerks, subject to the proper orders of the police justices and of
such board. Laws of N. Y., 1882, ch. 410, § 1646. It does not concloaively
LIABILITr FOB FALSE IMPBISONMBNT. 181
appear that the defendant, in giving the direction before mentioned, was
acting pursuant to any rules or regulations of the court, or of the board of
police justices, or in performance of any special authority conferred upon
him by his superior. It is urged that his direction to place the plaintiff in
the prisoner's room was wrongful, and charged the defendant as for unlaw*
ful imprisonment of the plaintiff.
If the plaintiff's arrest was without authority, and his custody by the
police officer illegal, it might be seen that the defendant would, by causing
the execution of his direction, be rendered liable as a participant in the
unlawful arrest and custody of the plaintiff. But it must, upon the facts
and exceptions as presented by the record, be assumed that the arrest of
the plaintiff was legal. It was made while he was engaged, apparently, in
the commission of a breach of the peace ; that is to say,.committing an as*
sault upon Grahanou This supported the right of the officer in making the
arrest and in taking the plaintiff before the court, although there may have
been circumstances which would constitute a defense for him upon the
trial of the charge. He submitted to the arrest, and was immediately
taken before the court, as required by the statute. And until he could be
there arraigned it was within the power of the police officer to place the
plaintiff in the prisoners' room without any direction of the court or its
officer. No legal right of the plaintiff was therefore violated by placing
and temporarily detaining him there to await the opportunity to bring his
case in an orderly manner before the police justice. The defendant, as the
assistant of the clerk, had his duties, whatever they were, to perform. In
this instance he was attempting to ascertain the facts upon which to pre-
pare the complaint with a view to the proper presentation for the action of
the court or magistrate upon it of the charge on which the arrest was
made. That service of the defendant, it may be assumed, was legitimately
within his duties, and it was but reasonable that he should have the oppor*
tonity to do it without unnecessary interruption. The cause which in-
duced him to direct the officer having the custody of the plaintiff to take
him to the room referred to evidently did not spring from any purpose to
make his detention oppressive. It was to enable him to obtain the infor*
mation requisite to prepare the complaint for the presentation of the case
to the magistrate. While it is reprehensible to render the custody of per-
sons arrested unnecessarily tmcomfortable, and for abuses in that respect
an action may lie, there must be some discretion in the officer making ar-
rests as to the nature of the restraint which may be essential to the secu-
rity of the custody of prisoners. There was, in the present case, probably
no ground for apprehension that the plaintiff would attempt to escape
from the custody of the officer ; but it is not seen that it could be treated
as any abuse of the power of the police officer to place the plaintiff in the
room as was done; and, if the orderly proceeding in the court-room would
be promoted by the temporary absence of the plaintiff, it was fairly within
the duty of the police officer, without any direction to do so, to remove
him to the place appropriated to the detention of persons in custody await- *
ing the action of the magistrate or the opportunity to have their cases pre-
sented before him ; and as this was legitimately within the authority of
the officer, and could not be treated as an abuse of his power, it is difficult
182 LIABILITY FOB FALSE IMPBISONMEZTT.
to see any ground upon which the action against the defendant as for
false imprisonment could be supported. Judgment affirmed. Hopner ▼•
MoGowan, 22 Jones & 8., 98; 22 N. £. Bep., 558; 116 N. Y., 405 (1889).
(4) Arrest of drunken rioters on view,
Moselej was convicted for the false imprisonment of Tom Broxton, and
assessed a fine of $25. The evidence of the state was to the effect that ooe
Blake, then in company with Broxton, became intoxicated in the town of
Alvarado, of which Moselej was marshal, and committed a disturbance of
the peace, for which the marshal arrested and placed him in confinement;
that en route to jail Broxton appealed to the defendant to release Blake,
offering to provide bond, or to deposit money to secure his appearance be-
fore the mayor's court on the morrow. It was strenuously denied by the
state witnesses that Broxton interfered any further with defendant in the
discharge of his official duties.
For the defense it was proved, in substance, that Blake and Tom Brox-
ton came into Alvarado ; Blake got drunk, used loud and vulgar language,
and was guilty of violent conduct on the public streets ; while Broxton
encouraged him, and declared that the ** town officers could not arrest
them," etc. Finally Moseley and his deputies arrested Blake and started
to the calaboose with him. Broxton took hold of him and undertook to
release him. Failing in this he determined that he should be released on
bond. This the appellant refused and proceeded to the calaboose with his
prisoner, Broxton following. When they reached the calaboose Broxton
again demanded Blake's release, at the same time cursing and swearing
that Blake should not be imprisoned. Finally Broxton entered on the
platform of the calaboose, and took hold of or pushed one of the deputies
back and demanded the release of Blake ; whereupon Moseley and his dep-
uties put him in the calaboose with Blake, and let them remain for about
ten minutes.
On the trial Moseley asked the court to charge the jury, if Blake was
drunk on the street, and was disturbing the peace, it was the duty of de-
fendant, without warrant, to arrest and confine him in the calaboose, and
that Broxton had no right to force or compel defendant to release said
Blake on bond while said Blake was drunk ; that if, while appellant and
his deputies were conveying said Blake to tlie calaboose, the said Broxton
tried to release said Blake by force, then appellant had the right to arrest
and imprison said Broxton.
Willson, J. : It was error to refuse the second special charge requested
by defendant. Said charge is applicable to the facts proved, is a part of
the law of the case, and was not embraced in the general charge given to
the jury. The action of the court in refusing said special charge was ex-
cepted to at the time of the trial, and is presented to this court by bill. For
said error the judgment must be reversed, and the cause remanded for new
trial. We find no other material error in the record. We will remark,
however, upon the evidence, that it impresses us strongly with the belief
that an officer has been convicted of an offense for doing that which the
law not only authorized, but made it his duty to do. Moseley v. State, 28
Tox. App., 409; 4 S. W. Rep., 907 (1887).
J
UABILITT FOB FALSE IMPBISONMBHT. 183
§ 77. Detention by officer under dead^ Toid and yoidable
-process. — As the officer derives his authority from the pro-
cess in his possession, it follows as a legal conseqaence that
the detention of the person against whom the writ issues must
depend for its legality upon the legality of the writ. And
therefore when the process becomes dead or void, and in some
•cases voidable, the officer may become liable for false impris-
f^nment.
The law illustrated. —
Irregular net of officer — Dead process — Batiflcatian.
Adams was attached and imprisoned under a statute of New York for
^refu8in^ or negiecting to perform an award, the statute making the
party *' subject to all the penalties of contemning a rule of court." After
liis release he brought suit for false imprisonmeht against Freeman, who
had obtained the rule of court and caused his arrest. The plaintiff, Adams,
contended that his arrest was irregular because the sheriff had arrested
-him on the attachment after its return day. Upon a demurrer the court
held that it was lawful for the sheriff to have arrested Adams on the re-
turn day, and it not appearing that Freeman gave any directions to have
.him arrested afterwards, the trespass, therefore, if any, was committed by
the sheriff and not by the defendant. It not appearing that the act had
been in any way ratified, judgment was given for the defendant* Adams
V. Freeman, 9 Johns. (N. Y.), 117 (1812). Citing LawsN. Y., vol. 1. 156.
Cited in 2 Denio, 448; 2 Barb., 638; 8 Barb., 857; 42 How. Pr., 258.
<2) Arrest on body execution after satisfaction of the judgment — Notice
to sheriff ,
During the three years ending with December 81, 1882, Bowe was sheriff
of the city and county of New York, and, as such, in August of that year,
received an execution issued against the person of Abraham Davis, which,
after reciting the recovery of a judgment in the marine court by one
Gregg against him and another for the sum of $88.21, costs, cpmmanded
him to arrest the judgment debtors, and to commit them to the jail of
said county until they paid said judgment, or were discharged according
to faw. In September, 1882, the sheriff, by virtue of said execution,
arrested Davis, who furnished the usual bond, and was admitted to the
liberties of the jail. December 81, 1882, said judgment was duly satisfied
of record, and a notice, signed by the attorney who issued said execution,
was delivered to the attorney for Davis, who on the same day caused it to
•be filed in the of&ce of the defendant. The following is a copy of said
■notice, viz. : *' Marine court of the city of New York. Michael Shutter
and Abraham Davis v. Robert Gregg. To the sheriff of the city and county
-of New York: You 'will please discharge from custody the judgment
debtor, Abrham Davis, by virtue of the execution herein. Yours, etc., T.
"Coming McKennie, Defendant's Attorney.*' Indorsed: *' Received Decern-
184 LIABILITT FOB FALSE IMPBISONMBNT.
ber 18, 1882, 12:53 P. M.** The witness who delivered the notice to one of
the deputies of the sheriff in the sheriff's office testified that he gave the*
paper to the deputy and asked him **if that was all rif^ht,** and was an-
swered that it was. He also testified that he left the paper there, and, in
substance, that this was all that took place. The term of the sheriff ex-
pired on the 81st of December, 1882, and on the 6th of January, 1883, bat
within the time allowed by law for the delivery to the incoming sheriff of
jails, prisoners, process, eta, Bo we indorsed upon the bond given by Davis
on his admission to the jail liberties, among other things, the following:
** Marine court. Robert C. Gregg v. Abraham Davis. . . • Abraham
Davis, the above-named de fendant, is hereby remanded to jail ; " and signed
the same as late sheriff. This paper, called a ** Remand Order," was de-
livered by Bowe to a deputy, and the plaintiff was arrested by virtue
thereof on Saturday, January 6, 1883, after 10 o'clock at night. He was
taken through the streets to the door of the Ludlow-street jail, when he
was allowed to go until the following Monday morning upon the payment
of (10 to the arresting officer. On Monday morning he went to the sher-
iff's office, and was informed that if he did not furnish bondsmen by 12
o'clock he would be arrested again, but, upon showing that the judgment
was satisfied, was told that he could go home. The remand order, as
Bowe testified, was issued for the purpose '* of transfer to his suooeesor,"
after notice by mail to prisoners upon the limits to appear with bondsmen,
and give bail to the new sheriff. It did not appear that Davis received a
notice of any kind. After his release Davis sued the sheriff for false im-
prisonment. On the trial a verdict was found for the plaintiff. The de-
fendant appealed.
In the court of appeals the opinion was by Vann, J. : *' Upon the trial of
this action the court in its charge to the jury said : ' The plaintiff offered
evidence to show that, some time before the re-arrest, a notice was given
that you have heard read here, signed by the attorney for the opposite-
party, directing the sheriff to discharge the plaintiff from arrest under the
execution. I will hold here, for the purposes of this action, that that notice
was sufficient to entitle the plaintiff to a discharge, providing that such
notice was left with the sheriff, and not withdrawn, and that is the first
question that you are to determine here.' The defendant excepted 'to so
much of the charge as stated . . . that the notice was sufficient to en-
title the plaintiff to a discharge unless withdrawn.' This exception raises
the question whetlier the notice signed by the attorney who issued the ex-
ecution was, under all the circumstances, effective as a discharge of the
prisoner. . . . Service upon the sheriff of a certified copy of t dis-
charge by the clerk of a j udgment would be notice to him that his power
to collect an execution issued upon such judgment was at an end. Less-
formal notice, while not conclusive upon him, might charge him with the
duty of making inquiry before taking further action, and he would be en-
titled to a reasonable time for that purpose. If, when a judgment is paid
to the attorney, the judgment debtor is in custody, either actual or con-
structive, under an execution issued against his person upon such judg-
mcfnt, it is manifestly within the power of the attorney to authorize the
sher.ff to discliarge him. The power to ii-sue a satisfaction piece implies a
/
LIABILITY FOB FALSE IMPKISONHBNT. 185
power to discharge, and while neither power may be exercised as between
the attorney and his client to tho injury of the latter, third persons, in the
absence of notice to the contrary^ have the right to presume that the power,
when exercised, was authorized by the client, either expressly or by virtue
of the original retainer. When, therefore, the direction to discharge was
served upon the sheriff on the occasion in question, the presumption arose
that it was duly authorized, because it was within the apparent powers of
the attorney. Moreover, if an attorney does an act which would be a vio-
lation of his duty unless a certain condition had first been performeil, it
will be "presumed that such condition was performed. 3 Best, Ev. (Wood's
ed.), 641-645; Hamilton v. Wright, 87 N. Y., 602; Corning v. Southland, 3
Hill, 552. It follows that when the order to discharge the plaintiff from
costody, by virtue of the execution against his person, reached the sheriff,
it was accompanied with the presumption of lawful authority. While this
presumption may not have been conclusive upon the defendant, it required
some action on his part. Having received the discharge without objection,
he was bound to return it or to give notice that he required something
further, or else to act upon it as sufScient. He retained it for twenty-four
days without notice or question, an d then treated it as a nullity. If he
was in doubt as to the authority of the attorney, it waahisduty, under the
circumstances, to say sa If he wanted further proof he should have de-
manded it. If he had any reason to question the sufficiency of the dis-
charge, or for refusing to comply with it, he should have made it known,
so that the plaintiff would have an opportunity to remove the objection.
But he said nothing and did nothing, leaving it to be inferred that he was
satisfied in all respects. Therefore, when he caused the plaintiff to be re-
arrested, under the facts as the jury is presumed to have found them, he
acted at his peril and must suffer the consequences. The judgment should
be affirmed." Davis v. Bowe, 118 N. Y., 55; 64 N. Y. Super. Ct., 520; 28
N. £. Bep., 166 (1889).
(8) Ilosecuivm agairui the body unthout judgment
For issuing an execution against the body and causing it to be executed
on a satisfied judgment, an action for false imprisonment will lie, though
the fact of the satisfaction be not entered of record, and though the execu-
tion have not been set aside for irregularity. The case is the same as if an
execution had been issued without any judgment having ever been recov-
ered. Although the execution being regular on its face will protect the
sheriff, the party and attorney are bound to know at their peril whether
there was a judgment to warrant it. Deyo v. Van Valkenburgh, 5 Hill
(N. Y.), 246 (1843).
(4) False imprisonment lies for an arrest under voidable process.
Dyett obtained an assignment of a judgment which had been rendered
against Chapman, and procured the substitution of an attorney in the
place of the attorney who had obtained the judgment A ca, sa, was then
issued in the name of the substituted attorney and delivered by his partner
to the sheriff, upon which Chapman was arrested September 27 or 28, 1827,
October 81, following, the ca. sa, was set aside by this court, with ooetib
186 LIABILITT FOB FALSE ZBIPBISOmfENT.
Special bail had been put in and "filed in the cause in which the ea. ml was
issued, and the ca. 9a, was sued out without the previous issuing of a JL fa'
In an action of false imprisonment brought by Chapman against Dyett, upon
showing these facts, the plaintiff rested. The defendant moved for a nonsuit,
insisting that as the ca. sa, was voidable only, and not void, the appropriate
action, if any, was case, and not trespass ; and further, that to entitle the
plaintiff to sustain his action, he should have shown that notice of bail was
duly given in the cause in which the judgment was obtained, upon which
a ca, sa. issued. The motion for a nonsuit was denied. The defendants
then proved a notice from the plaintiffs to them, bearing date in 1829, that
he had assigned all his interest in this suit to one Jacob Talman, for a val-
uable consideration ; and they insisted that such notice was evidence of
satisfaction to the plaintiff for his alleged damages, and a bar to his right
to recover; which position was overruled by the judge in his charge to the
jury, who found a verdict for the plaintiff. The defendants moved for a
new trial. In the supreme court it was held that the action would lie for
an arrest under bailable process set aside by the court as irregularly issued
Anew trial was denied. Chapman v. Dyett, 11 Wend, 81; 11 L. C. P
Co., 1012 (1883). Citing 6 Cow., 60a Cited in 5 Hill, 246; 69 N. Y., 241
8 Barb., 19; 6 Barb., 818; 23 How. Pr.. 126; 28 N. Y., 664; 64 N. Y., 156
67 N. Y., 61; 5 Lans., 105; 24 Hun, 82; 19 Barb., 290; 84 Barb., 149;
82 How. Pr., 410; 46 Super. N. Y., 460; 3 Daly, 42; 42 How. Pr., 404; 39
How. Pr., 494; 32 How. Pr., 410; 11 L. C. P. Co., 1012.
§ 78. Abuse of process. — In cases where the process is
valid, the oflBcer may still render himself liable for its abuse,
as where he refuses proper bail,^ uses excessive force, subjects
the defendant to unwarrantable insults or indignities, treats
"him cruelly, denies him proper food, or otherwise subjects him
to oppression or undue hardship,^ or uses the process to ex-
tort money or other thing from the defendant or person
against whom the process issues.'
§ 79.. The law stated by Walker, J. — The officer, the pros-
ecutor, and all other persons concerned, may be indicted for
a conspiracy to procure a criminal process for improper pur-
poses. And if it appear that the officer who executed the
process was engaged in the conspiracy, the writ can afford him
no protection. But it is a grave offense in him to combine with
others to procure criminal process for purposes of oppression,
iBerrier v. Moorhead, 22 Neb., > Mechem on Public Officers, g 771
687; 36 N.W. Rep.. 118(1888). (1800); Halley v.. Mixe, 8 Wend.
«Page V. Cushing. 88 Mo., 523 (N. Y.). 850; 20 Ana. Dec., 702(1829);
(1854); Baldwin v. Weed, 17 Wend. Baldwin v. Weed, 17 Wend. (N. Y.),
(N. Y. ), 224 (1837); Wood v. Graves, 224 (1837).
144 Mass., 365; 59 Am. Dec, 95
(1887).
uABiLrrr fob falsb dipbisonment. 187
fraud or private ends. His duty requires bim to preserve the
peace, to aid in the apprehension of persons charged with
crime, and when he prostitutes his office to the attainment of
private purposes, he is guilty of a violation of duty that de-
serves to be severely punished, and renders bim unworthy of
his office. ITor does it make any difference that he has thus
basely lent himself to such practices for the promotion of the
private interest of another — it is equally corrupt and repre-
hensible. Such deviation from his duty deserves no sympathy
at the bands of courts, and must degrade bim in the estimation
of all right-thinking men. When he receives bis process his
duty is plain and easily understood, and he must be held to
its discharge fairly and in good faith. He has no right to
control the process; be must execute it as required by the law,
and has no power to release a prisoner thus apprehended; nor
can he use the process to extort money from the accused, or
make the writ a means of compelling him to submit to terms
imposed by the prosecutor, and when be does, he violates his
duty, betrays bis trust, outrages public justice, and richly
merits punishment. When he thus acts he arrogates powers
with which no person in the government can be invested, and
instead of aiding in the enforcement of the law, and protect-
ing the community in their rights, he becomes an oppressor.
The law can never tolerate such corruption.^
Applioatioks of the law. —
(1) Chnminal liability for abuse of process.
Slomer and one John Reese were indicted and convicted of false impns-
onment. Slomer procured a warrant from a justice of the peace for the
apprehension of one Frederick Fernharber on a charge of perjury, and
placed it in the hands of Reese, who was a constable, to execute. Upon
the warrant Fernharber was arrested and held in custody until he made
an affidavit, which Slomer desired to use on a motion for a new trial, in
a case on the trial of which Fernharber had previously testified. Slomer
participated actively in procuring the affidavit. After it was made the
constable demanded $2 of Fernharber for his trouble, a portion of which
he paid, and was then permitted to escape. Reese made no attempt to
again arrest Slomer. He returned the warrant indorsed that the accused
had been arrested, but had escaped. The justice refused to receive the
return. On error in the supreme court, the question arose as to how far
1 Slomer v. People, 25 lU., 70 (1864).
188 LIABILITY VOR FALSB DIPBISOimENT.
tfae warrant was a justification to Slomer, wfao procured it to be issued,,
and Reese, the constable, who served it. The conviction was sustained.
Walker, J., in delivering the opinion, said: *'The officer, the prosecutor,
and all other persons concerned, may be indicted for a conspiracy to pro-
cure criminal process for improper purposes, and if it appear that the offi-
cer who executed the process was engaged in the conspiracy, the writ can
afford him no protection/' . . . ''There can be no doubt that a prosecutor
who has reasonable grounds to believe that a crime has been committed,
and that the accused is guilty of its perpetration, is properly protected
from a civil prosecution, although the accused may be innocent of the im-
puted crime. But when there is no probable cause to believe that 2^ is
guilty, and the prosecution is prompted by malice, then the prosecutor is
liable to respond in damages for the wrong he has inflicted. In a civil pro-
ceeding the accused may go behind the affidavit and writ and show want
of probable cause and malice, and that what was in legal form was in fact
a false imprisonment ; and no reason is perceived, where it appears in a
criminal proceeding that it was instituted for the purposes of fraud, op-
pression of any kind, or for any other private object, and not for the pur-
pose of punishing crime, why the mere forms of the law should be permitted
to screen the prosecutor from punishment criminally for sych abuse of legal
process. It would be monstrous to permit the process of the law to be
used for such base purposes." Slomer v. People, 25 HI., 70 (1864).
(3) Officer taJeing prisoner out of the jurisdiction.
One William Morgan was supposed to have been murdered at Fort Niag-
ara, in Niagara county. New York. Sometime afterwards a justice of the
peace of Genesee county, an adjoining county, issued a warrant for the
arrest of one Qreen, who was charged with having been concerned in
the murder, directed to any constable of the county of Genesee, and deliv-
ered to William Rumsey, a constable of that county, who proceeded with
it to the county of Monroe, where he procured it to be indorsed by a jus-
tice of that county, as required by a statute, before he could lawfully exe-
cute it. This thing done he arrested Green, but instead of taking him be-
fore a justice of the peace of Monroe county, or conveying him to Niagara
county, where the murder was committed, as required by law, he carried
him to Batavia, in the county of Genesee, where he was kept in close con-
finement for several days and then suffered to go at large. After his dis-
charge he sued the constable for false imprisonment. A recovery was had.
from which the defendant appealed.
Marcy, J. : The constable could, by virtue of the warrant, only arrest
the plaintiff and take him before a justice of the peace of Monroe county
to give bail, if the offense was bailable, or convey him to the county where-
the offense was committed. ... He had no authority whatever to
carry him to the county of Genesee. He cannot be considered as doing
this by virtue of his office as constable of Genesee county, and therefore
cannot claim the benefit of the act, etc. The judgment was affirmed.
Green v. Rumsey, 2 Wend. (N. Y.), 611 (1839). Cited in 4 N. Y., IW.
UABIUTT FOB FALSE IMPRISONMENT. 189
(3) Object of writ to extort money — No protection.
Alfred Hackett sued Alonzo Eliiig for the conversion of some personal
f)roperty. King claimed the property under a bill of sale, and Hackefct re-
plied that the bill of sale was obtained from him by duress and fraud. On
the trial it appeared that Hackett had been in King's employment, and a
constable arrested him for stealing money from b is employer. The constable
took him to King's house and then to the marshars ofiQce, where after much
talk he executed t he bill of sale and was discharged without being taken
before a magistrate. The warrant was never returned. The court instructed
the jury, ** If the plaintiff was arrested under a legal warrant and by a
proper officer, yet if one of the objects of the arrest was thereby to extort
money or property from him, or to enforce the settlement of a civil claim,
8uch arrest would be false vmprisonment by all who directly or indirectly
procured the same or participated therein for any such purpose." On ex*
ception, the supreme court held that the instruction stated the law cor^
jectly. Hackett v. King, 6 Allen (88 Mass.), 59 (1868).
§ 80. Liability of execotiye ofScers for the defaults of
their deputies. — Executive, ministerial and administrative
officers who are charged with the performance of duties to
individuals are bound to perform those duties in a legal and
proper manner, exercising due care and diligence, and respect-
ing and protecting the legal rights of others. This responsi-
bility cannot be evaded by delegating its performance to an-
other, but, whether the officer acts in person or through the
anedium of another, his legal duties and responsibilities remain
the same.^
The rule is well settled that these officers are liable to all
iMechem on Public Officers, this case Lord Mansfield said:
g§797, 798 (1890); Brown v. Comp- " V^hen rightly understood it wiU
ton, 8 Durn. & E., 424; Abercrombie appear to be a particular exception
V. Marshall, 2 Bay (8. C.)> 90; Lucas to the general rule, and the true in-
V, Locke, 11 W. Va., 81 (1877); Mur- ference from it is that where there
free on Sheriffs, g 60 (1884); Smith's is no exception the sheriff is liable/*
Sheriffs, Coroners & Constables, Ackworth v. Kempe, Doug., 42.
<606 et seq. (1888); Allen on Sheriffs, But the sheriff is not liable for any
81(1845); Harlowe's Sheriffs & Con- extra-official act or misconduct of
stables, ^ 858 (1884). It is laid down his deputy* as where he goes outside
in Bolle, pi. 10, if a man be arrested of the execution of his duty impelled
by the bailiffs of the sheriff and by some private motive or malice of
thereupon he showeth to them a his own. State ▼. Moore, 19 Mo.,
supersedeas to discharge him, and 369; 61 Am. Dea, 563; Mechem on
the bailiffs refuse, and afterwards Public Officers, § 798. See Gwynne
detain him in prison, he shall have on Sheriffs, ch. 11, 588 et seq, (1849);
false imprisonment against the bail- Crocker on Sheriffs, § 869 (1871).
iffs and not against the sheriff. Of
190 UABILITT irOB FALSE IMPBISOHHBNT.
persons to whom they owe such duty for the misfeasance, mal-
feasance or non-feasance of their deputies to whom they con-
fide its performance, so long as the deputy acts by color of
his oflBce.^
§81. Liability of sheriffs for the acts of their deputies.—
The rule under consideration has been most frequently applied
to sheriffs, and their liability for the misconduct, abuses, tres-
passes or neglect of their deputies, acting by color of office, is
perfectly well settled. He must answer for all damages sus-
tained, either by parties to process^ in his hands, or by stran-
geiu* This liability extends not only tp the sheriff, but to the
sureties on his oflBcial bond.* It does not extend, however, to
extra-official acts of the deputy,* nor to the omission of an act
which it was not his legal duty to perform.^
§82. The subject discussed. — In discussing the question
as to whether an action of trespass viet arinia will lie against
a sheriff for the faults of his deputy, where no immediate com-
mand, consent or recognition by the sheriff of the act alleged
to be a trespass appears in evidence, Sewall, J., said: "The
law undoubtedly is, that in trespass all are principals, as well
those who command or procure as those who, being present,
iVan Schaick v. Sigel, 60 How. 464(1811); Mclntyre ▼. Trumbullj 7
Pr., 123 (1880); Welddes v. EdseU, Johns. (N. Y.), 85 (1810); Mason v*
McLean (U. a C. C). 366; Hazard Ide, 80 Vt.. 697 (1868); Seaver v.
V. Israel, 1 Binn. (Penn.), 240 (1808); Pierce, 43 Vt., 235 (1869); Whitney
3 Am. Dea, 488; Forsythe v. Ellis, v. Farrar, 51 Me., 418 (1864); Roes v.
4 J. J. Marsh. (Ky.). 298 (1830); 2 Campbell, 19 Hun (N.Y.), 615 (1880);
Am. Dec, 218; Kennon v. Ficklin, Smith v. Judkins, 60 N. H., 127
6 B. Men. (Ky.), 414 (1846); 44 Am. (1880); GrinneH v. Phillips, 1 Mass.,
Dec. 776; Harrington v. Fuller, 18 529 (1805); Knowlton v. Bartlett, 1
Me., 277 (1841); 36 Am. Dec, 719; Pick. (Mass.), 270 (1832X
State V. Moore, 19 Mo., 869 (1854); •Campbell v. Phelps, 17 Mass., 344
61 Am. Dec, 563; Flanagan ▼. Hoyt, (1821); Norton v. Nye, 56 Me., 211
36 Vt.. 565 (1864); 86 Am. Dec, 675; (1868); Rides ▼. Chick, 59 N. H., 5a
Prusser v. Coots, 50 Mich., 362 (1879); Mechem on Public Officers,
(1883); McNutt v. Livingston, 7 §798(1890).
Smedes & M. (Misa), 641 (1846); «State v. Moore,19Mo., 869 (1854);
Snedicor v. Davis, 17 Ala., 472 61 Am. Dec, 56a
(1850); Wood v. Farnell, 50 Ala., 646 ^State v. Moore, 19 Mo., 869(1854);
(1874); Mechem on Public Officers, 61 Am. Dec, 563.
$5 707 (1890). «Herrington v. Fuller, 18 Me., 377
2 Blunt V. Shepard, 1 Mo., 2l9 (1841); 36 Am. Dec, 719; Knowlton
(1822); Marshall v. Hosmer, 4 Mass., v. Bartlett, 1 Pick. (Mass.), 270 ( );
60 (1808) ; Esty v. Chandler, 7 Mass., Cook v. Palmer, 6 B. & C, 739(1827).
LIABILITY FOB FALSE IMPBI80NHENT. 191
are the immediate agents of the act complained of. There-
fore, in declaring in actions of this nature, it is never neces-
sary to distinguish between the adviser, the companions and
the agent, for each and all are answerable severally and jointly,
and all as principals. That this is the legal effect, where the
proof is of direct command, is not disputed. That an implied
command has the like operation appears by the legal doctrine
respecting masters and servants. It seems to be well established
by ancient and modern decisions that the master is liable for
every act done by the servant in the course of his employ-
ment, the law implying from their relation, and from the
circumstances of the act, that it is done by the procurement
and command of the master. The law views the relation of
a sheriff and his deputies in the same light. In official acts
they are not distinguishable from each other. The relation of
command and agency is more intimate and direct, and the
responsibility of the principal or master for the acts of the
servant is maintained upon stronger reasons of public policy,
and regard to public welfare, than in any case which can be
supposed within the common relation between master and
servant." ^
§ 83. The acts of the deputy for which the sheriff is lia-
ble must be done colore officii. — There is no proposition
better settled than that a sheriff is liable civilitery though not
criminaliter^ for all the acts of his deputies colore officii^ and is
liable therefor in the same form of action as if the acts com-
plained of had been actually committed by himself.^ If the
act from which the injury resulted was an official act, the au-
thorities are clear that the sheriff is answerable; if it was not
an official but a personal act, it is equally clear that be is not
answerable. But an official act, or act done colore officii^ does
not necessarily mean what the deputy might lawfully do in
the execution of his office; if so, no action would ever lie
against the sheriff for the misconduct of his deputy. It means,
therefore, whatever is done under color or by virtue of his
office.*
^Sewall, J.,in Grinnell V. PhiUips, Qratt., 181, and cases cited; James
1 Mass., 530 (1808). v. McCabbiii, 2 Call., 273; CampbeU
«Luca8 V. Locke, 11 W. Va., 81 v. Phelps, 17 Mass.. 245(1821;.
(1877); Sangstei et al. t. Com., 17 'Knowlton y. Bartlett, 1 Pick.
192 LUBILITY FOB FAI^B DCPRISONHENT.
§ 8i. Liability of the sheriff to respond in exemplary dam-
ages for the conduct of his deputy. — A distinction has been
taken between exemplary damages and those which are only
a compensation for the injury sustained. This distinction is
certainly worthy of great consideration by a jury when a
principal, who has been in no way to blame, is sued for the
conduct of his deputy. But in point of law, if the sheriff is
answerable at all he must be answerable for such damages as
a jury, considering all the circumstances of the case, thinks
proper to award. Juries, we regret to say, sometimes find it
necessary to check Ihe rude and improper behavior of the
sheriff and his deputies. The publip safety requires that im-
plicit obedience should be rendered to the officers of justice
in the execution of their duty. On the other hand, the happi-
ness of the people requires that these officers should be influ-
enced by powerful motives to avoid all acts of rudeness and
wanton injury.^
§85. Private persons assisting ofScers — Execution of
civil process — The rule of liability as stated by Savage, C. J.
{1833). — It is certainly true that if an officer be guilty of a
trespass, those who act by his command or in his aid must be
trespassers also, unless they are to be excused by virtue of
some statutory provision. If a stranger comes to the aid of
an officer in doing a lawful act, as executing legal process,
but the officer by reason of some subsequent improper act be-
comes a trespasser ai initio, the stranger does not thereby
become a trespasser;' but when the original act of the officer
is unlawful, any stranger who aids him will be a trespasser
though he acts by the officer's command.' Whenever a sheriff
or constable has power to execute process in a particular
manner, his authority is justification to himself and all who
may come to his aid; but if his authority \i not sufficient to
justify him, it cannot justify those who aid him. He has no
power to command others to do an unlawful act. They are not
bound to obey him, neither at the common law nor under the
<Mas8.), 271 (1S22); Campbell v. > Elder v. Morrison, 10 WencU
Phelpe, 17 Mass., 245 (1S21). (N. Y.), 128 (1838); Girling's Case^
1 Hazard v. Israel, 1 Binney Cro. Car., 446 ( ).
<Penn.), 240 (1808); Campbell v. > Aystead v. Shedd, 12 Mass., 611
Phelps, 17 Mass., 245 (1821). (1815).
LIABILTTT FOR FALSS IMPRISONKBNT. 193
Rtatnte, and if they do obey it is at their peril. They are
bound to obey when his demands are lawful, otherwise not.
The only hardship in the case is, that they are bound to know
the law. But this obligation is universal: ignorance of the
law is no excuse for any one.^
Applications of the bulb. —
(1) Private person coiled upon to assist a deputy sheriff.
The plaintiff, McMahon, was arrested by a deputy sheriff, upon a war-
rant issued against one McManus for an assault with intent to commit a
rape. The defendant, Green, was called upon by the officer to assist him in
making the arrest, and in obedience to such command he accompanied the
officer in making the arrest and in committing the plaintiff to prison. The
plaintiffs name being McMahon instead of McManus he claimed the war-
rant under which he was committed to prison was void, and he brought
an action against Green, who assisted the officer, for false imprisonment.
A verdict being directed for the defendant, the plaintiff excepted. In
disposing of the exceptions Aldis, J., said: "Sheriffs and other officers are
by statute empowered to require suitable aid in the execution of the office
in apprehending criminals. Ck>mp, Stat. Vt., ch. 18, § 11. When the de-
fendant was called upon by the sheriff in this case to assist him in arrest-
ing the plaintiff he was not at liberty to refuse. Nor could he demand of
the sheriff an inspection of the warrant under which he was acting, in
order to see by what authority he was proceeding, and whether in his judg-
ment it would be safe to assist him. It was enough that he was the sher-
iff (or deputy sheriff), a knoum public officer, who called on him for aid
in the execution of his office ; it was his duty to yield immediate obedi-
ence to the demand. The nature of the case requires that there shall be
no delay in rendering the requisite assistance; no nice inquiries into the
written authority of the sheriff to do what he is doing. It is sufficient
that the officer asks for aid in .a matter in which he has by law a right to
ask for aid, and that he is a known public officer. The person who is thus
called upon is protected by the call from being sued for rendering the
requisite assistance. If the officer has no warrant or authority that wiU
justify him he may be liable as a trespasser; but the person who is called
upon for aid, having no means of knowing what the warrant is by which
the officer acts, and who relies upon the official character and call of the
sheriff as bis security for doing what is required, is clearl}' entitled to
protection against suits by persons arrested. The necessity of the case
forbids that he should have the means of knowing or the time to inquire
into the anterior proceediugs.
** Nor docs the law intend that any such inquiry should be tolerated, or
that the man called upon to aid officers in arresting criminals shall stop to
examine papers and to take counsel as to the legality of the process under
which the officers act. This statutory right of an officer to call for aid is
bat an affirmance of the common law. Bac. Abr,, tit. Sheriff, N. 8.
1 Elder v. Morrison, 10 Wend. (N. T.), 128 (1888).
18
194 LIABILITY FOB FALSE IMPKISONMENT.
'' So, too, it is held at common law that thoee who obey the commands of
the sheriff in arresting criminals will be thereby justified through the
sheriff, he acting withoutauthority. HamnL N. P., 68, 65.*' McMahon ▼.
Oreen, 84Vt.,69(1861).
(2) The person responding to the eaUfor assistance does so at his peril
Morrison sued Elder for an assault, etc. The plaintiff, on the premises
of one Milburn, offered for sale two horses at public auction, in pursuance
of a previous notice. Woodward, a constable having in his hands an exe-
cution against Milburn. was present and forbade the sale, claiming the
horses under the execution aod demanding possession of them, which the
plaintiff refused to yield. The constable demanded assistance from the by-
standers; no one obeyed him, and he then called upon Elder by name to
assist him in obtaining possession of the horses, threatening him with legal
proceedings if lie did not obey. The couFtable succeeded in obtaining pos-
session of one of the horses, and then he, Morrison and Elder went into the
stable where the other horse wsp, when a struggle ensued over its posses-
sion, in the course of which Elder jerked Morrison, who had hold of a halter
which was upon the horse, about, elbowed him, and threw him down,
which was the assault, etc., complained of. On the trial it was shown that
the horses in question were not the property of the defendant in the execu-
tion, and it was claimed that the act of the officer in taking the property
was illegal. The jury found for the plaintiff and assessed his damages at
|25, upon which judgment was rendered. The defendant took the case to
the supreme court on error. In pacing upon the question as to how far Elder
was justified in responding to the call of the officer, Savage, G, J., said:
Whenever a constable has power to execute process in a particular manner,
his authority is a justification to himself and all who come in his aid; but
if his authority is not sufficient to justify the officer, it cannot justify those
who aid him. He has no power to command another to do an unlawful
act. Tliey are not bound to obey, neither at common law nor by statute.^
And if they do obey it is at their peril. They are bound to obey when his
commands are lawful, otherwise not. Elder v. Morrison, 10 Wend. (N. Y.),
128(1888). Citing Aystead V. Shedd, 12 Mass., 611; Leonard v. Stacey, 6
Mod., 140. •
§ 86. Priyate persons assisting officers In the execution
of criminal process. — As a very general rule the sheriff and
all other like officers are authorized to call upon private per-
sons to aid in the execution of criminal process. For a re-
fusal to respond when so called upon, the person is liable to
be punished by a fine and sometimes by imprisonment; but the
I By the statute of New York in inhabitant of his county, or as many
force when this decision was ren- as he shall think proper, to assist him
dered, it was provided that when any in overcoming such resistance and in
public officer shall find resistance or seizing and confining the resistor,
have reason to apprehend it in the Persons refusing without lawful
execution of jiny prgce^s deUvered cause are liable to fine and imprison-
to him, iie may command any male ment. 2 R. S., 441, §§ 80, 81.
LIABILITY FOB FALSE IHPBISONKENT. 195
protection afforded him by law is far more complete than
when called upon to assist the ofScer in the execution of civil
process.^
§ 87. Prirate person assisting ofSeer — Execntlon of
criminal process — The rnle of liability. — As a public offi-
cer the sheriff is authorized to call upon citizens to aid him in
apprehending or securing any person for felony or breach of
the peace, and, if any person so required to assist the sheriff
neglect or refuse to do so, he is liable to punishment by fine
or imprisonment. We do not think that a man called upon
by the sheriff is required, at his peril, to ascertain whether
the sheriff has a proper warrant, or whether the offense
charged against the person to be arrested is a felony, or that
he may refuse to act until he is satisfied that the sheriff is
acting legally, or within the scope of his office, in a crim-
inal case. If he were allowed to do this, the object of the
law would be defeated and rendered nugatory in many cases.
There is often no time for inquiry, as action must be imme-
diate. The necessity of the case will not permit the person
thus summoned to stop to examine papers, or take counsel as
to the legality of the process in the officer's hands, or to in-
quire whether any process is necessary in the particular case
where his aid is required. Therefore the person who re-
sponds to the call of one whom he knows to be an officer is
protected by the call from being sued for rendering the requi-
site assistance. The officer may not be acting legally, and
therefore a trespasser; but the person assisting him, at his re-
quest or command, and who relies upon his official character
and call, is protected by the law, and must necessarily be,
against suits for trespasses and false imprisonment, if in his
acts he confines himself to the order and direction of the
sheriff.'
As APPLIOATIOK OF THE LAW. —
Liability of a person assisting in the execution of a aearch'Warrant Uleffdl
on its face.
Rice brought an actioa gtiare dausum fregit against Reed and others.
Oa the trial it was shown that they came to his house and carried away
1 Firestone t. Rice, 71 Mich., 877; 88 N. W. Rep., 885 (1888); McMahan
88 N. W. Rep., 885 (1888). v. Green, 84 Vt., 69 (1861); Reed v.
* Firestone v. Rice, 71 Mich., 877; Rice, 2 J. J. Marsh., U (1829).
196 LIABIUTT F0& FALBE IMPBI80KKENT.
Bome slayeflb The warrant was read in eviderce on the part of the defend-
ants for the purpose of showing that Reed, as constable, summoned the
defendants to assist him, eta It was also shown that they went to Bice's
house, and there found the slaves mentioned in the warrant, and took and
carried them before a justice of the peace. The warrant was issued upon
information, giv^i on oath by one of the defendants, that the slaves, con-
sisting of a woman and four children, had been stolen, eto. ; but it was held
void because it failed to describe the place to be searched, as required by
the law of Kentucky.
On the trial the court instructed the jury that the warrant was illegal
and afforded no defense to the defendants. Judgment being for the pla^it-
iff,. the case was removed to the court of appeals on error.
In discussing the question of the liability of the defendants, who were
summoned to assist the officer, Underwood, J., said: "But here another
question arises. Admitting the warrant to be illegal, were the individuals
summoned by the officer to assist in its execution bound to take notice of
its illegality and to refuse giving their aid. or were they justifia'ble in obey-
ing his commands without inquiring whether his authority was legal or
illegal? The right and power of an officer to summon the citisen to aid in
the execution of precepts to him directed is highly necessary, if not indis-
pensable, to the well-being of society. If all those summoned had to ex-
amine and judge of the legality of the process, and then act upon their own
responsibility, this necessary power in the officer would in practice be par-
alyzed in a great degree. It is laid down in Bacon's Abridgment, title
* Trespass,' 610, that ' Every person who has assisted in the execution of a
writ of fieri facias must, if he justify in an action of trespass under the
writ, unless he acted by the command or at the request of the sheriff or his
officer, show the judgment upon which it issued; for if he acted officiously,
it was incumbent upon hini to take care that the judgment was regular.
But if a sheriff or his officer, or a person acting by the command or at the
request of the sheriff or his officer, justify in this action under a writ of
fl£ri faeuu, it is not necessary for either of those to show the judgment
upon which the writ issued ; because the writ was a sufficient justification
to every one of these, although the judgment was not regular.'
*' It requires but a trivial extension of this doctrine to exonerate those
from actions of trespass who act in good faith when commanded or re-
quested by an officer in assisting to execute process which may not be reg-
ular. There is something which instantly strikes the moral sense aa being
wrong, when told that a citisen is regarded a trespasser for conscientiously
aiding to execute the law as he conscientiously believed at the time. If
officiously he undertakes to do it« then he puts his conduct upon hia own
judgment, and if that deceives him he is responsible; but if he acta under
the command of another, and that other, in cases of the kind, may have
lavrf ul authority to command him, then we think he ought not to be re-
sponsible. In such cases the citiaen obeying the officer should be looked
upon in the light of a servant acting by compulsion, and the party injured
should seek redress against the officer and those who act officiously. Under
this view we think the instruction calculated to mislead the jury in re-
spect to the defendants aummoned by the officer to assist," etc. . . .
Judgment reversed. Rice et al. v. Reed, 2 J. J. Marsh. (Ky.X 44 (t9StS^
LIABILITY FOB FAL8B IHFBI80NHXNT. 197
§ 88. Liability of persons who ^^ ofScionsly/' ete.^ assist
officers in tlie execution of process,— Private persons who
volanteer to assist officers of the law in the execution of pro-
cess, without being commanded or requested to do so, and
those who act '^ officiously " in such matters, must do so at
their peril; and they are bound to take care that the author-
ity of the officer is sufficient and his precept regular. Such
persons put their conduct upon their own judgment, and if
that deceives them they are responsible for their acts and lia-
ble as trespassers.^
§ 8 9. Private persons — Arrests by without process. — The
right of a private citizen to make an arrest without process is
much more restricted than that of a public officer. It is, how-
ever, the right and duty of every citizen, whether public or
private, being a witness to the commission of a felony, to im-
mediately cause the arrest of the offender.^ So a private per-
son may arrest one to prevent a breach of the peace,' but his
right to do so ceases as soon as the aflFray has terminated.^
A private person may also arrest without process one sus-
pected of felony, but to justify such an arrest the proof must
show that a felony had actually been committed, and that the
|)erson making the arrest had reasonable grounds for believing
the person arrested guilty.*
§ 90. Private persons appointed to execute process, —
Private persons are frequently appointed to execute legal
process, in which case the process is usually directed to such
persons by name. The person so appointed will in general
1 Rice et al. V. Reed, 2 J. J. Marsh. Or. Rep., 249; Addison on Torts
(Ky.X 44 (1829): Bacon's Abridg- (Wood's ed.\ 804; Phmips v. TruU,
ment, tit Trespass, 610. 11 Johns. (N. T.). 486 (1814).
sVanderveer ▼. Mattocks, 8 Md., ^Teagardenv.Graham, 8llnd;,422
479 (1852); Lang v. Stole, 12 Ga., 298 (1869); Morley v. Chase, 148 Mass.,
(1852); Hancock v. Baker, 2 B. & P., 896 (1887); Wakely v. Hart. 6 Binn.
260; Tajlor t. Strange, 3 Wend. (Pa.), 816 (1814); Allen ▼. Wright, 8
(N. Y.). 884 (1829); PhiUips v. TruU, Car. & P., 522; Renck ▼. McGregor,
11 Johns. (N. Y.X 486 (1814); Brock- 82 N. J. L., 70 (1866); Stambouse v.
way ▼. Crawford, 8 Jones' (N. C.) L., Elliot, 6 T. R., 315; Allen v. Leon-
433. ard, 28 Iowa, 529 (1869); Chinn v.
s In re Powers, 20 Vt., 261 (1856); Morris, 2 Car. & P., 861 ; Brockway
Knott T. Gay, 1 Root (Conn.), 66 v. Crawford, 8 Jones' L. (N. C), 433
(1774)i (1856).
* People V. Adler, 8 Park. (N. Y.)
198 LXABILTTT FOB FAL8B IMFBI80NMBNT.
have all the powers, in relation to the execution of the process,
of the officer whose duty it is by law to serve the particular
process, and is subject to the same obligations and no other;
and the process, if regular on its face, affords the private per-
son to whom it is directed the same protection it would the
officer whose duty it is to serve it, and no more.
Applications of the law. —
Void process, if regular on its face, protects a private person appointed by
the magistrate to serve it,
Mudrock brought an action for an assault and battery and false imprison-
ment, etc., against William Killips and Joseph EjUips. William Ejllips
made a complaint in writing as follows:
** State of Wisconsin, County of Waukesha, Toion of New Berlin— ss,:
I, William Killips, of the above-named town and county, first being duly
sworn, depose and say that, at the town of New Berlin, Martin Mudrock
(alias) obtained a settlement for house rent by giving me a fraudulent
order, which 1 received in good faith ; otherwise should not have settled
for said rent. Wm. Killifs.
•* Dated New Berlin, April 20, 1885."
Upon this affidavit, E. J. Loomis, a justice of the peace, issued a war-
rant.
The warrant on its face was regular in form, and had upon it the follow-
ing indorsement :
** At the request and risk of the plaintiff, I authorize Joshua Killips to
execute and return this writ. E. J. Looms, Justice of the Peace.*'
The evidence shows that Joshua Killips is the son of William Killips, the
plaintiff named in said warrant, and that William Killips delivered the
warrant to his son, Joshua, to serve upon the respondent, Mudrock; that
he accompanied Joshua to the house of Mudrock to make the arrest f and
that the acts complained of were committed in attempting to execute such
warrant.
The trial resulted in a judgment for (1,000, and the defendant appealed.
In delivering the opinion of the court, Taylor, J., says: "The appellant,
Joshua Killips, was not present when the warrant was issued, and knew
nothing of what transpired before the justice; nor does it appear that he
was informed by his father, or any one else, before he undeitook to exe-
cute the warrant, of the facts which transpired before the justice when it
was issued. There was, perhaps, evidence in the case which would have
justified the court in submitting to the jury the question whether the de-
fendant, Joshua Killips, did not abuse his authority under the warrant in
making the arrest. The circuit judge did not, however, submit that ques-
tion to the jury, but instructed them that ' under the law of the case, as
entertained by the court, the evidence in regard to the complaint and war-
rant before the justice, Loomis, and any justification that that might fur-
nish to these defendants for this assault and battery, are excluded from
the case, upon the ground tliat no offense was charged, and that the de-
LIABILITY FOB FALSB IMP&I30NMENT. 199
f endants are not justified in anything they have done by virtue of the wai'-
rant.' This charge was excepted to by the defendants, and they allege it
as error.
'* The person appointed to serve the warrant has all the powers of a
constable in relation to the execution of the process, and is subject to the
same obligations, and no other. That this warrant would have been a full
protection to a constable who was by law authorized to serve the same,
had it been delivered to such constable and lawfully served by him, there
can be no reasonable doubt. This court has so held in the following cases:
Sprague v. Birchard, 1 Wis., 857; McLean v. Cook, 23 Wis., 804; Stahl v.
(yUalley, 89 Wis., 328; Grace v. Mitchell, 81 Wis., 533-539; Young v.
Wise, 7 Wis., 129; Bogert v. Phelps, 14 Wis., 88; Watkins v. Page, 2 Wis.,
92; Weinberg v. Conover, 4 Wis., 808; Griffith v. Smith, 22 Wis., 046.
Tlie warrant was therefore a justification to Joshua Kiiiips in making a
lawful arrest of the respondent by virtue of it ; and instead of charging
the jury that it was not to be considered by them as of any consequence
in the action, the court should have instructed the jury that it was a jus-
tification to Joshua Killipe, unless they found from the evidence he had
abused his process and exceeded his authority in executing, or attempting
to execute, the same. Upon the question as to the abuse of the process
we do not think the evidence was so conclusive against the defendant,
Joshua Killips, as to justify the court in deciding, as a matter of law, that
he had abused his process and exceeded his authority, and that his writ
did not, therefore, protect him. For the error in the instruction of the
circuit judge affecting the rights of the appellant, Joshua Killips, the
judgment of the circuit court is reversed as to him, with costs, and as to
William Killips the judgment is affirmed, with costs, and the cause is re-
manded for a new trial as to the said Joshua Killips." Mudrock v. Kil-
lips, 65 Wis., 622; 28 N. W. Rep., 66 (1886).
§ 91. Detention nnder erroneous or void orders of court —
Protection to persons acting under them, etc. — The rule
upon this subject, to be deduced from the authorities, seems
to be, that when a court is called upon to adjudicate upon
doubtful questions of law, or determine as to inferences to be
drawn from circumstances reasonably susceptible of different
interpretations or meanings, and calling for the exercise of the
judicial function in their determination, its decision thereon
does not render an order or process based upon it, although
afterwards vacated or set aside as erroneous or void, or sub-
> ject the party procuring it to an action for damages thereby
inflicted. Where the jurisdiction of the court is made to de-
pend upon the existence of some fact of which there is an
entire absence of proof, it has no authority to act in the prem-
ises; and if it, nevertheless, proceeds and entertains jurisdic-
tion of the proceeding, ail of its acts are void, and afford no
200 LIABILITY FOB FALSE IHPBISONMENT.
justification to the parties instituting them as against parties
injuriousl}' affected thereby. But if the facts presented to
the court call upon it for the exercise of judgment and reason,
upon evidence which might in its consideration affect different
minds differently, a judicial question is presented, which, how-
ever decided, does not render either party or the court making
it liable for the consequences of its action.^
Application of thk law. —
(1) Liability of person acting under erroneous or void orders of eourt
FiBcher brought aa action for false imprisonment against G^rge F. and
J. C. Langbein, who were attorneys for one John Raab, the defendant in a
suit in the New York common pleas in which Fischer was the plaintiff.
As such attorneys they procured an order and commitment of Fischer for
contempt in refusing to obey an order of the court requiring him to pay
the fees of tlie referee to whom the facts in the case had been referred.
On the trial the plaintiff was nonsuited. He appealed.
Ruger, C. J. : It cannot be disputed but that an attorney who causes
void or irregular process to be issued in an action, which occasions loss or
injury to a party against whom it is enforced, is liable for the damages
thereby occasioned. In the case of void process the liability attaches when
the wrong is committed, and no preliminary proceeding is necessary to va-
cate or set it aside as a condition to the maintenance of an action. Process,
however, that a court has general jurisdiction to award, but which is irreg-
ulfur by reason of the non-performance by the party procuring it of some
preliminary requisite, or the existence of some fact not disclosed in bis
application therefor, must be regularly vacated or annulled by an order
before an action can be maintained for damages occasioned by its enforce-
ment. Day V. Bach, 87 N. Y., 50. In such cases the process is considered
the act of the party, and not that of the court, and he is therefore made
liable for the consequences of his act. Void process is such as the court
has no power to award, or has not acquired jurisdiction to issue in the
particular case, or which does not, in some material respect, comply in
form with the legal requisites of such process, or which losea its vitality in
consequence of non-compliance with a condition subsequent, obedience to
which is rendered essential. Irregular process is such as a court has gen-
eral jurisdiction to issue, but which is unauthorised in the particular case
by reason of the existence or non-existence of some fact or circac! stance
rendering it improper in such a case. In all cases where a court }ias ac-
quired jurisdiction in an action or proceeding, its orders made or judgment
rendered therein are valid and enforceable, and afford protection to all
persons acting under them, although they may be afterwards set aside or
reversed as erroneous. Simpson v. Hornbeck, 8 Lans., 53. Errors com-
1 Fisher v. Langbein, 103 N. Y., ler v. Adams, 7 Lans., 133; 52N. Y.,
84; 8 N. E. Rep., 251 (1886); Marks v. 409 (1873); Williams v. Smith, 108
Townsend, 97 N. Y., 599 (1885); Mil- E. C. L., 596.
LIABILITT FOB FALSE IHPBISONMBNT. 201
mitted bj a court upon the hearing of an action or prooeeding whloh it is
authorize 1 to hear, but not affecting any jurisdictional faot, do not in-
validate its orders, or authorize a party to treat them as void, but can be
taken advantage of only by appeal or motion in the original action. Day
V. Bach. 87 N. Y., 66.
There is no claim made that the order and commitment under which the
imprisonment complained of in this case was effected was void, or even
irregular, except for the alleged erroneous determination made by the spe-
cial term upon the merits of the application. This determination consisted
in holding that a contempt had been committed by the plaintiff, while,
upon appeal, this court held otherwise. All of the facts constituting the
alleged contempt were undisputed, and were presented to the special term
for its consideration upon the hearing. After hearing the parties it de-
cided that a contempt had been committed, and ordered the imprisonment
complained of. It was conceded on that hearing that the plaintiff had dis-
obeyed an order of the court, and the only question presented for its con-
sideration was whether such disobedience '* defeated, impaired, impeded
or prejudiced " a right or remedy of the defendants. Upon the appeal to
this court it was held that the case did not clearly show that any right or
remedy of the defendants had been defeated, impaired, impeded or preju-
diced by the disobedience alleged, and the order adjudging the plaintiff
guilty of a contempt was for that reason reversed as erroneous. Fischer v.
Raab, 81 N. Y. 285. A simple question of law was thus presented to the
court as to whether all of the elements constituting the offense of contempt
appeared on the application for the commitment. Whether they did or did
not in no sense constituted a jurisdictional question. The court concededly
had jurisdiction of the parties and the subject-matter of the application,
and we think authority to determine whether a contempt had been com-
mitted or not; and the question for its consideration was whether the facts
of the case brought it within the statutory definition of a contempt. An
erroneous decisi on of that question in no sense affected the jurisdiction of
the court over the subject-matter of the application. In a similar case it
was said by this court that the fact that a justice of the peace *' had juris-
diction of the person of the plaintiff, and of the subject-matter then pend-
ing, did not give him judicial authority to adjudge her guilty of a con-
tempt, and to imprison her therefor. To have that authority there must
have arisen before him facts which gave him power to consider of the
question whether there had been a ccmtempt committed by her. When
facts arose which gave him that power, he had a right to adjudicate upon
them, and is not liable to an action, though he may have held erroneously
as matter of law.'* Rutherford v. Holmes, 66 N. Y., S70.
In the present case the court made an order, upon the application of the
plaintiff, referring a certain disputed question of fact to a referee to hear
and determine, and, in case such report was against the plaintiff, that he
should pay the referee's fees incurred thereon. The plaintiff cannot ques-
tion the x'^alidity of this order, for it was made at hlM request and upon his
stipulation to pay the fees in the event provided for. Tlie order was there-
fore lawful and such as the court had a right to make under the circum-
Btandeo, The report of the referee being against the plaintiff, he was
202 LIABILITY FOB FALSE IMPBISONMENT.
requested to pay the fees and take it up ; but this he neglected and refused
to do. For this refusal he was adjudged guilty of contempt. The disobe-
dience of its order by the plaintiff gave the court jurisdiction of the subject-
matter, and called upon it to determine whether a contempt had been
committed or not. Tlie right to adjudicate upon this question did not de-
pend upon the fact whether the plaintiff was guilty of a contempt, but
whether a case had been made for calling for an adjudication upon that
question. The power of the court to entertain jurisdiction of an action or
proceeding does not depend upon the existence of a substantial cause of
action, but upon the performance by the party of the prerequisites autho]>
izing it to determine whether one exists or not.
It seems to us that the case of Williams v. Smith, 108 E. 0. L., 596, is
undistinguishable in principle from this. As concisely stated by Justice
Erie, it was as follows: "The master of the rolls decided on the facts
that Williams was guilty of contempt in not obeying the order. Such is
the judgment of the master of the rolls on the very facts between the par-
ties. The legal inference which that learned judge drew from the facts
which were presented to him on the part of Williams was that he was guilty
of a contempt. Upon appeal the lords justices were of opinion that the
master of the rolls came to an erroneous conclusion, and they reversed his
decision. That is a totally different thing from setting aside the attach-
ment for irregularity in the proceedings." It was held that the decision of
the master of the rolls was a judicial determination that protected the par-
ties acting under it, as well as the officers making it. The judgment is
affirmed. Fischer v. Langbein, 103 N. Y., 84; 8 N. £. Rep., 251 (1886).
(2) Imprisonment under order of court afterwards vacated^
A county judge was prosecuted for false imprisonment for granting an
order of arrest, which was afterwards vacated upon the ground that the
affidavit upon which it was founded did not show a sufficient cause for
arresting the party. It was held, however, that the *' decision and the
order protect the party applying for it, and the attorney and all persons
acting in obedience to the order;" that the affidavit presented '* a state of
facts which called upon the officer to pass judicially upon the question,
and to determine whether a case for an order was made out or not." '*It
presents, to say the least, a colorable case, and that is enough to protect
the officer who issued it." It was further said ** that the doctrine that the
' judicial officer is protected whenever he has jurisdiction, and enough is
shown to call upon him for a decision, even though he err grossly, and
even intentionally, has long been firmly established. Upon the same prin-
ciple of public policy, parties who in good faith institute the proceedings,
and act under and in accordnnce with judicial determination, should be
protected from accountability as trespassers whenever the officer is enti-
tled to protection." Landt v. Stitts, 19 Barb., 283; Fischer v. Langbein, 103
N. Y., 84; 8 N. E. Rep., 251 ; Marks v. Townsend, 97 N. Y., 509.
The defendant was prosecuted for false imprisonment in procuring an
attachment for contempt against a third party for not appearing before
the judge in supplemental proceedings in obedience to an order requiring
LIABILITY FOB FALSE IMPBI80NMENT. 203
him to do so. The affidavit upon which the attachment was issued was
held upon appeal to be defective, and not to show the existence of the con-
tempt alleged. It was held, however, that it constituted a protection as
well to the officer issuing it as to the party procuring it ; that the officer
issuing the attachment had '* jurisdiction of the matter, and acted judi-
cially in making the order, and it is entirely clear that he cannot be made
answerable as a trespasser for an error in judgment." Miller v. Adams, 7
Lans.. 183; 52 N. Y., 409; Fischer v. Langbein, 108 N. Y., 84; 8 N. E. Rep.,
251.
(8) Detention under a rescinded order.
Coffin, who had been tried and convicted for malicious mischief and
sentenced to ten months' imprisonment in the house of correction, after
serving his time brought an action against Gardner, the sheriff of Nan-
tucket, for false imprisonment. It appeared that after his conviction, the
sheriff, by order of the court, took him into custody in order to execute
the sentence, but the court on the same day, for the purpose of allowing
Coffin to be called as a witness without sending to the house of correction
for him, rescinded the order and directed the sheriff not to detain him.
On the day following the court ordered the sheriff to execute tlie original
sentence, which was accordingly done. The plaintiff claimed that the
power of the court was exhausted by the final sentence, and his arrest by
the sheriff in carrying the sentence into execution, and the subsequent di-
rections of the court, were not binding. His release by the sheriff he
claimed was voluntary and the subsequent commitment illegal. On the
trial the jury found for the defendant, and, on exception, it was held that
the defendant was not liable unless he detained the plaintiff in custody
after the court directed him not to detain him, and before he was again
ordered into custody. Coffin v. Gardner, 1 Gray (67 Mass.), 159 (1854).
§ 92. Proseeutors in criminal cases — Liability — Tlie
law stated by Walker, J. — ^^ There can be no doubt that
a prosecutor, who has reasonable grounds to believe that a
crime has been committed and that the accused is guilty of its
perpetration, is properh' protected from a civil prosecution,
although the accused may be innocent of the imputed crime.
But when there is no probable cause to believe that he is
guilty, and the prosecution is prompted by malice, then the
prosecutor is liable to respond in damages for the wrong in-
flicted. In a civil proceeding the accused may go behind the
affidavit and writ and show want of probable cause and mal-
ice, and that what was in legal form was in fact a false impris-
onment. And no reason is perceived, where it appears in a
criminal proceeding that it was instituted for the purpose of
fraud, extortion, oppression of any kind, or for any other
private object, and not ^or the purpose of punishing crime,
204 liabujtt fob false impbisonhbnt.
why the mere form of law should be permitted to screen the
prosecutor for punishment criminally for such abuse of legal
process. It would be monstrous to permit the process of law
to be used for such base purposes. And it will hardly be
said that the commission of perjury, to start the prosecution,
can sanctify such turpitude. If the end were attained by
direct force it would amount to imprisonment, and if money
should be obtained by force it would amount to robbery. Can
it then be said that, because the same purpose is accomplished
by the forms of law, the transaction is justifiable? While the
law will protect the prosecutor who acts in good faith on
probable cause, it should never permit its process to be pros-
tituted to such unwarranted purposes. It is not the design of
government to permit the citizen to use the form of the crim-
inal law for the redress of private grievances. Ample civil
remedies are afforded for that purpose." *
Applicatkjns of thb law. —
(1) Proaecuior'a conduct reoklesa, unreasonable, and witJiout probable cause.
On March 1, 1871, some money was stolen from a money drawer in
Wall's shop in Gharlestown. Shortly before the theft was discovered, a
stranger came in, purchased a cigar and changed a bill for $20. About the
same time another stranger came around in the rear of the shop and
attracted Wall's attention by making inquiries about some real estate.
Five days afterwards Wall saw a man in Boston, and, supposing him to be
one of the persons concerned in the larceny, followed him until he stopped
to talk with a friend. Wall then accosted a police officer and told him that
he identified the man as the person who got the bill changed and robbed
his till. He requested the officer to arrest the man, which he did. The
officer requested the man under arrest to walk with him to the police
station; this he did, Wall going along with them. Upon reaching the
station Wall repeated his statement to the captain in charge, adding that
the man was a smart thief and that a description of him could be found in
the office of the chief of police, which he had left there. The captain ex-
amined the description, and noticing a marked discrepancy between it and
the man under arrest, he sent for two of his acquaintances who knew the
man, and they represented him to be a respectable citizen, and requested
Wall to enter into an examination at once. Wall declined to answer any
questions, but said he **knew his man," that ** he was sure of his man ; "
'* he was the smartest thief in the state." The captain told Wall it was a
case of mistaken identity. The man, whose name was Mitchell, was de-
tained until Wall went to Gharlestown and returned with officers who
arrested Mitchell and took him back to Gharlestown, where be was put
1 Blomer v. People, 25 HI. 70 (I860),
— H
UABILTrY VOB FAL8V XHPBI80NMENT. 205
into a cell at the police station, searched, and his money and watch taken
from him. Wall again repeated his former statements. Afterwards
Mitchell's friends arrivedi and, being known to the officers, assured them
that he was a respectable oitieen, and he was taken from the cell and al-
lowed to sit in the marshaPs office. Then two witnesses who had seen the
stranger in the shop called, and upon inspecting Mitchell, one said to Wall,
*' he is not the man,** but the other thought he was. Wall persisted in
saying he knew his man and would rather give |10,000 than hare him get
away. Towards night MitcfaelFs friends procured bail and he was released.
On his appearance the next morning no complaint was made against him.
the witness who thought he identified Mitchell, upon further examination,
being satisfied he was mistaken. Wall requested that he be discharged,
which was immediately done. No warrant was ever issued, there was no
examination or trial. Upon his release Mitchell sued Wall for false im-
prisonment. He received |l,600 for the imprisonment, and $500 on a
second count for slander. On exceptions the supreme judicial court held :
'* The defendant justified his proceedings on the ground of an honest mis-
take, resulting from an alleged strong personal resemblance between the
plaintiff and the real offender. But the existence of any such resemblance
was a controverted fact. There was evidence also which had some tend-
ency to show that such information was furnished as to the plaintiff's-
good character, and that such circumstances were pointed out as to his
personal appearance, as to render it doubtful, as a matter of fact, whether
the defendant was acting upon such reasonable grounds of belief as to
justify him for the purposes of this trial, or whether, on the other hand,
his conduct was reckless, unreasoqable, and without probable cause. This
was a question of fact, and was submitted to the jury with proper instruc-
tions.'' Mitchell V. Wall, 111 Mass., 492 (1878). Exceptions overruled.
(2) lAdbUity of proseoutor far illegal act of juBttee^-^ False imprisonment
Langenberg & Stoener went before a justice of the peace, and made a
complaint that ^oerger had bought some sliingles or boards of one Jarvis,
who had been making them from their timber. That the boards belonged
to them, and were on Boerger^s premises. After some conference, the jus-
tice furnished them blanks for a warrant, and a complaint, which they
filled out, and, having 8woi*n to the complaint, the justice issued the war-
rant. The complaint alleged that on or about the 22d of July, 1886, Simon
Boerger, or some person unknown, bad received, taken and carried away,
from the premises of Langenberg & Stoener in Boulware township, in the
county of Gasconade, the following goods and chattels, the property of
Langenberg & Stoener ; that is to say, one lot of oak shingles, between five
and six hundred, made by Sam Jarvis out of timber belonging to Langen-
berg & Stoener, for the erection of a dwelling-house on the premises of
Langenberg & Stoener ; and they had reasonable ground to suspect, and
did suspect, that they are concealed on or about the premises of Simon
Boerger, in the township and county aforesaid. The search-warrant, after
other recitals, commanded the officer to search the premises for the prop-
206 LIABILITY FOB FAL8B IHFBIfiOKMSKT.
erty, nnd, if found, to bring the same, and alBo the said Boerger. before
some justice of the peace of the county, to be dealt with according to law.
The warrant was returned " executed by searching the premises of Boerger,
and finding there the shingles, and by bringing the body of Boerger into
court." The justice's docket shows that a few days later Boerger was dis-
charged from arrest, by request of the prosecuting attorney, at the cost of
Langenberg & Stoener. Then Boerger brought an action against his pros-
ecutors for false imprisonment, eta On the trial, at the close of his testi-
mony, the court directed the jury to find for the defendants, and, denying
a motion for a new trial, the plaintiff appealed.
In reversing the ruling, Barclay, J., said : 1. An action will lie for caus-
ing the issuance of a search-warrant maliciously, and without probable
cause. To sustain it, the plaintiff must establish, among other things, want
of probable cause on the part of defendant with reference to the action
actually taken by the latter in the matter complained of. But a person
making complaint to a magistrate is not necessarily answerable for what-
ever judicial action the magistrate of his own motion may take in the
premises. If the magistrate misconceives the proper remedy, without the
suggest ion or intervention of the complainant in that particular, the latter
is not liable for such error on the part of the former. The complainant is
only responsible for the complaint he actually makes, and for such action
thereon as may be lawful and proper in view of it. In the present case,
however, the complainants not only made affidavit of facts before the jus-
tice, but wrote out the warrant ready for his signature. This tended to
show their participation in the issue of the warrant, irrespective of the
statements in their affidavit. The warrant, in so far as it commanded
the arrest of plaintiff, was illegal ; the affidavit on which it was founded
being in many respects insufficient to support it The circuit court ex-
cluded that part of the warrant when offered at the trial, but it should
have been admitted as directly tending to sustain the cause of action for
false imprisonment. Evidence tending to show that the plaintiff was re-
strained of his liberty, at defendants* instance, by reason of process which
the magistrate had no authority to issue in the premises, is suflScient to
sustain a count for false imprisonment. Neither malice nor want of prob-
able cause need to be proved to support such an action. Under the present
law of Missouri, a search-warrant, properly, should not contain a clause of
arrest. The function of such a warrant is to cause a search to be made by
an officer at a particular place for personal property stolen or embezzled,
and to secure the production of the. property, if found, before the magis-
trate. If the facts stated in the sworn application for it also constitute a
charge of crime, the magistrate may issue a separate warrant of arrest,
though in that event the insertion of such order in the search-warrant
would be a mere irregularity, not vitally affecting the legality of the pro-
cess. But in the case at bar the facts stated in the preliminary affidavit
were wholly insufficient to justify the arrest of plaintiff. Hence there was
evidence to go the jury upon the count for false imprisonment. Boerger
V. Langenberg, 97 Mo., 890; 2 8. W. Rep., 228 (1889).
LIABILITY FOR FALSE IMPEISONMKNT. 207
(8) Ratification byproseeutor of an iUegal arrest in a eriminal case.
In an action by a husband and his wife for a malicious prosecution of the
wife, it appeared that the defendant made a complaint on oath before a
trial justice, accusing the wife of larceny, and the husband of inciting and
commanding the wife to the crime, and praying for the arrest of the hus-
band ; that the warrant was for the arrest of the husband only ; tbat both
were brought from another state on a requisition from the governor of Mrs-
sachusettSy and were arrested and brought before the justice ; that the wife
was required to plead to the complaint, to answer further thereto at a subse-
quent day, and to give surety for her appearance for that purpose, and in
default of bail was committed to jail, and on the day fixed for trial was
discharged, being found by the magistrate to be not guilty. The jury were
instructed that the making of the complaint did not in itself render the
defendant liable for the subsequent arrest and imprisonment of the wife;
but that if he intended and participated in her arrest and imprisonment
upon the complaint, the requisition or the warrant, he was, if, and so far
as, her arrest and imprisonment were caused by such acts of his, done
with malice .and without probable cause, liable for damages therefor in the
action. The plaintiff recovered, and, exception being taken, it was held
that the action could be maintained; that the instruction was correct.
Qibbs ▼. Ames, 119 Mass., 60 (1875).
§ 93. Prosecator mast act in good faith. — Where a crim-
inal prosecation is commenced under circumstances which
make it apparent that the prosecutor had some collateral pur-
pose in view, rather than the vindication of the law, as where
a prosecution was commenced in order to compel the surrender
of notes about which there was a dispute, a finding of a want
of probable cause will be fully satisfied.^
§ 94. The prosecutor is not required to act from public
motives. — To constitute probable cause for a criminal prose-
cution the law does not require that the prosecutor should act
from public motives. It is sufficient if he has such informa-
tion or knowledge of such facts as would lead a man of ordi-
nary caution and prudence to entertain an honest belief that
the person accused was guilty.'
iPaddoolL ▼. Watts, 116 Ind.» 166; 'Woodman ▼. Presoott (N. H.), 10
18 N. E. Rep., 621 (1888); Kimball ▼. Atl. Rep., 999 (1890); Eastman v.
Bates, 60 Me., 308; Brooks v. War- Keasor, 44 N. H., 618 ( ).
wick, 2 Starkie, 898; McDonald v.
Rooke, 2 Bing. N. C, 319.
20s liability fob false iicpbisonmsnt.
An applioation of tab bulb. —
M<jUiciott8 prosecution^ Probable cause — Prtmetutor need not act from
pMie moiivee.
The plaintiff claimed that the defendant wilfnllj and maliciously pro*
cured an indictment against him for larceny. Among oth^ things, the
court instructed the jury that* in order to entitle the plaintiff to recover,
the burden was upon him to prove that the prosecution was instituted
maliciously, and without probable cause, and that both these must concur;
that probable cause for a criminal prosecution is such conduct on the part
of the accused as may induce the belief that the prosecution was under-
taken from public motives; that in the present case the plaintiff claimed,
and kifei evidence tended to show, that the defendant obtained the indict-
ment for larceny against him to coerce him and his friends to pay the de-
fendant a private debt which the plaintiff owed him, and not from public
motives, while the defendant claimed, and his evidence tended to prove,
that he acted in good faith, from public motives, and prosecuted the plaint-
iff because he thought him guilty ; that, if the defendant prosecuted the
plaintiff, thinking him guilty, as he claimed, and for the reasons his evi-
dence tended to prove, it would constitute a probable cause ; on the con-
trary, if he did not, but prosecuted the plaintiff to obtain the pay on his
debt, as the plaintiff's evidence tended to prove, it would be without prob-
able cause. The defendant excepted to the charge, and requested the
court to instruct the jury that " probable cause is where such a state of
facts exists in the mind of the prosecutor as would lead a man of ordinary
caution and prudence to believe, or entertain an honest and strong sus-
picion, that the person arrested is guilty." The court denied the request,
and the defendant excepted.
Smith, J. : To constitute probable cause for a criminal prosecution, the
prosecutor need not act from public motives. It is sufficient if he haBSUcli
information and knowle<1ge of such facts as would lead a man of ordinar}"
caution and prudence to entertain an honest belief that the accused was
guilty. The instructions requested were correct, and were approved in
Eastman v. Keasor, 44 N. H., 618, 520. The instructions given required
the jury, in order to return a verdict for the defendant, to find that he in-
stituted the prosecution not only because he thought the defendant guilty,
but that he acted from public motives. For error in the instructions the
verdict must be set aside. Exceptions sustained. Woodman y. Prescott
(N. H.), 10 Atl. Rep., 999 (1890).
§ 96» Persons directing the execution of legal process —
The law stated by Bigelow, J.— Strangers and third persons
are not required, in the exercise of a public duty, to assume the
responsibility of executing legal process. If they interfere of
their own motion, without authority or command from the
oflBcers of the law, to cause a writ or warrant to be enforced,
they act at their peril; and if the process, though regular on
LIABIUTY FOB FALSE DCPBISONHENT. 209
its face and apparently good, was unauthorized, or was issued
by a tribunal having no jurisdiction, or acting beyond the
scope of its power, they are liable for the consequences arising
from the enforcement of unlawful process. It is upon this
ground that a party is held responsible, at whose suit execu-
tion is made, when the officer serving it incurs no liability.
The rule is that if a stranger voluntarily takes upon himself
to direct or aid in the service of a bad warrant, or interposes
and sets the officer to do execution, be must take care to find
a record that will support the process, or he cannot set up and
maintain a justification.^
Applications of thb law. —
(1) Liability of a person catmng the arrest of another.
During the late civil war one Nicholas Roth was suspected of discourage*
ing enlistments in the armj. Several of his neighbors went to the sheriff
of the county and requested him to arrest Roth. This he refused to do with-
out an affidavit. The neighbors then went to one Bradner Smith and got
him to make an affidavit stating that Roth had said in his presence that he
had advised his friends not to enlist in the war. Upon this affidavit, with-
out other authority, the sheriff arrested Roth, and, after confining him for
about twenty days at the county jail, delivered him to the United States
marshal, by whom he was taken to Chicago and confined for some time in
Camp Douglas. After his discharge Roth sued Smith for false imprison-
ment. On the trial it appeared that Roth and Smith had an altercation
on the day the arrest was made, and that hard words passed between
them, but it did not appear that Smith advised the arrest or that he knew
that Roth was to be arrested upon the affidavit. One of his neighbors tes-
tified that he advised him to make the affidavit. Another testified that
he went to Smith to get him to make it, but nothing was said about the
arrest. The sheriff testified that Smith did not advise him to make the
arrest, but it did appear that on the day after the arrest Smith said, while
speaking in reference to the arrest: "I am the man that had him ar-
rested." On the trial the jury found for the defendant. A motion for a
new trial being overruled, the plaintiff took the case to the supreme court
on error. In delivering the opinion of the court, Chief Justice Walker
«aid:
"The last ground urged in favor of a reversal was overruling the mo-
tion for a new trial by the court below. It involves the question whether
the evidence warranted the finding of the jury.
1 Emery v. Hapgood, 7 Gray (73 Small wood, 8 M. & W., 418 ( );
Mass.), 55 (1856); Barker v. Braham, Codrington v. Lloyd, 8 Ad. & EL,
Z Wils., 876; Parsons v. Loyd, 8 449 ( ); Carratt v. Morley, 1 Ad.
Wils., 841 ( ); Brant v. Clutton, & El., N. R.. 18 ( ); Green v,
1 M. & W., 408 ( ); West v. Elgee, 5 Ad. & El., N. R., 114.
14
SIO UABILITT FOB FALSE nfPBI0ONUBRT.
** If defendant couDseled, advised or procured the arrest and imprison-
ment, although not an active participant in the act, he was nevertheless
responsible for its consequences. If, however, he neither advised, coun-
seled, aided nor assisted in the arrest, he should not be held liable.
*' Several persons seem to have advised him to make the affidavit for his
arrest. He seems to have made it, and the sheriff had it when he arrested
plaintiff. Again two witnesses testified that on the day following the ar-
rest and imprisonment of the defendant, they heard defendant say that he
was the man who had plaintiff arrested on the previous day. If this evi-
dence is to be credited, it seems to us that it was an admission that he was
responsible for the act. So far as the record before us discloses, these wit-
nesses stand unimpeached, and unless their manner on the stand satisfied
the jury that they were unworthy of belief, we must believe that the jury
failed to give due weight to this admission. We therefore believe that the
case should be submitted to another jury for their consideration. The judg-
ment below is reversed.'' Both v. Smith, 41 111., 314 (1866).
(2) Liability of person making complaint
44
If a peace officer of his owo head takes a person into custody on sus-
picion, he must prove that there was such a crime committed ; but if he
receives a person into custody on a charge preferred by another of felony
or breach of the peace, then he is to be considered as a mere conduit, and
if no felony or breach of the peace was committed, the person who pre-
ferred the charge alone is answerable." Lord Ellenborough said this rule
appeared reasonable, and that injurious consequences might follow if peace
officers, under such circumstances, were personally responsible, should it
turn out that in point of law no felony had been committed. Hobbs v»
Branscomb, 8 Camp., 420 (1815). Cited in Holley v. Mix, 8 Wend. (N. Y.),
850 (1829).
(8) Inciting officer to make arrest on a void terit.
Under a statute in Massachusetts, justices of the peace had no jurisdic-
tion to try complaints against persons for violating, in Lowell, the lawa
respecting the sale of intoxicating liquors. Notwithstanding this, Timothy
Pearson, Esq., a justice of the peace, was trying one of these cases against
Henry Emery, when Emery committed a contempt For this the justice
issued a warrant directing his commitment to jaiL Ephraim Hapgood,
who made the complaint against Emery for violating the laws respecting
the sale of intoxicating liquors, was present; and after the warrant for
Emery's commitment was issued and delivered to the officer, the officer
having hesitated about serving it, Hapgood told him to serve it; if he did
not he would be prosecuted ; and that if he would serve it, he, Hapgood,
would indemnify and save him harmless against all damages. In conse-
quence of these statements the officer was induced to commit Emery to
jail, which otherwise he would not have done. Emery, after his release,
brought an action against Hapgood for false imprisonment. On the trial
the court instructed the jury that the justice had no legal authority to-
issue the warrant, and that in issuing it he had exceeded his jurisdiction ;
and that the defendant (Hapgood), if be instigated and induced the officer
LIABILITY FOB FALSE IMPBISONM£NT. 211
«
to commit the plaintiff (Emery) thereon when otherwise he would not have
committed him, was liable. The verdict was for the plaintiff^ and bub*
tained. Emery v. Hapgood, 7 Gray (78 Mass.), 55 (1850).
(4) Another case under the Massachusetts statute.
Under the law of Massachusetts (St. 1854, ch. 63) no person could be ar-
rested on mesne process, in an action of tort, unless the plaintiff, or some-
one in his behalf, first made oath that he believed that the cause of actioi)
set forth in the writ was just and true. Francis Adams commenced an
action for slander against Simon C!ody, and caused him to be arrested and
committed to jail without such oath having been made. Cody brought an
action for false imprisonment. On the trial it appeared that Adams, after
procuring the writ as stated, took it to a constable and ordered him to
serve it without delay. The constable, pursuant to instructions, arrested
Cody and committed him to jail. The verdict was for the plaintiff. On
exceptions, etc., the verdict was sustained. Dewey, J. : *' The case shows
an unlawful action on the part of the defendant for which he is properly
sued," etc. Ck>dy v. Adams, 7 Gray (78 Mass.), 59 (1856).
§ 96. A person who merely directs the attention of an
oflScer to a violation of law not necessarily liable. — If one
directs the attention of an officer to what he supposes to be
a breach of the peace, and the officer, without other direction,
arrests the offender, on his own responsibility, for what he as-
snmes to be an offense committed in his presence, the person
who did nothing more than to communicate the facts to the
officer is not liable for false imprisonment, even though the
arrest was unlawful.^ Thus where a policeman made an ar-
rest upon an unfounded charge preferred by a third person
and not committed in the presence of the officer, Lord Den-
man said : " If the defendant directed the police officer to take
the plaintiff into custody, he is liable, in the present action,,
for false imprisonment; but if he merely made his statement
to the constable, leaving him to act or not, as he thought
proper, . • . then the defendant will not be liable, at least
in this form of action."' One who merely states to an officer
what he knows of a supposed offense, even though he expresses,
the opinion that there is ground for an arrest, ^' but without
making any charge, or requesting an arrest, does not thereby
make himself liable in an action for illegal arrest." * Where,.
iVeneman v. Jones, 118 Ind., 41; ^Hopkins v. Crowe, 7 Car. & P.,
20 K. E. Rep., 644 (1889); Taaffe v. 878.
Slevin, 11 Mo. App., (K)7; Lark v. * Burns v. Eh-ben, 1 Rob. (N. Y\
Bande, 4 Mo. App., 180. 655.
212 LIABILITY FOR FALSE IMPSISONMENT.
however, a private person induces an officer to arrest another
without a warrant, and without an offense having been com-
mitted in the view of the officer, he will be liable for false im-
prisonment, unless he justify by showing that the charge was
well founded.^
§ 97. Client's liability for the acts of his attorney.— It
has always been held in this country that an attorney is in-
vested with a large discretionary power, in anything pertain-
ing to the collection of a demand intrusted to him for that
purpose, and that his client must answer in damages if injury
is occasioned by his conduct in the general scope of this em-
ployment. While he cannot discharge a debt or an execution
without receiving satisfaction, he has control of the selection
of legal remedies and processes 'which he may deem most
effectual in accomplishing his object. The confidence re-
posed in him by his client, the supposed ignorance by the lat-
ter of the most appropriate remedies, require this.* Proceed-
ings in the execution are proceedings in the suit which the
attorney is authorized to bring.* It has been held that he may
receive seizin on levy of execution; may discharge execution;
may direct it to be issued in a particular manner; may, in his
discretion, take oxxX, feri facias or capiat ad satijifacienduiriy and
cause defendant to be arrested thereon.* In Oray v. Wa^s^ 1
Oreenl., 257, it is said by Chief Justice Mellen: That 'Hhe
power of attorney does not cease until he has collected the
debt committed to him for collection is admitted." In Heard
^Taaffe v. Slevin, supra; Roes v. Sewer Pipe Co., 129 Mass., 40; Mou'-
LegRett, 61 Mich., 445; 28 N. W. ton ▼. Bowker, 115 Mass., d6;Scbo-
Kep., 695; McGarrahan v. Lavers, 8 reggOT. Gordon, 29 Minn., 867 ;S. C,
AtL Rep., 593; ColletC ▼. Foster, 2 18 N.W. Rep., 194; Clark ▼. Randall,
Hurl. & N., 356; Griffin ▼. Coleman, 9 Wis., 185.
4 Hurl. & N., 264 ; Cooley, Torto » Union Bank v. Geary, 5 Pet, 98-
<2d ed.). 202; Veneman v. Jones, 118 112; Erwin v. Blake, 8 Pet., 18-25;
Ind., 41; 20 N. E. Rep., 644 (1889> Flanders v. Sherman, 18 Wis,. 575;
^Shattuck V. Bill, 142 Mass., 56; 7 Planters' Bank ▼. Massey, 2 Heisk.,
N. £. Rep., 89 (1886); Willard v. 860; Mayer ▼. Hermann, 10 Blatchf.,
Ooodricli, 81 Vt., 597, 600 ; Jenney v, 256.
Delesdernier, 20 Me., 188; Fairbanks ^Pratt v. Putnam, 18 Mass., 863:
V. Stanley, 18 Me., 296; Turner v. Langdon v. Potter, id., 819; Corning
Austin, 16 Mass., 181; Gordon v. v. Southland, 8 Hill, 652;Hyam8 v.
Jenney, id., 465: Caswell ▼. Cross, Michel, 8 Rich. Law, 808.
120 Mass., 545; Carleton v. Akron
LIABILITY FOB FALSE IMFBISOKMENT. 219^
V. Lodge^ 20 Pick., 58, it is said by Mr. Justice Dewey : " It is
within the scope of the power of the attorney to institute all
such further proceedings as are necessary to render the judg-
ment effectual to the creditor for the recovery of his debt.
It has been held to be the imperative duty of an attorney in
the original action, when the body of the debtor was arrested^
to institute a scire facias against the bail, and if he neglect ta
do so he is held responsible." Oiting Dearborn v. Dearhorny
15 Mass., 816.1
Applications of thb law. —
(1) Capias ad satisfaciendum issued after satisfaction of judgment
Luther recovered a judgment in trover against Deyo and others. Id
August, 1887, Deyo obtained a discharge from all his debts on the applica-
tion of two-thirds of his creditors under the provision of a statute of the
state of New York. In 1888 Leland, the attorney of record for Luther, is-
sued a capias ad satisfaciendum at the special instance and request of one
Van Yalkenburgh, he being then the assignee of Luther and owner of the
judgment. Deyo was arrested on the capias. From this imprisonment
Deyo was discharged on the ground that the discharge granted under the
two-thirds act extinguished the judgment as effectually as if it had been
paid or released. Deyo then brought suit against Leland, the attorney,
and Van Yalkenburgh, Luther*s assignee, for whose benefit the capias
had been issued. The facts being admitted on demurrer, it was held that
the party at whose instance the capias was issued, as well as the attorney
who issued it, was liable for false imprisonment, and this whether they
were previously notified of the discharge or not, though the want of no-
tice of the discharge was proper to be shown in mitigation of damages.
Deyo V. Van Valkenburgh, 5 Hill (N. Y.), 342 (1848). Cited in 75 Ind.,
103; 20 N. H., 829; 51 Am. Dea, 227; 11 N. Y., 71; 1 Wis., 468; 60 Am.
Dec, 898; 6 How. Pr. (N. Y.), 258; 2 Abb. Pr. (N. Y.), 475; 4 Duer (N. Y.),
124; 4T. &G., 628.
1 The negligence or act of an at- of judgment ; but this is not so for
tomey's clerk will be imputed to the all purposes. He is, in general, pre-
party for whom the attorney acts, sumed to have authority to cause
Hay ward v. Goldsbury (Iowa), 19 execution to .be issued, and to re-
N. W. Bep., 8(y7. A client is liable ceive the money in payment thereon,
in trespass where his attorney causes Langdon v. Potter, 18 Mass., 820;
property to be taken and sold under Commissioners v. Rose, 1 Desaus.*
an execution wrongfully issued. 469; Gray v. Wass, 1 Greenl., 257;
Foster v. Wiley, 27 Mich., 244. In Brackett v. Norton, 4 Ck)nn., 517;
the last case the court say that *'it Silvis v. Ely, 8 Watts & a, 420.'*
is sometimes said that the authority Shattuck v. Bill, 7 N. E. Rep., 89.
of an attorney ceases with recovery
•fill LIABILTTT FOB FALSE IMPBISOmCEKT.
<(S) Liability of ixttameyfor acts of hi» clerk ^ Clienft liabUUy.
At the trial it appeared that the defendant faroaght an action against the
plaintiff, and, after trial before a jury, reooTered jadgment. The action
was broaght by one Way, an attorney at law, and he condacted the case
at the trial for BilL Execution was issned to said attorney, and was in his
office. One Clarence F. Bldridge, who was, and had been for abont three
years, a clork in general employ in the attorney's office for him, and who
assisted the attorney at the trial, seeing the execution in the office and
deeming it needed attention, went before a master in chancery for Suffolk
county and applied for a certificate, and made affidavit in the form pro-
vided by statute (cL 6, § 17, ch. 163, Pub. Stat. Mass.), and the master annexed
bis certificate authorizing the arrest of Shattuck to the execution as well
as said affidavit of Bldridge. Shattuck was described in the execution as
of Natick, in the county of Middlesex, and it appeared his residence was
there, and that he had no usual place of business in Suffolk county. £1-
drtdge placed the execution in the hands of a deputy-sheriff, and caused
the arrest of the plaintiff, Shattuck, thereon, who was taken before the
same master in chanceiy, when he recognized in the usual form pre-
scribed by law. Eldridge, who was called by the plaintiff, Shattuck,
testified that he made said affidavit, procured said certificate, and caused
the arrest, without the knowledge of or any instruction from said attor-
ney, or from the defendant, Bill. Bill testified that he neither specially
authorized his attorney to make said affidavit nor cause said arrest, and
that he did not give any instruction to any one about making said affida-
vit or procuring such certificate or arrest, and that he had no knowledge
of either of them until after this action was commenced. On the trial
there was a judgment for the plaintiff.
On exceptions Devens, J., said: "While it does not clearly appear from
the bill of exceptions what were the instructions as to the liability of the
defendant for the acts of the clerk of the attorney, as the only ground, ex-
cept that of express authority^ upon which the plaintiff was allowed to
recover, was by reason of the act of the attorney, we must assume, in
favor of the defendant, that the acts of the clerk were treated as his acts
only if done within the general scope of his employment, and that knowl-
edge of or instruction to do the particular act by the attorney was not nec-
essary. This was correct. Details of law business, especially such as
that of the collection of claims, are often not done by the attorney, but in-
trusted to the subordinates, whose acts in the conduct of a business are his,
80 far as civil responsibility therefor, either on his own part or that of his
clients, is concerned.
'* But if this be conceded, the defendant still contends that the attorney
had no authority himself, without express directions, to take the necessary
eteps, and to proceed to arrest the plaintiff. Certain early English cases
have been cited by defendant, to the effect that the authority of an attor^
ney terminates with obtaining judgment and execution. They do not re-
quire comment except to say that they proceed upon the ground that all
the attorney is required to do by his warrant is thus terminated. But the
warrant of attorney is not used in this commonwealth, and in this respect
LIABILITY FOR FALSE IMPBISON.MENT. 215
there is a difTerence between the English practice and our own. Nor would
it appear that obtaining the execution is now recognized in England as the
termination of the duty of the attorney, if it ever was so formerly. In Col-
let ▼. Foster, 2 HurL & N., 806, the principal was held liable for the act of
his attorney in causing a plaintiff to be improperly arrested on oo. sa«, no
order to this effect haying been given by him. In Smith v. Keal, 9 Q. B. '
Div. , 840, it is said by Lord Justice Lindley : ' It was the duty of the
solicitor to conduct the action in the ordinary way ; and, if his client ob»
tains jud<(ment, it is his duty to do such acts as are necessary to obtain
the fruits of his judgment. If a JZ. /a. is necessary, he must issue it, and
make the proper indorsement on the writ ; and if he makes a mistake in
so doing, his client is responsible.' In Butler ▼. Knight, L. R., 2 Ezcb.,
109-118, it is said, in substance, the distinction between powers of attorney
before and after judgment is less marked than formerly. The attorney has
a reasonable discretion in the attainment of the object in view, and the
selection of remedies. It would be mischievous to hold, where there is any
evidence that the authority of the attorney was continued after judgment,
that the attorney had not authority to act according to the exigency of the
case. . • • The principal was properly held liable for the act of hie
attorney." Shattuck v. Bill, 142 Mass., 56; 7 N. K Rep., 89 (1866).
(8) Liability of plaintiffs in execution — Void writ
Winslow, by his attorney, at the term when judgment was recovered
against him by Hathaway et al,, gave notice to him, by an entry on the
clerk*8 docket, of his desire to be present on the taxing of the costs. After-
wards the attorney for Hathaway et al. taxed his bill of costs and gave it
to Winslow's attorney, who marked a large number of items in it and then
gave it to the clerk, informing him that if any of the marked items were
allowed an appeal would be insisted upon. The clerk afterwards, in the
absence of Winslow and of his attorney, struck out a small part of the
marked items, and, on the application of the attorney for Hathaway et al,,
made out an execution and sent it to him, but there being an informality
in it, it was returned for correction. The clerk then made out another ex-
ecution, but before it was taken from his office it was discovered by Wins-
low's attorney, who reminded the clerk of the unsettled question relative
to the costs and the appeal claimed. He objected to the issuing of the exe-
cution. The clerk then said that the execution should not go out of his
office until the question of costs should be settled by the court. In the
clerk's absence it was delivered to one of the plaintiffs in the execution by
the person who attended to the business of the office. Winslow's attorney,
on hearing that the execution was in the hands of an officer, wrote to the
judge before whom the cause was tried, and received a letter from him and
another from the clerk, both in substance stating that the execution must
not be served until the parties should have an opportunity to be heard re-
specting the costs. The letters were read to one of the plaintiffs in execu-
tion before it was served, who. notwithstanding, directed the officer to
serve it. The officer then arrested Winslow, but he paid the execution with-
out being committed to jail. On his release Winslow brought a suit for
216 UABIUTY FOB FALSE 1MPBI80NMENT.
false impriflonment against Hathaway et aL^ the plaintiffs in the ezeca-
tion. On the trial the facts appearing as stated, the court instructed the
jury that the appeal from the clerk was regularly claimed, and that it waa
immaterial whether it was claimed before or after the execution was is-
sued ; that the letter from the judge was equivalent to a mipenedetu; that
the execution was void, not being made returnable according to law ; and
thus they ought to find a verdict for the whole amount paid by Winslow
in discharge of the execution with interest from the time of payment The
jury returned a verdict accordingly. The verdict was sustained. Wins-
low V. Hathaway, 1 Pick. (18 Mass.), 211 (1822).
(4) Execution upon void Judgment — Liability of attorney and plaintiff^'
Procuring falae return.
Farmer sued S. P, Crosby and Oliver Crosby for a malicious prosecution*
The action grew out of that of Crosby v. Farmer, 89 Minn., 305; 40 N. W.
Bep., 71, in which the plaintiff here was the defendant, and Oliver Crosby
the plaintiff, and S. P. Crosby his attorney, and the judgment in which
was set aside as void because there was no service of the summons upon
the defendant. The allegations of the complaint are that in this former
action the present defendants fraudulently and maliciously procured an
officer to make a false return of personal service of the summons, and that,
knowing such return to be. false, they caused judgment on default to be
entered against the present plaintiff, execution to be issued, and his per-
sonal property to be levied on and taken thereon. When the plaintiff
rested, the court dismissed the action as to both defendants. The plaintiff
appealed.
Mitchell, J. : ** An examination of the evidence satisfies us that the
plaintiff entirely failed to prove any malice, fraud or bad faith against
either of the defendants. Indeed, his counsel here admits this to be the
fact as to all proceedings up to and including the entry of judgment. The
only charge of malice or bad faith which be now makes against the de-
fendant is the issuing of execution after notice of the fact that the return
of service of the summons was false, and causing plaintiff's property to be
levied on after the judgment had been set aside. It appears that the exe-
cution was taken out and transmitted to the sheriff of Steele county, with
instructions to collect, two days after the defendant (plaintiff here) had
served notice of motion to have the judgment set aside. But the plaintiff
and his attorney (defendants here) were not bound to accept as true the
ex parte affidavits on which this motion was made. The sufficiency of the
service of the summons depended upon the question whether the legal
residence of Farmer was in Owatonna, where his family was living, or in
8t. Paul, where he boa rded and spent most of his time, and where he was
carrying on business. The judgment still remained, apparently, in full
force, and regular on its face, with the return of an officer showing good
service of summons. In the absence of malice or bad faith, S. P. Crosby
would not be liable for causing an execution to be issued on the judgment
at the instance of his client.
** An attorney is only liable where he institutes proceedings without au-
thority from his client, or where he and his client frauduleLtly conspire to
LIABILITY FOB FALSE IMPBISONMENT. 21T
■
do an illegal act, or where he acts dishonestly, with some sinister view or
for some improper purpose of his own which the law considers malicious^
Bicknell v. Dorion, 16 Pick., 478; Anon., 1 Mod., 209; Dalies ▼. Jenkins*
11 Mees. & W., 745 ; Whart Ag., § 611. It is true that the sheriff of Steele-
county made the levy a short time after the judgment was in fact vacated ;.
but there was no evidence that this was at any directions of either of the
defendants given afterwards. On the contrary, it is quite apparent that
the only instructions to the sheriff were transmitted to him, with the exe-
cution itself, some time before the judgment was set aside. It does not
appear when defendants received notice of the vacation of the judgment ;
but, assuming it was on the day the order was made, all that could b&
charged against them in that regard is that they were negligent in not
more promptly recalling the execution. The action was therefore properly
dismissed as to S. P. Crosby.
" His co-defendant, Oliver Crosby, however, who was plaintiff in the*
other action, occupies a different relation to the matter. Where a creditor
causes an execution to issue upon avoid judgment, he is liable for the dam-
ages arising from the acts of the officer in obedience to the writ. Gunz v.
Heffner, 88 Minn., 216; 82 N. W. Rep., 886. In this instance, although the
judgment was not vacated until March 20th, yet it was jurisdictional ly void-
ab initio; and, moreover, the levy was not in fact made until April 8d.
While the fact that the writ was regular on its face would protect the offi-
cer, and while the attorney who issued it at the direction of his client, in
good faith, would not be liable, and while, if a judgment is merely erro*
neous, and hence valid until reversed, it might protect even the judgment
creditor for acts done under it before reversal (see Peck v. McLean, 8&
Minn., 228; 80 N. W. Rep., 759), and even conceding that the judgment in-
this case would have protected Oliver Crosby for anything done under it until
it was formally vacated, yet, having set the process of the court in motion,
and having placed it in the hands of an officer with directions to execute
it, he is liable for the act of the officer in obedience to it, in making the
levy after the judgment upon which it was issued was vacated. He waa
bound at his peril to see that the execution was recalled or proceedings
under it stayed. Therefore, while the plaintiff failed to establish his alle-
gations of fraud or malice, yet he made out a cause of action for trespass-
against the defendant Oliver Crosby." Farmer v. Crosby et al., 48 Minn«,
459; 45 N. W. Rep., 864 (1890).
§ 98. Corporations^ when liable, etc. — As a general rule,
private corporations are responsible for the torts of their
agents and servants, upon the same grounds and to the same^
er.tent as are individual principals or masters.^ This liability
does not rest in every respect on the rules which constitute-
the basis of the responsibility of the principal for the contract
1 Taylor on Corporations (2d ed.), 162 (1880); Phil. R. R Co. v. Quigly,
§ 835 (1888); Denver, etc., R*y v. 21 How. (U. &). 202, 209(1858); Salt
Harris, 122 U. S., 597 (1886); Fishkill, Lake City v. Hollister, 118 U. S., 25(^
eta, Ass'n v. Nat Bank, 80 N. Y. (1885).
^18 LiABiLrrr fob false impbisonmbkt.
of the agent, which depends altogether upon the question, was
the contract within the scope of the agent's actual authority,
•or of such authority as the other contracting party, acting as
:a careful and prudent person, would be justified in inferring
to exist from the course and general scope of the agent's em-
|)loyraent.^
§ 99. Mnniclpal corporations — The cardinal inquiry —
TThe doctrine stated by Dillon. — "When it is sought to render
:d municipal corporation liable for the act of servants or agents,
a cardinal inquiry is, whether they are the servants or agents
of the corporation. If the municipality appoints or elects
them, and can control them in the discharge of their duties:
•<^an continue or remove them ; can hold them responsible for
the manner in which they discharge their trust; and if those
duties relate to the exercise of corporate powers, and are for
4;he peculiar benefit of the corporation in its local or special
interest, — they may justly be regarded as its agents or serv-
ants, and the maxim of respondeat superior applies. But if,
on the other hand, they are elected or appointed by the cor-
poration in obedience to the statute, to perform a public serv-
ice not peculiarly local or corporate, but because this mode
of selection has been deemed expedient by the legislature in
the distribution of the powers of government, if they are in-
•dependent of the corporation as to the tenure of their office
And the manner of discharging their duties, they are not to
be regarded as the servants or agents of the corporation, for
whose acts or negligence it is impliedly liable, but as public
or state officers with such powers and duties as the statute
-confers upon them, and the doctrine of respondeat superior is
inot applicable." * Hence, on general principles, it is necessary,
in order to render a municipal corporation impliedly liable on
the maxim of respondeat superior for the wrongful act of an
officer, to show that the officer was in fact an ofiScer of the
^nunicipality, either generally or as respects the particular
1 Taylor on Ck)rporation8 (2d ed.). Griggs ▼. Foote, 4 AUen, 195, 197
^835(1888). (1862); Butrick v. LoweU, 1 AUen,
'Dillon on Municipal Ck>rpora- 172 (1861); Kimball v. Boston, 1
<ion8. S 974; White v. Phillipston, Allen, 417(1861); Child ▼. Boston, 4
10 Met. (Mass.). 108 (1845): Hafford Allen, 41, 52 (1862); Morrison t.
-v. New Bedford, 16 Gray, 297 a«60); Lawrence, 98 Mass., 219 (1867).
LIABILITY FOR FALSK IMPmsu^'MKNT. t^ 1 \>
vrron^ complained of, and not an independent officer^ and also
that the wrong complained of was committed by him while
in the legitimate performance of a duty of a corporate nature
which devolved upon him by law or by the direction or au-
thority of the municipality.*
§ 100. The subject continued. — Following the rules of
law laid down in the preceding section, police ofiScers ap-
pointed by a municipal corporation are not its agents or serv-
ants so as in law to render such municipalities liable for their
unlawful acts in the discharge of their duties; and accordingly
«uch corporations are not responsible for false imprisonments
or assaults and batteries committed by its police officers, though
•done by them in attempts to enforce the ordinances of the
municipality, nor for arrests made by them without process,
unlawful acts of violence in suppressing unlawful assemblies,'
and similar wrongs.
Applications of the law. —
(1) Municipaiity not liable for cusatdt, etc, by police offlcera^Batification.
Col burn and Stacy were watchmen and police officers of the city of
Lowell, with all powers of conutables except that of serving civU precepts.
About sunset on a day in October, 1855, while Mr. Butrick was standing
peaceably and talking with another person upon the sidewalk, and inter-
rupting no one in the proper use of the same, the officers ordered him off,
and upon his refusing to go, assaulted, arrested and imprisoned him,
1 Dillon on Municipal Corpora- (Mass.), 173 (1861); Burch t. Hard-
tions, § 974; Hilsdorf ▼. St. Louis, wick, 80 Gratt (Va), 24 (1878);
45 Mo., 94; Lyman ▼. Bridge Com- Bowdloch ▼. Boston, 101 U. 8., 16
pany, 2 iiken (Vt.), 255 (1827); Mor- (1880); Prather ▼. Lexington, 18 B.
risen ▼. Lawrence, 98 Mass., 219 Mon. (Ky.), 559 (1852); At water v.
(1867); Fisher v. Boston, 104 Mass., Baltimore, 81 Md., 462 (1860); Ogg
87 (1870): Stewart ▼. New Orleans, v. Lansing, 85 Iowa, 495(1872); Odell
9 La. Ann., 461 (1854); Bennett v. ▼. Schroeder, 58111. 858(1871); Haf-
New Orleans, 14 La. Ann., 120 ford v. New Bedford, 16 Gray (Mass.),
(1849); Mitchell v. Rockland, 52 Me., 297 (1860); Pesterfield v. Vickers, B
118 (1860) ; Small v. Danville, 51 Me., Ck>ld w. (Tenn.), 205 (1866) ; Ready v.
^9 (1864); Alcorn ▼. Philadelphia, Mayor, etc., 6 Ala., 827 (1844); Stew-
44 Pa. St., 848 (1868). art v. New Orleans, 9 La. Ann., 461
3 2 Dillon on Municipal Corpora- (1854); Dargaw v. Mobile, 81 Ala.,
dons, § 974; Perley v. Georgetown, 469 (1858); Chicago v. Turner, 80 III,
7 Gray (Mass.), 464 (1866); Tucker v. 419 (1875); Martin v. Mayor, etc., of
Rochester, 7 Wend. (N. Y.), 254 Brooklyn, 1 Hill (N. Y.), 645 (1841).
<1831); Butrick y. Lowell, 1 Allen
220 LIABILITT FOB FALSE IMPSISONHENT.
claiming that in bo doing tbey were only performing their ofiScial daty»
Butrick brought an action against them for false arrest, etc., and recov-
ered $500. The city of Lowell authorized its solicitor to appear in the de-
fense of the cause, and paid him for trying the same, and afterwards, in
obedience to an ordinance, he made a report of all cases in which the city
was a party or interested. The report included the case against the officers^
and was accepted by the city council and placed on file in the city clerk*»
office. Being unable to coUect his judgment, Butrick sued the city of
Lowell, claiming that the city was liable both originally and by ratifying
the acts by employing counsel to defend, etc. A nonsuit was ordered and
the plaintiff appealed.
In deciding the case, Bigelow, G. J., said : " This case must be governed
by the decisions in Hofford v. City of New Bedford, 16 Gray, 297, and
Wolcott V. Swampcott, 1 Allen, 101. Police officers can in no sense be re-
garded as agents or servants of the city. Their duties are of a public nat-
ure ; their appointment is devolved on cities and towns by the legislature
as a convenient mode of exercising a function of government ; but thi»
does not render them liable for their unlawful or negligent acts. The de-
tection and arrest of offenders, the preservation of the public peace, the
enforcement of the laws, and other similar powers and duties with which
police officers and constables are intrusted, are derived from the law and
not from the city or town under which they hold their appointment For
the mode in which they exercise their powers and duties the city or town
cannot be held liable. Nor does it make any difference that the acts com-
plained of were done in an attempt to enforce an ordinance or by-law of the
city. The authority to enact laws is delegated to the city by the sovereigu
power, and the exercise of the authority gives to such enactments the same
force as if they had been paissed directly by the legislature They are pub-
lic laws of a limited and local operation, designed to secure good order and
to provide for the welfare and comfort of the inhabitants. In their en-
forcement, therefore, public officers act in their public capacity and not as
the agents or servants of the city. The acts relied upon in this case to
show a ratification or adoption by the city of the acts of the police offi-
cers cannot have that effect. They are entirely consistent with a belief on
the part of the mayor and other agents of the city that the police officers
had committed no invasion of the plaintiff*s rights." Perley v. George-
town, 7 Gray, 464.
It may be added that if the plaintiff could maintain his position, that po-
lice officers are so far agents or servants of the city that the maxim re-
spondeat superior would be applicable to their acts, it is clear that the facta
would not render the city liable in this action, because it plainly appears
that in committing the acts complained of the officers exceeded the au-
thority vested in them by the by-law of the city. Judgment for defend-
ant. Butrick v. City of Lowell, 1 Allen (Mass.), 172 (1861).
(2) A town not liable for fdUe imprisonment^ etc — Ratification.
Perley sued the inhabitants of Greorgetown for false imprisonment Go
the trial of the case it appeared that the assessors of the town illegally
assessed a tax against Perley, and made their warrant in due form of law
LIABILITT FOB FALSE IMPBI80NMKNT. 221
to the town treasurer and collector for its collection. They subsequently
abated a part of the tax and Perley paid the residue to the treasurer.
Afterwards the treasurer demanded payment of a further amount, and,
on plaintifTs refusal to pay it, issued a warrant to a constable, who arrested
Perley and committed him to jail, where, after remaining fifteen days, he
was released on habeas corpus. The town afterwards paid the constable's
fees and charges for serving and executing the warrant, and also the jail-
•er's charges for the board and maintenance of Perley while detained in
custody at the jail. Merrick, J. , the trial judge, reported the case to the
full court upon the question whether the plaintiff could maintain his action
against the town upon this evidence.
In ordering a nonsuit, Metcalf, J., said : " A town cannot be made liable
for the illegal act of its ofiicers or agents, unless those acts are done under
its authority previously conferred, or are subsequently ratified by the town.
In this case the town did not authorize its treasurer and collector to com-
mit the plaintiff to prison for not paying a tax that had been abated, nor
did it ratify the act of imprisonment by paying the collector's fees for
commitment and the jailer's charges. If these payments had been made
by an individual, it could not be pretended that he thereby made himself
liable to the plaintiff in an action for false imprisonment. Nor can pay-
ment thereof by the town render the town so liable. The payment may
have been made, and doubtless was made, for a very different purpose
than that of ratifying or justifying the acts of their collector." Nonsuit
ordered. Perley v. Georgetown, 7 Gray (Mass.), 464 (186tt>
(8) Liability of municipal corporations for acts of its officers.
The town of Odell was incorporated under the general laws of the state
of Illinois, and had, by virtue of such laws, passed ordinances for the pres-
ervation of the peace, and had appointed officera and intrusted them with
the power of enforcing the ordinances adopted. Mrs. Hattie Schroeder was
charged before a justice of the peace of the town with assault and battery :
a warrant was issued, she was arrested, taken before the justice, tried
and fined $15. Upon the termination of the trial the justice issued an
execution against the property of the defendant, and handing it to the con-
stable said: *'Take care of her." She was then confined in the town
prison for the space about of twenty-four hours. It was in the month of
March ; the weather was cold and very disagreeable. The prison was not
close; it was without fire, bedding, or other furniture except a little straw,
which was damp, until a few hours before her release, when a stove was
put up and a fire made. It was claimed that Mrs. Schroeder had received
great and permanent injury to her health ; and upon her release she in-
stituted a suit against the town to recover damages. A trial resulted in a
verdict for $900.
On appeal, in delivering the opinion reversing the judgment, Walker, J.,
said: ** It remains to determine whether the town is liable for this impris-
onment. The fact that the trustees adopted the ordinances and appointed
the town constable to see they were executed did not render the town lia-
ble for the unauthorized, illegal and oppressive acts of that officer. They,
as the representatives of the town, only empowered him to do what the or-
222 LIABILTTT FOB FALBB IMPBI80NHKZJCT.
dinancee required, and not to oppress citizens of the place. They did not
direct the act to be done, either as a board or as individuals; they, we must
suppose, had no idea the officer would do anything more than the law re-
quired. All officers are required to perform their duty, and the electing
or appointing power expects them to do no more ; and if they should, that
power is not responsible for the wrong. This was the individual act of the-
officer. The building of the prison was a lawful act, and its construction
did not render the town liable for the wrongful imprisonment of prisoners
therein, when they have done no act contributing to it. But while the
trustees and other officers might, by illegal and unwarranted exercise of
power, render themselves individually liable, that would not render the
town liable. Any information the trustees may have had in reference to
this imprisonment, or even had they participated in the illegal imprison-
ment, could not render the corporation liable. The people, when they
elect these officers, cannot be presumed to have intended to authorize them
to do illegal acts; to so hold would be to indulge in a presumption wholly
unauthorized, as we know such could not have been intended. Their
election but authorized them to perform legal acts and to exercise legiti-
mate power ; and when they depart from their proper power, they must
be held individually liable, but not to impose a liability on the corporation.
It would not be held that a county would become liable for the wrongful or
oppressive acts of a sheriff because the people had elected him to the
office, and, in principle, what constitutes the difference?" Board of Trust-
ees V. Schroeder, 58 111., 358 (1871).
§ 101. Liability for the torts of employees.— If the cor-
poration, acting within the scope of its corporate authority^
employs agents or servants in such a manner as to put it
within their power to cause a violation of a duty owed to
third persons by the corporation, it will not be sustained in
defense that the violation complained of was not authorized
by it. And if the tort was committed in the course of an em-
ployment or in connection with transactions which the corpo-
ration had competently authorized or acquiesced in, and any
such duty owed by the corporation is violated by the tort, it
will be no valid- defense to the corporation that the tort in
question was not pnly unauthorized but was even vZtra nrea
the corporation. In this field the doctrines of ultra vires have
no application; but they do apply where the employment in
the course of which, or the transaction in connection with
which, the tort was committed, was ultra vires the corpora-
tion.^
1 Cakes v. N. W. R> Ck)., 86 Wis., 657 (1875); Taylor on Corporations,
g 886 (1888>
J
LIABILITY FOS FAL8B IMPBI80NUBNT. 22$>
§ 102. Liability for mallcloas prosecution and false lm«-
prisonment. — Private corporations are, as a general rale, lia-
ble for false arrests and imprisonments and suits maliciously
prosecuted by its employees in all cases where the acts com-
plained of were authorized or ratified by the corporation, or
were instituted by some officer or agent acting within the-
scope of his authority or the course of his employment.^
Applications of thb bule. —
(1) Liability of a railroad corporation for fahe imprisonment
Michael Lynch purchased a ticket for a passage upon the Metropolitan-
Elevated Railway and entered one of its cars. Before reaching his destina-
tion he lost his ticket, and when he attempted to pass through the gate
from the station platform, he was stopped by the gate-keeper of the com-
pany and informed that he could not pass until he produced a ticket or
paid his fare. He stated the fact of his purchase of a ticket and its loss,
and insisted on passing out, but was pushed back by the gate-keeper, wha
sent for a police officer and ordered his arrest. Lynch was then arrested
and taken to the police station, where the gate-keeper made a complaint
against him, and he was locked up for the night. In the morning he was
examined before a police magistrate — the gate-keeper appearing against
him — and was discharged. After his discharge he brought an action
against the railroad company for false imprisonment. At the trial, in ad-
dition to the foregoing matters, it appeared that the railroad company had
given orders to its gate-keepers not to let passengers pass out until they
either paid their fares or showed tickets. Lynch recovered, and the raiK
road company appealed. It was held by the court of appeals that the de-
tention was unlawful, and that the company was responsible for the act»-
of its gate-keeper. Lynch v. Met., eta, R*y Co., 24 Hun, 506; 90 N. Y., 77
(1882).
(2) Another Uluatraiion,
Action for false imprisonment On July 7, 1884, the plaintiff, while-
riding in a train of the defendant, the Eastern R*y Ckx, from Lawrence to
Salem, offered the conductor, when asked for a ticket, a ticket of the de-
fendant corporation which read, " Lawrence to Salem and return,** oi>
which he had already ridden from Lawrence to Salem, and it was conceded
that this ticket did not entitle him to be carried a second time from Law-
rence to Salem. The conductor refused to accept the ticket, and demanded*
1 Lynch ▼. Met El. R. R. Co., 90 448(1879); Wheeler &W. Manuf. Co.
N. Y., 77 (1882); Wheless v. Sec. v. Boy ce, 86 Kan.. 350(1887); Wood-
Nat Bank, 1 Baxt (Tenn.), 469(1872); ward v. St L., etc., R*y Co., 85 Mo.,
Qoodspeed v. East Had. Bank, 22 142 (1884); Carter v. Howe M. Co.,.
Conn.. 630 (1863); Williams v. Plant- 61 Md., 291 (1878); Jordan ▼. Ala.^
ers'Ins. Ck>., 57 Miss., 759 (1880); etc., R'y Co., 74 Ala., 86(1888).
Seed y. Home Sav. Bank, 130 Mass.,
221 LIABILITY FOB FALSE 1MPBI80NMBNT.
•of the plaintiff payment of his fare. The plaintiff, who had ridden on the
jtrain with the same conductor a number of times before, said that he had
DO money with him, because he thought the ticket was good, and that he
would pay the fare at night, to which the conductor retorted that that
was what all tramps did. The plaintiff then offered to allow the conductor
to keep the ticket as security. The conductor refused the offer, and told
plaintiff that he would fix him when they got to Salem. It was denied by
the conductor that he said anything about tramps, and the conductor testi-
lied that the plaintiff, upon offering the ticket, said, " That is all you will
■get, — take that or nothing ; " and also refused to leave the train.
The testimony also tended to prove the following facts: The conductor,
who was a railroad police officer under the Massachusetts statutes, after
'informing the plaintiff that if he did not pay fare he should arrest him, or
ihave him arrested, on arrival at Salem, allowed the plaintiff to retain his
position in the train until it arrived at Salem. On the arrival of the train
-at thiis station, certain of the local police, who were in readiness in conse-
quence of a previous notice from the conductor, entered the train, and the
•conductor, pointing out the plaintiff, said to them, ** That is the man,"
and told them to take him to the lock-up ; whereupon, in consequence of
this direction, and in the presence of the conductor, said officers, without
a warrant, took the plaintiff in charge before he left or attempted to leave
the car, and took him to the police station in said Salem, where he re-
mained in custody until released on bail. The conductor afterwards made
■a complaint against the plaintiff for evading payntent of fare on this occa-
sion in the manner stated in the said complaint, by leaving the car without
having paid bis fare. On this complaint the plaintiff was tried and ac-
quitted. At the conclusion of the testimony, the defendant asked the court
to rule that the action could not be maintained ; and further, that there
was no sufficient evidence to warrant the jury in finding that said com-
plaint was made without probable cause by the conductor; but the court
•declined so to rule.
The court submitted to the jury a special issue: " Did Nason, the railroad
police officer, arrest the plaintiff?" and instructed them that if they found
the special issue in the negative, they would be authorized in finding that
the arrest in Salem was unlawful, and that the plaintiff wculd upon
such findings be entitled to recover for false imprisonment. The jury
found the special issue in the negative and rendered a general verdict for
the plaintiff. The defendant alleged exceptions. In overruling the ex-
ceptions, Holmes, J., said : '* The conductor did not arrest the plaintiff at
once, nor did he arrest him at all in person, but, when the train reached
Salem, pointed . him out to other officers, who made the arrest at the con-
ductor's request. This was not necessarily, and as matter of law, an arrest
by the conductor in his capacity of railroad police officer. The jury were
given to understand that they might take this view of the facts, which
would regard the conductor's request as made in his capacity as officer,
and the other officers as his servants. But it was also possible to find that
the request to the officers was made by the conductor only in the capacity
•of conductor ; in other words, that he simply made a complaint to them
Just OS he might have done if he had not been an officer himself, in which
LXABIUTT TOR FALSE IMPBISONMSlfrr. 9S5
-ctme the arreet waa not made br him as railroad police officer. This was
the view taken by the jury, and it follows that the arreet was not jnstifled
by the statute. The statute does not authorize an arrest by officers not
present when the oifense is committed, upon complaint by a conductor.
PuU St. (Mass.), ch. 108, § 18. It was not denied that the conductor caused
the arrest to be made, or that he was acting within the scope of his em-
ployment so far as to make the defendant liable for his tort. The only
question was in what capacity he acted. If the arrest was unlawful, it
was an assault and a false imprisonment by the defendant.'' Cody ▼.
Adams, 7 Gray, 50 ; Smith v. Bouchier, 2 Strange, 993 ; Krulevitz ▼. East-
ern B. Co., 148 Mass., 228; 9 N. K Rep., 618 (1887).
§ 103. Partners^ principals, agents — Liability for torts,
etc, — In order that responsibility may attach to the princi-
pal in respect to a tort committed by his agent, it is neces-
sary—
(1) That such principal authorized the commission of the
tort in the first instance ; ^ or
(2) That he has made it his own by adoption or ratifica-
tion;' or
(3) That the tort was committed by the agent in the course
and as a part of his employment.'
As a general rule a principal is not liable for the torts of
his agent except upon some one of the grounds mentioned
above.
It follows, from the principles of agency, coupled with the
doctrine that each partner is the agent of the firm for the pur-
pose of carrying on its business in the usual way, that an or-
dinary partnership is liable in damages for the negligence of
any one of its members in conducting the business of the part-
nership. As a rule, however, the wilful tort of one partner is
not imputable to the firm. For example, if one partner ma-
liciously prosecutes a person for stealing partnership property,
the firm is not answerable, unless all the members are in fact
privy to the malicious prosecution.*
§ 104. The law stated hy Justice Craig.— By entering into
partnership each party reposes confidence in the other and
•*Cooley on Torts. 585, 536; EweU's Bl.. 478 (1873); Gurler v. Wood, 16
•Evans on Agency, 480 and note ; 1 N. H. , 539 ( ).
Lindley on Partnership, ^ 297 (1881). * 1 Lindley on Partnership, § 298
'Harvey v. McAdams, 82 Mich., (1881); Burns v. Poulson, L. B., 8
472 (1875) ; 1 Lindley on Partnership, C. P., 568.
S 297 (1881) ; Grund v. Van Vleck, 69 * Arbuckle v. Taylor, 8 Dowl., 160.
15
326 LIABILITY FOB FALSE IMPSI80NMENT.
constitutes him bis general agent as to all partnership con«-
cerns.^ But the question involved here is not as to the liability
of one partner for the contracts of the other, but it is whether
one partner may be liable in damages for the wrongs of the
other. Mr. Collyer, in his work on Partnership, section 467,
says: "A learned writer observes that, though partners are,
in general, bound by the contracts, they are not answerable
for the wrongs, of each other. In general, acts or omissions
in the course of the partnership trade or business, in violation
of law, will only implicate those who are guilty of them."
And in 1 Lindley on Partnership, book 2, chapter 1, section 4,
the author says: " As a rule, however, the wilful tort of one
partner is not imputable to the firm. For example, if one
•partner maliciously prosecutes a person for stealing partner-
ship property, the firm is not answerable unless all the mern^
bers are in fact privy to the malicious prosecution." In an
Illinois case,^ where a question arose as to the liability of one
partner for the act of the other in causing the arrest of a per-
son charged with larceny of money belonging to the firm, it
was held that the mere knowledge and consent of one partner
that the other should have the person accused arrested would
not render the partner so knowing and consenting liable to
an action for malicious prosecution. It was necessary that
the consent should be of such a character as to amount to ad-
vice and co-operation. In another case ' a question arose as
to the liability of one partner for the tort of the other, and it
was held that one partner cannot involve another in a trespass
unless in the ordinary course of their business, and in a case
where the trespass is in the nature of a taking which is avail-
able to the partnership; and in such case, to render the part-
ner liable who did not join in the commission of the trespass,
he must afterwards have concurred and received the benefit
of it.*
Applications of the law. —
A partner hdd not to be liable.
In 1883 Barker resided in Iowa, and was engaged, in a small way, in the
jewelry business. In the latter part of the year he bought a biU of goods^
1 GK)w on Partnership, 52. ^ Rosenkrans et aL v. Barker, 115^
^Onbert V. Emmons, 42 IH., 148. 111., 381 (1885).
•Grand v. Van Vleck, 60 111., 478.
LIABIUT7 FOB FALSE IMPRISONMENT. 227
of Rosenkrans & Weber, Chicago, amounting to $850. The goods were
«old by a traveling man named Johnson* When the bill became due, $100
was paid, but no part of the balance has ever been paid. Bosenkrans re-
sided ill Wisconsin, and did business in Milwaukee, but at the same time
he was a partner in the jewelry business of Bosenkrans & Weber, in Chi-
cago, the firm being composed of Bosenkrans and Lucy R Weber, who
was the wife of J. H. Weber. J. H. Weber had the general management
of the business of this Chicago firm. On or about the 1st of February, 1888,
the bill of goods remaining unpaid, Johnson, who had sold the goods, in-
duced Barker to visit Chicago, under the pretense that he would enter into
partnership with him in the jewelry business in Chicago. Upon the ar-
rival of Barker, Weber wais notified, by Johnson, of the arrival, and on the
6th day of February, 1883, Weber filed a petition and obtained an order
for a writ of ne exeat The writ was issued, and placed in the hands of
the sheriff, who arrested Barker, and held him in custody ten or twelve
hours, when he was released on bail. Subsequently, and on the 17th day
of March, 1888, on demurrer, the pt^ition was dismissed. It does not ap-
pear that Bosenkrans had any knowledge that the proceedings had been
instituted against Barker, until about the 1st day of April, 1883, and at this
time the petition for a ne exeat had been held bad on demurrer, and dis-
missed, and Weber had then, or a few days thereafter, appealed to the ap-
pellate cQurt. When Bosenkrans learned what had been done, he notified
Weber that it was wrong, and advised the dismissal of the appeal from the
appellate court, and under his advice no further steps were taken to pros-
ecute the appeal. Barker brought an action for false imprisonment and
malicious prosecution against Bosenkrans and the other partners.
On the trial, at the request of plaintiff, the court instructed the jury :
** If Bosenkrans became acquainted with the facts in the matter about
the last of March, 1883, that, being so informed as to said facts attending
the commencement of said proceedings, said Bosenkrans suffered said pro-
ceedings to be continued in the courts, through the medium of an appeal,
and did not in any way discountenance said proceedings or put a stop to
the same, then the court instructs the j ury that if they find, from the
evidence, that said ne exeat proceeding was instituted maliciously and
without probable cause, and said Bosenkrans was so informed, but allowed
the ne exeat case to proceed, then all such facts, if the jury so believe, may
be taken in consideration in determining whether said Bosenkrans ratified
and approved of the arrest of said Barker, and if he did so approve and ratify
the arrest of said Barker, then he would be equally liable with Weber, if
said arrest was made maliciously and without probable cause."
The court also instructed the jury that if they find the defendants guilty
under the evidence, that the arrest was malicious and without probable
cause, and that plaintiff has sustained actual damages, then, in assessing
damages, they are not limited to compensation for actual damages sus-
tained, but may give exemplary or vindictive damages. These instructions
are claimed to be erroneous as to the defendant Bosenkrans. In the court
below the plaintiff recovered and the defendants appealed. In reversing
the judgment, Craig, J., said:
An instruction which is not based on the evidence in the case is im-
228 LIABILITY FOB FALSE IMPBISONMSNT.
proper and should not be given. It is liable to mislead the jury, and osa-
ally results in a wrong verdict As to the first instruction, we find no evi*
dence in the record upon which it could fairly be predicated. Bosenkrans
testified, — and in this he is corroborated by other evidence, — that when
he came to Chicago and learned for the first time of the proceedings, he
notified Weber, who was in charge of the matter, that it was wrong, and
the appeal ought to be dismissed. Here he not only failed to sanction and
approve, but condemned, what had been done, and under his direction no
further steps were taken to prosecute the appeal. The conduct and acts of
Rosenkrans contain no element of approval ; in the absence of any evidence
to sustain such a theory they could do no less than mislead the jury. As re-
spects the other instruction, we are of opinion, as to Rosenkrans, it is erro-
neous. It is not claimed that he ordered, advised or directed the arrest, or
that he even knew of the occurrence until after the proceedings in the ne
exeat case had been dismissed. The claim is that after knowledge of the
arrest he approved what had been done. If such was the case, he would
only be liable for the real injury su^ained, and not for vindictive dam-
ages, as held in Grund v. Van Yleck, 69 111., 478. But under the instruction
the jury were directed that each defendant was liable for actual and vin-
dictive damages.
It is, however, claimed by appellee that Rosenkrans is liable upon* either
one of two grounds : First, because those who caused the arrest were serv*
ants or agents of Rosenkrans, acting within the scope of their agency ; and
second, the wrongful proceeding was instituted for Rosenkrans, and in his
name, and when he became aware of what had been done he ratified it.
Weber, who caused the arrest of Barker, was not in fact a partner of Rosen-
krans, but he acted for his wife, who was the partner, and so far as the
acts are concerned they may be regarded as the acts of Rosenkrans' partner.
In many respects one partner is the agent of the other. In the purchase
and sale of goods within the scope of the partnership business the acts of
one may be regarded as the acts of both. In such cases the one that trans-
acts the business acts for himself and in the capacity as agent of the other,
and in that capacity he binds himself and also binds his partner. By en-
tering into partnership each party reposes confidence in the other, and
constitutes him his general agent as to all partnership concerns. Grow on
Partnership, 52. But the question involved here is not as to the liability
of one partner for the contracts of the other, but it is whether one partner
may be liable in damages for the wrongs of the other. In Gilbert v. Em-
mons, where a question arose as to the liability of one partner for the act
of the other, in causing the arrest of a person charged with larceny of
money belonging to the firm, it was held that the mere knowledge and
consent of one partner that the other should have the person accused ar-
rested would not render the partner so knowing and consenting liable to
an action for malicious prosecution. It was necessary that the consent
should be of such a character as to amount to advice and co-operation. In
Grund v. Van Vleck, 69 111., 478, a question arose as to the liability of one
partner for the tort of the other, and it was held that one partner cannot
involve another in a trespass, unless in the ordinary course of their busi-
ness, and in a case where the trespass is in the nature of a taking which is
LiABiLrrr fob false imfbisoitmbnt. 229
r
available to the partnership. And in such case, to render the partner
liable who did not join in the commission of the trespass, he must after*
wards have ooncurred and received the benefit of it.
Here no part of the debt was collected by the commencement or prose-
cution of the proceedings against Barker, and it is not claimed that a lia*
bility exists on account of receiving any benefit from the arrest, and if
Bosenkrans is to be held liable, it is upon the ground that he was a mem-
ber of the firm which, instituted the suit and caused the arrest. This,
under the authorities cited, cannot be done.
As to the second ground relied upon by appellee — ratification — what
was said in passinji: upon the instructions given for appellee is sufficient to
dispose of that matter, and no further discussion of the subject is deemed
necessary.
One question has been raised in regard to the admission of evidence
which remains to be considered. On the trial the defendants, as prelimi-
nary to proving the general bad reputation of the plaintiff in the place
where he resided, asked a witness the following question : "Do you know
the general reputation of the plaintiff, Mr. Barker, among his friends and
neighbors and acquaintances, in the city of McGregor, Iowa, as it existed
in December and January and February, 1882 and 1883, for honesty and
fair dealing in business ? " — which was objected to, objection sustained
and exception taken by defendants. We think that evidence of the gen-
eral bad reputation of the plaintiff was admissible. In 3 Sutherland on
Damages, p. 708, it is said : " According to the better authorities, the de-
fendant may prove the general bad reputation of the plaintiff, both to
rebut the proof of want of probable cause and in mitigation of damages."
In Israel v. Brooks, 23 HI., 575, an action for a malicious prosecution, it
was held that previous good character may be shown as one evidence of
want of probable cause, and bad character may be shown as a reason for
probable causa For the errors indicated the judgment is reversed. Bosen-
krans V. Barker, 115 111., 881 (1885).
§ 105. Batiflcation. — On the principle that a person does
not make himself liable by ratifying an illegal act of another
unless the act was done in his behalf or for his benefit, if one
member of a partnership commit a tort outside the scope of
the business and of no benefit to the firm, nor on its behalf
or in its interests, his copartner's subsequent approval of it
will not make him liable.^
§ 106. Detention by keepers of prisons, jailers, etc. —
The rules of law relating to arrests made by officers, and under
which they may justify, are in general applicable to jailers
and all other persons who may detain parties arrested or re-
strained of their liberty. Where the officer who arrests or
1 Bates on Partnership, § 469; Rosenkrans v. Barker, 115 III., 881 (1885);
Wilson ▼. Turnman, 6 M. & O., 286.
Q30 UABILITT FOB FALSE IMFBISONMENT.
commits a person to jail has lawful authority to do so, the
keeper of the prison has lawful authority to receive and de-
tain. There seems to be but little distinction between the
liability of the ofScer who makes the arrest, or the magistrate
who commits, and the jailer who detains.^ But the jailer
does not become liable for any illegal or oppressive acts of
the officers making the arrest because he thus receives the
party arrested.' Nor is a jailer liable for refusing to release
a debtor on a defective order of discharge, being advised by
counsel that it was defective, although he would have been
protected by the order had he discharged the person detained.'
An application of thb law. —
ff
Confinement in the penitentiary under void conviction — The tort cannot he
waived,
James Prior was convicted and sent to the penitentiary by the conrt of
common pleas in a proceeding in which the court had no jurisdiction. He
was confined in the staters prison, in the custody of one Miller, who was
the warden, under and by virtue of the judgment rendered in the proceed-
ing aforesaid. During his confinement, by order of Miller, as warden, he
worked as a criminal. His labor was shown to be worth $225. During
all this time Patterson was the lessee of the prison and received all the
benefit of said labor as such lessee. Prior's imprisonment commenced on
the 12th day of September, 1853, and ended by his discharge therefrom on
habeas corpus January 1, 1855. After his release he sued Patterson &nd
Miller for the value of his wages on an implied assumpsit, and recovered a
judgment on appeal from the denial of a motion for a new trial. Worden,
J., said : " At the time the appellee was convicted and sent to the peniten*
tiary, the court of common pleas had no jurisdiction in that behalf ; hence
the conviction and judgment were nullities and furnish the appellants no
protection for the tort committed in confining him in the penitentiary.
Patterson v. Crawford, 12 Ind., 241. The appellants must be presumed to
have known the law and that they had no legal right to imprison the ap-
pellee or cause him to labor. That they may have been responsible to him
in some form cannot be doubted. They undoubtedly committed a tort,
and the question here is, whether the tort can be waived and the action
maintained on an implied assumpsit. We will first examine the question
80 far as it relates to Patterson. He, it seems, was the lessee of the peni-
tentiary and received all the benefit of appellee's labor. He must be pre-
1 Artega v. Conner, 88 N. Y., 403 7 Am. & Eng. Ency. of Law, 685
(1882); Boaz v. Tate, 48 Ind., 60 (1889).
(1878); Ellis v. Cleveland, 64 Vt. « Boaz v. Tate, 48 Ind., 60 (1873).
487 (1883); Patterson v. Prior, 18 > Hayes v. Bowe, 12 Daly (N. Y.),
Ind., 440; 81 Am. Dec, 867 (1862); 193(1882).
LIABILITY FOB FALSE IMFBI80NMBNT. 231
«amed to have assented to the performance of the labor, and being bene-
fited thereby, the law implies a promise to pay what it is reasonably
worth. It was held in Patterson v. Crawford that when labor is per-
formed for the benefit of a party without an express cootract, if he
knows it and tacitly assents to it he will be liable on an implied contract
to pay a reasonable compensation therefor. The case, however, is entirely
different as to Miller, the warden of the penitentiary. He received no
benefit of the appellee's labor, and not having been benefited, there is, as
to him, no consideration to support an implied assumpsit to pay. The
case of Webster et al. v. Drink water, 5 QreenL R., 275, is much in point,
where it is held * the party committing a tort cannot be charged as upon
an implied contract, the tort being waived, unless some benefit has actu-
ally accrued to him.* The judgment against liilier is reversed and against
Patterson it is affirmed.*' Patterson et al. v. Prior, 18 Ind., 440 (1862).
§ 107. Beteutlon by priyate person. — Any unlawful de-
tention by a private person of another is of course unjustifi-
able and amounts to a false imprisonment.^
Illustbations of the bulb. —
(1) Detention by cashier closing the hank.
At the bank of Syracuse a custom of closing at 4 o'clock P. M. prevailed,
lialcolm W. Smith, who knew of this custom, went to the bank a few
minutes before the usual time of closing for the purpose of presenting
«ome notes of the bank for redemption. The teUer of the bank counted
out money sufficient to redeem the notes and handed it to Smith. While
Smith was counting the money the clock struck four. The teller locked
the street door of the bank and put the key in his pocket. When Smith
had finished counting the money he turned to depart, but finding the door
locked, he asked to be let out The teller answered that the door would
be unlocked when they went to tea; that it might, by chance, be opened
before, and requested him to sit down. About half an hour afterwards a
notary came on business. The door was opened to admit him, and Smith
passed out. It was held that Smith's detention was unjustifiable, and a
judgment for six cents was sustained. Woodward v. Washburn, 8 Denio
(N. Y.), 869 (1846).
(2) Not a cause of self -defense.
Samuel McNay brought a suit against Daniel G. Stratton for false im-
prisonment Stratton pleaded that he did the acts complained of in nee-
^essary self-defense. On the trial it appeared that Stratton rode to McNay's
house and found him at work in a com crib, and, drawing a revolver,
"threatened to keep him in the crib until he was as cold as the grave, unless
lie would state whether he had made certain derogatory remarks concern-
ing Stratton's family, and when McNay refused he fired at him, and act*
iMcCk>y V. Stratton, 9 Brad. (DL), 215 (1881) ; Woodward y. Washburn,
:8 Denio (N. T.), 869 (1846).
232 LIABILITY FOB FAL8B IMPBISONMEXT.
ually kept him in the crib for over an bonr, and until McNay obtained t^
revolver and drove him away. It was held that the evidence failed to sup-
port the plea of self-defense. McNay v. Stratton, 9 Brad*, 215 (1881).
§ 108. Detention by officers of the army or nayy. — Offi-
cers in the military or naval service are not answerable to the-
civil courts for arrests made by them in the performance of
their duty and within their authority as such officers, unless
they exceed their authority and make arrests for acts which
are not offenses against the military or naval service of the-
government.^ Thus an action will lie in favor of an inferior
officer against his superior who imprisons him for disobedience
of an order made under color but not within the scope of
military authority;* and a naval officer is liable in an action
brought in a state court for an illegal imprisonment of a sub-
ordinate, although the act was done on the high seas and
under color of naval discipline.' The president of the United
States, as commander-in-chief of the army and navy, has no-
legal authority, even during a rebellion or insurrection, to im-
prison any person not subject to military law, without soma
legal order, writ, precept or process from some court of com-
petent jurisdiction.*
1 Addison on Torts (Wood's ed.), •Warden v. Bailey,— Taunt, 67.
§ 1807 ; Wise v. Withers. 8 Cranch * Wilson v. McKenzie, 7 Hill
(U. S.), 881 (1806); Malory v. Mer- (N. Y.). 95 (1845).
rett, 17 Conn., 178 (1845) ; Dynes v. * Jones v. Seward, 40 Barb. (N. Y.)^
Hoover, 20 How. (U. a), 66 (1857); 668(1868).
Tyler v. Pomeroy, 8 Allen (Mass.)^
480 (1864).
•
CHAPTER V.
FELONIES AND MISDEMEANOBa
1. A felony at common law definecU
d. A misdemeanor defined.
8. Statutory classification.
4. Felonies and misdemeanors under statutes.
In actions for false imprisonment, especially where the ar-
rest complained of has been upon information of a felony
committed and without process, it will frequently be necessary
to determine what is a felony in fact and what is not. It has
therefore been thought best to discuss the matter briefly in
this chapter.
§ 1. A felony at common law defined. — An offense which
occasions a total forfeiture of either lands or goods, or both,
to which capital or other punishment may be superadded ac-
cording to the degree of guilt.*
Bishop says, quoting from Gabbett: "The "^ov A felon is
(according to the best opinions) derived from two northern
words,*y!?«, which signifies fief, feud or beneficiary estate, and
lanj which signifies price or value; and the word felony im-
ports rather the feudal forfeiture, or act by which an estate
is forfeited or escheats to the lord of the fee, than the capital
punishment to which lay or unlearned offenders were formerly
liable in all cases of felony. In proof of this, suicide has been
always considered to be a felony, because it subjected the
person committing it to forfeiture, though the party being
already dead could not be the object of capital punishment;
and homicide by misadventure or in self-defense is, strictly
speaking, a felony also, being followed with forfeiture, though
according to the better opinions it never was punished with
14 Black. Com., 04,95; IRusseU on 159; Gray v. Reg., 6 Irish Law
Grimes, 42; 1 ChiUy's Practice, 14; Rep., 483, 502; 1 Bishop's Crim. Law,
Coke on Littleton, 891; 1 Hawkins' §580.
Pleas of the Crown, ch. 87; 1 Bou- ^Spelman, Qlo6.,titFelon;4Blaofe
vier's Law Die, 517; 5 Wheat., 153, Com., 94, 95.
234 FELONIES AND MISDEICEANOBS.
death ; while heresy, which was a capital offense by the com-
mon law but not a felony, never worked any forfeiture of
goods.^ And, as a farther proof, treason was anciently held
to be a felony, which can only be accounted for upon the prin-
ciple that forfeiture was one of the consequences of attainder
in high treason. Though this is the proper (^finition of fel-
ony, yet this term has been so generally connected with the
idea of capital punishment, that, whenever a statute made any
new offense a felony, the law implied that it should be pun-
ished by death by hanging as well as forfeiture, unless the
offender prayed the benefit of the clergy." *
§ 2. A misdemeauor defined. — This term is defined to ex-
press every offense inferior to a felony, punishable by indict-
ment or by particular prescribed proceedings. In its usual
acceptation it is applied to all those crimes and offenses for
which the law has not provided a particular name. The term
is generally used in contradistinction to felony. Misdemean-
ors are sometimes called misprisions.'
§3. Statutory classlficatlous. — Forfeitures and corrup-
tions of blood consequent upon conviction for crimes have be-
come almost unknown in the United States.^ But the dis-
tinction between offenses of the different grades is a part of
the common law. These distinctions are not to be considered
arbitrary, in a sense unfavorable to the law. " Technical they
are; but all truth is more or less technical when applied to
the practical affairs of life. In the nature of things, a differ-
ence exists between the higher and lower crimes; but the
rules to determine what acts shall belong to the higher, and
what to the lower, must either be laid down in a way some-
what technical, or be left to the uncertain standard found in
the breast of each individual judge. There are the weightiest
objections to the latter method, and so the former comes as
the only practical. one."* The diflBculty has, however, been
14 Black. Ck)m., 97. < Burn's Justice, tit. Misdemeanor;
21 Bishop, Criminal Law, § 680; 4 Black. Ck)m., 5 ; 1 RusseU on Crimes,
1 Gab.. Crim. Law, 15, 16: Adams 48; 2Bouvier*s Law Die, 169.
v. Barrett, 5 Ga., 404; Foxley's Case, * Woldrich v. Lucas, 7 B. Monr.,
6 Co., 109a; Finch's Case, 6 Co., 63, 49; 1 Bishop Crim. Law, § 681.
68; Reg. v. Whitehead, 2 Moodj, » Bishop's Crim. Law, § 681.
181; 9 Car. & P. 439; Whitaker v.
Wisbey, 9 Eng. L & Eq., 457.
VSVOISIBB AHD inSDEHBAHOBS.
235
obviated in a great measure by statutory enactment declaring
that all offenses punishable by imprisonment in the peniten-
tiary are felonies and all other offenses are misdemeanors.^
§ 4. Under statutes. — In many of the states of our Union,
the classification of offenses into felonies and misdemeanor is
made by statutory enactments. As an illustration, we pro-
duce the statute of Illinois upon this subject. '
Fdony. — A felony is an offense punishable with death or by imprison-
ment in the penitentiary.
Ifisdemeanor, — Every other offense is a misdemeanor.'
The statute of Iowa is a little more elaborate, but expresses
the same idea.
Sec. 4428. Public offenses are divided into^
1. Felonies.
2. Misdemeanors.
Sec. 4429. A felony is a public offense punishable with death, or which
is, or in the discretion of the court may be, punishable by imprisonment in
the penitentiary.
Sec 4480. Every other public offense is a misdemeanor.*
iWeinzorpflin v. The State, 7 «R. S.niinois, 1874, 894,§§ 6, 6.
Blackf., 180, 188. * Revised Code, Iowa, 1860, 763.
CHAPTER VL
MALICE.
§ 1, Halioe explained by Blackstone.
2. Malice as term of law.
8. Necessary ingredients of malice.
4. The law implies malice, when.
6. Malice in fact immaterial, when,
(t. Express malice defined.
7. Malice in law.
8. Distinction between malice in law and malice in UuoL
9. Consequences of the distinction.
10. Evidence of malice.
Applications of the law.
(1) Declarations of ill-will ~ Evidence of malice.
(2) Defendants may testify as to their intent.
(8) GKxxi faith and honest belief are mental conditions.
(4) Motive of the prosecutor — A desire to make an example for
the purpose of deterring others.
(5) Witness' opinion that the prosecutor appeared vindictive, etc
(6) A multiplicity of suits.
IL Undue publicity of arrest — Evidence of malice — Application of the
rule.
Id. Malice and the want of probable cause must concur, etc. — Digest of
English authorities.
18. Malice may be inferred from the want of probable cause.
14. Want of probable cause — Evidence of malice.
15. The existence of malice a question for the jury.
10. Malice a question for the jury — The general rule.
17. Malice in actions for malicious prosecutions.
18. Malice in actions for false imprisonment.
§ 1 . Malice explained by Blaclcstone. — Blackstone explains
the subject of malice in dealing with the crime of murder.
We quote some of his statements thereon, placing in brackets
certain words which will adapt his remarks to our present
subject. He says that '^ malice prepense or malitia proBoogi-
tata is not so properly spite or malevolence to the deceased
[or injured person] in particular as any evil design in gen-
eral — the dictate of a wicked, depraved and malignant heart;
v,ne disposition a faire tme male chose [a disposition to com-
MALICE. 287
init a wicked act], and it may be either express or implied in
law." '
§ 2. Malice as a term of law. — The word malice as a term
of law has a meaning somewhat different from that which it
possesses in ordinary parlance. In its ordinary sense '^ malice"
denotes ill-will, a sentiment of hate or spite, especially when
harbored by one person towards another. The word is so
employed in the well-known sentence in the litany of the
Church of England, ''From envy, hatred and malice," etc.
This is what the law terms " malice in fact," " actual " or
^' personal " malice, to distinguish it from the legal sense at-
tributed to the term, and which, from being used in such
sense, is accordingly designated " malice in law." " Malice in
fact" is, to use the language of a late eminent judge, ''of two
kinds — either personal malice against an individual, or that
sort of general violation of the right consideration due to all
mankind which may net be personally directed against any
one." ' And Lord Justice Brett, in a comparatively recent case,
where a question of privilege arose, said: ''By malice here I
mean, not a pleading expression, but actual malice, or what is
termed ' malice in fact ; ' i. ^., a wrong feeling in the defend-
4int's mind." '
§ 3. Necessary ingredients of malice — Chief Justice
8haw« — It is not necessary, to render an act malicious, that
the party be actuated by a feeling of hatred or ill-will toward
the individual, or that he entertain and pursue any general
bad pfirpose or design. On the contrary, he may be actuated
by a general good purpose, and have a real and sincere de-
sign to bring about a reformation of matters; but if, in pur-
suing that design, he wilfully inflicts a wrong on others which
is not warranted by law, such act is malicious.
A man may, by his example and by his conduct, be doing
great injury to society; he may in fact be guilty of the most
heinous crimes, and that well known to an individual; that in-
dividual may be actuated by the most pure and single-hearted
U Black. Ck)m., p. 199; Flood on 'Newell on L. & S., 814; Clark v.
L. & S.. 84. Molyneux, L. R., 8 Q. B., 237 (C. A.);
sSherwiny.SwiQdall,12M.&W., 47 L. J. (C. L.), 280; Stevens v.
788; L. J. (Ex.), C. B., 237; Flood Sampson, 49 L. J. (C. L.), 120; Flood
on L. & S., 81. on L. & S., 82.
238 UALIOB.
desire to rid society of a mischievous character, and entertaii^
the firmest conviction that he would be doing great good by
it; and yet it is very certain that, in contemplation of law,
any attempt upon his life, his liberty, his person or property,
made in the accomplishment of such a purpose, would be un-
lawful, and therefore malicious. This is founded upon a prin-
ciple, essential to the very existence of a government of laws
and of civil liberty, that no man can be punished except by
the operation of law, and after a trial according with the
forms of law, with such aids and shields as the law affords
him; that individuals cannot take the execution of the law
into their own hands; and that it is the duty of every good
citizen, if he knows of any offense against society, not to as-
sail the offender, but to bring the matter before proper tri-
bunals for inquiry, trial and punishment.^
§ 4. The law implies malice^ when. — '* In many casea
where no malice is expressed the law* will imply it, as when a
man wilfully poisons another; and in such a deliberate act
the law presumes malice, though no particular enmity can be
proved." To present this subject in a few words, malice in
law is such as the law infers to exist without just or lawful
excuse; also, in malice of either "kind, ^' you cannot have shades
and degrees." ^
§ 5. Malice in fact immaterial^ when. — Malice in fact ia
not material so far as regards the accomplishment or comple-
tion of an offense, and it matters not in this respect whether
the malice was entertained by the wrong-doer five minutes or
five years before the commission of the offense.*
§ 6. Express malice or malice in fact defined. — Express
malice is when one with a sedate, deliberate mind and formed
design doth kill (or injure) another, which formed design is
evidenced by external circumstances discovering that inward
intention, as lying in wait, antecedent menaces, former grudges
and concerted schemes to do him bodily (or other) harm.^
iCk>m. ▼. Snelling, 16 Pick. (83 'Stephen's Dig. CrinL Law, 144,
Mass.). 887 (1884); Com. v. Bonner, n. 2.
9 Met. (51 Mass.), 410 (1845). M Black. Com., 199; Flood on L.
2 Stevens v. Sampson, 49 L. J., & S., 84; Rideout v. Knox, 148-
C. L., 120; Flood on L. & S., 35; Mass., 868 (1888); Smith v. Morse,
Wright V. Clark, 50 Vt., 180 (1877). 148 Mass., 407 (1889); State v. Rob-
HALIOE. 239
' It is rarely if ever that express malice or malice in fact is
proven upon the trial of a cause. Its existence lies at the
heart of the wrong-doer and he alone knows its secrets. Its
existence or non-existence is an inference to be drawn from
all the facts in the case.^
§ 7. Malice in law — A wider meaning. — "Malice in law,"
however, is said to be an expression of much wider meaning
than " malice in fact." By this term we are to understand
much more than spite or ill-will; we are to understand what
the Latin word from which " malice " itself is derived con-
veys to us. That word is malitia. Hence " malice in law "
simply means a general wickedness of intent on the part of a
person; a depraved inclination to do harm, or to disregard
the rights or safety of mankind generally — the existence of
which sentiments is made manifest by mischievous or injurious
acts on the part of him who entertains them.*
§ 8. The distinction between malice in law and malice in
fact. — The distinction between " malice in law " and " malice
in fact" is certainly not one that would be evolved naturally
and as a matter of course out of a person's " inner conscious-
ness." It exists, however, and must be understood by those
who would rightly comprehend the law on the subject of
wrongs.'
The true distinction, however, seems to be not so much in
the malice itself as in the evidence by which it is to be estab-
lished. It is malice in both cases. It is in the proof only
that it differs.*
§ 9. The consequences of the distinction. — It is in conse-
quence of the distinction between " malice " in its ordinary
sense and in its legal acceptation that judges, when engaged
in the trials of persons indicted for murder, almost invariably
tell the jury that malice prepense or aforethought merely sig-
nifies a preconceived wicked intent to kill, and that the period
of time elapsing between such conception of a design and the
bins, 66 Me., 824 (1877); Ferguson « Wilson v. Noonan, 85 Wis., 85d
T. Earl of Klnnoul. 9 CI. & F., 321. (1874) ; Wright v. SUte, 41 Tex., 246
1 Usited States v. Meagher (Tex.), (1874); Lewis v. Chapman, 16 N. Y.,
87 Fed. Rep., 879(1888). 869 (1857); Primus v. State, 1 Tex,
« Flood on L. & S., 83. App., 507 (1877).
'Flood on L. & S., 87.
240 ICAUOB.
carrying it into execution is of no consequence in law. The
fact of a person having been known to previously harbor and
express ill-will against the individual whose life he subse-
quently takes may of course be a matter of evidence as to the
intent with which he committed the crime, but it would in no
way intensify the gravity of the charge against him, so far as
the legal offense itself is concerned.^
§ 1 0. Evidence of malice. — The proof of malice need not be
direct; it may be inferred from circumstances, but it is not to
be inferred from the mere fact of the plaintiff's acquittal for
want of the prosecutor's appearance when called, nor, in the
case of a civil suit, from the parties sending out an execution
or neglecting to countermand it after the payment of the
debt, and the like. But it may be inferred from the want of
probable cause. It may be proved by evidence of the de-
fendant's conduct and declarations and his forwardness and
activity in exposing the plaintiff, by publishing the proceed-
ings against him, or by any other acts or publications by the
defendant concerning the charge.'
1 Flood on L. & S., 88. damages for malicious prosecution,
' 2QreeDl. Ev., § 458 ; Purcell t. Mo- testimony of defendant as to a con-
Namara, 9 East, 861 ; 1 Campb., 199; yersation by him with the prosecut-
Sykes v. Dunbar, 1 Campb., 202, n. ; ing attorney and a justice of the
Gibson v. Charters, 2 B. & P., 129; peace as to a previous prosecution
Chambers v. Robinson, 1 Stra., 691. of plaintiff for a similar offense,
"Where there is a wanton, gross, reck- which was settled by her paying the
less disregard of the rights of another costs, testimony of a third person aJB
in inptituting a prosecution, as where to her seeing plaintiff picking the
confessedly there is no excuse for' berries, for theft of which the prose-
it, -^ no reasonable ground, — the cution complained of was brought,
jury may find the prosecution ma- and testimony of a witness as to a
licious, though there is no direct tee- conversation with another third
tlBiony of prior trouble, ill- will or party about plaintiff's having been
grudge. Blunk v. Atchison, T. & seen picking berries in defendant's
S. F. R. Co., 88 Fed. Rep., 811. But field, is all immaterial and inadmis-
mere dislike or ill-will towards one sible on the question of malice. Wil-
by another does not constitute malice son v. Bowen (Mich.), 81 N. W, Rep.,
in the legal sense. There must be 81. It was proper to charge the jury
some act done by defendant with that in determining defendant's mal-
intent to injure plaintiff, and such ice they might consider any state-
act must be wrongful, and done with- ments which they found were made
out legal justification or excuse, by him in which he expressed iU-
Peck V. Chouteau, 91 Mo., 188; 8 feeling against the plaintiff. Thurs-
8. W. Rep., 577. In an action for ton v. Wright, 77 Mich., 96; 43
MALICE. 341
Applications of the law. —
(1) Declarations of ill-vnU evidence of malice.
The defendant filed an information before a justice of the peace charg-
ing!: plaintiff with the crime of petit larceny. A warrant was issued, and
plaintiff was arrested thereon. Upon a trial before the justice he was dis-
charged.
On the trial of a suit for malicious prosecution which followed, the plaint-
iff recovered and the defendant appealed.
A witness for the plaintiff was permitted to testify, against defendant's
objection, to a conversation had with defendant some time before the
prosecution was instituted, in which defendant declared that he intended
to assist another in a lawsuit against such person and plaintiff ; that he
believed that plaintiff was Thonging his adversary, and that he believed
that plaintiff was a rascal.
Beck, J. : The admission of this evidence is now complained of by de-
fendant. There was other evidence tending to show hostility and enmity
on the part of defendant towards plaintiff. The evidence objected to, we
think, was properly admitted, to show the relations between the parties,
and the feelings of hostility and enmity entertained by defendant towards
the other party. When such feelings exist, malice may be more readily
inferred from proper testimony.
Men do not institute unfounded prosecution of their friends, and we can
hardly suppose a case where a trivial prosecution of this character would
be commenced unless an ill-feeling existed between the parties; audit
must be admitted that in most, if not all, cases where malicious prosecu-
tions without probable cause are instituted, they are prompted by feelings
of hostility and enmity. The evidence in question tends to show hostility
and unfriendly feeling entertained by defendant toward plaintiff, which
it would be proper for the jury to consider in determining the animus of
defendant in instituting the prosecution. The court did not err in admit-
ting the evidence.
Counsel of defendant insist that the verdict was not sufficiently sup-
ported by the evidence, and that the court, therefore, erred in overruling
a motion for a new trial based upon that ground. Counsel claim that the
proof fails to show the malice of defendant and want of probable cause for
the prosecution. We confess that upon these points the evidence hardly
satisfies our minds, but we are clear that there is not such an absence of
evidence thereon as to justify us in reversing the judgment. The rules
that govern us in such a case are familiar and of almost daily application.
There was evidence tending to show the hostility and enmity of defend-
ant towards the plaintiff. The defendant had also expressed an opinion
unfavorable to plaintiff's honesty, and had intimated that he was guilty of
other crimes of the character of the one charged in the information. This
N. W. Rep., 860. Testimony of the bearing upon the question of malice,
plaintiff, upon direct examination, as Thurston v. Wright, 77 Mich. , 96 ; 48
to his having had a difficulty with N. W. Rep., 860.
•defendant, is proper where it has a
.16
242 MALIOB.
evidence, In connection with other testimony offered at the trial, tends to
show the malice of defendant. We cannot say that upon this point there
is a total failure of evidence. Judgment affirmed. Broington ▼• Win-
gate, 55 Iowa, 140; 7 N. W. Bep., 479 (1880).
(2) Defendant may testify as to his intent or motive.
The defendant was examined as a witness in his own hehalf at the trials
And the following questions were asked by his counsel, namely : " State as
to whether, when you made that complaint, you believed it to be true."^
" State whether, when at the time you made this complaint before Esquire
Merrill, you believed it to be true/' To both of which counsel for plaintiff
objected, for the reason that his belief in the truth of the complaint was a
question for the jury. The court sustained the objection and excluded the
evidence.
In reversing the trial court, Champlin, J., said:
** It was incumbent upon the plaintiff to establish by competent evidence
that the proceeding before the justice was instituted by the defendant
without any probable cause, and that his motive for instituting the prose-
cution was malicious. Whatever the plaintiff must prove, the defendant
may disprove. He may show that he was not actuated by malice, and also
that there was probable cause. One of the pertinent facts to show the ex-
istence of probable cause was the belief of the defendant that the crime
charged in the complaint was true. It also had a bearing upon the ques-
tion of malice. The defendant was entitled to prove that he believed the
complaint to be true when he made it, and he was a competent witness to
testify to it in his own behalf. His so testifying would not necessarily
establish the fact that he did believe the complaint to be true. Tne jury
must determine that from all the evidence, and they are to give to defend-
ant's testimony such weight as they think it deserves, like that of any
other v^itness. Mere belief, however, of the truth of the complaint, al-
though an element embraced in the issue of probable cause, would not be
sufficient of itself to justify a party in instituting a criminal prosecution.
Such belief must rest upon reasonable grounds, and be induced by such a
state of facts as would lead a man of ordinary prudence and caution to en-
tertain an honest and strong suspicion that the accused is guilty of tho
offense charged.
'* It has become the settled law in this state (Michigan) that in cases whera
intent or motive are involved in the issue, the person to whom such inter-
est or motive is imputed is a competent witness to testify in regard thereto
(Watkins v. Wallace, 19 Mich., 57), unless he is rendered incompetent by
some statutory inhibition, or where such testimony would be excluded by
other well-recognized principles of the law of evidence." Spalding y»
Lowe, 56 Mich., 866; 28 N. W. Rep., 46 (1885).
(8) Good faith and honest belief are mental conditions of which defendant
may testify.
The defendant, as a witness, was asked: "At the time you made the-
complaint did you believe Sherburne had sworn falsely?" ** At the tiUiO^
you made the complaint did you make it in good faith? " '* In making the
MALICE. 243
complaint af^ainat Sherborne for perjury, were you actuated by malice, or
did you make it believing he was guilty of perjury, and that he might be
punished therefor?" These questions were objected to and the objection
sustained, and as they are of the same nature, and rest upon the same rule
of admissibility, they will be considered together.
Orton, J. : "In actions for malicious prosecution, the want of prob-
able cause and malice must concur, and the defendant is allowed, if he
can, to disprove either. Spain v. Howe, 25 Wis., 635; Plath v. Brauns-
dorflf, 40 Wis.. 107; McKown v. Hunter, 30 N. Y., 625. The intent, good
faith and honest belief of the defendant are mental conditions which can
be proved only indirectly, presumptively and inferentially by the facts
and circumstances of the case. Malice being a fact to be proved and di-
rectly in issue, now, since parties are allowed to be witnesses, there seems
to be no good reason why the party who alone can positively and directly
know and testify to such fact, or in contradiction of such fact* may not so
testify by any and all accepted rules of evidence. We think that within
the reason of Wilson v. Noonan, 35 Wis., 321, and according to the au-
thorities cited by the learned counsel of the appellant, these questions
were proper in this case, going to the question of actual malice, and strictly
the circuit court erred in sustaining the objection of the plaintiff to the
admissibility of the testimony so offered.*' Sherburne v. Rodman, 51 Wis.,
474; 8 N. W. Rep., 414 (1881).
(4) Motive of the prosecutor — A desire to make an example for the pur-
pose of of deterring others — No evidence of malice,
A doctrine which appears to have been sustained by the opinion of two
members of the court of exchequer (Stevens v. Railway Co., 10 Ezch., 852)
does not appear to have been generally recognized in this country. It might
have been properly applied to the case which was before that court at that
time, because there were circumstances indicating that the charge had been
trumped up. The doctrine announced by Alderson, B., was this: *' Any
motive other than that of simply instituting a prosecution for the purpose
of bringing a person to justice is a malicious motive on the part of the per-
son who acts in that way. And it appears to me that the prosecution of a
person for the purpose of frightening others, and thereby deterring them
from committing depredations upon property, is not a motive of such a di-
rect character as to afford a legitimate foundation for a criminal prosecu-
tion.'' And Martin, B., in the same case, said : " I think that the fact of
the defendant prosecuting the plaintiff, not for the purpose of punishing
him, but to make an example to others, is ample evidence of malice.*' In
so far as any general test of the right purpose of instituting a prosecution
is there hinted at, it seems at variance with sound principle. The most
elevated motive that can possibly be entertained for prosecuting anybody
is to make an example for the benefit of the public ; the next is to make
an example for the benefit of individuals other than self ; and the next is
to make an example for the benefit of one's self. The bringing of any-
body to justice, without regard to its effect for good by way of example,
is excusable but not commendable. Such a motive of the prosecution
seems to be a proper one, being the desire to deter others from commit-
M^ MALICE.
ting crime bj making an example of the alleged criminal; but no one has
a right to make any person an example unless he is guilty, and it will not
do to proceed against him for example or anything else unless the person
prosecuting honestly and in good faith believes him to be guilty and had
good and probable grounds upon which to base the opinion. I cannot see
anything to criticise in the motive of such prosecutor who candidly avows
that he does not want to hurt the accused, but simply wants to make him
an example to deter others. Siich a mental attitude towards offenders is
that of the law itself. Coleman v. Allen, 7tf Qa., 6d7; 6 S. E. Rep., 204
(1888).
(5) Witne88' opinion that the prosecutor appeared vindictive not competent.
On the trial of an action for malicious prosecution, the court permitted
the plaintiff to call a witness*, who was present at the examination of the
plaintiff on a certain charge and heard the defendant testify against the
plaintiff, and allowed the witness to give his opinion of the appearance of
the defendant on the stand, and that he was vindictive. Held, that there
was no principle of law under which the admission of such evidence
could be justified. Ames v. Schneider, 69 III., 876 (1878).
(6) A multiplicity of suits — Evidence of malice^ etc.
In an action to recover damages for the malicious prosecution of a
replevin suit, the plaintiff was permitted to give, under objection, evi-
dence of other actions of replevin subsequently commenced by the de-
fendant against him; also evidence of actions brought by the defend-
ant against him to recover po&session of the premises which the latter
occupied for a bakery. The complaint charges that the defendant mali-
ciously, and without probable cause, instituted a replevin suit February 29,
1884, and caused to be seized a top wagon, sleigh and three sets of harness
which the plaintiff owned, and needed to deliver his bread and rolls daily
to his customers, and that this was done with the intention to injure him
in his business. One or more of the actions which the plaintiff was al-
lowed to prove were brought prior to the 29th of February ; but the whole
■series related to the same personal property or to the possession of the
bakery which the defendant owned ; and all these actions were either dis-
continued by the defendant, or were decided against him. In the replevin
-suit described in the complaint, the defendant based his claim to the prop-
erty seized upon a chattel mortgage, which was given by the plaintiff to
his son in November, 1883, to secure the payment of a note of $75. This
note had been paid and taken up by the maker. The defendant took an
assignment of the mortgage from the son, while the instrument was off
the record after it had been discharged, giving in fact nothing for the as-
signment. The evidence in regard to these successive suits of replevin and
for tbe unlawful detainer of the bakery was received by the trial court as
bearing upon the question of the defendant's malice in bringing the action
of the 29th of February, described in the complaint.
Cole, J. : "The question is, was the evidence legally admissible for that
purpose? It seems to us that it was. In order to recover, it was essential
MALICE. 245
for the plaintiff to prove both the want of probable cause in bringing
the replevin suit, and malice on the part of the defendant. There was no
direct proof of malice. It had to be shown by circumstances. Bringing
one replevin suit, even upon an unfounded claim, might not be very cogent
or satisfactory proof that the defendant was acting maliciously and with-
out probable cause ; but the bringing of a series of suits, upon the same
gioundless claim, for the same property, would afford the clearest and
most irresistible proof that he was acting maliciously and with intent to
injure and oppress the plaintiff; for it is inconceivable that a man, acting
from good motives, and honest intention of enforcing only what he
deems to be his right, should persist in bringing one suit after another on
the same groundless claim. Such conduct is strong evidence of malico
and want of probable cause." Magmer v. Benk, 65 Wis., 864; 27 N. W.
Rep., 26 (1886).
§ 1 1. Undae pablicity of arrests — Eyidence of malice. —
Persons who set the machinery of the law in motion, when
acting in good faith, are not required by any public motives
or otherwise to give undue publicity to arrests. The law does
not permit a person to maliciously cause the arrest of another
without any probable cause, to give undue publicity to the
matter, and should he do so^ it is competent to prove the same
as evidence of malice.^
Application op the sulb. —
Undue publicity — Publishing accounts of arrests in newspapers.
Upon the refusal of Cooney to pay over some money claimed by Chase,
the defendant made a complaint before the recorder of the city of Kala-
mazoo against Cooney for larceny of the money. This complaint was found
defective; and on February 8, 1888, Cooney, having been brought into
court under warrant, was discharged, and the warrant returned. On Feb-
ruary 9, 1888, Cooney commenced an action of malicious prosecution. On
February 11th, two days thereafter, the defendant made another complaint
for embezzlement and larceny against Cooney before the recorder. War-
rant was issued, and Cooney arrested thereon, and taken before the re-
corder. This examination was adjourned from time to time until July 28,
1888, when Cooney, after a full examination, was discharged. On the trial
of the case for malicious prosecution, the plaintiff had verdict and judg-
ment for $1,000. Defendant brings error. After the warrant was issued,
it was put into the hands of the sheriff, who was advised by the defendant
to look after Cooney, as he might leave the city. While the sheriff did not
take the plaintiff into actual custody on the warrant, yet he advised him
he must not leave the city. He was kept and detained for several days
1 Allison V. Chandler, 11 Mich., 664 (1863); Cooney v. Chase (Mich.), 45
N.W. Rep., 883 (1890).
■$i6 MALIOS.
■ *
mnder the firat wajrant, and finally discharged. Under the second arrest»
%e was also held« and required to appear at the court on several occasions,
though no bail was required. Plaintiff claims that he made an effort to
Hceep the matter of his arrest out of the public press, but that Chase caused
it to be published, and the affair was noticed in several newspapers. Chase
admitted that he took an article to one of the newspapers in Kalamazoo,
for publication, stating the arrest of Cooney. It was claimed on the trial
by plaintiff, and testimony introduced tending to show the fact, that the
plaintiff had sustained great damage to his business by reason of the arrest
and the publicity given to it by the defendant. And the admission of this
testimony was assigned for error.
. * Long, J. : This evidence was properly admitted. It would be a strange
rule that would permit one to maliciously cause the arrest of another
without any probable cause, to give publicity to the arrest to an extent
that his business friends and acquaintances desert him, and withdraw their
support and trade, and then deny relief or satisfaction for such wrongs.
The plaintiff was entitled to put this element of damage before the jury,
and the court was not in error in receiving the testimony. This element
of damage has been repeatedly recognized by this court. Allison v.
Chandler, 11 Mich., 554; Qilbert v. Kennedy, 22 Mich., 117. The court was
not in error in permitting the plaintiff to show the publicity given to the
arrest, and the part Chase took in giving the facts to the press. It was not
only competent as one of the facts tending to show the extent of the plaint-
iff's damages, but as tending strongly to show malice. Cooney v. Chase
(Mich.), 45 N. W. Rep., 833 (1890).
§ 12. Malice and the want of probable cause must exist
/ concurrently in actions for nialicions prosecution. — In order
to maintain an action for malicious prosecution, the burden of
proof is upon the plaintiff to show the concurrent existence of
malice and the want of probable or reasonable cause in the
institution of the proceeding complained of. To show the ex-
istence of malice and not the want of probable or reasonable
cause, or to show the existence of the want of probable or rea*
sonable cause without the concurrent existence of malice,
must in either case be fatal to the action. They are both es-
sential ingredients of the action and must exist concurrently.^
But it is not necessary in all cases to make proof of malice;
its existence may bo inferred from the want of probable or
reasonable cause.^
1 2 Oreeol. Ev., § 458; Farmer v. 278; HaU v. Suydam, 6 Barb. (N. Y.),
Darling, 4 Burr., 1971; Stone v. 88(1849).
Crocker, 24 Pick. (Mass.), 81 (1881); '2 Greenl. Ev., § 458; Murray v.
BeU V. Graham, 1 Nott «: MoC., Long, 1 Wend. (N. Y.), 440 (1828);
Turner v. Turner, Gow, 20.
MAUCS. 24T
§ 1 3. Malice may be inferred from the want of probable
eaase. — The burden of showiDg that the proseoution com*
plained of was maliciousris upon the plaintiff;^ but if a want
of probable cause is shown, malice may be inferred, but the
deduction is not a necessary one.' Legal malice is sufficiently
proven by showing that the proceeding was instituted from
any improper or wrongful motive, and it is not essential that
actual malevolence or corrupt design be shown.'
§ 14. Want of probable cause — Evidence of malice. —
Malice is any wrong or unjustifiable motive. Of the existence
of this, the want of probable cause is not only evidence, but
very strong evidence. He who will prosecute his neighbor for
a crime of which he has no reason to believe him guilty surely
cannot he-influenced by private friendship, a love of justice^
or any other justifiable motive.^
§ 16. Tlie existence of malice a qnestion for the jnry. —
The question as to what in a legal sense constitutes malice,
whether malice in fact or malice in law, and the legal defini-
tions of the terms, being purely questions of law, are for the
court; but the question of the existence of the circumstances
which go to make up the essential elements of malice in a
particular case is purely a question of fact and is for the jury
to determine.*
iFleckinger v. Wagner, 46 Md., Rep., 802(1888). In a malicious pros-
SSI (1881); McKnown v. Hunter, 80 ecution it appeared that there wa^
N. Y., 625(1864); Dietz v. Langfltt, a dispute about the ownership of
68 Pa. St., 234 (1869U SavUl v. Rob- certain horses delivered to plaintiff
erts, 1 Salk., 14; Williams v. Taylor, by defendant on a contract of sale,^
6Bing., 188; 2 Oreenl. Ev., § 468. under which plaintiff claimed the
2 Merriam v. Mitchell, 18 Me., 489 right to hold them ; that a small part
(1836); Pangbum T. Bull, 1 Wend., of the purchase-money had been
345 (1828) ; Mowry v. Whipple, 8 R. I., paid ; that the defendant had taken
860 (1866); Couper v. Utterbach, 37 the horses from plaintiff by force;
Md., 282 (1872); Harpham v. Whit- that plaintiff retook them and was
ney, 77 111., 82 (1875); HoUiday v. arrested by defendant for larceny;
Sterling, 62 Mo., 821 (1876). and that the county attorney told
* Cooley on Torts, 185 ; Page v. defendant that there was no ground
Cushing, 88 Me., 523(1854); Baron v. for a criminal charge of larceny, but
Mason, 81 Vt, 189 (1858); Harpham that he acted on advice of other coun-
V. Whitney, 77 111., 82 (1875). sel. Defendant testified that he did
4 Wilder v. Holden, 41 Mass., 8 not think plaintiff was a horse thief ;
<1888). that be locked the horses in the barn,
^United States ▼• King, 84 Fed. and saw plaintiff pull the door open ;
248 MALICE.
§ 16. Malice a question for the jury — The general rule. —
Malice may be inferred by the jury from want of probable
cause, but is not presumed by the law mainly for that reason.^
It may also be inferred from evidence of an intention to use
criminal process as a means of compelling the settlement of a
disputed claim.' It may be proved by evidence of defendant's
conduct, admissions and declarations, showing ill-willy pas-
sion or vindictiveness, and his forwardness or activity in ex-
posing the plaintiff by a publication of the proceedings against
him,' and so also if he knowingly and wilfully institute a
groundless prosecution. It is said : ^' The malice necessary to
be shown, in order to maintain this action, is not necessarily
revenge, or other base or malignant passion. Whatever is
done wilfully and purposely, if it be at the same time wrong-
ful and unlawful, and that known to the party, is in legal
contemplation malicious. That which is done contrary to
one's own conviction of duty, or with a wilful disregard of
the rights of others, whether it be to compass some unlawful
end, or some lawful end by unlawful means, or to do a
wrong and unlawful act, knowing it to be such, constitutes
legal malice." * But the general rule is that the question of
malice is for the jury, though it may be true that in some
cases the evidence of want of probable cause and of intentional
wrong may be so clear as to authorize the court to hold that
certain undisputed facts establish a, prima facie case, warrant-
ing a verdict unless rebutted.'
§ 17. Malice In actions for malicious prosecution — The
law stated by Shaw^ C. J. — " The malice necessary to be
shown in order to maintain the action for malicious prosecu-
tion is not necessarily revenge or other base and malignant
that he did not call what he did steal- * 2 Greenl. Ev. , § 453.
ing; that when he made the com- ^ Wills v. Noyes, 12 Pick., 828.
plaint he supposed plaintiff had ^Bartlett v. Hawley, 88 Minn.,
stolen them; and that he did not 808; 37 N. W. Rep., 58 (1888);
make it maliciously. Held, that the Briggs v. Richmond, 10 Pick., 395.
question of malice was for the jury. And see Kavanagh v. Beck with, 44
Bartlett v. Hawley, 38 Minn., 808; Barb., 195; Robinson v. Stewart, 10
87 N. W. Rep., 580. N, Y., 194; Cunningham ▼. Free-
1 Bartlett v. Hawlej. 88 Minn., bom, 11 Wend., 241; Webb ▼. Dag-
SOS; 87 N. W. Rep., 580 (1888). gett, 2 Barb., 12.
>Grinnell v. Stewart, 82 Barb.,
S50; Add. Torts, 226.
MALICB. 24^
passion. Whatever is done wilfully and purposely, if it be at
the same time wrong and unlawful, and that known to the-
party, is in legal contemplation malicious. That which is-
done contrary to one's own conviction of duty, or with a wil-
ful disregard of the rights of others, whether it be to eompass-
some unlawful end, or some lawful end by unlawful means^
or to do a wrong and unlawful act knowing it to be sucb^
constitutes legal malice." ^
§17. Malice in actions for false imprisonment. — The-
existence of malice is not an essential ingredient of the plaint-
iff's case in an action for false imprisonment. Its existence-
may, however, be shown for the purpose of enhancing the
damages sought to be recovered. The defendant may show
his good faith and the absence of malice in the matter com*
plained of for the purpose of mitigating the damages, nnles^-
the plaintiff stipulates to confine his recovery to the actual
damages sustained, in which case the question of malice seem^-
to be entirely eliminated from the case.
iWUls ▼. Noyes, 29 Mass., 824 oomb, 4 Bing., 100; 1 East's Repv
(1882) ; United States v. Buggies, 6 567, n.
Mason, 192 (1828); Locker ▼. Hoi-
CHAPTER VIL
PROBABLE CAUSE.
$ 1. Reasonable or probable cause defined.
2. The point of inquiry — The law stated by Shaw, G. J.
The subject illustrated.
(1) What is reasonable or probable cause.
(a) Conviction before a magistrate — Acquittal on appeal -^
Advice of counsel.
(b) Facts constituting probable caupe.
(c) Suing out an attachment.
(d) Circumstances showing probable cause.
(e) Want of probable cause appearing from circumstanoes.
(2) What is not reasonable or probable cause.
(a) Circumstances showing no reasonable or probable
cause.
(b) Abuse of process — Want of probable cause.
(c) Maliciously swearing out a peace warrant, eta
(d) Facts not amounting to probable cause.
{e) Want of probable cause and abuse of process.
41. Malice and want of probable case must concur.
The law illustrated.
(1) Concurrence of malice and want of probable cause.
(2) SufiSciency of facts to justify an arrest.
4, Reasonablt^ cause an element of the plain tifTs case — Honest and
reasonable belief.
Digest of recent cases.
5. The right to judge from appearances as to the existence of probable
cause.
Application of the law. .
(1) A person may judge from appearances, eta
(2) A man's conduct may justify a suspicion.
€, Good faith on the part of the prosecutor.
Application of the law.
(1) Municipal officers prosecuting saloon-keepers under a void
charter — Advice of counsel, eta
(2) Arrest for theft — Settlement and discharge.
(8) A want of probable cause.
(4) Suing out and levying a distress warrant.
7. Character of the plaintiff an element in the question of probable
cause.
Application of the law.
Character of the accused an element of probable causa
,$ 8. Gross Deglifi;ence--Error--M]stake» eta— -As affecting probable cause.
Application of the law.
A belief indaced by ^rror and negligence.
9. Ignorance of the law excuses no perton.
10. Character of the accused where the charge is made upon information
and belief.
11. Probable cause, a mixed question of law and fact.
12. Discussion of the subject.
18. Province of the court and jury.
14. The law stated by Marcy, C. J.
15. The law stated by Morton, J.
Application of the law. ^
(1) The action for malicious prosecution.
(2) Where the facts are undisputed the question of probable
cause is for the court.
16. Province of the court and jury — Malice and probable cause.
Digest of recent cases.
17. Evidence of the want of probable cause.
Digest of recent cases.
18. Proof of want of probable cause, eta
19. Evidence of probable causa
L Conclusive evidence.
Applications of the law.
(1) A conviction before a justice for the identical oharga
(2) Verdict of guilty founded upon correct instructions.
(8) A verdict for a set-off in a civil suit
(4) A verdict of guilty in a criminal prosecution*
(5) Conviction before a justice reversed on appeaL
(6) Conviction before a justice in a criminal casa
(7) A collateral judgment.
IL Prima facie evidence.
Applications of the law.
(1) Disagreement of a jury.
(2) Conviction before a magistrate reversed on appeaL
(8) A reversed decree in a civil suit
(4) Signs, etc., displayed — Inference, eta
20. Acquittal of the accused not evidence of a want of probable cauise —
The contrary rule stated by Walker, J.
Digest of recent cases.
(1) Evidence in general.
(2) Sufficient evidence.
(8) Prima facie evidence.
HI, Judgments and decrees of trial courts — How far conclusive evidence
of probable cause — Review of the authorities and discussion of
the subject
22. The correct rule.
Applications of the law.
(1) Judgments of trial courts — How far conclusive evidence of
probable cause.
Judgment obtained by ex parte proceedings not conclusive.
252 PROBABLE CAUSE.
g 28. Testimony on a preliminary examination competent on the qneBtioo
of probable cause.
24. Character — Its effect on the question of probable cause.
25. Plaintiff's bad character competent to rebut want of probable caoflew
26. Probable cause — Admission of its existence.
i
The law illustrated.
(1) Settlement of a suit by paying the demand.
(2) Payment of demand estops the plaintiff from saying there
was want of probable cause.
(8) Waiving examination before magistrate not an admission off
probable cause, eta
27. The question of probable cause in actions for false imprisonment
28. Probable cause and absence of malice no bar to an action for fate
imprisonment.
I ^%1. Beasonable or probable cause deflned.-Tr Reasonable
' or probable cause is defined to be sacb a state of facts in the
mind of the prosecutor as would lead a person of ordinary
caution and prudence to believe, or entertain an honest and
strong suspicion, that the person is guilty.^ It does not de-
pend on the actual state of the case in point of fact, but upon
the honest and reasonable belief of the party commencing the
prosecution.^ , ^
§ 2. The point of inqairy — The law stated by Shaw^ G. J.
In order to maintain the action for malicious prosecution, it is
very clear that the plaintiff mast aver and prove that the suit
complained of was commenced and prosecuted without rea-
sonable or probable cause, and that it was malicious. The
groundlessness of the suit may, in many instances, be so ob-
vious and palpable that the existence of malice may be in-
ferred from it. The question of probable cause applies to the
nature of the suit; and the point of inquiry is, whether the
defendant had probable cause to maintain the particular suit
upon the existing facts known to him.*
1 Harpham et al. v. Whitney, 77 as would excite belief in a reason-
Hi., 82 (1875) ; Bacon v. Towne et al., able mind, acting on the facts within
4Cush. (58Mass.)> 217 (1849). the knowledge of the prosecutor^
s James ▼. Phelps, 11 Ad. A £1., that the person accused was guil^.
488, 489; Foshaj v. Ferguson, 2 Held, that the definition was cor>
Denio (N. Y.), 617 (1846> At the rect. Glasgow ▼. Owen, 69 Tex.^
trial of a suit for malicious prosecu- 167 ; 6 S. W. Rep., 627 (1887).
tion, the court, in an instruction, de- * Wills t. Noyes^ 29 Maaa., 824
fined '* probable cause " as the exist- (1882).
enoe of such facts and circumstance n
probable cause. 253
The subject illustrated. —
(1) What is reasonable or probable cause,
(a) Conviction before tlie magistrate — Acquittal on appeal — Probable
cause — Advice of counsel, — In an action for malicious prosecution, the
<x)cnplaint alleged that the defendant instituted beforea justice of the peace
A prosecution afirainst the plaintiff, charging the appellant with having ob-
structed a public highway. It appeared from the averments of the com-
plaint that the appellant was convicted before a justice of the peace, and
he took an appeal to the circuit court and was acquitted of the charge.
The complaint contained proper averments that the prosecution was ma-
licious and without probable cause ; but there were no averments that the
oonvlction before the justice was procured by perjury or subornation of
perjury on the part of the appellee, or by fraud or collusion or any im-
proper motives on the part of the justice. A demurrer was sustained to
the complaint. The plaintiff took appeal.
Olds, C. J. : The sole question presented is as to whether the complaint
U rendered defective on account of it showing that there was a conviction
of the appellant before the justice of the peace. It is contended by coun-
sel for appellee that the fact that the appellant was convicted by the justice,
in the absence of averments that such conviction was procured by perjury
or subornation of perjury on the part of the appellee, or showing that it'
was procured by fraud or collusion on his part, rebuts the other averments of
malice and want of probable cause, and is conclusive evidence of probable
cause, and exonerates the appellee from liability. On the other hand, it is
contended by counsel for appellant that the appeal operated to vacate the
judgment before the justice, and the cause came up in the circuit court for
a trial de novo; that it is the same as if a new trial had been granted by the
justice, and hence is not conclusive evidence that probable cause existed
for instituting the prosecution. The decisions of the court are not uniform
upon the question presented, but we think the great weight of authority
ts to the effect that the judgment of the justice's court, though appealed
from, and an acquittal had in the circuit court, is, in the absence of fraud,
conclusive of probable cause. Cooley, Torts (2d ed.), p. 185, states the law
to be: **If the defendant is convicted on the first instance, and appeals,
and is acquitted in the appellate court, the conviction below is conclusive
of probable cause.'' Stephen, in his work on the law relating to actions
for malicious prosecutions, says: '*It seems probable that the reversal on
appeal of a conviction is not a termination favorable to the person con-
victed, upon which he can found an action for malicious prosecution."
Reynolds v. Kennedy, 1 Wils., 232 (1748), which has frequently been quotet}
a 4 an authority, was an appeal from the court of king's bench in Ireland.
The declaration was for seizing the plaintiffs brandy, and falsely and ma-
liciously exhibiting an information against him before thesuboommissioners
of excise for not having paid duty upon it. It alleged that the subcom-
missioners condemned the brandy, and that the commissioners of appeal
'* most justly reversed the judgment of the subcommissioners." It was
held that, as to the information before the subcommissioners, the declara-
tion showed a foundation for the prosecution, and that, as to the appeal*
£54 PBOBABL8 GAUSS.
" we cannot infer from the judgment of reTenal of the oommisBionen of
appeal, tliat the defendant, the prosecutor, was guilty of any malice.*'
In GriflSa ▼. Sellars, 2 Dev. & B., 493, a well-reasoned case, it is held
that, where there was a trial and conviction in the county court, and an
appeal taken to the superior court, where the defendant was acquitted, it
was conclusive of probable cause, and that a defendant in such case could
not maintain an action for malicious prosecution ; and the declaration was
held bad for this reason. In the case of Clements v. Apparatus Co., 10
Atl. Rep., 442, the supreme court of Maryland, in a case for malicious
prosecution, in a case where there had been a judgment in favor of the de-
fendant in tfje case upon which the prosecution was based, which judg-
ment had been reversed, said: " It was the deliberate judgment of a court
of competent jurisdiction that there was not only a probable cause for filing
the bill for injunction, but that the appellee was entitletl to the relief
prayed. A judgment thus rendered ought to be considered conclusive as
to the question of probable cause, although it was reversed on appeal by
the supreme court; otherwise, in every case of reversal an action would lie
for the institution of the original suit." Whitney v. Peckham, 15 Mass.,
243, is a case directly in point. The plaintiff in that case was arrested for
an alleged assault and battery, and tried and convicted before the justice.
On appeal to the circuit court of common pleas he was acquitted. The
supreme court held that the conviction before the justice, he having juris-
diction of the subject-matter, was conclusive evidence that there was prob-
able cause. Parker v. Huntington, 2 Gray, 124; Parker v. Farley, lO
Cush., 279. In Bitting v. Ten Eyck, 82 Ind., 431, it is said by this court:
*' The conviction of the plaintiff is always evidence of probable cause, un-
less it was obtained chiefly or wholly by the false testimony of the defend-
ant. Generally it is conclusive evidence of probable cause." It is further
said: *' And it has been held sufficient evidence of probable cause to show
that the plaintiff was convicted of the offense before a justice of the peace
who had jurisdiction, although he was afterwards acqi^itted on appeal.*'
These decisions are in accordance with other holdings in regard to the law
governing malicious prosecutions. The burden of proof rests upon the
plaintiff in such cases to prove the want of probable cause ; and, in this
class of cases, it has been held that where one lays all the facts before
counsel, and acts in good faith upon an opinion given, it exonerates him
from liability. In Cooley, Torts, page 188, Mr. Cooley says : *• It may per-
haps turn out that the complainant, instead of relying upon his own judg-
ment, has taken the advice of counsel learned in the law, and acted upon
that. This should be safer and more reliable than his own judgment, not
<yly because it is the advice of one who can view the facts calmly and dis-
passionately, but because he is capable of judging of the facts in their legal
bearings. A prudent man is therefore .expected to take such advice, and
when he does so, and places all the facts before his counsel, and acts upon
his opinion, proof of the facts makes out a case of pr9bable cause, provided
the disclosure appears to have been full and fair, and not to have withheld
any of the material facts ; *' and this doctrine is adhered to by this court,
and is distinctly and clearly stated in the case of Paddock v. Watts, 116
Ind., 146-161, as follows: ** Where one lays all the facts before counsel, and
PROBABLE 0AU8B. 25&
acts in good faith upon an opinion given, he Is not liable to an action, even
though it turn out that he was mistaken* But, in order that he may obtain
immunity, he must have made a full and fair statement of all the faot»
known to him.*'
When the question arises upon the evidence, it is usually a controverte<i
fact as to whether the defendant did make a full and fair statement of all
the facts know to him, and acted in good faith on the opinion given ; but,,
should it afSrmatively appear in a complaint that the defendant did make
a full and fair statement to counsel, and in good faith acted upon an opin-
ion given, it would seem that it would show a case of probable cause on
the part of the defendant, and render the complaint insufficient to with-
stand a demurrer; or, if such a state of facts should be pleaded as a de-
fense, it would be good to withstand a demurrer. If it be a good defense,
then it destroys the plaintiff's right of action, when it is fully stated in hi9
complaint. One of the reasons upon which this rule is based is that when
the prosecuting witness acts upon facts which are of such a character a9>
that when they are stated to a calm and dispassionate person capable of
judging, they lead him to conclude the person charged is guilty, they are
such as to make a case of probable cause on which the prosecuting witness
has the right to act. So, in relation to a case like the one at bar, if the
facts are such as lead a court of competent jurisdiction to try the offense
to act upon them, and find- the defendant guilty, then it makes out a case
of probable cause, and conclusively exonerates the prosecuting witness
from liability, although an* appeal may be taken, and an acquittal had in
the appellate court. As said in Paddock v. Watts, supra: ** If he lays all
the facts before counsel, and acts in good faith tipon an opinion given, he
is not liable, though it turn out that he was mistaken." So it may be said
in a case where the judgment of conviction is appealed from, and an ac-
quittal had, if the prosecuting witness presented the facts to one court,
competent to try the cause, and the court found the defendant guilty, it
makes out a case of probable cause and exonerates him from liability,,
though that court erred in its judgment. This is undoubtedly the true
ruleb It is the duty of citizens when they are in possession of facts which,
when fully and fairly presented to a calm and dispassionate lawyer, capa-
ble of determining whether such facts constitute a crime such as should
be prosecuted and punished, or sufficient, when presented to a court hav-
ing jurisdiction to try the offense, to lead the court to act upon them, and
find the defendant guilty, to take legal steps for the punishment of such
offenders ; and they should, when they act in good faith upon such facts,,
be exonerated from any liability in an action for malicious prosecution. If
it was averred or shown, by the c6mplaint in this case, that such convic-
tion had been procured by perjury or subornation of perjury on the part
of the appellee, or by any fraud or collusion on his part, it would present
a different question ; but it contains no such averments. The conclusion
we have reached being in harmony with the ruling of the circuit courts
the judgment must be affirmed. Adams v. Bicknell, 126 Ind., 210; 25 N»
E. Bep., 804 (1890).
(6) Facts constituting probable cause,— Moore brought a suit against the^
Northern Pacific Railroad Company and others for a malicious prosecution*
:S56 PROBABLE CAUSE.
On the trial the jury foand in favor of Moore, and the railroad company
appealed. It appeared that a quantity of fence wire on apools and kegs of
-Ataplea had been stolen from the defendant, the railroad company. The
<x>mpany employed a detective agency to make investigation, and asoer-
.^ain the facts relating to the larceny. The agency sent a detective, Gib-
son, who, after making some investigation, reported to one of the ofScers
-of the road, and was referred by him to the general attorney of the com-
fMiny at St. Paul, Mr. Clough, who had charge of its legal affairs, and who
iSiad been requested to investigate this matter. Qibson having stated to
iiim the substance of what was afterwards embodied in the affidavits
itiereafter referred to, the attorney, Mr. Clough, sent to another attorney,
^ Mr. Fernold, to take and send to him the depositions of the persons re-
ferred to by GibsoD. The parties referred to were brought before a justice
of the peace, and their statements there made were by Mr. Fernold writ-
'ten out, and were sworn to by them. These affidavits were returned to
Mr. Clough, who, after careful examination, concluded that the state-
ments in the affidavit were probably true. He, however, directed another
^attorney, the defendant Bullitt, to take the affidavits to the county attor-
ney for examination, with the further direction that, if the latter should
.also think that there was a probable case against this plaintiff, a prosecu-
4;ion should be instituted against him. The case was then fully presented
to the county attorney, who, after examination, stated to Mr. Bullitt that
^e thought it a complete and good prima facte case, and sanctioned the
<x)mmencenient of criminal proceedings. Mr.* Bullitt then made formal
•complaint before a justice of the peace charging this plaintiff with the
ilaroeny of a quantity of wire and staples. After the arrest of the plaintiff,
4Lnd before the examination, Mr. Bullitt declined to proceed with the prose-
4;ution, and the plaintiff was dischaVged. Mr. Bullitt feared that the re-
^0ult might be affected by some local prejudice. He immediately renewed
t^e prosecution before another justice, in the same county, before whom
An examination was held, and, after hearing, the accused was discharged.
One of the affidavits referred to was made by one Simeon Parks. This
«et forth, with considerable particularity, the circumstances of the larceny,
which was committed by Parks and this plaintiff. It further set forth a
-subsequent conversation between those two persons, in which the plaintiff
ia alleged to have said to Parks that there was going to be trouble about
ithe wire, and that the best thing they could do waa to "put it on" one
Virgin. Another affidavit was made by Mrs. Parks, the wife of Simeon.
Besides some other corroborating matter, Mrs. Parks avers that she over-
•faeard a conversation between Moore and her husband, in which the
former said that he (Parks) would "have trouble about this unless you
«wear it on to Virgin. . • . We can put it on to Virgin." Another
•of the affidavits was made by George W. Parks, a brother of Simeon, to
the effect that Moore came to him and talked about a charge that had
teen made against Simeon for stealing wire from this railroad company :
And proposed .to lay it upon Virgin, and suggested the payment of a sum
of money to him for doing sa Another affidavit was made by one Ruddy,
who averred that he met Moore and Simeon Parks near the depot one
^ght, between 9 and 10 -o'clock, with some spools of fence wire and some
PB0BA3LB OAUSB. 257
kegs in their wagon; the time of this occurrence being about the time
when, according to the affidavit of Parks, he and Moore committed the
larceny, taking the property from the vicinity of the depot in a wagon.
In reversing the judgment Dickinson, J., said: ** Without referring to
some other allegations made in the affidavits of a circumstantial nature,
what has been already referred to seems to us sufficient to show probable
cause for the prosecution." . . .
'* Aside from the showing of probable cause, the case of the railroad cor-
poration was greatly strengthened by the fact that the prosecution was
advised by its general counsel after a careful and prudent investigation of
the supposed facts, and more especially by the fact that the prosecuting
attorney of the county, whose advice was prudently sought, approved the
comtnencement of the criminal proceeding. We are of the opinion that
probable cause for the prosecution was shown and tl at the verdict cannot
stand." Moore v. Northern Pac. R Co., 87 Minn., 147; 38 N. W. Rep., 835
(1887).
(e) Probable dause — Suing out an attachment— A reasonable ground of
suspicion, supported by circumstances sufficiently strong in themselves to
warrant a cautious man in tlie belief that the person accused is guilty of
the offense charged, constitutes probable cause. When the plaintiff had
been, for several years prior to January, 1869, engaged in an extensive
mercantile business, and had received large shipments of goods during the
last part of December, 1868, and up to January 2, 1869, through the de-
fendants, as common carriers, on which he failed to pay the freight, and
had received, through the hands of the defendants, as common carriers,
packages containing very considerable sums of money, being the returns
from goods shipped by him to his customers, and had given checks to the
defendants for freight at several different times, all of which were dis-
honored at the bank on which they were drawn, for the reason that he had
no funds there to pay them; and, on the 2d or 8d day of January, when
the defendants demanded payment of their bills for freiglit, told them he
had no money, and that since the Ist day of January he had been doing
business as agent. — held, that these facts constitute probable cause for
swearing that the plaintiff had, within two years, fraudulently conveyed
or assigned his property and effects, so as to hinder and delay his creditors,
and to cause an attachment on that ground to be issued against his prop-
erty. Barrett v. Spaids, 70 111., 408 (1873).
(d) Circumataneea showing probable cause, — Edmond L. Cheever brought
an action against Joseph L. Sweet and others for malicious prosecution.
Plaintiff alleged that defendants maliciously, and without probable cause,
procured an indictment against him for breaking and entering a jewelry
store belonging to Healy Bros., defendants. The record showed an in-
dictment against plaintiff, and that he was tried and acquitted. The court
ordered a verdict for defendants on the evidence, and plaintiff excepted.
There was evidence that defendants' store had been robbed and burned,
and that plaintiff had formerly been a partner of defendants, but had left
them, and that he was well acquainted with the premises burned. Plaint-
iffs way of life was rather suspicious. He was present at tlie fire, and
was immediately suspected by other peraons than defendants. He told a
17
25 S PSOBABLE 0AU8B.
detective he had stolen property, and arranged with him about disposiDg
of it, and also proposed to the detective to break into other shops where
jewelry similar to that kept by defendants was made. Several bags of
jewelry like that which was in defendant's shop were foand in the bosbeSy
near a pond, and plaintiff was seen to go there under suspicious circum-
stances. Heldt that, in the absence of evidence sufficient to connect de-
fendants with the crime, the evidence showed probable cause for the prose-
cution against plaintiff by defendants. 2. The safe containing the jewelry
which was stolen from defendants' store was not broken open, but was
found locked immediately after the fire; but the evidence was not clear
that the combination was known only to defendants and their clerks, nor
whether it was easy or difficult to open the safe. The finding of the bags
of jewelry near the pond was kept secret, under the advice of the detective.
Held^ that these facts were not sufficient to show that defendants were
parties to the crime, and did not have an honest belief that plaintiff was
guilty. 8. A witness testified that one of the defendants, on the morning
after the fire, said, '* We* ve been robbed,'* and then said, "We have not
been robbed,*' and that defendant asked witness to conceal some dies worth
from $200 to $300 until after the insurance men had been there. Witness
also testified that this defendant told him, a few days afterwards, that
they had made $8,000 by the fire; that a detective had worked plaintiff,
and if there was money to put plaintiff in jail he would go there; that he
wished the detective had worked another person, aa he would have been
an easier man to have worked ; and that, just before the trial of the plaint-
iff on the indictment, this defendant twice offered witness $25 to go away
and not testify for plaintiff. Held, that the evidence as to this defendant
entitled plaintiff to go to the jury on the question of probable cause.
Cheever v. Sweet et al.. 151 Mass., 186; 24 N. E. Rep., 830 (1890).
(c) Want of probable cause appearing from circumstances,^ Mr. Pom-
eroy was an auctioneer and was conducting an auction of furniture at
a private house. Mrs. Villa voesa bid off some articles. Upon settlement for
them she disputed her bill, and, having previously made a deposit, she
grabbed at a pile of silver coin from which she took an amount, how much
Pomeroy could not tell, and he seized her to compel her to give it up. Her
husband came to her rescue, and both of them went away without sur-
rendering the money. Pomeroy then procured the arrest of the woman
for larceny. They were strangers to him. On the hearing the justice dis-
charged her. The woman then brought her action for malicious prosecu-
tion. There was a judgnient in her favor which was reversed on appeal.
Gary, J.: **0n these facts there was reasonable ground of suspicion,
supported by circumstances sufficiently strong in themselves to warrant a
cautious man in the belief that the conduct of the appellee and his wife,
both strangers to him, was that of thieves, availing themselves of an op^
portunity to plunder, and therefore there was probable cause, which is an
answer to this action." The judgment was reversed. Pomeroy v. Villa-
voBsa, 81 HI. App., 590 (1889), citing Ross v. Innis, 85 111., 487.
(2) What is not reasonable or probable cause.
(a) Cireumstances showing no reasonable cause, — Robert J. Roy sold to
Alfred Goings a farm and executed a bond for a title when payment should
FBOBABLB OAUSB. 259
be made, etc For a part of the oonsideration, he gave his note to Roy for
$278.47, payable on the Ist day of March, 1879. To secure the payment
of the note he and his son executed a chattel mortgage on one mule, three
horses, a two-horse wagon, and all the crops that should be grown on the
farm in the year 1878. The mortgage contained a clause authorizing the
mortgagors to retain the possession of the property until the maturity of
the debt. Also, a provision authorizing the mortgagee. Boy, to foreclose
at anytime he might feel that the debt was insecure. Goings entered into
possession of the farm, and planted a crop of corn and tobacco, and also
planted among the corn some pumpkins and beans. He, during the time,
resided with his family on another farm, about two miles distant. There
was no bam or building on the farm in which to secure the oom^ tobacco
and beans when matured, but he had a house on the place where he lived,
suitable for curing and preserving the tobacco. When matured he cut it,
and removed it to the place where he resided, for the purpose of curing
and preserving it. Soon after the execution of the mortgage, Goings sold
the mule named in the mortgage, to Roy, for $110, which sum was credited
on the mortgage* After the tobacco was cured, appellee returned it to the
farm on which it was raised, and stored it in a small cabin on the place.
Roy made several attempts to purchase the corn raised on the place, but
was unable to agree upon the price. When the beans were ripe, assisted
by his family, Goings gathered a load of them and hauled them to his house,
as he claimed, for threshing them. The next day he gathered another load
and hauled them home. Roy, having learned that Goings had hauled a
load on the previous day, posted in the moruing a notice on a tree in tHe
vicinity of the farm, that he had taken the crop raised under the mort-
gage and would offer it for sale. Having learned that Goings had gathered
another load of the beans on that day, Roy saw him at his home and in-
formed him that he had advertised the property for sale, and notified him
that he would put him in jail if he did not quit gathering the beans. Gfo-
ings insisted that Roy had no right to foreclose the mortgage, and that he
would continue to gather the beans as he had a right to do. Three days
afterwards, while Gk>ing8 and his children were in the field gathering the
beans, Roy ha<i him arrested on a charge of larceny and taken before a jus-
tice of the peace, who, after hearing the evidence, bound him over, in the
sum of $200, for his appearance at the next term of the circuit court of the
county. Being unable to procure bail he was committed to jail, where he
remained thirty-seven days, when, the grand jury failing to indict him, he
was discharged from imprisonment After his discharge he commenced a
suit for malicious prosecution against Roy, and on the trial the jury found
a verdict for $1,272 in his favor. A motion for a new trial was oveiTuled
and Roy appealed. In aflSrming the finding the supreme court held that
the evidence showed a want of probable cause. Roy v. Goings, 112 111., 6>6
(1885).i
1 Under a clause in a chattel mort- take possession of the mortgaged
gage providing that if the mortgagee property, etc., the mortgagee has
shall, at any time before the debt the right to judge of the crisis him-
becomes due, feel himself unsafe or self, subject only to the limitation
insecure, he shall have a right to that his judgment of insecurity
260 PROBABLE GAUSS.
(&) Ahuae ofproceM -^Want of probable eause,-^ In the winter of 1887-8
R068 purchased or traded for a pair of horses from one Forster, the horses
being valued at $260. In payment of said horses he delivered to Forater
a yoke of oxen valued at $120, and, to secure the remainder, executed a
chattel mortgage upon the horses, due in October, 1878. Before this mort-
gage became due he purchased a wagon of an implement firm in Central
City for the sum of $86, due in one year; and, to secure the payment of
the same, executed a chattel mortgage upon the horses and wagoiu Just
before the time that Forster's mortgage became due, he applied to Lang-
worthy for a loan of $100, to pay the Forster mortgage.
After various conversations with him in regard to the matter, he pro-
cured a loan of $100 for sixty days, with which he immediately satisfied
the Forster mortgage, and to secure the payment of the loan from Lang-
worthy, he executed a chattel mortgage upon the horses above referred to.
A suggestive circumstance in connection with this mortgage is the fact
that the words *' the above-described chattels are now in my possession,
are owned by me, and free from all incumbrances in all respects,** were
stricken out. Those words were on one line in the printed form of the
mortgage, and a pen had been run across them to eraise them. The mort-
gage was not paid when it became due, and the time was extended thirty
days, Ross paying $3 interest.
Ross made every efifort possible to a man of limited means to pay the
debt, and wrote to Lang worthy as follows:
** Mb. Lanqwobtht : I have been trying for the past two weeks to get
the money for you and got disappointed all round. I cau't get it no place.
I have done all that I could do, and can*t do any more. Veerig & Wilder,
at Central City, have closed in on me now, but would not have done it if
you had waited on me. They said that if you was a going to take the
team from me they would come it first. Now, if we can compromise and
you give me a chance, I will pay you as quick as I can. I would have
come down to-day and seen you about it myself. I am going to the mill
to-morrow and could not get back in time to go, if I went to town. Let
me know the best you can do with me. I can make the first mortgage all
right, if you would give me a chance, and keep my team ; and if you don't
give me a chance, I can*t ; that is all there is about it. I have been run-
ning around so much that I am sick and discouraged.
<* Answer, and let me know.
[Signed] "J. ELROSB."
And in reply received the following:
Yobk County Bank (Edward Bates, Attorney),
'* Yobe, Nebbaska, February 4, 1879.
J, K* i^OM— Deab Sm: You can make my note ail right by paying me
the money, or giving me extra security that is clear for the amount, and
if you don*t make the matter good I shall have to deal according to law
with you, and under the circumstances on which you obtained the money,
must be exercised in good faith upon Roy had no reasonable grounds or
reasonable grounds or probable probable cause to feel insecure. Roy
cause. Held in the case at bar that v. Qoings, 96 IlL, 861 (1880).
««
<i
PROBABLE OAUSB. 261
it will place you in a bad place. I will give you until February 8th to
make the matter good, and I want you for your own interest to attend
to it. Yours,
[Signed] **C. Langworthy."
On the 10th day of February, 1879, Lang worthy caused Ross' arrest and
imprisonment upon the ground '* that the crime of obtaining money under
false pretenses has been committed in the county of Tork, and that J. K.
Boss committed the same." He was imprisoned twenty-six days. The
alleged false pretenses consisted in the representation that the property was
free from incumbrances; that is, that he represented to Langworthy, at
the time he borrowed the money, that the property was free from incum-
brances, as an inducement to loan the money upon the security. This
Ross denied, and further stated that he informed Langworthy of the mort-
gage, and Langworthy then asked him what the horses were worth, and
he informed him $250, and Langworthy said that was sufficient.
On the trial of an action for malicious prosecution, brought by Ross
against Langworthy, a verdict was returned for the defendant, upon which-
judgment was rendered. Ross then took the matter to the supreme court
on error. The principal error relied upon is that the verdict is not sus-
tained by the evidence.
In delivering the opinion of the court, Maxwell, J., said : ** We think it
it is pretty clear from all the testimony that the plaintiff did not conceal
the execution of the chattel mortgage for the wagon. It is very clear, too,
from the testimony of the defendant himself, that this imprisonment was
a mere means of collecting a debt. On cross-examination he testified as
follows : ' Question. What started you up to swear out a warrant just at
that time? Answer. A man would be naturally started ; because I saw the
property was going, and I had to protect myself. Q. Where was the prop-
erty going? A. Going to be sold under this mortgage. Q. And this is
what started you up to make this first complaint? A. Yes, sir. Q. That
is all that started you to make this first complaint? A. Yes, sir. Q. You
had no other reason nor motive but that? A. No, sir.'
'* 'Probable cause' is defined as a reasonable ground or suspicion, sup-
ported by circumstances sufficiently strong in th^^mselves to warrant a cau-
tious man in believing that the accused was guilty. Boyd v. Cross, 85 Md.,
197; Cooper ▼. Utterback, 37 Md., 282. The question of probable cause is
one of law and fact, composing two distinct inquiries: the one for the jury
to say what facts are proved, and it is for the court to say whether those
facts constitute probable cause. Turner v. O'Brien, 5 Neb., 547-8; Johns
V. Marsh, 9 Reporter, 148 ; Boyd v. Cross, 85 Md. , 194 Probable cause does
not depend upon mere belief, however sincerely entertained; because, if
that were so, any citizen would be liable to arrest and imprisonment, with-
out redress, whenever any person prompted by malice saw fit to swear that
he believed the accused was guilty of the offense charged. The law, there-
fore, has imposed an additional ground, viz., such knowledge of facts as
wpuld induce a reasonable man to believe that the accused was guilty.
Nothing short of this will justify the institution of a criminal charge
against another. Cooley, Torts, 182. Tlie defendant's own testimony
shows Tery clearly that the object he had in causing the plaintiff's impris-
262 PBOBABLE 0AU8B.
ooment was to aid him in collecting his debt, and not to Tindicate public
justice. The rule of law is that a prosecution instituted for any other pur-
pose than that of bringing the party to justice shows a malicious motive.
Johns T. Marsh, 9 Reporter, 148; Mitchell v. Jenkins, 5 Bam. & Adol., 604.
The reason is, the prosecution was not instituted to vindicate tlie law and
punish crime, but as a means of coercing the accused to comply with the
wishes of the prosecutor." Judgment reversed. Boss v. Langworthy, 18
Neb., 492; 14 N. W. Rep., 615 (1882).
(c) Maliciously, etc, swearing out a peace warrant — Abuse of process —
No probable cause, — Mounts, Kimmel and Henry lived in the same neigh-
borhood. Henry's wife was Mounts' sister, and he and Mounts were both
in the employ of Kimmel, who owned a mill. They got into trouble, it
seems, about Kimmel's undue familiarity with Henry's wife. Matters be-
came so uncomfortable for Henry that he determined to take his family to
Pennsylvania. He took his wife and three little girls to a friend's house.
While they were there, Kimmel's wagon, driven by his son, in which was
Mounts and three other men, came to the house in the night, took the
children out of bed and carried them and their mother to KimmeVs house,
where they remained several days, during which time Henry was forbid-
den by Kimmel to see them. To secure themselves from interruption by
Henry, Mounts, on the same day previous to taking Henry's wife and
children to Kimmel, had appeared before a justice of the peace and made
oath that he was afraid Henry would beat and wound him ; that he had,
two weeks before, assaulted and threatened to strike him, and that he was
a man whom he had reason to fear. A warrant was issued and Henry was
arrested, and after some delay was examined and discharged. Henry
then brought an. action for malicious prosecution against Mounts and Kim-
mel. Mounts' defense for causing the arrest was that he had reasonable
cause. Kimmel insisted he had nothing to do with it. But the jury
thought differently and returned a verdict against them for 9250. They
appealed. On the question of probable cause for instituting the proceedings,
it appeared that Mounts, wishing to prepare himself for church, went to
Henry's house to procure some hair oil. Henry was angry and he left
Henry followed him out and asked him if he intended to make trouble in
his family, and he said no. It also appeared that Mounts had said that he
was not afraid of Henry, but if he was arrested he would have a better
chance to get his sister away, and that his whole object was to get the woman,
as her husband was abusing her. On being asked by the magistrate if
Henry could give bail, and who stated if he could not he would have to go
to jail. Mounts said that was just what he wanted. The evidence showed
that Kimmel was suflSciently connected with the matter to sustain the
verdict as to him.
In affirming the judgment. Justice Breese said: ''Appellants may be
thankful the jury did not visit them with a more severe affliction. There
was no cause for the prosecution. It was not made in good faith." £[im-
mel et al. v. Henry, 64 III., 505 (1873).
(d) Facts not amounting to probable cause, — In an action for malicious
prosecution it appeared that defendant intrusted rugs to plaintiff to be sold,
leased or returned on demand. A dispute having arisen as to their acoountt
PROBABLB OAI78B. 263
it was agreed that defendant should receive in full settlement a certain sum
money and thirteen rugs. Before the last instalment of the money was
paid, defendant swore out a warrant for plaintiff's arrest for larceny of a
rug; but it was not served until after he had tendered thirteen rugs, which
were refused on the ground that they were not of the quality required by
the settlement, as to which the parties differed.
Parker, J. : The only question requiring consideration is presented by an
exception to the charge. The court instructed the jury that the plaintiff
did not commit an offense, and defendant did not have probable cause to
believe that he had, and submitted to their consideration the question of
malice only. The defendant excepted. Where facts are undisputed, and
but one inference can be drawn from them, the question of probable cause
is one of law for the court. Now, can it be said that these facts permit an
inference that the defendant had probable cause to believe that the plaint-
iff was guilty of larceny? By the original agreement plaintiff had the
right to take the rugs, sell them, lease them, or keep them in his possession
until after demand made for their return by the defendant. Not until
^ter demand ^d refusal could the plaintiff be in the wrong. But the
right to make such demand, as to this rug, was waived by the defendant
when he made the agreement of settlement to which we have referred.
Thereafter the plaintiff had the right to the possession of the rug. The
fact that his counsel may have advised him otherwise, while proper upon
the question of malice, does not form the basis for a finding of fact that he
had probable cause to believe the plaintiff guilty of larceny. Probable cause
may be founded on misinformation as to the facts but not as to the law.
The facts within his knowledge did not indicate that a crime had been
committed. They did not tend to cause a man with knowledge of the law
to suspect or believe that it had been violated, and the defendant was
bound to know the law. The court, therefore, rightly instructed the jury,
as a matter of law, that the defendant, in causing the arrest of the plaint-
iff, did so without probable cause to believe that an offense had been com-
mitted by the plaintiff. Hazzard v. Fiury, 120 N. Y., 223 ; 24 N. E. Rep.,
104 (1890).
(e) Want of probable cause and abtute of process, — Morris Rosen brought
an action against Nathan Stein, Leopold Bloch, Louis Stein and Abraham
N. Stein for false imprisonment. The plaintiff, Rosen, was a journeyman
tailor, and as such was given by the defendants' firm the material and
trimming to make a dozen coats, for which he was to be paid a stipulated
sum per coat. The work was done outside the defendants' establishment.
When the coats were completed it was discovered that there was some-
thing wrong with the linings of some or all of them. The defendants
claimed that the trouble was caused by the mistake of Rosen in mixing
two different shades together, and insisted that he should take out the
defective lining», and replace them with others, for which he was given
the stuff. Rosen, it api>eared, afterwards returned to the defendants' store,
and claimed that upon again testing the lining, and pressing it, the same
discoloration was caused, and that the trouble was enirely the result of the
quality of the lining, and not any fault of his making. The plaintiff claims
26il PROBABLE OAUSB.
that the defendant Lonis Stein still insisted that he should fix the coats,
and stated that, unless he did remedy the defects, he would not get paid
for his work. This he refused to do, and was directed to return three of
the coats, which he had not already brought to the defendants' establish-
ment. He refused to do so unless he got his pay. The defendants then
sent their messenger to the plaintiff's house for the coats, and he again re-
fused to give up the coats without his pay. Then they sent the messenger
with a police officer, and demanded the coats, but Rosen refused to let
them have them, or take them to the defendants' place, without being
paid for his work ; all the while insisting on the right to retain the prop-
erty until he was paid. There was no evidence showing any purpose on
the part of Rosen other than to assert his supposed legal rigbi to keep the
coats until his services had been fully paid. The evidence also shows that
the defendant Louis Stein was fully advised of the plaintiff's claim. After
the fruitless effort of the officer to get possession, the defendant Louis
Stein went before the police justice, where he claimed lie stated the facts
to the justice, and was advised by him that the only thing to do was to
get a warrant. The justice wrote the affidavit which charged the plaint-
iff with petit larceny. Stein signed and swore to it, as he claimed, with-
out reading it, and a warrant for the arrest of Rosen was issued. Upon
the warrant he was arrested, taken through the streets to the station, de-
tained there for a couple of houra, then paroled, and upon an adjourned
day discharged. On the trial he recovered $1,000. The defendants ap-
pealed.
In affirming the judgment, Barker, P. J., said: "It is claimed by the
defendants* counsel that the evidence in the case showed that the defend-
ants proceeded in good faith, that there was no evidence in the case from
which malice could be inferred, and that Stein, who procured the warrant,
was acting on the advice of the justice who issued it, and not on his own
judgment. The justice who issued the warrant was called as a witness on
the trial, but was unable to recall the particular circumstances attending
the issuing of the warrant. It does appear, however, from the testimony
of Louis Slein, that he signed and swore to the affidavit, charging the
plaintiff with petit larceny, without reading the paper; and he stated at
the time of the hearing before the police justice, when the plaintiff was
discharged, that he was satisfied, and that all he wanted was to get back
the coats, which he had obtained. That there was no probable cause for
the arrest of the plaintiff the evidence clearly establishes. It is quite pos-
sible that the defendant Stein did not fully realize or reflect on the char-
acter of the criminal charge he made against the plaintiff; but he knew
that, by putting the machinery of the criminal law in motion, he was sub-
jecting the plaintiff to arrest, public indignity, and humiliation; and cer-
tainly a jury was justified in finding that he who would resort to the crim-
inal law to enforce a civil right was actuated by malice. The question of
malice, under the circumstances, was for the jury to pass upon, and was
properly submitted to them by the court ; and this court cannot say, as a
matter of law, that the evidence does not sustain this finding." Judgment
affirmed. Rosen v. Stein, 61 Hun, 179; 5N. Y. Sup., 369 (18i39).
PBOBABLB 0AT7SB, 265
•
§ 3. Malice and want of probable can^e must concur.—
/'The want of probable cause is essential to every suit for a
malicious prosecution. Both that and malice must concur.
Malice, it is admitted, may be inferred by the jury from a
want of probable cause, but the want of probable cause can-
not be inferred from any de^ee of express malice, V/^
Thr law illustrated. —
(1) Concurrence of malio^ and want of probable cause,
Ferguson charged Foshay with stealing his cattle, and for which he was
indicted, tried and acquitted. He then brought an action against Ferguson
for malicious prosecution. On the trial it appeared that the plaintiff, a
drover, who was driving cattle to market, had, on passing the defendant's
farm, received into his drove two of the defendant's cattle, and had pro-
ceeded on his journey with them seventy miles, when he was overtaken
by the defendant, who charged him with the theft. The plaintiff paid him
a large sum of money to settle the affair. The defendant returned home,
and some litigation resulting- between the parties growing out of the mat-
ter, he went before the grand jury and procured an indictment, upon
which the drover was tried and acquitted. The jury found for the plaint-
iff and assessed his damages at |250. The defendant moved for a new
trial on tlie evidence.
In the supreme court, Bronson, C. J., said : ** There was evidence enough
In this case to warrant the jury in finding that the defendant set the prose-
cution in motion from a bad motive ; but all the books agree that proof of
express malice is not enough without showing also the want of probable
cause. However innocent the plaintiff may have been of the crime laid to
his charge, it is enough for the defendant to show that he had reasonable
grounds for believing him guilty at the time the charge was made." New
trial granted. Foshay v. Ferguson, 2 Den. (N. Y.), 617 (1846). Citing Swain
V. Stafford, 3 Ired. (N, C), 289; Delegal v. Highly, 8 Bing. N. C, 950.
Criticised, 48 Barb. (N. Y.), 83. Cited in 49 Ind., 157; 19 Am. Rep., 678;
77 111., 40, 42; 98 U. S., 301; 97 U. S., 645; 24 How. (U. 8.), 550; 62
N. Y.. 22.
(2) Malice and probable cause — Sufficiency of facte to justify an arrest
Action by Joseph Dearniond against Joseph St. Amant for $3,500 dam-
ages, claimed for defamation of character and malicious prosecution. From
a judgment condemning him to pay $500 defendant appeals.
Fenner, J. : This is an action for defamation of character and malicious
prosecution. The defamation of character alleged consists in merely mak*
ing public statements that plaintiff was guilty of the crime for which he
1 Stewart v. Sonneborn, 98 U. S., Long, 1 Wend. (N. Y.), 140 (1828);
187 (1878); Sutton v. Johnstone, 1 Wood v. Weir, 5 B. Mon. (Ky.), 544
T. R, 493; Foshay v. Ferguson, 2 (1845).
Den. (N. Y.). 617 (1846) ; Murray v.
266 PBOBABLE CAUSE.
•
was arrested and prosecuted upon the affidavit of defendant Manifestly
the slander is merged in the prosecution, and, if the prosecution is not ac-
tionable, neither is the slander. The record shows that an attempt was
made in the night-time to burn down defendant's store. It was a palpable
attempt at deliberate arson, only thwarted by a fortunate discovery, and
alarm in time to extinguish the flames. Arson is one of tlie most danger-
ous and cowardly of all crimes, and none is calculated to impress its victim
with a deeper sense of alarm and insecurity. It was natural that defend-
ant should have been anxious to discover and punish the perpetrator of
such a crime. He employed a professional detective in New Orleans, and
brought him to the parish, to aid him in ferreting out the criminaL Evi-
dence was obtained pointing to one Joseph Guedry as the guilty person,
and he was arrested, and confined in the parish jail. While so confined
he made to the eheritf a most circumstantial confession, to the effect, sub-
stantially, that he had been engaged by plaintiff to burn the store; that
they had gone together and set fire to it; that Dearmond had told bira'that
a mercantile rival of St. Amant had promised to give $1,500 for the burn-
ing of defendant's store; that plaintiff had gone early next day to the
rival's store to claim the reward, but that the merchant had refused to pay
because the attempt had not succeeded. This confession, repeated several
times, was communicated by the sheriff to defendant, and also to the dis-
trict attorney, and, after consultation between the three, it was determined
that plaintiff should be arrested. The district attorney prepared an un-
qualified affidavit chaiging plaintiff with the crime, but defendant declined
to make it in that form, saying that he could only swear from information
received, and not from his own knowledge; whereupon the affidavit was
so changed, and defendant made oath to it before the judge, who issued his
waiTant for the arrest of plaintiff. Unwilling, however, to have the an*est
made without further inquiry, the defendant asked time to make such, and
it was determined that the warrant might be held, subject to his discretion,
after further investigation. Defendant thereupon engaged another de-
tective from New Orleans to assist him in further investigations. After
several days thus employed, resulting in the discovery of various circum-
stances tending to confirm the confession of Guedry, the arrest was made
by defendant and the detective to whom the sheriff had given the warrant;
and plaintiff was incarcerated. It turned out that Guedry's confession had
been obtained by the sheriff under threats of the certainty of his convic-
tion, and under promises that, if he would tell all, he would be set free.
Of course such confession was inadmissible as evidence for any purpose;
and upon the preliminary examination before the judge, Guedry was dis-
charged. On the following day the district attorney entered a noUe pro-
sequi as to the case of plaintiff, and he was discharged after a confinement
of about a week. Neither the defendant nor district attorney was informed
of the threats and promises by which the confession of Guedry was ob-
tained. The sheriff admits that, after getting the confession^ he suggested
to defendant to make an affidavit against plaintiff. The district attorney
states that, having no reason to doubt its truth, he *' considered that con-
fession alone sufficient for him to advise the affidavit and warrant." If
plaintiff is innocent of this heinous charge, as the law presumes him to be,
PSOBABLB OAUSB. 267
he has undoubtedly suffered a great wrong; and for him to be compelled
to bear it without redress is indeed a hardship, but it is one of those sacri-
fices which the individual is required to make to the intereste of society.
It is not only the lawful right, but the civil duty, of every citizen to set on
foot criminal proceedings whenever he believes honestly and on reasonable
grounds that a crime has been committed. The social interests require,
and the law invites, him thus to aid the state in the discovery and punish-
ment of crime; and it would be equally unjust and impolitic to make him
a guarantor of the success of the prosecution, or to make its failure an ac-
tionable wrong. Hence the law wisely holds the prosecutor harmless in
such a case, notwithstanding the acquittal of the person accused, unless
his conduct has been tainted by two concurrent vices: (1) Malicious motive ;
(2) want of probable cause, i. 6., absence of reasonable grounds for believ-
ing in the truth of the charge made. From the huge volume of testimony
in this case, we have selecred and detailed a few of the pertinent and in-
disputable facts, the effect of which is not, in our judgment, destroyed by
any otiier of the bumerous facts and circumstances proved. It would serve
no useful purpose to discuss the latter. Suffice it to say that the record
fully satisfies us that the defendant acted throughout in good faith, from
honest motives, on probable and reasonable grounds, and without malice,
express or implied.
It is therefore ordered, adjudged and decreed that the verdict and judg-
ment appealed from be annulled and set aside, and that there be now
judgment iu favor of defendant, rejecting the demand of plaintiff at the
latter's cost in both courts. Dearmond v. St. Amant, 40 La. Ann., 874; 4
So. Rep., 78 (1888).
§ 4. Reasonable and probable canse an element of the
plaintilTs case — Honest and reasonable belief. — In actions
for malicious prosecution the real controversy is generally upon
the question of probable cause, the want of which is a vital
and indispensable element in the plaintiff's case, and as to
which the burden of proof is upon him. Whether there was
want of such cause is a question of law upon the facts proved.^
It is to be judged of, not upon the actpal state of the case,
but upon the honest and reasonable belief of the party that
instituted the proceeding complained of.'
1 Good V. French, 116 Mass., 208 ward v. Mills fWis.), 20 N. W. Rep.,
(1874): Kidder v.Parkhurst, 8 Allen, 728; Walker v. Camp (Iowa), 19
893 (1862). N. W. Rep., 802; Murphy v. Martin
«Good V. French, 115 Mass., 208 (Wis.), 16 N. W. Rep., 608; Ross v.
(1874); Bacon v. Towne, 4 Cush.. 217 Langworthy (Neb.), 14 N. W. Rep.,
(1849). Probable cause depends upon 515; Smith v. Austin (Mich.), 18
the prosecutor's sincere belief, based N. W. Rep., 698. The defendant
upon facts which would justify such may be asked whether he made the
belief in a reasonable man. Wood- complaint in good faith, believing
268 PROBABLE OAUSB.
§ 5. The right to jndge from appearances as to the exist-
ence of reasonable or probable cause. — A party about to
comtnence legal proceedings, either civil or criminal, has the
right, as affecting the existence of reasonable or probable
cause, to judge for himself from appearances; and if from such
appearances, though they may have been deceiving, there was
a reasonable ground of suspicion supported by circumstances,
apparent or real, sufficiently strong in themselves to warrant
a cautious man, acting in good faith, in the belief of the ex-
istence of reasonable or probable cause, and to create in his
mind a reasonable ground of suspicion, it is sufficient in law
even if there was in fact no reasonable cause for his action.^
Applications of the law. —
(1) ^ person may judge from appearances as to probable canse — Honest
and reasonable belief, etc
Good had bought a lot of flour, in the name of Cutler, of the firm of
vrliich George W. French was a member. He had no authority to use
Cutler's name and the flour was not paid for. French made a complaint
and caused Good to be arrested for obtaining the flour by false pretenses.
After his release he brought an action for malicious prosecution against
French. On the trial the plaintiff, against the objection of the defendant,
testified to facts tending to show that he was in good ci'edit, and had funds
in the hands of a third person sufficient to pay for the fiour, and that there
was a practice among fiour dealers to buy fiour in the name of other per-
sons, and that the reason of tliis practice was to conceal the names of the
actual purchasers, and oover up any speculation in which the actual pur-
chaser might be engaged. On his cross-examination he admitted that he
used the name of Cutler in the purchase of the fiour because he feared that
his credit would be called in question if he attempted to buy in his own
name ; and that he did not want the defendant to understand that credit
for the fiour was to be given to him. When the testimony was all in the
defendant asked the court to order a verdict for him. The request was
refused and the jury found for the plaintiff. Exceptions were taken to
the admission of the testimony and refusal to order a verdict for the de-
fendant.
Ames, J., said: ''I'he plaintiff represented himself, in making the pur-
chase, as the agent of Cutler, which was not true. He made this false
representation for the sake of concealing the fact that he was the real pur-
chaser. He did not intend to have the fiour charged to himself, for fear
his credit might be called in question, and he obtained possession of the
th^ plaintiff to be guilty. White v. ^Good v. French, 116 Mass., 208
Beck (Iowa), 19 N. W. Rep., 872; (1874) ; Pomeroy v. Villavossa, 81 HI*
Sherburne v. Rodman (Wis.), 8 N. W. App. , 590 (1889).
Rep., 414.
VfiOBABLB 0AU8X. S69
property by means of that false representation. • • • The defendant
had a right to judge from appearances, and the evidence wholly fails to
do away with the efifect of these appearances. Neither the existence of the
alleged practice, nor the fact that the plaintiff had funds with which he
could have paid for the flour, has any tendency to show that the defend-
ant instituted the prosecution without probable cause. . . . The evi-
dence relied upon by the plaintiff, whatever its effect may be to explain
his conduct, and to acquit him of any fraudulent intent, has no tendency
to show that the defendant was not acting under an honest and reasonable
belief and with appai'ent or probable cause. This defect in the plaintiff's
case 18 insuperable.*' Exceptions sustained. Qood v. French, 115 Mass.,
203 (1874).
(2) A man^s conduct may justify a suspicion.
It is not sufficient on the part of the plaintiff to show that he was ac-
quitted of the charge ; he must prove that there were no reasonable grounds
for it. It is not every verdict of not guilty, nor every subsequent proof
of complete innocence, that shows a want of probable cause in the incipient
stages of a prosecution. A man's conduct may, from his folly, his neglect,'
or his ignorance, be such as to justify a suspicion of guilt and produce a
prosecution in the course of which it may be made to appear that he is
clearly innocent ; but that will not authorize an action for malicious prose-
cution. Qrant v. Denel, 8 Bob. (La.), 17; 88 Am. Dec., 23&
§ 6. Good faith on the part of the prosecator a defense. .
Our experienoe teaches us there are few questions of law more |
difficult of -apprehension by a jury than those which govern
trials for malicious prosecution. It seems difficult for them
to appreciate, if the plaintiff was really innocent of the charge
for which he was prosecuted, that he still ought not to re-
cover. ThjBy do not readily comprehend why an innocent
man may be prosecuted for a supposed crime or offense, and
yet have no recourse against the prosecutor who caused his
arrest and imprisonment; and yet the preservation of the
peace and the good order of society requires that every inno-
cent man may be compelled to submit to great inconveniences
and hardships, rather than that citizens should be deterred from
instituting prosecutions where there is reasonable or probable
grounds to believe in the existence of guilt. Good faith on the
part of the prosecution is always an important, if not a vital,
element of inquiry, and is always a sufficient justification, ex-
cept where an unreasonable credulity is manifested, inducing
the prosecutor to draw conclusions of guilt, when it would have
been wanting in the perception of a person of ordinary pru-
dence and judgment.^
1 Collins et al. v. Hayte, 60 111., 858 (1869),
270 fbobablb gauss.
Applications of. thb law. —
(1) Municipal officers prosecuting aaloon'keeper under void charter — Ad'
vice of counsel — Probable cause.
QilbertBon sued Fuller and others for maliciously prosecuting him for
keeping a saloon contrary to an ordinance of the Tillage of Bothsay. One
of the defendants was a justice of the peace for Wilkin county ; another,
a constable in said county, as well as a member of the village council of
Rothsay, a village which had organized and acted, in common with many
others, under the provisions of chapter 78, General Laws, 1880 — the chap-
ter declared unconstitutional by this court in State v. Simons, 32 Minn.,
640; 21 N. W. Rep., 750. The other defendants were also members of the
village council. Upon being informed of the decision referred to, the
members of the council were at a loss to determine what course to pursue
should certain saloon-keepers decline to take out a license in conformity
with the terms of an ordinance which prohibited the sale of intoxicating
liquors within the village limits without such license. They resolved to
seek the advice of the attorney-general of the state, and, according to the
testimony, upon more than one occasion consulted him in reference to the
legal status at the village, and as to the powers and privileges of its officers
should the saloon-keepers refuse or neglect to obey the ordinance. The
testimony is uncontradicted that, upon a full and fair presentation of the
facts to the then attorney-general, the village council was advised that it
had a right to proceed against such persons as disregarded the ordinance,
precisely as if the decision (which was in reference to another municipality)
had not been rendered. This advice was discussed and made public at a
meeting of the council held just prior to the termination of the license
year, and seems to have been predicated upon the fact that the incorpora-
tion of the village of Bothsay had not been passed upon, and also on a sup-
position that the legislature, then in session, would immediately pass a bill
validating the incorporation of all villages organized and acting under the
obnoxious law. After the plaintiff opened his place of business, without
having obtained a village license, the circumstances of his case were pre-
sented to the attorney-general, and the council was by him advised to
prosecute. A prosecution having resulted disastrously to the municipality,
Gilbertson brought an action for a malicious prosecuA'on. He recovered,
and the defendants appealed.
In delivering the opinion of the supreme court, Ck>llins, J., said: *' There
is no claim that this advice was not given, as stated upon the trial, nor is
there a pretense that any of these defendants did not act in perfect good
faith throughout the entire transaction, relying upon the assurance of the
chief law officer of the state, to whom they had, at the outset, stated all of
the facts and circumstances, and with whom they subsequently counseled
with reference to the prosecution of this plaintifif. It was upon his express
advice that the steps were taken upon which is based this action. A
charge of malicious prosecution is well met by proof that the proceedings
were instituted in reliance, in good faith, upon the advice of competent
legal counsel, received upon a full statement to him of the facts known to
the prosecutor, or which he had reason to suppose existed ; and this rule
PBOBABLE CAUSE. 27l
applies with still greater force when the proceeding is instituted upon the
advice and approval of the prosecuting officer. Moore . ▼. Railway Co., 87
Minn., 147; 88 N. W. Rep., 884. And the rule is especially pertinent and
relevant when the prosecutipn is commenced upon the suggestion, and
with the indorsement, of the attorney-general of the state.
'* There being no controversy over the facts, it was for the court to de-
clare whether probable cause existed ; that is, whether the defendants had
' a reasonable ground of suspicion, supported by circumstances sufficiently
strong in themselves to warrant a cautious man in the belief that the per*
son accused is guilty of the offense with which he is charged.' Cole v.
Curtis, 16 Minn., ISi (Gil., 161); Casey ▼. Sevatson, 80 Minn.. 616; 16 N. W.
Rep., 407; Burton v. Railway Co., 83 Minn.. 189; 22 N. W. Rep., 800. The
defendants, in a case where there was no doubt of the guilt of the accused,
if the ordinance was enforceable, took the precaution to submit that ques-
tion to the attorney-general for his opinion, and thereafter acted in strict
accordance with his views, under his instructions, and in good faith. There
was no want of probable cause, and the court erred in so holding. Order
reversed.** Gllbertson v. Fuller et al., 40 Minn., 413; 42 N. W. Rep., 808
(1889).
(2) Arrest for theft -^ Settlement and discharge — Malicioua proeecution
not sustained — Want of probable cause the gist of the action,
McCormick brought an action for malicious prosecution against Sisson.
At the trial it appeared that the defendant obtained a warrant from a
justice against the plaintiff on a charge of theft, and when he was brought
before the justice he (the justice) examined some witnesses, and before he
had finished the examination the parties declared they had settled all
matters of difficulty between them ; and, on this account, he proceeded no
further. The defendant moved for a nonsuit, on the ground that the
plaintiff had not shown that he was acquitted and discharged by the jus-
tice, and the motion was overruled. Evidence was given by the plaintiff
tending to show that Sisson prosecuted before the justice with a view to
coerce a settlement and surrender of the property alleged to be stolen : and
the justice decided that other evidence given on the part of the plaintiff to
show malice in the defendant, both want of probable cause and malice,
might be implied. He submitted to the jury, upon the evidence, whether
there was probable cause. Verdict for the plaintiff, with $75 damages.
In the supreme court Woodward, J., said : *' I think the objection taken,
that there was no acquittal, is fatal. The justice did not decide whether
there were grounds for the complaint or not. It is essential that the plaint.
iff prove he has been acquitted. The damage must be in consequence of
the acquittal. The action cannot be submitted unless the proceedings are
at an end by reason of an acquittal. In this case the proceedings ended
in consequence of a settlement. The justice heard a part of the testimony
only, and formed no opinion on the subject. The judge also decided that
the defendant must show probable cause. It appears the law is otherwise.
Th^ want of probable cause is the gist of the action, and, if so, the plaint-
iff must show it to maintain his action. The judge also erred in submit-
ting to the jury the question whether there was probable cause. Whether
272 PBOBABLB CAU8B.
the circumstaDces alleged are true is a matter of fact ; if true, whether
they amounted to probable cause is a question of law. The verdict must
be set aside and a new trial granted, with costs to abide the event." McCor-
mick ▼. Sisson, 7 Ck)w., 715 (1827). Citing 2 T. R., 281; Doug., 216; %
John?., 215; 10 Johns., 106; 1 Campb., 199; 1 T. R, 645; Bull. N. P., 14.
Cited in 29 Cal, 650; 48 Barb., 86; 80 N. Y., 627; 41 Barb., 806; 6 HiU,
847; 14 Wend., 194; 9 L. C. P. Co., 276.
(8) A want of probable cause.
Cawrey rented a house of Chapman for a month and paid the rent.
After the expiration of the term, Cawrey was temporarily absent, having
his furniture in the house. Upon his return he found it fastened up,
whereupon he forced open the door and entered. Then Chapman ordered
him to leave the premises, but he refused and told Chapman not to enter,
threatening violence to him if he did so. Chapman made an affidavit to
the effect that Cawrey did break into his store-house and threaten to kill
him if he interfered with him. Upon this affidavit a warrant was issued
the same night by a justice of the peace, which Chapman gave to an officer
about midnight and ordered Cawrey arrested, after he had gone to bed, and
without allowing him any opportunity to procure bail, and had him taken
to jail and there imprisoned until Monday morning, when, upon ezamina*
tion, he was discharged. Cawrey brought an action for malicious prosecu-
tion and recovered $1,000.
On an appeal to the supreme court, in discussing the question of the exist-
ence of probable cause, Brcese, C. J., said : In examining the testimony on
this point, no reasonable ground of suspicion, supported by any circum-
stances, existed at the time of this transaction, or linked with it, to warrant
a cautious and prudent man to believe that appellee was guilty of any crim-
inal offense in entering the premises in the manner he did. They had been
rented to him at a stipulated rent, which he had paid, and if he was holding
over after the expiration of his term, that did not warrant appellant in the
course he took to regain possession of them. The lessee had left them for a
temporary purpose merely, leaving all he had in them, including the bed in
which he slept ; and when he returned at night, finding the entrance cIoaed«
he had a right to force the obstruction and enter. Such an entry could
hardly be deemed burglarious, nor indeed did appellant, in his complaint
to the magistrate, char(2;e, in terms, the breaking to be felonious. The
most that can be inferred from the complaint was a breach of the peaoe^
accompanied by a threat of homicide. But this threat to kill was con-
ditional if appellant interfered with him, and that was made after appellee
had got into possession of the house. Such a threat is no ground for a
criminal prosecution ; on the contrary, it might prevent a violation of law
by the party threatened. If a person in the exercise of a right is approached
by another in a menacing manner, and is told if he does the act his men-
aces indicated he would kill him, such a declaration, instead of a threat to
kill, should be rather regarded as a warning to the other party not to do
violence. Chapman v, Cawrey, 50 Ul., 612 (lb69)»
PROBABLE 0AU8E. 278
(4) Probable cause — Suing out and levying a distress warranU
.A tenant abandoned premises ofliis own accord, and drew a check for a
Tew dollars more than was due for a month's rent, and sent it to the agent
of the landlord, with a view of terminating the lease by having it received
as the amount due to date after the month's rent was due, and thus estop
the landlord from claiming rent for the balance of the term, but the agent
refused to accept it and offered to return it, and never presented it for pay-
ment. It was held that these facts showed probable cause for distraining
for the month's rent which was due, and that there was not grounds for
maintaining an action for maliciously, and without probable cause, suing
out and levying a distress warrant for rent due. Hammond et aL v. Will,
^ 111., 404 (1871).
§ 7. Character of the plaintiff an element in the question
^f probable canse. — The harden is on the plaintiff to show
affirmatively, by circumstances or otherwise, that the defend-
ant had no ground for the prosecution, — no such reasonable
ground of suspicion, sufficiently strong in itself, as to war-
rant a cautious man in believing that the person to be arrested
-was guilty of the offense with which he was charged.^ What
these circumstances may be of course depends upon the cir-
cumstances of each particular case, but among them the good
character of the party accused will stand'out prominently. All
must admit that that is, and must be, a strong fact, if known
to the accuser, to ward off suspicion, and therefore for this
purpose it is entirely competent for the plaintiff in the ac-
tion, in his opening proof, to show that his character was good,
^nd known to be so by the defendant when the accusation
was made. As the burden of proving a negative — the ab-
sence of probable cause — is thrown upon the plaintiff, slight
evidence will usually suffice for such purpose. But evidence
of a nniform good character up to the time of the charge
is something more than slight evidence, and the plaintiff
should have the benefit of it. If known to the prosecutor,
what simple fact is better calculated to weaken a belief, he
being a prudent and cautious man, in the guilt of the sus-
pected party? On the other hand, his bad character may be
shown by the defense as a good ground for augmenting a
suspicion against him.^
1 Jacks V. Stimpson, 18 111., 701 (1858); Israel ▼. Brooks, 28 HI., 673
^1851); Hurd t, Shaw, 20 IlL, 856 (1860).
2 Israel v. Brooks, 23 UL, 575 (1860).
18
274 probable 0au8k.
Applications of the law. —
Iteasonable inquiry as to character of the accused — An dement of prdbaJble
cause,
Feeney was in the employ of a wholesale hoase in Chicago. He was
trusted with their goods and a key of their establishment. One night he
went into Hirsh*s store and paid a small bill. There was nothing suspi-
cious about his entry or departure. Hirsh did not remember of his having
been there at all, or at least on the next day he had forgotten it. That
same night the store was entered by burglars and robbed. Hirsh consulted
detectives, and finally procured the arrest of Feeney. There being no
evidence against him he was discharged after a short imprisonment. He
then brought an action against Hirsh for malicious prosecution. On the
trial the jury found for the plaintiff $1^200.
On an appeal being taken, on the question, Did Hirsh in causing the ar-
rest to be made act as a cautious aud prudent man under the circumstances,
Mr. Justice Walker said: **The whole of the evidence, with the attend-
ing circumstances, should be considered in determining whether there is
probable cause. The jury were bound to consider the facts that the man*
ner in which Feeney had entered Hirsh's store the evening before the
burglary was committed had not attracted his attention, even so that he
remembered his having been in the store when asked the next day if any-
one had been in, and he had forgotten it. His entrance, therefore, ex-
cited no suspicion, nor did it even attract attention at the time. Again,
Feeney seems to have sustained a good character, and in determining
whether his character was good or bad, he should have applied to his em-
ployers, or those with whom he was intimate, and not to persons who
knew him but slightly. He and the officers, it seems, referred to the city
directory to find his residence, and we presume they there found his occu-
pation, and with whom he was employed, and if so, he should have been
apprised of the fact that he was respectable, and was trusted by business
men ; and knowing that, he had no right to believe, because Feeney had
entered his store the evening before in such a manner as to attract no at-
tention, that he was therefore a burglar, notwithstanding he was employed
and trusted by men engaged in business in the city. The officers were, no
doubt, largely influenced in forming their opinion and in giving advice by
what Hirsh had told them. The fact that Feeney was a householder, had
a good character, and was trusted by business men, should have prevented
Hirsh from supposing him guilty, except on strong evidence of the fact.
It was his duty to have used reasonable efforts to learn and know his true
character, especially when the directory pointed him to the sources of im«
formation. Hirsh v. Feeney, 83 III., 548 (1876).
§ 8. Gross negligence — Error — Mistake — As alfecting
probable cause — Reeyes, J. — " While the law is that an hon-
est belief in the party swearing out a warrant for the arrest
of another upon a criminal charge, that such person is prob-
ably guilty, will not constitute probable cause if he could hayc
PEOBABLB OAT78S. 275
ascertained such belief bat for gross negligence on bis part,
acting as an ordinarily prudent person would under like cir-
cumstances, still a mistake or error not amounting to such
gross negligence would not affect the question of probable
cause where there was such honest belief." ^
Application op the law. —
A belief induced by error and negligence,
McQuire made a complaint upon which Goodman was arrested for tres-
pass for catting timber and brought before a justice for preliminary exam-
ination. Subsequently this proceeding was discontinued and an information
for the same offense against Goodman and others was filed in the county
court, and Goodman arrested and held to bail. Before the trial the state's
attorney entered a nolle as to Goodman, who then brought an action against
MoGuire for malicious prosecution. On the trial the jury were instructed:
** Although the defendant may have honestly believed, at the time the pros-
ecution was commenced, that there was reasonable and probable cause for
such prosecution, yet if this belief on his part, however confident and
strong, was induced by his own error, mistake or negligence, without any
occasion for suspicion given by plaintiff, such belief of the plaintiff will
not amount to probable cause." There was a judgment for the plaintiff,
which was reversed on appeal, the appellate court holding that a mistake
or error not amounting to gross negligence does not affect the question of
probable cause, where there is an honest belief that a person is probably
guilty on the part of the party swearing out a warrant for his arrest. McGuire
V. Goodman, 81 111. App., 420 (1889).
§ 9. Ignorance of the law excuses no one. — A person who
commences a groundless action or prosecution must be pre-
sumed to know that his action or prosecution will not lie. It
is a correct doctrine in law, that what a man is bound to know
the law presumes he does know and holds him responsible ac-
cordingly. A man ought not to take out legal process to
seize the property or arrest the person of another without some
knowledge on the subject-matter of the suit or prosecution
in which such process is issued, and the law applicable to the
subject-matter, and he ought to be responsible for the conse-
quences, if he acts in utter recklessness and ignorance. But
the presumptiQn, in point of fact, is that he does know the
law, because it is within the common experience that men
not themselves instructed in the law do not ordinarily take
such measures without legal advice.^
1 McGuire v. Goodman, 81 111. ^WUls v. Noyes, 29 Mass., 824
App., 420 (1889). (1882).
276 PB0BA3LB 0AV8B.
§ 10. Character of accused where the charge is upon in-
formation and belief. — In all cases where a criminal charge
is made upon information and belief, evidence that the person
charged had a character the natural tendencies of which would
not prompt the person to commit the act charged is competent
to enable the court or jury to determine the question whether
the prosecutor had reasonable ground for entertaining the
belief notwithstanding such character. When a person has
an unblemished character, the prosecutor is aware of the fact
that it must necessarily require more evidence to create a
reasonable belief of guilt than where the character is bad.
This is the rule when the prosecution is based upon informa-
tion and belief, but the reason for the rule ceases in cases
where the prosecution is based on a direct knowledge of the
facts.^
§ 11. Probable canse a mixed question of law and fact. —
The question of probable cause is a mixed question of law
and fact. Whether the circumstances alleged to show it prob-
able are true and existed is a matter of fact, and to be deter-
mined by the jury; but whether, supposing this to be true,
they amqunt to probable cause, is a question of law.^ It is
true cases may be found in some jurisdictions holding differ-
ently, but the doctrine as announced is philosophical, and has
been generally adopted in American courts.
§ 12. Discussion of the subject. — In an action of mali-
cious prosecution, the affirmative is on the plaintiff to show
want of probable cause. As respects a criminal prosecution,
the following definition of " probable cause " is approved by
many authorities, viz. : " a reasonable ground of suspicion, sup-
ported by circumstances sufficiently strong in themselves to
1 Skidmore v. Bricker, 77 III.. 164 29 N. W. Rep., 747; 17 N. W. Rep.,
(1875). 34 ; 19 N. W. Rep., 810 ; Ross ▼. Lang-
2Be88on V. Southard, 10 N. Y., 236 worthy (Neb.), 14 N. W. Rep., 515;
( ); Stewart v. Sonneborn, 98 Castro v. De Uriarte, 16 Fed. Rep.,
U. S.. 187 (1878); McCormick v. Sis- 93; Gee v. CulverCOre.), 6 Paa Rep.,
son. 7 Ck)w. (N. Y.), 715(1827); Grif- 775; SartweU v. Parker (Mass.), 5
fis V. Sellai-s. 2 Dev. & B. (N. C), N. E. Rep., 807; McNulty v. Walker
492 (1837); Moore v. Railroad Co. (Miss.), 1 South. Rep., 65; Bell v.
(Minn.), 83 N. W. Rep., 334; Burton Keepers (Kan.), 14 Pac. Rep., 542;
Y. Railroad Co. (Minn.), 22 N. W. Bell v. Matthews (Kan.), 16 Pac
Rep., 800; Johnson v. Miller (Iowa), Rep., 97.
PBOBABLB OAUSE. 277
-warrant a cautious man in the belief that the person accused
is guilty of the offense with which he is charged."^ Mutatis
mutandis^ this definition is applicable to civil prosecutions or
actions. As to them, probable cause may be defined as such
reasons, supported by facts and circun\^tances, as will war-
rant a cautious man in the belief that his action, and the
means taken in prosecuting it, are legally just and proper.^
What facts, and whether particular facts, constitute prob-
able cause, is a question exclusively for the court. What
facts exist in a particular case, where there is a dispute in
reference to ^ them, is a question exclusively for the jury.
When the facts are in controversy, the subject of probable
cause should be submitted to the jury, either for specific find-
ings of the facts, or with instructions from the court as to
what facts will constitute probable cause. These rules in-
volve an apparent anomaly, and yet few, if any, rules of the
common law rest upon a greater unanimity or strength of
authority.'
But while the question, what facts make out probable cause,
is for the court, it is ordinarily, if not always, really a ques-
tion of fact to be determined upon the facts and circumstances
of the particular case; and hence it has been sometimes re-
gretted that it was not, as in the law of Scotland, a question
for a jury.* Considerations of public policy, in view of the
importance of not discouraging public prosecutions, or the
prosecution of private suits in good faith and with honest
purposes, have, however, led to the establishment and main-
tenance of the rule.*
For the purpose of reviewing the action of trial courts in
determining the question of probable cause, the appellate
lCk)le V.Curtis, 16 Minn., 182 (Gil., art v. Souneborn, 98 U. S., 187;
161) (1870); Casey v. Sevatson, 30 Speck v. Jiidson, 68 Me., 207; Grant
Minn., 516; 16 N. W. Rep.. 407. v. Moore, 29 Cal., 644; Thaule v.
»2 Greenl. Ev., § 454; Stewart v. Krekeler, 81 N. Y., 428; Cole v. Cur-
Sonneborn, 98 U. S., 187 (1878). tis, 16 Minn., 182 (Gil.. 161).
'Sutton y. Johnstone, 1 Term R. * Lister v. Ferryman, L. R, 4
(Durn. & E.), 498 (Lord Mansfield); H. L., 521.
Panton v. Williams, 2 Q. B., 169; ^Cole v. Chartis, 16 Minn., 18»
Lister v. Ferryman. L. R., 4 H. L., (1870); Stewart v. Sonneborn, 98
521; Stone v. Crocker, 24 Fick., 81; U. S., 187 (1878); Stone v. Crocker,
Kidder v. Farkhurst, 3 Allen, 898 ; 24 Fick. (Mass.), 81 (1841).
Ash y. Marliw, 20 Ohio, 119; Stew-
^1b PBOBABLB 0AU8K.
courts have treated it as a qaestion of law, beoanse deter>
mined by the court, and have therefore considered and exam-
ined the evidence bearing upon it as freely as if the qaestion
was before them originally.^
§ 1 3. Province of the court and jury. — What is meant by
the expression that probable cause is a mixed question of law
and fact is, if the circumstances of the case which are adduced
as proof of a want of probable cause are controverted, if con-
flicting testimony is to be weighed, or if the credibility of
witnesses is to be passed on, the fact of the existence or non-
existence of probable cause should be submitted to the jury
with proper instructions as to the law. But where there is no
dispute about the facts, it is the duty of the court on the trial
to apply the law to them and pronounce upon the legal effect
of the evidence without the intervention of the jury.*
§ 1 4, The law statf ^ V Marcy, J. — " It is conceded on all
hands that the questioa ol probable cause is a mixed question
of law and fact, and it wouid seem necessarily to result that
the jury are to say whether the circumstances relied upon to
show probable cause reall}" existed; and the court are to de-
cide, if they did exist, whether they constituted probable
cause. A judge, therefore, who would assume the right to
determine the whole question, to the exclusion of the jury,
would encroach upon their province." •
§ 1 5. The law stated by Morton^ J. — The question of prob-
able cause is a mixed question, partly of law and partly of
fact; but not, as in many cases, so combined as to blend the
duties of the court and jury. What facts constitute prob-
able cause is a question for the court. Whether those facts
exist in each particular case is a question for the jury. The
jury must weigh the evidence and ascertain what facts are
1 Burton v. St Paul. M. & M. R'y 187; Speck v. Judson, 63 Me., 207;
Co., 33 Mixm., 189; 22 N. W. Rep., Grant v. Moore, 29 Cal., 644; Thale
801 (1885). V. Krekeler. 81 N. Y., 428; Cole ▼.
2 Gorton v. De Angelis, 6 Wend. Curtis, 16 Minn., 182; Rosenkranz
(N. Y.), 418 (1831); Sutton v. John- v. Baker, 115 III., 332; Atchison, T.
atone, 1 T. R.. 493: Panton v. Will- & S. F. R. Co. v. Watson (Kan.), 15
iams, 2 Q. B., 169 ; Stone v. Crooker, Pac. Rep., 877 ; Bulkeley v. Keteltaa,
24 Pick., 81 ; Kidder v. Parkhurst, 3 2 Seld., 384.
Allen, 393; Ash v. Marlow, 20 Ohio, > Masters v. Deyo, 2 Wend. (N. T.),
119; Stewart v. Sonneborn. 98 U. S., 424 (1829).
PBOBABLE OAUSB. 279
proved, and the court must determine the inference of law
from them. The facts must be such as will induce a candid
And intelligent man in the defendant's situation to believe
the plaintiff to have been guilty of the crime for which he
was prosecuted.^
Application op thb law. —
(1) Action for mcdicioua civil prosecution — Probable cause.
On the trial of an action for maliciously commencing and prosecating a
civil suit* it was shown that Gorton sued De Angelis in a justice^s court, and
February 9, 1829, the parties appeared before the justice, J. B. Beed, "Esq,,
and the plaintiff declared for a quantity of hogsheads, barrels, etc, and
for work and labor. The defendant pleaded the general issue, and gave a
general notice of set-off, and claimed damages for leakage of the hogs-
heads, etc., and the cause was adjourned until February 26, when at the
T^iquest of the defendant it was further adjourned until April 1, and sub-
sequently, on a like request, until May 2, and afterwards until May 12,
w^here the cause was tried and a judgment rendered for the plaintiff for
^.98 damages. While this suit was pending De Angelis commenced a
«uit by summons against Gorton, before another justice, viz., W. Town-
send, Esq. The action was trespass on the case, and the summons was re-
turnable April 14. Gorton appeared, and De Angelis not appearing the
suit was discontinued. A few minutes after the discontinuance, and
previous to Gorton's leaving the court, De Angelis appeared and took out
« new summons, in an action of trespass on the case, against Gk>rton, re-
turnable April 21. On the return of this second summons the parties
appeared, and De Angelis declared against Gorton, charging him with
damage sustained in the leaking of certain hogsheads, and with money
paid, etc. Gorton pleaded the suit commenced by him against De An-
gelis in bar of a recovery, averring that De Angelis had set off the
same matters now alleged in his declaration in that suit, and asked for
time to procure the attendance of J. B. Reed, Esq., the justice before
whom the first suit was commenced. Time was granted. This was
at about 4 o'clock in the afternoon. At 10 o'clock P. M., Gk>rton not
having returned, the justice, Townsend, proceeded to the hearing of the
cause, and gave judgment for De Angelis for the sum of $28.32. Gk>rton
returned, and brought with him Reed, the justice, about fifteen minutes
after the judgment was rendered against him by Townsend. De Angelis,
having withdrawn two items of the demand exhibited before the justice
April 21, took out another summons from Townsend, in an action of tres-
pass on the case against Gorton, returnable April 28 ; on which day Gk>rtoa
appeared, and, De Angelis not appearing, the justice rendered judgment
against him for costs. The justice stated that before Gorton went away he
thought that De Angelis came, but could not be confident of the fact. The
AummoDB was returnable at the distance of nine miles from the residence
1 Wilder y. Holden, 41 Mass., 8 (1883).
280 FBOBABLB CAUSE.
of Gorton. Grorton appealed from the judgment rendered against him
April 21 to the common pleas, and April 80 discontinued the same and
paid the costs of the appeal. On those facts appearing, and the plaintiff
re^^ting, the defendant moved for a nonsuit on the ground that no evidence
of want of probable cause had been given.
The judge decided that, on the evidence before him, the question of
want of probable cause was a question of law, and that in his opinion the
plaintiff had failed to establish this essential ground of his action, and di-
rected a nonsuit to be entered, which the plaintiff now moved to set aside.
Marcj, J. : ** If the facts which are adduced as proof of a want of prob-
able cause are controverted ; if conflicting testimony is to be weighed ; or
if the credibility of witnesses is to be passed upon, the question of prob-
able cause should go to a jury with proper instructions as to the law ; but
when there is no dispute about the facts it is the duty of the court on the
trial to apply the law to them. Ip this case there was no contest about the
facts, no conflict in the testimony, no impeachment of the witnesses. W&
cannot, therefore, say the judge erred in assuming to himself to pronounce
upon the legal effect of the evidence, nor do we think he erred in the con-
clusion to which he arrived." ^he motion was denied. Qorton v. De An-
gelis, 6 Wend. (N. Y.), 418 (1831). Citing Masters v. Deyo, 2 Wend. (N. Y.).
424.
(2) WTiere the facta are undisputed the question of probable cause ie for
the court to determine.
McNulty owned some hogs, which had disappeared. He was informed
that Brasfield and Walker had killed them. He went to see them, and
asked them about it, but they denied having even seen his hogs. Not being
satisfied with this denial, he made affidavit against both of them before a
justice of the peace, charging them with killing liis hogs. They appeared
before the justice. A trial was had, which resulted in the conviction of
Brasfield, and the acquittal of Walker. Walker, feeling aggrieved at this
action of McNulty, sued him for malicious prosecution.
^ On the trial, defendant, McNulty, asked the court to charge the jury ta
find for him, which the court refused. A trial being had, resulted in ft
verdict for plaintiff, and McNulty was mulcted in the costs of the suit,
from which judgment he appealed.
In delivering the opinion of the supreme court, Arnold, J., said: "The
verdict was manifestly wrong, and the instruction asked by appellant, to
the effect that the jury should find for him, should have been given. In
an action for malicious prosecution it is essential for the plaintiff to show
that the prosecution complained of was instituted with malice and without
probable cause. Here the proof, by uncontradicted testimony, of probable
cause, — that is to say, of such a state of facts as would ordinarily be suffi-
cient to produce a reasonable belief that the party charged was guilty, — is
abundant. It is not disputed that his hogs were kille<l by appellee and
Brasfield, nor that appellant was told by Vail that he had been informed
by the McGees that they had seen appellee and Brasfield kill the hogs, nop
that afterwards, and before appellant made affidavit for the arrest, he
went to Brasfield and made inquiry in regard to the matter, and that he-
^BOBABLB OAUSS. 281
denied that he and appellee had heen in the bottom, or seen -appellant's
•hog^s.
''What constitutes probable cause, or whether there was probable cause
for the prosecution, is generally a niized question of law and fact; but if
the facts are undisputed, it then becomes a question of law to be deter-
mined by the court. In this view of the law and the facts, the judgment
is reversed and cause remanded." McNulty v. Walker, 64 Miss., 198; 1 So.
Bepi, 55 (1887). Citing Green wade v. Mills, 81 Miss., 464 ; Whitfield v. West-
brook, 40 Miss., 811; Ck)o]ey, Torts, 181.
§ 1 6. ProTince of the court and jury — Malice and probable
cause. — In one of the earliest cases ^ Lord Mansfield instructed
the jury that the foundation of the action for malicious pros-
ecution was malice, and all the judges concurred that " mal-
ice either expressed or implied and the want of probable
cause must concur." For more than a hundred rears such
has been constantly held to be the law in all English-speaking
countries.^ The existence of malice is always a question ex-
clusively for the jury. It must be found by them or the ac-
tion cannot be sustained. Hence it must always be submitted
to them to find whether it existed. The court has no right to
find it, nor to instruct the jury that they may return a verdict
for the plaintiflF without it.* Even the inference of malice
from the want of probable cause is one which the jury alone
can draw.*
Lord Denman: "I have always understood the question of
1 Farmer ▼. Darling, 4 Burr., 1971 834 (1823); Turner v. Walker, 8 GUI
(1766). & J. (Md.), 877 (1881); Smith v.
« Virgin v. Ck)ffin, 3 Story, 1 (1886); Shackleford, 1 Nott & M. (S. C.X 86
GookT. Walker, 80 Ga., 519(1860); (1818); Stone ▼. Stevens, 12 Conn..
Wade V. Walden, 23 111., 426(1860); 219 (1887); Young v. Gregorie, 8
Ammerman v. Crosby, 26 Ind., 451 Call (Ya.). 446 (1802); Mima v. Da*
(1866): Center v. Spring, 2 Iowa, 893 pont, 2 Browne (Pa.), 42 (1807); Son*
(1849): Malone ▼. Murphy, 2 Kan., neborn v. Stewart, 98 U. S., 187
250 (1864); Dickenson v. May wood, (1878).
20 I A. Ann., 66 (1868); McLellan v. 'Stewart v. Sonneborn, 98 XJ. S.,
Cumb. Bank, 24 Me., 566 (1844); 187(1878).
Stone ▼. Crocker, 24 Pick. (Mass.), 88 < Wheeler v. Nesbitt, 24 How.
(1841); Green wade v. Mills, 31 Miss., (U. S.), 544(1860); Newell ▼. Downs,
464 (1856); Moore v. Sanborin, 42 8 Blackf. (Ind.), 523 (1847) ; Johnson
Mo., 490(1868); Bessen v. Southard, v. Chalmers, 10 Ired. L. (N. C), 287
10 N. Y., 236 (1851); Campbell v. (1849); Van Voorhees v. Leonard, 1
O'Brien, 9 Rich. (S. C), 204 (1855); N.Y. Sup. Court (T.&C). 148(1874);
Hitson V. Forest, 12 Tex., 320 (1854); Schofteld v. Ferrers, 47 Pa. St., 194
Kelton V. Bevins, Cooke (Tenn.), 90 (1864): Stewart v. Sonneborn, 98
<1812); Bell v. Ursury, 4 Litt. (Ky.), U. S., 187 (1878).
282
PBOBABUS OJLTJStL
reasonable or probable cause on the facts found to be a ques-
tion for the opinion of the court, and malice to be altogether
a question for the jury." *
Justice Strong (U. S. Sup- Ct, 1878): " It is generally the
duty of the court, when evidence has been given to prove or
disprove the existence of probable cause, to submit to the jury
its credibility, and what facts it proves, with instructions that
the facts found amount to probable cause, or that they do
not." ' There may be and there are, doubtless, some seeming
exceptions to this rule, growing out of the nature of the evi-
dence, as where the question of the defendant's beliof of the
facts relied upon to prove a want of probable cause is in-
volved. What his belief was is always a question for the
jury." •
§ 17. Evidence of the want of probable caase. — The bur-
den of establishing by competent evidence the want of rea-
sonable or probable cause falls upon the plaintiff. Though
a negative proposition, it generally requires but little evidence
to establish it. It is the essential ground of an action for
malicious prosecution. Malice may be inferred from the want
of probable cause, but the want of probable cause cannot be
inferred from anything but positive and express proof. The
burden of proof is upon the person asserting it to show aflBrm-
atively, by circumstances or otherwise, as be may be able,
that there was no reasonable or probable cause or grounds for
oommencing the proceedings in question.^
The rule as held by other American courts seems to be that
an acquittal or discharge by the examining magistrate or
grand jury is competent^ but is not sufficient evidence to show
the want of reasonable or probable cause.*
^Mitchell V. Jenkins, 5 B. & Ad.,
588.
2 Stewart v. Sonneborn, 98 U. S.,
187(1878); Taylor v. V^miams, 2 B.
-& Ad., 845.
* Stewart v. Sonneborn, 98 U. S.,
187 (1878).
<HaU V. Hawkins, 5 Humph.
(Tenn.), 357(1871): Stone v. Crocker,
24 Pick. (Mass.), 81 (1832); Bitting v.
TTen Eyck, 82 Ind„ 421 ; 42 Am. Rep.,
505 (1882); Hayne v. Blair, 62 N. Y..
19 (1875); Skidmore V. Bricker, 77
III., 164 (1875); Caperson ▼. Sproule,
89 Mo., 39 (1866); Travis v. Smith,
1 Pa. St., 234 (1845); Marable y.
Mayer, 78 Ga.. 710(1887); Good y.
French, 115 Mass., 201 (1874); Levi
y. Brannan, 89 CaL, 485 (1870);
Wheeler v. I^esbitt, 24 How. (U. a),
544 (1864); Malone y. Murphy, 2
Kan., 250(1864).
<^ Williams y. Van Meter, 8 Mo.,
860; 41 Am. Dec, 644 (1848); Fleok-
fbobablk gauss. s83
Digest of bxosint oases. —
The discharge of the plaintiff by the examining magistrate is prima
Jade evidence of the want of probable cause sufficient to throw upon the
defendant the burden of proving the contrary. Seoor v. Babcock, 2 Johns.
(N. Y.). 203; Israel v. Brooks. 28 111., 575 (1860); Jones v. Finch, 84 Va.,
204; Grould v. Sherman, 10 Abb. Pr. (N. Y.), 411; Johnson v. Martin, 2
Murphy (N. C), 248; Mitchinson v. Cross, 68 HI., 866 (1871); Ckwper v.
Utterback, 87 Md., 282; Frost v. Holland, 75 Me., 108; Vinal v. Core, 18
W. Va., 1; Josselyn V. McAllister, 25 Mich., 46; Sharp v. Johnson, 76 Mo.,
660; Jones v. Finch, 84 Va., 204; Boonholdt v. Lorrilard, 86 La. Ann., 108.
The verdict of a jury upon the trial of a civil action is essentially differ-
ent from the discharge of a supposed criminal by the examining magis-
trate, or upon a bill of indictment ignored by a grand jury. Even in the
criminal proceeding the final acquittal of the accused can have but little
weight as evidence of probable cause compared with an acquittal or dis-
charge before the magistrate or grand jury. The magistrate and grand jury
have the very question of probable cause to try ; and the evidence on the
side of the prosecution is alone examined and the proceeding is entirely
ex parte. Under such circumstances the refusal of the examining tri-
bunal to hold the accused over till tried must necessarily be very persuasive
evidence that the prosecution is groundless. Brant v. Higgins, 10 Mo.,
728.
The discharge of the defendant in a criminal prosecution does not raise
a presumption of want of probable cause. Williams v. Van Meter, 8 Mo.,
839; Stone v. Crocker, 24 Pick. (Mass.), 8; Heldt v. Webster, 60 Tex., 207;
Thompson v. Beacon Valley R. Co. (Conn.), 16 Atl. Rep., 554; Griffis v.
Sellars, 2 D. & B. (N. C), 492; 81 Am. Rep., 422; Griffin v. Chubb, 7 Tex.,
603; 58 Am. Dec., 85; Bitting v. Ten Eyck, 82 Ind., 421; 42 Am. Rep.,
505.
Where an accusat ion of felony is withdrawn, and the defendant is con-
victed of a misdemeanor included in the felony charged, but is acquitted
on appeal, the conviction is not such evidence of probable cause as will de-
feat an action for malicious prosecution based on the charge of felony.
Whitney v. Peckham, 15 Mass., 248; Labar v. Crane, 49 Mich., 561; Den-
nehey ▼. Woodsum, 100 Mass., 197; Cloon v, Gerry, 8 Gray (Mass.), 203;
Crescent City Live Stock Co. v. Butchers' Union, etc., 120 U. S., 141.
§ 18. Proof of the want of probable cause^ etc. — It is nec-
essary for tbe plaintiff to establish on the trial that the prQse-
cation or proceedings complained of were carried on without
probable cause. The question of probable cause being a
mixed question of law and fact, it is necessary to show only
the circumstances relied upon to establish the facts and the
legal consequences follow. The proofs will of course vary
inger v. Wagner, 48 Md., 680(1877); v. Tschechtelen, 13 Daly (N. Y.), 84
•Grant v. Denel, 8 Rob. (La.), 17; (1881).
4)8 Am. Dec, 238(1842); Dorendenger
'284 FBOBABLB OAUSB.
with the circumstances of each particular case, and are sub-
ject to the same general rules governing the introduction of
evidence in other cases.*
§ 1 9, Evidence of probable' cause. — I. Conclusive evi-
dence.— It has been universally held by our courts that the
conviction of a person charged with the commission of a crim-
inal offense is evidence, and generally conclusive evidence, of
probable cause ; ' but it is always competent to show, however,
to overcome the conclusive character of such evidence, that
such counter-claim was obtained wholly or chiefly by the false
testimony of the opposing party.'
Application of the law. —
(1) Conviction before justice must be for the identical prosecution com^
plained of.
In October, 1879, Crane instituted a prosecution against Labar before a
justice of the peace of Kalamazoo, charging him with making an assault
upon complainant with a gun, with intent to murder; Labar was arrested
upon this charge, but after a continuance of the case for a time, the com-
plaint was withdrawn and one for simple assault and battery substituted,
upon which Labar was tried and convicted; he appealed the case to the
circuit court, where he was tried and acquitted. Crane and others were
witnesses against him in the justice's court, and also in the circuit court,
and the case in the circuit court was disposed of without the introduction
of evidence by the defense. Labar then sued Crane and the witnesses
who had testified against him for a malicious prosecution. On the trial
he was not successful, and he took the case to the supreme court on error.
In reversing the judgment of the court below, Cooley, J., said: "The
principal question in the case, and the only one we find it necessary to
decide, is whether the conviction of the plaintiff in the justice's court is
conclusive evidence of probable cause. The defendants strongly insist that
ic is, and the circuit judge concurred in that view. It will be observed
1 3 Phillips' Ev., 570 ; 8 Greenleafs * Bowman v. Brown, 52 Iowa, 437
Ev., 455. (1879); Womac v. Circle, 29 Gratt.
2 Olson v.Neal, 63 Iowa, 214(1884); (Va.), 192 (1877); Olson v. Neal, 63
Parker v. Farley, 10 Cush. (Mass.). Iowa, 214 (1884); Cloon v. Gerrey,
279 (1852); Bitting v. Ten Eyck, 82 13 Gray (Mass.), 201 (1859); Peak v.
Ind., 421 (1882); Williams v. Gowen, Choteau, 91 Mo., 138 (1886); Palmer
14 Me., 362 (1887); Dennehey v. v. Avery, 41 Barb. (N. Y.), 290
Woodsum, 100 Mass., 195 (1868); (1864); Richey v. McBean. 17 111., 6:^
Clements v. Od. Ex. App. C!o., 67 (1874): Pay son v. Cass well, 22 Me.,.
Md., 461; 1 Am. St. Rep.. 409 (1887); 212 (1842); 14 Am. & Eng. Ency.
Kaye v. Kean, 18 B. Mon. (Ky.), Law, 66 (1891).
839; Philips v. Kalamazoo, 53 Mich.,
83(1884).
FBOBABLE OAUSB. ^ 285
ibat there were two prosecutions: one for assault with intent to murder,
and the other for a simple assault, in which the plaintiff was at first con-
victed and then on appeal acquitted. The plaintiff in different counts of
his declaration complains of each prosecution as malicious and groundless,
and the first, by the admission of the complaint in abandoning it, must be
deemed groundless, unless the institution of the second, and the result of
the trial in the justice's court, can by retroactive effect give evidence of
probable cause.
" If the second prosecution was in legal effect identical with the first,
«nd only instituted because of some technical defect or other imperfection
or failure in the first, the argument of the defendants would bo plausible
and perhaps conclusive. But the two prosecutions were far from being
identical in legal effect. The first was for one of the highest offenses
known to the law ; a felony which, in the discretion of the court, may be
punished with imprisonment for life. It is therefore ranked in criminality
with murder itself. The second was for a misdemeanor, which a court
only enipowered to try trivial offenses and inflict insignificant punishments
was competent to deal with. The first, when instituted on probable cause,
exposes the respondent to great peril and corresponding loss in standing
and reputation ; it may call for heavy and perhaps impossible bail, and in
every respect the consequences to the party accused are as different from
the other as it is possible for two cases, both criminal in form, to have.
No court has held that there was probable cause to believe the felony was
committed, and as has been said, the complainant abandoned all attempt
to prove it.
" It is perfectly true that if the felony had been committed the misde-
meanor would have been included in it ; but the particular misdemeanor
of which the justice found the plaintiff guilty could not have been included
in a felony if no felony was committed. In point of fact, when the charge
of misdemeanor was tried there was no accusation of felony whatever ;
«
and it would be monstrous to hold that because an assault might have been
committed in an attempt to murder, therefore the conviction of this par-
ticular assault is evidence of probable cause to charge such an attempt.
To hold this would be to justify the making of a charge of the felony in
every case of assault, no matter how trivial, and might excuse the most
groundless and atrocious prosecutions." Labar v. Crane, 49 Mich., 561;
14 N. W. Rep., 495 (1888X
<2) Verdict of guilty founded on correct instructiona conclusive of evidence
probable cause,
Samuel Parker was indicted, tried and convicted of perjury. He took
exceptions to the rulings of the court, but they were overruled. He then
moved for a new trial, alleging that he had been convicted on false evi-
dence, etc. His motion was sustained, and the case was then continued on
the docket for five years, when the district attorney entered a nolle prose-
qui. Then Parker sued Farley, who had made the complaint upon which
he was indicted, for malicious prosecution. On the trial before the chief
justice the question was, " Was the conviction of the plaintiff by the jury
286 PBOBABLB 0AIT6S.
in point of law proof of probable cause?'* The chief jnstice expressed an*
opinion that it was, whereupon a verdict was taken by consent for the de*
fendant, subject to the opinion of the whole court.
Bhaw, C. J. : ** The court are of the opinion that this action cannot be
maintained. The main question is whether there was probable cause for the
prosecution complained of as malicious. Malice may be inferred from the
fact that the complaint was groundless, but not the reverse. Want of
probable cause is not to be inferred even from proof of express malice, and
whether there was probable cause or not is a question of law upon the
facts admitted or uncontested, the truth of which are to be ascertained
by the jury on the evidence submitted to them. Now in looking into the
record of this case we find that on the only trial by jury they found him
guilty. Exceptions were taken and overruled. At this stage of the cause
the plaintiff stood liable to be sentenced, but he was granted a new trial to
admit newly-discovered evidence, but it was never brought before the
Jury, and no new trial was ever had. The court are therefore of the opin-
ion that such a verdict of conviction upon instructions correct in matter
of law, though afterwards set aside for another cause, must be regarded
as proof of probable cause for the prosecution, and stand as a bar to the
prosecution of this suit." Parker v. Farley, 10 Cush. (64 Mass.X 279 (1852).
(8) Verdict of a fury for a set-off in a civil suit evidence of probable cause.
Thompson and others sued Dolan on two promissory notes signed by him.
Dolan set up in defense (1) that he had paid the notes, and (2) that he had a
claim in set-off against Thompson ef aZ. ^larger than the amount of the
notes, and the jury returned a verdict for Dolan under his declaration of
set-off. Afterwards Dolan sued Thompson et al, for malicious prosecution.
On exception it was held that the verdict of the jury was conclusive that
Thompson et aJ, had a cause of action against Dolan, and that his action for
malicious prosecution could not be maintained. Dolan v« Thompson et al.,
129 Mass., 205(1880).
(4) A verdict of guilty in a criminal prosecution, though obtained by false
testimony, and set aside for newly-discovered evidence, and a verdict of
not guilty returned^ is conclusive evidence of probable catise in a sub-
sequent action for mcUiciou^ prosecution.
Samuel Parker sued Asahel Huntington for a malicious prosecution. On
the trial he offered to prove that, at the time of the prosecution complained
of, Huntington, being then district attorney, obtained pursuant to concert
with one Farley, and by false testimony of Farley, and knowing it to be
without probable cause, an indictment against him for perjury, and caused
him to be arrested and tried thereon. It appeared from the record that the
indintnient contained two counts alleging the same perjury on two distinct
occasions. Parker was tried on both counts and convicted. The instruc-
tions were correct, but he obtained a new trial on newly-discovered evi-
dence. On the new trial only one count was submitted, and on this he was
acquitted, and the then district attorney therefore entered a nolle prosequi
on the other count. The plaintiff offered to prove that notwithstanding
the record the said prosecution was malicious and without probable cause.
PBOBABLB CAUSE. 287
the noUeproaequi was entered because of the acquittal, and that niore than
six years had elapsed since the alleged perjury, but the court ruled that
the evidence would not sustain the action. A verdict for the defendant
"was directed and the case reported to the full court.
Hetcalf, J., delivered the opinion of the court: *'Thi8 case furnishes no
exception to the general rule that a conviction of a party by a jury is
conclusive evidence of a probable cause for the prosecution." Parker v,
Huntington, 78 Mass., 86 (1856). Citing Parker v. Farley, 10 Cush., 279;
Parker v. Huntington, 2 Gray, 124 ; Phelps ▼. Stearns, 4 Gray, 105.
(5) A eonvietion before a juatiee of t?ie peace evidenee of probable cause.
It was alleged that Gerry, maliciously contriving to injure Clopn, and
without probable cause, made a complaint to a justice of the peace against
him for an illegal sale of intoxicating liquor. On this complaint Cloon was
tried before the justice, convicted and sentenced. He appealed to the court
of common pleas, and was there tri^ and acquitted. Then he brought an
action against Gerry for malicious prosecution. On the trial he was non>
suited by the court, and, having alleged exceptions, the nonsuit was sus-
tained.
Shaw, C. J. : "On this case the court ruled that such conviction was
proof of probable cause ; or, to state the proposition with more precision, it
negatived the plaintiff's leading and essential averment that the complaint
was made without reasonable and probable cause, and that, for this reason,
the action could not be maintained, and therefore ordered a nonsuit. The
court are of the opinion that the direction was right.*' Cloon ▼. Gerry, li^
Hass., 201 (1859).
(6) Evidence of prcbable cause — Conviction on trial before justice.
Whitney sued Peckham for maliciously prosecuting him before a justice
of the peace for an assault and battefy. On the trial the plaintiff offered
a copy of the record of the proceedings before the justice, by which it ap-
peared that he pleaded not guilty, but the justice found him guilty, and
sentenced him to pay a fine of $2 and costs. It was shown that he appealed
to the circuit court, where he was acquitted. The trial judge, being of the
opinion that the conviction before the justice, he having jurisdiction of the
subject-matter of the complaint, was conclusive evidence that there was
probable cause, directed a nonsuit. The point being reserved for the opin-
ion of the whole court was confirmed. Whitney v. Peckham, 15 Mass., 24&
(1818). See Reynolds v. Kennedy, 1 Wils., 282; Cotton v. James, 1 B. &
Ad., 128; Pierce ▼. Thompson, 6 Pick., 198.
(7) Collateral Judgment, when evidence of probable cause.
Hunt bad brought suit and recovered judgment against one Collins, an
engineer of the St. Johusbury & L. C. R. Co., for injury to a heifer struck
by one of its locomotives in charge of said Collins. Collins was arrested
while on duty, thereby delaying an important train. Suit was brought
288 ITAOBABUB OAUSS.
against Hunt to recover damages for such delay. The declaration allied,
in substance, that said suit was brought without any just cause of action
i^ainst said Collins, and for the sole purpose of injuring the plaintiff. Oa
demurrer it was held (55 Vt., 570) that the declaration was sufficient, and
that there was nothing alleged to make the judgment in Hunt v. Collins
an estoppel on this plaintiff: and the cause was remanded for trial.
On the trial the defendant, as tending to show that he had a cause of
action against Collins, offered to show that plaintiff had not performed its
statutory duty as to fences and cattle-guards, and that said heifer got on
the track for want thereof. The statute (R. L. Vermont, g§ 3407-8412) re-
quires railroad companies to maintain sufficient fences and cattle-guards,
and makes them and their agents responsible for damage caused by the
want thereof. The court excluded the evidence, to which the defendant
except^.
The defendant offered in evidence a duly-certified copy of record in Hunt
▼. Collins as tending to show that he had a cause of action against said
Collins. The court excluded the evidence, to which the defendant ex-
cepted.
In reversing the rulings it was said by Rowell, J. : '* The declaration al-
leges that the defendant had no cause of action against Collins, and, as
tending to show that he had, he offered to show that plaintiff had neither
fenced its road nor built cattle-guards along where the heifer was killed,
and that she got onto the track for want thereof* Although the defendant
was not bound to show that he had a cause of action against Collins, — for
if he had probable cause to believe, and did believe, that he had, it was
enough, and he might then lawfully sue and arrest Collins, as he did, even
as against the plaintiff, though he did it with the motive alleged, — yet, if
he saw fit to assume the burden of showing that he had a cause of ac-
tion, it was competent for him to do so; for, as the greater includes the
less, he would thereby be showing probable cause, and so the evidence
should have been admitted if it bore on the question, as we think it did.
When a railroad is completed and in running order, it is the statutory duty
of the company to fence it with good and sufficient fences ; and until
its fences and cattle-guards are duly made, the corporation and its agents
are made liable for the damage done by its agents or engines to cattle on
the railroad, if occasioned by want of such fences and cattle-guards, R. L.
Vermont, §S 3409, 3412.
" When this case was before the court on demurrer, it was held there
was nothing alleged to make the judgment in Hunt v. Collins an estoppel
on the plaintiff. The judgment is now offered as evidence tending to show
that Hunt had a cause of action against Collins, But if that judgment is
any evidence in his behalf against the plaintiff, it is conclusive evidence of
probable cause for the suit in which it is rendered *, and as nothing now ap-
pears in this case to make that judgment conclusive on the plaintiff that
did not appear before, the former decision on this point must stand, for a
decision once made in a case is final and conclusive in the case in which it
is made." St Johnsbury & L. C. R. Co. v. Hunt, 59 Vt, 294; 7 Atl. Rep.,
277 (1886). Citing Hathaway v. Allen, Brayt., 152; Reynolds ▼• Kennedy,
2 WiB,, 232; Cloon v. Gerry, 18 Gray, 201.
PBOBABLB CAUSE. 289
11. Pjsima faoib bvidknob. — Upon the question of what is
a safficient showing in the first instance of the want of prob-
able cause, the decisions of the American courts are not quite
uniform. As the conviction of a person by an examining mag-
istrate of an offense charged upon him has been almost uni-
versally held to be conclusive evidence of probable cause, it
would seem reasonable that the converse of the proposition
must hold, that his acquittal should be conclusive evidence of
the want of probable cause; but such is not the law. Green-
leaf states the law as follows: ''The discharge of the plaintiff
by the examining magistrate is prima facie evidence of the
want of probable cause, sufficient to throw upon the defendant
the burden of proving the contrary." ^ This doctrine has been
criticised by some eminent jurists; by others it has been de-
nounced as ''a principle of the most dangerous character."'
1 2 Grpenleaf, Ev., § 455. ciple are two cases from North Caro-
^Breese, J., in Israel v. Roberts, Una. Job nstou v. Martin, 2 Murphy
123 HI., 575(1860). In speaking of the (N. C), 249; Bostick v. Rutherford,
doctrine as announced by Greenleaf , 4 Hawk. (N. C), 88. No good rea-
Judge Breese, in Israel t. Roberts, soning is adduced and these cases
23 111., 575 (1860), says: In support standalone. If the doctrine Is cor-
of the principle as announced. Dr. rectly stated by Dr. Greenleaf, then
Oreenleaf cites Secor v. Babcock, 2 every man who appears before a
Johns., 203, but this case does not magistrate to give information of a
seem to bear him out. The opinion criminal offense incurs the hazard of
In that case is per curiam and is as a prosecution against himself, should
foUows: "The justice had power on the magistrate happen to be igno-
exami nation of a charge of suspicion rant, prejudiced or corrupt. How
of felony or of having stolen goods many magistrates are there in ob-
to dismiss the plaintiff below, if he scure localities, who are as little ca-
was satisfied there was no ground pable of determining what is probable
for the suspicion. The acquittal cause for a criminal prosecution as
was lawful and there was a sufficient they are of explaining any of the
ground for a suit for malicious pros- phenomena of nature? How many
•ecution.'* It seems to be a more rea- do we find prejudiced against a pub-
«onable inference that the discharge lie accuser, how many in sympathy
was a sufficient termination of the with the accused? The decisions of
prosecution upon which to base a such an official, on intricate ques-
suit for malicious prosecution, rather tions of law or fact, should not weigh
than that it was prima facie evidence against the accused, and they do not,
of a want of probable cause, and suf- practically ; for if he is committed,
ficient to cast the burden of proving the grand jury pay no attention to the
the contrary upon the defendant, finding of the magistrate. If a com-
The other authorities referred to by mittal by the magistrate is not prima
Dr, Greenleaf in support of the prin- fade evidence of his guilt, it would
10
390 PBOBABLX 0AU8S.
Our courts, however, seem to be settling down to the mie
that the discharge of a person accused of crime by a committing
magistrate, or the ignoring of like charges by a grand jury,
and similar adjudications, ^lvq prima foots evidence of the want
of probable cause, sufficient to cast upon the opposite party
the burden of proving the contrary.^ On the other hand the
waiving of a preliminary examination,' the disagreement of a
jury, their hesitation in finding a verdict of acquittal,' requir-
ing the accused to enter into a recognizance by an examining
magistrate,^ the finding of an indictment by a grand jury,
have been held to be prima facie evidence of the existence of
probable cause.'
Application op thb law, —
(1) Disagreement of jury — Evidence ofprobahJe cause.
In an action for malicious prosecution it was stated in the petition that
the defendants caused the plaintiff to be indicted for the crime of grand
larceny, and that in so doing they acted maliciously and without probable
cause, and that they conspired together for the purpose aforesaid ; that
said plaintiff had been acquitted of said charge. The defendants pleaded
a general denial. Trial by jury and judgment for the plaintiff, and defend-
ants appealed.
seem preposterous to say that his 75 Me., 108 (1888); Griffis v. Sellars,
discharge is jt>rtma/aote evidence of 2 Dev. & B. (N. C.)> 492; 41 Am.
a want of probable cause. The bet- Dec, 422 (1837); Jones v. Finch, 84
ter and more reasonable doctrine is Va., 204 (1887); Woraac v. Circle, 83
that the discharge of the examining Gratt. (Va.), 847(1879); 2 Greenleafa
magistrate is not prima fade evi- Et., g 455; 2 Starkie's Ev., 494; 3
denceof awant of probable cause, Phillips' Ev., 296; 14 Am. & Eng.
and it should in no case be so re- Ency. of Law, (57 (1891) ; Moffatt v.
garded. As a facti it is proper to^ Fisher, 47 Iowa, 473 (1877).
to the jury as tending to show an * Van Siokle v. Brown, 68 Mo., 627
end of the prosecution, but no such (1878).
inference unfavorable to the accuser 'Johnson v. Miller et al., 68 Iowa,
can legally be drawn from it. See 529 (1884).
Stone V. Crocker, 24 Pick., 81,88, *Womac v. Circle, 29 Gratt (Va.),
qucere (1831); Scott ▼. Simpson, 1 847 (1879)-, Diemer ▼. Berber, 75-
Sandf., 601 (1848); Smith ▼. Ege, 52 Cal., 287 (1888).
Penn. St., 419 (1866); Roes v. Innis, > Garrard v. Willett, 4 J. J. Marsh.
26 111., 259(1861). (Ky.), 628 (1830); Peck v. Choteau,
1 Sbarpe v. Johnston, 76 Mo., 660 91 Mo., 188 (1886). Contra, Motis t-
(1882); Sapping v. Watson, 50 Mo., Bates, 80 Ala., 382 (1886). SeeCres-
83 (1872); Vinal v. Core et al., 18 cent City, etc., Ca v. Butchers'
"W. Va., 1 (1881); Frost v. Holland, Union, etc., Ck)., 120 U. S., 141 (1886X
rSOBABLE CAUSE. 291
The plaintiff was twice tried on the indictment. On the first trial the
jury were unable to agree on a verdict, and were discharged. The defend-
ants sought to introduce in evidence the record of such trial, which showed
that the jury retired to consider as to their verdict on the 6lh day of May,
and, being unable to agree, they were discharged the next day. Upon the
objection of the plaintiff this evidence was excluded.
In discussing this question Seevers, J., said : " It is insisted by counsel
for the defendants the evidence sought to be introduced was evidence of
probable cause, and therefore the court erred in excluding it. It has been
held that a conviction before a justice of the peace on a criminal charge,
and upon appeal there was an acquittal, is conclusive evidence of prob-
able cause. Whitney v. Peckham, 15 Mass., 343; Witham v. Go wen, 14
Me., 86:^. In Bacon v. Towne, 4 Cush., 217, it is said the authority of the
first case has been doubted in Burt v. Place, 4 Wend., 591, and that, if the
conviction before the justice is regarded ' as evidence of probable cause,
we think it is prima fade only, and not conclusive.' And such is the rule
in this state. Moffatt v. Fisher, 47 Iowa, 473. In Garrard v. Willet, 4
J. J. Marsh., 628, it was held 'that the finding by the grand jury [of an
indictment] is prima facie evidence of probable cause.' In Smith v.
McDonald, 3 Esp., 7, it is said if the evidence on the trial of the criminal
charge is such as to cause the jury to hesitate as to an acquittal, it was
evidence of probable cause. In the case at bar the jury were unable to
agree as to the innocence or guilt of the defendant. It follows, of course^
that the jury, or some of them, must have believed the plaintiff to be
guilty. The fact that he was acquitted by another jury cannot affect the
result which must necessarily follow, because the first jury failed to ac-
quit. We think the evidence offered was admissible, because it tended to
show probable cause. It was not conclusive, and, like any other prima
facie evidence, was subject to be explained. The question is not whether
the plaintiff was guilty, but whether the defendants had reasonable cause
to so believe. If the finding of an indictment is evidence of probable cause,
or the evidence on the trial of the criminal charge is such as to cause the
jury to hesitate, is evidence of probable cause, it seems to us the inability
of the jury to agree must have the same effect. The evidence offered was
therefore admissible." The judgment is reversed. Johnson v. Miller, OS-
Iowa, 620; 17 N. W. Rep., 84 (1888).
(2) A conviction before a magistrate reversed on appedL
Phillips brought an action for malicious prosecution against the village
of Kalamazoo. In his declaration he alleged that the defendant wrong-
fully and maliciously caused him to be prosecuted and arrested for the vio-
lation of a village ordinance prohibiting peddling without a license in the
village ; that he was tried before a justice of the peace and convicted, and
on appeal to the circuit court he was acquitted and discharged. The dec-
laration contained no averment that his conviction was procured by any
fraud, perjury or subornation, and he does not show that his case comes
within any of the exceptions applicable to cases where a conviction has
been had. Hence, by his own showing, there was not a want of probable
292 FBOBABLE GAUSS.
cause. The defendant demurred. The plaintiff joined in the demurrer.
The judge sustained the demurrer and rendered judgment for the defend-
ant.
On appeal, in the supreme court, Champlin, J., said : *' As a general rule*
a conviction before a magistrate is a bar to a malicious prosecution, and if
tlie party complaining relies on an exception to it, he must allege tho facts
which create the exception. Cooley, Torts, 185. No exception to the op-
eration of the rule is claimed in this case, and the judgment is affirmed.**
Phillips V. Village of Kalamazoo, 58 Mich., 83; 18 N. W. Rep., 547.
(3) A revei*8ed decree evidence of probable cause — Malicious prosecution of
a civil suit will lie in what cases.
The Odorless Excavating Company filed a bill, in the United States cir-
cuit court for the district of Maryland, against Clements for the infringe-
ment of re-issued letters patent granted to Lewis R. Keizer, for an apparatus
Msed in the cleaning and emptying of privies, the original patent having
been granted to Henry C. Bull. In his answer Clements denied that Bull
was the inventor of apparatus described in the original patent, and charged
that the re-issued letters patent granted to Keizer were not for the same in-
vention described in the original patent, but for other and different inven-
tions not known to Bull at the time the original patent was granted ; and
further, that the said re-issued letters patent >%ere fraudulently obtained.
«nd that the specifications and claims were fraudulently enlarged for the
purpose of including other and subsequent inventions. He also claimed
that the apparatus or machine used by him was constructed in accordance
with letters patent granted to Samuel R. Scharf and Jerome Bradley. The
case was heard on bill, answer and proof, and the circuit court, being of
opinion that the machine used by Clements was an infringement of the re-
issued lettv rs patent granted to Keizer, enjoined him from making, using
or vending said machine containing the inventions and improvements de-
scribed in said re-issued letters patent On appeal to the supreme court of
the United States, the decree below was revei*sed on the ground that the
improvement claimed in the re-issued letters patent granted to Keizer was
but an expansion of the Scharf and Bradley improvements. Clements
then brought an action against the Odorless Excavating Apparatus Com-
pany to recover damages for having instituted the suit in the United States
district court maliciously and without probable cause. On the trial it wrs
held that the decree of the district court, though reversed, was conclusive
evidence of probable cause. He took the case to the court of appeals.
In delivering the opinion affirming the judgment of the court below,
Robinson, J., said: ''Whatever may be said of the earlier decisions, it is
•quite well settled that an action will lie in some cases for the malicious
prosecution of a civil suit without probable or reasonable cause, although
there is some conflict as to the cases embraced within the rule. Such suits
are not, however, encouraged, because the law recognizes the rights of
•every one to sue for that which he honestly believes to be his own, and
the payment of costs incident to the failure to maintain the suit is ordina-
rily considered a sufficient penalty. In McNamee v. Minke, 49 Md., 122.
we had occasion to consider the law in regard to such actions, and the
PSOBA^LE CAUSE. 297
court said : ' When it has been attempted to hold a party liable for the
prosecution of a civil proceeding, it has generally been in cases where
there has been an alleged malicious arrest of the person, as in the case of
Turner v. Walker, 8 Gill & J., 877, or a groundless seizure of property, or
the false and malicious placing the plaintiff in bankruptcy, or the like.*
Now, if it be conceded that a bill in equity by the appellee to restrain the
appellant from using an apparatus or machine, on the ground that it was
an infringement of letters patent issued to the plaintiff, comes within the
rule thus laid down (without, however, so deciding), it is sufficient to say
there was no evidence in this case to sustain the action. To entitle the ap-
X)ellant to recover, he was bound to offer evidence from which a jury could
reasonably find that the bill for an injunction was instituted by the appel-
lee, not only maliciously, but without probable cause.
** Now, what was the evidence relied on to support the action? In the
first place, the appellant offered the record of the appeal from the decree
of the district court, and the decree of the supreme court reversing the
same. By this record it appears that the injunction proceeding was heard
by the district court on proof taken by both sides, and, after argument by
counsel of the respective parties, that court was of opinion that the appa-
ratus used by the appellant was an infringement of the patent-rights of the
appellee. It was the deliberate judgment of a court of competent juris-
diction that there was not only a probable cause for filing the bill for in-
junction, but that the appellee was entitled to the relief prayed. A judg-
ment thus rendered ought to be considered conclusive as to the question of
probable cause, although it was reversed on appeal by the supreme court ;:
otherwise, in every case of reversal, an action would lie for the institution
of the original suit." Judgment affirmed. Clements v. Odorless Excavat-
ing Apparatus Ck)., 67 Md., 461, 605; 10 AtL Rep., 443 (1887).
(4) Signs displayed, when evidence of probable cause to believe owner-
ship, etc
It appeared that certain beer pumps in the custody of Holden were at-
tached as the property of Wilder and were delivered by the officer to Hol-
den for safe-keeping. In the absence of Holden they were taken away by
Wilder and a person who claimed- them as his property. Holden there-
upon made a complaint against Wilder, charging him with stealing the
pumps. In an action brought by Wilder against Holden for a malicious
prosecution, Holden gave in evidence a card which had been posted up at
his place of business, and had been seen there by Wilder, if not put up by
him, advertising that Wilder made and sold beer pumps. It was held that
this card, though inadmissible as evidence of the ownership of the pumps
attached, was nevertheless evidence of probable cause for making the com-
plaint, it having some tendency, though very slight, to induce the defend-
ant to believe that the plaintiff was the owner. Wilder v. Holden, 41 Mass.,
8 (1833).
§ 20. Acqnittal of the accused not OTidence of a want of
probable cause — The contrary rule stated by Walker, J. — To
recover in cases for malicious prosecution of criminal com-
t-
'^i . PBOBABLR CAUBB.
plaints there must be malice on the part of the person starting'
the prosecution, and a want of probable cause for believing
the accused guilty. A want of probable cause is not shown by
the acquittal of the accused. If such were the rule, but few,
if any, would dare make an effort to enforce the criminal
laws of a state. To do so would involve the prosecuting wit-
ness, wherever the prosecution failed, in vexatious litigation
and loss, and none could be expected to incur such hazards.
Prosecuting witnesses must be protected where they act in
good faith on facts and circumstances which are such as induce
a belief of guilt in the mind of a reasonable person. This has
always been the rule of the law. The issue for the jury or
the court to try is not the guilt of the plaintiff. If the de-
fendant act in good faith on evidence, whether true or false,
which is suflScient to create a reasonable belief that the ac-
cused is guilty of the offense, he is protected.^
DiGBST OP BECBNT OASES. —
(t) Evidence in general.
(a) It is not incumbent upon the plaintiff to f^ive in evidence aU the tea*
timouy introduced before the magistrate, in order that the court may de-
termine the question of the existence of probable cause. Bacon ▼. Towne,
4 Cush. (Mass.), 217.
(b) The official stenographer of the court may read from his notes the
testimony of a witness taken at the trial of an indictment, and who is be-
yond the jurisdiction of the trial court, for the purpose of showing want of
probable cause. Brown v. Willoughly, 5 Ck>lo., 1.
(c) By-standers who heard the evidence before the examining magistrate
are not allowed to rehearse what that evidence was, because their testi-
mony would then be secondary and hearsay. The witnesses themselves
should be called to testify as to their evidence before the magistrate.
Richards v. Foulke, 3 Ohio, 52. But see €k)odrich v. Warner, 21 Conn., 482.
(d) Where the judgment of the magistrate by whom the plaintiff has
been bound over is relied upon as evidence of probable cause, it cannot be
impeached by evidence that he acted unfairly and improperly in the ex-
amination. Bacon v. Towne, 4 Cush. (Mass.), 217.
{e) An action for malicious prosecution will not lie if plaintiff was con-
victed before a justice of the peace, but was discharged on appeal, unless
the conviction was procured by fraud, perjury or subornation, or was other-
wise exceptional. Phillips v. Kalamazoo, 53 Mich., 38.
(/) It cannot be shown for the purpose of proving probable cause that the
grand jury deliberated some time before agreeing to return no bill and
that eight of the jury were in favor of finding an indictment Sootten v.
Longfellow, 40 Ind., 28.
1 Walker, J., in Anderson v. Friend, 85 HI, 186 (1877).
FBOBABLB 0AU8B. 295
(2) Sufficient evidence to he submitted to a jury,
<a) The preeuinption of probable cause, which ordinarily prevails when
it appears on the face of a petition for malicioas prosecution that plaintiff
^^H8 convicted in the trial court, but judgment reversed on appeal, is re*
butted by further allegations that the conviction was procured by fraud
in depriving plaintiff of the testimony of his principal witness by joining
him as oo*indictee. Boogher v. Hough (99 Mo. 183), 12 S. W. Bep., 524.
(6) A witness testified that one of the defendants, on the morniug after
the fire, said, <* We've been robbed, ** and then said, "We have not been
robbed," and that defendant asked witness to conceal some dies worth
^00 to $300 until after the insurance men had been there. Witness also
testified that this defendant told him, a few days aft«^rwards, that they
had made $3,000 by the fire ; that a detective had worked plaintiff, and if
there was money to put plaintiff in jail he would go there; that he wished
the detective had worked another person, as he would have been an easier
man to have worked ; and that, just before the trial of plaintiff on the in-
dictment, this defendant twice offered witness $25 to go away and not
testify for plaintiff. Eeld^ that the evidence as to this defendant entitled
plaintiff to go to tho jury on the question of probable cause. Cheever ▼•
Sweet, 151 Mass., 186; 23 N. E. Rep., 831.
(c) The A. Ck>mpany, having by its charter a monopoly of the slaughter-
ing business in and around New Orleans, brought suit in the United States
circuit court for Louisiana against the B. Ck>mpany, to restrain it from
carrying on the same business, which the latter claimed a right to do under
the provisions of the constitution of Louisiana of 1879, sections 248, 258^
vesting the regulation of the business in municipalities, and abolishing the
monopoly features thereof. The circuit court gave judgment in favor of
the A. Company, but. upon appeal to the United States supreme court,
this judgment was reversed. Held, that the judgment of the circuit court,
although afterwards reversed, M^as sufficient evidence of probable cause
for the suit to prevent the maintenance of an action for malicious prosecu-
tion on account thereof, brought by the B. Company against the A. Com-
pany in the state courts ; and that the fact that, before the beginning of
the suit in the United States circuit court, the state courts had decided
Against the A. Company in a suit brought by it against the city of New
Orleans to restrain the city from proceeding under the new constitutional
provisions, did not alter the case. Crescent City, eta, Co. v. Butchers'
Union, eta, Co., 120 U. S., 141; 7 S. Ct. Bep., 472 (1886).
(8) Prima facie evidence,
•
<a) The jury were unable to agree as to the g^ilt or innocence of the de-
fendant. It followed, of course, that the jury or some of them must have
believed the plaintiff to have been guilty. The fact that he was acquitted
by another jury cannot affect the result which must necessarily follow be-
cause the first jury failed to convict. '* We think the evidence offered was
admissible because it tended to show probable cause. It was not conclusive,
but, like any other TpHmafade evidence, was subject to be explained. The
question was not whether the plaintiff was guilty, but whether the de»
296 F&OBABLB CACSB.
f endant had reasonable cause to so believe. If the finding of an indict*
ment is evidence of probable cause, or the evidence on the trial of a crimi-
nal charge is such as to cause the jury to hesitate as to an acquittal, it is
evidence of probable cause. It seems to us that the inability of the jury to
agree must have the same effect." Johnson v. Miller, 63 Iowa, 529; 50
Am. Rep., 758.
(b) The fact that the judge held the plaintiff to bail, and refused to dis-
charge him on the accusation made by defendant and former conspirators,
or that plaintiff was indicted by a grand jury for the offense they charged
against him, was not conclusive evidence of probable cause. Graham ▼•
Noble, 18 Serg. & R. (Pa.), 333; Religh v. Cook, 60 Tex., 488; Bacon v.
Towne, 4 Cush. (Mass.), 217; Rlcord v. Central Paa R. Co., 15 Nev., 167.
(c) The decision of a magistrate that there is sufficient evidence to war-
rant requiring the accused to enter into recognizance is at least prima
facie evidence of probable cause, unless such decision has been procured by
evidence known to the complainant to be false. Womac ▼. Circle, 29
Oratt (Va.), 193; Diemer ▼. Herber, 75 Cal., 287.
(d) In an action for malicious prosecution, the weak presumption thai
exists in every case, that every public prosecution is founded on probable
cause, is strengthened by the proof that the plaintiff had, after an examina-
tion by a justice, been committed to jail to answer an indictment when
found, but it may be rebutted by other testimony showing that there was
no probable cause for the prosecution. Hale v. Boylen, 22 W. Va., 284
(e) A verdict of guilty is strong prima facie evidence of probable cause,
but is capable of being rebutted. Jones v. Kirksey, 10 Ala., 889; Payson
T. Caswell, 22 Me., 212; Herman v. Brookerhoff, 8 Watts (Pa.), 240.
if) The plaintiff won some money from defendant on a wager, and be-
cause he did not return such money he was arrested at defendant's instance
and committed on a charge of larceny; an information charging plaintiff
with such crime was dismissed for want of evidence. It was held that the
commitment was only prima facie evidence of probable cause and was
fully rebutted by other evidence. Diemer v. Herber, 75 Cal., 287.
§21. Judgments and decrees of trial courts — How far
eonclusiye evidence of probable cause — BcTiew of the au-
thorities and discussion of the subject. — How much weight
as proof of probable cause shall be attributed to the judgment
of the court in the original action, especially where subse-
quently reversed, may admit of some question.^ Butiin, C. J.,
said that probable cause is judicially ascertained by the ver-
dict of the jury and judgment of the court thereon, although
upon an appeal a contrary verdict and judgment be given in
a higher court.' And in Massachusetts, such a judgment was
1 Crescent City L. S., etc., Co. v. 2 Griffiths v. SeUars, 4 Dev. & R
Butchers' Union, etc., Co., 120 U. S., L., 177 (1889).
141 (1886>
PROBABLE OAUSB. 29T
held to be conclusive in favor of the existence of probable^
causeJ In Penns3'lvania, Chief Justice Gibson held the same-
way.^ The Massachusetts decision was questioned by tho^
supreme court of the state of New York, where Marcy, J.,*
delivering the opinion, said that the decision rested entirely
upon the decision of the English court of common pleas.^
'^The English case was well considered; it was twice argued^
and the opinion given after mature advisement. It is to be^
considered as a highly respectable authority for what it pro-
fesses to establish. The entire view of the court in the case*
appears to be presented in the last sentence of the opinion de-
livered by Chief Justice Lee. He says: 'Upon the whole, we-
think the plaintiff has shown by his declaration that the pros-
ecution was not malicious, because the subcommissioners gave
judgment for the defendant, and therefore we cannot infer
any malice in him.' It is nowhere said in the case that under
no circumstances could malice be inferred if any inferior tri-
bunal had given judgment in favor of the prosecutor of a suit
said to be malicious.
^'Such is not the necessary inference; and Baron Eyre, of the
Exchequer,* thought that the expressions of the chief justice^
should have been a little varied, and if varied as he thought
they ought to be, they would in my judgment seem to repel
the inference that the condemnation of the subcommissioners
was conclusive upon the question of probable cause. He wa»
of the opinion that, instead of saying as Chief Justice Lee
did, that ' We cannot infer malice,' it would have been more-
correct to say, * We will infer that there was probable cause for
prosecuting the brandy to condemnation.' And when this
case' came before Lords Mansfield and Loughborough on a
writ of error it was viewed in much the same light. They
say that whether the circumstances alleged to show probable
cause are true and exist is a matter of fact; but whether, sup-
posing them true, they amount to probable cause, is a question
1 Whitney ▼. Peckham, 15 Mass., ^Reynolds v. Kennedy, 1 Wile.,
243(1818). 282(1753).
2 Herman ▼. Brookerhoff, 8 Watts > Johnstone v. Sutton, 1 T. R, 50B»
(Penn.). 240 (1839). ( ).
• Burt V. Place, 4 Wend., 599 (1830).
^9S PROBABLE 0AU8B.
<^f law." ' The efifect of these English authorities as laid
<io\vn by Justice Marcy is as follows: " That if it appears by
the plaintiff's own declaration that the prosecution he charges
to have been malicious was before a tribunal having jurisdio-
tion, and was there decided in favor of the plaintiff in that
court, nothing appearing to fix on him any unfair means of
•conducting the suit, the court will regard the judgment in
favor of the prosecution satisfactory evidence of probable
cause." * In the New York case the judgment relied upon by
the defendant was held by Justice Marcy not to be conclu-
sive, and he gave bis reasons as follows: *' Though the plaint-
iff admits in his declaration that the suits instituted before the
magistrate by the defendant were decided against him, he
-suflQciently counteracts the effect of that admission by alleging
^ that the defendant, well knowing that he had no cause of
action, and that the plaintiff had a full defense, prevented the
plaintiff from procuring the necessary evidence to make out
that defense, by causing him to be detained a prisoner until
the judgments were obtained,' and alleging that the imprison-
ment was for the very purpose of preventing a defense to the
-action." '
Commenting upon the New York case the court of apgeals
of Kentucky held: ''The principle settled in that case we
understand to be that such a judgment will not in every pos-
sible state of the case be deemed conclusive of the question of
probable cause; but that, like judgments in other cases, its
-effect may be destroyed by showing that it was procured by
fraud or other undue means." ^ The limitations upon the
general principle declared by Justice Marcy were followed by
the supreme court of Maine,^ and were subsequently referred
to by the same court as follows: ''In these two cases'* we
have instances of exceptions to the general rule, indicative of
1 Johnstone v. Sutton, 1 T. R., 513 « Spring ▼. Besore, 12 R M<m«, 551
< ). (1851).
SBurtv. Place, 4 Wend., 599(1880); •Withamv. Gowan, U He., 803
Orescent City L. S., etc., Co. ▼. (1887).
Butchers' Union Co., 130 U.S., 141 •Burt ▼• Place, 4 Wend., 599
<188G). (1880); Witham ▼. Qowen, U Me.,
> Burt V. Place, 4 Wend. , 599 (1880). 863 (1887).
PBOUABLB CAU8S. 299
the general nature of the characteristics which might be ex»
pected to attend them ; bat the rule itself remains unimpaired.
If there be a conviction before a magistrate having jarisdic-
ttion of the subject-matter not obtained by undue means, it will
be conclusive evidence of proble cause.'* * The propriety of
this limitation of the rule seems to have been admitted in
Massachusetts in one case,^ though in later cases the rule
formerly established seems to have been reiterated.'
§22. The correct rule.— "The correct doctrine on the
subject is, in our opinion, that the decree or judgment in favor
of the plaintiff, although it be afterwards reversed, is, in cases
^vhere the parties have appeared and proof has been heard on
both sides, conclusive evidence of probable cause, unless other
matters be relied upon to impeach the judgment or decree
and show that it was obtained by fraud; and in such cases it
is indispensable that such matter should be alleged in the
plaintiff's declaration, for unless it be done, as the other facts
which have to be stated establish the existence of probable
•cause, the declaration is suicidal. The plaintiff's declaration
will itself always furnish evidence of probable cause when it
states, as it must do, the proceedings that have taken place in
the suit alleged to be malicious, and shows that a judgment
or decree has been rendered against the plaintiff. To coun-
teract the effect of the judgment or decree and the legal de-
duction of probable cause, it is incumbent upon him to make
it appear in his declaration that such judgment or decree was
unfairly obtained, and the results of acts of malice, fraud and
oppression on the part of the defendant, designed and having
the effect to deprive him of the opportunity and necessary
means to have defeated the suit and obtained a judgment in
his favor." ^ This is the rule as laid down by the court of ap-
pealsof Kentucky, and which has recently received theapproval
of the supreme court of the United States.^ It seems to reo-
1 Pajson ▼. CasweU, 22 Me., 212 « Spring ▼. Besore, 12 B. Mon., 551
<1842). (1851).
3 Bacon ▼• Towne, 4 Gush., 217 ^ Crescent City L. S., etc, Co. ▼•
<1649). Butchers' Union, etc., Co., 120 U. S»,
* Whitney v. Peckham, 15 Mass., 141 (1886).
248 (1818); Parker ▼. Huntington, 7
Gray, 86 (1856).
300 PROBABLE OAUSB.
oncilethe apparent contradiction in the authorities, and states
the rule which we think to be well grounded in reason, fair
and just to both parties, and consistent with the principle on
which the action for malicious prosecution is founded.
Application of thb law. —
(1) Judgments of trial courts, how far conclusive evidence of probable eause^
In the case of Burt against Place for malicious prosecution, on the trial
of the cause the following facts were shown on the part of the plaintiff :
June 18, 1826, the defendant obtained three warrants to be issued against
the plaintiff by a justice of the peace of Oswego county, on which the-
plaintiff was arrested and brought before the justice July 2^, 1826. The
defendant declared against the plaintiff in three several causes: in one for
work, labor and services ; in another for a yoke of oxen sold and delivered ;
and in the; third for a horse sold. The plaintiff pleaded the general issue
in each suit, and asked for an adjournment ; but not being able to give
bail for his appearance, the adjournment was refused and the cases were
tried, and a judgment rendered in each suit in favor of the defendant
for $50 damages, besides costs of. suit. Immediately after obtaining those
judgments the defendant obtained another warrant against ihe plaintiff,
which was returned forthwith, and another judgment rendered against the
plaintiff for $9.96 damages, being for $8 money lent and interest thereon,
and an execution issued thereon on the same day, on which the plaintiff
was arrested and confined in the jail of the county of Oswego. The plaint-
iff appealed from the judgments rendered against him by the justice of the
common pleas of Oswego, on which appeals judgments were rendered for
the plaintiff in this cause.
To show a want of probable cause for the suits prosecuted by the defend*
ant, it was proved that in 1822, the plaintiff having a law-suit with his
brother, the defendant induced the plaintiff to convey to him an undivided
third of a tavern stand which had descended to him from his father;
the defendant agreed to allow the plaintiff $800 for the property, $250 to
be secured by notes, and $50 to be allowed the defendant for assisting the
plaintiff in his contest with his brother, and a deed was accordingly exe-
cuted by the plaintiff to the defendant In December, 1822, the defendant
sold the land conveyed to him by the plaintiff to one Addington for $250,
whereupon the plaintiff brought suit against the defendant to recover the
price of the land, which was tried at Whitestown in March, 1826, on the
trial of which cause the defendant insisted that he had paid the plaintiff for
the land in a horse, a yoke of oxen, in services in his suit with his brother,
and in cash the sum of $8. After evidence was adduced on both sides in
relation to the defense set up, the defense was withdrawn as to all but the
$8, and the defendant insisted that the plaintiff was not entitled to recover,
on the ground that the contract between the parties was void for mainte-
nance. A verdict was taken for the plaintiff for the price of the land, de-
ducting the $8, subject to the opinion of this court on the question of main-
tenance,, and this court decided that the objection was weU taken^ and
PROBABLE CAUSE. 801
that the plaintiff was not entitled to recover. Further to show the want
of probable cause it was proved that the plaintiff was a very poor man and
had never been known to be the owner of a yoke of oxen or a horse.
To prove malice it was shown that the defendant, after obtaining the
warrants issued in June, 1826, put them in the hands of a constable of
Oswego county, telling him that the plaintiff was at work in Onondaga
county, and hired him to decoy the plaintiff into Oswego county, so that
he might arrest him. The constable went in pursuit of the plaintiff, but
he had left the place. About two months afterwards the plaintiff hap-
pened in Oswego county and was arrested. When the defendant put the
warrant into the hands of the constable he told him* that the plaintiff had
^ot a verdict against him at Whitestown for about $800, and he wanted to
get some judgment to offset against the verdict; and if the plaintiff would
give up the verdict he would let him go clear. When the plaintiff was
arrested on the warrants, the defendant retained an attorney so as to pre-
vent him being employed by the plaintiff, telling the attorney: **I have a
fellow coming that I am going to train, and I want to buy you to hold
your tongue;'* adding that if he did not engage for the plaintiff the latter
would not be able to obtain counsel, as there was no one else he could get,
he having employed the other attorneys in the place; and telling him
further, "He has got a judgment against me for $275, and now Tve got
him, and Til train him till he gives up that judgment." On the next day
the attorney asked him if he had obtained his judgments, and if they were
for the same property which he set off on the former trial, to which he an-
swered : " If it is, that is my business." It was further proved that while
the plaintiff was in jail on the execution issued against him, the defendant
cabsed a summons to be served on him upon Tvhich he obtained another
judgment against the plaintiff for $50 for t)ie same yoke of oxen for which
one of his judgments obtained in July was rendered. The plaintiff having
rested, the defendant moved for a nonsuit on the ground that the judg-
ments obtained by him before the justice were conclusive evidence of
probable cause. The judge decided that the judgments were prima facie,
but not conclusive, evidence of probable cause, denied the motion, but re:
served the question for the decision of this court.
The jury under the direction of the judge found a verdict for the plaint-
iff for $825, subject to the opinion of this court on the points reserved. In
the supreme court the judgment was confirmed for the plaintiff. Marcy, J. ,
after reviewing the English authorities, said: Though the plaintiff ad-
mits in his declaration that the suits instituted before the magistrate by the
defendant were decided against him, he sufficiently countervails the effect
of that admission by alleging that the defendant, well knowing that he
had no cause of action and that the t)laintiff had a full defense, prevented
him from procuring the necessary evidence to make out that defense by
causing him to be detained as a prisoner until the judgments were ob-
tained, and by alleging that the imprisonment was for the very purpose of
preventing a defense to the actions. We are asked by the defendant to
look at the declaration and to say there was evidence of probable cause^
because it appears therein that the magistrate gave judgments in his favor,
when the plaintiff, at the same time that he confesses tliat fact, also ai-
S03 PBOBABLB CAUSE.
leges it to be the result of the malicious, vexatious and oppressive acts of
the defendant in designedly depriving him of the opportunity and neces-
sary means to defeat the unfounded prosecution. When the court look
at the declaration for evidence of want of probable cause, they must assume
that the whole of it will or can be proved. Taking all the allegations in
the deolaration to be true, I cannot believe we are required or wart anted
to infer that there was probable cause for the suits that were instituted by
the defendant before the magistrate.
If we look beyond the declaration to the evidence we see an iniquitous
abusH of the process of the law to accomplish an illegal purpose. When
the warrants were issued against the plaintiff he was in Onondaga county,
and the defendant engaged the constable co decoy him within Oswego
county, so that he might be arrested. He was taken a great distance from
his friends, before a magistrate, where, by reason of being a stranger, he
was unable to procure the requisite bail to entitle him to an adjournment-
After the arrest, the defendant went to a person on whom he supposed the
plaintiff would be likely to call for assistance, and attempted to purchase
his silence, at the same time confessing that he had got the plaintiff and
intended to train him until he gave up the verdict which had been obtained
in the supreme court. After stating that he had recovered judgments, and
for what cause, he observed in answer to a question if they were not ob.
tained for the same property that had been set off in the former suit, " If
it is, that is my business.*' It is proper to remark that the defendant in
this conversation did complain of the plaintiff*s conduct, alleging that he
had recovered for the land, and at the same time wanted to keep what he
had paid him for it. Immediately after judgments were rendered against
the plaintiff on the three warrants on which he was first brought before
the magistrate, a fourth warrant was issued, a judgment obtained for
money paid, and the plaintiff committed to jail on an execution issued
thereon. This judgment was obtained on a claim for money paid, which
was allowed to the defendant as a set-off on the trial of the cause in which
the plaintiff obtained a verdict against him at Whitestown. There is no
substantial allegation in the declaration which was not proved. The evi-
dence exhibited a case of flagrant oppression. If the declaration does not
show want of probable cause, there is abundant proof of the want of it in
the testimony. Judgment for the plaintiff. Burt v. Place, 4 Wend., 591
(1830). Cited in 120 U. S., 141; 10 Minn., 360; 4 Duer, 656; 12 B. Mon.,
551, 555; 14 Me., 862; 22 Me.. 212, 226; 2 Abb. Pr.. 4; 1 Abb. Pr., 865; 16
How. Pr., 262; 41 Barb., 299; 40 Barb., 455; 14 Hun, 463; 11 Hun, 267;
24 Wend., 15.
(2) Judgment obtained by ex parte proceedings not eonduaive evidence of
probable cause.
In Bump's absence Betts obtained an attachment against his property on
the allegation that he had departed from the country in which he had re'
sided with the intent to defraud his creditors. Betts obtained a judgment
against him in the proceedings then commenced, sued out an execution and
sold bis property. Afterwards Bump brought an action of malicious prose-
cution against Betts. On the trial it was shown that the plaintiff had paid
PBOBABLE OAUBB. 80$
the demand on which judgment was had in the attachment proceedings-
previous to the commencement of that suit. The judge ruled that the-
judgment, remaining unreversed, rebutted the presumption of a want of
probable cause arising from the fact of payment ; that there was no mal—
joe shown. A nonsuit was entered and a motion to set it aside made. In
delivering the opinion of the supreme court Nelsop, C. J., said: *' This ac-
tion lies against any person who maliciously and without probable cause-
prosecutes another, whereby the party prosecuted sustains an injury,
either in person, property or reputation.! . . . Where the malicious-
prosecution complained of arises out of proceedings on attachment in the
absence of the party defendant, in which no opportunity is afforded him ta
defend the suit, a judgment against him, under such circumstances, can-
not be deemed conclusive evidence of probable cause or want of malice,^
as in cases of personal service of process." New trial granted. Bump v»
Betts. 19 Wend., 421 (1838). Cited in 20 Hun, 560; 56 How. Pr., 320; 1
Leg. Obs., 330; 56 111., 79; 66 III., 842; 8 Am. Rep., 679; 55 111., 56; 11
Am. Rep., 13; 67 III, 294.
§ 22. Testimony before the magistrate on a preliminary
examination competent on the question of probable cause. —
Probable cause is such a state of facts in the mind of the-
prosecutor as would lead a man of ordinary caution and pru-
dence to believe, or entertain an honest and strong suspicion,
that the person arrested is guilty. The matters testified to
on an examination may have been, and generally are, very
influential in raising such suspicion or belief, and are there-
fore competent evidence to show the ground the prosecutor
had, or cause to believe whether the charge was true or not^
They are therefore matters material to the issue, and may he
proved by any witness who can testify to them, as well as by
those who testified at the examination. The persons who--
were present at the examination before the justice may bo
dead, absent or insane; they may have forgotten, or refuse to
testify, or even deny them. It may not be the less true that
they did testify; and if such testimony was of a character to-
induce a belief or strong suspicion, in the mind of a reason-
able man, of the guilt of the accused of the crime charged,
they have a direct bearing on the question of probable cause,.
or want of the same, in actions for malicious prosecution.^
1 Citing 1 Selw., 806; Saund. PL 288 (1849); 2 Greenl. Ev., § 454;.
& Ev., 651; 2 Chitty's Pleading, French v. Smith, 4 Vt., 863 (1827)-,.
248. n. R; 12 Mod., 208; 1 Salk., 12; BuH. N. P., 18, 14; Steph. N. P.,.
1 T. R., 498, 551. 2282, 2284.
* Bacon v. Towne et al., 58 Mass.,
:S0^ FBOBABLE CAUSE.
«
Probable cause does not depend on the actual state of the case
in point of fact, but upon the state of the mind of the prose*
<$utor; upon the reasonable and honest belief of the party
•commencing the action.^ The only case I have been able to
;find in the books which seems to countenance a different rule
was decided by the supreme court of New York in 1830. It
'Was a case of gross fraud and oppression under the forms of
Jaw, practiced by the defendant himself, and in which there
was abundant evidence of malice, groundlessness and fraudu-
lent design in the suits complained of as malicious.'
§ 24. Character — Its effect on* the question of probable
^cause. — Vindication of character is not the object of a suit
for false imprisonment, and therefore evidence in relation to
•character is in general immaterial. It is only competent in
actions of slander, seduction, and the like, where character is
ciecessarilv involved in the nature of the action.* It is some-
times admitted in actions for malicious prosecution, where the
<]ue8tion of probable cause arises, for the purpose of showing
the character of the plaintiff to have been so notoriously bad
that a cautious and reasonable man might more readily believe
Aim guilty of the crime with which he was charged.*
§ 2 5. Plaintiffs bad character — Competent to rebut want
•4)f probable cause. — Evidence of the general bad reputation
of the plaintiff in actions for malicious prosecution of criminal
charges is always competent to rebut the want of probable
causa as well as in mitigation of damages. The burden of
showing a want of probable cause is upon the plaintiff. The
same facts which would raise a strong suspicion in the mind
of a cautious and reasonable man against a person of noto-
riously bad character for honesty and integrity would make a
-slighter impression if they tended to throw a charge of guilt
upon a man of good reputation.*
I James v. Phelps, 11 Ad. & El., (1852); Vinal ▼. Gore et aL, 18
AiSS, 489 ( ); Bacon v. Towne, 68 W. Va., 1 (1881).
Kasa., 288(1849). « Bacon y. Towne, 58 Mass., 240
s Burt V. Place, 4 Wend. , 591 (1880). (1849) ; Rodriguez t. Tadmire, 2 Esp.,
s Smiths. H7ndman,64Ma8s.,554 721 ( ); Wood t. United States,
<1852); 2 <^eenL fiv., § 269. 16 Pet., 842, 866 (1842); 2 GreenL
4 Smith y. Hyndman, 64 Mass., 554 Ev., § 458. But see Newsman, y.
Carr, 2 Stock., 69.
PROBABLE CAU8B. 305
§ 26. Probable cause — Admission of the existence of. —
In cases where a person voluntaril}^ terminates a suit by satisfy-
ing the demand, where there is no duress of person or property,
it is held that he cannot be admitted to say that the action
was commenced without probable cause.^
The law illustbated. —
(1) Settlement of suit by paying demand.
The defendant gave his note to the plaintiff, payable to his own order,
and indorsed by him. The plaintiff negotiated the note, and received and
retained the money procured upon it. When the note became due the de-
fendant paid it, and afterwards sued the plaintiff to recover from him the
money paid to take up the note, joining with a count for money had and
received a coimt in tort for the conversion of the note. The note was
given upon the consideration that the plaintiff would sign a certain com-
position paper releasing his debt against a third person. The note was
delivered on condition that it should not be used, but should be returned,
if the settlement with the debtor was not effected. The settlement was
not carried out, and the composition paper never became operative. After
the giving of the note, and after the composition had been abandoned and
the debtor had gone into insolvency, the plaintiff became satisfied that the
defendant was liable for the debts of the insolvent debtor, and brought an
action against the defendant to recover the amount due from the insolvent
debtor to the plaintiff, as well as a sum due from the defendant to the
plaintiff. The two suits were pending at the same time, and were in-
cluded in one settlement by the parties, by which the defendant paid to
the plaintiff the whole amount of the defendant's own debt and one-half
of the amount due from the insolvent debtor, less the amount claimed by
the defendant in his suit against the plaintiff ; and in that suit judgment
was entered for the defendant against the plaintiff in this suit. Held, in
A suit brought by the plaintiff against the defendant for malicious prose-
<;ution for instituting the suit against him, that the plaintiff having settled
the suit against him by aUowing all that was claimed in it, the undisputed
facts did not show want of probable cause, and that the court properly or-
dered a verdict for defendant.
A party who terminates a suit by paying what is demanded in it, by
being charged with it as an item in account, cannot be admitted to say
that the action was commenced without* probable cause. Sartwell v.
Parker, 141 Mass.. 405; 6 N. E. Rep.. 807 (1886;.
(2) Payment of demand estops plaintiff from saying there was want of
probable cause.
In an action for malicious prosecution it appeared that the defendant
gave his note to the plaintiff, payable to his own order, and indorsed by
him« The plaintiff negotiated the note, and received and retained the
1 Sartwell v, Parker, 141 Mass., 405; 5 N. E. Rep., 807 (1886).
20
306 PROBABLE OAUSB.
money procured upon it. When the note became due, the defendant paid
it, and afterwards sued the plaintiff to recover from him the money paid
to take up the note ; joining with a count for money had and received a
count in tort for the conversion of the note. This action is brought for
malicious prosecution in instituting that suit. The plaintiff must prove
that it was commenced without probable cause, and, as essential to that,
the prosecution was terminated in the plaintiff's favor. The evidence of
the plaintiff tended to show that the note was given upon the considera-
tion that the plaintiff would sign a certain composition paper releasing his
debt against a third person. The evidence of the defendant tended to
prove that the note was delivered on condition that it should not be used,
but should be returned if the settlement with the debtor could not be ef-
fected, and that in fact the settlement was not carried out, and that the
composition paper never became operative, and the giving of the note, and
after the composition deed had been abandoned and the debtor had gone
into insolvency, the plaintiff became satisfied, for reasons not material to
this inquiry, that the defendant was liable for the debts of the insolvent
debtor, and brought an action against the defendant to recover the amount
due from the insolvent debtor to the plaintiff, as well as a sum due from
the defendant to the plaintiff. The two suits were pending at the same
time, and were included in one settlement by the parties, by which the de-
fendant paid to the plaintiff the whole amount of the defendant's own
debt, and one- half of the amount due from the insolvent debtor, less the
amount claimed by the defendant in his suit against the plaintiff, and in
that suit judgment was entered for the defendant against the plaintiff in
this suit. These facts were not contested. On the trial the court ordered
a verdict for the defendant
On exceptions, W. Allen, J., said: " It thus appears that the plaintiff
settled the suit, which he must prove was commenced without probable
cause, by allowing all that was claimed in it. A party who terminates a
suit by paying what is demanded in it, by being charged with it as an
item in account, cannot be admitted to say that the action was commenced
without probable cause. The question whether want of probable cause
appears is solely for the court, except so far as it depends upon disputed
facts, which must be determined by the jury. In this case the facts
claimed by the plaintiff, with the undisputed facts, do not show want of
probable cause, and will not sustain a verdict for the plaintiff, and the
court properly ordered a* verdict for defendant." Sartwell v. Parker, 141
Mass., 405; 5 N. E. Rep., 807 (1886). Citing Stone v. Crocker, 24 Pick., 81.
(3) Waiving examination before the magistrate not an admission of prob-
able cause, etc,
Meyers sued Schoonover for malicious prosecution, the latter having
caused him and two of his infant children to be arrested for the larceny of
a bee hive. Meyers was ill at the time the officer came after him, but he
subsequently appeared before the justice and waived examination and
gave bail for his appearance. The two children were acquitted and dis-
charged after five days' imprisonment. In the circuit court Meyers was
discharged by the state's attorney, the grand^ jury paving found no bill
PROBABLE CAUSB. 307
against him. Under the plea of not guilty there was a trial and a judg-
ment for Meyers of $4,500. Schoonover appealed.
On the appeal it was urged that the prosecution was not sufficiently
ended when this suit was brought. Caton, C. J., said: " No indictment
was found nor was one returned, ignored by the grand jury, but the re*
cognizance was discharged by the state's attorney. This, according to our
practice, is the usual mode of terminating a prosecution where the party
has been recognized by a magistrate, or, in case he has been committed, it
is by discharging him from jail where the evidence is insufficient to induce
the grand jury to find an indictment. It is not usual in this state for the
state's attorney to prepare an indictment and present it to the grand jury, in
the first instance, as in England, to be by them ignored, if not sustained
by the proof. Indictments here are usually drawn only when directed by
the grand jury after having heard the proof. The only record, therefore,
of the termination of the prosecution is the order to discharge the prisoner
or the recognizance."
" It was urged that the fact that the plaintiff appeared before the magis*
trate and waived examination and gave bail for his appearance was an
admission at least of such a probability of guilt as to preclude him from
ever after saying that the prosecution was maUciously instituted. We do
not think so. Such a course may often be judiciously advised, when the
party is not only innocent in fact but known to be so by the prosecutor.'*
Schoonover v. Meyers, 28 111., 808 (1862).
*
§ 27. The question of probable canse In actions for false
imprisonment. — The question of the existence or want of
existence of reasonable or probable cause in actions for false
imprisonment, while subject to the same general rules of law
governing its introduction in evidence as in actions for mali-
cious prosecution, is a much less important element of defense.
In actions for malicious prosecution, we have seen that it is
a complete defense when properly shown. In actions for false
imprisonment, its effect is quite different: it will afford no
justification ; but evidence that the defendant acted with rea-
sonable or probable cause is always competent to mitigate
punitive or exemplary damages.^
§ 28. Probable cause and absence of malice no bar to an
action for false imprisonment. — If a party is assaulted,
beaten and imprisoned by a public officer, in arresting him
1 Conner T. Knowlee, 17 Kan., 436 Dec, 271 (1845); Sugg v. Pool, 3
(1877); Shanley v. Wells. 71 111., 78 Stew. & P. (Ala.), 196 (1882); McCaU
(1873); McDaniel t. Needham, 61 v. Ck^rning, 1 Abb. (U.S.), 212(1867);
Tex. , 269 (1884) ; Livingston ▼. Bur* Sleight v. Ogle, 4 E. D. Smith (N. Y.)^
roughs, 83 Mich., 511 (lb76) ; Miller ▼. 445 (1855>
Grice, 2 Rich. L. (S. C), 27; 44 Am.
308
FBOBABLE 0AU8B.
without authority of law, he will be entitled to recover in an
action of trespass, no matter what may have been the officer's
motive. In such a case, probable cause that the plaintifF was
guilty of a misdemeanor or violation of an ordinance, and ab-
sence of malice on the part of the officer, will afford no justi-
fication.^
iBhanley v. WeUs. 71 DL, 78 (1878).
CHAPTER Vni.
ADVICE OF COUNSEL IN ACTIONS FOR liULICIOUS PROSEOU-
TION AND FALSE IMPRISONMENT,
L In Malicious Prosbcution;
§ 1. The authorities not entirely uniform.
2. The general rule.
8. The law stated by Walker, J.
Applications of the law«
(1) Advice of the commonwealth attorn^*
(2) Advice of different attorneys.
(8) Advice of counsel as a defense. ^
r 4. Advice of an attorney interested in the suiti
6. Character of the counsel.
6. Advice of a justice not sufficient.
Applications of the rule.
(1) Advice of magistrate not sufficient.
(2) The rule in Pennsylvania.
7. Honest prosecutor protected — Matter of public poUpy;
The rule illustrated.
Prosecutor relying upon statements of persons, etc'
8. Duty of party seeking advice of counseL
Applications of the rule.
(1) Did not lay all the facts before the counseL
(2) Did not state all the material facts to the advlsiiig oouBStL
(8) Advice of state's attorney.
0. Advice of officers — Policemen, detectives, eta
10. Effect of the advice of persons not attorneys*
Applications of the rule.
Advice of a person not a lawyer.
IL Good faith, independent of legal advice.
II. In Pause Imprisonmekt.
Ifii The advice of counsel in actions for false imprisonment
An application of the rule.
Advice of an inexperienced attorney sufficient.
I. In Actions fob Malicious Proseoution.
§1. Authorities not entirely uniform. — The authorities
are not entirely uniform as to bow far or in what manner the
advice of counsel constitates a defense to an action for mali-
310 ADVICE OF COUNSEL.
cions prosecution. A long line of cases holds that it is proof
of probable cause ;^ other authorities maintain that it is evi-
dence of the absence of malice;' while others, and probably
the majority of cases, refer to it as proof of both the absence
of malice and the presence of probable cause.'
§ 2. The general rule. — The general rule seems to be that
where a party has communicated to his counsel all the facts
bearing on the case of which he has knowledge, or could
have ascertained by reasonable diligence and inquiry, and has
acted upon the advice received, honestly and in good faith,
the absence of malice is established, the want of probable
cause is negatived, and the action for malicious prosecution will
not lie.^
1 Boss T. Iryine, ^ HI., 259 (1861); St, 276 (1855): Emerson v. Cochran,
Le Maister v. Hunter, Bright, 495; 111 id., 619 (1886); Stone v. Swift, 4
Laughin v. Clawson, 27 Pa. St, 880 Pick., 889 (1826); Wilder ▼. Holden,
(1856); Olmstead ▼. Partridge, 16 24 id., 8(1886); Stanton v. Hart, 27
Gray, 888 (I860); Potter v. Seale, 8 Mich., 589 (1874); Ash v. Marlow,
Cal., 217 (1857); Levy v. Brannan, 20 Ohio, 119 (1870); Wood v. Weir,
89 id., 485 (1872); Besson v. South- 5 B. Hon., 544 (1844); Lernej v.
ard, 10 N. Y., 286 (1867); Murray v. Williams, 82 Ark., 166 (1877); Tur-
HcLaln, 2 Car. Law Rep., 186. ner y. WaUcer, 8 G. & J., 380 (1881) :
2 Murphy v. Larson, 77 IlL, 172 Chandler t. McPherson, 11 Ala., 916
(1875); Center y. Spring, 2 Clarke, (1847); Ames v. Rathbun, 55 Barb.,
893 (1856); Rover y. Webster, 8 id., 194 (1869); Bliss y. Wyman, 7 Cal.,
502 (1856); Sommer y. Wilt, 4 S. & 257 (1857); Blunt ▼. Little, 8 Mason,
R., 20 (1818); Stanton v. Hart, 27 102(1822); Burnap v. Albert, Taney,
Mich., 589 (1878); Williams v. Van U. a C. C, 244 (1855); Johnson v.
Meter, 8 Mo., 889 (1848); Davenport Daws, 5 Cr. C C, 283 (1837); Schip-
y. Lynch, 6 Jones' L., 545 (1859); pie v. Norton, 88 Kans., 567 (1888).
Cooper y. Utterbach, 87 Md., 282 ^Ash v. Marlow, 20 Ohio, 119
(1872). (1870); Hill v. Palm, 88 Mo., 13(1866);
'Wilkinson V. Arnold, 11 Ind., 45 Eastman v. Keason, 44 N. H., 619
(1858) ; Galoway v. Stewart, 49 Ind., (1863) ; Walter v. Sample, 25 Pa. St,
156 (1874); Gould v. Gardiner, 6 La. 275 (1855); Wicker v. Hotchkiss, 62
Ann., 11(1858); Phillips v.Bonham, 111., 107; 14 Am. Rep., 75 (1871);
16 id., 387(1861); Bartlettv. Brown, Anderson y. Friend, 71 111., 475
6 R. L, 87(1859); Newton v. Weaver, (1874); Stone y. Swift 4 Pick., 889;
18 id., 616(1882); Wicker v. Hotch- 16 Am. Dec, 849 (1826); Whitfield
kiss, 62 m., 107 (1871); Palmer v. v. Brooks, 40 Miss., 811(1866); Laird
Richardson, 70 id., 545 (1873); Davie v. Davis, 17 Ala., 27 (1850); Levi v.
V. Wisher, 72 id., 262 (1874); Skid- Brannan, 89 Cal., 489 (1870); Blunt
morey. Brickey, 77 id., 164 (1875); v. Little, 8 Mason, 102 (1822); Sap-
Stevens y. Farrett, 27 Me., 267 pington v. Watson, 60 Mo., 83(1872);
(1847): Soule y. Winslow, 66 id., Ck>oper v. Utterbach, 37 Md., 283
447 (1876); Watler y. Sample, 25 Pa. (1872); Glasscock y. Bridges, 16 La.
▲DYIOE OF COUNSEL. 811
§ 3. The law stated by Walker^ J. — The general rule, long
and uniformly recognized, in this class of defenses requires a
person to make a full, fair and honest statement of all the
material circumstances of the supposed guilt which are within
his knowledge, or which he could learn by ordinary care, to
a respectable attorney in good standing, and act on his advice.
^^To protect himself he must make a full statement of all
material facts. He will not be protected if he makes a gar-
bled and untrue statement. Human liberty is too sacred to
be recklessly invaded to gratify malice, or for the advance-
ment of personal interest. The law will not tolerate such
nefarious purposes or reckless disregard of the liberty of the
citizen." ^
Applications op the law. —
(1) A person acting under advice of commonwealth attorney, although aot-
uated by malice, not liable for a malicious prosecution,
PoUv sued Yocum for a malicious prosecution upon a charge of being
present, aiding and assisting in the murder of Preston Ck>ultCT, upon which
he was arrested, imprisoned, and remained in prison until he was brought
before the justices and put upon his trial, and the evidence having been
heard the prosecution was dismissed by the commonwealth. On the trial
of the case the evidence tended to show that any agency which Yocum
may have had in the prosecution, so far as Polly was concerned, was wholly
in subordination to the attorney for the commonwealth ; that Yocum and his
friends had determined to prosecute the actual homicide alone, unless upon
the evidence on his trial it should appear that Polly and others of his party
who were present ought to be prosecuted, and that he would not have been
prosecuted had not the attorney for the commonwealth, upon information
not derived from the defendant, directed a constable, who was acting in
the business, to procure the warrant A judgment was entered for the
plaintiff and the defendant appealed.
In delivering the opinion of the court, Marshall, J., after reviewing the
facts, said : " If this be so, we are well satisfied that, whatever malice the
defendant may have had against the plaintiff, he cannot be liable for a
prosecution instituted by the immediate direction of the public attorney,
and in which be did nothing but in subordination to that ofiBcer and to
effectuate his directions. If, being, as he (the defendant) was, a justice of
the peace, he had, on being informed by the constable of the attorney's di*
rections, actually issued the warrant, this would not have implicated him ;
and much less, as we suppose, was he implicated by merely writing the
body of the warrant, as requested, when neither the constable nor the other
Ann., 672 (1860); Bartlett v. Brown, i Roy v. Goings, 112 111., 656(1885);
« R. I., 87 (1859); Davenport v. Anderson v. Friend, 85 111., 185
Lynch, 6 Jones (N. C), 545 (1859). (1877).
312 ADVICE OF COUNSEL.
justice who was applied to was able to make it out without a form ; and it
makes no difference if he, in conjunction with the constable, applied to
the other justice for the warrant which had been directed by the attorney.
As to any subsequent agency which he may have had, nothing appears,,
except that he was used and consulted with by the prosecuting attorney as
a near friend and relative of the deceased, not instituting the prosecution,
so far as the plaintiff was concerned, nor officiously interfering to carry
out eren the directions of the attorney. If these inferences of fact, which
the evidence conduces to establish, are just, surely the opinions and direc-
tions of the attorney for the commonwealth, founded on information iK>t
derived from the defendant, must have tlie effect of protecting him from
such liability for such an agency as is here supposed." The judgment ia
reversed. Yocum v. Polly, 1 B. Mon., 358; 36 Am. Dec., 583 (1841). See
Thompson v. Lumley, 50 Abb. Pr., 105 (1871).
(2) Advice of counsel The coxinty attorney advised against the prosecu-
tion. Another attorney advised in favor of it. The finding of the
jury conclusive on the question of good faith.
There was a controversy over the ownership of a team of horses which
had been delivered to Bartlett by Hawley on a contract of sale, and Bart-
lett claimed the right to hold them. A small part of the purchase-money
had been paid. Hawley discharged Bartlett, who was in his employ, and
there was a dispute about the right to hold the horses. Hawley took them
out of Bartlett's possession by force, and there was a bitter feeling between
them. Immediately afterwards Bartlett went to Hawley's barn and took
out the horses and put them in a neighbor*s barn. Hawley then went to
the county attorney and laid the case before him, but was advised that
there was no ground upon which to base a criminal charge of larceny*
Not satisfied with this advice, he went to another attorney, who adVised
him to have Bartlett arrested for breaking and entering the barn and for
taking the horses. Hawley then went to a magistrate, made a complaint
and procured a warrant, upon which Bartlett was arrested for taking the
horses. Upon a trial he was discharged. He then brought an action
against Hawley for a malicious prosecution. At the trial the jury found
for the defendant and the plaintiff appealed.
Vandenburg, J., in afl^ming the judgment, said: ''Upon the evidence,
though we think the case not free from doubt, and we sustain the trial
court with some hesitation, the question of malice was for the jury ; and
if we concede that a prima facie case was made by the plaintiff's evidence
requiring evidence in rebuttal or explanation, yet we cannot say that the
evidence on the part of the defendant in respect to the advice of counsel
and his reliance thereon, though subject to criticism before the jury, was
not proper to be submitted to them on the question of his good faith. He
was not obliged to consult the county attorney, and he might act in good
faith in following the advice of other counsel in opposition to his. It is a
circumstance to be very carefully considered, upon the question of defend-
ant's good faith ; for if the advice he received did not induce an honest
belief that he had probable cause, and that the plaintiff was guilty of lar-
ceny, it wouU afford him no legal protection. He admitted, indeed, in his
^ -i
ADVICE OF COUNSEL. 31$
cross-examination in this case, that he testified on the preliminary ezami-
nation * that he did not know that he had any reason to think defendant
a hoi-se thief;' 'that he did not really call what Bartlett did stealing. '^
But we have not the whole of his evidence on that examination, and on
this trial he testified 'that when he made the complaint he supposed that
the plaintiff had stolen the horses.' *I made the complaint. Did not
make it maliciously. Had no malice against the plaintiff. I thought he
had taken the horses out of my harn, and had committed the crime of lar-
ceny.' He also testified that, in making the complaint, he acted on the
advice of an attorney ; that he had previously consulted him, after stating
to him all the facts relating to the transaction about the horses and trade ;
that he locked the horses in the barn. Saw the plaintiff pull the bam door
open. * I went and consulted Bassett. He advised me to get a warrant
for breaking and entering the barn. . . . Mr. Bassett had advised me
to have the plaintiff arrested in case of his attempting to take the horses,
and taking them.' This evidence was competent on the question of mal-
ice, and any evidence tending to disprove malice was proper. Garrett v.
Mannheimer, 24 Minn., 193. Upon all the evidence, we are of the opinion
that the question of good faith and credibility of the defendant was for
the jury. The trial court appears to be satisfied with the verdict, and has
refused in the exercise of its discretion to grant a new trial upon the evi-
dence, and we will not assume to interfere on this ground." Bartlett v.
Hawley, 69 Minn., 558; 37 N. W. Rep., 580 (1888).
(3) Advice of counsel as a defense,
Hayne, C. ; Action for malicious prosecution: verdict for plaintiff; de-
fendant appeals. It is contended that the verdict is not sustained by the
evidence in this, that the evidence shows that the defendant relied upon
the advice of counsel. But in view of the testimony, the jury may well
have concluded that the defendant did not believe that the plaintiff was
guilty of the crime with which he was charged. Mr. Crawford, who was
the district attorney, testified that he said to the defendant, when he came
to him to start the prosecution: '* I did not think he could convict under
the testimony. I gave him reasons for it, . . • I told him my opinio{i
was that he had not a very good case. He then remarked that he wanted
the case prosecuted. ... I don't think I told him it constituted grand
larceny. I wrote the complaint as district attorney because I understood
and thought the facts were sufficient to demand an investigation. . . •
I wrote out the complaint because there might be additional facts in the
case obtained by investigation." Another witness — the constable who ar-
rested the plaintiff. — testified to the following conversation with the
defendant: ''I said: *I don't think you can do anything with George.'
* Well,' he says, ' George took sides against me in regard to a woman scrape.
I am going to set him up for some of his meanness, anyhow.'" It is true
the defendant testifies that he consulted other lawyers besides the district
attorney and that they advised him that the prosecution could be. main-
tained. But he did not produce such lawyers as witnesses, and this is
a somewhat suspicious circumstance. We think the evidence is sufficient
to sustain the verdict. Vaun v. McCrearey, 77 Cal., 474; 19 Pac. Rep.,
826 (1888).
314 ADVICE OF COUKSBL.
*
§ 4. Adrlce of an attorney personally interested in the
result of the suit is not suflBcient — The law stated by Lib-
bey, J. — " A party who consults an attorney at law in regard
to his legal right to bring an action against another when the
attorney is interested in the subject-matter of the suit, and
known by him to be so interested when consulted, cannot show
the opinion of the attorney as probable cause for bringing the
suit, although the opinion is honestly given. We think the
grounds upon which the opinion of an attorney can be shown
as probable cause for bringing a suit are, that he is an oflScer
of the court held out to the public as one learned in the law,
and that the client has a right to presume that he will give
him a fair, unbiased and well-grounded opinion as to his legal
rights. But when the attorney is directly interested in the
subject-matter of the suit and his interest is known to the
client, the client has no right to presume that he will give
him an unbiased opinion, and if he takes it and acts upon it,
and it turns out to be erroneous, it will afford him no justifica-
tion. The client knows that he has not consulted ar- disinter-
ested and unbiased attorney. Neither a judge nor juror thus
interested would be competent to sit in the trial of the case,
and if either should act it would be ground for a new trial,
although he acted honestly. Why should the opinion of an
attorney thus interested be entitled to greater respect than
the decision of the judge? It might as well be held that when
an attorney is defendant in an action for malicious prosecu^
tion, be may justify on the ground of probable cause by sat*
isfying the jury that, as a lawyer, he, in good faith, believed
be had a good cause of action, although in fact he had none." ^
§ 6. Character of the counselor. — When the advice of
counsel is relied upon as a bar to the action for malicious
prosecution, it must appear that the counselor is a regular
attorney licensed to practice under the laws of the state in
which he resides, competent to give advice in legal matters.
Attorneys at law are, in some sense, regarded as officers of
court; and it is upon grounds of public policy, where a party
has been advised by an attorney in active practice, upon full
consideration of the facts, to institute a criminal prosecution,
iLibbey, J., in White v. Carr, 71 Me., 655; 26 Am. Rep., 858.
ADVICE OF COUNSEL. 316
if he acts in good faith under the advice given, he shall not
be mulcted in damages, although the party accused may be
innocent of the crime alleged against him. If this was not /
the law, no man would feel safe in preferring a complaint
against another for a criminal offense. The policy of the law
is to encourage prosecutions when there are facts and circum-
stances that would induce the belief, in the mind of a reason-
ably cautious man, of the guilt of the party accused. In such
cases the advice of competent counsel, if given and acted upon
in good faith, upon a full disclosure of all the facts, has uni-
formly been held to constitute probable cause for instituting
a criminal prosecution, notwithstanding it may appear after-
wards that the party accused was not guilty.^ To permit the
counsel of those of whose capacity the courts have no means
of judging, and who owe no responsibility to the courts, to be
received as evidence in bar of the action, would lead to col-
lusion, and furnish a ready defense to all actions in which the
advice of counsel is a defense.'
§ 6. Advice of a justice of the peace is not suffleient. — In
actions for malicious prosecution it has been held to be com-
petent for the defendant to prove, in order to establish the fact
of probable cause, that on prosecuting the plaintiff on a crim-
inal charge he acted in accordance with the advice of counsel
on a full and correct statement of all the material facts bear-
ing on the case.' But such testimony has always been limited to
communications with counsel or attorneys. Statements made
to other persons, as justices of the peace,^ and advice given
by them, have never been deemed admissible for this purpose.
The law wisely requires that a party who has instituted a
groundless suit against another should show that he acted on
the advice of a person who by his professional training and
experience as an oflScer of the court may be reasonably sup-
posed to be competent to give safe and prudent counsel on
which a party may act honestly and in good faith, although
1 Murphy ▼. Larson, 77 111., 172 Pick. » 898; Ravengav. Mackintoeht
(1876). 2 B. & C, 693 ( ).
^WiUiams v. Van Meter, 8 Mo., ^Olmetead ▼. Partridge, 82 Mass.,
889 ( ). 881 (I860); Moore v. Sanborin, 42
sOlmstead ▼. Partridge, 82 Mass., Mo., 494 ( ); Brobet ▼. Ruff, 100
881 (1860); Hewlett v. Cruchley, 5 Pa. St, 91; 45 Am. Bep., 868 ( )^
Taunt, 277 ( ); Swift v. Stone, 4
316 ADVICE OF COUNSEL.
to the injury of another. It would open the door to great
abuse of legal process if shelter and protection from the con*
sequences of instituting an unfounded prosecution could be
obtained by proof that a party acted on the irresponsible ad-
vice of one who could not be presumed to have better means
of judging of the rights and duties of the prosecutor on a
given state of facts than the prosecutor himself.^
Application of the bulb. —
(1) Advice of a justice of the peace not sufficient
Sabina Olmstead brought an action against Jerusha Partridge for a ma-
licious prosecution. On the trial it appeared that in the prosecution com-
plained of as being malicious the defendant charged the plaintiff with the
larceny of one hundred sticks of oak wood, on which she was arrested, and
after a trial before a trial justice was discharged. The defendant called
the justice of the peace to whom the complaint was addressed and offered,
to prove by him that at the time of making the complaint she applied to
him for advice and counsel and stated that she had caught the plaintiff
with two sticks of her wood in her arms, but it appearing that the justice
was not an attorney or counselor at law, the evidence was rejected. The
plaintiff recovered a verdict, which, on ezceptances in the supreme judicial
court, was sustained. Olmstead v. Partridge, 82 Mass., 381 (1860).
(2) The advice of a justice of the peace not sufficient in Pennsylvania,
Josiah Ruff brought an action against Willoughby K. Brobst for an al-
leged malicious prosecution. The plea was not guilty. On the trial it
appeared that in March, 1879, Brobst made an information before a justice
of the peace that Ruff had stolen timber belonging to him. A warrant
was issued, and an arrest and bail for Ruff*s appearance at court followed.
An indictment was subsequently submitted to the grand jury, but they
ignored it. Brobst offered to prove, for the purpose of showing that he
acted with the greatest caution and took the advice and counsel of one
whom he believed to be more skilled- in such matters than himself, that he
went to the justice of the peace and stated to him all the facts as he had
heard them from different parties, and asked the justice whether such a
statement of facts was sufficient to constitute a ground for the charge of
larceny against Ruff, and whether, in his judgment, it was sufficient upon
which to base a criminal prosecution, and that he was then and there ad-
vised by the justice of the peace that it was sufficient for that purpose,
etc. The offer was denied and judgment followed for the plaintiff. On
error in the supreme court, Mercer, J., said: '* The plaintiff in error offered
to prove that he stated to the justice, before whom the prosecution was
about to be instituted, the facts as he had heard them, and that he was
advised by the justice that they were sufficient upon which to base a
criminal action.
1 Olmstead v. Partridge, 82 Mass., 881 (X860>
ADVICE OF COUNSEL. 317
** When a prosecutor fully and fairly submits to his counsel, learned in the
law, all the facts which he knows to be capable of proof, and is advised that
they are sufficient to sustain a prosecution, and, acting in good faith on
that opinion, does institute the prosecution, he is not liable to an action for
malicious prosecution, although the opinion be erroneous. Shall the ad-
vice of a committing magistrate have the same effect? We think not.
Justices of the peace are not required to be learned in the law. In fact,
generally through the state they are not ; they are not qualified by a course
of study to give advice on questions of law. They do not pursue it as a pro-
fession ; they are not charged with the duty of advising any person to com-
mence a prosecution. They ought not to act as attorney or agent for one
in regard to a prosecution he is about to institute before them. Their duties
are judicial. They may, in the discharge thereof, reduce the substance of
the complaint to writing, in the form of an information of the prosecutor.
Thus they judicially determine whether the facts therein averred be suffi-
cient to justify the issuing of a warrant.
" An educated business man may be much better qualified than many in-
experienced justices of the peace to advise as to the law, and yet I am not
aware that the advice of such a person has ever been held to protect against
damages for a malicious prosecution. The protecting power of the rule
extends no further ihan the advice of one learned in the law. In an'action
for malicious prosecution, the defendant cannot be permitted to prove that
he acted under the advice of a magistrate.'* Brobst v. Ruff, 100 Pa. St.,
91; 45 Am. Rep., 858(1882). Citing Straus v. Young, 87 Md., 282; Olm-
stead V. Partridge, 82 Mass., 881.
Note. — It does not appear from the case for what particular purpose the
evidence was offered, though it must have been as a defense in bar of the
action, and not for the purpose of disproving malice and in mitigation of
damages. It is probable that the plaintiff waived his ri^ht to claim puni-
tive damages, as he might have done, and so rendered the evidence incom-
petent for any purpose.
§ 7. Honest prosecutors protected as a matter of pnblie
policy — Advice of connseL — It has been uniformly held that
when the prosecutor fairly presents all the facts to a respon-
sible practicing attorney, who, from such a statement of facts,
advises him that they are sufficient to warrant a prosecution,
he is protected against a suit for malicious prosecution from
the very nature of our criminal laws. This must be so, other-
wise there would be no safety in originating such proceedings.
But few persons outside of the profession can determine, in
many cases, whether or not the facts will justify a criminal
prosecution ; but it is to be presumed that all respectable at-
torneys in full practice will, as it is their duty to do, fairly and
honestly advise in these as in all other cases. If a prosecutor
may not safely act upon such advice, then he has almost to
guaranty a conviction when he starts a prosecution. The
318 ADVICE OF 00UN8EL.
criminal law must be enforced and human agencies must be
employed for the purpose, and the law wisely protects all
persons who in good faith act on reasonable presumption of
the guilt of the accused. Where the prosecution is commenced
on the advice of respectably counsel, after fairly presenting to
his consideration all the facts, and he advises that they are suf-
ficient, it cannot be held that the prosecution is groundless
and that there is want of probable cause.^
The bulb illustrated. —
Prosecutor relying upon statements of persons to which they declined to
testify, etc,, protected. *
Anderson lost two hogs which he supposed were stolen. On learning
matters which led him to suppose that Mrs. Friend and her husband and
others were the guilty parties, he went to the state's attorney and laid be-
fore him the evidence, but was advised it was not sufficient. Afterwards
a person communicated to him matters which he professed to be willing
to swear to, and Anderson went again to the state's attorney, where the
person maide his statement. Upon this he was advised that the evidence
was sufficient Anderson then procured a warrant from a justice of the
peace against Mrs. Friend and her husband, but on the preliminary exam-
ination they were discharged. Mrs. Friend then brought an action for
malicious prosecution against Anderson and recovered a judgment, but it
was reversed on appeal to the supreme court.
/ Walker, J. : "In this case appellant twice consulted the prosecuting at-
torney, and on first being advised that there was not a sufficient case, he
refrained until he found other evidence. He then took the witness with
him to the attorney, who, after hearing what facts he knew, advised the
prosecution which was then commenced. What more could appellant have
done? Owing to the frequency of suits for malicious prosecution, he prob-
ably felt and knew that he must act with prudence and circumspection,
and he seems to have acted with deliberation, caution and prudence. If
the advice of the attorney selected to institute and prosecute for crimes and
offenses against the penal code will not protect the prosecutor on the facts
fairly stated, we should be at a loss to know what would protect him short
of a conviction ; but it does protect and shield him from a suit formalicious
prosecution." Anderson v. Friend, 85 111., 185 (1877).
^ § 8. Duty of one seeking the adyice of counsel — Beasoii«
able inquiry as to the existence of facts. — One who seeks
the advice of counsel with reference to the commencement of
a criminal prosecution is bound to act in good faith in the
matter. Unless he does this, he will not be protected from
1 Anderson v. Friend, 85 Dl., 185 (1877) ; Roy v. Goings, 112 111., 656 (1885).
ADVICE OP COUNSEL. 319
liability on the ground that he acted upon the advice given
him. He is required to make to the counsel a full and fair
statement of all of the material facts known to him. If he
has reasonable ground for believing that facts exist which
would tend to exculpate the accused from the charge, good
faith requires that he shall either make further inquiry with
reference to those facts, and comtnunicate the information
obtained to the counsel, or that he shall inform him or his
belief of their existence, in order that lie may investigate with
reference to them, and take into account, in forming his opin-
ion, the information attained with reference to them. But he
is not required to do more than this. He is not required to I
institute a blind inquiry to ascertain whether facts exist
which would tend to the exculpation of the party accused.
But if he honestly believes that he is in possession of all
of the material facts, and makes a full and fair statement
of those facts to the counsel, and acts in good faith on
the advice given him, he ought to be protected. This, it
seems to us, should be the rule when the advice of private
counsel is relied on. '^But there are more cogent reasons for \
applying it where the communication is made to the public
prosecutor. In criminal cases that oflBcer is the representa-
tive of the state. He is required not only to prosecute in-
dictments which are found, but it is his duty to assist in the
investigation of charges against individuals which are brought
to the attention of the grand jury. He is by law made the
legal adviser of the grand jur}'. When complaint is made to
him that a public offense has been committed, it is his duty
to investigate the charge, and, if he deems it a matter of suf-
ficient importance, to demand the attention of the grand jury.
It is also his duty to have the witnesses subpoenaed and
brought before that body, and he has the right to appear also
and assist in their examination. Neither he nor the grand
jury are confined in their investigation to the witnesses named
by the complainant, but they have the power to send for and
examine any witnesses whom they have reason to believe can
give any material evidence bearing on the question of the
guilt of the accused. We will not, of course, be understood
as holding that a party who maliciously makes a groundless
charge to the district attorney, and thereby procures the find-
320 ADVICE OF COUNSEL.
ing of an indictment, is not answerable to the one injured by
the proceeding. It would, however, be a very harsh rujfi,
and one calculated to discourage entirely the making of com-
plaints by private individuals, to hold that one who has acted
on the advice oj^ the district attorney, given upon a full and
fair statement of all the material facts which he knew, or
which he had reasonable ground to believe, existed at the
time, was n^ protected by the advice of the attorney, simply
because he did not, before making the complaint, learn of the
other material facts of the existence of which he might have
learned by reasonable inquiry; yet this doctrine seems to
have the support of Ililliard in his work on Torts,* and Wait
in his work on Actions and Defenses.^ The doctrine of the
text is supported, however, by but few of the cases cited in
, the notes in support of it, and we do not believe it is sound.'
Applications of the rule. —
(1) Did not lay all the facta before the counsel,
James W. Watts brought an action against William Paddock, B. F.
Paddock and D. £. Paddock. The defendants were partners in the sum-
mer of 1882, engaged in the milling business in the city of Terre Haute.
They employed the plaintiff to purchase wheat, agreeing to furnish the
money, and to pay him a commission of three cents per bushel on one
kind of wheat, and to share the profits equally with him on all wheat of
another kind which he should purchase for them. Considerable quantities
of wheat were purchased, and a large sum of money furnished, under this
arrangement, which was continued until in the autumn of 18^2. After the
plaintiff ceased purchasing wheat, an accounting was attempted between
the parties, and a dispute arose concerning a certain check drawn by Pad-
dock & Co. in favor of the plaintiff for $1,000, upon the First National
Bank of Terre Haute. That a check for that amount was drawn, payable
to Watts or bearer, on the 26th day of July, 1882, and that it was paid by
the bank on that day to some one, is not disputed. Watts had no account
of it on his books, and, according to his testimony, disputed the fact of
ever having received the check or the money it called for, although the
amount was cliarged to him on the books of Paddock & Co. Failing to ar-
rive at a satisfactory adjustment of tlieir affairs. Watts commenced a civil
suit against Paddock & Co. for damages growing out of an alleged viola-
tion of their contract; after which, at the instigation and upon the testi-
mony of the defendants, the grand jury of Vigo county returned an indict-
ment charging him with having embezzled their money and check& After
11 Hilliard's Torts, 506, s Johnson v. Miller, 69 Iowa, 662;
24 Wait's Actions and Defenses, 29 N. W. Bep., 743 (1886).
^35.
ADYIOB OF COUNSEL. 321
*liearing the evidence on behalf of the state, the court directed a verdict of
4ioquittal, and this ended the criminal proBecution, which is now alleged to
have been begun maliciously and without probable cause.
During the progress of the trial the prosecuting attorney, who, upon the
facts as communicated to him by the appellants, advised the institution of
•tk criminal prosecution against Watts, after having testified to that effect
in appellants' behalf in chief, was asked the following question on cross-
examination: ** State if you had known that he still disputed the payment
of the check, and disputed that he got it, would you have given the advice
you did;" to which the witness responded that he " would not." It was
-competent for the defendants, in order to disprove malice* to show that in
instituting criminal proceedings they acted under the advice of competent
<x>unsel. Where one lays all the facts before counsel, and acts in good
faith upon an opinion given, he is not liable to an action, even though it
turns out that he was mistaken ; but, in order that he may obtain indem-
nity, he must have made a full and fair statement of all the facts known
to him. McCarthy v. Kitchen, 59 Ind., 600, and cases cited; Center v.
Spring, 2 Iowa, 893. The prosecuting attorney having testified that, upon
a certain hypothesis or state of facts communicated to him by the appel-
lants, he, as a lawyer and an officer of the law, advised the institution of
criminal proceedings against Watts, it was competent to ask him, as an
expert, whether or not, if the hypothesis or facts upon which he proceeded
had been changed in the manner indicated by the question, he would have
arrived at a different conclusion. This was only another way of showing
the materiality of the facts assumed to have been withheld from the prose-
eating attorney. We find no error. The judgment is affirmed. Paddock
et al. V. Watts, 116 Ind., 146; 18 N. E. Rep., 521 (1888).
(2) Did not state all of the material facts to the advising coutueL
In an action for malicious prosecution, it appeared that Donnelly, the
plaintiff, who had obtained goods upon a conditional sale, mortgaged them
to defendant ; that afterwards the goods were taken away by the seller
upon a lease, and this fact was made known to the defendant by the plaint-
iff, and the former asked plaintiff to assign to him the suit a>;ainst the
party taking them away, but no such assignment was given. The defend-
ant afterwards instituted criminal complaints against the plaintiff on a
charge of concealing the property, the complaints being made after the de-
fendant had consulted a competent lawyer, but it appeared that the defend-
ant did not state to the latter all the facts known to him relative to the
case. On this point the defendant called J. £. Pond, who testified that he
was an attorney, having practiced fourteen years ; that the defendant came
to him with the mortgages, telling him he wanted him to collect them,
either by foreclosure and sale, or otherwise. He gave the mortgages to a
deputy-sheriff to hunt up the property; from the latter's report he told
him the only course he could see was to bring the criminal prosecution ;
and that he did not obtain any of the facts on which he based the advice
from the defendant, except the fact that the mortgages were given ; that
all the defendant said to him was that the mortgages were given. The de-
fendant, to the question whether or not he had any facts within his knowl-
21
y
322 ADVICE OF OOT7K8EL.
edge with relation to this matter which were not stated to Pond, testified r
"No, sir." "In fact I got the most of my knowledge about this from
Pond, from his report." Defendant also testified that there were no facts
which he knew about this matter which were not brought out in his con*
Tersations with Pond, his attorney ; that he told Pond that the plaintiff
owed him the mortgages, and that he wished Pond to collect them ; thafr
perhaps he said to Pond that he had heard the furniture had been taken
away. At the close of the evidence, the defendant requested the court to
rule that the question whether or not there was probable cause on the facts
proven was a question of law for the court, and to rule as a matter of law
that the evidence did not show want of probable cause. The presiding
judge refused to so rule, the jury found for the plaintiff in the sum of
$975, and the defendant alleged exceptions.
Field, J. : If a person lays before counsel, learned in the law, fully aH
the facts which he knows, and all the facts which he believes to be true,
and can be established by evidence, and he is advised by counsel that they
constitute a legal cause for a prosecution, and he in good faith accepts this
advice and follows it. he is not liable to an action for malicious prosecu"
tion. Olnistead v. Partridge, 16 Gray, 881.
In the case at bar material facts were in dispute, and it does not appear
that a full and correct statement of the facts, as known to the defendant,
was laid before counsel. Exceptions overruled. Donnelly v. Daggett, 14&
Mass., 814; 14 N. E. Rep., 163 (1887).
(3) Advice of staters attorney — Statement of facts,
Phoebe Thomas rented land to Morgan S. Thomas, which he cultivated
in corn in the summer of 1872, his term expiring March 1, 1878. In August,
1872, he entered into a contract whereby he sold his part of the crop to
Bufus Calef, to be delivered in the shock on the ground. Delay occurred
in estimating the quantity of the corn so that the transaction was not
finally closed between Calef and Morgan until March, 1878. Phoebe rented
the land on which the corn was to John Thomas for the year 1873, his term
commencing March 1st of that year. Calef neglected to remove the corn
until late in May (whether by the consent of John or not is in contro-
versy) and then commenced to remove it with ox teams. Phoebe objected
to the use of ox teams in removing the corn, insisting they would damage
her land more than horses ; but no heed was given to this objection. John
commenced plowing for the spring crop before the corn was all removed,
and made frequent complaints to Phoebe that Calef was not removing his
corn sufficiently fast to enable him to progress with his work. Calef had
been notified previously to remove the corn, and there was evidence tending
to show that the two teams employed for that purpose by him, and which
were constantly engaged at it, were not sufficient to remove the com fast
enough to keep out of the way of the teams of John in plowing. Finally
Phoebe burned, on one occasion, several of the shocks of corn, and shortly
after a number more, in all sixty shocks. Calef, after the burning, saw
her and she acknowledged that she had burned it; whereupon he went to
the state's attorney and made a statement in regard to the matter. The
state's attorney advised that she be prosecuted for malicious mischief, and
ABYIOB OF OOUKSBL. 323
prepared an affidavit charging her with burning the com, which Calef
took to a justice of the peace and obtained a warrant for her arrest. When
arrested she went before the justice, waived an examination, and gave
bail for her appearance to answer to an indictment, etc. At the next
term of the court the case was presented to the grand jury, who ignored
the bill and she was discharged. She then brought an action against
Calef for malicious prosecution. On the trial the jury returned a verdict
for $1,055.55, upon which judgment was entered, and Calef appealed to
the supreme court.
Chief Justice Scott said: " I am of the opinion defendant made a full
and fair statement of all the material facts of the transaction out o^ which
this litigation arose, to the state's attorney, to enable him to advise him
as to his duty in the matter, before he commenced the criminal prosecu-
tion, and in good faith acted on the advice received from that officer*
Under the decisions of this court, this advice was a sufficient warrant for
instituting a criminal prosecution. Whether plaintiff was guilty of a
criminal act in destroying defendant's property, or whether she was justi-
fied in so doing, are questions which need not be discussed in this case.*'
Judgment reversed. Calef v. Thomas, 81 111., 478 (1876).
§ 9. Adviee of offleer^^ policemen and detectiyes.— The
advice given by policemen, detectives and like oificens is prop-
erly admitted in evidence on the trial of actions for malicious
prosecutions and false imprisonment to' show the circum-
stances under which the prosecution was instituted and to
mitigate the damages; but such advice can never be shown as-
a defense, as would be the advice of a respectable attorney,,
fairly and honestly obtained, regarding a prosecution claimed
to be malicious. The law has never regarded the advice of
such officers as being a justification for instituting mistaken
criminal proceedings. It is believed that such officers from
the very nature of their business become more suspicious than
ordinary persons.^
§ 10. ElFeet of the 'advice of persons who are not law-
yers — Competent on the qnestion of malice.-^ As one of the
grounds of action for malicious prosecution is malice, and
any fact tending to disprove it is competent evidence, hence
the fact that before the commencement of the proceeding
complained of the party sought for and obtained the advice
of persons whom he in good faith supposed to be competent
to give such advice, while it does not constitute a defense to
the action, is certainly competent on the question of malice
in mitigation of damages.'
iHirsh V. Feenej, 88 HI., 648 ^Murphy v. Larson, 77 lU., 17a
(1876). (1875).
324 advice of oouksel.
Application of the bulk. —
Advice of a person not a lawyer not competent as a bar to the action but
may be in mitigation of damages,
Victor Larson brought an action for malicious prosecution against Sam-
uel A. Murphy for maliciously and without probable cause procuring his
arrest on a charge of larceny. Larson was about to remove some lumber
from a farm he had been occupying as tenant of a former owner. Mur-
phy had purchased the farm and claimed the lumber. Murphy discovered
Larson in the act of removing the lumber, and a violent altercation took
place between them. Murphy immediately went to a neighboring town
for legal advice. He applied to one attorney, who informed him that he
was retained by Larson, but that tliere were other attorneys in town, but,
as it was claimed, they were not attorneys of record. To one of these
Murphy applied and made a full and fair statement of the case, and was
advised to have Larson arrested on a charge of larceny) and drew the nec-
essary papers. On the trial the defendant relied upon this advice as a de-
fense. This jury rendered a verdict for $300 and Murphy appealed to the
supreme court. Scott, J. : *' There can be no question but the defendant
consulted the person in the utmost good faith, believing he was an attor-
ney-at-law, and competent to give advice in legal matters; that he made
a full and fair statement of all the facts to him in relation to the charge,
and relying upon the advice he received he caused the arrest to be made.
Had he been a regular attorney licensed under the laws of this state, in
good standing, competent to give advice, and had he counseled the arrest
of plaintiff on a charge of larceny, after having a full statement of all the
facts, however much he may have been mistaken as to the law, still, if de-
fendant was in good faith guided by his counsel, and it appeared that he
sought the counsel with an honest purpose to be informed as to the law,
such advice would constitute probable cause, and an effectual bar to any
action for malicious prosecution ; but there must always be the element of
good faith, and we have been referred to no case that holds there are any
exceptions to the general rule. The counsel selected must be a regularly
licensed attorney and counselor, reputable in character, and considered
in the community competent to give legal advice on all matters pertaining
to the law.'' • . • " We are unwilling to establish the doctrine that
counsel taken of a person not a lawyer, although received and acted upon
in good faith, can ever be a justification for commencing a criminal prose-
cution." Murphy v. Larson, 77 111., 176 (1875).
Competent on the question of malice, — *' As the ground of this action is
malice nud want of probable cause, any fact tending to disprove either is
competent evidence." • . • "The fact that he obtained counsel of one he
bUpj^Obed was learned m the law and competent to give advice, and was
advised bf him, upun a disclosure of the facts and circumstances, to com-
mence the crmimai prosecution, while it constitutes no defense, was cer-
tainly coui^>eleui evidence uu tne question of malice. If he acted in good
taithy — 6iid thai wbuj a question for the jury, — it would negative in a high
degree itA;^ i^ea ut malice, and that fact ought to go in mitigation of exem-
plary datXft&Kes." Scoti, J., in Murphy v. Larson, 77 111., 176 (1875).
. ADVIOB OF COUNSEL. 325
•
§11. Good faith — Independent of legal adylee. — The
law requires that one in instituting a criminal prosecution
shall act in good faith, or under an honest belief of the guilt
of .the party arrested ; and this notwithstanding he has taken
legal advice.^
11. In AcnoNS fob Falsb Impbisonment.
§ 1 2. jkdyiee of connsel. — Tlie advice of counsel in actions
for false imprisonment, while subject to the same general rules
of law governing its introduction in evidence as in actions for
malicious prosecution, is a much less important element of de-
fense. In actions for malicious prosecution, as we have seen,
the advice of counsel goes to disprove malice, and it may, in
effect, become a complete defense to the action. But in ac-
tions for false imprisonment its effect is very different. It
goes only in mitigation of exemplary damages.'
An application of the eule. —
Advice of an inexperienced attorney ia sufflcient.
Thomas sued Mortimer and HarreU for false imprisonment in procuring
his arrest for a debt. The trial resulted in a judgment for $1,000, from
which the defendants took an appeal.
Wylj, J. : " We have no doubt that Thomas, the creditor, merely desired
to coUect the claim due him by the plaintiff ; but the utter want of prob-
able cause for the arrest shown in his petition for arrest is a sufficient
ground for inferring malice. He acted, however, under the advice of a
young lawyer who instituted the proceedings, whose ignorance of the law,
although not justifying the arrest, might to some extent mitigate the dam-
ages to which his client should be subjected." Mortimer v. Thomas, 28 La.
Ann., 165 (1871).
lEoy V. Goings, 112 HI., 656 (1885). ter, 22 Mich., 800 (1871); Reuck v.
» Field on Damages, § 682, p. 641 McGregor, 32 N. J. L., 70 (1866);
(1876); Eggleston on Damages, 124 Mortimer v. Thomas & HarreU, 28
(1880); Bohmv. Dunphy,l Mont. T., La. Ann.. 165 (1871); McCall t.
888 (1871); 1 Sutherland on Dam- McDowell, 1 Abb. (TJ. S.) a C, 212;
ages, 237 (1888) ; Fox v. Davis, 55 Deady, 288 (1867).
Ga., 248 (1875) ; Josselyn v. McAUis-
CHAPTER IX.
■
THE END OF THE PBOSECUTIOKi
I g h The end of the proeecation.
8. The subject continaed.
8. For prosecuting criminal aottona.
4. For prosecuting civil actions.
Applications of the law.
(1) The action prematurely brought.
(2) The suit prematurely oommenoed.
(8) What is not end of the prosecution*
5. The law stated by Cowen, J.
0. The subject discussed.
7. The means by which the end of the prosecution is acoompUahed*
8. By a nolle pro9equi — The term defined.
9. Effect of the entry of a nolle prosequi,
10. When it is a suflicient termination of the proceedings.
Illustrations from American cases.
(1) A nolle prosequi an end of the proceedings.
(2) The same not an end of the proceedings.
(8) When a »olle prosequi is not.
(4) When it is, etc.
(5) Entered without the advice or consent of the defendant.
(6) Discharge of magistrate upon entering, eta
(7) Judgment that the defendant go hence thereof acquit;
11. Summary of the law.
12. A better rule.
18. Dismissal of the prosecution.
Illustrations from American cases.
(1) Dismissal of a criminal prosecution.
(2) A dismissal not an end of the prosecution*
(8) Abandonment of a civil suit
(4) Same plaintiff failing to appear.
14. By vacation of order of arrest, etc.
Illustrations from American cases.
Vacation of order for arrest in a dvil suit
16. By discharge on orders of court.
Illustrations from American cases.
A person recognized must be discharged by order of court
18. Discharge of magistrate sufficient, when.
Illustrations from American cases.
(1) Discharge by justice sufficient, though he does not have fall
jurisdiction.
END OF THIS FBOSEOUnON. 827
(2) Acquittal before magistrate having no jnrisdiction.
(8) Prosecution abandoned by complainant.
(4) Discharge on preliminary examination sufficient.
(5) Discharge on prosecutor failing to appear.
% 17. By a discharge on habeas corpus.
Illustrations from American cases.
(1) When the discharge is not an end.
(2) When it is a sufficient end, eta
18. Miscellaneous matters of discharge.
Illustrations fi^m American cases.
(1) Voluntary escape from an officer is not
(2) Obtaining leave not to file an information.
(8) Indictment quashed and defendant released.
19, Finding an indictment for a different offense.
An illustration.
Indictment for an offense different from the one charged in the
original complaint.
'20. Conclusions — End of the prosecution in falae imprisonment
21. The same in actions for malicious prosecution.
'22. Distinctions between actions for malicious prosecution and false im-
prisonment.
28. End of the prosecution — Digest of American oases.
§ 1 . The end of the proseention, — It is well settled that
in order to maintain an action for malicious prosecntion the
prosecation complained of as being malioioas must have been
legally terminated prior to the commencement of the action;
bat just what is a legal termination of the prosecution and
sufficient to maintain the action for malicious prosecution does
not appear to have been so completely settled.
§ 2. The end of the prosecntion — The snhject contlnned.
The general rules of law governing actions for malicious ar-
mrests and prosecutions have long been well settled. In the
words of Lord Camden : '^ This is an action for bringing a suit
•at law, and courts will be cautious how they discourage men
from suing. When a part}^ has been maliciously sued and held
to bail, malice, and that it was without any probable cause,
^must be alleged and proved." ^ The new action must not be
brought before the first is determined, because till then it can-
not appear that the first was unjust.'
iGkMlin ▼. Wiloock, 2 Wils., 802, > Buller's Nisi Prius, 12; Cardival
:$07; Cardival v. Smith, 109 Mass., v. Smitli, 109 Mass., 158(1872).
158 (1872X
S2S END OF THB PROSECOTION.
§3. (1) For prosecntlng criminal actions.— When the-
prosecation alleged to have been malicious is by complaint ii»
behalf of thegoverntnent for a crime, and in pursuance thereof
an indictment has been found and presented to a court havings
jurisdiction to try it, an acquittal by a jury must be shown.
A nolle prosequi entered by the attorney for the government
is not as a general rule sufficient, for the finding of the grand
jury is some evidence of probable cause, and another indictment
may still be found on the same complaint.^ But if the pros-
ecution is commenced by a complaint to a magistrate who has
jurisdiction to bind over or discharge, his record, stating that
'^ the complainant withdrew his prosecution, and it was there-
fore ordered that the accused be discharged," is equivalent to an
acquittal.' If the accused, after being arrested, is discharged
by the grand jury finding no indictment, that shows a legal
end to the prosecution.* And if the prosecutor, after procur-
ing the arrest, fails to enter complaint, this, with the attend-
ing circumstances, is sufficient to be submitted to a jury as>
evidence of want of probable cause, and a sufficient termina-
tion of the prosecution.^
§ 4. (2) For prosecuting civil actions. — When the suit
complained of is a civil action, wholly under the control of
the plaintiff therein, it would seem that a discharge thereof
by him, without any judgment or verdict, is a sufficient lim-
1 BuUer's Nisi Prius, 14; Bacon v. would have shown a legal end to the
Towne, 4 Cnsb., 217 (1849); Parker prosecution," does not necessarily
v. Farley, 10 Cusb., 279 (1852); imply that the mere fact of the grand
Bacon ▼. Waters, 2 Allen, 400(1861); jury not finding a biU at the term
Cardival v. Smith, 109 Mass., 158 to which the accused is bound over
(1872). would be an end to the proeecution.
> Sales ▼. Briggs, 4 Met, 421, 426 It rather implies that the prosecutioa
(1842). is not ended unless he is discharyed
* Cardival V, Smith, 109 Mass., 159 by reason of the jury finding too
(1872); MitcheU ▼. Williams. 11 M. & bill. Knott v. Sargent, 125 Mass.,.
W., 205; Bacon ▼. Waters, 2 Allen, 95 (1878); Jones ▼. Givin, Gilb., 185,.
400 (1861); Freeman v. ArkeU, 2 220.
B. & C, 494; 3 D. &R., 669; Mor- <Venefra v. Johnson, 10 Bing.^
gan V. Hughes, 2 T. R.. 225,232. 801; 8 Moore & Scott, 847 ; 6 C. & P.^
The dictum of Mr. Justice Buller, in 50 ; McDonald v. Rooke, 2 Bing»
Morgan v. Haghes, that if the ac- N. C, 217; 2 Scott, 859; Cardival t^
cused ** was discharged by the grand Smith, 109 Mass., 158 (1872X
jury not finding the bill, that
JBND Off THB PROSEOUnON. 329
itation of the suit ; and that, for instance, if one maliciously
causes another to be arrested and held to bail for a sum not
due, or for more than is due, knowing that there is no prob-
able cause, and after entering his action becomes nonsuited, or
settles the case upon receiving part of the sum demanded, an
action for malicious prosecution may be maintained against
him.^
Applications of the law. —
(1) The action prematurely brought,
Hamilburgh hired a store of Shepard, paying the rent monthly. He sold
ont his stock and was about to go to Europe, when Shepard, on June 9,
1873, by the advice of counsel, caused him to be arrested on a writ of that
date although the rent was not due until five days after. An officer ar-
rested Hamilburgh and held him in custody for two hours and then released
him on his furnishing a sum of money, which the officer took and held, as
he claimed in his return, by attachment. Hamilburgh p>aid his rent when
<1ue and the officer returned him his money, and it was agreed between
Hamilburgh and Shepard that the suit in which Hamilburgh was arrested
should be entered ** neither party.'* The writ was returnable June 28, 1873,
but was never entered in court On June 11, 1878, Hamilburgh brought a
suit against Shepard for malicious prosecution. It was held by Gray,
C. J., that the action could not be sustained without proof that the prose-
cution had been determined, which it had not at the time his action was
commenced. Hamilburgh v. Shepard, 119 Mass., 80 (1875).
(2) The 8uit prematurely brought.
Johnson brought an action against Shove for maliciously prosecuting
him on a charge of larceny. The evidence showed that he was bound
over by a justice of the peace to answer at the next term, etc. At that
time the grand jury, having investigated the charge and found no biU,
were dismissed. The action was commenced before the final adjournment
of the term. The judge ruled that as the suit was commenced before the
final adjournment of the court it could not be maintained, and the ruling
was sustained. Johnson v. Shove, 72 Mass., 498 (1856).
(8) What is not an end of the prosecution.
In an action for malicious prosecution, the summons was issued on June
80, 1884. The case was tried in December term, 1884^ of the circuit court.
It was proved that Peter Lowe, the plaintiff, was arrested on the 29th
day of March, 1884, by virtue of a warrant issued by a justice of the
iCardivalv. Smith, 109 Mass., 159 Dorion, 16 Pick., 478, 487 (1885);
(1872); Nicholson v. Coghill, 4 B. Arundell v. White,. 14 East, 216;
d;C., 21; 6D. &R., 12; Watkins V. Savage v. Brewer, 16 Pick., 458
Lee, 5 M. & W., 270; Ross v. Nor- (1835).
man, 5 Excb., 859; Bicknell v.
330 SND OF THE FBOSBOUTIOK.
|)eace upon complaint of John V. Wartman, the defendant, made by him
in writing, under oath, that Lowe had been guilty of larceny. Lowe
entered into the usual recognizance for his appearance at the then next
term of the oyer and terminer, to be held in April, 3884.
It appears that the justice of the peace did not send the papers to the
prosecutor of the pleas, or to any oflScer of the court, until after the April
term. It does not appear that the matter was brought to the attention of
the grand jury until the September term following, when Wartman w^s
subpoenaed as a witness. He attended, and was examined in reference to
the complaint. At that time this suit had been commenced, the process
being tested on the 80th of June. There had never been a rule entered dis-
charging Lowe from the complaint, or to release his securities. The jury
found for the plaintiff, whereupon a rule to show cause was granted, and
the case certified to the supreme court.
Parker J. : The only question for decision is whether this suit was pre-
maturely brought. There is no doubt that this question may be raised
under the plea of general issue. Several cases are found in our reports
which settle the law in New Jersey. An action for malicious prosecution
is premature if commenced before the criminal prosecution is ended.
What constitutes the ending of the prosecution sometimes may admit of
aome doubt. But in this case it is clear that on the 80th of June the
criminal prosecution had not terminated. The complaint was pending be-
fore the grand jury three months after this suit had been commenced. A
criminal prosecution may be said to hare been terminated (1) where there
is a verdict of not guilty \ (2) where the grand jury ignore a bill ; (8) where
■a nolle prosequi is entered ; and (4) where the accused has been discharged
from bail or imprisonment This case does not come under either of above
heads. Lowe v. Wartman, 47 N. J. L. 418, 1 Atl. Rep., 489 (1885).
§ 6. The law stated by Cowen^ J. — ^^ I by no meaos accede
to the doctrine inadvertently advanced by some judges, that
all rights to prosecute for the offense roast be terminated by
a technical acquittal,' nor can it be essentially necessary that
there should be an adjudication of the magistrate, or, indeed,
any judicial decision upon the merits, by any court, as seems
to be supposed by some.' The manner in which the proseco*
tion is disposed of, as if it be by compromise, may impose
great if not insurmountable obstacles to showing a want of
probable cause; but the technical prerequisite is only that the
particular prosecution be disposed of in such a manner that
this cannot be revived, and the prosecutor must be put to a
new one. Thus, supposing the warrant to be duly executed
and the party to appear, though the bill of indictment be re-
r 1 Buller, J., in Morgan v. Hughes, (1807) ; McCormick v. Lisson, 7 Cow.»
2 T. R., 225-332. 715 (1827).
'Secor V. Babcock, 2 Johns., 203
BND OF THB PBOSEOUTION. 831
turnable ignoramus, or be preferred coram non judice^ or^
after being found, an acquittal follow for its insufl9ciency, the
cause is at an end within the rule, for it would be strange if
a party could be protected from prosecution for his malice by
procuring the cause to be discontinued on account of some
irregularity. So where the prosecution stops with the jus-
tice, if the accused be there discharged for any cause, though
the justice err, the warrant is functus officio^ and the particu-
lar prosecution at an end. The mere discontinuance of a civil
suit in any way satisfies the rule; and the defendant may sue
the plaintiff, if he can make out malice and want of probable
cause." ^
§ 6» The subject discussed. — The reasons why an action
should be terminated in favor of a defendant before the de-
fendant can commence an action for malicious prosecution
would seem to be as follows: Firsts if the action is still pend-
ing, the plaintiff therein may show in that action that he had
probable cause for commencing the suit, by obtaining a judg-
ment therein against the defendant, and he should not be
called upon to show such fact in a second action until he has
had this opportunity of showing it in the first; second^ and if
the action has terminated against the defendant, then there is
already an adjudication against him showing conclusively that
the plaintiff had probable cause for commencing the action.
When neither of these reasons apply, we suppose the action
for malicious prosecution in some instances may be main-
tained, if the other necessary facts can be shown. If the
plaintiff has neither shown, nor is attempting to show, by an
action in which he is plaintiff (or prosecutor), that he had
probable cause for commencing his action, then the defendant
may show in an action brought by himself that the plaintiff
did not have probable cause. If a criminal prosecution has
been dismissed, with no intention of commencing it again, or
if delay has been made in commencing the criminal prosecu-
tion again, so as to lead the plaintiff to believe that the crim-
inal prosecution had been finally terminated, and if he had
then, and at once, commenced his action for malicious prose-
cution, he might probably maintain the same.' But in all
^Cowen, J., in Oak v. Cleveland, 563; Schippel ▼. Norton, 88 E^an.^
4 HiU (N. Y.), 844 (1844). 667; 16 Pac. Bep., 804 (1888).
s Marboarg v. Smith, 11 Kan., 554,
332 ' Bin> OF THE PBO8S0DTION.
reason he should not be allowed to maintain sach an action
when substantially the same criminal prosecution as the one
upon which he founds his action is still in the courts andis-
posed of.
§ 7. The means by which the end of the prosecntion is
accomplished. — The most usual way in which a prosecution
is determined is by a verdict and judgment for the defendant^
but the terminations of legal proceedings are as varied as the
proceedings themselves. We shall in this chapter consider
terminations:
I. By nolle prosequi.
11. By dismissal and abandonment
III. By vacation of orders of arrest.
IV. By discharge on orders of court.
V. By discbarge by magistrates.
VI. By discharge on habeas corpus.
VII. By miscellaneous matters of discharge.
I. NOLLK PkOSBQITI.
§ 8. Nolle prosequi — The term defined.— (1) In civU pro-
ceedings: An acknowledgment or undertaking entered on
record by the plaintiff in an action to forbear to proceed in
the action either wholly or partially. It has been superseded
in most cases by the modern practice, but it still seems to be
applicable in sonie cases.^
(2) In criminal prosecutions by indictment or information,
a nolle prosequi to stay proceedings may be entered in England
at any time by leave of the attorney-general.* In some of the
states of our Union leave of the court must first be obtained^
but generally the prosecuting officer may enter the nolle prose-
qui at his discretion at any time before the jury is impaneled,,
and afterwards by consent of the defendant.'
§ 9. Elfect of the entry of a nolle prosequi — The law
stated by Parsons^ C. J.^ Massachusetts (1806). — "It can-
not be considered as having the effect of a pardon, because,
by our constitution, the governor with the advice of the
council has the sole power of granting pardons, and he can-
12 Rapalje & L. Law Die, 870 '2 Rapalje & L. Law Dic.» 87^
(188S); Arcb., Practice. 1201. (1888).
- Arcn., Grim. PI., 109.
. i
1
BND OF THE PEOSECUTIOlir. 833
not have this power until after conviction. Neither can a
noUe prosequi be deemed an acquittal. The practice of enter-
ing a noUe prosequi to informations is very ancient, but to in-
dictments it began in the latter end of the reign of Charles
the Second." *
§ 10. When it Is a sufficient termination of the prosecn-
tion.— The law in regard to the question as to whether the
entry of a nolle prosequi is such a termination of the prosecu-
tion as will sustain an action for a malicious prosecution does
not appear to be perfectly settled in the diflferent states. The
unsettled state of the question may be and probably is
owing (1) to a great extent to the effect given to the entry
of the nolle prosequi in the different jurisdictions, and (2) to
the prejudice which seems to have existed against suits for
malicious prosecution.
To illustrate the subject more intelligibly, some of the
leading adjudications on this subject are presented, and an
effort will be ndade to deduce from them a general rule of
law applicable to all cases.
Illusteations fbom Ameeican cases. —
(1) A nolle prosequi an end of the prosecution — Discussion of the question.
In an action for malicious prosecution it appeared that Murphy, who
was in poesession of a brick-yard in Pittsburgh, on July 18, 1884, made an
information before Alderman Reilly, in which he charged WiUiam J. and
George E. Moore with wilfully and maliciously interfering with his em-
ployees, threatening to kill said employees, and by said threats compelling
said employees to leave the premises. The defendants were held to answer
at court, and on this information the grand jury found a true bill charging
that the said Moores did wilfully and maliciously enter upon the premises
of said Murphy, and did unlawfully, wilfully and maliciously destroy one
of his kilns of brick. Afterwards, on February 12, 1885, at Murphy's re-
quest, on motion of the district attorney, the court allowed a nolle pros, to
be entered on payment of costs by Murphy, and thereupon the plaintiff
brought this suit. The jury found a verdict in his favor, subject to the
question of law reserved, to wit, whether the entry of the nolle pros, given
in evidence was or was not such an ending of the prosecution as to entitle
the plaintiff to maintain the action. The court below was of the opinion
that the court of quarter sessions had no power to enter the nolle pros, in
question, but nevertheless decided the reserved question against Murphy
on the ground that the manner of the entry of the nolle pros, was equiv-
alent to an abandonment of the prosecution.
1 Ck)ra. V. Wheeler, 2 Mass., 172 (1806).
834 END OF THE PBOSEOUTIOK.
On the question of law reserved, the court deliTered the f oUowing opin^
ion:
"After the eyidence was closed the defendant's attorney asked us to*
charge the jury * that the entry of the nolle pros, given in evidence in the-
case, in the prosecution complained of, is not such an ending thereof as to-
entitle the plaintiff to maintain the action.' This we refused to do, and
reserved the question of law thus raised for the consideration of the court
in bank. The jury having found a verdict for plaintiff, subject to our
opinion on the question thus presented, it now arises for our determini^
tion. It seems originally to have been thought that an acquittal by a jury
was necessary before an action for malicious prosecution could be main-
tained (2 Starkie, Ev., 677, tit 'Malicious Prosecution'), and it was said
that the entry of a nolle pros, was insufficient, because fresh process might
be issued upon the indictment. Goddard v. Smith, 6 Mod., 262.
'* A careful examination of the leading case shows that the real point
ruled was that a nolle pros, entered by the attorney-general was not suffi-
cient to sustain the ailegation in the narr that plaintiff had been acquitted ;
but it seems to have been generally understood and recognized as an au-
thority upon the point under consideration. And it has been expressly so
decided in Massachusetts. Parker v. Huntington, 2 Gray, 124, and Bacon
V. Towne, 4 Cush., 217, both of which were cited with apparent approba*
tion in Kirkpatrick v. Kirkpatrick by Justice Thompson, sitting at nisi
prius in Philadelphia. See 89 Pa. St., 291.
*' But while this is so, it seems to me so clear that there is no reason for
the rule, and that the only foundation upon which it ever was supposed to
rest, to wit, that the prosecution must be so disposed of as to bar another
proceeding for the same offense, has been so entirely swept away by late
decisions, both in England and the United States, that I do not think it
can be regarded as the law now. Even if we were to consider it as a dis-
tinct expression of the views of Justice Thompson in the case above cited,
it was a mere dictum and not at all necessary to sustain the conclusion
reached here. Thus we have it said in Berner v. Dunlap, 94 Pa. St., 881,
that in an action against the prosecutor, if the plaintiff proves a discharge
by the examining magistrate, it is sufficient not only to justify suit, but is
evidence of the want of probable cause, which casts the burden of proof
upon the defendant. And in Stewart v. Thompson, 51 Pa. Sc, 158, th&
court says : A bill was presented to the grand jury, which was ignored as
to plaintiff, and the prosecution was wholly ended and determined and
the plaintiff discharged. In both of these cases the prosecution could have
been reinstated or renewed, and the subsequent proceedings would not have
been barred either by the discharge or the ignoramus. A nolle pros, duly
entered is as much a determination of the prosecution as either. But we
have quite a number of cases in other states in which the doctrine that .a
nolle pros, is a sufficient ending of the prosecution to maintain the action
is expressly declared. ' Where the prosecuting attorney enters a nolle pros, ,
and the magistrate made such entry on the files and the defendant was
actually discharged, it is sufficient.* Driggs v. Burton, 44 Vt., 124, and to
same effect cases cited below.
*'The grounds for this action are the malice of defendant, the want of'
END OF THE PBOSEODTIOHT 335
probable cause, and injury sustained by plaintiff. The authorities referred
to in the main agree that where the particular indictment or charge spe-
cifically made is disposed of, and defendant allowed to depart without any
obligation to answer further, there is a sufficient termination of the prose-
cution. It is argued, however, that while a nolle proa, properly entered
may be sufficient to maintain the action, the one entered in this case was
absolutely void, as being contrary to the law of this state. But looking at
this case even in that point of view, and treating the nolle proa, as a nul-
lity, so far as its strict legal effect is concerned, I think that it may well
be treated as an abandonment of the prosecution by the defendant in this
case, and as prima facie evidence of an acknowledgment of the fact that
he had no sufficient cause for prosecution.
"It is sufficient if the plaintiff be discharged without day by with-
drawal or abandonment of the prosecution, not made by arrangement
with him. Brown v. Randall, 86 Conn., 56. So even in Massachusetts
(Sayles v. Briggs, 4 Meta, 421), it was held that when a prosecution was
abandoned before the magistrate,- and the defendant discharged, the ac-
tion could be maintained. On the same line we refer to Kelly v. Sage; 12
Kan., 109; McWilliams v. Hoban, 42 Md., 56; Gilbert v. Emmons, 42 111.,
143; Fay v. O'Neill, 36 N. Y., 11; Leever v. Hamill, 57 Ind., 423; and par-
ticularly Lowe V. Wart man, 1 Atl. Rep., 489 (decided by the supreme
court of New Jersey, November, 1885), where it is summed up as follows:
' A criminal prosecution may be said to have been terminated (1) where
there is a verdict of not guilty ; (2) where the grand jury ignore the bill ;
(8) where a nolle proaequi is entered ; and (4) where the accused has been
discharged from bail or imprisonment.' Here the entry of the nolle proa,
must be taken from the record (as was the actual fact) to have been with-
out plaintiff's knowledge or consent, while he was under bail and waiting
for trial. The first thing he knew, the cause was, so far as the charge
contained in the indictment is concerned, disposed of, and he turned out
of court without day. I think it manifest that a due regard for personal
safety, and a proper discrimination of the rules of law involved in this
case, justify the entry of judgment for plaintiff upon the question of law
reversed upon payment of verdict fee; and it is now so ordered."
Defendant brings error.
Feb CrmiAM. The opinion of the court below on the reserved question
is, in our opinion, unexceptionable; hence we adjudge that the assign-
ments of error are not well taken. Judgment affirmed. Murphy v.
Hoore (Pa.). 11 Atl. Rep., 666 (1887).
(2) A nolle proaequi not auch an end of the proaecution aa ia neoeaaary to
^riatain an action for malidoua proaecution^
In his declaration, Parker alleged that Farley in 1845 made a complaint
before the grand jury charging him with perjury in 1843. An indictment
was the result, upon which Parker was tried in 1845 and convicted. He
took exceptions to the ruling of the court, which were overruled, and he
then moved for a new trial, alleging that he had been convicted on false
testimony and newly discovered evidence. Upon this motion a new trial wks
granted. The case was then continued for several years. In 1849 the pro&-
336 XHD OF THE PBOSBOUTIOH.
routing attorney entered a noUe proaequi, Whfle the case was still on Uie
docket. Parker applied to the court for an order requiring the proeecuting
attorney to enter a nolle proaequi^ on the ground of some alleged agree*
xnent to that eflfeot on the part of the proeecuting attorney. The action for
malicious prosecution was commenced in 1850. While it was pending for
trial before the chief justice, both parties desired the opinion of the court
upon the question : " Was the termination of the suit, complained of as
malicious and without probable cause, by a noUe prosequi^ such an ac-
quittal or determination of the prosecution as would enable the plaintiff to
maintain this suit." Upon this point the court say: " The court are of
the opinion that, according to the well-settled series of authorities, a plaint-
iff cannot maintain an action for a malicious criminal prosecution by in-
dictment, by showing that the prosecution has been determined by a fioUe
prosequi,'* *' Were this a new question to be decided upon principle, it
might be doubted whether it would be just and wise to establish this as an
inflexible rule of practice, because, perhaps, cases can be imagined, as
where a party has been long kept in court, always desirous and ready for
a trial, and when a nolle prosequi is entered without his consent and against
his remonstrance, when he ought not to be deprived of his right of show-
ing that the suit was groundless and malicious. But the common law
seems to have gone upon the ground that a party criminally proeecuted
ahall have a right to maintain an action and recover damages against one
who has acted as complainant in behalf of the commonwealth, and osten-
fiibly for the public good (an action certainly not to be favored); he shall
begin by offering a verdict in his favor by a jury who have considered the
cause on its merits. But even if it were now open to consider any such
modified rule, we should be of the opinion that it would not apply when a
nolle prosequi and discontinuance is entered by consent, or by way of com-
promise, or where such exemption from further prosecution has been de-
manded as a right or sought for as a favor by the party proeecuted. In
the present case, it appears by the record that the plaintiff endeavored to
obtain such exemption from trial by requiring the district attorney to enter
a nolle prosequi,*' Parker v. Farley, 10 Cush. (64 Mass.), 281 (1852). Citing
Bacon v. Towne, 4 Cush., 217.
(3) End of prosecution, what is — When a nolle prosequi is not.
It was alleged that Dawson, the defendant, maliciously, and without
probable cause therefor, caused a complaint to be sworn out before a trial
justice charging Craves, the plaintiff, with larceny. The justice issued
his warrant and the plaintiff was arrested and brought into court, when,
failing to enter into a recognizance for his appearance, etc., he was com-
mitted to jail. At the following term of court, the grand jury failing to
indict him, the district attorney entered a nolle prosequi. Upon a demur-
rer judgment was given for the defendant. One of the grounds of de-
murrer was, ** because neither the plaintiff^s discharge by the justice of
the superior court, nor the entry of a nolle prosequi by the district attorney,
fully, effectually and finally terminated the prosecution against the
plaintiff so as to entitle him to maintain this action."
On exception it was held that whether a nolle prosequi is or is not such a
1
END OP THE PROSECUnOlT. 337
determination of a criminal proceeding as is necessary to sustain an action
for malicious prosecution depends on the other facts in the case, but the dis-
charge, upon the failure to find an indictment, is such a determination of
the proceedings. The demurrer was overruled. Graves v. Dawson, 180
Mass., 78 (1881). Citing Cardival y. Smith, 109 Mass., 158^: Parker v. Far-
ley, 10 Cush., 279.
End of prosecution — Nolle prosequi.
On the trial of an action for false imprisonment, Caupal, the plaintiff, of-
fered to show that Ward, the defendant, having failed in a civil action
brought by him against Caupal, and being angry thereat, went to a juscio.
of the police court and so misrepresented the manner in which he, Caupal,
became indebted to him, that the justice gave him a written paper to take
to the clerk of the court, by which the clerk was authorized to hear and
receive a complaint and issue a warrant against him. The clerk dissuaded
Ward ; but he replied that he did not care whether he had any cause or
not : that what he wanted was his pay. By these means he got the com-
plaint filled out, to which he swore, and which stated that Caupal bad ob-
tained goods from him by false pretenses. A warrant was issued upon
the complaint, upon which Caupal was arrested and taken to the sta-
tion house; but upon being brought before the court, a nolle prosequi was
entered upon the suggestion of the counsel who had appeared for Ward in
his civil suit, that he had examined the case and had come to the conclu-
sion that no offense had been committed. The trial judge on these facts
ruled that the action for false imprisonment could not be maintained.
Caupal V. Ward, 106 Mass., 289 (1871).
(6) A nolle prosequi— When an end of the prosecution.
Mills brought an action against Woodworth for malicious prosecution
for causing him to be arrested upon a charge of grand larceny. He alleged
that one Daniel T. Hockert made the complaint upon which the arrest was
made, but charges that the defendant maliciously and without probable
cause advised and caused the said Hockert to make such complaint and to
have the plaintiff arrested ; the issuing of a warrant by a justice of the
peace against the plaintiff for larceny, his an'est tliereon ; the fact tliat he
was brought before the justice, an examination had, that the justice after
examination adjudged that an offense had been committed, that there was
probable cause for believing him guilty, and thereupon held him to bail for
his appearance at court; that he gave bail as required by the justice; that
at said next term the defendant falsely and maliciously, and without prob-
able cause, caused and procured the district attorney to present an infor-
mation against him on said charge of larceny ; that the trial of the cause
was continued at the term at which the information was presented, by the
consent of the parties, to the next regular term, and that at that term the
district attorney, with the leave of said court, entered a noilie prosequi in
said action, and that said action was tiien and there determined with the
advice of the defendant and abandoned by him, and that since that time
he has not further prosecuted said charge,
22
838 END OF THE PBOSEODTIOK.
The defendant's answer was, first, a general denial. The answer then
alleged and charges the fact to be, that Daniel T. Hockert made complaint
in writing to the justice, setting forth the substance of such complaint, the
issuing of a warrant upon such complaint, the arrest of the plaintiff, his
examination before the justice, the judgment of the justice upon such
hearing; that he held the defendant to bail for his appearanoe at the next
term of court ; that at said term an information was presented against the
plaintiff by the district attorney ; that the trial on said information was
continued until the March term on the application of the plaintiff; that at
the next March term, 1882, the c^e was continued, on the application of
the district attorney, to the September term of the same year, and at such
Sefitember term the district attorney, with leave of the court, entered a
nolle prosequi in said action tvithout the eonnent or advice of the defendant-^
and that said action has not been commenced again to the knowledge of
the defendant.
It is not denied by the learned attorney for the respondent that it is nec-
essary to show a final determination of the criminal action against the
plaintiff before the action for the malicious prosecution of the same can be
maintained by him. Miller v. Milligan, 48 Barb., 80; Pratt v. Page, 18
Wis., 887-844: Winn ▼. Peckhani, 42 Wis., 498-49». It is unnecessary to
cite other authorities to sustain this proposition, as both parties admit that
such is the rule of law, and the authorities are not in conflict upon that
point. But it is claimed by the learned counsel for the appellant that the
facts stated in the complaint do not show a final termination of the crim*
inal action upon which this suit is founded, and they rely upon the follow-
ing authorities to sustain their contention: Bacon v. Towne, 4 Cush., 217:
Parker v. Farley, 10 Cush., 279; Biown v. Lakeman, 12 Cush., 483; Parker
V. Huntington, 2 Gray, 124; Dennehey v. Woodsum, 100 Mass., 195-198;
Cardival v. Smith, 109 Mass., 158. These cases, as well as others cited by
the appellant, would seem to hold that the entering of a nolle prosequi by
the district attorney, with the consent and leave of the court, upon the
indictment or information for a crime, is not a final determination of such
criminal action, and therefore no action for malicious prosecution can be
maintained, because it is urged that the defendant may be again arrested
upon such indictment or information, and tried, and that upon such trial
the accused might be convicted, which conviction would be conclusive
evidence that there was probable cause for the prosecution : and upon this
point the learned counsel for the appellant cite the following cases: Whart.
Crtm. Law, §518; State ▼. McNeill, 8 Hawks, 188; Com. v. Wheeler. 2
Mass., 172; Teague v. Wilkes, 8 McCord, 461; Smith v. Shackleford, 1 Nott
& McC, 86; Hey ward v. Cuthbert, 4 McCord, 854: State v. Blackwell, 9
Ala., 79: Wortham v. Com., 5 Rand. (Va.), 669; Lindsay v. Com., 2 Va.
Cas., 845; State v. Haskett, 8 Hill (S. C), 95; United States v. Shoemaker,
2 McLean, 114.
It will be seen by an examination of these authorities that the question
as to whether, after a nolle prosequi had been entered upon an indictment
or information, the party could be afterwards proceeded against upon the
same indictment or information, was not the point decided ; and if such
rule was stated as the law, it was only incidental to the real question. All
END OF THE PB08ECUTI0N. 339
the authorities hold that a nolle prosequi, entered with leave of the court
before the jury is impaneled in the case, is not a bar to a subsequent prose-
cution for the same offense upon a new indictment or information, and
there are a few cases which hold that the nolle prosequi may be recalled,
and the defendant tried upon the same indictment or information. All
that was decided in United States v. Shoemaker, supra, was that a nolle
prosequi entered on an indictment was not a bar to a subsequent indict-
ment for the same cause. Such was the fact, also, in the case of Com. v.
Wheeler, supra. In this last case Justice Sewell says: "A nolle prosequi
is often entered by th^ attorney for the government on discovering some
informality in his indictment. I consider that it applies to the particular
indictment only, and not to the offense." Sedgwick, J., says: ** I think it
has been held that a nolle prosequi is not a bar even to the indictment on
which it is entered, though I believe this opinion has been since over-
ruled." Bishop, in his work on Criminal Procedure, in speaking of the
effect of the entry of a nolle prosequi, says: "We see, therefore, that a
nolle prosequi during trial bars a subsequent prosecution for the same of-
fense, whether on the same or any other indictment A fortiori, it does,
when entered between the verdict and sentence. Entered before trial, it
and the proceedings it discontinues are no inpediment to a subsequent
prosecution for the same offense. It simply puts an end to the particular
indictment, count or part of a count to which it applied, without preju-
dice to new proceedings ; but the part or whole of the present proceeding
which has been reached by it cannot be revived. In the language of an
old case, ' the king cannot afterwards proceed in the same suit, but he may
begin anew.'" See sec. 1395. In a note to this section, the learned
author refers to some of the cases cited by the learned counsel for the ap-
pellant in this case, which seem to hold that proceedings might be after-
wards had upon the same indictment or information, and disapproves what
was said upon that question in those cases ; and cites the following cases
to sustain his statement in the text, that "the nolle prosequi puts an end
to the particular indictment, count or part of a count to which it is ap-
plied, without prejudice to a new proceeding ; but the part or whole of the
present proceeding which has been reached by it cannot be revived." Reg.
V. Pickering, 2 Barn. & Ado!., 267; Bowden v. State, 1 Tex. App., 187;
State V. Shilling, 10 Iowa, 106; Com. v. Dowdican, 115 'Mass., 138; Brit-
tain T. State, 7 Humph., 159; Reg. v. Mitchell, 8 Cox, Crim. Cas., 98; State
V. Primm, 61 Mo., 166; Moulton v. Beecher, 8 Hun, 100; Reg. v. Allen, 1
Best & a, 850.
In the case last cited, which was decided in 1862, Cockburn, C. J., says:
"No instance has been cited, and therefore it may be presumed that none
can be found, in which, after a nolle prosequi has been entered by the fiat
of the attorney-general, this court has taken upon itself to award fresh
process, or has allowed any further proceedings to be taken on the indict-
ment." Crompton, J., says: "The nolle prosequi being on the record,
there is an end of this prosecution ; but the question remains whether that
is final or not. I rather think, however, that Mr. Arch bold, in his Practice
of the Crown Office, is right when he says (page 62) ' that it has the effect
of putting an end to the prosecution altogether.* It is said that, notwith-
340 BND OF THB PBO8E0UTION.
standing that the attorney-general may interfere in any prosecution in any
court in England and stop it, the court may afterwards award process.
Goddard t. Smith, 6 Mod., 261, only decided the entry of a nolle prosequi
is not a decision on the merits of the prosecution. The court, in the course
of the argument, said the attorney-general might issue new process upon
the indictment; but, as I have said, I rather think the nolle prosequi puts
an end to the prosecution." Blackburn, J., gave no opinion on this point.
The remarks of the judges above quoted were made in a case where the
attorney-general had acted without the leave of the court.
It seems to us very clear that the rule as stated by Mr. Bishop and the
judges in the case above cited must be the true rule, when the nolle pros'
equi is entered upon an Indictment for any cause. If it be entered because
the indictment is bad upon its face for want of sufficient allegations, either
in form or substance, then there can be no reason for arresting the defend-
ant for trial upon such imperfect indictment. And if the nolle prosequi
is entered because there is no proof of the guilt of the defendant, he cer-
tainly ought not to be proceeded against further, and the action, though
a criminal one, is discontinued for all purposes. Whether in this state,
where the information is presented by the attorney for the state after an
examination of the defendant before a justice, and a nolle prosequi is en-
tered because of some imperfection in the information which renders it
bad in law, a new information may not be presented without a new com-
plaint and examination of the defendant, need not be determined in this
case, as we think it must be presumed from the evidence in the case that
the nolle prosequi was entered by the district attorney with the leave of
the court, because the attorney and the court were satisfied that there was
not sufficient proof of the defendant's guilt. And when the prosecution
is discontinued for that reason, or for any other reason except for some
irregularity or informality in the information itself, such discontinuance
puts an end to all further proceedings in that case ; and if the defendant
can be thereafter further prosecuted for the offense charged in the infor-
mation, it must be upon a new complaint, arrest and examination. In this
view of the case the entry of the nolle prosequi with the leave and consent
of the court was a final determination of that action, within the meaning
of the rule laid down for the government of actions for malicious prose-
cution.
In the case of Moulton v. Beecher, above cited, a comphiint for malicious
prosecution was sustained upon demurrer, which alleged that a, nolle proB"
equi had been entered in the criminal action in substantially the same lan-
guage used in the case at the bar, and the court held the complaint suffi-
cient. We think, upon principle as well as authority, the entry of a noUe
prosequi upon an information, not upon the ground that the information
js insufficient upon its face, is an end to the prosecution of that case, and
that such noZ^e prosegtit cannot afterwards be vacated, and further pro-
ceedings had in that case, unless vacated at the same term at which itte
entered. Bish. Grim. Proc, § 1896; State v. Nutting, 89 Me., 859; Pany t.
State, 21 Tex., 746. The exception made to the sufficiency of the com-
plaint was properly overruled. Wood worth v. Mills, 61 Wis., 44; 20 N.W,
Rep.. 728 (1884).
J
END 09 THE PBOSEGUnON. 841
(6) Discharge by magistrate tipon entry of a nolle prosequi.
William S. Driggs brought an action against Oscar A. Burton for mali-
cious prosecution. He recovered |4,500. On the trial the justice before
whom the prosecution complained of was had testified that the plaintiff
was brought before him July 22, 1868 ; that Burton, the defendant, was
not present. The case was continued until the next day on the application
of the state's attorney to enable him to procura testimony. On the next
day the plaintiff was present with his counsel. The defendant was not
present. The case was again continued to the 25th to enable the state's
attorney to procure the attendance of the defendant and some witnesses
from a distance. On the morning of the 25th the state's attorney entered
a nolle prosequi and no hearing was had, the plaintiff and his counsel not
being present at the time. In the supreme court it was insisted that the
prosecution before the justice, having terminated in a nolle prosequi in the
manner stated, was not such a determination of the case as to warrant the
recovery.
In passing upon this question, Wheeler, J., said: " From the oral evi-
dence received without objection and not contradicted, it appears that the
plaintiff was in fact discharged from custody, and that the proceedings
against him before the justice came in fact to an end. There was no for-
mal discharge by the justice, but the proceedings that were had in effect
discharged him. The entry made by the justice upon his files was merely
'* nolle prosequi by the state's attorney," but that entry was a mere mem-
orandum made by the justice by which to write out the formal record of
the proceedings at large. The full record would show the discharge of the
plaintiff and the end of the proceedings. Neither the form of the memo-
randum nor the want of a full record ought to or can vary the effect of
what was done. The justice could neither acquit nor convict, but could
only bind over or discharge. He did, in effect, discharge the plaintiff, and
there was a complete termination of that prosecution, and as favorable a
one as could be had for the plaintiff. Upon principle it seems that the ter-
mination upon the nolle prosequi of the state's attorney under these cir-
cumstances was sufficient'* Driggs v. Burton, 44 Vt., 124 (1871).
Note. — The case was reversed, but upon other grounds.
(7) Entry of a nolle prosequi— Judgment that the defendant **go hen6t
thereof, vritJiout day,^* sufficient
In an action for malicious prosecution, it was claimed that Chapman, with-
out any reasonable or probable cause, procured Woods to be indicted for per-
jury. At the trial it was proved by the record that, at the same term the
indictment was found, a nolle prosequi was entered by the prosecuting
attorney, whereupon the court rendered the following judgment: *'Itii
therefore considered that said defendant as to said indictment go hence
thereof acquit, without day." The court refused to instruct the jury that
the entering of the nolle prosequi to the indictment by the prosecuting at-
torney was not such an acquittal as is necessary to maintain the action for
malicious prosecution, but did instruct that the evidence offered was suffi-
cient to prove that the plaintiff had been prosecuted and that the prosecution
^A2 END OF THE PK08ECUTI0N.
was ended. The verdict and judgment were for the plaintiff and the defend-
ant brought a writ of error.
In passing upon the question of the entry of the noUe prosequi, Sulli-
van, J.y said : There is no doubt but that to support the action it must be
shown that the proeecution is determined. All the authorities concur in
the point. And perhaps it is equally true that the entry of a nolle prosequi
by the prosecuting attorney without any judgment of the court discharg-
ing the defendant from the indictment is not regarded as a termination.
In Goddard v. Smith, 8 Salk., 245, which was an action for malicious
prosecution upon an indictment for barratry to which a nolle proaequi liad
been entered by the attorney-general, it was held that tlie prosecution was
not determined. The reason given was that upon the same indictment
new process might be taken out. In the same case it was said by the
court that the termination of the prosecution must he by an acquittal on
the merits of the case, but this does not seem to be necessary. Chambers
V. Robinson, 2 Strange, 691 ; Wicks v. Fenthan, 4T. R., 247. If it be shown
that the original prosecution, wherever instituted, is at an end, it will be
sufficient. Fisher v. Bristow, 1 Doug., 215, and note. Is the prosecution
to which reference is made in this case at an end? We answer, it is, al-
though a new indictment may be preferred against the defendant. New
process cannot be issued upon the former indictment. The judgment of
the court puts an end to further proceedings against the defendant upon
it. Where a man is maliciously indicted he may not be able to obtain a
trial on the merits if the prosecuting attorney is determined to, and actu-
ally does, nolle prosequi the indictment. It is therefore not unreasonable
that he should in that event ask for and obtain a judgment of the court
discharging him from further answering to the indictment, and in such a
case, if an action lies, an innocent man may be harassed without the hope
of redress. W^e are therefore of the opinion that the original prosecution
was determined and that there was no error in the instructions given to the
jury. Chapman v. Woods, 6 Blackf. (Ind.), 504 (1843).
§ 11. Sammarjr of the law — The entry of a nolle pros-
eqni when a snffleient end of the prosecntiou and when
not. — If any general rale of law upon this subject can be de-
duced from the authorities, it would seem to be that where the
entry of the nolle prosequi is the mere act of the prosecuting
attorney and no action of the court is had upon it, the entry
will not be an end of the proceedings, and for that reason
would not warrant any action which could not be had before
the proceedings were at an end.^ But when a judgment of
discharge or some other action has been entered or had by
the court upon the nolle prosequi, it seems to be a suiBcient
termination of the prosecution.
1 Driggs V. Burton, 44 Vt., 143 (1871).
END OF THE PKOSECUTION. 343
§ 12. A better rale. — A better and more equitable rale of
law in such cases would seem to be that the particular prose-
cution is sufficiently ended for the purpose of maintaining an
action for malicious prosecution by the entry of a nolle pros-
equij either with or without orders of court, when it cannot
be renewed without again taking the initiatory steps re-
quired b\' law in the first instance to set the machinery of the
law in motion, as, for example, making a new complaint, pro-
curing another indictment or filing a new information. It
would seem reasonable to hold that a prdsecution is ended
when, in order to make a further prosecution for the offense
claimed to have been committed, the complainant must begin
anew. Such beginning is another and a new prosecution. The
end of the prosecution is only one of the elements which go
to make up the cause of action for a malicious prosecution.
After this is established the plaintiff must still show malice
and want of probable cause.
IL Dismissal or Abandonment.
§ 13. Dismissal of a prosecution^ etc. — In some jurisdic-
tions the practice of dismissing criminal prosecutions seems to
prevail. In civil cases, if the plaintiff does not prosecute his
suit within the time in which he is bound to do so, or if he
does not set down the action for trial or file his declaration
within the time required by law or the rules of the court, or
if he abandons his suit, the defendant may make his applica-
tion for the dismissal of the action for want of prosecution.
And where the plaintiff fails to make out his case the suit may
be dismissed by the entry of a nonsuit. Preliminary exam-
inations of persons charged with violations of the criminal
law before magistrates are sometimes terminated by dismis-
sals. In these cases the question as to whether the dismissal
is a sufficient termination of the prosecutions or suits com*
plained of as malicious must depend largel}^ upon the circum-
stances of each particular case.
Illustrations feom American oases. —
(1) Dismissal of a criminal prosecution a sufficient termination, etc
On the 29th of October, 1880, the defendant in error Rice was arrested
upon a criminal charge made against him before the county judge. The
crime charged by tlie complaint was that of unlawful assembly, or, per-
3^1 SND OF THE PROSEODTION.
haps, what is denominated ** rout." The complaint was signed and sworn
to by Mat bias Drahoble, the husband of one of plaintiffs in error. Such pro-
ceedings were had as resulted in a dismissal of the cause and the discharge
of the accused, by reason of the failure of the prosecution to give securi^
for costs. Defendant in error then brought suit, alleging damages sus-
tained by reason of the arrest, etc. , and that the prosecution was malicious
and without probable cause. The jury returned a verdict assessing Rice's
damages at $102. Defendant prosecuted error to the supreme court.
In affirming the finding of the court below, Reese, J., said: *'Tbe first
contention is that the dismissal of the criminal prosecution was not such
a final determination thereof as would entitle defendants in error to re-
cover. While there are some cases which seem to hold with plaintiff in
error upon that point, yet we deem it settled by the great weight of au-
thority that there was such a final termination of the prosecution as would
enable defendants in error to maintain this action if the prosecution was
found to be malicious and without probable cause. In Casebeer t. Dra-
hoble, 13 Neb., 465; S. C, 14 N. W. Rep., 897, it was hold that the right of
action accrues ' whenever the particular prosecution be disposed of in such
a manner that this cannot be revived, and the prosecutor, if he proceeds
further, will be put to a new one.'" Casebeer ▼. Rice, 18 Neb., 203; 24
N. W. Rep., 693.
(2) A diamifucU not necessarily an end of the prosecution.
On or about December 27, 1879, Norton, Wagstaff, and another, through a
mistake of boundary lines, went upon the land of Schippel, and cut down
and carried away one or more trees standing and growing thereon. Imme-
diately thereafter, Schippel consulted the county attorney, stated to him the
facts, and the county attorney advised the commencement of a criminal pros-*
ecution against Norton and the others, under sea 1, ch. 113, Comp. Laws,
1870, of Kansas. Such prosecution was so commenced before E. h, Norton,
a justice of the peace of said county, on December 31, 1879 ; the county
attorney having charge thereof. About January 6, 1880, the county at-
torney dismissed this prosecution, and on the same day commenced a new
prosecution in the district court against Norton and the others for the same
offense. Afterwards, and on March 8, 1880, Norton commenced this pres-
ent action against the defendant Schippel. The plaintiff recovered and
the defendant appealed.
In the opinion of the supreme court reversing the judgment, Valentine,
J., said: *' In legal contemplation we do not think that the criminal pros-
ecution in the present case had terminated when this action for malicious
prosecution was commenced, and therefore this action cannot be main-
tained." Schippel V. North, 88 Kan., 567 16 Pac. Rep., 804 (1888). Citing
Hilliard on Torts, 450; Fay v. O'Neil, 86 N. Y., 11; Bnrhans v. Sanford, 19
Wend., 417; Secor v. Babcock, 2 Johns., 203 ; Chapman v. Woods, 6 Blackf.,
604; Hays v. Blissard, 30 Ind., 457; Marbourg v. Smith, 11 Kan., 554, 562.
(8) Abandonment of civil suit,
A plaintiff's declaration for malicious prosecution, after setting out the
suing out of a writ in an ordinary action at law agaiuht him, and an arrest
and holding to bail thereon, and alleging that it was done maliciously and
BND OF THE PBOSECUTIOK. 345
without probable cause, averred that no proceedings were thereupon had
in that action, and that the plaintiff did not declare against the defendant
nor prosecute his suit against him with effect, but voluntarily permitted the
action to be discontinued for want of prosecution thereof, whereupon and
whereby, and according to the practice of the court, the suit became de>
termined. At the trial it appeared that no declaration was delivered or
filed in the former action, and that the action for malicious prosecution
was not commenced until a year after the return day of the former action.
It was objected that, there being no judgment of court, there was no evi-
dence of the determination of the suit to satisfy the averment of the dec-
laration. But Lord Lyndhurst, C. B., thought there was, and overruled
the objection, and the ruling was confirmed by the court of queen's bench.
Lord Tenterden, C. J., saying: **The length of time which had elapted
shows that the suit was abandoned altogether ; " and Park, J., said : *' When
the cause is out of court it must be considered as determined.** Pierce v.
Street, 8 B. & Ad., 397. See Cardival v. Smith, 109 Mass., 158 (1872):
Jewett V. Lack, 6 Gray, 283 (1856); Lombard v. Olins, 5 Gray, 8 (18£5);
Clark V. Montague, 1 Gray, 446, 448 (1854).
NOTft. — In nearly all of the states of our Union statutes expressly pro-
vide for the filing of declarations, or complaints as they are called in many
jurisdictions, by a certain day arter the commencement of the action, if
not filed according to these requirements, it works of itself a discontinu-
ance of the suit. Gen. Stats. Mass. (1882], ch. 129. §9; R. S. 111. (1809),
ch. 110, § 17.
(4) Abandonment of civil suit — Plaintiff failing to appear.
The statutes of Massachusetts expressly provide that, if no declaration is
inserted in the writ, or filed on or before the return term, it shall be a discon-
tinuance of the action. Gen. Stats. Mass. (1882), ch. 129, t^ 9. In an action
for malicious prosecution the declaration stated that the defendant mali-
ciously, etc., procured the arrest of the plaintiff and held him to bail on a
writ returnable to the superior court at the September term, 1869; that the
plaintiff ** duly appeared at said court to which said writ was returnable;
but that the defendant did not appear, well knowing that he had no prob-
able cause to maintain the action against the plaintiff, nor was said writ
ever returned into the office of the clerk of said court." A demurrer on the
ground ** that the suit alleged to be malicious was not determined in favor
of the defendant therein by a judgment of court *' was sustained and the
plaintiff appealed.
Gray, J., overruled the demurrer, saying: ''A plaintiff cannot be com-
I)elled to enter his action, and, until he does, may judge for himself whether
he will proceed with it or not. If he does not enter it, it never comes be-
foru the court, nor becomes the subject of any judgment, nor appears on
its records, unless the defendant, upon filing a complaint at the return
term, obtains judgment for his costs. If the defendant does not make such
a complaint, the action is not the less finally abandoned and determined
by the neglect of the plaintiff to proceed with it. The only cause assigned
for the demurrer being that the declaration shows no determination of the
former suit in favor of the defendant therein by a judgment of court,
the demurrer must be overruled." Gardival v. Smith, 109 Mass., 158 (1872).
346 END OF THB PBOSBCUTIOK.
III. Vacation of Osdees.
§ 1 4. By Tacation of orders of arrest, etc. — As we have
seen, in order to sustain the action for a malicious prosecution,
the rule is imperative that the prosecution must be at an end,
or the action or special proceeding complained of finally de-
termined in favor of the defendant, when the imprisonment
is the result of an order of court made in the course of legal
proceedings. The vacation of the order of arrest has been
held to be a sufficient termination to sustain the action.
Illustrations from Amebioan cases. —
Vacation of an order of court in a civU suit for the arrest of the plaintiff.
An action for malicious prosecution was based upon an arrest bj virtue of
an order obtained upon a false affidavit, concealing designedly from the
court a circumstance which, if it had been revealed, would have prevented
the granting of the order. The complaint alleged that the defendaivt, ma-
liciously intending to injure the plaintiff, without probable cause, and with
full knowledge that the same was false and untrue, made an affidavit in
which he falsely and inaliciousl}* alleged certain facts not necessary to
mention here, and which, if true, warranted the order of arrest; that he
also, maliciously intending to injure the plaintiff, without probable cause,
and with full knowledge that the same was untrue, falsely and maliciously
made and verified a complaint alleging substantially the same facts; that
said affidavit and complaint were made in an action then brought against
this plaintiff, by these defendants, in the court of common picas for the city
and county of New York ; that the statements made, upon which said order
of arrest was granted, were false and untrue, and were known to the said
defendants to be false and untrue; and that thereafter, on motion of the
plaintiff in this action, the said order of arrest was vacated upon the ground
that the defendants had no cause of action. The defendants demurred to
the complaint upon the ground that it did not state facts sufficient to con-
stitute a cause of action. The judge before whom the demurrer was argued
rendered judgment in favor of the defendants upon the ground that there
was no allegation that the action in the court of common pleas had been
tried, or that final judgment had been entered thereon; his proposition
being that, in order to sustain the action for malicious prosecution, the rule
was imperative that the prosecution must be at an end, or the action or
special proceeding complained of finally determined in favor of the de-
fendant.
in discussing the question, Brady, J., said : " The propriety of this view
is now presented for our consideration, and the question is whether, after
an order of arrest has been dismissed upon the merits, the injured party is
obliged to wait until the action in which the order is obtained has been
decided in his favor. It will be observed here, in passing, that the order
of arrest may depend upon extrinsic facts which it is not necessary to
END OF THE PBOSEOUTION. 847
allege in the complaint, and vice versa. There can be no doubt that when
the order of arrest is dependent for its propriety upon facts dehors the
complaint, an action for malicious prosecution may be maintained, if the
facts otherwise warrant it, after the order is dischai'ged, inasmuch as
such discharge of the order is, unless appealed from, necessarily a final
Judgment thereon in favor of the arrested party. This was the view ex-
pressed in Searll v. McCracken, 16 How. Pr., 262. The plaintiff there
sought damages against the defendant on the ground that the latter had
maliciously and falsely obtained an order of arrest against him in another
action, and the complaint was demurred to. The justice who disposed of
the demurrer expressed no doubt about the right of action, but said that
the complaint was defective because it did not state that tlie order of arrest
whicli was alleged to have been falsely and maliciously obtained had been
vacated, or that judgment had been rendered for the defendant. Upon
' demurrer, it must be borne in mind, the plaintiff comes into court with a
confession by the defendant of all the facts alleged in the complaint. The
general doctiine, however, of the cases is as stated by the learned justice
in the court below, and as contended for by the counsel for the respond-
ents. * When a party,* as said by Earl, J., in Marks v. Townsend, 97 N. Y.,
590, ' has a final judgment in his favor upon the trial, the prosecution has
so far terminated that he may sue for malicious prosecution. If an appeal
be taken from the judgment, that may furnish a reason for staying the
trial of the action for malicious prosecution until the decision of the ap-
peal.' The complaint in that case alleged two causes, — one for malicious
prosecution, and another for false imprisonment, — and the gist of the
action was in procuring an order of arrest by the defendants under the
' Stilwell Act,' so called, and the arrest of the plaintiff. The warrant was
dismissed and the plaintiff discharged from arrest. There was an appeal
to the general term, where the order of discharge was affirmed (20 Hun,
81), and then an appeal to the court of appeals (81 N. T., 644), pending
which an action was brought, and upon that ground the plaintiff was de-
feated. The court said: * A party commencing such an action while an
appeal from the decision in his favor was pending simply takes the risk
of an adverse decision upon the appeal, and thus suffering defeat in the
action.' There is no suggestion that an action might not be maintained if
there had been no appeal taken from the order by which the plaintiff se-
cured his discharge. In Dusenbury v. Keiley, 85 N. T., 883, the plaintiff
was arrested, as in the previous case, under the Stilwell act. He was dis*
charged, and the proceedings were removed into the supreme court, where
an order was made, after due hearing, directing a reversal, and that the
proceedings under the Stilwell act be revived and restored. The plaintiff
failed to succeed for the reason that his action was barred by the statute
of limitations. The right to maintain an action on the discharge of the
order was not disputed. Smith v. Smith, 26 Hun, 576, a case upon which
both parties to this action rely, was brought to recover damages for mali-
ciously and without probable cause filing a notice of lis pendens and a
complaint affecting land belonging to the plaintiff. The demurrer was
sustained upon the ground that it was not averred that the action had been
in any form terminated^ or that it was maliciously and without probable
848 XKD OF TH£ PAOS£0(TTION.
cause prosecuted against the plaintiff. It will be perceived that this case —
assuming it to have any application — is entirely different for the reason
that it is here alleged that the affidavit upon which the order of arrest was
obtained was falsely and maliciously made. It might well be that there
was no such determination of the propriety of the lis pendens in that
action as would justify the commencement of a suit, which was not the
case with regard to the order herein, which was disposed of on the merits.
*' A class of cases has I)een referred to which would seem, at first, to sus-
tain the proposition that there was no such determination of the process
under which the arrest was made as would justify the commencement of
the action. One of these cases is Nebenzahl v. Townsend, 10 Daly, 232.
In that case the warrant was granted by a justice of the supreme court for
the arrest of the plaintiff and another under the provisions of the Stilwell
act. They were discharged, and from the order declarative of that result
an appeal was taken to the general term, which affirmed the order ; and a
further appeal was then taken to the court of appeals, and while the latter
appeal was pending an action was brought by the plaintiff. The action
was held to be premature in consequence of that appeal. It is true tliat the
learned justice said that no action for malicious prosecution was maintain-
able until the proceedings or suit in which the party had been prosecuted
and imprisoned liad been finally terminated by his acquittal and discharge,
or a verdict in his favor, and he cited what was said in Parker v. Langly,
10 Mod., 209, that it was a proper answer to show that the action was
pending, — which it certainly is, when there has been an appeal from the
judgment which has not yet been decided. So far, therefore, as this case
has any application whatever to the controversy in hand, it does not affect
the right of action asserted. In Swartwout v. Dickelman, 12 Hun, 858, a
case relied upon by the respondent, it appeared in the complaint that the
plaintiff had been committed to jail by a justice of the peace to await the
action of the grand jury, before the meeting of which he was discharged
under a writ of habeas corpus, and then brought his action. It was held
that the discharge was not a determination of the plaintiff's innocence, and
that the prosecution was not determined until the grand jury met, and the
case was presented and ignored, or there was a failure to prosecute. That
is not a case bearing ^upon the question herein considered, and does not
seem to have any application. In Peck v. Hotchkiss, 62 How. Pr., 226,
also relied upon by the respondent, it was held that an action for seizing
property under an attachment was prematurely brought, if an appeal was
pending from the order dismissing the attachment, and this decision is in
accord with those to which reference has been made, and which established
the proposition that, if an appeal be taken from the order of arrest, and
an action be brought pending the appeal, it cannot be maintained, inas-
much as there is no final disposition of the process under which the arrest
was made. A consideration of all these authorities leads to the conclusion
that in a case like the probent, and particularly where the averments of
falsity and malice are so sweeping, and it appears that no appeal was taken
from the order vacating the order of arrest, the action may be maintained.
" The authorities considered seem to result in the necessity of averring the
converse of the condition suggested, placing the burden on the plaintiff of
BND OF THE PBOSEOUnOK. 849
showing that no appeal was taken from the order. His cause of action is
not complete without it; and this springs from the rule requiring at least,
as already shown, a final determination of the right of arrest. The plaint-
iff has failed to make the averment suggested, and the judgment pro-
nounced must for that reason be sustained.'* Ingram ▼• Root, 51 Hun, 288 ;
8 N. Y. Sup., 858 (1889), Daniels, J., dissenting.
IV. DiSCHAROB ON OrDERS OF OOUBT.
§ 1 5. By discharge on orders of court. — Where a party
is bound over to appear before another court by an examining
magistrate, ^he rule seems to be that, in order to maintain the
action for malicious prosecution, he must show that he has
been discharged by an order of the court in which he was
bound to appear.
Illustration froh American oasss.-^
End of the prosecution — A person recognized to appear^ etc, must b^ dis^
charged by order of court.
In an action for malicious prosecution brought by Margaret Knott
against Horace B. Sargent, it appeared that the prosecution was begun by
complaint to a police court, upon which the accused was arrested and tried ;
and that the judge found that there was probable cause to believe the ac-
cused guilty of the offense charged, and ordered him to recognize to appear
and answer at the next term of the superior court; that a recognizance was
given, containing the condition that if the accused should personally ap-
pear before the superior court at the term mentioned, and at any subse-
quent term '*to which the same may be continued, if not previously
surrendered and discharged, and so from term to term until the final decree,
sentence or order of the superior court thereon, and shall abide such final
sentense, decree or order,** etc., the recognizance should be void; that the
records of the superior court only showed that, at the term of that court
to which the recognizance was returned, the grand jury returned no bill
in the case of the accused. Parol evidence was admitted, against the plaint-
iflrs objection, to the effect that the case was continued by the grand jury
on account of the absence of a material witness, and that, the next term of
the court the same action was had by the grand jury, for the same reason,
and had not for more than a year afterwards been acted upon. It was
held that the parol evidence was properly admitted, and that the prosecu-
tion had not been so far terminated that the action for malicious prosecution
could be maintained 9 and the plaintiff was nonsuited. Knott v. Sargent.
125 Mass., 95 (1878). Citing Thomas v. De Qraffenried, 8 N. & M., 148.
y. DlSOHARGB BT MAGISTRATES.
§16. Discharge by magistrates sufficient^ when.— The
discharge of a defendant in a criminal prosccation by an ex-
amining magistrate has usually been held a sufficient termina-
350 BND OF THE PKOSKOUTIOlir.
tion of the prosecution upon which to fonnd an action for a
malicious prosecution, especially incases where the magistrate
has either complete or partial jurisdiction over the offense
charged.^ It has been held otherwise, however, where the
magistrate is acting without jurisdiction, the remedy in such
cases being in trespass for false imprisonment.*
Illustrations from American oases. —
(1) Discharge byjiisHce sufficient though he does not have fuU jurisdiction.
In the trial of an action for malicious prosecution it appeared that the
defendant made a complaint before a trial justice, charging that the plain t-
iflf committed a trespass by unlawfully and wilfully cutting down, carry-
ing away and destroying certain timber. A warrant issued upon this
complaint, by virtue of which the plaintiff was arrested, tried and dis-
charged by the justice who made a record of the same. One Endicott testi-
fied that he was a surveyor and civil engineer, and that a path cut by the
plaintiff, which constituted the alleged trespass, damaged the premises to
the amount of ten or fifteen cents; that the trees cut' were very small,
many of them only huckleberry bushes, etc. The plaintiff testified thai
he had lived a short distance southerly of the defendant's house; that he
had permission to cut a path through land of a third person, and in cutting
the path made a mistake, unintentionally cutting into the land of the de-
fendant; that, when informed of his mistake by defendant, plaiutiff said
he would pay the damages, and if they could not agree would leave it
to referees. Subsequently he tendered defendant two dollars in payment
of the civil damages caused by the trespass, which the defendant accepted.
Another witness testified that the damage made in the cutting of the path
would not exceed twenty-five cents. Upon these facts the judge ruled
that the action could not be maintained ; ordered the jury to return a ver-
dict for the defendant ; and, at the plaintiff's request, reported the case for
the determination of the full court.
Field, J., in passing upon the question, said: "The defendant made. a
complaint before a trial justice against the plaintiff, under Massachusetts
Public Statutes, chapter 203. section 94, on which the plaintiff was ar-
rested, and after an examination by the trial justice was discharged. This
section of the Massachusetts Public Statutes is a re-enactment of the Gen-
eral Statutes, chapter 161, section 81, as amended by the statute of 1868,
chapter 821, section 1. By the statute of 1868, chapter 821, section 2, juris-
diction to punish this offense was given to trial justices, concurrently
with the superior court, ** when the value of the property cut," etc., ** or
the injury occasioned by the trespass, is not alleged to exceed the sum of
one hundred dollars.** It seems that by the Massachusetts Public Statutes,
*Moyle V. Drake, 141 Maa*., 238; Burton, 44 Vt., 124 (1871); Fay v.
6 N. E. Rep., 620 (1886); Driggs v. O'Neill, 86 N. Y., 11 (1867).
2 Painter v. Ives, 4 Neb., 122 (1875).
END OF THE' PBOSEOUTION. 351
chapter 155, section 51, this grant of jurisdiction to trial justices over
offenses under this section of the statutes was omitted, and that since the
Public Statutes took effect they have jurisdiction only to commit or bind
over for trial by the superior court those who, on complaint, appear to be
guilty of offenses under this section. But this change in the law is imma-
terial. A discharge by the trial justice is an end of the prosecution, and
the prosecution .was before a court having some jurisdiction over the
offense. Sayles v. Briggs, 4 Mete., 421, 426; Cardival v. Smith, 109 Mass.,
159; Driggs v. Burton, 44 Vt., 124; Fay v. O'Neill, 86 N. Y., 11. There
was evidence for the jury that the complaint was prosecuted without prob-
able cause and with malice. New trial granted.'* Moyle v. Drake, 141
Mass., 238; 6 N. £. Rep., 520 (1886).
(2) Acqitittal before magistrate having no jurisdiction not sufficient ^ etc.
Bizby sued Brundige for a malicious prosecution. At the trial the
plaintiff, in proof of the prosecution and acquittal, produced a certified
copy of a complaint, warrant and judgment of an acquittal against him
by the state for an illegal sale of intoxicating liquor in Lowell before a
justice of the peace, who^ it was admitted, had no jurisdiction of the com-
plaint or authority to issue a warrant returnable before himself. It was
objected by the defendant that, the justice having no jurisdiction, there was
no sufficient record either of a prosecution or acquittal to sustain the ac-
tion. Bishop, J., so held, and the verdict was for the defendant. The
ruling was upheld. Merick, J., said: *'The ruling excepted to was unob-
jectionable. As the magistrate had no jurisdiction of the offense of which
the plaintiff was. accused in the complaint, the proceedings before him
were of no legal force or validity; and they therefore afford no sufficient
basis to sustain an action for malicious prosecution." Bixby v. Brundige,
68 Mass., 129(1854).
(8) A discharge by a magistrate — Prosecution abandoned by the com-
plainant suffi^ent.
On the trial of a suit for false imprisonment and malicious prosecution
it appeared that the plaintiff was arrested and imprisoned on a warrant
procured by the defendant charging him with the crime of perjury. The
defendant subsequently abandoned the prosecution and the plaintiff was
discharged by the magistrate. The charge was not brought before the
grand jury, and the defendant admitted that he did not intend to proceed
further in the matter. The jury found that the charge was made from
malicious motives and without probable cause. The verdict was for (500.
An appeal was prosecuted to the court of appeals.
In disposing of the question as to whether the discharge of the magis-
trate was a sufficient termination of the prosecution, Parker, J., said : " It
was suf&ciently shown that the prosecution was at an end. The complaint
was dismissed by the magistrate *in consequence of the complainant
not appearing to prosecute at the time to which the case was adjourned.*
This was a sufficient termination of the prosecution.'* Judgment af-
firmed. Fay V. O'Neill, 86 N. Y., 11 (1867). Citing Clark v, Cleveland, 6
352 END OF THV PROSECUTION.
Hill, 814; Secor v. Babcock, 2 Johns., 208; Parcell ▼. MacNaroara, 9 East,
861; Burhans v. Sanford, 19 Wend., 417; Walkins v. Lee, 5 Mees. & WeL,
270.
(4) Discharge on preliminary examination by tried Justice, when a euffleient
end of the proeecution,
Mrs. Sophia Gibbs was brought before a trial justice upon a criminal
charge. She was required to plead to the complaint, to answer further
thereto at a subsequent day, and to give surety in the sum of $6,000 for
her appearance for that purpose. In default she was committed to jail by
order of the magistrate, and a mittimus therefor in due form was issued.
Upon the day fixed for trial she was discharged, the magistrate flndin^i:
nnd adjudging her to be '* not guilty of said charge.** All this appeared
from the records of the trial justice. The court held this to be a sufficient
prosecution and acquittal therefrom to furnish a foundation for the action
of malicious prosecution, notwithstanding there was a deficiency in the
complaint, and a defect in the process by which she was brought before the
court, and a want of jurisdiction in the magistrate arising; from such de-
fect, the magistrate having jurisdiction of the subject-matter of the
complaint Gibbe v. Ames, 119 Mass., 60 (1875). Citing 2 Greenl. Et..
^^ 449, 453; Mims v. Dnpont, 1 Am. Lead. Cas. (4th ed-X 215, 216, notes;
O'Brien v. Barry, 106 Mass., 800, 804. Distinguished from Bizby v. Brun-
dige, 2 Gray. 129, and Whiting v. Johnson, 6 Gray, 246 — the magistrate
having no jurisdiction of the subject-matter of the complaint.
(5) Abandonment of the prosecution — Discharge by justice^ prosecutor
failing to appear.
In an action to recover damages for a malicious criminal prosecution of
the plaintiff before a justice of the peace upon complaint of the defendant,
it appeared that the proceeding was never brought to trial, the justice of
the peace having failed to attend at the time set for trial. Subsequently,
the complainant failing to appear and prosecute after notice to do so, the
justice formally discharged the accused. Upon the trial of this action, the
above facts appearing, the court nonsuited the plaintiff, upon motion of
the defendant, for the reason that the plaintiff had not been acquitted of
the offense charged against him. Afterwards the court, deeming this rul-
ing erroneous, granted a new trial, and the defendant appealed.
Dickinson, J., said: The general rule, making the right to maintain an
action of this nature to depend upon the fact that the prosecution com-
plained of has resulted in a determination in favor of the accused, is ap-
plicable only when the course of the prosecution has been such that the ac-
cused had the opportunity to controvert the facts alleged against him, and
to secure a determination in his favor. Pixley v. Reed, 26 Minn., 80; S. G.,
1 N. W. Rep., 800; Cardival v. Smith, 109 Mass., 158; Buckland r. Green,
188 Mass., 421; Clarke v. Cleveland. 6 Hill, 844; Fay ▼. O'Neill, 86 N. T.,
11; Apgar v. Woolston, 48 N. J. Law, 57; Stanton v. Hart, 27 Mich., 589.
In the case under consideration the prosecution was terminated without
this plaintiff having had such an opportunity, and the nonsuit was erro-
neous. The order granting a new trial is therefore affirmed. Swensgaard
V. Davis, 88 Minn., 863; 28 N. W. Rep., 543 (1885).
END OP THB PROSECUTION. 353
VL On Habeas Cobpus.
§ 1 7. By a discharge on habeas eorpas. — A discharge
upon a hearing in a suit of habeas corpus has been held to be
a sufficient termination of the proceeding, though the rule is
not quite uniform.
Illustrations froh Amrrioan oases. —
(1) Wlien a discharge on a habeas corpus is an end of the prosecution.
A warrant was issued against Hugh Martin on the 17th day of March,
1886. Twelve days later he was arrested and brought before the justice.
On the examination he was required to give bail in the sum of $300, in de-
fault of which he was sent to jail. On the 5th day of April he sued out
a writ of habeas corpus and was discharged. After his release he brought
an action for malicious prosecution against Martin O. Walker and Guy H.
Cutting. On the trial the jury found for the plaintiff, assessing his dam-
ages at $20,000. The defendants appealed.
In delivering the opinion of the supreme court reversing the judgment.
Breese, J., said: Under the facts shown in this record the prosecution was
not ended by the discharge of the appeUee on the writ of habeas corpus*
On principle, and for the safety of the republic, such a discharge should
not of itself have such an effect. If it had, the vilest criminals might go
tinwhipped of justice. The appellee should have shown, or it should have
been made to appear on the trial, that the state's attorney did not send the
case with the recognized witnesses to the grand jury. Or if he did send
them, and no steps were taken by the people in court, then the discharge
under the habeas corpus act should be^egarded as having ended the prose-
cution. Walker et al v. Martin, 48 III., 508 (1867).
(2) Discharge upon habeas corpus a sufficient end of the prosecution,
John W. Story brought an action against John Zebly, Jr., for a malicious
prosecution. The first trial resulted in a verdict for the plaintiff, but it
was set aside and a new trial granted. At the second trial there was a dis-
agreement of the jury. The third trial resulted in a verdict and judgment
for the plaintiff, and this the defendant brought to the supreme court on a
writ of error. On the trial in the supreme court it was claimed that the
trial court erred in holding the discharge upon a writ of habeas corpus such
an end of the prosecution as would enable him to sustain the action for
malicious prosecution. It appeared on the trial that Story was arrested
for obtaining goods from the firm of which 2^bly was a member by means
of false pretenses. At the hearing he was committed to the county prison,
where he remained twenty-seven days, when he was brought before Judge
Brewster upon a writ of hctbeas corpus and discharged.
In discussing the assignments of error upon this point, Pazon, J., said:
'* The second and ninth assignments of error may be considered together.
The first alleges error in admitting in evidence the record of the quarter
28
354 END OF THE PBOSEOUTION.
sessions upon the Tiabeas eorput prooeeding. The second was to the refusal
to affirm the defendant's last point. The point was as follows : ' A discharge
of the plaintiff upon a writ of Jiabeaa corpus, after hearing thereon in the
court of quarter sessions, is not such a final determination of the prosecu-^
tion against him as will entitle him to maintain his present action, and the
Terdict of the jury must be for the defendant.* The question raised by this
point has never yet been decided by this court to my knowledge. Under
such circumstances it would seem natural to' suppose that counsel present-
ing it would give us the benefit of their aid and research in disposing of it ;
on the contrary, it is thrown in upon us not only without an authority pro
or con, but without an argument. Tet we are asked to decide it. We
might perhaps decline to do so, but as the question lies directly in the path
of another trial, we will consider and dispose of it. The eleventh section
of the Jiabeas corpus act, 18th February, 1785 (1 Smith's Laws, 275), pro-
vides as follows: 'And for preventing unjust vexation by reiterated com--
mitments for the same offense, be it enacted that no person who shall be
delivered or set at large upon a habeas corpus shall at any term thereafter
be again imprisoned or committed for the same offense by any person or
persons whatsoever, other than by the legal order and process of such court
wherein he or she shall be bound by recognizance to appear, or other court
having jurisdiction of the cause ; and if any other person or persons shall
knowingly, contrary to this ac«, recommit or imprison, or knowingly pro-
cure or cause to be recommitted or imprisoned, for the same offense or sup-
posed offense* any person delivered or set at lai'ge as aforesaid, or be know-
ingly aiding or assisting therein, then he or they shall forfeit to the pris-
oner or party grieved, any pretense of variation in the warrants of commit-
ment notwithstanding, the sum of £500, to be recovered by the prisoner or
party grieved in manner aforesaid.* It will be seen that the act prohibits,,
under a heavy penalty, the re-arrest or imprisonment, for the same offense,
of a person discharged upon habeas corpus, except by * the legal order and
process of such court wherein he or she shall be bound by recognizance to
appear, or other court having jurisdiction of the cause.' A discharge upon
habeas corpus is not necessarily, and in all cases, the end of the prosecu-
tion. The public prosecutor, for public reasons and with leave of the proper
court, may send a bill to the grand jury, even in a case where the prisoner
has been discharged upon habeas corpus. This view of the act was evi-
dently taken by the late Judge King, of Philadelphia, in the case of Com.
T. Ridgeway, 2 Ashm., 247, where he said, in discharging the relator: *I re-
joice, however, that our judgment is not conclusive of the subject. The
sole effect of this decision is that in the present state of the evidence we
see no sufficient cause to hold the defendant to bail. It is still competent
for the proper public officer — particularly in a different state of the evi-
dence — to submit the case to the grand jury. That respectable body are
entirely independent of us ; they can form their own views of the prosecu-
tor's case, and may, if their judgment so indicates, place the defendant on
his trial ; we at present do not see adequate cause to induce us either to re-
strain him of his liberty or to compel him to give bail to answer. He is dis-
charged.' It will be noticed that there is no indication from Judge King
that a private prosecutor could procure the recommitment of a person so
END OF THE PROSECUTION. 355
discharged. It must be done by the public prosecutor and manifestly for a
public purpose.
" The nearest approach to an aiithority in this state [Pennsylvania] is the
ruling of the late Justice Bell at nisi pritts, in Charles v. Abeli, Brightly,
N. P., 181, where he held that a discharge on habeas corpus puts an end to
a criminal prosecution so as to enable the defendant therein to maintain an
action for malicious prosecution. It was said by that learned judge: * It
must be acknowledged that the law on this subject has undergone many
alterations in modern times. It seems to be now agreed that if a grand
jury ignore the bill it is sufficient to maintain an action. But this rule has
been still further modified, and it is settled that if a party is brought
before an examining magistrate and discharged, though the proceedings
might be again renewed, still, in point of law, that prosecution is ended,
and the party may maintain an action for malicious prosecution. There is
a precedent for a declaration in Chitty's Pleadings in an action brought
under such circumstances. There is no difference, in point of principle
and practice, between a discharge by a committing magistrate and a dis-
charge by a judge who examines the case upon habeas corpus. It as effect-
ually puts an end to the prosecution as if the defendant were discharged
by a magistrate, although a new charge may be afterwards made.' The
practice of commencing suits for a malicious prosecution, after a hearing
and discharge by a committing magistrate, appears to have passed unchal-
lenged in this state. There are many such cases in our reports. It is suffi-
cient to refer to Orr v. Seller, 1 Penn., 445; Bernar v. Dunlap, 94 Pa. St.,
829. It would be unreasonable to give greater effect to the discharge of a
prisoner by a committing magistrate, who is ordinarily a layman, than to
a discharge upon habeas corpus by a judge of a court of record. The of-
fense with which the plaintiff was charged was a mere misdemeanor. It
lacks every element of public importance. Such prosecutions are seldom
resorted to except to collect a debt, and one can hardly imagine an instance
in which a public prosecutor would ever interfere in such a case where the
offender had been discharged upon habeas corpus. And, as the private
prosecutor may not re-arrest the party, such discharge, for all practical
purposes, is an end of this case. If, therefore, a suit for malicious prose-
cution may not be brought after a discharge upon habeas corpus^ it can
never be brought, no matter how gross may have been the abuse of legal
process. Speaking for myself, I would do nothing to impair the right to
bring such actions. The fear of the rebound has saved many an unfortu-
nate debtor from an unjust prosecution.
" We are of the opinion that the learned judge below committed no error
in refusing the defendant's point. It follows that it was not error to per-
mit the record of the habeas corpus to go to the jury. It was the proper
and legal way of showing the plaintiff's discharge.** Zebley v. Storey, 117
Pa. St, 478; 12 Atl. Rep., 668 (1888).
VII. Miscellaneous Matters.
§ 18. Miscellaneous matters of discharge. — The particu-
lar matters relied upon for a termination of the proceedings
complained of must, of course, vary largely and depend to
356 SND OF THB P&OSECUTION.
some extent upon the peculiar circumstances of each case.
Aside from the matters already discussed, there are some
others which have been held sufficient, and which may be con-
veniently grouped under the head of ^^ Miscellaneous matters
of discharge."
Illustrations fbom Ambbioait oases. —
(1) Voluntary escape from officer not a sufficient termination,
Cleveland made a complaint before a justice that Clark designedly and
by false pretenses did obtain from him $108.85 with intent to cheat and
defraud him. A warrant was issued and sent to a neighboring town
where Clark then was. It having been indorsed by a justice of that
county as required by law, it was delivered to a constable who arrested
Clark, but let him go upon his entering into a recognizance to ap]:>ear at
the general sessions of the county where the justice resided who issued the
warrant Clark appeared but Cleveland did not. No charge was ever
preferred against him before the grand jury. He was never taken before
the justice who issued the warrant as required law; the warrant was never
returned, the constable having lost it. Having brought his action against
Cleveland for malicious prosecution, and these facts appearing on the trial,
the defendant moved for a nonsuit. The judge refused and submitted the
cause to the jury, who returned a verdict for the plaintiff. The defendant
t'len moved for a new trial of the case.
Cowen, J., after holding that the admission to bail by the constable was
a mere nullity, and the officer was guilty of suffering a voluntary escape,
«aid: '*Thus did the voluntary escape put an end to the warrant? It is
-said in some books that in case of criminal process the officer suffering the
•escape cannot retake the accused ; the question is not settled, but I am in-
clined to think the law otherwise, and so it is considered in those books
which treat the subject with greatest care, that the people ought not to be
•deprived of any right by an escape of whatever kind from custody under
-criminal process. Though the officer consent to the escape, he is bound to
retake the prisoner. 2 Curw. Hawk., ch. 19, § 12; Dickinson v. Brown, 1
Esp., 218; Peake, N. P., 234; Butt v. Jones, 1 Neil Gow, N. P., 99; Chit.
Crim. Law, 61 (Am. Ed. 1841). The established distinction in civil cases
is this: On mesne process the sheriff may retake the prisoner even after a
voluntary escape, the object being to have him at the return day ; and it
would be most unreasonable to receive his objection that the sheriff had
indulged him without bail. But after commitment in execution he is dis-
charged because the sheriff is answerable in his stead. Atkinson v. Mat-
teson, 2 T. R., 172. In criminal cases no such distinction prevails between
mesne and final process ; and in Butt v. Jones it was held that after the
voluntary escape of a criminal in execution for a fine, he might be retaken
by the very officer who consented to the escape; afortiori^ as to an escape
•of that sort from mesne process. If this view of the question be right,
then the warrant by virtue of which the plaintiff was arrested still remains
in force to all intents and purposes ; it is process under which he may yet
be arrested. The prosecution was not at end within the reason of the rule
END OF THE PEOSECUTION. 36T
we have examined.'* New trial granted. Clark v. Cleveland, 6 Hill
(N. Y.), 844 (1844). Cited in 42 N. Y., 70; 49 N. H., 148; 6 Am. Rep., 477 ;
5 Park., 660; 41 N. J. L., 24; 9 Abb. Pr., 242; 18 How. Pr., 629; 48 Barb.,
87; 41 Barb., 806; 26 Hon, 676; 12 Hun, 869; 86 N. Y., 18. Disapproved,
80 Barb. (N. Y.), 800, 808.
(2) Termination of a proaeeuHon by obtaining leave not to JUe an inform
motion.
In an action for malicioas proeecation the defendant made a complaint
against the plaintiff, charging bim with having committed the crime oi
perjury. A warrant was issued on the 6th of February, 1880, the defend-
ant was arrested and brought before a justice of the peace, and, after sev-
eral adjournments on the application of the people, a hearing was had,,
and the defendant was held to answer the charge in the circuit court. He
entered into a recognizance for his appearance at the May term. Nothing
further was done towards prosecuting him, and at the December term the
prosecuting attorney obtained leave of court not to file an information.
Plaintiff then brought this action for a malicious prosecution, and recov-
ered. Defendant alleged error.
The record before the supreme court showed that the following journal
entry wlas introduced in evidence: "The People v. Henry C. Spaulding.
December 7, 1880. In this cause, the prosecuting attorney filing reasons
therefor, it is ordered that he have leave not to file an information."
In passing upon this question Champlin, J., said: '*The defendant con-
tends that this is not such a final order as would prevent a further prose-
cution of the suit without a new complaint. Section 9668 of Howell's
Statutes [Michigan] enacts that ' it shall be the duty of the prosecuting at-
torney of the proper county to inquire into and make full examination of
all the facts and circumstances connected with any case of preliminary
examination, as provided by law, touching the commission of any offense,
whereon the offender shall be committed to jail, or become recognized or
held to bail ; and if the prosecuting attorney shall determine, in any such
case, that an information ought not to be filed, he shall make, subscribe
and file with the clerk of the court a statement in writing containing his
reasons, in fact and in law, for. not filing an information in such case, and
that such statement shall be filed at and during the term of the court at
which the offender shall be held for appearance : provided, that in such
case such court may examine such statement, together with the evidence
filed in the case ; and if upon such examination the court shall not be sat-
isfied with said statement, the prosecuting attorney shall be directed by
the court to file the proper information and bring the case to trial.' The
statute does not require the prosecuting officer to obtain leave of court to
permit him to file his reasons for not filing an information. The record
introduced in evidence shows the action of the court based upon the rea-
sons filed, and was a proper entry to be made when the court is satisfied
with the reasons stated by the prosecuting attorney. It is conclusive both
upon the fact that the prosecuting attorney had filed his reasons therefor
and that the prosecution was at an end." Spalding v. Lowe, 66 Mich., 866;
28 N. W. Rep., 46 (1886).
^58 END 01 THE PSOSBOUnON.
(8) When an indictment is guaahed and defendant rdecued.
Blizzard brought an action against Hays for a malicious prosecution.
There was a verdict and judgment for the plaintiff, and the defendant ap-
pealed. The complaint contained an allegation that the defendant *' falsely,
maliciously, and without any reasonable or probable cause, indicted, and
caused and procured to be indicted, the said plaintiff for the alleged crime
of forgery,'* upon which he was arrested ; that the indictment was subse-
quently quashed, and the plaintiff released and discharged therefrom. To
this a demurrer was overruled, the overruling of which was assigned for
error. In passing upon this assignment, Elliott, J., said : '* The objection
urged to the paragraph is that, to sustain an action for malicious prosecu-
tion, it must appear that the plaintiff was finally acquitted of the criminal
charge, and that his release therefrom in consequence of the indictment
being quashed is not sufficient. All authorities concur in saying that, to
support the action, it must be shown that the prosecution is determined.
But it was shown in Chapman v. Woods, 6 Blackf., 604, after a very care-
ful consideration of the question, that where a nolle proeequi had been en-
tered to the indictment, and a judgment entered thereon that the defendant
go hence acquit thereof, there was a final determination of the prosecu-
tion. It was ended by the judgment, and although a new indictment
might be preferred, no further process could issue on the old one, and
hence such a termination of the action was sufficient to support the ac-
tion. The same result is produced by the indictment being quashed and a
judgment for the defendant thereon. In such case a new indictment may
be presented, but the first prosecution is finally ended when the indictment
is quashed and the plaintiff discharged by the judgment of the court We
jthink there was no error in overruling the demurrer." Hays v. Blizzard,
80 Ind., 457(1868).
§ 19. When the grand jnry find an Indictment for a dif-
ferent offense than that charged in the complaint before
the magistrate. — It is a well-settled rule of law that when
a party is arrested and bound over on a criminal charge he
must show, in order to prove a discharge and a termination
of the prosecution, that no bill was found against him by
the grand jury.^ The complaint in such case, being only
a preliminary step, is regarded as part of tho proceedings
which are subsequently continued in the court, to which the
party is bound to answer to that which may be found against
faim by the grand jury. But it does not follow that the prose-
cution originally commenced by complaint before a magistrate
is terminated because the accused party is not charged by
indictment with precisely the same offense as that set out in
12 Greenl. Ev., 452; Morgan v. Hughs, 2 T. R., 225; Jones ▼. Given*
GUb. Cas. 185, 200.
END OF THE FBOSEOUTION. oo9
the complaint. If on the same evidence the grand jury pre-
sent an indictment for a different offense from that charged
before the magistrate, it does not destroy the identity of
the prosecution, but only shows that different minds arrive
at different conclusions from proof of the same facts. The
prosecution commenced against the party still continues, and
cannot be said to be at an end until the indictment found by
the grand jury is finally disposed of.^
An illustbation. —
End of the prosecution — Indictment for an offense different from the one
charged in the original complaint.
Waters, it was alleged, without probable cause and with malice caused
and procured a complaint to be made before a trial justice, charging Mr.
Bacon with larceny. Bacon was examined and bound over to appear at
court, etc. The grand jury found no bill for larceny, but upon the same
evidence found a bill against Bacon for feloniously receiving stolen goods,
to which it appeared Bacon had not pleaded.' Bacon brought an action
against Waters for- a malicious prosecution, and, these facts appearing, a
verdict was rendered for the defendant.
On exceptions, Bigelow, C. J., said: "The only difference between the
offense set out in the complaint and that laid in the indictment was, that
the former charged the plaintiff as principal in committing the felony,
and the latter as accessory after the fact. The line which separates a felo-
nious taking as proved by recent possession of stolen property, and a re-
ceiving of it knowing it to be stolen, is often indistinct and difficult to
establish by proof. But the identity of the prosecution is none the less
clear because the nature of the evidence rendered it difficult to ascertain
whether the offense consist in an active commission of a felony, or being
accessory to it before or after the fact. It was regularly before the grand
jury on a return of a copy of the complaint and warrant, and of the rec-
ord of the proceedings before the magistrate. By placing the indictment
on file the prosecution is not ended. The defendant is liable at any time
to be called upon to answer to the charge. Bacon v. Waters et al.» 84
Mass., 400(1861).
§ 20. Conclusion — False Imprisonment — End of the
proseention in suits for the abuse of legal process. — An
abuse of legal process is where a party employs it for some
unlawful object, not the purpose it is intended by the law to
effect; in other words, it is a perversion of it. Thus if a
man is arrested or his goods seized in order to extort money
1 Baoon v. Waters, 84 Mass., 400 (1861). .
S60 BND OF THE PROSECUTION.
from him, even though it be to pay a just claim other thai>
that in suit, or to compel him to give up the possession of
some property not the legal object of the process, it is well
settled that in an action for such malicious abuse of process
it is not necessary to prove that the action in which the pro*
cess issued has been determined.^
§ 21. Malicious proseentlon — End of the prosecution in
suits for the malicious nse of legal process, — Legal process^
civil and criminal, may be maliciously used so as to give
rise to a cause of action where no object is contemplated
to be gained by it other than its proper effect and execution.
As any man has a legal right to prosecute his claims in a
court of law, no matter by what motives of malice he may
be actuated in doing so, it is necessary in this class of cases
to aver and prove that he has acted not only maliciously but
without reasonable or probable cause. It is clearly settled,
also, that the proceedings must be determined finally before
any action lies for the injury.* * '
§ 22. Distinction between actions for malicious prosecu-
tion and false imprisonment, — An action for malicious prose-
cution is in effect an action for the malicious use of legal
process without reasonable or probable cause. In these ac-
tions it is always necessary to show that the proceeding in
wl^ich it is claimed there has been a malicious use of legal
process has been fully determined ; because, as it was said by
an eminent English jurist, ^Hhe plaintiff will clear himself too
soon, viz., before the fact is tried, which will be inconvenient;
besides the two determinations might be contrary and incon-
sistent." ^ But in an action for false imprisonment, which is in
effect an action for the malicious abuse of legal process, it is
not necessary to prove that the action in which the process
issued has been determined, or to aver that it was sued out
without reasonable or probable cause.^
1 Mayer v. Walter, 64 Pa. St., 283 'Mayer v. Walter, 64 Pa. St., 28a
(1870); Grainer v. Hill, 4 Bing. N. C, (1870) ; Arundell v. Tregono, Yelv.,
212. 117.
«ArundeU v. Tregono, Yelv., 117; * Grainer v. HiU, 4 Bing. N. C.^
Mayer v. Walter, 64 Pa. St., 288 212; Mayer v. Walter, 64 Pa. St.»
(1870). 288 (1870).
END OF THE PBOSEOUTION. 861
§ 23. End of the proseentlon. —
DIGEST OF AMERICAN 0A8E&
1. To maintain an action for malicious prosecution, it is not necessary to-
show an acquittal which will bar a second prosecution for the same offense ;^
nor that any judicial decision shall have been made upon the merits. Clark
V. Cleveland. 6 Hill (N. Y.), 844.
2. The action cannot be maintained until the plaintiff has been acquitted,
•r the prosecution is fully terminated in his favor. The determination of
the prosecuting officer, never to bring the indictment to trial, for the rea-
son that he deems the charge entirely unsupported, is not sufficient. Thorn-
ason V. Deraotte, 9 Abb. Pr. (N. Y.), 242; 18 How. Pr., 629; S. P., Monroe
V. Maples, 1 Root (Conn.), 653.
8. An action for malicious prosecution cannot lie where there has been
a judgment and verdict by a competent court, though there has beei»>
afterwards an acquittal by a superior tribunal. Qriffis v. SeUars, 2 Dev. &
B. (N. C), 492.
4. A party who has escaped, because not technically though morally,
guilty, cannot recover damages for the injury to his reputation by the un»
successful prosecution. Sears v. Hathaway, 12 Cal., 277.
5. An action will lie, though there has been no trial by jury or verdict
of acquittal upon the charge. Gilbert v. Emmons, 42 111., 148.
6. Suit for malicious prosecution may be founded on an indictment
where no acquittal can be had, as if it be rejected by the grand jury, or he-
coram non judke^ or be insufficiently drawn. Stancliff v. Palmeter, 18^
Ind., 321.
7. An action will not lie if such prosecution was terminated by the entry
of a nolle prosequi. Brown v. Lakeman, 12 Cush. (Masa), 282; S. P.,
Parker v. Farley, 10 Cush., 279.
8. But if it appears that a nolle prosequi to the indictment was entered,
and a judgment thereupon rendered that the defendant "go hence, thereof
acquit, without day," the acquittal is sufficient to warrant a suit. Chap-
man v. Wood, 6 Blackf. (Ind.)» 604.
9. If one who is charged with larceny in a complaint before a magistrate
is held under recognizance to answer before the superior court, but not at
the next or any regular term thereof, and at the next term of that court i»
indicted by the grand jury on the same evidence that was before the magis-
trate, for fraudulently receiving the stolen goo^s and not for the larceny,
and the indictment is placed on file and not pleaded to, the finding of the
indictment is to be regarded as a continuation of the same prosecution ; but
placing it on file is not a termination thereof which will authorize a per-
son indicted to maintain an action for n:ialicious prosecution. Bacon v.
Waters, 2 Allen (Mass.), 400.
10. The defendant prosecuted the plaintiff for theft. He was brought
before a justice, but was discharged because the parties had settled. It
was held that this was not such an acquittal as would warrant an actioi^
for malicious prosecution. McCormick v. Sisson, 7 Cow. (N. Y.), 716.
11. In an action by husband and wife for malicious prosecution, the
plaintiffs alleged that the defendant maliciously replevied the husband'^
•^62 END OF THE PB08ECUTI0N.
['goods for the purpose of injuring the wife, and when the person who
replevied the goods had no property in them. It was held that the plaint-
iffs could not maintain their action while the replevin suit was still pend-
ing. O'Brien v. Barry, 106 Mass., 300 (1871).
12. To sustain an action for malicious prosecution, it is a sufficient termi-
jiation of the criminal proceeding out of which it arose if there was a dis-
missal before trial ; a verdict and judgment on the merits is not essential.
Kelly V. Sage, 12 Kan.. 109 (1873).
13. An action may be maintained in any case where a malicious prosecu-
tion, without probable cause, has in fact been had and terminated, and the
<iefendant in such prosecution has sustained damage over and above his
i^axable costs in the case. Marbourg v. Smith, 11 Kan., 554 (1873).
14. Where an indictment is quashed and the defendant discharged by
'the judgment of the court, there is such a determination of the prosecu-
tion as is sufficient to support an action for malicious prosecution. It need
not appear that the defendant was finally acquitted of the criminal charge.
Hays v. Blizzard, SO Ind., 457(1868).
15. That the plaintiff should have been formally acquitted, on the crim-
inal proceedings, is not necessary, if the prosecution was abandoned
without any arrangement with the accused and not at his request. Brown
V. Randall, 86 Conn., 56.
16. Where in a suit for malicious prosecution the plaintiff desires to es-
'tablish the fact that the prosecution against him had terminated, and no
Tecorded evidence existed showing that fact, he may properly introduce
other evidence. If the complaint and warrant upon which the arrest was
made were not preserved by the police court, but have been lost and de-
stroyed, evidence of the fact, in connection with proof of their contents, may
4)e offered. Brown v. Randall, 36 Conn., 56 (1869).
17. In an action for malicious prosecution, the plaintiff giving no evi-
•dence of want of probable cause for the arrest complained of, and object-
ing to any evidence of the existence of probable cause, the complaint is
properly sustained. Such action cannot be maintained when the proceed-
ings under which the arrest complained of had been made were not termi-
nated, but an appeal was pending. Nebenzahl v. Townsend, 61 How.
<N. Y.) Pr., 353.
18. To maintain the action plaintiff must allege and prove a legal deter-
mination of the original action. And when noL proa, was entered of
record, and the defendant discharged, it is such a conclusion of the orig^
^nal action as will entitle hjm to sue. Hatch v. Cohen, 84 N. C, 602.
19. When an action has been dismissed at plaintiff's costs and is not com-
menced again, such dismissal is a sufficient termination of the suit in favor
•of the defendant as will authorize him to sue for malicious prosecution.
Marbourg v. Smith, 11 Elan., 554.
20. Where counsel for defendant, in an action alleged to have been pros-
ecuted maliciously, agreed without any authority from their client that the
<iismis8al of the action should be a bar to an action for malicious prosecu-
tion, it was held that such an agreement was a nullity. Marbourg v.
Smith, 11 Kan., 554.
21. The entry of a nolle prosequi with the consent of the defendant in a
<:riminal action is a sufficient termination of such action to enable the de-
END OF THE PROSECUTION^ 'diiS
f endant to maintain a suit for malicious prosecution. Moulton v. Beecher,
15 N. Y. Sup. Ct., 100; 1 Abb. N. Cas., 198.
22. On the trial of an action to recorer damages for an alleged' malicious
prosecution of the plaintiff by the defendant, it was established by parol
evidence that he had caused the plaintiiT to be arrested for a crime, and
that, owing to the failure of the defendant to appear as a witness against
'the plaintiff, the cause had been continued from time to time till the
plaintiff was finally allowed to go at liberty. It was held that the evidence
•sufficiently showed an end of such prosecution. Leever v. Hamill, 57
Ind., 428.
28. Plaintiff, after being held to the grand jury on a criminal charge by
:a committing magistrate, was discharged on habeas corpus by a circuit
Judge. He then brought suit for malicious prosecution. It was held:
1. That the discharge on habeas corpus was not a sufficient termination
of the criminal proceedings against him necessary to maintain an action.
2. That on habeas corpus the matters properly before the court are the return
and traverse thereto. 8. Irregularities of a committing magistrate, which
do not appear on the process, except the question of jurisdiction, will not
be inquired into on habeas corpus. Merriman v. Morgan, 7 Oreg., 68.
24. The general rule that an action for a malicious criminal prosecution
cannot be maintained unless the prosecution has terminated in an acquittal
of the accused is not applicable where the prosecution has terminated under
such circumstances that the accused had no opportunity to controvert the
facts alleged against him and to secure a determination thereon in his
favor. Swensgaard v. Davis, 88 Minn., 868; 28 N. W. Rep., 548 (18S5).
25. A discliarge on hearing by a magistrate having no jurisdiction to
try, but only to bind over or discharge, has been held sufficient. Sayles v.
Briggs, 4 Met, 421 ; Goodrich v. Warner, 21 Ck)nn., 482; Smith v. Ege, 52
Penn., 419; Secor v. Babcock, 2 Johns., 208.
26. So a discharge by magistrate without hearing, by the consent of the
prosecutor or with his acquiescence. Driggs v. Burton, 44 Vt., 124; Bur-
kett V. Sanata, 15 La., 887. So upon a nolle prosequu Chapman v. Woods,
4 Biackf., 501 ; 1 Am. Lead. Cas., 223; Brown v. Randall, 86 Conn., 56.
27. A discharge of the accused upon the return of a bill '* not found" by
the grand jury is sufficient. Payne v. Porter, Cro. Jac, 490; Thomas v.
Graff enreid, 2 Nott & McC, 148.
28. The right to maintain an action for a malicious criminal prosecution
accrues whenever the prosecution is disposed of in such a manner that it
cannot be revived, and the prosecutor, if he proceeds further, must bring
a fresh indictment. Casebeer v. Rice (Neb.;, 24 N. W. Rep., 698. The en-
tering of a noUe prosequi, is such a final determination. Woodworth v.
Mills (Wis.), 20 N. W. Rep., 728. See West v. Hayes (Ind.), 8 N. E. Rep.,
^82 and note; Murphy v. Moore, 11 Atl. Rep., 665.
29. A criminal prosecution may be said to have terminated (1) where
there is a verdict of not guilty ; (2) where the grand jury ignore a bill ;
<8) where a noUe prosequi is entered ; (4) where the accused has been dis-
charged from bail or imprisonment Lowe v. Wartman, 1 Atl. Rep., 489.
80. An order by the court in a criminal case that the prosecuting attor^
ney, having filed "reasons therefor, he have leave not to file an informa-
364 END OF THE FBOSECITTIOK.
tion," is a final order and an end of the prosecution. Spalding ▼. Lowe, 6&
Mich., 866; 23 N. W. Rep., 46 (1885).
81. Where a criminal prosecution is commenced before a justice of the
peace, and is afterwards dismissed with the intention of commencing^ i1»
again in the district court, and on the same day it is commenced in tlie
district court, Tidd, that such criminal prosecution before the justice of
the peace cannot constitute the basis of an action for a malicious proeecii-
tion while the criminal prosecution is still pending in the district court.
Schippel ▼. Norton, 16 Pac Rep., 804.
83. In order to maintain an action for malicious prosecution it must be
shown that the alleged malicious prosecution has been legally terminatecL
Striking the cause from the docket, on motion of the state's attorney, witii^
leave to reinstate the same, is not a legal termination of the prosecutioii*
An order striking a criminal cause from the docket with leaye to reinstate
the same does not discharge the defendant from the indictment It may
again be placed upon the docket and the defendant subjected to a trial
upon it. Blalock v. Randall, 76 HI., 224; Fibbs v. Allen, 1 Scam., 547.
88. At the trial of a suit for malicious prosecution defendant asked the
court to instruct the jury that plaintiff could not recover unless the evi-
dence showed that the prosecution was at an end. Held, that the instruc-
tion ought to have been given, as plaintiff had no cause of action until
there was a final acquittaL Glasgow v. Owen. 69 Tex., 167; 6 S. W. Rep.,
527(1887).
84. If, in an action for malicious prosecution, in instituting proceedings
before a magistrate against the plaintiff on a criminal charge, upon which
the plaintiff was bound over and subsequently indicted, it appear that the
indictment has been withdrawn by a noUe prosequi, on account of a for-
mal defect therein, and that a second indictment has been returned upon
the same evidence for the same or a substantive part of the same charge,
the original complaint and the proceedings thereon must be considered as
the actual cause of the second indictment. Bacon v. Towne, 68 Mass., 217
(1849>
85. The entry of a noUe prosequi for any reason other than some irregu-
larity or informality in the information itself is an end to the prosecution
of that case, and, unless such nolle is vacated at the same term, the de-
fendant can be further prosecuted for the same offense, if at all, only upon
a new complaint, arrest, and examination. Such entry of a noUeprosequi
is, therefore, such a final determination of the action that an action for its
malicious prosecution may be maintained. Woodworth v. Mills, 61 Wis*,
44; 20 N. W. Rep., 728 (1884>
CHAPTER X
PARTIES.
S 1. Parties.
3. PlaintifiPs — Who may sue.
8. Joinder of plaintiffs.
4. Defendants — Who may be sued.
5. In actions for malicious prosecution and false imprisonment.
6. Joinder of defendants.
7. Death of plaintiff.
8. Death of defendant.
9. The right of survivorship.
10. Joint and several liability.
11. A tort the several act of all concerned.
12. A joint action for a joint injury.
Applications of the law.
(1) Joint liability a question for the jury upon the evidence.
(3) The same — Instructions — Province of the jury.
(8) Joint criminal liability — What acts are not sufficient.
(4) Illegal arrests on suspicion of being pickpockets.
(5) Void warrant — Joint liability under, etc.
(6) Complainant not liable for the acts of the justice.
18. No contribution between wrong-doers.
14. Attorneys and clients.
15. Ck>rporations — The general rule.
16. Corporations liable for malicious prosecutions.
17. In the days of Coke and Sir William Blackstone.
18. An obsolete doctrine.
Applications of the law.
(1) A savings bank liable for malicious prosecution.
(3) Corporate liability for acts of employees, etc.
(8) Railroad company liable for false imprisonment.
19. Municipal corporations.
30. The prosecution of criminal offenders not ultra vires,
m. Husband and wife — The rule at common law.
23. Under statutes.
28. Infants — (1) As plaintiffs.
24. Infants — (3) As defendants.
Applications of the law.
Liability of infants in actions for malicioos txrosecution.
25. Master and servant.
26. Liability of partners — What concurrence will render both liable.
27. Personal representatives.
28. Principal and agent.
39. Misnomer — The use of wrong names.
366 PABTIE8.
§ 1. Parties. — The proper person to bring an action for the
wrongs treated of in this work is he in whom the legal right was
vested, and whose legal right has been affected by the injury
complained of.^ An injury to the absolute rights of a per-
son may consist of an assault, a battery, false imprisonment,
by wrongs to his reputation, as by libel or slander, and by
malicious prosecution. In all these cases, the party who has
received the injury must be made plaintiff, and he who com-
mitted it the defendant.*
Claims for mere personal torts which die with the person —
such as slander, assault and battery, false imprisonment, ma-
licious prosecution, crim. con., seduction, and the like — are
not assignable, so as to authorize the assignee to sue in his
own name.'
§ 2. Plaintilfs — Who may sue. — It is a general rule at
common law that only the person who has been injured can
maintain this action, though it has been held that a master
might maintain the action for a malicious prosecution of his
slave,* and a father for his minor son. Where the injury is to
the person, and suffered by more than one, though inflicted by
the same person at the same time, the action is usually several,
and each person who has sustained damages by reason of the
injury must bring his separate action.^ But where two or
more persons jointly incur expense in procuring tBeir dis-
charge from a joint arrest of both, it seems they may bring a
joint action."
§ 3. Joinder of plaintilfs. — Where several persons, who
are severally interested, sustain a joint damage, they may sue
either jointly or separately in respect thereof.^ But several
persons, having separate and distinct interests, as in a chattel,
1 Barbour on Parties, 158; Dawes ^ Locke v. Gibbs, 4 Ired. (N. C), 40
T. Peck, 8 T. R., 830, 832; Broom on (1848)^ Severence v. Judkins, 73 Me.,
Par., 198. See 7 T. R, 47; 1 East, 876 (1883).
244; 2Saund., 47(2; Ham. on Par., ^1 Chittj's Pleading. 64; McLeod
86; Baker t. Miller, 6 John., 195 v. McLeod, 78 Ala., 42 (1882).
(1810); Gibbe v. Chase, 10 Mass., « 1 Chittj's Pleading, 64; 10 Moore,
125 (1818); Strambaugh v. HoUan- 446; 14 Am. & Eng. Ency. Law, 37
baugh, 10 Serg. & R, 857 (1828). (1890).
2 3 Bouv. Inst, § 2735. ' Broom on Par., 210. See Oryton
'Butler V. New York & E. R. R v. Lithebye, 2 Saund., 115; WeUer v.
Co., 22 Barb., 110 (1856); Barbour on Baker, 2 WUs., 423.
Parties, 158.
FABTIES. 36T
cannot unite in replevin therefor.^ Kor, if the goods of
A. and B., the separate property of eaoh, be unlawfully disL
trained, can the owners join in an action of replevin.' For
it is a rule that where the interest affected and the damage^
sustained are respectively several, there must be separate
actions at the suit of the parties injured.' So in actions for
torts to the person, the parties aggrieved must sue separately,
as for assault and battery, or false imprisonment, and tho^
like.* Two or more persons cannot join in an action for
slander, though the terms in which the slander was uttered
comprehended them all; except in case of partners, who may
sue jointly as a firm for damages resulting to the firm from
words spoken or from a libel against them in respect of their
business.*
Two persons may bring a joint action for maliciously hold-
ing them to bail, in respect to the expenses jointly incurred in
obtaining their liberty, but for the imprisonment and the per-
sonal inconvenience resulting therefrom they should sue sepa-
rately.^ But where an action on the case for maintenance wa&
brought by several jointly, who had been the defendants in
the previous action, and had employed one attorney, to the^
amount of whose bill of costs the verdict was confined, such
action was held maintainable, the interest in the expenses
of the defense bein^a joint and not a several damage.''
§ 4. Defendants — Who may be sued. — As a general rule*
the person who makes the charge which sets the machinery
of the law in motion, or procures the prosecution, is liable ; and
this rule applies equally whether he does the act himself or
procures another to do it. It is enough that the defendant
instituted the prosecution, actively promoted it, or that it was.
1 8 Earring., 899. 135; Broom on Parties, 311; Harri-
> Broom on Par., 210. son v. Bevington, 8 C. & P., 708;
sCk>. litt, 1465; 2 Selw. N. P., Williamsv. Beaumont, 10 Bing., 270.
10th ed., 1185. ^ Barbour on Parties, 169; Foster
* Smithy. Crooker, Cro. Car., 512; ▼. Lawson, 8 Bing., 455; Hajthorn
Worseley v. Char nock, Cro. Eliz., v. Lawson, 3 C. & P., 196; Barrett
472; Barbour on Parties, 168; 2 t. CoUins, 10 Moore, 446.
Wms. Saund., 117. 7 Barbour on Parties, 168; Perchell
»Dyer, 191, pi. 113; Barbour on ▼. Watson, 8 M. & W., 691; Ward
Parties, 168; Gk}uld*s PI., 6, p. 78; y. Brampston, 8 Lev., 862.
Bobinson v. Marchant, 5 L. J. (N. S.),
•368 PABTIK8.
•carried on with his approbation and countenance; ^ or that
Xhe defendant procured the warrant and wagered that he
would convict the plaintiff.' But the defendant need not par-
ticipate in the execution of the prosecution. It is enough if
he makes out the aflSdavit maliciously, vexationsly and with-
out probable cause, without proof of further intervention on
his part.*
§ 5. lu actions for malicious proseention and false impris-
t>nment. — In the actions under consideration the party com-
mitting the tortious act must be made defendant.^ All per-
sons, natural and artificial, who have legal capacity to sue,
are liable to be sued for their tortious acts. An infant may
i>6 sued like an adult, for torts committed by him, as for slan-
ders, assaults, batteries, trespasses, and the like. But a slave,
who is not, in general, considered a person, but a thing, can-
not be sued for a tort; as an action against him would be
wholly fruitless. And though his master may, in some cases,
-be liable for the injury he has committed to property, he can-
•fiot be made responsible for his act.^
The person committing the injury is the party liable; and
whether he commits the wrong by his own hands or those of
.another, he is the one who does the injury; for he who acts
hy another acts by himself: qui facit per alium facit per se.
§ 6. Joinder of defendants. — The general rule in actions
of tort is that all persons concerned in the wrong are liable
to be charged as principals;' but the plaintiff may, at his elec-
tion, sue one or more without exposing himself to a plea in
abatement for non-joinder.^
There are injuries which, when committed by several, may
authorize a joint action against all the parties; but when in
legal contemplation several cannot concur in the act com-
plained of, separate actions must be brought against each.
1 Stansbury v. Fogle, 87 Md., 869 on Parties, 246; Ooodright v. Qovett,
(1872); Wells v. Parsons, 3 Harr. 7 T. R., 827; Feme v. Wood, 1 B. &
(Del.). 605 (1842); Grant y. Deuel, 8 P., 673.
Bob. (La.), 17; 88 Am. Dec., 228 » 8 Bout. Inst,, § 2766.
(1842); Burnap v. Abbot, Taney • Barbour on Parties, 203 ; Broom
<U. S.), 244 (1840). on Par., 248; Cranch v. White, 1
< Kline v. -Shuler, 8 Ired. (N. C), Bing. N. C, 418.
484 (1848). ^ Bristow v. James, 7 T. B., 269;
s Walser v. Thies, 66 Mo., 89 (1874). Sutton v. Clarke, 6 Taunt, 29; Bar-
^ Barbour on Parties, 199 ; Broom bour on Parties, 203.
PABTIEP. 869
The cases of several persons joining in the publication of a
libel, a malicious prosecution, an assault and battery and false
imprisonment are cases of the first kind; slander is a case of
the second kind.^ When persons have committed an injury
which is capable of being done by several, they may b3 jointly
sued, or the plaintiff may sue one or more of them without the
-others as he may see fit.*
§ 7. Death of the plaintiff. — For a wrong done to the per-
ison no action will lie at the common law in the name of the
executor or administrator of the injured party after his de-
-cease, when the action must be in form ex delicto; the maxim,
actio personalia moritur cum persona^ applies in such cases.
And under this rule the wife or husband, parent or child of
the party killed by the wrongful act, negligence or default of
.another, cannot recover any pecuniary compensation for the
injury sustained by the death of such person.'
The common-law rule on this subject has, however, been
•changed by statute in England, as well as in many of the
states of our Union, so far as to allow an action to be brought
in certain cases by the personal representatives for an injury
done to their testator or intestate resulting in his death. It
is provided by statute in New York that, whenever the death
of a person shall be caused by wrongful act, neglect or de-
fault, such as would (had death not ensued) have entitled the
party injured to maintain an action and recover damages in
respect thereof, then the person who, or the corporation which,
would have been liable if death had not ensued, shall be liable
to an action for damages, notwithstanding the death of the
person. Such actions must be brought by the personal represen-
tatives of the deceased.^ Similar statutes exist in other states.
§ 8. Death of the defendant. — For a tort committed to the
pereotiy at common law no action can be maintained against
the personal representatives of the wrong-doer.^
1 Thomas v. Bumsey, S.John., 83 * Barbour on Parties, 174; Baker
<1810). y. Bolton, 1 Camp., 408.
2 Bac. Ab., Action, Qai Tarn, D. ; « Laws of N. T., 1847, p. 675; 1849,
RolL Ab., 707; 8 East, 62; 7 T. R., p. 888.
259: 5 id., 651; 6 Taunt, 29; Low » Barbour on Parties, 282; Broom
y. Mumford, 14 John., 426 (1817); on Parties, 285 ; Le Masan y. Dixon,
<GuiUe y. Swan, 19 id., 881 (1825). Sir W. Jones, 178.
24
iJ70
Bat it is provided by statute (3 and 4 Wm. lY., eh. 43, § 12)
in England, that trespass or trespass on the case may be main-
tained against executors or administrators for any wron^
committed by the deceased against another, in respect of his
property, real or personal, if committed within six months
before his decease.^ Similar statutes prevail in many of the
states of our Union.
§ 9. The right of survivorship.— Where one of several
persons jointly interested dies, the remedy for an injury to
the joint interest survives to the others, and the personal rep-
resentatives of the deceased should not be joined with them,
nor can such representative sue alone. In such a case the rule
is as in the case of any community of interest: the remedy
survives, but not the right.'
If the husband survive the wife, he may sue for any tort to
the wife's person or property for which he might have sued
alone during the coverture.' The right of action for a tort of
that description will not survive unless there be special dam-
age to the husband.*
If one of several plaintiffs, in an action ex delicto^ dies pend-
ing the action, the suit does not abate: the survivor may
prosecute it to the final end.*
§ 10. Joint and several liability.— Chi tty: "If in legal
consideration the act complained of could not have been com-
mitted by several persons, and can only be considered the tort
of the actual aggressor, or the distinct tort of each, a separate
action against the actual wrong-doer pnly, or against each,
must be brought."* Thornton, J.: "It is the general rule,
that where an act is done by the co-operation of several per-
sons, they may be sued jointly or severally; but one is never
liable for the injury of another, unless they act in concert ;
and several will not be held liable for the acts of one without
the co-operation, or their conduct naturally produced the acts
which resulted in injury. Where the acts of different persons
are entirely distinct and separate as to any aid, advice, coansel
1 Barbour on Parties, 283. Ab., Baron and Feme (G.); Ck>in.
'Barbour on Parties, 193; Broom Dig., Bar. and Feme (W.) (X.).
on Par., 213; Rex v. Collector of ^ Barbour on Parties, 198; Broom
Customs, 3 M. & S., 225; Bouv. oti Par., 288.
Inst, § 2754. * Bouv. Inst. § 2754.
s Barbour on Parties, 288 ; Yin. * 1 Chitty's Pleadings, 87.
—\
PARTIES, 371
or countenance from one to the other, there cannot be a joint
liability." *
§ 1 1. A tort the seyeral act of all concerned. — If several
persons are sued, and in point of law the tort could not.be
joint, they may demur, or move in arrest of judgment after
verdict, or a nolle prosequi may be entered, and the objection
obviated, but in such cases the objection must be apparent on
the face of the declaration. If several persons jointly com-
mit a tort, some, or all, may be sued jointly, or some sepa-
rately; for a tort is in its nature the separate act of each.^
§ 12. A joint action for a joint iignry. — When there is a
joint injury a joint action may be sustained, but the evidence
and damages must be confined to such joint injury or cause of
action; as when the plaintiffs are jointly engaged in busi-
ness, and bring an action for maliciously and without probable
cause suing out an attachment in aid of a suit against them
jointly upon a joint note, and causing it to be levied upon
property jointly owned by them.' If then their joint or part-
nership credit has been injuriously affected, their business
stopped or assets depreciated, they may rightly join in an ac-
tion to recover appropriate damages therefor.^
Applications of the law. —
(1) Joint liability a question for the jury upon the evidence — Pereons tti-
stituting proceedings not accountable — Collateral results.
Butts recovered a judgment against Fenelon, upon which an execution
was issued and returned unsatisfied. He then commenced supplemental
proceedings upon the judgment before one Jacobs, who was acting as a
oourt commissioner. Mrs. Fenelon was examined as a witness touching
her husband's property, and upon her refusing to answer certain ques-
tions the commissioner committed her to jail, there to remain until she
was willing to answer. She was afterwards discharged, because it ap-
peared that the commissioner was not a commissioner at all. She then
brought an action, joining her husband with her, against Butts, who had
caused the supplemental proceedings to be instituted, and Jacobs, the pre-
1 Teazel t. Alexander et aLy 58 ^Donnell v. Jones, 13 Ala. (N. S.),
m., 261 (1871). 600; Patton v. Gurney, 17 Mass.,
* Teazel ▼• Alexander et al., 58 185; Medbury t. Watson, 6 Met.,
m., 261 (1871). 267; CoUyer on Partnership, § 689;
* Cochrane t. Quackenbush, 29 Cochrane v. Quackenbush, 29 Minn. ^
Minn., 876; 18 N. W. Bep., 164 876(1882).
(18S2X
372 PASTIES.
tended cotmnissioner. On the trial it appeared that Jacobs acted in good
faith, but his appointment as court commissioner was illegal. Butts denied
that he said anything to the coun commissioner about committing Mrs.
Fenelon on her refusing to answer questions, or that he in any way insti-
gated her imprisonment. It did appear that he made the affidavit upon
which Jacobs issued his order requiring Mrs. Fenelon to appear and an-
swer, but it did not appear that he knew she would refuse to answer ques-
tions asked and be committed for contempt. Her imprisonment was not
the necessary or probable consequence of the proceeding instituted by the
defendant. The court instructed the jury that the defendant, having in-
stituted and directed the proceedings, was responsible in damages for the
wrongful imprisonment.
On appeal. Cole, J., said: *'We think the court erred in withdrawing
from the jury the question whether the defendant did in fact instigate the
imprisonment. That was a disputed fact, as we understand the testimony.
In support of the ruling of the court below the plaintiff relies upon a re-
mark of Mr. Justice Lyon in Bonesteel v. Bonesteel, 28 Wis., 245, 253, to
the effect that one who sets the machinery of the court in motion, and
directs its operations until it culminates in an unlawful arrest upon a void
process, must be held liable in damages to the injured party.
" The remark is strictly true as applied to the facts of that case, which
was an unlawful arrest upon a writ of ne exeat. The defendant, Mrs. Bone-
steel, there procured the writ upon which the plaintiff was arrested ; in
other words, she caused him to be arrested on a void process. Her agency
in the matter was direct and potent. Here, unless we say that a party
who makes an affidavit on which supplemental proceedings are taken by
an officer having no jurisdiction is necessarily responsible for all the pos-
sible consequences and for a commitment which the officer may deem it
his duty to make in vindication of the law, the question whether the de-
fendant directed and instigated the imprisonment of Mrs. Fenelon should
have been submitted to the jury. It seems to us the mere fact that the
defendant made the affidavit, under the circumstances, is not enough to
warrant the court in ruling, as a matter of law, that he was liable for the
imprisonment. It should appear that he did something more to bring about
or cause the imprisonment." The judgment is reversed. Fenelon v. Butts,
49 Wis., 892; 6 N. W. Rep., 602 (1880).
<2) Joint liability •^Instructiona-^Provinoe of the jury — Arrest on vian
for a breach of the peace,
Bannert Lewis sued Kahn and Philbin for false imprisonment. Kahn
kept a tailor shop, two doors from Lewis, and did the work for the police
in that precinct. One day something was thrown through Kahn*8 window,
a pane of glass was broken, Kahn rushed over to Lewis* store and grabbed
hold of one of his workmen, who was outside the entrance carrying in some
goods preparatory to closing the store, and claimed that he threw the stone.
The workman released himself. Kahn went away and presently returned
with two policemen, one of whom was the defendant Philbin. The officers
entered the building to arrest the workman, but failed to find him. Then
PARTIES. 373"
Kahn stated that he held the plaintiff, Lewis, responsible, and directed the
policemen to arrest him. An altercation ensued. The plaintiff was ar«
rested on a charge of disorderly oondact. 'On the trial of the action for
false imprisonment there was a judgment in favor of the plaintiff and the
defendants appealed.
Larremore, C. J. : With regard to the defendant Eahn's individual rela-
tion to the arrest, the case seems to have been properly presented to the
jury. But we think error was committed in that portion of the judge's
charge relating to defendant Philbin, which will render a new trial neces-
sary. Undoubtedly, Philbin was brought to the scene of the arrest by
Kahn, and he (Philbin) avers that, although he entered the plaintiff's
premises, he did so with the permission of plaintiff*s wife. Philbin further
testifies that after he came out on the sidewalk again plaintiff and his wife
applied opprobrious epithets to himself and other policemen present. *' 1
started to drive the crowd away, and I turned around and said to Mrs.
Lewis: 'Don't make any disturbance around here, go inside.' Mrs. Lewis
laughed, and said: 'You thieves, loafers and pickpockets,' addressed to
me. Ofiicers Taylor and Smith were there alsa I went outside to drive
the crowd away, they numbering all of a hundred, and Mr. Lewis was
hollering. I asked him the second time not to make any disturbance.
Mrs. Lewis said: 'This is my property and I will do what I please.' I told
him to go in the third time; if he did not keep quiet and go inside, I would
lock him up on a charge of disorderly conduct He said : ' I will dare
and defy you."* The testimony of Kahn corroborates that of the po-
liceman to the effect that plaintiff was guilty of noisy, violent and defiant
conduct in the open street, and in presence of a crowd, after having been
warned by the policeman to desist It further appears that the charge at
the station-house against plaintiff was made by Philbin, and for disorderly
conduct With this evidence in the case it was error for the trial judge to
charge the jury as matter of law that no question of disorderly conduct or
breach of the peace could arise for their determination. We regard the
rule stated in Howell v. Jackson, 6 Car. & P., 723, as the correct one : " ' If
the plaintiff made such a noise and disturbance as would create alarm, and
would disquiet the neighborhood and the persons passing along the adja-
cent street, that would be such a breach of the peace as would not only
authorize the landlord to turn the plaintiff out of the house, but it would
also give the landlord a right to have the plaintiff taken into custody if
this occurred in the view of the watchman.' ... In a case like the
present it should be left to the jury to determine whether the conduct of
the arrested party was calculated to disturb and alarm the neighborhood,
to attract a crowd, to lead to disorder or riot." See, also, Mclntyre v.
Raduns, 14 Jones & S., 128. The question as to whether a breach of the
peace had been committed by plaintiff should have been sent to the jury»
and they should further have been charged that if they found affirma-
tively on this point and that the officer had made the arrest on his own
responsibility because of such breach of the peace, a verdict should be
given in favor of both defendants. Lewis v. Kahn, 5 N. Y. Sup., 661
(1889).
874: PARTIES.
(8) Joint criminal liability^ What acU are not sufficient.
On an information charging;, the false imprisonment of William Bar>
nett, the appeUant, Walker, was jointly impleaded, and being alone upon
trial, was convicted. Some time before the alleged offense, a dispute arose
between the parties named in the information, on one side, and a tenant
of Bamett, the alleged injured party. The parties named in the informa-
tion took exceptions to certain statements about transactions made by
Bamett, as a witness on a trial in court involving the matter. On the day
alleged in the information, Bamett was intercepted on his way to his
cotton-patch by the four oo-defendants of appellant, and was by one or
more of them threatened, cursed and abused for his testimony about the
matter, and finally forced by them to sign a '*lie bill," or a paper admit-
ting that his testimony was false. It was shown that, while Harnett was
being thus restrained, abused and cursed, the appellant, flushed and ap-
parently angry, and having a penknife in his hand, came to a point on his
own land, separated by a fence from his co-defendants and Bamett, sat
down on the ground and observed all that transpired, withcrut saying or
doing anything, either to aid or encourage or prevent his co-defendants
from restraining said Barnett.
Hurt, J. : Appellant was tried separately, and convicted, and appeals to
this court. We have given the statement of facts a careful examination,
and the conclusion we have reached is that the evidence fails to connect
the appellant with the commission of the offense for which he stands con-
victed, with reasonable certainty; and it would be a dangerous precedent
to sustain this conviction. Proof that he did nothing to prevent others
from the commission of the offense did not tend to show inculpatory facts,
and hence his objections to such evidence should have been sustained.
The judgment is reversed. Walker v. State, 25 Tex. Ap. 448, 8 S. W. Bep.»
647 (1888).
<4) Illegal arrests on suspicion of being pickpockets ^Extent of the joint
liability of different officers.
Action for an alleged false imprisonment. At the trial it appeared from
the plaintiff's testimony that he lived in Worcester, and was a dealer in
wool and rags; that he arrived in Springfield about 12 M. ; that he came
from the New York & New England Railroad depot to the Boston & Al-
bany Railroad depot in a hack ; that he had some ten minutes to spare, as
he intended to take the 12:49 P. M. train for Worcester; that he went into
the gentlemen's waiting-room, and sat down on a settee with a Mr. Pierce,
of Providence, who had been with him all day; that he had three bundles
of samples with him, of ordinary size; that before the train . arrived, four
men came in; that one of them spoke to witness and Pierce, and said he
wanted they should " go and see the chief; " that, not understanding what
he meant, he asked him to repeat, which he did, and he replied that he
could not, for he had a ticket for Worcester, and was waiting for the train ;
that the man then took him by the collar, and said, ** I want you ; come
along; I have been watching you all day;" that as this was done. Pierce
said, "Who are you? What right have you to detain us in this way?**
that the man then threw back his coat and'said, "We are detectivee;'*
PARTIES. 875
that the men then took him and Pierce, in spite of their protestations of
innocence, to the police station, where he showed his business card, and
bank-book with his name and address thereon, also letters addressed to
him, and his bundles and samples were opened; that they were put into a
room, and the door looked ; that in a short time defendant Pettis, the city
marshal, came to the door; that witness told him they wanted to know
why they were detained ; and also told him they belonged in Worcester,
showed him the same means of identification shown the other officers, and
asked for counsel and for an opportunity to telegraph to Worcester; that
Pettis said, '* Be good boys ; I will go out and investigate your case;'* that
he (Pettis) came back about 5 P. M. ; the outside door was closed; that he
opened it and came to the grating as before, and said, " Well, boys, how
are you getting along? " and said he had been very busy ; that he then
asked them if they wanted to go to Worcester, and being answered in the
affirmative, said, "I will send you off on the next train; I guess you are
all right. The next train goes at 6 or 6 : 80 P. M. ; I will take you myself,
or send some one to escort you to the depot." He further testified: ** We
waited till about 7 : SO P. M. ; no one came. We tapped on the door, and
Mr. Wright came to us; said he told the city marshal we were all right;
be had no doubt we wanted to go ; that the marshal must have forgotten
us. He returned in a few moments and said, ' Get ready.* That was be*
tween fifteen and twenty minutes of 8 o'clock. The doors were unlocked
by Mr. Wright, and we were turned over by him to two policemen in citi*
zens' clothes, and they went to the depot with us — defendant Graves with
me. We locked arms, and he walked side of me. They remained on the
platform till the train started, and saw that we were on the train. We
left on the 8 o'clock train. A few days after, I saw Mr. Pettis in Spring-
field ; asked who the men were who arrested us ; he gave the names of
Hadd and Wheeler, and said that the other two were detectives from Pink-
erton's agency, and that he hired them by consent of the mayor, defendant
Metcalf. I asked him if he recognized me as the man he locked up, and
he said he did." There was evidence that plaintiff was in Hazardville the
morning of May 25th, and that he left that place for Springfield on the 11 : 20
A. M. train, and that plaintiff and Pierce were driven from the New York
A New England depot in Springfield to the Boston & Albany depot (where
the arrest was made) about 12 o'clock. Pierce also testified substantially
as did the plaintiff, and there was evidence of other parties who witnessed
the arrest. It was in evidence, and not disputed, that the day on which
the arrest took place was the day on which the two hundred and fiftieth
anniversary of the ^ttlement of Springfield was being celebrated ; that
Hadd and Wheeler were police officers of Springfield; that defendant
Wright was assistant marshal, and duly appointed keeper of the lock-up
where plaintiff was detained; that defendant Pettis was city marshal, and
defendant Graves a special policeman, of Springfield.
One Clark, for defendants, testified that he was depot master at Spring*
field ; that on the day of the arrest, and the day prior to that, several per*
sons had told him that on leaving trains their pockets had been picked ;
that he informed defendant Hadd of these complaints, and told him he
thought the depot was being worked by pickpockets. Defendant Hadd
876 PARTIES.
testified that defendant Clark told him piokpockets were at work in the
depot; that aa he and one Butler, the ofl9oer who first spoke to the plaintiif
and Pierce, as above stated, were going along the south side of the depot,
Butler said: ** There are two pickpockets sitting on that settee," pointing
to plaintiff and Pierce; that they (the of9.cers) then went in and told th»
plaintiff and Pierce that they wanted them to go and see the chief. He
further testified that he arrested the men because of what Butler said to
him; that he did not think they w«ne pickpockets until he heard what
Butler said. This witness substantially admitted having heard all of the
offers made by plaintiff to identify himself, and having seen all the evi-
dence of identity offered by him. Defendant Wheeler testified tiiat he
saw the plaintiff and Pierce at the depot just before the 12:49 train went,
crowding in and out among the passengers ; that the train went out, and
the two then went back to the waiting-room ; that he then went with Batlar
and Hadd into the waiting-room where the arrest was made; that he after*
wards told the city marshal of the arrest ; that the men were airested be-
cause he (witness) thought they had something to do with the pocket-books
that had been stolen. Defendant CMalley testified that he was present
when the men were arrested, but not when they were released. Defend-
ant Charles M. Wright testified that he was not present when the men
were brought in ; that about 7 :80 o'clock he went to the marshal's office,
and asked what was to be done with the men ; that the marshal said,.
** Send some one up to the depot with them ; '* that he (witness) then went
to the lock-up, and told plaintiff and Pierce that they could go, and told
defendant Graves and another special police officer to go with them. De-
fendant Pettis testified that the detectives were sent to him by Pinkerton*a
agency, and he told them that all he wanted was for them to point out to
the defendants Hadd and Wheeler any one whom they knew to be pick-
pockets— dangerous men; that he saw the plaintiff and Pierce after they
were looked up, and asked them if they would go to Worcester on being
released ; that they said they would ; that he said he would send them on
the first train that should go ; that he forgot about them, and they were
not sent on the next train, but on one that went about 8 o'clock ; that he
(witness) saw the men between 5 and 6 o'clock. Defendant Ghraves testis
fied that he came to the police station a little before 8 o'clock ; that Assist*
ant Marshal Wright directed him and another special officer to go with
plaintiff and Pierce to the depot; that he walked with plaintiff; that they
arrived at the depot about the time the train stiCrted; that the plaintiff en-
tered the train, and that he (witness) stood on the platform till the train
started.
The jury found for the plaintiff against the defendants Pettis, Wheeler»
Wright, Hadd and Graves, and by order of the court found in favor of
the defendant Metcalf and defendant 0*Malley.
Holmes, J. : This is an action for false imprisonment against seven de-
fendants, five of whom the jury have found guilty. Of these five the
defendants Hadd and Wheeler made the original arrest, without a war-
rant, on a charge of felony. We cannot say that the evidence, if believed,
showed that Hadd and Wheeler had reasonable grounds to suspect the
plaintiff of being a pickpocket (supposing the justification to be well
. PABTIES. 37T
pleaded), whether the qtiestion was properly one for the jury, or was for.
^he court like other qnestions of reasonable cause. Compare Rohan v..
Sawin, 5 Cush., 281 ; Davis v. Russell. 6 Bing:., 854; Hill v. Tates, 8 Taunt.,.
182; Mure ▼. Kaye, 4 Taunt, 84; 2 Hawk. P. a, ch« 12, § 18; 2 Co. Inst,.
62; Good t. French, 115 Mass., 201. If the original arrest was wrongful,
those who made it were answerable for the subsequent detention of the-
plaintiff under it Murphy v. Countiss, 1 Har., 148; Powell t. Hpdgetts,
2 Car. & P., 483. And although the officers who carried the plaintiff in
custody from the look-up to the railroad station, after they had determined^
tr release him, would have been liable even if the previous imprisonment
lud been lawful, we do not think this continuation of the unlawful im-
prisonment so remote that the jury could not properly hold Hadd and
Wheeler responsible for it.
The defendant Pettis was city marshal ; and, whether responsible for the
arrest and detention of the plaintiff in the lock-up or not, sent the plaintiffs
to the railroad station in custody, after he had reason to believe him inno-
cent, and had made up his mind to release him. The defendant Wright,
the assistant marshal, took part in sending the plaintiff to the station, and^
the defendant (Graves was the officer who took him there, only releasing
him when on the train, and just before it started. As we have said, we
think that even if the arrest had been lawful the officers would have had'
no right to prolong the imprisonment beyond the doors of the lock-up, for
the purpose of sending the plaintiff out of town, and would have been lia-
ble whether they had a right to release him without bringing him before a
magistrate or not See M*Cloughan v. Clayton, 8 K C. L., 478. 480 ; Caffrey
V. Drugan, 144 Mass., 204; 11 N. E. Rep., 06; 1 Hale. P. C, 502; Brock v.
Stimson, lOS Mass., 520; Phillips v. Fadden, 125 Mass., 10& The only pur-
pose for which an imprisonment without warrant can be justified, in cir-
cumstances like the present, is that future proceedings may be instituted
in due form. Rohan v. Sawin, vbi supra, at p. 285. A fortiori, these offi-
cers are liable if the original arrest was unlawful, for then the whole de-
tention under it was unlawful. Aaron v. Alexander. 8 Camp., 85; Griffin-
V. Coleman, 4 Hurl. & N., 265. It thus appears that the evidence war-
ranted a verdict against each of the defendants named, and against all of
them jointly, and that the instructions asked to the contrary were properly
refused.
If the arrest had been made upon reasonable grounds of suspicion against
the plaintiff, the defendants Hadd and Wheeler could not have been held
liable for the subsequent wrongful imprisonment, in which they took no-
part On the other hand. Graves, at least, was not answerable for the im-
prisonment before the plaintiff was taken from the police station to the
train, as he took no part in that Aaron v. Alexander and Powell v.
Hodgetts, ubi supra. It follows that a verdict could be found against the
five defendants jointly only for the imprisonment between the lock-up and
the train, and on the ground that the arrest was wrongful. We regn t
that it does not appear that these considerations were brought distinctly^
to the jury's attention. But we cannot say that they were not ; the except
tions are only to the refusal of rulings which were properly refused. And
as the jury were f uUy instructed that they could not find a verdict against
378 PABTIES.
4wo or more defendants unless they found that all such defendants par-
ticipated in the same imprisonment, and were parties to a joint wrong,
^e must assume that the verdict went on the proper ground, and covered
4he proper time. Exceptions overruled. Bath v. Metcalf, 145 Mass., 274;
&4N. E. Bep., 183(1887).
<5) Joint liability, void toarrant — Evidence in mitigation improper wJien
plaintiff disclaims aU right to exemplary damages.
Mr. Frazier brought an action against Martha E. Turner, David Turner and
-•others to recover damages for alleged false imprisonment. On the trial the
plaintiff recovered, and from the judgment rendered in his favor the ap-
fiellants, Martha E. Turner and David Turner, appealed. Martha E. Turner
tn her answer denied malice and participation in the arrest made, setting
•forth that she simply made her complaint to the justice who issued the
'^Tit, and that in so making complaint she acted upon the advice of the
-district attorney, and that such attorney drew the complaint. On the
trial, J. K. Taylor, the justice of the peace who issued the warrant on
which the plaintiff was arrested, testified that the defendants Martha E.
Turner and David Turner came to his house ; Mrs. Turner signed a com-
f)Iaint and upon it he issued a warrant. Mra. Turner took the warrant,
•saying she wanted Mr. Ck>nger, the deputy-sheriff, to serve it. Conger
4ived at the village of Oxford, about five miles. She and Mr. Turner went
«way together, taking the warrant with them, but came back to the jus-
tice's house in the afternoon. Conger brought Frazier there about the same
^ime. Frazier was required to give bail ; afterwards there was a trial last-
ing two days and he was discharged. Mrs. Turner, when she gave the
-warrant to Conger, stated that she wanted it served on Frazier right away.
David Turner was with her. On the trial the plaintiff stated that he made
no claim to punitory damages and no claim on account of malice, only
actual damages. The defendants offered to show that they had, previoua
to the application for the warrant, made a statement of the facts to the
•district attorney and that he drew up the complaint. This was objected
to on the ground that as there was no claim that the arrest was made ma-
liciously, and no claim for punitory datnages, the motives which actuated
4hr) defendants in making the complaint and procuring the arrest were im-
material. The complaint was for the larceny of a promissory note. The
<ra]ue of the note was not stated.
In delivering the opinion, Taylor, J., said: "On this appeal it is con-
tended by the learned counsel for the plaintiff and respondent that the
^complaint and warrant do not state facts sufficient to show that the plaint-
iff had committed any crime known to the law ; that the warrant was
iibsolutely void upon its face, and was therefore no justification to the
officer serving the same for making the arrest complained of; and it is also
insisted that there is sufficient evidence to show that the appellants, Martin
£. and David Turner, directed the officer serving such void warrant to
make such arrest, and are therefore liable in the law for such unlawful
4irrest. On the part of the appellants, the counsel claim that the warrant
^'as not void on its face, and, if it was voidable, it could have been amended
4>y the justice on the return of the warrant, on the application of the slate.
PABTIES. 379
We think that there can be no doubt but that the complaint does not state
€act8 showing that the plaintiff had committed any crime, and that the
warrant was void on its face for the same reason. The warrant was void
•because it does not state that the thing allied to have been stolen was of
•any value.
" To the claim that the warrant was amendable, it is answered — First,
that it was not amended, and that no application to amend the same was
made in the proceedings in the justice's court ; and second, that the defect
4n the complaint and warrant was not amendable under sections 4708 and
4742 of the Revised Statutes of Wisconsin of 1878. The value of the thing
alleged to have been stolen is a material allegation under our statute, as
different degrees of punishment are prescribed for the larceny of property
•depending upon such value. See sec. 4415, R. S. Wis. 1878. And an in-
formation, warrant or complaint which does not state the value of the
4;hing stolen, when the punishment of the crime depends upon such value^
is clearly a substantial defect, and renders the warrant or information void»
and wholly insufficient to support any conviction or judgment thereon*
2 Bish. Crim. Proc., §§ 713, 714, 786; Hope v. Com., 9 Mete., 184; Wilson
V. State, 1 Port. (Ala.), 118; State v. Daniels, 82 Mo., 658; Johnson v. State,
29 Tex., 493; Steuer v. State, 59 Wi&, 472; 18 N. W. Bep., 488; Gelzen-
leuchter v. Niemeyer, 64 Wis., 816; 25 N. W. Bep„ 442.
'* We think the defect in this complaint and warrant was such as ren*
dered all proceedings in the case void and the arrest thereon unlawful, and
was not amendable under said section 4708 of the Revised Statutes of Wis-
<x>n8in, so as to legalize the arrest and imprisonment thereunder. Whether
the complaint and warrant were void for not sufficiently describing the
note need not be considered in this case, and it may be admitted that
«uch general description was sufficient
" The warrant, being void on its face, was no justification for the arrest
by the deputy-sheriff; and the appellant having delivered the void warrant
to the sheriff, and having directed him to make the arrest on such void
warrant, is equally liable with the sheriff. This was fully discussed and
decided by this court in the case of Ghelzenleuchter v. Niemeyer, supra.
There is as much evidence of the participation of the appellants in making
the arrest in this case as in the case above cited. The question as to
whether the appellants participated in procuring the arrest of the respond-
ent under the void warrant was properly submitted to the jury by the
learned circuit judge. There was no error in excluding the evidence
offered by the appellants that they had submitted the facts of the case to
the district attorney, and acted under his advice. Having participated in
the arrest of plaintiff under a void warrant, they are equally liable as the
officer making such arrest. The judgment is affbrmed." Frazier v. Tur-
ner, 76 Wis., 562; 45 N. W. Rep., 411 (1890).
<6) Complainant not liable for the acts of the justice ^Changing com'
plaint
Jacob Frankfurter instigated the suing out by Nicholas Blocks of a state
warrant against one W. H. Bryan. The complaint on which it issued con*
tained an accusation of larceny alone. During the examination the jua*
tlce, on his own motion, changed the charge of larceny to that of **di8-
380 PARTIES.
orderly** condnct, aod imposed a fine of |8 and costs. In default of
payment, after some pr^iminaries the justice issued a tnittimua command*
ing the constable to take him to jail, and upon which he was committed^
etc. Afterwards he brought an action for noalicious prosecution against
Frankfurter, Henry FaiTar, the justice and Nicholas Blocka On the trial
the suit was dismissed as to Farrar and the justice. On appeal it was held
that the justice in changing the charge from larceny to disorderly condnct
acted outside of any authority which the law gave him by reason of the-
accusation of larceny, and he became as much outside of the protection
of the law in respect to that act and what followed as if he had held no
office at all. The act itself was by implication a dismissal of the charge of
larceny, and Frankfurter and Blocks could not be held responsible for the
illegal acts of the justice; there being no evidence to show that they or
either of them requested or in any manner directed the justice to change
the charge, inflict the fine or issue the mittimtui, the justice having done
all of these things on his own motion. Frankfurter v. Bryan, 12 Brad. (Ill*
App.), 649(1888).
§ 13. No contrlbation between wrong-doers.— In actiona
growing out of that class of torts characterized by the exist-
ence of a wrongful intent, as distinguished from torts arising
from negligeuoe, the rule is recognized as just which compels
each of the wrong-doers, when sued, to bear and assume the
responsibility of all. The injured party may sue one, any
number, or all, chargeable with the tort, and it is no defense,
if one is sued, that the others are not required to share his
responsibility; nor, where all are sued, would it be any de-
fense that one only is made to assume the liability for the acta
of all. The reason is, there can be no contribution as between
them.* '* While the law permits all the wrong-doers to be
proceeded against jointly, it also leaves the party injured at
liberty to pursue any one of them severally, or any number
less than the whole, and to enforce his remedy regardless of
the participation of the others."*
§ 1 4. Attorneys and clients. — An attorney and client may
be treated as joint trespassers for an illegal arrest made by
the attorney or his agent.' And where an arrest is made
under process which is afterwards set aside for irregularity,
the attorney in the suit is liable for trespass as well as the
plaintiff.^
iCk)olej, Torts, ISa < Barker v. Braham^ 8 Wila., 868;
2 Gulf, G & a P. R'y Co. v. Bates v. Pilling, 6 R & C, 88.
James, 78 Tex., 12 ; 10 S. E. Rep., 744 * Codington v. Lloyd, 8 Ad. & EL,.
(1889). 449.
PARTIES. 881
§ 16. Corporations — The general rule. — Corporations
are liable, by the common law, for torts committed or author-
ized by them; and for this purpose the acts of their agents
are regarded as the acts of the corporation.^ And this is so
though the agent was not appointed by seal, if such act be
an ordinary service within the scope of his authority, such as
■a distress professedly made under a statute for a debt due
to the corporation.* A jury may infer the agency from an
adoption of the act by the corporation; as from their having
received the proceeds of the seizure,' and actions for malicious
{ rosecution and false imprisonment will lie accordingly.^
§ 16. Corporations liable for malicious prosecutions. —
It is too late now to discuss the question, once much debated,
whether a corporation can commit a trespass, or is liable in
an action on the case, or subject generally to actions of tort
as individuals are. It has been contended that an action for
malicious prosecution so differs from other actions that it can-
not be maintained against a corporation. But although, in
order to maintain such an action, both malice and want of
probable cause must exist, yet proof of want of probable cause
will warrant the jury in inferring malice.* And by the great
weight of modern authority, a corporation may be liable even
when a fraudulent or malicious intent in fact is necessary to
be proved, the fraud or malice of its authorized agents being
imputable to the corporation as in actions for fraudulent rep-
resentations.*
1 Barbour on Parties, 207; Beach Mass., 448 (1881); Ripley v. McBar-
V. The Pulton Bank, 7 Cow. (N. Y.), ron, 125 Mass., 272 (1H78); MitcheU
485 (1827); Hawkins v. Dutchess O. v. Jenkins, 5 B. & Ad., 588; 2 Nev.
S. Co., 2 Wend., 452 (1829); Foster & Man., 801 ( ); Stewart v. Son-
V. Essex Bank, 17 Mass., 508(1821); neborne, 08 U. S., 187 (1878); Stone
McCready v. Guardian, etc., 9 Serg. v. Crocker, 24 Pick., 81 (1831).
^ R., 94 (1822). 6 Reed v. Home Savings Bank, 180
2 Barbour on Parties, 207; Broom Mass., 448 (1881); Vance v. Erie Rail-
on Par., 250; Carey v. Mathews, way, 8 Vroom (82 N. J. L.), 834
cited 1 Salk., 191. (1867); Copley v. Orover & Baker
'Smith V. Birmingham G. Co., 1 Co., 2 Woods, 494 (1875); Goodspeed
Ad. &EI., 526; YarboroaghT. Bank v. East Had. Bank, 22 Conn., 580
of England, 16 East, 6. (1858); Carter v. Howe Mach. Co., 51
* Broom on Par., 250; Bar'oour on Md., 290 (1878); Wheless v. Second
Parties*, 207. Nat. Bank, 1 Baxter (Tenn.), 469
^ Reed v. Home Savings Bank, 180 (1872) ; WiUiams v. Planters' Ins. Co.,
882 PABTIE8.
§ 1 7. Corporations In the days of Coke and Sir William
Blackstone. — Coke and Blackstone say that a corporation,
being ideal and intangible, cannot maintain nor be made de-
fendant to an action for personal injuries, *^for it can neither
beat nor be beaten in its body politic." It cannot '^ be com-
mitted to prison, for no man can apprehend or arrest it." It-
cannot be outlawed; *^ neither is it capable of suffering a
traitor's or felon's punishment, for it is not liable to corporal
penalties, nor to attarnder, forfeiture or corruption of blood.
It cannot be executor or administrator, or perform any per-
sonal duties, for it cannot take the oath of oflSce." " Neither
can a corporation be excommunicated, for it has no soul."
The days of Lord Coke and Sir William Blackstone have
passed away. Had they lived in the closing days of the nine-
teenth century they would have undoubtedly seen something
besides their imaginary soulless concerns in the gigantic cor-
porations of this age. The venerable absurdity on which
those views were founded has been superseded by an enlight-
ened modern doctrine. A corporation is now held liable for
an injury done by one of its employees or servants in the
same manner and to the same extent as natural persons are
liable under like circumstances.'
§ 18. All obsolete doctrine. — The old doctrine was that a
corporation was not liable in an action for a malicious prose-
cution because, as it was said, malice being the gist of the
action, could not be imputed to a mere legal entity, which
having no mind could have no motive, and therefore no mal-
57 MisB., 760 (1880); Iron Mountain v. AI&, etc., R'y Go.». 74 A1&, 85
Bank ▼. Mercantile Bank, 4 Mo. (1883).
App., 505 (1877); Walker v. S. E. i Angell & Amee on Ck>rporations,
E'y, L. R., 5 C. P., 640 ( ); Ed- §§ 886, 887; Taylor on Corporations,
wards v. Midland Railway, 6 Q. B. gg 848, 844; Potter on Ck)rporations,
D., 387 ( ); Phil., W. & B. R'd ▼. §§ 114, 115; Boone on CJorporatipns,
Quigley, 21 How., 202 (1858); Whit- §§ 78, 255, 256; Morawetz on Gorpo-
field ▼. 8. E. R'y, E., B. & E., 115; rations, §§ 725-734; Field on Corpo-
Mitchell V. Jenkins, 5 B. & Ad., 588; rations, g 850; Wheeler & W. Mfg.
2 Nev. & Mann., 801; Stewart v. Go. v. Boyce, 86 Kan., 850 (1887);
Sonnebome, 98 U. S., 187 (1878); Jordan v. Ala,, etc., R*y Co., 74 Ala.,
Ripley ▼. McBarron, 125 Masa, 272 85 (1888); Reed ▼. Home Savings
(1878); Wheeler & W. Mfg. Ck>. ▼. Bank, 180 Mass., 448 (1879); Paster
Boyce, 86 Kan., 850 (1887); Jordan ▼. Howe Mach. Co., 51 Md., 290
(1878).
PARTIES. 38^
ice, and this narrow view has prevailed to some extent in the-
United States; at least two cases are to be found in the books-
where it appears to have been followed.* But a steady pro-
cess of judicial evolution has led to the establishment of the-
just doctrine of the civil responsibility of corporations for
the acts, of the sentient persons who represent them, and
through whom they act, and of the liability for the acts of
its agents, under the conditions that attach to natural per-
sons.*
Applications of the law. —
I
(1) A savings bank liable for malicious prosecution.
Samuel G. Reed brought an action for malicious prosecution against the-
Home Savings Bank. The bank insisted that the action would not lie-
against a corporation, especially a savings bank. Lord, J. : *' It is too late-
to discuss the question, once much debated, whether a corporation cai^
commit a trespass, or is liable in an action on the case, or subject generally
to actions of tort as individuals are. The books for a quarter of a century^
show that a very large proportion of actions of this nature, both for non*
feasance and misfeasance, are against corporations. It is contended that
an action for malicious prosecution so differs from other actions that it
Cbunot be maintained against a corporation. But although, in order to^
maintain such an action, both malice and want of probable cause must be-
found, yet proof of probable cause will warrant the jury in inferring
malice." ..." A savings bank in its business transactions with in-
dividuals is subject to the same rules of law as other corporations or indi*
viduals. Its contracts may be impeached for fraud, or may be void for
illegality, as the contracts of other parties are void for illegality, and we-
see no ground upon which we can distinguish its corporate liabilities trota
those of other corporations, and therefore no reason why this action can-
not be maintained against the defendant.'* Reed v. Home Savings Bank,.
180 Mass., 448 (1881). Citing MitcheU v. Jenkins, 5 B. & Ad., 588 ; S. C, 3^'
Nev. & Man., 801; Stewart v. Sonnebom, 98 U. S., 187; Stone v. Crocker^.
24 Pick., 81; Ripley v. McBarron, 125 Mass., 272; National Exchange Co»
▼. Drew, 2 Macq., 108; New Brunswick & Canada Railroad v. Conybeare,.
9 H. L. Cas., 711, 788, 740; Bar wick v. English Joint Stock Bank, L. R., 2r
Ex., 259; Philadelphia, Wilmington & Baltimore Railroad v. Quigley, 2%
1 Owsley ▼. Mont. R. R. Ca, 87 (1858); Vance ▼. ErieR'y Co., 82 N.
Ala., 560; overruled in Jordan v. J. L,, 884 (1867); Capley v. Grover-
Ala., etc., R R. Co., 74 Ala., 85 & B. Mach. Co., 2Woods, 494(1875)^
(1888), and Gillett v. Mo. VaL R. R. N. O. R. R. Ck). v. Bailey, 40 Miss.,
Co., 55 Mo., 815. 895 (1866); Williams ▼. Planters'
2 Phil. R. R. Ca ▼. Quigley, 21 Ins. Ca, 57 Miss., 751(1880); Wheeler
How. (U. S.), 202 (1858); Goodspeed & W.. etc., v. Boyce, 86 Kan., 850-
▼. East, etc., R. R., 22 Conn., 580 (1887).
^84 PABTIE8.
How., 202; Whitefleldv. Southeastern Railroad, E., B. & K, 115; Vance
V. Erie Railroad, 8 Vroom, 884; Copley ▼. Qrover & Baker Co., 2 Woodn,
•494; Gkx>d8peed v. East Haddam Bank, 22 Conn., 580; Carter v. Howe Ma-
chine Co., 51 Md., 200; Wheless v. Second National Bank, 1 Baxter, 469;
Williams v. Planters* Ins. Co., 57 Mass., 759; Iron Mountain Bank v» Mer-
cantile Bank, 4 Mo. App., 505; Walker ▼. Southeastern Railway, L, R., 5
•C. P., 640; Edwards y. Midland Railway, 6 Q. R D., 287.
(2) Corporate liability for a^ts of employees, etc*
In Krulevitz v. Eastern Railroad Company, the first count was for false
imprisonment; the second, for malicious prosecution. At the trial evU
dence was offered for the plaintiff to prove that on July 5, 1884, the plaint-
iff,'who was accustomed to go frequently from Lawrence to Salem, on
business, bought at the first-named place a ticket which read, '* Lawrence
to Salem and return,'* for which he paid $1 ; the price of a single ticket
either way between the two places being sixty-five cents. Upon the day
•on which he bought the ticket he rode over the defendant's road to Salem
from Lawrence, but returned by another route. On July 7th he took
1;he train at Lawrence for Salem. Before starting he had expended all
the money he had, but honestly believed that the ticket which he had
'was good to carry him to Salem, where he expected to collect a sum
of money. He did not intend to evade payment of his fare. When
the conductor, to whom he was personally known, asked him for his ticket,
he offered the ticket above mentioned, but the conductor refused to take
dt, on the ground that it was not good in that direction, and demanding
payment of his fare. The plaintiff then stated his belief that the ticket
^*as good, and told the conductor why he had no money. He also stated
that he expected to get some money in Salem ; that it was necessary for
iiim to get there that morning, and that he would pay the fare on his re-
turn at night, and that the conductor might keep the ticket as security.
Other passengers stated in the hearing of the conductor that he had car-
ried them on return tickets like this one, and no denial was made. The
conductor refused to accept the plaintiff*s offer, and called him opprobrious
names, which he repeated at times until the train reached Salem. In the
meantime officers had been telegraphed for by the conductor, and on the
arrival of the train at Salem the plaintiff was arrested and removed to
the station-house ; the conductor having pointed him out as the person to
be arrested for having evaded his fare. The conductor followed to the
police station, where he signed and swore to a complaint charging the
plaintiff with fraudulently evading his fare. Upon this complaint,
the plaintiff was confined in the police station for twelve hours, when he
procured bail. About two weeks afterwards the complaint against the
plaintiff was tried, and the latter acquitted. The conductor had been in
the habit of taking round-trip tickets in cases like this. He was acting
under the orders and rules of the railroad company in making the arrest,
•complaint and prosecution. Upon the offer of proof, the defendant re-
quested the court to rule that the action could not be maintained, and the
.court so ruled, ordering a verdict for the defendant, and the case was re-
ported for the determination of the full court
PABTIB9. 885
'C. Allen, J, : The defendant contends that the ticket did not entitle the
plaintiff to be carried the second time from Lawrence to Salem, and the
cases cited by him will support this proposition. The plaintiff, indeed, no
longer controverts it, but now insists that he may nevertheless prevail by
proving that the conductor acted without probable cause and maliciously,
and that there was sufficient evidence for the jury on these points, and in
this we agree with him. Ripley v. McBarron, 125 Mass., 272. Want of
probable cause, and malice, on the part of the conductor, if established,
may be imputed to the corporation. Reed v. Home Sav. Bank, 180 Mass.,
445. But the report does not show whether the conductor believed the
plaintiff's story, or whether he was acting in good faith in causing the ar-
rest and making the complaint. His honest and reasonable belief is a nec-
essary element in determining upon the questions of malice and probable
cause, and since this is not found in his favor there must be a new trial.
Oood V. French, 115 Mass., 201 ; Bacon v. Towne, 4 Cush., 217, 239; Krule-
^itz v. Eastern R. Co., 140 Mass., 573; 5 N. E. Rep., 500 (1886); S. C, 148
Mass., 228; 9 N. E. Rep., 613 (1887).
(8) Railroad, liability for false imprisonment — Arresting passenger for nonr
payment of fare,
Marshall brought an action against the Boston & Albany Railroad Com-
pany for an assault, for assault and false imprisonment, and for malicious
prosecution, in different counts. At the trial it appeared that the plaintiff
was a public lecturer, and, having delivered a lecture at Poughkeepeie,
T^ew York, on April 4, 1885, he sent his assistant by night train to Palmer,
Massachusetts, intending himself to go to Palmer on April 6th. The
plaintiff was the owner of a thousand-mile coupon mileage ticket, good to
bearer over defendant's railroad, which book was in the usual form and
<x>ntained on the fii-st page the printed words, ** to be used upon the con-
ditions named in the contract attached to and made a part hereof." and on
the back page was printed the following : '* Contract. The conditions upon
"Which this mileage coupon ticket is sold by the Boston & Albany Railroad
-Company, and purchased and used by the bearer of this ticket, are as fol-
lows : (1) That conductors shall detach, in consecutive order, coupons repre-
senting the distance traveled, except when presented for any distance less
"than three miles; then three coupons shall be detached. (2) That all mile-
age coupons will be void if detached by any person but the conductor.*'
The plaintiff tore out seven pages, containing one hundred and forty cou-
pons, from this book, and gave the balance of the book to his assistant for
his use in going to Palmer. Upon April 6th, plaintiff took a train on de-
fendant's road, intending to go to Palmer, and, when the conductor asked
him for his ticket, he offered him these coupons, which he had torn from
his mileage book, which in amount were more than sufficient to pay his
fare to Palmer, at coupon rates. The conductor asked the plaintiff if he
had the book from which these coupons had been detached, and the plaint-
iff explained to him the circumstances of his sending the book to Palmer
by his assistant, and told him that he could see the book when the train
arrived at Palmer, as his assistant would be at the depot with it. The con-
>ductor declined to accept these coupons for plaintiff's fare, and demanded
26
S86 PABTIBS.
the amoant of the cash to Springfield, which was as far as that odndactor
would go on that train, as he then informed plaintiff. The plaintiff stated^
his belief that the coupons were good, and gave to the conduotor his caid,
showing his name, business, and residence. The conductor told the plaint-
iff that he had no doubt that plaintiff owned the book, but stated that oou*
pons were not good without the book, and declined to accept them. At
several other times and places, before the arrival of the train at Pittsfield,
conversations similar to the above took place between the plaintiff and the-
conductor, the plaintiff offering these coupons for his fare, and the con-
ductor declining to accept them. There was also evidence to show that»
upon the arrival of the train at Pittsfield, the conductor called a policeman
of the town into the car, and after again demanding payment of fare, and
after the plaintiff had again tendered the coupons, and refused to pay fare,
the conductor, who was a railroad police officer, arrested plaintiff, and
placed him in charge of the police officer, who took him to the police sta-
tion and afterwards to the district court, where he made a complaint for
" fraudulently evading the payment of fare by refusing to pay the fare
lawfully established by the Boston & Albany Railroad Ck>rporation.'* The
plaintiff was released on bail, and, at a later day, was tried on the com-
plaint, and discharged.
It appeared from evidence of the defendant that the following among
other rules for the government of conductors had been established by the
defendant corporation, and was in force at the time : *' Coupons detached
by passengers will be refused, and fare collected, unless passengers can
show the book from which coupons were detached, which must agree in
number and form." This rule was not known to the plaintiff. The plaint-
iff, for the purpose of showing his intent and belief that the said coupons
were a proper tender of his fare, offered to prove that he had frequently
seen the conductors on the defendant's railroad accept, without objection,
in payment of fare, similar coupons, which had been detached by passen-
gers or others than such conductors ; but the court excluded the evidence
in this form, and for the specific purpose for which it was offered, but
stated if the plaintiff proposed to prove a custom of the defendant to ac-
cept coupons so tendered, the evidence would be admissible. The plaintiff
asked the court to rule that *' the evasion or attempt to evade the payment
of fare, for which a passenger may be lawfully ejected or removed from a
railroad car, must be a fraudulent evasion, with an intention to defraud
the railroad company ; " but the court declined so to rule, but did rule that
the coupons offered by the plaintiff to the conductor were not a legal tender
of his fare, and, upon the plaintiff's refusal to make any other payment,
the conductor, who was a railroad police officer, might arrest him. The
jury returned a verdict for the defendant, and the plaintiff alleged excep-
tions.
In passing upon the exceptions. Holmes, J., said: '* The ruling requested
by the plaintiff was that * the evasion, or attempt to evade, the payment
of fare, for which a passenger may be lawfully ejected or removed from a
railroad car, must be a fraudulent evasion, with an intent to defraud the
railroad company.' There is no question, and the plaintiff does not dispute,
that this ruling, if taken literally, was rightfully refused. Beckwith ▼..
PASTIES. 387
Bailroad Go.» 148 Mass., 68; 8 N. E. Kep., 875. We are asked to construe
the words ' ejected or removed/ in connection with the facts and with
instructions given and not excepted to as meaning ' removed by arrest,'
or in other words * arrested.' We think, however, that the suggestion
does too great violence to the language used, and that we should not be
warranted in assuming that the judge to whom the request was addressed
understood it as the plaintiff would have us understand it.
'* The plaintiff, for the purpose of showing his intent and belief that the
said coupons were a proper tender of his fare, offered to prove that he had
frequently seen the conductors of the defendant railroad company accept,
without objection, in payment of fare, similar coupons, which had been
detached from similar mileage books by passengers or others than such
conductors; but the court excluded the evidence in this form and for the
specific purpose for which it was offered, but stated, if the plaintiff pro-
posed to prove a custom of the defendant to accept coupons so tendered,
the evidence woul^ be admissible ; and the plaintiff excepted. It would
seem that the plaintiff could not have been injured by the exclusion of the
evidence as stated ; for, upon the rulings of the court under which this
case was tried without objection by the plaintiff, his belief or intent was
only material to the count for malicious prosecution, and the verdict for
the defendant on that count was based on the finding that it acted under
the advice of counsel. But the evidence was properly excluded. If the
plaintiff's actual belief was material, and was really controverted, he could
not, as of right, strengthen his direct testimony as to what his belief was
by swearing to other facts ^hioh would make it likely that he believed aa
he said. Delano v. Smith Charities, 188 Mass., 68. This seems to have
been the purpose for which the evidence was offered. If it had been of-
fered to show that the defendant company had justified the plaintiff's con-
duct by its own, the court was ready to admit it subject to proper limita-
tions. Exceptions overruled." Marshall v. Boston & A. R R., 145 Mass.,
164; 18 N. E. Rep., 884 (1887).
§ 1 9. Municipal corporations. — A manicipal corporation is
liable for a tortious act, as a trespass, committed by an agent
pursuant to its directions, in relation to matters within the
scope of the objects of its incorporation ; but not for any un-
authorized acts .of its officers though done colore officii. It
cannot be made liable for an act of its agent by ratification,
where the act complained of was of such a nature that the
corporation did not possess the power to authorize the doing
of it by the agent.*
Municipal corporations are liable to an action for injuries
sustained in consequence of the misfeasance of their officers
or agents only in cases where the duty to be performed is
1 Barbour on Parties, 214; Brown v. City of Utica, 2 Barb.(N. Y.), 104
(1848).
388 PABTIBS.
1
absolute, and due from the corporation; or where they were
acting for the purposes of private advantage or emolument,
and are to be regarded as a private company.' Municipal
corporations are not liable for a misfeasance committed by
independent corporate officers.
§ 20. The proseeation of criminal oifenders not ultra Tires.
In an action for malicious prosecution against a railroad com-
pany, where it was contended that the power of instituting a
criminal proceeding was not conferred upon it by law, it was
said : *' Conceding that a corporation cannot be bound unless
for an act done in pursuance of some object embraced by its
charter, or conferred by law, it is not always, or necessarily,
outside of the objects and privileges of a railroad company to
prosecute criminal offenders. It is the object of such com-
panies to acquire and protect their property by every lawful
means. It is a lawful and commendable means to protect it
by the institution of criminal proceedings against those in-
fringing such rights, etc. . . . No law or public policy
restrains them in this respect, and to hold that they cannot
be held to a proper accountability woifld endow them with an
invidious privilege." Discussing in the same connection the
character of proof requisite in such a case to show that a
prosecution was instituted and conducted by its authority, it
was further said in the same case: ^^ We do not consider it
necessary to produce a resolution of a board of directors."
*' In the absence of opposing proof," it was said that " its legal
advisers, acting in conjunction with such of its agents and
servants as have knowledge of the facts, will be authorized to
institute the proper proceedmgs." *
§ 21. Husband and wife — The rule at common law. —
(1) As plaintiffs: At common law, for a malicious prosecution
or false imprisonment;' or. for any personal wrong or violence
done to the wife, for which an action would survive to her,
the wife ought to be joined.* But where the injury is not of
^Hickokv. TrtisteeB»etc., 15Barb., Robinson, 1 Keb., 440; Horton ▼.
427 (1853); Barbour on Parties, 211. Byles, 1 Sid., 887.
SRicord v. Railroad Co., 16 Nev., < Barbour on Parties, 193; Broom
176; Gulf, a & S. F. R'y Co. v. on Par., 236; Newton v. Hatter, 9
James, 73 Tez.» 12; 10 So. Rep., 744 Ld. Ray., 1208; RusseU v. Come, id.,
(1889). 1031; 3 Bouv. Inst., § 2757; Beach
*8 Black, Com., 140; Hardy ▼• t. Ramsey, 2 HUl (N. T.), 300(1842).
PABTIB8. 889
that kind, and no action would survive to the wife, the only
cause being a special damage to the husband, the wife cannot
be joined.* Therefore they cannot join in an action for the
battery of both ; the battery of the husband being a distinct
cause of action.^
For an assault on the wife, as well as for compensation for
the loss of the wife's society and services, occasioned thereby,
or in actions to recover damages from her false imprisonment
or malicious prosecution, the husband alone must sue ; but in
the declaration he may also include a claim for a personal
tort to himself.' So that, although an action could not be
maintained for the battery of husband and wife by both
jointly, yet the husband may sue alone for the assault on him-
self, and for the consequential damage resulting from the per-
sonal wrong to his wife.^ And when the husband receives a
separate loss or damage, as if, in consequence of the battery^
he has been deprived of his wife's society, or has been put to
expense, he may bring a separate action in his own name.*
The declaration may either seek compensation for the im-
mediate and direct injury to the wife, in respect of which a
right of action would survive to her, or for the consequential
and special damage to the husband. In the former case, both
must join; in the latter, the husband must sue alone.® And
when the injury to the wife deprives the husband, for any
time, of her company or assistance, or if she be maliciously
prosecuted or imprisoned, and the husband is put to expense
on account of the same, he may bring a separate action in his
own name for these consequential injuries, which are, indeed^
wrongs done to himself alone; and for this reason he may, in
the same action, proceed for injury committed upon himself.
Whenever, on account of an injury to the wife, he has sus-
tained special damages, he may bring a separate action.^
1 4 B. & Ad., 523; Ck>Ieman v. Har- Mod., 343; Grey v. -Livesey, 8 Mod.,
court, 1 Lev.. 140. 342.
' »2 Brev., 170. *McKinney v. Western Stage Co.^
s Barbour on Parties, 180; Broom 4 Iowa. 420 (1857).
on Parties, 231. <> Barbour on Parties, 170; Saville
4 Barbour on Parties, 2d ed., 284; v. Sweeny, 4B. & Ad., 623; 3 Black,
Broom on Parties, 232; Ld. Ray- Com., 140.
niond, 208; Bead y. Marshall, 8 ? Barbour on Parties, 179; 8 Bouv.
Inst., § 2757.
390
(2) Am defendanU: Oovertare does not change the liabili^
ties of the husband in respect to his ow^n torts ; he being tiie
person to be sued for such torts, whether oommitted before or
during the coverture. It is otherwise with the wife. After
her marriage she has no personal property with which to pay
damages that may be recovered. For her torts conunitted
before marriage the action must be against the husband and
wife jointly.^ So the wife must be joined in an action for
a tort committed by her during coverture;' as, for example,
a libel or slander uttered by her.' But for words spoken by
husband and wife, there must be separate actions — the one
against husband and wife, the other against the husband only;
the wife not being answerable for her husband's tort.^ It is
proper to join both husband and wife in an action for a tort
committed by the wife, although the injury was committed
by the sole act of the wife and without the husband's knowl*
edge.*
§ 22. Under statates. — The rule of the common law has
been changed in many of the states of our Union. In New
York, by the act of March, 1860, concerning the rights and
liabilities of husband and wife, it is enacted that any married
woman may, while married, sue and be sued in all matters
having relation to her property which may be her sole and
separate property, or which may come to her by descent, de-
vise, bequest or the gift of any person except her husband, in
the same manner as if she were sole. And any married womaa
may bring and maintain an action in her own name for dam-
ages, against any person or body corporate, for any injury to
her person or character, the same as if she were sole; and the
money received upon the settlement of any such action, or re-
covered upon a judgment, shall be her sole and separate prop-
ertv.® Similar enactments exist in other states, to which of
1 Bac Ab., Baron & Feme (L); 6 Smith, 90 (1853); Wagener v. BiU, 19
Bin., 43; Com. DiRm Bar. & Feme Barb., 321 (1855>
(Y); 2 Roper, Hu8b. & Wife, 127; Co. > Head v. Briscoe, 5 C. & P., 484.
Litt., 8516. 4 Swithin v. Vincent, 2 Wils., 227 ;
2 Barbour on Parties, 899; Broom Bac. Ab., Ttaron & Feme (L).
on Par., 279: Com. Dig., Baron & > Matthews v. Fiestel, 2 K D.
Feme(Y); Baa Ab., Baron & Feme Smith, 90 (1853).
(L); Matthews ▼. Fiestel, 2 E. D. ^LawsofN. Y., 1860, 158, §7.
PABTIES. 391
^course reference must be had to ascertain the true state of the
law.
§ 23. Infants. — (1) As plaintiffs: At common law an in-
fant is required to sue by his next friend or prochein ami}
But an objection on the ground that the plaintiff is an infant
can only be made by a proper plea in abatement Proof of
such matter cannot be made under a plea of the general issue.'
§ 24. Infants. — (2) As defendants: Actions against in-
fants, in the absence of statutory regulations to the contrary,
may be commenced in the same manner as if they were adults,
but they must appear on the record by a guardian ad litem
and not in person or by an attorney.' A judgment should not
be rendered against an infant except after his appearance in
the action by a guardian, and judgment against an infant by
default is void or voidable where there is nothing in the rec-
ord showing an acceptance by a g\iSLv6\9kTL ad litem of his trust
•or notice to him thereof; and where a judgment is entered
against an infant who appears in court only by an attorney,
it will be set aside on his motion upon his becoming of age.*
Infants are liable, in actions arising ex delicto^ whether
founded on positive wrongs, as trespass or assault, or con-
•Btructive torts or frauds.*
Application of the law. —
Liability of infants in aeticnsfor maJicioua prosecution.
One Bumham brought an action against Herbert Seaverna, for the al-
leged malicious prosecution of a civU action by Seaverns, who was a minor,
A The term procTietn ami is taken ^Stupp ▼• Helmes, 48 Mo.» 89
from the Norman French, next (1871); Keeler v. Fa88ett,21 Vt.,6d0;
friend, one who, without being ap- 52 Am. Dea, 71 (1849); Hanna v.
pointed guardian, sues in the name Spotts, 5 B. Hon. (KyOt 862; 48 Am.
•of an infant for the recovery of the Dec, 188 (1845) ; Austin t. Charles-
infant's rights. 2 Bouvier's Law town, etc., 8 Met (Mass.), 196; 41
Die, 469; Edwards on Parties, 182, Am. Dec, 497(1844); PoweU ▼. Oott,
204. 18 Mc, 468; 58 Am. Dec, 158 (1850) ;
s MUee V. Eaigler, 10 Terg. (Tenn.)t ^^^^ on Infancy, 89.
10 ; — Am. Dec, 592 (1886) ; Drago v. * Barbour on Parties, 220 ; 2 Kent's
Moss, 1 Spear*s L. (8. C), 212 ; — Am. Com., 241 ; Broom on Par., 280 ; Co.
Dec, 425 (1841); Field on Infants, Litt, 180&, n. 4; Johnson v. Pye, 1
88. Lev., 169; Bullock v. Babcock, 3
' Strofer v. Gates, 2 B. Mon. (Ky.X Wend., 891 (1829) ; Conklm v. Thomp-
458; 88 Am. Dec, 114 (1842); Field son, 29 Barb., 218 (1859); Jennings
<on Infancy, 88. v. Rundall, 8 T. R., 887; Noy, 129.
392 PARTIES.
by William Seaver, his next friend. The evidence tended to ehow that the
defendant was a minor, and that the action complained of was brought in
his name without his knowledge by Seaver, who was his uncle, and that he
took no part in conducting it. Seaver paid all costs and expenses. On
cross-examination the defendant testified that he first knew of the action
six weeks after it was begun, and knew of its pendency from that time
until final judgment was entered. That judgment was finally entered for
this plaintiff because he did not wish to have the suit prosecuted further
after the death of his sister ; otherwise he never interfered to prevent its
prosecution, except about six months after it was begun he had an inter-
view with the attorney employed to conduct it. The jury found for the
defendant. The finding was sustained. Colt, J. : " Under the finding of
the jury the alleged malicious suit was commenced entirely without the
knowledge or authority of the defendant, who was during its pendency an*
infant. It was prosecuted by the prochein amt, in theory at least receiving
his appointment from the court, and having the sole control of the case so
long as he is allowed by the court to retain the place. The defendant had
no power to prosecute or discontinue the suit during his minority. If the
infant expressly assented to the suit after he had knowledge of it, yet he
cannot become a trespasser by such assent, being liable only for his own
personal acts.'* Burn ham v. Seaverns, 101 Mass., 860 (1869). Citing Bac
Ab., Infancy & Age, K 2; Guild t. Cranston, 8 Cush., 606; 1 Chit. Plead.
(6th ed.), 76. Distinguished from Sterling v. Adams, 8 Day, 411.
§ 25. Master and serrant. — Where an injury is sustained
in consequence of a servant's misconduct, negligence or de-
fault while acting under the authority delegated to him, in
bis master's business, an action lies against either the master
or the servant.^
For injuries occasioned by the tortious acts of his servant,
in the course of his employment, although in disobedience of
the master's orders, the master is responsible,' if the act was
not done in wilful disregard of such orders.'
The liability of the master, for the act of his servant, done-
b}'^ his express direction, does not rest upon the relationship of
master and servant, but upon the fact that the act was done
by the master's express direction.*
An express authority from the master need not be shown,
in all cases, to render him liable for the tortious act of his
J Barbour on Parties. 220; Broom «Phil. & R R. R. v. Derby, 14
on Parties, 268; 1 Black. Com., 431 ; How., 468 (1852).
Montfort v. Hughee, 8 E. D. Smith. «Southwick v. Estes, 7 Cush., 885^
591 (1854); Harlow v. Humiston, 6 (1851).
Cow,, 189(1826). * Thames S. Co. v. Housatonic B».
Co., 24 Conn., 40 (1855).
PASTIES. S93
servant, provided the act be subsequently ratified by the mas-
ter.*
§ 26« Liability of partners — In an action against two^
irliat concurrence will render both liable. — One person can-
not be made liable in damages because he knows that another
person is about to commit an unlawful act, even though be
fails to protest against it, and therefore, in the ordinary use of
language, may be said to have consented to it. So, when one
of two partners was about to commence a prosecution against
a party, upon a charge of having stolen the money of the
firm, the mere " knowledge and consent " of the other partner
that he should have the person accused arrested would not
render the partner so knowing and consenting liable to an
action for malicious prosecution at the suit of the person ar-
rested. Something further would be necessary in order to
make him liable. It would be necessary that his "consent"
should be of so active and positive a character as to amount
to advice and co-operation. If he advised the arrest, although
he may not have directly caused it, he would be equally re-
sponsible with the other partner who was the active pros-
ecutor. But his mere "knowledge and consent" would not
render him liable.' Although, as a general rule, one partner
cannot involve another in a joint liability for a trespass com-
mitted by the former, yet an exception exists where the tres-
pass is in the nature of a taking which is for the benefit of the
partnership; more especially if the other partner afterwards
agrees and consents to the act.'
§ 27. Personal representatives. — If one of seVeral persons
who are jointly interested dies, the remedy for an injury to
the joint interest survives to the others, and the personal rep-
resMitatives of the deceased are not to be joined ; the rule
being that the remedy survives but not the right.* When
the nght of action is joint and several, or several only, in case
of death the personal representatives of the deceased may sue,
1 Broom on Parties, 260; Barbour 833 (1885); Barbour on Parties, 228;
on Parties, 225. Broom on Par., 249, 250; Petrie ▼.
3 Gilbert v. Emmons, 42 111., 148 Lamont, 1 Car. & March., 06; Beck-
(186av, Rosenkranz t. Baker, 115 111., nell v. Dosion, 88 Mass., 480.
882(1885). < Broom on Parties, 212; Bex ▼.
'Bosenkranz v. Baker, 115 lU., Collector of Customs, 2 M. & S., 225,
394 Fjunut.
•
provided the rale actio personalis maritur eum persona does
not apply.^ For a wrong altogether personal, aa where one
has been injured by false imprisonment or malicions prosecu-
tion, no action can be supported, at common law, by his
personal representatives, after his death.' In such cases the
maxim actio personalis moritur cum persona applies.'
§ 28. Principal and agent. — A principal is liable to third
persons for the torts of his agent committed in the course of
his employment, although the principal did not authorize, or
justify, or participate in, or indeed know of such misconduct,
or even if he forbade or disproved of them ; the rule respondeat
svperior being applicable in these oases.*
If the agent commit a tortious act under the direction or
with the assent of his principal, either is liable, at the suit of
the party injured; for the authority of the principal is no
justification of the wrongful act of the agent'
An express authority from the principal need not be shown,
in order to render him liable for the torts of his agent; pro*
vided the act is subsequently ratified by the principal.'
§ 29. Misnomer — The use of wrong names. — Misnomer of
one of the parties must be taken advantage of by a plea in
abatement. If a corporation or natural person, sued by a
wrong name, appears without objection, the misnomer is
waived.^ It is a sufficient answer to a plea of misnomer co
Bay that the defendant is as well known by the one name as
.the other. The fact that a person is commonly known by
the name by which he was sued and arrested in a civil pro*
oeeding is distinguished from those cases in which one person
has been arrested upon a writ against another person of a
different name.'
ilbid. ; Broom's Leg. Max., 400; ' Barbour on Parties, 380.
Barbour on Parties, 17G. ' Virginia & M. 8. N. Ckx ▼. United
>8 Bouvier's Inst., § 2751. Stotes, Taney, 418 (1840).
> Broom's Leg. Max., 702; Barbour * O'Shaughnessy ▼. Baxter, 131
on Parties, 176. Mass., 616 (1877); Ck>le ▼. Hindson,
« Barbour on Parties, 280; 2 Bou- 6 T. B., 284; Finch ▼. Oxsken, 5
Tier's Inst., 88; Story on Agency, Tyrwh., 774, 785; 8 DowL, 678, 686;
§ 452; Paley on Agency, 294, 801. Griswold v. Sedgwick, 1 Wend., 126,
« Barbour on Parties, 280 ; Broom 182 (1828) ; Langmaid ▼. Pieffer, 7
on Parties, 258 ; Sands ▼. Child, 8 Gray, 878 (1856).
Lev., 852; Jones v. Hart, 1 Ld. Ray.,
788; Britton v. Cole, 1 Salk., 408.
CHAPTER XI.
PLEADING.
S 1. Pleading in action for malicious prosecution and false imprisonment.
3. Pleading under codes.
8. Complaint in an action for malicious prosecution,
4. Precedents.
6. Modifications of the common-law system*
6. Statement of the claim defined.
7. The declaration at common law — Its form and particular parts.
8. The subject illustrated.
9. Complaint for the abuse of legal process.
10. A precedent.
11. Special damages.
Id. The law stated by Chitty.
lUustrations of the rule.
(1) Special damages must be specially pleaded — Loss of boarders.
(2) Bad condition of prison and food.
(8) Insufficient statement.
18. Allegation of special damages — Precedent.
14. Defendant's pleas, answers, etc.
15. PlaintifiTs pleadings in actions for false imprisonment.
16. Seasons for the rule.
17. Pleas of justification, etc.
^8. Opening and close under pleas of justification.
19. Former recovery — Estoppel.
20. Joint defendants — Pleading separately ^ A question of policy*
21. Joint and several pleas.
22. Precedents of pleas — False imprisonmenti
(1) The general denial.
(2) Statute of limitations.
28. Pleas of justification.
(1) Under final process. I
(2) On suspicion of felony.
(8) Under mesne process.
24. Other pleas and answers.
(1) Molliter mantu — To preserve the peace.
(2) The same — Assault on a third person.
(8) Correction of an apprentice.
(4) Satisfaction.
(5) The same by joint trespasser.
(6) Former judgment recovered*
(7) Release.
<8) Tender of amends.
396 PLBADINQ.
g 25. The plaintiff's course after the defendant has answered.
26. Precedents of replications.
27. Concluding remarks.
§ !• The pleadings In actions for malielous prosecutioir
and false imprisonment. — It is common in the course of
every system of judicature to require, on behalf of each of the
litigating parties, before proceeding with the cause, a statement
of his case. In the forensic language of the courts these
statements are called '^ the pleadings."
Tlie term defined: A pleading is the statement in a logical
and legal form of the facts which constitute the plaintiff's
cause of action. or the defendant's ground of defense.*
Regular pleadings: (1) The declaration or complaint.
(2) The pleas or answer. (3) The replication.
§ 2, Pleading under codes. — It would appear from an ex-
amination of many of the earlier cases in the state of New
York that the contest was, in many instances, merely a con-
test of pleaders. The real matters in litigation appear to have
become insignificant in comparison to the manner of stating
them in the pleadings. As a result of this condition of things
the legislature of that state attempted to sweep away the
whole system of common-law pleading by a statutory enact-
la
ment providing that " All the forms of pleading heretofore
existing are abolished, and hereafter the forms of pleading in
civil actions in courts of record, and the rules by which the
sufficiency of the pleadings is to be determined, are those pre-
scribed by this act."^ The act commonly called the "code
of procedure" provided that the first pleading on the part of
the plaintiff, "the complaint," should contain — "1. The title
of the cause, specifying the name of the court in which the
action is brought, the name of the county in which the plaint-
iff desires the trial to be had, and the names of the parties ta
the action, plaintiff and defendant. 2. A plain and concise
statement of the facts constituting a cause of action, without
unnecessary repetition. 3. A demand of the relief to which
the plaintiff supposes himself entitled. If the recovery of
money be demanded, the amount thereof shall bo stated."
The pleading on tlie part of the defendant. The answer must
1 Bouvier's Law Dictionary, 848. ' N. Y. Code of Procedure.
PLBADING. 897
contain — "1. A general or specific denial of each material
allegation of the complaint controverted by the defendant, or
of any knowledge or information thereof suflBcient to form a
belief. 2. A statement of any new matter constituting a de-
fense or counter-claim, in ordinary and concise language,
without repetition."
§ 3. Complaint In an action for malicious prosecntion. —
To support this action it must be alleged (1) that a prosecu-
tion was commenced against the plaintiff; (2) that it was insti-
tuted or instigated by the defendant; (3) that it was malicious;
(4) that it was without probable cause ; and (5) that it has been
legally and finally terminated in the plaintiff's favor.^
§ 4. Precedents. —
(1) COICFLAINT FOB MALICIOUS PbOSEOXTTION.
(1) Title, etc.
The plaintiff complains of the defendant, and aHeges:
That on or about the day of , A. D. , the defendant above
named appeared before , a justice of the peace of the town of ,
in the county of , at his office in said town, and then and there made
a complaint against the plaintiff herein, charging the plaintiff with having
on the day of , A. D. , at , in the county and state afore-
said, committed the crime of petit larceny by stealing from the defendant's
place of business at , aforesaid, a certain harness, the property of the
defendant, of the value of $5.
That upon said complaint the justice issued his warrant for the arrest of
this plaintiff, and that upon said warrant this plaintiff was arrested by a
•constable of said town and taken before said magistrate, and was then
arraigned and held to t>ail for his further appearance before said magis-
trate on the day of , A. D. .
That on the said day of , A. D. , the plaintiff appeared be-
fore the said magistrate, then holding a court of special sessions, and was
then and there by said court tried for the offense of petit larceny charged
in said complaint. That the defendant herein attended said trial with
counsel and conducted the prosecution of this plaintiff thereon, and that
o^ said trial this plaintiff was found not guilty of the offense charged, and
said criminal proceeding was then and there finally terminated by the ac-
quittal and discbarge of the plaintiff herein. That the said charge of lar-
ceny was wholly false and unfounded ; that the defendant herein made
1 Wheeler v. Nesbitt, 65 U. S. (24 wal v. Care, 18 W. Va., 1 (1881); Bay-
How.), 544 (1860); Miller v. Miligan, lies* Code of Pleading and Forms,
48 Barb. (N. Y.). 80 (1866); Farnum 155 (1891).
V. Freley, 66 N. Y., 451 (1874); Vin-
808
PLBADINa.
said charge and caused the arrest, imprisonment and prosecution of the
plaintiff therefor maliciously and without probable cause.
That by reason of said malicious and unfounded criminal prosecution by
the defendant the plaintiff has suffered great damage, and has been caused
great mental distress, loss of time, physical discomfort and expense.
Wherefore the plaintiff demands judgment against the defendant herein
for dollars damages and his costs in this action*
Plaintijps Attorney A
(2) Petition m an AcmoN fob MAuaons Prosecution by a Pebsok
Who Has Been Pbosecxtted fob Labceny — A Kansas Form.'
-, Plaintiff,
vs.
, Defendant
.1
Plaintiff states that the defendant, on the day of
A. D. 18—^
in said county, falsely and maliciously, and without any reasonable or
probable cause, made an affidavit charging plaintiff with the crime of lar-
ceny in stealing a certain watch, which was the property of the defendant,
and on the same day caused plaintiff to be arrested and imprisoned on said
charge of larceny. That afterwards, on the day of , A, D. 18 — ,
plaintiff was brought before one , a justice of the peace in and
for the city of , in said county, and put upon his trial on the said
charge of larceny, which said justice, after hearing the evidence, dia-
charged plaintiff, and the said prosecution is now fully ended.
That by reason of the said arrest and prosecution, plaintiff has been in-
jured in reputation, and has lost days* time, and has been obliged ta
expend dollars in and about his defense to said prosecution, and has
otherwise been greatly injured, to his damage dollars, for which he
asks judgment. ,
Attorney for Plaintiff.
§ 5. Modifications of the common-law system. — The oom-
mon-Iaw system has been abolished in many of the states and
modified in others. In England, the place of its birth, it has
been completely abolished.*
The principles upon which the system was founded, how-
ever, still remain in full force, and are of every-day applica-
1 Baylies* Code of Pleading and
Forms, 429 (1891).
^ Green & Dassler's Practice, etc.,
210.
3 The New York method is fol-
lowed subdtantially in California,
Missouri, Ohio, Kentucky, Indiana,
Wisconsin, Iowa, Minnesota, Kansas,
Nebraska, Nevada, Oregon, Missis-
sippi, North Carolina, South Caro-
lina, Arkansas, Colorado, Connecti-
cut, Dakota, Wyoming, Arizona,
Washington, Utah, Montana and
Idaho. In the other states the com-
mon-law system seems to prevail.
But it is believed that a declaration
under the common law, well drawn^
would still be held good under the-
codes of many of the states.
PLEADINOw d3&
tion in the courts of law throughout the United States. It is
now our purpose to illustrate these principles so far as they
apply to the subject of pleadings in actions for malicious
prosecution and false imprisonment.
^ § 6. Statement of the claim defined. — The complaint, the
statement of the claim, or, as it was formerly and still is in
many jurisdictions called, the declaration, is a specification in
methodical and le^al form of the circumstances which consti-
tute the plaintiff's cause of action, which necessarily consists
of the statement of a legal right, or in other words a right
recognized in a court of law, and of an injury to such right
remedial at law by an action.^
The subject may be well illustrated by an analysis of a dec-
laration for malicious prosecution at common law, and an
examination of its form and particular parts or essential aver-
ments.
§ 7. The declaration at common law — Its form and par-
ticular parts* — At common law the declaration may be
divided into the following parts:
JPirst — The title.
Second — Designation of the parties litigant.
Third — Inducement of good character.
Fourth — Statement of the institution of the prosecution
alleged to be malicious and without probable cause.
Fifth —Statement of the discharge of the plaintiff and end
of the prosecution.
Sixth — Statement of the second count.
Seventh — Statement of the claim for damages.
Eighth — The ad damnum.
Ninth — The conclusion.
§ 8. The subject illustrated — A declaration at common
law in an action for maliciously charging the plaintiff with
felony before a justice of the peace and causing him to be
arrested and imprisoned^ etc.^ until discharged by the jus-
tice.— The declaration which is the subject for dissection,
with the exception of the title, is taken from Chitty's Plead-
ings, volume 11, page 606.'
U Chitty'8 Pleadings, 13th Am. Wentw., Index, xv to xxi; Morg.,
«d., 240. 410, 413, 415; 2 Rich. C. P.. 158;
'See the various forms in 8 Plead. A., 180, aad the approved one
400 PLSADINa.
FiBST.— The Titlb— Thb Court.
State of , ) ^
County. S ^
In the -^— Court of ^— County,
Term, A, D. 18-%
Second.— Dbsionation of the Pasties Litioant.
, the plaintiff in this suit, by , his attorney, complains
of , the defendant in this suit, summoned, etc, of a plea of tres-
pass on the case.^
Third. — Inducement of Good Character,
For that whereas the said plaintiff now is a good, true, honest, just and
faithful subject of this kingdom, and as such hath always behaved and
conducted himself, and hath not ever been guilty, or until the time of the
committing of the' several grievances by the said defendant as hereinafter
mentioned been suspected to have been guilty, of felony or of any other
such crime, by means whereof the said plaintiff, before the committing of
Dhe said several grievances by the said defendant as hereinafter mentioned,
had deservedly obtained and acquired the good opinion and credit of all his
neighbors, and other good and worthy subjects of this realm, to wit, at,
etc, {venue).^
in 1 D. & R., 97; 2 Chit. Rep., 804; ft is instituted, or by the proceed-
Bac. Ab., Action on the Case, H. ; ings having been otherwise legally
Com. Dig., 1 Saund., 228 to 280, in determined, before the party ag^
notes ; 8 Bla. Com., by Chitty, 826, grieved can commence his action for
from which it appears that, to support the injury sustained. 2 T. R, 225; 1
an action for a criminal prosecution, Saund., 228; Bui. N. P., 11 ; l Esp.,
four circumstances must occur: 1st. 79.
Falsehood in the original charge, and ^ The essential parts of the decla-
which must have terminated in ration relating to the title of the
favor of the plaintiff. 2d. The want court, the venue and designation of
of probable cause for instituting the parties litigant remain the same
such proceedings. 8 Dow, Rep., 160. as at common law, and are essential
8d. Malice in the prosecutor, which to every well-drawn complaint,
must be proved. 9 East, 861 ; 6 Taunt. , ^ This inducement was usually in*
187; 1 Marsh., 12. 4th. Damages serted by the common- law pleaders
to the accused party, which may be but it was not traversable, and if
either to his person by imprison- omitted the declaration would be
ment — to his reputation by scan- sufficient. The inducement is simi-
dal, — or to his property by expense, lar to that in an action for a libel, or
Oilb. Cases Law & Evid., 185, 202; for words. In general, a criminal
12 Mod., 208; 1 T. R., 493 to 551. prosecution is injurious to the char-
These four circumstances must be acter of the plaintiff, in which case
correctly stated in the declaration, this inducement of the plaintiff's
The falsehood of the charge must good character is proper, but if the
have been substantiated by a verdict, proceeding were not prejudicial to
or the decision of the court in which the plaintiff's character, the induce*
PLEADING. 401
Fourth.— STATEaiENT op the Institution, etc., op the Prosecution
Alleged to be Malicious and Without Probable Cause.
Yet the said defendant, well knowing the premises, but contriving and
tnaliciouslj intending to injure the paid plaintiff in his aforesaid good name,
fame and credit, and to bring him into public scandal, infamy and disgrace,
and to cause the said plaintiff to be imprisoned for a long space of time,
and thereby to impoverish, oppress and wholly ruin him, heretofore,* to
wit, on, etc. (date of ivarrant or about t'O, at, etc. {venue), went and ap-
peared before one , then and there being one of the justices of our
lord the now king, assigned to keep the peace of our said lord the king, in and
for the county of , and also to hear and determine divers felonies, tres-
passes and other misdemeanors committed in the said county, and then and
there, before the said , so being such justice as aforesaid, to wit, at,
etc. (venue), aforesaid, falsely and maliciously, and without any reasonable
or probable cause whatsoever, charged the said plaintiff with having [felo-
niously stolen a certain gold watch of the said * defendant], and upon such
charge the said defendant falsely and maliciously, and without any reason-
able or probable cause whatsoever, caused and procured the said ,
so being such justice as aforesaid, to make and grant his certain warrant,
tinder his hand and seal, for the apprehending and taking of the said plaint-
iff, and for bringing the said plaintiff before him, the said , or
some other of his majesty's justices of the peace in and for the said county
of , to be dealt with according to law of the said supposed offense.
And the said defendant, under and by virtue of the said warrant, after-
wards, to wit, on the day and year aforesaid, to wit, at, etc. {venue), afore-
said, wrongfully and unjustly, and without any reasonable cause whatso-
ever, ^ caused and procured the said plaintiff to be arrested by his body,
ment should be omitted, and the the superior court on appeal the
declaration commence with the plaintiff was acquitted ; and in an-
Btatement that the defendant, con- other count alleged that the defend-
tri ving to cause the plaintiff to be im- ant made another false and malicious
prisoned, eta It is still retained in complaint against the plaintiff to the
some later American works on plead- trial justice, and testified falsely at
ing. Puterbaugh*s Common Law, the trial thereof before the justice,
446; 2 Chitty's Pleading, 18th Am. and '*upon that evidence" the jus-
«d., 620, 634; Gilb. Cases, L. &E., tice'.found the plaintiff guilty, but
185; 12 Mod., 208; Styl., 118. in the superior court on appeal the
1 The complaint must allege affirm' complaint was dismissed without
atively a want of probable cause, trial. It was held, on demurrer, that
In an action for malicious prosecu- both counts were bad, as failing to
tion the declaration alleged in one allege distinctly want of probable
count that the defendant made a causef or the respective prosecutions,
false and malicious complaint against Dennehay v.'Woodsum, 100 Mass.,
the plaintiff, a trial justice, and tes- 195 (1868). Citing Whitney v. Peck-
tified falsely at the trial thereof be- ham, 15 Mass., 248; Parker ▼. Hunt-
fore the justice, "and thereupon" ington, 7 Gray, 36; Bizby ▼. Brun-
the justice found the plaintiff guilty, dige, id., 129; Bacon ▼. Towne, 4-
but at the trial of the complaint in Cush., 217, 235; Brown v. Lakeman,
26
403 PLEADINO.
and to be imprisoned and kept and detained in prison for a long spaoe of
time, to wit, for the space of hours then next following, and until the
said defendant afterwards, to wit, on, etc., to wit, at, etc. {venue), aforesaid,
falsely and maliciously, and without any reasonable or probable cause
whatsoever, caused and procured the said plaintiff to be carried and con-
veyed in custody before the said , so being such justice as afore-
said (if the plaintiff was committed for further examination then insert
this averment between brackets [and to be committed by the said justice
for a further examination to a certain gaol or prison of our said lord the
king called , and there, to wit, in the said gaol or prison, the said de^
f endant then and there falsely and maliciously, and without any reasonable
or probable cause whatsoever, caused and procured the said plaintiff to
be imprisoned, and to be kept and detained in prison for a long space of
time, to wit, for the space of , then next following, and until he,
the said defendant, afterwards, to wit, on, etc., falsely and maliciously,
and without any reasonable or probable cause whatsoever, caused and pro-
cured the said plaintiff to be carried and conveyed in custody before one
, then" and there being a certain other justice of our said lord the
king, assigned to keep the peace of our said lord the king, and to hear and
determine divers felonies, trespasses and other misdemeanors committed
in the same county of ], to be examined before the said justice, touch-
ing and concerning the said supposed crime.
Fifth.— Statement op the Discharge op the Plaintifp and End op
THE Prosecution.
Which said (last mentioned) justice having heard and considered all that
the said defendant could say or allege against the said plaintiff touching
and concerning the said supposed offense, then and there, to wit, on the day
and year last aforesaid, at, etc. (venue), aforesaid, adjudged and determined
that the said plaintiff was not guilty of the said supposed offense, and then
and there caused the said plaintiff to be discharged out of custody, fully
acquitted and discharged of the said supposed offense ; and the said de-
fendant hath not further prosecuted his said complaint, but hath deserted
and abandoned the same, and the said complaint and prosecution is wholly
ended and determined, to wit, at, etc. (venue)^ aforesaid. ^
12 Cush., 482; Parker v. Farley, 10 which has a definite meaning,
Cush., 279. namely, by a jury on the trial, and
^ The declaration must show that that it must be shown upon the face
the former prosecution was at an of the declaration that the original
end, though the omission will be prosecution was at an end." Theac-
aided by verdict 1 Stra., 114; Com. tion must not be brought before the
Dig. , Action on the Case for Conspir- first suit has been legally determined,
acy, C. 6; Bac. Ab., Action on the and it must be averred that the
Case, H. In 2 T. R., 231, Buller, J., former suit terminated in the present
observed that " the words ' released plaintiff's favor, and a legal conclu-
and discharged from the said impris- sion of the suit must be shown ; and
onment' are not sufficient, they not if the suit be not proved to have
being equal to the word ' acquitted/ been determined in the manner al-
pleading. 403
Sixth. — Statement op the Second Count.
And whereas also the said defendant, further contriving and malicioaslj
and wickedly intending as aforesaid, heretofore, to wit, on, etc., at, etc.
(venue)f aforesaid* falsely and maliciously, and without any reasonable or
probable cause whatsoever, charged the said plaintiff with having commit-
ted a certain offense punishable by law, to wit, felony ; and upon such
last-mentioned charge he, the said defendant, then and there, to wit, on
the same day and year last aforesaid, at, etc. (venue), falsely and maliciously
caused and procured the said plaintiff to be arrested by his body, and to be
imprisoned, and to be kept and detained in prison for a long space of time,
to wit, for the space of ^ then next foUowing, and at the expiration of
leged, it is a ground of nonsuit, notwithstanding the case in 1 Esp.
2 Chitty's Pleadings, 18th Am. ed., Bep., 79; 3 Esp. Rep., 84, and no ob-
603; Year Book, 2 R., 8, pi. 22; Dyer, jection was taken to this mode of
284; Yelv., 117; Gilb. Cases Law and determining the suit. See Tidd*8
Evid., 163; Com. Rep., 190; 1 Salk., Prac Forms, Index, Judgment for
15; Dougl., 215; Willes, 250, n. a; Defendant, as to the manner of de-
1 Esp. Rep., 79; 10 Mod., 209; Bac. scribing the different modes by
Abr., Action on the Case, H. ; Com. which the suit terminated in favor
Dig., Action Case Conspiracy, C. 5; of the present plaintiff. An aver-
2 T. R., 225, 232; 1 Saund., 2286, in ment that the suit is ended is evi-
notes, and 228, 229. But the omission denced by proof of the rule to dis-
is aided by verdict by the common continue upon paying of costs, and
law. 1 Saund., 2286, in notes, and that the costs were taxed and paid
228, 229. See the reason. 1 Saund., (1 Stark., 48; 4 Campb., 218, S. C);
2282>; 2 T. R, 228. It seems suffi- and the discontinuance (upon pay-
cient to say generally '*that the ment of the costs) has relation back
said suit was ended and determined.*' to the term when the rule to discon-
See 8 Ld. Raym., 800. In Morg. tinue was pronounced. 1 D. & R.,
Prec, 554-5, the declaration merely 2; 16. & C, 640, S. C. In tliecom-
alleges '*that the plaint was duly mon pleas it seems that the plaintiff
ended and determined.*' In Weth- must prove the discontinuance by an
erden v. Embden, partially reported entry of it on the roll, aemhle, 1 M.
in 1 Carapb., 295, the manner in & P.. 195. How far an agreement
which the suit ended was shown and to determine a suit, afterwards made
objected to on motion in arrest of a rule of court, is sufficient, see 2
judgment, but the court held that it D. & R., 343. In an action for a
was averred that the suit was ended, false arrest upon a plaint in the sher-
the statement of the manner how iff*s court of London, evidence was
was unnecessary, and the plaintiff given that the usual course of that
had judgment, and it should seem a court, upon the abandonment of a
count averring generally a discon- suit by the plaintiff, was to make an
tinuance is sufficient. 6 Price, 540. entry in the minute book of '* with*
Several of the precedents in the old drawn,** and it was held that proof
entries referred to 8 Wentw. Index, of such entry in the minute book was
XIX, do not show the termination sufficient to prove the determination
of the first suit. The plaintiff in of the suit. 14 East, 216.
the above action obtained a verdict,
404 PLEi.DING.
which said time, he, the eaid plaintiff, was duly discharged and fully
quitted of the said last-mentioned offense, to wit. at, etc. (venue), afor^
■aid.
Sevemth.— Statement of the Claim foe DAMAGEa.
By means of which said several premises, he, the said plaintiff, hath been
and is greatly injured in his said credit and reputation, and brought into
public scandal, infamy and disgrace with and amongst aU his neighbors,
and other good and worthy subjects of this kingdom, and divers of those
neighbors and subjects, to whom his innocence in the premises was un-
known, have, on occasion of the premises, suspected and believed, and still
do suspect and believe, that the said plaintiff hath been and is guilty of
[felony] ; and also the said plaintiff hath, by means of the premises, suf-
fered great anxiety and pain of body and mind, and hath been forced and
obliged to lay out and expend, and hath laid out and expended, divers
large sums of money, in the whole amounting to a large sum of money, to
wit, the sum of £ , in and about the procuring his discharge from the
Bald imprisonment, and defending of himself in the premises, and the man-
ifestation of his innocence in that behalf, and hath been greatly hindered
and prevented, by reason of the premises, from following and transacting
his lawful and necessary affairs and business for a long space of time, to
wit, for the space of , and also, by reason and by means of the said
premises, the said plaintiff hath been, and is, otherwise greatly injured in
his credit and circumstances, to wit, at, etc. (venue aforesaid).
Eighth.— The Ad Damnum.
To the damage of the plaintiff of > dollars.
Ninth.— The Conclusion.
And therefore he brings suit, etc ' By ^— , his Attorney.
§ 9. Complaint for abuse of legal process.— An action to
recover the damages sustained by reason of the abase of legal
process differs materially from actions for malicious prosecu-
tion and false imprisonment, both in matter of pleading and
proof. The action will lie against one who wrongfully and
wilfully causes an execution to issue on a judgment which he
knows to be paid and satisfied, under which the property of
the defendant in the execution is taken and sold, and it is not
necessary that actual malice should be alleged in terms or ex-
plicitly proved ; ' and the action may be maintained against
1 In regard to th Amount of dam- If the jury assess an amount beyond
ages to be assesed, it is only neces- that sum, the excess should be re*
sary to lay them high enough to mitted and judgment rendered only
cover the injury complained of, for for the residue. Sedgwick on Dam-
no recovery can be had beyond the ages, 5th ed., 681.
amount claimed in the declaration. > Baylies' Code Pleading and
N.
PLEADING. 405
aoy one who wrongfully sues, arrests and imprisons a party
for a wrongful or fictitious claim, without alleging or proving
a want of probable cause.^ The action lies against a landlord
who, without right, turns his tenant off the farm and seizes
bis personal property, and, for the purpose of compelling him
to abandon his rights, has caused his arrest on a false and
fictitious criminal charge. And the tenant may maintain an
action to recover damages without alleging or proving the
termination of the criminal proceeding.^
§ !©• A precedent. —
(1) Statement of the Case.
«
The defendant, R. J. , pretended to have a claim of $50 against Antcliff , the
plaintiff, an old man over eizty years of age, and a farmer, living in Wash-
tenaw county, which adjoins the township of N., in Jackson county, where
R. J., a laborer, resided. In November, 1886, J. put his claim in the hands of
C. for collection. C. understood what the claim was for, and was to have
all he collected over |40. Without attempting to collect it without suit, C.
went to J. M. G., a justice of the peace of Jackson county, and took out a
summons in favor of J. against Antcliff, returnable January 11, 1887, and
commanded the constable to summon Antcliff, '* if he shall be found in
your county, to answer to J.," etc. This summons was directed to any
constable of Jackson county, and was handed by C. to one B., a deputy-
sheriff of Washtenaw county, to serve, claiming that there was a new
statute under which B. could make service in Washtenaw county. The
deputy returned the summons as personally served upon Antcliff in the
township of M., Washtenaw county, January 4, 1887. Between the day
of this service and the return day of the summons, Antcliff received the
following letter, unsigned: ** Brooklyn, Feb. 8, 1887. Mr. Antcliff: Don't
let Mr. G. or any one else fool you into coming into Jackson county. All
they serve those kind of papers on you for is to get you into this county ;
then they will serve another kind of summons on you. Look out for them."
In consequence of this communication Antcliff did not appear. On the
return day J. and C. were on hand. No one else was present except the
justice. His docket shows that plaintiff filed an affidavit on that day, stat-
ing, in substance, that he was a residentof the township of N., in Jackson
county; that the defendant was a resident of M., Washtenaw county ;' that
the suit was commenced for the recovery of the value of personal services
rendered by him for Antcliff, at the latter^s request: and that Jackson and
Washtenaw are adjoining counties. This affidavit was prepared by C,
who also filed a declaration upon some of the common counts. No bill of
particulars was filed. The justice's docket shows that: ''After waiting
Forms, 167 (1891); Brown v. Feeter, ^Babinger v. Sweet, 1 Abb. N. C,
7 Wend., 801 (1881). 268: 6 Hun. 478; Baylies' CJode
1 Hazard v. Harding, 63 How. Pleading and Forms, 157 (1891).
(N. Y.), 826 (1882).
406 PLEADING.
one hour, and defendant not appearing, I proceeded to hear and try the
cause. Plaintiff, heing sworn in his own belialf, testified that he was a
resident of the township of N.. Jackson county; that he was acquainted
with Antcliff, the defendant, who resided in M., Washtenaw county ; that
in the year 1886 he performed personal labor for the defendant at his re-
quest, which said personal labor was worth the sum of $800 ; that the same
was now due and unpaid. There being no witnesses on the part of the de-
fense, and no one appearing for the same, and having waited one hour,
therefore, after hearing the testimony of the plaintiff, and in pursuance of
a statute approved May 81, 1879, entitled," etc, . . . " I hereby render
judgment forthwith in favor of the plaintiff, R. J., and against the defend-
ant, Antcliff, for the sum of three hundred dollars (|300) damages, and two
dollars and sixty cents costs of suit. J. M. Q., Justice of the Peace.**
Five days after the rendition of this judgment, C. procured a transcript
of the judgment and filed it with the clerk of the circuit court of JadEson
on the same day. Execution was issued the same day on this transcript
and taken by C. to Ann Arbor, and put into the hands of William Waish,
sheriff of Washtenaw county. It was there agreed between C. and the
sheriff that the latter should meet him in the village of M. on the 27th day
of January, 1887, and they two then to go together to the farm of Antcliff
to collect the execution. On the last-named day C. and one C. E. P. met the
sheriff at M., and from there started to the farm of Antcliff. Upon the
way there they met Antcliff and his wife on their way to town. They in-
formed Antcliff of the execution. He denied owing J. a cent, but, upon
threats of a levy, he and his wife went back to his farm with them. While
there C. and P. threatened to have the sheriff levy on the farm if the judg-
ment was not paid, as there was not, as they said, personal property enough
to pay it. Antcliff, before going back to the farm, wanted to go on to the
village and see an attorney,. but he was told by all three of them that if he
did they should go on to his farm and levy upon it. Finally, under the
threats of C. and P. to drive off his stock and to also levy on his farm, and
also influenced by his scared wife, he settled the matter up by paying them
$240 in cash. Antcliff v. June et al., 81 Mich.^ 477; 45 N. W. Bep., 1019
(1890).
(2) The Declaration.
Statb of Michigan, Circuit Court for the County of Jackson, of the
8d day of February, A. D. 1888. Jackson County — ss. : John Antcliff,
plaintiff in this suit, by H. A F., his attorneys, complains of B. J. and
J. R. C, defendants in this suit, being in custody, eta, of a plea of tres-
pass on the case, for that whereas the said defendants heretofore, to wit, on
the 8d day of January, A. D. 1887, at the township of Columbia, in said
county, went and appeared before one J. M. G., then and there being one
of the justices of the peace in and for said county of Jackson, and then and
there, before the said justice, falsely and maliciously, and without any rea-
sonable or probable cause whatsoever, caused and procured the said justice
to issue and grant him certain summons against the said plaintiff, and in
favor of the said R. J., as plaintiff therein, as follows, to wit: ** State of
Michigan, County of Jackson — ss. : To any constable of said county, greet*
PLBADINO. 407
ing : In the pame of the people of the state of Michigan, yon are hereby-
commanded to summon John Antcliff, if he shall be found in your county,
to appear before me, one of the justices of the peace in and for said county,
at my ofSce in Columbia, on the 11th of January, A. D. 1887, at 10 o'clock
in the forenoon, then and there to answer to R. J., in a plea of trespass on
the case upon promises, to his damage $800 or under. Hereof fail not, but
of this writ, with your doings, make return according to law. Given
under my hand at Columbia, Jackson county, this 8d day of January, A. D.
1887. J. G., Justice of the Peace." And the said defendants afterwards,
to wit, on the same day of the date of said summons, delivered the same to
one M. B., who claimed to be a deputy -sheriff of the county of Washte-
naw, and then and there, without any reasonable or probable cause what-
ever, caused and procured the said pretended deputy-sheriff of the county
of Washtenaw to serve the said summons, so issued as aforesaid by said
justice of the peace, upon the plaintiff in the said county of Washtenaw, he,
the said plaintiff, being then and there a resident of said county of Washte-
naw, and^ not of the county of Jackson, and the said M. 6. , as such deputy-
sheriff, as aforesaid, returned the said summons to the said justice on or
before the return-day thereof, with a return of personal service thereon in-
dorsed by him, and filed the same with the said justice of the peace, and after-
wards, to wit, on the llth day of January, 1887, the said defendants, without
any reasonable or probable cause whatsoever, caused and procured the said
justice of the peace then and there to give and enter in his docket a judg-
ment in favor of said R. J., and against this plaintiff, for the sum of $800
damages and $2.00 costs of suit, they, the said R J., and J. R. C, knowing
that the said justice had no jurisdiction of the said pretended cause so
pending before him ; and thereupon the said defendants afterwards, to wit,
on the 17th day of January, A. D. 1887, falsely and maliciously, and with-
out any reasonable or probable cause whatsoever, went and appeared be-
fore said justice of the peace, and then and there made and filed with the
said justice an affidavit of the said J. R. C, for the purpose of obtaining a
transcript of the said pretended judgment to be filed in the office of the
clerk of the circuit court for the county of Jackson, and then and there
obtained such transcript of said justice, in due form, duly certified by said
justice ; and afterwards, to wit, on the same day last mentioned, they, the
said defendants, caused and procured the said transcript so obtained as
aforesaid to be filed in the office of the circuit court for the county of
Jackson, and the same was by the said clerk then and there duly entered
and docketed as a judgment <^ the circuit court for the county of Jackson ;
and, at the same time of entering and docketing said transcript judgment,
they, the said defendants, falsely and maliciously, and without any rea-
sonable or probable cause whatsoever, caused and procured the said clerk
of the circuit court for the county of Jackson to issue an execution upon
said pretended judgment, in due form, dated the 17th day of January,
and directed to the sheriff of the county of Washtenaw; and afterwards,
on the same day last aforesaid, went and delivered the said execution to
W, W., then sheriff of the said county of Washtenaw, and afterwards,
to wit, on the 27th day of January, A. D. 1887, the said defendants caused
and procured the said sheriff of Washtenaw county to go and enter upon the
408 PLEADING.
premises of the plaintiff, and then and there demand from said plaintiff
payment of the said execution, and then and there threatened the said
plaintiff that if he did not immediately pay the same, then the said sheriff
should and would at once levy upon and sejze all of the personal property
of said plaintiff upon said execution, and sell the same to make the amount
thereof; and the said defendant J. R. C. was then and there present with the
said sheriff, aiding as the attorney and agent of the defendant R. J., and as-
sisting and directing the said sheriff, and then and there stated to the plaint-
iff that said execution was good and valid, and he would have to pay the
same, and then and there, by means of said representations last mentioned,
and the threats aforesaid, so made by said sheriff to seize and sell the prop-
erty of said plaintiff, they, the said defendants, falsely and maliciously, and
without any reasonable or probable cause whatsoever, procured and forced
the said plaintiff to pay to the said defendants, against his will, a large
sum of money, to wit, the sum of $240, as satisfaction of said pretended
execution and the pretended judgment upon which the same waH issued,
and the plaintiff did then and there pny the same to the said W.W., sheriff
as aforesaid, and the said defendant J. R. C, attorney for said defendant
R. J., then and there received the same in full satisfaction aforesaid.
And whereas, also, the said defendants, without having any reasonable
or probable cause for so doing, but contriving and intending to harm, op-
press and injure the said plaintiff, falsely and maliciously went and swore
out a summons in favor of said defendant R. J., and against the plaintiff,
before J. M. Q., a justice of the peace of the township of Columbia, in said
county of Jackson, on the 8d day of January, A. D. 1887, and returnable
before said justice on the 11th day of said January, 1887, at 10 o'clock in
the forenoon of that day, they, the said defendants, then and there well
knowing that the said pretended plaintiff in said suit had no just cause of
action whatever against the said plaintiff of any kind, and that said plaint-
iff resided in the county of Washtenaw, and not in said county of Jackson,
and they, the defendants, then and there, falsely and maliciously intend-
ing to so use the said summons, so issued as aforesaid, as to ob\ain an
illegal and fraudulent judgment against the said plaintiff for a large
amount of money, to wit, the sum of $300, and to obtain an execution,
and to use the same for the purpose of extorting the said amount of money
from said plaintiff; and such proceedings were thereupon had that after-
wards, to wit, on the said 11th day of January, A. D. 1887, the said de-
fendants appeared before the said justice at his office in said township of
Columbia, at the hour mentioned in the said summons for the return
thereof, and then and there caused and procured the said justice to enter
and docket a judgment in favor of said R. J., and against the plaintiff, for
the sum of $800 damages and $2.60 costs of suit, which said pretended
judgment was illegal, fraudulent and void, as said defendants well knew;
and the said defendants afterwards, to wit, on the 17th day of January,
1887, falsely and maliciously caused and procured the said justice to make
and issue a transcript of said pretended judgment in due form, and duly cer-
tified by said justice, and afterwards, to wit, on the same day last men-
tioned, filed the said transcript in the office of the clerk of the circuit court
for the county of Jackson, and then and there caused the said derk to
PLEADING. 40^
enter and docket the same as a judgment of the circuit court for the
county of Jackson ; and, at the same time of entering and docketing said
transcript judgment, the said defendants caused and procured the said
clerk of the circuit court to issue an execution upon said pretended judg-
ment in due form, and directed to the sheriff of said county of Washte-
naw, and on the same day delivered the said execution to W. W., sheriff
of said Washtenaw county, and afterwards, to wit, on the 27th day of
January, 1887, the said defendants caused and procured the said W. W.»
sheriff as aforesaid, to proceed to collect the said execution from the plaint-
iff, and force him, the said plaintiff, to pay the same; and the said plaint-
iff, then and there, against his will, and protesting that he was not liable
to pay the same, or any part thereof, was forced and compelled by said
sheriff, in order to protect his property from levy and sale, to pay the same
to him, and did pay to him, for said defendants, the sum of $210 in
money, — all which said several grievances in this court mentioned were
done and committed by said defendants against the plaintiff, falsely and
maliciously, and without any reasonable or probable cause whatsoever.
By reason of which said several premises the said plaintiff has been and is
greatly injured and put to large expense and trouble and to great anxiety,
and has been and is otherwise greatly^ injured in his credit and circum-
stances, to the damage of the plaintiff of $5,000, and therefore be brings
this suit. H. & F., plain tiff*s attorneys. A. B., of counsel. ^
^In discussing the sufficiency of without probable cause, and the
this declaration Morse, J., said: For party had been injured or damaged
every malicious wrong there is cer- thereby. I am still of the opinion'
tainly in this day and age a remedy : there expressed, and have been f or-
and, under our liberal system of tified in my position by the facts of
pleading in this state, a plain and this case, and the decisions of other
clear statement of the facts consti- courts. McPherson v. Runyon, 41
tuting the wrong is sufficient, and Minn., 524; 48 N. W. Rep., 892 ; Pope
it is but little matter, in actions of v. Pollock, 46 Ohio, 867; 21 N. E. Rep.,
trespass on the case, what the action 856 ; Allen v. Codmau, 189 Mass., 186.
is named or called. The declaration See, also, 21 Amer. Law Reg., 281,
plainly shows a malicious and ao- 853.
tionable wrong, and every averment It is true that the general rule is
was supported by cogent proof. It that, to support an action for ma«
may be that the prosecution of the licious prosecution, the plaintiff
suit to judgment in a justice court must establish three things: First,
by itself alone did not touch the per- the fact of the alleged prosecution^
son or property of the plaintiff, but and that it has come to a legal ter-
the writer of this opinion, in Brand mination in the plaintiff's favor ;
V. Hinchman. 68 Mich., 596-598; 86 second, that the defendant had not
N. W. Rep., 664, held that it was not probable cause ; third, that he acted
necessary, in an action for the ma- from malicious motives. Hamilton
licious prosecution of a civil suit, v. Smith, 89 Mich., 222, 225. In the
that the person should be molested case before us, the defendants had
or property seized, if it appear' d not probable cause against Antcliff.
that the suit was malicious, and It was conclusively shown that J.
410 PLEADING.
§11. Special damages. — The rale of law is that special
damages must be particularly specified in the statement of
the claim, declaration or complaint, or the plaintiff will not
1)e permitted to give evidence of such damages at the trial.
The law stated hy Greenleaf: "Whore the damages, thongh
the natural consequences of the act complained of, are not
the necessary result of it; they are termed special damages,
which the law does not imply, and therefore, in order to pre-
vent a surprise upon the defendant, they must be particularly
specified in the declaration.^
§ 12, The law stated by Chitty. — Whenever the damages
sustained have not necessarily accrued from the act oom-
never had any claim against Ant- no case of any greater abuse of pro-
cliff, except one for $50 for getting cess than this. There was nothing
him a wife, and never pretended to to base it upon in the beginning, and
have any other; and from C.*s own it was procured, in every stage of
testimony it is apparent that he the proceeding thereafter, by fraud
knew this. He testifies that J. told and perjury, which ought to be pun-
him of some other items of account, ished by a term in state prison to
but he cannot remember any except both of the defendants. It was used
of the $50. Tlie judgment was taken for no lawful or legitimate purpose,
for $900. Witnesses swore that J. If ** entering up a judgment and
told them he did this because C. told suing out execution after the de-
him he might just as well get a mand is satisfied" is an abuse of
judgment for $800 as for $50. C. does process (Barnett v. Reed, 51 Pa. St,
not deny this in his testimony. The 190), then, certainly, obtaining a
taking and collecting of a judgment judgment by fraud and perjury,
for $300, under these circumstances, when there was never any demand
shows malice. in favor of J. against Antcliff, and
But it i^ not necessary to deter- suing out an execution upon such
mine whether the first count was a judgment, when the defendants
good one, in an action of malicious knew that it was f^W and fraudu-
prosecution. It sets out fully a con- lent, and extorting money under
fipiracy between the defendants, J. such execution, is also an abuse of
and C, to defraud the plaintiff, and process. Antcliff v. June (Mich.),
that he was defrauded out of the 45 N. W. Rep., 1019 (1890).
money paid upon this void judg- ^2 Greenl. Ev., § 354; Home v.
ment. It therefore clearly sets out Sullivan, 83 111., 80 (1876); Baldwin
an actionable wrong, — one that can v. W. R. Corporation, 4 Gray, 388
be recovered for in an action upon (1855); Squire v. Qoold, 14 Wend.,
the case, — and it is immaterial what 159 (1885); Donnell v. Jones, 18 Ala.,
it is called. 490 (1848); Adams v. Gardner, 78
If process is also wilfully made 111., 668 (1875); 1 Chitty*s Pleading
use of for a purpose not justified by (4th ed.), 828, 846, 847; Baker y.
the law, this is an abuse for which Green, 4 Bing., 817; Pindar v. Wad-
an action will lie. I can conceive of worth, 2 East, 154.
PLEADING. 411
plained of, and conseqaently are not implied by law, then, in
order to prevent the surprise of the defendant which might
otherwise ensue on the trial, the plaintiff must, in general,
state the particular damage which he has sustained, or he will
not be permitted to give evidence of it. Thus, in an action of
trespass and false imprisonment, when the plaintiff offered to
give in evidence that during his imprisonment he was stinted
in bis allowance of food, he was not permitted to do so be-
cause the fact was not, as it should have been, stated in his
declaration.^
Illustrations of the btjlb. —
(1) Special damages must be specially pleaded — Loss of hoarders.
Home and Sullivan occupied adjoining houses in Chicago separated bj
a narrow space. Home erected on his ground a high-board fence to pro-
tect his premises from annoyances which he had suffered from the in-
mates of SuUivan^s house casting offensive substances from the windows
upon his premises. Repeated attempts were made by the inmates of Sul-
livan's house, in the night-time, to tear down the fence, and it was partially
destroyed. This conduct formed the subject of a complaint under which
Sullivan was arrested. He was discharged and the complaint dismissed.
Nearly two years afterwards he brought an action for malicious prosecu-
tion against Home. In his declaration the statement of damages was in
the usual form. On the trial of the case the court admitted evidence of
special damages, loss of income, claimed as arising from plaintiff's board-
ers leaving his house after his arrest. The judgment being for the plaint-
iff Home appealed.
Sheldon, C J. : ^' It was error to permit evidence of special damages,
claimed as arising from plaintiff's boarders leaving after the arrest, and
the loss of income on this account There is no i>articular allegation in
respect thereto in the declaration. The rule is, that special damages, such
as these, must be particularly specified in the declaration or the plaintiff
will not be permitted to give evidence of them at the trial.** Home y,
SulUvan, 68 UL, 80 (1876).
(2) Bad condition of prison and poor food — Special damages^ Must he
specially pleaded.
Weston sued Miles for false imprisonment. He had been found loitering
around Miles* house in the night, and Miles called a policeman, and he was
arrested without a warrant, taken to the station, and then tried, convicted
and fined. In his declaration the general statement of damages was in
the usual form. No special damages were stated. On the trial the court,
under objections, permitted the plaintiff to give evidence of the abuses to
which he was subject, by giving a description of the particular place
1 1 Chitty's Pleadings, 897.
iI2 PLEADING.
where he was confined, its bad and unfit character, and the fact that he
was not furnished with food ; and while plaintiff was detailing these abuses
the court said to him, *' You can state in that connection that you w^ere
not allowed to get witnesses." Under this suggestion, which was excepted
to by defendant's counsel, the plaintiff said: "I was not allowed to get
witnesses. I was fined $25."
The judgment being for the plaintiff defendant appealed. In the opin-
ion of the supreme court reversing the judgment. Justice McAllister on this
point said : *' That he was ill-treated by being put by the officer in such
place as described, denied food or the privilege of getting his witnesses,
subjected to oppressive conduct on the part of the magistrate, and fined,
were none of them damages which necessarily accrued from the act of the
defendant, nor were they damages implied by law ; and to prevent surprise
on the defendant, such of them as defendant could be held responsible for
should have been stated in the declaration." Miles v. Weston, 60 lU., 361
(1871).
(8) Special damages — Insufficient statement in declaration.
During the months of June and July, 1888, one L. C. Hartman was a
justice of the peace of Dodge township, Ford county, Kansas; Hamilton
county was attached to Ford county for judicial purposes; Levi T. Rice
was atCoolidge, in Hamilton county, in the employment of the railroad
company. On June 29, 1888, the company, through its agents, procured
the justice to go to Coolidge, a distance of one hundred and fifteen miles
from his office, and there to entertain a complaint made by one of the
company's agents against Rice and others, charging them with grand
larceny, to administer the necessary oath, and then and there issue his
warrant for the arrest of the persons so charged. Rice, along with the
others, was arrested and taken to Dodge City, and there imprisoned in the
county jail until July 2, 1888, when he was discharged. Rice, upon his
discharge, brought an action against the railroad company for a malicious
prosecution. He recovered, and the company removed the case to the su-
preme court on a writ of error.
Valentine, J. : It is claimed that the trial court erred in admitting evi-
dence of special damages not specifically alleged in the petition. The court
permitted Rice, the plaintiff below, as a witness, to testify that shortly
after his arrest and imprisonment he was taken down with a fever, and by
reason thereof was obliged to give up work entirely. This evidence was
permitted over the objections and exceptions of the defendant below, and
under the claim, on the part of the plaintiff below, that such sickness was
produced by the imprisonment. There is no allegation in the petition, or
elsewhere, that the arrest or imprisonment caused the plaintiff to become
sick, nor any allegation of facts from which such sickness would neces-
sarily follow as a consequence. The plaintiff, in his petition, simply claims
damages for injury to his reputation as an honorable citizen, and for hav-
ing suffered remorse and humiliation, by reason of the prosecution, and for
damage to his reputation as a business man. Under this petition evidence
could not be given of any such consequential damage as sickness, for no
notice was anywhere given that such evidence would be offered. Upon
PLEADING. 413
this subject the court instructed the jury, among other things, as follows :
*'The plaintifif should be made whole for his loss of time, of health, his
anxiety and suffering," etc.
Air. Sutherland, in his work on Dam'ages, uses the following language :
"Under a general allegation of damages the plaintiff may prove and re-
cover those damages which naturally and necessarily result from the act
complained of; for these damages, the law implies, will proceed from it.
These are called general, as contradistinguished from special, damages,
which are the natural, but not the necessary, consequence." ''Special
damages are required to be stated in the declaration, for notice to the de-
fendant, and to prevent surprise at the tried." 1 Suth. Dam., 763.
In the case of Roberts v. Graham, 6 Wall., 579, the following language
1b used : *' Special damage, whether resulting from tort or breach of con-
tract, must be particularly averred in order that the defendant may be
notified of the charge and come prepared to meet it. Special, as contra-
difitingui^hed from general, damage, is that which is the natural, but not
the necessary, consequence of the act complained of."
In 1 Chit. PI. (16th Amer. ed. from 7th Eng. ed.)* 411, the following lan-
guage is used : *' Damages are either general or special. General damages
are such as the law implies or presumes to have accrued from the wrong
complained of. Special damages are such as really took place and are
not implied by law, and are either superadded to general damages arising
from an act injurious in itself, as where some particular loss arises from
the uttering of slanderous words actionable in themselves, or are such as
arise from an act indifferent, and not actionable in itself, but injurious only
in its consequences, as where words become actionable only by reason of spe-
cial damage ensuing. . . . And whenever the damages sustained have not
necessarily accrued from the act complained of, and consequently are not
implied by law, then, in order to prevent the surprise on the defendant
which might otherwise ensue on the trial, the plaintiff must, in general,
state the particular damage which he has sustained, or he will not be per*
mitted to give evidence of it. Thus, in an action of trespass and false im-
prisonment, where the plaintiff offered to give in evidence that during his
imprisonment he was stinted in his allowance of food, he was not permitted
to do so, because the fact was not, as it should have been, stated in his dec^
laration. And in a similar action it was held tJiat the plaintiff could not
give evidence of hie health being injured, unless specially stated.^
We think the court below erred in the admission of this evidence. No
person could have anticipated from the facts alleged in the plaintiff's peti-
tion, including the arrest and imprisonment, that any such sickness would
have followed. Such sickness would not be a necessary result from such
facts, nor would the law imply any such result. If it was the desire of
the plaintiff to recover enhanced damages because of his sickness he should
have alleged the sickness in his petition, or at least he should have alleged
facts from which it might be inferred, or from which the law would imply
that sickness would necessarily follow. No such facts were alleged. This
question was raised in the court below by objecting to the introduction of
the evidence, by excepting to the ruling of the court permitting it to be
414 PLEADING.
introduced, by exceptions taken to the instructions of the court to the jury,
by motion for a new trial, and by excepting to the ruling of the court over-
ruling the motion for a new trial. Judgment reversed. Atchison^ T. &
S. F. R. Ck). V. Rice, 86 Kan., 598; 14 Pac. Rep., 228 (1887).
§ 1 3. Allegation of special damages. —
(1) Statement of Facts.
In an action for maliciously suing out a writ of attachment without
probable cause, the declaration averred that the plaintiff had shipped to
Chicap:o four carloads of hogs of great value, to wit, of the value of $3,500,
and which were lawfully in the possession of and the property of the
plaintiff, in which all his capital for the conducting of his said business
had been invested ; that the defendant, well knowing the premises, but
contriving and wrongfully, maliciously and injuriously intending to injure
the plaintiff, and to deprive him of the profits he otherwise would have de-
rived from conducting his said business, and from the sale of his said prod-
uce, and to break up his said business and employment and cause him to
be greatly aggrieved and injured in the premises in that behalf, wrongfully,
unjustly and maliciously and without probable cause therefor, caused and
procured to be issued out of the superior court of Chicago a writ of attach-
ment, etc., and wrongfully, injuriously and maliciously caused the same
to be levied on the property of the plaintiff, to wit, two hundred and forty-
nine hogs, of great value, to wit, of the value of $3,500, and caused and
procured said hogs, by virtue of said writ, to be kept and detained in cus-
tody of the sheriff for a long space of time, etc.
(2) Statement of the Claim for Special Damages.
And the said plaintiff, in order to get possession of said goods, or the
proceeds of the same, was forced and obliged to pay out a large amount of
money, to wit, the sum of $1,200 in attorney's fees and costs, and charges
and other expenses in the litigation which said defendants forced upon said
plaintiff in the said court and in the supreme court of the state of Illinois,
and the said plaintiff has been and is by means of the premises greatly in-
jured and damnified in his credit and circumstances. . . . And plaintiff
says that by means of the premises aforesaid, and the wrongful and in~
juriousacts of the said defendants toward him, his business aforementioned
was broken up and destroyed, and the profits that would have otherwise
accrued to said plaintiff from the prosecution of and conducting of said
business were wholly lost, and the profits that would otherwise i%ve ac-
crued to said plaintiff from the sale of said property of plaintiff, so seized
and attached as aforesaid, was wholly lost to plaintiff, and the said prop-
erty so attached as aforesaid by means of the premises was greatly depre-
ciated in value, and in order that the same might not be rendered totally
valueless, the plaintiff was forced and obliged to consent to a sale of said
property by the sheriff at a rate and price greatly below the real value of
said hogs, and that such sale was attended with great expense, which was
taken from the proceeds of such sale and the balance of the proceeds de-
FtEADING. 415
tained and kept in possesion by the Blieriff of said county. And the
plaintiff says that, by reason of the premises aforesaid, be lost a large
amount of money, to wit, the sum of $1,000, on the sale of said hogs. And
he further says that, by reason of the wrongful and injurious acts of the
defendants aforesaid, he was unable to meet his engagements or conduct
his business, whereby he was greatly injured in his credit and circum-
stances and reputation. And, also, that, by reason of such injurious
acts by said defendants aforesaid, his business was broken up and his
means of obtaining a livelihood taken away. And by means of the false
and malicious averments in the said affidavit of said Lawrence, and upon
which said writ of attachment was founded, his business reputation and
credit were greatly injured, to wit, at the county of Cook aforesaid, to
the damage of said plaintiff of $6,000.^
§ 14. Defendant's pleas and answer in actions for mali-
cious prosecation. — The answer or plea of not guilty, in an
action for malicious prosecation, pats in issue the wrongful
act, and it is .very seldom necessary to plead any other plea.
The gist of the action is the tort, and this is put in issue by
this plea. It compels the plaintiff to prove every essential
allegation in his declaration that goes to make up the liability
of the defendant.^
Form of the Plea of Not Guilty.
In the Court.
^— Term, 18—.
ats, V Malicious prosecution.
ul
And the defendant, by , his attorney, comes and defends the
wrong and injur}', when, etc., and says that he is not guilty of the said
supposed grievances above laid to his charge, or any or either of them,
in manner and form as the plaintiff has thereof complained against hini«
And of this he puts himself upon the country, etc.*
§ 1 6. Plaintiff's pleadings in actions for false imprison-
ment.— The statement of the plaintiff's claim, or complaint as
it is called in those jurisdictions in which the code practice
prevails, is at the most a very simple pleading. It will be
seen that it does not vary in any material part whether under
the code or at the common law.
^Lawrence v. Hagerman, 56 111., 619; 8 Jur., 986; 2 Greenl. Ev., aec.
68 (1870). 231.
> Puterbaugh's Common Law, 489 ; ' Puterbaugh*8 Common Law, 489.
1 Bing. N. C, 688; 8 Dowl. (a C),
416 PLEADING.
(1) A Complaint fob False Imprisonment.^
State op [^ In the Court,
County, f **' To the Term, A. D. 18—.
A. B., the plaintiff in this suit, by , his attorney, complains of
C. Dm the defendant, of a plea of trespass; for that the defendant on, etc, at*
etc., with force and arms, etc., then and there beat, bruised and ill-trented
him, the plaintiff, and arrested him, the plaintiff, without any authority
of law whatever, and then and there imprisoned him, and detained him in
prison there without any reasonable or probable cause whatever, for a long
space of time, to wit, for the space of hours then next following, con-
trary to the laws of the state of and the will of the plaintiff ; whereby
the plaintiff was greatly injured and bruised, and was also greatly injured
in his circumstances and credit, to wit, at, etc., aforesaid; and other
wrongs to the plaintiff then and there did, against the peace and dignity of
the people of the state of ; and to the damage of the plaintiff of
dollars: and therefore he brings suit, eta
[Count for common assault,-]
And also for that the defendant, on, etc., at, etc., with force and arms,
«tc., assaulted the plaintiff, and then and there beat, bruised, wounded
and ill-treated him,* and other wrongs to the plaintiff then and there did;
against the peace and dignity of the people of the state of , and to the
damage of the plaintiff of dollars; and therefore he brings suit, etc.
By , Attorney for Pl'flf.
(2) Petition in an Action fob False Imprisonment— A Kansas Fobm.*
-, Plaintiff,
vs.
. Defendant
J
Plaintiff states that the defendant on the ^— day of , A. D. 18 — ^ in
said county, arrested and imprisoned the plaintiff, and kept him detained
in prison for a long time, to wit, days, at the expiration of which time
he forced the plaintiff, contrary to law. to the oflSce of , a justice
of the peace; which imprisonment was under the false charge that the
plaintiff had committed the crime or offense of larceny, whereby plaintiff
was greatly injured in mind and body, and lost days' time from his
business, was injured in his credit and reputation, and was put to the ex-
pense of dollars in procuring his release from said imprisonment, to
his damage — dollars, for which he asks judgment.
Attorney for Plaintiff.
§ 18. Defendant's pleadings in actions for false imprison-
ment.— In trespass to the person the defendant can, nnder
the plea of not guilty, give in evidence any matter which
1 Puterbaugh's Common Law, 462 850 (1866); Puterbatigh's Common
(1867); Outlaw v. Davis et al., 27 111., Law, 459 (1867).
467 (1S61). ' Green and Dassler, Plractice^ ete^
'Chitty's Pleadings, 18th Am. ed., 215 (1879).
^LEADING. 417
•directly controverts the fact of bis having committed the acts
complained of. The plea of not guilty, therefore, is proper in
^ctioi^s for false imprisonment if the defendant committed no
imprisonment. Bat where the act complained of by the rules
of the common law prima facie appears to be a trespass, and
the allegations of the complaint cannot be denied, all matters
of confession and avoidance, justification or excuse, or those
by virtue of some warrant or authority, must, in general, be
specially pleaded.^
§ 16. Seasons for the rules. — The foregoing rules are
positive rules of law. The reason for their existence is to pre-
vent surprise on the plaintiff .at the trial by the defendant thus
assigning various reasons and causes of imprisoning the plaint-
iff of which he had no notice, and which, consequently, he could
not be prepared to meet at the trial on the plea of not guilty
on fair and equal terms, with respect to the evidence and
proof of facts.*
§17. Pleas of justification — Son assault demesne — Mo-
liter manus Imposuit^ etc. — In trespass to persons, actions
for false imprisonment, etc., such defenses as 8on assault de-
mesne; moderate cori^ction of a servant, etc. ; moliter manna
imposuit to preserve the peace, or a justification in defense of
the possession of property ; or by authority of law without
process, as a private individual; or under civil process, either
mesne or final, of superior or inferior courts, must, in the ab-
sence of statutory regulations, be specially pleaded.* For who-
ever assaults or imprisons another must justify by showing spe-
oially that the act was lawful.^ A plea justifying an arrest, upon
the ground that a felony had been committed, and that there
are reasonable grounds to suspect and accuse the plaintiff,
must distinctly state the specific reasons for suspecting the
plaintiff.*
1 1 Chittj on Pleadings, 501 ; 1 M Chitty, Pleadings, 501 ; Batter-
Saund., 298; 1 Ck>m. Dig., Pleader, worth T.Soper. 13 Johns., 443(1816);
E., 15, 16, 17; Stephens on Pleading Callet v. Keith, 2 East, 260; Row-
<2d ed.), 377; 2 Roll. Abr., 682; land v. Veale, Cowp., 18.
Waters v. SiUy, 4 Pick., 145 (1826); *1 Chitty, Pleadings, 502; Herrick
<3el8tonV. Hoyt, 13 John., 561 (1816); ▼. Manley, 1 Caines (N. Y.), 253
Rawson v. Morse, 4 Pick., 127 (1826). (1808); Hobart v. Haggett, 8 Fairf*
> Coke on Littleton, 383a, 4826; 1 (N. Y.), 67 (1835).
•Chitty, Pleadings, 502. »1 Chitty, Pleadings, 280, 601.
27
418 PLKA.DINO.
§ 18. Plea of justification — Opening and dose. — In cases
where the acts complained of cannot be disputed bat can be
justified, it is frequently advisable to plead the justification
alone, without the general issue, for by so doing the defend-
ant's counsel may be on the trial entitled to the opening and
close.'
§ 19. Former reeoTery — Estoppel. — Where the defend-
ant obtained a verdict, etc., in a former trial upon the same
cause of action, either against the defendant or another per-
son jointly engaged with him in the commission of the act
complained of, the defendant's answer or pleas should be
special by way of estoppel.^
§ 20. Pleading separately — Sometimes a question of pol-
icy.— In actions of trespass for false imprisonment it is a
very familiar rule of law that all persons engaged in the com-
mission of the act complained of are jointly liable to the
person injured for the damages sustained, but they are not
necessarily equally liable. They may, however, estop them-
selves from saying they are not equally responsible by join-
ing in a single plea. Where all are in fact equally liable, they
may with safety join in their pleas; but where they are not
all equally liable, the proper thing to do will be to plead sep-
arately each his particular defense. And if the defendants
are found guilty, the jury may assess damages against each
one separately according to the degree of his culpability as
shown by the evidence.
§21. Joint and several pleas — The general rule.— Where
the defense is in its nature joint, the defendants may all join
in the same plea, or they may each plead separately, without
committing the fault of duplicity; one defendant may plead
in abatement, another in bar, and a third may demur. In tres-
pass against two or more for an assault or for false imprison-
ment they may jointly plead that the plaintiff assaulted them
and that they in self-defense beat and imprisoned him, etc. ;
or they may sever in their pleas. So two defendants may
jointly justify an arrest under a joint warrant, and one of
several defendants may plead not guilty, and the other a justi-
1 1 Cbitty'8 Pleadings, 601 ; Weid- > i Chitty's Pleadings, 601.
manv. Kohr, 13 Serg. &R, 17(1825);
Davis V. Mason, 4 Pick., 156(1826).
PLEADING. 419
fication ; for one defendant cannot, by any plea he may plead,
oust the other of his defense.^
§ 22. Precedents of pleas — False imprisonment.—
(1) Thb General Issue at Ck)i£M0N Law— Not Guilty.
And the said , by , his attorney, comes and defends the
force and injury, when, etc., and says that he is not guilty of the said sup-
posed trespasses above laid to his charge, or any part thereof, in manner
and form as the said has thereof complained against him. And
of this he puts himself upon the country, etc.'
(2) Plea op the Statute op Limitations — An American Common-law
Form.
And for further plea in this behalf defendant says actio non, because he
says that the cause of action in the said counts mentioned, and each and
every one of them, did not, at any time within [five] years next before
the commencement of this suit, accrue to the plaintiff; and this he, the
defendant, is ready to verify ; wherefore he prays judgment if the plaintiff,
his action aforesaid, thereof against him, ought to have or maintain.
By , his Attorney.*
(8) The Modern English Form.
The alleged cause of action did not accrue within six years before this
euit.
Or,
The defendant will rely upon the statute of limitations.*
§ 23. Pleas of justification.—
(1) Under Final Process.
[Actio fwn,] Because the said defendant says that, before the time
when, etc., to wit, at, etc., on, etc. [time and place], one f by the
consideration and judgment of the court [here state the style of the court]^
recovered against the said plaintiff, as well a certain debt of, etc., as also,
eta, for his damages [here state the nature of the recovery and amount^
etc.], which he had sustained as well by occasion of the detaining of that
debt as for his costs and charges by him about his suit in that behalf ex-
pended, whereof the said plain tifif was convicted, as by the record and
proceedings thereof remaining in the said court appears, which said judg-
ment remains in its full force, not reversed, annulled, set aside, paid off or
satisfied ; and the said [debt and] damages, or any part thereof, not being
paid or satisfied to the said , and the said judgment being in full
force, he, the said , on, etc., for obtaining the said debt and dam-
ages, sued out of the said court, etc., a certain writ of execution, under
1 1 Chitty's Pleadings, 666 ; 2 Vin. * Puterbaugh's Common Law (Ill.)»
Ab., 76, pi. 14. 175 (1888).
S8 Chitty's Pleadings, 1061. < Odgers on L & S., 67S.
420 PLEADING.
the seal of the said court, directed to the sheriff of, etc., by which said
writ, etc. [following the writ], which said writ afterwards and before the
return thereof, to wit, on, etc., at, etc., was delivered to the said defend-
ant, then and there being sheriff of the said county, etc. [or^ " coroner,"
or, *' constable,*' or other officer, cls the case may be], to be executed in due
form of law; by virtue of which said writ the said sheriff of, etc., after-
wards, and before the return of said writ, and also before the said time
when, etc., to wit, on, etc., at, etc., gently laid his hands upon the said
plaintiff in order to take and arrest, and did then and there accordingly
arrest and take him, the said plaintiff, under and by virtue of the said writ
of execution, and imprison him, and keep and detain him so there impris-
oned and in custody under such execution and arrest, for the said time in
said declaration mentioned, as he lawfully might do for the cause afore-
said, which is the said trespass in the introductory part of this plea men-
tioned, and whereof the said plaintiff hath above complained against him,
the said , and this, etc. Wherefore, etc., if, etc.*
(2) On Suspicion op Felony, Without Process.
[Actio non.'] Because he says that, before and at the time when, etc,
to wit, on, etc., aforesaid, at. etc. [venue], aforesaid [here state the felony
to have been committed and the causes of suspicion against tlie plaintiff,
and which, in the plea in question, was stated as follows]: "The said
plamtiff was the servant of the said defendant, and was then and there
living and residing in the house of him, the Baid defendant; and the said
plaintiff, so being such servant as aforesaid, to wit, at, etc., divers goods
and chattels, to wit, twenty pairs of silk stockings and one hundred yards
of lace of great value, to wit, of the value of $1,000, the property of the
said defendant, had been and were feloniously stolen, taken, and carried
away from and out of the possession of tne said defendant, and afterwards,
to wit, on, etc., at, etc., divers, to wit, twenty bundles, containing the said
goods and chattels so feloniously taken and carried away as aforesaid,
were found and discovered hidden and concealed in a certain cellar of and
belonging to the house of the said defendant, and to which the servants of
the said defendant had access, and the said bundles containing the said
goods and chattels being so found and discovered as aforesaid were imme-
diately seized and taken away by the said plaintiff, the said plaintiff then
and there averring that the same were the property ofher, the said plaint-
iff, and the said plaintiff then and there endeavored to burn and make
away with the said bundles, with their contents aforesaid, and did actu-
ally burn divers, to wit, ten of the said bundles so containing the said
goods and chattels, the property of the said defendant as aforesaid;"
wherefore the said defendant, having good and probable cause of suspicion,
and vehemently suspecting the said plaintiff to have been guilty of or con-
<;erned in the stealing and carrying away of the said goods and chattels of
the said defendant, and to have feloniously taken and carried away the
«ame, did, at the same time when, etc., gently lay hands on the said plaint-
iff, and did give the said plaintiff in charge to one , then and there
1 Yates* Pleadings, 151.
PLEADING. ' 4211
l)eing a constable and peace officer of and for the county of Albany, and^
then and there requested the said constable and peace officer to take the said?
plaintiff into his custody, and safely keep her until she could be carried and'
conveyed, and to carry and convey her before some one of the justices
assigned to keep the peace in the same county, and to hear and determine
divers felonies and misdemeanors committed within the said city of Al-
bany, to be examined by and before such justice, touching and concern-
ing the premises, and to be further dealt with according to law ; and on*
that occasion the said , so being such constable and peace officer
as aforesaid, at the request of the said defendant, did then and there gently"
lay his hands upon the said plaintiff, take the said plaintiff into his custody,.
and as soon as conveniently could be, to wit, on the said day of ^
in the year aforesaid, the said plaintiff was carried and conveyed in cus-
tody to and before [here name the justice toith hie title, etc.]^ and also to
hear and determine divers felonies and misdemeanors committed within
the said city, to be examined by and before him touching and concerning
the premises, and to be further dealt with according to law ; and the said
plaintiff was then and there detained by order of the said justice, unti(
and upon the day of , in the year aforesaid, when she, the said
plaintiff, was examined by the said justice touching and concerning the
premises, and the said plaintiff was afterwards discharged out of custody
by the said justice, and by means of the said several premises aforesaid
the said plaintiff was imprisoned, and kept and detained in prison, for
the said several spaces of time in the said declaration mentioned, the same
being a reasonable time for that.purpoee, and lawful and just for the cause
aforesaid, which are the supposed trespasses in the introductory part of
this plea mentioned, and whereof the said plaintiff hath above complained
against the said defendant ; and this he is ready to verify. Wherefore^ etc. »
if, etc.*
(8) Umdeb Mesne Process.
[Actio nan,"] Because he says that before the said time, when, etc., in
the said complaint mentioned, to wit, on, eta, at, etc., a certain writ [or^
warrant] called [here the name of the process] was issued out of the court
[here the style or name of the courts or, was issued by, naming the offlcer].
whereby [recite t?ie process], and which said writ [or, warrant] was deliv-
ered to the said defendant, who was then and there [and yet is] sheriff [or,
coroner; or, constable, etc.], to be executed according to law, by virtue of
which said writ [or, warrant], [then as(l) until the words which is the said
1 Yates' Pleadings, 152. Chitty there cited. To justify an arrest by
says: "The plea justifying the ap- a private individual without warrant,
prehension of plaintiff on suspicion on suspicion, it is absolutely neces-
of felony must show the cause of sary that a felony shall have been
suspicion. 4 Taunt., 84; Holt, C. actually committed. 6 B. & C, 637.'
N. P. , 478. As to the causes for such And so in the case of a constable who,
suspicion, see Burn, J., title "Ar- of his own head, takes a party into
rest.** The question of a probable custody on suspicion. 8 Camp., 420."
cause is a mixed proposition of law 8 Chitty's Pleadings, 18th Am. ed.,
and fact 6 Bing., 554, and cases 1081.
'■422 * PLEADING.
'trespass, and then as follows, if an assault and battery and wounding i9
ehargedlt and because at the said time, when, etc., in the said count
mentioned, the said plaintiff having been so arrested as aforesaid, it was
necessary and expedient in order to keep him in safe custody, under and
by virtue of the said writ [or, warrant], and to prevent him from escaping
out ot such custody, that the said plaintiff should be taken by and in the
custody of the said , out of the said messuage or dwelling-house,
in the said first count mentioned, the same not being a place where the
«aid plaintiff could be kept in safe custody by the said , in pursu*
«nce of the said writ [or, warrant] to some place in the said bailiwick,
w^here he might be kept in the safe custody of the said , under
«nd by virtue of the said writ [or, warrant], and because the said plaintifE,
being then and there requested by the said , peaceably and quietly
to go out of the said messuage or dwelling-house with the said ,
for the purpose aforesaid, would not peaceably or quietly go with, nor
could otherwise be taken by, the said , from and out of the said
messuage or dwelling-house to such place, for the purpose of being kept in
safe custody as aforesaid, the said , as such sheriff [or, coroner ;
or, constable], as aforesaid, and the said , as his servant, and by his
command, before the time appointed for the return of the said writ, to wit,
at the said time when, etc., in the said first count mentioned, within the
bailiwick of the said sheriff, were forced and obliged to, and did then and
there necessarily and unavoidably, in order to keep the said plaintiff in safe
custody under and by virtue of the said writ and warrant, and to prevent
him from escaping out of the custody of the said , so being such
sheriff as aforesaid, with a little force and violence push, force and thrust
the said plaintiff from and out of the said messuage or dwelling-house in
the said first count mentioned, into the said street there; and because the
said plaintiff, at the said times when, etc., in the said first and second
counts mentioned, being down on the ground in the said street, wholly re-
fused peaceably or quietly to go with, nor could be otherwise taken by, the
said , to a place wherein he might be kept in safe custody, under
and by virtue of the said writ [or, warrant], and being so in custody as
aforesaid, attempted to escape from and out of the same custody, the said
defendants, for the purpose of taking him to some place of safe custody
as aforesaid, and to prevent him from escaping out of the custody of the
said , were forced and obliged to pull, haul and drag the said
plaintiff upon his back through the mud and dirt, in and along the said
street there, for the distance and length of way in the said first count men-
tioned, and in so doing unavoidably a little hurt, bruised and wounded
the . said plaintiff, and a little rent, tore, damaged and spoiled the said
clothes and wearing apparel of the said plaintiff in the said second count
mentioned, the said defendants doing as little damage to the said plaintiff^
etc.1
1 Yates' Pleadings, 158; 8 Chitty's tify imprisonment by force of such
Pleadings, 18th Am. ed., 1081. Chitty process, he must show the writ to be
says : '* If the sheriff or the officer to returned, but the bailiff who has a
whom mesne process is directed jus- warrant from the sheriff, or any per-
PLEADING. 429
%2i. Other pleas and answers. —
(1) MoLLiTEB MAinjs TO Pbbsbrve the Peaob.
[Actio non,] Because he says that the said and one
at the said time, when, etc., at, etc., aforesaid, were fighting together, and
striving with force and arms to beat and wound each other, against the
peace, whereupon the said , being then and there present, for the
preservation of the peace, and that the said and might
do no hurt to each other, and in order to separate and part them, then and
there gently laid his hands upon the said -^ — as he lawfully might
for the cause aforesaid, which are the said assaulting, beating and ill-
treating the said in the said declaration mentioned, and whereof
he, the said , hath above thereof complained against him, the said
. And this he is ready to verify. Wherefore, etc.*
<2) MOLLITKB MaKXJS IMFO^UIT ^ — THE PLAHfTIFF MaDE AN ASSAULT ON A
Thibd Person.
[Actio non,] Because he says that the said , just before the said
time, when, etc., in the complaint mentioned, to wit, on the day and year
mentioned, with force and arms, etc., had made an assault upon one
, and was then and there, and at the said time, when, etc., beating and ill-
treating the said in breach of the peace; wherefore the said —
at the said time, when, etc., to preserve the peace and to part the said
from, and to prevent him from further beating and ill-treating
the said , gently laid his hands upon the eaid as he law-
fully might for the cause aforesaid, which are the same assaulting, beat-
ing and ill-treating the said in the said complaint mentioned,
and whereof the said hath above thereof complained against him,
the said . And this he is ready to verify. Wherefore, etc.*
(8) Correction of an Apprentice for Disobedience.
[Actio non,] Because he says that before and at the said time, when,
etc., in the said complaint mentioned, to wit, at, etc., aforesaid, the said
-^— was the apprentice of the said in his trade and business
of a , and then and there behaved and conducted himself saucily and
•contumaciously towards the said , and then and there refused to
obey his lawful commands relating to his duty as such apprentice as afore-
aaid, whereupon he, the said , then and there moderately cor-
son who acts in his aid, need not. necessary, etc. That is, he, for this
1 Salk., 409; 12 Mod., 890; Com. Dig. purpose, gently laid his hands upon
Pleader, 8 M." him. The lawyers in old times
1 8 Chitty's Pleadings, 18th Am. when the pleadings were in Latin
«d., 1071 (186^. expressed this idea by saying mollis
2 Molliter mantu imposuit^ In ac- ter manus impo9uit Bouvier's Law
tions for trespass to the person the Die., 181.
defendant may justify by pleading '8 Chitty*8 Pleadings, 18th Am*
that he used no more force than was ed., 1071 (1866).
I
424 PLEADING.
rected him, the eaid . for his said misbehavior, which are the said
assaulting, beating and ill-treating the said — in the said complaint
mentioned. And this he is ready to verify, etc.^
(4) Satisfaction.
[Actio non,^ Because he says that after the committing of the said tree*
passes, and before the commencement of this suit, to wit, on, etc., at, eta,
he, the said , paid to the plaintiff the sum of dollars in full sat-
isfaction and discharge of the said trespasses ; and which sum of dollars
the plaintiff then and there accepted and received from the said in
full satisfaction and discharge of the said trespasses; and this the defend-
ant is ready to verify. Wherefore, etc., if, eta*
(5) Satisfaction by One Joint Trespasser.
[Actio non.] Because he says that he, together with the said
[that i«, if is also sued in same suit, but if not, then state, one
— ], at the times of the assaults, trespasses, wrongs and injuries
aforesaid, complained of as aforesaid, at, etc,, did jointly commit the same
on the plaintiff, and afterwards, on, eta, at, eta, the said paid
the said , the plaintiff, the sum of $50, lawful money, in full satis-
faction of all the assaults, trespasses, wrongs and injuries whatever afore-
said, complained of as aforesaid, and of all damages and losses whatever
sustained by the plaintiff, and in full satisfaction of all demands on account
thereof, which said sum the plaintiff then and there did accept and receive
in full satisfaction and discharge of the said assaults, trespasses, wrongs
and injuries whatever, aforesaid, and of all damages and losses so sus-
tained and complained of, and in full of all demands on account thereof;
and thereupon the plaintiff, thereafterwards, the same day, caused the said
to be discharged therefrom ; and the said avers that the
assaults, trespasses, wrongs, injuries, losses and damages, whereof the eaid
complains as aforesaid in his said declaration, and the assaults, tres-
passes, wrongs, injuries, losses and damages, for which the said
gave, and the plaintiff received, the said $50 in satisfaction as aforesaid^
are one and the same, and not different ; and this the said is ready
to verify. Wherefore, eta, if, etc.'
(6) Former Judgment Recovered.
[Actio non,] Because he says that the said heretofore, to wit»
in term, in the year of our Lord one thousand eight hundred and ,
in the court of , at the in the of [state the recovery
particularly], impleaded the said in a certain plea of trespass to
the damage of the said of dollars, for the very same trespasses
and cause of action in the said declaration mentioned, and none other or
different, and such proceedings were thereupon had in the said court in
that plea, that afterwards, to wit, in that same term, the said »
1 8 Chitty*s Pleadings, 18th Am. ^ Yates' Pleadings, 149.
ed., 1072 (1866). » Yates' Pleadings, 149.
PLEADING. 42S
by the consideration and judgment of the said court, recovered in the said)
plea, against the said , dollars, for his damages which he had
sustained, as well on occasion of the very same trespasses and cause of action
in the said declaration mentioned as for the costs and charges by him about
his suit in that behalf expended, whereof the said — was convicted ^
as by the record and proceedings thereof still remaining in the said court
at the in the of more fully and at large appears. Which-
said judgment still remains in full force and effect, not in the least re-
versed, satisfied or made void. And this he is ready to verify by the reo-^
ord. Wherefore, etc., if, etc.^
(7) Release.
[Actio non.'] Because he says that after the commission of the said tres*
passes in the said declaration mentioned, and before the commencement of
this suit, to wit, on, eta [the date of the release\, at, etc., aforesaid, the-
said , by his certain writing of release [aecUed toith his seal], and
now shown to the said court here, the date whereof is the day and year
last aforesaid [or^ if the rdeaee have been lo8t instead of the profert, eay,
which said writing of release having been lost and destroyed by accident^
the said cannot produce the same to the said court here], did re-
mise, release and forever quitclaim unto the said , his heirs, exec-
utors and administrators, the said several trespasses in the said declaration
mentioned, and each and every of them, and all sum and sums of money
then due and owing, or thereafter to become due, together with all and
all manner of action and actions, cause and causes, suits, bills, bonds,
writings obligatory, debts, dues, reckonings, accounts, sum and sums of
money, judgments, executions, extents, quarrels, controversies, trespasses^
damages and demands whatsoever, both at law and in equity, or otherwise
howsoever, which he, the said , then had, or which he should or
might at any time or times thereafter have, claim, allege or demand
against the said for or by reason or means [give the language of
the reJeaae], And this he is ready to verify. Wherefore, etc., if, eta^
(8) Tender of Amends -
[Actio nonJ] Because he says that after the committing of the said several
supposed trespasses in the complaint mentioned, to wit, on, etc., at, etc, ac-
cording to the statute in such case made and provided, he tendered and
offered to pay to the plaintiff the sum of dollars, as amends for th»
1 Yates' Pleadings, 165. injury done, or to pay such unliqui-
2 In many states a tender may be dated damages or demands ; and if
made in these actions. As an illus- suit has been commenced, also the
tration we quote the statute of Illi- costs of suit up to the time of mak-
nois : Section 6. Whoever is guilty ing such tender ; and if it shall ap-
of a trespass or injury, or whoever pear that the sum tendered was-
owes another unliquidated damages sufficient amends for the injury
or demands arising out of a contract, done or to pay the damages, and if
may, at any time before or after suit has been commenced was also
suit is brought, tender what he shall sufficient to pay such costs, the*
conceive sufficient amends for the plaintiff shall not be allowed to re-
-^26 FI^ADINO.
«aid ctuppoeed trespasses, the same then and there being a sofficient amends
for the same ; and also then and there tendered and offered to pay to the
said plaintiffs the further sum of dollars for the costs of this action to
the time aforesaid of making such tender as aforesaid, which said two
:sums of dollars and dollars the plaintiffs then and there refused
to accept and receive from the said and — — , to wit, at the
f>lace aforesaid, in the county aforesaid. And this he is ready to verify,
therefore, eta, if, etc.^
§ 25. The platnttflTs eourse after the defendant has an-
swered.— In all actions of the natare here discassed, the
plaintiif may, where there are two or more defendants, dis-
miss the action, or, as it is called in Bome jorisdicttons, enter
:a nolt^ prosequi as to one or more of the defendants and pro-
<ieed against the others. If the defendants plead severally
the plaintifif may demur to some of the pleaa and join issae
on others, and he may afterwards enter a nolle prosequi on his
<lemurrer and proceed against the other defendants, or if
several issues are joined he may still enter a nolle prosequi to
one or more before or after judgment.' If the defendants
Join in a plea they should not sever in the rejoinder; and they
oannot unite in the latter pleading if they did not concur in
the plea or answer to the declaration or complaint.* The rep-
lication is, in general, governed by the plea, and most fre*
•quently denies it. When the plea concludes to the country,
the plaintiff must, in general, if he desires to join issue upon
it, add the similiter; but when the plea concludes with a ver-
ification, the replication must either —
1. Conclude the defendant by matter of estoppel.
2. Deny the truth of the matter alleged in the plea either
in whole or in part.
3. Confess and avoid the plea.
4. In case the plea is evasive, new assign the cause of ac-
tion.*
In the succeeding section the subject is illustrated by prece-
<lents of the different replications applicable to the form of
action under consideration.
-cover any cost incurred after such ' 1 Chitty*8 Pleadings, 668 ; Ste-
i;ender, but shall be liable to the de- pbens on Pleading, S06.
f endant for his costs incurred after * 1 Chitty's Pleadings, 561 ; Arch,
ithat time. Laws lUinois, 1891, 206. Civ. Pleading, 356; 2 BouTier's Law
I Yates' Pleadings, 156. Die, 450.
MChitty'n Plfadin^s, 568; Tidd,
Practice, 681; 1 Sauad., 235, note.
PLEADING. 427
f 26» Preeedents <tf replications. —
(1) A Gbnbral Rbpugation IJndxb the New Tobk Oqdb.
And the plaintiff denies each and every material allegation in the answer
•contained.!
(3) A Modern English Fobm.
The plaintiff joins issue with the defendant npon the defense herein.'
(8) An American Common-law Form.
And the plaintiff says that he, hy reason of anything in the plea alleged^
ought not to be barred from having his aforesaid action, becaose he says
that the defendant at the time when, etc., in the said declaration men-
tioned, of his own wrong and without the cause by him in his plea men-
tioned, did commit the said several grievances in the said plea mentioned,
in manner and form as the plaintiff has in his said declaration thereof
complained against him. And this he prays may be inquired of by the
<x>untry, etc.*
(4) To Plea of the Statute of Limitationb.
Because he says that the said several causes of action in the said several
oounts of said declaration mentioned, and each of them, did accrue to the
plaintiff within [five] years before the commencement of this suit, in man-
ner and form as the plaintiff hath thereof above complained against the
defendant; and this he prays may be inquired of by the country, etc.^
(5) Defendant Out of the State During Part of the Tdie.
Because he says that the defendant, at the time the said cause of action
accrued, was out of the state of , to wit, at, etc., and there resided
until he afterwards, to wit, on, etc., returned to this state, and that the
plaintiff within the [Jive] years of the residence of the defendant in this
state, after the said causes of action in the said counts mentioned accrued,
commenced his action against the defendant in due manner and form as
aforesaid; and this the plaintiff is ready to verify. Wherefore, etc., if,
etc.*
(6) Reflioation that the Amends Tendered Were Not Sufficient.
Because he says the said sum of $200 in the said plea by the defendant
pleaded in bar, so tendered and offered by him to the plaintiff, as and for
amends for the said several trespasses in the said declaration mentioned,
were not nor are a sufficient amends for the same trespasses, as the said
defendant has in his said plea alleged ; and this the plaintiff prays may
be inquired of by the country, etc.<^
1 Howard, N. T. Ck>de, § 158, p. 270. * Puterbangh's Common Law (IlL),
< Cklgers on L. ft S., 647. 176 (1888).
* Puterbaugh's Common Law (111.), • 9 Wentw., 849, 851 ; Yates* Plead-
488 (1888). ing, 162.
< Puterbaugh's Common Law (111.),
176 (1888).
428
PLEADING.
§ 27. Conclaston.— It is not within the scope of this work
to farther discuss the rules of pleading relating to actions for
malicious prosecution, false imprisonment and the abuse of
legal process in the various courts of the United State&
These rules depend largely upon local statutes, in most in-
stances modifying the rules of the common law, and in some
entirely abolishing them. Seference must therefore be had
to local laws, and to works devoted especially to this subject.
CHAPTER XIL
DEFENSES.
% 1. Defenses — The term defined.
2. The general issue.
8. What can be shown under the plea of the general issuou
4. Joint trespassers may sever in their pleas.
5. Justification — The term defined.
Applications of the law.
(1) Justification under an erroneous judgment
(2) Illegal order of a superior officer, no justification.
(8) Officer justifying puts in issue the title to his offioe.
(4) Justification for an arrest
6. Arrests without process — Justification.
7. Duty of an officer.
6. Waiver — The defense of — The term defined*. '
9. Waiver of the right to sue.
Illustrations of the Jaw.
(1) Waiver of imprisonment
(2) What does not amount to a waiver of an arrest.
(3) Liability of magistrate, etc. — Objections waived.
10. Release — The defense of — The term defined*
11. A release of the right to sue.
Applications of the law.
(1) What is a sufficient release.
(2) Officer neglecting to remove goods attached, locked in a
room with them, cannot complain.
12. The defense of estoppel.
18. A satisfaction is an estoppeL
14. The law stated by Miller, J.
Applications of the law.
(1) Satisfaction from one estops the injured person from suing
others.
(2) Estoppel by false representations.
15. What is a satisfaction.
16. The subject continued.
17. The rule which prevails in a majority of the states.
18. Payment — Settlement— Discharge and satisfaction by one of sev-
eral joint trespassers.
19. The rule in the time of Lord Coke.
20. The subject continued.
Applications of the law.
A release of one is a release of all.
430 DEFENSES.
§ 1 • Defenses — The term defined. — In general practice
the term defense signifies a denial of the truth or validity of
the matters set out in the complaint or declaration as consti.
tuting the plaintifTs cause of action.^ In actions of trespass
for false imprisonment and the like, general defenses may be
divided into several classes, viz. : (1) A general denial of
the matters contained in the complaint. (2) Justification.
(3) Waiver of the imprisonment. (4) Eelease of the right to
sue. (5) Estoppel. (6) Payment by one of several wrong-
doers. (7) Accord and satisfaction.
§ 2. The general denial, commonly so called, is a plea
which denies or traverses at once the whole complaint, with-
out ofiPering any special matter to evade it.
It is called the general issue because, by importing an ab-
solute and general denial of what is alleged in the complaint,
it amounts at once to an issue.^ In the early manner of plead-
ing the general issue was seldom used except where the party
meant wholly to deny the charges alleged against him. When
he intended to excuse or palliate the charge, a special plea
was used to set forth the particular facts.
But now, since special pleading is generally abolished, the
same result is secured by requiring the defendant to file notice
of special matters of defense which he intends to set up
on trial, or obliging him to use a form of answer adapted to
the complaint, the method varying in different systems of
pleading.
In actions for malicious prosecution and false imprisonment
the general issue is, not guilty in manner and form as charged
in the complaint.'
§ 3. What can be shown nnder the plea of the general
issne. — In trespass to the person the defendant can, under
the general issue of not guilty, give in evidence any matter
which directly controverts the fact of his having committed
the acts complained of; as, in trespass for an assault and bat-
tery with a tearing of clothes, a plea of not guilty of the as-
sault mode et forma was held to operate as a denial of the
battery and tearing of the clothes {l(iceravit) as well as the
1 8 Black. Com. , 206 ; Ck). Litt. , 137 ; * Bouvier's Law Die, tit. *'(}eneral
Bouvier's Law Die, 495. Issue."
'2 Black. Com., 805.
DEFBNSBS. 43 ^
assaalty and no person is bound to justify who is not prim<s
fade a trespasser. The plea of not goilty, therefore, is proper
in trespass to persons if the defendant committed no assault,,
battery or imprisonment.^ But where the acts complained of
would at common law prima facie appear to be a trespass^
and the facts stated in the complaint cannot be denied, any
matter of justification or excuse, or if done by virtue of a
warrant or authority, must in general be specially pleaded,,
and therefore such matters of defense cannot be given in evi-
dence under the plea of the general issue.'
§ 4. Joint trespassers may sever in their pleas. — Persons
engaged in committing the same trespass are joint and several
trespassers, and not joint trespassers exclusively. Like per-
sons liable on a joint and several contract, they may all be
sued in one action, or one may be sued alone and cannot plead
the non-joinder or the misjoinder of the others in abatement;
and so far is the doctrine of several liability carried, that the
defendants, when more than one is sued in the same action,
may sever in their pleas, and the jury may find several ver-
dicts, and on several verdicts of guilty may assess different
sums as damages.'
§ 5. Justification — The term defined.— Justification in
legal practice is the allegation of any matter of fact by tho-
defendant to establish his legal right to do the act complained
of by the plaintiff. As a plea in actions for false imprison-
ment it admits the commission of the acts as charged in the
complaint, and alleges a right to commit them by the defend-
ant, in effect denying that the commission of the acts consti-
tutes a wrong. In form it is an excuse, showing some legal
reasons why the defendant should not respond in damages^
for the injury which the plaintiff claims to have suffered from
bis hands. As, where an officer,^ having a warrant regular on
its face and issued by a court of competent jurisdiction, makes
U Chitty's Pleadings, 600; Tidd's E., 16, 16, 17; Stephen on Pleading
Practice, 662. (Ski ed.), 377 ; Tidd's Practice (8d Am.
3 i Chitty's Pleadings, 601 ; Waters ed.), 662 (1840).
V. Silley, 4 Pick. (Mass.), 146 (1827); 'Lovejoy v. Murray, 8 Wall., t
Butter worth ▼. Soper, 18 Johns. (1866).
(N. Y.), 443 (1816); (>>. Litt, 2m>,; 2 * 2 Bouvier's Law Die, 82.
BoU. Abr., 682; Ck>m. Dig., Pleader,
432 DEFENSKS.
4in arrest, the warrant is a complete justification to the offi-
<;er to whom it is directed for obeying its command, whether
it be really valid or void. But where the warrant is absolutely
void, or apparently irregular in an important respect, or where
Jthe act done under it is one which is beyond the power con-
ferred by the warrant, it is no justification.^ When the fact
of the plaintiff's imprisonment is established, the burden of
.proving a justification is on the defendant.^
Applications of the law. —
(1) Justification under erroneous jiulgment
Brown et al, , as trustees of a school district, had obtained a judgment
against Crowl for $8.86 for a school tax. After the judgment Crowl ob-
tained a discharge as an insolvent debtor, exempting his body from im-
prisonment, and subsequent to obtaining such discharge he was called on
hy a constable, who held an execution against him on the judgment, to paj
it. He told the constable he would pay it as soon as he got able. The
constable informed the plaintiffs of the new promise, and they directed
him to obtain a summons and serve it on Crowl. The summons was ob-
tained and served; Crowl appeared and pleaded his insolvent discharge.
Brown appeared in behalf of himself and co-plaintiffs, and insisted that
they were entitled to a general judgment under the new promise, so that
they might have an execution against the body of the defendant. After
the evidence was closed, Brown told the justice that, if it was illegal, he
did not want a judgment or execution against the body of the defendant.
The justice entered a general judgment and issued execution thereon, by
virtue of which Crowl was arrested. For this arrest an action for false
imprisonment was brought by Crowl against Brown and his co-plaintiffs,
Ljon and Howard. On the trial these facts appeared in evidence. Defend-
ants insisted that the justice having jurisdiction to render a general judg-
ment, if such judgment was erroneous, it was not void, and was therefore
a protection to the defendants. A verdict being rendered for the plaintiffs,
the defendant prosecuted a writ of error.
Savage, C. J. : ** The only question is whether the second judgment was
a protection to the parties. It was valid until reversed, although errone-
ous. The justice had jurisdiction of the cause and of the person, and in
admitting or excluding any defense which affected the plaintiffs' remedies
he acted judicially. The defendant before the justice had a perfect rem-
edy either by appeal or by certiorari. The question was agitated and ju-
dicially decided. • . . The liability of the defendant's imprisonment
was the point before the justice. It was judicially decided by him, though
erroneously, but the error should have been corrected, either by appeal or
certiorari, according to the circumstances of the case. I am of opinion^
therefore, that the judgment while unreversed justified the execution, and
1 2 Bouvier*8 Law Die, 38. 418 (1852); Holroyd v. Doncaster, 8
2 Bassett v. Porter, 10 Cush. (Mas&), Bing. , 492.
DEFENSES. 433
tbat no action lies for false imprisonment.*' Brown et al. v. Crow], 6 Wend«
(N. Y.), 298 (1880). Cited in 69 N. Y.. 341; 5 Lans., 108; 24 Hun, 83; 61
How. Pr., 855.
(3) Illegal order of superior officer no Justification.
' In the summer of 1878 Mr. Swart» the plaintiff in error, was in the em-
ploy of the state land department in looking after trespassers on state
lands, and was informed by reports of his predecessor, then on file or of
record in the land office, that a trespass bad been committed by Kimball,
the defendant in error, in the county of Alpena. He went to Alpena,
partly to inquire into this trespass, and while there claims to have obtained
evidence of a further trespass by Kimball, committed more recently. He
went to see Kimball and endeavored to make him settle for the alleged
trespasses, but did not succeed. The accounts given by the.two part'es as to
the interviews between them differ very considerably ; that of Swart only
showing an endeavor in a proper way to obtain a settlement for the timber
cut, while Kimball gave evidence tending to show that he denied having
committed any trespass, and that Swart made threats of criminal prosecu-
tion against him, with the evident purpose to extort money from him
whether innocent or guilty. The attempts at a settlement failed, and
Swart proceeded to institute a prosecution. He went to Lansing, two
hundred and fifty miles or so from the county of the alleged trespass, and
there procured an information to be drawn against Kimball, to which the
land commissioner appended an order to the prosecuting attorney of Ing-
ham county, directing him " to prosecute the foregoing information in the
county of Ingham, and state of Michigan." Kimball was discharged on a
writ of habeas corpus. He then sued Swart for false imprisonment and
recovered |d50. Swart removed the case to the supreme court on error.
In affirming the judgment Cooley, J., said: The justification of Swart
having failed utterly, it remains to be seen whether he was injured by any
rulings of the circuit judge which could affect the amount of the recovery.
There is no room for saying that Swart was protected in what he did be-
cause he acted under the orders of his superior officer. The land commis-
sioner could lawfully give no such orders, and Swart could lawfully obey
none.
The award which the jury made was the very moderate one of $850, and
this gives abundant evidence that the jury viewed the conduct of the de-
fendant in the most favorable light. If, therefore, the evidence was im-
properly received, we should think the case a proper one for applying the
rule that error without injury shall not reverse a judgment Cummings v.
Stone, 18 Mich., 70; Sinclair v. Murphy, 14 Mich., 893: Sherman v. Dai-
ry mple, 19 Mich., 289; Slocomb v. Thatcher, 30 Mich., 53; Hill v. Robin-
son, 38 Mich., 34. But my brethren all think the evidence was competent.
The judgment will be affirmed. Swart v. Kimball, 48 Mich., 443; 5 N, W.
Rep., 871.
(8) An officer tcho Justifies puis in issue the title to his office*
J. D. Teague was a trial justice in Maine. After his commission had
-expired, but not being aware of this fact, he issued a warrant upon a
28
434 DEFENSES.
proper complaint against Michael Grace, who was arreatedy and brovghl
before him for trial, fonnd guilty and required to paj a fine and costs.
Grace then sued Teagne for a false arrest. On the trial it was agreed that
if defendant was liable, it being conceded he acted in good faith, damages^
not to exceed $36, mighf be assessed. The presiding justice gave judgment
for plaintiff, and assessed the damages at $36. Defendant excepted and
moTed for a new trial.
Libbey, J. : The law is well settled that when an officer sets up his title
to an office in defense of an action against him for his acts, he puts in issue
his title to the office ; and, to justify, must show that he has a legal title.
It is not sufficient for him to show that he is exercising the duties of the
office as an officer de facto. The ruling of the court below on this point
is correct. Pooler t. Beed, 78 Me., 129; Andrews ▼. Portland, 70 Ma, 488;
10 Atl. Rep., 458, and cases there cited.
Exceptions and motion overruled. Grace v. Teague, 81 Me., 659; 18 AtL
Bep., 289 (1889).
(4) Justification for arrest
A private individual may arrest a person guilty of crime when it is neor
essary to prevent the escape of the accused, and have him taken before the
proper officer for examination. But such a person cannot justify such
arrest upon the ground of a suspicion of guilt only — guilt in such a case
must be shown. It is otherwise with a peace officer authorized to make
arrests, as he may arrest without a warrant where all the facts show that
there was strong probable cause to believe that the accused was guilty.
When a number of persons suspect a person of being guilty of crime, and
induce a peace officer to make an [arrest without a warrant, they cannot
justify their action by showing probable cause to believe him guilty ; to do
so they must show guiic. In such a case the officer would, it seems, be jnsti*
fled. When a crime has been committed, and the party arrested is guilty,
and private individuals induce a peace officer to make the arrest, they, as
well as the officer, will be justified by showing the guilt. Dodds et aL ▼•
Board, 43 Bl., 95 (1867).
§ 6. Arrests without process — Justtflcatton. — If an ar-
rest is made without process, in order to justify the act it must
be shown that an ofifense punishable criminally had been com-
mitted, and that the defendant had reasonable ground to sus-
pect the plaintiff guilty of the same,^ or either that there was
a breach of the peace at the time or had been one, and there
was danger of its renewal.* An officer may lawfully enter a
house to quell a breach of the peace, and may arrest and de-
tain for a reasonable time any person engaged in the affray or
iHogg V. Ward, 8 H. & N., 417; « Wooding v. Oxley, 9 0. & P., 1;
Allen V. Wright, 8 C. & P., 522; Grant v. Mosier, 5 M. & Gr., 133;
Boylston v. Kerr, 2 Daly, 220 (1867) ; Price v. Seeley, 10 CL & Fin., 28.
6 Wait's Act. & Def., 117.
DEFENSES. 435
in oommitting an assault therein, but he cannot do so after
the disturbance has wholly ceased.^
§ 7. Duty of an officer. — An oflBcer cannot justify an ar-
rest made without a warrant when he arbitrarily detains the
prisoner in custody instead of taking him immediately before
a magistrate as required by law.^ If the defendant seeks to
justify an arrest made without process on the ground of sus-
picion, he must state in his plea what offense had been com-
mitted, and set forth the facts which caused the suspicion ; '
and where the arrest was made to preserve the peace, he must
set out the circumstances which he claimed to have justified
the course pursued by him.*
§8. Waiver — The defense of— The term defined.— A
waiver is the act of relinquishing or refusing to accept a right*
In practice it is required of every one to take advantage of
his rights at a proper time; and neglecting to do so will be
considered a waiver. If, for example, a defendant who has
been named in a writ and declaration pleads over, he cannot
afterwards take advantage of the error by pleading in abate-
ment, for his plea to the merits amounts to a waiver.*
§ 9. Waiver of the right to sue. — That the right to bring
an action of trespass for false imprisonment or an action of
case for a malicious prosecution may be waived there can be
no question, but the law will presume nothing in favor of the
surrender of the right to redress the wrongs in question ; the
burden of showing the waiver rests upon the party asserting
it. The matters relied upon as constituting the waiver must
show clearly the intention of the party to waive his rights, so
as to warrant a jury in finding that there was such a waiver
as clearly amounts to a release of all damages occasioned by
the wrongful acts complained of.*
iPreU T. McDonald, 7 Kans., 426; « Grant ▼. Moser, 5 M. & Gr., 128;
12 Am. Eep., 423 (1871); 1 Hale's P. Wheeler v. Whiting, 9 Q & P., 262;
C, 587. Bayner v. Brewster, 1 Gale & D.,
'Green v. Kennedy, 40 Barb. 669.
(N . Y.), 16 (1866) ; Brook v. Stinson, » 2 Bouvier's Law Dictionary, 796.
108 Mass., 520; 11 Am. Rep., 890 < Joyce ▼. Parkhurst, 150 Mass.,
(1871). 248 ; 22 N. W. Rep., 899 (1889) ; Caff-
' Brown ▼. Chadsey, 89 Barb, rey v. Drugan, 144 Mass., 294 ; 11 N.
(N. Y.), 253 (1863); 6 Wait's Act. & K Rep.. 96 (1887); Nowak ▼. WaUer,
Def., 118. 10 N. Y. Sup., 199 (1889).
436 DEFBKSB8,
ApPLICATIOUrS OF THB LAW. —
(1) Waiver of imprisonment
The plain tifT was arrested for being drunk and dieorderlj. He was too
drunk to be tried on the day of his arrest. When sober, he begged the
officer to let him off, which was done. He then brought a suit against the
officer for false impiisonment. On the trial he was defeated.
On exceptions in the supreme judicial court, Morton, C. J., said: "The
jury found that the plaintiff, when aiTested, was in a state of intoxica*
tion, committing a breach of the peace or disturbing others by noise. His
arrest, therefore, was legal. But he contends that the failure of the officer
to make a complaint against him for drunkenness on the next morning
makes the officer liable in this action. The object of the provision (Stat.
Mass. 1883, ch. 207, § 25) requiring the officer to make a complaint is the
protection of those arrested without warrant, by insuring that they shall
be promptly brought before a court ; and it has been repeatedly held that
a party thus arrested may waive this provision, and that if he requests bis
discharge, with the understanding that he is to release any damages to
which he might otherwise be entitled by reason of the failure of the officer
to make a complaint, he cannot afterwards hold the officer responsible.
Citing Caffrey ▼. Drugan, 144 Mass., 294; 11 N. £. Rep., 96. The evidence
tended to show that on the morning after the arrest the defendant was
about to take the plaintiff before the district court to make complaint
against him; that the plaintiff asked him '*notto do it, but to let him
go;" and further said that *' he had nine children, and did not want de-
fendant to take him before the court, but wanted to go home and take care
of his family ; " and that thereupon the defendant let him go. Such a re-
quest shows the intention of the plaintiff to waive his rights, and fairly
implies an understanding that he shall not hold the defendant responsible
for granting the request, and would warrant the jury in finding that there
was a release of damages by the plaintiff on account of the failure by the
officer to take him before the court and make complaint. The plaintiff has
no ground to complain. Joyce ▼. Parkhurst, 150 Mass., 243; 22 N. E.
Sep., 899(1889>
(2) What does not amount to a waiver of arrest
The attorney for the Akron Sewer Pipe Company procured the arrest of
John Carleton on the ground that he had been duly notified to appear be-
fore a master in chancery for examination concerning his personal effects
and bad refused and neglected to appear. Carlton recognized iox his ap-
pearance in the usual form, and after examination, having performed all
the conditions of his recognizance, took the oath for the relief of poor debt-
ors, and was discharged. Before discovering that the proceedings were
irregular and his arrest illegal, he brought an action against the company
for false imprisonment, the verdict being for the defendant. On a mo-
tion for a new trial in the supreme court, Soule, J., said: "It is argued,
however, that the conduct of the plaintiff in recognizing with surety be-
fore the magistrate, and submitting to examination on his appllcatioa
DEFENSES. 437
to take the oath for the relief of poor creditors, and taking that oath
amounted to a waiver of the false imprisonment. This is not so. While
it is true that the plaintiff miist he presumed to know the law. and to know
that his arrest was unlawful, and that he was not hound to submit to any
examination under it in order to be entitled to a discbarge, the fact that
he did these things is in no way an indication of any surrender of his right
to redress for tlie wrong done to him by the false imprisonment. Carletoa
V. The Akron Sewer Pipe Co., 129 Mass., 40 (1880).
(8) Falae imprisonment — Who liable — Complaint — Liability of magiS'
trate — Opinion of magistrate — Objections waived.
Action for false imprisonment, brought by Anton Nowak against George
F. Waller, George W. Jeffrey and Egbert Benjamip. Defendant Waller
was a justice of the peace ; the defendant Jeffr ey an overseer of the poor ;
and defendant Benjamin a constable. The court dismissed the complaint
as against all defendan to. Plaintiff appealed.
Pratt, J. : Defendant Jeffrey went before the magistrate. Waller, and
made a statement of what he regarded as constituting a criminal charge.
It does not appear that he made any false statement, or that he entertained
any malice against the plaintiff, or that he asked that a warrant should
issue, or that he gave any direction or took any part in its service. These
facts did not make him liable to an action for false imprisonment. The
justice was authorized by law to receive an information or complaint, and
issue a warrant in such a case ; and it is not material whether the facts
sworn to were in law sufficient to establish the crime attempted to be
charged. We conclude, therefore, that defendant Jeffrey was not liable,
and that the warrant was a protection to the constable, Benjamin.
The question as to defendant Waller requires a short statement in ex-
planation of the decision to which we have arrived. The justice had juris-
diction of the subject- flatter presented to him. to wit, the arrest of per-
sons charged with a violation of the excise laws. When the matter was
presetted to him he was required to decide what was his duty respecting
H. The general rule is that where a judge, who has jurisdiction of the
subject-matter, errs in his judgment as to whether the facts presented do
or do not oonfer jurisdiction, he is not liable to an action of false impris-
onment by a person arrested through an error of judgment. Ayers v. Rus-
sell, 8 N. Y., 835. The justice here simply made a mistake in failing to
take an examination of the complainant and the witnesses, and reducing
the same to writing, as required by the code of criminal procedure (section
148). The test seems to be that there is no liability to civil action if the
act was done "in a matter within his jurisdiction.*' The case of People v.
Nowak, 6 N. Y., 240, is cited by appellant as authority for reversing this
judgment. In that case it was held simply that the affidavit was not suffi-
cient to authorize the issuance of the warrant.
It is enough to protect both Benjamin and Jeffrey that the justice so
held. Lewis v. Rose, 6 Iaus., 209; Gardner ▼. Bain, 5 Lans., 25'7. It was
no part of the duty of either of these defendants to examine the record
made by the magistrate, and it was impracticable for them to do so. The
warrant was regular upon its face. The mistake in the date injured no
438 DEFENSES.
one. If a wrong direction was given by the magistrate as to its return
and the production of the prisoner, it was not obeyed, as the constable
made an amicable arrangement with the prisoner that he should appear
upon the 2l8t of September before the justice, and was thereupon paroled.
A party cannot, for his own benefit, make a stipulation to appear at a
future day for his own convenience, and receive a parol, and then com-
plain that he was not immediately taken before a magistrate. Judgment
affirmed. Nowak v. Waller, 56 Hun, 647; 10 N. T. Sup., 199 (1889).
§ 10. Release — The defense of— The term defined. — A
release is the act of giving ap or abandoning a claim or right to
tiie person against whom the claim exists or the right is to be
exercised or enforced. In the sense used here it signifies the
giving up, discharging or abandoning a right of action. It
may be either express, as where the release is directly made
in terms, by deed or other suitable means, or implied, -where
it arises from the acts of the party .^
§ 11. A release of the right to sne. — There can be no
question as to the right of a party to release his right of action
in all cases, and where an agreement is made by the parties
that no further proceedings are to be had in the matter, the
party injured cannot afterwards maintain a suit A plea of
the release is a good plea to such an action.'
Applications of thb law. —
(1) What ia a sufficient release of tJie right to sue for false imprisonment,
Charles N. Phillips brought an action against Thomas Fadden, a consta-
ble, for false imprisonment Fadden, the defendant, arrested' the plaintiff
without a warrrant for being intoxicated in a public place. While the
officer was taking him to the lock-up the plaintiff asked to be let off, .and
promised if released he would go home peaceably and would not drink any
more; the officer consented and suffered him to go at large, and did not in
fact afterwards take him into custody upon this charge, or make a com-
plaint against him, or take him before the court, as required by the statute
in such cases. There was also evidence tending to show that the defendant*
when he released the plaintiff, told him to be on hand (o go to court the
next morning; that the defendant wrote to the clerk of the district court,
who lived in an adjoining town, for a warrant, but was told by the clerk
that he had no blank warrants with him, and came away without procur-
ing a warrant ; and that he did not take any further steps in the matter.
On the trial the court instructed the jury on the question of release as fol-
lows: After an officer has, without a warrant, once arrested a person for
1 2 Bouvier's Law Dictionary, 530. ^ Phillips v. Fadden, 125 Mass., 198
(1878).
DEFENSES. 439
being intoxioated in a public place, he ia bound to carry him before a proper
court ; and if he fails to do so he is liable, unless it is shown that^ the per-
son arrested requested or consented to the discharge ; and in order to re-
lease the officer from liability upon this ground, the jury must be satisfied
that it was understood and agreed between the parties at the time that no
further proceedings were to be taken in the matter. The jury found for
the plaintiff in the sum of $50. On exceptions it was held that the defend-
ant had no reason to complain of the instruction, and the judgment was
affirmed. Phillips v. Fadden, 125 Mass., 198 (1878).
{2) Officer neglecting to remove goods attached, locked up with them, eafi-
not complaim
An officer after attaching in a broker's office the desk and law books of
an attorney, not more than one hundred dollars in value, and placing a
keeper over them, neglected to remove them during nearly five hours of day«
light, and then, after demanding of the attorney and of the broker, and be-
ing refused, a key to the lock on the door of the office, for the purpose of
continuing his possession, obtained one from a blacksmith. It being then
near sunset, the broker put another lock on the door, and after giving the
officer notice to remove the attached, chattels immediately, and leave the
office and receiving a reply that he could not remove them that night for
want of means to transport or a place to store them, but would do so early
in the morning, proceeded to secure the door for the night, locking in the
officer and the keeper, where they remained until about nine o'clock next
morning. In the supreme judicial court on exceptions it was held that the
officer delayed for an unreasonable time to remove the chattels; that he
abused his authority and became a trespasser ; that he could not maintain
an action against the broker for false imprisonment. Williams v. Powell,
101 Mass., 467 (1869). Citing Rowley v. Rice, 11 Met., 837; Spoor ▼•
Spooner, 12 Met, 285; Pratt v. Farror, 10 Allen, 521; Malcolm ▼. Spoor, 19
Met 279.
§ 12. The defense by estoppel.— An estoppel is defined to
be the preclusion of a person from asserting a fact by previous
conduct inconsistent therewith, on his own part, or the part
of those under whom he claims, or by an adjudication upon
his rights which he cannot be allowed to call in question ; a
preclusion in law, which prevents a party from alleging or
denying a fact, in consequence of his own previous act, allega-
tion or denial of a contrary tenor.^
§ 13. A satisfaction is an estoppel. — A tort committed by
several persons is in the United States regarded in law as
joint and several. The remedy is by suit against each of the
wrong-doers separately, or against all of them jointly ; ' and
1 1 Bouvier*8 Law Dictionary, 607 ; ' Semions v. Johnson, 95 U. 8., 847
Stephen on Pleading, 289. (1877) ; Stone v. Dickinson, 5 Allen
440 DEFENSES.
hence a recovery of jndgment against one will not estop an-
other to deny the cause of action against him ; * but if the judg-
ment against one is satisfied, then it becomes a satisfactioD
of the original cause of action in favor of all, and the doctrine
of estoppel applies; and the same is true of a pro tanto or
partial satisfaction.' A judgment recovered in any form of
action is still but a security for the original cause of action,
until it be made productive in satisfaction to the party, and,
therefore, until then, it cannot operate to change any other
collateral concurrent remedy which the party may have.* He
may bring separate suits against the wrong-doer, and proceed
to judgment in each, and no bar arises as to any of them
until satisfaction is received.*
§ 14. The law stated by Miller^ J. — "No matter how
many judgments may be obtained for the same trespass, or
what the varying amounts of those judgments, the acceptance
of satisfaction of any one of them by the plaintiff is a satis-
faction of all the actions, except the costs, and is a bar to any
other action for the same cause."*
Applioation op the law. —
(1) Satisfaction received from one joint treMpasser estops the injured person
from suing others,
Henry D. Stone sued WiUiam Dickinson to recover damages for false im-
prisonment. On the trial it appeared that on the 7th of June, 1858, the
(Mass.), 29 (1862); Lovejoy ▼. Mur- (N. T.). 290 (1806); EUiott ▼. Porter,
ray, 8 WaU., 1 (1865); Brown v. 5 Dana (Ky.). 299(1837); United So-
Oambridge, 8 Allen (Mass.), 874 ciety v. Underwood, 11 Bash (Ky.),
(1862); Sheldon ▼. Kibbe, 8 Ck>nn., 265 (1875); EUiott ▼. Hayden, 104
214(1819); Knott v. Cunningham, 2 Mass., 180(1870); Knight ▼. Nel80Zi»
Sneed, 210 ( )\ United Society v. 117 Mass., 458 (1876); Griffie ▼. Mo-
Underwood. 11 Bush (Ky.), 265 Clung, 6 W. Va., 181 (1872): Morgan
(1875); Morgan ▼. Chester, 4 Conn., v. Chester, 4 Conn., 887 (1822); Ayer
887(1822). ▼. Ashmead, 81 Conn., 447 a868);
1 Bigelow on Estoppel, 71 (1882). McQee v. Shafer, 15 Tex., 198 (1855);
3 Stone V. Dickinson, 6 AUen Turner v. Hitchcock, 20 Iowa, 810
(Mass.), 29 (1862); United Society v. (1866); Stewart ▼. Martin, 16 Vt.,
Underwood, 11 Bush (Ky.), 265 897 (1844); Sanderson v. Caldwell, S
(1875); Herman on Estoppel, 101 Aik.. 195 (1827).
(1871). » Lovejoy v. Murray, 8 WalL
•Drake v. Mitchell. 3 East, 258; (U.S.), 1 (1865); Vigent v. Scully, 85
Lovejoy v. Murray, 8 Wall., 1 (1965). Ill App., 44 (1889).
4 Livingston v. Bishop, 1 Johns.
DEFENSES. 4:41
plaintiff was arrested by the same offioer on nine different vrrits in favor
of different creditors, one of which was in favor of the defendant, which
were all served at the same time, by arresting the plaintiff and commit-
tin/z: him to jail, where he was held in confinement upon them all till the-
10th of February, 1860, at whioh time he obtained a discharge on habeas
corpus on account of defects in the affidavits upon the writ Stone v.
Carter, 13 Qray, 575. The defendant offered to prove that the plaintiff
in several of the said actions had, since the date of the discharge of the
plaintiff from jail, given up to him their notes upon which their suits were
brought, and in consideration thereof the plaintiff discharged them " from
all claim and demand for false imprisonment by reason of the arrest of June
7, 1858," for which suits were pending against them, respectively. The
judge excluded the evidence.
The jury returned a verdict for the plaintiff, and the defendant alleged
exceptions.
In discussing the exceptions, Bigelow, C. J., said: Several questions
were raised at the tried of this case, upon whioh it seems to be unnecessary
to express an opinion, inasmuch as we are satisfied that, on the facts of-
fered to be proved, the defendant established a good defensre to the action,
and that the jury should have been instructed accordingly. There can be
no doubt of the rule of law that co-trespassers are jointly as well as sev-
erally liable for the damages occasioned by their wrongful acts ; and, as a
consequence of this, that a release to one joint trespasser, or satisfaction
from him for the injury, discharges all. Brown v. Cambridge, 8 Allen,
474. and cases cited. This principle is applicable to the case at bar. In the
opinion of the court, the several persons on whose writs and by whose
order the plaintiff was committed to jail, and held in confinement from
June, 1858, to February, 1860, must be regarded in law as co-trespassers.
Evidence was offered at the trial to prove that he had received satisfaction
from some of them for his alleged wrongs, and had given to them in writ-
ing a discharge for the damages he had suffered by reason of his arrest
and false imprisonment. This satisfaction and discharge in legal effect
operate as a release of the present cause of action against the defendant.
It cannot be denied that the parties who were plaintiffs in the original
action, in suing out their writs against the present plaintiff, and causing
him to be arrested and imprisoned, acted separately and independently of
each other, and without any apparent concert among themselves. As a
matter of first impression, it might seem that the legal inference from this
fact is, that the plaintiff might hold each of them liable for his tortious act,
but that they could not be regarded as co-trespassers, in the absence of
proof of any intention to act together, or of knowledge that they were en-
gaged in a common enterprise or undertaking. But a careful considera-
tion of the nature of the action, and of the injury done to the plaintiff for
which he seeks redress in damages, will disclose the fallacy of this view of
the case. The plaintiff alleges in his declaration that he has been unlawfully
arrested and imprisoned. This is the wrong which constitutes the gist of
the action, and for which he is entitled to sn indemnity. But it is only
one wrong, for which in law he can receive but one compensation. He
has not in fact suffered nine separate arrests or undergone nine separate
442 DEFENSES.
temis of imprisonment The writs against him were all served simnlta-
neoiisl J by the same officer, actinfi^ for all the creditors, and the confine-
ment was enforced by the jailer on all the prbcesses contemporaneously
during the entire period of his imprisonment. The alleged trespasses od
the person of the plaintiff were therefore simultaneous and contempora-
neous acts committed on him by the same person acting at the same time
for each and all of the'plaintiffs in the nine writs upon which he was ar-
rested and imprisoned. It is then the com i nun case of a wrongful and
unlawful act, committed by a common agent acting for severed and dis-
tinct principals. It does not in any way change or affect the injury done
to the plaintiff, or enhance in any degree the damage which he has suffered^
that the immediate trespassers, by whom the tortious act was done, were
the agents of several different plaintiffs, who, without preconcert, had
sued out separate writs against him. The measure of his indemnity can'
not be made to depend on the number of principals who employed the
officers to arrest and imprison him. We know of no rule of law by which
a single act of trespass committed by an agent can be multiplied by the
number of principals who procured it to be done, so as to entitle the party
injured to a compensation graduated, not according to the damages act-
ually sustained, but by the number of persons through whose instru-
mentality the injury was inflicted.
The error of the plaintiff consisted in supposing that the several parties
who sued out writs against him and caused him to be arrested and impris-
oned cannot be regarded as co-trespassers, because it does not appear that
they acted in concert or knowingly employed a common agent. Such pre-
concert or knowledge is not essential to the commission of a joint trespass.
It is the fact that they all united in the wrongful act, or set on foot or put
in motion the agency by which it was committed, that renders them jointly
liable to the person injured. Whether the act was done by the procure-
ment of one person or of many, and, if by many, whether they acted with
a common purpose and design in which they all shared, or from separate
and distinct motives, and without any knowledge of the intentions of each
other, the nature of the injury is not in any degree changed, or the dam-
ages increased which the party injured has a right to recover. He may,
it is true, have a good cause of action against several persons for the same
wrongful act, and a right to recover damages against each and all therefor,
with a privilege of electing to take his satisfaction de meliaribus damnis.
But there is no rule of law by which he can claim to convert a joint into a
several trespass, or to recover more than one satisfaction for his damages,
when it appears that he has suffered the consequences of a single tortious
act only. Take an illustration. Suppose that several persons have a grudge
or spite against the same individual, but that neither of them is aware of
the existence of this feeling in the others, and that each of them, for the
purpose of gratifying his malice, without concert or co-operation with any
one, and in ignorance of a similar intent on the part of others, employs the
eame person — a hired pugilist or bully — to inflict on the common object
of their ill-will a severe personal castigation. In such a case no one would
doubt that all the persons who incited to the commission of the assault and
battery would be regarded as co-trespassers. They, each and all, would be
DEFENSES. 443
responsible for procuring the act to be done. They would be severally
as well as jointly liable to an action in favor of the party injured. But
no one would contend that he could recover satisfaction from each of
the persons liable to an action. When the damages suffered by him had
been once paid by any one of those who procured the commission of the
trespass, he could not claim to recover them again from each of the others.
The law will not permit a party to receive anything more than a compen*
sation for an injury. Where there has beep only one wrongful act, there
can be but one full and complete indemnity. When that is obtained, the
party injured has exhausted his remedy.
Another illustration, more analogous to the case at bar, will serve to
shew the soundness of this conclusion. If, instead of the arrest and im-
prisonment of which the plaintiff complains, the nine writs against him
had been served simultaneously by the same officer, by making an attach-
ment of personal property belonging to him — his horse, for example — in
such case it could not be doubted that, if for any reason, the attachments
were irregular and void, the plaintiff would be entitled to recover and to
receive from one or all of the parties by whose order the attachments were
made the full value of the horse. But it is equally clear that he could not
rightfully claim to receive this sum in damages from each of them, or nine
times the value of the animal. And yet such would be the result, if the
attaching creditors are not to be regarded as co-trespassers. Nor is this the
only absurd result which would follow from such a doctrine. If each at*
tachment or each arrest and imprisonment on the several writs is to be
deemed as a distinct trespass, for which the creditors are separately and
not jointly liable in like manner as if made on one writ only, without any
reference to those which were served simultaneously, we can see no rea-
son why the officer might not be held liable to pay to the plaintiff damages
as many times as there were writs served by him. He certainly must be
regarded as a joint trespasser with each creditor whose writ he served ; and
if the service of each writ constituted a distinct trespass, for which the
party injured might receive separate damages from each creditor, then the
officer would also be subject to a like liability.
These views have led us to the conclusion that the evidence offered at
the trial by the defendant to show that the plaintiff had received full sat-
isfaction for the arrest and false imprisonment to which he had been sub.
jected, and for which he claimed damages in this action, from some of bis
creditors by whose order he was committed to jail, ought to have been ad-
mitted, and that the jury should thereupon have been instructed that the
plaintiff could not maintain this action. Exceptions sustained. Stone ▼•
Dickinson, 5 Allen (87 Mass.), 29 (1862). j
Estoppel — False representations of plaintiff.
If an officer, after attaching property on a writ which may be served
either by attachment of property or arrest of the person, is induced to
abandon the attachment by false representations of the defendant that the
property is not his, and thereupon to make service by arrest, such repre-
sentations estop the defendant, in a subsequent action by him against the
officer for false imprisonment, to say that his property was attached ; and
444 DEFENSES.
it 18 immaterial that the property remained in the custody of the officer at
the time of the arrest, if he surrendered possession of it within a reasonable
time. Ladrick ▼. Briggs, 105 Mass., 508 (1870).
§ 1 5. What Is a satisfaction. — We have seen that the recov-
ery of a judgment is bat a security for the original cause of ac-
tion. It does not operate as an estoppel until it is in some legal
manner satisfied. As to just what is a sufficient satisfaction
the authorities in the United States are not quite uniform. In
Connecticut it has been held that an unsatisfied judgment on
which execution against the defendant's body has been issued
and by virtue of which he has been imprisoned is no bar to
an action against other persons liable for the same trespass.^
The same rule seems to prevail in England.' And not-
withstanding the defendant's imprisonment, until a payment
or discharge of the execution, the original cause of action ex-
ists unimpaired.'
§ 16. What is a satisraction^ etc. — The subject contin-
ned. — As the plaintiff can enforce only one satisfaction for
the same injury, where there are several judgments he must
of necessity elect against whom he will proceed to execution
for the satisfaction of his damages. Such election, followed by
actual satisfaction of the particular judgment, will preclude the
plaintiff from proceeding against either of the other defendants
upon the judgments recovered against them except for the
costs.^
1 Sheldon v. Eibbe, 3 Conn., 222 arrest and imprisonment. AHen ▼•
(1819); Morgan v. Chester, 4 Conn., Craig, 2 Green (N. J.), 102. In this
886 (1822). case it appeared that the plaintiff in«
' Drake v. MitcheU, 8 East, 258 ; structed the sheriff to discharge the
McDonald t. Bovington, 4 T. R., defendant out of custody and let
825; Blumfield's Case, 5 Coke, 87. him goat large on his payment of
'Sheldon ▼., Eibbe, 8 Conn., 214 $30. The defendant paid the amount
(1819); Morgan v. Chester, 4 Conn., to the sheriff, who discharged him
388 (1822). It was held in New from custody and handed the money
Jersey under a judgment in trespass over to the plaintiff. Then a co-
against several defendants, if one is defendant, who was in custody also,
arrested on a ca, sa, and discharged moved to have satisfaction of the
by the plaintiff, or by his counsel, judgment entered of record and to
the court will discharge the other bedischargpdoutof custody himself,
defendants from custody, and order when the order above referred to
satisfaction to be entered on the was made,
record upon their stipulating to * Cooiey on Torts. 139 (1879).
bring no action on account of their
DEFENSES. 445
In some states it is held that where execution is taken out
on one judgment the plaintiff has thereby made his final elec-
tion. Hence a final judgment and execution or an order for
an execution against one of several Joint trespassers is a dis-
cTiarge of all the others.^
§ 1 7. Tlie rnle which preyails In a majority of the states. —
The defendant's liability must remain, in morals and on prin-
<;iple, until he has discharged himself from the obligation
which the law imposes upon him, to make compensation. A
judgment against his co-trespasser does not affect him so as to
release him on any equitable consideration. But where the
plaintiff has accepted satisfaction in full for the injury done
him, from whatever source it may come, he is so far affected
in equity and good conscience that the law will not permit
him to recover again for the same damages. It is not easy to
see how he is so affected until he has received full satisfaction
or that which the law must consider as such; hence nothing
short of satisfaction or its equivalent can make good a plea
of the former judgment in trespass offered as a bar in an action
against joint trespassers, or offered as a bar against another
joint trespasser who was not a party to the first judgment.*
§ 18. Payment, settlement^ discharge and satisfaction by
one of several joint trespassers. — The rule stated by Hin-
man, C. J.: ^^ It is the settled law that a release, discharge or
satisfaction of one or more of several joint trespassers is a
discharge of them all, in the same manner that a discharge of
one of several joint debtors, or a payment and satisfaction of
the joint debt by one, is a satisfaction as to all, since a party
injured by a trespass committed by several can have but one
satisfaction for his injury, no more than one who has a debt
against several can be entitled to be more than once paid.'' '
iFlemiDg v. McDonald, 50 Ind., meath, 81 Conn., 453 (1868). Citing
278 (1875); White v. Philbrick, 5 Cocke v. Jennor, Hob., 66; Living-
He., 147 (1827); Blaine v. Crocberon, ston v. Bishop, 1 Johns. (N. Y.), 290;
20 Ala., 820 (1852); Page v. Freeman, Brown v. Marsh, 7 Vt., 820 (1885);
19 Mo., 421 (1854) ;Boardman V.Acer, Sheldon v. Eabbe, 8 Conn., 214
18 Mich., 77 (1865). (1819); Knickerbocker v. Colver, 8
2Lovejoy v. Murray, 2 Cliff., 191; Cow. (N. Y.). Ill (1828); Lewis ▼•
8 Wall. (IJ. a), 1 (1865); Coolej on Jones. 4 B. & Q, 506; Bird T. Baxi-
Torts, 189. dall, 8 Burr., 1845.
<Hinman, J., in Ayer v. Ash-
446 DRFEN8BS.
•
§ 1 9. The rnle'ln tbe time of Lord Coke. — ^^AIso if two men
doe a trespass to another, who releases to one of them all ac-
tions personalis, and notwithstanding sutch an action of tres-
passe against the other, the defendant may wel shew that the
trespasse was done by him and by another, his fellow, and
that the plaintife, by his deed (which he sheweth forth), re-
leased to his fellow all actions personalis, and demanded the
judgment, &c., and ye sade deed belongeth to his fellow and
not to him. But because hee may have advantage by the
deed, if hee will shew the deed to the court hee may wel
plead this." *
§ 20. The subject continued. — If divers persons commit a
trespass, though this be joint and several at the election of him
to whom the wrong is done, yet if he releases one of them, all are
discharged, because his own deed should be taken most strongly
against himself. Also such release is a satisfaction in law,
which is equal to a satisfaction in fact.' A release of one of
«
several joint tort-feasors is equivalent to a satisfaction, and
inures to tbe benefit of all.' And this has been the set-
tled rule of law since the days of Coke and Bacon. Although
it was the intention of both parties that the discharge should
affect only the cause of action against the defendant, and that
it should not affect the plaintiff's right of recovery against
the other defendants, it will yet operate as a discharge of the
entire cause of action against all. There can be no recovery
against the other defendants, either of nominal damages or-
of costs.*
Application of the law. —
A release for one is a release for alU
Ayer brought an action of trespass against Ashmead. The defendant
pleaded the general issue and two special pleas in bar, one of which alleged
that the trespass was commited by him, if at all, jointly with John F.
Gruniley, and that it had since been agreed between the plaintiff and said
Grumley that the former should pay and the latter receive $3.50 in full
satisfaction and discharge of the trespass and of all damages and coats
therefor, and that the money was therefore paid and received for that pur-
pose. The other plea alleged that the plaintiff had executed a release dis-
charging Grumley and the defendant from all damages on account of the
1 Coke on Littleton, 232. * Ayer v. Ashmead, 31 Ck>nn«, 447
2 5 Bacon^s Abridgment, 702. (1863).
« Brown v. Marsh, 7 Vt., 320 ll835).
DEFENSES. 447
trespass. On the trial the defendant admitted the commission of the tres-
pass complained of, but claimed and offered evidence to prove that it was
a joint trespass committed by him and Gniniley, and offered in evidence
the following written instrument admitted to have been signed by the
plaintiff, but without seal :
" Received by John F. Grumley, November 6, 1860, $3.50, in full of
damages and costs in a case of trespass by the said Grumley on my land,
October 81, 1860. E. Ayer." With it he offered evidence to prove that
after the commission of the trespass the plaintiff commenced this action
against him, and also another action for the SAtne trespass against Grum-
ley, returnable at the same time, and that during the pendency of both
suits and before the trial of either of them, the plaintiff and Grumley
agreed to settle the suit between them by his paying the $8.60, which he
did, taking the receipt aforesaid, and the suit was withdrawn. It was ad-
mitted that the settlement did not include and waA not understood or in-
tended to include the suit against Ashmead, and that the sum paid was not
paid or intended or understood to be paid on account of the damages or
costs claimed in the suit against Ashmead, and that the release was not
given or received for the purpose of discharging or in any way affecting
the suit against Ashmead or the plaintiff's right of recovery in it, but for
the sole purpose of discharging Grumley alone, and that it was expressly
understood between Ayer and Grumley that the suit against Ashmead
should go on as if the settlement had not been made.
The plaintiff objected to the admission of the instrument on the ground
that it was not under seal, and therefore, as he claimed, could not operate
as a release, but the court overruled the objection and admitted it.
The defendant requested the court to charge the jury that if they should
find that the trespass complained of in this suit and that complained of
in the suit against Grumley were one and the same joint trespass commit-
ted by this defendant and Grumley together, and that the plaintiff had ac-
cepted and received from Grumley $3.50 in satisfaction for the damages
claimed of him in the suit against him and the costs of that suit, such pay-
ment and acceptance would operate in law as a full satisfaction for such
trespass and a bar to the plaintifTs recovery in this suit, and their verdict
should be for the defendant. This the court declined to do, but did charge
the jury in substance that for a single trespass committed by two persons
the injured party had a right to but one satisfaction, but that he had a
right to sue both of the trespassers together in one suit or each of them in
a separate suit, at his election, and if he brought a several suit against
against each one he had a right to prosecute them both until he obtained
one satisfaction for the trespass and his costs in both suits. That although
they should find such joint trespass and the payment by Grumley of $8.50,
and the receipt given therefor and the acceptance thereof in satisfaction
of the damages claimed of Grumley and the costs of the suit against him,
yet if this suit was then pending, and costs had accrued thereon and were
unpaid, and this suit was not included nor intended to be included in such
settlement, and nothing had been paid or received on account of such costs,
then the verdict should be for the plaintiff to recover of the defendant
nominal damages and his costs.
448 DEFENSES.
The jury returned a verdict for $1 damages and costs, and being inquired
of by the court at the request of the defendant, the jury said that they
found that the trespass was a joint one committed by the defendant and
Orumley. The defendant moved for a new trial. In granting the motion
Hinman, C. J., of the supreme court of errors, said : ** We think the closing
part of this instruction was incorrect. It is, as we suppose, settled law
tDat a release, discharge or satisfaction of one or more of several joint tres-
passei-s is a discharge of them all, in the same manner that a discharge of
one of several joint debtors, or a payment and satisfaction of the joint debt
by one, is a satisfaction as to all, since a party injured by a trespass com-
mitted by several can have but one satisfaction for his injury, no more
than one who has a debt against several can be entitled to be more than
once paid. It is true, undoubtedly, that for a joint trespass they may all
be sued jointly, or separate suits may be brought against each, because
trespasses committed by several, while they are in fact the joint act of all,
are also the separate acts of each individually, each being liable in law for
whatever was done by them all or any of them ; and if suits are separately
brought against each they may be all pursued to final judgment, and the
plaintiff may elect which of the separate judgments he will enforce and
collect. But having received the damages recovered against any one, and
his costs recovered against all, he must be content with that, as otherwise he
would recover more than one satisfaction for his injury. . . . The principle
upon which this case turns was adopted by this court in the case of Canfield
T. The Eleventh School District, 19 Ck>nn., 629, where it was held that when
a debt was paid there was nothing left for which nominal damages or costs
could be recovered, though the payment was subsequent to the commence-
ment of the suit. ... In this case the issue upon the second plea should,
we think, have been found for the defendant, which would have disposed
of the case, and no doubt would have been so found but for the charge
which allowed the jury to render their verdict for the plaintiff for nominal
damages, although the injury resulting from the trespass had been settled
and satisfied.'* Ayer v. Ashmead, 31 Ck>nn., 447 (1863). Citing Bird ▼.
Kandall, 8 Burr., 1845; Davis v. Jones, 4 B. & C, 506; Ck)cke v. Jannor,
Hob., 66; Livingston ▼. Bishop, 1 Johns., 290; Brown ▼. Marsh, 7 Vt, 827;
Sheldon t. Kibbe, 8 Conn., 214; Knickerbocker v. Colver, 8 Conn.. 111«
CHAPTER Xm.
EVIDENCR
"g 1. Malicious proeecution — Burden of proof.
3. L The prosecution of the plaintiff.
3. Identification of the defendant as the proseciitor.
4b The end of the prosecution.
(1) In civil cases.
(2) In criminal cases.
(8) In actions for the abuse of process,
(4) In actions for false imprisonment.
6. The record conclusive evidence of acquittal or conviction.
^. Contents of lost records may be shown by parol evidence •» Ap{>ll>
cations of the law.
(1) Loss of the complaint before the magistrate.
(2) Evidence of matters not appearing in the record not admisBlble.
• '7. II. Halioe and want of probable cause.
A. Maliciously instituting the prosecution.
Application of the law.
(1) Malice and want of probable cause not inferred from
the discharge of the accused.
(2) Malicious suing of a warrant, evidence of probable
cause.
(8) Evidence of matters arising after the proeeontion of
the alleged malicious suit.
(4) Evidence on the question of probable cause and malice.
R And without reasonable or proper cause.
Application of the law.
(1) Pleadings in former suits between the parties — Letters
and account books.
(2) Entries of the public prosecutor may be explained.
(8) Want of probable cause not established.
^ .Evidence of character — Plaintiff may show it affirmatively— Par-
ticular instances of bad conduct, improper.
t. The rule stated by Taylor, J.
Applications of the rule.
(1) Character of informant in criminal cases — Its bearing on
the question of probable cause.
(2) Bad character of plaintiff's mother not competent
IOl Advice of counseL
An illustration.
Advice of counsel — Its sufficiency as a defense a question for
the jury.
20
450 EVIDENCE.
8 11. Malice.
13. Malice and the want of probable cause most conoor.
18. Actions against magistrates.
Applications of the law.
Testimony before the magistrate on the preliminary
tion, competent.
14. Magistrates are bound bj the records they keep.
Applications of the law.
(1) Matters outside of the record inadmissible^ etOb^
(2) The papers should be produced.
15. Actions for malicious arrests.
18. Want of probable cause in actions for malidoaa arrestiu
17. Proof of damages.
18l Evidence on the part of the defendant.
19. Under the plea of not guilty.
20. Matters not relevant to the issue.
The rule illustrated.
Matters having no relevancy to the Issueii
21. Credibility of witnesses and weight of testimony.
An illustration.
Credibility of witnesses — The province of the Jury*
22. In actions for false imprisonment.
28. Burden of proof, when upon the plaintiff to show the imprisoximeDt
false.
An exception to the rule illustrated.
The plaintiff must show the imprisonment falBSi wham
24. Irregularities and informalities of proceedings.
25. Want of probable cause.
26. The rule stated.
27. Malice in actions for false imprisonmenti
28. General damages.
29. Compensatory damages, elements of.
80. Special damages.
81. The defendant's evidence.
82. What may be shown under the plea of not gnil^.
(1) In bar of the action.
(2) In mitigation of damages.
§ 1. Mallcions proseention — Bnrden of proof. — In order
to maintain an action for a malicioas proseoation, the burden
of proof under the plea of the general issue is upon the plaint-
iff to show by a preponderance of the evidence these proposi-
tions:
L That he has been prosecuted by the defendant either in
a criminal or civil proceeding, and that the prosecution is at
an end.
11. That the prosecution complained of was instituted mali-
ciously and without probable cause.
BVIDENOS. 451
III. That he has by reason of such prosecution sustained
damages.^
§ 2. I. The prosecution of the plaintiff. — As a general
rule in the order of proofs before malice or want of probable
cause is shown, the plaintiff should prove the fact of the pros-
ecution complained of. This is usually done by duly authenti-
cated copies of the record and proceedings in the prosecution
complained of, and for this the record is competent.' But it
seems that it is not sufficient to give in evidence the original
indictment ; because it does not prove the caption, which is a
material averment in the declaration.' If the prosecution was
by means of a charge preferred before a magistrate, the pro-
ceedings should be produced ; or, in case they have been lost,
secondary evidence should be given. And where the proceed-
ings have been laid aside as useless, secondary evidence will
be admissible, after slight proof of their destruction.* In case
the suit is for causing the plaintiff to be maliciously arrested
and detained until bail is given, it is sufficient for him to show
a detention without proving that he gave bail, for the deten*
tion is the principal gravamen^ and is in itself prima facie evi-
dence of an arrest,^ though the mere giving of bail is not such
evidende/ If, however, the action is brought for maliciously
causing the plaintiff to be held to bail, evidence of a previous
arrest is unnecessary.^
§ 3. Identification of the defendant as the prosecator. —
Some evidence of the identity of the defendant must also be
given, and that he was the prosecutor in the proceedings which
are charged to be malicious. One of the grand jury before
whom a bill of indictment has been preferred may, it has been
said, be called to prove the fact that the defendant was the
12 Green]. Ev., § 449; Baylie's A2GreenL Ev., g 451; Bristow v.
Onus Proband!, 184; Abbott's Tr. Haywood, 1 Stark., 48; Whaley y.
Ev., 652; 3 PhiUips' Ev., 567; Bloss Pepper, 7 C. & P., 506.
V. Gregor, 15 La. Ann., 421 (I860). « Berry v. Adamson, 6 B. & C,
« Granger v. Warrington, 8 III. 528; 2 C. & P., 508; 2 GreenL Ev.,
(8 Gil.), 299; 2 Greenl. Ev„ § 450; §451.
Abb. Tr. Ey.,652. '^ 2 Greenl. Ev., § 451; Small y.
» 8 Phillips' Ev. , 568 ; Edwards v. Gray, 2 C. & P., 605 ; Berry v. Adam-
Williams, 3 Esp. N. P., 87. son, 6 B. & C, 528; 2 C. & P., 503.
4 Freeman v. Arkell, 2 B. & C,
496; 2 Greenl. Ev., g 450.
452 BVIDENOX.
proseoator.^ The indorsement of the defendant's name on a
bill of indictment which has been laid before the grand jary
shows that he was sworn to the bill, though it is not the only
competent proof of that fact; but it is not any evidence of
his being the prosecutor.^ It may also be shown that the de-
fendant employed counsel or other persons to assist in the
prosecution, or that he gave instructions, paid expenses, pro-
cured witnesses, or was otherwise active in forwarding the
prosecution.' But it is not sufficient to show that the defend-
ant was a member of the grand jury and employed coansel
to prosecute the plaintiff.*
§ 4. The end of the prosecution. —
(1) In criminal cases: The prosecution which is charged to
be malicious must be shown to have been determined; other-
wise it may possibly happen that the plaintiff may recover in
the action, and yet, if the prosecution is not determined, may
be afterwards convicted of the original charge.^ If the bill of
indictment was returned by the grand jury not a true bill, or
if the plaintiff was acquitted on the trial of the prosecution,
these facts can only be proved by the original record, or by
an examined copy of the record.* An allegation that the
plaintiff was duly and in a lawful manner acquitted by a jury
of the country is proved by the record, from which it appears
that the jury found the plaintiff not guilty, and thereupon
judgment was entered that the plaintiff should go acquitted;'
and the action will not be defeated by showing that the
plaintiff was acquitted on a defect in the indictment. An
entry of a nolle prosequi by the attorney-general is held in
England not to be such a termination of the prosecution as
will enable the plaintiff to maintain the action; and this doc-
iSykes ▼. Dunbar, Selw. N. P., « Barrett t. Ghoteau, 94 Mo.. 13
p. 1305 ; Freeman v. ArkeU, \ C. & (1887).
P., 137 ; 3 Phillips, Ev., 668 ; 2 GreenL » Mills v. McCoy. 4 Cow. (N. Y.),
Ev., § 450. 406 (1825); Watts v. Clegg, 48 Ala.,
2 Bull. N. P., 14, per Holt, C. J.; 561 (1872); John v. Bridgman, 287
Johnson v. Browning, 6 Mod., 216; Ohio St, 22 (1875); Brewer ▼. Jacobs,
Girlington v. Pitfield, 1 Vent, 47; 22 Fed. Rep., 217(1884).
8*PhiUipe, Ev., 568, 569; 2 Greenl. ^3 Phillips, Ev., 575; 2 QreenU
Ev.. g 450. Ev., § 452.
>2 GreenL Ev., g 460; Bitting v. 7 2 Greenl. Ev., § 452; 3 PhflUpB^
Ten Eyck, 82 Ind., 421 ; 42 Am. Rep., Ev., 568.
505 (1882).
BYIDElfOB. 453
trine has been followed in many of the states of our Union, but
in others it has been held to be a sufl9cient termination of the
prosecution to maintain the action for malicious prosecution.^
If the plaintiff was arrested and bound over on a criminal
charge which was ignored by the grand jury, proof of this
fact is not sufficient without also showing that he was regu-
larly discharged by an order of the court; for the court may
have power to detain him for good cause until a further charge
is preferred for the same offense.' But in other cases the re-
turn of a bill ignored by the grand jury has been held suffi-
cient.' A memorandum made by a justice of the peace, at
the time of the trial before him, showing the judgment ren-
dered by him, is admissible to show the termination of the
prosecution.*
(2) In civil cases: The termination of the prosecution in
civil cases may be shown by proof of a rule to discontinue on
payment of costs, and that the costs were ta:sed and paid,
without proof of judgment or the production of the record,'
but an order to stay proceedings is not alone sufficient/ Civil
suits are usually terminated by a judgment, which is most
easily shown by the record.^ It has been held that it is not
sufficient to show a compromise of the suit in question,^ nor
that the prosecuting officer refused to proceed to trial.*
(3) Abtise of process: Where the action is brought for abus-
ing the process of the- law illegally to compel a party to do a
collateral thing, such as to give up his property, it is not nec-
essary to aver or prove that the process improperly employed
1 See chapter " End oftheProee- 48; French v. Kirk, 1 Esp., 30;
cution/' 2 Greenl. Ev., §462. Watkine v. Lee, 6 M. & W., 270;
3 2 Qreenl. Ev., g 452; Thomas ▼. Brook v. Carpenter, 8 Bing., 297.
Qraffenreid, 2 Nott & McC., 148 1^2 Greenl. Et., g 452.
(1819); WeinberKer v. Shelly, 6 W. ^steph. Ev.. 48; Leggett v. Tol-
& S., 886; 8 Phillips, Ev., 568, 575. lervev, 14 Exch., 801; Abbott's Tr.
>2 Greenl. Ev., g 452; Morgan v. Ev., 654; Mills v. McCoy, 4 Cow.
Hughs. 2 T. R., 225; Atwood v. (N. Y,). 406; Caddy v. Barlow, 1
Monger, Sty., 372; Jones v. Qivin, Man. & Ry., 277; Watts v. Clegg,
Qilb. Cas., 185, 220; 3 PhUlips, Ev., 48 Ala. (N. S.), 561.
568. 575. 8McCormic ▼. Sisson, 7 Cow., 715
4 Long V. Rogers, 19 Ala., 821 ( ).
(1851). 0 Thompson ▼. De Motte, 9 Abb.
« 2 Greenl. Ev., § 452; Bristow v. Pr. (N. Y.), 242; 18 How. Pr. (N. Y.),
Haywood, 4 Camp., 218; 1 Stark., 529 ( ); Abbott's Tr. Ev., 654.
1
454 EVIDENCE.
is at an end, nor that it was sued out without reasonable or
probable canse.^
(4) J^alse imprisonment: In actions for false imprisonment
it is wholly unnecessary to allege or prove that the prosecation
has been determined, as the action depends wholly upon the
illegality of the detention.
§ 5. The record is conclusive evidence of acquittals or
convictions. — A record is a memorial history of the judicial
proceedings in a case, commencing with the writ or com-
plaint, and terminating with the judgment; and the design is
not merely to settle the particular question in difference be-
tween the parties, or the government and the subject, but to
furnish fixed and determinate rules and practices for all
future like cases. A record, therefore, must be precise and
clear, containing proof within itself of every important fact
on which the judgment rests; and it cannot exist partly in
writing and partly in parol. Its allegations are facts, and not
the subject of contradiction. They are received as the truth
itself, and no averment can be made against them, nor can
they be varied by parol.* A departure from this rule, in per-
mitting the introduction of parol testimony to add to the
record in cases where it professed not to contradict it, would
not only lead to uncertainty and confusion, but would end
in the subversion of the excellent system of law which rests
upon established precedents.'
§ 6. Contents of lost records may be shown by parol evi-
dence.— Records, like other documents, are exposed to casual-
ties, and like them, maj' also be misplaced and lost; or owing to
the accidents which continually occur, the record may not, in
a given instance, have been extended from the minutes of
the proceedings; and the cases are abundant to show that a
lost record, like a lost deed, may b3 proved by parol, and
1 2 Greenl. Ev., § 452; Granger ▼. malicious prosecution, the jnstioe's
HiU, 4 Bing. N. C, 212; 8 Scott, docket showing the plaintiff*s dis-
561 ; Mayer v. Walter, 64 Pa. St., charge is properly admissible, even
2S3 (1870). though it should appear that it was
2 Coke on Littleton, 260a; Comyn*s not written up at the time when it
Digest, Record, A. F. ; Sayles ▼. should have been. The plaintiff
Briggs, 45 Mass., 421 (1842). should not be prejudiced by the
'Sayles v. Briggs, 45 Mass., 421 justice^s neglect of duty. Amea v.
(1842). On the trial of an action for Schneider, 69 111., 878 (1878).
EYIDBNOE. 455
that the minutes may be introduced, where the record has
not been drawn out in eostensoy as containing the elements of
the record, and, in truth, for the time being, the record itself.^
If this were not the rule, substantial injustice might be done
to innocent parties, who had no duty to perform in making
up the records, and were not charged with the care of their
preservation.
Applications of thb law. —
(1) L088 of the complaint hefort the magistrate — Parol evidence.
On the trial of an action for the malioious prosecution of the plaintiff
'before a justice of the peace on a charfi;e of maliciously breaking down and
leaving open a fence inclosing the lands of the defendant, for the purpose of
proTing proceedings before the justice^ the fact of the prosecution and its
•termination, the justice was called, and testified that a complaint was made
before him and a warrant issued. He made no record of the proceedings
except some minutes on the back of the complaint and warrant. He was
<iiot in the habit of making any other record of criminal cases tried before
him ; that he could not find the original complaint and warrant, although
he had supposed they were among his papers, and had looked for them and
made a thorough search. That a year or two before, on the request of the
plaintiff's counsel, he found the complaint and warrant and caused a copy
thereof to be made, which he then examined and compared with the origi-
fial, and found it to be correct ; that his impression was that a paper, pro-
duced by the plaintiff, purporting to be a copy of the complaint and warrant,
and of a memorandum thereon of a continuance and of the discharge, was
the copy he made, but he was not sure. He did not know that he had seen the
original since he compared the copy with it. He then, while in court,
made a certificate on the back of the paper, that it was a copy of the com-
plaint and warrant, and the plaintiff offered it .in evidence. It was ad-
mitted although the defendant objected.
Before a full court Bigelow, J., said: "The evidence of the magistrate
proved that there was an original complaint and warrant which had been
lost, and that minutes of the proceedings thereon against the plaintiff were
made by him on the back of the papers in conformity with his usual prac-
tice. This was satisfactory proof that a record had once existed, and it be-
ing shown to have been lost by the testimony, which seems to us amply
sufficient, secondary evidence of its contents was clearly admissible.*' Til-
lotson V. Warner, 09 Mass., 574 (1854). Citing Davidson v. Slocumb, 11
Pick., 464; Pruden v. Allen, 28 Pick., 184; Sayles v. Briggs, 4 Met, 421;
Itead V. Sutton, 2 Cush., 115; 1 GreenL Ev., § 601.
(2) Evidence of mattere not appearing in the record not admieeible.
In an action for malicious prosecution the plaintiff is required to show,
*hy the record or a copy thereof, the proceedings in the prosecution against
12 Saund. PI. & Ev., 861; Davidson v. Slocumb, 18 Pick., 466 (1886);
:6ayle8 v. Briggs, 45 Mass., 421 (1812).
456
EVIDENCE.
bim, and his acquittal ; and where the plaintiff ooanted on three distinct
prosecutions on the same day, before a justice of the peace, and three ac-
quitals, but the justice's record showed an arraignment and discharge of
the plaintiff in one case only, it was held that parol evidence was not ad-
missible to show that the plaintiff was prosecuted, arraigned and discharged
on three complaints, although the justice was no longer in office and had de-
clined to take up any further record of the proceedings, the two other pros-
ecutions not appearing in his record. Sayles v. Briggs, 49 Mass., 421 (184?!.
§ 7. II. Malice and want of probable cause. — In actions
for malicious prosecution the burden of proof is upon the
plaintiff to show that the prosecution of which he complaina
was instituted with malice and without probable cause.
A. Malicumsly instituting the prosecution: Another point
to be proved in this action is the defendant's malice in insti*
tuting the proceedings. Malice may be implied from the
want of probable cause where there are no circumstances to
rebut the presumption that malice alone could have suggested
the prosecution ; ^ and malice may be inferred where the de-
fendant's conduct will admit of no other interpretation, except
by presuming gross ignorance.' Express malice is shown by
proof of expressions of ill-will, old grudges, etc. Where the
defendant had published an advertisement of the finding of
the indictment, together with other scandalous matter, it was
held that the plaintiff might give this fact in evidence to show
the defendant's malice;' and the evidence of the defendant,
on the occasion of the preceding trial, is admissible for the
same purpose/
iStancel ▼. Cleveland, 64 Tex.,
660 (1885) ; Lyon ▼. Hancock, 85 Cal.,
373 (1868); Forhes ▼. Hagman, 75
Va., 168 (1881); Doemlinger v.
Tschechtelin, 12 Daly (N. Y.). 84;
Brown v, Willoughby, 5 Ck>lo.. 1
(1879); Motes ▼. Bates. 80 Ala., 382
(18S5); Wheeler v. Nesbitt, 24 How.
(U. S.), 544 (1860); Walker v. Pitt-
man, 108 Ind.. 841 (1886); 3 Phillips'
Ev., 570, 572; 2 Greenl. Ev.. § 453;
Crozer v. Pilling, 4 Barn. & Cress.,
26; by Gibbs, C. J., 5 Taunt., 583;
Turner v. Turner, 1 Gow., 50; Sa-
ville V. Roberts, 1 5alk., 14; 1 T, R.,
540. See chapter on •* Malice."
« 3 PhiUipe' Ev., 672 ; 2 GreenL Et. ,
§ 453 ; Brooks ▼. Warwick, 2 Starke
N. P. C, 889.
'Flickinger ▼. Wagner, 46 Md.,
581 (1877); Dietz v. Langfitt, 63 Pa.
St.. 234 (1869); Mowry v. Whipple,
8 R. I., 860 (1866); Bloes ▼. Oregor,
15 La. Ann., 421 (1860); McKnown
V. Hunter, 80 N. Y., 626 (1864); 2
Greenl. E v., § 453; 3 PhiUipe' Ev.,
572, 573; Chambers ▼. Robinson, 1.
Stra., 691; Knight v. Jermin, Cro.
Eliz.. 134; Straus ▼. Young, 86 Md ^
246 (1872).
* Buller's N. P., 18.
EVIDENPB. 457
Malice must be proved in the same manner as other essen-
tial facts that go to make up the requisites of an action. It
may be inferred from the activity and zeal displayed by the
defendant in matters relating to the prosecution in question.^
Want of probable cause is evidence of mulice, and in the ab-
sence of evidence the contrary is sufBcient to justify the jury
in finding for the plaintiff on that question.^ The existence
of malice may be proved by direct evidence or it may be in-
ferred from circumstances.'
Appijoation of thk law. —
(1) Malice and loant of probable cause not inferred from the discharge of
the accused — Essential ingredients in the action.
The plaintiff and the defendant owned oontiguouR urban lots, on part of
the dividing line of which no fence had been erected. In pursuance of the
direction of a surveyor, whom he had consulted, the defendant, after no-
tice to plaintiff, caused an inclosure to be built on part of what he had
been informed was the true division line between the lots. Plaintiff then
had the spot examined by a different surveyor, who reported that the fence
thus put up by defendant encroached some six inches on his (plaintiff's) lot.
Plaintiff then began to inclose that portion of the division line which de-
fendant had left open ; but* while at work, discovering that the fence thus
being constructed was continuing the encroachment begun by defendant,
he undertook to have it remove^l further off, to what he had been advised
was the proper boundary. While plaintiff's men were engaged in the act,
defendant appeared, remonstrating against the displacement, an ax in
hand, evidently to demolish the fence; but his protest remained unheeded.
Naturally, words passed, but no personal conflict followed. Thereupon
defendant telephoned to the nearest police station, charging a breach of
the peace by plaintiff. The patrol wagon arrived, drawing attention, as is
usual. Defendant then directed the arrest of plaintiff and of his men ; but
matters were so arranged that the latter were let alone. The police oflScer
dispatched and on duty, and plaintiff, then went in a street-car to the
recorder's office, where defendant made an a^davit against plaintiff for a
breach of the peace, while plaintiff, retaliating, made a counter-complaint
1 Dietz V. Langfitt, 68 Pa. St., 284 660 (1885); Walker v. Pittman, 108
(1869) ; Bloss v. Gregor, 15 La. Ann., Ind., 841 (1886); Wheeler v. Nesbitt,
421 (1860) ; Flickinger v. Wagner, 46 24 How. (U. S,\ 544 (1860); Motes v.
Md., 581 (1877); McKnown v. Hun- Bates, 80 Ala., 882 (1885); 2 Greenl.
ter, 80 N. Y., 625 (1864); 2 Greenl. Ev., § 453; 3 PhUlips" Ev., 570, 672;
Ev., §453; 8 Phillips' Ev., 572; Ab- Brown v. Willoughby, 6 Golo,, 1
bott's Tr. Ev., 654. (1879).
2 Forbes v. Hagman, 75 Va., 168 > 2 Greenl. Ev., §453.
(1881) ; Stancel v. Cleveland, 64 Tex.,
458 SVIDKHOB.
against the defendant; both being paroled to appear on an early fixed daj.
After trial both were discharged.
The plaintiff then brought a suit to recover damages tor a malicioaa ar-
rest and prosecution, without probable cause, under a charge of breach of
the peace. The defense was a negation of malice, and an averment of prob-
able cause. The case was tried by a jury, who returned a verdict for (750 in
plaintiff's favor. From the judgment rendered in conformity with the
verdict, the defendant appeals.
Bermudez, C. J. : " The record fails to show malice and want of prob-
able cause, which are essential ingredients in controversies of this kind, on
the part of either party, who, under the circumstances, had authority to
believe, in good faith, that he had a right to do what he had done, — the
plaintiff, to remove the fence ; the defendant, to protest against the dis-
placement, and to invoke the law. It is the malice composed of bad feel-
ing, and the knowledge of having no just cause of action, which create
liability. Kearney v. Holmes, 6 La. Ann., 878. Public interest, and a
proper administration of justice, require that actions for malicious prose-
cution should not be maintained without clear proof of malice and want
of probable cause. Maloney v. Doane, 15 La., 278; McCormick v. Conway,
12 La. Ann., 53.
" We do not think that, from the fact that the plaintiff was discharged
by the recorder and that the defendant was likewise released, malice and
want of probable cause on the part of either must necessarily be inferred.
" If the discharge in each case be viewed as prima facie evidence of
malice, the proof adduced by both parties rebuts that presumption. It was
well said in an analogous case: 'It would be of the worst example to
punish this defendant for resorting to law for the protection of his rights,
rather than taking the chances of a resort to arms, or tamely abandoning
the field to an usurper.' Sisk v. Mathis, 11 La. Ann., 419. See, also. Grod-
frey v. Soulat, 88 La. Ann., 916 ; Ck>Ieman v. Insurance Co., 86 La. Ann., 92;
Dearraond v. St. Amant, 40 La. Ann., 874; 4 So. Rep., 72." Judgment re-
versed. Girot V. Graham, 6 So. Rep., 815; 41 La. Ann., 511 (1889).
(2) Maliciously suing out a peace tcarrant, evidence of probable eauae.
Action by Helen J. Wright against Walter S. Church for malicious prose-
cution. Defendant was the assignee of a judgment in ejectment for the
non-payment of rent of a farm held under a Van Rensselear lease. The
judgment was against Caleb Nelson, who formerly occupied the premises,
and was rendered in 1865. Upon notice to defendant in 1888, leave was
granted to issue execution, which was done. M. Nelson, father of Caleb,
was the owner of the farm, but allowed Caleb to reside on a portion of it
for many years, but never conveyed it to him. About the time the execu-
tion issued M. Nelson conveyed the land to Hannah Nelson, wife of Caleb,
who conveyed to plaintiff. Upon going to execute the writ of possession
a quarrel ensued, in which plaintiff claimed the land, and refused to be
dispossessed under the writ against Nelson ; and told the officer that, if he
attempted to dispossess her, there would be trouble. Defendant procured
a peace warrant, and caused plaintiff to be arrested, for which this action
SYIDENOE. 459
'waa brought The referee found for the plaintiff, and assessed her dam-
ages at |510 ; and judgment was entered thereon, and on appeal to general
term was affirmed. From that judgment defendant again appeals.
In delivering the opinion of the oourt of appeals Danforth, J., said:
** The defendant, while on the stand as a witness in his own behalf, was
asked by his own counsel, ' Had there been occasions frequently before
this occurrence, and in that section of the country, in the process of en-
forcing writs in what is commonly known as ** anti-rent proceedings," for
resistance to be offered against the enforcement of such writs on the part
of those in possession of the premises, including both women and men,
under claim of some superior title to that which was to be enforced in the
writ, and were you familiar with such facts, and had you been present
yourself when such resistance had been offered, and had such occurrences
taken place within a brief period of the occurrence in question, and had
such resistance been carried to the point of killing the officers in the execu-
tion of the writs ? ' and, this being excluded, * offered to show all the
facts embraced in the affirmative part of that question.' To the ruling
there was an exception, and it is now relied upon. The defendant went
upon the plaintiff's premises with no process against her, and was informed
that she had the title under Hannah Nelson ; and, as the referee finds, ' the
defendant, thereupon, in a violent and threatening manner, informed the
plaintiff, while in her house and upon her premises, that he would throw
her out of said house and premises, under said writ of possession, on the
next day; in reply to which the plaintiff informed the defendant that, if
he attempted to remove her under the writ of possession against Caleb
Nelson, there would be trouble.' Of what materiality was it that upon
other occasions there had been resistance and trouble. As against the
plaintiff, the defendant had no writ ; and as against that which he had,
and the assault which he threatened, she might make lawful resistance.
The unfortunate state of affairs to which the question alludes seems wholly
foreign to the defendant's case in this action. If he believed there was
from this plaintiff danger of an assault, he must also have known that it
could only happen upon his own instigation, and that, unless he or his
agent trespassed, they were safe from interference. The referee finds
■* that, on learning that the plaintiff was lawfully in the possession of the
premises, he knew as matter of fact, and was bound to khow as matter of
law, that he could not remove the plaintiff therefrom under said writ or
execution, for possession, against Caleb Nelson ; that the only threat made
by the plaintiff was that of resistance against the execution of the writ
:against Nelson, and from that threat there was no probable reason to ap-
prehend a breach of the peace or a violation of law;' and there is no
view of the evidence which requires any other conclusion, or which tends
to show that the facts suggested by the question, if they existed, could
"have had any material or just operation upon the defendant's mind. Aa
■against the plaintiff he had, so far as the record shows, no right, and,
neither for himself nor the sheriff in whose favor the arrest appears to
have been made, any cause for apprehension. We think the judgment
:8hould be affirmed." Wright v. Church, 89 Hun, 662; 110 N. Y., 468; 18
N. E. Rep., 259 (1888>
460 XYIDENGB.
(8) Evidence of matter arising after the prosecution of the alleged malieiousr
suit
Where a wif e» after a decree of divorce against her, continued to oocapy
an apartment in her husband's house without his consent, and brought her
sister to stay with her, and he, after notifying them to leave, in their ab-
sence locked the door and fastened up the windows, and on their return
the wife broke the windoWs, and thus forced an enti*anoe for herself and
sister, the latter standing by, and one of them concealing the instrument
used, and the husband, on the advice of counsel, had them all arrested for
malicious mischief, and, on the trial of the action brought by one of the
sisters for malicious prosecution, the court admitted in evidence the peti-
tion of the wife for alimony, filed after the divorce and after the criminal
prosecution, for the purpose of showing that she claimed an interest in the
house, on appeal Justice Breese said : ** We think the ruling of the oourt by
which the petition for alimony was admitted in evidence, in which Mra»
Brown claimed an interest in these premises in her own right, was well
calculated to prejudice the jury against appellant. It had nothing to do
with the matter then in controversy, and should have been excluded.*^
Brown v. Smith, 83 111., 291 (1876).
(4) Evidence on the question of probable cause and malice.
Where a state's attorney was indicted for malfeasance in office and neg«-
lect of official duty, and was acquitted, and brought suit against the parties
who caused the indictment to be found for malicious prosecution, and one
of the grounds of the criminal prosecution was that the state's attorney
took a plea of guilty of certain parties indicted for a riot, and failed to
bring the facts of the case to the attention of the court showing the enor*
mity of the offense, it was held error to refuse to allow one of the partiea
thus sued for malicious prosecution to testify as to the facts and circum-
stances in the indictment for riot, as communicated to him by the prose-
cuting witness in that case. In the same case, a party who signed the
petition for investigating certain charges against the state's attorney which
resulted in his indictment, it was held error not to allow the defendant to
state, as a witness, the facts that induced him to sign the petition, as the
testimony had a bearing upon the question of probable cause and good
faith. Harpham v. Whitney, 77 111., 83 (1875).
B. And without reasonable cause: The want of probable
cause is obviously not to be inferred as a necessary conse-
quence from the most express malice. A man, from a mali-
cious motive, may take up a prosecution for real gailt; or^
from circumstances which he really believes, he may proceed
upon apparent guilt; in neither case is he liable to this kind
of action. And it seems to be essentially necessary for the-
plaintiff, in every case, to give some evidence of want of
EVIDENCE. 461
prdbable cause, independently of the proof of malice.^ Where,
indeed, there is proof of express malice, and the cause of the
former proceedings is peculiarly within the knowledge of the
iparty originating them, slight evidence of the want of prob-
^able cause will maintain the action.' It will not, however, be
sufficient merely to prove that, on the trial of the indictment,
the [defendant, who was the prosecutor, did not appear, and
that the plaintiff was consequently acquitted.' Nor is it suf-
ficient to prove that the defendant, after commencing a pros-
ecution, did not proceed to prefer a bill of indictment;^ or
that the bill of indictment, on being preferred, was returned
by the grand jury not a true hi 11.^
The want of probable or reasonable cause is in form a neg-
•ative averment, but the burden of proving it is upon the plaint-
12 Greenl. Ev., § 458; 8 Phillips, Stark. N. P. C, 889; Ravenga ▼.
Ev., 570; Legalle ▼. Blaisdell, 184 Mackintosh, 3 Barn. & Cress., 698;
Mass., 478 (1883); Calef ▼. Thomas, Nicholson ▼. Coghill, 4 Barn. &
61 111., 478 (1876); Hamilton ▼. Cress., 21.
Smith, 89 Mich.. 222 (1878); John t. 2 2 Greenl. Ev., § 458; 8 Phillips,
Bridgman, 27 Ohio St., 22 (1876); Ev., 570, 571; Inoledon v. Berry, 1
Scott T. Shelor, 28 Gratt (Va.), 891 Campb. N. P. C, 208, n. See Nich-
(1877); Stone v. Oocker, 24 Pick, olson ▼. Coghill, 4 Barn. & Cress.,
<Mass.), 84 (1882) ; Vinal v. Core, 18 21. It has been said that, where the
W. Va., 1 (1881); Abrath v. N. K R, facts are within the knowledge of
Co., 4 Q. B. D., 440; Abbott's Tr. the defendant, the onii« is upon him
£v., 658. See Lord Mansfield and to show a probable cause. Bull. N.
Lord Loughborough, in Johnstone P.» 14; by Bailey, J., 4 Barn. &
V. Sutton, 1 T. R., 544; 2 T. R., 281 ; Cress., 24 But the case of Parrot
Incledon ▼. Berry, 1 Campb. N. P. v. Fishwick, 9 East, 862, referred to
C, 208, note: Turner ▼. Turner, 1 by BuUer, does not warrant this
Oow, 50 ; Arbuckle ▼, Taylor, 8 position. And see by Lord Kenyon,
Dow., 160; Reynolds v. Kenneday, Sykes v. Dunbar, 1 Campb. N. P.
1 WUs., 232; Bull. N. P., 14; Cau- C, 202, n.; 9 East, 862; Purcell v.
deU V. London, 1 T. R., 520, note. Macnamara, 9 East, 861 ; 1 Campb.
It seems that where the judge is of N. P. C, 208, n.
opinion, either on the plaintifiTs ' Purcell v. Macnamara, 1 Campb.
showing, or on the uncontradicted N. P. C, 199. So ruled by Lord
evidence of the defendant, that Ellenborough, and confirmed by the
there is a probable cause, it is usual court of king's bench, 9 East, 861.
to nonsuit the plaintifif. Davis v. * Wallis v. Alpine, 1 (>ampb. N.
Hardy, 6 Barn. & Cress., 225; Hill P. C, 204, n.
V. Yates, 2 B. Moore, 80; Bull. N. * Byno v. Moore, 6 Taunt., 187;
P., 14; Fish v. Scott, Peake's C., Freeman v. Arkell, 1 C. A; P. 188.
185; Isaacs v. Brand, 2 Stark. N. See a dictum of Holroyd, J., contra,
P. C, 167; Brooks ▼. Warwick, 2 4 Bam. & Cress., 28.
''462
EVIDENCB.
iff. It requires but little evidence, however, to establish it.^ It
may be shown by the character of the evidence on the trial
of the prosecution complained of,' or by the suspicions behavior
of the party.' In order to sustain the action the plaintiff
must show affirmatively by circumstances or otherwise, as-
best he can, that the -defendant had no reasonable or probable
ground for commencing the prosecution alleged to be mail*
cious.*
Applications op the law. —
(1) Evidence — Pleadings informer 8uit between the parties — Letters and
account books between the parties competent, etc
Peden owned a large farm in Greene county, and formed a copart-
nership with Mail in the fall of 1881, in pursuance of which the latter
moved on to the Greene county form in the spring of 1882. At the time
the agreement was entered into each owned certain live-stock, which it was
agreed should be put into the partnership as firm proi)erty, and Peden was
to furnish money with which to purchase other stock for the firm. He
was to have his money back, with interest, and the profits were to be di-
vided equally. Some differences arose between the parties, and on Janu-
ary 1, 1888, a new agreement was signed. Peden claimed that by the
terms of this last agreement he became the owner of the stock, and that be
had the exclusive right to make sales ; while Mail insisted that the part-
nership in the stock continued as before, and tha( the effect of the new
agreement was nothing more than to give the former a lien on all the
stock to secure him for advances of money theretofore made by him. While
this last agreement was in force and under the claim that Peden was in*
debted to him on partnership account. Mail sold seven steers owned
as above, and appropriated the money. After learning of the sale Peden
demanded the money, which Mail refused to pay over. Under his claim
of exclusive ownership the former then drove off all of the stock which re*
1 Sutton v. Anderson, 108 Pa. St., (1875); Heyne v. Blair, 62 N. T., 1»
151 (1883); Strauss v. Young, 86 Md., (1875); Foshay v. Ferguson, 2 Dev.
246 (1872); Grant v. Deuell, 8 Rob. (N. Y.), 617 (1846); Caperson v.
(La.), 17, 88 Am. Dec, 228 (1842); Sproule, 89 Mo., 39 (1866); Sharpe
Williams v. Van Meter, 8 Mo., 889; v. Johnson, 76 Mo., 660 (1882); Hull
41 Am. Dec., 644(1844); McCormick v. Hawkins. 5 Humph. (Tenn.), 857
V. Sisson, 7 Cow. (N. Y.), 715(1827); (1844); Travis v. Smith, 1 Pa. St,
Stone V. Crocker, 24 Pick. (Mass.), 284 (1845); Marable v. Mayer, 78 Ga.,
81 (1832); 2 GreenL Ev., § 454; 8 710(1887);Good v. French, 115 Mass.,
Phillips, Ev., 570, 571. 201 (1874); Bell v. Pearcy, 6 Ired.
'^ John V. Bridgeman, 27 Ohio St., (N. C), 88 (1844); Molane v. Murphy,
22. 2 Kan., 250 (1804) ; Wheeler v. Nes-
» McRae v. O'Neal, 2 Dev. (N. C), bitt, 24 How. (U. S.), 544 (1860) ;.
166 (1829). Levi v. Brannan, 89 Cal., 485 (1869).
«Skidmore v. Bricker, 77 111., 164
EVIDENCE. 463
mained, which was of the value of about |1,500. Thereupon Mail insti-
tuted a civil suit against Peden for an accountinfz:, claiming that the latter
was indebted to him in a large sum. He afterwards recovered a judgment
for some |1,800. In a few days after the civil suit had been commenced
by Mail, Peden consulted the prosecuting attorney* upon whose advice, as
he claims, he afterwards instituted a criminal prosecution against Mail,
charging him, in one count, with the larceny of the seven head of cattle
sold as above mentioned, and in another count with embezzling the money
arising from the sale. After a trial Mail was acquitted. An action was
then commenced by Mail against Peden to recover damages alleged ta
have resulted by reason of criminal prosecution, which, it is charged, he
maliciously and without probable cause instituted and caused to be prose-
cuted against him. Upon evidence tending to prove facts of which the
foregoing presents but a brief summary, the plaintiff below recovered a
judgment, from which an appeal was prosecuted.
Mitchell, J. : The appellant complains that the court admitted in evi-
dence the pleadings in the civil suit instituted by the plaintiff against him
a short time prior to the commencement of the criminal prosecution, which
gave occasion for this suit. There was no error in admitting these in evi-
dence. It was a part of the plaintiff's case to show that the criminal prose-
cution was instituted against him without probable cause. The verdict
and judgment of acquittal were sufficient to raise the presumption that
the plaintiff was not guilty of the crime charged against him, but it was
incumbent on him to go further, and by putting all the facts and circum-
stances which led up to the prosecution before the jury, make it appear
that it was instituted without probable cause.
If, as a matter of fact, a criminal prosecution is instituted for some col-
lateral purpose, and as a means of coercing another to surrender some
right or claim which he makes, regardless of whether or not the person •
against whom it is commenced has committed a criminal offense, the
prosecution so begun is without probable cause. Paddock v. Watts, 116
Ind., 146; 18 N. R Rep., 518; Kimball v. Bates, 50 Me., 808. It was there-
fore competent to show the institution of the civil suit a few days before
the criminal prosecution was commenced in order to show a motive for
the prosecution other than the belief that the plaintiff was guilty of a
criminal offense.
The judgment rendered in the civil suit was also admitted in evidence,
but as this wad afterwards withdrawn or stricken out by the court, there
was no error. Indeed, it is not entirely clear that the judgment was not
competent evidence.
Before the civil or criminal suit had been instituted, the plaintiff wrote
a letter to the defendant, in which he complained that the latter had not
kept the partnership account correctly; that he had failed to give the
writer credits for about |1,200 to which he was entitled, and asking for an
itemized account. He also complained of the refusal of the appellant to
correct the books, or to give him a statement of his account, and claimed
that there was money due him from tlie appellant. He also informed the
appellant that he had sold the seven head of cattle already mentioned, and
explained the reasons for selling them. This letter was admitted in evi-
464: EVIDENCS.
dence as part of the plaintifTs case. In this there was no error. The
letter was admissible as tending to show that the appellant knew, at the
time he instituted the criminal prosecution for the larceny of the cattle
referred to in the letter for embezzling the money received for them, that
the plaintiff was acting in good faith and under a claim that he had a right
to dispose of the cattle.
There was no error in admitting the evidence of Huston in relation to an
attempted settlement or statement of the partnership account. It was not
an attempt to compromise a threatened or pending law-suit. His teati.
mony related simply to what occurred at a time when the account as kept
by the appellant was being stated. Nor was there any error in permitting
the jury to examine the appellant's book in which the partnership account
was kept, with a view to determine whether or not the account had not
been erased and interlined to the plaintifiTs disadvantage. The pUdntifPa
claim was that he had a right to sell the cattle and apiHropriate the pn>-
oeeds of the sale to his own use, because the appellant was indebted to him
on partnership account
He claimed further that the appellant had so erased and changed the
account which he kept in his book as to show that there was nothing due
him, and these changes and erasures appeared on the book. It was there-
fore competent to introduce the book in evidence and submit it to the in-
spection of the jury. Judgment affirmed. Peden v. Mail, 118 Ind., 500;
20 N. E. Rep., 446 (1889).
<2) Entries of public prosecutors may be explained or disputed — Variance,
Where in an action for malicious prosecution it appeared that the defend-
ant had caused the plaintiff to be twice indicted, and that the attorney of
the commonwealth had entered a nolle prosequi on the second, "it appear-
ing that the accused had been formerly acquitted of the offense charged
against him in this indictment,'* it was held that the defendant might not-
withstanding show that the second indictment was for a different offense
from the one first charged, and that so there was probable cause for the
second accusation. There is a material variance between an indictment
** for drawing and depositing in and across a highway a quantity of stones,"
and one *'for building a stone wall in and upon the same highway ; " and
in an action for a malicious prosecution brought against the prosecutor of
the last-mentioned indictment, it being proved that the plaintiff was guilty
of the offense therein charged, and it not appearing, upon proper aver*
ments, that the two indictments were for the same offense, it was held
that the defendant had shown probable cause for the prosecution. White
V. Ray, 25 Mass., 467 (1820).
(8) Want of probable cause not established.
*
Want of probable cause for a prosecution for perjury is not established,
in an action for malicious prosecution, by proof that the plaintiff was ac-
quitted upon a trial, that the defendants were interested as members of a
committee of a town in defending the action in which the perjury was al-
leged to have been committed, and which was pending on exceptions at
EVIDENOE. 465
the time when the proeecntion was instituted ; that they presented to the
grand j ury a complaint containing a statement of their belief that the
(plaintiff had been guilty of perjury, and that an indictment was found by
Che first grand jury to which it was thus presented, and that the plaintiff's
testimony which was alleged to be false was not precisely as stated in the
<;omplaint of the defendant, if it also appears to the satisfaction of the court
that the plaintiff's testimony in relation to the matter in question was in-
correct, and that various other persons besides the defendant believed the
charge of perjury to be well founded. Kidder et nx. v. Parkhurst et al,
85 Mass., 898 (1862;.
§ 8. Character — Plaintiff need not rely upon the pre*
sumption of good character — He may proye it afflrma-
tively — Particular instances of bad conduct incompetent.
There is some conflict of authority as to- the competency of
evidence of the reputation of the plaintiff in a trial of an ac-
tion for malicious prosecution. There are many cases in which
it is held that in actions of this kind, as in actions of slander,
the general bad reputation of the plaintiff may be shown in
mitigation of damages. There are also decisions that in suits
for malicious prosecution such reputation may be shown to
meet the allegation of want of probable cause.^ But none of
the cases go so far as to permit proof of particular instances
of bad conduct. In determining whether there is probable
cause for a prosecution for the commission of a crime, the
known character or general reputation of the person suspected
is always an element of some importance; for, as was said by
Chief Justice Shaw: ^'The same facts which would raise a
strong suspicion in the mind of a cautious and reasonable
man against a person of notoriously bad character for honesty
and integrity would make a slighter impression if they tended
to throw a charge of guilt upon a man of good reputation."
In suits of this kind, where the prosecution complained of
was for an offense implying moral turpitude, the plaintiff's
general reputation at the time of the prosecution, if the de-
fendant was where he would be likely to know it, is always
involved in the issue, and the defendant may properly be per-
mitted to show that it was bad. We see no good reason why the
1 M'Intire ▼. Levering, 148 Mass., mire, 2 Esfx , 721 ; Gregory v. Thomas,
646; 20 N. E. Rep., 191 (18S9); Baoon 2 Bibb, 2S6: Bostick ▼. Rutherford,
T. Towne, 4 Cash., 241; PuIIen v. 4 Hawks, 88; Gregory t. Chambers,
<]^Iidden, 68 Me., 559; Barron v. Ma- 78 Mo., 294; Rosenkrans v. Barker^
«on, 81 Vt., 189; Rodriguez t. Tad- 115 01., 881; 8 N. E. Rep., 98.
80
466 BVIDBNOIB.
plaintiflF shoold not be permitted, on the other hand, to show
aflBrmatively that it was good. It is trae that every one is pre-
sumed to be of good character until the contrary appears, and
this presumption ordinarily saves the necessity of proof. In-
deed, in civil cases, as a general rule, evidence of reputation is
not competent upon a question as to liability for a particular
act. But whenever character is in issue the rule is different.
One charged with a crime is not obliged to rest upon a presump-
tion of good character. Infavorem libertatia he may prove the
fact, if he can, by a weight of evidence far more effective than
any mere presumption. A plaintiff in a suit for a malicious
prosecution upon a criminal charge has the burden of proving
that the prosecution was without probable cause. In defending
against the prosecution he would have the right to show his
good reputation, although his character was not attacked
otherwise than incidentally by the prosecution itself. The
same incidental attack upon his character necessarily appears
in the suit for the malicious prosecution. To prove that the
attack was originally made without probable cause, we think
he should )|e permitted to show his good reputation, known to
the defendant when the prosecution was commenced.'
§ .9. The rule stated by Taylor, J. — Upon this question
the authorities are somewhat in conflict. The question seems
to us to be this, in determining the probability of the guilt of
a party charged with a crime : Has his previous good character
any bearing on the question? We think this question must
be answered in the afiSrmative. The fact that it has weight
in determining the question of guilt in all cases where there is-
any doubt of the guilt of the accused party is the basis of the
rule in criminal actions, that the defendant may, in all such
cases, and perhaps in all cases, give in evidence his previous-
good character. The fact that he has such character is some
evidence, and often very conclusive evidence, of the innocence
of the accused. When, therefore, a person is about to make
criminal complaint against a citizen of previously known good
character and reputation, it is reasonable that he should con-
iMlntire ▼. Levering, US Mass., 166; Israel t. Brooks, 28 DL, 575-,.
646; 20 N. B. Rep., 191 (1889); Wood- MUler v. Brown, 8 Mo., 1S7; Scott
worth ▼. Mills, 61 Wis., 44; ^ N. W. y. Fletcher, 1 Overt. (Tenn.), 488.
Bep., 728; Blizzard v. Hays, 46 Ind.,
EVIDENOB. 467
sider that fact with the other facts and circamstances in de-
termining the qaestion of the probability of the gailt of the
accused. If I lose my horse under circumstances which indi-
cate that he had been stolen, and shortly after he is found in
the inclosure of a man who has the reputation of being a
horse-thief, I might have probable cause for believing that that
man had stolen him; but if he was found under like circum-
stances in the inclosure of a man whom I knew to have sus-
tained a good reputation for many years, there would be a
question, at least, whether I would have probable cause to be-
lieve such man guilty of the theft. There are many cases
which hold that in a civil action the character of the plaintiff
is not in issue until the same is attacked by the defendant, and
that until so attacked it is presumed to be good, and therefore
there is no necessity or propriety in giving affirmative proof
of such character. This, as a general rule, is undoubtedly the
true rule; but in an action for the malicious prosecution of a
criminal action, where the main question in the case is whether
the defendant had probable cause for instituting such pro-
ceedings, an exception should be made. In such action the
plaintiff must prove a negative, — that is, prove that the prose-
cutor did not have probable cause to believe him guilty of
the offense charged, and, as bearing upon that question, he
ought to be permitted to give evidence of his previous known
good reputation.^
Applications of thb kule.^
(1) Character of informant in criminal eases — Bearing on the question
of probable cause — Speeijle instances of bad conduct, etc
Bella Mclntire sued William Levering for malicious proeecution for
stealing wine. The defendant's evidence tended to show that on the day
of the offense he was absent, and that on his return on the following
^Woodworth V. Mills, 61 Wis., 44; for malicious proeecution evidence
20 N. W. Rep., 728 (1884). See Blias- that the plaintiff bore a bad reputa-
zard V. Hays, 46 Ind., 166; Israel ▼• tion generally was admissible, but
Brooks, 28 IlL, 575; Wade v. Wal- not the grounds of it. Rodriguez v.
den, id., 425; Miller v. Brown, S Tadmire, 2 Esp., 721 (1709); Corn-
Ma, 127; Bacon v. Towne, 4Cush., wall v. Richardson, Ry. & M., 805
217-240; Rodriguez v. Tadmire, 2 (1825); Downing v. Butcher, 2 Moo»
Esp., 722. It appears to have been ic R., 874 (1841).
the rule in England that in actions
468 EVIDENOR.
morniDg one Madden, his hired man, informed him that his (Madden*s)
wife had oonfeeeed to him that she, in company with the plaintiff and
another, had stolen the wine ; that one Hewett, a boy, also informed him
that he saw an axe, which was found on the premises, in the hands of the
plaintifiTs daughter on said day; that said Madden and Hewettwent to the
office of a justice and related said facta and confession, and that said jus-
tice informed Madden that the defendant was the proper person to aiake
complaint, which Madden communicated to the defendant; whereupon hA
appeared before said justice and swore to the complaint, Madden and
Hewett being present. The defendant offered to introduce as testimony,
und to show by the justice as part of his case, the statements of said Mad-
<Jen nnd Hewett to the justice, but such statements were excluded, not
being made in the presence of the defendant. In rebuttal the plaintiff was
allowed to put the following question to the plaintiff's husband who was a
witness : " Question, In conversation with Levering, defendant, before the
complaint, did he say that he had heard that Mrs. Madden had been in Ded-
ham jail. Answer. Yes," — to which question and answer the defendant ex-
cepted. The defendant had stated on cross-examination that he had not
fitated to any one that he had heard that Mrs. Madden had been in Dedham
jail. Verdict for plaintiff, and the defendant excepts.
Knowlton. J. : Testimony of statements by Madden and Hewett to the
justice, made in the absence of the defendant, was rightly excluded. The
statements cannot be treated as facts tending to show the plaintiff's guilt,
and competent evidence for that purpose, which the defendant may be
presumed to have known, even though his knowledge of them is not dis-
tinctly shown. They are mere declarations of third persons, which do not
appear to have been communicated to the defendant, and which have no
bearing upon either of the questions at issue in the case.
The other exception presents a question of more difficulty. To show
that the prosecution was not without probable cause, the defendant relied
upon a statement of Mrs. Madden, communicated to him by her husbitnd,
that she, accompanied by the plaintiff and another, broke into the defend-
ant's premises, and stole his wine. It became a question for the jury to
determine how far the defendant was warranted in believing her state-
ment, and how far he did in fact believe it.
It is quite clear that it would not be competent to attack the credibility
-of a witness in a trial by proving that he had been confined in jail, or that
he had been guilty of any unlawful or criminal act. Nothing less than
proof of conviction of a crime would be admissible. But this rule rests upon
considerations of public policy, which forbid the introduction of evidence
of particular acts, involving a trial of new and unexpected issues, for
which the opposing party could not be expected to be prepared. There can
>be no doubt that one's own acts of misconduct, indicating his character,
may properly be considered in determining his credibility.
A witness was permitted to testify that the defendant, before the
complaint was made, said '*that he had heard that Mrs. Madden had been
in Dedham jail." If that statement tended to show, as against the defend-
ant, that she was less credible than other persons, it was competent evi-
dence upon the question whether there was probable cause for the proee*
KVIDENCB. 469^
cntion. If it had no proper bearing upon his credibility, but at the same
time indicated distrust of her on the part of the defendant, it was compe-
tent on the question whether the prosecution was malicious. It may be
argued with much more force that the one who should say colloquially of
another that he had been in jail would probably mean that he had been there
under such circumstances as to affect his reputation, and to indicate that
he was untrustworthy. So to say of another that one has heard that he has
been in jail implies some degree of credence in the story.
The evidence in the present case seems to have been of little importance,
yet it purported to show what was in the defendant's thoughts before the
complaint was made. Upon the facta disclosed we cannot say that th»
jury might not properly consider it.
Exceptions overruled. Mclntire v. Levering, 148 Mass., 546; 20 N. E»
Rep., 191 (1889).
(2) Bad character of the mother not competent for the defendant in a suit
by the son for malicious prosecution.
On the 22d day of October, 1887, Tyler caused Milo Bruce to be arrested
jointly with Sarah K Bruce, his mother, and taken before a justice of the
peace on a charge made by him against them of stealing turkeys. On a pre-
liminary examination before the justice they were recognized to appear in
the circuit court to answer said charge. In the circuit court Tyler charged
Milo Bruce by affidavit, sworn to, with the same crime, and an informa-
tion was also filed. On the trial in the circuit court they were both acquit-
ted. Milo Bruce was at the time about thirteen years of age and lived
with his parents. An action for malicious prosecution was then brought
by Milo Bruce against Tyler. On the trial the evidence tended to show
that Sarah £. Bruce owned about one hundred turkeys and Tyler owned
about sixty-five. On the 20th day of October, 1887, Sarah £. Bruce sold
twelve turkeys; her son Milo was present when she sold them. They were
turkeys of her own raising, and by her order her son caught them on the
day they were sold and drove them to town. Tyler lost no turkeys, and had
as many after the arrest as he had before, but he claims to have lost thirty-
three turkeys on the 20th day of October, 1887. Sarah E. Bruce was not
called nor sworn as a witness on the trial. "The appellee, to sustain the
issues on his part, culled as a witness one Caroline Dipert, who was duly
sworn as a witness, and thereupon the appellee asked her the following
question: 'Question. You may state, Mrs. Dipert, if you are acquainted
with the general reputation of Mrs. Bruce, the old lady, in the neighbor-
hood where she is known ; was you acquainted with her reputation say the
20th of October, 1887, for honesty?' And she answered: *Yes, sir.' The
witness was asked the further question to state what * that reputation was,
good or bad,' and she answered, it was ' bad.' " Objection was made by
counsel for the appellant at the proper time as to the competency of the
evidence. The objection was overruled. A motion was also made to strike
out the evidence, which was also overruled, and exceptions reserved to the
rulings of the court. The trial resulted in judgment for the appellee. The
cause went to the supreme court upon a reserved question of law.
I
470 XYIDBNOB.
In granting a new trial. Olds, C. J., aaid: ''This evidenoe is dearlj is-
oompetent, and it was error to admit it. Tlie parents are the natural cna-
todians of a child of the age of the appellant. His association with his
mother cannot be said to be of his own volition. His parents, who were
living together, had the lawful right to his custody, and it was his duty to
confide in them, and obey all reasonable and lawful commands which they
might give. The fact that the mother with whom he lived might have a
bad reputation for honesty constituted no grounds for the arrest of the aon
for the crime of larceny. In some instances the general bad character of
the party himself might, when considered with other facts, tend to estab-
lish probable cause for his arrest; but to hold that the bad reputation of
the mother of a boy thirteen years old, with whom he lived, may be proven
as tending to establish probable cause for tlie arrest of such boy for the
crime of larceny, is carrying the doctrine of proof as to character entirely
too far to be permitted. It is very doubtful, even in a case where persons
of mature years voluntarily associate themselves together and a crime is
committed, and they are arrested charged with the commission of it, and
acquitted, and one of them brings suit for damages for malicious prosecu-
tion, whether it would be proper to consider the reputation of the other
defendant in determining whether the person instituting the prosecution
had probable cause for so doing ; but certainly such evidence is not proper
in such a case as the one at bsr. See Armstrong v. Grogan, 6 Sneed, 106;
1 Hil. Torts, p. 454, §19; Brainerd v. Bracket t, 88 Me., 680; Holburn v.
Neal, 4 Dana, 120; Pecli v. Chouteau, 91 Mo., 188; 8 S. W. Rep., 677; Pat-
terson V. Garlock, 89 Mich., 447; Falvey v. Faxon (Mass.), 9 N. E. Rep..
621; Walker v. Pittman, 108 Ind., 842; 9 N. £. Rep., 176; Oliver v. Pate,
4^ Ind., 182; Peden v. Mail, 118 Ind., 660; 20 N. E. Rep., 446; Adams v.
Bicknell (Ind.), 25 N. £. Rep., 804; Cottrell v. Cottrell, id., 906; Winemll-
ler V. Thrash, id., 860 (Oct. 11, 1890). The court erred in admitting the ev-
idence. Judgment reversed.** Bruce v. Tyler (Ind.), 26 K. £. Rep., 1081
(1891).
§ 1 0. Adyice of counsel. — If the defendant acted under
the advice or opinion of legal coansel, this fact is relevant
both to show probable cause and absence of malice. To ren-
der such opinion or advice competent for such purposes, it
must be shown that it was given before the prosecution was
commenced; and the statement of facts which was laid before
the counsel, and upon which such opinion or advice was given,
must be shown. The learning or ability of the counsel need
not be shown, as it will be presumed from the evidence that
he was a dnly licensed attorney and counsel.
If the defendant is able to show that a full and fair state-
ment was made by him to a respectable attorney, and that he
acted on his advice, it will require strong evidence to show
BVIDRNOB. 471
that the defendant did not believe that there was reasonable
or probable oaase for the prosecation.^
An ILLUSTSATlbN. —
Advice of counsel ^-lU efficiency as a defenee, a gueetion for the jury.
In an action for malidouB prosecution, brought by Charles W. Finn
against Joseph P. Manning, based upon the allegation that Manning
caused Finn to be prosecuted upon the charge of embezzlement, one
ground of defense was the advice of counsel Manning, the defendant,
testified as follows: ** Q. Did you ever have any settlement with Mr. Finn?
A. No, sir. We never had any settlement at all. He came and pretended
that he wanted to settle, and denied having the goods. Q. Failing to get
a settlement with Mr. Finn, did you take counsel In the matter, and, if so,
who did you speak to or consult? A. E. F. Smythe and Mr. StulL Qea,
O'Brien and I had a talk with a man named Bennett, and bad a^talk with
Mr. Burn ham. Q. State the substance of what you said. A. I said that I
furnished Mr. Finn this money, as my agent, to do this work with ; that
the stipulation was that he was to have a per cent., one-third of the profits,
after the expenses were paid; I stated that I employed him as an agent;
that he bad received the goods, and failed to report to me or give me any
account whatever of the proceeds, or what he had done with them*
Q. State whether you showed that memorandum book to any or all of the
attorneys. A. I did, and those papers that are there (referring to a bundle
of papers). These hlue papers were shown to Mr. Burnham, Col. Smythe
and Mr. Scull. Q. State what Mr. Smythe advised you as to the proper
course to pursue, and what he said as to the probable cause, if any, as to
Mr. Finn's being guilty of any crime. A. He advised me to go to the dis-
trict attorney. He said I had a good cause, and there was no doubt of his
guilt of embezzlement, or a breach of something about bailee. Q. State
what conversation you had with Mr. Burnham in this matter. A. I stated
to Mr. Burnham that I had Finn employed, and furnished so much money
for agent. He had disposed of this property, and refused to settle or ac-
count for it. That I employed him as my agent to do these things, and I
was deficient. I showed him the account book that I had, and the date of
everything. I showed him receipts and agreement made between Mr. Finn
and myself. I showed all the papers that I had, and the books, and took
them ail to him. Q. State what Mr. Burnham said to you. A. Mr. Bum-
ham said it was a good case, and he would attend to it. Q. When did you
next see Mr. Burnham? A. I saw him the next Monday following.
<2« State if you ever saw that paper (referring to the original complaint)
before, and who prepared it. A. I signed that paper, and saw It, of course.
It was prepared at Mr. Burnham*s offloe by Baylett, and read over to Mr.
Burnham, and Mr. Burnham said it was right 'Q. State if you went to
the police oourt, and swore to that, and under whose directions? A. Mr.
iAbbott*B Tr. £v., 655, 656; Skid- Jackson ▼. Mather, 7 Ck>w., 801
CQore V. Brecker, 77 lU., 164 (1876); (1827); Laird v. Taylor, 66 Barb., 181^
Home V. SuUivan, 88 111., 83 (1876); (1868).
472 EVIDKNUB.
Bumham'0. Mr. Baylett, deputy district attorney under Mr. Bumham, ap-
peared there on behalf of the state. There was an examination and trial
had there, and the case was sent up to the district court."
N. J. Bum ham testified that he was district attorney from January 1»
1881, to December 81, 1883 ; that the complaint of defendant in the police
court was in the handwriting of his former partner, Samuel A. Baylett.
Q. "State whether yoa had anything to do with the getting up of this
complaint? A. I have no distinct recollection of drawing, or of having
anything to do with the drawing, of the complaint. Q. In relation to thia
complaint, did you not tell him that it seemed to be a clear case, and yoo
would turn it over to Baylett to prepare the complaint? A. I do not be-
lieve that I could have said that. I do not believe that I did. I left it to
the grand jury, and it was very thoroughly examined. Q. Did you not say
to Mr. Manning that there was probable cause for the prosecution of thia
case? A. I have no recollection of saying anything of the kind."
Greorge M. O'Brien testified that he was an attorney-at-law, resident of
Omaha since 1866. Q. State whether or not J. P. Manning consulted you
and asked your advice in regard to a criminal matter in which Finn haa
since been charged with embezzlement, and what was then and there said
and done? A. In the early part of 1882 he consulted me, a short time before
Finn was arrested, or probably about the time of his arrest. He brought to
my office an account book, and made a statement that he and Watson were
in partnership in the truck business, buying and dealing in truck, which
they got southeast somewhere. That they employed Charles Finn as agent
to purchase it, and bring it here to be disposed of, and for that purpose he
had furnished him money from time to time amounting to over $1,000. That
the money was paid out for the purchase and transportation of apples, but-
ter and chickens. That Finn was to continue as agent for the selling of
them, and that for his pay for his services as such agent, he was to have
one-third of the profits. I asked him, ** Why one-third of the profits," for
my information ; he said they could not get at the days he worked, and
that was the way he was getting pay for his services. I examined his ac-
count book, and cross-examined him upon it. He asked me what he
should do. I said, " Mr. Manning, this statement of yours leaves Mr. Finn,
if true, guilty of embezzlement" He said, '* It*s Gkxi's truth, and I want
your opinion on It" I said that my opinion is that the statement that yoa
made to me is embezzlement, and he ought to be prosecuted. He said,
'* What shall I do about it?" I told him that the matter in my judgment
was sufficient, if true, to send Mr. Finn to the penitentiary, and that it was
his duty to go and lay the matter before the district attorney. Then he
said, ** Your advice is to go to the state's attorney." I told him it was my
opinion and judgment, that, on the statement he made to me, Finn v^as
guilty of embezzlement.
After an exhaustive trial of eight days and an impartial charge, the
jury returned a verdict for the plaintiff, assessing his damages at $900,
upon which judgment was rendered. Mr. Manning took the matter to the
supreme court on a writ of error.
In afiSrming the judgment Cobb, J., said : "The defendant below is not
sufficiently corroborated by his own witness, the former district attorney,.
BVIDBNOB. 47S^
as to having been legally advised that he had probable cause for the crim-
inal prosecution ; but the testimony of that witness tends to the want of
advice and the contrary opinion. He is but partially corroborated in tha^'
important fact by his counsel on the trial, whose advice was that *if his-
statement of all the facts and circumstances was true the defendant was-
guilty of embezzlement.' This advice, given carefully and subjunetively^
was not conclusive, for through its fatal ' if ' it destroyed the proposition^^
that he was justified, on his statement, in commencing the prosecution.
He was to undertake it on that advice only if his facts and the circum-
stances were true. For the certainty and sufficiency of the premises he-
alone must be responsible, a question, at least, for the jury to decide. The-
essential ground of recovery for malicious prosecution is that it >vas car-
ried on without probable cause, which is a mixed proposition of law andv
.'act Whether the circumstances to show it probable are true is a matter-
of fact to be tried ; but, if true, that they make a probable cause, is a quea-
tion of law to be decided." Manning v. Finn, 28 Neb., 511 ; 87 N. W. Itep.,
814 (1888). Citing Trevor v. Trevor, 1 H. L. Cas., 268.
§11. Malice. — For the purpose of disproving malice inr
making a criminal charge the defendant may testify as a wit-
ness in his own behalf as to whether, when he made the charge,
he believed that the plaintiff was guilty of the charge.^ And'
the declarations of the defendant, made as a part otres gestcB oF
an act in proceedings alleged to be malicious, are, it seems^
competent in his own favor to negative malice,' but the decla-
rations of his agent or attorney, unless brought home to him^
are not.*
§ 12. Malice and the want of probable ean^e must coii<-
cur. — The burden of showing that the prosecution com-
plained of was instituted maliciously and without probable or-
reasonable cause is, as we have seen, upon the plaintiff, and'
both of these elements must concur or the suit will fail ; for-
if the prosecution were malicious and unfounded in matters-
of fact, but yet there was probable cause, the action for mali-
cious prosecution can not be maintained/
iMcKnown ▼. Hunter, 80 N. Y., Burr., 1791; Stone ▼• Crocker, 24
635. But the rule on this subject is Pick. (Mass.), 88 (1882); Bell v. Gra-
not uniform. See, contra. Sawyer ham, 1 Nott & McG., 278 (1818) ;
V. Loomis, 8 Sup. (T. &C.)f 898. HaU v. Suydam, 6 Barb. (N. Y.)^
3 Wood V. Barker, 8? Ala., 60 88 (1849); Richey v. Davis, 11 lowa^
(1860); Abbott's Tr. Ev., 655. 124 (1860); Kirkpatrick v. Kirkpat-
'Floyd V. Hamilton, 88 Ala., 285 rick, 89 Pa. St., 288(1861); Arbuckle^
(1858). V. Taylor, 8 DowL, 160; Turner ▼-
*2 Greenl. Ev., §458; 8 PhUlips, Turner, Gk>w, 20.
£v., 568,669; Farmer v. Darling, 4
-414: SYIDENOB.
§ 13. Actions agatnstmaglstrates.— If an action is brought
4igainst a magistrate for a malicious conviction, the question
is not whether there was any actual ground for imputing a
•crime to the plaintiff, but whether there appeared to be any
ground upon the hearing before the magistrate; and this can
only be shown by proving what passed upon the hearing when
the conviction took place. If the depositions of witnesses
were taken down in writing at the hearing before the magis-
trate, they ought to be produced on the part of the plaintiff.^
Application of the law. —
Testimony before magistrate on the preliminary examination competent.
The defendant, in an action for a malicious prosecntion, may prove l^ a
magistrate before whom the prosecution was instituted what the testimony
before him was on the part of the government, in order to show probable
•cause and rebut the allegation of malice ; and it is not necessary, for this
purpose, that the witnesses by whom the testimony was giveh, or their
depositions, should be produced ; but if produced, and the witnesses or de-
ponents are unable to recollect what their testimony was, it may neverthe-
less be proved by the magistrate. 80, for the same purpose, the defendant
may prove what a certain person communicated to another, with a request
Chat the latter would make it known to the defendant, the fact that the
former saw the plaintiff do the criminal act of which he was accused, and
that this information was communicated to the defendant before the com-
plaint against the plaintiff was made. Bacon v. Towne, 58 Mass., 217
<1819).
§ H. Magistrates are bound by the records they keep.—
The great leveling principles which have been so long known
^nd recognized as making the distinction between the differ-
-ent degrees of evidence, and holding the weaker and more
uncertain to be incompetent when a higher degree of evi-
dence is shown to exist, cannot be too strictly enforced. No
principle in law is more firmly established than that which
<)xciades oral testimony when offered to control, contradict
or vary written evidence, especially that species of evidence
denominated records.* Under the statutory provisions of
nearly ail if not all of the states, every jastice of the peace
is required to keep a record of all his judicial proceedings in
n Phillips, Ev., 571, 573; Parker 'Sayles v. Briggt, 45 Mass.. 421
-v. Huntington, 2 Graj (Mass.). 124; (1843); KendaU v. Powers, 45 Maas.,
Dailej V. Bethune, 5 Taunt., 580; 558(1842).
aSlse V. Smith, 3 Chitty, 804.
BVIDKNCB. 475
•civil and criminal oases. These provisions secure to all con-
cerned, to the parties as well as the justice, the benefit of this
species of evidence as to all the proceedings m a cause. The
duty imposed on the justice to keep a record undoubtedly
applies to everything which is necessary to exhibit fully the
filial disposition of the cause on his part. Having this duty
enjoined upon him, and consequently having the opportunity
afforded to him of furnishing, by bis own record, the strongest
case in his power, which the truth will warrant, public pol-
icy as well as the rules of law forbid that a justice of the
.peace should be allowed to introduce parol evidence to add to
or in any manner contradict the record as made up by him.
As a defendant in suits growing out of his official acts, he has
the right in law to be tried by his record; but by it, as orig-
inally made, he must stand or fall.^
APPLIOA.TIONB OF THB LAW. —
(1) Justice of the peace ^Matters outside of his record inadmissibile.
In an action against a magistrate for false imprisonment of the plaintiff
in the house of correction, it appeared on the defendant's record that the
plaintiff wbb duly convicted before him of being a common drunkard, and
ivas thereupon sentenced to said house. The plaintiff appealed from the
sentence to the court of common pleas, and upon his faUure to procure
sureties for the prosecution of his appeal, the defendant issued a mil"
Hmtui pursuant to the sentence. It was held that the defendant could not
be permitted to show by parol evidence, in justification of his proceeding,
that the plaintiff, after failing to procure sureties, waived and withdrew
his appeal Kendall v. Powers, 45 Mass., 653 (1S42).
(2) The papers should heprodueed^ etc
In an action for the conversion of personal property, the defendant,
Alonzo King, claimed title under a bill of sale from the plaintiff, Alfred
Hackett. Hackett replied that the bill of sale was obtained by duress and
fraud. Hackett was in the employ of King« and was arrested for stealing
money from his employer. He was taken to King's house and then to the
marshal's office, where, after considerable talk, he executed the bill of
•fliale and was discharged without being taken before the magistrate ; the
warrant was never returned. On the trial the defendant offered to prove
facts and certain circumstances which were the basis of his complaint to
the marshal, tending to show that the defendant had stolen money at vari*
•ouB times from his money drawer. To this evidence the plaintiff objected,
on the ground that, it appearing that he had been discharged from the im-
prisonment without being taken before a magistrate, the defendant ought
1 Kendan v. Powers, 45 Mass., 553 (1842).
476 EYIDENGS.
not to be allowed, without prodacing the warrant, to go into parol proof
to ahow probable cause, or that the warrant was justifiable in its inception^
the warrant not having been returned into court and not having been pro>
duoed. The court overruled the objection and allowed the defendant to
introduce in evidence, as circumstances tending to the taking of moneT, thai
the defendant was spending more than his honest income, etc. Upon ex-
ceptions, the supreme court granted a new trial, holding that the admis-
aion of parol evidence to prove the issuing of the warrant against the
plaintiff and his arrest thereon was illegal, and that the warrant could b»
legally proved by producing it or a verified copy of it, unless upon show-
ing that neither it nor such copy of it could be produced. Hackett t. King;
6 Allen (88 Mass.), 69 (1868).
§ 16. Actions for malielons arrest. — la an action for a
malicioas arrest, the plaintiff will have, in the first place, to
prove the fact of arrest. Where the arrest is in consequence
of civil process, the return of the sheriff upon the writ is evi-
dence of the truth of the fact stated in the return.^ If the
plaintiff has been held to bail, this will sufficiently appear
from the indorsement on the writ.' Where the action is for
a malicious arrest on criminal process, and the warrant under
which the arrest was made is lost, it seems that parol evidence
of it will be received, especially if it does not appear that any
information has been taken.' An actual or constructive arrest
must be shown. In a case where a sheriff^s officer, to whom a
warrant upon a writ against the plaintiff had been delivered,
sent a message to the plaintiff and asked him to fix a time to
give bail, in consequence of which a time was fixed and bail
given, it was held that an action for a malicious arrest could
not be sustained against the party suing out the writ, although
he had no cause of action, because neither an actual nor con-
structive arrest had been proved. Where the plaintiff averred
1 8 Phillips' Ev., 674; Gyfford ▼. The affidavit, if alleged to have been
Woodgate, 11 East, 296. Id liojdv. made generally, may be proved by
Harris, Peake*s C, 281, it was con- an office oopj. BulL N. P., 14;
sidered that it was necessary to Gasburn v. Reed, 3 H Moore^ 60.
prove the sheriffs warrant on the On the evidence of arrest under pro-
writ See Jackson v. Burleigh, 8 cess of the sherifTs court, see Arun-
Esp. G., 84. dell ▼. White, 14 East, 216; 8 Phil-
SBuU. N. P., 14; Rogers ▼. Bs- lips' E v., 674, 575.
combe, 2 Esp. Dig.. N. P. C, 8a It 'Newsam v. Carr, 2 Stark. C., 69.
is unnecessary to prove the affidavit That the action should be case,
to hold to bail, unless it is averred. Elsee v. Smith, 2 Chitt, 508L
Webb V. Hearne, 1 Bos. &PulL, 281.
EVIDBNCB. 47T
that the defendant detained him in custody until he found
bail, it was held that he was entitled to recover damages, on
proving some detention, although no bail was put in.^
§ 16. Want of probable cause in actions for malicions
arrests. — "With respect to the proof of a want of probable
cause for arresting the plaintiff, and of malice, it is not suffi-
•cient to show that the defendant suffered judgment of ni>n
pros, in his action against the plaintiff;' nor that the plaintiff
^as arrested after payment to the defendant of debt and costs,
the writ having issued previous to the payment,' unless the
defendant has refused to sign an authority to the sheriff to
discharge the plaintiff out of custody.* Where the defendant
has been the actor in putting an end to the former proceed-
ings, as by voluntarily discontinuing them, and there has
been a very short interval between the arrest and the aban-
donment of the action, the absence of probable cause and
malice on the part of the defendant may properly be left for
the consideration of the jury.' But the mere circumstance of
the discontinuance of a former action does not exclude the
-existence of a probable cause.®
§ 1 7. Proof of damages.— The plaintiff is entitled to dam-
ages for the peril in which his life or liberty has been placed,
for the injury which his reputation has sustained, and the ex-
pense to which he has been put. The plaintiff's right to
damages cannot be resisted on the ground that the proceed-
ings against him were defective, because he is equall}^ subjected
to the disgrace of a criminal charge and put to the same ex-
pense in defending himself against it.^ The questions which
occur in this action respecting the recovery of damages have
been heretofore fully considered in treating of the general
subject of damages.^
^SPhniips'Ev., 574, 575, 576. 880; Spengler v. Dasy, 15 Oratt.
2 3 Phillips' Ev., 576; Sinclair v. (Va.), 881 ; 8 PhiUipe' Ev., 576.
Edred, 4 Taunt., 7. * Brown v. Lakeman, 13 Cash.,
'Payne v. Wyfle, 8 East, 814; 482; Bristors v. Haywood, 1 Stark.
Gibson v. Ghasters, 2 B. & P., 129; N. P. C, 50; 8 Phillips* Ev., 576.
ficheiblev. Fairbarn, 1 B. & P., 888. Tg Phillips' Ev., 578; 2 Greenl.
*B PhiUips' Ev., 576; Crozier v. Ev., §456; Goldsmith ▼. Picard, 27
Pilling, 4 B. & G., 26. Ala., 142; Pippett v. Hearn, 5 B. ft
SBessen v. Southard, 10 N. Y., Aid., 684.
1^; McKeller y. Gauch, 84 Ala., ^ See chapter on " Damages.**
478 EYIDBNOE.
§ 18. Eyldence on the part of the defendant. — The de-
fense in actions for malicious prosecution usuallj consists in
(1) disproving the charge of malice, or in (2) showing the ex-
istence of probable cause for the prosecution in question. If
the defendant succeeds in satisfying the court or jury either
of the want of malice or the existence of probable caase,
his defense must succeed, for if he acted maliciously, but had
reasonable or probable cause, or if he acted without malice in
good faith supposing he had reasonable cause when he had
none, he is not liable to an action for malicious prosecution.
Hence when the burden of the plaintiff has been discharged,
and a prima facie case established, the defendant may, if he
can, overcome it by showing either probable or reasonable
cause for the alleged malicious prosecution or the absence of
malice.^ The subjects of malice, and what is reasonable
or probable cause, have been fully discussed in chapters
relating to such matters, as well as the subject of advice of
counsel as an element of reasonable or probable cause, to
which the reader is referred.
§ 19. Evidence admissible under the general Issne. — Un-
der the general issue, the defendant is ordinarily permitted to
give evidence of any matter ex "post facto which shows that the
cause of action has been discharged, or that in equity and
conscience the plaintiff ought not to recover; ' thus a release,
a former recovery, or a satisfaction may be given in evi-
dence;' the plea of not guilty operates as a denial only of
the wrongful act alleged to have been committed by the de-
fendant,^ and not of the facts stated in the inducement of the
complaint.* Ifo other defense than such denial is admissible
under it. All other pleas in denial take issue on some partic-
ular matter of fact alleged in the declaration.' The defendant
under the plea of not guilty, the general issue, may justify
the proceedings against the plaintiff and show that be had
probable or reasonable cause for the instituting of them ; and
where the alleged prosecution was for a felony, the defendant
has been allowed in his defense, after giving some evidence
1 Bailey's Onus Pre bandi, 187, 188. * 1 Chitty's PL. 518,
s 8 Burr., 1853; 1 Head (TeDn.), 628. » 1 Bing. N. a, 588; 8 DowL, 619,
» Yelv., 174, note 1 ; Stephen's PI., S. C.
183, 188; 2 Bing., 877. « 1 Chitty's PL, 5ia
BVIDENCB. 471>
of probable cause, to prove the geaeral bad character of the-
plaintiff ; for in this case, where the point in issne is whether
the defendant acted from malice and without probable cause^
it may be thought material to inquire into the situation of the
parties, and whether the defendant had any reasonable ground
for suspecting the plaintiff. The notoriety of the plaintiff's
character for dishonesty is a circumstance of general suspi-
cion not to be disregarded.^ In certain cases especially, if tba
plaintiff's conduct has been suspicious on the particular occa-
sion in question, a man with the fairest and best intentions-
might be justified in acting upon such grounds and might
have strong reasons for proceeding against a person of such
notorious character, but a mere inquiry into particular facts,
with a view to reflect on the plaintiff's character, is not to be
allowed.^
§ 20. Matters not relevant to the issue. — It is a well-
settled rule of law that upon the trial of all actions, civil as
well as criminal, matters of evidence not relevant to the issue
are prohibited and inadmissible.
Thb bulb illustrated. —
Matters having no relevaney to the issue.
In an action for malicious prosecution to recover for damages to tb^
plaintiff by reason of bis arrest under a enpias ad respondendum sued out in
an action on tbe case brought by the defendant against the plaintiff for
slanderous words alleged to have been uttered and spoken by the latter,
imputing to the former adulterous intercourse with a certain woman, th»
plfldntiff sought to prove a want of probable cause for the prosecution by
establishing the truth of the alleged slanderous words. It was held that
evidence offered by the plaintiff of indecent exposure on tbe part of the
defendant to the woman with whom the alleged adulterous intercourse
was charged, and her sister, was inadmissible, as having no relevancy ta-
the issue. HitcheU v. Cross, 68 Dl., 8M (1871).
§21. The credibility of witnesses and weight of testi-
mony^ questions for the jnry* — The credibility of a witness-
is a question exclusively for the consideration of the jury ;.
and where a number of witnesses testify directly opposite to
each other, the jury are not bound to regard the weight of
18 Phillips' £v., 674, 676; Rod- 720; Newman v. Carr, d Stark*
riguea v. Tadmire, 2 Esp. N. P. C, N. P. C, 69.
asPhiUips'Ev., 67a
-480 EVIDKNOE.
evidence as evenly balanced. They have a right to deter-
itnine from the appearance of the witnesses on the stand, their
4nanner of testifying, their apparent candor and fairness, their
4ipparent intelligence or lack of intelligence, and from all the
other surrounding circumstances appearing on the trial, which
witness is the more worthy of credit, and to give credit ac-
<5ordNigty*
An illustration. —
Credibility of witnesses, the province of the jury.
Meyers sued Schoonover for malicious prosecution, the latter having
-caused him and two of his infant children to be arrested for the larceny of
.a bee-hive. Meyers was ill at the time the officer came after him, but he
-eabsequently appeared before the justice and waived examination, and
;gave bail for his appearance. The two children were acquitted and dis-
charged after five days* imprisonment. At the circuit court Meyers was
discharged by the state's attorney, the grand jury having found no bUl
^igainst him. Under the plea of not guilty there was a trial and a judg-
«nen for Meyers of $4,500. Schoonover appealed. The case turned upon
'4he testimony of a boy fifteen years old named Brill, who had been living
■in Schoonovei^s family eleven years and who was examined before the
Justice. On the trial he testified that he had been confined and iU-treated
.in various ways by Schoonover to induce him to testify falsely. The evi-
<dence was contradicted in many particulars, and an attempt was made to
.impeach him. The suprepie court affirmed the judgment. In the opinion,
'Catenae. J., said: "This case presents a most extraordinary spectacle.
Barely have we met, either in the books or in our other experiences, so re-
*'«roIting a case of conspiracy, subornation of perjury, and perjury, as this
N record presents; and the difficulty in the case is to determine which is
-"the guilty party, and which is the victim. We have carefully studied all
'Che evidence in the light of the very lucid arguments on both sides, and we
«hall hav« doubts hanging about us whether the boy is an abandoned,
,f>erjured little villain, as one party insists, or a friendless waif cast upon
>the world, «rhom the defendant, by the most inhuman cruelty, sought to
«tnold to hie own wicked purposes. The whole case really depended on the
-credibility of this witness, and the jury believed him, and in this case we
cannot say they were wrong, nor could we have reversed their finding had
they disbelieved him and found the other way, though we should have
he^VL as much inclined to do so then as we are now.** Schoonover v.
Meyers, 28 Ul., £08 (1862).
§ 22, False Imprisonmeiit. — In actions for false imprison-
^<tnent, the ^burden of showing the imprisonment to be illegal
.and withoat authority of law is upon the plaintiff; bat he need
1 Wallace v« state, 28 Ark., 581; Holloway v. Com., 11 Bush, 844; Stam-
a^fski V. Steffens, 79 111., 808.
EVIDENCE, 481
not show that the defendant used violence, or shut him np ia
a jail or prison, or even laid hands on him: it is safBcient to
fihow that he was restrained of his liberty, detained from going
where he wished or doing as he desired.* Upon proof of the
imprisonment being made, it will be presumed to have been
against the plaintiff's will.'
§ 28. Burden of proofs when upon the plaintiff to show
the imprisonment false. — As a general proposition of law, it
is only necessary for the plaintiff in actions for false imprison-
ment to show that he has been restrained of his liberty. The
presumption then arises that his restraint was unlawful, and
the burden of proving a justification, if any exist, is upon the
defendant. But when the plaintiff goes further than this and
shows that such imprisonment was caused by a complaint
before a magistrate, the issuing of a warrant upon such com-
plaint, and a trial and examination under it, the burden of
proof is upon the plaintiff to show that the proceedings were
invalid or irregular, the presumption of law being in favor of
the regularity of judicial proceeding even in courts of limited
jurisdiction.'
As BZOBFTION TO THE RULE ILLTJSTBATED.
The plaintiff must show the imprisonment falser wheru
Barker sued Anderson for false imprisonment. Anderson was mayor of
the city of Iron Mountain, and made complaint against Barker before a
justice of the peace. Upon this complaint Barker was arrested, tried,
found guilty and fined $20 and costs or thirty days' imprisonment in the
county jail. He was taken to the jail and confined twelve days, when he,
was released on habeas corpus. Before he went to jail he was locked up
in the city lock-up about two hours. The complaint was for peddling with-
out a license from the city of Iron Mountain. This suit resulted in a ver-
dict and judgment for $1,000. On that trial no attempt was made to jus-
tify the arrest and imprisonment, and no testimony was offered on the
IMurt of the defense. The plaintiff testified substantially that he was ar-
rested in April, 1889, in the city of Iron Mountain, by a person whom he
thought was a police officer, and was taken before a justice of the peace. He
asked to have the case continued until the next day, which was granted.
iCooley on Torts, 169; Buller's ^Saund. PI. & Ev., 516; Bailey's
N. P., 22 ; 2 Leigh, N. P. , 1487 ; Hawk Onus Probandi, 123.
V. Ridgeway, 83 Bl., 473 (1864); 2 'Love v. Wood, 55 Mich., 451; 21
8aund. PI. & Ev., 520; UnderhiU N. W. Rep., 887; Barker ▼. Ander-
(Moak's), Torts, 177, rule 8; 2 Addi- son, 81 Mich., 508; 45 N. W, Rep.,
aon, Torts, §§ 798, 799, 843. 1108 (1800).
81
482 ETIDENOE.
Afterwards, in the course of an hoar or so, he went hack and said : *' I have
changed tnj mind, and if it is convenient I will proceed at once with the
trial," and it was done. The complaint was signed by Anderson, and plaint-
iff was told that he was mayor of the city. It was not shown that he had
anything to do with the proceedings except to make the complaint. The
justice testified that Anderson made the complaint On the trial the judge
instructed the jury that the plaintiff made out his case by showing the
arrest and imprisonment ; that it was then the duty of the defendant, if he
had any justification, to show it. ** He has not done so, so that he stands
here as liable for the false imprisonment, and the only question for yoa,
therefore, is to assess the damages.** On appeal it was assigned as error
that the court erred in stating that the plaintiff made out his case by show-
ing the arrest and imprisonment as above quoted.
In delivering the opinion of the supreme court, Morse, J., said: *'As
a general proposition, it must be admitted that it is only necessary for the
plaintiff, in an action of this kind, to show that be has been imprisoned
or restrained of his liberty. The presumption then arises that he was un-
lawfully imprisoned, and it is for the person who has committed the tres-
pass to show that it was legally justified. But the counsel for the defend-
ant contends that the plaintiff having shown ' that he was imprisoned as the
result of legal proceedings, that a complaint was made, a warrant issued,
the form of a trial gone through with, resulting in his conviction and the
issuing of a commitment, under the color of which he is imprisoned, the
jury should have been instructed to find a verdict for defendant,* as the
presumption is in favor of the regularity of judicial proceedings even in
courts of limited jurisdiction; citing, in support of his contention, the case
of Love V. Wood, 55 Mich., 451 ; 21 N. W. Rep., 887.
" Under the circumstances of the plaintiff*s proofs we think the defendant
was entitled to a verdict. In actions of this kind it is for the plaintiff to
show, not only that he was restrained of his liberty, but that the restraint
was unlawful. The name of the action implies that the imprisonment is
false, and no action could be supported against any restraint which was
lawful. The mere fact that a person has been imprisoned is suflScient in
itself, standing alone, to raise the presumption that it was illegal ; but when
the plaintiff goes further, and shows, as he did in this case, that such im-
prisonment was caused by a complaint before a magistrate, the issuing of
a warrant upon such complaint, and a trial and conviction under it, and
that the chief damages resulted from the imprisonment under the commit-
ment of the magistrate upon such conviction, the burden must be on the
plaintiff to show that the complaint was invalid.** Judgment reversed.
Barker v. Anderson, 81 Mich., 508; 45 N. W. Rep., 1108 (1890).
§ 24. Irregularities and informalities of proceedings —
Process, etc, — In cases where the action is founded upon
irregularities or informalities in the process or proceeding,
the burden of showing the same is upon the plaintiff.^ For
iBradstreet V. Furgeson,23Wend. bandi, 122, 123; Abbott's Tr. Ev.,
(N. Y.), 638 (1840): 7 Am. & Eng. 657.
Ency. Law, 689 ; Bailey's Onus Pro-
EVIDENCE. 483
example, if he relies upon the failure of the judgment to sup-
port the process against him, he must show the judgment, the
defect relied upon, and that the process was issued upon the
judgment in question.^
§25. Want of reasonable cause. — It is not quite clear
from the authorities that the burden of proving a want of
probable cause for bis arrest and imprisonment is upon the
plaintifiF in actions for false imprisonment. The proof, if
necessary, however, is made by evidence of the restraint
itself, it being a negative averment, and the means of justifi-
cation more peculiarly within the possession or knowledge
of the defendant.* It seems to have been held in New York
that the want of probable cause is an essential element of the
plaintiff^s case in actions for false imprisonment; but if such
a principle is applicable to this action, it is difficult to see why
it is not also applicable to actions for assault and battery.'
§ 26, The rule stated. — Whenever an arrest has been
made without authority of law the offense of false imprison-
ment is complete; and while many cases speak of probable
cause or reasonable grounds of suspicion as affording justifi-
cation, it will be found that these cases discuss the right of
magistrates, officers or others to arrest or cause arrests on
suspicion merely, and in which reasonable suspicion is a suffi-
cient authoritv for the arrest.*
§27. Malice In actions for false imprisonment. — Malice
is not an essential element to be proven in actions for false
imprisonment, although it is always competent to be shown in
aggravation of damages.*
§ 28, General damages. — Upon making out a prima facie
case the plaintiff is entitled to some damages. The amount
iBarhydt v. Valk, 12 Wend. (N. 451 (1874); Carl ▼. Agere, 63 N. Y..
Y.), 145 (1834); Brown t. Dement, 14 (1873); Abbott's Tr. Ev,, 657;
9 Cow. ^N. Y.). 263 (1828); BaUey's Bailey's Onus Ptobandi, 128.
Onus Proband!, 657; Abbott's Tr. <7 Am. & Eng. Ency. Law, 688
Ev., 123. note 8. And see Hawley ▼. Butler, 54
2 Martin V. Fabrigas, 1 Smith L. C, Barb. (N. Y.), 490 (1868); Gtorton v.
340; Bailey's Onus Probandi, 123; De Angelis, 6 Wend. (N. Y.), 418
Haupt V. Pohlman, 16 Abb. Pr. (1831); Boaz v. Tate, 43 Ind., 60
(N. Y.), 301 (1863). (1873).
•Hawley v. Butler, 54 Barb . 490 spiat v. Niles, 1 Edm., 230; Ab-
(1868); Farnham v. Feeley, 56 N. Y., bott's Tr. Ev., 657.
484 EVIDENOR.
depends upon the facts and circumstances attending the trans-
action.^ The restraint being shown to be illegal, the plaint-
iff has always a right to recover such damages as shall
fully compensate him, keeping in mind that they are not too
remote.*
The amount of damages to be recovered depends upon the pe-
culiar circumstances of each particular case, and no rule can be
laid down. Of the amount the jury are the exclusive judges
under the evidence, and their findings will not in general be dis-
turbed, unless they are so extravagant as to make it probable
that their action is the result of passion or prejudice rather
than clear deliberation.'
§29. Compensatpry damages. — As elements of compen-
satory damages, the plaintiff may, on the trial, introduce in
evidence:
(1) Expenses reasonably incurred to procure his release
from imprisonment.*
(2) Eeasonable attorney fees,* though the rule is not uni*
form in all the states.'
(8) Loss of time; interruption of business; bodily and men*
tal suffering occasioned by the imprisonment; ^ suffering from
cold and want of food in jail; shame, humiliation, eta
(4) Insult and humiliation.*
•
1 Bailey's Onus Probandi, 123. Bonesteel v. Bonesteel, 80 Wis., 511
>BODesteel v. Bonesteel, 80 Wis., (1872); Parsons v. Harper, 18 Qratt.
511 (1872); Newton v. Lacklin, 77 (Ya.), 64 (1860); Blythe v. Thomp-
Dl., 103 (1875); Gary v. Shuts. 60 kins, 2 Abb. Pr. (N. Y.), 468 (1856).
Ind., 17 (1877); Van Dusen v. New- « Strang v. Whitehead, 12 Wend,
comer, 40 Mich., 90 (1879); Brad- (N. Y.), 64(1834); Ocean S. a Co. v.
laugh V. Edwards, 11 C. B., 377; 7 Williams, 69 Ga., 251 ( ); Gibbe
Am. & Eng. Ency. Law, 690. v. Randiett, 58 N. H., 407 (1878).
'Schlenecker v. Risley, 8 Scam. ? Parsons t. Harper, 16 Gratt.
(ni.), 488; 88 Am. Dec, 100 (1842); (Va.), 64 (1860); Abraham v. Cooper,
Woodward y. Glidden, 33 Minn., 81Pa.St, 2d2(1876);FeneIony.Btttt8,
108 (1884); Ogg v. Murdock, 25 W. 53 Wis., 344; 10 N. W. Rep., 501
Va., 139 (1884). (1881) ; Stewart v. Madden, 63 Ind.; 61
* Blythe v. Thompkins, 2 Abb. Pr. (1878); Jay v. Almy, 1 Woodb. &
(N. Y.), 468 (1866); Pritchett v. M., 262; 7 Am. & Eng. Ency. Law,
Boevey, 1 Cro. & M., 775; Ocean 8. 691.
S. Co. V.Williams, 69 Ga., 251 ( ); «Catlin v. Pond, 101 N. Y., 649
7 Am. & Etig. Ency. Law, 690. (1886); 7 Am. & Eng. Ency. Law,
•Krug V. Ward, 77 111., 603 (1875); 691.
BYIDBNOA. 485
(5) Loss of employment up to the time of suit, if by reason
of bis arrest be failed to get tbe work he otherwise would
have obtained.^
(6) Loss of employment and damages not accrued at the
time of suit, when they are certain to follow, and can be fairly
estimated.^
(7) Injury to the feelings and anxiety of mind.*
(8) Condition of tbe plaintiff's family during his imprison-
ment, etc.*
(9) Malice, bad motives in making the arrest, or in continu-
ing tbe imprisonment, wantonness, oppression, negligence,
and a careless regard for another's rights may be shown for
the purpose of recovering exemplary or punitive damages be-
yond what is in law considered compensatory damages.'
§ 30. Special damages. — If the plaintiff claims special
damages, the burden is upon him to show the same by com-
petent evidence in line with the allegations of his complaint,
bat he may show matters in aggravation of damages whether
stated in his complaint or not.*
§ 31. The defendant's evidence. — If the defendant relies
upon the plea of the general issue alone, the burden of proof
is upon the plaintiff; but if he relies upon a plea of justifica-
tion, he confesses and avoids the cause of action, and the bur-
den is upon him to prove his defense by competent evidence.^
1 American Express Co. v. Patter- 48 (1871) : McCarthy t. De Aemett,
son, 78 Ind., 430 (1881); Thompson v. 99 Pa. St., 63 ( ); Sorenson v.
Ellsworth, 89 Mich., 719 (1878); 7 Dundas, 60 Wis.. 885 (1880); HaU v.
Am. & Eng. Ency. Law, 691. O'Mally, 49 Tex., 70 (1878) ; Curry
'American Express Ck). V. Patter- v Pringle, 11 Johns. (N. Y.), 444
son, 78 Ind., 430(1881). (1814); BisseU v. Gold, 1 Wend.
•McCaU T. McDowell, Deady, 283 (N. Y.), 210; 19 Am. Dec, 480(1828);
(1867). Fellows v. Goodman, 49 Ma, 63
*Fenelon v. Butts, 53 Wis., 344; 10 (1871); Comer v. Knowles, 17 Kan.,
N, W. Rep., 601 (1881); Dodge v. 436 (1877); Ogg v. Murdock, 26
Alger, 58 N. Y. Sup. Ct, 107 ( ); W. Va., 189 (1884).
7 Am. & Eng. Ency. Law, 691. « Abbott's Tr. Ev., 657; 2 Saund.
»Hamlin v. Spaulding, 27 Wis., PI. & Ev., 520; 2 Leigh. N. P.. 1480,
860 (1870); Floyd v. Hamilton, 88 1431; Staunton v. Seymour, 6 Mo-
Ala., 235 (1858): Kolb v. Bankhead, Lean, 267 (1851); Hatchell v. Kim-
18 Tex., 228 (1856) ; Marsh v. Smith, brough, 4 Jones' L. (N. C), 168 (1856);
49 ni., 896 (1868); Josselyn y. McAl- 2 Addison on Torts, 845.
lister, 22 Mich., 800; 25 Am. Dec, « Bailey's Onus Probandi, 128.
480 EVIDBNOB.
§ 32. What nifty be shown under the plea of the general
denial. —
(1) In bar of the action: Any matters which amount to
a denial of the commission of the acts complained of as al-
leged in the complaint or declaration ; as that the act was
accidentally done, or by a superior agency, without any
fault of the defendant.^ Under this plea the defendant
may give in evidence any matter tending to disprove the
facts shown by the plaintiff in making out his case.^ Bat
evidence of every defense which admits the defendant to have
been ^rma facie a trespasser cannot be given under this plea.
It must be specially pleaded. Thus, for example, if the injury
was occasioned by the plaintiff's own negligence, or was done
by the defendant from any other cause, short of such extra-
neous force as deprived him of all agency in the act, it can«
not be shown under this issue, but must be specially pleaded ; *
but any matters which go to show that the defendant never
did the acts complained of may be given in evidence under
the general issue.
Evidence of all matters in discharge or justification must be
specially pleaded;^ as, a former recovery,' accord and satisfac-
tion,^ or the statute of limitations,^ must be specially pleaded.
So an officer wishing to justify under legal process must plead
it specially.^ And matters in mitigation of the wrong and
damages may be given in evidence under the general issue.'
(2) In mitigation of damagee: Under the general issue the
defendant may rely upon any part of the ree gestee for the pur*
pose of mitigating damages, though he might have pleaded
them in justification, and this, notwithstanding the general
rule that whatever is shown in justification must be specially
1 2 Green]. Ev., § 92. • 1 Chit. PI. (1 1th Am. edX 50C Sea
« 2 Greenl. Ev., § 625; 1 Chit. PL 2Giliii., 262.
(llch Am. ed.). 500. ? 1 Chit. PL (11th Am. ed.\ 506.
s 2 GreenL Ev., § 625; 1 Chit. PL See 28 DL, 899.
(11th Am. ed.), 501; 2 Camp., 500. «1 Chit. PL (llth Am. ed.), 501,
♦Id.; 12 IlL. 80; 81 Vt., 483; 19 506, 534.
N. H., 562; 8 HurL & Nor., 276; 82 *2 GreenL Ev., § 625; 8 HurL A
Barb., 293. Nor., 276; 81 Vt., 488, 624. See 6
01 Chit. PL (llth Am. ed.), 501, AdoL & El., 174 (N.&).
506; 12 IlL, 80; 1 Blackf., 169; 6
0>w., 691.
EVIDENCE.
48T
pleaded. Everything which took place at the time is part of
the transaction on which the plaintiff's action is founded, and
therefore he cannot be surprised by the evidence;^ but the
evidence should be offered for the purpose of mitigating dam-
ages, and not as a justification of the acts complained of.'
Where the action was for an assault and false imprisonment,
evidence of a reasonable suspicion of felony has been held ad-
missible as a mitigation of damages.' A justification which
is not in issue is not admissible in bar under a denial, unless
the facts may be available if offered solely in mitigation of
damages.* To show good faith, the defendant may give in
evidence any communication actually made to him before he
acted, and which influenced his action.^
12 Greenl. E v., §98; Abbott's Tr. « Brown v. Chadsey, 89 Barb.
Ev., 657; 8 PhUlipe' Ev., 518. (N. Y.), 258 (1863).
2 Brown v. Chadsey, 39 Barb. » Abbott's Tr. E v., 658; Thomas v.
(N. Y.), 258 (1868); Abbott's Tr. Ev., RusseH, 9 Ex., 764. See chapter on
657. '* Damages."
>2Greenl. Ev., §98.
CHAPTER XIV.
DAMAGEa
§ 1. Damages — The term defined.
2. The right of recovery.
8. Damages in actions for malicious prosecutioii*
4. In actions for false imprisonment.
5. The subject of this chapter.
L Elebibnts of Daicaobs.
0. Elements of damages in false imprisonment.
7. Absence of malice.
8. Elements of damages in actions for malicious prosecatlon*
9. Elements of damages — Examples, etc.
Applications of the law.
(1) Evidence of treatment in prison ^ When not competent.
(2) Merchant*s loss of credit, etc., as an element of exenaplarj
damages.
(8) Pecuniary circumstances of the parties may be shown by the
plaintiff, when.
(4) Attorney*s fees an element of damages.
(5) Attorney's fees — Another application.
(6) Traveling expenses to and from court — Attending trial —
Loss of time — Attorney's fees, eta
(7) Insanity and mental aberration, when an element of dam-
(8) Mental anxiety, trouble and distress an element of dam-
ages.
. (9) Character of the plaii^tiff an element of damages.
n. Assessment of Dak^qes.
10. Assessment of damages — The term defined.
(1) Upon the trial of the issue.
(2) Upon default or demurrer.
11. What the defendant may show upon default or demniren
12. Assessment of damages — Discretion of the jury.
Applications of the law.
An inquest set aside for allowing evidence in jnrtifloalio^
etc., after default
18. The rule in actions for false imprisonment.
14. Damages must be assessed jointly.
DAMAGES. 48^
IIL lirnoATiON of Damaqis.
§ 15. Mitigation of damages ^ The term deflnecL
16. Mitigation of damages — Circumstances may alter the case.
Applications of the law.
(1) What matters attending the arrest may be shown in mitiga.
tion of damages.
(2) Motives in making ^n affidavit for the arrest.
(8) Persuaded by another to make an affidavit, eta
(4) Persons making an arrest under a void warrant.
17. Facts tending to show probable cause in mitigation of damages.
18. Plaintiffs general bad reputation in mitigation of damages.
Applications of the law.
(1) Plaintiffs general bad reputation proper to mitigate dam-
ages.
(2) PlaintiiTs* character in regard to particular traits inadmis-
sible unless involved in the charge against him.
19. Plaintiff's bad character competent in mitigation.
20. What kind of damages subject to mitigation.
21. Compensatory damages not subject to mitigation.
Application of the law.
What kind of damages are subject to mitigation ^ Circam-
stances.
rv. Aggravation of Damages.
22. Aggravation of damages.
v. Nominal Damages.
24. Nominal damages — The term defined.
25. Discussion of the subject.
Applications of the law.
(1) Imprisonment under two commitments ^ One valid, the
other void.
9) Illegal arrest made through misleading statements of the
person arrested.
(8) Nominal damages — When proper.
VL Compensatory Damagx&
20, Compensatory damages — The term defined.
VIL Exemplary Damages. .
27. Exemplary damages — The term defined.
28. The law stated by Justice Oner.
29. The law stated by McAllister, J.
80. The general rule.
81. Exemplary damages — A question for the jury — The law stated l^
Walker, J.
82. No exemplary damages where no actual damages exist.
88i Corporations liable in exemplary damages.
490 DAMA&SS.
g 84 The right to exemplary damages does not depend apon the
ence of malice in its ordinary sense.
Applications of the law.
(1) Two thousand seven hundred and fifty dolIarB, not exoesB-
ive,
(2) One thousand dollars sustained.
(8) Pecuniary condition of the defendant, etc
85. The rule in some states.
VIII. Excessive Daicages.
86. Excessive damages ^ The term defined.
87. Motion for new trials — For excessive damages.
Applications of the law.
A. In cases where the damages have been held to be exoesmrew
(1) $1,000 — On a technical arrest.
(2) $1,055.55 — Prosecution for malicious mischief.
(8) $6,000 — Illegal arrest.
(4) $9,000 — Arrest on a charge of treason.
(5) $20,000 — Illegal arrest on a charge of stealing ooal.
B. Cases where the damages have been held not to be excess-
ive.
(1) $125 — For false imprisonment.
(3) $750— Wrongfully causing an attachment to be levied
on exempt goods.
(8) $825 — Justice perverted for purpose of private oppres-
sion.
(4) $900 — Larceny of a saw handle — value $0.25.
(6) $ 1 ,000 — Arrest without reasonable grounds of suspicion.
(6) $1,000— Maliciously procuring an indictment.
(7) $1,000 — Abuse of process.
(8) $1,000 — Arrest upon charge of conspiracy.
(9) $1,200 — Arrest upon a charge of burglary.
(10) $1,272 — Malicious arrest and imprisonment for larceny.
(11) $1,500 — Malicious prosecution.
(12) $1,700 — An aggravated false imprisonment
(18) $2,000 — Maliciously suing out a writ of attachment.
(14) $8,000 — Illegal arrest for refusing to give up a child.
(15) $4,000 — Illegal arrest for forcibly entering a house.
(16) $5,000 — On charge of burning warehouses.
(17) $8,000 — Prosecution of witness against the company in
damage suits for perjury.
(18) $10,000 — Illegal arrest for embezzlement.
88. New trials for excessive damages.
IX. Consequential Damages.
39. Consequential damages.
40. The rule in actions for malicious prosecution and false imprison-
ment.
Applications of the law.
(1) Attorney's fees not consequential
DAMAGES. 491
Imprisonment of pregnant woman — Effect on offspring,
too remote.
(8) Disposition of assets after dissolution of attachment too re-
mote.
X. Measubb of Damaqbs.
§ 41. Measure of damages.
42. The law stated by Qreenleaf.
Applications of the law.
(1) Voluntary submission to imprisonment under a void writ.
(2) Measure of liability — Prosecutors acting in good faith.
§ !• Damages. —
The term defined: A sum of money adjudged to be paid by
one person to another person as compensation for a loss sus-
tained by the latter in consequence of an injury committed
by the fonner* or the violation of some legal right.
The measure of damages: The test by which the amount of
damages is ascertained is called the measure of damages.'
§ 2. Damages^ right of reeovery — Tlie law stated by
Oreenleaf. — Whether the plaintiff has been prosecuted by
indictment, or by civil proceedings, the principle of awarding
damages is the same, and he is entitled to indemnity for the
peril occasioned to him in regard to his life or liberty, for the
injury to his reputation, his feelings, and his person, and for
all the expenses to which he necessarily has been subjected;'
and if no evidence is given of particular damages, yet the
jury are not therefore obliged to find nominal damages only.*
Whore the prosecution was by suit at common law, no dam-
ages will be given for the ordinary taxable costs, if they were
recovered in that action ; but if there was a malicious arrest,
or the suit was malicious and without probable cause, the ex-
traordinary costs, as between attorney and client, as well as
all other expenses necessarily incurred in defense, are to be
taken into the estimate of damages.^ Whatever was admissi-
ble in evidence to defeat the original malicious suit is admis-
iCk>ke on Littleton, 257a; Mayne ^Sandback v. Thomas, 1 Stark.,
on Damages, 1 ; Rap. & L. Law Die, 806 ; Qould v. Barratt, 2 M. & Bob.,
tit. Damages (1888). 171; 3 Greenl. Ev., g 456. And see
21 Rap. & L. Law Die, 886 (1888). Doe v. Davis, 1 Esp., 858 { );
S2 Greenl. Ev., §^; Buller's Nisi NorveU v. Boake, 7 B. & C, 404
Prias, 13, 14; Thompson v. Mussey, ( ); Sinclair v. Eldred, 4 Taunt,
8 GreenL, 805. 7 ( ); Webber v. Nicholas, By. &
«Trlp y. Thomas, 8 a & C, 427. M., 417 (1825).
492 DAMAGES.
sible for tbe plaintiff in this action to maintain his right to
recover for tbe injury sustained.^
§ 3. Damages in actions for malieions prosecntions. — The
elementary books in treating of damages in actions for mali-
cious prosecution lay down the rule that there are three de-
scriptions of damages, either of which is sufficient to support
the action, and some one of them must appear or the action
will fail. These different kinds kinds of damages are —
I. To the person by imprisonment,
II. To the reputation by scandal.
III. To the property by expense.
This rule of damages was evidently established after the
enactment of the statute of Marlbridge, giving to a defendant
his costs in the event the plaintiff was nonsuited or failed in
his action, for at common law prior to that enactment, ac-
tions for malicious prosecutions could always be maintained,
whether the property of the defendant had been seized or not,
or whether he had incurred expense in defending it; and re-
garding them as now, the bringing of a civil action to be a
matter of right, the plaintiff was liable in damages for the
malicious institution and prosecution of such an action with-
out probable cause.'
§ 4. Damages in actions for false imprisonment. — The
injured party, in actions for false imprisonment, even though
the act complained of be done without malice, is entitled to
recover the expenses reasonably incurred to procure his dis-
charge from the restraint, for his loss of time, interruption of
his business, and the suffering, bodily and mental, which the
wrong may have occasioned.' Where the arrest is unlawful
it is unnecessary to prove malice,* and probable cause is only
admissible in mitigation of damages.*
iHadden v. MUls, 4 C. & P., 486 Wis., 844 (1881); 8 Sutherland on
( ). Damages, 782 (1888).
« Woods V. Finnell, 18 Bush (Ky.), * Painter v. Ives, 4 Neh., 138 (1874) ;
628 (1878); 2 Ck>oley*8 Blackstone, Chesman v. Carney, 88 Ark., 816
126 and notes; Selwyn's Nisi Prius; (1878).
Saville v. Roberts, 1 Ld. Raymond, ^ Brown y. COiadsey, 89 Barb., 258
374. (1863); Norman v. Marsciette, 1
•Kindred v. Still, 61 HI., 401 Sawyer, 484 (1871); Sleight v. Ogl«b
(1869); Abrahams v. Cooper. 81 Pa. 4 £. D. Smith, 445 (1855>
St, 282 (1876) ; Fenelon v. Butts, 53
DAMAGES. 493
§ 5. The snbjeet of this chapter. — The subject of damages
^vill be discussed in this chapter as relating especially to ac-
tions for malicious prosecution and false imprisonment. For
the sake of convenient reference the subject may be divided
into topics as follows:
I. Elements of damages.
11. Assessments of damages.
IIL Mitigation of damages.
lY. Aggravation of damages.
V. Nominal damages.
YL Compensatory damages.
VII. Exemplary damages.
Vlll. Excessive damages.
IX. Consequential damages.
X. Measure of damages.
I. Elements of Damages.
§ 6. Elements of damages in false Imprisonment. — The
plaintiff may recover for loss of work not only up to the time
of the suit, but also for time lost after the suit, if by the arrest
he can show he failed to get the work he otherwise would
have obtained.^ He may show the filthy condition of the
prison in which he was confined or any other deprivation of
the comforts or necessaries of life, or mental anguish, for the
purpose of enhancing his compensatory damages.^ He may
show that the defendant was actuated by actual malice in
causing the arrest for the purpose of aggravating his damages.'
§ 7. Absence of malice. — The absence of malice and proof
of good faith in making the arrest or of the imprisonment
can never be a justification for an unlawful imprisonment, nor
•exempt the defendant from the payment of actual damages,^
1 Thompson V. Elsworth, 89 Mich., Lloyd, 8 A. ft EL, 449; Baker v.
719(1878). Braham, 8 Wils., 868; Turner v.
2 Abrahams v. Cooper, 81 Pa. St, Telgate, 1 Lev., 96; Parsons t. Har-
1S83 ( 1856) ; Fenelon v. Butts, 68 Wis., per, 16 Gratt , 64 ; Parsons y. Lloyd,
844(1881); Kindred v. Stett, 51 BL, 8 Wils., 841; 3 W. Bl., 845; Cony
401 (1869). V. Pringle, 11 Johns. (N. Y.), 444
* Josselyn v. McAllister, 22 Mich., (1814); Warwick v. Foulkes, 12 M. ft
800 (1871); Fellows v. Goodman, 49 W., 507; 8 Sutherland on Damages,
Mu., 62 (1871); Gold v. Bissell, 1 782(1888).
Wend., 210 (1828); Codrington y. « Comer ▼. Knowles, 17 Kan., 440
49:1: DAMAGES.
but may be shown for the purpose of mitigating exem-
plary damages. Exemplary damages, as they are sometimes
called, are not allowed against a person who makes an illegal
arrest, unless it is shown that he has acted in bad faith or is
guilty of some oppression or misconduct;^ but where it is
shown that the defendant has acted in bad faith, the jury will
be warranted in allowing liberal damages.' As malice may
be shown to enhance the damages, so the absence of malice
may be shown to reduce them.' Evidence of good faith is
therefore competent and generally admissible in mitigation of
damages.^
§ 8. Elements of damages in actions for malicioas prose-
ention. — For this wrong the injured party is entitled to ade-
quate compensation covering all the elements of the partic-
ular injury. It is the duty of the jury to consider the nature
of the prosecution, and its natural effect on the reputation
of the person injured, his credit and private feelings; the
incidental consequences of an arrest, holding to bail, or of
interference with property; the consequential loss of time, and
any other loss, such as the expense of defending one's self and
the like. Malice is the gist of this action, and the damages
for other than pecuniary items may be greatly increased or
diminished by the evidence on that subject.*
§ 9. Elements of damages — Examples. — The damages
for malicious prosecutions may consist in the personal labor
and trouble imposed on the injured party in procuring an
acquittal or discharge, the pain and anxiety of mind natu-
rally occasioned by the pendency of a criminal charge; the
time imprisoned, his expenses, situation and circumstances;*
(1877); Newton v. Locklin, 77 III., *8 Sutherland on Damages, 733
103 (1875); Carey v. Sheets, 60 Ind., (1883).
17(1877); VanDeusen V. Newcomb, *Fenelon v. Butte, 53 Wis., 344
40 Mich.. 90 (1879); McCrell v. Mc- (1881); Brown v. Clfadsey, 89 Barb.,
Dowell, Deady, 233 (1867); Painter 262(1863).
V. Ives, 4 Neb., 122(1874). *3 Sutherland on Damages, 707
^La Roe v. Rosser, 8 Mich., 587 (1883); Parkhurst v. Masteilar, 67
(1860); Dinsman V. Wilke, 12How., Iowa, 474 ( ); McWilliams v.
405 (ia51); Hamlin v. Spaulding, 27 Hoban, 42 Md., 56 ( ); Wanzer v.
Miss., 360 (1868). Bright 52 111., 35 (1869).
2 Marshy. Smith, 49 111., 399 (1868); «3 Sutherland on Damages, 704
Fellows y. Goodman, 49 Mo., 62 (1883).
(1871).
DAMAGES. 495
the unlawful arrest and imprisonment/ expenses of making a
defense, injury to his fame and reputation;^ the ignominy
of being arraigned at the bar of justice as an offender against
the laws;* annoyance, injury to his feelings; • the costs and
expenses of defending a groundless suit, including counsel fees,^
and all consequential damages which naturally and proxi-
mately result therefrom. In an action for maliciously and
without probable cause procuring a merchant to be adjudged
a bankrupt, under which adjudication, before the proceeding
was dismissed, he was deprived of his entire stock of goods
and his store shut up for three months, it was held he was en-
titled to recover the actual damage to his goods, for the break-
ing up of his business and the destruction of his credit, the
value of his own time, as he was obliged to give his attention to
the proceedings instituted against him, and was not able to
pursue any other business, and his expenses for lawyers' fees in
following up and setting aside the proceedings in bankruptcy.*
In another case a party holding a lease of a mine for a speci-
fied time was ejected under a judgment in an action of forci-
ble entry and detainer which was afterwards reversed. In an
action for malicious prosecution, it was shown that the forcible
entry and detainer proceedings were instituted maliciously
and without probable cause. The measure of damages was
held to be the reasonable value of the use of the premises for
the time the plaintiff had been kept out of possession; and for
any permanant injury to his leasehold interest sustained by
reason of the mine getting out of repair through the failure
of the defendant to use ordinary care during the time he held
possession.^
But in assessing the damages the expenses of prosecuting
the action for malicious prosecution are not deemed the nat-
ural and proximate consequence of the wrong complained of,
1 Sheldon v. Carpenter, 4 N. Y., Woods v. Finnell, 18 Bush (Ky.),
679. 628 (1878).
* Thompson v. Massey, 8 Greenl., * Sonnebom v. Stewart, 2 Woods,
805 ; Fagan v. Knox, 40 N. Y. Super. 599. But see same case, 98 U. S. , 187 ;
Ct., 41. Fullenweider v. McWiUiams, 7
SRowlandv. Samuels, 11 Q. B., 89. Bush, 889; 8 Sutherland on Dam-
^Classon ▼. Staples, 42 Vt., 209; ages, 706.
< Moffatt T. Fisher, 47 Iowa, 478.
490 DAMAGES.
and cannot be taken into consideration.^ In cases of this nat-
ure there is no settled rule as to the amount to be recovered.
The jury are not confined to the actual pecuniary loss sus-
tained, but may take into consideration the character and
position of the parties and all the circumstances attending the
transaction.'
Applications op the law. —
(1) Evidence of plaintiff's treatment inpnson^ when not competent,
John W. Storey brought an action against John Zebley, Jr., for a mali-
cious prosecution; The first trial resulted in a verdict for the plaintiff, but
it was set aside and a new trial granted. At the second trial there was a dis-
agreement of the jury. The third trial resulted in a verdict and judgment
for the plaintiff, and this the defendant brought to the supreme court on a
writ of error. On the trial in the supreme court it was claimed that tiie
trial court erred in overruling the defendant's objection to the plaintiff's
offer to show the condition of the cell and all that occurred there, and his
surroundings there. The plaintiff was arrested upon a charge of obtaining
certain merchandise from the defendant's firm by means of false pretenses.
At the hearing before the alderman he was committed to the county prison
in default of bail, where he was confined for twenty-seven days, when
he was brought up on a writ of haheoi corpus before Judge Brewster, and
discharged. Upon the trial below the plaintiff ivas allowed to testify,
against the objection of the defendant, as to his treatment while there.
He said: " When I went to prison I received two very narrow blankets,
and tin dishes, no knife or fork. I slept on the floor. I was there twenty-
eeven days. . . . Oot nothing to eat from time I left boarding-house
till next morning. Room was filthy. Stool with no cover to it. The men
made water in it at night, and it ran over." The witness had previously
said that he had been sent down in the van with two other prisoners, "one
drunk and spewing."
In discussing this assignment, Pazson, J., said: "This testimony could
hardly fail to inflame the minds of the jury and enhance the damages.
And if the treatment referred to had been the act of the defendant, he
would have no reason to complain of the admission of the evidence. But
it is a matter with which he had not.iing to do. He is not responsible for
the way in which the county of Philadelphia, acting through its officials,
treats persons confined in the county prison. He is r^esponsible for the un*
lawful restraint of the plaintiff's liberty, if he has so restrained it, but it
would be unreasonable as well as unjust to hold him liable for the acts cr
conduct of public officials over whom he had no control. We are of the
opinion that it was error to admit this testimony." Zebley v. Storey, 117
Pa. St., 478; 12 Atl. Rep., 569 (1888).
I Stewart v. Sonneborn, 98 U. S., Stopp v. Smith, 71 Pa. St, 885;
187; Good ▼. Mylin, 8 Pa. St., 51; Hicks v. Foster, 18 Barb., (MUL
2 Weaver v. Page, 6 Cal., (J81.
DAMAGES. 497
•((S) Merchant — Lo8$ of credit ^ etc., as an element of exemplary damagee*
In 1884 Biering was doing business in QaWeston, Texas, as a merchant.
In June his stock of merchandise was destroyed by flra At that time he
was indebted to the bank in the sum of $15,270, and held policies upon his
burned stock for about $44,000, about $29,000 of which was with the in-
«nrance agency of Beers & Kennison. After the fire, the bank endeavored
to get him to transfer to it enough of the insurance to secure its debt, no
part of which was then due, but he refused to make such transfer ; and the
hank immediately sued out a writ of attachment upon the ground that
JBiering was '* about to convert his property into money for the purpose of
placing it beyond the reach of his creditors.'' The writ was returned on
the day it was issued, *' no property found,** and on the same day the bank
sued out seven writs of garnishment and had them served on Beers & Ken-
nison, as agents for the various companies carrying the insurance on the
•destroyed stock. The writ of attachment was never levied. Biering i>aid
his indebtedness to the bank, and on the 24th of September, 1884, the gar-
nishment suits were dismissed. On the 26th Biering brought suit to recover
-damages, actual and exemplary, for the alleged wrongful and malicious
suing out writs of attachment and garnishments. The case was tried by a
jury, and there was a verdict and judgment for $227.44 in favor of the
j>laintiff. Biering not feeling satisfied with the judgment made a motion
.for a new trial, and upon its being refused took an appeal.
In discussing the question of the injury to Biering's credit, as an element of
•damages. Acker, J., said: ''Appellant insists that 'the court erred in its
•eharge, because the charge excludes from the consideration of the jury the
damages to appellant's credit as a merchant as actual damages, and restricts
actual damages to interest on the insurance money tied up by the garnish-
ments.' The charge of the court directed the jury, if they believed from
<the evidence that the affidavit for attachment was not true, to find as act-
ual damages interest upon the insurance money detained by the gamish-
-ment proceeding at eight per cent for the length of time that it was so
detained. Upon the subject of injury to plaintiff's credit the court charged
the jury : ' If you believe from the evidence that the said affidavit was not
true, and that the garnishments were without probable cause and with
malice, then the plaintiff would not only be entitled to bis actual damages,
but you would, in addition thereto, be authorized to award to the plaintiff
• exemplary damages also, the amount of which to be determined by you
from all the facts and circumstances in evidence, the motives for the gar-
nishments and the injury to plaintiff's credit, if any, by the garnishments;
hut if there was probable cause for the issuance of the writs, then there
could be no exemplary damages.' The jury is authorized and instructed
by this charge to find damages for plaintiff for injury to his credit if they
should find from the evidence, not only that the affidavit for attachment
was not true, but also that the writs of garnishment were sued out without
probable cause and with malice, and we think it can make no difference
• to appellant, nor in any way affect his rights, whether the damages thus
authorized to be awarded are called actual or exemplary damages ; the
Jaw upon which he would be entitled to recover damages for injury to his
82
498 DAMAGES.
credit being correctly given. We think the charge lufBcient, nnd that the-
objection here urged is not well taken." Biering v. First Nat Bank, (K^'
Tex., 599; 7 a W. Rep., 90 {1888>
(8) Beeuniary eircunutancea of tfie parties may he shown by plaintiff, tohen,
Allen mortgaged to Coleman a mule and wagon. Coleman forecloeed
the mortgage, AJLfa, was issued; search was made for the propertj
but it was not found. Certain information came to Coleman indicating
that the property had been disposed of by Allen. Coleman took the advice
of counsel, and made the requisite affidavit to impute an offense under sec
tion 4600 of the code of Georgia, charging that the property had been
fraudulently disposed of ; procured a warrant and Allen was arrested, de-
tained in custody upon the streets of Macon a few hours, and was thea
permitted to go home on his promise made to the sheriff to return and give
bond. He returned and gave a bond for his appearance. At a subsequent
term of the court another affidavit was made by Coleman, charging that the
property had been fraudulently sold and disposed of. Upon that affidavit
m
an accusation was framed, and Allen was tried and acquitted; after which
he brought his action against Coleman for malicious prosecution. The jury
found for the plaintiff $1,000. The defendant moved for a new triaL
On the question of the pecuniary circumstances of the parties, botl^
plaintiff and defendant, Bleckley, C. J., said: The code of Georgia, section
2986, declares, '* The recovery shall not be confined to actual damages sus-
tained by the accused, but shall be regulated by the circumstances of the-
case." That not only allows but constrains the jury to look beyond actual
damages, and for this reason we uphold the ruling of the court admitting
evidence as to the pecuniary circumstances of the defendant in the action.
Such evidence, under many authorities, is admissible wherever punitive
damages may be recovered ; but what we rule at present is that it is admis-
sible in this class of actions, where the very essence of the injury is that it
proceeded from malice. We think that under all the authorities the pecun-
iary condition and worldly circumstances of the defendant may be re-
ceived in evidence, to be considered by the jury, in this particular class of
actions. Wealth of defendant considered: 1 Suth. Dam., 743-745; 8 Suth.
Dam., 727; Belknap v. Railroad Co., 49 N. H., 858; Johnson v. Smith, 64^
Me.. 553; Humphries v. Parker, 52 Me., 507, 508; Stan wood v. Whitmore,
63 Me., 209; Jones v. Jones, 71 III., 562; McCarthy v. Niskern, 22 Minn., 90;
Winn V. Peckham, 42 Wis., 493; Birchard v. Booth, 4 Wis., 67; Barnes v.
Martin, 15 Wis., 240; Hunt v. Railroad Co., 26 Iowa, 868; Guengerecb v.
Smith, 84 Iowa, 848; Dailey v. Houston, 58 Mo., 868; McNamara v. King,
2 Gilman, 482; Clements v. Maloney, 55 Mo., 352; Rowe v. Moses, 9 Rich.
Law, 428.
Some authorities hold that where the pecuniary circumstances of the
defendant are admissible in evidence to be considered in graduating dam-
ages, those of the plaintiff are also admissible for the like purpose. This
precise question need not be decided in the present case, as there was an-
other object for which the plaintiff's pecuniary circumstances were clearly
admissible ; that is, to throw light upon his dealings with the mortgaged
property and the motive that actuated the same. While wealth will not
DAMAGES. 499
screen from punishment for a fraud actually committed, it may be of
great consequence in illustrating the question whether or not a fraud was
intended* and also the further question whether an accuser had reason to
believe that a fraud was intended. Coleman v. Allen, 79 Ga., 687; 5 S. E.
Bep., 204 (1888).
(4) Attorney fees^ an element of damages.
MiFB Ann R Ward commenced a prosecution for bastardy against Krug*
It was finally compromised upon his giving her his note for $300. Two
years afterwards he procured his wife to go before a justice of the peace
and swear to a complaint against Miss Ward for committing perjury in
swearing that he was the father of her child. The warrant was issued and
Krug took it to a constable of the county, and together they went to Miss
Ward*s residence in another county. There at Krug*s instance the con-
stable arrested her and brought her back to the county and before the jus-
tice who issued the warrant. After some delay she was tried and acquitted.
She then brought an action against Ejrug. The declaration contained a
count for malicious prosecution, one for false imprisonment and one for
slander. On the trial it appeared that at her residence Krug told her he
had an officer who had a warrant to arrest her because she had sworn
falsely, but if she would give up the note he would let her go. Otherwise
she might have to go to the penitentiary. The constable testified that
when they arrived at her residence she was in the wash house. When she
came in Ej-ug said, ** Annie, this is an officer. He has a warrant to arrest
you. You have sworn falsely. You know I never done anything to you.
That child is not mine." She said: **Mr. Krug, it is yours. I never swore
falsely, for no one ever touched me but you." He then said: ** You did
swear falsely. Don't you know it will penitentiary you?'* She was crying
and seemed to be scared. He told her if she did not give up the note she
would have to go to the penitentiary ; and then he ordered me to arrest
her and I did." There was some evidence that Krug was a man of con-
siderable wealth.
There was also evidence admitted that Miss Ward's step-father had paid
for her the sum of $20 for attorney fees and for witnesses in her defense on
the charge of perjury. The jury returned a verdict in her favor for $2,750,
upon which judgment was rendered, and Krug appealed to the supreme
court. The judgment was affirmed.
In speaking of the item of damages for attorney fees and expenses Justice
Scholfield said : The evidence of the payment of the $20 for attorney's fees
and expenses of witnesses for plaintiff, in her defense in the trial for per-
jury, was competent. The expenses were incurred for her, in consequence
of the prosecution, and she was entitled to recover the amount of the de-
fendant. Krug V. Ward, 77 111., 603 (1875).
(5) Attorney* 8 fees — Another application,
Powell sued Ziegler for malicious prosecution. Ziegler, it was claimed^
had charged Powell with having stolen a game chicken and had caused
him to be arrested on the charge ; that he had a hearing before the justice
500 DAMAGES.
and was acquitted. It was alleged that the plaintiff became liable to paj
the sum of $25 as attorney fees in defending himself against the charge.
The trial resulted in a verdict for the plaintiff for $100, from which the
defendant appealed. It was assigned for error that the court instructed
the jury that they might include as an item in making up the aggregate of
the damages, if the evidence justified, a reasonable attorney's fee for de-
fending the malicious prosecution, for which the plaintiff might have be-
come liable, but which he had not paid.
Perkins, J. : We think the authorities justify the instruction ; the judg-
ment is affirmed. Ziegl^r v. Powell, 54Ind., 173(1876). Citing Field on the
Law of Damages, 544; Munns v. Dupont, 1 Hare & W., Leading Cases, 6th
ed., 249, 276; Sedgwick on Damages, 6th ed., 110.
(6) Attorney fees — Traveling expenses to and from court — Attending
trial — Ijoss of time.
Woods brought an action against Finnell for malicious prosecution. Hie
declaration contained the following statement of damages: "By reason of
the malicious institution of said action, and its malicious prosecution with-
out any cause, the plaintiff alleges that he expended large sums of money
other than the costs of the action allowed by law, in paying the expenses
of himself and witnesses to and from Mercer county to Lanesville and
while attending the trial, amounting to $ ; also paid $ attorney's
fees to defend said action and loss of time, etc, amounting in all the
damages to $1,500," etc. A demurrer having been sustained to the decla-
ration the plaintiffs appealed. In passing upon the question, etc., Fkyor,
J., said:
'*The elementary books treating of the action for malicious prosecu-
tion lay down the rule that there are three descriptions of damages, either
of which is sufficient to support that action, and some of them must ap-
pear or the action will fail. 1. To the person by imprisonment. 2. To the
reputation by scandal. 8. To the property by expense (2 Cooley's Black-
stone and notes, 126; Selwyn*s Nisi Prius)." After a general discussion of
the question as to whether an action lies for maliciously prosecuting a civil
suit where there has been no arrest of the person or seizure of the prop-
erty, the judge continued : "Following the doctrine of the common law
that for every injury there is a remedy, we see no reason for denying a
remedy to the plaintiff in the case; and wliere a party seeks a judicial tri-
bunal for the purpose alone of gratifying his malice, he should be made to
recompense the party injured for the damages actually sustained, and the
court should see that a remedy is afforded for that purpose." Judgment
on demurrer reversed. Woods v. Finnell, 13 Bush Ky., 628 (1878).
(7) Insanity and mental aberration an dement of damages.
On the complaint of Braunsdorf a warrant was issued by a justice
against Rosina Flaig, on which she was arrested, brought before the justice
and examined on a charge of perjury. The examination resulted in her
discharge. In an action brought against Braunsdorf by Platb, the guard-
ian of Roeina Flaig, she having become insane, special damages were al-
DAMAGES. 501
leged as follows : '* That at tbe time of the arrest and examination afore-
said the said Rosina Flaig was of sound mind and physically strong and
healthy; that in consequence of the arrest and examination aforesaid, the
said Kosina Flaig is not only greatly damaged in her good name, fame and
credit, but her reason is dethroned, and her physical system is greatly in-
jured and her health prematurely impaired, to her damage of, etc., and
that for several months last past she has been confined as an insane per-
son in the Northern Hospital,*' etc. On the trial the jury returned a ver-
dict for $3,000, and tbe defendant appealed.
Lyon, J. : *' On the question of damages, it is enough to say that, under
the testimony, the jury may have found, and probably did find, that the
criminal prosecution complained of greatly injured Bosina's health and
rendered her insane, besides creating a predisposition to mental aberration.
This was and is a great personal calamity, and would of itself uphold a
verdict for very considerable damages, even were the plaintifTs recovery
limited to actual or compensatory damages ; but when, in addition to this,
we consider that the jury were authorized to give exemplary damages also,
we are quite unable to say that a verdict for $3,000 damages is excessive.
Under all of the circumstances of the case we do not feel authorized to dich
turb the judgment on that ground." Judgment afiirmed. Plath, Guard-
ian, etc., V. Braunsdorf, 40 Wis., 107 (1876).
(8) Mental anxiety, trouble and distress an element of damages,
O'Hern leased to Deslonde a dwelling-house for one year for $480, at $40
per month ; that he was paid in advance $820, equivalent to eight months'
rent; that in the month of December following date of contract (Oc-
tober Ist) he was paid $20 more, but notwithstanding these payments he
was sued for the instalments of the rents, and had the furniture of the les-
see seized under a writ of provisional seizure ; that he also sued to have
the tenant evicted, and obtained judgment against him ordering his evic-
tion ; that he agreed not to execute this judgment and to permit the lessee
to remain on the premises if he (Deslonde) would pay costs and the entire
rent ; that the lessee did pay all the costs and also the entire rent, except
$40 thereof, and offered to pay this, and would have done so, but that the
lessor declined to produce the rent notes, and refused to accept subsequent
offers of payment; that, in violation of his agreement and in spite of the
willingness manifested by the lessee to comply with that agreement to the
very letter, and in utter disregard of Deslonde's rights, 0*Hern persisted in
the execution of his writ of ejectment and in his determination to evict
the lessee from the premises, until Deslonde compelled him to desist there-
from by writ of injunction. Deslonde then brought a suit for damages.
The amount claimed was $2,500. There was judgment in his favor for
$100. The defendant appealed, and the plaintiff prayed to amend the judg-
ment by increasing the same to the amount demanded, $2,500.
Todd, J., in delivering the opinion of the court, said: *'In all these pro-
ceedings the cpndnct of O'Hern was harsh and without the slightest justi-
fication. It can only be explained on the hypothesis that he was determined
to wrest the property leased to the lessee, Deslonde, and at the same time
force him to pay the rent. If O'Hern stood on his judgment of eviction^
S02 DAMAGES.
then that judgment diaaol ved the lease, and only debarred him from daim*
ing rents falling due after that time ; but while O'Hem was thus engaged
in harassing Deslonde with his writs, — which was in May, and the lease
did not expire till October, — the entire rental of the year had been paid,
except for a single month. There was such an entire lack of justifiable
cause for O'Hern'S acts and proceedings against Deslonde that the law-
would impute them to be prompted by malice. Yilley ▼. Jarreau, 38
Ann., 292; Butchers* Union, eta, Go. t. Crescent City, etc., Co., 87
Ann., 881.
" It seems that the jury in the court below, and the judge likewise^
reached the conclusion we have announced touching the conduct and acts
of the defendant, and as being of a character to render him liable for dam-
ages, bat the judge by his decree evidently limited the damage to the act-
ual loss and expense sustained by the plaintiff from the acts and proceedings
complained of. He made no allowance for the trouble, mental anxiety
and distress caused thereby to the plaintiff, which this court in the case of
Byrne v. Gardner, 83 La. Ann., 6, held to be actual damage, although of
that nature which could not be precisely measured or determined by money
or a moneyed value; that they were of that kind of damage the estimate
of which is left largely to the discretion of the judge or jury under arti-
cle 1934 of the Civil Code. We think the judge erred in thus restricting
the liability of defendant. To a man of average sensibility, under the cir-
cumstances attending this case, the expense or pecuniary outlay to which
he was subjected by the acts complained of would doubtless seem of little
significance when weighed with the inconvenience, mental suffering and
humiliation experienced by the plaintiff from causes stated, aggravated,
as they must have been, by the serious domestic trouble which, according
to the evidence, was weighing upon him at the time. These considera-
tions induce us to grant the prayer for the amendment of the judgment,
and to increase the same by the additional sum of $250 to that awarded by
said judgment, making the entire amount $350." Deslonde v. 0*Hem, 89
La. Ann., 961 ; 1 So. Rep., 286 (1887).
(9) Character of the plaintiff an element of damages.
The action of malicious prosecution is of kin to an action of slander, and,
as in that, the damage consists in part in injury to character by a criminal
charge, and not wholly in the mere physical injury consequent on the im-
prisonment on the charge, although in theory they are equal. He who has
a fair character among his acquaintances and in the neighborhood gener-
ally is entitled in an action for defaming it to greater damages than one
suing on a doubtful character. Walker et al. v. Martin, 48 JIL, 515 (1867).
II. Assessment of Damages.
§ 10. Assessment of damages — The term defined. — The
term ''assessment of damages" sign! ties nothing more than
the act of fixing the amount of the compensation a person is
entitled by la\y to have of another for an injury sustained at
DAHAGES. 503
lihe hands of the latter. In actions for malicioas prosecution
and false imprisonment, the damages being wholly unliqui-
dated, it is the province of the trial jury to ascertain and fix
the amount from the evidence in the case.
Damages are assessed —
(1) Upon the trial of the issue.
(2) Upon the default of the defendant, or demurrer over-
ruled.
(1) Upon trial of ike issue: The first question to be deter-
>mined by the trial jury, in the trial of actions for malicious
prosecution and false imprisonment, is the guilt or innocence
of the defendant of the offense charged in the complaint. If
the defendant is found guilty, the ultimate question to be de-
termined is the amount of the plaintifiTs compensation. A
party suing for an injury can only recover such damages as
naturally flow from, and are the immediate result of, the act
-complained of. In assessing the amount the jury should be
governed solely by the evidence before them: they have no
right to indulge in conjectures and speculations not supported
by the evidence.^
(2) Upon default or demurrer: The default of the defendant
or the overruling of his demurrer is considered in law a con-
fession which admits the plaintifiTs right to nominal dam-
ages. But the confession does not admit any amount of dam-
ages; it admits only the ofifense charged so far as to entitle
the plaintifiF to maintain his action;^ not, however, that it
was committed at the time or with the circumstances of ag-
gravation as may be stated in the declaration.' The damages
*must be proved and assessed by a jury, as in other cases, under
the rules of practice of the jurisdiction in which the action is
pending.*
§ 11. What the defendant may show. — Upon the assess-
^ment of the damages upon adefault, overruling of a demurrer
iSackett*8 Instructions (2d ed,\ Ck>nn.» 69 (1859). See, also, Hyde t.
^48 (1888); I., B. & W. R. R. Co. v. MoflPatt. 16 Vt., 271 (1844).
Birney, 71 111., 891 (1874). «Gk)ff ▼. Hawks, 5 J. J. Marsh.
2 1 Sutherland on Damaged, 778 (Ky.), 841 (1831); Logan ▼. Jennings,
i \^Sd) ; Bates v. Loomis, 5 Wend. (N. 4Raw]e, 855 (1834); Langdon v. Bui-
ST.), 184 (1830). lock, 8 Ind., 841 (1856): Kennon ▼.
4 Havens v. H., eta, B. R. Co., 28 tfcT^ae. 8 Stew. (8 Port), 249 (1838);
1 Sutherland on Damages, 773 (1888>
50^ DAMAGES.
or under a like state of the record, the defendant is entitled-
to appear, cross-examine the plaintiff's witnesses, and to Intro-
dace witnesses of his own on the question of mitigation of dam-
ages.* He may show the whole facts and circumstances sur^
rounding or accompanying the offense complained of, even
though it may establish the fact that the plaintiff had no l^gal
claim to damages; bntnnderthe state of the record it will
have the effect to mitigate the damages only.' It is generally
held that evidence denying the cause of action or tending
to show that no right of action exists, is not admissible in
mitigation of damages.'
§ 12, Assessment of damages — Discretionof thejary. —
The amount at which general damages are to be assessed lies
almost entirely in the discretion of the jury. The courts will
never interfere with the verdict merely because .the amount is
excessive. A new trial will only be granted where the verdict
is so large as to satisfy the court that it was perversely in ex-
cess, or the result of some gross error on a matter of principle;
it must be shown that the jury either misconceived the case-
or acted under the influence of undue motives. And so, too,
where the damages awarded appear strangely inadequate, a
new trial will not be granted, unless it is clearly proved that
the jury wholly omitted to take into their consideration some
essential element of damage; or unless the smallness of the
amount shows that the jury made a compromise, and did not
really try the issue submitted to them.^ But where the plaint-
iff is entitled to substantial damages, and the verdict in his
favor cannot be impeached except on the ground that the
damages are excessive, the court has power to refuse a new
trial, on the plaintiff's entering a remittitur as to a portion of
1 Mizer v. McDonald, 26 Ark., 88 175 (1856); Curry t. Wilson, 48 Ala.,
(1867); Cairo, etc., R. R. Co. v. Hoi- 688(1887); 1 Sutherland on Damages,
brook, 72 111., 419 (1874); Ewing ▼. 777 (1883)..
Oodding, 5 Blackf., 438 (1840); 1 «Falveyv. Stanford, L. R., 10 Q^
Sutherland on Damages, 776 (1883). B., 54; 44 L. J., Q. B., 7; 28 W. R.,
2 Turner V. Carter, 1 Head, 520 162; 81 L. T., 677; Kelly v. Sherlock,.
(1858); Carey v. Day, 86 Conn., 152 L, R., 1 Q. B., 686, 697; 85 L. J., Q.
(1869); 1 Sutherland on Damages, 776 B., 209 ; 12 Jur. (N. S.), 987 ; Forsdike
and notes (1883). v. Stone, L. R., 8 C. P., 607; 37 L. J.,
»Fau8t V. Burton, 15 Mo., 619 C. P., 801 ; 16 W. R, 976; 18 L. T.,.
(1852); Garrard v. Dollar, 4 Jones I^., 722.
DAMAGSS. 505
the amount found, or by his consenting to the damages being
reduced to such an amount as the court considers not excess-
ive, had they been given by the jury.^
Application of thb law. —
An inquest set aside for allowing evidence infastiflcation^ etc. , after default.
Foster brought an action against Smith and others for false imprison-
ment. On the inquisition taken on the writ of inquiry, after the defend-
ants were defaulted , the plaintiff proved the breaking into his house in the
night-time, his arrest, and that he was carried to a camp-meeting, where
he was tried for keeping an unlicensed huckster's shop within the prohib-
ited limits of the camp-meeting, and fined $16, which he was compelled
to pay to obtain his discharge. The defendants offered to prove that the
plaintiff had been guilty of the offense charged against him, and to show
the regularity of the proceedings had in the matter. The evidence was re-
ceived under objection. The jury assessed the damages at six cents, and
the plaintiff moved to set aside the inquisition. In allowing the motion.
Nelson, J., said: ''We are of opinion the testimony was inadmissible.
The default admitted all the material averments properly set forth in the
declaration, and of course the false imprisonment and everything essential
to establish the right of the plaintiff to recover. The only debatable question
left for the examination or consideration of the jury was the amount of
the damages, and that ought to have been examined and decided on the as-
sumption that the false imprisonment had been committed by the defend*
ants. Any evidence tending to prove that no right of aqtion existed, or
denying the cause of action, was irrelevant and inadmissible.
**The evidence in this case would have been inadmissible under the gen-
eral issue in justification, without notice or special plea, were it not for
the provisions of the statute for the more easy pleading of public officers,
and those acting in aid of them, and the reasons given to prevent surprise
upon the plaintiff on the trial, and to enable him to meet the defendants
upon equal terms with respect to the evidence. 1 Chitty's Pleadings, 498^
The reasons are equally strong against allowing the evidence without no-
tice in mitigation of damages, besides the Inconsistency of having evidence
in contradiction to the legal effect of the record, which is not pertinent to
any issues presented by it If this practice is tolerated it would enable de'
fendants to have substantially the benefit of a justification in every case in
which evidence could be procured to establish it, without notice to the
plaintiff of such defense ; for if admissible, and the justification should be
proved, the least effect that could reasonably be given to it would be to
reduce the inquest to nominal damages. This would be the standard of
damages in all cases upon such proof. As we are of the opinion the evi-
dence in justification was wholly inadmissible in this case, it is unim-
portant to inquire as to the competency of that which was offered and
allowed." Inquest set aside. Foster v. Smith et al., 10 Wend. (N. Y.X 877
(1833).
1 Belt V. Lawes (C. A.), 13 Q. B. D., 856; 53 L. J., Q. B., 349; 83 W. R., 607;
50 L. T., 441.
506 DAMAGES.
§ 13. The rale In actions for false Imprisonment. — In ac-
tions for false imprisonment it is not admissible to show that
the plaintiff had been gailty of the offense charged against
him. The default admits all the material averments properly
set forth in the declaration, and of coarse the false imprison-
ment and everything essential to establish the right of the
plaintiff to recover. The only debatable question for the ex-
amination or consideration of the jury is the amount of the
damages to be assessed, and that ought to be examined and
decided upon the assumption that the false imprisonment had
been committed by the defendants.^
§ 1 4. Damages mnst be assessed jointly against all de-
fendants.— ''It is the general rule that, where an act is done by
the co-operation of several persons, they may be sued jointly or
severally; but one is never liable for the injury of another
unless they act in concert; and several will not be held liable
for the acts of one without co-operation, or their conduct nat-
urally produced the acts which resulted in injury. Where
the acts of different persons are entirely distinct and separate
as to any aid, counsel or countenance from one to the other,
there can be no joint liability."^ Where several are sued in
tort and some are not guilty, the plaintiff must make his elec-
tion to either enter a noUe prosequi against the defendants not
guilty, dismiss his suit as to them, or to have the jury find
them not guilty ; and so the damages in these suits cannot
be severally assessed. There can only be one assessment of
damages. If they are assessed against two or more when only
one is guilty, the irregularity can only be cured by entering a
nolle prosequi against all who are not guilty, and this may be
done after verdict.*
Ill, Mitigation of Damages.
§ 1 5. Mitigation of damages —The term defined. — Mitiga-
tion of damages is what the term denotes, a reduction of the
damages; not by proof of facts which are a bar to a part of
1 Foster V. Smith, 10 Wend. (N. Y.). HI., 264 (1871); Sedgwick on Dam-
a77 (1833) ; 1 Su tberland on Damages, ages, 681 (1880) ; Majne on Damages,
778(1888). 829 (1879); 2 Arch., Nisi Prius,
« Thornton, J., in Yeazel v, Alex- 54 (1845); Holly v. Mix, 3 Wend,
ander et al.. 58 lU., 262 (1871). (N. Y.). 850 (1829); MitcheU ▼. MiU-
> Yeazel v. Alexander et al., 58 bank, 3 Tenn., 199(1790).
DAMA0BS. 507
the plaintifiTs cause of action, or a justification, nor yet of
facts which constitute a cause of action in favor of the de-
fendant; but rather of facts which show that the plaintiff's
conceded cause of action does not entitle him to so large an
•amount of damages as the showing on his side would other-
wise justify the jury in allowing him. Matters in mitigation
of damages are addressed to the equity of the law, and are
admitted to assist in the application of that paramount rule
of law that damages should not exceed just compensation,
unless the case, when fully disclosed, calls for severity in the
form of exemplary damages.' The law mercifully makes con-
cessions for the errors of persons acting in good faith, as well as
to the weakness and infirmities of human nature, which some-
times lead it unwittingly astray or subject it to uncontrollable
infiuences; but it wholly discountenances that cruel disposi-
tion which for a long time broods over acts hastily done or
words unguardedly spoken, and seeks, where opportunity
offers, to make them an excuse for brutal behavior.'
§ 16. Mitigation of damages — '^Gircamstances may alter
the case.'' — If the jury are to consider all the circumstances
attending the transaction complained of, evidence of those
circumstances and of the conduct and demeanor of the actors
therein is admissible. If these acts indicate the existence
of Hght rather than of wrong motives, if a person behave
with the caution and kindness of a man disposed to respect
the rights of others when called upon in a court of record, he
is surely entitled to introduce evidence to that effect before
the jury and urge upon them that his is not a case for ex-
<emplary damages, and to convince them, if he can, that,
although his conduct might have been illegal, it was not
prompted by improper motives.'
Applications of thb law. —
<1) What matters attending the arrest may he ehovm in mitigation of dam^
agee.
It was shown that the plaint.ff was iDsane and that it was dangerous to
permit him to go at large ; that his own safety and that of his family
1 1 Sutherland on Damages, 226 (1882); Gaither v. Blowen, 11 Md.»
<1882). 580.
2 1 Sutherland on Damages, 227 > Colby v. Jackson, 12 N. H., 526
(1842).
508 DAMAGES.
and the public required his confinement; that defendant was one of tiie*
selectmen and overseers of the poor of the town. He was cal?e 1 upon to
aid the plaintifTs family in supporting the plaintiff as a pauper, and did
so. Assuming to act officially, he .'caused the plaintiff to be confined in a
cage from the let day of January, 1840, to the 12th day of March, 1840.
In an action for false imprisonment it was held that he had not by yirtue-
of his office the right to exercise any restraint or control over the person
of the plaintiff. But in order to show that he acted with the asaent of
the plaintiff's family, he offered the deposition of Colman Golby^ a son of
the plaintiff, who testified that ** the selectmen inquired of the friends and*
some neighbors who were present, if they were willing for my father to
come home and have his liberty as usual,*' and it was my opinion and the
unanimous opinion of those present that it would not be safe. It was then
proposed to build a cage with joists and poles in one of the rooms in ray
father's house and confine him in it. Three of my brothers were there
and assisted in making the cage. The selectmen appeared desirous to
take the best course for my father and the family." The court ruled that
if it were not dangerous to permit the plaintiff to go at large the assent of
the family would be immaterial, but permitted the deposition to be read
in mitigation of damages. The plaintiff recovered $1. He moved for a
new triaL
Qilchrist, J. : The plaintiff has moved for a new trial on account of the
evidence admitted by the court in mitigation of damages. The evi-
dence tended to prove that the defendant did not proceed wantonly and
inconsiderately. He inquired of friends whether it would be safe for the
plaintiff to be at large and was told that it would not. He appeared
desirous to take the best course for the plaintiff and his family. The de-
fendant having committed an unlawful act may surely be permitted to
prove that hii intentions were good; that they were actuated by no ill-will
against the plaintiff, and that his demeanor was that of a person who meant
to do a kindness rather than a wrong. If an act be in itself unlawful and
the party do not justify or excuse it, the law will imply a criminal intent
(Rex V. Woodfall, 5 Burr., 2667; Rex v. Topham, 4 T. R,, 127); and an un-
lawful act done wilfully and purposely to the injury of another, is, as
against that person, malicious. Com. v. Snelling, 16 Pick., 840. But if
the defense fall short of a legal justification or excuse, it may still show
facts which prove the absence of any malicious intent; and it has been
held that in actions for false imprisonment the jury are to look to all the
circumstances attending the imprisonment, and not merely to the time for
which the party was imprisoned, and give damages accordingly. And all
the circumstances are admissible which accompany and give character to
the trespass. Bracegirdle v. Ax ford, 2 M. & S., 77. So either party may,
with a view to the damages, give evidence to prove or to disprove the exist-
ence of a malicious motive in the mind of the publisher of defamatory
matter. Pearson v. Lemaitre, 5 Man. & Gr., 700. And for trespass and
entry into the plaintiff's house, the jury may consider not only the mere
pecuniary damages sustained by the plaintiff, but also the intention with
which the act was done, whether for insult or injury. Motion for a niw
trial is overruled. Colby v. Jackson. 12 N. H., 526 (1«42).
DAMAGES. • 509
(2) Motive in making affidavit for the arrest*
Nicholas Roth had been a lieutenant in the Twelfth Regiment of DUnois
Yolunteers. While at his home be had an altercation with one Bradner
Smith, in which Smith charged him with cowardice. Some of Rothes
neighbors suspected him of discouraging enlistments, and requested the
sheriff to arrest him. This the sheriff declined to do unless an affidavit
was made. After the altercation between Roth and Smith occurred, some
of these neighbors went to Smith and got him to make an affidavit. Smith
-complied with their request, and made an affidavit stating that Roth had
stated in his presence that he had advised his friends not to enlist in the
war, and that he understood from admissions and statements that he was
using exertions to discourage and prevent enlistments in the army. Upon
thiB affidavit being presented to the sheriff Roth was arrested, and, after
being confined some twenty days in the jail, was turned over to the United
States marshal, who conveyed him to Chicago and detained him for a few
weeks at Camp Douglas. After his release Roth sued Smith for false im-
prisonment. The jury found for the defendant, and the plaintiff appealed,
it was urged that the trial court erred in admitting evidence that the
plaintiff had in fact discouraged enlistments. *'TbiB evidence," says
Chief Justice Lawrence in delivering the opinion, *' was admissible, not in
bar of the action, but in mitigation of damages, as it explained the circum-
stances of the alleged arrest, and tended to show that the defendant, so
far as he participated in it, was not actuated by malice. • . . Admit-
ting that upon proofs the plaintiff would have been entitled to a verdict
for some amount, he certainly would not have been entitled to nearly as
large a sum in the way of damages if the affidavit was true as he should
have received if it had been false. If the affidavit was not true, and if the
arrest was by procurement of defendant, the jury should presume malice
and award heavy vindictive damages. If the affidavit in fact was true,
and the jury could see that the defendant in making it, even though he
Toluntarily furnished it to the marshal and advised the arrest of the plaint-
iff, was acting without malice and in the belief that the public good re-
quired the arrest of plaintiff, and that he could be legally arrested, and
that in causing his arrest, so far as the defendant could be said to cause it,
he believed himself to be in the performance of his duty as a citizen, it
would clearly, in such a case, be the duty of the jury to give only com-
pensatory, and not vindictive, damages.** Roth ▼. Smith, 64 UL, 481 ; 41
HI., 814 (1870).
(8) Persuaded by another to make an affidavit, eto»
A defendant in an action for false imprisonment may show that he was
persuaded by others to make an affidavit upon which the alleged illegal
arrest was made, for the purpose of showing the animus with which he
acted and to avoid vindictive damages. And evidence is admissible for
this purpose where it does not tend to establish a bar to the action. Roth
V. Smith, 41 111., 814 (1886).
510 • DAHAQBS.
(4) Person making an arreti under a void toarrani may show it in miUga"
tion of damages.
Edward Jackson having made oath before Hedgman Triplett. a jnstice
of the peace, that he had jnst cause from their threats to fear that "
Wallas, of Brooke county, sawyer, Wells, of said county, yeoman, and
their associates," would bum his house or beat and abuse his person, the
said justice issued his warrant against them, by the above description* to
cause them to be brought before him, etc. The warrant had beon origi-
nally directed to John McOully, a constable, or Major John Jackson, to
execute, but the prosecutor, without the knowledge of the magistrate or
Black, struck out the name of Jackson and inserted that of Black, so that
it stood directed to the constable or Major John Black to execute. The
latter, taking with him the other defendants to assist, proceeded to exe-
cute it on *• Wallas, ©f Brooke county, Wells, of said county, yeo-
man, and their associates, Stephen Gapin, of the state of Pennsylvania.
and Wells, in said county,'* who were brought before the justice on the
same day the warrant was issued, at which time the substitution of Black
was made known to the justice, who said it would do as well ; and failing
to find sureties they were committed to jail by the above description and
names.
On the trial of a suit for false imprisonment brought by William Wells,
the foregoing facts appearing, the court instructed the jury as to the sub-
stitution of Black, that, if the defendants were ignorant of that circum-
stance, the warrant as to them was not void, but justified the arrest. The
jury found for the defendants and an appeal was taken.
In discnssing the appeal, Brooke, J., said : *' The objection that the name
of Jackson, one of the persons authorized to execute the warrant, was
stricken out, and the name of Black, one of the defendants, inserted, has
more force, and my present impression is that that circumstance put an
end to the authority of the warrant. In that view it was certainly not a
justification, but might have been given in mitigation of the damages, aa
it appears the defendants were ignorant of the alteration.*'
Fleming,^ J., said: I am clearly of the opinion that the warrant under
consideration is illegal in its origin and was illegally executed, and that
the instruction given to the jury by the court was erroneous. Wells v.
Jackson, 8 Munf. (Va.), 458(1811).
§ 17. Facts tending to show probable cause In mitigation
of damages. — In actions for malicious prosecution, if it ap-
pear that there were probable cause, that is, as we have seen,
a complete defense. But if the evidence tending to show
probable cause fail of its purpose, to the extent that it affords
ground for belief that the party prosecuted was guilty, so far
it tends to rebut malice, and may mitigate exemplary dam-
ages; that is, such damages as might otherwise be awarded*
DAMAGES. 511
based solely on malice.^ For example, the fact that the de-
fendant acted upon the advice of counsel learned in the law,
given after a full and fair statement of all the facts known,
will be a complete defense, because, when so advised that the
cause is sufficient for his exoneration, it will be deemed prob-
able cause.' But advice from any person other than a coun-
selor at law will not have the same effect.' Yet the fact that
advice has been given by a person not a counselor at law, as
by magistrates and police officers, is always admissible to show
the circumstances under which the prosecution was instituted
to mitigate damages, because it tends to show the absence oL
malice.*
§ 18. PlaintilTs general bad reputation in mitigation of
damages, — It seems, according to the weight of authority,
that the defendant may show the general bad reputation of the
plaintiff, both to rebut the proof of want of probable cause
and in mitigation of damages. The same facts which would
raise a strong suspicion in the mind of a cautious and reason-
able person against a man of notoriously bad character for
honesty and integrity would make a lighter impression if
they tended to throw a charge of guilt upon a man of good
reputation."
Applications of thb law. —
(1) Oeneral had reputation of the plaintiff proper to rebut the proof of
want of probable cause and in mitigation of damages.
On the trial the defendants, as preliminary to proving the general bad
reputation of the plaintiff in the place where he resided, asked a witness
the following question : ** Do you know the general reputation of the
plaintiff, Mr. Barker, among his friends and neighbors and aoquaintances,
in the city of McGregor, Iowa, as it existed in December and January and
February, 1883 and 1888, for honesty and fair dealing in business?*' —
1 8 Sutherland on Damages, 708 (1883) ; Hirsh v. Feeney, 88 111. 550
(1883) ; Baoon ▼. Towne, 4 Cu8h.» 288 (1876) ; White t. Tucker, 16 Ohio St. ,
(1849); BeU v. Pearcey, 6 Ired., 88 468 ( ).
(1844). *8 Sutherland on Damages, 709
2Ravanna v. Mackintosh, 2 B. & (1888); Pullen v. Glidden, 68 Me.,
C, 698; Stanton v. Hart, 27 Mich., 568(1878); Bostiok v. Rutherford, 4
589(1878); Burgett ▼. Bargett, 43 Hawks, 88 (1826) ; Blizzard t. Hayes,
Ind., 78 (1878). 46 Ind., 166 (1874); Israel v. Brooks,
'Stanton v. Hart, 27 Mich., 539; 23 III., 575 (1860); Fitzgibbon v.
Murphy v. Larson, 77 111., 172. Brown, 43 Me., 169 (1857); Bacon v.
4 8 Sutherland on Damages, 708 Towne, 4 Gush. (58 Mass.), 217(1849).
512 DAliAGBS.
which was ohjected to, objection sostainedy and exception taken by de-
fendants.
Justice Craig: *' We think that OTidenoe of the general bad reputation
of the plaintiff was admissible. In 8 Sutherland on Damages, p. 708, it la
said: * According to the better authorities, the defendant may prove the
general bad reputation of the piaintiflf, both to rebut the proof of want of
probable cause and in mitigation of damages.* In Israel ▼. Brooks^ 28 IIL,
676, an action for a malicious prosecution, it was held that previous good
character may be shown as one evidence of want of probable cause, and
bad character may be shown as a reason for probable cause. • • • If the
witness knew the general reputation of the plaintiff in the place where he
resided, we think it was proper evidence for the consideration of the jury
to rebut the proof of want of probable cause and also in mitigation of dam-
ages." Bosenkrans et al. v. Barker, 116 111., 881 (18S6). Citing Bacon v.
Ton we, 4 Cush., 240; PuUen v. Qlidden, 68 Me., 668.
(2) Plaintiff* s character , in regard to a particular trait, inadmisBtble tm-
le8$ involved in the charge against him,
0. F. Moore brought an action against Rybum, the sheriff of Ellis
county, Texas, for false imprisonment. The petition alleged that in June,
1887, in Ellis county, Rybum assaulted plaintiff, and with force compelled
him to quit his business and go to jail in Waxahachie, and then and there
imprisoned plaintiff, and kept him a prisoner, without any probable cause
or lawful authority, for the space of nine days. The case was tried without
a jury, and judgment was rendered for the plaintiff for $86. The sheriff
appealed.
On the trial below the court sustained objections, because immaterial
and improper, to the question asked by defendant of a witness on cross-
examination : '* Was it not a fact that plaintiff, Charley Moore, in June,
18S7, and long before that time, was regarded by the public generally where
he lived as a dead-beat, a violator of law, and a fugitive from justice, and
had he not been frequently confined in the calaboose and jail for violations
of law?'* Appellant insisted that, inasmuch "as the gist of the plaintiff's
action being that he had been wrongfully arrested and suffered mental
damage, etc., the question was germane both to show good faith in making
the arrest and upon the question of damages.'*
Walker, J. : '*The question excluded was simply to prove the general
bad character of the plaintiff, and facts warranting it, totally independent
of the transaction. In civil cases, evidence of character is not admitted
unless the nature of the action involves the general character of the party,
or goes directly to affect it. The character of a party in regard to a par-
ticular trait is not in issue, unless it be the trait which is involved in the
matter charged against him. If it should even be conceded that, to show
good faith in the officer arresting the plaintiff under the charge of theft,
his character for honesty was involved, still the general sweeping questions
asked were irrelevant If asked with reference to the measure of damages,
there is no shadow of relevancy. The question, and all parts of it, were
properly excluded. The judgment will be affirmed.** Moore v. Ryburn,
72 Tex., 86 ; 10 a W. Rep., 893 (1888). Citing 1 Greenl. Ev., g§ 64, 66.
DAMAGES. 618
§ 1 9. PlaintiflTs bad character competent in mitigation
of damages. — In actions for malicious prosecution evidence
of the general bad reputation of the plaintiff for honesty and
integrity is competent in mitigation of damages.^
§ 20. What kind of damages are the subject of mitiga-
tion.— Most of the books mention but two kinds of damages:
(1) compensatory or actual damages, (2) exemplary or vindic-
tive damages.
All damages which in any event may be recovered in actions
for malicious prosecution and false imprisoament are either
compensatory or exemplary.
Compensatory damages are those which may be recovered
for the actual personal or pecuniary injury and loss; the ele-
ments of which are: loss of time, bodily pain and suffering,
impaired mental or physical powers, mutilation and disfigure-
ment of the body, necessary expenses of surgical and other
attendants, and the like; and also those damages which may
be recovered for injuries to the feelings, the elements of which
are: the insult, the indignity, the public exposure, contumely,
and the like.
This class of damages depends upon the actual injuries sus-
tained and not upon the malice or bad motives of the wrong-
doer, and hence are not the subject of mitigation. Upon the
other hand, exemplary damages depend entirely upon the
malice of the defendant, and as evidence of such malice may
he given to increase this kind of damages, so it is competent
to show the absence of malice and the existence of good faith
on the part of the defendant for the purpose of mitigating or
even defeating exemplary damages.'
§ 21. Compensatory damages not subject to mitigation.—
In cases where the plaintiff disclaims the right to recover ex-
•^inplary damages, the introduction in evidence of matter
going only in mitigation of damages is improper.' Whatever
may have been the confusion, if not the contradiction, of the
decisions on this general question, it was finally put at rest by
1 Baoon v. Towne et al., 4 Cush. 601 (1881); Craker v. C. & N. W. E'y
(58 Maas.), 240 (1849). Co., 86 Wis., 657.
3 Prentiss v. Shaw, 56 Me., 427 ; 8 < Fenelon t. Butts, 58 Wis., 844 ; 10
Am. Law Rep. (N. S.), 712 ; Fenelon N. W. Rep., 501 (1881).
^. Butts, 58 Wis., 844; ION. W. Rep.,
83
514 DAXAGBa.
the able and elaborate opinion of Mr. Jostioe Lyon of the
sapreme court of Wisconsin.^ In that opinion the previous
decisions of his coart and of other courts were critically ex-
amined and reviewed, and the principle brought to the test
of reason, and the doctrine in this class of cases was estab-
lished, that compensatory damages were not subject to miti-
gation by proof of good faith, provocation, or other mitigat-
ing circumstances, but that exemplary damages were. In
that opinion, however, a distinction is drawn between com-
pensatory damages for bodily and mental injuries, or injury
strictly corporeal and to the /eelingsy and it is held that "dam-
ages for injury to the feelings and exemplary damag^es both
entirely depend upon the malice of the defendant, and these
may be mitigated ;" and it is further held: 'Hbat damages for
injury to the feelings are actual or compensatory in their
nature cannot well be doubted."
This decision, in the above distinction only, falls short of a
settlement of the whole question, and this distinction was
afterwards so considered and fully withdrawn, by the learned
justice who made it, in a later case,' and the damages for in-
jury to the feelings are classed strictly and unexceptionally
with compensatory damages, and not subject to mitigation
any more than other compensatory damages. These two
cases, taken together, are conclusive of the whole matter, and
the question is no longer an open one for discussion or re-
view, at least in the state of Wisconsin.
Application of thb law. —
(1) What kind of damages are subject to mitigating cireumstanoes,
George W. Prentiss was in a blaoksmith shop near Newport, Biaine, hav-
ing his horses shod. News of the assassination of President Lincoln was
received. Prentiss said he was glad of it. One Oilman, who was present,
told him he would be glad to take those words back. Prentiss said he-
would not. Oilman then informed him that he should report him. Oil-
man told Putnam Wilson, and together they went into the village and
informed Elisha W. Shaw, a deputy-sheriff, Oliver B. Rowe, HoUis J.
Rowe and Daniel Dudley of what Prentiss had said.. About two boun«
afterwards they went to the blacksmith shop, where they forcibly seized
Prentiss, and, putting him into a wagon, transported him a prisoner three*
1 Wilson V. Young, 81 Wis., 574 ^Craker v. C. & N. W. R'y Ck).,
86 Wis., 657.
DAMAOB8. 61(
miles distant, and shut him up in a room at a hotel, where they kept him
for five hours, when they took him in a carriage to the town house, all the
time threatening him with extreme personal injuries. At the town house
a public meeting was organized. A vote was passed that Prentiss should
be discharged upon taking the oath of allegiance.
Prentiss brought an action for false imprisonment He claimed dam-
ages for (1) the actual injury to his person, and for the detention and im-
prisonment ; (2) the injury to his feelings, the indignity and public exposure
and contumely ; (8) punitive or exemplary damages in the nature of pun-
ishment, and as a warning to others not to offend in like manner. On the
trial the judge instructed the jury that the defendants had shown no legal
justification for their acts, and must be found guilty. The only question
was the amount of damages ; they were bound to give damages for the inju-
ries to the plaintiff's person and for detention, to the full extent of said
damages; thai they could not consider the testimony put in by the defend-
ants in mitigation of such actual damages, but must render a verdict for
matters named under the first head to the full amount proved, without
diminution on account of any matters of provocation or in extenuation.
The judge also instructed the jury that they might consider the testi-
mony of provocation, etc., put in by the defendants under the second and
third heads stated in mitigation of any damages they might find that the
plaintiff had sustained under either or both of said grounds.
On exceptions, Kent, J., held that the plaintiff was entitled to recover
full pecunary indemnity for the actual corporal injury and for the actual
damages directly resulting therefrom, such as loss of time, expense of care
and the like ; that the declarations of the plaintiff, made prior to the un-
lawful arrest and tending to provoke the same, not being a legal justifica-
tion, are inadmissible in mitigation of the actual damages. But such
declarations, made on the same day and communicated to the defendants
prior to such arrest, together with all the facts and circumstances fairly
and clearly connected with the arrest indicative of the motives, provoca-
tions and conduct of both parties, are admissible upon the question of
damages claimed upon the other two grounds. Prentiss y. Shaw, 56 Me.»
427 (1869).
lY. Agobavation of Damages.
§ 22. Aggrayatlon of damages. — In actions for malicious
prosecution and false imprisonment, where the damages can-
not be measured by any legal standard, all the facts of the
case, the circumstances surrounding and accompanying the
commission of the tort, may be proved ; and though there be
a legal standard of damages for the principal wrong, if aggra-
vations exist they may be shown in evidence for the pnrpose
of enhancing the damages, both compensatory and exemplary.
Every case must necessarily go to the jury upon its own pe-
culiar facts.^
1 1 Sutherland on Damages, 745 (1888X
516 DAMAGES.
§ 23. What may be shown in aggraration of damages.—
Circumstances of the wrong, malicious motives, negligence,
bad faith, wilfulness, wantonness, the age and sex of the par-
ties, their standing in the community where they reside,
wealth of the defendant, etc.,' may be shown for the purpose
of enhancing the damages, whether the case is one for com-
pensation only or for vindictive damages.'
Y. Nominal Damages.
§ 24. Nominal damages defined. — Nominal damages are
damages of such small amount as to show that they are not
intended as an equivalent or satisfaction to the party recov-
ering them. They are given when the plaintiff, in an action
for an invasion of his legal rights, establishes his right but
does not show that he has sustained anv damage.'
§ 25. Discussion of the subject. — The law recognizes the
fact that for any actionable injury there is an absolute right
to damages. An actionable injury is the violation of a legal
right. A legal right is one recognized and protected by the
law. Every invasion of a legal right imperils its existence,
and to some extent imperils its enjoyment. The logical se-
quence of the invasion of a legal right is the legal sequence —
a legal injury, and thus entitles the injured party to compen-
sation.^ For this invasion, in abstract principle, the person
whose right is invaded is entitled to compensation, but al-
ways in proportion to the injury, as the evidence shows the ex-
tent or circumstances of the invasion. If there is no injury
as to actual damages, or none appear upon the inquiry, the
legal implication of damages nevertheless remains. This im-
plication requires some practical expression, as the compensa-
tion for a technical injury and nominal damages are given ; a
sum of money which can be spoken of, but which has no ex-
istence in point of quantity.*
iLyon V. Hancock, 85 Cal., 872 B., 494; 1 Rap. & L. Law Die, 836
<1863); Craker v. C. & N. W. R. R. (1888); Leake, Cont, 567.
Co., 80 Wis., 657 (1875); Jones v. ^1 Satherland on Damages, 9
Jones, 71 lU.. 562 (1874). (1883).
2 1 Sutherland on Damages, 746 ^ 1 Sutherland on Damages, 9
(1883). (1883).
s Beaumont v. Qreathead, 2 Com.
DAMAGES. 617
Applications of thb law. —
(1) Imprisonment under ttoo eommitments, one valid, one void — Nominai
damages,
Patrick Doherty was brought before Qarry Mudboq, trial justice, on two
complaints. One charged him with keeping a disorderly house. Uponr
this charge he was convicted and sentenced to imprisonment for twelve
months. The other complaint was for illegally selling intoxicating liquor,
and upon this charge also he was convicted and sentenced to pay a fioe of
$50 and costs and to stand committed until the sentence was performed.
He did not pay the fine and costs, and the trial justice thereupon issued two
warrants of commitment, which he delivered to the same officer at the
same time, who committed Doherty to the house of correction, delivering
both warrants to the master of the house, who held Doherty under both
warrants during the whole time of his imprisonment. The judgment of
the justice upon the first-named complaint was erroneous because the
power of a trial justice extended only to an imprisonment for a term nol
exceeding six months. Mass. Gen. Sts., ch. 120, g 87. But the judgment
and commitment upon the other complaint were in all respects legal. Mass.
St. 1875, ch. 99, § 18. Doherty brought an action for false imprisonment
against Munson, the trial justice. The trial seems to have proceeded upon
the assumption that the plaintiff was entitled to recover, the defendant
contending that the recovery must be for nominal damages only. The
question of the justice's liability to an action for an erroneous judgment in
imposing the sentence in a case when he had jurisdiction was not raised
at the trial. The case being reported to the supreme court no opinion was
expressed on this point.
Morton, J. : *' We are of the opinion that the defendant, if liable at all, is
liable for nominal damages only. . . • The judgment and commitment
upon the complaint for illegally selling intoxicating liquor were legal and
valid. The plaintiff during the whole time of this imprisonment was
therefore held upon a legal warrant. The fact that the roaster of the house
of correction also held another warrant, which was illegal, did not affect
the character of his imprisonment, and he sustained no damage thereby.-*
Judgment was rendered for $1. Doherty v. Munson, 127 Mass., 495 (1879).
(2) Illegal arrest made through misleading atatementa of the person ar-
rested.
Under a statute requiring proof to be made that the defendant was
about to depart from the county, or that he was in danger of losing his
debt, to authorize the issuing of a warrant against a man with a family
living in the county, in the first instance, a warrant was issued by a jus-
tice of the peace, at the instance of one Pringle, without oath or such
preliminary proof, against one Curry, as an inhabitant of the county hav-
ing no family. Pringle and Curry lived in the same county, but in towns
distant some twenty-six miles from each other. Some time before his ar-
rest Curry had declared that he was not a man with a family ; but after
his arrest he declared he was a man with a family ; upon which Pringle, to
1^181 DAMAGES,
avoid the danger of being nonsuited in caiae the last declaration mraa trae,
discharged him from arrest Curry then sued Pringle for false iaiprison-
mentt
On the trial the judge directed the juiy to find a verdict for the plaintiff
for nominal damages, subject to the opinion of the court on the facts
stated. If the* court should be of the opinion that the defendant was sot
liable, a nonsuit^ was to be entered ; but if he was liable, the verdict was to
atand. It was held that, as the plaintiflF was an inhabitant of the county
Jn which the defendant and the justice resided, that to authorise the fssu-
^ ing of the warrant the defendant ought to have made the proof required
by the law. The imprisonment was illegal, and judgment for the plaintiff
was ordered. Curry v. Pringle. 11 Johns. (N. Y.), 444 (1814). Cited in 106
Sfass., 504; 88 Barb., 847; 17 Abb. Pr. (N. Y.), 247; 6 Lans. (N. Y.). 899;
10 Wend. (N. Y.). 862; 6 Wend. (N. Y.), 601 ; 7 Cow. (N. Y.), 258.
(8) Nominal damages^ when improper,
A citizen of Alabama was traveling through Georgia going to Florida.
In passing a county town he was noticed, and happened to be compared
with the description of an escaped convict who was under sentence in the
state of Louisiana. The sheriff having that description, and thinking, from
the almost perfect fit of the same to the unknown traveler, that he was the
man described, arrested him, and carried him before a justice of the peace,
and the justice of the peace advised that he be detained. No warrant was
sued out against him. The sheriff handcuffed him and carried him to the
jail of an adjoining county and imprisoned him several days, until some
one came from Louisiana, inspected him and determined that he was not
the escaped convict ; and then he was turned out of jail and permitted to
pursue his way. He brought his action for this outrage against the sheriff,
which was tried, and the jury found a verdict is his favor for $25 dam-
ages. Not l)eing satisfied with the result, the plaintiff took the case to the
supreme court on a writ of error.
In reversing the judgment Bleckly, C. J., said: " Though an arrest with-
out warrant be justifiable^ yet to detain the prisoner longer than a reason-
able time for suing out a warrant, then to handcuff him, carry him out of
the county, and there incarcerate him for days, under no warrant what-
ever, is false imprisonment, if not kidnaping, and a finding by the jury
of $25 is no compensation for the injury. Kidnaping is defined in sec-
tion 4867, Georgia code, and seems to be a close neighbor to this transac-
tion. The very least that could be made out of the facts would be a gross
case of false imprisonment Code, § 4864; Lavina v. State, 63 Ga., 513.
The statute authorizes the jury, in certain cases (and this is one of them),
to give exemplary damages, by way of deterring the defendant from re-
peating the tort, or committing similar torts. Code, § 8066. But here, as
it would seem, the jury attempted to teach the plaintiff, by sad experience,
not to bring any more such actions. We think they looked exactly to the
contrary of the direction in which they should have looked. Their object
seems to have been to discourage men from asking, legal redress for g^rave
injuries, instead of making the violators of law smart for injuries in-
flicted. It is plain that, although this airest may have been justifiable*
DAMAGES. 619
the sberiff deliberately, and apparently thoughtfully, declined to observe
the law, which commanded him, if not ezpressly, by clear implication, to
obtain a warrant within a reasonable time. Oxle, §4725; id., § 56; La-
vina V. State, 68 Gkt., 618. He went before a justice of the peace, and
that proves that he had a reasonable time. He declined even to apply for
a warrant, and took this man to an adjoining county, handcuffed like a
criminal, put him in jail, and confined him there a number of days. It is
obvious that he had no more right to treat the plaintiff in that manner
than the plaintiff had to treat him so. It would have been just as much a
$25 case for damages if the Alabama citizen had captured the sheriff and
carried him to Albany, handcuffed, and put him in jaiL Even if this man
had been guilty, if he had been the escaped convict that he was supposed
to be, he ought to have had heavy damages, or at least full compensatory
damages, for such an outrageous violation of law on the part of the sher-
iff. If anybody ought to keep the law, it is those who are engaged in its
administration. What excuse can an officer have for not obtaining a war-
rant when he has made a legal arrest without one? If officers of the law
can be tolerated in violating the law in this manner, what inducement has
anybody to abide by that law?
*' 2. We think such a verdict could hardly have been rendered by an im«
partial jury but for an error committed by the court in its charge. The
court instructed the jury that, under the declaration, they might find for
the plaintiff any amount from one cent to $3,000, the limit of the damages
alleged in the declaration. This was equivalent to telling the jury they
might give nominal damages, or compensatory damages, or exemplary
damages, just as they thought proper. These were not appropriate instruc-
tions in such a case. It is no place for nominal damages. It is no case for
one cent, or any small number of cents, under the evidence, and the jury
ought not to have been turned loose, by the charge of the court, to con-
sider the question of nominal damages at all. Possibly, if that error had
not been made, the verdict would not have been so grossly inadequate.
The case, in any view of it, not being one for nominal damages only, it
was error even to suggest to the jury that a finding of one .cent was legally
possible under the evidence.** Potter v. Swindle, 77 Ga., 419; 8 8. E. Rep.,
^(1887).
YI. COMPENSATOBT DAMAGES.
§ 26. Compensatory damages defined.— Compensatory
damages are those allowed as a recompense for the injury
actually received.^ The theoretical idea of damages is that
they are to be compensation and satisfaction for the injury
sustained.* Practically, however, a case can seldom occur in
which they are completely so.
An example: The simplest instance which can occur under our laws is
the non-payment of a debt. Put out of the question every element of
1 1 Bouvier's L. Die, 467 (1884). ? 2 Black. Com., 48a
520 DAMAGES.
mental suffering caused by the delay, there may be a clear amount of pe-
cuniary loss flowing from it in the most direct manner. Under our com-
mercial system the creditor may become insolvent and be permanently
ruined. He may have to borrow money at an extravagant rate of interest*
If he brings a suit to collect his debt, his taxed costs cannot repay him for
the amount he has expended in the action ; but for none of these can he
be compensated under the law : the amount of his debt with interest and
costs is all he can recover. ^
YII. ExEMPLABY Damages.
§ 27. Panitiye^ exemplary or TlndictiTe damages — Smart
money — The terms defined. — Exemplary damages, or, as
they are frequently called, punitive or vindictive damages or
smart money, are damages given not merely as a pecuniary com*
pensation for the loss actually sustained by the plaintiff, but
likewise as a kind of punishment to the defendant with the
view of preventing similar wrongs in the future, as in actions
for malicious injuries, etc.^
There is much authority for allowing damages beyond com-
pensation for torts whenever a case shows a wanton invasion
of the plaintiff^s rights^ or any circumstances of outrage or
insult, whenever there has been oppression or vindicliveness
on the part of the wrong-doer, or a wilful, malicious or reckless
tort to person or property.'
In actions for trespasses juries are authorized to give exem-
plary, punitive or vindictive damages, or, as it is sometimes
called, smart money. If wrong-doers were bound to pay in
damages no more than the exact value of the property forci-
bly taken and converted by them, or the actual damage sus-
tained by reason of a wrongful act, there would be no motive
created by the operation of law to induce them to desist and
abstain from invading the rights of others. To furnish such
a motive this class of damages is allowed.* But this rule is
not uniform in all of the states of our Union.*
1 Wayne on Damages, 8 (8d ed., St., 48. See Railroad Co. v. Goblv
1877). ' 68 111., 53; Cutler v. Smith, 57 m.,
3 Broom, Com. L., 855; 2 Smith's 252.
Lead. Cas., 549; 1 Rop. & L. Law * Tyson ▼. Ewing, 8 J. J. Marsh.
Die. 336 (1888). (Ky.), 186 (1830).
s 1 Sutherland on Damages, 716 ^ 1 Sutherland on Damages, 711
(1888); Amesv. Longstreth, 10 Pa. (1883).
St., 184; Nagle v. Mattison, 34 Pa,
DAMAGES. 521^
§ 28. The law stated by Mr. Justice Grler.— " It is a well^
established principle of the common law, that, in actions of
trespass and all actions on the case for torts, a jury may in*
flict what are called exemplary, punitive or vindictive dam-
ages, upon a defendant; having in view the! enormity oT
his offense rather than the measure of compensation to the-
plaintiff. We are aware that the propriety of this doctrine-
has been questioned by some writers, but if repeated judicial
decisions for more than a century are to be received as the^
best exposition of what the law is, the question will not admit
of argument. By the common law, as well as by statute law,
men are often punished for aggravated misconduct or lawless
acts by a civil action, and the damages inflicted by way of
penalty or punishment given to the party injured. In many
civil actions, such as libel, slander, seduction, etc., the wrong-
done to the plaintiff is incapable of being measured by a
money standard ; and the damages assessed depend on the cir-
cumstances showing the degree of moral turpitude or atrocity
of the defendant's conduct, and may properly be termed ex»
emplary or vindictive rather than compensatory. In actions^
of trespass where the injury has been wanton and malicious,
or gross and outrageous, courts permit juries to add to ther
measured compensation of the plaintiff which he would have-
been entitled to recover had the injury been inflicted without
design or intention, something farther by way of punishment
or example, which has sometimes been called 'smart money .^
This has always been left to the discretion of the jury, as the-
degree of punishment to be thus inflicted must depend on the-
peculiar circumstances of each case. It must be evident, also^
that as it depends upon the degree of malice, wantonness, op-
pression or outrage of the defendant's conduct, the punish-
ment of his delinquency cannot be measured by the expenses
of the plaintiff in prosecuting his suit. It is true that damages-
assessed by way of example may thus indirectly compensate
the plaintiff for money expended in counsel fees; but the
amount of these fees cannot be taken as the measure of pun*
ishment or a necessary element in its infliction." ^
J Day V. Wood worth, 13 How. (U. S.), 871 (1851); MUwaukee, etc., B. R.
Co. ▼. Ames, 1 Otto, 489 (1875).
^22 DAMAGBS.
§29. The law stated by McAllister^ J.— " The principle
of the rule allowing exemplary, vindictive or punitory dam-
ages, as they are called, has been severely questioned by many
very able jurists, among whom was Professor Greenleaf, upon
^rhose sturdy, accurate, profound intellect and wonderftil legal
■attainments it is unnecessary to pass any encomiums. In his
definition of damages, and upon which it would be difficult to
improve, there is little countenance to the doctrine of punitory
<la mages. He says: 'Damages are given as a compensation,
recompense or satisfaction to the plaintiff for an injury act-
ually received by him from the defendant. They should be
firecisely commensurate with the injury — neither more nor
less.' ^
''The principal grounds upon which the doctrine of exem-
plary damages has been assailed is that it is a false theory, and
inconsistent with the nature of the proceeding, to mix the
supposed interests of society with those of an individual in
the pursuit of purely private redress for private injury, and is
subject to great abuses, which in most cases the courts can
<;orrect only by the exercise of the delicate power of setting
aside a verdict as corrupt, partial or passionate. The doctrine
of exemplary, vindictive or punitory damages is, however, too
firmly rooted in our jurisprudence to be disturbed. But, while
still recognizing the doctrine within its proper scope, the argu-
ments which may be urged with great if not unanswerable force
against it ought to be influenced in begetting a high degree
of watchfulness on the part of courts to prevent it from being
perverted — from being extended beyond the real principle
«ipon which it is said to be based — by allowing plaintiffs,
though the instrumentality of instructions to the jury, to
^characterize the acts of the defendant with degrees of enor-
mity and turpitude which the law does not affix to them, and
•demand punishment for fictitious offenses,^ and thereby put
money in their own pockets under the guise of protecting
society." *
§ 30. The general rule. — In the actions treated of in this
^ork the conduct and motives of the defendant are open to
inquiry for the purpose of ascertaining the amount of dam-
^2 Green]. Ev., g 258, and note 2. > McAllister, J., in Holmee t.
Holmes, 44 in., 168 (1867).
^ges. If in oommittiDg the wrongs charged he has acted
recklessly, or wilf ally and malioiously with a design to injare
or oppress the plaintiff, the jury in fixing the damages may
-disregard the rale of compensation ; and, beyond that, may as
a punishment of the defendant, and as a protection to society
against a violation of personal rights and social order, award
such additional damages as in their discretion they may deem
proper.^
§ 31. Exemplary damages — A question for the jary —
The law stated by Walker^ J. — In an action for false im-
prisonment the question of whether the acts complained of
were wantonly or wilfully committed is important to be con-
sidered in measuring the damages* Where the wrong is wan*
ton, or it is wilful, the jury are authorized to give an amount
of damages beyond the actual injury sustained, as a punish-
ishment and to preserve the public tranquillity. But when
the wrong-doer acts in good faith, with honest intentions, and
with prudence and proper caution, and he shall invade the
rights of others so as to render himself liable to the action,
punitive or exemplary damages are improper. ^^ Whether the
acts complained of are committed under circumstances of ag-
gravation is a question for the consideration of the jury."'
§ 33. There can be no exemplary damages where no act-
ual damages exist. — Where no actual damage is suffered, no
exemplary damages can be allowed. Exemplary damages can
never constitute the basis of a cause of action. They are never
more than incidents to some action for real and substantial,
damages suffered by the plaintiff; and, when given, they are
given only in addition to the real and actual damages suffered
and recovered by him; and, when given, they are not given
upon any theory that the plaintiff has any just right to re-
cover them, but are given only upon the theory that the de-
fendant deserves punishment for his wrongful acts, and that
it is proper for the public to impose them upon the defendant
as punishment for such wrongful acts, in the private action
brought by the plaintiff for the recovery of the real and actual
damages suffered by him. No right of action for exemplary
damages, however, is ever given to any private individual
1 1 Suthertond on Damages, 720 ^ Hawk et aL r. Ridgway, W I1L»
i 1 883X and cases cited. 478 ( 1 864).
524 DAMAGES.
who has suffered no real or actual damages. He has no right
to maintain an action merely to inflict punishment upon som&
supposed wrong-doer. If he has no cause of action independ-
ent of a supposed right to recover exemplary damages, be has
no cause of action at all.^
§ 33. Corporation liable in exemplary damages. — It is a
well-establisbed principle of jurisprudence that corporations
may be held liable for torts involving a wrong intention^such
as false imprisonment; and exemplary damages may be re-
covered against them for the wrongful acts of their servants
and agents done in the course of their employment, in all cases
and to the same extent that natural persons committing like
wrongs would be held liable. In such cases the malice and
fraud of the authorized agents are imputable to the corpora-
tions for which they act. This principle is too well settled to
require argument, and the authorities sustaining it are numer-
ous and well-nigh unanimous.*
§ 34. The right to exemplary damages does not depend
on the existence of malice in its ordinary sense. — The right
of the jury to assess exemplary or punitive damages in actions
for false imprisonment does not necessarily depend upon the
existence of malice, using that term in its ordinary sense.
1 Schippel y. Norton, 88 Kan., 567 ; Co. v. Hammer, 72 111., 358; Reed v.
16Pac. Rep.. 804(1888); Gilmore v. Home Sav. Bank, 130 Mass., 443;
MathewB, 67 Me., 517; Stacy ▼. Pub- Fenton v. Sewing-machine Co., 9
lishing Co., 68 Me., 279; Freese v. Phila., 189; Goodspeed v. East Had-
Tripp, 70 III., 496; Meidel v. Anthis, dam Bank, 22 Conn., 530; Boogher
71 111., 241; Gansslj v. Perkins, 30 v. Life Ass'n of America, 75 Mo.,
Mich., 492; Maxwell v. Kennedy, 319; Wheless v. Second Nat. Bank,
60 Wis., 645, 648, 649; 7 N. W. Rep., 1 Baxt., 469; Jordan v. Railroad Co.,
657. 74 Ala. 85; Williams v. Insurance
8 Wheeler & Wilson Manufg Co. Oa, 57 Miss., 759; Vance v. Railway
V. Boyce, 36 Kan., 850; 13 Pao. Co., 82 N.J. Law, 834; Cooley, Torts,
Rep., 609 (1887); Railroad Co. v. 119; 8 Suth. Dam., 270, and cases
Slusser, 19 Ohio St., 157; Atlantic cited; 2 Wait, Act. & Def., 447, and
& G. W. R. Co. V. Dunn, 19 Ohio cases cited ; Railroad Co.' v. Rice, 10
St., 162; Goddard v. Grand Trunk Kan., 487; Missouri, K. & T. Ry. Co.
Ry., 57 Me., 202; Railroad Co. v, v. Weaver, 16 Kan., 456; Kansas
Quigley, 21 How., 213; Railroad Co. Pac. Ry. Co. v. Kessler, 18 Kan., 523;
V. Arms, 91 U. S., 489; Railroad Kansas Pac. Ry. Co. v. Little, Id
Co.v. Bailey. 40 Miss., 895; Railroad Kan., 269; Western News Co. v.
Co. V. Blocher, 27 Md. . 277 ; Hopkins Wilmarth, 83 Kan., 610 ; 6 Paa Rep.»
T. Railroad Co. , 86 N. H , 9 ; Railroad 786.
DAHAOES. 525
These damages may be awarded when a wrongful act is done
wilfully, in a wanton or oppressive manner, or when it is
done recklessly, — that is to say, in open disregard of one's
civil obligations and of the rights of others. The cases on
the subject show that in the matter of assessing damages for
a false imprisonment, or for an assault or trespass, it is the
duty of the jury to consider not only all the circumstances of
aggravation attending the wrongful act, but in some measure,
at least, the nature of the right that has been invaded, and
the eflfect upon social order of permitting a wrong-doer to es-
cape without substantial punishment, in case of a flagrant
violation of the law and the rights of others.^
Applications of thb law. —
(1) $2J50 not excessive.
Miss Ann E. Ward commenced a prosecution for bastardy against Krug.
It was finally compromised upon his giving her bis note for $300. Two
years afterwards he procured his wife to go before a justice of the peace
tind swear to a complaint against Miss Ward for committing perjury in
fswearing that he was the father of her child. The warrant was issued
and Krug took it to a constable of the county and together they went to
Miss Ward's residence in another county. There, at Krug's instance, the
constable arrested her and brought her back to the county and before the
justice who issued the warrant. After some delay she was tried and ac-
quitted. She then brought an action against Krug. The declaration con-
tained a count for malicious prosecution, one for false imprisonment and
one for slander. On the trial it appeared that at her residence Krug told
her he had an officer who had a warrant to arrest her because she had
sworn falsely, but if she would give up the note he would let her go,
otherwise she might have to go to the penitentiary. The constable testi-
fied that when they arrived at her residence she was in the wash-house.
When she came in Krug said: " Annie, this is an officer; he has a warrant
to arrest you ; you have sworn falsely ; you know I never done anything
to you ; that child is not mine." She said. *' Mr. Krug, it is yours ; I never
swore falsely, for no one ever touched me but you." He then said, "You
did swear falsely;. don't you know it will penitentiary you?" She was
cr^nng and seemed to be scared. He told ^er if she didn't give up the
note she would have to go to the penitentiary ; and then he ordered me to
^Frothingham ▼. Adams Express v. Blackmar, 64 N. Y., 440; Drohn
Co., 86 Fed. Rep., 252(1888); Huckle v. Brewer, 77 111., 280; Sherman v.
r. Money, 2 Wiis., 205; Beardmore Dutch, 16 111., 288; McBride v. Mc-
V. Carrington, id., 244; Merest v. Laughlin, 6 Watts, 875; Turnpike
Harvey, 5 Taunt., 442; Conrad v. In- Co. v. Boone, 45 Md., 844; McWill-
surance Co., 6 Pet, 268; Day v. iams v. Bragg, 3 Wis., 424; Green
Wood worth, 18 How., 868; VolU v. Craig, 47 Mo., 90.
S20 DAHAGBS.
Arrest her, and I did. There was some evidence that Kmg was *a man of
considerable wealth. The jury gave the plaintiff (2,750, upon whidi jndg-
ment was entered. Krug appealed.
In aflSrming the judgment. Justice Scholfield said: " The verdict in this
case, though large, we cannot regard as so excessive as to justify the
granting of a new trial. The defendant is shown to be a man of consider-
able wealth. It is fitting that, in him, an example should be made to vin*
dicate the law and teach others that the criminal code cannot be resorted
to for the gratification of personal malice, or the attainment of dishonor-
able personal ends, without surely bringing upon him who thus resorts to
it the most serious consequences. What might be a severe punishment,
in the way of a judgment, against a very poor man, to him would, doubt-
less, be trifling and insignificant. While it is important to guard against
wholesale confiscations in suits of this character, it is equally important
that it should be understood that the possession of wealth gives to him
who would override the law with strong hand, no advantage over his less
fortunate neighbor in the acquisition of property." Krug v. Ward, 77 I1L»
603 (1875).
(2) $1,000 held proper.
The Wheeler & Wilson Manufacturing Company was engaged in busi-
ness at Topeka, Kansas, and C. S. Baker, was its general agent. It sold a
sewing-machine to Mary Hatfield, who subsequently married J. F. Boyce.
She paid a part of the purchase-money and signed a contract that the title
of the machine should remain in the company until the balance was paid»
Afterwards the company directed its general manager to bring an action
of replevin against her to recover the machine, claiming that a balance of
the purchase-money remained unpaid, a claim which she denied. The con-
stable to whom the writ was delivered reported that he could not find the
machine. The general agent of the company then directed the constable
to make an affidavit before a justice that Mary Boyce and her husband
were in possession of the machine and had refused to deliver it to him»
and to obtain a warrant for their arrest. Upon making the affidavit the
justice issued a warrant directing the constable to arrest Mrs. Boyce and
her husband and commit them to the county jail, there to remain until
they should deliver the machine. The constable obeyed the writ, and in-
formed the general agent that he had arrested and committed Mr. Boyce
to jail, and without taking him before the justice and without any exami-
nation, hearing or trial. The agent replied : " Now I g^uess he will give up
the machine.'* The replevin suit resulted in a judgment in favor of Mrs.
Boyce. Her husband remained in jail ten days, and was finally discharged
at the instance of the company. He was never taken before any court for
trial or examination. He became sick in consequence of his confinement.
After his discharge he sued the company for false imprisonment He re-
covered $1,000. The company took the case to the supreme court on error.
In the supreme court it was claimed that the damages were excessive.
In passing upon this question, Johnston, J., said : ** The case is an aggra-
vated one, and the conduct of the plaintiffs in error exhibited a wanton
and reckless disregard of the rights of the defendant in error. He was not
DAMAQE& 52T
a party to the replevin action, and the testimony is that the machine m
controversy was purchased long before he was married to the plaintiff ix^
that action, and that he had no interest in or control over it. He was-
thrust into jail, without warning or trial, when there was no civil or crim^
inal suit pending against him, and kept there for ten days with seventeexk
or eighteen prisoners who were either charged with or convicted of crimes*
The sewing-machine sought to be recovered from his wife had been paid
for, and belonged absolutely to her ; and plaintiffs in error, with knowl-
edge of this fact, undertook to compel the payment of money not due, or
the recovery of property which they did not own, by the arrest and in»
carceration of the defendant in error, without cause, and in a manner that
was clearly illegal. Apart from the loss of time and interruption to his.
business, as well as the humiliation and indignity suffered by him by being
thrust into jail upon a false charge, it appears that the confinement re-
sulted in his sickness; and when we consider the malicious and oppressive
conduct of the plaintiffs in error, and that the case is one which calls for
the infliction of exemplary or punitive damages, we can only conclude that
the verdict of $1,000 in favor of the defendant was fully justified, if not
too small. We can say without hesitation that an award of a larger
amount would not have been disturbed on the ground that it was excess-
ive.
''It follows that the judgment must be affirmed." Wheeler &Wilsoa
Manuf. Co. v. Boyce, 86 Kan., 850; 18 Pac. Rep., 609 (1887).
(8) Exemplary damages — Pecuniary eoTidition of the defendant.
Hoover sued Sexson for a malicious prosecution, and recovered a judg-
ment. Hoover appealed.
In deciding the case Crumpacker, J., said: "Upon the trial Hoover
was permitted, over objections, to introduce evidence showing Sexson*»
financial condition, and complaint is made of this. In actions where
the jury would be authorized in awarding compensatory damages only,,
ordinarily, evidence of the pecuniary condition of the defendant would
be grossly improper. In suits for damages resulting from malicioua
prosecutions, however, inasmuch as the wrong-doer is not amenable to^-
the penal laws of the state, it is within the discretion of the jury, under
proper instructions, to award damages by way of punishment in addition
to compensation for the injuries sustained. It seems to be the policy of
the law to authorize the infliction of punitive damages upon the defendant
in all cases for malicious torts which are not ipunishable by the state.
While much might be said in condemnation of the policy that authorized
the merging of the rights of the public into those of the individual, and
permits penalties to be recovered in private suits, its virtues are discovered
in its salutary effect upon society, and it is now the settled law of this,
state, supported by generations of judicial wisdom. Lytton v. Baird, 05
Ind., 849: Farman v. Lauman, 78 Ind., 668; Meyer v. Bohlfing, 44 Ind.^.
288: Taber v. Hutson, 5 Ind., 823. Evidence of the pecuniary condition of
the defendant has been held admissible by a majority of the courts of laste
lesort in this country in suits for malicious prosecution^ and in cases in-
22S DAMAGES.
-solving analogous questions ; but the reasons given therefor by the yarious
<sourt8 are not uniform. Some hold that such evidence is admissible upon
^he theory that it tends to prove a wide range of influence upon the part of
4;he defendant, and that a slander published, or a criminal charge falsely
^nd maliciously preferred, by one with a lar^e social and financial influence,
would likely inflict a more serious injury than if published or preferred by
one whose influence was less extensive ; while upon the other hand, it is
4ield by many court43 that this kind of evidence is admissible only in cases
^vhere punitive damages may be assessed, and upon the theory that the
.imposition of a pecuniary penalty against one of limited means might be
oppressive, while, if the same amount were assessed against one possessed
of large wealth, it would be but lightly felt, and the stern vengeance of the
law would be practically lost, so the jury should be advised of the con-
•^ition of the fleece borne by the lamb, and temper the wind accordingly.
A considerable number of reputable authorities deny the competency of
such evidence in all cases except where some essential right of jthe plaintiff
may be involved in the defendant's financial circumstances. A large ma-
jority of the best-considered cases, however, is in favor of its competency
upon the one theory or the other.
** In the following cases it was decided to be competent in malicious pros-
ecution suits: Johnson v. Smith, 64 Me., 655; Humphries v. Parker, 53
Me., 502; Winn v. Peckham, 42 Wis., 493; Whitfield v. Westbrook, 40 Miss.,
311; Peck v. Small, 85 Minn., 465; 29 N. W. Rep., 69; Coleman v. Allen.
79 Ga., 637; 5 S. K Rep., 204; Weaver v. Page, 6 Cal., 681; Bump v. Belts,
23 Wend., 85. See, also. Abb. Tri. £v., p. 654; Sedgw. Dam., p. 88. Suits
for malicious prosecution, in so far as the measure of damages is concerned ,
are closely analogous in principle to suits for seduction and slander, and in
4the latter classes of cases proof of the defendant's financial standing has
^en held competent in the following cases: Brown v. Barnes, 39 Mich.,
^11; Hayner v. Ck>wden, 27 Ohio St., 292; Bennett v. Hyde, 6 Ck>nn., 24;
Buckley v« Knapp, 48 Mo., 153; Hosley v. Brooks, 20 111., 115; Karney v.
Paisley, 18 Iowa, 89; Clem v. Holmes, 83 Grat., 722; Lavery v. Orooke, 52
Wis., 612; 9 N. W. Rep., 599; Wilson v. Shepler, 86 Ind., 275; Shewalter
V. Bergman, 123 Ind., 155; 23 N. £. Rep., 686. In harmony with this array
of authorities we are constrained to hold that the trial court committed no
«rror in admitting the evidence. The evidence was elicited from the appel-
lant upon his cross-examination, and his counsel make the objection that
it was not proper, because the subject had not been inquired into in the
'examination in chief. This ground of objection was not stated in the
•court belo\^, therefore it cannot be considered on appeal. Besides, it is
rarely held reversible error to admit competent evidence upon cross-exam-
ination, though in violation of the usual rules governing the examination
of witnesses. A wide discretion is accorded to trial courts upon such ques-
tions, and it Is only in instances showing a wanton or reckless abuse of
discretion that appellate courts feel justified in interfering. The damages
were assessed by the jury at $400, and, considering the circumstances of the
oase and the fact that the jury was not limited to mere compensation for
4he injury, we do not deem the assessment excessive. The judgment L^
4iffirmed." Sezson v. Hoover (Ind.), 27 N. £. Rep., 105 (1891).
DAMAGES. 529
§ 35. The rnle in some states. — The rule of law allowing
the infliction of exemplary damages is not uniform in all of
the states. In some it exists in a modified forra,^ and in others
it does not exist at alU In some it is abolished bv statu-
tory enactments. But it is not within the province of this
work to enter upon more than a cursory discussion of the
question; reference must be had to works treating upon the
subject of damages in general.'
YIII. Excessive Damages.
§ 86. Excessive damages defined. — Excessive damages are
■damages assessed by a jury in an amount unreasonably large
and beyond the warrant of law.* If there is a legal measure
of damages which the jur}^ has deviated from, either by
finding less or more than the plaintiff is entitled to by a clear
preponderance of the evidence, the trial court will, in the ex-
ercise of a sound judicial discretion, entertain a motion for a
new trial on behalf of the party injured by the finding.*
§ 37. Motion for new trial for excessive damages. — Lord
Mansfield said: "I should be sorry to say that in cases of per-
sonal torts no new trial should ever be granted for damages
which manifestly show the jury to have been actuated by pas-
sion, partiality or prejudice. But it is not to be done without
very strong grounds, indeed, and such as carry internal evidence
of intemperance in the minds of the jury. It is by no means
to be done where the court may feel that, if they had been
on the jury, they would have given less damages, or where
they might think the jury themselves would have completely
discharged their duty in giving a less sum. Of aU the cases
left to a jury, none is more emphatically left to their sound
discretion than such a case as this, and, unless it appears that
the damages are flagrantly outrageous and extravagant, it is
difficult for the court to draw the line."*
1 Barnard v. Poor, 21 Pick., 880 188; Nutter v. J. R R. Co., 18 Ind.,
(1826). 479; McDonald v. Walker, 40 N. Y.,
s Bayer ▼. Barr, 8 Neb., 68 (1875). 651: Walker ▼. Smith, 1 Wash, a
>See Sutherland on Damages, a C, 162; 1 Sutherland on Damages,
most excellent treatise upon the sub- 810.
ject. ^Gilbert ▼• Bartenshaw, Gowp.,
« 1 Rap. A L. , Law Die. , 475 (1888). 280.
•Berry v. Vreeland, 21 N. J. L.,
84
530 DAMA0B8.
Hr. Justice Story said that a verdict should not be set aside
for excessive damages, in cases of tort, ^^ unless the court can
dearly see that the jury have committed some very gross and
palpable error, or have acted under some improper bias, influ-
ence or prejudice, or have totally mistaken the rules of law by
which the damages are to be regulated." ^ This language of
Mr. Justice 8tory is quoted with approval, several of the many
other cases on the subject are reviewed, and the court, by
Mr. Justice Matthews, adds: ^^ In no case is it permissible for
the court to substitute itself for the jury and compel a com-
fiance on the part of the latter with its own view of the facts
nn'evidence as the standard and measure of that justice which
the jury itself is the appointed constitutional tribunal to
award." *
Applications of thb law. —
L In cases where the damages have been held to be eroeesiTO.
n. In cases where the damages have been held not to be ezcessiva
L Cases WmsRS the Damages Have Been Held to be Excbssivx.
(1) $1,000^ On a technical arrest.
Flemming was a detective on the police force in the city of Augosta
when the Fire Association of Philadelphia had issued a policy of insurance
upon the house of a man named Goes. The house was burned, and the
company, believing it was burned for the purpose of getting the insurance,
refused to pay. Litigation followed. Flemming was employed to work up
the case. He worked upon it a while, and then removed to Savannah.
Then a detective named Bagby took it up. While the grand jury were in-
vestigating the matter, Flemming returned to Augusta on business ; after
attending to which he started to return. Mr. Carroll, counsel for the com-
pany, informed Bagby that he wanted Flemming before the grand jury, and
requested him to go and stop him. Bagby found Flemming at the depot,
about to leave, and said to him, "I want you in that Goss case," or
something to that effect* Flemming considered it an arrest by Bagby. No
authority to make the arrest was shown or demanded. Flemming ex-
pressed regret, saying he had paid his fare to the city of Savannah, and
was anxious to get there. Bagby went to the ticket agent, who refunded
Flemming's fare. Flemming then accompanied Bagby down the street to
the police headquarters. On the way, Flemming said to a person he met.
** I am under arrest." Before reaching the police headquarters, he met
1 Whipple V. Manufacturing Co., 3 550; 6 Sup. Ct Rep., 501 ; Clarke v.
Story, 661 (1841). American Dock & Improvement Cob^
s Barry v. Edmunds, 116 XT. S., 85 Fed. Rep., 470 (1888).
DAMAGES. 531
Mr. Carroll, who had been in conference with him about the arson case fre-
quently before this time. Flemming mentioned to him that he was dis-
appointed in not going to Savannah, lyir. Carroll told him that he wonld
make that all right; but nothing was said as to his having been arrested by
Bagby. When he got to police headquarters, however, he informed the
chief of police that he was under arrest; and Bagby said, ** Yes.*' Chris-
tian, the chief of police, said, *' I will be responsible for him." Bagby then
went up stairs in the same building to see the solicitor-general, from whom
he procured a subpoena, which was immediately served upon Flemming ;
and after the subpoena was served upon him, he went at large. Flemming
did not think, until after all this had occurred, to ask by what authority he
was arrested. He sued these corporations, and obtained a verdict of $1,000
for malicious arrest and false imprisonment. A motion for new trial wa^
made, and overruled.
On the question of damages, Hall, J., said: "The provisions of law re-
lating to malicious arrest are intended to protect and remunerate those
who have been wantonly abused under color of authority. If such author-
ity is assumed for purposes of oppression and wrong, such action should be
upheld. But we seriously doubt whether any case was made here at all ;
and we are not very well satisfied that any damage was incurred on ac-
count of the action complained of. It is clear that if any arrest was made
at all, or if there was any compulsory detention of the party alleged to
have been arrested, it was constructive rather than an actual arrest and
detention. It certainly does not appear, from the beginning to the end of
this transaction, that any arrest was ever contemplated by Mr. Bagby ; and
if he did make an arrest, it was a trespass for which he alone was person-
ally responsible. Flemming had never been charged with any crime in
connection with this burning that the grand jury was investigating ; and
he knew, or ought to have known, that he was wanted only for one pur-
pose, which was to testify. He had never disobeyed any subpoena, because
he had never been served with one to appear and testify before the grand
jury, and was therefore not in contempt of any process of the court. If
Bagby acted in this way, he was acting beyond the scope of his instruc-
tions and the business he was employed to transact. We do not very
clearly perceive how his conduct in this matter was ratified by this com-
pany or any of its agents. Flemming was kept away from his home only
a single day. He was not treated with any indignity, or placed under any
unusual restraint, even for a small portion of that day. It was not shown
that his character was in the least- affected ; and we certainly think that,
if this company was liable at all, the finding against it was so excessive as
to betray bias in favor of the plaintiff, or prejudice against the defendant
in the original suit, or else show that the jury misapprehended the law ap-
plicable to the transaction.** Fire Ass'n v. Flemming, 78 Ga., 788; 8 S. E.
Rep., 420 (1887).
(2) $1,065.55 ^ProaeGiUion for fnalicious mUehief.
Phoebe Thomas rented land to Morgan S. Thomas, which he cultivated
in corn in the summer of 1872, his term expiring March 1, 1873. In August,
1872, he entered into a contract whereby he sold his part of the crop to
532 DAMAGES.
Rufus Calef, to be delivered in the shock on the ground. Delay oocurred
in estimating the quantity of the corn, so that the transaction was not
finally closed between Calef and Morgan until March, 1878. Phoebe rented
the land on which the corn was to John Thomas for the year 1873, his
term commencing March Ist of that year. Calef neglected to remoTe the
com until late in May (whether by the consent of John or not was in con-
troversy), and then commenced to remove it with ox teams. Phoebe ob-
jected to the use of ox teams in removing the corn, insisting that they would
damage her land more than horses; but no heed was given to her objec-
tion. John commenced plowing for the spring crop before the corn was
all removed, and made frequent complaints to Phoebe that Calef was not
removing his corn sufficiently fast to enable him to progress with his work.
Calef had been notified previously to remove the corn, and there was evi-
dence tending to show that the two teams employed for that purpose by
him, and which were constantly engaged at it, were not sufficient to re-
move the corn fast enough to keep out of the way of the teams in plowing.
Finally Phoebe burned, on one occasion, several of the shocks of corn, and
shortly afterwards a number more, in all sixty shocks. Calef, after the
burning, saw her, and she acknowledged that she had burnt it; he went
to the state's attorney and made a statement in regard to the matter. He
was advised that she be prosecuted for malicious mischief. The state's
attorney prepared an affidavit charging her with burning the corn, which
Calef took to a justice of the peace, swore to it and obtained a warrant for
her arrest. She was arrested, went before the justice, waived an exam*
ination, and gave bail for her appearance at the next term of the circuit
court, to answer to an indictment, etc. At the next term of the court
the case was presented to the grand jury, who ignored the bill and she
was discharged. She then brought an action against Calef for malicious
prosecution. On the trial the jury returned a verdict for $1,055.55, upon
which judgment was entered, and Calef appealed to the supreme court.
In delivering the opinion reversing the judgment Scholfield, J., said:
*' We are by no means satisfied that the defendant did not show probable
cause for the prosecution. The plaintiff was guilty of conduct which, if not
malicious, certainly was exceedingly reckless, and we are unable to appre-
ciate upon what basis so large a verdict can be predicated. We are not
satisfied that the evidence shows that the defendant withheld from the
attorney the knowledge of any material facts affecting the question of
the plaintiff's guilt, and if not, the verdict should be for the defendant on
the ground that he acted under the advice of competent counsel*" Calef v.
Thomas, 81 IlL, 478 (1876).
(8) $6,000 --Illegal arrest
A creditor bid off the personalty of his debtor at a sale on execation,
took actual possession of it, and put it into the hands of an agent to be
sold under an agreement with the debtor that after the debt and costs
were realized from the proceeds of the sale the debtor should have the bal-
ance. Before the debt was paid under this agreement the debtor broke
into the place where the goods were kept and removed and disposed of
them. He was thereupon arrested for larceny on the complaint of his
DAMAGES. 533
creditor, who acted upon the advice of counsel. He was confined only a
few hours and was admitted to bail. Afterwards he brought an action
for malicious prosecution against his creditor and on the trial was awarded
$10,000 by the jury. A remittitur of $4,000 was entered and judgment
for $6,000 rendered on the verdict. It was held so grossly excessive as to
evince prejudice, passion or misconception on the part of the jury, and a
remittitur of $4,000 would not cure the error. The remainder was also
grossly excessive. Lowenthal v. Strong, 90 lil., 74 (1878).
(4) $9,000 — Arrest on charge of treason.
The defendant, in August, 1818, commanded thn United States army at
BurUngton, and caused the plaintiff to be confined five days. He was then
brought to a trial by a court-martial instituted by the defendant on a
charge of iTeason, having been in company with two British officers and
with having given information to the enemy. He was acquitted. The
evidence exhibits the defendant as having made violent declarations as to
what he would do with the plaintiff. He was a witness before the court-
martial and stated that the plaintiff made communications relative to the
enemy which were false. One witness, however, testified before the court-
martial that he believed the communications were true. On the other
hand it appeared that the defendant had strong grounds for believing the
plaintiff to be a suspicious character. One witness stated that the plaint-
iff was at Alsburgh, about a mile this side of the line, at the time the Brit-
ish were coming to Plattsburg ; that two British officers had come into the
house where the plaintiff was, and that the plaintiff was a trader back and
forth and had been for some time. The defendant was shown to be a man
of liberal education with a yearly income of about $60,000. On these gen-
eral facts the jury gave $9,000 damages. A motion was made for a new
trial on the ground of excessive damages. The motion was allowed.
Spencer, J., said: '* Although it be true the defendant possesses a large
fortune, I cannot but believe that the verdict proceeded from intemperance
and passion and that the damages are enormously disproportioned to the
case as shown by the testimony.*' McConnel v. Hampton, 12 Johns., 284
(1815).
(5) SSO,000— Illegal arrest on charge of stealing coal
A warrant was issued against Hugh Martin on the 17th day of March,
1886. Twelve days later he was arrested on a charge of stealing coal and
brought before the justice. On the examination he was required to give
bail in the sum of $800, in default of which he was sent to jail. On the 5th
day of April he sued out a writ of habeas corpus and was discharged.
After his release he brought an action for malicious prosecution against
Martin O. Walker and Guy H. Cutting. On the trial the jury found for
the plaintiff, assessing his damages at $20,000. The defendant appealed.
In delivering the opinion of the supreme court reversing the judgment,
Breese, J., said : ** It seems to us the jury did not give proper weight to
the evidence of respectable men; that the plaintiff's character was not
good ; that he was not an object on which they should lavish so much gen«
eroeity ; that nothing which the uppeliants did, however malicious, de-
534 DAMAGES.
manded al tlie hands of the jnry such ^a yengef nl bolt aa they hnrled at
them. The conduct of one of them while attending the trial, though evinc-
ing a high degree of malice, though it manifested a reckless disr^pard of
the feelings of the appellee, and a spirit of bravado and peraeoution, not
to be tolerated, and most unjustifiable, yet, with all this, the yerdict for
the wrong is outrageous. No impartial, unprejudiced man can, for a single
moment, indulge in the supposition that appellee was entitled to $90,000.
The judgment is roTersed and the cause remanded, that a new trial may
be had. It is eminently a fit case for the consideration of another jury.**
Walker et al. ▼. ICartin, 48 III, 008 (1857).
Q. Cases WmouB m Dauagbs Hats Been Held Not to be Bzobsbivb.
(1) $M — FalH impriaonfMnt
Culver was a merchant at Rock EsUs and procured Bispham to assume
the office of constable and arrest Clarence E. Bailey, a young lad, for break-
ing the glass of his show-case. The boy was about crossing the river,
when Bispham, who claimed to be a constable, arrested him, and took
him to a shop where Price was, and told the boy that Price was a justice of
the peace. Price told Bispham to take him to his house and he would go
down and get Culver, which was done, and soon after Culver came in.
There was then a trial. Culver was sworn and claimed damages for his
show-case, which he swore the boy had broken. Judgment was then ren-
dered against him for about $3. Price then said he would have to pay or
he would have to send him to jail. Culver then said he would have to
settle it or go to the jug. Price said he could give bond with two respect-
able men for signers. The boy told him he would have to go over the
river to get signers. Price then wrote out a bond, and Bispham took it and
the boy across the river, where he obtained one man to sign his bond, then
they recrossed the river and got another man on the bond, and the boy
was released. He was in custody about two hours. He had never refused
to pay for the show-case. After his release the boy brought an action for
false imprisonment against Price, Bispham and Culver, and the jury found
for the plaintiff $125.
On appeal Justice Breese said: '*This case shows a transaction of an
atrocious character. If the boy broke the show-case, it is not pretended
he did it wilfully. He was only responsible as for a trespass. Tet he was
dealt with as a criminal, and by men, two of whom assumed falsely to be
officers of the law« ... It was a wanton invasion of his rights u^der
the cloak of the law, and without any palliating circumstances, and had
the jury found a Isrger verdict we would not have disturbed it." Price
et aL V. Bailey, 66 lU., 48 (1872).
(2) $760-^ Wrongfully cawing an attachment to he levUd upon exempt
goods,
John Nelson sued out a writ of attachment and caused it to be levied
upon the goods of Sigvart O. Danielson, exempt from levy and sale, upon
an affidavit that Danielson was indebted to him in a certain sum then due.
DAlfAGBS. 635
and that he was about to leave the state with the intention of having his
efleots removed from the state, when, in fact, a part of the indebtedness
was evidenced by a promissory note not then due, and Danielson was at
that time seeking employment, and was making no preparations to leave
(he state, which facts were known to Nelson when he sued out the writ*
and Danielson had offered to give a mortgage to secure the indebtedness,
which Nelson had agreed to accept, but sued out the attachment before
the time agreed upon for the giving of the mortgage. It was held in an
action for malicious prosecution at the suit of Danielson that a jury would
be authorized to find that Nelson sued out the writ without probable cause
and was actuated by malice, and that a verdict for $750 was not excessive.
Nelson v. Danielson, 83 111., 545 (1876).
(8) $8t5 — Justice perverted for the purpose of private oppression,
Burt sued Place in an action for malicious prosecution. On the trial it
appeared that on June 13, 1826, the defendant obtained three warrants to
be issued against the plaintiff by a justice of Oswego county, and upon
which he was arrested and brought before the justice on June 25, 18d6.
The defendant then declared on three causes of action. The plaintiff denied
all of them and asked for an adjournment, but being unable to give bail
the adjournment was refused, the causes tried and a judgment rendered in
each suit for damages and costs, etc. Upon obtaining these judgments an-
other warrant was procured against the plaintiff, which being returned
forthwith, judgment was rendered and an execution issued, on which the
plaintiff was arrested and committed to jail. He appealed and the judg«
ments were reversed. To prove malice it was shown that the defendant*
after obtaining the warrants, put them into the hands of a constable of Os-
wego county, telling him that the plaintiff was at work in Onondaga county,
and hiring him to decoy the plaintiff into Oswego county so that he might
arrest him. The constable w*ent after him but found he had left the place.
About two months afterwards he happened in Oswego county and was ar-
rested. When the defendant put the warrants into the constable's hands
he told him that the plaintiff had got a verdict against him at Whitestown
for almost $800 and he wanted to get some judgments to offset it, and if
he would give up that judgment he would let him go clear. When he was
arrested the defendant retained an attorney to prevent him from being
employed by the plaintiff, telling him, " I have a fellow coming that I am
going to train, and I want to buy you to hold your tongue ; *' adding that
if be did not engage for the plaintiff the latter would not be able to obtain
counsel, as there was no one else he could get, he having employed every
other attorney in the place; and telling him further: '* He has got a judg-
ment against me for $275, and now Tve got him Til train him until he
g;ives that up, that judgment." On the next day the attorney asked him
if be had obtained his judgments and if they were for the same property
which he set off on the former trial: to which he answered: "If it is, that
is my business.*' The jury, under the direction of the judge, found a ver^
diet for $825. It was objected that the verdict was excessive. In the su-
I>reme court Marcy, J., said: *'It is true that the jury gave liberal dam-
636 BAMAOES.
ages, but the conduct of the defendant was such as seemed to call for strong
reprobation. The sacred functions of a tribunal of justice were perverted
to the purposes of private oppression. He who is proved guilty of this
desecration should, for example's sake, meet with unstinted justice.**
Judgment tat plaintiff. Burt v. Place, 4 Wend., 691 ; 10 L. C. P. Ckx, 718
(1880)i
(4) S900^-Lareeny of a BatO'handle of the value of troenty-five cents.
Bennett Carson charged that Leopold A. Jenner, Luke G. Butterfield
and Mary L. Barr wrongfully, maliciously, and without probable cause,
instituted a criminal prosecution against him before a justice, by wrong*
fully, maliciously, and without probable cause, charging him in an affidavit
which the defendant Jenner signed, at the instigation of his co-defendants,
with the larceny of a saw-handle of the value of twenty-five cents, and a
certain saw-log of the value of $5, the property of Mary L. Barr. The
complaint charges that the defendants, without probable cause, maliciously
caused the plaintiff to be arrested and prosecuted on such charge, and thai
the latter was duly acquitted thereof, and discharged. Upon trial there
was a verdict and judgment for the plaintiff, assessing his damages at $900.
From this he appealed.
Mitchell, J. : The amount of the verdict seems to us quite out of propor-
tion to any injury which, so far as appears, the appellee could have sus-
tained ; but as we can discover nothing which raises a suspicion that the jury
acted from prejudice, partiality or other improper motives in making their
assessment, and as their verdict met the approval of the court in which the
judgment was pronounced, we do not feel warranted in disturbing their
conclusion. Judgment affirmed. Jenner et aL v. Carson, 111 Ind., 520;
13 N.£. Rep., 44(1887).
(5) $1 f 000 -^ Arrest tcithout reasonable grounds of suspicion.
Cawrey rented a house of Chapman for a month and paid the rent. One
Saturday afternoon after the expiration of the term, Cawrey was tempo-
rarily absent, leaving.his furniture in thp house. Upon his return he found
it fastened up, whereupon he forced open the door and entered. Then
Chapman ordered him to leave the premises, but he refused and told Chap-
man not to enter, threatening violence to him if he did sa Chapman then
made an affidavit to the effect that Cawrey did break into his store-house
and threaten to kill him if he (Chapman) interfered with him (Cawrey).
Upon this affidavit a warrant was issued the same night by a justice of the
peace, which Chapman gave to an officer and ordered Cawrey to be arrested
after he had gone to bed, and, without allowing him an opportunity to pro-
cure bail, had him taken to the jail and there imprisoned until Monday
morning, thirty-six hours, when upon examination he was discharged.
Cawrey then brought an action for malicious prosecution against Chapman*
On the trial the jury gave him $1,000. On appeal the question of excessive
damages was raised.
In affirming the judgment, Chief Justice Breese said: No reasonable
ground of suspicion supported by any circumstances existed at the time
DAMAGES. 5S7
of this transaction, or linked with it, to warrant a cantionn and prudent
man to believe that appellee was guilty of any criminal offense. . • •
Then why this harsh and hasty proceeding against him, at that unusual
liour of the night, of all of which appellant was the causeless instigator^
and in all of which he was such an active participant? • • • Malice
crops out in every part of this transaction. . • • Were then the dam*
ages excessive? One thousand dollars, in a case like this, so far from being
outrageously excessive, as claimed by appellant, are moderate. Chapman
v. Cawrey, 60.111., 612 (1869).
(6) $lfOOO — Maliciously procuring an indictment
Mr. Charles A. Montross signed a bond for costs with one Ward in a suit
of his against Henry C. Bradsby, whereupon Bradsby filed an affidavit stat-
ing that Montross was insolvent. Montross, feeling indignant at Bradsby,
went before the grand jury, then in session, and procured an indict-
ment against him for perjury. Previous to going before the grand jury
Montross applied to his attorney, but he declined to give him any advice aa
to Bradsby's guilt, but referred him to the state's attorney. Montross,
however, did not advise with that officer, but acted on his own responsi-
bility. At the same term of the court a nolle prosequi was entered and
Bradsby discharged. He then brought an action against Montross for
malicious prosecution. On the trial it appeared that Montross was in real-
ity insolvent. The jury found for the plaintiff $1,000. Upon an appeal
the supreme court affirmed the finding. ** Under the evidence we do not
think this a case where the verdict is so excessive that it ought to be dis-
turbed." Montross v. Bradsby, 68 111., 185 (1873).
(7) $1,000 -- Abuse of process.
The plaintiff, who was a trader, found himself falling behind, and in
December, 1888, sold out his entire stock to Mr. Braastad, a responsible
merchant in the vicinity, and took his note at short time for the amount.
He notified his creditoro of his condition, and offered to pay them thirty
cents on the dollar. There was testimony tending to prove this a fair offer.
Defendant Delamater, as agent for one of the creditors, went to him and
endeavored to get a better offer, but did not succeed. He then, on Satur-
day, swore to an affidavit for arrest before the defendant Bassett, who
was a justice of the peace, under the fraudulent-debtor act, and late on
Saturday night,— as sworn to by Bassett— about 11 o'clock, a warrant
was issued, plaintiff was brought before Bassett and Committed, and under
this commitment imprisoned. The testimony tended to show that the pro-
ceedings of Delamater and Bassett were such as to involve intimidation
and oppression of a very gross kind ; that the action of the justice was
taken after midnight, or on Sunday morning. It also tended to prove that
Bassett was acting as adviser and counsel for Delamater, and was for this
reason disqualified thereby from acting judicially. The jury returned a
verdict for $1,000, and defendants appealed.
In delivering the opinion of the supreme court, Campbell, J., said: "If
plaintiff's testimony was true, the case was one of very aggravated malice.
The time of night, and the fact of the arrest being made near midnight and
£88 DAMAaxs.
»
on the eve of Sunday, would necessarily aggravate the grievance to a man
who has no acceesihle means of relief, counsel or deliverance at hand.
Most of the worst facts were in immediate connection with the prepara-
tion and issue of the commitment itself. So the anomalous position of
Bassett as at once counsel and judge was proper to he shown, not only to
fihow malice, but to show want of jurisdiction. West v. Wheeler, 48 Mich.,
fi05; a a, IS N. W. Rep., 886. A justice cannot act hoth as magistrate
and counsel. It would be very absurd to hold, as is urged, that in such an
action as this the justice^s entries are conclusive in his favor, and that the
surrounding facts must be shut out. The verdict was not laz^e enough to
indicate that the jury found anything in the charge to influence their
minds. The judgment must be affirmed." Stensrad ▼• Delamater, 56
Mich., 144; 22 N. W. Rep., 272 (1885).
(8) $800 — Arrest upon charge of conspiracy.
The plaintifiTs daughter, Jane Burtis, was employed for a short time as
a servant in the defendant's family, and about that time she became preg-
nant, and afterwards was deUvered of a still-born child. It was claimed
by her that the defendant was the father of the child. Her father, the
plaintiff, reported that the defendant was the father of his daughter's child,
whereupon the defendant caused the plaintiff to be arrested upon the
charge of conspiracy with his daughter to obtain money from him, and
Injure him in his business and reputation. Upon a preliminary examina-
tion the plaintiff was discharged. He now claims that the prosecution was
malicious. There was a trial by jury, which resulted in a verdict and
judgment for the plaintiff for $800. The defendant appealed. Judgment
affirmed. Burtis v. Chambers, 51 Iowa, 645; 2 N. W. Rep., 503 (1879).
(0) tUSOO — Arrest on charge of burglary.
Where a party who had always borne a good character, and was em-
ployed and trusted by a wholesale firm with their goods and the key of
their establishment, was arrested on a charge of burglary, under circum-
stances not sufficient to raise a shadow of suspicion, and imprisoned, his
house searched, and the prosecutor refused to make reparation by publish-
ing an article exonerating him from the charge, it was held by the supreme
court of Illinois that a judgment for $1,200 was not excessive. Hirsh v.
Feeney, 88 UL, 548 (1876).
(10) $Ui7B — JfoZicioiM arrest and imprisonment for larceny.
In January, 1878, Roy sold a farm to Goings, giving him a bond for a
deed when certain payments were made. Gk>ing8 gave Roy his note for
$278.47, a part of the purchase-money, payable on the Ist day of March,
1879. To secure the payment of this note, Gk>ing8 and his son executed a
chattel mortgage on all the crops that should be raised on the farm in
1878, with a clause that Roy might foreclose it at any time he should feel
that the debt was insecure. Goings planted a crop of corn and tobacco.
Among the corn he planted some pumpkins and beans. Gk>ings did not
live on the farm ; his home was about two miles away. There were no
DAMAGES. 689
buildings on the farm saitable to secure the crops, and when matured he
cut the tobacco and removed it to his home, where there were suitable
buildings to cure it. Goings had paid $110 on the mortgage. After the
tobacco was cured he returned it to the farm where it was raised. Roy
tried to buy the corn crop, but they could not agree upon the price. When
the beans were ripe Goings hauled a load of them home for the purpose,
as he claimed, of threshing them. The next morning Roy heard of this,
and posted a notice on a tree in the vicinity, that he had taken the crop
and would offer it for sale under the mortgage. Goings gathered and
hauled away another load, and when Roy learned this he went to Goings'
home and told him that he had advertised the property for sale, and that
he would put him in jail if he did not quit gathering the beans. Goings
insisted that Roy had no right to foreclose the mortgage, and he should
gather the beans, as he had a right to. Three days afterwards, while Go-
ings and his children were gathering the beans, Roy bad him arrested for
larceny. Being unable to give bail, he was confined in the county jail for
twenty-seven days, and discharged after the grand j^ry had refused to in-
dict him. In an action for malicious prosecution a judgment for $1,273
was sustained. Roy v. Goings, 112 111., 656 (18b9>
(11) tUSOOfov maJiciou8proaecution^S500for tHander,
One day a stranger stepped into Mr. WalPs shop in Charlestown and
bought a cigar. He had a $90 bill changed. As Wall was changing the
bill another stranger entered by the rear door and asked him a question
about some real estate. He answered the question and then discovered
that his till had been robbed and the stranger had disappeared. Naturally
enough he concluded they were in collusion. He filed a description of the
man who bought the cigar in the oflBce of the chief of police. A few days
afterwards, being in Boston, about noon he saw a person whom he thought
he recognized as the man who bought the cigar. He followed him a short
distance and then caused his arrest, upon information, by a policeaaan.
All three of them went to the station. Here Wall repeated the story of the
robbery, adding that the man was a sharp thief and he had left a descri|H
tion of hivi with the chief of police. The captain in charge of the station
examined the description and found it did not correspond with the man
under arrest. Then the captain sent for two of his acquaintances whom
the man under arrest claimed to know. When they came in they reoocr-
nised the man as a respectable citisen, and requested Wall, who was pres-
ent, to go ahead with the examination, but he refused. He slated the
ohargea, but deoKned to answer any question, saying he knew his man
mnd that he was the smartest thief in the state. The police captain was
now satisfied it was a case of mistaken identity, but he detained him until
Wall could return to Charlestown and procure a warrant tor his arrest. Wall
soon returned with two oi&cers, who took Che man to Charlestown, and,
having searched him, took his watch and money from him and committed
him to a cell in the police prison. Here Wall again repeated his charges,
and the roan's friends arriving soon afterwards, and being known to one
of the officers, assured them that the man was a respectable citizen. He
was brought out of the cell and permitted to sit in the marshal's offioeb
540 DAMAGES.
Two persons were then brought who had seen the mnn in Wairs shop.
One said, upon looking at him, ** He is not the roan;" the other tbooght
he was. 'Wall persisted in saying that he knew his man and waald give
$10,000 rather than have him get away. Towards night his friends pro-
cured bail for his appearance the next morning and he was released. He
appeared next morning. The person who on the previous day tliought he
identified him was present as a witness, but upon reflection he stated that
he was not the man. Wall then requested that he be discharged, aiid it
%\ AS done. No complaint was made and no warrant was ever issued in the
ca«3. The man's name was Mitchell, and he sued Wall for false imprison-
ment and slander. He recovered $1,500 for the former and $500 for the
latter. Mitchell v. Wall, 111 Mass., 498 (1873).
(12) $1,700 for an aggravated false imprisonment
Charles A. Renoe. without the slightest foundation, charged Robert
Wilson with the larceny of a load of coal and procured his arrest. He ap-
peared as prosecutor. His conduct seems to have been to gratify bad
passions, causelessly excited. The arrest was attended with the most de-
grading and humiliating circumstances ; Wilson, ** a reputable young man,
being confined all night with miserable creatures, offscourings of the slums
and alleys of a large city, picked up by the policemen in their daily rounds,
in a room crowded and filthy, with no bed but sawdustt and no food but
scanty bread and cold water ; taken thence to a police magistrate, through
the public streets to a police office, exposed to the gaze of the populace,
and to the jests and ribaldry of passers-by, who might think proper to in-
dulge in them. And this, too, where there was no semblance of criminal
conduct and no act done which could be tortured into crime. To say, under
these circumstances, that $1,700 damages was so outrageously excessive as
to require us to set aside the verdict is what we cannot say, though we are
free to say we should have been better satisfied with a less verdict ; but as
the jury have the right to give exemplary or punitive damages, for whicJino
very definite rule can be prescribed, the verdict must stand." Chief Justice
Breese, in Renoe v. Wilson, 49 111., 95 (1868).
(18) $£,000 — Maliciously suing out a torit of attachment
Hagerman brought an action against Lawrence to recover damages for
maliciously suing out a writ of attachment without probable cause and
causing the same to be levied upon four carloads of hogs which he had
shipped to Chicago. A long litigation followed, in which the attachment
was not sustained. At the date of the levy Hagerman was doing a pros-
perous business, with a good and advantageous credit. His business was
utterly broken up and his credit impaired by the ill-advised and inconsid-
erate act of Lawrence. On the trial the jury returned a verdict for $2,000,
to which on appeal the defendant objected as excessive.
Mr. Justice Scott, in delivering the opinion of the court, said : " We
cannot regard the verdict as being excessive, in view of all the conse-
quences that followed from suing ont the writ, if it was in fact malicious
and without probable cause, as the jury have found.*' Lawrence v* Ha-
german, 56 III, 68 (1870).
DAMAGES. 641
(14) $3,000 ^ Illegal arrest for refusing to give up child.
In April, 1888, the defendant procared an absolute divorce* from the
plaintiff. The decree awarded the custody of the children to the defend-
ant. He had two of them, but the plaintiff kept from him the possession
of the youngest. In August, 1888, the defendant found his child with the
plaintiff, her mother, in a restaurant in New York. He had the decree
which entitled him to his child, and the wife (the plaintiff) refused to give
her up. A policeman was called, and the dispute drew a crowd of people.
The policeman finally, by direction of defendant, arrested the plaintiff, and
conducted her to the station-house. The sergeant in charge took a minute
of some charge, it does not appear what, and, the wife still refusing to give
up the child, she was locked up in the station-house all night with the little
daughter, the subject of the dispute. On the next morning the police jus«
iice gave up the child to the defendant* and discharged the plaintiff. On
the trial the plaintiff recovered $8,000 ; the defendant appealed.
Barnard, P. J. : The only dispute is as to the fact whether the arrest and
detention was caused by defendant's order, and the jury have found for
the plaintiff upon the issue. The defendant mistook his remedy. He could
have taken the child by force, if the decree allowed^ in a gentle manner,
but he could not arrest the plaintiff because she refused to voluntarily give
up the child. Assuming an illegal arrest, the damages are not excessive.
The plaintiff was taken in a public place, and conducted through a public
street to the station-house, and detained in a lockup or cell under sur-
roundings which would humble and humiliate her. There was no evidence
tending to show that the arrest was made for a breach of the peace, or for
acts which tended to a breach of the peace. The arrest was a mistake in the
law on the part of the police officer, and the only question was whether
the defendant directed it. The judgment should be affirmed. Montjo v.
Hontjo, 58 Hun, 145; 6 N. T. Sup., 132 (1889).
(15) $4^000 — Illegal arrest for forcibly entering a house.
In an action for malicious prosecution and false imprisonment the jury
found a verdict for the plaintiff, with $4,000 damages. The defendants
moved for a new trial solely because of excessive damages.
Wheeler, J., said : *' At the trial it appeared that the plaintiff was, so far
as was shown or claimed, a respectable woman, the wife of a ship-carpen-
ter, and the mother of a family of six daughters, some of whom were
grown np and away, and others were small and at home. She was arrested
at the instigation of the defendants on what the jury found to be false
•charges of forcible entry into a house of one of the defendants, where she
had been living with her family, and of an assault upon the other defend-
ant, and of a gross breach of the peace, and taken before a police court,
and committed to jail with disorderly women, in deftiult of bail imme-
diately required under pretense of awaiting trial, and afterwards required
to give sureties of the peace without trial, without any reasonable or prob-
able cause, for the purpose of getting and keeping her away from the
house until the defendant could put out her things and tear down the
house. The actual pecuniary damages might be small ; but the disgrace^
6i9 DAMAGES.
humiliation and shame of being arrested and sent to jail on anch chaz:ge8»
for the sense and suffering of which she was entitled to recover damageo*
might be great. What would be adequate compensation conld be meas-
ured by no standard, and the amount might properly be enhanced by the
wanton disregard of the plaintiff's personal rights in taking such proceed-
ings. Day V. Wood worth, 18 How., 303. It must rest in the judgment
and discretion of the jury, and remain there, unless the jury are clearly
made to appear to have departed from the exercise of their judgment and
discretion. There is nothing shown nor claimed in that d isolation nnleas
it is to be inferred from the amount of the verdict. That is not so very-
great, in view of all the circumstances of the case, aa to show that it was
reached otherwise than by considerate estimate. The motion cannot be
granted but by an arbitrary exercise of the judgment of the court over
that of the jury. On a matter purely of fact, confined by the law to that
of the jury, this would be manifestly improper. Motion denied." Clarke
V. American D. ft L Ca et al., 35 Fed. Rep., 478 (1888).
(16) $5^000^ On charge of burning toarehouses.
The defendant and his son were the owners of two warehouses, in whi<^
were stored a quantity of wooden ware. On the night of July 7, 1883, they
were set on fire, and, with their contents, were destroyed. On the 18th of
the same month the defen dant made a complaint to a justice of the peace,
charging that the plaintiff, his wife, and one C^eorge L. llaney, set the fire.
A warrant was issued, and they were arrested and brought before the
justice.
In the meantime the defendant sent for the district attorney, who, ac-
companied by the sheriff, reached hira on the evening of the 13th. The
district attorney found the complaint defective, and tliereupon dismissed
the prosecution then pending, drew another complaint, and instituted an-
other prosecution against the same parties for the alleged burning. The
constable transferred the custody of the plaintiff to the sheriff, who held
him under the warrant issued on the second complaint. The accused par-
ties waived an examination before the justice, and were committed to the
jail for want of bail. They were detained there for several weeks. They
finally procured bail and were released. An information charging them
with the burning was filed against the accused parties by the district at-
torney, and they were subsequently tried in the circuit court for the crime
charged and were acquitted.
Spear then brought an action to recover damages for such i^-osecution,
and his consequent imprisonment. The jury found for the plaintiff,
$5,000. A motion for a new trial was denied. The defendant appealed.
Lyon, J., said: It is said that the damages are excessive. The testimony
tends to show that the plaintiff was greatly wronged by the defendant in
the matter of the criminal prosecution, in that his reputation was wantonly
assailed and his rights entirely disregarded. We do not say these things
were proved, but the testimony is suflicient to uphold a special verdict to
that effect. Besides, it is now a verity in the case that the prosecution of
the plaintiff by the defendant for a serious crime was malicious and with-
out probable cause. Considering these circumstances, which makes the
DAMAGES. 643
case a proper one for the infliction of punitory damages, and considering
also that the defendant has large wealth (as appears by the testimony), we
are unable to say that the damages awarded by the jury are so large as to
justify the interposition of this court. The judgment must be affirmed.
Spear ▼. Hiles, 67 Wis., 850; 80 N. W. Rep., 500 (1886).
(17) $8,000 — Proaecution of witnesaea against the company in damage
suits for perjury,
W. W. James brought an action for a malicious prosecution against the
Gulf, Colorado & Santa Fe Bailway Company, Webster Snyder, its gen-
eral mana^^er, ani James Spillane, his clerk, in causing his arrest and
prosecution for perjury. A trial resulted in a verdict for the plaintiff
against the railroad company alone, for the sum of $8,000 actual damages,
upon which judgment was rendered. The defendants Snyder and Spillane
were discharged.
The affidavit made by Spillane, upon which the arrest and prosecution
of James were had, charged that in a civil cause pending in the district
court of Galveston county, wherein one A, W. Fly was plaintiff and ap-
pellant was defendant, brought to recover damages for personal injuHes
caused by the derailment and wreck of a passenger train of appellant, the
said James testified by deposition falsely, wilfully and knowingly as fol-
lows: ** I saw a loose wheel on a hind passenger coach, with a hot box"
(referring to a passenger train of appellant ac Rosenberg, about the 20th or
25th of April, 1884), " and the car inspector of appellant packing said box.
The wheel had slipped from Its proper beiurings, and the axle had worn
bright by the friction of the wheel. The car inspectors of the company
and the Sunset route were both present, and saw the condition of the
wheel ; and while the box was being packed the inspector of the Sunset
route remarked, 'That if the car was on his line he would set it out' This
remark was made in my hearing. Cannot remember the exact conversa-
tion that took place, but it was to the effect that it was dangerous to send
that car on. I was under the impression that the car would be set off ; but
when I saw the train go on, remarked to the inspector of the company,
* It was a d — d bad job.* He remarked, 'I guess sheMl run.' I saw the
train on its arrival at Rosenberg depot. It was not in a condition to pro-
ceed on its journey with safety, in consequence of the wheel of one of
the coaches being loose. Am satisfied that the train was wrecked in con-
sequence of the condition of the wheel. The company's inspector after-
wards told me he was required to report the condition of the train on the
morning of the accident, and asked me what he should say. I told him
to tell the truth. He said he would do no such thing ; he would report
only a few hot boxes. On the morning of the day of the accident one of
the coaches had one loose wheel. My attention was attracted by the con-
dition of the wheel. It was so glaring I could not pass it unnoticed. I
did not ask Snyder, the general manager, for a position on his road or in-
timate that I desired one." An appeal was taken to the supreme court, in
which it was claimed that the damages were excessive.
In discussing the question. Hobby, J., said : '* In the case of Railroad Co,
V. (Gordon, 70 Tex., 90; 7 a W. Rep., 695, it is said ' that if the verdict in
544 DAMAGES.
one material respect was the result of prejudice, passion, or other influ-
ence, not arising from a dispassionate consideration of the evidence, the in-
ference is very strong,' when it was for a large sum, that that feature of it
was similarly controlled. In the case cited special issues were submitted
to the jury, directing them to respond in their findings as to whether the
accident was caused by a defective road-bed, or was tJie result of a defect-
ive locomotive. There was an affirmative reply to each issue thus sub-
mitted. The objection was made to the verdict in that case, as in this,
that it indicated passion and prejudice, and was contradictory. The court
recognized it as being inconsistent, so far as it held that both were the effi-
cient cause of the accident. But it was said that this did not furnish a
sufficient reason for a reversal if, by looking to the entire case, it was as-
certained that the verdict was uninfluenced by other improper motive. It
was ascertained, in looking to the assignment in that case as to the excess-
ive verdict, that the amounts sued for — $25,000 actual, and $25,000 ex-
emplary, damages for personal injuries — were assessed by the verdict.
** Pursuing the rule adopted in the case cited, and considering the as-
signment in this case complaining of the verdict being excessive, we find
the amount sued for as damages caused by the alleged malicious prosecu-
tion of appellee for the offense of perjury to be $15,000 actual, and $15,000
exemplary, damages, and the amount found in his favor to be $8,000 actual
damages, — but little in excess of one-half of the actual damages claimed,
and under evidence to the effect that the result of the prosecution was to
break the appellee up; prevented him in a measure from obtaining em-
ployment: required him to perform labor he had not previously done; and
estranged from him those, or many of them, with whom he had associated
in his business vocation. It will be seen, then, that in looking to the
amount of damages assessed, and considering it in connection with the in-
consistency of the verdict with respect to the feature of it referred to, it
cannot, we think, be said that it shows that the verdict was the result of
improper influences, or is contrary to law, or indicative of that misconduct
which would authorize a reversal upon that ground." Gulf, C. &S.F.
R*y Co. V. James, 73 Tex., 12: 10 So. Rep., 744 (1889).
(18) $10yOOO — Illegal arrest for embezzlement.
The plaintiff, as cashieri had been in the defendants' employment four
years and had an established character for honesty. During that time the
daily receipts of defendants* firm averaged $1,500 per day, not a dime of
which was unaccounted for by the plaintiff. A charge was made against
him of a debt due to the firm from his brother, which they claimed was
to be paid by him and which they sought to set up against his salary.
Plaintiff denied any understanding that his brother's debt was to be
charged against his salary, and upon leaving the establishment he appro-
priated to the payment of the salary due him the sum of $166 out of
moneys of the firm in his hands. This was known to the defendants and
they knew he claimed the right to do so, and that he made the proper
entry in the book against himself, insisting that he had the right to do this.
For this act he was arrested for embezzlement upon the complaint of one
of the firm, gave bail for his appearance on a subsequent day, and was
DAMAGES. (45
examined and diBcharged. The jury, in the action brought by him againofe
•the members of the firm upon the third trial, found for the plaintiff and
aesessed his damages at $10,000. The defendants appealed.
In delivering the opinion of the supreme court, Breese, J., said: "The
'facts go far to show that the defendants had formed a determination to
iprosecute the plaintiff at all hazards for a crime which they had every
Tight to know he had not committed. The evidence fully establishes mal-
ice. After his discharge by the magistrate one of the defendants said : ' If
anybody comes to me to inquire after plaintiffs character, I will say that
^fae stole $166 from me and that he is a thief and liar.* ... To judge
>from the amount of damages assessed whether the jury have acted from
prejudice or passion, the circumstances of the case must be well consid-
ered. Here, in this case, was a causeless attempt, by a wealthy house, to
blast forever the character of a young man just entering upon the active
pursuits of life, with no endowment but his talents, fair character and uni- .
form integrity. To him these were a priceless possession, in comparison
-^ith which the amount awarded by the jury is trifling indeed. We cannot
perceive, in the amount assessed, sufficient indications that in finding it
'the jury were actuated by prejudice or passion or any unworthy motive.
It was a powerful house, making a heavy charge against a poor and friend-
less young man, placed in peculiar circumstances, which, if true, would
have consigned him forever to a doom more dreadful than the grave, and
forced him to become a wandering outcast on the face of the earth. There
is no standard by which damages in such a case shall oe measured. Much
is committed to the intelligence of the jury. Much faith is reposed, and
must be, in their sense of right and justice. We cannot say they have gone
astray, and cannot, therefore, disturb this verdict." Ross v. Innis, 86 UL,
487 (1864).
§38. New trials for excessive damages. — The rule for
granting a new trial on the ground of excessive damages in
actions for malicious prosecution and false imprisonment is
well settled. To justify the exercise of this power the dam-
ages must be flagrant, outrageous and extravagant, evincing
intemperance, passion, partiality or corruption on the part of
the jury.*
IX. Consequential Damages.
§ 39. Consequential damages defined. — Consequential dam-
ages are, as the term implies, those which the cause in ques-
tion naturally but indirectly produces.
An example: The defendant was liable for killing a mare. The plaintiff
suffered an injury in the loss of the animal to the extent of her value, but
circumstances gave her an additional value to him. The mare had an un-
1 Walker et al. v. Martin, 48 DL, 508 (1867); McCk)nnell v. Hampton, 19
Johns., 284 (1815).
85
546 DAHAOB8.
weaned oolt, and she was suckling the colt of another mare which had
died. The direct consequence of the killing of the mare was her loss —
the necessity of employing other means to raise the colts was consequen-
tial. ^
§ 40. The rale In actions for maliclons prosecution and
false Imprisonment stated by Sutherland. — When the ac-
tion is for a tort committed with no bad motive, the damage
which the injured party is entitled to recover are such as will
compensate such injury as might reasonably have been ex-
pected under the particular circumstances, to ensue; such asy
according to common experience, and the usual course of
events, might reasonably be anticipated. The consequential
injury must proceed from and be caused by the wrongful act
of the defendant; but the matter is not to be tested meta-
physically or by any occult principles of science, but rather
as persons of ordinary intelligence apprehend cause and effect,
and see one fact proceed from another.'
Application of the law. —
(1) Attorney fees^ not consequential
SoTinebom sued A. T. Stewart for maliciously instituting proceedings
in bankruptcy against him. On the trial the defendant asked the court to
instruct the jury that if they found for the plaintiff they could not, in es*
timacing the damages, consider the fees of counsel in prosecuting, the case.
This instruction was refubed.
On error to the supreme court of the United States it was held to have
been erroneously refused.
Strong, J. : ** The fees of counsel in prosecuting this case were no part
of the consequences naturally resulting from the action of the defendant
in suing out the warrant in bankruptcy." Such fees are not recoverable.
Stewart v, Sonneborn. 98 U. S., 187 (1878). Citing Good v. Ingliss, 8 Pa.,
51 ; Alexander v. Herr, 11 Pa., 687; Stopp v. Smith, 71 Pa., 285; Hicks v.
Foster, 18 Barb. (N. Y.), 663.
(8) Imprisonment of pregnant tooman^ Effect on offspring, too remote.
Hiles was the owner of two warehouses in which was stored a large
quantity of wooden ware. One night in July, 1888, they were set on fire
and burned with their contents. A week later Hiles made a complaint
before a magistrate charging that one Spear, his wife and Qeorge L. Haney
were guilty of the crime of burning his warehouses. A warrant was issued
^Teagarden v. Hetfield, 11 Ind., ^i Sutherland on Damages, 21.
522 (1858); 1 Sutherland on Dam- (1888); Hoadley v. N. Trans. Ca, 115-
ages, 20 (1888). liase., 804 (1874).
DAKAGSS. 547
and the parties arrested and brought before the magistrate for examination.
The prosecuting attorney of the county, having examined the complaint,
found it insufficient and dismissed the prosecution. He however drew
another complaint for the same offense. A second warrant was issued and
they were again arrested. They waived an examination, and being unable
to give bail were committed to jail. Here they remained for several weeks*
when they were able to procure bail and were released. An information
was filed against them by the prosecuting attorney, upon which they were
ultimately tried and acquitted in the circuit court. Spear's wife then
brought an action against Hiles for a malicious prosecution. On the trial
the jury rendered a verdict for |9,000. The defendant appealed.
At the time plaintiff was confined in prison she was with child, and waa
delivered thereof in the following December. Dr. Robinson attended her
in prison, and officiated at the birth of her child. He testified that he
found her in prison, suffering nervous prostration, followed by indigestion
and debility ; and the drift of his testimony is that in his opinion such con-
dition was produced by the nervous shock caused by her arrest and incar-
ceration, and still continues to some extent; and that, while she may
recover, he does not look for a speedy recovery. He also testified that a
pregnant woman in that condition would be liable to give birth to a mon-
strosity or a deficiency; also that the plaintifTs child, when born, was per-
fect so far as he then knew, but that, at the time of the trial, nearlv two
years later, it was defective in the brain, spinal cord, and nervous system^
Dr. Robinson went to Europe in April, 1884, — about four months after the
birth of the child, — and did not return to Wisconsin until May, 1885. It
does not appear that he knew or suspected the child was deficient until
after his return. He was permitted to testify, against the objection of de-
fendant, that in his opinion the cause of the deficiency in the child was
the nervous, prostrate condition in which he found the plaintiff in July^
1883.
In discussing this question Lyon, J., said: Dr. Robinson was a compe-
tent witness to the condition of the plaintiff when he saw her in jail, and
afterwards. He was competent, also, to give his opinion, as an expert, as
to the nature and probable future effects of her condition upon herself, and,
perhaps, upon her unborn child. But, in view of the facts that it is com-
mon knowledge that there are numerous causes for physical, mental or
nervous deficiency in children ; that healthy women do sometimes give
birth to deficient children ; that nervous or otherwise unhealthy women
often bear healthy children ; and that Dr. Robinson detected no defect in
the* plaintiffs child until it was nearly a year and a half old, we think the
authorized limits of expert testimony was greatly exceeded when he was
allowed to give his opinion that the deficiency in the plaintiffs child was
caused by the nervous prostration of the plaintiff during her pregnancy.
The testimony should have been excluded. This testimony may have
been, probably was, prejudicial to the defendant The deficiency of the
child is not a proper element of damages in this case : yet the very large
sum at which the damages were assessed raises the apprehension — almost
the presumption — that the damages were materially increased by reason
of the admission of such improper testimony. The judgment was reversed*
Spear v. Hilee, 67 Wis., 856; 80 N. W. Rep., 511 (1886).
I III
548 DAMAoisa.
(8) Di^posiium of aneU after dis9olutum of attaehment too remote.
In April, 1874, the plaintiffs in thia action, who had been for several
years established in partnership business in Le Suear, in this state, pur-
chased a stock of hardware of the defendant, Livingston Qoackenbuah, and
gave him their joint note therefor for the sum of $1,903, payable in two
years, with interest. The note was afterwards transferred to defendant
Peter Quackenbush. Thereafter, in the year 1875, the plaintiffs sold to
defendant Halsey one-third interest in their partnership business and stock
in trade, and the business then proceeded under the joint firm name of
Cochrane, C!osgrove & Halsey. Afterwards, in the spring of 1876, nego-
tiations were entered into between plaintiffs and Halsey for a transfer to
him of their entire interest in the partnership stock and business. While
these negotiations were pending, and about May 17, 1876, the defendant,
Peter Quackenbush, acting through the defendant, Livingston Quacken-
bush, as his agent, brought an action against the plaintiffs, and caused a
writ of attachment to be issued therein, upon an affidavit and bond made
and filed by the defendant Livingston, under which the sheriff proceeded
to levy upon the joint property of the plaintiffs, and also the stock and
partnership property of Cochrane, Cosgrove & Halsey, and took possession
of the same. The attachment was soon afterwards vacated. This action
is brought by the plaintiffs jointly for damages resulting from the issuance
of the attachment, which they allege was sued out maliciously and with-
out probable cause. In addition to the facts above recited, the complaint
alleges that the defendants Quackenbush acted in collusion and in con-
spiracy with Halsey in causing the attachment to be issued, and with the
design to destroy the credit and business of plaintiffs, and to compel tliem
to sell out their interest in the stock and business of the firm to Halsey at
less than its value. Defendant Halsey did not answer. The action was
dismissed at the trial as to Peter Quackenbush, and the plaintiffs had a
verdict against the defendant, Livingston Quackenbush, who appealed.
Vanderburgh, J. : '* On the question of damages the evidence was im-
properly received, against the defendant's objection, of the disposition of
the partnership subsequent to the attachment, including the appointment
of a receiver (in a suit by the plaintiffs for a dissolution of the partnership),
the inventory of the stock and the loss and shrinkage in the assets on the
receiver's sale. Whether the plaintiffs were constrained to take this coarse
by the influence of creditors or otherwise, it was of their own election, and
this particular disposition of the assets was not the proximate result of the
attachment, and was too remote to be considered. Donnell v. Jones, 18
Ala. (N. S.), 509 et seq. Judgment reversed.'* Cochrane v. Quadcenbush,
29 Minn., 876; 18 N. W. Bep,, 155 (1882).
X. Measure of Damages.
§ 41. Measore of damages in actions for mallclons prose-
tlon and false imprisonment. — In actions for personal wrongs
it is difficult and indeed impossible precisely to estimate the
measure of damages which is supposed to repair the damages
complained of. This most be to a certain extent matter of
1
BAMAOSS. 549
sentiment and feeling, nnder the guidance of soand judgment^
duly weighing all the circumstances of the case. Hence we
can find but very little satisfaction in the examination of the
reported cases on this subject. It is a question not susceptible
of any fixed and definite rule. If the jury is, however, guilty
of an abuse of its power, the court will set aside the verdict.
But, according to the language of the English and American
adjudications, to justify the court in doing this, the damages
assessed ought to appear at first blush outrageous, or mani-
festly to exceed the injury, and such that all mankind would
at once pronounce unreasonable, so as to induce the court
to believe that the jury have acted from prejudice or partial-
ity, or were influenced by some improper consideration. It
is not necessary that the court should believe that the jury
acted corruptly. It is sufficient to set aside their finding if it
appears that their feelings were so excited or their passion
inflamed as to mislead their judgments and induce them to
give a verdict which their own sober reflection would not
approve.*
§ 42. Measore of damages — The law stated by Greenleaf.
" Whether the plaintiff has been prosecuted by indictment, or
by civil proceedings, the principle of awarding damages is the
same; and he is entitled to indemnity for the peril occasioned
him in regard to his life and liberty, for the injury to his rep-
utation, his feelings and his person, and for all the expenses
to which he necessarily has been subjected. And if no evi-
dence is given of particular damages, yet the jury are not
therefore obliged to find nominal damages only. Where the
prosecution was by suit at common law, no damages will be
given for the ordinary taxable costs, if they were recovered
in that action; but if there was a malicious arrest, or the suit
was malicious and without probable cause, the extraordinary
costs, as between attorne}" and client, as well as all other ex-
penses necessarily incurred in defense, are to be taken into
the estimate of damages." '
Discussion of the subject — Maliciously suing out a writ of
attachment: In this instance the amount of money actually
1 Walker et al. v. Martin, 43 lU., ^2 Greenleaf on Evidenoe, g 456.
50S (1867); McCk>nneU v. Hampton,
12 Johns., 294(1815).
550 DAMAGES.
paid out in and about the defense of the suit, and the deprecia-
tion of the stock, are not the only damages sustained, if a per-
son wrongfully, unjustly and maliciously and without probable
cause sues out a writ of attachment and causes it to be levied
upon the property of another. If the business of the persoa
whose property is attached bad hitherto been prosperous, his
credit and financial reputation good, and have been destroyed
by the malicious acts of the person suing out the writ, can it
be said that the law will afford him no redress for the de*
struction of his financial credit and reputation, and mete out
no measure of punishment to the guilty party who wantonly
and maliciously destroys them? The reputation and credit of
every man, especially men in business, is of great value, and
is as much within the protection of the law as property or
other valuable rights. It may be laid down as a safe rule of
law, that where one person has maliciously and by his wrong,
ful act destroyed the business, credit and reputation of an-
other, the law will require him to make good the loss sus-
tained.^
Applications of thb law. —
(1) Measure of damages — Voluntary submission to imprisonment under a
void writ
Edwin L. Shedd was a constable of LoweU, Massachusetts. He arrested
Curtis L. Allen, and committed him to jail on an execution in favor of one
J. L. Kenniston, issued from the court of common pleas, and dated Septem-
ber 5, 1849, and returnable to said court on the second Monday of December,
1849, which was more than three months from its date. Allen then gave
a bond for the prison limits, conditioned to surrender himself to the jailer
in ninety days, etc. At the expiration of the time, he appeared with his
counsel, and offered to surrender himself to close confinement, but the
jailer informed him that he had received no order to confine him, and he
went away. Allen then brought an action against Shedd and Kenniston
for false imprisonment. On the trial, the foregoing facts appearing, the pre-
siding judge ruled that the plaintiff was bound to know the law, and that
the execution was void under Revised Statutes, chapter 97, section 9 ; that
he was not entitled to compensation for remaining within the prison limits
during the ninety days, although he acted iu good faith ; but that he was
entitled to reasonable compensation for going to the jailer to surrender
himself, and then to discharge his sureties on the bond. The verdict was
for $4.75. The plaintiff excepted to the ruling, but the supreme court over-
ruled his exceptions, saying, *' He was under no obligation to stay upon
1 Lawrence v. Hagerman, 56 111., 68 (1870) ; Chapman v. Kerby, 49 IlL, 211
<1868).
DAMAaSS.
551
the limits on a void execution. It was voluntary if he did so stay, and for
his detention during that period he could recover no damages." Allen v>
Shedd et al., 10 Gush. (64 Mass.), 875 (1852).
(2) Measure of liaMity — Prosecutors acting in good faith but in ignorance
of the law — Unconstitutional statutes.
Hill prosecuted Taylor for false imprisonment in heing concerned in an
^unlawful arrest, and obtained a judgment against him for damages, which
was brought up on writ of error.
The proceeding under which he claimed to have been arrested was on a
•complaint made before a justice of the peace in Washtenaw, for an alleged
-embezzlement in Wayne county. This action was based on section 7005
of the Compiled Iaws of Michigan, which authorizes embezzlement by va-
rious public agents, or by private agents under written instructions or
4igreements as to disposal of property, to be prosecuted in the county where
the complainant*s principal place of business may be.
Campbell, J. : Although there are some cases where by the rules of law
that might be deemed the locus delicti, it cannot be seriously claimed that
the prosecution can be had in a county where the crime was not actually
or in contemplation of law perpetrated. The constitutional guaranty on
this subject is too plain to be controverted. Swart v. Kimball, 43 Mich.,
444; 5 N. W. Rep., 635. And the warrant in this case was on its face in-
■valid, as issued for an offense beyond the jurisdiction of the justice who
issued it.
But we think the court below, while properly holding it void, went too
far in holding that if the warrant was illegal the defendant would be liable
substantially to the same extent, whether he believed it valid or not It
•is undoubtedly true that every one is bound to know the law, and is liable
for actual damages for his trespass, though honestly committed. But
there ia no such conclusive presumption of an actual knowledge of the law
as will make a party guilty of malice when he is acting in reliance upon
what he has reason to believe and does believe is lawful. If a man actu-
ally believes a statute to be constitutional which is unconstitutional, the
case must be a very plain one which would make such ignorance of the
law culpable. Black v. Ward, 27 Mich., 191. A man in the pursuit of
legal remedies may lawfully do things which cannot be justified by any
high sense of honor. If he does the same things unlawfully, but with not
only an actual but also a reasonably founded belief in their lawfulness,
while he is responsible for wrongs done, it would be very unjust to hold
him to the same measure of liability as if the acts done were in known de-
fiance of law. This particular statute has never been passed upon by' this
court, although there is reason to believe that it has been acted on. There
are cases to which it may lawfully apply. See People v. McKinney,. 10
Mich., 54. The defendant ought not to have been put on the footing of an
intentional law-breaker, when be had the concurrence of the regular crim-
inal authorities of Washtenaw county in his proceeding, unless it was
«hown — and we find no evidence of this — that he was conscious of the
illegal quality of his act and did it in knowing disregard of law. T^iU v»
"Taylor, 50 Mich., 549; 15 N. W. Rep., 899 (1883).
CHAPTER XV.
THE JURY AND ITS FlNDINOa
§ 1. The verdict defined.
2. Verdicts are of three kinds.
I
8. A general verdict.
4. A special verdict.
6. Rules of law as to special verdicts.
6. Special findings.
7. Material questions of fact defined.
8. Special verdict inconsistent with general verdict.
9. Degree of inconsistency required.
10. A question of practice.
11. Special findings in actions for malicious prosecution and false impris-
onment.
12. Forms of submission for special findings.
18. Forms of special findings.
Applications of the law.
(1) The law applied in a Michigan case.
(2) Special findings control the general verdict.
§ 1. The verdict defined. — In the practice of the law a
verdict signifies the unanimoas decision made by a jury and
reported to the court, in matters lawfully submitted to them
in the course of the trial of a cause.^
§ 2. Yerdicts are of three kinds. —
(1) General.
(2) Special.
(3) Special findings.
§ 3. (I) A general verdict. — A general verdict is one bjr
which the jury pronounce at the same time on the fact and
the law, either in favor of the plaintiff or defendant.'
§ i. (a) A special verdict. — A special verdict is one by
which the facts of the case are put on the record, and the law
is submitted to the judges.' The jury have an option, instead of
finding the negative or affirmative of the issue, as in a general
1 2 Bouvier's Law Die, 622. »2Bouvier'8 Law Die., 623; Lit.
2 Coke on Littleton, 228; 4 Black. Sel. Cas., 876; Bertrandv. Morrison^
Com.. 461; La. Ck>de of Practice, Breese (111.), 175 (1827).
art. 519; 2 Bouvier*8 Law Die, 622.
THB JUBY AND ITS FINDIKQ8. 663
verdict, to find all the facts of the case as disclosed by the
evidence before them, and, after so setting them forth, to
conclude to the following effect: " That they are ignorant, in
point of law, on which side they ought, upon those facts, to
find the issue; that if upon the whole matter the court shall
be of opinion that the issue is proved for the plaintiff, they
find for the plaintiff accordingly, and assess the damages at
such a sum, etc.; but if the court are of an opposite opinion,
then they find vice versaP This form of finding is called a
special verdict. In practice they have nothing to do with the
formal preparation of the special verdict. When it is agreed
that a verdict of this kind is to be given, the jury merely de-
clare their opinion as to any fact remaining in. doubt, and
then the verdict is adjusted without their further interference.
It is settled under the correction of the judge, by the counsel
and attorney on either side, according to the state of the facts
as found by the jury, with respect to all particulars on which
they have delivered an opinion, and, with respect to other
particulars, according to the state of facts which it is agreed
that the\' ought to find upon the evidence before them. The
special verdict, when its form is thus settled, is, together with
the whole proceedings on the trial, then entered on record;
and the question of law arising on the facts found is argued
before the court in bank, and decided by the court as in case
of a demurrer. If either party be dissatisfied with their de-
cision, he may afterwards resort to a court of error.^
§ 5. Bales of law as to special verdicts. — It has been com-
petent for juries at common law, since the statute of 13 Ed-
ward I., to find a general verdict, or, when they have any
doubt as to the law, to find a special verdict, and refer the law
arising thereon to the decision of the court. By a special
verdict, the jury, instead of finding for either party, find and
state all the facts at issue, and conclude conditionally that if
upon the whole matter thus found the court should be of the
opinion that the plaintiff has a good cause of action, they then
find for the plaintiff, and assess his damages; if otherwise,
then for the defendant.^ The rules of law as to special ver-
dicts and their requisites have long been settled both in this
i2Bouvier'RLawDic., 623. Dunleavy, 129 111., 132; 22 N. IL
2 2 Tidd'8 Practice (Am. ed.), 8»7, Rep., 15 (1889).*
and note; C. A; N. W. R*y Co. v.
5S4 THB JUBT ASD US FINDINOS.
oountry and in England. Thus, it is held that they should
find facts, and not the mere evidence of facts, so as to leave
nothing for the court to determine except questions of law.'
To authorize a judgment upon a special verdict, all the facts
essential to the right of the party in whose favor the judg-
ment is to be rendered must be found by the jury; finding
sufficient evidence, prima /aciey to establish such facts, is not
sufficient.' If probative facts are found from which the court
can declare that the ultimate facts necessarily result, the find-
ing is sufficient.' A special verdict cannot be aided by intend-
ment, and therefore any fact not ascertained by it will be
presumed not to exist.*
§ 6. (3) Special findings. — In cases in which the jury render
a general verdict they may be required by the court, upon the
request of either party, to find specially upon any material
question of fact stated to them in writing. This practice
seems to be an innovation upon the common law and exists
in many of the states of our Union by virtue of statutory en«
actments. As an illustration of the subject under discussion,
we present the statute of Illinois, which, we think, may be
taken as a fair example of this class of modern legislation.
Verdicta of juries,
§ 1. General or special verdicts in civil cases.
2. Submitting, or refusing to submit fact, may be excepted ta
8. Special shall control general verdict.
An Act in relation to verdicts of juries in civil cases.
SEcrnoN 1. Be it enacted by the People of the State of Illinois, repre-
sented in the General Assembly: That in all trials by jury in civil proceed-
ings in this state in courts of record, the jury may render, in their discre-
1 C. A; N. W. R'y Co. v. Dunleavy, 129 111., 132; 22 N. E. Rep., 15(1889);
129 III., 132; 22 N. E. Rep.. 15(1889); Blake v. Davis, 20 Ohio, 231; Ham-
Vincent V. Morrison, Breese, 227; bleton v. Dempsey, id., 168.
Brown v. Ralston, 4 Rand., 504; • C. A; N. W. R> Ca v. Dunleavy,
Seward v. Jackson, 8 Ck)w., 406; 129 111., 182; 22 N. E. Rep., 15(1889);
Henderson v. Aliens, 1 Hen. & Mun., Alhambra Addition Water Ca v.
286; Hill v. CJovell, 1 N. Y., 522; Richardson, 72,Cal., 598; Coveny v.
Langley v. Warren, 3 id., 327: Kins- Hale, 49 id., 552,
ley V. Coyle, 58 Pa. St., 461; Thomp- *Lee v. Campbell, 4 Porter, 198;
son V. Farr, 1 Spears, 98; Leach v. Tunnell v. Watson, 2 Munf., 288;
Church, 10 Ohio St., 149; La From- Lawrence v. Beaubein, 2 Bailey,
bois V. Jackson, 8 Ckiw., 589. 626.
« C. A; N. W. R'y Co. v. Dunleavy,
THB JTTBT Ain> ITS FINDIKOS. 655
tion, either a general or a special verdict ; and in any case in which they
render a general verdict they may he required by the court, and must be so
required on request of any party to the action, to find specially upon any
material question or questions of fact which shall be stated to them in
writing, which questions of fact shall be submitted by the party request-
ing the same to the adverse party before the commencement of the argu-
ment to the jury.
§ 2. Submitting or refusing to submit a question of fact to the jury
when requested by a party as provided by the first section hereof may be
excepted to and be reviewed on appeal or writ of error as a ruling on a
question of law.
g 8. When the special finding of fact is inconsistent with the general
verdict, the former shall control the latter and the court may render judg-
ment accordingly. Laws of Illinois, 1887, 261.
Decisions,
In an action for malicious prosecution, where the jury renders a special
verdict, the plaintiff cannot recover, unless such special verdict finds all
the facts essential to a recovery. Waymire v. Lank (Ind.), 22 N. E. Bep.,
735.
Where interrogatories fully cover all the controlling questions of fact,
others are properly refused. Interrogatories should call for material and
substantive facts, and not mere items of evidence, and should be clear and
as few in number as will elicit the material facts. Louisville, N. A. & C.
R CJo. V. Hubbard (Ind.), 18 N. E. Rep., 611.
Interrogatories as to the existence of isolated facts which would not affect
the general verdict, however answered, are properly refused. Hablichtel
V. Yambert (Iowa), 39 N. W. Rep.. 877.
It is the duty of the trial court to submit all special questions requested
by a party when such questions are pertinent under the issues and evi-
dence; but where no evidence has been given upon which the jury could
intelligently answer the questions asked, it is not error to refuse to submit
them. Leroy & W. R'y Ca v. Anderson (Kan.), 21 Pac. Rep., 588.
A demand for a special verdict is made too late after the testimony is
closed and plaintiff has commenced his argument to the jury. United
States Exp. Go. v. Jenkins (Wis.), 41 N. W. Rep., 957.
Special interrogatories must ask a response as to the existence of some
particular fact, and not embrace a series of facts which are necessarily in-
cluded in a determination of the general verdict. Whalen v. C, R. I. & P.
R'y Ck). (Iowa), 39 N. W. Rep., 894.
It is improper to submit interrogatories to the jury which are designed
to elicit matters of evidence. Louisville, N. A. A; C. R*y Co. v. Cauley (Ind.),
21 N. E. Rep., 546.
It cannot be said the court erred in refusing a request for a special find-
ing, where the record does not show any evidence on which to base such
special finding. Darrah v. Gk>w (Mich.), 43 N. W. Rep., 851.
Where an interrogatory is requested to be submitted to the jury, within
the issues joined by the pleadings and the evidence introduced, asking for
« more explicit answer to another interrogatory submitted, it is error for
566 THB JUBT AND ITS JfmDUXM.
the court to refuse to submit it-to the jury. American Cent. Ins. Ck>. t,
Hathaway (Kans.), 88 Pac. Rep., 428.
Where a party does not insist on having the jury answer a special in-
terrogatory at the time the verdict is returned, the omission to answer it ia
not available on appeal. BCack v. Leedle (Iowa), 42 N. W. Rep., 086.
§ 7. ^^ Material questions of fact '' defined. — In giving con-
struction to these statutes, the first, and perhaps most impor-
tant question, relates to the scope and meaning of the phrase,
^' material question or questions of fact." May such questions
relate to mere evidentiary facts, or should they be restricted
to those ultimate facts upon which the rights of the parties
directly depend ? Evidently the latter. Not only does this
conclusion follow from analogy to the rules relating to special
verdicts, but it arises from the very nature of the case. It
would clearly be of no avail to require the jury to find mere
matters of evidence, because, after being found, they would in
no way aid the court in determining what judgment to ren-
der. Doubtless a probative fact from which the ultimate fact
necessarily results would be material, for there the court could
infer such ultimate fact as a matter of law. But where the
probative fact is merely prima fade evidence of the fact to be
proved, the proper deductions to be drawn from the probative
fact presents a question of fact and not of law, requiring fur-
ther action by the jury, and it cannot therefore be made the
basis of any action by the court. Kequiring the jury to find
such probative fact is merely requiring them to find the* evi-
dence and not the facts, and results in nothing which can be-
of the slightest assistance to the parties or the court in arriv-
ing at the proper determination of the suit.^
§ 8. When the special finding is inconsistent with the
general verdict the former controls — In what such incon*
sistency consists — The law stated by Justice Bailey. —
When a special finding of fact is inconsistent with the gen-
eral verdict, the former shall control. This necessarily implies
* C. & N. W. R'y Co. V. Duuleavy, ing every imaginable phase of the
22 N. E. Rep., 15 (1889); 129 111., 132. evidence, seems to prevail, but the
This is the doctrine and rule of prac- practice mast be condemned as tend-
tice laid down by the supreme conrt ing to obstruct the administration of
of the state of Illinois. In some justice and as subserving no useful
states a rule of practice of submit- purpose,
ting a multitude of questions, cover-
THB JUST AND ITS rtNDIKGS. 557
that the fact to be submitted shall be one which, if foand, may
in its nature be controlling. That can never be the case with
a mere evidentiary fact. A fact which merely tends to prove
a fact in issue, without actually proving it, cannot be said to
be, in any legal sense, inconsistent with a general verdict,
whatever that verdict may be. Such inconsistency can arise
only where the fact found is an ultimate fact, or one from
which the existence or non-existence of such ultimate fact
necessarily follows, and that is never the case with that which
is only prima facie evidence of the fact sought to be proved.
The common law requires that verdicts shall be the declara-
tion of the unanimous judgment of the twelve jurors. Upon
all matters which they are required to find, they must be
agreed. But it has never been held that they must all reach
their conclusions in the same way and by the same method of
reasoning. To require unanimity, not only in their conclu-
sions, but in the mode by which those conclusions are arrived
, at, would in most cases involve an impossibility. To require
unanimity, therefore, not only in the result, but also in each
of the successive steps leading to such result, would be prac-
tically destructive of the entire system of jury trials. To
illustrate, suppose a plaintiff, trying his suit before twelve
jurors, should seek' to prove a fact alleged in his declaration
by giving evidence of twelve other facts, each having an inde-
pendent tendency to prove the fact alleged. The evidence
of each probative fact, or the conclusions to be drawn from
it, might appeal with peculiar force to the belief or judgment
of some one of the jurors, but less so to his fellows* The
cumulative effect of all the evidence might be such as to leave
no doubt in the mind of any member of the panel as to the
truth of the fact alleged, still, if the jury were required to
find specially as to each probative fact, no one of the twelve
facts would be at all likely to meet with unanimous concur-
rence of the entire jury. As to each they would be compelled
to confess their inability to agree, or what would be its
equivalent, say they did not know or could not tell; which,
if we apply the rules governing special verdicts, would be
tantamount to a finding that the fact was not proved or
did not exist. If such finding should be required, and should
be given the effect of conirulling the general verdict, the rQ-
558 THB JUBT Ain> ITS FINDINGS.
suit would be that under suoh system of trial general verdicts
could but seldom stand. However natural the curiosity par-
ties may have to know the precise course of reasoning by
which jurors may arrive at verdicts either for or against them,
they have no right, under guise of submitting questions of
fact to bo found specially by the jury, to require them to give
their views upon each item of evidence, and thus practically
subject them to a cross-examination as to the entire case.
Such practice would subserve no useful purpose, and would
only tend to embarrass and obstruct the administration of
justice.*
Decisions,
Where answers to special interrogatories camnot be reconciled with the
general verdict, and such as find the facts are not inconsistent with one
another, they wiU control the general verdict, notwithstanding there may
be an inconsistent answer to one of them which consists merely of a legal
conclusion. Beckdoit v. Grand Rapids A; L R. Ck>. (Ind.), 15 N. £. Rep.,
6»6.
Where special questions are submitted to and answered by a jury, and
such answers are irreconcilable with each other, such answers cannot be
allowed to stand and uphold a verdict and judgment apparently against
the facts as shown by the record. Aultman, Miller & Co. v. Mickey (Kan.),
21 Pac. Rep., 254
The verdict will not be disturbed because immaterial interrogatories were
submitted to the jury, where the findings in answer thereto are not in con-
flict with the general verdict, and the general verdict could not have been
influenced thereby. Sage v. Haines (Iowa), 41 N. W. Rep., 860.
Findings are not contradictory when made according to the aUegationa
of the complaint, which states that the services sued on were rendered at
defendant's request, and in one count that he promised to pay a certain
sum therefor, and in another that he promised to pay what they were rea-
sonably worth, and that they were reasonably worth a certain sum, the
same amount claimed in the flrst count. Allen v. Haley (Cal.), 20 Paa
Rep., 90.
Though it may be implied from the answer to one interrogatory that the
jury find that certain representations were made, yet, if it appears from
all their findings that they did not intend to so find, the implication will
not be allowed to govern. Seekell v. Norman (Iowa), 48 N. W. Rep., 190.
Where there is no necessary conflict between the several flndings of a
jury, the court will not strain the language of a flndingto make out a case
of conflict. Al, Add. W. Co. v. Richardson (Cal.), 14 Pac. Rep,, 879.
If a discrepancy exists in flndings of fact by the tiial court, the more
specific findings of particular facts must control. Warder v. Enslen (Cal.),
14 Pac. Rep., 874.
1 Bailey, J., in Chicago & N. W. R'y Co. v. Dunleavy, 129 lU., 182; J82
N. E. Rep., 17 (1889).
THB JURY AND ITS FINDINGS. 559
§ 9. What degree of inconsistency is required. — In de-
termining whether the special findings are inconsistent with
the general verdict, so that the latter must be held to be con-
trolled by the former, courts cannot look at the evidence. All
reasonable presumptions will be entertained in favor of the
verdict, while nothing will be presumed in aid of the special
findings of fact. The inconsistency must be irreconcilable, so
as to be incapable of being removed by any evidence admis-
sible under the issues.^
Decisions.
Where the findings of fact are contradictory, a judgment rendered upon
them wiU be set aside. Ellsworth, M. N. & S. E. Kj Co. v. MazweU
(Kan.). 18 Pac Rep., 819.
Answers to special interrogatories cannot control the general verdict,
unless there is an irreconcilable conflict between them ; and, while there
is no presumption in favor of the answers, every reasonable intendment
wiU be made for the verdict. City of Greenfield v. State (Ind.), 15 N. E.
Rep., 241; Cincinnati, H. & I. R. Ca v. Clifford, id., 524.
Where the general verdict of a jury, and their special findings of fact,
can be harmonized and made to agree by taking into consideration the en-
tire record of the case, and construing the same liberally for that purpose,
it is the duty of the court to so harmonize them. Bevins v. Smith (Kan.),
21 Pac. Rep., 1064.
Contradiction and inconsistency in special findings is no ground for re-
versal, unless it is impossible to render an intelligent judgment upon the
facts thus found. German Ins. Co. v. Smelker (Kan.), 16 Pac Rep., 735.
The special findings of a jury are inconsistent with their general verdict
when the former, as a matter of law, wiU authorize a different judgment
from that which the latter will. Lowenburg v. Rosenthal (Oreg.), 22 Pac.
Rep., 601.
If there is any reasonable hypothesis whereby a general verdict and the
special finding can be reconciled, judgment must follow the general ver-
dict. Grand Rapids & I. R. Co. v. Ellison (Ind.), 20 N. E. Rep., 136.
§ 10. Special findings inconsistent with the general yer-
diet — Practice. — When the answers by the jury to the spe-
cial interrogatories are so inconsistent with the general verdict
as to overrule it, the proper practice, before moving to set the
verdict aside, is to make a motion for judgment on the special
jSndings non obstante veredicto notwithstanding the verdict.'
1 Pennsylvania Co. v. Smith, 98 v. Dunleavy, 129 111., 182; 22 N. E.
Ind., 42 ; McComas v. Haas, 107 Ind., Rep., 15 (1889).
612 ; 8 N. E. Rep., 579 ; Redelsheimer » Louisville, N. A. & C. R'y Co. v.
V. Miller, 107 Ind., 485; 8 N. E. Stommel (Ind.), 26 N. E. Rep., 868
Rep., 447; Chicago & N. W. R'y Co. (1890).
560 THB JUBT AND ITS FiNDnroa.
Deeisioni,
Qaestions arising upon a special verdict are prq[>erly raiaed bj motion
for judgment on the facts found, and where distinct causes of action are
presented by the complaint, there should be a motion for judgment on each
cause. Johnson v. Culver (Ind.)f 19 N. R Rep., 129.
A motion to strike out portions of a special verdict is not proper praotioeL
LouisviUe, N. A. & C. B'y Ckx v. Hart (Ind.), 21 N. EL Rep., 758.
Special findings of a jury must be consistent with each other upon ma-
terial questions, and inconsistent with the general verdict, before a trial
court will be justified in rendering judgment upon them rather than upon
the general verditt. Williams v. Eikenbury (Neb.), 84 N. W. Rep., 878.
The question of the insufficiency of a special verdict to cover the issues
eo as to entitle the party to a judgment roust be raised on motion for a
new trial or by motion for judgment upon the verdict, and not by motion
for a venire de novo. Louisville, N. A. & C. R'y Co. v. Hart (Ind.X 21
N. E. Rep., 768.
When the special findings of a jury are in conflict with the general ver-
dict, are inconsistent and so uncertain that this court cannot render judg-
ment on them, it is not error in the trial court to grant a new trial. Chicago,
I. & K. R. Co. V. Townsdin (Kan.), 16 Pac. Rep., 889.
§ 11. Special findings in actions for malieious proseention
and false imprisonment.-r- The practice of requiring special
findings is peculiarly adopted to the defense in actions for
malicious prosecution and for false imprisonment.
To maintain an action for a malicious prosecution, two es-
sential elements must concar — malice and a want of probable
cause. The inference of malice may be drawn from a want
of probable cause; bat such inference is subject to be rebutted
by proof that the prosecutor, though not able to show prob-
able cause, instituted the prosecution under an honest belief
that the plaintiff was guilty of the offense charged ; provided
such belief is founded on facts and circumstances which would
produce in the mind of a reasonable and prudent man such
serious suspicion of the plaintiff's guilt as to repel the idea
that the prosecutor was actuated by malice.^
It may be that the complainant in the criminal prosecution
complained of did not rely upon his own judgment, but took
the advice of counsel learned in the law, and acted upon such
advice in good faith. A prudent man is expected to take such
advice, and when he does so and places all the facts within
iLong V. Rodgers, 10 Ala., 826; ford v. Deitrich (AlaX 6 So. Rep.,
Ewing V. Sanford, 31 Ala., 157; Mo- 461 (1889).
Leod V. McLeod, 78 Ala., 42; Luna-
THB JUST AND ITS FUNDINGS. 661
iiis knowledge before his counsel fully and fairly, withhold-
ing no material facts, proof of this makes out a case of prob-
able cause.^
§ 13. Form of a snbmission for special finding in aetiong
for malicious proscution. —
State op , i
County of . \ ^' ^"'^^ ^^™' ^^•
A. B. J
V8, V In case for malicious prosecution.
O. D. )
Upon request of the the following questions of fact are by the court
specially submitted to the jury for their determination and report thereof
to the court :
(1) Was the motive of the defendant, in instituting the prosecution com-
plained of, malicious?
(2) Did the defendant, in procuring the warrant in question to be issued,
^ct maliciously and without any reasonable cause for so doing? <
(8) Did the defendant, in commencing the criminal prosecution against
the plaintiff, act without reasonable cause and with malice?'
(4) Did the defendant, before commencing the criminal prosecution
against the plaintiff, make a full, fair and honest statement of all the ma-
"terial facts bearing upon the question of the plaintiff's guilt to his attorney
for the purpose of procuring legal advice thereon?
(5) Did the.def endant, in making his statement to the attorney, withhold
from him any material fact in his knowledge bearing upon the question of
the plaintiff's guilt?
(6) Did the defendant, in commencing the criminal prosecution in ques-
tion, act in good faith upon the advice of counsel, or did he act upon his
own judgment?
(7) Did the defendapt commence the criminal prosecution against the
1 Humphreys ▼.' Parker, 65 Me., jury. Moore v. Northern Pao. B. Co.
502; Driggs v. Burton, 44 Yt., 124; (Minn.), 88 N. W. Rep, 884; Burton
Heyne v. Blair, 62 N. T., 19; Travis v. St Paul, M. & M. R. Co. (Minn.),
V. Smith, 1 Penn. St., 284; Cooley 22 N. W. Rep., 800; Johnson v. Mii-
on Torts, 181. ler (Iowa), 29 N. W. Rep., 747, and
> In framing these interrogatories 17 N. W. Rep., 84, and 19 N. W. Rep.
the practitioner will bear in mind 810; Ross v. Langworthy (Neb.), 14
that the existence of a probable N. W. Rep.. 515; Castro v. De
cause is a mixed question of law and Uriarte, 16 Fed. Rep., 98; G^ v.
fact. It is for the jury to determine Culver (Ore.), 6 Pac. Rep., 775 ; Sart-
what facts are proved, and for the well v. Parker (Mass.), 5 N. E. Rep.,
court to say whether or not they 807; McNulty v. Walker (Miss.), 1
amount to probable cause; but its South. Rep., 65; Bell v. Keepers
existence along with malice, that is, (Kan.), 14 Pac. Rep., 542; Bell v,
malice and the absence of probable Matthews (Kan.), 16 Pao. Rep., 97.
•cause, it is believed may be for the
86
862 THB JUBT Lsny its tindinos.
plaintiff nnder the honest belief that the plaintiff was gaUty of the offense
charged?
(8) Was such belief founded upon facts and circamstanoes aafficient to
prodace in the mind of a reasonable and prudent man each a meriaoB sus-
picion of the plaintifTs guilt as to repel the idea that he was actuated by
malice? 1
§ 13. Form of the speeial findings. —
State of ^ i
County of . f ^"^ Term, 18->
A. B. \
V8, > In
C. D. )
case for malicious prosecution.
We, the jury, to whom was submitted the questions hereinafter set forth
for special findings of the facts thereon in this case, do hereby return the
same into court with our findings thereon, in writing, as required by the
court.
(1) To the question. Was the motive of the defendant, in instituting the
prosecution complained of, malicious?
We answer, "Yes."
(2) To the question, Did the defendant, in procuring the warrant in ques-
tion to be issued, act maliciously and without any reasonable cause for so
doing?
We answer, •'Yes.'*
(8) To the question, Did the defendant, in oommencing the criminal
prosecution against the plaintiff, act without reasonable cause and with
malice?
We answer, "Yes.***
Applications of the law. —
(1) Statement of faeta.
Turner had been acting as the agent of the Phoenix Insurance Company^
of Hartford, Connecticut, at East Saginaw, Michigan, and in that capacity
had collected some premiums which he refused to pay over when it wa»
demanded by a special agent, claiming at the time the money was not due
when demanded. Thereupon he was complained of by a local agent named
McClintock, residing at East Saginaw, and arrested for embezzlement. A
hearing was had before a magistrate, and he was discharged. He then
brought a suit for malicious prosecution against the company, seeking to
hold it liable for the acts of its agents. The plea was the general issue. Oa
the trial he recovered a verdict for $8,070l The evidence showed that H. M.
1 The questions to be submitted to properly, it is recommended that at-
the jury must depend very much tomeys prepare the questions to be
upon the peculiar circumstances of submitted in duplicate, one set to
Aach case and the ingenuity of coun- be embodied in the submission, and
sel. the other to be used by the jury in
s In order to preserve the record the return of the special findings.
THE JUBT AND ITS FINDINGS. 663
Magill was the general agent for the company in Michigan, having the
general charge of its agencies and bunneesy and had his office in Cincinnati,
Ohio. T. F. Spear was his assistant and resided at Cincinnati. H. H.
Heaford was a special agent for the state of Michigan and resided at Jack-
son« All agents were authorized to make collections and remittances for
the company, and might employ an attorney when specially authorized so
to do by the general agent, Mr. Spear. Turner and McClintock had been
in business together at East Saginaw, but some time previous to the prose-
cution complained of their business relations had been dissolved, McClin-
tock continuing to act as the local agent for the company. There still
remained due from the plaintiff to the company on the 11 th day of Janu-
ary, 1878, a balance of about $50, and judgment was obtained a short time
thereafter against the plaintiff and McClintock for such balance, and it
was because of the non-payment of this balance when demanded that the
criminal prosecution complained of was instituted. McClintock made the
complaint upon which the warrant was issued, and the case was prose-
cuted at his request in behalf of the people by Michael Brennan, a lawyer,
who had his office with Wisner & Draper, and who had formerly been their
law student, and at that time occasionally received claims from their office
to collect. The claim against the plaintiff had been sent to Wisner &
Draper for collection by the company, and they had turned it over to
Brennan. Brennan, in his correspondence with Turner, in his efforts to
collect, had signed the name of Wisner & Draper to his letters, in which
a criminal prosecution was alluded to. Turner claimed that the defend-
ant authorized the criminal prosecution against him, and sought to hold
it responsible for the acts of its local agents and attorneys at Saginaw,
who. he insists, advised and took part in the criminal prosecution ; and
further claims that if the defendant did not authorize commencement of
the prosecution, it subsequently ratified what the local agents did, and the
defendant is therefore liable for the alleged illegal act. It is not claimed
by the plaintiff that the criminal prosecution was authorized, aided or
abetted, or even ratified, by the general office of the company, but by its
general and special agents at Cincinnati, and by Heaford, its special agent
in this state.
Svbmission for tpeeial findings.
On the trial, after the testimony in the case was closed, the circuit judge,
on request of defendant's counsel, submitted to the jury five requests for
specific findings, which requests and findings appear in the record as fol-
lows:
" 1. Was plaintiff prosecuted criminaUy by any agent of defendant?
••Answer. Yes.
•• 2. If you say yes to above, name the agent.
••A. Wisner & Draper, Heaford and Magill.
•' 8. If yott say yes to No. 1, state who, if any olie, acting for defendant,
authorized or directed the prosecution.
«« A. Wisner & Draper, Heaford and Magill.
'* 4. Was the act of the person commencing the prosecution subsequently
adopted or ratified by defendant's agents?
56^ THB JUST AlfD ITS FINDINGS.
"A, Yea.
"5. If you say yes to the fonrth, state what agent so ratified or adopted it
•<A. Heafordandl[agia"i
(2) The special finding etnUroU the general verdieL
Under the law providing for special findings by juries a case for malicious
prosecution was tried in Saline county, Kansas. On December 27, 1879,
Norton, Wagstaff and another, through mistake of boundary lines, went
upon the land of one Schippel and cut and carried away one or more trees
standing thereon. The prosecution was commenced, after consulting the
county attorney, before a justice of the peace. A few days after the suit
wixb begun the county dismissed it, and on the same day began a new pros-
ecution in the district court against the same parties for the same offense.
While this prosecution was still pending in the district court Norton begun
his suit for malicious prosecution.
The case was tried before the court and a jury, and the jury rendered a
general verdict in favor of Norton and against Schippel for $1 exemplary
damages, and also made special findings of fact showing the foregoing
facts, and also showing that the $1 was for exemplary damages, and that
nothing was allowed for actual or compensatory damages. The general
verdict reads as follows: "We, the jury impaneled and sworn in this
action, do, upon their oaths, find for the plaintiff, and do assess his dam-
ages in the sum of one dollar and cents exemplary." Among the spe-
cial findings are the following:
** 6. Whpt number of other trees were cut about the same time and place
oh defendant's land?
** Answer. We don't know.
"9. At the time Mr. Schippel instituted the prosecution complained of
before £. L. Norton, did he believe that the plaintiff, Wright Norton, was
j^uilty of cutting some of his timber, as charged in said complaint, with-
out right or legal excuse?
*' A. He may have believed so.
" 11. At the time defendant, Schippel, verified the complaint before E. L.
Norton upon which plaintiff and others were arrested, did he have reason
to believe that such complaint was true as to the catting or carrying away
of one or more trees on his land?
" A. No, except the cotton wood and hackberry stub.
" 12. Before making and verifying said complaint, did defendant make
« statement of the facts of the case, as then known by him, to the count v
attorney. John G. Spivy?
A. Yes.
18. Was such statement substantially full and correct?
«t
" A. Yes.
'* 15. Did Mr. Schippel, in good faitli, go to the county attorney for the
purpose of obtaining his advice in the case, and of placing in his coutn.)!
any prosecution that might be had?
"A. Not absolutely.
1 Turner v. Phoenix Ins. Co., 65 Mich., 286; 31 N. W. Rep., 827(1884X
THE JUBY AND ITS FINDINGS. 565*
'* 17. Did the county attorney, upon being informed of the facts as then
understood by Mr. Schippel, advise Mr. Schippel that John L Norton,
Wright Norton and Alonzo Wagstaff were guilty of a criminal trespass,
and liable to such prosecution as was instituted against them?
"A. Yes.
** 20. Upon the statement of the case made by Mr. Schippel to the county
attorney, and upon the information the oounty attorney had of the facts,
did the county attorney take ccmtrol of said prosecution, as to its being
commenced, and as to the disposition that was made of it?
" A. He did, as attorney.
" 28. Was the oounty attorney's action in said proeeoation based upon a
knowledge of the facts substantially as they existed, and as known to Mr.
Schippel at the time?
"A. Yes.
'* 28. Did the county attorney dismiss the case before E. K Norton, in-
tending to immediately prefer the same in the district court?
"A. He did, as attorney.
** 29. Did the county attorney, immediately after the dismissal of said
case before Justice Norton and on the same day the case was dismissed,
file an information against John I. Norton, Wright Norton and Alonzo
Wagstaff for the same offense in the district court?
"A. Yes.
*'80. Was the case upon such information pending in the district court
when this action was commenced?
"A. Yea.
" 81. If the jury should find for the plaintiff, state separately the amounts
allowed for actual and exemplary damages, and the several items of each?
** A. One dollar exemplary damages."
Some of the findings with reference to Schippel*B good faith were ap-
parently in confiict with some of those above given. Judgment was ren-
dered upon the verdict and the finding of the jury in favor of Norton and
against Schippel for $1 and oosts of suit And to reverse this judgment,
Schippel, as plaintiff in error, took the case to the supreme court.
Valentine, J., said : " The judgment of the court below will be reversed,
and cause remanded, with the order that judgment be rendered on the
special findings of the jury in favor of the defendant below, and against
the plaintiff below.** Schippel v. Norton, 88 Kan., 667; 16 Pao. Bep., 804
(188^
-i
CHAPTER XVL
GHABOING THE JUBY.
§ 1. Preliminary discnasioii — InBtmctions and requests for hutmctioDS,
d. The instmotions should be dear, accurate and concise.
MAUaOXTB PBOBBCUnON.
8. An oral charge to the jury, in the federal courts.
<• Written instructions — Approved by the supreme court of HUnolsL
IfALXCBi
6. Malice defined.
ft. Malice may be inferred from want of probable cause.
7. Defendant's instruction — Under a general denial — Burden of proo^
8. Doing an unlawful act to obtain a lawful end.
Probable Cause.
0. The want of it must appear from the eTidenoe^
10. What is want of probable cause.
11. The burden of proof.
12. An honest belief in plaintiff's guilt
18. Prosecutor acting in good faith.
14. The true inquiry.
16. Reasonable grounds of suspicion.
16. Good character on the question of probable causa
17. Malice and want of probable cause must concur.
18. Existence of facts a question for the jury.
19. Facts constituting probable cause.
20. Facts not constituting probable cause.
21. Reasonable inquiry as to facts.
22. Allowance to be made for injury to prosecutor*
28. Possession of stolen property.
24. Accessory to arson.
20. Facts to be considerecL
Advioe or Counsel.
26. The doctrine announced by the supreme court of Iowa.
27. The doctrine laid down by Hilliard and WaiL
28. Adyice by oonnsel mistaken in the law.
FaIAE iMPBISOXOfSNTt
29. False imprisonment defined*
80. What is an arrest.
81. Duress and threats.
OHASOING THE JUBY. 667
% 82. What information the defendant mnst act upon.
88. Estoppel of plaintiff — False representations.
84. Persons assisting officers.
83. Permitting a convicted party to go at large — Arresting him af tar*
wards.
86. Void warrants in mitigation of damages.
87. Arbitrary arrests — Joint liability.
88. Duty of officers making arrests.
80. Trespassers are jointly and seyerally liaUei.
40. When not liable as joint trespassers.
41. Who are liable as joint trespassers.
42. Form of verdict when part of defendants gufl^.
48. Liability of infants — Batification.
Damages.
44. Damages.
45. Compensatory when exemplary damages are not claimed.
46. Exemplary damages defined.
47. Exemplary damages in false imprisonment.
48. The same in malicious prosecution.
40. The defendant's wealth may be considered.
56. Good faith in mitigation of damages.
§ !• Preliminary discnssion — Instrnetions and requests
for instructions. — There are few questions of law more diffi-
cult of apprehension by the average trial juror than those
which govern the trials of actions for malicious prosecutions.
This is the experience of every trial lawyer. It seems diffi-
cult for them to realize that under our law a person, in fact
innocent of the offense for which he has been prosecuted, has
no remedy against the prosecutor who has caused his arrest
and imprisonment, unless he can show affirmatively that the
prosecutor was actuated by malice and without probable cause.
All men are more or less at all times the victims of circum-
stances; and where circumstances combine in such a waj^^ as to
induce the prosecutor, acting honestly and in good faith, to
<iraw conclusions of guilt, the victim must suffer for the pub-
lic good.^ There is perhaps no branch of the law of procedure
in which the members of the bar, especially the younger mem-
bers, feel the need of assistance so much as in the preparation
of their instructions in those jurisdictions where it is the prac-
tice for the attorneys to prepare them, and the requests for
instructions where they are given orally from the bench. It
is not the design of the author to enter upon any general
S68 OIIABGING THE JURY.
treatise of this branch of the law, however. It will serve his
purpose to present some useful suggestions, and a few fonn»
as precedents, prefixed by brief statements of the facts upon
which they are based, which have been held to state the law
correctly. They may be easily modified so as to render them
applicable to other cases; always bearing in mind that an in-
struction is never proper unless it is based upon the evidence
in the particular case on trial
In many of our states the law requires the charge to the
jury or ^' the instruction," as it is called, to be in writing. In
other states the charge is given orally from the bench, bnt
in all jurisdictions, whether the charge is required to be in writ-
ing or given orally, the rule regarding requests for instructions
is the same. The request must always be in writing, and for
this purpose the precedents given in this chapter may always
be used.
lUustrationa: Here is an instruction on the question of probable cause.
'* If you believe, from the facts and circumstances as given in evidence,
that the defendant had not probable cause for the arrest and imprisonment
of the plaintifiF, then and in such case you may infer malice from such want
of probable cause.'*
If the plaintiffs attorney wishes the court to give this instruction he will
use the precedent, prefixing the request as foUows:
" The plaintiff requests the court to charge the jury as follows : ' If you
believe, from the facts and circumstances as given in evidence, that the
defendant had not probable cause for the arrest and imprisonment of the
plaintiff, then and in such case you may infer malice from such want of
probable cause.' " Boy v. Goings, 112 HI., 662.
§ 2. The instructions should be elear^ accurate and con*
cise. — Instructions should, in a clear, concise and compre-
hensive manner, inform the jury as to what material facts
must be found in order to recover, or to bar a recovery.
They should never be argumentative, equivocal or nnintelli*
gible.^
They should always be accurate statements of the law as
applicable to the facts of the case. But it was never oontem*
plated that the court should be required to give a vast number
of instructions, amounting in the aggregate to a lengthy ad-
dress; such a practice is mischievous, and ought to be dis^
iMoshier v. Kitchel, 87 HI., 10; Loeb v. Weis, 64 Ind., 285; Sackett's
Instructions (2d ed.), 15, § 6.
OHASaiNG THB JUST. 66^
oountenanoed. A few concise statements of the law appli*
cable to the facts is all that can be required, and all that caD>
serve any practicable purpose in the elucidation of the case.^'
Malicious Pboseoution.
§ 3. An oral charge to the jury in the federal courts.' —
(1) Prdimina^^y remarks — Injustice of the law — A rem^
edy: "The case, which has been tried before you with very
full detail of facts, is one of importance, not merely to the^
parties involved here, but also to the general public, and by
reason of that fact it deserves at your hands the most caref ul^
consideration. Both sides have presented the testimony fully
and fairly; and it certainly is a pleasure to try a case whei>
it is tried, as this has been, so well, and so pleasantly, by
counsel. At the very outset I want to notice and comment,
for a moment upon an obvious infirmity in our laws — at
least, so it strikes me. One of you is entirely innocent of
crime. Someone files a complaint; causes your arrest; your
are tried and acquitted. In making your defense you have^
spent time and money; possibly have been incarcerated in
jail; and yet, after your perfect vindication by a jury of your
countrymen, there is no provision for any compensation ta
you for the time and money that you have lost. Now, as I
have often had. occasion to say, I think that this is an injus-
tice; but it is an injustice that we cannot remedy — only the-
legislature can. The only remedy which a party may have, in^
a case where he has been unjustly charged with a crime, is-
when the prosecution is one vvhich comes within the legal
definition of a malicious prosecution; and then he can recover
from the prosecutor fair and reasonable damages."
(2) The jury to decide all questions of fact from the evidence
in the case: "In this case I may have occasion to comment
upon the testimony somewhat, and I may express an opinion
as to the effect of this or that portion of testimony, or as to
the proof of this or that fact. If I do so, I want to say at the*
1 Adams ▼. Smith, 68 HI., 417; 'Brewer, J.,ln Blank v. Atchi80ii».
Trish y. Newell, 63 111., 196; State v. T. &S. F. R. R. Ca» 88 Fed. Bep.».
Mix, 15 Ma, 158 ; Eraus y. Thieben, 811 (1880).
15 Ul. App., 482; Sackett*s Instruc-
tions (2d ed.), 15, § 6.
S70 OHABGING THE JUBT.
t>utset that my opinion upon a question of fact does not con*
trol. You are to decide all questions of fact And I want to
-say another thing, too, and that is, that we are to try this caae
upon the testimony that we have, and not upon that which
might have been, or that we guess might have been, offered.
If a witness known to have some connection with the circum-
stances of this case is not present, you may not guess that be
would have testified so and so if he were present. Our in-
<]uiry is limited to the testimony that we have, and we can-
not speculate upon what might have been.''
(3) The termination of the prosecution claimed to he mali-
'Cioue: I observe again that we are not here to try the que&>
iion of the guilt or innocence of this plaintiff of the train
robbery and murder at Coolidge. That is not the question
before us. If it were, I think I should have no hesitation in
raying that, conceding all that you may in reference to sus-
picions, there are no sufficient facts before you that would
justify you in saying that he was connected with that rob-
bery, I observe again that the proceedings which were in-
itiated by the complaint filed before the justice of the peace,
followed up by the requisition and information, are at an end.
That prosecution is finished.
(4) The duty of all persona to mxikefair and reasonable eff^ort
to ferret out and punish crime: Again, if not conceded, it is, I
think, a fact beyond dispute from the testimony that the
prosecution of this plaintiff, Blunk, was initiated by the de-
fendant railroad company. It caused, practically, those pro-
•ceedings to be commenced and prosecuted ; and in that respect
I may also observe that when a crime like the attempted rob-
bery of the train at Coolidge, and the murder of the engineer
and the wounding of the fireman, has been committed, then
common decency and every roan's sense of justice demands
Chat the company whose property has thus been threatened,
and whose employee has thus been killed, should make every
fair and reasonable effort to bring the criminal or criminals
to justice; and that it is not to be taken as any evidence of
^isconduct on the part of the railroad company that it has
used its employees and spent its money in an effort to ferret
out and bring to justice the criminals. Every man, for that
matter, owes a duty to society to do what he can to ferret out
CHASOINa THE JUBT. 571
and punish crime; and when the relations exist that existed
between this defendant and the man who was killed, there 1$
^ more imperative duty on it to do what it can in that direc-
tion. While that is trne, of course it is also true that in prose-
cuting its inquiries and making its efforts it is not at liberty
to act wantonly, to act with malice, to act in disregard of the
rights of others. All that it may do — and it is that which it
ought to do — is to make fair and reasonable efforts to ferret
out and prosecute the criminals.
(5) The question of reasonable and probable cause: It being
therefore not a question of whether that prosecution is ended,
nor a question whether this plaintiff was guilty of the crime
charged in that prosecution, the inquiry naturally arises, what
is this case, and what is it that you are to try { In the tech-
nical language of the law, this is a case in which the defend*
^nt is charged to have maliciously prosecuted this plaintiff —
^'maliciously prosecuted;" and the elements of the case, as
well settled, are — Firsts it must appear that there was no
probable cause existing at the time of the commencement of
the prosecution for its commencement; and, secondly y that it
was a prosecution with malice. Those are the two ingredients.
As frequently stated, there must be a want of probable cause
and there must be malice. Those are the questions you are
to try — whether in this prosecution this railroad was actuated
by malice towards this plaintiff, and acted without any prob-
able cause to believe him guilty. The question of what con-
stitutes probable cause is a question for the court to settle.
What the facts are the jury are to determine ; but what con-
stitutes probable cause is for the court to determine. It ap-
pears in this case that, without any solicitation or any sugges-
tion from the defendant, news was communicated to the
officers of the company that a convict in the Missouri peniten-
tiary knew something about the Coolidge train robbery and
was ready to confess. On the strength of that information
the ordinary officer of the defendant proceeded to the Missouri
penitentiary and interviewed that convict. From him he got
a statement in writing, written partly by the agent of the
company and partly by the convict. That statement, accord-
ing to the testimony, was a confession of his own — that is>
the convict's own — connection with the crime. More than
572 GHAUOING THB JUST.
that, it detailed the ciroumstances immediately preceding and
subsequent to the crime; named the three parties engaged in
it, and detailed some preliminary matters, then mapped out
their course of travel to Coolidge and return, giving individual
facts connected therewith. Now I say to yon, that if a repu-
table citizen — if one of you, or any man of known integrity —
makes an affidavit in which he details his own knowled^re of
a crime, and a person acts upon that affidavit, he acts with
probable cause in instituting a prosecution for the offense*
But where a person like this convict, of confessed criminal-
ity— confessed both by the adjudication against him and by
his own confession in this statement — makes a statement in
respect to crime, not merely in reference to himself but impli-
cating others, then common prudence requires that the truth
of that statement should be investigated before the persons
named in it are charged with crime. If, however, in a con-
fession from a man himself a convict — from a man confessing
his own criminality and charging others with participation —
the confessor makes a detailed statement of facts preceding,
attending and following the crime, and the party to whom
that confession is made investigates those particular state-
ments, and finds that they are substantially accurate, and
acts upon that information thus verified by personal investi-
gation and information, he is acting upon probable cause.
Take the case before us. If Mr. Higgins — after receiving
this statement, which has been read to you, detailing the place
from which they started, the prior relationships between the
convict, Mr. Blunk and Mr. Waller, the places they visited on
their way to Coolidge, what took place at Coolidge, the places
they visited in the vicinity of Coolidge and on the return —
if Mr. Higgins, taking that statement as presented to him, im-
plicating the convict himself, and Mr. Blunk and Waller, went
over and verified so far as was possible the details of the in-
formation thus conveyed and found that the details were cor-
rect— details which could not have been known except by a
party who was cognizant of the offense and participated in
the crime — then he is justified in acting upon that confession
as a true statement, or at least as probable cause for further
prosecution. In this respect I quote the language of a case
cited by the counsel for plaintiff^from Cole v. Gurtisj 16 Minn*^
OHABGINO THE JUST. 57S
182 (Gil., 161), itself a quotation from Hil, Torts: "Probable
cause for instituting a prosecution is held to be such a state of
facts known to and influencing the prosecutor as would lead a
man of ordinary caution and prudence, acting conscientiously,
impartially, reasonably and without prejudice, upon the facts
within the party's knowledge, to believe or entertain an hon-
est and strong suspicion that the person accused is guilty."
Now if the defendant, through its agent, after this investiga-
tion, with this sworn statement of the convict, found that the
details of the facts therein stated were substantially true, and
from the possession of that knowledge — that is, from the pos-
session of the confession and the verification of the details bv
personal examination — entertained an honest and strong sus-
picion that the convict and the persons named as assistants
with him were the three guilty persons, then the action was
with probable cause and the plaintiff has failed to make out
his case.
(6) Not necessary that the accused should have notice of the
investigation: It is not necessary, where an investigation of
this kind is started, that the persons suspected or accused
should, before the prosecution is instituted, be notified of the
accusation. It is not even necessary that the persons investi-
gating the matter should so far continue their investigations
as to put the accused upon notice of an investigation or lead
him to believe that an investigation is being had, because, for
the obvious reason that, if he be guilty, the moment he knows
or suspects that an investigation is being had, he disappears.
Those investigations are fairly and reasonably conducted if
they are conducted up to the point where the possibility of
notice to the accused may arise.
(7) The question of malice: It is also necessar}^ in a case of
this kind, that the defendant in the civil action — one pend-
ing like this — shall have acted maliciously. A satisfactory
definition of that term may not be easy. Of course, it covers
a case where a prosecutor has an ill-will against the accused,
as if, for instance, I had a personal grudge against one of you,
and should, by reason of that personal grudge, file a complaint
against you. There you can see that I have malice, I have
i!l-will — a grudge. But the law goes a little further than
that. It is not al'Xays necessary to prove such personal, actual
574 CHASQIHG THE JUBT.
ill-will and grudge by reason of past trouble. A jnry may
sometimes infer from the aBsence of any probable cause that
there was malice even where the testimony fails to show any
prior trouble, diflSculty, ill- will or grudge. Wherever there is
a wanton, a gross, reckless disregard of the rights of another,
as where confessedly there is no excuse for it — no reasonable
ground — and a complaint is filed, then, although there may
be no direct testimony as to any prior trouble, ill-will or
grudge, the jury may be justified in finding that the action
was malicious. Bat, while that is true, yet the jury must be
satisfied from the testimony that the thing was maliciously
done. In this case the question for you to consider in this
respect is whether this railroad company or any of its officials
had any feeling, any malice, any desire to prosecute or punish
this plaintiff. Was it to wrong or injure him in any way that
this prosecution was instituted? Or was it simply from the
belief — a belief, mistaken though it may be — that he was
the guilty man? If they acted from probable cause, and
without any personal feeling towards him, without any desire
to wrong him, then there is no malice shown as against the
company defendant.
(8) Advice of counsel: It is further insisted by the defend-
ant that whatever information they had they presented to
counsel, — their own counsel, the attorney-general of the state
of Kansas, and the county attorney of Finney county, — and
that all of them agreed that the facts within their knowledge
pointed to and justified the prosecution of this plaintiff. /Now,
if a party in a case like this discloses all the facts that he
knows, or that by the exercise of reasonable care be can ob>
tain, honestly, fully and fairly, to counsel, and that counsel
advise him that the facts thus stated make out a case, then he
is justified in acting upon that' advice. Thus, for instance, one
of you may suspect that A. has committed a crime. You
make inquiries, — all that come within your power reasonably
to make, — and you find this fact, and that, and another, and
you go to the prosecuting attorney, and tell him these facts,
and he says they indicate that the person is guilty of crime,
and on the strength of that you file a complaint. The matter
is investigated, the case is tried, and it turns out that you
were mistaken, and that the defendant is innocent. No cause
OHABOIKG THE JUBT* 575;
of aotion arises against you. Yoq have gone to the proper
party; yon have told him all that you know, and all that by
the exercise of reasonable care and diligence you could ascer-;
tain ; and, having made that disclosure, although you werer
mistaken, although perhaps his advice was incorrect, yet you
are shielded from liability. Now, this defendant says that all
it knew, all the facts within its knowledge, and all that it
could with reasonable care ascertain, were communicated to»
its own counsel, to the attorney-general, and to the count}' at-
torney of Finney county. Not merely that; it says that the
attorney-general, on his own motion, went and investigated,,
so far as he could, by conversation with the confessor and
convict, the accusation; and that they all advised that there
was enough to justify the commencement of the i3rosecution.
If that be true, if nothing was withheld, if full disclosure was^
made, if all was done honestly, conscientiously and fairly,
and all the facts that the company did have within its knowU
edge, or could by the exercise of reasonable care ascertain,,
were disclosed to these counsel, and they advised the prosecu-
tion, that is a perfect answer to this suit. -^
(9) Continuation of the prosecution after knowledge of th&
innocence of tJie accused: On the other hand, it is insisted by
the counsel for the plaintiff that, whatever may have trans*
pired before the original filing of the complaint at Garden
City by Mr. Black, after that was filed months elapsed before-
the information was filed upon which the plaintiff was finally
to be tried, and that the defendant company in the interim^
between the original commencement and the filing of the in-
formation, if it did not have before, had full and satisfactory
information of the innocence of this plaintiff, and that, not-
withstanding that information, it insisted upon the continu-
ance of the prosecution, and caused the information to be
filed. The law in that respect is this: By the statutes of
Kansas, whenever a criminal complaint is filed, the county
attorney takes charge of the prosecution. From that time-
until its termination in the trial court it is wholly within hi»
control. It does not lie in the mouth of the person who-
makes the complaint to say what shall be done, or when it
shall be done, thereafter* The law provides that after the .
filing the complaint before the justice of the peace, the pre^
•$76 OHABOING THE JUBT.
liminary examination and binding over for trial in the dis-
trict court, at or before the commencement of the next term
•of the district court, the county attorney shall investigate the
matter* If he finds satisfactory reasons for discontinuing it,
he shall file a statement of those reasons with the judge of
the district court, who determines the propriety of continuing
the prosecution. If he finds no such satisfactory reasons for
its discontinuance, then it is his duty to file the information;
and the moment the criminal proceeding is initiated by the
Uling of the complaint, the matter from that time remains ab-
solutely in the control of the county attorney, except as he
may be directed by the district court. So that the mere fact
-that after the prosecution was initiated the railroad company
was advised of matters which showed the innocence of the
.plaintiff — that itself would not justify you in holding the
railroad company responsible in this case; that is, provided it
was not responsible for the original filing of the complaint.
It is true, however, that while the absolute control of the case
Temains with the county attorney, if, after the filing of the
original complaint, the original prosecutor — in this case the
railroad company — becomes advised of facts which clearly
show the innocence of the accused, and, notwithstanding the
possession of the knowledge of those facts, it insists, and urges,
^nd presses the prosecution of the case further, it may be held
liable. Its silence, its mere withholding the information, its
mere waiting and letting the case take its course, give no
<cause of action against it; but if it insisted upon, and urged
and demanded a continuance of the prosecution when it knew
that the party was innocent, then it may still be liable for an
action of malicious prosecution. But in order to prove that
it must be shown that it was fully advised of the innocence
of the accused, and that, notwithstanding its full possession
of information in that respect, it insisted upon, urged and de*
manded the prosecution of the accused. Now, in this case
the question is whether there was any such information com-
municated to the railroad company; whether there was any-
thing more than a doubt thrown upon what information had
been received before; and whether, in the possession of such
information as it had, the continuance of the prosecution was
At its urgency and insistence.
OHABGING THB JUBT. 577
(10) Elements of damages: If you find for the plaintiff, the
question of course arises, what is his measure of damages? and
in respect to that the law is this : Whatever he may have paid
out for counsel fees, for expenses in defending himself against
the suit that was wrongfully brought against him, and whatever
may be the value of the time that was consumed in that de-
fense; and, beyond that, whatever damage may have been
done to his reputation by the initiation and prosecution of this
unjust charge, — are to be considered in determining the
amount of his damages. Of course, so far as the amount of
money he may have paid out for expenses and counsel fees is
concerned, that is a matter easy of calculation, as is also the
value of his time. Those are matters of mathematical calcu-
lation. So far as the question of injury to his reputation —
damages to his reputation — is concerned, there is no mathe-
matical rule by which that can be determined. It is submit-
ted to the good sense and fair judgment of the jury, — consid-
ering all the circumstances of the case, the man he is, his past
life, his own character, — to determine as to how much he has
been damaged by this unjust accusation.^
§ 4. Written Instructions in a suit for malicious prose-
i*ntion approved by the supreme eonrt of Illinois.' —
Statement of Facts.
William M. Boss & Co., a mercantile firm in Chicago, had had In their
•employ from four to six years a young man, Adam G. Innis, as cashier ;
all this time his conduct had been upright and everything had been satis-
factory. On the 12th day of December, 1869, when a misunderstanding
took place between Innis and John H. Ross, a member of the firm, in re-
lation to the payment of an account owing to the firm by a brother of
Innis, it was sought to charge the debt due from the brother to the salary
•of Innis. Innis claimed that it was to come out of some insurance money.
Owing to this misunderstanding Innis was discharged. At the time there
was due him the sum of $166; this amount he took from the firm moneys
in his possession, as cashier, and charging the amount to himself in the
firm's books, calling the attention of some of the firm to the fact, and
claiming the right to do as he had done, and that he had been in the
habit of doing the same thing before he left the store. One member of
the firm now consulted an attorney, and upon stating the facts, was ad-
Tised to have Innis arrested on a charge of embezzlement. A complaint
was drawn up by the attorney and sworn to by the member of the firm»
1 Blnnk ▼. Atchison, T. & S. F. R 'Roes v. Innis, 26 HI., 269 (1861).
Co., 88 Fed. Rep., 811 (1889).
87
678 OHABGINa THB JUBT.
a warrant issued, and Innis was arrested. Upon the examination before
the magistrate he was discharged. He then brought an action against the
members of the mercantile firm for malicious prosecution. On the trial it
appeared that the firm had a rule that all sums to be paid over f5 must
be paid on the check of the firm.
iMSTUUCnOKS FOB THE PLAINTIFF.
(1) Adviee of eounsd: " If the jury are satisfied by the evidence that the
defendants knew at tbe time they advised with their attorney, that the
plaintiff in good faith claimed and had aprimafaeie right to pay himself
the money on his salary, that he had often done so before, and did not state
that fact to their attorney, then the attorney's advice is no protection to
them, nor was there probable cause for causing the plaintiff's arrest and
trial on the alleged charge of stealing the money, if such claim was made
honestly and in good faith." i
(2) Material facts to be communicated to counsel: "The jury are farther
instructed as matter of law that if they find from the evidence that the
fact that the plaintiff in this case disputed the right of the defendants to
charge him with his brother's account, and that the defendants knew that
fact, and that if they also find that the plaintiff claimed the right to pay
himself the |166 for his salary, and that that fact was known to tbe defend*
ants at the time they consulted their attorney, then the jury are instructed
that those were material facts to be communicated to counsel." ^
(3) Violation of rules renders them inoperative: "The jury are further
instructed that if they find from the evidence that one of the business
rules of the defendant's firm was that all sums over $5 paid out by tbe firm
should be paid on the check of the firm, but that said rule was frequently
violated* then the fact that the rule was frequently violated was a material
fact to be communicated to counsel when legal advice was sought. And
if the defendants knew or remembered the fact, if fact it was, at the time
of taking such advice, they should have communicated it to the at-
torney."*
(4) What facts must he laid before counsel: " The jury are further in-
structed, as matter of law, that to entitle the defense of advice of counsel
to avail tbe defendants, all the facts and circumstances known to the party-
seeking the advice, or which he ought to have ascertained by careful and
diligent inquiry, must be fairly and in good faith laid before the counsel
for his opinion; and if the jury shall believe from the evidence that any
material and important fact known to the defendant, or which he could
have ascertained by careful inquiry, was kept back from the counsel, then
tluit the advice given on such a partial statement is not a protection." '
1 Ross V. Innis, 26 III, 271 (1861). Innis, 26 111., 259; Sackett's Revised
2 Josselyn v. McAllister, 22 Mich., Instructions, 302; Calef v. Thomas,
800 : Anderson v. Friend, 71 III., 476 ; 81 111., 478 ; McCarthy v. Kitchen, 59
Ash V. Marlow, 20 Ohio, 119; Walter Ind., 500; Johnson v. MUler, 29 N.
V. Sample, 25 Pa. St., 275; Sharpe v. W. Rep., 743; Smith y. Austin, 49
Johnson, 59 Mo., 557; Acton v. Ck>ff- Mich., 286.
man, 86 N. W. Rep., 775; Ross v.
OHABGING THE JUBT. 579
(5) Character as evidence on the quefttion of probable catiae: "If the
jury find, from the evidence, that the plaintiff, Adam G. Innis, up to the
time of his arrest for embezzlement, bore uniformly a good reputation for
honesty, for integrity ; and the defendants acknowledged that the plaintiff
bore such character, in their estimation, up to the time of his arrest for
embezzlement, then that is strong evidence that the defendants had no
probable cause for causing the arrest of the plaintiff for embezzlement,
unless very strong circumstances of guilt existed to base a criminal charge
upon as against plaintiff Innis."
(6) WTiat acts do not constitute probable cause: ** If the jury believe,
from the evidence, that the plaintiff was charged, arrested and treated as
stated in his declaration, and that the defendants knew, at the time of
making the charge, that the plaintiff, as their cashier, paid himself the
money in question for his services, earned to that date, crediting them and
charging himself with the same on the books in the usual way, claiming it
as his right to do so, then in such case these acts do not constitute probable
cause for making said charge and arrest." ^
(7) Facts showing no probable cause: "If the jury believe, from the
evidence, that the plaintiff was then and there, and had been several
years, cashier for defendants, when he paid himself the money for his
services rendered them, and that he had often done so before, with their
knowledge and assent, he crediting them and charging himself for the
same on their books, kept for the purpose, and when told by one of them
he must return the money, or they would have him arrested for stealing
it, he claimed his right to pay it to himself ; all of which, if the jury find,
from the evidence, the defendants knew, when they caused his arrest, then,
. in such case, there was no probable cause for the arrest.'* ^
(8) A charge made maliciously — Exemplary damages: **If the jury be-
lieve from the evidence that the defendants made the charge of embezzle*
ment falsely, maliciously and without probable cause, to destroy the
plaintiff's reputation for honesty, in Chicago, and to prevent his getting
employment in Chicago, and that they obtained the opinion of counsel
upon a false or partial statement of facts, as they understood them, then
such opinion, if so obtained, would offer no protection to them, and the
plaintiff, in such case, ought to recover, and the jury, in such case, may give
exemplary damages." '
(9) Advice of counsel must be sought in good faith: *' In order to render
the advice of counsel any protection to the defendants in this action the
jury must be satisfied, from the evidence, that such advice was sought in
good faith, and that a fair, full and true statement of all the facts were
then submitted to the counsel, and that they, in instituting the prosecu-
tion, were induced to act, and acted on such advice, without a previous
determination to prosecute the plaintiff, whether so advised or not." *
(10) Instituting prosecution from a fixed determination rather than
upon advice of counsel: '*If the jury believe, from the evidence, that the
iRoss V. Innis, 26 Dl., 273 (1861). y. Gtoings, 112 lU., 668; Logan y.
«Ross V. Innis, 26 111., 278 (1861). Way tog, 67 Iowa, 107; Porter y.
<Ro68 V. Innis, 26 Ul., 278; Sack- Knight, 19 N. W. Rep., 282.
ett's Instructions (2d ed.X 808 ; Boy
680 OHAROINQ TQE JUBT.
defendaDta institnted the criminal prosecution from a fixed detemiiiiation
of their own rather than from the opinion of legal counsel, or that a full,
fair and true statement of all the facts was not submitted to the counsel,
then, in either case, the opinion given by the counsel is no defense to this
action, if the charge was false and made without probable cause. ''^
(11) Jury not confined to actual damages: "If the jury, from the evi-
dence, find the defendants, or either of tl^em, guilty, as charged in the
declaration, they will assess the plaintifiTs damages, and they are not con-
fined to the actual damages proved, but may give reasonable exemplary
damages.*' ^
Instructions for the Defendant.
(1) Probable cause: *' If the defendants had any probable cause to insti-
tute the criminal proceedings, then the plaintiff cannot recover; probable
cause is defined to be a reasonable ground of suspicion, supported by cir^
cumstances sufficiently strong in themselves to warrant a cautious man in
the belief that the person accused is guilty of the offense with which he is
charged." •
(2) Advice of counsel: " If the jury believe, from the evidence in this
case, that the defendants fully and fairly stated all the facts and circum-
stances in relation to the criminal prosecution to respectable counsel, and
that such counsel advised them to institute the criminal proceedings, and
the defendants in good faith acted upon such advice, then the plaintiff can-
not maintain his action, whether such advice was correct or not, and
whether the defendant in the criminal prosecution was gnilty or not." <
(8) Testimony before magistrate on the question of probable cause: " If the
jury believe, from the evidence, that the defendants, or either of them, testi-
fied before a magistrate to facts particularly within their knowledge, in
the communication of the charge made by them against the plaintiff, that
plaintiff had agreed to assume and pay the debt of Alexander Innis, and if
they further believe that said defendants, in good faith, believed that the
plaintiff had so agreed to pay and assume the same, then the testimony so
given by said defendants, or either of them, is evidence in this case as to
the existence of probable cause for making the criminal charge complained
of by the plaintiff." »
(4) What the plaintiff must show: This is an action for malicious prose-
cution, and to entitle the plaintiff to recover he ought to show —
First — " That the prosecution was ended ; that the proceeding was ma-
licious ; that it was without probable cause. There seems to be no oontra-
^Rossv. Innis, 26111,278(1861). v. Zent, 58 Ind., 869; Coo\ej on
2R0SSV. Innis, 26 111., 273 (1861): Torts, 181; Farnam v. Feeley, 56
8ackett*s Revised Instructions, 299; N. Y., 451; Winebiddle v, Porter-
Bates v. Davis, 76 111., 222; Stewart field, 9 Penn. St., 187; Ck>llin8 v.
T. Maddox, 68 Ind., 52; Scripps v. Hayte, 50 III, 853; Fagnan ▼. Knoz^
Eiley , 38 Mich., 10 ; Fenelon v. Butts, 66 N. Y., 525.
53 Wis., 844. «Ross v. Innis, 26 IlL, 278; SOier-
SRoss V. Innis, 26 HI., 273 (1861); burne v. Rodman, 51 Wis., 474.
Galloway ▼. Burr, 82 Mich., 832; ^Roes v. Innis, 26 IlL, 274 (18eiX
Ames V. Snider, 69 111., 876; Smith
0HAB6ING THE JUBT. 581
dictory evidence in regard to the termination of the criminal proceedinge
against the plaintiff, and the jury will need no paiticular instructions on
this point beyond this — that a discharge by the justice of the party ar-
rested would be a sufficient termination of the proceedings, under a war-
rant issued by such justice. '* ^
(5) TJie same continued: ** The second proposition necessary to be estab-
lished by the plaintiff is, that the proceedings were maliciously instituted
or set on foot by the defendant. The term malice in this form of action is
not to be considered in the sense of spite or hatred against an individual,
but of an evilly disposed mind, and as denoting that the party was actuated
by improper and sinister motives. The jury will determine, from all the
facts and circumstances proven in this case, whether the defendants were
actuated by malice in their procuring the arrest of the plaintiff or not." ^
(6) Tlie same continued: *' The third point necessary for the plaintiff to
establish, in order to entitle him to recover, is, that the criminal proceed-
ings instituted against him by the defendants were without any probable
cause. Proof of express malice without sliowing also the want of probable
cause is not sufficient.'* ^
(7) The burden of proof: '* The burden of proof in this case is upon the
plaintiff, and the jury ought to presume that the defendants believed in
the truth of the information and evidence given by them, and of the state-
ments contained in the affidavit for arrest, unless it clearly appears from
the evidence that the evidence of defendants was false, and that the de-
fendants knew it to be so, or by reasonable diligence could have ascertained
that it was false." ^
(8) Proibable cause when the facts are disputed : *' What is probable cause
when the facts are not disputed is a question of law, but in this case the
facts are disputed, and it is proper for the court to instruct you as to the
law concerning probable cause, and the jury should find whether the nec-
essary facts have been proved, on the part of the plaintiff, to make out a
want of probable cause. If the plaintiff was cashier of the defendants,
and as such cashier received money belonging to the defendants, and with-
out the knowledge or consent of the defendants, or either of them, and
against their will and consent, the said plaintiff did feloniously convert
and appropriate to his own use and embezzle from the said William
M. Roes & Co., the defendants, with an intent then and there to steal the
same, the said sum of $166, as stated in the affidavit of said William M.
Boss, and that the said money then and there was the property of the said
defendants, at the time of said conversion, this would be sufficient proba-
ble cause to justify the defendants in causing the arrest of the plaintiff ;
but if the jury believe, from the testimony, that the plaintiff honestly be-
lieved that he had a right to take the money and charge it to himself, and
he did so take such money and charge himself with the amount on the
books of the defendants, then even if he had guarantied the debt of Alex-
ander Innis, he would not be guilty of embezzlement, and such taking of
the money under such circumstances would not constitute a probable cause
for the prosecution of the plaintiff criminally, for such taking of the money
of the plaintiff from the defendants, even if the plaintiff had verballj
1 Boss V. Innis, 26 III., 275(1861).
582 OHABGma the jubt.
agreed to pay the debt of his brother, Alexander Innis, and took the moiiej
belonging to Ross A Ck>., in his possession, believing that he had a good
right to do so, and made the proper entries on the book of Boas & Ca,
charging himself with the money so taken by plaintiff, he would not be
criminally liable, and such conduct would not constitute probable cause
for criminal prosecution for embezzlement, unless it appears from the evi*
dence that at the time the defendants commenced the criminal proaecutioQ
complained of they honestly and in good faith believed the plaintiff was
guilty of embezzlement, as the law does not necessarily require that a
crime should have been committed before probable cause can exist." ^
(9) Probable cause d^ned: ** Probable cause is justly defined to be a sus-
picion or belief, founded upon circumstances sufiSciently strong to warrant
a reasonable man in the belief that the charge is true. A belief that is
groundless, or which could not have been formed without the grossest
ignorance or negligence, would not constitute probable cause within the
meaning of the law. The jury ought to apply to all the evidence in the
case the test — the rule of law given to them by the court. Ask yourselves
conscientiously, are the facts and circumstances that yon have found to
exist so strong in themselves as to warrant an impartial and ingenuous
and reasonable man of common capacity, ^ith the caution usually exer-
cised by such a man in the defendants' situation, but under the influence
of any improper motive, to believe the plaintiff guilty of the crime charged
against him? If they are sufficient to warrant that belief in such a mind,
that conclusion, when deliberately arrived at by you, will entitle the de-
fendants to a verdict of not guilty ; if you find otherwise, then you will
find whether defendants are guilty ; and, if guilty, then you will assess the
damages for the plain tiff •** ^
(10) Advice of counsel: "The defendants claim protection in this case
by reason of having been advised to prosecute the plaintiff by counsel
The true rule in this matter seems to be this: That the defendants may
give in evidence to show probable cause, and to negative malice, that they
proceeded in the case in good faith upon the advice of counsel learned in
the law, given upon a full representation of the facts. It must appear, to
make this a good defense, that defendants communicated to said counsel
all the facts bearing upon the guilt or innocence of the accused, which they
knew, or by reasonable diligence could have ascertained, and that they in
good faith acted under such advice. If the jury are satisfied from the evi-
dence that the defendants acted in good faith on the evidence given, and
did only follow such advice so given, then they are not liable to an action
for malicious prosecution.** '
(11) Form of verdict: *' If the jury find for the defendants, the form of
their verdict may be as follows :
** We, the jury, find the defendants not guilty.**
Malice.
§ 6. Malice defined. — The court instrucCs the jury for the
plaintiff that the term malice as used in this trial signifies
iRoss ▼. Innis, 26 Dl., 276(1801). 3 Hoes ▼. Innis, 26 IlL, 277 (1861),
OHASGINO THS JUBT* 583
the intentional doing of a wrongful act without just cause
or excuse. There are two kinds of malice: malice in fact
or express malice, and malice in law or implied malice. Mal-
ice in fact, as its name implies, arises from personal spite, and
evinces an evil intention to commit a wrongful act. But mal-
ice in law has a somewhat broader meaning. It is not con-
fined to personal spite against individuals, but consists in a
conscious violation of the law to the prejudice of another.*
§ 6. Malice may be Inferred from want of probable eaase.
The court instructs the jury that if they believe, from the
facts and circumstances proved on this trial, that the defend-
ant had not probable cause for prosecuting the plaintiff, and
that he did prosecute him, as charged in the complaint, then
the jury may infer malice from such want of probable cause.'
§ 7. Defendant's instruction under the general denial —
Burden of proof — Malice. —
First The general issue being pleaded in an action of ma-
licious prosecution, the burden of proving these five faots is
upon the plaintiff, viz. : (1) The fact of the prosecution; (2) that
the defendants were the prosecutors or instigators of it;
(3) that the prosecution terminated in favor of the plaintiff;
(4) that the charge was made without reasonable or probable
cause ; (6) that the defendants in making it were actuated by
malice.
Second. To maintain an action for malicious prosecution the
plaintiff must show, by a preponderance of evidence, malice
and want of probable cause. Therefore, if the jury find from
the testimony that the plaintiff has failed to prove, by a pre-
ponderance of evidence, that the defendants maliciously and
without probable cause commenced said alleged criminal
prosecutions against him, you will find for the defendants.
Third. Although the plaintiff may show the want of prob-
able cause by the preponderance of evidence, yet it is not suf-
ficient to support a recovery unless malice may be shown, or
may be inferred also, so that the plaintiff must prove that the
iWUllsv. Mnier,29Fed.Rep.,288; Livermore, 6 Clarke (Iowa), 377;
Ferguson v. Earl, etc., 9 CI. & F., Krug v. Ward, 77 111., 608; HoUi-
921. day v. Sterling, 63 Mo., 821; Edge-
* Cooley on Torts, 185 ; Ewing v. worth v. Carson, 43 Mich., 241 ;
Sanford, 1» Ala., 605; Harkrader v. Wertheira v. Altechuler, 12 N. W,
Moore, 44 CaL, 144; Pankett v. Rep., 107.
6S4 OHABGING THE JURY.
defendants were actuated by a malicious desire to injure him.
Therefore, if the jury find from the testimony that the plaint-
iff has failed to show, by a preponderance of evidence, that
the defendants commenced the alleged criminal prosecution
against him with a malicious intent to injure him, you will
find for the defendants; but proof^of the institution of a crim-
inal prosecution without probable cause may bo sufficient
proof from which malice may be inferred.*
§ 8. Doing a wrongfal act to obtain a lawful end — Ig-
norance of the law excuses no one — Malice. —
statement: An action was brought by John Wills against Noyes and
others for maliciously attaching and detaining on a writ of replevin ths
schooner CaroUne. The defendants claimed to own but one-half of the ves-
sel. Wills was the owner of the other half and was in possession.
Inatrtiction: ** The plaintiffs in this action of re} levin, claiminR to own
only one-half of the vessel, could not maintain replevin. Yet, that if, act-
ing as rational men, they believed they could maintain that action for the
recovery of any real or supposed interest, it would be a justification in the
present suit; but if their purpose was to obtain an illegal object in an ille-
gal manner, it would not amount to a justification ; that the legal pre-
sumption that every one knows the law applied to the present case, and that
the plaintiffs in replevin must be presumed to have known that that action
would not lie, unless they could show to the contrary. That might be done
by proving that they were advised by counsel that replevin was the proper
remedy; that it was incumbent on the plaintiff, not only to show that the
action of replevin was commenced without probable cause, but that it was
malicious ; that legal malice might differ from malice in the common ac-
ceptation of the terra : that to do a wrongful act, knowing it to be such,
constituted legal malice; and that the plaintiffs, on replevin, ooald not
justify a wrong or unlawful act, knowing it to be such, upon the ground
that they did it to obtain a lawful end." '
iCasebeerv. Rice, 18Neb.,208; 24 v. Whitney, 77 DL. 82; )Iowry v.
N. W. Rep., 698 (1885). As we un- Whipple, 8 R. L, 360; Straus v.
derstand the law applicable to the Young, 86 Md., 246. And it may be
question of malice, these instruc- found by the jury from the same
tions, when applied to the testimony facts which show a want of probable
before the jury, contain a fair state- cause. Harkrader v. Moore, 44 Cal,
ment of it, and in substance give all 144; Oliver v. Pate, 48 Ind., 182;
the essential ingredients. But it is Ammerman v. Crosby, 26 Ind.,
not necessary in such cases that ex- 451. And if the prosecution was
press malice be shown. Malice in a wholly without cause, no further
prosecution may be inferred from evidence of malice is necessary,
a clear want of probable caubc. Hoi- Hayes v. Hay man. 20 La. Ann., 386;
liday v. Sterling, 62 Mo.. 321 ; Newell Holbum v. Neal, 4 Dana, 120.
V. Downs, 8 Blackf., 523; Callahan * Wilis v. Noyes et al., 29 Mass.^
V. Caffarata, 39 Mo., 136; Harpham 824 (1832).
OHABQIKa THB JUBT. 585
Beasokablb OB Pbobablb Cause.
§ 9. The want of it must appear from the eyidence. —
Althoucjh the jury may believe, from the evidence, that the
criminal prosecution complained of was made by the defend-
ant through malice, still the jury must not infer want of prob-
able cause from such malice. Want of probable cause must
be made to appear from the evidence, or else the jury must
find for the defendant, no matter how malicious the jury may
find the defendant's motives to have been in instituting the
criminal prosecution.^
§ 1 0. >Vhat is want of probable canse. — If the jury believe,
from the evidence, that the defendant instituted a criminal
proceeding against the plaintiff, as charged in the complaint,
and if they further find, from the evidence, that there were
no circumstances connected with the transaction out of which
the prosecution grew, and that no information regarding it
came to the knowledge of defendant, which would warrant a
reasonable and prudent man in believing that the plaintiff waa
guilty of the charge made against him, then there was no
probable cause for the prosecution.^
§ 1 1. The burden of proof. — The want of probable cause,
though negative in its character, must be shown by the plaint-
iff by affirmative evidence, and the jury have no right to infer
it from any degree of malice which may be proved.'
§ 12. An honest belief in plaintiiTs guilt.— If the jury be-
lieve, from the evidence, that the defendant, when he insti-
tuted the prosecution complained of, honestly believed the
plaintiff was guilty of the offense charged, and that defend-
ant's belief was founded on a knowledge of circumstances
tending to show such guilt, and sufficient to induce, in the
mind of an ordinarily reasonable and cautious man, the belief
in such guilt, then such belief on the part of the defendant
negatives the idea of the want of probable cause.*
§ 18. Prosecutor acting in good faith.— To warrant a ver-
dict for the plaintiff in an action for malicious prosecution,
iSackett*8 iDStructions (2d.ed.), 588; Lavender v. Hodgins, 38 Ark.,
800. 768; Smith v. Zent, 59 Ind., 882;
'McWniiams t. Hoben, 42 Md., Evens ▼. Thompson, 12 Heisk., 534.
58; Harpham ▼. Whitney, 77 III.. 32. * Hirsch v. Feeney, 88 IlL, 548;
'Brown v. Smith, 83 Hi., 291; Brennan v. Tracy, 2 Mo. App.» 540.
Cottreli V. Richmond, 5 Mo. App.,
586 CHABOINa THE JTJBT.
there must be malice on the part of the prosecutor, and a want
of probable cause for believing that the accused is guilty of
the offense charged. If the prosecutor acts in good faith, on
evidence, whether true or false, which is sufiBcient to create,
in the mind of a reasonably cautious man, a belief of the guilt
of the accused, he is protected and justified in commencing
the prosecution.^
§ 14* The true inquiry. — Upon the question, whether the
defendant had probable cause for commencing, etc., the jury
are instructed that the true inquiry for them to answer is not
what were the actual facts as to the guilt or innocence of the
plaintiff, but what did the defendant have reason to believe,
and what did he believe, in reference thereto, at the time he
made the complaint.'
§ 15. Reasonable groands of suspicion. — If the jury be-
lieve, from the evidence, that the defendant had probable
cause to believe that the plaintiff was guilty of the offense
charged against him, then it is not material whether the de-
fendant was actuated by proper or improper motives in insti-
tuting the criminal proceedings against the plaintiff. To
authorize a recovery in this class of cases it must not only ap-
pear that the defendant was actuated by malice, but the jury
must further believe, from the testimony, that the defendant
had no probable cause, or no reasonable ground, to believe that
the plaintiff was guilty of the offense charged against him.'
§ 16. Good character on the question of probable cause.
If the jury believe, from the evidence, that the plaintiff, up to
the time of his arrest, uniformly bore a good reputation for
honesty and integrity, and that defendant knew his reputa-
tion to be such up to the time of his arrest, then that fact is a
proper one to be considered by the jury, in connection with
all the other evidence in the case, in determining whether or
not defendant had probable cause to believe, and did believe,
ih good faith, that the plaintiff was guilty of the crime charged
against him.^
1 Sackett's Bevised InstnictionSy Flickinger y. Wagner, 46 Md., 680;
299. Josselyn ▼. McAHiater, 22 Mich.,
> Galloway ▼. Burr et al, 82 Mich. , 800 ; Carey v. Sheets, 67 Ind., 375.
S32. * Wood worth ▼. Mills. 61 Wis. , 44 ;
SAmes v. Snider, 69 lU., 876; Sackett's Instructions (2d ed.), 804.
OHAROINQ THE JURY. 687
§ 17. Malice and want of probable cause mnst concnr. —
The coart instracts the jary that, in order to sustain the ac-
tion for malicious prosecution, it must be proved, by a pre-
ponderance of the evidence, that the prosecution complained
of was made with malice, and also without probable cause;
and if both these requisites are not so proved, the jury should
find for the defendant.^
§ 18* Existence of facts a question for the jury — Prob-
able cause. —
statement: C. brought suit against E. for prosecuting him maliciously
on two unfounded charges: one for breaking down E.'b shade trees, April
18, 1879, and the other for disturbing a religious meeting on the same day.
On the trial the plaintiff, as a witness on his own behalf, gave evidence
tending to prove that he was twenty -one years of age and upwards; that
one J. T. was fifteen years old ; that together they went from their homes
in Corunna to Chesaning, April 12, 1879, stopping there over night; that
on the next day, which was Sunday, they left Chesaning about 9 o'clock
in the morning to go about ten miles northwest, their road passing by a
school-house, where a Methodist quarterly meeting was carried on by the
presiding elder and three preachers.
Plaintiff, by himself and persons at the meeting, gave evidence tending to
prove that plaintiff and T. made no noise or disturbance at or in passing the
school-house, and that the religious performance thereat was not disturbed
by any noise whatever from without. Plaintiff also gave evidence tending
to prove that in passing defendant's house T. stepped to the outside of the
road and broke down two small shade trees, the plaintiff then being ten
or twelve feet beyond, walking in the road ; that he looked around as T.
was breaking the trees and remonstrated with him, telling T. to come
along and mind his business: that the next day he and T. were arrested
near St Charles by Officer Thayer, defendant being with him ; that Thayer
refused to tell what it was for ; that the officer and defendant then took
plaintiff to defendant's house and there locked htm up in a room all night.
Plaintiff further gave evidence tending to prove that while so confined
in defendant's house, Thayer advised them to settle with defendant, who
wanted $25, and they gave him their watches in pledge for the sum the
next morning, and were released by the officer, by defendant's order, with-
out Ifewg taken before the justice who issued the warrant, which the offi«
oex left with the defendant, they being there told by the defendant that
he wanted that sum to settle for the shade trees and a buggy spring broken
in going to arrest them : that C. demanded his watch, and that defendant
then told plaintiff that he knew T. broke the trees, and that plaintiff had
done nothing for which he could be arrested, but that he had been in bad
company.
iCooley on Torts, 184; Casperson v. Blair, 62 N. Y., 19; Skidmore T«
▼. Sproule, 39 Mo., 89; Center v. Bricker, 77 HI., 164.
Spring, 2 Clarke (Iowa), 898; Heyne
688 OHARGINa THE JURY.
Imtrtiction: "The declaration charges the defendant with having made
a complaint against the plaintiff falsely, without probable cause, and from
malice and improper motives. It is very important to be determined by
you whether there was in fact a disturbance, and whether there was any
reason on the part of the defendant to believe that there was a disturb-
ance, he being present at the time. The complaint was made on the 17th,
four days after the occurrence, and after a settlement had been had be-
tween the parties on the first complaint. The plaintiff says from wicked
and malicious motives, without probable cause to believe the truth of the
complaint, this defendant caused his arrest. Is this true? If so, then he
is liable to the plaintiff, for all damages which the plaintiff has sustained
thereby, such sum as you may find the plaintiff ought to recover under the
instructions of the court. If he made this complaint against the plaintiff
without probable cause to believe him guilty, and from malicious and im-
proper motives, if for the purpose of compelling him to settle a suit, or
extort money from him, or prevent any proceeding being brought against
him to recover the watch, then the plaintiff ought to recover. This, then,
is the question of fact submitted to you. Determine first whether defend-
ant had reasonable cause to believe that such disturbance had been caused
by plaintiff. If you believe the contrary, and that he had no such reason
to believe the plaintiff guilty, and that he instituted the complaint from
improper, wicked and malicious motives, then they must recover. By
malicious it is not necessary that it should be fevengeful. Any wicked,
malevolent purpose is malicious. It may be to avoid prosecution, or it
may be to compel a settlemejit or extort money, or any other purpoee
which in law is unlawful, and, if so, it is malicious." ^
§ 1 9. Facts constituting probable cause.—
statement: Section 9178 of HowelFs Statutes (Michigan) enacts that
every person who shall wilfully commit any trespass on the land of an-
other by carrying away any roots, fruit, or plant there being, in which he
{ has no interest or property, without the license of the owner, of the value
\ of $5 or more, shall be punished by imprisonment in the county jail not
' more than sixty days, or by fine not exceeding $100.
The defendant made complaint on oath before a justice of the peace that
Eliza Wilson, on the 24th of July, 188o, with force and arms, unlawfully
did enter upon the land of the said Levi L. Bo wen, situated, etc., and did
then and there carry away fifty quarts of whortleberries (sometimes called
huckleberries) then and there growing upon said land, of the value of $5,
without the license of him, the said Levi L. Bowen, — she, said Eliza Wil-
son, then and there not having any interest or property in said whortle-
berries,— contrary, eta A warrant was issued, and Mrs. Wilson was
apprehended and brought before the magistrate, when an adjournment
was bad, and she was released upon her own recognizance to appear. On
the adjourned day the prosecuting attorney requested a dismissal of the
case, which was done by the justice, and the prisoner discharged. Then
she brought an action for malicious prosecution.
1 Edgeworth v. Carson, 48 Mich., 241 ; 5 N. W. Bep^ 840 (1880).
CHARGING THE JURY. 589
, Instruction: " If the defendant had information, from persons whom
he deemed truthful and worthy of credit, that the plaintiff had, during
the summer of 1885, been repeatedly, and two or more times when she
was positively identified by his informants, seen in his whortleberry swamp
picking and carrying away berries, and two or more other times when,
though his informant was not able to identify her positively by having
seen her face, yet, from dress and size, his informant believed it to be she,
and the defendant was satisfied from such information that it was the
plaintiff, and such acts of the plaintiff were without his permission and
against his will, and such different occasions were in the same season, and
within a few days of each other ; and that on several occasions when so
found picking berries she was seen and fully identified by the informants
of the plaintiff; she had several quarts of berries picked and remained in
the swamp picking berries for a considerable time after the berries were
so seen, and the amount noticed by his informants, and the berries picked
were carried away by the plaintiff, and the defendant had no means of
knowing what quantity of berries had thus been taken by the plaintiff
other than the information so received, and an estimate therefrom, and he
actually believed, from such information and estimate, that the quantity
80 taken by her during the season was over fifty quarts, — this would be
probable cause for making such complaint/* ^
§ 20. Facts not constituting probable canse, etc. —
statement: Rice and others were in the peaceable possession of property,
real and personal, near Blue Springs, in Nebraska. Casebeer and others
undertook to dispossess them forcibly. With a concert of action which ap-
peared to be the result of an understanding, they appeared upon the prem-
ises in dispute and by force removed the property there, turning out stock
and removing household property, as well as quantities of grain, etc., until
restrained by the presence of the ofiBcers, who returned the property in
part, and prevented further removals. A fight was the natural result.
Casebeer then caused, as it was claimed, the arrest of Rice and five others
for a criminal offense, commonly called a rout or unlawful assembly. They
were all taken away excepting one woman who gave bail for her appear-
ance. The criminal prosecution was dismissed, and Rice sued Casebeer and
. others for a malicious prosecution. Verdict for plaintiff.
1 Wilson V. Bowen, 81 N. W. Rep., whole subject to the jury under
81 (1887). *' It is the province of the proper instructions as to the rule of
jury to ascertain what state of facts law to be applied, according as they
-exists, and it is the province of the find one state of facts or another,
judge to decide whether that state The law belonging to any state of
of facts constitutes probable cause, facts subject to be found being given
and the law intends that these func- to them in advance, they are en-
tions shall be kept distinct. But, as abled, on coming to an agreement
the law appropriate to the facts can- as to what is the true state of facts,
not be laid down unequivocally to apply the law delivered to them
until it is ascertained what the facts as belofiging thereto, and formulate
■are, it is found necessary, where the result.*' Hamilton v. Smith, 89
they are in dispute, to submit the Mich., 222.
690 OHABOING THB JUBT.
InBtructum: " If you find from the evidence that the defendants, or
either of them, brought, or caused to be brought, or aided, advised, or as*
sisted in bringing the prosecution against plaintiffs mentioned and described
in plaintiffs* petition, and that the acts and deeds of the plaintiffs, which
caused said prosecution to be brought, were committed by plaintiffs in de-
fense of property, of which either or both of them were in lawful posses-
sion, either alone or in common with any other person or persons, against
the unlawful attempt of defendants to get possession thereof, and that said
acts and deeds of plaintiffs were no more forcible and violent than was
necessary for the protection of said property against the unlawful attempts
of defendants to get possession of said property, then the court instructs
you that the defendants had no probable cause for bringing said prosecu*
tion ; and if you further find that said prosecution was wrongful and in-
jurious to plaintiffs, and known and intended by defendants so to be, yoa
will find a verdict for plaintiffs." ^
§ 21. Reasonable inqairy as to facts. —
statement: James W. Watts sued William, Benjamin F., and David EL
Paddock, to recover damages for an alleged malicious prosecution insti-
tuted by the Paddocks against him. He charged that the defendants un-
lawfully, wrongfully, maliciously and without probable cause procured an
indictment to be found and returned against him by. the grand jury, in
which he was charged with the crime of embezzlement. It was alleged
that he had been arrested and tried upon the charge so preferred, and
that he had been found not guilty, and discharged accordingly. The de-
fendants joined in pleading the general issue.
Instruction: (1) Definition of reasonable cause. (2) Now, if you find
from the evidence that the defendants, or either of them, instituted the
prosecution complained of, and that it was false, and that they or either of
them, maliciously, and without first having made reasonable inquiry, and
without the existence of such an apparent state of facts as would induce
a reasonably intelligent and prudent man to believe that the plaintiff was
guilty of the crime charged, then you should find for the plaintiff and as-
sess his damages accordingly.*
§ 22. Allowance to be made for iqjury done to prosecntor.
statement: Hiles was the owner of two warehouses in which was stored
a large quantity of wooden- ware. One night in July, 1883, they were set
on fire and burned with their contents. A week later Hiles made a com-
plaint before a magistrate charging that one Spear, his wife, and Gteorge Ia
Haney were guilty of the crime of burning his warehouses. A warrant
tvas issued, and parties arrested and brought before the magistrate for ex-
amination. The prosecuting attorney for the county, having examined
the complaint, found it insufiBcient, and dismissed the prosecution. He,
however, drew another complaint for the same offense, a second warrant
was issued, and they were again arrested. They waived an examination,
1 Casebeer v. Rice, 18 Neb., 203 ; 24 * Paddock v. Watts, 116 Ind., 146 ;
N. W. Eep., 693 (1885). 18 N. E. Rep.. 621 (1888).
CHABOINa THB JUBT. 591
and, being nnable to give bail, were committed to jail. Here they re-
mained for several weeks, when they were able to procure bail and were
released. An Information was filed against them by the prosecuting attor-
ney, upon which they were ultimately tried and acquitted in the circuit
court. Spear's wife then brought an action against HUes for a malicious
prosecution. On the trial the jury rendered a verdict for $9,000. The de-
fendant appealed.
Instruction: *' In considering that Mr. Hiles had probable cause for in-
stituting the criminal prosecution complained of, you should take into con-
sideration all the facts and circumstances known to Mr. Hiles as appears
from all the evidence in the case, and in this connection should consider
the interest or loss of Mr. Hiles, as shown by the evidence, as one element
or condition upon which to base your finding; for some allowance will be
made when the prosecutor is so injured by the offense that he could not
likely draw his conclusions with the same impartiality and absence of prej-
udice that a person entirely disinterested would deliberately do. All that
can be required of him is that he shall act as a reasonable and prudent
man would be likely to do under like circumstances." ^
§ 23. Possession of stolen property. —
statement: The plaintiff and all the defendants except S. D. Potter resided
in Jones county, Iowa. Potter is a resident of Greene county. In 1874
Potter purchased about fifty head of calves in Jones county, which he drove
to his farm in Greene county. The defendant, Foreman, claimed that four
of the number belonged to him and that they had been stolen from him,
and he instituted a suit for their recovery before a justice of the peace in
Greene county, and on the trial be established his right to them. Potter
claimed that he had purchased said calves from plaintiff, and an indict-
ment was subsequently returned by the grand jury in which he was ac-
cused of the larceny of the property ; but upon the trial of the indictment
he was acquitted. He then instituted this suit, alleging that the defend-
ants had conspired together to institute said prosecution, and that it was
commenced maliciously and without probable cause.
Instruction: To constitute probable cause for criminal prosecution there
must be such reasonable grounds of suspicion, supported by circumstances
sufficiently strong in themselves to warrant an ordinarily cautious man in the
belief that the person accused is guilty of the offense charged. The law does
not require a certainty that an accused person is guilty before another may
proceed against him. It is enough that a felony has been committed, and the
circumstances are such as to lead a reasonably prudent and cautious man to
believe honestly and without prejudice that the accused is guilty thereof.
In determining the question of probable cause for the prosecution of John-
son the following principles of criminal law must be considered by the jury,
namely : The possession of personal property which has been recently stolen
is prima facie evidence that the person in whose possession it is so found
1 Spear v. Hiles, 67 Wis., 856; 80 Rep., 875; McCarthy v. De Armiti
N. W. Bep., 511 (1886); Carter v. 99 Pa. St., 68; Law Mag., 20B.
Sutherland, 52 Mich., 597; 18 N. W.
592 CHABGIKG THE JUST.
or traced stole the property, unless he satisfactorily explains his possession
and shows how he came by the property. If such person attempts to ex-
plain his possession of property recently stolen by statements that he
bought it of an unknown person who cannot be found, and the details of
the purchase, as he gives tiiem, are unnatural, unreasonable or improbabie,
that tends to strengthen, rathf^r than weaken, the presumption of guilt If
his statements as to such purchase from an unknown person are, in material
matters, contradictory and inconsistent — that is, not favorable to inno-
cence; and if, after admitting the possession of property recently stolen,
and attempting to account for it by purchase from an unknown person
who cannot be found, he then denies such possession altogether, — this does
not tend to establish his innocence. ^
§ 24, Probable cause — Accessory to arson. —
statement: Hiles was the owner of two warehouses in which was
stored a large quantity of wooden- ware. One night in July, 18S8, they
were set on fire and burned with their contents. A week later Hiles made
a complaint before a magistrate charging that one Spear, his wife and
George L. Haney were guilty of the crime of burning his warehouses. A
warrant was issued and the parties arrested and brought before the magis-
trate for examination. The prosecuting attorney for the county having
examined the complaint, found it insufficient, and dismissed the proeeca-
tion. He, however, drew another complaint for the same offense, a sec-
ond warrant was issued and they were again arrested. They waived an
examination, and, being unable to give bail, were committed to jail. Here
they remained for several weeks, when they were able to procure bail and
were released. An information was filed against them by the prosecuting
attorney, upon which they ultimately were tried and acquitted in the cir-
cuit court. Spear*8 wife then brought an action against Hiles for a ma-
licious prosecution. On the trial the jury rendered a verdict for $9,000.
The defendant appealed.
There was no testimony tending to show that plaintiff was present when
the defendant's buildings were set on fire. There was, however, sometes-
timony which tended to show that she was an accessory before the fact to
the burning of the buildings ; or, at least, that the defendant had probable
cause to believe her accessory thereto.
Instruction: ** The plaintiff cannot recover in this action if the defend-
ant had probable cause to believe the plaintiff guilty of having set fire to
the buildings burned, and it is not necessary to her guilt, or the defendant's
belief in her guilt, that he believed she. herself, set the fire ; but it is suf-
ficient for the purpose if he had probable cause to believe that she was
privy to the criminal act of any other person who may liave set the fire,
and such act was done with her procurement or advice, or with her con*
sent or knowledge, for any wrongful or unlawful purpose of her own, as
to gratify any feeling of revenge, ill-will or spite which she may haTO had
against the defendant.'* '
1 Johnson v. Miller, 6tf Iowa, 563; N. "W. Kep. 511 (1880). An aooes-
29 N. W. Rep., 748 (1886). sory before the fact to a felony is
2 Spear ▼. Hiles, 67 Wis., 856; 80 said, by a learned aathor, to be "a
OHAKGIKa TfiB JXTftY. 593
§ 25. Facts to be considered on the question of reason-
able cause. —
statement: Davis sold Wisher some land and gave him a bond for a
deed. Wisher failed to make his payments and the bond was forfeited.
Davis sent an Agent to him to get a oonyeyance of the land to a third party.
An arrangement was effected by which the bond was surrendered to Davis,
and a conveyance made as desired for a part of the land, and Wisher was
to have the remainder on payment of a certain sum, and a new bond was
to be given, which for some reason was not executed and delivered. Prior
to this Wisher had made a copy of the original bond, and after the sur-
render of the original be placed it upon record. Sometime afterwards
Davis was notified that Wisher was claiming the land under a contract
executed by him. He went to the record; found the contract; examined
the signatures, and saw they were not his. Then he obtained the advice
of counsel and commenced a prosecution against Wisher for forgery.
Instruction: ** It the jury believe from the evidence that the defendant
had given to the plaintiff a bond for the conveyance of land which was to
be void upon the failure of the plaintiff to comply with certain conditions
therein named, and these conditions were not complied with by the plaint-
iff, and that therefore the bond had become forfeited and void, and had
been delivered up to the defendant by the plaintiff or his agent, and that
previous to such delivery the plaintiff had copied said bond, or written one
person whoee will contributes to a intended is not an accessory. 3
felony committed by another as Hawk., ch. 29, § 29. Neither is tacit
principal, while himself too far acquiescence, nor words which im-
away to aid in the felonious act" ply mere permission, sufficient to
1 Bish. Crim. Law, g 678. It is laid constitute the offense. There must
down by Lord Hale that ** an aocep- be some active proceeding on the
sory before the fact is he who, being part of him who is charged as an ao-
absent at the time of the felony com- cessory, or he is not guilty of the
mitted, doth yet procure, counsel, offense. Archb. Crim. PI., 12, 18.
command, or abet another to com- Yet express consent to a proposed
mit the felony.** 1 Hale, 61S, In 2 felony, esi)ecia11y if the person con-
Hawk., ch. 29, g 16, it is said that senting thereto entertains malice
" it seems to be generally holden towards the object of the proposed
that those who, by showing an ex- felony, may make such person an
press liking, approbation, or assent accessory to the felony when com-
toanother*s felonious design of com- mitted. The distinction between
mitting a felony, abet and encour^ such accessory and the principal
age him to commit it, are all of them felon rests solely in authority, being
accessories before the fact, both to without foundation either in nat-
the felony intended, and all other ural reason or the ordinary doctrines
Celonics which shall happen in and of the law. 1 Bish. Crim. Law,
by the execution of it, unless they g 078. At common law and under
retract and countermand their en- the statutes of nearly all the states
couragement before it is actually the punishment of the principal
committed." One who basely oon- felon and the accessory is the same,
ceals a felony which he knows to be
88
591 OHABGING THB JUBT.
of similar import signing the defendant's name thereto, or caused the same
to be done, with intent to assert rights under said bond to the damage or
prejudice of the rights of the defendant, such conduct on the part of the
plaintiff may be considered by you in passing on the question whether the
defendant had reasonable and probable cause to procure the arrest of the
plaintiff on the charge of forgery.'* ^
Advice of Counsel.
' § 26. The doctrine announced by the supreme court of
Iowa.* —
Plaintijp9 instruction: ''Whether or not the defendant did, before in-
stituting the criminal proceedings, make a full, fair and honest statement
to the district attorney of all of the material facts bearing upon the guilt
of the plaintiff of which he then had knowledge, and whether^ in com-
mencing such prosecution, the defendant acted in good faith, upon the ad-
vice of said attorney, are questions of fact to be determined by you from
all the evidence and circumstances in the case. And if you believe, from
the evidence, that the defendant did not make a full, fair and truthful
statement of such facts to the attorney, or that he instituted the criminal
proceedings from a fixed determination of his own rather than from the
advice of said attorney, then the advice of the prosecuting attorney is not
a defense to this action.**
§ 27. The doctrine as laid down by Hilliard' and Wait.^—
Plaintiff ^8 instruction: ** Whether or not the defendants, or some d
them, did, before instituting the proceedings, make a full, fair and honest
statement to the district attorney of all the material facts bearing upon the
guilt of the plaintiff of which they had knowledge, and which they could
have ascertained by reasonable diligence, and whether, in commencing
such prosecution, the defendants acted in good faith upon the advice of
said district attorney, are questions of fact to be determined by you from
all of the evidence and circumstances in the case. If you believe from
the evidence that none of the defendants made a full, fair and truthful ,
statement of such facts to the district attorney, or that they instituted the |
criminal proceedings from a fixed determination of their own rather than
from the advice of said district attorney, the advice of the prosecuting at-
torney would not be a defense in this action.**
§ 28. Advice by counsel mistaken in the law. —
Instruction: "If the jury believe from the evidence that, previous to
making said charge, the defendant, being doubtful of his legal rights, had
consulted with legal counsel in relation thereto (withholding no material
facts from his counsel), and made the charge pursuant to the advice of his
1 Davis V. Wisher, 72 111., 262 on Torts, 506; 4 Wait*s Actions &
(1874). Defenses, 886.
s Johnson v. Miller, 69 Iowa, 562; * 1 Hilliard on Torts, 506.
29 N. W. Bep., 748 (1886) ; 1 Hilliard « 4 Wait's Actions & Defenses, 885 ;
Boy V. Gk>ing8, 112 111., 668i
OHAB0IKG THE JX7BT. 595
attorney and without malice, then sach advice is sufficient probable cause
for maicing the charge, and he is not liable to this action, although his
counsel may have mistaken the law ; and if such facts be proven, you must
find for the defendant." ^
Fahe imprisonment: The instructions upon the question of probable
cause, advice of counsel, etc., as given under the action of malicious prose-
cution, are equally applicable to actions for false imprisonment. It is not
necessary to repeat them here.
§29. False imprisonment defined.— The coart instructs
the jury that, in order to sustain a charge for false imprison-
ment, it is not necessary for the plaintiff to show that the de-
fendant used violence or laid hands on him, or shnt him op
in a jail or prison; bat it is sufficient to show that the de-
fendant, at any time or place, in any manner, restrained the
plaintiff of his liberty, or detained him in any manner from
going where he wished, or prevented him from doing what
he wished ; provided this is done without legal authority, as
explained in these instructions.'
§ 30. Wliat is an arrest. — To constitute an arrest and im-
prisonment, it is not necessary that the party making the
arrest should actually use violence or force towards the party
arrested, or that he should even touch his body. If he pro-
fess to have authority to make the arrest, and he commands
the person, by virtue of such pretended authority, to go with
him, and the person obey the order, and they walk together
in the direction pointed out by the person claiming the right
to make the arrest, this is an arrest and imprisonment within
the meaning of the law. An actual laying on of the hands,
or personal violence, is not necessary ; it is simply necessary
that the arrested party be within the control of the officer or
other person making the arrest, and submits himself to snch
control, in consequence of some claim of right to make the
arrest, or threat to make it, by such officer or other person.
Any deprivation of the liberty of another without his con-
sent, whether it be by actual violence, threats or otherwise,
constitutes an imprisonment within the meaning of the law.*
1 Davis V. V7isher, 72 HI, 262 steel, 2S Wis., 246; Harkms v. State,
(1874). 6 Tex. App., 452; Murphy v. Ma]>
sCooley on Torts, 169; Brushaber tin, 58 Wis., 276; Gelxenleiichter ^»
▼. Stagemann, 22 Mich., 266; 2 Ad- Neimeyer, 64 Wh^ 816, Sacketfs
dison on Torts, 697 ; Hawk v. Ridg- Instructions (2d ed«X 68V (iSesj^
way, 88 Dl., 478; Bonesteel ▼. Bone- 'S Addlscm on Torts, g 7M; OoqI«7
596 oHASciiNa trb JintT.
§31. Daress and threats. —
statement: George E. HcClare, W. Q. McGlure, and one Kelly were
Jointly indicted for the false imprisonment of one WoWerton. Wolverton bad
pQrchased a barrel from a store in which appellant was a clerk, and driven
off with it in bis wagon, when appellant went after him and reqaested the
retarn of the barrel, saying that it had been previously sold to another.
Wolverton refused, and a struggle ensued in which McCIure obtained poe-
session of the barrel, and took it back to the store. Kelly, who was a
police officer, told Wolverton that he must go back to the store, and that
he could not leave town until the matter was settled. Wolverton testified
that he considered himself under arrest, and went back to the store.
Instruction: " Where the means used are threats, they must be such as
are calculated to operate upon the person threatened, and inspire a just
fear of some injury to his person or property ; and must be sufficient to in-
timidate and prevent such person trom moving beyond the bounds in whidi
he was detained, if he was detained at all. A mere contest and wordy
altercation between two persons for the possession of an article of personal
property, each in good faith claiming the right thereto, and in which the
party in posse8sion,.and sought to be dispossessed, voluntarily and of his own
accord remained at the place of altercation for the purpose of better protect-
ing his possession, and where he was not detained or sought to be detained
by the other, would not constitute false imprisonment. No person dis*
puting the right of possession of another of an article of personal property,
and going into a struggle or fight for it, is, when his object is the posses-
sion of the property, and not the detention or restraining of the person so
in the possession, guilty of false imprisonment : so that if you find that Q. K
McOlure disputed the right of possession of the barrel with Wolverton, and
entered into a contest with him for the possession of the same, and his
object was the possession of the barrel and not the detention of Wolverton,
and that Wolverton's person was not by him either detained or sought to be
detained, you will find him not guilty ; and this, though it should appear
that Wolverton of his own free will remained upon the ground for the pnr^
pose of better asserting his claim to the barrel.'* ^
§ 32. Defendant must act npon sncli Information as
wonld induce a reasonably prudent man to beliere tke per-
son guilty.—
Instructtonn, The court instructs the jury that the plaintiff must satisfy
them by a preponderance of the evidence : (I) That there was no probable
cause for the arrest on the part of the defendant, and (2) that it was done
malicioosly ; that " probable cause '' was a reasonable ground of suspicion
of guilt, supported by circuiustances sufficiently strong in themselves to
warrant a cautious and prnd^it man in entertaining an honest belief that
a party is guilty ; that if tlie defendant acted upon such informatioa as
would induce a rettsonabi«, prudent man to believe the plaintiff guilty, he
eA Tone, lfl»; dackett's Revised In- ^McClure v. State, 110 Ind., 160;
rtractfons^ 681 (1888;. il a W. Bep., 868(1868).
OHABOING THB JUBT. 597
was not liable, whatever might have been his personal motives ; that the
question of probable cause did not turn on the actual innocence or guilt of
the party, but upon the defendant's belief at the time, upon reasonable
grounds ; that mere belief occasioned by the defendant's own negligence
or want of proper investigation or reflection, would be no justification to
him ; that if the facts fell short of a legal measure of probable cause, and
the defemlant was honest in his error and acted in good faith, and from a
sense of supposed duty, he would not be liable ; that it must therefore be
shown that he acted maliciously ; that malice in its legal sense means an
improper and sinister motive, not necessarily spite and hatred to the plaint-
iff: that the act need not have been prompted by malevolence or any cor-
rupt design towards the plaintiff; that an act done wrongfully and without
reasonable and probable cause, in a wanton disregard of the right of an-
other, was malicious in law ; and therefore, if they found that the defend-
ant had acted in this case without probable cause, they might infer malioe
on his part, but that this inference might be rebutted by any circumstances
which showed that the defendant's purpose was a fair and honest one.^
§ 33. Estoppel of plaintiff by false representations. —
Statement: An officer, after attaching property under a writ which might
have been served either (1) by attachment of property, or (2) by arrest of
the person, but not by both, was induced to abandon the attachment by false
representations of the defendant that the property was not his, and there-
upon to make service by arrest. It was held that such representation
estopped the defendant, in a subsequent action against the officer for false
imprisonment, to say that his property was attached, and it was immaterial
that the property remained in the custody of the officer at the time of the
arrest if he surrendered possession of it within a reasonable time thereafter.
Instruction: *' An officer has no right to make an attachment of a de-
fendant's property and a subsequent arrest on the same writ ; and such
arrest would be without justification. But if in the present case the jury
find that the plaintiff, in this suit, told ^the officer that the property he had
attached was not his, but belonged to other parties, and that the defendant
then said, *If the property is not yours, I am ordered to arrest you,' and
the plaintiff said, * Then I must go ; ' and that the officer, relying upon
the assertion of the plaintiff, and intending to abandon the attachment,
thereupon arrested the plaintiff, the plaintiff is estopped to claim in this
suit that his property was in fact attached, and that his assertion was false.
The defendant was not bound to omit arrest of the prisoner, to seek oat
some person authorized to receive the attached property, or to go to the
pla^p where it was, to discharge the keeper. If, before the arrest was made,
the defendant made up his mind to release the attachment, and did in fact
release it as soon as he reasonably could, having regard to all the circum-
stances of the case, that was sufficient at all events."'
§ 34. Persons assisting officers. —
statement of the facta: Action by Daniel Firestone against Walter J.
Rice and Frank Fenn for false imprisonment.
1 Mitchell ▼. Wall, 111 Mass., 497 > Ladrick v. Briggs, 105 Mass., 506
(1878). (1870).
598 OHABOING THB JUBT.
This suit was brought to recover damages for false imprisoDinent alleged
to have taken place on the night of August 6, 1885. Bice, at the time, was
sheriff of Allegan countj, and Fenn was night-watch of the Tillage of Al-
legan. The arrest occurred in the township of Monterey, in that county.
Upon the trial it appeared that Fenn was requested by the sheriff to aid
him in the arrest, and did nothing except as ordered by the sheriff. The
chief indignity complained of was the handcuffing of plaintiff. Fenn pat
the handcuffs upon him by direction of the sheriff, who had in his charge
at the time one Zeigler, who was arrested at the same time and place as
the plaintiff.
Instruction: " If Fenn knew that Rice was sheriff, and acted in obedi-
ence to his orders, and only upon his orders, in what he did touching the
arrest, he would be justified in so doing, even though the acts of Rice were
without authority, and the verdict, as to Fenn, should be, no cause of
action. Under the laws of this state, a private citizen is bound, upon the
order of the sheriff, to assist in the arrest, and he is not authorized to wait
to ascertain the authority of the officer before acting; and unless liisact in
itself is in some way wanton, and beyond what he is required to do, and
thereby a trespass is committed, he will not be liable.'* ^
§ 35. Permitting a convicted party to go at large^ and a
year later arresting him on a capias. —
statement^ A party accused of the crime of assault and battery was tried,
convicted and sentenced to pay a fine and costs on the 10th of July, 1850.
Thereupon the party thus convicted was permitted to go at large, and no
order for his committal was then made. On the 19th of June, 1851, nearly
a year after this, the justice issued a mittimus, and the party was arrested
by an officer and committed to prison. The writ of committal was a com-
mon mittimtis, such an one as would have been appropriate on the day of
the conviction if he had failed to pay the fine and costs. After his release
he brought an action for false imprisonment against the justice.
Instruction: " If the jury were satisfied that the magistrate voluntarily
suffered and allowed the plaintiff to pass from custody before him, and by
his order or consent permitted him to go and be at large, the defendant,
not having first issued a capias or any proper process to bring the plaintiff
again before him, had no right to issue the mittinius aforesaid, and that,
the same so issued being illegal, afforded no sufficient justification for the
arrest of the plaintiff. The defendant, by causing his arrest upon such
mittimus, was rendered liable in an action for false imprisonment.*'*
§ 36. Toid warranty etc., no justification in mitigation
of damages, etc. —
statement: Mrs. Justina Patzack was brought before Von Gerichten, a
justice of the peace in St. Louis county, Missouri, on complaint of Creorge
Heitz, Jr., for disturbing of complainant and his family and of the neigh-
borhood by loud and unusual noises and by vulgar and indecent language,
etc. The justice had jurisdiction to hear the matter on a preliminary ex-
1 Firestone v. Rice, 71 Mich., 377; 2 Daggett v. Cook, 65 Mass., 263
88 N. W. Rep., 885 (1888). (1853).
CHABGINO THE JUBY. 599
amination and to release or commit her for trial before the court haviog
jurisdiction of the offense; but the justice proceeded, in excess of his
jurisdiction, to hear the case, and finding her guilty he imposed a fine upon
her, and in default of the payment he committed her to jail. Upon her
d.Bcharge in January her husband, with her, then sued the justice, constable
and jailor for falee imprisonment. Judgment for plaintiff, $217.54.
Instructions for plaintiff: If the jury find from the evidence that Jus-,
tina Patzack was and is the wife of Adolf Patzack, and was on or about
November 13, 1879, imprisoned in the common jail of the city of St. Louis,
without her consent, and kept there against her will for about twenty-
four hours, then all those defendants aiding or assisting in imprisoning
her are liable in damages to plaintiffs herein, and the complaint, warrant
or commitment herein read to the jury are no justification to any one of
the defendants.
Instruction for defendants: If the jury believe from the evidence that
the defendant Von Gerichten was a justice of the peace, that the defend-
ant Decker was a constable, that the defendant Ryan was the jailor, and
that the only connection had by these defendants with the matters charged
la the petition grew out of the official position so held by them as afore'
said, and that in all that was done by them in the premises they acted
under the process read in evidence, in good faith, and without malice or
any intention or desire to injure the plaintiff, the jury should take these
facts into consideration in determining their verdict.^
§ 37. Arbitrary arrest — Joint liability.—
statement: The plaintiff was living in Chicago and engaged in the gro-
cery business. The defendants, M. and McH., were members of the city
police. The evidence tended to show that on the night of the 10th of June.
1882, about 11 o'clock, the plaintiff, while standing on Wells street a little
south of his place of business, discovered the defendants on the opposite
Bide of the street dragging a man along the street. On discovering them
he went to his own premises, getting there a little ahead of them. The
man was in a drunken and helpless condition, making no resistance what-
ever, so that by a mere looker-on it could not have been told whether he
was dead or alive but for the occasional groans that escaped him as he was
being rapidly and recklessly dragged over the rough street. As they passed
along in front of his premises the plaintiff hailed them and told them it
was a shame to treat one as they were treating the man in their custody.
The officers retorted in an insulting and abusive manner, whereupon the
plaintiff told them he would on the following morning report them. This
seemed to exasperate them, so that they came up to him, and M. seized
him by the throat and choked him for some time, and then let him go.
Then the plaintiff went into a saloon adjoining his premises and called on
an acquaintance to come and identify him, stating that he was going along
with the officers. The latter had followed him into the saloon, and McH.
arrested him. While he was thus under arrest and being held by McH.,
M. came up and struck him a violent blow upon the head with a club,
1 Patzack v. Von Gerichten, 10 Mo. App., 424 (1881).
600 OHABQING THE JUUT.
which felled him to the floor in a senseless oondition. The blow apon the
head produced an ugly wound, from which the blood flowed freely. After
some little delay, plaintiff was carried out of the saloon and laid down
upon the sidewalk in a helpless and almost senselew condition, the wound
still bleeding profusely. Upon reviving somewhat, he was taken to the
police-station, where the defendants preferred against him the baseiees
charge of interfering with an oflicer, of which be was subsequently ac-
quitted.
Instruction: " If the jury believe, from the evidence and under the
instructions herewith given, that the defendants M. and McH. were boih
engaged in the common purpose of unlawfully arresting the plaintift, auu
timt McH. had laid hold of the plaintiff, and that M. immediately after-
wards, in pursuance of said common purpose of unlawfully arresting said
plaintiff, struck said plaintiff with a club, and that said striking was done
in the presence of McH., and that he did not try to prevent the same, but
on tlie contrary thereof, adopted and approved said act of said M, in strik-
ing said plaintiff, then the jury are instructed that said McH. is as respon^
sible in this action for said striking as is M." ^
§ 38. Duty of officer making an arrest upon yiew. —
statement of facta: The defendant was a constable and arrested the
plaintiff for being found in a public place in a state of intoxication. On
the way to the lockup the plaintiff begged to be released, promising to go
peaceably home and refrain from drinking any more. The defendant con-
sented and suffered him to go at large, and did not in fact afterwards take
him into custody on this charge, or make a complaint against him, or carry
him before the court aa he was required to do by the statute authorizing
such arrests. The evidence showed that when the defendant released the
plaintiff he told him to be on hand to go to court the next morning; that
the defendant went to the clerk of the court for a wai-rant, but came away
without one, and took no further steps in the matter. The evidence on
t.ie question of the plaintiff's being intoxicated was conflicting. The jury
found for the plaintiff in the sum of $50.^
Inatructiona: (1) An officer who, without a warrant, arrests a person
for being intoxicated, does so at his peril ; and if it afterwards appears
that the person so arrested was not in fact intoxicated, within the mean-
ing of the statute, at the time of the arrest, the officer is liable in trespass,
notwithstanding he made the arrest in good faith and under a reasonable
belief that the person was intoxicated.^
(2) After an officer has, without a warrant, once arrested a person for
being intoxicated in a public place, he is bound to carry him before a
proper court; and if he fails to do so, he is liable, unless it is shown that
the person arrested requested or consented to the discharge ; and in order
to release the officer from liability upon this ground, the jury must be satis-
fled that it was understood and agreed between the parties at the time
that no further proceedings were to be taken in the matter.
*Mulim V. Bpangenberg, 113 111., 2 Sustamed, Phillips v. Fadden, 125
14SJ, Maas., 198 (1878).
OHABGINa THB JUST. 601
§ 89. Trespassers are jointly and severally liable. —
statement: Victor M. Hardin sued William Ouslj and Thomas Ously in
trespass. On the trial the plaintiff produced evidence tending to show that
the defendants charged him with having stolen from one of the defendants
some money and a watch, and that they tied him and whipped him to get
the same back.
Instruction: (!) *'The court instructs the jury that, in an action of tres-
pass, if the jury believe, from the evidence, that a trespass has been com-
mitted, as alleged in the declaration, and that there was more than one
wrong-doer engaged in the trespass, then suoh wrong-doers are jointly and
severally liable, and the plaintiff is under no obligations to sue all who are
engaged in the trespass ; he may, at his election, proceed against any one
or more of such wrong-doers." i
(2) '*If the jury believe, from the evidence, that A. B., one of the de-
fendants, and he alone, assumed the immediate control and detention of
the plaintiff at the time in question, still, if you further believe, from the
evidence, that the other defendants, or any of them, were then present, act-
ing in concert with the said defendant A. B., and were wrongfully inciting
him to arrest or imprison the plaintiff, then suoh other defendant or de-
fendants will be equally liable with the said A. B., provided you find him
guilty, under the evidence and instructions of the court." ^
§ 40. When not liable as joint trespasser.— Although the
jury may believe, from the evidence, that the defendant C.
proved up his claim before the justice of the peace, as testified
to by the plaintiff, still, unless you further believe, from the
evidence, that the said C. aided, advised or assisted in the ar-
rest of the plaintiff^ then you should find the said C. not guilty,
unless you further find, from the evidence, that since the ar-
rest he bias approved or adopted the acts of those who did
cause it.'
§ 41. Who are liable as joint trespassers. —
statement: M. claimed to have purchased a lot of books of F., and while
the books were in M.'s possession they were seized on a writ of attachment
sued out by B. C. and others against F., and by them directed to be levied
upon the books as the property of F.
IrMruction: The court instructs the jury that the law is, that all parties
who engage in making an illegal or unlawful arrest are trespassers; and
if the jury believe, from the evidence, that the defendants, or either of
1 Ously ▼. Hardin, 23 III., 403; >Ck)oley on Torts. 129; Avrill v.
Sackett*s Revised Instructions, 532 Williams, 4 Denio, 295; Abbott v.
(18'»). Kimball, 19 Vt., 661; Snydacker v.
> Whitney v. Turner, 1 Scam. (111.), Broese, 61 111., 867.
258 ; 8ackett*8 Revised Instructions,
532 (1888).
602 OHABOING THE JURY.
them, restrained the plaintiff of his liberty, as cbarged in plaintiff's dedara-
tion, and without authority of law, as explained in these instructioDfly
then such persons are liable to the plaintiff in this action. ^
§ 42. Part of defendants only guilty — Form of verdict. —
If the jary believe from the evidence, under the instructions
of the court, that some of the defendants are guilty of the tres-
passes alleged in the declaration and some not guilty, then the
jury should find, in their verdict, in favor of the plaintiff and
against those of the defendants who are so proven to be guilty,
and, as to the other defendants, that they are not guilty, and
in either case mentioning the defendants by name.'
§ 43. Liability of infant — Ratification.—
Statement: William Seaver, as next friend of Herbert Seavems, a minor,
began a suit against Mr. Burnham. Judgment was finally rendered in
favor of Mr> Burnham, who thereupon brought an action against Seavems,
he having attained his majority, for malicious prosecution. The defend-
ant's evidence tended to show that the action was brought in his name,
without his knowledge, by Seaver, who was his uucle; that he himself
took no part in conducting it; and that Seaver paid all the expenses and
costs ; but that evidence was controverted by the plaintiff. Upon cross-
examination the plaintiff testified that he first knew of that action six
weeks after it was begun ; that he '* knew of its pendency " from that time
till the final judgment; and that judgment was finally entered therein for
this plaintiff because this defendant did not wish to have the action prose-
cuted further after the death of his sister. The only other evidence of the
assent of this defendant to that action was that he never interfered to pre-
vent its prosecution until or except as above stated, and that about six
months after it was begun he had an interview with the attorney employed
to conduct it.
Instruction: '*If the defendant has shown that he was an infant, and
that the alleged malicious suit was brought without any authority from
him or any consultation with him by his uncle as his next friend, at his
own expense and charge, then the defendant was not responsible, even if,
on hearing some time afterwards that the suit was brought by Seaver, he
did not actively interfere to prevent its being carried out." *
Damages.
■ § 44. Damages. — The court instructs the jury if they be-
lieve, from the evidence, that the defendant maliciously caused
the arrest and imprisonment of the plaintiff, without probable
iCallaghan V. Myers, 89 111., 566; ^Sackett's Revised Instructions,
Sackett*0 Revised Instructions, 532 533.
(1886). 'Burnham v. Seaverns, 101 Mass.,
360 (1869).
OHABOING THB JUBY. 603
caase, as alleged in the declaration, then the jury should find
for the plaintiff, and assess his damages at what they think
proper, from the facts and circumstances proved. Damages
are of two kinds, compensatory damages and exemplary dam-
ages. The former are allowed to compensate the plaintiff for
the actual injury he has sustained. The latter are given as
smart money in the way of pecuniary punishment.*
§ 45. Compensatory damages, when exemplary damages
are not claimed. — In this action the jury should only allow
what are known as compensatory damages — that is, such an
amount as will make good to the plaintiff the damages actu-
ally sustained by him, provided the jury find the defendant
guilty ; and if the jury find from the evidence, under the in-
structions of the court, that the defendant is guilt}^ then in
fixing the plaintiff's damages they may include the delay
in his business, if proved, also any bodily pain or mental
anguish, if they believe, from the evidence, that such pain and
mental anguish were suffered by the plaintiff in consequence
of the acts complained of, and also any injury to the plaint-
iff's business, profession, reputation or social position, if they
believe, from the evidence, that he has sustained such injury
by reason of the wrongful acts complained of, and give the
plaintiff such an amount of damages as they believe, from the
evidence, will compensate him for the injury thus received.*
§ 46. Exemplary damages defined.— Exemplary damages
mean damages given by way of punishment for the commis-
sion of a wrong wilfully or wantonly, or with some element
of aggravation. They are not the measure of the actual
damage sustained, but they are given as smart money in the
way of pecuniary punishment, to make an example for the
public good, and to teach other persons not to offend in like
manner.'
§ 47. Exemplary damages in false imprisonment. — If,
under the evidence, you find the defendant guilty, and if you
believe from the evidence that he was guilt}' of wilful, gross
and wanton oppression of the plaintiff, then, in assessing the
^Sackett's Revised Instructions, 'Bates y. Davis, 76 HI., 222 ;
209. Sackett's Bevised InstnictiooB, 843
sSackett*8 Instructions (2d ed.), (1888).
848 (1888).
604 OHABGINO THB JUBY.
^ •
plaintiflTs damagea, you are not limited to the amount of bis
actual pecuniary loss, but you may also take into considera-
tion bis physical pain or bodily suffering, if any is shown,
also his mental suffering, such as anguish of mind, sense of
shame, humiliation, or loss of honor, reputation or loss of so-
cial position, if you Qnd that these things have resulted from
the acts complained of, and allow the plaintiff such compen-
sation therefor as you think will make good the injury sus-
tained.*
§48. The same lu malicious prosecutions — Pecuniary
circumstances of defendaut. — In actions of this kind, if they
find the defendant guilty under the evidence, and that the
plaintiff has sustained any injury by reason of the charge
brought against him, then, in assessing his damages, the jury
are not limited to mere compensation for the actual damage
sustained by him; they may give him such a further sum by
way of exemplary or vindictive damages as the jury may
think right in view of all the circumstances proved on the
trial, as a protection to the plaintiff and as a salutary exam-
ple to others to deter them from offending in like manner;
and in determining the amount of exemplary damages which
would be proper to give, the jury may take into consideration
the pecuniary circumstances of the defendant so far as they
have been proved.*
§49. Defendant's wealth may be considered.— " If the
jury find that the defendant wantonly and maliciously caused
the arrest of the plaintiff with th3 intent to injure his feelings
and disgrace him in the estimation of the public, the jury not
only may, but they ought to, go further, and give punitory
damages in such a sum as will be a warning to the defendant
and ail other persons not to commit such wrongs and injuries.
Punitory damages are given in law as an admonition to the
defendant and all other persons not to perpetrate similar
wrongs; and consequently such damages, to be effectual, must
have some relation to the financial ability of the defendant.
A sum in damages which would be a salutary warning to a
^Stewart et al. v. Maddojc, SSInd., 57 111., 253; IH. & Sk L. IL Ca t.
62; Scripps ▼. Biley. 38 Mich., 10; Cobb, 68 lU., 63.
Fenelon v. Butts, 53 Wis., 344; > Winn v. Peokham, 43 Wis., 498.
Seag. ozi Dam., 86; Cutler v. Smith,
OHABGINO THB JUBT. 605
man of limited means would hardly arrest the attention of a
millionaire; and it is on that theory alone that the testimony
of the financial ability of the defendant was admitted."^
§ 50. Good faith in mitigation of damages. — If, from the
evidence, under the instructions of the court, the jury find the
defendants, or any one of them, guilty as charged in the dec-
laration, still, if you further find, from the evidence, that in
making the arrest complained of, such parties, in good faith
and without malice, were only pursuing what they supposed
were their just rights, by legal remedies, then this fact may
be considered by the jury in fixing the amount of damages,
and as tending to show that only actual damages should be
given.*
1 Spear ▼. Hiles, 67 Wis., 850; 80 ^Sackett's Revised Instructions,
N. W. Eep., 600 (188«X ^688.
ANALYTICAL INDEX.
ABANDONMENT OF SUIT (848, 844):
When an end of the proeecution, 848, 84^
Not necessarily an end, 844.
ABUSE OF PROCESS (74, 75):
Officers liable for, when, 75.
Discussion of the subject, 75.
Officer exceeding his powers, 75, 76.
Carrying prisoner out of the jurisdiction, 78. *]
Liability ofjiidieial officers^ 168.
Fisher's Case, 168.
Use of criminal process to enforce the payment of a debt, 168, 164.
Wood's Case, 164, 165, 166.
An action lies for the malicious abuse of lawful process, 165.
Protection afforded officers lost by abuse, 165.
Officer abusing his process becomea a treapaBser a5 initio, 166.
For refusing bail, 186.
Excessive force, 186.
For unwarrantable insults, etc., 186.
Denial of proper food, 186.
Oppression and undue hardship, 186.
The law stated by Walker, J., 186, 187.
Illustration, Slomer's Case, 187.
The process is no protection when the dbjeet of the torit is to eostort
money, 189.
Illustration, Hackett's Case, 189.
Element of probable cause, 260, 261, 262, 268, 264.
Want of probable cause, 260, 261, 262,.268.
ACQUITTAL OF THE ACX}USED:
Evidence of a want of probable cause, 298, 294, 298i
By magistrates as an end of the prosecution, 851«
Bflfect on probable caupe, 289, 290.
ACTIONS FOR MALICIOUS ARREST, 476.
ACTIONS FOR MAUCIOUS PROSECUTIONS
Probable cause, 279.
ADMINISTRATORS:
As parties, see Pabties, 898, 894.
608 ANALYTICAL INDEX.
ADVICE OF COUNSEL IN ACTIONS FOR MAUCIOUS PROSBCU-
TIONS(309):
The authorities not uniform, 809.
The general rule, SOd, 810.
The law stated by Walker, 811.
Advice must be given upon a full statement of the facts, 811, 820«
Nature of the statement of the facts, 811.
What must be stated, 811.
Advice of the state's attorney, 811, 813, 823.
Where one attorney advises a prosecution and another does not, 818.
Proceedings must be instituted in good faith, 813.
Finding of the jury on the question of good faith, 818.
ADVICE OF COUNSEL A COMPLETE DEFENSE (318):
Advice of attorney interested in the case, 814
Character of the attorney, 814, 815.
Advice of a justice not sufficient, 815, 818.
Advice of a justice in Pennsylvania, 810.
Honest prosecutors protected as a matter of public policy, 817,
Prosecutors I'elying upon statements of persons who refuse to swear to
them, etc., 818.
Duty of persons seeking such advice, 818.
Must make reasonable inquir}' as to the existence of facts, 818, 819,820.
What efforts to obtain information, etc., 818, 819, 820.
Efff^ct of not laying all the facts before counsel, 830, 831.
Advice of police officers, etc., 328.
Effect of advice of persons who are not lawyers, 838»
When proper in mitigation of damages, 838.
Competency on the question of malice, 838, 834.
ADVICE OF COUNSEL IN ACTIONS FDR FAIA1& IMFRISONMENT
(825):
Not a defense, but may be given in mitigation of damages^ 826«
Evidence of, competent on the question of malice, 899.
Advice of an inexperienced attorney, 835.
ADVICE OF COUNSEL, EVIDENCE OF (470):
Its sufficiency as a defense, 471.
A question for the jury, 471, 473.
As to probable cause, 370.
An element of probable cause, 370.
ADVICE IN GENERAL (828, 824):
Competent in mitigation of damages, 838, 834.
Competent on question of malice, 838, 834.
ACJORAVATION OF DAMAGES (515):
What may be shown in aggravation of damages, 516b
ANSWERS: See Plejldinos, 89a
APPRENTICE: See Master akd Apprbntice, 111,
ANALTTIOAL D^DBZ. 609
ARREST DEFINED (59):
Nature of the term, 59.
The beginning of an imprisonment, 59.
What is an arrest, 59.
What is not, 59, 00.
In civil proceedings, 59, 60.
In criminal proceedings, 00.
General rules relating to arrests. 60.
A legal arrest, actual touching of the person, 60, fUL
Words alone not sufficient, 00, 01.
Where the person submits, 61.
Detention of the person, 03.
Amount of force necessary, 03.
What detention is sufficient, 03, 68.
Summary of the law of, 66.
The rule stated by Murfree, 66.
ARREST WITH PROCESS (07):
Manner of arrest, 73, 78, 75.
The law stated, 78, 75.
Use of handcuffs, 78, 75.
ARREST WITHOUT PROCESS:
, At common law, 08.
Under statutes, 09.
Time of making, 09.
Resisting officers, etc., 09.
Justifiable; breach of the peace, etc., 69.
Power to arrest without process must be exercised promptly, 71.
When an officer may arrest without warrant, 71.
For what causes at common law, 71.
Felony committed in his presence, 71.
For felony not committed in his presence, 71.
Officer must use reasonable diligence to make arrest, etc., 71.
ARREST WITHOUT WARRANT (170) :
The rule stated by Savage, C. J. . 170.
Where a felony has been committed, 170.
Where there is time to obtain a warrant, 170, 177. «•
niustration; Holly's Case, 177-179.
Look's Case, 180.
ARRESTS BY PRIVATE PERSONS (88):
On view, 88.
On information, suspicton, eta, 84.
Arrest without process by private persons, 197.
When the right ceases, 197.
By private persons appointed by magistrates, 83.
Appointment of a minor sufficient, 83.
ARREST OF RIGHT PERSON BY WRONG NAME (17:^:
Of wrong person by right name, 173.
An exception to the rule, 173.
89
610 ANALYTICAL INDEX.
ARREST OF RIGHT PERSON BY WRONG NAME (continaed):
The law illustrated, 172, 178.
Mead's Case, 174.
Scott's Case, 178, 174.
Holmes' Case, 176.
ARREST ON BODY EXECUTION AFTER JUDGMENT SATISFIED
(183):
Illustration ; Davis' Case, 184, 185.
Body execution without judgment, 185.
False imprisonment under voidable process, 185.
Chapman*s Case, 186.
ARREST AND HOLDING TO BAHi:
Not indispensably necessary in an action for malicious proettcution, 89.
ARREST FOR THEFT:
Settlement and discharge, 271.
ARREST UNDER CITY AND VILLAGE LAWS, 79.
ARREST UPON PROBABLE CAUSE, 94.
ARREST OF NIGHT-WALKERS, 78 :
Probable cause for arrest of night-walkers, 79.
Encouraging the arrest of persons privileged from arrest, 100, 101.
Procuring the arrest of a person without process, 100, 101.
Participation in acts which cannot be justified under the authority of
the officer, 101.
ASSESSMENT OF DAMAGES (502):
Upon the trial of an issue, 508.
Upon default or demurrer, 503.
What the defendant may show, 508.
Discretion of the jury, 504.
Under a default, evidence in justification not proper, 605*
The rule in actions for false imprisonment, 506.
Assessment jointly against all defendants, etc., 506.
ATTACHMENT:
Maliciously suing out, 52.
The law jtated by Nelson, C. J., 53.
ATTORNEYS AND COUNSELORS AT LAW (309):
Advice of, a defense in actions of malicious prosecution, 809, 810, 811.
See Adyicb of Counsel, 809 et seq.
Upon what the advice must be given, 811, 820.
The rule where attorneys disagree, 813.
Attorney the mere agent of his client, 163.
The client responsible for his acts, 163.
Not permitted to deny his authority, 163,
ATTORNEYS AS PARTIES (380. 381):
Liability for. malicious prosecution, 36.
Liability for bringing a civil suit, 58.
The law stated by Shaw, C. J., 63.
ANALYTICAL INDEX. 611
ATTORNEYS AS PARTIES (continued):
Liability for the acts of his clerk, 214.
Client's liability, etc., 214.
niustration ; Shattuck's Case, 214,
Liability for false return on execution, 210. ^
Illustration ; Farmer's Case, 218.
Procuring false return, 216.
ClienVs liahUityfor his attorney's acts, 212, 218.
Illustration; Deyo's Case, 213.
Capias issued after satisfaction of judgment, 218.
AUTHORITY OF THE OFFICER:
Derived from the writ, 172.
B.
BAIL:
Holding to bail not indispensably necessary in actions for malicious
prosecution, 89.
Liability of party ordering officer to refuse, 102.
BODILY AND MENTAL SUFFERING, 484.
BREACH OF THE PEACE (69):
What is a breach of the peace, 69, 70.
Arrest on view for, 71.
Power of officer in case of, 70.
BURDEN OF PROOF:
Plaintiff must show a want of probable cause, 278, 276ii
a
CHARACTER:
Presumption of, 465.
Plaintiff may prove it affirmatively, 465.
Particular instances, etc., incompetent, 465. -
The law stated by Taylor, J., 466, 467.
Of informant in criminal cases, 467, 468.
Bad character of a mother not competent for the defendant in a suit
by the son, 469.
Where the charge is upon information, 276.
Its effect on the question of probable cause, 804.
Plaintiff's character in rebuttal of the want of probable oaiiae, 804.
Reasonable inquiry as to accused, 274
Of attorneys who give advice, 814, 815.
His capability not material, 814.
Of the plaintiff, on questions of probable cause, 278. ,
CLIENTS LIABILITY FOR THE ACTS OF HIS ATTORNEY, 21St
COMMITMENTS:
Must follow the law, 79, 80.
Must contain limits of imprisonment when expressed in the law, 80.
612 AKALTTIOAL INDEX.
COMPENSATORY DAMAGES (519, 630):
ElemeDts of, 484.
Expenses reasonably incurred ; damagesi 484.
Reasonable attorney fees, 484.
Loss of time, 484.
COMPLAINT AND WARRANT:
Sufficiency of, 64.
Sufficiency of the complaint, 29, 80, 81.
Complaint stating no offense, 29.
See Pleadings, 896.
CONDITION OF PLAINTIFFS FAMILY DURING HIS IMPRISON-
MENT, 486.
CONDUCT MAY JUSTIFY A SUSPICION, 269.
CONFINEMENT IN PLACE NOT DESIGNATED AS A PRISON, 80.
CONSEQUENTIAL DAMAGES (545):
The rule in actions for malicious prosecutions, 646.
The rule in actions for false imprisonment. 546.
Attorney's fees; not consequential. 546.
Imprisonment of pregnant woman ; effect on offspring, 646.
Disposition of assets after dissolution of attainment, 648.
CONSTABLES AND POLICE OFFICERS:
Power of to arrest. 80.
CONVICTION BY MAGISTRATE:
Evidence of probable cause, 289.
CONVICTION REVERSED ON APPEAL:
Evidence of probable cause, 291, 292.
Exceptions to the rule, 292.
Conviction may be avoided, when, 291, 292.
CORPORATION LIABLE FOR FALSE IMPRISONMENT (101, 317):
Same as natural persons, 101.
In person or by agent, 101.
Corporations by agents, 101.
Natural persons, in person or by agent, 101.
Corporate liability for the acts of its agents, 101.
Railroad gatekeeper for detaining passenger, 101.
An unreasonable rule, 101.
Private corporations, 217.
Municipal corpofations, 217, 218.
The doctrine of respondeat superior ^ 218.
Officers prosecuting under void charters, 270.
Distinction between private and municipal corporations, 217, 218, 219.
Police officers not agents of municipal corporations, 219.
Liability for the acts of officers, 219.
▲NALTTIOAL Il^DEZ. 613
CORPORATION LIABLE FOR FALSE IMPRISONMENT (continued) :
Ratification of the acts of police officers by municipal oorporations,
219, 220, 221.
What acts amount to a ratification, 219, 220, 221, 222.
Private corporations, liability for the torts of its employees, 222, 22d.
Ultra vires, 223.
CORPORATIONS :
As parties, 881.
Liability for malicious prosecutions, 881.
Liability in the days of Lord Coke, 882.
Liability of a savings' bank, 883, 884.
Liability for the acts of employees, 884.
For exemplary damages, 524.
COURTS:
Inferior and superior, 148.
Distinction between, when acting within their jurisdiction, 148.
Application of the rule to all judicial officers, 148.
The doctrine stated by Chief Baron Kelly, 144.
Jurisdiction presumed and when not, 144.
What is a superior court, 145.
What is an inferior court, 146. ^
The court.
Province of the court, 281.
Where the question is for the court, 280.
Province of the jury, 281.
CREDIBILITY OF WITNESSES, 479.
CRIMINAL INFORMANTS PROTECTED (27) :
Honest belief or strong grounds of suspicion, 27, 28.
CRIMINAL LIABILITY FOR ABUSE OF PROCESS, 187.
D.
DAMAGES:
The term defined, 491.
The right of recovery, 491.
Damages in actions for malicious prosecutions, 493.
Kinds of damages, 492.
To the person by imprisonment, 492»
To the reputation by scandal, 492.
To the property by expense, 492.
General damages.
Evidence, 488.
Prima facie case entitles plaintiff to some damages, 488, 484.
Amount of damages depends upon circumstances, 484.
Anxiety of mind, 485.
Bodily and mental suffering, 484.
Condition of plaintiff's family during his imprisonment, 485.
Want of food in jail, 484.
Injury to the feelings, 485.
614 ANiXTTioix nmxx.
DAB£AGES (continued):
Oeneral damciges (continued).
Loss of employment, 485.
Malice and bad motives, etc., 485.
Shame, insult and humiliation, 484.
Aggravation of damages, 615. -
What may be shown in aggravation of damages, 616.
Malice may be shown to aggravate damages in false imprisonment,
249.
Aasesmnent of damages, 502.
Upon the trial of an issue, 603.
Upon default or demurrer, 603.
What the defendant may show, 503.
IKscretion of the jury, 504.
Under a default, evidence in justification not proper, 505.
The rule in actions for false imprisonment, 500.
Assessment jointly against all defendants, etc., 506.
Compensatory damages — Elements of, 484.
Expenses reasonably incurred, damages, 484.
Reasonable attorney fees, 484.
Loss of time, 484.
Consequential damages, 645.
The rule in actions for malicious prosecutions, 646.
The rule in actions for false imprisonment, 546.
Attorney's fees, not consequential, 546.
Imprisonment of pregnant woman, effect on offspring, 646w
Disposition of assets after dissolution of attachment, 548.
Elements of damages, 493.
In false imprisonment, 498.
Absence of malice, 493. /
In malicious prosecution, 493.
Examples, 493, 495. 496.
' Plaintiff's treatment in prison, 496.
Loss of credit, 497.
Pecuniary circumstances of the parties, 498.
Attorney's fees, 499, 500.
Traveling fees to and from court, 600.
Loss of time, 500.
Insanity and mental aberration, 500.
Mental anxiety, trouble and distress, 501.
Character of the plaintiff, 502.
Excessive damxiges, 529.
Motions for new trials for excessive damages, 529, 545.
Cases where the damages have been held to be excessive, 680, 581,
632, 533, 534.
Cases where the damages have been held not to be excessive, 534,
535, 586, 537, 588, 539, 540, 541, 542, 543, 544.
Amounts held proper and not excessive, 525, 526.
Exemplary damages, pecuniary condition of defendant, 527, 528.
The rule in some states, 529.
ANALYTICAL INDEX. 615
DAMAGES (continued):
Exempiary damages — Not given as pecuniary compensation, 620.
When proper, etc., 520, 531.
The law stated by Justice Grier, 521«
The law stated by McAllister, J., 523.
The general rule, 522.
Assessment of, by the jury, 538.
No exemplary damages where actual damages do not exist, 528.
Ck)rporations liable for exemplary damages, 524.
The right to recover does not depend upon the existence of malice,
524.
Instructions on damages^ 602.
Ck>mpen8atory damages when exemplary damages are not claimed,
608.
Exemplary damages defined, 608.
Exemplary damages in false imprisonment, 608.
Exemplary damages in malicious prosecution, 6D4.
Defendant's wealth may be considered, 604.
Good faith in mitigation of damages, 605.
Measure of damages, 548, 549.
The law stated by Greenleaf, 549, 550.
Voluntary subaiission to imprisonment under a void writ, 650.
Prosecutors ignorant of the law but acting in good faith, 551.
Mitigation of damages, 506, 507.
CircumBtances niter the case, 507.
What may be shown in mitigation, etc., 507, 608.
Motives in making a complaint, 509.
Persuasions by others, 509.
Circumstances of arrest under void warrant, 610.
Facts tending to show probable cause, 510.
Particular traits of character inadmissible unless, eta, 612.
Plaintiffs bad character, 518.
Compensatory damages not subject to mitigation, 518.
What kind of damages are subject to mitigation, 514, 616.
Absence of malice in false imprisonment, 807, 808.
Probable cause in false imprisonment, 807, 80S.
Smart money, 520.
Special damages^ Row pleaded, 410, 411.
Evidence of, 485.
DECLARATION : See Pleadings, 896.
DEFENDANTS EVIDENCE, 478. 485.
DEFENSES (429):
The term defined, 480.
The general denial,^480.
What defenses may be shown under the plea of the general issue, 480,
481.
Joint trespassers may sever in their defenses, 481.
Justification as a defense, 431, 482.
616 ANALYTICAL INDEX.
DEFENSES (oontinaed):
Justification under au erroneous judgment, 482, 43S.
Justification under illegal order of a superior officer, 483L
Officer justifying puts in issue the title to bis office, 43^
Justification for an arrest, 434.
Justification for arrest without process, 434, 435.
Duty of officer making arrest without warrant, 4361.
Waiver, as a defense — The term defined, 435.
Waiver of the right to sue, 435.
Waiver of imprisonment, 486.
What amounts to a waiver, 436.
Objections to process may be waived, etc., 487«
Release as a defense — The term defined, 488b
Release of the right to sue, 488.
What is a sufficient release, 438, 489.
Estoppel as a defense — Th^ term defined, 439.
Satisfaction as an estoppel, 489, 440.
The law stated by Miller, J., 440.
Satisfaction from one joint trespasser releases all, 440.
False representation as an estoppel, 443.
Satisfaction as an estoppel, 444
What is a satisfaction, 448.
The rule in a majority of the states, 445.
Payment, settlement, eta, by one of several joint trespaaserB, 445, 446.
The rule in the time of Lord Ck>ke, 446.
A release of one a release of all, 446, 447, 446.
DETECTIVES :
Advice of, not a defense in actions of malicious proeecutiony 823, 884.
. Competent on the question of malice, 823, 324.
Competent in mitigation of damages, 823, 824.
DETENTION:
By private person, 281, 282.
By cashier of a bank dosing doors, 281.
By militai*y officers, 282.
By army officers, 282.
By naval officers, eta, 232.
Under dead process, 188.
Under void and voidable process, 188.
Under erroneous or void orders of court, 199, 200L
Under vacated order of court, 202.
Under rescinded order of court, 203.
In the penitentiary under void sentence, 280.
Remedy against the contractor, 230.
Grounds of the remedy, 230.
DEPOT MARSHALS:
Not conservators of the peace at common law, 82.
Where they possess the power of constables at common law, 82.
Authority of, etc., 82.
AKALYTIOAL INDEX. 617
!
DEPUTIES:
Liabilities of executive officers for the acts of, 189. '
Liabilities of sheriffs for their deputies, 189, 190, 191.
The acts must be done colore officii, 191.
DISMISSAL OF SUIT:
Effect of, as an end of the prosecution, 848, 844, 845L
Not necessarily an end, 844.
DISTRESS WARRANT:
Suing out, etc., 273.
E.
EJECTMENT:
Forcible, 68.
ELEMENTS OF DAMAGES (493):
In false imprisonment, 493.
Absence of malioe, 498.
In malicious prosecution, 498.
Examples. 493, 495, 496. /
Plaintiff's treatment in prison, 496.
Loss of credit, 497,
Pecuniary circumstances of the parties, 498»
Attorney's fees, 499« 500.
Traveling fees to and from court, 500.
Loss of time, 500.
Insanity and mental aberration, 500.
Mental anxiety, trouble and distress, 601.
Character of the plaintiff, 502.
END OF THE PROSECUTION (327):
One of the elements of the plaintiff's case, 827, 828.
Plaintiff must show a sufficient ending of the prosecution complained
of, 827, 828.
The general rule governing the action for malicious prosecution, 827.*
In prosecuting civil actions, 828.
In prosecuting criminal actions, 827, 828. '
An action prematurely brought, 829.
A suit prematurely brought, 829.
What 18 an end of the prosecution, 829, 830, 881.
The law stated by Cowen, J., 830.
General discussion of the subject, 831.
The means by which the prosecution is accomplished, 882.
By a nolle prosequi, 832.
Nolle prosequi defined, 882.
In civil proceedings, 833.
In criminal proceedings, 332.
Elffect of the entry of a nolle prosequi, 882.
When it is a sufficient termination, etc., 883.
General illustrations from American cases, 383, 384, 385, 886, 837,
838, 889.
618 ANALTTIOAL INDEX.
END OF THE PROSECUTION (continued) :
What i8 an end of the prosecution (continued).
>V^hen a nolle is and when it is not 838. 884, 885, 886. 837, 888, 889.
The authorities not uniform, 388, 384, 835, 336, 837, 889.
Summary of the law, 342.
The better rule, 843.
Dismissal of a suit, 843, 344, 345.
Abandonment of the suit, 343, 344, 845.
Abandonment not necessarily an end, 344.
Failing to file complaint, 345.
Vacation of orders of court, 346.
Vacation of orders of arrest, 346, 847, 348.
Discharge on orders of court, 349.
Discharge by magistrates, 349, 350, 351*
Acquittal by magistrates, 351.
Effect of dismissal by magistrates having no jurisdiction, 351.
Discharge by magistrate, prosecutor failing to appear, 851, 852^
Discharge on preliminary examination, 853.
Discharge on habeas corpus, 358, 3'>4, 355.
Miscellaneous matters of discharge, 355.
Voluntary escape, not sufficient, 356.
By leave not to file an information, sufficient, 357.
Quashing of an indictment, 858.
When indictment found for a different offense, 358, 359.
End of the prosecution in false imprisonment, 359.
End of the prosecution in suits for the malicious use of legal
process, 360.
Distinctions between actions for false imprisonment and malicious
prosecution, 360.
General digest of American cases, 361, 363, 868, 364.
Evidence of the end of the prosecution, 453.
In criminal and civil cases, 453.
In actions for the abuse of process, 453.
In prosecutions for false imprisonment, 454
Error and mistake in probable cause, 274.
Belief induced by, 275.
Estoppel as a defense, 439.
Satisfaction as an estoppel, 489, 440.
Satisfaction from one joint trespasser, 440.
False representations, when an estoppel^ 448.
EVIDENCE:
In actions for malicious prosecution, 450.
The burden of proof, 450.
The proof, 451.
Prosecution of the plaintiff, 451.
Identification of the defendant as the prosecutor, 451.
End of the prosecution, 453.
In criminal cases, 452.
In civil cases, 452.
ANALTTIOAL IHDEX. 619
EVIDENCE (continued) :
Abuse of process, 453,
False imprisonment, 454.
Actions for malicious arrest, 476,
Want of probable cause in, 477.
Proof of damages, 477.
Advice of courutel — Evidence of, 470.
Its sufficiency as a defense, 471.
A question for the jury, 471, 472.
Character — Presumption ofi 465.
Plaintiff may prove it affirmatively, 46S.
Particular instances, etc. ; incompetent, 465.
The law stated by Taylor, J., 466, 467.
Character of informant in criminal cases, 467, 468.
Bad character of mother not competent for the defendant in a
suit by son, 469.
Magistrates:
Evidence in actions against magistrates, 474.
Testimony on a preliminary examination competent, 474.
Magistrates bound by the records they keep, 474, 475.
Matters outside the record inadmissible, 475.
Papers, etc., should be produced, 4T5.
Malice — Evidence of, 473.
Malice and want of probable cause must concur; eviden e of, 473.
Malice and want of probable cause — Evidence of, 456.
Maliciously instituting the prosecution, 456.
Malice, how proved, 457.
Not inferred from the discharge by the magistrate, 457.
Maliciously suing out a peace warrant, 458, 569.
Probable cause and malice ; evidence of, 460.
T?ie want of probable cause, 460-462, 464.
Pleadings in former suits between the parties, 462.
Letters and account books, 462-464.
Entries of public prosecutors, 464.
Conviction before a justice, 284, 285.
Verdict of guilty. 285, 286.
Verdict of set-off in a civil suit, 286.
Verdict of guilty in a criminal suit, 286.
Conviction before justice on trial, 287.
Collateral judgment, 287, 288.
Evidence of the want of probable cause, 282, 284-288.
Conviction before a justice, 284, 285.
Verdict of guilty founded on correct instructions, 285, 286.
Verdict for a set-off in a civil suit, 286.
Verdict of guilty in a criminal prosecution, 286. .
Conviction before a justice of the peace, 287.
Conviction on trial before justice, 287.
Collateral judgment, 287, 288.
The record as evidence of acquittals and convictions, 454.
620 ANALYTICAL INDEX.
EVIDENCE (continued):
The want of probable cause (continued).
(contents of lost records may be shown by parol* 454
Loss of the complaint before the magistrate, 465.
Matters not appearing in the record, 455.
Weight of the testimony. 479.
A question for the jury, 480.
Credibility of witnesses, 480.
EVIDENCE IN ACTIONS OF FALSE IMPRISONMENT (480, 481):
Burden of proof upon the plaintiff, 481, 482.
The plaintiff must show the imprisonment to have been false, when.
481.
Irregularities and informalities in process and proceedings, 482.
Burden of showing want of reasonable cause, 483.
The rule stated, 483.
Malice in actions for false imprisonment, 488.
Evidence on the part of the defendant, 478y
Evidence admissible under the general issue, 478, 479.
Matters not relevant to the issue, 479.
EXCESSIVE DAMAGES (529):
Motions for new trials for excessive damages, 529, 545.
Cases where the damages have been held to be excessive, 530, 581, 582,
583, 534.
Cases where the damages have been held not to be excessive, 534^ ''35,
536, 537, 538, 539, 540, 641, 642, 543, 544.
EXECUTION UPON VOID JUDGMENT, 215.
EXECUTORS :
As parties, see Parties, 893, 394.
EXEMPLARY DAMAGES:
Not given as pecuniary compensation, 620.
When proper, etc., 520, 521.
The law stated by Justice Grier, 521.
The law stated by McAllister, J., 522.
The general rule, 522.
Assessment of, by the jury, 523.
No exemplary damages where actual damages do not exist, 628.
Corporations liable for exemplary damages, 524. .
The right to recover does not depend upon the existence of malice, 524.
F.
FALSE IMPRISONMENT:
Defined by Blackstone, 56.
Defined by Pollock, 57.
What necessary to sustain action for false imprisonment^ 91*
Form of the action for false imprisonment, 88.
The common«Iaw action of trespass, 88.
Where the action lies, 89,
ANALTTIOAL INDEX. 621
FALSE IMPRISONMENT (continued):
Immunity to judicial oflficers, 89.
Proceeding without jurisdiction; 89.
Irregular proceedings, 89, 90.
AbuHe of process, 90.
Proceeding without process, 90.
What is necessafy to sustain the charge, 91.
Mistake of the justice, 91.
Party not responsible .for the acts of the justice, when, 91.
Liability of prosecutor, justice and constable, 92,
Void proceedings, 92.
Effect of probable cause, 807, 808.
Malice in, 807, 808.
Probable cause and want of malice may be shown in mitigation of
damages, 807, 808.
Liability for false imprisonmeni, 100.
The general rule, 100.
Party liable, when, 100.
For directing, assisting and encouraging an officer, 100,
Directing the service of void process, 100.
Malice in, 249.
May be shown to enhance damages, 249.
Absence of, may be shown to mitigate damages, 249.
FALSE RETURN:
Liability of attorney and plaintiff, 216.
FELONIES AND MISDEMEANORS (288):
Felonies at commoii law, 288.
Statutory felonies, 284, 235.
Distinction between felonies and misdemeanoxB, 284^ 285.
Statutory classification, 285.
FORCIBLE EJECTMENT, 68.
FORMER RECOVERY:
Pleas of, 424.
FUGITIVE FROM JUSTICE (88):
When he may be arrested, 86.
Mode of proceeding against, 86b ,
G.
GENERAL DAMAGES:
Evidence, 483.
Prima facie case entitles plaintiff to some damages, 488» 484i
Amount of damages depends upon circumstances, 484k
GENERAL DENIAL:
What may be shown under, 486, 487.
GIST OF THE ACTION :
For malicious prosecution^ 272.
i
622 ANALYTICAL INDIBX.
GOOD FAITH:
In prosecutor, 269, 809 et 8eq.
Advice as evidence of, 828, 824.
Independent of legal advice, 825.
GUARDIAN AND WARD (111):
Guardian's right to restrain his ward. 111*
The right of chastisement limited. 111.
4
H.
HABEAS CORPUS:
Discharge on as an end of the prosecution, 858, 854^ 85(L
HANDCUFFS:
Use of in making arrests, etc., 72.
HUSBAND AND WIFE (888) :
Liability at common law, 888.
Under statutes, 890, 891.
L
IDEM S0NAN8:
The doctrine of, 172.
Arrest of the wrong person by the right name, 172.
Arrest of the right person by the wrong name, 172.
Illustrations ; Griswold's Case, 178.
INCITING AN OFFICER:
To arrest on a void writ, 210, 211.
INDICTMENT:
Sufficiency of as a basis for a suit for malicions prosecution, 20, 80, 81.
IMPRISONMENT (57) :
What is a sufficient imprisonment, 62.
Applications of the law, 62, 68, 64, 65, 66.
Imprisonment; what is not, 65.
Submitting to detention under a misapprehension of the law, 05.
Officer carried away to sea, 66.
Of infant: assent immaterial, 62.
By forcible ejectment, 68.
Want of food in jail, 484.
INFANTS:
Liability for imprisonments, etc., 106.
Litibility in civil actions for his torts, 106.
No defense to an action for personal injuries, 106.
Infants liable the same as adults, 106.
Infancy a shield, not a defense, 106.
Liability of infant for procuring another to commit a personal Injory,
106.
Liability by ratification, 106.
The rule on the authority of Lord Coke, 106.
ANALYTICAL INDBX. 623
INFANTS (continued):
Cannot maintain a civil suit against a parent for false imprisonment^
110.
Arrest and imprisonment of, 62S,
Assent immaterial, 03.
Liability of, eta, 89i;
INFANT'S LIABILITY:
Ratification, 602.
INJURY TO THE FEEUNGS (485):
Anxiety of mind, 485.
INSANE, CONFINEMENT OF:
Legal adjudications not essential in 'every instance, 117.
Public investigations not always satisfactory, 118.
Difficulties in proceeding without judicial inquiry, 118, 119.
Elffect of a judicial inquiry, 119.
The law has but one test of insanity, ISO.
Confinement of Mrs. Newcomer at Kalamazoo, 120.
Consent or actual insanity necessary, 120, 121.
Liability for apprehending a lunatic without legal process, 121.
The right to apprehend insane persons under legal process, 122.
Restraint of insane persons, 122.
Trial by jury necessary ; Illinois, 12d.
Difficulties in the way of legislation on this subject, 128.
The defense of insanity a fraud; the popular belief, 128.
The remedy of persons confined as lunatics, 124.
The remedy by habeas corpus confined to what cases, 124.
Statutory remedies by habeas corpus, 125.
INSANE PERSONS:
May be restrained, see Keepbbs of Charitable Institutions, 114.
Liability for restraining after restoration to reason, 115, lid.
INSTRUCTING THE JURY (567):
Instruc lions and requests for instructions, 567.
Instructions should be clear and concise, 568.
Instructions in actions for malicious prosecution, 569.
An oral charge in the federal court, 569.
The jury to decide all questions of fact from the evidence, 569.
The termination of the prosecution, 570.
Duty of all to ferret out and punish crime, 570.
Reasonable and probable cause, 571.
The question of malice, 573.
Advice of counsel, 574.
Continuation of prosecution after knowledge of defendant's innocence^
675.
Written instructions in an action for mallciouB prosecution, 577.
(1) Forptaintiff, 57a
Advice of counsel, 578.
Material facts to be communicated to counsel, 578.
Violation of rules renders them inoperative, 578.
624 ANALYTICAL INDBX.
INSTRUCTING THE JURY (continued) :
Written instructions'^ For plaintiff (continued).
What facts must be laid before oounsei, 578.
Character of evidence oonstitotes probable cause, 679.
Facts showing no probable cause, 679.
Exemplary damages; charge maliciously made, 579.
Advice of counsel must be sought in good faith, 679.
Instituting a prosecution forms a fixed determination, 579.
Jury not confined to actual damages, 580l
(2) Far defendant, 580.
Probable cause, 580.
Advice of counsel, 580.
Testimony before magistrate on probable cause, 580l
What the plaintiff must show, 580, 581.
The burden of proof, 581.
Probable cause when the facts are disputed, 581.
Probable cause defined, 582.
Advice of counsel, 582.
Form of the verdict, 582.
On the question of advice of counsd, 594
The doctrine in Iowa, 594.
The doctrine by Billiard and Wait, 594.
Advice by counsel mistaken in the law, 594.
On damages^ 602.
Compensatory damages when exemplary damages are notdaiined,
603.
Exemplary damages defined, 608. ^
Exemplai'y damages in false imprisonment, 608.
Exemplary damages, malicious prosecution, 604.
Defendant's wealth may be considered, 604.
Gkxxi faith in mitigation of damages, 605.
On the question of malice^ 582, 583.
Malice defined, 582.
Malice may be inferred from the want of probable cause, 588.
Defendant's instruction on malice ; bUrden of proof under the gen*
eral issue, 583.
Doing a wrongful act to obtain a lawful end, 584
On tJie want of probable cause^ 585.
The want of it must appear from the evidence^ OSS.
What is want of probable cause, 585.
The but den of proof, 585.
An honest belief in the plaij)tiff*s guilt, 566^
Prosecutor's guilt, 585.
The true inquiry, 586.
Reasonable grounds of suspicion, 586.
Good character on the question of probable cause, 586b
Malice and want of probable cause must concur, 587.
Existence of facts a question for the jury, 587, 588.
Facts constituting probable cause, 588.
ANALTTIOAL INDBZ. 625
INSTRUCTING THE JURY (continued) :
On the leant of probable eaiue (continued).
Facts not constituting probable cause, 589.
Reasonable inquiry as to facts, 590.
Allowance to be made for injury done to prosecutor, 690, 591.
Possession of stolen property as probable cause, 691, 692.
Accessory to arson, 59)3, 598.
Facts to be considered on the question of reasonable cause, 698.
INSTRUCTIONS IN FALSE IMPRISONMENT (595):
The term defined, 595.
What is an arrest, 595.
Duress and threats, 596.
Upon what the defendant must act, 590, 697.
Estoppel by plaintifiTs false representations, 597.
Persons assisting officers, 597, 598.
Suffering a convicted person to go at large and afterwards arresting
him, 59a
Void warrant, in mitigation of damages, 598.
Arbitrary arrest; joint liability, 599.
Duty of officer making an arrest, 600.
Joint and several liability, 001.
When not liable as a joint trespasser, 601.
Who are liable as joint trespassers, 601.
INTERRUPTION OF BUSINESS, 484.
J.
JAILERS:
Detention by, 229, 280, 281. ^
JOINDER OF ACTIONS (367):
Joinder of plaintiffs, 866, 867.
Joinder of defendants, 867, 868.
JOINDER OP PARTIES:
Joint and several liability, 870, 871.
A wrong the several act of all concerned, 87L
Joint actions for joint injuries, 871, 872.
Joint liability a question for the jury, 871, 879L
Joint criminal liability, 874.
Measure of joint liability, 874
Under void warrants, 878, 879.
Contribution among joint defendants, 880l
JUDGES OF INFERIOR COURTS:
Jurisdiction wrongfully assumed, 150.
The doctrine laid down by Meachem, 150.
Reasons stated for the rule by Cooley, 150.
Distinction between judges of inferior and superior courts, 160^ 161«
A better rule stated by Beasley, C. J., 15 !•
Baboock*s Case; application of the better rule» 162.
40
G26 ANALTTIOAL INDEX*
JUDGES OF INFERIOR COURTS (continued):
Jurisdiction under void statutes, 1S5.
Liability when acting in ^|ood faith, 155.
The severity of the rule; unfavorable oomment, 15S.
A contrary doctrine ; Henke's Case, 165w
JUDGES OF SUPERIOR COURTS (126):
Liability of judges of superior courts, 126.
Excess of jurisdiction and want of jurisdiction, 126.
Usurpation of jurisdiction by judge of superior court, 126b
JUDGMENT;
Obtained by ex parte not conclusive evidence, etc., 802^ 808.
JUDGMENT OF JUSTICE OF THE PEACE:
Evident e of probable cause, 253, 254
Reversed; when conclusive, etc., 258, 254.
JUDICIAL UABILITY :
Reasons for the rule stated by Field, J., 141,
JUDICIAL OFFICER, 125.
The term defined, 125.
Who is a giia«t- judicial officer, 125.
The rule of liability of judicial officers, 125.
Proceedings coram nonjudice, 125.
Acts done in excess of jurisdiction, 125.
Acts done in the absence of jurisdiction, 125.
CJourts of inferior and superior jurisdiction, 125.
Judicial officer acting ministerially, 157.
Liability the same as other officers when so acting, 1G7«
Judicial character affords them no protection, 157.
Liability of justice acting ministerially, 157.
The rule of immunity stated by Shaw, J., 137.
The officer must act in his judicial capacity, 188.
The mayor of Danville, Va., 189.
Judge Benedict's Case, 126, 127, 128, 129, 180, 181, 181^ 188.
Discussion of the subject, 126.
No liability for errors in judgment, 181.
The authorities reviewed, 126, 188.
Liabilities of judges of inferior courts, 184
When acting without jurisdiction, 184.
Not liable for errors of judgment, when, 184.
When liable for errors of judgment, 134.
Distinction between judges of inferior and superior oonrt% 184
Test for determining the liability, 184, 185.
Magistrate acting beyond his jurisdiction, 185.
Test of liability, Ua
Special and limited jurisdiction, 148.
Neall's Case, Pennsylvania, 149.
The officer must act within his jurisdiction, 140.
Immunity not affected by improper motives, 140.
ANALYTIOAL INDBX. 627
JURISDICTION DEFINED (143):
Of the person, 142.
Of the subject-matter, 142.
What jurisdiction is essential to immmii^, 143.
Jurisdiction must be legally acquired, 142.
Distinction between superior and inferior oourts, 1439 ^^ 1^
Jurisdiction wrongfully assumed, 158.
Jurisdiction assumed through mistake, 153.
Illustration of the law, 163.
• When presumed, inferior and superior courts, 144, 145, 146L
JUBY:
The province of, 278, 281.
Disagreement of, evidence of probable cause, 290, 29K
Charging the jury y 567. '
Instructions and requests for instructions, 567.
The charge should be clear and concise, 568.
The charge in actions for malicious prosecution, 569.
An oral charge in the federal court, 569.
The jury to decide all questions of fact from the evidence, 669.
The termination of the prosecution, 670.
Duty of all to ferret out and punish crime, 570.
Beasonable and probable cause, 571.
The question of malice, 573.
Advice of counsel, 674.
Continuation of prosecution after knowledge of defendant's inno-
cence, 575.
Written charges in an action for malicious prosecution, 677.
(1) For plaintiff, 578.
Advice of counsel, 678.
Material facts to be communicated to counsel, 678.
Violation of rules renders them inoperative, 678.
What facts must be laid before counsel, 578.
Character as evidence on the question of probable cause, 579.
What acts do not constitute probable cause, 679.
Facts showing no probable cause, 579.
Exemplary damages, charge maliciously made, 579.
Advice of counsel must be sought in good faith, 679.
Instituting prosecution forms a fixed determination, 679.
Jury not confined to actual damages, 580*
(2) For the defendant, 580.
Probable cause, 580.
Advice of counsel, 580.
Testimony before the magistrate on the qnestion of probable
cause, 580.
What the plaintiff must show, 580.
The burden of proof, 581.
Probable cause when the facts are dlspnted, 681«
Probable cause defined, 582.
Advice of counsel, 682.
Form of the verdict for the defendant 682.
628 XSA^YTlQAh nfDBX.
JUKT (confeinaed):
On advice of courud, 594.
The doctrine in Iowa, 694.
The doctrine by Hiiliard and Wait, S94
Advice by oounael mistaken in the law, 694
In falae imprisonment, 695.
The term defined, 595.
What is an arrest, 595.
Duress and threats, 698.
Upon what the defendant must act, 596, 597.
Estoppel by plaintiflTs false representations, 597.
Persons assisting oflScers, 597, 598.
Suffering a convicted person to go at large and afterwards Mrest-
ing him, 598.
Void warrant; mitigation of damages, 598.
Arbitrary arrest; joint liability, 599.
Duty of officer making an arrest, 600.
Joint and several liability, 601.
When not liable as a joint trespasser, 601.
Who are liable as joint trespassers, 601.
On malice, 582, 583.
Malice defined, 582.
Malice may be inferred from the want of probable cause, 588.
Defendant's instruction on malice; burden of proof under ths
general issue^ 583.
Doing a wrongful act to obtain a lawful end, 584.
On the UHint of probable catise, 585.
The want of it must appear from the evidence, 586.
What is want of probable cause, 585.
The burden of proof, 585.
An honest belief in the plaintiff's guilt, 585.
Prosecutor's guilt, 585.
The true inquiry, 586.
Reasonable grounds of suspicion, 586.
Gkxxl character on the question of probable cause, 68ib
Malice and want of probable cause must concur, 587.
Existence of facts a question for the jury, 587, 588.
Facts constituting probable cause, 588, 589.
Facts not constituting probable cause, 569.
Reasonable inquiry as to facts, 590.
Allowance to be made for injury done to prosecutor, 590, 591.
Possession of stolen property as probable cause, 591, 592.
AocesBory to arson, 592, 593.
Facts to be considered on the question of reasonable caoae, 698L
Probable cause, 580.
Advice of counsel, 580.
Testimony before magistrate on probable cause, 580.
What the plaintiff must show, 580, 581.
The burden of proof, 581.
AKALYTIOAL INDEZ. 6^
JXJBY (continued):
On the want ofpt*ohaJtHe catue (continued).
Probable cause when the facts are disputed, 681«
Probable cause defined, 5S2.
Advice of counsel, 583.
Form of the verdict, 682.
JURY AND ITS FINDINGS (552):
A verdict defined, 652.
Different kinds of verdicts, 652.
Greneral verdicts, 652.
Special verdicts, 552.
Rules of law as to special verdicts, 653i
Special findings, 554.
Statutory provisions, 554, 555.
Material questions of fact to be submitted, 556.
Special findings inconsistent with the general verdict, 666^ 557, 658.
The degree of inconsistency defined, 559.
Practice where inconsistency exists, 559, 560.
Special findings in actions for malicious prosecutions, 500L
Forms of special submissions, 561.
Forms of special findings, 562.
Submissions for special findings, 563.
Special findings control the general verdict, 564, 566.
JUSTICES:
Acting judicially, 168.
Liable for abuse of process, 168,
JUSTICE OF THE PEACE:
Advice not a defense in actions for malicious prosecution, 816f 816,
Competent on questions of malice, 828, 824.
In mitigation of damages, 828, 824.
JUSTICE ACTING MINISTERIALLY (157):
When acting as agent for plaintiff, 157.
Percival's Case (N. Y., 1800), 167, 158.
Acting in good faith, not liable for ministerial acts, 168, 169*
Rogers' Case, 158, 159.
The law stated by Ames, J., 169.
When acting from corrupt motives, 160.
Party not liable for justice's act, 160.
Taylor*s Case, 160.
Issuing mitiimiia after suffering the defendant to go at liberty for a
year, 161.
JUSTICES OF THE PEACE:
Jurisdiction of, 146.
When not liable for acting without jurisdiction, 147.
Common-law protection, 147.
Acts done colore officii, 148.
680 ANALTTIOAL INDBX.
JUSTIFICATION:
Pleas of, 417.
Son asaatUt dememe, 417.
MoUiter mantis imposuitt 417.
Opening and close, under pleas of justification, 418.
Former recovery, 418.
In actions for malicious prosecution and false imprisonment^ 431, 432.
Justification under erroneous judgments, 482, 488.
Justification under illegal orders of superior officer, 483.
Officer justifying puts in issue the title to his office, 433.
Justification for an arrest, 434.
Justification for arrests without warrant, 434, 485.
K.
KEEPERS OF CHARITABLE INSTITUTIONS (114):
Confinement of lunatics, 114.
(1) Without a judicial inquiry, 114
The keeper acts at his peril, 114.
The law stated by Cooley, 115.
Illustrations by analogy, 115.
Liability of keeper for a mistake, 115.
Purity of motive in mitigation of damages, 115.
Keepers of charitable institutions, 116.
An illustration by Chapman, J., 116.
Unauthorized detention of harmless lunatics, 116.
The keeper as a judicial officer, 115.
(2) Under judicial determination.
Legal adjudication not necessary in every case, 117.
A public investigation not a satisfactory test, 118.
Difficulties of proceediug without a judicial inquiry, 118.
Effect of a judicial inquiry, 119.
Confinement without judicial inquiry, 120.
Liability for apprehending lunatic without process, 121.
The right to apprehend lunatics under legal adjudication,
122.
The law stated by Cooley, 122.
Persons confined as lunatics; the remedy by Jiabeaa oorpuB,
124. .
Trial by jury necessary, etc., 122, 128.
L.
LAW AND FACT:
Probable cause a mixed question of, 276.
LIABILITY FOR FALSE IMPRISONMENT (109):
Statement of the general rule, 109.
Parents and persons in loco parentis, 109.
Parents liable to criminal prosecution only, 109, 110.
ANALYTICAL INDEX. 631
UABIUTY FOR FALSE IMPRISONMENT (continued) :
Infant cannot maintain civil suit against his parent, 109, 110.
No liability for doing what the officer had a legal right to do, 109.
The law stated by Campbell, a J., 108.
Procuring a ne exeat upon insufficient affidavit, 103*
Liability of third persons for assisting officer, 100.
LIMITATIONS:
Statute of ; pleas, 419.
Replication to plea of, 427.
LOSS OF EMPLOYMENT, 485.
LUNATICS:
'Restraint of, see Kbepebs of Charitablb Institutions, 114-117.
M.
MAGISTRATES:
Magistrate acting without jurisdiction, 184.
Where he becomes a trespasser, 185.
Not liable for acts within their jurisdiction, 185, 189.
The law stated by Judge Cooley, 185.
The general rule of law, 135, 136.
Discussion of the subject, 186.
Reasons for the rule, 186, 137.
Judges of courts, immunity from liability, 187.
Power to imprison for breach of city and village laws, 79L
Cannot designate tl;ie place of imprisonment, 80.
MALICE:
Defined, 286, 287.
Malice as a term of law, 287.
Necessary ingredients of malice, 287.
The law implies malice when, 287, 238, 289.
Express malice defined, 239.
Malice in law, 289.
Distinction between malice in law and malice in fact, 289, 8401
Consequences of the distinction, 289, 240.
Evidence of malice, 240.
Declarations of ill-will, 241.
Defendant may testify as ito his intent or motive, 242, 248.
Good faith and honest belief of the defendant, 242, 248^ 244.
Multiplicity of suits evidence of malice, 244, 245.
Undue publicity of arrests, 245, 246.
Publishing accounts in newspapers, 245, 246.
Malice and want of probable cause must exist concurrently in actions
for malicious prosecutions, 246.
Malice may be inferred from the want of probable cause, 20, 247, 265,
282.
Its existence a question for the jury, 248.
Malice in actions of malicious prosecution, 248.
632 ANALYTICAL INDEX.
MALICE (continued):
In actions of false imprisonment, 249.
Malioe in actions for prosecuting suits in the names of third persons, 26.
Prosecuting suits in the names of third persons without authority, 26.
Advice of person not an attorney competent on, when, 323, 824.
Evidence of malioe, 478.
Malice and want of probable cause, evidence must concur, 473.
Express malioe to be averred and proved in actions for maJickwidy
prosecuting a civil suit, 89.
Malice and bad motives, 485.
MALICIOUS PROSECUTION:*
Nature of the wrong, 8.
Action at common law, 8.
When the action lies, 86.
History of the action, 5.
Action defined, 6.
Foundation of the action, 7.
Malicious use and abuse of process, 7«
Where the action lies, 10.
Institution of Che suit without probable cause, 19.
Malice in the institution of the suit, 10.
Termination of the suit, 10.
The want of probable cause illustrated, 10, 11, 12.
Malioe an essential element, 18.
Will not lie for merely preferring an accusation, 14, 15^ 16b
Malice in this connection, 16.
Evidence of malioe, 17.
Sufficient if the action is begun with malice, 17.
Applications of the law, 18, 19, 20.
Acquittal of the plaintiff, 18.
Will the action lie for prosecuting a civil suit, 82, 83.
The doctrine discussed, 82, 88, 84.
Distinction between actions for criminal prosecatiooi MxA oiTil
suits, 85.
The doctrine that the action lies discussed, 85, 86.
Grounds upon which the right is placed, 86, 87.
The doctrine affirmed in California, 88.
Rules governing the action, 89.
Arrest and holding to bail not indispensably necessary, 8lL '
Express malice to be averred and proved, 89.
Applications of the law, 89.
The contrary doctrine as stated in Iowa, 42.
The doctrine illustrated. 48, 44, 45, 46, 47, 48, 49, 60.
The contrary doctrine illustrated, 50. 51.
Attorneys personally liable when, 28, 24.
Applications of the law, 24.
Malice of the client, 25.
The action regarded with jealousy, 21.
The action not favored in law, 21.
AKALTTICAL INDBZ. 633
MALICIOUS PROSECUTION (continued):
To be carefully guarded and its true principles strictly adhered to, 21.
Rights of persons to institute civil or criminal suits, 22.
In bankruptcy proceedings, 22.
Maliciously suing out an attachment without probable cause, 21, 62.
Malice and want of probable cause, 265.
Sufficiency of facts to justify an arrest, 265, 266, 267.
Malice and want of probable cause ; evidence of, 456.
Malice how proved, 457.
Malice and want of probable cause must concur, 265.
Malice may be inferred from want of probable cause, 20, 265, 282, 288.
MASTER AND APPRENTICE (111):
The relation depends on statutory enactments. 111.
Master^s power of restraint not definitely settled by law, 111.
MASTER AND SERVANT:
Relation of. 892.
Liability of master, etc., 893.
MASTERS OF VESSELS AT SEA (118, 114):
Liability for acts of discipline on the high seas, 113.
When the master's authority becomes a duty, 118,
The law stated by Thompson, C. J., 114.
The law stated by Abbott, 114.
MATTERS NOT RELEVANT TO THE ISSUE, 479.
BIAYOR:
A judicial officer, 188.
MEASURE OF DAMAGES (548. 549):
The law stated by Oreenleaf, 549, 550.
Voluntary submission to imprisonment under a void writ, 650.
Prosecutors ignorant of the law, but acting in good faith, 551.
MINOR:
May be appointed to make an arrest, 82.
MISDEMEANORS:
At common la^, 234.
■ Under statutes, 284, 285.
SUtute of Illinois, 285.
Iowa, 285.
MISNOMER (77):
Officer must arrest the right person, 77. »
Except in case of final process, 77, 78b
See Pabties, 894.
MISTAKE:
Jurisdiction assumed by, 153.
The law illustrated, 158.
Clarke's Case, 158, 154.
Vaughn's Case, 155.
634 ANALYTICAL INDBZ.
MITIGATION OF DAMAGES (506. 607):
Circumstances alter the case, 607.
What may be shown in mitigation, etc., 507, 508.
Motives in making a complaint, 509.
Persuasions by others, 509.
Circumstances of arrest under void warrant, 610.
Facts tending to show probable cause, 610.
Particular traits of character inadmissible unless, etc., 613.
PlaintifTs bad character, 618.
Compensatory damages not subject to mitigation, 618.
What kind of damages are subject to mitigation, 614, 616.
MITTIMUS:
Issued after a year, etc., 161.
Justice's liability for issuing process without authority of par^ in in-
terest, 162.
MUNICIPAL CORPORATIONS:
Liability, 887.
Prosecution of offenders by, 886.
N.
NE EXEAT:
Issued upon an insufficient affidavit, 108.
NEGUGENCE:
As affecting probable cause, 274.
NIGHT-WALKERS (78, 79):
Night-walker defined, 78.
Discussion of the subject, 78.
Probable cause for the arrest of, 79.
NOLLE PROSEQUI DEFINED (832):
In civil proceedings, 882.
In criminal proceedings, 882.
Effect ot 88a
When it is an end and when it is not, 888, 884, 886, 886, 887, 888, 889.
Authorities not uniform, 883, 884, 886, 886, 887, 888, 889.
Summary of the law, 842.
The better rule, 848.
NOMINAL DAMAGES (616):
Discussion of the subject, 616.
o.
OFFICER :
Liability of in performing lawful act, 108.
No liability in employing officer to perform a lawful act, 108.
Presumption that the officer knows his duty and will perform it, 108.
Not required to examine into extrinsic matters, 175.
Not bound to go behind his process, 175.
ANALYTICAL INDBX. 635
OFFICER (continued):
Not bouDd to look beyond the writ, 169.
May judtify under void process, if regular, 169.
Illustrations of the rule, 169.
Protection afforded by a writ regular on its face and issued by a court
of competent jnrisdiction, 176.
O^Sbaughnessy's Case, 176.
Test to determine liability, 148.
An officer derives his authority from the writ, 173.
Liability for taking prisoner out of the juriBdiction, 188.
Acts done colore offlcii, 148.
Arrests by, with process, 167.
without process, 167.
Ordering an officer to refuse bail, 100.
ORDINANCES:
Arrests under, 79.
P.
PARENTS:
Liable for excess of punishment, 110.
What is an excess a question for the jury, 110.
PARTIES:
Who are proper parties, 866.
Plaintiffa.
Who may sue, 866.
The rule at common law, 866.
Defendants,
The geAeral rule, 867, 868.
Who may be sued jointly, 867, 868.
Defendants in actions for malicious prosecutions, 868.
Defendants in actions for false imprisonment, 868.
Joinder of defendants, 868, 869.
Personal torts die with the person, 866.
Death of defendant, 869.
Right of survivorship, 870.
Joint and several liability, 370, 871.
Torts the several act of all concerned, 871.
Joint action for a joint injury, 871.
Joint liability, a question for jury, 871, 873.
Instructions, province of the jury, 372, 878.
Joint criminal liability, 874.
Extent of joint liability, 874.
Liability of different officers. 374, a75. 876, 877, 878.
Joint liability under void warrant, 878, 879.
Complainant liable for the acts of the justice, 879.
No contribution between wrong-doers. 883.
Attorneys and clients as parties, 880, 881»
Corporations as parties, 881.
636 AHALTTIOAL INDBZ.
PARTIES (continued):
Defenses (continued).
Corporations liable for malicious prosecutions, 881.
The doctrine in the days of Coke and Blaokstone, 889.
The doctrine obsolete, 888.
Savings bank liable for malicious prosecution, 883» 884*
Corporate liability for the acts of employees, 884.
Railroad liability, 885.
Arresting passenger for non-payment of fare, 868.
Municipal oorporations, as parties, 887.
Liability for tortious acts, 887, 888.
Prosecution of criminal offenders not ultra vires, 888b
Husband and wife^ 888.
The rule at common law, 888.
As plaintiffs, 888, 889.
As defendants, 890.
Under statutes, 890, 891.
Infants as parties, 391.
As plaintiffs, 891.
Liability of infants for malicious prosecution, 891.
As defendants, 891.
Master and servant, tts parties, 893.
Liability of master for the acts of the servant, 893.
Partners as parties, 898.
What concurrence will render both liable, 898.
Personal representatives as parties, 393, 894.
One of several joint parties dying, 898.
For a mere personal wrong, 894.
PARTNERS (see Parties, 893):
Rule of liability, 225.
Liability for the torts of individual partners, 325.
Application of the principles of the law of agency, 82S»
The law stated by Craig, J., 226.
Illustrations, 226, 227, 228, 229.
Principal and agent, 225, 226.
Ratification by principal, 229.
PARTY EMPLOYING OFFICERS:
For lawful purposes, 105.
The law stated by Campbell, C. J., 1081
PATROLMEN:
Powers of, 82.
PERSONAL LIBERTY, RIGHT OF (58):
Exceptions, 58.
Right to restrain insane persons, 68, 611,
Persons doing mischief, 58.
Disturbing a congregation, 58.
Fighting, 58.
ANALYTICAL IKDBX. 637
PERSONAL LIBERTY, RIGHT OF (continued);
Sick and helpless persons, 58.
Unconsciously going into danger, 58.
Intoxicated, 58.
Afflicted with delirium tremens, 58.
PERSONAL REPRESENTATIVES (see Parties, 898):
Death of joint party, 898.
Survival of actions, 894.
PERSONS DIRECTING THE EXECUTION OF LEGAL PROCESS (308) :
The rule of liability' stated by Bigelow, J., 208« 209.
PERSONS DIRECTING THE ATTENTION OF AN OFFICER TO A
VIOLATION OF THE LAW, 211.
PLACING HANDCUFFS ON A PARTY INTERFERING WITH OFFI-
CER (103):
Officer liable and not the party employing him, 103.
The law stated by Barrows, J., 104.
Liability of party for acts of officer not committed by his orders, aUop-
tion or assent, 104*
PLAINTIFFS (see Parties, 866) :
Death of plaintiff, 869.
The common-law rule changed by statute, 869.
Joinder of plaintiffs, 366, 867.
What actions may be joined, 867.
Plaintiff in execution of void writ, 216.
PLEADINGS:
~ In actions for malicious prosecutions and false imprisonment, 896.
Pleadings defined, 896.
The declaration or complaint, 896.
Pleas and answers, 896.
Replications, 896.
Pleadings under codes. 896, 897.
Complaint for malicious prosecution, 897.
What must be stated, 897.
Precedent; in malicious prosecution, 897.
Petition under the law of Kansas, 898.
Modifications of tiie common law, 898.
Statement of the claim defined, 899.
The declaration at common law, its form and parts, 899.
The subject illustrated, 899.
Analysis of the common-law form, 400, 401, 402, 408» 404
Complaint for an abuse of legal process, 404.
Pleading dama>(es, 410.
Special damages, 410.
The law stated by Chitty, 410.
The law stated by Greenleaf, 410.
Damages must be specially pleaded, 411*
Loss of boarders, 411.
638 ANALYTICAL IKDEZ.
PIiEADINGS (continued):
Bad condition of prison and poor food, 411, 413»
Same insufficiently stated in the complaint, 412.
Plaintiff's pleadings in actions for false imprisonment, 41S.
Complaint for false imprisonment, 416.
Pet'tion for false imprisonment, 416.
Defendant's pleadings in actions for false imprisonment^ 416, 417.
Pleas of justification, 417, 418.
Opening and close under, 418.
Pleading separately a question of policy, 418.
Joint and several pleas ; the general rule, 418.
PLEAS: See Pleadings, 896.
POLICE OFFICERS:
Advice of not a defense in actions for malicions proeecutions, 8S8, 824.
Competent on questions of malice, 828, 824.
Competent in mitigation of damages, 828, 824
POSSE COMITATUS (86):
Persons^joining protected same as the officer, 85, 86.
Distinction between civil and criminal case, 86.
When not protected, unless the officer can justify, 86.
PRECEDENTS OF PLEAS:
The general issue, 419.
Statute of limitations, 419.
Pleas of justification, 419.
Under final process, 419.
On suspicion of felony without process, 42(^
Under mesne process, 421.
Other pleas, 422.
Moll iter mamis imposuit; to preserve the peace, 428.
Molliter manus imposuit; plaintiff made an assault on a third person,
428.
Correction of an apprentice, 428.
Satisfaction, 424.
Satisfaction by one joint trespasser, 424.
Former recovery, 424.
Release, 425.
Tender of amends, 425.
Plaintiff's pleas after the defendant has answered, 486.
Replications, 426.
Precedents, 427.
Under the New York code, 427.
An American common-law form, 427.
. To the plea of the statute of limitations, 427.
Defendant absent from the state, 427.
Amends tendered were not sufficient* 427.
Precedent of the statement of the claim for special damages, 414
ANALYTICAL INDEX. 639
PRINCIPAL AND AGENT AS PARTIES (see PARToa, 894):
Tortious acts committed by agent, 894.
Ratification by the principal, 894.
The rule respondeat superior, 894
PRISON:
What is. 57.
Boundaries of, 57.
Magistrate cannot designate, 80.
Place of confinement must be fixed by law, 80L
PRISON-KEEPERS:
Detention by, 229, 280, 281.
PRISONER:
Treatment of by ofScera, 72.
PRIVATE CORPORATIONS:
The general rule of liability, 228.
PRIVATE PERSONS:
Assisting officers, 85, 192.
Distinction between civil and criminal process, 192, 193.
The rule in civil cases s^ted by Savage, C. J., 192.
Illustrations; McMahon's Case, 198.
Private person called to assist deputy-sheriff, civil process, 193.
Assisting in the execution of criminal process, 194.
The rule of liability, 195.
Illustration; Rice's Case, 195, 198.
Assisting in the execution of a search-warrant illegal on its face, 195,
196.
When the person responding to the call of an officer does so at his
peril, 194.
Illustration; Elder's Case, 194.
Directing the execution of process, 208, 20(i
Illustration ; Roth's Case, 209, 210.
Liability of a person causing the arrest of another, 209, 210.
Liability of person making complaint, 210.
Inciting an officer to arrest on a void writ, 210, 211,
Appointed to execute process, 197.
The rule of liability and protection, 197.
Illustration ; Murdock's Case, 198, 199.
Arrests by, without process, 197.
Duty of private persons when making an arresti 86b
Private persons who act officiously, 197.
PROBABLE CAUSE:
How the question is to be tried, 14.
By the jury, 14.
By the court, 14.
Province of the court and jury, 278, 281.
The law stated by Marcy, 278. " '
The law stated by Morton, 278.
640 ANALTTIOAL INDBX.
PROBABLE CAUSE DEnNED(259, 276):
Depends upon honest and reasonAble r^ief, 969L
. Not upon the actual state of the case, 952l
The true point of inquiry, 252.
The law stated by Shaw, G. J., 252.
Applies to the nature of the suit, 252.
What is reasonable or probable cause, 252, 258, 254, 25S.
AdamS'Bicknell Case, 253, 254, 256.
Judgment of justioe^s court, evidence of probable cause, 253.
A judgment reversed evidence of probable cause, 253, 254%
A judgment when conclusive on the question of probable cause, 254.
255.
Advice of counsel, 255.
Facta constituting, 255, 256.
Illustrations, 255, 256, 257, 258.
Suing out an attachment, 257. ,
Circumstances showing probable cause, 257, 258.
What is not reasonable cause, 258, 250.
Facts not amounting to probable cause, 262.
An element in the plaintiff's case, 267.
Honest and reasonable belief, 267, 268.
Want of probable cause a question of law, 267, 277.v
Existence of facts constituting probable cause a queation of fact,
267, 277.
The right to judge from appearances, 268.
Persons may judge from appearances as to probable cause, MS.
A man*s conduct may justify a suspicion, 269.
Good faith on the part of the prosecutor a defense, 269.
Municipal officers prosecuting under void charters, 270.
Advice of counsel and probable cause, 270.
Arrest for theft; settlement and discharge. 271.
Want of probable cause the gist of the action, 271, 279L
Suing out and levying a distress warrant, 278%
Character of the plaintiff an element in probable cause, 278.
Burden on the plaintiff to show a want of probable cauae, 278, 276.
Reasonable inquiry as to character of accused, 274.
Gross negligence as affecting probable cause, 274. %
Error and mistake, 274.
A belief induced by error and negligence, 276.
Ignorance of law excuses no one, 275.
Character of the accused where the charge is upon intematioii
and belief, 276.
Probable cause a mixed question of law and fact, 878i
Evidence of the want of probable cause, 294, 29Qw
Prima facie evidence, 295, 296.
Judgments of trial courts, 206.
How far conclusive evidence, etc.. 296, 800.
Review of the authorities, 296, 297, 298, 289.
The correct rule, 299, 800.
t)
ANALYTIOAL INDEX. 641
PROBABLE CAUSE DEFINED (continued):
Fcust$ constituting (coDtinued).
Evidenoe before the magistrate competent, 808, 804.
Admission of the existence of, 305.
Settling suit by payment of demand, 805.
Payment of a demand estops plaintiff, etc., 805, 808.
Waiving examination before justice, 306, 807.
In actions for false imprisonment, 807.
No bar to the action, eta, 807.
Probable cause and absence of malice no bar to an action for false
imprisonment, 807, 808.
Evidence in actions of false imprisonment, 480, 481.
Burden of proof upon the plaintiff, 481, 482.
He must show the imprisonment to have been false^ when, 481.
What is prima facie evidence of probable cause, 289.
Conviction by an examining magistrate, 389.
Acquittal by magistrate, 280, S90.
Disagreement of a jury,' 290, 291.
Conviction reversed on appeal, 291, 292.
Reversed decree evidence of probable cause, 292, 298.
Signs displayed evidence (^probable cause, 294.
Evidence of the want of probable cause, 282, 288.
Acquittal by an examining magistrate, 282, 283.
Prima facie evidence of the want of probable cause, 288.
Discharge does not raise a presumption of the want of probable
, eause, 288;
Evidence of probable cause, 284.
Probable cause cannot be inferred from malice, 265.
Probable cause, evidenoe of, see Evidence, 460.
PROCESS :
What is regular process, 67.
Arrest under, 67.
Essentials of, etc., 67.
OfScer protected by, 68.
' Abuse of, 68.
Arrest without, 68.
At common law, 08.
Under statutes, 69.
Statute of Illinois, 69.
Process protects the officer when regular on its fare, 168ii
'^' The rule stated by Bigelow, 168.
Officer not bound to look beyond his warrant, 109.
When regular process does not protect the officer, 170.
An illustration ; Underwood^s Case, 171.
A party suing out process f>*om competent court ; liability, 107.
Liable for regularity of process and good faith, 107.
Not liable for acts of the officer beyond the authority of the writ, un-
less, etc., 107.
. 41
C42 ANALYTICAL INDEX*
PROCESS (continued):
Party suing out process; liability for, etc., 107.
Validity of the writ and good faith in caustng it to fasae, 107.
Ratification ; trespasser ab initio, 107.
May becoroe liable by ratification, 107.
PROOF OF DAMAGES. 477.
PROSECUTORS IN CRIMINAL CASES (208):
Liability of; the rule stated by Walker, J., d08L
Illustration ; MitchelPs Case, 204.
Prosecutor^s conduct unreasonable, eta, 204.
Liability for an illegal act of the justice^ 209.
Illustration : Boerger's Case, 205, 90(L
Ratification by prosecutor, 207.
Illustration; Gibb*s Case, 207.
Prosecutor must act in good faith, 207.
Not required to act from public motives, 207.
Illustration ; Woodman's Case, 208.
Malicious prosecution and probable cause, 208.
Prosecutor must act in good faith independent of legal advioei 825.
Prosecutor liable when complant states no offense, 29, 80, 81.
The contrary doctrine illustrated, etc., 29, 90, 81.
PUBLIC SCHOOLS:
Discipline of pupils, see Teacher and Pupil,. Ill, 112, 118.
PUNITIVE DAMAGES, 520.
PUPIL IN PUBLIC SCHOOLS: See Tbachrb and Pufi^ 111, |118^ 118.
Q.
QUASHING AN INDICTMENT:
As an end of the prosecution, 858.
QUASI-JUDICIAL OFFICER:
The rule of liability, 166.
Overseers of the poor, 167.
R
RAILROAD COMPANY'S LIABILITY:
For malicious prosecution, 885.
Railroad company liable for false imprisonment^ 828L
Illustrations of the rule, 228.
Railroad officials as police officers, 228.
RATIFICATION:
Liability by, 108.
Party ratifying must have full knowledge, lOSt
E^entials of a ratification, 108.
Exception to the general rule, 108.
Ratification without inquiry, 108.
ANALYTICAL INDSX. 643
RATIFICATION (continued):
Party having all the knowledge he Oftres for, 108.
May be expressed or impHM, 103.
Evidence must be clear and explicit, 103.
Express ratification not requisite in i^l cases, 108^
May be inferred, when, 108.
SuflSciency of the ratification, 103.
Of wrongful acts, 229.
By trespasser a& initio, 107.
Infants, 106.
An infant cannot be a trespasser by prior or subsequent assent, 106.
RECORDS AS EVIDENCE (454):
Contents when lost, how shown, 454, 495.
Matters not appearing of record, inadmissible, 455.
RELEASE AS A DEFENSE (438):
What is a sufficient release, 438, 439.
REPLICATIONS : See Pleadings, 896.
RIGHT TO A SPEEDY TRIAL (180):
Abuse of power, 180, 181, 182.
Arrest of drunken rioters on view, 183«
s.
SATISFACTION:
As a defense, 444, 445, 446, 447, 448.
SCHOLARS:
Discipline of, etc., see Teachebs and Pupil, 111, 113, 118,
SERVANT: See Master and Servant, 892.
«
SETTLEMENT:
With one releasee all, 444, 446, 447, 448.
SHAME, INSULT AND HUMILIATION, 484.
SHERIFF:
Liability for the acts of his deputy, 191.
Liability to respond in exemplary damages, 198.
SMART MONEY, 520.
SPECIAL DAMAGE:
' Evidence of, 485.
SPECIAL PATROLMEN (81) :
Appointed for special duty in stores, etc., 81.
Liability of the person who pays the salary, 81.
Under the control of the police board, 81.
STATE'S ATTORNEY:
Advice of, 811, 312, 322.
STRANGERS:
Directing the execution of legal process, 208, 209.
644 ANALYTICAL INDEX.
SURVIVAL OF THE ACTION (369):
The oommon-law rule changed, 869.
Death of the plaintiff, 369.
Death of the defendant, 369.
The right of survivorship, 870.
Of the aotion of malicious proeecution, 68L
The English common law, 53,
Statutes of Edward III., 54.
Statute of Massachusetts, 64.
Application of the law, 54.
SUSPICION:
Grounds of honest belief, 27, 28.
T.
TAKING A PRISONER OUT OP THE JtmiSDICmON, 18a
TEACHER AND PUPIL (111):
The right of restraint and punishment, 111.
Must be exercised with moderation. 111.
Presumptions of law in favor of the.teacher. 111.
Liability in a civil suit for an abuse of power. 111.
The law stated by Stewart, J., 112.
Correction not to be administered in anger, 112^
Ages of pupils to be considered, 112.
The power of correction not to be a pretext for cruelty and oppresBion,
112.
Extent of the power a question for the jury, 11&
The law stated by Bigelow, J., 118.
TENDER OF AMENDS:
Plea of, 425.
Replication to, 427.
TREATMENT OF PRISONER BY OFFICER:
The rule stated, 72.
u.
ULTRA VIRES:
The doctrine, 222.
USURPATION OF AUTHORITY BY JUDGES (126):
Absence of jurisdiction over the subject-matter, 126*
Acts done without authority, 126.
V.
VACATED ORDERS OF COURT:
Imprisonment under, 202.
Rescinded order, 203.
ANALYTICAL INDEX. 645
VERDICTS:
The jury and its findings, 552. .
A verdict defined, 552.
Different kinds of verdicts, 552.
General verdicts, 552.
Special verdicts, 552.
Rules of law as to special verdicts, 558. *
Special findings, 554.
Statutory provisions, 554, 555.
Material questions of fact to be submitted, 556.
Special findings inconsistent with the general verdict, 556, 557, 558.
The degree of inconsistency defined, 559.
Practice where inconsistency exists, 559 560.
Special findings in actions for malicious prosecutions, 580.
Forms of special submissions, 561.
Forms of special findings, 562.
Submissions for special findings, 563.
Special findings control the general verdict, 564, 565.
VINDICTIVE DAMAGES, 520.
VOID ORDERS OF COURT:
Protection to persons acting under them, 199, 200.
Illustration ; Fischer^s Case, 200, 201, 202.
VOID PROCESS:
Authorizing the service -of, 100.
VOLUNTARY ESCAPE:
Not an end of the prosecution, 856.
wr
WAIVER AS A DEFENSE (435):
Of the right to sue, 485.
Of imprisonment, 436.
What is a waivei*, 436.
WANT OF PROBABLE CAUSE (477):
Appearing from circumstances, 258.
Burden of showing want of reasonable cause, 488.
The rule stated, 483.
Malice in actions for false imprisonment, 483.
WARD: See Guabdian and Ward, 111.
WARRANT:
What is a regular warrant on its face, 67.
Essentials of complaint and warrant, 67.
WEIGHT OF THE TESTIMONY (479):
A question for the jury, 4^0.
Credibility of witnesses, 480.
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