
    Clifton v. Grayson.
    1. A party who procures an illegal arrest to be made, is liable in trespass for false imprisonment, though not present aiding and abetting.
    2. It is the province of the Judge to determine on the admissibility of evidence, and for the jury to determine if it proves the facts charged.
    Clifton declared against Grayson in Lauderdale County Court, in an action of trespass, for an assault and battery, and false imprisonment. The plea was, not guilty. A bill of exceptions taken by the plaintiff, shews, that on the trial, he produced one Kursner, a witness to prove, that he, the witness, had arrested the plaintiff, at the request of the defendant. This evidence was objected to, and rejected by the Court, on the ground that the request of the defendant did not make him a trespasser. The Court then inquired of the witness what the facts were? he answered, that about ten minutes before the arrest, the defendant asked him if he had executed a ca. sa. he had against the plaintiff, and being informed he had not, the defendant said he wished him to do so, and informed him where the plaintiff was; that the witness then went over the street to the office of one Ward, and arrested the plaintiff. Ward’s office was in sight of the place where the conversation took place, and distant about ninety yards, but the witness did not know if the defendant saw the arrest. The plaintiff’s counsel insisted on the exclusion of the fact, that the witness had a ca. sa. as not admissable under the issue joined, but contended that the fact of the arrest should go to the jury as evidence. The Court held the evidence inadmissible, unless the defendant was present, aiding and abetting in the arrest, and unless the fact of the witness having the ca. sa. as an officer, could also go as evidence to the jury. There was a verdict for the defendant, and the decision of the Judge above stated, is here assigned for error,'by Clifton, the plaintiff,
    W. B. Martin, for the plaintiff in error,
    argued that a defendant might be guilty of a false imprisonment, with-being present, aiding and abetting, and that therefore the evidence was improperly rejected,
    
    
      .Hutchison, contra,
    A party may be liable for an lilegal arrest, though not present aiding and abetting, but this is only in an action on the case; not such an action as this, which s trespass.  But be this as it may, there can be no error in the record; for it does not appear there was any illegal arrest. It was certainly not competent for the plaintiff to introduce .a witness, and select only a part of his statement, without taking the whole. Then what was his statement? it was, thatthe defendant directed him to execute a ca. sa. and he did so. It was lawful for him to arrest the plaintiff on a ca. sa. unless the precept was illegal, which is not shewn or pretended; then there could be no trespass. It could only be by reason of illegality in the process that any one could be liable; and this should have been shewn and relied on.
    
      
      
         3 3tarkie’s Ex. l;47, 2 Mayn?n6r67. ’
    
    
      
       Hardin 490 2 Littell.234, gJ^xcMtt" p, iss-9.
      
    
   By LIPSCOMB, C. J.

The witness was offered to prove that he had, at the request of the defendant, arrested .and held the plaintiff in custody: the Judge of the County Court would not permit this evidence to go to the jury, on the ground, as he states, that it would not prove that the defendant was a trespasser. This is, as we conceive, the only point presented by the bill of Exceptions. It is true that it contains a great deal more, which seems to be only a conversation for the gratification of the Judge’s curiosity, without being permitted by him to go to thejury. If the Judge intended by the reason given for rejecting the testimony offered, to be understood as ruling, that a person who procures the illegal arrest of another, is not a trespasser, we are very clear, that he erred. ' If he only intended that it was not sufficient to prove the fact of the trespass, then he was trespassing on theprivilege of thejury in arresting the evidence from them. It is the province of the Judge to determine on the admissibility of testimony, and for the jury to say, whether it proves the facts charged or not. We can discover no objection to the testimony rejected by the County Court, on the ground of its admissibility, and it should have gone to the jury.

Judgment reversed, and cause remanded.  