#### Ellen Burns, by her guardian, plaintiff, *vs.*Charles Erben, who was impleaded with Thomas Frost, defendant.

1. A complaint which only alleges, in substance, that the defendants maliciously, and with intent to injure the plaintiff, illegally and without warrant, arrested and by force compelled her to go to a police station, and there restrained her of her liberty, merely states a cause of action for illegal arrest or false imprisonment, and not one for malicious prosecution.

2. In such action the question of prohable cause does not arise. If the arrest was made by competent authority, there was no trespass; and the action would not lie even were the arrest maliciously procured and without cause. *Per*Mokell, J.

8. The Metropolitan Police of New York are authorized by law to arrest persons suspected by them, without a warrant, where there is reason to believe a felony has been committed.

4. A private person who merely states to the officers of police what he knows of the offense, and his opinion that there is ground for the arrest, but without making any charge or requesting an arrest, does not thereby render himself liable to an action for illegal arrest.

(Before Moncrief. Robertson and Monell, JJ.)

Heard October 21, 1863;

decided December 26, 1863.

Exceptions taken on the trial, and directed by the court to be heard at general term in the first instance, judgment meanwhile to be suspended.

The plaintiff, by her guardian, (Mr. Chester,) brought this action» against the defendants (Erben and Frost,) to recover damages for her arrest on a charge of felony.

The complaint alleged in the following terms, that on a day named, “at the city of New York, the defendants maliciously and with intent to injure said plaintiff, illegally and without warrant,” arrested “said plaintiff, by force,” compelled her “to go with them to a certain police station house in said city, and detained her there restrained of her liberty, for a long space of time, without reasonable cause, and without any right or authority so to do, and against the will of said plaintiff, to her damage,” &c.

The defendant Frost, who was a policeman, suffered judgment by default. The defendant Erben answered, *denying**556each allegation of the complaint, and set np as a justification that a quantity of silver had been stolen from his father’s house. That the plaintiff was at the time within the house, and was reasonably liable to be suspected and was suspected of being guilty of, or privy to, the felony. That complaint was made by the defendant Frost, accompanied by Erben, to a captain of the police, who directed him to bring the plaintiff to the police station; that he, Frost, requested the plaintiff to go with him to the police station; that she went voluntarily, and, after being examined, was suffered to go at large.

The cause was tried on the 14th day of May, 1863, before Justice Mohell and a jury.

It appeared by .the evidence, that on the evening of the 6th of July, 1861, a quantity of silver of the value of about $200, belonging to Mr. Henry Erben, was stolen from his dwelling house, between the hours of eight and ten o’clock. The defendant Erben was the son of Mr. Henry Erben, and at the time mentioned, was residing with his father. On that evening, no stranger othek than said Ellen Burns was known to have been within such house. She came to the house about eight o’clock and left it about half past nine o’clock, about which time the commission of the felony was discovered. The silver was in a sideboard in the basement, at the time she entered .the house.

The defendant Erben stated the suspicious circumstances to a sergeant of the metropolitan police at the station house; and the defendant Frost, after personal investigation at the dwelling house where the felony was committed, and by direction of his superior officer, arrested the plaintiff. The defendant Erben accompanied the officer, but had no other participation in the arrest than as above stated.

The court, after hearing the evidence, ordered the action to be dismissed as to the defendant Erben, and six cents damages against Frost, on the ground that the evidence showed probable cause for the arrest, and that it was the province of the judge and not of the jury to judge whether the evidence did establish such cause.

*557The court further directed the plaintiff’s exceptions to be heard in the first instance at general term, and judgment to be suspended.

*E. W. Chester,*for the plaintiff.

I. When the question arises on evidence as to probable cause or reasonable grounds of suspicion, it is the province of the jury to decide the facts, under the charge of the court. *(Barb. Cr. Law,*544. *Beckwith*v. *Philby,*6 *Barn. & Cress.*637.)

II. In this case the want of reasonable ground of suspicion was distinctly proved.

III. The question is not here whether the officer had reasonable grounds of suspicion, Ije having confessed by his default that he had not, but whether the party who caused the arrest had. He had the means of knowing, and did know from his own witness, that he had none.

IY. The officer who acts upon a complaint may be justified, but the party who makes the complaint, if false, will be liable. *(Samuel*v. *Payne, Doug.*359. *Hobbs*v. *Branscomb,*3 *Camp.*419.)

*Otis D. Swan,*for the defendant.

I. There being no dispute concerning the material facts in evidence, the question of *probable cause*was purely a question of law; and inasmuch as upon the uncontradicted' evidence in the case, there was a probable cause for the arrest of the plaintiff, the judge, who presided at the trial, was bound to nonsuit the plaintiff as to the defendant Erben.

1. A felony had been committed. By express enactment a metropolitan police officer has all the common law and statutory powers of a constable. *(Laws of*1857, *chap.*569, *p.*200, § 8.) The authority of a constable (and perhaps even a private" individual, *Holly*v. *Mix,*3 *Wend.*350,) to arrest without warrant in cases of felony, and even upon suspicion that a felony has been committed, though it should subsequently appear that no felony had been committed, is fully *558established. (1 *Hale, P. C.*587. 5 *Dane’s Abridgment,*588. 1 *Chitt. Cr. L.*15, 17. *Beckwith v. Philby,*6 *B. & Q.*638. *Samuel*v. *Payne,*1 *Doug.*359. *Davis*v. *Russell,*5 *Bingham,*354.) The question of the necessity for an *immediate*arrest, is one to be determined by the officer, and not a question to be reviewed elsewhere. *(Rohan*v. *Sarwin, 5 Cush.*281.)

2. When there is no dispute about facts, it is the duty of the court on the trial to apply the law to them. Probable cause is a mixed question of law and fact *only*when there is conflicting testimony in respect to the circumstances adduced to show the existence of a probable cause. In the case at bar, there was no dispute about the material facts, and no impeachment of witnesses. The plaintiff was nonsuited as to the defendant Erben, because the cause of action alleged in the complaint, was not established, viz. want of probable cause. *(Masten*v. *Deyo,*2 *Wend.*424. *Bulkeley*v. *Ketteltas,*2 *Seld. 384. Besson*v. *Southard,*6 *id.*236.) The gist of. the action is want of probable cause; and the plaintiff must show it to maintain his action. *(McCormick*v. *Sisson,*7 *Cowen,*715. *Rudd*v. *Davis,*3 *Hill,*287.)

II. Assuming that the defendant Erben participated in the arrest, by direction of the officer, his act was justifiable to the same extent as that of the officer. *(Hilliard on Torts, p.*454. *Payne*v. *Green,*10 *S. & M.*507. Elder. v. *Morrison,*10 *Wend.*128. *Oystead*v. *Shed,*12 *Mass. R.*511.)

III. There was no evidence showing participation by the defendant Erben in the arrest. He did not direct, advise, or request the arrest. He was a mere bystander; and was present when the arrest was made, merely by -reason of his interest in the stolen property of his father.

By the Court, Robertson, J.

The language of the complaint is susceptible of no other interpretation than a charge of illegal arrest, detention and restraint of liberty. The action is one for false imprisonment, therefore, and not for malicious prosecution, which is a species of slander or libel, leading to *559peculiar injury, to wit, arrest by process of law. Undoubtedly in the latter case the plaintiff'is to make out the negative, to wit, a want of probable cause; but slight evidence only is sufficient for the purpose. If the facts sworn to by the malicious prosecutor do not furnish prima facie grounds to infer that a crime has been committed, only the magistrate issuing a warrant is guilty of false imprisonment.

The metropolitan police act allows the officers of police to arrest persons suspected by them, without a warrant, where there is reason to believe a felony has been committed, *(Laws of*1857, *p.*200, *oh.*569, § 8 ;) a very dangerous power, unless an immediate investigation is to be had by some magistrate. In this case a felony had been committed, and the plaintiff was arrested on the suspicions of a sergeant of police, by the defendant Frost, who was a roundsman merely.

I do not find evidence enough to implicate Erben in the arrest. He merely disclosed what he knew, and only expressed an opinion that there was enough of suspicion against the defendant to have her examined. He did not request or urge any arrest, but left it to the officer at the station house to decide on its propriety. Nor did he make any charge. Such officer apparently exercised the authority given him by law, of arresting persons suspected by him.

The plaintiff has recovered against the officer nominal damages, which need not be interfered with. But the complaint was properly.dismissed against the defendant 'Erben.

Monell, J.

The complaint in this action alleges that the defendants illegally and without warrant *arrested*the plaintiff, and by force compelled her to go to a police station house, where they detained and restrained her of her liberty, without reasonable cause.

Upon the trial before me, and also upon the argument of the exceptions at the general term, the action was regarded by counsel on both sides, as one for a malicious prosecution and not for a false imprisonment.

An examination of the complaint, however, has satisfied us *560that the only cause of action stated therein, is for an illegal arrest or false imprisonment. In such action the question of probable cause can not arise. *(Sleight*v. *Ogle,*4 *E. D. Smith,*445. *Peckham*v. *Tomlinson,*6 *Barb.*253. *Waldheim*v, *Sichel,*1 *Hilt.*45.) If the arrest was made by competent authority, there was no trespass, and an action for false imprisonment will not lie, even though the arrest was maliciously procured, and without cause.

The police of this city are clothed with all the common law and statutory powers of constables, (§ 8, *Metropolitan Police Act, Sess, Laws*1857, *ch.*569,) who, in case of a felony actually committed, are authorized to arrest the accused without warrant. *(Holley*v. *Mix,*3 *Wend.*350. *Barb. Cr. Law,*472.) And the police act further authorizes the police, where there is just cause to suspect that a felony has been committed, to take into custody all persons suspected of being concerned therein.

The arrest, therefore, made by the defendant Frost, who was a roundsman of the police force, was lawful, and no action could be maintained against him. He having suffered a default, the plaintiff was entitled to nominal damages, and no more.

The defendant Erben did not make the arrest. He went to the station house and related the occurrence to the sergeant of police, and expressed the opinion that there was ground for suspecting the plaintiff. Upon this the sergeant directed Frost to make the arrest.

Whether there was or not a want of probable cause, it is not necessary to examine, inasmuch, as for the reasons already stated, the action can not be sustained.

I concur in the opinion that the complaint, as to the defendant Erben, was properly dismissed.