Wend. 31; Deyo v. Van Valkenburgh, 5 Hill, 242; Collett v. Foster, 2 Hurl. & N. 356. But the sheriff is still protected if the writ was merely irregular. Ib.

In civil cases it would seem that this liability of the client could not arise before the writ was set aside, unless it was absolutely void, so that its existence as a writ would not be recognized; for while the writ is in force, to sue for false imprisonment, if judgment had been entered, would be to discredit a judicial proceeding in a collateral action; and if the case had not terminated, it could not be known that it would not terminate in favor of the plaintiff in that action. The writ must therefore be set aside before suit is brought for false imprisonment. But where the judgment has ceased to exist, as by payment or discharge, it is not necessary to have the writ set aside. Deyo . Van Valkenburgh, 5 Hill, 242.

Quare as to the rule in the case of an arrest for crime? See Crepps v. Durden, 2 Cowp. 640, where an action was sustained against a magistrate, after an illegal conviction, before the same was quashed. See also Gray v. Cookson, 16 East, 13.

Upon this point of the liability of the client it is difficult to understand the case of Carratt v. Morley, above cited, except upon the hypothesis that it was supposed to be a necessary preliminary step to this action that even a void warrant should be set aside; which is too improbable. A void judgment even may be collaterally impeached; a fortiori, a void warrant. In the case referred to, it was held that the party who instituted the suit in which the void warrant was issued was not liable to this action; and for this Cohen v. Morgan, 6 Dowl. & R. 8, was cited. But that case was

an action for an arrest in a criminal proceeding; while in Carratt v. Morley the arrest was made in a civil action. There is a wide difference, it is submitted, between such cases. In a criminal case the party who prefers the charge passes out of sight upon the issuance of the warrant. He relates the facts and circumstances upon which he bases his charge, and the magistrate then takes the matter out of his hands and gives it to the State as plaintiff. In a civil case the party instituting the suit manages it throughout, through his attorney, who is presumed to understand the law, and for whom the plaintiff therefore is responsible.

In criminal cases the party who prefers the charge is not liable unless it is made maliciously (though it is otherwise of the officer who makes the arrest); for the law encourages the exposure of crime. But if a person procure the arrest of another in a civil cause, a proceeding for his own benefit, and not for that of the public, and which he himself conducts, he acts at his peril if the process be irregular. Carratt v. Morley, supra, and Johnson v. Maxon, 23 Mich. 129, are in conflict with the principal case, Barker v. Braham, and with the more recent decision in Collett v. Foster, 2 Hurl. & N. 356, in which the principal case was followed. See also Painter v. Liverpool Gaslight Co., 3 Ad. & E. 433, where in an action against the defendants for a false arrest in an action of trover the plaintiff had judgment. In answer to the protection. of the warrant which the defendants claimed, Littledale, J., said: “But this is an action against the company themselves; they are the persons who put Parkinson, the collector, in motion, and cause him to demand the rent and seize the goods. It is not he that justifies,

but they who allege that he acted under their authority; they adopt the warrant, and they identify themselves with him throughout the transaction. It was their duty, then, to see that the warrant was a proper one; and as it is not so, for want of a summons, the judgment must be. against them."

As to the rule in criminal cases, see Von Latham v. Libby, 38 Barb. 339; Brown v. Chadsey, 39 Barb. 253; Peckham v. Tomlinson, 6 Barb. 253; Coupal v. Ward, 106 Mass. 289; Josselyn v. McAllister, 22 Mich. 300.

As to the rule in civil cases, see Bonesteel v. Bonesteel, 28 Wis. 245; s. c. 30 Wis. 511.

But these distinctions have sometimes been overlooked, as in Bauer v. Clay, 8 Kans. 580, and Letzler v. Huntington, 24 La. An. 330.

If, however, the process be set aside for error in granting it, it is otherwise; and the action for false imprisonment is not maintainable. The Marshalsea, 10 Coke, 68b; Williams v. Smith, 14 Com. B. N. s. 596; Cooper v. Harding, 7 Q. B. 928; Smith v. Sydney, Law R. 5 Q. B. 203; Simpson v. Hornbeck, 3 Lans. 53. See Gillett v. Thiebold, 9 Kans. 427. "If the attachment [for contempt] in this case," said Williams, J., in Williams v. Smith, supra, "had been set aside on the ground of irregularity, or that it was issued in bad faith, or in any other way equivalent to irregularity, I should have thought that both the attorney and the client would be liable for any imprisonment which took place under it. But upon the facts which appeared at the trial, it is not true that the attachment was set aside for irregularity, or on the ground that it was issued in bad faith. The affidavit upon which it issued was sworn by Smith in the ordinary course of justice; and the Master of the Rolls

[before whom the proceedings for contempt had taken place] was satisfied that it was a proper one upon which to found an attachment. It was not suggested, when the application was made to that learned judge to set aside the attachment, that there was any fault in the affidavit; but merely that the issuing of the attachment was not warranted by the circumstances. The Master of the Rolls, however, came to the conclusion that the facts did warrant the attachment. That opinion of the Master of the Rolls was pronounced by the Lords Justices to be erroneous. That brings the case within that class of cases where it has been held that the party causing process to be issued is not responsible for any thing that is done under it, where the process is afterwards set aside, not for irregularity, but for error."

This judgment of Mr. Justice Williams was pronounced to be a correct exposition of the law in a very recent case before the Queen's Bench. Smith v. Sydney, Law R. 5 Q. B. 203, 206. The question in that case was whether the defendant had acted in bad faith, the plaintiff contending that the judgment upon which the arrest had been made had been set aside for irregularity. But this imputation was negatived, the court held, by the fact that the judge had set aside the judgment upon payment of costs by the present plaintiff; showing that it had been done as a favor. And the court took occasion again to enforce the distinction between the case of an arrest under a judgment set aside for error, and a judgment set aside for irregularity. The former was the act of the court, for which a party could not be liable; the latter was the act of the party himself.

Arrests without Warrant. At common law no valid arrest can be made

for a misdemeanor, either by an officer or a private person, except on the spot. An arrest on suspicion renders the party liable for false imprisonment. Bowditch v. Balchin, 5 Ex. 378; Griffin v. Coleman, 4 Hurl. & N. 265, 270. See Rohan v. Sawin, 5 Cush. 281, where the court held that the act for which the arrest had been made was a felony, recognizing the rule that otherwise the officer's act could not be justified.

So, too, the arrest must be made before the affray has ended. In Baynes v. Brewster, 2 Q. B. 375, the defendant pleaded in justification to this action that the plaintiff had been disturbing his premises in the night-time, and that he had refused, on request, to desist; that the defendant then sent for a constable for the purpose of taking the plaintiff into custody, and thereby preventing him from making further disturbance; that the plaintiff thereupon ran away and was pursued by the defendant and overtaken near by; and that, for the purpose of preserving the peace and preventing further disturbance, he then gave him into the hands of the constable. It was held that the plea disclosed no defence; since it did not appear that the constable had a warrant, or that the breach of the peace had been seen by him, or was likely to be continued or repeated. "No averment," said Lord Denman, "is made as to the plaintiff's intention at the time when he was overtaken; but it is alleged that defendant, in order to preserve the peace and prevent the plaintiff from continuing to disturb the tranquillity of defendant's dwelling-house, and making the noise there during the whole night, gave charge of him to the constable. That is, after the plaintiff has gone from the

dwelling-house, the defendant tells the constable to prevent the plaintiff from doing what it was impossible he should do in the place where he then was.” Williams, J.: "No principle is more generally assumed than that a warrant is necessary to entitle him [a constable] to interfere after the affray is over. It is otherwise where the facts show that the affray is practically going on. That is on account of the obvious distinction as to public danger between a riot still raging and one no longer existing. The language of the plea here falls infinitely short of showing those facts upon the supposition of which alone the argument for the defendant is sustainable. The disturbance appears to have been discontinued before any act was done of which the plaintiff complains. After that, according to the plea, with a view of preventing a renewal of the disturbance, the defendant followed the plaintiff and gave him into custody. This we cannot hold to be a good defence, unless we are prepared to maintain that, wherever a breach of the peace has taken place, the party who has committed it may, no matter at what distance of time and place, be apprehended without a warrant.”

The rule in regard to felonies, as the principal case, Hogg v. Ward, decides, is different; and an officer is justified in taking into custody, without a warrant, one whom he has reasonable ground to suppose guilty of having committed a felony, though in fact none has been committed. Rohan v. Sawin, 5 Cush. 281; Beckwith v. Philby, 6 Barn. & C. 635; Perryman v. Lister, Law R. 3 Ex. 197.

In this particular, that reasonable and probable cause for the arrest is a good defence in felonies, the action

for false imprisonment bears some resemblance to that for malicious prosecution; but the resemblance is superficial. Prosecutions are presumed to have been properly instituted; and hence in an action for malicious prosecution the plaintiff, in order to overcome this presumption, must allege and prove the want of probable cause for the proceeding. In an action for false imprisonment, however, it is not necessary to allege or prove that the act was done without probable cause (unless, perhaps, the declaration allege the imprisonment to have been made in the course of some judicial proceeding); for the act of itself is wrongful, and may not have been committed under legal authority. The presumption, therefore, which arises in the case of an action for malicious prosecution cannot exist; and the defendant, to succeed, must show that he acted upon reasonable and probable cause, where that is a good defence.

In the action for false imprisonment there has been some doubt whether the question of probable cause be one of law or of fact. It has been tacitly assumed in some cases that the question is for the jury; in others, that it is for the court. Rohan v. Sawin, 5 Cush. 281, a leading American case, belongs to the first class; and so do Beckwith v. Philby, 6 Barn. & C. 635, and Brockway v. Crawford, 3 Jones, 433. To the other class belongs perhaps Perryman v. Lister, Law R. 3 Ex. 197. See also the principal case, Hogg v. Ward, where the point was referred to, but not considered.

The point has, however, been expressly decided in several English cases, in accordance with the rule in actions for malicious prosecution, that the question, where the facts are found, is

one of law; and if the facts are not found, the jury are to be instructed that if they find such and such facts, probable cause is made out. See Hill v. Yates, 2 B. Moore, 80; s. c. 8 Taunt. 182; Davis v. Russell, 5 Bing. 354; s. c. 2 Moore & P. 590; Perryman v. Lister, Law R. 3 Ex. 197.

In Swinton v. Molloy, 1 T. R. 537, note, an action of false imprisonment was brought by the plaintiff as purser of a man-of-war against the defendant, who was his captain; and the latter pleaded a justification. But it appeared in evidence that the defendant had imprisoned the plaintiff for three days, without inquiring into the matter; and Lord Mansfield therefore ruled that such conduct on the part of the defendant did not appear to have been a proper discharge of his duty, and that the justification failed.

In Hill v. Yates, above cited, the court followed the law of malicious prosecution as it had been settled in Sutton v. Johnstone, 1 T. R. 493, 794; Mr. Justice Dallas, saying, "Since the case of Sutton v. Johnstone, the question of probable cause is a matter of law, and cannot be left to the jury." This was said upon an application for a new trial, made on the ground of misdirection on this point by the judge at nisi prius.

In Davis v. Russell, supra, the point was again raised, and was elaborately argued. The question of probable cause had been left to the jury; but in such a way, as the direction was construed on appeal, as to show that if the evidence were believed, the defendant had established probable cause for the arrest. Best, C. J., said: "The question of probable cause is, no doubt, a question for the judge; but the jury must find the facts which are supposed

to constitute the probable cause, and it is sometimes difficult to draw the line between the law and the fact. It has been argued in effect that if the jury had intimated their belief of the facts, the plaintiff ought to have been nonsuited. But on these facts the judge could not properly have directed a nonsuit. It was necessary to leave to the jury whether, admitting the facts, the defendant acted honestly; for if he did not, . . . the verdict ought to have been against him, and with heavy damages. But the learned judge tells them, If you believe the facts, and thence infer that the defendant was acting honestly, you must find for him.' This was saying in substance that, in his opinion, the facts, if believed, furnished a probable cause for the defendant's conduct. But if the direction to the jury were on the whole substantially right, a mere inaccuracy of expression will not render it necessary to have recourse to a new trial. This direction was substantially right. It was for the jury to say whether they believed the facts; and if they believed them, whether the defendant were acting honestly; in other words, whether the jury, under the same circumstances, would have done as he did." Mr. Justice Park said he had never had a doubt that it was the province of the court to decide the question of probable cause. 66 "But," said he, as that must be compounded of the facts, and as the jury must decide on them, my practice has been to say, You are to tell me whether you believe the facts stated on the part of the defendant, and if you do, I am of opinion that they amount to a reasonable and probable cause for the step he has taken." And Mr. Justice Gaselee, before whom the case had been tried at nisi prius,

said that he had never meant to leave to the jury the question of probable cause.

In Perryman v. Lister, Law R. 3 Ex. 197, the question was whether the fact that the defendant had neglected to make certain very natural inquiries (there being a ready and obvious mode of ascertaining the truth) before making the arrest was a proper element in determining the question of probable

cause.

The judge at the trial had considered the neglect as important, and had ruled upon it that there was no probable cause for the arrest; and his ruling was sustained in the Exchequer Chamber. Though there had been some difference of opinion in the Court of Exchequer upon the precise point in issue, it was conceded by all of the judges that the general question of probable cause was a question of law.

The weight of authority is clearly this way; and on principle there is no ground for diversity on this point between the two actions. (For a consid eration of the subject of probable cause in other aspects, reference may be made to the note on Malicious Prosecution.)

But while an officer may arrest for felony, without warrant, where none has been committed, if he has reasonable ground for his action, a private citizen can only so arrest on suspicion when a felony has been committed. He may arrest without warrant on the spot, personally or by calling an officer; but he can only justify for an arrest on suspicion by showing that a felony had actually been committed, and that he had probable cause for arresting the plaintiff for the crime. See the principal cases, Timothy v. Simpson and Allen v. Wright; also Beckwith v. Philby, 6 Barn. & C. 635, Lord Tenterden.