DAVIS v. JOHNSON et al., 101 F. 952

WADDILL, District Judge, after stating the facts as above, delivered the opinion of the court. The assignments of error present for the consideration of the court quite a number of questions, but those specially relied upon involve the correctness of the court’s ruling on the demurrer to the declaration, and in instructing a verdict for the defendants as aforesaid. The difficulty in argument between counsel as to the 'propriety of the court’s ruling on the demurrer arises from their inability to agree as to whether the first two counts in the declaration are for false imprisonment or malicious prosecution.

If the two counts are for malicious prosecution, the court’s ruling is manifestly correct. Malice and the want of probable cause must be averred and proved in an action for malicious prosecution, the fact that the defendants procured or instigated the prosecution, and that the same has ended and resulted favorably to the plaintiff. Wheeler v. Nesbitt, 24 How. 544, 16 L. Ed. 765; Stewart v. Sonneborn, 98 U. S. 195, 25 L. Ed. 116; Staunton v. Goshorn, 36 C. C. A. 75, 94 Fed. 52.

In the counts in question no averment whatever is made as to the ending of the prosecution, which of itself makes them entirely insufficient as counts in an action for malicious prosecution. But we do not conceive the counts to be for that cause of action. They are for false imprisonment, as distinguished from malicious prosecution; and while it is true the issuance of the warrants, under which the arrests of the plaintiff in error were made, are set forth with some detail, it is by way of inducement merely, and not intended to be the gravamen of the action.

It was for the subsequent arrest and imprisonment, by virtue of the warrants, that the suit was instituted to recover damages; and as counts in a declaration for false imprisonment they are good, and contain the essential averments necessary to a good declaration in this cause of action. The first count, after setting forth the issuance of a certain order of arrest against the plaintiff in error by the defendant in error Johnson, at the instance of his co-defendant J. P. Ellis, and the execution thereof by the defendant in error John F.

Chew, and the arrest and detention of the plaintiff in error by said Chew, avers that said acts were done maliciously, and without authority of law, and for the purpose of harassing, oppressing, and imprisoning said plaintiff in error, and without any reasonable or probable canse, for the purpose of forcing him to accept service of a summons in a certain civil suit instituted by said Ellis against the plaintiff in error.

The second count sets forth the same cause of action, except that the arrest and detention of the plaintiff in error was by virtue of a certain civil warrant issued and executed by the same parties under the circumstances above set forth.

The third count is for the same cause of action, describing it in another way, and setting forth the issuance of the summons in the civil suit, and the swearing out of a warrant for cruelty to animals; and in this count the defendants in error are, one and all, charged to be conspirators, and that what they did was the result of a conspiracy to force the plaintiff in error to pay a debt to the defendant in error Ellis.

In this latter count the same averments as to the want of probable cause, the existence of malice, the want of authority on the part of the defendants, and each of them, are likewise made, and the fact that by virtue of said summons and order of arrest the plaintiff in error was taken in custody, and detained and held without lawful authority for a long space of time. Newell, Mal. Pros. p. 360; Parsons v. Harper, 16 Grat. 64; Scott v. Shelor, 28 Grat. 891; Womack v. Circle, 29 Grat. 192; Vinal v. Core, 18 W. Va. 6, 7; Josselyn v. McAllister, 22 Mich. 300, 307; Raysdale v. Bowles, 16 Ala. 62; Rich v.

McInerny, 103 Ala. 345, 15 South. 663; 12 Am. & Eng. Enc. Law (2d Ed.) 28, note 1, and 731, end of note 6.

In the trial court, the demurrer to the first and second counts of the declaration having been sustained, the case was tried solely upon the third count; and under that count the lower court held that, in order to maintain the prosecution, it was necessary to prove a conspiracy, thereby, in effect, treating the count as one in an action for conspiracy, as distinguished from one for false arrest and imprisonment; the learned judge charging the jury as follows: “I have no hesitancy in saying that both Ellis and the constable behaved very badly, and if they had been sued before this court for having illegally restrained a citizen of his liberty by false imprisonment, and the fact had been properly established, they would have heard of it in a way they would never have forgotten.

This is not the case. This case is a charge of conspiracy,— of a conspiracy to collect this debi, — and there is no evidence of the conspiracy here.” We think the lower court erred in this ruling. The third count is not for a writ of conspiracy, but a count in an action on the case for false imprisonment, and under it, if the evidence established a case of false arrest and imprisonment against the defendants in error or either of them, the plaintiff in error would be entitled to recover. 4 Minor, Inst. pt. 1, p. 401.

In the writ of conspiracy recovery can only be had against all of the defendants, or .certainly two of them; and, if the evidence showed two of them to he not guilty, no recovery could be had against the third, it mattered not how guilty he may have been. Prof. Minor says that the writ of conspiracy, though existing theoretically, has for several generations been superseded in practice by the more convenient remedy of the action of trespass on the case. The leading English case on this subject is that of Skinner v. Gunton, 1 Saund. 228. In 1 Bac.

Abr. p. 139, discussing actions on the case for conspiracy, the following language is used: “If an action be brought against several, and one only be found guilty, it is sufficient; for there is a great difference between the action on the case in the nature of a conspiracy and the writ of conspiracy at common law, and in this ease the damage sustained is the ground of action.” In 4 Enc.

Pl. & Prac. p. 738: “An action on the ease has, in modern times, taken the place of tho writ of conspiracy which lay at common law. * * * In the action on the case in the nature of a conspiracy, the conspiration or conspiracy is not the gist of the action; for the allegation of the conspiracy is mere surplusage, intended as matter of aggravation, and is therefore not necessary to support the action which is founded upon damages alone [citing many authorities; both English and American].” In Van Horn v. Van Horn (N. J. Sup.) 20 Atl. 485, 10 L. R.

A. 184, Scudder, J., delivering the opinion of the court, says: “The distinction is now well established that in civil actions the conspiracy is not the gravamen of the charge, but may be both pleaded and proved as aggravating the wrong of which the plaintiff complains, and enabling him to recover against all as joint tort feasors. If he fails in the proof of a conspiracy or concerted design, he may still recover damages against such as are shown to be guilty of the tort without-such agreement [citing Pol. Torts, 267; Garing v. Fraser, 76 Me. 37; Hutchins v. Hutchins, 7 Hill, 104; Jones v.

Baker, 7 Cow. 445; Parker v. Huntington, 2 Gray, 124; and many other cases].” For these reasons the judgment of the lower court is reversed, at the cost of the defendants in error, and the case remanded to said court, with instructions to grant a new trial therein.