
    William B. Benham vs. Charles R. Vernon et al.
    Law.
    No. 25,228.
    Decided May 14, 1886.
    The Chief Justice and Justices Cox and James sitting.
    1. The mere fact that the information given an officer upon which he arrests a party turns out untrue does not make the informer liable in trespass to the party arrested.
    2. So, too, the mere fact of following the officer with the secret intention that under certain conditions the defendant will assist him, there being no arrangement or understanding for co-operation with the officer in making the arrest, does not constitute such a participation in the arrest as would make the defendant guilty of a trespass.
    8. Where private persons cause an arrest to be made without process, upon a charge of forgery and larceny, they are liable in some form of action, unless it appear that those crimes have been committed, and that they had reasonable cause to believe that the person actually arrested was the guilty person ; but the law does not go so far as to require them to show that he is guilty of the charge.
    4. Where an action of trespass against several for false arrest is brought to the General Term upon a bill of exceptions and case stated, and it appears that, in addition to errors of law, there is no sufficient legal evidence to implicate a portion of the defendants against whom judgment has been rendered, the court may reverse the judgment finally as to them, and send the case back for a new trial as to the others.
    Motion by defendants for a new trial upon a bill of exceptions and case stated.
    statement oe the case.
    This was an action of trespass vi et armis for unlawful arrest and false imprisonment of the plaintiff. The defendants named in the declaration are Vernon and Carter, officers of the police force ; N. H. Miller, an attorney at law, and Porter and Hitchcock. On the trial of the cause the court instructed the jury that the officers, Vernon and Carter, having acted upon information which justified them, as officers, in making the arrest, were exempt from liability ; but as to the other three defendants the case was left to the jury, upon instructions as to the law. A verdict of $2,000 damages was rendered. The case came to the General Term on a bill of exceptions which embodied, besides the rulings of law complained of, the testimony given at the trial; such a bill being allowed under the practice of this court, in cases where the judgment is complained of not only for errors of law in the rulings of the court at the trial, but because there was no evidence sufficient in law to support the verdict, or because of excessive damages.
    The further facts sufficient to an understanding of the oase appear in the opinion of the court.
    James Coleman, Thos. F. Miller and C. F. Rowe for plaintiff:
    If the defendants are liable at all, they are liable in trespass, and the declaration so charges.
    “The action of trespass lies when a party claims damages for a trespass committed against him. A trespass is an injury committed with violence, and this violence may be actual or implied, and the law will imply violence when none is actually used, when the injury is of a direct and immediate kind and committed on the person,” etc. Steph., PL, IT.
    The leading case on this subject is Scott vs. Shepherd, 2 W. Bl., 892, in which it was alleged that the plaintiff stopped a squib set going in a crowded part of the public streets.
    If the declaration had alleged that the defendants, as officers, proceeded in making the arrest by virtue of a warrant, case instead of trespass might have been the remedy.
    The distinction lies in that “when the immediate act of imprisonment proceeds from the defendant, the action must be trespass; but when the act of imprisonment by one person is in consequence of information from another, case is the proper remedy.” Morgan vs. Hughes, 2 T. R., 225; Turner vs. Walker, 3 Gill & J., 386; Stanton vs. Seymour, 5 McLean, 26T; Add., Torts, 606.
    The declaration here alleges that defendants made the arrest, and the jury under proper instructions so found. If the defendants, Porter, Miller and Hitchcock, had not been present, aiding and encouraging and participating in the arrest and imprisonment, but had contented themselves simply with giving the information which led to the arrest, case instead of trespass might have been the proper form of action. The evidence shows that the defendants, Porter, Miller and Hitchcock, each and all, participated in the arrest.
    The question whether the defendants, each and all of them, participated in the arrest and imprisonment or aided the same by their order, consent, advice, presence or procurement, was, under proper instructions, a question for the jury, to be determined by them upon the evidence in the case. Turner vs. Walker, 3 Gill & J., 386 ; Proffatt, Jury Trials, sec. 359; Coffin vs. Phoenix Ins. Co., 15 Pick., 295; Wells, Questions of Law & Fact, 9 ; Whirley vs. Whiteman, 1 Head (Tenn.), 610; Massey vs. Fingde, 29 Mo., 431; Green vs. Hill, 4 Tex., 465.
    If a person without warrant of law arrest aflid imprison another, he is liable in an action for any damages which the person so arrested may sustain. And whoever participates in such arrest, or aids the same in any way by order, consent, advice, presence or procurement, is equally liable in such action. Johnson vs. Tompkins, 1 Baldw., 601; Stoyel vs. Lawrence, 3 Day (Conn.), 1; Floyd vs. State, 12 Ark., 43; Stoddard vs. Bird, Kirby, 65; Add. Torts, 594, 595.
    In actions of this nature the plaintiff is entitled to recover vindictive or exemplary damages if the jury find that the defendants, in making the arrest, were actuated by malicious motives, or acted in wanton disregard of the plaintiff’s right or with an intent to injure or oppress him. Kilbourn vs. Thompson, Mac A. & Mack., 401; Day vs. Woodworth et al., 13 How., 311; Philadelphia, etc., E. E. Co. vs. Quigley, 21 How., 202; Milwaukee, etc., E. Co. vs. Arms, 91 U. S., 489; Beckwith vs. Bean, 98 U. S., 266; Simpson vs. Mc-Caffrey, 13 Ohio, 508.
    In cases of torts, courts will not grant new trials unless the verdict is so excessive as to imply gross partiality or corruption, Barnette vs. Hicks, 6 Tex., 352; Letton vs. Young, 2 Met. (Ky.), 560; Bump vs. Belts, 23 Wend., 86; Sargentas.-- — —, 5 Cow., 120; Southwick vs. Coleman, 9 Johns., 49; Swann vs. Bowie, 2 Cranch C. C., 221.
    The burden of proof in justifying the arrest and imprisonment of the plaintiff in this action is upon the defendants, Holroyd vs, Doncaster, 11 Moore, C. P., 440.
    
      In order to justify a private person in making an arrest, or to justify an arrest without process of law, it must appear that the plaintiff is guilty of the felony with which he is charged, and that the circumstances were such that any reasonable person acting without passion or prejudice, would fairly suppose the plaintiff to have committed the felony. In other words, if one without the protection of a warrant arrests another upon his own judgment, he must show, when called upon, that his judgment was warranted; that is, he must show either:
    1. A felony actually committed; and
    2. Facts that had come to his knowledge which justified him in suspecting the person arrested to be the felon; or
    3. A felony being committed, etc. Cooley, Torts, 115; Add., Torts, sec. 803; 1 Hill., Torts, 224; Bohan vs. Sawin,
    5 Cush., 285; "Wakely vs. Hart, 6 Binn., 316; Dodds vs. „ Board, 43 111, 98; Holley vs. Mix, 3 Wend., 350; Beuck vs. McGregor, 3 Yroom, 14 ; Burns vs. Erben, 40 N. Y., 463.
    “If people choose to settle private disputes by giving others into custody, they must take the consequences.” Warwick “os. Foulkes, 12 Mees. & W., 501; Allen vs. Wright,
    8 Carr. & P., 526; Hall vs. Booth, 3 Nev. & Man., 316; Commonwealth vs. Deacon, 8 Serg. & B., 41; State vs. Boane,
    2 Dev., 58; Brockway vs. Crawford, 3 Jones (N. C.), 434; Eanes vs. State, 6 Humph., 53; Long vs. State, 12 Ga., 293; Beuck vs. McGregor, 32 N. J. L., 10; State vs. Holmes, 48 N. H., 311.
    Probable cause is such conduct on the part of the accused as may induce the court to infer that the prosecution is for the public good. Cecil vs. Clarke, 11 Md., 534; McWilliams vs. Hoban, 42 Md., 62; Cooper vs. Utterbach, 31 Md., 286.
    This is for the court. Hill vs. Yates, 2 Moore, C. P., 80.
    • Advice of counsel, if given bona fide, may be considered in mitigation to disprove malice; but if the jury find that such counsel acted maliciously and oppressively, such advice will not protect him. And this is for the jury. Turner vs. Walker, 3 Gill &• J., 386; 1 Suth. Darn., 231.
    In this case there is no pretense of proof that the plaintiff was guilty of either of the crimes with which, he was chai’ged.
    If a man, under an honest belief that property is his, takes it, it is not larceny. Whart., Or. L., sec. 884.
    Francis Miller and Henry E. Davis for defendants:
    If the defendants, appellants, are at all liable to the plaintiff, they are so liable in an action on the case, but not in trespass.
    The distinction between the actions of malicious arrest, malicious prosecution, and false imprisonment, stated. Ahern vs. Collins, 39 Mo., 145 ; Brown vs. Chadsey, 39 Barb., 253, 260, 263; Von Latham vs. Libby, 38 Barb., 339.
    The distinction is: If a private person takes any part in an unlawful imprisonment of another by an officer, he becomes a principal in the act and is liable for the trespass; but if he merely communicates facts or circumstances of suspicion to the officer, leaving him to act on his own judgment and responsibility, he is not liable at all in an action, either for malicious prosecution or for false imprisonment. But of course if he misstates or withholds facts, he is liable in case for wrongfully procuring the arrest. Brown vs. Chadsey, swpra.
    
    If A, having no right to apprehend B, directs a police officer to take B, and he does so, B may maintain an action of false imprisonment against A; but if A merely make a statement to the officer, leaving it to him to act or not, as he thinks proper, and the officer then take B, his remedy against A, if any, is by action on the case. Hopkins vs. Crowe, 7 Carr. & P., 373; Morgan vs. Hughes, 2 T. B., 231; Brown vs. Chapman, 6 Man. Gran. & S., 365.
    The defendant sent for a policeman, who, on the defendant’s information and on inquiries made by himself, arrested the plaintiff. The defendant accompanied the policeman to the station and signed the charge-sheet. Held, that the defendant was not liable in trespass. Grinham vs. Willey, 4 H. & N., 496. See Gosden vs. Elphick, 4 Exch., 445.
    The distinction here pointed out is recognized in all the cases. See Garrett vs. Morley, 1 Ad. & EL, N. S., 18; Elsee 
      vs. Smith, 1 Bowl. & By., 9*7; Barber vs. Rollinson, 1 Cromp. & Mees., 330; S. 0. 3 Tyrwh., 266; West vs. Smallwood, 3 Mees. & W., 418.
    Of course the question whether the defendants in this case ordered or directed the arrest of the plaintiff, or truly 'and fully stated the case to the officers and left them to act upon their “own judgment and responsibility,” was one of fact, to be determined by the jury; but the court should have pointed out to the jury, which it refused to do, the distinction, in legal effect, in their possible findings on sach question of fact.
    In refusing the instructions asked by the defendants on this point, the court below said: “I find that Chitty lays down the doctrine very explicitly and refers to the authorities, and is himself the very highest authority upon that subject, that wherever a ministerial officer proceeds without warrant upon the information of another, trespass and not case is the proper remedy against the informer, if the action turns out to be unfounded.”
    The passage here referred to is 1 Chit., PL, 185, 186, and the authorities cited by that usually accurate author in support of the proposition quoted by the court are three in number, viz.: 6 T. R., 316; 2 Bing., 523, and 1 Camp., 181.
    Of these, the two former are cases in which the defendant actually took the plaintiff hy laying hands on him. Surely these do not support the text in the sense in which the court quoted it. The third case, that in Campbell, the only one cited by Chitty not involving actual trespass, is referred to and expressly disapproved in Gosden vs. Elphick, 4 Exch., 445, and Grinham vs. Willey, 4 H. & N., 491, and has never been followed or cited with approval in any case which we have been able to find. In all deference to the high authority of Chitty, to what weight is his statement on the point under consideration entitled, under the circumstances ?
    Where several are charged, and all of the trespass is not committed by all, their liability is limited to so much as all participated in. Aaron vs. Alexander, 3 Camp., 36.
    If the officer actually making the arrest was not liable, the defendants, who are charged only as participating in the arrest by way of assenting thereto, and not by actual physical participation, assault or bodily contact with the plaintiff, cannot be liable in this action. If the actual arrest was not a trespass, there was no trespass in the case.
    The cases are not free from apparent conflict on this point, but we claim, and we think the authorities will sustain the claim, that the rule is, that if the arrest is not a trespass on the part of the officer making it, no one of the other parties can he held liable in the action of trespass for any damages arising out of the arrest. .
    That is, if the arrest is lawful, anyone who advises, counsels or is present at it cannot be held as participant in a trespass, or as aiding or abetting it, when no trespass has been committed. This has been held so often in the case of an arrest under void process that no authorities need be addressed to that particular point.
    But it is contended on the other side that in this case the arrest was made without any warrant, and therefore trespass is the proper remedy, and so the court below held. There are authorities that seem to give countenance to this view, but we apprehend that an examination of them will show that it is correct only when the original act constituted a trespass.
    In this case the court held that “ the two officers are exempt from liability in this case, having acted upon the information which justified them, as officers, in making the arrest.”
    Waterman on Trespass, p. 328, sec. 361, says: “An action for false imprisonment is an action for a direct wrong or illegal act, in which the defendant must have personally participated. It is for having done that which, upon the statement of it, is manifestly illegal; while the ground for a malicious arrest or prosecution is the procuring to be done what upon its face is or may be a legal act, from malicious motives and without probable cause.”
   Mr. Justice James

delivered the opinion of the court.

This is an action of trespass to recover damages for the unlawful arrest and false imprisonment of the plaintiff. The case comes before us upon a bill of exceptions in which is included a case stated.

It is unnecessary to detail all the facts of the case. The substance of it is, that, upon the professional advice of Mr. N. H. Miller, an attorney at law, one of the defendants, the defendant Porter, accompanied by Miller and the defendant Hitchcock, went to the police station and informed officers Yernon and Carter that a forgery and larceny had been committed; and he then undertook to state (whether correctly or not) the circumstances which induced him to believe that the plaintiff was the person who was guilty of these two crimes.

Thereupon Carter, in company with these three defendants, started out to obtain a warrant, but the hour being late they were unable to obtain' it, and fearing, as they said, that the defendant would leave the city, Carter made the arrest without the warrant.

The principal question before us, was, whether Porter, the complaining party, and Miller and Hitchcock so participated in the arrest as to render them gnilty of a trespass; or whether, on the other hand, if their action consisted merely in lodging an information, correct or incorrect, which induced the police officer to make the arrest, but in which their participation extended no further, they were liable in an action of trespass.

The court below expressed its opinion very decidedly upon this point, and here I might say that at the very beginning of our inquiry we are presented by the bill of exceptions with a rather curious question, namely: whether the trial justice, in expressing that opinion, was addressing his remarks to the jury or merely giving to the counsel in the case his reasons for rejecting some of their prayers.

In their argument before us, counsel differed widely upon this point. We find, however, upon reading the bill of exceptions, that these remarks of the court are preceded by this paragraph:

“And thereupon the court severally rejected all the said prayers of the plaintiff, excepting the sixth; and severally rejected all of the said prayers of the defendants as asked, except the twenty-fifth and the thirty-third, as modified by the addition' at the end thereof of the words enclosed in brackets, which words the court, of its own motion, added against the objection of the defendants; and thereupon, the court, of its own motion, instructed the jury as follows.”

And then came the remarks, to be stated presently, which the plaintiff’s counsel insists were not addressed to the jury, but to counsel. At the same time it is to be observed that although here is a distinct statement in the bill of exceptions that these remarks were addressed to the jury, we find the court concluding them with this sentence:

“ In 'that view, gentlemen, of the general rule of the law, I now proceed to announee to the jury the instructions which I have prepared for their guidance.”

This concluding sentence suggests, it must be admitted, the possibility that, after all, the court may have intended what had been said up to that point for counsel only. Nevertheless, the bill of exceptions states it to have been addressed to the jury, and we must, therefore, so consider it.

In that opinion the court lays down the rule for determining whether the defendants are guilty of a trespass, as follows: “With regard to the form of pleading which covers or involves seven, eight, or more of the prayers of the defendants, I find that Ohitty, who is the best authority on the subject of pleadings, defines certain predicaments of various forms, all applicable where there has been a proceeding under legal authority; or where there has heen a proceeding under color of a court not having jurisdiction; or where there has been an imperfect or defective proceeding or an excess of jurisdiction, or the use of a proceeding which was rightful in itself; and also the case in which this one fell, the seventh one, where there had been an arrest without a warrant. And he lays down the doctrine very explicitly, and refers to the authorities, and is himself the very highest authority upon that subject, that wherever a ministerial officer proceeds without warrant, upon the information of another, trespass and not case is the proper remedy against the informer, if the accusation turns out to he unfounded.”

It will he observed that the court, in thus instructing the jury, refers to Chitty as authority for the proposition that “ wherever a ministerial officer proceeds without warrant, upon the information of another, trespass and not case is the proper remedy against the informer if the accusation turns out to be unfounded.”

That proposition is to he found in 1 Chitty’s Pleadings, 185, 186, and the author cites three cases in support of his text; hut on examination we find that only one of them— the case in 1 Campbell, 187 — distinctly sustains him. The doctrine laid down by that case, however, was subsequently disapproved of and overruled by the Exchequer Court in Gosden vs. Elphick, 4 Exch., 445, and again in Grinham vs. Willey, 4 H. & N., 496, so that the only authority which may be said to support the text of Chitty has been overruled and decided not to be the law.

And we think that, upon principle, it cannot he so. The true principle is that where the officer proceeds upon information given him, the information is simply something which causes the act of arrest, hut is not itself the act. If the information which induces the officer to arrest the party turns out untrue, that does not make the informer a trespasser so as to make him liable in an action of trespass vi et armis,

It was error, therefore, for the court to inform the jury that if they found the conduct of the defendants consisted simply of lodging information which proved to he untrue, they could nevertheless find against them in an action of trespass. But because of the equivocal appearance of the bill of exceptions, suggesting that possibly the court may have supposed it was speaking only to counsel, we do not feel inclined to lay any stress upon this point or to rest the fate of the case upon it.

Continuing, therefore, our examination of the record, we find that the court gave this instruction to the jury:

“If the jury find from the evidence that the plaintiff was arrested and imprisoned on a charge of forgery and grand larceny preferred against him by the defendant Porter; and that said arrest and imprisonment were made without warrant by one or more of the police officers of the District upon the accusation and information of said Porter, or of the defendant Miller, or both together, and that they were accompanied throughout by the defendant Hitchcock; and that said defendants did not content themselves with the statement of all their information and belief touching all the facts and circumstances which had come to their knowledge touching said alleged crimes, and then leave the officer free and uninfluenced to act upon his own official responsibility, but took an active part in aiding, advising, enconraging or assisting the officer to make the arrest; and by words or gestures, looks or signs, promoted the same, and voluntarily aided or assisted in making the arrest, or went near to the place of arrest with a view to aid or assist therein in any way that might become necessary; then the said defendants, or so many of them as the jury may find to have taken any active part in any of the ways aforesaid, in procuring, aiding or encouraging said arrest, are liable for said arrest and imprisonment in the present action.”

That is to say, that if, when the officers went to make the arrest, Miller and Hitchcock, for example, went near the •place of arrest with the intent to render aid if it should become necessary, then they must be held to have taken an active part in the arrest.

Now, undoubtedly, where an arrangement is made between the person who actually and manually makes the arrest and other persons, that the latter shall be near by, then even if they are unseen and are not actually present at the time of the arrest, the arrangement which they have made with each other and carried out by their taking such positions, makes the act of arrest the act of all the parties.

Thus, in the case of a murder, if one person goes to make the attack, and others, by arrangement, are on hand to guard or give information, they are held to have all united in the crime. So, too, in this case; if the officer who was to make the arrest and Miller and Hitchcock had an arrangement with each other that the latter would guard the door or be at hand, such an arrangement among themselves would make them actors iu the arrest equally with the officer.

But this instruction of the court is not stated in that way. Without any qualification as to the necessity of some proof of an.arrangement and co-operation between the officer and these defendants, the jury were told that the fact of the defendants going with the officer, although not into the presence of the party who was to be arrested but going near to the place of arrest, constituted a part of the arrest.

It is true that if Miller and Hitchcock had gone with the officer into the room in which the plaintiff was arrested, and which the evidence shows to have been in the third story of the house, instead of staying, as they did, on the street pavement, their presence might well be understood by the jury as a participation in the arrest.

But they were not actually present, and before they can be made constructively present, it must be shown that there was an arrangement between them and the officer by which they were to co-operate with him.' What their private intention may have been, the jury were not at liberty to infer. This instruction, therefore, would have enabled the jury to find that the defendants took part in the arrest by the mere act of following the officer, with a secret intention that, under certain conditions, they would assist him. We do not think that constitutes such a participation in an arrest as would make these defendants guilty of a trespass. This instruction, therefore, did not in our opinion, correctly state the law.

Again, in the fourth instruction, the court said: “The jury are instructed that the defendants have offered no legal, sufficient evidence in this cause to establish, as against the plaintiff, either of the crimes of forgery or grand larceny.” Where private persons cause an arrest to be made without a warrant, they are liable in some form of action, if it appear that no offence had been committed. Thus, in this case, it should appear that a crime — that forgery and larceny —had been commited; and next, that the defendants had reasonable cause to believe that the person actually arrested was the guilty person.

The law, however, does not go so far as to require them to produce evidence that he is guilty of the charge; and this instruction, we think, might well leave the jury to suppose that the defendants were required to establish the crime against the plaintiff. We can hardly suppose that the court meant so much as that; because, if the plaintiff were really guilty, the defendants would have been thoroughly justified in their entire conduct. Nevertheless, the jury could very well have been misled by the language of the court. These two rulings, therefore, are fatal to the case.

That brings us to consider what we shall do with the case after having found these errors. That is to say, whether we ought to send the whole case, against all the defendants, back for a mew trial, or to act conclusively and finally with regard to a portion of them, It was insisted that there was evidence, as against all of them, which the jury had a right to consider in determining whether they took part in the arrest actually made. If the case had been disposed of on the motion made at the conclusion of the plaintiff’s testimony, there would not have been a particle of evidence to connect Miller or Hitchcock with the case in any capacity.

It was not shown by the testimony that Miller was attorney in the case. All that was shown merely amounted to this: that the police officer Carter and the defendant Porter came into the plaintiff’s room; that Porter said nothing, but that Carter made the arrest; that the plaintiff put on his coat ’and went down stairs, and as he passed out he saw Miller and Hitchcock. What of it? He might have seen any two persons standing there. It was a boarding house, and any of the boarders might have been standing there. No connection whatever is shown between Miller and Hitchcock and the officer making the arrest, except that they followed him and the plaintiff to the police station, where the plaintiff was left. He was not then locked up, but was left there, and the defendants went away. There is, we think, nothing in that which could connect them with the arrest. But the defendants went on to give testimony in their own behalf, and their evidence furnished the only ground to the plaintiff to argue their connection with the case.

Our conclusion is that, with regard to Miller and Hitchcock, there was no sufficient legal evidence indicating that Hitchcock did anything, and no sufficient legal evidence that Miller did anything but advise his client that an arrest should be made. We, therefore, make our judgment of reversal final as to them.

As against Porter, however, we think there is enough in the case to entitle the jury to consider the question of his connection with the arrest.

We, therefore, reverse the judgment below finally as to Miller and Hitchcock, and send the case back for a new trial as to Porter.  