Holmes, J.
1, The malicious prosecution alleged in the second count was for fraudulezztly evading the payment of fare by leaving a car without having paid it. The evidence in the case at bar was that the plaintiff was arrested before he attempted to leave the car, and it also would have warranted a finding that the conductor who made the complaint believed the plaintiff’s story, azzd did not believe that the plaintiff was attempting a fraudulent evasion of any sort. There was evidence, therefore, that the complaint was made without probable cause. Krulevitz v. Eastern Railroad, 140 Mass. 573.
2. The conductor did not arrest the plaintiff at once, nor did he arrest. him at all in person, but, when the tz-ain reached Salem, pointed him out to other officers, who made the arrest at *232the conductor’s request. This was not necessarily, and as matter of law, an arrest by the conductor in his capacity of railroad police officer. The jury were given to understand that they might take this view of the facts, which would regard the conductor’s request as made in his capacity of officer, and the other officers as his servants. But it was also possible to find that the request to the officers was made by the ■ conductor only in the capacity of conductor; in other words, that he simply made a complaint to them, just as he might have done if he had not been an officer himself, in which case the arrest was not made by him as railroad police officer. This was the view taken by the jury, and it follows that the arrest was not justified by the statute. The statute does' not authorize an arrest by officers not present when the offence is committed, upon complaint by a conductor. Pub. Sts. c. 103, § 18. It was not denied that the conductor caused the arrest to be made, or that he was acting within the scope of his employment, so far as to make the defendant liable for his tort. The only question was in what capacity he acted. If the arrest was unlawful, it was an assault and a false imprisonment by the defendant. Cody v. Adams, 7 Gray, 59. Smith v. Bouchier, 2 Stra. 993.
¡Exceptions overruled.