[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 465 This case was tried as though it were an action for malicious prosecution. In such an action the burden was upon the plaintiff to show a want of probable cause. No such evidence was given, and, therefore, as such an action, the case was properly disposed of. *Page 466
But the allegations of the complaint are for an illegal arrest and detention. Such acts constitute what is usually denominated an action of false imprisonment; an action in the nature of a trespass for a direct wrong or illegal act, in which the defendant must have personally participated. (Johnstone v.Sutton, 1 Tenn. Rep., 544.) Or the act must have been by his direct or indirect procurement. (Hopkins v. Crowe, 7 C. P., 573.) The gist of such an action is an unlawful detention, and motive will be inferred so far, at least, as to sustain the action; and evidence to disprove actual motive only bears upon the question of damages.
Probable cause, or reasonable ground, for suspicion against a plaintiff, affords no justification for an arrest or imprisonment, unless a felony has actually been committed; in which case the burden of proving that a felony had actually been committed, and the facts relied upon to establish probable cause, or reasonable ground for suspicion, is upon the defendant.
As a general principle, no person can be arrested or taken into custody without warrant. But if a felony, or a breach of the peace, has, in fact, been committed by the person arrested, the arrest may be justified, by any person, without warrant, whether there was time to procure a warrant or not; but if an innocent person be arrested upon suspicion by a private individual, such individual is not excused unless such offence has, in fact, been committed, and there was reasonable ground to suspect the person arrested. (Hale's Pl. Cr., 72; 1 Chit. Cr. Law, 15; Hally v.Mix, 3 Wend., 353.) Lord MANSFIELD said, in Samuel v. Payne (Doug., 346): "If a felony has been committed, any man, upon reasonable probable ground of suspicion, may justify apprehending a suspected person and carrying him before a magistrate. See alsoHobbs v. Beaumont (3 Camp., 420); West v. Baxendale (9 Com. Bench Rep., 141).
This question of probable cause, or reasonable ground for suspicion, whether it arises in actions for malicious prosecution or false imprisonment, is one of law, unless the evidence *Page 467 out of which it arises is conflicting; in which event it is the duty of the court to instruct the jury what facts, if established, will constitute probable cause, and submit to them only the question as to such facts. (Bulkley v. Ketteltas,6 N Y, 384.)
In this case there was no dispute about the facts bearing upon the question of probable cause. It was undisputed that a felony had been committed; that plaintiff was in the house at the time it was committed, and that she left shortly after. There was not, therefore, any question for the jury. The question was simply one of law, and, as such, the proof showed a reasonable ground for suspicion against the plaintiff.
Therefore, conceding that defendant entered a complaint against the plaintiff, that he actually assisted in her arrest, a complete justification was established.
The nonsuit was right, and the judgment should be affirmed.