The opinion of the court was delivered by
Kinsman, C. J.:
i. peaotici:. Challenge ofju* codtlo^iiued! *104_but act of themTor!ome' *103The first error alleged occurred in selecting a jury. The juror was challenged for cause, on the ground that he had once already served on a jury as a talesman on the trial of a cause at the same term of the court. The court overruled the challenge. ° This was error. Civil Code, § 270. It appears that after the juror had served as a talesman, he had been called to serve as a regular juror for the term., in place of a juror excused. This made no difference. The law remained the same; the challenge should have been allowed. The beneficent objects of the section could not be frustrated by placing a man on the regular panel who could not serve on a jury if challenged. The object of *104the law is to get rid of professional jurors, a most pestiferous set, as every lawyer knows; and this could not be done away with by a sheriff or court, by putting such a juror on the regular panel. The juror was afterwards challenged peremptorily by plaintiff in error, and thus removed from the jury. The record does not show that the defendant exhausted his peremptory challenges. These facts bring the case dire.ctly within the ruling of this court in the case of Morton v. The State, 1 Kas., 468. “ By this means the defendant seems effectually to have relieved himself from the grievances of which he complained;” and the case will not be reversed for an error of the court which the party cures by his, own action.
2.issues: what, minen. *1053. Answer: Efs?onB°ond^n¡ri_ aospioven. *104II. The next error claimed is, that the court erred in the charge to the jury; and special attention is called to the sixth instruction, which is as follows: “ That the letter of instruction of commissioner Mix, does not justify the illegal act of agent “ Wiley. He is answerable in damages to the plaintiff “for any illegal act.” The plaintiff in error claims that by this instruction the court told the jury that Wiley did do some act to Keokuk; and that such act was illegal, und that tho letter of commissioner Mix did not justify such illegal act. It is apparent from the record that the court did do just what it is claimed that it did. The indication of the court is too plain not to have been understood by the jury. Hid the pleadings and evidence authorize such an instruction ? The jury are only to pass upon the issues made up. in the case. They pass upon the controverted facts; that is, the facts controverted by the pleadings. In this case the petition alleged an assault and battery, and false imprisonment. The *105answer sec up two grounds of defense, first, a general denial, and second, a special defense showing what the defendant had really done, and attempting to justify his acts by these facts. This second defense was an admission that the defendant was the primary moving cause of the arrest and imprisonment of the plaintiff, and an attempt to justify his conduct therein. Now, notwithstanding the general denial, we suppose that whatever was admitted in the special defense need not A have beep proved. This special defense so far modified the general denial that whatever was admitted therein was excepted from the general denial. It ought to be so, on general principles of pleading. It must be so, inasmuch as it is a formal confession of the existence of the facts therein set forth. A careful examination of the answer has convinced us that, had there been no evidence in'the case the court would' have had to give nominal damages at least, on the pleadings, as they stood; and to do so, would necessarily have held that in the answer there was an admission of facts which made the defendant guilty of an illegal act in causing the arrest and imprisonment of Keokuk. The court then committed no error in telling the jury, as it did, that had been guilty of an illegal act towards plaintiff; and, of course, there can be no justification in law for an illegal act. Where there is justification in law, there is no illegality. As the pleadings had admitted the acts done, it was proper for the court to so say to the jury; and it was its duty to say to them that such acts were illegal, if such was the law.
Nor do we think this ruling is at all in conflict with the case of Carl Horne v. The State, 1 Kas., 42, to which we have been referred. The plea of not guilty in that *106case put everything in. issue, and it was necessary for the State to prove every fact essential to make up the crime; and every such fact was to be passed upon by the jury, unbiassed by anything the court might say. In this case it was the duty of the court on the pleadings to say that the judgment must be for the plaintiff, and it -was proper to say so to the jury; and the court did no more at most, in the instruction under consideration.
5. damages. e.xnumved;wlien III. The seventh and eighth instructions are objected to/ They are as follows; 7th.-“ "Whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy, the law allows the jury to give what is called exemplary or vindictive "damages.” 8th.-“In cases of torts, and actions for false imprisonment, the jury are the only proper judges of how much the plaintiff ought to recover.”'
*107♦— principle approved; *106These instructions raise the question, so much discussed of late by writers upon law, as to whether such damages as are called exemplary, vindictive or punitive ought ever to be allowed. We content ourselves with following the current of authorities, and decide that the instructions go no further than such authorities warrant. If the law is wrong, let the law-making power correct it. The rule as laid down hy the court below has already received the sanction of this court. — Malone v. Murphy, 2 Kas., 250. The whole subject is discussed pro and con, and the authorities referred to, in 2 Greenleaf’s Ev., §253, and note, and §§254, 255; and Sedg. on Damages. 4th Ed., p. 533, and note. And after all this discussion, the Supreme Court of the U. S. decide the law as laid down in these instructions. Mr. Justice Grier, delivering the opinion of the court well says : “ If repeated judicial decisions for more than a century are to be received as *107the best exposition of what the law is, the question will not admit of argument. By the common as well as by statute law, men are often punished for aggravated misconduct, or lawless acts, by means of a civil action, and the damages inflicted by way of penalty or punishment, given to the party injured.” We have no doubt that such is the law. Whether it be founded in sound reason or not, is not so much our province to say, as to determine if it be law. The writer hereof believes it to be not only good law, but founded on sound princi- " ° x pies, and beneficial in its application. It often furnishes the only' restraint upon a bad man, who cares little for his neighbor’s character, his person, or his property. The party injured pursues the wrong-doer to. punishment, when society is too careless to do so.
— even if parSim¡i.a”ploseIt is claimed however, in this ease, that the action being' for assault and battery, which is punishable by ci’iminal proceedings, if exemplary damages are allowed then the wrong-doer is liable to be punished twice. To this, two answers may be made, each of which is satisfactory. While the action is for assault and battery and false imprisonment, the evidence only showed a false imprisonment; and the plaintiff fails to show how that is made a criminal offense. Second, the great weight of authorities is against such a modification of the doctrine. In Massachusetts, Indiana, and North Carolina, such limitation has been engrafted upon the doctrine of exemplary damages; but in most of the states it has been rejected, and we think rightfully.
These reasons render it unnecessary to consider at length the instructions asked by the defendant and refused, for they are the direct converse of those given, *108asking the court to say that the jury could only give a verdict for the damages sustained, o,r “ actually sustained.” The petition contained the usual averments formerly found in actions for assault and battery, and false imprisonment, and the jury were authorized under it to give exemplary damages. As we understand the law, the instructions asked laid down a much more limited rule, and consequently ought not to have been given.
Facts of the case di.ouH.8d, IV. On a motion for a new trial it was insisted that the verdict was against the law and the evidence;- and two reasons are urged in support of the position. First: That the evidence did not show a state of facts that would authorize a recovery against Wiley. Let us see: Wiley was agent for the Sac and Fox Indians, of which tribe Keokuk was chief. Commissioner Mix had directed that no delegation from any of the tribes should visit Washington, as there was no appropriation to pay their expenses. This letter, as was one from Superintendent Murphy, was read by Wiley to Keokuk, and others, on the 16th of November, 1868. Keokuk said he should go, as he had money and would pay his own expenses. On the 22d of November, Keokuk and four others of the tribe, started for Washington, without license so to do. They were overtaken by Wiley, at Lawrence, on the next day. Wiley on that day went before a United States Commissioner for the district of Kansas, and made a complaint in writing, under oath, charging “ that Keokuk a Sac and Fox Indian, of the Sac and Fox Reserve, in the county of Franklin, in the district and State of Kansas, did on the 22d of November, 1868, leave said reserve, and did disobey the orders of the United States Commissioner of Indian Affairs, and the order of other agents of the United States to him *109given,” and asking that Keokuk be apprehended and dealt with according to law. On this affidavit a warrant was issued, and Keokuk arrested by the United States Marshál and brought before the Commissioner. Wiley employed counsel, and testified in the case; and thereupon the commissioner decided that Keokuk should give bail for his appearance at the next term of the United States Court for the District of Kansas, and directed the marshal to take him into custody. Keokuk refused to ■give bail, and was taken to jail, and kept there till he was released upon habeas corpus.
This is a sufficient outline of the testimony in the case to understand what is deemed necessary to say on the point under consideration. The complaint made by Wiley charges no offense on the part of Keokuk; neither did the warrant or mittimus describe any offense known to the law. The substance of the complaint is stated above, and the warrant and mittimus generally follow it; though in this case the mittimus is more verbose, as though the commissioner felt it necessary to say something more than that Keokuk had left the Reserve and was traveling to Washington, to justify his act in sending him to jail. Still, no offense is charged known to any system of laws of which we have any knowledge. The facts are so barren as not to lay the foundation for jurisdiction. The affidavit, warrant, and mittimus afford ample evidence that no criminal charge was preferred, or passed upon, nor a.sufficient pretense of one to challenge judicial discretion; and this conclusion sweeps away the gi-oiind on which the decisions rested, to which the-plaintiff'in error refers in his brief.
The second reason urged why the verdict should have been set aside is, that “ the plaintiff below was an Indian, *110“ and as such was subject'to the power and right of the “United States to make such regulations for his govern“ment as the Presidént of the United States should deem-“proper, and for the interest of the tribe to which he “ belonged ; or, in other words, Keokuk was then a ward “ of the government, and if the government should think “ it for the interest of Keokuk, or his tribe, to restrain “him from going to Washington, it had a clear right so “to do.” We are not prepared to give our sanction to the doctrine above set forth; but might well do so, and not disturb the action of the court below, for we are nowhere shown any law of the United States, or any regulation of the President, that makes it a punishable offense for an Indian to go to Washington at his own expense. Nor does the letter of the commissioner, or superintendent. But we suppose that nothing but a law would avail as a justification for arresting and imprisoning a man. If it is necessary to elucidate this point, then indeed have we learned little of the principles of a government professedly based on law. Nor does it make any difference that the party injured is an Indian, whether he be regarded as “ a ward of government,” or as belonging to a “ domestic dependent nation,” or “ a distinct independent political community, retaining their original natural rights” — to each of which classes they have at times been assigned by the language of the Supreme Court of the United States. In any view, while keeping the peace, and disobeying no law, human or divine, he cannot be the subject of arrest or imprisonment by any one, except at the pevil of the offender. His rights are regulated by law, and when he appeals to the law for redress, it is not in the power of any tribunal to say, “you are an Indian, and your rights rest in the arbitrary decrees of executive officers, and not in the law.”
*111We shall not disturb the decision of the court below for the reasons assigned, and having examined the record, and all the alleged errors, and finding no reason to reverse the judgment of the court below, the same will be affirmed.
Sarrord, J., concurring.
. Valentine, J.:
I agree with the court upon all questions of law, and of fact, in this case, except, that I do not think that the answer of the defendant Wiley, in the court below, bears the .construction put upon it by this court.