
    Homer R. Josselyn v. George L. McAllister.
    
      False imprisonment: Evidence of malice: In mitigation. The demeanor of a party arrested in an action for a false imprisonment at the time of his arrest, is not admissible as evidence of malice in causing the imprisonment which was the foundation of the action. Statements having the effect of admissions bearing upon the tortious proceedings would be admissible, but not conduct and language not having such reference.
    Advice from counsel to client, under the influence of which an alleged false imprisonment took place, will not, though followed in good faith, necessarily establish a justification. But if it showed facts of such a nature as to indicate that the party believing them may have acted upon them without improper motives, they would be admissible upon the question of malice. What a party may say himself to his attorney, in explanation of his conduct, is inadmissible.
    An agent having commenced proceedings on behalf of his principal, by which he has rendered himself liable for a false imprisonment, cannot defend himself by showing that he acted under instructions; nor will he be allowed to show similar proceedings, under similar circumstances, elsewhere, in mitigation.
    
      False imprisonment: Pleading and evidence: Maturity of action. In an action for a false imprisonment, the recovery -will not be limited to nominal damages because there was no allegation or proof of special damages. See Page v. Mitchell, 13 Mich., 63.
    
    An action for a false imprisonment on an illegal civil arrest may be maintained before the proceedings are terminated by a judgment. Whether it may in an action for a malicious prosecution: — Qucere?
    
      Charge to jumy. The reading of a passage from a text-book, instead of embodying it in the written charge, it not being seasonably objected to for that cause, is-not error.
    
      A party has no right to complain of a charge, if it was given in terms as favorable and as clear as if It had been given in his own language; and if the charge, as applicable to the facts before the jury, sufficiently protects the party who excepts, the verdict will not be disturbed.
    
      Heard January 5.
    
    
      Decided April 5.
    
    Error to Hillsdale Circuit;.
    This was an action on the case brought by George L. McAllister in the Circuit Court for the County of Hillsdale against Homer E. Josselyn, for false imprisonment and malicious prosecution. The declaration contained two counts for false imprisonment and assault, and two for maliftous prosecutions at the suit of the Singer Manufacturing Company; averring an arrest in each suit by a capias, upon which an order holding to bail was indorsed, founded upon an affidavit made by Josselyn, — one on the 26th day of May, 1869, and the other on the 21st day of July, 1869. The declaration further averred, that the attempt to imprison or detain him had been abandoned. The
    defendant pleaded the general issue. The cause was tried by a jury. The evidence for the plaintiff showed that he was twice arrested, as laid in the declaration, — the first time on the 7th of June, 1869, and was in custody nine days; and the second time on the 23d of July, 1869, and was in custody eleven days, — from each of which arrests he was discharged by a writ of habeas corpus.
    
    The dealings between the plaintiff and the Singer Manufacturing Company, whose agent at Hillsdale he had been, were fully presented to the jury. The questions which arose upon the admissibility of evidence are mainly those which relate to the conduct of Josselyn, who, as general agent of the company, had caused the suits to be, .commenced, and the advice under which he acted,, and are stated in the opinion of the court.
    At the close of the plaintiff’s case, and before proceeding to the defense, the counsel for defendant moved the court to instruct the jury to find a verdict for the defendant of no cause of action, for these reasons: — 1st. Because the declaration is for malicious prosecution, and' the stipulations filed for discontinuance show that the prior suits were not determined when this suit was commenced. 2d. Because there is no count in the declaration alleging abuse of legal process in suing out a second capias while the first suit on capias, for the same cause was undetermined.
    The court denied the motion, and refused to instruct the jury as .requested; to which the defendant excepted.
    The court charged the jury as follows: “Inasmuch^® it appears in evidence that the capias suits commenced by the Singer Manufacturing Company against George L. McAllister, were not ended at the time this suit was commenced, it is the duty of the court to instruct you that the plaintiff cannot recover on the third and fourth counts of the declaration for malicious prosecution. You will understand that the charge of the court relates entirely to the first and second counts for false imprisonment. You must be satisfied from the evidence that the defendant Josselyn made the affidavits and procured the arrest of the plaintiff without probable cause, and that he was actuated by feelings of malice. Probable cause means a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief, that the party accused is guilty of the offenses with which he was charged.
    “ The defendant Josselyn, in the affidavit which he made to procure the arrest of plaintiff, in substance charged the plaintiff with fraudulently converting to his own use certain moneys which he had received belonging to the Singer Manufacturing Company. The law protects the defendant if, at the time he .made the affidavits and procured the arrest of the plaintiff, he had reasonable or probable cause for the statement he made, — that the plaintiff had fraudulently refused to pay over moneys received by him belonging to the Singer Manufacturing Company, and had converted the same to his own use, — that is, if he had such, ground as would induce a man of ordinary prudence and discretion to believe in the guilt of the plaintiff, and if he acted in good faith on such belief. Malice express or implied must also be established.”
    The court read to the jury the following from 1st American Leading Gases, page 226, at the same time saying-that he had not had time to copy it into his charge, but would do so before his charge ivas filed with the clerk, viz: “ ‘ Malice implied or express must also be established;, but the word is to be understood in its legal sense, in which it generally appears to be used as the opposite of bona fides. It is not necessary to prove malice in the ordinary sense of' the word; any improper or sinister motive would be sufficient. Malice may be inferred. Malice in law means an act done wrongfully and without reasonable and probable-cause, and not, as in common parlance, an act dictated by angry feeling or vindictive motives. Malice has a technical meaning, and is not to be considered as in the common conversational or classical sense. Any prosecution carried on, knowingly, willfully and wantonly, or obstinately, tor-no purpose or end of justice or redress, but merely to the vexation of the person prosecuted, I conceive to be malicious.. Malice is in all cases a question of fact for the jury, but want of probable cause is.sufficient to authorize them to presume malice without express evidence.’ If the defendant laid all the facts of the case fairly before his counsel upon beginning proceedings, and acted in good faith upon, the opinion given him by counsel, however erroneous that opinion may be, he is not liable to this action; but if he misrepresented the case, or if he does not act in good faith under the advice he has received, and knows or does not believe that there was any cause to make the affidavit or procure the arrest of the plaintiff, he is not protected, and it is for the .jury to determine whether he acted in good faith and honestly believe’d the statements contained in his affidavits to be true.”
    Defendant excepted to all that portion of the charge which discussed the question of malice and want of probable cause, and which referred to advice of counsel.
    Under the charge of the court, the jury found a verdict for the plaintiff of three thousand dollars, and the judgment entered thereon, the defendant below brings into this court by writ of error.
    
      H. M. & W. E. Cheever and S. Larned, for plaintiff in error.
    
      Geo. A. Knickerbocker, Ezra L. Koon, and Q. A. Stacy, for defendant in error.
   Campbell, Ch. J.

The action below was for false imprisonment, and malicious prosecution, the injuries complained of having been two successive arrests, on what was claimed to have been an insufficient showing in law. The counts for malicious prosecution having been otherwise disposed of, the case went to the jury on the counts for false imprisonment, and judgment was rendered for the plaintiff below, and is now removed into this court for review.- The, errors complained of, although the number of assignments is considerable, d'o not involve many different questions, and may be disposed of without taking them all up separately.

The plaintiff below was allowed to show the temper and demeanor of Josselyn when arrested in the present action, and gave proof of angry conduct and expressions on that occasion and subsequently. This evidence was introduced to show malice in Josselyn, at the time he made the affidavits for McAllister’s arrest, some months before. We think such evidence was not proper for that purpose. His declarations and admissions concerning the former transaction would be evidence against him, and seem to have been received without objection. But the mere fact that he was vindictive and sullen when arrested himself has no bearing on his state of mind when he was causing some one else to be arrested. It is not so uncommon for men to be enraged by an arrest, as to make their anger unaccountable without looking beyond the arrest. Whatever admissions Josselyn may have made bearing on the former proceedings were admissible; but his conduct and language not having such reference should not have been laid before the jury.

There was evidence that some negotiations had been had through the medium of Mr. Oheever, one of the attorneys of Josselyn, in regard to a settlement of the matters out of which the arrests complained of originated; and the court below refused to admit proof of what Cheever told Josselyn concerning that arrangement.' Such evidence would not establish a justification; but if it showed facts of such a nature as to indicate that the party believing them may have acted upon them without improper motives, and in honest good faith, we think it would bear somewhat upon the question of malice, and should have gone with the other facts, to be considered with whatever else appeared to throw light on the spirit of the prosecutions. But we do not think there was any error in rejecting Cheever’s account of the transactions themselves; for upon the question of malice, in such a case as the present, the inquiry is not what the .facts were, but what Josselyn honestly had reason to believe and did believe they were. As no state of facts relied upon would have made the arrests lawful, the defense depends, so far as this class of testimony is concerned, purely on the consideration of malice.

We have had some doubt how far it was allowable after McAllister had been discharged from one arrest, for Josselyn to show his information from his attorney of the reason of that discharge, in excuse for making a second arrest on grounds substantially identical. But we think the testimony was receivable and relevant, as bearing on the spirit with which the arrest was procured; and its value would be determined by the entire circumstances. The rejection of Josselyn’s statements to Cheever does not fall within the same reason, and was correct, as no one can maintain his case on his own statements to witnesses concerning facts.

We are unable to see any legitimate bearing the instructions received by Josselyn from the company that employed him could have on any of the issues in the case. Whether he had followed them or departed from them in dealing with McAllister must be immaterial in determining the propriety of the arrest, which, so far as such facts bore upon it, could only depend on the dealings as they were, and not as they might have been. Nor could it in any manner tend to justify or excuse this arrest, that Josselyn had been in the habit of procuring the arrest of others under similar circumstances. Wrongs are not lessened by repetition, and no one can be held less aggrieved, because others have been prosecuted in the same way.

The remaining questions relate to the charge of the court. A question was made on the argument whether the entire charge was not vitiated by the course of the judge in reading orally from a text-book á passage relating to one of the matters under consideration, with a statement that he would afterwards insert it in his written charge, instead of embodying it there in writing in the first instance. Upon examining the bill of exceptions, we do not find that this course was objected to, as no seasonable exception appears, that is not directed to the substance, rather than the manner of the instruction; and as the judge announced at the time that he was about to pursue this course, he would probably have changed his method if any suggestion had been made to him that it was not agreeable to the defendant. This specific objection was not made till after verdict. It was too late, therefore, to raise the point, and we cannot pass upon it. We are therefore required to consider the substance of the charge as complained of.

The court having charged the jury that an action for malicious prosecution would not lie until the suit was terminated, directed the jury not to consider any of the counts, except those for false imprisonment, but refused to charge that no action would lie for false imprisonment before the termination of the suit on which the arrest was had.

We held when an application was made for a certiorari to remove the proceedings whereby the defendant in error was discharged from the arrest of which he complained, that the affidavit on which the capias issued, made out a cause of action resting in contract and not in tort, and that it did not come within any statute. — People v. McAllister, 19 Mich. R., 215. Since imprisonment for debt has been abolished, the rules which depended on the old state of things have lost much of their force, and the few eases in which arrests can now be made are peculiar and exceptional. The right to imprison does not depend at all upon the mere fact of indebtedness, but upon other facts. A person may be entitled to discharge from arrest, although liable to have judgment rendered against him, and the mere existence of a cause of action would not, therefore, show the propriety of a capias. If, under such circumstances, an action for malicious prosecution must be postponed till after judgment, — a point on which the state of the record does not allow us to pass, — it is very clear that there can be no foundation for any such doctrine when applied to actions for false imprisonment on civil arrests which are illegal All the mischief is done before the party is released, and n<3 matter ex post facto can legalize what was not theretofore legal. There is no reason why the right of action for such an arrest should be thus postponed, and we think the ruling below was not in violation of any rights of the plaintiff in error. No one can recover dam-' ages for a legal arrest and conviction, aud so long as the legality of the imprisonment may be affirmed by a subsequent conviction, as in criminal cases, there is a very solid reason why no action for malicious prosecution should lie while its character remains open to be determined. But the same principle would justify an action for false imprisonment, when no- subsequent finding can legalize it. As we have already passed upon the most complete and formal of the two affidavits on which the arrests were made, no question can now arise concerning their sufficiency, and as the plaintiff below himself requested the court to deny his right of recovery, unless malice was found, the only remaining' considerations relate to the rulings and refusals to charge bearing on that subject. But a question of some importance presents itself, as we compare the requests and refusals on the various points presented.

As the requests were made in writing, and not read to the jury unless granted, it is" manifest that they cannot in any case have been misled, by any refusal, into mistaking the ground of the refusal. If, therefore, the plaintiff in error has not been deprived, by such refusal, of any instruction he was entitled to have given to the jury, he has not been damnified. If his requests were wrong, or if the charge as given - was as favorable to Mm, and as clear as if it had been given in his language, he has nothing to complain of.

Th’e court charged the .jury that no recovery could be had if the defendant below, when he made his affidavits, had reasonable or probable cause to believe their statements, and acted in good faith on that belief, and that there could be no recovery unless he was actuated by feelings of malice, and explained probable cause as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party accused is guilty of the offenses with which he is charged. And malice was defined as an act done wrongfully, and without reasonable or probable cause.

And the court also charged that if defendant, before proceeding, laid all the facts of the case fairly before his counsel, and acted in good faith on that counsel’s opinion, however erroneous that opinion may have been, he was not liable in the action. But if he misrepresented the case, or did not act in good faith under the advice received, and knew or believed that there was no cause to make the affidavit or procure the arrest, he was not protected; and it was for' the jury to determine whether he acted in good faith, and honestly believed the statements in his affidavit to be true.

Upon comparing carefully the various requests and refusals,- we find nothing in any of them which would change the position of the case, if these charges were correct. The only points not distinctly presented by the charge as above given, were, first, a claim that the defendant’s belief in the justice of the suit against McAllister would exonerate him; and, second, that advice of counsel, given upon a full and fair statement of the case, would be a complete defense. The court held that the belief must include the right to enforce the claim by capias, and that the advice would not protect, unless honestly acted on.

We think the plaintiff in error had no reason to complain of any of these charges and rulings. The court held that an arrest under an affidavit insufficient on its face was not actionable without malice, and that while all the statements in the affidavits were positive, there was no malice, if the person making it had reasonable grounds for believing it to be true; and that he might rely implicitly upon advice of counsel, if he stated his case fairly and honestly. As the affidavit was not necessary to commence a suit, and was only made to obtain an arrest, the whole question of good faith must turn upon the purpose of the arrest, and not merely that of the right to sue. It would be impossible for the jury, under such a charge, to find a verdict without finding an absence of good faith. The definition of malice was the same that we approved in Brushaber v. Stegemann, and was, we think, correct. The charge was very carefully guarded, and could not have been made to protect the legal rights of the plaintiff in error more effectually if there had been no improper admission or exclusion of testimony.

The court was right in refusing to hold that only nominal damages could be recovered, when there was no allegation and proof of special damages. This question was decided in Page v. Mitchell, 13 Mich., R. 63. The jury may give general damages in such a ease, to be determined by the circumstances.

The judgment must be reversed, with costs, and a new-trial granted.

The other Justices concurred.  