
    No. 3932.
    Charles Joseph Gourgues v. Charles T. Howard et als.
    There can “be no damages awarded for an illegal arrest, unless the same was maliciously procured.
    APPEAL from the Fifth District Court, parish of Orleans, heawmont, J. Jury trial.
    
      A. J. lissot, for plaintiff and appellee. Joseph P. ITornor, for defendants and appellants.
   Morgan, J.

Libano is an authorized vender of lottery tickets in the company of which Howard, one of the defendants, is a manager. Bernard is in the employ of Libano, and is authorized by him to sell tickets. Libano caused the plaintiff to be 'arrested on the charge of having forged a ticket purporting to have issued from his office. He was in actual custody and confined about an hour, when he was released ou bail. The charge was investigated by a committing magistrate. Plaintiff was sent before the Criminal Court. There the proceedings were dismissed.

He now sues Howard, Libano, and Bernard for $25,000 damages for malicious arrest and imprisonment. He had a verdict for $1000. Defendants appeal.

As regards Bernard, he seems to have had nothing to do with the arrest. Consequently, the judgment against him was wrong.

As regards Howard, he diu not make the affidavit upon which the arrest was made, nor did he cause the plaintiff to be arrested. As to what took place in his office between him and Libano and Gourgues, there appears to be some discrepancy in the evidence, Gourgues swearing that Howard told Libano to have him arrested, and Libano swearing that Howard only told him that “he knew what to do.” This is not sufficient grounds for making Howard responsible for malicious arrest.

As regards Libano, it appears that the plaintiff claimed from Bernard the payment of a prize represented by a ticket which the plaintiff alleges he purchased from Libano’s office through Bernard. Bernard pronounced the ticket a forgery, and refused to pay. Plaintiff then met Libano in the street and complained to him that his ticket had not been paid. Upon being shown the ticket Libano pronounced it to be a forgery. They went together to the office of the company and examined the list upon which, by regulation of the company, the numbers on the ticket should appear, the plaintiff protesting that he had nothing to do with the list, and claiming that having purchased the ticket he was entitled to be paid-the prize which it had drawn. Some altercation took place between them, each threatening the other with arrest, and each going together to the magistrate’s court to obtain a warrant of arrest. For some reason the magistrate refused to issue a warrant against Libano, but he issued one against Gourgues.

There can be no damages awarded for an illegal arrest-, unless the same was maliciously procured. 6 An. 577. And we do not see any malice on the part of Libano. He certainly believed that the ticket was a forgery, and in this belief he is fortified by the testimony of all those who knew Bernard’s writing. *

Under these circumstances we do not see any foundation for the plaintiff’s claim.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that there be judgment in favor of the defendants with costs in both courts.  