This аction was brought by the appellant against the appellee for false imprisonment. The defendant, among other paragraphs of answer, pleaded the following, viz.:
“ And for further answer, defendant says that on the 8th day of July, 1873, the defendant was marshal of the town of Frankfort,” etc., “ duly appоinted, qualified, and acting as such; that at that date there was an ordinance in force, passed by the board of trustees of said town, and duly signed by the mеmbers - of said board, and attested by the clerk of said town, entitled ‘ an ordinance prohibiting the disturbance of the peace and other misdemeanors in the town of Frankfort,’ ” etc., “passed by the board of trustees of said town at ameeting held February 5th, 1873, a copy of which ordinance is filed herewith, and made part of this answer; that at the date mentioned in the complaint, to wit,” etc., “ the plaintiff was found by defendant, within the corporatiоn of said town of Frankfort,- at the hour of eleven o’clock, on the night of said 8th day of July, 1873, in a state of gross intoxication, so that he was unable to wаlk or stand without support from some other person; that when so found by this defendant' plaintiff was prostrated on the sidewalk of said town from the effects of intoxicating liquors; that in pursuance of his duties as marshal of said town, and in obedience to the ordinance aforesaid, defendant arrestеd plaintiff and conveyed him to the place designated and used by order of said board
The defendant further states that he usеd no more force or violence in making the said arrest than was necessary to convey the plaintiff to said jail; and that this is the imprisonment complained of by the plaintiff.
A demurrer was filed by the plaintiff to this paragraph of the answer, and overruled by the court. This is the only ■error alleged and relied upon. The ordinance, omitting the title, etc., is as follows:
“ Any person or persons who shall hereafter be guilty of ■drunkenness within said corporatiоn, or shall be guilty of disturbing the peace and good order of said town, or any ■of the inhabitants thereof, by rioting, fighting, or offering to fight, or by loud, boisterous, profаne, or indecent language in said town, shall, upon conviction thereof, be fined in any sum not less than one nor more thán five dollars, for each and every such offence, to be recovered before the proper j ustice of the peace of said town, and the marshal of said town is hereby required to be vigilant in enforcing the provisions of this section, and bringing all the offenders before the proper officer.”
The first objectiоn to the paragraph of the answer in question is, that the ordinance set out does not authorize the marshal to arrest offenders against it on viеw, and that a marshal can not arrest upon view unless the ordinance expressly
The statute first quoted authorizes the marshal, in- the-enforcement of the ordinances, to do what a constable may do in the еnforcement or for the violation of the laws, and the law next referred to shows that a constable may arrest those who violate the law in his presence. Putting the two-statutes together, we think they authorize the marshal of a town to arrest a person who is violating or who violates air ordinance of the town in his presence or view, whether the-ordinance expressly authorizes him to do so or not. The plaintiff was found drunk, at eleven о’clock at night, on a sidewalk in the town, was arrested, and put in the town jail*, until he was sober enough to be taken before the justice of the peаce, to be tried for a violation of the ordinance, when, the proper charge was made against him, to which he pleaded guilty. There is probably not a city or town in the State*, making any pretence to proper municipal government, that has not an ordinance in substance thе same as this, and whose-police officers do not constantly arrest, lock up, and afterward carry before the courts persons who viоlate its provisions. Such persons must learn that society has the right to protect itself against the evil influences of their example* and that they аre proper objects of municipal legislation*
It is further objected that the second paragraph of the answer is bad, for the reason that it does not identify the imprisonment justifiеd with that mentioned in the complaint* It alleges that the imprisonment, justified “is the imprisonment complained of by the plaintiff.” This is sufficient to identify the imprisonment mеntioned' in the second paragraph of the answer with the false imprisonment mentioned in the complaint.
It is also urged that if the marshal had the authоrity to ■arrest the plaintiff) he should have taken him forthwith, before the justice of the peace, and charged him upon oath with the violation of thе ordinance. The duty to take the •offender forthwith before the justice did not require the marshal to take his prisoner before the justice of the peace atso late an hour as eleven o’clock at night, and especially as the appellant was so much intoxicated as not to be conscious of what was passing. The answer alleges that the marshal did take him before Joseph Baum, a justice of the peace of said town, “as soon as the plaintiff was in a condition to be taken before a justice of the peace,” etc., and the copy of the justice’s proceedings shows that it was on the 9th of July, which was the next day. There was no ground for an action for false imprisonment under the circumstances. Boaz v. Tate,
There is no other question in the case.
The judgment is affirmed, with costs.