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§ 621. A person arrested by military force in Alaska, for the violation of section 20 or 21 of the Indian intercourse act of June 30, 1854 (4 Stat., 732), is not a military prisoner, subject to the articles of war, but a citizen charged with a non-military crime, and must be removed for trial by the civil authorities within five days from his arrest or discharge, and his detention thereafter, under any circumstances, is uniawful. If the officer in charge cannot within five days deliver the prisoner to civil custody it is his duty to discharge him. A person may be confined in a military prison, but he cannot be lawfully required to labor or perform any duty other than taking care of his person. Waters v. Campbell,* 5 Saw., 18.

$ 622. When martial law a suflicient ground for public arrest.- The plaintiff, a resident of Pawtuck-t, Rhode Island, was aries ed by defendant, acting as captain under a commission from the governor of the state, and confined there for a short time and then removed to Providence, where he was imprisoned for several days, and then allowed to go home. Defendant pleaded statutes of limitations barring all actions for acts done while the state was under nartial law, provided the acts committed were to preserve the peace of the state. The defendant arrested the plaintiff under orders of Major-Gen, Anthony, the commander-inchief of the military force of the state. The plaintiff commanded a military company, organized to support what was called the people's constitution, and had been present at an attack of his company upon the state arsenal. After the state government had been recognized by the president as the lawful government of the state, he took no steps against it, and even remonstrated against the demonstrations against it by others. Held, that if the general purpose of the defendant was to preserve peace and aid the existing zovernment against suspected hostility, the jury ought to find this issue in his favor. If his intent was not what he stated in his plea — to preserve the peace — but was to gratify passion or power, the jury should convict him, though it be of opinion that the charter government, whose soldier he was, was entirely to be approved. Despau v. Olney,* 1 Curt., 306.

$ 623. Defenses.- An act of congress would not furnish a defense to an action for an unlawful military arrest and trial where such act of congress is unconstitutionalMilligan v. Hovey, 3 Biss., 17.

$ 624. Ratification by the general government of an unlawful military arrest and imprisonment furnishes no defense to an action against the milita"y officers guilty of the unlawful

Ibid. $ 625. In an action for damages for false arrest it was urged in defense that the affidavit upon which the warrant was issued did not authorize the issuing of such warrant under which plaintiff was arrested. Held, that such a defense was not good. Johnson v. Daws,* 5 Cr. C. C., 283.

8 626. Judicial commitment is a defense to an action for false imprisonment. Ingram v. Butt, 4 Cr. C. C., 701.

$ 627. Miscellaneous.- An arrest is a trespass where it is made under an execution after the date on which it is returnable has passed. Stoyel v. Lawrence, * 3 Day (Ct.), 1.

$ 628. A., having been imprisoned in the common jail of the District of Columbia by order of the house of representatives of the United States congress for refusal to answer questions put to him as a witness concerning the business of a partnership of which he was a member, brought an action for false imprisonment against the sergeant-at-arms who executed the order for his arrest, and the members of the committee who caused him to be brought before the house, where he was convicted f contempt of its authority. Held, that the order of the house was void as being without authority, and furnished no protection or justification to the sergeant-at-arms; but that as to the members of the committee, the constitutional exemption from liability elsewhere for any vote, report or action in their respective houses was a good defense, Kilbourn v. Thompson, 13 Otto, 168.

$ 629. The plaintiff brought action against the defendants for false imprisonment. The declaration contained four counts. Held, on demurrer, (1) that trespass was a proper form of action for false imprisonment; (2) that aggravation may be proved in trespass without averinent; (3) that pleas in bar should confess and avoid or else traverse the declaration; (4) that traverse with confession was void. Stanton v. Seymour,* 5 McL., 267.

$ 630. The defendant, a judgment debtor, was discharged from imprisonment under chapter 216, General Statutes of Rhode Island, for the neglect of the plaintiff to pay his board, and because he was not committed on execution in pursuance of section 5, chapter 213. He was afterwards arrested by a deputy-sheriff upon an alias execution in an action upon the same judgment. Held, that the arrest was unlawful. Barnes v. Viall, * 6 Fed. R., 661.

$ 631. If a judgment debtor has been discharged for the non-payment of prison fees the debt is not released; but the plaintiff cannot lawfully arrest the debtor again upon an execution issued upon the same judgment; nor can he evade that consequence by arresting upon mesne process in an action on the judgment, but he may again imprison his debtor upon a second imprisonment. Ibid.

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8 632. The plaintiff and attorney are liable in trespass for the imprisonment of the defendant on an alias execution, and not the clerk, when there was nothing on the records of the court to instruct him that the plaintiff had been imprisoned for more than thirty days. Ibid.

8 633. The arrest and imprisonment of the defendant was illegal. But the fact that the arre:t was made through a mistake in the law goes very far in the reduction of damages. Ibia.

$ 634. An affidavit that a debtor “is about to leave the state of Oregon with intent to delay, hinder and defraud his creditors” is sufficient foundation for a warrant for his arrest. Norman v. Manciette, * 1 Saw., 484.

$ 635. Where the affidavit is sufficient on its face to justify the issuance of the warrant and the subsequent arrest, no ac ion for false imprisonment will lie. If the affidavit is false the action should be against the affiant for malicious prosecution. Ibid.

$ 636. One day's admitted false imprisonment will not be taken as a reason for granting a second trial of an action for falee imprisonment, where the first one has failed, for any reason, to give plaintiff a judgment. Ibit.

8 637. A debtor who is about to remove from the state is an “absconding debtor” within the meaning of statutes authorizing the arrest of such persons by their creditors. Ibid.

$ 638. A creditor in Oregon has until the return of the execution against the property of his debtor to take out execution against the body, and, in the meantime, if the debtor has been arrested provisionally, he must remain in the custody of the sheriff, or his bail, or satisfy the judgment. Nor is a creditor liable for false imprisonment for neglecting to give directions for the debtor's discharge, when for any reason he has become entitled to it. The debtor is charged with the duty of procuring his own discharge, and if he remains in custody longer than necessary it is his own fault. Ibid.

IX. MALICIOUS PROSECUTION

SUMMARY — Probable cause, $ 639.— What necessary to support action, $ 640. — Malice im

plied, S 641.- Questions for court and jury, 8 642.— Measure of damages, SS 643, 630.Mulice must be proved, $ 641.- Proceedings in bankruptcy; probable cause, ss 645, 646.Advice of counsel, § 647.– Corporations, $ 648.— Acts of military officers, $$ 649–654. Mitigation of damages, 8 652.

$ 639. Probable cause for arrest warrants the detention of a prisoner a reasonable time. Wheeler v. Nesbitt, Ss 655-658.

$ 640. To support an action for malicious criminal prosecution the plaintiff must prove the fact of prosecution, that the defendant was the prosecutor or instigated the prosecution, and an acquittal. He must also prove that the charge against him was unfounded, without probable cause and actuated by malice, and the burden of proof is upon the plaintiff. Ibid.

$ 6+1. Malice may be implied from want of any probable cause. Ibid.

5 642. Probable cause is a question for the court; nalice is for the jury. Stewart v. Sonneborn, SS 659–665.

$ 643. Iu actions for malicious prosecution the fees of counsel in prosecuting the suit are not to be taken into account in estimating damages. Ibid.

$ 614. Malice must be proved to sustain action for malicious prosecution. Ibid.

$ 645. A., as a creditor, sued his alleged debtor, B., and upon the latter's transferring his property to his brother, A. had B. put in bankruptcy. Subsequently it was held that A. had no claim against B. Held, that in determining the existence of probable cause to put B. in bankruptcy, the decision that B. owed A. nothing could not be considered. Only the facts existing at the time B. was thrown into bankruptcy should have been considered; not facts determined subsequently thereto. Ibid.

$ 646. The fact that a creditor believed he had a bona fide debt against a man and good cause to put him in bankruptcy, coupled with advice of counsel to the same effect, is sufficient to disprove malice or want of probable cause. Ibid.

$ 647. In order to admit the deposition of an attorney tending to prove that he had advised a suit alleged to have been maliciously brought, it must appear that he advised the suit upon a deliberate examination of the facts of the case, and not upon statements of the pretended cause of action, and also that his advice was given prior to the commencement of the suit. Blunt v. Little, SS 666-670.

& 648. Corporations are liable for the torts of their agents acting within the scope of their employment, and may be sued for malicious prosecution. Copley v. Grover, etc., S. M. Co.,

$ 671.

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$ 649. During the years of 1864 and 1865 the defendant McDowell was a brigadier-general in the regular army of the United States, and was commander of the military department of the United States known as the Department of the Pacific. He caused to be issued an order which was substantially as follows: "Persons exulting over the assassination of the president become virtually accessories after the fact and will at once be arrested by any officer or provost-marshal or member of the police having knowledge of the case." The plaintiff, regardless of this order, one day at Potter Valley exulted over the assassination of Lincoln. He was arrested by the order of the defendant Douglas, who was a captain in the army of the United States, then serving in the state of California, and imprisoned for the space of thirteen days. He was taken from this place and transported to San Francisco, where he was confined six days. During this confinement he was compelled to do manual labor in common with prisoners belonging to the military forces imprisoned at this place. In an action for damages it was held that the defendant Douglas, being merely a subordinate officer, was not liable to the plaintiff, and that he was not entitled to judgment against the plaintiff for his costs and expenses. Held, also, that the defendant McDowell was liable to the plaintiff for damages for false imp onment. McCall v. McDowell, SS 672-684.

$ 650. As no evil intention or bad motive can be imputed to either of the defendants the plaintiff was only entitled to compensatory damages. Ibid.

$ 651. The plaintiff was not in the actual custody of the defendant McDowell, but of his subordinates; yet McDowell having caused the arrest and imprisonment was held responsible for whatever injuries the plaintiff had suffered thereby in consequence of his neglect or omission to provide against the same. Ibid.

$ 652. The utterances of the plaintiff were not a legal cause of arrest, but in actions for injuries to the person the misconduct of the plaintiff by which such injury was provoked may always be considered in mitigation of damages. Ibid.

$ 653. A military subordinate is not liable when acting in obedience to military orders, Ibid.

$ 654. Congress has power to authorize the president to suspend the writ of habeas corpus act; and, as a sequence, it has also the power to protect or indemnify those who arrest under the act; but held, in this case, that General McDowell does not come within the protection of the indemnity statute. Ibid.

[NOTES. — See SS 685-714.]

WHEELER V. NESBITT.

(24 Howard, 544-553. 1860.) Opinion by MR. JUSTICE CLIFFORD.

STATEMENT OF FACTS.— This is a writ of error to the circuit court of the United States for the middle district of Tennessee. John J. Wheeler, the plaintiff in error, complained in the court below against the present defendants in a plea of trespass on the case, as will more fully appear by reference to the declaration which is set forth at large in the transcript. It alleged three distinct causes of action, and each cause of action was set forth in two separate counts. All of the counts, however, were founded upon the same transaction, so that a brief reference to the first, third and fifth of the series will be sufficient to exhibit the substance of the declaration, and the nature of the supposed grievances for which the suit was instituted. First, the plaintiff alleged that the defendants, falsely and maliciously contriving and intending to injure him in his good name and reputation, on the 18th day of September, 1856, at a certain place within the jurisdiction of the court below, went before a certain justice of the peace for that county, and falsely and maliciously, and without any reasonable or probable cause, charged the plaintiff with haring feloniously stolen four horses which he then and there had in his possession, and caused and procured the magistrate to grant a warrant under his hand and seal for the apprehension of the plaintiff, upon that false, malicious and groundless charge; and that he, the plaintiff, was accordingly arrested by virtue of the warrant so procured, and falsely and maliciously, and without any reasonable or probable cause, imprisoned in the prison-house of the state there situate for the space of seven days; and that at the expiration of that period he was fully acquitted and discharged of the supposed offense, and that the prosecution for the same was wholly ended and determined. Secondly, the plaintiff alleged that the defendants, on the same day and at the same place, with force and arms assaulted him, the plaintiff, and forced and compelled him to go to the prison-house of the state there situate, and then and there falsely and maliciously, and without any reasonable or probable cause, imprisoned him for the space of seven days, contrary to the laws and customs of the state. Thirdly, the plaintiff alleged that the defendants, on the same day and at the same place, did unlawfully and falsely conspire, combine and agree among themselves and with others, that the first-named defendant, with a view to procure a warrant for the arrest and imprisonment of the plaintiff. should go before a certain magistrate of the county, and make oath, according to law, that he, the complainant, verily believed that the plaintiff, with two other persons, had committed the aforesaid offense, and that the other defendants in this suit should attend the preliminary examination of the plaintiff before the magistrate, and then and there aid, abet and assist the complainant, by their testimony, influence and advice, in prosecuting the charge; and the plaintiff averred that the defendants so far carried their corrupt and evil conspiracy and agreement into effect that they procured the warrant from the magistrate by the means contemplated, and that he, the plaintiff, was then and there arrested by virtue of the same, and imprisoned upon that false, malicious and groundless accusation for the space of seven days, and that at the expiration of that period he was fully acquitted and discharged of the supposed offense. Such is the substance of the declaration, so far as it is deemed material to reproduce it at the present time. Testimony was introduced by the plaintiff tending to show that he was the lawful owner of the four horses described in the warrant on wbich he was arrested; and he also proved, without objection, that he had always sustained a good character in the neighborhood where he resided. He also introduced a duly certified copy of the complaint made against him by the first-named defendant, and a duly certified copy of the warrant issued by the magistrate. Those copies show that the complainant, on the 18th day of August, 1856, made the accusation under oath, as required by the law of the state, and that the magistrate thereupon granted the warrant for the apprehension of the plaintiff, together with two other

persons, who were jointly accused with him of the same offense. Both the complaint and warrant were in regular form, and the latter contained the usual directions that the persons accused should forth with be brought before the magistrate who issued it, or some other justice of the peace for the county, to answer to the charge, and be dealt with as the law directed. Whether the officer made any formal return on the precept or not does not appear; but it is stated in the bill of exceptions that the warrant was placed in the hands of the sheriff, and that the persons accused of the offense, including the plaintiff, were on the same day brought before the magistrate for trial. When brought into court they were not prepared for the examination, and at their request the trial was postponed for twelve days, or until they should have sufficient time to procure the attendance of certain witnesses whose testimony was necessary, as they represented, to establish their defense; and the minutes of the proceedings before the magistrate state, in effect, that the accused, “not being able to give any security for their appearance" at the time appointed for the trial, “or not offering to give any, the sheriff was directed to hold them in cus

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tody to answer to the charge.” Pursuant to that order the plaintiff, as well as the other persons accused, remained in the custody of the sheriff, and were kept by him in the prison-house of the state there situate until the witnesses of the plaintiff appeared; and on the 25th day of September, 1856, they were again brought before the magistrate, and after the witnesses on both sides were examined all of the accused were fully acquitted and discharged of the alleged offense.

To show that the prosecution was groundless, and without any reasonable or probable cause, the plaintiff examined several witnesses to prove the circumstances under which he was arrested, and the substance of the evidence adduced against him at the trial before the magistrate. One of the defendants is the magistrate who granted the warrant, and the other defendants were witnesses for the state in the criminal prosecution. All of the defendants were citizens of the state of Tennessee, and the plaintiff was a citizen of the state of Kentucky, and it did not appear that the parties had any acquaintance with each other prior to this transaction. No attempt was made on the part of the plaintiff to prove express malice, and there was no direct evidence of any kind to support the allegation of conspiracy. On the other hand, the defendants insisted that there was no evidence to support the charge of conspiracy or of false imprisonment, and that the prosecution was instituted in good faith, and conducted throughout upon reasonable and probable cause; and to establish that defense they called and examined several witnesses to prove what the evidence was which was given against the plaintiff at the trial before the magistrate. Without entering into particulars, it will be sufficient

say that the evidence adduced by the defendants had some tendency to maintain the defense. Under the rulings and instructions of the court the jury returned their verdict in favor of the defendants, and the plaintiff excepted to the charge of the court. Unaided by the assignment of errors, it would be difficult to ascertain, with any degree of certainty, to what particular part of the charge of the court the exceptions were intended to apply. But that difficulty is so far obviated by the specifications contained in the printed argument filed for the plaintiff, that with some hesitation we have concluded that the case, as presented in the transcript, is one which may be re-examined in this court.

$ 655. To support a charge of malicious prosecution there must be proof of want of probable cause and of malice.

1. Among other things, the presiding justice instructed the jury that, in order to excuse the defendants on the first two counts in the declaration, it must appear that they had probable cause for the prosecution of the plaintiff for the offense described in the complaint and warrant, or that they acted bona fide without malice. Objection is made by the counsel of the plaintiff to this part of the charge of the court; but we think it was quite as favorable to him as the well-settled rules of law upon the subject would possibly allow. To support an action for a malicious criminal prosecution the plaintiff must prove, in the first place, the fact of prosecution, and that the defendant was himself the prosecutor, or that he instigated its commencement, and that it finally terminated in his acquittal. He must also prove that the charge preferred against him was unfounded, and that it was made without reasonable or probable cause, and that the defendant in making or instigating it was actuated by malice. Proof of these several facts is indispensable to support the declaration, and clearly the burden of proof in the first instance is upon the plaintiff

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