This was an action commenced by the appellee against the appellants, in the Marion Circuit Court, and by change of venue taken to the Morgan Circuit Court, where it was tried by a jury, resulting in a verdict in favor of the appellee, in the sum of nine hundred dollars. A motion was filed, in which the appellants and each of them moved the court for a new trial, and assigned nineteen causes for the motion. It was overruled, and judgment was rendered .on the verdict. Exceptions were taken to the action of the court in overruling the motion for a new trial, and a proper bill of exceptions was filed. We do not deem it necessary at this time to state the causes for a new trial set out in the motion.
The errors assigned are, 1st. That the court erred in overruling a demurrer to the second paragraph of the complaint. 2d. That the court erred in sustaining appellee’s demurrers to the answer of the appellants to the complaint. 3d. That the court erred in overruling the motion for a new trial.
The original complaint contained one paragraph. To that the defendants filed separate answers of general denial. A jury was impanelled, and after hearing a part of the evidence, on motion of the defendants, leave was granted to them to file an amended and additional answer, and the jury was withdrawn. Afterward, on motion of the plaintiff, he had leave to file an amended complaint. Under that leave he filed a second paragraph. A motion was made to strike out parts of the amended complaint, which was overruled, and an exception taken. A joint answer was then filed to the whole complaint, in two paragraphs; first, the general denial; second, a justification. After an unsuccessful motion, made by plaintiff, to strike out parts of the second paragraph of the answer, a motion was made and sustained, requiring the defendants to. separate and number the paragraphs, to which they excepted and filed a bill of exceptions. Under that ruling and requirement of the court, the
No question is made as to the sufficiency of the first paragraph of the complaint. Neither the demurrer nor the assignment of errors reaches that. The demurrer was filed to the second paragraph, and the ground assigned was, that it did not contain facts sufficient to constitute a cause of action, and that there was a misjoinder of causes of action set out in the two paragraphs.
The first paragraph of the complaint is for a false imprisonment. The second contains a full history of the alleged grievances of the appellee against the appellants. It is very long and, in some things, unlike anything that we have ever met with before. We have had some difficulty in determining what is the gist or gravamen of the action in that paragraph. It alleges that the defendant Boaz was acting Lieutenant of police, and the defendant Umversaw was acting Marshal of the city- of Indianapolis; that they attempted to'provoke and induce him to violate the penal laws of the State and the ordinances , of the city, that they might have a pretence for arresting him; failing to do so, they arrested him on the false charge of profane swearing, and took him to the county jail, when the other defendant, Parker,‘by his jailer and turnkey, joined in the conspiracy against him, and received him from them, and confined him. in jail as a prisoner, refusing to receive bail until ordered to do so by the city judge; that when he had procured bail, they preferred other false charges against him and refused to discharge him until he gave bail. It also states that the appellee was possessed of property, both real and personal, of the value of several thousand dollars; that the arrest and imprisonment were unlawfully and maliciously made on false charges and without warrant, or written, or reasonable, or probable cause; that he was afterward tried and acquitted on two of the charges; and that as to the other, it was shown
It will be observed that It is alleged that the appellee was arrested and taken to jail by the city officers and there imprisoned, without any. warrant and without reasonable or probable cause. The gravamen of the action, we think, is for the illegal arrest and imprisonment, and not for malicious prosecution. All that is said about the motive of the defendants for the arrest and imprisonment, or the circumstances connected with or attending them, can make no difference with the real ground or cause of action, only by way of aggravation. Although the code has abolished all distinctions between actions at law and suits in equity, and provided that there shall be but one form of action for the enforcement of private 'rights and the redress of private wrongs, legal principles remain unaltered. There has been no attempt made to change or modify them. The rights of parties remain and are adjudicated upon and settled under the same rules.and regulations, except as to the form or name of the action. Before the code, if the plaintiff mistook the form of action, or sued at law when his remedy was in equity, or filed a bill in chancery when he should have sued in an action at law, he failed in his action without regard to its merits. Such results are now avoided, and parties may demand and courts grant relief according to the allegations and proofs. Before the code, the judicious lawyer investigated and made a thorough examination of the law, before commencing -suit, to enable him to determine, amongst other things, to which class of actions his belonged, and under which form of the class it was to be brought. In some particulars, different rules were applicable in the different forms of actions. Then, the evidences of a thorough lawyer were
In Seeger v. Pfeifer, 35 Ind. 13, Downey, J., on page 15, says: “ The distinction between false imprisonment and malicious prosecution is pretty well established. When the arrest is upon valid process issued by a court having jurisdiction, trespass for false imprisonment will not' lie, though such arrest is maliciously procured by the prosecutor without probable cause.” In Colter v. Lower, 35 Ind. 285, on p. 286, the same judge says : “ If the imprisonment is under legal process, but the action has. been commenced and carried on maliciously and without probable cause, it is malicious prosecution. If it has been extra-judicial, without legal process, it is false imprisonment.” He refers to Turpin v. Remy, 3 Blackf. 210, and Johnstone v. Sutton, 1 T. R. 544. “Trespass is the only form of action for an assault and battery where the action is brought by the party injured.” 1 Saund. Pl. & Ev. 142. Case lies in general to recover damages for torts not committed with force actual or implied. 1 Saund. Pl. Ev. 715. So where process, upon which the party is arrested or held, is irregular, trespass was the proper form. 1 Saund. PI. & Ev. 717. Without, accumulating authorities, we think the rule was correctly laid down in Seeger v. Pfeifer and Colter v. Lower, supra, and we must hold the second paragraph good as for a false imprisonment, and not for malicious prosecution. The gravamen of the action is for arresting and imprisoning the plaintiff without
Both- paragraphs are for the. same cause of action, false imprisonment. The r-ules of law relating to-actions of trespass for false imprisonment, and not for malicious prosecution, must govern in deciding the case. We suppose that this view, was not considered in. the court below. Perhaps the appellee did not intend to. frame the second- paragraph so as to. make, it an action for false imprisonment exclusively ; but by his averments, the fact of an arrest under legal, process, is,absolutely excluded. Manifestly, the attention of the learned judge before whom the cause- was tried was not called particularly to the paragraph during the trial.
The appellants‘filed joint answers to. the whole, complaint, and justified- as public officers under the. laws- of the State and- certain ordinances of the city of Indianapolis. Their official character is alleged to be the. same, as stated, in the second paragraph-of the complaint, and the grounds of. the arrest, the violation of the criminal laws of the State and the ordinances, of the city on view of the marshal, and- that he and the lieutenant of police arrested- him for the offences named; that the offence was committed and the arrest made in the night, time, so that there- was, no. court in session before whom he. could- be taken; that they immediately conveyed him to- the jail of the county and then requested the turnkey of the- sheriff to receive,- him as- a, prisoner, on the charge for which he was arrested; that the turnkey did so receive him, after- he was informed of the reason of. his .arrest, and not before, when he took him into his, custody and committed him to jail, and there detained him for one hour, when he was released on, bail by order of the city judge; that the- plaintiff was convicted of the charge fern which he was arrested, on being arraigned the next'morning; and that he was guilty as charged. The defendants aver that all they did in the premises was wholly without malice;
The answer consists of four paragraphs; the general denial and three affirmative paragraphs, each of the affirmative paragraphs setting up the particular offence of which the plaintiff was alleged to have been guilty, and for which he was arrested. In their general feát'ures they are the same. Separate demurrers were sustained to those paragraphs.
The city marshal has' authority to arrest within the city, without” process, all persons, who, within his view, comihit any crime or misdemeanor,' or violate ariy ordinance of the city and take them before the mayor or other’ officer having jurisdiction of the offence with which the persons so arrested are charged, and detain them in custody until the cause of the arrest has be'eh investigated. He may also, without any writ or order of attachment, confine ariy person guilty of ariy offence against’ the penal laws of the' Státe or ordinances of the city, in the city watch-house, or prison, or county jail, if the arrest'be made when' the court having jurisdiction of the offence with which the person so arrested is charged shall not be iri open session', uritil there shall be an opportunity to bring hifn before the proper court' for trial, not exceeding eighteen hours, unless by order of the court, etc. 3 Ind. Stat. 75, sec. 29.
The ordiriarices of thé city require' that the patrolmen of her police force shall arrest' and take before' the mayor, with or without process, all persons caught in the act of violating any ordinance of the city, or' perial law’of thé State,' and
Each of the paragraphs to, which demurrers were sustained stated that the plaintiff had been guilty of a violation of some criminal law of the State, or ordinance of the city, stating that the offence was committed on view of the appellant, the city marshal, and that the arrest was made “ then and therethat the city had no jail or prison of its own, and that the county jail had been adopted for that purpose ; that the appellant Parker, through his turnkey, received the appellee from the city officer having' him in custody on such arrest, in the course of his duty as jailer, after being told that they had arrested him for the offence in view, using no more force than was necessary.
We are referred by the appellee to Low v. Evans, 16 Ind. 486, to show that the arrest was without authority. That case was decided under the act of 1857, for the incorporation of cities. Under that act, the marshal was the chief ministerial officer of the city, and invested with the' powers of a constable therefor. He was authorized to execute and return all process directed to him by the mayor or city judge, or order of the common council, and he might also execute process directed to him by any justice of the peace of the city. It was his duty to suppress all riots and disturbances of the peace, and arrest persons guilty of the same, 1 G. & H. 221, sec. 23. His authority under the act of 1867 is much, more extensive. 3 Ind. Stat. 75, sec. 29, supra. By that act he has authority to arrest without process all per
The appellee insists that the officers arresting him and the sheriff’s bailiff were authorized and'required to take bail,
The appellee also insists that the arrest must be made immediately after the commission of the offence, to justify the officers for making it without warrant and as on view, and we are referred to Commonwealth v. Carey, 12 Cush. 246, to sustain him. That does not sustain the doctrine contended for. What was held in that case was, that a constable or other peace officer could not arrest one without a warrant for a crime proved or suspected, if such crime were not an offence amounting in law tp a felony. In Addison Torts, 557, it is said: “If an assault be committed within view of a constable, he has: authority to arrest the offender at the time, or as soon after as he conveniently can, so as to come within the expression ‘ recently,’ not only to prer vent a further breach of the peace, but also to secure the offender for the purpose of taking him before a magistrate.” The complaint alleges that fifteen minutes elapsed between the commission of the offence and the arrest, but it does not appear that it could have been made earlier. We think the answer not defective for failing tp answer that allegation.
The complaint alleges that the defendants arrested and imprisoned and detained him pn the pretended and false charge of profanity; that after he had given bail for that
An answer had been filed, containing a paragraph justifying each of the several acts' of trespass alleged in the complaint. On motion of the plaintiff, the court required the defendants to separate and number the paragraphs, so that each paragraph should contain only a justification for one alleged trespass. The defendants excepted to the ruling of the court and saved the question by a bill of exceptions, but failed to assign it as error, and the question is not before us for our decision.
The cause was submitted to a jury for trial on the general denial, and a verdict rendered for the appellee, as hereinbefore stated.
It will not be necessary to notice all the reasons assigned for a new trial in the appellants’ motion. Some are not available reasons for a new trial, and some are abandoned in this court. Those relied upon for a reversal of this cause relate, to instructions given and refused and the damages assessed by the jury.
The court was asked to instruct the jury, that in order to maintain the action, they must find from the evidence that the acts of the appellants complained of must have been done maliciously and without probable cause. We think the court committed no error in refusing such instructions. The action was for false imprisonment, and not malicious prosecution, and it was not necessary to prove malice or want of probable cause. Colter v. Lower, 35 Ind. 285. The averments of malice did not change the gravamen of the action. They only tended to show aggravation. We do not think it necessary to copy the instructions relating to that question,
The court committed no error in refusing to give the instructions asked relative to the protection of the officers, in making the arrest, as a full and complete defence to the action. Demurrers had been sustained to the answers justifying the arrest and imprisonment. Such defence was not available under the general denial. Sec. 91, 2 G. & H. 113; Wood v. Mansell, 3 Blackf. 125 ; Lair v. Abrams, 5 Blackf 191; Johnson v. Cuddington, 35 Ind. 43.
The eighth instruction asked by appellants and refused required the court to instruct the juiy, that if Parker was not personally present when the appellee was arrested' and imprisoned and did not know of such arrest and imprisonment until after his discharge, and that if it was not by his procurement, they should find for him. The instruction was correctly refused. Parker was liable for the acts of his deputy, or jailer, within the scope of his authority. Addison Torts, 931.
The appellants in their eleventh instruction asked the court to charge the jury, that they had no authority to fix the bail and take a recognizance of the appellee, until the amount had been fixed.by the city judge, and that they had no right to receive in pledge any article of value as security for his appearance, and that their failure to do so was no evidence of malice. The court refused to give it, but gave the following as a substitute: “I think the jailer had no right to fix 'bail, therefore his refusal to fix the bail was not evidence of malice ; but the fact that he had no right to fix bail would not authorize him to put the plaintiff into a filthy place, amongst drunken men, even if fie had the right to detain him in custody.”
The complaint alleged that the appellee had offered to give to the appellants property in pledge for his appearance to answer the charge for which he was then under arrest; that they had refused to take it and discharge him, and had
We have said that the marshal had authority to arrest when the offence was committed in his view and, under certain circumstances, commit to jail; that such authority necessarily conferred upon the jailer the right to receive and imprison the prisoner. If he had the right to receive the prisoner when brought to him by the marshal with the declaration that he had been arrested for an offence committed on view, that declaration would stand in the place of a mittimus in other cases, and it would be the duty of the jailer to receive him as a prisoner, without regard to the question of his guilt or innocence.
The tenth instruction asked and refused recognized this doctrine. But it went further and told the jury that in such case they must find for Parker, the sheriff, and the court did right in refusing it, because there was no answer justifying his acts as jailer.
There is one other question in the case, and that is how far the appellants are liable for the acts of each other. If there was a conspiracy between them or any two of them, each of them engaged in the conspiracy is liable for the acts of the other, done in pursuance of the conspiracy. So
The judgmentof the said Morgan Circuit Court is reversed, with costs; and the cause is remanded, for further proceedings in pursuance of this opinion, with leave to both parties to amend their pleadings.
Petition for a rehearing overruled.